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Thread: Texas Capital Punishment News

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    Texas Capital Punishment News

    Attorneys seeking a stay of execution for condemned inmates must now file their motions at least 48 hours before a scheduled execution, under a new rule adopted by the Texas Court of Criminal Appeals.

    The rule allows for late filings if lawyers can show "good cause" that meeting the deadline was "physically, legally or factually impossible."

    The court generated controversy last September when Presiding Judge Sharon Keller ordered the court clerk's office closed at 5 p.m., though a condemned inmate's lawyers asked for more time to file an appeal after having computer troubles.

    The inmate, Michael Richard, was executed for a Harris County murder later that night.

    Following that incident, the court announced it would accept emergency e-mail filings in death penalty cases. Presumably, that wouldn't be changed by the new rule, provided attorneys demonstrated "good cause" if the e-mail filing were after the 48-hour deadline.

    Keith Hampton, a spokesman for the Texas Criminal Defense Lawyers Association, said most filing delays are "generated by the process itself."

    That is, a lawyer can't file for a stay with the Court of Criminal Appeals until after a lower state court or a federal court has ruled. Hampton said he hopes the "good cause" exception would apply in those cases.

    " 'What is good cause?' would be the next question," he said.

    http://www.chron.com/disp/story.mpl/...n/5861222.html

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    Veto threat alters death-penalty bill

    Facing a veto threat from Gov. Rick Perry, members of the Senate Criminal Justice Committee voted this evening to drop a controversial provision from a bill designed to keep defendants from being executed who were involved in a capital crime, did no killing themselves.

    As amended, House Bill 2267 now will require only separate trials for co-defendants in capital murder cases, where 1 defendant committed the murder and the other did not.

    Advocacy groups immediately decried the last-minute change, but said they still supported separate trials.

    As approved by the House last week, the bill would have been significant change in the state’s death-penalty law, one that was vehemently opposed by prosecutors and cheered by death-penalty opponents.

    Under current law, known as "the law of parties," multiple defendants in a capital murder case can face execution, even if they did not pull the trigger.

    Texas has been criticized nationally in past years for cases in which the triggerman cut a deal with police and escaped execution, after testifying against a co-defendant who did not pull the trigger but was executed.

    Prosecutors have argued that if defendants participate together in a crime, even if one stands and watches an accomplice commit murder, they should be held equally liable.

    "We wanted that provision to stay in, but the Governor’s Office made it clear they would veto the bill if that went through," said state Sen. Juan Hinojosa, D-McAllen. "At least we're changing it so co-defendants will have to be tried separately. You won't taint an accomplice by having them sit beside the triggerman in court at the same trial."

    While Hinojosa said he was not satisfied with the change, "we're not going to get any progress on this area of law until we get another governor. I realize that, so we do what we can."

    After the disputed wording was deleted, the bill was passed unanimously by the committee, the last stop before the measure will come for a vote by the full Senate.

    When the measure passed the House last Friday, its sponsors tagged it the "Kenneth Foster Jr. Act," after a man whose death sentence was commuted to life imprisonment by Perry in 2007.

    Foster was sentenced to die as a co-defendant in a case, even though he did not kill anyone. He was convicted in a trial with the killer.

    A similar case involving a condemned co-defendant, Jeff Wood, has been championed as a reason to change the law. Wood remains on death row, after his co-defendant — the killer — has been executed.

    "It will be an important reform to require separate trials in capital cases, but we will be disappointed if the provision to prohibit the state from seeking the death penalty in law of parties cases is removed from the bill. People who do not kill anyone should not be punished by death," Scott Cobb, president of Texas Moratorium Network, a death-penalty opposition group, said before the committee's vote.

    "This bill is very important because it touches the lives of innocent people that did not kill and are waiting to be executed for crimes that they did not commit."

    (source: Austin American-Statesman)

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    Perry's 200th Execution Sparks Worldwide Protest

    Dozens of death penalty opponents gathered on the steps of the Texas Capitol Tuesday evening to protest the 200th execution under Gov. Rick Perry, which was scheduled for 6 p.m.

