2011 So Far: Life and Life and Life While Dead and Death and Death and Who Knows

The new year is just 12 days old, but if you've been trying to keep up with the death penalty news, good luck.  It's come fast and furious.  A few highlights, in no particular order, some of which I'll probably write more about in the days to come.

• Missouri Governor Jay Nixon grants clemency to Richard Clay, commuting his sentence from murder to death in prison (LWOP).  Nixon has been a staunch supporter of the death penalty.  He gave no explanation.  Here from Missourinet, is his entire statement.

• After an exhaustive review, I am convinced of Richard Clay’s involvement in the senseless murder of Randy Martindale and find that the evidence clearly supports the jury’s verdict of murder in the first degree.

  Having looked at this matter in its entirety and after significant thought and counsel, I have concluded, however, to exercise my constitutional authority and commute Richard Clay’s sentence to life without the possibility of parole. Richard Clay’s involvement in this crime is clear, and he must, and will, serve the remainder of his life behind bars for his role in this heinous act.

• Tennessee Governor Phil Bredesen granted clemency to Edward Harbison, commuting his sentence from murder to death in prison.  Harbison's was one of a number of cases in which Bredesen granted some sort of relief Tuesday.  It was the only one involving a death row inmate.  His explanation, per the Tennessean, was a general one.

• "I've looked at these cases for a long time," Bredesen said in a statement. "I believe they represent a responsible and humane exercise of the governor's power and best serve the interests of fairness and justice."

• Colorado Governor Bill Ritter granted a full and posthumous pardon to Joe Arridy for a 1936 murder he didn't commit.  Of course, it's too late for Arridy.  He was killed in the gas chamber in 1939.  But it's a rare acknowledgment of out-and-out innocence in a guy we killed.  Here's the press release, including the governor's entire statement. 
• Arridy Press Release
• Our own, outgoing, Governor Ted, knowing there would be no political cost to commuting dozens of death sentences, granted relief to dozens of people.  None of them on death row.
• BBC reports that the drugs Arizona used to kill Jeffrey Landrigan came from Dream Pharma Ltd in London which shares a storefront with the Elgone Driving Academy.  Arizona promptly sent some of them over to California to alleviate a shortage there.  AP's Andrew Welsh-Huggins adds the information that the FDA helped Arizona make the connection to Dream Pharma.   In the same report, Welsh-Huggins notes that Ohio apparently has enough thiopental on hand to kill Frank Spisak in February but won't say whether it's also got enough to murder Johnny Baston in March.
• Oklahoma, which solved the no-thiopental problem by switching to a different drug, has killed two so far this year (Billy Alverson and Jeffrey Matthews).  The rest of the nation: None.
• And then there's Illinois which is now poised to be the third state (after New Jersey and New Mexico) to abolish capital punishment legislatively.  Last week, the Illinois House voted for abolition.  Yesterday the senate joined.  It's now up to the as-yet unindicted (this is Illinois) governor, Pat Quinn.  The News (Jersey & Mexico) were small potatoes.  They put few people on the row and killed fewer (NJ killed none, NM one).  But Illinois, until Ryan called a moratorium and then emptied the row, was a busy place.  They killed a dozen.  Ryan took off more than 160.  Now, in just a few years, they're back up to 15 on the row.  Connecticut voted abolition and the governor vetoed.  New Hampshire voted abolition and the governor vetoed.  Quinn hasn't said what he'll do, according to abc news, he said he "would look at the bill 'very carefully,' calling it an important measure that deserves lots of study."  We're watching.  Fingers crossed.

But while we await developments in the Land of Lincoln, it's time to head back to the Lone Star State where the Court of Criminal Appeals, to the likely-surprise of nobody, issued its opinion this morning in State ex rel Lykos v. Fine, the John Green case in which Judge Kevin Fine has been trying to hold a hearing to determine whether Texas procedures generate too significant a chance of the conviction, death sentence, and execution of the innocent.  Texas, they said, has no interest in discovering whether it's killing off bunches of innocent people.

In fairness, that's really not what the court said.  Instead, the court said this.

In the present case, however, Mr. Green is attempting to bring what he calls an "as applied" challenge to Article 37.071§ 2, in a pretrial motion before any evidence in his case has been heard.  His amended motion makes reference to "sufficient risk factors inhering in the application of Texas' capital punishment statute that the statute creates a constitutionally unacceptable risk of convicting and sentencing an innocent person to death."  He then sets out various subsections of his general discussion.

“A. The number of exonerations in capital cases nationwide is steadily increasing;

           “B.     Exonerations demonstrate there is a risk that innocent people have been executed, and that post-trial review cannot be trusted to catch all errors;

           “C.     State governors and legislatures, Supreme Court Justices, and American Law Institute have acknowledged the risk of executing innocent people;

           “D.     Five factors that produce a risk of wrongful conviction are peculiar to capital cases;

                      1.        Crime clearance rates and pressure on the police;

                      2.        Publicity;

                      3.        Death qualification of prospective jurors;

                      4.        Fear of the death penalty in defendants and their defense team;

                      5.        The tendency of capital juries to consider punishment prior to determining guilt;

           “E.      Seven factors based in Texas’ criminal procedure exacerbate the risks of wrongful convictions created by the risk factors peculiar to capital cases;

                      1.        Inadequate compensation of jurors results in jury pools that are not representative of a fair cross section of the community, diminishing the protection afforded by the jury against overzealous prosecution;

                      2.        Eyewitness identification testimony is introduced which has not been obtained through the use of safeguards established to reduce the risk of mistaken identification;

                      3.        Confessions are introduced without having been obtained through the use of procedures necessary to guard against false confession;

