Sharon Keller's Court of Criminal Appeals Says Hearing on Death Penalty Constitutionality Must End

From the Austin American-Statesman:

A Houston defendant cannot challenge the state’s death penalty laws as unconstitutional before his capital murder trial begins, the state’s highest court ruled today.

John Edward Green Jr., charged with robbing and killing a Houston woman in 2008, had challenged the Texas death penalty law because “its application has created a substantial risk that innocent people have been, and will be, convicted and executed.”

District Judge Kevin Fine held a Dec. 6 hearing on Green’s motion, hearing from defense experts who testified about 138 exonerations of U.S. death row inmates since 1978, including 12 in Texas.

At the urging of prosecutors, the Texas Court of Criminal Appeals halted the hearing the following day and requested briefings to determine if proceedings should continue.
Today, the court ruled 6-2 that Fine exceeded his authority and ordered him to dismiss Green’s challenge. Texas law does not allow judges to hold pretrial hearings on the constitutionality of a law, said the opinion by Judge Cathy Cochran.

In addition, until the death penalty statute is applied against Green, he does not have legal standing to challenge the law, the court ruled.

“One does not put the cart before the horse: a defendant has no claim of wrongful conviction or wrongful sentencing before he has even gone to trial,” Cochran wrote.

“It bears noting that no provision of the current (death penalty statute) has been held unconstitutional by the Supreme Court or this Court, although that statute has been attacked many times,” Cochran added.

Judges Tom Price and Paul Womack dissented without submitting an opinion stating their reasons. Recently retired Judge Charlie Holcomb did not participate.

Fine made national news last spring when, in response to a motion from Green’s lawyers, he declared the Texas death penalty law unconstitutional. He later rescinded that ruling and ordered the December hearing, saying he should have heard evidence before reaching such a conclusion.

Experts to Testify to Forensic Science Commission Friday in Todd Willingham Case

The Texas Forensic Science Commission will devote the entire January 7, 2011 meeting to the case of Todd Willingham. They are scheduled to hear testimony from arson experts, including Craig Beyler. The hearing starts at 9:30 AM, but members of Texas Moratorium Network, Campaign to End the Death Penalty, Texas Death Penalty Abolition Movement and others plan to be outside the building at 8:30 AM with signs.

The hearing is in the Central Services Building, 1711 San Jacinto Boulevard Room 402 in Austin. We will go inside before the hearing starts. RSVP on the Facebook event page. The Innocence Project will show the meeting live on its website.

There will likely be a period devoted to receiving comments from the public. We invite members of the public to show up, bring signs and even make comments during the public comments period to let the Commission know that Texans Todd Willingham was wrongfully executed and that Texas should stop all executions through a moratorium on executions.

Before his execution, Todd Willingham said, “Please don’t ever stop fighting to vindicate me.”  

More on the meeting from the Austin American-Statesman:

The Texas Forensic Science Commission will hear from four fire investigation experts Friday as it continues to examine the science used to convict and execute Cameron Todd Willingham.

The special meeting in Austin, postponed from November, was sought by the commission’s scientists to help them answer two key questions:

1. What was the state of fire science, and what were fire investigators expected to know, in 1991 and 1992? That’s when two investigators used now-discredited techniques to conclude that Willingham intentionally set fire to his Corsicana home, killing his three young children.
2. What responsibility did the state fire marshal’s office have to reopen its Willingham investigation, and similar arson cases, once the agency realized scientific advancements had vastly improved the practice of arson investigation?

According to the commission, these invited experts have committed to appear Friday:

• Assistant State Fire Marshal Ed Salazar, second in command at the office that helps investigate suspicious fires statewide. One of the office’s investigators was instrumental in the 1992 conviction of Willingham, and the office recently stood by that investigation despite criticism from every modern, outside fire investigator to re-examine its conclusions.
• John DeHaan, one of the nation’s leading fire experts who has spent more than 35 years investigating fires. DeHaan wrote five editions of “Kirk’s Fire Investigation,” the most widely used textbook in the field, and co-wrote a companion text, “Forensic Fire Scene Reconstruction.” He is a frequent expert witness at arson trials, often testifying for the prosecution.
• Craig Beyler, president of the International Association of Fire Safety Science, is also one of the nation’s top fire investigators. Beyler was hired by the commission to analyze the Willingham fire and wrote a 2009 report that disputed every conclusion used to rule the fire an arson.
• Thomas Wood, a senior investigator with the Houston Fire Department. In a 2010 letter to the science commission, Wood said Willingham investigators could not be considered negligent because their arson conclusions were based on investigative standards common to that era.

The meeting begins at 9:30 a.m. in Room 402 of the Central Services Building, 1711 San Jacinto Blvd.

The Innocence Project will show the meeting live on its website.

The New York-based organization today criticized the commission’s decision not to invite two noted experts, Austin chemist Gerald Hurst and fire investigator John Lentini. Both men conducted outside examinations of the Willingham case and concluded that investigators based their arson finding on faulty science.

Hurst and Lentini testified during an October hearing before now-retired Austin District Judge Charlie Baird, who led an inquiry into whether Willingham was wrongfully executed. An appeals court halted the inquiry before Baird could issue a finding.

Texas' Entire Supply of Execution Drug Sodium Thiopental to Expire in March 2011

The Texas Attorney General has ordered Texas prison authorities to release information on the amount of drugs on hand to carry out executions. We now know that Texas' total supply of one of the three drugs used to perform executions is set to expire in March 2011, so Texas will have to try to obtain more of that drug, unless it decides to use the expired batch, which would probably be challenged in court. 

From Mike Ward at the Austin American-Statesman:

The Texas Department of Criminal Justice just made public these new details about the three drugs used in executions:

Sodium Thiopental 118 1 gram vials 118 vials will expire March 2011
Purchase date July 2009

Pancuronium Bromide 185 10 milligram vials 60 vials will expire March 2012 / Purchase date March 2010 125 vials will expire December 2011 / Purchase date December 2010

Potassium Chloride 578 20 milliequivalent vials 125 vials will expire September 2011 / Purchase date March 2010 453 vials will expire July 2011 / Purchase date March 2010

At present, Texas has only one execution scheduled after March. Current executions are set in January, February and July.

Sodium Thiopental has been in short supply nationally since earlier this year when the sole U.S. manufacturer stopped making the drug, blaming a lack of ingredients. At least two states have since delayed or halted executions because they are out of Sodium Thiopental or because their supply has expired and cannot be used.

Until this afternoon, Texas prison officials had refused to disclose how much of the various drugs they had on hand and when their supplies expired.

More:

In a new decision, Attorney General Greg Abbott has ordered Texas prison officials to make public previously secret details about the drugs they use in lethal executions.

The five-page ruling dismisses the arguments by the Texas Department of Criminal Justice that the quantities, expiration dates and purchase information should be kept a state secret because it could disrupt the execution process in the state with the busiest death chamber.

The decision represented a victory for disclosure advocates, who had argued that prison officials were incorrect in insisting that making the details public might trigger violent protests outside the execution chamber in Huntsville or even embolden death penalty opponents, if they knew the state was about to run short of the drugs.

TDCJ could release the information, or file suit against the attorney general. If it releases the information, the documents could provide the first details in years about the three drugs Texas uses in executing criminals, information that used to be public but in recent years has been restricted.

