green amended motion to declare texas death penalty procedure unconstitutional

8/8/2019 Green Amended Motion to Declare Texas Death Penalty Procedure Unconstitutional

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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


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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 notexecuted, 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 ones 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 violationof due process to execute an innocent defendant; second, it must be determinedwhether or not the State of Texas under 37.07(1) [sic] has, in fact, executed aninnocent person; and, finally, if they have executed an innocent person, does thedefendant 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,


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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. Greens 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 ofFurman 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


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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. InBeck, 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 andBeck, the Court has continued to analyze the Eighth

Amendments 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), revdby 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


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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] defendants 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. InHerrera 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 orthe Due Process Clause. Id. at 398.

1The 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. Greens. By contrast, in Furman,Justices Brennan and Marshall would have found the death penalty violated the Eighth Amendmentper se. Furman,408 U.S. at 257 (Brennan, J., concurring); id. at 314 (Marshall, J., concurring). In support of this position, JusticeMarshall cited, as one of many arguments, the risk of executing an innocent person. Id. at 366-388. Mr. Green isrelying on the same risk but is not arguing that the death penalty is unconstitutionalper se as a result of that risk.


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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 inHerrera 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 nothold that when the factors giving

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

Amendments 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 THEAPPLICATION 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 increasingNationally, 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


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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.

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

OConnor, 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 OConnors conclusion that innocent people have likely been executed recognized that

2See alsohttp://deathpenaltyinfo.org/innocence-and-death-penalty. Previously, the Death PenaltyInformation Center list of exonerations included Timothy B. Hennis as one of 139 death-sentenced exonerees, buthis name was removed from the list last week after he was subsequently found guilty in a third trial. See JohnSchwartz,In 3rdTrial, 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 RichardDieter.

3 These criteria mirror those used by experts who study wrongful convictions. See, e.g., Samuel R. Gross etal.,Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 524 (2006) (usingvery similar criteria to count exonerations not limited to people sentenced to death).

4The affidavit of Richard Dieter, numerous articles, reports and other references are included in the separateexhibit volumes for the Courts convenience.


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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 OConnors 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. Poly 329, 335 (2009). Wardens 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

persons 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 victims had been detected. Id. (emphasis supplied). More advanced


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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 mens

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.


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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 AmericanLaw 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 haveconfidence in the criminal justice system as it currently operates to be the finalarbiter when it comes to who lives and who dies for their crime. If the State isgoing to undertake this awesome responsibility, the system to impose this ultimatepenalty must be perfect and can never be wrong. But the reality is the system isnot perfect far from it. The system is inherently defective. DNA testing hasproven that. Innocent people have been put on death row all across the country.Even with advances in DNA and other forensic evidence technologies, we cantbe 100-percent sure that only the truly guilty are convicted of capital crimes.Evidence, including DNA evidence, can be manipulated. Prosecutors can stillabuse their powers. We cannot ensure competent defense counsel for alldefendants. The sad truth is the wrong person can still be convicted in this dayand 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.

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

5 Radelets article cites to a study by Samuel Gross showing that only a fraction of the wrongly convictedare exonerated. Id. (Samuel R. Gross & Barbara O'Brien, Frequency and Predictors of False Conviction: Why WeKnow So Little, and New Data on Capital Cases, 5 J. Empirical Legal Stud. 927 (2008)).


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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 commissions 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 OMalley wrote in a 2007 Washington Postopinion

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 states 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-


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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 OMalleys

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

any death-penalty state in the Nation. Marylands 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 dont know how


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you explain that to a mother whose child is completely innocent and who is murdered by

the state for something they didnt 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)).


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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 OConnor 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 ofcertiorari). 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 Amendments 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


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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 mustbe addressed. When the Governor of Illinois imposed a moratorium onexecutions in 2000, 13 prisoners under death sentences had been released since1977 after a number of them were shown to be innocent, as described in a reportwhich used their examples to illustrate a theme common to all 13, of relativelylittle solid evidence connecting the charged defendants to the crimes. State ofIllinois, G. Ryan, Governor,Report of the Governor's Commission on CapitalPunishment: Recommendations Only 7 (Apr.2002) (hereinafter Report); see alsoid., at 5-6, 7-9. During the same period, 12 condemned convicts had beenexecuted. Subsequently the Governor determined that four more death row

inmates were innocent. See id., at 5-6; Warden,Illinois Death Penalty Reform , 95J.Crim. L. & C. 381, 382, and n. 6 (2005). Illinois had thus wrongly convictedand condemned even more capital defendants than it had executed, but it maywell not have been otherwise unique; one recent study reports that between 1989and 2003, 74 American prisoners condemned to death were exonerated, Gross,Jacoby, Matheson, Montgomery, & Patil,Exonerations in the United States 1989Through 2003, 95 J.Crim. L. & C. 523, 531 (2006) (hereinafter Gross), many ofthem cleared by DNA evidence, ibid. Another report states that more than 110death row prisoners have been released since 1973 upon findings that they wereinnocent of the crimes charged, and [h]undreds of additional wrongfulconvictions in potentially capital cases have been documented over the pastcentury. Lanier & Acker, Capital Punishment, the Moratorium Movement, andEmpirical Questions , 10 Psychology, Public Policy & Law 577, 593 (2004).Most of these wrongful convictions and sentences resulted from eyewitnessmisidentification, false confession, and (most frequently) perjury, Gross 544, 551-552, and the total shows that among all prosecutions homicide cases suffer anunusually high incidence of false conviction, id., at 532, 552, probably owing tothe combined difficulty of investigating without help from the victim, intensepressure to get convictions in homicide cases, and the corresponding incentive forthe 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.


