Harmful Errors: Texas Approaches Its 500th ExecutionJune 26, 2013
On July 30, 1964, the state of Texas executed Joseph Johnson Jr. He was one of the 21 African-Americans put to death in the Lone Star State in the 1960s, out of 29 executions overall. But his was also to be the last execution in Texas for 18 years.
In the late 1960s, executions in the United States dwindled and in 1972 the U.S. Supreme Court overturned all U.S. death penalty laws. New death penalty laws were permitted in 1976 and executions resumed the next year. However, it was not until late 1982, more than 18 years after Johnson’s execution, that Texas would restart its machinery of death.
Since then, Texas has been responsible for, by far, more executions than any other state. On June 26, Texas is scheduled to put Kimberly McCarthy to death – in the process carrying out its 500th execution since reinstatement.
The continued high use of the death penalty in Texas (though at a lower rate than in the so-called “zero tolerance” (1990s), flies in the face of the overall U.S. trend, which has seen death sentences, executions, and public support for capital punishment dropping steadily. Texas itself is not immune from that trend, as death sentences in the Lone Star State are now at historic lows.
Are the people of Texas – at least when they sit in the jury box – having second thoughts about the death penalty? It wouldn’t be too surprising. As a sampling of the state’s grim history of executions makes clear, capital punishment in Texas has consistently been biased and error-prone.
The First Lethal Injection in America
Just after midnight, December 7, 1982, Texas executed Charlie Brooks with a lethal cocktail of three drugs. It was the first lethal injection execution in the United States and the first execution of any kind in Texas since 1964.
Brooks was the first African-American to be executed in the U.S. after the reinstatement of the death penalty in 1976. Brooks had been sentenced to death for murdering an auto mechanic named David Gregory, but it was unclear if he or his accomplice had pulled the trigger and the prosecutor had tried to stop the execution.
Amnesty International said the lethal injection was “especially repugnant” because “medical techniques and personnel are meant to sustain life, not take it.” There have been over 1,100 lethal injection executions in the U.S. since then (498 of them in Texas) and every executing state now uses lethal injection as its primary killing method. The participation of health care professionals and the role of pharmaceutical companies in executions continue to rouse controversy, but not yet enough to halt the practice of using people and products meant for healing to take life.
In the so-called “modern” era of capital punishment, since the death penalty was reinstated in 1976, the USA has almost certainly executed prisoners despite serious doubts about their guilt. One of them may have been Carlos DeLuna, who was put to death in Texas in 1989 for the killing of gas station attendant Wanda Lopez in Corpus Christi. A comprehensive report and website by James Liebman and a team of students in the Columbia University Human Rights Law Review makes a compelling case for DeLuna’s wrongful conviction.
This report, Los Tocayos Carlos, followed on the heels of an investigation by the Chicago Tribune, amplified by the film At the Death House Door, which already made it fairly clear that Texas authorities had the wrong Carlos.
Carlos Hernandez was the other Carlos – the man Carlos DeLuna said had stabbed Wanda Lopez. At the trial, prosecutors declared that Hernandez was a “phantom” made up by DeLuna. But in fact, he was well-known to Corpus Christi law enforcement as a man with a propensity for violence and a love of knives. A career criminal who was almost always out on parole, he continued to assault women after DeLuna was sent to prison.
Hernandez repeatedly told others that he killed Wanda Lopez and that a tocayo (namesake) was paying for the crime. A former detective admitted that tipsters had told him Carlos Hernandez was the real killer of Wanda Lopez, but that information was apparently never pursued.
The failure to investigate Carlos Hernandez for the killing of Wanda Lopez suggests a disturbingly callous indifference. As the authors of the report put it:
“Wanda Lopez’s worthy and unimpeachable life was dishonored not only by the inattention to her plight on the night of February 4, 1983, by everyone in a position to help her, but also by the nonchalance with which everyone in a position to find her killer carried out that responsibility.”
