Friday, November 30, 2012

Anatomy of a Murder: Texas Penal Code Section 19.02

This is the second post in a series of unknown length in which I dissect a possible murder case in Texas. In the first post, cleverly entitled Prelude, I merely posited a hypothetical. If a person manufactured evidence or perjured himself in a case that led to the execution of an innocent man, would that person be guilty of murder?

In this post, I'll present the Texas law dealing with murder, and weigh that law against the hypothetical circumstances of the hypothetical case under discussion.

Murder, at least murder in Texas, is defined by Texas Penal Code Section 19.02.  Follow the link to view the entire section. I present what I believe to be the salient portion.

19.02 MURDER.
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual; 
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or 
(3) commits or attempts to commit a felony ... and in the course of and in furtherance of the commission or attempt ... he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
(c) ... an offense under this section is a felony of the first degree.

The portions I excluded define the terms "adequate cause" and "sudden passion", then use those terms to discriminate second degree murder from first degree murder. I think those portions are irrelevant to the discussion at hand. I believe that under Section 19.02 of the Texas Penal Code, we are discussing first degree murder if we are discussing murder at all.

As spelled out in Section 19.02, the definitions are all-encompassing. Surely there must be exceptions somewhere. Without exceptions, the executioner would be guilty of murder, as would be any police officer who killed someone in the line of duty, as would any private citizen who killed someone in self-defense. The exceptions, called justifications, are spelled out in a series of Sections which I list and link to below:

Section 9.02 -- Justification as a Defense
Section 9.21 -- Public Duty
Section 9.22 -- Necessity
Section 9.31 -- Self Defense
Section 9.32 -- Deadly Force in Defense of Person
Section 9.33 -- Defense of Third Person
Section 9.41 -- Protection of One's Property
Section 9.42 -- Deadly Force to Protect Property
Section 9.43 -- Protection of Third Person's Property
Section 9.51 -- Arrest and Search
Section 9.52 -- Prevention of Escape from Custody
Section 9.53 -- Maintaining Security in a Correctional Facility

With respect to our hypothetical, the only justification remotely applicable is Section 9.21, Public Duty. I'll paraphrase and summarize for those uninterested in following the link.
Section 9.21, Public Duty: Conduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgement or order of a competent court or other governmental tribunal, or in the execution of legal process.
Section 9.21 would cover the actions of the executioner, the judge, the DA, and the jurors even if the person executed turned out to be innocent. Each of the players just mentioned was performing a public duty required or authorized by law. The section would also cover police officers who testified truthfully during the innocent person's trial. The section would also cover forensic specialists who had not falsified or manufactured results.

I argue, however, that Section 9.21 would not cover anyone who perjured themselves or manufactured evidence. I'll go out on a limb here and guess that even the State of Texas will not argue that perjury or the manufacturing of evidence is required or authorized by law. The Public Duty justification is available only to those people "performing a public duty required or authorized by law." A person may be required to testify, but that person is not required or authorized to perjure himself. A person may be authorized to conduct forensic analysis, but that person is not required or authorized to intentionally fake results.

I therefore argue that for our hypothetical case, no justification exists for any person guilty of an act described by Texas Penal Code Subsections 19.02(b)(1), 19.02(b)(2), 19.02(b)(3). I agree with the State of Texas that anyone committing any such act in Texas, without legal justification, is guilty of first degree murder.

Stay tuned.

Wednesday, November 28, 2012

Anatomy of a Murder: Prelude

Assume for the moment a hypothetical.

A State executes a person convicted of a double murder. That person had been found guilty beyond a reasonable doubt by a properly constituted jury of his peers. The jurors, however, had been provided false evidence of guilt and had been deprived compelling evidence of innocence. Given that hypothetical, is somebody guilty of murder?

To put it another way, I guess, can the Texas justice system be used as a murder weapon?

I can cite at least one jurist who claimed that, indeed, such behavior would be murder. I speak of the Honorable Judge George H. Godwin. At the time he offered his opinion, he was presiding Judge of the 174th District Court of Texas. More specifically, he was the presiding Judge in a capital murder trial that hinged, at least in part, on blood evidence.

