[Deathpenalty] death penalty news----TEXAS
rhalperi at smu.edu
Thu Sep 15 10:56:28 CDT 2011
Duane Buck, Rick Perry and the politics of death
SIMPLE RULE for killers: if you are going to murder someone in the United
States, don't try to get the job done in Texas. Keep the hostage alive in the
car till New Mexico, which recently banned the death penalty, or press on to
California, which retains the death penalty but makes available very large sums
of state money – potentially hundreds of thousands of dollars - for a capable
death penalty defence.
That's enough to hire good investigators, lawyers and expert witnesses who can
spend many years on the case – first the trial, then the penalty phase, then
the appeals process which can go on for decades. California currently has 648
prisoners on death row in San Quentin and since 1976 has managed to execute
An indigent person charged with murder in the state of Texas, however, can
maybe count on $500 for his court-appointed attorney to pay for special
expenses. Yet the cost of importing an expert witness, who will be charging
transportation, hotel and a fat fee, can easily exceed $10,000.
Business is correspondingly brisk in the lethal injection chamber in
Huntsville, Texas. There are currently 413 on death row and at the time of
writing 475 have been executed since 1976, 234 of them during Rick Perry's
decade-long stint as state governor.
By the end of Thursday, September 15, we will maybe have had to adjust the
number to 476 executed, unless Perry or his attorney general, Greg Abbott, have
granted a 30-day stay of execution for Duane Edward Buck, who on Monday had his
clemency request turned down by the Texas Board of Pardons and Paroles.
No one claims that Buck, 48, didn't shoot to death his former girlfriend and
her male companion and wound a third in Houston in 1995. At issue is what an
expert witness told the court during the sentencing hearing, where the jury
decides whether the convicted murderer should go to prison for a life term, or
get lodgings on death row.
To get Buck lined up for the lethal needle, his prosecutors needed to prove
"future dangerousness". How might Buck behave in the event he ever got out of
Dr Walter Quijano, a psychologist practising in Conroe, a town just south of
Huntsville, had actually been called by the defence, who hoped that he would
testify that Buck's killing spree was an act of rage unlikely to be repeated.
Under cross-examination, however, the prosecutors asked Quijano: "The race
factor, black, increases the future dangerousness for various complicated
reasons; is that correct?"
"Yes," Quijano answered, probably out of sheer force of habit, since usually he
was the prosecution's expert, and had testified in similar fashion for the
prosecution in six other cases, racially profiling the defendants into the
Huntsville Death House.
That was enough for the jury, which cut smartly through all uncertainty about
Buck's future decisions, by saying he should die, thus rendering speculation
In 2000, the then Texas Attorney General John Cornyn (now a Republican US
Senator), recognising the constitutional abuse for what it was, called for Buck
and the other six to receive a re-trial. Buck is the only condemned man who
hasn't got one. On Tuesday, Linda Geffin, one of Buck's prosecutors in 1995,
joined the chorus of voices calling on Gov Perry to stay his execution.
What mostly has people marveling is Quijano's career stint in the 1990s as an
"expert witness". Buck's was the only case where he was called by the defence.
Expert witnessing is a trade – often a very profitable one - in which by far
the most desirable characteristic is predictability. A truly expert witness for
the defence would have regarded it as his 1st duty to reassure the jury of
Buck's lamb-like character, utterly inconsistent with possibly lethal
"Expert" covers many a bizarre resume. One famous expert witness unearthed a
few years back by the Chicago Tribune had made it her costly speciality to
identify nose and lip prints – a forensic skill which apparently lacked any
Juries like a well-spoken expert witness, flourishing forensic data. The
popularity of shows like CSI has enhanced the reputation of forensic "experts",
even though much forensic testimony, up to and including finger-prints, is
disfigured by mishandled evidence, mendacity and incompetence.
Of course it doesn't help that Buck's case has come down to the wire amid
Perry's bid to get the Republican presidential nomination and right after Perry
issued a fervent endorsement of the death penalty, earning him hearty cheers in
the auditorium of the Reagan Library when he stressed that imposing it has
never lost him a moment's sleep.
The most notorious example of presidential ambition trumping any humane
considerations came on January 24, 1992, when Bill Clinton – beset by the
Gennifer Flowers sex scandal amid his vital primary race in New Hampshire –
hastened back to Little Rock to preside over the execution of Ricky Ray Rector,
a black man who'd managed to botch a suicide bid after his murders, and had no
idea why they were strapping him down.
As they hunted for 45 minutes for a vein into which to shoot the sodium
thiopental, Bill was having dinner with Mary Steenburgen. But that was Bill.
Maybe Perry has been on his knees asking for guidance from the Lord, or – the
functioning modern equivalent - seeking reassurance from his pollsters.
Perry won't preside over scheduled Texas execution
Texas Gov. Rick Perry apparently will not be the one to preside over Thursday's
scheduled execution of an African American man who was sentenced to die after
jurors were told that blacks are more likely to pose a future danger to the
Duane Edward Buck, 48, was convicted of fatally shooting two people near
Houston in 1995. His attorney says he is entitled to a new sentencing hearing
based on the racially charged testimony, but unless a final appeal attempt is
successful, Buck will become the 11th inmate executed in Texas this year, the
Houston Chronicle reports.
Buck's stepsister, Phyllis Taylor, who was wounded in the shooting, has
reportedly forgiven him and wants his death sentence commuted to life in
prison. She met with staffers from Perry's office last week, according to
"We still are hopeful the governor will grant a 30-day reprieve to allow state
officials time to work together to ensure that Mr. Buck receives a sentencing
hearing untainted by issues of race,” said Kate Black, Buck's Houston-based
attorney, in an interview with The Times. She is representing the inmate pro
bono through the nonprofit Texas Defenders Service.
During last week's GOP presidential debate, Perry responded to a question about
Texas' 234 executions during his tenure as governor by saying that he "never
struggled" with the issue because "the state of Texas has a very thoughtful,
very clear process in place."
