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By Brian Stull, Staff Attorney, ACLU Capital Punishment Project

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"Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time." These were the eloquent words of retiring Justice John Paul Stevens in Graham v. Florida, in which the Supreme Court this term decided that the punishment of life without parole for minors who did not kill is cruel and unusual punishment. But Justice Stevens' words apply with equal force to his approach to the death penalty during his nearly 35-year tenure on the Court, which regrettably ends today.

The ACLU has long opposed capital punishment. By contrast, in 1976, Justice Stevens voted to uphold the capital statutes passed in response to the Supreme Court's 1972 decision in Furman v. Georgia. However, since then, he has repeatedly sought to eliminate unfairness in the application of the death penalty and to ensure that it was inflicted on only "the worst of the worst."

Justice Stevens wrote the court's opinion barring the death penalty for mentally retarded people as cruel and unusual punishment (link to Atkins v. Virginia). He joined the majority in several similar rulings, finding execution to be cruel and unusual punishment for adult rape, for participants in felonies resulting in death who did not themselves kill, intend to kill or intend that a killing take place, for juveniles who kill, and for the rape of a child.

Gradually, Justice Stevens began to have doubts about the fairness of capital punishment. As the Court retreated from its promise that the death penalty would be applied rationally, reliably and consistently or not at all, Justice Stevens became an eloquent voice in dissent.

In McCleskey v. Kemp, Justice Stevens dissented from the court's holding that a capital defendant could not show his death sentence was the result of racial bias by presenting a detailed statistical study revealing racial discrimination in the use of the death penalty. In Walker v. Georgia (PDF), he dissented when the court refused to take up a case showing that the Georgia Supreme Court had stopped conducting the meaningful appellate review of death sentences it had promised when the Supreme Court had upheld Georgia capital procedures. In Uttecht v. Brown, a case in which the ACLU filed an amicus brief, Justice Stevens dissented when the court ruled that states could exclude from capital juries prospective jurors who "harbor[ed] some slight reservation in imposing the most severe of sanctions."

Two years ago, in his concurring opinion in Baze v. Rees , in which the Court approved of Kentucky's lethal injection procedure, Justice Stevens explained the knowledge that he had accumulated during 34 years that had passed since he voted to uphold the post-Furman death penalty statutes in 1976. He said that he had learned that the death penalty could not be applied without violating the Eighth Amendment's bar on cruel and unusual punishment. He cited the failed promises noted above and a dawning factual development - the unacceptable risk that a state would execute an innocent person. In 1976, the court had assumed the reliability of our modern criminal justice system. In Baze, Justice Stevens cited the growing number of exonerations of death row inmates (a list that includes ACLU client Levon Bo Jones, and declared that "the real risk of error in this class of cases" made "the irrevocable nature of the consequences . . . of [execution of] decisive importance."

In the past two years, Justice Stevens has continued to grapple with death penalty cases by attempting to reach fair and legally-principled results on the crumbling terrain of the court's capital jurisprudence. When the court rises for its summer recess, it will lose an eloquent champion of fairness, integrity, and the rule of law. It will also lose a rare jurist who was not afraid to admit when the court had made a huge mistake - such as its affirmance of the constitutionality of capital punishment.

More and more politicians have taken to the occasionally useful medium known as Twitter, which allows text messages of a little more than 100 characters to be sent to so-called followers. But as noted by The Atlanta Journal-Constitution, Utah Attorney General Mark Shurtleff apparently sees the social networking tool as perfect for alerting his "followers" to an impending state execution. Recently, Shurtleff fired off a tweet reading, "A solemn day. Barring a stay by Sup Ct, & with my final nod, Utah will use most extreme power & execute a killer. Mourn his victims. Justice."

The Supreme Court did not intervene, and Utah death row inmate Ronnie Lee Gardner was put before a firing squad and executed. Before Gardner was executed, Shurtleff took to tweeting again: "I just gave the go ahead to Corrections Director to proceed with Gardner's execution. May God grant him the mercy he denied his victims." Shurtleff's tweets apparently didn't go over well with some other users, The AJC reported. One user proclaimed that Shurtleff's tweets would "probably go down in history as the dumbest most disgusting use of Twitter ever."

