The Texas Death House

Part 2: The Court of No Appeals

Revolutionary Worker #1063, July 23, 2000

The U.S. machinery that sends people to death row is grossly unjust and racist. And the State of Texas is this system's busiest executioner. Since the death penalty was reinstated in 1976, Texas has executed 218 men and women, far more than any other state and about a third of the country's total.

Texas has the second-largest death row population in the country. Second only to California, which has of 568, Texas currently has 457 prisoners on death row. More than 200 of these prisoners were condemned since 1995, when George W. Bush became governor. 40% of the prisoners on Texas death row are African-American, 22% are Latino.

The Chicago Tribune (June 11-12, 2000) recently did an investigation which looked at the cases of 131 people who had been executed while Bush has been governor. This was before the execution of Shaka Sankofa on June 22.

The study found that Texas has executed dozens of death row inmates who clearly did not receive fair trials. The Tribune examined trial transcripts, legal briefs, appellate rulings and lawyer disciplinary records and interviewed dozens of witnesses, lawyers and judges. Bush has publicly claimed that none of the people executed while he has been governor have been innocent.

Last week the RW looked at how defendants are systematically railroaded onto death row. According to the Tribune investigation:

Defense attorneys in 40 cases presented no evidence whatsoever or only one witness during the trial's sentencing phase.

In 29 cases, a psychiatrist gave testimony that the American Psychiatric Association has condemned as unethical and untrustworthy.

In 43 cases, or one third, a defendant was represented at trial or on initial appeal by an attorney who had been or was later disbarred, suspended or otherwise sanctioned.

In at least 23 cases, the prosecution's evidence at trial or sentencing included a jailhouse informant - testimony that is highly unreliable.

In at least 23 cases, the prosecution presented a visual comparison of hairs - evidence that is extremely inexact.

This article looks at how death row prisoners are systematically denied a fair appeal.

*****

The Court of Criminal Appeals is the court of last resort in Texas. But as the Chicago Tribune investigation found, this court hardly ensures that convicted defendants receive a fair hearing on appeal.

Since Bush became the governor of Texas in 1995, the Court of Criminal Appeals has given new trials to only eight death row prisoners and only six condemned have been given new sentences. Over this same period, the court has upheld 270 death penalty convictions.

Six defendants who were executed under Bush were granted new trials by the court because of fundamental violations of their rights. But in these cases, the court later changed its mind and reinstated the conviction.

FLAKEY LAWYERS

In a death row prisoner's final appeal, known as a writ of habeas corpus, attorneys are supposed to be able to go beyond the original trial and investigate new evidence. And they can argue that prosecutors improperly concealed evidence that might have helped the defendant prove his/her innocence.

Before 1995, death row inmates trying to appeal their convictions often had to rely on lawyers willing to work for little or no pay. Then in 1995 a new Texas law - aimed at accelerating executions - collapsed the layers of appeal and set strict deadlines for filing appeals. The state agreed to pay for court-appointed attorneys to handle final appeals for death row inmates - with the Court of Criminal Appeals assigned to make these appointments.

Texas' Court of Criminal Appeals has assigned attorneys for death row appeals in about 300 cases. And a significant number of these lawyers - who have been assigned to defend prisoners facing death - have been incompetent and inexperienced.

The Tribune investigation found that in the cases of at least eight death row inmates, the court picked an attorney who had been cited for misconduct by the State Bar of Texas. Four of these lawyers had been disciplined more than once - one of them was still on probation! The misconduct included failing to show up in court, lying to the State Bar of Texas or to a judge, and dismissing a client's legal claim without the client's permission or knowledge.

In 1995, Attorney David K. Chapman received a probated suspension - which allows him to continue practicing law - for neglecting the legal matters of clients. Then in 1996, Chapman was given a probated suspension for four years because he failed to withdraw from a case even after, according to court records, his "mental or psychological condition materially impaired his fitness to represent his client." This questionable record didn't stop the court, in 1997, from appointing Chapman to represent death row inmate Leonard Rojas. Nine days after being appointed to handle Rojas' final appeals, Chapman was given yet another probated suspension.

