David Dow: Death Penalty, Still Racist and Arbitrary

The New York Times
by David Dow

LAST week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.

Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus (who died last month), along with two colleagues, published a study examining more than 2,000 homicides that took place in Georgia beginning in 1972. They found that black defendants were 1.7 times more likely to receive the death penalty than white defendants and that murderers of white victims were 4.3 times more likely to be sentenced to death than those who killed blacks.
What became known as the Baldus study was the centerpiece of the Supreme Court’s 1987 decision in McCleskey v. Kemp. That case involved a black man, Warren McCleskey, who was sentenced to die for murdering a white Atlanta police officer. Mr. McCleskey argued that the Baldus study established that his death sentence was tainted by racial bias. In a 5-to-4 decision, the Supreme Court ruled that general patterns of discrimination do not prove that racial discrimination operated in particular cases.
Of course, the court had to say that, or America’s capital justice system would have screeched to a halt. Georgia is not special. Nationwide, blacks and whites are victims of homicide in roughly equal numbers, yet 80 percent of those executed had murdered white people. Over the past three decades, the Baldus study has been replicated in about a dozen other jurisdictions, and they all reflect the same basic racial bias. By insisting on direct evidence of racial discrimination, the court in McCleskey essentially made the fact of pervasive racism legally irrelevant, because prosecutors rarely write e-mails announcing they are seeking death in a given case because the murderer was black (or because the victim was white).
In Texas, though, they do come close. In 2008, the district attorney of Harris County, Chuck Rosenthal, resigned after news emerged that he had sent and received racist e-mails. His office had sought the death penalty in 25 cases; his successor has sought it in 7. Of the total 32 cases, 29 involve a nonwhite defendant.
Since 1976, Texas has carried out 470 executions (well more than a third of the national total of 1,257). You can count on one hand the number of those executions that involved a white murderer and a black victim and you do not need to use your thumb, ring finger, index finger or pinkie.
Well, you might need the pinkie. On June 16, Texas executed Lee Taylor, who at age 16 beat an elderly couple while robbing their home. The 79-year-old husband died of his injuries. Mr. Taylor was sentenced to life in prison; there he joined the Aryan Brotherhood, a white gang, and, four years into his sentence, murdered a black inmate and was sentenced to death. When Mr. Taylor was executed, it was reported that he was the second white person in Texas executed for killing a black person. Actually, he should be counted as the first. The other inmate, Larry Hayes, executed in 2003, killed two people, one of whom was white.
The facts surrounding Lee Taylor’s execution are cause for further shame. John Balentine, a black inmate, was scheduled to die in Texas the day before Lee Taylor’s execution. Mr. Balentine’s lawyers argued that his court-appointed appellate lawyer had botched his case, and that he should have an opportunity to raise issues the lawyer had neglected. Less than an hour before Mr. Balentine was to die, the Supreme Court issued a stay.
Lee Taylor’s lawyers watched the Balentine case closely; their client too had received scandalously bad representation, and, they filed a petition virtually identical to the one in the Balentine case. But by a vote of 5-to-4, the justices permitted the Taylor execution to proceed. If there were differences between the Balentine and Taylor cases, they were far too minor to form the boundary between life and death. But trivial distinctions are commonplace in death penalty cases. Justice Lewis F. Powell Jr., one of the five justices in the McCleskey majority, retired from the court in 1987. Following his retirement he said he had voted the wrong way. If Justice Powell had changed his mind sooner, Warren McCleskey, who was executed in Georgia in 1991, would still be alive.
And because of a vote from a single Supreme Court justice, John Balentine lives while Lee Taylor died. When capital punishment was briefly struck down, in 1972, Justice Potter Stewart said the death penalty was arbitrary, like being struck by lightning.
It still is, and it’s the justices themselves who keep throwing the bolts.

David R. Dow, a professor at the University of Houston Law Center, is the author, most recently, of a memoir, “The Autobiography of an Execution.”

Execution Watch: Mark Stroman

 Mark Stroman in visiting area of death row.

By Elizabeth Ann Stein
Producer, Execution Watch

Texas plans to execute Mark Stroman Wednesday in the death of an Indian-American man during a shooting spree following 9/11.

Rais Bhuiyan has other ideas.

Bhuiyan survived being shot in the face by Stroman and is suing state officials in an attempt to spare the man's life. Ever since the shooting, Bhuiyan says, officials have trampled on his rights as a victim, including the right to reconcile with Stroman

If the execution is carried out, Execution Watch will provide live coverage and commentary. Details are below.

