Texas science panel adopts arson recommendations

Todd Willingham
and daughter

A state panel on Friday recommended more education and training for fire investigators following its review of a case involving a Texas inmate executed after a fire labeled arson killed his three daughters.

The Texas Forensic Science Commission also recommended establishing procedures for revisiting old cases.

Cameron Todd Willingham was executed in 2004. Prosecutors accused the 36-year-old unemployed mechanic of setting the fire at his home in Corsicana, about 60 miles south of Dallas. A jury convicted him of capital murder and sent him to death row. His conviction was upheld nine times on appeal.

Willingham didn't testify at his trial but always insisted _ even in an obscenity-filled tirade the moment before his death _ that he was innocent. He suggested the fire could have been started accidentally by his 2-year-old daughter, Amber, who died along with her 1-year-old twin sisters, Karmon and Kameron.

Death penalty opponents have questioned arson investigators' testimony that led to Willingham's conviction and suggest he may be the first person wrongly executed in the U.S. since capital punishment resumed more than three decades ago. Several experts have since concluded the fire at his home was of undetermined cause or accidental but not arson, as two fire marshals at the scene ruled in 1991.

The commission on Friday completed an often tedious review of its nearly 50-page draft report based on Willingham's case and settled on the 16 recommendations for fire investigators, prosecutors and defense attorneys and lawmakers.

"We're suggesting somebody else is going to have to carry these things out," said Commission Chairman John Bradley.

The panel said Thursday that it wouldn't decide whether arson investigators were negligent or guilty of professional misconduct in Willingham's case until the Texas attorney general's office decides whether the panel has that authority.

The state commission can't exonerate Willingham or reopen his case but determines whether forensic science in such cases was sound. The eight-member panel won't make a ruling on negligence or professional misconduct by the fire's initial investigators until it gets word from the attorney general, a decision not likely until July. John Bradley, a suburban Austin district attorney and the commission chairman appointed by Gov. Rick Perry in 2009, had requested the legal opinion. After courts rejected appeals in Willingham's case, Perry refused to stop Willingham's execution.

"In general, I'm satisfied," said Stephen Saloom, policy director for the Innocence Project, which first raised questions about the case. "They were constrained by the AG's opinion and have had to overcome the chairman's relentless efforts to keep a lot of issues down. In the areas they're permitted to address, they've made some significant progress and deserve credit for that."

He called it a great improvement over the draft report released Thursday.

"They've gotten much more specific," he said. "It responds to the allegations as much as possible. This gives a chance for all those past cases."

The panel's recommendations also include establishing a code of ethics for investigators and making procedure for involving the state fire marshal's office in fatal home fires. The commission acknowledged the Texas Legislature controls the money needed to implement a number of its recommendations.

Another wants the fire marshal's office to adhere to standards established by the National Fire Protection Association and become a model for local fire investigators in Texas. They also urged investigators to keep original files of their cases and forward copies of documentation to other interested parties like prosecutors and defense attorneys. In Willingham's case, the Forensic Science Commission can't see arson investigators' files because they've been lost.

The commission spent lengthy time Friday debating a review procedure they said fire investigators should establish for resolved cases, a re-examination process common in medical settings.

Commissioner Sarah Kerrigan called it central to the overall report, saying results and interpretations like Willingham's from 1991 may not be valid years later. They needed to be looked at and "stakeholders" impacted by any new interpretations be informed, she said.

"If the answer is 'no,' then we're really in trouble," she said.

"Conceptually, I don't disagree," Bradley said. "But in practice if we say something about this we have to be very careful. You've got adversaries in these cases and adversaries make wildly different claims that are decided by a jury."

After prolonged wrangling but in a direct reference to the Willingham case, they agreed to a recommendation that urges the state fire marshal's office develop standards similar to accredited disciplines of forensic science that "promote the re-examination of cases when science has evolved to create a material difference in the original analysis or result." Under its recommendation, the state fire marshal's office had a "duty to correct, duty to inform, duty to be transparent" and implement corrective actions.

The panel noted the evolution of fire standards never was disclosed by the fire marshal's office or Corsicana Fire Department as Willingham's case moved through the legal system.

Bradley came to the panel days before it was to hear from Craig Beyler, a Baltimore, Md., fire expert critical of the original investigation. Beyler's appearance was stalled until early this year. Bradley has denied allegations of bias and has labeled criticism directed toward him as "politics and circus sideshow." At the same time, his confirmation as board chairman is stalled before the Texas Senate and likely doomed after a contentious appearance before a senate committee. He can remain on the board through the end of the legislative session next month.

In its report, the commission determined investigators at the scene reasonably concluded Willingham's theory about his oldest daughter setting the fire was only a remote possibility because the children were so young and because no lighters were found near their bodies. The report also pointed out no uniform standard of practice existed for state or local fire investigators in the early 1990s.

Source: AP, April 22, 2011

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Forensic panel urges new look at old arson cases

Willingham's house
after the blaze

Adopting a stronger call to action Friday, a state agency concluded its review of the Cameron Todd Willingham case by urging Texas fire officials to re-examine investigations that may have relied on arson evidence now known to be unreliable.

The Texas Forensic Science Commission also added language to its final report clarifying the role that now-discredited "arson indicators" played in Willingham's conviction on murder charges.

The commission's inquiry, focused on the arson science behind the Willingham case, was never intended to weigh the guilt or innocence of the man Texas executed in 2004.

But the report adopted Friday marked the first time a state agency has acknowledged that unreliable evidence played a role in Willingham being convicted of setting fire to his Corsicana home in 1991 and killing his three young children.

"It's a good report," said Stephen Saloom, policy director of the Innocence Project, a New York legal advocacy center that filed the Willingham complaint with the commission in 2008.

"It makes clear that the old forms of arson evidence are not reliable and need to be banished from fire investigation practices in Texas," Saloom said. "And this gives a chance for justice for all those past cases where people may have been wrongfully convicted of arson."

The report, adopted 8-0 with one member absent, will be posted on the commission's website Monday.

The final version urged the Legislature and cities to set aside enough money to ensure that fire investigators are fully trained in the ever-evolving scientific understanding of fire behavior.

The panel offered 15 other recommendations for improving fire investigations, including formal adoption of investigative standards outlined in a National Fire Protection Association document, NFPA 921: Guide for Fire and Explosion Investigation, and establishing peer review panels to examine pending arson cases.

But much of Friday's efforts were focused on whether the state fire marshal's office — whose investigator was the prosecution's star witness against Willingham — has a duty to re-examine other past investigations that may have been influenced by now-discredited investigative techniques.

