Jan. 17
TEXAS:
The Accidental Defenders
In the fall of 1992, James Blank, a 26-year-old first-year associate at
New York's Mudge Rose Guthrie Alexander & Ferdon, got a call from partner
Thomas Evans asking him to come by and talk about a new client the firm
had agreed to represent. Blank had done some work for Evans after joining
Mudge's intellectual property litigation team following his graduation
from the New York University School of Law.
But Evans didn't want to talk to Blank about Nintendo Co., Ltd., or any of
the firm's other big IP clients. Rather, the new case was representing
Ernest Ray Willis, a man convicted of capital murder for setting a house
fire in tiny Iraan, Texas, that killed 2 women. Blank was a little
surprised. Though he'd always assumed he'd do pro bono work for the firm,
he wasn't especially interested in the death penalty, hadn't done any
clinic work on criminal cases while at NYU, and knew nothing about Texas
justice. Nonetheless, Blank soon found himself seated in a room reading
through 30 volumes of Willis' trial transcripts.
So began an extraordinary legal journey that would consume Blank for much
of the next 12 years. During that time Mudge Rose blew up, and Blank --
along with other firm lawyers -- joined the New York office of Latham &
Watkins. Blank's new firm would pour millions of dollars and thousands of
hours of lawyer and staff time into representing Willis. Despite that,
everyone working on the case knew, the odds were long. Since the death
penalty was reinstated by the U.S. Supreme Court in 1976, fewer than a
dozen inmates have been freed from Texas' swollen death row.
Moreover, the Lone Star State's legal environment was increasingly
hostile. By the late 1990s Texas's Court of Criminal Appeals (CCA), the
state's highest criminal court, was composed of nine elected Republicans,
most of whom were former prosecutors who ran on strong law-and-order
platforms. A study by Texas Monthly magazine found that between 1994 and
2002, the CCA reversed only 3 percent of death penalty convictions, the
lowest percentage of any court of last resort in the nation.
Additionally, after congressional reforms in 1996, federal courts became
much less amenable to reviewing capital convictions. "To succeed on a
death penalty case, postconviction, you need to change the factual
picture," says Austin solo practitioner Robert Owen, a death penalty
specialist who advised Latham on the Willis case. "You need to find
documents never located, talk to witnesses never interviewed, get your own
forensic experts ... it costs a tremendous amount of money and time."
Latham spent that capital, and, in the end, all that stood between Ernest
Willis and lethal injection was a group of volunteer lawyers from a
commercial law firm, led by an associate who, by his own admission, knew
next to nothing about criminal law.
To make matters more difficult, by the time the case made it to Blank,
Willis already seemed like a man out of chances. After being convicted in
August 1987, he lost his appeal to the Texas CCA, and his subsequent writ
of certiorari to the Supreme Court was denied. Further, the record
bristled with what the prosecution claimed was overwhelming evidence that
Willis had torched the house where he was temporarily living.
Investigators on the scene found Willis' behavior suspicious. He seemed
unconcerned about the two dead women, and though he claimed to have run
through the flaming house trying to save everyone, police saw no burns on
his body or clothing. Willis had a criminal record-multiple convictions
for driving under the influence and public indecency-and a checkered
personal life: He'd been married 6 times by the time he was 40. All
investigators thought they lacked was a motive.
That proved only a small obstacle to Pecos County prosecutor J.W. Johnson.
He sidestepped the issue by portraying Willis as a dangerous drifter and
crazed killer. At various points in the 2-week trial, Johnson referred to
Willis as a "rat," "an animal," and "a mean, vicious dog" that had to be
put down. Johnson compared Willis to the maniac shooter who massacred 20
people at a McDonald's outside San Diego in 1984. He told jurors Willis
was a "satanic demon," "a monster from a horror film," and "something
other than a human being."
