'Agree with me or I will kill you': On plea bargaining, the death penalty, and life without parole

Me, Harris County DA Kim Ogg, and Shannon Edmonds from the Texas District and County Attorneys Association commented in a Houston Chronicle story this week on the role of life-without-parole sentences in plea bargaining in capital cases. I'd suggested:

"There has always been speculation about whether that has encouraged prosecutors to file capital cases more than they otherwise would because what better leverage do you have in a plea bargaining situation than, 'Agree with me or I will kill you,'" said Scott Henson policy director with the non-profit Just Liberty, which advocates for reducing incarceration. "The government will literally kill you if you don't go for life without parole and there is no stronger bargaining chip than that."

However,

District Attorney Kim Ogg, whose office has overseen less than 25 life without parole sentences since she took the reins last year, pushed back against that suggestion. 

"We don't use the death penalty as a plea bargaining tool," she said.

Hmmmm ... What is plea bargaining, Grits wonders, if not a negotiation over sentences? More lenient sentences are offered as an incentive for the defendant to admit guilt and avoid a trial. Since the only two sentences available for capital crimes in Texas are death and LWOP, one wonders what else there is to bargain over if the death penalty isn't used "as a plea bargaining tool"?

Taking the claim on its face, perhaps this might explain the large number of cases charged as capital which don't result in capital sentences: when prosecutors take death off the table in a capital case, LWOP becomes the top sentence in a plea negotiation. So offering non-capital murder or some other charge with the possibility of parole would become the only negotiating chip to incentivize plea deals. Sufficient, county-level charging data doesn't exist, to my knowledge, to confirm that hypothesis, but I'm not sure why anyone would plea bargain to LWOP if the death penalty weren't being threatened.

If the Harris DA under Kim Ogg doesn't use the death penalty to get LWOP plea bargains, I'm glad to hear it. Shannon Edmonds from TDCAA, however, considered it par for the course "that prosecutors used the death penalty to get a guilty plea."

Shannon Edmonds, staff attorney and director of governmental relations for the Texas District and County Attorneys Association, said his group doesn't have an official position on the matter. 

"It kind of tickles me that defense lawyers are upset that prosecutors aren't trying to kill their clients," he said. "Even if the punishment was a minimum of 40 years on a capital life sentence, they still complained that prosecutors used the death penalty to get a guilty plea. That's not anything unique to life without parole."

So, there's that.

Finally, Houston attorney Pat McCann raised an issue that's been discussed recently on this blog and on the podcast - non-capital cases don't receive legal representation at the habeas-corpus stage, nor automatic review by the Texas Court of Criminal Appeals or the federal courts:

Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. 

"Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."

Much has been written about the financial costs of the death penalty, but McCann's observation raises another important and less-often-discussed point: The reason the death penalty tends to drive criminal-justice debates isn't just the symbolic importance of imposing the maximum punishment. It's that defendants sentenced to the death penalty have attorneys representing them throughout the process, and so weak or unconstitutional prosecutions are more likely to be exposed.

Flawed forensics, for example, may be challenged at the habeas stage under Texas' junk science writ. But only capital defendants are guaranteed an attorney at that stage. Same goes for ineffective assistance, prosecutor misconduct, and other common habeas claims.

Death cases these days are more thoroughly vetted by appellate courts, at least at the federal level. (State-level representation in Texas capital cases too often remains shoddy.) But for the LWOP prisoners, McCann's "piece of garbage" comment isn't far off. Court of Criminal Appeals Judge Elsa Alcala has suggested extending the right to counsel in habeas proceedings to non-capital cases in order to pursue ineffective assistance claims. There's a strong argument to be made that LWOP sentences deserve the same level of automatic, post-conviction vetting.

The Trials of Eroy Brown

Eroy Brown, a TDCJ prisoner serving time in a South Carolina prison to protect him from state retaliation, is up for parole, reports Mike Ward at the Austin Statesman ("Brown case highlights reluctance to parole long-time offenders," Jan. 18). "Brown is serving 90 years as a habitual criminal for robbing a Waco convenience store of $12 and some candy bars." His story is the subject of a recent book, which I've not yet read, but based on that account, Ward describes in broad strokes the incident that made Brown notorious:

Within the prison system, he is most noteworthy for what happened during a deadly struggle on April 4, 1981, alongside a drainage ditch called Turkey Creek in the farm fields at the Ellis Unit near Huntsville. When it was over, the farm manager, Billy Moore, lay dead from a gunshot from the warden's pistol and the warden,

Wallace Pack, was drowned. Brown claimed self-defense, saying that Moore had been stealing tires from the prison and was afraid Brown was about to snitch on him.