    Perry's approval of the execution of Terry Lee Hankins marks the highest number of executions performed by any governor in American history. Hankins, who shot his wife and child in their sleep, has previously described himself as a "non-caring monster."

    Austin's protest took place in conjunction with similar protests taking places in the country and around the world, including Houston, Albuquerque, Liepzig, German and Paris, France.

    The Austin protestors, holding signs and placards, crowded the Capitol’s entrance along Congress Avenue. A symbolic "burial" took place where 200 candles were placed one by one in a cardboard coffin. The names of each person executed, and the crime they had committed was announced at the sound of a bell.

    Alexis Konevich, a philosophy senior at St. Edwards University and intern for the Texas Coalition to Abolish the Death Penalty, said executions were ethically and morally wrong and do not support her personal moral beliefs.

    "By the standards of our Constitution, I believe it is cruel and unusual punishment," Konevich said.

    Scott Cobb, president of the Texas Moratorium Network said the protests, organized by anti-execution organizations, served to demonstrate that people are opposed to the use of the death penalty in Texas.

    "Texas just executes more people than other states," Cobb said. "When you travel abroad, and you say you are from Texas, the 1st thing that comes to mind is executions and maybe cowboys."

    Cobb said he would be protesting outside the Huntsville prison where Texas executes those on death row.

    "I think that people will have an effect on public opinion and policy makers," Cobb said. Kristin Houlé, the director for the Texas Coalition to Abolish the Death Penalty, who was present at the Capitol’s protest, said as people become more educated on the topic and understand the complexity of the practice, support for the death penalty is starting to wane.

    "You can't help but feel a sense of sadness for the lose of life on both sides," Houlé said 6 minutes before Terry Hankins was scheduled to die.

    (source: University of Texas Daily Texan)

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    Harris County loses state lead in executions

    Texas prison records show effect of 2005’s life-without-parole option

    Long the state's leader in sending convicts to death row, Harris County has fallen behind both Bexar and Tarrant counties in the number of death sentences it imposes, an analysis of eight years of records shows.

    Texas' final death sentence of the year came eight days before Christmas for inmate Jerry Martin, condemned for slaying a 59-year-old female prison guard by ramming her horse during an escape attempt in Walker County.

    Martin's case brought Texas' total to a historic low of nine new death sentences in 2009 — including cases scattered around the state but none from Harris County.

    Since a new life-without-parole law took effect in 2005, Harris County — with a national reputation for pursuing capital punishment and home to the fourth-largest city in America, with a population of nearly 4 million people — has sent fewer inmates to death row than Tarrant or Bexar counties, urban counties that include Fort Worth and San Antonio, respectively. Tarrant County's population is about 1.7 million; Bexar's is 1.6 million, U.S. Census records show.

    Bexar and Tarrant each sent eight newly convicted killers to death row in the four years since the law took effect, state prison data show. In the same period, larger Harris and Dallas counties sent six apiece, based on the Chronicle's analysis of Texas Department of Criminal Justice death row arrivals.

    Those tallies don't include killers, five in Texas in 2009, who remained on death row after their convictions or sentences were overturned on appeal but who were later resentenced to death.

    Texas was the last of the nation's 35 death penalty states to adopt life without parole as an alternative in capital cases. The law offered a legal guarantee to jurors and prosecutors alike that convicted killers sentenced to an isolation cell in lieu of an execution chamber could never be freed.

    Statewide, only about 50 inmates have been added to death row since the law took effect Sept. 1, 2005. In contrast, from September 2001 to September 2005 — the four years before the law was enacted — 90 were sentenced to death.

    The post-life-without-parole decline in death sentences exceeds 40 percent.

    State Sen. Rodney Ellis, D-Houston, attributed long-term declines in death sentences to a “broader change” in public opinion driven by recent death row exonerations.

    “While Texas' 2005 life-without-parole law may have driven down death sentences even further, the fact is that death sentences have been steadily dropping throughout the country this decade,” he said.

