Execution Watch: 8/21/2019

Texas cranks up the death machine again on Wednesday night...

LARRY SWEARINGEN, condemned in the December 1988 slaying of a woman last seen on the campus of Montgomery Community College. The execution date is the sixth one Mr. Swearingen has received; the courts granted him stays of execution for the previous dates. He has steadfastly proclaimed his innocence and protested the lack of physical evidence linking him to the murder. Court-ordered DNA testing, some completed as late as 2019, has been inconclusive. Mr. Swearingen has challenged the use of questionable science in evidence presented at trial.

When asked how he squares his pro-life stance when it comes to banning abortion to his enthusiastic embrace of the death penalty, Texas Governor Greg Abbott hadn't the slightest clue what to say.

See also:

Blakinger, Keri, "'Death row inmate Larry Swearingen denied clemency before Wednesday execution," Houston Chronicle (8/19/2019)

Davies, David, "How 'Body Ranch' research impacts the appeal of a Texas death row inmate," Texas Public Radio (8/19/2019)

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Wednesday, August 21, 2019, 6-7 PM Central Time

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http://executionwatch.org > Listen

Update: Execution put on hold

Today a federal district judge granted Dexter Johnson's request for a stay of execution - but not because of claims of brain damage and intellectual disability. The court stayed the execution so that federal public defender Jeremy Schepers can continue his investigation into whether or not Mr. Johnson's appellate attorney, Patrick McCann was ineffective.

For the time being, Mr. McCann and Mr. Shepers are both representing Mr. Johnson. The court will decide later whether to schedule a hearing to determine whether Mr. McCann should be removed from the case.

The stay could still be overturned by the 5th Circuit Court of Appeals.

Execution Watch: 5/2/2019

On Thursday night Texas will murder again...

DEXTER JOHNSON, condemned for the slaying of a couple in 2006 during a carjacking committed in Houston with four accomplices. Mr. Johnson has fought his conviction during his time on death row, filing appeals based on ineffective assistance of counsel, racial bias, intellectual disability, brain damage and his long history of schizophrenia and psychotic breaks.

On April 29, 2019, the Court of Criminal Appeals denied Mr. Johnson's request for a stay on the grounds that executing an intellectually disabled person is a violation of the Eighth and Fourteenth Amendments.

At what point is one suffering from brain damage culpable for his bad acts? If a person's brain doesn't function normally, should that person be held accountable for his actions? It's a question, quite frankly, that the criminal (in)justice system isn't equipped to handle. As I have said in the past, a trial is not an arena to determine the truth. It is, instead, a performance of competing narratives with jurors being asked which one they accept. There is no room for the grey area of intellectual capacity.

As an aside, I know Mr. Johnson's former appellate attorney, Pat McCann. Pat is one of the finest lawyers I know. I find the allegations against him hard to believe.

See also:

Marloff, Sarah, "Death Watch: Was Dexter Johnson condemned by his own attorney?" Austin Chronicle (4/26/19)

Blakinger, Keri, "'I can't forgive till you're dead': Execution set for brain-damaged Texas man behind four killings," San Antonio Express-News (12/6/18)

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EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Thursday, May 2, 2019, 6-7 PM Central Time

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In the name of god, I discriminate against you

If you listen to Republicans such as Lt. Gov. Dan Patrick, Senate Bill 17 provides relief for those occupational holders who have sincere religious beliefs. Of course, getting past the fact that back in the day Mr. Patrick, when he was the sports director at KHOU in Houston, once painted himself blue on television, is a little bit difficult.

For the rest of us, Senate Bill 17 would allow license holders to discriminate against members of the public whose lifestyles offend their sincerely held religious beliefs.

This bill is aimed specifically at the LGBT community in Texas and it would legalize discrimination on the basis of religious belief. No word on whether a license holder who attends a white nationalist church would be able to refuse service to African-American or Latino customers if it offended his religious beliefs.

It's no surprise that the sponsor of the bill is from a most rural area of the state around Lubbock. In many ways, once you get too far west of I-35, you enter a land that time forgot.

Once again we see religion used as a justification for discrimination. I'm sure there are those of y'all who will tell me it's an abuse of religion to use it for hate and discrimination. I would beg to differ. 

Religion serves two purposes: first, it serves to justify the existing order as somehow ordained by god; second, it serves to divide the masses so that those in power can maintain their grip on power. 

As to the first point, all you have to do is listen to the charlatans standing in the pulpit telling their followers that their suffering is proof of god's existence and love. The point is to distract the masses from the underlying forces that keep them poor. You feed someone enough of this suffer on earth and live high on the hog in heaven and they will start to believe it. They won't question the relationship between capital and labor. They will resist scientifically-based arguments regarding the harm we are doing to the planet because they have been sold on the notion that man is the shepherd of the planet and it's all in god's hands.

