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The Empty Promise of Appointed Clemency Counsel in Texas

Brian Stull,
Senior Staff Attorney ,
ACLU Capital Punishment Project
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May 7, 2009

Despite a recent Untied States Supreme Court decision protecting the rights of indigent death-row inmates seeking executive clemency, Texas has continued to execute people without pausing to give effect to the high court’s ruling. As a result, Texas has executed two men — Michael Rosales and Derrick Johnson — who had made strong factual showings of mental retardation but were either not afforded a lawyer or were not allowed a full hearing on their claims.

On April 1, 2009, April Fool’s Day, the United States Supreme Court issued its opinion in Harbison v. Bell (PDF), deciding that federal law entitles indigent state death-row prisoners access to clemency counsel — a lawyer appointed by a federal district court to represent prisoners during executive clemency proceedings. The Supreme Court observed that clemency is the last “fail safe” where the judicial process has failed to prevent a “miscarriage of justice.” The “fail safe” of clemency in Texas is of critical importance given that the appeals of death-row inmates too often are dismissed based on procedural problems — a defense lawyer filing an appeal late, for example — that are outside prisoners’ control.

Harbison overruled various lower federal court decisions, including a 2002 decision that denied the right to appointed clemency counsel to Texas death-row inmates. Since 2002, Texas has executed 180 people denied the right the right to counsel the Harbison decision found was mandated by federal law. What’s worse, Rosales and Johnson were executed after the Harbison decision, but without being afforded the protections the decision requires.

On April 15, 2009, two weeks after the Harbison decision, Texas executed Rosales. His application for an appointed clemency counsel was denied in the federal courts because Texas law requires clemency petitions to be filed at least 21 days before the date of execution. Even though the Harbison decision was delivered less than a week after the clemency petition deadline had passed, the federal courts asserted that he had no “available” clemency proceeding. Completing the Catch-22, Texas would not postpone Mr. Rosales’s execution date.

Had Rosales been appointed clemency counsel and reasonable time to file a petition, he would have had a substantial clemency claim to bring before the Texas Board of Pardons and Parole, given that he was very likely mentally retarded, and the U.S. Supreme Court found execution of the mentally ill unconstitutional in Atkins v. Virginia. Had Rosales been granted a clemency hearing, the Texas Board of Pardons and Parole and the governor could have considered evidence of mental retardation developed by clemency counsel as a basis for sparing Mr. Rosales’s life.

So despite the Supreme Court’s ruling in Harbison, the “fail safe” of clemency utterly failed Rosales: he was executed without clemency counsel having been appointed to him, and without a clemency petition ever having been filed on his behalf.

The “fail safe” also failed 15 days later, when Texas executed Johnson. His clemency attorney was appointed on April 7, 2009, and he immediately retained a psychologist to evaluate Mr. Johnson. In the meantime, Johnson’s lawyer embarked on the highly fact-intensive investigation needed to ascertain whether Mr. Johnson was mentally retarded before the age of 18 and exhibited deficits in adaptive behavior, as required under the legal definition of mental retardation. The psychologist issued his report on April 27, 2009, finding that Mr. Johnson tested in the mentally retarded range. On April 28, 2009, his attorney submitted the psychologist’s findings to the Texas Board of Pardons and Parole, but his extremely time-consuming investigation of Mr. Johnson’s life before the age of 18 was far from complete. One and one-half hours later, the Board of Pardons and Parole denied Mr. Johnson relief. Mr. Johnson’s pleas in the courts for a stay of execution — so that his clemency counsel could complete his work — were denied.

Texas legislators objected to the rush to execute Mr. Johnson. So too did the ACLU of Texas. To no avail. Texas executed Mr. Johnson at 6:23 pm on April 30, 2009.

On May 19, 2009, Texas is scheduled to execute Michael Riley. His newly-appointed clemency counsel has asked Governor Rick Perry for a 120-day reprieve so that counsel has time to prepare a thorough clemency petition. Harbison will prove to be an awful April Fool’s Day prank on Texas death row inmates if the “fail safe” of clemency keeps failing.

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