[image via wikimediacommons]

 

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By Matt Kelley, Online Communications Manager, The Innocence Project 

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A Texas state panel was expected on Friday to discuss of the hot-button case of Cameron Todd Willingham, who was convicted of murder based on flawed arson science and executed in 2004. Unfortunately, the case got just 15 minutes of a six-hour meeting, and the panel's chairman continues to choose bureaucracy and secrecy over real case work.

The Willingham case -- like countless other cases involving unvalidated forensics or outright misconduct -- requires a thorough, open investigation to repair broken forensic systems and prevent future injustice. Since becoming the Texas Forensic Science Commission (TFSC) chairman in October, prosecutor John Bradley has not demonstrated a desire to pursue these investigations, instead focusing on the commission's structure and procedures.

The Innocence Project formally submitted the Willingham case to the commission for review in 2006, and it was accepted in 2008, but a member of the panel said Friday that the commission's investigation of the case "is in its infancy." And now, Bradley says case-specific discussions will take place behind closed doors. Bradley appointed himself to serve on a four-member committee that will review the Willingham case in secret.

Critics have complained that Bradley has used his tenure to slow the commission's work and move it behind closed doors.

Houston Chronicle columnist Rick Casey writes: "[Friday's meeting] was just one round in what promises to be a protracted fight over whether the body will become a national model of how to improve the use of science in fighting crime, or just another secretive, bureaucratic body perceived as protecting licensed professionals rather than policing them."

But blogger Scott Henson, at Grits for Breakfast, says Casey is too generous in anticipating a "protracted fight." Henson writes, "Under its new chairman's leadership, the agency has already become a secretive, bureaucratic body."

Casey is right that the TFSC has the potential to be a national model for the review of forensic procedures and allegations of improper practices or outright misconduct. Last year, the National Academy of Forensic Science issued a groundbreaking report finding that most (non-DNA) forensic methods used as evidence in courts across the U.S. "have serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community."

The Willingham case raises serious questions about arson evidence and the reliability of forensic evidence in Texas. Willingham was convicted of murder in 1992 after his three daughters died in a house fire, from which Willingham himself escaped. Fire investigators relied at his trial on several techniques that had already been scientifically debunked. In the years that Willingham sat on death row, arson science continued to evolve, further disproving many of the foundations of his conviction. Documents obtained by the Innocence Project show that state officials received a report questioning Willingham's conviction before he was executed in 2004.

Since Willingham's execution, several leading experts in the field have found that the evidence used to convict him was seriously flawed. Last year, the TFSC commissioned arson expert Craig Beyler to review the case. In August, he submitted his report to the commission, finding that the forensic analysis used to convict Willingham was wrong - and that experts who testified at Willingham's trial should have known it was wrong at the time. Two days before Beyler was set to testify at a public meeting of the TFSC, however, Perry replaced the chairman with Bradley and the meeting was cancelled. Beyler has yet to testify before the group.

Bradley showed again on Friday that a timely, comprehensive review of allegations in cases like Willingham's is not his first priority. Until that changes, forensic reform in Texas will continue to stall.

The Stand Down Texas blog has a roundup of news coverage on Friday's hearing. For a complete background on the TFSC and the Willingham case, visit the Innocence Project's website.

[Image via hexodus....]

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By David R. Dow, Distinguished University Professor, University of Houston Law Center & Litigation Director, Texas Defender Service, a non-profit law corporation that represents death row inmates.

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My recent book, The Autobiography of an Execution, is about the death penalty, but it is not really a polemic. It is more a memoir about what it is like to be a death penalty lawyer - about how I try to not let days spent with murderers ruin me as a husband and a father. Before I wrote it, I had mixed feelings about memoirs. The entire genre seemed arrogant. But I discovered some things I wanted to say.

