evaluating fairness and accuracy in state death penalty systems

517 Pages·2013·7.2 MB·English

EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:

The Texas Capital Punishment Assessment Report

An Analysis of Texas’s Death Penalty Laws, Procedures, and Practices
“A system that takes life must first give justice.”
John J. Curtin, Jr., Former ABA President
September 2013

AMERICAN BAR ASSOCIATION

Defending Liberty
Pursuing Justice

EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Texas Capital Punishment Assessment Report

An Analysis of Texas’s Death Penalty Laws, Procedures, and Practices

“A system that takes life must first give justice.”
John J. Curtin, Jr., Former ABA President

September 2013

AMERICAN BAR ASSOCIATION
The materials contained herein represent the assessment solely of the ABA Death Penalty
Due Process Project and the Texas Capital Punishment Assessment Team and have not
been approved by the House of Delegates or the Board of Governors of the American Bar
Association and, accordingly, should not be construed as representing the policy of the
American Bar Association.

These materials and any forms or agreements herein are intended for educational and
informational purposes only.

This document has been produced with the financial assistance of the European Union.
The contents of this report are the sole responsibility of the American Bar Association
and can under no circumstances be regarded as reflecting the position of the European
Union.

Significant portions of the research were performed on Westlaw courtesy of West Group.

Copyright 2013, American Bar Association
ACKNOWLEDGEMENTS

The American Bar Association Death Penalty Due Process Review Project (the Project)
is pleased to present this publication, Evaluating Fairness and Accuracy in State Death
Penalty Systems: The Texas Capital Punishment Assessment Report.

The Project expresses its great appreciation to all those who helped to develop, draft, and
produce the Texas Assessment Report. The efforts of the Project and the Texas Capital
Punishment Assessment Team were aided by many lawyers, academics, judges, and
others who presented ideas, shared information, and assisted in the examination of
Texas’s capital punishment system.

Particular thanks must be given to the Project’s attorneys—Ryan Kent, Mark Pickett, and
Sarah Turberville—who spent countless hours researching, writing, editing, and
compiling this Report. A special thanks to Paula Shapiro, as well, for her assistance with
the final publication of this Report. In addition, we would like to thank the American Bar
Association Section of Individual Rights and Responsibilities for their contributions,
including Section Director Tanya Terrell, Troy Burbank, Jaime Campbell, Patrice Payne,
Ginna Anderson, Brittany Benowitz, Christopher “Kip” Hale, Monika Mehta, Tina Alai,
Michael Pates, and Melina Montellanos. We also would like to recognize the research
contributions made by the Project’s law clerks, Laurel Roberson, John “Mike” Allen,
Molly Hofsommer, Cate Schur, Kimberly Cissel, and Virginia Williamson.

Other interns and volunteers also made this Report possible, including Katrina Goodjoint,
Terence McCarrick, Supriya Prasad, Benjamin Schiffelbein, Jessica Trieu, Joseph
Vukovich, John Thorpe, Kaitlyn Golden, Sarah Jurick, Scott Petiya, Susan McNulty,
Michelle Zavislan, Brandon Hunter, Ariel Bachar, Carmen Daugherty, and Claire
Turberville. The Project is also appreciative of the contributions made by Selina O’Neil,
Ty Andrews, and Beth Lebow.

Lastly, in this publication, the Project and the Assessment Team have attempted to note
as accurately as possible information relevant to the Texas death penalty. The Project
would appreciate notification of any errors or omissions in this Report so that they may
be corrected in any future reprints.

MEMBERS OF THE TEXAS CAPITAL PUNISHMENT ASSESSMENT TEAM

Professor Jennifer Laurin, Chair, joined the faculty of the University of Texas School
of Law in 2009. Professor Laurin received her undergraduate degree in Politics from
Earlham College. In 2003, she earned her J.D. from Columbia Law School, where she
was Executive Articles Editor of the Columbia Law Review. She served as a law clerk to
Judge Thomas Griesa of the Southern District of New York and Judge Guido Calabresi of
the United States Court of Appeals for the Second Circuit, and spent several years as a
litigation associate with the New York City civil rights firm of Neufeld Scheck &
Brustin, LLP (formerly Cochran Neufeld & Scheck, LLP). Professor Laurin's principal
research interests lie in the intersections of criminal and constitutional litigation, and
regulation of criminal justice institutions.

Ron Breaux is a partner at Haynes and Boone, LLP where he co-chairs Haynes and
Boone’s Litigation Department. He received a B.S. degree from Louisiana State
University and a J.D. degree from Southern Methodist University. For more than 20
years, Mr. Breaux has focused his practice on complex commercial litigation, the defense
of corporations and executives in federal investigations and trials, antitrust, securities
enforcement, internal corporate investigations and government investigations. He is an
active member of the ABA Litigation Section and the Dallas Bar Association.

