Retired Judge Elsa Alcala on the Death Penalty in Texas

Anne Holsinger 0:01 

Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, Managing Director of the Death Penalty Information Center. Our guest today is Judge Elsa Alcala, who served as a judge on the Texas Court of Criminal Appeals from 2011 to 2018. In addition to serving as a judge at the appeals and trial level, she’s worked as a prosecutor, criminal defense attorney and justice-reform-lobbyist during her three decade career in criminal law. After leaving the bench, she worked as Policy Director for the Texas Defender Service, a nonprofit that seeks death penalty reform and represents capitally charged defendants. Thank you for joining us, Judge Alcala. 

Elsa Alcala 0:38 

Thank you so much for having me. I appreciate it. 

Anne Holsinger 0:41

You were appointed to the Texas Court of Criminal Appeals by Governor Rick Perry in 2011 and subsequently won election to a six year term in 2012. But, upon the terms completion in 2019, you opted not to seek re-election? Could you briefly explain why you decided not to seek re-election? 

Elsa Alcala 0:58 

Thank you for asking that question. It’s actually a long and difficult answer for me, but the simple answer is: I did a list of pros and cons and the cons far outweighed the pros of staying. By then, I’d been a judge for 20 years and I was being very impacted by the death penalty litigation. While I was on the court, 60 people were executed, which was at the rate of about one person every month and the number of people being killed by the government was significantly bothering me — partly because I felt it was excessive, partly because I felt some of them didn’t deserve to be executed, at least not at that time. I had worries on a couple of occasions that the person might have been innocent. On several occasions, I had concerns that the person had not had a fair shake, either at trial or on appeal or in the habeas litigation, and that they should have gotten at a minimum, a new sentencing hearing. So I was having a lot of concerns about the litigation, and I was writing about them quite a bit, but it was difficult for me to keep up with that pace. I wrote 117 dissenting opinions, which is a lot for any Supreme Court judge and that, that meant I was writing a dissent one every three weeks, plus I wrote 88 majority opinions. So I was working at a pace that was almost impossible for me to keep up with, it had completely taken over my life. I also feel like I had a mild case of PTSD from dealing with all of the death cases and the stress of the litigation. And I don’t want to overstate anything, but I did feel like it was taking a toll on my mental state and on my physical state, even. And so I just felt like the best thing overall was for me to leave. But I felt a lot of guilt about it because I knew that when I left, there really wasn’t going to be anybody there at the Court of Criminal Appeals in Texas, who would be saying the things that I was saying. I was the only one speaking out on a variety of issues and I knew that my voice needed to be there, but I also knew that I couldn’t be the only person carrying that burden for, for, for much longer. And so I just made what I felt was the best decision overall, to retire at that time from the court. 

Anne Holsinger 4:03 

That pace that you talked about of executions actually leads well into the question I wanted to ask next, which is, you know, Texas does lead the nation in execution. There have been 587 since 1976 and that’s nearly five times as many as Oklahoma, which has the second highest number, and the Texas Court of Criminal Appeals has to review every one of those cases. So how did serving on the bench and reviewing all of those cases affect your perspective on capital punishment? 

