In Texas it is apparently ok for a Republican judge to say that they are “pro prosecution”, as Judge Sharon Keller has done, and not have to recuse herself from any cases, but if a Democratic judge expresses any doubts about the constitutionality of the death penalty, then she must recuse herself. If Teresa Hawthorne must recuse herself from the current death penalty case because of “bias”, then Judge Sharon Keller should recuse herself from all cases before her court.

Prosecutors, with the help of a judge appointed by Rick Perry, may have been successful today in forcing Judge Hawthorne to recuse herself (just as other prosecutors were successful in shutting down the 2010 hearing in Judge Charlie Baird’s court on the Todd Willingham case), but as we said in an earlier post “these type of rulings are likely to continue as more and more judges reach the same conclusion. One day, we expect it will be the U.S. Supreme Court that will rule the death penalty unconstitutional, but until then we are happy to see lower level courts build momentum towards the day when the death penalty will be rejected by the U.S. Supreme Court.”

From the Dallas Observer:

Teresa Hawthorne, the Dallas County judge who ruled that the state’s death penalty statute was unconstitutional, must recuse herself from a capital murder case, a judge ruled today.

and

Assistant District Attorney David Alex argued that Hawthorne’s bias against the death penalty was clear from statements she made during a December 19 pre-trial hearing. He quoted, in bits and pieces, things the judge said in open court that day, such as: “I remember when women and blacks could not vote. I remember when so-called witches were burned. I remember when gays had to hide to be in the military.” Hawthorne said then she wasn’t trying to engage in judicial activism; she insisted last month that she was not trying to “buck the system or stir the waters.” Alex vehemently disagreed.

“The judge analogized the death penalty to some very heinous times in our American history,” Alex told the court. It’s obvious, he said, that she has “very strong emotional, personal feelings against the death penalty. … But none of these things have anything to do with legal precedent.”

 

Judge Sharon Keller

NEWS RELEASE

DEC. 31, 2011

FOR IMMEDIATE RELEASE

CONTACT: Elizabeth at 281-989-6556 or  eliza.tx.usa@gmail.com

WEB: http://executionwatch.org; http://kpft.org; facebook: Execution Watch

EXECUTION WATCH NAMES TOP 10 DEATH PENALTY STORIES OF 2011

HOUSTON — The most significant death-penalty stories of 2011 have been named by Execution Watch, a news program on Pacifica Radio Network’s KPFT FM 90.1 that broadcasts and streams live whenever Texas puts a prisoner to death:

1.      Troy Davis is executed in Georgia despite lingering doubts about his guilt. The rush to execution was not as unusual as the broad international awareness of, and support for, Davis.

2.      Mumia Abu-Jamal makes the metaphorically giant leap from Pennsylvania’s death row into general prison population after the Philadelphia district attorney announces it will stop its 30-year effort to obtain a durable death penalty against him.

3.      Texas executes Mexican national Humberto Leal, flouting international law by refusing to give him a new hearing despite the failure by police to tell him at arrest that he may contact the Mexican Consulate for legal help.

4.      Illinois abolishes the death penalty, reducing the number of states with capital punishment to 34. In a related story, Oregon’s governor says no executions will take place during his term but neither commutes any death sentences nor stops prison officials from selling excess execution drugs to other states.

5.      The European Union escalates its activism against American use of the death penalty by banning the export to the United States of barbiturates that could be used to in lethal-injection executions.

6.      The number of new death sentences in the United States reaches an historic low of 78, the first time in more than three decades that fewer than 100 people were condemned to death.

7.      Anthony Graves, exonerated from death row for a murder he did not commit, successfully sues the State of Texas for compensation owed to him by law, accepting from the comptroller a check for $1.45 million.

8.      The Texas death penalty is declared unconstitutional by State District Judge Teresa Hawthorne of Dallas, echoing Harris County District Judge Kevin Fine’s earlier ruling, made moot by a plea deal.

9.      The death penalty becomes part of the GOP primary race when Rick Perry elicits applause from a debate audience for presiding over more executions than any governor in history and disbelief from the media for declaring he has never lost sleep over an execution.

10.  Director Werner Herzog successfully releases INTO THE ABYSS, a gritty documentary describing from several points of view a triple murder in Texas and its aftermath. Another documentary involving capital punishment, INCENDIARY, premieres and wins an award at Austin’s South by SouthWest Film Festival.

Other stories in 2011 that Execution Watch designated as especially noteworthy include:

– A district judge in Georgetown takes under advisement a request for a special inquiry into alleged wrongdoing by the top prosecutor in a murder trial that put an innocent man behind bars for 25 years. Michael Morton presented evidence that ex-district attorney Ken Anderson knowingly withheld evidence that might have led to his acquittal.

– The U.S. Supreme Court vacates a $14 million jury verdict against former New Orleans District Attorney Harry Connick Sr. for withholding evidence that might have averted the wrongful conviction and near-execution of John Thompson. A divided court said a prosecutor’s office cannot be held liable for a member’s illegal withholding of exculpatory evidence due to inadequate training.

– The Texas Forensic Science Commission releases its final report on the Todd Willingham case, directing the Innocence Project of Texas to work with the state fire marshall to review more than 700 arson cases for possible wrongful convictions based on outdated science.

– Literary critics respond enthusiastically to the publication of AUTHOBIOGRAPHY OF AN EXECUTION, a highly personal and humanistic memoir by David Dow, litigation director of Texas Defender Service.

– A Louisiana-based coalition of civic and religious groups called I Want to Serve launches a campaign to outlaw the exclusion from capital juries of people who oppose the death penalty.

