Dec. 9
TEXAS:
TEXAS COALITION TO ABOLISH THE DEATH PENALTY PRESS RELEASE
CONTACT:
Rick Halperin, President, TCADP
214-768-3284
[email protected]
www.tcadp.org
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AS WORLD MARKS INTERNATIONAL HUMAN RIGHTS DAY, TEXAS' DEATH PENALTY IS AN
'EMBARRASMENT BEYOND BELIEF AND BEYOND REPAIR,' TCADP SAYS
Dec. 9, 2004 - One day before the world marks International Human Rights
Day, the death penalty system in Texas continues to execute many more
people than any other state in the U.S. and operates on the very outer
bounds of legality, the Texas Coalition to Abolish the Death Penalty
warned Thursday.
Rick Halperin, TCADP president, said Texas has executed more than the next
5 highest-executing states combined: Texas has executed 336 since 1976,
while the next states - Virginia, Oklahoma, Missouri, Florida and Georgia
- have executed a combined total of 325 people.
At the same time, 8 people on Texas death row have been found to be
completely innocent of the crime for which they were convicted and walked
free from death row. And during this time, the U.S. Supreme Court
continued to rebuke the Texas Court of Criminal Appeals and Fifth Circuit
of the U.S. for repeatedly failing to follow Supreme Court edict in the
administration of the death penalty.
Already this year, the U.S. Supreme Court has reversed 2 death sentences
in Texas, including 1 summary reversal, and is expected to issue a
strongly worded opinion in the case of Thomas Miller-El, whose case was
heard earlier this week.
"Because of malignant indifference on the part of Texas officials, this
state's death penalty system is on the verge of collapsing under the
weight of its blunders, biases and bureaucracy," Halperin said. "The irony
here is that we may be headed toward a court-enforced moratorium - which
would at least temporarily save the lives of those on death row - because
of Texas' ignorance and incompetence. Our death penalty system is truly an
embarrassment beyond belief and beyond repair."
Halperin noted that Texas has the dubious distinction in leading the
nation in the number of people it has executed, the number of juvenile
offenders on death row and the number of juvenile offenders it has
executed. In addition, the state ranks 2nd in the overall number of people
on death row and 2nd in the number of women on death row.
(source: TCADP)
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Texas man executed on disproved forensics----Fire that killed his 3
children could have been accidental
Strapped to a gurney in Texas' death chamber earlier this year, just
moments from his execution for setting a fire that killed his 3 daughters,
Cameron Todd Willingham declared his innocence one last time.
"I am an innocent man, convicted of a crime I did not commit," Willingham
said angrily. "I have been persecuted for 12 years for something I did not
do."
While Texas authorities dismissed his protests, a Tribune investigation of
his case shows that Willingham was prosecuted and convicted based
primarily on arson theories that have since been repudiated by scientific
advances. According to 4 fire experts consulted by the Tribune, the
original investigation was flawed and it is even possible the fire was
accidental. Before Willingham died by lethal injection on Feb. 17, Texas
judges and Gov. Rick Perry turned aside a report from a prominent fire
scientist questioning the conviction.
The author of the report, Gerald Hurst, reviewed additional documents,
trial testimony and an hourlong videotape of the aftermath of the fire
scene at the Tribune's request last month. Three other fire
investigators--private consultants John Lentini and John DeHaan and
Louisiana fire chief Kendall Ryland--also examined the materials for the
newspaper.
"There's nothing to suggest to any reasonable arson investigator that this
was an arson fire," said Hurst, a Cambridge University-educated chemist
who has investigated scores of fires in his career. "It was just a fire."
Ryland, chief of the Effie Fire Department and a former fire instructor at
Louisiana State University, said that, in his workshop, he tried to
re-create the conditions the original fire investigators described.
When he could not, he said, it "made me sick to think this guy was
executed based on this investigation. ... They executed this guy and
they've just got no idea--at least not scientifically--if he set the fire,
or if the fire was even intentionally set."
Even Edward Cheever, one of the state deputy fire marshals who had
assisted in the original investigation of the 1991 fire, acknowledged that
Hurst's criticism was valid.
"At the time of the Corsicana fire, we were still testifying to things
that aren't accurate today," he said. "They were true then, but they
aren't now.
