200 Executions: Texas Death Machine Waltzes On

Today, Amnesty International was outside the Harris County Courthouse protesting the 200th execution under Governor Rick Perry which is scheduled to take place on June 2, 2009. Since Perry became governor of Texas in December 2000, he has signed more execution orders than any other governor in U.S. history. George W. Bush had only signed 152 death warrants during his governorship. Terry Hankins is scheduled to be the 200th person to be executed under Rick Perry.

It is fitting that Amnesty International chose the Harris County Courthouse as the sight of its protest. Just two years ago, the human rights organization published an international report on Harris County and the death penalty that found that if Harris County were a state, it would be second only to the State of Texas in the number of executions carried out. Although not the largest county with the death penalty nor the county with the most murder cases eligible for the death penalty, Harris County had more death sentences imposed and executed than any other county in the United States. The reason for the disparity was that the District Attorney’s Office under Chuck Rosenthal was bloodthirsty and showed little restraint in seeking the death penalty. Lawyers from his office pushed the envelope in trying to get those convictions. On appeal and in writs of habeas corpus, there were accounts of Brady violations, racism in jury selection and prosecutorial misconduct. But with the help of a chorus of conservative judges, the Harris County Death machine waltzed on. Rosenthal saw it as a badge of honor to have that many death penalty convictions carried out.

Numbers so high would suggest that either the death penalty is not a deterrent or our criminal justice system under Rosenthal and others failed to protect the citizens of our county. For every death sentence imposed, one or more lives were lost (there were victims of crimes). I am certain that nearly all of the family members of murder victims would rather the murder had never occurred. If more crimes were occurring which were eligible for the highest possible sanction, then the Harris County District Attorney’s Office was a failure under Rosenthal. Crime was not being eliminated…. Citizens were not being protected. The cowboy mentality only stroked egos. It was not a life vest for the citizens who were drowning in the increasingly unsafe areas of our county. But a clear majority of voters SUSTAINED! objections to Rosenthal's regime at the polls.

Our new DAs office may be taking a different approach. I have been handling a Capital Murder case these last few months. Earlier today, I got a call from the ADA assigned the case who informed me that they would be dismissing the case. She told me that they came in possession of evidence which was favorable to my client; evidence which showed that someone else committed the crime. She tracked me down earlier this week when she came into possession of this evidence and made it a priority to make the disclosure to me. It was late in the afternoon when she called me today, but nevertheless she told me that she was going to try to find a Judge to sign the dismissal. She did not suppress Brady. She acted diligently to right a wrong. My client who had no prior criminal history, has a little more reason to have faith in the criminal justice system. Perhaps we may have a little more reason to have faith that the Texas Death machine is losing steam.

Impeach Judge Keller

This past week, I visited a potential client at the Polunsky unit in Livingston, Texas. The Polunsky Unit houses death row inmates. I have visited there several times and each time I go, I am always amazed at all of the volunteers who visit the Unit on a daily basis to befriend and pray with death-row inmates. There are many people who have donated their lives to fighting against the death penalty. Their passion for the issue is unequaled. While there, I spoke with one volunteer and she asked me did I think they would remove "Killer Keller." She was referring to Court of Criminal Appeals Judge Sharon Keller who currently faces charges before the State Commission on Judicial Conduct.

On September 25, 2007, Judge Keller refused to keep the clerk's office open an extra 20 minutes to receive a last-effort pleading from the attorneys for condemned inmate Michael Richard. Richard's lawyers were having computer problems that prevented them from turning in their motion before 5:00 pm. Richard was executed just hours after Keller locked the door.

Richard's pleading followed a U.S. Supreme Court decision earlier that same morning that raised doubts about the constitutionality of lethal injection. That gave Richard's lawyers an opportunity to stay their client's execution until the Supreme Court revisited the issue. Had the motion been accepted, a stay of execution would have been granted.

Keller's decision to close the court at 5 p.m.violated the court's unwritten policies for handling executions. It also broke sharply from tradition. In Texas, it's not unusual for judges and clerks to take last-minute pleadings at their homes in death penalty cases. The Judge assigned to receive any last-minute pleadings from Richard's lawyers was expecting to receive a pleading. Richard's lawyers called the Court and informed them that they would be making a late filing. Moreover, on execution day the courts don't have a strict closing time.

