Opinion: A Texas death penalty case illustrates the absurdity of the worst crime bill to emerge from the 1990s
The Supreme Court in Washington. By Radley Balko Radley Balko Opinion writer focusing on civil liberties, the drug war and the criminal-justice system Email Bio Follow Opinion writer May 20 at 4:12 PM On Monday, the Supreme Court refused to take up a case in which a Texas judge ruled for the prosecution in a death penalty case by simply signing the prosecution’s brief with her own name. That isn’t even all that uncommon. In some parts of the country, it’s routine.
Whether you find these arguments convincing — and whether you agree that Freeney’s trial attorneys provided adequate mitigation — is somewhat beside the point. At this stage, Freeney’s case is about the 14th Amendment.
So in 96 percent of these cases, the judge sided with the state on every single case. And if you tally up all the disputed facts in all 191 cases — the courts sided with prosecutors on 95 percent of them . . . Here’s the most jaw-dropping part: In 167 of the 191 cases, “the judges simply signed the state’s proposed document without changing the heading.” Which is to say, the judges essentially let the prosecutors write their opinion for them.
I would guess that this is contrary to how most people think the criminal justice system works. It certainly doesn’t seem “adversarial.” Yet the federal courts don’t seem particularly alarmed: To date, this practice has yet to be struck down. But as I’ll discuss in a moment, what happened in Freeney’s case is even worse.The second component to Freeney’s case is a law called the Anti-terrorism and Effective Death Penalty Act, or AEDPA.
Critics warned that AEDPA would severely curtail federal review of state courts, and was a broadside on the 14th Amendment. But leaders from both major political parties insisted that the habeas provisions struck the right balance between prohibiting incarcerated people from bogging down the federal courts with frivolous claims, and allowing the federal courts to review state courts for constitutional slights.
Perhaps the most famous example of AEDPA’s stingy dispensation of justice is Brendan Dassey, made famous by the Netflix documentary “Making a Murderer.” We now know that detectives who questioned Dassey were coercive, used manipulative tactics and actually introduced the details about the murder that Dassey later relayed back to them. We also know that Dassey fit the profile of a prototypical false confessor.
It isn’t as if there isn’t good reason to be suspicious of how justice is meted out in Houston. In addition to being one of the “killingest” counties in the United States, Harris County also has a long history of prosecutor misconduct. In the 1980s and 1990s it was a poster case for inadequate defense in death penalty cases. Three people that the county sent to death row have been exonerated, including Alfred Dewayne Brown earlier this year.
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