This past May, The Constitution Project’s Death Penalty Committee released its report “Irreversible Error,” which presents recommendations to correct the injustices in the administration of the capital punishment. While the news cycle is replete with examples of why reforms are imperative, a recent case out of Texas illustrates how errors in death penalty cases are particularly complex and seemingly intractable.
Manuel Velez, a 49-year-old construction worker, walked free on Oct. 8 after being imprisoned for nine years in a Texan prison, four of them in death row. And despite his innocence, he will remain a convicted offender.
In 2005, Mr. Velez was arrested in Brownsville for murdering Angel Moreno, the one-year-old son of his then-girlfriend, Acela Moreno. The baby died of a head trauma that had been inflicted within the final two weeks of his life. In 2008, Mr. Velez was convicted and later received the death penalty.
In 2008, lawyers began to investigate numerous apparent flaws in the investigation and prosecution of Velez’s case and worked to overturn his conviction in the face of overwhelming evidence of his innocence. These included
a) Poor quality counsel during his trial. Mr. Velez’s court-appointed attorneys during his first trial did not present evidence of his clear innocence. Particularly, they did not present the fact that he was actually working in Tennessee when the head injuries the baby sustained occurred. Moreover, his attorneys did not present the testimony of many witnesses indicating that Mr. Velez was always a good and peaceful caretaker of Angel and that Ms. Moreno had a history of abusing her child.
b) Forced incriminating statements. After his arrest, police officers interrogated Mr. Velez. The interrogation was not videotaped even though police possessed the equipment to do so. After the interview, Mr. Velez, who is mentally disabled (65 IQ), signed a statement prepared by the police in English in which Velez admitted he had mistreated Angel. Velez, however, was a Spanish speaker with rudimentary English and, in any event, he was functionally illiterate in the two languages.
c) Expert’s false testimony. Mr Velez was sentenced to death based on the testimony of a state prison expert who presented false testimony on the potential danger to society he posed if given life without parole.
As a result of the lawyers’ re-investigation, in June 2012, the Texas Court of Criminal Appeals threw out Velez’s death sentence, finding that the state expert and the prosecutor should have known the testimony was false, but presented it anyway, leading to an unjust death sentence. Then, in April 2013, a District Judge in Brownsville recommended that Velez be given a whole new trial considering the poor quality counsel during his first trial.
The case of Manuel Velez exemplifies the urgency with which jurisdictions with capital punishment should adopt several recommendations of “Irreversible Error”. Chapter 1 of our Report highlights mechanisms for “Safeguarding Innocence and Preventing Wrongful Executions.” One provides that “the government should be required to disclose to the defense, as soon as practicable, all (post-conviction) forensic testing results.” (see Recommendation 3). In Mr. Velez’s case, prosecutors did not disclose during the first trial nor at the post-conviction stage a forensic exam determining that the injuries suffered by Angel were caused two weeks before his death, while Mr. Velez was working in Tennessee.
Chapter 4 on “Custodial Interrogations” prescribes that “custodial interrogations of a suspect in a homicide case should be videotaped or digitally recorded whenever practicable.” (see Recommendation 12). It is particularly troublesome that the interrogations of Mr. Velez at the police station were not videotaped despite the fact that the police had the equipment to do so.
In addition, Chapter 6, “Reserving Capital Punishment for the Most Heinous Offenses and Most Culpable Offenders” is directly relevant to Mr. Velez’s case. In particular, “”the implementation of the Eighth Amendment’s ban on execution of individuals with intellectual disability should be improved”. (see Recommendation 20). Mr. Velez had the opportunity to have a second trial because after being sentenced to death a team of lawyers noticed his intellectual disability.
Chapter 7, “Ensuring Effective Counsel” is particularly relevant in Mr. Velez’s case. “Irreversible Error” recommends that “every jurisdiction that imposes capital punishment should create an independent authority to screen, appoint, train and supervise lawyers to represent defendants charged with a capital crime.” (see Recommendation 23). In addition, “counsel should be required to perform at the level of an attorney reasonably skilled in the specialized practice of capital representation, be zealously committed to the capital case and possess adequate time and resources to prepare.” (see Recommendation 25). As noted above, the lawyers representing Mr. Velez in his first trial, provided him with a very poor quality defense, falling below the minimum standard of professional competence in death penalty litigation.
Moreover, Chapter 9 of the report, “Role of Prosecutors”, establishes that “prosecutors should provide full discovery to the defense in death penalty cases, including all information and evidence relating to the subject matter of the offense charged, defenses or other issues in the case that are not protected by an established governmental or other testimonial privilege.” (see Recommendation 31). In Mr. Velez’s case there is no doubt about the prosecutors’ errors. They should have known the state expert testimony about Mr. Velez’s potential danger to society was false; However, they presented it anyway leading to imposition of death penalty.
The injustices suffered by Mr. Velez at the original trial, resulting in his prolonged imprisonment, did not end with this new opportunity to show his innocence. Faced with the daunting prospect of a new trial in which he had no guarantee of success, a plea to a lesser charged proved the only certain way he could get be released from prison. Given this Hobbesian choice, he elected freedom and plead “no contest” to a lesser charge of injury to a child.
Mr. Velez has been spared from execution and is now a free man. However, it is shocking that in the light of conclusive evidence of his innocence, he has left prison under parole and with a criminal record. The final outcome of this case is still plagued with irreversible errors and Mr. Velez continues to be a victim of the failures of the criminal system.