Sunday, August 30, 2009

Music Video: "Warn Them" - The Welfare Poets

Title track from the "Warn Them" album, the latest release from The Welfare Poets.


The Welfare Poets are a collective of activists, educators, and artists together since 1990. Through teaching residencies and workshops, through activism around community struggles and through sharp-edged performances of music that incorporates Hip Hop, Bomba y Plena, Latin Jazz and other rhythms, the Welfare Poets bring information and inspiration to those facing oppression and those fighting for liberation.

"Cruel and Unusual Punishment" is a compilation CD inspired by Hasan Shakur (Derrick Frazier). This warrior struggled not only to save his own life, but the lives of any and everyone on death row in the US. He was unjustly executed by the barbaric state of Texas on August 31, 2006. Cruel and Unusual Punishment was partially made possible by a grant from the Funding Exchange.

On the July 21, 2007 rally to save Kenneth Foster, the Welfare Poets performed in front of the Texas Governor's Mansion.

Wednesday, August 26, 2009

San Antonio Express-News: Keller is unsuited for top court job

The San Antonio Express-News, a newspaper that ran long articles covering each day of the trial of Judge Sharon Keller that took place in that city, says in an editorial today titled "Keller is unsuited for top court job" that "one step toward restoring confidence in the system is to hold Keller accountable for the events that took place in 2007 and remove her as presiding judge of the Court of Criminal Appeals."
Even in Texas, the execution of a convicted murderer is not a commonplace occurrence. When the state is prepared to administer the ultimate, irreversible sanction of justice, its officials must ensure that the judicial process has functioned with meticulous care. A human life is at stake.

Sharon Keller has demonstrated herself to be unfit to serve as the highest judge on Texas’ highest criminal appeals court. The state Commission on Judicial Conduct properly prosecuted Keller for judicial misconduct in the case of death row inmate Michael Richard.

On the day of Richard’s scheduled execution in 2007, the U.S. Supreme Court announced that it was going to consider a case that would determine whether execution by lethal injection amounted to unconstitutionally cruel and unusual punishment. Richard’s attorneys had contacted Keller, the presiding judge on the Texas Court of Criminal Appeals, indicating they were planning to file an appeal on that basis.

The Supreme Court case led to a seven-month moratorium on lethal injections. But not before Texas sent Richard to the death chamber. Despite the news from Washington, Keller refused to keep the court clerk’s office open past 5 p.m. to receive the appeal from Richard’s attorneys.

Keller’s defense is that Richard’s attorneys failed to knock on the right doors and weren’t persistent enough. But Richard’s attorneys don’t represent the power of the state and don’t have the same professional and ethical responsibilities as a judge on the Court of Criminal Appeals.

Keller’s actions are at issue, not those of Richard’s attorneys. The judge failed to follow standard procedure for after-hours appeals in death penalty cases. That’s why she faces five counts of official judicial misconduct. In the end, the Supreme Court ruled that lethal injections are constitutional. Richard, who had been on death row for two decades for the gruesome rape and murder of Marguerite Dixon, would have been executed anyway — without questions about the impartiality of Texas justice.

Keller’s irresponsible actions have brought disrepute on the Texas criminal justice system. Worse, they’ve unnecessarily shifted the focus away from the true victim in this case — Dixon.

One step toward restoring confidence in the system is to hold Keller accountable for the events that took place in 2007 and remove her as presiding judge of the Court of Criminal Appeals.

Senator Edward "Ted" Kennedy on the Death Penalty - R.I.P

Tuesday, August 25, 2009

DMN Editorial: Judge Keller's disappointing testimony

Dallas Morning News is the second newspaper in Texas after the Austin American-Statesman to publish an editorial following last week's trial of Judge Sharon keller.

It was impossible not to gasp last week when Texas Court of Criminal Appeals Presiding Judge Sharon Keller addressed the question of what she would do differently if she had a do-over in the execution of Michael Richard.

Nothing. That was the essence of Keller's answer at her misconduct trial. It is as disturbing now as it was when news broke of her infamous "we close at 5" directive to court personnel minutes before Richard's execution was scheduled to be carried out in September 2007.

Her defense is built on a thinly sliced interpretation of procedures that offend the expectation that Texas courts should be accessible and blindly fair.

Keller's supporters may ask what fairness Richard showed to 53-year-old Houston-area nurse Marguerite Lucille Dixon when he entered her home, raped her and shot her in the head. Answer: none. Nor have we seen evidence to question his guilt.

That's not the point. Instead, consider that the next person with a last-minute appeal might have compelling information about the miscarriage of justice. Anyone who is aware of Texas' record number of DNA exonerations should be mindful of that.

Keller asserts that Richard's attorneys should have known that her statement about closing pertained only to the courthouse doors and not to a duty judge who was working late. Appellate attorneys were having computer problems and were scrambling against the filing deadline. But it appears that even court personnel have had differing interpretations of the events of that evening.