I was out having a drink with a colleague of mine. He asked me what I was working on. It was a typical case: a young black man had grown up without a dad and with a mentally unstable and abusive mom. When he was eight, his only brother, who was also his best friend, committed suicide. He joined a gang and started robbing people. One robbery included the brutal murder of an elderly white woman. His court-appointed lawyer went through the motions. When a poor black gang member kills a white woman, it's essentially inevitable. He wound up on death row.

In twenty years as a death penalty lawyer, I've represented more than a hundred death row inmates. All murders are tragic and irreparable, but you don't hear about most of them. There was no reason for my colleague to know anything about the case I was working on. It was not from the part of the state where we live; it was not high-profile. But I could tell from the look on his face that the case was familiar to him. Finally I realized why: He knew the murder victim and her family, and he was close to them.

I felt a need to tell him that I was not indifferent to the pain that the murder victim and her family had suffered, just because I was representing the man who was in part responsible for inflicting it. I didn't want him to think I cared more about my client than I cared about him. I know how easy it is to confuse the belief that murderers are entitled to vigorous legal defenses with the conclusion that the lawyers who provide that defense are insensitive to the injuries their clients have inflicted. I wanted to try to correct that mistake.

There was something else. I had a friend who was murdered. Years later the murderer asked me to represent him. He did not know that I knew his victim. I wrote him and said I couldn't help. I'm against the death penalty. I did not think the man who murdered my friend should be executed. But I was incapable of being the lawyer who tried to stop it. That's another reason I wrote this book: to try to communicate to death penalty supporters that I know what they feel. I know, because I feel it, too.

The last reason is the most important. My wife Katya and I have a nine-year-old son named Lincoln. I have a recurring dream: A moment before I die, someone hands me a list of how I have spent every waking moment of my life. This list is the reason I refuse to accede to Lincoln's repeated requests that I join Farmville on Facebook. (Farmville is a virtual farm where you plant crops, raise livestock, and otherwise pretend to be a farmer.) I'm fine with the hours I've spent watching Sponge Bob with Katya and Lincoln - how is that any more of a waste than reading a great novel by myself? - but I do have regrets. Sometimes I don't get home until after Lincoln has gone to sleep, and the reason is that I've stayed late at my office, trying to stave off the execution of a convicted murderer. It would be one thing if we succeeded most of the time, or even half the time. But when your batting average is one for ten, or one for twenty, how do you justify missing a chance to read your kid a book before bed?

Lincoln's first word was moon. His second was Mama. One day when he was three I spent all day at the prison. I told a client who was set to be executed the next evening that our clemency petition had been denied and there was nothing left to do. He begged me to think of something else, but I couldn't. He pleaded with me not to abandon him. So I sat there, making small talk, until the guards made me leave. When I got home and walked into the kitchen, Lincoln said, Dada, you seem glum.

I can relate to people who don't want to have kids. What I don't get is having them and then not caring. You would think I would understand this by now. With a handful of exceptions, my clients had parents who were appalling. The lucky ones were ignored. The others were routinely raped or beaten; some were punished by being scalded with boiling water or burned with cigarettes or beaten with electric cords. If the government had really cared about any of these kids, it would have taken my clients away from their parents before they were old enough to go to school.

I represented Willie Pondexter for more than eight years. Once toward the end of his life I questioned his ability to recall the precise details of something that had happened to him when he was only six years old. He looked at me and said, When your momma chases you around the house with a butcher knife, screaming that she's gonna kill you, and you have to lock yourself in the bathroom and call 911, that's something you don't forget.

Three year old kids deserve unvarnished joy. They are not supposed to know the word glum. They shouldn't need it to describe their parents. I had to find a way to leave my despair somewhere else, to make sure my moods didn't darken Lincoln's days. That exercise turned into this book.

People ask me whether it has worked. I tell them it's a process. It will. I'm pretty sure it will.

Twila Jean Busby's family has waited over 16 years to witness the execution of Hank Skinner, who was convicted of murdering Busby and her two adult sons on New Year's Eve in 1993. After yesterday's reprieve, granted by the U.S. Supreme Court, their wait continues.

