Early Dallas Exoneree Randall Dale Adams died in Ohio Last Year

Randall Dale Adams in 2001 Calling for a Moratorium on
Executions in Texas.

Early Dallas exoneree Randall Dale Adams died in Ohio last year. Jenna, an intern with the Texas Witness to Innocence was working with me on the case of  Randall Dale Adams last month and noticed that tributes.com has listed him as passed away in Ohio. This was very surprising to me, because I had talked with his wife a month before his death inviting him to to participate in our 2010 fall gathering in Chicago. I sent out an email to several journalist who have interviewed him previously and also several individuals in the anti-death penalty movement who had worked with him previously. Scott Cobb of Texas Moratorium Network contacted Pamela Colloff of Texas Monthly, because she written a story on him recently. She was not aware of his death other than a twitter post the night before by Errol Morris, director of the documentary "Thin Blue Line."

Finally Dallas Morning News, almost a year after his death and thanks to our intern's discovery confirmed that he passed away last year in Ohio because of a brain tumor. Associated Press also has published a short article on his death. In 2001 he testified to a committee in the Texas Legislature for a moratorium bill, helping to convince the committee to vote in favor of stopping executions and studying the system.  

New York Times published a long and well deserved obituary about Randall in last week's Sunday paper. Condolences, memories and tributes can be left here.

NYT Editorial: Co-Victims Against the Death Penalty

The following is last Friday's NYT editorial in support of the death penalty abolition in Connecticut.

As the country has increasingly turned against capital punishment as barbaric and horrifyingly prone to legal abuses, defenders are pointing to the emotional needs of the families of murder victims — “co-victims” to those who study crime — as justification. Many family members, however, have said they want no part of that.

When New Jersey abolished the death penalty in 2007 and New Mexico did in 2009, each did so with the support of co-victims. In Connecticut, the Legislature’s joint Judiciary Committee has now approved a bill that would repeal that state’s death penalty, again with the support of victims’ families.

The family members say that rather than providing emotional closure, the long appeals process in death penalty cases is actually prolonging their suffering. They also say it wastes money and unjustifiably elevates some murders above others in importance. In an open letter to the Connecticut Legislature, relatives of murder victims — 76 parents, children and others — wrote that “the death penalty, rather than preventing violence, only perpetuates it and inflicts further pain on survivors.”

Their arguments were a moving and effective part of the effort that led to the committee’s repeal vote. Now Connecticut’s leaders need to bring these arguments to a wider state audience. A March opinion poll in Connecticut showed that 48 percent of residents favored the death penalty over life without parole, up from 37 percent in 2005.

The increase is not surprising, since news in the state has been dominated by the trials of the murderers in the 2007 home invasion killings in Cheshire. Dr. William Petit Jr., who lost his wife and two children, is an outspoken advocate for the death penalty, arguing that vicious killers should pay with their lives.

We do not minimize the suffering of family members, wherever they stand on the issue. But the facts are undeniable. The death penalty does not deter crime and the long history of legal abuses is well documented. Connecticut’s full Legislature should pass the repeal bill and Gov. Dannel Malloy should sign it into law.

Nicholas Kristof on Kevin Cooper: Framed for Murder?

The following is a piece in support of California death-row inmate Kevin Cooper, by the New York Times Op-Ed columnist Nicholas Kristof.

“California may be about to execute an innocent man.”

That’s the view of five federal judges in a case involving Kevin Cooper, a black man in California who faces lethal injection next year for supposedly murdering a white family. The judges argue compellingly that he was framed by police.

Mr. Cooper’s impending execution is so outrageous that it has produced a mutiny among these federal circuit court judges, distinguished jurists just one notch below the United States Supreme Court. But the judicial process has run out for Mr. Cooper. Now it’s up to Gov. Arnold Schwarzenegger to decide whether to commute Mr. Cooper’s sentence before leaving office.
This case, an illuminating window into the pitfalls of capital punishment, dates to a horrific quadruple-murder in June 1983. Doug and Peggy Ryen were stabbed to death in their house, along with their 10-year-old daughter and an 11-year-old houseguest. The Ryens’ 8-year-old son, Josh, was left for dead but survived. They were all white.

Josh initially told investigators that the crime had been committed by three people, all white, although by the trial he suggested that he had seen just one person with an Afro. The first version made sense because the weapons included a hatchet, an ice pick and one or two knives. Could one intruder juggling several weapons overpower five victims, including a 200-pound former Marine like Doug Ryen, who also had a loaded rifle nearby?