Elsa Alcala 4:31 

What the pace did for me was to convince me that government has no no right, no, no, no place in taking another person’s life. I think human beings are too imperfect to make the ultimate decision to take anyone’s life. And I’m not saying that as a matter of opinion, I’m saying that as a matter of fact. And I say that because what we know today is that we have gotten a large number of cases wrong. According to the National Registry of Exonerations, between 1989 and 2022, 2,939 people were exonerated, they were in wrongly convicted of crimes for which they were innocent. And when I was on the court, we found the San Antonio Four ladies to be innocent, we found Steven Chaney to be innocent. And in Texas, 101 innocent people were given money judgments, who were wrongly convicted between 1990 and 2015. So this is not just an opinion that innocent people are wrongly convicted, and I believe executed. This is a fact. I think there are some very persuasive cases of innocent people in Texas who were innocent, who were wrongly executed. And two of those come to mind, in in my mind. One was Carlos DeLuna, who was executed in 1989, out of Corpus Christi, for a crime out of Corpus Christi, Texas. And the other one is David Spence, who was executed in 1997 for a crime out of Waco. I think it was the lead and police detective in this man’s case, ended up coming out and saying that he did not believe Spence had committed the crime. So I saw that in a large number of cases, whether it was death cases or non-death cases, there was a large number of claims of innocence, and even a larger number of people who had very persuasive cases that their trials had been unfair for a variety, variety of reasons, either defense counsel was ineffective, or the prosecutors had cheated and hidden evidence, or not revealed exculpatory evidence. There was DNA evidence, like in the Larry [Swearingen] case, who was executed while I was on the court. In [Swearingen’s] case, it was just a horrific crime out of Montgomery County, and so everybody seemed to focus on the horror of the crime and they decided that there was some evidence against [Swearingen], and in my mind, there was some evidence against him, but there was also a ton of untested DNA evidence that the prosecutors for a long time fought against having tested because they relied on the claim that [Swearingen] should have asked for that testing before he did, and therefore it was too late. And that’s kind of a laughable argument, except that the prosecutors were raising that a lot, in a lot of cases, and continue to do that in a lot of death penalty cases. They say, ‘Well, you know, it’s past the time, you should have done A, B, C, or D earlier than now. And now it’s too late.’ So I saw all of those problems while I was on the court and I became convinced that the risk of executing an innocent person is just too high and that too many prosecutors and judges are overly focused on making the crimes or the convictions for the crimes final. They’re more interested in finality than they are in the accuracy of the conviction or the sentence. Once I became convinced of that, becoming anti-death penalty was, was pretty simple. For a long time, I used to say, well, you know, yes, the system is all messed up, but we need to have the death penalty for those rare cases when there is just this terrible crime, like a serial killer or terrorism or something like that. But then the more I worked on the cases, the more I realized that the serial killers and the terrorists rarely get the death penalty, because they end up with with far superior lawyers who are appointed by the courts and those lawyers are able to convince jurors not to give the death penalty. The people who end up with the death penalty, in, at least in Texas, historically, were poor people who were people of color. And so when I realized that discrepancy between who was getting the death penalty, the types of crimes that we’re having the people get the death penalty, the risk of convicting an innocent person, I became convinced that we had to abolish the death penalty altogether. 

Anne Holsinger 10:35 

Thank you for sharing your perspective on that. The United States is one of the only countries that elects its judges, could you talk about how the realities of having to run for re-election affect judicial decision making? 

