Secrecy
Rubberstamping
Overview
Rubberstamping is the common but often overlooked practice of courts that handle post-conviction review accepting proposed fact findings and orders from prosecutors without making their own rulings. In many cases, courts have adopted these proposed orders without even checking for typos or changing the headings. When a state court rubberstamps a prosecutor’s fact findings, they become the court’s fact findings, to which other courts must then defer in future appeals.
Data from Harris County, Texas
A 2018 study of capital post-conviction proceedings in Harris County, Texas, the nation’s most prolific county for executions, found that judges adopted prosecutors’ findings of fact in 96% of cases in which factual issues were contested. The authors of the study, Jordan Steiker, James Marcus, and Thea Posel, argued that the practice of rubberstamping and the accompanying “reluctance of state trial courts to conduct evidentiary hearings to resolve contested factual issues,” “undermine the accuracy and fairness of the death penalty.” The “inadequate development of facts” caused by this “one-sided consideration of contested factual issues,” the researchers wrote, “prevents Harris County post-conviction courts from enforcing federal constitutional norms.” In many of the rubberstamped cases, the prosecutors’ fact findings were contradicted by the record, yet they were accepted wholesale by the court.
Of the 40 judges for whom the authors could find reliable data, 34 (85%) “adopted every single finding of fact and conclusion of law proposed by the state verbatim” in every case. The researchers found several indications that judges did not even read the proposed fact findings: short periods of time (less than a day) between filing and acceptance, misspellings and typos from proposed fact findings that appeared in the rubberstamped orders, and handwritten notes indicating ex parte communications between judges and prosecutors. Of the 185 written opinions in which a judge denied a post-conviction hearing, the judge had written their own opinion in just two.
Examples of Rubberstamped Cases
Ray Freeney
Ray Freeney, a death-row prisoner from Harris County, Texas, was denied U.S. Supreme Court review of his appeal on May 20, 2019. He had sought review of the rubberstamped findings of Texas courts. When his case came before Texas District Court Judge Renee Magee, his appeal lawyers sought a new sentencing hearing because his trial lawyers had failed to investigate and present to the jury evidence that Freeney suffered from mental illness and had been the victim of chronic child abuse. Judge Magee, who had spent 19 years as a prosecutor in the Harris County District Attorney’s Office, asked for briefs, and received 204 proposed findings of fact from the prosecution, based on over 800 pages of testimony. The next day, she adopted the factfinding verbatim. The defense was not given an opportunity to respond to the prosecution’s filings. The U.S. Court of Appeals for the Fifth Circuit deferred to the state court factfinding and upheld Freeney’s conviction. “The message sent to state judges by the Fifth Circuit in Mr. Freeney’s case was clear,” says Richard Bourke, one of Freeney’s attorneys. “You don’t need to consider the defense’s legal arguments. You don’t need to consider the defense’s evidence. You don’t even need to wait until the defense has presented either. You can just rubber stamp the state’s brief. And you needn’t worry about the Fifth Circuit overruling you.” Washington Post columnist Radley Balko wrote, “When you have such egregious inattention to facts and lack of stewardship of constitutional rights as we’ve seen in Harris County, the entire system begins to look like a farce.”
Juan Castillo
Juan Castillo was executed in Texas on May 16, 2018. He had faced a December 2017 execution date, but the Texas Court of Criminal Appeals granted him a stay on November 28, 2017 and directed the trial court to resolve his claim that prosecutors had violated his rights by presenting false or perjured testimony from a prison informant. Two days later, on November 30, the Bexar County District Attorney’s office submitted proposed findings of fact and a proposed order to deny Castillo’s petition without a hearing. The next day, on December 1, Judge Maria Teresa Herr adopted the prosecution’s proposed findings and order verbatim — changing only the signature line on the order — without permitting Castillo’s lawyers to submit proposed findings or to respond to the prosecution’s submission. The Texas Court of Criminal Appeals upheld that ruling and the U.S. Supreme Court declined to intervene.
