Cause No.

1170853

STATE OF TEXAS § IN THE DISTRICT COURT OF

§
v. § HARRIS COUNTY, TEXAS,
§
JOHN E. GREEN § 177th JUDICIAL DISTRICT

AMENDED MOTION TO DECLARE ARTICLE 37.071,§ 2 OF THE

TEXAS CODE OF CRIMINAL PROCEDURE
UNCONSTITUTIONAL AS APPLIED

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW JOHN GREEN, by counsel, and respectfully requests that the Court

declare Article 37.071, § 2 of the Texas Code of Criminal Procedure unconstitutional as applied,

pursuant to the Eighth and Fourteenth Amendments of the United States Constitution, and

Article 1, Section 13 of the Texas Constitution. In support of this request, Mr. Green sets forth

the following:

I. INTRODUCTION

Article 37.071, § 2 of the Texas Code of Criminal Procedure [hereafter, “the Texas death

penalty statute”] is unconstitutional as applied because its application has created a substantial

risk that innocent people have been, and will be, convicted and executed. This risk has come

about because of the operation of at least fourteen factors which, cumulatively or in combination,

“would seem inevitably to enhance the risk of an unwarranted conviction,” Beck v. Alabama, 447

U.S. 625, 637 (1980), in individual cases. Five of these factors are special features of death

penalty cases that make such cases peculiarly vulnerable to the danger of convicting an innocent

person. The other nine factors, arising from Texas criminal procedure, exacerbate the risks of

wrongful conviction associated with the death-penalty-specific factors. These factors, in various
combinations, have led to the conviction and death sentencing of innocent people in Texas. The

case of Ernest Ray Willis, convicted and sentenced to death in Pecos County in 1987 – who was

granted a new trial in 2004 and whose charges were then dropped by the district attorney –

exemplifies such a case. Mr. Willis’ case also shows that people wrongfully convicted and

sentenced to death in Texas who are not executed, are spared not because the Texas system has a

safety net adequate to catch every such person, but rather, because of fortuitous factors: the extra

attention given to capital cases because of the stakes involved, the luck of having world-class

habeas corpus lawyers take one’s case, and a confession by the real killer. When the fortuities

that lead to the exoneration of every wrongfully convicted and condemned person are taken into

account along with the likely rate of wrongful conviction in capital cases, there is a very strong

probability that Texas has executed twelve or more innocent people. The protection against

cruel and unusual punishment afforded by the United States and Texas Constitutions cannot

tolerate a capital punishment process that gives rise to this kind of risk.

II. THE ISSUES THAT THE COURT HAS ASKED THE PARTIES TO ADDRESS

On March 26, 2010, this Court set out the issues to be addressed:

The issue or issues that must be addressed are, first, whether or not it is a violation
of due process to execute an innocent defendant; second, it must be determined
whether or not the State of Texas under 37.07(1) [sic] has, in fact, executed an
innocent person; and, finally, if they have executed an innocent person, does the
defendant … have a basis to raise a claim based on these facts.

Transcript of Hearing, March 26, 2010, State v. Green, No. 1170853, at 4.

Mr. Green addresses the first issue in the next section of his amended motion. He urges

the Court to recast the issue as one under the Eighth Amendment rather than the Due Process

Clause of the Fourteenth Amendment. Specifically, he argues that under the Eighth Amendment,

2
capital punishment schemes that create a “substantial risk” that innocent people are wrongfully

convicted and sentenced to death are constitutionally unacceptable. He acknowledges that the

Due Process Clause does not require the elimination of every possibility of convicting an

innocent person – and thus, may tolerate the execution of an innocent person – but he

distinguishes Due Process from Eighth Amendment jurisprudence which, at its core, is

concerned with whether there are systemic factors that put at substantial risk the reliability of

determinations of both guilt and innocence and the sentence in a capital trial.

In light of his response to the first issue, Mr. Green also urges the Court to recast the

second and third issues to follow from his recasting of the first issue:

The second issue becomes: whether there are sufficient risk factors inhering in the

application of Texas’ capital punishment statute that its application creates a constitutionally

unacceptable risk of convicting and sentencing an innocent person to death. Mr. Green addresses

this issue in section IV of the amended motion.

The third issue, finally, becomes: whether innocent people have been convicted and

sentenced to death in Texas, and if so, how this bears on Mr. Green’s claim that the Texas

system creates a constitutionally unacceptable risk of wrongfully convicting innocent people and

sentencing them to death. Mr. Green will address this issue in section V of the amended motion.

III. MR. GREEN STATES A CLAIM UNDER THE EIGHTH AMENDMENT

Addressing the holding of Furman v. Georgia, 408 U.S. 238 (1972), four years later in

Gregg v. Georgia, 428 U.S. 153, 188 (1976), the Supreme Court explained that in Furman it

held, under the Eighth Amendment, that the “death penalty could not be imposed under

sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and

3
capricious manner.” Gregg, 428 U.S. at 188 (paraphrasing Furman). Four years after Gregg,

the Court extended the safeguard against “substantial risk” to the determination of guilt or

innocence in a capital case. In Beck, 447 U.S. at 638, the Court explained, “To insure that the

death penalty is indeed imposed on the basis of ‘reason rather than caprice or emotion,’ we have

invalidated procedural rules that tended to diminish the reliability of the sentencing

determination. The same reasoning must apply to rules that diminish the reliability of the guilt

determination.” Id. (footnote omitted). Thus, the Court invalidated an Alabama rule that

precluded instruction on lesser included offenses in capital cases, because such a rule “would

seem inevitably to enhance the risk of an unwarranted conviction.” Id. at 637.

In the years that followed Gregg and Beck, the Court has continued to analyze the Eighth

Amendment’s prerequisite for capital punishment procedures as whether the procedure or factors

at issue give rise to a “substantial,” “unacceptable,” “significant,” or “intolerable” risk of an

unreliable outcome or infliction of harm. See, e.g., Baze v. Kentucky, 553 U.S. 35, 128 S.Ct.

1520, 1530-31 (2008) (holding that a procedure “subjecting individuals to a risk of future harm –

not simply actually inflicting pain – can qualify as cruel and unusual punishment” if the

procedure a creates a “substantial risk of serious harm” or an “objectively intolerable risk of

harm”); Booth v. Maryland, 482 U.S. 496, 502-03 (1987) (“[f]or the reasons stated below, we

find that [victim-impact] information is irrelevant to a capital sentencing decision, and that its

admission creates a constitutionally unacceptable risk that the jury may impose the death penalty

in an arbitrary and capricious manner”), rev’d by Payne v. Tennessee, 501 U.S. 808 (1991)

(finding victim-impact evidence is relevant to capital sentencing, without disturbing

“constitutionally unacceptable standard”); McCleskey v. Kemp, 481 U.S. 279, 313 (1987) (“we

hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias
4
affecting the Georgia capital sentencing process”); Turner v. Murray, 476 U.S. 28, 37 (1986)

(“[o]ur judgment in this case is that there was an unacceptable risk of racial prejudice infecting

the capital sentencing proceeding”).

The combined risks that we address in this pleading and will address at the upcoming

evidentiary hearing are “risk[s that] cannot be tolerated in a case in which [a] defendant’s life is

at stake.” Beck, 447 U.S. at 638. The risks that we discuss here are not mere ad hoc problems

that may or may not recur in Texas capital cases. They are factors that, in total or in

combination, affect every person facing capital charges in Texas who claims to be innocent. The

Supreme Court has explained that Furman and its progeny dealt with “major systemic defects” in

capital sentencing schemes. Pulley v. Harris, 465 U.S. 37, 54 (1984). The risks that we discuss

here are “major systemic defects” of equal concern. Based on the unique constellation of factors

at play in Texas, its system of capital punishment, as applied in the cases of people who assert

their innocence, as Mr. Green does, “enhances the risk of an unwarranted conviction,” and

diminishes the reliability of the death sentences it yields, Beck, 447 U.S. at 638, and thus,

violates the Eighth Amendment. Id.1

By contrast, Due Process analysis does not take into account the risk of wrongful

conviction and death sentencing and whether that risk is significant enough to be constitutionally

intolerable. In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court declined to hold that

the “execution of a person who is innocent of the crime for which he was convicted” amounts to

an independent violation of either the Eighth Amendment or the Due Process Clause. Id. at 398.
1
The argument in this motion does not posit that the death penalty is always unconstitutional, only that the
procedure in Texas is too unreliable to pass constitutional muster in cases like Mr. Green’s. By contrast, in Furman,
Justices Brennan and Marshall would have found the death penalty violated the Eighth Amendment per se. Furman,
408 U.S. at 257 (Brennan, J., concurring); id. at 314 (Marshall, J., concurring). In support of this position, Justice
Marshall cited, as one of many arguments, the risk of executing an innocent person. Id. at 366-388. Mr. Green is
relying on the same risk but is not arguing that the death penalty is unconstitutional per se as a result of that risk.
5
The Court noted that “[t]his proposition has an element of appeal, as would the similar

proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime

for which he was convicted....” Id. But the Court recognized that it had previously “observed

that ‘[d]ue process does not require that every conceivable step be taken, at whatever cost, to

eliminate the possibility of convicting an innocent person.’” Id. at 398-99 (quoting Patterson v.

New York, 432 U.S. 197, 208 (1977)).

Nowhere in Herrera did the Court address the cumulative effect of risk factors that make

the risk of wrongful conviction so high that the risk is unacceptable under the Eighth

Amendment. Herrera held only that the Constitution does not require the elimination of every

possibility of convicting an innocent person. It plainly did not hold that when the factors giving

rise to the risk of convicting an innocent person are so substantial that the risk violates the Eighth

Amendment’s requirement of reliability, there is no Constitutional remedy.

Accordingly, Mr. Green states a claim under the Eighth Amendment when he argues that

under the Eighth Amendment, the Texas capital punishment scheme creates a substantial and

constitutionally unacceptable risk that innocent people are wrongfully convicted and sentenced

to death.

IV. THERE ARE SUFFICIENT RISK FACTORS INHERING IN THE

APPLICATION OF TEXAS’ CAPITAL PUNISHMENT STATUTE THAT THE
STATUTE CREATES A CONSTITUTIONALLY UNACCEPTABLE RISK OF
CONVICTING AND SENTENCING AN INNOCENT PERSON TO DEATH

A. The number of exonerations in capital cases nationwide is steadily increasing

Nationally, since 1976, 138 people have been exonerated from state death rows, eleven of

whom are from Texas. See Affidavit of Richard Dieter, Executive Director, Death Penalty

6
Information Center.2 The Death Penalty Information Center tracks the number of people

exonerated from death row using the following criteria: the listed defendants must have been

convicted and sentenced to death, and thereafter: (a) their conviction was overturned, after

which they were acquitted at re-trial or all charges were dismissed by the state, or (b) they

received an absolute pardon by the governor based on new evidence of innocence.3 The Death

Penalty Information Center also tracks executions nationwide, and counts 1197 since 1976. See

http://deathpenaltyinfo.org/number-executions-state-and-region-1976 (as visited on March 14,

2010). Thus, in the modern era, for roughly every nine people executed, one person is

exonerated from death rows across the country.4

B. Exonerations demonstrate there is a risk that innocent people have been

executed, and that post-trial review cannot be trusted to catch all errors

While exoneration figures demonstrate that the criminal justice system sometimes works

to avoid a miscarriage of justice, they raise a strong inference that our imperfect system of

criminal justice has allowed innocent people to be executed. Indeed, Justice Sandra Day

O’Connor, noting the ninety exonerations from death row as of July, 2001, observed, “If

statistics are any indication, the system may well be allowing some innocent defendants to be

executed.” Brian Bakst, O'Connor Questions Death Penalty, Associated Press, July 2, 2001.

Justice O’Connor’s conclusion that innocent people have likely been executed recognized that

2
See also http://deathpenaltyinfo.org/innocence-and-death-penalty. Previously, the Death Penalty
Information Center list of exonerations included Timothy B. Hennis as one of 139 death-sentenced exonerees, but
his name was removed from the list last week after he was subsequently found guilty in a third trial. See John
Schwartz, In 3rd Trial, Conviction in Murders From 1985, N.Y. Times, April 8, 2010 (available at
http://www.nytimes.com/2010/04/09/us/09soldier.html). Counsel will submit an updated affidavit from Richard
Dieter.
3
These criteria mirror those used by experts who study wrongful convictions. See, e.g., Samuel R. Gross et
al., Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 524 (2006) (using
very similar criteria to count exonerations not limited to people sentenced to death).
4
The affidavit of Richard Dieter, numerous articles, reports and other references are included in the separate
exhibit volumes for the Court’s convenience.
7
when failures in the system abound, and they are as extraordinarily difficult to catch as they are,

not all mistakes will be caught.

The available literature echoes Justice O’Connor’s concern. As one academic study

noted, “[t]here is reason to fear that some executions counted as successes are actually

undiscovered failures – executions of defendants who were innocent, or did not commit a crime

for which the death penalty is allowed, but whom the courts inadvertently allowed to be

executed.” James S. Liebman, Jeffrey Fagan, et. al, A Broken System, Part II: Why There is So

Much Error in Capital Cases, and What Can be Done About It (2002) (available at

http://www2.law.columbia.edu/brokensystem2/sectionI.html#b) (as visited March 14, 2010).

Another commentator has observed that, “[g]iven the sheer serendipity of most of the

exonerations, the inescapable conclusion is that the number of wrongful convictions greatly

exceeds the number of exonerations.” Rob Warden, Reflections on Capital Punishment, 4 N.W.

J.L. & Soc. Pol’y 329, 335 (2009). Warden’s article proves the point by reviewing the

exonerations of six men from death row (each of whose cases is included in the Death Penalty

Information Center list cited above), in which luck alone meant the difference between a

person’s execution or liberty.

In 1985, Kirk Bloodsworth was sentenced to death for the rape and homicide of nine-year

old girl, based the testimony of five eyewitnesses. Id. at 335. He won a reversal of his sentence

on appeal, because the prosecutor had suppressed exculpatory evidence, but was convicted and

sentenced to life. An experienced death-penalty lawyer eventually entered the case, and moved

to “preserve the physical evidence, even though it had been examined earlier and no biological

material other than the victim’s had been detected.” Id. (emphasis supplied). More advanced

8
DNA testing yielded a semen spot, and “positively eliminated Bloodsworth as its source.” Id. at

336. Bloodsworth is now free.

In a second case, four members of a California motorcycle gang were wrongly convicted

and sentenced to death for murder at a motel in New Mexico. Id. The police relied on the

testimony of a motel maid, who said she witnessed the crime. The motorcycle gang members

were arrested in Oklahoma City, and presented alibi evidence at trial using receipts from gas

purchases made on a trip from Los Angeles to Oklahoma City, at the very time of the murder,

but were still convicted and sentenced to death. Id. The men likely would have been executed

but for the actual killer coming forward and confessing. Id. The real killer linked himself to the

crime with ballistics evidence coinciding with that found at the crime scene. Id. The hotel maid

eventually admitted that “she had fabricated her testimony at the behest of the police and, in

truth, that she had neither seen the bikers at the motel nor witnessed the murder.” Id. The men’s

convictions were vacated, the charges against them were dropped, and they were freed. Id. at

337.

Fifty hours away from his scheduled execution in Illinois, Anthony Porter was granted a

temporary reprieve because his competency to be executed was in doubt. Id. at 338. During the

interval created by this reprieve, a journalism class investigated the case, found the real killer,

and obtained a video-recorded confession from him. Id. Porter was freed. Id.

Drawing on lessons from these cases, Warden observed that the “probability of the

strokes of luck that saved [these men] is incalculable, but there is no room for doubt that for

every man so lucky there must be several who are not so lucky . . .” Id. The observations of a

noted academic researcher sum up the point concisely: “Any fair reading of the cases vindicating

death row inmates shows a common theme – most owe their freedom to Lady Luck.” Michael L.
9
Radelet, The Role of the Innocence Argument in Contemporary Death Penalty Debates, 41 Tex.

Tech L. Rev. 199, 203 (2008).5

C. State governors and legislatures, Supreme Court Justices, and American

Law Institute have acknowledged the risk of executing innocent people

Executive and legislative: Nearly a year ago, New Mexico became the second state in

two years to abolish the death penalty. In his remarks at the signing of this repeal, Governor Bill

Richardson, a long-time “believer in the death penalty,” stated that he signed the bill abolishing

the death penalty because the criminal justice system creates the risk that innocent people will be

convicted and executed and that risk is too great to continue to ignore:

Regardless of my personal opinion about the death penalty, I do not have

confidence in the criminal justice system as it currently operates to be the final
arbiter when it comes to who lives and who dies for their crime. If the State is
going to undertake this awesome responsibility, the system to impose this ultimate
penalty must be perfect and can never be wrong. But the reality is the system is
not perfect – far from it. The system is inherently defective. DNA testing has
proven that. Innocent people have been put on death row all across the country.
Even with advances in DNA and other forensic evidence technologies, we can’t
be 100-percent sure that only the truly guilty are convicted of capital crimes.
Evidence, including DNA evidence, can be manipulated. Prosecutors can still
abuse their powers. We cannot ensure competent defense counsel for all
defendants. The sad truth is the wrong person can still be convicted in this day
and age, and in cases where that conviction carries with it the ultimate sanction,
we must have ultimate confidence – I would say certitude – that the system is
without flaw or prejudice. Unfortunately, this is demonstrably not the case.

See http://www.governor.state.nm.us/press/2009/march/031809_02.pdf (as visited March

15, 2010) (emphasis added).