                      4.        Perjured testimony by informants who are paid or provided leniency in their own cases is often introduced;

                      5.        The prosecution’s introduction of forensic evidence appears to lend certainty to important forensic issues which is not justified and is misleading;

                      6.        Pretrial discovery procedures are inadequate to safeguard against the suppression of Brady evidence and the introduction of unreliable evidence;

                      7.        Juries are selected in a racially discriminatory manner, thereby reducing the thoroughness and accuracy of their deliberations;

           “F.      Two factors that are supposed to safeguard against the risk of wrongful convictions are so flawed that they contribute to the risk of wrongful convictions being sustained;

                      1.        State habeas proceedings;

                      2.        Clemency proceedings;

           “G.     Numerous Texas officials and agencies have expressed concern about many of the risk factors discussed here but no one has yet taken any remedial action;

                      1.        Texas Forensic Commission;

                      2.        Governor Perry’s Criminal Justice Advisory Council;

                      3.        Texas Criminal Justice Integrity Unit;

                      4.        Timothy Cole Advisory Panel on Wrongful Convictions.”

In a final section, Mr. Green then asserts that "the risk of wrongful conviction in Texas is epitomized by the tale of two arson-murder cases." And he proceeds to set out the facts of those particular cases in detail. Of course, there is no allegation of any arson in Mr. Green's indictment, so the relevancy of information concerning other defendants in other wholly unrelated proceedings seems highly dubious for purposes of the present case.

These are all very important issues and they certainly deserve careful consideration in an appropriate forum.

Important, perhaps.  But not today.  Not in court.  Not in Texas.  No no.

Still Hiding Under the Covers

The briefs are in.  Now it's up to the Court of Criminal Appeals.

Recap:

Judge Kevin Fine, presiding over the capital case State of Texas v. John Edward Green, is attempting to hold a hearing to determine whether the statute setting forth procedures for Texas capital trials leads to a too-great likelihood that innocent people will be sentenced to die and then executed.  The state, in the person of Pat Lykos, Criminal District Attorney for Harris County (that's Houston) where Green faces trial, wants to stop the hearing.

It asked the Court of Criminal Appeals to issue a writ of mandamus preventing the hearing.  The CCA refused.  The hearing began, and Lykos ordered her people to "stand mute" except for saying that all the evidence was irrelevant and that they were standing mute.  Then Lykos asked the CCA to decide on its own that it should reconsider mandamus and stop the hearing.  (Asking the court to decide on its own to reconsider a prior decision is a bizarre legal fiction that they've cooked up in the Lone Star State.)  The CCA said, 

Hmmm, maybe.  Why don't y'all brief it for us?  Due December 22.

And so they did.  And they told Fine to stop the hearing.

Mark Bennett has the briefs, in fact all the legal documents in the case, up on Scribd.  You can find them here.  He also has a handy examination of Texas mandamus rules and cases.  Here's the basic rule, taken from State ex rel Healey v. McMeans.

[M]andamus relief is available only when the relator can establish two things: first, that no other adequate remedy at law is available; and second, that the act he seeks to compel is ministerial. An act is ministerial “when the law clearly spells out the duty to be performed … with such certainty that nothing is left to the exercise of discretion or judgment.”

Bennett shows, clearly, that if the CCA follows its own precedents, and if it adheres to the principle defining mandamus and when it may properly issue, it will deny the state's motion and let the hearing resume.

If this were law school, that's what would happen.  If this were law school, that's what the briefs would be arguing about.  Need I point out that this isn't law school?  I thought there was no need.

In fact, if you read through all the main briefs, you'll find this extensive discussion of mandamus, which I'm reproducing in its entirety.

The mandamus or prohibition powers of this Court cannot, and should not, be employed to interfere with the 177th Court's quintessential exercise of its inherent responsibilities.  See White v. Reiter, 640 S.W.2d 586, 593-594 (Tex.Crim.App. 1982)("[i]t is . . . well settled that mandamus will not issue to compel a particular result in what is manifestly a discretionary decision").

That's it.

Instead, the state's briefs argue that the death penalty is constitutional (they come very close to arguing that the Constitution requires Texas to have a death penalty) and that therefore it is improper even to examine the question.  And they argue that Green isn't making his case properly.

Green's side of the argument, meanwhile, is that innocent people are sentenced to die, that some are actually executed, and that the kind of evidence the state wants to use against Green is the kind that leads to wrongful convictions and death sentences and executions.

As I said, this ain't law school.

As I've also said, I don't believe in the Law, that uppercase law-school model of reasoning where one puts forth carefully crafted arguments based on precedent and judges (or justices) coolly analyze, ratiocinate, and reach a decision based on the best reading of the case law and facts.  I suppose maybe it happens from time to time.  But mostly that's just bullshit.

Here's what happens in the tough cases.  Judges have their predilections.  They follow them.  Then they look for case law that they can point to and say

See, I'm just doing my job, following the precedent.

And if that requires misrepresenting the facts or the case law?  Hey, that's part of the job.  They're not really dishonest.  More like disingenuous.  And self-deluding.

OK, we can live with that because those of us in the trenches understand how it works.  We know that the point of legal argument isn't really to give a law school analysis.  It's to convince the judge to rule out way.  The legal stuff is to give the judge an excuse to do what we hope to have convinced the judge to do.

Which brings me back to Texas and the CCA and mandamus and, ultimately, Judge Kevin Fine and defendant John Edward Green.  Because the lawyers all know that the rule relating to mandamus will be an excuse offered for the decision.  It's not about whether mandamus is proper.  It's not.  It's about whether the CCA thinks the hearing is a dangerous enough idea that it should be shut down.

Dangerous?  A hearing?  How can it be dangerous?

Because then, you know, we might actually start to know.  