No matter; as the presiding judge, she should have made sure there were no gray areas where life-and-death matters were concerned that night. Procedures guaranteeing last-minute access should be enunciated to any involved party as time runs out. The court must not assume general understanding and merely recite technicalities.

Revised court procedures in the wake of the Richard case suggested that the nine-member court knew change was due. Weeks later, the judges issued written guidelines including a new e-filing system for death appeals.

Despite those improvements made in her own court, Keller's testimony indicated no regrets about that night, amplifying her reputation as a pro-prosecution judge indifferent to fair play. Like it or not, she made herself the face of Texas courts in 2007. Unfortunately, her testimony last week did nothing to dispel the notion that ours is a callous system of justice.

Texas Executed an Innocent Person: Cameron Todd Willingham

The Chicago Tribune is breaking the story that the investigator for the Texas Forensic Science Commission is going to report that the fire for which Cameron Todd Willingham was sentenced to death for setting to murder his children was an accidental fire and not arson. Willingham always maintained his innocence. If the TFSC takes the investigator's report and accepts his conclusions then it could acknowledge in its own report that Texas has executed an innocent person. The Chicago Tribune first reported on Willingham's possible innocence in 2004 and followed up in 2006.

In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all -- the same findings found in a Chicago Tribune investigation of the case published in December 2004.

Willingham, the father of those children, was executed in February 2004. He protested his innocence to the end.

The Tribune obtained a copy of the review by Craig Beyler, of Hughes Associates Inc., which was conducted for the Texas Forensic Science Commission, created to investigate allegations of forensic error and misconduct. The re-examination of the Willingham case comes as many forensic disciplines face scrutiny for playing a role in wrongful convictions that have been exposed by DNA and other scientific advances.

Among Beyler's key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams' house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham's injuries could not have been caused as he said they were.

The state fire marshal on the case, Beyler concluded in his report, had "limited understanding" of fire science. The fire marshal "seems to be wholly without any realistic understanding of fires and how fire injuries are created," he wrote.

The marshal's findings, he added, "are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."

Over the past five years, the Willingham case has been reviewed by nine of the nation's top fire scientists -- first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.
Accompanied by 300 supporters standing outside the gates of the Texas Governor's Mansion, family members (pictured) of Cameron Todd Willingham delivered a letter to Gov Perry on October 28, 2006 asking him to stop executions and investigate the case of their step son/uncle to determine if he was wrongfully executed. Eugenia Willingham slipped the letter, along with a copy of an article from the Chicago Tribune that concluded that her stepson was probably innocent, through the bars of the front gate of the mansion and left it lying on the walkway leading to the front door of the mansion. A DPS trooper on duty refused to take the letter, so Eugenia left it on the walkway. According to a Public Information Request sent to Perry by TMN, we know that his staff later retrieved the letter and delivered it to Perry's office, however he never responded to Willingham's family. h/t Stop Executions Blog

Below is a copy of the letter
The Honorable Rick Perry
Governor of Texas
Austin, Texas

October 28, 2006

Dear Governor Perry,

We are the family of Cameron Todd Willingham. Our names are Eugenia Willingham, Trina Willingham Quinton and Joshua Easley. Todd was an innocent person executed by Texas on February 17, 2004. We have come to Austin today from Ardmore, Oklahoma to stand outside the Texas Governor’s Mansion and attempt to deliver this letter to you in person, because we want to make sure that you know about Todd’s innocence and to urge you to stop executions in Texas and determine why innocent people are being executed in Texas.

Todd was not the only innocent person who has been executed in Texas. There have been reports in the media that Ruben Cantu and Carlos De Luna were also innocent people who were executed in Texas. It is too late to save Todd’s life or the lives of Ruben Cantu or Carlos De Luna, but it is not too late to save other innocent people from being executed. We are here today to urge you to be the leader that Texas needs in order to make sure that Texas never executes another innocent person. There is a crisis in Texas regarding the death penalty and we ask you to address the crisis. Because the public can no longer be certain that Texas is not executing innocent people, we urge you to stop all executions.

Strapped to a gurney in Texas' death chamber, just moments from his execution for setting a fire that killed his three daughters, our son/uncle, Todd Willingham, declared his innocence one last time, saying "I am an innocent man, convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do." Todd is now dead and can no longer speak for himself, so we have come to Austin to speak for him.

Before Todd’s execution, you were given a report from a prominent fire scientist questioning the conviction, but you did not stop the execution. The author of the report, Gerald Hurst, has said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

Another report issued in 2006 by a panel of national arson experts brought together by the Innocence Project concluded that the fire that killed Todd’s three daughters was an accident. The report says that Todd’s case is very similar to the case of Ernest Willis, who was convicted of arson murder and sentenced to death in 1987. Willis served 17 years in prison before he was exonerated in 2004 – the same year Todd was executed. The report says that neither of the fires which Todd and Ernest Willis were convicted of setting were arson. The report notes that the evidence and forensic analysis in the Willingham and Willis cases "were the same," and that "each and every one" of the forensic interpretations that state experts made in both men's trials have been proven scientifically invalid. In other words, Todd was executed based on “junk science”.