"If the science changes, if the interpretation of the case changes over time, is there an obligation to inform the stakeholders and the criminal justice system? If the answer is no, then we're really in trouble," said commissioner Sarah Kerrigan, a forensic toxicologist and associate professor at Sam Houston State University.

Accredited forensic labs, when presented with evidence that a result was invalid or mistaken, are required to correct the error, inform everybody involved and fix the underlying problem, added commissioner Nizam Peerwani, chief medical examiner of Tarrant County.

Agencies that engage in interpretive scientific analysis, including fire investigators, should follow a similar guideline, Peerwani said.

Commissioners agreed, adding language to the final report urging the state fire marshal's office to develop standards to review past cases and correct any errors discovered.

Commissioners also noted that neither the fire marshal nor the Corsicana Fire Department notified judges or prosecutors that standards of arson investigation had improved in the years between Willingham's 1991 conviction and his 2004 execution.

In a letter to the commission last year, State Fire Marshal Paul Maldonado insisted that his agency stood by its investigator's arson finding in the Willingham case. On Thursday, commissioners responded by calling that an "untenable position in light of advances in fire science."

Maldonado issued a statement Friday noting that he had not yet seen the final report but that "the State Fire Marshal's Office is always open to improving the quality of its fire investigations. We will look to the final report for guidance and direction in achieving that goal."

The commission's report included a sample list of post-fire conditions once thought to be arson indicators, or evidence that fires had been intentionally set using an accelerant or combustible liquid. Scientists, largely by setting test fires over the past two decades, have concluded that the same conditions are present in many natural and accidental fires.

Indicators singled out by the commission included:

• V patterns: Former Deputy Fire Marshal Manuel Vasquez testified that a V-pattern in Willingham's hallway indicated that he had started one of three fires there. "Scientists now know that the 'V-pattern' simply points to where something was burning at some stage of the fire, not necessarily the origin," the report says.

• Pour patterns: Vasquez testified that burn marks on the floor of Willingham's house could only have been caused by a poured liquid accelerant. But such patterns often have other causes, including synthetic carpeting, radiant heat, smoldering debris and flashover, the near-simultaneous ignition of every burnable item in a room.

• Spalling: Brown discoloration on Willingham's porch proved that a liquid accelerant had been squirted there, Vasquez testified. But the report said that "while spalling may be caused by burning accelerant, it is more often caused by sustained heat from other sources."

The commission may have another opportunity to revisit the Willingham case to examine whether investigators engaged in professional negligence in their investigation and testimony about the fatal fire. The attorney general's office has been asked to determine whether state law disallows such an inquiry. That opinion is due by July 30.

Source: statesman.com, April 15, 2011

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Texas commission’s report on Cameron Todd Willingham arson case avoids central questions

A state panel’s draft report on the 1991 arson investigation that led to Cameron Todd Willingham’s execution, released Thursday, avoids central questions raised by fire experts and advocates.

The Texas Forensic Science Commission began a 2-day meeting with discussion of the report, which was limited because of a pending request filed with the attorney general’s office that questions whether the commission has authority to investigate the case.

For now, the report addresses only standards of fire investigations based on expert testimony and documents collected over the last 2 years.

Opponents of the death penalty have touted the case of Willingham — executed in 2004 for the deaths of his three daughters in the fire — as a likely case in which an innocent person was executed because now-discredited science was used to declare the blaze to be arson. Others question that, saying Willingham’s guilt was proved by other factors.

The report could be the final, and inconclusive, chapter in the saga, if the attorney general agrees with the Corsicana Fire Department and the state fire marshal’s office that the commission does not have the power to determine negligence or misconduct in the case.

“If they fail to respond to the actual allegation filed, which this report does, then it will have failed to provide the public confidence in forensics that the Legislature intended,” said Steven Saloom of the New York-based Innocence Project, which filed the original complaint.

Some commission members said that parts of the report “dance around the issue” by not specifically tying fire investigation standards to the Willingham case.

“It looks at the history and progress of fire science,” said the commission’s general counsel Lynn Robitaille, who drafted the language of the report based on input from the nine commissioners.

It outlines recommendations for arson science, based on the review of the Willingham case.

“The commission has to be cautious not inferring or concluding negligence or misconduct until we have jurisdiction on this issue,” said Chairman John Bradley.

Commissioner Sarah Kerrigan questioned why members of the panel, none of whom are arson investigators, are making suggestions to the state fire marshal’s office about the standards of practice.

The hearing is likely to be the last led by Bradley, the Williamson County district attorney, because his nomination lacks sufficient support in the Senate.

Gov. Rick Perry shook up the commission in 2009, firing its chairman, just before it was to hear from a fire expert who criticized the fire science used to convict Willingham.

Source: Dallas Morning News, April 14, 2011

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Texas: Long-Awaited Testimony Rejects Arson Conclusion

Willingham's house
after the blaze

Fire science expert Craig Beyler told the state's Forensic Science Commission on Jan. 7 that, at best, the cause of the fatal fire in Cameron Todd Willingham's home nearly two decades ago is "undetermined." Furthermore, as time goes by and science improves, the case for the fire to be considered arson "gets less and less, not more and more," he said. The testimony came some 14 months after Beyler was initially scheduled to discuss the 1991 fire that claimed the lives of Wil­ling­ham's three young children – and resulted in his conviction and execution for arson.

Beyler's conclusions were echoed by John DeHaan, a 40-year fire scientist who has authored and co-authored several seminal fire science textbooks and who previously worked for the federal Bureau of Alcohol, Tobacco and Firearms. DeHaan, one of four witnesses asked to present before the commissioners last week, said that although there was not a "uniform standard of practice" for conducting fire investigations back in 1991, there are still elements of investigation that are universal – such as ruling out other accidental or natural causes for a fire before concluding that arson was to blame. That was not done by the Texas State Fire Marshal's Office, which handled the Willing­ham investigation. In fact, Beyler told the commission, which is made up predominately of scientists, it appears Deputy Fire Marshal Manuel Vasquez (who has since died) never even looked through the charred debris in the bedroom where the Willingham children died. Instead, that debris was simply "shoveled" out the bedroom window. How could Vasquez determine that arson caused the fire if he never even sifted through all the evidence?

According to Ed Salazar, an assistant fire marshal who spoke to the commission Friday afternoon (after sitting somewhat steely-faced through the morning portion of the meeting with Beyler and DeHaan), Vasquez did rule out other possible causes of the fire – it's just that he didn't record it in his reports. Salazar said that when he began as a lawyer with the office in 1994, he'd noticed the reports were often sparse. But, he suggested, that doesn't mean they're incomplete. There is "no way I can sit here and defend the lack of specificity in these reports," Salazar said. Nonetheless, the investigator in 1991 "followed ... protocol; they followed the practices that were being used at the time."