This whole escapade began, you'll recall, when Fine declared the Texas death penalty procedure statute unconstitutional because there was too great a likelihood of sentencing to die and then executing innocent people.  He took it back a few days later and scheduled the hearing to find out if it was true.  

From the state's point of view, that was worse.

I mean, the general ruling - that would never have stood up.  Just another bleeding heart judge carrying on.  (Texas has hundreds of them, you understand.)

Nothing new there.  Oh, sure, he thought the death penalty killed innocent people.  Fine didn't really need to have a hearing.  Nobody did.

In fact, the public knows.  The polling data makes that clear.  Innocents and the death penalty is like broken eggs and omelettes.  The only serious question is how often and do we care.  And that's just haggling over the price.

But a hearing?  Evidence?  Do that and the public might end up seeing the holes in the fabric, get  actual information and not just logical conclusion.  There's a difference between believing that the emperor has no clothes and actually seeing that his diddly-do is no bigger than a toothpick when he steps outside

It's that thing about the truth setting you free.  That part about knowledge being power.  That damned thing about executing not just innocent people in general but Todd Willingham and Claude Jones and maybe a couple of others we can give name to.

Among the briefs filed in the CCA was one signed by, among others, six men who were wrongfully convicted and sentenced to be killed.

• Kirk Bloodsworth
• Clarence Brandley
• Anthony Graves
• Ray Krone
• Randy Steidl
• Delbert Tibbs

Bennett concludes his analysis of Texas mandamus law with this.

Mandamus is reserved for cases in which someone will somehow be irreparably harmed if the writ does not issue. Unless having the public learn the truth of capital punishment somehow harms the State, Harris County District Attorney Pat “Transparency” Lykos’s petition for mandamus should fail.

What Lykos maybe understands, and what the CCA likely understands, and why there's actually something significant at stake here, is what we teach students in writing classes.  

Don't tell.  Show.  Make the reader see.

Because actual information really is different.  It's damned hard to put the genii back in the bottle.  You can overrule the judge after a hearing, but making the evidence go away is a lot harder.

So all across the country it's the same song. Don't test the DNA.  Don't consider the recantation.  Don't ask.  For Gods sake, don't learn.

The fear, and it's real, is that someone will rip off the covers.

BECAUSE EVERYONE WANTS TO BE TEXAS: The California Edition

The State of California may be about to execute an innocent man.

Ho hum.  Just another abolitionist rant.  If you spend any length of time trawling the sea of abolitionist and death row inmate websites on the internet you see that sort of claim all the time.  Just substitute the state of your choice (as long as it has an active death row) for California.  

Despite that "about to execute" language, it doesn't even need to be any time soon.  I've been reading for 10 years or more that Mumia Abu Jamal will be executed within months if something dramatic doesn't happen.  Someday, maybe, but don't be holding your breath either in horror or anticipation.

But this time it's different.  I'm not talking about the immediacy of thing in the state with the nation's largest death row in part because they rarely actually manage to kill anyone.  That may or may not be true.  I'm talking about the claim itself.  What's different is that it isn't coming from some abolitionist group or the activist friends and supporters of the maybe-soon-to-be-killed guy or from his lawyers hoping to gin up some support among whoever.

This is different because it's actually the first sentence in a judicial opinion.  By a judge of the United States Court of Appeals for the Ninth (hey, some things are maybe predictable) Circuit, the Honorable William A. Fletcher, joined by 4 other judges.

Nicholas Kristoff writes about the case in today's NY Times.  He says it's

an illuminating window into the pitfalls of capital punishment.

By which he means that it's another case where what sure looks like innocence isn't enough.  But really, that's only a part of it.  Still, it's maybe where we should begin, because Kristoff's basic claim isn't just that the guy is innocent.  It's that he was framed by the police.

Cooper

His name is Kevin Cooper.  Here's Fletcher's description of the crime.

Late at night on June 4, 1983, Doug and Peggy Ryen, their daughter Jessica, and their houseguest Chris Hughes, were brutally murdered in the Ryen home in Chino Hills, California.  Their son, eight-year-old Josh, suffered extensive injuries but survived. The victims had numerous chopping, cutting and stabbing injuries, caused by several different kinds of weapons. A number of cutting and stabbing wounds were inflicted after the victims were already dead. Josh was found in the late morning of June 5 in his parents’ bedroom, near the bodies of his mother and Chris. His father’s body was also in the bedroom. His sister’s body was in an adjoining hallway.

It was, of course, a horrific crime.  It didn't help (I know this will shock you) that all the victims were white and that Cooper is black.  Oh, and Cooper had escaped two days earlier from a minimum security prison in Chino where he was serving a sentence for burglary.  He'd been hiding out in a vacant house just over a football field's distance away from the Ryen's.

Naturally, the police figured he did it.  But of course, there's more to the story.  Here's Kristoff's summary of some of the evidence on which Fletcher relied.

Judge Fletcher laid out countless anomalies in the case. Mr. Cooper’s blood showed up on a beige T-shirt apparently left by a murderer near the scene, but that blood turned out to have a preservative in it — the kind of preservative used by police when they keep blood in test tubes.

Then a forensic scientist found that a sample from the test tube of Mr. Cooper’s blood held by police actually contained blood from more than one person. That leads Mr. Cooper’s defense team and Judge Fletcher to believe that someone removed blood and then filled the tube back to the top with someone else’s blood.

The police also ignored other suspects. A woman and her sister told police that a housemate, a convicted murderer who had completed his sentence, had shown up with several other people late on the night of the murders, wearing blood-spattered overalls and driving a station wagon similar to the one stolen from the murdered family.