Elsa Alcala 10:48 

Yes. And I left that part out when I talked about why I retired. Ultimately, that’s why I retired. My term was finishing, and I had to make the decision whether I was going to run again for another term, or whether I just didn’t want to do another election. I ran for, I was appointed by, three times by Texas governors to the three courts I was on and I won four elections to stay on my court. So I never lost an election, but I did feel like I was vulnerable if I ran again. I was a Republican back when Republicans were not like, in my opinion, today’s Republicans. I am now a Democrat, I switched to become Democrat. But I was a Republican back when Republicans talked about compassionate conservatism and that sort of thing and broaden-, broadening the tent and I felt like, you know, strict enforcement of a constitution – which I felt I was doing on the Court of Criminal Appeals – all of that was consistent in my mind with the old brand of Republican. Something changed when Donald Trump entered the field and I don’t want to go far into politics, because I know this is not a political forum, but I’m simply saying that things in my mind at least changed and I didn’t want, I didn’t like where the party was going. So today’s Republicans, in my mind are different. In 2024, just last month, three judges out of the nine judges on the Texas Court of Criminal Appeals lost in the Republican primary. One of them was Sharon Keller, who I think has been on the Court of Criminal Appeals over 20 years, I think, almost 30 years, if not 30 years. And she was about as Republican and far right as I could ever tell you and I say that because many people felt that she was one of the strongest voices and in favor of the death penalty and denying claims of innocence and for new trials and that sort of thing. She was very much a far, a conservative for whatever that means, a conservative person in terms of opposing relief for many people seeking relief from the death penalty or, or with claims of innocence. Barbara Hervey also last last month, she too was was aligned with the Republican Party for decades. She was a little more moderate than Judge Keller, but but moderate under Texas standards, which is to say not that moderate, for, you know, for what most people will consider as moderate. And then the third person who lost was the person who replaced me on the court, Michelle Slaughter. She lost after one term and she was also very conservative and not, and more aligned, I think with a prosecutor mentality than with a defense mentality. So the three judges who lost, were firmly entrenched in the Republican Party, and it’s peculiar that they lost. They lost to three people who some people believe are even more conservative or far right than even they were, which is hard to believe that that’s possible. And so when I spoke about you know, this, this thought that I might not survive a primary, it was a very realistic view of Texas Republican politics. Now, you might be asking at this point, if you’re not from Texas, well, why did these three longtime far-right, conservatives lose in the Republican primary? And media reports, and I think all this is has been verified, the story is that they ruled against Ken Paxton, who is the Texas Attorney General, the incumbent right now, on an issue, on an election issue, that he wanted to be able to prosecute elections violations and the Court said that he couldn’t do that because the Texas Constitution didn’t allow it. And he was unhappy with that ruling and so he ran three people against them, and they lost their seats. So we’re in a pretty dangerous area here where judges are being targeted, not for some kind of radical ruling, because that was not radical, most of us believe they ruled correctly, and strictly in line with what the Texas Constitution said, but instead, they lost their seats, because someone high up in the Republican Party decided that they should have ruled his way regardless of what the law was. And I think that’s, that should concern most of us. Now, what that’s going to do to the court looking forward assuming these three win, most of us believe they will win, not because they are the most qualified over their Democratic opponents, rather, it’s just based on history. Texas has not elected a Democrat to a state-wide office, which the Court of Criminal Appeals is, in something like almost three decades. So the probability is that the three Republicans who just won, will be on the court starting in, starting January 1 of 2025. And so then the issue is going to be how much do they change the court? Are they going to try to, I don’t, I think one of them has judicial experience, two of them do not. So they’re, and I think one of them has some criminal law, one has more criminal law experience than the other two. So many criminal practitioners in Texas are a bit worried about what this is going to, to do to the law, are they going to stick with precedent? Are they going to just abandon it altogether and do whatever they want to do? And if and if they’re going to do the latter, then, you know, unfortunately, that might mean that they’re going to do an even worse job of granting relief to criminal defendants. However, you know, I was not lost at this point. I foresee a five-four court because only three of them are new. Kevin Yeary has been one of the far right judges aligned more with like the Ken Paxton mentality, so even assuming those three go to that extreme with Kevin Yeary, I think that leaves a court of five judges who are incumbents, who will hopefully stick with the precedent that they have. It’s not that the precedent is fantastic for criminal defendants or for people to get relief, but it has granted some relief to some people and if the incumbents stick with the precedent, then then all is not lost with the election of these three people. But I think we’re just going to have to wait and see. Of course, the other problem is this message to the incumbents. Look, if you don’t do what I want you to do, then I’m going to run people against you and you’re going to lose your seat — hopefully that the incumbents won’t be afraid of that kind of threat. They’re all the incumbents that are not the four extremists that I talked about. They are talented people who would be able to get a job other places so in my mind, it’s better they stick with the, with having their own integrity than to being afraid of losing their job. And I hope that they they they choose integrity over implied threats. I don’t know that there is any actual threat but the implied threat that, you know, these three judges lost their seats because they didn’t do what we, we Republicans at the top wanted them to do and if you don’t do what we Republicans at the top want you to do, the implied threat would be that we’re going to run somebody against you as well. But of course, that’s all implied I don’t think there’s been any kind of actual threat. 

Anne Holsinger 20:25 

You’ve just given us several examples of ways that the impartiality and integrity of the court system has come under scrutiny in recent years. Are there changes that you think should be implemented in the judicial system to help restore public confidence? 

