Nov. 15
TEXAS:
Death sentences have dropped sharply after life without parole became
possible
While the debate over capital punishment rages anew in Texas, new inmates
going to death row have hit a 35-year low as prosecutors are pushing for
fewer death sentences and, many believe, juries have become less willing
to give them.
Various factors have contributed to a stark decline in death sentences and
a dramatic shake-up in the ranking of counties that use it the most.
The biggest game-changer appears to be the introduction of life without
parole as an option for juries in 2005, according to several prosecutors
and defense lawyers. The change in state law represented a huge shift for
jurors in capital cases, who previously were responsible for choosing
either the death penalty or a life sentence in which a convicted killer
could be eligible for parole in 40 years.
"With life without parole being a viable option now, [juries] feel a lot
more comfortable that that person is not going to be let out back into
society," Tarrant County District Attorney Joe Shannon said. "We are
probably waiving the death penalty more times than we used to because
we're trying to forecast the outcome of the case."
But because of the states growing list of exonerations via DNA evidence
and other questionable convictions, some argue that juries are simply less
willing to send someone to death row. State Sen. Eddie Lucio Jr.,
D-Brownsville, the author of the life-without-parole law, said prosecutors
are trying to blame it for their troubles getting Texans to trust a
scandal-ridden system.
"It isn't life without parole that has weakened the death penalty," Lucio
said. "It is a growing lack of belief that our system is fair."
In the 4 years since the introduction of life without parole, Texas death
sentences have dropped 40 % compared with the four years prior, state
records show. The number of slayings each year in Texas stayed largely
unchanged during that period, according to the Texas Department of Public
Safety.
Texas juries sentenced 13 people to death in 2008. Nine others have
received death sentences this year, including Erick Davila, who was
sentenced in February for gunning down a 5-year-old girl and her
grandmother during a birthday party in southeast Fort Worth.
It's a far cry from 15 years earlier, when juries sent 49 people to death
row.
"It's a government program thats putting a lot into a few cases," said
Richard Dieter, director of the Death Penalty Information Center. "It's
meant to show something about toughness, but even in Texas, there are very
few death sentences a year now."
Inmates added to Texas death row, by year:
1974—8
1975—17
1976—23
1977—23
1978—39
1979—21
1980—23
1981—22
1982—28
1983—21
1984—21
1985—33
1986—40
1987—35
1988—32
1989—31
1990—28
1991—29
1992—31
1993—34
1994—42
1995—43
1996—37
1997—35
1998—43
1999—47
2000—28
2001—30
2002—35
2003—28
2004—25
2005—15
2006—11
2007—15
2008—9
2009—9
Life without parole
Before 1991, someone receiving a life sentence for capital murder in Texas
could be eligible for parole in 15 years. State lawmakers increased the
minimum to 35 years in 1991 and 40 years in 1993.
Activists spent years lobbying state lawmakers to give juries the option
of life without parole. The law enforcement community pushed back, arguing
that it would weaken the use of the death penalty as a punishment.
In 2005, Lucio passed his bill after a crucial rewrite. Instead of trying
to allow life without parole as an additional option for juries in capital
cases, the bill made the punishment a replacement for life with parole,
although district attorneys could still offer defendants life with parole
as part of a plea agreement.
With this new, harsher punishment, prosecutors now feel comfortable
waiving the death penalty in more cases, and defense lawyers are often
more willing to plea-bargain, according to lawyers from each side of the
courtroom.
"You need a DA that' willing to offer life and a client willing to take
life," said Phil Wischkaemper, a capital assistance attorney for the Texas
Criminal Defense Lawyers Association. "We'e encouraging people to get
these cases worked out and pled."
But some still believe that a capital murderer who avoids death row gets
off too easy.
"I think anyone that's convicted of capital murder should be executed,
period," said William "Rusty" Hubbarth, an Austin attorney and vice
president of Justice For All, a victims' advocacy group. "I feel it's a
deterrent. I feel it's justice and I feel that it's necessary. It's the
ultimate sanction reserved for the ultimate violation."
Wrongful convictions
A competing theory for why death sentences have declined is that jurors
have become more worried about sending an innocent person to death row.
Reports of exonerations have popped up regularly in the past three years.
Dallas County District Attorney Craig Watkins' office has helped obtain
exonerations for 20 wrongfully convicted defendants in Dallas County.
A poll from Rasmussen Reports released Thursday found that 73 % of
Americans are at least somewhat concerned that some people may be executed
for crimes they did not commit.
Researchers at the Texas Defender Service, a nonprofit group that aids
defense teams in death penalty cases, say that in capital murder trials in
which prosecutors sought the death penalty, the chances of the jury
delivering a death sentence have dropped below 50 % this year.
Anecdotally, lawyers say the chance of a death penalty conviction was much
higher several years ago and throughout the 1990s.
Scott Phillips, an associate professor of sociology and criminology at the
University of Denver who has studied the use of the death penalty, said
death sentences have declined nationwide, suggesting that the option of
life without parole is just part of the reason in Texas.
"People are obviously concerned about innocence," Phillips said. "People
are concerned about cost. . . . People are concerned about racial
disparity."
Alan Levy, the lead criminal prosecutor in the Tarrant County district
attorney's office, said he believes that reports of questionable cases
have affected juries.
"It plays a big role," Levy said. "People are very skeptical."
Levy was 1 of 3 members of the Texas Forensic Science Commission whom Gov.
Rick Perry replaced in September, forcing the postponement of a widely
anticipated hearing on whether outdated science was used in the murder
trial of Cameron Todd Willingham, who was executed in 2004. The case has
become a rallying point for death penalty opponents nationwide.
Levy said Innocence Project groups have done a great job of highlighting
cases of wrongfully convicted Texans and driving the public debate. He
said he credits them with "convincing the public that the system is much
less reliable than it is."
Cost of prosecution
In the recession, the higher costs of pursuing the death penalty have
become harder to ignore, and life without parole is a far cheaper
alternative.
Death penalty trials are longer, with a punishment phase that takes more
time and appeals that typically go on for years.
Pursuing life without parole from the onset can avoid millions in legal
costs and settle cases quickly.
"You save a lot of money, a lot of time and you have a guarantee that this
person will be incarcerated for the rest of their life," said Bill Harris,
a Fort Worth defense lawyer who is president-elect of the Texas Criminal
Defense Lawyers Association.
Gray County gave more ammunition to critics last month when it spent over
$750,000 to try Levi King on a murder charge even though he was already
serving a life sentence in another state. Prosecutors sought death, but
the jury sentenced King to life without parole. County commissioners
reportedly cited the trial costs as part of the reason they had to cut
employee raises and increase the tax rate this year.
In Tarrant County, Shannon said he reserves the death penalty for the most
serious crimes. Cost does not play a role, but he does weigh how a death
penalty case will tie up his office's resources, he said.
"We do use the waiver of the death penalty probably more than we used to,"
Shannon said. "It doesnt translate to dollar bills. It translates into
uses of limited resources."
Harris County slowdown
The trend has also come with a change in which parts of the state are
securing the most sentences.
In Harris County, once known as the death penalty capital of the nation
for sending more people to death row than most states, death sentences
dropped nearly 70 % over the last 4 years, from 28 to 9, according to
state records.
"In many more cases, we are opting not to seek the death penalty because
life without parole means the person convicted will not get out of prison
and that makes us feel much better that the public will be protected from
such a person," said Maria McAnulty, the county's trial bureau chief.
Dallas County's and Bexar County's death sentences dropped by about half.
But Tarrant County's numbers have barely moved. The county had 9 death
sentences in the last 4 years, down from 11 in the 4 years before.
Harris County and Tarrant County now share the title of the most death
sentences in Texas in the past 4 years.
Levy attributes the county's smaller drop to the strict system that former
District Attorney Tim Curry had for reviewing capital cases.
"We were always careful," Levy said. "We always believed that the death
penalty should be used for the very worst of cases and that it exacted a
tremendous toll on the system."
Tarrant County stands in contrast with Harris County, which has a history
of pursuing more cases that were "death-eligible" but were not necessarily
so worthy of the harshest penalty, Levy said.
"The lesson we're taking from it is our philosophy was the correct
philosophy all along," Levy said.
(source: Fort Worth Star-Telegram)
********************
Ex-prosecutor: 'I made a mistake'
Former Texas prosecutor Sam Millsap drew upon personal experience Saturday
night while raising judicial and financial objections to capital
punishment at a meeting of the Kansas Coalition Against the Death Penalty
in Topeka.
The life, and more pointedly, the death of small-time hoodlum Ruben
Montoya Cantu is etched into the consciousness of former Texas prosecutor
Sam Millsap.
Millsap's legal prowess and persuasive skills as Bexar County district
attorney sent the 26-year-old Cantu to die by lethal injection at midnight
Aug. 24, 1993. Millsap had no physical evidence and no confession, but he
parlayed one person's eyewitness testimony into a guilty verdict and death
sentence for the 1984 slaying of Pedro Gomez, 25, inside a vacant San
Antonio house.
Another notch in the belt for law and order, Texas style.
One problem.
Millsap is now convinced Cantu should have never been on death row.
"I made a mistake," Millsap said. "Ruben Cantu should not have been
prosecuted for capital murder. You have to make sure you're getting it
right. Testimony of a single eyewitness is not enough."
Millsap was in Topeka on Saturday for the annual meeting of the Kansas
Coalition Against the Death Penalty. The organization is hopeful Millsap's
insights into the issue can inspire Kansas policymakers to give
consideration to abolishing capital punishment. Ten men have been
sentenced to death in Kansas since 1994. The Senate Judiciary Committee is
scheduled to conduct hearings in January on a bill to repeal the
15-year-old law.
Opponents of the current law advanced a bill to the Senate floor during
the 2009 session, but the measure wilted amid challenges from Democratic
Attorney General Steve Six and Senate Majority Leader Derek Schmidt, an
Independence Republican seeking the 2010 nomination for attorney general.
15 states have no capital punishment statute, with New Jersey abolishing
the sanction in 2007 and New Mexico ending the practice in 2008. At least
1 legislative chamber has passed abolition measures in New Hampshire,
Colorado, Montana and Connecticut. Texas, Virginia, Oklahoma and Missouri
lead the nation in executions.
Millsap, who has practiced law for 35 years, said Kansas didn't rush to
reinstate the death penalty in the 1970s when other states took the
plunge. There have been no executions in Kansas since 1965. The state's
reticence to pull the trigger on an absolute punishment suggests the
public might be persuaded to remove the death penalty from the scales of
justice, he said.
"Texas has executed 442 people in the same period Kansas has executed
nobody," he said.
Millsap doesn't count himself among those who abhor the death penalty on
moral grounds. Instead, his objection centers on the frailties of the
judicial system and the extravagant cost of warehousing a special class of
inmate throughout years of appeals.
He said in states such as Kansas that don't execute people the status quo
for those facing capital punishment takes the form of life without parole.
The wheels fell off the Cantu case in 2005 when Texas newspaper reports
raised questions about the testimony of Juan Moreno, who had been shot
repeatedly with Gomez while they were being robbed on Nov. 8, 1994. Moreno
was Millsap's star witness in the Cantu trial. In addition, Cantu's
co-defendant, David Garza, came forward to say he was present for the
robbery and shooting of Moreno and Gomez, but his accomplice wasn't Cantu.
Millsap, who served as district attorney from 1982 to 1987, said he wasn't
convinced of Cantu's innocence in the shootings, but has no doubt the
evidence was too thin to proceed with a capital murder charge. He said DNA
evidence, a weapon, confession or video evidence should be part of the mix
in these cases.
The bright light cast on capital punishment cases should be used to
illuminate general shortcomings of the judicial process, he said. There
are far too many people exonerated while serving prison sentences for rape
and other felony crimes based on eyewitness testimony later proven to be
flawed, he said.
Millsap said the scary part of the Cantu story was that the man — Cantu
was 17 years old at the time of the double shooting — received a "perfect
trial." He said the case brought together an experienced judge, vigorous
defense counsel, ethical prosecutor and fair jury.
"But," Millsap said, "20 years later my star witness says, 'I lied.' "
While Texans remain openly hostile to the idea of abandoning capital
punishment, Millsap said the tragic aftermath of the Cantu case should
cause level-headed people to evaluate the death penalty with fresh eyes.
"You assume the typical Kansan is a reasonable person and that the typical
person is willing to take another look at this issue," Millsap said.
(source: Topeka Capital-Journal)
************************
Texas accounts for half of executions in US but now has doubts over death
row—-Overturned convictions and growth of DNA forensic evidence shake
state's rock-solid faith in capital punishment
Even in Texas they are having their doubts. The state that executes more
people than any other by far it will account for half the prisoners sent
to the death chamber in the US this year is seeing its once rock-solid
faith in capital punishment shaken by overturned convictions, judicial
scandals and growing evidence that at least one innocent man has been
executed.
The growth of DNA forensic evidence has seen nearly 140 death row
convictions overturned across the US, prompting abolition and moratoriums
in other states that Texas has so far resisted.
But the public mood is swinging in the conservative state, which often
seems to have an Old Testament view of justice. A former governor, Mark
White previously a strong supporter of the death penalty has joined
those calling for a reconsideration of capital punishment because of the
risk of executing an innocent person.
The number of death sentences passed by juries in Texas has fallen sharply
in recent years, reflecting a retreat from capital punishment in many
parts of America after DNA evidence led to the release of scores of
condemned prisoners.
The number of death sentences passed annually in the US has dropped by
about 60% in the past decade, to around 100.
"In Texas we have seen a constant stream of individual cases that really
destroy public faith and integrity in our criminal justice system," said
Steve Hall, former chief of staff to the Texas attorney general for eight
years, who is now an anti-death penalty activist.
"You are seeing that scepticism reflected in a lot of different ways. You
are seeing juries more reluctant to issue death sentences. You are also
seeing a different approach by district attorneys. Some are breaking with
the past culture of seeking the death penalty whenever they can."
A fortnight ago, 2 men sentenced to death and life in prison for the
murder of 4 teenagers in 1991 were cleared after sophisticated forensic
tests from the crime scene did not match either man.
Other prisoners are also being released after DNA evidence. In Dallas
county alone, 24 people have been exonerated and the new district attorney
has created a conviction integrity unit to examine other suspected
miscarriages of justice.
Recent attention has focused on a high profile case which may become the
1st officially acknowledged miscarriage of justice which led to a man
being executed.
The governor of Texas, Rick Perry, has been accused of gerrymandering a
commission examining the evidence against Cameron Todd Willingham who was
executed in 2004 for the murder of his 3 young daughters in an arson
attack on his home. Perry abruptly replaced the chairman of the Texas
Forensic Science Commission as it was about to hold hearings into a report
by its own expert, who described the conviction as based on "junk
science". The new chairman called off the hearing.
Other states have moved swiftly to address concerns about potential
miscarriages of justice.
The release of four men in New Mexico prompted the governor, Bill
Richardson, to abolish the death penalty in the state earlier this year,
saying: "I do not have confidence in the criminal justice system as it
currently operates to be the final arbiter when it comes to who lives and
who dies for their crime."
6 years ago, the governor of Illinois declared a moratorium on the death
penalty after realising that the state had freed more men from death row
than it had executed since 1976.
Death penalty supporters in Texas claim the numerous appeal processes
protect against a wrongful conviction. "No one who's involved in criminal
prosecution has ever claimed they are absolutely perfect," said Dudley
Sharp, founder of a Texas victims rights group, Justice For All. "But with
the death penalty in the United States you have a system that protects
innocence to a greater degree than a life sentence ever could."
But Hall says the highly politicised judicial system in Texas, with
elected prosecutors and judges, is part of the problem. "One of the
problems with having an elected judiciary is that you end up with judges
who have to become good politicians. That means appealing to the voters.
The presiding judge on the court of criminal appeals, Sharon Keller, ran
as a pro-prosecution judge. That was her phrase," he said.
Keller – known has Sharon Killer to her critics because of her enthusiasm
for the death penalty – is at the centre of a controversy that has further
undermined confidence in the death penalty, after she refused to keep a
court office open after 5pm to allow a last-minute appeal for a stay of
execution while the supreme court decided on another case that affected
all executions in Texas. The convict, Michael Richard, was executed hours
later.
Keller is awaiting a verdict from the State Commission on Judicial Conduct
on charges of dereliction of duty.
Earlier this year, Keller turned down an appeal from a man on the brink of
execution, despite revelations that the judge and prosecutor at his trial
had been having an affair.
(source: The Guardian)
***************************
TDCJ on recording death row visits: Policy? What policy?
Yesterday I got back a response to my public information act request to
TDCJ (following another one, under separate cover, from the Office of
Inspector General), stating that, "Pursuant to a diligent search of agency
records, we have determined that no responsive information is maintained
by the TDCJ in regard to your request. Here's what I had asked for:
Any TDCJ policies regarding recording of conversations during death-row
inmates' non-attorney visitations, including any policy describing how
often recording occurs, under what circumstances, whether every call is
recorded, what is done with the recordings, who has access to them, how
long they're kept, what documentation must be maintained, etc..
Any log or record of recordings from visitations for now-deceased death
row inmate Cameron Todd Willingham.
Any log or record of who has accessed or listened to recordings from
visitations for now-deceased death row inmate Cameron Todd Willingham.
The tape or audio file (in whatever format it's maintained in) of any
recorded visitations with Cameron Todd Willingham during the month before
his execution.
So we are to understand from this response: First, TDCJ has no written
policy regarding recording death-row inmates non-attorney visitations.
Really? They're set up to record every conversation if they choose to do
so. Can it possibly be true that there's no policy on when and how that's
done? Do they really just make it up on a case by case basis as they go
along?
Second, taking them at their word, either TDCJ did not record any
visitations with Willingham – including the one where his ex-wife has
given conflicting accounts regarding whether he confessed – or they do not
keep logs of whether or not inmate visits are recorded.
The latter explanation seems hard to swallow – there are too many security
reasons you'd want to record death-row inmates' conversations and later be
able to recall the recording. The example of Richard Tabler comes to mind,
who smuggled letters out of prison that contain threats against State Sen.
John Whitmire's family. Do you really not want to monitor that guy's
non-attorney visitations? Can it possibly be true that there is no policy
regarding when, how, and at whose instigation that should happen?
That's what I'm to believe from a letter dated Nov. 10 from Patricia
Fleming, Assistant General Counsel to TDCJ. Maybe that's a question the
Senate Criminal Justice Committee should ask the next time they haul Brad
Livingston in front of them to talk about contraband and death row
security.
(source: Grits for Breakfast)