Law review: Texas executed wrong Carlos based on biasing eyewitness procedures

A new e-book published by a law journal argues that Texas probably executed an innocent man in 1989, and predictably the potential cause was reliance on a single, shaky eyewitness to obtain a conviction after police allegedly picked up the wrong "Carlos." According to the Houston Chronicle:

Accounts of the crime, the investigation and DeLuna's prosecution were presented in a 400-page article published Tuesday in the Columbia Human Rights Law Review. Columbia University Law School authors argue that the crime actually was committed by Carlos Hernandez, a DeLuna acquaintance with a history of convenience store robberies. Hernandez, the article says, boasted of killing the store clerk

DeLuna was executed by injection in 1989. Hernandez died in prison, convicted of a knife attack on a female acquaintance, in 1999.

Of four people who saw events connected to the crime, only one, car salesman Kevan Baker, saw Lopez struggle with her assailant, the journal article says. Baker initially described a man who did not resemble DeLuna but changed his story after police brought DeLuna to the store.

Baker later told researchers he was only 70 percent sure of his identification, the journal says. Had police not told him DeLuna had been apprehended nearby, he would have been only 50 percent certain, he said.

A retired Corpus Christi police detective said confidential informants told him at the time they'd arrested the wrong "Carlos" for the crime, but after the eyewitness picked out DeLuna he dropped the issue because it was somebody else's case.

The Chronicle pointed out that new procedures Texas law-enforcement agencies must have in place by September 1 may mitigate such questionable IDs going forward, which is true at least to the extent departments adopt best practices enshrined in the recently developed model policy or something close to it:

Legislative sponsors of a law tightening procedures for police lineups on Tuesday faulted Corpus Christi police for allowing eyewitnesses in a 1983 convenience store robbery-murder to identify the suspect as he sat handcuffed in the back seat of a squad car.

State Sen.  Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect's identification was a "textbook example" of why the system needs to be reformed.

"What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case," Ellis said in an email.

"... The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases."

The Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State which developed the model policy is currently doing train the trainer seminars to help departments prepare for the transition.

One of the LEMIT policy provisions would require departments to record eyewitness identification sessions using either video or audio, or else record the reason why that couldn't be done. And the model policy instructs officers not to share information about the suspect with a witness that might bias their memory, as was done here. Those procedures certainly may have made a difference in DeLuna's case. It's doubtful even a Texas jury in 1983 would have been so bloodhirsty as to send a man to execution based on a witness who was "50 percent certain." Indeed, without having read the massive document, on the surface there seem to be (at least) two issues here: The failure of identification procedures and a possible Brady violation if prosecutors failed to inform the defense of the witness' waffling.

In the Bible, Moses, Jesus and the Apostle Paul all iterated that at least "two or three witnesses" were necessary to accuse someone under biblical law. DeLuna's example shows why that cautionary provision is probably still a good idea. Particularly when identifying strangers, eyewitnesses can be notoriously unreliable.

DeLuna joins a notable list of "probably nots" on Texas' executed list, notes the Chronicle: "Innocence Project co-director Barry Scheck hailed the journal article as a 'terrific job,' saying that the DeLuna case will join those of Cameron Willingham, Claude Jones and Ruben Cantu in forming a stern indictment of the Texas death penalty." Grits does not share Scheck's sanguine belief that demonstrating an innocent person has been executed would result in death-penalty abolition. Grimly, the public is willing to live with a few mistakes, but the list of potential, even probable errors is growing.

'Death row inmate's case about more than innocence'

Brandi Grissom has a story at the Texas Tribune with the same title as this post about the habeas claims of death-row inmate Rob Will, who was condemned for a 2000 murder of a Houston Deputy Sheriff. Writes Grissom:

Witnesses have testified that another man confessed to Deputy Hill’s murder. But in a January ruling, U.S. District Court Judge Keith Ellison lamented that even though he was concerned Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

Will’s best chance for a new trial may lie with an Arizona case that the U.S. Supreme Court is soon expected to rule on. States across the country are anxiously awaiting the ruling, which could establish that defendants have a constitutional right to adequate appellate lawyers. For some states, that could require major spending on court-appointed lawyers for thousands of convicts.

The federal case mentioned is Martinez v. Ryan, which has been heard at oral argument (see the transcript [pdf]) but not yet decided. See SCOTUSBlog's page on the case, where the "plain English" description of the case reads: "Ordinarily, criminal defendants have a constitutional right to have a lawyer appointed to represent them at their trial and during their direct appeal, but not during any subsequent post-conviction proceedings. When a state system only allows prisoners to argue that their lawyers were inadequate during post-conviction proceedings, does the defendant have a right to appointed counsel during that proceeding?"

