Texas Death Penalty Cases of Interest
EL PASO, TEXAS - September 9, 2013 - This week, Rigoberto “Robert” Avila, who is scheduled to be executed on January 15, 2014, will ask the Texas Court of Criminal Appeals to order an evidentiary hearing under a groundbreaking new Texas law, Senate Bill 344, to consider newly available scientific evidence that suggests he is innocent. Mr. Avila’s case will be the first death penalty case in the state to be considered by the courts under this new legislation which allows access to the courts for defendants challenging their convictions based outdated forensic techniques.
Mr. Avila was convicted of causing the tragic death of a nineteen-month old child in his care in El Paso in 2001. He has consistently maintained his innocence over the past twelve years. Newly available scientific evidence has come to light that strongly points to Mr. Avila’s innocence.
Attorney for Mr. Avila, Cathryn Crawford of the Texas Defender Service (TDS), says the legislature and Gov. Perry passed SB 344 to create an avenue for defendants to challenge their convictions if they were gained through outdated forensic techniques.
“When passing the law, legislators specifically mentioned its application to infant death cases,” says Crawford. “My client, Mr. Avila, is a prime example for its existence.”
Texas Defender Service argues that before Texas proceeds with the execution of Avila, he should be granted the opportunity to present a biomechanical analysis of the cause of death and the testimony of a forensic pathologist. If the court orders an evidentiary hearing, it will become clear that today’s science shows that this case involves the tragic, accidental death of an infant.
Dr. Janice Ophoven, a pediatric forensic pathologist, agrees that Mr. Avila’s conviction should be re- examined in light of this newly available evidence, “The field of biomechanics is an essential framework that must considered by the court in Mr. Avila’s case.”
In addition to the newly available scientific evidence, which strongly points to Mr. Avila’s innocence, Crawford argues that the case also contains serious flaws that call into question the integrity of the conviction, namely Mr. Avila’s false confession and the questionable testimony of the 4-year old brother.
Professor Steven Drizin, Assistant Dean of the Bluhm Legal Clinic at Northwestern University School of Law and staff attorney at the Center on Wrongful Convictions, says that the signed confession in Mr. Avila’s case contains many of the hallmark problems he has seen in wrongful convictions in which the innocent person confesses to the crime.
“False confessions are a tragic but common phenomena and justice requires that we be critical of confessions when they are secured using improper techniques and, mostly importantly, when the case has scientific evidence that points to likely innocence,” says Drizin. “Both of these factors exist in Mr. Avila’s case, which greatly calls into the question the validity of his alleged confession.”
Additionally, Mr. Avila’s conviction rests partly on the testimony of the infant’s four-year-old brother. Dr. Maggie Bruck, child psychologist in the Division of Child and Adolescent Psychiatry at The Johns Hopkins Hospital comments that, “the child’s statements at trial are inconsistent, contradictory, and the result of highly pressurized interviewing techniques.” Crawford adds that, “child psychologists, and common sense, suggest that a death sentence cannot rest on statements made by a suggestible and grieving child.”
After the El Paso trial court certifies the petition this week, Texas Defender Service will deliver copies of an application for writ of habeas to the Texas Court of Criminal Appeals (CCA), asking that the CCA to allow Mr. Avila to present the evidence in an evidentiary hearing in the trial court.
“The State of Texas cannot proceed with an execution without considering legitimate and persuasive claims of innocence,” comments Crawford. “There is no room for uncertainty when it comes to the ultimate punishment.”
Texas Defender Service (TDS) is a non-profit organization established in 1995 by experienced death penalty attorneys. TDS aims to improve the quality of representation afforded to those facing a death sentence and to expose and eradicate the systemic flaws plaguing the Texas death penalty. For more information, visit: http://www.texasdefender.org/
Press Contact: Ana Zamora
Cell: (415) 971-2447
The sentencing occurred as part of a plea bargain and ends years of litigation concerning Mr. Briseno’s retardation and his right to a sentencing trial that allowed full consideration of mitigating evidence.
Mr. Briseno’s defense team includes: longtime appointed counsel Dick Burr, who won the stay that prevented Mr. Briseno from being executed; San Antonio attorney Mark Stevens; Texas Defender Service mitigation specialist and senior staff attorney Naomi Terr; TDS mitigation specialist Randi Wall-Chavez; mitigation specialist Nicole Van Toorn; fact investigator Jim McKay; and classification expert Frank AuBuchon. Also working tirelessly on the case have been: Elisabeth Semel and her students from the Berkeley Death Penalty Clinic; attorney Hilary Sheard; and Hugo Martinez and Guillermo Lara, both of the Laredo Public Defender’s Office.
