[Deathpenalty] death penalty news-----TEXAS

[Rick Halperin]

Oct. 3



TEXAS:

A Strand of Evidence


The search for justice can lead to painful places. Just ask Dallas
law-enforcement officials, stung by a string of 13 DNA exonerations.

Each case involved a faulty prosecution; each involved a man who could
walk out of prison and clear his name.

An ongoing DNA case out of San Jacinto County involves a far more sobering
question: Did a jury send a man to his death based on faulty forensic
science?

A 1-inch strand of hair may hold the answer. A judge must decide after a
hearing this month whether to have it tested for the DNA of Claude Jones,
executed in December 2000 on a robbery-murder conviction.

Justice demands that the judge allow the test to proceed. It could
discredit the microscopic hair analysis used by the prosecution to put a
man on death row. In 208 DNA exonerations nationwide, once-accepted hair
analysis has been refuted by the latest DNA tests 40 times, according to
the New York-based Innocence Project.

The case in San Jacinto County, north of Houston, would be the first time
hair analysis had been exposed as faulty after a defendant's death. County
officials must be prepared for the fallout if the initial test proves
wrong. After all, we need to know everything we can about cases
prosecutors depicted as airtight.

Prosecutors argue that they brought evidence against the accused in
addition to the hair analysis, including crucial testimony from an
accomplice who was out to cut a deal. The DNA tests could lead to a rough
debate over whether such self-serving testimony should have been enough to
send a man to his death. (The accomplice got 10 years.)

Similar painful questions have bedeviled Collin County officials in the
infamous case against Michael Blair for the rape and killing of 7-year-old
Ashley Estell. He sits on death row even after DNA tests reversed
hair-analysis results that helped put him there.

Mr. Blair is a despicable person who deserves every minute of the life
sentence he is also serving for other sex crimes. But cases like these
with unresolved questions contribute to the public's growing uneasiness
with the death penalty.

(source: Editorial, Dallas Morning News)

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Conveyor belt of justice


Re: "Irving killer's reprieve may slow executions nationwide  But legal
experts don't expect moratorium as lethal injection reviewed," Saturday
news story.

I was dismayed to read the Texas Court of Criminal Appeals didn't
remaining open past 5 p.m. to hear a stay of execution for Michael
Richard.

No matter how one may feel about the death penalty, I find it egregious
that the court could not find 20 minutes to rule on a matter of life or
death, especially considering the fact that it was a computer crash that
prevented a timely filing of the necessary paperwork.

Equally disconcerting was the court's bland response that his lawyers know
the court's closing time is 5 p.m. Is Mr. Richard just another death row
inmate on the conveyor belt of Texas justice? Is Texas justice really just
another word for Texas revenge?

George Minton, Dallas

(source: Letter to the Editor, Dallas Morning News)

******************************

A cruel, unusual stay of execution ---- Supreme Court case delays justice


Convicted killer Lawrence Russell Brewer was sentenced to death for one of
the most heinous crimes in recent memory - the vicious murder of a black
man who was chained and dragged behind a pickup truck in Jasper 9 years
ago.

The U.S. Supreme Court refused to hear Brewer's appeal Monday, which
usually means the sentence for the condemned will be administered.

Not in Brewer's case, though.

Brewer just may avoid justice, at least for the time being.

Is there additional evidence that brings Brewer's guilt into question?

Are there questions regarding the legality of Brewer's trial or his
sentencing?

No - on both counts.

What may spare Brewer the punishment he deserves - of all things - is a
capital punishment case from Kentucky.

A pair of inmates in the Bluegrass State allege that lethal injection -
the method by which the death penalty is applied - is "cruel and unusual
punishment," and therefore is unconstitutional.

Speaking of the U.S. Supreme Court, it has agreed to hear the Eighth
Amendment argument related to the Kentucky case.

For this reason, many executions nationwide either have or will come to a
halt, possibly including Brewer's.

This type of logic - delaying a legal sentence because a future court
ruling may or may not change the constitutionality of this sentence -
warps the law.

The constitutionality of capital punishment has not changed.

With relation to "cruel and unusual punishment," capital punishment was
more or less declared unconstitutional from 1972-1976, thanks to differing
high court opinions. Using the delaying legal tactic being considered in
several states, were all executions carried out in this country prior to
1972 unconstitutional?