Other lawyers appointed by the Court of Criminal Appeals didn't have any official record of misconduct. But some of them were incompetent or very inexperienced and made crucial mistakes in how they handled their client's death row appeal.

Robert McGlohon, a former briefing attorney for one of the judges on the appeals court, had been a lawyer for less than three years when he was appointed in April 1996, to handle Ricky Kerr's state habeas corpus petition. McGlohon filed only one claim - a perfunctory challenge to the law itself - rather than raise substantive issues that might have entitled Kerr to a new trial. That, according to Texas law, meant Kerr forfeited the right to raise other issues later.

The court, while noting how thin McGlohon's petition was, denied Kerr's appeal. Kerr wrote to the court and asked for another lawyer and a new appeal, but the court turned him away.

When another attorney heard about Kerr's plight, he tracked down McGlohon and obtained a sworn affidavit in which McGlohon admitted, "It may be that I was not competent to represent Mr. Kerr." He blamed a lack of experience and health problems. Prosecutors told the court they would not oppose Kerr's motion for a new lawyer. But the court responded with a two paragraph denial. One dissenting judge, Morris Overstreet, said the court had made a "farce and travesty" of Kerr's rights. He said that if Kerr were executed, the court would "have blood on its hands." Overstreet stated, "By this dissent, I wash my hands of such repugnance."

Two days from his scheduled death by lethal injection, Kerr was granted a stay of execution by a federal judge. He remains on death row and is continuing to appeal his case.

Before the state started paying court-appointed appeals lawyers in 1995, many experienced defense attorneys refused to pursue appointments because the caps on payment were so low - $7,500 at the program's outset.

Many lawyers who have accepted court appointments have been accused by experienced appellate attorneys of doing slipshod work and of being ill-equipped to tackle such difficult cases. Some of these court-appointed lawyers admit they didn't do a good job of pursuing an appeal, while other say they weren't given the help they needed.

Erika Copeland didn't have experience or resources when she represented death row prisoner James Clayton, who was convicted of the 1987 murder of a teacher in Abilene. By the time Clayton was executed in May 2000, his case had never been fully investigated.

Copeland said, "I don't know what could have been investigated. I don't know what else I could have done. But that's only because I knew so little I really feel like I greased the wheels for his execution."

Last year, Texas again shifted how attorneys are appointed for a death row inmate's final appeals. Now, local judges appoint attorneys using a list of candidates approved by the Court of Criminal Appeals. The court's current list of more than 100 attorneys includes four attorneys who have been sanctioned for various forms of misconduct.

DISTRICT COURT OF NO APPEALS

The Texas Court of Criminal Appeals includes many conservative judges who, as candidates to the court, went to great lengths to sell their "tough on crime," law-and-order credentials.

Judge Stephen Mansfield criticized the court for reversing convictions based on what he called "technicalities." And he was elected to the court in 1994, even though he lied during his campaign about his background. Mansfield had once been fined in Florida for practicing law without a license and claimed he was a Texas native with extensive experience in criminal law. In reality, Mansfield was born in Massachusetts and his experience was chiefly handling insurance litigation. Mansfield's lie was exposed before the election, but he won anyway. The State Bar of Texas reprimanded him. Then in 1998 he was arrested outside a University of Texas football game for scalping tickets - after he had been warned by a police officer to stop.

Sharon Keller, a former Dallas County appellate prosecutor with no judicial experience, joined the state's highest criminal court in the same month that Bush became governor.

Keller, who sells herself as a tough-on-crime conservative, is now in a position to become the presiding judge of the court. She won the Republican primary for the position in April and will most likely succeed the current presiding judge, Michael McCormick.

Since 1995, in the eight death row cases where the court has granted a new trial, Keller has joined a bloc of judges voting to deny relief six times. Those six cases were reversed for a number of reasons, including misconduct by police and prosecutors. The argument to deny a new trial generally maintained there was no error at all, or if there was error, it should be deemed harmless.

