Dec. 5
TEXAS:
High court, 5th Circuit battling over death row----Cases can bounce back
and forth as judges butt heads
DEATH ROW PANELS
The U.S. 5th Circuit Court of Appeals most often decides cases in
three-judge panels. Here are the panels for Texas death row rulings that
conflicted with the Supreme Court's approach:
THOMAS MILLER-EL
Judges
Harold DeMoss Jr.
- Nominated by former President Bush, 1991
- Bush's former personal attorney in Houston
Edith Jones
- Nominated by President Reagan, 1985
- Former Houston lawyer and Texas Republican Party counsel
Robert Parker*
- Nominated by President Clinton, 1994; retired 2002; former U.S. district
judge in East Texas
* On reconsideration, W. Eugene Davis replaced Parker.
ROBERT TENNARD
Judges
Fortunato Benavides
- Nominated by President Clinton, 1994
- Former Texas Court of Criminal Appeals judge and state district court
judge in McAllen
Jerry Smith
- Nominated by President Reagan, 1987
- Former city attorney of Houston
James Dennis
- Nominated by President Clinton, 1995
- Former Louisiana Supreme Court justice
JOHNNY PAUL PENRY
Judges
W. Eugene Davis
- Nominated by President Reagan, 1983
- Former U.S. district judge in Louisiana
Emilio Garza
- Nominated by former President Bush, 1991
- Former U.S. district court judge in San Antonio
James Dennis
- See his information in Tennard's case.
(sources: Court and biographical records)
8 of the 9 U.S. Supreme Court justices decided last year that death row
inmate Thomas Miller-El, a black man from Dallas, showed ample evidence
that prosecutors deliberately excluded blacks from his 1986 jury.
The high court, annoyed that the 5th U.S. Circuit Court of Appeals in New
Orleans had ignored the evidence, sent the case back with orders to take a
second look. The lower court did. But it didn't change its mind.
So on Monday, in what has become a pattern of repeat trips to the Supreme
Court for Texas death cases, lawyers for Miller-El will ask the justices
to decide a different fundamental question: Is the 5th Circuit so
blatantly disobedient that it must be reined in -- again?
Whether the New Orleans-based federal appeals court is scorning Supreme
Court guidance or has a genuine philosophical disagreement, it's clear the
lower court is butting heads with the high court, Houston lawyer and
former Supreme Court clerk Brett Busby said.
"The majority of the Supreme Court seems to be increasingly trying to send
them a message that the law is contrary to the way they are portraying
it," he said.
The 5th Circuit is composed of 14 lifetime appointees of Republican
presidents Reagan, George H.W. Bush and the George W. Bush and 6
appointees of Democratic presidents Clinton and Carter. It is widely
considered 2 of the 2 most conservative circuit courts in the nation and
is known for its reluctance to side with criminal defendants, death row
inmates in particular.
The Supreme Court has indicated the 5th Circuit has gone too far, denying
defendants' constitutional rights. Although the high court accepts and
decides only a tiny fraction of the cases that are filed each term, it
nevertheless has taken three Texas death penalty cases at least twice. In
each, the high court repeatedly has warned the 5th Circuit about failing
to comply with its rulings.
Tennard's case
In the case of Robert Tennard, a Houston man who killed a neighbor, a
six-justice majority of the Supreme Court heaped shame on the 5th Circuit
in June. The court wrote that the 5th Circuit's test for deciding cases in
which the defendant has a low IQ has "no foundation in the decisions of
this court."
Last month, the court delivered the same message directly to the Texas
Court of Criminal Appeals, which used the same test to deny the appeal of
Dallas killer LaRoyce Smith without waiting for the high court's ruling in
the Tennard case.
In Smith's case, the Supreme Court justices, without scheduling arguments,
issued a 7-2 unsigned opinion urging the state court to pay attention and
stop relying on "a test we never countenanced and now have unequivocally
rejected."
The same day, the justices overturned, without comment, the death sentence
of Ted Calvin Cole, also known as Jalil Abdul-Kabir. It returned his case
to the 5th Circuit with instructions to reread the Tennard decision and
reconsider Cole's appeal.