Paul Coggins is a partner at Locke Lord, LLP. His education includes a B.A. in Political
Science from Yale University, a Diploma in Law from Oxford University, and a J.D.
from Harvard Law School. He is the head of Locke Lord’s national White Collar
Criminal Defense and Internal Investigations practice. Mr. Coggins was the United
States Attorney for the Northern District of Texas from 1993 to 2001. He focuses his
practice on white collar criminal defense, and has represented numerous Fortune 500
clients in high stakes litigation before federal courts and the SEC. Mr. Coggins also has
conducted internal investigations involving alleged tax, fraud and securities violations.
In addition, he develops compliance and ethics programs for corporations and other
business entities. While with the U.S. Attorney’s Office, Mr. Coggins twice served on
the U.S. Attorney General’s Advisory Council and, in 1998, became its Vice Chair.

Royal Furgeson is the founding Dean of the UNT Dallas College of Law, which is
located in downtown Dallas and which will open its doors to its first class in August
2014. He began his deanship in June 2013. From 1994 to 2013, he served as a U.S.
District Judge both in the Western District and Northern District of Texas. A native of
Lubbock, Judge Furgeson graduated from Texas Tech University in 1964 and from the
University of Texas School of Law in 1967. After law school, he served in the U.S.
Army for two years, attaining the rank of Captain. After a tour in Vietnam, he clerked for
U.S. District Judge Halbert O. Woodward in Lubbock for one year and then joined the El
Paso law firm of Kemp Smith in 1970, where he practiced law for 24 years until he began
his tenure as a federal judge. He is a member of the American Law Institute, the
American College of Trial Lawyers and the American Board of Trial Advocates. While
in El Paso, he was President of the El Paso Bar Association and the El Paso United Way.
While in the federal judiciary, he was Chair of the Judicial Resources Committee of the
Judicial Conference of the United States and President of the Federal Judges Association.

The Honorable Deborah Hankinson is founder of Hankinson LLP. She graduated with
a B.A. from Purdue University, a M.S. from the University of Texas at Dallas, and a J.D.
from Southern Methodist University’s Dedman School of Law. In 1995, she was
appointed, and later elected, to serve as a Justice on the Fifth District Court of Appeals in
Dallas. From 1995 to 2002, she served as a Justice on the Supreme Court of Texas. In
recognition of her many accomplishments on the bench, the Texas Chapter of the
American Board of Trial Advocates honored Ms. Hankinson as the Texas Judge of the
Year in 1999. She returned to private practice in 2003. She is nationally recognized for
her deep commitment to the issue of equal access to justice. While on the Supreme Court
of Texas, she was a driving force behind the creation of the Texas Access to Justice
Commission, which works to ensure that low-income Texans have access to justice in
civil legal matters. She is Board-Certified in Civil Appellate Law by the Texas Board of
Legal Specialization, a Fellow of the American Academy of Appellate Lawyers, a
member of the American Law Institute, and serves on the Board of Directors of the
American Arbitration Association (AAA). Justice Hankinson is also a former chair of the
ABA Standing Committee on Legal Aid and Indigent Defendants.

Professor Ana M. Otero is an Associate Professor of Law at Thurgood Marshall School
of Law, where she teaches civil procedure, evidence, Texas practice, and a death penalty
seminar. Hired as a Visiting Professor in 1998, she was promoted to Associate Professor
in 2002. She served as Director of the Judicial Externship Program from 2001 to 2004.
She serves on the board of the Earl Carl Institute for Legal and Social Policy, as member
of the Center for Legal Pedagogy, and as Faculty Advisor for the Hispanic Law Students
Association. Her scholarship focuses on the death penalty. Upon graduation from law
school, she practiced law in the Florida law firm of Blackwell & Walker, where she
became Senior Attorney in the Commercial Litigation Division. In 1991, she moved to
Houston and began working as a Staff Attorney in the Judicial Division of the Municipal
Courts. In 1997, she was appointed Associate Municipal Court Judge, and served in that
capacity through September 2006. For the past ten years, Professor Otero has worked
extensively with the Council on Legal Education Opportunity (CLEO) as a lecturer and
Director of two of its programs. In 2003, she was appointed to the ABA Standing
Committee for Lawyer Referral Service and Information for a term of three years. She
has served as board member and Vice President of the Houston Lawyer Referral Service,
and on the boards of the Hispanic Bar Association and ABA Legal Opportunity
Scholarship. Professor Otero earned her J.D. from Rutgers University, an M.B.A. from
Fairleigh Dickinson University, and an MIA from the School of International and Public
Affairs at Columbia University. She obtained her B.A. from Columbia University where
she graduated Phi Beta Kappa and cum laude. Professor Otero is a member of the Texas
bar and an inactive member of the Florida bar.

