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Inequality

Gov. Greg Abbott

This is the sixth column in a series about Melissa Lucio and the State of Texas’ capital case against her. Read the first column here, the second here, the third here, the fourth here, and the fifth here.

The criminal legal system values finality over accuracy. It’s better to be done than definite.

That’s why re-litigating the same issues doesn’t work - if it’s even allowed. Post-conviction review generally happens through either what’s called a direct appeal — where a reviewing court examines only the record and the evidence at trial and determines whether reversible error occurred — or a legal application called a petition for a writ of habeas corpus — where another reviewing court can consider evidence outside the record: expert or supplemental testimony. Other differences between appeals and habeas corpus actions separate them, but laws and rules govern both types of review to assure that issues terminate in a final decision and don’t get opened again.

Finality’s prominence in American jurisprudence is bad news for people who lose in court, but it’s also necessary so that litigation finishes eventually. That a case ends in ways we don’t like is, unfortunately, insufficient justification to keep it going. This juridical truth disappoints lawyers and supporters of those inmates on Texas’s death row because they know what the case’s terminus often looks like: a coffin picked up by the family or interred at Byrd Cemetery in Huntsville, Texas.

Very little is definite about the case against Melissa Lucio except that her execution is less than a week away. Even with the death chamber so close, Lucio’s lawyers — a team of attorneys from Cornell Law School, the Texas Federal Defenders Office, and the Innocence Project — selectively decide what to present to save her life. Other arguments that can save Lucio’s life aren’t as final as the ones these attorneys have presented — and they’re a lot more promising. But they’re still in the ether and haven’t made their way to paper and a clerk’s stamp for reasons no one can discern.

Namely, no specific claims of prosecutorial misconduct have appeared yet. In fact, the entire record of this case is devoid of any mention of the phrase.

Lucio’s original habeas corpus petition, one that addressed certain issues of ineffective assistance of counsel, doesn't deal with the district attorney’s behavior because earlier attorneys didn’t catch former Cameron County District Attorney Armando Villalobos’ misconduct. That in itself may constitute ineffective assistance of counsel, but it also provides reasonable explanation as to why they didn’t include it in the petition.

Attorneys who filed the most recent petitions — Amended Petition for Clemency on April 12 and a new, successive petition for a writ of habeas corpus on April 15 — know about the misconduct and they didn’t use the phrase “prosecutorial misconduct” either.

It’s not that they didn’t address the fact that prosecutors withheld exculpatory information and introduced false evidence; they did, but they buried those claims under their tautological pitch that Lucio’s case would have been different if it hadn’t been the same.

There’s time and potential for one court to react and spring Lucio from the execution chamber. Texas Code of Criminal Procedure Article 43.141 allows a trial court to withdraw or modify a death warrant if “a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071” requires additional proceedings. The petition filed on April 15, 2022 satisfies this rule, but in it, attorneys seem intent on developing a narrative of juror regret, that jurors might not have voted to convict or condemn Lucio under certain circumstances.

That may be true for every trial; it’s certainly not unique to Lucio’s case. But more importantly, that’s actually not a legal basis for reopening a case.

There’s a reason for that, too, as Shannon Edmonds, staff attorney at the Texas District and County Attorneys Association said during an April 12, 2022 hearing on the Lucio case before the Criminal Justice Reform Committee of the Texas House of Representatives: “...if the legislature made [jurors changing their minds] a legal basis for creating a new way to to encourage more litigation, you unfortunately, are creating an open season on every juror who is sat on a death penalty case because the defense who zealously represents their clients will be duty bound to try to find whatever you set the threshold at three jurors five jurors to hound those jurors in an effort to try to clear that threshold and get their client another bite at the apple.”

It’s an end-run around the finality that this system prizes so much.

The argument about prosecutorial misconduct is much less a dodge. It’s never been raised, much less litigated, and its effects on jurors probably don’t matter for the purpose of staying this execution. Bennett L. Gershman, professor of law at the Elisabeth Haub School of Law at Pace University and one of the nation’s leading experts on prosecutorial misconduct said: This young woman is about to be killed… You're talking about the sense of justice and mercy and so on. I can't see this execution going forward under these circumstances because there is a serious question of this prosecutor tricking the jury into voting to sentence her to death and that is a serious issue here, regardless of what you would like to say or not say.

“If the prosecutor presented to the jury false evidence that would aggravate the defendant's potential for being executed, which this clearly did,” Gershman continued. “I don't think the court is going to count whether the jurors were in fact prejudiced or not.”

It appears that attorneys are banking more on discretionary relief — sparing Lucio’s life because of her innocence and background of trauma and gender-based violence — from Texas’ Board of Pardons and Paroles than on court intervention. It’s a bad call. In the gamble on Lucio’s life, it’s like staking another bet when the line has already closed, rather than opening a new round.

Making a more explicit case of prosecutorial misconduct enhances the case for mercy. Texas Gov. Abbott was a trial judge, a supreme court judge and attorney general of the state before Texans elected him governor in 2014. His record of deciding legal claims is stronger than his sense of sympathy or empathy for defendants who aren’t employed in law enforcement. His recent grants of clemency are small in number and usually go to people convicted of minor crimes. He and his Board of Pardons and Paroles have denied George Floyd a posthumous pardon — on procedural grounds. They like it when technicalities prevent hard decisions.

Swelling Abbott’s heart to make room for a woman whom courts have decided — however erroneously — is guilty of capital murder is a lot harder to do than explaining what’s very clear in the record: The prosecutor in the case against Lucio cheated.

Concentrating on getting what is essentially discretionary relief on things that have already been decided and considered final is too risky when so many other meritorious positions — including many forms of prosecutorial misconduct — exist. Positions like that aren’t definite to but they’re also not done.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns will now appear regularly in The National Memo.

