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January 25, 2017

Questions about guilt phase theory of case and misconduct surround Texas death row inmate schedule for next execution

Texas is scheduled to carry out its second execution of 2017 tomorrow, but there are some seemingly serious questions about the guilty theory of the case and the prosecution's conduct.  A local article and a Slate commentary provides the particulars:

January 25, 2017 at 09:51 AM | Permalink


Doug, when you say "seemingly" there are questions about his guilt. He participated in an armed robbery, and whether he or his accomplice was the triggerman seems completely irrelevant when it comes to guilt.

Do you disagree?

Posted by: federalist | Jan 25, 2017 10:09:04 AM

WO Holmes has never been wrong. An article criticized his support of the felony murder rule. I redid their arithmetic correctly. The rule did deter crime, and Holmes still has a track record of being right 100% of the time.

Posted by: David Behar | Jan 25, 2017 10:42:45 AM

This is the law of parties issue again, and Texas is one state that continues to bias judgements in favor of death even in the face of innocence. If this execution goes ahead it won't be the first innocent man the state has murdered in these circumstances. It is no surprise that junk forensics may also be an issue, and even less that a rogue prosecutor rigged the jury and more. This is Texas at its worst.

Posted by: peter | Jan 25, 2017 11:33:20 AM

peter, it is stunning that when, confronted wth the absolute truth that "innocence" is not a legitimate argument here, you raise specter of an innocent man being executed.

Posted by: federalist | Jan 25, 2017 2:00:27 PM

federalist, I disagree that in the course of a death sentencing trial, "whether he or his accomplice was the triggerman seems completely irrelevant," especially if a key part of the case for trying and sentencing this defendant to death was that he was the shooter and that his accomplice was a lesser participant.

For the record, I do not think it is fair to say Terry Edwards is "innocent" or to assert forcefully that Texas might be about to execute an innocent man. But I do think it fair to say there are "questions about guilt" when an argument on appeal before a man is to be executed for shooting two people in fact shot two people.

That all said, without digging more into the case, I do not understand why issues surrounding this degree of guilt have not been sufficiently resolve a full 15 years after the crime. I am sure there are all sort of (sound?) reasons that these concerns are being raised now at the 11th hour, but I continue to find disconcerting that many years of litigation seem not to provide satisfactory resolution of even the basic facts of the crime of conviction.

Posted by: Doug B. | Jan 25, 2017 2:42:46 PM

Doug, I did not say that the triggerman/non-triggerman status is irrelevant when it comes to sentencing--I said it is not relevant when it comes to guilt. (Remember, there is a guilt/innocence phase and a sentencing phase.) So I think your response shows that my criticism was dead-on. As you know, as a knowing participant in a robbery, Edwards was on the hook for the murder whether he shot the guys or the accomplice did. In other words, my accomplice shot them ain't a defense. So, in other words, there really aren't questions about guilt, unless "distaste about the conduct of the prosecutor" is a synonym for "questions about guilt."

Posted by: federalist | Jan 25, 2017 4:47:15 PM

Prof. Berman does not seem to understand, and actually disagrees with WO Holmes on the felony murder rule. The fact of who pulled the trigger makes absolutely no difference in culpability. For a 1000 years, this rule has been settled, and proven to be effective, over and over. The burden is on Prof. Berman to explain the lesser culpability of any bank robbery crew member. The robber should be executed if he accidentally tripped someone into the street, and the victim was hit by a unlawfully speeding car. Any lesser penalty lowers the legal risk of bank robberies, and encourages them, and their associated risk of killing innocent people.

Here is the felony murder law in Texas, at Texas Penal Code, Murder § 19.02(b)(3).

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Please, point where it says, factually shot the victim personally. Is a bank robbery not "clearly dangerous to human life?" Did the robbery not "cause the death of an individual?"

If you disagree with WO Holmes, please, lobby the Texas legislature to amend the current code.

Posted by: David Behar | Jan 25, 2017 8:23:58 PM

David and federalist: my reference to "guilt" was not intended as a reference to the formal legal elements at issue in Texas, but rather to the "factual theory of the case" which appears to have been the basis for the decision to pursue capital charges and seemingly also facilitated securing a capital conviction and a death sentence from the jury.

Perhaps we could and should simplify this distinction in terms of legal guilt (not in dispute) and full factual guilt (in dispute). But I did not feel using the term "questions about full factual guilt" was more clear that just "questions about guilt." That said, I acknowledge that there might be a better short-hand way to describe the nature of the defendant's factual claims here. Indeed, I will change my post title if/when you suggest a better short-hand description.

Posted by: Doug B. | Jan 25, 2017 10:37:56 PM

Prof. Berman. I am guessing the majority of modern lawyers oppose the felony murder rule. So if you declare yourself against it, you would be in the mainstream. You can also give me pause in my support with some extreme cases. A person lends his car while in a state of intoxication. The car is used in a crime in which he had no part or of which he had no knowledge. It resulted in a murder. He is charged with felony murder. That sounds unfair if he gets the death penalty.

If you repeal the felony murder rule, then culpability does depend on factual guilt of who pulled the trigger. With juror involvement in sentencing, they are in a position to violate the felony murder rule to be fair. Until that happens the defendant is death eligible.

