In Which I Wish, If Just for a Day, My Texas License Was Still Active

I hadn't written about it because, frankly, it was hard to see how I might have done a better - or more interesting - job than Dahlia Lithwick did.  And aside from the fact that he and I have both worked on capital cases . . . .  Really, there just wasn't anything for me.  

The subject was David Dow, an effective, committed lawyer doing late stage capital defense work in Texas.  More specifically, the subject was David being held in contempt by the Texas Court of Criminal Appeals (where Sharon Keller is Chief Judge) for a maybe-late filing after having blown another deadline five years earlier.  And so he's punished by not being allowed to defend his clients in that court for a year.  It's a punishment that will hurt his clients far more than it will him. After all, they could get executed while he can't act. He can try and catch up on his sleep.

Here's Lithwick (hyperlinks removed).

One of the sad truths of the capital defense business is that some trial lawyers who show up to defend their clients have been known to sleep through their trials, fail to interview witnesses, or are too drunk to do their jobs. And yet reviewing courts almost invariably determine that such lawyers provided perfectly competent defense. As one Texas judge put it in the face of such allegations: “The Constitution does not require perfection in trial representation.” So, for instance, judges in Houston continued to appoint lawyer Jerome Godinich to represent capital defendants even as he missed one filing deadline after another, depriving his clients of crucial judicial review. That there is really no such thing as an ineffective lawyer is one of the cardinal rules of the death penalty machine. But dare to be an effective one? Well, that’s another story.
. . .
Nobody is arguing here for dissing courts or missing deadlines. But proportion is as important to the administration of justice as timeliness, and judges should know this better than anyone. We joke darkly about Texas and the death penalty a lot in this country, in part because Texas makes it so darn easy. Suspending one of the nation’s most prominent and outspoken death penalty lawyers in a snit is just silly. Suspending him for a year, while other lawyers doze and drink their way through trials as their clients face death, borders on the criminal.

As I said, I couldn't top that.

But you know, these stories have legs.  And while the Court of Criminal Appeals is the high court for criminal matters in Texas, it's not always the highest court.  That honor goes to the Texas Supreme Court which, in its realm, is, er, supreme.

From time to time, we in the law biz get to take a stand.  Speak truth to power.  Declare that this (whatever it might be) cuts to the heart of what we do and what our system is designed to do.

• They did it in Maricopa County, holding a rally to support the Rule of Law agains Sheriff Joe and his minions who work daily to enforce the Law of Rule.  Of course, Joe's still at it, but the rally was quite something.
• We did it in Ohio when a judge held new lawyer/new public defender Brian Jones in contempt for refusing to go to trial (it would have been his first trial) without being allowed time to prepare. Something like 75 of us signed the brief on Brian's behalf.
• And now in Texas.

The case filed in the Texas Supreme Court, is In re David Dow v. The Texas Court of Criminal Appeals.  The document is a Petition for Declaratory Judgment Or, In The Alternative, Writ of Mandamus.  Without going into the details, it asks the court to vacate the order preventing Dow from appearing in the Court of Criminal Appeals. 

There are, to the petition, some 24 pages of text.  followed by around 50 pages listing Texas attorneys who declare

I have read this motion and join in its filing.

Nobody sent me a draft of the petition to ask if I'd sign it.  And I couldn't have signed it if someone had because my Texas license is inactive.  (Costs me a lot less than keeping it active would.)

But damn, I'd have liked to.

Because what they did today to David, they'll do tomorrow to the next person who works too hard or effectively for his clients.  

Because Law of Rule, by god.

  David Dow's Petition for Declaration Judgment or, In the Alternative, Writ of Mandamus

Really, It Was the Other Guy

Whatever you think of the criminal justice system, it suffers from an unavoidable flaw.  It's operated by human beings.  That means it won't be perfect.

Whatever ought in some platonic sphere of ideal justice (whatever that might be), it won't always be what gets meted out.  Some folks will be treated more harshly than they should.  Others more leniently. Some number of factually guilty people will walk free because, for whatever reason, the jury didn't find the evidence sufficiently compelling.  Some number of factually innocent people will be convicted because, well, shit happens.

And that's with all the good will and honesty and integrity and competence and resources and . . . . You get the idea.  Because human beings are, well, human.  They're imperfect.  They're gonna fuck it up sometimes even when they do their best.

But, of course, it's not all good will and integrity and everyone doing the best they can.  Some of the folks involved - cops, witnesses, experts, prosecutors, defense counsel, judges, jurors - are dishonest.  Some are lazy.  Some are incompetent.  Some are just venal.

