Todd Willingham's name was never spoken aloud at the meeting of the Forensic ScienceCommission Friday in Harlingen. Yet his presence was certainly there, loud and clear. Grits For Breakfast live blogged the meeting.
Members of the Abolition Movement and the Rio Grande Valley chapter each carried bright yellow foam boards with Todd's picture on them and we added different slogans. Sylvia Garza, mother of Bobby Garza, who is on death row under the disgusting laws of parties, was glared at by D.A. Bradley all during the meeting, as her sign read: "Bradley & T.F.S.C.: Stop the Cover-up!"
The whole day became the John Bradley show, as he planned the agenda, and not only that, but had a prepared report for each item on the agenda. He clearly did not want any input from the commission members, and at times this did not sit well, particularly with the commission members NOT appointed last October by Rick Perry.
He wants sole control of the committees he proposed, he want to name which 3 members get to review each complaint presented to the commission and name the chair of the three-member committee. He doesn't want anyone except himself speaking to the media and this did not sit well, although I think it is now policy.
While a couple of commissioners did refer to Todd's case, it was called a "weighty matter that we need to finish working on," and never was his name uttered.
Hopefully some of us can make it to the April meeting in Ft. Worth. Bradley's plan of keeping out of the media spotlight did NOT work, however! He would have had to cross the border, I guess!
Also, our two organizations were invited to do a workshop at the 5th Annual Peace and Justice Gathering in Weslaco on Saturday at the South Texas College. Sylvia and I did ours two times, once in Spanish and the second time in English. We attracted a good crowd (there were three other workshops going on). Both sessions had a number of young people who were interested in attending the Alternative Spring break in Austin and these youth are in HIGH SCHOOL! They just wanted to know if parents could come with them. They belong to a service organization called ARISE! Sylvia spoke with one parent and will be going to their high school to speak to the whole club.
A good two days of action for abolition. Thanks to Sylvia, Mona, Lydia, Janie, and Marisol for their long days of abolition work ! !
The Texas Forensic Science Commission is meeting tomorrow for the first time in six months. This is the commission's first meeting since Gov. Rick Perry suddenly replaced its chair and several of its members while it was in the middle of an investigation into the case of Cameron Todd Willingham.
The meeting begins at 9:30 a.m. (CST) on Friday, January 29, and is expected to run several hours. Newly appointed commission chairman John Bradley decided to hold the meeting in Harlingen, which makes it difficult for many interested parties in the state to attend. Those who cannot be in Harlingen can watch the meeting live online starting at 9:30 a.m. (CST).
The Willingham case is not on the agenda, which Bradley set, although it was on the agenda for the last scheduled meeting of the commission (which was canceled when Gov. Perry replaced the chair and several members). The agenda for the canceled October meeting is at: http://www.fsc.state.tx.us/documents/D_100209MeetingAgenda_000.pdf. The agenda for tomorrow's meeting does include a discussion of pending cases. Also, individual commissioners have the authority to place a discussion of the Willingham case on the agenda during tomorrow's meeting.
Willingham was executed in 2004 for allegedly setting a fire that killed his children. Before and after his execution, leading experts found that there was no scientific basis for deeming the fire an act of arson. The Innocence Project formally asked the Forensic Science Commission to investigate the case in 2006. That request specifically asked the commission to determine whether there was negligence or misconduct in the forensic analysis that initially deemed the fire an arson and - importantly - to determine whether other arson convictions in Texas may have been based on the same kind of unreliable forensic analysis. Nearly two years ago, the commission unanimously decided to pursue an investigation, which proceeded in an objective, transparent fashion until October 2009, when the chair and several members were removed.
Last week, the San Antonio Express-News called for Judge Sharon Keller's removal from office. Now, the Dallas Morning News has become the second newspaper to call for a harsher punishment than was recommended by the special master Judge David Berchelmann, Jr.
On this we agree with a special master's finding on Texas Court of Criminal Appeals Presiding Judge Sharon Keller: She could have and should have done more to make clear her court's willingness to receive last-minute pleas before a September 2007 execution.
On this we disagree with the special master: that public humiliation Keller has endured since the celebrated fiasco is punishment enough.