Ever since Mr. Briseno’s execution was stayed in 2002, volunteer interns have provided invaluable assistance in investigating factual and legal topics. This group has included law students, social work students, undergraduates, British law interns, and students from the Cornell Death Penalty Clinic.
University of Texas Law Prof. Jordan Steiker and Robert Owen, now of Northwestern University School of Law, were on the CCA briefs that won the resentencing trial for Mr. Briseno. Many, many others worked on Mr. Briseno’s case before he was granted a retrial, including: attorney Mandy Welch; Alma Lagarda, a TDS staff attorney who worked on the case when she was an intern; and private investigator Richard Reyna.
On May 5, 1997, Duane Edward Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler while under the influence of drugs. A third person, Phyllis Taylor, was also shot, but survived. Ms. Taylor supports a commutation of Mr. Buck’s sentence. Mr. Buck is scheduled to be executed on September 15, 2011 even though the Office of the Attorney General identified Mr. Buck’s case as one containing constitutional error requiring he be resentenced.
During Mr. Buck’s trial, Dr. Walter Quijano was called by the defense and testified that he did not believe Mr. Buck would be a future danger based on several factors, primarily that Mr. Buck had no violent criminal record and did not display violent tendencies. On cross-examination, the government elicited testimony from Dr. Quijano that blacks are more likely to commit future acts of violence:
Q: 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?
The government urged the jury in its closing argument to rely on Dr. Quijano’s testimony. The jury found that Mr. Buck would be a future danger, and he was sentenced to death.
On appeal, the Texas Court of Criminal Appeals (CCA) upheld Mr. Buck’s death sentence. The reliance by the government on Mr. Buck’s race as a factor increasing his future dangerousness was not raised as a ground of error. Mr. Buck filed a state habeas application on March 15, 1997, alleging constitutional violations relating to the judge’s refusal to admit evidence regarding parole. The reliance by the government on Mr. Buck’s race as a factor increasing the likelihood of future danger was not raised as a claim for relief.
In 2002, after the Attorney General of Texas identified Mr. Buck’s case as one deserving of a new sentencing hearing due to the government’s reliance on race and therefore agreed to waive any procedural defects in the cases identified, Mr. Buck’s state habeas counsel filed a subsequent application for writ of habeas corpus in state court raising equal protection and due process claims related to the government’s use of race. On October 15, 2003, the Court of Criminal Appeals denied the initial application and refused, for procedural reasons, to consider the race-related claims. Mr. Buck’s federal habeas petition raising the same issues that were raised in state habeas proceedings was also denied.
On June 10, 2000, the Houston Chronicle’s front page carried an article entitled Death penalties of 6 in jeopardy: Attorney general gives result of probe into race testimony, declaring: “The death sentences for six convicted killers likely will be overturned because prosecutors used racially charged testimony from a clinical psychologist, the Texas attorney general said Friday.”
One day earlier, the chief legal officer for the State of Texas, Attorney General John Cornyn, issued a press release in which he identified Mr. Buck’s and five other cases then pending in post-conviction proceedings as cases in which the government had unconstitutionally relied on testimony of psychologist Walter Quijano, that a defendant’s race should be considered in determining future dangerousness and, at least in Mr. Buck’s case, that being black was a factor that increased the likelihood of future dangerousness. The press release looked at a total of eight cases in which Dr. Quijano had been involved, but concluded that two cases did not have circumstances rising to a constitutional violation. Through mistake or inadvertence, however, and despite the Attorney General’s admission of constitutional error in Mr. Buck’s case, he would be the only one of the six whose racially-tainted death sentence was left intact.
