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CCA Judge Alcala not running for re-election in 2018

Our first open office for the next cycle.

Justice Elsa Alcala

A Texas Court of Criminal Appeals judge who is well known for her criticism of the death penalty announced on Thursday that she will not run for reelection when her term ends in 2018.

Judge Elsa Alcala, a Republican who was appointed to the court in 2011 by then-Gov. Rick Perry, said the main reason she won’t run is because of the “random and unreliable” results from partisan judicial elections.

“I have seen too many qualified judges lose their bids for election or reelection, and I have witnessed the converse situation too,” she said in a posted statement on Twitter Thursday morning.

[…]

The judge is known for her lengthy dissents. In a June opinion, Alcala argued it was time for the court to look at the constitutionality of Texas’ death penalty. Some arguments against its constitutionality are a nationwide decline in capital punishment, racial discrimination and lengthy stays in solitary confinement on death row, she said.

In her time on the court, the death penalty has become more publicized, and she thinks she played a role in that, she told the Tribune shortly after her announcement.

“I got some folks to think about things that maybe they weren’t thinking about before, so I’m proud of that,” she said.

You know how I feel about complaints about partisan judicial elections, so I’ll just glide past that. Scott Henson has characterized the CCA as being made up of a “Government-Always-Wins” faction and everyone else. Alcala, who was an Assistant DA and District Court judge in Harris County before being elected to the First Court of Appeals and ultimately appointed to the CCA, was not in that faction, and recently gave a look at how the CCA decides to issue or not issue habeas writs; those of you familiar with her colleague, Sharon “We Close At Five” Keller, will not be surprised. I just hope Judge Alacala’s departure doesn’t make the usually-awful CCA any worse. Best of luck to her in whatever comes next. The Press has more.

America’s deadliest prosecutors

Fascinating.

In anticipation of the 40th anniversary of the U.S. Supreme Court’s landmark death penalty decision, Gregg v. Georgia, today the Fair Punishment Project released a new report called America’s Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty.

The report identified America’s five deadliest head prosecutors out of the thousands that have held that office across the country in the last 40 years. Three of the five prosecutors (Joe Freeman Britt of Robeson County, North Carolina; Donnie Myers of Lexington, South Carolina; and Bob Macy of Oklahoma County, Oklahoma) personally obtained more than 35 death sentences each, while the other two (Lynne Abraham of Philadelphia County, Pennsylvania and Johnny Holmes of Harris County, Texas) oversaw District Attorney offices that obtained more than 100 and 200 death sentences respectively during their tenures. Together, they have put the equivalent of 1 out of every 7 people currently on death row.

READ THE REPORT

The report notes that these “overzealous” personalities disproportionately drove up death sentencing rates in their counties and their states–leaving an outsized impact on death sentencing statistics nationwide.

“The legitimacy of the death penalty is seriously undermined when it is only being used in a small handful of places by an even smaller group of prosecutors who continually engage in misconduct,” said Robert J. Smith, a legal fellow at Harvard Law School and one of the report’s researchers.

“This report suggests that the ‘win-at-all-costs’ mentality adopted by a small group of prosecutors has led to shockingly high rates of prosecutorial misconduct and wrongful convictions,” notes Harvard Law Professor Ronald Sullivan.

Findings include:

  • Three of the top five deadliest prosecutors (Macy, Britt, and Myers) had misconduct found by courts in 33%, 37%, and 46% of their death penalty cases respectively. (Rates are not available for the other two prosecutors who oversaw, but did not personally try, all of the death penalty cases in their counties.)
  • Four of the five deadliest district attorneys prosecuted, or oversaw the prosecution of, eight individuals who were later exonerated and released from death row. This total represents approximately one out of every 20 death row exonerations that have occurred nationwide.
  • Together, these five prosecutors obtained at least 440 death sentences, which is equivalent to approximately 15% of the current U.S. death row population, or approximately one out of every seven people currently sentenced to death.
  • After four of the five deadliest prosecutors left office (the fifth prosecutor is still in office), death sentencing dramatically declined in these jurisdictions, indicating that it was these individual personalities, not an excessive attachment to the death penalty by local residents, that drove up the rates of death sentencing.

Despite the fact that we have witnessed historic declines in death sentencing in the 40 years since Gregg, a small handful of prosecutors continue to use the death penalty at a disproportionate rate, which contributes to a misperception that the death penalty is widely used when in fact it isn’t. In 2015, death sentences were handed down in just 1% of counties nationwide,” said Professor Emily Hughes of the University of Iowa College of Law.

Professor Daniel S. Medwed of Northeastern University School of Law noted, “When there are so few prosecutors still using the death penalty today and these prosecutors regularly engage in inappropriate behavior, it begs the question about whether the death penalty can be constitutional under these circumstances.”

“What’s striking is the extent to which death sentencing rates plummeted in these jurisdictions after these individual prosecutors left office. Harris County has had 12 times fewer death sentences in the years since Johnny Holmes and his former deputy Chuck Rosenthal departed. While other factors have also contributed to this decline, it is clear that a handful of individuals have had an outsized impact on the death sentencing in Texas and nationwide,” notes Professor Jordan Steiker of the University of Texas Law School. “Without the sentences sought and obtained by these outliers, we would have an even clearer picture of the death penalty’s marginal and declining significance within American criminal justice.”

The report also names five additional District Attorneys who have earned a reputation in their respective states for their zealous pursuit of death sentences, and provides a snapshot of three active prosecutors who, if they continue on their current trajectories, may soon join the ranks of the deadliest prosecutors in America.

Read the report, it’s well worth your time. I’ve never been philosophically opposed to the death penalty, but I’ve never been attached to it, either. If and when it gets outlawed some day, that will be fine by me. Link via Daily Kos.

Darlie Routier, 20 years later

Here’s an update on one of the more notorious murder cases in recent history.

If it hadn’t been for that crazy Silly String, Darlie Lynn Routier might be a free woman today.

At least, that’s what many people believe about the notorious Rowlett woman now on death row after savagely stabbing her 5- and 6-year-old sons 20 years ago Monday as her husband and 7-month-old son slept upstairs.

Shortly after the murders, NBC5 (KXAS-TV) captured video of Routier — with bleached hair, smacking gum and giggling — spraying Silly String on her sons’ graves. Jurors in Kerr County watched the video at least seven times before convicting Routier of capital murder in 1997 for the deaths of one of the boys.

“They ended up deliberating on the Silly String,” her mother, Darlie Kee, told The Dallas Morning News this week. “Silly String is not a lethal weapon.”

Routier’s family says the Silly String, provided by Darlie’s sister, was part of a birthday celebration. Her oldest son, Devon, would’ve turned 7 that day. The party followed a prayer service for both Devon and his younger brother Damon, but TV cameras didn’t capture the tears, Kee said, only a frolicking Routier.

Kee maintains her daughter’s innocence, saying an intruder killed the boys. And even two decades later, there are lingering questions in some minds about Routier’s guilt.

Some point to a bloody sock found in the alley behind the family’s home as proof Routier was telling the truth about an intruder. Others don’t believe Routier is innocent but wonder if she really acted alone. And many people still have a hard time believing that a young mother could butcher her babies in cold blood.

Prosecutors in the case believe the matter is settled, but it continues to wind its way through the state’s appellate court system. No date has been set for Routier’s execution.

Her attorney and family say they believe new DNA testing will prove that someone else was in the home that night 20 years ago. They say the pending tests could give Routier, now 46, a chance at a new trial.

“This is not solved,” Kee said. “They have not found who killed my grandsons. That person is still walking the streets.”

I don’t know what to think about this one. It’s easy enough to imagine that Routier was not given a fair shake at trial, given the hysteria and the way she was portrayed in the media, but as far as I know there haven’t been any of the usual allegations about specific wrongs – prosecutorial misconduct, lying witnesses, tainted evidence, etc – that generally accompany cases where a clear injustice has occurred. Routier’s conviction was upheld by the CCA in 2003, though given the CCA’S notorious pro-prosecution tendencies, that in itself doesn’t mean much. She was granted the right to pursue further DNA testing by the CCA in 2008, but if anything has happened with that since then there’s no news of it I can find. This story about Routier appeared on the same day as stories about Kerry Max Cook’s exoneration after 39 years, Sonia Cacy winning a ruling of actual innocence in the death of her uncle, and the Supreme Court agreeing to review two Texas death row cases. Perhaps one day Darlie Routier will get another chance to convince a court she didn’t kill her sons.

More allegations against Kelly Siegler

Here they come.

Kelly Siegler

Howard Guidry was 18 years old when he was charged being the triggerman in a 1994 murder-for-hire case that involved a Missouri City police officer and his estranged wife. Twice he was convicted and sent to death row, and both times the prosecutor who sent him there was Kelly Siegler, the legendary Houston attorney who has been accused of withholding evidence in another high-profile murder case.

Now Guidry’s attorneys are saying she used the same tactics when she prosecuted their client, both in the original trial, which was overturned on appeal, and again when he was retried.

“Here it is – the same patterns and practices,” said Gwendolyn Payton, a lawyer at Lane Powell PC, a Seattle law firm that took on Guidry’s case pro bono. “And how many more are out there? It’s just really troubling.”

In the wake of District Judge Larry Gist’s ruling earlier this month, which said Siegler withheld evidence in the trial of David Temple and recommended a new trial for the Katy man, lawyers for Guidry are preparing to file amendments to a 2013 appeal explaining how her behavior in Guidry’s case is similar to what she did in the Temple case.

“We are alleging the same acts, independent of the Temple case,” Payton said. “We didn’t even know about the Temple case until that ruling.”

