Friday, December 25, 2009

David Grann's article on Todd Willingham was the "most powerful essay" of 2009

David Brooks of the New York Times says that David Grann's article on Todd Willingham was the "most powerful essay" he read all year and worthy of a Sidney Award. Read his entire article "The Sidney Awards".
Every year, I give out Sidney Awards to the best magazine essays of the year. In an age of zipless, electronic media, the idea is to celebrate (and provide online links to) long-form articles that have narrative drive and social impact.
The most powerful essay I read this year was David Grann’s “Trial by Fire” in The New Yorker. Grann investigated the case of Cameron Todd Willingham, who was executed in 2004 for murdering his three children by setting their house on fire.

In the first part of the essay, Grann lays out the evidence that led to Willingham’s conviction: the marks on the floor and walls that suggested that a fire accelerant had been splashed around; the distinct smoke patterns suggesting arson; the fact that Willingham was able to flee the house barefoot without burning his feet.

Then, in the rest of the essay, Grann raises grave doubts about that evidence. He tells the story of a few people who looked into the matter, found a miscarriage of justice and then had their arguments ignored as Willingham was put to death. Grann painstakingly describes how bogus science may have swayed the system to kill an innocent man, but at the core of the piece there are the complex relationships that grew up around a man convicted of burning his children. If you can still support the death penalty after reading this piece, you have stronger convictions than I do.

Wednesday, December 16, 2009

Book: Angel of Death Row: My Life as a Death Penalty Defense Lawyer (Hardcover)

Angel of Death Row by Andrea Lyon is going to become available in January of 2010. It is a collection of stories that complete her memoirs on a life of service as a death penalty trial attorney. While her book is not meant to be an argumentative piece for or against the death penalty, it is clear that Ms. Lyon, through her commitment to her clients and in creating The Center for Justice in Capital Cases (at DePaul University in Chicago), is an agent of change in this country for death penalty reform. There is a video interview with Andrea Lyon on Youtube.

Book Description

Nineteen times, death penalty defense lawyer Andrea D. Lyon has represented a client found guilty of capital murder. Nineteen times, she has argued for that individual’s life to be spared. Nineteen times, she has succeeded.

Dubbed the “Angel of Death Row” by the Chicago Tribune, Lyon was the first woman to serve as lead attorney in a death penalty case. Throughout her career, she has defended those accused of heinous acts and argued that, no matter their guilt or innocence, they deserved a change at redemption.

Now, for the first time, Lyon shares her story, from her early work as a Legal Aid attorney to her founding of the Center for Justice in Capital Cases. Full of courtroom drama, tragedy, and redemption, Angel of Death Row is a remarkable inside look at what drives Lyon to defend those who seem indefensible—and to win.

There was Annette who was suspected of murdering her own daughter. There was Patrick, the convicted murderer who thirsted for knowledge and shared his love of books with Lyon when she visited him in jail. There was Lonnie, whose mental illness made him nearly impossible to save until the daughter who remembered his better self spoke on his behalf. There was Deirdre, who shared Lyon’s cautious optimism that her wrongful conviction would finally be overturned, allowing her to see her grandchildren born while she was in prison. And there was Madison Hobley, the man whose name made international headlines when he was wrongfully charged with the murder of his family and sentenced to death.

These clients trusted Lyon with their stories—and their lives. Driven by an overwhelming sense of justice, fairness, and morality, she fought for them in the courtroom and in the raucous streets, staying by their sides as they struggled through real tragedy and triumphed in startling ways. Angel of Death Row is the compelling memoir of Lyon’s unusual journey and groundbreaking career.

Andrea Lyon's account of her groundbreaking career amounts to a primer on the criminal justice system and the death penalty in particular. What it reveals is often horrifying, but Andrea's writing is so infused with empathy and humor that the reader comes away both wiser to the ways of injustice and inspired by the difference one person can make. The stories of her life and her cases expose flawed humanity on all sides, as well as breathtaking largeness of heart. And make no mistake, Andrea's compassion for the victims of crime is no less than her compassion for the defendants. Angel of Death Row is timely, important, and a page-turner to the end. —Sister Helen Prejean, author of Dead Man Walking

Sunday, December 13, 2009

Exonerees, lawyers fees and innocence compensation: A personal perspective on an ugly dispute

Last week an article about an exoneree suing his attorneys was printed in several papers. At the time I knew that something was not right, that the whole story was not being printed but I had not caught up with being out of town and responded yet.

I know Jeff Blackburn, with the Innocence Project of Texas, and know him to be a very hard-working, extremely dedicated attorney. If you know me at all, you know I rarely praise attorneys as most of them are not worthy of any, but Jeff is one of the exceptions. I have known him since the '70's and he is one of the people wanting to figure out how to have Todd Willingham posthumouslyalso exonerated. Jeff spoke at our annual march in Texas this year. You can watch his speech online.

He was also the attorney for the Tulia defendants who were so royally screwed until he stepped in and took their cases and fought the powers in Tulia. Google Tulia or rent the movie "American Violet" and see for yourself, if you are not familiar with this case.

Anyhow, I wanted to share with you a post that is on the great blog, "Grits for Breakfast" that explains what I wasn't able to put into words. Heaven knows that with more attorneys like Jeff, our wrongly convicted prisoners would never have been wrongly convicted!

Gloria Rubac

I'm going to speak out of school a bit to offer a personal perspective on a dispute covered today in the Dallas News involving my former employers. I've not spoken to anyone involved about the lawsuit described below. I claim no direct line to the truth on this and only offer my own impressions.

However, I've got mixed feelings about today's media coverage over a fee dispute between one of Texas' DNA exonerees, his attorney, and the legal director of the Innocence Project of Texas. This spring I worked worked for/with both lawyers being sued - Kevin Glasheen and Jeff Blackburn - and my history with Blackburn goes back to working with him on the Tulia cases around the turn of the century. What's more, I know all of the exonerees and attorneys who are quoted in the story.. If you know nothing besides what you read in Jennifer Emily's Dallas News story ("Innocence Project counsel criticized for profiting on exonerees"), it sounds pretty bad. Here's her lede:
Jeff Blackburn has helped spring dozens of Texans from prison after they spent time behind bars for crimes they did not commit.