Four years after Carlos DeLuna’s execution, another likely wrongfully convicted man, Ruben Cantu, was put to death for a murder that was committed when he was just 17 years old. In a Houston Chronicle investigation, the forewoman of Ruben Cantu’s jury hinted that a similar kind of nonchalance affected this case when she said:
“With a little extra work, a little extra effort, maybe we’d have gotten the right information. The bottom line is, an innocent person was put to death for it. We all have our finger in that.”
A decade later, Cameron Todd Willingham was executed in 2004 for killing his three children in a fire that Texas investigators determined, using deeply flawed forensic fire science, to be arson. In 2011, the Texas Forensic Science commission reopened the case and published in its final report that there was no scientific reason to believe that the fire was arson at all.
Texas Governor Rick Perry had information about the flawed arson investigation at the time of the execution and later tried to quash the reopened investigation. The Innocence Project now considers Willingham to have been wrongfully convicted and his supporters are seeking a posthumous pardon.
Karla Faye Tucker was put to death in Texas on February 3, 1998. She was undoubtedly and undeniably guilty (along with her boyfriend Danny Garrett) of murdering Jerry Dean and Deborah Thornton.
She experienced a religious awakening while in prison. Professing to be reformed and profoundly remorseful, her effort to stave off execution received the support of many who do not normally speak out against the death penalty, notably Newt Gingrich and Pat Robertson, who said:
“If there was ever a truly rehabilitated inmate, it was Karla Faye. And then the question becomes, is there no special dispensation we can give to the truly rehabilitated death row inmate?”
Former Governor George W. Bush had the option of offering Tucker clemency, which allows the executive branch of government to intervene in a case when the courts can’t, or won’t, based on factors outside the purview of the law – factors such as remorse, rehabilitation, and mercy. Instead Bush showed no mercy (he reportedly would later mock Tucker in an interview with Tucker Carlson in 2004) and Karla Faye Tucker was executed.
In fact, as we approach 500 executions, there have been only two grants of clemency in Texas. On top of the flawed legal process that allows for bias and wrongful convictions, the clemency process is more or less non-existent.
Karla Faye Tucker became the first woman put to death in Texas since 1863. Two more have been executed since then and the 500th execution (unless there is a stay) will be of a fourth woman, Kimberly McCarthy.
Inadequate Legal Counsel
In 2002, the Texas Defender Service released a study showing that:
“Death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.”
Leonard Uresti Rojas (executed December 4, 2002) is one of many to be executed in Texas despite major questions about the competence of their lawyers. In his case, the appellate attorney appointed to Rojas was on probation with the state bar, had never handled a death penalty appeal, suffered from bipolar disorder and missed multiple deadlines to file appeals on Rojas’ behalf. The missed deadlines made it impossible for Rojas to challenge his death sentence in federal court.
In the case of Johnny Joe Martinez, his appellate lawyer had never handled any capital post-conviction proceedings at all. He never spoke with his client, did less than 50 hours work, and produced a meager five-page petition that raised four inappropriate claims. His performance was so bad that a federal judge complained:
“I don’t know what’s holding up the State of Texas giving competent counsel to persons who have been sentenced to die.”
But this all-too-common poor performance by a lawyer, noted by a federal judge, did not stop Texas from putting Johnny Joe Martinez to death on May 22, 2002.
Killing Teenage Offenders
Napoleon Beazley (executed May 28, 2002) was only 17 when he carjacked and killed John Luttig in 1994. He was one of 13 juvenile offenders executed in Texas before the Supreme Court outlawed such executions in 2005. 8 of those 13 were African-American, and 12 of the thirteen were sentenced for killing white victims.
Napoleon Beazley, who was black, was convicted by an all-white jury in 1995. The victim, John Luttig, was white. As Amnesty International reported, Beazley had no prior arrests, but the prosecution refused to consider a pre-trial plea arrangement in which Beazley would plead guilty in return for a life sentence of 40 years without parole. The same prosecutors accepted a similar plea bargain in the case of a white man who was sentenced to 45 years in prison, with parole eligibility after half that time, for the racially motivated killing of an African-American homeless man in 1996.
Though the execution of juvenile offenders has been barred, Texas continues executing those who committed crimes as teenagers. Bobby Hines was 19 at the time of his crime, but was executed by the state of Texas on October 24, 2012.