Indeed, the Fire Marshal's Office told the commission in August that it would stand by its initial determination in the Willingham case, a position that DeHaan said was "dismaying." DeHaan and Beyler are among nearly a dozen fire science experts who have reviewed the state's work in the Willingham case and concluded it relied too much on outdated science, even by 1991 standards.

The Innocence Project asked the Forensic Science Commission to review not only Willingham's case but also that of Ernest Willis. Like Willingham, Willis was convicted of arson and sentenced to die. He was later exonerated, however, based on expert opinion that the investigation was flawed and the arson determination erroneous. Willis was released from prison just months after Willingham was executed. Beyler told commissioners that the state's work in both cases was faulty.

Beyler's meeting with the commission was initially scheduled for October 2009. Just days before the meeting, however, Gov. Rick Perry replaced several commission members – including Sam Bassett, an Austin defense attorney whom the panel had appointed as chair – and installed Williamson County District Attorney John Bradley as the new head of the group. Bradley indefinitely postponed the Beyler meeting and advocated scrapping it altogether, a move that was blocked by the members of the panel who are actually scientists.

That didn't stop Bradley last week from behaving combatively toward Beyler, DeHaan, and even a fellow commissioner, Tarrant County chief medical examiner Nizam Peerwani, as Bradley lobbed softballs at Salazar. In both the tone and the substance of his questions, Bradley seemed intent on agreeing with Salazar that the state's success or failure in investigating the Willingham fire is little more than a matter of personal judgment. Whether his fellow commissioners will agree – and what will happen next in the review of the Willingham case – remains to be seen.

Source: The Austin Chronicle, January 14, 2011

Texas panel re-examines arson execution case

Willingham's house
after the blaze

The execution of a Texas man for the deaths of his 3 small children in a house fire came under renewed scrutiny Friday as a state panel heard from arson experts who reviewed the evidence that sent Cameron Todd Willingham to the death chamber 7 years ago. The Texas Forensic Science Commission invited the fire experts to testify amid the Innocence Project's insistence that Willingham was convicted with faulty evidence and was innocent when he was put to death in 2004. The New York-based organization specializes in wrongful conviction cases.

Prosecutors in Corsicana, about 60 miles south of Dallas, have insisted Willingham's conviction and execution was proper, and the State Fire Marshal's Office has stood behind the arson finding.

Texas Forensic Science Commission chairman John Bradley said the board didn't plan to make a decision Friday and the session was an opportunity for members to ask questions. The commission invited 4 scientists to testify: Craig Beyler of Baltimore, John DeHaan of California, Thomas Wood from Houston and Ed Salazar of the state Fire Marshal's Office.

Beyler is among several experts who have challenged the conclusion that arson caused the 1991 fire that killed Willingham's 3 daughters. The chairman of the International Association of Fire Safety Science and one of the foremost experts in the field, Beyler wrote in a 2009 report that investigators didn't follow standards in place in 1991 and didn't have enough evidence to make an arson finding.

The opinions of a state fire official in the case were "nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation," Beyler wrote.

He was scheduled to testify before the commission in 2009, but Bradley canceled that meeting in an effort to close the case and have the panel conclude investigators didn't commit professional misconduct in the case. Other members of the commission rebuffed Bradley's efforts, leading to Friday's hearing.

Beyler insisted Friday that the cause of the fire should have been listed as undetermined.

"I haven't changed my opinion in the year and a half since I wrote the report," he said.

Bradley said he wasn't quibbling with Beyler's opinion but said he believed the investigators "did the best they could given standards at the time."

"I think we'll differ on that," Beyler responded.

Willingham always maintained his innocence, including in his final statement from the death chamber gurney -- an obscenity-filled diatribe aimed at his ex-wife. She has said he confessed his guilt to her when she met with him days before his execution, but Innocence Project lawyers say her story has changed over the years.

Death penalty opponents have aimed to have the Willingham case become the first one in which a prisoner was formally declared wrongfully put to death.

The forensic commission's involvement became politically charged after Republican Gov. Rick Perry removed three members in 2009, days before they were to review reports casting doubt on Willingham's guilt. Bradley has been an ally for Perry in trying to close the inquiry.

The Innocence Project has objected that two arson investigators who testified on its behalf at an October court of inquiry about the Willingham case, Gerald Hurst and John Lentini, were "notably absent" among investigators the commission invited to Friday's meeting.

The October hearing was cut short by an appeals court after prosecutors successfully challenged the objectivity of the judge holding it because he'd received an award from an organization that opposes the death penalty.

Willingham's defense didn't include a fire expert to counter the state's witnesses because the one hired by his attorney also said arson started the fire.

Related article: "Trial by Fire", The New Yorker, Sept. 7, 2009

Source: Associated Press, January 8, 2011

Arson probe that led to execution assailed

AUSTIN — Fifteen months after he first was scheduled to testify before the Texas Forensic Science Commission, Baltimore fire expert Craig Beyler on Friday finally got a chance to tell panel members how botched arson investigations helped send a Corsicana man to his execution.

As has become typical in the complex and politically charged case, however, the story did not end there.

Officials from the Texas Fire Marshal's Office, rallying in defense of a now-dead arson investigator, offered counter-testimony, saying that rulings made in 1991 are as valid today as they were then.

The Forensic Science Commission took no action Friday. The panel's next scheduled meeting is Jan. 21 in Austin.

Click here to read the full article

Source: Houston Chronicle, January 8, 2011

It's time for capital punishment to become Texas history

The death penalty in Texas is fraught with demonstrable error, and the people of the state seem more willing to deal with that fact than their leaders.

Events of the past year have convinced us that defendants have been executed on the basis of invalid evidence. They may or may not have been guilty, but the fact that we have convicted people based on faulty evidence leads inexorably to a horrible likelihood — that we have executed innocent people. The high number of death row prisoners eventually exonerated makes a strong case that other innocent but less fortunate prisoners have been wrongfully put to death.

We don't lose sleep over the execution of guilty murderers. But the possible or probable execution of the innocent should trouble every Texan.

The freeing of Anthony Graves after 18 years in prison, many on death row, for a false murder conviction is only the most recent example of how badly the system is broken. His ordeal underlines how long the victims of wrongful death sentences must suffer in the cases where the errors are discovered before execution.

