Texas Moratorium Network just returned from day one of the hearing in Judge Kevin Fine’s courtroom in Houston on the constitutionality of the Texas death penalty. When we were there, we got a list of scheduled witnesses over the next two weeks.

December 6
Richard Dieter, Death Penalty Information Center
Sandra Thompson, Timothy Cole Advisory Panel member, expert on inadequate discovery
Brian Benken , Prosecution case against John green (defense investigator)
Jim Willis, Prosecution case against John green (defense investigator)

December 7
Brandon Garrett, Law expert on role of eyewitnesses, informants and junk science in wrongful convictions.
Alexandra Natapoff, Expert on snitches

December 8, 9 and perhaps 10
Todd Willingham and Claude Jones witnesses

December 10
Wanda Foglia, Capital Jury Project researcher – expert on risk factor of death qualification of jurors and on distortion of guilt-innocence determination by premature penalty deliberation

December 13
Jennifer Dysart, Eyewitness expert
Jim Marcus, Expert on Texas capital habeas corpus

December 14
Christina Swarns, Histroy of Harris County DA office and race-based jury selection-drawing on documents obtained in other litigation
Sam Sommers, Jury researcher- effects of non-diversity in juries on accuracy of decision making.

December 15
Simon Cole, NAS report and junk science (in general); fingerprint comparison in particular
Sam Gross, Expert-researcher on wrongful convictions

December 16
Bryan Stevenson, Expert on best practices for rooting out race-based jury selection by prosecutors
Rob Owen, Counsel for Ernest Willis
Maurie Levin, Expert on Texas capital clemency procedure
Mark White, former governor of Texas on th eneed for certainty in capital convictions

Anthony Graves and supporters after he was given $3,000 in donations collected by Texas Moratorium Network.

Texas Monthly’s Pamela Colloff has written a follow-up article, “Innocence Found”, to her article in October “Innocence Lost“, which came out shortly before Anthony Graves was released after 18 years in prison facing a death sentence for a crime he did not commit. Now that Anthony is out, she tells the story in the new article about how the new prosecutors, primarily Kelly Siegler, came to understand he was innocent. It also includes an account of Anthony’s last hours in jail and how he got the word that day that he was walking out a free man.
Read the entire article here.

It is a long article, but here are a couple of excerpts from the article:

shortly after four o’clock, when the jail supervisor appeared outside his cell. Without explanation, the jailer unlocked the cell door and ordered Graves to follow him. Graves was allowed to walk without handcuffs. Bewildered, he was led to an interrogation room, where he saw that Cásarez and her co-counsel Jimmy Phillips Jr. were waiting. He was surprised, since they rarely visited unannounced.

Cásarez took his hands in hers and stared at him intently. “Remember you telling me that God is good?” she began. Years earlier, he had told her a story about how, on the day he learned that his conviction had been overturned, he had wanted to scream and shout, but he was mindful of being surrounded by men who still had execution dates. So instead he had looked up to the ceiling of his cell and said simply, “God is good.”

Graves nodded, studying her face for a clue as to what was going on.

“God is good,” Cásarez said, struggling to maintain her composure. “All charges have been dropped.”

He looked at her, dumbfounded.

“You’re free,” she said more emphatically. “You’re going home.”

“Are you playing with me?” he whispered.

Cásarez shook her head. “It’s over,” she said. “It’s finally over.”

On the table beside her was a dismissal order from the court filed at 3:57 p.m. that stated, “We have found no credible evidence which inculpates this defendant.” The decision to drop all charges had come so suddenly that the defense team had only learned the news earlier that afternoon. As Graves leaned against Cásarez, he broke down.

They stood together and cried for a long time. “Hey,” Cásarez said finally, smiling at the irony of what she was about to suggest. “Let’s get out of here.”

and

That Siegler—known for having been one of the most aggressive prosecutors in Harris County, which has sent more people to the death chamber than any other county in the nation—had backed away from a capital murder case had the entire Houston defense bar talking. And so on a brisk November morning one week after the press conference, I visited her at her well-appointed Memorial home to find out what, exactly, had happened. Scattered across her dining room table, where we sat and talked, were yellow legal pads filled with her voluminous notes on the case. “I got sworn in as special prosecutor in February 2010, and I brought nineteen banker’s boxes full of documents home from Brenham to read,” she told me. (Most rural counties rely on special prosecutors to try death penalty cases because of their complexity; prior to Siegler, the case had been handled by special prosecutor Patrick Batchelor and lawyers at the attorney general’s office.) As she had sifted through nearly two decades’ worth of court papers—a task that took her six weeks—she had become increasingly puzzled. The Texas Rangers’ reports, she noted, focused almost exclusively on Carter. And their investigation had not uncovered any discernible motive for Graves.