In 2007, New Jersey Governor John Corzine signed legislation repealing the death

penalty. See http://www.nytimes.com/2007/12/18/nyregion/18death.html (as visited on

5
Radelet’s article cites to a study by Samuel Gross showing that only “a fraction of the wrongly convicted
are exonerated.” Id. (Samuel R. Gross & Barbara O'Brien, Frequency and Predictors of False Conviction: Why We
Know So Little, and New Data on Capital Cases, 5 J. Empirical Legal Stud. 927 (2008)).
10
March 15, 2010); see also An Act to Eliminate the Death Penalty and Allow for Life

Imprisonment Without Eligibility for Parole, Pub. L. No. 2007, c. 204 §1 (codified at N.J.

Stat. Ann. §2C:11-3 (West Supp. 2008)). Governor Corzine acted on the

recommendation of a study commission created by New Jersey law, which included

clergymen, prosecutors, a former judge a police chief, and advocates for victims and

murder victims’ family members. See New Jersey Death Penalty Study Commission, 3

(2007) (available at http://www.njleg.state.nj.us/committees/dpsc_final.pdf ) (as visited

on March 15, 2010). The commission’s report recommended that the legislature abolish

the death penalty in New Jersey. Id. at 2. Among other findings, the commission

concluded, “[t]he penological interest in executing a small number of persons guilty of

murder is not sufficiently compelling to justify the risk of making an irreversible

mistake.” Id. at 1. The report discussed at length what it found to the unacceptable risk

of executing an innocent person. Id. at 51-55.

Maryland Governor Martin O’Malley wrote in a 2007 Washington Post opinion

piece that the death penalty “inherently necessitates the occasional taking of wrongly

convicted, innocent life....” See Opinion, “Why I Oppose the Death Penalty,”

Washington Post, Feb. 21, 2007 (available at http://www.washingtonpost.com/wp-

dyn/content/article/2007/02/20/AR2007022001292.html?referrer=emailarticle (as visited

on March 15, 2010). He asked Maryland lawmakers to repeal the state’s death penalty.

Id. He also established a commission to study the death penalty. The Maryland

Commission on Capital Punishment recommended the abolition of the death penalty in

the state. See Maryland Commission on Capital Punishment Final Report to the General

Assembly, Dec. 12, 2008, at 9 (available at http://www.goccp.maryland.gov/capital-

11
punishment/documents/death-penalty-commission-final-report.pdf). In making this

recommendation, a key concern of the commission was “the serious risk that innocent

persons will be executed.” Id. at 18, 70. See also id. at 61-81 (discussing problems

leading to wrongful death sentences, including the same problems addressed in these

pleadings).

The Maryland legislature did not wholly comply with Governor O’Malley’s

wishes, but it did pass legislation requiring a greater quality of evidence than required in

any death-penalty state in the Nation. Maryland’s new law bars the death penalty in the

absence of “(i) biological evidence or DNA evidence that links the defendant to the act

of murder; (ii) a videotaped, voluntary interrogation and confession of the defendant to

the murder; or (iii) a video recording that conclusively links the defendant to the

murder….” Maryland Code Crim. Law § 2-202 (a)(3); see also 2009 Maryland Laws Ch.

186 (S.B. 279) (establishing this procedure). This legislation is meant to minimize, if not

eliminate, the possibility of executing an innocent person.

In 2004, the New York Court of Appeals found that the New York capital-

sentencing statute contained a jury deadlock instruction that was unduly coercive, and

therefore ruled the statute unconstitutional. People v. LaValle, 817 N.E.2d. 341, 361

(N.Y. 2004). Legislative efforts to revive the death penalty by repairing this defect

failed. See Patrick D. Healy, “New York Assembly Democrats Close Off Death Penalty

for 2005,” N.Y. Times, April 13, 2005 (available at

http://www.nytimes.com/2005/04/13/nyregion/13death.html?_r=1&emc=eta1 (as visited

on March 15, 2010)). An assembly member interviewed for this story who voted against

these efforts pointed to the risk of executing an innocent person, “I just don’t know how
12
you explain that to a mother whose child is completely innocent and who is murdered by

the state for something they didn’t do.” Id. When the committee considering the

legislation voted on it, it had before it a report entitled, A report on five public hearings

on the death penalty in New York conducted by the Assembly standing committees on

Codes, Judiciary and Correction, December 15, 2004 - February 11, 2005. The report

did not take a position on the death penalty but, “objectively highlight[ed] the issues and

controversies that were presented and discussed at these extraordinary public hearings,”

Id. at 3. One of the issues the report highlighted was the risk of executing an innocent

person. Id. at 22-27.

In 2000, prompted by thirteen exonerations of inmates from Illinois’ death row

since 1977, then Illinois Governor George Ryan ordered a moratorium on executions and

an independent, bipartisan commission to determine the reforms necessary to ensure that

innocent people would not be executed in that state. Exec. Order No. 2000-4 (Ill. 2000).

The commission was ordered “[t]o study and review the administration of the capital

punishment process in Illinois to determine why that process has failed in the past,

resulting in the imposition of death sentences upon innocent people.” Id. In its report,

the “Commission was unanimous in the belief that no system, given human nature and

frailties, could ever be devised or constructed that would work perfectly and guarantee

absolutely that no innocent person is ever again sentenced to death.” Illinois Commission

on Capital Punishment 2002, at 39 (available at

http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/index.html (as visited on

March 15, 2010)).

13
 In 2003, concerned that reforms recommended by the commission had not been

passed by the legislature, Governor Ryan commuted all Illinois death sentences to prison

terms of life or less. Jodi Wilgoren, Governor Empties Illinois Death Row, N.Y. Times,

Jan. 12, 2003 (available at

http://www.nytimes.com/2003/01/12/national/12DEAT.html?pagewanted=1 (as visited

on March 15, 2010)). He explained, “[t]he facts that I have seen in reviewing each and

every one of these [death-penalty] cases raise[s] questions ... about the innocence of

people on death row ...” whose sentences were obtained under a “... capital system []

haunted by the demon of error: error in determining guilt and error in determining who

among the guilty deserves to die.” Id.

Judicial: Justice O’Connor has not been the only Supreme Court justice to register

concerns about the executions of innocent people. In a now famous opinion, Justice Harry

Blackmun reflected on his twenty years hearing death-penalty cases on the Supreme Court. See

Callins v. Collins, 510 U.S. 1141, 1142-43(1994) (dissenting to denial of certiorari). He wrote,

“[e]ven the most sophisticated death penalty schemes are unable to prevent human error from

condemning the innocent.” Id. at 1159 n. 8. Thus, Justice Blackmun concluded, “innocent

persons have been executed . . . .” Id.

In Kansas v. Marsh, 548 U.S. 163, 207-11 (2006), Justice David Souter wrote a

dissenting opinion, joined by Justices Stevens, Ginsburg, and Breyer, in which he explained that

the growing awareness of wrongful convictions of death row inmates must be accounted for in

analyzing the Eighth Amendment’s requirement of greater reliability in capital cases. Justice

Souter observed that “the period starting in 1989 has seen repeated exonerations of convicts

under death sentences, in numbers never imagined before the development of DNA tests.” Id. at
14
207-208 (Souter, J., dissenting). He then explained that his concerns stemmed from the

exonerations in Illinois and academic literature demonstrating the phenomenon of wrongful

convictions of death-row inmates:

A few numbers from a growing literature will give a sense of the reality that must
be addressed. When the Governor of Illinois imposed a moratorium on
executions in 2000, 13 prisoners under death sentences had been released since
1977 after a number of them were shown to be innocent, as described in a report
which used their examples to illustrate a theme common to all 13, of “relatively
little solid evidence connecting the charged defendants to the crimes.” State of
Illinois, G. Ryan, Governor, Report of the Governor's Commission on Capital
Punishment: Recommendations Only 7 (Apr.2002) (hereinafter Report); see also
id., at 5-6, 7-9. During the same period, 12 condemned convicts had been
executed. Subsequently the Governor determined that four more death row
inmates were innocent. See id., at 5-6; Warden, Illinois Death Penalty Reform, 95
J.Crim. L. & C. 381, 382, and n. 6 (2005). Illinois had thus wrongly convicted
and condemned even more capital defendants than it had executed, but it may
well not have been otherwise unique; one recent study reports that between 1989
and 2003, 74 American prisoners condemned to death were exonerated, Gross,
Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989
Through 2003, 95 J.Crim. L. & C. 523, 531 (2006) (hereinafter Gross), many of
them cleared by DNA evidence, ibid. Another report states that “more than 110”
death row prisoners have been released since 1973 upon findings that they were
innocent of the crimes charged, and “[h]undreds of additional wrongful
convictions in potentially capital cases have been documented over the past
century.” Lanier & Acker, Capital Punishment, the Moratorium Movement, and
Empirical Questions, 10 Psychology, Public Policy & Law 577, 593 (2004).
Most of these wrongful convictions and sentences resulted from eyewitness
misidentification, false confession, and (most frequently) perjury, Gross 544, 551-
552, and the total shows that among all prosecutions homicide cases suffer an
unusually high incidence of false conviction, id., at 532, 552, probably owing to
the combined difficulty of investigating without help from the victim, intense
pressure to get convictions in homicide cases, and the corresponding incentive for
the guilty to frame the innocent, id., at 532.

Marsh, 548 U.S. at 208-10 (Souter, J., dissenting). Justice Souter concluded “[w]e are thus in a

period of new empirical argument about how ‘death is different’: not only would these false

verdicts defy correction after the fatal moment, the Illinois experience shows them to be

remarkable in number, and they are probably disproportionately high in capital cases.” Id. at 210.

15
 In Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520 (2008), Justice Stevens expressed his view

in a concurring opinion that he now believes the death penalty is unconstitutional, in significant

part because of the risk of wrongful conviction:

[G]iven the real risk of error in this class of cases, the irrevocable nature of the
consequences is of decisive importance to me. Whether or not any innocent
defendants have actually been executed, abundant evidence accumulated in recent
years has resulted in the exoneration of an unacceptable number of defendants
found guilty of capital offenses. See Garrett, Judging Innocence, 108 Colum.
L.Rev. 55 (2008); Risinger, Innocents Convicted: An Empirically Justified
Factual Wrongful Conviction Rate, 97 J.Crim. L. & C. 761 (2007). The risk of
executing innocent defendants can be entirely eliminated by treating any penalty
more severe than life imprisonment without the possibility of parole as
constitutionally excessive.

128 S.Ct. at 1551.

Finally, many courts allow the accused to present to the sentencing jury at a capital trial

evidence of “lingering” or “residual” doubt, as a basis for not imposing a sentence of death.6

Underlying the recognition that the presentation of such evidence and argument provides

effective assistance is the Supreme Court’s view that such a strategy “has been recognized as an

extremely effective argument for defendants in capital cases.” Lockhart v. McCree, 476 U.S.

162, 181(1986) (internal quotation omitted). The reason, of course, is that everyone is reluctant

to sentence a person to death who may be innocent.

6 See Ward v. Hall, __F.3d __ 2010 WL 6761, 19 (11th Cir. 2010) (finding pursuit of residual doubt

defense effective trial strategy); Williams v. Woodford, 384 F.3d 567, 624 (9th Cir. 2004) (same); Scott v. Mitchell,
209 F.3d 854, 882 (6th Cir. 2000) (same); Smith v. Gibson, 197 F.3d 454, 462 (10th Cir. 1999) (same); Moore v.
Johnson, 194 F.3d 586, 618 (5th Cir. 1999) (same); Kokoraleis v. Gilmore, 131 F.3d 692, 697 (7th Cir. 1997)
(same); United States v. Davis, 132 F. Supp. 2d 455, 468 (E.D. La. 2001); United States v. Honken, 378 F. Supp. 2d
1040, 1041 (N.D. Iowa 2004); People v. Page, 186 P.3d 395, 432 (Cal. 2008); State v. Webb, 680 A.2d 147, 189
(Conn. 1996) (same); Barnes v. State, 496 S.E.2d 674, 688 (Ga. 1998); Com. v. Meadows, 787 A.2d 312, 321 (Pa.
2001) (same); State v. Hartman, 42 S.W.3d 44 (Tenn. 2001).

16
 American Law Institute: Significantly, the American Law Institute (“the Institute”) has

withdrawn its death-penalty section of the Model Penal Code – the model for many states’

capital-sentencing statutes – due in part to concerns that current capital-sentencing practices lead

to the execution of innocent people. As described by the Institute’s President Emeritus Michael

Traynor, the Institute concluded that “we cannot devise a death penalty system that will ensure

fairness in process or outcome, or even that innocent people will not be executed.” Michael

Traynor, Opinion: The death penalty – it’s unworkable, L.A. Times, Feb. 10, 2010 (available at

http://www.latimes.com/news/opinion/la-oe-traynor4-2010feb04,0,4779581.story?track=rss (as

visited on March 13, 2010)).

The Institute’s decision shatters the intellectual underpinnings of modern death-penalty

statutes. The Institute has a membership of more than 4,000 lawyers, judges and law professors

of the highest qualifications, and is the leading independent organization in the United States

producing scholarly work to clarify and improve the law. See

http://207.103.74.123/index.cfm?fuseaction=about.overview (as visited on March 12, 2010). In

1962, it promulgated § 210.6 of the Model Penal Code. After Furman invalidated capital-

sentencing statutes nationwide, many states modeled their revised statutes on § 210.6. In Gregg

and its companion cases, the Court relied on the prestige of the Model Penal Code – particularly

its recommendation of guided discretion – and upheld statutes from Georgia, Florida, and

Texas.7

7
See Gregg, 428 U.S. at 193 (quoting Model Penal Code drafters’ statement that “‘it is within the realm of
possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed
against each other when they are presented in a concrete case . . . ’”) (quoting ALI, Model Penal Code § 201.6,
Comment 3, p. 71 (Tent. Draft No. 9, 1959)); Proffitt v. Florida, 428 U.S. 242, 247-48 (1976) (opinion of Stewart,
Powell, and Stevens, JJ.) (describing Florida statute as “patterned in large part on the Model Penal Code”); Jurek v.
Texas, 428 U.S. 262, 270 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (citing Model Penal Code to support
17
 On April 16, 2009, the Council of the American Law Institute submitted a report to the

general membership “on the matter of the death penalty.” See

http://www.deathpenaltyinfo.org/documents/alicoun.pdf (as visited on March 13, 2010). The

report recommended that the ALI membership withdraw § 210.6 of the Model Penal Code. Id. at

6.

This recommendation was based on the Council’s “doubt whether the capital-punishment

regimes in place in three-fourths of the states, or in any form likely to be implemented in the near

future, meet or are likely ever to meet basic concerns of fairness in process and outcome.” Id. at

5. One of the bases for this doubt was the “the likelihood, especially given the availability and

reliability of DNA testing, that some persons sentenced to death will later, and perhaps too late,

be shown to not have committed the crime for which they were sentenced....” Id. The report

relied heavily on a report the Institute commissioned by Professor Jordan Steiker and Professor

Carol Steiker (annexed to the ALI report cited above). The Steiker report found “[m]ost

disturbing ... the evidence of numerous wrongful convictions of the innocent, many of whom

were only fortuitously exonerated before execution, and the continuing concern about the

likelihood of similar miscarriages of justice in the future.” Steiker Report at 3. Among several

problems the Steiker report discusses, it devotes an entire section to a discussion of the

“erroneous conviction of the innocent,” which tracks the same problems identified in these

pleadings which lead to a special risk of executing innocent people in Texas. See Steiker Report

at 37-39.

its conclusion that the narrowing of capital murder in the Texas statute serves much the same purpose as the use of
aggravating factors in Florida and Georgia).
18
 Following the submission of these reports, on May 19, 2009, the Institute’s membership

approved the following motion by a show of hands:

That, for reasons stated in Part V of the Council’s report to the membership, the
Institute withdraws Section 210.6 of the Model Penal Code in light of the current
intractable institutional and structural obstacles to ensuring a minimally adequate
system for administering capital punishment.

http://www.ali.org/index.cfm?fuseaction=meetings.annual_updates_09 (as visited on March 13,

2010).

In sum, various state executives and legislators, Supreme Court justices, academic

studies, as well as the American Law Institute have recognized that existing systems of capital

punishment allow for a risk of executing an innocent person. And many of these have found that

risk too substantial to warrant the continued imposition of capital punishment. This Court may

rationally infer from these findings that the risk of executing an innocent person in this Nation is

genuine.

D. Five factors that produce a risk of wrongful conviction are peculiar to capital
cases

Five of the factors that give rise to a risk of wrongful conviction are unique to, or

manifest themselves uniquely in, capital murder cases. These are: crime “clearance” rates and

pressure on the police, publicity, death qualification of prospective jurors, fear of the death

penalty in defendants and their defense teams, and the tendency of capital juries to consider

punishment prior to determining guilt.

i. Crime clearance rates and pressure on the police

Most crimes are never solved. As Professor Samuel Gross explains in The Risks of

Death: Why Erroneous Convictions Are Common in Capital Cases, 44 Buff. L. Rev. 469 (1996),

19
 In 1993, a mere 21% of all serious crimes known to the police were “cleared” –
which usually means that a suspect was arrested; of serious violent crimes, 44%
were cleared. But even these low figures only tell half the story. Most crimes are
not “known to the police” – in 1993, only 35% of all crimes, and 42% of crimes
of violence, were reported. In other words, only about 18% of all crimes of
violence are solved by the police, including about 13% of robberies, 18% of
rapes, and 6% of burglaries.

Id. at 476 (footnotes omitted). In this respect, “[h]omicides are different.” Id. As Gross

explains,

First, almost every homicide is reported to the police when the body of the
deceased person is found….

Second, most homicides known to the police are cleared – 66% in 1993, more in
previous years. Overall, the proportion of all homicides that are solved is about
four times higher than the comparable proportion for other violent crimes.

Id. at 476-77 (footnotes omitted).

The much higher clearance rate for homicides than non-homicide crime is a product of

the greater pressure to solve homicides:

The relatives of the victim care more, the prosecutor cares more, the public is
much more likely to be concerned, and the police themselves care more. Death
produces strong reactions – in this context, a desire to punish and to protect. Other
outrageous crimes can have the same effect – kidnappings, for example, or serial
rapes – but they are rare. Homicide is common.