Statement of Elected Officials, Clergy, Civil Rights Leaders, and Legal Professionals in Support of a New, Fair Sentencing Hearing for Duane Buck
We – 102 elected officials, civil rights leaders, faith leaders, legal professionals, past ABA presidents, a former governor and concerned citizens dedicated to protecting the integrity of the criminal justice system – urge a new, fair sentencing hearing for Duane Buck free from racial bias…..READ MORE
Visit our Press Room for more information on the Duane Buck case, or view the following court documents:
Application for Writ of Habeas Corpus
Petition for Writ of Certiorari
Writ of Habeas Corpus Filed in U.S. Supreme Court
Motion for Stay of Execution in U.S. Supreme Court
U.S. Supreme Court Order Staying Execution
Media Coverage of U.S. Supreme Court Stay
More than 60 Civil Rights and Faith Leaders, Elected Officials, Former Prosecutors, and Past ABA Presidents Call On Harris County D.A. To Provide Remedy in Case of Duane Buck
Harris County Death Penalties Show Racial Pattern
U.S. Supreme Court Order Denying Petition for Writ of Certiorari
Petition for Rehearing Filed in U.S. Supreme Court
Order Denying Petition for Rehearing
Media Coverage of U.S. Supreme Court Denial of Certiorari Petition
The Washington Post — Supreme Court refuse to review role race played in Texas sentence
(THE ASSOCIATED PRESS – November 7, 2011) The Supreme Court has refused to hear an appeal from a Texas death row inmate who won a last-minute reprieve from the high court in September.
The justices on Monday turned away the appeal of Duane Buck, who wanted them to consider whether race played an improper role in his sentencing.
Buck, who is black, was sentenced to death for the fatal shootings of his ex-girlfriend and a man in her apartment in July 1995. His attorneys contend Buck deserves a new sentencing hearing because of a psychologist’s testimony that black people were more likely to commit violence…
ABC NEWS —Supreme Court Denies Appeal on Race Tainted Death Penalty Case
(By Ariane de Vogue – November 7, 2011) The U.S Supreme Court declined today to grant the appeal of a Texas death row inmate who claims race was improperly taken into consideration during the sentencing phase of his trial.
Duane Buck’s guilt for the death of his former girlfriend was never at issue, but Buck sought a new sentencing hearing because of testimony that contended that he posed a greater danger because he is black…READ MORE
Houston Chronicle — U.S. Supreme Court rejects killer’s appeal
(By Allen Turner – November 7, 2011)
The U.S. Supreme Court today rejected Houston killer Duane Buck’s request that it review his death sentence – a punishment handed down despite former Texas Attorney John Cornyn’s assessment that it might have been tainted by racial considerations.
The high court stopped Buck’s Sept. 15 execution in order to decide whether to take up the case. Buck, 48, was sentenced to die for the July 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck also shot his sister, Phyllis Taylor, in the chest at point-blank range, but she survived and later argued that the killer should be spared…READ MORE
“As I explained in a filing before the United Sates Supreme Court…it is inappropriate to allow race to be considered as a factor in our criminal justice system…[T]he United State Supreme Court agreed. The people of Texas want and deserve a system that affords the same fairness to everyone.”
—Texas Attorney General John Cornyn, June 2000
By Andrew Cohen
One prison doctor after another has diagnosed Marcus Druery as severely mentally ill. Does the Constitution permit the death penalty anyway?
Salon.com — Marcus Druery: Another Questionable Texas Execution
By Rania Khalek
Will Texas execute a man who thinks speakers broadcast his thoughts and Kim Kardashian was a witness to his crime?
Houston Chronicle — Appeals court halts execution over competency issue
By Cindy George
The Texas Court of Criminal Appeals has granted a stay to Marcus Druery, who had been scheduled to die Wednesday. The 32-year-old has been diagnosed as schizophrenic by prison and private doctors. On Tuesday, a Brazos County judge refused to order a psychiatric evaluation to determine whether the inmate can understand his legal situation.
Bryan Eagle — Appeals court delays Marcus Druery exceution
By Maggie Kiely
The Texas Court of Criminal Appeals Friday afternoon granted a stay of execution for Marcus Druery, a 32-year-old death row inmate from Bryan who was scheduled to receive a lethal injection Wednesday.
Texas Tribune — Marcus Druery denied competency hearing
By Maggie Kiely
With a week left until Druery is scheduled to receive lethal injection, his attorneys, Kate Black and Greg Wiercioch with the Texas Defender Service, said they’ll continue to fight for their client and planned to appeal Langley’s decision to the Texas Court of Criminal Appeals.
Texas Tribune — TDS Lawyers Argue Druery Incompetent for Aug. 1 Execution
By Brandi Grissom
Marcus Druery says that his cell on death row at Livingston’s Polunsky Unit is wired. The wires, he believes, carry voices into his cell and transport his thoughts to other people. Prison staff members, he claims, have contaminated his food with feces, urine and insects. Druery, 32, is scheduled to be executed Aug. 1. On Tuesday, his lawyers will ask a judge to appoint experts to examine the convicted murderer, who they argue is ineligible for execution because of his severe mental illness.