They said that the man was no longer wearing the beige T-shirt he had on earlier in the evening — the same kind as the one found near the scene. And his hatchet, which resembled the one found near the bodies, was missing from his tool area. The account was supported by a prison confession and by witnesses who said they saw a similar group in blood-spattered clothes in a nearby bar that night. The women gave the bloody overalls to the police for testing, but the police, by now focused on Mr. Cooper, threw the overalls in the trash. 

OK, that's quite a lot.  And it leads Kristoff to make the point about what's wrong with our willingness to kill.

This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed? 

Damn good question. But it really only gets to part of the problem.

Look, I don't know whether the cops framed Cooper or not.  I don't know whether he murdered Hughes and the Ryens.  I don't know what happened that night in 1983, and (unless you happen to be the actual killer) neither do you.  Nor do the jurors or the judges or the Governator.  I know that Fletcher makes a pretty compelling case both for Cooper's innocence and for a police frame-up.  And unless he's flat-out lying about what's in the record, it seems pretty clear that to kill Cooper under these circumstances "comes perilously close to simple murder" as Justice Blackmun put it (dissenting, alas) in Herrera v. Collins.

But all that said, innocent people getting framed by the cops, innocent people getting convicted and sentenced to die, innocent people getting executed, those are the eggs broken for the omelet.  It's bound to happen if you kill enough people.  The outrage isn't in the innocence.  The outrage is in the ignoring.  Because that's where singular events become systemic issues.

And it's the ignoring, not negligent ignoring but purposeful ignoring, that's the other part of what Kristoff calls Fletcher's opinion:

[A] 21st-century version of Émile Zola’s famous “J’Accuse.” 

This isn't the first time Cooper's case has been before the 9th Circuit looking for en banc review.  Last time, it got that review, and the district court was specifically ordered to have some testing done, "in order to evaluate Cooper's claim of innocence."  Fletcher explains what happened.

First, we directed the district court to conduct further testing of a bloody tan t-shirt that had been found beside the road leading away from the house where the murders took place. The tan t-shirt was found soon after the murders. Initial testing of stains on the t-shirt showed that they contained blood consistent with one of the victims and not consistent with Cooper. Cooper presented evidence of the t-shirt as part of his defense at trial.

Long after trial, at Cooper’s insistence, the State performed a DNA test on some of the blood on the t-shirt. Cooper maintained that the test would prove his innocence. Instead, the blood tested positive for Cooper’s DNA. Cooper maintained (and continues to maintain) that his blood was planted on the t-shirt. If the blood was planted, the only possible source was blood taken from Cooper by law enforcement authorities. A vial of blood was taken from Cooper by San Bernardino County Sheriff’s Department (SBCSD) personnel on August 1, 1983, two days after his arrest. That blood contained an added preservative called EDTA. We wrote, “The presence of such a preservative would show that [Cooper’s] blood was not on the t-shirt at the time of the killings[.]” We directed the district court to test Cooper’s blood on the t-shirt for the presence of EDTA.

Second, Jessica Ryen, one of the murder victims, was clutching blond or light brown hair in her hand. We directed the district court to subject the hair to mitochondrial DNA testing.

The district court held hearings on Cooper’s application for habeas corpus in 2004 and 2005. It denied all relief.  A three-judge panel of our court affirmed, with one judge concurring specially.

There is no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.

As will be described in greater detail below, the district court impeded and obstructed Cooper’s attorneys at every turn as they sought to develop the record. The court imposed unreasonable conditions on the testing the en banc court directed; refused discovery that should have been available as a matter of course; limited testimony that should not have been limited; and found facts unreasonably, based on a truncated and distorted record.

The most egregious, but by no means the only, example is the testing of Cooper’s blood on the t-shirt for the presence of EDTA. As will be described in greater detail below, the district court so interfered with the design of the testing protocol that one of Cooper’s scientific experts refused to participate in the testing. The district court allowed the state designated representative to help choose the samples to be tested from the t-shirt. The court refused to allow Cooper’s scientific experts to participate in the choice of samples.

Indeed, the court refused to allow Cooper’s experts even to see the t-shirt. The state-designated lab obtained a test result showing an extremely high level of EDTA in the sample that was supposed to contain Cooper’s blood. If that test result was valid, it showed that Cooper’s blood had been planted on the t-shirt, just as Cooper has maintained.

A careful analysis of the evidence before the district court strongly suggests that the result obtained by the state-designated lab was valid. However, the court allowed the state-designated lab to withdraw the test result on the ground of claimed contamination in the lab. The court refused to allow any inquiry into the alleged contamination. The court refused to allow Cooper’s experts to review the bench notes of the state-designated lab. The court then refused to allow further testing of the t-shirt, even though such testing was feasible.

The district court placed two photographs of the murder victims at the end of its 159-page order denying relief to Cooper. One is a photograph of the photogenic Ryen family — two beautiful children, ten-year-old brown-haired Jessica and eight-year-old blond-haired Josh, and their attractive parents. The other is a photograph of eleven-year-old Chris Hughes, a handsome blond-haired boy. The district court had no analytic reason to include these photographs at the end of its order.*

Read those two paragraphs near the middle again.

There is no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.

As will be described in greater detail below, the district court impeded and obstructed Cooper’s attorneys at every turn as they sought to develop the record. The court imposed unreasonable conditions on the testing the en banc court directed; refused discovery that should have been available as a matter of course; limited testimony that should not have been limited; and found facts unreasonably, based on a truncated and distorted record.

That's the clear and precise outline of a picture that's filled in and colored in the rest of Fletcher's opinion.  And it's a devastating indictment of the system.  Because it's not a cop trying to make a weak case better.  (Think the OJ case or the cops who find excuses for that illegal search that turned up the equally illegal cocaine.)  It's a judge who willfully obstructs justice, who flaunts his willingness to flout the direct orders of the appellate court, who acts (it seems) out of bias and prejudice and sympathy rather than with even the pretense of legality.  And it's the supposedly ultra-liberal, criminal friendly 9th Circuit that looks at all that and says,

Yeah?