No ruling yet on Keller appeal

Austin American-Statesman's Chuck Lindell is reporting that The Texas Supreme Court, which announces its decisions every Friday, did not rule this morning on Judge Sharon Keller’s request to have her ethics rebuke thrown out.

The Supreme Court also did not rule on Keller’s request for an emergency stay extending Monday’s deadline to file a more traditional appeal challenging the July 16 “public warning” from the State Commission on Judicial Conduct. (That appeal is really a request asking Supreme Court Chief Justice Wallace Jefferson to appoint a three-judge panel that would determine if Keller’s rebuke was justified.)

In the matter pending before the Supreme Court, Keller claims she was improperly reprimanded by the 13-member commission, which said Keller failed to properly perform her duties in 2007 when she closed the Court of Criminal Appeals clerk’s office at 5 p.m. despite knowing that defense lawyers wanted to file an appeal in a pending execution.

Keller is asking the Supreme Court to throw out the rebuke and dismiss all charges against her because, she argues, the Texas Constitution forbids the commission from issuing such a warning.

The Supreme Court is currently on hiatus but begins its new term next week. The nine justices can still rule on Keller’s petitions later today or Monday by issuing special orders.

Keller’s petition is here.
The commission’s response is here.
And, just filed yesterday, is Keller’s replyf to the commission’s response.

Austin American-Statesman Recommends Clemency in form of Life Without Parole for David Powell

The Austin American-Statesman is recommending clemency instead of the death penalty for David Powell. Specifically, they recommend that "life without parole would be fair punishment for David Lee Powell". Clemency means to moderate the severity of punishment, which is exactly what the Statesman is recommending.

The decision on clemency will be made soon from the Texas Board of Pardons and Paroles, which can be contacted using the email address: bpp-pio@tdcj.state.tx.us

The contact information for Governor Perry is: (512) 463-1782 or through his email form on his website.

From the Statesman:

Once again, we all must ponder the most serious power the state grants itself, the authority to take a life.

Barring unanticipated intervention by the courts or state officials, David Lee Powell will be executed June 15 for gunning down Austin police officer Ralph Ablanedo in 1978.

The crime was an unconscionable, unforgiveable act by a UT dropout whose promising young life was sidetracked when he got into using and dealing drugs. Now, 32 years and three trials later, Austinites again should remember and mourn the death of Ablanedo, the father of two young sons when Powell killed him.

And, also because 32 years have passed, Texans again should weigh the death penalty to see if it is equitably meted out. We do not believe it is. And we believe this case — as heinous as they come — shows why life without parole is a fairer option as the ultimate punishment.

In order to recommend a death sentence, jurors must decide "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" inside or outside of prison.

The law requires jurors to predict the future. Prosecutors often help by bringing in expert psychiatric testimony. It can be from experts who never examined the defendant.

The Powell case — because of the lag between crime and punishment — shows us how jurors can ultimately be proven wrong. As the American-Statesman's Chuck Lindell and Tony Plohetski reported Sunday, Powell supporters note he has led something of an exemplary life during his many years behind bars, picking up only minor rules infractions while also aiding other inmates. At his 1999 retrial, four guards and a supervisor testified that Powell was no problem in prison. Veteran guard Mark Morrow said Powell was "very quiet, always well-mannered. Not a troublemaker, by any means."

Psychiatrist Seth Silverman of Houston, who treated Powell in recent years and said the inmate responded well to psychotherapy, reported in an affidavit that Powell poses "virtually no risk" of future violence. Silverman also included stats showing how the passage of time decreases the probability of problems with the law: Arrest rates fall 90 percent from age 20 to age 60. Powell is 59.

The passage of time is what makes the Powell case so instructive. There's never been a Texas case with a longer lag between offense and execution. And it is that passage of time that raises important questions about the death penalty.

Whatever it was that caused the initial conclusion that Powell would be a continuing threat has turned out to be wrong. This leads to questions of equal justice. What then of Death Row inmates whose cases do not drag on long enough to prove they are not a continuing threat? Is it fair that the potential vagaries of the judicial process give somebody like Powell three decades to show he is not a continuing threat while other death row inmates don't get that opportunity to prove jurors wrong?

We do not believe Powell should ever draw a breath outside of prison bars. But we do believe his case highlights problems with the death penalty.

It also is a case in which we agree with much of what has been said on all sides.

"Thirty-two years ago, I was responsible for an enormously evil act," Powell told the Statesman, " ... and no apology I could give would be powerful enough to express my regret for that. But every person is more than the worst thing they have ever done, and I am no exception."

Judy Mills, Ablanedo's widow, said this is "one of those things where nobody wins."

"He will be put to death, and Ralph will still be gone. It's not about feeling better. There is nothing to feel good about," she said.

Bruce Mills, now married to his ex-partner's widow, said. "I don't think it is about deterrent. It is about retribution."

At Powell's 1991 trial, prosecutor Terry Keel told jurors "the death penalty is society's self-defense."

Properly administered, life without parole can serve the same function.

Statesman Editorial Says Hank Skinner Entitled to Delay for DNA Tests

Please call Gov Perry at (512) 463-2000 and urge him to stop the execution of Hank Skinner on March 24, 2010 by granting a 30-day stay of execution so that DNA evidence can be tested. Call anytime day or night and leave message on voice mail.

Austin American-Statesman Editorial Board:

If all goes as planned by the state of Texas, tomorrow will be the final sunrise Henry W. Skinner ever sees. Skinner, 47, is scheduled to be executed at 6 p.m. Wednesday for a brutal triple-murder committed in Pampa on New Year's Eve 1993.

We believe that even the most ardent supporters of capital punishment, confronted with the facts below, will join Skinner in asking Gov. Rick Perry for a 30-day reprieve.

In fact, the most ardent supporters of capital punishment — those most invested in making sure Texas does not execute an innocent person — are the ones who should be leading the call for the delay.

There are seven untested items that contain DNA that could be dispositive of Skinner's claim that he was falsely convicted.

The state has blocked that testing, noting that Skinner passed on a chance to have the testing done prior to his 1995 trial. That decision was made by Skinner's trial lawyer, who, noting that other DNA tests on items found at the crime scene damaged his case, didn't want further testing.

Now, Skinner — represented by the Capital Punishment Center at the University of Texas School of Law — wants Gov. Rick Perry to use his authority to delay the execution for 30 days and order the DNA testing. The Texas Board of Pardons and Paroles, in a 7-0 vote, on Monday recommended against a commutation or reprieve.

Can there be anybody who does not see the reprieve request as a harmless one that should be granted, especially because there is Texas precedent for it?

Jurors, working with testimony including some crucial portions later recanted, convicted Skinner of killing his girlfriend Twila Busby and her sons, Elwin Caler, 22, and Randy Busby, 20, at the Pampa home the four of them shared. Circumstantial evidence offered at the trial was tainted by seeming inconsistencies, including evidence showing Skinner was so incapacitated by drugs and alcohol that it was doubtful he could have stood up, much less kill three people (including the 6-foot-6-inch, 225-pound Busby).

"Evidence developed since Mr. Skinner's trial raises the level of doubt to full-scale alarm that the jury's verdict may very well have been wrong," Skinner's lawyers told Perry in a letter dated March 11 in which they offer a compelling interpretation of facts pointing to another possible suspect — now dead — with possible motive to commit the crime.

And, Skinner's lawyers told the governor, DNA on the untested items could prove whether jurors erred.

"While Texans undoubtedly support capital punishment, they insist that it be reserved for those who are clearly guilty," the lawyers told Perry.

