death penalty news—-TEXAS

Nov. 28


Texas sends fewer to death row—-Life without parole option cited among
reasons for drop

While the debate over capital punishment rages anew in Texas, new inmates
going to death row have hit a 35-year low as prosecutors push for fewer
death sentences and, many believe, juries have become less willing to give

Various factors have contributed to a stark decline in death sentences.

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, 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.

But because of the state's 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. Democratic state Sen. Eddie Lucio
Jr., 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 4 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. 9 others have received
death sentences this year.

15 years earlier, juries sent 49 people to death row.

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 was able to get his bill passed 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

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 3 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 this month found that 73 % of
Americans are at least somewhat concerned that some people may be executed
for crimes they did not commit.

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

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 one of three members of the Texas Forensic Science Commission
whom Republican 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

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."

Also, in the recession, the higher costs of pursuing the death penalty
have become harder to ignore, and life without parole is a far cheaper

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.

(source: McClatchy/Tribune News)


CCA Show Cause Order Directs Lawyers to Explain Untimely Filing

2 years ago, David Dow and the Texas Defender Service were embroiled in a
controversy after a thwarted last-minute attempt to file pleadings for a
death-row inmate. Now Dow and Katherine Black, his TDS co-counsel in a
different death penalty case, have been ordered to appear before the Court
of Criminal Appeals to explain an "untimely filing," and they face
possible sanctions under one of the CCA's rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and Black, a
TDS staff attorney, to appear before the court for a Dec. 2 hearing to
show cause for the untimely filed documents in Ex Parte Simpson. Dow and
Black work in the Houston office of TDS, a nonprofit organization that
seeks to improve the representation of death-row inmates.

As noted in the CCA's order, Sharon Keller, the court's presiding judge,
did not participate in Simpson and is not participating in the court's
show cause hearing for Dow and Black.

Keller faces ethics charges filed by the State Commission on Judicial
Conduct in connection with her statement that the CCA clerk's office would
close at 5 p.m. on Sept. 25, 2007. TDS had sought to file a stay of
execution and writ of prohibition in Michael Richard's case that day after
the clerk's office's normal business hours. Dow represented Richard, whom
the state executed later that day. Keller denies the commission's
allegations; she has contended she did nothing wrong and only responded to
an inquiry as to whether the CCA clerk's office would remain open past 5
p.m., which was merely an administrative matter. ["See Tough Fight at
Sharon Keller's Ethics Hearing," Texas Lawyer, Aug. 24, 2009, page 1.]

According to the CCA's order in In Re Dow and Black, the two TDS attorneys
filed a subsequent application for a writ of habeas corpus and a motion to
stay the Nov. 18 execution of Danielle Simpson in the 3rd District Court
in Anderson County at 4:08 p.m. Nov. 17. Under the CCA's Miscellaneous
Rule 08-101, adopted June 23, 2008, any motion relating to a death
sentence is deemed untimely if filed less than 48 hours before 6 p.m. on
the scheduled execution date. The rule requires an attorney who seeks to
file an untimely motion meant to stop an execution to "attach to the
proposed filing a detailed explanation stating under oath, subject to the
penalties of perjury, the reason for the delay and why counsel found it
physically, legally or factually impossible to file a timely request or

Under the CCA's rule, an attorney who fails to attach a sworn, detailed
explanation to an untimely filing or who fails to adequately justify the
necessity for the untimely filing shall be sanctioned. As noted in the
rule, such sanctions can include, but are not limited to, referral to the
State Bar of Texas chief disciplinary counsel, contempt of court, removal
from the list of attorneys eligible to be appointed to represent death-row
inmates in filing habeas corpus writ applications or restitution of costs
incurred by the opposing party.

When asked about the CCA's order, Dow says, "I'm not interested in talking
about it." Black did not return 3 telephone calls seeking comment by
presstime Nov. 25.

Reasons for Rule

CCA Judge Paul Womack, chairman of the court's rules committee, says, "The
rule was adopted to ensure that the court would have sufficient time to
consider and decide motions in these cases, while recognizing that in rare
instances there might be a need for a filing less than 48 hours before a
scheduled execution date."

