Archive | Stay of execution

02 April 2013 ~ Comments Off

Delay of Execution Granted to Rigoberto Avila, Jr.

State District Judge Anna Perez ruled this morning that more time is necessary for Rigoberto Avila, Jr.’s attorneys to explore new scientific evidence that might prove his innocence.  Judge Perez halted his execution, which had been scheduled to take place next week on April 10th; a new date has been set for July 10.

Mr. Avila was sentenced to death for the 2000 murder of 19-month-old Nicolas Macias in El Paso, who he was babysitting along with his four-year-old brother, Dylan Salinas. He has consistently maintained his innocence.

According to Mr. Avila’s current attorney, who was appointed to the case in February, newly discovered, previously unavailable scientific evidence calls into serious question the medical evidence that was presented at trial relating to cause of death. This evidence strongly suggests that the baby died not as a result of intentional acts by Mr. Avila, but because his four-year-old, 38-pound brother, mimicking “worldwide wrestlers” on television, slammed into his body, causing significant internal injuries that eventually led to the child’s death.

This is the second delay of execution for Mr. Avila.  His previous execution date of December 12, 2012 was withdrawn.

Read more from the El Paso Times.

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29 March 2013 ~ Comments Off

Dallas County District Attorney Agrees to Another Delay in Execution of Kimberly McCarthy

*Update* Judge Mitchell has ordered a modification of McCarthy’s execution date to June 26, 2013. Read more from the Dallas Morning News.

On March 29, 2013, Dallas County District Attorney Craig Watkins asked State District Judge Larry Mitchell to modify the execution date of Kimberly McCarthy.  McCarthy had been scheduled to be executed next week on April 3, 2013 for the 1997 murder of Dorothy Booth in Dallas County.  According to the Dallas Morning News (“Dallas County DA Craig Watkins asks judge to temporarily delay woman’s execution while bills pending before legislature,” March 29, 2013), Watkins asked “for the delay to await whether the Texas legislature passes six bills that could impact the application of the death penalty in Texas,” including legislation aimed at addressing claims that racial bias might have been a factor in the decision to seek or impose a sentence of death.

Earlier this year, Judge Mitchell halted and rescheduled a January 29, 2013 execution date for Kimberly McCarthy in order to give her attorneys more time to pursue an appeal based on racial discrimination in the jury selection process.  According to attorney Maurie Levin, of the twelve jurors seated at trial, all were white, except one, and eligible non-white jurors were excluded from serving by the State.

A motion to move the execution date is still pending before the Texas Court of Criminal Appeals.  According to the Dallas Morning News, “Mitchell said at the hearing that if the appellate court had not ruled by the end of the day Monday, he would issue and order moving the execution date” to June 26, 2013.

Read more from the Dallas Morning News.  Read earlier posts about Kimberly McCarthy here and here.


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31 January 2013 ~ Comments Off

Judge Stays Execution of Larry Swearingen

On January 30, 2013, State District Judge Kelly Case withdrew the February 27 execution date of Larry Swearingen in order to give his attorneys more time to pursue DNA testing. Swearingen was convicted of the 1998 rape and murder of 19-year-old Melissa Trotter, a student at Montgomery Community College.  Her body was discovered in the Sam Houston National Forest on January 2, 1999, nearly a month after she disappeared from campus. Prosecutors originally theorized that Trotter had been dead for 25 days when her body was found, but further examinations by pathologists suggest this is timeframe is impossible based on the preservation of her body.  Swearingen was in police custody on unrelated charges for the three weeks preceding the discovery of Trotter’s body and has maintained his innocence of her murder.

This is the fourth stay of execution for Swearingen in recent years.  In 2011, the Texas Court of Criminal Appeals stayed his execution and later ordered a hearing to consider the forensic evidence.

According to the Houston Chronicle (“Condemned man gets another reprieve,” January 30, 2013), Judge Case did not rule on a motion by the Innocence Project and Swearingen’s attorneys requesting DNA testing on crime scene evidence, but rather ordered both sides to file responses to the motion in 60 days, so he can determine if DNA testing should be done.  Previous DNA requests have been denied by the Texas Court of Criminal Appeals.

Read more about the stay of execution from the Houston Chronicle.  You can find detailed background information on the case from the Austin Chronicle.