The constitutionality of those executions adhered to the law at the time,
which should be the focus now.

The case of Lawrence Russell Brewer is the perfect example of what happens
when justice and punishment are manipulated by capital punishment
opponents whose true objective is not kind and painless death, but the
abolishment of constitutionally protected punishment.

(source: Editorial, The Amarillo Globe-News)

*********************************

LETHAL INJECTION CHALLENGES----Ruling could halt Texas executions; After
stay, temporary ban likely while judges debate appeal


Roiled by internal dissent over its handling of a previous execution
appeal, Texas' highest criminal court Tuesday blocked the state from
carrying out its next scheduled execution -- signaling a temporary halt
for the nation's busiest death chamber.

Heliberto Chi was scheduled to die tonight for the 2001 killing of an
Arlington store manager.

Instead, the Honduran man became the second Texas inmate to win a
court-ordered reprieve while the U.S. Supreme Court considers whether the
method of lethal injection used in Texas and three dozen other states
violates the U.S. Constitution's ban on cruel and unusual punishment.

The Supreme Court last week blocked Texas from executing Carlton Turner
Jr. while the lethal injection challenge is pending.

"It seems clear, based on the actions (by the 2 courts), that executions
will be on hold for the next several months," said Andrea Keilen,
executive director of the Texas Defender Service, which helped defend Chi.
"We have what seems to be a temporary stop."

Chi's stay of execution, delivered in an unsigned but unanimous order from
the Texas Court of Criminal Appeals, gives Tarrant County prosecutors 30
days to file briefs rebutting Chi's claim that the 3 drugs used for lethal
injection can subject inmates to intense pain.

The Chi ruling came as new details emerged about the Texas court's refusal
to stay open past 5 p.m. on Sept. 25 so lawyers could file an appeal on
behalf of death row inmate Michael Richard. The Supreme Court had accepted
the lethal injection case earlier that day, and Richard's lawyers argued
that the extra time was needed to respond to the new circumstances and to
address computer problems that delayed the printing of Richard's motion.

Richard was executed later than night, and news of the court's refusal
appeared in newspapers, and critical editorials, around the world.

Last week, court personnel declined to say who made the decision to close
at 5 p.m.

It was revealed Tuesday that the decision was made by Presiding Judge
Sharon Keller without consulting any of the court's eight other judges or
later informing them about the decision -- including Judge Cheryl Johnson,
who was assigned to handle any late motions in Richard's case.

Johnson, who learned about the request to stay open past 5 p.m. in an
Austin American-Statesman story, said her first reaction to the news was
"utter dismay."

"And I was angry," she said. "If I'm in charge of the execution, I ought
to have known about those things, and I ought to have been asked whether I
was willing to stay late and accept those filings."

Johnson said she would have accepted the brief for consideration by the
court. "Sure," she said. "I mean, this is a death case."

Judge Cathy Cochran said the Richard case raised troubling questions.

"First off, was justice done in the Richard case? And secondly, will the
public perceive that justice was done and agree that justice was done?"
Cochran said. "Our courts should be open to always redress a true wrong,
and as speedily as possible. That's what courts exist for."

At least 3 judges were working late in the courthouse that evening, and
others were available by phone if needed, court personnel said.

None of the judges was informed of Richard's request by Keller or by the
court's general counsel, Edward Marty, who had consulted with Keller on
the request.

Keller defended her actions, saying she was relating the court's
longstanding practice to close on time.

"I got a phone call shortly before 5 and was told that the defendant had
asked us to stay open. I asked why, and no reason was given," Keller said.
"And I know that that is not what other people have said, but that's the
truth.

They did not tell us they had computer failure.

"And given the late request, and with no reason given, I just said, 'We
close at 5.' I didn't really think of it as a decision as much as a
statement," Keller said.

Keilen, whose organization also handled Richard's appeal, said court
clerks were informed about the computer problems.

The clerk's office, asked whether Keller was told of the malfunction,
referred questions to Judge Tom Price, who is in charge of court
personnel. Price did not respond, and calls to other judges were not
returned Tuesday.

(source: Austin American-Statesman)

*****************************

Condemned killer wins reprieve on lethal injection claim


The Texas Court of Criminal Appeals brought the state in line with the
effect of a U.S. Supreme Court review of lethal injection procedures by
stopping Wednesday's scheduled execution of a Honduran man.