In December 2004, Perry granted a 30-day reprieve for Frances Newton, a death row inmate who maintained her innocence in the shooting deaths of her husband and two children. Newton claimed that retesting of gunpowder residue from the crime scene would clear her.

It did not, and Newton was killed by the state in September 2005.

In granting the Newton reprieve, Perry wrote that "Justice delayed in this case is not justice denied."

Perry is very familiar with the importance of DNA testing. He recently, as a result of DNA evidence, pardoned Tim Cole, who spent 13 years in prison for a rape the tests showed he did not commit. Sadly, as Perry noted, the pardon — the first posthumous one granted in Texas — came nine years after Cole died in prison.

Last Friday, Perry went to Fort Worth to present the pardon to Cole's family.

"It means the world to me to be here today to look you in the eye and tell you that your son is pardoned," Perry told Ruby Session, Cole's mom. "I know that nothing that anyone in this room, this state, or this world can do could restore Tim to life, but we can state clearly, with the full weight of Texas law behind us, that your son was no criminal."

By delaying the Skinner execution and ordering the DNA tests, Perry can make sure that no Texas governor ever has to apologize to Skinner's family.

We agree with former Bexar County District Attorney Sam Millsap, who, weighing in on Skinner's behalf, noted that "DNA evidence could show we've got the wrong man. ... but the state inexplicably has blocked that testing for more than a decade."

Millsap, in a column published in the Houston Chronicle, noted Skinner's lawyers also have asked federal courts to delay the execution.

"But frankly, I'd rather see Texas clean up its own house on this one," Millsap wrote. "Before we send a man to his death, shouldn't we do everything in our power to be certain of his guilt?"

It is not a rhetorical question.

Opponents of death penalty take protest to the Capitol

The Austin American-Statesman has published the following story by Isadora Vail about the Justice Rally during the 2010 Anti-Death Penalty Spring Break.

Sandrine Ageorges-Skinner's husband is scheduled to be put to death Wednesday. On Thursday, she came to Austin to join about 100 other people on the Capitol steps to protest the death penalty in Texas.

"We are in Austin, and you can do something to help him," Ageorges-Skinner said. "Human justice should not kill people."

The Justice Rally, which included marchers brandishing anti-death penalty posters and carrying a full-size coffin, was organized to try to abolish the death penalty, or at least ask for a moratorium. Since 1973, when Texas reinstituted the death penalty, the state has executed 451 inmates.

Ageorges-Skinner's husband, Hank Skinner, was sentenced to death in 1993 for murdering his girlfriend and two sons on New Year's Eve. His family has claimed that DNA found at the crime scene has not been tested. Skinner gained some notoriety in 2008 for being one of a string of death row inmates who had smuggled cell phones into their cells.

Sally Norvell spoke on behalf of David Lee Powell, who was convicted in of killing Austin police officer Ralph Ablanedo in 1978. After 30 years on death row, his execution is slated for June 15.

Norvell said that even when prisoners are guilty, the drawn-out death penalty process amounts to cruelty.

"To have him locked in a cell, in solitary confinement, for more than 30 years and then to bring him out into the light and publicly kill him is just torture," she said.

Powell's longtime attorney, Richard Burr of Houston, has said that in three decades behind bars, Powell has been a model prisoner, teaching other inmates to read and counseling other death row prisoners.

Another speaker, Regina Kelly, said she became interested in abolishing the death penalty after her own experience with the Texas criminal justice system. Kelly, whose story was depicted in the film "American Violet," was falsely accused of drug possession in a West Texas town in 2000.

"My duty is now to start holding each and every person — police officers, lawyers, law makers — accountable for the situations that they put us in," she said. "Until we do something to change the laws, we will forever be making the same mistakes."

Members of Save An Innocent Life, the Texas Moratorium Network, the Abolition Movement, Students Against the Death Penalty and several others participated in the speeches and march.

Statesman: "it's time to address state's flawed system"

"Death penalty: With doubts raised, it's time to address state's flawed system," is the title of Austin American-Statesman's last editorial of 2009.

Like the overdue family chat about the uncle everybody knows is not quite right, it's time for Texas to talk about something many folks know is not quite right.

Whether you support or oppose the concept, there's no ignoring the serious problems in the execution of how we execute people. Eleven Texas death row inmates have been exonerated.

In 2009, we dealt with disturbing developments in the case of Cameron Todd Willingham, executed in 2004 for the slaying of his three children in a fire.

A state-commissioned report said law-enforcement witnesses who offered key testimony "had poor understandings of fire science."

Does that mean Willingham was innocent? Not necessarily. But it does mean that something short of best available science was used.

Texans harbored doubts about the death penalty long before the Willingham controversy. A 2004 Scripps-Howard poll showed 75 percent of respondents favored capital punishment. But 70 percent thought Texas had executed an innocent person at some point.

A year later, legislators added a life-without-parole option in capital cases. There now are 226 inmates serving that sentence, an option between death and life with possible parole.

That option — and increased use of DNA evidence highlighting justice system fallibility — has contributed to a downward trend in death sentences. In fiscal 2009, only 5 percent of capital murder convictions led to death sentences, down from 24.4 percent in 1990.

Despite the changes, the death penalty remains a difficult topic for Texas politicians to discuss in a productive way.

"I think that frankly the people are probably ahead of many of the politicians, and one of the places you see that play out is in local races," said Steve Hall, founding director of the anti-death penalty StandDown Texas Project, noting the decrease in death penalty convictions in Dallas and Harris counties, due in part to relatively new district attorneys.

Is Texas ready to abolish the death penalty, a move New Mexico made last year? Doubtful. But Texans should be ready to address their belief (see poll numbers above) that innocent people have been executed.

We like Houston Sen. Rodney Ellis' "Innocence Protection Package," including measures to increase the reliability of surprisingly unreliable eyewitness identification of suspects and the establishment of an Innocence Commission to review questionable convictions.

The 2009 Legislature approved an advisory panel on wrongful convictions. We look forward to its report to the 2011 Legislature.

March to Abolish the Death Penalty in the News

"Protesters voice concerns about death penalty," is Bobby Longoria's article in today's The Daily Texan.

Hundreds of signs adorned with crossed out nooses and photos of executed men were held by protestors on the steps of the state Capitol on Saturday as they called for the exoneration of executed Texas man Cameron Todd Willingham.

Anti-death penalty activists have gathered in Austin every October since 2000 to show support for the abolition of the death penalty. This year’s March to Abolish the Death Penalty marks the event’s return to Austin after two years in Houston.

The march was sponsored by more than 50 organizations and included appearances by three exonerated men and the families of current death row inmates.

“I’ve lost all my friends, I lost my family and I am angry,” said Curtis McCarthy, who spent 19 years on death row in Oklahoma before being exonerated in May 2007 by DNA evidence. “I know how the family of Willingham feels. I don’t know what to do about it ... I am here. I don’t know what else to do.”

Willingham was a resident of Corsicana who was convicted of capital murder of his three daughters who were killed in a fire at their home Dec. 23, 1991. Willingham was accused of setting the fire and spent more than 10 years in the trial process claiming he was innocent.

After unsuccessful appeals, Willingham was executed Feb. 17, 2004. The incident has been given increased attention after several independent reviews of the arson investigation claim it based its conclusions on faulty reasoning.

Demonstrators also voiced their opposition to Gov. Rick Perry’s comments and actions this month regarding Willingham’s execution.

