Aug. 25
TEXAS:
Jeff Wood's Stay of Execution Casts More Doubt on the Texas Death Machine
Terri Been was being interviewed by a reporter inside a Whataburger restaurant
in East Texas on the afternoon of August 19 when the text came in: Her brother,
Jeff Wood, on death row for his alleged involvement as an accomplice in the
1996 murder of his friend, and facing imminent execution, had been granted a
stay. She read the text sent by Wood's attorney twice before dialing him up.
"Are you serious?" she asked.
It had been a long and emotionally taxing day: Been and her husband, her
parents, Wood's daughter, and another friend had traveled to Huntsville, Texas,
the location of the state's execution chamber, for the first of several 8-hour
visits with Wood in anticipation that he would be executed sometime after 6
p.m. on Wednesday, August 24. The news from the lawyer, Jared Tyler, was a
serious relief. "I consider it a miracle," she told The Intercept. "He's
stopped Texas from killing my brother."
That afternoon the state's highest criminal court, the Court of Criminal
Appeals, agreed with Tyler that a state district court should determine whether
the punishment hearing portion of Wood's 1998 trial was infected by junk
science and misleading testimony offered by the notorious Dr. James Grigson. If
the district court agrees that it was tainted, Wood could get a new hearing,
and a chance to get off of death row.
Grigson, who died in 2004, was known even among peers in the psychiatric
community as "Dr. Death" for routinely offering scientifically unsupportable
testimony that helped to send defendants to death row in a number of capital
cases. He was expelled from the American Psychiatric Association and its Texas
counterpart prior to testifying in Wood's case, where he opined that unless
sentenced to die Wood would continue to be violent, a determination he made
without ever examining Wood.
But the court majority sidestepped - at least for now - the biggest question in
Wood's case: Is he legally eligible for the death penalty? That prompted a
strongly worded opinion from one of the court's 9 jurists, Elsa Alcala, who for
at least the 2nd time this year has called into question whether Texas' death
system itself is constitutional - an unusual stance for a jurist on such a
conservative and notoriously pro-death penalty court in the state with the
nation's most active execution chamber. Indeed, Alcala has been airing concerns
that have not been expressed in any meaningful way by any member of that court
in nearly 2 decades. Wood, she wrote, "may be actually innocent of the death
penalty because he may be categorically ineligible for that punishment."
An Unconstitutional Sentence
Wood is on death row even though he has never killed anyone. He was convicted
and sentenced to die for the January 2, 1996, robbery of a convenience store
that ended with the shooting death of his friend Kriss Keeran, who worked at
the store. But it was another man, Danny Reneau, who entered the store armed,
intending to rob the place, and who shot Keeran. Wood, Reneau, Keeran and
another store employee had planned an inside-job robbery for the previous day,
but the plan had been aborted. Wood said he had no idea that Reneau intended to
rob the store that day, and certainly had no idea that Reneau would kill
Keeran. After the murder, Wood admits that he did help Reneau steal money from
the store, along with a surveillance videotape, but says he did so only after
Reneau threatened to harm his daughter.
But a quirk of Texas law allows the state to seek the death penalty against a
defendant who never killed or intended to kill anyone. Known as the law of
parties, the law posits that if conspirators plan to commit 1 crime - in this
case a robbery - but in the course of events someone ends up committing another
crime (such as a murder) all parties are liable for the crime committed
regardless of their individual intent, under the notion that everyone should
have anticipated that the crime committed would occur.
Advocates and lawyers argue that Wood's impending execution would violate the
Eighth Amendment ban on cruel and unusual punishment. It is an argument that
would appear to be in line with U.S. Supreme Court precedent, which holds that
a sentence must be proportional to the crime committed. In 2 cases involving
parties to a planned crime that ended in murder, the court determined that the
death penalty would be unconstitutional when a person lacked either the intent
to kill or failed to exhibit a clear "reckless indifference" to human life.
No court has ever considered whether Wood's sentence was proportionate to his
crime. Although Tyler finally raised the question directly in Wood???s most
recent appeal, in staying the execution last week the Court of Criminal Appeals
declined to ask the lower court to address the issue - except for Alcala, who
opined in favor of addressing the question head on. "Perhaps one might suggest
that I should not concern myself with the fact that applicant's death sentence
appears to be unconstitutional under [Supreme Court precedent] because [Wood]
should have raised this claim at some earlier stage of his post-conviction
challenges and he is now procedurally barred from raising this challenge," she
wrote. "I, however, would disagree with that suggestion."
It was the latest in a string of opinions by the conservative jurist
questioning the legality of the death penalty and the approach of her
colleagues to affirming death sentences. Alcala, who was appointed by Gov. Rick
Perry, has questioned her colleagues' reluctance to allow inmates to present
evidence challenging the Texas system as racist and out-of-step with a nation
that is moving away from the death penalty. She has written strongly-worded
dissents in two notable cases, involving the question of whether racially
discriminatory testimony and poor lawyering condemned Duane Buck to die, and in
another urging her colleagues to act to "uphold the federal Constitution" by
setting up a modern and fair system for determining which defendants are barred
from execution because of their intellectual disability. In the absence of a
legislative standard, the court set up its own scheme for determining cognitive
disability, a standard based on the mental abilities of the character Lennie
from John Steinbeck's Of Mice and Men.
The level of skepticism Alcala has expressed regarding the state's death
penalty scheme - and her colleagues??? role in maintaining the status quo -
hasn't really been seen in Texas since Republicans took over the court in its
entirety nearly 2 decades ago. As conservative jurists came to power in the
1990s, a waning contingent of Democratic judges held on, including Judge
Charlie Baird, now a defense attorney in private practice in Austin. Baird said
he and his colleagues would regularly dissent from the majority's
rubber-stamping of death convictions. In 1996 Baird authored a dissent
suggesting that Texas was not fulfilling its promise to the U.S. Supreme Court
in the wake of the 1976 opinion that reauthorized the death penalty. Texas had
promised "we would interpret the statute fairly and apply the death penalty
fairly," he recalled. "And I don't think we ever kept those promises."
To be fair, other Republican judges have joined or written dissenting opinions
in the intervening years, but none so clearly skeptical of the system as
Alcala's - save for a literal swan song opinion by Judge Tom Price, who opined
in 2014, just before retiring his seat, that the death penalty "should be
abolished."
Although Alcala hasn't uttered the same words, she nonetheless stands out even
more than Price in 1 key way - her current term is up in 2018, meaning that
speaking out could derail her chances to remain on the court in the future. In
a profile published by Fusion, Alcala said it was "unlikely" that she'd run
again, but also acknowledged that she has not made any definitive decision.
Attorneys with considerable experience litigating capital cases before the
Texas court say that they are encouraged by Alcala's opinions, but are
nonetheless skeptical that her more moderate and thoughtful approach to
considering death penalty cases would necessarily have any outwardly obvious
effect on her colleagues. "I've been waiting and I haven't seen it. I just
haven't seen it," said Keith Hampton, a veteran defense attorney who was behind
the only successful bid to have a death sentence commuted by Perry during his
3-term tenure as the state's governor, during which time he presided over more
executions than any other modern governor. Hampton said he could see Alcala's
approach evolving in recent years, and believes now that she's "genuinely
dedicated" to reform. "Clearly she's not playing to the crowd - because we're
in Texas and there is no crowd for this here." In fact, Hampton worries that
Alcala's writings and public posture may have given ammunition to any number of
aggressive prosecutors who could try to force her recusal from considering
appeals of their death cases.
Bryce Benjet, a former lawyer with the nonprofit Texas Defender Service who now
works for the Innocence Project, said it might be more significant that the
concerns Alcala has expressed haven't "happened with more frequency" on the
court. But what is especially noteworthy, he said, is that these concerns are
coming from a former prosecutor for Harris County (which includes the city of
Houston), a jurisdiction responsible for sending hundreds of defendants to
death row, and the U.S. county responsible for the most executions since 1976.