“Common sense tells you that a person doesn’t stab babies unless he’s really mad about something, and Graves didn’t know the Davises,” she said. “It didn’t make sense.” She was particularly struck by the absence of physical evidence. “Why wasn’t Graves burned too?” she said, referring to Carter’s extensive injuries. “If he stabbed six people, why didn’t he have any cuts or marks? Why was there no blood on his clothes or in his car?” Siegler told me she had still been operating under the assumption that Graves was guilty, but she knew that she would need new information—such as a piece of evidence that could undergo DNA testing—to make her case.

For more than three hours that morning, Siegler led me through the transcript ofThe State of Texas v. Anthony Charles Graves, pointing out where she was troubled by Sebesta’s tactics. “This is from a pretrial hearing on July 22, 1994,” she said, ticking off the volume and page number in the court record. Dressed casually in jeans, the 48-year-old career prosecutor, who was narrowly defeated in 2008 for Harris County DA, delivered her comments with the same focused intensity of a good trial lawyer during closing arguments. “Sebesta says, ‘We want to put the court on notice that there is a strong indication that this defendant, Anthony Graves, may have been involved in the yogurt shop murders in Austin, Texas,’ ” she said, arching her eyebrows in incredulity. “Sebesta is accusing him of participating in another capital murder—and with what evidence?” she said. (No one else has ever suggested that Graves had anything to do with the infamous 1991 quadruple homicide.)

Later, she pointed to a moment during the trial when Sebesta announced outside the presence of the jury that Graves’s girlfriend, Yolanda Mathis—the defense’s most important alibi witness—had become a suspect herself. The Rangers who originally investigated the case told Siegler that, in fact, Mathis had never been a suspect. Still, Sebesta asked the judge to warn Mathis of her rights before she took the stand. “If someone needs to be warned of their rights in a criminal trial, they can’t be called to testify,” Siegler explained. “Sebesta knew what a good witness she was—he had heard her grand jury testimony—and he didn’t want the jury hearing what she had to say.” His gamble worked: Yolanda, who became hysterical, left the courthouse. “Then he had the nerve in final arguments to say, ‘Where’s Yolanda?’ ” said Siegler. “And the jury never knew why she didn’t show up.”

Siegler’s concerns mounted, she told me, as she realized that the trial strategy she had initially counted on was doomed. “My plan had been to find enough evidence to indict Theresa Carter again, and then flip her,” she said, referring to Robert Carter’s wife, Cookie, who had been charged in the Davis murders and held in the county jail but never brought to trial. “But the more I read, the more I realized that we didn’t have anything on Theresa Carter. I couldn’t figure out how she’d been indicted.”

Siegler made a lengthy list on legal pad paper—her “to-dos,” as she called them—of everyone who needed to be interviewed, from former cell mates of Graves’s to people who had not been contacted since the 1992 investigation. She wanted to see what information shook out, if any, that she might be able to take to trial. In the process, she would need to conduct a wholesale reinvestigation of the case. That Graves was in fact innocent did not sink in until later. “My thinking went from ‘We’re going to get this ready for trial’ to ‘Whoa, this is going to be hard to get ready for trial’ to ‘Okay, can we even go to trial?’ ” she said.

In April, Siegler had to shift her focus to another death penalty case she was handling for Burleson County. The Myron Douglas Phillips case, which was slated to go to trial in July, would occupy the rest of her spring and summer. When she saw Parham and Hanak at a pretrial hearing, she warned them of what she had found. “Guys, I’ve read everything on Graves, and we have big problems,” she said.

ON SEPTEMBER 27 SIEGLER SAT DOWN with Graves’s attorneys for their extraordinary face-to-face meeting. During the wide-ranging discussion, which spanned two hours, Siegler focused her attention on Cásarez, asking her detailed questions about her research: What was the name of the polygraph examiner who had administered a test to Carter on the eve of his testimony at Graves’s trial? Exactly when did the Jack in the Box clerk see Graves on the night of the crime? Had she ever spoken with Cookie’s cell mate? Initially, Siegler told me, she had discounted Cásarez and her undergraduate journalism students at the University of St. Thomas, in Houston. “I thought they were exaggerating the facts because they were rabid anti–death penalty people who had an agenda,” she said. “But we wouldn’t have gotten to this point if not for their work. As we did our investigation, we found that they were dead-on. Every aspect of the case fell apart when it was critically examined.”

Motion to Declare Texas Death Penalty Unconstitutional as Applied

A hearing on the constitutionality of the Texas death penalty will be held in Judge Kevin Fine’s courtroom in Houston on Monday, December 6, at 9 AM. Read more at the Texas Tribune.