Elsa Alcala 20:41 

I can think of many. When I worked with the Texas Defender Service as a lobbyist at the Texas Legislature in 2019, we wrote a number of bills that, that drew the support of elected district attorneys in Texas. So I don’t really want to ever give the message that, that these reforms are one sided. Many, many prosecutors also support reform, because they too want to have some, bring back some kind of integrity to the justice system, in order to bring back public confidence. One of our bills, and one of the things I think that would be, that some states have done to some degree, is to have an out of time motion for new trial in Texas. The bill that we wrote had said that, that when the prosecutor and the defense and the judge all agree that there’s been a miscarriage of justice, that the three of them can together, agree to a motion for new trial, even if it’s not timely. And we felt that that would bring back integrity, I would extend it to say that when a sentence is unjust, such as an old drug case where somebody got life in prison for, you know, less than a gram of cocaine, you know, in today’s standard, that would never happen. But back when I was a prosecutor that, that did happen. So I don’t think it’s just death cases, but I think all it could also apply to death cases where the three entities agree that it, that it that it no longer makes sense to execute this person, either because it’s out of line with what would happen today or because there’s a question of innocence, or because under today’s standards, we know that the punishment scheme today would not yield that result. It could be any number of reasons. But when everybody agrees that there’s a miscarriage of justice, to me, it seems obvious that there should be some mechanism to allow, if not actual release, in other words, not if not just we’re going to set you free, certainly that could be one thing. Or it could just be a lowering of the sentence in order to make it more in line with what would happened today. But that did not pass, and in Texas, there’s issues with that, because of the way that the Constitution is written. Some people would consider that to be only within the executive power to reduce a sentence, like your clemency, after the appeals process has ended, so it might require a constitutional amendment in Texas, which the public is, you know, probably unlikely to understand it enough to vote for it, because people would probably mistate what the bill was intended to do, or what the reform was intended to do. But I know that some states have done this to some degree. I would allow, I would change the law, not only to allow new trials when junk science was used, and that did pass in Texas, and that has led to many people getting new trials. But when when I dealt with that issue in ex parte White, in 2016, where the defendant asked my court to extend the junk science writ in 11.073 D of the Texas Code of Criminal Procedure, we wanted to, in White, he asked us to extend, it the junk science writ, to allow relief not only in the guilt stage, but also in the punishment stage when junk science had been used to lead to a death penalty. Now it makes no sense to limit junk science writs to guilt. If it’s junk science and the guilt stage of trial, it’s junk science in the punishment stage of trial. So, so carving a distinction between the two is, is silly, really, to say, well, you know, you can introduce bad arson evidence in the punishment phase, and use that ask for a death sentence and, and not allow anybody to review that in the post-conviction stage on the basis of junk science. But if that had happened in the guilt stage, we’d give you a new trial. So it just made no sense at all, but that that is the law in Texas, the Court of Criminal Appeals ruled that way and then when we’ve tried to change that at the at the legislature to extend it, the junk science route to the punishment phase by statute, the Texas Senate, shot that down. So that’s the way we are today. I also think that the execution of severely mentally ill people should be barred. Again, I think it’s silly to say that somebody was intellectually disabled, and really wasn’t able to make a good decision as to whether to commit a crime or not, well, that person is exempt — a good decision, and by that I mean, knowing decision or an intelligent decision to commit a crime or not — well, that person is exempt from the death penalty, but somebody who was severely mentally ill, and in a state of schizophrenia, or in a state of, you know, believing that the devil was talking to them, you know, just completely unaware of rational thought, that person can be executed because the law allows that. I think that’s just a ridiculous line to draw. We also, we got that bill passed in the Texas House, but when it hit the Texas Senate, that bill was killed in Texas senate by some of the leading Republican senators. The fourth change that I would think would help a lot would be to permit post-conviction challenges, asserting that the initial habeas counsel was ineffective. And that, this gets a bit technical, but to keep it short, the Anthony Graves case is where Texas held that as the law, in Graves’ case, who was sentenced to the death penalty, he had an ineffective trial attorney, ineffective appellate attorney, ineffective initial habeas attorney. When good counsel got involved, later on, they were able to show that the earlier attorneys had performed in effectively and that, that Graves was innocent, essentially. But the Court of Criminal Appeals held that it would not recognize in the subsequent habeas stage, where there was a good attorney, they would not recognize a claim of ineffective counsel at the initial habeas stage, and so consequently, the Court of Criminal Appeals affirmed Graves’ death sentence. He ended up going to the federal courts, the federal courts ended up granting him relief, and he was ultimately declared innocence, innocent, but it was not because of anything the Texas Court of Criminal Appeals did. They ended up affirming his death sentence and were they the last word he would have been executed even though he is innocent. When I was on the court, just one second, when I was on the court, we revisited that Graves decision three times: in ex parte Taylor in 2011, in John Ballentine’s case, I think in 2011 or 2012, and in Cleve Foster’s case in 2012. I dissented against that decision, and along with a couple of other judges, Judge Cheryl Johnson and Judge Tom Price, and we lost those, that, those decisions 6-3. And those three people were executed: Taylor, Ballentine, and, and Foster. So I think there’s significant problems with the justice system as it is, but the changes that we’ve tried to make have been met with obstacles by people who I think either just don’t know better, or they don’t care. 