"Hurst," he added, "was pretty much right on. ... We know now not to make
those same assumptions."
A Tribune investigation of forensic science this year found that many of
the pillars of arson investigation that were commonly believed for many
years have been disproved by rigorous scientific scrutiny.
Willingham was charged after fire investigators concluded an accelerant
had been used to set 3 separate fires inside the wood-frame, one-story
home. Their findings were based on what they described as more than 20
indicators of arson.
Among them: "crazed glass," the intricate, weblike cracks through glass.
For years arson investigators believed it was a clear indication that an
accelerant had been used to fuel a fire that became exceedingly hot. Now,
analysts have established that it is created when hot glass is sprayed
with water, as when the fire is put out. It was just such evidence that
helped convict Willingham.
Just as Hurst and other consultants dismissed the "crazed glass," they
also said other so-called indicators--floor burn patterns and the charring
of wood under the aluminum threshold--were just as unreliable.
The experts said evidence indicated the fire had advanced to flashover, a
phenomenon that occurs when a fire gets so hot that gas builds up and
causes an explosion. After flashover, "it becomes impossible to visually
identify accelerant patterns," Hurst reported.
He also said the original finding that charring of wood was due to an
accelerant under the threshold "is clearly impossible. Liquid accelerants
can no more burn under an aluminum threshold than grease can burn in a
skillet, even with a loose-fitting lid."
Prosecutors, though, point to other evidence against Willingham presented
at his trial: a jailhouse informant who claimed Willingham confessed to
him and stands by his testimony, and witnesses who said Willingham did not
try hard enough to save his children.
Kathy Walt, a spokeswoman for the Texas governor, said Perry carefully
considered "all of the factors" in Willingham's case before deciding
against a stay.
Navarro County Judge John Jackson, who as the first assistant district
attorney prosecuted Willingham, said that while the experts' review raises
some "issues," he has no doubt that Willingham was guilty.
"Does it give me pause? No it does not. I have no reservations."
But some of the jurors who convicted Willingham and sentenced him to death
were troubled when shown or told of the new case review.
"Did anybody know about this prior to his execution?" Dorinda Brokofsky
asked. "Now I will have to live with this for the rest of my life. Maybe
this man was innocent."
A groundbreaking document in fire investigation, the National Fire
Protection Association's NFPA 921, was published on Feb. 10, 1992, less
than 2 months after the fatal fire at the Willingham house.
Filled with the new revelations about fire science, NFPA 921 was developed
by 30 fire experts, including Lentini and DeHaan, and was written as a
guideline for fire investigators. It is considered the standard on fire
investigation and is a key reference text for the Texas fire marshal's
office. Some investigators, however, have refused to acknowledge it,
preferring to stick to the old ways.
The scientific advances played a role in the exoneration of another Texas
Death Row inmate, Ernest Willis, earlier this year.
In Pecos County, in West Texas, District Atty. Ori White had to decide
whether to retry Willis, who had been convicted of setting a fire that
killed 2 women and had spent 17 years on death row. Willis had gotten a
new trial on unrelated legal issues in the case.
Before making his decision, White asked Hurst to review the fire evidence.
The prosecutor also asked Ryland to conduct an independent review.
Hurst concluded there was no evidence of arson, that the fire most likely
was accidental. Ryland concurred. White then dropped the case against
Willis and Willis walked free. It was the 12th time Hurst's work had led
to dismissal of charges or an acquittal.
Said White: "I don't turn killers loose. If Willis was guilty, I'd be
retrying him right now. And I'd use Hurst as my witness. He's a brilliant
scientist. If he says it was an arson fire, then it was. If he says it
wasn't, then it wasn't."
Hurst and Ryland said the 2 fires--the one that sent Willis to death row
and the one that sent Willingham to his execution--were nearly identical.
Of the 944 men and women executed since the U.S. Supreme Court reinstated
the death penalty in the mid-1970s, only one--Willingham--has been put to
death for a crime in which fire was the murder weapon.
The deadly fire
In 1991, 2 days before Christmas, Willingham's wife left the house in the
morning to pay the water and electric bills. Stacy Willingham then went to
a Salvation Army store to shop for Christmas gifts.
