TEXAS DEATH PENALTY

This does seem odd. On one hand, a judge agrees to delay an execution, which was challenged based on a lack of DNA testing. But then the same judge sets a new execution date. The real issue is that a clerk made an error in doing the paperwork. This is the nature of the frustrating appeals process in Texas. Small errors in a game of chess matter. Signs of evidence and major doubts to really get consideration.

For Immediate Release
February 17, 2009
Contact: Rob Owen, University of Texas, 512-232-9391, rowen@law.utexas.edu

STATEMENT OF THE LEGAL DEFENSE TEAM FOR HANK SKINNER REGARDING RE-SCHEDULING OF MR. SKINNER'S EXECUTION

"Today, February 17, we received notice for the first time that the judge of the convicting court yesterday withdrew Mr. Skinner's previously scheduled February 24 execution date, apparently upholding our challenge to the previously issued warrant of execution as void under Texas law.

We are dismayed that the court chose, in the same order, to re-schedule Mr. Skinner's execution for March 24. This unseemly haste to execute Mr. Skinner ignores the growing public concern and outcry over the unanswered questions about Mr. Skinner's guilt. Now, more than ever, DNA testing is necessary to resolve those doubts.

Setting a March 24 execution date also means that Mr. Skinner's pending lawsuit against the Gray County District Attorney in the United States Supreme Court, seeking the much-needed DNA testing, must now be resolved under needless and entirely artificial time pressures. Given that the District Attorney stands to benefit directly from that undue haste, it is especially disappointing that the court chose to press forward with Mr. Skinner's execution on March 24.

In addition, there is a very serious legal question whether the trial court even has the authority to set an execution date for someone, like Mr. Skinner, whose post-conviction challenges to his conviction and death sentence have never been heard by the Texas courts.

We remain committed to obtaining the DNA testing our client says will prove his innocence, and will take every available legal step to that end."

I just received this from the Texas Coalition to Abolish the Death Penalty:

TCADP Calls for "Statewide Day of Action" on Anniversary of Willingham Execution

State poised to carry out execution in another case with lingering questions

(Austin, Texas) - Today, February 17, 2010, marks the sixth anniversary of the execution of Cameron Todd Willingham in 2004. Despite ongoing doubts about the forensic evidence used to obtain Willingham's conviction, the State of Texas is poised to carry out another execution in a case for which many unresolved questions remain.

On February 24th, Henry "Hank" Skinner may be put to death, even though key pieces of DNA evidence that were collected from the crime scene in 1993 have never been tested. In fact, the State of Texas has refused to conduct testing of this evidence for the past 10 years. Hank Skinner has vigorously protested his innocence since the time of his arrest for the murders of Twila Busby and her two adult sons.

The Texas Coalition to Abolish the Death Penalty (TCADP), a statewide grassroots membership organization based in Austin, has designated February 17 a "Statewide Day of Action." It has called on its thousands of members and supporters to contact their elected officials to express concerns about the cases of Cameron Todd Willingham and Hank Skinner. In particular, TCADP has urged supporters to contact Governor Rick Perry to request clemency for Skinner so that critical DNA testing can be conducted.

In the Willingham case, serious questions remain as to the circumstances of the fire that led to the deaths of his three young daughters in 1991. Nine fire experts - including one hired by the Texas Forensic Science Commission - have examined the case since the time of conviction and determined that the evidence did not support the finding of arson. An investigation last year by journalist David Grann debunked all the evidence used to convict Willingham, and an inquiry by the Texas Forensic Science Commission is still pending.

"The State of Texas cannot afford to create another Cameron Todd Willingham," said Kristin Houlé, TCADP Executive Director. "We urge the Governor not to turn a blind eye once again as he did on this day in 2004 when he ignored possibly exculpatory evidence in Willingham's case. He still has the opportunity to do the right thing in Skinner's case and prevent the execution of a possibly innocent man."
Since 1973, 139 people in 26 states - including 11 in Texas -- have been released from death row due to evidence of their wrongful conviction. DNA evidence played a substantial role in 17 of these cases.
For additional background on the Skinner case, visit the Medill Innocence Project: http://www.medillinnocenceproject.org/skinner. For more information on the TCADP Statewide Day of Action, go to http://tcadp.org/index.php?page=statewide-day-of-action.

In Virginia, a state that, like Texas, is known for its use of the death penalty, legislators recently rejected several efforts to expand capital punishment. The only measure to survive was one that would allow the death penalty in cases where an auxiliary police officer is killed on duty.

But what caught my eye in this Associated Press story was a comment by the state's former executioner, Jerry Givens of Henrico, who presided over 62 executions and now opposes the ultimate sanction.

"The people that recommend executions, that pass these bills, they don't have to do these things," Givens said of legislators. "The executioners and the people that participate in these things, they have to suffer through this stuff."

