Andrew Cohen, The State of Texas: Third-World Justice, The Atlantic, February 25, 2010
It's been another extraordinarily bad stretch of days for those dwindling few lawyers, judges and politicians who stand ready still to publicly defend Texas's unjust, unkempt, and often unconscionable criminal justice system.
Things are so bad in the Lonsestar State, in fact, that the same officials who doggedly continue to believe "Texas Justice" is anything but an oxymoron-- those who would rather pester their colleagues in Congress for a change in the BCS college football rankings-- perhaps better start preparing for Congressional hearings or even a visit from investigators working for the International Committee of the Red Cross. Third-world justice in America, we all ought to agree, deserves a first-rate response.
First, there is the matter of Texas Court of Criminal Appeals Presiding Judge Sharon Keller. Known as "Killer Keller" to defense attorneys around the country, her cold-hearted abdication of her responsibilities as a jurist in the capital case of Michael Richard has earned her international scorn. She is the judge who left court early one day to meet her repairman knowing that a last-minute appeal was on its way on behalf of Richard. With the court improperly closed, the appeal (on a live issue involving lethal injections) was never heard and Richard was executed. Last week, special state prosecutors pushed again for sanctions or some other punishment for Keller after getting nowhere in an earlier proceeding before one of Keller's judicial colleagues and cronies.
Next, David Kaiser and Lovissa Stannow published last week in The New York Review of Books a heartbreaking and detailed essay about an epidemic of unpunished juvenile rape in the state's prison system, cases where routine and pervasive sexual assaults upon young men and women are made by guards and not other prisoners. The problem is tragic, systemic, and evidently incapable of being resolved quickly and fairly by local officials. Here is but an early excerpt from their long and vital work:
Since January 2000, it turned out, juvenile inmates had filed more than 750 complaints of sexual misconduct by staff. Even that number was generally thought to underrepresent the true extent of such abuse, because most children were too afraid to report it: TYC [Texas Youth Commission] staff commonly had their favorite inmates beat up those who complained. And even when they did file grievances, the kids knew it was unlikely to do them much good. Reports were frequently sabotaged, evidence routinely destroyed.
In the same six-year period, ninety-two TYC staff had been disciplined or fired for sexual contact with inmates, which can be a felony. (One wonders just how blatant they must have been.) But again, as children's advocate Isela Gutierrez put it, 'local prosecutors don't consider these kids to be their constituents.' Although five of the ninety-two were 'convicted of lesser charges related to sexual misconduct,' all received probation or had their cases deferred. Not one agency employee in those six years was sent to prison for sexually abusing a confined child.
No one who reads this essay can come away with anything but disgust for the neglect Texas state officials have offered their youngest prisoners. But why should managers at the lower levels of the Texas justice system respect and protect the rights of their inmates when they see the naked contempt and disregard offered to suspects, defendants and convicts by some of the highest judges of the state? Even the federal judges who preside over Texas justice have gotten themselves in trouble with our conservative United States Supreme Court for snubbing its mandates in capital cases. State judges? Forget about it.
Last Wednesday, for instance, attorneys for a capital convict named Hank Skinner were rebuffed, for the time being anyway, in their efforts to get their client DNA tested before he is executed. Skinner claims the DNA will exonerate him, as it has for hundreds of other convicts around the country. However, the prosecutor in the case is refusing to allow the quick procedure to take place and so far anyway the Texas courts have backed her up. Skinner's execution, scheduled for Wednesday, was pushed back one month, leaving uncertain the question of whether the testing will ever be done.
Then last Thursday, attorneys for Charles Dean Hood were forced to file a petition seeking the intervention of the United States Supreme Court to grant a new trial to a capital defendant whose judge and prosecutors had been secret lovers before his trial. Although a factual review of the circumstances confirmed the relationship, and the fact that neither the judge nor the prosecutor disclosed it to Hood or his attorneys, the state still refuses to order a new trial on the merits. Hood, however, did get some good news this week. On Tuesday, his sentencing hearing was deemed so patently unfair that even the Texas Court of Criminal Appeals overturned it and ordered a new proceeding.
Judges who leave court early for the day without protecting the last-ditch rights of condemned men. Judges who have secret affairs with prosecutors and then don't disclose them to the litigants before them. Prosecutors and judges who continue to fight against DNA testing even when it's the simplest route to the truth of a case. A prison system that tolerates and then covers-up widespread rape of young prisoners. Never mind all this earnest talk of seccession. In many ways, the Texas justice system, unrecognizable and unrepentant, already has left the Union.