Yet that's what state District Judge David A. Berchelmann Jr. is recommending to the State Commission on Judicial Conduct – essentially to let bygones be bygones, despite a royal screw-up.
Instead, when it acts on the Berchelmann report, the commission should focus on the communication breakdowns within the court and the key finding that Keller's conduct "was not exemplary of a public servant."
That degree of failure in a death penalty case merits an official reprimand by the commission, and we hope that's the way the last chapter is written in this judicial comedy of errors.
Let's set the scene from that evening of Sept. 25, 2007, as documented in a trial before Berchelmann last year: The life of convicted murderer Michael Richard was at stake, and appellate attorneys were working on an appeal that probably would not be ready until after regular business hours.
Yet confusion reigned among frontline staffers in the state's highest criminal court over the significance of "closing time" and whether court personnel could or would accept that appeal after 5 p.m.
Representatives of the attorneys got the message "We close at 5," even though a duty judge could have handled the matter. The lawyer for the Court of Appeals reached Keller at home for a clarification, but her involvement may very well have added to the fog.
Said the special master's report: "Judge Keller certainly did not exhibit a model of open communication."
Texans deserve better out of the top criminal appeals judge, especially in light of the state's nation-leading record on capital punishment, including more than 200 executions since Keller became presiding judge in 2001. It's a grisly business and one that demands everyone be alert until the executioner's needle goes in the arm of the condemned.
Berchelmann didn't let the appellate attorneys off the hook, suggesting they should have been smart enough or experienced enough to find a last-minute workaround in light of their tardy filing. The report contends they bear "the bulk of fault," as if that calculation helps us grapple with the matter at hand – Keller's leadership on the court.
Since the Richard case, her court has written down – for the first time – procedures to be followed in the hours before an execution nears. That in itself appears to be an admission that the court fell short in the Richard affair.
The judicial commission could find that Keller's shortcomings are so egregious to justify her removal from office, but that's not the way the proceedings seem to be headed. In any case, voters will have the chance to decide the question in two years
In addition to signing the petition, contact the State Commission on Judicial Conduct by phone or email and tell them not to let Sharon Keller off the hook. The Republican judge at her trial has recommended that she not be further punished, but the state commission can still punish her for saying "we close at 5" and refusing to accept a late appeal on the day of a person's execution.
Send an email to: email@example.com.
In polite, professional language, tell Executive Director Ms Willing that Sharon Keller has brought discredit on the Texas judiciary and if they let Keller off the hook, the discredit will only get worse. Restore Integrity, Remove Keller, at least punish her with a formal reprimand.
San Antonio Express-News is the first paper to publish an opinion about case of Judge Sharon Keller after the special master and republican Judge David Berchelmann, Jr issued his findings.
The key finding in State District Judge David Berchelmann's report on Texas Court of Criminal Appeals Judge Sharon Keller is that she “did not violate any written or unwritten rules or laws.” And in a very narrow technical sense, this finding is correct.
Keller, the presiding judge on the state's highest criminal appeals court, faces five charges of judicial misconduct for her actions involving the last-minute appeal for death row inmate Michael Wayne Richard. On Sept. 25, 2007, the date scheduled for Richard's execution, the U.S. Supreme Court announced it would hear a case to determine the constitutionality of lethal injection.
Richard's attorneys contacted Keller indicating they planned to rush an appeal based on the high court's action. Yet despite that information and the news from Washington, Keller twice said she would not keep the court clerk's office open past 5 p.m. to accept the appeal.
At the time, the Texas Court of Criminal Appeals did not have written procedures to handle appeals on execution days. And it was on this slender reed that Berchelmann bases his advice to the Commission on Judicial Conduct that Keller should not lose her job.
But the Texas court did have, as Berchelmann acknowledges, an oral tradition that all communications from lawyers on execution day were to be made to an assigned judge. On that day, the assigned judge was Cheryl Johnson. At the very least, Keller had a responsibility to inform Johnson about the expected appeal or refer Richard's attorneys to Johnson. She did not.
