The Texas death machine

Let’s shut it down!

Rick Perry

By: Lily Hughes and Joshua Mays

The Texas death penalty continues to spiral out of control. Since the death machine started up again in 1982, 452 men and women have been executed. Some 365 of those executions happened in the last 15 years, with 152 under the watch of former Governor George W. Bush, and  another 213 since Rick Perry has been governor.

Hank Skinner was nearing execution in late March of this year, despite the fact that DNA crucial to his case had never been tested. This just months after the national and international exposure of the case of Cameron Todd Willingham—showing that, in all likelihood, Texas had indeed executed an innocent man.

Our governor and our state continue to show a wanton disregard for justice.  Botched forensic investigations, sleeping lawyers, racism, underfunding for indigent defendants and an assembly-beltline approach to executions carried out by courts and politicians has brought the Texas system to a state of crisis—one that the Texas authorities refuse to recognize.

Bad science

Forensic science has been a continuous focus of scrutiny in the Texas system. A scandal involving the Houston crime lab over the past few years has affected hundreds of criminal cases. The investigation into the lab revealed such problems as unreliable DNA results, which led to false convictions. Water damage, caused by a failure to repair the crime lab’s roof, damaged evidence as water leaked in.

Furthermore, the 2006 execution of Cameron Todd Willingham continues to garner international attention.  Despite compelling evidence that  Willingham was innocent of setting a fire which led to the deaths of his children, Gov. Perry and the courts refused to grant a stay. After Willingham’s execution, a report prepared for the Texas Forensic Science Commission by arson expert Craig Beyler accused the initial investigators of ignoring the scientific method and basing their finding of arson on “folklore” and “myths.”

The problems surrounding this case continued in October 2009 as Gov. Perry removed three of the Commission’s board members—including the chairman—two days before the board was scheduled to review Beyler’s report on the Willingham case. Perry’s blatant attempt to squash the investigation drew fire from all sides.

Perry’s new chairman, John Bradley, immediately postponed the investigation, citing the need to revise policies and procedures before reviewing any cases. The new policies have made it harder for cases to be reviewed by the whole commission, and at a meeting in April, they continued to back-burner the Willingham case.

In other cases, there is a refusal to test crucial pieces of DNA evidence. In the case of Louis Castro Perez, DNA evidence on murder weapons does not match Louis, and there has been no attempt to match several samples of foreign DNA found at the crime scene. Louis’ sister Delia has fought for years to have the DNA re-examined, as it could ultimately help to free her brother.

The case of Hank Skinner has also added to the debate swirling around forensic science. Skinner has been fighting for years to get prosecutors to release crucial DNA evidence for testing, which they refuse to do. The Texas Court of Criminal Appeals (CCA) has continually denied Skinner’s appeals and the Board of Pardons and Paroles voted unanimously against granting Skinner a commutation.

Hours before his scheduled execution on March 24, he received a reprieve from the U.S. Supreme Court while it considers whether or not to hear his petition.

Race, class, and the death penalty

Other factors leading to wrongful convictions in Texas include the lack of access to adequate counsel for indigent people and the continued racial bias in the application of the death penalty.

Most defendants in capital cases must settle for a court-appointed attorney. In Harris County (Houston), which has historically had the highest rate of death cases, there is no public defender system, and lawyers are appointed by judges. According to Scott Phillips’s new issue brief, “Hire a Lawyer, Escape the Death Penalty?” which studied capital cases in Harris County, none of the defendants who had hired counsel received the death penalty.

Texas hews closely to national averages in terms of racial statistics —Blacks make up 12 percent of population, but are close to 40 percent of those on death row. Nationally, about 75 percent of those executed involve a victim who was white, although whites make up only 50 percent of all murder victims.

Across the country, 97 percent of district attorneys are white. More than 20 percent of Black defendants executed were tried by an all-white jury.

In a famous case out of Dallas County, Texas death row prisoner Thomas Miller-El won a new trial in 2005 because of strong evidence of racial bias in jury selection.  Prosecutors struck 10 of the 11 qualified jurors.