Cameron Todd Willingham, 23 at the time, told fire investigators he woke
up as his wife was leaving shortly after 9 a.m., and heard their
1-year-old twins, Karmon and Kameron, crying. He gave them bottles, laid
them on the floor, and put up a childproof gate at the door to their
bedroom.
2-year-old Amber was still asleep in the same room. Willingham said that
he went back to his bedroom across the hall and fell back to sleep.
According to police reports and interviews with family members, the couple
struggled. Stacy worked at a bar called Some Other Place, in nearby
Mustang, while Todd, as everybody called him, was staying home with the
girls after being laid off weeks earlier.
They lived on the south side of Corsicana, a town of some 24,000 people an
hour south of Dallas. The Willingham family was two months behind on the
rent and in arrears on their other bills, some of which they had stopped
paying to save money for Christmas.
They didn't have a stove; they had managed with a two-burner hot plate, a
microwave that, Willingham said, frequently "popped" while in use, and a
countertop deep-fat fryer.
Todd and Stacy fought often, and he sometimes left home. He enjoyed
drinking beer and throwing darts; in fact, those hobbies would be singled
out as his motive for the crime.
Willingham also had been in trouble with the law. A 10th-grade dropout
from Ardmore, Okla., he had sniffed glue and paint, and he had committed a
string of crimes, including burglary, grand larceny and car theft.
Willingham told investigators that he was awakened about an hour after his
wife left by Amber's cries of "Daddy, Daddy."
The house, he said, was so full of smoke that he could not see the doorway
leading out of the bedroom. Crouching low, he went into the hall. He said
he saw that there was not much smoke in the kitchen but "couldn't see
anything but black" toward the front of the house.
With the electrical circuits popping, Willingham said he made his way to
the girls' bedroom. He saw an orange glow on the ceiling, but little else
because the smoke was so heavy. He said he stood up to step over the
childproof gate, and his hair caught fire.
He crouched back down, he told investigators, and felt along the floor for
the twins but could not find them. He said he called out for Amber and
felt on top of her bed, but she was not there.
When debris began to fall from the ceiling, burning his shoulder, he said
he fled through the hall and out the front door.
He tried to go back into the house, he said, but it was too hot. He saw n
eighbors and told them to call the Fire Department, screaming, "My babies
is in there and I can't get them out."
Neighbor Mary Barbee told police she saw Willingham in the front yard and
she ran to ask a neighbor to call for help because her telephone was
disconnected.
Meanwhile, Willingham told investigators, he took a pool cue and knocked
out two windows overlooking the front porch to try to get into the
bedroom.
Barbee said that when she returned, Willingham was standing by a
chain-link fence as heavy smoke billowed from the house. Just as she
neared his yard, "large fire suddenly bellowed out from around the front
of the house," she told investigators, then the windows blew out.
She said that was when Willingham rushed to his garage and pushed his car
away from the fire scene.
At that moment, Burvin Smith arrived after hearing the fire call over a
radio scanner. Smith told police that Willingham was yelling that his
"babies were in the house" and "acting real hysterical."
He said he restrained Willingham from going onto the porch.
Willingham became a suspect almost immediately, when neighbors such as
Barbee told investigators they didn't believe he tried hard enough to
rescue his children.
Firefighters thought Willingham's burns would have been worse if he had
searched for the girls as he said he did. Though he had been burned on his
shoulder and back and his hair had been singed, they noted that his feet,
which had been bare, were not burned on the bottom.
The day after the fire, police said, Willingham complained that he could
not find a dartboard as he walked through the wreckage. Neighbors said
they heard loud music coming from the truck of a friend who came to help
salvage belongings.
11 days after the fire, a police chaplain who had responded to the blaze
said he had grown suspicious that Willingham's emotions were not genuine.
"It seemed to me that Cameron was too distraught," said the chaplain,
George Monaghan.
Fire investigators, meanwhile, were concluding that the fire had been
purposely set.
On Jan. 8, 1992, 2 weeks after the fire, Willingham was charged with
murder. Patrick Batchelor, then the district attorney, told reporters
Willingham set the fire because he wanted more time for beer-drinking and
dart throwing. The children got in the way.
Inmate, experts testify
Willingham went to trial in August 1992, eight months after the fire.
Batchelor and first assistant John Jackson offered a deal--a life term in
exchange for a guilty plea. But Willingham turned it down, insisting he
was innocent.