Penry's case
Even before Tennard's case, Texas death row inmate Johnny Paul Penry's
case had been to the Supreme Court and back to the 5th Circuit several
times because of what the high court saw as the lower court's faulty
system of reviewing the evidence on defendants' low IQ and mental
retardation.
Death penalty system
The high court has since accepted several other Texas death penalty
appeals and has summarily thrown out lower-court decisions and sent the
cases back for more work.
"What is really happening is the death penalty system in Texas is close to
breaking, because the Supreme Court simply does not have the resources to
police every single death penalty case that comes up from Texas," said
David Dow, a professor at the University of Houston Law Center who
represents death row inmates.
"They have to be able to count on the 5th Circuit and the Texas Court of
Criminal Appeals to do their jobs," he added. "So far, they haven't been
able to do that."
Texas Attorney General Greg Abbott, whose staff represents the state in
death penalty appeals, declined through a spokesman to comment on the
Miller-El case or on the conflict between the Supreme Court and lower
appeals courts.
And, like most federal judges, those on the 5th Circuit do not discuss
their decisions with the media.
But Rob Kepple, executive director of the Texas District and County
Attorneys Association in Austin, defended the judges, saying Supreme Court
decisions "are very good at telling you you did it wrong" but are
"notoriously void of guidance on telling you how to do it right."
"It shouldn't be surprising to anybody that the courts are going to go
back and forth as (they) try to guess what the Supreme Court wants them to
do," he said.
Miller-El's case
In Miller-El's case, Jim Marcus of the Houston-based Texas Defender
Service and former Solicitor General Seth Waxman of Washington complained
in court briefs that despite "overwhelming evidence of racial
discrimination" and "strong indications that the state courts mishandled
that evidence," the 5th Circuit twice came to the identical conclusion
against their client.
"It did so largely by ignoring this court's direction," the lawyers wrote,
adding that the Supreme Court should send a clear message that this will
not be tolerated.
Miller-El's evidence included the fact that prosecutors asked different
questions of potential jurors based on their race, eliminated blacks who
gave similar answers or had similar backgrounds as whites who were seated
on the jury, and exercised their option to shuffle the seating order of
the jury pool when the front seats were occupied by blacks.
Perhaps most damning, though, was evidence of a history of discrimination
against minority potential jurors by the Dallas County District Attorney's
Office. Miller-El's lawyers produced the office's training manuals on jury
selection that in the 1960s read: "Do not take Jews, Negroes, Dagos,
Mexicans or a member of any minority race on a jury, no matter how rich or
how well educated." Later versions advised avoiding such jurors because
"minorities usually empathize with the accused."
Prosecutors in Miller-El's case used their jury pool strikes to eliminate
10 of the 11 blacks. The jury that convicted Miller-El and sent him to
death row for the 1985 shooting murder of Irving Holiday Inn clerk Doug
Walker included an African-American, a Hispanic and an Asian-American. The
nine other jurors were white.
Supreme Court Justice Anthony Kennedy, writing for the majority last year,
said Miller-El's evidence revealed a culture in the district attorney's
office that was "suffused with bias against African-Americans in jury
selection."
The lone dissenter
The 5th Circuit said it was merely deferring to the state trial court's
decision that Miller-El had not proved the bias. But Kennedy wrote that
showing deference "does not imply abandonment or abdication of judicial
review." His opinion laid out in detail the evidence the justices found to
be obvious.
Rather than following the majority's opinion, however, the 5th Circuit
relied on the reasoning of Justice Clarence Thomas, the high court's only
black member, who was the lone dissenter in the case. It lifted several
passages from his opinion, without attributing the wording to him, in its
latest decision in the case.
Texas Assistant Attorney General Gena Bunn wrote in her brief to the
Supreme Court that the 5th Circuit did follow the high court's lead in
re-evaluating that evidence. It simply came to the same conclusion as
before, that Miller-El failed to show that prosecutors struck the black
potential jurors because of their race rather than their views, she said.
The case is to be decided by next summer.