But Perry will not be presiding over Buck's execution, according to Lucy
Nashed, a Perry spokeswoman.
Perry is out of state, so the responsibility falls to Lt. Gov. David Dewhurst,
a Republican campaigning for the seat being vacated by longtime Republican Sen.
Kay Bailey Hutchison, Nashed told The Times.
Dewhurst has presided over previous executions in the governor's absence,
according to spokesman Mike Walz. Dewhurst declined to comment about the Buck
case late Wednesday, Walz said.
Buck's guilt is not in doubt. At issue is the sentencing hearing, at which
jurors were asked to decide whether to condemn the Houston mechanic to death or
to life in prison. Under Texas law, the jury must weigh whether the defendant
poses a "future danger."
Walter Quijano, a psychologist brought in to testify in Buck's defense, at
first said Buck was not likely to be dangerous because he had no previous
history of violence. But when a prosecutor pressed him about whether Buck's
race "increases the future dangerousness," the psychologist said it did.
Prosecutors cited his testimony in their closing argument.
Texas state attorneys later admitted to the U.S. Supreme Court that Quijano had
wrongly injected race into the sentencing hearing for Buck and 5 other Texas
death row inmates.
The other 5 inmates got new hearings, but state attorneys refused to give Buck
one, and the courts upheld his death sentence.
Last week, one of the original prosecutors who handled Buck's case, Linda
Geffin, wrote a letter to Perry and the Texas Board of Pardons and Paroles in
support of Buck's petition for clemency or a new hearing. Although the board
recommended against clemency, Geffin said Wednesday that she was still hopeful
the governor's administration would step in.
“There is still time to right a wrong. As every minute ticks by, there’s less
time,” Geffin said. “Nobody’s saying let him out, let him free. But he is
entitled to a fair and equitable trial.”
Also Wednesday, the U.S. 5th Circuit Court of Appeals rejected Buck's motion
for a stay of execution. The court also denied Buck's authorization to appeal
an earlier rejection by the Houston Division of the U.S. District Court for the
Southern District of Texas.
Black said Buck plans to file an appeal with the U.S. Supreme Court on
(source: L os Angeles Times)
Inmate's lawyers ask Perry to halt execution
Attorneys for a man scheduled to be put to death in Texas on Thursday are
asking Gov. Rick Perry to halt the execution amid questions about the role race
played in the sentencing.
Duane Buck's case is 1 of 6 convictions that then-Texas Attorney General John
Cornyn — a political ally of Perry who is now a Republican U.S. senator —
reviewed in 2000 and said needed to be reopened because of the racially charged
statements made during the sentencing phase of the trial. A psychologist told
jurors that black criminals were more likely to pose a future danger to the
public if they are released.
Perry, the frontrunner for the Republican presidential nomination, is an ardent
supporter of capital punishment. During his 11 years in office, 235 convicted
killers have been put to death in Texas. His office says he has chosen to halt
just 4 executions, including one for a woman who was later put to death.
If courts continue to reject Buck's appeals, only Perry could delay the lethal
injection by invoking his authority to issue a 1-time 30-day reprieve for
further review. Perry's actions are being closely watched, particularly by
death penalty opponents, after he said during a presidential debate that he has
never been troubled by any of the executions he's overseen as governor.
In the 5 other cases Cornyn said needed to be reopened, prosecutors repeated
the sentencing hearings and the defendants were again sentenced to death.
Prosecutors contend Buck's case was different from those and that the racial
reference was a small part of a larger testimony about the prison population.
Buck, 48, was convicted of gunning down ex-girlfriend Debra Gardner, 32, and
Kenneth Butler, 33, outside Houston in July, 30, 1995, a week after Buck and
Gardner broke up. Buck's guilt is not being questioned, but his lawyers say the
jury was unfairly influenced and that he should receive a new sentencing
A 3rd person, Buck's stepsister, Phyllis Taylor, also was wounded, though she
has since forgiven Buck and sought for his death sentence to be commuted to
life in prison.
Gardner's 14-year-old daughter and 11-year-old son were among those who
witnessed the shootings. Officers testified that Buck was laughing during and
after his arrest, saying Gardner deserved what she got.
The Texas Board of Pardons and Paroles, all of whom are Perry appointees,
denied Buck's clemency request Wednesday, and the 5th U.S. Circuit Court of
Appeals subsequently rejected his appeal.
Buck's lawyers contend the case was "tainted by considerations of race" after
psychologist Walter Quijano testified in response to a question from lead
prosecutor Joan Huffman that black criminals are more likely to be violent
again in the future. Whether or not someone could be a continuing threat to
society is 1 of 3 questions Texas jurors must consider when deciding on a death
Cornyn said in a news release in 2000 that a half-dozen capital case sentences,
including Buck's, needed review because of Quijano's testimony at their trials.
A spokesman for Cornyn declined to comment.
Lucy Nashed, a spokeswoman for Perry, said that because the governor will be
out of state, Lt. Gov. David Dewhurst will preside over the execution. She
declined to comment further about Buck's case.
Any final order to delay would technically come from Dewhurst. However, Perry's
office frequently points out that Perry remains the governor and in contact
with Austin while traveling. Dewhurst spokesman Mike Walz said the lieutenant
governor does not comment on pending executions.
Huffman, now a state senator and one of Perry's closest allies in the
Legislature, defended asking Quijano the racially charged question, saying, "I
have absolutely no concern whatsoever." She noted that Quijano was a defense
witness, her question came in reference to a report he prepared for the defense
and the issue was raised just once.
However, Huffman's assistant prosecutor in the case, Linda Geffin, has joined
the call for a new sentencing hearing, saying Wednesday that "race should never
be put in front of a jury in any case, particularly a death penalty case."
The execution would be the second this week and the 11th this year in Texas.
Two more Texas prisoners are set to die next week.
(source: Associated Press)
With Perry, it's nice to be dead sure
Of course, throughout the movie, what Lowe was sure of — no problems with the
Apache — turned out to be patently false.
This comes to mind after comments — about the death penalty during last week's
GOP debate — from the governor who fancies himself politics' answer to John
Wayne. Here, however, Rick Perry was channeling Lowe, played by Geraldine Page.
“No, sir. I've never struggled with that at all,” was Perry's answer when
moderator Brian Williams asked if the possibility that Texas has executed an
innocent man among the record 234 under his watch caused him any sleepless
Nice to be sure.
The problem: Lowe's cinematic certainty was based on what had been demonstrably
true from observation. But Perry's certainty rests on proofs demonstrably
untrue. In fact, his actions on the death penalty are very much like a Western
shoot-'em-up, except with more gratuitous bloodshed.
There is simply no basis for such certainty. According to the Innocence
Project, there have been 43 exonerations of Texas inmates because of DNA since
1989, more than any other state.
Of these 43, one was a death-row exoneration, though this person stayed in
prison, convicted of other crimes. Other circumstances produced the release
from death row of Ernest Ray Willis in 2004. And funny thing about that, the
discredited arson science used to convict him was roughly the same as that used
to convict — and, ultimately, execute — Cameron Todd Willingham that same year.
A 2003 study about Texas and the death penalty — titled “A State of Denial” —
painted a picture of a state judicial system rife with problems.
There have been reforms, though not enough. They include, in this last
legislative session, increasing inmate access to DNA evidence testing and steps
toward uniform state witness identification procedures. But there are people in
prison, including on death row, whose convictions predate such reforms. Their
appeals for help deserve a governor who doesn't view his role as repriever of
close-to-last resort as a rubber stamp for the courts.
Williams should have been far more specific in his death penalty question — as
in asking why he believed that revelations of flawed arson evidence shouldn't
have persuaded him to stay the execution of Willingham, convicted in the deaths
of his three daughters. Perry got this countervailing evidence in plenty of
But when it comes to Willingham, things are falling Perry's way — in time for a
The Texas Forensic Science Commission, following an opinion from the attorney
general, has in its draft final report on the Willingham case language that
will stop its investigation of whether the state fire marshal's office was
negligent in its work. This AG opinion followed Perry's sacking of the
commission chairman and 2 other members last year to forestall testimony about
the flawed evidence.
The fire marshal recently agreed to review past arson cases to see if flawed
evidence was at work in these. Given that office's past stances, call me
In Rick Perry's world, however, there is apparently only certainty.
And this is just plain scary in a guy who covets a job that requires far
broader life-and-death decisions.
Nice to be sure. Dead sure, I fear, for those on the receiving end of his
Perry the Executioner----Texas leads the country in executions, and Rick Perry
holds the record tally
By midmorning on Aug. 30, 2007, Austin defense attorney Keith Hampton still had
not heard a word from the Board of Pardons and Paroles. Time was of the
essence; unless the BPP recommended a commutation and Gov. Rick Perry then
accepted it, Hampton's client Kenneth Foster would be dead by dinnertime.
Hampton was agitated. He grabbed his suit jacket and headed out, walking from
his office toward the Capitol complex. He was going to the BPP office to do ...
Just days before, he'd made the same trek with Foster's father and grandfather
for a meeting with BPP Chair Rissie Owens. They were there to plead Foster's
case: He had been just 19 when a passenger in a car Foster was driving fatally
shot Michael LaHood, son of a prominent San Antonio family. Although Foster did
not pull the trigger and had no idea that his companion, Maurecio Brown, would
shoot anyone, the state argued at trial that Foster should be put to death,
pursuant to the state's law of parties. That statute posits that if a person
should have anticipated that a crime would be committed, that person bears the
same responsibility for the crime as the doer. As they talked, Hampton watched
Owens "for a signal" as to which way the board might eventually rule. "Rissie
was a good poker player, and she has to be," he said; Hampton detected no
But Foster was special: He had killed no one. It wasn't that he had been
fingered for a killing he didn't commit (like so many other claims of innocence
to come from the row, some more disturbing – or more likely – than others); it
was that Foster quite simply was not responsible for LaHood's murder. It was a
point that earned the case attention from around the world. The mayor of Rome
lit the Colosseum in support of Foster's case; Desmond Tutu and Nelson Mandela
sent letters of support. It was a unique set of circumstances, and Hampton was
hoping the BPP would see that Foster was worthy of mercy. "This is not a dress
rehearsal; this is a one-shot deal," Hampton recalled thinking on the morning
he pleaded Foster's case before Owens – and he knew, should he win a
commutation, "it would be really unprecedented" in the modern era of Texas'
death penalty. If the BPP denied the request, then Perry would be powerless to
stop the execution; under Texas law, absent a recommendation from the BPP, the
governor has the power only to issue one 30-day stay of execution. Even if the
BPP issued a favorable recommendation to the governor, that wouldn't guarantee
Perry would accept it; if history were any indication, it was likely that he
On the day of Foster's scheduled execution, with no word from the BPP, Hampton
was frustrated. As he reached the edge of the Capitol grounds, his cell phone
rang. "The phone rings, and a reporter says, 'What's happening now?'" It took
Hampton a minute to figure out that the reporter had somehow already been
notified – before he had – that the BPP had voted, 6-1, to recommend that
Foster be given a life sentence. "I turned and went directly ... toward the
Governor's Office," Hampton recalled recently. At the elevators he ran into
Mary Anne Wiley, Perry's deputy general counsel. "'He got the commutation,' I
said; she said, 'I know, I know,'" Hampton recalled. "I said, 'Well, I need to
talk to him.' She said, 'That's not possible; it's under advisement.'" Hampton
persisted; he wanted a face-to-face with Perry, he told Wiley. "She said, very
calmly, 'He's on a plane,'" headed to Dallas. Wiley had not been given a
commutation order or Perry hadn't yet signed one, Hampton surmised.
Hampton left the Capitol and began walking back to his office; halfway across
Lavaca Street, his phone rang again. It was Wiley. "'Keith, he signed it,' she
said." Hampton turned his path toward the group of Foster supporters gathered
across the street from the Governor's Mansion to deliver the news. They were
elated; Hampton was worn out. He walked back to his office. He needed to get in
touch with Foster. He called the prison and was told that his client had been
given the news. "When he heard the news, he jumped for joy; he clapped his
hands and said, 'I knew it!'" Hampton says he was told. He laughs wryly at the
memory: "Yeah, commutations happen all the time."
In fact, commutations are exceedingly rare in Texas – virtually nonexistent. In
Rick Perry's 11-year tenure, Foster's was the sole commutation based on a
recommendation of the BPP – i.e., made without some court action (such as the
U.S. Supreme Court's 2005 ruling that banned the execution of juvenile
offenders). By the same token, independent commutation recommendations from the
board have also been few and far between: Since 2001, the BPP has made three
recommendations that a death sentence be commuted to life. In two of those
cases, Perry rejected the recommendation and allowed the offender to be
executed. In fact, Perry stands in the annals of history as the governor who
has presided over the most executions during the modern era of the death
penalty. Since 1976, when the death penalty was reinstated, Texas has executed
474 inmates; Perry has presided over 235 of those, far outpacing the second
most killing governor, George W. Bush. "Texas still by far leads ... in
executions with four times as many as any other state [in the U.S.]," says
Richard Dieter, executive director of the D.C.-based Death Penalty Information
Center. As executions nationally have declined over the last decade, Texas'
death machine has not slowed, even as the number of new death sentences imposed
by Texas juries (and sought by Texas prosecutors) has decreased. "The decline
is a national phenomenon," says Dieter, "but Texas still leads the way" in
As concerns about the death penalty have increased nationally – with 16 states
now banning capital punishment and several more (Maryland, Montana, Colorado)
likely to do so soon, says Dieter – Perry has not hinted that he has any
concerns either about flaws within the machinery of justice or that tinkering
with life and death might be a risky business. (He reiterated that conviction
last week in a GOP presidential primary debate when the mention of his record
of executions elicited cheers from the partisan crowd.) In fact, he's said the
opposite. When Anthony Graves was freed last year after 18 years behind bars –
including 12 on death row – for a crime that essentially no one, including
Perry, now believes he committed, the governor said Graves' exoneration was an
example of how well the Texas system works. "I think we have a justice system
that is working, and [Graves is] a good example of .... You continue to find
errors that were made and clear them up," Perry told reporters. "That's the
good news for us, is that we are a place that continues to allow that to
occur." With a backdrop of questions and concerns about capital punishment
rising across the country, Perry's emergence as a tough-on-crime candidate for
president raises its own serious question for voters: What does Perry's record
in dealing with death say about the governor's approach to and feelings about
Out of the Norm
Should Perry wish to commute a death sentence, under state law he must wait for
the BPP to recommend he do so before he can act accordingly. In that sense,
says Jordan Steiker, a professor at the University of Texas' School of Law and
co-director of its Capital Punishment Clinic, a Texas governor's hand is not as
strong in death cases as some might suppose. "The sort of large picture ... is
that the governor isn't all that powerful," he says. Yet the governor is
responsible for appointing the members of the BPP (because Perry has been
governor for three terms, all of the current appointees were named by him) and
so is effectively able to stack it as he wishes. If Perry were at all skeptical
of capital punishment, one would expect that skepticism to be reflected in his
choices for the board.
As it stands, the current members are a not a bleeding-heart bunch. That is one
reason that the Foster case stands out: "The Foster case was unusual; it was an
actual vision of the death penalty as being disproportionate," says Steiker.
"But [Perry] hasn't been consistent with that principle since Foster." Indeed,
although "his powers are significantly limited in terms of clemency
procedures," notes Kristin Houlé, executive director of the Texas Coalition to
Abolish the Death Penalty, Perry has demonstrated clearly that he runs the
show, rejecting the two other cases where the board recommended clemency –
including one similar to Foster's. In 2009, the BPP recommended that Perry
commute the sentence of Robert Thompson, also convicted and sentenced to die
under the state's law of parties. Thompson had participated in a robbery that
left a store clerk dead, but he had not fired the fatal shot. His accomplice,
Sammy Butler, was responsible for Mansoor Mohammed's death; at trial, Butler
was given a life sentence. In rejecting the BPP's recommendation, Perry noted
that Thompson had a "murderous past."
(It's necessary to point out that the state of Texas only employs a "clemency"
process at all because the U.S. Supreme Court has ruled that one is required
for any state that allows the death penalty. In fact, the Texas system is
designed so that actual clemency – an extrajudicial judgement of mitigating
circumstances requiring mercy – has as little effect as possible. State
officials, including the governor and his appointed members of the BPP,
routinely cite the existence of "due process" – trial, conviction, and appeals
– for their confirmation of death sentences, and potential reasons for clemency
are rarely addressed at all.)