Ray Criner was sentenced to 99 years for the rape a 16-year-old girl who was found dead in Montgomery County. Criner insists he is innocent and murder charges were dropped against him for lack of evidence. But the prosecution pursued a sexual assault charge on the basis of three witnesses who said that Criner had told them about picking up a young hitchhiker and forcing her to have sex.

At Criner's trial in 1980, the prosecution said that Criner had acted alone and that Criner's blood type was consistent with the semen found inside the victim's body. But sophisticated DNA tests later showed the semen wasn't Criner's.

By a 5-3 vote in 1998 - with one judge abstaining-the Court of Criminal Appeals said the DNA results didn't warrant a hearing on Criner's claim of innocence. Sharon Keller, writing for the court, agreed with the prosecution's theory that Criner may have worn a condom or not ejaculated. When Keller was interviewed for a PBS "Frontline" documentary, she said there was a "possibility" that Criner was innocent. But she said that wasn't enough to grant Criner a new hearing.

Marshall, who sided with the majority in denying Criner a hearing told the Tribune that he voted "the wrong way" and that if another vote were cast, he would change his vote. He said he reached this conclusion after watching the "Frontline" documentary, reviewing briefs and considering the case at some length.

Cesar Fierro was a laborer who was born in Juarez and grew up on both sides of the border. In 1979, five months after a taxi driver was murdered in El Paso, 16-year-old Gerado Olague went to police and said Fierro had done the crime. Before this, nothing had linked Fierro to the death of the taxi driver.

Police had, in fact, arrested two other men for the murder. But prosecutors did not try them. One witness told police he saw one of these suspects leave the taxi after the murder. Another witness said he saw both suspects in the taxi driver's cab on the morning of the murder and that one suspect was driving the cab.

Fierro was convicted based on Olague's testimony and what the police say is his own confession. And what was this so-called "confession?"

Fierro says that after he was arrested, local police told him that his parents were being held hostage in Mexico by Juarez detectives. As proof, El Paso detectives showed Fierro two letters that he and a brother had written to their mother and had been passed along by Juarez police. Fierro says the police threatened to torture his stepfather with electrical current from a generator attached to his genitals. In the face of this, Fierro said he signed a statement a detective put in front of him. In a recent interview from death row in Livingston, Fierro said, "He told me if I signed, then they'd let them go and if not, they were going to torture them."

Fierro's "confession" was clearly coerced but he was convicted anyway and given the death penalty. A judge later recommended that Fierro get a new trial. And the Court of Criminal Appeals, Texas' highest criminal court, admitted that Fierro's rights were violated and that the police committed perjury. But the court still refused to grant Fierro a new trial. The majority on the nine-member court ruled that the violation of his rights was "harmless."

More than 10 years after Fierro was convicted, a District Court Judge ruled that there was a "strong likelihood" Fierro's confession was coerced and that he should get a new trial.

The assistant district attorney who originally prosecuted Fierro, said in a sworn affidavit that he believed that El Paso and Juarez detectives had "colluded to coerce Fierro's confession" - and that he would not have prosecuted Fierro on Olague's word alone.

Olague's testimony at the trial was full of inconsistencies. The judge even instructed jurors that they could treat him as an accomplice - and therefore view his testimony with skepticism, since such a witness has motive to lie and downplay his own role in a crime.

The Texas attorney general's office, which was handling the appeal for the prosecution, argued that Fierro should not be allowed to keep arguing for a new trial based on the "confession" because, after 20 years of appeals, "the state's interest in finality is overwhelming."

On a 5-4 vote, Fierro's appeal was denied by the Criminal Court of appeals. Sharon Keller wrote the majority opinion, saying the court believed Fierro would have been convicted even without a confession, based upon Olague's testimony.

NO JUSTICE FOR SHAKA

Shaka Sankofa (formerly known as Gary Graham) is the latest man in Texas to never get a fair trial and then have his appeals refused by the Texas Criminal Court of Appeals.