The trial transcript, detailed in a 2011 book about the case, "The Trials of Eroy Brown: The Case That Shook the Texas Prison System," details the events of that day:

Moore drove Brown to the ditch and called for Pack to join them.

"You ain't going to be able to tell a (expletive) thing on me. You ain't going to tell (expletive) on me," Brown testified Moore told him.

Pack pulled the pistol from his car's trunk, and with Brown handcuffed by his left wrist, threatened to shoot the convict, with the revolver cocked at his temple.

"Shut your (expletive) up, boy. I will splatter your brains all over this street here," Brown testified the warden told him.

Spread-eagled astride Pack's car, Brown struggled to wrest the gun from Pack.

The gun went off five times. Brown was shot in the foot. Moore was fatally shot in the head. A third shot grazed Pack's hand. Pack and Brown continued to fight for the gun, rolling into the water-filled ditch. Pack pushed Brown's face into the muddy water, trying to drown him. Brown rolled on top of the warden in the water.

"I laid on him and laid on him," Brown testified. "I don't know how long I laid on him. He stopped moving."

Prison officials insisted the deaths were murder, and prisons were later named for both Moore and Pack.

Brown went to trial three times. Each time, he was acquitted. The acquittal of a black convict in the deaths of two white prison officials never went over well in the hidebound world of Texas prisons, where prison farms were run like plantations and inmates often called their guard supervisors "boss."

By 1984, Texas had agreed to settle a separate federal civil rights case ensuring that Brown and about two dozen other convicts who had assisted in the investigation and other cases would never have to serve time in Texas prisons because it would be too dangerous for them.

That's why Brown has spent the past 26 years in federal prisons in California and South Carolina for the Waco robbery. His attorneys blamed the long sentence on publicity about the prison murders.

Go here for more on the book, The Trials of Eroy Brown, by Michael Berryhill from the University of Texas Press.

No new private prisons needed if immigrant prisoners deported

After being assured by the feds that paroled inmates with deportation orders would actually be sent to their home countries and not end up supervised on parole, the Texas Board of Pardons and Paroles may soon begin paroling immigrants in Texas prisons with deportation orders - both legal and illegal, violent and nonviolent - to free up prison bed space under a new law passed this year. Reports Mike Ward at the Austin Statesman:

"I think several hundred would be a good start, as soon as they can," said state Rep. Jerry Madden, R-Richardson, who sponsored the legislation last spring.

Federal officials noted that some countries, including Cuba and Vietnam, will not take back their citizens. Those felons will have to remain in Texas, state officials said.

Bryan Collier, deputy executive director of the Texas Department of Criminal Justice that runs the prison system, said about 11,500 of Texas' 156,000 state prisoners are not U.S. citizens — and about 6,000 of those currently have a deportation order pending against them.

This is probably the most significant bill passed in the 82nd Legislature aimed at reducing incarceration pressure at Texas prisons. If it's implemented at all aggressively, the state shouldn't need to use new private prison beds authorized as a contingency by the Lege after the Central Unit was closed.

Perry mostly ignores the advice of parole board appointees on clemency

I was briefly quoted in a Texas Tribune story by Brandi Grisssom on Gov. Rick Perry's Christmastime pardons ("Per national trend, Perry stingy with pardons," Dec. 23), which contained several other notable tidbits.

First, as Grits has reported in the past, Grissom noted that "From 2001 to 2009, the board considered more than 2,000 applications. It recommended clemency in more than 530 cases, and Perry granted about 30 percent of them." The Tribune's Matt Stiles created a helpful, searchable database of Perry's Pardons.

P.S. Ruckman who writes the blog Pardon Power got in a good one: "In Texas, the Board of Pardons and Paroles would seem to give the governor a kind of political cover, since he can’t grant a pardon without their recommendation. Ruckman says it’s baffling that Perry so often rejects the suggestions of a board whose members he appoints. This year, the board recommended 41 clemency applications to Perry, but he rejected 80 percent of them. 'You’ve got to wonder, if he appoints them … why he disagrees with them so much,' Ruckman says." Indeed. Grits has noted in the past that "In my own mind, I probably hadn't given the parole board enough credit for how many clemency recommendations they make compared to the meager number Governor Perry ultimately signs off on." Texas would actually have a more robust clemency program if Governor Perry followed his appointees' recommendations.

Grissom compares Perry's record to recent governors: "In his nearly six years as Texas governor, George W. Bush  granted only 21 pardons. Compared to Texas governors before them, Ruckman says, Perry and Bush have been particularly parsimonious with their pardons: Republican Gov. Bill Clements issued more than 800 pardons during his eight-year tenure, and Democratic Gov. Mark White issued nearly 500 pardons in four years." Grissom didn't mention how many pardons Ann Richards gave during her single term, but this source says the number was 70.