Please look into our son/uncle’s case and ask the District Attorney in Corsicana to reopen the investigation into the crime for which my brother was wrongfully executed. You should also establish an Innocence Commission in the next session of the Texas Legislature that could investigate my brother’s case, as well as other cases of possible wrongful executions, such as Ruben Cantu and Carlos De Luna.

Please ensure that no other family suffers the tragedy of seeing one of their loved ones wrongfully executed. Please enact a moratorium on executions and create a special blue ribbon commission to study the administration of the death penalty in Texas. Texas also needs a statewide Office of Public Defenders for Capital Cases. Such an office will go a long way towards preventing innocent people from being executed. A moratorium will ensure that no other innocent people are executed while the system is being studied and reforms implemented.

We look forward to hearing from you and we pledge to work with you to ensure that executions of innocent people are stopped.

Yours sincerely,

Eugenia Willingham
Stepmother of Cameron Todd Willingham who raised him from the age of 13 months

Trina Willingham Quinton
Niece of Cameron Todd Willingham

Joshua Easley
Nephew of Cameron Todd Willingham

Friday, August 21, 2009

NYT: An Unfit Judge

That's the title of New York Times' Friday editorial calling for the removal of Judge Sharon Keller.
Judge Sharon Keller, the Texas appellate court judge who closed the clerk’s office before a death row inmate could file a last-minute appeal, is fighting to keep her job. At a hearing on Wednesday, she said in a crowded courtroom that if she had it to do again, she would do the same thing. That testimony is further proof of why Judge Keller needs to be removed from the bench.

On Sept. 25, 2007, Michael Richard’s lawyers called the court clerk’s office to say they were running late in delivering the papers for his appeal. The Supreme Court had unexpectedly issued an order in another death penalty case that they believed provided grounds for putting off his execution. When the request to keep the office open reached Judge Keller, she insisted it would close promptly at 5 p.m. The appeal was not filed, and Mr. Richard was executed hours later.

Judge Keller is now facing five counts of judicial misconduct and a possible recommendation that the state judicial system remove her from the bench.

In court this week, Judge Keller lashed out at the condemned man’s lawyers, blaming them for the controversy. She argued that Mr. Richard could still have filed his appeal by seeking out another judge, but that misses the point. She did not follow appropriate procedures. And clearly, under any interpretation of the rules, given that a life lay in the balance, the clerk’s office should have stayed open.

Judge Keller’s profound lack of appreciation for the seriousness of taking a life — and the obligations it places on the state — is similar to the disturbing dissent that Justices Antonin Scalia and Clarence Thomas delivered this week in the Troy Davis case. They suggested there was no constitutional problem with executing a man who could prove he was innocent.

We believe the death penalty is in all cases wrong. But people who support it should still insist that it be carried out only after a prisoner has been given every reasonable chance to make his case. Judge Keller’s callous indifference in a case where the stakes could not have been higher makes her unfit for office.

Thursday, August 20, 2009

Evidence Presented at Trial Supports Removal of Sharon Keller from CCA

Students Against the Death Penalty which joined Texas Moratorium Network in filing a judicial complaint against Sharon Keller in November 2007, has monitored the trial of Sharon Keller and finds the evidence presented at trial supports the severest sanctions against Keller - her removal from office for violating the Execution-Day Procedures of her court and for casting discredit on the Texas judiciary.

"Keller’s testimony on the witness stand that in hindsight she would do nothing differently on Sept 25, 2007 if she had it to do over again, has further damaged the integrity of the Texas judiciary. The most effective way to restore integrity to Texas’ highest criminal court is for Sharon Keller to be removed from office. She has seen that the consequences of her saying “we close at 5” were that Michael Richard was unable to file an appeal with the Texas Court of Criminal Appeals, even though his lawyers called the court again shortly before 6 PM and were told not to bother to bring the appeal to the court because no one was there to accept it”, said Scott Cobb, president of Texas Moratorium Network.

“Cheryl Johnson, the duty judge assigned to receive all communications regarding the case of Michael Richard on Sept 25, 2007, testified at the trial that she was not informed about the request by Richard’s lawyers to file a late appeal. She testified that she would have accepted the appeal. Sharon Keller was obligated by the rules of her own court to direct all communications regarding Richard to Judge Johnson.”” Said Cobb

“Sharon Keller could have avoided being charged with misconduct and incompetence, if she had responded to Ed Marty when he called her at 4:45 pm on Sept 25 by saying, “tell them the clerk’s office closes at 5, but they can submit an appeal after 5 by directly contacting any judge on the court who is willing to accept the appeal. Let them know that Judge Johnson is the assigned duty judge on the Richard case and inform Judge Johnson of their request to file an appeal”, said Cobb.

