Lethal Injection in Texas: A Three-fer Week Scheduled

Read an expanded version of this story at The Rag Blog

On Tuesday, Wednesday, and Thursday of next week Texas plans three lethal injections in a row. And in each case, there are troubling questions.

On Tuesday, Larry Swearingen is scheduled to be executed for a crime that probably took place while he was in jail. Scott Henson reviews the facts at Grits for Breakfast.

* * *

On Wednesday, Virgil Martinez is scheduled to be killed for shooting to death an ex-girlfriend, her friend, and two children. An awful crime. But Martinez was arrested at a mental hospital where he had admitted himself for hearing voices ordering him to kill, and jurors were never told that he suffered from temporal lobe epilepsy (TLE). The Brazosport Facts published a good overview of the Martinez case in 2006.

According to federal court records accessed by the Texas Civil Rights Review, a magistrate judge concluded in 2005, and a federal district judge agreed in 2006, that the trial attorney for Martinez could have made better use of medical evidence about TLE and “post-seizure aggression.”

The federal documents further indicate that Martinez did exhibit “bizarre and at times violent behavior” during his time at a mental hospital.

But in 2007 a federal appeals panel argued that the trial attorney for Martinez was justified in not telling jurors that the defendant had a condition that could cause “savage and uncontrolled” aggressiveness. Such information, along with other facts about his history of aggression and jealousy, might persuade the jury that a death penalty would be most appropriate.

The appeals panel agreed with the magistrate and district judges that the lawyer did not understand the difference between violence during a seizure and “post-seizure” aggression. But, giving strict attention to the question that was put to them, the appeals panel refused to label this failure as a mark of attorney incompetence.

So it may still be the case that “post-seizure” aggression is a medical condition that affects Martinez, and which affected him at the time of the four killings. Setting aside the question about whether his lawyer was competent in selecting a defense strategy under the circumstances of the trial, the appeals record has produced a fact that is significant.

Perhaps we can still expect a stay in this case.

* * *

On Thursday, Ricardo Ortiz is scheduled to be killed by lethal injection because he was convicted of lethally injecting a cellmate with a triple dose of heroin.

The official account posted by Texas prison authorities says that Ortiz and two other cellmates cooked up three doses of heroin in an El Paso cell and that Ortiz injected all three doses into the victim who died of an overdose.

The Texas Attorney General adds that Ortiz committed the crime in order to prevent his cellmate “from testifying against him” about some bank robberies.

So here is what Texas officials tell us: they held a prisoner in an El Paso cell with someone who could testify against him. They allowed three doses of heroin into the cell, didn’t smell it while it was cooking, and didn’t notice a thing until the next cell count revealed a dead prisoner.

Are Texas authorities so into lethal injections that they’d set up the ideal conditions for one and then use their own malpractice as a foundation to practice another? — gm

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