RADIO PROGRAM PREVIEW
EXECUTION WATCH
Unless a stay is issued, we'll broadcast on ...
July 20, 2011, 6-7 PM CT
Houston: KPFT 90.1 FM
Worldwide: www.executionwatch.org > Listen

TEXAS PLANS TO EXECUTE:
MARK STROMAN, 41, convicted of killing an Indian-American man during a shooting spree in Dallas that claimed one other life following the 9/11 terrorist attacks. The sole survivor of the shootings, Rais Bhuiyan, has used his deep Muslim faith to forgive Stroman for the hate crime and mount an international campaign to spare his life. More background at executionwatch.org > Backpage on Mark Stroman.

SHOW LINEUP
Host: RAY HILL, an ex-convict and activist who founded, and hosted for 30 years, the Prison Show on KPFT. His new show may be heard every weekday on hmsnetradio.org at 2 p.m. CT.

Legal Analyst: JIM SKELTON, a legal educator and retired attorney, he is a native Texan and iconoclast who has seen capital trials from both the prosecution table and the defense table. His guests may include fellow attorneys SUSAN ASHLEY and LARRY DOUGLAS.

Featured Interview: CHRIS CASTILLO, National-Texas outreach coordinator for Murder Victims Families for Reconciliation, Castillo became involved with the nonprofit after his mother, Pilar Castillo, was murdered in her Houston home in 1991. www.mvfr.org

Reporter, Death House, Huntsville: GLORIA RUBAC, Founder, Texas Death Penalty Abolition Movement, abolitionmovement.org. The show might include remarks in Huntsville from shooting survivor RAIS BHUIYAN, worldwithouthate.org, and RICK HALPERIN, director, Human Rights program, Southern Methodist University, smu.edu/humanrights.

Reporter, Houston Vigil: DAVE ATWOOD, a founder and board member, Texas Coalition to Abolish the Death Penalty; author of memoir, Detour to Death Row. www.tcadp.org.

NEXT SCHEDULED EXECUTION
On Aug. 10, Texas plans to execute MARTIN ROBLES. If that happens, Execution Watch will broadcast. Details: executionwatch.org

PRODUCER: Elizabeth Ann Stein, eliza.tx.usa @gmail.com.
TECHNICAL DIRECTOR Otis Maclay, omaclay @gmail.com.
STUDIO ENGINEER: Luke Jones
THEME: By Victoria Panetti, SheMonster International, myspace.com/shemonster.
--Execution Watch is on Facebook, where listeners are invited to join the discussion.--

Shooting survivor sues Gov. Perry over violation of Victims’ Rights, demanding stay of Mark Stroman execution

A man who survived being shot in the face in 2001 is to sue Texas Governor Rick Perry and other officials today [Thursday 14 July] , demanding respect for his rights as a victim of violent crime. Rais Bhuiyan is expected to file the suit at Travis County Courthouse, Austin, TX, at 10 a.m. local time.

Mr Bhuiyan was shot by Mark Stroman in the immediate aftermath of 9/11.  Fueled by his addiction to methamphetamine, which he used to medicate his post-traumatic stress disorder (PTSD), Mr Stroman was close to the edge when he caught his girlfriend having an affair. Then came 9/11, and he responded to the fact that his half-sister was killed in the World Trade Center by setting out to take revenge on “Arabs”.  Mr Stroman killed two innocent men and tried to kill Mr Bhuiyan.
The previous Dallas District Attorney pushed forward with the death penalty without consulting the victims for their views. Mark Stroman’s lawyers put up a desultory defense, and he was on death row in record time – convicted after less than a day.
Due to his strong religious belief in the importance of forgiveness, Mr Bhuiyan never wanted to see Mark Stroman die.  Supported in his campaign by the families of the two other victims, Mr Bhuiyan has recently criss-crossed Texas in search of a politician willing to listen to him.
“Along with families of the other victims in the case, I have been ignored and sidelined, year after year," he says. "My parents taught me to believe passionately in compassion and respect. If Governor Perry really means it when he says victims’ rights are a priority, we need action rather than hollow words.”
Mr Bhuiyan was kept in the dark for a decade concerning his entitlements under the Texas Victims’ Bill of Rights.  He has belatedly learned of his rights, every one of which has been ignored.  He has the right to mediation with Mark Stroman, who is willing to meet with him and apologize for his crimes, but the Texas Department of Criminal Justice has not responded to the request.
"The State of Texas has failed him as a victim," says Khurrum Wahid, Mr Bhuiyan's lawyer. "We often hear, 'What about the rights of the victim!' The victim has rights even when his voice is not one of vengeance, but one of forgiveness.”
This has been just one part of a catalogue of failings, which also included a lack of meaningful mental health assistance with the trauma he suffered after being shot in the face. "After suffering such a traumatic experience, surely we should respect Mr Bhuiyan, rather than traumatise him again," says Mr Wahid.
Earlier this year, Governor Perry decreed that April 10-16, 2011, would be Victims’ Rights Week:  “I encourage all Texans,” he said, “to join in this effort by learning more about victims’ rights and supporting victims of crime whenever possible.  We can help our fellow Texans on the road to recovery with compassion and respect.”
With Mark Stroman’s execution scheduled for 20 July, time is now extremely short.

