Archive for the ‘Death penalty’ Category:
By Gislaine Williams, ACLU of Texas Outreach Coordinator
The DPIC reports 43 total executions around the country in 2012, with 75% of them carried out in Texas, Oklahoma, Arizona, and Mississippi. This constituted the second lowest number of executions since the death penalty was reinstated in 1976.
Texas carried out 15 executions, the highest in the country. The executions included the controversial case of Marvin Wilson, who was declared intellectually disabled and executed despite the U.S. Supreme Court ruling that executing the mentally disabled is unconstitutional.
Six inmates received stays of execution. The executions were stopped pending review of DNA evidence, the mental competency of the inmates, and claims related to ineffective legal counsel. Three people received reduced sentences and were taken off death row.
The TCADP report found that the use of the death penalty is geographically isolated to only a few counties in the state. There were nine new death sentences this year, over half coming from the Dallas/Ft. Worth area. Texas jurors in 4 capital cases rejected the death penalty, choosing to sentence defendants to life without the possibility of parole.
TCADP also highlighted the arbitrary nature of the death penalty in Texas and the disproportionate impact on African-American and Hispanic defendants. Over the last five years, 75% of new death sentences have been given to people of color.
Read the full report: Texas Death Penalty Developments in 2012: The Year in Review
Since 1982, Texas has executed a total of 492 people – 253 of the executions were carried out under Governor Rick Perry. There are seven executions already scheduled for 2013, starting with the January 29th scheduled execution of Kimberly McCarthy.
Attend the ACLU of Texas Symposium & Lobby Day Feb 10th & 11th in Austin to call for changes in the Texas criminal justice system. Click here to sign-up.
Send a letter to the editor of your local community newspaper demanding for an end to the death penalty in Texas.
By Brian Stull, ACLU Capital Punishment Project at 12:02pm
Yesterday was the final day of the hearing in Brownsville, Texas, for ACLU client and former death-row prisoner Manuel Velez. Judge Elia Cornejo Lopez heard summations, requested the parties to prepare proposed findings for her consideration, and announced that a decision would come at a later date.
For me, the hearing confirmed a longstanding ACLU observation: our indigent clients’ fates often hang on an arbitrary fact completely outside the client’s control and separate from questions of guilt and culpability – the quality of appointed counsel.
The hearing highlighted the following facts: 1) The state charged Manuel with the capital murder of a child, who with his mother and siblings had lived with Manuel for only two weeks, based on a theory that the child was completely healthy and only started receiving injuries during the two weeks he lived with Manuel. 2) On minimal examination, the medical evidence presented a strong defense, undisputed in this hearing, that the child began suffering very serious injuries far outside of this two-week window. And, 3) defense counsel did not explore or present any of this evidence.
The final witness at Friday’s proceedings was one of the two attorneys who had represented Manuel at trial, who was called to explain his work in the case. The other attorney was lead counsel, much older and more experienced; but he had died about a year ago. The second-chair attorney confessed that he deferred to the decisions of the other attorney to neither obtain the aid of a forensic pathologist nor mount any defense concerning the age of the child’s injuries.
In a bizarre twist, the prosecutor on cross examination highlighted the defense attorney’s many failures to live up to the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases – frequently upheld by the U.S. Supreme Court as the standard for evaluating counsel’s effectiveness. The prosecutor wanted the attorney to state whether he failed to meet those guidelines, or whether he was merely blaming his deceased co-counsel.
In somber tones, the attorney said that he bore his own responsibility to Manuel, and that he knew he had failed him. Asked by the judge what he would do differently if he had the chance, the attorney stated that it was clear to him that Manuel “is innocent.” He said he would hire Manuel’s habeas counsel, attorneys from the law firms Carrington Coleman and Rothgerber, Johnson, and Lyons, who would clearly obtain a different result.
As habeas counsel Greg Kanan stated in today’s summations, “There was a gross failure here by defense counsel and it must be remedied by a new trial.”
That is the just result we hope to see.
In a system that allows for defense lawyers who fall short of constitutionally minimal standards and leads to the execution of innocent people, the death penalty cannot rationally stand.
