Texas

Texas

Prosecutors Accept Life Plea by Severely Mentally Ill Man in Killing of Texas Sheriff's Deputy

Texas prosecutors have dropped their pursuit of the death penalty against a severely mentally ill capital defendant charged with what they characterized as the "ambush murder" of a Harris County sheriff’s deputy. Special prosecutor Brett Ligon (pictured, left)—the Montgomery County District Attorney who was handling the prosecution because Houston prosecutors had a conflict that prevented them from participating in the case—announced on September 13 that he had agreed to a plea deal in which Shannon Miles (pictured, right) would be sentenced to life without possibility of parole in the killing of Sheriff’s Deputy Darren Goforth. Miles’s lawyers say that he has schizophrenia and episodic psychosis when he is not on psychiatric medication, that he has no memory of the murder, and that they intended to pursue an insanity defense in the case. In 2012, the trial court had declared Miles incompetent to be tried. In March of 2017, after treatment at a state mental hospital that had been delayed by a shortage of available beds, the court found Miles competent to stand trial. In explaining the plea deal, Ligon said "[t]he state's experts all came to the same conclusion, the likelihood of executing a mentally incompetent man was almost zero."  The victim’s widow, Kathleen Goforth, said she supported to deal because her two children “have been spared” the ordeal of extended death-penalty proceedings. She said, “They will not have the backdrop of their lives, for the next 10 to 25 years, being court dates, trials and appeals…. They won't have that inflicted upon them and that is merciful. It's compassionate and it's the right thing to do." Harris County Sheriff Ed Gonzalez and Donald Cuevas, president of the Harris County Deputies Organization, said justice had been served by the plea deal. The plea had been entered against the backdrop of an emerging sex scandal. The sole grounds on which prosecutors could seek the death penalty in the case was if Officer Goforth had been killed in the performance of his duties. However, evidence had come to light that Goforth was at the gas station to meet his mistress, who was a witness to the murder and would be called upon to testify in the case. Two sheriff’s officers—one who was assigned to investigate the case—had been fired for having sexual relations with the woman, and a third had been fired for sending her an email soliciting sex. The Goforth murder once again focused attention on the role of mental illness in premeditated murders of police officers. In July 2016, in unrelated incidents, mentally ill Gulf War veterans who exhibited symptoms of Posttraumatic Stress Disorder fatally shot five police officers in Dallas, Texas and three in Baton Rouge, Louisiana. In July 2015, a Washington jury sentenced a mentally ill and delusional capital defendant, Christopher Monfort, to life without parole for the ambush murder of a Seattle police officer.

Texas Execution Stayed to Permit Proper Consideration of Intellectual Disability Claim

A Texas appeals court has stayed the August 30 execution of Steven Long (pictured) to provide him an opportunity to litigate a claim that he is ineligible for the death penalty because of intellectual disability. On August 21, the Texas Court of Criminal Appeals issued the stay and remanded Long's case to a Dallas County trial court, directing the court to reconsider his claim of intellectual disability in light of the U.S. Supreme Court's March 2017 ruling in Moore v. Texas. The Texas courts had previously rejected Long's intellectual disability claim, but had applied an overly harsh definition of intellectual disability that was declared unconstitutional in Moore. Long was convicted and sentenced to death in Dallas for the rape and murder of an 11-year-old girl in 2005. Although the U.S. Supreme Court had ruled in Atkins v. Virginia in 2002 that it was unconstitutional to apply the death penalty to a person with Intellectual Disability—then known as mental retardation—and had previously ruled in a Texas case in 1989 that juries must consider a defendant's mental retardation as a potential basis to spare his or her life, Long's trial lawyer did not have him evaluated for mental retardation. In May 2008, his post-conviction lawyers raised the issue in his state habeas corpus proceedings, and the state courts rejected his claim, analyzing the issue under the "Briseño factors," a non-scientific series of questions developed by the state court in the case of Jose Garcia Briseño. Mr. Long then raised—and lost—the issue in the Texas federal district court, with the U.S. Court of Appeals for the Fifth Circuit refusing to consider his appeal. However, on March 28, 2017, the U.S. Supreme Court struck down Texas's use of the Briseño factors, and less than one month later Long filed a petition in the U.S. Supreme Court asking the Court to apply its ruling in Moore to his case. While that appeal was pending and briefing was ongoing, Texas scheduled an execution date for Long during a period in which the Court was in summer recess. Long filed an application for a stay of execution in the Supreme Court. He then filed a new habeas petition in state court on August 3, 2017, reasserting the intellectual disability claim the state courts had initially denied and sought a stay of execution in the Texas Court of Criminal Appeals. The state court wrote, "In light of this new law and the facts of applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court." Briefing has been completed on his petition seeking U.S. Supreme Court review, and a decision is expected in early October on whether the Court will review his case. 

