President's Message: Is It Time for a Moratorium on Executions in Texas? - By Bobby Mims

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Tuesday, October 1st, 2013

On September 18, the American Bar Association’s Death Penalty Due Process Review Project released its latest report entitled Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report (An Analysis of Texas’s Death Penalty Laws, Procedures, and Practices). The report is focusing on the fairness and accuracy of Texas’ death penalty system. In summary the findings of the report stated: “In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the ad­min­is­tration of the death penalty, and provides the public with inadequate information to understand and evaluate capital punishment in the state.”

Many of us who have been involved in capital defense for years already know too well the unfairness of the capital murder scheme in Texas. There does not appear to be any consensus among the members of TCDLA about whether the death penalty should be abolished or continue to be implemented. However, there is little doubt that a vast majority of our members support the right to a fair trial under the Constitution and laws of the United States and Texas. In many ways the evils that the Supreme Court found in Furman v. Georgia, 408 U.S. 238 (1972), still prevail in the current death penalty scheme. The report brings into stark relief what Texas capital defenders have been stating for years.

The ABA Team consisted of two law school professors, a former Federal Judge (and now a law-school dean), a former U.S. attorney, the chair of the litigation section of a large civil law firm, a former justice on the Texas Supreme Court, the former chairman of the Texas Department of Corrections, and a former governor of Texas. The importance of the ABA’s report filed by the Texas Capital Punishment Assessment Team is that it takes no position on the death penalty regarding whether it should be abolished or not. Rather, the report seeks to point out the areas where Texas needs to improve the process in order to ensure that the death penalty is administered fairly and constitutionally.

The assessment made several recommendations to help prevent wrongful convictions and improve due process, including requiring the indefinite preservation of biological evidence in violent crimes, abandoning the law’s emphasis on predicting the “future dangerousness” of the defendant in deciding death sentences, and enacting appropriate statutes to deal with capital defendants with intellectual disabilities and severe mental illness. The report commended Texas on recent improvements to its justice system, such as the 83rd Legislature passing and the governor signing the Michael Morton Act. The report commended Texas for adopting better lineup procedures, disclosure of police reports to the defense, and the establishment of Regional Public Defenders for Capital Cases in a large part of Texas and the Office of Capital Writs to provide capital habeas representation throughout the state.

There is no question that the issue of “future dangerousness” is the most confusing to lawyers and judges, but most particularly is confusing to jurors. It’s misleading and “often turns on unreliable scientific evidence,” and, in my opinion, is intentionally “fear based” in an effort to motivate/scare a juror to answer the issue in a manner that will result in the death penalty. As the report properly stated, “the defendant’s alleged future dangerousness is placed at the center of the jury’s punishment decision.” One of the report’s recommendations was that “expert testimony as to a defendant’s propensity to commit criminal acts of violence must be prohibited, whether by statute or by rule.” Some, such as a capital murder juror, will recoil when asked to predict the future in order to decide whether some person lives or dies.

Much has been documented and said about the issue of prosecutorial misconduct and the failure to disclose exculpatory evidence. There have been 12 exonerations of death row prisoners since 1976. The Texas District and County Attorney Association has undertaken to emphasize training in Brady and other issues since the passage of the Michael Morton Act. It is hoped that this will ameliorate in some manner future abuses. However, the fact remains that since 1976, Texas has sentenced to death more than 1,000 men and women who did not have the benefit of protection of the Michael Morton Act. It is unknown if there is an innocent among the nearly 300 who remain on death row. We do know, and the ABA report sets out in stark clarity, the problems with the death penalty scheme in Texas. Presumably each of these inhabitants of Death Row has been tried and convicted under the present law with its imperfections.

Texas leads the nation in executions since 1976 with 504 through September 19, 2013, including 12 so far in 2013. Some members have called for a “Moratorium on Executions in Texas” until these issues have been dealt with by the lawmakers. Certainly our policy makers want a system that is constitutional and fairly implemented if Texas is going to have the death penalty. Under the present state of the law, there may be no mechanism to implement a moratorium. If so, then this is another failure of the law to protect its citizens and should be addressed by the policy makers and the lawmakers. In any event it would seem that it is reasonable to stop any further executions in order to give time for our legislature to hold hearings and to implement changes in the system that are deemed appropriate. After all, if the state seeks to execute one of its citizens it should ensure that all due process has been obtained so that the people can be assured their criminal justice system has not made a mistake.

Now is the time for the governor and the legislature to show leadership on this critical issue of criminal justice and act promptly on considering a moratorium on executions.

There are those who will say that it’s working just fine, and that Texas has made tremendous progress in a more fair crim­i­nal justice system. That may be true, but when lives are at stake and the fairness of our system that decides who should live and who should die is in question, we should make time in our pursuit of justice.

Is it time for a moratorium on executions in Texas?

Bobby Mims
September 2013