Day 4 of the Manuel Velez innocence hearing on Friday in Brownsville, Texas, brought into focus the plight of the poor, depressed, and overwhelmed young mother of the child victim who died — a mother who desperately needed help but never found it.
At a 2008 trial, Manuel was convicted and sentenced to death for killing 11-month-old Angel Moreno. Before Friday’s testimony, most of this hearing’s evidence has been the testimony of experts who showed that the child’s injuries were caused at a time when Manuel was not involved with the family and had no access to the child.
Witnesses Friday described the months leading up to the boy’s death, and the struggles his mother, Acela Moreno, faced. A friend testified that troubles started when Moreno came to her home at 3:00 a.m., with one of her three children in her arms. Moreno asked for money so she could flee the home of Juan Chavez, the father of the victim in this case, who was abusing her. The friend had provided money to Moreno in the past. On another occasion, the friend drove Moreno to a battered women’s shelter.
Friends and neighbors of Moreno described her as struggling and very depressed — she would cry frequently. She did not have a job. And she was caring for three children. The witnesses told the court Moreno could be found drinking a beer in the middle of the day; that she seemed to get easily frustrated.
At times Moreno lashed out violently at her children, including an occasion when she pushed her into a ceramic statue, breaking the statue and injuring the child’s head. An ambulance arrived and sought to take the child to the hospital, but Moreno refused.
This is a person society needs to help — not only for her own benefit, but to protect the children involved. Too often, there are inadequate resources to help such people. In this case, society clearly failed Moreno and her children. And it has become clear in this hearing that the result was the death of Angel.
Authorities only compounded this tragedy when they then charged Manuel with capital murder and sought his death sentence – as a direct result of Moreno moving in with him as she fled domestic violence.
The resources spent to convict Velez and to obtain his death sentence were considerable. Three prosecutors, three experts, and two appointed defense counsel participated in the 2008 trial, not to mention the judge and court staff. Even more resources have now gone into challenging Manuel’s death sentence – the Court of Criminal Appeals reversed it – and in challenging his conviction as false and unsupported.
Velez’s conviction and death sentence has been a tragedy for him and his family. He has been wrongly imprisoned for seven years. But the case also shows the tragedy of a society unable to care for its most vulnerable citizens. By repealing the death penalty and redirecting a fraction of the resources spent to carry it out, we could help many families struggling with mental illness, depression, drinking problems, and domestic violence. Tragedies like this one can be averted.
We also heard Friday from trial counsel from 2008, who fully admitted during testimony his serious mistakes in handling the trial. The hearing will conclude today.
By Brian Stull, ACLU Capital Punishment Project at 2:47pm
In Day 3 of the Velez hearing in Brownsville, Texas, I want to take a moment to explain the legal context – the rule of constitutional law – that will entitle Manuel Velez to relief if the judge, the Hon. Elia Cornejo Lopez, credits the facts presented.
The legal journey starts 50 years back with the U.S. Supreme Court’s landmark ruling in Gideon v. Wainwright. There, the court held that the Constitution entitles poor people facing possible imprisonment counsel appointed at the state’s expense. In later decisions, the court clarified that a poor person’s right to appointed counsel is a right to effective counsel.
So how does an appellate court, after a conviction, test whether the prisoner had effective counsel? The law gives a two-step test. First, counsel’s alleged mistakes must be serious errors, not Monday-morning complaints that a different strategy would have worked better. Second, the prisoner has to show that the trial attorney’s mistakes or omissions made a difference in the trial’s outcome – in legal parlance, “a reasonable probability of a different outcome.”
A typical winning claim looks like this. Counsel failed to present readily available evidence of the prisoner’s innocence. And, had that innocence evidence been shown at trial, it likely would have made a difference in the jury’s decision.
The task in this hearing for Manuel’s counsel, a dedicated team of lawyers from the firms Carrington Coleman and Rothgerber, Johnson, and Lyons, has been to demonstrate counsel’s failures to show that the child victim had been injured long before Manuel had access to him. Much of the hearing evidence is medical evidence of the child’s injuries that counsel failed to explore in the 2008 trial, which led to Manuel’s capital murder conviction and death sentence.