But the police learned that Mr. Cooper had walked away from the minimum security prison where he was serving a burglary sentence and had hidden in an empty home 125 yards away from the crime scene. The police decided that he had committed the crime alone.
William A. Fletcher, a federal circuit judge, explained his view of what happens in such cases in a law school lecture at Gonzaga University, in which he added that Mr. Cooper is “probably” innocent: “The police are under heavy pressure to solve a high-profile crime. They know, or think they know, who did the crime. And they plant evidence to help their case along.”
Judge Fletcher wrote an extraordinary judicial opinion — more than 100 pages when it was released — dissenting from the refusal of the United States Court of Appeals for the Ninth Circuit to rehear the case. The opinion is a 21st-century version of Émile Zola’s famous “J’Accuse.”

Mr. Fletcher, a well-respected judge and former law professor, was joined in his “J’Accuse” by four other circuit judges. Six more wrote their own dissents calling for the full Ninth Circuit to rehear the case. But they fell just short of the votes needed for rehearing.

Judge Fletcher laid out countless anomalies in the case. Mr. Cooper’s blood showed up on a beige T-shirt apparently left by a murderer near the scene, but that blood turned out to have a preservative in it — the kind of preservative used by police when they keep blood in test tubes.
Then a forensic scientist found that a sample from the test tube of Mr. Cooper’s blood held by police actually contained blood from more than one person. That leads Mr. Cooper’s defense team and Judge Fletcher to believe that someone removed blood and then filled the tube back to the top with someone else’s blood.

The police also ignored other suspects. A woman and her sister told police that a housemate, a convicted murderer who had completed his sentence, had shown up with several other people late on the night of the murders, wearing blood-spattered overalls and driving a station wagon similar to the one stolen from the murdered family.

They said that the man was no longer wearing the beige T-shirt he had on earlier in the evening — the same kind as the one found near the scene. And his hatchet, which resembled the one found near the bodies, was missing from his tool area. The account was supported by a prison confession and by witnesses who said they saw a similar group in blood-spattered clothes in a nearby bar that night. The women gave the bloody overalls to the police for testing, but the police, by now focused on Mr. Cooper, threw the overalls in the trash.

This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?

Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr. Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as that.”

That’s a disgrace that threatens not only the life of one man, but the honor of our judicial system. Governor Schwarzenegger, are you listening?

•

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News Coverage of Today's Court of Inquiry in Todd Willingham Case

News reports of today's Court of Inquiry hearing in Todd Willingham innocence case.

The New York Times reports in Family’s Effort to Clear Name Frames Debate on Executions:

But they also say that the hearing is more than symbolic — it could cast in a new light the Lone Star State’s record on executions. And more broadly, they argue, it is a cautionary tale about the power of flawed science to sway a courtroom, and a glaring injustice that could affect debates over the fairness of the death penalty.

That debate has been framed, in part, by a 2006 opinion written by Justice Antonin Scalia of the United States Supreme Court, in which he said that the dissent in a case had not cited “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Many who oppose the death penalty have taken Justice Scalia’s statement as a challenge, and argue that the Willingham case is their proof.

MyFoxAustin



KVUE



The Austin American-Statesman reports:

During an unprecedented hearing completed just before an appeals court ordered it to stop, state District Judge Charlie Baird on Thursday heard from two leading fire experts who said Cameron Todd Willingham, executed in 2004, was convicted based on faulty science.

A jury convicted Willingham in 1992 of killing his three young daughters by setting fire to his Corsicana house. Shortly before his execution, the first in a string of experts found that investigators relied on bogus science to determine that the fire was intentionally set.

"There is not a single item of evidence at that fire scene that would even suggest this was arson," said Gerald Hurst, an Austin chemist who has studied fire for decades.

Lawyers for Willingham's family petitioned Baird last month to pronounce that Willingham was wrongfully executed and to determine whether there is probable cause that state officials committed a crime in their handling of his case just before execution.

After a hearing that lasted a little more than three hours, Baird said he would make a ruling on the case at a later date.

About that same time — just before 5 p.m. — the 3rd Court of Appeals in Austin ordered Baird not to take any further action in the case.

CNN said:

"Given the science that we know today," Scheck said, that testimony is "false, misleading and totally unreliable."
Fire scientist John Lentini, who reviewed the Willingham case after the execution, told Baird that some of the indicators Vasquez relied on to reach his conclusions were outdated at the time -- and nearly all were considered obsolete by the time Willingham was executed.
"A lot of people believed that back in 1991," Lentini said. "Now in 2004, nobody believed that."

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

David Brooks of the New York Times says that David Grann's article on Todd Willingham was the "most powerful essay" he read all year and worthy of a Sidney Award. Read his entire article "The Sidney Awards".