But even as he's carried on the public fight to free the wrongly convicted as chief counsel for Innocence Project of Texas, he's been privately profiting off of some of the exonerated by claiming a portion of the state restitution paid to them.

Accepting fees from exonerees for services not directly connected to the nonprofit Texas Innocence Project is not illegal. But at least one public watchdog group says it appears improper, and a state legislator says he may file a bill to prohibit such profiteering.
At root, this critique is based on a sentiment, most directly expressed by Rep. Rafael Anchia, that "They should be helping the exonerees on a pro bono basis." But what other clients do attorneys represent without compensation? In this case, thanks to their lawyers, clients got aggressive representation across multiple fronts that resulted in changes to state law and opened the door for multi-million dollar settlements of their federal civil rights claims. That's no small thing. Texas could, as a state, change the way we compensate lawyers in civil court, but that's a much larger question.

The whiff of scandal promoted in the story is rooted in a fallacy the writer fails to rebut: The idea that exonerees could have just filed "
a one-page document the guy could fill out himself." The fact is that Texas already had a compensation statute when Steven Phillips got out of prison, but at a much lower compensation rate. All of the fellows who hired Glasheen (some of whom, but not Phillips, for which Blackburn receives a referral fee) could have filed that same one-page document already and received compensation at a lower rate. They each had a choice under the law: Sue or accept compensation. Some did accept the compensation and didn't pay lawyers anything. Bully for them. That was their decision, but they'll receive less money overall than Mr. Philips. The only ones on the hook for attorneys fees are the ones who made a conscious choice that the previous compensation package was not enough.

Under the law for exonerees who reject the state compensation package, their other option for compensation was and is to hire a lawyer and sue.
These are straight-up, contingency style Sec. 1983 federal civil rights suits which are very expensive to litigate and perhaps even more difficult to win - plaintiffs must not just prove harm but a "pattern and practice" of abuse. Those lawsuits were settled this spring in light of Texas' new compensation bill and a portion of the bill's success may be attributed directly to leverage from Glasheen's litigation - particularly among Dallas-area reps like Anchia whose local governments could otherwise be on the hook for big civil judgments. If the bill had failed, the litigation would have gone forward, including Mr. Phillips', of that I have little doubt.

Bottom line: these exonerees are in a unique position because of a) choices they made and b) the point in history they made them. Nobody going forward will find themselves similarly situated because the law has changed.

The compensation they'll receive under the new bill, even after paying their lawyers, will be much more than exonerees would have gotten otherwise. What's more, the new bill establishes an annuity that will pay them for the rest of their lives. Nobody's hurting for money here.

It should also be said I'm 100% sure the compensation bill would not have passed this year without Kevin Glasheen and Jeff Blackburn. While Blackburn's efforts were more high-profile, Glasheen, a Republican attorney out of Lubbock, brought connections and resources to the table that I'm absolutely certain pushed the bill over the top, especially during a session when money was tight and most other innocence legislation died. He was in Austin every week lobbying with terrific success, but his incentive to do so was the fee agreement. Should he, would he, would anyone expect him to do so just out of the goodness of his heart? He didn't take these cases pro bono; this is how the man earns his living.

Ditto for Blackburn, who faced similar criticism after the Tulia cases were settled. But how can he handle expensive, longshot innocence cases if he must earn his living hustling for DWI clients in Amarillo? I've watched Blackburn put tens of thousands in legal expenses on his own credit cards in possible-innocence cases, sometimes without getting it back. If we're going to blame Jeff when makes money, he should also get credit for putting in a lot more of his own money and pro bono time to help innocent clients post-conviction than most attorneys I know.

Another thing not mentioned in the story: Glasheen gave significant monetary advances to exonerees to help them pay bills while the litigation and legislation was pending - in some cases fairly significant amounts. Nobody had any complaints when they approached him seeking cash, one notices, and if the bill and litigation both failed, he'd be out that money. I'm just sayin'.

So while I understand why Phillips and perhaps others chafe at the notion, personally I don't begrudge the attorneys involved being paid. Professional-level services are not free, and otherwise the work wouldn't get done.

At the end of the day, Blackburn, Glasheen, and these exonerees together along with Anchia, Rodney Ellis, Robert Duncan and others at the Lege achieved something amazing with the passage of this bill. Exonerees in the past were compensated much less, and in a couple of instances wound up destitute and homeless a few short years after getting the money. Even after attorneys fees, these guys will get more than they otherwise would have, including a lifetime annuity.
The fight for better statutory compensation - fought by the exonerees through their own efforts and their attorneys - both earned more for them and paved the way for improved justice for others in the future.. Henceforth, it's true: Nobody need hire an attorney and exonerees can just file that one-page document. But that's a fight recently won, not a fait accompli that would have happened without these attorneys' effort.

Political and legal fights over public policy are messy beasts and seldom free from self-interest. This one was successful, so it's a shame to see victors feuding over the spoils. I'm sad that it's happening and wish everyone involved the best.

Tuesday, December 01, 2009

‎Holiday Card Signing Party for Death-Row Inmates‎

Wednesday, December 3 at 7PM
At UT in Parlin, Room 302

Death Row is a horrible place. Prisoners are kept in their cells 23
hours of the day without group recreation, education programs, or
adequate food. This holiday season, the Campaign to End the Death
Penalty is trying to bring a little bit of joy to an otherwise bleak
and miserable place. Join us as we send holiday cards to death row
inmates and their families in an attempt to remind them that we are
fighting on the outside to save their lives, and we will not rest
until we have abolition!

CEDP members will be bringing some light refreshments. Feel free to bring treats to share.

Monday, November 30, 2009

Memoir: MOTHER CALIFORNIA: A Story of Redemption Behind Bars

If you are interested in what really happens inside prison or just want to experience a great memoir, MOTHER CALIFORNIA: A Story of Redemption Behind Bars, by Kenneth E. Hartman, is the book to read.