Judge Godwin was faced with a flurry of objections from defense counsel regarding last moment, surprise forensic evidence. Defense counsel objected to the lack of discovery regarding that evidence. Defense counsel argued that the State had not laid a proper predicate, that the evidence about to be presented might be inadmissible and the jury thereby contaminated.

It was at that point that Judge Godwin opined about the murderous implications of forensic evidence improperly presented. Let's turn to the transcripts:
The Court: Well, they better tie it up properly. If they don't, Mr. Hughes may not be the only one charged with murder.
I concede that's not much of a legal argument, particularly since the Honorable Judge George H. Godwin was a crappy judge. He had, after all, just allowed the now thoroughly disgraced James Bolding to test the alleged murder weapon while sitting in the jury box, right in front of the jury. The Honorable Judge Godwin had just denied a defense request for the time and expertise necessary to review the results of other forensic tests, tests actually conducted in a lab and just recently completed. Judge Godwin ruled instead that a brief phone call (relayed through the DA) was sufficient. In fact, Godwin ruled that the defense had already received more than they deserved, more than they could have dreamed of.
The Court: ... you've got something that many defense lawyers have always wanted; that is, you're seeing the actual testing right before your very eyes.
That was such a brilliant judicial ruling that the State parroted it during its closing argument.
Mr. Noll: They checked for blood not only on the clothing but on the knife right here in front of you. Normally the defense tactic would be they did something over there sneaky, but this time it was done in the witness stand where they could watch and they're still complaining about it.
If Mr. Noll, or Mr. Bolding, or the HPD did do something "sneaky", and that sneakiness resulted in an innocent person being executed, would that constitute murder?

What if the sneakiness consisted of testing a rusty knife for blood using a reagent that reacts with rust as readily as it reacts with blood?

What if the sneakiness consisted of withholding the results of multiple, blood-specific tests finding no blood on the defendant's clothing?

What if the sneakiness consisted of planting the victim's eyeglasses in the defendant's apartment?

What if the sneakiness consisted of extracting a confession under a false promise of leniency?

What if the sneakiness consisted of putting incriminating words in the mouth of a dead girl?

What if, in its well-intentioned efforts to frame the guilty, agents of the State framed the innocent? What if, as a result of those well-intentioned but clearly illegal acts, the State injected lethal chemicals into the innocent person's arm?

Would that be murder?

If so, what should be done?

In this series, we will discuss such weighty matters.

Stay tuned.

Wednesday, November 21, 2012

Hughes News: Final Letter

I received a letter from Preston Hughes III yesterday. I'll simply post it without comment, other than to  acknowledge the efforts of Ward, Barbara, and Al (and quite a few others) as Preston did in his final letter and in his final spoken words.

I may return to blogging this weekend.

Thursday, November 15, 2012

Hughes News: Executed

7:52 PM.

I will not be posting for at least a few days.

Hughes News: Execution Proceeding

It's 7:30 local. They've started the procedure. They never stop once they start. Texas is within minutes of executing an innocent man.

Hughes News: Execution Confusion

I don't have all the details. The execution procedure did not begin at 6:00 PM local as was scheduled. It is now 7:05 local and it seems as if the procedure has not yet started. Feedback from the scene is that the execution has been "gummed up" by all the motions that have been filed. Since all the state motions have been ruled on, that would leave the two civil suits that have not yet been ruled on.

The civil suits are against the City of Houston and the Texas Board of Paroles and Pardons. Each has a different basis, which I'll not detail here. Basically, however, the separate suits are separate claims at the federal district court level that the two government entities have violated and continue to violate Mr. Hughes' constitutional rights to due process and to be free from cruel and unusual punishment.

I do not know whether or not those suits must be ruled upon in some fashion before the execution proceeds, but something is gumming up the works. The law is that a person must be executed by midnight on the day of their execution. My understanding is that the prison refuses to begin an execution after 11 PM so that they can stay in compliance with their legal mandate. My understanding is also that the death warrant is good for one day only. While a new death warrant could be quickly issued, it must put the execution date at least 30 days out.