Throughout, Willis' defense lawyer rarely objected, nor did Willis himself
seem much bothered by the portrait the prosecutor sketched of him. In
fact, trial jurors saw a blank man with impassive eyes unmoved by the
abuses hurled at him or by the gruesome pictures of the victims. At one
point Willis' lawyer handed him a legal pad and pen and implored him to
doodle -- to do something, anything -- other than stare into space. But
Willis hardly seemed to care what was happening, a fact the prosecutor
used against him with gusto, referring several times to his "cold eyes"
that showed no remorse. "Ladies and gentlemen, this is an animal sitting
right down here at the end of the table," Johnson said in his closing,
"just like one of them pit bull dogs ... You don't need to know the
motive. Actions speak loud enough. This is an animal."
But as Jim Blank began to work on Willis' case, he had a hard time
squaring the portrait the D.A. drew with what he knew of his client. In
letters, Willis appeared thoughtful and patient -- hardly the dangerous
lunatic Johnson had conjured. He often expressed gratitude for Blank's
help and said he understood it might take a while for the young lawyer to
get up to speed on his case.
The positive impression was bolstered when Blank and Walter Loughlin,
another Mudge attorney who joined the case, made their first visit to
Willis on death row in Huntsville, Texas, in the fall of 1994. A patent
litigator, Blank had never been inside any prison, much less the most
notorious death row in the country. He found the surroundings
intimidating, to say the least. But he also found the heavily shackled
Willis docile and calm, "like a big teddy bear," he recalled later. Willis
was similarly impressed with Blank, but recalls thinking, "This is just a
young kid."
Blank couldn't shake the feeling that something didn't add up; Willis
didn't seem like he belonged on death row. Loughlin agreed. A former
federal prosecutor in the Southern District of New York, he thought he
knew violent criminals pretty well. Willis just didn't seem to fit the
bill. In Blank's words, the visit to Willis was a "tangible kick in the
pants," and the case began to dominate more and more of Blank's schedule.
Willis' lawyers at the Texas Resource Center (TRC), a federally funded
public interest firm that is no longer funded by Congress, had previously
filed a state court habeas petition on his behalf. In the fall of 1995 the
Texas CCA ordered the trial court to hold a hearing on the petition.
Around this time Mudge Rose came apart. About 30 lawyers from the firm's
litigation department went over to Latham & Watkins, including Blank and
Loughlin. They brought the Willis case with them, and Latham never raised
any objection to what was fast becoming a major piece of pro bono
litigation, says Blank. "If they had said the case was too much of a
hassle, who knows what would have happened," he adds. Instead, the firm
fully supported Blank's efforts and even allocated additional resources.
Soon after Blank joined Latham, Elena Norman, an associate in the
litigation section whom Blank had known when they were both undergrads at
the University of Pennsylvania, expressed interest in getting involved in
the case. Later, two other associates, John Brennan and Noreen
Kelly-Najah, joined the team.
Willis may have been the most compelling case on Blank's docket, but it
was far from his only one. Blank was also working on two massive patent
infringement cases, one on behalf of America Online Inc. which was suing
Wang Laboratories Inc. and another for Nintendo, which was suing General
Electric Company. Latham won both on summary judgment. Blank also got
married in 1998. He says he never worried that the nonbillable time he
devoted to Willis would hurt his chance at making partner. "I've always
been a pretty hard worker, so this didn't detract from hours I devoted to
billable clients," he says. "It was always something I wanted to do over
and above the work I was doing for paying clients." Blank also viewed the
pro bono work as a valuable chance to gain courtroom experience and learn
how to build a case from the ground up: "That was important to making
litigation partner in a firm like this one."
In preparing for Willis' evidentiary hearing, one of the first things the
Latham team agreed on was the need to narrow the focus of his habeas
petition. The TRC filing had taken a "kitchen sink" approach, laying out
more than 30 grounds for relief. The Latham lawyers set about evaluating
the claims to see which looked most promising.
At the top of the list was the fact that after Willis had been convicted
and sentenced to die, another death row inmate, David Long, had come
forward to a prison psychologist and confessed to setting the Iraan fire.
Long, already convicted of one arson killing, admitted to holding a grudge
against Willis' cousin Billy, who was also sleeping in the house. Latham
hired a private investigator who succeeded in corroborating various
aspects of the confession. But at a hearing on the confession, Long
behaved bizarrely, then refused to testify about his confession on the
advice of counsel. Ultimately the defense team was allowed to introduce a
two-hour videotape of the original confession along with some
corroborating evidence. (Long was executed in 1999.)