Mark White, Former Governor of Texas and Death-Penalty Critic, Dies at 77

Mark White (official portrait, pictured), a former governor and attorney general of Texas who became an outspoken critic of the death penalty, died on August 5 at the age of 77. Mr. White served as governor from 1983 to 1987, during which time he oversaw 19 executions. In an unsuccessful comeback bid in 1990, a campaign ad touted his strong support for the death penalty, featuring photos of the men executed during his tenure as governor and declaring, "Only a governor can make executions happen. I did and I will." Over time, however, his views changed and he became an advocate for the wrongfully condemned. In May 2014, White published a reflective op-ed in Politico, in which he declared that the administration of the death penalty is egregiously flawed. Citing the botched April 2014 execution of Clayton Lockett in Oklahoma, White wrote that the death penalty lends itself to mistakes and abuse. Lockett died of a heart attack approximately 40 minutes after the state began administering an untested lethal-injection protocol. “As I’ve watched how the death penalty has been administered over the years," White wrote, "both in Texas and around the country, it has become increasingly clear to me that we just don’t do a good job at any phase of the process, from ensuring that capital trials are fair to the actual handling of executions themselves." White wrote that the death-penalty system is plagued by arbitrariness. "We now have incontrovertible evidence that America’s criminal justice system does a poor job of determining who deserves the death penalty,” he said, noting that 12 Texans had been among the many people released from death row after evidence of their innocence emerged. Since the publication of White's op-ed, that number has risen to 13. As a "recovering politician," White volunteered to work with reform groups and innocence organizations in an attempt to redress his concerns about the unfairness of the criminal justice system. In 2012, he lent his voice to the NAACP Legal Defense and Educational Fund's efforts to obtain a fair sentencing hearing for Duane Buck—who had been sentenced to death after a defense mental health expert, and then the prosecutor, told the jury that he posed an increase risk of violence to society because he is black—narrating the video, A Broken Promise in Texas: Race, the Death Penalty, and the Duane Buck Case. He also served as the long-time co-chair of The Constitution Project's Death Penalty Committee, on which he worked with other former prosecutors, governors, and corrections officials to advance bi-partisan efforts at death-penalty reform.

Texas Prisoner Seeks Stay of Execution; Was Represented by Disbarred Lawyer and Lawyer Who Relied on Wikipedia

Lawyers for Texas death-row prisoner TaiChin Preyor (pictured), whose prior federal habeas lawyer relied on research from Wikipedia and the guidance of a disbarred lawyer, have filed motions in state and federal courts seeking to stay his scheduled July 27 execution. His pleadings allege that he was represented by a succession of inept counsel, including a penalty-phase lawyer who failed to interview key witness or seek critical mental health testing; a post-conviction lawyer who met him for the first and only time on the day of his state habeas evidentiary hearing; and federal habeas counsel consisting of a disbarred lawyer and a real estate lawyer who defaulted a significant constitutional claim of prior counsel's ineffectiveness. Preyor was convicted and sentenced to death in 2005. The prosecutor told his sentencing jury that Preyor came from a “wonderful family” full of “outstanding people.” The new pleadings, however, set forth facts recently discovered when new counsel was provided funding to invewtigate his case: that Preyor endured a "harrowing" childhood "marred by severe physical and sexual abuse," and that he "turned to alcohol and drugs at a young age to cope with this unrelenting abuse." Preyor repeatedly witnessed his mother being beaten by numerous boyfriends and was threatened with a knife by one of them when the boy attempted to intervene. While still in elementary school, he was repeatedly sodomized and digitally penetrated by a close family member. While a teenager, he broke his ankles jumping off a 4th floor balcony to escape his mother, who was chasing him with a knife. The recent court filings seeking to re-open his federal habeas proceedings say this information was never presented to the federal court because his federal habeas counsel — a probate and estate planning lawyer with no death penalty experience — was "woefully unqualified" and "relied on Wikipedia, of all things, to learn the complex ins and outs of Texas capital-punishment." That lawyer, Brandy Estelle, so clearly lacked the necessary qualifications that the Fifth Circuit refused to appoint her and a judicial clerk reviewing death-penalty cases contacted the Texas bar to seek replacement counsel. Further, the motions allege, Estelle was actually a front who did no more than sign the documents filed in court; Phillip Jefferson, a disbarred lawyer who had misrepresented himself as a lawyer to Preyor's family actually drafted the pleadings. According to Preyor's current counsel, Jefferson and Estelle collected money from the family for their services, while Estelle also submitted invoices for payment to the federal courts. The motions ask the state and federal courts to stay Preyor's execution while this "fraud upon the court," the ineffectiveness of prior counsel, and the newly discovered evidence can be reviewed and assessed by the courts. Preyor has also asked the Texas Board of Pardons and Paroles to commute his sentence, or alternatively, grant him a reprieve so that the legal issues in his case can be reviewed. Five Texas prisoners have received stays of execution so far in 2017, from either the state or federal courts. Texas has carried out four executions in 2017.

