State-court factfind­ing by judges in Harris County, Texas death-penal­ty cas­es is ​“a sham” that ​“rub­ber­stamps” the views of coun­ty pros­e­cu­tors, accord­ing to a study of the coun­ty’s cap­i­tal post-con­vic­tion pro­ceed­ings pub­lished in the May 2018 issue of the Houston Law Review. In The Problem of Rubber Stamping in State Capital Habeas Proceedings: A Harris County Case Study, researchers from the University of Texas School of Law Capital Punishment Center exam­ined factfind­ing orders in 191 Harris County cap­i­tal post-con­vic­tion pro­ceed­ings in which fac­tu­al issues were con­test­ed, and found that in 96% of the cas­es, Harris County judges adopt­ed the coun­ty pros­e­cu­tors’ pro­posed find­ings of fact ver­ba­tim. In the vast major­i­ty of cas­es, judges signed the state’s pro­posed doc­u­ment with­out even chang­ing the head­ing. Looking at the 21,275 indi­vid­ual fac­tu­al find­ings that coun­ty pros­e­cu­tors had pro­posed, the researchers dis­cov­ered that 96% of the judi­cial find­ings were word-for-word what pros­e­cu­tors had written. 

The study’s authors — Capital Punishment Center Director and Judge Robert M. Parker Chair in Law Jordan M. Steiker, Center Co-Director and Clinical Professor James W. Marcus, and Clinical Fellow Thea J. Posel—iden­ti­fied two relat­ed state post-con­vic­tion prac­tices that they say ​“under­mine the accu­ra­cy and fair­ness of the death penal­ty” in the nation’s most pro­lif­ic coun­ty for exe­cu­tions: ​“the reluc­tance of state tri­al courts to con­duct evi­den­tiary hear­ings to resolve con­test­ed fac­tu­al issues, and the whole­sale adop­tion of pro­posed state fact-find­ing instead of inde­pen­dent state court deci­sion-mak­ing.” State post-con­vic­tion appli­ca­tions typ­i­cal­ly present affi­davits from wit­ness­es and experts con­tain­ing evi­dence that could have been, but was not, pre­sent­ed at tri­al. This evi­dence may ​“relate[ ] to the accu­ra­cy of the con­vic­tion, includ­ing foren­sic, ali­bi, or eye­wit­ness tes­ti­mo­ny; or the affi­davits might high­light impor­tant [penal­ty-phase] mit­i­gat­ing evi­dence regard­ing the inmate’s psy­chi­atric or psy­cho­log­i­cal impair­ments, abused back­ground, or redeem­ing qual­i­ties.” The sys­temic rub­ber­stamp­ing rejects this evi­dence, often with­out any evi­den­tiary hear­ing into con­test­ed factual issues. 

The ​“inad­e­quate devel­op­ment of facts” caused by this ​“one-sided con­sid­er­a­tion of con­test­ed fac­tu­al issues,” the researchers say, ​“pre­vents Harris County post-con­vic­tion courts from enforc­ing fed­er­al con­sti­tu­tion­al norms.” The sham state-court pro­ceed­ings also lead to unre­li­able fed­er­al habeas cor­pus review of Harris County death sen­tences, the researchers said, “[b]ecause even rub­ber­stamped find­ings receive def­er­ence in fed­er­al court.” When fed­er­al habeas relief is denied and an exe­cu­tion occurs, ​“pros­e­cu­tors and news­pa­pers recount the many lay­ers of review under­tak­en” in the case, notwith­stand­ing the under­ly­ing real­i­ty that ​“those lay­ers of review afford­ed no mean­ing­ful con­sid­er­a­tion of the inmate’s con­sti­tu­tion­al claims.” The real­i­ty of rub­ber­stamped state-court factfind­ing and illu­so­ry fed­er­al appel­late review, they say, ​“under­mines the legit­i­ma­cy of Harris County executions.”

The issue of rub­ber­stamp­ing is not lim­it­ed to Harris County. On May 16, Texas exe­cut­ed Juan Castillo after a Bexar County judge denied him an evi­den­tiary hear­ing on his claim that pros­e­cu­tors had pre­sent­ed false tes­ti­mo­ny to secure his con­vic­tion. The judge 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. Alabama attempt­ed to exe­cute Doyle Hamm in February 2018 after state courts had adopt­ed word-for-word an 89-page order writ­ten by the state attor­ney gen­er­al’s office one busi­ness day after receiv­ing the pros­e­cu­tion’s pro­posed order, with­out remov­ing the word ​“pro­posed” from the title of the order.

(Jordan M. Steiker, James W. Marcus, and Thea J. Posel, ​“The Problem of Rubber Stamping in State Capital Habeas Proceedings: A Harris County Case Study,” Houston Law Review, Volume 55, Number 4: Frankel Lecture 2018.) See Arbitrariness and Studies.

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