Two men, Cameron Todd Willingham, convicted of murder by arson, and Claude Jones, convicted of murder during a robbery, were executed on the basis of evidence later shown to be questionable or false.

We are heartened by figures showing that Texas and Harris County juries are sending fewer defendants to death row. Once known as the death penalty capital of the United States, Harris County has relinquished that grim title in recent years. If Texas were a nation, it would have been among the top state executioners in the world in past decades, in the company of judicial pariahs like China and Iran.

Since executions resumed in 1976, 464 have been carried out in Huntsville. Texas still led the nation in 2010 with 17 executions, more than twice the number of runner-up Ohio. This past year juries in Texas sentenced only eight people to die, while Harris County has had only two capital punishment sentences handed down.

Legal experts attribute the drop in death judgments to the availability of a life-without-parole statute passed by the Texas Legislature in 2005, and to the escalating costs to counties of the appeals process involving capital sentences. The exoneration of 11 Texas death row residents has undoubtedly made the public - and potential jury pools - more aware of the possibility that a death sentence could be an irreversible mistake.

Still, even as Texas juries show increased restraint in utilizing capital punishment, Texas elected officials - including most jurists - seem equally determined not to examine its flaws. When District Judge Kevin Fine attempted to conduct a hearing on the constitutionality of the death penalty as practiced in Texas, Harris County District Attorney Pat Lykos first ordered her prosecutors to stand mute in court and then successfully appealed to the Texas Court of Criminal Appeals to halt the hearing. More than 60 people, including former Texas Gov. Mark White, have filed a brief with the high court in support of allowing the death penalty hearing to go forward.

When the state Forensic Science Commission attempted to investigate whether Willingham was executed for the murder of his three children based on faulty arson evidence, Gov. Rick Perry replaced the commission chairman and several board members. A protracted and inconclusive investigation followed. An attempt by an Austin judge to conduct a hearing on the Willingham case has also been stymied by an appeals judge, who ruled that the jurist should have recused himself.

The accumulating evidence indicates that the current application of the death penalty in Texas involves an unacceptably high risk of killing innocent people. Yet even as the evidence of false convictions and wrongful executions piles up, only the participants at the base of the Texas criminal justice system, jury members, seem to be waking up to the reality of this evil.

Some opponents have called for a moratorium on executions in Texas until new, unspecified safeguards are in place to protect the innocent. Yet it's difficult to imagine a fail-safe route to execution.

Besides, we already have the ultimate safeguard on the books: the sentence of life without parole. Spending the rest of one's days in prison is as terrifying a deterrent to most people as quick execution. By ending state-sanctioned killing, in the future when a jury makes a mistake, resurrection won't be required to remedy it.

Source: Editorial, Houston Chronicle, January 1, 2011

Only 2% of Texas Counties Imposed Death Sentences This Year, According to New Report from TCADP

Huntsville Unit, Huntsville, where
executions by lethal injection
are carried out in Texas.

Death sentences, executions drop in 2010 as concerns about reliability and fairness continue to plague Texas death penalty system.

Death sentences in Texas have dropped more than 70% since 2003, reaching a historic low in 2010 according to the Texas Coalition to Abolish the Death Penalty's (TCADP) new report, Texas Death Penalty Developments in 2010: The Year in Review. TCADP, an Austin-based statewide, grassroots advocacy organization, releases this annual report each December in conjunction with the anniversary of the resumption of executions in Texas in 1982.

Juries condemned eight new individuals to death in Texas in 2010, which is the lowest number of new death sentences since the U.S. Supreme Court upheld Texas' revised death penalty statute in 1976. These new sentences occurred in 6 counties: Brazos; Dallas; Harris; Nueces; Rusk; and Travis.

Recent sentencing trends illustrate the arbitrary and biased imposition of the death penalty. An analysis of data from 2007 to 2010 reveals that only 21 counties – 8% of the 254 counties – meted out death sentences over the last 4 years.

Out of a total 43 death sentences imposed statewide between 2007 and 2010, Dallas County leads with 7, followed closely by Harris County, with 6 new sentences. Bexar and Travis Counties each accounted for 3 new death sentences since 2007. Nearly 3/4 of all death sentences in Texas over the last 4 years have been imposed on people of color – 40% African American, 30% Hispanic/Latino, and 2% other.

As part of the report, TCADP has produced 2 interactive maps highlighting new death sentences by county from 2007 to 2010 and from 1976 to 2010. Clicking on each county reveals the total number of sentences, the number executed, the number awaiting execution, and the number exonerated. See below for links to each map.

The number of executions also dropped in 2010. The State of Texas executed17 people, the lowest number since 2001. The state remains the nation's leading executioner, accounting for approximately 37% of U.S. executions in 2010. The number of executions in Texas this year represents a smaller percentage of the national total than it has in recent years, however.

"Texas – along with the rest of the nation – is moving away from the death penalty," said Kristin Houlé, Executive Director of the Texas Coalition to Abolish the Death Penalty. "The system is broken beyond repair, and the continued decline in new death sentences shows that jurors and prosecutors in Texas are seeking other ways to address violent crime."

Concerns about wrongful convictions and emerging evidence of wrongful executions dominated headlines this year. On October 27, 2010 Anthony Graves walked out of the Burleson County Jail after spending 18 years in prison – including 12 years on death row – for a crime he did not commit. Prosecutors dropped all charges against Graves and declared him innocent after conducting their own investigation of the case. His conviction was based on the testimony of Robert Carter, who was convicted and executed for the same crime in 2000 and who recanted several times, including from the gurney. Anthony Graves is the 12th person in Texas to be wrongfully convicted and removed from death row and the 138th nationwide.

The ongoing inquiry into the case of Cameron Todd Willingham also underscored the fallibility of the system. Willingham was executed in 2004 for setting a fire to his Corsicana home in 1991 that killed his 3 young daughters. The Texas Forensic Science Commission admitted "flaws" in the science used to convict him. In January it will hold a special meeting with some of the fire experts who have examined the case since the time of conviction and concluded that there was no evidence to support the finding of arson.

In another case of "flawed" science, recent DNA testing of evidence that was used to convict and execute Claude Jones ten years ago this month revealed that the strand of hair belonged to the victim, not to Jones, as a forensic expert testified during his 1990 trial. While the DNA results do not exonerate Jones, they raise serious questions about the reliability of his conviction.

Other highlights of Texas Death Penalty Developments in 2010: The Year in Review include the following:

* In 3 capital murder trials, juries rejected the death penalty and opted for a sentence of life in prison without the possibility of parole. Over the last 3 years, juries have rejected the death penalty in a dozen cases (2 each in Travis and Bexar Counties).