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Debunking Right-Wing Lies About California

Unless you’ve been hiding under a rock for decades, you’ve probably noticed that conservatives hate California. It’s an obsession.

Donald Trump’s disdain for the state is well known. But conservative anti-California hatred goes far beyond the ex-occupant of the Oval Office.

The enduring sources of these fusillades are conservative thought leaders. And as they portray it, California is a failing Banana Republic.

In their jaundiced view, the Golden State is a violent, poverty-stricken homeless dystopia that is overrun by thieves.

The facts show that California attracts more capital, creates more wealth, generates jobs with better pay, suffers lower rates of work-related fatalities and has safer streets and longer lives.

Short on facts, they’ve even stooped to posting a doctored video in an attempt to show that Black gang members were so fed up with crime that they stopped looters in Long Beach, a city of a half-million people. And they assert that California is run by street gangs and misled by incompetent criminal-coddling politicians whose radical, immigrant-loving, left-wing agenda is horrible for businesses, which supposedly are leaving the state in droves.

Yet some states beloved by the right are far more dangerous, data on reported crimes show.

For the haters, California is the quintessence of liberalism’s—or socialism’s—failure. All of the state’s problems, in the view of these self-proclaimed conservatives, are always the direct fault of its “far-left” policies. Always.

In a broadcast called “The slow, painful death of California,” Fox News host Tucker Carlson asserted: “The policies that destroyed America’s largest and most economically important state are heading your way.” Significantly, Carlson got out of a lawsuit after Carlson’s lawyers argued that you can’t believe what he says.

Never one to resist attacking California, The Wall Street Journal editorial board ran an editorial titled “California’s Covid Woes.” It obsessed over overcrowded hospitals and long wait times, which it blamed on MediCal, the state’s medical care program for the poor. It is another favorite target of Journal editorial disdain.

Curiously, the WSJ’s attack, which compared California’s Covid record unfavorably with Texas’, never mentioned a crucial fact: California’s Covid mortality rate was 30% below that of Texas and 36% below the nation as a whole.

Of course, there’s little wonder why the Journal editorial board omitted that statistic: including it would vitiate their argument. After all, it’s pretty hard to portray California’s response to the pandemic as a horror when its death rate from this pernicious virus is well below the rest of America.

That omission illustrates what’s missing from conservative jeremiads. It’s their tell.

Here’s what you won’t read in their screeds, starting with what arguably is the biggest lie about California:

Business and Investment

While California is home to 12% of the U.S. population, it attracted 47% of the most sought-after investment dollars deployed nationwide last year, according to National Venture Capital Association data.

The $156 billion of venture capital invested in California firms in 2021 was a 79% increase over its 2020 haul. And the 2020 sum was a 29% increase over 2019.

Far from a state in economic decline, California attracted more capital last year than at any point in the NVCA’s data set going back to 2005.

California is the most populous state so those total figures could suggest the state fell short in these investments when examined per person. But no. California got nearly four times its share per capital of all such investments in America.

Productivity

California is the fifth most productive population in the country, federal Bureau of Economic Analysis data posted at Statista.com show.

In 2019, California’s economic output per person was $79,000, almost 22% above the national average of $65,000, (Editor’s note: adjusted the data to 2019 dollars.)

Income, Wealth and Poverty

The typical California household took home more than 45 other states; 22% more than American households overall. The nearly $15,000 in extra income has not, however, deflated the state’s poverty rate. It is persistently high at 11.8%, yet still below such darlings of conservatives as Mississippi (19.5%), Louisiana (18.8%), Arkansas (16%), Alabama (15.6%) and Oklahoma (15.1%), federal data show.

A state study in 2019 found that while California is 12% of the American population, its residents own 17% of American wealth despite its high taxes and environmental protections. Of course it’s hard to get rich in states that don’t provide the commonwealth benefits that foster wealth creation and high-paying jobs with benefits such as quality research universities that Californians have long supported.

Crime

You were more likely to get killed in 27 other states than in California, the federal Center for Disease Control (CDC) reported for 2020. Interestingly, you were far more likely to get killed in Mitch McConnell’s Kentucky than the Golden State. The highest rates were in Louisiana and Mississippi, more than triple the California rate, while the rates in Arkansas and Missouri were more than double the California rate.

Workplace Deaths

In 2019, California employees were less likely to die on the job than in 43 other states, according to the federal Bureau of Labor Statistics. The California rate was 2.5 deaths per 100,000 workers compared with double that or slightly more in Louisiana, Montana and West Virginia; more than three times more in Alaska and four times more in Wyoming.

Longevity

CDC data show that Californians live longer than the residents of all but one state – Hawaii, another state conservatives love to bash. Life expectancy in California is 80.8 years, more than six years longer than in bottom-ranked Mississippi and West Virginia, both beloved of conservatives. Hawaii bests California by about two months of extra life.

These are among many inconvenient facts for conservatives about how California, with its high taxes and environmental protections, outperforms America overall and the Southern, Midwest and Rocky Mountain states where conservatives have the most sway.

There’s a reason the right omits the facts in their commentaries, columns, editorials and cable television rants attacking California, its voters and their elected leaders.

California’s successes defy conservative cosmology, which holds that taxes, unions, workplace safety rules, environmental protections and immigrants repel capital, kill economies, hurt families and denigrate life itself.

The facts show that California attracts more capital, creates more wealth, generates jobs with better pay, suffers lower rates of work-related fatalities and has safer streets and longer lives.

Those successes flatly contradict what GOP orthodoxy predicts. But rather than confronting reality, conservatives are trying to re-write it by leaving out salient facts and as a result producing political fiction.

Reprinted with permission from DC Report