(source: Houston Chronicle)
****************************************
Supreme Court grows vexed with Texas death-penalty rulings
In the past year, the Supreme Court has heard 3 appeals from inmates on
death row in Texas. In each case, the prosecutors and the lower courts
sustained stinging reversals.
In a case to be argued on Monday, the nation's high court appears poised
to deliver another rebuke.
Lawyers for a Texas death-row inmate, Thomas Miller-El, will appear before
the justices for the 2nd time in 2 years. To legal experts, the Supreme
Court's decision to hear his case again is a sign of its growing
impatience with 2 of the courts that handle death penalty cases from
Texas: its highest criminal court, the Court of Criminal Appeals, and the
5th U.S. Circuit Court of Appeals, in New Orleans.
Perhaps as telling is the exasperated language in decisions this year from
a Supreme Court that includes no categorical opponent of the death
penalty. Justice Sandra Day O'Connor wrote in June that the 5th Circuit
was "paying lip service to principles" of appellate law in issuing death
penalty rulings with "no foundation in the decisions of this court."
In the Miller-El case, legal scholars are buzzing over what they say is
the insolence of the 5th Circuit.
In an 8-to-1 decision last year, the Supreme Court instructed the court to
rethink its "dismissive and strained interpretation" of the proof in the
case and to consider more seriously the substantial evidence suggesting
that prosecutors had systematically excluded blacks from Miller-El's jury.
Prosecutors used peremptory strikes to eliminate 10 of 11 eligible black
jurors and twice used a local procedure called a jury shuffle to move
blacks lower on the list of potential jurors, the decision said. The jury
ultimately selected, which had one black member, convicted Miller-El, a
black man, of killing a clerk at a Holiday Inn in Dallas in 1985.
Almost verbatim
Instead of considering much of the evidence recited by the Supreme Court
majority, the appeals court engaged in something akin to plagiarism. In
February, it again rejected Miller-El's claims, in a decision that
reproduced, virtually verbatim and without attribution, several paragraphs
from the sole dissenting opinion in last year's Supreme Court decision,
written by Justice Clarence Thomas.
"The 5th Circuit just went out of its way to defy the Supreme Court on
this," said John Gibbons, a former chief judge of the U.S. Court of
Appeals for the 3rd Circuit, in Philadelphia, who joined a brief
supporting Miller-El.
"The idea that the system can tolerate open defiance by an inferior court
just cannot stand."
The Supreme Court agrees to hear only about 80 cases each year, and it
seldom accepts cases to correct errors in the lower courts. But in recent
years, the court has often found itself fixing problems in specific Texas
death penalty cases. Over the last decade, it has ruled against
prosecutors in all 6 appeals brought by inmates on death row in Texas.
The cases all involved challenges to the fairness of the procedures used
to convict the defendants rather than arguments about their innocence.
Few reversals
The 2 appeals courts handle an enormous number of capital cases and grant
relief in very few. Between 1995 and 2000, the Court of Criminal Appeals
heard direct appeals in 270 death sentences and reversed 8 times. The
reversal rate -- 3 % -- is the lowest of any state. Texas has executed 336
people since 1976.
The 5th Circuit also reviews Texas death sentences when inmates file writs
of habeas corpus -- challenges to unlawful detentions. The court has 50 or
60 capital cases pending at any given time. But in recent years it has
very seldom ruled in favor of prisoners on death row.
The 2 courts have been resistant to claims involving withheld evidence,
lies told by prosecutors and problems in jury selection, as in the
Miller-El case. But legal scholars say the most intractable issue involves
unusual instructions that were given to Texas juries from 1989 to 1991,
which allowed juries in essence to ignore their own findings if there was
sufficient mitigating evidence.
The U.S. Supreme Court ruled in 2001 that those instructions were
unconstitutional. Yet the 2 appeals courts continued to uphold the death
sentences that resulted from the instructions. Since 1991, more than 40 of
the people in those cases have been executed.
(source: New York Times)
*********************
Texas punishes another inmate in a cruel, unusual manner
Imagine that you are Frances Newton.
You're black, you're 39 years old, and you're one of nine women on death
row in Texas. You've been in prison since April 1987, when your husband,
Adrian, your 7-year-old son, Alton, and your baby daughter, Farrah, were
murdered in Houston.