* 3 inmates scheduled for execution in 2010 received last-minute stays; the execution date of another inmate was withdrawn. On March 24, Henry “Hank” Skinner received a stay from the U.S. Supreme Court shortly after eating his "last meal." In October, the Court heard arguments to determine whether Skinner can seek access to post-conviction DNA testing through the federal Civil Rights Act. Texas officials have refused to release key pieces of evidence gathered at the crime scene in 1993 for testing.

* At least 6 inmates received reduced sentences in 2010 and were removed from the death row population, including several inmates whose death sentences were overturned because jurors did not hear mitigating evidence during their original trials. 3 other inmates died in custody, including Ronald Chambers, who spent 35 years on death row and was awaiting a 4th sentencing hearing related to the 1975 murder of Mike McMahan.

* A nationwide shortage of the 1st drug used in the lethal injection protocol, sodium thiopental, led some states to postpone executions as their supplies dwindle or expire. In November, officials with the Texas Department of Criminal Justice revealed that they had enough drugs on hand to execute 39 people, but that doses of sodium thiopental will expire in March 2011.

* There currently are 317 people (307 men and 10 women) on death row in Texas. Texas holds the 3rd-largest death row population in the nation, after California (713) and Florida (393).

"2010 may go down in history as the 'Year of Doubt,' when case after case exposed the flaws and failures of the Texas death penalty and shook public faith in the criminal justice system to its core," said Houlé. "During this time of fiscal crisis, TCADP urges all elected officials to take a good hard look at the death penalty system and ask whether this is a good use of tax payers' dollars when there are alternative ways to protect society and punish those who are truly guilty."

Texas Death Penalty Developments in 2010: The Year in Review is available online at www.tcadp.org/TexasDeathPenaltyDevelopments2010.pdf . Contact Kristin Houlé at khoule@tcadp.org to receive a copy directly via email.

See http://tcadp.org/2007-2010-new-death-sentences/ for a map of new death sentences by county from 2007 to 2010.

See http://tcadp.org/death-sentences-by-county1976-2010/ for a map of death sentences by county from 1976 to 2010.

Download a pdf version of this press release. Obtener una copia de este anuncio.

Source: Texas Coalition to Abolish the Death Penalty, December 13, 2010

Death penalty use drops in Texas to record low

Only 8 people were condemned to die in Texas this year, the lowest number since the death penalty was reinstated in 1976, according to a new report from the Texas Coalition to Abolish the Death Penalty.

Despite Texas' bloodthirsty international image, only two percent of Texas counties used the death sentence this year: Brazos, Dallas, Harris, Nueces, Rusk and Travis. Dallas sent two of the eight to death row this year.

Source: Dallas Morning News, December 13, 2010

10 Infamous Cases of Wrongful Execution

There’s no doubt about it – the U.S. criminal justice system is not perfect. And those imperfections become apparent when someone is the innocent victim of the death penalty. Wrongful executions have been happening for hundreds of years, but until the advent of DNA evidence and improved forensics technology, these individuals have remained guilty as charged.


Today, DNA evidence has exonerated and released 15 death row inmates since 1992, but only eight inmates have been acknowledged of their possible innocence after execution by the Death Penalty Information Center.


Here are 10 infamous cases of wrongful execution that deserve a second look:

1. Claude Jones: Claude Jones was executed in 2000 for the murder of liquor store owner Allen Hilzendager, in San Jacinto County in 1989. On Nov. 14, 1989, Jones and another man were seen pulling into a liquor store in Point Blank, Texas. One stayed in the car while the other went inside and shot the owner. Witnesses who were standing across the road couldn’t see the killer, but Jones and two other men, Kerry Dixon and Timothy Jordan, were all linked to the murder. Although Jones said he never entered the store, Dixon and Jordan testified that Jones was in fact the shooter and they were both spared the death penalty. The deciding factor and only admissible evidence in Jones’ conviction came down to a strand of hair that was found at the scene of the crime. A forensic expert testified that the hair appeared to have come from Jones, and he was sentenced to death. Forensic technology was underdeveloped during the 1990 trial and it wasn’t able to match Jones’ DNA with the hair sample. Therefore, before his 2000 execution, Jones’ attorneys filed petitions for a stay of execution with a district court and the Texas Court of Criminal Appeals and requested that the hair be submitted for DNA testing that was now possible, but all courts and former Texas Governor George W. Bush denied Jones and he was executed. In an attempt to prove that Texas executed an innocent man, the Innocence Project and the Texas Observer filed a lawsuit in 2007 to obtain the strand of hair and submitted it for DNA testing, which was determined to be the hair of the victim.

2. Jesse Tafero: Jesse Tafero was executed by electric chair in 1990 for murdering two Florida police officers, Phillip Black and Donald Irwin. The murders occurred on Feb. 20, 1976, when Black and Irwin approached a parked car at a rest stop and found Tafero, his partner Sonia "Sunny" Jacobs, her two children and Walter Rhodes asleep inside. They were ordered to get out of the car when the officers saw a gun lying on the floor inside the car and, according to Rhodes, Tafero proceeded to shoot both officers and took off in their police car. They disposed of the police car and stole a man’s car, but were arrested after being caught in a roadblock. The gun was found in Tafero’s waistband, although it was legally registered to Jacobs. Tafero had been convicted of robbery and had served seven years of a 25-year sentence before being convicted for murder. Tafero and Jacobs claimed that Rhodes was the lone shooter, but Rhodes testified against them in exchange for a lighter sentence. Rhodes later admitted that he was responsible for the killings, but Tafero was still sentenced to death.

3. Cameron Todd Willingham: Cameron Todd Willingham was executed in 2004 for murdering his three young daughters by intentionally setting fire to the family home in Corsicana, Texas. The arson-murder case fueled much controversy about Willingham’s guilt, which was determined by the case’s primary evidence – the arson investigators’ findings. They determined that the fire was deliberately set with the help of a liquid accelerant due to specific burn patterns, laboratory tests and points of origin. Willingham maintained his innocence and appealed his conviction for years, but was executed at the Texas State Penitentiary in Huntsville on Feb. 16, 2004. In 2009, the Texas Forensic Science Commission panel reevaluated the case and determined that state and local arson investigators used "flawed science" when they labeled the fire as arson. Although advances in fire science and arson investigations have improved since 1991, the year of the fire, experts now believe the Corsicana Fire Department was negligent in their findings. The science commission is still investigating the arson ruling, and if the judge clears Willingham, it would be the first time an official has formally declared a wrongful execution in Texas.