The Louisiana prison system has taken a novel approach to death row litigation. Officials have sued all 84 inmates to prevent them from challenging the state's lethal injection procedure. According to Solitary Watch the litigation is a countersuit, filed in response to an earlier lawsuit claiming that Louisiana's lethal injection procedure is in violation of state law.

The Solitary Watch story says, Nick Trenticosta, director of the non-profit Center for Equal Justice in New Orleans, knows of no similar instance in which a state sued all of its death row inmates. "I've been hanging around death penalty cases for 25 years," Trenticosta said. "And I have never seen anything like this."

A spokesman for the Texas Department of Criminal Justice said he knows of no such plan in Texas.

Somehow, Debra Medina, the toxic GOP candidate for governor, used her empathy for 9/11 truthers to explain why she thinks there should be a moratorium on executions in Texas.

The twisted logic here is hard to follow, but when you realize what she is saying, it's far more damaging to the cause of a moratorium than it is helpful.

Essentially, she is saying that she believes there are some credible doubts at the government's ability to tell the truth . You know, sometimes government prosecutors get it wrong on issues of justice, hence the need for a moratorium on executions. And sometimes, White House officials who are cozy with Israel and energy companies conspire to blow up the World Trade Center. Um, no ...

Not the same thing.

Not even close.

If the difference is not clear, let me explain: One is based in reality. The other is based in deranged fiction.

Please, if you want to see a moratorium on executions so that the state can scrutinize its process and reconsider whether is should have an irreversible punishment in an inherently flawed system, then please, please ... just stop talking.

When I first realized that the Democratic debate was addressing death penalty issues, I got excited. Perhaps this is the place where an honest debate and discussion about flaws in the system will finally take place at the governor-level.

Nope. Farouk Shami of Houston blew that prospect out of the water with the bizarre allegation that "lots" of innocent people have been put to death in Texas in the past few years.

Credibility is vital to those who, like Shami, seek a moratorium (or more) on the death penalty in Texas. When people are sloppy with the facts, it does no one any good. Case in point: Todd Willingham. Those howling that he is innocent are marginalized. But those who stick to what we know -- that the evidence used to convict him was tainted by junk science and poor assumptions made by debunked "experts" -- keep the issue on track. The issue isn't guilt or innocence. The issue is a broken system and politicians who refuse to admit the flaws exist.

Of course, it's easy to shut out evidence when people say things, like Shami did, that are so obviously unsupported.

The Republicans don't talk much about Perry's intervention in the Willingham case or other death row issues. Will the Dems?

Join us for a live chat during the Democratic Gubernatorial Debate. Bookmark this post or visit The Dallas Morning News Opinion Blog tonight at 7 p.m.

Texas is always at the top of the list in terms of executions, but with the election of a pro-death penalty governor, Virginia may be making a surge. That's what the Virginian-Pilot reports.

Specifically, Virginia has passed a bill creating a law of parties, allowing for the death penalty for accomplices. That's the wrong direction, and it gives cover to Texas law-makers who defend our practice of executing accomplices if the triggerman talks first. Essentially, under our system, if a triggerman breaks the case with a confession in a plea deal, the accomplice can be the one who faces death. It can also mean that an accomplice tried first can get death when another jury finds that the triggerman didn't even commit a crime worthy of death. I've written about a simple fix for that problem.

But even simple, common-sense reforms are harder when other states seem to be holding your backward policies up as a model ...

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So what is the punishment for a public servant who fails to do her job properly? One Republican judge who once served on the Court of Criminal Appeals says it is the public humiliation Sharon Keller "surely" endured following her mistakes in the handling of a late death penalty appeal soon after the Supreme Court decided to look into the issue of lethal injection.

That's right. If the media is mean to you, then you have served your time. Don Hill's lawyers may want to get their appeal moved to this San Antonio courtroom. Hill was dragged through the mud by the mean old media when he was accused of stealing. In fact, this mean old newspaper even cited his indictment in not endorsing him for mayor. How humiliating. To think that Hill might be punished further for that ...

Today a reader who sends so many missives at us that I can't keep up accused us of ignoring the media part of the judge's report on Keller in our editorial on the subject. But here's the thing. The judge must be talking about other media because we never got information directly from the Texas Defender Serrvice. In fact, I called them and they would not return calls. We got most of our information from one of Sharon Keller's peers on the court itself.

So for a fellow Republican judge -- someone who is proud to have been the first REpublican to serve on the court Keller now leads -- to accuse the media of being spoon-fed information is without merit. He has no evidence for such an assumption. He also assumes Keller has been humiliated. What proof does he have of that?

