"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Friday, October 7, 2016

Texas judge confronts 'serious deficiencies' in death penalty cases

The Walls Unit, Huntsville, Texas
The Walls Unit, Huntsville, Texas
The state broke its longest streak without an execution. But the highest criminal court has issued multiple late stays - and the legal process may be changing

At the time, in the state that executes more people than any other, it was hardly surprising that Barney Fuller was sentenced to die.

On 1 January 2001, Fuller phoned Annette Copeland, a neighbour in the tiny Texas town of Lovelady, a hundred miles north of Houston. "Happy New Year," he told her. "I'm going to kill you."

2 years later, he did. A dispute that stemmed from Fuller's habit of annoying his neighbours by firing weapons at his home escalated into a murderous rampage that took the life of Annette and her husband, Nathan.

In the 911 call that Annette Copeland made at about 1.30am that May night, the operator heard a man saying: "Party's over, bitch." Then a popping sound; presumably 1 of the 3 pistol shots that Fuller fired into her head.

Fuller was executed by lethal injection on Wednesday night; there are another 253 inmates on Texas's death row and 2 more men are scheduled to die on the gurney at the state penitentiary later this year. But the 58-year-old's death broke a remarkable streak: it was the 1st Texas execution in 6 months.

That was the longest run without a judicial killing since 2007-08, when executions stopped nationwide while the US supreme court considered whether the lethal injection method violated the constitution. When Texas resumed in June 2008, 18 inmates died in the space of 5 months.

Less than a decade later, with a Pew survey suggesting public support for capital punishment is the lowest it has been in more than 40 years, both giving death sentences and completing them are on the decline in Texas, like elsewhere in the country. In 2015, Texas executed 13 prisoners; Fuller's death brings this year's total to 7 so far. Only 5 new inmates have been added to death row in 2016 and 2015, compared with 20 in the 2 years prior.

And though traditionally unmoved by the pleas of those on death row, the state's highest criminal court, the Texas court of criminal appeals, has issued multiple late stays of execution - 3 in August alone.

Meanwhile one of the court's judges, Elsa Alcala, has drawn attention for writing opinions questioning the state's process, including 1 in June that said it has "serious deficiencies" that have "caused me great concern".

Like 8 of the 9 judges, Alcala is a Republican. She was appointed in 2011 by former governor Rick Perry - dubbed the "killingest" governor in modern history for presiding over 279 executions in 14 years. Despite her misgivings, Alcala has not advocated for or against the death penalty overall.

She worries that inmates have been convicted and died as a result of the poor quality of their lawyers at trial and during appeals, and because bad evidence was taken seriously. "These things are coming to light - but I wonder about how many cases have not come to light," she said last month during a panel discussion at the Texas Tribune Festival.

There, Alcala floated "legislative fixes that wouldn't cost a dime", such as forbidding the execution of the severely mentally ill, disallowing the testimony of co-conspirators who cut deals with prosecutors, and no longer asking juries to decide whether a defendant is a continuing danger "to society" given that Texas now allows an alternative sentence of life without parole.

Last year the Texas legislature passed a law requiring a defendant's most recent attorney to be notified when an execution date is set. It was a progressive move according to Kathryn Kase, executive director of the Texas Defender Service, a not-for-profit group that helps clients facing the death penalty.

Kase represents Scott Panetti, a mentally ill man who represented himself at trial dressed as a cowboy and tried to subpoena Jesus Christ, John F Kennedy and the pope.

In fall 2014, Kase discovered that Panetti was scheduled to die in a little over a month when she read about it in a local newspaper. That sent her scrambling to argue that his lethal injection should be put on hold. It was, on the day he was due to die - but by a federal appeals court, after the Texas court of criminal appeals voted 6-3 to reject a stay. That prompted one of its members, the now-retired Tom Price, to write a dissent calling for the abolition of the death penalty.

40 years on since the supreme court reinstated capital punishment in the US, Kase believes the system is "as imperfect as ever". But, she said, "all the players have become sensitized to all the reasons that executions might be unjust," and when restored to its full nine members, the court might before long be ready to take up the issue of whether capital punishment violates the constitution.

"These are clues that the body politic is changing its mind," she said. "The tea leaves have become very interesting."

Alcala tracks her own evolution since first becoming involved in death penalty cases as a young lawyer.

She was a prosecutor for 9 years in Harris County, which by itself has accounted for more executions than any other state except Texas. With colleagues, she tried 3 capital punishment cases; 2 resulted in death sentences. One was handed down to a 17-year-old and was commuted to life after the US supreme court banned the execution of juveniles in 2005.

"I was in my late 20s or early 30s when I was trying those, single, didn't have kids. Nowadays I think of the execution of a 17-year-old as barbaric. But back then I guess it just wasn't in my zone of reference," she told the Guardian.

"I think that we learn with time and we evolve in our thinking and what we would have found acceptable 20, 25 years ago, may not be acceptable, probably isn't acceptable, in many instances, today."

The US supreme court on Wednesday heard oral arguments in the case of Duane Buck, a convicted murderer sentenced to death after a Texas jury heard a so-called expert testify that being black increased his "future dangerousness". Astonishingly, the "expert" was called by Buck's defence lawyers.

While Alcala said the recent spate of stays is a result of various issues, she thinks one likely factor is "that we have better lawyers coming in ... When I first got on the court we would have executions come up and there was really a defendant without any kind of representation, or active representation."

For now, there are still "leaps and bounds to go to get to where I feel comfortable [with how] Texas is handling death penalty cases," Alcala said in the discussion. "I think it's working better than it used to, and maybe that's not saying a whole lot."

Source: The Guardian, October 6, 2016

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