The article closes with these sentiments from former Clinton pardon attorney Margaret Colgate Love:

Of course, pardons aren’t just for people who want out of prison. Many times those who request pardons have already served their time and paid their fines and are simply fed up with not being able to find jobs, buy guns for hunting or vote because of their criminal records. In Texas, there are some 1,400 legal barriers for convicted felons, says Margaret Love, a clemency attorney and former U.S. pardons attorney during the Clinton administration. A full pardon wipes those away and gives the offenders better access to jobs, homes and a normal life, which also means they will be less likely to get into trouble with the law again. “The function of the pardon is precisely to say, ‘Hey, it’s okay now,’” she says.

Love says that if Perry is worried about political fallout, he would do better to rely more on the board’s pardon recommendations instead of picking through them himself. “He would be able to use his power more generously," she says, "and there is certainly a need.”

See related Grits posts:

• Christmastime clemency is a joke, but pardons could be meaningful remedy for 'government overreach'
• How the Grinch stole clemency: Christmastime pardons trivialize process
• Casting light on Texas clemency decisions
• Public tired of Willie Horton? Whither 21st century clemency?
• Perry's Christmastime pardons an odd mix, short list
• Clemency in the Rick Perry era
• "The quality of mercy is not strain'd," particularly when it doesn't have to do any heavy lifting

Political grandstanding drives GPS tracking grant

Using federal grant money, Texas is putting GPS monitors on several hundred additional parolees who the Governor says are dangerous sexual predators. But some of them have never been convicted of a sex offense, aren't on the sex offender registry and have been out of prison for many years. Reports the Austin Statesman's Mike Ward:

Though Perry and state corrections officials say the mandate will make the public safer, questions linger about why parolees who were considered good enough safety risks to remove from monitors are now dangerous enough to need them — $1.7 million worth, paid for by a federal criminal-justice grant to improve public safety.

"If they've been determined to be a high-risk offender, then they are being reviewed for a GPS bracelet," said Bryan Collier, deputy director of the Texas Department of Criminal Justice and a former state parole director. "Why are some who did not have monitors now being placed on GPS? This grant has enabled us to monitor some who we didn't have the resources to do before."

In his Sept. 27 announcement in Houston, Perry touted the new monitoring initiative as a way to "provide greater protections to our citizens by taking our efforts in dealing with sex offenders up yet another notch."

Maybe so, said Huntsville attorney Bill Habern, who represents Jennings. "But why, now, all of a sudden, have some of these parolees who have been off monitoring for several years been determined to be a high risk?" Habern asked.

"It begs the question about how the risk is being determined."

By last week, at least 153 parolees had been ordered onto GPS monitors.

Parole officials said more than 500 others, most of them with crimes against children in their backgrounds, were being reviewed for inclusion as well.

An all-but homebound parolee in Dallas suffering from congestive heart disease and diabetes told Ward, "I go out once or twice a week, is all. I'm not able to do more ... To have a monitor on me is a waste of money. This seems like political grandstanding."

He's right: It is grandstanding. Nothing but an election year gimmick that actually makes the public less safe by diverting limited supervision resources toward non-evidence based approaches. Larding on extra conditions for successful parolees who've been out for years makes little sense when the greatest risk of recidivism - and thus the greatest need for close monitoring - is in the first year or two after release.

Last year, Parole Board Chair Rissie Owens was found personally liable by a federal court for applying sex offender registration conditions on offenders not convicted of a sex crime. Some of those targeted by the Governor's initiative appear to fall into the same category, making me wonder what federal courts will think of this program if it's ever challenged.

See related Grits posts:

• You can tell it's election season
• Resources wasted on harsh punishment, registration for low-risk sex offenders
• Parole board chair Rissie Owens personally liable for rights violation
• Rethinking 'America's Unjust Sex Laws'
• Federal judge: Parole board may have improperly labeled thousands as sex offenders

Texas Senate endorses penalty reduction for juvenile capital murderers

I'm as shocked to see the Texas Senate unanimously endorsed eliminating life without parole for juvenile capital murderers as I was to see Williamson County DA John Bradley testify in favor of the bill in committee. Congratulations to Sen. Juan "Chuy" Hinojosa for getting this landmark legislation through the Legislature's upper chamber. If it earns approval from the House and the Governor, the new law would make juvenile capital offenders eligible for parole (though not entitled to it) after 40 years, so in most cases sometime in their 50s.

I don't track capital sentencing issues closely, but Doc Berman over at Sentencing Law & Policy has written a lot on this topic, see:

• Assailing LWOP for juvie offenders
• Effective examination of juvie LWOP problems in Michigan
• HRW report assails juvie LWOP in California
• Nebraska working to reform juve LWOP sentences
• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"
• Does Roper suggest young juve LWOP is unconstitutional?