Down in Texas, John Green's lawyers want to show that the Texas death penalty statute creates a substantial and unreasonable likelihood that innocent persons will be convicted, sentenced to die, and executed.  Texas tourism people plug the state by claiming

Texas: It's like a whole other country.

I lived there for 12 years.  During that time, I taught at a university there, went to law school there, worked for a federal judge there, practiced law there.  Then I moved to Ohio.  Whole other country?

I'm afraid not.

----------------------

*I took out citations and references to the record from these paragraphs.

Ostriches Win for Now

The second part of the Lykos strategy was, you'll recall, to ask the Court of Criminal Appeals to reconsider its earlier decision not to shut down the hearing.  Here, via Mark Bennett's Defending People, is the state's request for reconsideration.

John Green State Request for Reconsideration of Mandamus

The basic claim is that Green is trying to use evidence of other wrongful convictions to prove that he will be wrongfully convicted and he can't do that.  

Green's lawyers said that's nonsense.  It's not that other innocent people have been convicted that's relevant.  It's that they were wrongfully convicted on the same sort of shoddy evidence the state is using to try to convict Green.  That's why his chance of being wrongfully convicted is so high.

John Green Brief in Opposition to State's Request for Reconsideration of Mandamus

Today, the Court of Criminal Appeals ruled.  It stopped the hearing while ordering both sides fully to brief their arguments as to why the hearing should or shouldn't go on.  Green's lawyers released this statement.

We are disappointed by the Texas Court of Criminal Appeals' decision today to temporarily stay the hearing in the John Green case, which is examining the risk of his being wrongfully convicted in his upcoming capital trial. In two days of testimony, the risk to Mr. Green of wrongful conviction based on flawed evidence was becoming readily apparent. The claim by Mr. Green is based on a constitutional theory never before examined by the Texas courts and derives from the mounting evidence demonstrating that the kind of evidence against Mr. Green -- eyewitness identification, testimony by paid informants, and fingerprint comparison -- is often inaccurate and leads to conviction of the innocent. We have confidence that when the Court of Criminal Appeals fully appreciates the evidence and the constitutional claim, it will allow the hearing to resume.

The state's lawyers didn't comment publicly.  Hard to blame them, really.  What would they say?

We're pleased that we have stopped this unlawful effort to prove that Texas routinely convicts innocent people of capital murder, sentences them to die, and sometimes executes them.  It is vitally important that the people of Texas never learn if this is true.  We are confident that when all is said and done, the Court of Criminal Appeals will agree that the public must not find out the truth.

Nah.  They wouldn't be that honest.

Death on Trial: Day 1

I wasn't there.  My understanding is all second hand, from reports and summaries and news stories. (I have been wading through what a lot of those hands have written, and yes, I know I'm mixing metaphors; tough).

Here's the quick summary as best I can manage it.  

The state began by objecting to the proceeding.  Prosecutors offered reason after reason why Judge Fine had no right to hold the hearing.  He was going to hold it anyway.  So the state announced that it was going to sit it out.  Prosecutors would attend.  They'd watch and listen.  But they wouldn't participate, would not speak.  Brian Rogers, in the Houston Chronicle, described that decision, made by the elected prosecutor, Pat Lykos as a

last-ditch strategy to end state District Judge Kevin Fine's judicial inquiry into the procedures surrounding the state's death penalty statute.

Casey Keirnan, one of John Green's lawyers, had something different to say.

It's arrogant, and it's contemptuous for the state to decide to not participate when they're trying to put my client to death.

Mark Bennett called it "disrespectful" because that was the best "newspaper-safe synonym" he could think of for “chickenshit."

Regardless, the judge rejected the prosecutor's plan.

I'm not allowing you to not participate.

But he can't make them cross-examine witnesses or make objections or call their own witnesses.  And the state won't do any of those things.  It reflects a contemptuous attitude, and it could be a dangerous ploy since the failure to object means that whatever evidence Green puts before Judge Fine will be admitted without objection.  But it also reflects, I suspect, a careful calculation.

Lykos (or whoever does her strategizing, I'm not there and don't know her) figures that there's a fair chance Fine will declare the Texas death penalty statute unconstitutional as applied to Green.  By sitting it out, Lykos can argue that Fine's ruling is obviously one-sided and he held what was essentially a kangaroo court.  She wasn't going to validate it by entering into his megalomaniacal game.

Or maybe not.

Regardless, stand mute (except for repeatedly saying that's what they were doing) is what the state did.

And so it began.

Green's lawyers laid out their job.  They told the judge that they had to convince him that there's a substantial chance that Green will be convicted and sentenced to die, even though he's innocent.  They can't wait until after he's been found guilty (if that should happen) to try and show that a mistake was made because the post-trial procedures are all about either legal technicalities or they demand hard proof of innocence.  Green doesn't have the sort of hard proof that works post-trial.  What he has is good reason to believe that his innocence will be irrelevant to the fact of whether he's convicted.

But what's the standard? asked the judge.  It's up to you, he was told.  All SCOTUS said is that it's unconstitutional if there's a "constitutionally unacceptable risk."  And you get to decide what that means.

And then they started on the testimony.  

The overview:  Mistakes get made.  Shit happens.

The details:  138 exonerations, 1 for every 9 people executed.

The reasons:  Bad lawyers, bad forensics, biased juries, etc., etc., etc.

And the beat goes on.

Of course, none of this will end anything.  Even if Fine says the Texas statute is unconstitutional, it won't change the law.  The state will appeal.  Eventually, the Court of Criminal Appeals will say that the death penalty is just fine, thank you.