Downloads

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• 2011_07_14_Bhuiyan_Pro_Hac_Vice
• 2011_07_14_Bhuiyan_v_Perry

Top UN rights official says US breached international law by executing Humberto Leal

The US breached international law when the state of Texas executed a Mexican citizen convicted of raping and killing an American girl, the UN's senior human rights official has said. By a 5-4 vote, the U.S. Supreme Court refused to stay the execution of Humberto Leal Garcia. Justice Breyer wrote a dissent joined by three justices. 

Read statements from former U.S. Diplomats and Senator Patrick Leahy, Chairman of the Senate Judiciary Committee.

The following statement is attributed to Sandra L. Babcock, attorney for Humberto Leal Garcia:

“Today the United States stumbled in its commitment to the rule of law.  Mr. Leal, tragically, will suffer the consequences.  He will be executed tonight, despite the fact that his right to consular assistance was violated.  If he had had the assistance of the Mexican consulate at the time of trial, Mr. Leal would have had a meaningful opportunity to show that he was not guilty of capital murder.

“It is shameful that Mr. Leal will pay the price for our inaction.  The need for Congressional action to restore our reputation and protect our citizens is more urgent than ever.

“This case was not just about one Mexican national on death row in Texas. The execution of Mr. Leal violates the United States’ treaty commitments, threatens the nation’s foreign policy interests, and undermines the safety of all Americans abroad. That is why the U.S. Solicitor General, former diplomats, military leaders, and Americans detained overseas were among those who joined together to call for a stay of execution.

“It is now imperative that Congress promptly act to ensure passage of legislation that will bring the U.S. into compliance with its international legal commitments and provide judicial review to the forty Mexican nationals who remain on death row in violation of their consular rights.”

Sandra L. Babcock, Clinical Professor of Law at Northwestern University School of Law and attorney for Mr. Leal, July 7, 2011

The following is a message sent to us by Delia Perez Meyer who was in Huntsville during Leal's execution:


Words cannot describe the sorrow & pain that the the families of the
victims and the family of Leal went through over this execution. It was
truly one of the most difficult and saddest days of my life as I spent the
day with my brother on death row - watching the Leal family come in and
visit Humberto for the last time. They were brave, strong, and hopeful
until the last minute! My heart, my love, and my prayers go out to all -
especially Leal's sister who went in to witness the execution despite
having fallen to the ground and vomiting for what seemed like forever when
Babcock told us the US Supreme Court had denied the stay. Shame on Texas,
shame on the US Supreme Court - God only knows how much longer we can take
this horrific, sickening, monstrous death penalty in Texas and beyond.
Thanks so much to the dissenting judges and the international community
for coming forth with such power - it will truly never be forgotten on
death row in Livingston, TX!!! God Bless You all.

Execution Watch: Humberto Leal, Jr.

Humberto Leal, Jr., gets visit from anti-death penalty activist Germain Corbin.

By Elizabeth Stein
Producer, Execution Watch

Texas plans to execute a man tomorrow who's at the eye of an international political storm.

Humberto Leal, Jr., wasn't given consular access at his arrest, as guaranteed in the Vienna Treaty on Consular Relations. Gov. Rick Perry is under intense pressure to put off the execution, at least until the treaty issue is resolved.

Unless Humberto receives a stay, we'll broadcast live news and commentary of his execution on Execution Watch. Details are below. Supporters may now "Like" the Execution Watch page on Facebook.

