« Latest new federal sentencing statistics from the US Sentencing Commission | Main | SCOTUS back in action, with lots of new Stevens speculations »

March 21, 2010

Notable op-ed assailing Texas judge's peculiar recent death penalty ruling

Professor Adam Gershowitz has this notable op-ed in the Houston Chronicle, which is headlined "Rethink death penalty: Judge’s ill-timed ruling invites irrationality in public’s views about capital punishment."  Here is how it gets started:

State District Judge Kevin Fine sparked controversy recently when he ruled that the death penalty was unconstitutional under Texas law. Although he subsequently rescinded his ruling, the damage was done. By overstepping his powers, Fine gave death penalty advocates exactly what they were looking for: another example of a “judicial activist” working to block the public's desire to enforce capital punishment.

When voters hear that a low-level judge has moved to strike down capital punishment, they are likely to conclude that judges micromanage every aspect of death penalty cases and provide careful oversight to guarantee that no innocent people will be executed in Texas. Nothing could be further from the truth.

Appeals in death penalty cases almost never focus on whether the defendant is innocent or whether he or she deserves to die. Rather, appellate judges are obligated to spend their time looking at more mundane process issues, such as whether jury selection was properly conducted or whether the prosecution complied with its discovery obligations and shared necessary information with the defense.

Even if Fine eventually moves to forbid prosecutors from seeking the death penalty in his court, that ruling will be promptly appealed and immediately reversed. If his objective was to throw a wrench into the machinery of death row, his actions actually produced the opposite result. Ultimately, his impulsive ruling will harm those who are seeking to end the death penalty, and it will prevent the public from having a real discussion about whether it makes sense to continue to have capital punishment in the state of Texas.

The problem with capital punishment is not that it is unconstitutional. If it were, how could dozens of federal and state judges have allowed Texas to execute 450 people over the past 30 years? The real problem with the death penalty is that it is terrible public policy that the voters of Texas should reject.

March 21, 2010 at 08:51 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Notable op-ed assailing Texas judge's peculiar recent death penalty ruling:


I would love for the law to change such that innocence would be the key inquiry of any appeal, and the process issues all but eliminated as an avenue for relief.. I don't see that happening any time soon however. If for no other reason than that the rent seeking opportunities of such a system would be so greatly reduced from what we have now.

Posted by: Soronel Haetir | Mar 21, 2010 11:28:38 AM

"I would love for the law to change such that innocence would be the key inquiry of any appeal, and the process issues all but eliminated as an avenue for relief.."

God forbid somebody actually gets a fair trial.

Posted by: JC | Mar 21, 2010 1:46:30 PM

The key line in the story is this: "Appeals in death penalty cases almost never focus on whether the defendant is innocent or whether he or she deserves to die."

That's because the defendant in these death penalty appeals is NOT innocent and DOES deserve to die. If there were any serious question of innocence or desert, you can bet appellate counsel would be screaming bloody murder, as it were.

JC --

"God forbid somebody actually gets a fair trial."

And if after a fair trial, the jury convicts and fixes the sentence at death, what say you?

That the fair process upon which you insisted now be ignored because it produced the result you didn't want?

The procedural hurdles to getting the DP in this country are the most exacting and thorough of any criminal litigation in the world. For you, it's not really about process. It's about result. You therefore have little grounds for criticizing Soronel because he ALSO focuses on result.

For that matter, there is little grounds for criticizing anyone for focusing on result, because the main point of a fair process is to produce a correct and legal result.

Posted by: Bill Otis | Mar 21, 2010 2:49:47 PM

Ok Bill - you are so confident of the process, I take it that you are writing to Gov. Perry in Texas urging him to agree to the dna testing called for by Hank Skinners attorneys? - something that the Courts have failed to grant, bogged down as they are in checking whether a certain appeal was made before or after a particular date etc etc, and then when an appeal is actually considered, dismiss it in 2 pages without any attempt to address the claims made or to explain the grounds for rejection. That really is a magnificent example of "the most exacting and thorough of any criminal litigation [process]in the world."

