Laura Lark and Otis Ike : Pictures at an Execution

Demonstrators protest the death penalty at the Huntsville Unit in Huntsville, Texas, Wednesday, June 26, 2013. Kimberly McCarthy was put to death, the 500th execution by the State of Texas. Photo by Otis Ike / The Rag Blog.

Pictures at an execution:
Texas hits the 500 mark

I felt like a player without a team, an interloper, an uninvited party guest. Nothing felt portentous or grave, just awkward.

By Laura Lark / The Rag Blog / July 8, 2013

See gallery of photos by Otis Ike, Below.

HUNTSVILLE, Texas -- It seems that Kimberly McCarthy’s execution by lethal injection at Huntsville State Penitentiary should have been a more, well, special occasion. It was, after all, a record-breaking 500th execution in the state of Texas, and McCarthy’s credentials: female, African-American, the ex-wife of a Black Panther -- lent the affair everything it needed for a truly charged and politicized scene.
Patrick Bresnan and I, both residents of nearby Houston, expected something extreme. Maybe sinister. Violent. Redemptive.

It was, rather, despite the presence of a few megaphone-wielding Panthers decrying white devils, Rick Perry, in particular, the protesting on the anti-death penalty side was pretty lackluster.

The five women on the pro-death penalty side weren’t much more interesting, either, and it was an odd mix: a biracial lesbian couple from Houston, the wife of a corrections officer, her mother-in-law, and her little girl.

“It’s her second execution,” the woman beamed, bouncing her fat, pink-and-white-frocked child on one hip.

The kid was two and probably ready for a nap. I nodded, looking back and forth from one self-satisfied face to the next.

I felt like a player without a team, an interloper, an uninvited party guest. Nothing felt portentous or grave, just awkward. Walking back and forth from one side to the other, I had my photo taken near the “Be a corrections officer!” recruitment sign a few times.

It seemed fitting.

Perhaps it was the hundred degree heat and stifling humidity; perhaps, post-Occupy Wall Street, demonstrators understand how truly futile efforts are against the system. Whatever the case, neither side demonstrated much energy. It all came off as practical, perfunctory.

It didn’t matter whether people were pleading for forgiveness or demanding an eye for an eye, even the angriest and most passionate did nothing to provoke the line of stern, Stetson-sporting armed officers on the other side of the tape.

Relatively peaceful protesting never appeared more resigned, rote, or pointless.

It wasn’t much of a show. And then it was over: Kimberly McCarthy was declared dead.

Even the following scene -- one that should have been shocking and cinematic -- in which a chubby guy in a white button shirt, a tie designed to look like a Texas state flag, and a pair of dark shades, following the announcement of McCarthy’s passing, strode from officer to officer and gave each a firm, congratulatory handshake.

A big high-five.

Even holding hands with the most vocal of the protestors and praying didn’t change much for me. I recall looking at all of the faces of the angry and sorrowful and horrified and feeling as if nothing, anywhere, had or would ever change. As always in these situations, I felt lazy, ineffectual, and impotent. I walked away feeling as if I’d eaten dirt.

Immediately afterwards, Patrick Bresnan and I, along with the penitentiary chaplain and three associated with the deceased, arrived at the funeral home to view McCarthy’s body. One of the women, a relative, recognized me from earlier that afternoon.

“Please,” she said, leading Patrick and me to the body, “Touch her.” Noticing my reticence, she took my hand. “Please. She didn’t touch hardly anybody for the whole time she was on death row. She would have wanted to be touched.”

The woman guided my hand over the dead woman’s face and head. I looked at her grayish, lifeless face -- something neither good nor evil. Just dead.

The chaplain smiled, telling us that she left at peace with herself and the world. That her final words were, “God is good.”

With my hand to the ashen cheek of Kimberly McCarthy, I felt shame and pain and sorrow and loss throughout my entire body. For the first time that day, the waste of a human life and the lost possibility of redemption truly overwhelmed me. I found myself unable to stop crying.

I sobbed as Patrick led me to his car.

And then, again, it was over, and we drove home.

[Laura Lark is an award-winning visual artist and a widely-published writer. She has an MFA in Painting and an M.A. in Creative Writing/Literature, both from the University of Houston. Otis Ike, aka Patrick Bresnan, is a widely-exhibited photographer, a documentary filmmaker, an affordable housing activist, and a builder. He holds a masters degree in Sustainable Design from the School of Architecture at the University of Texas .]


Photos by Otis Ike / The Rag Blog:

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Jean Trounstine : After 18 Years on Death Row

Damien Echols. Photo by Larry D. Moore / Wikimedia Commons.

Damien Echols:
After 18 years on Death Row

Being on death row and in solitary confinement has got to be one of the most inhumane experiences we put prisoners through -- and we justify it by calling them 'the most dangerous prisoners alive.' But what of those who later turn out to be innocent?

By Jean Trounstine / The Rag Blog / February 20, 2013

Texas carried out the most executions of any state in 2012 -- 15 -- with Arizona, Oklahoma, and Mississippi tying for second place at six apiece. As of May 2012, the total number of Texas prisoners in administrative segregation, also known as solitary confinement, totaled 8,407.

Death row and solitary, a brutal combination. Twenty-three out of 24 hours locked in a small cell with a cot and a toilet. Barely any human contact. Knowing you’re going to die.

Two weeks ago, I went to an event at Brandeis University in Waltham, Massachusetts, to hear Damien Echols talk about his 18+ years in solitary confinement. Echols is one of the so-called "West Memphis Three," all from West Memphis, Arkansas, and falsely convicted for the brutal murders of three boys in 1993. All sentenced to death.

Following a high-profile, celebrity-backed campaign to free the three prisoners, Echols and his two co-defendants were released from prison in August 2011. They agreed to a rare plea bargain that essentially had them plead to guilt and not sue the state in exchange for immediate freedom.

It's a story made for a movie -- and there is one and there will be another. Plus many celebs helped with the case that includes stories to make your skin crawl -- false accusations of Satanism, police corruption, i.e. the works. Altogether another tragic indictment of our system.

But that's not what stirred me to write this blog.

A few days later I came across an article about Echols going back to Tennessee for the first time since he was released from prison in 2011. For whatever reasons, he was invited to talk at a... (ready?) -- technology conference. Now, granted, just having Damien Echols come to your conference could add to the draw, but asking him to talk about his reactions to technology since he got out of prison seems at once fascinating and almost a little cruel.

How overwhelming must it be to get out and find yourself in this world where everything goes so fast you hardly have time to breathe!

The West Memphis Three, June 1993.

And juxtapose this with what Echols said at the talk and writes about in his new book Life After Death – he eventually learned to spend up to six hours a day in prison meditating. He bludgeoned his body to stand or sit in cold and heat and pushed himself through the physical pain. He escaped the bars mentally, found himself through deep soul searching, got a modicum of peace. He said that his spiritual practice as well as his wife, Lorri Davis, who fought for his freedom and whom he married while in prison, saved his life.

So imagine after solitary confinement for 18 years, walking into the Apple Store. The computers. The cell phones. The tweets and whistles. Twitter, Echols says, he likes, because it feels like he's writing poetry. Texting too, a language unto itself. But learning it in a heartbeat?

And what about the other bombardments of the techno-savvy 21st century? Apps? Blogs? Flicker? All the ins and outs of the technological world, not to mention discovering that you can securely (sometimes) use credit cards online and drive straight through those freeway toll booths with Easy Pass. What seems commonplace to us, natural, we actually learned step by step, year by year.

I remember how Dolly, one of the women I taught who spent 15 years at Framingham Women's Prison in Massachusetts, said that the scariest thing after release was looking at the prices of shoes in the mall. She said she started shaking and couldn't stop.

Yes, there's reuniting with your loved ones. There's the joy of seeing green grass, the ocean, or a blanket of snow across a mountain. And surely, hot fudge in the free world is as blessed as a bath. But the shock of having been years behind the eight ball, the feeling that you are always trying to catch up, has to take time to deal with, and maybe more years to get over.

So while we (and I speak as much of myself here as you) might envy Echols for having a New York Times bestseller or for having the likes of Johnny Depp and Peter Jackson support him with their fame and opportunities, the truth of Echols's life is not celebrity or fame, but the hard darkness of coming out of the most repressive world in this country where we keep people in intolerable conditions. Coming into the light from darkness -- it is no wonder that Damien Echols must wear dark glasses.

[Jean Trounstine is an author/editor of five published books and many articles, professor at Middlesex Community College in Massachusetts, and a prison activist. For 10 years, she worked at Framingham Women's Prison and directed eight plays, publishing Shakespeare Behind Bars: The Power of Drama in a Women's Prison about that work. She blogs for Boston Magazine and takes apart the criminal justice system brick by brick at jeantrounstine.com where she blogs weekly at "Justice with Jean." Find her contributions to The Rag Blog here.]

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BOOKS / Ron Jacobs : The Limbo of Death Row

Image below (inset): ‘Dominoes. Death Row, Texas," 1979. Photo by Bruce Jackson from In This Timeless Time. Image from Prison Photography.
'In This Timeless Time':
The limbo of Death Row

The life and surroundings can be summed up in the words of prisoner Excell White: 'The gloom,' he tells the writers, 'wasn’t anything but emptiness.'

By Ron Jacobs / The Rag Blog / May 31, 2012

[In This Timeless Time: Living and Dying on Death Row in America by Bruce Jackson and Diane Christian (2012: University of North Carolina Press); Hardcover; 256 pp.; $35.]

The death penalty is a fact of life in the United States. Despite the actions of many well-intentioned people, these premeditated murders continue to take place at a shameful pace. The fact that the death penalty does exist has brought many young people to question the morality of a system that supports and even champions execution.

Unlike the other form of murder carried out by the state -- war -- the death penalty is harder to rationalize for many people. The act of intentionally putting an innocent human to death; the fact that life imprisonment is a worse punishment to many; the applied racism of the death penalty's assignments; and the sheer pointlessness of execution by the state has caused many a thoughtful person to come out in opposition.

Those who are condemned to die in the United States wait out their time in parts of certain prisons. Those places are commonly known as death row. Occasionally, these unremembered places are the subject of books and movies. Sometimes, they are also the focus of the infrequent sociological survey.

While the latter surveys do fairly well at creating statistics and prognostications, it is the fictional renderings that do better in evoking the life in these prison tiers of gates and concrete. The despair and dashed hopes; the regret and the lack thereof; even the infrequent joy and laughter.

An exception to the factual/fictional disparity can be found in the recently published book from Bruce Jackson and Diane Christian. Back in 1979 Jackson took his camera into Ellis Prison in Texas and photographed men living on death row there. These photos were an adjunct to a documentary film he and Christian would release in the early 1980s.

The film features interviews, commentary and reflections of the inmates and the filmmakers. The book, titled In This Timeless Time: Living & Dying on Death Row in America, although just published, is also part of that documentary effort. It is a fitting coda.

Designed something akin to a coffee table book, In This Timeless Time is made up of three parts. The first part includes a selection of the aforementioned photographs. The photos are accompanied by text. Some of that text is narrative describing the physical setup of the part of the prison where death row is located. Other bits describe the interior of certain prisoner’s cells and the prisoners. Still other text describes the prisoners' limited lives while still other text includes the words of the prisoners themselves.

The life and surroundings described can be summed up in the words of prisoner Excell White when he talks about his introduction to the row: "The gloom," he tells the writers, "wasn’t anything but emptiness."

The second part of the text is titled "Words." That is what it is. Words from the prisoners talking about the other prisoners. Words from the writers about the prisoners and their particular cases. Words describing the legal limbo of a death row when nobody is being killed (the book was begun during the period following the Supreme Court's suspension of the death penalty in its decision on Furman vs. Georgia), and when executions are taking place.

Last but not least are the words the authors use when writing their impressions of individual prisoners or about the Row itself.

The authors' description of their work on the Row concludes the book. Gaining the trust of the prisoners and fending off the uneasiness of the guards are two of the dilemmas described by the authors. Overcoming their own fears of being alone with potentially psychotic murderers is another. Less wrenching but interesting nonetheless is the authors' description of how they made the movie: funding, legalities and the like.

The grand finale is the showing of the film to the inmates. Jackson and Christian admit their fears of the prisoners' reactions. Indeed, this was present in their minds during much of the process.

There is no way that a subject like death row can be presented with beauty. It is one of the ugliest of humanity's activities. The inmates are not the most beautiful humans and their crimes are ugly. Yet, they too are human. The authors tell of a man on the Row named Arturo Aranda. Aranda who is well-inked. In other words, he has lots of tattoos.

The last tattoo he was getting before he went to prison was of the Lady of Guadalupe. Because he was arrested for murder, the tattoo is without a face. This image serves as a perfect metaphor for the denizens of death row; for the most part they remain faceless. Jackson and Christian's book gives some of those men a face. Therein lays its beauty.

[Rag Blog contributor Ron Jacobs is the author of The Way The Wind Blew: A History of the Weather Underground. He recently released a collection of essays and musings titled Tripping Through the American Night. His latest novel, The Co-Conspirator's Tale, is published by Fomite. His first novel, Short Order Frame Up, is published by Mainstay Press. Ron Jacobs can be reached at ronj1955@gmail.com. Find more articles by Ron Jacobs on The Rag Blog.]

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Steve Russell : 'Chief' Was Born on Death Row

The North Block entrance to Condemned Row at San Quentin. Image from Strong as an Ox.
'Chief' Stankewitz:
Born on death row

Just as you can’t discuss federal Indian policy without recourse to history, it’s hard to understand Douglas Stankewitz and his crimes outside of his historical context, which includes the spectacular destruction of California Indians.

By Steve Russell / The Rag Blog / October 13, 2011

Capital punishment, the saying goes, means that those without the capital get the punishment, and over 35 years of labor in criminal law has yet to show me a case that disproves it.

Capital cases are usually defended by court-appointed lawyers, because prosecutors do not typically choose to seek the death penalty against defendants who can afford the stratospheric legal fees of a capital defense. The only capital case I defended in private practice was one of the very few I’ve seen where the lawyers were hired rather than appointed, and we won -- victory being defined in that instance as the government was not allowed to kill our client.

Death row, like most poor neighborhoods, has a disproportionate number of minority residents. Those of us who come from poor neighborhoods know that there are mean people there, and plenty of conditions that make even good people mean. We also know that the vast majority of poor people survive those conditions without becoming mean.

Good or mean, the hearty survival rate of poor people justifies in the minds of some what they call “putting down the mad dogs,” in spite of the fact that it is much more expensive to kill sociopaths than it is to lock them up without the possibility of parole. Those are the two choices for dealing with the people who have become too dangerous to live among us, and such people do exist -- in all my years of practice, I have had contact with three of them; three out of the thousands of criminal defendants with whom I have dealt.

Based on my many years in the legal system, I do not trust it to pick those three sociopaths out of a crowd. Sociopaths, you see, are not always poor people -- some of them are even white. Back in the days (within my lifetime) when we had the death penalty for rape, those executed were most often dark-skinned men accused of raping white women, and thanks to DNA exonerations we now understand that cross-racial identification is highly unreliable.

Even utterly certain eyewitnesses make mistakes, and confessions are so notoriously unreliable that everyone understands why police investigators withhold some details of every crime that makes the newspaper. The more publicity the crime gets, the more disturbed people will line up to confess.

Making things even more confusing is that confessions by persons actually involved in a crime are often given to shift blame, leading to the perverse outcome in some capital cases that the more experienced criminal is able to make a deal to escape the death penalty by testifying against a less savvy co-defendant, without regard to which defendant was more culpable.

Since eyewitness identifications and confessions can be unreliable, it’s easy to see why there are very few trials where everybody agrees on what happened. What may appear crystal clear in the newspapers can only be seen in the courtroom as through a glass, darkly.

A lawyer’s first duty in a capital case is to tell the best story that can be told with the facts as they stand. If you are a juror in such a case, you have buckets of messy facts brought into the courtroom and must listen to lawyers who assemble stories from those facts -- often without regard to what they may believe to be the truth.

A lawyer’s second duty in a capital case, should the first not be discharged successfully, is to make absolutely sure that the jury fully understands the life they are being asked to end. Jurors are introduced to a man by way of the worst thing he’s done in his life, a circumstance that would be a mighty challenge to any of us, even if the task were less vital than to befriend 12 strangers who have nothing in common but their sworn willingness to kill you if the government gives them a good enough reason.

Douglas Ray 'Chief' Stankewitz is the longest tenured inmate on California’s death row. Image from freechief.org.

Douglas Ray 'Chief' Stankewitz

All this brings me to an Indian I want you to know better than his jury did -- Douglas Ray Stankewitz, the longest tenured inmate on California’s death row. Like most Indians who find themselves in a group of non-Indians, he is currently known as “Chief,” but unlike many Indians, he is proud of the nickname.

The government wants to kill Chief because Theresa Greybeal was shot dead in the course of a robbery by a group of people high on heroin, and there is no question that Chief was one of them. There is a serious question about who pulled the trigger, and juries are reluctant to kill individuals who did not pull the trigger. But as far as his jury knew, Douglas Stankewitz pulled the trigger, and he might have, but we will never know, based on his trial.

Just as you can’t discuss federal Indian policy without recourse to history, it’s hard to understand Douglas Stankewitz and his crimes outside of his historical context, which includes the spectacular destruction of California Indians.

Douglas Ray “Chief” Stankewitz is a citizen of the Big Sandy Rancheria, as they call reservations in California. He was born on May 31, 1958, to Marion Sample Stankewitz, the sixth of her eleven children. She was the fifth of seven children. Her father, Sam Jack Sample, was Mono and Chukchansi, and her mother was Mono. She met Douglas’s father, a truck driver of Polish descent, when she was picking grapes and he was her supervisor. They were both practicing drunks.

Douglas was born the year the Big Sandy Rancheria was terminated as part of the national policy to force Indians to assimilate. In other words, for most of the time that the young Douglas was being let down by the adults around him, the Big Sandy Rancheria did not exist in the eyes of the federal government.

His mother had also been raised on the Big Sandy Rancheria, a place until recently blighted by poverty, alcohol abuse, and hopelessness. Marion drank beer by the case while pregnant, and when Douglas was born his father was in jail for beating his mother. His mother had no prenatal care -- she first saw a doctor regarding her pregnancy when she was in labor.

Douglas was beaten regularly by both of his parents and was taken to the emergency room three times before his first birthday. At age six, he was found injured and wandering on the streets. The police took him home, where his mother admitted to having beaten him. The police did not remove him from the home, apparently because they decided that the process would have been too complicated. There were nine children in the home at the time, and Douglas’s father was in jail.

Less than three months later, Douglas was brought to the police station by a neighbor who found the boy on his doorstep, again injured. This time, all the children were taken away and Marion was jailed.

After two unsuccessful foster home placements -- the foster parents were unable to deal with Douglas’s violent emotional eruptions -- the seven-year-old was committed to Napa State Psychiatric Hospital for 90 days. While he received no treatment there (beyond being diagnosed with a severe emotional disturbance), this placement was extended twice, for a total of nine months. This child trapped in an adult institution became easy prey for sexual assault, and that became an unfortunate part of his “education.”

He was then placed in a foster home, where he stayed for nearly four years, the second longest stay at one address he has had in his life. The longest was in is his current address: San Quentin’s death row. He received no visits from his natural family during that placement with the foster family. His foster mother had to make a personal plea to get Douglas into the third grade:

The day I went to pick him up, I'll never forget. He went down on all fours in a corner, growling and snorting at me. On the way home, he jumped over into the back seat and clawed all the stuffing out of the upholstery. When we walked into the kitchen of my home, he shuffled over to the dish rack, full of dry dishes, and threw the whole thing across the room.

I had been told not to physically restrain or punish him because he would go berserk if touched, but I figured he was already berserk, so being as big as I am, I just grabbed him from behind, wrapped my whole self around him, down we went and I just held on for dear life until he calmed down.

It's taken me all this time to tame him. I've taught him to talk instead of grunt, to use the toilet, to dress himself, to use silverware, to take care of animals without hurting them, to ask instead of grab... He's been begging me to teach him to read and write and do numbers like the other foster kids, so I think he's ready for school… Will you take him in your class? If he's any trouble, just call and I'll come pick him up.

It is unclear how this foster placement ended, and Chief is in no position to know because of his age at the time. Apparently, the state was motivated by a bureaucratic imperative to keep families together when possible, regardless of the circumstances. What is clear is that from 1970 until his first commitment to the California Youth Authority in 1972, Douglas had at least 13 placements. The longest was for five months. The first was back with his mother, where he learned to sniff paint.

For a short period, he was placed with an aunt back on the reservation, where he lived until her children were taken away because of her drunkenness. The aunt said that before Douglas came to live with her, “a lot of times there was no food in the house. Sometimes we'd save our oatmeal for [the children] because they had nothing.” While Douglas was living with his aunt, his mother was sent to prison for manslaughter.

At age 13, Douglas got his first criminal referral to juvenile court. His earlier visits to juvenile court had been as what the state called a “child in need of supervision.” Douglas had apparently been running with some adults, and when they showed up too late to get fed at a Fresno soup kitchen one day, the adults decided to rob someone to get money for food. Douglas involved himself in this crime by going though the victim’s pockets.

Between 1972 and 1977, Douglas spent all but eight months in either Youth Authority lockups or the Sacramento County Jail. In a little over two months from the time he was released until the arrest that landed him on death row, Douglas Stankewitz consumed (according to the individuals around him) massive quantities of marijuana, alcohol, methamphetamine, and heroin. At the time of the killing that brought him to death row, he had not slept for at least two days.

End of the line: Sleek new death chamber at San Quentin. Image from Inland News Today.

The fearsome responsibility

Chief has now spent 33 years of his life on California’s death row, but virtually all of his life before arriving there was spent under the “supervision” of the state of California in one guise or another. We don’t know what the jury on his trial would have made of this, but we do know that Chief’s American Indian identity made their decision to kill him inevitable. That statement may seem shocking, but so are the actions of Douglas Stankewitz’s court-appointed lawyer, the ex-judge Hugh Goodwin.

Since I am a retired judge and know something of the work, I was prepared to think an ex-judge from a criminal court might make a good defense attorney in a capital case, if he had the stomach for it. The problem is that Goodwin became an ex-judge because of his predilection for sentencing criminal defendants to go to church. He was convinced that his job as a judge was to bring people to Jesus. It is clear from reviewing the Stankewitz case that he saw his duty as a criminal defense lawyer the same way.

The fearsome responsibility of a capital defense can keep a lawyer awake at night, but Mr. Goodwin’s sleep was apparently less troubled than mine, because he took the attitude that his client’s life was in God’s hands rather than his own.

Because there was no question that his client was involved in the killing -- only whether he pulled the trigger -- Mr. Goodwin had ample notice that the main business of this trial would be in the penalty phase. There was much that the jury should have been told in the penalty phase, but Mr. Goodwin did not deem it important to inform them that his client had been born with fetal alcohol syndrome, beaten, starved, sexually assaulted, and deprived of any loving relationship with an adult.

Instead, he called to the stand a jailer and an assistant district attorney to give their opinions that anybody can reform if they allow the Christian God to come into their life. Predictably, the cross-examination of these witnesses bored in on whether they had any reason to believe Douglas Stankewitz had invited God into his life. They did not.

Errors by a lawyer do not require reversal if the lawyer had a tactical reason for making the errors. Hugh Goodwin swore to this statement about his tactics in that trial:

I have never believed in the separation of church and state, as I made clear when I was a judge. I recognize that this is a controversial view which is not widely shared. When I presented the testimony of a Deputy District Attorney and the Fresno County Jail chaplain that they believed people could be transformed by the power of God if they let God into their lives, I knew that it was likely that on cross-examination they would state that there was no evidence that Mr. Stankewitz would let God into his life. Nonetheless, I believed that by presenting this testimony, God’s will would be done, and accordingly I did so.

As idiotic as the “power of God” defense was in a capital murder case, it would have had a prayer of swaying a jury against death if there were a shred of evidence that Douglas Stankewitz had a Christian bone in his body. But Douglas “Chief” Stankewitz is a Mono Indian, born on the Big Sandy Rancheria, raised by the State of California in a parade of incompetent foster homes, mental hospitals and juvenile facilities. His grandfather, Sam Jack Sample, was a ceremonial singer and medicine man who died singing in the roundhouse when Douglas was a small boy. Goodwin might as well have entrusted his client’s life to Zoroaster for all the chance his client had of grabbing hold of that lifeline.

The defense in a capital case must compel the jury to understand the life they are being asked to end. In this case, the jury was told that goodness is linked to being Christian, and the defense lawyer might as well have said plainly that the only good Indians he ever saw were dead.

At this writing, the Big Sandy Rancheria has regained federal recognition and has opened a casino. Using those casino funds, they finally have an office to enforce the Indian Child Welfare Act; they also have a Head Start program.

In another case of poor timing, the name of Sam Jack Sample, Douglas’s grandfather, has turned up on the list of persons for whom the Department of the Interior is holding property in trust. Since Stankewitz’s mother is deceased, he may actually inherit that property, thereby acquiring the funds to pay for his funeral—if he had anyone to attend it.

Chief Stankewitz has no execution date set and the litigation to get him a new trial continues. Until he does get a fair trial, we won’t have any basis to say whether he is among the worst of the worst who deserve the death penalty or whether he is just another man without the capital getting the punishment.

[Steve Russell, Cherokee Nation of Oklahoma, lives in Sun City, Texas, near Austin. He is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. Steve was an activist in Austin in the Sixties and Seventies, and wrote for Austin’s underground paper, The Rag. Steve is also a columnist for Indian Country Today, where a version of this article has also appeared. He can be reached at swrussel@indiana.edu. Read more articles by Steve Russell on The Rag Blog.]

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FICTION / Marc Estrin : The Machine

THE MACHINE

By Marc Estrin / The Rag Blog / September 27, 2011

The government murder of Troy Davis this week -- under odd evidential circumstances -- has once again thrust capital punishment up for public discussion.

As my contribution to death penalty abolition, I recently wrote The Good Doctor Guillotin, a novel about the first use of the guillotine during the French Revolution -- an occasion sufficiently removed from current politics as to allow the issues to be seen more clearly.

Tobias Schmidt was the machine's builder, a piano maker. And Charles-Henri Sanson was the executioner of Paris.

The novel itself is intricately woven, but here's a stand-alone short chapter describing the testing of the machine before use. It may provide some food for reflection:


29. The Machine

It was 14 feet high, its beams and posts painted blood-red -- a nice touch, that. It would be called “End of the Soup,” “Old Growler,” “Sky Mother,” “the Last Mouthful.” It would be called by the feminine form of someone’s name, someone who had repudiated it. As if it were his daughter. Assemblymen called it the "Timbers of Justice.”

The victim, once attached to the plank, his head in the fatal window, would become a part of it, a cog in the machine of egalitarian justice. His blood would be shed not by the unsteady hand of his fellow man but by this lifeless, insensible, infallible instrument, a doctor’s idea become oak and iron.

The materials gathered, over the course of a week Tobias Schmidt and two hired workers constructed the frame. Two four-sided posts were grooved and chiseled as guides for the falling blade. When the 70-pound holder and 15-pound blade came back from the blacksmith, they were fitted loosely between the posts and the posts joined by an upper crossbar with a hole for the rope. A lower crossbar was angle-braced to its stand for stability. Rope guides were placed.

On the back side of the device, the executioner’s side, another crossbar was attached to hold the lunette -- two wooden pieces, each with a half-circular hole to contain the client’s, the patient’s, the package’s neck. The diameter was that of Pelletier’s. A smaller one for women could be substituted as needed. When fitted together, the pieces formed a lovely “little moon” whose upper half could be lifted on a hinge to permit a head to enter.

That was it. Simple. A weighted blade and its frame. Though it required two strong men to carry it, it could be loaded onto a heavy cart and transported wherever it was needed, along with its separate bench, long and strong enough to hold a giant—or an ox—and fitted with thick leather straps.


Before dawn on Tuesday, April 15, 1792, a sound of clattering wheels was heard on southern streets two miles from the center of Paris. It was a four-wheeled wagon, drawn by two horses, carrying a long object covered with heavy black cloth and tightly bound with chains. Four guardsmen with bare swords on horseback rode silently in front of the wagon, and four behind. Bringing up the rear was a smaller wagon with several sheep. If going to market, they were being taken in the wrong direction. They advanced slowly, gray and black in the pale early morning.

The procession was heading for the suburb of Bicêtre, just outside the city gate, home to the great hospital for venereal disease, its hospice for the needy poor, and its maison de correction, locked wards for hardened criminals, some awaiting execution.

When seen from a distance, Louis XIII’s building looks quite imposing. Set on the brow of a hill, from afar it retained something of its former splendor and the look of a royal residence. But now, three Louises later, the palace had in fact become a hovel. Its dilapidated eaves were shameful and its walls diseased. Not a window was glazed but only fitted with crisscrossed iron bars through which, here and there, pressed the harrowed face of a patient or a prisoner.

Already waiting in a small inner courtyard were Charles-Henri Sanson, with two assistants, Tobias Schmidt, and the doctors Antoine Louis and Joseph-Ignace Guillotin, the latter most reluctantly.

Early-morning eyes gawked from behind bars as the first sheep’s head was placed in the lunette, its neck the size of Pelletier’s. The upper half moon was locked in place. One of the assistants let loose the rope from its tie-off so Sanson could better observe.

Disaster: The heavy blade jerked stickily into motion, jolted downward between the grooves, and sliced into the animal without killing it. All mental ears were stopped against its terrifying cry. Sanson was dismayed. He had the blade wound back up and released again. It bit into the neck again but did not sever it. The victim howled. Once again the blade was raised and dropped, but the third stroke only caused a stream of blood to spurt from the sheep’s neck, without the head falling.

Five times the blade rose and fell; five times it cut into the sheep, which cried five times for mercy. It remained standing on the platform, an appalling, terrifying sight. Sanson straddled it and hacked away with a butcher knife at what remained of its neck. Twenty pounds of lead shot were added to the blade-carrier, and three more sheep were neatly dispatched thereby. The march of science.

After nightfall Schmidt took the machine back to his workshop in the Cour du Commerce, Rue St.-André-des-Arts, just opposite the printing shop in Number 8 where Marat’s paper was printed. He lined the grooves with brass for a smoother drop and bolted more weight to the blade assembly.

Two days later, on April 17, assisted by his son and his two brothers, Sanson repeated his experiments on the improved machine, this time with three human cadavers from a military morgue, three well-built men who had died in short illnesses that had not caused them to grow thin.

Among the spectators were the two doctors concerned, along with Michel Cullerier, the chief surgeon of Bicêtre; Philippe Pinel, the resident alienist; several physician members of the National Assembly; and delegates from the Council of Hospitals of Paris. Strapped to the bench, the three corpses, good soldiers all, were successfully beheaded without protesting, to the applause of most of the onlookers.

[Marc Estrin is a writer, activist, and cellist, living in Burlington, Vermont. His novels, Insect Dreams, The Half Life of Gregor Samsa, The Education of Arnold Hitler, Golem Song, The Lamentations of Julius Marantz, and The Good Doctor Guillotin have won critical acclaim. His memoir, Rehearsing With Gods: Photographs and Essays on the Bread & Puppet Theater (with Ron Simon, photographer) won a 2004 theater book of the year award. He is currently working on a novel about the dead Tchaikovsky. Read more articles by Marc Estrin on The Rag Blog.]

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Lamar W. Hankins : The Death Penalty and the Question of 'Actual Innocence'

Demonstrators carry pictures of Troy Davis, who was executed Sept. 21, 2011, in Jackson, GA. Image from Politics and Fashion.
When government decides to kill:
The death penalty and the
question of actual innocence

[The Supreme] Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent. -- Justices Antonin Scalia and Clarence Thomas

By Lamar W. Hankins / The Rag Blog / September 27, 2011

Almost every high school student and college graduate has thought about capital punishment. It is one of the most common topics to write about in political science, social science, English, and speech classes.

Everyone has an opinion and reasons to be for or against it. In this, I am not different from most other people. But my perspective about capital punishment has come to me over the 45-plus years I have been a participant in the functioning of the criminal justice system. I have learned that it does not function well at any level.

I have concluded that the criminal justice system is so imperfect and unreliable that it is irresponsible to assign it the authority to decide who should live and who should die. I didn’t always think this way. I used to respect the criminal justice system. When I was 20 years old, I spent the summer after my junior year in college working for the Texas prison system.

That summer, the Texas Department of Corrections (now the Texas Department of Criminal Justice) hired about 30 college students to introduce them to the prison system and to provide inexpensive employees to fill in while regular employees took vacations.

I learned that summer, from first-hand experiences, about wide-spread abuse of inmates. Four inmates that I was supervising were taken by prison officials -- my immediate supervisor and the head of the prison shops -- and beaten with ax handles for working too slowly. When I questioned the beatings, the assistant warden and then the warden told me that they had all fallen down the steps when they were taken away from their work area for about 30 minutes for a discussion about their slow work habits.

Even a naive 20-year old couldn’t accept that explanation after counting the dozens of individual knots that had suddenly appeared on their freshly shorn heads after that 30-minute discussion. The warden threatened me if I persisted in my complaint, and he moved me to other jobs that diminished my contact with inmates. But for the rest of the summer, after word of my complaint got around, I was told stories by inmates and guards about many abuses, including the drowning of inmates by prison officials.

That summer job was the beginning of the end for my unquestioning acceptance of official explanations for government misconduct. A few years later, when my younger brother was led into a marijuana buy by a snitch working off his own arrest for selling drugs by getting others to commit drug crimes so they could be arrested, I learned another lesson about how the criminal justice system functions. It was not enough to arrest people selling drugs; the government had to create the crimes so it could make more arrests.

When I became an attorney, I refused to represent defendants who had become snitches. Partly it was for self-preservation. How could I trust that a client setting up drug cases for law enforcement would not try to set me up? It would be a coup to get a criminal defense attorney arrested. It would not matter that I neither used nor sold illegal drugs. At the very least, I would be tainted for life just for having such an allegation made against me, and I could have lost my license to practice law.

Shortly before I became an attorney -- and just after the Supreme Court in 1976 allowed the resumption of capital murder cases after a four-year moratorium while it sorted out some death penalty issues -- I was a legal assistant for one of the premier criminal defense attorneys in Houston. He had been appointed to represent a notorious defendant accused of capital murder and other crimes.

The capital murder trial lasted two months. The jury could not reach a decision on punishment. At that time, the law in Texas required that if the jury could not reach a decision on punishment, the entire trial had to be done over. A few months later, we appeared back in the same courtroom for the re-trial. The prosecutor offered a deal on nine charges against the defendant. He received three life sentences and six 99-year sentences, thus avoiding a death sentence.

In 1979, while practicing in Bryan, I was appointed to represent a defendant in another capital murder case. While my client had not actually done the killing, he had participated in actions that led to the death of an innocent man whose truck my client and his cohorts wanted to steal. In Texas, a concept known as “the law of parties” made him equally culpable.

The trial lasted for three months. My client was convicted and sentenced to death, but the case was overturned on appeal because the judge had not allowed me to fully cross-examine a key witness against him. That decision came several years after the first trial. By then, I had moved to San Marcos and other attorneys were appointed to represent the defendant when his case was set for re-trial.

During the first trial, we were allowed to introduce what was termed “mitigating evidence” -- evidence that might show why the defendant should not receive the death penalty -- but the judge did not explain to the jurors how they should consider and apply that mitigating evidence. That evidence included information that the defendant had voluntarily surrendered to the sheriff by turning himself in at the jail, that he was borderline mentally retarded, that he had grown up in dismal poverty, that he had not before committed a violent crime, and that he was subjected to extreme brutality by his father during his formative years.

I had access to all of that mitigating evidence and was a witness to his surrender to the sheriff. I had located the defendant (I was previously appointed to represent him on a misdemeanor charge) and drove him to the jail the night he turned himself in. I contacted the new defense attorneys and offered to help in any way I could, including being available to testify about his voluntary surrender to the sheriff.

The new attorneys presented no evidence of these mitigating circumstances at the re-trial, even though a newer court opinion had given judges specific instructions about how to explain such mitigating evidence to jurors so that it could be applied fairly by them in their deliberations about whether the defendant should be given a death sentence or a life sentence.

He was again sentenced to death. That punishment was carried out 22 years after the crime had been committed. His death did yield one positive benefit -- he donated his body to the University of Texas Medical Branch in Galveston to further the education of those studying to become doctors.

After contacting some of the jurors from the original trial, I had learned that if they had been instructed how to consider and apply the mitigating evidence, they would have voted to give my client a life sentence. In the second trial, no mitigating evidence was presented, even though jurors would have been instructed how to consider and apply it.

As a result, the second set of jurors had no evidence to consider in deciding my former client’s fate. At the time of his death, a habeas corpus petition was pending before the court charging that the attorneys in his second trial had provided less than effective representation by failing to present the mitigating evidence that might have saved his life.

The recent execution of Troy Davis in Georgia after seven of nine witnesses recanted their testimony or admitted that they had lied at his trial brings up other issues of manifest unfairness in the criminal justice system. Troy Davis was convicted of murdering an off-duty police officer and sentenced to death.

In addition to the witness recantations, new evidence suggests that Davis had been inside a nearby pool hall and was part of a crowd that left the pool hall in response to a commotion in the adjacent parking lot where a homeless man was being beaten by a man named Coles, who is believed by many to be the killer of the off-duty officer who came to the homeless man’s aid.

The recanting of false testimony or mistaken eyewitness identification is not unusual, especially when the testimony is stimulated by over-zealous investigators intent on a conviction based largely on their gut instincts or dislike of a defendant. Psychologists have known for at least 50 years that eyewitness testimony is the most unreliable evidence presented in most criminal cases. But the courts in most jurisdictions have not allowed scientific evidence about the unreliability of eyewitness identification to be presented to jurors. That has begun to change.

A primary reason for the change has come from the work of the Innocence Project, which started in 1992 at the Benjamin Cardoza School of Law. When DNA testing became available to analyze blood from a crime scene, it became possible to determine whether a particular accused person could have been the culprit.

Before the early 1990s, many defendants were convicted on eyewitness identification and circumstantial evidence, such as a match between the blood type of an assailant and blood found on the victim, which did not rule out the possible guilt of millions of others with the same blood type as the defendant. The Innocence Project started looking back at some of these old cases where there was blood evidence that had never been subjected to DNA analysis.

Resulting from the use of DNA analysis, 70% of the cases that the Innocence Project has taken back to court have resulted in wrongful convictions because of faulty eyewitness identification of the assailant, usually in cases of murder or sexual assault.

In other cases, faulty scientific analysis of forensic evidence by government laboratories and investigators has resulted in wrongful convictions. The Willingham arson case is one example. The arson investigators misunderstood the forensic evidence and implicated Willingham in the deaths of his three children. He was executed in 2004.

In the early 1990s, a pathologist in west Texas, Ralph Erdmann, is believed to have faked about 100 autopsies and falsified an unknown number of toxicology reports, many of which resulted in wrongful convictions. Erdmann was convicted on several counts of evidence tampering and perjury after defense attorneys and others sparked an investigation into his forensic practices, but it took the appointment of a special prosecutor to uncover most of his misdeeds.

Prosecutors have enormous discretion about whether to charge a defendant with capital murder. The same year that my client in Bryan was charged with capital murder, at least five other cases in the same county could have been prosecuted as capital cases, but were not.

They were murders committed during the commission of kidnapping, burglary, robbery, aggravated sexual assault, or arson. The prosecutor decided, for his own reasons, that the capital murders committed by these defendants did not need to be prosecuted as capital cases. What made my client’s case special was that four black defendants killed a white man. In the other five cases that year, the victims were all black.

The race of the victim and the race of the defendant was the only salient difference in the six cases. (Occasionally, however, a white person does receive the death penalty for killing a black person, as in the horrendous dragging death and decapitation of James Byrd in East Texas a few years ago.)

For many defendants wrongfully convicted, there are no adequate remedies at law. Many federal judges and some Supreme Court Justices believe the Constitution does not require reconsideration of cases that have been fully litigated even when there is evidence that the defendant is actually innocent of the crime charged.

Justices Antonin Scalia and Clarence Thomas wrote in 2009:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.

As journalist Ed Brayton explained this point further in 2010:

[T]he 9th Circuit Court of Appeals has decided that the fact that a convicted criminal can now be proven to be innocent does not matter if he filed an appeal in 16 months rather than the 12 months allowed by the statute of limitations. Actual innocence simply does not matter, only technicalities do.

Criminal and appellate procedures, such as deadlines for filing appeals and the rules for how and when to file writs of habeas corpus challenging wrongful incarcerations, are more important in our criminal justice system than proof of the actual innocence of people in our prisons and on our death rows.

These and many similar reasons, including my own experiences as an attorney with faulty eyewitness testimony, have led me to conclude that the criminal justice system is too riven with mistakes to be allowed to put anyone to death. At least a million Texas property owners each year don’t trust the government to decide accurately the value of their property. With so little confidence in government, why would we give that same government the power of life and death over a human being?

Law professor Paul Campos of the University of Colorado at Boulder summed up the Scalia and Thomas position, which is basically the position of the criminal justice system as a whole, in reference to the Troy Davis case:

The defense in this case is claiming that there’s something unusual about Troy Davis’ situation, requiring extraordinary action on the part of the Supreme Court. But there’s nothing unusual about his situation. The American legal system routinely sentences people to long prison terms and even to death on the basis of dubious evidence, in trials featuring overburdened, underfunded, and marginally competent defense lawyers. Obviously under such conditions mistakes are going to be made. If such mistakes make verdicts unconstitutional, then the whole system is unconstitutional.

And that’s a difficult proposition to accept for most people in the land of the free and the home of the brave. But it leads to an inevitable question of morality: “Is this justice?”

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Texas' Dr. Death : Executing the Mentally Retarded

Daniel Plata, a mentally retarded criminal saved from execution in Texas, is shown in picture on a bookshelf at his home. Photo by Michael Stravato / The Texas Observer.
Cruel and unusual in Texas:
Executing the mentally retarded

'When you have junk science in a case, it's like pouring poison into a punch bowl,' -- Attorney Kathryn Kase

By Yana Kunichoff / January 18, 2010

Amy Goodman of Democracy Now! interviews The Texas Observer's Renée Feltz. See Video below.

An investigative report reveals that Texas continues to execute mentally retarded prisoners despite a U.S. Supreme Court ban. The state has been basing its decisions on unreliable mental health testimony by a court-appointed psychologist.

In a series of articles in The Texas Observer, Renée Feltz reported the mistakes made by George Denkowski in psychiatric evaluations of a number of patients -- and how catching a similar mistake saved the life of Daniel Plata.

"To those of us familiar with the right way to do these things," said Jerome Brown, a Texas psychologist, "it is very apparent that what he's doing is wrong." Brown was referring to the medical evaluations Denkowski did of inmates deemed potentially mentally ill.

In a Supreme Court ruling in 2002, Atkins v. Virginia, it was decided that "executions of mentally retarded criminals are cruel and unusual." The impetus behind this decision was that, although mentally disabled people can distinguish between right and wrong, their ability to control impulsive behavior or learn from mistakes was curtailed.

To decide whether a defendant suffered from a severe enough level of mental disability, the court ruled that persons with an IQ score of 70 or below could legally be considered to have below-average intellectual abilities and "deficits in adaptive behavior" since before the age of 18. This ruling exempted Daryl Atkins, the defendant, from death row.

One of the men focused on in the investigative series, Daniel Plata, was saved from Death Row by an investigation into methods used by the prosecution's appointed psychologist, George Denkowski, to determine whether Plata was mentally capable and it was therefore legal to execute him.

Plata, whose mother said his brain had been denied oxygen at birth because of an umbilical cord tied around his neck that led a nurse to assume he would have cognitive difficulties, was interviewed by Denkowski, who then concluded that Plata had a score of 77, high enough to be deemed sufficiently psychologically aware to execute.

However, the article points to Denkowski making assumptions during the test (specifically of the English-language ability of Plata, a Mexican immigrant), making non-procedural changes such as rewording test questions he asked the defendant, and giving Plata more points than some answers merited. Each of the sessions was videotaped by Plata's attorney.

Denkowski has thus far testified in nearly two-thirds of the appeals related to a death row prisoner's mental ability in Texas -- 29 cases. He found the defendants mentally disabled only eight times.

Robert Morrow, an attorney familiar with Denkowski's cases, said that he [Denkowski] had an "almost Dr. Death status" among defense lawyers, and "Denkowski pretty much thought that if you had engaged in criminal behavior you were not retarded."

Though Denkowski concluded that Plata was not mentally retarded, a psychologist hired by Plata's lawyer did find him to be, and after hearing the case U.S. District Court Judge Brock Ellis ruled that Plata is "a person with mild retardation" and should be removed from Death Row.

Not all the inmates interviewed in Texas's system have been so lucky. Only 13 men have been removed from Death Row in Texas since 2002 because of their low mental development -- 28 percent of cases appealed under the Atkins ruling, while the national rate is 40 percent.

"I suppose you could imagine that Texas Death Row inmates are smarter than everyone else," said Sheri Lynn Johnson, a professor at Cornell Law School who co-directs its Death Penalty Project, "but I'd be surprised."

An additional eight states have passed laws that make use of the clinical definition for mental retardation in the Atkins case -- Texas has not been one of them. In 2001, the Texas legislature passed a law allowing life sentences for mentally retarded people who have committed capital crimes. However, Gov. Rick Perry did not allow the measure to pass, saying it amounted to a "backdoor attempt to ban the death penalty."

Since Ellis's decision to disregard Denkowski's decision in Plata's case, Jerome Brown, another Texas psychologist, filed a complaint with the Texas State Board of Examiners of Psychologists.

Brown, who worked with defendants in five cases where Denkowski worked for the prosecution, said the techniques used by Denkowski ultimately amounted to "essentially junk science. It is science that appears to be scientific, but it doesn't have any background of validation to it."

The state Board of Examiners of Psychologists recognized Brown's complaint, and said that Denkowski had made "administration, scoring and mathematical errors" in three cases, including the Plata case. Denkowski has a hearing scheduled for February 16 in Austin, Texas, at which he risks losing his license.

The cases of Steven Butler and Joel Escobedo, inmates now on Death Row, have been put aside until the results of Denkowski's hearing are known, and there are several other requests for appeals.

The Harris County District Attorney's Office [said it] no longer works with Denkowski since his evaluation of Plata was overturned.

Plata's lawyer, Kathryn Kase, said all of Denkowski's cases should be reviewed. "When you have junk science in a case, it's like pouring poison into a punch bowl," she said. "You aren't going to get the poison out. So you have to pour out the punch, clean the bowl, and start all over again."

Source / truthout

• See "Cracked: Despite a U.S. Supreme Court ban, Texas has continued to send mentally retarded criminals to death row," By Renée Feltz / The Texas Observer / January 8, 2010
• Go here for The Texas Observer's interactive graphic featuring Dr. George Denkowski's 29 "Atkins" cases.

Democracy Now!'s Amy Goodman interviews
The Texas Observer's Renée Feltz

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Texas and the Killing Chamber

'At the execution facility in Texas, there is seating for people who have come to take their satisfaction from seeing an act of death.'

By Greg Moses / The Rag Blog / January 31, 2009

I don't know much about death. I've seen very little of it up close, and I'd like to see less of it on TV. But I have this idea that the less death we cause each other, the better.

However, the death penalty seems to be based on another kind of idea. The world will be better, says the death penalty, if we all get together and make one death more.

At the execution facility in Texas, there is seating for people who have come to take their satisfaction from seeing an act of death.

I think I understand what satisfaction they are taking from the scene as they watch a person die who has killed one or two or three or more people. I think I understand what it must be like to live with a killed friend, daughter, or child while the killer lives. I think I understand the sense of how that state of things would seem absolutely unfair.

Why should any thief be allowed to keep what he has stolen? Has the killer not stolen life itself?

On another side of the killing chamber, Texas provides seats for the family and guests of the executee. Now it must be terrible enough to be told that your loved one has been killed. But to mark on your calendar a date and then travel to Huntsville and take a seat at some appointed time and watch? I have trouble seeing how that can seem like a fair thing to put somebody through.

At least three times recently in Texas, the people who watched the death act did not see a killer killed, because the executee was later discovered to be innocent. In those three cases, what would we call what the witnesses to death are going through today as they think about watching the killing of an innocent man?

We live in an age of pop probabilities. People who hate statistics most of the time can argue pretty quickly that the percentage of wrongful killings on death row is acceptable. It's like the way we average the news of collateral damage. In the effort to kill rightly we sometimes kill wrongly. Doesn't make right wrong, does it?

Last week in Texas they held two scheduled killings. One was filled with witnesses and a real, last-minute act. The executee accused one of the victims of at least two of the killings as the victims' families looked on.

The other execution was silent, apparently. Nobody came to watch. Nothing was said.

Will Texas next week be a better state thanks to last week's two killings? Have two thieves been forced to return what they had stolen?

There is no returning a stolen life.

[Greg Moses edits the Texas Civil Rights Review.]

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Texas Death Row : Certain Death, Uncertain Justice

Larry Swearingen is scheduled to be executed Jan. 27 even though the crime he is charged with probably took place while he was locked up.

If the three men are executed they will be counted as numbers 427, 428, and 429 on the official list of persons executed by Texas since the death penalty was re-instated in 1982.

By Greg Moses / The Rag Blog / January 25, 2009

During the last week of January 2009 the state of Texas is scheduled to execute three men by means of lethal injection. Each case raises a significant question about administering certain death in a world of uncertain justice.

If the three men are executed they will be counted as numbers 427, 428, and 429 on the official list of persons executed by Texas since the death penalty was re-instated in 1982. As one of 36 states that has carried out the death penalty since 1976, Texas accounts for nearly 40 percent of the executions (see the fact sheet in pdf format at deathpenaltyinfo.org

On Tuesday, Larry Swearingen is scheduled to be executed for a crime that probably took place while he was in jail. Texas blogger Scott Henson reviews the facts at Grits for Breakfast. Questions about the Swearingen case have been joined by Texas Monthly and The Houston Chronicle. It is difficult to imagine that the execution would be allowed to take place with so many credible doubts being echoed.

On Wednesday, Virgil Martinez is scheduled to be killed for shooting to death an ex-girlfriend, a friend who tried to save her, and two of her children. It was an awful crime. But Martinez was arrested at a mental hospital where he had admitted himself for hearing voices ordering him to kill, and jurors were never told that he suffered from temporal lobe epilepsy (TLE). The Brazosport Facts published a good overview of the Martinez case in 2006.

According to federal court records accessed by the Texas Civil Rights Review, a magistrate judge concluded in 2005, and a federal district judge agreed in 2006, that the trial attorney for Martinez could have made better use of medical evidence about TLE and "post-seizure aggression."

The federal documents further indicate that Martinez did exhibit "bizarre and at times violent behavior" during his time at a mental hospital.

But in 2007 a federal appeals panel argued that the trial attorney for Martinez was justified in not telling jurors that the defendant had a condition that could cause "savage and uncontrolled" aggressiveness. The attorney argued that presenting the information, along with other facts about Martinez’ history of aggression and jealousy, might have increased the jury’s likelihood of arriving at a penalty of death.

The appeals panel agreed with the magistrate and district judges that the lawyer did not at the time of the trial understand the difference between violence during a seizure and "post-seizure" aggression. And she therefore may have discounted the value of the medical evidence for the wrong reasons. But, giving strict attention to the question that was put to them, the appeals panel refused to label this failure as a mark of attorney incompetence.

The federal review of the Martinez case strengthened the case for “medical” causes that may have played a role in the shooting rampage that left four people dead. But the new medical findings were given no procedural value in the process of appeal.

So it may still be the case that "post-seizure" aggression is a medical condition that affects Martinez, and which affected him at the time of the four killings. Setting aside the question about whether his lawyer was competent in selecting a defense strategy under the circumstances of the trial, the appeals record has produced a fact that is significant.

Perhaps there is a legal way to put the question that will result in a stay for Martinez.

On Thursday, Ricardo Ortiz is scheduled to be killed by lethal injection because he was convicted of lethally injecting a cellmate with a triple dose of heroin.

So far, the Texas Civil Rights Review has found only a few hundred words of documentation in the case, but they are deeply troubling on their face.

Slim facts posted by Texas prison authorities says that Ortiz and two other cellmates cooked up three doses of heroin in an El Paso cell and that Ortiz injected all three doses into the victim who died of an overdose.

The Texas Attorney General stated this week that Ortiz committed the crime in order to prevent his cellmate “from testifying against him” about some bank robberies.

From the little we know, here is what Texas officials would have us believe: they held a prisoner in an El Paso cell with someone who could testify against him. Then they allowed three doses of heroin into the cell along with cooking utensils and at least one syringe. Then they didn't smell a thing while the heroin was cooking, and didn't notice a thing until the next cell count revealed a dead prisoner.

In the case of Ricardo Ortiz, the official accounts beg us to ask: are Texas authorities so into lethal injections that they'd set up the ideal conditions for one and then use their own malpractice as a foundation to practice another?

Although three executions in a row are scheduled for Texas next week, a state of more perfect criminal justice will see three stays down there on death row.

[Greg Moses edits the Texas Civil Rights Review.]

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