Take every single thing I say here with a grain of salt. I'm speaking from zero experience and with almost no insight into what is actually going on.

Stay tuned.

Hughes News: DNA Denied

The Chapter 64 motion for DNA testing has been denied. In Texas, a person facing execution is not allowed to have his DNA compared against the DNA claimed by Texas to be the killer's DNA.

Awaiting responses on two civil suits.

Been preparing an appeal to the CCA of the trial court's denial for DNA testing. It should be filed within the hour (3 PM local).

Wednesday, November 14, 2012

Hughes News: Your Turn to Help

I have done what is in my power to save Preston Hughes from a wrongful execution. My last act was to send a letter to Governor Perry, via his website, asking that he grant Preston Hughes a 30 day reprieve of execution to allow testing of critical DNA. Governor Perry has authority to do so.

There are many tragic aspects to this case. One of them is that the State of Texas claims to have the actual killer's DNA on a vaginal swab taken from Shandra Charles at the time of her autopsy. Somehow, in all this time, that DNA has never been compared to Mr. Hughes' DNA.

The details are explained in Mr. Hughes' Chapter 64 motion for DNA testing. That motion awaits a ruling from the trial court as the clock ticks down to Mr. Hughes' execution.

We have the means at our fingertips to insure that the person we are about to execute is indeed guilty of the crime for which is to die. Have we descended so far that we will not even compare the killer's DNA against prisoner's DNA?

For those who choose to help, I suggest that you phone the Governor's office or that you send him a letter via his web site. According to the Governor's web site, the phone number is (512) 463-2000. If you prefer to contact him via an online letter,
click "I am registering my opinion",
click "Select",
fill out the online form that will appear,
click "Send Message".
I will not post here what I wrote to Governor Perry. I assure you I was polite and respectful. I do not post here what I wrote because I want you to use your own words. It is important that you speak in your own words.

I ask that you not just contact Governor Perry yourself. I ask as well that you ask others to contact Governor Perry, and that they ask others, ad infinitum.

I thank you.

And now I wait.

Tuesday, November 13, 2012

Hughes News: Quick Update 2

This may be the last of the quick updates.

Yesterday, Preston Hughes filed a pro se Chapter 64 motion for DNA testing. A nearly final version of that motion, without exhibits, is here.

Preston Hughes also filed a motion for stay of execution while the Chapter 64 motion is being resolved.

Today, Preston Hughes filed two civil suits in federal court against separate government entities in Texas for their violation of his constitutional rights.  One of those suits, the one against the City of Houston is here.

Details to follow after I take some time off.

I won't close this post, however, without noting my admiration of Ward Larkin for all that he has done to right this and other wrongs.

Friday, November 9, 2012

Hughes News: Bad News / Quick Update

The CCA took a week to consider Mr. McCann's application for Writ of Habeas Corpus. The CCA received Mr. Hughes' pro se application yesterday in the mail and rejected without considering it before the close of work. As I noted previously, the previous application placed another, nearly insurmountable hurdle in front of Mr. Hughes.

I have no time to detail all this or to whine of it. There is much to do. I won't specify in public any longer on what we intend to do, since that seems to have worked to Preston's disadvantage. I'll say only this. We have four options we are considering, two that we are considering seriously, and one that I stopped working on just now to post this update.

Stay tuned.

Thursday, November 8, 2012

The Content of Our Character

With one week left before our scheduled execution of Preston Hughes, an innocent man, I choose to use the words of Martin Luther King for the title of this post. If you have not listened to or at least read Mr. King's I Have a Dream speech in its entirety, it is your loss. From that speech, I selected my title from this sentence.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.
I fear for the content of our nation's character.

As I was working on Mr. Hughes' petition for Writ of Habeas Corpus, I incidentally became aware of this seemingly unrelated graphic.

