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A death penalty case shows the absurdity of the worst crime bill from the ’90s

“The case of Ray Freeney isn’t about innocence, but it does demonstrate just how easy it is for a clear injustice to slip through the appeals process with little consideration”. From time to time, Reddenlawtexas.com will share articles related to our communities, especially in the legal space. Today we are sharing an article from the Washington Post, written recently, by Radley Balko, on May 20, 2019.


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. But in this case, the judge did so without even bothering to read the legal arguments and new evidence offered by the defense. She couldn’t have, because she didn’t bother waiting for the defense to file them. And yet according to the Texas appeals courts, a federal judge and a federal appeals court, the judge’s actions aren’t reviewable.

The case of Ray Freeney isn’t about innocence, but it does demonstrate just how easy it is for a clear injustice to slip through the appeals process with little consideration. The core issue in the case concerns a profound question that dates back to the American founding: How much should the federal government defer to the states when it comes to safeguarding constitutional rights? And when the states fail at this most basic obligation, at what point should the federal government intervene?

Freeney was convicted and sentenced to death in 2003 for the rape and murder of two prostitutes in Houston. His current defense team isn’t fighting the guilty verdict, but they are asking that Freeney get a new sentencing hearing because of ineffective representation by his attorneys during the penalty phase of his trial. The Supreme Court has ruled that as part of an adequate defense in a death penalty case, defense attorneys must put on “mitigation” evidence that might dissuade a jury from imposing a death sentence. This could be evidence of childhood abuse or mental illness, that the accused has been a model prisoner, that he is a good father, son, or brother, and so on.

Freeney’s appellate attorneys argue that his trial attorneys failed to put on proper mitigation. They claim that the trial attorneys failed to demonstrate that his diagnosed schizophrenia was related to his offense — indeed, when the state suggested it wasn’t, they failed to object. They say the trial attorneys also failed to uncover abuse Freeney endured as a child that made the schizophrenia worse. They have even interviewed jurors who told them that had Freeney’s attorneys made these arguments and put on such evidence, they would have reconsidered their decision to impose the death penalty.

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. His claim sits at the crossroads of an outlandish practice that’s almost routine among Houston judges (and also common in other parts of the country) and a byzantine federal law passed during the Clinton era that has shredded one of the most important and first-to-be-recognized of human rights: the right to habeas corpus, or to be heard in court.

Outsourcing judicial opinions

The grievous practice at the heart of Freeney’s case is one I’ve written about here before: For years, judges in Harris County, Tex., have essentially outsourced their judicial opinions to the county’s prosecutors. Here’s a post from last year, drawing on a report in the Houston Law Review that laid out the extent of the problem:

The study found that in an “overwhelming number” of [death penalty] 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.

In these cases, Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law, and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95 percent. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96 percent.

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 . . .

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.

One might argue that these are death penalty cases, and the person convicted is probably guilty. So the figures above needn’t be scandalous — they could merely be the result of a judge carefully considering both sides coming down overwhelmingly in favor of the prosecution because the prosecution is overwhelmingly correct. But there’s a problem here, too:

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 found judicial “opinions” that not only duplicated the state’s brief word-for-word, but included the same headings and even the same typos and misspellings.

Some of the state’s briefs could run hundreds of pages, yet the report chronicled several examples in which Harris County judges adopted the state’s brief as their official ruling on the same day it was filed. One judge even managed to adopt the state’s brief before it was officially filed.

This practice isn’t limited to Houston. It happens in other parts of Texas, too. It also appears to be common in Alabama, including in death penalty cases. When I wrote about the practice in Harris County last year, I received feedback from attorneys in other states who said they’ve seen it as well.

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.

AEDPA was passed in 1996. It was touted as an anti-terrorism bill, largely in response to the Oklahoma City bombing. But like many ambitious laws passed in the wake of a tragedy, Congress tacked on other provisions that had little to do with the event that precipitated the legislation. One of those provisions was a series of limitations on federal habeas corpus, or the power of federal courts to review and overturn state courts on constitutional claims.