According to Berchelmann, Keller exhibited poor judgment and wasn't a “model of open communication.” But, he wrote, her inaction did not “rise to the level of willful or purposeful incompetence.” We disagree.
Richard's guilt is not at issue, nor is the fact that he ultimately would have been executed. What is at issue is Keller's judgment in allowing the state to proceed with the ultimate, irreversible sanction when she was well aware that a reasonable appeal was forthcoming, and without taking the minimally reasonable step of informing the appropriate colleague. She had an ethical responsibility to see that justice was properly served.
Keller has made the Texas judicial system a national embarrassment. She is unfit to serve as the state's highest-ranking criminal judge. Contrary to Berchelmann's finding, the State Commission on Judicial Conduct should continue to seek her removal from the bench by the Texas Supreme Court. If the commission does not, Texas voters will have the opportunity to do so in 2012.
Here are details for helping the Texas Death Penalty Abolition movement with our outreach activities on Martin Luther King Jr. Day, Monday, Jan. 18.
Please email firstname.lastname@example.org and confirm if you can come and join in the outreach for abolition. We need help from 8:30 until noon, both before and during the parade. Also please check your e-mail this weekend, as we may send you an update if we get more info.
It looks like the weather will be cool but nice on Monday and there should be a good crowd downtown. We need all of you to help us get the word out about fighting for abolition.
The Abolition Movement will have an entry in the Original MLK Parade, which is in downtown Houston starting on Texas Ave. in front of Minute Maid Park. Web site: http://originalmlkparade.org/mlkparade/?page_id=29 This is the parade sponsored by the Black Heritage Society, the group led by Ovide Duncantelle, and is the peace and justice parade.
Just so no one gets confused -- you'll probably also hear about another much more commercialized and militarized parade organized by a different group on the same day, which will be on Allen Parkway -- we will NOT be there. We'll be downtown near Minute Maid Park.
The parade starts at 10 AM and we need help before and during the parade.
* 9:00 AM: putting up banners and signs on our vehicle (thanks for the van to Lee Greenwood and her husband, James). If you have a big photo of your loved one, bring it.
* 9-10 AM: distributing our winter newsletter and literature on Howard Guidry to people lining up to be in the parade.
* 10 AM - 12 Noon: Walk with our van during the parade, carry banners, and distribute more literature. Lots of people needed for this.
We'll be in one of the parking lots across US 59 from Minute Maid Park at about 8:30 AM until they tell us to go line up for the parade (probably about 9:00 AM or a bit later), after which we'll probably be on Texas Ave. or Hamilton. They don't expect to assign exact locations for this until Monday morning, so if you come late, call Gloria at 713-305-5346 or Lee at 713-373-2455.
If that link does not work for you, search for "Texas St at Hamilton St, Houston, TX" in your favorite online mapping program.
* suitable clothes for the weather -- dress in layers so you can take off extra clothes as it warms up, and remember you'll be outside for several hours. Wear your abolition / Death Penalty tee shirts over a turtle neck.
* a knit cap to keep your head warm in early morning
* at least 2 water bottles
* a tote bag and/or small backpack to carry newsletter, leaflets and water, etc.
* comfortable walking shoes -- you'll be on your feet for several hours
* food/snacks for the wait or what ever
* the cell phone numbers for Gloria and Lee in case you have trouble finding us Monday morning or have questions then
* a smile and good feelings to share with the crowd and each other
Go to the bathroom before you come -- porta-potties may not be conveniently located.
You can stash extra stuff (water bottles, jackets, lunch, etc.) in the van, so you don't have to carry it all day.
If you arrive before 9 AM, we think you'll be able to park for free in the parade float staging area (if anyone asks, just tell them you are with the SHAPE/Abolition Movement parade entry), in the parking lots on either side of St. Emanuel between Texas and Preston. So please come early and park there, which is also where our van and supplies will be until they have us move to the lineup location.
Feel free to forward this e-mail to others who might like to help us on Monday.
(Thanks to Bill Crossier for above info that he sent to KPFT volunteers and we adapted for our group!)
"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.
Listen on KPFT's HD-2 channel, 90.1 FM Houston, or
Go to www.executionwatch. org <http://www.executionwatch.%20org/> at 6 p.m. CT, click on “Listen.”
