History > 2013 > USA > Justice > Death penalty (I)

Texas Plan to Execute Mexican

May Harm U.S. Ties Abroad,

Kerry Says

December 11, 2013
The New York Times
By MANNY FERNANDEZ

HOUSTON — The scheduled execution next month of a Mexican national by the State of Texas threatens to damage relations between the United States and Mexico and complicate the ability of the United States to help Americans detained overseas, Secretary of State John F. Kerry has warned Texas officials.

The Mexican, Edgar Arias Tamayo, 46, was convicted of shooting and killing a Houston police officer who was taking him to jail after a robbery in 1994. Mr. Tamayo, who was in the nation illegally, was not notified of his right to contact the Mexican Consulate, in violation of an international treaty known as the Vienna Convention on Consular Relations. That violation, an international tribunal’s order for his case to be reviewed and a judge’s recent decision to set Mr. Tamayo’s execution for Jan. 22, are now at the center of a controversy that has attracted the attention of the State Department and the Mexican government.

Despite Mr. Kerry’s involvement, there has been no sign that Texas officials plan to delay the execution. On Wednesday, Mr. Tamayo’s lawyers asked Gov. Rick Perry to grant him a 30-day reprieve and petitioned the Texas Board of Pardons and Paroles to commute his death sentence to life in prison. They are using Mr. Kerry’s letter, sent to Texas officials in September, to highlight the international issues at stake.

In 2004, the top judicial body of the United Nations, the International Court of Justice, ordered the United States to review the convictions of Mr. Tamayo and 50 other Mexican nationals whose Vienna Convention rights, it said, were violated and who were sentenced to death in the United States. The international court, also known as the World Court, found that United States courts had to determine in each case whether the violation of consular rights harmed the defendant. In the nine years since the World Court’s decision, no United States court has reviewed the Vienna Convention issues in Mr. Tamayo’s case, said Maurie Levin, one of his lawyers.

In a letter sent to Mr. Perry and the Texas attorney general, Mr. Kerry took the unusual step of weighing in on a state death-penalty case, arguing that Mr. Tamayo’s execution would affect the ability of the United States to comply with the international court’s order in what is known as the Avena case. The World Court’s judgment is binding on the United States, Mr. Kerry wrote, and complying with it ensures that the federal government can rely on Vienna Convention protections when aiding Americans detained abroad.

“I have no reason to doubt the facts of Mr. Tamayo’s conviction, and as a former prosecutor, I have no sympathy for anyone who would murder a police officer,” Mr. Kerry wrote, describing his concern as a “process issue” that could impact the way Americans are treated overseas. “Our consular visits help ensure U.S. citizens detained overseas have access to food and appropriate medical care, if needed, as well as access to legal representation.”

Mr. Kerry also shared with Mr. Perry and the Texas attorney general, Greg Abbott, a letter sent to him earlier this year by Mexico’s ambassador to the United States, Eduardo Medina Mora, who wrote that “this issue has become and could continue to be a significant irritant in the relations between our two countries.”

Texas officials, including Mr. Perry, have argued that the state is not directly bound by the World Court’s decision and that it is a matter best handled by federal officials and Congress, where legislation ordering the states to comply with the tribunal’s judgment is pending. “It doesn’t matter where you’re from — if you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty,” Lucy Nashed, a spokeswoman for Mr. Perry, said when asked to respond to Mr. Kerry’s letter.

In 2008, Texas executed another Mexican national, José E. Medellín, who was part of the Avena case and was convicted in the rape and murder of two teenage girls in Houston. Before Mr. Medellín’s execution, President Bush ordered Texas and other states to review the convictions of Mr. Medellín and the other Mexican nationals whose consular rights were violated. But the Supreme Court ruled in 2008 that the president had no authority to order state courts to abide by the World Court’s decision, agreeing with the arguments made by Texas’s then-solicitor general, Ted Cruz, now one of its senators in Washington.

Mr. Medellín was executed four months after the Supreme Court’s ruling in Hunstville, Tex., site of the state’s death chamber, the busiest in the country. In his 2010 book, “Fed Up! Our Fight to Save America from Washington,” Mr. Perry wrote that three justices did not agree with the state’s position, “perhaps believing instead that international law should trump the laws of Texas.”

    Texas Plan to Execute Mexican May Harm U.S. Ties Abroad, Kerry Says,
    NYT, 11.12.2013,
    http://www.nytimes.com/2013/12/12
    /us/texas-plan-to-execute-mexican-may-harm-us-ties-abroad-kerry-says.html

Delbert Tibbs,

Who Left Death Row

and Fought Against It,

Dies at 74

December 7, 2013
The New York Times
By BRUCE WEBER

It is not easy:

you stand waiting for a train

or a bus that may never come

no friend drives by to catch a ride

cold, tired:

call yourself a poet

but work all day mopping floors and looking out for thieves.