The rules laid out by AEDPA are incredibly complicated, but for the purposes of this post, the relevant provision states that to get a federal court to review a state court’s ruling, a defendant must show not only that the state court (and the state courts that upheld the ruling) were wrong, but that the prevailing ruling was either “contrary to, or involved an unreasonable application of, clearly established Federal law,” or an “unreasonable determination of the facts in light of the evidence presented.” Put plainly, you must convince the federal courts not only that the state courts were wrong, but also that they were unreasonably wrong.

AEDPA sailed through Congress at a time when Republicans and Democrats were competing to see who could look tougher on crime, when Republicans were pushing an agenda to roll as much policymaking back to the states as possible, and just before a wave of DNA exonerations began to show that our criminal justice system wasn’t nearly as foolproof as we would like to think. In states where trial and appellate court judges are elected, candidates for the bench frequently ran not on judicial temperament or promises to dispense equitable justice, but by promising to crack down on criminals. They disparaged incumbents who had dared to rule for the rights of the accused, and ran ads that made the Willie Horton campaign look like a cry for social justice. These candidates won big, and they became many of the state judges and justices to whom AEDPA would compel acquiescence. Just as the Bill of Rights was most in need of federal protection from carceral state courts and rampaging state legislatures, the two major parties teamed up on a bill that would kneecap their ability provide it.

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.

The critics were right. The habeas provisions in AEDPA have been a disaster.I’ve discussed here a number of times how AEDPA has made it nearly impossible for people convicted because of dubious forensics to get their cases into federal court.

And since AEDPA became law, the Supreme Court has interpreted in ways that further bar the doors to federal courthouses. For example, the court has interpreted the “unreasonable” standard in AEDPA to mean that federal courts can only intervene when there is “no possibility” that any “fairminded jurist” would disagree with the state court’s ruling. It doesn’t matter if the state court was wrong. It doesn’t matter if every judge on a federal appeals court believes that a state court ruling violated the defendant’s constitutional rights. That isn’t enough.

As critics such as the late 9th Circuit judge Stephen Reinhardt have pointed out, for a federal court to hear a petition from a state court ruling, the federal court must essentially declare that the state trial court judge, the state appeals court that upheld that judge’s ruling, and the state supreme court that either upheld that ruling or declined to review it aren’t just wrong, but unfit to wield a gavel. That’s an almost impossible standard. And even when a state court fails to explain why it denied a defendant’s claims, if the federal courts can possibly imagine an explanation for the ruling that some not completely incompetent judge somewhere might find convincing — even if neither the federal judge nor the state judges themselves buy into that explanation — that’s what federal courts are to assume, and the defendant is to be denied review.

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. But to get into federal court, Dassey had to show that the state judges who upheld his confession weren’t just wrong, but that they were nearly derelict at their jobs. Not surprisingly, he failed.

Back to Freeney: Normally when a state court litigates a post-conviction claim such as Freeney’s, each side will present proposed factual and legal findings, and the judge will attempt to resolve the points in dispute. When Freeney’s attorneys asked for a new sentencing trial based on ineffective assistance of counsel, a trial-level judge asked for briefs, and the state responded with 204 proposed findings of fact, based on more than 800 pages of testimony. Just as lots of Harris County judges had done before her, Texas District Court Judge Renee Magee put her name on the state’s brief and adopted it verbatim as her ruling — in this case, the day after prosecutors filed it.

But in an added twist, Magee adopted the state’s brief verbatim before Freeney’s attorneys had an opportunity to respond. The lawyers hadn’t missed any deadline. They were still within the window of time they had to file. Magee — who, before becoming a judge in 2012 worked for 19 years in the same DA’s office that filed the brief — simply didn’t wait to read it. If she had, she would have found that Freeney’s attorneys not only presented legal arguments, they also presented new evidence supporting their contention that his trial attorneys failed to adequately represent him. Because Magee ruled so quickly, she never even considered the new evidence, nor would the state and federal courts who reviewed and upheld her decision.