Kenneth E. Hartman has served 30 continuous years in the California Department of Corrections and Rehabilitation on a life without the possibility of parole sentence. An award-winning writer and prison reform activist, he helped establish the Honor Program at the California State Prison – Los Angeles County. He is currently leading grassroots campaigns to end life without parole sentences, to bring higher education back into the prison system, and to provide opportunities for prisoners to perform good works for the free world.

“In this memoir, a magnificent inquiry into the human condition, a man serving a life sentence in the California prison system documents the brutality and inhumanity of life “inside,” where criminals are victimized rather than rehabilitated, and chaos flowers among the despairing. Hartman, an eloquent, middle-aged prisoner convicted of murder at 19, tells a sad but unsentimental story: a rough childhood and a wish for invincibility fueled Hartman’s youth and downfall, but in the time since, he has married in prison, fathered a child, and currently works to improve the broken U.S. prison system. Hartman discovered his talent in a writing class, after having abandoned drugs; using it, he examines up close the “mad, violent circus” of prison life, his place in it, and the fate of his fellow prisoners: “Under the big tent of this brutally unnatural environment, few of us ever take the frightening step of analyzing our deeper motives.” Publishers Weekly, 11/10/09

“An illuminating, unflinching, self-portrait of a life behind bars. A snapshot of who we are as a society through the gritty prism of ‘how we punish those we throw away.’ If Charles Bukowski had committed murder and done time, this is what he would have written. Raw. Searing. Brutal. Written without self-pity. Regardless of your politics, you will read the last page of Mother California, close this book, and walk away transformed.” Erik Jensen co-author (with Jessica Blank) of the stage play and film The Exonerated, the play Aftermath and the memoir Living Justice: Love Freedom and the Making of The Exonerated

Video from Death Row: Possibly Retarded Prisoner Faces Execution

Renée Feltz of the Texas Observer has the following article and video interview on the case of mentally retarded death-row inmate Bobby Woods. Woods is scheduled to be executed next Wednesday.

When Texas reopens its execution chamber after a Thanksgiving break, the first man set to die may be mentally retarded. A 2002 Supreme Court ruling bans the execution of mentally retarded prisoners. But after years of being represented by a discredited attorney who ruined any chance for an appeal based on his disabilities, the fate of Bobby Wayne Woods rests with the state Board of Pardons and Paroles which can recommend clemency or a reprieve to Gov. Perry. "It's a long shot at best," Woods' attorney Maurie Levin says of the clemency request, "but I think it's very important to do."

Test scores during his childhood and incarceration show Bobby Woods has an IQ that hovers at or below 70 — the cut-off point for mental retardation. He reads at a second grade level and writes childlike letters — many of which are photocopied and presented as evidence in his clemency request. Levin asked the board to grant a 60-day reprieve so that she can produce a videotape of Woods "to adequately present a full picture of his limitations." She has sued Texas prison officials over their refusal to allow her to record such a video herself. The Texas Observer captured Woods on tape last week during an on-camera interview, and now you can watch the video that Levin wants the clemency board to see.

Bobby Woods Describes Where He Grew Up

Woods was sentenced to die in 1998 for kidnapping, raping and murdering 11-year-old Sarah Patterson. He disputes his guilt, saying his cousin is responsible for cutting Patterson's throat. But the cousin committed suicide the week following Woods' arrest. Levin acknowledges "the facts of this crime are very difficult," but she notes the ban on executing the mentally retarded applies no matter how heinous the offense. Levin and students with the Capital Punishment Center at the University of Texas Law School began working on Woods' case just before he was scheduled to be executed in October 2008. Their efforts followed years of cringe-worthy legal representation by Richard Alley, one of just two attorneys the Texas Court of Criminal Appeals has removed from its list of lawyers qualified to represent death row prisoners in their appeals. He visited Woods only once during the nearly 10 years he represented him.

"For the state of Texas to appoint a lawyer who they then removed from the list — who was being taken to task in a federal court at the very same time he's being appointed to represent Bobby in his federal proceedings, and then for Bobby — a mentally retarded man — to suffer the consequences of that appointment is atrocious. It infuriates me," Levin says.

Alley had a habit of recycling direct appeal claims in his state capital habeas cases. While he raised 28 issues in Woods' state habeas appeals, just two were actually new and neither was backed by useful evidence. In contrast, Levin and her students were able to contact family members who described how Woods was a slow child who suffered from learning disabilities and was called "retard" by his classmates, and "always needed to live with someone who could take care of him" when he was older. Their investigations revealed that while Woods had held a steady job as a short-order cook at Waffle House, he had to have the orders read aloud to him.

Alley did file an appeal claiming Woods was mentally retarded, but it was poorly put together and the court rejected it. Levin won a rare second chance to present new evidence in October 2008, but she was unable to reach a higher bar set by the court because it was his second time making the appeal. This second appeal had to overcome the previous legal record established on almost no investigation of Woods' mental capacity.

Levin could not claim that Woods suffered from ineffective assistance of counsel either. While a Texas statute guarantees Woods an attorney to file his habeas appeals, it doesn't require him to be competent. So Woods remains scheduled to be executed on Dec. 3 pending a decision by the Board to recommend that Perry have mercy and grant him clemency or a reprieve. Below are additional videos that may be used in evidence. Woods has reached the end of the legal process. His only opportunity now resides with Perry and the parole board.
Bobby Woods Describes His Previous Jobs

Bobby Woods Describes His Reading and Writing Abilities

Saturday, November 28, 2009

Texas's highest criminal court harrassing anti-death penalty lawyers

By Mary Alice Robbins, Texas Lawyer
November 25, 2009

CCA Show Cause Order Directs Lawyers to Explain Untimely Filing

Two years ago, David Dow and the Texas Defender Service were embroiled in a controversy after a thwarted last-minute attempt to file pleadings for a death-row inmate. Now Dow and Katherine Black, his TDS co-counsel in a different death penalty case, have been ordered to appear before the Court of Criminal Appeals to explain an “untimely filing,” and they face possible sanctions under one of the CCA’s rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and Black, a TDS staff attorney, to appear before the court for a Dec. 2 hearing to show cause for the untimely filed documents in Ex Parte Simpson. Dow and Black work in the Houston office of TDS, a nonprofit organization that seeks to improve the representation of death-row inmates.