Texas Attorney General Greg Abbott signed on to an amicus brief (pdf) opposing the right to counsel in such cases, while the Innocence Network, of which my employers at the Innocence Project of Texas are a member, issued an amicus brief (pdf) on the other side.

Setting aside the legal merits of the case, IMO there's a strong policy argument for providing counsel for more post-conviction writ claims. Quite honestly, habeas litigation is such a mess, with so many badly crafted pro se filings clogging the docket, it might relieve the courts and make the system a lot cleaner if counsel were appointed to do one serious habeas claim instead of a bunch of petty ones that the prisoner either writes up on their own or barters for some untrained writ writer to prepare. The Court of Criminal Appeals get thousands of habeas claims each year, and state laws limiting so-called "subsequent writs" (intended to reduce post-conviction litigation) mean that, if pro se litigants don't get it right the first time, often they don't get another chance later if and when an attorney tries to take a more serious shot.

In Will's case, it seems like he really did have ineffective counsel. Wrote Grissom: "In Will’s first appeal, his state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Will’s case. Ribnik defended his work, but in 2006, the Texas Court of Criminal Appeals removed him from the list of approved death penalty defense lawyers."

Providing indigent counsel for habeas writs - particularly those alleging ineffective counsel in their original proceedings, but really in most cases - would make the habeas process more of a truth seeking endeavor. In the current process, as in Will's case, too often procedure trumps substance, focusing on the bureaucratic exercise of seeking out errors by non-lawyers as an excuse to dismiss writs as rapidly as possible, if only in order to make a dent in the ever-expanding pile.

Like the pardon power, 21st century habeas corpus has been largely denuded of its ability to fulfill the function the Founding Fathers envisioned for it in the 18th. When a federal judge can write in a capital case, truthfully, that “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction,” then we've reached the point where mass incarceration - indeed in Will's case even capital punishment - rests primarily on procedural justifications, no longer moral ones.

Executing innocents still okay after SCOTUS cert denial; will Texas take them up on it?

Like Pontius Pilate washing his hands of the dispute, the US Supreme Court yesterday declined to consider the question of whether the US Constitution permits the execution of an innocent person if the government has not violated their due process rights. The issue could have been taken up in the Texas death-penalty case of Larry Swearingen, but SCOTUS denied cert (i.e., they refused to hear it). Reports Bloomberg News:

Questions about the constitutionality of executing an innocent person are a “brooding omnipresence” in federal law that have “been left unanswered for too long,” Judge Jacques Wiener wrote in a 2009 ruling on Swearingen at the New Orleans- based 5th U.S. Circuit Court of Appeals. Swearingen’s appeal “might be the very case” for the Supreme Court “to recognize actual innocence as a ground for federal habeas relief,” Wiener wrote.

Swearingen was sentenced to die for the murder of 19-year- old Melissa Trotter, a college student who disappeared on Dec. 8, 1998, and was missing for 25 days before her body was discovered in Sam Houston National Forest, north of Houston.

Swearingen, who knew Trotter and was seen with her on the day she disappeared, was considered a suspect early in the police investigation. He was arrested Dec. 11, 1998, on unrelated warrants and has been in jail ever since.

Swearingen’s lawyers say forensic specialists -- including the medical examiner who testified for the prosecution -- have looked at evidence that wasn’t considered at Swearingen’s trial and now agree that Trotter’s body was placed in the forest no earlier than Dec. 18, 1998, a week after Swearingen’s arrest.

More than that, Swearingen’s lawyers say medical examiners who looked at tissue samples say Trotter’s internal organs were in a condition suggesting that she was killed no more than several days before her body was found.

The Innocence Network, an umbrella group of more than 60 organizations that helps prisoners uncover favorable evidence, said in a friend-of-the-court brief that Swearingen has “an airtight alibi -- he was in jail when the victim was murdered.”

Imposing the death penalty on someone who isn’t guilty of a capital crime, Swearingen’s lawyers said, would violate the Eighth Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s due process protections.

Texas authorities said strands of Trotter’s hair were found in Swearingen’s truck, and fibers matching Swearingen’s jacket, bedroom carpet and truck upholstery were found on Trotter’s clothing. Cleaning Swearingen’s trailer after Trotter’s body was discovered, the suspect’s landlord found part of a torn pair of pantyhose that, prosecutors said, matched hosiery used to strangle the victim.

Swearingen’s case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate’s rights have been violated.

For readers interested in more detail, Jordan Smith at the Austin Chronicle last year had an excellent, detailed article explicating the new forensic evidence in the case.