Texas Appeals Court Denies Skinner's Habeas Application

In a two-page order, the Texas Court of Criminal Appeals today denied a request by lawyers for condemned prisoner Hank Skinner to hold a hearing on the evidence of his innocence and conduct DNA tests on items found at the murder scene. Those untested items include a rape kit, blood on two knives, hair found in the female victim's hand, skin found under her nails and a windbreaker that looked strikingly similar to one worn by an alternative suspect in the case.

The appeal "is dismissed and his motion for a stay of execution is denied. Applicant's motion for additional time to conduct an investigation is also denied," the court ruled.

The legal team's habeas application contended that Skinner had been improperly denied a review of his case in the trial court. But the panel of Texas appellate judges ruled that Skinner's appeal involved a "subsequent" petition, meaning that the evidence already had been heard -- even though the record shows otherwise.

"Because state officials continue to refuse to conduct readily available DNA testing on evidence from the crime scene that could clear him, there remains a serious risk that Texas, one week from today, will execute an innocent man," said Rob Owen, lead counsel for Skinner, in a written statement.

Owen added that he "remain[ed] hopeful that the U.S. Supreme Court, which has often found it necessary to correct egregious injustices in Texas capital cases, will intervene to protect Mr. Skinner's right to pursue that DNA testing in federal court.

"We also trust that Governor Perry, having heard the voices of Texans insisting that the death penalty not be carried out while there are unresolved doubts about a defendant's guilt, will do the right thing and postpone Mr. Skinner's execution until all the facts are in.

"Time is growing short, and ultimately someone must have the courage and the common sense to step forward and ensure the reliability of this verdict through the best available scientific technology," Owen said.



Posted by: peter | Mar 21, 2010 3:23:13 PM

peter --

"I take it that you are writing to Gov. Perry in Texas urging him to agree to the dna testing called for by Hank Skinners attorneys?"

I take it that you are writing to Gov. Perry urging him to go forward with the execution immediately if such a test were to fail to cast doubt on the verdict?


My, my.

You guys spun us once with this new-DNA-test stuff in the Roger Keith Coleman hoax. When you finish with the old business -- admitting, finally, that Coleman was correctly found guilty and executed -- we can move on to new business.

Posted by: Bill Otis | Mar 21, 2010 4:48:57 PM

"That the fair process upon which you insisted now be ignored because it produced the result you didn't want?"

I've got no problem with people who are guilty being convicted. I don't believe in the death penalty, but that's a separate issue. Guilty or not, everyone is entitled to a fair trial and a vigorous defense. Taking someone's freedom away is an extremely serious thing for the government to do. That's why we have very strict procedural rules regulating how the government can do it.

Posted by: JC | Mar 21, 2010 5:08:07 PM

peter --

One more thing: Just as you neglected to mention that the UK death penalty debate was sponsored by and held before an abolitionist organization, instead telling us only that it was a "legal charity," you neglected today, while criticizing the thoroughness of death penalty litigation in this country, to tell us up front that Skinner was convicted in March 1994 and has had multiple trips to the courts, state and federal, to gripe about his conviction for SIXTEEN YEARS.

You're just proving my point. It's not about process. It's about result.

Posted by: Bill Otis | Mar 21, 2010 5:09:14 PM


You are an asshole.

Wallow in it.

Posted by: anon | Mar 21, 2010 6:06:28 PM

Bill's a good guy, actually.

Posted by: JC | Mar 21, 2010 6:55:14 PM

Bill is a good guy, as in, "not a bad guy," but do we really want the perception that sentencing law and policy is founded on sadism? That is not a question without foundation and it is not a personal attack against Bill. It is a question inspired by Jerold J. Abrams' "From Sherlock Holmes to the Hard-Boiled Detective" as found in The Philosophy of Film Noir, edited by Mark T. Conard.

"First-Person Perspective: Sadism versus Masochism

"It is this lonely, isolated perspective on the world that is brought to a head with the first-person voice-over of noir. Of course, it's true: both detective forms use a first-person perspective. But there is a key difference: Watson narrates (to us) about the great Sherlock Holmes, while the hard-boiled detective tells the story of his own advertures. And, in hearing these two different styles, we also get different aesthetic feelings: for the pleasure of hearing about Holmes are intellectually masochistic, meaning pleasures of being intellectually subordinated (typically for the purpose of learning), while the pleasures of watching the hard-boiled detective are intellectually sadistic, satisfactions derived from imagining ourselves harming others." (p 76)

Isn't the world view of American media, from film to news, to attack and subordinate all at once? In other words, isn't the media's intention to subordinate and then to incite? Even when not good and effective public policy, the required narrative is good for ratings because we always want an ending to the dramatic narrative, and that ending is sometimes the death penalty. So there is a subliminal narrative at work. Constantly.