Skinner, who adamently proclaims his innocence, was spattered in blood and hiding in a neighbor's closet when he was tracked down by police three hours after the murders. He claims that he could not have committed the murders on account of having passed out next to the victims after using vodka and codeine.

DNA evidence from the crime scene remains untested. Skinner argues that the evidence will prove his innocence. His lawyer, however, refused to test the evidence in preparation for trial, fearing that it would only add to the case against Skinner.

In blocking Skinner's execution yesterday, the Supreme Court took no action as to the untested DNA evidence. The Court's reprieve was granted pending the justices' consideration of whether to review Skinner's case. Should they decide not to grant certiorari, Skinner's fate is returned to the hands of Texas Gov. Rick Perry, who has indicated that he will not block or delay Skinner's execution.

[Image via ynse.]

Convicted murderer Lawrence Reynolds now has until next Tuesday to recover from an apparent suicide attempt before Ohio state officials carry out his death sentence.

When Reynolds was found unconscious in his cell over the weekend, the state faced a predicament: save the inmate scheduled to undergo lethal injection in a matter of days at taxpayer expense, or let him die. The state chose the former option, and has rescheduled his execution, which was previously planned for today.

"We have a constitutional duty to provide health care for this inmate until the execution commences," said a spokesperson for the Ohio Department of Rehabilitation and Correction. "And we are legally responsible to carry out executions under the law. We will meet both our legal obligations."

Reynolds' execution was initially scheduled for last October, following that of inmate Romell Broom. Officials badly botched Broom's execution, however, failing to find a functional vein in either of the former intravenous drug-user's arms. The attempts to execute Broom were terminated by Gov. Ted Strickland after two hours and as many as 18 insertions of a needle which reportedly struck muscle and bone. In response to a temporary reprieve on the execution of Reynolds and another inmate, granted by the U.S. Court of Appeals for the Sixth Circuit, the state then became the first to adopt a one-drug lethal injection protocol. Since then, Washington State has followed suit.

This is the first time an inmate on Ohio's death row has attempted suicide. A full investigation into how Reynolds obtained the drugs on which he attempted to overdose is underway. 

[Image via Wikimedia Commons.]

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By Scott Phillips, associate professor in the Department of Sociology and Criminology, University of Denver. Phillips is author of a recent ACS Issue Brief, Hire A Lawyer, Escape the Death Penalty?

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Since the Supreme Court reinstated capital punishment in the landmark 1976 case of Gregg v Georgia, 1,195 people have been executed in the United States. Texas is often considered the epicenter of the death penalty, accounting for 449 executions. But executions are not evenly distributed across Texas. Harris County - home to Houston - is the true capital of capital punishment. With 112 executions, Harris County has executed about the same number of offenders as all of the other major urban counties in Texas, combined. In fact, if Harris County were a state it would rank second in executions after Texas.

Perhaps not coincidentally, Harris County is also the largest jurisdiction in the nation to use the appointment method of indigent defense - meaning the judge assigns a private defense attorney to the case. Critics have argued that the appointment method is plagued by five problems: (1) flat fee compensation (defense counsel receives a standard fee regardless of the number of hours worked, so each hour of work reduces the rate of compensation and detracts from private clients); (2) the potential for insufficient support services (defense counsel must receive approval from the judge to hire support services such as investigators and experts); (3) a potential conflict of interest for the defense attorney (defense counsel's personal income depends on remaining in the good graces of the judge to secure future appointments); (4) a potential conflict of interest for the judge (the judge must balance the defense counsel's requests for support services with the county commissioner's requests to control the costs of indigent defense; the judge must also consider the possibility that generous spending on indigent defense could hurt his/her chances of re-election); and (5) questionable appointment practices (some evidence suggests that judges occasionally make appointments for inappropriate reasons, such as whether the potential appointee is a friend or campaign contributor).

Despite such serious criticisms, researchers have not answered the most basic questions: Do procedural problems produce differences in case outcomes? Is the district attorney (DA) more likely to seek death against defendants who have appointed counsel? Is the jury more likely to impose death against defendants who have appointed counsel? Put differently, is the appointment method merely procedurally flawed or truly a matter of life and death?

