By: Jolie McCullough
The Texas Tribune
The last execution in Texas was more than five months ago, the longest gap since 2008. While the hiatus eight years ago reflected a nationwide pause as the U.S. Supreme Court considered the constitutionality of lethal injection, this time the reasons for the slowdown are less clear.
Execution dates are still being set, but judges and courts have been rescheduling or stopping executions. At least two judges on the state’s highest criminal court say better lawyering by defense attorneys has contributed to the recent stays. Death penalty opponents are looking for a silver lining, hoping the court is more deeply scrutinizing the constitutional use of the punishment.
Six men have been executed so far this year, while 13 death sentences have been halted or delayed. Six were stopped by the Texas Court of Criminal Appeals, which recently issued four stays in four weeks.
Though executions and new death sentences have decreased in recent years, it is still rare for Texas to see a gap this long between executions. Since the death penalty was reinstated in 1976, Texas has killed nearly five times as many people as the state with the second-most executions, Oklahoma, according to the Death Penalty Information Center.
The recent bout of stays is “unusual,” said Court of Criminal Appeals Judge Elsa Alcala, who is well known for writing opinions criticizing the death penalty and how it is applied in Texas. Every stay the court issues is specific to its case, she said, but the surge in stays might indicate that defense lawyers have gotten better at presenting the right legal arguments to the court.
“The defense lawyers are getting better and better,” Alcala said. “They’re able to bring things forth that have never been brought forward before.”
Though unable to talk about specific cases, Alcala mentioned arguments regarding changed witness testimony and junk science. In two cases this year, Charles Flores and Jeff Wood, the court stopped executions and sent cases back to the trial courts to examine claims related to faulty or junk science.
Alcala also thinks a new Texas law may be playing a role in improving the filings the court receives. Senate Bill 1071, signed into law last September, requires district courts setting execution dates to notify the last lawyer who represented the inmate as well as the Office of Capital and Forensic Writs, a group of post-conviction public defenders in Texas.
“Back then, [an inmate] would be set for execution and they didn’t even have an attorney,” Alcala said. “So nothing would be filed or something very poor would be filed, and those would come and go with little litigation.”
Neither the OCFW nor the bill’s author, Sen. Juan Hinojosa, D-McAllen, could be reached for comment.
Court-ordered stays of executions aren’t rare, and many times an inmate will receive multiple stays during the course of their appeals. By this time last year almost the same number of stays had been issued, according to the Death Penalty Information Center, but executions continued as well.
Like Alcala, Judge Larry Meyers, who has served on the court for more than two decades, believes that perseverance by defense lawyers has impacted the recent stays. He also thinks changes in forensic science and the appeals process have affected the court.
“There’s just a lot more to look at,” Meyers said. “Our court is trying to be as diligent as we can to observe all these changes. That’s why a lot of these stays of execution are being issued.”
The shift isn’t limited to Texas, either. It’s a trend mirrored nationwide. The country has seen 15 executions so far this year compared to 20 by this time last year, according to the Death Penalty Information Center. In 2014, there were 29 executions before mid-September.
The last execution in Texas was on April 6, when Pablo Vasquez was killed by lethal injection for the 1998 murder and mutilation of a 12-year-old boy. His was the sixth execution of the year. By this time in 2015, there had been 10 executions.
Kathryn Kase, executive director of Texas Defender Service, believes changing ideologies on the court are contributing to the recent stays. Alcala and Meyers have both publicly acknowledged that their beliefs about the death penalty have changed since they started serving the court.
“I think there is a broader conversation going on at the Court of Criminal Appeals,” Kase said. “This punishment is becoming more and more unusual and when that happens it’s natural for appellate courts to start to talk about whether we’re bumping up against constitutional limits.”
A previous supporter of executing those convicted of capital murder, Meyers now believes the best alternative to the death penalty is actually life without parole, claiming the punishment is just another version of the death penalty.
When a person is convicted of capital murder, he believes it would be better if the choice for a jury was between life without parole and life with parole, as opposed to death or life without parole.
“Right now we just have two different options for the death penalty,” he said. “I’m saying remove the execution option.”
Meyers voted against the first four of six stays issued by the court this year.
Alcala has been even more vocal in her opposition of Texas’ death penalty laws. She said in a recent Tribune interview that if she were a legislator, she wouldn’t have the death penalty because she’s seen “so many problems.” As a judge, she said, her efforts are focused on implementing it responsibly and determining if the death penalty as it is applied in Texas is still constitutional.
“If you’re going to have the death penalty, then do it right,” she said. “If 70 percent of people on death row are minorities, at least let [an inmate] litigate that he got there because he’s a minority. Don’t deny him that hearing.”
Not everyone on the court appears to have shifting views, however. Presiding Judge Sharon Keller voted against four of the stays as well, including the last three. A request for comment from Keller was not returned.
In Harris County, where more death sentences have been handed down than in any other country in the nation, the recent stays don’t change much, said Assistant District Attorney Lynn Hardaway.
“It’s not going to change what we do, or what we think about when we’re getting ready to set a date,” Hardaway said. “We’ll continue to set dates.”
The Attorney General’s Office, which represents the state in federal appeals of death penalty cases, declined to comment.
Three other executions are slated for the rest of the year. Even if none are stopped, this year will have the lowest number of executions since 1996 if no other executions are set.