Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

As everyone knows, Hank Skinner is scheduled to be executed today. One of his lawyers is Rob Owen. Rob is a friend of mine, and one of the best death penalty lawyers around. It takes a special kind of lawyer to devote themselves to death penalty work. They invest themselves in their cases, and developed friendships with their clients and families. They do so knowing that in the end they are going to lose most of the time. Each time they are devastated, but they pick themselves up and go on to the next case.

It’s no surprise that most of the people sentenced to death are guilty. There are always questions about whether they deserve the death penalty, or whether they received a fair trial. Seldom do you encounter someone who is actually innocent, or at least you believe they are. The stresses associated with that are enormous. The thought that an innocent person may be executed is almost too much to grasp. Rob is in that position now. I don’t know whether Hank Skinner is guilty or not. I do know that most of those questions could be answered with just a few tests.

Rob and the other lawyers representing Hank Skinner are now basically on a death watch. They have done all they can do, and all that is left is waiting. They wait for the call from the governor’s office, which will tell them whether Hank Skinner lives or dies. It’s almost like waiting in an emergency room for the doctor to come talk to you.

Their ordeal brings back memories of my own. Memories that are not pleasant. It was not long ago that I was in the same position they are, waiting for news on Todd Willingham. I had hoped up until the final call that someone was going to step in and stop the proceedings. To this day I still do not understand how so many could look the other way at compelling evidence of innocence. Yet they did. The process and procedure was more important than the result.

I would have hoped that something was learned from Willingham. If nothing else, I always hoped that it would cause courts and government officials to look twice at claims of innocence. I know there are some who still claim Willingham was guilty, but you have to look hard to find them. The evidence of his innocence is now overwhelming. That same evidence could have been presented in a hearing if only the governor or someone would have stepped in and given him the opportunity to do so. I still don’t know how anyone can live with a decision like that. Apparently it’s not a problem.

Like everyone else I will be checking the computer frequently today to see if there is any news on this case. Frankly, I’m not hopeful. Nevertheless, you can always be surprised. My thoughts are with Rob and those with him. I know no matter what happens it will be back again and somebody will be lucky to have them for his lawyer.

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Last week the court denied relief for Troy Davis. His case has bounced back and forth in the courts. Since his original conviction, he has obtained recantation's from several of the government's witnesses, as well as an admission from someone that they actually committed the offense. Needless to say, the litigation has focused on whether Davis is innocent or not.

The court affirmed the conviction and corresponding death sentence, by a vote of 2 to 1. As a result, there is a very real possibility that he will be executed even in light of evidence that at least raises questions about his guilt.

The legal system is not designed to judge shades of guilt or innocence. You are either guilty or not. In most cases that may be sufficient.Many people are willing to live with the possibility that guilt may not be firmly and clearly established (i.e. beyond all doubt as prosecutors are fond of reminding jurors). However, where death is involved, there should be an alternative approach.

No one can seriously argue at this point that juries never make mistakes. They do the best they can, with the evidence presented. In many cases there may be new evidence developed during the post-conviction process. What a jury would do with that is nothing more than a guess; a guess that's not being made by jurors, but instead by courts. In those cases, they are making life and death decisions, based entirely on what they THINK a jury would do.

Troy Davis's case represents the problem with establishing innocence. Once a jury finds a person guilty, a presumption of guilt is created. Overcoming that presumption is difficult, if not impossible to do. As in Davis's case, many times a defendant may obtain a recantation from a witness. While most people would think that's significant, courts look at recantations skeptically. Especially when it occurs long after the trial, courts place little faith in them. Seldom will someone obtain relief if all they have is a recantation.

Admissions of guilt are also looked at step typically, especially if the person can no longer be prosecuted for the offense. Recently, a defendant in Dallas was released after being exonerated through DNA evidence. Another person had claimed credit for the offense years earlier. Had the authorities taken that seriously, they could have ensured the right person was convicted. As it turned out, limitations had run, and no one was ultimately prosecuted for the crime. I can understand why prosecutors look at such claims with skepticism. However, they must do more than dismiss them outright. Somehow they must at least consider the possibility that they may be credible, and at least do some type of investigation.

 

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If you ever wondered why many people have such a poor opinion of the justice system, it's because of cases like Carl Wayne Buntion. The Fifth Circuit recently reversed a order from the Federal District Court which  had granted relief from his death sentence. The District judge concluded the trial court judge was biased, and therefore Buntion did not receive a fair trial. The Judge was William Harmon from Houston, who among other things, put up a post card of "hanging judge" Roy Bean during the trial. He also made the statement that he was "doing God's work" to see that Buntion was executed. If that wasn't enough, he changed several rulings after calling the District Attorney's office during trial, and getting advice them. He also tried to remove one of the lawyers, and then realized he couldn't do that. When the lawyers tried to have him removed, he threatened to accuse them of possessing drugs if they didn't stop challenging his behavior.  The  truly amazing thing is that most of the allegations were not disputed.

It's not too difficult why the federal district judge concluded the judge was biased. He obviously saw what happened, and knew something needed to be done.

Obtaining relief in a federal habeas proceeding is an extremely difficult thing to do. Much of the difficulty is the result of the standard of review. The courts are reviewing State court decisions, and will not second guess them unless they really stepped out of line. That means a federal court can believe a state court made the wrong decision, and still not grant relief. In a convoluted legal decision, the Fifth Circuit held the District Court should not have granted relief. That means Buntion is likely to be executed, after a trial presided over by a judge who at the very least did not comport himself to the standards we expect from judges.

It is difficult to imagine how anyone could think Buntion received a fair trial. The court noted the judge's action should not be commended (duh!), but apparently they were not so far out of line to establish bias. You have to wonder what else would it take. I'm sure most people expect more from their judges. Thankfully, this is a rare situation. However, that does not excuse a refusal to act. I'm sure Mr. Buntion and his family are not comforted by the assurance that this is a rare occurrence

If we expect the public to have any confidence in our system of justice we have to be willing to take action when the system breaks down. Unfortunately, that didn't happen  here.

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Last night as I was driving to Austin I had the good fortune to listen to an interview on the The Catholic Channel with Rev. Carrol Pickett. Rev. Pickett was the minister at the Walls unit in Huntsville for 16 years, and during his time he was present at 95 executions. He would be the inmate from 6:00 a.m., until they were executed shortly after midnight. (now they do it at 6:00 so everyone doesn't have to stay up all night). After each execution, he recorded his thoughts on a recorder as a form of therapy. We all now  have the privilege of  listening to some of those recordings.

During the interview he made a statement that almost caused me to  have a wreck. Without any hesitation, he stated that he knows 15 of those 95 inmates that were executed were actually innocent!! That means that in our so called quest for justice, we have killed 15 people for no reason. As has been pointed out before, that also means 15 people have gotten away with murder - at least a few of those have probably gone on to commit other murders. I've discussed before the attempts to estimate the number of innocent people in prison. According to these numbers, its around 15%.

Rev. Pickett is the subject of an independent film, At the Death House Door, that debuts on May 29. If its anything close to  his interview, it should be fascinating.

When he started talking, I wasn't sure where he stood on the death penalty. He eventually made his position abundantly clear - he is absolutely opposed to it. He quoted on the inmates he counseled, who summed it up perfectly: "what sense does it make for the State to kill someone, to convince everyone else that its wrong to kill people?"

While his discussion of executing innocent people got my attention, that was not what struck me most about the interview. When he finished, my one thought was how fortunate those 95 men were to be able to spend their last hours on earth with him. He is truly a remarkable Christian man - someone that is able to Jesus in others, even those condemned to death.

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