Anne Holsinger 30:14 

Before we move on to the next topic, I just want to note for our listeners that we have a podcast from just a couple months ago with Anthony Graves. So you know, you mentioned his case, and I want to note that people want to learn more, our January 2024. podcast was an interview with Mr. Graves. During your tenure as a judge, you alluded to this, you were outspoken about issues in some capital cases, and you often wrote opinions that drew attention to flaws in the application of capital punishment. Can you talk about what you saw and why you chose to speak out about them as a judge? 

Elsa Alcala 30:47 

Yes. When I first got on the court in 2011, almost immediately as I got on the court, I had a case called [Arthur] Williams land on my desk. He was convicted of capital murder in 1982 for shooting and killing a Houston police officer by the name of Daryl Shirley. Shirley was dressed in plainclothes with I think jeans and a cowboy hat or something like that, and he was arresting people who were a parole violators and Arthur Williams was a parole violator out of Minnesota. So Shirley approached him, according to the prosecutor, Shirley showed him his badge because he was in plainclothes not in uniform, and Williams ended up shooting and killing Shirley. The issue at trial was, at guilt, was Williams’ claim that he didn’t know that Williams was a police officer and he claimed he hadn’t seen the badge. According to police, the badge had been found on the ground near Shirley’s body when they approached the scene. At the guilt stage, the lawyers heavily litigated that issue of knowledge because if, if Williams had not known that Shirley was a police officer, then that would be a murder of a single person without a special characteristic, and the most that Williams could have gotten is life in prison for a first degree murder. But with the additional element that he had shot a police officer, that additional characteristic is what changed it into a death penalty case. The jury did not believe Williams’s assertion that he didn’t know and the jury found him guilty of capital murder. At that point, defense counsel basically gave up, they did nothing. The state put on its punishment case and the defense didn’t put on any case at all. They didn’t call any witnesses. The case went through the system, it got affirmed by the Court of Criminal Appeals on direct appeal, it got affirmed in the initial habeas review. It went through the federal court system, as well. And Williams is conviction got, I’m sorry, I said that, while he did not get an initial habeas review, it was before that was required. And he went through the federal system, and it got upheld. But meanwhile, in another totally unrelated case, the U.S. Supreme Court said that defendants were entitled to have a jury instruction on mitigation, anything to show that they were not deserving of the death penalty. So the case came back to the Court of Criminal Appeals and the lawyers asked us to grant him a new trial, on the basis that they had several allegations, but the one that I focused on was the mitigation special-issue that Williams had been remorseful, he had confessed, he had made statements that he was he felt terrible after he found out it was a police officer that he had never intended to kill a police officer. And so I said that that was mitigation evidence that should have gotten a jury instruction to allow the jury to consider his feelings of remorse over having killed someone not, not knowing that the person he killed was a police officer. But my court basically was, I think it was an eight to one decision. I was alone in the in the dissent. And my court said basically, well, even if the jury had gotten that jury instruction, we don’t think that it would have ruled in favor of him on the grounds of mitigation, and therefore we affirm. Now the problem with that reasoning is that now you have totally circumvented the jury process, these appellate judges, all Republicans, all conservatives, have decided that not a single juror could reasonably ever have ruled in favor of mitigation. Because in Texas, all you need is one juror to rule that way and then the defendant gets a life sentence. So I thought that was just absurd. I thought the whole thing was absurd, that these longtime conservative Republican judges could just ignore the entire jury process and say, even if there was this mistake in the jury questionnaires, or in the jury instructions, it just didn’t matter, because we think he would have ended up on death row anyway and I felt like that was pretty nonsensical. And that’s how I started at the court, that was in 2011, like my first death penalty case and it just screamed out to me that there is a problem on this court. They are just not willing to make sure that, that people are getting a fair shake or the fair shake that they deserve. After that, there were a few cases that I’ll move on from so I can we can go back to the questioning, but I ended up dealing with the Duane Buck case. That ended up going to the US Supreme Court. My Court affirmed the Duane Buck case, even though one of the, the so called experts, psychiatric experts had said that black people are more likely to be violent and my court upheld it even though the prosecutor said, quote, the race factor, Black, increased the future dangerousness for various complicated reasons. So even though the state relied on race as a reason to say that someone was more dangerous, my court upheld that conviction over my dissent again, and the US Supreme Court ended up reversing that case, and he was sentenced to life in prison. I left out that in the Williams case, about five years later, a federal district court reviewed the case. That district court judge said many of the things that I said, then the case got reversed by the Federal District Court, the case got sent to the Harris County, newly elected district attorney, and that district attorney agreed to resentence him to life in prison. So, Williams was ultimately resentenced to life in prison. But both of these were, you know, despite the Court of Criminal Appeals, not because of the Court of Criminal Appeals. And then the last case that I dealt with quite a bit, and maybe we’ll talk about more, more later on, if we have time, is the Bobby Moore case, where I again alone dissented and I said that, that my court was resolving intellectual disability cases incorrectly. When that went up to the US Supreme Court, the US Supreme Court agreed with my point of view, they reversed the Court of Criminal Appeals of Texas, the case went back down to the Court of Criminal Appeals while I was on it, even though the US Supreme Court had told them you are doing this wrong and strongly implied, if not out and out said, that Moore, this is Bobby Moore, that Moore was intellectually disabled, my court again affirmed his death sentence. Then it went back up to the US Supreme Court in 2019 and finally, the US Supreme Court said, ‘No, we really mean it. He is intellectually disabled and you all are incorrectly applying the standard for determining intellectual disability.’ And I think since then, something like 11 people I think, have been taken off of death row now that the Court of Criminal Appeals has been forced to change its intellectual disability standard. So those were three of the primary cases that that influenced my thinking about the death penalty. 