Hot-button bills highlight first Senate Criminal Justice hearing

The Senate Criminal Justice Committee has a full plate today at its first meeting of the 81st Texas Legislature. Here's a brief description of bills that are up, including several sure to generate controversy:

Pardon me
Royce West has a bill (SB 233) that would allow people with deferred adjudication to receive gubernatorial pardons, though this Governor's miserly use of his pardon power makes one skeptical this would have wide application.

I want your blood
SB 261 by Robert Deuell would expand authority of police to coerce blood draws of DWI suspects when someone is taken to the hospital after an accident.

Enhancements going to the dogs
SB 554 by Chairman John Whitmire would expand the definition of dog fighting crimes to include possession of dog fighting equipment with intent to use it as such.

Government wants more DNA
SB 727 by Dan Patrick would massively expand the number of Texans in the federal DNA database to include all adults on probation, all youth sent to TYC, and all juveniles convicted of felonies. That's a huge expansion from the 400,000 or so Texans in the database now. The debate here is whether potential abuses down the line from the government keeping tabs on DNA from millions of its citizens is worth the public safety bang for the buck, or should the database only include violent and sexual offenders? DNA evidence only exists in fewer than 10% of violent crimes and usually it's matched to a known suspect, not through the federal database. Of particular concern: There are no provisions in the bill for how people, especially juveniles, can have their DNA removed from the database.

Is that a gun in your truck or are you happy to see me?
SB 730 by Glenn Hegar would allow Texans with concealed carry permits to leave their firearm in a locked, personal vehicle while they're at work. My question: Since non-concealed carry permit holders are legally allowed to carry a gun in their personal vehicle, why does the bill exclude them?

Rethinking LWOP for juvie killers
SB 839 by Juan "Chuy" Hinojosa would eliminate life without parole for juveniles whose cases were transferred to the adult system and make the penalty for juveniles charged with capital crimes "life," making them eligible for parole after serving 40 calendar years without consideration of good time. That seems plenty tuff from a utilitarian, public safety perspective, but you can already hear critics declaring "that's better than the victim got." Since the Supreme Court already eliminated the death penalty for juveniles, though, what the victim got isn't an option. Given that, to me the utilitarian arguments trump and this bill balances the retributivist need for punishment with the insensibility of locking up a juvenile until they die of old age.

You can watch the hearing here at 1:30 p.m. or upon adjournment of the Texas Senate.

Explaining the decline in Harris County death sentences

A good discussion broke out over at Doc Berman's Sentencing Law & Policy blog about data from the new report by the Texas Coalition to Abolish the Death Penalty which shows the death penalty on decline in Texas, at least regarding overall totals. Most notably, Harris County sent no one to death row in 2008, though they've sent as many as 15 people per year in the past. Indeed, "While Harris County still accounts for a third of all Texas inmates awaiting execution (116 of 344), it only has sentenced seven people to death in the last four years." Why is that?

The study looked at new defendants sent to death row, not just the number of executions, so delays in cases because of the Baze lethal injection controversy don't play into the analysis.

Doc Berman said "I assume these remarkable numbers reflect the tendency of prosecutors seeking few death sentences and juries handing out fewer death sentences," and I think both those things are true. The Quintero verdict shows juries are responsible for at least part of that trend, which may also be influencing prosecutor decisions.

I suggested another reason for the decline in the comments:

there's a third cause for the declining number of Texas death sentences: New standards in the wake of the 2001 Texas Fair Defense Act to ensure capital defendants have adequate trial counsel. Better lawyers on the front end means fewer death penalty results on the backside, whereas in Harris County, in particular, the quality of counsel in such cases was historically, notoriously low before that law passed.

As evidence of this trend, more than 60 counties in West Texas recently banded together to jointly fund a capital public defender program, solving the dual problem of 1) the large cost of DP defense and 2) the lack of qualified counsel in many rural counties. So some of this may represent shifting public attitudes, but it may also demonstrate what happens when capital defendants receive effective, zealous legal representation compared to a more lackadaisical variety.

(See more about the West Texas capital public defender program - accurately dubbed "murder insurance" by proponents - in this recent Lubbock Avalanche Journal story and also this one.)

Another commenter noted, "The real reason is that Texas recently added life without the possibility of parole as a sentencing option." An anonymous lawyer suggested more reasons:

Additionally, a relatively new method of jury selection, the Colorado method, helps counsel get -- where they are adult enough to know they won't win the guilt phase -- life verdicts much, much, more often. Finally, a change in culture in the defense bar where we call a "win" in a capital case not a NG / "not guilty" but any verdict other than death encourages lawyers to seek life at all costs.