Those lines, describing the experience of an innocent man on death row, are from a poem by Delbert Tibbs, who in 1974 was convicted in Florida of a rape and a murder that he had nothing to do with, it was later found. He spent nearly three years in prison before the State Supreme Court reversed his convictions, vacated his death sentence and freed him.

Mr. Tibbs then campaigned for the abolishment of capital punishment and became one of six people whose stories of wrongful conviction and near execution were told in “The Exonerated,” a play by Jessica Blank and Erik Jensen, who assembled their script from court documents, testimony, depositions and letters.

First presented in 2002 in Los Angeles and New York with celebrity-studded casts, the play went on to help reshape the national debate about the death penalty, reaching audiences in productions across the country and then on television in a filmed adaptation starring Susan Sarandon, Brian Dennehy, Aidan Quinn, Danny Glover and, as Mr. Tibbs, Delroy Lindo.

“People who once argued about the morality of executing the guilty now discuss whether the capital justice system can be trusted to separate those deserving death from the wholly innocent,” Adam Liptak wrote in The New York Times in 2005 in assessing the play’s impact.

Mr. Tibbs, whose poetic bent led Ms. Blank and Mr. Jensen to use his character as a kind of Greek chorus, introducing and closing the play and appearing intermittently throughout as a sagelike figure, died on Nov. 23 at his home in Chicago. He was 74.

His death was confirmed by Andrea Lyon, a law professor at DePaul University who is godmother to Mr. Tibbs’s daughter Mahalia. Professor Lyon said that the cause was uncertain but that Mr. Tibbs had had cancer.

The crimes for which he was arrested occurred in Fort Myers, on Florida’s southwest coast, on Feb. 3, 1974. A teenager, Cynthia Nadeau, was raped, and her boyfriend, Terry Milroy, who was in his 20s, was shot to death. Ms. Nadeau’s story was that while hitchhiking, they were attacked by a black man who had picked them up in a green truck. The couple were both white.

Mr. Tibbs was rootless at the time, though not a drifter so much as a seeker. A former seminary student in Chicago, he had himself been hitchhiking around the country and had made his way to Florida. The case against him had holes. Evidence showed that he was in Daytona Beach on the day of the killing, 250 miles from Fort Myers, and Ms. Nadeau’s initial description of her assailant was at odds with Mr. Tibbs’s appearance. (She identified him from a photograph several days later.)

An all-white jury nevertheless found him guilty on the basis of Ms. Nadeau’s uncorroborated testimony and a cellmate’s claim that Mr. Tibbs had confessed to the killing in jail.

Mr. Tibbs received a life sentence for the rape and the death sentence for the murder.

But in the summer of 1976, citing the weakness of the evidence against him, the Florida Supreme Court reversed the verdict on appeal and ordered a new trial, saying it did not want to “risk the very real possibility that Tibbs had nothing to do with these crimes.”

He was released from prison in January 1977, and after further legal wrangling — Mr. Tibbs’s lawyers argued that a retrial would amount to double jeopardy — the state dropped its charges against him in 1982. (In 2002, state prosecutors nonetheless said they held to their belief in Mr. Tibbs’s guilt. No one else has been charged with the crimes.)

“I’m a Southern boy,” Mr. Tibbs said in an interview with the oral historian Studs Terkel for his book “Will the Circle Be Unbroken? Reflections on Death, Rebirth, and Hunger for a Faith,” published in 2001. “My rationale to them for being in the state was just that I wanted to roam across the country, which is typical of writers and artists and so forth, but it’s not typical of black people. It’s all right for Jack Kerouac, but not for Delbert Tibbs.”

Delbert Lee Tibbs was born in Shelby, Miss., on June 19, 1939. His father, Pete Johnson, was a traveling salesman. He was reared by his mother, Lillie Bryant, and her husband, Frank Tibbs, who were sharecroppers.

He moved to Chicago with family members when he was about 12 and, before he was 20, had married and had a son, Delbert Jr. The marriage ended in divorce. Mr. Tibbs is survived by his son; two daughters, Mahalia Abeo Tibbs and Afrika Rouselle; and three grandchildren.

Mr. Tibbs attended colleges in Chicago, including Chicago Theological Seminary, though he never finished a degree, and worked as an insurance claims adjuster. In the early 1970s, he left school and hit the road for the adventure that landed him on death row.

“I’d dropped out of the seminary and now I don’t know what to do with myself,” he told Mr. Terkel. “There was an agitation within my spirit, so I said, ‘Well, I’ll take off. I’ve never been anyplace except Mississippi, Michigan, Illinois and Indiana.’ I thought, you might not live that long anyway, so I took off and I took off walking.”

In recent years, Mr. Tibbs did volunteer work tutoring at-risk young black men. He also worked with anti-death penalty groups like Witness to Innocence, founded by the activist nun Helen Prejean and Ray Krone, a former death row inmate in Arizona who was exonerated in 2002, and the Illinois Coalition to Abolish the Death Penalty, which succeeded in its aim when Gov. Pat Quinn signed a bill repealing the state’s death penalty law in 2011 and commuted the sentences of 15 death row inmates. (The organization is now known as the Illinois Coalition Against the Death Penalty.)

“Delbert was not only articulate, which many exonorees seem to be, but he had this air of genteel thoughtfulness about him that greatly distinguished him,” Robert Warden, a founder of the Center on Wrongful Convictions at the Northwestern University Law School in Evanston, Ill., said in an interview.

As time passed, Mr. Tibbs grew more philosophical.

“When I meet people now,” he said more than 25 years after his release, “if they try to make a big deal about me having been on death row, I sometimes gently remind them that we’re all on death row.”

    Delbert Tibbs, Who Left Death Row and Fought Against It, Dies at 74,
    NYT, 7.12.2013,
    http://www.nytimes.com/2013/12/08/us/delbert-tibbs-who-left-death-row-
    and-fought-against-it-dies-at-74.html

Intellectual Disability

and the Death Penalty

October 22, 2013
The New York Times
By THE EDITORIAL BOARD

Eleven years ago, the Supreme Court banned the execution of intellectually disabled people in Atkins v. Virginia. Ever since, some states have worked to circumvent that ruling by defining intellectual disability using unscientific standards or by making it nearly impossible to prove. On Monday, the justices indicated that they may at last be ready to clarify the Atkins decision by agreeing to consider whether a Florida law defines intellectual disability too narrowly.

Freddie Lee Hall was sentenced to death for the 1978 murder of a 21-year-old pregnant woman, Karol Hurst. The Florida trial court found that Mr. Hall had been “mentally retarded his entire life,” but capital punishment was not then prohibited in such cases.

Mr. Hall appealed his death sentence following the 2002 Atkins ruling, which held that people with intellectual disabilities are less culpable because of their “reduced capacity” for understanding, reasoning and impulse control. But the Florida Supreme Court ruled against him because he scored between 71 and 80 on recent I.Q. tests, and state law requires a score of 70 or lower for a finding of intellectual disability.

Such a “bright line” I.Q. cutoff has been roundly rejected by mental-health experts, who say that the diagnosis of intellectual disability is complex and I.Q. tests are approximate measures but do not provide a complete picture. There is no magic score above which intellectual disability doesn’t exist.

Florida is far from alone in its efforts to undermine the court’s ruling. In Texas, the state’s highest criminal court decides whether a defendant is disabled enough to be executed by using unscientific standards based on outdated stereotypes. And in Georgia, defendants must prove intellectual disability beyond a reasonable doubt — an arguably unconstitutional standard no other state uses. In a promising development, the Georgia Legislature agreed last week to reconsider that standard. Rich Golick, a Republican state representative, said, “When you’re an outlier, you really ought not to stick your head in the sand.”

The Supreme Court is right to revisit its 2002 ruling, which gave states too much leeway to define intellectual disability. It should take this opportunity to reaffirm the central principle of Atkins and require states to adhere to medical consensus in defining intellectual disability.

    Intellectual Disability and the Death Penalty, NYT, 22.10.2013,
    http://www.nytimes.com/2013/10/23/opinion/
    intellectual-disability-and-the-death-penalty.html

Ministering on Death Row,

and Feeling a New Confidence in Rome

October 1, 2013
The New York Times
By JIM DWYER

This week, trailing a group of men walking through a prison, Sister Helen Prejean overheard bits of what they were discussing. “I heard one saying, ‘He is so honest,’ but I didn’t catch who they were talking about at first,” said Sister Prejean, a member of the Congregation of St. Joseph, an order of Roman Catholic sisters.

Then she figured it out from fragments that floated back to her, hearing mention of a man who admitted to having been excessively authoritarian as a boss, who washed the feet of women and prisoners and Muslims, and who had called for the Catholic Church to find a “new balance” in its teachings of moral concerns. The subject was Pope Francis.

The people talking about him were 12 bishops who were visiting California’s death row in San Quentin prison, the home to more than 700 condemned men.

“Francis’ whole style is so honest and forthright,” Sister Prejean said. “He just really says what he thinks. That’s what the bishops were commenting on. They’re not used to it.”

Who could be used to unvarnished comments like those published on Tuesday in the Italian newspaper La Repubblica? “The leprosy of the papacy,” Francis said, was the culture of the Vatican court that was devoted to cosseting popes in flattery.

For many American Catholics, especially for the women in religious orders, the new pope has been a jolting, rejuvenating presence. Just 18 months ago, a Vatican report on the largest organization of women’s religious orders in the United States declared that there were “serious doctrinal problems which affect many in Consecrated Life.” Among their faults, the report found, was that they had been insufficiently energetic in promoting Catholic teaching on abortion, sexuality and family life. The organization was put under the supervision of an archbishop selected by Rome.

Now there is a pope who has said that when it comes to abortion and same-sex marriage, “it is not necessary to talk about these issues all the time.” The church’s highest calling is to be with the poor, the oppressed and the marginalized in society, he said.

Which has been ground zero for the work of American Catholic religious women in the United States for decades.