Anne Holsinger 40:06 

To return to an earlier part of your career during your time as a Harris County prosecutor, you sought the death penalty in a few cases. Could you explain how that experience later influenced your perspective as a judge? 

Elsa Alcala 40:20 

I was a prosecutor from 1989 to 1998. I was the first year prosecutor in three death penalty trials. Two of them were sent to death row and one, the jury hung in the punishment stage of trial and that defendant got life in prison. The way it influenced me, I think, was just to normalize the death penalty. Back in Harris County at that time under the elected District Attorney, Johnny Holmes, he was one of the leading district attorneys in the country, in terms of seeking the death penalty, and I was trained under him and I worked in that environment. So when I became a judge, I continued to believe in the death penalty, I continued to think that we had to have it for the worst of the worst offenders. I believed that prosecutors were making the correct decisions. I became a prosecutor before we started using DNA regularly in the courts. When we first, when DNA first came out in the early 1990s, back when even OJ Simpson was tried in the 1990s, most, most of us, including me, believed that the jury wouldn’t understand DNA, the jury wouldn’t be willing to use it to, to convict people. And we just were unsure about it and I think you you see that in that OJ Simpson trial, you see that being played out. But as we started using DNA, we started realizing that the things that we thought were rock solid pieces of evidence turned out not to be so. We thought eye witnesses were the gold standard. If we had an eyewitness, we were so happy. And then it turns out that eyewitnesses often get it wrong, particularly when it’s somebody of a different race. We thought confessions were the gold standard. If we had a confession, we thought, you know, who, who would confess if they weren’t really guilty? And then come to find out with DNA evidence that lots of people confess, who are innocent for lots of different reasons, one of which is just the pressure of the situation. And then you hear a lot of them say, well, I was innocent. I figured even if I said it was I was guilty, there was no evidence against me and they’d figure that out. But come to find out prosecutors didn’t figure it out. Prosecutors thought, well, we have confession and so that’s all that we need and jurors also were of that mindset, well, you know, who would confess if they, if they didn’t do it? I wouldn’t have confessed. So we saw pieces of evidence being undermined that we had before thought were solid pieces of evidence. And so I think that caused some of the mindset to change. But, but coming back to your answer, I was trained at a time when we thought the police weren’t mostly infallible, prosecutors were mostly infallible, and that the death penalty was the best solution. Now, mind you, it was also at a time when defense lawyers didn’t do a whole lot in defense. It was before the U.S. Supreme Court had said that a defense that in death penalty trials, we need to have mitigation jury instructions to give jurors a safety bow well, that that didn’t exist back then. That was before the US Supreme Court disallowed the execution of intellectually disabled people. So there’s been an evolution in how death penalty cases are being litigated and with that evolution, we are now seeing that much of our thinking back in the 1990s was incorrect. And I think that is what is causing a lot of people like me to reassess our views about capital punishment. 