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29 January 2013 ~ Comments Off

Kimberly McCarthy Execution Halted, DA Won’t Appeal

Earlier today, State District Judge Larry Marshall stayed the execution of Kimberly McCarthy, which was scheduled to take place this evening.  It would have been the first Texas execution in 2013 and the fourth execution involving a female since 1982.  The Dallas County District Attorney’s Office did not appeal the decision but said that the execution had been reset for April 3.  Judge Marshall granted the stay in order to provide McCarthy’s attorneys with more time to pursue an appeal based on racial discrimination in the jury selection process.

One of McCarthy’s attorneys, Maurie Levin, issued the following statement in response to the stay:

“We are very pleased that we will now have an opportunity to present evidence of discrimination in the selection of the jury that sentenced Kimberly McCarthy to death. Of the twelve jurors seated at trial, all were white, except one, and eligible non-white jurors were excluded from serving by the State. As recognized by the U.S. Supreme Court (Miller-El v. Dretke, 2005), these facts must be understood in the context of the troubling and long-standing history of racial discrimination in jury selection in Dallas County, including at the time of Ms. McCarthy’s trial.”

Maurie Levin, attorney

Capital Punishment Clinic, University of Texas School of Law

January 29, 2013

Read more in the Houston Chronicle (as reported by the Associated Press) and the Austin Chronicle (link provided by Steve Hall at StandDown Texas).


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12 December 2012 ~ Comments Off

TCADP Report: Use of Death Penalty Geographically Isolated, Arbitrarily Imposed in Texas

Wednesday, December 12, 2012

CONTACT: Kristin Houlé, Executive Director
512-441-1808 (office); 512-552-5948 (cell)

Use of Death Penalty Geographically Isolated, Arbitrarily Imposed in Texas,
According to New Report by TCADP

Dallas-Fort Worth Metroplex led state in pursuit of the death penalty in 2012

(Austin, Texas) — More than half of all new death sentences were imposed in the Dallas-Fort Worth Metroplex this year, while no new death sentences were imposed in Harris County for the third time in five years, according to the Texas Coalition to Abolish the Death Penalty’s (TCADP) new report, Texas Death Penalty Developments in 2012: The Year in Review.

New death sentences in Texas have declined more than 75% since 2002 and remain near historic low levels in 2012.  To date this year, juries have condemned nine new individuals to death in Texas, a slight increase over 2011 and 2010, when new death sentences fell to their lowest number since the U.S. Supreme Court upheld Texas’ revised death penalty statute in 1976.  The verdict in a capital murder trial in Brazos County, in which prosecutors are seeking the death penalty, has been delayed indefinitely pending a legal dispute over jury instructions.

Tarrant and Dallas Counties each accounted for two new death sentences and Johnson County accounted for one.  Dallas County now leads the state in new death sentences since 2008, accounting for nearly 20% of sentences imposed in the last five years.  Dallas County also led the state in executions, accounting for 5 of the 15 executions carried out this year.

“While most of Texas is moving away from the death penalty, the Dallas-Fort Worth Metroplex was a major outlier both in new death sentences and executions this year,” said Kristin Houlé, Executive Director of the Texas Coalition to Abolish the Death Penalty.  “2012 exemplified the arbitrariness that pervades the death penalty system in Texas.  Not only does it remain geographically isolated to just a few jurisdictions statewide, but it continues to be applied in a haphazard and unfair way, particularly when it comes to individuals with intellectual disabilities or severe mental illness and people of color.”

Seven of the new death row inmates in 2012 are African-American, one is Hispanic, and one is a white female.  Over the last five years, nearly 75% of death sentences in Texas have been imposed on people of color – 46% African-American and 28% Hispanic.  In Dallas County, this pattern is even more pronounced – of the eight men sentenced to death there since 2008, five are African-American and two are Hispanic.

Of the 15 men executed in Texas this year, seven were African-American, four were Hispanic, and four were white.

“Although Texas is using the death penalty less, the state still uses it disproportionately on people of color,” said Kathryn Kase, Executive Director of the Texas Defender Service.  “This is a recurring problem and Texas’ failure to fix it demonstrates how broken its capital punishment system is.”

Troubling questions also persist regarding the arbitrary determination of who receives the ultimate punishment.  Cases involving individuals with comparable backgrounds or who presented similar legal arguments received vastly different treatment by the criminal justice system this year.