Id. at 477-78. This increased pressure often leads to more time and resources being devoted to

investigation, more sustained effort, and more success in arresting the actual criminal. Id. at 478.

However,

that same pressure can also produce mistakes. If the murder cannot be readily
solved, the police may be tempted to cut corners, to jump to conclusions, and – if
they believe they have the killer – perhaps to manufacture evidence to clinch the
case. The danger that the investigators will go too far is magnified to the extent
that the killing is brutal and horrifying, and to the extent that it attracts public
attention – factors which also increase the likelihood that the murder will be
treated as a capital case.

20
Id.

Accordingly, the pressure to make an arrest and get a conviction is much greater in a

capital case, and this very pressure increases the risk that the police will charge and build a case

to convict the wrong person.

ii. Publicity

Professor Gross explains how the publicity often associated with a capital case can

increase the risk of wrongful conviction:

Most crimes, even most homicides, receive very little attention from the media. A
few crimes, however, are heavily publicized. Many, perhaps most of these
notorious crimes are homicides, and especially the unusual and heinous homicides
which are likely to be charged as capital crimes. In those cases, most jurors will
have heard all sorts of things about the case before they got to court, many of
them inadmissible, misleading and inflammatory. They may have seen or heard
or read police officers or other government officials declare the defendant guilty.
They may have witnessed or felt a general sense of communal outrage. All this
will make them more likely to convict. Courts may attempt to mitigate the impact
of pre-trial publicity by various means – most effectively by changing the location
of the trial – or they refuse to do so. As a result, the records of erroneous
convictions include scores of cases in which publicity and public outrage clearly
contributed to the error – from the convictions of Leo Frank in 1913 and the
Scottsboro Boys in 1931, to the conviction of Rolando Cruz and Alejandro
Hernandez in 1985.

Id. at 494 (footnotes omitted).

iii. Death qualification of prospective jurors

The jury selection process in a capital case permits the exclusion for cause of any juror

whose “views would ‘prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.’” Wainwright v. Witt, 469 U.S. 412, 424 (1985).

Pursuant to this principle and its previous articulation in Witherspoon v. Illinois, 391 U.S. 510

(1968), prospective capital jurors have long been subjected to a “death qualification” process – a

21
probing of their views on capital punishment and whether they could consider imposing the

death penalty.

Study after study has shown that death-qualification makes juries more conviction-prone,

more death-prone, less representative, and less accurate in finding facts. In The Principled

Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation, 38 Ariz. St. L.J. 769

(2006), Professor Susan Rozelle reviewed a number of these studies that took place over nearly a

fifty-year period, including the following:

● Zeisel, “Some Insights into the Operation of Criminal Juries” (1957): Death-

qualified jurors are “necessarily” biased in favor of conviction, too readily ignore the

presumption of the defendant’s innocence and accept the prosecution’s version of the facts.

Zeisel’s study was cited by the petitioner in Witherspoon v. Illinois, 391 U.S. 510, but the Court

called the data “too tentative and fragmentary” to serve as the basis for constitutional judgment.

38 Ariz. St. L. J. at 776.

● Welsh S. White (1973): Excluding jurors who oppose the death penalty strips

nearly a quarter of prospective jurors from the pool, and that “the near quarter in question” come

disproportionately from the ranks of blacks and women. Welsh also showed that jurors who

survived the death-qualification process were more likely to harbor pro-prosecution beliefs, such

as: “If the police have arrested an individual and the district attorney has brought him to trial,

there is good reason to believe that the man on trial is guilty,” and “If the person on trial does not

testify at his trial, there is good reason to believe that he is concealing guilt.” 38 Ariz. St. L. J. at

779.

22
 ● Capital Jury Project (1990 to the present): The Capital Jury Project (CJP)8 was

founded largely in response to the decision in Lockhart v. McCree, supra, in which the Supreme

Court expressed three points of dissatisfaction with prior studies done on the subject of death

qualification: (1) the failure to use actual jurors, (2) the failure to allow for the group-dynamic of

jury deliberation, and (3) the failure to account for the presence of nullifiers in the sample

population, as opposed to the lack thereof on a real jury. After carefully controlling for each of

the Lockhart Court’s concerns, the CJP data nonetheless confirms what Professor Zeisel’s study

showed in the 1950s: “the death qualification process today still seats juries uncommonly willing

to find guilt, and uncommonly willing to mete out death.” 38 Ariz. St. L. J. at 784-85.9

8
The Capital Jury Project was created in 1990, with funding from the Law and Social Sciences Program of
the National Science Foundation. The CJP researches the decision-making of actual capital jurors. The CJP’s
interviews chronicle the jurors’ experiences and decision-making over the course of the trial, identify points at
which various influences come into play, and reveal the ways in which jurors reach their final sentencing decisions.

The CJP began in eight states and has grown to a total of fourteen states. The principles and conclusions
drawn from the CJP are universal in that they show how a juror thinks and makes decisions. The fact that the juror
may have sat in a court’s deliberation room in Texas, or Alabama or Florida is of no moment to whether capital
jurors understand or fail to understand the fundamental principles of capital jurisprudence. States were chosen for
the CJP research to reflect the principal variations in guided discretion capital statutes. Within each state, 20 to 30
capital trials were picked to represent both life and death sentencing outcomes. From each trial, a target sample of
four jurors was systematically selected for in-depth three to four-hour personal interviews. Interviewing began in
the summer of 1991. The present CJP working sample includes 1,201 jurors from 354 capital trials in 14 states.
These 14 states are responsible for 76.1% of the 3,718 persons on death row as of June 1, 2002, and for 79.0% of the
795 persons who were executed between 1977 and September 1, 2002.

Since 1993, some 30 articles presenting and discussing the findings of the CJP have been published in
scholarly journals. See the Capital Jury Project Website at http://www.albany.edu/scj/CJPpubs.htm for an updated
listing of CJP related articles, commentaries, and doctoral dissertations.
9
See also William C. Thompson, et al., Death Penalty Attitudes Toward Conviction Proneness: The
Translation of Attitudes into Verdicts, 8 Law & Hum. Behav. 95 (1984), where the researchers found that death-
qualified jurors:

• tend to express more concern about crime, more favorable attitudes toward police and prosecutors, less
sympathy for criminal defendants, more suspicion of defense attorneys, and greater impatience with due
process safeguards in criminal trials, id. at 97,

• that death-qualified jurors have a lower threshold of conviction, id. at 98, and

23
 Rozelle also discusses the phenomenon of “group think” and the danger that death-

qualification results in a too-homogenous jury. Id. at 781. As she explains,

The benefit of a jury composed of people from diverse backgrounds is that the
chances for a full discussion of all possible explanations increase. With a
homogenous jury, whichever explanation seems most intuitively likely to one will
seem most intuitively likely to all, and the alternative – even if the alternative is
the accurate explanation – may never even be considered, simply because no
jurors were able to see it as a real possibility.

Id.

Studies of death qualification have also identified another risk of wrongful conviction:

the biasing effect the process of death qualification itself has on the jurors who survive the

qualification process. In The Biasing Effect of the Death-Qualification Process, 8 Law and

Human Behavior, 121 (1984), Professor Craig Haney conducted a now-famous study, in which

he had a group of jury eligible citizens of California view videotapes of a voir dire in a supposed

murder trial. Id. at 124. Half of the study participants watched a voir dire that included a thirty-

minute segment of death qualification, and the other half watched a voir dire that included no

death qualification. Id. at 124-25. After watching the videotapes, all participants completed a

questionnaire asking them about the trial. Id. at 125. Results of the study showed that

participants who watched death qualification were more likely to predict that the defendant

would be convicted of first-degree murder and receive the death penalty, more likely to predict

that the prosecutor, defense attorney, and judge believed the defendant to be guilty, and more

likely to predict that the prosecutor and judge had attitudes that favored the death penalty. Id. at

126.

• that death-qualified jurors evaluated evidence in a way markedly more favorable to the prosecution than did
excludable jurors. Id. at 103.

24
 Haney offered a series of explanations for these results. First, death qualification may

imply that trial participants believe that the death penalty is a warranted or appropriate

punishment because this is a “death penalty case.” Id. at 129. This label implies that the crime

was among the very worst committed. Id. Second, by requiring the attorneys and the judge to

dwell on the penalty at the very start of the trial, the death qualification process implies a belief

in the guilt of the defendant on the part of major trial participants. Id. Third, death qualification

may desensitize jurors to conviction in a capital case and to the imposition of the death penalty.

Id. at 130. Fourth, the disqualification of those potential jurors who oppose capital punishment

likely represents an expression of disapproval on the part of the judge and the law toward death

penalty opposition. Id. Fifth, death qualification requires jurors to take a public stand affirming

their commitment to consider imposing the death penalty. Id. Psychologists have indicated that

active, public advocacy of a position intensifies one’s belief in it. Id.

Haney’s research concludes that persons exposed to death qualification are not “a panel

of impartial, indifferent jurors,” id. at 132, and that the imbalance results not just from the

composition of death-qualified juries, but also from the biasing effects of the process by which

they are selected. Id.

Accordingly, the consequences of death qualification are (1) that too many of the

prospective jurors who are qualified are likely to accept the prosecution’s case for guilt

uncritically and to join in with other, like-minded jurors in reaching conclusions favoring the

prosecution’s case, and (2) that the process of death qualification itself biases jurors toward

conviction because of the singular emphasis on the penalty. Death qualification thus increases

the risk not only of conviction, but of a wrongful conviction, because it weeds out jurors who are

25
more likely to view the prosecution’s case critically and it conditions jurors to think of the case

as one in which guilt has already been established.

iv. Fear of the death penalty in defendants and their defense team

Professor Gross explains how fear of the death penalty in defendants and their defense

teams increases the risk of wrongful conviction:

In a capital case, avoiding execution can become the overriding imperative for the
defense. In extreme cases, fear of death drives innocent defendants to plead
guilty in return for a lesser sentence, even life imprisonment. If the defendant
does not plead guilty, either because no plea bargain is offered or because he was
unwilling to take it, the same pressure will be felt at trial. It may drive the
defense to make tactical choices that compromise its position on guilt in order to
improve the odds on penalty; in some cases, the defense may virtually concede
guilt and focus entirely on punishment. It will certainly distract the defense from
the issue of guilt and force it to spread its resources more thinly. This distraction
might increase the chances of conviction even for those capital defendants who
are represented by skillful lawyers with adequate resources; it will be far more
damaging for the many capital defendants whose defense is shamefully
inadequate.

The Risks of Death, supra, 44 Buff. L. Rev. at 495 (footnote omitted).

v. The tendency of capital juries to consider punishment prior to

determining guilt

In Jurors’ Predispositions, Guilt-Trial Experience, and Premature Decision Making, 83

Cornell L. Rev. 1476 (1998), Professor William Bowers and his colleagues in the Capital Jury

Project report findings concerning interviews with jurors about decision making in the guilt-

innocence phase of capital trials. They found that

[t]he most surprising and disturbing finding is the extent to which jurors discussed
the legally irrelevant and likely confounding matter of the defendant's punishment
during their determination of guilt. Three to four of every ten jurors (33.6% to
45.7%) indicated that what the defendant's punishment could be, would be, or
should be was discussed during guilt deliberations. This discussion explicitly
includes talk of whether the defendant should or would get the death penalty and
of what the punishment would be if the jury convicted the defendant of less than
capital murder.
26
Id. at 1519 (footnotes omitted). A critical consequence of this premature discussion of

punishment during deliberations on guilt-innocence is that the integrity of both the guilt-

innocence and penalty verdicts is compromised. As Bowers and his colleagues explain,

[f]or some jurors, guilt deliberations became the place for negotiating or for
forcing a trade off between guilt and punishment. One or more jurors with some
doubts, possibly reasonable doubts, about a capital murder verdict nevertheless
may have agreed to vote guilty of capital murder in exchange for an agreement
with pro-death jurors to abandon the death penalty. However reluctantly, in this
way, both sides would have avoided the stigma of being a hung jury on either
guilt or punishment. Furthermore, this compromise forfeits the punishment
decision to guilt considerations; perhaps less obviously, it also contaminates the
guilt decision with punishment concerns and thereby nullifies a lesser guilt
verdict[.]

Id. at 1527 (footnotes omitted) (emphasis supplied).

Not only does the nature of the punishment distort the jury’s guilt-innocence

deliberations, the perceived heinousness of the crime often pushes jurors to resolve any doubt

about guilt in favor of a guilty verdict. As Professor Gross observes,

[i]n theory, jurors are supposed to separate their decision on the defendant’s guilt
from their reaction to the heinousness of his conduct: If the evidence is
insufficient, they should be just as willing to acquit a serial murderer as a
shoplifter. Nobody believes this. Even in civil trials, where the jury is asked to
decide cases by a preponderance of the evidence, there are indications that juries
(and judges) are more likely to find defendants liable, on identical evidence, as
the harm to the plaintiff increases. In criminal trials the problem is worse, since
the burden of persuasion is proof beyond a reasonable doubt. In a close criminal
case the jury is supposed to release a defendant who is in their opinion, probably
guilty. This is a distasteful task under any circumstances, but it becomes
increasingly unpalatable – and unlikely – as we move up the scale from non-
violent crime, to violent crime, to homicide, to aggravated grisly murder.

The Risks of Death, supra, 44 Buff. L. Rev. at 495-96 (footnote omitted).

Accordingly, the conflation of punishment concerns and assessment of the evidence of

guilt in capital jury deliberation creates a risk that innocent people may be wrongfully convicted.

27
The critical, dispassionate assessment of the evidence of guilt can often be compromised by the

jurors’ reaction to the crime and the belief that the crime deserves the most severe punishment.

E. Seven factors based in Texas’ criminal procedure exacerbate the risks of

wrongful conviction created by the risk factors peculiar to capital cases

Seven additional factors exacerbate the risk of wrongful conviction already created by the

five risk factors peculiar to capital cases. Some of these factors are present in every case; others

are present only when the prosecution’s case is built on certain kinds of evidence. All, when

present in a case, magnify the risk of wrongful conviction that already inheres in every capital

case.

i. Inadequate compensation of jurors results in jury pools that are not

representative of a fair cross section of the community, diminishing the
protection afforded by the jury against overzealous prosecution

In Duncan v. Louisiana, 391 U.S. 145 (1968), the Supreme Court explained that the

purpose of trial by jury is to prevent oppression by the Government by providing a “safeguard

against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric

judge.” Id. at 156. “Given this purpose, the essential feature of a jury obviously lies in the

interposition between the accused and his accuser of the commonsense judgment of a group of

laymen....” Williams v. Florida, 399 U.S. 78, 100 (1970). “As we said in Williams, a jury will

come to such a judgment as long as it consists of a group of laymen representative of a cross

section of the community who have the duty and the opportunity to deliberate, free from outside

attempts at intimidation, on the question of a defendant's guilt.” Apodaca v. Oregon, 406 U.S.

404, 410-11 (1972).

The essence of the right to a jury – “the [commonsense] judgment … of a group of

laymen representative of a cross section of the community,” id. at 410 – is compromised in

28
Texas by the grossly inadequate compensation provided for jury service. Jurors in Harris County

receive a “wage” of $6 per day for the first day of jury service and $40 thereafter. That is, at

best, $5 an hour if the jurors spend only eight hours a day on the job. Capital cases often go on

for much longer than eight hours a day – at ten hours a day, their wage is $4 an hour. This does

not even provide jurors with the minimum wage of $7.25 per hour. See 29 U.S.C. § 206(a)(1).

The result is that cognizable groups of potential jurors participate far less in juries across

the state than their proportion in the eligible population. Studies of jury pools in Dallas and

Harris Counties reveal the following:

Latinos comprise approximately 30 percent of the adult citizen populations of

Dallas and Harris counties, according to demographic experts. However,
Hispanics comprised between six and 12 percent of the jury venires in Dallas
County and between nine and 14 percent of the jury venires in Harris County.
The research shows a similar disparity between the percentages of young adults
(18-34) and lower-income employees living in the two jurisdictions and the
percentages of those two groups participating in the jury system.

Rob Walters, Michael Marin, & Mark Curriden, Are We Getting a Jury of Our Peers?,” 68 Tex.

B. J. 144, 145 (Feb. 2005) (emphasis supplied).

Another study finding the same disproportionate under-representation of these three

groups of people “revealed that the biggest reason most people do not show up for jury service is

that they cannot afford to go. The study found that Latinos were four times less likely than

whites to be paid by their employer for taking time off from work to perform their civic duty.”

Id. (referring to a study by The Dallas Morning News and Southern Methodist Law Review).

“Adding to the problem is the fact that Texas law sets juror pay at $6 a day, which is the lowest

in the nation….” Id. As the supervising faculty member of the joint newspaper/law review

study explained, “‘We have made jury service financially onerous for the very people who can

least afford it[.]… It is literally true that we have certain segments of our society who have to
29
make a choice: Do they fulfill their constitutional obligation to be a juror or do they go to work

so they can barely make enough money to pay the rent and feed their children?’” Id. at 145-46.

The result is that juries in Texas, particularly in Harris County, have no chance of being

composed of a cross-section of the community. That cross-section – the critical ingredient for

juries to make the commonsense judgment that protects accused people from overzealous or

mistaken prosecution – is missing in trial after trial in Harris County. In the very cases that need

that judgment the most, capital cases where risk factors for wrongful conviction inhere in the

very nature of the case, the safeguard that could facilitate a more critical assessment of the

prosecution’s case, that could encourage jurors to focus on the actual evidence of guilt instead of

the horror of the crime, and that could lead to a lively debate about the evidence, is missing.