Every year, I give out Sidney Awards to the best magazine essays of the year. In an age of zipless, electronic media, the idea is to celebrate (and provide online links to) long-form articles that have narrative drive and social impact.

and

The most powerful essay I read this year was David Grann’s “Trial by Fire” in The New Yorker. Grann investigated the case of Cameron Todd Willingham, who was executed in 2004 for murdering his three children by setting their house on fire.

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

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

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.

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.

By MICHAEL BRICK for the New York Times

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.

Shrinking Newsrooms Hurts Abolitionist Movement

"Opponents of the death penalty looking to exonerate wrongly accused prisoners say their efforts have been hobbled by the dwindling size of America’s newsrooms, and particularly the disappearance of investigative reporting at many regional papers," the New York Times reports.

In the past, lawyers opposed to the death penalty often provided the broad outlines of cases to reporters, who then pursued witnesses and unearthed evidence.

Now, the lawyers complain, they have to do more of the work themselves and that means it often doesn’t get done. They say many fewer cases are being pursued by journalists, after a spate of exonerations several years ago based on the work of reporters.

The decline in newsroom resources has also hampered efforts by death-penalty opponents to search for irrefutable DNA evidence that an innocent person has been executed in America.

New York Times Editorial: Investigating Judge Keller

February 19, 2009
New York Times
EDITORIAL
Investigating Judge Keller

Sharon Keller, a Texas appellate court judge, made headlines in 2007 when she was reported to have ordered the court clerk’s office to close promptly at 5 p.m., preventing a death-row inmate from filing an emergency appeal. The inmate was executed. A Texas legislator is now trying to impeach Judge Keller for dereliction of duty in that case. A legislative inquiry is long overdue.

On Sept. 25, 2007, lawyers for Michael Richard were at work on a motion to stay their client’s execution. Earlier that day, the United States Supreme Court announced that it would consider the constitutionality of lethal injection. The lawyers were seeking to have Mr. Richard’s execution, which was to be by lethal injection, put off until the Supreme Court issued its ruling.

According to press accounts, Mr. Richard’s lawyers called the court late that afternoon to say they were having computer problems and requested that the clerk’s office stay open 20 minutes past its usual closing time. According to these accounts, Judge Keller denied the request. Mr. Richard was put to death that evening.

Judge Keller has been quoted saying that Mr. Richard’s lawyers did not give a reason for wanting the delay, and that she simply stated that the court closes at 5 p.m.

The case prompted widespread outrage. A group of lawyers filed a complaint with Texas’s State Commission on Judicial Conduct, but more than a year later, the commission, inexcusably, still has not taken any public action. This week, State Representative Lon Burnam introduced an impeachment resolution against Judge Keller, accusing her of “gross neglect of duty” and “willful disregard for human life.”

If the facts are as reported, Judge Keller should be removed from the bench. It would show monumental callousness, as well as a fundamental misunderstanding of justice, for a judge to think that a brief delay in closing a court office should take precedence over a motion that raises constitutional objections to an execution. If the facts have been misreported, the impeachment process would allow Judge Keller to set the record straight.

Impeaching a judge is not a step a legislature should take lightly. It is important that judges be insulated from political pressures so they have the independence necessary to administer justice fairly. But judges cannot be allowed to use their extraordinary discretion to deny litigants the fundamentals of due process. That is especially true if the stakes are literally life or death.

Bob Herbert: What’s the Rush?

Bob Herbert, New York Times' Op-Ed columnist has published a great column about Troy Davis:

Go to Columnist Page »

Troy Davis, who was convicted of shooting a police officer to death in the parking lot of a Burger King in Savannah, Ga., is scheduled to be executed on Tuesday.

There is some question as to his guilt (even the pope has weighed in on this case), but the odds of Mr. Davis escaping the death penalty are very slim. Putting someone to death whose guilt is uncertain is always perverted, but there’s an extra dose of perversion in this case.

The United States Supreme Court is scheduled to make a decision on whether to hear a last-ditch appeal by Mr. Davis on Sept. 29. That’s six days after the state of Georgia plans to kill him.

Mr. Davis’s lawyers have tried desperately to have the execution postponed for those few days, but so far to no avail. Georgia is among the most cold-blooded of states when it comes to dispatching prisoners into eternity.

So the lawyers are now trying to get the Supreme Court to issue a stay, or decide before Tuesday on whether it will consider the appeal.

No one anywhere would benefit from killing Mr. Davis on Tuesday, as opposed to waiting a week to see how the Supreme Court rules. So why the rush? The murder happened in 1989, and Mr. Davis has been on death row for 17 years. Six or seven more days will hardly matter.