To Tyler, Wood's attorney, Alcala's views are more in line with those of the
U.S. Supreme Court than with her colleagues. He notes that the Supreme Court
has accepted for review 2 recent cases where she authored stern dissents - in
the Buck case and in the case challenging the state's process for determining
cognitive disabilities. And he said he believes the Supreme Court should take
up Wood's case as well, to finally decide whether Wood's sentence is
proportionate to his crime.
In the meantime, Wood's family and supporters have attracted another contingent
of unlikely supporters in the form of conservative state House members who have
been airing their own concerns about whether Wood's sentence is proper.
Ultra-conservative members have each spoken out about their concerns and have
been trying to persuade the Board of Pardons and Paroles and Gov. Greg Abbot to
consider commuting Wood's sentence. "I believe the death penalty, and in some
cases the law of parties, has a place. Human life, being made in the image of
God, is very precious," East Texas state Representative David Simpson, wrote in
a column published in the Dallas Morning News. "In the case of Wood, I have
seen enough questions to warrant advocating that his life be spared.
Ultimately, God will judge our actions, and as humans we make mistakes and our
justice system is not perfect."
(source: theintercept.com)
MISSISSIPPI:
Mississippi Attorney General Jim Hood defends discredited forensic experts,
harasses defense attorneys instead
Yesterday, I posted about a crazy deposition from last April in which longtime
Mississippi forensic expert Michael West went wildly off the rails. West was
profane, belligerent, and openly contemptuous of the fact that anyone would
dare question his expertise. The remarkable thing is that this was a deposition
for a post-conviction hearing in a death penalty case. And in that case, West
is the star witness. His testimony was the only physical evidence putting
defendant Eddie Lee Howard at the crime scene.
Once in post-conviction, these cases are handled by the Mississippi Attorney
General's Office. You might think that the Mississippi Attorney General Jim
Hood would be embarrassed by West's antics. The actions from his office after
the deposition indicate that that you???d be wrong.
The deposition occurred on April 16. On April 25th, in anticipation of the
evidentiary hearing that followed in May (that hearing went down about the same
way as the deposition - the judge has yet to rule on the matter), Tucker
Carrington of the Mississippi Innocence Project sent a letter to assistant
attorney general Jason Davis. In it, Carrington again pointed out that since
Howard's trials West has been widely discredited. He pointed out that in the
deposition itself, West contradicted his testimony at trial. And he pointed out
West's wholesale failure to take any of this seriously - he failed to prepare
for the deposition, his failed to produce the appropriate documents and
records, and he of course showed an appalling lack of professionalism and
reverence, particularly given that a man's life is at stake. Carrington again
requested that the AG's office drop the charges.
The next day, Davis and Hood filed a motion requesting a hearing to assess the
competency of Howard's legal team. It's an astonishingly brazen reaction. Faced
with an embarrassing performance in which the state's already-discredited
primary witness in a death penalty case came completely unhinged, Hood chose
instead to attack the credibility of Eddie Lee Howard's lawyers.
My sources in Mississippi tell me that Hood's office has using this tactic for
a while now. The motion was based on Rule 22 of the Mississippi;s Rules of
Appellate Procedure. The intent behind that rule is sound: It gives the state's
courts a mechanism to ensure that defendants in capital cases are getting
adequate legal representation in their appeals. These are complicated and
consequential cases. You don;t want death penalty appeals and post-conviction
petitions handled by fresh law school grads or washed up schlubs.
The problem is that the rule as originally written was vague and sloppily
drafted. For example, it required anyone handling a death penalty appeal to
have taken a new felony case within the last 3 years. That may sound
reasonable, but many attorneys work solely on post-conviction cases, which can
draw on for years. They can handle multiple cases for years on end without ever
taking on a new client. These of course are some of the most qualified
attorneys to handle capital cases. Yet under the rule, they could potentially
be disqualified.
Sources in Mississippi say that Hood's office has been using the rule as a
weapon. While Hood and his subordinates will claim in briefs that they're
merely fulfilling their obligation to protect the rights of criminal
defendants, they aren't filing these motions as a matter of course in every
capital case. The sense in Mississippi is that they haven't been using the rule
to hassle out-of-state law firms and nonprofit legal aid groups taking
Mississippi capital cases on a pro-bono basis. The attorneys at these firms and
aid groups have extensive experience in capital cases. In other words, Hood's
office has been using the rule to attack the most qualified capital defense
attorneys, not the least. In 1 recent example, Hood's office tried to
disqualify a well-respected Virginia attorney with significant death penalty
experience because he hadn't paid the $350 fee necessary to be barred by the
U.S. Court of Appeals for the Fifth Circuit - 1 of the requirements under the
rule as it was previously written.