It summarizes our drone raids against just one country, Pakistan, a purported ally. The size of the circles indicates the estimated number of militants we killed. The ring surrounding the circle represents the number of non-militants we killed. Another word for non-militants is innocent civilians. The ring surrounding the circle represents the number of innocent people we killed.

The red circles represent the strikes that took place under the leadership of President George W. Bush. We elected him in 2000 and reelected him in 2004. The blue circles represent the strikes that took place under the leadership of President Barack Obama. We elected him in 2008 and reelected him just this week. Not only does President Obama hold the distinction of being granted the Nobel Peace Prize, he holds the distinction that his blue circles are larger and more numerous than are President Bush's red circles. President Obama holds the distinction as well that the pale rings surrounding his circles are more numerous and even wider than the pale rings surrounding his predecessor's circles.

I saw the figure, I studied it, and I went back to work on Mr. Hughes' petition.

Some days later, I can't be more specific for I've lost my sense of time, I turned on Turner Classic Movies to play in the background. Judgement at Nuremberg was playing. I had seen it before, several times, but it somehow demanded my attention.

It was more poignant than before. Suddenly I was watching it just as I was accusing our government of manufacturing evidence, of perjury, of coercion, of sentencing an innocent man to death. With only ten days or so before we execute another innocent man, I heard Spencer Tracy utter his verdict regarding four judges charged at Nuremberg.
"[T]he charge is that of conscious participation in a nationwide, government organized system of cruelty and injustice, in violation of every moral and legal principle known to all civilized nations. ... The real complaining party at the bar in this courtroom is civilization. ... Men who sat in black robes in judgment on other men. ... The principle of criminal law in every civilized society has this in common: any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime, is guilty. 
... [T]his trial has shown that under a national crisis, ordinary, even able and extraordinary men, can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. No one who has sat through the trial can ever forget them. ... 
There are those in our own country too who today speak of the 'protection of country,' of 'survival'. A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient, to look the other way. Well, the answer to that is 'survival as what'? A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult. Before the people of the world, let it now be noted that here, ... this is what we stand for: Justice, truth, and the value of a single human being.
The movie ended soon thereafter with American Judge Spencer Tracy speaking behind bars with one of the men he had just sentenced to life, German Judge Burt Lancaster.
Burt Lancaster: "Judge Haywood ... the reason I asked you to come: Those people, those millions of people ... I never knew it would come to that. You must believe it. You must believe it." 
Spencer Tracy: "Herr Janning, it came to that the first time you sentenced a man to death you knew to be innocent."
I went back to work.

And then Benghazi. Through gross incompetence, we put our foreign mission in harm's way; we failed to provide the security it needed, requested and deserved; we then did nothing to save them during a seven hour battle that claimed the lives of four of them. We then lied to ourselves about what happened.

Angry, I went back to work.

And then the Texas Tribune / New York Times article came out. In that article, Mr. Hughes' own attorney, Mr. Patrick F. McCann, planted suspicion in our nation's consciousness about some deep, dark secret Mr. McCann holds of his own client's guilt. He speaks of ethics as he does this, as he violates his client's privilege of confidentiality.

I went back to work.

And then I learned that Mr. Hughes' case has for five years been on a list of cases that should be reviewed from beginning to end.

In 2002, the city of Houston was shaken by a series of devastating disclosures focusing on its police crime lab. From the executive summary:
The people of Houston and many of the city’s public officials quite appropriately questioned how many wrongful convictions may have been obtained based on flawed forensic evidence and its presentation to Harris County juries.
The city of Houston and the HPD therefore commissioned an independent investigation to answer the profound questions about the depth and breadth of the problems infecting the lab. James Bolding would turn out to be the central figure in the scandal. It was the same James Bolding that fabricated evidence of Mr. Hughes guilt and withheld actual evidence of his innocence.

The results of the investigation cast serious doubt on the quality of the convictions in which the HPD crime lab serology section had been involved. In 21% of the 850 cases where the defendant was still incarcerated, the investigators "found major issues calling into question the reliability of the serology work performed by the Crime Lab or the accuracy of the results it reported". In 41% of the 29 cases in which the defendant had already been executed, the investigators found similar "major issues".

