There is a moratorium item on the agenda of the House Criminal Jurisprudence Committee for next Tuesday, April 24 at 2 PM in E2.016. Unfortunately, so far it is only the constitutional amendment (HJR 23) that would give the governor the power to call a moratorium, which seems unlikely to be a power used by Perry even if he had it. So far, Dutton’s moratorium bill, HB 809, which is a much better moratorium bill since it would not require a constitutional amendment and would also create a study commission, is not yet on the agenda. HJR 23 does not have a study commission. Ideally, the committee should hear both bills on the same day.

Duttons’s bill is HB 809. Please write a letter to the chair of the committee, Aaron Pena, asking him to add HB 809 to the agenda of the committee meeting by filling out his email form here:

or by using this action alert to send an already written email to Pena laying out the reasons why HB 809 is important.

Everyone who supports a moratorium on executions should plan to come by and sign in in favor of whatever moratorium bill is on the agenda.

Kerry Max Cook gave a keynote address at a luncheon held by The Texas Journal of Civil Liberties and Civil Rights on April 17. Texas Moratorium Network was also a financial sponsor helping to bring Kerry to Austin for the event. The Daily Texan says that Kerry listed five flaws in the American justice system that lead to innocent people being wrongfully convicted and sentenced to death as he was.

Cook made the opening address at an annual symposium on civil rights held at the UT School of Law Tuesday. The symposium focused on prison systems in Texas and across the U.S.

“These flaws send innocent men and women to their deaths,” said Cook, who wrote a book called “Chasing Justice,” addressing his experiences with the legal system.

The first flaw is an error of mistaken identification, and the second is the use of weak inmate testimony by the prosecution, he said. The third flaw is “junk sciences.” Cook said this is when the prosecution calls expert witnesses who essentially tailor their findings to remove reasonable doubt and ensure conviction.

The fourth flaw, prosecutorial misconduct, Cook deems the most critical in regards to his own false conviction, he said.

“The reason for that degree of prosecutorial misconduct is that prosecutors enjoy qualified immunity, and in the wrong hands, it becomes nothing short of a license to lie and cheat,” he said.

The fifth flaw is ineffective assistance counseling, Cook said, using a comparison between Kmart and Saks Fifth Avenue shoppers to show what having the money to hire the best lawyers can do for someone.

“Money is what determines who lives and dies in this country. The death penalty is not racist; the death penalty targets the poor,” Cook said.

Keven Ann Willey on the DMN Editorial Board’s stance on capital punishment (April 16, 2 p.m.)
The DMN Editorial Page Editor takes your questions

moderator: Welcome! Keven Ann Willey is now taking your questions.

moderator: From Scott Cobb: Will the Dallas Morning News be conducting a campaign on its editorial page and online asking its readers to contact their legislators and the governor about stopping executions with a moratorium and creating a study commission to study the death penalty in Texas?
Keven Ann Willey: Urging readers to get involved in this issue will indeed be part of our editorial push on this issue. The only way the Texas Legislature will ever consider a moratorium on – let alone outright abolishment of – the death penalty is if lawmakers hear this desire directly from constituents. Loud and clear.

dommerdog: It seems with DNA science having become what it is to the criminal justice system, we would be more certain that the guilty are not executed, so why use DNA and its exonerations as justification to abolish the death penalty?
Keven Ann Willey: Great question and one that on its face seems quite logical. But think about it more carefully. What have we learned of late, courtesy of DNA technology. We’ve learned that many folks convicted “beyond a reasonable doubt” of crimes have been found to be not guilty. Such error, in one form another, will likely always be present in any system devised by inherently imperfect human beings. That’s why we can no longer support a death penalty system that has been proved to be both imperfect and irreversable.

GreaterGood: If even 1% of persons put to death by the criminal justice system are innocent, how many innocent persons might be killed by any of the other 99% escaping from jail when they have nothing to lose?
Keven Ann Willey: I don’t know the empirical answer to this question. But what I do know is what we can control. We can control not to kill that (hypothetical) 1 percent. (By the way, how do you know it’s only 1 percent?) I don’t know about you, but I don’t want society’s blood on the hands of even a single innocent being killed by the state. What if that innocent was your loved one? Isn’t even the possibility a transgression against the Western moral tradition?

moderator: From Paul Smith: I have been opposed to capital punishment for as long as I can remember. I am thrilled that the DMN editorial board is recommending abolishment of the death penalty in Texas. Having been in the minority on this issue for most of my life, it is gratifying to have a great newspaper do the right thing! What do you think is the probability that the Texas legislators will abolish the death penalty?
Keven Ann Willey: Thank you for your kind words. I invite you to read more background about the Editorial Board’s development on this issue on our editorial board blog, called Dallas Morning Views, at dallasnews.com/opinion. With regard to the odds of Texas lawmakers abolishing the death penalty: Next to nill, at least for now. Only thing that will change that is for readers like you to contact them in great numbers and volume to convince them this is what you want. We’re not daunted by the odds for change. Sometimes you wage battles knowing full well you’ll likely go down to defeat. You wage them anyway because you know in your heart it’s the right thing to do.