If you live in Houston or can be there, there will be a demonstration against the Texas death penalty outside the courthouse at 8 AM on Monday (RSVP on the Facebook event page) We will go inside for the hearing at 9 AM.

Location: Harris County Criminal Justice Center
               1201 Franklin, 19th Floor
               Houston, Texas  77002

Texas’ use of capital punishment will undergo legal scrutiny at this hearing. Evidence and arguments will likely be presented that there is substantial risk that the state’s death penalty law does not adequately protect against the execution of an innocent person.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. Green’s defense attorneys will argue that a number of factors in Texas’ death penalty system increase the risk of wrongful executions in Texas, including a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions and a history of racial discrimination in jury selection.

Events are building in Texas that are similar to events in Illinois that led to a moratorium on executions there in 2000. In 1999, Illinois created a couple of commissions to study the death penalty, the Task Force on the Death Penalty was created by the Illinois legislature and the Illinois Supreme Court established a study committee on the death penalty. Then in 2000, a moratorium was declared in Illinois and the governor established the Commission on Capital Punishment to study flaws in the administration of the Illinois death penalty and recommend reform.

The Texas Legislature should also enact a moratorium on executions in the upcoming session and create a commission to study the death penalty.

A hearing on the constitutionality of the Texas death penalty will be held in Judge Kevin Fine’s courtroom in Houston on Monday, December 6, at 9 AM. If you live in Houston or can be there, there will be a demonstration against the Texas death penalty outside the courthouse at 8 AM on Monday (RSVP on the Facebook event page) We will go inside for the hearing at 9 AM.

Location: Harris County Criminal Justice Center
               1201 Franklin, 19th Floor
               Houston, Texas  77002

Texas’ use of capital punishment will undergo legal scrutiny at this hearing. Evidence and arguments will likely be presented that there is substantial risk that the state’s death penalty law does not adequately protect against the execution of an innocent person.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. Green’s defense attorneys will argue that a number of factors in Texas’ death penalty system increase the risk of wrongful executions in Texas, including a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions and a history of racial discrimination in jury selection.

State District Judge Kevin Fine of the 177th Criminal Court in Harris County (Houston) set the hearing for Dec. 6 as part of a pretrial motion in which two defense attorneys for a Houston man facing a possible death sentence asked that Texas’ death penalty statute be declared unconstitutional.

In March, on a motion filed by attorneys for John Edward Green Jr. (facing death for the 2008 robbery and murder of Huong Thien Nguyen in Houston), Fine ruled that capital punishment as practiced in Texas is unconstitutional for failing to adequately protect the innocent. Fine quickly rescinded that original order, but he has granted Green’s attorneys the right to a hearing on the matter. Green’s attorney Casey Keirnan told the Associated Press that he expects the hearing could last up to two weeks and that death penalty experts from around the country will likely testify. “I think everybody in the United States would agree that the possibility exists” that an innocent person has already been executed, he said.

TDCJ is refusing to follow an order from the Texas Attorney General to release names of suppliers of lethal injection drugs. The Statesman reported on the issue in last Saturday’s paper when some documents were released by TDCJ but not the names of the suppliers of the drugs:

Scott Cobb, president of the Texas Moratorium Network, an Austin-based death penalty abolition group, said the documents shed new light on the process.

“The fact that the doses of (sodium thiopental) expire in March could mean they will have to change the drugs they use or find a supplier — and that’s significant,” he said. “No one has answered how they get these prescription drugs legally to execute people.”

Now an editorial in today’s Austin American-Statesman says, “there is no ambiguity in the phrase “may not withhold,” but the prison system has not given up its love of secrets — and has not revealed the names of the suppliers of the drugs”.

“The prison system should disclose the information as the latest ruling orders.

Furthermore, instead of wasting public time and money defending the indefensible, the prison system should be answering questions about how it intends to carry out executions if a key ingredient in the lethal cocktail is unavailable”.

More from Statesman:

Texas has the busiest execution chamber in the country, and Texans have a right to know whether the state’s supply of the lethal drugs is sufficient to meet court-mandated executions. Texans also have a right to know how the agency responsible for executions will meet its obligations if the supplies run out.

Prison system lawyers argued that releasing the information would somehow stoke violent anti-death penalty demonstrations — even though there is no history of violent anti-death penalty demonstrations.

“The release of any of the information would be akin to a local DPS office providing a requester (a potential terrorist) with how much ammunition was stored in the office,” prison agency lawyer Patricia Fleming argued in urging that the information be withheld.

Assistant Attorney General Leah Wingerson rejected those arguments in great detail.