The commission made five recommendations to the city and the police department that had requested the report, as well as to Harris County and the District Attorney's Office. In short, the recommendations were to re-investigate each and every case identified in the report as having major issues with the HPD crime lab, to appoint a special master for each case, to conduct all possible DNA testing at their expense.

Mr. Hughes' case was on the list of those having "major issues" due to the sloppy and fraudulent work of the HPD crime lab. Everyone knew or should have known that Mr. Hughes' conviction and his sentence were based on the work of a crime lab and a specific individual known to be untrustworthy, known to have engaged in fraud. Yet no one did anything rather than pursue his execution.

My anger grew, and I went back to work.

And then Mr. Hughes' attorney, Mr. Patrick F. McCann, filed yet another application for Writ of Habeas Corpus, against the express wishes of his client, and by so doing prejudiced his own client in ways too complicated to discuss here. In that poorly written, incomplete, and insufficiently substantiated application, Mr. McCann never once claimed his client was innocent. For 25 years, Mr. Hughes had been trying to get his claim of innocence before the Court, and Mr. McCann had deprived him of his last opportunity.

Rather than present evidence of his client's innocence, Mr. McCann planted seeds of suspicion in the minds of the very justices who would rule on Mr. Hughes' last chance to live. Mr. McCann adopted the claim, developed in this blog, that Shandra Charles' must have been dead when Sgt. Hamilton claimed she provided him a dying declaration. Mr. McCann then undermined that claim with a completely unnecessary, completely unsubstantiated suggestion that the police fabricated the dying declaration to protect someone who had actually witnessed the crime.

Not surprisingly, Mr. McCann's application was quickly rejected by the Court as an "abuse of the writ without considering the merits of the claims." Mr. McCann had placed yet another nearly insurmountable hurdle before his client.

I seethed, and I went back to work.

Regarding the content of our nation's character, my faith has been restored somewhat. I have met and worked with some amazing people, and two of them in particular have helped give Mr. Hughes his chance to proclaim his innocence before the highest court in Texas.

Yesterday, in a series of last minute twists and turns worthy of a John Grisham novel, Mr. Hughes finally filed his application for Writ of Habeas Corpus with 174th Judicial District Court of Harris County and Court of Criminal Appeals in Texas. He finally, after 25 years, has the opportunity to tell the Court that he is innocent, that he should therefore not be executed, that he should therefore be released or granted a new trial.

Stay tuned.

Thursday, November 1, 2012

Hughes News: Framing the Guilty?

Framing the Guilty is a term I first heard associated with the OJ Simpson case. It is the classic case of Framing the Guilty. I have no doubt whatsoever of Simpson's guilt and I wouldn't soil these pages arguing otherwise. However ...

.... ta dum dum ...

I find it exceptionally suspicious that the glove didn't fit. I believe, but cannot prove, that the glove was indeed planted. I believe that the OJ case is the preeminent example of Framing the Guilty.

When familiarizing others with this case, I find myself asking if they have ever heard of the concept Framing the Guilty. Some have and some haven't. Either way, with that concept now part of the discussion, it is easier for people to understand why the police (and others) acted the way they did in the case of Preston Hughes III. They were satisfied he was guilty, so they framed him.

To be absolutely clear, I am not attempting to save Preston Hughes because I believe he is guilty but was framed. To be absolutely clear, I believe that Preston Hughes is actually innocent of the crime, that he had no involvement in or knowledge of the crime. I'm not claiming that his case is a case of Framing the Guilty. I'm claiming that his case is one of Framing the Presumed Guilty but Actually Innocent.

Jordan Smith of the Austin Chronicle has adopted the phrase Framing the Guilty for the title of her just published article. She quite properly, in my opinion, added a question mark.

In her lengthy article (4,323 words by my count), she spends most of the time with the details of the case. She has clearly researched them well. Near the end, she discusses the conflict with the Patrick McCann, Preston's purported attorney.

There has been much going on of which I haven't written. It is not my desire to withhold information from the public. Instead, the demands on my time to stop the execution of an innocent person are so persistent and insistent that I have insufficient time to write to you as frequently as I should.

Ward Larkin and I are still investigating the case as we attempt to complete the petition. New discoveries occur frequently, and each demands more editing and more new content in the petition.  We hope to file soon.

As part of our ongoing investigation we have recently learned that a DNA test conducted early this century detected one spot of Shandra Charles' blood on Preston's blue jeans. I suspect that is the deep dark secret to which McCann alludes each time he violates attorney client privilege (at least twice now) by publicly claiming he has some deep, dark, compelling evidence of his own client's guilt. The most recent violation is included in Jordan Smith's article. "Ethically, I am prohibited from advancing before the court a theory that I know to be false."

McCann has it 100% backwards. He is ethically bound not to prejudice his client such as he does with his public pronouncements. On the other hand, he is ethically bound to defend his client as aggressively as possible and permissible. No rule prevents him from presenting compelling evidence of his client's innocence. No rule prevents him from submitting a habeas petition arguing that under the Supreme Court ruling in Schlup v. Delo his client wants to present a compelling case of actual innocence. He may not lie about the compelling evidence, but he is ethically bound to present it.

Furthermore, I argue that McCann is ethically bound to present the evidence of innocence in a Schlup-type claim. Failure to do so will result in his client being executed when his client could have otherwise been saved. In the absence of a Schlup claim, he is not permitted to raise the serious constitutional issues that helped convict his client, such as the withholding of evidence, the manufacture of evidence, the admission of perjured testimony, and ineffective counsel.

Patrick McCann has, however, complicated the situation enormously. He filed another habeas despite Preston's clear and unambiguous desire that McCann not do so. Worse yet, McCann did not base the petition on Schlup.

For legal reasons I won't detail here, the petition will almost certainly fail as it stands. There is much more to be written on this issue, but I have not the time. For now, I'll simply place McCann's petition to SkepticalJurorDocs and allow you to read it for yourself. (The lastest version of Preston's desired petition will be available early tomorrow morning.) With respect to McCann's petition, I'll make only one compound comment. Mr. McCann knew or should have known that this petition is legally weak, insufficiently unsubstantiated, and almost certainly bound to fail.

Before closing, I'll add just a few comments regarding the spot of Shandra's blood found on Preston's blue jeans.
  1. Those blue jeans had no blood apparent on them.
  2. Those blue jeans had been previously sprayed with luminol (or equivalent) as a screening test to highlight all areas having possible blood.
  3. Those areas were cut out from the blue jeans.
  4. Those areas were subjected to two separate confirmatory tests for blood. No blood was detected in either case. This information was withheld from the jury.
  5. More than a decade later, a DNA lab conducted another screening test for blood, this time on only the remainder of the jeans where the previous screening test had failed to detect blood.
  6. The screening test by the DNA lab, however, revealed a single new spot of blood, one that was invisible to the naked eye, one that had somehow been missed by the previous screening test.
  7. The DNA testing of that spot revealed Shandra's DNA but not Marcell's.
In addition, consider this. It is approaching certainty that the police perjured themselves (about the dying declaration, the first search of Preston's apartment, the conditions of Preston's confession) and fabricated evidence (the eyeglasses in Preston's couch and the blood on Preston's knife). It is clear that the blue jeans were removed from the proper chain of control and custody at least once. It is now clear as well that Shandra Charles shorts were not stored in a plastic bag. (Ward Larkin took photos of them just days ago, at the courthouse. Much more about those later.)

It is under those conditions that an invisible drop of blood was discovered on Preston's blue jeans, when it is clear that his jeans, and shirt, and shoes, and knife, and its sheath, and his person should have been covered in blood.

This case has long been a travesty, and now Preston's own attorney (purported attorney) is making it worse, all the while claiming some non-existent moral high ground.

Stay tuned.