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Last year was interesting for those tracking what’s happening on Texas’s death row. The State executed seven individuals, leading the nation, but did so in the midst of a massive decline in the overall number of executions in America, and a trend of declining death sentences in Texas. The state’s highest criminal court, the Texas Court of Criminal Appeals (CCA), also postponed multiple executions—at least five of them. We explore those cases here because they reveal an interesting pattern: substantial allegations that prosecutors—either knowingly or unknowingly—introduced false testimony, or relied on scientifically problematic evidence. While it is encouraging that the CCA is taking these cases seriously—or at least requiring lower courts to provide more meaningful review—red flags seem to be flying across the Lone Star State,  considering nearly half the cases scheduled to result in executions in 2017 may have been tainted by false or unreliable evidence.

Paul Storey – Hiding the Victim’s Family’s Support for Life Over Death

The allegations that led the CCA to postpone Paul Storey’s execution raise legal questions and undercut the moral authority of the Tarrant County District Attorney’s office. It turns out that murder victim Jonas Cherry’s parents, Judith and Glenn Cherry, did not and do not want the State to execute Mr. Storey for the crime. Yet, the trial lawyers who represented Mr. Storey never knew about the victim’s family’s opposition to the punishment. According to the defense team, former Tarrant County assistant district attorneys Robert Foran and Christy Jack kept this information hidden. More than that, they misrepresented the Cherrys’ views to the jury. One trial lawyer said, “had he known, he could have raised objections during Jack’s closing argument in Storey’s trial when she told jurors the Cherry family believed the death penalty was appropriate.”

Mr. and Mrs. Cherry not only signed affidavits but also wrote to the governor and the Board of Pardons and Paroles to ask that Mr. Storey be given a life sentence. They conveyed in a statement: “As a result of Jonas’ death, we do not want to see another family having to suffer through losing a child and family member . . .  due to our ethical and spiritual values we are opposed to the death penalty.” The CCA remanded the case in April last year, requiring the lower court to conduct factual development to determine whether these claims must be decided on the merits or on procedural grounds.

Clinton Young – A Death Sentence Based on Unreliable Informant Testimony

In October, the CCA stayed the execution of Clinton Young, whose conviction and death sentence turn on the testimony of a co-defendant (who received a 30-year deal from the prosecution that already has rendered him eligible for parole). It turns out that the co-defendant, David Page, may not have been the most trustworthy witness (surely this should not shock anyone familiar with the criminal justice system, particularly prosecutors). According to the Texas Tribune, “Young’s lawyers claim four jailhouse witnesses have sworn they heard . . . David Page[] brag about killing Samuel Petrey and blaming it on Young.”

The CCA remanded the case to the trial court to determine whether the Midland District Attorney’s office violated Mr. Young’s due process rights. Under Texas law, the prosecution’s use of false testimony may undermine a conviction regardless of whether the prosecution knew the testimony was false at the time. In this way, Texas arguably provides a greater degree of legal protection to criminal defendants than the federal Constitution, which many claim is only breached when a prosecutor knowingly introduces false testimony. The state’s approach is sensible because false evidence (often given by informants like Page)—like prosecutorial misconduct—clearly contributes to wrongful convictions. Mr. Young maintains that he is innocent of the murder.

Juan Castillo – Another Death Sentence Based on Unreliable Informant Testimony

Near the end of 2017, the CCA remanded the case of Juan Castillo, who was prosecuted in Bexar County. The grounds for this remand were very similar to the grounds in Mr. Young’s case; the defense had obtained evidence suggesting that an informant witness in Mr. Castillo’s case provided false testimony at trial. The CCA sent the case back for resolution of the question because, as mentioned above, Texas law protects defendants against false testimony regardless of whether the prosecution specifically knew it was false at the time of trial. In 2014, a federal court had rejected the same claim on the basis that the federal standard required proof that someone involved in the prosecution knew the evidence was potentially inaccurate.

The lower court has already resolved the case on remand. It denied the false evidence claim on the merits, holding that the informant’s affidavit—in which he admitted that he had lied at trial—was not credible. Earlier this month, the CCA affirmed this denial of relief. This most recent ruling may have removed the final obstacle to the State’s plan to execute Mr. Castillo.

Without assessing the specific denial in the Castillo case, the outcome is another reminder that the playing field is not level. Prosecutors are permitted to introduce inherently unreliable testimony to obtain convictions; then, when defendants call that evidence into question in post-conviction proceedings, they often must utilize similarly unreliable sources. Suddenly, courts become skeptical of the very kind of evidence that our system readily utilizes to put men on death row. Reliability somehow matters less on the front end, and becomes finality’s guardian on the back end.

Tilon Carter – Death Sentence Based on Unreliable Medical Examiner Testimony

The CCA also recently remanded another case from Tarrant County due to potential problems with false evidence. Tilon Carter has made several allegations about the state medical examiner’s trial testimony against him. After staying his execution to further consider the appropriate course, the CCA remanded so that the lower court can consider whether the examiner gave false testimony and also evaluate whether new scientific evidence that was not available at trial undermines the State’s evidence.

At issue is the State’s position that Mr. Carter smothered the victim, an 89-year-old man named James Tomlin, who died during the home robbery. The defense gathered and presented expert evidence that questions the medical examiner’s “smothering” claim, raising questions about the actual cause of death and heightening doubt that an intentional smothering took place. If the trial testimony was false or misleading, the Tarrant County District Attorney’s case against Mr. Carter looks much shakier because there may be little to no other evidence that establishes that the defendant had the intent to kill the victim. The prosecution may also be facing problems because the medical examiner, Dr. Nizam Peerwani, “later stated that Tomlin did not die of smothering and that the inner markings inside his lip could have been caused by something like a slap to the face.” These inconsistent statements may bolster Mr. Carter’s contentions about the cause of the victim’s death.

Kosoul Chanthakoummane – Junk Science Sends Man to Death Row

In June of 2017, the CCA also stayed the execution of Kosoul Chanthakoummane, a man convicted for the 2007 murder and robbery of a real estate agent named Sarah Anne Walker in Collin County. The defense argued that the conviction relied heavily on discredited forensic sciences and false or misleading testimony. According to media reports, the prosecution relied in part on bite mark evidence, which is notoriously unreliable and unscientific. Beyond that, the case involves other sketchy forensic evidence, including “hypnotically induced identifications, and erroneous DNA calculations.”

Mr. Chanthakoummane’s case, like Mr. Storey’s, is one in which the district attorney ignored the wishes of the victim’s parents to not seek the death penalty.

The Bottom Line

The CCA’s decision to delay executions in at least five cases in 2017 may not result in new trials or sentencing relief for any of the men whom have been spared for now. (Indeed, Mr. Castillo’s remand has already concluded, and his execution is scheduled for May 16.) But, the undeniable need for further proceedings in these cases reveals a troubling reality: at the root of many death penalty convictions, one will find little more than unreliable informant testimony or bunk forensic sciences. Prosecutors, eager to get results and put someone on the row for awful crimes, often act without giving appropriate consideration to the quality of the evidence and the defendant’s constitutional and legal protections.

Indeed, one recent high-profile case exemplifies the point. In February 2015, the CCA remanded the case of Linda Carty, also on death row, in light of allegations that the Harris County District Attorney’s office relied on false evidence and failed to disclose exculpatory evidence. Earlier this month, the CCA affirmed the lower court’s denial of relief in a fairly brief opinion that upheld the findings below. While the Texas courts have denied Ms. Carty’s claims, the evidentiary hearing uncovered remarkable prosecutorial misconduct and disdain for the rules. Consider what one of the concurring justices observed in his opinion this month:

The habeas court agreed that the State was operating under a misunderstanding of Brady at the time of the Carty trial. The habeas court found that, at the time of Carty’s trial, the prosecution did not believe that impeachment or exculpatory evidence needed to be disclosed if the prosecutor did not find the testimony credible. . . . Spence . . . mistakenly believed that she did not have to turn over evidence favorable to the defense if she did not find the evidence credible.

(Yes, this is an ethical bombshell. However, it is unclear whether any prosecutors really care.) The concurring opinion also noted that the DA failed to turn over several exculpatory statements before trial, and also failed to disclose that one witness had an incentive to testify favorably for the prosecution. Thus, even in cases in which courts uphold convictions and death sentences, we may very well locate proof that the criminal justice system is built upon the actions and deeds of State actors who care far too little about fairness, ethical behavior, and, wait for it . . . the Constitution. The five cases covered here are worth watching for that reason alone.

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