As noted in the CCA’s order, Sharon Keller, the court’s presiding judge, did not participate in Simpson and is not participating in the court’s show cause hearing for Dow and Black.

Keller faces ethics charges filed by the State Commission on Judicial Conduct in connection with her statement that the CCA clerk’s office would close at 5 p.m. on Sept. 25, 2007. TDS had sought to file a stay of execution and writ of prohibition in Michael Richard’s case that day after the clerk’s office’s normal business hours. Dow represented Richard, whom the state executed later that day. Keller denies the commission’s allegations; she has contended she did nothing wrong and only responded to an inquiry as to whether the CCA clerk’s office would remain open past 5 p.m., which was merely an administrative matter. [“See Tough Fight at Sharon Keller’s Ethics Hearing,” Texas Lawyer, Aug. 24, 2009, page 1.]

According to the CCA’s order in In Re Dow and Black, the two TDS attorneys filed a subsequent application for a writ of habeas corpus and a motion to stay the Nov. 18 execution of Danielle Simpson in the 3rd District Court in Anderson County at 4:08 p.m. Nov. 17. Under the CCA’s Miscellaneous Rule 08-101, adopted June 23, 2008, any motion relating to a death sentence is deemed untimely if filed less than 48 hours before 6 p.m. on the scheduled execution date. The rule requires an attorney who seeks to file an untimely motion meant to stop an execution to “attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally or factually impossible to file a timely request or motion.”

Under the CCA’s rule, an attorney who fails to attach a sworn, detailed explanation to an untimely filing or who fails to adequately justify the necessity for the untimely filing shall be sanctioned. As noted in the rule, such sanctions can include, but are not limited to, referral to the State Bar of Texas chief disciplinary counsel, contempt of court, removal from the list of attorneys eligible to be appointed to represent death-row inmates in filing habeas corpus writ applications or restitution of costs incurred by the opposing party.

When asked about the CCA’s order, Dow says, “I’m not interested in talking about it.” Black did not return three telephone calls seeking comment by presstime Nov. 25.

Reasons for Rule

CCA Judge Paul Womack, chairman of the court’s rules committee, says, “The rule was adopted to ensure that the court would have sufficient time to consider and decide motions in these cases, while recognizing that in rare instances there might be a need for a filing less than 48 hours before a scheduled execution date.”

Womack says the court saw a need to reduce to a minimum the number of last-minute filings in death penalty cases.

Sian Schilhab, the CCA’s general counsel, says the court enacted the rule because the court has had people who filed anything they thought would keep a case going.

CCA Judge Cathy Cochran, a member of the court’s rules committee and its immediate past chairwoman, says the court will review pleadings, no matter what time they come in. The “trade-off,” Cochran says, is the court will look at whether the attorney has done everything he should to file a document in time to meet the 48-hour requirement. That’s the reason the rule requires an attorney to file a certificate of compliance, or statement, explaining why physically he could not have discovered the claim, investigated it and filed the pleading before he did, Cochran says.

Cochran says the CCA patterned its rule after a 5th U.S. Circuit Court of Appeals rule.

Rule 8.10 of the 5th Circuit’s Rules and Internal Operating Procedures sets a five-day deadline prior to a scheduled execution for attorneys to file for a certificate of appealability, permission to file a successive habeas writ petition or an appeal from a district court judgment. Like the CCA’s Miscellaneous Rule 08-101, the 5th Circuit rule requires an attorney to attach to an untimely filing a detailed explanation stating under oath the reason for the delay, authorizes the court to direct an attorney to show good cause for a late filing and provides for sanctions if an attorney cannot justify the delay.

Simpson’s Application for Postconviction Writ of Habeas Corpus, which is signed by Dow and which lists Dow and Black as his attorneys, raised a Batson v. Kentucky claim, based on the U.S. Supreme Court’s 2005 decision in Miller-El v. Dretke, regarding the state’s exercise of peremptory challenges to eliminate two black potential jurors from Simpson’s trial. Under Miller-El, the application says, courts reviewing Batson challenges must examine whether the state engaged in disparate questioning of black and white jurors to determine whether a juror was challenged for a race-neutral reason. As alleged in Simpson’s application, the CCA’s unpublished April 29 decision in Ex Parte Williams recognized that “the Supreme Court’s decision in Miller-El has the practical effect of modifying the underlying constitutional right recognized in Batson.”

In a Nov. 18 opinion, the CCA dismissed the application in Ex Parte Simpson, finding that it failed to satisfy the requirements of Texas Code of Criminal Procedure Article 11.071 §5. The statutory provision provides in relevant part that a court may not grant relief based on a subsequent application for writ of habeas corpus unless it contains sufficient facts to establish that the claims and issues could not have been presented in a previous writ application.

According to the CCA’s opinion, the court also denied Simpson’s motion for stay of execution. The Texas Department of Criminal Justice Web site shows the state executed Simpson on Nov. 18 for the 2000 murder of an 84-year-old woman.

Dow wrote in a three-page sworn statement attached to Simpson’s application that he worked pro bono for Simpson, who first contacted Dow in May. As noted in the statement, TDS did not obtain Simpson’s file until Nov. 6, when Simpson retained Dow as his counsel. Dow wrote that TDS initially focused on Simpson’s claims under the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, which prohibits the execution of mentally retarded persons. However, Dow noted in the statement that TDS determined Nov. 15 that Simpson’s Batson claim appeared to be affected by the Supreme Court’s Miller-El decision and the CCA’s Williams decision and began preparing the habeas corpus writ application.

But, as Dow pointed out in the statement, “lawyers in our office were simultaneously assisting lawyers representing” death-row inmate Gerald Eldridge, whose execution date was set for Nov. 17. U.S. District Judge Lee Rosenthal granted Eldridge a 90-day stay of execution on Nov. 17 to determine whether he is mentally competent to be executed.