But slowly, the public learns.  And doesn't much like what it learns.

So take that.  It's a win, regardless.

Capital Updates, We Got Updates

Build It and It Will Fall Down

 I wrote at some length the other day about Justice Stevens and how it took him 32 years to figure out that the rationality and coherence of the death penalty jurisprudence he signed off on in 1976 was a self-evident chimera to anyone who really thought about it.  And how even now, having concluded that the death penalty is unconstitutional, he can't quite admit that he got it wrong back then.

David Von Drehle, author of the brilliant Among the Lowest of the Dead: The Culture of Capital Punishment, makes the same point far more elegantly at Time.com.  It begins this way.

Suppose that you hired a highly regarded architect to design a fancy house. He comes up with the most impressive and elaborate plans, but all the basic calculations about stresses and loads are completely wrong, and from the moment you first open the front door, the place starts falling apart.
Still, you have a lot invested in the house, and you don't want to tear it down, so you bring in an engineer who proposes that you jack up the north wing, and when that doesn't work you hire a contractor who advises you to instead lower the south wing. One expert suggests reinforcing the foundation. Another expert tells you to redesign the roof.
You try them all, and more. And this goes on for years, plunging you into debt, baffling your neighbors, and never coming close to fixing your house, which looks more and more hopeless with each new "repair." Then one day, the original architect comes by, sees the ruin, shakes his head sadly and asks why, oh why, did you let all those butchers tinker with his beautiful design.
That's essentially what retired Supreme Court Justice John Paul Stevens, an architect of America's wreck of a death penalty system, has been doing in recent days. In an essay in The New York Review of Books, and again in an interview on 60 Minutes, Stevens has been busy blaming others for a mess of his own creation.
Like he said.

OKLAHOMA IS OK, OR NOT

About a month ago, discussing the shortage of thiopental and how Arizona smuggled secretly imported some from England for the execution of Jeffrey Landrigan, I noted that Reprieve was suing the government to prevent the export of the drug.

The other day, BBC reported that Vince Cable, Britain's Business Secretary, has halted the export.

The decision, which reverses the UK government's previous position, came amid a legal battle over sodium thiopental manufactured in Europe.

Mr Cable's lawyers had told the High Court they couldn't stop exports because the drug had legitimate uses.

However, he changed that position after seeing evidence that the drug was only being exported for use on death row.

Mr Cable said: "In light of new information I have taken the decision to control the export of sodium thiopental. This move underlines this government's and my own personal moral opposition to the death penalty in all circumstances without impacting legitimate trade."

It won't stop the killing, of course.  Oklahoma already figured out that one barbiturate isn't all that different from another and plans to use pentobarbital instead of thiopental for its next murder.

As NewsOK reports, pentobarbital is the "drug usually given in animal euthanasia and physician-assisted suicide in Oregon and the Netherlands."

U.S. District Judge Stephen Friot thinks that's fine.  He didn't actually say the drug is safe or proper for killing people.  He just said it "falls short of the level of risk" the Supremes said would make it unconstitutional.

If They Were Innocent, We Wouldn't Kill Them

At least, I assume that's what Texas will argue on Monday when the hearing we've been waiting for begins before Judge Kevin Fine.

Fine is the judge who's presiding over the capital murder case of John Edward Green, Jr.  Back in March, Fine said that the Texas procedures for imposing death sentences were unconstitutional because it was too easy for innocent people to get executed.  Then he sort-of took it back and scheduled a hearing.  The state tried to take him off the case.  Nope. 

There have been more delays and more briefs, but the show gets under way on Monday, December 6.

And, of course, along the way, Claude Jones has joined the list of the almost-certainly-factually- innocent-but-murdered-anyway down in Lone Star State.

We'll be watching.

Innocence on Trial - Part II

Mark your calendars.

November 8 - Texas

July 7 - Georgia

November 8, 2010

That's the date Judge Kevin Fine, presiding over the Texas death penalty case State of Texas v. John Edward Green, Jr., who briefly held that the Texas death penalty procedures were unconstitutional and that he'd hold a hearing on whether Texas executes innocent people, who the state tried to kick off the case as a result, but was not taken off will hold that hearing.

Here's Juan Lozano in the Houston Chronicle on the hearing.

The November hearing could last at least two weeks and death penalty experts from around the country are expected to testify, said Casey Keirnan, one of the defense attorneys that asked for the hearing. Keirnan and Bob Loper are representing John Edward Green Jr., accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery.
"I think everybody in the United States would agree that the possibility exists" an innocent person has been executed, Keirnan said. "We think there is much more than a possibility, based on all the exonerations, all the problems with the forensics."
Kari Allen, a prosecutor with the Harris County District Attorney's Office, said her office isn't opposed to a hearing that would examine the constitutionality of the state's death penalty law.
"We are opposed if the hearing is about whether or not Texas has executed an innocent person," she said. "We do not believe (Fine) has the jurisdiction to make that sort of ruling."

The thing about judges is that if you can't shut them down (and they didn't manage to shut Fine down), they pretty much do what they like.  Fine wants that hearing.  The prosecutor's opposition isn't likely to change that.  Unless some court intervenes, the innocence trial will be coming to Texas.  It'll be worth watching.

h/t Doug Berman.

July 7, 2010

Meanwhile, there was an innocence trial of a different sort in Georgia this week where Troy Davis was trying, under orders from the U.S. Supremes, to convince U.S. District Judge William T. Moore, Jr. that he's actually innocent of the killing for which he's been on death row.

Did he do it?  I don't know.  Is the evidence that he did particularly compelling?  Nope.  In fact, it's mostly evaporated.  (Though the state's case got a lot better when Moore ruled that he would not permit defense witnesses to testify that the other suspect confessed to them.)