Most of the time, the court declines to hear such cases.

If that’s the decision this time, Georgia can get on with the dirty business of taking a human life. If the court agrees to hear the appeal, it would have an opportunity to get a little closer to the truth of what actually happened on the terrible night of Aug. 19, 1989, when Officer Mark Allen MacPhail was murdered.

He was shot as he went to the aid of a homeless man who was being pistol-whipped in the parking lot.

Nine witnesses testified against Mr. Davis at his trial in 1991, but seven of the nine have since changed their stories. One of the recanting witnesses, Dorothy Ferrell, said she was on parole when she testified and was afraid that she’d be sent back to prison if she didn’t agree to finger Mr. Davis.

She said in an affidavit: “I told the detective that Troy Davis was the shooter, even though the truth was that I didn’t know who shot the officer.”

Another witness, Darrell Collins, a teenager at the time of the murder, said the police had “scared” him into falsely testifying by threatening to charge him as an accessory to the crime. He said they told him that he might never get out of prison.

“I didn’t want to go to jail because I didn’t do nothing wrong,” he said.

At least three witnesses who testified against Mr. Davis (and a number of others who were not part of the trial) have since said that a man named Sylvester “Redd” Coles admitted that he was the one who had killed the officer.

Mr. Coles, who was at the scene, and who, according to authorities, later ditched a gun of the same caliber as the murder weapon, is one of the two witnesses who have not recanted.

The other is a man who initially told investigators that he could not identify the killer. Nearly two years later, at the trial, he testified that the killer was Mr. Davis.

So we have here a mess that is difficult, perhaps impossible, to sort through in a way that will yield reliable answers. (The jury also convicted Mr. Davis of a nonfatal shooting earlier that same evening on testimony that was even more dubious.)

There was no physical evidence against Mr. Davis, and the murder weapon was never found. As for the witnesses, their testimony was obviously shaky in the extreme — not the sort of evidence you want to rely upon when putting someone to death.

In March, the State Supreme Court in Georgia, in a 4-to-3 decision, denied Mr. Davis’s request for a new trial. The chief justice, Leah Ward Sears, writing for the minority, said: “In this case, nearly every witness who identified Davis as the shooter at trial has now disclaimed his or her ability to do so reliably.”

Amnesty International conducted an extensive examination of the case, documenting the many recantations, inconsistencies, contradictions and unanswered questions. Its report on the case drew widespread attention, both in the U.S. and overseas.

William Sessions, a former director of the F.B.I., has said that a closer look at the case is warranted. And Pope Benedict XVI has urged authorities in Georgia to re-sentence Mr. Davis to life in prison.

Rushing to execute Mr. Davis on Tuesday makes no sense at all.

Texas Panel Rejects Plea to Halt Execution of Accomplice in 1996 Murder

The New York Times is reporting that Governor Perry "hasn’t made a decision" on whether to grant a 30 day stay of execution for Jeff Wood. So, please call his office and urge him to issue a stay.

Please call the Governor of Texas at 512-463-2000

Office of the Governor Fax: (512) 463-1849

Tell the Governor to Issue a 30-day Stay of Execution to Jeff Wood

Jeff is Scheduled for Execution Thursday, Aug 21, so CALL NOW!

Send an Email to Governor Perry Through His Website

By JAMES C. McKINLEY Jr.

Published: August 19, 2008

HOUSTON — Jeffrey Lee Wood is sentenced to die this week for the murder of a store clerk during a robbery, even though he was sitting in a truck outside the convenience store when it happened.

Mr. Wood is the latest person to face the death penalty under a Texas law that makes accomplices subject to the death penalty if a murder occurs during a crime.

His lawyers say Mr. Wood is a gullible man of limited intellect who suffers from delusions. In their view, Mr. Wood was never mentally competent to stand trial in the first place.

Nor, they argue, was Mr. Wood aware that his partner in the robbery, David Reneau, was carrying a gun, according to testimony presented at Mr. Reneau’s trial but never brought up during Mr. Wood’s trial.

These arguments failed to sway the Texas Board of Pardons and Paroles, however. On Tuesday afternoon, the seven-member board unanimously rejected a petition from Mr. Wood’s lawyers for a commutation of his sentence.

That means he will be executed Thursday evening, unless Gov. Rick Perry grants a 30-day reprieve or a judge issues a stay. “The governor hasn’t made a decision,” Mr. Perry’s spokeswoman, Allison Castle, said.

Mr. Wood, who is 35, also lost a motion before the Texas Court of Criminal Appeals on Tuesday. His lawyers had asked the court to appoint a lawyer to pursue the argument that Mr. Wood lacks the mental competence to be executed.