4. Larry Griffin: Larry Griffin was executed in 1995 for a drive-by shooting that killed 19-year-old drug dealer Quintin Moss in St. Louis. Griffin immediately became a suspect because his older brother Dennis Griffin, another well-known drug dealer, was murdered just six months earlier. Moss was believed to have killed Dennis Griffin. Although there were a number of possible suspects in the murder of Moss, a witness account by a white man named Robert Fitzgerald, who claimed to have seen the shooting, knew the license plate number of the vehicle and could identify the gunman was all it took to have Griffin arrested. Fitzgerald was a convicted felon who had a long history of run-ins with the law, which raised concerns about the legitimacy of his story. During the 1993 hearing, Fitzgerald admitted to being unsure if Griffin was the man in the car after all. There were two key witnesses who wavered and a third person whose testimony could have helped Griffin, but was never contacted by either the defense or prosecution. Griffin continued to proclaim his innocence until his execution. The NAACP Legal Defense and Educational Fund investigated the case after Griffin’s execution and wanted to uncover more witness accounts that could support their claim that Missouri executed an innocent man.

5. Ruben Cantu: Ruben Cantu was executed in 1993 for the murder-robbery of a San Antonio man at the age of 17. Cantu had no previous convictions, but was pinpointed as a violent murderer who shot one victim nine times, as well as shot the only eyewitness nine times with a rifle, but he lived to testify. Juan Moreno offered his testimony to police and identified Cantu as the shooter, but later recanted, admitting that he said Cantu out of influence and fear of authorities. Although the case had a compelling witness testimony, there was no physical evidence that linked Cantu to the crime. In addition, his co-defendant David Garza, who allegedly committed the murder-robbery with Cantu, remained silent and signed a sworn affidavit allowing his accomplice to be falsely accused. Cantu maintained his innocence until his execution and claimed that he had been framed in this capital murder case.

6. David Spence: David Spence was executed in 1997 for murdering three teenagers in 1982 in Waco. Spence was convicted of raping, torturing and murdering two 17-year-old girls and murdering an 18-year-old boy. As the original allegations go, Spence was hired by convenience store owner Muneer Deeb to kill one girl and he ended up killing these three teens by mistake. Deeb was charged and sentenced to death, but later received a re-trial and was acquitted. Authoritative sources even had serious doubt about Spence’s guilt. Although there was no clear physical evidence to link Spence to the crime, prosecutors used bite marks that were found on one of the girl’s body and matched it to Spence’s teeth. Even jailhouse witnesses were bribed into snitching on Spence. Despite weak evidential support and jail mate testimonies, Spence was executed.

7. Carlos De Luna: Carlos De Luna was executed in 1989 for the 1983 stabbing of Wanda Lopez, a Texas convenience store clerk. There were two eyewitnesses who played a key role in the conviction of De Luna. Before the murder-robbery, George Aguirre was filling up at the gas station where the crime occurred, when he saw a man standing outside the store slide a knife with the blade exposed into his pocket and enter. The man asked Aguirre for a ride to a nightclub, but he refused and went inside the store to warn Lopez about the suspicious man. Aguirre left and Lopez called the police to describe the man. As she was on the phone with a dispatcher, the man came back into the store and robbed her. The second witness, Kevan Baker, pulled into the station and heard bangs on the station’s window and saw a man struggling with a woman. As Baker approached the gas station, the murderer threatened him and took off. When police searched the area, they found De Luna not far from the station. He was shirtless and shoeless in a puddle of water and screamed, "Don’t shoot! You got me!" Both Aguirre and Baker confirmed De Luna was the man at the station. Little to no physical evidence was collected at the crime scene, including blood samples and fingerprints that could have helped De Luna. De Luna maintained his innocence and repeated that Carlos Hernandez was the actual killer. Despite Hernandez’s trouble with the law and repeated confessions to the murder, De Luna was executed.

8. Joseph O’Dell: Joseph O’Dell was executed in 1997 for raping and murdering Helen Schartner. O’Dell was convicted on the basis of blood evidence and a jailhouse snitch. O’Dell represented himself and continued to proclaim his innocence in various unsuccessful appeals to the Virginia Supreme Court, Federal District Court and the Supreme Court. O’Dell requested that the state submit other pieces of evidence for DNA testing, but he was refused. Despite much effort and several appeals, the 4th Circuit of the U.S. Court of Appeals upheld his conviction and reinstated his death sentence. After his execution, Lori Urs, an anti-death penalty advocate and former wife to O’Dell, sought to further investigate the case and exonerate O’Dell based on mistaken blood matches, court opinions and refusal of DNA testing. However, the last of the DNA evidence from O’Dell’s case was burned in March 2000 and the appeals were laid to rest.

9. Leo Jones: Leo Jones was executed in 1998 for murdering a police officer in Florida. Although Jones confessed 12 hours after the murder, he said that he was forced to say he did it during hours of intimidating police interrogation, where they threatened his life and made him play Russian roulette. One witness believed that the police department was out to get Jones because he had assaulted an officer once. The same two arresting officers were released from the department shortly after for using violence in other cases. Despite repeated appeals, other potential suspects and witness testimonies in support of Jones’ exoneration, the sentencing stood as is. Jones was also denied another method of execution and was killed by the electric chair.

10. Timothy Evans: Timothy Evans was sentenced to death by hanging for the murder of his daughter in 1949 at their home in Notting Hill, London. Evans maintained his innocence and repeatedly accused his neighbor, John Christie, of murdering his wife and daughter. The police investigation and physical evidence used to convict Evans was weak. After Evans’ trial and execution, Christie was found to be a serial killer who was responsible for murdering several women at his residence. There were massive campaigns to overturn Evans’ conviction and an official inquiry was conducted 16 years later. It was confirmed that Evans’ daughter had been killed by Christie, and Evans was granted a posthumous pardon. This case of injustice had a strong influence in the UK’s decision to abolish capital punishment.

Source: Criminal Justice Degrees Guide, December 13, 2010

Prosecution 'Stands Mute' At Texas Death Penalty Hearing

Judge Kevin Fine

HOUSTON — Prosecutors on Monday told a judge presiding over an unusual court hearing on the constitutionality of the death penalty in Texas that they won't participate in the legal proceeding and will "stand mute" during the hearing.

Despite the prosecution's actions, the judge ordered the hearing to go forward and lawyers for John Edward Green Jr., the Houston man who asked for the proceeding, began calling witnesses.

