by Matt Clarke
A study by researchers from the University of Texas School of Law Capital Punishment Center published in the Houston Law Review found that in 96 percent of post-conviction proceedings in cases where the defendant received the death penalty, Harris County judges adopted the prosecutors’ proposed findings of fact verbatim. In the overwhelming majority of the cases, Harris County judges signed the prosecutors’ proposed documents without even removing the word “proposed” from the heading.
The study examined 21,275 individual findings of fact proposed by the prosecutors. It found that 96 percent of the time the judicial findings of fact were verbatim, word-for-word what the prosecutors had written.
Two related state post-convictions practices that “undermine the accuracy and fairness of the death penalty” were identified by the study’s authors: Jordan M. Steiker, Capital Punishment Center director; Judge Robert M. Parker, chair in law; clinical professor James W. Marcus, the center’s co-director; and clinical fellow Thea J. Posel. The practices identified are “the reluctance of the state trial courts to conduct evidentiary hearings to resolve contested factual issues, and the wholesale adoption of proposed state fact-findings instead of independent state court decision-making.”
According to the study, the “inadequate development of facts” due to the “one-sided consideration of contested factual issues prevents Harris County post-conviction courts from enforcing federal constitutional norms.” It also leads to unreliable federal post-conviction review of death sentences from Harris County since “even rubber-stamped findings receive deference in federal court.” After the federal habeas relief is denied, “prosecutors and newspapers recount the many layers of review undertaken without taking into consideration the fact that rubber-stamping the state habeas court’s factual findings meant that “those layers of review afford no meaningful consideration of the inmate’s constitutional claims.”
The issue is not unique to Harris County. Juan Castillo was executed by Texas on May 16, 2018, after a Bexar County judge denied his request for an evidentiary hearing on his claim that prosecutors used false testimony in obtaining his conviction. The only part of the order denying the hearing that was different from the prosecutor’s proposed order was the signature line. In February 2018, Alabama executed Doyle Hannn after a state judge adopted verbatim an 89-page order proposed by the state attorney general’s office without even bothering to delete “proposed” from the order’s title.
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