The first organizing meeting to plan the 10th Annual March to Stop Executions will be held this Wednesday in Austin. Everyone is welcome to attend. Bring your ideas to make this year’s march a great success. The annual march is the time for everyone who opposes the Texas death penalty to work together and loudly raise our voices to end executions.

We have been wondering when the press would notice that last session the Texas Legislature created a new office to handle state habeas corpus appeals in death penalty cases. We mentioned it on the TMN blog on June 1, but none of the mainstream media wrote about it until yesterday. Now, about two months after the session ended, the San Antonio Express News published an article on it yesterday:

The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases. It represents a significant reform for Texas, one of the only capital punishment states that lack a public defender to oversee key death row appeals known as state writs of habeas corpus.

The office, with an annual budget of about $1 million and a staff of nine, won’t open soon enough to help any of the inmates whose appellate rights were squandered recently.

“Better late than never,” said Juan Castillo, one of four death row inmates whose state appeals were never filed by the San Antonio attorney assigned to represent them. “This is a start. There’s a lot of cases” that have been botched.

Ellis first introduced the bill in 2007 in response to reports about how death row inmates’ lawyers had mismanaged appeals. But the bill was blocked then by last-minute lobbying from Harris County’s former district attorney.

In the aftermath, appellate mistakes continued. The Houston Chronicle reported earlier this year that three attorneys had repeatedly blown state or federal appellate deadlines for their death row clients, effectively surrendering their clients’ rights to appeal. The Court of Criminal Appeals recently found two attorneys in contempt of court for their shoddy work, including Castillo’s lawyer, Suzanne Kramer, and referred them to the State Bar of Texas for possible disciplinary action.

Kramer has not responded to repeated requests for comment.

By the 2009 legislative session, remaining opposition to establishing a state capital defense office had virtually disappeared, Ellis said. The law was approved late in the session and signed by the governor last month.

“I think that everyone agrees (death row inmates) deserve one fair shot at presenting their issues, whether they’re meritorious or not,” said Andrea Marsh, executive director of the Texas Fair Defense Project. “We saw too many cases where poor state habeas representation forced people to lose appeals.”

The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state’s Fair Defense account, already earmarked for indigent defense. Ultimately, its attorneys will likely handle most state appeals — about 10 a year, if the current pace of death sentences continues.

State writs of habeas corpus are considered the most critical step in death row appeals. It is at that stage that any innocence claim, allegation of prosecutorial misconduct, flawed trial defense or other issue involving omissions or case errors must be raised — or the arguments cannot normally be raised later in the process.

The new office will not handle cases at the trial level, which is where a lot of the shoddy lawyering takes place, but it will at least handle writs of habeas corpus. In the future, the Texas Legislature should also create a state-wide office of public defender to handle death penalty cases at the trial level.

There have been major cuts at newspapers in staff covering the legislature, so we assume those cuts contributed to the fact that there was until yesterday no major coverage of the passage of the bill that created the Office of Capital Writs.

Texas Monthly has a long article by Michael Hall in its August edition titled “The Judgement of Sharon Keller” about the presiding judge of the Texas Court of Criminal Appeals. Keller said “we close at 5” when asked by attorneys for Michael Richard in 2007 to allow them to file a late appeal for Michael Richard on the day of his scheduled execution. Keller’s trial is scheduled to start August 17 in San Antonio on charges of misconduct and incompetence arising from complaints filed with the State Commission on Judicial Conduct by several groups, including Texas Moratorium Network which filed a complaint signed by about 1900 people. (For more background information visit www.sharonkiller.com.)

According to the Texas Monthly article:

The main charge was that Keller’s “failure to follow the CCA’s execution-day procedures” violated the Texas constitution (which states that a judge must not exhibit “willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary”) and the Code of Judicial Conduct (“a judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”).

“It’s going to be a donnybrook,” says Cathy Cochran in the TM article. Cochran is also a judge on Keller’s court. The article says that “Judge will testify against judge”, implying that Cochran will likely testify against Keller.