I've not heard much about institution of the "Colorado method" of jury selection as part of this debate and hope to learn more about that later.

Finally, yet another insightful commenter suggested what's likely the biggest reason for Harris County's dip in death row contributions:

For Harris County anyway, political turmoil is probably the largest reason no one was sentenced to death in 2008. Former DA Chuck Rosenthal resigned in February 2008 and an interim DA was appointed until an election could be held in November. I don't have the numbers, but I wonder how many actual death-penalty trials were held in 2008 in Harris County, rather than being delayed so that a new, elected DA could make the necessary decisions.

That's probably true. There's a good chance interim DA Ken Magdison chose to slow down these high profile cases in deference to the office's past dysfunction and its new incoming leader.

When a major change occurs in public policy outcomes - like a county sending up to 15 defendants per year to death row then none just a few years later - often there's no one reason but instead it results from the conjunction of many trends. That's what appears to have happened in Harris County, where I think all of these described trends contributed to this year's surprising goose egg for new death sentences and Texas' overall trend toward decline.

Texas murder, execution and crime rates all declining

Crime and Consequences informs us that this year we've seen:

Fewer Death Sentences in Texas: A story in the Houston Chronicle by Michael Graczyk reports that significantly fewer Texas murderers received a death sentence this year. The annual review from the Texas Coalition to Abolish the Death Penalty noted that 18 executions were carried [out] this year compared with 26 in 2007. The group's Executive Director said "...officials' zeal for executions was not matched by public desire for new death sentences, as evidenced by the continued steep decline in the number of new inmates arriving on death row." What was not noted is that homicide rates in the state's two largest cities are down for the second year in a row. A Dallas Morning News story by Tanya Eiserer reports a whopping 22% drop in that city's homicides. Houston's rate was down 7% last year according to the FBI Uniform Crime Reports, and had continued to decline last spring. The evacuation of Houston and devastation caused there by Hurricane Ike in September may also contributed to lower a homicide rate this fall.

I don't agree that falling murder rates entirely explain the decline in new death sentences. Two other factors - the creation of "life without parole" as the only option to death in capital cases, and changing jury attitudes in the big death penalty counties, especially Harris - IMO have more to do with Texas' recent capital trends.

In 2007, TDCJ received 51 new capital convicts, but 37 of them received sentences of LWOP - only 14 went to death row.

Which is worse: Life without parole or the death penalty?

Reacting to the Juan Quintero verdict, the ADA blogger over at Life at the Harris County Criminal Justice Center poses the question: Which is worse? The death penalty or life without parole (LWOP)? The blogger, A Harris County Lawyer, concludes that "I don't think anyone can really make the argument that LWOP is more severe than the death penalty." I reacted thusly in the comments:

How do you know ... the afterlife isn't entirely glorious and we do every executed offender a tremendous favor by hastening their arrival? Perhaps the streets are paved with gold and all our deceased friends and family will be there to greet us on the other side. Many Christians believe some version of that to be the case, and more than a few offenders turn to Christ during their travails, just like the thief on the cross before he expired.

To repeat my earlier reasoning, everyone dies but not everyone stays locked up in a cage for decades. Death is perceived as a relatively more severe "punishment" because we don't know what comes after, so people fear the unknown. But death is also a sentence to which we're all condemned - everyone's entry card to the human condition bears an unknowable expiration date - which makes it at once as un-extraordinary as it is exceptional. That sounds contradictory, but that's because death as a punishment creates a paradox that's just not there for LWOP. With LWOP, society knows EXACTLY what punishment the offender is getting, because we're all here on earth to see it. With death, at most one can "hope" it's enough. And since vengeance cannot bring back the victim, it never is.

What do you think? Which is the harsher punishment, LWOP or the death penalty?

BLOGVERSATION: At Simple Justice, Scott Greenfield tells this related anecdote about attitudes toward prison and the death penalty in China:

I was half of a contingent meeting with a judge from Mainland China. My bookend was Larry Goldman, former president of the National Association of Criminal Defense Lawyers and sophisticated New York bon vivant.

Eventually, discussion turned to China's execution of prisoners, enough to make a Texan blush. Bearing in mind that China (pre-quake) had far more people than it could handle, I anticipated that the judge would view life as a rather expendable commodity, and justify the imposition of the death penalty as being a fairly mundane sanction, where a billion fewer people would not be noticed.

The judge did not. Not at all. He was quite serious in explaining that he believed that death was a kinder outcome to the defendant than life in a Chinese prison without parole. In fact, he was critical of our view that putting a human being in prison for the rest of his life like a caged animal was less cruel.

The picture he painted (mind you, he was talking about Chinese prisons, not American) was of a slow, lingering death of 20 to 50 years, maybe even longer, making it sound like a means of horrible torture. Death by a thousand days, rather than swift and painless not too painful. He could not understand why we would think the suffering of life in prison was of a lesser quality than execution.

See recent related Grits posts:

• Why choose life? Exploring possible reasons for the Quintero verdict
• Danalynn Recer on the Quintero verdict

ALSO RELATED: From the Houston Chronicle, "Will death become the exception, not the rule," May 26

Danalynn Recer on the Quintero verdict

Yesterday evening the missus and I had dinner with a friend from our college days, Houston attorney Danalynn Recer, founder of the Gulf Regional Advocacy Center. She's taking a break in Austin after concluding the long and grueling capital murder trial of Juan Quntero last week, an illegal immigrant copkiller who jurors gave a sentence of life without parole (LWOP), a verdict that surprised many court watchers.

The Quintero trial wasn't about guilt or innocence, but entirely about what sentence to give out: life without parole or the death penalty. Dana barely spoke to the press during the trial, much to their chagrin, so I appreciated that she agreed to a short interview about the Quintero case for Grits.

Speculation has abounded since the verdict, including on this blog, about why the jury voted they way they did, but Recer thinks that "if people want to take a lesson from this case, they should take the jurors at their word" when one of them declared, "I believe he has value ... He's loved by many of his family and friends, and that was number one." She said the jury simply lived up to their duty identified by the Supreme Court to issue a verdict based on a "reasoned moral response."

Quintero was "so remorseful and self-hating over the incident," said Recer, that he seriously considered becoming a "volunteer," i.e., simply acquiescing in a death sentence in order to punish himself and avoid life in prison. Quintero's two teenage daughters talked him into going to trial and participating in the "mitigation" defense, Recer said, which allowed his lawyers to dig deep into his personal life and medical history. They convinced him that "his life is not over, he's still a Dad."

Asked why Quintero committed this unspeakable act, Recer said the bottom line was he was afraid, and reacted in the heat of a panic attack, responding to a "threat that didn't exist." Quintero has a chronic anxiety disorder, she said, and self-medicated with alcohol. (Quintero drank daily on a scale that could only be defined as gross alcoholism - up to a case of beer a day.) To that extent, she said ironically, one psych expert believed Quintero may not have shot Officer Johnson if he wasn't sober (!).

Recer also believes that a childhood brain trauma contributed to the circumstances, though she acknowledges many people were dismissive of the claim when it was raised by the defense. The frontal lobe injury, she said, made him cling to routines and caused him panic attacks when confronted with the unexpected. Then he found himself in a most unexpected, un-routine circumstance - arrested at a traffic stop for reasons he didn't understand, sitting in the back of a police car with a gun hidden in his belt - and she thinks the brain injuries inhibited his decision making functions during those critical moments.

Finally, Recer said some of the information that might have better explained Quintero's mindset was excluded or made unavailable because prosecutors went after his employer and family members on other charges, making them unavailable or unwilling to participate in Quintero's trial. However, she said over the three months leading up to the shooting Quintero had become increasingly paranoid and irrational, as well as fearful and distrustful of police, mostly from hearing second hand accounts of abuse or alleged corruption, and from his experience with police in Mexico.

None of this justifies Quintero's actions, Recer said, which is why his lawyers did not contest the elements of the offense and only argued over the correct sentence. But she believed all these were contributing factors; they were the reasons for what happened, even if no one can point to a single good reason for shooting a police officer in the back.

Given these "bad facts," what explains the verdict? Recer believes the case shows people in Harris County "are not as bloodthirsty as we're generally led to believe." In voir dire (jury selection), lawyers vetted 126 jurors, and by a 5-1 margin jurors were excluded because they refused to consider the death penalty compared to those who said they would refuse to consider life. She thinks Harris County DA's office "misunderstands its constituency," and that the jury they got was essentially representative of their jury pool and the citizenry at large.

She did say, however, that the Batson and Miller El cases from the US Supreme Court, which limited prosecutorial jury strikes based on race, kept the prosecution from using pre-emptory strikes as aggressively as in the past. So in that sense, I asked, is it fair to say you didn't win the case at jury selection but the prosecution lost it there? "Possibly," she nodded. "There were a lot of reasons, plus a lot of luck, but jury selection was big." The jury "was a necessary but not sufficient condition," she said, for getting the LWOP verdict.

Recer said they'd tried unsuccessfully to convince the state to agree to a plea and avoid an expensive, drawn-out and unnecessary trial. She was roundly criticized for releasing that information to the media, which reinforced her inclination, she said, simply to tell the press nothing at all. Recer said the proffer had been discussed in open court as well as written pleadings, and the fact it had been made wasn't privileged.