KBTX — Execution on the Line as Marcus Druery’s Case Goes Before Court
By Steve Fullhart
Attorneys from the Texas Defender Service representing Druery say their client suffers from schizophrenia and is incompetent to be put to death. Competency is required for execution by virtue of the Eighth Amendment to the U.S. Constitution.
Public News Service — Court Questions Constitutionality of Upcoming Texas Execution of Marcus Druery
By Peter Malof
While the state has acknowledged that Druery suffers from delusions, schizophrenia, “thought broadcasting” and auditory hallucinations, Department of Criminal Justice officials have yet to respond to the question of whether his medical condition meets the legal definition of insanity.
Bryan Eagle — Lawyers argue Druery unfit for execution
By Maggie Kiely
In the 36-page document TDS attorneys Kate Black and Greg Wiercioch submitted outlining why Druery is incompetent and therefore unfit for execution under federal law, the attorneys provided a timeline describing the deterioration of his mental health, which they argue started within a year of his arrival on Death Row at the Polunsky Unit in Livingston.
KBTX — Marcus Druery Execution Could Change Due to Competency Issues
By Steve Fullhart
The U.S. Supreme Court has ruled that an inmate must be aware of their punishment and why they are being executed, and Druery’s lawyers say their client doesn’t meet that standard. They are asking for a competency hearing, and for Druery’s execution date to be withdrawn. Judge J.D. Langley will examine the matter July 24 in court, eight days prior to the execution date.
Sent to death row in 1990, Mr. Hood was set for execution twice and, both times, TDS litigation caused proceedings to be stayed. The second time, litigation enabled TDS attorneys to confirm what had long been rumored: that the judge who presided over Mr. Hood’s trial had had a sexual affair with the elected District Attorney – and neither she nor the DA ever disclosed this fact to Mr. Hood’s trial counsel. Although the Texas Court of Criminal Appeals ultimately refused to grant Mr. Hood a new trial based on the affair, the Court later granted a punishment-only retrial because the jury instructions used at punishment in 1990 were later determined to be unconstitutional.
When Mr. Hood’s case was returned to Collin County in 2010 for the punishment-only retrial, defense lawyers Steve Miears, Keith Gore, Bill Peterson, mitigation specialist Cyndy Short and fact investigator Randi Ray took over the case. We continued to offer consulting and assistance to them – and did so, in fact, only hours before the plea occurred. We congratulate Charles and his trial team for successfully resolving his case.
Texas law at the time of Mr. McGowen’s original trial did not allow jurors to consider evidence of a defendant’s background and character in determining whether a life sentence was warranted. Thus, jurors had no way to vote for a life sentence as a result of evidence showing that, although Mr. McGowen had had a highly disadvantaged childhood, he later provided a home for and supported his 14-year-old sister, who was pregnant.
Paul’s work persuaded United States District Judge Melinda Harmon and, later, the United States Court of Appeals for the Fifth Circuit to order a new punishment trial for Mr. McGowen. Nonetheless, the State sought to appeal to the United States Supreme Court, which denied certiorari in late 2012.
This is the second case in recent years in which Paul has won punishment-phase relief for a death row prisoner. Anthony Pierce, who originally was sentenced to death in 1978, also received a resentencing trial thanks to Paul. In August 2012, a capital defense team led by Bob Loper and Gerald Bourque convinced the prosecution to finally waive the death penalty. As a result, Mr. Pierce’s death sentence was converted to life imprisonment.
Today, leaders from the American conservative movement, including legal experts, former conservative policymakers, and thought leaders from across the United States, filed an amicus brief in support of Scott Panetti, a death row prisoner who has suffered from schizophrenia for three decades and whose case is pending before the Fifth Circuit Court of Appeals.
The amici, some who support the death penalty and others who do not, “are united […] in their belief that the execution of Scott Panetti would serve no penological purpose and would in no way promote public safety. Rather than serving as a proportionate response to murder, the execution of Panetti would only undermine the public’s faith in a fair and moral justice system. And it would be a glaring and unwelcome example of excessive governmental power” (Amicus brief, p. 2).