Excerpt from the judicial complaint filed by TMN: "It is clear from her actions that Judge Keller can no longer be expected to preside over death penalty cases with the requisite fair, bias-free and even-handed disposition so critical to such serious life and death matters.”

A PDF of the judicial complaint filed by TMN in November 2007 is here:

A video of a copy of the judicial complaint being delivered for Sharon Keller to the clerk of the Texas Court of Criminal Appeals in November 2007 is on YouTube at The video contains a statement by the sister of Michael Richard outside the CCA. The video also contains footage of the clerk’s office remaining open 3-4 minutes after 5PM to receive the copy of the complaint.

Wednesday, August 19, 2009

Keller drags Texas through the mud

The following is last Monday's Austin American-Statesman editorial on the trial of Judge Sharon Keller. As each side rests its case on Thursday, it is good to read this editorial again and remember that closing the courtroom at 5 PM was only one of the many outrageous decisions Sharon Keller has made during her career as the presiding judge of the Texas Court of Criminal Appeals.

No matter the outcome of the hearing scheduled to begin today that could end in sanctions against embattled Texas Court of Criminal Appeals Chief Justice Sharon Keller, her already battered reputation will be pounded some more. While the judge's many detractors will find some satisfaction in that, the Texas way of administering criminal justice also will take a beating.

A politician's reputation is insignificant in the grand scheme of things, but if a society claims to be one based on law, then its justice system is only as good as the confidence in it.

Beyond the question of whether Keller's handling of a last-minute death row appeal was legally appropriate is the much larger question of whether criminal appeals in Texas are handled objectively and whether the state's court of last resort in criminal cases is in reality nothing more than a state agency dedicated to upholding convictions.

Texas has always relished its "tough on crime" reputation. Politicians who campaign against crime always find a friendly crowd, and Keller jumped on that and rode pro-prosecution rhetoric to a seat on what should be an objective forum for hearing appeals. But promising fairness is boring and doesn't get you on television.

Keller — and by extension, the state's justice system — has been the subject of hours of air time, gallons of ink and enough bytes of electronic information to operate a fleet of spaceships as a result of the case that has led to today's proceedings before the State Commission on Judicial Conduct.

A brief background: Lawyers for convicted killer Michael Richard tried to file a last-minute, after-hours appeal in 2007. According to Richard's lawyers, they were having computer problems and asked if they could file motions after 5 p.m. They said they were told "no."

Keller's lawyer disputes that now-famous reply. Furthermore, he claims that defense lawyers are to blame for Richard not getting a hearing.

Only two months after his release from a second prison term in 1986, Richard raped, shot and killed Marguerite Lucille Dixon, 53, a nurse and mother of seven, inside her Harris County home. Richard won a second trial after pleading that he was abused as a child and possessed an IQ well below average. Tried again, he was convicted again in 1995 and sentenced to death.

The last-minute appeal was based on the U.S. Supreme Court's announcement earlier that same day that it would hear a case arguing that death by injection violates the Constitution because it constitutes cruel and unusual punishment.

Keller's critics say closing the Texas Court of Criminal Appeals to the appeal was callous. The state's Commission on Judicial Conduct filed a list of more legal complaints against Keller in connection with the Richard case.

The he-said, she-said nature of the depositions doesn't hold much promise for shedding light on the situation but offers a rare glimpse into the court's inner workings. However repugnant some may find it, the hearing ought to be considered mandatory viewing.

Some commentators predict that the worst that will happen is that Keller will end up with a slap on the wrist once it's all said and done.

If so, that slap on the wrist will result in yet another black eye on a Texas justice system that is supposed to be blind.

Judge Sharon Keller Trial: Lesson for Activists

The following article was in today's New York Times. It is significant that this reprehensible, pro-prosecution judge, who has done so much more than kill Michael Richard by "closing at 5:00," is now a defendant.

It is important for all of us who are activists to recognize the role we play in bringing down capital punishment. Sharon Keller would not be on trial today if it were not for activists with the Texas Moratorium Network who figured out how to focus on this faux paux by a judge to bring attention to the death penalty.

Screw ups like this happen every day in Texas courts. But we were able to use this one in our struggle because TMN filed a complaint with the Texas Commission on Judicial Conduct. Many of us did not even know what this commission was.

But, this made our outrage legitimate. Then Scott Cobb and others spoke with legislators and notified the media and began a campaign of getting others to sign on to the complaint. Then things began to snowball. Almost 2000 people signed on to the complaint. A legislator was encouraged to file a bill in the last session to impeach Keller. Then he had a press conference about his impeachment bill. Finally these charges were filed against Keller and now she is on trial.