In any event, the time came when Quintero's lawyers got a meeting with the Harris County DA's Office, where they hoped to present most of the mitigation evidence that later went to the jury. She was amazed, she said, the state's lawyers didn't just shut up and listen to their opponent's case, even if they intended to go to trial. After all, the defense presentation amounted to "free discovery." But Chuck Rosenthal, himself representing the office at the meeting, was openly dismissive that anything could mitigate the crime, shutting down discussion before she'd even laid out her evidence. If he'd let the meeting continue, she said, at least they "would have known what's coming."

Recer believes the verdict reflects changing public attitudes generally toward the death penalty, as well as changes in the law. The Legislature's decision to make LWOP the only alternative to a death sentence played a big role in the jury's verdict, she thinks. But their experience in voir dire makes her believe the pendulum may be swinging away from more punitive public attitudes in the '90s.

One last thing I should mention: A recurring theme throughout our talk was Recer's displeasure with reporters covering the case. She said MSM journalism focuses solely on generating conflict to sell newspapers, so they wanted to portray every story as filled with conflict as possible. In fact, she said, Quintero's defense granted most of the facts alleged by the state, and there was little real disagreement. She considers the sentencing phase of the trial a function of "nonviolent conflict resolution" that becomes distorted by the media formula of conflicting "balanced" quotes on "opposing" sides. Everyone in the courtroom was really on the same side, she said. They all knew what Quintero did was wrong and were all seeking justice.

Photo via the Houston Chronicle/Billy Smith.

Why choose life? Exploring possible reasons for the Quintero verdict

By all accounts the late Rodney Johnson was one of Houston's finest police officers, and a jury yesterday gave his murderer life without parole, leaving many in Houston wondering why the death penalty wasn't imposed in the wake of the tragedy.

Elsewhere in the United States and even in Texas, death sentences are becoming increasingly rare, but they're still handed down with enough frequency in Houston for the media and local court watchers to express shock (and in some cases, dismay) that a jury gave copkiller Juan Quntero life without parole instead of a death sentence. The Houston Chronicle reported that:

It sounded like a foolproof recipe for a death sentence: an admired and respected police officer shot in the back by an illegal immigrant whose history included criminal convictions for drunken driving and indecency with a child as well as deportation.

But a Harris County jury decided otherwise, shocking most people who paid even the slightest attention to a trial in which the shooting itself was never an issue and the defendant's character offered little to praise.

Danalynn Recer, one of the attorneys for Juan Quintero, said the lesson to take from the jury's decision to give him life without parole instead of death is that the people of Harris County are far from the bloodthirsty yahoos of national caricature.

Said Johnson's sister to the jury after the verdict in her moving victim impact statement (see the video online here), "You had another man's life in your hands, as he did. He chose to take it, you chose to spare it. That's being human."

Johnson's wife, though, didn't see it that way: "My husband's life meant nothing — that's what I felt," Joslyn Johnson, also an HPD officer, said of the verdict.

Personally I'm not sure where this idea comes from that the death penalty is a harsher punishment than life without parole. Everyone dies, but not everybody spends their whole life locked up in a cage.

The Chronicle published an article this morning by Mike Tolson, "Quintero verdict baffling to many," interrogating the question of why a death-qualified jury sentenced Quintero to life without parole (LWOP). One theory is that the LWOP option makes it less likely the death penalty is imposed. Reported Tolson:

Texas added the life-without-parole measure in September 2005. Over the past three years, juries in the state have returned death sentences in 14, 11 and 15 cases, respectively. The yearly average over the previous decade was 34, and the lowest previous total was 23.

Another possibility, wrote Tolson, is that the public generally supports capital punishment less, writing that, "death sentences in the United States are in decline. The total has dropped steadily from 326 in 1995 to just over 100 in 2007. Abolitionists claim the public taste for capital punishment has diminished because of exonerations and other well-publicized shortcomings of the criminal justice system." (Like those quoted in the story, though, I seriously doubt that's the reason.)

University of Houston law professor David Dow credited top-notch lawyering by defense counsel for the verdict, citing an approach the educated the jury throughout the process on mitigating factors aimed at the sentencing phase of the trial:

"I think the lesson in this case is that the lawyering matters a lot. The defense strategy of front-loading all the evidence about his mental problems in the guilt/innocence stage (of the trial) was a brilliant legal tactic. It had the jury thinking from the first stage of the case that there is something wrong with this person. And even in Harris County, the death penalty capital of the world, when the jury thinks there is something wrong with a person that interferes with his judgment, they will be willing to not impose the death penalty."

Another theory is that the case was won at jury selection, or else that this particular jury was "quirky" or different from most:

death penalty expert Adam Gershowitz of the South Texas College of Law also was unwilling to make too much of the verdict other than it was unexpected.

"It's very surprising," Gershowitz said. "I find it hard to believe that this case is the result of that trend (of fewer death cases). I think it has to be the result of this particular jury. If they seated another jury tomorrow, it could come to a different conclusion."

But all these possibilities ignore our only direct source about why the jury did what they did, the jurors themselves: "I believe he has value," said juror Letty Burkholder, of Houston. "He's loved by many of his family and friends, and that was number one. I felt like he has potential." Nine other jurors agreed. Perhaps that's reason enough to temper justice for Quintero with mercy.

Whatever the reason for the verdict, unlike if the jury had gone with the death penalty, the family will not have to endure years of habeas appeals and on-again, off-again execution dates commonly associated with death row cases. Juan Quintero is locked up for good, and now, with luck and God's grace, his family, friends and the community can begin to heal and move on.

RELATED: For prosecution and defense blog perspectives, respectively, see The Quintero Verdict, from Life at the Harris County Criminal Justice Center, and Life for Quintero at Defending People. See also a good discussion at Capital Defense Weekly.

MORE: From the Chronicle, even Quintero was surprised by the verdict. Legendary Houston defense lawyer Richard "Racehorse" Haynes credited the results, as have many others in recent days, to top-flight lawyering by Quintero's attorney Danalynn Recer, who in the interest of full disclosure is a former client and a classmate of mine and my wife's from our college days at UT.

Elderly inmates health costs rising

In their old age, murderers and rapists in Texas prisons receive better healthcare services than your grandmother, KHOU-TV reported yesterday ("High cost of seniors serving time in Texas prisons," Dec. 15). Maybe your Mom can't afford nursing home care, but taxpayers finance similar facilities for convicted killers. What's wrong with this picture?

A lot of politicians who pound the table demanding tax cuts as solutions for all economic woes are the same ones who want ever-longer prison sentences and go out of their way to appear "tough on crime." I wonder how they can look at this result and justify both positions? Reported KHOU:

The attention an 89-year-old convicted killer gets could make some people jealous.

11 News' Ron Trevino asked Dr. Bobby Vincent at the UTMB-Estelle Prison Unit about the attention some elderly inmates receive. "Is it safe to say a lot of the patients in this unit get better care than a lot of people the same age, out in the free world?"

"Absolutely, absolutely, without a doubt," Dr. Vincent replied.

UTMB handles the medical care at the facility for the most expensive of Texas prisoners.

Thanks to modern medicine, prisoners, like the rest of us, are living longer lives. Couple that with longer sentences and elderly inmates are the fastest growing segment of the prison population.

The report described the medical wing of the Estelle Unit where elderly prisoners are housed as the "closest thing the Texas prison system has to a nursing home." Well, have you ever priced a nursing home? We're talking big bucks. I'll bet they're more expensive with guards and surveillance. And who is still serving their prison sentences at 80+ years old? Those who've committed the most heinous crimes, no doubt -- murderers, rapists -- folks who did something terrible, but in many cases likely aren't a threat any longer, imprisoned as much by their infirmities as by concrete walls.

Now that Texas has passed a Life Without Parole option for capital offenses, we'll see a new class of offenders spending their twilight years on the taxpayers' dime, some of whom entered prison as teenagers. When the state chooses to incarcerate someone, it takes on a constitutional obligation to provide for their healthcare. Elderly inmates incur huge medical bills; in the end, I doubt a cost-benefit analysis could justify the expense in terms of increased public safety. Meanwhile,

Healthcare costs keep going up in the prison system. From dialysis to drugs, it's putting more of a strain on an already maxed-out state budget.

"I think oftentimes people forget that we've got granpas and grandpas in jail here, spending the rest of their life with us," said Dr. Owen Murray, UTMB Correctional Managed Care. "And that is very expensive care, as the free world folks know. And we're assuming that burden, I think, as a state."

If these inmates seem costly now, the expense increases with each passing day. "The general population in Texas prisons is growing annually at around 1 percent, while the over-55 population is growing at about 11 percent each year," KHOU reported. YOW! The most expensive portion of the prison population is expanding 11 times faster than the prison system as a whole! Eleven. Times. Faster.

Governing is about making choices, especially when Texas' governor and legislative leadership have taken new taxes off the table, and even proposed lowering them. So we must choose: Would Texas rather pay to incarcerate an 89-year old, or use that money to educate 10 more students? Would we rather expand the nursing home wing in the prison system or pay for traffic improvements in Houston and Dallas? What's more important? There's a point after which tough on crime becomes too tough on taxpayers.

RELATED: See posts from Doc Berman on the rising cost of elderly inmates.