[…]

There are several striking resemblances between the Brady material that was not released in Temple’s 2007 trial and Guidry’s two death penalty trials, including evidence of other suspects and exculpatory evidence about the murder weapon.

In what may be the most damning example, Guidry’s lawyers were never told that crime scene investigators found fingerprints that were not Guidry’s on Farah Fratta’s car door and front fender where the shooter would have stood. The fingerprints were from another man who resembled Guidry and was friends with one of the suspects in the case.

The fingerprints that were found next to the body of the estranged wife were never disclosed to Guidry’s defense lawyers. The man resembling Guidry, who was part of the ring of suspects in the case, was never charged. Police investigating the slaying found human blood in the car he owned, which matched the description of the getaway car that witnesses saw, including having only one headlight.

In an appeal with hundreds of pages of arguments and sworn affidavits, Guidry’s lawyers allege numerous instances of misconduct. They contend Siegler hid the identity of the suspect resembling Guidry, his fingerprints and the fact that there was blood on the seat of his car.

In the Temple ruling, Gist took Siegler to task after she testified that Brady material did not need to be disclosed if she didn’t believe it.

“Of enormous significance was the prosecutor’s testimony at the habeas hearing that apparently favorable evidence did not need to be disclosed if the state did not believe it was true,” Gist wrote.

Lawyers for Guidry say the investigation of the man whose fingerprints were found is just one of the many pieces of evidence that was withheld.

“The trial counsel for sure never got that evidence,” Payton said. “It should have been disclosed under Brady, I don’t think anyone can argue unless you’re using the ‘Kelly Siegler rule’ that she didn’t find it credible.”

See here for some background. I vaguely remember this case, though I don’t recall any details or that there was a controversy about how the trial was conducted. As such, I have no insight as to the merit of these allegations. I do think the so-called “Kelly Siegler rule” is wrong and cannot be allowed to serve as a standard for what qualifies as Brady material. I don’t know what the standard should be, but it needs to be more inclusive than what the prosecution thinks the defense might need. I hope the generally prosecution-friendly Court of Criminal Appeals can provide some better guidance, because I strongly suspect Kelly Siegler isn’t the only prosecutor, and David Temple and Howard Guidry aren’t the only defendants, to whom this would need to apply. Hair Balls has more.

State Bar accuses Willingham prosecutor of misconduct

Wow.

In a major turn in one of the country’s most-noted death penalty cases, the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters.

Following a preliminary inquiry that began last summer, the bar this month filed a disciplinary petition in Navarro County District Court accusing the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Willingham’s defense.

“Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar investigators charged.

The bar action was filed Mar. 5 without any public announcement. It accuses Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana, the Navarro county seat.

Webb has since recanted that testimony. In a series of recent interviews, he told the Marshall Project that Jackson coerced him to lie, threatening a long prison term for a robbery Webb was accused of committing but promising to reduce his sentence if he testified against Willingham.

Jackson has repeatedly denied that he made any pre-trial agreement with Webb in exchange for his testimony. The former prosecutor acknowledged that he and others made extraordinary efforts to help Webb, but said they were motivated only by concern for a witness who had been threatened by other prisoners because of his testimony.

A lawyer for Jackson, Joseph E. Byrne, on Wednesday urged that people withhold judgment about the case until all the evidence was presented and took issue with the grievance filed against his client by the Innocence Project, a legal advocacy group.

“I disagree with much of the information that was put together by the Innocence Project and do not find it to be objective,” Byrne said.

[…]

Told of the state bar’s action, Willingham’s stepmother, Eugenia, said, “John Jackson committed a crime, and I want him punished. If the appeals court had known the truth, Todd would probably be alive today.”

A staff attorney for the Innocence Project, Bryce Benjet, said the group was encouraged by the bar’s disciplinary action. “Withholding exculpatory evidence and the presentation of false testimony in a death penalty case is quite possibly the most serious ethical breach for a lawyer you can imagine,” he said.

The disciplinary petition contends that “Jackson failed to make timely disclosure to the defense details for favorable treatment for Webb, an inmate, in exchange for Webb’s testimony at trial for the state.”

“During a pre-trial hearing on July 24, 1992, (Jackson) told the trial court that he had no evidence favorable to Willingham,” the complaint continues. “That statement was false.”

The Marshall Project disclosed earlier this month the existence of a letter sent by Webb to Jackson in 1996 asking Jackson to comply with what he called their “agreement” to reduce his judgment from aggravated robbery to robbery. Within a few weeks, Jackson obtained a court order that reduced the charge.

The grievance that led to this charge was filed last year after the evidence from Webb about his testimony being coerced first came to light. The Trib had a story last week that reviewed all this and that indicated that the charges against Jackson were coming. Go read that to get up to speed if you need to. As I said when this grievance was filed, we have started to see some rogue prosecutors be held accountable for their illegal actions. It would be a small but fitting piece of justice if John Jackson were to be held accountable for his. The Chron has more.

Michael Morton still has work to do

We should be glad he’s doing it.

Michael Morton, who spent nearly 25 years in prison for a murder he didn’t commit, said Monday that under current DNA testing requirements, he wouldn’t have had access to the evidence that led to his release.

Morton joined state Sen. Rodney Ellis, D-Houston, and lawyers from the New York-based Innocence Project at a press conference to urge passage of a bill to expand access to DNA testing in criminal cases.

“This is about making sure the right person is convicted and making sure our communities are safe,” Ellis said.

Senate Bill 487 would allow courts to grant DNA testing for pieces of evidence that have a “reasonable likelihood” of containing biological material, like saliva or sweat, that may not be visible to the naked eye.

A February 2014 ruling by the Texas Court of Criminal Appeals set a precedent of only granting DNA testing on pieces of evidence if there was proof that DNA evidence existed on those items. The court denied death row inmate Larry Swearingen’s request for DNA testing on the pantyhose used to strangle the victim because it wasn’t clear that tests would turn up any evidence.

“If the interpretation of the law as it stands now was enforced when I was trying to get access, I would not have been able to see that access,” Morton said. “We would not have been allowed to test it.”

SB487 would clarify another bill by Sen. Ellis from last session (SB1292) that mandated DNA testing for all biological evidence in death penalty cases. That’s in addition to the Michael Morton bill that will more tightly control the disclosure of evidence by prosecutors to the defense. The Observer highlights the importance of this session’s effort.

Innocence Project attorney Nina Morrison, who represented Morton, said that the bill “strikes the right balance” by giving judges the appropriate amount of discretion to order testing without turning the courts into DNA testing mills.

In Morton’s case, it took a court five years to grant permission to run a DNA test on relevant evidence.

“For somebody to be in a court battle about whether there is evidence for testing when the labs can just tell us—it just seems like a real waste of everybody’s time,” Morrison said.

Who knows, maybe if now-former Williamson County DA John Bradley hadn’t worked so hard to waste everyone’s time back then, he’d still be DA now. Too bad for him. SB487 should have bipartisan support but there still needs to be a House sponsor. Let’s get on with this, y’all. Grits has a copy of Sen. Ellis’ press release, and the Innocence Project has more.

The slow decline of the death penalty in Texas

Maybe a little.

Perhaps nothing symbolizes this state’s swagger over being tough on crime like “Old Sparky,” an electric chair that was used to execute 361 inmates and is now the centerpiece of a prison museum.

It sits just minutes from the Texas penitentiary where it was forever unplugged 50 years ago this summer following the execution of Houston’s Joseph Johnson Jr. for murdering a grocer.

While the oak chair is now a capital punishment relic photographed daily by visitors, this state’s death row is undergoing what looks to be a historic shift.

Texas forged an international reputation as it has executed far more inmates than any other state in the nation since 1982, when it resumed capital punishment with lethal injection. But this year, Texas just may lose its distinction as the state carrying out the most executions annually, sitting in a three-way tie with Missouri and Florida. Each state has executed seven people so far this year.

In Texas, a slew of changes in capital punishment that have been trotted out over the past decade or so and are taking hold. Those include requiring better legal representation for people facing the death penalty, giving jurors the option of sentencing defendants to life in prison without parole, and increasing the use of DNA and other scientific testing. And significant to the change is the realization by lawmakers and others that the system that condemns someone is not bulletproof.

The state executed an average of 29 people annually from 1997 to 2007, with 40 in 2000, according to statistics maintained by the Death Penalty Information Center. But it is now on track to have no more than 11 this year, according to the Texas Department of Criminal Justice, the fewest number in 23 years.

Texas is not getting weaker on crime, but getting smarter about who is sentenced to death by reducing the chances of condemning an innocent person, said former Texas Gov. Mark White.

“We are starting to recognize that being tough on crime doesn’t mean you have to be tough on innocent people,” White said. “We have learned a lot: use the cutting edge of science, and not just the fast draw of the Old West.”

Not sure how much credit I’m willing to give the Lege for this, other than the passage of life without parole, which has definitely had an effect. If there’s a greater awareness about wrongful convictions and the need to safeguard against them, it’s mostly due to the efforts of groups like the Innocence Project, local officials like Dallas County DA Craig Watkins, and the compelling stories of exonerated men like Michael Morton, Anthony Graves, and the late Timothy Cole. The fact that insufficient enthusiasm for the death penalty can still be used as a political attack suggests we haven’t come that far from the old days. Though I am not a death penalty abolitionist, I will be perfectly happy if this trend continues.

RIP, Randy Ertman

If you’ve lived in Houston long enough, this story will bring back a flood of memories and emotions.

Randy Ertman, a house painter who became a blunt-spoken, combative advocate for crime victims’ rights after his daughter and another teen were raped and murdered in a northwest Houston park, died Monday of lung cancer.