In a reversal from a week ago, the state's highest criminal court Tuesday
ordered a halt to the lethal injection of Heliberto Chi, 28, condemned for
killing the manager of an Arlington clothing store during a robbery 6 1/2
years ago.

Just last week, the appeals court was given a similar appeal for Carlton
Turner Jr., a Dallas man set to die for killing his parents, but refused
to stop his punishment. The Supreme Court, which last week agreed to
review whether lethal injection is unconstitutionally cruel in a claim
raised by two condemned Kentucky inmates, gave Turner a reprieve a few
hours later, sparing him a trip to the nation's busiest death chamber in
Huntsville.

The Kentucky lethal injection procedure is the same one used by Texas and
other states.

Although Chi's lawyers were prepared to go to the Supreme Court, his
appeal never got that far.

"I'm grateful there's some measure of common sense descending on the great
state of Texas," Wes Ball, Chi's attorney, said. "We're not left in the
wilderness."

Chi would have been the 27th inmate executed in Texas this year, far more
than any other state.

"We're actually joining the company of perhaps more progressive states
like Alabama and Florida," Ball said. "Somebody's finally going to decide
this question, so let's stop killing people. If we're supposed to kill
them, we can kill them later."

In its brief order, the appeals court gave state lawyers 30 days to
address the question of "whether the current method of administering
lethal injection in Texas constitutes cruel and unusual punishment" in
violation of the Eighth Amendment of the Constitution.

In their appeal, Chi's attorneys said the execution procedure "creates a
wholly unnecessary, unacceptable risk that he will experience excruciating
pain and suffering."

The Texas Attorney General's Office has said it will review each condemned
inmate with an approaching execution date on a case-by-case basis. Gov.
Rick Perry, who could issue a 30-day reprieve, has said through a
spokesman that the matter is for the courts to resolve but also has said
he believes the procedure is proper.

Early last week, within hours of the Supreme Court announcement in the
Kentucky case, the courts allowed Texas officials to execute Michael
Richard for a slaying 21 years ago. Lawyers attributed his execution
moving forward to procedural hurdles they couldn't overcome in the hours
immediately after the high court announced its Kentucky review. The Texas
Court of Criminal Appeals never ruled in his case because the appeal was
filed past the court's 5 p.m. closing time.

In Turner's case, the Texas court voted 5-4 against stopping his
punishment. The order in Chi's reprieve listed no dissenters among the
judges.

Attorneys involved in death penalty litigation viewed Chi's case as a
better indicator of the immediate future of lethal injection in Texas,
where 405 inmates have received the toxic drug combinaton since the state
resumed capital punishment in 1982.

Earlier Tuesday, Terence O'Rourke, a lawyer in the Chi case working with
the government of Honduras, lost a request to the Texas Board of Pardons
and Paroles for a commutation request or 180-day reprieve.

O'Rourke's focus was on Chi's inability to contact someone from the
Honduran government, a violation of an international treaty, after he was
arrested for the 2001 slaying of Armand Paliotta.

The board voted Tuesday 7-0 against a request for commutation. The request
for a 180-day reprieve failed in a 4-3 vote.

The International Court of Justice in The Hague, ruling in a suit Mexico
filed against the United States, has said the convictions of about 50
Mexican-born prisoners violated the 1963 Vienna Convention because they
were denied legal help available under the treaty. President Bush then
ordered new state court hearings for those prisoners based on the ruling,
but his order applies only to imprisoned Mexican citizens.

David Dow, a University of Houston law professor involved in the Turner
and Chi appeals, said Chi was "getting executed because he's Honduran
rather than Mexican."

"That seems absurd," he said.

Chi was in the United States illegally when he was arrested in California,
then extradited to Texas to face the capital murder charges.

Chi, who once worked as a tailor at the store where the shooting occured,
would say little about the crime in an interview last week.

"My situation is not about being innocent or guilty," he told The
Associated Press. "My rights were violated.

"I'm a Christian. I know about the Lord. If it's the Lord's will, things
happen. I have great peace in my mind and soul."

The next scheduled execution isn't until late November. It's one of at
least three lethal injections on the Texas Department of Criminal Justice
execution calendar extending into next year.

