Texas Defender Service: The six best arguments against the death penalty in Texas

The following guest blog post was written by Andrea Keilen, Executive Director of Texas Defender Service. Her e-mail address isakeilen@texasdefender.org.
This week, U.S. Supreme Court Justice Stevens published an essay detailing the Court’s decisions that created a system infected with problems, and one he now believes is unconstitutional. Since 1976, 138 people have been exonerated from death row nationwide.

Twelve of them were in Texas.

The fact that some mistakes were discovered in time and innocent people were exonerated strongly suggests that there have been other occasions when mistakes were not discovered in time and innocent people were executed.

Beginning Monday, December 6, at a hearing next week in a Harris County District Court, expert witnesses will testify about the numerous flaws that leave Texas’ system riddled with errors, inherently unreliable, and unconstitutional as applied. Read the motion here .

Attorneys for John Green, who is charged with capital murder, will urge the court to rule the Texas death penalty statute unconstitutional because it creates an unacceptable risk that innocent people have been, and will be, wrongfully convicted and executed.

When innocent people are exonerated, it is often a matter of dumb luck . For example, the real killer confesses or pro bono law firms take an interest in the case. It is rarely because the system catches errors and corrects itself.

Both Ernest Ray Willis and Cameron Todd Willingham were convicted of murder by arson and sentenced to death on the basis of junk fire science. Mr. Willingham is dead and Mr. Willis is alive — and free — because a pro bono law firm took Mr. Willis’ case.

At the hearing, witnesses will testify about the following factors, which taken together, create an unacceptable risk of wrongful conviction in capital cases:

First, Texas has no standards to ensure that eyewitness testimony is obtained in ways that protect against the risk of mistaken identification.
Texas does not follow the scientific research or best practices on eyewitness identification recommended by the U.S. Department of Justice , the International Association of Chiefs of Police, or the ABA. Nationwide, more than 75% of individuals exonerated by DNA evidence were convicted because of faulty eyewitness identifications .

Second, Texas allows the introduction of confessions that have been obtained without safeguards to protect against false confessions.
Texas law does not require recording interrogations . Twenty-five percent of the exonerations in the U.S. revealed through DNA testing involved a false confession .

Third, use of informant testimony is largely unregulated in Texas.
Although in 2009 Texas began to require corroborating evidence for jailhouse informant testimony, that standard is loosely defined. Further,Texas has not implemented other important safeguards involving greater transparency and pretrial reliability screenings which more fully protect against false testimony. In one study, nearly 50% of wrongful murder convictions involved perjury by a jailhouse snitch or another witness who stood to gain from false testimony. (Professor Gross study, p. 39)

Fourth, pervasive flaws have been identified in the analysis of presentation of forensic evidence that result in unreliable results.
In a study of DNA exonerations , the prosecution provided invalid forensic testimony in 60% of the cases, that is, testimony that misstated the data or was not supported by the data. (Garrett and Neufeld, p. 41) TheNational Academy of Sciences recently issued a broad critique of the nation’s forensic system. The risk of wrongful conviction due to faulty forensic science at the is, standing alone, constitutionally intolerable.

Fifth, pretrial discovery procedures are inadequate to safeguard against the prosecution’s suppression of evidence favorable to the accused.
A survey of published capital cases in Texas documented state misconduct in 41 capital convictions. (Texas Defender Service, p. 48)

Sixth, Texas prosecutors in Harris County and elsewhere have a shameful history of excluding African Americans from juries.
Although this practice has been illegal for more than a century, recent research shows that discrimination in jury selection increases the risk of wrongful convictions by reducing the thoroughness and accuracy of jury deliberations.

Texas routinely fails to provide competent counsel and adequate defense funding in state habeas corpus proceedings. Extensive research, and a State Bar Task Force have all reached this conclusion. In almost 40% of state habeas cases, the petitions did not include any materials beyond the existing record, a clear indication of a lack of investigation.

The Texas clemency procedure lacks most elements of a sufficient clemency review and fails in its role as the last safeguard against executing the innocent. For example, Claude Jones was executed in 2000 based on false evidence. During the clemency review, then-Governor Bush was not informed that Mr. Jones had requested DNA testing that might have exonerated him. Ten years after Mr. Jones’ execution, a DNA test showed that the hair sample at the crime scene was not his.

All three branches of Texas government have created entities to review issues in the criminal justice system based on the risk of error:



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