To answer such questions, I examined the 504 cases indicted for capital murder in Harris County from 1992 to 1999. The findings suggest that defendants who must accept court appointed counsel are disadvantaged. The DA sought death against 101 of the 369 defendants with appointed counsel, compared to just 1 of the 31 defendants with hired counsel. Of the 101 defendants with appointed counsel who advanced to a death penalty trial, 83 were sentenced to death. The lone defendant with hired counsel who advanced to a death penalty trial was acquitted. Between such extremes are cases with mixed counsel - meaning the defendant had hired and appointed counsel during different stages of the case. Here, the DA sought death against 27 of the 104 defendants with mixed counsel, and 15 of them were sentenced to death. Combining the two stages of the process reveals the following: 0 percent of defendants with hired counsel were sentenced to death (0 of 31); 14 percent of defendants with mixed counsel were sentenced to death (15 of 104); and 23 percent of defendants with appointed counsel were sentenced to death (83 of 369). Such patterns are stunning: hiring counsel for the entire case eliminates the chance of a death sentence, and hiring counsel for a mere portion of the case substantially reduces the chances of a death sentence.

Hiring counsel also dramatically increases the chance of being acquitted. The acquittal rate for defendants who hired counsel for the entire case and were disposed at trial was 30 percent (3 of 10), compared to 1.5 percent (5 of 337) for all other defendants disposed at trial. Remarkably, if the rate for the former group held across the board then the number of acquittals would have catapulted from 8 to 104 (30 percent of 347 = 104). The relationship between hired counsel and acquittals is troubling - it does not seem plausible to conclude that defendants who hired counsel were 20 times more likely to be innocent.

The findings are unequivocal: hiring counsel alters the legal landscape. Does that mean the rich are getting away with murder? No. Examining average income in each defendant's residential neighborhood revealed that virtually all capital murder defendants are poor. The fact that some of the defendants from such poor neighborhoods can hire counsel suggests that others, perhaps relatives and friends, have pooled resources in the hour of need.

What should be done? In September 2009, the Harris County Commissioner's Court voted to create a public defender office. The implementation of the public defender's office is currently under further consideration as the budget process unfolds. The move to establish a public defender in Houston represents genuine progress and is a commendable step in the right direction. But the plan under consideration is a hybrid model: indigent defense would be provided by a mix of public defenders and appointed attorneys.

Rather than taking tentative steps, I argue that Harris County should replace the appointment method with a public defender office that handles all indigent cases. Doing so would eliminate the structural deficiencies inherent in the appointment method and reduce disparities in case outcomes (prior research demonstrates that prosecutors secure death sentences in 0 to 50 percent of cases in jurisdiction with a public defender, compared to 50 to 100 percent of cases in jurisdictions with the appointment method). Houston's distinction as the capital of capital punishment creates a special obligation to provide the most rigorous system of indigent defense possible. Only a top-notch public defender with resources proportionate to the DA can meet such a standard.

Following in the footsteps of Ohio, Washington became the second state to adopt a one-drug protocol for lethal injections. The single-drug method replaces the three-drug combination widely used by states, and upheld by the U.S. Supreme Court in Baze v. Rees.

Washington's decision was made public in filings with the state's high court in the case of convicted murderer Darold Stenson. The state's Attorney General Rob McKenna filed the disclosure, requesting that the court dismiss Stenson's appeal of his death sentence. McKenna argued that Stenson's constitutional claims are rendered moot by the change in protocol.

Though the state seemingly submitted the one-drug method to circumvent Stenson's constitutional claims, the state maintains that the three-drug cocktail is constitutional. In fact, the three-drug method will remain available to death-row inmates in Washington who request it.

Ohio became the first state to adopt the one-drug method of lethal injection after the botched execution of Rommel Broom. In Broom's case, executioners tried for hours to find an accessible vein, prompting Gov. Ted Strickland to call off the execution. Ohio then made the switch to its one-drug injection, which has since been used in carrying out death sentences of three inmates. Ohio is currently on pace to challenge Texas as the state executing the most inmates in 2010.