Catholic sisters in New York are getting older, but their works meet enduring needs. They run homes for women just released from prison, feed drug addicts and prostitutes who gather under the Major Deegan Expressway, build homes for women who are victims of human trafficking.

Sister Prejean, the author of “Dead Man Walking,” an account of her ministry on Louisiana’s death row, is working her way across the country to the Convent of Mercy on Willoughby Avenue in Brooklyn, for a gathering on Sunday afternoon of the Cherish Life Circle, which Sister Camille D’Arienzo founded 20 years ago. The group ministers to people on death row and to the victims of crime.

“Camille embodies everything we’re talking about,” Sister Prejean said.

As it happens, Sister D’Arienzo is a former president of the Leadership Conference of Women Religious, the very organization that fell under Vatican scrutiny last year.

“I am pretty confident that this nonsense with the Vatican is going to go away,” Sister D’Arienzo said. “There is no way that we would relinquish our authority which is not in conflict, really, with anything the Vatican imposed.”

She had no intention of getting involved in direct death penalty ministry, but learned about a man imprisoned in Allenwood, Pa., who was scheduled to die in less than two months. A few weeks before the date, Sister D’Arienzo visited him. By mistake, they were led into a room with no barriers.

“He asked, ‘Why are you here?’ ” Sister D’Arienzo recalled. “I told him, ‘I couldn’t find anyone else.’ He burst out laughing.”

The man, David Paul Hammer, received a stay of execution. He has since drawn artwork used for Christmas cards that Sister D’Arienzo sells, raising $70,000 for a children’s school in Jamaica. She, too, has found Pope Francis to be a revitalizing presence, and is certain he will appreciate the complexity of working with castoff people.

“He is a holy man who has hugged the people that he has walked the streets with,” Sister D’Arienzo said. “He, more than anyone, will understand those of us who are committed to serving the people he cares so much about, those on the margins of society.”

Sister Prejean, in her travels, has felt an electricity about Francis. “ ‘I can’t believe we got this pope’ — that’s what people are saying,” she said. “He’s the second most Twittered guy in the world. This is the church alive. This is something we can believe in. He’s making it so attractive, he’s so blooming honest. It’s downright refreshing.”

    Ministering on Death Row, and Feeling a New Confidence in Rome,
    NYT, 1.10.2013,
    http://www.nytimes.com/2013/10/02/nyregion/
    ministering-on-death-row-and-feeling-a-new-confidence-in-rome.html

A Rare Plea to the Court

September 21, 2013
The New York Times
By JESSE WEGMAN

The Supreme Court’s next term is full of big-ticket issues — from campaign finance to affirmative action to the separation of powers — but a largely overlooked death-penalty appeal the court hasn’t agreed to hear yet could clarify how broadly it views its ultimate power to stop unjust executions.

In 1990 Warren Lee Hill beat a man to death with a nail-studded board, and the state of Georgia sentenced him to die.

Mr. Hill is intellectually disabled, according to all seven mental health experts who have examined him. The Supreme Court banned the execution of intellectually disabled people in 2002, but Mr. Hill remains on death row, trapped by a welter of state and federal laws that prevent him from proving his condition in court. He escaped execution in July only because a state court judge didn’t appreciate Georgia’s attempt to keep secret the drug protocol it planned to use to kill him.

One hurdle for Mr. Hill is that while four of the seven mental health experts originally found that he met the criteria for mild mental retardation, three did not. Georgia requires intellectual disability to be proved beyond a reasonable doubt — an arguably unconstitutional standard no other state uses. Presumably it is possible to meet this standard. Either way, Georgia courts said a four-three split was not enough. But last year the three experts against Mr. Hill recanted. Seven to zero sounds like a winner, but it didn’t matter, a federal appeals court said, since Mr. Hill was blocked by another law that strictly limits multiple appeals on the same claim.

So Mr. Hill filed a direct appeal to the Supreme Court — a rare request the court even more rarely grants — asking it to order the lower courts to weigh the new evidence. On Sept. 30, the court will consider whether to hear Mr. Hill’s petition. It has been reluctant in the past to exercise this power, but this case is exceptional. At stake is not only a man’s life, but the court’s own authority, which continues to be skirted by states like Georgia and Texas, where the 2002 ruling on intellectual disability is similarly subverted by an unscientific standard.

Mr. Hill’s case is as simple as it is unusual: there is compelling evidence that he is categorically ineligible to be executed, and he has nowhere else to turn.

    A Rare Plea to the Court, NYT, 21.9.2013,
    http://www.nytimes.com/2013/09/22/opinion/sunday/a-rare-plea-to-the-court.html

Racism in a Texas Death Case

May 10, 2013
The New York Times
By THE EDITORIAL BOARD

In the annals of racism in the Texas criminal justice system, seven death penalty cases are in a class by themselves. In 2000, after the Supreme Court ordered a new sentencing hearing in one of them, Senator John Cornyn, who was then the state attorney general, called for new sentencing hearings in the other cases for the same reason: because race was improperly and explicitly considered as a factor in determining the sentence.