The execution of Michael Richard could have been just another blip on the body count radar in Texas, but it became a major scandal. Now we have another article about Keller in the New York Times and this news report on CNN.

The lesson for activists: never leave a stone unturned. Always let our outrage at injustice turn into action. Follow up on every despicable action, whether it is a sleeping judge or a judge and DA having an affair during a capital murder trial, a crime lab screwing up, or a court appointed attorney never meeting with his/her client.

Of course, for us in Texas, we have so many more opportunities to do this because the outrageous, racist, illegal and immoral injustices abound. But, every state with the death penalty has injustices--find them and expose them and stay upset or outraged or whatever and let people know.

Mis dos centavos.
SAN ANTONIO — The highest-ranking criminal judge in Texas, the woman who presides over the most active execution chamber in the country, sat at a defense table on Monday to face charges of intentionally denying a condemned man access to the legal system.

The judge, Sharon Keller of the Texas Court of Criminal Appeals, took her seat before a gallery crowded with bloggers, lawyers and death penalty protesters. Outside the courthouse, demonstrators called for her ouster. Inside, lawyers on both sides emphasized that capital punishment was not on trial.

But to some, Judge Keller has come to embody the practice. An intensely private former member of the Dallas County District Attorney’s Office, she won election to the court in 1994 and to the post of presiding judge in 2000. She has cultivated a reputation for rulings favorable to the prosecution in death penalty cases.

On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case.

Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf.

Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed.

As the story behind the execution spread, defense lawyers, editorial boards and legislators called for Judge Keller’s removal. In February, the State Commission on Judicial Conduct filed formal charges. The case was assigned to a special master, Judge David Berchelmann Jr. of the district court here in Bexar County, for the civil fact-finding proceeding that opened Monday.

In written arguments, the commission contends that Judge Keller circumvented normal procedures, which provide for after-hours appeals in capital cases. Judge Keller responds that the lawyers for the inmate, Michael Richard, a convicted murderer who made no claim of innocence, should have filed their paperwork with the assigned duty judge rather than trying to go through the clerk’s office.

The trial, expected to last most of the week, promises to unfold as a finely wrought dance around the details of an afternoon’s timeline.

At issue are such intricacies as whether the words “court” and “clerk” were used interchangeably and the extent to which the inmate’s lawyers conveyed the computer problems that delayed their paperwork. At the end of the proceeding, Judge Berchelmann will make recommendations to the commission, which in turn will consider further action. The commission has the power to censure a judge or to recommend removal by a tribunal.

As the lawyers presented their opening arguments Monday, Judge Keller slumped a bit in her chair.

“This is not a referendum or a debate or a poll concerning the death penalty,” said John J. McKetta, the examiner presenting the commission’s case, who argued that Judge Keller had proved incompetent to administer capital punishment with the necessary gravity, discretion and care.

“If all she did was field a call where somebody said, ‘I’ve forgotten what the closing time is,’ and she said, ‘Five o’clock, don’t you remember?,’ we shouldn’t be here today,” Mr. McKetta said.

A lawyer for Judge Keller, Charles L. Babcock, argued that the entire case amounted to a few innocent, misunderstood words spoken on the telephone.

“Judge Keller is an honorable, competent, popularly elected judge who believes in and follows the rule of law,” Mr. Babcock said.

After opening arguments, the commission called witnesses including Judge Cheryl Johnson of the Court of Criminal Appeals, the assigned duty judge on the night of the execution. Judge Johnson testified that she had waited after closing time but never received a call.

“If I had known that they had asked for time, I would have granted it,” she said of Mr. Richard’s lawyers. “It’s an execution.”

When the hearing broke, Judge Keller, 56, walked to the elevator in silence, accompanied by lawyers, escorted by deputies and trailed by protesters.

Monday, August 17, 2009

Sharon Keller Trial - Day 1

A group of people who signed a judicial complaint against Judge Sharon Keller held a demonstration at the Bexar County Courthouse before Keller's trial began. The trial took place in the courtroom of David Berchelmann jr, presiding judge of the 37th District Court. Pictures posted online.

Inside the Courtroom

Sharon Keller and her attorney Chip Babcock leaving for lunch

U.S. Supreme Court Orders Hearing for Troy Davis

The Innocence Project is reporting that in a highly unusual step, the U.S. Supreme Court today ordered a new hearing in the case of Troy Davis, who has been on Georgia’s death row for nearly two decades for a murder he says he didn’t commit. Ruling on a habeas corpus petition from Davis, the court ordered a federal judge to “receive testimony and findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’] innocence.”

Justices Antonin Scalia and Clarence Thomas dissented.

But Justice John Paul Stevens cited prior court precedent that said it would be “an atrocious violation of our Constitution and the principles upon which it is based” to execute an innocent man.

“Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man,” Stevens wrote. “The dissent’s reasoning would allow such a petitioner to be put to death nonetheless.”