Charles T. Terrell has been in the insurance business for 54 years. He was chairman of
the Unimark Insurance Agency for 46 years before it was sold in 2012. Terrell’s passion
in life has been the fight against crime. In doing so, he has chaired the Texas Department
of Corrections (the last Chairman), the Texas Department of Criminal Justice (the first
Chairman), and the Texas Criminal Justice Task Force (anti-crime lobby) for Governor
Bill Clements. He has headed anti-crime efforts for two governors and three Dallas
mayors. Mr. Terrell has twice chaired the Dallas Crime Commission. He is also a co-
founder of SaferDallas, which raises money for crime-fighting efforts in Dallas. The
Death Row prison unit was named after him, but he had his name removed from it and
moved to another unit. He has also served on the San Angelo City Council when he was
26 and the Dallas City Council when he was 35. Mr. Terrell has been married to his
wife, Beverly, for 54 years. They have two children, six grandchildren, and one great
grandson. He is a graduate of SMU and was a guard and linebacker on the football team
during the Don Meredith era.

Governor Mark White was born in Henderson, Texas. His career in public service
began in 1966 as an assistant Attorney General. In 1973, he was appointed Secretary of
State. In 1979, he became Attorney General of Texas. He served as co-chair of the
Federal-State Law Enforcement Coordinating Committee and was a member of the
Governor’s Organized Crime Prevention Council. He was then elected Governor of
Texas in 1982. Governor White is now President of GeoVox Security, Inc. He is
married to Linda Gale Thompson and they have two sons and a daughter.
TABLE OF CONTENTS

EXECUTIVE SUMMARY ........................................................................................................................... i
I. INTRODUCTION: GENESIS OF THE ABA’S DEATH PENALTY ASSESSMENTS PROJECT .................... i
II. HIGHLIGHTS OF THE REPORT ....................................................................................................... iii
III. SUMMARY OF THE REPORT ........................................................................................................ xxi
CHAPTER ONE: AN OVERVIEW OF TEXAS’S DEATH PENALTY SYSTEM ............................... 1
I. DEMOGRAPHICS OF TEXAS’S DEATH ROW ................................................................................... 1
II. THE STATUTORY EVOLUTION OF TEXAS’S DEATH PENALTY SCHEME ......................................... 4
III. THE PROGRESSION OF A TEXAS DEATH PENALTY CASE FROM ARREST TO EXECUTION ............ 10
CHAPTER TWO: LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS ....... 27
INTRODUCTION TO THE ISSUE ................................................................................................................... 27
I. FACTUAL DISCUSSION ................................................................................................................ 29
II. ANALYSIS ................................................................................................................................... 35
CHAPTER THREE: COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER
TYPES OF EVIDENCE ............................................................................................................................. 55
INTRODUCTION TO THE ISSUE ................................................................................................................... 55
I. FACTUAL DISCUSSION ................................................................................................................ 57
II. ANALYSIS ................................................................................................................................... 59
CHAPTER FOUR: CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES .............. 69
INTRODUCTION TO THE ISSUE ................................................................................................................... 69
I. FACTUAL DISCUSSION ................................................................................................................ 71
II. ANALYSIS ................................................................................................................................... 81
CHAPTER FIVE: PROSECUTION ......................................................................................................... 97
INTRODUCTION TO THE ISSUE ................................................................................................................... 97
I. FACTUAL DISCUSSION ................................................................................................................ 99
II. ANALYSIS ................................................................................................................................. 102
CHAPTER SIX: DEFENSE SERVICES ............................................................................................... 135
INTRODUCTION TO THE ISSUE ................................................................................................................. 135
I. FACTUAL DISCUSSION .............................................................................................................. 136
II. ANALYSIS ................................................................................................................................. 147
CHAPTER SEVEN: THE DIRECT APPEAL PROCESS AND PROPORTIONALITY REVIEW 197
INTRODUCTION ....................................................................................................................................... 197
I. FACTUAL DISCUSSION .............................................................................................................. 199
II. ANALYSIS ................................................................................................................................. 203
CHAPTER EIGHT: STATE HABEAS CORPUS PROCEEDINGS................................................... 209
INTRODUCTION TO THE ISSUE ................................................................................................................. 209
I. FACTUAL DISCUSSION .............................................................................................................. 211
II. ANALYSIS ................................................................................................................................. 214
CHAPTER NINE: CLEMENCY ............................................................................................................ 253
INTRODUCTION TO THE ISSUE ................................................................................................................. 253
I. FACTUAL DISCUSSION .............................................................................................................. 255
II. ANALYSIS ................................................................................................................................. 261