One of the crucial building blocks is to show that Manuel’s trial counsel had every reason to question the timing of the child’s injuries, but failed to do so. Yesterday, Manuel’s lawyers did just that with the presentation of deposition testimony of Dr. J. Keith Rose, who had met with Manuel’s trial attorneys in advance of the 2008 trial. Well before trial, Rose had told trial counsel they needed a forensic pathologist to look at the case, to look closely at brain injuries that appeared based on records to be more than two weeks old, and to create a timeline of injuries based on all available medical records. Rose also testified to medical records (in the months before the child’s death) showing a dramatic increase in the child’s head circumference, a cardinal sign of head trauma. Rose testified that counsel in 2008, while asking advice on what to do, had not brought him these crucially important records.
The second building block is to show that, had appropriate experts been called, a timeline created, and all records gathered, the result of Manuel’s 2008 trial would have been different. Many experts are testifying along these lines in this hearing. Today it was Dr. Ronald H. Uscinski, a renowned neurosurgeon whose academic work was cited in a recent U.S. Supreme Court opinion. Uscinski showed the court the child victim’s CAT scan and microscopic slides of his brain, both of which showed that the injuries ultimately resulting in his death happened months before Manuel was involved with the child’s family.
Attorney Tami Goodlette ended her examination of Uscinski the same way the team ended with many of their experts: “Had Manuel Velez’s attorneys called you and asked you to a render an opinion at his 2008 trial would you have told the jury what you testified to today?” The answer was yes.The hearing continues Friday with testimony by several witnesses, including one of the attorneys who represented Manuel at his unjust 2008 trial.
We’re in day 2 of the Manuel Velez innocence hearing in Brownsville, Texas. As we’ve previously explained, this case posed a dilemma because two adults were in a Brownsville home on Halloween 2005 when 11-month- old Angel Moreno was taken to the hospital unable to breathe. Both adults, Manuel Velez and Acela Moreno, the boy’s mother, pointed the finger at one another as the perpetrator. But no witness, physical, forensic, or other evidence suggests Manuel ever hurt this or any other child.
Nevertheless, to prove Manuel was the perpetrator – and convince a jury to sentence him to death – the state claimed that Manuel must have killed the child because the child only began showing evidence of injuries and abuse during the two weeks in which he (and his mother) lived with Manuel. Those two weeks ran up to the day the child was hospitalized.
At Manuel’s 2008 trial, the key to the state’s timeline theory was the testimony of, Dr. Norma Farley, a forensic pathologist. Farley stated in her trial testimony that the child’s injuries were all two weeks old or less.
Much of that changed today, dismantling the state’s timeline theory. Farley told the court today that various injuries occurred outside of the 14-day window when he lived with Manuel. First, she agreed with the neuropathologist, to whom she had sent the child’s brain for evaluation, that the child suffered brain injuries going back 18-36 days. That means those injuries had to have occurred while Manuel was in Tennessee working construction (from Sept. 10 to Oct. 14). Second, she conceded the child’s skull fractures could have been up to 20 days old. Third, she identified a scar on the child’s foot at the time of autopsy that was far more than two weeks old. The scar, Farley testified, appeared to be an intentional burn to the child’s foot.
Put all of this together with prior proof that Acela Moreno had admitted to biting and burning her child, and the only logical conclusion is that Manuel Velez is innocent and Acela Moreno guilty.
Farley’s testimony also shone a light on defense counsel’s woefully inadequate performance at Manuel’s trial. She testified that, if any lawyer for the state or defense had bothered to ask her the same questions she faced today, she would have disclosed that the child had injuries older than 14 days. Appallingly, Manuel’s trial counsel, who was charged with protecting his rights, never asked these questions.
So this hearing is not only about innocence, but about whether Manuel received the adequate assistance of counsel required by the Sixth Amendment. Farley’s testimony showed that counsel fell far short of what’s required.The hearing continues tomorrow.
The façade of the U.S. Supreme Court bears the motto “equal justice under law.” But that ideal is not confined to our high court. People across this nation seek out the courts for equal justice – a fair hearing, regardless of skin color, creed, or wealth. I spent yesterday in one of those local courthouses — in Brownsville Texas, just across the border from Mexico – observing the innocence hearing of former death-row prisoner Manuel Velez.