Prosecutors presented as their first witness jail inmate Johnny E. Webb, a
drug addict who said he took psychiatric medication for post-traumatic
stress syndrome, the result of being raped behind bars.
Webb testified that Willingham, after repeatedly denying he had caused the
fire, confessed to Webb one day as they spoke through a chuckhole in a
steel door at the county jail.
Webb said Willingham told him he set the fire to cover up his wife's
physical abuse of one of the girls. The girls, however, had no injuries
other than those suffered in the fire.
"I don't know if that dude did that crime or not," Webb said in a prison
interview. "I know what he told me."
The prosecution's case also relied on the neighbors who said Willingham
could have done more to save his family and two fire investigators,
assistant Corsicana fire chief Doug Fogg and deputy state fire marshal
Manuel Vasquez, who testified that the fire was arson.
The Texas state fire marshal's office declined to comment for this
article. Vasquez, who led the fire investigation, died in 1994.
Fogg, in an interview at his home in upstate New York, stood by his
investigation.
"Fire talks to you. The structure talks to you," he said. "You call that
years of experience. You don't just pick that knowledge up overnight."
He said he first eliminated accidental causes, including electrical
malfunctions-- though his report noted possible shorts in 2 places in the
house.
More than a dozen samples of debris from around the house were tested for
accelerants, and one sample, at the front door, tested positive for a
byproduct of charcoal lighter fluid. Fogg determined the fire was
intentionally started near the front door. Vasquez testified that there
were three points of origin.
Fogg then called the state fire marshal's office, which helps small
departments investigate fires. Vasquez, who was assigned the
investigation, concluded that the fire was arson as well.
At trial, both he and Fogg testified to assumptions about fire that no
longer hold.
"The fire tells a story," Vasquez testified. "I am just the interpreter. I
am looking at the fire, and I am interpreting the fire. That is what I
know. That is what I do best. And the fire does not lie. It tells me the
truth."
Vasquez testified that of the 1,200 to 1,500 fires he had investigated,
nearly all had been arson, and he had never been wrong.
All four consultants said Vasquez made serious errors in his testimony.
For example, when he said an accelerant must have been used to set the
fire because wood could not burn hot enough to melt an aluminum threshold,
he was wrong. It can.
"The fire investigators ruled the fire to be incendiary because it failed
to live up to their expectations of what an accidental fire should look
like," said Lentini, a former Georgia crime lab analyst who has testified
for prosecutors and the defense in arson trials.
"They used rules of thumb that have since been shown to be false. There
was no evidence to support a conclusion that the fire was intentionally
set. Just an unsupported opinion."
The experts said that finding evidence of the charcoal lighter fluid was
not as ominous as Fogg and Vasquez suggested. They noted that the
firefighters found melted remains of a plastic container of lighter fluid
on the front porch, and that it was possible firefighters' hoses propelled
the fluid under the threshold as they extinguished the fire.
And all 4 experts were incredulous at 2 statements Vasquez made: that he
had never been wrong in his many years of fire investigation, and that
nearly every fire he had investigated he had determined was arson.
Figures from the Texas state fire marshal's office suggest that claim was
an exaggeration. Since 1990, the percentage of fires declared incendiary
has ranged from 41 % in 1998 to 60 % in 1991, when the Willingham fire
occurred.
The experts who reviewed the case didn't put any stock in the claims that
Willingham's behavior was damning. They say experience shows that there is
no way to predict how people will react in a fire or to the grief of
losing loved ones.
Prosecutors, though, often rely on such circumstantial evidence,
especially when children die in a fire and a parent survives. "When you
are building a case of arson on the attitude of the survivor, that's when
things can go really wrong, particularly if the victims are children,"
said DeHaan, a consultant based in California who testifies for both
prosecutors and defense lawyers.
Willingham did not testify in his defense. His lawyers feared that he
would not handle aggressive cross-examination very well and would not
present a good image for jurors.
"To me, he was not repentant," said Robert C. Dunn, one of Willingham's
trial lawyers. "He had this attitude and air about him that he was
wrongfully charged."
The jurors deliberated a little over an hour before finding Willingham
guilty. In interviews, they said there was never a question.
Laura Marx said she would have found Willingham guilty even without the
arson finding solely because he did not try to save his children.