Prosecutors say you killed your family to collect $100,000 in insurance.
You say you're innocent.
It's Wednesday, the day you're scheduled to die. You're placed in a cell
adjacent to the death chamber in Huntsville, a cell smaller than the
infamous cells in Abu Ghraib Prison in Iraq.
You're stripped naked and searched, presumably to make sure you don't kill
yourself before Texas does.
There's nothing to do but wait for a life-or-death telephone call. If the
call doesn't come, you're going to be strapped down on a gurney, $87 worth
of lethal drugs will be pumped into your veins, and you'll be dead in less
than 10 minutes.
This will happen even though the U.S. Supreme Court has continually
rebuked the state of Texas for the unjust way it manages capital
punishment.
Make no mistake: There's nothing fair about the way the death penalty is
administered in Texas. Two years ago, in an appeal of a Texas case, the
U.S. Supreme Court banned executions of the mentally retarded. Recently,
the Supreme Court took a Texas court to task in a death penalty case for
ignoring proper jury instructions.
In Texas, at least four inmates have been executed after lawyers failed to
file federal appeals in time. We lead the country in executions and have
no public defenders for capital appeals.
The Houston Police Department's crime lab is so unreliable that Houston
Police Chief Harold Hutt has called for a moratorium on all executions
from Houston.
You're Frances Newton. You're from Houston, and there is no moratorium on
the death penalty.
Hours pass. You tap your foot, waiting on a telephone call from Gov. Rick
Perry. You have little hope. Last May, the six-member Texas Board of
Pardons and Paroles recommended that the life of a mentally ill man
convicted of murder be spared. Perry said no, and the inmate was executed.
Heaven knows, there are no wussies on the Texas Board of Pardons and
Paroles. Usually, the board just rubber-stamps the rejections of requests
by condemned inmates.
But, lo and behold, the board voted Tuesday 5-1 to stop your execution and
allow new tests on key evidence in your case.
Will Perry say no to you as well?
You pass the time thinking about what you'll write in your final
statement. Two hours before you are scheduled to die, the telephone rings.
Miracle of miracles, Perry agrees with the parole board, even though the
governor says in a statement: "I see no evidence of innocence."
You have four more months to live. Do you feel relieved or just exhausted?
You go back to your cell.
An hour later, at 7 p.m., you tell yourself: "60 minutes have passed since
I was supposed to die, but I'm still alive."
So here's the bottom line: If you're Newton, how could you believe that
the Texas death penalty is anything other than cruel and unusual? If
you're not Newton, how can you let the state of Texas apply the death
penalty in such an unfair way in your name with your tax dollars?
An hour after Newton was scheduled to die, Sister Helen Prejean, the
Catholic nun whose book "Dead Man Walking" helped spark a national
campaign for a moratorium on the death penalty, spoke to a crowd at Travis
Park United Methodist Church in San Antonio.
She commended Perry for staying Newton's execution but said the entire
process of waiting for the reprieve is inhumane in itself.
"More and more, Texas is standing out as a killing field, even as the rest
of the country quietly puts away the machinery of death," she said.
Sister Helen is correct. Last year, the outgoing governor of Illinois
cleared out the nation's eighth-biggest death row. In June, New York's
highest court threw out the state's death-penalty laws. In the past few
years, dozens of inmates have been released from death rows after being
exonerated.
Will Newton be one of them? She has 4 months to make her case. If she
doesn't, the process of waiting for the telephone call will begin all
over.
(source : San Antonio Express-News)
***********************************
Slaying victims linked to 1 club--In Killeen, investigators suspect 2 men
had list of 12 to shoot to death
Diana Denson huddled with her tearful, terrified friends. Bodyguards
surrounded them in a living room that had become a secret hideout. Ms.
Denson, a dark-haired exotic dancer, feared she was next. She believed she
was on the killers' hit list.
Throughout that nervous Sunday night, cellphones rang incessantly as
police, employees and a cadre of security staff tracked down everyone who
might be in danger from what police say was a plot to kill a dozen club
employees. Manager Scott Davis had closed the club early and gathered them
at his home, where he hoped they would be safe.