At a press conference after a Texas Association of Realtors luncheon two weeks ago, Perry called Willingham “a monster” and said that multiple testimonies and the fact that the court upheld the jury’s verdict proved that Willingham was guilty. Perry told the media to not be misled by anti-death penalty “propaganda.”

The Texas Forensic Science Commission hired Baltimore fire expert Craig Beyler to investigate Willingham’s case.

“The investigators had poor understandings of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators,” Beyler said in his August report. “A finding of arson could not be sustained.”

On Sept. 30, two days before the commission was set to meet and review Beyler’s report, Perry removed three members of the commission, including the chairman, who he replaced with Williamson County District Attorney John Bradley. Bradley canceled the Oct. 2 meeting, which has yet to be rescheduled.

“If we had any of the number of experts that have come forth now and given testimony in this case, Todd Willingham would have never been convicted. He would have never been executed. He probably never would have even been tried,” said Walter Reaves, Willingham’s lawyer during the appeals process.

Reaves said he is seeking post-mortem exoneration of Willingham as well as a formal apology. He said that reports by arson experts indicating that Willingham did not set the fire were not given a fair consideration during the appeals process.

“[Lawmakers] need to fix the procedural problems with police and prosecutorial misconduct in this state before we even think about executing people,” said Jeff Blackburn, chief counsel to The Innocence Project of Texas.

After an examination of Willingham’s case, the project believes he was unjustly put to death, Blackburn said.

Multiple families appeared at the event showing support for men currently on death row including Rodney Reed, who is accused of the 1996 rape and murder of Stacey Stites.

“I am out here every chance I get and I am going to keep on doing it even after my brother comes home because the death penalty is wrong,” said Roderick Reed, Rodney Reed’s brother. “I got involved because of my brother, but I am going to stay with it until the end to see it is abolished.”

Bruno Mortan/The Daily Texan
Jane Chamberlain holds her homemade
sign as exonerated prisoners talk about their
experiences on death row during an anti-death penalty
march held on Saturday afternoon.

Joshua Sander's of the Austin American-Statesman has an article in the front page of Sunday's Metro section titled, "Protesters march to call for an end to executions."

Anti-death penalty protesters gathered at the Capitol on Saturday in part to voice their disapproval of Gov. Rick Perry's remarks this month regarding Cameron Todd Willingham, the Corsicana man convicted of setting a fire that killed his three young children on Dec. 23, 1991.

The 10th annual March to Abolish the Death Penalty occurred in the midst of a renewed debate over capital punishment, largely spurred by Willingham's case. Most recently, former Texas Gov. Mark White said the state should reconsider its use of capital punishment "so we don't look up one day and determine that we, as the State of Texas, have executed someone who in fact was innocent."

White's comments came as Perry has been criticized for replacing four members of the Texas Forensics Commission and delaying consideration of a fire scientist's report questioning the 2004 execution of Willingham. Perry has described Willingham as a "monster" and said he is certain of his guilt.

One of the lawyers who represented Willingham in his appeals disagreed.

"Todd Willingham was a person who deserved to be treated fairly, and he didn't get that," said Walter Reaves, Willingham's appellate attorney. "No one could ever make the case that if we knew then what we know now that he would have been convicted, tried and executed."

Jeff Blackburn, founder of the Innocence Project of Texas, a nonprofit group that works to overturn wrongful convictions, said that the Willingham case "represents an opportunity for Texas to fix a broken criminal justice system."

Scott Cobb, president of the Texas Moratorium Network, a nonprofit organization that aims to mobilize support for a moratorium on state executions, said about 50 organizations were responsible for organizing Saturday's march.

The event attracted hundreds of people, who carried signs with photographs of inmates currently on death row and posters bearing slogans such as "Stop All Executions."

About a dozen protesters sat on the steps of the Capitol, holding white posters with lists of the hundreds of inmates who have been executed in Texas since 1982, when the state resumed executions.

Austinite Jeanette Popp, 60, came to the march with a different perspective.

On Oct. 24, 1988, Popp's 20-year-old daughter, Nancy DePriest, was found dead with her hands bound behind her back at the North Austin Pizza Hut where she worked. Two men were wrongfully convicted of her death and served 12 years in prison. They were freed in 2001, after DNA evidence implicated another man.

The confessed killer, Achim Josef Marino, said that he had shot DePriest as part of a satanic sacrifice. Eventually, Popp lobbied for Marino to be spared the death penalty, which he was.

Despite the time that has passed, Popp said, the conversation on capital punishment has not changed.

"It's the 21st anniversary of my daughter's murder, and we're still talking about murdering people with the murdering machine," she said.

jsanders@statesman.com; 445-3630

"Protesters march against the death penalty" is Tristan Hallman's article in the Houston Chronicle and San Antonio Express-News.

AUSTIN — A crowd of anti-death penalty protestors, fueled by the controversy over the 2004 execution of Cameron Todd Willingham and changes to the Texas Forensic Science Commission that is looking into the case, gathered at the steps of the Capitol on Saturday for the 10th annual March to Abolish the Death Penalty.

Dozens of protesters marched down South Congress Avenue and recited chants for an end to capital punishment and declared that Gov. Rick Perry was guilty of homicide. The goal, said Scott Cobb, president of the Texas Moratorium Network, was to make Perry admit to Willingham’s innocence and to end the death penalty, which several speakers called corrupt, racist and biased against the poor.

Willingham was convicted of the murder of his three young daughters by setting fire to his Corsicana home in 1991. Recent investigations have questioned the charge of arson.

“We’re certainly convinced now after a review by expert scientific investigators that there is no evidence of arson,” Cobb said.

Joining the protesters were exonerated ex-death row inmates Curtis McCarthy, Ron Keine and Shujaa Graham. Corey Session, brother of Timothy Cole, a man who died in a Texas prison in 1999, spoke as well. Cole’s posthumous exoneration has led to the creation of the Timothy Cole Advisory Panel on Wrongful Convictions, which held its first meeting Friday. Session said he believed Willingham would be exonerated if his case were heard by an advisory panel.

Willingham’s appellate attorney, Walter Reaves, and Willingham’s pen pal and frequent death row visitor, Elizabeth Gilbert, spoke at the event. Gilbert, who said she has three binders full of letters from Willingham, said that after looking into his case, she’s convinced of his innocence.

“Todd was a very caring person,” said Gilbert, who began corresponding with and visiting Willingham in 1999 after getting his information at an anti-death penalty demonstration in Philadelphia. “He was a considerate, polite, funny, smart person. He was a real human being.”

Eugenia Willingham, mother of Willingham, originally was scheduled speak but decided not to. She said she canceled at the last minute in part because she was tired and the drive from her home in Ardmore, Okla., was long. She also said she didn’t want to be a distraction from the focus on her son’s case.

However, Willingham said she also isn’t entirely against the death penalty.

“I feel there probably should be a death penalty,” she said. “But I feel like the system should be reformed in a way so that innocent people aren’t executed. I feel like there are too many people on death row that are innocent.”

Although there had been speculation that the case against Willingham was flawed, much of the national attention on Willingham came after Perry’s decision to not reappoint four state forensic panelists while they were investigating the case. Perry said they were replaced because their terms had expired.

Craig Beyler, a Maryland-based arson expert who had been hired by the Forensic Science Commission, has spoken out against Perry’s action and, in his report, questioned the finding of arson.

Perry responded to Beyler’s criticism by calling Willingham a “monster” and saying Beyler is politically motivated. Beyler has denied those claims.

Perry spokesman Allison Castle said Perry stands by his support for the death penalty. Castle noted that Willingham’s conviction was upheld by nine courts and the death penalty has been upheld as a punishment by the U.S. Supreme Court.

"Death penalty opponents rally at Capitol" is Jay Root's article for the Associated Press.

AUSTIN — Death penalty opponents, convinced an innocent man was executed in 2004, staged a rally Saturday at the Texas Capitol to call for a moratorium on capital punishment and to highlight the controversial case of Cameron Todd Willingham.

Willingham was convicted of capital murder for the 1991 deaths of his three children in a fire at their Corsicana home. Forensic scientists have called into question arson evidence used to convict Willingham, who maintained his innocence until his death by lethal injection.

Dozens of protesters marched from the Capitol down Congress Avenue, waving placards and chanting “Hey hey, ho ho, the death penalty has got to go.”

Organizers of the rally said they want to bring attention to the Willingham case and Gov. Rick Perry's shakeup of the commission that was investigating the science used to convict him.

“We urge the people and the governor to take a look at this case and examine the new evidence,” said Scott Cobb, president of the Texas Moratorium Network. “There is no scientific evidence of arson in this case, and if there was no arson, there was no crime ... We want Texas to admit that it's made a tragic mistake here.”

The governor has come under fire for replacing members of the Texas Forensic Science Commission just before they were to review a new report critical of the arson science used in the capital murder case. Perry has dismissed the criticism as anti-death penalty propaganda, and says the panel will move forward with the investigation. Speaking at a news conference this month, Perry called Willingham a “monster” who beat his wife and then killed his children.

One of the speakers at the event, Willingham friend Elizabeth Gilbert, said she was sickened by Perry's comments. Gilbert, a Houston teacher, befriended Willingham when he was behind bars and became his advocate, helping to spearhead a re-examination of his case.

“They are still continuing to throw mud at Todd to keep people's attention away from the fact that there wasn't an arson case,” she said.

Perry spokeswoman Allison Castle, noting that Willingham's conviction was upheld despite numerous appeals, said the governor believed he was guilty.

“Like most Texans, Gov. Perry supports the death penalty for those who commit the most heinous crimes,” she added.

Willingham's mother, Eugenia Willingham, had been scheduled to speak at the rally but was unable to attend. In a written statement released by event organizers, she told of letters she had received from death row inmates saying her son's execution has caused appeals courts to take a closer look at their cases.

“This won't bring Todd back, but I take comfort in knowing that others may be freed because of him,” she wrote.

UPI: "Texans rally against death penalty"

AUSTIN, Texas, Oct. 25 (UPI) -- Anti-execution activists say the state of Texas must end its death penalty practices.

The 10th annual March to Abolish the Death Penalty held Saturday in Austin drew hundreds of anti-death penalty activists, many spurred by the case of Cameron Todd Willingham, who was executed in 2004 after a scientific report cast doubt on his 1991 triple murder conviction, the Austin American-Statesman reported.

Texas Gov. Rick Perry has been criticized for allegedly failing to read a fire scientist's report questioning Willingham's then-pending execution for the deaths of his three daughters in a house fire. Perry has responded by describing Willingham as a "monster" and saying he is certain of his guilt.

Jeff Blackburn, founder of the Innocence Project of Texas, attended the march and told the American-Statesman the Willingham case "represents an opportunity for Texas to fix a broken criminal justice system."

The newspaper said some protesters carried posters bearing the names of hundreds of inmates executed in Texas since 1982.

Letters to the Editor: Obstruction of justice?

The Austin American-Statesman has published several letters, including one from Allison Dieter of Texas Moratorium Network in response to Gov. Perry move to cover up the case of Cameron Todd Willingham.

Obstruction of justice?

Re: Oct. 1 article "Governor shakes up forensic agency."

The case of Cameron Todd Willingham is apparently scaring pro-capital punishment forces, including Gov. Rick Perry.

Why should anyone be afraid of the truth? Pulling off members of the Texas Forensics Science Commission just as they are about to review the evidence that an innocent man might have been convicted of killing his own children is a travesty.

Those who say that Texas justice is an oxymoron must be having a field day with this case and our governor's apparent obstruction of its progress.

Roger Olson

Waco

It appears that the execution of innocent people is a partisan issue in Texas.

Facing the possibility that he was indeed responsible for the execution of an innocent man, Perry has removed the members of a commission trying to get at the facts and replaced them with political friends who will reveal only what he wants them to reveal.

However, Perry cannot bury the truth. It is already out there for all to see. All he can do is bury his own political future.

Alison Dieter

Austin

With the recent shameful behavior by Perry — firing those who might embarrass him for executing an innocent man, which led to the canceling of the meeting at which a fire scientist was scheduled to speak about the Willingham case — isn't it time that Travis County, the so-called "liberal oasis" of Texas, show its reasoned sense of true justice by calling off the blood lust?

We are the last of the democratic nations to engage in this antiquated and shameful practice of putting people to death. Enough.

Sally Norvell

Alameda, Calif.

Packing the Forensic Science Commission with his gang to justify a possible miscarriage of justice is a classic Nixonesque act. Perry should be impeached and prosecuted for malfeasance of office.

I have lived through a dozen or more governors, but he is the worst by a mile.

Bob Bledsoe

Austin

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.

Was the Law of Parties Provision in HB 2267 Scuttled Based on Misinformation?

First published on the Stop Executions blog.

by Scott Cobb

The Law of Parties provision of HB 2267 was taken out of the bill in the Senate Criminal Justice Committee yesterday after Governor Perry threatened to veto it if the bill was sent to him in the same form that it passed the House last Friday. I am concerned based on a couple of quotes in newspaper articles that the Law of Parties provision was scuttled based on misinformation and misunderstanding about the Law of Parties and about HB 2267.

For instance, the Austin American-Statesman has a quote from Williamson County Attorney John Bradley that indicates that he does not understand what the Law of Parties is and how HB 2267 would have affected it. He says in the Austin American-Statesman: "To exempt all defendants in capital cases because they didn’t pull the trigger “is irrational,” said Williamson County District Attorney John Bradley. “Under that reasoning, Hitler, Osama bin Laden and Charles Manson could never get the death penalty. You have to look at the facts of each case … whether their participation merits holding them culpable".

People like Hitler, Manson and Osama bin Laden would not have been prosecuted under Section 7.02(b) of Texas' Law of Parties, which is the section that would have been affected by HB 2267. Furthermore, for those people who are and would continue to be prosecuted under section 7.02 (b) (again not Hitler, Manson or bin Laden), HB 2267 would still hold them culpable, it just would limit the maximum punishment for non-killers convicted solely under that section to life in prison without parole.

HB 2267 said

(b) A defendant who is found guilty in a capital felony case only as a party under Section 7.02(b), Penal Code, may not be sentenced to death, and the state may not seek the death penalty in any case in which the defendant's liability is based solely on that
section.

Bradley's statement is one of the most absurd, irresponsible comments by a legal professional that I have ever heard. It is no wonder that prosecutors were able to get Perry to threaten to veto HB 2267 if they were telling lies like Bradley.

The Law of Parties in section 7.02 (b) says "If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy".

That section, together with Article 37.0711 of the Code of Criminal Procedure, allows the state to prosecute and sentence to death people who have no intent to kill and who in fact do not kill anyone, people like Kenneth Foster, Jr and Jeff Wood.

The Austin American-Statesman has a front page article in today's paper that also contains misinformation from Austin lawyer William "Rusty" Hubbarth, vice president of Justice for All. Hubbarth claims that a 1992 murder-for-hire case was a law of parties case, but he is wrong about murder-for-hire falling under the Law of Parties statute. The article says:

Austin lawyer William "Rusty" Hubbarth, vice president of Justice for All, a national victim advocacy group based in Houston, applauded the veto threat.

"I congratulate Gov. Perry for showing he has the courage to protect the interests of victims," Hubbarth said.

The problem with the bill, he said, was letting all capital co-defendants off the hook if they didn't pull a trigger.

As proof, he cited a 1992 case in which a husband hired a hit man through Soldier of Fortune magazine to kill his wife; the husband was convicted of premeditated murder and sentenced to death.

Hiring someone to kill someone else is not a Law of Parties case. Murder for remuneration is itself a capital crime in Texas.

A person who who hires someone to kill another person is charged with capital murder under section 19.03 of the Texas Penal Code, not under Section 7.02 of the Texas Penal Code, which is the Law of Parties section. Both the hiring of the person and the one who actually commits the murder is charged with capital murder and can receive the death penalty.

The Law of Parties is a different concept in which a person can be charged with capital murder if they are participants in another felony, such as robbery, and in the course of that first felony, an accomplice commits a second felony (murder), then anyone who was an accomplice in the first felony (robbery) can be charged with the second felony (murder), because the law says they "should have anticipated" that a murder could occur.

Law of Parties cases are very rare. There have been only 3 Law of Parties executions in Texas out of the total of 438 executions, which is less than one percent.

The Statesman is doing a disservice to its readers by publishing misinformation from people like Bradley and Hubbarth. Ignorant misinformation given out by an elected county attorney like Bradley is particularly appalling. A newspaper has an obligation to correct false information it gives out, so that its readers can make informed judgments about public policies reported in the news. It is just this sort of false understanding of the Law of Parties that leads some people to oppose ending the death penalty under the Law of Parties without understanding what the Law of Parties actually is. It is a law that allows people who have not killed anyone and who had no intention to kill anyone to be sentenced to death.

Bradley and Hubbarth made their statements for the Statesman after the action in yesterday's committee meeting, but I am concerned that similar misinformation may have been spread before the committee meeting. In light of the possibility that the Law of Parties provision in HB 2267 was taken out based on a misunderstanding of the bill and of the Law of Parties, I urge senators to have an informed discussion of the Law of Parties when HB 2267 reaches the floor of the senate and to then decide based on actual facts whether the Law of Parties provision should re-attached by amendment to HB 2267.

Shanda Perkins nomination busted

In a rare public rebuke to Gov. Rick Perry, the Texas Senate this afternoon blocked Perry’s nomination of unemployed Burleson banker Shanda Perkins to become a member of the state Board of Pardons and Paroles.

After a brief debate, the GOP-controlled Senate by a 24-7 vote sent the nominee of fellow Republican Perry back to the Nominations Committee, where it is expected to die.

While Perkins’ lack of qualifications were cited as a reason for the surprise move, several senators said Perkins’ involvement in a 2004 controversy over the sale of sex toys in her hometown of Burleson was a factor.

Click here for Mike Ward's article in the Austin American-Statesman. Click below to see Whitmire in action.

Sharon Keller Questions

Chuck Lindell of the Austin American-Statesman has answered a few common questions regarding Judge Sharon Keller.

Why didn’t Keller send the request for more time to Judge Johnson?

After all, Johnson was the duty judge assigned to handle Richard’s case. It was her responsibility to review all late filings and poll the court’s nine judges about whether to grant or deny relief.

Keller, however, didn’t know which judge was assigned to Richard’s case, said her lawyer, Chip Babcock (photo). Keller believed she was being asked a matter of policy — Does the clerk’s office close at 5 p.m.? — that was unrelated to the specific case, Babcock said.

“She just thought she was being asked an administrative question. She certainly didn’t think she was having a discussion about whether or not (Richard’s lawyers) could file or not file,” Babcock said.

But Michol O’Connor — a former Texas appeals court judge who recently testified in favor of a House impeachment investigation of Keller — said Keller had a responsibility to refer Marty’s call to the duty judge.

“She should’ve said, ‘Why are you calling me? I’m not the assigned duty judge for this case,’” said O’Connor, author of several textbooks on practicing appellate law in Texas.

And what about Marty? He assigned the duty judges, so why did he call Keller instead of Johnson? And why did he fail to tell Johnson about the request to file an after-hours brief, even though he and Johnson spoke later that night? (Johnson was one of three judges working late in anticipation of just such a filing.) Marty, however, has refused to answer reporter questions about the Richard case, so we may have to wait until Keller’s trial in August to hear from him.

Why didn’t Richard’s lawyers call Johnson directly to file their brief?

Because they didn’t know Johnson was their judge. The name of the duty judge is always kept confidential. All Texas appeals courts follow the same procedure to discourage improper communication between judges and lawyers or the public.

In fact, several lawyers who have spent decades working on death penalty appeals say they didn’t even know there was a duty judge assigned to each case.

Next time:

Why didn’t Richard’s lawyers start calling every judge on the court and ask them to accept the late briefs? Appellate rules allow for such a practice.

Statesman: Compensation for unjust convictions in Texas

The following is the Austin American-Statesman's editorial in support of the Timothy Cole Act, which passed the House last week and is waiting for the Senate's vote.

Compensation for unjust convictions in Texas
Timothy Cole Act would honor signature victim of wrongful conviction who died
in prison.

It's rightly being named the Timothy Cole Act. And if it's passed by the
Legislature, which it should be, it will be the influence of Cole — who died a
decade ago while in prison — that gave it the momentum to become law.

Under the measure, compensation for people who were wrongfully imprisoned
would increase to a lump sum payment of $80,000 per year of incarceration, up
from the current $50,000. It would direct payments to the next of kin in cases
in which those who were wrongfully jailed die before they were exonerated.

This is a good bill that the House passed last week. Now it's up to the Texas
Senate to follow suit, and the chances look good, according to Senate
sponsors, Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston. The bill
could come up for a vote this week.

The legislation is likely to require a constitutional amendment to pardon the
deceased Cole, who spent about 14 years in prison for a crime he did not
commit. The Cole case drew national attention earlier this year, being called
Texas' first posthumous DNA exoneration.

While a student at Texas Tech University in 1985, Cole was convicted of raping
fellow student Michele Mallin. Police zeroed in on Cole, though he did not fit
the profile of the person who had raped several women in the Lubbock area.
Mallin had identified him as her attacker in a rigged lineup, underscoring
problems with eyewitness identification procedures. But this year she joined
Cole's family in seeking post-mortem exoneration for him after DNA evidence
cleared Cole and fingered another person, who ultimately confessed to the
crime. Tragically, it was too late for Cole, who died of asthma behind bars
while serving a 25-year sentence.

The legislation in his name would provide financial compensation to Cole's
mother, Ruby Session, who never gave up pursuing her son's innocence. In
addition to lump sum payments, the bill offers monthly annuity payments for
life, health insurance and 120 hours of tuition courses at a community college
or state university.