The judge has ordered post trial briefing July 7 and promises a ruling soon after (whatever that means).

So July 7 and November 8

Mark your calendars.

But don't expect more than fireworks.  Whatever the rulings, nothing much is likely to change.  The believers will believe.  The doubters will doubt.

But still.

Arizona, Texas, Innocence - Or Not

One isWilliam Macumber, and his problem (other than being 74 and in failing health, with heart problems and arthritis and having spent 35 years in prison for a double murder it seems likely he did not commit), is that he's in Arizona.

The other is Chuck Jones, known as Butch.  His problem (other than having been executed in 2000), is that it's too late for him even if he didn't kill Allen Hilzendager.

The other day I talked about the decision in Holland v. Florida and paid some attention to the part of Justice Scalia's dissent where he explained that human decency and conscience might lead one to rule in Holland's favor, but that he was made of sterner stuff and believed it important that Holland be executed despite the unfairness of allowing it.  (OK, that's not exactly how he said it, but that's what it came to.)

Scalia's famous for this sort of thing, of course.  So's Sharon Keller, still Chief Judge of the Texas Court of Criminal Appeals (the hearing before the ethics commission is this coming Friday, June 18).

Sharon Keller, you'll recall, is the one who explained on Frontline that despite DNA evidence excluding Roy Criner as the rapist, his conviction would stand because we can't go around giving new trials to folks just because they've shown that they might be innocent.  (That's pretty much precisely what she said.  The exact quote is, "We can't give new trials to everyone who establishes, after conviction, that they might be innocent.")

Texas also gives is Rick Perry and John Bradley who together are doing a bang-up job covering up the likelihood that when it killed Cameron Todd Willingham, it probably killed someone innocent.

But as, the font of so much that's newsworthy these days (except, of course, perhaps Sarah Palin's boobs and the fact that God smote Jesus while sparing the Hollywood Hustler adult emporium just across the road), it's really no surprise that Arizona is doing what it can.

* * * * *

In 1962, a young couple were murdered in the Arizona desert north of Scottsdale.  Nobody was charged.  There may not have been a suspect.  Then, in 1967, Ernesto Valenzuela was charged with a similar double homicide.  He told his lawyer, and then a second lawyer and a psychiatrist, that he'd done the Scottsdale area killings, too.  All in confidence.  And they all kept quiet.

And so things stood.  Double homicide.  No suspects.  Cold case.

In 1974, William Macumber was just another guy whose marriage was falling apart.  That's when his wife, Carol, went to her boss - the local sheriff - and said that he'd confessed the killings to her.  And there was a partial palm print and a shell casing that prosecutors said were somehow matched to him.

By the time of the trial, Valenzuela had been killed in prison and the lawyers and psychiatrist were prepared to testify on Macumber's behalf.  But this was Maricopa County, and you know how that worked out.  The judge wouldn't let the jury hear about Valenzuela's repeated confessions.  Not surprisingly, Macumber was convicted and sentenced to life.

I don't know how many factually innocent people are in prison in the United States.  I've seen estimates ranging from about 0.1 to 20% of the prison population none of which seem to be based on much more than guesswork.  Whatever the percentage, even if you take that 0.1% and divide it in half, it adds up to a whole lot of people.  I don't know if William Macumber is one of them.  But lots of people think he is.  And that he was framed by his wife.

Their son, Ronald Kempfert is one of them.  According to Adam Liptak of the Times, it was 2003 when Kempfert heard from a lawyer looking into the case.

“Your father is innocent,” said the lawyer, Larry A. Hammond. “And we’re pretty sure your mother framed him.”
That would seem a lot to digest, but Mr. Kempfert, 42, said he felt no hesitation. “My reaction was that it didn’t surprise me,” he said. “She’s my mother, and I love her. But I think she’s capable of anything.”. . .
Mr. Kempfert said he believed that his mother had done more than lie.
“I can fully see how my mother could have set him up and framed him,” Mr. Kempfert said. “She had access to the evidence. She was doing fingerprint courses at the time.”

 Not too surprisingly, Carol denies doing.

But Mr. Macumber’s former wife, now known as Carol Kempfert, said he was a dangerous sociopath who deserved to die in prison. She denied making up his confession and tampering with the evidence used to convict him.
It is her former husband, she said, who is a pathological liar. “I was in law enforcement for almost 20 years, and no one came close to being able to manipulate like Bill,” she said. “This man could sell water to a drowning person.”
Mr. Macumber, she said, would have said anything to save their marriage. 

Huh?  What?  He confessed a double murder in order to save his marriage to a cop?  Anything's possible, I suppose.  

As I said, I don't know if Macumber killed those people.  What I know is that the Arizona parole board voted unanimously that because Macumber's innocent the Governor, Jan Brewer, should order him released.  That's unusual enough to be worth repeating.  Here's how Liptak put it.

Last year, the five members of the Arizona Board of Executive Clemency unanimously recommended to Ms. Brewer that Mr. Macumber be released after 35 years in prison “to correct a miscarriage of justice.”

That was in May 2009.  Brewer sat on it for six months.  Then, in November, and right after she announced that she was running for another term, Brewer denied the recommendation.  Liptak wondered why.

“Every executive clemency case is carefully scrutinized as the governor balances the very real and important concepts of public safety, justice and mercy,” [her] spokesman, Paul Senseman, said in an e-mail message.

That's the answer you give when you have no answer to give.  It says nothing.  And thereby says all.

It's politics, pure and simple.  Let him go, and it might come back to bite you on the ass.

Maybe you won't look tough enough on crime and will lose the election.  ("Brewer the Wuss," will read the signs.