"We pulled in people from everywhere and locked that place down," Mr.
Davis recalled. "And every time I talked to a girl, I had to tell her that
her friends were dead."
2 men already were under arrest, but employees were unsure at that time if
others were involved.
Angel Davis, a baby-faced dancer at the club and Mr. Davis' wife, made
sandwiches in the kitchen and tried not to break down.
"My mom died when I was 9," she recalled later. "So I kind of know the
tricks of the trade on how to handle this kind of thing."
Tiffany and Zoe
Meanwhile, Richard "Blue" Tabler, 25, and Timothy Payne, 18, a private at
nearby Fort Hood, were confessing to what Bell County Sheriff Dan Smith
would call a "sinister and gruesome plot" to kill Teazers employees who
had "wronged him [Mr. Tabler] in some way."
Tiffany Dotson, an outspoken 18-year-old blond dancer from California, was
dead. So was a "Zoe," a Louisiana coast native with red hair and emerald
green eyes. And so was Mohamed Amine Rahmouni, the boisterous and popular
Moroccan bar manager, and his friend, Haitham Zayed, a bystander probably
in the wrong place at the wrong time.
The 2 men were killed the night after Thanksgiving, shot as they stood
outside their car on a dark section of Old Copperas Cove Road a few miles
from the bar.
The 2 women died on Sunday evening the same way - shot on a remote road
near a state park outside Killeen. They were in the black Jeep Wrangler
that Zoe had borrowed from her boyfriend. They had been on their way to
perform at a strip club in Austin.
By Tuesday, Mr. Tabler and Pfc. Payne had been charged with capital murder
and were being held at the Bell County Jail in lieu of $4 million bail
each.
If convicted, they could get up to life in prison or the death penalty.
It wasn't until Friday that either of the accused was assigned an
attorney. A request to interview Mr. Tabler in jail was unanswered. A
woman who came to the door of his house in Killeen declined to comment.
Fort Hood officials declined to comment on Pfc. Payne's involvement. They
said he'd come from Missouri and had been an assigned to the 4th Infantry
Division for less than a month.
Mr. Tabler, a self-proclaimed gang member with a tattoo on his head and a
low-rider pickup, was the alleged mastermind.
The employees of Teazers had reason to believe Mr. Tabler was involved.
But they were shocked to hear that Pfc. Payne, a regular customer they
described as a well-mannered "nice guy," had confessed that his role was
to videotape each slaying.
"Blue would throw off this attitude, acting all hard, but Tim was never
like that," said a 22-year-old dancer who calls herself Sadie. She, like
several other dancers, asked that their stage names be used in this story,
because they still fear for their safety.
Swagger
Mr. Tabler was a swaggering character and a club regular until he fell out
of favor with the staff and was banned.
Several of the dancers, including those killed, had spurned his advances
many times. Bar managers, including one of the dead, had derided Mr.
Tabler for lying to people that he was a club employee.
Ms. Denson said she got physically ill when Mr. Tabler said he loved her.
She was startled by his marriage proposal. The 2 had never dated, and she
wanted nothing to do with him.
The last time Ms. Denson saw Mr. Tabler was 2 days before Thanksgiving.
She woke to find him in her house, standing over her bed and staring down
at her. She asked how he got in and what he was doing there. He said he
was leaving for Iraq.
"He said, 'I just wanted to see you one more time before I go,'" she
recalled.
She wrote it off as another ploy for attention; he wasn't even in the
military.
Mr. Tabler, a tall, wiry 25-year-old, came to Killeen from Los Angeles a
few months ago to live with his mother and sister in a quiet neighborhood
a mile from the club. He slept on his mother's bedroom floor, or with a
girlfriend, or in the occasional motel room, according to the dancers.
He revved the engine on his metallic blue truck to impress the girl across
the street. He kept tabs on the dancers at Teazers ? who had boyfriends,
who didn't. Even after he was banned from the club, he hung out with
dancers and their mutual friends.
Several of the dancers said that, although he had never threatened anyone
with violence, he gave them "the creeps" when he talked about his guns or
lied that he was active-duty military or an operative with the CIA.
Club staff members said Mr. Tabler often bragged that he worked at Teazers
as security or a manager. They insist he was lying. He told police that he
arranged drug deals for club managers and found buyers for stolen
property. After a fire at a club next door, he was quoted in the local
paper as an employee.
"He was living in a world that was totally his own making," Mr. Davis
said. "He's completely deluded."
Were drugs involved?
After his arrest, Mr. Tabler told police he had lured the 2 men to their
deaths under the guise of selling Mr. Rahmouni stolen goods. The Morrocan
manager was on the list, he told police, because he had threatened to
"kill him [Mr. Tabler] and his family for as little as $10," Sheriff Smith
said.
Mr. Tabler claimed he reeled the women in by promising to sell them crack.
Police said Ms. Dotson might have been targeted because she was pointing
to Mr. Tabler as a suspect in the first two killings. She also was Mr.
Tabler's favorite dancer and had rejected his advances several times.
Bar managers and dancers adamantly deny that Ms. Dotson or the other
workers were involved in drugs or stolen goods. According to Killeen
police records, there have been no narcotics-related incidents in more
than a year at the address Teazers shares with 3 other bars at the end of
the main drag on the south edge of town.
They also don't believe that Mr. Rahmouni threatened Mr. Tabler's family
or that Ms. Dotson would have gone willingly with Mr. Tabler. Managers had
warned the women to stay away from him because they didn't trust him, Mr.
Davis said.
Close contact
Police have released few details about the arrests, the suspects'
backgrounds or their movements in the days leading up to the killings.
But club staffers say that Mr. Tabler was in close contact with them just
before and throughout the holiday, even after the slayings. began.
A few days before Thanksgiving, around the time he showed up standing over
Ms. Denson's bed, Mr. Tabler called Ms. Dotson to say he was leaving for
Iraq and wanted to say goodbye, according to her best friend, a fellow
dancer who goes by the name Saphire. Ms. Dotson refused to see him.
On Saturday, after learning the two men had been killed the night before,
Sadie said she told Mr. Tabler about Mr. Rahmouni's death. She and several
other dancers said he remarked that he'd like to "shake the hand of
whoever had killed Amine" Rahmouni.
"He showed up at my door on Saturday and asked for a friend of mine," she
said. "He said, 'I can't sit in one place for too long, tell him to call
me,' and he left."
That night, several dancers said, Mr. Tabler spent the night with a
girlfriend, while Pfc. Payne and a friend hung out with them and drank
beer.
Possibly 16 years old
One of the victims, Zoe, was a single mother whose children live with
their father. She was staying with a couple she called her aunt and uncle,
although they were no relation.
Bar employees said they believed she was 24 years old, a Southerner with
family in New Orleans and Gulfport, Miss. But police said she was 16 and
have refused to release her name because of her age.
The dancers are hoping to raise enough money to give her a proper burial.
"A lot of people care a lot about her," Sadie said.
Ms. Dotson had moved from California with a friend's family a few months
ago. They had come to Killeen "so they could be safer," Mr. Davis said.
Her friends describe her as an honest and forthright person, cheerful and
generous and full of life.
"She was a good person. She always made people laugh," said 19-year-old
"S." "She always told the truth. She was always happy."
In the aftermath of the tragedy, just a week after the deaths of their
friends, several dancers are still staying with Mr. Davis and his wife.
Saphire is inconsolable, crying whenever she talks about her best friend.
Ms. Denson has quit the club. Sadie hasn't gone back to work yet and
doesn't know when she will.
"I'm not ready," she said.
Angel Davis, assuming her role as house matriarch, has tried to be strong
for her friends and the club.
On Monday, 24 hours after the 2 dancers were slain - and with Saphire and
Sadie still at her house - Angel trudged back to work because she knew the
club would need her.
She slipped on her white sequin dress and went on stage. She could feel a
thick sadness in the smoky air. It slowed her down as she moved.
"I felt like I was swimming," she said. "Like I was wading through an
emotional pool."
When the performance was over, the hard-earned "tricks of the trade" that
had protected her emotions during the nightmarish weekend, failed.
Angel left the stage in tears.
(source: The Dallas Morning News)
*************************
DEFENSE TO ARGUE CASE FOR LIFE TERM
Convicted killer Rickey Lynn Lewis will be back in a Smith County
courtroom Monday when his attorneys will try to prove claims he is
mentally retarded and therefore should not be put to death for capital
murder.
Lewis was convicted and twice sentenced to die for the Sept. 17, 1990,
shooting death of George Newman during a burglary. Newman's common-law
wife, Connie Hilton, was sexually assaulted, but survived the incident.
Lewis entered the home with several others who also allegedly killed the
couple's dog, but he is believed to have committed the rape and murder,
according to Ms. Hilton's testimony.
Lewis' evidentiary hearing is scheduled Monday in 114th District Judge
Cynthia Kent's courtroom.
In a mental retardation claim, the burden of proof is on the defense since
the state has already proven its case in the guilt/innocence phase. If the
defense proves Lewis is mentally retarded, his death sentence will be
commuted to life in prison.
During his August evidentiary hearing, Lewis' attorney, Mike Charlton of
Taos, N.M., argued that Judge Kent's ruling to disallow funds for Lewis'
second writ of habeas corpus unfairly limited the defense's ability to
research and build a case. The 3-prong approach to diagnosing mental
retardation outlined in the Health and Safety Code includes below-average
intellectual functioning usually denoted by an IQ score of 70 or less,
manifestation of the disorder by age 18 and consideration of adaptive
functioning, or how a person operates in daily life.
While Lewis as a child attended Tyler's St. Louis School, a facility
geared toward children with special needs, the defense argued costly
testing and field investigations were necessary to prove mental
retardation.
The judge ruled previously that the county would not pay for another writ
of habeas corpus proceeding for Lewis who had exhausted his appeals prior
to the U.S. Supreme Court's June 2002 ruling that executing the mentally
retarded was unconstitutionally cruel. Lewis filed a 2nd writ of habeas
corpus claiming he was mentally retarded and received a stay from the
Texas Court of Criminal Appeals that halted his August 2003 execution.
The same court later reviewed Judge Kent's ruling on funding the 2nd writ.
It also denied Lewis' request, but failed to give a reason.
In August, Judge Kent authorized $25,000 for the defense to perform the
necessary testing and field investigations to present a case.
Smith County Assistant District Attorney Michael West argued that Lewis'
attorneys had 2 previous opportunities to present evidence of mental
retardation in the punishment phases of each of his trials and never did
so.
The punishment phase in the 1st trial was overturned due to a judicial
error. West said neither was a mental retardation claim raised in Lewis'
1st writ of habeas corpus, which was also funded.
(source: Tyler Morning Telegraph)
****************************
There are things worse than death
Like what?
(Well, maybe death without salvation, but let's save that for another
day.)
Nothing stokes the flames of passionate outrage and keeps the ol'
e-mailbox fat and full like a column dealing with capital punishment that
ends with a twist of smart-aleck sarcasm.
Such was my topic and tone 2 weeks ago in this space, when I suggested the
first Outback killer was lucky he got off with a life sentence instead of
the death penalty, and that if ever there was a case in bloodthirsty Texas
where capital punishment would have obvious application, a lot of folks
thought this would be it.
But the trial of the triple murderer was not held here in Bowie County,
where the crime was committed, and the verdict did not follow a
predictable path. Likewise, outside my expansive fan base-an adoring mob
that hangs recklessly on my every word-my column was greeted with
incredulity and ridicule in some corners.
These dispatches were so personally painful and pointed that I deleted
most of them after the first read. But after agonizing pointlessly over
the insults, I decided maybe I should publish some excerpts from the
remaining letters as counterbalance.
So, in the interest of fairness, and since presumably I've already had my
say, I provide these nuanced observations without comment or quip, and you
should only imagine me biting my tongue instead of putting it in my cheek,
because it would be unsportsmanlike for me to do either.
The latest came from a person who describes himself as a member of the
Texas Inmate Families Association:
I was very surprised that Les Minor would even take the time to write
about a jury's verdict, since he obviously doesn't value his liberty very
much. He scoffs at a minimum 40 years in prison, which is tantamount to a
sentence to die in prison. The choice between life or death for Mr.
