Texas Court of Criminal Appeals soils itself again

May 25, 2015

The Texas Court of Criminal Appeals soiled itself again after its recent shameful refusal to find Dan and Frances Keller innocent of sexually assaulting children during satanic rituals in their Austin day care center case despite not a shred of physical evidence to support the fantastical false allegations. I wrote about the Keller case here.

This time they suspended David Dow from practicing in their court for a year for missing a deadline that he did not miss. He is the founder of the Texas Innocence Network and the leading death penalty lawyer in the state. Wrongfully convicted innocent clients on death row are depending on him to save their lives. He’s the best shot they have.

Mimi Schwartz of the Texas Monthly describes what happened.

It isn’t easy to get a stay of execution; attorneys have to present the court with a substantial amount of information to win a delay, much less a new trial. For instance, in September 2014 Dow began looking into the case of Miguel Paredes, who was sent to death row for a gang-related killing in 2001. Paredes’s execution date was set for October 28, 2014. In the 39 days before the execution, Dow’s team—which was working on three other death penalty cases at the time—traveled to San Antonio (where Paredes grew up and the crime was committed) and to Livingston (where he was incarcerated in the Polunsky Unit of the Texas Department of Criminal Justice). They searched for additional witnesses. They scoured Paredes’s medical, psychological, school, and prison records. They pored over the trial transcript. In doing so, they uncovered what Paredes’s lawyer had not: evidence that the killing was actually in self-defense. Dow’s team also found that Paredes had a history of mental illness and that the state had put him on powerful psychotropic medication during his trial. The jury hadn’t known any of this, and during the punishment phase, Paredes, drugged and hopeless, instructed his lawyer to waive his right to present mitigating circumstances that might spare his life.

Eleventh-hour appeals—the kind you see in the movies—no longer happen. The CCA needs time to evaluate the record and any new information. Dow filed all of his pleadings in Paredes’s case by 6:30 p.m. on October 21, 2014, in compliance with rule 11-003, which says that pleadings requesting a stay must be filed seven days before an execution date. The judges took exactly two days to deny Dow’s motion. Paredes was put to death, right on schedule.

In November, however, the CCA sent a notice to Dow asking him to appear in court on January 14 to explain why he should not be sanctioned for filing Paredes’s documents late. Dow found this mystifying; he had filed his plea after-hours on October 21, but late filings on death penalty cases are actually fairly routine. There is even a part of the rule that addresses it, which Dow had followed, explaining in his motion that he was still gathering evidence even at that late date to try to save Paredes’s life.

Dow appeared at the hearing without counsel. He explained again why the filing had been late, even though it really hadn’t been. (Instead of relying on the rule itself, the judges seemed to be claiming that Dow had been late according to an example described in the rule, which seemed to suggest that pleadings should be filed eight, not seven, days before: “For example, a request for a stay of execution filed at 8 a.m. on a Wednesday morning when the execution is scheduled for the following Wednesday at 6 p.m. is untimely.”)

He has appealed to the Texas Supreme Court. God only knows what that puzzle palace will do.

 


Texas court bars inmate’s claim that he was sentenced to death because he is black

November 24, 2013

Sunday, November 24, 2013

Good morning:

By a vote of 6-3, the Texas Court of Criminal Appeals has rejected Duane Bucks’s request to vacate his death sentence and remand his case to the trial court for a new sentencing hearing. Mr. Buck was sentenced to death by a Harris County jury for the 1995 murder of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. He has admitted that he shot them to death in a jealous rage and does not challenge the conviction.

Mr. Buck challenges the death sentence because of the testimony of the prosecution’s controversial expert witness, Walter Quijano, regarding future dangerousness, a factor that the jury was instructed to consider in determining whether to sentence him to death.

Matthew Fleisher has the story:

Asked during his testimony if “the race factor, black,” increased Buck’s risk of re-offending, Quijano answered, “Yes.” He went on to testify that being either African-American or Latino “increases the future dangerousness for various complicated reasons.”

/snip/

What Quijano didn’t mention was that “the race factor, black,” also greatly increases one’s likelihood of being executed in Texas, where blacks are about three times more likely to get death penalty sentences for committing the same crimes as white people, according to University of Maryland professor Ray Paternoster.

Harris County, Texas, in which Houston is located, leads the state in executions with 100.

Because Mr. Buck asserted his claim in his second application for a writ of habeas corpus in violation of the rule that limits inmates to one application, the six-judge majority dismissed his appeal without considering the merits of his argument.

Judge Alcala, joined by judges Price and Johnson wrote a stinging 30-page dissent in which he said,

I respectfully dissent from the Court’s dismissal of applicant’s second subsequent application for a writ of habeas corpus. The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment phase. Applicant’s initial habeas counsel was so incompetent as to assert not even one arguably legitimate claim in the initial 11.071 application, which was summarily denied by this Court for raising only record-based or frivolous claims. As a result of prior habeas counsel’s errors and the combined force of state and federal procedural-default laws, no Court has ever considered the merits of applicant’s legitimate claims for post-conviction relief. This cannot be what the Legislature intended when it enacted Article 11.071 to provide capital habeas litigants “one full and fair opportunity to present all [] claims in a single, comprehensive post-conviction writ of habeas corpus[.]” See Ex parte Graves, 70 S.W.3d 103, 117 (Tex. Crim. App. 2002).

Since expert witnesses who predict that an inmate will be a danger to others, if released, are wrong 95% of the time, I would ban consideration of future dangerousness in all sentencings.

Whores like Quijano should be in prison instead of masquerading as experts in predicting future dangerousness.

The author of the article, Matthew Fleischer, was awarded a Fund for Investigative Journalism grant for his series “Dangerous Jails.”

If you believe Duane Buck should get a new sentencing, please sign this petition that was started by Linda Geffin, a former prosecutor who tried his case.


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