The article says that when she ran for election in 1994, Keller

described herself as “pro-prosecutor,” explaining to a reporter, “I guess what pro-prosecutor means is seeing legal issues from the perspective of the state instead of the perspective of the defense.”

The article says that Keller believes in following rules and the law (although she violated the rules of her own court in her handling of the Michael Richard appeal).

In 2000 Keller ran for presiding judge. Her opponent, fellow judge Tom Price, asked, “How far to the right is this court going to be? Even Republicans want fair trials.” (Price would later say that the Criner case had made the court a “national laughingstock.”) Keller was asked in a preelection interview if she was bound to follow the law, even if it meant an unjust result. “Absolutely,” she replied. “Who is going to determine what justice is? Me? I think justice is achieved by following the law.” According to some who have worked with her, she was also answering to a higher power. “She’s extremely religious,” says a colleague. “She believes strongly that God is on her side.”

The article contains a long description of the events on the day that Keller said ‘We close at 5″. Click here to jump to the section of the article covering the timeline of events, many of which appear to be taken from the formal charges of the Commission on Judicial Conduct.

So what does Hall think will happen at the trial?

SOON THE JUDGE will have her own day in court, before special master Berchelmann. Her defense will rest on several things, first and most important her interpretation of the infamous phone call. She has said she thought Marty was asking specifically about the clerk’s office, which, like all state offices, closes at five and never stays open late. “It is clear that Judge Keller did not have a duty to do anything other than what she did,” her response to the CJC says, “which was to answer a question about whether the clerk’s office closes at 5:00 p.m.” In other words, Keller followed the rules—as she had always done. But Marty told the CJC that he said either “They want the court to stay open late” or “They want to hold the court open.” If Berchelmann determines that he said (and that Keller understood him to say) “court,” the special master might rule that Keller had a duty to do more than she did.

Hall thinks that Keller will blame the attorneys for Richard, especially for not contacting another judge on the CCA, but at least one other judge on the CCA does not seem to buy that excuse. Hall says he

asked Cochran if she had ever been phoned by a defense lawyer seeking to file a pleading. “Never,” she said. “I would consider it an ex parte communication. I don’t want to be put in that position. If the clerk’s office is closed, the general counsel is the normal person you go to.”

Keller is also likely to try to make General Counsel Ed Marty the fall guy.

Why did he even call Keller at home? Why not go straight to the duty judge?

In Hall’s article Judge Cochran comes out looking like the CCA judge with the best ethical judgement. Hall

asked Cochran about the distinction Keller’s defense makes between “clerk’s office” and “court.” “The bottom line is, we accept anything and everything before an execution takes place,” she says. “We will do whatever it takes.” Did she have any doubt about whether she would have made it happen? “No. I can’t imagine the concept of not accepting a death penalty filing even though it’s after the clerk’s office closes. That’s what courts are for. The Supreme Court doesn’t close on death days. It would have been so easy to say, ‘Mr. Marty, tell ’em to fax it.’

“Sometimes you just do the right thing. The right thing is not to close the courthouse when someone is about to be executed.”

On the other hand Lawrence Meyers, another judge on the CCA and one who is up for re-election in 2010, defends Keller saying “Judge Keller had no more duty than anyone else.” and

“I don’t know what I would have done,” says Meyers. “We’re not supposed to counsel these people on what to do. We’re under the presumption that they are highly specialized attorneys. From a technical standpoint I don’t think she did anything wrong. She didn’t do anything not prescribed by the code.”

To read the entire article by Hall, click here to go to Texas Monthly or pick up a copy of the August issue on newsstands.

Three incumbents on the Texas Court of Criminal Appeals are up for re-election in 2010: Michael Keasler, Cheryl Johnson and Lawrence Meyers. All three are Republicans, as are all the judges on the CCA. On July 15, 2009, they reported the following amounts to the Texas Ethics Commission.

Michael Keasler Report (PDF)

Total Contributions Zero

Total Expenditures $342.58

Total Political Contributions Maintained $3,042.43

Total of all outstanding loans Zero

Lawrence Meyers Report (PDF)

Total Contributions $2,000 (He contributed $2,000 to his own campaign)

Total Expenditures $3,055.87

Total Political Contributions Maintained $1,073.30

Total of all outstanding loans $113,693.00 (He has reported this loan on every report since March 1998. He also reported expenditures in March 1998 of $107,532.00. He had a strong challenger in that year’s Republican primary.)

Cheryl Johnson Judicial Candidate/ Officeholder (PDF)

Johnson reported zero contributions, zero expenditures, zero contributions maintained and zero outstanding loans in her Candidate/Officeholder account.

Friends of Cheryl Johnson (Judicial Specific-Purpose Committee) (PDF)

Johnson is the treasurer of Friends of Cheryl Johnson

Total Contributions Zero

Total Expenditures Zero

Total Political Contributions Maintained $4,054.46

Total of all outstanding loans Zero

On July 14, John Fautenberry became the 999th person executed by lethal injection in the United States. Amnesty International Canada francophone in Montreal on Tuesday protested Fautenberry’s execution and the upcoming 1000th lethal injection in the U.S. by reenacting a lethal injection (link to French-language news article in Le Devoir). The photo was sent to us by Charles Perroud, who also recently organized a protest in Montreal of the 200th execution under Texas Governor Rick Perry.

The 1000th execution by lethal injection in the U.S. could occur on July 21 when Ohio is set to execute Marvallous Keen. If Keen receives a stay, the next lethal injection could be of Roderick Newton in Texas on July 23.

Other than the 999 lethal injections, other execution methods used since the reintroduction of capital punishment in the U.S. in 1977 have been electrocution, gas chamber, hanging and firing squad.

In 1977, the state of Oklahoma passed legislation permitting lethal injection as a form of execution, but it was not the first state to actually use the method. The first execution of a person by lethal injection in the United States was on December 7, 1982 in Texas. That was also the world’s first execution by lethal injection of a person who had been convicted of a crime and sentenced to death. (The Nazis in Germany had actually been the first government to use lethal injection. They used it as one of the methods in the T4 program to exterminate people with mental retardation, mental illness or other physical disabilities or illnesses.)

Executions in U.S. since 1977

Lethal Injections 999
Electrocution 155
Gas Chamber 11
Hanging 3
Firing Squad 2
All since 1977 1170

Read a 2007 Amnesty International report “Execution by lethal injection: A quarter century of state poisoning“. Excerpt:

In lethal injection executions, prisoners are commonly injected with massive doses of three chemicals: sodium thiopental (also known by the trade name Pentothal) to induce general anaesthesia; pancuronium bromide to cause muscle paralysis, including of the diaphragm; and potassium chloride to stop the heart. Doctors have expressed concern that if inadequate levels of sodium thiopental are administered (for example, through incorrect doses of thiopental, faulty attachment of the line, or precipitation of chemicals) proper anaesthetic depth will not be achieved or the anaesthetic effect can wear off rapidly and the prisoner will experience severe pain as the lethal potassium chloride enters the veins and he or she goes into cardiac arrest. Due to the paralysis induced by pancuronium bromide, they may be unable to communicate their distress to anyone.

Such issues have led to these chemicals – used on humans as punishment – being barred from use on animals in euthanasia. The professional body representing the USA’s veterinary surgeons has argued that the use of pancuronium bromide is unacceptable for euthanasia of domestic pets.The American Veterinary Medical Association has taken the view that a mixture for euthanasia of animals by sodium pentobarbital should not include a paralysing agent and that humane killing of animals by potassium chloride requires prior establishment of surgical plane of anaesthesia characterised by “loss of response to noxious stimuli”(14) by a competent person.(15) The use of pancuronium bromide in animal euthanasia has since been banned in individual US states including Tennessee(16). In September 2003, a new law came into force in Texas prohibiting the use of pancuronium bromide in the euthanasia of cats and dogs. Texas is the US state which uses lethal injection the most frequently for humans, having executed some 400 people by this method since 1982.