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Statement of Greg Wiercioch, Attorney for Scott Panetti, a TX Death Row Prisoner with Severe Mental Illness, on the Setting of an Execution Date

“Scott Panetti is not competent for execution and therefore his execution would serve no retributive purpose. It is unfortunate that an execution date has been set.

“For more than three decades, Mr. Panetti has suffered from severe mental illness. He was allowed to represent himself at his capital trial, wearing a make-believe cowboy outfit and attempting to subpoena Jesus Christ and John F. Kennedy. He has a fixed delusion that Satan, working through the State of Texas, is seeking to execute him for preaching the Gospel. His execution would be a miserable spectacle.”

– Greg Wiercioch, Attorney for Scott Panetti
— October 30, 2014

CASE BACKGROUND:

Scott Panetti has suffered from severe mental illness for over 30 years. It first manifested itself at least a decade before the crime for which he was convicted and sentenced to death in Texas. Mr. Panetti’s severe mental illness has infected every stage of his capital case.

This is the enduring image of Mr. Panetti’s case: a paranoid schizophrenic wearing a TV-Western cowboy costume; on trial for his life; insisting on defending himself without counsel; attempting to subpoena the Pope, John F. Kennedy, and Jesus Christ; and raising an insanity defense. Mr. Panetti’s pro se performance was an abomination and his trial was a mockery of the criminal justice system.

Six years after the U.S. Supreme Court rejected the Fifth Circuit’s unconstitutional standard for assessing competency for execution in Panetti v. Quarterman (2007), the Fifth Circuit once again held that Mr. Panetti is competent to be executed – despite the District Court’s findings that he has a severe mental illness and suffers from paranoid delusions.

It is undisputed that Mr. Panetti suffers from severe mental illness that pre-dates the crime and it is uncontested that Mr. Panetti’s delusions center on his belief that his execution is being orchestrated by Satan, working through the State of Texas, to put an end to his preaching the Gospel of Jesus Christ to the condemned.

The Fifth Circuit’s standard trivializes severe mental illness and deems delusions irrelevant by disregarding their iron-grip persistence. Mr. Panetti’s delusional belief system is like a warped lens that distorts everything that passes through it.

By treating delusional beliefs as irrelevant if a court can identify any part of a prisoner’s beliefs about his execution as “rational,” the Fifth Circuit’s standard ignores the diagnostic features and clinical realities of psychotic disorders and fails to protect the truly insane from execution.

The Fifth Circuit’s standard fails to identify the individuals whom the U.S. Supreme Court in Ford v. Wainwright (1986) and Panetti v. Quarterman (2007) intended to protect: prisoners who may possess some cognitive understanding of the reasons for their execution, but who also exhibit delusional thinking that irredeemably distorts the link between their wrongdoing and the punishment they are about to suffer.

Neither the District Court nor the Fifth Circuit considered the abundant evidence that Mr. Panetti’s seemingly “rational” belief was inextricably intertwined with his delusional belief system. The lower courts’ attempt to isolate a strand of Mr. Panetti’s thinking is contrary to clinicians’ understanding of the nature of delusions.

The lower courts myopically focused on a fragment of Mr. Panetti’s beliefs that appears tethered to reality and concluded that it unequivocally established his rational understanding of the reason for his execution. His statement, however logical and cognitively aware it might initially seem in a vacuum, cannot dislodge his entrenched delusional belief system.

For Immediate Release July 7, 2014

Please Contact: Kathryn M. Kase, (713) 222-7788 office; (713) 444-2044 cell; KMKase@texasdefender.org

State Bar Has Found Just Cause to Pursue Disciplinary Action Against Prosecutor
Who Wrongfully Convicted Anthony Graves

The Chief Disciplinary Counsel of the State Bar of Texas has made a “just cause” determination with respect to allegations of prosecutorial misconduct against former Burleson County District Attorney Charles J. Sebesta, Jr. in his prosecution of Anthony Graves in 1994. As a result of Sebesta’s misconduct, Graves spent 18½ years of his life in prison, more than 12½ years of that on death row, for a crime he did not commit and of which he was later completely exonerated by honest prosecutors.

Mr. Sebesta has elected to have his case heard by an administrative judge. That means the State Bar grievance proceeding will stay confidential until a final determination is made and any sanction is imposed. If Mr. Sebesta had elected to have the case heard by a state district court, the case would have become public when the Office of Disciplinary Counsel filed its complaint against Mr. Sebesta.

Anthony Graves twice faced execution dates during his incarceration. He filed his grievance against Mr. Sebesta on January 20, 2014. During the State Bar’s initial investigation, Mr. Graves also submitted an affidavit detailing how Sebesta’s unethical prosecutorial misconduct forever changed Graves’s life and the lives of those around him. A copy of that affidavit is provided with this announcement.

The State Bar of Texas has power to sanction Charles Sebesta for his unethical conduct, up to and including disbarment and loss of his license to practice law in Texas.

Statement by Anthony Graves: “Twenty years of being victimized by Charles Sebesta is enough. I never should have been on death row, much less for 12½ years of my life. The courts and the State of Texas finally agreed, and acknowledged that I am completely innocent. Mr. Sebesta thinks he can just ignore all that and keep claiming that I am a murderer. He continues to assassinate my character, forcing me to explain myself and to defend myself. That is not right—an honest prosecutor admitted that I am completely innocent, and the State of Texas agreed. I am not a lawyer, but I believe that any lawyer who doesn’t believe in the presumption of innocence—much less an absolute and incontestable finding of innocence as happened in my case—doesn’t deserve to be a lawyer in our great State.

“I sought justice for a long time while imprisoned, having to trust the court system and the legal profession to care about justice, and to do the right thing. I am glad to see the State Bar of Texas now act favorably on my grievance at this stage. I am confident that the Bar will discipline Mr. Sebesta for his misconduct and do whatever it can to stop him from continuing to persecute me, a completely innocent man.”

Statement by Kathryn Kase, Executive Director, Texas Defender Service, and Counsel to Anthony Graves: “We are pleased that the State Bar of Texas has determined that there is just cause to proceed against Charles Sebesta with regard to his conduct in the prosecution of Anthony Graves. Eight years ago, a federal appeals court determined that Anthony Graves was convicted in an unfair trial because Sebesta did not inform Mr. Graves’s counsel that the State’s main witness took full responsibility for the murder, and because Sebesta knowingly presented false and misleading testimony and information during Mr. Graves’s death penalty trial. Rather than try Mr. Graves again, honest prosecutors determined he was actually innocent of the crime and asked the State to release him. Not only did the State declare him completely innocent, it paid him some compensation for the wrongful conviction and imprisonment. By that point, Anthony Graves had spent 18½ years behind bars, 12½ of them on death row.

“As yet unresolved is whether this rogue prosecutor will be held accountable for his violations of law, ethical misconduct, and breaches of the public trust. Texas citizens deserve to be represented by zealous prosecutors, but only those who follow the rule of law, and who respect the presumption of innocence. A prosecutor’s duty is not simply to secure convictions, but to see that justice is done. Conviction of an innocent man like Mr. Graves through prosecutorial misconduct is abhorrent and undermines public trust and confidence in the Texas justice system. The way to restore that trust and confidence is to hold prosecutors like Charles Sebesta accountable when they violate their legal and ethical obligations.

“We are disappointed that Mr. Sebesta chose to have the Bar’s action against him proceed before an administrative judge, rather than before a court of public record. His conduct against Anthony Graves was in a public proceeding, and he continues to make public attacks on Mr. Graves. He should have defended his conduct in a public proceeding, for all to see. Regardless, Texas Defender Service will continue to assist both Anthony Graves and the Bar as Mr. Graves seeks this last measure of justice.”
* * * * *
Mr. Graves also is represented by Rebecca Bernhardt, Policy Director of Texas Defender Service, and by Neal S. Manne and Charles R. Eskridge III, both of whom are partners at Susman Godfrey L.L.P.

About Texas Defender Service: Texas Defender Service is a non-profit legal services organization established in 1995 whose mission is to establish a fair and just criminal justice system in Texas. TDS seeks to reach those goals by improving the quality of representation afforded to those facing a death sentence and by exposing and eradicating the systemic flaws that plague the Texas death penalty.

About Susman Godfrey LLP: For more than 30 years, Susman Godfrey has focused its nationally recognized practice on high-stakes commercial litigation. It is one of the nation’s leading law firms, with offices in Houston, Dallas, Seattle, Los Angeles and New York. The firm’s lawyers often represent clients on a pro bono basis (free of charge), as Manne and Eskridge are doing here for Mr. Graves.

For more information please contact: Kathryn M. Kase, Texas Defender Service, attorney for Anthony Graves, 713-222-7788

Fewer executions but Texas still the death penalty leader
By Jordan Steiker | For the Express-News
June 20, 2014 | San Antonio Express-News OpEd

SAN ANTONIO — Across America, the death penalty seems in retreat. Death sentences have declined. Executions have declined. Six states have abandoned this punishment. Polls show modern-day lows in popular support.

Yet in Texas we hear only of executions — a seemingly endless stream. Are we really two different nations (yes, Texas was its own country once) with different capital destinies? Or are the rest of the states the canaries, and Texas the miner, as oxygen is sucked out of the American death penalty cave?

Texas, too, is less frequently imposing and carrying out the death penalty. In 1999, Texas juries returned an astounding 48 death sentences. Since 2008, however, Texas has annually sent fewer than 10 defendants to death row.

Executions in Texas have declined as well, from a high of 40 in 2000 to fewer than 20 since 2010. But Texas rightly has become the symbol of the modern American death penalty because of its extraordinary number of executions — accounting for more than 500 of the nation’s 1,379 executions since 1977.

Indeed, Texas has executed at least four times more people than any other state, and more than all of the other death penalty states combined, excluding Oklahoma, Virginia, Florida and Missouri.

How did Texas become the leader of American executions?

Executions require something of a perfect storm. Prosecutors must seek death; defense lawyers must fail in their quest for a plea or a life sentence at trial; appellate judges must find the underlying trial to have been fundamentally fair; statewide prosecutors must defend the resulting death verdicts; post-conviction courts must sign off on the adequacy of representation and the conduct of prosecutors at trial; and executive officials must stand aside and permit the execution to go forward. While it rarely rains in Texas, this sort of perfect storm has become the norm rather than the exception.

To perform more than 500 executions, a state needs a lot of death sentences, and Texas was very successful in this regard for nearly a quarter-century, never falling below 20 a year from 1980 to 2004.

The death sentences were concentrated in a few places, particularly Houston (Harris County), whose district attorney, Johnny Holmes, unapologetically left to jurors the question whether death was the “proper” punishment in any legally eligible case.

Defense representation at trial was also notoriously poor, as Texas relied exclusively on court-appointed lawyers, many of them ill-equipped, poorly trained and unmotivated.

Many Texas prosecutors aggressively excluded minority citizens from serving on capital juries, and a host of other problems in the system, including bad forensic science, prosecutorial withholding of exculpatory evidence and an inadequate sentencing statute, contributed to a pileup of inmates on Texas’s death row.

But Texas has earned its reputation as an outlier by translating these sentences into executions. Until the mid-1990s, trial judges in Texas set execution dates before appeals were exhausted, rushing cases toward execution without adequate process.

The two courts most responsible for keeping the system fair — the Texas Court of Criminal Appeals and the federal 5th Circuit Court of Appeals — rarely found faults in need of correction. Sleeping lawyers, drunken lawyers and a trial judge who slept with the prosecutor were all tolerated. The two courts upheld dozens of death sentences in which jurors were improperly instructed about their right to spare the defendant’s life.

More recently, the Texas court worked to undermine the U.S. Supreme Court’s prohibition on executing intellectually disabled persons, limiting its reach to defendants as profoundly impaired as Lennie from John Steinbeck’s novel “Of Mice and Men.”

The failure to enforce widely accepted constitutional norms was not simply a product of judges personally disposed to uphold death verdicts. Rather, the Texas judicial system is institutionally problematic.

