Dissecting the ABA Texas Capital Punishment Assessment Report of 2013: Death and Texas, a Surprising Improvement

This article is Metze's four-year audit of the American Bar Association's 2013 Texas Capital Punishment Assessment Report, the twelfth in the ABA's state assessment series, and the working sequel to his own Death and Texas (2011), where he cataloged more than 140 ways a Texas killing could be charged as capital murder. The method is verification: he walks all twelve of the ABA's subject areas and its 93 recommendations, checking each against Texas statutes, pending bills, and case law through the 2017 legislative session. Some credit is genuine, and he gives it. The Michael Morton Act's rewrite of article 39.14 was, in his phrase, "a sea change" in Texas discovery; he pairs it with mandatory Brady training under Government Code section 41.111, the 2013 and 2015 reconstruction of the Forensic Science Commission (accreditation pulled from the Department of Public Safety, analyst licensing by 2019), and Moore v. Texas forcing current medical standards into intellectual disability determinations. Other movement he treats as cosmetic: the Office of Capital Writs gained the word forensic in its name while the habeas statute stayed restrictive, proportionality review remains absent, clemency is untouched, and a 2015 amendment actually narrowed post-conviction DNA testing. The contribution is a practitioner-scholar's ground truth on what an ABA assessment can extract from a death penalty state: real reform where innocence scandals had names, inertia wherever the machinery of death itself was at stake, and a closing forecast of equilibrium, eight or nine death sentences a year, rather than abolition.

If you handle capital cases in Texas, read this as a scorecard of what has changed under your feet since 2013 and what you still must litigate around. Discovery is the real gain. The Michael Morton Act's amendment of article 39.14, effective January 1, 2014, combined with mandatory disclosure training under Government Code section 41.111 and the ethical duty in Disciplinary Rule 3.09(d), gives you legislation, education, court oversight, and the grievance process all pulling in the same direction, and the Anderson and Sebesta cases show that prosecutors who hide evidence can now actually lose their licenses. Watch the 2017 session's additions too: electronic recording of custodial interrogations in serious felonies, tracking of benefits given to jailhouse informants, and confidence-level conditions on in-court identifications under H.B. 34. Then plan around what did not move. Roberson v. State still bars a cross-racial identification instruction. Article 37.071 still contains what Metze calls "the 10-2 lie," and H.B. 3054, which would have ended it, passed the House and died in the Senate. Chapter 64 DNA testing got harder in 2015; your client must now show a reasonable likelihood that the evidence contains biological material. The habeas statute is unchanged, and he calls the fairness of post-conviction relief in Texas nonexistent. Expect charging gamesmanship as well: cases filed as simple murder to delay appointment of a qualified capital trial team, and grand juries used to box in mitigation witnesses. His larger point is that unreviewable prosecutorial discretion, driven by electoral politics, survives every reform, so preserve those challenges and use Moore aggressively on intellectual disability.

In September 2013 the American Bar Association published a 517-page assessment of the Texas death penalty, its twelfth such state report. The ABA is about as establishment as American law gets, and its team included a former Texas governor, Mark White. One detail tells you how Texas received it: of the twenty-three district attorney offices sent surveys, two responded. Four years later the report got the reader it deserved. Patrick Metze is the Texas Tech law professor who had already counted 146 or more separate ways to commit capital murder in Texas and pronounced the statute unconstitutional. He read the whole thing against what the legislature and courts actually did afterward. The first surprise is that he concedes real movement. Texas passed the Michael Morton Act, forcing prosecutors to open their files. Ken Anderson, who hid evidence that sent Morton to prison, drew ten days in jail and lost his law license. Charles Sebesta, who sent an innocent man to death row, was disbarred. Texas rebuilt the forensic science commission with teeth, and an interrogation-recording bill went to the governor. The second surprise is how little of it touches the death machinery itself. Juries still get a misleading instruction about how their votes count, and the bill fixing it died in the Senate. DNA testing for prisoners got narrower in 2015. Texas executed Marvin Lee Wilson, whose IQ was 61, under a standard borrowed from a Steinbeck character. Metze frames the piece with Bob Dylan's What Good Am I? and, surveying the Supreme Court after Justice Kennedy's rumored retirement, writes: "All hopes are gone." The improvement in his title is real, and it is delivered deadpan.

When an official body announces that a system got better, somebody has to check the math, because the system we're talking about executes people in your name. In 2013 the American Bar Association scored Texas against 93 recommendations for a fair death penalty. Four years later Patrick Metze, who trains capital defense lawyers at Texas Tech, went item by item to see what Texas actually did. Some of it's real, and you should know it happened. Prosecutors now have to share their evidence with the defense, under a law named for Michael Morton, who spent 25 years in prison for a murder he didn't commit. Police have to record interrogations in serious felonies, a reform traced to Timothy Cole, who died in prison before DNA cleared him. Crime labs answer to a commission with real authority, and two prosecutors who buried evidence finally got punished. Notice something, though: every one of those fixes carries an exonerated man's name. Now the other column. Since 2015 it's harder, not easier, for a prisoner to get DNA testing that might prove innocence. Jurors deciding between life and death get a misleading story about how their votes count, and the law won't let anyone in the courtroom tell them the truth. Metze's blunt about it: "Texas must stop lying to juries." Clemency, the last mercy? Granted twice in the modern era. He also warns that the state's swelling DNA database is a privacy problem for all of us, not just prisoners. Texas has settled at roughly eight or nine new death sentences a year. Improved, and still Texas.

Here's how oversight actually works, and how it fails. In 2013 the American Bar Association studied the Texas death penalty for 517 pages and made 93 recommendations. Texas mostly didn't cooperate: surveys went out to twenty-three district attorney offices, and two answered. A report alone doesn't change much. What does change things, this article shows, is named scandals plus independent checkers. Texas reformed evidence sharing after Michael Morton spent 25 years in prison innocent, and interrogation recording after Timothy Cole died in prison innocent. Prosecutors only got punished once their misconduct went public and couldn't be denied. And the checking itself wasn't done by the institution being graded. It was done by a law professor with no stake in a flattering answer, who read every page four years later and compared it to the statute books. Wherever a reform would've shrunk the death penalty itself, like telling jurors the truth about their votes, the bill quietly died. Institutions grade themselves gently. Accountability is someone reading the whole report.