SCHEDULED TO BE EXECUTED
KENNETH MOSLEY, 51, convicted in the 1997 death of Garland, Texas, Police Officer Michael David Moore, who responded to a call about a bank robbery and was shot during a struggle over Mosley’s weapon. Appellate attorneys sought a new hearing, arguing that the shooting was unintentional and that trial attorneys failed to present evidence of Mosley’s childhood abuse, brain damage, and adult drug habit. (For more background, go to www.executionwatch. org <http://www.executionwatch.%20org/> , click on “Backpage on Kenneth Mosley.”)
Host: RAY HILL, an ex-convict who has lost a dozen friends to the death chamber. Ray’s civil rights activism has included shepherding several cases to the U.S. Supreme Court. He hosts his own program Fridays at KPFT: the Prison Show, now in its 30th year, www.theprisonshow. org <http://www.theprisonshow.%20org/>
Legal Analyst: JIM SKELTON, a retired attorney who continues to contribute to the profession with continuing education classes on appellate law. In a distinguished career, Jim participated in a number of capital trials as prosecutor or defense attorney.
Featured Interview: RICHARD D. VOGEL, a political reporter and editor of the website, "From the Left," at www.combatingglobalization.comcombatingglobalization.com> , where he recently posted his article, "The Demise of the Death Penalty in the US." Mr. Vogel, who will be in the studio, uses his website to follow the effects of globalization on working people and their communities. He also contributes to the socialist magazine Monthly Review.
Reporter, Huntsville, Death House: GLORIA RUBAC. Leader in the Texas Death Penalty Abolition Movement, www.abolitionmovement.weebly. com <http://www.abolitionmovement.weebly.%20com/>
Reporter, Vigil: TBA. A member of the Texas Coalition to Abolish the Death Penalty, www.tcadp. org <http://www.tcadp.%20org/> , reports from one of numerous vigils across the state.
NEXT SCHEDULED EXECTION
On Jan. 12, Texas plans to execute Gary James Johnson. If it does, Execution Watch will broadcast. Details: www.executionwatch. org <http://www.executionwatch.org/>
PRODUCER: Elizabeth Ann Stein, steinea @yahoo.com .
TECHNICAL DIRECTOR: Otis Maclay, omaclay @gmail.com.
THEME MUSIC: “Death by Texas,” Victoria Panetti, www.myspace. com/shemonster shemonster> *** Media welcome to observe the broadcast, 6-7 pm, 419 Lovett Blvd., Houston 77006. Call Elizabeth, 281-989-6556, or just show up. ***
Our UK colleague, Simon Shepherd at Death Watch International, has developed a terrific website for all of is. It is unbranded, so that it will be easier for everyone working for abolition of the death penalty to use.
The site – www.deathpenaltyaction.net – has been in development for around a year or so. The idea for the site came from a discussion with colleagues at a World Coalition meeting back in 2008 about how we might use the internet to help us all to reach out to individual opponents of the death penalty around the world and let them know about our own organizations' work and any forthcoming events and other actions.
The site's main features are:
· It's available in 7 languages (English, French, Spanish, Arabic, Russian, Chinese and Indonesian) to make it accessible to as many people as possible; · Organizations are listed on the site by their geographical focus (global, regional or country/state) and by language, to make it easier for people to find those most relevant to them; · Organizations can add their details directly to the site (I've added most of you already, but if you're not there you can easily add yourselves); · You can also publicize actions and events, which are also then added to the "deathpenaction" Twitter page - and if you have a RSS feed for these this can be set up to happen automatically; · It's free – it also contains no advertising and is unbranded (which was something everyone I spoke to agreed was important if organizations were going to feel comfortable using it).
Today, I received the phone call from Sister Helen Prejean that I won from the Texas Moratorium Network raffle.This really was an honor for me, and Sister Helen was as thoughtful and generous as I have heard.