“The demands imposed by Mr. Eldridge’s case, coupled with the demands imposed by the other work we had undertaken on Mr. Simpson’s behalf, simply made it impossible for us to get the Batson/Miller-El claim completed forty-eight hours in advance of the execution,” Dow wrote in the statement.

However, Cochran says the CCA is not totally satisfied with that explanation.

“We want a better explanation,” Cochran says. “That’s why we’ve invited the lawyers to come up and explain that.”

The Court of Criminals Appeals’ order directing Dow and Black to appear before the court and show cause for the untimely filings in Simpson is only the second such order that the CCA has issued since adopting its June 2008 rule. In a Nov. 28, 2008, order, the CCA directed K.S. “Gator” Dunn of the Dunn Law Firm in Conroe to appear at a Jan. 14, hearing to show cause why he filed an untimely subsequent habeas corpus writ application for death-row inmate Eric Cathey. Schilhab says the CCA did not sanction Dunn, who declines comment.

As noted in the CCA’s order, while Dow filed an explanation for the untimely filing, Black neither signed Dow’s explanation nor filed her own explanation.

Criminal defense attorney David Botsford, who reviewed the CCA’s Miscellaneous Rule 08-101, says that while one could interpret the rule to require each counsel who signs on a pleading to file an explanation if the pleading does not meet the 48-hour filing requirement, “[t]he rule doesn’t specifically say each counsel who signs on a pleading has to do that.”

Botsford, a partner in Austin’s Botsford & Roark, who represents death-row inmates in habeas corpus writ applications, also notes that an attorney who gets involved Nov. 6 in the case of an inmate scheduled for execution Nov. 18 would have only 10 days under the CCA’s rule to file the pleadings.

“That’s not a significant amount of time,” he says.

Botsford says he is sympathetic with attorneys who are willing to represent death-row inmates pro bono.

“We don’t want to throw up legal impediments to people doing that,” he says.

Anderson County Criminal District Attorney Doug Lowe, who prosecuted Simpson, says he believes the rule is justified.

Speaking generally, Lowe says, he think the purpose of the rule is to stop “last-second, last-ditch filing.”

Lowe says that as a local prosecutor, he sees what happens to the crime victims’ survivors — who are themselves victims — waiting for the execution of the person who murdered their loved one.

“When you’ve got victims sitting down there waiting, it’s just tortuous,” he says.

Wednesday, November 25, 2009

Saudis Urged to Reverse Death Sentence on ‘Witchcraft'

A human-rights organization says the Saudi authorities are arbitrarily executing people for witchcraft.

Saudi Arabia is being urged by Human Rights Watch to stop meting out the death penalty for alleged witchcraft.

Human Rights Watch (HRW) is calling on Riyadh to cease applying capital punishment, to codify its criminal laws and update the criminal procedure law.

“Saudi judges have harshly punished confessed ‘witches’ for what at worst appears to be fraud, but may well be harmless acts,” the rights group said. “Saudi judges should not have the power to end lives of persons at all, let alone those who have not physically harmed others.”

“There is no legal interpretation of these terms, and that’s part of the problem,” Sarah Leah Whitson, Middle East director at Human Rights Watch told The Media Line. “Judges arbitrarily describe conduct – such as possession of an Amharic text - as ‘sorcery’ or ‘witchcraft.”

“What’s disturbing is that here in the 21st century, the Saudi government is still regularly prosecuting people for outdated, backwards concepts of ‘witchcraft’,” she said.

Hady Amr, director of the Brookings Doha Center and a fellow at the Saban Center for Middle East Policy said the severe punishments were a derivative of the strict form of religion practiced in the kingdom.

“Islam in general, and particularly the conservative brand of Islam practiced in Saudi Arabia and throughout the Gulf, does not accept any other supernatural forces other than the individual and society’s relationship with God,” he told The Media Line. “Anything that contravenes that is seen as blasphemy and against the will of God, so by severely punishing those practicing witchcraft, they are doing God’s will.”

Saudi has convicted several people in the kingdom over the past few years for practicing witchcraft or sorcery.

On November 9, Ali Sabat was sentenced to death by a Medina court for witchcraft.

The sentence was based on advice and predictions that Sibat gave on Lebanese television. The Saudi religious police arrested at least two other people on counts of witchcraft in the past month, according to local media reports.

Sibat was arrested in May 2008 in a hotel in Medina, where he was carrying out a pilgrimage before returning to his native Lebanon.

Local media report that the only evidence against him is the divinations and life advice he gave on a Lebanese satellite television station.

Other cases reveal a zero-tolerance policy towards what the Saudi authorities perceive as witchcraft.

Mustafa Ibrahim, an Egyptian pharmacist working in Saudi Arabia, was executed in November 2007 for sorcery in Riyadh. He was found guilty for trying to separate a married couple “through sorcery,” the Ministry of Interior said.

A court in Jeddah tried a Saudi man this month, after he was arrested for smuggling a book of witchcraft into the kingdom.

In a separate case reported by a local Saudi paper, the religious police in Taif arrested an Asian man for “sorcery” and “charlatanry” and accused him of trying to use supernatural powers to solve marital disputes and induce people to fall in love.

Saudi citizen Fawza Falih was sentenced to death for witchcraft in 2006 after a “discretionary” conviction. HRW protested the sentence in 2008, but the Minister of Justice Abdallah Al A-Sheikh responded that the organization had “preconceived Western notions of Sharia (Islamic Law),” and did not answer questions about the judicial process.

According to HRW, after it approached a high-ranking official at the Ministry of Justice in 2008 to define the crime of witchcraft and its associated evidence, “the official confirmed that no legal definition exists and could not clarify what evidence has probative value in witchcraft trials. Saudi Arabia has no penal code and in almost all cases gives judges the discretion to define acts they deem criminal and to set attendant punishments.”

HRW responded by saying that “Saudi judges should overturn witchcraft convictions and free those arrested or convicted for witchcraft-related crimes. King Abdullah should urgently order the codification of Saudi criminal laws and ensure it comports with international human rights standards.”