The question is, can habeas corpus reviews by appellate judges only examine procedural questions or if defendants can ask for relief simply based on actual innocence, as in, "I didn't do it." The issue is most poignant in capital cases like Swearingen's where the punishment is permanent, but the implications are even more far reaching.

While it almost seems offensive to say the Constitution permits the execution of an innocent person, as Bloomberg News put it, "as the law now stands, even uncontested scientific proof of innocence isn’t a valid reason for a federal judge to stop an execution." It remains thus with this disappointing SCOTUS non-decision. (Of course, the Constitution's authors envisioned that a robust pardon power would prevent such injustices, but Goveror Rick Perry's pardon record provides only glimmers of hope that that might happen in Swearingen's case.)

In addition to the hot-button culture-war question of whether the Constitution permits executing the innocent, Swearingen's case also implicates Texas habeas law. The Court of Criminal Appeals belatedly ordered a hearing on the new scientific evidence, which coincidentally began in Houston yesterday. Reported the Houston Chronicle:

An expert entomologist testified for the defense Monday that insect evidence used in Swearingen's murder trial was improperly collected and stored, making it impossible to correctly estimate the time of death of the 19-year-old victim, Melissa Trotter.

The testimony came during a hearing ordered by the Texas Court of Criminal Appeals after it granted Swearingen a reprieve on July 28. He was set to die by lethal injection on Aug. 18.

State District Judge Fred Edwards must review new evidence dealing with heart and liver tissue and a due process violation. Edwards will submit his findings to the appeals court, which will decide if Swearingen should receive a new trial.

Depending on the outcome of that hearing, perhaps this case will give the CCA an opportunity to overturn their despicable misstep in Ex Parte Robbins.

What a remarkable case. SCOTUS chickened out on addressing perhaps the most high-stakes question in constitutional law, which leaves the matter in the hands of the Texas Court of Criminal Appeals, and thereafter quite literally at the mercy of the Board of Pardons and Paroles and Gov. Perry.

This is not the Todd Willingham case where new expert testimony was elicited at the last moment when courts and the Governor had little time to consider it. If Swearingen is executed despite hard scientific evidence of actual innocence, it will have happened following a slow, deliberate process whereby, from Washington to Austin, those responsible for ensuring the integrity of the system chose to look the other way.

'Review' of death penalty doesn't diminish public demand for blood sacrifice

Dallas County District Attorney Craig Watkins this week revealed that his great grandfather was executed by the state of Texas. According to AP, his reference was to:

the execution of his great-grandfather, Richard Johnson. According to state criminal records and news accounts, Johnson escaped from prison three times while serving a 35-year sentence for burglary, and he was charged with killing a man after his third escape. He was convicted of murder in October 1931 and executed in the electric chair in August 1932.

Watkins said he did not get a full explanation of what happened until he became district attorney. His grandmother, who was a young girl when her father was executed, still struggles with the story, according to Watkins and his mother, Paula.

Whether because of this reveation or coincidental to it, Watkins announced he's reconsidering his position on capital punishment, somewhat opaquely calling for a review of the death penalty in Texas. Grits must admit, I never know what that means whenever it's said. How much more "review" can there be? It's virtually the only criminal justice-issue besides police shootings that the MSM consistently covers.

I don't care how much you "review" the death penalty, the Texas public overwhelmingly supports it, even if it turns out the state has executed an innocent person. My boss Jeff Blackburn has called the death penalty Texas' "state religion," and in many ways I think that captures it: For the public, it's important for the same reasons the Aztecs valued ritual blood sacrifice. Blood sacrifice among the Aztecs didn't really make the seasons change or impact cosmology, just as our modern, more sanitized version does little to reduce murders or crime. (Ironically, though murder rates have gone down everywhere, they've declined less rapidly in states like Texas that use the death penalty most frequently.) But you could never convince Aztec priests nor politicians supporting the death-penalty of that intellectual disconnect because it's important to the public at an almost psychic and/or symbolic level: "The world is a terrible place so we must do a terrible thing to make it right."

To me, whether the death penalty is right or wrong is not a rational question with a "correct" yes or no answer. One's opinion on it usually tells you more about the person than it does the issue - it's in many ways a moral, ethical and political Rorschach test - and the best answer, as is frustratingly often the case, is "it depends" ... as always, pending review.