(END)

The Bureau of Justice Statistics issued a report on December 11, 2011 that contained a table on page 15 with all executions by state since 1930 and since 1977.  Texas is by far the number one execution state in both time periods according to the BJS table, with 761 executions since 1930 and 477 since 1977.  The Texas Department of Criminal Justice has a list that goes back to 1924 and says that a total of 361 people were executed in Texas from 1924 to 1964. There was then an 18 year moratorium on executions in Texas, and add the 477 in the modern era for a grand total of 838 executions in Texas since 1924.

Texas Moratorium Network revised the BJS  table to include executions in 2011 and also added executions in Hawaii and Alaska that occurred after 1930, which were left out of the BJS table. Neither Alaska or Hawaii conducted any executions since becoming states in 1959. In the table below, a handful of states had zero executions since 1930, but there were executions in various numbers in all those states before 1930. The total number of all executions in the U.S. since 1930 is 5,104 . The total since 1977 is 1277.  The table below does not include all the many executions in states prior to 1930. If you count all known executions from the year 1685 to the present, Virginia is the number one state with 1,386 followed by Texas with 1,232.  You can see a list of executions since 1685 here, to which you have to add the ones in the modern era.

Note: Statistics on executions under civil authority have been collected by the federal government annually since since 1930. These data exclude 160 executions carried out by military authorities between 1930 and 1961.

Source: BJS, National Prisoner Statistics Program and Texas Moratorium Network

State                                      Since 1930                    Since 1977

Another judge in Texas has ruled that the Texas death penalty is unconstitutional. This is the second time in less than two years that a judge in Texas has made such a ruling. In 2010, Judge Kevin Fine ruled the Texas death penalty was unconstitutional and then later had to withdraw the ruling. There will be a hearing in January 2012 on the ruling by Judge Teresa Hawthorne in Dallas. Texas Moratorium Network is making tentative plans to be at the hearing, just as we attended the hearing in Houston in December 2010. These type of rulings are likely to continue as more and more judges reach the same conclusion. One day, we expect it will be the U.S. Supreme Court that will rule the death penalty unconstitutional, but until then we are happy to see lower level courts build momentum towards the day when the death penalty will be rejected by the U.S. Supreme Court.

If you live in the Dallas area, we hope you will come to the hearing. We will post the date as soon as we find out.

From the Dallas Morning News:

A state district judge in Dallas County has ruled that a Texas death penalty statute is unconstitutional because it allows prosecutors to arbitrarily seek capital punishment.

Prosecutors are appealing Judge Teresa Hawthorne’s decision and have filed a motion to recuse her from Roderick Harris’ capital murder case.

Hawthorne acknowledged when making her ruling last week that the Texas Court of Criminal Appeals and other courts have “consistently rejected” the reasons that she found the statute unconstitutional, according to a transcript of the hearing. But she said changes in the law can still be made.

Hawthorne, who could not be reached for comment later, said she refused to be a “rubber-stamp judge.” The Democrat took office in January and is a former public defender.

“My decision is not an act of unabashed judicial activism,” she said Monday from the bench. “I remember when women and blacks could not vote. I remember when so-called witches were burned. I remember when gays had to hide to be in the military. My decision is not to buck the system or stir the waters.”

and

Hawthorne ruled that she believed:
The Legislature failed to define terms like “continuing threat” and “moral blameworthiness” for jurors deciding between a life or death sentence.

The Legislature’s definition of mitigating evidence is vague.

State law prevents jurors from knowing that one vote for life can keep a defendant from receiving a death sentence.
The law allowing a judge to enter into evidence “any matter that the court deems relevant to sentence” means that each judge hearing a case has the power to influence a sentence.

“The law should not be arbitrary or capricious,” Hawthorne said in court.

The Dallas County district attorney’s office and special prosecutor Kevin Brooks declined to comment about the ruling or the recusal motion.

Brooks was appointed special prosecutor in the case because he had already been working on the case when he left the DA’s office earlier this year.

Brad Lollar, one of Harris’ defense attorneys, said he believed that the appellate court would be interested in issues surrounding the lack of definitions and the fact that jurors consider whether a defendant would continue to be a threat based on his release into society.

“That’s not going to happen” after sentencing in a capital murder case, Lollar said. “He’ll either get life without parole or death.”

A Harris County judge made a similar ruling on the constitutionality of the death penalty in March 2010. State District Judge Kevin Fine eventually withdrew his ruling and refused to recuse himself from the case.

That case ended in a plea agreement earlier this year when John Edward Green Jr. pleaded guilty to a lesser charge of murder. He fatally shot a Houston woman and wounded her sister in a June 2008 robbery.

The chance that a higher court will agree with Hawthorne is “a long shot,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington. But he said changes in an appeals court’s makeup can produce different rulings on the same issues.

“That’s sometimes how laws get changed,” Dieter said. “What’s been rejected before could be seen differently.”
Lollar pointed to U.S. Supreme Court Justice Anthony Kennedy as an example of a jurist changing his opinion on death penalty issues. Lollar said that within a 10-year span, Kennedy changed his mind on whether the mentally retarded and those who are 17 at the time of the crime could be executed for capital murder. Executions of the mentally retarded and juveniles are no longer allowed in the United States.

“Unless you give the court the opportunity to reconsider, how do you change the law?” Lollar said.

A hearing on the recusal motion is scheduled for January before another judge. Testimony in Harris’ trial is expected to begin in May after a months-long process of jury selection.