brb1081: Are there any known instances of innocent people being executed in Texas or nationally?
Keven Ann Willey: There are several known instances of innocent people being sentenced to long terms in prison only to be very-much-later determined to be innocent and thus released. I don’t believe there are any proved cases – yet – of an innocent person being executed but it’s hardly a stretch. Most disturbing is what we’ll probably never know. Take for example the case of Carlos De Luna, which we highlighted in Sunday’s lead editorial. Another man with a history of violent crime bragged that he committed the horrific stabbing murder that DeLuna was charged with. The case against DeLuna upon closer examination doesn’t stand up, in many people’s eyes. but it’s too late. DeLuna was executed in 1989. We may never know if that was a mistake. Worse, if it was: There’s nothing we can do to correct it.

fettman: I disagree with totally doing away with the death penalty, but I feel that it is a harsh punishment for some crimes and justified in others. What is DMN’s stance, however, on the current definition of “life sentence”? How about changing it to life without the possibility of parole?
Keven Ann Willey: We whole-heartedly support life without parole as a sentencing option, and as you may know, the Texas Legislature recently approved this option. It was this fact – plus the mounting DNA concerns – that prompted us to reconsider the paper’s historical position on the death penalty. Think about it: Juries now have the option of sentencing the worst criminals to life without parole. So why keep the death penalty, an option three times as expensive and one that we know “beyond a reasonable doubt” is both imperfect and irreversable.

moderator: From Bryan Rutherford: One argument made by anti-death penalty advocates is that the cost of housing an inmate is much less than the cost of litigating the statutory automatic appeal when a jury finds the death penalty is the correct punishment. But, defendants who receive life sentences can and do continue to file subsequent writs of habeas corpus (special appellate proceedings) throughout their lives in prison. How does the cost of handling forty years’ worth of writs stack up against the cost of executing an inmate? It seems to me that an execution ends the litigation, whereas life imprisonment promotes litigation fro the remainder of the inmate’s life expectancy.
Keven Ann Willey: There are fewer grounds for challenge under life-without-parole sentences. Once a bad guy is sentenced to death, it automatically triggers a set of appealable issues, which can go on for years, decades. In Texas, the cost of the average death penalty case is nearly three times higher than imprisoning someone in maxiumum security for 40 years.

moderator: From j: why does there have to be a collective corporate thought?? That takes away from objective journalism.
Keven Ann Willey: I guess I’m not sure what the reader means by “collective corporate thought.” Newspapers from their beginning have been all about promoting change, reform, etc., improving their communities (i.e. opinion). Modern-day newspapers have tended to report the news as objectively as possible in their news pages and segregate the opinion, commentary, perspective pieces in separate Editorial and op-ed pages. The Dallas Morning News has been for more than a century a leading defender of the death penalty and when the latest DNA technology and the Legislature’s passage of the life-without-parole option recently prompted us to revisit that support, we felt an obligation to share that reconsideration in some detail with our readers. Rest assured that the news pages of TDMN will continue to cover this topic as objectively as possible, just as they did prior to our editorials yesterday and today.

ellcee: Reality check here. You propose to end the death penalty yet offer no solutions instead. Life without parole. Look at Charles Manson. The State of CA is footing the bill for this guy who likes being in prison once the death penalty was overturned. Yes, the system has flaws. Then fix the flaws. If DNA is the answer to saving innocents of the DP then expand it. Prisons are already overcrowded and I for one do not want to see some of these people on the street again. I ask you the same question–Would you want a loved one to meet them? DNA is good but depending on the context it can only tell if a person was there or not. If there is no DNA sample (and criminals are getting better at not leaving any) then there has to be another way.
Keven Ann Willey: We have presented alternatives. We believe life without parole presents a meaningful alternative to death – which is both imperfect and irreversale. We called this option “death by prison” in today’s editorial. Just to be clear, our preference is for lawmakers to abolish the death penalty. But short of that, we’ve urged at least a temporary moratorium so that the system’s flaws can be fully reviewed and corrected. But we’ve been calling for a moratorium for several years and so far Austin hasn’t so much as considered such a thing. As a last resort – or at the very least – as we noted in today’s editorial, we believe lawmakers should create a study panel to examine the flaws in the system. We’d view implentation of any of these three ideas as a meaningful step forward.

Dudley Sharp: The evidence is that innocent poepkle are more at risk without the death penalty. Doesn’t that do away with your arguement for gettuing rid of it?
Keven Ann Willey: What evidence are you referring to? I’m unfamiliar with this. More important, how is potentially killing an innocent person making society safer? In such a case, the real offender is still walking free. It’s even worse, because he’s walking free and nobody’s looking for him because everybody thinks the state’s already got the guy, but it hasn’t.

txntx: Have you heard from any other editorial pages in Texas that have told you that they may also soon oppose the death penalty, such as maybe the Houston Chronicle. I know the Austin American Statesman has already written against the death penalty.
Keven Ann Willey: No we haven’t. But perhaps we will. I hope so. Interestingly, the Chicago Tribune came out agains the death penalty last month, reversing a long-held position of its own.

moderator: From Bryan Rutherford: The DMN article’s first sentence assumes Texas has a “liberal use of the death penalty.” Do the statistics bear this out? The anti-death penalty websites make this assumption as well, but do not say how often the State seeks the death penalty for a capital offense. For example, if the State charges a capital offense (a crime for which the maximum penalty is death) 100 times, do juries choose to execute 80-90 of those defendants? That would be “liberal use” to me. If, after hearing the facts of the case at issue, juries choose to execute a dozen or so, that would be “minimal use,” in my opinion.
Keven Ann Willey: May I refer you to the cover of Points from yesterday? There have been 13 executions so far this year – all but one have been in Texas. Further, we published a chart that shows the number of executions per state since 1976. If you could see that chart it would blow your mind. Most states have executed maybe a dozen or two since 1976. Texas has executed 390. Think about how long that bar is in this particular bar chart. Yes, but Texas is such a big state, you say, so isn’t 390 reasonable on a per-capita basis? Not at all. The only state that has executed more per capita is Oklahoma at .238 executions per 10,000 population. Texas comes in at .173. Next is Delawar at .168, Virginia at .131, Missouri at .114. And so on. Seems pretty liberal to me.

Andre22: Who speaks for the victim’s families in this matter? My father was murdered in 1971 and the man that murdered my father was a suspect in several others in AZ and TX. The guy was convicted for muder with out malice and was walking around (by my family’s business, I saw him wth my own eyes) within 4 years. I think you people can sit and try to be objective (and sanctimoniously “civilized”), but until you look a loved one to murder, your opinions mean nothing to me.
Keven Ann Willey: We should all speak for the victims’ families in these matters. They are what matter most. As we explained in the lead piece on Sunday, this newspaper’s death penalty position is based not on sympathy for vile murderers. Many of us agree that those folks deserve to die for their crime. But executing 10, 100 or 1,000 of these wretches cannot remove the stain of innocent blood from our common moral fabrid. How does it help the victim’s family if we execute the wrong person? What’s wrong with life in prison without parole (or “death by prison”) an awful sentnece that if applied in error has the advantage over death of being reversable.

moderator: From Bryan Rutherford: In the states that do not allow juries the option of a death penalty, how far-reaching are the movements of groups seeking to abolish life sentences as “inhumane” or “cruel and unusual” punishment? It is my feeling that, if the Texas death penalty abolishinists are successful, those groups will then move toward repeal of life sentences. What is happening in other states in this regard?
Keven Ann Willey: It is hard to make a credible argument against life without parole as a sentencing option under any circumstances, particularly in a state that doesn’t have the death penalty as an option. I’m unaware of this sort of “strategy.”

1glacier: Do you have even one example of an innocent person executed by the state of Texas
Keven Ann Willey: Please see my earlier answer to a similar question or read our Sunday cover piece on points. The first example that comes to mind is the Carlos De Luna case. He was executed in 1989. It’s unclear whether he was guilty – the case doesn’t stand up in many eyes upon closer examination. And another man had bragged about having committed the awful stabbing crime DeLuna was convicted of. We may never know for sure whether he was guilty or not. Worst of all, it doesn’t matter. It’s too late. We can’t reverse his execution. It’s not a stretch to assume other such cases exist. Bottom line as we noted Sunday: We have lost confidence that the state of Texas can guarantee that every inmate it executes is truly guilty of murder. We don’t believe that any legal system devised by inherently flawed human beings can determine with moral certainty the guilt of every defendant convicted of murder. We can’t reconcile the fact that the death penalty is both imperfect AND irreversable.

dommerdog: Discussion over “liberal” application of the death penalty brings me to Mike Hashimoto’s thoughts on this topic expressed in his Points column. What you are writing here seems to controvert what he wrote in terms of the demographics and ratios. Do you disagree with his numbers?
Keven Ann Willey: We were enormously pleased to publish Mike’s column. His was a well argued column espousing a different point of view on this key issue. Re the numbers: Mike found a Cornell study with numbers that said Texas sentenced fewer murders to death per capita than such states as Nevada, Ohio and Delaware. The editorial’s figures came from the Death Penalty Information Center, U.S. census bureau. That’s part of the problem here. There are studies all over the map on this issue, which heightens the lack of certainty. And that’s the point.