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InBaze 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 theconsequences is of decisive importance to me. Whether or not any innocentdefendants have actually been executed, abundant evidence accumulated in recentyears has resulted in the exoneration of an unacceptable number of defendantsfound guilty of capital offenses. See Garrett,Judging Innocence, 108 Colum.L.Rev. 55 (2008); Risinger,Innocents Convicted: An Empirically JustifiedFactual Wrongful Conviction Rate, 97 J.Crim. L. & C. 761 (2007). The risk ofexecuting innocent defendants can be entirely eliminated by treating any penaltymore severe than life imprisonment without the possibility of parole asconstitutionally 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 Courts 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.

6See Ward v. Hall, __F.3d __ 2010 WL 6761, 19 (11th Cir. 2010) (finding pursuit of residual doubtdefense 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. 2d1040, 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).


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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 Institutes 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 its 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 Institutes 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

7See Gregg, 428 U.S. at 193 (quoting Model Penal Code drafters statement that it is within the realm ofpossibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighedagainst 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


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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 Councils 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 ofaggravating factors in Florida and Georgia).


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Following the submission of these reports, on May 19, 2009, the Institutes membership

approved the following motion by a show of hands:

That, for reasons stated in Part V of the Councils report to the membership, the

Institute withdraws Section 210.6 of the Model Penal Code in light of the currentintractable institutional and structural obstacles to ensuring a minimally adequatesystem 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 capitalcases

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 policeMost 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),


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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 arenot known to the police in 1993, only 35% of all crimes, and 42% of crimesof 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% ofrapes, 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 thedeceased 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 aboutfour 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 ismuch more likely to be concerned, and the police themselves care more. Deathproduces strong reactions in this context, a desire to punish and to protect. Otheroutrageous crimes can have the same effect kidnappings, for example, or serialrapes 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 readilysolved, the police may be tempted to cut corners, to jump to conclusions, and ifthey believe they have the killer perhaps to manufacture evidence to clinch thecase. The danger that the investigators will go too far is magnified to the extentthat the killing is brutal and horrifying, and to the extent that it attracts publicattention factors which also increase the likelihood that the murder will betreated as a capital case.


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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. PublicityProfessor 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. Afew crimes, however, are heavily publicized. Many, perhaps most of these

notorious crimes are homicides, and especially the unusual and heinous homicideswhich are likely to be charged as capital crimes. In those cases, most jurors willhave heard all sorts of things about the case before they got to court, many ofthem inadmissible, misleading and inflammatory. They may have seen or heardor read police officers or other government officials declare the defendant guilty.They may have witnessed or felt a general sense of communal outrage. All thiswill make them more likely to convict. Courts may attempt to mitigate the impactof pre-trial publicity by various means most effectively by changing the locationof the trial or they refuse to do so. As a result, the records of erroneousconvictions include scores of cases in which publicity and public outrage clearlycontributed to the error from the convictions of Leo Frank in 1913 and theScottsboro Boys in 1931, to the conviction of Rolando Cruz and AlejandroHernandez in 1985.

Id. at 494 (footnotes omitted).

iii. Death qualification of prospective jurorsThe 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


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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 defendants innocence and accept the prosecutions version of the facts.

Zeisels 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.


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

founded largely in response to the decision inLockhart 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

theLockhartCourts concerns, the CJP data nonetheless confirms what Professor Zeisels 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 ofthe National Science Foundation. The CJP researches the decision-making of actual capital jurors. The CJPsinterviews chronicle the jurors experiences and decision-making over the course of the trial, identify points atwhich 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 conclusionsdrawn from the CJP are universal in that they show how a juror thinks and makes decisions. The fact that the jurormay have sat in a courts deliberation room in Texas, or Alabama or Florida is of no moment to whether capitaljurors 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 30capital trials were picked to represent both life and death sentencing outcomes. From each trial, a target sample offour jurors was systematically selected for in-depth three to four-hour personal interviews. Interviewing began inthe 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 the795 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 inscholarly journals. See the Capital Jury Project Website at http://www.albany.edu/scj/CJPpubs.htm for an updatedlisting of CJP related articles, commentaries, and doctoral dissertations.

9See also William C. Thompson, et al.,Death Penalty Attitudes Toward Conviction Proneness: TheTranslation 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, lesssympathy for criminal defendants, more suspicion of defense attorneys, and greater impatience with dueprocess safeguards in criminal trials, id. at 97,

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


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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 ahomogenous jury, whichever explanation seems most intuitively likely to one willseem most intuitively likely to all, and the alternative even if the alternative isthe accurate explanation may never even be considered, simply because nojurors 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 didexcludable jurors. Id. at 103.


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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 ones belief in it. Id.

Haneys 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 prosecutions case for guilt

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

prosecutions 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


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more likely to view the prosecutions 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 teamProfessor 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 thedefense. In extreme cases, fear of death drives innocent defendants to pleadguilty in return for a lesser sentence, even life imprisonment. If the defendantdoes not plead guilty, either because no plea bargain is offered or because he wasunwilling to take it, the same pressure will be felt at trial. It may drive thedefense 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 concedeguilt and focus entirely on punishment. It will certainly distract the defense fromthe issue of guilt and force it to spread its resources more thinly. This distractionmight increase the chances of conviction even for those capital defendants whoare represented by skillful lawyers with adequate resources; it will be far moredamaging for the many capital defendants whose defense is shamefullyinadequate.

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

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

InJurors 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 discussedthe legally irrelevant and likely confounding matter of the defendant's punishmentduring their determination of guilt. Three to four of every ten jurors (33.6% to45.7%) indicated that what the defendant's punishment could be, would be, orshould be was discussed during guilt deliberations. This discussion explicitlyincludes talk of whether the defendant should or would get the death penalty andof what the punishment would be if the jury convicted the defendant of less thancapital murder.


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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 negotiatingor forforcing a trade off between guilt and punishment. One ormore jurors with somedoubts, possibly reasonable doubts, about acapital murder verdict neverthelessmay have agreed to vote guilty ofcapital murder in exchange for an agreementwith pro-deathjurors toabandon the death penalty. However reluctantly, in thisway, bothsides would have avoided the stigma of being a hung jury on eitherguilt or punishment. Furthermore, this compromise forfeits the punishmentdecision to guilt considerations; perhaps less obviously, it alsocontaminates theguilt decision with punishment concerns andthereby nullifies a lesser guilt

verdict[.]

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

Not only does the nature of the punishment distort the jurys 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 defendants guiltfrom their reaction to the heinousness of his conduct: If the evidence isinsufficient, they should be just as willing to acquit a serial murderer as ashoplifter. Nobody believes this. Even in civil trials, where the jury is asked todecide cases by a preponderance of the evidence, there are indications that juries(and judges) are more likely to find defendants liable, on identical evidence, asthe harm to the plaintiff increases. In criminal trials the problem is worse, sincethe burden of persuasion is proof beyond a reasonable doubt. In a close criminalcase the jury is supposed to release a defendant who is in their opinion, probablyguilty. This is a distasteful task under any circumstances, but it becomesincreasingly 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.


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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 ofwrongful 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 prosecutions 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 notrepresentative of a fair cross section of the community, diminishing the

protection afforded by the jury against overzealous prosecution

InDuncan 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


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


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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

prosecutions 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 beenobtained 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


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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, Natl Inst. of Justice, U.S. Dept of Justice,Eyewitness Evidence: A Guide for Law Enforcement(1999), http://www.ojp.usdoj.gov/nij/pubs-sum/178240.htm.

11See, 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 Psychology87 (2002);Gross, S.R., K. Jacoby, D.J. Matheson, N. Montgomery, and S. Patil,Exonerations in the United States, 1989Through 2003, 95 The Journal of Criminal Law & Criminology 95 (2005); Klobuchar, A., and H.L. Caligiuri,Protecting the Innocent/Convicting the Guilty: Hennepin Countys 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 PublicLaw, Policy & Ethics Journal 4 (2006) available athttp://web.augsburg.edu/~steblay/Improving_Eyewitness_Identifications.pdf, Malpass, R.S.,A Policy Evaluation of


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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 persons 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 witnesss 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 Distortstheir 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 AssociationStatement 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.


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lineup, recording all individuals present at the lineup, documentation of the witnesss statements

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

documentation of the witnesss degree of confidence in the identification, in the witnesss 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

13Id.

14Id.


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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 theuse 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.

16Id.

17See IV (G), infra.


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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 suspects 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).

19Id.

20 The Justice Project,Electronic Recording of Custodial Interrogations, A Policy Review, supra.

21Id.


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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 Grosss 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 suspectsMiranda rights and continue, unaltered and

22Id.

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 athttp://www.law.northwestern.edu/depts/clinic/wrongful/documents/SullivanReport.pdf.; Amy Klobuchar,Eye onInterrogations: How Videotaping Serves the Cause of Justice, Washington Postop-ed, June 10, 2002,http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A22566-2002Jun9; AmericanBar 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.


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uninterrupted, until the end of the interview. This requirement benefits law enforcement in that

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

pretrial hearings as to whether or not suspects received theirMiranda 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 ofcustodial 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 thefinal statementnot 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


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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 CurrentStatutes, Practices, and Policies, available at www.thejusticeproject.org.

27Id.

28Id.

29See IV (G), infra.


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iv. Perjured testimony by informants who are paid or provided leniency intheir own cases is often introduced

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

wrongful convictions. In 2000, the bookActual 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 Gr