Texas

Texas

Federal Court to Review Florida's Unique Execution Procedure

A federal court in Florida will review challenges to the state's new lethal injection procedure, which the state plans to use in an upcoming execution on November 12. Florida is the only state in the country to use this new protocol, which begins with the sedative midazolam, followed by a paralytic drug and potassium chloride. Attorneys for Florida death row inmates allege the process could result in severe pain in violation of the 8th Amendment. Megan McCracken, an attorney at the death penalty clinic at the University of California Berkeley School of Law, said, “If [potassium chloride is] given to a conscious person who has been inadequately anesthetized, it causes incredible pain because it activates nerve endings. It will feel like burning through the circulatory system until it reaches the heart, which it stops.” Florida switched to midazolam due to a shortage of pentobarbital, an anesthetic used in almost all executions over the past 2 years. Texas, which also has an execution scheduled for November 12, has obtained pentobarbital from a compounding pharmacy. It employs only 1 drug in its executions. Ohio recently announced it will use a new protocol involving midazolam and hydromorphone in its execution scheduled for November 14. That procedure is also under review in federal court.

OP-ED: "Changes are long overdue for Texas' clemency process"

Michael Morton (pictured), who was released after 25 years in prison for a crime he did not commit, and Barry Scheck, co-director of the Innocence Project, called for reforms in Texas's clemency process. In a recent op-ed in the Houston Chronicle, Morton and Scheck highlighted the case of Cameron Willingham, who was executed in 2004 despite serious doubts about his guilt.  According to the authors, it is now understood that investigators who believed that Willingham committed arson were mistaken.  They also noted that a recent investigation uncovered that a recantation made by a witness who initially claimed that Willingham confessed to the crime was never made available to Willingham's lawyers or placed in the court file. Morton and Scheck wrote, "The clemency process that failed to discover Willingham's innocence in 2004 remains essentially unchanged. A recent study by a committee of the American Bar Association found that the Board of Pardons and Paroles' consideration of capital cases is woefully inadequate - Texas does not meet any of the eleven minimum guidelines for an adequate process." They concluded, "No one can endorse a system that allows the execution of an innocent person. And we need to do everything in our power to make sure that the Board of Pardons and Paroles, the last stop in our criminal justice system, has the resources and the procedures necessary to do its job." Read full text of the op-ed below.

LETHAL INJECTION: Many States Changing Lethal Injection Process

On October 4, Ohio announced it will be obtaining its execution drug, pentobarbital, from a compounding pharmacy if it is not available from the manufacturer. Texas made a similar announcement a few days earler. In the past, some compounding pharmacies have been implicated in providing contaminated drugs with fatal side effects. These local companies are not regulated by the Food and Drug Administration. Florida announced it will be using a new drug, midazolam, in its October 15 execution. The drug will be part of a 3-drug process and has never been used before in executions. The 3-drug process can be extremely painful if the first drug is not completely effective. Missouri intends to be the first state in the country to use the drug propofol in its October 23 execution, despite the fact that the drug company that delivered the drug has asked for its return. If Missouri goes ahead with the execution, European countries may impose restrictions on the exportation of this drug, thereby affecting other uses for vital surgeries in the U.S.  Finally, Tennessee will now use only a single drug, pentobarbital, in its executions, though it did not say where it hoped to obtain the drug.

STUDIES: ABA Criticizes Texas Death Penalty in Latest Report

On September 18, the American Bar Association's Death Penalty Due Process Review Project released its latest report, focusing on the fairness and accuracy of Texas’s death penalty system. The report found: “In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty, and provides the public with inadequate information to understand and evaluate capital punishment in the state.” (Exec. Sum.) The assessment made several recommendations to help prevent wrongful convictions and improve due process, including requiring the indefinite preservation of biological evidence in violent crimes, abandoning the law's emphasis on predicting the “future dangerousness” of the defendant in deciding death sentences, and enacting appropriate statutes to deal with capital defendants with intellectual disabilities and severe mental illness. The report commended Texas on recent improvements to their justice system such as better lineup procedures, disclosure of police reports to the defense, and the establishment of two defender offices to provide capital representation throughout the state. The assessment team included Professor Jennifer Laurin from the University of Texas School of Law (Chair) and former Texas Governor Mark White.

MENTAL ILLNESS: Texas High Court Strikes Down Forcible Medication of A Death Row Inmate

On September 11, the Texas Court of Criminal Appeals held (5-4) that a trial court illegally ordered the forcible medication of a mentally ill death row inmate for the purpose of rendering him competent to be executed. The case involves Steven Staley, whose mental health began to deteriorate when he entered death row in 1991. He received an execution date in 2006, but was deemed too ill to be executed. A court ordered that his paranoid schizophrenia be treated by forcible medication, which continued for six years. In its ruling, the CCA held that “the evidence conclusively shows that appellant's competency to be executed was achieved solely through the involuntary medication, which the trial court had no authority to order under the competency-to-be-executed statute. The finding that appellant is competent must be reversed for lack of any evidentiary support.” The ruling did not address whether the state constitution forbids the execution of someone forcibly drugged or whether the defendant in this case is too ill to be executed at all. Read full text of the ruling here.

Texas Inmate Facing Execution Is First to Ask for Review Under New Law

UPDATE: Avila's execution date has been stayed. Attorneys for Rigoberto Avila have requested an evidentiary hearing under a new law passed in Texas that allows defendants to challenge their convictions if they were gained through outdated forensic techniques. His case will be the first death penalty case in the state to be considered by the courts under this new legislation. Avila, a Navy vetern, was convicted of murder in El Paso in 2001 for the tragic death of a 19-month-old infant. He is scheduled to be executed on January 15, 2014. He has consistently maintained his innocence and wants to introduce a biomechanical analysis of the cause of death and the testimony of a forensic pathologist, tending to show that the infant's death was an accident. “Finality and certainty is important," said Cathryn Crawford, one of Mr. Avila’s lawyers, "but we have to also have a criminal justice system that is flexible enough to take into account when we have scientific advancements and to allow people like Mr. Avila to have their day in court.”

MENTAL ILLNESS: Man Who Defended Himself in a Cowboy Suit Deemed Sane Enough for Execution

The U.S. Court of Appeals for the Fifth Circuit recently held that Texas death row inmate Scott Panetti is sane enough to be executed, despite his long history of severe mental illness. Panetti was sentenced to death for the 1992 murder of his in-laws. Putting aside Panetti's bizarre behavior in court, the judge allowed him to represent himself at trial, where he wore a purple cowboy suit and subpoenaed Jesus Christ and Anne Bancroft as witnesses. Panetti had been hospitalized 11 times for mental illnes prior to the murders and had been released only 2 months earlier. In a previous ruling, the Fifth Circuit held that Panetti only needed to realize he had committed a crime and was therefore being executed in order to satisfy the Eighth Amendment's ban on executing individuals who are insane. The U.S. Supreme Court stopped the pending execution and held that courts should consider a defendant's complete mental history in determining whether he has a rational understanding of his situation. Panetti has said his execution is a ruse to hide a satanic plot to kill him. The Fifth Circuit relied in part on taped conversations between Panetti and his family to determine his competency.

RECENT LEGISLATION: Texas Law To Protect the Innocent May Curtail Death Penalty

A new Texas law requiring DNA testing of all biological evidence prior to seeking the death penalty could reduce the number of capital cases. District Attorney Billy Byrd of Upshur County noted, "Essentially, every piece of evidence will have to be tested,” he said, which could delay trials more than a year. “Certainly, that will be the case. We will have to deal with certain delays and longer waits,” he added, noting it is not uncommon for DNA evidence to take more than a year to be processed. Nevertheless, Texas Attorney General Greg Abbott (a likely Republican candidate for governor) is a strong supporter of the law, as is Senator Rodney Ellis, Democrat of Houston, who introduced the bill. Abbott believes the law will eventually save the state time and resources, because the necessary testing will be done upfront.

Pages