Hopes did not necessarily start high for Manuel and his many family members in attendance. That’s understandable. The last time they were in this courthouse was 2008. Manuel was convicted and sentenced to die for a crime he did not commit based, at best, on half- truths and incomplete and unreliable medical evidence. A poor person, Manuel had been assigned attorneys to safeguard his rights, but the attorneys, including one known for a drinking problem, did nothing to expose the huge and readily identifiable problems in the state’s case. With the state’s spurious claims going completely untested, this wasn’t a fair trial for Manuel; it wasn’t the fair shot at justice we count on as Americans.
That picture changed with the opening of yesterday’s hearing. Many of Manuel’s family members appeared in a strong show of support – his father, mother, two sisters, brother, a nephew and others were present. The family could see that Manuel now had lawyers who would stand up and fight for his rights. They could also see that the 2008 trial judge, Abel Limas, was gone from the bench, having been federally convicted of corruption. The family could see that his replacement, the Hon. Elia Cornejo Lopez, was intensely interested in the facts of the case, asked her own questions, and showed fairness to both sides. A palpable sense of relief filled the courtroom. Manuel’s family doesn’t know what the outcome will be, but they can see Manuel may have a chance at an equal shot at justice.
Today’s evidence began the process of exposing huge problems with the state’s theory of Manuel’s guilt, namely that the child victim had never been injured until the last two weeks of his life when he and his mother moved into a home with Manuel. Before that two-week period, the state contended, both the child had no injuries and Manuel had no access to the child.
Under skillful questioning by Manuel’s attorneys, Lyndon Bittle, partner at Carrington Coleman, and Greg Kanan, partner at Rothgerber, Johnson, and Lyons, medical experts outlined the bases of their findings that the child’s injuries were well over two weeks old.
One expert, a forensic pathologist, showed that the already healing injuries to the child’s brain, examined microscopically, were at least 18 to 36 days old. A second expert found the injuries were at least three weeks to a month old, if not older; he analyzed the child’s significant skull fractures and found them to be around the same age. These pathologies were consistent with alarming growth in the circumference of the child’s head in the months before his death. The experts testified that, in the absence of other explanations not possible here, such dramatic growth in circumference could only be caused by head trauma.
Day one of the hearing is now complete. It is one step in the direction toward justice.
By Brian Stull, Senior Staff Attorney with the ACLU Capitol Punishment Project
Imagine you are caring for a toddler and suddenly he stops breathing. You quickly get him medical aid, but it’s too late: the child dies at the hospital where medical personnel were unable to revive him. That would be a horrific nightmare for anyone, but things got even worse for Manuel Velez when this happened to him in Brownsville, Texas, on Halloween in 2005.
In a tiny home in a poor section of Brownsville, Manuel was watching two other small children and 11-month-old Angel Moreno for about 20 minutes when Manuel discovered Angel in distress. He awoke Angel’s mother, Acela Moreno, who was napping but who herself had been alone with the child only 20 minutes earlier. The two rushed to a neighbor’s home to call 911. Angel died at the hospital. Both Acela Moreno and Manuel Velez were charged with his murder.
Acela Moreno was a natural suspect. She had admitted to biting the child on the face, and burning him on his feet with cigarettes (she claimed accidentally); she was known for abusing her children. But she turned the tables on Manuel, and told the police that the child only started suffering various injuries — burns, bite marks, and bruises – when they had moved in with Manuel only two weeks before that fateful Halloween day. Before that, Moreno claimed, the child had no injuries. And before that, Manuel had been in Tennessee for weeks working construction.
By testifying against Manuel, Moreno escaped capital murder charges, and was able to plead guilty only to injury to a child with a 10-year sentence. She was out of prison in five years. Meanwhile, the state took Manuel to trial for capital murder.
The state’s case hinged not only on Moreno’s testimony but on medical experts who examined the child’s body and claimed there were no injuries older than two weeks. In particular, they focused on head injuries, including skull fractures. Again, this implicated Manuel, with whom the child and Moreno had been living for roughly two weeks. Manuel was convicted and sentenced to death in 2008. Moreno left prison in 2010.
The ACLU took Manuel Velez’s appeal to the Texas Court of Criminal Appeals, which found the state had relied on false testimony of a so-called “prison expert” to convince the jury to return a death sentence. The court appeared skeptical about the state’s ambiguous evidence of Manuel’s guilt, but left intact his capital murder conviction. The case would be sent back to the trial court for a new jury to determine if Manuel could again be sentenced to death.
