Texas Inmate Faces Execution After Appeals Lawyers Abandon His Case

Raphael Holiday (pictured) is scheduled to be executed in Texas on November 18 after appeals lawyers who were appointed to his case unilaterally decided not to seek clemency or pursue additional appeals and then opposed Holiday's efforts to replace them with lawyers who would. James "Wes" Volberding and Seth Kretzer say that they were unable to find new evidence on which to base any appeal and that seeking clemency from Texas Gov. Greg Abbott would give Holiday "false hope" and is pointless. When another attorney, Gretchen Sween, stepped in to help Holiday find new counsel, his current attorneys opposed her efforts to replace them. They then filed a clemency petition prepared so hastily that it twice gives the wrong execution date. The lawyers say they were exercising professional discretion in abandoning efforts to spare Holiday's life, but death penalty experts assert that counsel are required to pursue all available avenues to stop a client's execution. Stephen Bright, a Yale law professor and president of the Southern Center for Human Rights, said that in decades of practice in capital cases he has never seen appointed lawyers fight so vigorously to prevent their client from retaining new counsel. "This seems unconscionable," he said. "Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can." Jim Marcus, a University of Texas law professor and veteran death penalty lawyer, agreed that Holiday's attorneys are legally required to continue pursuing appeals: "There’s a difference between saying that’s not a viable strategy or viable claim and abandoning an entire proceeding altogether. The latter is not really permissible ...."

U.S. on Track for Fewest Executions, New Death Sentences in a Generation

Both executions and new death sentences in the United States are on pace for significant declines to their lowest levels in a generation, Reuters reports. With 25 executions conducted so far this year, and only two more scheduled, the United States could have its lowest number of executions since 1991, significantly below the peak of 98 executions in 1999. Only 8 states have carried out executions in the last two years, down from a high of 20, also in 1999. New death sentences, which peaked at 315 in 1996, declined to 73 last year, and that number is expected to drop even further this year. The slowdowns in executions and new death sentences are just two of several indicators that the U.S. is moving away from capital punishment. Reuters reports that these changes come from a combination of factors, including the high cost of death penalty cases, the recent problems surrounding lethal injection, and improved capital representation in high-use states. Texas and Virginia, two of the death penalty states that historically have been the most aggressive in carrying out executions, stand out as examples of the punishment's declining use. Both states have implemented major reforms in indigent defense in recent years, producing dramatic changes in the death penalty landscape. In Texas, which had 48 death sentences in 1999, juries have handed down only three death sentences so far this year. Virginia, which has executed the highest percentage of death row inmates of any state, is on track to have no death sentences for the fourth consecutive year.

Amid Unavailability of Lethal Injection Drugs, States Push Legal Limits to Carry Out Executions

"Over time lethal injection has become only more problematic and chaotic,” Deborah W. Denno, a professor at Fordham Law School, told the New York Times, summarizing the ongoing battles that have led states to adopt new drug sources or alternative methods of execution. Several states have obtained or sought drugs using sources that may violate pharmaceutical regulations. For the execution of Alfredo Prieto, Virginia obtained pentobarbital from the Texas Department of Criminal Justice, which purchased it from a compounding pharmacy whose identity is shielded by the state's secrecy law. "Even if the transactions between states do not comply with law, there is no recourse for death-sentenced prisoners," said Megan McCracken, an expert in lethal injection at the Death Penalty Clinic at the University of California, Berkeley, School of Law. Both Nebraska and Ohio received warnings from the Food and Drug Administration that their attempts to purchase sodium thiopental from overseas suppliers violated federal law regarding the importation of drugs. Oklahoma executed Charles Warner in violation of its own execution protocol, substituting an unauthorized chemical, potassium acetate, for the potassium chloride its regulations require. Other states have turned to alternative execution methods: Tennessee reauthorized use of the electric chair, while Oklahoma passed a bill to make nitrogen gas asphyxiation its backup method. Louisiana prison officials also recommended using nitrogen gas, but the state has not taken action on that recommendation. The scramble for lethal injection drugs has delayed executions across the country. A challenge to Mississippi's protocol has halted executions until at least next year. A Montana judge put executions on hold because the state's proposed drug cocktail violated state law, and either the drugs that comply with state law are not produced in the U.S. and may not be imported or the manufacturer refuses to sell the drug for executions. In Oklahoma, the Attorney General requested an indefinite hold in order to review lethal injection procedures after the state obtained the wrong drug for the execution of Richard Glossip.

Spate of Scheduled Executions Highlight Broad Issues in Capital Punishment

An unusually high number of executions are scheduled for late September and early October - five states intend to carry out six executions in nine days. Pieces in the Los Angeles Times and the Washington Post describe the larger issues raised by the cases in this "burst of lethal activity." In the Los Angeles Times, Scott Martelle examined the three executions scheduled for consecutive days in Georgia, Oklahoma, and Virginia, concluding, "So here we have three pending executions: One of a woman who received a harsher penalty than the co-conspirator who committed the murder; one of a man who very possibly is innocent; and one of a man whose intellectual disability should make him ineligible for the death penalty." Mark Berman, of the Washington Post, noted the overall rarity of executions and the small number of states that carry them out. He says "most states have ... not been active participants in the country's capital punishment system" and "executions remain clustered in a small number of states, a dwindling number of locations accounting for an overwhelming majority of lethal injections." Berman notes that the number of executions, the states executing inmates and the number of death sentences have all fallen significantly since the 1990s and the upcoming executions share one common characteristic: "The states planning the executions this week and next — Georgia, Oklahoma, Virginia, Texas and Missouri — are among the country’s most active death-penalty states since the death penalty was reinstated by the U.S. Supreme Court in 1976." 