If that sounds expensive, consider that it could actually save the state money
by preventing lawsuits and avoiding large settlements and legal fees. Those
who are awarded benefits would forfeit their rights to sue the state. And the
legislation would not reward people who were exonerated but went on to commit
other crimes. They would not qualify for benefits.

The best reason to pass the legislation is because it is the right thing to
do. No one can give back the time or erase the miseries endured in prison. And
Texas leads the nation in the number of people, 38, who have been exonerated
by DNA testing. Perhaps attaching a cost to wrongful convictions will help
improve the legal system.

In any case, Texas owes compensation in the way of money and benefits to those
whose lives were unjustly disrupted and destroyed by guilty verdicts and
prison. That is the least we can do.

Statesman: New claims in Bastrop murder appeal

Rodney Reed's lawyers have cited new allegations of sexual misconduct against Jimmy Fennel in their latest appeal. Austin American Statesman has more details about the case.

Reed was convicted in the 1996 Bastrop County murder of Stacey Stites, who was Fennell's fiancée at the time. Reed has maintained his innocence, and his lawyers have suggested that Fennell committed the crime.

The appeal continues the bid by Reed's lawyers to reveal Fennell, who is serving 10 years in prison for kidnapping and improper sexual activity with a person in custody, as a sexual predator with a history of abusing women.

The Texas Court of Criminal Appeals has twice in recent months turned back bids by Reed for a new trial.

Filed Tuesday, the latest appeal includes fresh allegations from police reports, including that Fennell forced a woman he met during a traffic stop in July 2007 to have sex with him, that Fennell abused his wife and that he stalked a woman in Giddings in 1997.

"Jimmy Fennell has been a sexual predator for years," said Bryce Benjet, one of Reed's lawyers. "What we have been asking for is a chance for a jury to hear all of the facts in this case."

Fennell's criminal defense lawyer, Bob Phillips, called the additional accusations "questionable in their reliability."

The appeal also includes a vague account of a woman who said she may have seen Reed and Stites together before the killing, potentially significant evidence given Reed's assertion that his DNA was found on Stites' body because the two had a secret relationship.

Benjet said he has not had time to investigate the woman's account.

Stites, 19, was raped and strangled on April 23, 1996, before her 3:30 a.m. shift at a Bastrop H E B. Her body was found on the side of rural Bluebonnet Drive, off FM 1441 near Lake Bastrop.

Reed initially denied knowing Stites but then at trial said the two had been in a relationship. Fennell was a Giddings police officer at the time.

Reed's lawyers have included in previous appeals accusations that Fennell asked a female driver to provide him a lap dance after a 2004 traffic stop and of keeping a MySpace page with sexually explicit and violent images. A former girlfriend accused Fennell in a court affidavit of verbal abuse, racial bigotry and stalking.

The allegations included in Tuesday's appeal surfaced after police arrested Fennell in 2007 and accused him of forcing sex on a woman he met during a domestic disturbance call. When that arrest made the news, calls came in to Williamson County sheriff's investigators and Texas Rangers on the case, said Williamson County District Attorney John Bradley.

Bradley said that the accusations were considered at sentencing but that he did not seek an indictment because they were not the strongest and most serious cases against Fennell.

Because Fennell has been sentenced and his victim last month settled her lawsuit against the City of Georgetown for $100,000, Reed's lawyers recently obtained the entire police investigation of that case, Benjet said.

Among the allegations laid out in the report:

Wendy Smith Wallace told police that in 1996 or 1997, Fennell followed her in a police car while she was riding her bike in Giddings. He stopped when she got to her house, the report said.

• Keith Tubbs, who worked with Fennell's wife, Aida Fennell, sometime before 2004, told police that she once showed up with bruises on her face that she said came after Fennell threw a phone at her.

In March 2007, Fennell brought a woman he detained during a traffic stop to the Georgetown police station and made her strip, the woman told police. He later drove her to a secluded place and forced her to have sex with him in exchange for avoiding arrest, she told police.

In August 2007, Fennell told a woman parked outside a drug house that he found drugs in her car, she told authorities. He did not arrest her but told the woman that he would be at her house at 3 a.m. for what she interpreted as a sexual rendezvous, she said, but he never showed up, the report said.

"We had investigated them thoroughly, and I was prepared to aggressively refute them in trial, and the state knew that," Phillips said. "I think they had very little confidence in the reliability of these outcries."

Pastor: Stop executions

In offering Monday's prayer in the House, the Rev. Michael Piazza of Dallas used the podium to back a moratorium on the death penalty. Just briefly.

Before starting his prayer, Piazza, pastor of the Cathedral of Hope church, noted that more than 1,000 members of his congregation had signed a petition seeking a moratorium and asked lawmakers to consider such a move.

After the amen, there was no rush to do so in the state with the nation's most active execution chamber.

Source: Austin American-Statesman

Weekend Editorials on Sharon Keller

The Austin American-Statesman's editorial says that Sharon Keller should not resign and should stand trial, because "at trial, the sordid events of Sept. 25 would be aired before Texas and the world. Keller's cold-blooded and process-centered approach to justice would be on vivid display. A trial would expose Keller's heartless missteps to a fascinated world."

The all-Republican Court of Criminal Appeals is this state's court of last resort in criminal cases, and its reputation for rubber-stamping convictions was well-established before Richard's appeal was rejected. Putting the most important criminal judge in Texas on trial for misconduct is an opportunity to expose the court's long record of callous and reckless disregard for defendants' rights.

...

Keller's defense is a distinction without a difference. And it perfectly illustrates her focus on process over justice. Keller did not tell the other judges that she refused to accept the appeal nor did she refer Richard's plea to Judge Johnson. Every one of those missteps and others would be intensely examined in a trial and should result in her removal from office.

This issue has never been about Richard's guilt or innocence, but about the lack of common decency in refusing his appeal because it would arrive after 5 p.m. Keller should answer for her actions in a public trial.

The San Antonio Express-News in its Sunday editorial called the the misconduct charges against Texas Court of Criminal Appeals President Judge Sharon Keller a "welcome development."

Keller's actions drew an immediate outcry. Even the most passionate death penalty advocates want the judicial system to operate fairly, and Keller denied Richard reasonable access to the court.

The Hearst Austin Bureau reported that the charges against Keller mark “the first case that could result in a public trial and possible removal of a statewide judge.”

Keller has 15 days to file a response, and the case could lead to trial before a special master, Hearst reported.

While Keller's actions in the Richard case violate our sense of justice, she deserves her day in court on the charges.

Regardless of the outcome, the State Commission on Judicial Conduct deserves kudos for having the courage to act in this situation. Public confidence in the system's ability to police itself should be bolstered by the commission's action.

The Houston Chronicle columnist Rick Casey explains the trial process and Sharon Keller's options. "If Keller doesn’t like what these judges decide she can appeal to the state Supreme Court — if her lawyers get their filings in on time."

Based on the evidence it heard during these “informal hearings,” the court could have gone so far as to publicly reprimand Keller. Instead, at least seven members voted in December to initiate a process that could lead to Keller’s removal. Willing cautioned that the vote doesn’t signal that the commission thinks Keller should be removed. It may be that they seek more information that may result from the more adversarial process to come.

It will begin with the appointment of a “special master” by Chief Justice Wallace Jefferson of the state Supreme Court. The master could be from a district court or an intermediate court.

That judge will conduct in public what will look very much like a civil trial, with John McKetta III, an Austin lawyer who will serve without pay as the lead “prosecutor” for the commission, and a lawyer for Keller putting on witnesses for examination and cross-examination.