Jurors deliberated only slightly longer in handing out the death penalty.
David Martin, the other trial attorney for Willingham, believed he was
guilty. "That crime scene was so replete with evidence of arson," he said.
"There was no other cause for the house catching on fire."
A final appeal
By January 2004, Willingham's appellate lawyer had all but given up hope.
Willingham was scheduled to be executed on Feb. 17, and Walter Reaves knew
that in Texas, stays are rarely granted.
Then Pat Cox, one of Willingham's cousins, called Reaves.
Cox, a retired nurse who lives in Ardmore, Okla., had seen Gerald Hurst on
television and thought he could help save Willingham.
Hurst first went to court in 1972 as a prosecution witness in an Oklahoma
bombing case. For the next 20 years, his work was primarily in civil
lawsuits.
10 years ago, a Texas lawyer asked for his advice on an arson case, and
Hurst said he saw that "the level of expertise in criminal cases was far
below what I was used to seeing in civil cases."
Cox appealed to Hurst and he reviewed Vasquez's report at no cost. He
concluded it was riddled with "critical errors in interpreting the
evidence." But, he added, the mistakes were not malicious; they simply
reflected the state of fire science at the time.
He went on in the report to systematically dismiss all the indicators Fogg
and Vasquez cited as proof of arson.
For example, Vasquez's claim that "brown rings" found on the concrete
front porch were evidence of an accelerant was, Hurst wrote, "baseless
speculation ... when the puddles of fire-hose water evaporate, they often
leave brown material trapped in the surface."
Hurst ridiculed testimony that burn marks found under carpet tiles were
proof of an accelerant. "A liquid accelerant will not burn underneath a
tile on the floor any more than it will underneath an aluminum threshold,"
he wrote.
Vasquez testified that fire was started in three separate places, but
Hurst said that because flashover had occurred, "all the burn areas were
clearly contiguous. ... joined by obvious [heat] radiation."
According to Hurst's report, "most of the conclusions reached by the fire
marshal would be considered invalid in light of current knowledge."
Four days before the scheduled execution, Reaves attached Hurst's report
to a petition seeking relief from Texas' highest court, the Court of
Criminal Appeals, and from the governor.
"I didn't see any way the court was going to deny us a hearing on it,"
Reaves said. "No one could in good conscience go forward with that
evidence."
The response from local prosecutors included a two-paragraph affidavit
from Ronnie Kuykendall, the brother of Willingham's former wife. He said
that Stacy, who had divorced Willingham while he was on Death Row, had
recently visited him, then gathered the family to say that he had
confessed.
But she said in an interview that was untrue. At the time of the trial,
she said she had believed in her husband's innocence, but over the years,
after studying the evidence and the trial testimony, she became convinced
he was guilty.
In their final meeting, however, he did not confess, she told the Tribune.
Prosecutors also said the Hurst report, even if true, did not amount to
what the courts call newly discovered evidence. They said that
Willingham's attorneys should have been able to present the argument years
earlier.
The courts and Gov. Rick Perry declined to halt the execution.
'He knew it was too late'
On the day of Willingham's execution, his father and step-mother, Gene and
Eugenia Willingham, spent 4 hours with him, then said their goodbyes.
"He didn't want us worrying over him," his father said. "He said he'd be
OK."
Though their son had earlier found hope in Hurst's report, he was
realistic.
"He knew it was too late," Eugenia Willingham said. "He said, 'I'm
going.'"
At 6 p.m., Willingham was brought to the death chamber at the prison at
Huntsville. In a final statement, he avowed his innocence, said goodbye to
friends and hurled expletives at his former wife, who had come to witness
the execution.
That night, the Willinghams drove back home to Ardmore, Okla. Gene
Willingham said he did not want to be in Texas anymore.
"Texas says they don't kill innocent people," he said. "But they sure
killed an innocent person with him."
After the execution, Pat Cox, Willingham's cousin, said she got a call
from a lawyer in the governor's office. He told Cox what she already knew:
that Perry had refused to grant a stay.
Then, Cox said, "he gave everybody in the family his condolences."