Keller's actions defied the Supreme Court decision from that day, which resulted in an unofficial nationwide moratorium on capital punishment. To speak plainly, the effect of Keller's actions was to kill a man months before his execution would have proceeded. She became Judge, Jury and Executioner.

Years ago, I served as special counsel for the State Commission on Judicial Conduct for the removal of a Judge. From my experience, the lawyers and investigators at the State Commission were good people who took their jobs seriously. Prior to seeking the removal of a Judge the Commission thoroughly investigates the case, speaking to many different witnesses and collecting other evidence. Judges are given a "presumption of innocence" in these proceedings and the Commission tries to counsel judges to insure compliance with the judicial cannons.

For the commission to seek removal of a Judge, speaks to the severity of the allegations and the belief that the action cannot be corrected. The alleged actions of Keller were reprehensible. Based on the allegations, Keller should face criminal charges. Whether or not one agrees with it, the State has the authority to take human life. However, that authority is limited by the United States Constitution. If there is a question about the Constitutionality of the exercise of that authority, then that issue must be addressed before the authority can be exercised. Keller usurped the Constitution when she effectuated the death of man when there was a question about the authority/process. He died before he should have died. That is not the function of a judge at any level. The Commission's objections to Keller's fitness to serve as a judge in the State of Texas should be SUSTAINED!

The Chair of the Texas House Committee on the Judiciary and Civil Jurisprudence, Rep. Todd Hunter, R-Corpus Christi, will hold a hearing on April 27, 2009 on Lon Burnam's resolution (HR 480) to create a select committee to determine if Sharon Keller should be impeached. It is a process which is separate and a part from the Commission's actions. Mark Bennett, president of the Harris County Criminal Lawyers Association, and others are travelling to Austin on Monday to support the impeachment of Keller. Although the Commission has the authority to obtain a ruling that Keller never hold Judicial Office again, impeachment would send the message that the people do not condone actions by judges that circumvent the constitution. So, I agree with that volunteer who said to me "They ought to impeach Killer Keller."

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

For a good argument against the death penalty see http://www.youtube.com/watch?v=TVMho2cP1NE.

For a video seminar discussing issues related to the death penalty see http://fora.tv/2008/11/02/Elisabeth_Semel_The_Death_Penalty_Clinic

An Unusual Majority: Stevens, Souter, Ginsberg, Thomas and Scalia

Today, the United States Supreme Court decided Arizona v. Gant, which expanded protections against unreasonable searches and seizures. The Court SUSTAINED! an individual's objections and assertions that his Fourth Amendment rights were violated by the government. The Court all but eliminated the blankett application of the "Search-incident" to arrest exception to warrantless searches. This decision by the Supreme Court is a departure from previous rulings on the Fourth Amendment by the Court.

Specifically, the Court held that "Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest." In other words, the police cannot search your car unless they have grounds to arrest you and they reasonably think that there is evidence of the crime for which you were arrested in the car. The first part of the Court's holding (if they reasonably believe the arrestee might access the vehicle) should rarely occur because a person under arrest will usually be under police control and custody.

This decision is significant and interesting in part because of the strange coalition of Justices that made up the majority - Justices Stevens, Souter, Ginsberg, Thomas and Scalia. Rarely have these Judges been on the same side of any issue. Yet this decision all but eliminates the situation where the police could trump up a traffic infraction or some other crime on which to arrest someone and then justify a search of their entire vehicle. After this decision if the police search a vehicle after arresting for a traffic violation, they can only search for evidence of that traffic violation. Driving While Black, and other offensive law enforcement tactics have been dealt a surprising blow by an unusual majority. It is a departure from court precedent dating back almost 28 years. In this era of police abuse and cowboyism, it is a welcomed change.

Here is a link to the Court's decision.

http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf

Guilty, But Actually Innocent

This morning, the Houston Chronicle printed an Op-Ed written by jurors who found Richard Danziger guilty of an Austin Sexual Assault and murder case. After serving 12 years of a life sentence; DNA and other evidence showed that Danziger was actually innocent of the crime. Stories like Danziger's have become common in Texas in recent years.