In an affidavit filed last November, Emily Olsen-Gault, the director and chief
counsel for the American Bar Association's Death Penalty Representation
Project, voiced the ABA's concerns about what Hood was doing:
"The interpretation of Rule 22 that the Attorney General's Office has advanced
would irreversibly chill the recruitment and participation of pro bona counsel
in post-conviction proceedings in Mississippi. This would not only harm
indigent death-sentenced prisoners in Mississippi, but would also impose
substantial burdens on Mississippi taxpayers."
In Eddie Lee Howard's case, Hood's decision to invoke the rule when he did was
basically the legal equivalent of trolling. Tucker Carrington has been the
director of the Mississippi Innocence Project for a decade. He has represented
Mississippi clients in courts all over the state, as well as in federal court.
He has been Howard's attorney since 2008. Prior to that he was a criminal
defense attorney in Washington, D.C. Chris Fabricant is director of strategic
litigation for the Innocence Project of New York. He has been a criminal
defense attorney for over a decade. Dana Delger is a staff attorney at the
Innocence Project who clerked for a federal appeals court judge and worked as a
public defender in Harlem. Vanessa Potkin is a senior staff attorney with the
Innocence Project. Peter Neufeld is a co-founder and co-director of the
Innocence Project who has been practicing criminal defense law for decades.
Plotkin and Neufeld in fact had represented Levon Brooks and Kennedy Brewer,
the 2 men previously convicted by West's bite mark testimony who served nearly
30 combined years in prison before they were exonerated in 2007.
These are the attorneys named in Hood's motion. The Innocence Project can at
times be controversial. Prosecutors and law-and-order types have often
disagreed with the organization's methods, tactics, or policy recommendations.
But to argue that its attorneys aren't qualified to represent defendants in
post conviction proceedings is laughable. That's what they do. They've also
been representing Howard for nearly a decade. That Hood's office would suddenly
invoke the rule less than 2 weeks after the April hearing, and just a day after
Carrington's letter, makes it pretty clear that this was just petty harassment.
Moreover, as Carrington pointed out in his response, Hood's motion is
particularly absurd given that Hood's office has already vouched for the
credibility of Howard's legal team in a different context. That was less than a
year ago.
The irony here is that while Hood claims to be so concerned about the
qualifications of capital defense attorneys, he has shown zero interest in
ensuring that expert witness who testify for the state in Mississippi's courts
are credible and qualified. That's what that deposition last April was all
about.
For his entire tenure as attorney general, Hood has steadfastly defended Steven
Hayne, the controversial medical examiner who did 80-90 % of the state's
autopsies for nearly 20 years. (Hayne and West were collaborators. Hayne often
referred cases to West, while West often assisted Hayne with his autopsies.)
That's probably at least in part because Hood frequently used Hayne back when
he worked in a DA's office. When Mississippi's public safety commissioner
effectively fired Hayne several years ago, Hood led an effort to resurrect an
antiquated law to bring Hayne back.
As for Michael West, Hood did finally admit in 2011 that West had credibility
problems. He even told a local TV station that he was conducting an
investigation. A few months later, the assistant attorney general Hood
allegedly assigned to head up that investigation was asked what he had found.
He replied that to that point, he had done a Westlaw search on West's name -
the legal equivalent of typing West's name into Google. 5 years later, we've
heard nothing from Hood or his office about what that investigation has turned
up. And this is an attorney general who is anything but publicity-shy.
Instead, Hood's office is still aggressively fighting to preserve convictions
won with West's testimony. In most cases, Hood's office now argues that
defendants are procedurally barred from raising questions about West's
expertise. In these cases, Hood and his subordinates don't even try to argue
that West is credible. They don't dispute that West's testimony was fraudulent.
