Supreme Court Denies Review in Death-Penalty Case Where Texas Judge Rubberstamped Prosecution’s Findings

The U.S. Supreme Court has declined to review a case in which the Texas courts decid­ed a death-row prisoner’s appeal by adopt­ing the prosecution’s fact find­ings and legal argu­ments word-for-word with­out pro­vid­ing the defendant’s lawyer any oppor­tu­ni­ty to respond. In a May 20, 2019 rul­ing, the Court with­out com­ment denied the peti­tion for writ of cer­tio­rari filed by Ray Freeney (pic­tured), there­by per­mit­ting the Harris County prisoner’s con­vic­tion and death sen­tence to stand. The deci­sion was the lat­est in a series of cas­es in which the Court has refused to take up the issue of state-court rul­ings that are ver­ba­tim copies of pro­posed orders writ­ten entire­ly by the pros­e­cu­tion. In June 2018, researchers at the University of Texas School of Law Capital Punishment Center exposed the sys­temic rub­ber­stamp­ing of pros­e­cu­tors’ plead­ings in Harris County cap­i­tal cas­es. The researchers found that coun­ty judges had adopt­ed pros­e­cu­tors’ pro­posed find­ings of fact ver­ba­tim in 96% of 191 cap­i­tal cas­es in which fac­tu­al issues had been con­test­ed. Harris County has exe­cut­ed 129 men and women, more than dou­ble the num­ber exe­cut­ed in any oth­er coun­ty in the United States and more than have been exe­cut­ed in any state in the coun­try oth­er than Texas.

In a Washington Post op-ed, colum­nist Radley Balko said Freeney’s case not only rais­es ques­tions about the prac­tice of judges rub­ber­stamp­ing pros­e­cu­to­r­i­al find­ings, but also ​“test[s] the absurd, out­er lim­its of AEDPA’s def­er­ence to state courts.” AEDPA is the Anti-Terrorism and Effective Death Penalty Act, the habeas cor­pus amend­ments passed by Congress in 1996. Those amend­ments have sig­nif­i­cant­ly reduced fed­er­al courts’ abil­i­ty to review and redress vio­la­tions of a state defendant’s right to a fair tri­al and sen­tenc­ing by requir­ing fed­er­al judges to give a high lev­el of def­er­ence to state court find­ings. Balko explains, ​“to get a fed­er­al court to review a state court’s rul­ing, a defen­dant must show not only that the state court (and the state courts that upheld the rul­ing) were wrong, but that the pre­vail­ing rul­ing was either ​‘con­trary to, or involved an unrea­son­able appli­ca­tion of, clear­ly estab­lished Federal law,’ or an ​‘unrea­son­able deter­mi­na­tion of the facts in light of the evi­dence pre­sent­ed.’ Put plain­ly, you must con­vince the fed­er­al courts not only that the state courts were wrong, but also that they were unreasonably wrong.”

When Ray Freeney’s 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. Freeney’s defense attor­neys were nev­er giv­en an oppor­tu­ni­ty to respond, or to sub­mit their own brief con­tain­ing new evi­dence to sup­port their claim that his tri­al attor­neys had pro­vid­ed inad­e­quate coun­sel. The University of Texas study has demon­strat­ed that ​“rub­ber­stamp­ing” of pros­e­cu­tors’ pro­posed orders is com­mon in Harris County, par­tic­u­lar­ly in cas­es in which the judge was a for­mer coun­ty pros­e­cu­tor. But Feeney’s case stood out even more in that Judge Magee pro­vid­ed his lawyers no oppor­tu­ni­ty to respond to the prosecution’s pro­posed dis­po­si­tion of the case. ​“When you have such egre­gious inat­ten­tion to facts and lack of stew­ard­ship of con­sti­tu­tion­al rights as we’ve seen in Harris County,” Balko said, ​“the entire sys­tem begins to look like a farce.”

Under AEDPA, rub­ber­stamped find­ings are rou­tine­ly treat­ed with the same lev­el of def­er­ence as find­ings that judges wrote them­selves. Balko explains that, ​“under the con­trol­ling case law for the [Texas fed­er­al courts], ​‘a full and fair hear­ing is not a pre­con­di­tion to pre­sump­tion of cor­rect­ness to state habeas court find­ings of fact.’” ​“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.” 

Rubberstamping ​“isn’t even all that uncom­mon. In some parts of the coun­try, it’s rou­tine,” Balko said. In sev­er­al 2016 arti­cles for The Marshall Project, Andrew Cohen not­ed court deci­sions ​“ghost­writ­ten” by pros­e­cu­tors in Alabama, Georgia, Kentucky, Louisiana, Ohio, Pennsylvania, South Carolina, and Texas. On May 16, 2018, 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.

(Radley Balko, A death penal­ty case shows the absur­di­ty of the worst crime bill from the ​’90s, The Washington Post, May 20, 2019; Radley Balko, In America’s lead­ing death-penal­ty coun­ty, judges rou­tine­ly out­source their writ­ten opin­ions to pros­e­cu­tors, The Washington Post, June 26, 2018; 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 U.S. Supreme Court and Arbitrariness.