When she called, she was actually on her way home from a death row visit in Louisiana.We spoke of several topics with regard to the abolition movement, and then she asked me about my brother’s case. (Jeff Wood)We also talked briefly about the efforts of the Kids Against the Death Penalty and their being asked to speak in Geneva; she then mentioned that she would also be at the 4th World Congress next month in Geneva, and looked forward to meeting us if we were able to raise the money.
Our phone conversation lasted about half an hour, but she called back a second time (while I was in class) and spoke with 7 of the KADP members separately, (who were together to protest tonight’s execution of Gary Johnson) as well as to my husband, Steven.They were all very excited to speak with her, and were thankful for the additional call, which was a surprise to us all!
She assured me that there was a reason she and I were able to connect; and I am looking forward to working/collaborating with her in the future; not only for the sake of my brother, but for all who are affected by this barbaric form of “punishment”.She is truly an inspiration, and I cannot thank her enough for her time.Further, I would like to thank Scott Cobb from the Texas Moratorium Network not only for this amazing opportunity but also for being an instrumental part in the effort to save my brother’s life.
I know that together, we can, and will win the fight for abolition!
Two stories dominated death penalty news in Texas in 2009, Todd Willingham and Sharon Keller. We will call it a tie for top Texas death penalty story in 2009, at least according to amount of media coverage. Well, the Willingham case received more media coverage, but we still call it a tie for top story.
Other important Texas death penalty stories of 2009 in no particular order were:
the 200th execution under Governor Rick Perry;
the fact that only nine people were sentenced to death in Texas in 2009;
the approval of the Law of Parties bill in the Texas House only for it to be killed in the Senate by a veto threat from Rick Perry;
the Charles Dean Hood case, in which the Texas Court of Criminal Appeals ruled that it was ok for the judge and prosecutor to sleep together without biasing the outcome of the trial enough to warrant a retrial;
the Texas Legislature passed and Rick Perry signed into law a bill to create a new capital writs office to handle indigent habeas appeals in death penalty cases;
all charges were dropped against Robert Springsteen and Michael Toney and both were released from prison after having been sentenced to death in Texas in 2001 (Springsteen) and 1999 (Toney).
Finally in October 2009, hundreds of people converged on the Texas capitol in Austin to call for abolition of the death penalty in Texas. The 10th Annual March to Abolish the Death Penalty included the delivery of a petition to Rick Perry signed by more than 6,000 people calling for a complete investigation into the case of Todd Willingham and a moratorium on executions. The march was the largest rally against the death penalty in Texas since 2000.
Three innocent, exonerated former death row prisoners were among the special guests at the Tenth Annual March to Abolish the Death Penalty October 24, 2009 at 2 PM in Austin, Texas at the Texas Capitol on the South Steps at 11th and Congress. Also attending was the penpal of Todd Willingham, Elizabeth Gilbert, who first investigated his innocence. Plus, Todd’s last lawyer Walter Reaves.
One of the most moving moments of 2009 was when the mother of Reginald Blanton spoke at a rally at the Texas Capitol on Sept 26 pleading for Rick Perry to stay the execution of her son, who maintained his innocence from his arrest until his execution on October 27. Watch video of Blanton's mother here, but be forewarned, if you have tears, prepare to shed them.
Todd Willingham - the Texas Forensic Science Commission received a report from Dr Craig Beyler, a national fire expert who examined the case of Todd Willingham and who wrote in his report that "a finding of arson could not be sustained" by a scientific analysis. The New Yorker published a 16,000-word article by David Grann that examined all the evidence in the Willingham case and found nothing that should have led to Willingham's conviction and execution. Willingham was executed in 2004. Rick Perry raised the profile of the case even higher by replacing all of his appointees to the Texas Forensic Science Commission, including the chair. The new chair, prosecutor John Bradley, canceled a meeting at which the commission was scheduled to discuss the report by Dr Craig Beyler and shut down the commission's proceedings. Rick Perry had effectively covered up the investigation of whether Texas had executed an innocent person until after the March 2010 primary election.
Sharon Keller was charged with incompetence and misconduct by the State Commission on Judicial Conduct for saying '"we close at 5", effectively blocking the submission of an appeal in 2007 by lawyers for Michael Richard on the day of his execution, and for breaking the execution day procedures of the Texas Court of Criminal Appeals. A resolution to impeach Keller was introduced in the Texas House of Representatives and given a hearing by the chair of the House Committee on Judiciary and Civil Jurisprudence.