Jasatchmo: I enjoyed the articles yesterday (including the rebuttal on the back page). The arguement to eliminate the death penalty is one I agree with. Not for religous reasons. In my case it comes down to a ‘micro’ vs a ‘macro’ view of the issue. One micro level, xxxxxxx (fill in the blank with any serial killer) deserves to die. We all agree with that. The macro side of the issue is what your arguement is hinged on….are we willing to kill a couple innocent people for every 50 that deserve it. I’m not. The finances of 3 to 1 for death vs life is compelling, but in the end that’s just money. I’m not willing to kill innocent people and we know we have a flawed system.
Keven Ann Willey: Reasonable points all. Thank you.

Ronny: Is the DMN now opposed to the death penalty in principle, or could there be circumstances in which, given a moratorium and subsequent reform meeting certain just criteria, the DMN could once again support the death penalty. Also, could you envision a moratorium allowing review of past death penalty judgments while allowing future sentences to go forward provided a high standard of corroborating evidence is met?
Keven Ann Willey: TDMN is opposed to the death penalty, both for practical and philosophical reasons. I don’t foresee any set of circumstances that would cause us to be confident that it can be applied with perfect accuracy. As we said on Sunday: “We do not believe that any legal system devised by inherently flawed human beings can determine with moral certainty the guilt of every defendant convicted of murder.” Part of the purpose of a moratorium would be to review past death penalty judgments.

moderator: That’s all we have time for today. Thanks, Keven, and thanks to everyone who participated.

The Texas Journal of Civil Liberties and Civil Rights Cordially Invites You to Attend:

Reexamining incarceration: A Discussion on Civil Rights and the Prison System

April 17, 2007
12:00 – Catered Lunch
Kerry Max Cook, author of Chasing Justice
exonerated after spending two decades on Texas’
death row for a crime he did not commit
(Please RSVP for lunch to tjclcr@law.utexas.edu)
Francis Auditorium, 2nd floor, UT Law School

1:30 – Panel : “Juvenile Justice: How do we fix this mess?”
Scott Medlock, Texas Civil Rights Project, Will Harrell, ACLU of Texas, and Isela Gutierrez, Texas Coalition Advocating for Juvenile Justice

3:00 – Panel: “Fighting from the outside: Civil Society Challenges to the Conditions of incarceration”, Nicole Porter, American Civil Liberties Union
of Texas, Michele Deitch, Professor, LBJ School of Public Policy, University of Texas, J. Rogue, AIDS Coalition to Unleash Power, Andria Shively, Inside Books Project

Both Panels will be held in the Eidmann Courtroom, UT School of Law, 727 East Dean Keeton Street × Austin, Texas 78705 × 512.232.1278 × www.utexas.edu/law/journals/tjclcr/

Chat: Dallas Morning News Editorial page editor Keven Ann Willey will answer questions about the editorial board’s stance new stance opposing the death penalty at 2 p.m. today.

Send early questions to chat@dallasnews.com or go to DallasNews.com to participate.

The DMN published two more articles today in their series against the death penalty.

Texas’ Next Step
Texas Lawmakers should embrace a moratorium on executions and a study commission..

In Texas, the inevitability of a wrongful conviction evokes the image of an innocent person being rolled into a hearse. It’s an image that’s hard to erase, once the idea gets startedtakes hold.

No Texan should have to be haunted by that image, but lives are extinguished in Huntsville in all our names. State leaders have a responsibility to fearlessly confront the inevitability of a fatal mistake in our criminal justice system.

Death No More: Life without parole should be new standard

Justice demands a punishment that is fair yet revocable, one that provides a sense of finality while allowing for the fallibility of the system.

Life without parole meets that bar.

It’s harsh. It’s just. And it’s final without being irreversible.

Call it a living death.

Thanks to a recent change in law, Texas juries now have the option of imposing life without parole in lieu of the death penalty.

Across the country, public sentiment has begun to shift as legislatures have given juries this option.

Last year, for the first time, Gallup Poll respondents favored life in prison without parole over the death penalty, if given the option.

DNA exonerations have raised the specter of executing an innocent man. Questions about lethal injection methodology and mounting evidence exposing the arbitrary application of the death penalty also have helped bolster support for life without parole.

Locking away murderers for life would save states millions of dollars on costly death penalty appeals. And there is growing support for life without parole and putting convicts to work to pay restitution to their victims’ families.

Death does not provide an added level of justice. A prison sentence that does not allow for the possibility of parole accomplishes the same objectives: protecting society from violent criminals and ensuring that every day of a murderer’s life is a miserable existence.

Our standards of punishment have evolved over time, from the gallows to firing squads, from the electric chair to lethal injection. Life without parole, essentially death by prison, should be the new standard.