There are a few enduring and pernicious myths about the death penalty in the United States. One is that execution is reserved for the “worst of the worst,” only the most culpable and only those for which there is overwhelming evidence of guilt. We now know that this isn’t true. When it comes to culpability, for example, we’ve executed people who were mentally ill, who didn’t directly commit the murder for which they were convicted or who were the unlucky person against whom co-conspirators testified in exchange for a plea bargain. As of last month, the United States had executed 1,476 since 1976. Meanwhile, 162 death row inmates have been exonerated. Which is to say that of every nine people we’ve executed, a fellow death row inmate was wrongly convicted. In most cases, it took DNA testing to prevent the execution. In other words, we don’t merely execute those for whom there is overwhelming evidence of guilt.
Another misperception that goes hand in hand with this one is that the criminal-justice system takes these cases very seriously. As former Supreme Court justice Sandra Day O’Connor wrote in a 1993 opinion, “Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.” (To be fair, O’Connor has since changed her mind a bit.) It’s easy to see why people would assume as much. Given the stakes, one can only hope that prosecutors exercise great care and caution in seeking capital cases; that death-penalty defendants are afforded quality legal defense as well as funds to hire their own investigators and expert witnesses; and that judges bend over backward to be impartial, to ensure that these trials are fair, and to give defendants the benefit of any doubts. We want to think that appeals courts carefully review these cases and hold trial judges, prosecutors and even juries to the highest standards.
Of course, we know this isn’t true, either. We know that attorneys for death-penalty defendants have shown up at court drunk. We know they’ve been caught sleeping during trials. We know that judges have assigned capital cases to attorneys with little or no experience, or with long disciplinary records. We know that prosecutors routinely hide exculpatory evidence. And we know that appeals courts are woefully bad at oversight. Moreover, we know that, thanks to Congress, federal appeals courts routinely rule against capital defendants based on procedural issues, not on substantive matters such as guilt or innocence, justice, or whether their convictions were constitutional. Tellingly, a 2008 study of the first 200 DNA exonerations by University of Virginia law professor Brandon Garrett found that in 86 percent of those cases, the defendant never received any appellate relief before DNA testing. In a third of the cases, appeals courts dismissed the errors committed by prosecutors, judges or defense attorneys before or during the trial as “harmless,” then cited the other evidence of guilt in upholding the conviction. In more than 10 percent of cases, at least one appeals court majority described the evidence of the defendant’s guilt as “overwhelming.” (Remember that all of these people were proven innocent by DNA testing.)
All of which brings me to a study of death-penalty cases in Harris County, Tex., recently published in the Houston Law Review. (Thanks to the Open File blog for pointing the study out.)
Specifically, the study looked at how Texas’s trial courts handled post-conviction review of these cases. The term “post-conviction” refers to the period after a defendant has exhausted his or her initial appeal. The bar for a new trial during post-conviction is much higher. But in most states, it’s only during post-conviction that defense attorneys will get access to the state’s entire file about a case. If there’s exculpatory evidence that was never turned over before trial, it’s usually at this stage that they’ll find it. Recognizing the importance of post-conviction review, the federal courts have also required states to support well-funded offices of post-conviction to represent people on death row. These offices tend to be staffed with more experienced and qualified attorneys who are less overworked than the typical public defender in a capital case. They’re also more likely to have funding to hire independent investigators and expert witnesses. This, too, is why we tend not to learn about misconduct and deficiencies in a death penalty trial until post-conviction. The performance of the defendant’s trial attorney also often isn’t reviewed by an independent defense attorney until the case moves to post-conviction.
So let’s get back to that Houston study. Once in post-conviction, a defendant’s attorneys first file a petition with the trial judge laying out the new evidence. The trial judge then makes a determination of whether that new evidence merits a new trial. The trial judge’s findings are immensely important. They’re granted enormous deference by state appellate courts, and federal law requires federal appeals courts to grant enormous deference to the states.
Given all of this, we should hope that Texas’s courts treat post-conviction petitions from people on death row with a great amount of reverence and care. The study found that this just isn’t the case. The authors found so many problems, in fact, that they argue it raises questions about whether the state’s habeas process “is genuinely adversarial.” The study found that in an “overwhelming number” of cases, the trial courts didn’t bother holding an evidentiary hearing to resolve any discrepancies in facts between the state and the defense. They found that the courts showed “extreme deference” to the prosecution, and often adopted the state’s position on every single claim, even when contradicted by the record. For example, the study found 191 cases in which a defendant’s post-conviction petition alleged clear disputes of fact with the state.
In these cases, Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law, and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95 percent. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96 percent.
So in 96 percent of these cases, the judge sided with the state on every single case. And if you tally up all the disputed facts in all 191 cases — the courts sided with prosecutors on 95 percent of them.
Some other findings from the Texas study:
- Of 40 state judges for which the authors could obtain reliable data, 34 (85 percent) “in every instance . . . adopted every single finding of fact and conclusion of law proposed by the state verbatim.”