Anne Holsinger 44:52 

Earlier you offered some thoughts on judicial reforms. Are there any changes that you think should be made to the way that prosecutors handle capital cases in Texas? 

Elsa Alcala 45:03 

I think that prosecutors who have units devoted to innocence and are trying to find wrongful convictions that the integrity conviction units, I think those are very important, as long as the those units are given free reign to reexamine, not to uphold the conviction, but actually to find the truth of the situation. I think those units are very important. I think that prosecutors, again, with that mindset, should much more willingly agree to factual reviews than to try to rely on procedure to avoid factual reviews. Like I said, in this [Swearingen] case, for the longest time, the prosecutor opposed DNA testing, claiming that he should have done that before. Well, that’s ridiculous, the prosecutor should have said, we are here to make sure that we know the truth. And so prosecutors in my mind should never oppose DNA testing in any case, where, where there were there were that evidence is available to be tested, that testing should be done and prosecutors should never oppose it. I think in other situations, we see prosecutors who tried the case cling to their belief that they got it right because of course, admitting that they got it wrong is a difficult thing. And so prosecutors, you know, 20 years later will, will cling to their original belief, not because there isn’t an abundance of evidence out there to show that the person may be wrongly convicted or it was wrongly handled, maybe through no fault of the prosecutor at all, but the prosecutor’s unwilling to admit that they had any role in a wrongful conviction. So I think cases like that should be reassigned to somebody else. And right now, my mind is drawing a blank about the Bastrop person on death row, but I think that may be a problem in that case where that prosecutor was the one who sent him to death row many years ago and she is now still arguing against his claims of innocence, even though there’s just a ton of evidence there, that he at a minimum might be innocent, you know, do I know for a fact that he is innocent? In my mind? No. But do I think that there’s enough evidence there to warrant a retrial? I think at this point, given everything I’ve seen, there there is. And so I think that’s the problem is, when you have the same prosecutors that are still handling the case, they often are unwilling to admit to themselves that they had a role in a wrongful conviction. So I think the election of, of new DAs can actually be a very positive thing, because with the election of new DAs, there’s new people brought in, who can maybe have a fresh perspective on, on some of these older cases that really do need to be reviewed. 

Anne Holsinger 48:34 

Is there anything else that you’d like to share with our listeners? 