As to the second point, all you have to do is look at the history of war on this planet. Religious difference has long been the justification for bloodshed and it will continue to be. The Catholic church went to war against native peoples in its never-ending quest for gold and material wealth. The protestants led the charge against the native peoples in this country in search of cheap land and resources. Major denominations split in the mid 1800's over the question of slavery. The Southern Baptist Convention owes its existence to its biblical defense of slavery. And let's not forget that white churches fought against the end of Jim Crow in the last century. Then there are the white, evangelical churches in the suburbs and rural areas who encouraged their members to vote for a racist man whose on his third marriage and paid off a porn star he was sleeping with.

Now we have companies such as Hobby Lobby who don't want to provide contraceptive coverage to their employees and justify their refusal with a call to religion. We have bakers who justify their refusal to bake cakes for gay customers on their religious beliefs. And now we will have more service companies in Texas who won't even try to hide their bigotry as they wave a bible at customers they don't wish to serve.

This is not a minority misusing religion to serve their own ends - this is the logical outcome for a society whose founders were religious extremists who left England so they would be free to impose their will on others.

A look into junk science

On the way home from the office the other night I caught the current episode of the Murderish podcast - "Lime Street Fire." The episode concerns an arson investigation in Jacksonville. Jami Rice also covered the Cameron Todd Willingham case earlier this year.

The episode is important because it looks at the evolution of arson investigation. As anyone who has looked into arson cases knows, most of the knowledge an arson investigator has is what has been passed down over the years. There are a number of old saws they pull out of the bag such as pour pattern and v-pattern which they use to peg arson as a cause of a fire.

This case is remarkable because fire experts were brought in to conduct tests to determine whether (1) whether these pour-patterns or v-patterns had any real meaning and (2) whether the fire could have started the way the suspect said it did.

The results were astounding. The investigators found an identical home to the one that burned, set it up just like the home that got burned (down to the brand of furniture) and set it on fire -- not once, but twice. What they found was that the presence of v-patterns had nothing to do with where a fire was started and many so-called pour patterns were the result of flashover.

This episode also illustrates the problem with the introduction of new "forensic sciences" in criminal cases. Over on the civil side judges have no problem deeming scientific evidence inadmissible after Daubert  and Frye hearings. In the criminal courts, however, judges have never been all that keen on performing their gatekeeper roles with regard to scientific evidence.

For far too long the state has been able to introduce so-called scientific evidence without regard as to whether the new science has been thoroughly tested. We've seen bullet alloy analysis, tire track analysis, bite mark analysis and arson investigation, just to name a few, that have all been debunked for the junk they were. It is frightening that judges seem to be more concerned with saving insurance companies money than they do in protecting the rights of criminal defendants.

Execution Watch: 3/28/2019

On Thursday night the Texas killing machine fires up again...

PATRICK MURPHY, convicted under the Texas law of parties, which allows prosecutors to charge a person linked with a murder as if they, too, had pulled the trigger. He was in a group of convicts that in 2000 made the biggest prison escape in Texas history. They broke into a Dallas-area store on Christmas Eve to steal guns. An Irving police officer was shot to death when he responded to a silent alarm. The other escapees said Murphy was the lookout and had no part in the shooting itself. The only other group member still on death row was Randy Halprin. The show will include Execution Watch’s 20-minute interview with Murphy, taped the previous week on death row.

The case raises questions about the law of parties and whether a person who participated in an event in which a person was murdered - but didn't fire a shot - should be considered just as liable for the murder as the man, or men, who pulled the trigger. If we are going to condone the killing of prisoners at the hand of the state, should we draw the line at the people who actually did the killing?

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EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Thursday, March 28, 2019, 6-7 PM Central Time

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Execution Watch: 2/28/2019

Tomorrow night the State of Texas will murder once again...

BILLY COBLE, 70. One of the oldest people on death row, he was sentenced to death for the 1989 murders of his estranged wife's parents and brother in Axtell. The brother was a Waco police officer. On appear, Mr. Coble asserted that his trial was tainted by perjured testimony, an unfair venue and junk science.

The death sentence was thrown out in 2007 because the Fifth Circuit Court of Appeals held that the trial judge erred in instructing the jury. A new sentencing hearing was held in 2008 and featured the testimony of Dr. Richard Coons who predicted that Mr. Coble would be a danger to those around him - even in prison. The only problem was Mr. Coble had no disciplinary reports after 18 years on death row. Dr. Coons later admitted that there was no peer-reviewed science behind his predictions and that he had his own methodology that he followed.