Womack says the court saw a need to reduce to a minimum the number of
last-minute filings in death penalty cases.

Sian Schilhab, the CCA's general counsel, says the court enacted the rule
because the court has had people who filed anything they thought would
keep a case going.

CCA Judge Cathy Cochran, a member of the court's rules committee and its
immediate past chairwoman, says the court will review pleadings, no matter
what time they come in. The "trade-off," Cochran says, is the court will
look at whether the attorney has done everything he should to file a
document in time to meet the 48-hour requirement. That's the reason the
rule requires an attorney to file a certificate of compliance, or
statement, explaining why physically he could not have discovered the
claim, investigated it and filed the pleading before he did, Cochran says.

Cochran says the CCA patterned its rule after a 5th U.S. Circuit Court of
Appeals rule.

Rule 8.10 of the 5th Circuit's Rules and Internal Operating Procedures
sets a 5-day deadline prior to a scheduled execution for attorneys to file
for a certificate of appealability, permission to file a successive habeas
writ petition or an appeal from a district court judgment. Like the CCA's
Miscellaneous Rule 08-101, the 5th Circuit rule requires an attorney to
attach to an untimely filing a detailed explanation stating under oath the
reason for the delay, authorizes the court to direct an attorney to show
good cause for a late filing and provides for sanctions if an attorney
cannot justify the delay.

Simpson's Application for Postconviction Writ of Habeas Corpus, which is
signed by Dow and which lists Dow and Black as his attorneys, raised a
Batson v. Kentucky claim, based on the U.S. Supreme Court's 2005 decision
in Miller-El v. Dretke, regarding the state's exercise of peremptory
challenges to eliminate two black potential jurors from Simpson's trial.
Under Miller-El, the application says, courts reviewing Batson challenges
must examine whether the state engaged in disparate questioning of black
and white jurors to determine whether a juror was challenged for a
race-neutral reason. As alleged in Simpson's application, the CCA's
unpublished April 29 decision in Ex Parte Williams recognized that "the
Supreme Court's decision in Miller-El has the practical effect of
modifying the underlying constitutional right recognized in Batson."

In a Nov. 18 opinion, the CCA dismissed the application in Ex Parte
Simpson, finding that it failed to satisfy the requirements of Texas Code
of Criminal Procedure Article 11.071 5. The statutory provision provides
in relevant part that a court may not grant relief based on a subsequent
application for writ of habeas corpus unless it contains sufficient facts
to establish that the claims and issues could not have been presented in a
previous writ application.

According to the CCA's opinion, the court also denied Simpson's motion for
stay of execution. The Texas Department of Criminal Justice Web site shows
the state executed Simpson on Nov. 18 for the 2000 murder of an
84-year-old woman.

Dow wrote in a 3-page sworn statement attached to Simpson's application
that he worked pro bono for Simpson, who first contacted Dow in May. As
noted in the statement, TDS did not obtain Simpson's file until Nov. 6,
when Simpson retained Dow as his counsel. Dow wrote that TDS initially
focused on Simpson's claims under the U.S. Supreme Court's 2002 decision
in Atkins v. Virginia, which prohibits the execution of mentally retarded
persons. However, Dow noted in the statement that TDS determined Nov. 15
that Simpson's Batson claim appeared to be affected by the Supreme Court's
Miller-El decision and the CCA's Williams decision and began preparing the
habeas corpus writ application.

But, as Dow pointed out in the statement, "lawyers in our office were
simultaneously assisting lawyers representing" death-row inmate Gerald
Eldridge, whose execution date was set for Nov. 17. U.S. District Judge
Lee Rosenthal granted Eldridge a 90-day stay of execution on Nov. 17 to
determine whether he is mentally competent to be executed.

"The demands imposed by Mr. Eldridge's case, coupled with the demands
imposed by the other work we had undertaken on Mr. Simpson's behalf,
simply made it impossible for us to get the Batson/Miller-El claim
completed forty-eight hours in advance of the execution," Dow wrote in the

However, Cochran says the CCA is not totally satisfied with that

"We want a better explanation," Cochran says. "That's why we've invited
the lawyers to come up and explain that."

The Court of Criminals Appeals' order directing Dow and Black to appear
before the court and show cause for the untimely filings in Simpson is
only the second such order that the CCA has issued since adopting its June
2008 rule. In a Nov. 28, 2008, order, the CCA directed K.S. "Gator" Dunn
of the Dunn Law Firm in Conroe to appear at a Jan. 14, hearing to show
cause why he filed an untimely subsequent habeas corpus writ application
for death-row inmate Eric Cathey. Schilhab says the CCA did not sanction
Dunn, who declines comment.

As noted in the CCA's order, while Dow filed an explanation for the
untimely filing, Black neither signed Dow's explanation nor filed her own

Criminal defense attorney David Botsford, who reviewed the CCA's
Miscellaneous Rule 08-101, says that while one could interpret the rule to
require each counsel who signs on a pleading to file an explanation if the
pleading does not meet the 48-hour filing requirement, "[t]he rule doesn't
specifically say each counsel who signs on a pleading has to do that."

Botsford, a partner in Austin's Botsford & Roark, who represents death-row
inmates in habeas corpus writ applications, also notes that an attorney
who gets involved Nov. 6 in the case of an inmate scheduled for execution
Nov. 18 would have only 10 days under the CCA's rule to file the

"That's not a significant amount of time," he says.

Botsford says he is sympathetic with attorneys who are willing to
represent death-row inmates pro bono.

"We don't want to throw up legal impediments to people doing that," he

Anderson County Criminal District Attorney Doug Lowe, who prosecuted
Simpson, says he believes the rule is justified.

Speaking generally, Lowe says, he think the purpose of the rule is to stop
"last-second, last-ditch filing."

Lowe says that as a local prosecutor, he sees what happens to the crime
victims' survivors – who are themselves victims – waiting for the
execution of the person who murdered their loved one.

"When you've got victims sitting down there waiting, it's just tortuous,"
he says.

(source: Texas Lawyer)


A Death In RealtimeBeing the Story of a Poorly-Reported Event in a Small
Texas Town.

Its just really tragic after all the horrors of the last 1,000 years we
can't leave behind something as primitive as government sponsored

Russ Feingold; U.S. Senator

A modest brick building in the small town of Huntsville, Texas (population
35,000) houses an horrific secret the place where over 400 people have
died in the past 33 years and 247 since the current governor, Rick Perry,
has taken office.

Last week, while the rest of the country was planning Thanksgiving
festivities, Robert Lee Thompson was planning something else -what do to
with his corpse, his modest property, and who to invite to the circus
which had been planned to mark his passing.

You see, Robert Lee Thompson was about to become the latest in a series of
new records in the State of Texas by signing-off on the execution of
Terry Hankins in early June of this year, Governor Perry set a macabre
'record' Hankins became the 200th victim of Texas' execution-mill since
Perry took office; a record previously held by the previous occupant of
that office, George W. Bush.

Thompson's crime?

He fired a pistol over the head of a convenience-store clerk. Thompson's
partner in the holdup, Sammy Butler, was identified as the trigger-man who
actually killed the clerk; Butler and Thompson were tried separately.
Butler got life in prison; Thompson was sentenced to death.

Thompson, likely insane (in his statement to the police, he told them that
'god' had told him to do something' about Middle Eastern convenience-store
clerks who were discriminating against blacks), was sentenced to death for
the crime committed 13 years ago when Thompson was 21.

2 days before his execution, Thompson's attorney pleaded with the Texas
Board of Pardons and Paroles, stating that given Thompson's mental-state
the sentence was not fair, and asked that the sentence be commuted to

In a rare reversal of what has become policy for the Texas Department of
Corrections, the Board voted 5-2 to commute Thompson's sentence. Perry
rejected the recommendation, in effect giving the greenlight to execute

Perry, with his value-system firmly on the right-hand side of the
radio-dial, has made it clear that he will not change his position on the
death penalty (he's also come out in favor of 'boy scout values,' and

Texas' track-record of executing people is consistent but its not without
serious controversy. Perry signed off on the execution of a Mexican
national rather than return him to Mexico to serve a life sentence (Mexico
does not have the death penalty); in the case of Cameron Willingham, Perry
fired 3 members of the Forensics Board when they raised the all-too-real
potential that Willingham had been executed while innocent of the crime
for which he'd received the death penalty.

(Thompson went to his death peacefully, declaring that 'Allah would
forgive' him. His mother screamed, cried, and pounded the walls; demanding
to be taken away before her son died. Thompson was pronounced dead at
6:19PM; less than 10 minutes after receiving the 1st of 3 drugs in the
lethal-injection process. In addition to the relatives of the victim and
Thompson's mother, there were 2 reporters. News of this event was a
footnote, nationally.There are over 300 people on Texas' death row. A
disproportionate number are persons of color.)

There are no further executions scheduled through the end of the month.
They tend to shut things down for Thanksgiving and Christmas.

(source: Subsersify Magazine)


Another life gone because of bad law

On Nov. 19, Robert Lee Thompson, 34, became the 23rd person to be executed
in Texas this year.

He should still be alive.

Not because he was a good man, because he wasn't or least he was not 13
years ago when the 21-year-old Thompson and his buddy, Sammy Butler, were
involved in the armed robbery of a Houston store in which clerk Mansoor
Bhai Rahim Mohammed was killed.

Evidence showed that Butler shot Mohammed to death, and for this act a
Harris County jury sentenced him to life in prison.

Another jury sentenced Thompson to death.

Thompson was guilty of a crime that day. He shot a different store clerk,
who survived the incident.

But now this criminal has fallen prey to a flawed, often-misinterpreted
law and the callous decision of a governor focused on political ambition
rather than justice.

The Thompson case speaks to the capriciousness of how capital punishment
is applied in Texas: an actual killer gets to live while his accomplice
dies for the same crime. It also brings into clear focus once again the
bad piece of state legislation known as the "law of parties."

The statute, originally intended for conspiracy cases, says that "if, in
the attempt to carry out a conspiracy to commit one felony, another felony
is committed by one of the conspirators, all conspirators are guilty of
the felony actually committed, though having no intent to commit it." The
law goes on to say that accomplices in such circumstances should have been
able to "anticipate" the possibility of another crime being committed.

On a 5-2 vote on Nov. 18, the Texas Board of Pardons and Paroles made a
rare recommendation that the governor commute Thompsons sentence to life
in prison. Gov. Rick Perry, who is not obligated to follow the boards
recommendation, denied the request the afternoon of Nov. 19 and Thompson
was executed 45 minutes later.

"After reviewing all of the facts in the case of Robert Lee Thompson, who
had a murderous history and participated in the killing of Mansoor Bhai
Rahim Mohammed, I have decided to uphold the jurys capital murder
conviction and capital punishment for this heinous crime," the governor
said in a statement. "There is no reason to set aside the capital murder
conviction handed down by a Texas jury and upheld by numerous state and
federal courts."

Wrong, governor. There was a reason. You simply were blind to it.

The governor, who is engaged in a tough re-election campaign against U.S.
Sen. Kay Bailey Hutchison, perhaps could not see past next March's
Republican primary.

In 2007, Perry did follow the recommendation from the Board of Pardons and
Paroles in commuting the death sentence of Kenneth Foster 6 hours before
Foster was to have been executed. Foster also had been convicted under the
"law of parties" statute, but the governor did not cite that as his reason
for the commutation. Instead, he noted his concern that Foster and his
co-defendant had been tried together.

Texas is 1 of only 5 states with a law of parties statute. It is the only
state that applies that law in death penalty cases.

The Star-Telegram Editorial Board is on record calling for the Texas
Legislature to address this awful and misapplied law. Bad people should be
held accountable for their crimes, but execution based on the law of
parties is not right.