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New Generation of Prosecutors May Signal Shift in Death Penalty Policies

A new generation of prosecutors, elected across the country on a platform of criminal justice reform, are taking a different approach to criminal justice policies than their predecessors, including a reduction in the use of capital punishment. A Christian Science Monitor profile of these prosecutors—focusing on Mark Gonzalez (pictured), the Nueces County, Texas, district attorney—says "[f]rom Texas to Florida to Illinois, many of these young prosecutors are eschewing the death penalty, talking rehabilitation as much as punishment, and often refusing to charge people for minor offenses." Their reform measures not only create greater opportunities for rehabilitation of offenders, but also reduce costs for the county and state governments. Stanford Law Professor David Alan Sklansky said, “It does seem to be a new and significant phenomenon. It’s rare to see so many races where the district attorney is challenged, where they lose, and where they lost to candidates calling not for harsher approaches, but for more balanced and thoughtful, more restrained, more progressive approaches to punishment.” In 2016, several new prosecutors who ran on reform platforms in major death-penalty counties defeated entrenched incumbents: Kim Ogg in Harris County, Texas; Andrew Warren in Hillsborough County, Florida; and Charles Henderson in Jefferson County, Alabama all pledged to reduce the use of capital punishment. Caddo Parish, Louisiana's District Attorney James Stewart, elected in 2015, has backed away from that parish's aggressive use of the death penalty while Denver District Attorney Beth McCann and Orlando State Attorney Aramis Ayala, both elected in 2016, have said they would not pursue the death penalty. In May 2017, Larry Krasner, a death-penalty opponent, won the Democratic nomination for Philadelphia District Attorney, making him the favorite to win the general election in November. Kim Ogg described the reasons for her support of criminal-justice reform, saying, “In the last decade the American people have literally lost faith in the fairness of our justice system. If they think we’re rigging the system, or trying to force outcomes, then they’re not going to participate, and to me that is a huge threat to our democracy.” Gonzalez says he has not decided how he will approach the death penalty, and in the meantime is still filing death penalty cases. But, he says, “We’re trying to change things. ... The culture is changing.”

Federal Appeals Court Grants Texas Prisoner's Request for Evaluation of Competency to Be Executed

The U.S. Court of Appeals for the Fifth Circuit has reversed a ruling by a Texas federal district court that had denied Scott Panetti (pictured), a severely mentally ill death-row prisoner, the appointment of counsel and funding for a mental health expert and investigator to evaluate his competency to be executed. In a 2-1 ruling issued July 11, 2017, the Fifth Circuit, noting that "a decade has now passed since the last determination of whether this concededly mentally ill petitioner is competent to be executed," ordered Panetti's case returned to the lower federal court to appoint counsel, provide funds for an evaluation, and grant counsel sufficient time to prepare a petition on Panetti's competence. Under the U.S. Supreme Court's 1986 ruling in Ford v. Wainwright, prisoners who become mentally incompetent—that is, so mentally ill or cognitively impaired that they are "unaware of the punishment they're about to suffer and why they are to suffer it"—cannot be executed. Panetti has twice been granted stays of execution related to his mental health and competency to be executed. In 2007, the U.S. Supreme Court ruled that the Texas federal courts had misapplied the Ford standard when they ignored the effect of Panetti's paranoid schizophrenic delusions on whether he had a rational understanding of his pending execution. The Court wrote: "Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose." On remand, the lower courts denied Panetti's challenge to his competency without providing him a lawyer and a mental health evaluation to develop his claim. In a statement, Panetti's lawyers said, "We are grateful that the court found that Mr. Panetti’s nearly four decades of documented schizophrenia and severe mental illness provided a sufficient showing to obtain experts and resources to pursue the claim that he is currently incompetent for execution.... Mr. Panetti has not been evaluated by any mental health experts since 2007 and his severe mental illness has only worsened while in prison. We are confident that when the lower court is presented with all the evidence, it will find that Mr. Panetti, a schizophrenic man who insisted on representing himself at trial and attempted to subpoena the Pope, John F. Kennedy, and Jesus Christ, is not now competent for execution."