(source: Chicago Tribune)
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One More Time for Miller-El
On Dec. 6, for the 2nd time in as many years, the U.S. Supreme Court heard
the appeal of Texas death row inmate Thomas Miller-El, who was convicted
of the 1985 murder of an Irving hotel clerk by a jury from which
prosecutors struck all but 1 black potential juror. At trial, Miller-El's
attorney asked the judge to strike the entire jury, arguing that Dallas
Co. prosecutors purposely excluded blacks from the jury pool with
peremptory challenges, asked different questions of potential jurors of
different races, and engaged in so-called "jury shuffling."
The trial court denied that request, saying there was no evidence that
"indicated a system of exclusion of blacks" from the pool. In 2001, the
U.S. 5th Circuit Court of Appeals agreed, ruling that prosecutors had not
engaged in "disparate questioning" of potential jurors, and that the
state's reasons for striking the minority jurors were "fully supported by
the record." Miller-El, the court concluded, "failed to present clear and
convincing evidence to the contrary."
In 2003 the Supremes disagreed, ruling in a detailed 28-page opinion that
there was indeed evidence that "the culture of the [Dallas DA's Office] in
the past was suffused with bias against African-Americans in jury
selection." Justice Clarence Thomas was the lone dissenter in the case,
opining that the 5th Circuit was correct and that his colleagues should
have presumed that the trial court's original finding was correct;
Miller-El's evidence of racial bias, Thomas wrote, was "entirely
circumstantial."
The Supremes punted the case back to the 5th Circuit, but after a cursory
review the appellate court again denied Miller-El's claims. So in June the
Supremes again agreed to review the case - a move that many court watchers
consider an outward sign of irritation with the 5th Circuit's
determination to flout the high court's wishes. The appeals court relied
not on the lengthy majority opinion but on Thomas' dissent, and on
portions of the state's brief, to make the determination that Miller-El's
appeal should again be denied. "It might be in my interest if people
followed dissents more often," Justice Stephen Breyer opined from the
bench. However, he noted, it's the majority opinion that counts. A
decision in the case is expected early next summer.
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Gov. OK's Death Row Reprieve
Breaking with his tradition of turning a blind eye to matters of justice,
Gov. Rick Perry on Dec. 2 accepted the 5-1 recommendation of the Board of
Pardons and Paroles and granted a 120-day reprieve to Frances Elaine
Newton. The stay, which came just two hours before Newton was to be
executed, will offer her defender, University of Houston Law Center
professor David Dow, a chance to have additional forensic testing
completed on evidence in her case - and perhaps to prove Newton is
actually innocent of the 1987 Houston murder for which she was condemned
to die.
Newton, 39, was convicted of killing her husband, Adrian, and her 2
children, Alton, 7, and Farrah Elaine, 21 months, in order to collect
$100,000 in life insurance. Newton has maintained her innocence and said
that she believed a drug dealer, known to her only as Charlie, actually
killed her family over money Adrian owed him. Gunshot residue tests
conducted on Newton's hands hours after the murder tested negative and no
blood stains were found on her clothing; however, testing found traces of
nitrate on a skirt Newton had been wearing, which prosecutors claimed was
gunshot residue. Newton's attorneys claim the nitrate was actually residue
from garden fertilizer.
The stay will also afford investigators a chance to reperform ballistics
tests on a .25-caliber pistol that Newton claimed she found inside her
house after the murders; the original ballistics tests were conducted by
the infamous Houston Police Department crime lab. According to a press
release from the governor's office, Perry granted the stay not because
court records suggested there was any "evidence of innocence," but rather
because there is now "new technology" available for gunshot residue
testing. Predictably, Harris Co. District Attorney Chuck Rosenthal was
righteous, telling reporters he was "disappointed" with the reprieve, but
certain the conviction would stand. It "doesn't make any difference to me
if she is executed today or in 120 days," he told The New York Times.
(source for both: Austin Chronicle)
*********************************
Chance to make right in death penalty case
In the mid-1980s, the Dallas County prosecution manual said that blacks,
women, Jews, fat people and bearded men were less likely than others to
sentence a convicted criminal to death.
That was apparently the mindset in a Texas courtroom in 1986, when
prosecutors excluded nearly every potential black candidate in the jury
pool that was to hear the case of a black man charged with murder. During
jury selection, prosecutors used cards that identified juror candidates by
race. They also distributed to blacks in the jury pool a graphic
description of how a sentence of death was carried out, but did not
provide the same gruesome details to whites and others. That was evidently
an attempt to ensure that blacks would say they would be less likely to
impose a death sentence - and would thus face exclusion from the jury.