Keller's trial on the SCJC charges was held in San Antonio before a special master, Judge David Berchelmann, who by the end of the year had still not issued his findings.
Death sentences decline, but Texas still leads U.S. in executions. Only nine people were sentenced to death in Texas in 2009. Harris County sent zero people to death row in 2009. In 2008, Harris County had also sent zero people to death row. 24 people were executed in Texas in 2009. Texas conducted almost 50 percent of all executions in the U.S. in 2009.
Williams' sister was brutally murdered and her killer only spent 15 years in prison. He explains why he doesn't believe in execution. "I hated him. I wanted to see him die. I wanted to see him suffer in prison. And I thought justice would be done only in the way, but what I realized over time was that my hate really diminished me. It damaged me and did nothing for him," explained Williams.
The Texas House passed a bill that would have banned executions of people convicted under the Law of Parties who did not actually kill anyone. Rep Hodge and Rep Dutton both filed Law of Parties bills in response to the cases of Kenneth Foster, Jeff Wood and other people who have been sentenced to death despite not having killed anyone. Prior to the start of the session, we had lobbied legislators looking for a sponsor for the Law of Parties bill, so we were happy when both Rep Dutton and Rep Hodge filed bills.
We held a lobby day in March during which we met with legislators about the Law of Parties bill. It was the largest lobby day against the death penalty ever held in Texas. We lobbied 90 legislative offices. People came from all over Texas to participate, including the father and grandfather of Kenneth Foster, and family members of Jeff Wood, Randy Halprin and several other families of people convicted under the Law of Parties. In addition to building support for the law of parties bill on the lobby day, we found additional legislative sponsors for a bill to abolish the death penalty and the moratorium bill.
On May 2, there was a second rally for the law of parties bill. Watch video here.
On May 15, the bill passed the full Texas House and was renamed the "Kenneth Foster, Jr Act". We live blogged and issued a press release. After passing the House, the bill died in the senate after Governor Rick Perry threatened to veto it.
The bill died in part because of false information given out by prosecutors such as Williamson County Attorney John Bradley, who said in the Austin American-Statesman: "To exempt all defendants in capital cases because they didn’t pull the trigger “is irrational. 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".
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.
People like Hitler, Manson and Osama bin Laden would not have been prosecuted under Section 7.02(b), but prosecutors used that scare tactic to help kill the bill.
Largest Anti-Death Penalty Rally in Texas Since 2000 Held in October 2009
The Texas Observer is reporting in the article "Cracked", by Renée Feltz that the prosecution's expert psychologist used junk science to determine that the defendant in the case in which Sharon Keller slammed shut the doors of her court by saying "we close at 5" did not have mental retardation. Michael Richard, the person whom Texas executed after Sharon Keller said "we close at 5", would probably have been found to be constitutionally protected from being subject to the death penalty, if the state's expert psychologist had not used junk science to incorrectly determine that he did not have mental retardation.
The now discredited psychologist, George Denkowski, also handled 17 other Texas death penalty cases in which the people are still on Texas' death row, all of which would need to be re-evaluated, if Denkowski loses his license as a result of a hearing to be held Feb 16 in Austin.
In 2005, Brown and Denkowski tested Michael Richard, who had been sentenced to death for the 1986 rape and murder of a 53-year-old Houston woman named Marguerite Dixon. Based on test scores and school records, Brown concluded that Richard was mentally retarded, and had been all his life.
At first, Denkowski agreed that Richard was mentally retarded. As the state’s expert, he had submitted a finding that Richard had an IQ of 64 and adaptive-behavior scores that clearly showed mental retardation. His combined score was a 57, well below the 70 cutoff. But Denkowski retracted his findings after prosecutors showed him a list of books that were found in Richard’s cell, including two dictionaries. Denkowski said the dictionaries showed that Richard could read much better than he had indicated under testing. He adjusted several of Richard’s scores. When he added them up, the total score jumped from 57 to 76. In his new opinion, Denkowski concluded that Richard should no longer be considered mentally retarded.