    Texas remains the center for U.S. executions, carrying out 24 of the nation's 52 in 2009, the nonprofit Death Penalty Information Center reported Dec. 18.

    But California led all states in imposing 29 death sentences and executing none. Its death row population stands at 697.

    Experts agree that the life-without-parole option has affected both Texas prosecutors' decisions to seek death and juries' decisions to impose the death sentence. But its effect appears to vary from case to case and place to place.
    Supreme Court rulings

    One 2009 death sentence came in February for Raul Cortez, who pretended to be looking for a lost puppy in 2004 and then brutally executed four people in a suburban McKinney home. But a sentence of life without parole went to another man who killed three members of a family on their remote farm near Pampa in 2005, after a Lubbock jury deadlocked over his proposed death sentence in October.

    Roe Wilson, a prosecutor who has long overseen death row appeals for Harris County, agreed the state's life-without-parole law likely has reduced death sentences. But she also cited recent Supreme Court rulings that banned executions of those convicted for murders committed before age 18 and of mentally impaired offenders with low IQs who meet certain criteria.

    Williamson County prosecutor John Bradley, who heads the Texas Forensic Science Commission, argues that widespread turnover in prosecution offices statewide, including in Dallas and Harris counties, likely played the greatest role in recent reductions in death sentences.

    No one disputes Texas' life-without-parole law has had another, more measurable impact.
    Welcome to ‘life row'

    Already, the 4-year-old law has created a kind of “life row” — a perpetual population of convicted killers and accomplices who can never win reductions in their sentence regardless of behavior, youth , mental deficiency or other factors. This group appears to be growing faster than death row itself.

    Texas' death row population stands at 332, TDCJ data show.

    As of Nov. 30, a total of 226 inmates were serving life without parole.

    http://www.chron.com/disp/story.mpl/...n/6788682.html

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    JURIES DECIDED THESE NINE DESERVE TO DIE

    Nine Texas men were sentenced to death in 2009:

    Jerry Martin: Walker County (tried in Leon County). Killed a 59-year-old prison guard.

    Fabian Hernandez: El Paso County. Killed ex-wife and her friend.

    Demontrell Miller: Smith County. Fatally beat his girlfriend's 2-year-old son.

    Paul Devoe: Travis County. Murdered two women as part of a six-person, two-state homicidal rampage.

    James Broadnax: Dallas County. Shot and killed two men.

    Armando Leza: Bexar County. Robbed and killed a disabled woman.

    Christian Olsen: Brazos County. Broke into a home and murdered a woman with a metal bar.

    Erick Davila: Tarrant County. Opened fire at a birthday party, killing a 5-year-old girl and her grandmother.

    Raul Cortez: Collin County. Killed a family of four in a home invasion.

    Sources: Texas Department of Criminal Justice, the Death Penalty Information Center, news reports and interviews.

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    Chief hired for state public defense office

    California defender will oversee habeas corpus writs for inmates

    Texas has hired an experienced California attorney to run its first-ever public defense office for death row appeals known as state writs of habeas corpus — considered a death row defendant's best opportunity to raise final arguments about mistakes, unheard innocence claims or misconduct.

    Brad D. Levenson, now a deputy federal public defender based in Los Angeles, will get a $1 million annual budget and small team of team of lawyers to handle a dozen or more new death cases each year across the Lone Star State.

    The office was created by the Texas Legislature after a series of scandals generated by ill-prepared and mostly poorly-paid death row defense lawyers assigned to handle writs of habeas corpus across Texas. Some filed poorly written documents filled with typos, factual errors and photocopied cookie cutter arguments. Others repeatedly blew important deadlines – forfeiting the rights of their clients to have any arguments considered by either state or federal courts before executions.

    Only 7 candidates applied for the job, said Phil Wischkaemper, an attorney who was 1 of 5 members of a special state selection committee that both included judges and defense attorneys.

    Other candidates offered more experience with Texas capital case law than Levenson, who has never lived in Texas and so far, has handled only one writ of habeas corpus on behalf of a Texas death row inmate.

    But Levenson was 1 of only 2 applicants with substantial experience in handling complex writs of habeas corpus as well as managing public defense services, Wischkaemper said.