(Stephon) Walter is akin to giving a firing squad victim the choice
between 1 bullet or 2.
Moreover, Minor doesn't have much respect for the thinking of his peers,
i.e. the jury in this case ... If Minor wishes "we could all be so lucky"
... then maybe he'd like to trade shoes with Walter.
Finally, it is scary that the managing editor of a modern day newspaper
actually believes that retribution, rather than rehabilitation, can
properly be a jury's motivation in any case.
Okay, I lied. I can't let all this go without comment.
First, I never indicated a preference between retribution or
rehabilitation. Fact is, I didn't say a lot about my own beliefs. Second,
I never scoffed at 40 years. I did say it was better than death. But to
the suggestion that I'd like to trade shoes with Walter, I say only this:
I don't have to because I wasn't at the Outback when all the killing was
going on. But if I was, and I got off with just a life sentence, I'd be
very happy to be in those shoes. War is a horrible place for a soldier to
be; but if he has to be there, he would rather be there alive than dead.
Some people in this country, and all around the world, live in horrible,
tragic and demeaning situations, situations where they face death every
day. Yet most of them choose life over death for as long as they can.
Here are some more comments:
Your article was filled with blather that I found outrageous. Whatever
promoted you to describe life in prison in Texas as "copping a big break?"
The idyllic life you seem to feel Mr. Walter will lead is a product of
your total ignorance of the reality of Texas prisons. Persons who are
informed know that prison conditions are austere at best, with inadequate
and frequently unpalatable food as well as deplorably inadequate health
care ... Rehabilitation opportunities in Texas are quite minimal, largely
due to the same budget restraints that lead to food and health care
deficiencies ...
Because of the uninformed attitudes of people like yourself, Texas
legislators are not motivated to clean up our prisons so that they will be
correction facilities rather than merely dispensers of retribution.
And some more:
It is sad to see reports from uneducated reporters like yourself. You must
visit a prison before you write about the subject ... It is tragic that
Texans are still asking for the death penalty-Christians no less! These
Christians condone torture in their prisons every day. But if you are one
of these people who believe in punish, punish, punish, visit a prison.
You'll be very happy to see it's happening and you'll feel better when you
see how Mr. Walter will be living.
And another:
After reading your article ... I must say that I am very disappointed with
your very bias and partially hateful statements about this situation. You
further do not seem to be educated about or interested in the way things
really work in prisons. Your article lacks journalistic quality, integrity
and variety of viewpoints that I as a reader would like to occupy my mind
with. If you had ever witnessed an execution, you surely would not make
such sarcastic comments about that "needle."
And one was from a woman who says her brother was executed earlier this
year:
....You stated that we could all be so lucky to serve a life sentence in
the TDCJ. If you believe that to be true, then maybe we should put you
there for a few days to educate you on how ignorant that statement is ...
Recently an inmate hung himself ... cold hearted people like you would say
that only saves tax-payers money and the court system time for other
cases. You call such inmates monsters, but they are human and behind every
human is a mother, father, sibling and children who are being punished as
well. So you sit at your desk and type up your ignorant garbage about how
lucky one would be to have a life sentence in the TDCJ while inmates prove
you wrong by hanging themselves and dropping their appeals to be killed.
If you want a real story then I suggest you tag along with a family of an
inmate who is being executed and witness first hand what the TDCJ is
really like. Maybe then you'd have a little bit more credibility in your
future writings.
Journalists are always accused of taking information out of context; now I
know the feeling. I never suggested anywhere in the first column that life
in prison was easy. I'm sure it is very arduous and frightening. But,
guess what? You earn your way in.
I never said Walter was lucky to get a life sentence, except in the
context of the other option-death. But no matter how much you want to rant
about my ignorance-and I claim no moral or intellectual authority-I'll
still go to my grave believing Walter got off light and lucky.
And, you know what? No matter how horrible it is behind those walls, I bet
he thinks so, too.
(source: Les Minor, Managing Editor, Texarkana Gazette)