Although the notion that the state would kill someone who had not actually
killed had drawn worldwide attention to Foster's case, that was not the reason
Perry gave for commuting Foster's sentence. Rather, it was the fact that Foster
and Brown, the triggerman, had been tried together, that Perry said compelled
him to grant the commutation. "I am concerned about Texas law that allows
capital murder defendants to be tried simultaneously, and it is an issue I
think the Legislature should examine." The Lege has done so; in 2009 two bills
were filed to address the issues raised in Foster's case, but both ultimately
died. One version, by former Dallas Rep. Terri Hodge, took death off the table
for a nontriggerman and required severance of capital trials. It passed the
House but was then stripped of the provision that would ban death for a party
like Foster or Thompson. Houlé recalls that this was because Perry indicated
the bill would not otherwise earn his signature. "[T]he word came down from the
governor that he would veto it," she said recently. Although the bill was
stripped to require only severance in capital trials, it still did not make it
to the governor's desk. Perry's tinkering in the process is telling, says
Houlé. "It's interesting that he would intervene in [an attempt to outlaw] a
practice that most people believe is wrong and out of the norm in terms of the
It was not the first time that Perry has intervened, nor the most
controversial. That occurred in 2001, when Perry vetoed a measure that would
have banned the execution of the mentally retarded. "[A]fter many difficult and
emotional days of analysis and decision-making – I am vetoing" the bill, he
said in a prepared statement on June 17, 2001. The problem with the bill was
that as written, he said, it would strip juries of their final decision-making
power. The bill "is not about whether to execute mentally retarded capital
murderers," he said. "We do not. It's about who makes the determination in the
Texas justice system. I believe it is wrong to execute individuals with mental
retardation," he continued. "And we do not allow for the execution of the
mentally retarded today in Texas." Perry's assurance that the state doesn't
execute – and hasn't executed – inmates with mental retardation was troubling
to many criminal justice practitioners (indeed, the U.S. Supreme Court noted
Perry's veto in its 2002 opinion outlawing the practice of executing those with
mental retardations). Despite numerous attempts since to pass a bill to ensure
compliance with the ban, lawmakers have yet to do so, allowing the
determination to be made by jurors on a case-by-case basis.
Nothing To See Here
Blocking legislation – directly or behind the scenes – is just one facet of
what criminal justice practitioners say is Perry's leadership style when it
comes to capital punishment. "The cues to his leadership style are in the few
moments where he executed a role that is unusual," says Steiker, such as
vetoing the mental retardation bill or in commuting Foster's death sentence.
Otherwise, says Maurie Levin, a veteran death penalty attorney who, with
Steiker, directs UT Law's Capital Punishment Clinic, it is hard to know much at
all about Perry and his role in the clemency process – and that itself is
disturbing. "Another hallmark of [Perry's] administration is the number of
people executed ... and the way in which he has made this a completely closed
process," Levin says. "Whereas under Bush we were able to see" more clearly how
decisions were made, she says, "Perry decided that was going to be a closed
Like Bush and those before him, Perry has said that deciding who dies at the
hand of the state is a grave and most serious matter: "The power to make
life-and-death decisions is the most sobering responsibility imaginable," he
told the Texas Association of Broadcasters in 2001. "I have always exercised
this power with the gravity due such a life and death decision. And I will
continue to review each capital punishment case brought before me to ensure
that due process has been served." It was an echo of his predecessor: Deciding
capital cases is "by far the most profound" decision a governor has to make,
Bush wrote in his autobiography. "I get the facts, weigh them thoughtfully and
carefully, and decide."
Those words came back to embarrass Bush when a group of clemency memos,
prepared by his general counsel Alberto Gonzales, was released – after
then-Attorney General John Cornyn ruled in 2000 that the memos were subject to
the state's open records law – and later became the basis of an article by Alan
Berlow in The Atlantic. The memos belied the gravity with which Bush claimed he
considered life and death matters. "Gonzales's summaries were Bush's primary
source of information in deciding whether someone would live or die," Berlow
wrote. "Each is only 3 to 7 pages long and generally consists of little more
than a brief description of the crime, a paragraph or 2 on the defendant's
personal background, and a condensed legal history." And each "repeatedly
failed to apprise the governor of crucial issues in the cases at hand."
Death penalty opponents at a protest last fall
In the wake of that article, the Chronicle filed a request not only for the
Bush memos but also for all of Perry's clemency memos. The Bush memos were
released; Perry's were not. In 2002, Attorney General Greg Abbott was elected
and the rules were changed. According to Abbott, the memos in their entirety
could now be considered "privileged" attorney-client communications and thus
exempt from disclosure. We filed a similar request this summer, only to have it
once again sent to the A.G. for determination. Although we are still waiting
for a formal ruling, we expect that we will again be denied. Indeed, where the
state once considered that these sorts of communications should only be
redacted – releasing "factual" information contained in the documents and
obscuring the privileged information – Abbott's office ruled in 2003 that the
entire document could be withheld regardless of how much factual information it
contains. In addition to requesting the memos, this year we also requested all
emails "to and from the governor," for a given period of time, concerning
recently executed Mexican national Humberto Leal; in a new twist, Perry's
office is also seeking to keep from the public the content of any of those
emails, claiming that some of them are to or from legal staff and that these
too are "privileged." We are expecting an opinion on this matter by the end of
That Perry has clamped down on the release of his clemency memos is not
surprising, says Levin, but it is nonetheless dismaying. "At any point where
there was transparency in the process – and that's a generous word,
transparency – it demonstrates the fallacies in the system. Perry shut down any
transparency. Given the number of executions under his watch," she says,
"that's a really damning legacy." Houlé suggests that this is a hallmark of
Perry's general approach to the state's criminal justice system. "An
unrepentant unwillingness to admit that mistakes are made," she says. "With
Perry, he's never had any doubts. [To him] the exoneration of somebody shows
that the system is working – no, a system that works wouldn't have put that
person behind bars in the first place."
A Dangerous Mentality
Perry's unwillingness to admit there might be flaws in the system is what death
penalty law veterans say has led to a more than 2-year political battle to
close an inquiry into the 2004 execution of Cameron Todd Willingham, convicted
and sentenced to die for the arson-murder of his three young children in
Corsicana. According to the fire investigators in 1991, Willingham
intentionally set ablaze his home, killing his children. Since his conviction,
however, fire science has evolved; to date, roughly a dozen leading fire
experts across the country say that the "science" used to convict Willingham
was junk, inadequate to determine a fire's origin. That is what the nation's
preeminent fire expert, Austin-based Dr. Gerald Hurst, has been saying since
2004. Hurst's grave doubts about the Willingham fire were presented to Perry's
office prior to Willingham's execution; Perry did nothing to stop it. At the
very least, Willingham defenders argue, he should have imposed a 30-day stay to
allow time for Hurst's information to be fully reviewed. "He hasn't been
leading the way," says Hampton; "he's been reactive."