Duane Buck, who was convicted of two murders, is the only one among the defendants who was not granted a new sentencing hearing. His post-conviction lawyers have uncovered a lot of mitigating evidence that his trial counsel did not present to the jury that sentenced him to death. He is seeking life without parole and is awaiting a decision on this matter by the Texas Court of Criminal Appeals.

Texas has long fought his request for resentencing because it insists that Mr. Buck is responsible for introducing race into his case. A psychologist called by the defense testified at the hearing that being black increased Mr. Buck’s “future dangerousness.” But this statement was elicited by the prosecutor on cross-examination and was used by the prosecutor in his closing argument to the jury. This egregious error clearly violated Mr. Buck’s constitutional rights. One of the prosecutors in the case has been campaigning for years against Mr. Buck’s execution.

The racial bias in this case reflects a wide and disturbing pattern in death penalty prosecutions in Harris County, Tex., where Mr. Buck was tried. A recent study found that from 1992 to 1999 the county prosecutor was three times as likely to seek the death penalty for blacks in murder cases as they were for whites, and juries were twice as likely to impose capital punishment. The Buck case is yet more evidence that capital punishment should be abolished.

    Racism in a Texas Death Case, NYT, 10.5.2013,
    http://www.nytimes.com/2013/05/11/opinion/racism-in-a-texas-death-case.html

A Stunning Error in Mississippi

May 6, 2013
5:39 pm
The New York Times
By LINCOLN CAPLAN

Mississippi is scheduled to execute Willie Manning on Tuesday for his 1994 conviction for two murders. Mr. Manning is seeking DNA testing of hair, fingernail scrapings and other evidence connected to the crimes. His lawyers argue that no physical evidence links him to the crimes and that DNA testing could prove him innocent and identify another killer.

But last week, by 5-4, the Mississippi Supreme Court approved the state’s motion to proceed with the execution, having denied Mr. Manning’s motion for DNA testing last month by the same vote.

Since 1989 in the United States, there have been 306 people exonerated by DNA evidence after they were convicted, 18 on death row. In seven previous cases, DNA testing has exonerated men convicted and imprisoned in Mississippi. In each case, the killer left DNA at the crime scene.

Last week, the Justice Department provided extraordinary grounds for the state to allow DNA testing in the Manning case. In a letter to the prosecution and defense, the department said that testimony of an F.B.I. analyst who was a key prosecution witness “exceeded the limits of the science and was, therefore, invalid.”

That analyst testified that he could match a hair found at the crime scene to an individual with “a relatively high degree of certainty” and that the hair fragments collected from a victim’s car “came from an individual of the black race.” The Justice Department concluded that it was “error for an examiner to testify that he can determine that the questioned hairs were from an individual of a particular racial group.”

The F.B.I. has now offered to do the DNA testing requested by Mr. Manning, who is black. One dissenting opinion from the Mississippi Supreme Court said, “In asking the jury to convict Manning, an African American, of the murder of two white students, the prosecution seems to have placed great emphasis on the fact that hair samples, originating from an African American” were found in the car. The prosecution, however, did not connect the hair to Mr. Manning. Clearly, the Justice Department’s letter makes the emphasis placed on the hair samples deeply problematic.

Mr. Manning’s lawyers went back to the Mississippi Supreme Court on Monday to ask that the court stay his execution and set aside his convictions based on the Justice Department’s acknowledgment that the F.B.I. analyst’s testimony was false. That new evidence is crucial and stunning. The court should stay the execution and let the DNA testing go forward, but if it does not, then Gov. Phil Bryant must do that.

The whole case underscores the often racially discriminatory application of the death penalty in cases where the victims are white and the defendants are black, one of many reasons that capital punishment should be abolished.

    A Stunning Error in Mississippi, NYT, 6.5.2013,
    http://takingnote.blogs.nytimes.com/2013/05/06/a-stunning-error-in-mississippi/

Victim and Prosecutor Back

Death Row Inmate’s Bid for Resentencing

March 28, 2013
The New York Times
By MANNY FERNANDEZ

HOUSTON — One morning in July 1995, Phyllis Taylor stood inside her best friend’s house here, face to face with her stepbrother. He was holding a .22-caliber rifle, his eyes bloodshot red. Then he pulled the trigger.

Ms. Taylor survived — the bullet came within one inch of her heart and lodged in her right shoulder. More than 17 years later, a scar the size of a nickel remains on her chest, but her anger has faded: She has forgiven her stepbrother, Duane E. Buck, 49, and has been trying to secure his release from Texas’ death row.

“This is not an easy thing,” said Ms. Taylor, 46, who visited him last month at the prison that houses death row in Livingston, Tex. “It’s very hard. I still have moments. But I know that I’m doing the right thing. The Bible says that I have to forgive, and that’s just my key to my everyday living.”