In the meantime, a second appeal has now shown the medical evidence on which the state relied was faulty, and went unchallenged at the first trial due to the incompetence of his defense counsel, a lawyer with a known drinking problem. The appeal is supported by the affidavits of numerous experienced experts who examined Angel Moreno’s records and determined that his pediatrician, in 2005, had documented a ballooning of the head circumference – a telltale sign of head trauma – more than three months before his death. Consistent with those records, microscopic examination of the child’s skull fractures done as part of the autopsy process showed the fractures to be significantly older than the two weeks the state had claimed at trial. If that is true, then these were injuries that could not have been inflicted by Manuel Velez, who was not in the state of Texas at that time.
Today, I am en route to Brownsville, via the Houston area, where I will visit other clients on Texas’s death row, and where just a few years ago I first met Manuel Velez, an innocent man.
Starting tomorrow, a Brownsville District Court Judge will hold an evidentiary hearing on the new evidence of Manuel’s innocence, as well as the reasons his incompetent trial attorney failed to produce this evidence at trial.
If the judge agrees with the defense case, Manuel could become the 13th prisoner exonerated from Texas’s death row.
I will be on hand for the hearing this week, in support of Manuel and the attorneys handling his innocence hearing.
By Nimrah Siddiqui
ACLU of Texas Volunteer
Americans expect that they will not be found guilty without a fair trial. A similar principle applies to sentencing of individuals found guilty of a capital offense which, according to our laws, includes the opportunity to provide evidence that the death penalty is too harsh in the circumstances of their case. On August 22, 2012 the U.S. Supreme Court stopped the execution of John Balentine for precisely this reason. The cancellation came just one hour before his execution was set to take place.
Balentine’s lawyer, Lydia Brandt, has argued that extenuating conditions in his childhood, such as violence and delayed emotional development, were not considered when the district court of Potter County handed him the death penalty. According to Brandt, Balentine’s lawyers in his original trial and early appeals failed to present evidence that could have persuaded jurors to give him a life sentence. Brandt cited a recent court ruling from Arizona regarding the issue of ineffective counsel, Martinez v. Ryan, to request a review of his case.
There are two phases in the death penalty trial. First, the jury decides whether the defendant is guilty. If the jury finds the defendant guilty, then the jury decides the punishment. This is called the sentencing phase. In the sentencing phase, attorneys can present mitigating evidence to prove that the defendant should not have to face the death penalty. The majority of death penalty cases involve defendants who have experienced extraordinary circumstances, such as traumatic life experiences or intellectual disabilities, that sometimes convince jurors the death penalty isn’t deserved.
While the system allows for the presentation and consideration of mitigating evidence, the system is also plagued by “randomness” and wantonness, according to a 2011 report from the Death Penalty Information Center (DPIC). The report looks at how capital cases are arbitrarily assessed and reveals how factors other than the severity of the crime or the guilt of the criminal can influence the decision to use the death penalty.
Ineffective legal representation often plays a role in death penalty cases, as well. In many cases, defendants who are unable to pay are represented by inexperienced or over-burdened attorneys. The DPIC has compiled a long list of cases in which the competency of the lawyer or the right to an attorney is at issue.
The Texas Defender Service is an organization that works toward access to competent defense and ensuring a fair criminal justice system in Texas. There current cases of interest include Duane Buck, Marcus Druery, Yokamon Hearn, Ricky Kerr, and Scott Panetti.
John Balentine was the fifth prisoner on Texas’ death row to receive a stay of execution in 2012. There are nine more executions scheduled this year, with two scheduled in September. Robert Harris is scheduled to be executed September 20th, and Cleve Foster is scheduled for execution September 25th.
By Gislaine Williams
Statewide Advocacy Coordinator
Community advocates gathered in vigils across the state yesterday as Texas carried out the controversial execution of Marvin Wilson Tuesday evening. The United States Supreme Court refused to stop the execution, despite significant evidence that Mr. Wilson was intellectually disabled. In its 2002 case Atkins v Virginia, the Court ruled that executing people with intellectual disabilities violates the Eight Amendment’s ban on cruel and unusual punishment.