Instead of being a safeguard against wrongful conviction based on the diversity that comes from

a fair cross-section of the community, non-representative juries in Harris County add to the risk

of wrongful conviction.

ii. Eyewitness identification testimony is introduced which has not been

obtained through the use of safeguards established to reduce the risk of
mistaken identification

Mistaken eyewitness identification is well-documented as the leading cause of wrongful

convictions in the United States as well as in Texas. More than 75% of those individuals

exonerated based on post-conviction DNA testing were convicted based on faulty eyewitness

identifications. The Justice Project, Eyewitness Identification, A Policy Review, available at

www.thejusticeproject.org. In addition, the Center on Wrongful Convictions at Northwestern

University School of Law studied the cases of 86 defendants who had been sentenced to death

but legally exonerated based on strong claims of actual innocence, finding that eyewitness

30
testimony played a role in the convictions of 54% of the death-sentenced defendants. Indeed,

eyewitness testimony was the only evidence used against 38 percent of the defendants. Id.

As more cases with incorrect identifications have surfaced, together with a groundswell

of research documenting the scientific fragility of identifications, increased attention has been

given to the safeguards – or lack thereof – in eyewitness identification procedures. Research has

revealed that relatively minor and inexpensive changes in eyewitness identification protocol can

have a dramatic impact on the accuracy of the identification. Texas, however, has not adopted

any of the procedures that would allow for more reliability in eyewitness identification.

In the wake of heightened awareness of the problems with and possible solutions to

erroneous eyewitness identifications, in October 1999, the Department of Justice released a

comprehensive guide for law enforcement on procedures for obtaining more accurate eyewitness

evidence.10 Likewise, in the late nineties, the National Institute of Justice also took note of the

high rate of eyewitness misidentification in the cases of individuals exonerated by DNA testing

and developed recommendations for improved procedures. However, there has been no mandate

to law enforcement to follow the recommendations of either the DOJ or the NIJ.

There is clear consensus in the scientific community regarding procedural best practices

that would better protect against inaccurate identifications.11 These practices would improve the

10
Technical Working Group for Eyewitness Evidence, Nat’l Inst. of Justice, U.S. Dep’t of Justice,
Eyewitness Evidence: A Guide for Law Enforcement (1999), http://www.ojp.usdoj.gov/nij/pubs-sum/178240.htm.
11
See, e.g., Bradfield, A.L., G.L. Wells, and E.A. Olson, The Damaging Effect of Confirming Feedback on
the Relation between Eyewitness Certainty and Identification Accuracy, Journal of Applied Psychology 87 (2002);
Gross, S.R., K. Jacoby, D.J. Matheson, N. Montgomery, and S. Patil, Exonerations in the United States, 1989
Through 2003, 95 The Journal of Criminal Law & Criminology 95 (2005); Klobuchar, A., and H.L. Caligiuri,
Protecting the Innocent/Convicting the Guilty: Hennepin County’s Pilot Project in Blind Sequential Eyewitness
Identification, William Mitchell Law Review 32 (2005), Klobuchar, A., N.K.M. Steblay, and H.L. Caligiuri,
Improving Eyewitness Identifications: Hennepin County's Blind Sequential Lineup Pilot Project, Cardozo Public
Law, Policy & Ethics Journal 4 (2006) available at
http://web.augsburg.edu/~steblay/Improving_Eyewitness_Identifications.pdf, Malpass, R.S., A Policy Evaluation of
31
chances that the true perpetrator would be punished and better protect the innocent from being

accused and convicted of crimes they did not commit. These practices have been endorsed by

organizations such as the United States Department of Justice, the American Bar Association,

and the International Association of Chiefs of Police. The Justice Project, Eyewitness

Identification Procedures in Texas, Nov. 2008, available at www.thejusticeproject.org. They

include the following:

Cautionary Admonitions to Witnesses: Witnesses viewing a line up, either live or

photographic, should be instructed that the perpetrator may or may not be included in the line up.

Witnesses should be told they need not make an identification if they do not see the person they

believe committed the crime.

Use of Fillers: Research has shown that the effective use of fillers when forming a

lineup can help combat a person’s natural inclination to identify someone by using relative

judgment. For that reason, only one suspect should appear in each lineup. In addition, at least

five fillers should be included in a photo lineup, and at least four fillers in a live lineup.12 The

fillers should resemble the witness’s description of the perpetrator, and the suspect should not

unduly stand out.

Documentation: The identification procedure should be carefully documented.

Documentation includes “preservation of photos in a photo array or photographs taken of a live

Simultaneous and Sequential Lineups, Psychology, Public Policy and Law 12, no. 4 (2006), available at
http://eyewitness.utep.edu/Documents/Malpass06PolicyEvaluationOfSimultaneousAndSequentialLineups-
PPPL.pdf.; Wells, G.L., and A.L. Bradfield, ‘Good, You Identified the Suspect’: Feedback to Eyewitnesses Distorts
their Reports of the Witnessing Experience, Journal of Applied Psychology 83 (1998); American Bar Association,
Criminal Justice Section, Report to the House of Delegates: Resolution Adopting the American Bar Association
Statement of Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures dated August 2004,
available at http://www.abanet.org/leadership/2004/annual/111c.doc.
12
The Justice Project, Eyewitness Identification, A Policy Review, supra.
32
lineup, recording all individuals present at the lineup, documentation of the witness’s statements

regarding the lineup members during the procedure, and, if an identification is made,

documentation of the witness’s degree of confidence in the identification, in the witness’s own

words, prior to any feedback from authorities.”13

Double-Blind Administration: Best practices require that the person who administers

the lineup not know the identity of the suspect. This procedure eliminates the possibility that

officials may give inadvertent clues to the witness as to which person in the lineup is the police

suspect. Similarly, if a lineup administrator knows which member of the lineup is the suspect,

this knowledge might be inadvertently conveyed to the witness through verbal or non-verbal

cues.

Sequential Presentation: The lineup members should be presented to the witness

“sequentially” rather than simultaneously. Sequential presentation should only occur, however,

if the identification procedures comply fully with the double-blind administration

recommendation. “Presenting the lineup members one at a time to the witness reduces the

tendency for witnesses to engage in ‘comparison shopping.’ Rather, an eyewitness must judge

whether each lineup member matches her memory of the perpetrator, as opposed to making a

relative judgment.”14

No statute in Texas governs the administration of eyewitness identification procedures.

In a 2008 survey of more than 1,000 law enforcement agencies in Texas, researchers at The

Justice Project found that only 12% of the surveyed police departments that responded (750 of

1034 surveyed) have any written policies guiding photographic or live eyewitness identification

13
Id.
14
Id.
33
procedures that comport with the widely endorsed practices detailed above.15 Only 7% of the

law enforcement agencies have strong policies that comply with best practices in the areas of

cautionary instructions, use of fillers, documentation, and the blind administration of line ups.

“This lack of standardized protocol indicates that Texas is failing to reap the benefits or systemic

scientific research on eyewitness error or to follow the best practices recommended by the U.S.

Department of Justice, the International Associations of Chiefs of Police, the American Bar

Association and other organizations.”16

Eyewitness identification procedures are consistently recognized as an area of Texas law

in which reform is desperately needed. It is one of the issues being addressed by the Texas

Criminal Justice Integrity Unit, created by the Court of Criminal Appeals in 2008, and the

Timothy Cole Advisory Panel on Wrongful Convictions, created by the Texas Legislature in

2009 to make recommendations on the prevention of wrongful convictions.17 Both entities have

recognized the complete lack of statewide standards for the conduct of identification procedures.

In 2009, the Texas Legislature moved a bill to create standards for eyewitness identifications.

However, no bill passed the legislature and thus, the problems inevitable in the absence of

standard best practices remain. With the problems unaddressed, the risk of wrongful conviction

attributable to mistaken eyewitness identification remains intolerably high.

iii. Confessions are introduced without having been obtained through the
use of procedures necessary to guard against false confession

Approximately 25% of the exonerations in the U.S. revealed through post-conviction

DNA testing involved a false confession. The Justice Project, Electronic Recording of Custodial
15
The Justice Project, Eyewitness Identification Procedures in Texas, supra.
16
Id.
17
See IV (G), infra.
34
Interrogations, A Policy Review, available at www.thejusticeproject.org. In a study of 340

exonerations in the United States from 1989 to 2003, 15% involved false confessions. Of the

340 exonerations, 205 were wrongful convictions for murder and of those 20% were caused by

false confessions.18 “Not surprisingly, false confessions tend to be concentrated in the most

serious and high profile cases, lending credence to the argument that false confessions – as well

as wrongful convictions based on false confessions – are more likely to occur in the most serious

cases because there is more pressure on police to solve such cases.”19

Confessions are powerful evidence, so much so that juries will sometimes convict based

on a confession alone, ignoring other exculpatory evidence. Mock jury studies have shown that

confessions carry more weight than other kinds of evidence, including eyewitness identification

testimony, and that juries do not discount confessions even when it is logically appropriate to do

so and even when they are specifically told to discount an involuntary confession.20 Tests have

also shown more generally that it is difficult for police, attorneys, judges, and juries to

distinguish false confessions from true confessions.21 An electronic record allows law

enforcement and prosecutors to review the interrogation later, to observe the suspect’s demeanor

and watch for inconsistencies. This allows for a more informed decision about whether to charge

a suspect on the basis of a statement, thus helping to prevent the prosecution of an innocent

individual. The uniquely incriminating influence of a confession at trial makes it particularly

18
Samuel R. Gross et al., Exonerations in the United States,1989 Through 2003, 95 J. Crim. L. &
Criminology 523, 544 (2005).
19
Id.
20
The Justice Project, Electronic Recording of Custodial Interrogations, A Policy Review, supra.
21
Id.
35
important to safeguard innocent defendants from wrongful convictions based on false

confessions.

Researchers have documented known causes of false confessions, including vulnerable

defendants and excessively long interrogations. Research has demonstrated that sleep

deprivation and isolation can heighten the instances of false confessions.22 While most police

interrogations last for less than two hours, a recent analysis of 125 proven false confessions

showed that the average interrogation in these cases lasted over 16 hours.23 Further, the more

vulnerable an accused, the more risk exists that he may falsely confess. Professor Gross’s study

of 340 exonerations found that juveniles, the mentally-retarded, or those suffering from mental

illness were much more likely to have falsely confessed to the crime for which they were

accused and later acquitted.24 This is due to diminished mental capacities and their tendencies to

be intimidated by or want to please authority figures.

Many law enforcement personnel, scientists, legal scholars, and policymakers agree – the

entire custodial interrogation must be recorded in criminal cases.25 Recording should begin at

and include the delivery of the suspect’s Miranda rights and continue, unaltered and

22
Id.
23
Steven Drizin and Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.
L. Rev. 891, 946 (2004).
24
Samuel R. Gross et al., Exonerations in the United States,1989 Through 2003, 95 J. Crim. L. &
Criminology 523, 544 (2005).
25
Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations (Center on Wrongful
Convictions, Northwestern Univ. School. of Law, Special Report No. 1, 2004), available at
http://www.law.northwestern.edu/depts/clinic/wrongful/documents/SullivanReport.pdf.; Amy Klobuchar, Eye on
Interrogations: How Videotaping Serves the Cause of Justice, Washington Post op-ed, June 10, 2002,
http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A22566-2002Jun9; American
Bar Association Section of Criminal Justice, Report to the House of Delegates,
http://www.abanet.org/crimjust/policy/revisedmy048a.pdf; Brian Parsi Boetig, M.S., David M. Vinson, & Brad R.
Weidel, Revealing Incommunicado, FBI Law Enforcement Bulletin, December 2006, Vol.75,
No.12.,http://www.fbi.gov/publications/leb/2006/dec06leb.pdf.
36
uninterrupted, until the end of the interview. This requirement benefits law enforcement in that

questions as to whether Miranda warnings were given will be avoided, thus avoiding extensive

pretrial hearings as to whether or not suspects received their Miranda rights and disagreements

between detectives and suspects who sometimes offer vastly different accounts of what

transpired during an interrogation. Recording the entire interrogation also benefits judges by

ending disputes over what took place during the interrogation, greatly reducing motions to

suppress defendant statements. Only by reviewing the entire interrogation, from start to finish,

can judges and juries accurately assess the circumstances surrounding a confession.

Texas’ practice governing the use of statements by an accused is found in Article 38.22, §

3 of the Texas Code of Criminal Procedure. The statute provides that “no oral or sign language

statement of an accused made as a result of custodial interrogation shall be admissible against the

accused in a criminal proceedings unless (1) an electronic recording, which may include motion

picture, video tape, or other visual recording is made of the statement.” While it may appear on

first read that the statute requires recording interrogations, the “key to understanding the statute

is the phrase ‘statement of an accused made as a result of custodial interrogation.’” The Justice

Project, Electronic Recording of Custodial Interrogations in Texas: A Review of Current

Statutes, Practices, and Policies, available at www.thejusticeproject.org. The Texas statute

requires only that the final statement not the confession itself be recorded. Further, this

provision applies only to oral statements. There is no recording requirement at all when the

statement from the accused is in writing. The absence of a recording requirement from the start

of the interrogation can cause incorrect decisions by the judge and jury.

Despite the low statutory requirements, many people assume that law enforcement

agencies in Texas generally do record interrogations. A survey of 1034 Texas law enforcement
37
agencies demonstrate that a majority of respondents do record interrogations at least some of the

time.26 Of the 441 responses received, 380 departments indicated that they either routinely

record custodial interrogations, record interrogations for certain classes of felonies, or record

interrogations at the discretion of the lead investigator. Of the 61 departments in the survey who

indicated that they do not record custodial interrogations, 35 (57%) of them indicated that they

do not record because recording equipment is too expensive.27 When asked if financial

assistance to obtain recording equipment and training would lead them to start or expand

recording practices, about 79% of respondents indicated that it would.28 The department policies

reveal that the protections against false confessions through the electronic recording of

interrogations is inconsistent and arbitrary.

Guarding against false confessions through the electronic recording of

interrogations is an area of Texas law in which reform is desperately needed and is one of

the issues being addressed by the Timothy Cole Advisory Panel on Wrongful

Convictions, created by the Texas Legislature in 2009, to make recommendations on the

prevention of wrongful convictions.29 In 2009, the Texas Legislature moved a bill to urge

electronic recording of interrogations in felony cases. However, no bill passed the

legislature and thus, the problems inherent in the absence of standard best practices with

respect to documenting interrogations, remain unaddressed. With the problems

unaddressed, the risk of wrongful conviction remains heightened.

26
The Justice Project, Electronic Recording of Custodial Interrogations in Texas: A Review of Current
Statutes, Practices, and Policies, available at www.thejusticeproject.org.
27
Id.
28
Id.
29
See IV (G), infra.
38
 iv. Perjured testimony by informants who are paid or provided leniency in
their own cases is often introduced

A number of studies point to the enormous role that informant testimony plays in

wrongful convictions. In 2000, the book Actual Innocence by Jim Dwyer, Peter Neufeld, and

Barry Scheck, estimated that 21% of wrongful capital convictions were influenced by snitch

testimony. Id. at 156. A study by the Center on Wrongful Convictions four years later doubled

that number. Rob Warden, The Snitch System: How Snitch Testimony Sent Randy Steidl and

Other Innocent Americans to Death Row, Center on Wrongful Convictions, Northwestern

University School of Law, 2004 (available at

http://www.law.northwestern.edu/wrongfulconvictions). Professor Samuel Gross’s study on

exonerations reported that nearly 50% of wrongful murder convictions involved perjury by

someone such as a jailhouse snitch or another witness who stood to gain from false testimony.

Samuel R. Gross et al., Exonerations in the United States,1989 Through 2003, supra at 543-44.

As Professor Alexandra Natapoff explains in Beyond Unreliable: How Snitches

Contribute to Wrongful Convictions, 37 Golden Gate U. L. Rev. 107 (2006),

[i]nformants have become law enforcement’s investigative tool of choice,

particularly in the ever-expanding world of drug enforcement. Informants are part
of a thriving market for information. In this market, snitches trade information
with police and prosecutors in exchange for lenience, the dismissal of charges,
reduced sentences, or even the avoidance of arrest. It is a highly informal, robust
market that is rarely scrutinized by courts or the public.

Id. at 111 (footnotes omitted). The central problem with informant testimony – and what makes

it risk factor for wrongful conviction – is that it has no safeguards for its reliability. Professor

Natapoff’s analysis cuts to the heart of the problem:

Because investigations and cases rely so heavily on informants, protecting and

rewarding informants has become an important part of law enforcement. Police
and prosecutors are well known for protecting their snitches: all too often, when
39
 defendants or courts seek the identity of informants, cases are dismissed or
warrant applications are dropped. More fundamentally, police and prosecutors
become invested in their informants’ stories, and therefore may lack the
objectivity to know when their sources are lying.

Informants are thus punished for silence and rewarded for producing inculpatory
information, even when that information is inaccurate. The system protects them
from the consequences of their inaccuracies by guarding their identities and
making their information the centerpiece of the government’s cases. The front
line officials who handle informants – police and prosecutors – are ill equipped to
screen that information, and once they incorporate it into their cases, they acquire
a stake in its validity. This phenomenon explains in part why snitch testimony
generates so many wrongful convictions: it permeates the criminal system and
there are few safeguards against it.

Id. at 112 (footnotes omitted).

Safeguards against unreliable informant testimony have been proposed by Professor

Natapoff, other legal scholars, and The Justice Project. The recommendation made by all is that

informant testimony be subjected to a Daubert-type reliability hearing before trial to test the

reliability of the informant and his/her information. Id. at 113-16.30 Other recommendations

included written detailed pretrial disclosures by prosecutors concerning the informants they

intend to call as witnesses, corroboration by independent evidence, and cautionary jury

instructions.31

Texas has done nothing to adopt any of these safeguards. Thus, the risk of wrongful

conviction from the introduction of perjured informant testimony is unabated in Texas cases.

v. The prosecution’s introduction of forensic evidence appears to lend

certainty to important forensic issues which is not justified and is
misleading

30
See also, The Justice Project, In-custody Informant Testimony at 3-4 (available at
www.thejusticeproject.org.).
31
Id. at 3-5.
40
 In Invalid Forensic Science Testimony and Wrongful Convictions, 95 Virginia L. Rev. 1

(2009), Brandon Garrett and Peter Neufeld conducted an examination of all the cases of

exonerees who had testimony by forensic analysts at their trials. The results of the study were

summarized in the following:

This is the first study to explore the forensic science testimony by prosecution
experts in the trials of innocent persons, all convicted of serious crimes, who were
later exonerated by post-conviction DNA testing. Trial transcripts were sought
for all 156 exonerees identified as having trial testimony by forensic analysts, of
which 137 were located and reviewed. These trials most commonly included
testimony concerning serological analysis and microscopic hair comparison, but
some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and
several included DNA testing. This study found that in the bulk of these trials of
innocent defendants -- 82 cases or 60% -- forensic analysts called by the
prosecution provided invalid testimony at trial -- that is, testimony with
conclusions misstating empirical data or wholly unsupported by empirical data.
This was not the testimony of a mere handful of analysts: this set of trials
included invalid testimony by 72 forensic analysts called by the prosecution and
employed by 52 laboratories, practices, or hospitals from 25 states.
Unfortunately, the adversarial process largely failed to police this invalid
testimony. Defense counsel rarely cross-examined analysts concerning invalid
testimony and rarely obtained experts of their own. In the few cases in which
invalid forensic science was challenged, judges seldom provided relief.

Id. at 1-2 (emphasis supplied).

The findings of this study are consistent with the findings of the National Academy of

Sciences report, Strengthening Forensic Science in the United States: A Path Forward (2009).

The NAS notes at the outset that advances in DNA technology

have revealed that, in some cases, substantive information and testimony based on
faulty forensic science analyses may have contributed to wrongful convictions of
innocent people. This fact has demonstrated the potential danger of giving undue
weight to evidence and testimony derived from imperfect testing and analysis.
Moreover, imprecise or exaggerated expert testimony has sometimes contributed
to the admission of erroneous or misleading evidence.

Id. at S-3 (Executive Summary—Prepublication Copy).

41
 The NAS Report goes on to note that, except for nuclear DNA analysis, none of the

forensic sciences is able to meet in a reliable way the primary missions of forensic science:

Often in criminal prosecutions and civil litigation, forensic evidence is offered to

support conclusions about “individualization” (sometimes referred to as
“matching” a specimen to a particular individual or other source) or about
classification of the source of the specimen into one of several categories. With
the exception of nuclear DNA analysis, however, no forensic method has been
rigorously shown to have the capacity to consistently, and with a high degree of
certainty, demonstrate a connection between evidence and a specific individual or
source.

Id. at S-5. The reasons for this are that the forensic sciences lack the core standards and rigorous

practice methodologies to meet their fundamental mission:

[O]perational principles and procedures for many forensic science disciplines are
not standardized or embraced, either between or within jurisdictions. There is no
uniformity in the certification of forensic practitioners, or in the accreditation of
crime laboratories. Indeed, most jurisdictions do not require forensic practitioners
to be certified, and most forensic science disciplines have no mandatory
certification programs. Moreover, accreditation of crime laboratories is not
required in most jurisdictions. Often there are no standard protocols governing
forensic practice in a given discipline. And, even when protocols are in place
(e.g., SWG standards), they often are vague and not enforced in any meaningful
way. In short, the quality of forensic practice in most disciplines varies greatly
because of the absence of adequate training and continuing education, rigorous
mandatory certification and accreditation programs, adherence to robust
performance standards, and effective oversight. These shortcomings obviously
pose a continuing and serious threat to the quality and credibility of forensic
science practice.

Id. at S-4 (footnote omitted). Continuing this analysis, the report concludes, in essence that

forensic science is not based on science:

The simple reality is that the interpretation of forensic evidence is not always
based on scientific studies to determine its validity. This is a serious problem.
Although research has been done in some disciplines, there is a notable dearth of
peer-reviewed, published studies establishing the scientific bases and validity of
many forensic methods.

42
Id. at S-6 (footnote, noting as an example the lack of scientific validation of fingerprint methods,

omitted).

NAS recommends the following to address this last deficiency:

A body of research is required to establish the limits and measures of performance

and to address the impact of sources of variability and potential bias. Such
research is sorely needed, but it seems to be lacking in most of the forensic
disciplines that rely on subjective assessments of matching characteristics. These
disciplines need to develop rigorous protocols to guide these subjective
interpretations and pursue equally rigorous research and evaluation programs.

Id. And if this were done, two goals relevant to criminal cases would be served:

First, further improvements will assist law enforcement officials in the course of
their investigations to identify perpetrators with higher reliability. Second, further
improvements in forensic science practices should reduce the occurrence of
wrongful convictions, which reduces the risk that true offenders continue to
commit crimes while innocent persons inappropriately serve time.

Id. at 2-3.

Plainly, the study by Garrett and Neufeld, finding a 60% error rate in the analysis of

testifying forensic experts in wrongful conviction cases, and the NAS’s indictment of current

forensic sciences, with the exception of nuclear DNA analysis, as “faulty … science … [that]

may have contributed to wrongful convictions of innocent people,” is enough to establish that the

use of any non-nuclear-DNA forensic science adds appreciably to the risk of wrongful

conviction.

The findings of the NAS report resonate strongly with the experience of the Houston

Police Department’s Crime lab. The shoddy work of the Houston Police Department’s (HPD)

crime lab demonstrates the devastating results of a forensic lab operating in the absence of

adequate accountability, protocol, and oversight. In 2002, media reports and a subsequent audit

uncovered serious problems in the HPD DNA lab, including untrained analysts, inaccurate work,

43
and the damage of evidence caused by leaks from building’s roof.32 Errors were also uncovered

in other HPD departments including those dealing with blood typing, firearm examination, and

drug analysis.33 In August 2004, an internal investigation discovered 280 boxes of evidence that

had been improperly stored, which included such items as body parts, a fetus, and blood stained

clothing related to cases processed between 1979 and 1991.34 These discoveries led to the

appointment of an independent investigator in 2005 and a more than five-million dollar

investigation of the HPD crime lab that spanned the next several years.

Michael Bromwich, a former U.S. Justice Department Inspector General who was

appointed as an independent investigator to review the scandal, found there were repeated cases

in which DNA samples were incorrectly tested, poor management that tolerated unqualified

analysts to perform questionable work without supervision, the failure to disclose exculpatory

evidence to defendants, and cases in which analysts made up false documentation of results

without having actually conducted any testing at all.35 Bromwich’s final report in 2007

recommended that new DNA testing be made available to prisoners in more than 400 cases as a

result of substandard or incomplete forensic testing conducted in their cases.36 Bromwich

evaluated about a quarter of those 400 cases and found “major problems” in about a third of

32
Steve McVicker and Roma Khanna, New Tests Urged in HPD Final Report, Hous. Chron., June 13,
2007.
33
Id.
34
Roma Khanna, Police Turn Up Hundreds of Boxes of Evidence from Crime Lab, Hous. Chron., Aug, 26,
2004.
35
Michael Bromwich, Final Report of the Independent Investigator for the Houston Police Department
Crime Laboratory and Property Room, June 13, 2007, available at
http://www.hpdlabinvestigation.org/reports/070613report.pdf.
36
Id.

44
those cases he reviewed, including four Harris County death penalty cases.37 In his final report,

Bromwich wrote:

While the number of proven wrongful convictions attributable to the Crime Lab's
DNA work is small ... the possibility of other wrongful convictions resulting from
DNA analysis during this era cannot be dispelled.38

Most recently, the Houston Chronicle reported that an audit of the Houston Police Crime

Lab’s fingerprint division identified problems in more than 200 cases -- more than half of the

cases that had been selected for review following the revelation of inaccuracies.39 The problems

discovered were serious enough to lead the authorities to require that more than 4,000 violent

crime cases from the past six years be reanalyzed -- a process that no doubt will be very costly

and time intensive for the city of Houston. According to the Chronicle, the Latent Prints

Comparison Unit suffers from “significant deficiencies with staffing, a lack of proper

supervisory review, inadequate quality control, technical competence inconsistent with industry

standards, insufficient training, and inadequate standard operating procedures.”40

The risk of wrongful conviction due to faulty forensic science in Harris County is,

standing alone, constitutionally intolerable. Coupled with the other risk factors addressed in the

motion, this factor pushes the risk beyond the limits of constitutional acceptability.

vi. Pretrial discovery procedures are inadequate to safeguard against the

suppression of Brady evidence and the introduction of unreliable
evidence

37
The four death penalty cases in which Bromwich found “major problems” related to the forensic testing
conducted at HPD included Franklin Alix, Juan Carols Alvarez, Gilmar Guevara, and Derrick Jackson. See report,
Id.
38
Id. at 198.
39
Moises Mendoza and Bradley Olsen, HPD Fingerprint Unit is Focus of Criminal Probe, Hous. Chron.,
Dec. 2, 2009.
40
Id.
45
 There is a risk of wrongful convictions when exculpatory evidence has been withheld

from the defense. In too many cases, exculpatory evidence is brought to light in the appeals

process and reveals that an innocent person has been wrongly convicted. “Discovery is a crucial

procedural safeguard that protects against wrongful imprisonment, helps to make the legal

system more transparent by increasing pretrial disclosure, and ensures a fair procedure by

allowing each side in a trial to adequately prepare their case.”41 Conversely, inadequate

discovery laws and practice can threaten the accuracy of the results and jeopardize the

defendant’s right to due process. Robust disclosure of evidence pre-trial can also mitigate other

common reasons for wrongful convictions, such as eyewitness misidentification and false

confessions. “Expanded discovery allows the defense to adequately and vigorously challenge

evidence and increases the likelihood that poor, misleading, or exculpatory evidence will be

caught and handled appropriately when considering pleas and at trial.”42

In 1963, the United States Supreme Court issued the landmark decision of Brady v.

Maryland, 373 U.S. 83 (1963), and found the failure to disclose relevant exculpatory information

-- information that would tend to negate guilt or ameliorate the sentence -- to be a violation of the

defendant’s due process rights. Accordingly, the Court held that the prosecution must provide

the defense with any evidence in its possession that is material to the defendant’s guilt or

punishment. In addition, Brady holds that prosecutors can be held to violate of due process

regardless of whether the suppression of evidence is malicious in its intent. While Brady

provides a basic framework for disclosing exculpatory material, it has evolved into a post-trial

41
ABA Standards for Criminal Justice: Discovery and Trial by Jury, 3d ed.,
http://www.abanet.org/crimjust/standards/discovery.pdf.
42
The Justice Project, Expanding Discovery in Criminal Cases, available at www.thejusticeproject.org.
46
corrective tool more than a practical pre-trial tool useful for preventing wrongful convictions and

the costs of an unnecessary capital trial.43

To guard against wrongful conviction, it is necessary that discovery be adequate,

mandatory, and enforced. The American Bar Association has long supported expanded criminal

discovery, as it helps to “promote a fair and expeditious disposition of the charges; provide the

defendant with sufficient information to make an informed plea; permit thorough preparation for

trial and minimize surprise at trial; and, reduce interruptions and complications during trial and

avoid unnecessary and repetitious trials.”44 The ABA standards for criminal discovery clearly

define the types of evidence the prosecution must share with the defense. The standards include

written and oral statements made by the defendant and codefendants and witness lists, police

reports, tangible objects, expert opinions, and information (such as eyewitness identification)

collected by third-party investigatory agencies such as law enforcement. Additionally, the

standards call for prosecutors to disclose any agreements between the state and key witnesses, as

well as reports from experts regarding mental or physical examinations, scientific tests and

expert qualifications.45

Texas discovery is controlled by Article 39.14 of the Texas Code of Criminal

Procedure. The statutes and rules regarding discovery in criminal cases are “so minimal that

they fail to guarantee the opportunity for evidence to be fully investigated and meaningfully

43
Scott E. Sundby, Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland, 33
MCGEORGE L. REV. 643 (Summer 2002).
44
STANDARDS FOR CRIMINAL JUSTICE: DISCOVERY AND TRIAL BY JURY Standard 11 (1996).
45
Id.

47
challenged.”46 Texas has no statute that mandates automatic discovery of critical case evidence,

including police reports and witness statements. According to the Texas statute, defense lawyers

are required to file motions with the trial court requesting basic case information.47 The defense

must also show “good cause” to receive this evidence. There is no certification process or

specified timelines, with the exception of the disclosure of expert witnesses.

Further, unlike many other states, Texas provides no formal rules for case conferences,

and judges take an ad hoc approach to capital case management. Case management conferences

are particularly important in light of the recommended requirement that the State file a certificate

of disclosure prior to trial. In addition, Texas does not define “exculpatory evidence.” While the

Texas Code of Criminal Procedure states that it is “the primary duty of all prosecuting attorneys .

. . not to convict, but to see that justice is done,” and, “not [to] suppress facts or secrete witnesses

capable of establishing the innocence of the accused,”48 Texas capital cases have been plagued

with state misconduct harbored by limited discovery provisions. A survey of published capital

cases, for example, found 41 capital convictions in which state misconduct was documented.49

Expanded discovery procedures are consistently recognized as an area of Texas law in

which reform is desperately needed. Though the absence of statewide standards is at the heart of

the problem, some Texas counties are leading the way to modernizing discovery procedures and

broadening defense access to evidence. Some point to Tarrant County's system as a model for

46
The Justice Project, Convicting the Innocent, Texas Justice Derailed, available at
www.thejusticeproject.org.
47
TEX. CRIM. PROC. CODE §39.14 (West 2004).
48
TEX. CRIM. PROC. CODE § 2.01 (West 2004).
49
Texas Defender Service, A State of Denial, available at www.texasdefender.org, See also, Center for
Public Integrity, Harmful Error: Investigating America’s Local Prosecutors (date), available at
http://www.publicintegrity.org/pm/default.aspx.
48
the state. "Tarrant County does seem to be the gold standard," said Barry Macha, a member of

the Timothy Cole Advisory Panel and the elected district attorney in Wichita County, "It's state-

of-the-art; the best system I have seen.”50 Discovery reform is one of the issues currently being

considered by the Timothy Cole Advisory Panel on Wrongful Convictions, created by the Texas

Legislature in 2009 to make recommendations on the prevention of wrongful convictions.51 The

recognition that the Texas statute fails to guarantee the exchange of important information to

ensure the accuracy of results in criminal cases can also be seen in the efforts of the Texas

Legislature. In 2005, 2007, and 2009, the Texas Legislature moved bills to broaden defense

access to discovery. However, no bill passed the legislature and, thus, the problems inherent in

the absence of adequate discovery remain unaddressed. As such, the risk of wrongful conviction

as a result of inadequate discovery provisions is unabated.

viii. Juries are selected in a racially discriminatory manner, thereby reducing

the thoroughness and accuracy of their deliberations.

Harris County prosecutors have a shameful history of excluding African-American

citizens from juries. Although this practice has been illegal for more than a century, and focus is

often devoted to the equal protection rights of the excluded citizens, recent empirical study has

provided penetrating insight into how discrimination in jury selection may increase the risk of

wrongful conviction by diminishing the thoroughness and accuracy of jury deliberations.

Dissenting from denial of certiorari in Harris v. Texas, 467 U.S. 1261, 1263 (1984),

Justice Marshall detailed the discriminatory practices of the Harris County District Attorney’s

Office:

50
Alex Branch, Tarrant County’s Electronic Open-File System Seen as Gold Standard for Reducing
Wrongful Convictions, Ft. Worth Star Telegram, March 18, 2010.
51
See IV(G), infra.
49
 Craig Washington, a defense attorney in the county, testified that in the past
decade he had participated in roughly 140 criminal cases in which the
complaining witness was white and the defendant Negro. In only two of these
cases did Negroes ultimately sit on the jury, and in these cases it was only because
the prosecution ran out of peremptory challenges.
At a hearing held before the trial court, Judge Joseph Guarino, a Texas District
Judge with 28 years of experience in the county’s criminal justice system,
testified on behalf of petitioner. Judge Guarino stated he could not recall a single
instance in which a Negro juror sat on a petit jury in a criminal case in which the
complainant was white and the defendant Negro. Judge Miron Love, another
judge from the county, agreed that in “most of those cases” the prosecution
“’would eliminate most of the black jurors’” through the exercise of peremptory
challenges.” The testimony of Judge Guarino and Judge Love was corroborated
by a variety of informed witnesses.… Jacquelyn Miles, a court reporter in Harris
County, stated that over the last four years she had transcribed testimony in 20 to
25 criminal cases with white complaining witnesses and Negro defendants, and
she could not recollect a single case in which a prospective Negro juror had been
empanelled. Other witnesses for petitioner, including lawyers who had served
under the county’s District Attorney, confirmed that in this class of cases, the
exclusion of Negro jurors was “the general rule.”

Harris, 467 U.S. at 1263 (Marshall, J., dissenting from the denial of certiorari).

Expectations that prosecutors would exclude African-Americans from jury service have

persisted – the understanding in the office that prosecutors were expected to strike black jurors

from panels due to race was still prevalent under Chuck Rosenthal, who served as Harris County

District Attorney until 2008. See, e.g., Falkenberg, A Lonely Feeling in the DA’s Office, HOUS.

CHRON. Feb. 6, 2008 at B1 (reporting internal criticism of a black former Harris County felony

prosecutor “for allowing too many minorities on her juries”).