In fact, since Willingham's execution, Perry has remained locked into a
position that Willingham was certainly guilty – "a monster," he's told
reporters. Yet at the same time, Perry has gone out of his way to control an
ongoing inquiry into whether the state relied on junk science in order to
convict Willingham and ultimately to execute him. The Innocence Project in 2006
asked the nascent Forensic Science Commission to investigate that possibility
(in both the Willingham case and in that of Ernest Willis, who was sent to
death row based on the same science but later released after prosecutors
concluded that he had been wrongly convicted). As the investigation was heating
up in 2009, and just days before the panel was set to hear testimony from fire
investigator Craig Beyler (who had written a report critical of the science the
state had relied upon), Perry stepped in, replacing key members of the
commission, including its self-selected chair, Austin defense attorney Sam
Bassett, and installing instead his political ally, Williamson County District
Attorney John Bradley, whom Perry also named as the FSC chair. Bradley quickly
put the brakes on the inquiry.
Bradley ultimately lost his seat at the table this year – his was an interim
appointment, and lawmakers during this year's regular session declined to
confirm him (see "Texas Forensics: Politics vs. Justice"). Bassett calls his
experience on the FSC "enlightening" – he's a supporter of the death penalty,
when used sparingly and in guilt-certain cases, but says that his time on the
panel changed his "perspective on how post-conviction matters are handled in
Texas, including the work of the Governor's office," he wrote in an email to
the Chronicle. In a system "flooded" with cases to review, it appears that
expertise and experience in assessing cases for serious flaws is lacking. "The
Willingham case is a great example," he wrote. Perry's office received Hurst's
memo just hours before Willingham's execution, he recalled, which included
information that had not previously been litigated. "In such a case, an
experienced criminal law practitioner could have done a better job advising the
Governor to grant a 30-day stay to study the issue since the memo did raise
legitimate concerns," he wrote. "For whatever reason, that did not happen. It
is likely that a serious examination of the points raised by Hurst would have
resulted in a new trial for Willingham," he continued. "Our system is
conditioned to ignore requests to re-examine evidence after a jury has found a
person guilty. I think that mentality is dangerous."
While it seems easy to lay at Perry's feet the responsibility for the real and
perceived failings of Texas' capital punishment system, Amarillo attorney Jeff
Blackburn, chief counsel for the Innocence Project of Texas, argues that in
fact Perry has been more friend than foe to advocates for criminal justice
reform. He bucked the courts and powerful state district attorney lobby in
granting pardons for the victims of the notorious 1999 Tulia drug sting – a
move that was "very risky," Blackburn says. "D.A.s all over the state were
opposed to providing these people relief; the Court of Criminal Appeals was
opposed to any relief. In hindsight we say it was no big deal. That's baloney.
When you're in the middle of it, it is a big deal." Perry has signed into law
numerous reforms: There is now prisoner access to post-conviction DNA testing,
a life-without-parole sentencing option, and newly inked eyewitness
identification reforms. "Perry's actually the least ideological governor that
we've ever had – at least in recent memory – on criminal justice reform
issues." Indeed, Scott Henson, who writes the Grits for Breakfast blog (and has
worked with the Innocence Project of Texas, among other criminal justice reform
groups), has echoed that sentiment. "I don't agree with Perry on every subject,
by a longshot, and he's probably used the threat of the veto to scuttle as much
good legislation as actually passed during his time in office," he wrote on
Sept. 1. "But Perry's record on criminal justice is more moderate and complex
than his fire breathing pronouncements on the death penalty might lead one to
expect. If you're reading this from another state, there's a good chance your
Governor can't match Perry's record on criminal-justice reform."
Yet where death is concerned – for which there are no do-overs – criminal
justice practitioners are far less charitable. Levin points to the
"aggressiveness with which he shut down the Willingham inquiry" as telling of
Perry's approach to and attitude about capital punishment. "[T]hat one was
directly attributable to him, with substantial potential for culpability or, at
least, carelessness in his approach to the process," she said. That it appears
he is trying to keep the truth – whatever it may be – from coming out is "scary
at best, and really horrifying."
Whether Perry's approach to capital punishment in Texas will matter at all on
the national stage remains to be seen. It's unlikely to hurt him – and might
well improve his chances – with Republican primary voters. Nationally in a
general election, however, with the number of new death sentences and
executions dropping dramatically since the mid-Nineties and the growing number
of cases of wrongful convictions – led by DNA exonerations – a traditionally
tough-on-crime approach toward public safety may not play as well to an
electorate increasingly aware of the criminal justice system's dysfunctions.
"The national [stage] is probably more skeptical of the death penalty and sees
its problems. That is why the numbers are decreasing," says Dieter. But those
doubts – especially when it comes to flaws related to cases involving the
ultimate punishment – do not appear to have plagued Perry. "To not see its
flaws or to step in and say we need to look at this more closely" could pose a
challenge for Perry as he broadens his national campaign, says Dieter. With so
many executions in Texas, there has been plenty of "opportunity in Texas to
say, 'This case is somewhat doubtful'" – yet that hasn't happened. What Perry's
record says about his more general approach to crime and punishment may be
mixed or even opaque. But there's one thing advocates consider clear. Perry
"certainly hasn't stood up and said we have to be more careful," Dieter says.
"That kind of image will have to be dealt with and defended."