The egregious prosecutor misconduct should result in sanctions against the prosecutor, e.g. suspension of the of the law license. Unless the verdict is false, they should not be factors in any appeal.

I also oppose the Fruit of the Poisonous Tree Doctrine, since it punishes victims and the public. I do believe in accountability for police and prosecutor misconduct by punishing the malfeasors individually,, even with prison terms. Such misconduct is contempt of court. It is lying to government officials. Those are crimes already. Send the prosecutor to jail.

I have no suggestion on changing your title, unless you wish to declare your opposition to the Felony Murder Rule, still the law in Texas.

Posted by: David Behar | Jan 26, 2017 12:09:39 AM

Doug is right and wrong, here.

Facts matter. Whether he was the shooter or not is not relevant under the law of parties, as legal theory.

But it is highly relevant if he wasn't the shooter but it was asserted to the jury that he was. Could that important distinction have affected one juror to vote a different way? Of course. If prosecutorial error found that he was the shooter, but he was not, and the decision to seek death was based upon him being the shooter, yeah facts matter.

Then Doug introduces a doozy - "I do not understand why issues surrounding this degree of guilt have not been sufficiently resolve a full 15 years after the crime."

Doug, really?

Last minute appeals are, very often, no such thing. They may have been established, oh, say 15 years ago, and saved for the last minute, with the hope of extending the appeals process and their client's life.

I doubt that you are unaware.

I observe this as a constant practice.

Posted by: Dudley Sharp | Jan 26, 2017 7:56:44 AM

Doug is sloppy here. Guilty guy may be executed on bad theory of the case is a far more accurate description of this case than "questions about guilt."

How about: "Accomplice or Principal: Guilt phase theory of case questioned in last-minute death penalty appeal."

Posted by: federalist | Jan 26, 2017 9:57:13 AM

Four states other than Texas have "law of parties" statutes. But Texas is the only state that applies it in capital cases, making it the only place in the country where people can face the death penalty even though they didn't actually kill the victim. That is fact Mr Dudley Sharp. You can't get more arbitrary and geographically disparate than that.

Posted by: peter | Jan 26, 2017 10:49:30 AM

yes, but peter, the problem is that he isn't innocent, and you raised that specter, surely you understand the difference between this guy and Kirk Bloodworth

Posted by: federalist | Jan 26, 2017 11:47:20 AM

Dudley. According to Texas law, misinformed the jury about his shooting the victims would make no difference in finding a verdict, nor in sentencing. At the policy level, this rule promotes public safety.

Posted by: David Behar | Jan 26, 2017 12:10:14 PM

Thanks for the language suggestion, federalist, which I have incorporated into a revision of the post title and its text. Much appreciated and very helpful.

And Dudley, my question about why this takes so long was largely rhetorical (and a complaint about the litigation problems that arise so often in capital cases).

Posted by: Doug B. | Jan 26, 2017 12:37:20 PM

Ty Doug. I think it's important to make sure that the innocence label is used only when appropriate. Putting aside all the food fighting, crying wolf can hurt the cause of the truly innocent, and I don't think anyone wants that.

It would be nice if anti-DP people figured that out.

Posted by: federalist | Jan 26, 2017 1:16:39 PM


My unchanging opinion is that correct facts matter and that prosecutors and juries should have the correct facts.



Posted by: Dudley Sharp | Jan 26, 2017 2:43:18 PM

I agree with your point, federalist, and I appreciate this respectful dialogue.

Posted by: Doug B. | Jan 26, 2017 5:52:52 PM

David Behar, you are spot on in your comments, perhaps I have misjudged you, pardon the pun.

Posted by: Liberals don't have a clue | Jan 28, 2017 1:56:12 PM

Dudley. You are 100% correct. The question in this case is whether a verdict and a sentence should be overturned if the facts presented have not been true or complete. The answer to that question, should not be the lawyer gotcha of the doctrine of the Fruit of the Poison Tree. The number of such potential errors in retrospect is endless. The real question is whether those facts would have changed the results. In this case, they are not likely to have changed the verdict, if the felony murder rule of Texas is applied. Nor should sentencing be changed if you support the felony murder rule. I do because OW Holmes has never been wrong, and because it does reduce crime in real life.

The prosecutor has many duties to the defendant in the Rules of Evidence, of Conduct, of Criminal Procedure, in the common law. A breach of such duties should result in a negligence per se tort claim. And the prosecutor should pay the defendant for any real and calculable damage. The Supreme Court has blocked such accountability, even in the face of intentional misconduct. That is an injustice that should be remedied by Congress, and by state legislatures. The latter are free to ignore the Supreme Court, since judicial review is prohibited Article I Section 1 of the constitution. Those who support judicial review by the federal appellate courts should enact an amendment to the constitution.

The mirror image of that injustice is that a finding of inadequacy of representation by the defense lawyer has yet to result in a per se lawyer malpractice case. If I can find a meritorious example, and one resulting in a false verdict, I may wish to promote and fund such a claim.

Posted by: David Behar | Jan 30, 2017 1:31:42 PM

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