Instead, they that the defendant has already attempted to challenge West's
credibility either at trial, during an appeal, or in post-conviction - and
lost. By publicly acknowledging that West is not a credible witness, Hood has
admitted that the Mississippi's courts were wrong to allow and uphold West's
testimony. But he's willing to keep people in prison based on the fact that
years ago, he and his predecessors persuaded Mississippi's courts to approve
that testimony - to issue those wrong decisions - and the law now prevents
those same defendants from raising that issue again. Hood is essentially
arguing that Mississippi keep people in prison - or in Howard's case, that
Mississippi execute someone - on a technicality.
Whether Hood is right on the law on this particular point is beside the point.
As attorney general, he isn't required to fight to preserve these convictions.
He could drop the charges in the interest of justice. Or he could agree to a
new trial without the tainted testimony. He just won't do it.
The Lowndes County Circuit Court didn't directly address Hood's motion because
days after Hood filed it, the Mississippi Supreme Court revised Rule 22 to fix
the vague language and sloppy drafting. Under the revised rule, Howard's legal
team is more than qualified, so there's no room for Hood's motion. It isn't
clear if the state supreme court revised the rule in response to Hood's motion,
but the timing is certainly suggestive.
Hood is widely expected to run for governor next year. As one of the only
Democrats holding statewide office in the deep south (and a fairly popular one
at that), he's expected to get a lot of support from the national party once he
announces. So far in his political career, Hood has found success in the south
by countering his close (and at time scandalous) relationship with the
plaintiff's bar and high-profile fights with prominent businesses with an
unapologetic embrace of law-and-order policies, including a particular
enthusiasm for the death penalty. It will be interesting to see if he continues
to pull it off. The landscape on criminal justice is shifting. Hood's efforts
to undermine the rights of criminal defendants and his utter disinterest in the
forensics crisis unfolding right under his nose may came back to haunt him.
(source: Radley Balko, Washington Post)
CALIFORNIA:
Missing the other side of capital punishment: innocent people wrongly convicted
I realize that when writing a piece about California's death row it's much more
interesting to focus on an inmate whose crimes are the stuff of horror movies.
But it seems that in a story written by a columnist who describes himself as
"ambivalent" about capital punishment, it would be edifying to also look at
those on death row whose guilt is questionable, or whose crimes were not
horrendous but occurred in the wrong county, or whose conviction was the result
of a woefully inadequate defense attorney. ("A macabre and failed system of
justice"; Forum, Aug. 21)
Dan Morain writes that, "No doubt, many death row inmates received less than
perfect trials. But they are on death row for good reason." The facts show
otherwise. Since 1973, 156 innocent people have been exonerated and freed from
death rows around the country. And, as U.S. 9th Circuit Court of Appeals Judge
Alex Kozinski once said, "For every exonerated convict, there may be dozens who
are innocent but cannot prove it."
Morain focused on Lawrence Bittaker in his column, a poster boy for supporters
of the death penalty. He could just as easily have focused on Kevin Cooper, a
death row inmate whose conviction was so controversial his supporters include a
former FBI investigator of violent crimes, the American Bar Association, some
of the jurors who convicted him, and a Louisiana prosecutor who wrongly
convicted a man in a similar case years ago.
Finally, Morain has been a reporter in California for a long time. Doesn't he
find it strange that California Department of Corrections and Rehabilitation is
now giving reporters regular tours of death row? When I was a reporter in the
'90s, I visited San Quentin 3 times, but death row was always completely off
limits. I was at San Quentin when Mother Teresa visited, and we weren't allowed
to accompany her to death row because "it was too dangerous."
It strikes me as more than coincidence that with Proposition 62 on the November
ballot, San Quentin's death row is now open to the media. What better way to
make an argument for the need for the death penalty than to introduce the press
to the men whose crimes give people nightmares? And who better to have as your
messenger than the "objective" media? Wasn't there at least part of him that
suspected he was being used?
(source: Opinion; Mary C. DeLucco of Petaluma is a former television reporter,
writer and producer in the Bay Area. She now works as a freelance writer and
producer in San Francisco----Sacramento Bee)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/deathpenalty
