Scheduled execution
The State of Texas is scheduled to put Raphael Holiday to death on November 18, 2015.  He was convicted of the arson murders of three young children in 2000 in Madison County.

If the execution scheduled for November 18 goes forward, TCADP Houston Chapter will hold the Houston vigil at 5:45 pm in front of St. Stephen's Episcopal Church at the corner of West Alabama and Woodhead. We are changing locations because of the construction at the corner of Holcombe and Almeda.  

The State of Texas accounts for 12 of the 25 executions nationwide this year.  Four executions are scheduled for the early months of 2016.

Although we pretend otherwise, much of what we do in the law is guesswork.

In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has now been undermined by experience, legal scholarship and common sense. What I have listed below are some of the reasons to doubt that our criminal justice system is fundamentally just.

Here are just a few examples:

1. Eyewitnesses are highly reliable.
   This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event—which pretty much covers all situations where identity is in dispute at trial. In fact, mistaken eyewitness testimony was a contributing factor in more than a third of the wrongful conviction cases contained in a database maintained by the National Registry of Exonerations.

1. Fingerprint evidence is foolproof.
   Not so. Identifying prints that are taken by police using fingerprinting equipment and proper technique may be a relatively simple process, but latent prints left in the field are often smudged and incomplete, and the identification process becomes more art than science. When tested by rigorous scientific methods, fingerprint examiners turn out to have a significant error rate [PDF]. Other types of forensic evidence have also been called into question by recent scholarship.

1. Human memories are reliable.
   Much of what we do in the courtroom relies on human memory. When a witness is asked to testify about past events, the accuracy of his account depends not only on his initial perception, but on the way the memories are recorded, stored and retrieved. For a very long time, it was believed that stored memories were much like video tape or film—an accurate copy of real-word experience that might fade with the passage of time or other factors, but could not be distorted or embellished. Science now tells us that this view of human memory is fundamentally flawed. The mind not only distorts and embellishes memories, but a variety of external factors can affect how memories are retrieved and described [PDF].

1. Innocent people never confess.
   Innocent people confess with surprising regularity. Harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the ordeal, emotional and financial exhaustion, family considerations and the youth or feeble-mindedness of the suspect can result in remarkably detailed confessions that are later shown to be utterly fals

1. Police are objective in their investigations.
   In many ways, this is the bedrock assumption of our criminal justice process. Police investigators have vast discretion about what leads to pursue, which witnesses to interview, what forensic tests to conduct and countless other aspects of the investigation. Police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted. Indeed, there are countless documented cases in which innocent people have spent decades behind bars because the police manipulated or concealed evidence.

1. Guilty pleas are proof of guilt.
   Many people, including judges, take comfort in knowing that an overwhelming number of criminal cases are resolved by guilty plea rather than trial. Whatever imperfections there may be in the trial and criminal charging process, they believe, are washed away by the fact that the defendant ultimately consents to a conviction. But this fails to take into account the trend of bringing multiple counts for a single incident—thereby vastly increasing the risk of a life-shattering sentence in case of conviction—as well as the creativity of prosecutors in hatching up criminal cases where no crime exists and the overcriminalization of virtually every aspect of American life. It also ignores that many defendants cannot, as a practical matter, tell their side of the story at trial because they fear being impeached with prior convictions or other misconduct.

1. Prosecutors play fair.
   The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely to obtain a conviction. It has also laid down some specific rules about how prosecutors, and the people who work for them, must behave—principal among them that the prosecution turn over to the defense exculpatory evidence in the possession of the prosecution and the police. Most prosecutors play fair, but not all of them do [PDF]. And when they don’t, it can lead to disastrous consequences.

1. Long sentences deter crime.
   In the United States, we have over 2.2 million people behind bars. Our rate of approximately 716 prisoners per 100,000 people is the highest in the world [PDF], over 5 times higher than that of other industrialized nations like Canada, England, Germany and Australia. Sentences for individual crimes are also far longer than in other developed countries. For example, an individual convicted of burglary in the United States serves an average of 16 months in prison, compared with 5 months in Canada and 7 months in England. It is expensive for US taxpayers, as the average cost of housing a single prisoner for one year is approximately $30,000 [PDF]. A 20-year sentence runs into something like $600,000 in prison costs alone.

We in the United States have committed to a system of harsh sentencing because we believe that long sentences deter crime and, in any event, incapacitate criminals from victimizing the general population while they are in prison. It’s true that the United States is enjoying an all-time low in violent crime rates, which would seem to support this intuition.

But crime rates have been dropping steadily since the 1990s, and not merely in the United States but throughout the industrialized world. Our intuition about harsh sentences deterring crime may thus be misguided. We may be spending scarce taxpayer dollars maintaining the largest prison population in the industrialized world, shattering countless lives and families, for no good reason.

This article is an edited excerpt of Alex Kozinski’s earlier article “Criminal Law 2.0,” which was published at 44 Georgetown Law Journal Annual Review of Criminal Procedure, at iii (2015).

In Unprecedented Change, No Death Sentences in Texas in First Half of Year
Friday, June 26, 2015

Texas, the nation's top state for using the death penalty, has not added a
single person to its death row so far this year, which is unprecedented.

Prior to 2015, the longest span Texas had gone was only three months,
according to Kathryn Kase, executive director of the Texas Defender Service,
a nonprofit organization of death penalty attorneys.

"This is the longest we've gone in a calendar year in Texas without a new
death sentence," Kase told the Texas Tribune.

Last year, Texas added only 10 prisoners to death row, quite a drop from
2000 when 40 were sentenced to execution.

The adoption of a law in 2005 that gave state prosecutors the option of
pursuing life-without-parole sentences in capital murder cases has clearly
had an effect. Since then, the size of Texas' death row has been shrinking.
It currently stands at 260 individuals, down from 460 in 1999. The death row
population is now dwarfed by the number of people serving a
life-without-parole sentence in the state: 745.

So far this year, Texas courts have had three cases that had the potential
to hand down a death penalty sentence, according to Kase, but all of them
resulted in life-without-parole decisions.

-Noel Brinkerhoff

http://www.allgov.com/news/unusual-news/in-unprecedented-change-no-death-sentences-in-texas-in-first-half-of-year-150626?news=856816

Back to Square 1
Many of us in Houston have seen the news of Alfred Dewayne Brown.  He was recently released from death row after having his conviction overturned.  There was significant alibi evidence withheld by the authorities in prosecuting him and he has consistently maintained his innocence.  

Even after his release Harris County District Attorney Devon Anderson, Houston Police Chief Charles McClelland and Joe Grimaldi of the Houston Police Officers Union still maintain that they have the correct suspect in the murder of Officer Charles Clark and yet at the same time maintain that the evidence is not sufficient to obtain a conviction beyond a reasonable doubt.  They fear that if her were retried, he would be acquitted.  If they think that Mr. Brown is responsible, then they should try him.  If they believe that the evidence is not sufficient then they should keep their mouths shut, apologize to Mr. Brown for hiding evidence and reinvestigate the case.  If the evidence is not sufficient to prove his guilt, then Mr. Brown remains innocent.  Their continuing to stand at the microphone and write checks that they can’t cash, means that they need to be disillusioned substantially.

The way our criminal law system works is that upon arrest and being charged with a crime, the defendant begins at the starting point that is the presumption of innocence.  They remain innocent through the length of the case until there is a conviction entered into their criminal record.  This means that they are legally guilty (though maybe not scientifically or factually guilty).  However then the conviction is reversed (on whatever grounds) the defendant then reverts back to the original presumption of innocence that they started from before the case began.  Everyone starts off with this presumption of innocence and it is not the job or the defense team to prove innocence.  The prosecution must prove guilt.  Our system is not setup in a manner where one has to prove themselves innocent and most rational people would not want to live in a society that does have this system.  There is no verdict in our system that established innocence because we start the case off from that point to prove guilt.

Mr. Brown now that his conviction has been discarded, returns to the same presumption of innocence that everyone else has.  

This reminded me of horrid episode back in 2011 when Anthony Graves was similarly released from prison and applied for compensation from the state comptroller.  While I think he would have been better off suing the state on more than a dozen human rights violations (including attempted murder and torture), Mr. Graves instead chose to submit an application for compensation under the pittance of statutes that the Texas Legislature has enacted.  Comptroller Susan McCombs refused to process his application because in the order releasing him and overturning his conviction the word “innocence” was not present.  She failed to realize that it was never Mr. Graves responsibility to prove his innocence and in the absence of a conviction, Mr. Graves always had his innocence.  Again, in the absence of the conviction the defendant still retains the human right of innocence until proven guilty.

I imagine that Mr. Brown will also have a similar struggle with the state to receive compensation (of which I would recommend a civil suit for greater damages).  

We will be living in a very sad state when we have to prove our own innocence.

Lee Baird