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.)

NEW VOICES: Why Prosecutors in Texas, Pennsylvania Are Seeking Death Penalty Less Often

Prosecutors across the country are seeking the death penalty less frequently and in recent interviews two district attorneys, one from Texas and one from Pennsylvania, have given some of their reasons why. Randall County, Texas District Attorney James Farren (pictured) told KFDA-TV in Amarillo that his experience handling one particularly lengthy and costly capital case has changed how he will make decisions in future cases that are eligible for the death penalty. He said that his office has spent, "conservatively...at least $400,000" on the prosecution of Brittany Holberg, who has been on death row since 1998. Farren said the costs are too high for taxpayers and "I do not want to subject them to this kind of thing any longer." While he said he still supports the death penalty, Farren predicted that, in the near future, the U.S. Supreme Court "likely will decide society has evolved to the point that it’s no longer appropriate." In an interview with the Reading EagleJohn T. Adams, District Attorney of Berks County, Pennsylvania, says that he rarely seeks the death penalty and is "just as happy with a life sentence as I am a death sentence." If defendantants are sentenced to life without parole, Adams says, "[t]hey will not be a threat to our community ever again. And frankly, community safety is the utmost of my concerns." Adams adds, "I think you will find throughout Pennsylvania that we are seeking [the death penalty] less and less, and I think that's good."

DPIC Releases Year End Report: Historic Declines in Use of Death Penalty in 2015

On December 16, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2015: Year End Report." The death penalty declined by virtually every measure in 2015. 28 people were executed, the fewest since 1991. Death sentences dropped 33% from last year's historic low, with 49 people being sentenced to death this year. There have now been fewer death sentences imposed in the last decade than in the decade before the U.S. Supreme Court declared existing death penalty laws unconstitutional in 1972. Just six states carried out executions, the fewest since 1988; and three states (Texas, Missouri, and Georgia) accounted for 86% of all executions. For the first time since 1995, the number of people on death row fell below 3,000. Public support for the death penalty also dropped, and the 2015 American Values Survey found that a majority of Americans prefer life without parole to the death penalty as punishment for people convicted of murder. Six people were exonerated from death row this year, bringing the total number of exonerations since 1973 to 156. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC's Executive Director. See DPIC's Press ReleaseView a video summarizing the report. (Click image to enlarge.)

Supreme Court Petition Alleges Second Conflict of Interest by Same Lawyers Accused of Abandoning Executed Texas Prisoner

 Lawyers for Texas death row prisoner Robert L. Roberson III have filed a petition asking the United States Supreme Court to review whether Seth Kretzer and James W. Volberding - the same appointed lawyers who were accused of abandoning Raphael Holiday, whom Texas executed in November - had a conflict of interest that interfered with Mr. Roberson's right to an independent legal advocate in his federal habeas corpus proceedings challenging his conviction and death sentence. In his petition, Roberson argues that his trial lawyer failed to investigate and present important mitigating evidence in the penalty phase of his case and that Kretzer and Volberding have a conflict of interest that prevented them from properly litigating that claim. Volberding represented Roberson in his state post-conviction appeals and failed to present any claim or evidence relating to counsel's penalty-phase investigative failures. He was then appointed to represent Roberson in federal court, but his prior failure to have challenged trial counsel's penalty-phase performance forfeited that claim unless Roberson could show that Volberding had unreasonably failed to raise the claim in state court. Kretzer was appointed as "supplemental counsel" to review Volberding's performance and failed to challenge Volberding's conduct. However, unkown to Roberson, Kretzer and Volbering had a close professional association, having been jointly appointed as paid co-counsel in a number of capital habeas cases. When Roberson learned of their association, he asked for new "supplemental counsel," which Kretzer and Volberding opposed. Charles Herring, Jr., an ethics expert and author of a treatise on Texas legal ethics and malpractice, and Lawrence J. Fox, former chairman of the ABA Standing Committee on Ethics and Professional Responsibility, say in affidavits supporting Roberson's petition that Volberding and Kretzer have conflicts of interest that should prevent them from representing Roberson. The Court is expected to decide in early December whether to hear Roberson's case. Kretzer and Volberding have written to the Court requesting that it dismiss the petition and permit them to file their own petition raising other issues.

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.