Mr. Wood and Mr. Reneau were tried separately for the killing of Kriss Keeran, a 31-year-old cashier who was shot in the forehead during the robbery of a gas station and convenience store in Kerrville, Tex., on Jan. 2, 1996.

Mr. Reneau was executed in 2002.

The two robbers were roommates and knew the victim. Evidence at the two trials showed the pair had planned the robbery for about two weeks and had talks with Mr. Keeran and an assistant manager at the store, William Bunker, about staging a fake robbery.

But that plan went awry, and Mr. Reneau ended up walking into the store and shooting Mr. Keeran between the eyes with a .22-caliber pistol while Mr. Wood waited outside.

Then he and Mr. Wood carried the store safe and the store’s security camera out and retreated to a house belonging to Mr. Wood’s parents, where they tried to break open the safe. At the house, Mr. Wood bragged to a relative about the robbery.

A jury found Mr. Wood incompetent to stand trial after listening to testimony from a psychiatrist who said Mr. Wood was delusional and could not grasp reality. But after Mr. Wood spent a short stint in a mental hospital, a second jury found him competent. The judge did not let Mr. Wood’s lawyers cross-examine some witnesses at that hearing.

After his conviction, Mr. Wood wanted to represent himself in deliberations on his sentence, but the judge refused. Mr. Wood ordered his lawyers not to cross-examine any witnesses in the proceeding, a decision his lawyers at the time called “a gesture of suicide.” The jury voted for the death penalty.

Lucy Wilke, the Kerr County assistant district attorney who prosecuted Mr. Wood, did not return calls from a reporter. After Mr. Wood’s trial in 1988, she said that he was “not a dummy” and that the slaying was “cold-blooded, premeditated.”

Under the Texas “law of parties,” the question of whether Mr. Wood anticipated the murder is important. People who conspire to commit a felony are all responsible for an ensuing crime, like murder, if it can be shown they should have known it would happen.

The United States Supreme Court has upheld the principle, ruling in 1987 that the Constitution does not forbid the death penalty for a defendant “whose participation in a felony that results in murder is major and whose mental state is one of reckless indifference.”

At least seven people have been executed in the United States since 1985 for being accomplices in crimes during which one of their partners committed murder, according to the Death Penalty Information Center. Three of those were executed in Texas.

David R. Dow, a law professor in Houston who oversees the Texas Defenders Project, which is trying to forestall the execution, said he doubted Mr. Wood was mentally competent to stand trial, much less that he knew in advance the murder would happen. In addition, Mr. Dow said, he did not receive proper legal representation during the sentencing phase.

“This case has in it virtually every feature that makes the death penalty system in Texas so scandalous,” he said.

Texas executed Jose Medellin

Texas executed Jose Medellin tonight despite the International Court of Justice order to halt the executions. Here is the NYT article on the execution:

HOUSTON — In a case that has drawn international attention, Texas executed José E. Medellín on Tuesday night in defiance of an international court ruling and despite pleas from the Bush administration for a new hearing.

The execution came just before 10 p.m. Central time, shortly after the United States Supreme Court denied a last request for a reprieve. Protesters for and against the death penalty clamored in the rain outside the Huntsville Unit, about 70 miles north of Houston, where Mr. Medellín was executed by lethal injection.

“I’m sorry my actions caused you pain,” he said to the witnesses present. “I hope this brings you the closure that you seek. Never harbor hate.”

Gov. Rick Perry, a Republican, rejected calls from Mexico and Washington to delay the execution, citing the torture, rape and strangulation of two teenage girls in Houston 15 years ago as just cause for the death penalty.

Mr. Medellín and five other teenage boys in his street gang took part in the rape and murder of the girls, Elizabeth Pena, 16, and Jennifer Ertman, 14. The gang raped the girls for an hour, then strangled them. Their corpses were found two days later.

Two other members of the gang were also sentenced to die. Two had their sentences commuted to life in prison. The sixth, Mr. Medellín’s brother, Vernacio, is serving a 40-year sentence.

Mr. Medellín’s case has become the focal point of a dispute between Mexico and the United States over whether some Mexicans have been denied fair trials because they were never given an opportunity to talk to a consul. A 1963 treaty requires foreigners accused of crimes to be given that opportunity.

Over the last five days, Mr. Medellín’s lawyers tried to stop the execution by arguing to the Supreme Court that it should be put off until Congress had a chance to pass pending legislation that would require a review of similar cases. They argued that Mr. Medellín would be deprived of life without due process if he died before Congress acted.

