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

A sole-authored audit of Texas capital practice measured against the American Bar Association's Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report (2013), the twelfth in the ABA Death Penalty Due Process Review Project series. Metze walks all twelve ABA categories, identification and interrogation, biological evidence and DNA preservation, crime labs and medical examiners, prosecution, defense, direct appeal and proportionality, state habeas, clemency, capital jury instructions, judicial independence, race, and intellectual disability or mental illness, cataloging what Texas has done since 2013. He credits genuine structural reform: the Michael Morton Act's overhaul of Tex. Code Crim. Proc. art. 39.14, mandatory Brady training under Tex. Gov't Code §41.111, the 2013 and 2015 reconstitution of the Texas Forensic Science Commission (including removal of accreditation from DPS and licensure of forensic analysts by 2019), the Timothy Cole Exoneration Review Commission, the prosecutions of Ken Anderson and Charles Sebesta, and S.B. 1253's recording requirement. He treats other "improvements" as cosmetic or backsliding: the 2015 narrowing of art. 64.01 post-conviction DNA testing to evidence with a "reasonable likelihood of containing biological material," continued refusal of cross-racial identification jury instructions under Roberson v. State, untouched proportionality review, the surviving "10-2 lie," and the unconstrained role of Jurek-era special issues. The conclusion measures Texas's eight-to-nine annual death sentences as an equilibrium rather than abolition, locates remaining hope in Eighth Amendment doctrine, and after Justice Kennedy's anticipated departure declares "All hopes are gone." The subtitle "a Surprising Improvement" registers as irony, not endorsement.

If you litigated capital cases in Texas in 2013, the ABA handed you a 517-page benchmark. The Death Penalty Due Process Review Project had already audited eleven other death-penalty states (Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee, Virginia) against a checklist of best practices designed to ensure fair offender selection, reduce the risk of executing the innocent, and preserve public confidence. The Texas Capital Punishment Assessment Team, chaired by Professor Jennifer Laurin and including former Governor Mark White, scored Texas across twelve categories and made dozens of specific recommendations. Texas was in partial or non-compliance with most of them.

Professor Metze's article is the four-year retrospective. He marches through every category and asks: did Texas actually move? On several fronts the answer is yes, and he says so plainly. The Michael Morton Act rewrote art. 39.14 of the Code of Criminal Procedure into a real open-file discovery regime. The legislature created mandatory Brady training under Tex. Gov't Code §41.111 and reemphasized the prosecutor's ethical obligation under Tex. Disciplinary Rule 3.09(d). The Texas Forensic Science Commission was strengthened in 2013 and 2015, accreditation was pulled away from the Department of Public Safety, and forensic analysts must be licensed by January 1, 2019. The Timothy Cole Exoneration Review Commission delivered a December 2016 report whose interrogation-recording recommendations became S.B. 1253. Ken Anderson, the prosecutor who sent Michael Morton to prison, was prosecuted and lost his license; Charles Sebesta, who sent Anthony Graves to death row, was disbarred. Funding for the Regional Public Defender for Capital Cases, the Office of Capital and Forensic Writs, and the Texas Indigent Defense Commission survived and grew. Moore v. Texas forced the Court of Criminal Appeals to abandon the Briseno factors for intellectual disability.

He is just as direct about what did not move, or moved backwards. S.B. 487 (2015) narrowed art. 64.01 by requiring post-conviction DNA petitioners to show evidence "has a reasonable likelihood of containing biological material," cutting off a previously available route to innocence testing. Texas still refuses cross-racial identification jury instructions, with Roberson v. State, 852 S.W.2d 508 (Tex. Crim. App. 1993) blocking the model instruction the ABA recommended. Proportionality review in capital direct appeals remains essentially absent. The "10-2 lie" embedded in the capital special issues survived when H.B. 3054 died in the Senate. Medical examiner offices stayed outside FSC oversight, and the patchwork of justice-of-the-peace coroners persists. He flags the swelling DNA database under Tex. Gov't Code §411.1471 as a civil-liberties problem the ABA did not reach. He closes with prosecutorial discretion as the structural defect no reform has touched, quoting the Fair Punishment Project on the "personality and predilections of the local prosecutors entrusted with the power to seek the ultimate punishment." The article is useful as a current-as-of-2017 statute map and as a frank scorecard of what the ABA process can and cannot extract from a death-penalty state.

