A Texas Court of Inquiry is set to review allegations of prosecutorial misconduct by former District Attorney Kenneth Anderson, who withheld critical information in a first-degree murder case in Williamson County. Although prosecutorial misconduct has played a role in many wrongful convictions, including death penalty cases, such an oversight hearing is unusual. Sam Millsap, the former District Attorney of Bexar County, Texas, said, "I’d love to be able to tell you I am the only former elected prosecutor in the country who finds himself in the position of having to admit an error in judgment that may have led to the execution of an innocent man, but I know I am not." If the Court finds that Anderson's alleged misconduct rises to the level of a crime, the case may be referred to a grand jury. Anderson, who is now a Texas judge, presided over the prosecution of Michael Morton (pictured), who was convicted and sentenced to life for his wife's murder in 1987. Evidence suggesting Morton's innocence, including a bloody bandana found near the crime scene, was kept from the defense. DNA testing of the bandana led to Morton's exoneration in 2011, and implicated another man who is also suspected of subsequently murdering another woman. Anderson's successor as D.A., John Bradley, who fought against allowing DNA testing in Morton's case, has said he now believes he was wrong, adding, "We shouldn’t set up barriers to the introduction of new evidence."
In a recent op-ed in the Houston Chronicle, former Texas District Attorneys Grant Jones and Sam Millsap (pictured) encouraged the state legislature to reconsider the death penalty. "Both of us have been involved in the execution of men who may well have been innocent," they said, mentioning three cases that "raise serious doubts about the wisdom of continuing the death penalty." Two of the cases, those of Carlos DeLuna and Ruben Cantu, involved possible eyewitness errors. In the third case, Cameron Willingham was executed for setting the house fire that killed his daughters, but new evidence suggests the fire was accidental. Jones and Millsap said Texas is part of a "nationwide trend away from the death penalty" and that "Texans are less willing to take the risk of executing people who are innocent. You see it when they sit on juries. Death sentences in Texas have dropped more than 75 percent since 2002 and remain near historic lows in 2012." They concluded that recent reforms "make the system more accurate, but no one argues that they will catch every mistake....The professionals who administer our justice system cannot guarantee that they will never be without fault." Read the entire op-ed below.
A new report on the death penalty in Texas found that death sentences have declined by more than 75% since 2002, and more than half of all new death sentences were imposed in the Dallas-Fort Worth area this year, while no new death sentences were imposed in Harris County (Houston) for the third time in five years. The report, “
On December 5, the Texas Court of Criminal Appeals granted (5-3) Cathy Lynn Henderson a new trial based on recent scientific developments about the death of a baby who had been in her care. At one point, Henderson had been two days from execution. The appeals court accepted the factual findings of a district judge who ruled earlier this year that no reasonable juror would have convicted Henderson if presented with new scientific discoveries related to the death of Brandon Baugh. The appeals court stopped short of finding actual innocence, but granted Henderson a new trial. The prosecution’s star trial-witness, former medical examiner Roberto Bayardo, changed his initial diagnosis, explaining that advancements in the understanding of pediatric head injuries now indicate that relatively short falls onto a hard surface could produce injuries similar to those he discovered during the baby's 1994 autopsy. Henderson had claimed the baby died after slipping from her arms and falling onto a concrete floor.
A former death row inmate with intellectual disabilities has languished in the Texas prison system for over 30 years despite having no valid criminal conviction. Jerry Hartfield, an illiterate man with an IQ of 51, had his capital conviction overturned in 1980 because the jury at his trial had been improperly selected. A Texas appeals court ordered a new trial for Hartfield, but that trial has never happened. In 1983, then-Governor Mark White attempted to commute Hartfield's former death sentence to life without parole. However, a federal court has recently ruled that the commutation was irrelevant since Hartfield was not convicted of a crime. No action had been taken on the case until 2006, when another inmate helped Hartfield file a handwritten motion, asking that he be either retried or set free. The Texas Court of Criminal Appeals rejected the petition, but a federal judge agreed with Hartfield, saying the decision overturning his conviction still stands. U.S. District Court Judge Lynn Hughes said, "Hartfield's position is as straightforward and subtle as a freight train....The court's mandate was never recalled, its decision never overturned, the conviction never reinstated; yet Hartfield never received the 'entirely new trial' ordered by the court." The U.S. Court of Appeals for the Fifth Circuit called the state's defense of Hartfield's incarceration "disturbingly unprofessional" and returned the case to the Texas Court of Criminal Appeals for further action. Given the Sixth Amendment's right to a speedy trial, it is not clear that Hartfield could be re-tried.
Texas Representative Harold Dutton recently filed a bill that would prevent prosecutors in death penalty cases from using testimony from informants or from alleged accomplices of the defendant if the testimony was obtained in exchange for leniency, immunity or other special provisions. If passed, the bill would make Texas among the first states to ban such testimony. Alexandra Natapoff, a professor at Loyola of Los Angeles Law School, said, “The use of criminal informants is a massive source of error in our most serious cases…. Criminal informants have strong incentives to lie and very few disincentives to lie, because criminal informants are almost never punished.” Anthony Graves, the most recent death row inmate to be exonerated in Texas, was condemned primarily because of the testimony of an alleged accomplice, who later admitted to committing the crime alone. 
The Texas Attorney General's Office has released partial results of DNA testing long requested by attorneys for death row inmate 
On October 29, the U.S. Supreme Court agreed to hear a death penalty case from Texas to determine whether inmates there can raise claims of inadequate trial representation in federal court if they were effectively prevented from raising such a claim in their state appeal by the further failure of their appellate lawyers. Lower courts considering this issue have held that an earlier Supreme Court ruling, Martinez v. Ryan (2012), which provided such a right in an Arizona case, does not apply in Texas because defendants have multiple opportunities to claim their lawyers failed them. The case is Trevino v. Thaler. Carlos Trevino's current lawyers argue that there was a great deal of mitigating evidence that the trial lawyers failed to find and present at trial. The case will probably be argued early next year.