Whitson elaborated that HRW “are documenting the cases brought against people on these absurd grounds, seeking media attention to the disturbing practice, and urging the Saudi government to rein in its judges and pass a new penal code that defines once and for all what constitutes a crime in Saudi Arabia,”

Wajeha Al-Huwaidar, a Saudi rights activist and a member of HRW’s advisory committee said it seems as though the Saudis are living in the Dark Ages.

“Witchcraft was considered a big crime [in the past] and many people got burned alive or tortured to death for practicing witchcraft,” she told The Media Line.

“In the Saudi case, witchcraft has deep roots in the Islamic religion. Most Saudis believe that those who have this "magic" power are able to destroy families and cause diseases to others and even death,” she elaborated. “These beliefs made people feel witchcraft was a horrible crime and whoever committed it should be locked out or killed. Witchcraft is a common practice among ignorant and poor people all over the Islamic world but only Saudi Arabia punishes them in a very brutal way.”

Source: The Media Line, Nov. 25, 2009

Monday, November 23, 2009

Governor Perry Continues to Play Politics with Death Penalty Issue By Refusing to Accept Recommendation of BPP for Clemency for Robert Thompson

"Rick Perry continues to play politics with the death penalty. He should have accepted the recommendation of the Texas Board of Pardons and Paroles to commute the death sentence of Robert Thompson. It would not surprise me if Rick Perry one day replaces the members of the Texas Board of Pardons and Paroles who voted in favor of clemency for Thompson, just like he replaced his own appointees on the Texas Forensic Science Commission in the midst of their investigation into the Todd Willingham case. Rick Perry is using the death penalty issue to endear himself to right-wing voters in the upcoming Republican primary, but his actions do not reflect the priorities of mainstream Texans who are increasingly concerned about the fairness of the Texas death penalty system"

Cobb continued, "In an Orwellian application of language repurposing, Governor Rick Perry and many of his supporters would like the public to believe that people sentenced to death under the Law of Parties are "killers", but a "killer" is "one who kills", not "one whose accomplice killed". People such as Jeff Wood and Kenneth Foster, Jr, are not killers. They never killed anyone and in a fair system of justice, they should never have received death sentences".

There is widespread support in Texas for ending the practice of sentencing people to death under the law of parties. In the last session of the Texas Legislature, the Texas House of Representatives passed a bill (HB 2267 by Terri Hodge) that would have banned executions of people convicted solely under the Law of Parties. The Law of Parties provision of HB 2267 was taken out of the bill in the Senate Criminal Justice Committee after Governor Perry threatened to veto it if the bill was sent to him in the same form that it had passed the House. The revised version, which would have only required separate trials for co-defendants in capital trials, then died in the Senate when it did not come up for a vote on the floor before the deadline.

Two family members of a person on death row who was sentenced to death under the Law of Parties issued statements regarding Rick Perry's refusal to accept the recommendation of clemency for Robert Thompson. Jeff Wood remains on death row in Texas after receiving a stay in 2008 from a federal judge.

Terri Been, whose brother Jeff Wood is on Texas death row convicted under the Law of Parties said "I must say that I was surprised to hear that the Texas Board of Pardons and Paroles grew a conscious and voted in favor of clemency for Robert Thompson, since they unanimously voted for the execution of my brother, Jeff Wood, who was also convicted under the law of parties despite the fact that he is factually innocent of murder. However, I was not surprised to hear Perry didn’t jump on board the clemency train as the man has no sense of true justice. After all, it was Perry who killed House Bill 2267, which would have ended the death penalty as a sentencing option for those who never committed murder. It is a very sad day, and I grieve not only for Robert Thompson, his family and for the family of the victim killed by Thompson's accomplice, but I grieve for the lack of hope that I feel because of Governor Perry’s latest decision. To kill is wrong, but to kill someone who was not convicted of actually killing anyone is INJUSTICE in the simplest form".

Gavin Been, nephew of Jeff Wood and president of Kids Against the Death Penalty said, "KADP members mourn for Robert Thompson and for the injustice taking place in Texas today. Governor Perry strikes again by condemning another person to death who is factually innocent of murder, and we are appalled that our fellow citizens continue to turn a blind eye to Perry’s mismanagement of power. We know that Texans favor “tough on crime” laws, but we were taught that laws and punishment were supposed to be equal and fair. How is it fair that people like, Jeff Wood, or in this case Robert Thompson, who are factually innocent of murder, should face execution while there are REPEAT offenders of murder and rape in general population, who have the right to be paroled, and are given a second chance? To sentence a person to death who never committed a murder is NOT justice; it is murder itself, and Mr. Perry should be ashamed of himself for allowing another murder to take place".

Wednesday, November 18, 2009

Attorneys File motion Asking Court of Criminal Appeals Judge Sharon Keller be recused from any participation in Stay Request of Danielle Simpson

From the Palestine Texas Herald Press:
Late Tuesday afternoon, Simpson's attorneys David R. Dow and Katherine C. Black filed a postconviction writ of habeas corpus; a motion for a stay of execution; and a motion asking Court of Criminal Appeals Judge Sharon Keller be recused from any participation in the case.

Dow and Black are attorneys for the Texas Defender Service and their motion on Simpson's behalf alleges the judge "has made disparaging statements about TDS" in the past, which they say compromises "her ability to rule impartially in a case involving a party represented by the TDS."
From the Houston Chronicle:
A condemned prisoner who volunteered for execution but in recent weeks changed his mind hoped a court would spare him from a trip to the Texas death chamber Wednesday evening.

Danielle Simpson, 30, was set to die for the abduction-slaying of an 84-year-old east Texas woman who was weighted down with a cinder block and thrown into a river.
Simpson this year won approval from a federal court that he was competent to decide to drop his appeals. Then he reversed himself and allowed lawyers to try to save him from lethal injection.

He'd be the 22nd Texas prisoner to die this year.

Simpson told The Associated Press earlier this month from death row he was innocent, it wasn't his choice to volunteer for execution and Texas prisons were "pitiful."