Elsa Alcala 48:38 

A lot of the problem is legislative, at the federal level and at the state level. We have too many laws that prohibit review of cases under the theory that you should have one bite at the apple that you know, you have your one full and fair trial, one full and fair appeal or habeas review, and that that should be the end of it. What I know for sure is that that’s not working. And it’s not working because of the issue of ineffective counsel at the trial level at the appellate level and at and at the initial habeas level, and that by the time you have these law schools or civil law firms or maybe it’s just the progress of science, you know, that the development of DNA could be less sinister than ineffective assistance of counsel. It could just be the development of new science, but you have things, life goes on and things, things, new evidence is discovered, but the problem is that in the state and federal system, we pretend as if things stand still after some litigation has ended. And that’s just not realistic, I think we need to be much more permissive in allowing reviews of cases based on justice and take out the focus on procedure because I think this focus on procedure is, is leading to too many erroneous outcomes. I think the other things that I saw while I was on the court, I saw and I know that there’s statistics that bear it out, but that there were just too many, poor black and brown people wrongly convicted, and wrongly on death row. In my mind, you know, you’re just not going to see a wealthy white, Anglo person on death row. It just doesn’t happen, because that person is able to hire, you know, maybe it has happened in the history of time, but it didn’t happen when I was at the court. What you see is those people get the better attorneys and they get the better review of their cases, and they either win at trial, or they win on appeal. It’s the poor or indigent black or brown people who often ended up on death row who had, I believe, valid claims of either innocence, or that they should, or the sentencing, that the sentence was flawed. I also want to add that money has a terrible influence in death penalty litigation. For people who are, who have fiscal concerns about our society, it makes no sense to spend millions upon millions to execute one person. It doesn’t help society at all. It doesn’t make us any safer when that person could be in prison for life, and some people say, well, they could go to we don’t want them in general population. Well, they have reviews of general population, and if somebody truly is a danger in general population, then they go into administrative segregation, they get placed in solitary confinement and taken away from general population. So that idea that we need death row in order to keep people from general population is really a falsehood, but that’s one of the newer things that prosecutors are saying today. And then the only other thing I can add is that, I think it was my last year that I was on the Court of Criminal Appeals, I revisited death row. I had gone to death row as a prosecutor in the 1990s back before, they were in solitary confinement. Back in the 1990s in Texas, they were not in general population, but they had their own row where they shared cells and interacted with each other. But then that changed, and they, and now they’re in Livingston, Texas. And each person on death row is in solitary confinement. And I went into one of those cells when I was there and all I left was thinking that, you know, the, the dogs at the pound, had it better than the people on death row. The dogs at the pound, could actually see the other dogs and the people and that sort of thing. On death row, it’s concrete walls all the way up and down, even the door is concrete, there’s just a little sliver where you can put the tray in for food. There’s one window that you can’t really see out of if you’re just standing in the cell, you have to according to what I was told, you have to get on top of the bunk and then you can kind of see out of this little sliver of a window at the very, very top. So the most it serves really is to just tell you if it’s day or night, or if it’s you know, sunny or raining or that kind of thing, but you’re not going to see anything looking out of that window and you’re not going to see any people. And then some people say well, they get an hour of recreation, but I saw that recreation cell, and it’s not anything I would say is much, basically they’re alone in that little room and the only difference is that that room has bars that I guess you can see out of into the hallway. But, but it’s not like you get to interact with another person or play game with another person, the way that they communicate with each other I think is by speaking loudly. And they can hear each other across the walls, but they don’t like see each other or, or interact even at the recreation area. The whole thing just seem, seems to me to be just a senseless way of, of handling this whole issue. There’s a better way is simply to not have the death penalty like so many of these states, I think the vast majority of states in the US don’t use the death penalty, even if it’s still on the books, they don’t use it. Even in Texas, there are very few new death sentences coming out of Texas. The problem in Texas is that you have right now almost 200 people still on death row for crimes that in my opinion, wouldn’t have landed them there under today’s standards, that the state wouldn’t be seeking the death penalty on them today. But yet it is it is seeking to execute them for, for crimes that today would land them on death row. So the whole thing to me is just nonsensical and that’s how I firmly ended up in this camp of opposing the death penalty. 

Anne Holsinger 56:37 

Thank you so much, Judge Alcala. 

Elsa Alcala 56:39 

Thank you Anne, I really appreciate you having me. I also wanted to extend my appreciation to Robin Maher, the Executive Director of the Death Penalty Information Center. 

Anne Holsinger 56:50 

Well, thank you so much for joining us today. If our listeners would like to learn more about the death penalty, they can visit the DPIC website at deathpenaltyinfo.org. And to make sure you never miss an episode of our podcast, you can subscribe to Discussions with DPIC on your podcast app of choice.