Abrams explains the different mazes. The mannerist maze has a way out through reason and logic. There is a solution. The rhizome maze, or the "rhizomatic labyrinth," has no solution.

"Of course, as I said, things have a tendency to change, and this applies to the mannerist maze too. Its days were numbered. True, it worked for a while, until Nietzsche, anyway, and then . . . whoosh! Into thin air: pure reason was gone as well, that age-old archaeological dig for the faculty of rationality has uncovered only 'will to power.' So the Enlightenment willowed, and a new dark age descended on humanity and, with it, the third form of labyrinth. Pioneered in large part by the American philosopher Charles S. Peirce (1839-1914) and later by the French philosphers Gilles Deleuze and Felix Guattari--this is the labyrinth of unlimited clues, or the "rhizomatic labyrinth.".... As a labyrinth, the rhizome has no center, it has no perimeter; and worst of all, it has no way out. Here, the Minotaur is still the form of the labyrinth itself (as in the mannerist maze), but now there is no escaping him with reason (or faith, or any combination of the two). For every Ariadne's string only ever leads further into the labyrinth." (p 72)

Is it any wonder the conflict between our modern age and the Age of Enlightenment that inspired our Constitution? These few words may explain the anger and rage even as the crime rate continues to plummet, and explain support for the death penalty along with why sentences ratchet up. Nietzsche warned of this: "But thus I counsel you, my friends: Mistrust all in whom the will to punish is powerful." Thus Spoke Zarathustra, Ch.29, The Tarantulas.

For a little humor. Observe Bill try to subordinate me with his usual games.

Posted by: George | Mar 21, 2010 9:19:20 PM

Bill is a good guy, as in, "not a bad guy,"

No, he is someone who has dedicated his entire life to public service. That is an honorable and admirable endeavor.

Posted by: JC | Mar 21, 2010 9:45:51 PM

And one of those games to to select a sentence or a phrase and consider it the juggler. Bite it hard and ignore the body of any argument.

Posted by: George | Mar 21, 2010 11:26:10 PM

"And one of those games to to select a sentence or a phrase and consider it the juggler. Bite it hard and ignore the body of any argument."

I would suggest that you put forth a substantive argument. Any damned fool can throw a fit.

Posted by: JC | Mar 22, 2010 12:02:45 AM

Go on, George! Let's hear it. Spell it out.

Posted by: JC | Mar 22, 2010 12:27:12 AM

Still waiting.

Posted by: JC | Mar 22, 2010 12:56:57 AM

Collegues, do the following sample of recent cases inspire us to belive that prosecutors are devoted to doing justice as opposed to obtaining convcitons:

Gonnella v. State, 686 S.E.2d 644 (Ga.,2009) (murder conviction reversed where
Prosecution failed to disclose deal with accomplice); State ex rel. Engel v. Dormire 2010 WL 623655 (Mo.,2010) (kidnapping conviction reversed where state failed to disclose letter suggesting that a prosecution witness had been paid for his testimony); Valdovinos v. McGrath, No. 08-15918 , 2010 WL 789536 (9th Cir. 3-10-10) (murder conviction vacated because "A pattern of non-disclosure permeated the proceedings against [petitioner]" which deprived petitioner of due process.); Wilson v. Beard , 589 F.3d 651 (3d Cir. 2009) (murder conviction and sentence of death vacated because of prosecutor’s suppression of favorable information regarding witnesses criminal convictions and providing money to witnesses); Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009) (murder conviction and death penalty vacated because of prosecutor’s failure to disclose exculpatory report from ‘witnesses who would have cast serious doubt on the State’s case.” ); U.S. v. Robinson, 583 F.3d 1265 (10th Cir. 2009) [conviction reversed because of district court’s refusal to disclose informant’s mental health records to defense which violated Due Process); U.S. v. Price 566 F.3d 900 (9th Cir. 2009) (conviction reversed where prosecutor violated his due process duty under Brady to learn the results of investigation into criminal past of government witness); US. S. v. Reyes 577 F.3d 1069 (9th Cir. 2009) (government violated due process by not disclosing favorable evidence discovered in parallel SEC proceedings).