Sometimes there are no resources or no time.  There are political considerations even when they're denied.  There are prosecutors who cheat, judges who place their foot on the scales, incompetent defense counsel, and jurors who just by-God don't believe that innocent people can get charged with crimes. 

And there's simple human error.

All of which is why some number, and despite educated guesses nobody really knows what number, of factually innocent people end up on death row.  Some of them have been exonerated.  But there's no basis other than a fond wish for thinking that ll of them have, that we've found and corrected every mistake.  

Here's the math.  If we execute enough people, it's a statistical certainty that we'll sooner or later execute someone who just didn't do it.  Opinion polls make clear that most people think we've already done it, even if they don't have an instance they can point to.

Oh, we've got likely suspects.  There's Cameron Todd Willingham, of course.  And Ruben Cantu and, OK not Roger Coleman, but - you get the idea.  And then there's Carlos. 

February 4, 1983.  Wanda Jean Vargas Lopez was savagely attacked, stabbed to death, at a gas station/carry out in Corpus Christi, Texas. 


Carlos DeLuna was tried, convicted, and on Pearl Harbor Day in 1989 he was executed for her murder. He always insisted that he didn't do it.  It was, he said, another Carlos, Carlos Hernandez, who murdered Lopez.  Prosecutors maintained there was no such person as Carlos Hernandez.  They maintained that, even after Carlos Hernandez was arrested for the vicious murder of Dahlia Sauceda.

There have been questions about the case for years.  In 2006, the Chicago Tribune published an exhaustive study which strongly suggested that it was Carlos Hernandez who killed Wanda Lopez. Now there's The Wrong Carlos: Anatomy of a Wrongful Execution,* and you can decide for yourself.  

Jim Liebman, a professor at Columbia Law School, along with the Columbia DeLuna Project (Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White, and Daniel Zharkovsky) have produced a stunningly detailed and documented study, written plainly,** and supported by a website containing documents, photographs, transcripts, timelines, you name it.  Here's the data.  Make of it what you will. 

And what you will, if you bring any objectivity to it all, is that the title is exactly right.  They killed the wrong Carlos.

Start with the cover.  That's Carlos DeLuna almost certainly innocent but still killed for the crime, on the left.  On the right is Carlos Hernandez, who's pretty clearly the one who murdered Wanda Jean Lopez.  And got away with it.

How did it happen?  Liebman and company tell that, too.  It's a tale of sloppy investigation, a rush to judgment, dishonest prosecutors, incompetent and overburdened trial counsel, a judge who denied time and resources, and terrible luck.  It is, in other words, a perfectly ordinary story.  Except for the thing of cheap fiction - a second Carlos who's almost a, er, dead ringer for the first.

It's the ordinariness that rivets.  The authors come close to saying that at one point in their Epilogue.

[A] book permits an anatomy of not only a single obscure murder, but also the ensuing criminal investigation, trial preparation, two-part capital trial, multilayered appeals and botched execution in a case whose very obscurity makes it a far better representation of what usually goes on in criminal cases than do the facts and proceedings in more notorious and idiosyncratic cases, such as those of Nicola Sacco and Bartolomeo Vanzetti, Julius and Ethel Rosenberg, O.J. Simpson, William Kennedy Smith, and George Zimmerman's self-defense acquittal after killing Trayvon Martin.

But there's more.  It's not just that this shows something of what's more typical than the cases that usually make the headlines.  It's that if it was this easy for them to get the wrong Carlos, convict him with what the courts like to call "overwhelming evidence," and then execute him - if they could so simply fuck it up and kill the wrong Carlos, how often do they do it.  

If this is typical, my god.

Of course, sloppy investigations, cheating prosecutors, lazy or incompetent defense counsel don't necessarily mean fundamental mistake.  It's a pretty safe bet (though there's no way of actually knowing the correct answer) that the vast majority of folks charged with capital crimes are factually guilty of something at least close to the crimes they're charged with.  But if there's no meaningful check on the system - and all too often there isn't -- then with the best will in the world, they're gonna get it wrong some of the time.

the Wrong Carlos is a powerful, fascinating story.  It's a helluva read.  And it oughta give you nightmares.



-----------------------
*My thanks to the good people at Columbia University Press who sent me a copy to review.

** That's important to say.  Anyone who's listened to Jim Liebman speak or dipped into his treatise on habeas corpus knows that he can be difficult to understand when he gets into LawProf mode.

Texas Three Step

STEP ONE - LET'S CALL THE WHOLE THING OFF (or Who Cares If He Was Innocent?)