But the court, in a 5-to-4 decision, said the possibility of Congressional action was too remote to justify a stay. Justice Stephen G. Breyer wrote in dissent that to permit the execution would place the United States “irremediably in violation of international law and breaks our treaty promises.”

Mexico opposes the death penalty and has used the Vienna Convention on Consular Relations to try to block the executions of Mr. Medellín and 50 other Mexicans in the United States. Moments after the execution, Mexico sent a formal diplomatic protest to Washington.

Twice in the last five years, the International Court of Justice, at the Hague, has said hearings should be held to determine if the 51 trials were fair.

Worried about fallout for Americans abroad, the State Department, the attorney general and the White House all urged Texas to delay the execution.

Justice Stevens renounces death penalty

Justice John Paul Stevens who in 1976 announced an opinion allowing resumption of the death penalty, has now turned against the death penalty making him the only abolitionist person in the court. Here is NYT's article about this issue.

By LINDA GREENHOUSE

WASHINGTON — When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case. For those accustomed to watching Justice Stevens, it was a familiar sight.

But there was something different that no one in the room knew except the eight other justices. In the decision issued 30 minutes earlier in which the court found Kentucky’s method of execution by lethal injection constitutional, John Paul Stevens, in the 33rd year of his Supreme Court tenure and four days shy of his 88th birthday, had just renounced the death penalty.

In an opinion concurring with the majority’s judgment, Justice Stevens said he felt bound to “respect precedents that remain a part of our law.” But outside the confines of the Kentucky case, he said, the time had come to reconsider “the justification for the death penalty itself.”

He wrote that court decisions and actions taken by states to justify the death penalty were “the product of habit and inattention rather than an acceptable deliberative process” to weigh the costs and risks of the penalty against its benefits.

His opinion, which was not separately announced in the courtroom, was the culmination of a remarkable journey for a Republican antitrust lawyer.

During his tenure, Justice Stevens, originally an opponent of affirmative action, has changed his views on that and other issues. “Learning on the job is essential to the process of judging,” he observed in a speech in 2005.

But it is on the death penalty that his evolution is most apparent. He was named to the Supreme Court by President Gerald R. Ford at a time when ferment over capital punishment was at a peak. Less than four years earlier, the court had invalidated every death penalty statute in the country, and states were racing to draft laws that would test the court’s tolerance for a fresh start.

In July 1976, little more than six months after taking his seat, Justice Stevens announced the opinion for the court in Jurek v. Texas, one of the three cases by which the justices gave their approval to a new generation of death penalty statutes. The defendant, Jerry Lane Jurek, had been convicted of kidnapping a 10-year-old girl from a public swimming pool and then raping and killing her.

The new justice’s opinion described the crime in vivid detail before concluding that Mr. Jurek’s death sentence was constitutional because “Texas has provided a means to promote the evenhanded, rational and consistent imposition of death sentences under law.”

During the child rape argument on Wednesday, it was the lawyer for Louisiana who was giving the vivid description of the crime, recounting in grisly anatomic detail the injuries inflicted on an 8-year-old girl by her stepfather, the convicted rapist challenging the state’s death penalty law. As justices and the courtroom audience cringed, the air seemed to leave the room, along with any points the defendant’s lawyer had managed to make in his initial turn at the lectern.

Justice Stevens had remained silent during that first half of the argument, but now he pounced. “Could you clarify?” he began, interrupting the state’s lawyer, Juliet L. Clark. “Were those injuries permanent?”

He knew the answer, of course: the record of the case indicated that the girl’s physical injuries had healed in two weeks. His point was to bring the anatomy lesson to an end and refocus the argument on the legal issues. If it was also to throw the state’s lawyer off stride, he succeeded in that as well. Ms. Clark, reluctantly conceding that the injuries had healed, shifted to her legal arguments. Justice Stevens’s mild expression and tone never changed.

His renunciation of capital punishment in the lethal injection case, Baze v. Rees, was likewise low key and undramatic. While reminiscent of Justice Harry A. Blackmun’s similar step, shortly before his retirement in 1994, Justice Stevens’s opinion lacked the ringing declaration of Justice Blackmun’s “From this day forward, I no longer shall tinker with the machinery of death.” Justice Stevens’s strongest statements were not in his own voice, but in quotations from a former colleague, Justice Byron R. White, an early death penalty opponent.

But Justice Stevens was not so restrained last June in an opinion dissenting from a decision that in retrospect appears to have been, for him, the final straw. In that case, Uttecht v. Brown, a 5-to-4 majority gave state courts great leeway in death penalty trials to remove jurors who express even mild doubt about capital punishment.