Danziger was convicted of the 1988 rape and murder of a young woman who managed a Pizza Hut in Austin, Texas. As she opened the store for business; she was tied up, raped, and shot in the head. Richard Danziger and Chris Ochoa, roommates at the time, worked at a nearby Pizza Hut. Some how they became the focus of the police investigation into the murder and were picked up by police and questioned separately. Following three days of interrogation Ochoa falsely confessed that he and Danziger committed the rape and murder. Ochoa pled guilty, taking full responsibility for the shooting, and testified against Danziger at a 1990 trial. Danziger maintained his innocence throughout, but was found guilty and was sentenced to life in prison.

Eight years later, Achim Marino, who was serving three life sentences in a Texas prison, confessed to the crime. He sent letters with detailed knowledge of the crime to then-Governor Bush, the police, the newspaper, and the district attorney. His letters went unanswered for two years even though police found items he had described. After a letter from Marino was made public, Ochoa and Danziger were able to get DNA tests, which excluded them and incriminated Marino. In 2001, Danziger and Ochoa were officially exonerated. By then, Danziger had been attacked in prison by inmates, kicked in the head, and sustained serious brain damage.

In their Op-Ed, the former jurors expressed remorse for their decision and shared that they did not know the details and circumstances surrounding Ochoa's confession. They assert that Ochoa's lengthy interrogation "was characterized by lies about inculpatory evidence and threats that were used for hours against him." None of this information was revealed to them during the trial because the entire interrogation had not been recorded. They suggested that recording of interrogations would eliminate this problem. However, rule changes would merely be a bandaid on the wounds of injustice and not the ternicate that is needed.

Why the letters from Marino, the true culprit, went unanswered for over two years is indicative of the problem with most wrongful convictions. For officers to constantly threaten a suspect, disregarding the possibility that the suspect's protestations regarding his innocence might be true, is indicative of the problem - paradigm paralysis. Paradigm paralysis typically occurs when there is an inability or refusal to see beyond current models of thinking. Many in our criminal justice system would rather an innocent man be found guilty than a guilty man go free. They presume everyone guilty until proven innocent.

This mindset, and the unwillingness to change from it, is what under girds a prosecutor's desire to hide evidence that is exculpatory. It is why a prosecutor might refuse to test DNA or other scientific evidence because a negative result might weaken their case. It is why a prosecutor might rely on intimidation and threats to coerce a plea. Simply put....it is why we have wrongful convictions.

Rule changes might calm some of the winds of the storm of false convictions, but what is needed is a paradigm shift. Craig Watkins, the Dallas County District Attorney, advocated criminalizing the failure to disclose Brady Material. Prosecutors who were discovered to have suppressed exculpatory evidence could face criminal charges under Watkins' approach. Suprisingly, Dallas County leads the nation in DNA exonerations. Perhaps it was witnessing all of the men who had lost so many years of their lives, crying and recounting their experiences, that caused Watkins to value avoiding the innocent being convicted. Watkins' objections to business as usual when he took over the District Attorney's Office in Dallas County were SUSTAINED!

In Houston, there simply have not been nearly as many DNA exonerations as in Dallas. This has been the case because Harris County's Criminal Justice System values avoiding the guilty going free; even at the cost of innocent people being convicted. Unlike in Dallas, the Houston Police Department had a policy of destroying biological samples. Moreover, the DA in Dallas took steps to make biological samples available for testing by the innocence project.

Here, the Houston Crime Lab was largely ignored and understaffed. Our Former DA Chuck Rosenthal thought scientific evidence wasn't important enough to get a reputable lab involved even after scandal was revealed in the HPD lab. Appellate Courts reversed Harris County convictions for Brady violations and prosecutorial misconduct on multiple occasions and the DA's office took no action against the prosecutors who were the alleged offenders. It is representative of a model of thinking that needs to change. Watkins' suggested approach might change values. If not, a jail cell certainly would.

In Questionable Hands

On April 22, 2009, the United States Supreme Court is set to hear oral arguments in Ricci v. DeStefano, a reverse-race discrimination case filed by white firefighters in New Haven, Connecticut. This case has the potential to reshape the hiring practices of many public employers and deal a devastating blow to advancements in the fight against discrimination.

At the center of the suit is a standardized test which was developed to determine promotions for 15 vacancies in upper management in New Haven's fire department. The city coded the test takers by race, and of the top 15 scorers, 14 were white and one was Hispanic. Because there were only 15 vacancies in the top ranks of the fire department, no blacks would be promoted. After a lengthy and racially charged debate, the city's civil service board rejected the test scores in 2004 and promoted no one. Suit was filed by the firefighters when test scores were thrown out.

The City asserted that the test had a "disparate impact on the basis of race" and was not "required by business necessity." Basically arguing the "disparate impact" theory of discrimination which was first fashioned in 1971 by the U.S. Supreme Court in Griggs v. Duke Power Company; the City prevailed and won on Summary Judgment. The firefighters appealed and the Supreme Court is now set to hear the case.

In 1971 in Griggs, the Supreme Court found that Title VII of the Civil Rights Act "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." Because of Griggs, many objections to systemic discrimination have been SUSTAINED!

The rule forbidding employment practices which have a disparate impact on minorities provides an important safeguard against systemic discrimination. Without such a rule an employer with 9000 male employees and only 900 female employees, could easily eliminate women from promotions by creating a testing procedure that only promoted the top two percent of performers. The mere disparity in numbers would eliminate or dramatically decrease the possibility that a minority would get the top spot.

Furthermore, other practices that are normally subject to a disparate impact challenge (which include written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews) could be allowed regardless of their disparate impact on minority groups. Such things could be allowed, even if they had nothing to do with one's ability to perform the job well. Imagine an employer selecting all men for promotions and then giving "they interviewed better" as an explanation.

While this will be Justice Roberts' first case dealing with the issue of race in employment, it is not his first case dealing with race. If his track record is any road map of things to come, then minorities in our country may be lost in a labyrinth of despair. In Parents Involved in Community Schools v. Seattle School District, Justice Roberts wrote the opinion of the Court when it struck down two school districts' attempts to implement plans for desegregation. Roberts used arguments that neo-conservatives have used against diversity for years. Moreover, the tone he takes in the opinion when addressing the arguments of the dissent appears to be arrogant and intolerant. Ricci presents the Court with an opportunity to dismantle Supreme Court precedent designed to shepherd large employers through discriminatory hiring practices. The disparate impact theory is an important safeguard against discrimination that needs to be protected. Having Justice Roberts as one of the guardians of our constitutional rights makes me feel very uneasy. And if he is able to secure the support of a majority of justices in the Ricci case, my uneasy feeling may soon be shared by many.

The Seattle School District opinion can be found at http://www.law.cornell.edu/supct/html/05-908.ZO.html.

No Tea...But Plenty of Party

Yesterday throughout several states people held "Tea Party Protests," allegedly inspired by the Boston Tea Party of 1773. I, for one, am usually always happy to see people opposing oppression in any form. But these were no Tea Parties.

These events differed greatly from the Boston Tea Party which eventually led to the American Revolution. The Boston Tea Party was a protest by colonists in Boston against the British government's passage of the Tea Act (an Act calling for taxation of tea, in part). On December 16, 1773, after officials in Boston refused to return three shiploads of taxed tea to Britain, a group of colonists boarded the ships and destroyed the tea by throwing it into Boston Harbor.

Colonists objected to the Tea Act for a variety of reasons, but in particular they believed that it violated their constitutional right to be taxed only by their own elected representatives. "No taxation without representation."

Unlike the Boston Tea Party, these "protests" were organized and funded by the Republican Party. The party that got our country in this mess in the first place. Furthermore, the "oppression" aspect of the protest was missing. The measures that were passed, were passed by elected officials. In fact, bailouts were started by the Republican controlled Congress and White House. So is it okay when on party does it, but not the other? Furthermore, the Bush bailouts were fashioned with no control and provided the opportunity for the rich to take advantage of government funds. Obama's bailouts are geared toward job creation and funnel money towards the people.

These "Tea Parties" were political, nothing more and nothing less. There was no action taken, no organization promised, no legal action promised, no nothing.... Moreover, Tax protesters usually take some form of action or engage in some form of civil disobedience. There was no planned legislation to ease tax burdens, no planned tax suit, no planned nothing.... These tea parties promise no legal action. I doubt they will be SUSTAINED! I am in favor of people voicing opposition to coercive government action, but don't play politics with our future.

