America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Texas: DNA evidence to be analyzed again in death penalty case appeal

A lawyer for Steven Thomas, who faces the death penalty after being convicted of capital murder in Williamson County, says some of the DNA evidence presented at the trial was false, according to court documents. A district judge approved payments this month for the lawyer to hire a DNA analyst and a fingerprint analyst to review the evidence in Thomas' case, court orders showed.

Thomas was convicted Oct. 31, 2014, in the death of 73-year-old Mildred McKinney, who was beaten, sexually assaulted and strangled at her Williamson County home in 1980. He was 56 when he was convicted. He was arrested in 2012 after DNA he was required to provide for a federal drug charge matched DNA found at the crime scene.

A DNA analyst from the Texas Department of Public Safety testified at Thomas' trial that his sperm was found on a ribbon wrapped around one of McKinney's thumbs. Thomas' fingerprint also was found on a clock at McKinney's home, according to another DPS analyst.

Thomas, who worked for a pesticide service that had been to McKinney's house, appealed his case in January 2015 to the Texas Court of Criminal Appeals, where it is pending.

As part of the appeal, 1 of Thomas' attorneys, Joanne Heisey, filed requests with Williamson County's 26th District Court in November requesting money to hire a DNA analyst and a latent print examiner. Latent fingerprints - such as the one prosecutors said Thomas left on the clock - aren't visible to the eye but are left behind by oils or perspiration on a finger.

"Mr. Thomas's trial counsel did not seek expert assistance to independently review any of the forensic evidence the State used to convict him," the requests said. "A preliminary review of the DNA evidence presented at Mr. Thomas' trial indicates that at least some of that evidence was false."

Recent research, the requests said, "has called into question the reliability of various forensic methods, including latent fingerprint analysis." The research shows that latent fingerprint analysis has a false positive rate that could be "as high as 1 error in 18 cases," the requests said.

A lawyer who works with Heisey said their office had no comment about the case. Lytza Rojas, a former prosecutor involved in Thomas' trial, didn't return requests for comment last week. Williamson County District Attorney Shawn Dick said Thursday he couldn't comment on pending litigation.

State District Judge Donna King on Jan. 3 approved Heisey's requests to hire a DNA analyst for $5,500 and a fingerprint analyst for $3,000, according to court orders. Under state law, Williamson County will be repaid by the state for the expenses, according to the requests filed by Thomas' lawyer.

Another one of Thomas' lawyers, Ariel Payan, said in his appeal to the Court of Criminal Appeals in August that the evidence presented at the trial showed McKinney was killed by more than one person. No evidence at the trial showed Thomas had killed McKinney or helped commit any other crime against her, Payan said.

Evidence at the trial showed that a throat swab taken from McKinney's autopsy showed male DNA that didn't belong to Thomas and also ruled out other suspects in the case, including serial killer Henry Lee Lucas and his partner Ottis Toole. The ribbon wrapped around one of McKinney's thumbs not only had DNA on it from Thomas but also from an unknown man, according to a DNA analyst who testified at the trial.

Source: Austin American-Statesman, January 15, 2017

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