Posted by: curious | Mar 22, 2010 1:20:43 AM

As much as I hate the death penalty, I find it hard if not impossible to conclude that it's unconstitutional per se because the constitution talks about not being deprived of LIFE, liberty, etc without due process. So it seems to me that it is implicit that you can be deprived of life. I don't like it, but so it goes.

I'm actually not against the death penalty on moral grounds. Rather, after having practiced criminal defense for a few years I am against the DP on process grounds - the system is horribly unfair, it's completely gamed so that the prosecution has all the advantages, and all the judges are "tough on crime" prosecutors (I won't even call them former prosecutors). Especially in places where the DP is likely to be inflicted. You guarantee a perfect trial and no "harmless error" and I'll fully support the death penalty. Might take 6-10 retrials to get a conviction, but I'll stand by the execution in that case. No "harmless error" in death penalty cases should ever be permitted. No error is "harmless" when the punishment is death.

Posted by: BruceM | Mar 22, 2010 8:33:04 AM

However one feels about the morality of the imposition of the death peanlty, the list of cases posted by "curious" should give one pause as to the process by which the penalty is imposed. Can we be comfortable that the process is fair when, as illustrated by these cases, state and federal prosecutors apparently view their duty to do justice as a mission to obtain convictions at any cost. Do federalist and Bill Otis and other conservatives care to comment on these cases and what they demonstrate?

Posted by: anon14 | Mar 22, 2010 11:53:48 AM

I completely and utterly disagree with Bill Otis about 99% of the time, but ad hominem attacks add nothing to the conversation.

Posted by: arx | Mar 22, 2010 12:10:18 PM

Bill Otis is still an asshole. He's an even bigger asshole than he was four comments ago. In fact, he's now an asshole's asshole. Not to mention being a holy patriotic asshole.

He should join assaholics annonymous.

Posted by: anon | Mar 22, 2010 1:16:30 PM

anon--Don't you have recess coming up?

Posted by: Res ipsa | Mar 22, 2010 3:07:47 PM

Curious: Superb listing of cases of prosecutorial incompetence or misconduct. Thank you. Useful in the real world.

Question. Do all licensed lawyers have a duty to report the involved prosecutors for per se disciplinary actions. A court determined the misconduct, and it is a settled matter.

If the licensed lawyers fail to report the involved prosecutor, especially if in their own states, should they report themselves for failure to report another?

Posted by: Supremacy Claus | Mar 22, 2010 5:25:17 PM

Well gads, guys. I guess I should appreciate the attention.

JC -- Thank you.

arx -- Correct.

Res ipsa -- It's going to take longer than recess.

George -- I will often take one phrase, just as many posters do, because one phrase can reveal a lot, and no one can answer everything line by line, although I try to give it more of a shot than most.

Bruce M. -- "You guarantee a perfect trial and no 'harmless error' and I'll fully support the death penalty." Well, you guarantee no more John Couey's or Timmy McVeigh's and I'll support abolition. P.S. You don't need a perfect trial to know that the defendant did it and deserves what he got. You just need to be awake during the testimony.

anon 14 -- In order to show that the DP should NEVER be imposed, you have to show that one can NEVER have confidence in the outcome. That is impossible, and wisely you don't attempt it. What you show is that every once in a while, the prosecutor is incompetent or even crooked. This means that prosecutors are human beings.

Yes, Mike Nifong was real. He was a crook and a thug. Lynne Stewart was also real. She was neither a crook or a thug; instead, she was a traitor. Neither of these facts has beans to do with whether McVeigh was properly convicted and executed.

anon -- I think your analysis needs to be a tad more specific there in Step B.

Posted by: Bill Otis | Mar 22, 2010 9:56:06 PM

Bill that's a load of crap. You watch too many TV shows. In real life you do NOT always know the guy did it. Real life is not like SVU or CSI, where they show the guy committing the crime and then show the trial, where you know with 100% absolute certainty that the guy did it. In real life you hardly ever have such conclusive evidence, and if you do then there are other issues involved, like self-defense, insanity, etc. Quit watching those dumb cop shows, and quit watching Fox News. I can tell you're a Fox News junkie, it rots your brain and makes you sound stupid to anyone but other Fox News addicts. Go watch MSNBC for a while.

Posted by: BruceM | Mar 23, 2010 11:03:19 AM

Just in case anyone missed it:
THE death penalty has been abolished forever in Australia after Federal Parliament yesterday [March 12, 2010] passed laws ensuring it could never be reinstated.

Both sides of politics supported the move, which is largely seen as symbolic.

The last time the death penalty was used was the hanging execution in 1967 of Ronald Ryan, guilty of shooting and killing prison officer George Hodson while escaping from Pentridge Prison in Melbourne.

Posted by: peter | Mar 23, 2010 11:56:30 AM

BruceM --

"Bill that's a load of crap. You watch too many TV shows. In real life you do NOT always know the guy did it."

I was an Assistant US Attorney for 18 years, so I was amused to find out that my acquaintance with the system comes from watching TV.

One thing I found out over the years was that the one person in the system more jaded than the prosecutor is the defense lawyer. This is because they get lied to by their sleazy clients even more than prosecutors get lied to.

Do you actually think the people who show up at your door are innocent? Do you think they belted the victim over the head with a tire iron in "self defense" (while then making off with his wallet)? Do you think it was "insanity" that led your meth dealer client to make a fast buck in the druggie business?

And do you think that there was some doubt or unfairness in the McVeigh trial that should have made us hesitant to execute him?

Posted by: Bill Otis | Mar 23, 2010 12:10:32 PM

peter --

In a democracy, today's majority cannot permanently dictate to tomorrow's. If a large enough future majority wants to change back from not-X to X, then X is coming back.

Posted by: Bill Otis | Mar 23, 2010 12:31:51 PM

Bill I did defense for several years, both state and federal, and I'm not an idiot - I know my clients are quite often guilty (though nearly **always** of lesser crimes than those with which they have been charged). Whether they're factually innocent or not is not the point. You sound like Lynn Cheney.

I quit doing criminal defense because it was so futile. All the judges are ex-prosecutors. All the jurors are pro-police fascists who come to court with an almost irrebuttable presumption of guilt ("if they are there, then they must have done something"). But if that's not bad enough, all the rules have been changed, one by one, over the past 80 or so years, to make it practically impossible to get an acquittal. And every time a high profile criminal defendant does manage to get an acquittal, the law is changed ASAP to make sure the same type of acquittal won't happen again.

No, I'm not bitter because I lost every case. I did manage to get some acquittals here and there. But after 3 years of it, I was jaded and after 4 years I decided my time would be better spent doing some other type of law. Prosecutors are crazy and cops are pathological perjurors (they "Know" that it's okay to commit perjury to keep the scumbags off the streets and that no prosecutor will go after a Boy in Blue for doing so).

I'd rather have 100 guilty people go free than 1 innocent person locked up. That used to be the common sentiment amongst civilized peoples. But nowadays, people like yourself won't hesitate to lock up an innocent person. Hell, for people like you it's better to have 100 innocent people locked up than 1 guilty person set free. After all, the 100 innocent people won't be raping and killing any cute white skinned, blond haired, blue eyed puffy-cheeked children on the streets like the guilty one will... so no harm if they get locked up.

Also, there are many cases where the prosecution proves guilt by a preponderance of the evidence (more likely than not guilty) but nowhere close to beyond a reasonable doubt, yet each and every time that results in a guilty verdict. The prosecution should have to convince each and every juror of guilt. A hung jury means reasonable people had doubts about guilt, thus it was not proved beyond a reasonable doubt, and it should result in an acquittal, not a mistrial and redo. Also there should be 3 verdicts a jury chooses from - guilty, not proved, and innocent (I believe they do this in Scotland).

You keep citing McVeigh. I have no problem with someone who committed the OKC bombing being executed. I didn't complain when they executed McVeigh. That was a very high profile case and the evidence of guilt, which is all public, was pretty compelling. Hell he basically confessed, as I recall (I forget the details it was a long time ago). The same is not true in the average texas state death penalty case, especially here in Harris County, the DP capital of the world.

