Dec. 15
TEXAS:
Life After Death -- Andre Lewis was 8 hours from being executed, until the
courts realized they had made a big mistake
Andre Anthony Lewis used to dream about his death. He thought of it so
often it became almost like the memory of something that hadn't yet
happened. In this dream, Lewis sits in a prison cell, a man comes to fetch
him, and together they walk down a long, silent corridor that leads to a
small white room in which a cold metal gurney sits in the middle of the
floor. Lewis climbs on that table, and the man straps him to it. Then he
jabs a needle into Lewis' enormous arm and fills his body with a
combination of muscle relaxants and surgical anesthetics, which will
plunge him into a deep sleep from which the son of Odell and Betty Mae
Lewis will never awaken.
Lewis does not have that dream anymore. Death, which used to loiter
outside his cell door like an impatient old friend, has moved on to claim
some other poor soul. For the first time in a long time, Andre Anthony
Lewis does not have the precise date of his demise penciled on some
executioner's calendar. Today he knows there will be a tomorrow and a day
after--a day when he might learn a skill he could use in the real world,
should he ever be given the chance to walk out of prison.
"And hopefully one day I can talk to youngsters heading down the wrong way
and explain what I've been through and detour them," Lewis says now, his
6-foot-4, 250-pound frame squeezed into a tiny cell at the Allred Unit of
the Texas Department of Criminal Justice, located just outside Wichita
Falls in Iowa Park. The voice, soft and reflective, does not match the
vision of this hulk clad in a prisoner's white jumpsuit. Some of the
guards have taken to calling Lewis "The Green Mile," because he reminds
them of the gentle giant from that movie.
Soon he will begin taking vocational classes, perhaps something to do with
bricklaying or woodwork, something to make him useful in a world that once
regarded him as useless. He is slowly adjusting to life off Death Row. He
now has a cellmate, takes his meals outside his cell and watches
television or plays checkers in a communal break room with other inmates.
During his 16 years in the Ellis Unit and then the Polunsky Unit, he was
isolated, confined to his cell for 23 hours a day. When a guard came to
fetch him, Lewis was always sure it was to tell him that today was the day
he was going to die. Now, someone comes to retrieve him three times a day
for 3-hour stretches in the yard or the TV room. Life is better now,
because at least it's a life.
"At least now I have something to look forward to--my freedom," he says.
"And I want to help others from heading down the wrong road." Few would
make better tour guides than Lewis. He knows the path by heart.
On February 18, 1993, Lewis was supposed to die, and it was almost certain
he would. His attorneys had little hope; Lewis, none at all. 6 years after
a Dallas County jury had sentenced him to die, Lewis was a mere 8 hours
from becoming the 55th life taken by the state since 1973, when a revision
to the Texas Penal Code allowed for executions to resume in the
state--after the U.S. Supreme Court had ruled them unconstitutional just
one year earlier.
Lewis, now 38, had been convicted of capital murder for killing a
17-year-old named Matt McKay during the botched November 20, 1985, hold-up
of a Carrollton convenience store. Of his guilt, there is no doubt: The
crime, set up by Lewis' uncle, had been captured on black-and-white
surveillance video. Lewis had been in trouble before for stealing cars and
breaking into buildings, and in 1985 he was sentenced to seven years'
probation for burglary and car robbery. The shooting, though, was the only
time he'd done anything violent. Problem was, it doesn't get much more
violent than killing a kid.
Lewis, then 19, and his half-brother Tommie Ronnie Berry, carrying loaded
guns their uncle had given them, walked into the PDQ Texaco Food Mart on
Stemmons Freeway pretending to be customers. Berry asked for a restroom
key; Lewis, a pack of cigarettes. The clerk asked if they wanted anything
else. Yeah, Lewis told her. All the money in the drawer. "Get on the
floor, bitch," he ordered, in monotone voice flattened by cocaine and
booze. Lewis also wanted what was in the safe, but the clerk said she
didn't know how to open it. "You can open the safe, or you're going to be
the killed one!"
Berry came over to help his half-brother, but they fumbled around so long
that customers, including two men in their late teens, began filing into
the store. The two men, Dave Masters and Matt McKay, had come from Houston
and were heading home to Oklahoma City. Lewis pretended to be a clerk, but
in his addled state he couldn't maintain the ruse for long. Brandishing
the gun, he ordered the customers to hit the ground, and all complied save
for McKay, who appears on the videotape to be oblivious to the commotion
around him. Lewis shouted at McKay, then finally lost his temper and
pulled the trigger, firing a single bullet into his gut. A red stain
spread across his white shirt. He asked his friend Dave, "I'm dying,
aren't I?" On the tape, Lewis appeared to kick McKay.
McKay would survive his gunshot wound for 10 days, but after several
surgeries, his parents told the doctors at Parkland Memorial Hospital to
turn off the equipment keeping their son alive. Matt McKay was pronounced
dead at 3:07 a.m. December 9, 1985.
Less than eight years later, Andre Lewis had consumed his last meal and
been guided to a cell to await his escort, a Grim Reaper dressed as a
Texas Department of Criminal Justice officer. He wondered if he'd see his
family one last time and what awaited him "on the other side."
He was damned near in the ground when, at nearly the last moment, U.S.
District Judge Joe Fish granted Lewis a stay of execution--and, as it
turned out, released him from death row altogether.
Two days before Christmas last year, Lewis awoke from his nightmare. The
5th U.S. Circuit Court of Appeals vacated his death sentence--not because
Lewis was innocent, but because during the penalty phase of his original
trial in 1987, his court-appointed attorneys didn't present a single shred
of evidence that could have softened the jury's deathblow.
They did not tell the jury that Lewis, picked on at Pinkston High School
for his shabby, ill-fitting clothes and for being unable to understand
anything other than a football coach's commands, was a victim of ghastly
abuse--had been since he was a child, since he was old enough to remember
anything. They did not utter a word about his life story, which, in court
documents and the testimony of family members and medical professionals,
reads like the screenplay of a horror movie, filled with stabbings and
shootings, sexual abuse and mutilations. They did not mention his father,
Odell, a junkie and convicted felon who threatened his own children with
guns and knives and put out his cigarettes on their skin. They did not
mention his mother, Betty Mae, who used drugs and drank heavily during her
5 pregnancies. They did not mention how the Lewis family lived in the
George Loving Housing Project in West Dallas, near the infamous RSR lead
smelter plant that poisoned the playground on which Andre and his sisters
and brothers played as children.
So the jury did what it believed just and necessary: It sent a man
portrayed by prosecutors as dangerous and habitually violent to die, never
knowing that he, like so many men on death row, was doomed long before he
and McKay crossed paths in that convenience store.
It took several attorneys, including a lawyer living in San Francisco, 11
years to convince the courts that Lewis did not have a fair trial. In that
time, the federal courts intervened, and the U.S. Supreme Court handed
down a ruling in another case that would directly impact Lewis'. Lewis'
attorney persuaded the courts to hear the terrifying testimony the jury
did not in 1987. Family members and psychiatrists paraded into court, each
bearing their own horror stories. Lewis even became something of a poster
boy for legal experts trying to link lead poisoning to mental deficiency
and criminal behavior. And in that time, Lewis and his lawyer hoped he
wouldn't be executed, but never had the temerity to believe his life would
actually be spared.
"Being in prison for a long time will change anyone, for good or worse,"
Lewis says. "For me, it was for the good. When I first got here, I was
young, angry, scared. I didn't have a sense of direction. All I did was
react. Then one day I saw the older guys smiling, getting along. One day I
said, 'I want that kind of peace.' I have always hoped, but I tried not to
put all my hope into one basket. I tried to live day to day, and whatever
happened, happened."