Maybe he'll commit a crime.  ("Willie Horton Macumber," will read the signs.)

Maybe you're just a shit-ass lousy person ("Brewer sucks," should read the signs.)

I don't know.

* * * * *

I sneered above at the Texas approach to innocence what with Sharon Keller and the Perry/Bradley team choosing either to ignore it (Keller) or hide from it (Perry/Bradley).  The lower courts, though, can be a different story.  There's Judge Kevin Fine, of course, and his upcoming hearings on the execution of the innocent (see here, for instance).  Now add the Honorable Paul C. Murphy, visiting judge in San Jacinto County. 

Butch Jones, was executed in 2000.  It was back in 1989 that Jones was tried, found guilty, and sentenced to die for the killing of a liquor store owner, Allen Hilzendager.  Jones was no saint.  He'd spent plenty of time in prison.  He'd committed (no dispute about it) a murder.  But he insisted he didn't kill Hilzendager.  The alternative is that it was Jones' co-defendant, Kerry Dixon, Jr. who's doing life for his part - sitting in the car during the robbery murder.

Timothy Jordan testified that Jones confessed to him.  He's now recanted and says that Dixon told him it was Jones who did the killing.  That's a big difference.  Does it make Jones innocent?  No.  But it raises the question.

And now, 10 years after the execution, a judge has ordered DNA testing on a hair - the only physical evidence purportedly linking Jones to the killing.

The state fought the effort to get the testing, of course.  Only defendants can ask for it, they argued, and there's no defendant since Jones is dead.  Anyhow, there's other evidence that might be consistent with his guilt.  And who really cares?  You know, Jones was a career criminal, after all.  Besides, you test one guy's DNA you should maybe test everyone's.  My gosh, what a lot of work just to find a few mistakes.

Except, you know, maybe you'd want to know.  Cindy Horswell, writing in the Houston Chronicle, sums up the possibilities.

The hair fragment, left in the evidence room since his 1989 trial, was the only physical evidence connecting Claude Jones to the crime scene. A Texas Department of Public Safety expert could testify then only that a cursory microscope examination indicated the strand “matched” the suspect’s hair. The expert could not exclude many others whose hair could have the same characteristics.

The DNA testing being proposed now had not been developed before the trial.

Barry Scheck, Innocence Project’s co-director, said the DNA testing could do one of three things:

• It could prove Claude Jones guilt if he’s a match, similar to the post-execution DNA testing done on the 1981 rape-murder case involving the Virginia coal miner Roger Coleman.

• It could exonerate him if the hair matches his co-defendant, Kerry Dixon Jr., who was supposed to have remained in the get-away truck while the elder Jones entered the liquor store.

• If the hair matches neither of them, then the state did not have sufficient evidence to prove Claude Jones’ guilt, Scheck said.

Once again, I don't know what happened at Zell's liquor store in Point Blank, Texas.  Maybe Jones went to his grave lying about his innocence.  He wouldn't be the first guy.  On the other hand.

The state, of course, is appealing Judge Murphy's decision.  

Better not to know, and all that.

Except, like I say, maybe you'd want to know.

The Last Best Hope

They want him off the case.

That's Kevin Fine, Judge of the 177th District Court in Harris County, Texas, presiding over the capital murder trial State of Texas v. John Edward Green, Jr. The one who said that the procedures for imposing the death penalty in Texas are unconstitutional, clarified that decision, then rescinded it but scheduled a hearing on actual innocence for April 27.

Bennett is first out of the box with the news that on Thursday, Pat Lykos, the District Attorney for Harris County, filed a motion to recuse. She said the judge can't be fair because he believes innocent people have been executed and wants to hold a hearing on whether that's so. She said the judge can't be fair because he expresses dismay at the thought of executing someone who might be innocent but that the possibility, even the likelihood, is irrelevant as to whether the death penalty is constitutional. She said the judge can't be fair because higher courts have denied similar motions without hearings. She said the judge can't be fair because he's lying when he says that he believes the death penalty is constitutional. She said the judge can't be fair because he thinks Green is innocent or is presumed innocent or something. She said the judge can't be fair because he said he's the only judge in the state with the guts to actually declare the statute unconstitutional if he decides it is. And she said the judge can't be fair because some of his off-the-top-of-his-head statements misstate facts.

Mostly, she said that the judge can't be fair because that's the only way she can stop Judge Fine from holding a hearing on whether Texas has executed innocent people. And we know that Texas can't hold a hearing like that. Just ask Rick Perry.

The technical legal question is whether any of this, or all of it, is enough to lead a reasonable person to believe the judge is biased. The answer to that, pretty clearly, is no. But a clear answer to the technical legal question may not be of much moment in so contentious and politically charged an issue.

A couple of years ago, a trial judge in Ohio was planning to hold pre-trial hearings in a couple of death penalty cases regarding the constitutionality of Ohio's system of lethal injection. He appointed me to litigate the question. He ordered the state to turn over materials describing how it went about murdering people. The state filed a complaint with the Ohio Supreme Court arguing that the judge

1. Had no right to order discovery regarding Ohio's approach to lethal injection;
2. Had no right to appoint me to litigate the constitutionality of Ohio's approach to lethal injection;
3. Had no right to hold a hearing on the constitutionality of Ohio's approach to lethal injection; and
4. Had no right to issue a ruling on the constitutionality of Ohio's approach to lethal injection.

The judge fought the state and the court denied the state's request (without written opinion, so we don't actually know why). The hearing was quite a show. And the judge concluded, ultimately, that Ohio's approach to lethal injection was unconstitutional (a ruling the state promptly determined to ignore).

The thing is, you never know.

What you do know is that the hearing needs to occur. And that means a judge with the guts to do it.