That's Cameron Todd Willingham, of course.

I'm not going to review the whole sordid mess in detail here, just the quick and dirty by bullet point.

• Convicted of capital murder and sentenced to die for setting a fire that killed his kids.
• Evidence that the fire was set is pure junk.  Science says there's no evidence of arson.  As in none.
• Executed anyway.
• When he signed off on the killing, Gov. (and presumed presidential candidate) Perry had the information before him about the junk science but chose to ignore it.
• More investigation makes public aware that there's essentially no evidence of murder.
• Texas Legislature sets up Forensic Science Commission to investigate shit like that.
• Just as Commission is set for hearing on Willingham case, Perry replaces three members, including the chair.
• New chair, John Bradley, calls off hearing.  Rewrites Commission rules to prevent any investigation.  Commission eventually rebels.
• Hearing is held after Perry is relected (which seems to have been the point) and surprise, experts say what we knew - no evidence of arson.  State brings in a lawyer to say that in his opinion there sure was.

Do you reopen cases?  Do you issue a real report on Willingham?  Do you admit killing an innocent guy?  Do you admit there's at least a chance you did?

Or do you get the Attorney General to issue an opinion saying that Commission could investigate the case but couldn't look at the evidence?

Alan Turner, writing in the Houston Chronicle, notes that current Commission chair, Dr. Nazim Peerwani, doesn't know for sure what will happen next.

"We will debate what impact the opinion has on Willingham at our meeting in September," he said. "It's something we will collectively decide."

Bradley, who was ousted from the chairship by the legislature, knows the right answer.

"I'm not on the commission, so I don't know what it will do," he said, adding that, given Abbott's ruling, moving forward with the investigation "would really threaten the rule of law."

He meant to say the Law of Rule.  Or maybe the Law of Cover-Up.  But then, like Humpty Dumpty, when he uses a word 

it means just what [he] choose[s] it to mean -- neither more nor less.

OK, maybe less.

Paul Kennedy has more on this.

STEP TWO - YOU'RE BREAKING MY HEART (or "It's real lives we are dealing with")

 

Last week, Rufus Sito Nanez, III lost his appeal.

Nanez had appealed his conviction on two counts of aggravated sexual assault.  His claim was that his trial lawyer was a grotesque incompetent.  The court of appeals disagreed.  Actually, it didn't just disagree.  It excoriated him and his appellate counsel.

Counsel is not ineffective simply because he did not do that which his accuser thought he should have done.   Nor is he legally deficient simply because some attorney who enjoys the benefit of hindsight and cool reflection would have taken a different tact.   Indeed, appellate counsel should not only recognize what is required by law but also use caution when calling someone ineffective.   Those before us today should heed that admonishment when next they think about invoking the theory.   Unfounded and undeveloped accusations like those uttered at bar needlessly belittle their human target and do little to serve a client's interests.   It “ain't” a game folks;  it's real lives we are dealing with.

Well, yeah.

But the lives at issue aren't the lives of the lawyers.  They're the lives of the defendants. 

The opinion in Nanez was written by Justice Quinn.  He's been down this road before.  In fact, he cites  an opinion he wrote in 1998 making the same point.

Claims of ineffective assistance seem to be the newest tactic in the criminal defense arsenal. They are increasingly being offered as a means of attacking the judgment. Yet, it has been our experience that very, very few have any semblance of probative value. Instead, appellants have ignored the admonishment that hindsight and perfection are not the test and have taken to castigating counsel for not doing what they would have done if they were lucky enough to have a record of the completed trial before them. It is enough that attorneys have become the butt of disrespect and incessant jokes within the public eye. But, to have attorneys attack attorneys on utterly baseless grounds, like here, where appellant does not even attempt to question the evidence of his guilt, is unacceptable.

OK, got it now.  You can only claim your lawyer was a fuck up if you're factually innocent.

Otherwise we might be concerned about, say, fair trials.

H/t Liberty and Justice for Y'all

STEP THREE - GOODNIGHT IRENE (or Don't Let the Door Hit You on the Way Out)

Killer Keller is running for Chief Judge of the Texas Court of Criminal Appeals.  Why not?  She wasn't actually censured or removed from office or defrocked or anything.  And there are still doors to slam, so her work isn't done.

If she wins the election this year and serves her full term, she'll have been CJ longer than anyone else in Texas history.  Enough.

From Grits.

Judge Larry Meyers - usually a member of the Keller-Hervey pro-prosecution wing of the CCA - has decided to run against Sharon Keller as presiding judge in 2012 in the Republican primary.