Criminal defense attorney David Dow is receiving good reviews for his new book, The Autobiography of an Execution. But his work as litigation director of the Texas Defender Service, on behalf of death row inmate Michael Richard, was harshly criticized in the recent findings of fact inquiry into the conduct of Judge Sharon Keller.

"...the majority of the problems involving the Richard execution were the responsibility of the TDS," Judge David Berchelmann wrote. He specifically faulted the Defender Service, which claimed to have computer problems on the day of the execution, for not having a lawyer call the court clerk instead of a paralegal, and for not calling individual judges after Keller closed the office. He also said Dow had "embellished" the account of the computer problems and created a media uproar that subjected Keller to public humiliation.

In response, Dow says "There were things that if we could do the whole thing over again, we would have done differently, but I'm not sure that any of the things that we would have done differently are the things that he talked about."

For instance, Dow disagrees with the notion that a lawyer instead of a paralegal might have gotten a different response from the clerk, calling that an "insulting suggestion." He also doesn't endorse the idea of calling other judges after being told no, saying he could be accused of "forum shopping." And he denies embellishing any account of what happened that day to spark a media uproar.

"That's just false," he says, adding that, "Our involvement in this from the inception has been only because the state commission has asked us to participate. We have not been involved in initiating any complaints against Judge Keller...It's not at all a personal vendetta."

I've never met David Dow, a University of Houston law professor who serves as litigation director for the Texas Defender Service. But I've known him as a voice on the phone for more than a decade, listening to him talk passionately about the death penalty in Texas.
In February everyone will have a chance to know him through his intensely personal memoir, The Autobiography of an Execution.

Dow has written books about capital punishment before but his previous efforts were clinical. The Autobiography of an Execution, published by Twelve Books to be in bookstores next month, is startlingly revealing, offering insight how the legal system works, and into the personal toll it takes to represent the worst of the worst.

For instance, Dow writes about missing Halloween with his young son one year because an execution was delayed. How do you tell your son he missed going to the haunted house in his Thomas the Tank costume because you were trying to stop a lethal injection?

He writes about the fact that people assume he likes his clients, when the truth is sometimes he can't stand them. He tells how when he leaves the prison he "can hardly wait to get in the shower and wash the death and deprivation off of me." He launders his clothes separately to keep his professional and personal life separate.

The book is written in an odd stream of consciousness narrative that works. "I understand death penalty supporters," he writes. "I used to be one. I can relate to the retributive impulse. I know people I want to kill. I've tried hard to save all my clients, but some executions don't make me cry...I have friends who quit doing this work because they couldn't keep the images from burrowing deep down into their consciousness and stealing all their joy."

Perhaps the greatest surprise is Dow's deft touch with words, a touch rarely found in legal briefs. Here's his description of a mentally ill inmate snacking during visiting hours with his parents. "He was making sandwiches by layering a tortilla chip, a piece of chocolate bar, a Funion, another piece of chocolate, and another Dorito. Then he'd pop the whole thing into his mouth. His head would rotate like a figure eight while he chewed."
As Dow left, he encountered the inmate's father. "He took a hold of my upper arm. I could smell peanut butter and jelly on his breath. He said, We are not planning to watch it. We'll be at the prison, but we want to wait outside in the camper. Do you think that's all right?" Dow advised him not to watch.

Whether you oppose or support the death penalty, Autobiography of an Execution is a compelling read. I look forward to its counterpart by a prosecutor.

Death penalty supporters have a strong new advocate in Dr. William Petit, the Conencticut doctor whose wife and two daughters were killed by intruders two years ago. The case is particularly grisly: his wife was raped and strangled; his 11-year-old daughter was molested then tied to her bed; and his 17-year -old daughter was also tied to the bed. Both girls died when the house was set on fire. Petit was clubbed and bound, but managed to escape.

"My family got the death penalty," Petit told Connecticut legislators considering repealing capital punishment last spring. "And you want to give murderers life. That is not justice." Legislators repealed the death penalty but the governor vetoed it. Now the first of two suspects, both career criminals, goes on trial this week. Both men sought a plea bargain to life, but prosecutors refused. The trial is expected to take months. Read the New York Times account here.

According to the Death Penalty Information Center, Connecticut has only executed one person since capital punishment was re-instated in 1976. Ten people are currently on death row there.

I admit to focusing more on the practical and obvious news events around me, so it's no wonder I missed this development last year. The American Law Institute essentially backed off suport of the death penalty. It's not opposed, mind you, but it has removed the death penalty from its Model Code.

If you're like me, your first question is, "Huh?" Well, this is a major legal work that forms the intellectual basis for the teaching and understanding of law in the United States. The work to include the death penalty in the Model Code in 1962 served as the underpinnings for the reinstatement of the death penalty in 1976. Essentially, the best legal minds in our nation got together and said, this is how the death penalty can be carried out fairly.