Up until the early 1990s, Dallas Country prosecutors were still using a jury selection manual which said: “You are not looking for a fair juror, but rather a strong, biased and sometimes hypocritical individual who believes that Defendants are different from them in kind, rather than degree …You are not looking for any member of a minority group which may subject him to suppression—they almost always empathize with the accused…Minority races almost always empathize with the Defendant.”

Miller-El’s lawyers used a study from the Dallas Morning News, which showed that in 100 randomly selected felony trials, 86 percent of Blacks eligible for jury duty were eliminated by prosecutors’ peremptory challenges.

Race and the case of Rodney Reed

The case of Rodney Reed also illustrates the continued role of racism in the Texas system. Rodney is a Black defendant accused of raping and murdering a white woman in the small Texas town of Bastrop.

Rodney was convicted of the crime in 1998 by an all-white jury.  Despite a well-documented sexual affair between Rodney and Stacey Stites, semen was the only evidence used to convict Rodney of the crime, while other DNA evidence found on beer cans at the crime scene point to police involvement.

The initial suspect was Stacey’s fiancée, a white police officer from Giddings named Jimmy Fennell. Witnesses have said that Fennell knew of the affair between Stacey and Rodney and had threatened Rodney, prior to Stacey’s murder.

None of the witnesses who could testify to the affair were called on at trial. A federal court granted Rodney a hearing in March of 2006, where new evidence was introduced, including a witness who claimed that she had seen Fennell and Stacey together the morning of the crime, and another who overheard Fennell say that he would kill his fiancée if he ever caught her cheating.

Recently, Fennell pled guilty and is currently serving time in prison for raping a woman in his custody while on duty as a Georgetown police officer. Rodney’s lawyers have been able to show a clear pattern of violence toward women on Fennell’s part.

Despite this evidence, which at the very least raises reasonable doubt, Rodney’s latest appeal was recently denied by the Texas high court.  One reason Rodney hasn’t yet been executed is because of continued pressure from Rodney’s supporters. The Austin CEDP has worked closely with Rodney’s family for years – rallying and marching in Austin and Bastrop, holding forums, press conferences, and screening the  documentary State Vs. Reed.

Rodney’s mother Sandra Reed has been a tireless fighter on behalf of her son.  As Sandra has said, “Whatever it takes, I’m going to do it.” As the case moves back into federal court, chances for an execution date have increased, but activists here are prepared to fight alongside Rodney’s family against an execution and for justice for Rodney.

The courts

As bad science and racial bias claims pile up, criminal courts here  continue to rubber-stamp wrongful convictions.

The Texas Court of Criminal Appeals (CCA)—the highest criminal court in Texas—is the biggest culprit, upholding cases like the recent case of a death row prisoner who was denied an appeal even after it was proven that the judge in his case was having an affair with the prosecutor during the trial. And, of course, there was the infamous decision upholding a  death sentence in a case where the defense attorney had slept through portions of the trial.

The presiding judge of the CCA, Sharon Keller has described herself in interviews as “pro-prosecution”—and she has the record to prove it. In one of her most infamous decisions, she denied an appeal to a defendant who had been cleared of rape by DNA evidence, stating, “We can’t give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important.”

Keller has been under fire recently over her actions surrounding the execution of Michael Richard on September 25, 2007.  Earlier that day, the Supreme Court had agreed to hear a case involving the use of lethal injection. Its decision to hear this case put a de facto moratorium on executions nationwide for several months.

Knowing this, Michael Richard’s lawyers worked to put together a last-minute appeal, based on the Supreme Court’s action.  They called the CCA sometime before 5 p.m. asking for a short extension—for about 20 minutes. The clerk called Keller (not the judge handling the case), and without notifying any other members of the court, Keller simply said “We close at 5.” Michael Richard’s execution went forward.

Because of these actions, Keller was charged with misconduct by the State Commission on Judicial Conduct. Although the judge who presided over the August 2009 hearings in her case declined even to reprimand her, she still faces other disciplinary sanctions.

Another factor in the pace of executions is the role of the Texas Board of Pardons and Paroles (BPP), which presides over all issues of clemency, including pardons, commutations and reprieves.  The BPP makes  recommendations of clemency to the governor of Texas, who may then decide whether or not to accept a positive recommendation; the governor does not have the power to override a negative recommendation. The Texas BPP is made up of seven board members, each appointed by the governor for six-year terms, and twelve parole commissioners who are hired directly by the Board. Currently, every member of the Board has been appointed by Gov. Rick Perry.

The BPP does not meet to discuss clemency petitions. Rather, each board member reviews the material individually and faxes their decision to the rest of the board. There are no official guidelines for assessing clemency hearing applications, nor are members required to explain their decisions. Public hearings on clemency petitions are not required by state law, and defense attorneys are not allowed to review or rebut claims  against clemency made by prosecutors.

Advocates for reforming the Texas Department of Criminal Justice have cited these issues when criticizing the Texas clemency process as  “opaque and arbitrary.”

Though the BPP has made recommendations for commutation and  clemency, most of these have been denied by the governors. Since 1976, Texas has granted clemency for humanitarian reasons to only two death row inmates—Henry Lee Lucas (possible innocence claims) in 1998 and Kenneth Foster (simultaneous trial with co-defendant) in 2007.

Kenneth Foster and the Law of Parties

The case of Kenneth Foster Jr. sparked an international movement throughout the summer of 2007 that led to an unprecedented commutation.

Kenneth was sentenced under the Law of Parties (LOP), which allows the death penalty for those who aid in felony murder.  Even if a person did not harm anyone, they can still get the death penalty if they were involved in a crime where someone else killed a person, because they should have “anticipated that a human life would be taken.”

Adopted in 1974, Texas is the only death penalty state to use such a law so aggressively.  Of the almost 400 people on Texas death row, about 80 men have been convicted under LOP, even though they killed no one, by the state’s own admission.

In Kenneth’s case, he was sent to death row for driving a car around with a group of friends one night—toward the end of the evening, Mauricio Brown exited the car, got into an altercation and shot Michael LaHood. No one disputes that Kenneth never shot anyone, or that the murder was unplanned. But because there was a gun in the car, and because the men had carried out some robberies earlier in the evening, the prosecution argued that the murder should have been anticipated.

The CEDP and other abolitionists worked closely with Kenneth’s family on a months-long campaign that included rallies, music benefits, petitioning and support tables, forums, and press conferences.  We delivered over 11,000 clemency letters to the BPP, and surrounded the governor’s mansion with the letters.

The summer of activity paid off when—in a surprise move—the BPP recommended clemency, and on August 30, with just a few hours to spare before the execution, Perry commuted Kenneth’s sentence to life.

Since then, the CEDP has continued to work in coalition with other groups and family members of defendants in LOP cases, including the case of Jeff Wood, who received the death penalty even though he wasn’t even in the store where a murder occurred. He could soon be facing another execution date. We will continue to hold marches, rallies and lobby the legislature for a change in the law.

A chance for change

The crisis in the Texas death penalty and the continued activism against it has not gone unnoticed. Major newspapers in every Texas city have come out against the death penalty. The Dallas Morning News, a longtime supporter of the death penalty, said this about reversing its position: “This [editorial] board has lost confidence that the state of Texas can guarantee that every inmate it executes is truly guilty of murder.”

Death sentences are declining sharply.  Harris County (Houston), once the conveyor belt to death row, just recently sent someone there for the first time in two years.

In early March, Houston judge Kevin Fine shocked the world by ruling the Texas death penalty unconstitutional. Although he quickly rescinded the actual ruling, Judge Fine has ordered hearings on the question and plans to call witnesses to testify to the fact that the death penalty executes innocent people.

There is an opportunity for death penalty opponents to go on the offensive, especially in light of the governor’s race.  The CEDP has plans to expose Rick Perry’s record on executions during the campaign season and to  challenge the Democratic candidate Bill White to take a stand against the death penalty.

The CEDP in Austin continues to organize with anti-death penalty groups across the state in efforts to raise awareness of Texas’ miscarriage of justice in capital cases and also its failure to address the growing crisis  facing the death penalty.

By struggling to save the lives of death row prisoners—Rodney Reed, Hank Skinner, Jeff Wood and Louis Castro Perez, among others—we have drawn closer than ever before to ending the death penalty in Texas. If we succeed here, in the heart of capital punishment of the United States, then national abolition of the death penalty cannot follow far behind.

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