(source: Associated Press)

***********************

Arlington killer granted reprieve


The Texas Court of Criminal Appeals granted a stay of execution Tuesday
afternoon for Heliberto Chi - following the U.S. Supreme Court's lead
after it decided to examine whether the current protocol for lethal
injection is cruel and unusual.

Heliberto Chi Attorneys for both the prosecution and defense said the stay
signals a probable slowdown, if not a complete shutdown, of executions in
Texas until the Supreme Court renders a decision in a pending case on the
Eighth Amendment issue from Kentucky.

Mr. Chi, 28, was convicted in the 2001 murder of 56-year-old Armand
Paliotta during a robbery of an Arlington men's clothing store. He was
scheduled to die Wednesday.

Andre Keilen, executive director of the Texas Defender Service, which
represented Mr. Chi, said she was encouraged "that the Texas Court did the
right thing instead of waiting for another mandate from the Supreme
Court."

Earlier in the day, the Texas Board of Pardons and Paroles declined both a
request for commutation in the Chi case, as well as a request for a
180-day reprieve.

Governor Rick Perry has refused to enter the fray, saying the matter is
for the courts to resolve and that he believes the procedure is proper.

Ms. Keilen said she was relieved by the ruling from the Texas Court of
Criminal Appeals, which has often been at odds, if not outright defiant,
of the high court in capital cases.

On Sept. 25, the high court decided to take the Kentucky case. But on the
same night, Texas executed Michael Richard after defense attorneys failed
to meet a deadline for filing an appeal on the lethal injection issue with
the Court of Criminal Appeals. The Supreme Court then declined to issue a
stay because the Texas court had not made a ruling on it.

And later in the week the Texas Court declined to issue a stay in the case
of Carlton Turner for killing his adoptive parents in Irving in 1998, but
the Supreme Court did so without explanation.

Steven Conder, an assistant district attorney in Tarrant County, said he
expected Tuesday's stay, given the Supreme Court's actions last week.

"I can't say that we were surprised," he said. "It's not shocking because
the Supreme Court is looking at the same issue." The Court of Criminal
Appeals gave lawyers 30 days to "address the question of whether the
current method of administering lethal injection in Texas constitutes
cruel and unusual punishment."

3 drugs are used in Texas and most other states: sodium thiopental, which
knocks the person unconscious; pancuronium bromide, which shuts down
breathing; and potassium chloride, which stops the heart.

Defense attorneys contend that the sodium thiopental could wear off or be
administered ineffectively, causing inmates to suffer several minutes of
pain before dying.

Mr. Conder said he doesn't see "where lethal injection constitutes cruel
and unusual punishment. That's been our standard for execution for 25
years."

The Court of Criminal Appeals previously reviewed whether the method of
lethal injection constitutes cruel and unusual punishment in the case of
Houston gang member Derrick O'Brien.

Mr. O'Brien was granted a reprieve by the Texas court in May, 2006, when
his lawyers raised the drug issue, but the court lifted the stay 2 days
later, saying that the lawyers had provided no evidence that Mr. O'Brien
would suffer unnecessary pain or suffering. He was executed 2 months
later.

3 more executions are scheduled in Texas through February, including Dale
Scheanette, who was charged with a 1996 rape and strangulation in
Arlington and Karl Eugene Chamberlain, who was convicted in a 1991 rape
and shooting in Dallas.

(source: Dallas Morning News)

************

Texas court halts Wednesday execution


The Texas Court of Criminal Appeals has halted the scheduled Wednesday
execution of a man who claims lethal injection is cruel and
unconstitutional.

Late Tuesday, the court in Austin gave prosecutors 30 days to explain why
Heliberto Chi, 28, should be given a lethal dose of drugs, the Houston
Chronicle reported.

Chi was convicted of killing a store manager in Arlington, Texas, in 2001.

The ruling came a week after the U.S. Supreme Court said it would consider
a similar challenge from Kentucky and then on Thursday, it ordered another
Texas execution stayed, The New York Times said.

David Dow, a law professor at the University of Houston and also with the
non-profit Texas Defender Service that worked on Chi's appeal told the
Times it appeared the state appeals court was following the Supreme
Court's lead.

"Until the Court of Criminal Appeals addresses the questions raised in
this case, there will be no more executions in Texas," Dow said.

(source: UPI)