    Death penalty cases

    For the last 5 years, Levenson has worked as a deputy public defender in the capital habeas unit of the Office of the Federal Public Defender in Los Angeles. He has handled both state and federal writs as a defense attorney and previously worked as a prosecutor on death penalty cases and other matters for the California Office of the Attorney General.

    The Texas Court of Criminal Appeals formally offered the job to Levenson last week, according to Carl Reynolds, a spokesman for the courts. His salary will be $130,000 a year.

    'Very well-qualified'


    Wischkaemper said the selection committee unanimously supported Levenson: "We thought he was very well-qualified - even though he doesn't have the Texas experience," he said. Managing the complex investigations that can result in successful writs of habeas corpus is a skill that translates well across state lines, he said.

    "The key is looking under every rock and every bush and finding out what the lawyers at trial might have missed because of negligence or because it was hidden from him purposefully," said Wischkaemper.

    In an interview, Levenson promised his new office would take an aggressive approach to re-investigating all capital cases to make sure that men and women sentenced to death in Texas receive "high quality" representation and that relevant legal arguments get presented to the courts before executions occur. Levenson said his aim was to "represent indigent defendants as if they had private attorneys."

    (source: Houston Chronicle)

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    Judge to hold hearing on death penalty law

    HOUSTON -- A judge in Houston has scheduled a hearing to listen to evidence on whether there's a substantial risk that the state's death penalty law allows for the possible execution of an innocent person.

    Prosecutors and defense attorneys said Friday that the hearing has been set for Nov. 8 and could last at least two weeks.

    The hearing was granted by State District Judge Kevin Fine, who in March ruled in a capital murder case that the Texas death penalty statute is unconstitutional. Fine later rescinded his ruling, but said he intended to hold a hearing on the issue.

    Prosecutors say they are not opposed to a hearing the looks at the constitutionality of the death penalty law, but object to any hearing that would look at whether Texas has executed an innocent person.

    http://abclocal.go.com/ktrk/story?se...rticle-7520625

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    Details on execution drugs should remain secret, prison officials say

    In a new push to keep confidential details about the drugs used in Texas executions, state prison officials are asking Attorney General Greg Abbott to declare the information a state secret.

    Details like how much of the 3 lethal drugs they keep on hand, whom the state buys the drugs from and how much taxpayers spend on them.

    Their reasoning: Making that information public might trigger violent protests outside the execution chamber in Huntsville or even embolden death penalty opponents, if they knew the state was about to run short of the drugs.

    "We submit that the release of any of the information would be akin to a local DPS office providing a requestor (a potential terrorist) with how much ammunition was stored in the office," states a letter to Abbott from Patricia Fleming, an assistant general counsel for the Texas Department of Criminal Justice.

    "As to the amounts of state money paid to the individual suppliers, if this information were to be released, the requestor could determine the amounts of the products purchased simply by consulting his neighborhood pharmacist, or pharmaceutical wholesaler or retailer."

    The latest secrecy bid was prompted by a request from the Austin American-Statesman for information about suppliers and costs of the 3-drug cocktail used to execute condemned prisoners, following news reports last month that supplies of one drug — sodium thiopental — were running low in other states and executions were being delayed.

    In years past, some of that information was released by prison officials — including that they usually kept enough drugs on hand to carry out 2 executions.

    The agency's secrecy request, the latest move by several agencies to keep information confidential from taxpayers by citing security concerns, has raised eyebrows of some prison officials who acknowledge that some of the information had been disclosed previously without question.

    But Melinda Bozarth, the prison system's general counsel, defended the request for secrecy as appropriate. "We want to err on the side of caution so that no one is put at risk, that there is not any disruption," she said.

    In Fleming's filing with Abbott, the agency outlined its case for keeping secrets. Fleming wrote that "common law privacy" exempts the information from release under the Texas Public Information Act if its release could cause someone to "face an imminent threat of physical danger."

    Fleming further argued that the release of details about the drugs could trigger violence.