Justice Restored: Race in Jury Selection in Harris County Texas

Recently, co-counsel (Jackie Carpenter) and I were involved in a murder trial in Harris County, Texas. During jury selection, the prosecution used seven of its ten peremptory challenges to strike all (100%) of the eligible African American jurors. We raised a Batson Challenge, which required the prosecution to come forward with "race-neutral" reasons for striking the African American prospective jurors. Once the prosecutors came forward with "race neutral" reasons, the Judge was required to determine whether or not their reasons were genuine or whether or not they were a "pretext" for discrimination. Ultimately, the Judge SUSTAINED! the objection. She had the option of seating the improperly struck jurors or striking the entire panel. She opted to strike the entire panel largely because she did not want to hold the entire panel over the lunch hour.

Nevertheless, I was surprised when it happened. The prosecutors were people I had known and respected for years. However, the next day we showed up in court to begin selecting a new jury and we learned that the prosecution had shuffled the panel. The prosecution rarely requests a shuffle. In Texas, a shuffle occurs when one party does not like the make-up of a panel and seeks to have everyone shuffled and reseated. I did not see the panel because the shuffle occurred prior to my arrival in court. But again there were several African Americans on the panel. During questioning of prospective jurors, the prosecutor singled out a few African Americans to ask questions. The entire transcript of the process will reveal that African Americans were inordinately singled out by the State. The questions were very pointed and were intended to establish cause to strike those jurors.

Furthermore, the "race neutral" reasons cited by the prosecutors seemed contrived. They were at the bench thinking of reasons why they struck the jurors. For example, they argued that they struck one African American juror for being indecisive. She said that she thought you needed both rehabilitation and punishment in the criminal justice system. This was a "race neutral" reason, but it was a pretext. Usually, the prosecution wants jurors who are "pro-punishment" because they are more likely to convict. You see, the prosecutors in our case left at least two white people on the jury who were for a criminal justice system geared toward rehabilitation. A juror who thought both were needed, from a prosecution standpoint, would be superior to one who thought the system should be geared towards rehabilitation. And another white juror, against whom they did not exercise a strike, was also indecisive in her answers to questions. Additionally, some of the reasons stated by the prosecutors were just wrong... just dead wrong. They gave reasons for some jurors that weren't true. They argued that one juror equivocated, when the juror did not equivocate.

Nevertheless, word got to our newly elected DA and she disciplined the two ADAs involved. The story made the front page of the local newspaper here in Houston.

I think for years we had overlooked a frightening truth......It had become customary by ADAs to consider race as a negative factor in jury selection. No ADA would say so for fear of being branded a racist. But many Prosectors usually set out during voir dire seeking to establish reasons/justifications to strike African American jurors if the Defendant was an African American. If some prosecutors were honest, they would admit it.

The reaction of many prosecutors and/or former prosecutors following this incident told the story. They were outraged that the DA disciplined the two prosecutors involved. Without knowing the facts, without recognizing that she was trying to change a culture, without recognizing that there are legitimate reasons minorities lack confidence in the fairness of the criminal justice system; they criticized her. In fact, this incident happened over two weeks ago and they are still criticizing her. Supprisingly, the prosecutors involved are alleged to have said that they "were surprised" when they saw that they had struck all of the Black jurors. At the bench arguing against the Batson motion and in favor of the jury with no African Americans on it, they never said they were surprised. Additionally, the race of every prospective juror is listed at the top of the jury questionaire. So when a lawyer is exercising a strike, that lawyer knows the race of the prospective juror.

I guess they would be surprised if race did not matter in jury selection. But if they looked into the pool of truth, their hearts would swim with a different result. For far too long in the Harris County District Attorney's Office, the opposite has been true. Race mattered in jury selection. Check out this video from a prosecution training session. http://www.youtube.com/watch?v=rv9SJPa_dF8

Whether or not one agrees with having African Americans on juries, Batson is the law. To quote Batson v Kentucky, 476 U.S. 79 (1986), "The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Id. at 82. Perhaps our new DA's actions may restore some of that confidence in our justice system.