This historical pattern and practice is reflected in the numerous Batson challenges raised

against the Harris County District Attorney’s Office. See, e.g., Rosales v. Quarterman, No. H-

03-1016, (S.D. Tex. Dec. 12. 2008) (granting habeas corpus relief to a death-sentenced prisoner

based on a Batson challenge); Emerson v. State, 851 S.W.2d 269 (Tex. Crim. App. 1993)

(remanding for new trial based on a Batson challenge against the Harris County District

50
Attorney’s Office); Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1989) (same); Esteves v.

State, 859 S.W.2d 613 (Tex. App. 1st Dist. Houston 1993) (granting new trial due to three Batson

violations by Harris County District Attorney’s Office); Vargas v. State, 859 S.W.2d 534 (Tex.

App. 1st Dist. Houston 1993) (same, based on four Batson violations); Lewis v. State, 775 S.W.2d

13 (Tex. App. 14th Dist. Houston 1989) (same, based on three Batson violations); Tompkins v.

State, 774 S.W.2d 195 (Tex. Crim. App. 1987) (rejecting Batson challenge because of deference

due trial judge, but noting that “black jurors have been relatively uncommon on capital murder

juries in Harris County during the past several years" and that during voir dire the prosecution

used its challenges both peremptorily and for cause to exclude all thirteen prospective black

jurors in the venire), aff’d by equally divided Court, 486 U.S. 754 (1989).52 See also Esteves v.

Brock, 106 F.3d 674, 677 (5th Cir. 1997) (granting a Harris County Assistant District Attorney,

and the Office, absolute immunity from a § 1983 complaint alleging a “widespread practice of

racial discrimination” in jury selection, but noting that the prosecutor’s “use of peremptory

strikes in a racially discriminatory manner was part of her presentation of the state’s case [.]”).

Indeed, the recently-updated Harris County District Attorney’s Office’s training materials show

that for many years, the prosecutors have been advised and encouraged to consider race and

ethnicity during jury selection. A June 19, 2000, update to previously distributed training

materials on Batson challenges explicitly directs prosecutors to consider the race or ethnicity of

52
The Batson hearing in Tompkins is particularly revealing. One Harris County Assistant District Attorney
from 1974 to 1985 testified that “during that period the general rule in capital murder selection [was] be wary of
minorities.” Rosales v. Quarterman, No. H-03-1016, Petitioner’s Proposed Findings of Fact and Conclusions of
Law, (S.D. Tex. Houston filed Apr. 11, 2008), quoting Tompkins Batson Hearing, RR 31:1-32:4. District Attorney
Johnnie Holmes testified that in the late 1970s and early 1980s, it was “the general feeling among prosecutors” that
minorities were more sympathetic to defendants than non-minorities. Id., RR 181:15-21. Thomas Royce, another
Harris County prosecutor, testified that “everybody” in the Harris County District Attorney’s Office engaged in
conversations about “the undesirability of minorities on juries,” Id., RR 161:20-162:3; that, in selecting a jury, he
considered “the notion that blacks are more inclined to be sympathetic towards black defendants” (Id., RR 156:19-
24); and the idea that “blacks or minorities were more inclined to be lenient to defendants.’ Id., RR 162:11- 16.).
51
prospective jurors. After pointing out that “[r]acial or ethnic background is something one can

easily observe,” the section advises that it is “important to be aware of and note what that race

is.” The training materials even advise prosecutors that “if [they] rely partly on race, gender, or

religion for [their] strike,” they should “emphasize that other reasons dominated [their]

decision.” See Rosales v. Quarterman, No. H-03-1016, Petitioner’s Proposed Findings of Fact

and Conclusions of Law, (S.D. Tex. Houston filed Apr. 11, 2008).

Almost forty years ago, in the course of addressing a claim of racial discrimination

during jury selection, Justice Marshall, wrote:

. . . we are unwilling to make the assumption that the exclusion of Negroes has
relevance only for issues involving race. When any large and identifiable
segment of the community is excluded from jury service, the effect is to remove
from the jury room qualities of human nature and varieties of human experience,
the range of which is unknown and perhaps unknowable. It is not necessary to
assume that the excluded group will consistently vote as a class in order to
conclude, as we do, that its exclusion deprives the jury of a perspective on human
events that may have unsuspected importance in any case that may be presented.

Peters v. Kiff, 407 U.S. 493, 503-04 (1972).

A recent, ground-breaking study confirmed the Court’s conclusion that excluding

African-Americans from jury service implicates more than race issues, and the implications go

directly to the truth-seeking function of the jury. See Samuel R. Sommers, On Racial Diversity

and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury

Deliberations, 90 Journal of Personality and Social Psy. 4, 2006, at 597-612.

Professor Sommers designed a study to measure numerous variables in jury deliberations,

including length of deliberations, the number of facts discussed by the jury, factual inaccuracies

during jury deliberations, and the number of uncorrected inaccurate statements made by jurors.

Id. at 605-06. Subjects were grouped into 6-person juries, some of which were all white and

52
others were comprised of four white and two black participants. Id. at 601-02. Jurors were

given voir dire questionnaires. Half of the juries were given “race neutral” questionnaires, the

other half were given questionnaires that asked several questions about whether race bias would

affect their ability to preside on a case of a black defendant accused of assaulting a white victim.

Each jury was then shown a 30-minute Courtroom Television Network summary of a sexual

assault trial. Id. at 602. Juries were permitted 60 minutes in which to deliberate, the

deliberations were video-taped.

The results of this study demonstrate that diverse juries take more care and more

accurately process evidence than all-white juries. The diverse group deliberated for 50.67

minutes, whereas the all-white group deliberated for 38.49 minutes. The diverse group discussed

30.48 facts, the all-white group discussed 25.93. All-white groups averaged 7.28 factual

inaccuracies, inaccuracies occurred just 4.14 times in the diverse group. Similarly, there were

2.49 uncorrected inaccurate statements in the all-white group, but only 1.36 in the diverse group.

Id. at 605.

The study documented that white jurors in diverse groups made roughly 40% fewer

factual inaccuracies than white jurors in all-white groups. Id. at 606. Moreover, the white jurors

in diverse groups considered more case facts (5.27) than white jurors in all-white groups (4.32).

Id. Thus, racial diversity enhanced the performance of the white jurors.

The Sommers study validates the Supreme Court’s intuition that racial diversity has an

impact – beyond the issue of discrimination – on the trial itself:

This study takes a rare empirical look at the processes through which racial
diversity influences group decision making. Consistent with a traditional
information exchange prediction, heterogeneous groups deliberated longer and
considered a wider range of information than did homogeneous groups.
However, these differences did not simply result from Black participants adding
53
 unique perspectives to the discussions. Rather, White participants were largely
responsible for the influence of racial composition, as they raised more case facts,
made fewer factual errors, and were more amenable to discussion of race-related
issues when they were members of a diverse group. Moreover, the influence of
racial diversity was not limited to processes of information exchange, as Whites’
predeliberation judgments also varied by group composition. This conclusion that
there are multiple processes through which racial diversity is influential is a novel
contribution to the investigation of group composition and decision making.

Id.

The import of these results is clear: “a group’s racial composition affects its decision

making through multiple processes,” and there are quantifiable “specific advantages of racial

heterogeneity for group decision making.” Id. at 610. The absence of these advantages – longer

deliberation, the reduction of factual error, etc. – increases the likelihood of a wrongful

conviction.

F. Two factors that are supposed to safeguard against the risk of wrongful
conviction are so flawed that they contribute to thr risk of wrongful
convictions being sustained

Two procedures are designed to serve as the failsafe against wrongful conviction: state

habeas corpus proceedings and clemency proceedings. However, these procedures are so flawed

that they rarely serve their purpose. They are most certainly not failsafes of any sort.

i. State habeas proceedings

The Texas death penalty scheme puts innocent lives in jeopardy. Although it is intended

to accurately identify and swiftly punish guilty offenders who are deserving of death, the current

capital punishment system is subject to mistakes and failures which have resulted in the

conviction of the innocent. The habeas corpus process is supposed to act as a safety net for the

system, allowing it to catch its mistakes and uncover serious errors in capital trials. It is a

proceeding intended to prevent wrongful executions, to find any new evidence proving

54
innocence, and to uncover constitutional errors including prosecutorial misconduct, shoddy

police work, mistaken eyewitness identifications, false confessions, and ineffective trial

lawyers.53 Contrary to the misconception that the process of post-trial review in capital cases

affords inmates multiple opportunities for relief, barring unique circumstances, claims not

litigated at the state habeas corpus level cannot be presented for review in a later federal

proceeding.54

Since the death penalty was reinstated, Texas has executed 452 people and is responsible

for more than one-third of all executions in the U.S.55 Since 1973, 138 death row prisoners

nationwide have been cleared of charges and freed from imprisonment – including 11 in Texas.56

Most exonerations have come during habeas corpus proceedings, when the truth of the cases was

discovered. Exculpatory evidence, gathered through new DNA testing, scientific or other

evidence, has uncovered persons wrongly convicted and sentenced to death for crimes they did

not commit. The 11 petitioners who were exonerated were the lucky ones. For the vast majority

of capital habeas applicants, state habeas proceedings turned into a cruel joke.

Texas, unlike most death penalty states, did not appoint lawyers to represent inmates in

state habeas corpus proceedings until 1995. Legislation passed in 1995 requires the Texas Court

of Criminal Appeals to “appoint competent counsel” and mandates that such counsel “investigate

53
See, e.g., Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (noting that habeas proceedings
are generally the only place in which a claim of ineffective assistance of trial counsel can be heard).
54
See generally 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 23
(4th ed. 2001) (explaining exhaustion requirement that generally prohibits federal courts from considering claims
not presented to state courts).
55
Death Penalty Information Center, List of Those Executed by Year Since 1976, available at
http://www.deathpenaltyinfo.org/dpicexec.htm .
56
Death Penalty Information Center, Innocence List, available at http://deathpenaltyinfo.org/innocence-list-
those-freed-death-row, updated as of Nov. 3, 2009.
55
expeditiously . . . the factual and legal grounds for the filing of an application for a writ of habeas

corpus.”57 The legislation represented a trade-off. In exchange for providing paid, “competent”

counsel for one round of state habeas proceedings, the legislature severely restricted an inmate’s

ability to present a subsequent or successor habeas petition. During the floor debate, the author

of the legislation, Representative Pete Gallego, explained the rationale of providing counsel and

simultaneously streamlining the post-conviction process. He stated:

What we’re attempting to do here is to say “raise everything at one time.” You get
one bite at the apple. If you have to stick the kitchen sink in there, put it in there,
and we will go through those claims one at a time and make a decision . . . we are
going to give you one very well-represented run at a habeas corpus proceeding.
And unless you meet a very fine-tuned exception, you’re not going to be able to
come back time after time after time.58

Despite the well-articulated legislative intent to guarantee each inmate a robust and fair

opportunity to present his claims of innocence or unfairness in state habeas corpus proceedings,

the Texas Court of Criminal Appeals eviscerated the statute’s guarantee of “competent counsel”

in its decision in the case of Anthony Graves in 2002.59 While the Court agreed that Graves had

the right to be represented by competent counsel,60 it declined to grant him any relief in the face

of clearly incompetent performance by his appointed habeas counsel. The Court decided that

there would be no remedy for inmates who receive incompetent representation and reasoned that

while an inmate is entitled to a competent lawyer, the competence of an attorney is not measured

57
Id.
58
S.B. 440, Acts 1005, 74th Leg., codified at Tex. Code Crim. Proc. art. 11.071 (Presentation by
Representative Pete Gallego at second reading of S.B. 440 on the floor of the House of Representatives, May 18,
1995) (emphasis added).
59
Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002).
60
Id. at 113.

56
according to what the attorney does or does not do during the period of habeas representation.61

Instead, it held that being on the list of approved attorneys is sufficient to demonstrate that

counsel was “competent” within the meaning of the statute, regardless of counsel’s actual

performance, or lack thereof.

Voluminous research on the quality of state habeas counsel all comes to the same

conclusion – Article 11.071 “fails to consistently fulfill its role as the vital safety net protecting

the innocent and undeserving from execution.”62 In studies reviewing the quality of habeas

corpus proceedings filed between September 1995 – the effective date of Article 11.071 and

September 1, 2006,63 the research found that 30% of the habeas petitions filed in this time period

were 30 pages or less in length and 12% were 15 pages or less. The studies concluded that in

nearly a third of the petitions (27%) filed no extra-record claims were presented based on

evidence outside the trial record. The Court of Criminal Appeals rejects such claims out of hand,

as they are appropriate only for direct appeal proceedings. In essence, a petition that raises only

such record claims is the “equivalent of a blank piece of paper - virtually guaranteeing that the

petitioner will be denied relief.”64 The most troubling statistic from this research is that in 38%

of the cases, no extra-record materials were filed with the trial court. The applications therefore

did not reflect that an adequate or any investigation was conducted in the case.65 The study

61
See id. at 114.
62
Texas Defender Service, Lethal Indifference: The fatal combination of incompetent attorneys and
unaccountable courts in Texas death penalty appeals, Dec. 2002 available at www.texasdefender.org.; Keilen and
Levin, Moving Forward, 34 Am. J. Crim. L. at 224.
63
Keilen and Levin, Moving Forward, 34 Am. J. Crim. L. at 224.
64
Texas Defender Service, Lethal Indifference: The fatal combination of incompetent attorneys and
unaccountable courts in Texas death penalty appeals, Dec. 2002 available at www.texasdefender.org.
65
See, e.g., Ex parte Green, Writ No. 61,225 (Tex. Crim. App. Mar. 23, 2005) (19 page petition raising 9
record-based claims).
57
concludes that “as an extra-record investigation is the core of any competent habeas proceeding,

it is fair to say that in 38% of cases reviewed, the inmates’ right to post-conviction review

effectively ended when the petition was filed.”66

Additionally, in October 2006, the Austin American-Statesman published a series of ten

investigative stories documenting Texas’ routine failure to ensure adequate counsel in state

habeas appeals. The Statesman articles detailed “a pattern of feeble death penalty appeals,

demonstrating little or none of the investigation or thoughtful effort required to do the job

right.”67 The investigative series focused on cases handled by six particular habeas attorneys and

described petitions it reviewed as “riddled with misspellings, bad grammar and first-person

rants.”68

In the wake of these studies and reports, the State Bar of Texas took action. In April

2006, the State Bar promulgated comprehensive guidelines for defense attorneys in capital cases

based in large part of the well-recognized standards created by the American Bar Association.69

Further, in October 2006, State Bar President Martha Dickie appointed a 12-member “Task

Force on Habeas Counsel Training and Qualifications.”70 The Task Force was assigned the task

of studying capital habeas practice in Texas, and making recommendations for resolving any

problems identified. The Task Force came out with their findings and recommendations in

66
Keilen and Levin, Moving Forward 34 Am. J. Crim. L. at 228 (2007).
67
Chuck Lindell, Sloppy lawyers failing clients on death row; For 11 years, top Texas court largely
ignored shoddy work as 273 people were executed, AUSTIN AM.-STATESMAN, Oct. 29, 2006.
68
Chuck Lindell, Attorney Cuts, Pastes Convicted Client’s Letter, AUSTIN AM.-STATESMAN, October 29,
2006, at A11.
69
State Bar of Texas, Guidelines and Standards for Texas Capital Counsel, 2006, reprinted at 69 Tex. B.J.
966.
70
Miriam Rozen, Help for Habeas, TEX. LAWYER, November 6, 2006.
58
April, 2007.71 The Task Force “concluded that there are recurring problems which undermine

the integrity of capital habeas practice in the Texas courts,” and found major problems impacting

the capital habeas corpus representation system. The Task Force found that inmates facing the

death penalty are not receiving consistently competent representation. It found that some

lawyers with a history of serious disciplinary problems have been appointed in capital habeas

cases and have failed to meet their obligations to their clients. The Task Force found that some

lawyers have admitted to being inexperienced, unqualified, or overburdened and unable to do the

work required of them. Finally, the Task Force concluded that the lawyers who accept capital

state habeas appointments are unaccountable in the system.

The Task Force made four recommendations, focused on adequate implementation of the

primary need it identified: the establishment of a State Public Defender Office responsible for

representing Texas death sentenced inmates seeking habeas relief in the state courts. In addition

to the recognition of a crisis in the quality of state habeas representation by journalists and legal

organizations including the State Bar of Texas, the judiciary and legislature have also

acknowledged the need for reform.

On December 11, 2006, the Court adopted rules for removal of counsel from the list of

qualified attorneys. Speaking on behalf of the Court, Judge Cathy Cochran stated “It simply was

time to take the bull by the horns. . . . We want to ensure every death row inmate is appropriately

and effectively represented.”72 Subsequently, the Court revised the list of approved attorneys

and significantly shortened the list. However, many lawyers with histories of providing

71
Id.
72
Commenting on the CCA’s recent revised rules permitting the Court to remove attorneys from the list of
counsel eligible for appointment in state habeas proceedings. Robbins, CCA can Boot Counsel from Appointment
List for Indigents, TEX. LAWYER, Vol. 22, No. 42 (Dec. 18, 2006).

59
substandard representation remained eligible – as the Court’s revisions to the list did not result

from any evaluation of prior performance of these attorneys.

Finally, in 2009, after years of criticism about the provision on capital representation in

state habeas corpus proceedings, the Texas legislative passed a bill creating a state-funded Office

of Capital Writs to represent indigent death row inmates in state habeas corpus proceedings.73

The office will begin operations in late 2010 or early 2011. While it is hoped that the office will

have sufficient staffing and funding to adequately represent inmates in critical state habeas

proceedings, the director of the office has not yet been selected. Until the office is operational,

attorneys continue to be appointed pursuant to Article 11.071.

73
Senate bill 1091, http://www.capitol.state.tx.us/tlodocs/81R/billtext/pdf/SB01091F.pdf.
60
 ii. Clemency proceedings

Clemency plays a critical role in ensuring our system of justice is fair and equitable and

provides the last safeguard for the discovery of the wrongly convicted. Clemency is a broad

term for the exercise of executive power to lessen, forgive, or delay the imposition of a

punishment meted out by our criminal justice system. Clemency includes pardons,

commutations, and reprieves.74 Since 1976, 245 clemencies have been granted in the U.S. in

capital cases for humanitarian reasons, including doubts about the defendant's guilt or

conclusions of the governor regarding the death penalty process.75 Only two of the listed 245

cases in which clemency was granted on humanitarian grounds are Texas death penalty cases.76

The critical elements of a high-quality clemency review include: “an accessible public process

that ensures adequate review of the clemency petition, support materials, and input from

affected parties; a uniform, well-understood set of criteria used to judge clemency petitions;

and safeguards to ensure that the party making clemency recommendations is insulated from

political pressure.”77 Recognizing that “[i]t is an unalterable fact that our judicial system,

like the human beings who administer it, is fallible,” the Supreme Court of the United States

has stated its belief that “[e]xecutive clemency has provided the ‘fail safe’ in our criminal

74
For more detailed definitions of clemency types, see 37 Tex. Admin. Code § 141.111 (West 2004).
75
Death Penalty Information Center, Clemency, available at http://www.deathpenaltyinfo.org/clemency.
76
There have also been a number of technical commutations granted for judicial expediency, rather than for
humanitarian reasons. See Michael L. Radelet and Barbara A. Zsembik, Executive Clemency in Post-Furman
Capital Cases, 27 University of Richmond Law Review 289-314 (1993), These sentence reductions for the state's
convenience are not counted among the clemencies for humanitarian reasons, which refer to the normal use of this
term. Texas, for example, has granted a number of recent commutations in the wake of the U.S. Supreme Court
rulings barring the execution of juveniles and of defendants with mental retardation.
77
Texas Appleseed and Texas Innocence Network, The Role of Mercy: Safeguarding Justice in Texas
Through Clemency Reform, 2005, available at www.texasappleseed.net.
61
justice system” ensuring that claims of innocence do not go uninvestigated, and that

offenders are shown mercy as justice requires.78 The American Bar Association has re-

leased guidelines that highlight inadequacies of the clemency system in death penalty cases

and the possibility of ensuring redress through the courts.79 Board meetings, which provide

the opportunity for deliberation, also are a “measure of protection against arbitrary, ill-

considered, or even dismissive decisions.” In order to reduce arbitrary and unpredictable

results in clemency cases, the existence and application of substantive criteria to guide decision-

making is essential to limiting arbitrariness and ensuring that clemency operates as the

intended safeguard within the criminal justice system. Further, most states have established

specialized Boards to process clemency applications. Texas and several other states have

created these Boards through constitutional amendments with some authority over the actual

issuance of clemency relief itself, indicating an intent to establish some independence from

executive control.

Instead of modeling recognized best practices, the Texas system has been sharply

criticized. “It is abundantly clear the Texas clemency procedure is extremely poor and

certainly minimal,” wrote the federal district court in Faulder v. Texas Board of Pardons &

Paroles.80 The Constitution of the State of Texas mandates that the legislature establish a Board

of Pardons and Paroles.81 It vests in the governor the power to grant reprieves, commutations

of punishment, and pardons, but only upon a written and signed recommendation of a
78
Herrera v. Collins, 506 U.S. 390, 415 (1993).
79
ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 1.1 cmt.
C (2003).

80
Faulder v. Texas Board of Pardons and Paroles, No. A98 CA 801 SS (W.D. Tex. Filed Dec. 28, 1998),
aff’d at 178 F.3d. 343 (1999).
81
TEX. CONST. art. IV, § 11(a).
62
majority of the Board.82 The governor may, however, grant one reprieve in a capital case,

not to exceed 30 days in length, even without the recommendation of the Board.83 The

Texas Board of Pardons and Paroles is not required to conduct meetings in any cases,

including those from inmates requesting commutations of and reprieves from their death

sentences. In practice, the Board does not meet or hold public hearings on clemency

applications. Rather, the staff of the Board forwards documentation to the members, and this

provides the basis for the vote.84

Several other features suggest that Texas is not currently fulfilling its responsibility as

the “fail safe,” or safeguard, within the criminal justice system. Instead, evidence of a

profound lack of understanding of the role of clemency exists. In May of 2004, the Board

recommended Mr. Patterson for a commutation of sentence based upon his mental illness;

Governor Perry denied that request, stating the denial was justified because Patterson had

access to courts and counsel.85 But this deference is misplaced. One scholar explains,

“Clemency’s exemption from due process review is traditionally explained by the argument

that clemency is an additional, non-judicial layer of process, providing a forum to raise issues

that were not raised at trial, to catch things that may have been missed by the jury, judge, and

appellate courts, and to allow for mercy on grounds that were not cognizable in court.

Deference to the courts undermines the non-judicial purposes of clemency and is a ‘perversion

82
T EX . C ONST . art. IV, § 11(b).
83
Id.
84
See, e.g., State of Texas Board of Pardons and Paroles 2003 Annual Report, at 24.
85
For example, when denying sentence commutation or a reprieve to Kelsey Patterson in May of 2004, the
governor justified his decision by finding that Patterson’s case had been considered no less than 10 times by the courts
and no judicial relief had been granted. Texas Appleseed and Texas Innocence Network, The Role of Mercy:
Safeguarding Justice in Texas Through Clemency Reform, 2005, available at www.texasappleseed.net.
63
of the governor’s clemency power.’”86

The Texas Board of Pardons and Paroles has not promulgated any list of criteria

that it will consider when making clemency determinations. Neither has the legislature

provided a list of factors that the Board must or should consider when deciding clemency

matters.87 Members of the Texas Board of Pardons and Paroles may be removed by the

governor who appointed them for any reason, rather than only for cause, which compromises

the independence of the Board. Finally, directly limiting its ability to act as an extra layer

of protection against the execution of the innocent, the Texas Board of Pardons and Paroles

maintains very stringent requirements for considering or recommending a person who has

been wrongly convicted for a pardon on the basis of innocence. Although not statutorily

mandated, the Board maintains a rule stating that before any clemency application for a

pardon based on innocence is considered by the Board, it must first have the written recom-

mendation of trial officials, which are the district attorney’s office that prosecuted the case, the

chief of the law enforcement agency that investigated the case, and the judge of the court that

presided over the case.88 The Board of Pardons and Paroles is therefore extraordinary for the

extent to which it has relinquished its prerogative to independently assess evidence of

innocence, instead choosing to rely on other entities—such as the district attorney’s office

and the judiciary—and thereby abandoning its role as a “fail safe” to catch and correct system

mistakes.

86
Alyson Dinsmore, Clemency in Capital Cases: The Need to Ensure Meaningful Review, 2002 U.C.L.A.
Law. Rev. 1825, 1842 (internal citations omitted).
87
Texas Appleseed and Texas Innocence Network, The Role of Mercy: Safeguarding Justice in Texas
Through Clemency Reform, 2005, available at www.texasappleseed.net.
88
Texas Appleseed and Texas Innocence Network, The Role of Mercy: Safeguarding Justice in Texas
Through Clemency Reform, 2005, available at www.texasappleseed.net.
64
 G. Numerous Texas Officials and Agencies Have Expressed Concern About
Many of the Risk Factors Discussed Here But No One HasYet Taken Any
Remedial Action

Though it has not yet enacted the procedural and substantive reforms that would be

necessary to prevent future wrongful convictions, officials in all three branches of Texas

government have formally recognized the risk of wrongful convictions and need for reform. The

Texas legislative, executive, and judicial branches of government have each created entities to

review issues in the criminal justice system based on the potential for mistakes and the need for

improved accuracy.

In 2005, the Chief Justice of the Texas Supreme Court highlighted the need to take action

to prevent erroneous convictions in his annual State of the Judiciary address. He stated “any

wrongful conviction is a tragedy because it leaves the guilty unpunished and condemns the

innocent to prison, or death.”89 He reaffirmed that concern and the need for the formulation of an

innocence commission to study cases and causes of wrongful convictions in both his 200790 and

200991 State of the Judiciary addresses.

In the wake of a spate of wrongful convictions and the debacle at the Houston Police

Department Crime Lab, as well as voluminous research that painstakingly documents the reality

and continued risk that the innocent are punished for crimes they did not commit, four state-

sponsored entities have been created. In 2005, the Texas legislature created and Governor Rick

89
Texas Supreme Court Chief Justice Wallace Jefferson, 2005 State of the Judiciary Speech, available at
http://www.wallacejefferson.com/speech_archive/2005_state_of_the_judiciary/
90
Texas Supreme Court Chief Justice Wallace Jefferson 2007 State of the Judiciary Speech, available at
http://www.wallacejefferson.com/speech_archive/2007_state_of_the_judiciary/
91
Texas Supreme Court Chief Justice Wallace Jefferson, 2009 State of the Judiciary Speech, available at
http://www.supreme.courts.state.tx.us/pdf/2009StateoftheJudiciary.pdf
65
Perry approved the Texas Forensic Science Commission92 and by executive order, Governor

Perry created the Criminal Justice Advisory Council.93 In 2008, the highest criminal court in

Texas, the Texas Court of Criminal Appeals, created a Criminal Justice Integrity Unit.94

Additionally, in 2009, the legislature created the Timothy Cole Advisory Panel on Wrongful

Convictions.95

These four entities all aimed to improve the quality of evidence introduced in criminal

cases in Texas and therefore reduce the instances and risk of wrongful convictions. However,

despite the stated intentions of these entities, not one has yet resulted in the passage of a single

reform measure that would address the well known causes of wrongful convictions. Beyond

that, there have been no changes to the actual, day to day protocol of law enforcement,

laboratories, or courts as a result of new policies formed by these state-sponsored entities.

Texas Forensic Science Commission

In 2005, the Texas legislature passed House Bill 1068 which created the Texas Forensic

Science Commission.96 The legislation was authored by Senator John Whitmire (D-Houston),

chairman of the Senate Criminal Justice Committee, Senator Chuy Hinojosa (D-McAllen) and

Representative Joe Driver (R-Dallas), chairman of the House Law Enforcement Committee.

92
House Bill 1068 available at http://www.capitol.state.tx.us/tlodocs/79R/billtext/pdf/HB01068F.pdf.
93
Executive Order Number RP-41, available at
http://www.lrl.state.tx.us/scanned/govdocs/Rick%20Perry/2005/RP41.pdf.
94
Press Release available at http://www.thejusticeproject.org/wp-content/uploads/cca-tcjiu-press-
release1.pdf.
95
House Bill 498 available at http://www.capitol.state.tx.us/tlodocs/81R/billtext/pdf/HB00498F.pdf.
96
House Bill 1068 available at http://www.capitol.state.tx.us/tlodocs/79R/billtext/pdf/HB01068F.pdf.
66
 The Texas Forensic Science Commission was created for the purpose of developing and

implementing a reporting system through which laboratories conducting forensic analysis in

criminal cases can report professional negligence. Forensic analysis includes the examination of

medical, chemical, toxicological, ballistic and DNA evidence. The commission’s primary

function is to review allegations of past forensic negligence and misconduct and recommend

corrective action. The mandated tasks for the commission are largely reactive – they review

complaints of potential violations that have already occurred. The commission is comprised of

nine members, four of whom are appointed by the governor, three members appointed by the

lieutenant governor, and two members appointed by the state attorney general.97

After its creation, the Commission endeavored to inquire into the flawed arson evidence

in the case of Cameron Todd Willingham, a man who was executed after his three children died

in a fire. To that end, the Commission hired an independent, nationally recognized arson

investigator who determined that there was no credible evidence that the fire which killed

Willingham’s children was arson. Expert Craig Beyler concluded in a written report that the

testimony against Willingham at trial was based on discredited arson science and incorrect

assumptions about how fire behaves.98

Progress of the Commission to consider this case and make reform recommendations in

this forensic field was delayed in October 2009 when, two days before arson expert Craig Beyler

was scheduled to present his findings in person to the Commission, the Commission’s meeting

was cancelled. Governor Perry abruptly and without explanation removed two commission

97
The list of commission members can be found at http://www.fsc.state.tx.us/commission_members.html.
98
Available at http://www.docstoc.com/docs/document-preview.aspx?doc_id=10401390
67
members, including then-chairman Sam Bassett.99 Governor Perry replaced Bassett with

Williamson County elected District Attorney John Bradley, who cancelled the hearing100 and

other meetings of Commission members that were planned around the state to discuss forensic

issues with stakeholders in the criminal justice system. In the following weeks, Governor Perry

replaced all four commissioners who are subject to gubernatorial appointment.

While the commission was created nearly five years ago, the current Chairman of the

commission describes the commission as “still in its infancy” and states that “actual work by the

Commission began only two years ago.”101 Reflecting the accuracy of the Chairman’s words is

the fact that no proactive or substantive recommendations, model protocol or procedures, or any

other actual reform has been promulgated by the Commission. While they have rejected several

complaints that fall outside of the scope of their mandate, they have yet to complete even one

investigation of the cases they have accepted.

Governor Perry’s Criminal Justice Advisory Council

In March 2005, Governor Rick Perry created the Criminal Justice Advisory Council

(CJAC) by executive order.102 CJAC was comprised of nine members who served at the

pleasure of the Governor. Its duties included advising the Governor on “procedures that are

needed to meet advances in technology including matters of investigation, forensic testing, and

the related appellate and post-conviction legal process, methods of ensuring that local and state

99
Christy Hoppe, Inquiry into Flawed Arson Case that Led to Execution on Hold, Dallas Morning News,
Oct. 7, 2009.
100
Id.
101
Open letter, Texas Forensic Science Commission: A Work in Progress, by Chairman John Bradley
available at http://www.fsc.state.tx.us/documents/TFSCEDITORIAL.pdf.
102
Executive order available at http://www.lrl.state.tx.us/scanned/govdocs/Rick%20Perry/2005/RP41.pdf.
68
law enforcement investigation procedures are accurate and reliable, . . . and changes in law

necessary to improve the criminal justice system.”103 In his executive order, the Governor

instructed the CJAC to take input from law schools, prosecutors, defense attorneys, and law

enforcement and to submit annual reports to the Texas legislature.104 In February 2006, CJAC

released its first report which enumerated recommendations in several areas including forensics

and technological assistance.105 The report urged changes in state law to broaden access to post-

conviction DNA testing and recommended an influx of resources to the Department of Public

Safety to conduct forensic testing and provide new equipment. CJAC also stated areas requiring

additional study which included increased funding for public defenders in capital murder cases

and improvements to eyewitness identification procedures.106 Reiterating the mission of CJAC,

at the time the report was released, Governor Perry stated “my purpose in creating the council

was to examine how Texas can improve its criminal justice system, so that we might better

protect the rights of both victims and the accused. These recommendations provide a framework

that will give Texans greater confidence in a justice system designed to protect all.”107

Despite the requirement of annual reporting and no official disbanding of the Council, the

January 2006 report is the last report prepared by CJAC. Based on the lack of meetings and

reports, and for reasons which have not been publicly explained, it appears that CJAC is not

continuing its work at the present time.

103
Id.
104
Id.
105
Press release available at http://governor.state.tx.us/news/press-release/2498/.
106
Id.
107
Id.
69
Texas Criminal Justice Integrity Unit

In the wake of the discovery of numerous wrongful convictions in Texas, on June 3,

2008, the Texas Court of Criminal Appeals through Judge Barbara Hervey, established the Texas

Criminal Justice Integrity Unit (hereinafter TCJIU or the “Unit”).108 Comprised of legislators,

judges, police representatives, prosecutors, and defense attorneys the Unit was created to focus

on issues related to the prevention of wrongful convictions including improving the quality of

defense counsel, implementing procedures to improve eyewitness identification, reforming

standards for the collection, storage, and preservation of evidence, improving crime lab

reliability, and eliminating improper interrogation techniques to protect against false

confessions.109 The Court called the establishment of the Unit “a call to action to address the

growing concerns with our criminal justice system,” and stated that “it is now time to act and

move for reform.”110

The Unit began meeting in August of 2008 and produced an initial report of its efforts

and findings in early 2009.111 The report documented that the Unit had facilitated increased

attorney, judicial, and judicial clerk training on the collection and storage of evidence and

assisted in the planning of forensic science seminars. The report also stated its findings about the

need for specific reform measures in Texas to reduce the instances of wrongful convictions.

Among them, the Unit “recognizes that one of the leading causes of false convictions is

108
Press Release available at http://www.thejusticeproject.org/wp-content/uploads/cca-tcjiu-press-
release1.pdf
109
Id.
110
Id.
111
Available at http://www.ojp.usdoj.gov/BJA/topics/Plenary3/R_Ellis1-TX_CriminalJusticeIntegrity.pdf
70
erroneous eyewitness identifications. TCJIU urges the legislature to address this issue during

this session of the legislature. It is the position of the TCJIO that instituting reforms in the

eyewitness identification procedures used by law enforcement agencies throughout Texas should

have the highest priority of any efforts in the area of wrongful convictions.” (emphasis added).

The Unit also recognized the need for improved discovery standards, increased training for

public defenders, and better evidence testing and storage protocol.112 To date none of these

reforms have been implemented.

In March 2010, the Unit released its second report summarizing the work of the Unit

during 2009.113 One of the activities of the Unit included a statewide survey of the judiciary’s

reaction to the National Academy of Sciences (NAS) report. The report notes that “the survey

revealed that judges are not receiving enough training on forensic science and the standards for

admissibility of scientific evidence.”

While the Unit participated in important training developments for judges and lawyers

and clearly urged the Texas Legislature to enact reforms, the Unit itself has not resulted in any

substantive changes to protocol, procedures, or statutes in Texas.