    "Executions are inherently volatile events," Fleming wrote. "The rhetoric of opponents of the death penalty has become increasingly violent to the point where we not only had large crowds voicing their objections, but even had a group of militants outside the Huntsville Unit armed with various weapons, including assault rifles."

    "The TDCJ has been lucky in that those gathered or picketing outside the Huntsville Unit on a scheduled execution date have never fired weapons or even used knives; but, both of these events are very real possibilities and amount to more than a generalized and speculative fear of harassment of retribution," she continued.

    "If the (American-Statesman) published how much sodium thiopental we currently have and when it expires, this would operate to inflame an already volatile situation. People could get seriously injured or killed."

    2 other prison officials said few protestors show up for most executions and there have been no threats or violence, even arrests, in years. The officials asked not to be identified because they are not authorized to speak about security issues.

    Firearms are prohibited within 1,000 feet of the death chamber by a longtime state law.

    Several protestors carried AK-47s when condemned murderer Gary Graham, 36, was executed in June 2000. But police said at the time they could not arrest them for carrying the weapons, since state law allows Texans to openly carry such weapons as long as they do not shoot them or threaten others with them.

    On Thursday evening, as the state executed convicted killer Larry Wooten in Huntsville, 10 to 15 anti-death penalty protesters stood outside, about a block away from the prison that houses the execution chamber, according to the Associated Press. One woman used a bullhorn to say, "The state of Texas has committed another murder."

    Bozarth said that security concerns could arise at any time, though she is not aware of any new threats or issues with protestors.

    Death penalty opponents reacted to the secrecy bid with surprise and chagrin, insisting that Texans should have the right to know about all aspects of the state's execution process.

    "These are extreme and unfounded allegations against Texans who oppose the death penalty," said Kristin Houle, executive director of the Texas Coalition to Abolish the Death Penalty, noting that opponents include former governors, lawmakers, law enforcement officials and religious leaders, among others.

    Echoing that sentiment was Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, who characterized the state's arguments for secrecy are "absolutely wrong. The facts just don't support the claims they're making," she said.

    In her letter, Fleming said that the disclosure of how much Texas is paying for the drugs could compromise security by allowing outsiders to calculate how much the prison system has on hand. Even so, the agency's public Web site says that the 3 drugs cost $88.08 per execution.

    Abbott in 2008 ruled that prison officials could keep secret the identities of the companies that supply the drugs, although sodium thiopental is available from only 1 manufacturer, Hospira Inc.

    While 30 states employ the death penalty, Bozarth said Texas' concerns mirror those of officials in Ohio, whom she contacted before sending the letter to Abbott. Julie Walburn, communications director for the Ohio Department of Corrections, said her agency discloses the costs and the supplier — because Hospira is the only one — but not how much supply they have on hand.

    Like other states, Oklahoma Department of Corrections spokesman Jerry Massie said the costs are disclosed, and he's never been asked about the supplier — a pharmacy.

    "I'd sure try to (keep the supplier confidential), for obvious reasons," he said. "We don't keep a supply on hand. We just get it when we need it."

    (source: Austin American-Statesman)

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    Number of death sentences for killers in Texas declines

    Juries in Texas - the nation's most-active death penalty state - sentenced only eight killers to die this year, the lowest number since 1976 when the U.S. Supreme Court ended its ban on capital punishment. Seventeen killers were put to death in 2010, six fewer than last year for the lowest total since 2001.

    So far this year, Harris County, which typically has led the state in assessing death sentences, has condemned two convicted killers.

    The figures were released Monday in an end-of-year review of capital punishment by the Austin-based Texas Coalition to Abolish the Death Penalty. The report came just weeks after a poll by Washington, D.C.'s Death Penalty Information Center, an anti-capital punishment group, found that only a third of registered voters in death penalty states thought death is the most appropriate punishment for murder.

    "It shows that Texas and the rest of the country are moving away from the death penalty, even in Harris County. It's an astonishing development," said coalition executive director Kristin Houlé.

    Houlé attributed the drop to Texas' 2005 life without parole statute and to the high cost to counties of seeking the death sentence.

