Yesterday, journalist Radley Balko published an op-ed in the Washington Post about the Houston Law Review’s recent study of death penalty cases in Harris County, Texas, the county that has executed more people since 1976 than any other county in the United States. The study, which examined how trial courts in Texas handled post-conviction review of death penalty cases, produced many notable findings discussed below.
To preface the study’s results, Balko outlines the typical path of a post-conviction death penalty case:
Once in post-conviction, a defendant’s attorneys first file a petition with the trial judge laying out the new evidence. The trial judge then makes a determination of whether that new evidence merits a new trial. The trial judge’s findings are immensely important. They’re granted enormous deference by state appellate courts, and federal law requires federal appeals courts to grant enormous deference to the states.
Since the judge essentially determines the fate of the death row client, one would hope these cases are reviewed with the utmost meticulousness and fairness. According to Balko, however, the study found just the opposite:
In an “overwhelming number” of cases, the trial courts didn’t bother holding an evidentiary hearing to resolve any discrepancies in facts between the state and the defense. They found that the courts showed “extreme deference” to the prosecution, and often adopted the state’s position on every single claim, even when contradicted by the record. For example, the study found 191 cases in which a defendant’s post-conviction petition alleged clear disputes of fact with the state.
Alarmingly, the study found that judges in Harris County sided with the prosecution in 183 out of 191 sets of findings it examined. In other words, in 96 percent of cases, judges accepted the prosecutors’ findings.
Balko highlights other shocking findings from the study:
At least eight courts in Harris County have accepted the state’s version of every disputed fact verbatim in every death penalty case since 1995. Note that the point here isn’t that these courts sided with the state in every death penalty appeal. It’s that for every disputed fact of every death penalty case, they accepted the state’s version, word for word.
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.
The study concluded that of the 185 written opinions in which a judge in Harris County denied a petition for post-conviction relief, the judge had written their own opinion in only two cases, which amounts to two percent.
For Balko, these findings are not too surprising. Why? Because it’s Harris County, Texas. He explains:
The county was also featured in a recent report by the Fair Punishment Project for its high proportion of death-penalty cases with prosecutorial misconduct, its inadequate public defense in capital cases and the disproportionately high percentage of people of color sent to death row. It’s the county where a former district attorney — whose office sent 40 people to death row — had to resign after he was caught sending racist jokes over email. It’s the county where defense lawyers have notoriously fallen asleep during death-penalty trials. One single defense attorney has, by himself, handled 20 percent of the county’s death penalty cases since 2006. Since 1975, three people condemned to die in Harris County were later exonerated.
Balko concludes with a discussion of plagiarism: stealing someone else’s work and citing it as one’s own. In most intellectual circles, such as in journalism and in academia, plagiarism is discouraged. When drafting a judicial opinion, however, it doesn’t seem to matter—even when someone’s life or freedom is on the line. “That,” declares Balko, “says quite a bit about how seriously we take the death penalty in the United States.”