Shaka was convicted for murder and sent to death row when he was only a teenager. In prison, he became a revolutionary - politically conscious and aware of the many injustices in society.

At Shaka's trial, his court-appointed lawyer was totally incompetent and worked from the assumption that Shaka was guilty. He told his private investigator he didn't need to do much work. He hardly challenged the prosecution's flimsy case which relied on only one eye witness, Bernadine Skillern, who caught a glimpse of the shooter from about 35 feet away in a poorly lit parking lot.

Shaka's appeal lawyers found new witnesses who were in the parking lot where the shooting took place and are certain that Shaka wasn't the murderer. Shaka's defense lawyers also argued that the police coached Skillern's testimony. Skillern did not identify Shaka from a group of photos she initially was shown and her original description of the shooter did not match Shaka. The gun that Shaka had when he was arrested did not match the weapon that was used in the shooting and there was no physical evidence linking Shaka to the crime.

Despite all this, Shaka's appeals were rejected by all the appeals courts. One attorney told The New York Times: "Gary Graham's case lies on the fault line of the Texas death penalty system. He had abysmal trial counsel, who failed to present stark evidence of his innocence based on exonerating eyewitnesses and forensics evidence. Thereafter, when this evidence was discovered, the courts all decided that this evidence was presented too late to be heard."

In 1999, a federal court ruled that Shaka's habeas corpus petition was barred by the EDPA (the Effective Death Penalty Act), despite the fact that his appeal was filed before the EDPA was passed into law. On May 1 the U.S. Supreme Court refused to hear Shaka's appeal, In doing so, the Supreme Court let stand the decision of the lower court that the EDPA did apply to Shaka's case. The court refused to hear new evidence because it was available at the time of the original trial - in spite of the fact that Shaka's lawyer never presented it! Then Governor Bush signed a death warrant and Shaka was executed on June 22.

GOVERNOR OF DEATH

As governor of Texas, George W. Bush has the final say on whether a death sentence is carried out. He can grant clemency - life in prison - upon the recommendation of the Texas Board of Pardons and Paroles or grant a one-time 30-day reprieve. He also can order the Board of Pardons and Paroles to conduct additional investigation of a case. The board has 18 members, all appointed by Bush. It doesn't hold any public meetings while reviewing cases. It votes by fax and doesn't give any reasons for their life and (mostly) death decisions.

Mainly Bush has given the green light for death. And since he took office he has signed off on 135 executions- about one execution every two weeks. Almost all of these 135 people were poor and represented by a court-appointed lawyer. In Texas, prosecutors in death penalty cases routinely outspend court-appointed attorneys by 20 to 1.

Bush has opposed any bill that might slow the pace of executions. He opposed a bill last year that would have forbidden executing retarded people. Right after he took office the Texas legislature pushed through a bill to shorten death-row appeals and Bush signed the new law in June 1995. He announced, "Murderers who are sentenced to death will no longer be able to endlessly delay justice." That law has cut short many death-row appeals.

*****

Texas executions take place in Huntsville at the Walls Unit. Odell Barnes was scheduled to be executed by lethal injection here on March 1. His guilt in a 1989 murder had been questioned after his appeals lawyer discovered that blood evidence used to convict him may have been planted.

As Barnes was about to be strapped down, the prison warden received a phone call from someone in Barnes' hometown of Wichita Falls. Barnes' old friend, Johnny Ray Humphries was rumored to be confessing to the crime.

Humphries says that at that moment, while Barnes was being strapped down in the death chamber, Humphries received a call from the prosecutor in the case, Barry Macha. "Hold on just a minute Johnny Ray," Macha told him. Then Macha came back on the line: "Forget all about it. We just killed him."

In a 1996 interview, Shaka Sankofa exposed the gross injustices of the U.S. death penalty and said: "The only way to deal with it in a significant way and in a quantitative way is to deal with it where we begin to attack the whole system. We don't want reforms; we're beyond that. There is no such thing in our minds as a just or humane clemency process which leads to execution. We want the whole process eliminated, we want the whole process stopped."


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