Good blogging by others

Several posts from other Texas blogs related to topics sometimes discussed on Grits deserve readers' attention:

Some Harris County grand juries runaway, some never leave the station
I haven't written much about the "runaway" grand jury in Harris County evaluating potential misconduct by the District Attorney, nor the apparent failure to timely empanel grand juries in the new year, mainly because the process is secret and at this distance I can't make hide nor hair of what's happening amidst all the campaign-driven allegations and counter-allegations. Some folks closer to the action, though, are attempting to divine the true circumstances, most notably Mark Bennett, who analyzes the imbroglio here, and Murray Newman, who sees the delay in empaneling grand juries as nigh-on the end of the world.  Paul Kennedy, by contrast, can't understand what all the fuss is about. Much more serious, clearly, is the grand jury's subpoena of DA Pat Lykos, which seems like a late Christmas present to Newman. Bennett considers it "unprecedented for a Texas grand jury to subpoena a sitting District Attorney. Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the Fifth, it’s because she really means it." Good stuff all around. The Houston legal blogosphere is working through these issues more quickly and deftly than the MSM.

Kuff: Still "too many" inmates after Harris jail pop reduction
Charles Kuffner reacts to good news that murders are down nearly as much as the local jail population, a development discussed in this Grits post. Kuff suggests that "We have patched this problem, for which the county’s multiple-year hiring freeze is an exacerbating factor, by squeezing a lot of overtime out of the guards, a solution that is both unfair to them and expensive to us. Now that we’re not paying Louisiana to house some of our prisoners, maybe we can take some of the money we’d been spending on that and use it to hire a few more guards. The Sheriff will make that request at the Tuesday Commissioners Court meeting. I can’t wait to hear what their excuse to turn him down will be this time."

Cart before horse: Implications of possible innocence in Lake Waco murders
The Texas Moratorium Network has a pair of posts discussing the possible implications if DNA testing in the 30 year old Lake Waco murders comes back exonerating the men convicted of the crime, which could prove for the first time that the state has actually executed an innocent man:

• New development in seeking DNA testing in Lake Waco murders for sole surviving defendant (other defendant David Spence already executed)
• Did George W. Bush execute an innocent person: David Wayne Spence?

While I'm interested in this case, regular readers know Grits doesn't believe "proving" an innocent person was executed will be the silver bullet many death-penalty abolitionists hope. Moreover, I've learned from harsh experience that one never knows what the results of DNA testing will be until it comes back from the lab. If the two men convicted are actually innocent, for the sake of the remaining fellow I hope the DNA can prove it; if they were guilty, I hope that's proven, too. The worst outcome where a past execution is involved would be if the tests came back inconclusive (as happens, I'm told, about a third of the time) or if DA Abel Reyna were to succeed (as seems unlikely) in his effort to suppress DNA testing. You don't want more cases hanging out there like Todd Willingham's where unresolved doubts linger forever, undermining public confidence almost more than if the execution of an innocent had been definitively proven.

Bias, the judiciary and the death penalty
Another post from the Texas Moratorium Network chides the Texas judiciary for only being intolerant of bias in one direction: If Teresa Hawthorne Must Recuse Herself From Death Penalty Case, Then Sharon Keller Must Recuse Herself From All Cases. The post opens, "In Texas it is apparently ok for a Republican judge to say that they are “pro prosecution”, as Judge Sharon Keller has done, and not have to recuse herself from any cases, but if a Democratic judge expresses any doubts about the constitutionality of the death penalty, then she must recuse herself. If Teresa Hawthorne must recuse herself from the current death penalty case because of “bias”, then Judge Sharon Keller should recuse herself from all cases before her court." Mike Hashimoto at the Dallas News was less kind to Judge Hawthorne, calling her opinion "goofy." See more from the Dallas Observer blog.

LWOP created boomlet in TX capital cases along with death penalty decline

Several disparate, recent stories combine to paint an unlikely picture of capital murder sentencing in Texas. Since the state introduced the option of a life-without-parole (LWOP) sentence for capital murder in 2005 - simultaneously eliminating the possibility of parole for capital crimes - the number of capital cases filed has escalated, reports the Odessa American, while the number of new death sentences has plummeted (from 48 in Texas in 1999 to 8 this year). Meanwhile, of course, murder rates have continued to decline over the same period.

What does it all mean? For starters, that the increase in capital cases does not result from more heinous murders (there are actually fewer) but from changing prosecutorial charging decisions. Prosecutors are pursuing capital cases more often where they previously would have sought plain old murder charges because it provides a bigger stick to threaten defendants with (i.e., death) during the plea bargaining process. Even though more capital cases are getting charged, however, most prosecutors who're driven by pragmatic as opposed to political motives prefer not to pursue the death penalty, which can be so costly that smaller counties sometimes have had to raise taxes or issue bonds to pay for a single case. So we get this boomlet of "capital" cases, but nearly all of them result in LWOP instead of death sentences.