    Also eroding support for capital punishment is DNA testing, which has led to the exoneration of scores of inmates convicted of serious crimes, said Richard Dieter, the Washington, D.C., group's director.

    "It's not that (most) people are all or nothing about the death penalty," Dieter said. "They just have this growing sense of uncertainty. It's a slow wearing away of confidence ... a feeling that it is just too risky."

    Death penalty supporters, however, countered that fewer death sentences may reflect fewer killers and fewer killers who are eligible for execution.

    The Supreme Court shrank the pool of death-eligible killers by prohibiting the execution of mentally retarded offenders and those who were younger than 18 when they committed their crimes.

    Dudley Sharp, an outspoken Houston death penalty advocate, argued that drops in rape, robbery and murder have reduced the number of death-eligible criminals going to trial.

    Texas murder rates down

    "Texas murder rates have dropped about 67 percent, murders about 50 percent in Texas between 1991 and 2009," he said. "Nationally, I think that part of the reduction is due to state prosecutors knowing that judges in their state will not allow an execution to take place."

    Prosecutors also cite long-term incarceration of violent criminals and programs to lower recidivism among released prisoners. Just as important, they claim, is a high degree of frustration over death sentences that never are carried out.

    "Twenty-five years later, mothers and sons and daughters of victims are still waiting," said Scott Burns, executive director of the National Association of District Attorneys. "It's the old cliche about justice delayed is denied. ... For a number of states, the death penalty means we'll talk to you in 25 years and see where we are."

    Nationally during the last 20 years, death sentences have ranged from a high of 328 in 1994, to a low last year of little more than 100. Texas recorded an all-time high - 48 - in 1999. That total fluctuated in the ensuing decade.

    This year, Harris County juries sent Garland Harper, convicted of stabbing his girlfriend and strangling her two daughters, and Mabry Landor, convicted of killing Houston police officer Timothy Abernethy, to death row. Juries in Dallas, Brazos, Nueces, Rusk and Travis counties also sentenced killers to death

    Life without parole was added as a sentencing option in capital murder cases in late 2005. By then the decline in death sentences already had begun in Texas and elsewhere. During the heyday of capital punishment in Texas in the 1990s, it was not uncommon for Harris County to send four or five murderers to death row. In 1992, it was responsible for 10 of the state's 31 new death-row inmates. In the past three years, however, Harris County has totaled only three death sentences, and in 2009 it did not record one at all.

    Since Texas' resumption of executions in 1982, 464 killers - 115 of them from Harris County - have been put to death. Currently, 105 Harris County killers await execution.

    The next execution is scheduled for Jan. 11.

    http://www.beaumontenterprise.com/ne...xas-880345.php

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    Cuts challenge new state office for death-row appeals

    Troubled by revelations of second-rate work by court-appointed attorneys, Texas legislators in 2009 created a state office to improve appeals on behalf of death-row inmates.

    Now staffed with four lawyers and two investigators, the Office of Capital Writs is beginning work on its first cases — but it's facing an uncertain future.

    Two rounds of budget cuts have already cost the office a part-time worker and prompted remaining staffers to cut corners by supplying their own ergonomic chairs, buying office supplies and traveling on the cheap by staying with friends or declining to be repaid for meals.

    But additional budget cuts of 10 percent, likely to hit almost every state agency next year, could leave little choice but to lay off a lawyer or investigator. Such a reduction could jeopardize the agency's mission and the state's long-standing — but often broken — promise that no inmate will be executed without first getting help from a competent appeals attorney.

    Sen. Rodney Ellis, D-Houston, co-author of the bill that created the office, said he will fight to keep the agency's "shoestring" budget intact.

    "If Texas wants capital punishment, then it must pay the price to make sure that innocent people are not executed and capital trials are held in a constitutionally fair manner," Ellis said. This "is one of those prices we have to pay to keep the death penalty."

    A 10 percent cut at the Office of Capital Writs would save less than $97,000 each year, or 0.000008 percent of the projected $24 billion shortfall in 2011-12.

    But it would force the office into a difficult choice: Either lay off one employee, leaving a gaping hole in the staff, or accept fewer cases, said Director Brad Levenson. "Cutting staff is not what I want to do, but at the end of the day we have to have money for cases," he said.

    Ellis thinks he has two strong arguments for the office.

    First, it was created with the support of the governor's office, the Court of Criminal Appeals, the State Bar of Texas and deep bipartisan backing.

    Second, any case dropped by the office would be farmed out to private-practice lawyers at up to $25,000 per case. "We can do it cheaper and better, but the office must be adequately funded for them to do their job properly," Ellis said.

    But in the legislative session to begin Jan. 11, countless state agencies will be making similar pitches to save their budgets. Escaping cuts is going to be difficult for any agency. Doing so while helping death row inmates, rarely a legislative priority, would be quite a feat.

    Pattern of shoddiness

    Every Texas death sentence is followed by two appeals. The first, the direct appeal, is meant to ensure that no glaring errors were made during the inmate's trial.

    The Office of Capital Writs was created to handle the second appeal — a petition for a writ of habeas corpus, designed to reinvestigate each case to make sure the right person will be executed, the wrong person won't be, and that the verdict was obtained without violating the U.S. and Texas constitutions.

    But a 2006 American-Statesman series revealed a pattern of shoddy legal work — incomplete, incomprehensible petitions that were riddled with errors and devoid of investigation or thoughtful effort — that earned court-appointed lawyers up to $25,000 in taxpayer money to handle the habeas petitions for death-row prisoners.

    Spurred largely by those stories, the Legislature created the Office of Capital Writs in 2009 to employ specialized habeas attorneys and investigators.

    Levenson, the first hire, came from the Federal Public Defender's Office in Los Angeles, where he worked in the capital habeas unit. He also spent 11 years as a California deputy attorney general, gaining insight into a prosecutor's mind-set that is not normally available to defense lawyers.

    "We were very impressed with his background \u2026 on both sides of the bar," said Judge Cathy Cochran of the Court of Criminal Appeals, which hired Levenson. "He came with a lot of ideas — how he would put the office together and how he would reach out to the defense bar, judges and prosecutors in getting the job done smoothly and fairly to all sides."

    Levenson runs the Texas office on a public-defender model that stresses efficiency and economy. Instead of specializing, his two investigators examine both aspects of a capital punishment trial:

    • Guilt-innocence, where issues such as blood-splatter evidence and eyewitness identifications must be examined.

    • Mitigation, where jurors hear about mental disorders, childhood abuse or other factors that may persuade them to choose life in prison instead of execution.

    Each lawyer also is expected to investigate by visiting the crime scene and meeting key witnesses, family members and trial attorneys.

    It's the kind of legal work the Legislature had in mind in 1995 when it moved to speed the pace of executions by limiting death-row inmates to one habeas petition. In return, Texas promised to provide a competent habeas lawyer at state expense.

    Some inmates got just that, but the list of state-approved habeas lawyers also included those who were poorly trained, unmotivated or too busy to do the job right, the Statesman found.

    'We can do better'

    Far from routine appellate work, habeas is a complicated, fast-changing area of law that favors specialists, Levenson said.

    "It's not a place to learn," he said. "I believe we can do this work better than it's been done."

    Levenson's agency, which opened in October in a generic Northeast Austin office park, has started on its first five cases. Several more are expected to arrive in January and February. Levenson figures the office can handle about 20 cases at a time — five petitions per attorney.

    With death sentences on the decline thanks to the option of life in prison without parole, he supposed it would take several years before anyone had to worry about cases being turned away. But that limit may be reached much sooner if a 10 percent cut is added to the $75,000 the agency already lost this year, Levenson said.

    At that point, district judges would fall back on the old system, choosing an outside lawyer from a list of approved habeas practitioners maintained by the state's nine regional presiding judges. Most lawyers identified by the American-Statesman as having provided questionable habeas work have been cut from the list — but not all of them.

    That situation adds extra incentive for Ellis to find a solution in the upcoming legislative session.