--
Andre Anthony Lewis' escape from lethal injection is an anomaly, but not
an aberration--not these days, not in Texas, hard as it is to believe in a
state that likes to kill its bad guys. Several times this year alone, the
U.S. Supreme Court has spared the life of a convicted killer from this
state, usually with harsh words for prosecutors. The justices have good
reason to probe deep into the black heart of Texas' death machine: Of the
65 people executed in this country last year, 24 were from here.
On November 15, the Supreme Court vacated the death sentence of LaRoyce
Lathair Smith, sentenced to die for pistol-whipping, shooting and stabbing
with a butcher knife a 19-year-old female manager of a local Taco Bell in
January 1991. Smith's and Lewis' stories are almost identical: They're of
below-average IQ and were lucky to have even survived ghastly childhoods.
Seven of the justices believed Smith shouldn't die; only 2, conservatives
Antonin Scalia and Clarence Thomas, voted otherwise. 5 months earlier, the
court ruled the same way for Robert Tennard, insisting that if the jury
had known about their life stories, perhaps they would have imposed "a
sentence more lenient than death." And earlier this year, they took Delma
Banks off Death Row, claiming he, too, didn't get a fair trial.
And so, in a state once known for killing its convicts with numbing
regularity, there is now a bit of hope that one death need not guarantee
another. Perhaps that will change as George W. Bush begins to reshape the
Supreme Court in his image. After all, when he was governor of Texas, 152
people were executed while he opposed setting up a single legal roadblock
that might have slowed their path to the death chamber.
Lewis survived because his legal battle was taken out of the hands of
Texas. Instead it was waged in the federal courts, which are historically
friendlier to the condemned.
And it was the U.S. Supreme Court that in June 2003 lifted the death
sentence of a borderline retarded Maryland man named Kevin Wiggins,
convicted of killing an elderly woman for whom he worked as a handyman.
The court ruled that the jury that sentenced Wiggins to die might have
ruled differently had it heard about how he was starved, beaten and
repeatedly raped as a child and how his mother used to punish her young
son by burning his hands on a stove.
"The Wiggins case did not break new ground," says Robin Maher, director of
the American Bar Association Death Penalty Representation Project. "It was
reaffirming a well-established position about mitigating evidence. It
served as an important reminder that this was essential evidence in death
penalty cases. It put an exclamation mark behind the importance of
developing and putting mitigating evidence in front of a jury before
sentencing. That evidence is usually painful, too, facts nobody wants to
admit to, and it's the same story in case after case. As compelling as the
facts were in Wiggins, his story was not unusual. Many, many clients are
executed without evidence presented that was far more compelling."
Lewis and dozens like him waiting to die in Texas and elsewhere do not
have the market cornered on tragic, grisly childhood tales. They're but
tiny chapters in thick books spread out over hundreds of volumes. Lewis
isn't special. He just survived long enough for someone to tell his story.
He would have disappeared down the well long ago had it not been for 3
attorneys who believed Lewis had been poorly represented during his
original trial and who believed he did not mean to kill McKay and did not
deserve to die for pulling the trigger that awful afternoon.
It was almost 12 years ago this week that two of those lawyers, Sandra
Babcock and Elizabeth Cohen, first contacted the Dallas Observer about
Lewis. They worked for the Texas Resource Center back then, a federally
funded group of attorneys and investigators who made sure every inmate had
his or her right to a federal appeals process after a death sentence was
imposed. (The Resource Center has become a thing of the past; in September
1995 the federal government cut off funds for resource centers around the
country.)
To them, Lewis was a special case and not so special at all, meaning they
wanted to save his life, absolutely, but also to use his case to reveal
how broken the system had become in sentencing to death a man who never
had a chance at any kind of normal, decent life. Babcock and Cohen, and
one of the TRC's investigators, spent nearly two months introducing me to
Lewis' family members--the aunt and grandmother who tried to raise and
rescue him, the sisters who had their own minor run-ins with the law, and
the junkie father who tortured his children so often and so brutally that
they came to believe that his killing them would have been the kindest
thing their dad could have done.