Ms. Taylor is part of an unusual network of supporters who have been trying to halt Mr. Buck’s execution. His advocates include leaders of the N.A.A.C.P., one of the lawyers who prosecuted him and a former governor of Texas. While many contested death-row cases center on guilt or innocence, Mr. Buck’s case is different — his guilt has never been disputed, but the testimony of a psychologist has raised questions about the role that race played in the jury’s decision to sentence him to die by lethal injection.

Mr. Buck, who is black, was convicted of killing his former girlfriend Debra Gardner and her friend Kenneth Butler at Ms. Gardner’s house the same morning in 1995 when he shot Ms. Taylor. Mr. Buck and Ms. Gardner had ended their relationship a week earlier, and he stormed into the house with a rifle and a shotgun. He shot Mr. Butler and then shot Ms. Gardner as she tried to flee outside, her two children looking on in horror, according to court documents.

At a sentencing hearing in May 1997, Walter Quijano, a former chief psychologist for the state prison system who had evaluated Mr. Buck, testified that race was one of several factors that could be used to predict whether a person would be a future danger to society. “It’s a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system,” Dr. Quijano said in the courtroom.

Dr. Quijano had been called to the stand by the defense, and ultimately found that the probability that Mr. Buck would commit future acts of violence was low. But under cross-examination, the prosecutor for the Harris County district attorney’s office asked him about the various factors. “You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons,” the prosecutor asked Dr. Quijano. “Is that correct?”

“Yes,” he replied.

In her closing argument, the prosecutor reminded the jury of the psychologist’s testimony. “You heard from Dr. Quijano, who had a lot of experience in the Texas Department of Corrections, who told you that there was a probability that the man would commit future acts of violence,” she said.

Last week, a statement calling for a new sentencing hearing for Mr. Buck that was signed by Ms. Taylor and dozens of others — including another of the prosecutors who had helped convict him, Linda Geffin — was delivered to the Harris County district attorney, Mike Anderson. It was handed to him by Mark W. White Jr., a governor of Texas in the 1980s.

Mr. White and Mr. Buck’s lawyers said that they believed his death sentence was a product of racial discrimination, and that Dr. Quijano’s testimony — and the prosecutor’s emphasis on that testimony — made the color of Mr. Buck’s skin a factor in the jury’s deliberations, violating his constitutional rights. In addition to their claims of racial bias, they said Texas was failing to follow through on a promise it had made to Mr. Buck.

In 2000, the attorney general at the time, John Cornyn, identified six capital cases in which Dr. Quijano had presented race-based testimony. Mr. Cornyn, now a United States senator from Texas, admitted that the state had erred in relying on such testimony in those and other cases, and that it was “inappropriate to allow race to be considered as a factor in our criminal justice system.”

Mr. Buck’s case was among the six. But he is the only defendant who has not been granted a new sentencing hearing. The others had all been on death row, and were ultimately resentenced to death after their new hearings. The state has opposed Mr. Buck’s attempts to receive a new hearing, but did not oppose the requests for new hearings made by the five other defendants.

“I think that’s what’s caused the outrage,” said a lawyer for Mr. Buck, Kate Black. “Not only was race used, but they promised to rectify the situation, and then did for five individuals, but not for him.”

Mr. Buck’s lawyers have filed an appeal, and are awaiting a ruling from the Court of Criminal Appeals.

It was the latest twist in his years of seeking a new sentence. In September 2011, the United States Supreme Court granted a last-minute temporary stay of execution — Mr. Buck had eaten his last meal when he got the news — but ultimately denied his appeal.

Justice Samuel A. Alito Jr., who wrote the majority decision, called Dr. Quijano’s testimony “bizarre and objectionable.” But he wrote that the psychologist was called as a defense witness, and that Mr. Buck’s lawyers, not the prosecutor, first presented Dr. Quijano’s race-based testimony to the jury.

In court papers, lawyers for Attorney General Greg Abbott have made similar arguments, writing that Mr. Buck’s “constitutional rights were not violated because Buck himself presented the testimony about which he complains.”

Mr. White, a Democrat who oversaw the executions of 19 people as governor from 1983 to 1987, disagrees. “It’s a racially charged statement that has tainted the deliberations of the jury,” he said. “It doesn’t matter which side said it. It’s kind of like, once you got the skunk in the jury box, it doesn’t matter who presented the witness.”

Dr. Quijano remains a state-licensed psychologist who testifies in criminal cases and has an office in Conroe, Tex. In an interview, he stood by his testimony, saying that his comments have been distorted and adding that he never said Mr. Buck would be a continuing threat because he is black.

“I was asked a question whether there is a relationship between race and violence or dangerousness,” he said. “The literature suggests that there is a correlation. So I had to say yes.” He added: “It’s not because of the blackness of the person that is causing the violence. It is what goes with it. Poverty, the exposure to lack of education, exposure to criminal elements.”

Dr. Quijano said research supporting his views included the work of John Monahan, a psychologist and professor at the University of Virginia Law School and expert in the clinical prediction of violent behavior.