With an IQ of 61, Mr. Wilson was declared intellectually disabled by a board-certified neuropsychologist. Texas argued that Wilson was not intellectually disabled using its own standards, known as the “Briseño factors” – standards that are not used by medical professionals and that the American Association on Intellectual and Developmental Disabilities called “fundamentally incompatible with the scientific and clinical understanding of intellectual disability.”
The family of author John Steinbeck also issued an appeal to stop the execution. The Texas Court of Criminal Appeals used Lennie Small, a mentally handicapped character in Steinbeck’s novella Of Mice and Men, as a benchmark in the case establishing the Briseño factors. Thomas Steinbeck wrote that his father’s “work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability.”
Lee Kovarsky, attorney for Mr. Wilson, released this statement once the US Supreme Court denied a stay of execution:
We are gravely disappointed and profoundly saddened that the United States Supreme Court has refused to intervene to prevent tonight’s scheduled execution of Marvin Wilson, who has an I.Q. of 61, placing him below the first percentile of human intelligence. Ten years ago, this Court categorically barred states from executing people with mental retardation. Yet, tonight Texas will end the life of a man who was diagnosed with mental retardation by a court-appointed, board certified specialist. Read the full statement.
Mr. Wilson, 54, was sentenced to death for the 1992 murder of Jerry Williams. His execution marks the 484th execution in Texas since the death penalty was reinstated in 1976. It is the 245th execution under Governor Rick Perry. There are currently nine more executions scheduled for 2012.
Learn more about the Texas death penalty at the Criminal Law Reform campaign website.
Tell Texas to stop executions: Take action here
Find a vigil near you: Texas Coalition to Abolish the Death Penalty vigil schedule
By Nimrah Siddiqui
Texas is once again set to execute a man who may be mentally disabled.
Marvin Wilson is scheduled to be executed by the State of Texas on Tuesday, August 7th for the murder of Jerry Robert Williams. Mr. Wilson’s lawyers have challenged the constitutionality of his execution because he has been declared intellectually disabled. The United States Supreme Court, in Atkins v. Virginia (2002), declared that executing persons with diminished intellectual ability is cruel and unusual punishment because, as most states recognize, their mental impairments make them less culpable.
Mr. Wilson, now 54, is a native of Beaumont, Texas. His intellectual disabilities have prevented him from achieving in school, keeping jobs, and sometimes even taking care of himself. A court-appointed neuropsychologist submitted a report in 2004 that diagnosed him with mental disabilities, measured his I.Q. at 61 (less than 70 signifies “significant impairment”), and noted that he had demonstrated impaired skills before the age of 18. Despite all the signs of Mr. Wilson’s intellectual disabilities and the diagnosis of the court-appointed neuropsychologist, the District Court of Jefferson County concluded that Mr. Wilson is not mentally retarded.
In Atkins v Virginia, the Supreme Court defined intellectual disability using clinical criteria from the American Association on Mental Retardation (now known as the American Association on Intellectual and Developmental Disabilities or “AAIDD”). The Court, however, did not lay down specific standards that states have to use to determine intellectual disability. As a result, states can come up with their own standards identifying whether offenders qualify as mentally disabled and what punishments may be used against them.
Texas, known for its aggressive use of the death penalty, adopted its own set of criteria called the Briseño factors, to address and interpret Atkins. These factors, however, are not supported by the AAIDD and are not used in the scientific community. In fact, the AAIDD criticized the Briseño factors in another case (Chester v. Thaler), stating that the test is “impressionistic,” and uses criteria “based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.”
Mr. Wilson’s case highlights the problems with Texas’ use of the death penalty for defendants with intellectual disabilities. Does the state of Texas have any scientific basis for using the Briseño factors?
Mr. Wilson’s lawyers have filed a petition with the US Supreme Court to stop the execution, questioning the use of the Briseño factors. The AAIDD has also spoken out about the case and has asked the State of Texas to stop the execution.
Learn more about the case: Amnesty International Fact Sheet Marvin Wilson (PDF)
Tell the State of Texas to stop the execution: Take Action Here
Tell Texas legislators to end the death penalty: View a sample letter.