    "I'm going to do my best," he said. "With the cost of legal services going up and government funds scarce, you're going to be even more apt to get a weaker court-appointed attorney."

    http://www.statesman.com/news/texas-...58.html?page=2

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    Ellis works to halt wrongful convictions
    Legislator says judicial reforms are widely supported


    AUSTIN — In the decade since state lawmakers last addressed wrongful convictions, Texas has earned the distinction of having the highest number of exonerations based on DNA evidence in the nation.

    At least 42 men from a dozen Texas counties have leveled successful DNA challenges to their convictions, according to the Innocence Project of Texas.

    In light of that, Sen. Rodney Ellis, D-Houston, is hoping a fresh move toward criminal justice reform will elbow its way to the forefront in a session jammed with a massive budget shortfall, redistricting and a raft of contentious measures, such as voter ID and anti-illegal immigration legislation.

    Ellis is proposing an "Innocence Protection Package," four bills aimed at decreasing the number of wrongful convictions in Texas. Rep. Pete Gallego, D-Alpine, is the package's sponsor in the House.

    "I tried to pick things that I thought were very much in the mainstream of criminal justice reforms that shouldn't cost money, that will save money," Ellis said. "They've been well-vetted and (have) broad-based support."

    State lawmakers in 2009 created a panel to examine the issue of wrongful convictions and propose reforms. After a year-long investigation, the 11-member panel of legislators, judges and legal groups last August recommended changes for the 82nd Legislature.

    Ellis' bills include many of the panel's suggestions, including uniform procedures for eyewitness identification, requiring investigators to record interrogations in serious felonies, streamlining defendants' appeals for DNA testing, and reorganizing Texas' indigent defense task force.

    The eyewitness ID and DNA testing bills passed the Senate last session, but stalled in the House.

    In 85 percent of exoneration cases, mistaken eyewitness identification sealed the defendants' guilt, according to the Innocence Project of Texas. In many counties, no uniform or documented eyewitness policies exist, the group said.

    Under Ellis' bill, law enforcement agencies would have to develop written procedures for using suspects' photographs in line-ups and conducting live line-ups.
    GOP opposition unlikely

    Rep. Jerry Madden, R-Plano, who served on the House Criminal Jurisprudence Committee last session, said he could not see a GOP effort to block Ellis' bills if they are in line with recommendations from the Texas Criminal Justice Integrity Unit, which Judge Barbara Hervey, of the Texas Court of Criminal Appeals, launched in 2008.

    The unit includes Hervey, Ellis and reform advocates, including Jim Bethke, director of the Taskforce on Indigent Defense, and Barry Scheck, director of the New York-based Innocence Project.

    "I have pretty good confidence that some of those things will move forward and would be passed," Madden said. "If they're different, they'd have to be looked at."

    Dudley Sharp, a death penalty advocate and founder of Justice Matters, said anti-death penalty activists inflate the number of innocence claims to create a sense of urgency to pass the bills.

    "How much of an innocence problem do we really have in this state?" Sharp said. "Before we do legislation, I would like to have identified how much of a problem this is, really?"

    He said innocence advocates do not separate the number of actually innocent exonerees — meaning they had no connection to the crime - and those who are released based on a legal technicality or error.

    Ellis' bill to require police to record interrogations also raises concerns about what evidence prosecutors will be allowed to use in court, Sharp said.

    "Sometimes it's a lot easier to get a confession from somebody at the scene or right when you arrest them, where they're emotional, they'll waive their rights, and they'll confess," he said. "There has to be a provision whereby all of that stuff can still come in, and a judge can weigh the credibility of allowing it into trial. You can't just exclude them."


    A former House member said the bills' sponsors now face a heightened impetus to build coalitions that can compete with a crowded session.

    "You have a very full agenda when you take into account the budget, redistricting, immigration bills and all of the sunset issues and bills, some of which will carry forward from two years ago," said Sherri Greenberg, a professor at UT's Lyndon B. Johnson School of Public Affairs.

    http://www.chron.com/disp/story.mpl/...n/7412163.html

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