“Millions of Americans oppose the death penalty” and yet can serve as conscientious jurors, Justice Stevens objected then, adding that the majority “has gotten it horribly backwards” in enabling prosecutors to weed them out.

In his opinion on Wednesday, Justice Stevens said the Uttecht decision was “of special concern to me,” and used it to explain his journey from Jurek v. Texas to Baze v. Rees. Those who voted to uphold the death penalty in 1976, he said, “relied heavily on our belief that adequate procedures were in place” to treat death penalty cases with special care so as to minimize bias and error.

“Ironically, however,” he continued, “more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.”

In other words, capital punishment had become for him, in the court’s hands, a promise of fairness unfulfilled.

One of the court’s most frequent dissenters throughout his tenure, Justice Stevens, an optimist at heart, does not look back on every loss with such a sense of stinging disappointment. In 1989, he dissented vigorously from the court’s decision in Texas v. Johnson that flag-burning is a form of expression protected by the First Amendment. While he still believes he was right, he told a Chicago audience of lawyers in 2006, he sees a silver lining: flag-burning has all but disappeared.

“What once was a courageous act of defiant expression,” he said, “is now perfectly lawful, and therefore is not worth the effort.”

NY Times: A Pause From Death

Thats the title of New York Times recent editorial about the death penalty.

The United Nations General Assembly voted on Tuesday for a global moratorium on the death penalty. The resolution was nonbinding; its symbolic weight made barely a ripple in the news ocean of the United States, where governments’ right to kill a killer is enshrined in law and custom.

But for those who have been trying to move the world away from lethal revenge as government policy, this was a milestone. The resolution failed repeatedly in the 1990s, but this time the vote was 104 to 54, with 29 nations abstaining. Progress has come in Europe and Africa. Nations like Senegal, Burundi, Gabon — even Rwanda, shamed by genocide — have decided to reject the death penalty, as official barbarism.

The United States, as usual, lined up on the other side, with Iran, China, Pakistan, Sudan and Iraq. Together this blood brotherhood accounts for more than 90 percent of the world’s executions, according to Amnesty International. These countries’ devotion to their sovereignty is rigid, as is their perverse faith in execution as a criminal deterrent and an instrument of civilized justice. But out beyond Texas, Ohio, Virginia, Myanmar, Singapore, Saudi Arabia and Zimbabwe, there are growing numbers who expect better of humanity.

Many are not nations or states but groups of regular people, organizations like the Community of Sant’Egidio, a lay Catholic movement begun in Italy whose advocacy did much to bring about this week’s successful vote in the General Assembly.

They are motivated by hope — and there is even some in the United States. The Supreme Court will soon hear debate on the cruelty of execution by lethal injection. On Monday, New Jersey became the first state in 40 years to abolish its death penalty.

That event, too, left much of this country underwhelmed. But overseas, the votes in Trenton and the United Nations were treated as glorious news. Rome continued a tradition to mark victories against capital punishment: it bathed the Colosseum, where Christians once were fed to lions, in golden light.

NYT: National Group with 13,000 Lawyers Files Complaint Against Sharon Keller

The New York Times is reporting today that

on Wednesday, the National Association of Criminal Defense Lawyers, with 13,000 members nationwide, said it had just sent a complaint against Judge Keller to the Texas Commission on Judicial Conduct, the first judicial complaint the group had ever filed, said its president, Carmen D. Hernandez, of Washington.

“Whatever else happens in the United States of America, the courts are to remain open to litigants,” Ms. Hernandez said.

Also, so far, almost 900 people from all walks of life have signed on to a complaint from members of the public that is being organized by Texas Moratorium Network. The sister of Michael Richard, Patricia Miller, is one of the people who have signed the TMN complaint. Patricia Miller will speak on Saturday at the 8th Annual March to Stop Executions in Houston.

Anyone can sign the complaint online by clicking here.

TMN is also responsible for persuading several elected officials to file complaints against Keller, including State Representatives Burnam, Dutton, Olivo and Farrar.

Texas Planning New Execution Despite Ruling

Thats the title of Ralph Blumenthal's article at The New York Times about the lethal injection developments.

HOUSTON, Sept. 28 — A day after the United States Supreme Court halted an execution in Texas at the last minute, Texas officials made clear on Friday that they would nonetheless proceed with more executions in coming months, including one next week.

Though several other states are halting lethal injections until it is clear whether they are constitutional, Texas is taking a different course, risking a confrontation with the court.

“The Supreme Court’s decision to stay convicted murderer Carlton Turner’s execution will not necessarily result in an abrupt halt to Texas executions,” said Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas. “State and federal courts will continue to address each scheduled execution on a case-by-case basis.”

Not the Killer, but Still Facing a Date With the Executioner

Thats the title of Ralph Blumenthal's article on NY Times.

HOUSTON, Aug. 29 — Kenneth Foster has a date on Thursday with the executioner’s needle. Not for killing anyone himself, but for what he was doing — and might have been thinking — the night in 1996 when he was 19 and a sidekick gunned down a San Antonio law student.

Ensnared in a Texas law that makes accomplices subject to the death penalty, Mr. Foster, 30, is to become the third death row inmate this week, and the 403rd since capital punishment resumed in Texas in 1982, to give his life for a life taken.

But unlike most others condemned to death in this state, Mr. Foster, a former gang member and aspiring musician and now a prison poet from San Antonio, is not a murderer in the usual sense. He was convicted and sentenced to die for abetting a killing — 80 feet away — that he might, or might not, have had reason to anticipate.

The gunman is dead, executed last year. Two accomplices are serving life terms.

Now, failing a last-minute reprieve, Mr. Foster, the group’s driver in a robbery spree — who argues that he never was party to the murder — is facing lethal injection. His guilt, affirmed so far in every appeal, including five turned away by the United States Supreme Court, hinges in large part on difficult questions of awareness and intention.

Other states also hold co-conspirators responsible for one another’s criminal acts in a so-called law of parties. But few of those states have a death penalty. And no other state executes anybody on the scale of Texas.

With polls showing capital punishment still enjoying majority support in Texas and around the country, but by dwindling margins, the Foster case has spurred vigils and protests from abroad to the death house in Huntsville, as well as a backlash by victims’ rights advocates who still mourn the law student, Michael LaHood Jr., slain at 25.

It has also blurred concepts of guilt and innocence. If Mr. Foster is not legally guilty of murder, as his lawyer, Keith S. Hampton, and supporters contend, many find it hard to pronounce him blameless.

“I’d hate to use the word ‘innocent,’ ” said his father, Kenneth Foster Sr., a former heroin addict who told a church audience in Houston on Saturday that he used to take his baby son with him on drug runs and petty crimes. He said his son “should be punished to some degree, but not put to death.”

At the heart of the case is Texas’ law of parties, under which those conspiring to commit one felony, like a robbery, can all be held responsible for an ensuing crime, like murder, if it “should have been anticipated.”

In 1982, in Edmund v. Florida, the United States Supreme Court found that the Constitution barred the death penalty for co-conspirators who did not themselves kill.

But five years later in Tison v. Arizona, the justices carved out an exception, ruling that the Eighth Amendment did not forbid the execution of a defendant “whose participation in a felony that results in murder is major and whose mental state is one of reckless indifference.”

According to evidence in the case, on the afternoon of Aug. 14, 1996, Mr. Foster had borrowed his grandfather’s rented white Cavalier and was driving three companions — Julius Steen, Dewayne Dillard and Mauriceo Brown — on a robbery spree through San Antonio. Mr. Steen and Mr. Brown, with Mr. Dillard’s gun, held up four people.

After midnight, they trailed two cars to a street where Mr. LaHood had just driven home, followed by a companion, Mary Patrick. Ms. Patrick and Mr. Steen exchanged some remarks. Mr. Brown took the gun, chased Mr. LaHood and shot him dead. Ms. Patrick later characterized it as a robbery.

Mr. Foster and his companions fled but were soon stopped by the police. Mr. Foster denied participating in the earlier robberies or the shooting, claiming the group had been out looking for clients for his music business.

He was tried with Mr. Brown, who was also convicted and was executed in July 2006. Mr. Steen agreed to testify for the prosecution in exchange for a life sentence. Mr. Dillard is serving life for a separate murder committed with Mr. Steen.

Mr. Steen testified he did not believe that Mr. Foster had known that Mr. LaHood would be robbed, although Mr. Steen said, “I would say I kind of thought it.”

Later Mr. Dillard testified in Mr. Foster’s appeals, claiming that before they reached the LaHood house, Mr. Foster sought to end the night’s spree so he could return the car to his grandfather. Therefore, Mr. Foster’s lawyer, Mr. Hampton, argued, his client lacked the mindset to be legally culpable for the killing.

Mr. Hampton also contended that Mr. Steen and Mr. Dillard had been improperly withheld as crucial witnesses for the defense, and that mitigating testimony about Mr. Foster’s upbringing had not been presented.

“I was in jail at the time he got arrested,” said Kenneth Foster Sr., adding that a strategy of portraying his son as churchgoing and well-raised had backfired.

“One of the jurors said he should have known better,” the elder Mr. Foster said. “They never called me. If the mitigating evidence had been put on, he never would be on death row.”