The special master will then issue a “finding of facts,” but will not decide Keller’s fate. Instead his or her findings will be returned to the commission, which will hear from both sides and possibly take new evidence in a public hearing, and then retire to decide whether to recommend Keller’s removal. That’s right: recommend.

A judge, it seems, must be judged by judges.

So Chief Justice Jefferson will pick by lot a seven-member “review tribunal” from a pool consisting of one member chosen by each of the state’s 14 intermediate courts of appeal. The first picked will be chairman.

The tribunal will hold yet another hearing and possibly take more new evidence, then decide whether to accept the commission’s recommendation or impose a tougher or more lenient sanction.

If Keller doesn’t like what these judges decide she can appeal to the state Supreme Court — if her lawyers get their filings in on time.

Timothy Cole Exonerated of 1985 Rape

Last week Judge Charlie Baird exonerated Timothy Cole of the 1985 Lubbock rape that sent him to prison. But sadly he was not present during the court hearing to celebrate his exoneration. Because he died in prison 10 years ago. This is the first posthumous exoneration in Texas. Steven Kreytak of Austin American-Statesman reports

In what lawyers in the case say is a first-of-its-kind posthumous DNA exoneration, a judge in Travis County on Friday announced "to a 100 percent moral, factual and legal certainty" that Timothy Cole did not commit the 1985 Lubbock rape that sent him to prison, where he died in 1999. State District Judge Charlie Baird's announcement brought tears and exclamations of thanks from Cole's family. After court adjourned, Baird came down from the bench and embraced some of them.

"We had to come to Travis County, but we got justice," Cole's brother Cory Session said outside court.

Cole's family members joined their lawyers with the Innocence Project of Texas on Friday morning in calling on the Legislature to pass a bill that would standardize the way police conduct photographic lineups to eliminate any potential police bias. They say they blame Lubbock police for influencing Michele Mallin's incorrect identification of Cole as the man who raped her. Mallin joined Cole's family in petitioning Baird to clear Cole's name after she learned last year that another man had confessed to the crime and that DNA tests linked him to the case. A Lubbock court denied their request.

"The worst conclusion anyone can draw from the Timothy Cole case is this shows the court system works," said Jeff Blackburn , an Amarillo lawyer who is the chief Innocence Project lawyer in the case. "This shows our court system does not work."

During the hearing Friday, convicted rapist Jerry Johnson admitted that he raped Mallin in 1985.

"It's been on my heart to express my sincerest sorrow and regret and ask to be forgiven," said Johnson, who is serving life in prison for two other 1985 rapes in Lubbock County.

After Johnson spoke, Baird asked Mallin and Cole's mother, Ruby Session, whether they wanted to address him.

Mallin stood at a courtroom table and scolded Johnson.

"I love knowing that you are going to be spending the rest of your life in prison," Mallin said. "What you did to me is something you should never do to any woman in any time and any place. I am the one with the power right now, buddy."

Then Session, in sharp contrast to Mallin's remarks, spoke to Johnson calmly and slowly.

"Timothy, all he wanted was exoneration and full vindication," she said.

"I want you to know he was a fine young man. I miss his smile, I miss all the hugs and I miss those salutations in those letters I was getting from him. 'Just a few lines for my favorite young lady.' "

Cole, then a 26-year-old Texas Tech student, became a suspect in a string of rapes near the campus when he approached an undercover police officer who was hoping to draw the rapist on a sting. The women who had been raped, including Mallin, were abducted at knife point while leaving or entering their own vehicles. Cole approached the female officer in his own vehicle, flirted with her and gave his name. Mike Ware, a prosecutor in Dallas who testified about his review of the case, said that Cole never should have become a suspect.

Police took a color Polaroid picture of Cole and put it next to five black-and-white photos in a lineup. Mallin, who testified Thursday, said that she picked Cole and said "I think that's him." When she was told she had to be positive, she said she was, she recalled.

Iowa State University Professor Gary Wells , an expert in eyewitness identification, said that the difference in Cole's photo from the others and the comment about being positive encouraged Mallin's answer.

Senate Bill 117, sponsored by Sen. Rodney Ellis, D-Houston, would require that an officer who administers a lineup not be familiar with the case and not know which lineup subject is the suspect. Under the bill, police would also have to record the event.

A handful of states have adopted similar standards.

Detective James Mason, an Austin police spokesman, said a case detective usually conducts lineups. He said there is no departmental policy on lineups, although it is understood that the detective should not display any bias.

skreytak@statesman.com; 912-2946

Statesman: U.S. Court stops execution that Texas courts wouldn't

The Austin American-Statesman has a great editorial today about the Texas Court of Criminal Appeals and Gov. Rick Perry's failure and carelessness to prevent execution of a possibly innocent death-row inmate.

Once again, a federal court has had to intervene to prevent Texas from executing a death row inmate whose conviction is in doubt. The 5th U.S. Circuit Court of Appeals on Monday issued a reprieve to Larry Swearingen, whose execution by lethal injection was scheduled for today.

And once again, Texas courts and officials did nothing to prevent a possible miscarriage of ultimate justice. The Texas Court of Criminal Appeals had denied Swearingen's petition to hear new information from pathologists who reviewed the case. Nor did Gov. Rick Perry issue a reprieve. And Texas Attorney General Abbott opposed Swearingen's appeal to the 5th Circuit, which ruled that Swearingen's petition could be heard by a federal district court.

Expert scientific analysis strongly indicates Swearingen might not have committed the 1998 murder of college student Melissa Trotter, 19. Based on a report by four pathologists, Swearingen's attorney appealed to the state criminal appeals court, the governor's office, the federal appeals court and the U.S. Supreme Court asking for a stay of execution to review the information.

One of those pathologists with a new interpretation of the case is former Harris County Chief Medical Examiner Joye Carter, who performed the autopsy on the victim. Carter says her original estimate of the time of death was wrong, as do several other professionals.

This case is about timing. Trotter was last seen leaving the Montgomery County Community College campus in Conroe with Swearingen on Dec. 8, 1998. Her body was found in Sam Houston National Forest near Conroe on Jan. 2, 1999. She had been strangled, and a portion of her panty hose was found around her neck.

Swearingen was a good bet for the crime. He was twice accused of rape and had been seen with Trotter the day she disappeared. There was other circumstantial evidence implicating Swearingen, too. But if he had killed Trotter and left her in the national forest on Dec. 8 or soon after, the body would have been badly decomposed. Instead it was quite well preserved.

Pathologists, including Carter, say the body could not have been in the forest more than 14 days and likely was there as few as four days before it was discovered. If true, that means Swearingen could not have killed Trotter and left her body in the woods because he had been in jail since Dec. 11 on outstanding traffic warrants.

The science behind the claim that Trotter's body had not been in the forest for more than two weeks is strong. It is based on proven rates of organ decomposition, on insect infestation and other well-tested factors that pathologists use to determine times of death.

This expert analysis presented a strong argument to delay Swearingen's execution until the information can be evaluated. Had the jury heard these scientific facts during Swearingen's trial, it might have rendered a verdict of not guilty.

Despite that, neither the state appeals court, the attorney general nor the governor did anything to prevent the execution of a possibly innocent man. The lack of interest in fairness and justice by the Texas Court of Criminal Appeals in capital cases continues to baffle, frustrate and infuriate.