*****

RADIO PROGRAM SUMMARY
EXECUTION WATCH
July 7, 2011, 6-7 PM CT
Houston: KPFT 90.1 FM
Worldwide: www.executionwatch.org > Listen
Execution Watch may be followed on Facebook
TEXAS PLANS TO EXECUTE:
HUMBERTO LEAL, JR., 38. President Obama's pleas to stay the Mexican citizen's execution are having no impact on Governor Perry, who is also turning a deaf ear to the international community and the elite of the U.S. military and criminal justice system. They've warned that Leal's execution would endanger Americans abroad by violating a treaty guaranteeing consular access to foreign nationals who are arrested. Leal's executioin is slated six years to the week since he was condemned in the slaying of a 16-year-old San Antonio girl. More background at executionwatch.org > Backpage on Humberto Leal, Jr.

SHOW LINEUP
Host: RAY HILL, an ex-convict whose activism has included shepherding several cases to the U.S. Supreme Court., he founded, and hosted for 30 years, the Prison Show on KPFT. His new internet talk show may be heard every weekday on hmsnetradio.org at 2 p.m. CT.

Legal Analyst: JIM SKELTON, a legal educator and retired attorney, he’s a native Texan and  iconoclast who has seen capital trials from both the prosecution table and the defense table.

Featured Interview: PROF. DENNIS LONGMIRE, Professor of criminal justice and director of the Survey Research Program at Sam Houston State University, His research has been widely published. Among his professional activities is serving on the Jail Diversion Task Force, Mental Health and Mental Retardation Authority of Harris County, Texas. He is a frequent participant in silent vigils outside the death house in Huntsville.

Reporter, Death House, Huntsville: GLORIA RUBAC. Founder of the Texas Death Penalty Abolition Movement, abolitionmovement.org/

Reporter, Houston Vigil: DAVE ATWOOD, board member of Texas Coalition to Abolish the Death Penalty and author of the memoir, Detour to Death Row. www.tcadp.org.

NEXT SCHEDULED EXECUTION
On July 20, Texas plans to execute MARK STROMAN. If that happens, Execution Watch will broadcast. Details: executionwatch.org

PRODUCER: Elizabeth Ann Stein, eliza.tx.usa @gmail.com.
TECHNICAL DIRECTOR: Otis Maclay, omaclay @gmail.com.
THEME:  By Victoria Panetti, SheMonster International, myspace.com/shemonster.

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: The D.A. Stole His Life, Justices Took His Money

John Thompson speaking at Witness to Innocence's
2011 Spring Empowerment Gathering in Richmon, VA.

The New York Times recently featured an editorial about Witness to Innocence member John Thompson and how the Supreme Court ruled against awarding him $14 Million.

In an important prosecutorial-misconduct case this term, the Supreme Court’s conservative majority threw out a $14 million jury award for a New Orleans man who was imprisoned for 18 years, including 14 on death row, for a robbery and a murder he did not commit. One month before John Thompson’s scheduled execution, a private investigator discovered that prosecutors had hidden evidence that exonerated him.

After his release, Mr. Thompson won a civil lawsuit against the Orleans Parish district attorney’s office, which had been led by Harry F. Connick, for its gross indifference to the incompetence of the prosecutors who violated his constitutional rights.

Justice Clarence Thomas, writing for the 5-to-4 majority in Connick v. Thompson, said the D.A.’s office was not liable for failing to train its lawyers about their duty under the Constitution to turn over evidence favorable to the accused.

The lawyers had kept secret more than a dozen pieces of favorable evidence over 15 years, destroying some. That failure to provide training, the court said, did not amount to a pattern of “deliberate indifference” to constitutional rights.

Justice Ruth Bader Ginsburg wrote a powerful dissent, which she read from the bench.
The Thompson ruling tore down an essential bulwark for ensuring that prosecutors are properly trained, and severely diminished the right of citizens everywhere to hold them accountable. The Supreme Court’s decision to shield the district attorney’s office from having to pay a monetary award for stealing 18 years of Mr. Thompson’s life is shameful.
Innocence Project New Orleans found that in 9 of 36 death penalty convictions while Mr. Connick was chief prosecutor, his office suppressed exculpatory evidence. It had one of the worst records in America on that score.

The New Orleans district attorney’s office is by no means alone in its failure to ensure justice in capital cases. Failure to turn over evidence is a chronic problem. Its consequences are magnified by the government’s advantage over the inexperienced and inept defense lawyers who are often assigned to indigent defendants. Many of these violations are exposed. Many other instances may never be uncovered.

The capital punishment system in this country has put many innocent people on death row. It cannot be fixed and should be repealed everywhere. With this ruling, the court made it even more likely that innocent people will be railroaded by untrained prosecutors — with the terrible prospect of their being put to death for crimes they did not commit.