Last week, the state Forensic Science Commission indicated that it will close
its Cameron Todd Willingham inquiry without issuing conclusions about whether
state fire investigators had engaged in misconduct or negligence during their
investigation into the fatal fire that claimed Willingham's children – and
ultimately, through execution, Willingham. Attorney General Greg Abbott had
issued an opinion strictly limiting the commission's jurisdiction – an issue
brought to the AG by Perry's mid-investigation appointee, Williamson County
D.A. John Bradley.
(source: Austin Chronicle)
The Elephant in the Room in the Duane Buck Case
Barring a last-minute reprieve from Governor Rick Perry, sometime after 7 p.m.
on Thursday Duane Buck will become the 235th person to be executed in Texas in
the last decade. Buck's case has drawn attention because of the role race-based
testimony may have played in obtaining the death sentence. As I reported
previously, a psychologist summoned by Buck's attorney testified under
cross-examination that Buck's race (he's black) made him a greater threat to
society; that testimony was then cited in the prosecutors' closing argument.
Buck's case is noteworthy because the racial argument was made so explicitly,
and under oath. But the reality is that race is a determining factor in capital
punishment sentencing whether a psychologist says so out-loud or not. As
Amnesty International notes, "the single most reliable predictor of whether
someone will be sentenced to death is the race of the victim." Among other
things, they point out that:
--A report sponsored by the American Bar Association in 2007 concluded that 1/3
of African-American death row inmates in Philadelphia would have received
sentences of life imprisonment if they had not been African-American.
--A January 2003 study released by the University of Maryland concluded that
race and geography are major factors in death penalty decisions. Specifically,
prosecutors are more likely to seek a death sentence when the race of the
victim is white and are less likely to seek a death sentence when the victim is
--A 2007 study of death sentences in Connecticut conducted by Yale University
School of Law revealed that African-American defendants receive the death
penalty at 3 times the rate of white defendants in cases where the victims are
white. In addition, killers of white victims are treated more severely than
people who kill minorities, when it comes to deciding what charges to bring.
That kind of institutional bias means that it's a lot harder to point to
specific cases, a la Buck, in which race impacted the sentence—which means
that, unlike Buck, most defendants will have a hard time making the case that
their sentencing was in any way mishandled. But taken in sum, the numbers are
(source: Tim Murphy is a reporter at Mother Jones)
Rick Perry's Next Controversial Execution Comes Thursday
Having devoted significant attention to Rick Perry's role in the execution of
Cameron Todd Willingham, let's turn our attention to what could potentially be
Rick Perry's next controversial execution -- Duane Edward Buck's, currently
scheduled for Thursday. The Buck case, it should be noted, is dissimilar from
the Willingham case in many vital ways -- the most important being that
prosecutors proved beyond a reasonable doubt that Buck committed the 1995
double murder with which he was charged. Nevertheless, there are some
The controversy in Buck's case stems from potential malpractice that occurred
during the sentencing stage of his trial. Here, we kick things over to Tim
Murphy of Mother Jones, who's been giving this matter considerable attention:
Prosecutors firmly established Buck's guilt, but to secure a capital punishment
conviction in Texas they needed to prove "future dangerousness"—that is,
provide compelling evidence that Buck posed a serious threat to society if he
were ever to walk free. They did so in part with the testimony of a
psychologist, Dr. Walter Quijano, who testified that Buck's race (he's African
American) made him more likely to commit crimes in the future (Quijano answered
in the affirmative to the question of whether "the race factor, [being] black,
increases the future dangerousness for various complicated reasons.")
As you might imagine, the way in which Quijano made the blanket assertion that
race was a determining factor in assessing future criminality is a wee bit
untenable, constitutionally speaking. As Murphy reported, back in 2000, when
Sen. John Cornyn (R-Texas) was Texas' attorney general, he caught wind of a
similar controversy in the sentencing phase of an Argentinian man named Victor
Saldano. Cornyn recognized the problem, sought and won the right to retry the
case, and compiled a list of cases in which the death penalty had been assigned
based on similar race-based theories of criminality. Per Murphy, all of the
cases Cornyn identified have been retried, save for Buck's.
If you're familiar with the Willingham case, you are probably asking yourself,
"What's wrong with the forensic psychiatrists they're relying on in Texas?"
Willingham didn't have to worry about his race being thought of as a factor in
future criminality, but there was still recognizable malpractice to be found.
As David Grann reported back in 2009, Willingham's prosecutors relied on two
forensic psychiatrists to offer a profile of Willingham. Neither man actually
met with Willingham. One, Tim Gregory, harped on the fact that Willingham owned
an Iron Maiden poster, with which he attributed to Willingham an unnatural
obsession with "death, dying" and "satanic-type activities." The other
psychiatrist, James P. Grigson...well, he was a piece of work:
He testified so often for the prosecution in capital-punishment cases that he
had become known as Dr. Death. (A Texas appellate judge once wrote that when
Grigson appeared on the stand the defendant might as well “commence writing out
his last will and testament.”) Grigson suggested that Willingham was an
“extremely severe sociopath,” and that “no pill” or treatment could help him.
Grigson had previously used nearly the same words in helping to secure a death
sentence against Randall Dale Adams, who had been convicted of murdering a
police officer, in 1977. After Adams, who had no prior criminal record, spent a
dozen years on death row—and once came within seventy-two hours of being
executed—new evidence emerged that absolved him, and he was released. In 1995,
three years after Willingham’s trial, Grigson was expelled from the American
Psychiatric Association for violating ethics. The association stated that
Grigson had repeatedly arrived at a “psychiatric diagnosis without first having
examined the individuals in question, and for indicating, while testifying in
court as an expert witness, that he could predict with 100 % certainty that the
individuals would engage in future violent acts.”
So it would seem that Texas has something of a troubled history with
psychiatric determinations of future criminality. Of course, in the Willingham
case, it wasn't these psychiatrists who convinced Rick Perry that Willingham
was an "exteremely severe sociopath" -- their testimony was for the jury's
consumption. The guy who helped convince Perry was Willingham's own defense
attorney, David Martin -- and Perry was not shy about citing Martin's opinion
as a reason to not offer clemency.