I'm not sure there's actually a wing of the court that isn't "pro-prosecution," but I get the point.  You wouldn't expect it of Meyers.

Meyers' challenge comes from a judge who's sided with Keller on most topics - and even went on a damage-control tour with the media on her behalf at the height of her troubles - but who now appears to have had enough of her. 

According to the Fort Worth Star-Telegram, there's nothing personal or even substantive here.  Meyers just thinks it's time for a change.

The normal term for this position is 8-10 years. As such, it is time to rotate the presiding judgeship on our Court.

More to keep a eye on.

As they like to say down there, 

It's a Whole 'Nother Country.

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.

Texas: It's a Whole Other Country

Before I go on to talk about Todd Willingham and Hank Skinner, I need to do one more quick note about the opinions in Billy Wayne Coble's case from Wednesday.
I say opinions, plural, because when I wrote about the Coble case (here) I focused on the majority opinion.  You know, the one that said Richard Coons is a fraud and his predictions of future dangerousness, predictions which have sent dozens to death row and at least a couple of those to death, are wholly worthless but that even so Billy Wayne should be killed.  What I didn't do was mention the concurrence which said, in essence,
Sure Coons makes it up.  But he's a psychiatrist and the fact that he has no basis for what he says doesn't matter.  He's a psychiatrist which means he has powers beyond those of mortal man.  And the defense never proved that his crystal ball gazing doesn't work.
OK, that's not how Sharon Keller (what, you thought it was someone other than she-who-falsely-believes-herself-to-have-been-vindicated) actually put it.  Here's what she said (footnotes omitted).

The evidence at trial—Dr. Coons testimony—shows that forensic psychiatry is a legitimate field, that predicting future dangerousness is within the scope of that field, and that using education and experience to assess future dangerousness is a proper application of the principles involved in the field. Notably, appellant has presented no evidence to the contrary. The Court faults Dr. Coons for failing to cite “books, articles, journals, or even other forensic psychiatrists who practice in this area” to substantiate his methodology, while acknowledging that Dr. Coons is “a genuine forensic psychiatrist with a lengthy medical career.” But appellant did not introduce any “books, articles, journals, or even other forensic psychiatrists” to testify that, contrary to Dr. Coons’s testimony, Dr. Coons’s experience-based method of evaluating future dangerousness is inappropriate.

Except that the law really is clear that the proponent of the testimony (that's the State of Texas) has to prove it's reliable.  Coble's lawyers didn't have to prove it was bullshit.  Keller, gets it exactly backwards.  But then she had a real fear:  If fraud's like Coons are stopped, maybe Texas won't get to keep killing so many people.  

Damn, and after she shut the courthouse.

* * * * *

While Billy Wayne Coble moves one step closer to being killed by the powers that be in Texas, Todd Willingham, who was killed by those powers, is having his case reviewed by a court of inquiry headed by Texas District Judge Charlie Baird.  It's a special Texas procedure to determine if Willingham was innocent.

After delays, the hearing got underway Thursday and lasted, according to press reports, maybe three hours.  Two widely recognized experts in the science of fire and arson testified.  Gerald Hurst explained that it's not theoretically possible ever to rule arson out as the cause of a fire, John Schwartz, in the Times, reported.

The judge then asked if “there’s nothing in the evidence you’ve seen here that suggests arson.”

“That’s correct,” Dr. Hurst said.

After Hurst, the judge heard from John Lentini who

ridiculed critical testimony at the trial that 20 factors, including burn patterns on the floor and cracks in the windows, proved that Mr. Willingham spread accelerants to fuel the fire.

No such chemicals were found in the house, Mr. Lentini said. Much of the analysis of Manuel Vasquez, the state fire marshal in the Willingham trial, “didn’t even meet the standards of 1991,” a time that Mr. Lentini characterized as having “a wretched state of the art.”

The current fire marshal, Paul Maldonado, stands by the work of the original marshals in the Willingham case, which Mr. Lentini said he found mystifying.

Baird was prepared to hear from the Governor, who ignored Hurst's analysis and signed off on Willingham's execution, from the current fire marshall, even from Willingham's wife who said the other day that Willingham confessed to her (something she's denied under oath on other occasions).  All declined to appear.

But wait.  Just as things drew to a close, a three-judge panel of the court of appeals in Austin ordered Baird not to rule.  The Navarro County District Attorney, intent on preventing the court of inquiry, convinced the court to call a temporary halt.

Arguments for why Baird should be allowed to rule are due October 20.

But really, there's not much to say.

It really is clear that there's simply no evidence Willingham set the fire that killed his children.  He may have been a terrible person (or not); he may not have cared that they died (or he may have); but one more time, in boldface, there's no evidence that he killed his kids.  None.

Of course, that won't mean anything to those who think death is all that matters.  Schwartz quotes our friend Kent Scheidegger on what will happen if Baird gets to rule and says Willingham was innocent.

“It’ll be trumpeted on the Death Penalty Information Center site,” he said, referring to a group that opposes capital punishment. “Nobody on the other side of the aisle is going to give it any credence.”

For they who believe, evidence only counts if it points to guilt.  

And you know, they've still got a flat earth and creationism and the Loch Ness monster.

* * * * *

Finally, up in Washington on Wednesday, the Supremes heard oral argument (transcript here) in Skinner v. Switzer.  Skinner is Hank Skinner.  He's the guy who wants Texas to let him have access to evidence to test it for DNA. Texas says no, we just have to kill you.

Here's Adam Liptak in the Times.

In the course of an hourlong argument at the Supreme Court on Wednesday about a death row inmate’s quest to test DNA evidence, the justices asked neither of the questions that people without legal training might have thought crucial: Why won’t Texas prosecutors consent to the testing? And could the results show that the inmate, Henry W. Skinner, is innocent of the triple murder that sent him to death row?

Actually, they did sort of ask the second of those questions.  And Rob Owen, who represents Skinner, sort of answered.  Of course Skinner hopes that DNA tests would show he was innocent.  It's just that those questions aren't up yet.  The immediate issue is whether Skinner has a right to ask the federal court to say that the Texas statute which says he can't get the material for testing is unconstitutional.  You might want to read that again.  Skinner's not asking the Supremes to order the testing.  He's not asking the Supremes to say that the Texas statute that says he can't get it is unconstitutional.  He's asking the Supremes to let him ask a lower federal court to decide whether the Texas statute is unconstitutional.

Back in March, Skinner came within an hour of being executed before the Court granted a stay.  Now, Anthony Kennedy wonders whether they should have.

Well, we don't grant a stay in order to decide a question. We grant a stay because of the likelihood of success on the merits. And that goes to the sentence. And now you are telling us that your attack doesn't go on the sentence. I don't see why we don't just lift the stay, under your own view of the case. 

When Kennedy is suggesting that the Court should drop the case and let your client be killed, that's a really bad sign.

* * * * *

Let's review:

• Billy Wayne Coble - Sentenced to die based on meaningless, unreliable evidence, but close enough for government work
• Cameron Todd Willingham - Executed for a crime there's no evidence occurred, but close enough for government work
• Hank Skinner - Trying to prove he's innocent but it looks like he may have no way of getting to court which he needs to do to get access to the evidence that, he says, would prove he's innocent.

It is alleged that when Davy Crockett was not reelected to Congress, he said

You can go to hell, and I'll go to Texas.  

He did.  He was killed there a couple of months later.

They do that in the Lone Star State.

Whitewash Halted

When last I posted about Cameron Todd Willingham I titled the post "Whitewash Coming?"

That was when the Texas Forensic Science Commission was presented with a draft report on the Willingham case concluding that the science employed may have been "flawed," but that the bozos who did the incompetent science investigation weren't negligent and didn't commit misconduct.  Of course, that was essentially irrelevant.  

It didn't get to the Commission's formal job: Looking at what went wrong and how to do things better.

It didn't get to the job everyone (except the governor and John Bradley) was really after: A dispassionate appraisal of the evidence which would show that Texas killed a man when there was no credible evidence that he was guilty: or even that a crime had been committed.

That was a first draft.  A second draft, one Bradley hoped and expected would formally be adopted at the Commission's next meeting, which was held on Friday, was circulated last week.  The inquiry would be over.

No need to actually hear from the experts.  No need for the entire Commission - including the forensic scientists, actually to examine the evidence.  No need to find out if the Texas Fire Marshall, Paul Maldonado, who claims now to be using the same best science it used then (which wasn't the best science then and sure isn't now) and stands by the old results is a liar, a fool, a toady, or a coward.  (Of course, it's possible he could be more than one of those things.)  No need for much of anything.

Then, suddenly, something went right.

Bradley lost control.

The scientists revolted.  So did the others.  Jeff Carlton's AP report summarizes what happened.

A Texas panel on Friday declined to clear fire investigators of professional misconduct for determining that arson caused a 1991 fire that killed three girls and led to the conviction and execution of their father.

Instead, the Texas Forensic Science Commission planned to meet in November to question fire experts about the professional standards used by arson investigators in the early 1990s. The commissioners are withholding judgment on whether investigators were wrong to say arson caused the blaze.

That decision came over the fierce objections of the commission chairman, John Bradley, who was appointed last year by Gov. Rick Perry. Bradley urged his colleagues to determine the investigators acted appropriately, and at one point he raised his voice and accused the commissioners of "shirking their duties."

Bradley pushed his colleagues to reach a consensus. He argued that either there was insufficient evidence to determine professional misconduct or there was no misconduct, and therefore investigators met the standards of their day.

But the panel disagreed, saying there appeared to be evidence that the Corsicana Fire Department and the state fire marshal's office were not following the standards from the early 1990s.

So they want to do their job.

Of course, they see the job differently than Bradley does.  He thinks the job is to approve what happened and close the books.  They think they're supposed to actually determine what happened and whether it was right.  To Bradley that's "shirking."  Interesting definition.  

And there's more.  Jennifer Emily in the Dallas Morning News reports this exchange.

Most commission members seemed to believe that the state should investigate other old arson cases to see if faulty science was used.

Peerwani said that he has called for a review of all deaths connected to arson cases over the last 20 years in his own jurisdiction, Tarrant County, to determine whether faulty science was used.

Bradley disagreed about the need for mandated reviews of old cases, saying that when DNA became a scientific standard, labs did not automatically test old cases.

But Eisenberg said that anytime there has been a question about a case in his jurisdiction, he has conducted DNA testing.

"But there's not a law," Bradley said.

"I don't need a law," Eisenberg shot back.

It doesn't get much starker than that.  Bradley can't think of why you'd even consider correcting mistakes and exonerating the innocent if you aren't legally obligated to.  (It's actually not all clear that he thinks you should bother even if it is legally required.)  The other Commissioners, well, they seem to understand.

The next hearing is tentatively scheduled for Nov. 17.  They're planning to hear from a panel of experts.

It's too soon for real optimism.  The Commissioners may yet fold.  Bradley and Perry may yet find a way to derail honest inquiry.  There may yet be a whitewash.

But for now, at least briefly, there's a glimmer.

Science, integrity, honest inquiry.  In Texas.

Where the skies are not cloudy all day.

h/t Grits for Breakfast and Waco Criminal Law Blog

Still Beware Sharon Keller (& Orly Taitz, too)

The Texas Supreme Court won't touch it.

"It" is Sharon Keller's warning.  You know, that we-won't-punish-her-but-you-should-know-she's-dangerous order from the Texas Commission on Judicial Conduct.  (I wrote about it here and here and here.)  The short version of the order was that Keller was a bad girl.  

• She ignored various "Binding Obligations" she had as Chief Judge of the Texas Court of Criminal Appeals.
• She violated some of the "Aspirational Goals" of a judge.

She was warned not to do it again.  Or maybe we were warned to stay away from her.  Or maybe both.  In any event, the Commission issued two Public Warnings.  It was the mildest punishment they could find.  Probably milder than any punishment they had the authority to issue.

She responded with a mandamus action in the Texas Supreme Court.  Because she is Sharon Keller.  Not someone who makes mistakes. Not someone who can have things done to her.

You'll recall that she insists she would behave exactly the same way again, which pretty well indicates that if there's a lesson for her to be learned, she skipped school that day.  But then, if you read her opinions it's pretty clear that she doesn't believe in the possibility of rehabilitation.

Anyhow, as Michael Graczyk explains in today's AP report, she went to the Texas Supreme Court.

Keller then appealed, asking for the public warning to be removed from her record and allegations of judicial misconduct to be dismissed.

Today, without explanation, they refused.

Keller Order - Texas Supremes

Not surprisingly, Graczyk reports that her lawyer, Chip Babcock, says

The case is "by no means" over, Babcock said Monday. He said he was writing a letter Monday asking Supreme Court Chief Justice Wallace Jefferson to appoint a special court of review or hold an entirely new trial similar to the one Keller had before the Judicial Conduct Commission.

"Whatever the court thinks is appropriate," he said. "We could have another trial in front of three judges appointed by the court if the court decides it's permissible."

Babcock acknowledged such a proceeding would be "unusual" and something that hadn't happened before.

Ut's kind of like how she describes those death penalty appeals of which she's so derisive.  You know, frivolous filing after frivolous filing after frivolous filing.
There are two differences, though.

1. Keller's filings now really are frivolous.
2. There's essentially nothing at stake here.

* * * * *

Meanwhile, in news from another Supreme Court, the U.S. Supremes this morning refused to grant a stay of the $20,000 sanction imposed on lunatic birther advocate/lawyer/dentist/realtor Orly Taitz for filing her own frivolous actions in federal court demanding that Obama provide a US birth certificate that will satisfy her.  The decision, without comment or dissent, appears in today's order list.

You can read a relatively sober discussion of Taitz and why she got sanctioned at the scotusblog or you can go to Lowering the Bar, do a search for "Taitz," and read what Kevin Underhill has to say about her, or you could do a Google search for "orly taitz is batshit insane."

Whitewash Coming?

The Texas Forensic Science Commission met today. 

Despite John Bradley's view that the Commission doesn't have jurisdiction to review the arson investigation that led to Cameron Todd Willingham's execution, they apparently took it up.  Juan A. Lozano, writing in the Houston Chronicle for the AP, reports what happened.

In a report prepared last year for the commission, fire expert Craig Beyler said the original investigation was so seriously flawed that the finding of arson can't be supported. He said the investigation didn't adhere to the fire investigation standards in place at the time, or to current standards.
The commission then appointed a four-person panel to review Willingham's case. John Bradley, who is chairman of both the panel and the commission, said the panel's review concluded arson experts in the case did not commit misconduct or negligence.
Bradley and panel member Sarah Kerrigan, a forensic toxicologist and director of a crime lab at Sam Houston State University, acknowledged the science the fire investigators used in the Willingham case was flawed. But they said that didn't translate into professional negligence, because investigators were relying on the techniques and information available at the time.
New fire investigation standards were not adopted until 1992, the same year Willingham was convicted, but it was several years after that before they were adopted nationally, said Bradley, who is also the Williamson County district attorney.
The panel will prepare its final report and present it for a vote at a meeting sometime before mid-October.

So there it is. "Flawed" science used by the investigators, but they weren't negligent and didn't commit misconduct.

Excuse me, but who cares about that?  I mean, sure, we don't want negligent or dishonest investigations.  But this isn't about placing blame.  It's about figuring out what went wrong and how to do better.

New science standards were adopted by the time of the trial.  And that was years before Willingham was killed.  Governor Perry had been told that the investigators' conclusions were bullshit before he determined that Willingham should be killed.   Want to talk about what went wrong?  Start with that stuff.  If the science was bad, fix it, don't rely on it.  And don't excuse the execution of a man against whom there's no serious evidence of guilt merely because you can pretend that the investigators weren't negligent or malicious.  

Oh, hey, and here's a thought.  What about if maybe they were just incompetent?

If the investigators used "flawed" science, then the point isn't to decide if they were negligent.  It's to find ways to make sure that all investigation is done with the best science possible.  And when there's better science, to employ it.

If inaccurate work by arson investigators lead to the murder of an innocent man, then the job is to own up to it.  And make sure it doesn't happen again.

Anything else is a whitewash.

h/t Paul Kennedy/ The Defense Rests

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.

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.

Spiderman v. Rick Perry

Texas has what's known as a "weak" governor.  That's not a shot at Rick Perry.  (I've taken some before, and will be taking some more in the paragraphs to follow.)  It's a description of the power of the Guv under the state's constitution.  Oddly, as a matter purely of constitutional law, the Lieutenant Governor is probably the most powerful figure in Texas.  (It used to be that being on the Railroad Commission was the second most powerful; I'm not sure whether that's still so.)

Still, being Guv is no small thing, and the practical power (including that bully pulpit) can be immense (not to mention a springboard to the White House).

One of the things the Guv apparently cannot do unilaterally is commute a death sentence.  That requires (or so governors claim)  a recommendation from the Board of Pardons and Paroles.

In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons; and under such rules as the Legislature may prescribe, and upon the written recommendation and advice of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and forfeitures. The Governor shall have the power to grant one reprieve in any capital case for a period not to exceed thirty (30) days; and he shall have power to revoke conditional pardons. With the advice and consent of the Legislature, he may grant reprieves, commutations of punishment and pardons in cases of treason. 

There looks to be some wiggle room in that.  If a governor ever wanted to commute a sentence without a recommendation from the Board, it might be possible.  But this is Texas and the 21st Century and the Guv's a politician and appoints the Board members and, well, don't hold your breath waiting for that to happen.

Anyway, this is a post about Hank Skinner and about the Board of Pardons and Paroles and about Governor Perry and about just what constitutes political courage and about Spiderman.  And by the time I've finished typing the thing, it may be obsolete, but I fear it won't be.

Let's start with Hank.  I've talked about him before.  On New Year's Eve, in 1993, in Pampa, Texas did  or (perhaps more likely) did not kill Twila Busby and her two sons.  Right now, he's on death row.  Texas plans to kill him tomorrow in revenge for the killings he did or did not commit.

He says, has always said, that he's innocent, and there's a wealth of evidence suggesting that it's true.  Some of that evidence includes the results of DNA tests that Texas promised would prove guilt.  There's more DNA testing that can be done.  It could, and likely would, conclusively answer the question.  Texas has steadfastly fought every effort to allow the testing to go forward.

Kill Skinner without doing the testing, and Texas has another Todd Willingham to deal with.  You know, a dead guy where the science may well say innocent but Texas can't be bothered with that.  It doesn't make for good press.

Good enough for the Board of Pardons and Paroles, though, it seems.  Yesterday, they voted unanimously against both commutation and a 60 day reprieve.  There's no explanation, which probably makes sense.  I mean, what would they say?

• We believe he's guilty and don't care to test our belief against actual evidence?
• The truth doesn't matter to us?
• What's a little murder among friends?

So we move to the Guv.  Perry either can or can't commute the sentence to life (or just free Skinner, for that matter).  Clearly, he isn't going to test the limits of his constitutional powers to do that, though.   What he can do, without question, is grant a 30 day reprieve and allow the DNA testing.  A lab in Arizona has offered to do it for free and within a 30-day window.  Human decency says that he should.

Which bring us to political courage.  Yeah, I know.  It too often seems an oxymoron, like Jumbo Shrimp or civil law.  But it's out there.  We honor it.  And we know that almost no governor has any.  But see, here's the beauty.  Perry doesn't need any to do the right thing.

Here's what Michael Landauer, editor of the Dallas Morning News said yesterday (I've stripped most of the links).

The Texas Board of Pardons and Paroles has decided against Hank Skinner in the high-profile case where a long list of evidence remains untested even though DNA might point to a plausible defense theory about another suspect. That means Gov. Rick Perry is Texas' last chance for a reprieve (the Supreme Court is also looking at issues in the case).

We have just posted our editorial set for tomorrow's paper urging Gov. Rick Perry to do the right thing and delay Wednesday's planned execution of Hank Skinner. Is he guilty? Honestly, I don't know. I tend to think jruies get things right most of the time, but in this case, there is a lot of evidence that needs to be DNA tested to be sure. I am hopeful Gov. Perry will do the right thing. There is no downside to ordering a 30-day reprieve. The upseide is that he looks like someone interested in the truth and interested in the kind of certainty that the proper dispensation of the death penalty requires.

Shortly after he became governor, I got a call from one of Governor Ted's people telling me that he was granting a reprieve for a couple of months to one of my clients who was nearing execution.  I said he ought to call a moratorium.  (That was after I got laughed at when I said he ought to just commute the sentence to life.)  I even dictated the press release, which went something like this.

I believe in the death penalty, and I believe Ohio's death penalty - in both theory and practice - is the best and fairest and surest in the nation.  Still, I know there are people of good will who disagree.  And so, in the interest of certainty, I'm going to impose a moratorium while we investigate to make sure that our death penalty law, in theory and practice, is as good as I believe it to be.  When we know it is, the naysayers will be done.  And we can and will resume executions.

It would take, I said, no political courage if it was done right.  He'd look courageous, but it would be a sham, since he'd be taking a high road with which nobody could much disagree.  Again, Governor Ted's aide laughed.

But you know, it's true.  Perry really could do that here.  And he's got the credentials of a killer, after all.  Ain't nobody gonna call him soft on the death penalty.  But they could start calling him careful.  They could say, "He recognizes that mistakes are important to prevent when lives are at stake."  They could say, with him, "I trust the system, but join with Ronald Reagan in saying, 'Trust but verify.'"

No political courage needed.  Just a dose of willingness.  And maybe interest.

So, at last, we come to Spiderman.  You remember.*

With great power comes great responsibility.

Even in a system with a weak governor, Perry has great power.  Now he can use it to create a legacy as a decent man, one who cares about not killing the innocent, one who thinks it's worth being sure.

Or, of course, he can say the hell with it.  Close enough for government work. 

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

*Actually, you remember that from the movies.  The comic book original is by the narrator, "[W]ith great power there must also come - great responsibility."  Of course, Stan Lee took the idea and modified the words only slightly from elsewhere.