He was condemned for the murder of Geraldine Davidson, a former school teacher and church organist abducted nearly 10 years ago during a burglary of her home in Palestine, about 100 miles southeast of Dallas.

Attorneys representing him argued to the federal courts Simpson is mentally impaired, incapable of deciding whether to drop his appeals and offered his repeated reversals as proof.

They also wanted permission to appeal a lower court's determination that Simpson is not mentally impaired and challenged the elimination of two black people from consideration to serve on Simpson's trial jury. Simpson is black. There were no blacks on the jury that convicted him and decided he should be put to death.
Simpson earlier sent a federal court a handwritten motion in which he said he was "tired of being in a institution that's unjust, degrading, and corrupted" and was ready to die.

A federal judge found Simpson had "a mental disease, disorder or defect" but was able to understand his legal position and competent to choose to die.

Don't let Texas execute someone without the Governor receiving phone calls or emails protesting the execution. In the past, we have done public information requests and discovered that for some executions, very few people call to protest, so it is important to call every time. They keep a tally. Call the Governor and leave a voice message at 512 463 1782 or email him through his website at

Members of various groups, including Texas Moratorium Network, Students Against the Death Penalty, Campaign to the End the Death Penalty, Kids Against the Death Penalty and the Texas Death Penalty Abolition Movement participate in vigils and protests on the day of each execution in Texas. The protests are held in various cities, including Huntsville and Austin. The protest in Austin is at 5:30 pm on the sidewalk in front of the Texas Capitol facing Congress Avenue at 11th Street.

Breaking News: Board of Pardons and Paroles Recommends that Governor Perry Commutes Death Sentence of Robert Thompson

Call the Governor and leave a voice message at 512 463 1782 or email him through his website at Urge him to accept the recommendation of the Texas Board of Pardons and Paroles to grant Robert Thompson clemency and commute his sentence to life. The execution is currently scheduled for Thursday, November 19.

From the Houston Chronicle:

The state pardons board today recommended that Houston killer Robert Thompson's scheduled Thursday execution be commuted to life in prison after his lawyer successfully argued that he was not the triggerman in a December 1996 convenience store robbery-murder.

Gov. Rick Perry, who has only once in his tenure as chief executive voluntarily commuted a death sentence, was expected to rule on the case tonight or tomorrow.

“I'm too scared to be optimistic,” said Thompson's attorney Pat McCann, “but Perry has been receptive to law of parties cases.”

Thompson was sentenced to death in a law of parties case stemming from the slaying of Mansoor Rahim in a Dec. 5, 1996, robbery of a Braeswood Boulevard convenience store. Thompson's partner in the crime, Sammy Butler, fired the fatal shot, but was sentenced only to life in prison.

Under the state's law of parties, all participants in a crime are held fully responsible and can be assessed the death penalty.

Perry's office did not immediately respond to queries about when the governor might decide the case, but McCann said the governor's legal counsel advised him a decision likely would come tonight or tomorrow.

Tuesday, November 17, 2009

Three Executions in Three Days in Texas, Starting Today

Texas is set to execute three people in three days starting today, November 17.

The first is Gerald Cornelius Eldridge, who is mentally ill and has an IQ of 72. Eldridge, 45, was sentenced to death for the 1993 shooting deaths of his former girlfriend, Cynthia Bogany and her nine-year old daughter Chirissa in Houston.

The second is a man named Danielle Simpson, sentenced to death for the murder of 84-year old Geraldine Davidson.

On Thursday, Robert Thompson is scheduled for execution. He was convicted and sentenced to death under the Law of Parties, even though it was his accomplice who fired the bullet that killed the victim. The accomplice was sentenced to life.

Call Governor Perry at 512 463 1782 to protest these executions or contact Perry by email through his website.

Members of various groups, including Texas Moratorium Network, Students Against the Death Penalty, Campaign to the End the Death Penalty, Kids Against the Death Penalty and the Texas Death Penalty Abolition Movement participate in vigils and protests on the day of each execution in Texas. The protests are held in various cities, including Huntsville and Austin. The protest in Austin is at 5:30 pm on the sidewalk in front of the Texas Capitol facing Congress Avenue at 11th Street.

Monday, November 16, 2009

Pending U.S. Executions



17th ~ Larry Bill Elliott (Virginia)

17th ~ Gerald Eldridge (Texas)

18th ~ Danielle Simpson (Texas) - Volunteer

19th ~ Robert Thompson (Texas)

2nd ~ Cecil Johnson, Jr. ( Tennessee)

3rd ~ Bobby Woods (Texas)

8th ~ Kenneth Biros (Ohio) STAY RECEIVED!!!
Kenneth Biros receives an indefinite stay from the U.S. District Court. Mr Biros was scheduled for execution on December 8, 2009 for the death of Tami Engstrom from Hubbard. Mr. Biros was previously issued a U.S. court stay from his March 20, 2007 execution date.

9th ~ Devin Banks (Tennessee)

11th ~ Eric Wrinkles (Indiana)



7th ~ Vernon Smith (Ohio) - FKA - Abdullah Sharif Kaazim Mahdi

7th ~ Gerald Bordelon (Louisiana) Volunteer
The Governor
Louisiana Governor Mike Foster
PO Box 94004
Baton Rouge, LA
70804 USA
Phone: (225) 342-7015
Fax: (225) 342-7099

12th ~ Gary Johnson (Texas)

14th ~ Julius Young (Oklahoma)

4th ~ Mark Brown (Ohio)

24th ~ Hank Skinner ( Texas)

2nd ~ Michael Sigala (Texas)

9th ~ Lawrence Reynolds (Ohio)

30th ~ Franklin Alix ( Texas)

20th ~ Daryl Durr (Ohio)

13th ~ Michael Beuke (Ohio)

10th ~ Richard Nields (Ohio)

Sunday, November 15, 2009

If You Hire an Attorney, You Won't be Sentenced to Death

If you hire a lawyer, the chances are you won't be sentenced to death in Houston.
University of Denver Criminologist Scott Phillips reviewed 504 capital indictments over three decades in Harris County, Texas, and found that defendants who hired lawyers for the entire trial were never sentenced to death -- and were more likely to be acquitted.