I think prosecutors should have to switch off and work as public defenders for half the time. 6 months prosecuting, 6 months defending. That's the way they often do it in the military. Being a prosecutor for any significant period of time makes people sociopaths.

After 18 years as a prosecutor, I seriously woudln't trust you to watch my dog.

Posted by: BruceM | Mar 23, 2010 12:32:40 PM

Bill - a little more:
Australia Bans Torture And Prohibits Death Penalty
Source: Australian Human Rights Commission
The Australian Human Rights Commission today welcomed the passage of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 which criminalizes torture and prohibits the death penalty.

“With this landmark legislation now in place, Australia has taken a further important step towards meeting our international human rights obligations,” said Commission President Cathy Branson QC.

Upon signing the Convention against Torture, Australia made a voluntary commitment to prohibit torture in all its forms. The Convention requires Australia to ensure that all acts of torture are offenses under domestic criminal law.

“Torture, defined as any act by which severe pain or suffering is intentionally inflicted upon a person by a public official for purposes such as obtaining information or a confession, is barbaric and inhumane,” Ms Branson said.

“This new legislation will criminalize acts of torture whether committed within or outside Australia.”

The Bill also amends the Commonwealth Death Penalty Abolition Act 1973 to extend the application of the current Commonwealth prohibition on the death penalty to State laws.

“The death penalty has been abolished throughout Australia and the passage of this bill ensures that it cannot be reintroduced anywhere in Australia,” Ms Branson said.

“The passage of this bill fulfills Australia obligations under the Second Optional Protocol to the International Covenant on Civil and Political Rights which requires that Australia take all necessary measures to abolish the death penalty within its jurisdiction.

“The death penalty has no place in a humane society. By ensuring that it cannot be reintroduced, the government is ensuring the enduring protection of fundamental human rights.”

Posted by: peter | Mar 23, 2010 4:30:55 PM

peter --

I repeat, in a democracy, today's majority cannot permanently dictate to tomorrow's. If a large enough future majority wants to change back from not-X to X, then X is coming back.

To translate: The provision barring re-introduction can be repealed.

BTW, the ATTEMPT to bar re-introduction speaks volumes about how lacking in confidence the abolitionists are that they can hold on to their victory today. If their case is so strong, why the need to attempt to ban repeal? What are they afraid of? Democratic rule?

Posted by: Bill Otis | Mar 24, 2010 4:13:53 AM

No Bill. They have simply accepted that the death penalty is inconsistent with a view of human rights to which they wish their nation to be compliant, and which is enshrining in major international legislation. This was an overwhelming political decision by both right and left. In a true democracy, governance is not simply about asserting the view of a constantly volatile political majority. The bedrock of society is its values. In the US, many of these are encapsulated in the written Constitution. The judgment to date of the Supreme Court is that the death penalty does not violate the Constitution. Not everyone agrees with that, but what is certain is that the Constitution does NOT state that the death penalty positively represents a core value of American society. Indeed, large swathes of American society has already rejected it. This is an issue of human rights, and as such it should be a matter of collective governance by liberal and conservative politicians to progress the value structure of the United States. Whether you choose to acknowledge the established judgments of the wider international community and institutions is incidental, though they should be influential in the debate.

Posted by: peter | Mar 24, 2010 2:22:45 PM

peter --

1. People sure of the rightness of their position have no need to try to block future legislators from re-considering it. Indeed, they would WELCOME reconsideration, the better to display their winning arguments.

2. You don't refute my central point, i.e, that the Austalian repeal is not irreversible. The no-reintroduction provision can ITSELF be repealed.

3. A democracy can require super-majorities, sure. Our Constitution does for amendments, and Senate rules do in order to avoid a filibuster. The flip side of that coin is that, when you DO get a super-majority, you can do what you want.

4. The United States is a generous and benevolent country and has no need to genuflect before international opinion. It was international opinion that left Saddam in place for so long, merrily butchering away; and international opinion that now mumbles and frets while Ahmadinejad makes the Bomb to launch the second Holocaust.

Posted by: Bill Otis | Mar 24, 2010 6:27:08 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB