UPDATE: 10-29-10 INNOCENT MAN FREED FROM DEATH ROW

Texas Monthly is reporting ...

"For eighteen years Anthony Graves insisted that he had nothing to do with the gruesome murder of a family in Somerville. That’s exactly how long it took for justice to finally be served."

 "At the recommendation of the Burleson County district attorney’s office, state district judge Reva Towslee-Corbett signed a motion that stated, simply, 'We have found no credible evidence which inculpates this defendant.' In other words, all capital murder charges were dropped."

"Former Harris County assistant district attorney Kelly Siegler, who has sent nineteen men to death row in her career, went even further in her statements. Siegler laid the blame for Graves’s wrongful conviction squarely at the feet of former Burleson County D.A. Charles Sebesta. 'Charles Sebesta handled this case in a way that would best be described as a criminal justice system’s nightmare,' Siegler said. Over the past month, she explained, she and her investigator, retired Texas Ranger Otto Hanak, reviewed what had happened at Graves’s trial. After talking to witnesses and studying documents, they were appalled by what they found. 'It’s a prosecutor’s responsibility to never fabricate evidence or manipulate witnesses or take advantage of victims,' she said. 'And unfortunately, what happened in this case is all of these things.' Graves’s trial, she said, was 'a travesty.'”

Original Blog Entry ...

It is the height of hubris to think that I may be wiser than the nine sitting justices of the United States Supreme Court, but it must be true.

As a proponent of the death penalty for egregious acts, I also believe that “we the people” must satisfy ourselves that a man is guilty of the crime for which he has been sentenced to death. And that, at the very least, we should allow modern technology to provide exculpatory evidence – even in the light of existing precedents and well-established legal procedures. Humanity demands no less.

So I am greatly disturbed when I find the Los Angeles Times reporting …

“The Supreme Court struggled Wednesday with a life-or-death question for Hank Skinner, a Texas death row inmate: Whether a defendant convicted long ago has a right to new DNA testing of old evidence.”

If there is a possibility that modern DNA testing can help free a convicted man – as has been done in a number of cases – then there is absolutely no doubt in my mind that the nine Justices of the Supreme Court must provide this opportunity or resign from the Court.

“Skinner, who was an hour away from execution in March when the high court intervened in his case, was convicted of a bloody triple murder that took place New Year's Eve 1993. Long after his conviction, he asked to have DNA tests on much of the crime scene evidence, including two bloody knives, a towel and the swabs and hair samples taken from murder victim Twila Busby.”

We have seen enough cases of investigational incompetence or prosecutorial misconduct to allow for the possibility that any and all exculpatory evidence may not have been presented at trial or could not be adequately tested using the technological tools of the time.

“Dist. Atty. Lynn Switzer refused to allow the testing, saying the request came too late. Skinner's defense lawyer did not ask for the DNA testing at the time of his trial, once it had been shown that his client was covered with the blood of two of the victims when he was arrested.”

Perhaps the people should throw their District Attorney out of office on the basis of not representing the best interests of the people. People who demand justice, not merely running up conviction statistics for the next election. In my book, there is no “too late.”

“Skinner appealed in state and federal courts, but he could not win a ruling ordering the further testing. Texas, like other states, adopted a law in the last decade that permits some DNA testing, but a judge ruled that Skinner did not qualify because his trial lawyer had opted against the extra testing.”

Even if the defense did not request the extra testing, it would be a matter of common decency and humanity to perform the extra tests before executing a death penalty.

“"We are seeking access to evidence that has never been tested," said Robert Owen, a Texas law professor representing Skinner.
Students from Northwestern University's Medill School of Journalism investigated Skinner's case and found evidence that pointed to Busby's uncle as the possible killer. She had left the New Year's Eve party after he had made ‘crude sexual advances’ to her. Skinner was seen dead drunk on a couch next to where she was killed.”