The state also relied on the testimony of prison investigator A.P. Merillat who regaled the jury with tales of how dangerous Texas prisons could be. He was later found to be an unreliable witness.

In 2010 the Court of Criminal Appeals agreed that the testimony of Dr. Coons and Mr. Merillat should not have been allowed, but upheld the sentence due to the harmless error doctrine.

See: "Texas is Planning an Execution Based on Fraudulent Testimony," ACLU, February 26, 2019, by Brian Stull

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EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Thursday, February 28, 2019, 6-7 PM Central Time

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Addendum to a botched drug raid

Here is a link to the actual warrant for the botched drug raid. The article states that the warrant had been uplifted to Scribd, but when you check the link you will find that the warrant has been removed from the site. I guess there is a limit to Art Acevedo's transparency when the shit hits the fan.

According to the Houston Chronicle, the police seized 18 grams of marijuana and 1.5 grams of cocaine from the house. That's right, a little more than half-an-ounce of weed and little powder.

So here's my question, did the police kick in the wrong door or did they just flat out lie in the warrant application? It's one or the other.

What say you, Joe Gamaldi?

Anatomy of a botched drug raid

Last month five officers from the Houston Police Department were injured - four were shot - in a drug raid gone incredibly wrong. At the time we were barraged with statements from HPD that the police raided the house, shot the dogs and killed the residents, Donald Tuttle and Rhogena Nicholas, because a confidential informant told them the couple had heroin and guns in the house.

Joe Gamaldi, the head of the local police union, claimed the police had targets on their backs and that he was sick and tired of people claiming the police were the bad guys. He even threatened to keep tabs on those who criticized the police. Woo-hoo! Over here, Joe!

The local media - never ones to look too deeply into any story involving the police - ate it up. The local media never once questioned the reliability of the informant or the rationale behind a "dynamic" entry.

But there was a problem. There was no heroin in the house. There was a small amount of marijuana and cocaine. There were rifles and shotguns, but there was no evidence that they were obtained illegally.

Neighbors and relatives told anyone who would listen that neither Mr. Tuttle nor Ms. Nicholas were involved in the drug trade. Neither had any convictions for drug activity. Neither had any convictions for violent behavior.

Police Chief Art Acevedo (doing his best to play a prevent defense) told the media that police had received a tip from an anonymous called that there were guns and heroin inside the house. Police then sent their informant into the house to get some heroin. They claim he came out with the drug and a tale the house was a veritable Wal-Mart of heroin.

If anyone knows how this shit works in Houston, it should come as no surprise that the officers went to a judge in the municipal courthouse (where the primary business of the day is traffic court) to find a judge who would sign the warrant without asking any pesky questions about probable cause or the need for a "no-knock" warrant. Needless to say, they found a very pliant judge on Lubbock Street.

Since the jump-out boys were from narcotics, no one was wearing bodycams at the time of the raid. I get it. The last thing the police want the public to see is just how much of a shit show these raids turn into.

And now an unnamed officer involved in the raid has been relieved of duty pending an investigation into the botched raid.

For those of y'all keeping score on this, the search warrant said the police believed that heroin and handguns would be found in the house. Neither were.

If anyone out there has any delusion that the police follow a rigid procedure in obtaining evidence, drafting a warrant application and discussing with a judge why the warrant needs to be served, you may now put your glasses back on and witness just how this process works.

In reality the warrant applications filed by the police - and prosecutors - are fill-in-the-blank cookie-cutter forms where the affiant cuts and pastes the basis of his suspicion. This suspicion can rarely be backed up by anything resembling articulable facts. These affidavits are presented to judges who preside over traffic courts who sign them without raising any questions.

The result is what happened in Houston last month. This should be Exhibit A in a lesson as to why the war on drugs has been an abject failure.

See also:

Blakinger, Keri, et al. "Houston police officer connected to deadly raid, shootout relieved of duty," Houston Chronicle (2/8/2019)

Reigstad, Leif, "A no-knock raid in Houston led to deaths and police injuries. Should police rethink the process?" Texas Monthly (2/12019)

Blakinger, Keri and Stephen Tucker Paulson, "Police identify powder recovered in deadly drug raid" Houston Chronicle 2/2/2019)

Execution Watch: 1/30/2019

Tonight the Texas killing machine is back in action...

ROBERT JENNINGS. Sentenced to death for the 1988 shooting of a Houston Police vice officer at an adult bookstore, Mr. Jennings was on parole at the time of the killing. Witnesses said the vice officer was arresting a bookstore clerk for showing movies without a license. Just then, Mr. Jennings walked in with the intention of robbing the place, saw the officer and opened fire. Mr. Jennings' attorneys questioned, among other things, whether proper instructions were given to the jury during the punishment phase of the trial.

See: "Houston cop killer gets execution date for 1988 slaying," Houston Chronicle, July 31, 2018 by Keri Blakinger

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Wednesday, January 30, 2019, 6-7 PM Central Time

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http://executionwatch.org > Listen

The state of MLK Day 2019

On this MLK Day, perhaps it's time we took a step back and re-examine some issues. First, to all the Republicans and other conservatives that love taking phrases from King's speeches and writings out of context to promote their own political philosophy -- stop it! When Mike Pence gets up and quotes MLK and then goes into a tirade as to why a wall on the southern border is needed, he is being more than intellectually dishonest.

For those of y'all too young to remember, conservatives (regardless of their party affiliation) were strongly opposed to Dr. King's message. They were opposed to the black students who sat down at lunch counters across the South. That was rabble rousing, they would say. They disapproved of marches and protests. They blamed it on those damn radicals. They fought school desegregation and found new ways to perpetuate it in the suburbs thanks to white flight. Mainstream liberals went off the rails when Dr. King came out against the Vietnam War.

To have someone as reprehensible as Mike Pence whitewashing the words of Dr. King makes me sick. To use the words as a justification for a program that would promote further discrimination against Latinos angers me.

But all the white conservatives will pipe up about non-violence - even though the police continue to shoot unarmed black men and women across this country. They will talk about our colorblind society - even though we have a criminal (in)justice system that discriminates against the poor and people of color.

And, at the same time, they will continue to support the NFL's blackballing of Colin Kaepernick for the outrageous "sin" of protesting against police violence against black folk. His protest was peaceful. Yet somehow he can't find a spot as a quarterback even while teams are signing players who can't hold a candle to his achievements or potential.

The entire discussion around Colin Kaepernick distills the issues Martin Luther King, Jr., brought to the nation's forefront. Kaepernick did exactly what conservatives want - he protested peacefully. But that wasn't enough. You see, it's not the type of protest that conservatives care about -- it's who's protesting. Colin Kaepernick's biggest "sin" was being black and taking a stand.

Thanks to the climate of hatred whipped up by political leaders in the 50's and 60's, Dr. King was struck down by an assassin's bullet at the age of 39. He was silenced because he spoke out.

And sadly, because we live in a country that worships capitalism and consumerism like religions, his memory has been largely commodified and used as a reason for yet another sale.

Update: Court stays Milam execution

On Monday, the Court of Criminal Appeals stayed the execution of Blaine Milam. The Court granted the stay due to questions on about the reliability of bite mark evidence and to determine whether Mr. Milam's intellectual disability makes him ineligible for execution.

Monday's stay is the first since death penalty opponent Elsa Alcala left the bench. Her replacement, the newly elected Michelle Slaughter, along with Sharon "Killer" Keller and Kevin Yeary, voted against the stay.

Somehow it's no surprise that Judge Slaughter, whose only apparent qualification for the Court would seem to be the R after her name, has already cozied up to Judge Keller who is best known for closing the clerk's office to prevent an appeal from being filed in a death penalty case. Judge Slaughter's claim to fame is being required to take a class on the ethical use of social media after she commented about an ongoing case on social media. A mistrial was declared and the defendant was later acquitted.

Execution Watch 1/15/2019

On Tuesday night, the State of Texas will take another life...

BLAINE MILAM. Was he in drug-induced psychosis when a child died during a so-called exorcism Mr. Milam was involved in? That's what his lawyers say, but they have yet to convince a court that he shouldn't be put to death, and that's what the state intends to do. The appellate attorneys raised claims of prosecutorial misconduct, as well as bad lawyering. They said his trial attorneys failed to present evidence of Mr. Milam's meth habit and his drug-altered state of mind at the time of the slaying. The information might have led to a lesser sentence. Mr. Milam's girlfriend, the mother of the victim, is serving a sentence of life without parole.

See: "Rusk County man convicted in 2008 beating death of infant gets execution date," Longview News-Journal, 9/12/2018

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EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Tuesday, January 15, 2019, 6-7 PM Central Time

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Throwing in the towel (finally)

Now it's over.

Yesterday the lawsuit filed by the former Republican misdemeanor judges was dismissed on a motion filed by the 15 incoming Democratic judges. Judge Darrell Jordan was never a part of the original lawsuit - he was later joined in his opposition by Mike Fields, the former judge in Court 14.

The dismissal of the suit means that Harris County elected officials will stop wasting taxpayer money defending an unconstitutional bail system. The outgoing judges fought tooth and nail to walk back US District Judge Lee Rosenthal's order. They knew that the leverage the courts had over indigent defendants was based on a bail system designed to keep them behind bars.

Under the old rules the county magistrates (who preside over probable cause hearings at the jail) would take out a chart, look up the offense, check for priors and then find the corresponding bail amount. Never once did the magistrate bother to ask if the defendant could afford bail. Not once did the magistrate bother to ask what amount, if any, could the defendant afford. The defendants weren't represented by counsel and had no idea they could ask for a personal bond (not that any of the magistrates would have given anyone such a bond).

This system insured that indigent defendants would jump at the opportunity to dispose of their cases for a guilty plea and time served. Court-appointed counsel were only too willing to go along with this charade of justice - lest they piss off the court that was paying them.

The result was a plea mill. Defendants would be led into the courtroom like a chain gang and would stand in front of the judge. The judge would spend no more than a minute or two on each case and the chain gang would be led back into the holdover.

This system guaranteed convictions for prosecutors, fewer pending cases for the judges and convictions for the defendants.

Those days are now in the past. Defendants who couldn't afford to post bond in the past will now be released on personal bonds and will be able to assist in their defense. They will be able to sleep in their own beds, see their families and go to their jobs.

No longer will a misdemeanor defendant have to make that agonizing decision on whether to fight his case or cop a plea to get out of jail.

A tip of my hat to the new judges who made this happen.

Junk science and guns

Are the ejector marks from a handgun unique?

How many handguns would you have to fire in order to make that conclusion?

The Bureau of Alcohol, Tobacco, Firearms and Explosives would like you to believe the answer to the first question is yes and that the answer to the second question is irrelevant.

Back in 1999 the BATFE (known then as the ATF) created the National Integrated Ballistics Information Network (NIBIN), a database of high resolution images of bullet casings. The database was used by forensic examiners to testify at trial regarding the likelihood of a particular gun being used in a crime. Thanks to the Department of Justice, local police departments now have access to the database for use in investigating gun crimes.

But has anyone bothered to verify that the assumption that every gun leaves a unique mark on a bullet casing accurate?

This is the problem we run into with every new "forensic tool" created by law enforcement. We've seen it with tire tread analysis, bullet composition, bite mark evidence, and others. A forensic "scientist" comes up with a theory - and without checking it using the scientific method - declares that this new tool will allow the police to catch the bad guys.

But what tends to happen is the police take whatever "evidence" they uncover and use it subjectively to create a narrative that their leading suspect is the bad guy - even if it leads them in the completely wrong direction.

If you've read The Cadaver King and the Country Dentist by Radley Balko and Tucker Carrington then you know where I'm headed. If you haven't read it, then stop what you're doing right now and get the book. In many investigations the police hone in on the person they think is the most likely culprit - often on little more than a hunch. They look for evidence that points to their suspect and ignore evidence that contradicts their narrative (one of the reasons that Brady material is withheld from defense attorneys). And if the narrative makes little or no sense, they bring in a forensic examiner who will gladly resort to pseudo-scientific methods to create evidence pinning the blame on the guy the police were looking at in the first place.

Just think about it, soon the local authorities will take a bullet casing and will compare the marks on it to the NIBIN database. As soon as the algorithm matches the bullet casing the police recovered with an image in the database, the police will go after the owner of that gun -- never once questioning the assumption that no other gun would leave the same mark.

In 2013 a Mississippi man's life was spared hours before his scheduled execution after the FBI said experts had overstated the science. In a note sent to the district attorney in that case, the bureau clarified that "the science regarding firearms examinations does not permit examiner testimony that a specific gun fired a specific bullet to the exclusion of all other guns in the world."

Should the case go to trial the court, which long ago ceded its gatekeeping role with regard to scientific evidence will allow the gun examiner to testify to the unique characteristics of the ejector marks without once questioning whether there is any science behind the assertion. Of course this might work out differently in civil court where judges are only too happy to exclude any new scientific evidence that might result in insurance companies having to pay off claims.

Every new forensic tool (for lack of a better phrase) wants to portray itself as some type of a "fngerprint" since we have all bought into the assumption that our fingerprints are unique. While fingerprints and DNA profiles may very well be unique to an individual, there is little or no evidence that anything else is. Tire treads and shoe soles might have unique wear patterns, but the surface in which the imprint is left and the means by which that imprint is transferred to the surface make the analysis anything but precise.

Just remember what they say about assumptions.