Odell Lewis, who spent time in Louisiana's infamous Angola Penitentiary
for breaking into a drugstore and had his own FBI file, beat his kids with
firewood, threatened them with the pistol he kept in his belt and cut them
with the knife he always had on him. He tore their clothes to shreds,
kicked his daughter Tammy so hard when she was 11 she had to have an
emergency hysterectomy and tried to rape her when she was 14. When Andre
was 6, Odell threw him down a flight of stairs, and the boy suffered
massive head injuries; a few years later, Odell punched him in the face
with such force Andre's teeth busted through his lips.
Odell would also put out his cigarettes on the kids' arms and force them
to pull down their pants so he could whip their genitals with extension
cords. Andre's aunt Ruth Ann Sims and Tammy always believed he was into
black magic: They recalled the nights when he would sleep in a cemetery
and told of how he would "splash blood on the walls and holler voodoo." A
few weeks ago, Sims said Odell was "one of the evilest things."
Odell's wife, Betty Mae, was no better. She was a pill-popping drunk, as
violent as her old man, whom she met and married when they were living in
Shreveport, Louisiana, in the late 1960s. In front of the kids, Odell
would put a cooking pot over Betty Mae's head and beat the pot till she
passed out. In the summer of 1969, Odell shot her in the leg and arm with
a .22-caliber pistol after a fight at a car wash. He used to beat her with
baseball bats; he used to stab her, too. Years later, after the family
moved from Shreveport to the West Dallas housing projects, Betty Mae
slashed Odell with a butcher knife, spilling his blood and guts all over
the floor, then told Andre to call an ambulance. Andre would dream about
the incident for years, even after he'd been confined to Death Row. She,
too, would spend time in prison and finally died in 1991, at the age of
47, of a massive heart attack.
By the time Babcock and Cohen introduced me to Odell, he was a shriveled,
rotting 49-year-old man confined to a wheelchair in an Oak Cliff nursing
home that smelled like piss and death. His penis had been removed because
of gangrene, the result of his shooting heroin into the last remaining
vein he could find worth a damn. He had syphilis. He denied everything. "I
never did nothing to hurt those kids," he said. "I just got these demons
in my head, and I gotta get rid of them." He finally died in September
1994, when cancer and syphilis did him in.
The Observer's story about Andre Lewis, "Who We're Killing," appeared
February 11, 1993. He was to die seven days later, but Judge Fish granted
him a reprieve hours before the needle was to be jabbed into Lewis' arm.
That stay set into motion 11 years' worth of appeals, legal filings and
hearings, during which one man in faraway San Francisco struggled to keep
Lewis from dying. That he actually succeeded surprised the hell out of
him.
--
When attorney Richard Ellis took Andre Lewis' case in late 1992, he had
already been practicing law for 17 years, during which he had represented
kids accused of murder. But in the early 1990s--"after much thought and
reflection," he says now--Ellis decided to take on death penalty cases,
which he viewed as "a civil rights struggle." And where better to begin
than in Texas, where killin' criminals is a way of life?
"It's all about race and class and the poor who don't get adequate
representation all the way through, from trial to appeal to
post-conviction," Ellis says from his Bay Area offices. "It's about poor
people not being able to afford decent attorneys who can do a decent job
in court, not being given the funds by the state to fund their
court-appointed attorneys. To do death penalty, one should be on the front
lines of the death penalty, which is Texas and not California. It's like
if you were doing civil rights work in the 1960s and going to New York
City or Minneapolis. It's not where the center of action was. And the
center of action regarding the death penalty is, and has been for the last
who knows how long, Texas."
So he went looking for a case and found Lewis', boxes of files that had
piled on Sandra Babcock and Elizabeth Cohen's desks and their floors and
everywhere else they could see in their tiny Austin offices. They were
happy for the assistance--desperate for it, in fact. It would take months
for Ellis to catch up with the case, but initially he had little time:
Lewis' first execution date was rapidly approaching, and the two Texas
attorneys were buried beneath paperwork. "It was like a relay race in the
Olympics: You hand off the baton," Ellis says. "They handed it off, and
here's where it stayed for the next 11 1/2 years."