A half dozen people have died under this law. That's 6 too many.

(source: Editorial, Fort Worth Star-Telegram)


Botched investigations lead to executions

When the United States abolishes the death penalty, some of its most
ardent proponents ironically may be remembered for having made the most
effective case for its demise.

Texas Governor Rick Perry's obvious attempt to suppress the truth in the
supposed arson case against Cameron Todd Willingham, executed in 2004 for
a crime that probably didn't occur, reveals the heinousness of capital

That an innocent individual can be executed is disturbing. That the death
penaltywhich has claimed about 50 lives in the United States so far this
yearis used for political purposes, while doing nothing to deter violent
crime, is abhorrent.

Less than 2 hours before Willingham's execution, Perry received a report
challenging the central evidence against him for the supposed arson that
killed his 3 young daughters. But Perry permitted the execution anyway.

5 years after Willinghams execution, the state Forensic Science Commission
was on the verge of reviewing new findings that made a compelling case for
his innocence. But recently, just 2 days before the commissions review,
Perry began replacing all 4 governor-appointees on the commission. He
called his move purely routine.

Maybe so. One week before Thanksgiving, Texas executed Robert Lee Thompson
after Perry rejected a rare recommendation from the state clemency board
for the prisoners life to be spared. In that case, the person who actually
shot the victim is serving a life sentence.

Why is this routine in Texas? Facing a Republican primary in March,
Perry's actions have struck most observers as purely political.

After all, the death penalty does more to help politicians get elected
than keep us safe. Most criminologists believe that it doesn't deter
murder. A recent Death Penalty Information Center study shows that police
chiefs around the country rank the death penalty last among measures that
help fight crime.

Nevertheless, few politicians publicly oppose it. Additionally, the
election of district attorneys and judges creates such a strong political
motive to secure harsh sentences that investigations and prosecutions can
be sullied by manipulating evidence.

Securing testimony from dubious sources to justify a theory of someone's
guilt is too easy. For example, the government relied on a jailhouse
snitch (the most dubious of all such sources) in Willingham's case and in
numerous other cases where strong innocence claims have later emerged.

That's a factor in the Georgia case of Troy Davis, who has spent 2 decades
on death row and now will have a court hear his claim of innocence,
following a ruling from the Supreme Court.

The death penalty gives government godlike power that, given human
fallibility, is incredibly dangerous. In Willingham's case, arson
investigators used techniques that have since been debunked as "junk

While witnesses initially reported seeing Willingham attempting to help
his children out of his burning house, they seemed to change their story
and remember less sympathetic things about him once investigators started
to say they saw clear signs of arson.

Texas and other states should improve their use of fire science and the
best technical tools available.

But bias and ambition can always corrupt perceptions and conclusions.
Justifiable outrage over senseless killings can color emotions in the
search for truth.

Even the most honorable and well-intentioned prosecutors and judges can
succumb to intense political pressure. The results, predictably, are
wrongful convictions or, as in the Willingham case, a wrongful execution.

Supreme Court Justice Antonin Scalia said in 2006 that he didn't believe
the United States had executed anyone who was innocent. If that had
happened, Scalia said, "we would not have to hunt for it; the innocent's
name would be shouted from the rooftops."

Willingham's name isn't being shouted from rooftops, though it should be,
along with the names of other innocent men who were executed like Carlos
de Luna, Ruben Cantu, and Larry Griffin. Have we become so numb that the
killing of innocent people is acceptable?

Had Willingham been sentenced to life in prison, he could be a free man

Instead we are left to ask, as former Texas Governor Mark White recently
did: Why do we impose the death penalty, given the possibility that an
innocent person will be executed?

(source: Opinion, Larry Cox is executive director of Amnesty International
USA. Amnesty International is dedicated to freeing prisoners of
conscience, gaining fair trials for political prisoners, ending torture,
political killings and "disappearances," and abolishing the death penalty
throughout the world; Torrington Register Citizen)