Only Texas and Oklahoma assign constitutional enforcement to a special criminal court. In Texas, the judges for this court are selected in statewide partisan elections. Electing criminal judges naturally leaves the Constitution short-changed, as no would-be judge runs on a platform of scrupulous enforcement of constitutional rights.

In addition, lawyers in Texas death penalty appeals, like their counterparts at trial, were often underfunded and unqualified to fulfill the arduous responsibilities of post-conviction representation. Post-conviction defense lawyers missed mandatory filing deadlines and failed to investigate claims. Despite these blunders, many of the worst were repeatedly assigned to additional cases

The lethal combination of undiscerning prosecutors, poor defense lawyering and “accommodating” judges pushed Texas to the forefront of executions. In addition, other institutional actors in Texas exercised little discretion to prevent unjust or unwarranted executions.

Lawyers in the attorney general’s office have defended sentences almost without exception, viewing themselves as representing death verdicts rather than advancing any broader commitment to “justice.”

The Texas Board of Pardons and Paroles has virtually never recommended clemency — despite ample opportunity to spare juvenile offenders, offenders with intellectual disabilities, inmates with colorable claims of actual innocence, and so forth.

As with the Texas Court of Criminal Appeals, the board’s failure to provide meaningful oversight has been institutionally driven — with the board affording little process as it decides whether an execution should proceed. In many other states, executive officials treat reviewing clemency petitions by death-sentenced inmates as a solemn duty, and provide correspondingly high levels of scrutiny, including live hearings with adversarial presentation.

In Texas, clemency petitions are reviewed behind closed doors; board members cast votes in isolation, without the benefit of live testimony or cross-examination.

Texas governors have also abdicated their clemency role. Between 1923 and 1972, clemency was a routine part of the Texas death penalty system, with executive commutations sparing roughly 30 percent of the condemned. In the modern era, Govs. Ann Richards, George W. Bush and Rick Perry collectively granted clemency on only two occasions, while presiding over almost 500 executions.

Some aspects of Texas’ perfect storm have been reformed in recent years. The Legislature has created a statewide defender’s office to represent death-sentenced inmates in state post conviction. Some counties now rely on public defenders, rather than local lawyers appointed in a hit-or-miss way, to represent people facing the death penalty.

In response to the highly publicized wrongful conviction of Michael Morton, the Legislature has mandated broader disclosure of state evidence to the accused. And prosecutors have increasingly (and wisely) exercised their discretion to plead many capital cases to life imprisonment without possibility of parole, sparing taxpayer dollars and reserving the ultimate punishment for the truly worst offenders.

But these changes are unlikely to cure the Texas death penalty.

Race discrimination still infects the capital process, and safeguards against wrongful death sentences and executions remain inadequate.

Geographical arbitrariness is the norm, as fewer than half of Texas’ 254 counties have sent offenders to death row. Just as Europeans speak inaccurately of “the American death penalty,” it is a misnomer to talk of a monolithic “Texas death penalty” given that most Texas towns are subsidizing the death penalty appetites of a few active counties.

Moreover, despite the remarkable drop in new death sentences in Texas — just 51 over the past six years (Florida had 94 during the same period) — the ugly perception of Texas as the nation’s executioner will endure a while longer.

Executions are a lagging indicator, and with almost 300 people still on death row, Texas will need another decade or two to reap the harvest it planted more than a decade ago.

As the death penalty grasps for breath across the country, and even as Texas prosecutors and juries withhold capital sentences, Texas will remain the symbol of this dying practice.
– – – – -
Jordan Steiker is the Judge Robert M. Parker endowed chair in law and director of the Capital Punishment Center, University of Texas School of Law.
 

JORDAN STEIKER SPECIAL TO THE AMERICAN-STATESMAN

Mentally disabled inmates still routinely put to death in Texas

“We do not execute mentally retarded murderers today.”

Gov. Rick Perry made this Orwellian declaration in 2001 as he vetoed, rather than signed, a Texas bill that would have protected intellectually disabled offenders from the death penalty. Now, more than a decade later, Perry’s declaration is no more true than it was back then: Texas continues to execute offenders with intellectual disabilities. In fact, without a last-minute intervention, Texas will execute just such an offender in a matter of weeks.

The crucial difference? The U.S. Supreme Court ruled in 2002 that our Constitution prohibits executing people with intellectual disabilities.

How has Texas managed to continue a practice that our Constitution condemns? In the absence of a statute, the Texas Court of Criminal Appeals — the highest criminal court in Texas — has used its authority to undermine the constitutional rule. In its landmark precedent, the appeals court expressed doubts about whether the Supreme Court intended to protect all offenders who meet the professional criteria for intellectual disabilities. Instead, the Court of Criminal Appeals has improvised its own approach to deciding which offenders with intellectual disabilities should be spared execution.

In the case of Ramiro Hernandez, scheduled to die April 9, the defense offered compelling evidence of his intellectual disabilities. Hernandez, a Mexican national, had numerous IQ scores below 70, including a 62 on his only full-scale test. Witnesses testified to Hernandez’s extreme deficits in functioning, including his inability to bathe himself, run simple errands, prepare food safely or make change.

Hernandez’s poor academic performance and inability to learn led to his expulsion from school after the third grade. Nonetheless, his claim of intellectual disabilities was rejected by the Texas courts and the 5th Circuit on dubious grounds. The Court of Criminal Appeals relied on the testimony of an “expert” who did not speak Spanish, did not meet Hernandez (or anyone who knew him), and could not state the definition of intellectual disabilities.

Despite Hernandez’s obvious deficits, the expert claimed his behavior was appropriate for his “cultural group.” The 5th Circuit likewise insisted that Hernandez should be judged not by American standards and asserted that the 62 IQ score was in reality a 70 when scaled to Mexican norms.

In other words, Hernandez’s low performance was squarely in the range of intellectual disabilities but not low enough for a Mexican to merit constitutional protection.

Hernandez’s case follows numerous other shady denials of intellectual disabilities claims. Elroy Chester presented uncontested evidence of his low IQ and numerous deficits, as well as evidence of his placement in the prison’s “Mentally Retarded Offenders Program.” Nonetheless, his claim was rejected using the appeals court’s invented criteria, and Chester was subsequently executed.

Juan Lizcano had IQ scores ranging from 48 to 62 and had been removed from school at age 15 because he had not advanced past the sixth grade. He could not read a clock, dress himself appropriately or perform simple jobs. The state relied on the testimony of Lizcano’s ex-girlfriend and a used-car salesman who had sold Lizcano a car, both of whom stated that Lizcano did not seem that impaired to them. Lizcano remains on death row.

The Supreme Court now has the opportunity to address Texas’ marked departure from professional norms in administering the intellectual disabilities exception to the death penalty. Unless it does so, many Americans will wrongly believe Perry’s glib pronouncement that “mentally retarded murderers” are in fact exempt from the death penalty. In Texas, we still kill them.

STEIKER IS THE JUDGE ROBERT M. PARKER CHAIR IN LAW AND DIRECTOR OF THE CAPITAL PUNISHMENT CENTER AT THE UNIVERSITY OF TEXAS SCHOOL OF LAW.

 

Texas Death Penalty Facts

death sentences
In 1999, there were 48 new death sentences in Texas. In 2011, there have only been 8 new death sentences in Texas. (Source: Texas Death Penalty Developments in 2010, The Year in Review, Texas Coalition to Abolish the Death Penalty, December 2010 and Texas Department of Criminal Justice.)2d
texas executions