Dr. Monahan, however, said in an interview that the literature did not support more than a trivial association between race and recidivism. “When you take into account the major risk factors for criminal recidivism, such as the number of prior convictions, age at first arrest, unemployment, education and substance abuse, race plays at most an extremely small role in predicting whether an offender will commit another violent crime,” he said.

    Victim and Prosecutor Back Death Row Inmate’s Bid for Resentencing,
    NYT, 28.3.2013,
    http://www.nytimes.com/2013/03/29/us/
    texas-death-row-inmates-resentencing-bid-has-support-of-victim-and-prosecutor.html

A Death Penalty Fight Comes Home

February 5, 2013
The New York Times
By SCOTT SHANE

ANNAPOLIS, Md. — Kirk Noble Bloodsworth, a beefy, crew-cut man whose blue T-shirt read “Witness to Innocence,” took the microphone in a church hall here and ran through his story of injustice and redemption one more time. Twenty years ago, he walked out of a Maryland prison, the first inmate in the nation to be sentenced to death and then exonerated by DNA.

About 60 activists against the death penalty listened with rapt attention, preparing to descend on state legislators to press their case. Maryland appears likely in the next few weeks to join the growing list of states that have abolished capital punishment. Some longtime death penalty opponents say no one in the country has done more to advance that cause than Mr. Bloodsworth. But ending executions in Maryland, the state that once was determined to kill him, would be a personal victory for him.

Even for proponents of capital punishment, Mr. Bloodsworth’s tale is deeply unsettling. In 1984, he was a former Marine with no criminal record who had followed his father’s profession as a waterman on the Eastern Shore of Maryland. A woman glimpsed on television a police sketch of the suspect in the rape and murder of a 9-year-old girl outside Baltimore. She thought it looked like her neighbor Kirk, and she called the police.

From there, with the police and prosecutors under intense pressure to solve the crime, it was a short route to trial, conviction and a death sentence for a man whose Dickensian name, after all, seemed to imply guilt.

“I was accused of the most brutal murder in Maryland history,” Mr. Bloodsworth, now 52, told the church audience. “It took the jury two and a half hours to send me to the gas chamber.”

Only after nine years in the state’s most decrepit and violent prisons did Mr. Bloodsworth, through his own perseverance and some aggressive lawyering, manage to get the still-novel DNA test that finally proved his innocence in 1993.

Even then, prosecutors publicly expressed doubt about his innocence. “Nobody knew what DNA was then — it was sort of shaman science, a ‘get out of jail free’ card,” he said in an interview. It took another decade — and, again, Mr. Bloodsworth’s own dogged efforts — before officials ran the DNA from the murder scene through a database and identified the real killer, who is now serving a life sentence. He bore little resemblance to the description that the police had compiled from eyewitnesses.

Mr. Bloodsworth said he kept pursuing the test to clear himself once and for all, but also to find the killer of the girl, Dawn Hamilton, who was found in the woods stripped of clothing from the waist down, her head crushed with a piece of concrete. “This was a ghastly, horrific thing,” he said.

Even after his release, Mr. Bloodsworth could never quite escape the false charges that had threatened him with execution. He tried to return, he said, to “a normal life,” but he was haunted by what he had learned about the justice system.

“If it could happen to me, it could happen to anybody,” he said. He threw himself into work against capital punishment and for justice reform, first as a volunteer speaker and later as a professional advocate. Last month he began work as the advocacy director for Witness to Innocence, a Philadelphia-based coalition of exonerated death row inmates who push to end capital punishment.

The movement to end the death penalty has garnered more support from politicians and the public as it has shifted from moral condemnation of capital punishment to a more practical argument: that mistakes by witnesses and the police inevitably mean that innocent people will be executed. While DNA gets the limelight, of 142 prisoners sentenced to death and then exonerated in the last 40 years, just 18 were freed over DNA evidence, according to the Death Penalty Information Center in Washington.

Use of the death penalty has been steadily declining, and 17 states no longer have it on the books, with 5 of them abolishing it since 2007, said Richard C. Dieter, the center’s executive director. Executions dropped to 43 last year from 98 in 1999.

“These innocence cases are the biggest single factor, because it has spread doubt throughout the system,” Mr. Dieter said.

Mr. Bloodsworth, a tireless public speaker who has visited state after state to lobby for repeal, handing out a 2004 book on his case, called “Bloodsworth,” has used his own experience to promote those doubts. “I think no single individual has changed as many minds as Kirk,” said Jane Henderson, the director of Maryland Citizens Against State Executions, a lobbying group. “He’s articulate, patient, and he’s got a huge heart.”

His homespun eloquence has unmistakable appeal, but his own tale is his most powerful argument. Prosecutors and jurors ignored glaring problems with witnesses — two were boys who did not pick Mr. Bloodsworth out of a lineup — and dismissed five alibi witnesses who testified that he was home at the time of the murder.

“The adversarial system doesn’t know who’s guilty or who’s innocent,” Mr. Bloodsworth said. “The millstone does not know who’s under it.”