Journal of Psychiatrist Who Presided Over 14 Texas Executions Reveals Mental Toll That May Have Contributed to Suicide

As a psychiatrist in the Wayne Unit of Texas' Huntsville prison from 1960 to 1963, Dr. Lee Hartman presided over 14 electric-chair executions. When his grandson, Ben Hartman, a journalist, began investigating Dr. Hartman's life, he discovered journals that chronicle those executions and the psychological toll they took, possibly contributing to Dr. Hartman's suicide in 1964. Dr. Hartman's journals contain basic data on the men who were executed, including their names, race, a summary of the crime, and notes on the execution itself. More profoundly, though, they capture Dr. Hartman's reactions to his experiences and how they shaped his views on the death penalty, leaving him—in his grandson's words—"a determined opponent of capital punishment." In 1962, Dr. Hartman wrote, "The death penalty is irreparable." After the highly-publicized execution of Howard Stickney, a 24-year old who professed his innocence, Dr. Hartman wrote, "Very shook up and angry over whole cruel mess." He had been with Stickney on his scheduled November 10, 1961 execution date as they neared the door to the execution chamber. The journal reports that the phone rang at 12:32 a.m. with news that a judge had granted a 10-day stay of execution. This was "[a]pparently a complete surprise to Stickney," the journal entry says, "who broke down, prayed and wept.” In May of 1962, still professing his innocence, Stickney exhibited "[d]ignity and grace, shook hands with several guards while waiting, didn’t want to take coat off.” The journal reports: "At 12:24, warden returned–no stay, Stickney quietly sat in chair." Three separate jolts of electric current were sent through his body, "1st shock at 12:25–dead at 12:30.” Elsewhere in the journal, Dr. Hartman wrote 19 pages on arguments for and against capital punishment, clearly setting out his views. “The death penalty has a brutalizing and sadistic influence on the community that deliberately kills a member of its group,” he wrote, permitting the public “to vicariously indulge in vicious and inhumane fantasies under socially-acceptable guises.” He wrote: "The death penalty is not applied impartially. There is such surfeit of these cases that to mention them would be redundant. The poor defendant is obviously at a disadvantage and frequently receives the extreme penalty while the wealthier accused escapes a prison term. There is well known discrimination on racial or class lines." Dr. Hartman struggled with depression for many years, spending several months in a mental hospital after working in the prison. In 1964, he committed suicide by taking an overdose of pentobarbital, a drug now used to execute prisoners in Texas.

Execution Drugs Three States Attempted to Illegally Import Have Now Expired

Three thousand vials of the anesthetic sodium thiopental that three states attempted to illegally import into the United States for use in executions have now expired, according to an investigative report by BuzzFeed News. Arizona, Nebraska, and Texas each purchased 1000 vials of the drug in 2015 from a questionable supplier in India called Harris Pharma, despite warnings from the Food and Drug Administration (FDA) that importation of the drug would violate federal law. Citing documents obtained from the FDA through a public records request, BuzzFeed reports that the sodium thiopental in the shipments expired in May 2017. The FDA confiscated the sodium thiopental Arizona and Texas attempted to bring into the country after U.S. Customs and Border Protection agents seized the shipments at airports in Phoenix and Houston. Federal officials justified their action saying that a 2012 court order "requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." FedEx halted Nebraska's shipment in India because of "improper or missing paperwork." Harris Pharma, the company that sold the drugs, claimed to have manufactured the sodium thiopental itself, but the facilities it registered with the FDA and the Drug Enforcement Administration were not equipped to produce pharmaceuticals. Harris had, in fact, purchased the drug from another Indian manufacturer and resold it to the three states at a substantially inflated price. The sole U.S. manufacturer of sodium thiopental halted production in 2011 over ethical concerns about the use of the product in executions. In January 2017, Texas sued the FDA in federal court over the agancy's continued detention of the drugs without having issued a formal decision on the disposition of the drugs. The FDA issued a final order in April 2017 refusing to release the drugs to Arizona and Texas, and Texas has challenged that ruling. A spokesperson for the Texas Department of Criminal Justice said the state's lawsuit against the FDA would continue, despite the expiration of the drugs. Last year, a Texas official whose name was redacted from official documents said in an affidavit that the state, "intends to continue importing thiopental sodium from the same foreign source, and with the same labeling, as the entry that FDA is currently detaining."

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