The attorneys had always viewed Lewis' case as a million-to-one shot to
win: There was the video, after all, that damning residue that proved
Lewis had pulled the trigger. To most juries and judges, it wouldn't
matter who gave him the gun, and it wouldn't matter who planned the crime
or how Lewis ended up crossing paths with McKay. All anyone needed to know
was right there: Andre Lewis held up a convenience-store clerk, threatened
to kill her and then murdered a kid who just got in the way.
But Ellis, in his hundreds of pages of legal briefs, never said Lewis was
innocent. All he ever argued was that Lewis never got a fair shake after
the jury handed down its verdict--that the jury that convicted him never
heard a single word about his childhood, never factored in the
overwhelming mitigating circumstances that might have led 12 people to
spare his life. During the original 16-day trial in May 1987, Lewis'
original court-appointed attorneys, Mike Byck and Jan Hemphill, had put on
a single witness during the penalty phase: Lula Mae Berry, Andre's
grandmother and Betty Mae's mama, who was asked yes-or-no questions to
which she provided brief, unrevealing answers. Even though their case file
reveals they spent some eight hours interviewing Lewis' family about his
abusive childhood, Byck and Hemphill claimed they didn't have the time or
money to do a proper investigation.
"Many lawyers assigned to capital cases don't have the skill or experience
or don't have experts to help them develop evidence of mitigating
circumstances," Maher says. "Many death cases shouldn't have even been
death cases, but this is among the most profound failures in all capital
cases."
But Ellis knew all about Lewis' past; Babcock and Cohen provided him with
enough horror stories to last a lifetime. All he needed to do was convince
a judge that they were horrifying enough to warrant vacating his death
sentence. Seemed simple enough. It took only 11 years to find a court that
agreed with him.
Lewis' case bounced in and out of courts throughout the 1990s: Ellis, who
came to Texas several times a year to meet with Lewis, would petition for
rehearings, always with the courts denying Lewis relief. In the meantime,
Lewis went under the microscope of psychologists and law professors who
believed his growing up in a violent household on lead-poisoned soil
doomed Lewis before he was old enough to tie his shoes. In December 1993,
Dallas Independent School District psychologist Richard Peck spent several
hours with Lewis, studying his school records and talking with family
members. Peck determined that Lewis' long-term exposure to lead in the
George Loving Housing Project soil--Peck estimated that from 1972 to 1974,
Lewis' body had absorbed more than 20 times the Environmental Protection
Agency's allowed amount of lead--had "serious consequences in his early
development."
In 1994, law professor Deborah Denno of Fordham University in New York
wrote an article for the American Judicial Criminal Law journal in which
she used Peck's research to establish a "nexus between Lewis'
disadvantaged background and his lack of culpability at the time he
committed the crime." She concluded that "Lewis' background and cognitive
defects, in addition to his intoxicated condition at the time of the
crime, contributed to the kind of 'damaged personality' required by the
Texas court...so that the defendant in that cause could excuse his
criminal behavior."
Ellis would also find clinical and forensic psychologist Mark Cunningham
to study Lewis' life story--full, Cunningham would later write, of
"sequential emotional damage," the kind that keeps a child from ever
having any shot of growing into an adult worth anything.
Finally, in late November 2001, Ellis was allowed to present to U.S.
Magistrate William Sanderson 3 days of testimony no one had ever been
allowed to hear. Family members paraded to the witness stand to recount
their stories of Odell's abuse and violence and "evil behavior." Andre's
old coaches at Pinkston showed up to talk about what a good kid he'd been
and about how much trouble he had learning the simplest task. "We would
have to repeatedly go over, over, over, over, over the same offensive
plays," said Coach James King. And Cunningham and Peck showed up to repeat
their findings that the abuse Lewis suffered is "the most severe of any
type I have come across," as Peck told Sanderson.