This raises an interesting question, though: If Perry's willing to listen to a
defense attorney in this fashion, would he be swayed by a prosecutor? Because
one of the prosecutors in Buck's case is trying to get Perry to listen to him.
Per Murphy: "Last week, one of the Harris County prosecutors who helped secure
Buck's conviction wrote a letter to Perry urging him to grant a re-trial."
This past Monday, Texas Board of Pardons and Paroles turned down Buck's
clemency request, so now it's up to Rick Perry or his current attorney general,
Greg Abbott, to grant a stay of execution and retry the case according to
Cornyn's original plan. What are the odds this will happen? Over at Salon, Alex
Pareene suggests it's a long-shot: "As we have seen, killing lots and lots of
people is one of the things about Rick Perry that Republican voters love, so I
can't imagine he'll grant clemency or even delay the sentence." Of course, all
of the controversy Perry generated during the recent MSNBC/Politico debate
could spur Perry to do something for the sake of putting the matter to bed, and
Perry could grant the stay with some confidence that Buck could still be
potentially sentenced to death on retrial. Nevertheless, I fear that Pareene is
(source: Jason Linkins, Huffington Post)
Duane Buck lawyers appeal to Rick Perry for stay of execution----Lawyers for
death row inmate sentenced on basis of racist testimony in 11th-hour in plea to
Lawyers for a death row inmate in Texas who was sentenced to death on the basis
of testimony from a psychologist who argued he was a risk to the public because
he is black are making frantic eleventh-hour efforts to spare him from the
execution chamber on Thursday.
If their pleading fails to sway the Texas authorities, Duane Buck, 48, will be
put to death by lethal injection at 6pm local time. His lawyers are appealing
to the governor of Texas, Rick Perry, to use his powers to delay the execution
to allow for the case to go to resentencing given the racially tainted nature
of the original punishment.
Lawyers are also calling on the district attorney in Buck's local area to
postpone the execution date, and are filing for a stay of execution to the
Texas appeals court. Should these attempts fail, Buck would become the second
death row inmate in Texas to be executed this week, with two more scheduled to
die next week.
The issue of capital punishment has entered into the national political debate
surrounding Perry's bid to become the Republican candidate in next year's
presidential election. Last week Perry, who is emerging as the frontrunner to
take on Barack Obama in the November 2012 election, was quizzed about his
enthusiasm for the death penalty in a TV debate.
Perry said he had no qualms at all about any of the executions that have taken
place on his watch, which include those of mentally ill prisoners, women,
almost certainly innocent individuals and juveniles. The Republican audience
cheered when they heard that 234 people had been put to death during Perry's
term in office – the highest number of any US governor in modern history.
On Tuesday night, the 1st of 4 death row inmates scheduled to die in an 8-day
period in Texas was administered the lethal injection. Steven Woods professed
his innocence up to the minute of his death. His last words were: "You're not
about to witness an execution, you're about to witness a murder ... I've never
killed anybody, never. This whole thing is wrong."
Woods was convicted of killing Ronald Whitehead and Bethena Brosz in a drugs
dispute in May 2001. His alleged accomplice later confessed to having pulled
the trigger and, in a plea bargain, was given a life sentence while Woods was
put on death row.
Death row campaigners are even more exercised about the case of Buck. Although
there is no dispute over his guilt in a double murder in 1995 of his former
girlfriend and a man, the jury at his sentencing hearing were presented with
Under cross-examination from the prosecution, a psychologist was pressed to say
that black people presented a greater risk of violent reoffending when released
back into the community. Buck is African-American.
Perry does not have the power to commute the death sentence, following the
decision of the Texas Board of Pardons and Paroles to dismiss an appeal for
clemency. However, the governor does have the power to order a 30-day reprieve.
Buck's lawyer, Kate Black, told the Guardian such a reprieve would "allow time
for the parties to come to an agreement that would afford Duane Buck a new
sentencing hearing, untainted by race".
Phyllis Taylor, a friend of Buck's victims who was wounded in the shooting, has
come out in his support and called for the death sentence to be commuted to
life in prison. "Through everything that has happened, I have found forgiveness
in my heart. I forgave him because I know for a fact that he wasn't in his
right mind," she said.
Texas executes more people than any other state in the nation, with 10 put to
death so far this year. 17 executions were held in 2010.
(source: The Guardian)
News Death Row Inmate Fighting Capital Murder Conviction
Death row inmate John Henry Ramirez was back in the courtroom today, fighting
to overturn his capital murder conviction.
Ramirez was on the run for 4 years after killing times market employee Pablo
Castro in July of 2004. Castro was taking out the trash when Ramirez slashed
his throat and stabbed him more than a dozen times, robbing him of little more
than a dollar.
Today Ramirez's attorneys tried to prove their client had an unfair trial,
claiming the old defense team was ineffective during his 2008 capital murder
trial. Ramirez' new legal team claims the jury was biased against their client
because of tight security during his trial.
To counter that claim, the prosecution put Ramirez's capital murder attorney,
Grant Jones on the stand. Jones was questioned about the ankle shackles ramirez
wore during his trial, but he insisted that the shackles were not within the
jury's view. He said had the shackles been obvious to the jury, he would have
moved for a mistrial. Jones also reminded the court that it was Ramirez who
asked that no evidence be presented on his behalf during the punishment phase
of the capital murder trial. Jones said he believed Ramirez was competent to
make such a decision, and that decision was not based off emotions, something
Ramirez openly disagreed with in court this morning.
The prosecution also called up two Nueces County Sheriff's Deputies, who
provided security during the trial and jury selection. They testified that the
level of security during Ramirez's time in court was standard for capital
The appeals hearing will continue on September 26th. It was recessed at the
request of the defense who told Judge Galvan they need more time to prepare
(source: KRIS TV News)
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