When Brown saw the prosecution’s list of books, he met with Richard a second time to ask him about his reading abilities and clarify how he’d used the books in his cell—one of which was written in German. Denkowski had not followed up with Richard to ask about the books. Richard described to Brown how he stacked the books on top of each other and used them to sit on, since his death row cell lacked a chair.
Even so, the judge accepted Denkowski’s revised score. In September 2007, Richard was executed. Brown was appalled. “To those of us familiar with the right way to do these things, it is very apparent that what he’s doing is wrong.”
At the beginning of the new year, it's worth taking a moment to recall some of the biggest Texas criminal justice stories of 2009. It's a partial list, cut short by babysitting duties this morning, so let me know in the comments what I missed.
Sharon Keller on the dock: The Commission on Judicial Conduct ordered a fact finding hearing to determine whether Presiding Judge Sharon Keller deserves to be removed from the bench for rejecting a last-minute death penalty appeal on bureaucratic grounds ("We close at 5") without notifying the duty judge whose job it was to evaluate it. The results should be reported in 2010.
"Zero tolerance" on contraband fails spectacularly: TDCJ spent most of the year combating contraband - especially cell phones - at Texas prison units, only to have an inmate successfully smuggle a gun onto a prison medical transport and escape from custody. (He was recaptured without incident a week later.) TYC's Ombudsman, a former judge from Dallas, was indited for intentionally sneaking contraband including a weapon onto a TYC facility. Federal legislation to allow cell phone jamming was filed by Sen. Kay Bailey Hutchison and passed the US Senate.
Sex Parte: In the Charles Dean Hood case, the Court of Criminal Appeals ruled that a judge and prosecutor sleeping together during a capital murder trial isn't enough to force a mistrial if they successfully conceal their misconduct for a long enough period of time. Likely this ruling was more personal favor than policy decision: the judge involved, Verla Sue Holland, was appointed after the case by Gov. George W. Bush elected in 1996 and served with 8 of the 9 current CCA members as a Court of Criminal Appeals Judge.
Juarez at war: El Paso's sister city has all but turned into a war zone, with cartels fighting both one another, for access to the bridge, and also the Mexican military, which has been occupying the city for the last two years under what amounts to martial law.
Timothy Cole's posthumous exoneration: Tim Cole died in prison before his name was finally cleared, even though the real offender had claimed credit for the rape he was convicted for in correspondence to Lubbock prosecutors from prison. DNA testing finally confirmed the real offender's story, and soon-to-be-retiring Travis County District Judge Charlie Baird presided over the state's first ever posthumous exoneration hearing. In the aftermath, the Legislature improved its compensation package for the falsely convicted in legislation bearing Cole's name. The Lege also created an advisory panel named after Cole that will evaluate potential innocence reforms for the 2011 session.
Innocence legislation needlessly dies: This is how I spent my spring, working at the time as Policy Director for the Innocence Project of Texas. Several bills proposed to prevent future false convictions - including eyewitness ID reforms, requiring policies on recording interrogations, and lowering barriers to accessing the courts for writ procedures - all died an ignominious death when the Texas House melted down in an unrelated debate over voter ID. In particular, the Criminal Justice Integrity Unit established by the Court of Criminal Appeals had said the eyewitness ID legislation should have been the highest priority for preventing future false convictions: However, it wasn't a high enough priority for partisans to put aside their differences and allow the bill to proceed.
Dog scent lineups: DNA exonerations and an Innocence Project of Texas report demonstrated erroneous "scent lineups" run by Deputy Keith Pikett of the Fort Bend County Sheriff's Department are unreliable, and dog experts say he fails to use best practices. The Court of Criminal Appeals recently accepted a case to evaluate whether Pikett's dogs' testimony is acceptable as evidence.
DPS leadership in transition: After long-time Col. Tommy Davis retired under duress in the wake of the Governor's mansion fire, his replacement Stanley Clark resigned abruptly over allegations of sexual harassment. He was replaced with Gov. Perry's homeland security advisor Steve McCraw, solidifying the Governor's grip on the historically independent department.