Lewis never wanted that hearing, not because he wanted to stay on Death
Row, but because he didn't want to relive those memories. He had stopped
having those dreams. Enough already. Maybe they should have killed him.
Woulda been easier to take.
"I tried to ignore a lot of things and not think about the abuse," he says
now. "I can't change it, and I don't want to think about it. I didn't want
to go down that path again, but Richard was trying to save my life, so I
was willing to go through it. Sitting in the courtroom for that hearing
was a struggle, but necessary. I prepared myself for it. I wasn't sad for
myself. I was sad for my family, having to go through it again."
That was the last time Andre Lewis saw his family--the last time they had
a chance to hug him, to tell him they loved him. What saved Lewis
ultimately destroyed a family. Before the hearing, Aunt Ruth says, Lewis
would write all the time. Afterward, they didn't hear from him at all, not
even when the 5th Circuit Court vacated his death sentence on December 23
of last year.
"You don't like to tell stories about kids' parents with them right
there," Ruth Sims says. "It was like we were ganging up on him. But we
lived this, too. Every time you start to talk you'd break down, because
you'd bring it up from memory. I told them we didn't have no reason to
lie. Those kids went through hell. We can't change that. That's what
happened. But after the hearing he would never write."
His grandmother Lula Mae Berry says she didn't even know Lewis had been
taken off death row and that he was now in Wichita Falls. His sister Lisa
says she, too, had no idea. "My grandmother always said the truth will set
you free, and we told the truth," she says of that November 2001 hearing.
"I guess Andre didn't like that."
>From the moment he took the case, Ellis believed that Lewis deserved the
fair trial he never received in Dallas County, deserved to be considered
as more than a figure on a videotape doing a bad thing to a good kid. Had
Ellis lost this case, and this client, he says he would have quit
practicing law.
"I witnessed 2 executions of 2 of my clients, and I couldn't have gone
through that again," he says. "It's too draining. It's awful. You can't
imagine what it's like to see someone you know and like as a friend sit
there on a gurney and be killed. It's an awful thing. I still remember...a
lot...about the first ones I saw." His voice cracks. "It was very hard. I
was ready to give it up. I was not going to continue had he been executed.
I don't even like to talk about it. It's just too, too traumatic. Getting
Andre off death row did give me hope in the sense that I am still doing
it. And I hope maybe it will give other people hope."
The Dallas County District Attorney's Office could have tried Lewis again,
but the district attorney concluded it wasn't worth the cost and time, and
in May Lewis was given life in prison, with the possibility of parole. He
has been a model prisoner. Maybe he will get out one day. Maybe he'll do
something with his life after all, now that he has one at long last.
"Today it ain't even fully hit me yet," Lewis says, smiling for the 1st
time at the end of an hour-long interview. "I realize I am off death row
and what's expected of me and what I have to do. I know I came within 24
hours of being executed, and now I have a life. It's strange. Guys say,
'You're lucky,' and maybe I am. For so long I prepared myself to die. Now
I have to prepare myself how to live."
(source: Dallas Observer)
**********************
Kinky Friedman to announce gubernatorial bid on TV
Texas musician and author Kinky Friedman plans to formally launch his
candidacy for Texas governor on live television in February, he announced
Wednesday.
Friedman said he expects to appear outside the Alamo on MSNBC's "Imus in
the Morning" on Feb. 3 or 4. He plans to be joined by the band "Asleep at
the Wheel" and a group of child fiddlers.
Friedman told the San Antonio Express-News in Wednesday's online edition
that he chose the program because Imus is an old friend and "a lot of
geezers watch his show in Texas."
"This could be a very long shot," Friedman said of his anticipated
gubernatorial run, which he has touted for more than a year.
A spokeswoman for MSNBC could not be reached by The Associated Press
Wednesday evening.
(source: Associated Press)