As one example of this arbitrariness, several death row inmates with diagnosed severe mental illnesses were scheduled for execution this year.  The executions of Steven Staley and Marcus Druery were halted pending unresolved issues related to their mental competency, while the execution of Jonathan Green, who reportedly suffered from schizophrenia, proceeded on October 10, 2012 after significant legal wrangling.

This disparate treatment was also evident in terms of issues related to intellectual disabilities.

Two inmates with recognized intellectual disabilities received reduced sentences and were removed from death row this year: Roosevelt Smith, convicted in 2007, and Anthony Pierce, who spent more than three decades on death row.  On the other hand, Marvin Wilson was executed on August 7, 2012 despite being diagnosed with an IQ of 61, well below the threshold of 70 for mental impairment.  His case created an international uproar and starkly illustrated the woefully inadequate and unscientific standards used by the State of Texas to determine which defendants with intellectual disabilities are protected from execution.

Other highlights of Texas Death Penalty Developments in 2012: The Year in Review:

  • The State of Texas accounted for more than a third of U.S. executions this year, a smaller percentage than in the past but nearly three times as many as any other state.  Texas has executed a total of 492 people since 1982 – 253 executions have occurred during the administration of Texas Governor Rick Perry (2001 – present), more than any other governor in U.S. history.
  • Six inmates scheduled for execution in 2012 received reprieves.  In addition, three execution dates were withdrawn.
  • Death-qualified juries rejected the death penalty in the sentencing phase in four trials this year and instead opted for life in prison without the possibility of parole.  In all four cases, the jury determined that the defendant did not pose a future danger.  Over the last five years, death-qualified juries have rejected the death penalty in at least 20 capital murder trials.
  • According to research by TCADP, the Texas death row population stands at its lowest level since 1989.  As of November 16, 2012, the Texas Department of Criminal Justice counted 289 death row inmates, which includes 10 women.

“Attitudes toward the death penalty are shifting as public confidence in the ultimate punishment continues to erode,” said Houlé.  “As we approach the start of the 83rd Texas Legislature, TCADP urges concerned citizens and elected officials to confront the realities of this irreversible punishment and reconsider the efficacy and cost of the death penalty as a means of achieving justice.”

TCADP is a statewide, grassroots advocacy organization based in Austin.

Texas Death Penalty Developments in 2012: The Year in Review is available online at  Contact report author Kristin Houlé at to receive a copy directly via email.  See the report for tables illustrating Texas’ highest-use counties from 2008-2012, the race of defendants sentenced to death in the last five years, and additional graphs depicting recent trends.

See for a map of new death sentences by county from 2008 to 2012.

See for a map of death sentences by county from 1976 to 2012.


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19 October 2012 ~ Comments Off

U.S. Supreme Court Grants Stay of Execution to Anthony Haynes

This afternoon, October 18, 2012, the U.S. Supreme Court agreed to consider a review of the case of Anthony Haynes, who was scheduled to be put to death today for the 1998 murder of off-duty police officer Sgt. Kent Kincaid in Houston.  According to the Houston Chronicle, (“Houston cop killer Anthony Haynes granted stay of execution,” October 18, 2012), “Earlier, the Texas Board of Pardons and Paroles and a federal court had rejected the killer’s appeals, which essentially said Haynes’ previous lawyers had provided inadequate representation.”  Here’s an excerpt from the Chronicle:

In his petitions, Haynes’ current lawyer Richard Ellis said the earlier attorneys failed to thoroughly research the case, and had handled the punishment phase of the trial as an “afterthought.” Friends and relatives who would have testified to Haynes’ good character were not allowed to tell their stories to jurors, Ellis said.

Should the high court review Haynes’ case, it will also consider whether claims such as his can be considered in federal courts when they have not been heard in state courts. Haynes’ claims of insufficient counsel were not heard in state courts because they were not presented in a timely manner mandated by Texas law.

High court justices later this month will consider reviewing a case where the arguments mirror Haynes’. The court in August stayed the execution of Amarillo triple-killer John Balentine.

In petitions on Haynes’ behalf, Ellis has argued that his client was a stellar student of good character, an ambitious youth destined for a military career, before he fell victim to drug abuse.

