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How I’ll Be Spending My Days

This (via Brian Rogers, is what I’ll be watching when I’m not otherwise occupied in the next couple of weeks: the hearing in the 177th District Court on whether Texas’s death penalty procedure violates the Eight Amendment because it creates a significant risk that an innocent person will be executed.

Signed by capital defense veteran Dick Burr, the motion filed by the defense provides a thorough and erudite summary of the reasons that innocent people have most likely been executed in Texas. First, five problems inherent to the seeking of death:

  1. Crime clearance rates and pressure on the police;

  2. Publicity;

  3. Death qualification of prospective jurors;

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

  5. The tendency of capital juries to consider punishment before determining guilt.

Then, seven problems that exist at the trial level in Texas death-penalty cases (but that could be avoided):

  1. Inadequate compensation of jurors results in jury pools that are not representative of a fair cross-section of the community, diminishing the protection afforded by the jury against overzealous prosecution;

  2. Eyewitness identification testimony obtained without safeguards to reduce the risk of misidentification;

  3. Confessions without procedures necessary to guard against false confession;

  4. Perjured testimony by compensated informants;

  5. Junk forensic testimony;

  6. Inadequate pretrial discovery procedures; and

  7. Juries selected in a racially discriminatory manner.

Finally, two procedures that should guard against wrongful executions, but that in Texas “are so flawed that they contribute to the risk”:

  1. State habeas proceedings; and

  2. Clemency proceedings.

Here, for my fellow law geeks (especially Jeff Gamso), is the motion: Green Amended Motion to Declare Texas Death Penalty Procedure Unconstitutional


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