The amici national conservative movement leaders are: Mark L. Earley, Sr., Former Attorney General of Virginia and Former President and CEO of Prison Fellowship USA; David A. Keene, Opinion Editor, The Washington Times; James C. Miller III, Director of the Office of Management and Budget under President Ronald Reagan; C. Preston Noell III, President, Tradition, Family, Property, Inc.; Patrick J. Nolan, Director, Center for Criminal Justice Reform, American Conservative Union Foundation; Harold D. Stratton, Jr., Former Attorney General of New Mexico; Patrick A. Trueman, Attorney at Law; and Richard A. Viguerie, Chairman, ConservativeHQ.com.
On December 3, 2014, the Fifth Circuit Court of Appeals stayed the execution of Mr. Panetti for a careful review of the issues surrounding his competency. Mr. Panetti’s illness, schizophrenia, was present for years prior to the crime, profoundly affected his trial, and appears to have worsened in recent years. Mr. Panetti has not had a competency evaluation in seven years.
On January 28, 2015, Mr. Panetti’s attorneys, Greg Wiercioch of University of Wisconsin Law School and Kathryn Kase of Texas Defender Service, filed their Supplemental Brief with the Fifth Circuit. The brief addresses a number of questions that the Fifth Circuit posed to the parties after it granted the stay of execution, including whether the federal district court erred in refusing to appoint counsel and approve funding for a mental health expert and an investigator. Counsel for Mr. Panetti have argued in the Supplemental Brief that the Fifth Circuit should order the district court to appoint counsel and provide resources so that counsel can present new evidence that Mr. Panetti is currently incompetent to be executed.
The Amicus Brief from National Conservative Leaders, filed today, can be accessed here: http://bit.ly/1zBfmMO
Mr. Panetti’s Supplemental Brief at the Fifth Circuit, filed January 28, 2015, can be accessed here: http://bit.ly/1DgPXbM
Mr. Panetti’s Opening Brief at the Fifth Circuit, filed November 30, 2014, can be accessed here: http://bit.ly/1yLnj2S
January 29, 2015 – News Coverage of Scott Panetti’s Filing
Houston Chronicle – Lawyers seek investigator, mental health expert to help prove killer client is insane by Allan Turner.
Lawyers for Scott Panetti Wednesday asked the 5th U.S. Circuit Court of Appeals to take steps ensuring that the convicted double-killer be provided legal counsel, an investigator and mental health expert to help establish that he is insane and, therefore, exempt from execution. Read more
San Antonio Current – Schizophrenic Death Row Inmate Asks Court for Funds to Prove Mental Illness by Mark Reagan.
Lawyers for a schizophrenic death row inmate are asking a federal appeals court to approve funding for defense attorneys and mental health experts so the man can make a claim that he is insane and should not be executed. Read more
January 28, 2015 – Supplemental Filing in Scott Panetti’s Case
On December 3, 2014, the Fifth Circuit Court of Appeals stayed the execution of Scott Panetti, a man who has suffered from schizophrenia for three decades, for a careful review of the issues surrounding his competency. Mr. Panetti’s illness, schizophrenia, was present for years prior to the crime, profoundly affected his trial, and appears to have worsened in recent years. Mr. Panetti has not had a competency evaluation in seven years.
Today, Mr. Panetti’s attorneys, Greg Wiercioch of University of Wisconsin Law School and Kathryn Kase of Texas Defender Service, filed their Supplemental Brief with the Fifth Circuit. The brief addresses a number of questions that the Fifth Circuit posed to the parties after it granted the stay of execution, including whether the federal district court erred in refusing to appoint counsel and approve funding for a mental health expert and an investigator. Counsel for Mr. Panetti have argued in the Supplemental Brief that the Fifth Circuit should order the district court to appoint counsel and provide resources so that counsel can present new evidence that Mr. Panetti is currently incompetent to be executed.
Mr. Panetti’s Supplemental Brief at the Fifth Circuit, filed today, can be accessed here: http://bit.ly/1DgPXbM
Mr. Panetti’s Opening Brief at the Fifth Circuit, filed November 30, 2014, can be accessed here: http://bit.ly/1yLnj2S
Statement of Scott Panetti’s Attorney re: Fifth Circuit’s Decision to Uphold District Court’s Ruling that Mr. Panetti is Competent to be Executed
“Scott Panetti believes that Texas plans to execute him to prevent him from preaching the gospel and saving souls on death row. He is a severely mentally ill man who was hospitalized over a dozen times in the decade preceding the offense. At his trial, Mr. Panetti represented himself wearing a cowboy suit and attempted to subpoena Jesus and John Kennedy. Mr. Panetti is insane. Executing him would violate the Eighth Amendment’s prohibition on cruel and unusual punishments……READ MORE