Conservative Commentator, Texas Editorial Urge End to Death Penalty for Mentally Ill

The U.S. Court of Appeals for the Fifth Circuit will hear arguments on September 23 regarding Scott Panetti's competency to be executed. Panetti is a severely mentally ill man who represented himself at his trial wearing a cowboy costume, and attempted to subpoena the Pope, John F. Kennedy, and Jesus Christ. As the court prepares to hear Panetti's case, opinion pieces in two Texas newspapers used it to illustrate larger problems with the death penalty and mental illness. In an op-ed in The Dallas Morning News, conservative commentator Richard Viguerie said Panetti's execution would not be "a proportionate response to murder," but "would only undermine the public’s faith in a fair and moral justice system." He wrote that people with severe mental illness, like juveniles and people with intellectual disabilities, should not be executed because they have diminished capacities to understand the consequences of their actions. "The rationales for the death penalty — retribution and deterrence — simply do not apply to a severely mentally ill individual like Panetti, who believes that a listening device has been implanted in one of his teeth." Executing Panetti, Viguerie said, would be "a moral failure for conservatives." A Houston Chronicle editorial discussed Panetti's case and the case of another mentally ill capital defendant, James Calvert. A Texas court terminated Calvert's self-representation after, in the words of the editorial, Calvert "took to defending himself with a farcical style that likely did more to hurt than help his case." Just before the court terminated Calvert's self-representation, a court deputy administered an electric shock to Calvert, causing him to scream for several seconds. The editorial said that "[t]he ultimate punishment - death - merits our highest standards of care" and that "judges must carefully balance the Sixth Amendment's right to represent oneself with the guarantee of competent representation." Calling for the end of the death penalty, the editorial board wrote, "Cases like Calvert and Panetti's show how something as serious as life and death can easily be turned into a farce." 

Looking Back at the Peak of Texas's Death Sentencing

So far in 2015, no one has been sentenced to death in Texas. The death row population has dropped to 257, down from 460 at its peak in 1999. In that year, Texas sentenced 48 people to death, the most in any year since the death penalty was reinstated. Among the reasons for the decline in death sentences has been the adoption of the alternative sentence of life without parole (adopted in 2005), and a change in the political climate that had led politicians to compete in trying to appear "tough on crime." The Austin American-Statesman recently examined the cases of the 48 defendants sentenced to death in 1999. Harris County (Houston) handed down more of the sentences (11) than any other county, even though the number of murders there had been declining. Of those sentenced to death in 1999, half have been executed. One, Michael Toney, was exonerated in 2009. Two died of natural causes. Six had their sentences reduced when the Supreme Court banned the execution of juveniles in 2005 - all six were 17 at the time of their crimes. The rest remain on death row.

Federal Court Rejects Duane Buck Racial Bias Appeal

The U.S. Court of Appeals for the Fifth Circuit rejected an appeal in the case of Texas death row inmate Duane Buck, who argued that his trial was tainted by ineffective representation and racial bias when Buck’s own mental health expert testified that he could be a future danger to society because he is black. Dr. Walter Quijano, a clinical psychologist, testified in the sentencing phase of Buck's case on the issue of future dangerousness. The prosecutor asked Quijano, "You have determined that the sex factor, that a male is more violent than a female because that's just the way it is, and the race factor, black, increases the future dangerousness for various complicated reasons, is that correct?" Quijano answered, "Yes." Buck, who is black, was sentenced to death. Buck's case was one of six capital cases identified in 2000 as tainted by Quijano's testimony. The other five have had new sentencing hearings, but Buck has not. Buck presented 11 arguments in his appeal, but the court said, "Jurists of reason would not debate that Buck has failed to show extraordinary circumstances justifying relief." Attorneys for Buck said, "This decision can only deepen the growing skepticism of the fairness of the criminal justice system. No competent capital defense attorney would invite the sentencing jury to make a life-or-death decision based on racial fears and stereotypes and no court should enforce a judgment in which race was explicitly proffered as the basis for a death sentence."

Human Rights Commission Calls for Stay of Execution for Nicaraguan Man on Texas Death Row

(UPDATE: The Texas Court of Criminal Appeals has granted Bernard Tercero a stay of execution to permit him to litigate evidence that a lead prosecution witness testified falsely against him.) The Inter-American Commission on Human Rights (IACHR), a unit of the Organization of American States, has called on Texas officials to stay the execution of Nicaraguan citizen Bernardo Tercero (pictured), who is scheduled to be executed in Texas on August 26. Under international treaties on consular relations, foreign citizens (including Americans abroad) must be afforded access to their government's consulate at the time of their arrest. The IACHR has ruled that Texas' failure to respect these treaty obligations denied Tercero "his right to consular notification and assistance [and] deprived him of a criminal process that satisfied the minimum standards of due process and a fair trial" required under Inter-American human rights treaties. The IACHR also concluded that Tercero's court-appointed counsel "committed serious mistakes that affected his right to defense" and that procedural rulings by the courts in his case denied Tercero the "possibility to have his sentence effectively reviewed." The Organization of American States issued a statement saying that, "Should the state of Texas carry out this execution, it would be committing a serious and irreparable violation of the basic right to life" guaranteed in American human rights instruments. As of June 9, 2015, 139 foreign nationals were on death rows across America, with 61 in California and 22 in Texas.