Read the full story here. (Atlanta Journal-Constitution, 08/17/09)
Last year, the Innocence Project joined with the Innocence Network in filing a friend-of-the-court brief in federal court on Davis’ behalf, arguing that eyewitness identification – a major contributor to Davis’ conviction – is often unreliable and that the case should be subject to review on appeal. Download the Network brief here. (PDF)

Troy in the News:
Atlanta-Journal Constitution

Associated Press
C&C Blog

Sunday, August 16, 2009

Demonstration Before Trial of Judge Sharon Keller - August 17 at 8:00 AM in San Antonio

Representatives of Peoples' Judicial Complaint Signed by About 1,900 Members of the Public to Participate in Demonstration at Trial of Sharon Keller

A group of people who signed a judicial complaint against Judge Sharon Keller will hold a demonstration at 8 AM in San Antonio at the Bexar County Courthouse before Keller's trial begins on August 17. The trial is expected to begin at 9:30 AM. The demonstration will be held near the entrance of the building in which the trial will take place in the courtroom of David Berchelmann jr, presiding judge of the 37th District Court, at 100 Dolorosa in San Antonio. The group will represent the approximately 1,900 people who signed a judicial complaint against Keller submitted by Texas Moratorium Network to the State Commission on Judicial Conduct in November 2007.

Why: "Keller has damaged the integrity of the Texas judiciary and violated the public trust placed in her by the people of Texas. She has violated several provisions of the Code of Judicial Conduct and denied Michael Richard his constitutional right not to be deprived of life without due process and denied his right to be heard in court. Because of her arbitrary decision not to stay open to accept the appeal of death row prisoner Michael Richard, which she made in violation of her own court's rules and without consulting the other judges on the Court, Keller should be removed from office", said Scott Cobb, president of Texas Moratorium Network.

From the judicial complaint filed by TMN: "It is clear from her actions that Judge Keller can no longer be expected to preside over death penalty cases with the requisite fair, bias-free and even-handed disposition so critical to such serious life and death matters. Justice was not done in the Richard case, and if it was not done because Keller dishonestly said "We close at 5", then there is no question that Keller is unfit to be a judge and should be removed from office".

Date: Monday, August 17, at 8 AM

Place: Outside Bexar County Courthouse
100 Doloroso
San Antonio, Texas

The demonstration is sponsored by Texas Moratorium Network, Texas Death Penalty Abolition Movement, Texas Students Against the Death Penalty and Campaign to End the Death Penalty - Austin.

A PDF of the judicial complaint filed in November 2006 is here:

A video of a copy of the judicial complaint being delivered for Sharon Keller to the clerk of the Texas Court of Criminal Appeals in November 2007 is on YouTube at The video contains a statement by the sister of Michael Richard outside the CCA.

Friday, August 14, 2009

Ohio Governor Denies Clemency

Earlier today, Ohio governor Ted Stickland made the decision to deny clemency to Jason Getsy. The governor's decision directly contradicts that which was made by the Ohio Parole Board on July 19, 2009.

Jason Getsy participated in a murder-for-hire scheme that killed Ann Serafino and left Charles Serafino, her son, critically injured. The mastermind of the plot received a life sentence but Getsy received a death sentence.

Governor Strickland stated that "the fact Mr. Santine was not sentenced to death is not, by itself, justification to commute Mr. Getsy's sentence." The Ohio Parole Board noted in its report recommending clemency that Getsy would not have been involved with the plot had it not been for Mr. Santine.

According to the blog page for sentencing law and policy expert Professor Douglas Berman of the Moritz College of Law at the Ohio State University, a report has been published noting the Ohio attorney general Richard Corday pushed for denial because the sentencing disparity was not a legally sound reason for mercy.

Kevin Werner, executive director of Ohioans to Stop Executions said, "today our thoughts are with the Serafino and Getsy families. We are disheartened by the obvious unfairness and disparity that the governor up-held." He also noted, "OTSE appreciates the hard work of the Ohio Parole Board and the seriousness they gave to Jason Getsy's clemency application. We particularly appreciate that the Parole Board examined all aspects of this case and didn't just look for a technicality to hang their hats on. The exact purpose of clemency is to correct mistakes and to show mercy. I think the Parole Board should be commended for recognizing the need for mercy. We are gravely disappointed with Governor Strickland's decision."

To read related articles, follow these links:

AP reports clemency denied for Getsy
Ohio AG pushed for execution of Getsy


We are proud and honored to announce that historian, author and activist Howard Zinn will be the keynote speaker at the Campaign to End the Death Penalty's 9th annual convention! The convention will be held on the weekend of November 7-8 at the University of Chicago, and Howard will be speaking on Saturday night.

The title of this year's convention is "Making the death penalty history." We will host plenaries and workshops throughout the convention that both celebrate our victories, but also discuss and debate questions facing our movement. We will share ideas, brainstorm strategies and probe various aspects of the criminal justice system.

Exonerated prisoners and family members will play a prominent role, as they do every year at our convention. Newly freed prisoners Ronnie Kitchen and Marvin Reeves will give welcome greetings to the opening of convention. So this year, it's not to be missed. Mark your calendars: November 7 and 8.

We will have convention registration available at the CEDP Web site in the coming weeks.

Thursday, August 13, 2009

Time: A Texas Judge on Trial: Closed to a Death-Row Appeal?

The following is Time Magazine's article on the upcoming trial of Judge Sharon "Killer" Keller in San Antonio.
By Hilary Hylton / Austin

Soft-spoken and a devout Christian, Judge Sharon Keller presides as chief
justice of Texas' highest criminal court. She's also known as "Sharon Killer"
by her opponents, who are going to see her in court next week on charges of
judicial misconduct. They charge that Keller refused a condemned man a
last-minute appeal in 2007 and now she faces a trial in a San Antonio
courtroom that could lead to her removal and will certainly focus wide
attention on Texas' enthusiasm for the death penalty.

Keller finds herself at this pass because of a four-word sentence she uttered
on September 25, 2007: "We close at five." According to a newspaper interview
with Keller in October 2007 and pretrial testimony last year, she said those
words to Ed Marty, general counsel for the Texas Court of Criminal Appeals
(CCA). As the court's logistics officer, Marty had called the judge at the
behest of lawyers for Michael Richard, 49, who had been on Death Row for two
decades and whose execution was scheduled for that evening. The lawyers were
allegedly having computer trouble and problems getting last-minute paperwork
to the Austin court. Keller was reportedly at her home dealing with a
repairman that afternoon when she she got the request — and made her reply.
Richard's lawyers failed to meet the deadline, and at 8:23 p.m. Richard was
declared dead following a lethal injection. (Read a brief history of lethal

An outcry followed. "This execution proceeded because the highest criminal
court couldn't be bothered to stay an extra 20 minutes on the night of an
execution," Andrea Keilen, executive director of Texas Defender Service told
ABC News in 2007. Not only did Texas defense attorneys quickly file complaints
with the state's judicial oversight commission, in an unprecedented move the
National Association of Criminal Defense Lawyers joined the filing. Newspapers
across the state and nation weighed in with scathing editorials and anti-death
penalty campaigns went on the attack. The Texas Moratorium Network set up

A year and a half later, in February, Keller was charged by the State
Commission on Judicial Conduct with "willfill and persistent" failure to
follow the CCA's protocols for last-minute appeals and for bringing public
discredit on the court. Opponents say her actions displayed a dogmatic
affinity for the death penalty. But her supporters, some of whom do not share
her conservative views, contend she was following the rules and was not
responsible for the shortcomings of defense attorneys. They also point to
Keller's work doubling the number of public defenders' offices in Texas and
boosting their budget from $19 million to $60 million. (Read about the debate
over the death penalty.)

A special master — a judge named by the state supreme court for the occasion —
has been appointed to preside over the fact-finding trial. San Antonio
District Judge David Berchelman Jr., a former member of the CCA, can either
recommend to the commission that the charges be dismissed, or that Judge
Keller be reprimanded or even removed from office by the state supreme court.

Though she handily won her elections to the bench, Keller exhibited little
interest in politics during college, friends say. The bright daughter of a
Dallas entrepreneur and famed restauranteur "Cactus" Jack Keller, she excelled
in school and studied philosophy at Rice then law at Southern Methodist
University. But 1994, while working as an appellate attorney in the Dallas
prosecutor's office, she ran for a spot on the CCA and, thanks to a Republican
landslide on the coattails of George W. Bush, won her seat. In her second term
she ran successfully for the top slot, the court's presiding judge. Keller has
consistently been part of the court's conservative voting bloc and has said
she saw her election as an opportunity to balance the high court after several
decades of domination by judges inclined toward the defense bar. (However,
there has always been a high degree of support for the death penalty even
among Democratic judges in Texas.)

The genteel-looking Keller is expected to put up a fight, even though, so far,
she has been silent on the upcoming trial. In a written response to the
charges, she derided the defense attorney's claims that computer trouble
delayed their paperwork: "It did not take a computer to prepare and timely could have been hand written and the court would have accepted it as
Judge Keller informed the Commission."

She will also defend herself by discussing the man she is accused of wronging:
the executed Michael Richard. Richard has a long legal history and a criminal
record that evokes little sympathy. "By the time he was executed," Keller
wrote in her response to the charges, "Richard had two trials, two direct
appeals (including to the United States Supreme Court), two state habeas
corpus proceedings and three federal habeas corpus hearings or motions." She
added that the charge against her that Richard was not accorded access to open
courts or the right to be heard "is patently without merit."