Well, now the best legal minds in the country say, essentially, there is no fair system of capital punishment. Read it here. It's parsed in legal language, and maybe I'm guilty of oversimplifying, but this is a major development in the legal world.

Capital Punishment Web

Ohio law professor Doug Berman notes yesterday was a significant day for the death penalty and no one in the media took note. So I'll rectify that by pointing out what he brought to our attention: Three different states carried out executions Thursday, including Texas which put cop-killer Kenneth Mosley to death.

"I think yesterday had to at least tie a modern executions record," Berman wrote. "I also doubt there will be any days in the near future with four (or even three) executions, so January 7, 2010, likely can be remembers as a special day in the history of the US death penalty."

He's probably right as far as modern executions, but according to the TDCJ website, Texas executed five people in one day in 1924.. I don't know if that was unusual at the time or not.

Today's news that Rick Perry has a green light to pardon Tim Cole was greeted by the governer with nothing short of eagerness:

Perry said the opinion "finally gives his family the opportunity to officially clear his name.
"I hope the Board of Pardons and Paroles will act swiftly in sending a recommendation to my desk so that justice can finally be served," the governor said.

The debate over whether or not use of the death penalty deters other murderers continues with dueling studies by two Texas universities. In November three criminology professors from the University of Texas at Dallas published a study stating the ultimate punishment has no deterrent effect. Now researchers at Sam Houston State University and Duke say their study shows evidence exists of modest reductions in murders after an execution.

Undoubtedly the source material, approach and analysis of each study differ but the differing conclusions should spark more discussion--probably without changing many minds..

The good news about historically low murder statistics in Dallas (and all over, really) will prompt some folks to think that means our busy death chamber in Hunstville should get some share of the credit.

Not so, say scientists who study this sort of thing. But before I get into that, just think about what it might mean if the death penalty did deter some murders. In Dallas, that would be especially alarming, given what we know about the death penalty. We know that if your victim is white, you are far more likely to face execution than if your victim is black. But in Dallas, by far, most victims of murder are black (47 percent). So if we actually believe that the death penalty is what is keeping people from killing white people (the victims whose deaths are most commonly avenged by executions) then shame on us. How dare we provide that level of protection only for one race.

Fortunately, there's no science to back up the notion that executions deter any violence among any race. Despite a rash of studies alleging that the death penalty saves anywhere from 6 to 18 lives for every execution earlier this decade -- studies that resulted in splashy play on the front pages of major newspapers -- scientists have been busy debunking those studies ever since. In fact, the latest statistical analysis comes from researchers right here in Dallas at UTD. They say there is absolutely no empirical evidence to support the claim that the death penalty deters violent crime.

I look forward to reading their whole study (which is not available online or in my Nexis datatbase yet), but in the meantime, I went to the journal that published it to see what else has been said on the subject. In the summer, Journal of Criminal Law & Criminology included another article debunking this myth. I've included some excerpts below.

Death sentences have been dropping in Texas for a couple of years now, ever since life without parole became an option and Harris County slowed their march to the death chamber. Texas sentenced only nine people to death this year, according to the Death Penalty  Information Center, the same number as 2008, but significantly below the 48 sentenced ten years ago.
But what's up in California? California sentenced more people to death this year: 29 compared to 20 in 2008. And 20 was twice the number sentenced in 2007. California also has life without parole. The Los Angeles Times offers a couple of possible reasons: "There is less tolerance, less understanding from more and more jurors," said Robert Schwartz, a veteran defense lawyer, while an assistant district attorney suggests the rise could be a fluke of courtroom scheduling.

Ironically, legal challenges have halted executions in California, which were never frequent anyway, so the death row there is twice the size of death row in Texas.

The recent news of a lawyer who may have tricked an exonerated man into signing away a good chunk of his compensation is making some people question the motives behind attorneys who work to exonerate people. Please understand, this civil lawyer was not part of the famed Innocence Project or Texas Defender Service, both of which often pursue cases of wrongful conviction in an admirable fashion.

But when the Legislature did the right thing and approved greater compensation for exonerated inmates, it may well have increased or created a profit motive for lawyers. Here's my question: Is that such a bad thing?

Clearly, there should be limits on how much a lawyer can take from an award. They should not be allowed to prey on the desperate. But something else may happen here. Lawyers who see cracks in the system of justice of Texas might be more willing to take on cases of actual innocence. Sure, money may help motivate them, but let's not be naive here. Money motivates lawyers to take good cases all the time. If lawyers can't make money on a case, they often pass. Not always. But often. That's the way the world works.

And besides, even those who pursue these cases for nonprofits are accused of having an anti-death penalty agenda. So you can't win the motive guessing game anyway.

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