At the Maryland Penitentiary in Baltimore, he could stretch out his arms and touch the sides of his cell. He stuffed paper in his ears at night to keep the cockroaches out. His skull was cracked by another inmate who swung a sock stuffed with batteries. He was still locked up when his mother died.

After his release, he was pardoned and was paid $300,000 in compensation by the state. But even as he worked for death penalty abolition in other states, he became a regular visitor to Annapolis, pressing legislators to learn from his case. “I’m a walking reminder for them,” he said.

Delegate Barbara A. Frush, a Maryland legislator for 19 years, said a visit from Mr. Bloodsworth two years ago changed her mind about capital punishment, which she had long favored. “I sat across the desk from him and looked in his eyes and listened to his story,” she said. “It sent shivers down my spine. I thought, I can’t take the chance that I might send an innocent man to death.”

This week, for the first time, he had a private visit with the longtime president of the State Senate, Thomas V. Mike Miller Jr., who has decided to allow a floor vote on the repeal bill. Mr. Bloodsworth left the meeting more optimistic than ever.

From time to time, he has heard from the people who sent him to prison. A juror got in touch to apologize. One of the two lead homicide detectives sought him out; “it seemed like he wanted absolution,” Mr. Bloodsworth said. One of the prosecutors, S. Ann Brobst, who had called him “a monster” at trial, insisted on driving to the Eastern Shore to give him in person the news of the DNA hit on the actual murderer.

At the church hall, he turned from his own story to the prospects for action in Maryland.

“What do you smell?” he bellowed.

“Victory!” the advocates yelled back.

“It’s time to close the case,” Mr. Bloodsworth declared, raising his arms in anticipation.

    A Death Penalty Fight Comes Home, NYT, 5.2.2013,
    http://www.nytimes.com/2013/02/06/us/
    exonerated-inmate-seeks-end-to-maryland-death-penalty.html

America’s Retreat From the Death Penalty

January 1, 2013
The New York Times


When the Supreme Court reinstated the death penalty in 1976, it said there were two social purposes for imposing capital punishment for the most egregious crimes: deterrence and retribution. In recent months, these justifications for a cruel and uncivilized punishment have been seriously undermined by a growing group of judges, prosecutors, scholars and others involved in criminal justice, conservatives and liberals alike.

A distinguished committee of scholars convened by the National Research Council found that there is no useful evidence to determine if the death penalty deters serious crimes. Many first-rate scholars have tried to prove the theory of deterrence, but that research “is not informative about whether capital punishment increases, decreases, or has no effect on homicide rates,” the committee said.

A host of other respected experts have also concluded that life imprisonment is a far more practical form of retribution, because the death penalty process is too expensive, too time-consuming and unfairly applied.

The punishment is supposed to be reserved for the very worst criminals, but dozens of studies in state after state have shown that the process for deciding who should be sent to death row is arbitrary and discriminatory.

Thanks to the Innocence Project and the overturning of 18 wrongful convictions of death-row inmates with DNA evidence and the exonerations of 16 others charged with capital crimes, the American public is increasingly aware that the system makes terrible mistakes. Since 1973, a total of 142 people have been freed from death row after being exonerated with DNA or other kinds of evidence.

All of these factors have led the states to retreat from the death penalty in recent years — in both law and in practice. In 2012, Connecticut became the fifth state in five years to abolish the penalty. Nine states executed inmates, the fewest in two decades. Three-fourths of the 43 executions in 2012 were carried out in only four states. The number of new death sentences remained low at 77 — about one-third the number in 2000 — with just four states accounting for almost two-thirds of those sentences. While 33 states retain the death penalty on their books, 13 of them have not executed anyone for at least five years.

Those 13 states plus the 17 without the penalty means that 30 states are not carrying it out — and that includes California, which retained the death penalty in a November referendum vote. Almost one-quarter of the 3,146 death row inmates in the United States, as of October, are imprisoned in California, but that state has not executed anyone in seven years.

California’s chief justice said recently that the state’s official moratorium, which has been in place for six years, is likely to continue for at least three more because of problems with the execution method.

In January, executions are scheduled to take place in Pennsylvania, Virginia and Texas. As it happens, major reviews of the death penalty are under way in each of those states. The reviews are very likely to find that those states have failed to meet standards of fairness under the Constitution, just as reviews of the capital systems in other states have concluded in the last decade.

The large number of states no longer carrying out executions indicates a kind of national consensus. It points to “the evolving standards of decency that mark the progress of a maturing society,” an idea that the Supreme Court has evoked in judging the constitutionality of punishments. The court used that analysis most recently when it ruled that mandatory life sentences without possibility of parole are unconstitutional for juvenile offenders even if they are convicted of homicide.

It should similarly recognize that under evolving standards capital punishment is cruel and unusual and should be abolished.

    America’s Retreat From the Death Penalty, NYT, 1.1.2013,
    http://www.nytimes.com/2013/01/02/opinion/
    americas-retreat-from-the-death-penalty.html

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