In the early 1990s, Ertman became a familiar figure to Houstonians as he appeared in news photos confronting relatives of his daughter’s killers, who had suggested the victims’ families bore some responsibility for the girls’ deaths.

Ertman’s advocacy led to changes in state law, allowing crime victims’ families to direct comments to convicted offenders in the courtroom and permitting relatives of homicide victims to witness executions.

[…]

Ertman was catapulted into his advocacy role by the June 24, 1993, murders of his 14-year-old daughter, Jennifer, and her 16-year-old friend, Elizabeth Pena. The teens were killed in T.C. Jester Park after they blundered into a nighttime gang initiation rite as they made their way home from a nearby party.

Six gang members were convicted in the crime – an episode so horrendous that it deeply shocked a city that routinely shrugged off acts of violence.

Three of the killers – Derrick O’Brien, 31; Jose Medellin, 33; and Peter Cantu, 35 – have been executed. Two others are serving life sentences; a sixth was given a 40-year sentence.

Ertman, 61, died one day after the anniversary of Cantu’s 2010 execution.

The murders of Jennifer Ertman and Jennifer Pena were just horrible. I have no connection to either family, it’s been almost 25 years, and I still can’t read about them without getting worked up. As you know, I have a lot of problems with the death penalty. Racial disparities, bad forensics, unreliable eyewitnesses, coerced confessions, an appellate system that cares far more about “getting a result” than getting that result right, the list of reasons to oppose the death penalty goes on and on. And yet, while I think our system of justice would be just fine without a death penalty, I can’t quite bring myself to call for its abolition. I have always felt, and I continue to feel, that there are some crimes and some criminals for which it is the appropriate response. I would not have been able to tell Randy Ertman, or a member of the Pena family, that the killers of their daughters deserved to have their lives spared. Maybe that’s a failing on my part, but if it is, I accept it. Rest in peace, Randy Ertman. I wish the same peace to your family and the Pena family as well. Doug Miller, who has a nice tribute to Randy Ertman on his Facebook page, has more.

On the death penalty

Most of what you need to know about this story concerning Wendy Davis, the death penalty, and the Governor’s race can be found at the end of it.

Sen. Wendy Davis

Sen. Wendy Davis

In July 2000, when she was a relatively new member of the Fort Worth City Council, Wendy Davis voted for an open-ended moratorium on the death penalty, a move that would have closed the nation’s busiest death chamber in Texas at a time when such a position was a political lightning rod in most of the state.

The resolution never passed.

Now, as the 51-year-old Democrat state senator ramps up her campaign for governor of Texas, her support for the resolution 14 years ago is attracting new attention, even though she publicly supports the death penalty.

Davis says her support for a moratorium in 2000, in a state that has executed more criminals than any other, was presaged on national questions at the time over whether innocent people were dying by lethal injection, at a time when DNA testing that had exonerated several convicts in Texas was just coming into vogue, and over whether juveniles and mentally disabled convicts, even foreign nationals, should face capital punishment.

Through a spokesman, Davis said the questions she had in 2000 have been addressed, by changes in law and by the courts.

“Senator Davis supports the death penalty and as governor will enforce it,” Zac Petkanas, her campaign communications director, said Friday. “In fact, she voted (as a senator in 2011) to expand the death penalty to those who murder children under the age of 10. … Senator Davis remains a proponent of the death penalty as ultimate punishment.”

[…]

In Texas, where overwhelming public support for the death penalty caused three Democrats vying for governor in the 1990s to run attack ads accusing each other of not being tough enough on murderers and other criminals, public support for capital punishment remains strong, though polls show that support has declined in the past 20 years.

“In 2000, as a new Democrat city council person in Fort Worth, given that Texas was far and away the most frequent user of the death penalty in the nation, her vote probably made sense,” said Cal Jillson, a political science professor at Southern Methodist University in Dallas who has followed Texas gubernatorial politics for years. “Now, she’s running for statewide office in a state where the death penalty has support levels 10-12 points above the levels nationally, so it makes sense that she’s supporting the death penalty now. That’s not surprising.”

What will make a difference in whether Davis’ change of heart becomes an issue in her race is whether Abbott can make it one, he said.

“This apparent inconsistency is not a problem, but the problem will be if Abbott turns it into an issue, saying she does not support the death penalty … and that criminals will be running in the streets,” Jillson said. “If you pressed her, you might find there’s a Democrat city council woman still below the surface.”

To William “Rusty” Hubbarth, an Austin lawyer who is vice president of the Houston-based Justice for All victims-rights group, Davis’ view of the death penalty is a curiosity. Twice in January, he said he wrote Davis asking where she stands on the issue. He said she has yet to respond.

“Considering her past position, does she support it or does she support the platform of the Texas Democratic Party that calls for the death penalty to be abolished?” he said. “Will this hurt her? Probably not. People who love her will love her more, and people who don’t probably won’t care what she did in 2000.”

I’d say Mr. Hubbarth is spot on. There are certainly people that wish Davis were forcefully against the death penalty, but that position is clearly at odds with public opinion in Texas and would be quixotic at best given that she couldn’t do anything to change the law as Governor anyway. What she can do is appoint members to the Texas Board of Pardons and Paroles that would be more than rubber-stampers, and support legislation that makes the process more just and transparent, which is what her support for a moratorium in 2000 after the execution of Gary Graham was about and which is consistent with her legislative record. For what it’s worth, while Texas remains the capital punishment capital of the world, our death row population has declined rapidly in the last decade and is at its lowest point since 1989. This is due in large part to a steep decline in the number of death sentences being meted out in the past decade. People may support the death penalty in Texas, but they’re getting a bit more reluctant for the state to use it, especially with “life without parole” as a sentencing option. All of this is a longwinded way of saying again that I agree with Rusty Hubbarth on the likely effect of this attempt by Greg Abbott to distract from Davis’ TV ad or whatever else he wants to distract attention from. EoW, Texpatriate, and Erica Greider have more.

Is there any valid evidence of Todd Willingham’s guilt left?

The Washington Post has a long piece examining the connection between the jailhouse snitch whose testimony helped send Cameron Todd Willingham to death row and the prosecutor who has long denied taking any action to influence that testimony.

For more than 20 years, the prosecutor who convicted Cameron Todd Willingham of murdering his three young daughters has insisted that the authorities made no deals to secure the testimony of the jailhouse informer who told jurors that Willingham confessed the crime to him.

Since Willingham was executed in 2004, officials have continued to defend the account of the informer, Johnny E. Webb, even as a series of scientific experts have discredited the forensic evidence that Willingham might have deliberately set the house fire in which his toddlers were killed.

But now new evidence has revived questions about Willingham’s guilt: In taped interviews, Webb, who has previously both recanted and affirmed his testimony, gives his first detailed account of how he lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line.

“Mr. Pierce and I visit on a regular basis concerning your problems,” Jackson wrote to Webb in August 2000, eight years after the trial, when his former witness was threatening to recant. (Jackson misspelled the rancher’s last name.) “We worked for a long time on a number of different levels, including the Governor’s Office, to get you released early in the robbery case. . . . Please understand that I am not indifferent or insensitive to your difficulties.”

Along with Webb’s account, the letters and documents expose a determined, years-long effort by the prosecutor to alter Webb’s conviction, speed his parole, get him clemency and move him from a tough state prison back to his hometown jail. Had such favorable treatment been revealed prior to his execution, Willingham might have had grounds to seek a new trial.

Read the whole thing, it’s well worth your time. I sadly disagree with the suggestion that this revelation will have any effect on public opinion about the death penalty. I think people have long since factored in this possibility in their thinking, and generally conclude it’s an acceptable cost. People have been making the argument about possibly executing the innocent without much traction yet. Maybe the recent ghastly news out of Arizona about horribly botched executions will help move public opinion, I don’t know. I just don’t expect this to do much on that score.

What I think this could do is spark a closer examination of how jailhouse snitches are used, much like the earlier revelations of bad investigative technique have spawned a real review of arson forensics and even a look at some other cases in which discredited methods were used to secure convictions. The cellmate to whom a defendant that is otherwise loudly proclaiming his innocence confesses fully to the crimes with which he is charged is practically a cliche, and often a too-easy convenience for overzealous prosecutors. If some kind of reform of that practice, or at least a heightened sense of skepticism when a jailhouse snitch is employed at trial, comes out of this, then at least some good will have resulted from Willingham’s needless and unjust death.

Actually, there is one more thing that can come of all this. I must have missed it in the WaPo story, but in this Chron story about Willingham’s stepmother and biggest advocate, there’s more to this than just information.

At 71, Eugenia Willingham has spent more than a third of her life trying to prove jurors were wrong when they condemned her stepson, Todd, for murdering his three young children in a deliberately set fire. Her faith in Texas justice fell as court appeals failed, then collapsed as ‑ after the 2004 execution ‑ seemingly well-crafted attempts to posthumously clear her son’s name were thwarted by the state.

Now, the Ardmore, Okla., woman’s hopes again are rising as lawyers for the New York-based Innocence Project target the prosecutor in Todd Willingham’s case in a complaint to the State Bar of Texas. The complaint alleges former Navarro County assistant District Attorney John Jackson arranged for a jailhouse informant to testify against Willingham in return of special consideration in his own case. Then he tried to keep the deal secret from the judge, jurors and the defense attorney, according to the complaint.

If the allegations are found true, Jackson, now in private practice, possibly could be disbarred.

[…]

Innocence Project Co-founder Barry Scheck said Willingham’s execution “would never have gone forward … if John Jackson had played by the rules.”