Executing the Mentally Ill
Kelsey Patterson (executed May 18, 2004), was assessed as mentally fit for execution by Dr. James Grigson, despite diagnoses that he was severely mentally ill. Grigson was nicknamed “Dr. Death” for his willingness to testify against capital murder defendants. Through a decades-long staple in Texas capital hearings, “Dr. Death” was later expelled from the American Psychiatric Association and Texas Society of Psychiatric Physicians because of his unethical, unscientific testimony in such cases.
Governor Rick Perry ignored a rare recommendation of clemency from the Texas Board of Pardons and Paroles and allowed Patterson’s execution to proceed.
A 2006 Amnesty International report on mental illness and the death penalty lists Patterson as one of 24 people executed in Texas between 1985 and 2005 despite severe mental illness. The list is illustrative, not exhaustive. According to the report, Patterson:
“Was first diagnosed as a paranoid schizophrenic in 1981 (more than a decade before the double murder that would lead to his execution) frequently complained about a remote control device implanted in his body, refused to cooperate with his lawyers and insisted until his death that he had received a permanent stay of execution.”
In 2007, a study conducted by the National Alliance on Mental Illness (NAMI) revealed that Texas ranked 47th in the nation in per-capita spending on mental health services.
1 Bullet, 2 Executions
On October 13, 1980, Willie Williams and Joseph Nichols (executed January 31, 1995, and March 7, 2007, respectively) robbed a Houston deli and in the process, Claude Schaffer Jr., the store owner, was killed with a single bullet. Both men were convicted and executed for firing that one shot – Williams, under then Governor Bush and Nichols in 2007, under Governor Perry.
At Willie Williams’ trial in early 1981, the state asserted:
“Willie Williams is the individual who killed Claude Schaffer. That’s all there is to it. It is scientific. It is complete. It is final and it is evidence.”
After failing to get the death penalty for Nichols as an accomplice to Williams, the state argued in early 1982 that:
“Willie Ray Williams could not have shot [Shaffer]. And I submit to you from this evidence [Nichols] fired the fatal bullet that killed the man in cold blood and he should answer for that.”
Nichols, like Williams, got the death penalty for being the man who fired the one fatal shot. That the courts and Texas authorities were unable, or unwilling, to address this obvious contradiction tells you all you need to know about the Lone Star State’s zeal for executions.
Denying Foreigners Consular Rights
Humberto Leal Garcia (executed July 7, 2011) was never informed upon arrest that as a Mexican national he was entitled to legal help from the Mexican consulate. This was a violation of the Vienna Convention on Consular Relations, and may have been the difference between life and death. There have been 12 executions of foreign nationals in Texas. Garcia’s case was just the most recent.
The impact that consulate support can have for a foreign national facing the death penalty in Texas is illustrated by the case of Irineo Tristan Montoya. Without any assistance from his consulate, or an attorney of any kind present, Montoya was interrogated at length by police and then signed an English language document he thought was a deportation order. Instead, it was a confession to the capital crime for which he was eventually executed on June 18, 1997. According to the International Justice Project:
“The response in Mexico was spontaneous and dramatic: the border was closed for several hours by angry demonstrations and thousands of Mexican citizens lined the route of the funeral procession. American prisoners in Mexican prisons were placed in protective custody to save them from acts of violence against them.”
Mexico brought a case against the United States before International Court of Justice on the issue of nationals being denied their consular access rights. In 2004, the Court ruled in favor of Mexico, and then President George W. Bush tried to intervene to provide relief for foreign nationals on U.S. death rows. The state of Texas challenged President Bush, arguing that he did not have the authority to direct the judicial branch of government. In the Supreme Court case, Medellin v. Texas, the Lone Star State got its way and so far, the World Court judgment against the United States has had no effect.
Killing the Intellectually Disabled
Marvin Wilson (executed August 7, 2012), with an IQ of 61, well below the threshold of 70, should have been ruled “mentally retarded” and thus ineligible for execution. The U.S. Supreme Court, in Atkins v. Virginia, banned executions of the “mentally retarded” in 2002. But by unique and unscientific standards, based partially on the child-like character Lennie from John Steinbeck’s Of Mice and Men, Texas courts held that his execution was permissible.