The attorneys say will try to show that the way death penalty cases are handled in Texas creates a risk that innocent people will be executed. Green faces a possible death sentence if convicted of fatally shooting a Houston woman during a June 2008 robbery.

The hearing was ordered by Kevin Fine, a state district judge in Harris County who in the spring granted a motion by Green's attorneys and declared the state's death penalty statute unconstitutional. Under heavy criticism, Fine clarified then rescinded his ruling and ordered the hearing, saying he needed to hear evidence on the issue.

Experts on eyewitness identification, confessions and forensic evidence are among those expected to testify at the hearing, which resumes on Tuesday and could last up to two weeks. Green's attorneys called four witnesses on Monday.

The first witness called was Richard Dieter, the executive director of the Death Penalty Information Center, a Washington, D.C.-based group that has been critical of capital punishment.

Dieter discussed the 138 exonerations of death row inmates that have occurred in the U.S. since 1978, including 12 in Texas. He said that for every nine executions that have occurred in the U.S., there has been one exoneration.

Dieter said his group's review of these exonerations has shown that faulty eyewitness testimony, unreliable informant testimony and false confessions are some of the factors that have contributed to innocent people being wrongfully convicted.

"The system, the number (of exonerations), the fortuity of finding mistakes would lead me to believe there is certainly a risk of executing the innocent and that risk still exists today," he said.

After Green's attorneys finished questioning Dieter, Fine asked prosecutor Alan Curry if he had any questions.

"We still respectfully refuse to participate in the proceeding your honor," Curry said.

Later during the hearing, Fine told Curry he expected prosecutors to participate.

"I have been instructed by my boss, the district attorney, to stand mute for the remainder of the proceedings," Curry said, adding he meant no disrespect to Fine or others involved in the hearing.

Before the hearing began, Curry reiterated objections prosecutors have had to the hearing, saying the issues being debated are settled case law and that some of the issues Green's attorneys plan to discuss at the hearing, such as crime clearance rates and alleged racial discrimination in how juries are chosen, have no relevance to Green's case. Fine asked Curry to submit his objections to the relevancy of some of the issues to be discussed but said the hearing would go forward.

Prosecutors unsuccessfully tried to get Fine removed from the case, saying he is biased against the death penalty.

Fine has said he believes capital punishment is constitutional and the hearing will focus only on the specific issues raised by Green's attorneys.

Also testifying on Monday was Sandra Guerra Thompson, a professor at the University of Houston Law Center and an expert on eyewitness identification. Guerra testified that she believes such identifications can be filled with problems, including witnesses being overconfident in recalling events and witnesses being influenced by a need to help authorities. She was a member of a panel created by the Texas Legislature that earlier this year made recommendations on improving eyewitness identification procedures and allowing more DNA testing to take place after convictions.

If Fine were to rule the state's death penalty statute is unconstitutional, prosecutors have said they would appeal the decision, which would have a good chance of being overturned. The Texas Court of Criminal Appeals, the state's highest criminal court, has previously ruled against similar challenges to the law like the one Green is making.

The hearing is unusual for Texas, a Republican state that has strongly supported capital punishment. The hearing is being held in Harris County, which includes the state's largest city, Houston, and has sentenced more people to death than any other Texas county – 286 since executions resumed in 1982. One hundred fifteen of those have been executed.

While anti-death penalty groups have lauded Fine, those in favor of capital punishment have called him misguided.

Green's attorneys say they plan to bring up executions that have been recently questioned, including that of Cameron Todd Willingham.

Willingham was put to death in 2004 for burning down his Corsicana home in 1991 and killing his 2-year-old daughter and 1-year-old twins. Several fire experts have found serious fault in the arson findings that led to his conviction.

Source: The Huffington Post, December 6, 2010

Texas Defender Service: The 6 best arguments against the death penalty in Texas

Execution chamber
Huntsville Unit, Texas

The following guest blog post was written by Andrea Keilen, Executive Director of Texas Defender Service.

This week, U.S. Supreme Court Justice Stevens published an essay detailing the Court's decisions that created a system infected with problems, and one he now believes is unconstitutional. Since 1976, 138 people have been exonerated from death row nationwide.

12 of them were in Texas.

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.

Beginning Monday, December 6, at a hearing next week in a Harris County District Court, expert witnesses will testify about the numerous flaws that leave Texas' system riddled with errors, inherently unreliable, and unconstitutional as applied.

Attorneys for John Green, who is charged with capital murder, will urge the court to rule the Texas death penalty statute unconstitutional because it creates an unacceptable risk that innocent people have been, and will be, wrongfully convicted and executed.

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.

At the hearing, witnesses will testify about the following factors, which taken together, create an unacceptable risk of wrongful conviction in capital cases:

1st, Texas has no standards to ensure that eyewitness testimony is obtained in ways that protect against the risk of mistaken identification.

Texas does not follow the scientific research or best practices on eyewitness identification recommended by the U.S. Department of Justice, the International Association of Chiefs of Police, or the ABA. Nationwide, more than 75% of individuals exonerated by DNA evidence were convicted because of faulty eyewitness identifications .

2nd, Texas allows the introduction of confessions that have been obtained without safeguards to protect against false confessions. Texas law does not require recording interrogations . 25 % of the exonerations in the U.S. revealed through DNA testing involved a false confession .

3rd, use of informant testimony is largely unregulated in Texas.

Although in 2009 Texas began to require corroborating evidence for jailhouse informant testimony, that standard is loosely defined. Further, Texas has not implemented other important safeguards involving greater transparency and pretrial reliability screenings which more fully protect against false testimony. In one study, nearly 50% of wrongful murder convictions involved perjury by a jailhouse snitch or another witness who stood to gain from false testimony. (Professor Gross study, p. 39)

4th, pervasive flaws have been identified in the analysis of presentation of forensic evidence that result in unreliable results. In a study of DNA exonerations , the prosecution provided invalid forensic testimony in 60% of the cases, that is, testimony that misstated the data or was not supported by the data. (Garrett and Neufeld, p. 41) The National Academy of Sciences recently issued a broad critique of the nation's forensic system. The risk of wrongful conviction due to faulty forensic science at the is, standing alone, constitutionally intolerable.

5th, pretrial discovery procedures are inadequate to safeguard against the prosecution's suppression of evidence favorable to the accused.

A survey of published capital cases in Texas documented state misconduct in 41 capital convictions. (Texas Defender Service, p. 48)

6th, Texas prosecutors in Harris County and elsewhere have a shameful history of excluding African Americans from juries. Although this practice has been illegal for more than a century, recent research shows that discrimination in jury selection increases the risk of wrongful convictions by reducing the thoroughness and accuracy of jury deliberations.