The complaint is the latest effort by Scheck’s organization to prove Willingham’s innocence.

All of the elements in the WaPo story are contained in the complaint, so do read them both. If Ken Anderson and hopefully Charles Sebesta can be held accountable for their unjust actions, I see no reason why John Jackson can’t be, too. Maybe, just maybe, they’ll serve as examples for others to learn from. Grits and PDiddie have more.

State Bar investigating Charles Sebesta

Good.

Anthony Graves

The State Bar of Texas has opened an investigation into Charles Sebesta, the former Burleson County District Attorney who prosecuted death row exoneree Anthony Graves.

The organization that oversees lawyers is investigating alleged professional misconduct by Sebesta, which, if proven, could result in his disbarment. The investigation was prompted by a complaint that Graves filed in January. Sebesta will have 30 days to file a response to the complaint.

“It sets a precedent for other state prosecutors that they have to act ethically,” said Ramota Otulana, a clerk at the law firm that represents Graves.

Graves spent 18 years behind bars — 12 of them on death row, where he twice neared execution — before the U.S. 5th Circuit of Appeals overturned his conviction in 2006, ruling that Sebesta had used false testimony and withheld favorable evidence in the case.

[…]

State Bar officials have said the previous complaint was dismissed because the statute of limitations on the alleged violations had expired. In 2013, lawmakers approved Senate Bill 825, which changed the statute of limitations, allowing a wrongfully imprisoned person to file a grievance up to four years after their release from prison in cases of alleged prosecutorial misconduct. Previously, the four-year statute began on the date the misconduct was discovered.

State Sens. Rodney Ellis and John Whitmire, and state Rep. Senfronia Thompson, all Houston Democrats, joined Graves in calling for accountability for Sebesta at a Wednesday press conference.

“I’m asking prosecutors to cooperate with the highest of integrity,” Graves told reporters in January. “It took me 18 and a half years to get back home. Two execution dates. All because a man abused his position.”

See here for the background. I hope they nail him. Sen. Ellis has more on his Facebook page.

Too old for death

Fascinating story about Texas’ oldest inmate on death row. He’s been there for 36 years.

Two weeks after he turned 40, Jack Harry Smith showed no signs of letting middle age slow him down. So on the first Saturday in January, he put on a ski mask, grabbed his pistol and a buddy, and went charging into a Pasadena convenience store.

As career criminals go, Smith never had been newsworthy nor successful. That changed by the time he ran out the front door of Corky’s Corner, and it wasn’t because of the small sack of cash in his hand.

Behind him lay the body of Roy Deputter, the store’s bookkeeper who lived in a trailer behind the store and had rushed inside with a gun when he heard the commotion. Before him loomed capital murder charges.

Smith’s lawyer says his client recalls little of the event. Prosecutors and lawmen typically are skeptical of convenient memory loss, but there’s a good chance he is telling the truth. On the day that Smith earned his ticket to death row, Jimmy Carter was threatening to slap a tariff on imported steel, Egypt and Israel were closing in on a historic peace accord, and the Dallas Cowboys were on the verge of their second Super Bowl title.

Which is another way of saying that Smith is old. By the standards of Texas’ death row, in fact, he is ancient. No one lasts that long in the nation’s most aggressive capital punishment state, certainly not a three-time loser who has spent most of his life behind bars. This isn’t California, which sends many people to death row but rarely executes them. The only inmates to escape the death chamber are those spared by appeals courts or those so mentally ill they are not competent for execution. And there are but a handful of those.

Smith is not one of them, and by rights he should not be alive. Yet he has beaten the odds and lingered on since 1978 – through six presidential administrations, countless Middle East negotiations and too many Super Bowls to remember. Tragedy has stalked his case for years and put his appeal on hold again and again. Now he is 76 and there’s no end in sight, at least not one imposed by the courts.

By “tragedy”, they mean that the original judge in the case and two of Smith’s lawyers died while his appeals were in process. That all helped delay the process, in addition to the usual slow pace of the system; the average inmate spends a bit more than ten years on death row before the sentence is carried out. At this point, the Attorney General’s office is officially pursuing matters, though the Harris County DA’s office could still be involved. Smith’s co-defendant was paroled a decade ago, and if his death sentence were to be commuted, he’d be paroled as well, though he has no family left and thus has no one to go home to. It’s hard to see what would be gained by continuing all the legal machinations. The best resolution, for some value of “best”, anyway, is probably to leave things as they are and let nature take its course.

Charles Sebesta needs to be held accountable

Amen to this.

Anthony Graves

Former Texas death row inmate Anthony Graves, who spent 18 years behind bars before he was exonerated in the bloody 1992 slaying of a Somerville grandmother, her daughter and four grandchildren, is seeking justice against the man who put him there.

In 2006, the 5th U.S. Circuit Court of Appeals overturned Graves’ capital murder conviction when a three-judge panel said he deserved a new trial after ruling that Burleson County District Attorney Charles Sebesta elicited false statements from two witnesses and withheld two statements that could have changed the minds of jurors.

Graves, who was released from prison in October 2010, is taking advantage of a new state law that allows a grievance against a prosecutor to be filed within four years of a wrongfully imprisoned person’s release.

State Sens. Rodney Ellis, John Whitmire and state Rep. Senfronia Thompson, all Houston Democrats, stood behind Graves on the campus of Texas Southern University on Monday as he and his attorneys urged the Texas State Bar to investigate and discipline Sebesta.

“I am asking prosecutors who operate with the highest integrity to support me,” Graves, 48, told reporters. “I am seeking justice for the man who wrongfully prosecuted me.”

[…]

Graves and his attorney, Bob Bennett, said the new law remedies the statute of limitations rule.

“There’s been no final order,” Bennett said. “Even if it was dismissed, you still have the option of coming back because there’s been no final order.”

Whitmire and Thompson sponsored the bill that was one of several that passed last year as details of Michael Morton’s wrongful murder conviction and exoneration came to light.

Anthony Graves deserves justice in the same way and for the same reasons as Michael Morton. In many ways, the injustice done to Graves was worse. If you’re not familiar with Anthony Graves, read this report by Texas Monthly writer Pamela Colloff, who is the authoritative source on Graves and Morton. That article was published on the day that Graves was freed after the charges against him were dropped.

Not until yesterday morning did Burleson County district attorney Bill Parham and special prosecutor Kelly Siegler explain why they had made such a dramatic about-face. At a press conference at the D.A.’s office in Brenham—just across the street from the courthouse where Graves’s retrial was to have taken place early next year—Parham told reporters that he was “absolutely convinced” of Graves’s innocence after his office conducted a thorough examination of his case. Parham was clear that this was not a matter of having insufficient evidence to take to trial; charges were not dropped because too many witnesses had died over the years or because the evidence had become degraded. “There’s not a single thing that says Anthony Graves was involved in this case,” he said. “There is nothing.”

Former Harris County assistant district attorney Kelly Siegler, who has sent nineteen men to death row in her career, went even further in her statements. Siegler laid the blame for Graves’s wrongful conviction squarely at the feet of former Burleson County D.A. Charles Sebesta. “Charles Sebesta handled this case in a way that would best be described as a criminal justice system’s nightmare,” Siegler said. Over the past month, she explained, she and her investigator, retired Texas Ranger Otto Hanak, reviewed what had happened at Graves’s trial. After talking to witnesses and studying documents, they were appalled by what they found. “It’s a prosecutor’s responsibility to never fabricate evidence or manipulate witnesses or take advantage of victims,” she said. “And unfortunately, what happened in this case is all of these things.” Graves’s trial, she said, was “a travesty.”

So yeah, this is a big deal. You need to read Colloff’s two feature stories to get the full measure of outrage at this horror. Sebesta avoided any repercussions for his abhorrent actions initially because Texas’ law at the time started the clock on the statute of limitations way too soon. Here’s Colloff again with the details.

At first glance, the bar’s lack of action against Sebesta is confounding. Why would the statute of limitations prohibit the agency from taking action against Sebesta, who prosecuted Graves in 1994, but not against Anderson, who prosecuted Morton seven years earlier, in 1987? The answer lies in one simple detail: the statute of limitations does not begin to run until the facts of the offense—such as withholding evidence favorable to the accused—are discovered (or, in legalese, “become discoverable”). In the recent proceedings against Anderson, the bar persuasively argued that the statute of limitations did not begin running until 2011, when the transcript describing Morton’s son’s account of the killer was found in Anderson’s files. Such a strategy was not possible with Sebesta, Acevedo told me, because “the information at issue”—i.e., that he withheld favorable evidence—“was known more than four years before the grievance was filed.”

Bennett, who filed the grievance, takes issue with that, arguing that the Fifth Circuit’s ruling “was the official notice of what had taken place.” And Graves’s attorney, Cásarez, believes that’s key. While it’s true that Graves’s lawyers learned in 1998 that Carter had repeatedly told Sebesta of Graves’s innocence, when they took a deposition from Carter at that time, it was simply a defendant’s word against that of a sitting district attorney. It was not until 2006 that the Fifth Circuit made an official finding that Sebesta had withheld evidence. “Now, how can someone file a grievance and expect to get anywhere until a court finds that the prosecutor engaged in misconduct?” Cásarez wondered.

Thankfully, SB825 took care of that loophole last year. Now maybe Charles Sebesta will finally be held to account for his actions. The Trib and Colloff again have more.

Review ordered for Jones allegations

Moving forward.

Judge Edith Jones

Chief Justice John Roberts of the U.S. Supreme Court formally ordered on Wednesday that a rare public judicial misconduct complaint against 5th U.S. Circuit Court of Appeals Judge Edith Jones be reviewed by officials in a different circuit — one based in the nation’s capital.