It’s worth remembering here that the guiding philosophy behind AEDPA and the Supreme Court’s interpretation of it is that we should defer to and trust in the states to adjudicate constitutional rights. And in our system, both state and federal appeals courts generally defer to trial courts when it comes to interpreting the facts of a case. At each point of review, courts are to err on the side of assuming that the lower court got it right. Presumably built into that requirement is an expectation that trial court judges exercise the sort of care and attention that such profound matters demand, particularly in death penalty cases. When you have such egregious inattention to facts and lack of stewardship of constitutional rights as we’ve seen in Harris County, the entire system begins to look like a farce.

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. The county has also had chronic problems with its crime labs, including analysts accused of tweaking test results to benefit the DA’s office.

Yet the state of Texas argues that even given all of this, under the Supreme Court’s AEDPA rulings the federal courts are still obligated to defer to the state. So long as the state courts’ ruling is remotely plausible — so long as it can be justified with an explanation that at least one “fairminded” judge somewhere would find reasonable — then the federal courts must accept it. Even if the court couldn’t wait to hear from the defense. Even if the court’s ruling failed to include a single sentence that wasn’t written by a prosecutor.

Freeney’s lawyers countered that under its previous AEDPA rulings, the Supreme Court required that the state courts adjudicate a defendant’s claims “on the merits.” They argue that because Magee’s ruling was based on more than 200 findings of fact, 800 pages of testimony, and other evidence and exhibits; because she apparently reviewed all of that in a single day; and because she never even considered the defense’s legal arguments or new evidence, that because of all of that, her ruling couldn’t possibly have been an adjudication “on the merits.”

That seems like a persuasive argument. And yet Freeney lost, first in federal district court, then at the U.S. Court of Appeals for the 5th Circuit. In 2016, federal District Court Judge Melinda Harmon ruled that under Supreme Court precedent, AEDPA “contains no requirement that the state adjudication proceed under any certain set of circumstances,” and that under the controlling case law for the Fifth Circuit, “a full and fair hearing is not a precondition to presumption of correctness to state habeas court findings of fact.” That last line is hard to fathom. The federal courts are to presume the state trial court was correct, even if all parties concede it didn’t hold a fair hearing.

Freeney’s attorneys note that the U.S. Court of Appeals for the 4th Circuit appears to have come to the opposite conclusion — that a state court has failed to adjudicate on the merits “when the state court makes its decision ‘on a materially incomplete record.’ ” If they’re right, there’s a split between federal circuits on the matter, which would seem to have made it an issue ripe for the Supreme Court to consider. If you had to invent a case with facts to test the absurd, outer limits of AEDPA’s deference to state courts, you’d be hard pressed to do better than Freeney. You needn’t sympathize with him or agree with his attorneys on the facts to understand the upside-downness of it all. If this case doesn’t call out for federal review, it’s difficult to imagine what would.

And yet the Supreme Court turned the case down. “The message sent to state judges by the Fifth Circuit in Mr. Freeney’s case was clear,” says Richard Bourke, one of Freeney’s attorneys. “You don’t need to consider the defense’s legal arguments. You don’t need to consider the defense’s evidence. You don’t even need to wait until the defense has presented either. You can just rubber stamp the state’s brief. And you needn’t worry about the Fifth Circuit overruling you.”

Despite the Supreme Court’s disinterest, there is a way to fix all of this. Just as these limits on federal habeas corpus were wrought by a piece of legislation, a piece of legislation could also restore the “great writ” relatively easily. Nearly all of the Democrats running for the party’s 2020 presidential nomination have claimed to be champions of criminal justice reform. AEDPA isn’t as sound-bite friendly an issue as legalizing marijuana or ending mass incarceration. It’s a massively wonky, incredibly complex law that all but a handful of attorneys fully understand. But it is badly in need of reform. With one well-crafted piece of legislation, a willing Congress and a supportive president could unravel two decades worth of bad outcomes and bad case law.