Texas

Texas

Supreme Court Asked to Review Texas' Use of Factors Based on a Fictional Character to Reject Death Row Prisoner's Intellectual Disability Claim

Bobby James Moore (pictured) faces execution in Texas after the state's Court of Criminal Appeals rejected his claim of intellectual disability in September 2015, saying he failed to meet Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test which a judge based on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." In doing so, the appeals court reversed a lower court's ruling that tracked the scientific diagnostic criteria set forth by medical professionals, which found that Moore had intellectual disability. On April 22, the U.S. Supreme Court will conference to decide whether to hear Moore's case. Moore's lawyers argue, supported by briefing from national and international mental health advocates, that he has intellectual disability and that the non-scientific standard employed by Texas in denying his intellectual disability claim violated the Court's 2014 ruling in Hall v. Florida. In 2002, the Supreme Court ruled in Atkins v. Virginia that the 8th Amendment prohibits the use of the death penalty against persons with mental retardation, now known as intellectual disability. But Atkins left it to the states to adopt procedures for determining whether defendants were intellectually disabled. Hall struck down Florida's strict IQ cutoff for determining intellectual disability because it "disregards established medical practice." Texas is the only state that uses the Briseño factors, which include whether the crime required forethought or planning, whether the person is capable of lying effectively, and whether the defendant is more of a leader or a follower. The state court disregarded Moore's clear history of intellectual disability, documented since childhood, and IQ scores ranging from the low 50s to the low 70s, in favor of Texas' idiosyncratic method.

Supreme Court to Consider Hearing Texas Capital Case Where Expert Said Defendant Posed Greater Danger Because He Was Black

UPDATE: The Supreme Court docket indicates that its conferencing of Mr. Buck's case, originally set for April 22, has been rescheduled. The Court is now scheduled to considering the case on April 29. PREVIOUSLY: On April 22, the U.S. Supreme Court is scheduled to confer on whether to review the case of Duane Buck (pictured), who was sentenced to death in Harris County, Texas after a psychologist testified that he posed an increased risk of future dangerousness because he is black. In the case, the defense presented psychologist, Walter Quijano, as its own witness, even though he had previously testified in other cases to a supposed link between race and future dangerousness. During cross-examination, the prosecution asked Quijano - without objection by the defense - whether "the race factor, black, increases the future dangerousness for various complicated reasons." Quijano replied, "yes." The prosecution then returned to this race-based testimony during its closing argument in calling for the jury to sentence Buck to death. Buck is one of six defendants who a Texas Attorney General's report identified as having unfair capital-sentencing hearings that were tainted by Quijano's race-based testimony, and the only one to be denied a new sentencing hearing. Courts initially rejected Buck's claim of prosecutorial misconduct for presenting race-based evidence and argument on the grounds that Buck's own lawyer had presented the witness. However, the lower courts then denied relief when he subsequently presented the argument that his lawyer had provided ineffective representation on this issue. The case has attracted widespread attention, and several stakeholders in Buck's case, including the second-chair prosecutor from Buck's trial, former Texas Governor Mark White, and a surviving victim have urged that Buck be granted a new sentencing hearing. Linda Geffin, the second-chair prosecutor, said "The state of Texas can't put Mr. Buck to the ultimate punishment without having a fair, just, color-blind sentencing hearing." A bipartisan group of amici have urged the Supreme Court to grant review of what they called the "noxious and deeply prejudicial use of race" in this case. American Bar Association President Paulette Brown recently wrote in the Houston Chronicle, "Obviously, an odious race-based argument is never acceptable, let alone in a criminal case where the defendant's life is at stake. And a defendant whose lawyer invites such racist testimony not only has a strong chance of being sentenced to death but a strong claim of ineffective counsel." 

Texas Court Finds Marcus Druery Mentally Incompetent, Spares Him From Execution

A Texas court has found that a severely mentally ill death-row inmate, Marcus Druery (pictured), is incompetent to be executed. Druery's attorneys presented more than 150 pages of reports from mental health professionals arguing that, as a result of major mental illness, Druery does not understand why he is being punished, making it unconstitutional to execute him. His "paranoid and grandiose delusions...deprive him of a rational understanding of the connection between his crime and punishment," one expert wrote. On April 4, the court agreed. Prosecutors did not contest Druery's claims of incompetency, but retain the right to petition for reconsideration in the future if Druery's mental state changes. Kate Black, one of Druery's attorneys, said, "The state has the duty to make certain it does not violate the Constitution by executing an individual, like Mr. Druery, who suffers from a psychotic disorder that renders him incompetent for execution. We are pleased that they have taken that duty seriously." Druery has long suffered from delusions and a psychotic disorder that doctors have consistently characterized as a form of schizophrenia. In 2009, his mental illness became so severe that he was transferred to a prison psychiatric unit. State doctors who have examined him since have consistently diagnosed him as delusional. An execution date was set for Druery in 2012, but he was granted a stay and, later, a competency hearing, which led to Monday's decision.