In 1986, two months after being released from his second prison term, Richard
killed Marguerite Lucille Dixon, 53, a nurse and mother of seven. Dixon had
invited him in for a cold glass of water after Richard had knocked on her
front door and asked if her van was for sale. Two of her children found her.
She had been sexually assaulted, then killed and her van and television
stolen. A year later, Richard was on death row. After confessing, Richard
claimed he was innocent, but his appeals centered on a history of alleged
family abuse and his supposed IQ of 64. He told reporters he had learned to
read and write on Death Row.

But the handling of Richard's appeals process is what is being contested by
Keller's opponents. Richard won a new trial from the CCA because the alleged
abuse he had suffered at the hands of his father had not been considered in
his first trial, according to the appellate record. But Richard was convicted
again in 1995 and once again given the death penalty, even after his mother
and sister were allowed to testify about the alleged abuse during the
punishment phase of the trial. Following a U.S. Supreme Court ruling
prohibiting the execution of mentally retarded prisoners, his lawyers appealed
for another trial based on his alleged IQ level. The CCA turned him down and
that appeal was ongoing when the Supreme Court suddenly opened a new avenue
for appeal on the day Richard was scheduled to die.

The high court announced it had agreed to hear arguments in Baze v Rees, on
whether Kentucky's use of lethal injections (the same method Texas uses)
violated constitutional proscriptions against cruel and unusual punishment.
Richard's attorneys with the Texas Defender Service hoped to use the Baze case
to win a delay, but they would have to go through the CCA in Austin first
before approaching the Supreme Court for a stay and, as the execution was
looming, they would have to act very quickly. Frantically trying to assemble
their paperwork — the CCA did not permit e-mail filings, but now does —
lawyers in Houston and Austin conferred over the phone, back and forth. They
claimed they were further slowed by computer failures, an issue on which
experts on both sides are expected to testify.

One issue is whether Keller was emphatically rejecting any pleadings to the
court, or simply noting that the clerk's office closed at 5 p.m., as required
by state law. Keller's attorneys will most likely argue the latter, saying
that everyone knows that Texas appellate law provided for after-hours filings
directly to judges. Friends said Keller was bewildered by the fallout. In the
days just after the event, she told the Austin American-Statesman that she was
not given a reason why the attorneys wanted the clerk's office to stay open.
"They did not tell us they had computer failure and given the late request,
and with no reason given, I just said, 'We close at five.' I didn't really
think of it as a decision as much as a statement," the newspaper quoted Keller
as saying.

Keller has turned to noted defense attorney Charles "Chip" Babcock — he
represented Oprah Winfrey in 1998 when the talk show host was unsuccessfully
sued for slander by Texas cattlemen. Babcock told the Austin
American-Statesman he will question the "myth" of the computer problem and the
last-minute actions of Richard's appellate lawyers. "I think our version is
going to be that they just didn't do their job that day," Babcock said. It is
a tactic that Neal Manne, representing the Texas Defenders Service, rejects as
a "sideshow" designed to deflect from the real issue — Judge Keller's actions
that afternoon.

One sobering what-if: even if Richard had gotten his appeal accepted by the
U.S. Supreme Court, he would most likely have extended his life by only eight
months. The high court eventually upheld the constitutionality of Kentucky's
use of lethal injections.

Wednesday, August 05, 2009

Passage of Racial Justice Act “A Great Spiritual Victory” Say Supporters

With the passage of the North Carolina Racial Justice Act by the NC Senate yesterday by a vote of 25-18 the State of North Carolina stepped up to lead the South away from the worst of its racist past. The bill allows for court reviews over capital defendants’ claims that racial bias influenced their cases. Gov. Bev Perdue is expected to sign the bill into law soon.

“This is a great spiritual victory for North Carolina, the South, and our whole country,” said Stephen Dear, executive director of People of Faith Against the Death Penalty. “We have passed through the horrors of Jim Crow, through the racial politics of Jesse Helms, and now we have come to acknowledge that racial bias infects our courts over one of the greatest powers citizens give to government, the power to take human life.

“This is a milestone victory out of the South. This is a victory brought by nonviolent social activism, the indomitable spirit and hard work by thousands of people including a scrappy, underfunded, but disciplined coalition of citizens’ groups, and some legislators who decided to stand empowered and do the right thing despite pressure from their political bosses and all in the face of misinformation and additional pressure from some district attorneys.

“Of course, despite this reform the death penalty system will still be subject to human error and will still be the morally unacceptable and error-prone system it cannot help but be. The only way to overcome the death penalty’s deep flaws is to repeal it and use the money that would be saved to provide real help for survivors of murder victims,” Dear said.

About 700 clergy throughout North Carolina recently called for passage of the NC Racial Justice Act.

People of Faith Against the Death Penalty is a national nonprofit organization based in Carrboro, NC and founded in 1994.