On the day of Wilson’s execution, Thomas Steinbeck, son of the famous author, issued a scathing statement reading, in part:
“My father was a highly gifted writer who won the Nobel Prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous, and profoundly tragic. I am certain that if my father John Steinbeck were here, he would be deeply angry and ashamed to see his work used in this way.”
Prior to Atkins, Texas executed at least 9 prisoners known to have been intellectually disabled. In June 2001, Governor Rick Perry vetoed a bill that would have banned the state from putting intellectually disabled prisoners to death, claiming that “we do not execute mentally retarded murderers.”
The Persistent Role of Race
Race and the death penalty have been intertwined in the U.S. for centuries. As a legacy of slavery and its attendant punishments, and then of lynching, capital punishment has historically been infused with racial bias.
Duane Buck is not yet scheduled for execution, and he may yet get a new sentencing hearing. But the fact that he still faces the possibility of execution illustrates just how perniciously persistent race remains as a factor in the Texas death penalty. In 1997, Buck was sentenced to death by a Harris County jury who heard a psychologist, Dr. Walter Quijano, testify that African Americans were, as a race, more likely to be a “future danger”:
Prosecutor: “You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons. Is that correct?”
Dr. Quijano: “Yes.”
A recent study has confirmed that prosecutors in Harris County at that time (during the 1990s) were three times more likely to seek death against African American defendants than against white defendants. According to the NAACP Legal Defense Fund, roughly half of the African Americans on Texas death row were put there by Harris County.
Have things gotten better since the ‘90s? In one sense, yes. The good news is that use of the death penalty is waning in Texas; executions and death sentences have dropped considerably over the last ten years. But despite the racially charged testimony in his case, Duane Buck could still face execution. And racial disparities in Texas capital punishment seem not to have diminished at all.
Last year, 7 of the 9 people sentenced to death in Texas were African-American. This year, 6 of the 7 people executed so far in Texas have been African-American.
No sampling of Texas death penalty cases would be complete without mention of the tragic case of Cesar Fierro. He has not been executed, due at least in part to his deteriorating mental condition, but remains on death row (where he has been for 33 years), his life effectively destroyed.
When courts discuss “harmless error” they mean to acknowledge that mistakes were made, but that those errors would not have affected the outcome of the trial. In the case of Cesar Fierro, a Mexican national who was convicted and sentenced to die for the 1979 murder of a taxi driver in El Paso, the evidence against him consisted of the testimony of just one witness, and a confession.
The confession occurred when El Paso police, colluding with their counterparts across the border, told Fierro that Juarez police had:
“Raided his parents’ house, held them captive and threatened to torture his stepfather with electrical current from a generator attached to his genitals.”
The message and threat were clear and Cesar Fierro confessed.
Despite his attempts to retract it, Fierro’s confession was admitted into evidence and in 1980, he was sentenced to die. In 1996, the Texas Court of Criminal Appeals ruled that admitting this confession was indeed an “error,” but, stunningly, that it was “harmless” (because there was one witness).
At the federal level, after making a “preliminary determination” in 1997 that this Texas court ruling might be wrong, and the error might not be harmless, the 5th Circuit Court of Appeals in 2002 dismissed Fierro’s habeas corpus petition on procedural grounds (“barred by the one-year statute of limitations”).
Despite the efforts of Amnesty International and other human rights groups, the death sentence has remained in place for over three decades.
It is mind-boggling both that the state’s highest court would rule that a confession extracted under threat of torture could be considered “harmless.” And that ruling seems to have set the bar pretty high for trying to prove harmful error in a Texas court.
But in fact, capital punishment in Texas is full of errors, and none are harmless. From a sometimes nonchalant approach to investigating crimes, to the dismissive attitude towards the importance of a decent lawyer; from the routine rejection of clemency, to the routine rejection of international law; from the failure to respect the mitigating aspects of youth, or mental impairment, to the failure to address the ongoing effects of racial bias; the Texas death penalty is a colossal error-prone mess.
And this mistake-prone system is about to churn out its 500th execution.