Thomas Miller-El was found guilty of murder and sentenced to death by a
nearly all-white jury. Last year, the U.S. Supreme Court ruled 8-1 that
the evidence overwhelmingly indicated that potential jurors had been
excluded on the basis of race. The high court had agreed to hear
Miller-El's case just days before he was to be put to death. The Supreme
Court sent the case back to the U.S. Court of Appeals for the 5th Circuit
in New Orleans, telling the lower court to take a second look. But the
appeals court instead simply reinstated its earlier ruling, essentially
ignoring the Supreme Court's decision.
On Monday, the Miller-El case was back before the Supreme Court. The same
lawyers presented their arguments to the same justices - save for Chief
Justice William H. Rehnquist, who has been absent while receiving
treatment for thyroid cancer. The justices were understandably not pleased
to be going over the same ground, and appeared to indicate that they will
take a firmer stand this time.
There seems to be little doubt that Miller-El was guilty of the crime with
which he was charged. But there seems to be equally little doubt that
prosecutors stacked the deck against him so that a nearly all-white jury
would not only find him guilty, but would also sentence him to death.
The Supreme Court of late has been growing increasingly impatient with
Texas courts' decisions regarding the imposition of death sentences.
With this case, there is every reason to believe that trend will continue,
as it should.
(source: Editorial, (Mass.) Republican)
********************
DOCTORS DISAGREE IN LEWIS HEARING
Doctors who testified for the state and defense Wednesday disagreed on
whether Rickey Lynn Lewis is mentally retarded and should be executed for
capital murder.
If the 42-year-old is found to be mentally retarded, his death sentence
will be commuted to life in prison.
Lewis was convicted and twice sentenced to die for the Sept. 17, 1990,
shooting death of George Newman during a burglary. He was also found
guilty of sexually assaulting the victim's common-law wife, Connie Hilton.
Dr. Richard Garnett, licensed counselor and mental retardation expert
hired by the defense, testified for nearly 2 days and said he believed the
defendant is mentally retarded.
The three-pronged 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.
Garnett said once a person is diagnosed with mental retardation they are
always mentally retarded. He said mental retardation can be developed by a
normally born child because of a variety of circumstances and that the
clinical diagnosis of mental retardation is a subjective determination.
A grade school test in which Lewis scored an IQ above 70 would not have
changed his diagnosis if he would have been provided with it. He said the
identification of language and learning disablement (LLD) is a step down
from special education programs.
Lewis missed 148 days of school 1 year, which could have contributed to
his failing grades. But that too is one piece of the puzzle in Garnett's
diagnosis, he said.
District Attorney Matt Bingham read testimony from Lewis' late mother that
said he often stayed home from school to care for his younger siblings.
Lewis began having problems in school after the family moved in with his
father, who beat him and who he later shot to protect his mother. But the
determination to place him in a special needs school was made before the
shooting, Garnett said.
Garnett said there was no reason for him to doubt that Lewis was
physically capable of doing things and that one of his strengths was his
capability as an artist.
Mildly retarded people can function well in society, including breaking
the law. They can plan a commission of a crime, whether or not they
understand the implications, he said.
Dr. Susana Rosin, a licensed psychologist hired by the state, tested Lewis
and determined he had an IQ of 79. Garnett said he believed she
administered some parts of the test incorrectly, he re-scored it and came
up with an IQ of 75.
He said if a person has a 75 IQ and met the criteria for adaptive
deficits, they could still be diagnosed as mentally retarded.
Garnett said neuropsychologist Stephen Martin, hired by the defense,
administered tests to Lewis correctly. He determined Lewis' IQ to be 59.
Dr. Rosin said she believed she made the correct clinical decision in
diagnosing Lewis as not mentally retarded and said it was unethical for
Garnett to change her scores. Instead, he should have administered his own
tests on Lewis if he had doubts with hers, she added.
She said it is impossible to give perfect tests every time and there is
some degree of error in every test. Garnett's scores were in the same IQ
range of borderline intelligence as hers indicated, she said.
Dr. Rosin said she was surprised to hear that Martin diagnosed Lewis as
mentally retarded with only an IQ score and a small stack of records.
Experts must rely on as much information available through all sources.
She said neither she nor Martin were hired to determine Lewis' IQ before
the age of 18; only his current IQ mattered.
Dr. Rosin believed Martin was confused in how he administered the tests
and what he was trying to look at, she testified.
Lewis' level of academic achievement now is at a 3rd-grade level and
people who have adaptive deficits do not always qualify for mental
retardation, Dr. Rosin said.
Doctors for the defense said they believed Lewis did not malinger on his
testing to trick examiners into believing he is mentally retarded.
"I think everyone in this situation would have a motive" to malinger on
the tests, Dr. Rosin said.
LEWIS' SCHOOL RECORDS
Melinda O'Quinn, a certified education diagnostician who began working for
Tyler Independent School District a few years after Lewis left the
district, obtained Lewis' remaining school records and testified for the
state Wednesday.
She said he was admitted to the St. Louis School, for special needs
children, because he was determined to have language learning disability,
which meant his IQ was higher than 70 and there was a discrepancy with his
achievement. It is impossible to be labeled as LLD and mentally retarded
at the same time, she added.
"There is no indication he was ever diagnosed with mental retardation
while at TISD," Ms. O'Quinn said.
She said students could be transferred to the school for emotional
problems, behavior, if they had difficulty reading, writing or
comprehending or for mental retardation.
Lewis attended several schools after St. Louis until he withdrew during
his eighth-grade year. Students typically left the special needs school
because they were determined to be at a higher level.
Donna Mims, a former sergeant for the Texas Department of Criminal
Justice-Institutional Division, testified she worked at the death row
prison from 1994 to 1999 and knew Lewis. She said all inmates are
evaluated medically and psychologically and have to be "cleared" before
they can become eligible for the work program.
Lewis worked both in the garment factory making officer uniforms and as a
support service inmate, which included physical strength and dealing with
segregated inmates.
As Ms. Mims described the number of food trays SSIs dealt with, Lewis
raised his fingers in an effort to correct her testimony.
Ms. Mims said she never had any trouble conversing with Lewis, who she
talked to as a normal person and who followed her orders. She classified
him as an average inmate - "every day was always the same," she said.
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.
Defense attorneys Mike Charlton, of New Mexico; Gary Taylor, of Austin,
and Gerald Bierbaum, of Houston, are representing Lewis while Assistant DA
Mike West is representing the state with Bingham.
The writ of habeas corpus hearing is scheduled to continue with Dr.
Rosin's testimony Thursday in 114th District Judge Cynthia Stevens Kent's
court.
(source: Tyler Morning Telegraph)
**********************
Man could face death if convicted of killing officer
Theodore Michael Berry, who was arrested in the September shooting death
of El Paso police Officer Angel Andrew Barcena, may face the death penalty
if he is convicted.
Berry, 43, was indicted Tuesday on a charge of capital murder. In Texas,
capital murder is punishable by death or life in prison.
"The district attorney is considering it for the death penalty," Renee
Railey, spokeswoman for the El Paso County district attorney's office,
said Wednesday.
While District Attorney Jaime Esparza considers his options in this case,
the El Paso Police Department is nearing the completion of an
administrative fact-finding investigation into the shooting.
Police Chief Richard Wiles said the report should be ready by the end of
the week.
"I ordered the fact-finding investigation to take place mainly for the
purpose of looking at the events of the shooting to determine if there are
any issues in regards to training that need to be addressed," Wiles said.
Police have reported that Berry shot and killed Barcena, 38, on Sept. 25,
while the officer and his field training officer were responding to a
domestic disturbance call at Berry's home on the West Side.
The death was the 1st time in 13 years an El Paso police officer was
killed in the line of duty.
Wiles said he's been told that the fact-finding investigation would show
that both Barcena and officer Daniel Delgado did pull out their firearms.
Wiles said he did not know what else the report would contain.
Police reports after the shooting stated that when the officers came face
to face with Berry, who was carrying a .38-caliber revolver, Barcena
reached for his Taser rather than his handgun. He fired, but missed Berry.
Berry allegedly fired twice, including the fatal shot that pierced
Barcena's lower back. Wiles has said he thought the officers acted
appropriately; however, he requested a separate review of the shooting.
(source: El Paso Times)