[Image via Dirty Bunny.]

The majority of Texas counties continue to rely on procedurally flawed method that is failing poor defendants facing the death penalty, according to research published in a new ACS Issue Brief.

University of Denver Sociology and Criminology Professor Scott Phillips studied more than 500 death penalty cases in Harris County, home of Houston, which the author dubs the "capital of capital punishment," and found that a method of employing court-appointed lawyers is riddled with procedural problems.

Phillips writes:

Defendants who hired counsel for the entire case were never sentenced to death. Even defendants who hired counsel for a portion of the case were substantially less likely to be sentenced to death than defendants with appointed counsel.

The findings are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies in the appointment method of indigent defense. The system is flawed, not the individuals who work within the system.

Beyond being procedurally flawed, Phillips maintains the method, which is used in 252 of the state's 254 counties, has life and death consequences. He notes that "38 of the 41 defendants executed to date had appointed counsel."

Phillips urges the state to create a "public defender office with resources proportionate to the DA's office." Such an office, he maintains, would "reduce differential treatment and eliminate the structural deficiencies inherent in the appointment method."

The Issue Brief, "Hire A Lawyer, Escape the Death Penalty?" is available here. It is Phillips' second Issue Brief for ACS. He first wrote on racial disparities in capital punishment cases. That Issue Brief is available here.

Does a Texas prosecutor's affair with the trial judge in a capital case violate the defendant's right to a fair trial? That question could face the U.S. Supreme Court if it grants certiorari in the case of Charles Dean Hood, who was sentenced to death in 1990. He only obtained depositions of Judge Verla Sue Holland, who presided over Hood's case and the prosecutor, Thomas S. O'Connell Jr., in 2008. The Texas Court of Criminal Appeals considered Hood's case, but still ruled 6-3 to uphold his execution. 

Hood's appeal to the Supreme Court immediately drew the support of 21 prosecutors and 30 legal ethics experts.

"A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself," the ethics experts wrote to the high court in their amicus brief. "Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative."

Attorney and ACSblog contributor Scott Horton agreed, writing this morning that "Texas is in the process of declaring itself a judicial ethics-free zone."

Writing in The New York Times, Adam Liptak notes that the Supreme Court has demonstrated a willingness to dabble in judicial ethics:

Last year, [the Court] ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

"The probability of actual bias on the part of the judge," Justice Anthony M. Kennedy wrote for the majority, was "too high to be constitutionally tolerable."

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift - a penis made of chocolate.

Concerns for judicial integrity have haunted Texas of late, as suggested by Horton. Just released today is "Hire a Lawyer, Escape the Death Penalty?," an ACS Issue Brief by Professor Scott Phillips. Phillips researched the death penalty's application in Houston and surrounding Harris County, which is the county with the largest number of executions in the United States and the largest jurisdiction that uses court-appointed lawyers instead of a public defender to represent defendants who cannot afford an attorney. Phillips study reveals that "[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal."

The tale of Todd Cameron Willingham also raised concerns, drawing widespread attention to a case in which many say Texas executed an innocent man. Writing in The New Yorker last fall, David Grann detailed the case against Willingham, who was convicted of killing his young daughters. Prosecutors in Willingham's case relied heavily on what one expert has since called "junk science" considered by either modern evidentiary standards, or those in place at the time of Willingham's prosecution. That case is being considered by a state commission established to investigate allegations of error or misconduct by forensic scientists. 

And questions about judicial ethics have dogged Judge Sharon Keller of the Texas Court of Criminal Appeals. Keller refused attorneys for death row inmate Michael Wayne Richard extra time to file papers on the night of Richard's execution. Keller promptly closed the courthouse doors at 5 p.m., and Richard, prevented from timely filing his papers due to technical difficulties, was executed later that evening. Keller remains the subject of a special prosecution, in which opening arguments recently took place. The court on which Keller sits is Texas' top criminal court, which also reviewed Hood's case and reinstated his death sentence.

[Image via AnEyeForTexas.]