  • In 2011, Texas executed 13 people. (Source: Texas Department of Criminal Justice)
  • In 2010, Texas executed 17 people accounting for over a third of all executions nationwide. (Source: Death Penalty Information Center & Texas Department of Criminal Justice)
  • In 2009, Texas executed 24 people accounting for almost half of all executions nationwide. (Source: Death Penalty Information Center & Texas Department of Criminal Justice)
  • Texas has accounted for more than1/3 of all modern executions (1976 to the present) in the U.S. with 475 executions as of September 21, 2011. (Source: Death Penalty Information Center)
  • Death Penalty Information Center’s 2011 End of the Year Report
Wrongful Conviction Facts
  • All three branches of Texas government have created entities to review issues in the criminal justice system based on the risk of error, but virtually nothing has been done to reduce the most prevalent causes of wrongful convictions.
  • In 2005, the Texas legislature created and Governor Rick Perry signed legislation creating the Texas Forensic Science Commission.
  • By executive order, Governor Rick Perry created the Criminal Justice Advisory Council.
  • In 2008, the highest criminal court in Texas, the Texas Court of Criminal Appeals, created a Criminal Justice Integrity Unit.
  • In 2009, the legislature created and the governor approved the Timothy Cole Advisory Panel on Wrongful Convictions.
  • These four entities all aimed to improve the quality of evidence introduced in criminal cases in Texas and therefore reduce the instances and risk of wrongful convictions. However, despite the stated intentions of these entities, they have not yet resulted in the passage reform measures that effectively address the well known causes of wrongful convictions.
Exoneration Facts
  • Innocent people can and do get sentenced to death in Texas and across the country
  • Since 1976, 138 people have been exonerated from death row nationwide. Twelve of them were in Texas. (Source: Death Penalty Information Center, p. 6)
  • When innocent people are exonerated, it is often a matter of dumb luck. For example, the real killer confesses or pro bono law firms take an interest in the case. It is rarely because the system catches errors and corrects itself.
  • Both Ernest Ray Willis and Cameron Todd Willingham were convicted of murder by arson and sentenced to death on the basis of junk fire science. Mr. Willingham is dead and Mr. Willis is alive — and free — because a pro bono law firm took Mr. Willis’ case.
  • The fact that some mistakes were discovered in time and innocent people were exonerated strongly suggests that there have been other occasions when mistakes were not discovered in time and innocent people were executed.
  • As former U.S. Supreme Court Justice Sandra Day O’Connor observed, while noting 90 exonerations from death row in 2001, “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.”

Links

Includes the weekly published opinions and handdown list of the Texas Court of Criminal Appeals, a library of prior opinions, the list of 11.071 “approved attorneys”, and the Guidelines and Rules for Attorney’s Fees and Expenses pursuant to art. 11.071.

Case information, docket sheets, Local Rules for the Fifth Circuit, etc. Does not require separate service to access information.

  • The following websites feature case information, docket sheets, local rules, etc. Access to the docket sheets generally requires that you have signed up with the Pacer Services. Instructions for doing so, addresses, etc., are contained within each website.

The District Court for the Northern District of Texas
The District Court for the Southern District of Texas
The District Court for the Eastern District of Texas
The District Court for the Western District of Texas

Offers an array of resources for attorneys representing death row prisoners in their habeas appeals, with separate resource libraries for individual states – including Texas – with sample pleadings, training materials, etc.

Extensive website with numerous materials and resources relevant to habeas litigation of capital cases (the website is split between resources for the defense of state prosecutions (Habeas Assistance & Training, or “HAT”) and the defense of federal prosecutions (Federal Death Penalty Resource Council, or “FDPRC”.) The HAT materials include the following:

  • Calendar of Upcoming Events
  • Current Developments and Recent Cases (including Supreme Court briefs in pending cases of particular importance)
  • Introduction to the Eighth Amendment
  • Recent Filings and Actions in the U.S. Supreme Court
  • Federal Habeas Corpus Update (Habeas corpus decisions listed by topic)
  • Constitutional Issues – Cases on point (summaries of successful cases under the seminal Supreme Court cases pertaining to capital litigation, e.g. Ake v. Oklahoma, Brady v. Maryland, Strickland v. Washington, etc.)
  • Presentations from Past Seminars
  • Cites to Sites (includes sites set forth herein)

General information about federal habeas corpus review and capital punishment, a synopsis of recent federal court decisions on habeas corpus and capital punishment, and links to other pertinent sites.

Links to other sites containing valuable information on all aspects of criminal law and procedure.

General information about race and the death penalty, the work of the SCHR, and current developments in the administration of the death penalty in the U.S.

A commercial website which offers an array of (free) legal resources and tools.