It's also pretty clear that - with murder rates declining in Texas while both the frequency of executions and new death sentences also declined - it'd be impossible to attribute the murder reduction to any supposed deterrence effect from capital punishment. If there's any correlation at all (notice I didn't say causation), the murder rate declined more or less in tandem with the declining use of the death penalty in Texas, and was much higher back in the '90s when it was exercised more frequently.

Other than that, it's hard to know what conclusions to draw from such counter-intuitive data except that prosecutorial discretion matters a lot more in what sentences defendants end up with than is frequently considered by those writing the laws. I'm not sure the LWOP bill would have passed if the Lege had known the result would be a much larger number of capital murder charges filed. Perhaps, but it certainly wasn't part of the terms of debate at the time.

RELATED: Rise of LWOP sentences contributes to Californication of Texas justice

'The GOP and Criminal Justice'

At The Crime Report in an article with the same title as this post, Steve Yoder argues that Rick "Perry’s death-penalty record (presiding over more executions than any governor in modern times) obscures reform-minded legislation he’s signed," suggesting that "Whether a Republican president signs on to reform measures ... would depend on which contender won. As former governors, Perry and Mitt Romney have legislative records that suggest they’re open to change."

See related Grits posts:

• New York Times takes on Perrty's mixed criminal justice record 
• Perry should expand clemency, trump Obama in Christmastime ritual 
• Perry signed bill vetoed by Gov. Moonbeam banning shackling of inmates giving birth 
• Texas death sentences plummeted during Bush, Perry tenures  
• Rick Perry has little role in 'ultimate justice 
• Should reformers praise or chastise Rick Perry's criminal justice record? 
• Things to like about Rick Perry as a criminal justice reformer

New York Times takes on Perry's mixed criminal justice record

The New York Times published a feature today by Deborah Sontag on Gov. Rick Perry's Texas criminal justice record, mostly focused on the death penalty but with a handful of comments, including from your correspondent, suggesting that the exclusive focus on capital punishment risks ignoring more moderate aspects of the Governor's record:

Scott Henson, author of “Grits for Breakfast,” a well-read blog on Texas justice, said that Mr. Perry, believing that “only egg-headed liberals” oppose the death penalty, liked to bait the news media so he would be given a chance to show some swagger.

“And y’all take the bait,” Mr. Henson said, “even though Rick Perry has nothing to do with executions. All his bluster about the death penalty is like the rooster who crows taking credit for the sun rising.”

Grits has argued an admittedly counterintuitive position articulated best in the story by my colleague Jeff Blackburn from the Innocence Project of Texas. He told Sontag that the politics of capital punishment make it a special case but that, by comparison, the rest of Perry's criminal justice record is admirably moderate:

Death sentences and average yearly executions have declined during [Perry's] tenure compared with that of his predecessor, George W. Bush. And persistent efforts to fix Texas’s troubled justice system have finally borne some fruit. Mr. Perry has not been a crusader, but he has signed reform-minded legislation and acknowledged some of the system’s mistakes, once referring to an exonerated prisoner’s murder conviction as a “great miscarriage of justice.”

“He has done more good than any other governor we’ve ever had,” said Jeff L. Blackburn, chief counsel of the Innocence Project of Texas. “He approaches criminal justice issues like a lay person rather than like a prosecutor or judge, which makes him open-minded and willing to embarrass the system. Unless, of course, it involves the death penalty.

“On the death penalty, Rick Perry has a profound mental block,” Mr. Blackburn continued. “The death penalty is part of our fine state’s religion; it’s somewhere up there with football. To oppose or weaken it would be like playing with dynamite, and Rick Perry, a quintessentially political person, is not going to blow himself up.”

Certainly on any issue remotely related to the death penalty Gov. Perry may be counted on to give voice to the most extremist, regressive and aggressive positions possible, blatantly pandering to what Blackburn called the "state's religion." The on-the-ground reality, though, looks much different. Sontag notes that, during Perry's tenure, the number of new death sentences in Texas steadily declined from 33 in his first year in office to seven last year, at least in part because of legislation Perry signed into law improving capital defense standards and creating a life without parole option for juries. Meanwhile, Texas passed a slew of criminal justice reform measures unrelated to the death penalty on Perry's watch. And after the Tulia scandal, on the advice of his "fixer," Jay Kimbrough, Perry boldly de-funded the state's system of regional narcotics task forces to pay for drug courts, diversion programs and border-security initiatives.

In the scheme of things, the death penalty is a minor piece of the justice system. It's worth remembering that, while seven new people were sent to death row last year, at any given moment around 750,000 adults in Texas are in prison, jail, on probation or on parole. Capital punishment may be important to many from an ideological perspective, but too often myopic focus on the death penalty by activists and the media drown out debates over issues surrounding the other 3/4 million people supervised by the Texas justice system.

Governor Perry is no reformer and his views on the justice system certainly don't reflect my own. But neither does the caricature of Rick Perry as an execution-crazed, tuff-on-crime Yosemite Sam figure stand up to close scrutiny. The Times article shows the national media is struggling to make sense of the disconnect.

See related recent Grits posts:

• Perry should expand clemency, trump Obama in Christmastime ritual

• Perry signed bill vetoed by Gov. Moonbeam banning shackling of inmates giving birth

• Texas death sentences plummeted during Bush, Perry tenures

• Rick Perry has little role in 'ultimate justice

• Should reformers praise or chastise Rick Perry's criminal justice record?

• Things to like about Rick Perry as a criminal justice reformer

'No sugar coating' prosecutorial miscondcuct in death penalty case

I received the following press release today from the ACLU Capital Punishment Project about alleged prosecutor misconduct in a death penalty case:

Due Process Demands Texas Man Who Maintains Innocence Be Given New Trial

The American Civil Liberties Union today argued before the Texas Court of Criminal Appeals that a man should be given a new trial because serious misconduct by a special prosecutor led to his capital conviction despite grave questions about his guilt.

Manuel Velez was sentenced to death in 2005 for the murder of a one-year-old boy based on the false testimony of his live-in girlfriend and mother of the child. The woman, Acela Moreno, failed to admit she had pleaded guilty to inflicting her son with head injuries the day he died. Medical experts made clear these injuries were consistent with those that led to the child’s death. At Velez’s trial, Moreno testified she pleaded guilty not to committing violence against the child but rather to having failed to alert authorities that Velez had allegedly been hurting the child.

The special prosecutor in the case negotiated the plea deal with Moreno and so knew she was covering up her own abuse of the child; indeed, he told the judge presiding at Moreno’s plea that she had injured the child.

But at Velez’s trial, he did nothing to set the record straight. He then presented Moreno’s false testimony as fact during closing arguments, repeating that she was guilty only of having failed to alert authorities.

“The Constitution requires that our judicial system be fundamentally fair, and this case was riddled with unfairness,” said Brian Stull, senior staff attorney with the ACLU Capital Punishment Project, who presented arguments in the case. “We should never be comfortable with sending a man to his death when we know that the state has relied on falsehood to convict him. In cases where the irreversible sanction of the death penalty is involved, it is imperative that due process be fully upheld to ensure that innocent people aren’t executed.”

Velez has maintained his innocence, there are no eyewitnesses accusing him of the crime and no forensic evidence links him to the murder.

Last week, three of the nation’s pre-eminent legal ethicists filed a friend-of-the-court brief in support of the ACLU’s argument that Velez should be granted a new trial. The brief, filed on behalf of Robert P. Schuwerk, a professor at the University of Houston Law Center, Lillian B. Hardwick, a regular consultant and expert witness on legal and judicial ethics in Texas, and Monroe H. Freedman, a professor and former dean at Hofstra University law school who is known as a pioneer in the field of legal ethics, says the conviction of Velez is a miscarriage of justice.

“There is no sugar coating what occurred here,” the brief reads. “Both the defendant’s conviction and his sentence of death are derived from a pervasive course of misconduct on the part of the special prosecutor.”

More information about Velez’s case is available online.

Texas death sentences plummeted during Bush, Perry tenures

The number of Texas executions may draw cheers for Rick Perry on the campaign trail, and certainly it's been a big applause line for the governor that, "in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you're involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed." That's tough talk, but is it true? At Courtex, Office of Court Administration chief Carl Reynolds says that "imposition of the death penalty has gone down fairly dramatically in recent years," and yesterday published this remarkable chart to prove it:

Carl adds, "one thing I find interesting about this graph is the fact that life without parole was not adopted until 2005 (S.B. 60 by Lucio), but the downward trend was well established well before then." I agree, and that's one reason Grits opposed the 2005 LWOP law, believing that death-penalty abolitionists were throwing their clients under the bus in deference to ideology by eschewing the "capital life" option. In the future, as the use of LWOP broadens (it's already been extended to certain non-capital cases) and geriatric healthcare costs continue to skyrocket, IMO that decision will increasingly appear foolish and ill-advised, contributing to the Californication of Texas justice. (About 6% of Texas prison inmates are lifers, compared to 20% in California.)

Other charts at Courtex demonstrate a similar drop in new death sentences in Harris County, which is responsible for 106 of 308 offenders on death row, Reynolds reports.