In 2013, the American Bar Association published a 517-page report assessing Texas's death penalty against the ABA Capital Punishment Assessment Project's protocols. The report found incremental improvements. Patrick Metze's 2017 Akron Law Review article is his section-by-section response, and he disagrees. Metze credits the few real reforms (the Michael Morton Act on Brady disclosure, the Timothy Cole Commission on wrongful convictions, the Forensic Science Commission reconstitution, Moore v. Texas on intellectual disability) but treats most of the rest as cosmetic. The wry title 'A Surprising Improvement' is sarcastic. For reporters covering Texas death-penalty reform, the ABA assessment project, or specific cases that turned on Brady violations, intellectual-disability claims, or eyewitness identification, Metze offers a counter-reading of the ABA's own findings from someone who spent his career defending the people the system kills.

In September 2013, the American Bar Association published a 517-page report on Texas's death penalty. The ABA had already done eleven of these for other states. A team of Texas lawyers, judges, professors, and a former governor scored the state against a checklist of fairness practices. They found Texas falling short in most of twelve categories: how police identify suspects and record interrogations, how DNA evidence is preserved, how crime labs are accredited, how prosecutors share evidence with the defense, how trial lawyers are funded, how appeals and habeas petitions work, how clemency operates, how juries are instructed, how race shapes outcomes, and how the system handles defendants with intellectual disabilities or mental illness.

Four years later, Professor Patrick Metze, who runs the criminal clinics at Texas Tech, sat down to ask whether Texas had actually changed. His answer surprised him. On several fronts, yes. Texas passed the Michael Morton Act, named for a man wrongly imprisoned for his wife's murder, which forces prosecutors to turn over evidence to the defense. The legislature made Brady training mandatory. The Texas Forensic Science Commission was rebuilt with real teeth, and forensic analysts must be licensed by 2019. The Timothy Cole Exoneration Review Commission, named for a man who died in prison for a rape he did not commit, produced reforms now becoming law, including required electronic recording of interrogations in serious felony cases. Two notorious prosecutors, Ken Anderson and Charles Sebesta, were actually punished, one criminally, both losing their law licenses. Funding for capital defense agencies grew.

But Professor Metze does not call this victory. The legislature also quietly tightened the rules for post-conviction DNA testing in 2015, making it harder for prisoners to prove innocence. Texas courts still refuse to instruct juries on the special unreliability of cross-racial eyewitness identifications. Proportionality review on direct appeal is essentially nonexistent. Capital juries are still told a lie about how their answers translate into a death sentence. Medical examiner oversight remains a patchwork. And the deepest problem, the unchecked discretion of locally elected district attorneys who run for office on death sentences, is exactly the same. Texas death sentences have fallen, but they have stabilized at about eight or nine a year, which he treats as an equilibrium rather than the beginning of abolition. The subtitle of the article, "a Surprising Improvement," is meant ironically. Texas improved, and it is still Texas.

In 2013, the American Bar Association, the most respectable lawyers' organization in the country, published a 517-page report assessing Texas's death penalty. They said things had improved. Professor Metze read every page and wrote this paper in response.

His response was, more or less: not really. He went through the ABA's report one section at a time, credited the few small things they identified as actual improvements, and called the rest cosmetic. The title of his article is dry: 'Dissecting the ABA Texas Capital Punishment Assessment Report of 2013: Death and Texas, a Surprising Improvement.' When a lawyer says something is surprising, that's usually code for 'I do not actually buy this.' Metze didn't buy it.