Texas Scheduled to Execute Severely Mentally Ill Death-Row Prisoner

The U.S. Court of Appeals for the 5th Circuit says that “Adam Kelly Ward (pictured) has been afflicted with mental illness his entire life.” Yet Texas will execute him on March 22 unless the U.S. Supreme Court grants him a stay to review his case. Ward's lawyers argue that the execution of a person who is severely mentally ill constitutes cruel and unusual punishment and that, for that reason, Ward should not be executed. The Texas Court of Criminal Appeals denied review of that issue on March 14, saying that Ward should have raised it in previous state-court appeals. The Texas federal courts rejected a similar argument in 2015. While the U.S. Supreme Court has barred the execution of inmates who are so mentally incompetent that that they do not rationally comprehend that they are going to be executed or why, it has never ruled that executing inmates with severe mental illness is unconstitutional. Ward has consistently exhibited signs of severe mental illness since infancy, and was twice hospitalized for multi-week periods because of his illness. He suffered from uncontrollable rage episodes and two of his elementary schools built special padded isolation rooms in which he would be placed when he was out of control. The federal district court described him as delusional and having "difficulty with impulse control, bad judgment, poor insight, trouble sleeping and eating, mood swings, and bizarre behaviors." At trial, a psychiatrist testified that Ward's psychotic disorder caused him to "suffer paranoid delusions such that he believes there might be a conspiracy against him and that people might be after him or trying to harm him" and the federal district court agreed that as a result of his mental illness, Ward "interpreted neutral things as a threat or personal attack." In her statement concurring with the state court's denial of a stay of execution, Judge Elsa Alcala noted that no Supreme Court decision banned the execution of people with mental illness and that the power to do so rests with legislatures: "As is the case with intellectual disability, the preferred course would be for legislatures rather than courts to set standards defining the level at which a mental illness is so severe that it should result in a defendant being categorically exempt from the death penalty." 

Texas About to Execute Inmate Despite Evidence of Intellectual Disability

UPDATE: Wesbrook was executed on Mar. 9. EARLIER: Coy Wesbrook is scheduled to be executed in Texas on March 9. If the execution proceeds, it will be the eighth in the U.S. this year, half of which have been in Texas. Wesbrook killed five people after a confrontation with his ex-wife. The U.S. Supreme Court has held that defendants with intellectual disability (formerly referred to as "mental retardation") are exempt from the death penalty. Wesbrook was tested for intellectual disability at the request of the prosecution, following a challenge by Wesbrook's attorneys that he should be spared. Psychologist George Denkowski examined Wesbrook and initially submitted a report finding he had an IQ of 66, placing him below the standard level for intellectual disabilty. Several months later, he filed a new report based on "non-intellectual factors" that said Wesbrook's "actual adult general intelligence functioning is estimated to be of about 84 quality." Ohio State University professor Marc Tasse, an expert on developmental disabilities, said Denkowski's methods had "absolutely no scientific basis." Because of his unscientific procedures in Wesbrook's and 15 other cases, Denkowski was fined by the Texas State Board of Examiners of Psychologists and agreed never to testify in another criminal case. Nevertheless, the execution has been allowed to proceed.

Texas Prisoner Seeks Supreme Court Review of Death Sentence Tainted By Racial Bias

Duane Buck, who was sentenced to death after a defense expert witness testified that Buck could pose a future danger to society because he is black, has asked the U.S. Supreme Court to grant him a new sentencing hearing because of his lawyer's ineffectiveness. Buck is one of six defendants whose Texas capital trials were identified by a Texas Attorney General's report as having been tainted by race-based testimony by psychologist, Dr. Walter Quijano. The other five were granted new sentencing hearings after the Texas Attorney General agreed that the “infusion of race as a factor for the jury to weigh in making its determination violated [the defendant's] constitutional right to be sentenced without regard to the color of his skin.” However, after a change in the elected Attorney General, Texas opposed a new sentencing for Mr. Buck. During Buck's sentencing trial, the prosecution asked Quijano - whom it had used as a witness in other cases - if, "the race factor, black, increases the future dangerousness for various complicated reasons." Buck's lawyer did not object, and Quijano replied, "yes." As Buck stated in a documentary about his case, "He was basically saying because you’re black, you need to die. My lawyer didn’t say anything and nobody else, you know, the prosecutor or the judge, nobody did. It was like an everyday thing in the courts." The state and federal courts rejected Buck's prior challenge based on the prosecutor's conduct, suggesting the fault lay with the defense. Buck's attorneys now argue that his trial lawyer's failure to object to Quijano's testimony constituted ineffective assistance of counsel, in violation of his Sixth Amendment rights. The lower courts turned down that appeal as well, and Buck filed this petition for writ of certiorari asking the U.S. Supreme Court to review his case.

Texas Board Confirms Disbarment of Prosecutor for Misconduct in Anthony Graves Case

The disciplinary board of the Texas State Bar rejected an appeal on February 9 from Charles Sebesta, the prosecutor whose misconduct led to the wrongful conviction of Anthony Graves (pictured, r.). The board's decision disbarring Sebesta for what it called "egregious" misconduct is now final. Anthony Graves was convicted in 1994 on the false testimony of Robert Carter, who claimed Graves was his accomplice. Graves was exonerated in 2010 and filed a complaint against Sebesta in 2014. Sebesta was disbarred for eliciting Carter's false statements and withholding exculpatory evidence from Graves' defense. The disciplinary board made an initial ruling to revoke Sebesta's law license in 2015, but he appealed the ruling on technical grounds. Graves lauded the board's decision, saying, “The bar stepped in to say that’s not the way our criminal justice system should work. This is a good day for justice.”

EDITORIALS: Newspapers Stress Findings from DPIC's 2015 Year End Report

Several newspapers across the country featured themes from DPIC's 2015 Year End Report in editorials and opinion pieces at the end of December:

"Once broadly accepted, capital punishment is increasingly a fringe practice. A handful of states conduct nearly all executions. Four — Texas, Missouri, Georgia and Florida — carried out 93 percent of them in 2015. Sixty-three percent of new death sentences came from a mere 2 percent of U.S. counties, a group with a history of disproportionately using the death penalty.Bad policy encourages this sort of excess: Three states — Alabama, Delaware and Florida — do not require juries to be unanimous when recommending a death sentence. A quarter of new sentences came from split juries in these states."

"Not only did executions drop in 2015, but the number of people sentenced to death also hit an historic low, the center said. That could be due to a growing skepticism by jurors of a system susceptible to manipulation through coerced testimony or other misconduct...— or there could be some other reason for a decline in convictions on capital punishment charges...What is clear is that there's no correcting an execution if later evidence shows the prosecution was wrong...Abolition is the direction of the future, and the U.S. should join."

"[T]he fact that new death sentences were at an all-time low in Texas this year is reason to applaud...Texas’ declines mirror numbers across the nation. According to the Death Penalty Information Center’s year-end report, death sentences dropped 33 percent from 2014, with 49 people being sentenced to death this year. Just six states carried out executions, the fewest since 1998...Confidence in the system’s integrity is waning. It should only follow that support for the death penalty follows suit."
 
 
"In 2015, in fact, otherwise proudly liberal California led the nation in death sentences with 14, even as the national number dropped to 49, the fewest since capital punishment was reinstated in 1976, according to the Death Penalty Information Center. Of California’s death sentences, eight were in Riverside County (including five of the eight Latinos sentenced to death nationwide), plus three in Los Angeles and one in Orange...If we’re going to have the death penalty, shouldn’t it be at least somewhat consistent across the state?"

"As Florida becomes more isolated in its administration of the death penalty, the state is getting deserved scrutiny for problems with the practice. A year-end report from the Washington, D.C.-based Death Penalty Information Center found just three states — Alabama, California and Florida — accounted for more than half of the nation’s new death sentences in 2015. More than a quarter of this year’s death sentences were imposed by Florida and Alabama after non-unanimous jury recommendations of death — a practice allowed in just those two states and Delaware. ...As Florida officials have pushed to speed up the pace of executions, the Death Penalty Information Center found the rest of the country is heading in the opposite direction. A dozen states haven’t executed anyone in at least nine years, while 18 states and the District of Columbia have outlawed the death penalty altogether. ... As most other states move away from the death penalty, it is long past time for Florida to follow their lead."

"A Reading Eagle investigation in October found nearly one in five Pennsylvania inmates sentenced to death the past decade were represented by attorneys disciplined for professional misconduct at some point in their careers. And the majority of these disciplined attorneys had been found by Pennsylvania courts to be ineffective in at least one capital case. More than 150 inmates sentenced to death in the U.S. have been exonerated since 1973, according to data compiled by the Death Penalty Information Center in Washington. Sooner or later an innocent person will be executed, if it hasn't happened already...It is time to end the death penalty in Pennsylvania." (This editorial announced the end of the Eagle's prior position supporting the death penalty under limited circumstances.)

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