Texas routinely fails to provide competent counsel and adequate defense funding in state habeas corpus proceedings. Extensive research, and a State Bar Task Force have all reached this conclusion. In almost 40% of state habeas cases, the petitions did not include any materials beyond the existing record, a clear indication of a lack of investigation.

The Texas clemency procedure lacks most elements of a sufficient clemency review and fails in its role as the last safeguard against executing the innocent. For example, Claude Jones was executed in 2000 based on false evidence. During the clemency review, then-Governor Bush was not informed that Mr. Jones had requested DNA testing that might have exonerated him. Ten years after Mr. Jones' execution, a DNA test showed that the hair sample at the crime scene was not his.

All 3 branches of Texas government have created entities to review issues in the criminal justice system based on the risk of error:

•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 .

But virtually nothing has been done to reduce the most prevalent causes of wrongful convictions Innocent people can and do get sentenced to death in Texas. Action by the courts and legislature to address these serious problems is long overdue.

Source: Dallas Morning News, December 3, 2010

Hearing on Constitutionality of Texas Death Penalty - Monday Dec. 6 in Houston Judge Fine's Courtroom

Judge Kevin Fine

A hearing on the constitutionality of the Texas death penalty will be held in Judge Kevin Fine's courtroom in Houston on Monday, December 6, at 9 AM.

Texas' use of capital punishment will undergo legal scrutiny at this hearing. Evidence and arguments will likely be presented that there is substantial risk that the state's death penalty law does not adequately protect against the execution of an innocent person.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. Green’s defense attorneys will argue that a number of factors in Texas' death penalty system increase the risk of wrongful executions in Texas, including a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions and a history of racial discrimination in jury selection.

State District Judge Kevin Fine of the 177th Criminal Court in Harris County (Houston) set the hearing for Dec. 6 as part of a pretrial motion in which two defense attorneys for a Houston man facing a possible death sentence asked that Texas' death penalty statute be declared unconstitutional.

In March, on a motion filed by attorneys for John Edward Green Jr. (facing death for the 2008 robbery and murder of Huong Thien Nguyen in Houston), Fine ruled that capital punishment as practiced in Texas is unconstitutional for failing to adequately protect the innocent. Fine quickly rescinded that original order, but he has granted Green's attorneys the right to a hearing on the matter. Green's attorney Casey Keirnan told the Associated Press that he expects the hearing could last up to two weeks and that death penalty experts from around the country will likely testify. "I think everybody in the United States would agree that the possibility exists" that an innocent person has already been executed, he said.

TEXAS MORATORIUM NETWORK: If you live in Houston or can be there, there will be a demonstration against the Texas death penalty outside the courthouse at 8 AM on Monday Dec. 6, 2010 (RSVP on the Facebook event page). Location: Harris County Criminal Justice Center, 1201 Franklin, 19th Floor, Houston, Texas 77002

Source: Texas Moratorium Network, December 1, 2010

Texas Judge to Rule on Death Penalty Constitutionality

Texas' messy death penalty saga continues Monday in a Houston courtroom, where a district judge will for the first time in state history consider whether the risk of executing an innocent person makes capital punishment unconstitutional.

Harris County District Judge Kevin Fine is set to hold a hearing in the case of John Edward Green, who is charged with fatally shooting a Houston woman during a robbery in June 2008. Harris County prosecutors are seeking the death penalty in the case. But Green’s attorneys and capital punishment opponents want Fine to rule that prosecutors can’t seek the death penalty because the way it is administered in Texas is unconstitutional. They say they have proof that at least two wrongfully convicted men have been executed. With so many chances for error in the courts, they argue, Texas shouldn't risk putting an innocent person to death. “The current system is profoundly and fundamentally flawed from top to bottom,” says Andrea Keilen, executive director of the Texas Defender Service.

Click here to read the full article.

Source: The Texas Tribune, December 2, 2010

Death Penalty May Be Ruled Unconstitutional In Texas

WASHINGTON -- At a hearing scheduled for Monday, December 6, a district court in Texas will decide whether the death penalty is unconstitutional in the state based on the disproportionately high risk of wrongful convictions in Texas. This is the first time in the state's history that a court will examine the problem of innocent people being executed in a Texas capital trial.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. According to legal documents obtained by HuffPost, Green's defense attorneys will be arguing on Monday that a number of factors in Texas's legal system increase the risk of wrongful executions there, including a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions and a history of racial discrimination in jury selection.

The death penalty in Texas came under fire earlier this month when a DNA test conducted on a single hair undermined the evidence that convicted a Texas man of capital murder over ten years ago. The hair had been the only piece of evidence linking Claude Jones to the crime scene, but the new test results revealed that the hair likely belonged to the murder victim instead of Jones.

Maurie Levin, a law professor at the University of Texas and an expert on capital punishment, said she would not be surprised if Judge Kevin Fine ruled the death penalty to be unconstitutional in Texas on Monday.

"I would think that Judge Fine would have substantial basis in the evidence that I'm aware of that would lead to a conclusion that the Texas death penalty is unconstitutional as applied," she told HuffPost.

Since 1976, twelve people have been exonerated from death row in Texas out of 139 nationwide, and four study commissions set up by the Texas government have formally recognized the serious risks of wrongful convictions there. Out of the 464 people that have been executed in Texas, about 70 percent have been minorities, according to the Texas Department of Criminal Justice.

Andrea Keilen, executive director of Texas Defender Service, said it is clear to her that the death penalty is handed down unfairly and erratically in Texas.

"It is my opinion and the opinion of many people close to this issue that the Texas system is wholly incapable of carrying out the death penalty in a fair and reliable way," she told HuffPost. "Texas is remarkably out of step with the rest of the country and certainly out of step with what the average Texan would expect when dealing with capital punishment. We're seeing in case after case that the system is just inherently prone to the risk of wrongful convictions and has a complete inability to correct its mistakes."

Keilen said that while the state has a history of strong popular support for capital punishment, she thinks Texans would feel differently about the practice if they knew all the facts.

"I think there is support for the idea of the death penalty among the average Texan, but that if the average Texan were to get a closeup view of how the system actually operates, that support would significantly wane," she said. "It's an abstract concept to most people, but if they saw how abysmal the quality of representation can be, how the system is biased racially, how prosecutors can not disclose evidence, or how DNA testing can be wrong, my opinion is that they as reasonable people would find it unacceptable."

Source: The Huffington Post, December 2, 2010