“I have selected the Judicial Council of the District of Columbia Circuit to accept the transfer and to exercise the powers of a judicial council with respect to the identified complaint and any pending or new complaints relating to the same subject matter,” Roberts said in a letter addressed to the D.C. circuit’s chief judge that was posted on the 5th Circuit’s website.

It is only one of a handful of times in U.S. history that a federal circuit judge has been the subject of a public judicial misconduct complaint and a formal disciplinary review. Normally such matters are secret under federal law.

“This is a hopeful sign that (federal judges) are taking this seriously,” says a lawyer who signed the complaint, James C. Harrington of the Texas Civil Rights Project.

[…]

Chief Justice Roberts’ letter, dated June 12, reports that the reassignment of the judicial misconduct complaint against Jones to jurists in Washington, D.C., came in response to a request for transfer from the current Chief Judge of the 5th Circuit, Carl E. Stewart.

Stewart, who replaced Jones as chief judge last October, apparently requested last week that the June 4 complaint review be assigned to another circuit court for review. However, his request on Friday for transfer was not previously made public.

See here for the background. Chief Justice Roberts’ letter is here, and more on the details of the complaint are here and here. I have no idea what to expect out of this, but I’m glad to see it being taken seriously. BOR has more.

Complaints filed against federal judge Edith Jones

This is a potential blockbuster.

Judge Edith Jones

A broad coalition of groups — including an agency funded by the Mexican government (the Mexican Capital Legal Assistance Program), various civil rights organizations, legal ethics experts, and law professors — filed the complaint against 5th U.S. Circuit Court of Appeals Judge Edith Jones, who in October relinquished her title as “chief judge” of that court. The New Orleans-based court is one of the most conservative in the country and handles appeals from Texas, Mississippi and Louisiana.

The complaint alleges that at a speech on Feb. 20, 2013, to lawyers at the University of Pennsylvania School of Law, Jones made statements that violated basic rules of judicial ethics, including the fundamental duty of impartiality.

Among her statements:

  • That certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “’prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities;
  • That Mexican nationals would prefer to be on death row in the United States rather than serving prison terms in Mexico, and it is an insult for the United States to look to the laws of other countries such as Mexico;
  • That Defendants’ claims of racism, innocence, arbitrariness, and violations of international law and treaties are really nothing more than “red herrings” used by opponents of capital punishment;
  • That claims of “mental retardation” by capital defendants disgust her, and the fact such persons were convicted of a capital crime is itself sufficient to prove they are not in fact “mentally retarded”; and
  • That the imposition of a death sentence provides a positive service to capital-case defendants because defendants are likely to make peace with God only in the moment before their imminent execution.

The Trib has links to the complaint and the affidavits. Kos notes that according to the complaint, Jones “also made prejudicial remarks on cases that have yet to wind their way through the lower courts, cases in which she may have a say during any appeals”, which certainly sounds problematic to me. BOR points out that Jones is hardly a stranger to controversy. Having said all that, the group that sponsored her talk has come to Jones’ defense, so the matter is far from settled. I look forward to seeing how this plays out. The Fifth Circuit is in dire need of a makeover, and if it begins with President Obama getting to name a replacement for Judge Edith Jones, that would be all kinds of awesome.

Remake the Fifth Circuit!

Yes, please.

The 5th U.S. Circuit Court of Appeals is widely viewed as one of the nation’s most conservative federal appellate courts, but President Barack Obama could get a chance to change that perception in his second term.

Ten of the 15 active judges serving on the New Orleans-based court were nominated by Republican presidents. But six of those GOP-nominated judges are eligible for senior status or will be in the next four years, a change that would allow the Democratic president to nominate their replacements.

The court, which reviews cases from Texas, Louisiana and Mississippi, also has two open seats that already can be filled.

Federal judges don’t have a mandatory retirement age and aren’t obligated to take senior status, a form of semi-retirement that allows them to continue hearing cases. While there’s no telling how many seats may open up, even a handful of vacancies would give Obama an opportunity to reshape the court’s ideological bent during his second term.

Russell Wheeler, a Brookings Institution visiting fellow who is an expert on judicial selections, said it’s plausible that the Democratic-nominated judges among active 5th Circuit judges go from being a 2-to-1 minority to holding a slim majority before Obama leaves office.

“I wouldn’t call that math. I’d call that informed speculation,” he cautioned. “It really all depends on the degree to which (Obama) can find nominees that Republican senators find acceptable.”

[…]

The 5th Circuit has a reputation for being a corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates. It also tends to favor employers over employees and shows more tolerance for organized, state-sanctioned prayer than other circuits.

University of Houston Law Center professor David Dow, who clerked for 5th Circuit Judge Carolyn Dineen King in the mid-1980s, said judges’ decisions are guided by Supreme Court precedent and statutory language far more than their personal ideology.

“There’s frequently room for people to disagree on what a statute means, but there’s usually not a wide range of disagreement,” he said. “The significance of ideology in most cases can be overstated.”

Dow, who founded the Texas Innocence Network and has represented more than 100 death row inmates in state and federal appeals, estimated that 95 percent of the cases on the 5th Circuit’s docket would be decided the same way no matter which direction the court leans.

I can think of one decision that might have been different with an alternate cast of characters in place. I don’t know much about the justices on the Fifth Circuit Court, but one that I do know is Edith Jones, the previous Chief Justice, who will turn 65 and thus become eligible for senior status in 2014. Jones was the author of that opinion I cited, and if you were to ask me which one justice for whom I’d like to see President Obama appoint a replacement, it would be her. Beyond that, any extra diversity of background and experience – perhaps David Dow would like to don the robes – would be appreciated.

Obama has nominated 42 circuit court judges and has had 30 confirmed as of early December, according to Wheeler. He said Obama’s confirmation rate is fairly consistent with the first terms of Clinton, who had 30 of his 39 nominations confirmed, and George W. Bush, who had 34 of 56 nominees confirmed.

Wheeler sees signs that Obama is poised to pick up the pace of his judicial nominations. The White House has submitted 15 nominations for district court seats since Congress broke in August, far more than his most recent two predecessors did during the same period of their presidencies, he said.

“He may be gearing up to go for broke in his second term,” Wheeler added.

To which I say, “about damn time”. Obama’s seeming lack of urgency in making judicial nominations was something for which he received a fair amount of well-deserved criticism during his first term, though Republican obstruction has been a big factor as well. If he plans to spend the next four years making up for lost time, that would be a fine thing.

UPDATE: I wasn’t aware when I wrote this that Ted Cruz is now on the Senate Judiciary Committee, where he joins John Cornyn. Cornyn has not been obstructive to Obama’s district court appointments in Texas, but this is different, and I don’t have any reason to expect that Cruz will play nice. So let’s just say this is more complicated than I originally thought.

Hampton going after Keller

I wish him the best of luck.

The ethics behind Court of Criminal Appeals Presiding Judge Sharon Keller’s decision to shut the doors on a death penalty appeal are resurfacing as her opponent launches a contentious campaign against her.

Democratic defense lawyer Keith Hampton is striking out at Keller, a Dallas resident who’s held the presiding judge post since 2001.

Experts say Hampton has a long road ahead of him, made rockier by the fact that no Democrat has won a statewide race in nearly 20 years. Though he has more money in his arsenal and is running a broad campaign against Keller’s job performance, her party affiliation and incumbent status are huge advantages.

Nine judges sit on the Court of Criminal Appeals, the highest court in the state for criminal charges, which hears capital punishment cases and has been criticized for reversing convictions for technical matters unrelated to a defendant’s innocence. If Hampton wins, he would be the only non-Republican on the court — and probably the only Democrat elected statewide.

“It’s difficult, but I don’t think impossible, given that Keller has some baggage and isn’t running the kind of campaign he is now,” said Sherri Greenberg, a former House member who is director of the Center for Politics and Governance at the University of Texas at Austin. “On the other hand, she may just be banking on that it’s a Republican gig.”

The Trib wrote about Hampton’s efforts to woo Republican voters last month. A victory for Hampton is one part how high the Democratic baseline is this year, and one part how successful he is at that persuasion effort. There is a Libertarian candidate on the ballot as well, which allows for the possibility of Hampton winning with a plurality vote. If he can get to 48%, he has a decent shot. Over the weekend he got the endorsements of the DMN and the Star-Telegram, which will help a little, and when all is said and done he should have most if not all of the remaining newspaper nods. It would be nice if more people were aware of Sharon Keller’s record and voted accordingly – visit VoteNoSharonKeller.com if you need a refresher – but this is how it is. If she wins again she gets six more years on the Court of Criminal Appeals bench. She doesn’t deserve that, and neither do we.

Erica Lee: How to Keep a First Grader Off Death Row

The following is from a series of guest posts that I will be presenting over the next few weeks.

Erica Lee

It is the beginning of the school year and excitement is in the air. Children are looking for their classmates in the hall. Parents are tucking in shoelaces and zipping backpacks. Teachers are taking one last look at the classrooms and organizing their supplies. Finally, students enter a wonderful first grade teacher’s classroom with pep in their step. The smiles are bright and everyone is filled with anticipation for another school year, an opportunity for excellence, a chance to help a child reach his or her full potential. As the first grade teacher begins to call the roll, and each child nods, raises a hand or answers, one question should be on the mind of school board members, community advocates, voters and even parents: How do we keep these first graders off Death Row?

Typically, when educational achievement is discussed, it becomes a dialogue about numbers, passing tests (See recent STAAR results), graduation rates (Black/Latino achievement gap) and college preparedness (College readiness data). Our leaders often speak of the positive academic goals we are trying to achieve in our education system; however, it seems like these statements fall on deaf ears or at least dispassionate ones. I believe adults/voters would put more energy into fixing education if they thought about the negative outcomes and costs to society that they personally wanted to avoid. It is a human nature to be more concerned about yourself than about a child you have never met. So, why don’t we speak about providing quality education as something that can prevent bad things from happening to good people — the good person being you, of course. It’s kind of like how brushing your teeth regularly can prevent tooth decay, or at least smelly breath for people in close proximity. For our children, the negative consequences for a failed education system include illiteracy, juvenile delinquency, under-employment, unemployment, drugs, felonies, and in the worst case scenario ending up on Death Row. These affect you whether or not you have children because Texas spends more money to lock someone up than it does to properly educate a child – $8,562 per pupil for education versus $18,031 per prisoner – and that’s in addition to police enforcement, SNAP, Medicaid, the war on drugs, lost taxes and lost lives.

You see the thing is there is a profile for the life history of many of the people who end up on Death Row or life without parole and much of that history starts in early childhood. The answer may be easier than we think. Attorney David Dow, who has defended over 100 Death Row in Texas over the past 20 years, describes the common background of his clients:

“Over 80% of the people on death row came from the same sort of families, had the same background, exposure to the juvenile justice system and were under-educated…the best possible version for their story would be a story where no murder ever occurs (paraphrase).”

Dr. Dow asks the question, “How can we intervene in the life of a murderer before he or she becomes a murder?” I ask you the same question rephrased as “how do we keep a first grader off Death Row?”

It is my belief that just like any challenge if we know the root causes then we are foolish to not attack it with all of our effort. For most major illnesses, researchers typically want to find the root cause and prevent the disease from ever developing. The prevention strategy is known to be more effective for long-term survival and often even more equitable. While we know many of the root causes that lead to poor academic achievement, slow language development, diet, poverty, family education attainment, access to books and experiences, for some reason we choose not to attack those with our best vaccine. We choose not to invest all we can in a child’s early years even when we know it will pay multiple dividends for decades to come. For some reason, it is easy to ignore those bright-eyed hopeful young children be they toddlers or first graders. While adults will readily form neighborhood watches, pay for alarm systems and attend community meetings on how to reduce crime, we rarely invest the same time and attention to the prospect of investing in our children.

So, how do we keep a first grader off of Death Row? We must invest early and often in their social, emotional and academic development In a state where only 14% of our 3 year-olds are enrolled in pre-k or Head Start (Children’s Defense Fund) and over 25.7% are in poverty, we must find ways to support early childhood education that help our children build a strong foundation. During my time as a first grade teacher, I noticed a distinct difference in the cognitive development between those children who received early childhood education and those who had not. The children who had attended such programs often had a wider vocabulary and grasped concepts at a faster pace. And, once the gap of development and knowledge begins then it becomes ever harder for a child to catch up. And, if they never catch-up with their peers (now global) then in the worst case scenario, someone is murdered and that child ends up on Death Row.

Maybe, if we thought about quality education and investment in our children as a matter of life and death we would not have stood more than $5 Billion in education cuts during the 82nd Texas Legislative Session. Maybe, if we truly believed in education, we would occupy our school buildings and board meetings to ensure that all children were given the opportunity to learn. Education is a matter of life and death—better health, economic and family outcomes increase almost lockstep with the level of education attained. It is not just about keeping an innocent child from eventually ending up on Death Row; but, it is about the community that we envision where the American Dream still lives.

Mathematically, scientifically, and fundamentally, it makes sense to work on prevention rather than the treatment after the disease of poor academic achievement has taken hold. But psychologically, our society seems to spurn prevention for bigger, more costly solutions. I am encouraging you to fight to prevent poor academic outcomes; we must turn the tide against stop gap solutions in our education system. Support candidates and organizations that will work to invest early and often in to the education of our children. Lend your voice, vote and effort to this cause; because, in a country that imprisons more than 2.3 million people and holds 25% of the world’s prisoners (leading all nations), our investment in our children, will determine whether we produce children of infinite destiny or more prospects for Death Row.

Erica S. Lee, MPP, is a candidate for the Harris County Board of Education, Pos. 6, Pct. 1. Connect with Erica at http://LeeforEducation.com or www.twitter.com/PublicPoLeecy.

The exoneration that wasn’t

I don’t know about you, but I’d forgotten about this.

Charlie Baird

A Texas judge who reviewed the controversial 2004 execution of Cameron Todd Willingham planned to posthumously exonerate the father who was put to death for killing his three daughters in a house fire.

Scientific experts who debunked the arson evidence used against Willingham at his 1992 trial and a jailhouse witness who recanted his shaky testimony convinced District Court Judge Charlie Baird in 2010 that “Texas wrongfully convicted” him. But Baird’s order clearing Willingham’s name never became official, because a higher court halted the posthumous inquiry while it considered whether the judge had authority to examine the capital case.

While waiting for permission to finish the case from the Third Court of Appeals, Baird put together the document that “orders the exoneration of Cameron Todd Willingham for murdering his three daughters,” because of “overwhelming, credible and reliable evidence” presented during a one-day hearing in Austin in October 2010.

“You can’t do anything for Willingham except clear his name,” Baird told The Huffington Post. “When they tried Willingham, I’m convinced that everyone worked in good faith. The problem is that up until the execution, everything had changed so dramatically that you realized the science relied upon at trial was not reliable enough to take a man’s life.”

Baird’s intended order never came to light because the court of appeals criticized his handling of the case and prevented him from resuming work on it before he left the bench at the end of 2010 after choosing not to seek re-election. No one asked him for it after the court of appeals blocked him, he said.

Baird, now an attorney in private practice, said he was moved to share the document with HuffPost after reading about Carlos DeLuna, a Texan who a Columbia University team said this week may have been wrongly executed in 1989.

Link via Grits, who asked for and received a copy of Baird’s order. I had previously blogged about Baird’s hearing and the Third Court of Appeals shutting him down. I don’t suppose we’ll ever get past the politics of this case, but I think Baird’s conclusion that a modern day jury would never have convicted on the evidence that was presented at Willingham’s trial is accurate. Whether we’ll ever use our better understanding of the science of fire to correct the wrongs of the past that still can be corrected remains to be seen.

Why better eyewitness ID procedures matter

Because bad eyewitness ID procedures can lead to the wrong people being executed.

State Sen. Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect’s identification was a “textbook example” of why the system needs to be reformed.

“What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case,” Ellis said in an email.

“… The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases.”

Accounts of the crime, the investigation and DeLuna’s prosecution were presented in a 400-page article published Tuesday in the Columbia Human Rights Law Review. Columbia University Law School authors argue that the crime actually was committed by Carlos Hernandez, a DeLuna acquaintance with a history of convenience store robberies. Hernandez, the article says, boasted of killing the store clerk

DeLuna was executed by injection in 1989. Hernandez died in prison, convicted of a knife attack on a female acquaintance, in 1999.

Of four people who saw events connected to the crime, only one, car salesman Kevan Baker, saw Lopez struggle with her assailant, the journal article says. Baker initially described a man who did not resemble DeLuna but changed his story after police brought DeLuna to the store.

Baker later told researchers he was only 70 percent sure of his identification, the journal says. Had police not told him DeLuna had been apprehended nearby, he would have been only 50 percent certain, he said.

That Columbia Human Rights Law Review article is here. The Trib has an interview with its author, and notes that a Chicago Tribune investigation from 2004 came to the same conclusion. The prosecutor in that case disputes these findings, which as we’ve seen with Todd Willingham and others is not unusual. What’s also not unusual is the fact that there was a questionable eyewitness ID as a key aspect to the state’s case. According to the Innocence Project, of the first 289 post-conviction DNA exonerations in the United States, “Eyewitness Misidentification Testimony was a factor in nearly 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions”. Getting eyewitness procedures right up front can and will avoid this problem. As Grits notes, Texas law-enforcement agencies must have in place by September 1 new procedures developed by the Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State. Not all of what Ellis and Gallego’s legislation would do is required, however, and there continues to be resistance to these reforms from within law enforcement. We’re heading in the right direction, but we’re not where we need to be just yet. Mark Bennett has more.

Andrea Yates, ten years later

It’s hard to believe that it’s been ten years since Andrea Yates drowned her children in their bathtub. I’ve blogged about her many times since first posting about her trial and conviction, which was later overturned on the grounds that an expert witness for the prosecution, Dr. Park Dietz, gave false testimony at her trial; he claimed that she had watched an episode of “Law and Order” in which a woman murdered her children and was acquitted after using a defense of postpartum psychosis when in fact no such episode ever existed. She was eventually found not guilty by reason of insanity in 2006. I said at the time that justice has finally been served, and I believe that to this day.

I’m glad there are more resources now for mothers who are suffering from postpartum depression. I’m glad that Andrea Yates is doing better, and I hope some day she’ll find peace and healing. I wish the legal system, and society in general, had evolved further in its understanding of these issues. And I hope there’s never another case like this one to test that understanding.

Willingham documentary

From the Trib:

As you’re reading this, Steve Mims and Joe Bailey Jr. are putting the finishing touches onIncendiary, a new documentary about theCameron Todd Willingham case that focuses almost entirely on forensics — on the science behind arson investigations like the one that led to the Corsicana man’s arrest, conviction and execution following the death of his three small children in a 1991 house fire.

Mims and Bailey aren’t political activists; the former lectures in the University of Texas’ Department of Radio-Television-Film, while the latter is a graduate of UT’s law school. But they were so moved by an article about the Willingham case in The New Yorker that they decided to tackle one of the most controversial topics in the modern era of state’s criminal justice system.

Featured in the film are two arson science experts, Gerald Hurst and John Lentini, talking about the case and about forensics in general. Willingham’s original defense attorney, David Martin, also gets a lot of screen time — although, given his skepticism about any wrongdoing by the authorities, he could easily be mistaken for a prosecutor. Barry Scheck, co-director of the New York-based Innocence Project (and best known as a member of O.J. Simpson’s criminal defense team), plays a leading role as well.

But the breakout performance is that of Williamson County District Attorney John Bradley, who was appointed by Rick Perry to chair the Texas Forensic Science Commission just as the commission and its previous chair were inconveniently set to weigh in on the Willingham case during the gubernatorial campaign. Bradley is combative, bordering on hostile, from the moment he appears in Incendiary, both in his dealings with the press and with his fellow commissioners.

There’s an 8-minute preview at the Trib link, which is well worth your time to watch, plus a brief Q&A with the filmmakers. I look forward to seeing the finished product.

An answer in the Claude Jones case

Back in June, I noted the case of Claude Jones, who had been executed in 2000 for a murder committed in 1990. The main piece of evidence used to convict him was a single strand of hair that a forensic expert who examined it under a microscope testified belonged to Jones. It was not subjected to DNA testing. In June, after a three-year court battle, the Innocence Project and the Texas Observer won the right to have DNA testing performed on that hair. The results are in, and they show that it did not belong to Claude Jones.

The tests do not offer conclusive proof of Jones’ innocence, but raise questions about his conviction, which was largely based on the hair fragment, the only physical evidence against him.

Thursday’s announcement came as vindication to Jones’ son, Houston associate engineer Duane Jones, 50, who was reunited with his father only after the elder man found himself on death row.

“I was 98 percent sure of what he was telling me,” Duane Jones said of the convicted killer’s claim of innocence, “but now I believe him 100 percent. He was railroaded. He did not shoot that man. I think not only am I owed an apology, but so is everybody in the whole state of Texas.”

[Then-Gov. George W.] Bush’s decision to reject Jones’ plea for a 30-day reprieve the day before he was executed followed the recommendation of his staff counsel Claudia Nadig, whose confidential report to the governor made no mention of the condemned man’s request for DNA testing, despite that being the reason a stay was sought by Jones’ lawyers.

“I have no doubt that if President Bush had known about the request to do a DNA test of the hair he would have issued a 30-day stay in this case and Jones would not have been executed,” said Barry Scheck, co-director of the Innocence Project, which joined the Texas Observer, an Austin-based political journal, in calling for the new tests.

Just prior to the Jones’ appeal, Scheck noted, Bush had endorsed the post-conviction use of DNA testing to establish guilt or innocence in questionable cases.

Had DNA testing been performed in 2000, Scheck said, Jones’ conviction likely would have been reversed. “It’s a pretty significant event to know someone was executed wrongly,” Scheck said.

Given that Bush is now out on a national tour promoting his new book, I’m sure this question will be asked of him again. I wonder what he’ll have to say about it. For that matter, someone should pester Ms. Nadig until she explains why she kept that information from the Governor. Seems to me there’s a pretty strong moral case to be made that she is directly responsible for Jones’ death. I wouldn’t want something like that on my conscience.

Anyway, you should read the Observer story, which goes into a lot more detail. Again, this doesn’t mean Jones was innocent, but it does mean that if this result had been known that he likely never would have been tried for the crime. Note also the use of the jailhouse snitch and his convenient testimony, which he has since recanted, that Jones confessed to him. The reason these cases keep cropping up is because the emphasis for prosecutors is on getting a conviction rather than getting it right. As long as that’s what we incentivize, that’s what we’re gonna get. Grits and Bob Moser have more, and a statement from Sen. Rodney Ellis is beneath the fold.

(more…)

It’s official, Keller skates

Can’t say I’m surprised. Bitterly disappointed, but not surprised.

A special court of review on Monday declined to reconsider a decision to void an ethics rebuke given to Sharon Keller for her role in a botched execution-day appeal, apparently ending the case against Texas’ top criminal judge.

Prosecutors had argued that the special court mistakenly dismissed the charges against Keller over a procedural error, ruling last month that the State Commission on Judicial Conduct chose the wrong form of punishment when it rebuked the judge in July. They asked the court to return Keller’s case to the commission.

But the special court — three appellate justices chosen at random to hear Keller’s appeal of the rebuke — rejected that request without comment.

I’ve got no snark left in the tank for this. When good things happen to bad people, all you can do is remind yourself that much like Sharon Keller herself, life is not fair. What else is there to say? Grits has more.

Maybe we’re not on the hook for Keller’s legal fees after all

Well, at least it’s a small consolation.

Clearing up confusion in its dismissal of an ethics rebuke against Judge Sharon Keller, a special court of review has issued an order that no longer makes taxpayers liable for Keller’s legal costs.

The court’s original Oct. 11 order said Keller could recoup legal costs from the State Commission on Judicial Conduct — estimated by her lawyer to be “in the six figures” but probably less than $1 million.

State law, however, specifies that attorney fees cannot be awarded in judicial conduct proceedings. The new order deletes the reference.

At least that takes a teeny bit of the sting out of this whole debacle. The motion to reconsider is still pending, and that’s the only real hope for some kind of accountability. The Chron calls on the panel to do the right thing:

A possible escape from this absurd conclusion is a motion for rehearing filed with the review panel by the commission’s executive director Seana Willing and special counsel John J. McKetta. They persuasively argue that the commission is empowered by the Texas Constitution to choose from a wide range of options in dealing with judicial misconduct, noting the constitution gives the commission the authority to issue a public warning “after such investigation as it deems necessary.” Also, Rule 10 of the Texas Rules for Removal or Retirement of Judges, used in proceedings such as Keller’s, states that in lieu of removal or retirement, “the commission may dismiss the case or publicly order a censure, reprimand, warning, or admonition.”

If the special court won’t allow the warning, the lawyers argue that the matter should at minimum be remanded to the Judicial Conduct Commission for consideration of one of the alternative rulings. We agree.

I had said before that Keller getting off on a technicality would be the ultimate in bitterly ironic endings. The ultimate in happily ironic endings would be for Keller to wind up suffering a real punishment as a result of appealing the wrist slap she originally received for being too harsh on her. A boy can dream, can’t he? Grits has more.

Maybe Keller hasn’t gotten away with it just yet

Could there possibly be some accountability in this world?

[The state Commission on Judicial Conduct]’s executive director, Seana Willing, asked the panel to reconsider its decision to dismiss the case, which stemmed from Keller’s actions on the day Michael Wayne Richard was executed in 2007.

The three-judge panel had ruled that because the commission had instituted formal proceedings against Keller, it didn’t have the authority to issue a public warning against her.

Instead, the panel said the commission’s only choices were public censure, which is more serious than a warning; a recommendation for her removal from office or her retirement; or dismissal of the case against her.

Because of that, the panel dismissed the case. The panel, called a special court of review, had been appointed by Texas Supreme Court Chief Justice Wallace Jefferson to consider Keller’s appeal.

Willing, in her motion for rehearing, disagreed with the decision about the commission’s authority to issue a warning.

But if that’s the case, she said, the appropriate thing would have been for the panel to send the case back to the commission so it could choose among its more limited options.

“The commission is capable of correcting its error, and on remand can apply the correct range of censure, removal, retirement, or dismissal this Court found is available in formal proceedings,” Willing wrote.

At this point, there’s nothing about this case that isn’t unprecedented, so who the hell knows what the panel may do. Speaking strictly as a non-expert non-lawyer, I don’t generally expect anybody to change their minds in this kind of situation. I do think Willing’s filing has merit, but then I think Keller should have been booted off the bench, so take that with a gigantic grain of salt. I figure this is just a setup to dash my hopes again, so I’ll save a step and not get them up in the first place. Go ahead and tell me if you think I’m being excessively cynical. Grits has more.

Keller takes a victory lap

She’s still blaming others and lying about the facts.

Texas’ top criminal judge said Tuesday that she feels vindicated that a special court dismissed a public reprimand of her for closing her court and preventing lawyers from filing a last-minute appeal hours before their client was executed.

“What happened to me shouldn’t happen to any judge,” Texas Court of Criminal Appeals Presiding Judge Sharon Keller told The Associated Press during an interview at her courthouse office.

[…]

“I always felt once I got before a neutral judge, someone who hadn’t prejudged me, I’d be in pretty good shape,” she said. “And in fact, that’s how it turned out.”

Yes, thank God for her that she didn’t get in front of a judge like Sharon Keller, who would have given the back of her hand to her pathetic arguments. What a truly despicable human being she is.

Appeals court suspends Willingham court inquiry

This happened late last week.

An Austin appeals court has ordered Judge Charlie Baird to halt his inquiry into whether Cameron Todd Willingham was wrongfully executed in 2004 and whether there is probable cause that state officials committed a crime in their handling of Willingham’s case prior to his execution.

The Austin American-Statesman obtained an order by the 3rd Court of Appeals from the court clerk just prior to 5 p.m. today, after Baird heard several hours of testimony on the case. By that time, Willingham’s lawyers had announced that they were through presenting evidence.

Before Baird closed the hearing, former Gov. Mark White said that Willingham should be posthumously exonerated.

“The state of the testimony that convicted him has been impugned today,” said White, who said. “Every shred of evidence points conclusively to his innocence.”

Baird said he would take the case under advisement and issue formal findings of fact at a later date if they that is warranted.

Dave Mann has a good report of what actually happened at the hearing before the Appeals Court suspended matters, Grits reviews the politics of the matter, and the Stand Down blog rounds up coverage of the story. I don’t know what will happen at this point, but I feel pretty confident saying we’d be paying less attention to this now if Governor Perry and his henchman John Bradley hadn’t expended so much effort trying to keep the lid on it. Justice is slow, but usually it eventually arrives.

Keller gets away with it

I’m thoroughly disgusted.

A special court of review Monday threw out an ethics rebuke given to Presiding Judge Sharon Keller for closing the Court of Criminal Appeals at 5 p.m. despite knowing that lawyers wanted to file an appeal for an inmate facing imminent execution in 2007.

[…]

Bringing the high-profile case to a swift and stunning end, the review court said the commission committed fatal errors that doomed its punishment of Keller, issued in the form of a July “public warning” that chastised the state’s highest criminal judge for violating court procedures and bringing discredit to the judiciary.

In essence, commissioners chose the wrong punishment, opting for a warning when state law and the Texas Constitution limited their options to a “censure,” a more serious penalty, the court ruled.

The judges said they did not address the merits of the charges against Keller but based their decision solely on the errors committed by the commission.

[…]

On Monday, the review court ruled that the type of proceedings used for Keller can only end in censure, not a public warning, and that the error was so fundamental that the only course was to dismiss all charges.

Censure, the court reasoned, requires “a finding of good cause” and seven votes from the 13-member commission, an independent state agency that investigates allegations of misconduct against Texas judges.

“Here, by failing to (authorize censure), the commission implicitly acknowledges that it did not find good cause for its actions or have the required votes to take those actions,” the judges wrote.

The review court also assessed “costs of the litigation” to the commission, which could make taxpayers liable for Keller’s legal fees.

So not only does Keller walk on a technicality, but we the people get to pay her lawyer bills. I’m going to be sick. Don’t anyone ever talk to me about “accountability” again. Grits has more, and Jeff Gamso gives it a proper summation.

Willingham gets another day in court

Interesting.

State District Judge Charlie Baird said Monday that he would hold a hearing in his Travis County courtroom next week to determine whether Texas wrongly executed Cameron Todd Willingham, convicted of murdering his three young children by setting fire to his Corsicana home in 1991.

Baird said in an e-mail that a man who once testified that Willingham confessed to him about burning his house down with his children inside could be among the witnesses to testify during the hearing, set for the afternoons of Oct. 6 and 7.

But the critical evidence in the case will probably be claims by a string of experts who have found in recent years that fire investigators who testified at Willingham’s 1992 Navarro County trial ruled the fire was arson based on theories that have been disproved by updated science.

Lawyers for relatives of Willingham, executed in 2004, filed a petition with Baird last week asking him to hold an inquiry into the case to restore Willingham’s reputation and to look at whether state officials committed official oppression in their handling of his case before the execution. Those state officials are not named.

[…]

The suit also asks that Baird determine whether there is probable cause to charge Texas officials with official oppression under a legal mechanism called a court of inquiry. The suit claims that those officials, who were not named, committed that crime by failing to consider before Willingham’s execution that he was convicted on discredited arson science.

Baird said in his e-mail that he has issued a bench warrant to have Johnny Everett Webb, who testified at Willingham’s 1992 trial, brought to Travis County for the hearing. Webb told a jury during that trial that Willingham confessed to the arson while they were in the same jail.

Webb is in the Navarro County Jail on forgery and marijuana possession charges. According to news accounts, including an investigation of the Willingham case by The New Yorker magazine that was published last year, Webb has given differing accounts since Willingham’s trial on whether his testimony was truthful.

That’s one hell of a can of worms. I can’t wait to see what happens. Grits has more.

Keller’s appeal denied by Supremes

Poor baby.

The Texas Supreme Court this morning denied Judge Sharon Keller’s request to throw out last month’s public rebuke for her role in a botched 2007 death row appeal.

Later today, Keller’s lawyers are expected to file a separate appeal challenging the “public warning” given by the State Commission on Judicial Conduct. That appeal will ask Supreme Court Chief Justice Wallace Jefferson to name, by random drawing, three appeals court justices to review whether the warning was justified.

Today is the deadline for requesting the three-judge panel, which apparently would hold its own hearing — with witnesses, cross-examination and exhibits. (I wrote about the confusion regarding this appellate process last month.)

The Supreme Court did not elaborate or give reasons for its 8-0 ruling. Justice Nathan Hecht, who successfully challenged a public rebuke by the commission in 2006, did not participate.

In other words, we get to re-litigate everything all over again. All because she refuses to accept the little wrist slap she was given. Great use of tax dollars there. The Trib has more.

UPDATE: Grits tries his best to make sense of it all.

SCJC contests Keller’s appeal

When last we met, Sharon Keller had appealed the curious “warning” she received from the State Commission on Judicial Conduct to the Supreme Court, arguing that the Commission had acted “lawlessly” by issuing that particular sanction. The Commission has now fired back, saying essentially that it’s Keller who has violated protocol:

[I]nstead of appealing the commission’s decision through the usual route — requesting a new trial in front of a special tribunal appointed by the Supreme Court to reconsider its findings — Keller asked the high court to step in and evaluate the constitutionality of the sanction against her in an advisory opinion. She did that through a separate legal vehicle, called a writ of mandamus, which could allow the court to unilaterally reverse the commission’s decision. For Keller, there are two possible advantages in this approach: One, it saves her the time of going through the regular appeals process, and two, it puts her case in front of an all-Republican court that she might view as friendly.

The commission filed its response to Keller’s charges [Friday] morning. It says that even if it did act outside of the constitution — the commission maintains it did not — that Keller erred in asking the Supreme Court to intervene. That’s because Keller can only ask for a mandamus from the high court if she has already exhausted all other remedies under law. According to the commission, that hasn’t happened, because she hasn’t yet asked for a new trial from the specially appointed court to review her case. Keller has until the 30th day after the commission issued its decision — July 16, for those of you keeping track — to challenge it the old-fashioned way.

The SCJC’s response documents are here and here (both PDFs). I don’t think I can pinpoint exactly when this saga transitioned from melodrama to farce, but there’s no question we’re there now. Just sit back and enjoy the show, y’all.

UPDATE: Grits is taking my advice.

Keller appeals to Supreme Court

She’s still going for full vindication. Because as far as she’s concerned, she did nothing wrong.

[I]n a Supreme Court petition filed Thursday, Keller argued that the commission acted in a “lawless” manner because the Texas Constitution forbids it to issue such a warning.

“The order violates the constitution and is void. At the very least, it is a gross abuse of discretion,” wrote Keller lawyer Chip Babcock.

Babcock asked the court to issue a writ of mandamus ordering the commission to expunge the warning from all records and to drop its charges against Keller. “The (commission) should not be given rein to wreak additional mischief,” he wrote.

Here’s the background on what this is about. All I can say is that I can’t think of a more bitterly ironic ending to this fiasco than Keller getting off on a technicality. Somebody pour me a drink.

UPDATE: Grits has more.

What is this “warning” of which you speak?

I’m glad to see that someone is asking questions about the warning that the State Commission on Judicial Conduct handed down to Sharon Keller.

Seana Willing, the commission’s examiner, contends in an e-mail that the order is based on a rule that does not comport with the Texas Constitution. As examiner in judicial misconduct cases, Willing acts as a prosecutor does in a criminal case, gathering and presenting evidence, often assisted by a private attorney.

Willing says, “I’m not criticizing the commission for what they did, but I don’t understand why they did what they did.” But Willing is concerned that the commission’s public warning in Keller could result in “bad law” and cost taxpayers more money.

She argues the commission should have based its order on the constitution, which allows the commission only three options after it begins formal proceedings against a judge and after a special master issues a report: issue a censure, recommend removal or retirement, or dismiss the charges.

But John J. “Mike” McKetta, the special counsel who prosecuted Keller, thinks the constitution allows the commission to take the action it did.

Bob Warneke, the commission’s counsel in Keller, says the commission’s position is that the order “speaks for itself.” He declines further comment.

The question is somewhat complicated, and turns on what the Texas Constitution outlines and what the rules for the SCJC specify. It’s a bit of a mess, actually. The Statesman has a good story on this as well, which includes the fact that Keller is the 96th judge to be examined by the Commission, and the first to receive this particular sanction. One thing I hope we all can agree on:

While [Keller defense attorney Chip] Babcock is discussing an appeal, how such an appeal would proceed is unclear. That’s because there are different procedures for appeals after formal and informal proceedings. A public warning typically follows informal proceedings, but in Keller’s case, the commission issued a public warning after formal proceedings.

When the commission issues a public warning to a judge in informal proceedings, that judge has the right to ask the state Supreme Court to appoint three appellate justices to a special court of review to hear the appeal. Willing says in an interview that in such appeals, the three-justice panel reviews the evidence de novo, amounting to a new trial.

But because the commission initiated formal proceedings against Keller, Keller already has had a trial — before the special master. Willing says a new trial would be a waste of resources. She is concerned about Keller getting what amounts to a second trial on the taxpayer’s dime.

“This is taxpayers’ resources being expended for a second trial,” Willing says. “I have a problem with that.”

Willing says that even though the commission does not pay Graves Dougherty legal fees for McKetta’s work as special counsel, it had to pay for the firm’s expenses in Keller, which totaled about $20,000 so far. “Are we going to have to do that again?” Willing asks.

I would hope the answer to that is No. At this point, it appears the only way for that to be ensured is for Keller to take her medicine and let it go already. I’m not going to hold my breath waiting for that to happen. Thanks to Grits for the Texas Lawyer link.