This was the sixth stay of execution granted to a Texas death row inmate this year.

Read more in the Houston Chronicle.

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10 October 2012 ~ 1 Comment

5th Circuit Lifts Stay for Jonathan Green; execution could proceed.

*Update* The Associated Press is reporting that the U.S. Supreme Court has refused to stop tonight’s scheduled execution of Jonathan Green, clearing the way for it to proceed.  This will be the 10th Texas execution in 2012.

Previous post:

The 5th U.S. Circuit Court of Appeals has lifted the stay for Jonathan Green, reinstating today’s execution hours before it was scheduled to be carried out.  Green was convicted of the abduction, rape and strangling of Christina Neal in 2000.

The state attorney general’s office had asked the 5th Circuit to overturn the stay of execution granted earlier this week by a federal judge.  According to the Associated Press (“Texas set to execute man convicted in girl’s death,” October 10, 2012):

The appeals court said it found the procedures at Green’s competency hearing were not improper, that no Supreme Court precedents were violated and that it was reasonable to find Green competent for the death penalty.

“We conclude that the state court applied the correct standard and the (federal) district court abused its discretion in finding otherwise,” the three-judge panel ruled.

Green’s lawyer, James Rytting, said his client hallucinated about the “ongoing spiritual warfare between two sets of voices representing good and evil.”

But Green told a psychiatrist who examined him before the hearing that he didn’t and couldn’t have killed Neal, that false evidence was used against him, and that he understood a murder conviction could result in him receiving an injection that would kill him.

Green is scheduled to be executed tonight, Wednesday evening in Huntsville.  His lawyers have appealed to the U.S. Supreme Court.  Please stay tuned for further developments on the TCADP home page and Facebook.

For more information:

5th Circuit Opinion:

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08 October 2012 ~ 1 Comment

Federal Judge Grants Stay of Execution to Jonathan Green

According to the Associated Press, U.S. District Judge Nancy Atlas has stayed the execution of Jonathan Green, who was scheduled to be put to death on Wednesday, October 10 for the 2000 abduction and murder of Christina Neal in Montgomery County (“Federal judge stops execution this week in Texas,” October 8, 2012).  Judge Atlas ruled on an appeal from Green’s attorneys challenging a state district judge’s decision two years ago that he was mentally competent for execution.  Green reportedly suffers from schizophrenia for which he receives no medication.  He received a last-minute stay of execution in 2010.

Here’s an excerpt from the article:

Atlas said her ruling was concerned ‘only with the question whether Green is entitled to a stay of execution and not with the ultimate question of whether he is incompetent to be executed.’

‘It is clear from the record that, at a minimum, the trial court prevented Green from presenting testimony by treating mental health professionals, relied on an order solicited from and drafted by the state to which Green had no opportunity to object, and applied at least one incorrect legal standard,’ Atlas ruled.

Atlas left open the possibility of holding an evidentiary hearing on Green’s competency, writing in her ruling that while Green didn’t fail to develop the factual basis of his claim, ‘rather, he was prevented from doing so.’

She said the state court ‘unreasonably applied’ Supreme Court precedents and failed to provide Green due process.

In 1986, the U.S. Supreme Court ruled in the case of Ford v. Wainwright that it is unconstitutional to execute someone who does not understand the reason for, or the reality of, his or her punishment.  The Ford decision left the determination of insanity and competency for execution up to each state, however, and it has not prevented the execution of scores of offenders with severe and persistent mental illnesses, such as schizophrenia or bipolar disorder.

In Texas, the state legislature did not establish a statute governing the process to determine competency to be executed until 1999, and the U.S. Fifth Circuit Court of Appeals, which considers cases from Texas, Louisiana, and Mississippi, has never found a death row inmate incompetent for execution.

In 2007, the U.S. Supreme Court ruled in another Texas death penalty case, Panetti v. Quarterman, that an inmate must possess a “rational understanding” of the reason for his or her execution.

Hours after Judge Atlas issued her ruling, the Attorney General’s Office announced plans to appeal the decision to the U.S. Fifth Circuit Court of Appeals.

Read more about the stay of execution and background about the case in the Houston Chronicle here and here.

More information about the case of Jonathan Green is available also in the Austin Chronicle (“The View from Death Row,” October 5, 2012).

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