MORE: A prison-guard commenter at TexasJutsice.org agrees with criticism of the LWOP law for a different reason: "because they have no incentive to behave. Look at the last Polunsky escape attempt. All LWOP."

Rick Perry has little role in 'ultimate justice'

John Burnett at NPR has a piece up on Governor Rick Perry and the death penalty titled "In Texas, Perry has little say in 'ultimate justice'," in which your correspondent is briefly quoted. Burnett notes that, "It's often said the Texas governor 'presides' over an execution, but that's inaccurate. He doesn't sign a death warrant or set an execution date, as in some states. In Texas, the only power the governor has is to grant a single 30-day reprieve — and then only if his Pardons Board recommends it."

Indeed this is the first national news story I've seen to give Rick Perry credit for actually reducing the number of death sentences in Texas via life without parole legislation he signed in 2005, reporting that:

eight people were sent to death row last year in Texas, compared with 49 death sentences in 1994.

Criminal justice advocates won't go so far as to call Perry a reformer, and indeed, the governor has done little to exercise clemency in death penalty cases in which there are clear procedural flaws.

But to judge him solely on the 236 executions on his watch is unfair, says Scott Henson, who writes the respected criminal justice blog Grits for Breakfast.

"Capital punishment is a media fetish," he says. "It's not really something that stands out as a remarkable part of Rick Perry's criminal justice record."

Henson has a theory: Perry has so little to do with executions that he strains to take credit for them, knowing how popular capital punishment is with voters.

An ally from the Lege emailed to point the story out to me and declared, "I'm sure you will get some hate mail from the anti-dp crowd," but "I think you're right."

See these related, recent Grits posts:

• Should reformers praise or chastise Rick Perry's criminal justice record?
• Things to like about Rick Perry as a criminal justice reformer

Should reformers praise or chastise Rick Perry's criminal justice record?

Via Sentencing Law & Policy, my colleague Cory Session of the Innocence Project of Texas went just a bit further in praising Governor Perry's criminal justice record than Grits would have. According to Yahoo! News:

Cory Session's brother Tim Cole died in the middle of a 25-year prison sentence for a crime he didn't commit.

So it's something of a surprise that Session, who serves a policy director for Texas' Innocence Project, has nothing but good things to say about Texas Gov. Rick Perry.

Perry is known as a tough-on-crime governor who heartily supports the death penalty. He's presided over more executions than any other governor since the death penalty was reinstated 35 years ago. When a special commission began to look into evidence that Perry could have presided over the execution of an innocent man, the governor abruptly removed three of its members and appointed allies in their stead, effectively quashing the probe.

But Session says Perry's support of other criminal justice reforms overshadow his record on the death penalty.

"Governor Perry has done an exceptional job when it comes to criminal justice reform, more so than any other governor in Texas history," Session told The Lookout. "That's a record nobody can take away from him. His stance on the death penalty, well that's another thing. But we are very pleased with that record that he has."

Readers may recall that last month Grits compiled a list of "Things to like about Rick Perry as a criminal justice reformer," citing a fairly substantial list of criminal-justice reforms Perry has signed into law over the years, as well as his pardons of Tim Cole, the Tulia defendants, and other reform-minded actions.

Nearly all of the national criticism of Texas justice during Perry's campaign has centered on the death penalty, but seldom is Perry given credit for signing a life-without-parole law in 2005 that reduced new death sentences to low levels not seen since the Texas reinstated the practice three decades ago. In FY 2009, according to the Texas Coalition to Abolish the Death Penalty, Texas juries sent just eight new defendants to death row - the lowest number in any single year under (at least) the state's four prior governors. That's a direct result of legislation Rick Perry signed. (CORRECTION: A reader alerts me that, according to TDCJ's annual statistical reports, 11 new defendants were sent to death row in FY 2009 and 10 in FY 2010, numbers which are for some reason slightly higher than reported in the MSM.)

It's been said many times that Texas executed more people during Rick Perry's tenure than under any modern US Governor, but that stems mainly from two factors: His longevity in office and the fact that, because death cases take so long to get through the appeals process, the number of executions in any given year more reflects the policies of the past than the present. Most executions on Perry's watch stemmed from convictions obtained during the tenures of Ann Richards, Bill Clements, and Mark White, plus a few from the Bush era, and his record on the subject differs little from those governors save for his support of life without parole (which couldn't pass under any of his predecessors when Democrats controlled the Legislature). He also signed into law the Texas Fair Defense Act, which created improved standards for attorneys representing death-eligible clients.

