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Houston's Death Penalty Hullabaloo
Harris County Texas is the death penalty capital of the democratic world. It accounts for about 1 percent of the U.S. population but has carried out nearly 10 percent of the country's executions since 1976. So when a state district judge in Houston, Kevin Fine, unexpectedly ruled Texas's capital punishment procedures unconstitutional last week, it was a shot heard 'round the world.
Attorneys for the defendant in the case, John Edward Green Jr., who is charged with killing a woman in a robbery and shooting her sister, praised the decision as "the beginning of the end of the death penalty in Texas." But proponents of the death penalty, who carry larger bullhorns, were indignant. Greg Abbott, the state's attorney general, called the ruling "legally baseless," while Governor Rick Perry, who has presided over 211 executions during his long tenure, denounced the "activist judge [for] legislating from the bench."
Under fire from politicians and the media, which highlighted the magistrate's unusual background--his history of drug use, his liberalism, his tattoos--Judge Fine backed off on Tuesday, rescinding his decision and scheduling a hearing. But the legal and ethical issues are hardly settled. Acting on a pre-trial defense motion, Judge Fine asserted that Texas's death penalty is unconstitutional not because it's cruel and unusual, the province of the Eighth Amendment, but because the state's judicial institutions fail to guarantee criminal defendants due process under law, as required by the Fourteenth Amendment.
A growing body of evidence suggests that Judge Fine is correct, that Texas's practices in death penalty cases are more arbitrary than fair--and that innocents sometimes get the needle. The state's legal procedures tilt toward death from the moment a capital defendant reaches the courthouse door, especially in Harris County. There is no public defender system (though a fledgling office is under development), so low-income defendants get an attorney appointed by the trial judge. Unlike full-time prosecutors, defense lawyers are paid a flat fee, which rewards indolence since strenuous advocacy depresses the hourly wage. There is no set budget for independent experts, so most forensic evidence is vetted only by the county's infamously sloppy crime lab, which, according to a wide-ranging investigation launched in 2002, has botched hundreds of cases, almost always in favor of law enforcement. According to studies conducted by sociologist Scott Phillips, the outcomes of Harris County's capital prosecutions have been significantly influenced by a defendant's race, educational attainment, and ability to hire a private attorney.
Prompted by a string of scandals involving judicially appointed roustabouts who slept through their clients' trials or showed up to court drunk, Texas passed the Fair Defense Act in 2001, increasing state funding for indigent defense. Yet in Harris County prosecutors still outspend defense attorneys more than two to one. While the DA's office has a staff of 30 investigators, publically retained defense counselors have none.
Judicial review is supposed to guard against miscarriages of justice at trial, but Texas's elected appellate judges often wield their gavels as rubber stamps. In recent years, the Texas Court of Criminal Appeals, the state's highest criminal court, has refused to release inmates despite DNA evidence proving their innocence, declined to overturn a guilty verdict despite revelations that the judge and prosecutor were sleeping together during the trial, dismissed police and prosecutorial misconduct as irrelevant, and refused to consider a life-or-death stay request when it arrived after business hours, resulting in a hasty execution. After embarrassing rebukes by the U.S. Supreme Court--a body dominated by law-and-order conservatives--the Texas Monthly labeled the Court of Criminal Appeals "the most notorious state high court in the country."
Texas's prosecutorial judiciary, more than the state's elevated crime rates or the harshness of its juries, keeps the 6:00 pm shift at The Walls in Huntsville unusually busy. Although others states have larger death rows, Texas has carried out almost 40 percent of the nation's executions since 1976--450 in all.2 Harris County alone is responsible for 112 executions, more than the entire Commonwealth of Virginia, the country's second most active death penalty state.
The numbers make Texas's capital justice system the most effectively lethal in the United States. But the flip side of efficiency is error, and Texas also leads the nation in the discovery of wrongful convictions, including 40 by DNA evidence and 11 exonerations from death row.
Worse, Judge Fine contends that the state is failing to exonerate and is thus "executing innocent persons"--a fear borne out by extensive posthumous reviews of at least five capital cases. Most famously, in 2004 Governor Perry approved the execution of Cameron Todd Willingham (one of my research subjects), despite overwhelming evidence that his conviction for homicide by arson was based on discredited fire science. Last fall, the State Forensic Science Commission was moving toward clearing Willingham, albeit after his death, but before hearings could be held, Perry replaced the commissioners, thereby quashing the inquiry.
Advocates of judicial restraint argue that Texas should improve its capital punishment system legislatively, but in my research on the history of crime and punishment in the South, I found that meaningful change has almost always come from the outside, from the abolition of slavery forward. On a range of issues from racial bias in jury selection to capital verdicts in juvenile cases, Texas has stepped back from severity not after having second thoughts but in compliance with federal court orders. This could flip as the state's rapidly changing demographics alter its electoral and law enforcement culture, but until Texas's standards of decency evolve, maverick judges like Kevin Fine should be applauded for speaking uncomfortable truths. What Texas needs more of is precisely what its attorney general fears: "unabashed judicial activism" in the interest of equal justice.- Posted in
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Show AllThe article mentions "botched" forensics, although much of the error in Harris County forensics are intentional, as articles of a few years ago describe labs, particularly drug labs, tweaking results in favor of the prosecution. Recent articles also highlight medical examiners who actively pursue conclusions of shaken-baby syndrome in infant deaths, to the rate of about 20 times the reported national rate, in addition to a refusal to charge involuntary manslaughter in these cases rather than premeditated murder.
As for Texas's Criminal Court of Appeals having its notorious reputation, it is likely that it has an actual policy (Georgia's similar policy has been reported on) to deny all appeal requests at both the district and state level. The stated rationale for the appeal is that the appeal can be taken to the federal level with a writ of habeas corpus, so it isn't something that the state and counties need to bother with. A more plausible rationale is that judges are elected, not appointed, in Texas and are therefore under pressure from public rage and media insufficiency resulting from reports of convicted murderers receiving appellate acquittals or being remanded to trial, often on the fear (and hype) that most acquittals are not the result of fair trials and competent defense, but rather of procedural technicalities that most media peddlers would sell to us as not in fact being relevant to a rational conclusion of guilt or innocence.
Regardless of the reason for such a policy of denying all appeals, because it is a policy (at least in Georgia, and regarding any state this is certainly a question that needs to be answered) it effectually nullifies the entire appeals process and therefore constitutes a blatant violation of Amendment 14, and with regards to the required appeals in a death sentence, a violation of Amendment 8 as well.
Please keep in mind that as this story, and the innocent convictions it refers to, involve "innocence projects", that the vast majority of innocence claims cannot even be addressed by these groups.
An innocence project is typically associated with a law school in the same state as the trial and works pro bono with a claim of innocence. They do not require DNA evidence (these are the most famous innocent cases and obviously the easiest to discern) but they almost always require the collection of new evidence that was not used in trial.
In many cases there is no available new evidence, especially years after the initial investigation. In many other cases there is a great deal of exculpatory evidence which was deemed inadmissable in trial. Often this evidence should be admitted, but the defense isn't on the ball with questioning the prosecutor's demands that it not be admitted. There is nothing an innocence project can do with this evidence. An appellate judge will point out (or the prosecutor will do this for him) that the defense's neglect to object to the original refusal to admit means the convict agreed with its refusal to admit.
Associated with the various innocence projects are lists of innocence claims, some of which are available online. The vast majority of these claims cannot be acted upon, usually for the reasons stated above. If the rate of veracity of these claims is the same as the rate of the proven claims, the number of wrongfully convicted individuals would be about 10 times that which is reported, and this does not account for those who do not seek the help of innocence projects.
Nobody March 12th, 2010 10:07 am -- I can't quarrel with you. Your conclusion rings true, even if "10 times" might need some statistical proof.
What I thought most notable about the article is the omission of Judge Fine's chief claim: that in a substantial percentage of death sentence cases in which the defendant maintained innocence after conviction, DNA evidence has been uncovered, after conviction, resulting in reversal. Therefore, if DNA evidence were available in those cases without it, a similar percentage of ALL death penalty convictions in which the defendants persist in claiming innocence would be overturned. Or would have been overturned if the defendants had lived.
I believe this is called deductive reasoning. I find it totally persuasive. Judge Fine seems to be the first jurist to even notice it.
Gov. Perry should face the needle for his MURDER of innocent people -- pure and simple -- charge him and try him. In Harris County.
Gary
"Men regard it as their right to return evil for evil -- and if they cannot, feel they have lost their liberty."
-- Aristotle
I've long wondered what it was in the Southern culture or belief system that made these people so hateful and mean-spirited. Different people over the years have suggested as possible root causes...slavery, which is inherently cruel of necessity, the militarism and belligerence which infects Southern thought, the extreme heat in the region which boils brains and makes folks short-tempered.
But I dunno. You can't walk two blocks in a Southern city without some poor benighted soul coming up to you asking if you've accepted jesus as your personal savior. This is an area that loudly and frequently trumpets its religion for all to hear. Now as I understand christian precepts this is a system that encourages kindness, mercy, forgiveness, etc.
It's a puzzlement to me and has since I lived in Richmond forty years ago. Can anyone on this forum enlighten me?
Nobody said "As for Texas's Criminal Court of Appeals having its notorious reputation, it is likely that it has an actual policy (Georgia's similar policy has been reported on) to deny all appeal requests at both the district and state level."
I can't comment on what Georgia's courts do but Texas courts are busy and accept hundreds of cases per year.
According to the Texas Court of Criminal Appeals own website:
"The appeals and habeas-corpus petitions give the Court of Criminal Appeals the heaviest caseload of any appellate court in the United States."
I have no facts on which to disbelieve this claim.
Gee whiz, how can a proud death-penalty state's Court of Criminal Appeals have the heaviest caseload of any appellate court in the United States if the death penalty is such an effective deterrent?
[scratches head]
There are two levels of criminal appeals in the state. Only state-level appeals (along the lines of a state supreme court) are heard by judges' discretion. District appeals (the first round) must be granted to anyone who files in time. However, hearing an appeal does not require the appellate judges to do anything. They can and do default to the trial decision. I admit it is unclear how to literally distinguish between awarding an appeal and awarding any redress of issues brought up in the appeal, which is what my post refers to.