Why would anyone refuse a last minute test that could provide exculpatory evidence is beyond me? And, if the test did provide evidence that indicated that the convict did perpetrate the crime, the death penalty could be carried out with additional assurances that a right and just verdict was reached.

“Last year, Skinner sued in a last minute bid to have the DNA tested, but he lost in the lower courts.”

“During Wednesday's arguments, the justices sounded split and uncertain how to proceed.”

Uncertain? The path to justice is clear and never more evident than in a death penalty case. If these justices have any hesitation in confirming the guilt or discovering the innocence of a man that will be executed, they should resign from office.

“Several of them noted that the high court has frowned upon opening the door to whole new appeals at the end of a long case.”

The road may have been long and littered with speed bumps, but it should be recognized that the potential for a greater injustice is more probable than not if such testing were denied, especially if untested samples made.

I hesitate to propose an almost unpalatable alternative, that of commutation to a life in prison without the possibility of parole where doubt still exists. As the Justice’s are wont to say in legal arguments, you can’t un-ring the bell.

"How do you get around Osborne?" asked Justice Sonia Sotomayor. Just last year, the court in a 5-4 decision ruled against William Osborne, an Alaska rapist who unsuccessfully sought DNA evidence to rebut his conviction.
Owen argued that the Texas DNA law was particularly unfair because it offered hope of DNA testing but denied it to Skinner.”

Ah, the wise Latina speaks … asking a stupid question. Existing law may very well be irrelevant to the testing issue when a man’s life is at stake. Soliciting advice or questioning “workarounds” to skirt the law make me wonder if some of the members of the Supreme Court are qualified to hold office.

“Meanwhile, the lawyer defending the district attorney was hard pressed to explain why the extra testing should be denied. ‘This is an attack on the criminal proceeding,’ said Gregory Coleman, a lawyer from Austin.”

Is the great State of Texas so without compassion as to deny a man a chance to prove himself innocent? Was it worth the costs of pursuing the matter to the Supreme Court which certainly costs more than the tests involved? After all, how many inmates are facing execution?

Bottom line …

As a conservative, I have a great deal of respect for the law. However, I have a much greater respect for human life and want to be as certain as possible before the state takes a life in my name. Considering recent revelations of police corruption and incompetence and instances of prosecutorial misconduct – some for purely political reasons – does the situation not demand that the tests be performed?

If you conclude that the answer is No, perhaps you should re-examine your own moral compass and ethical judgement. It is justice that we seek, not retribution nor conviction statistics.

On the other hand, if the tests prove, beyond a reasonable doubt, that the person is guilty, I am not opposed to the death penalty.

And I have no position on whether the results should result in a retrial, commutation of the death sentence to life without parole or a hearing before a trial judge. All I know is that every person should be given an opportunity to prove their innocence at any stage prior to the execution of sentence.

-- steve

Reference Links …

Supreme Court DNA testing: High court struggles with death row inmate's DNA request - latimes.com 

Reprimand Tossed for 'We Close at 5' Texas Judge

"A special court of review on Monday dismissed a public reprimand of Texas' top criminal courts judge, who closed her court at 5 p.m., preventing attorneys from filing a last-minute appeal hours before their client was executed. The disciplinary case against Court of Criminal Appeals Presiding Judge Sharon Keller came after she closed the court on Sept. 25, 2007, as attorneys for twice-convicted killer Michael Wayne Richard tried to submit their appeal."

Imagine what would have happened if this man was put to death ...

"In 1997, David Housler was convicted of the murders of four employees in the notorious 'Taco Bell' murders in Clarksville, Tenn., and was sentenced to four consecutive life sentences. But on Oct. 4, after spending nearly 14 years in prison, Housler walked out of prison a free man thanks to four years of pro bono work by a team of Sidley Austin lawyers who were able to show that the government had convicted an innocent man."

Prosecutorial Misconduct Is Rarely Punished, Says New Study

"Only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period, according to a report released Monday.
The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases."