UPDATE: Execution Texas Style – Guilt Optional (Guest Voice)

Hello Readers, Dr. Estés here, bringing you another GUEST VOICE by Mr. Elijah Sweete who tells us that Texas Gov. Perry has now replaced a fourth member of the commission investigating death row inmate, C.T. Willingham’s, potential innocence. The Governor has now in the last month, removed four persons from the investigative commission, raising the dark question about whether a sitting Governor is attempting to silence a report from an independent group regarding execution, evidences and other matters in this capital punishment case… where though the accused may be accused, he may also be, not guilty.

EXECUTION TEXAS STYLE – GUILT OPTIONAL

This is a follow up to my post last week where a number of comments questioned the propensity of Texas to execute so many.

As Dr. Estes noted in her intro to my introductory article on this subject last week, over the past 31 years 37% of all executions in the US have been in Texas, and 46% of all US executions in 2009 have been in Texas.

Some Texas-sized examples of the stampede to execution:

• Within the last month, by a 6-3 vote, the Texas Court of Criminal Appeals refused to grant a hearing for new trial (not a new trial, just a hearing about it) after it was proven that the Trial Judge and the Prosecutor were having an affair during the trial. State of Texas v. Hood.

• Issues involving incompetent reports from the testimony of Texas Medical Examiners’ includes misidentifying gender and eye color, describing gall bladders and appendixes that had been removed years before, describing an infant as having been suffocated when it had been still born (capital murder charges against mother dropped), and a medical examiner recanting prior testimony that had put a person on death row. See Fort Worth Star-Telegram, October 2, 2009.

• On September 2, 2009, after 10 years on death row, Michael Toney was freed from a Texas prison after it was revealed that the state had withheld critical evidence prior to and at trial. There had been no physical evidence leading to his conviction.

• On August 21, 2007, the Presiding Judge of the Texas Court of Criminal Appeals left the court early and, when reached at home, refused to allow attorneys for Michael Richard to file an appeal based on a US Supreme Court decision earlier that day. As result, the appeal was not considered by the Court of Criminal Appeals and Richard was executed that night.

• Then there’s the case of Cameron Todd Willingham, believed by most credible experts to have been innocent, who was put to death five years ago in Texas. UPDATE: It was reported Sunday that Texas Gov. Perry has replaced a fourth member of the commission investigating Willingham’s innocence. Perry has now, in a four week period, replaced every commission member he can appoint. Other members are appointed by the Lt. Governor and Attorney General. See here.

• Nine different people have been freed from Texas’ death row after having been found later to be innocent.

These are but a few examples of Texas “justice”. There are many others, and it is not limited to Texas. See, http://www.deathpenaltyinfo.org Home Page under What’s New.

From the few examples above, you see specific cases of death sentences based on circumstantial evidence, judicial misconduct, prosecutorial misconduct and government witness misconduct/incompetence, some not discovered for 10-15 years, and at least one not discovered until after an innocent person was executed.

There is, of course, no way of knowing how many other improper convictions have gone undiscovered. So, how can this happen?

According to Professor James Liebman of Columbia University, author of A Broken System II: Why Is There So Much Error In Capital Cases: “The study found 76% of the state and federal reversals at the two appeal stages where data are available were because of egregiously incompetent defense lawyers, police or prosecutor misconduct, or misinformed and biased judges or juries.

He goes on to note that “82% of those retried after their death verdicts…were given a sentence less than death, and 9% of those retried – nearly one in ten – were found innocent.”

Professor Liebman learned one other unsurprising, but surprising fact. The unsurprising fact is that the more a state sentences people to death, the more often mistakes are made. Here’s the surprising fact: “This isn’t just a matter of numbers, this is about percentages. Everything else being equal, when death sentencing increases from the lowest to the highest rate in the study, the reversal rate increases six-fold, to about 80%.

The more often states…use the death penalty…the more likely it is that any death verdict they impose will later be found to be seriously flawed, and the more likely it is that the defendant who was found guilty and sentenced to die will turn out to be not guilty. (emphasis added). Guess which state has the most death sentences.

Texas.

One other factor to be considered. Responding to political pressure to shorten appeals and kill (execute) people faster, Congress in 1996 passed laws designed to decrease the number of appeals in capital cases. Texas passed similar laws at the same time. The result of this “fast tracking” of execution was to cut back on state court review.

Additionally new crimes were added for death penalty eligibility. In Texas you can be executed for participating in a crime where a person dies even if you were not the one who caused the death.

As Professor Liebman articulates, “The result of these changes…was to make the system worse. Courts are now trying to do more with less, with predictable results. Rather than reserve the death penalty for the worst of the worst, and spend time making sure trials are conducted fairly and completely, courts rush through trials, handing down death sentences when they are not clearly called for…hoping mistakes will get caught further down the line.”

The next step, logically, is that appeals courts are overloaded with capital appeals cases, and the heavier the backlog, the quicker and less precise the review becomes. That in turn leads to more mistakes that fall through the cracks.

For an in-depth interview with Professor Liebman see here:

With some insight given here, there is still not space to address the issue of “egregiously incompetent defense lawyers.” If Dr. Estes will indulge me, I will return with a more in depth analysis of that issue both from personal experience and studied review by others.

Opinion:
–Capital punishment is not working.
–It discriminates dramatically against the poor and people of color.
–Incompetent defense counsel, combined with law enforcement and prosecutorial misconduct, and tainted evidence, and aggravated by biased judges and juries… results in the uneven and unjust application of death penalty statutes.
–We need a national moratorium on the death penalty until these issues can be resolved to provide fair application, competent representation and unbiased results.
– If we do not act, innocent people will continue to fester on death row and be put death at the hands of the government.

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CODA
The image above is artist Paul Fryer’s piece “Pieta.” It was recently put on display in a cathedral in Gap, France.