- At least eight courts in Harris County have accepted the state’s version of every disputed fact verbatim in every death penalty case since 1995. Note that the point here isn’t that these courts sided with the state in every death penalty appeal. It’s that for every disputed fact of every death penalty case, they accepted the state’s version, word for word.
Here’s the most jaw-dropping part: In 167 of the 191 cases, “the judges simply signed the state’s proposed document without changing the heading.” Which is to say, the judges essentially let the prosecutors write their opinion for them.
Moreover, there’s little evidence that the judges even read these opinions before signing their name to them. From the study:
Where the state does file an unsigned copy with the court, the intervals between filing and signing of the state’s proposed findings are often very brief (sometimes within a single day), even in cases with over a hundred proposed findings of fact and conclusions of law involving extensive factual disputes. Buried in the original district clerk’s files are handwritten notes, some on yellow Post-its, evidencing ex parte communications between post-conviction prosecutors and the presiding judges. Misspellings, misnumberings, and other typographical errors are present throughout rubber-stamped orders, suggesting that the court had not reviewed the document before signing and adopting the state-authored findings in their entirety.
Even when judges did more than merely sign their names, their changes to the prosecutors’ briefs were often perfunctory, such as changing a heading or changing the order of the findings. Below the headings, the legal arguments were word for word. The authors of the study concluded that of the 185 written opinions in which a Harris County court judge denied a post-conviction petition, the judge had actually written his or her own opinion in just two. That amounts to 2 percent.
It isn’t the first time we’ve seen this. Back in 2016, I wrote about Alabama death row inmate Doyle Lee Hamm. The man’s attorneys had requested a new sentencing hearing after presenting new evidence of mitigating factors that his trial attorney had failed to discover. In response, prosecutors filed an 89-page “Proposed Memorandum Opinion.” One business day later, the judge issue his ruling. The opinion was merely a reproduction of the prosecutor’s document, only with the judge’s signature. The judge hadn’t even bothered to delete the word proposed. Hamm’s conviction and sentence stood. (Last February, Hamm’s execution was called off after prison officials spent more than two-and-a-half hours trying to execute him. Hamm’s advanced cancer and years of drug use had made it impossible for them to find a usable vein for the lethal injection cocktail. The state has since agreed to not try to attempt to execute him again.)
As Andrew Cohen reported at the Marshall Project in 2016, in Alabama too, this practice of judges putting their names on opinions written by prosecutors was common. According to a 2003 study, prosecutors had written at least one judicial opinion in 17 of 20 recent death penalty cases.
At risk of stating the obvious, that these judges can’t even bother to write original opinions in death penalty cases is a pretty good indication that they didn’t spend much time contemplating the arguments and issues at stake. Most of us were taught in grade school that it’s wrong to put your name on someone else’s work. Even if the person whose work you’re claiming doesn’t mind, it means you didn’t bother doing the work yourself. This remains true through high school and college, where claiming someone else’s work as your own is, of course, called plagiarism. It’s a cardinal sin in journalism and academia.
Of course, plagiarism is usually committed without the consent of the plagiarized, but even if an original author has for some reason agreed to let someone else falsely claim credit for his or her work, we don’t let the plagiarizer off the hook. Again, it isn’t just about stealing work. It’s about about falsely claiming to have intellectually engaged with the material.
This assurance that the person whose name is on the work has done the intellectual heavy lifting is especially important in court cases because again, a trial judge’s findings on disputed facts are given enormous deference by the appellate courts. They assume these opinions were written after careful analysis and thoughtful consideration — or at least they pretend to.
Here’s one more kicker: Want to guess what county has executed more people since 1976 than any other county in the United States?
Yes. It’s Harris County, Tex. The county was also featured in a recent report by the Fair Punishment Project for its high proportion of death-penalty cases with prosecutorial misconduct, its inadequate public defense in capital cases and the disproportionately high percentage of people of color sent to death row. It’s the county where a former district attorney — whose office sent 40 people to death row — had to resign after he was caught sending racist jokes over email. It’s the county where defense lawyers have notoriously fallen asleep during death-penalty trials. One single defense attorney has, by himself, handled 20 percent of the county’s death penalty cases since 2006. Since 1975, three people condemned to die in Harris County were later exonerated. That includes the recent exoneration of Alfred Dewayne Brown, who was indicted and convicted after the foreman of a grand jury — who was also a police officer — threatened Brown’s alibi witness with criminal charges and the loss of her children until she changed her testimony. Brown was later exonerated when phone records confirming his alibi were found in the garage of a police officer.
This is the system that the county’s judges continued to defend and rule in favor of, usually without bothering to take the time to write their own opinions.
In the end, it seems that signing your name to someone else’s work is frowned upon in most every intellectual arena except for judicial opinions, in which someone’s life or freedom is at stake. And that says quite a bit about how seriously we take the death penalty in the United States.