The results of his study, published over the summer in the Journal of Criminal Law & Criminology, are truly stunning. Since nearly all defendants facing the death penalty in Harris County were poor, Phillips argues that his results further demonstrate the arbitrariness of capital punishment. If a defendant's family and community is able to pool resources to hire an attorney, the paid attorney might be better equipped to investigate a case or to bring bargaining power to the table against a district attorney.

He makes clear that his findings aren't an indictment of appointed attorneys, but of the system that straddles those attorneys with thin resources in a death penalty case. Something clearly went wrong for results this drastic.

Phillips also came up with some significant findings on race and capital punishment, which he published in the American Constitution Society's journal, Advance.

Phillips found that the race of a defendant played a significant role in whether he or she was charged with death. This is no surprise to people following capital punishment issues, of course, but Phillips makes some interesting recommendations for prosecutors' offices to avoid this disparity. He praises the Harris DA's office for eliminating the race of a defendant from the memo used to determine whether to seek the death penalty. Other markers, however, still indicate race and play a role in the decision, he says.

Phillips suggests that prosecutors' offices go further than just removing race -- they need to "be vigilant" and remove victim information, neighborhoods, school names and other possible identifiers. This is a commendable -- but unrealistic -- idea.

Phillips' research is important, but I believe it further proves that the death penalty is cruel and unusual. I don't think it's possible to remove the arbitrariness of race, socioeconomic background or myriad other factors that lead the most vulnerable to our death row. Abolishing capital punishment is the only way to address the inherent injustice in the system.

Thursday, November 12, 2009


June 29 through July 2, 2010

17th Annual Fast & Vigil

to Abolish the Death Penalty

at the U.S. Supreme Court

in Washington, DC

Read the who, what, when, where, why and how of this important annual abolitionist event by visiting our website.

The four-day Fast & Vigil takes place on the sidewalk in front of the U.S. Supreme Court, considered by many to be the heart of the legalized killing machines in this country.

This is a great experience and training ground for people who want to practice, or become very adept, at talking about the death penalty. Tens of thousands of tourists, from all over the U.S. and throughout the world, pass by our vigil and table, so the opportunity for dialogue and discussion at a real grass-roots level is invaluable to the movement.

In addition to the strong public witness, this is an excellent opportunity to meet other abolitionists and to "recharge your batteries" while engaging in public outreach and maintaining a physical presence at the Court.

As always, the liquid-only fast is optional, although many do participate and build community around it. This year, the small voluntary registration fee of $20 also includes a free t-shirt and a stainless steel water bottle. Housing within walking distance of the Court is provided at little or no cost. And since this event is a fast, meals are cheap! The only cost to participants is travel to Washington, DC. And even that can be covered by getting your own local sponsors through the pledge sheet on the website.

Please contact us to register, sponsor, or find out more.

The Abolitionist Action Committee can be reached at 800-973-6548 or

The Abolitionist Action Committee (AAC) has held a four day vigil at the Supreme Court every summer since 1993, from the dates of June 29 to July 2, to mark two very important court decisions about the death penalty. The AAC is an ad-hoc group of individuals committed to highly visible and effective public education for alternatives to the death penalty through non-violent direct action. Visit them online at

Wednesday, November 11, 2009

Viewpoint: Postponed justice

"Postponed Justice" is the title of Jillian Sheridan's editorial in the Daily Texan.

The Texas Senate Committee on Criminal Justice held a hearing yesterday to talk with the Texas Forensic Science Commission’s new chairman, John Bradley. They discussed, among other things, whether or not Bradley is serving as a political pawn for Gov. Rick Perry and whether Bradley plans to resurrect the commission’s controversial investigation into the science used to convict and execute Cameron Todd Willingham.

Perry appointed Bradley to the commission this fall, abruptly replacing his former appointees two days before the commission was set to hear a report from nationally recognized arson expert Craig Beyler. Austin criminal defense attorney Sam Bassett, the forensic science commission’s former chairman, says the commission has paid Beyler approximately $30,000 to review the science used in Willingham’s case, according to the publication Texas Lawyer. Beyler had determined that science was used inappropriately to reach a conviction.

Bradley promptly canceled the hearing, indefinitely postponing the commission’s conclusion on the Willingham case.

Not surprisingly, senators questioned whether Perry is using Bradley to postpone action on the Willigham case, likely until after the March 2010 gubernatorial primary.

Bradley’s response: “I don’t see myself as being someone else’s political pawn. And I don’t think you’ve ever seen that I behaved that way.”

Yet Bradley is in no hurry to hear from Beyler or to focus his commission on the controversy, though he does promise to take it up again some time in the future. Instead, he is calling those who want to move the investigation forward agenda pushers.

In a Dallas Observer editorial, Bradley wrote, “Those with agendas other than the advancement of forensic science have made exaggerated claims and drawn premature conclusions about the case. The commission can only ask that the public be patient and permit the commission to apply a disciplined, scientific approach to the investigation. That kind of work takes time, careful deliberation and is not likely to result in a simplistic report.”

But the commission had already dedicated years, and tens of thousands of dollars, to conducting an in-depth investigation. Apparently, Bradley is ready to throw out its efforts.
The former commission was ready to wrap up the Willingham case. Bassett told Texas Lawyer that before he was replaced, he had asked the governor’s office to allow him to remain on the commission for another two-year term. “I wanted to finish the work we started,” he said.

But political machinations are now suppressing that work and the case. Bradley has announced that his first priority will be establishing clear policies and procedures and that he may call a meeting to address housekeeping matters in January.

But the commission is unlikely to come to any conclusions on the science that resulted in the Perry-sanctioned execution of Willingham anytime soon ­— and certainly not before the March primary.

And when the commission eventually does consider the case, Bradley will be careful to avoid any suggestions of Willingham’s guilt or innocence. “The commission has to be very careful about the process that it develops so that we keep the focus ... on forensic science and not on the criminal case,” Bradley told The Dallas Morning News.

Bradley may claim that he is not a pawn of the administration, but the evidence suggests otherwise.