November 06, 2018

Study of Judicial “Rubber-Stamping” Raises Concerns About Meaningful Review in Texas Death Penalty Cases

In May 2018, University of Texas School of Law Professors Jordan Steiker and James Marcus and Capital Punishment Center Clinical Fellow Thea Posel published a lengthy article in the Houston Law Review examining the disturbing trend of Harris County judges’ wholesale adoption or “rubber-stamping” of the prosecution’s “Findings of Fact and Conclusions of Law” in death penalty cases. The study found that in 96% of 191 capital cases reviewed, Harris County judges adopted verbatim the state’s proposed findings regarding contested factual issues and legal conclusions in the case. Harris County has long been known as a death penalty “hotspot.” Texas on the whole is responsible for over one-third of all executions in the United States since 1976, and Harris County itself is responsible for nearly one-quarter of all executions in this time period. And the practice of rubber-stamping, the authors conclude, effectively “prevents Harris County post-conviction courts from enforcing federal constitutional norms” in reviewing death penalty matters.

The Findings of Fact and Conclusions of Law play a critical role in the death penalty appeals process in Texas. Like in most capital jurisdictions, there are two regular components to the state-court review of a death penalty case after an individual is convicted and sentenced to death: direct appeal and state habeas corpus proceedings—which, unlike in many other states, run concurrently in Texas. During the direct appeal, a challenge to the defendant’s conviction and sentence based solely on the trial court record is submitted directly to the state’s highest criminal court, the Texas Court of Criminal Appeals (CCA). During the state habeas process, however, claims challenging the constitutionality of the conviction and sentence are first brought in the trial court that originally tried the defendant. These claims are typically based on information that was gathered outside the trial record, such as facts about the crime, witnesses who testified at trial, or the defendant’s background that could or should have been known to trial counsel, and would have been helpful to the defendant’s case, but were not raised at trial. One of the most common types of claims in state habeas proceedings is that these omissions or oversights on the part of trial counsel were so egregious as to have deprived the defendant of the right to effective assistance of counsel under the Sixth Amendment. The study evaluated the practice of rubber-stamping in the context of these types of claims.

There are two ways in which state habeas proceedings are typically resolved in the trial court: once the prisoner submits his brief outlining the constitutional violations he is alleging affected his case, and the state submits its response, the trial court either then sets the matter for an evidentiary hearing—where witnesses can be summoned and examined by both parties—or merely requests that both parties submit their own “Proposed Findings of Fact and Conclusions of Law” based on the arguments raised in the briefs. If an evidentiary hearing is held, the court will ask for the proposed findings to be submitted subsequent to the hearing. Under the statute governing the habeas procedure in Texas, Article 11.071 of the Texas Code of Criminal Procedure, the trial court is then expected to adopt and sign its own Findings of Fact and Conclusions of Law based on the claims raised in the briefing and any evidence introduced during a hearing. These findings are then reviewed by the CCA, which makes a final determination as to whether habeas relief should be granted or denied in the case. Pending whether the CCA’s decision is then appealed to the U.S. Supreme Court, the CCA’s ruling on the issue effectively “closes” the state court review of the death sentence.

In their article, Steiker et al. posit a variety of reasons why rubber-stamping state habeas findings may be so commonplace in Harris County:

  • First, an unprecedented number of capital cases in the 1990s through the early 2000s put additional pressure on judges who were already managing large dockets. Between 1999 and 2003 alone, over fifty prisoners were sent to death row from Harris County.
  • Second, because the trial court that upheld the conviction is initially tasked with presiding over the post-conviction review, there is a possible incentive on the part of the judge not to overrule a sentence or verdict rendered in her own court.
  • Third, trial judges in Texas are selected through partisan elections, disincentivizing grants of relief in post-conviction capital cases by judges who are concerned that those grants will be used against them in subsequent elections.
  • Finally, there are no real consequences to the court, the prosecutor, or the judge, for rubber-stamping these findings.

The process of routinely rubber-stamping raises a host of concerns. The post-conviction process is supposed to be adversarial, giving both the prosecution and the defense an equal opportunity to raise and argue contested issues. The rate at which the state’s proposed facts are adopted wholesale by courts suggests that many judges begin with the assumption that the state’s assertions are correct and are not subjecting the state’s assertions to any meaningful review. This concern is supported by other findings in the study, such as the fact that in many cases, judges signed the state’s order without even changing the word “proposed” in the title, or correcting typos throughout the text. Furthermore, in several cases, findings were signed by the trial court before the defense was even allowed to submit its own proposed order, and some within 24 hours or less of submission by the state. Such rapid disposal of cases is incongruous with the careful review that is called for in these life-or-death matters, particularly given that the orders typically concern numerous legally and factually complex issues and are sometimes hundreds of pages long.

Compounding these concerns about lack of fair process in the state court is the deference that federal courts must, by law, give to those state court findings. Federal habeas is typically the defendant’s final chance to receive relief for any alleged constitutional violations in his case. The deference afforded to state court findings during the federal habeas process is premised in large part on the idea that the state habeas proceeding will be a robust and appropriately adversarial vetting of all the potential constitutional issues that may have infected the defendant’s case at trial. This assumption is part of the reason the scope of federal habeas corpus review has been limited in the past two decades. If such robust and adversarial review is not taking place at the state court level, the ability to ensure fairness and accuracy in capital cases is jeopardized in the system as a whole.

Read: The Problem Of “Rubber-Stamping” In State Capital Habeas Proceedings: A Harris County Case Study