Despite the common refrain that Perry "presided" over 235 executions (so far), it's not like he plays a big role in the process. The number of death sentences carried out in Texas really is a function of decisions made years ago by prosecutors, juries and judges, (not to mention the shortcomings of an often pathetic criminal defense bar). The Governor simply has very little to do with it, and his clemency power is much more restricted than executives in other states. Just as his critics overstate the governor's role, Rick Perry claiming credit for the number of executions in Texas is a lot like the rooster who believes his crowing caused the sunrise.

IMO, Perry has latched onto the death-penalty issue so vehemently because it's virtually the only item in his portfolio that crosses partisan lines to grab independents and conservative Democrats (since the death penalty is widely supported across all those demographics). Indeed, polls show that even those who believe the state has already executed an innocent person still support the death penalty by roughly a 60-40 margin. From a purely Machiavellian political standpoint, there's simply no downside for politicians in Texas (or in the GOP primary) from being seen as an eager executioner.

Indeed, arguably death-penalty demagoguery has played an important strategic role in Texas' criminal justice reforms, diverting media focus from more  workaday criminal justice issues to an area where pols can look "tuff," even as they enact more moderate or even progressive reforms in other areas. Perry has signed legislation diverting tens of thousands of criminals from prison, but because of the "most-ever executions" tag, it'd be impossible in the political arena to successfully label him "soft on crime."

All that said, I also agree with Texas Criminal Justice Coalition chief Ana Correa's assessment in the story, that "He has not been an obstacle for us but he has also not been a key leader." (In the interest of full disclosure, I'm presently employed doing consulting work for both TCJC and the Innocence Project of Texas.) Criminal justice reform has never been a Perry priority, but as support for reforms grew among Texas Republicans, quite a few good bills passed on his watch and with a few notable exceptions he usually signed them. Governors in Texas wield relatively little power save for vetoes and appointments, so not vetoing things gets him credit, in my book, but it doesn't mean he'd make criminal-justice reform any sort of priority if he were President. Indeed, I seriously doubt he would do so.

Rick Perry doesn't deserve demonization for his criminal-justice record; he's not the one-dimensional, execution-crazed nutjob that death-penalty abolitionists have portrayed. But he also doesn't merit the effusive praise Cory lavished on him in this particular article. Tolerating reform is different from championing it.

Should Murderers Suffer Like Theirs Victims? Attorney Andy Nolen

Will a cold-blooded monster deserve exactly the same fate because his target? Of program he will! No 1 questions it's wrong for just one human in order to kill an additional. Then is not it incorrect for governments to place humans in order to death? The actual condemned tend to be restrained through our brokers who intentionally and systematically kill all of them. And all of us watch this particular barbaric process. Or all of us can't provide ourselves to view it, however do absolutely nothing or state nothing in order to criticize this. Nor perform we vow to not let this continue since the condemned earned to pass away. Isn't this particular a throwback to some time sometime ago when obtaining even had been accepted as the only method to right the incorrect of eliminating another human being? It's exactly the same action competitor gangs perform in cities to obtain even repeatedly. We invariably think about it because inhumane as well as uncivilized. Can we like a nation--or because citizens--consider ourself more gentle and civil than individuals who believed--and nevertheless believe--in obtaining even?

Do we now have capital consequence because all of us can't think of a better solution to handle justice? Existence in jail without parole is actually accepted through abolitionists, although not by promoters of funds punishment. You will find, however, two alternatives that may satisfy everybody accept individuals with minds shut so firmly new suggestions can't leak in. These ways of serving justice might be used for that most heinous crimes while maintaining life without having parole with regard to ruthless however lesser offences.

One alternative is always to modify existence in jail without parole in order to confinement from hard labor for a lifetime without parole. This option would range from the absence associated with communications using the outside world for example letters, stereo, television, pc, telephone as well as visitation, except whenever earned through the prisoner following lengthy confinement.

The 2nd alternative is always to banish the actual condemned through civilization--all the world, no issue how simple. To banish these phones a location so remote that individuals sentenced would be asked to struggle each and every waking second to endure. Most may likely hold away for just a few weeks. Some might hold on for many years, if it's the will associated with God. It should be a place that no-one can escape and thus isolated that connection with the outdoors world is actually impossible.

Harris County  Criminal Defense Attorney Andy Nolen has over 19 years  experience representing persons accused of committing criminal violations of State and Federal law.

 Houston, Texas Criminal Attorney  Andy Nolen treats  every person they represent as if they were a friend and neighbor.   When you call, likely Andy Nolen will answer your call himself.  You will be dealing with Attorneys, not secretaries, assistants, or answering machines.

 If we can be of any assistance, or you just want to talk about your situation, please call Texas Criminal Defense Attorney  Andy Nolen at 713-697-4373.

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