Timothy Cole Advisory Panel on Wrongful Convictions

In 2009, the Texas legislature passed House Bill 498 authored by Representative

McClendon (D-San Antonio) and Senator Ellis (D-Houston), establishing the Timothy Cole

Advisory Panel on Wrongful Convictions (the Panel).114 The Panel was established under the

112
Id.
113
Report available at http://www.cca.courts.state.tx.us/tcjiu/reports/TCJIU-2009-report.pdf.
114
House Bill 498 available at http://www.capitol.state.tx.us/tlodocs/81R/billtext/pdf/HB00498F.pdf.

71
umbrella of the Texas Task Force on Indigent Defense to assist the Task Force by studying and

preparing a report regarding the causes of wrongful convictions, procedures designed to prevent

future wrongful convictions, the effects of state law on wrongful convictions, and the

advisability of the creation of an innocence commission to investigate specific cases of wrongful

convictions.115

The Panel was named after Timothy Cole, who was wrongly convicted and sentenced to

25 years in prison for the 1985 rape of 20-year-old Michele Mallin. Cole was convicted of the

crime after being identified by the victim as her attacker. Cole’s picture was the only color

Polaroid photo in a group of five black and white mug shots. Cole maintained his innocence

from the start of the case and another man, Jerry Wayne Johnson, attempted to confess for the

crimes for which Cole had been convicted, but those statements were ignored.116

In 1999, Tim Cole died in prison after suffering a severe asthma attack. Posthumous

DNA testing revealed that in fact Cole was innocent of the crime and the other man, Jerry Wayne

Johnson, was the rapist. As a result, Cole was exonerated and granted a posthumous pardon by

Governor Rick Perry in March 2010.117

While the ten-member panel has begun meetings and is studying the main factors known

to cause inaccurate results in criminal cases – including eyewitness identification procedures,

videotaping of interrogations, and the regulation of criminal case discovery, it has not yet made

any recommendations for reforms aimed at reducing the risk of wrongful convictions. It is

115
Id. See, Texas Task Force on Indigent Defense, TCAP, available at
http://www.courts.state.tx.us/tfid/tcap.asp.
116
Convicting the Innocent: Texas Justice Derailed: Stories of Injustice and the Reforms That Can Prevent
Them, The Justice Project, available at www.thejusticeproject.org.
117
Statement of Governor Rick Perry, available at http://governor.state.tx.us/news/press-release/14312/.
72
anticipated that a report will be prepared by the Panel prior to the 2011 Texas Legislative

Session.

Accordingly, while there is much hand-wringing in Texas government about the

pervasive risk of wrongful conviction in Texas capital cases, nothing has been done ameliorate

the risk.

V. THE RISK OF WRONGFUL CONVICTION IN TEXAS IS EPITOMIZED BY

THE TALE OF TWO ARSON-MURDER CASES

Luck. Luck should say who wins a card game, not who gets executed. But luck proved

the difference in the fates of Ernest Ray Willis and Cameron Todd Willingham. Texas convicted

both men of murder by arson and sentenced both men to death -- Willingham in 1992,118 Willis

in 1987.119 In neither case did the State rely on eyewitness testimony, confessions, or any type of

valid forensics evidence. Instead, both men were convicted based merely on their alleged

“indifference” to the suffering of victims at the scene of a fatal fire, and the testimony of

investigators who what has now proven to be “poor understandings of fire science and failed to

acknowledge or apply the contemporaneous understanding of the limitations of fire indicators.”

Craig L. Beyler, Analysis of the Fire Investigation Methods and Procedures Used in Criminal

Arson Cases Against Ernest Ray Willis and Cameron Todd Willingham, Submitted to Texas

Forensic Science Commission, Aug. 17, 2009 (hereinafter “Beyler Report”). In other words,

both men were convicted and sentenced to death based on what we now know to be junk fire

science. But their cases could not have ended more differently: Texas executed Willingham in

2004. That same year, Willis walked free.

118
Willingham v. State, 897 S.W.2d 351 (Tex.Crim.App. 1995).
119
See Willis v. State, 785 S.W.2d 378, 387 (Tex.Crim.App.1989).
73
 Willis was lucky, Willingham not. During Willis’s post-conviction proceedings, Latham

and Watkins, a giant New York based law firm, became his attorneys. See Latham and Watkins,

Pro Bono Annual Report at 17 (available at

http://lw.com/upload/pubContent/_pdf/pub1328_1.pdf) (as visited on April 12, 2010). Latham

and Watkins reportedly spent in excess of one million dollars to prevent Texas from executing

Willis and to win his freedom. Michael Hall, Death Isn’t Fair, TEXAS MONTHLY, Dec. 2002, at

167. At Willis’s trial, State fire investigators testified that Willis must have set the fire by

spreading an accelerant, possibly gasoline, in various parts of the home. Willis v. Dretke, 2004

WL 1812698, *9 (W.D. Tex.). The investigators based this theory on burn-pour patterns they

found in the home and the intensity of the damage wrought by the fire. Beyler Report at 18, 22,

29. During state post-conviction proceedings, Latham and Watkins engaged a fire expert who

destroyed this theory. Willis’s expert determined that “the pour pattern theory was physically

impossible, and that the burn damage to the house could not have been caused by an accelerant

such as gasoline.” 2004 WL 1812698, *10. The expert found that “the burn damage throughout

the house,” which the State attributed to the use of an accelerant, “was the result of ‘flashover’

conditions throughout the house during various points in the fire.” Id. Flashover is not caused

by an accelerant, but by materials in the home reaching an ignition point due to the heat from gas

clouds formed under a ceiling. Id. at *10 n.47. See also Beyler Report at 7.

Willis was not only lucky to be represented by Latham and Watkins. After Willis had

been on death row for four years, the true culprit, also in prison, stepped forward and confessed

to a prison psychiatrist. Willis, 2004 WL 1812698, *10. Turning a blind eye to this evidence

showing Willis’ innocence, the State defended its conviction and death sentence successfully

through state post-conviction proceedings. Ex Parte Willis, No. 27, 787-01, Order at 2
74
(Tex.Crim.App.2000). But lucky for Willis, his lawyers at Latham and Watkins had also

demonstrated that the State violated Willis’ constitutional rights at trial, and they finally

prevailed in federal habeas corpus proceedings on four different grounds.120

After the federal district court ordered a new trial for Willis, the State (now represented

by a new district attorney) dropped all charges against him and he was freed. See

http://www.deathpenaltyinfo.org/innocence-cases-2004-present.

Willingham was executed because he lost in the lottery of assigned counsel and his

demonstration that he, too, was convicted on junk fire science fell on the deaf ears of the Texas

Board of Pardons and Parole. Willingham, too, was convicted on the testimony of fire

investigators who found burn patterns, and intense damage to the home, leading them falsely to

suspect arson by accelerants spread at those points. Beyler Report at 33, 34, 48. But

Willingham did not have a large firm to represent him. See generally David Grann, Trial by

Fire, NEW YORKER, Sept. 9, 2009 (“In 1996, he obtained a new court-appointed lawyer, Walter

Reaves . . .”). He did not have the support of hundreds of thousands of dollars in resources.

Willingham was represented at all stages of his case, including in post conviction, by appointed

counsel with little resources. Id. When a qualified expert, Dr. Gerald Hurst, finally took a look

at the case, he found exactly the same junk science the Beyler Report outlined. See id. As the

Beyler Report stated, the fire “science” used to convict Willingham was “nothing more than a

collection of personal beliefs that have nothing to do with science-based fire investigation.”

Beyler Report at 50. Willingham’s attorney forwarded Hurst’s report to the Texas Board of

120
“Specifically, the [c]ourt grant[ed] Willis's petition on the following grounds: 1) Willis's due process
rights were violated by the State's administration of medically inappropriate antipsychotic drugs without Willis's
consent; 2) the State suppressed evidence favorable and material to the sentencing determination; 3) Willis received
ineffective assistance of counsel at the guilt-innocence phase; and 4) Willis received ineffective assistance of
counsel at the sentencing phase.” Willis, 2004 WL 1812698, *1.
75
Pardons and Parole, but the board unanimously denied Willingham’s petition for clemency.

David Grann, Trial by Fire, NEW YORKER, Sept. 9, 2009. The governor did not intervene, and

Willingham was executed.

Willingham and Willis were both convicted on the same junk fire science. Once the

evidence was shown to be the fraud that it is, no prosecutor could put the case back together.

The difference is this: in Willingham, the State did not have to put the case back together.

Willingham was convicted and had no more appeals by the time he proved the State’s case a

fraud. The State could carry forward with its execution. Willis was lucky enough to obtain

relief on other points due in large part to the help of Latham and Watkins. The State could not

execute Willis, could not even incarcerate him, without putting the case back together. They

could not. One man was executed by the State of Texas and one man was freed based only on

luck. This the Eighth Amendment cannot tolerate.

CONCLUSION

Based on extensive investigation, Professor Gross has estimated that 2.3% of people

sentenced to death in the United States between 1973 and 1989 have been exonerated. Samuel

R. Gross, Convicting the Innocent, THE SOCIAL SCIENCE RESEARCH NETWORK

ELECTRONIC PAPER COLLECTION: http://ssrn.com/abstract=1100011, at p. 6 (2/28/08). In

Texas, there have been 1060 death sentences since 1974. See

http://www.tdcj.state.tx.us/stat/deathrow.htm (as visited on April 11, 2010). Assuming

exonerations in Texas occur at least at the frequency as the nationwide average, Professor

Gross’s statistics would suggest that some 24 death-row inmates should have been exonerated in

this same era. (1060 * .0023). Yet it appears that only eleven have been exonerated. See

http://www.deathpenaltyinfo.org/innocence-and-death-penalty#inn-st (as visited on April 12,

76
2010). The risk factors outlined in this pleading, and to be demonstrated at the hearing, show, if

anything, that the risk of sentencing to death an innocent person in Texas is higher than in other

states. These figures thus troublingly demonstrate an unacceptable risk that Texas’ system fails

to identify innocents before it is too late. This risk violates the Eighth Amendment.

WHEREFORE, Mr. Green respectfully requests that the Court hold an evidentiary

hearing and thereafter, declare the Texas death penalty as applied in violation of the Eighth

Amendment and the Texas Constitution.

Respectfully submitted,

JOHN P. KEIRNAN
SBN: 11184700
917 Franklin, Ste. 550
Houston, Tx 77002
713-236-9700
713-236-1802

ROBERT K. LOPER
SBN: 12562300
111 West 15th Street
Houston, Tx 77008
713-880-9000 (office)
713-869-9912 (fax)

RICHARD BURR
SBN: 24001005
PO Box 525
Leggett, Tx 77350
713-628-3391
713-893-2500 (fax)

By____________________
Richard H. Burr

ATTORNEYS FOR
DEFENDANT

77
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document has been hand delivered
to the District Attorneys’ Office, on ______________, 2010.

____________________________
JOHN P. KEIRNAN

78
Appendices

1. Affidavit of Richard Dieter, Executive Director, Death Penalty Information Center

2. Samuel R. Gross, The Risks of Death: Why Erroneous Convictions Are Common in Capital
Cases, 44 Buff. L. Rev. 469 (1996)

3. Susan D. Rozell, The Principled Executioner: Capital Juries’ Bias and the Benefits of True
Bifurcation, 38 Ariz. St. L.J. 769 (2006)

4. Craig Haney, The Biasing Effect of the Death-Qualification Process, 8 Law and Human Behavior,
121 (1984)

5. William J. Bowers, Marla Sandys, & Benjamin Steiner, Jurors’ Predispositions, Guilt-Trial
Experience, and Premature Decision Making, 83 Cornell L. Rev. 1476 (1998)

6. Rob Walters, Michael Marin, & Mark Curriden, Are We Getting a Jury of Our Peers?,” 68 Tex. B.
J. 144, 145 (Feb. 2005)

7. The Justice Project, Eyewitness Identification, A Policy Review, available at

http://www.texasappleseed.net/content/index.php?option=com_content&task=view&id=4&Itemid
=132#report

8. The Justice Project, Eyewitness Identification Procedures in Texas (Nov. 2008), available at
http://www.thejusticeproject.org/wp-content/uploads/texas-eyewitness-report-final2.pdf

9. The Justice Project, Electronic Recording of Custodial Interrogations, A Policy Review (2007),
http://www.thejusticeproject.org/wp-content/uploads/polpack_recording-fin2.pdf

10. The Justice Project, Electronic Recording of Custodial Interrogations in Texas: A Review of
Current Statutes, Practices, and Policies (2007), available at
http://www.thejusticeproject.org/wp-content/uploads/texas_recording_write-up.pdf

11. Alexandra Natapoff, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37
Golden Gate U. L. Rev. 107 (2006)

12. Executive Summary, Strengthening Forensic Science in the United States: A Path Forward
(National Research Council 2009).

13. The Justice Project, Jailhouse Snitch Testimony: A Policy Review (2007), available at:
http://www.thejusticeproject.org/wp-content/uploads/pr-in-custody-informant-testimony.pdf

14. Report of the Council to the Membership of the American Law Institute on the Matter of the
Death Penalty (ALI Apr. 15, 2009)

15. Texas Defender Service, Moving Forward: A Map for Meaningful Habeas Reform in Texas
Capital Cases

16. Texas Defender Service, Lethal Indifference: The fatal combination of incompetent attorneys and
unaccountable courts in Texas death penalty appeals, (Dec. 2002), available at
http://02f2fd4.netsolhost.com/tds/images/publications/chapters.pdf

17. Andrea Keilen and Maurie Levin, Moving Forward, A Map to Meaningful Habeas Reform in
Texas Capital Cases, 34 Am. J. Crim. L. 207 (2007).
79
18. State Bar of Texas Task Force on Habeas Counsel Training and Qualifications, Task Force
Report (April 2007)

19. State Bar of Texas, Guidelines and Standards for Texas Capital Counsel, reprinted at 69 Tex. B.J.
966 (2006)

20. The Justice Project, Improving Access to Post-Conviction DNA Testing: A Policy Review (2008),
available at http://www.thejusticeproject.org/wp-content/uploads/post-convictiondna-fin.pdf

21. The Justice Project, Expanded Discovery in Criminal Cases: A Policy Review (2007), available at
http://www.thejusticeproject.org/~jmiller/wp-content/uploads/polpack_discovery-hirez-native-
file.pdf

22. Texas Appleseed Project, The Role of Mercy (2005), available at

http://www.texasappleseed.net/content/index.php?option=com_content&task=view&id=4&Itemid
=132#report

23. Convicting the Innocent: Texas Justice Derailed: Stories of Injustice and the Reforms That Can
Prevent Them, The Justice Project, available at http://www.thejusticeproject.org/convicting-the-
innocent/ and http://www.thejusticeproject.org/texas/convicting-the-innocent-the-latest-texas-
exonerations/

24. Texas Criminal Justice Integrity Unit, 2008 Report of Activities, available at
http://www.ojp.usdoj.gov/BJA/topics/Plenary3/R_Ellis1-TX_CriminalJusticeIntegrity.pdf

25. Texas Criminal Justice Integrity Unit, 2009 Report of Activities, available at
http://www.cca.courts.state.tx.us/tcjiu/reports/TCJIU-2009-report.pdf

26. Michael Bromwich, Final Report of the Independent Investigator for the Houston Police
Department Crime Laboratory and Property Room, June 13, 2007, available at
http://www.hpdlabinvestigation.org/reports/070613report.pdf

27. Texas Supreme Court Chief Justice Wallace Jefferson, 2005 State of the Judiciary Speech,
available at http://www.wallacejefferson.com/speech_archive/2005_state_of_the_judiciary/

28. Texas Supreme Court Chief Justice Wallace Jefferson 2007 State of the Judiciary Speech,
available at http://www.wallacejefferson.com/speech_archive/2007_state_of_the_judiciary/

29. Texas Supreme Court Chief Justice Wallace Jefferson, 2009 State of the Judiciary Speech,
available at http://www.supreme.courts.state.tx.us/pdf/2009StateoftheJudiciary.pdf

30. Executive Order Number RP-41 (Mar. 14, 2005), available at

http://www.lrl.state.tx.us/scanned/govdocs/Rick%20Perry/2005/RP41.pdf

31. Texas Legislature, House Bill 1068, available at

http://www.capitol.state.tx.us/tlodocs/79R/billtext/pdf/HB01068F.pdf

32. Media Advisory, Office of the Judge Barbara Hervey, Texas Court of Criminal Appeals (June 3,
2008), available at http://www.thejusticeproject.org/wp-content/uploads/cca-tcjiu-press-
release1.pdf

33. Texas Legislature, House Bill 498, available at

http://www.capitol.state.tx.us/tlodocs/81R/billtext/pdf/HB00498F.pdf
80
34. Members of the Texas Forensic Science Commission, available at
http://www.fsc.state.tx.us/commission_members.html

35. Craig L. Beyler, Ph.D., Analysis of the Fire Investigation Methods and Procedures Used in the
Criminal Arson Cases Against Ernest Ray Willis and Cameron Todd Willingham (Submitted to
Texas Forensic Science Commission Aug. 17, 2009), available at
http://www.docstoc.com/docs/document-preview.aspx?doc_id=10401390

36. Open letter, Texas Forensic Science Commission: A Work in Progress, by Chairman John Bradley
available at http://www.fsc.state.tx.us/documents/TFSCEDITORIAL.pdf

37. Press release, Governor’s Advisory Council Recommends Changes to Criminal Justice System
(Feb. 7, 2006), available at http://governor.state.tx.us/news/press-release/2498/

38. Texas Task Force on Indigent Defense, Timothy Cole Advisory Panel on Wrongful Convictions,
available at http://www.courts.state.tx.us/tfid/tcap.asp

39. Statement of Governor Rick Perry, available at http://governor.state.tx.us/news/press-

release/14312/

40. American Bar Assn. and New York County Lawyers Association, Report to the House of
Delegates

81