Though the state attacked Long's confession as suspect, it nevertheless
went a long way toward raising doubts about the Willis case. Judge M.
Brock Jones, Jr., who had presided at the Willis trial, agreed to schedule
additional hearings on other issues in the habeas petition. One of those
issues concerned the state's theory of how the Iraan fire had occurred.
State investigators had made much at trial of how burn patterns on the
floor conclusively showed that an accelerant had been poured throughout
the house and ignited to start the fire.
To evaluate the state's case, the Latham team hired Marshall Smythe, a
fire expert based in Arizona. Together he and Blank journeyed to Fort
Stockton, Texas, where the original evidence from the Iraan fire was
stored in black garbage bags in the courthouse basement. Smythe also
managed to track down and question the owner of the house about what
materials were present, and conducted extensive tests on them at Western
Fire Center Inc. in Kelso, Washington. Perhaps most important, Smythe
spent almost a year constructing a detailed computer simulation of the
fire. His main conclusion: The pour patterns the state had cited as proof
of arson were nothing of the kind. The patterns, Smythe demonstrated, were
just regular burn marks on the floor. Smythe's alternate theory was that
the fire had ignited in different places by a phenomena known as
flashover, where the heat of a blaze becomes so intense it can suddenly
ignite all flammable substances in the vicinity. The state's arson
science, Smythe concluded, was junk. It could just as easily have been an
electrical fire as arson.
While Blank focused on the arson investigation, Norman and Kelly-Najah
looked into 2 other promising defenses. Reviewing the case file, the
defense team noted that Willis had received a lot of medication while in
prison. The lawyers knew he had a serious back problem due to injuries he
suffered while working as an oil field roustabout. As a result, Willis
required constant pain medication (he was heavily dosed the night of the
fire, one reason his behavior might have struck the police as oddly
subdued).
But when the defense reviewed his medical records, they saw Willis was
given two medications unrelated to his back condition, Haloperidol and
Perphenazine. Both, it turns out, are powerful antipsychotic drugs.
Experts for the defense told the Latham team that an acutely psychotic
person, one who was "howling at the moon," might be given 15 milligrams of
Haloperidol per day. Willis had been given 40 milligrams per day. The
effect on a nonpsychotic person, especially when combined with
Perphenazine, was severe. Suddenly, Willis' strange demeanor at trial made
a lot more sense. In addition, the record showed the state had
discontinued the medication shortly after the trial ended. And on the form
used to admit Willis into the death row facility in Huntsville, the state
checked a box saying he had no known history of mental illness.
Why, the team wondered, would the state of Texas give powerful
antipsychotic drugs to a sane man? The lawyers couldn't get an explanation
out of the D.A.'s office, prison officials, or anyone else they asked (and
still haven't to this day). To investigate further, Latham hired Mark
Cunningham, a forensic psychologist. During Cunningham's examination of
Willis in the fall of 1997, he asked a standard question: Had Willis been
given a psychological exam by anyone before his trial? As a matter of fact
he had, Willis recalled. However, there was no evidence of such an exam in
the record.
The Latham team asked Willis' trial counsel Steven Woolard if he was aware
of the report. He said no, but said if it was done it was probably handled
by Jarvis Wright, a psychologist in San Angelo, Texas, who did work for
the state. Elena Norman called Wright and, though it had been almost a
decade, he remembered his examination of Willis well. After some
searching, Wright's secretary even managed to find a copy of the report in
an off-site storage location. It was, in Jim Blank's words, "a bombshell."
In addition to finding Willis competent to stand trial, Wright also found
that, absent additional evidence, Willis would not pose much of a future
danger to the community, normally a key factor used in deciding whether to
impose the death penalty. In fact, Wright recalled, he had met with
district attorney Johnson and told him he didn't think Willis would make a
good death penalty case. Wright thought he remembered sending his report
to Johnson by Federal Express. When Fed Ex said it didn't keep records
that far back, Wright's secretary managed to dig out a copy of the
delivery confirmation from an unrelated file. The slip showed the report
had been delivered to the D.A.'s office during the Willis trial and signed
for by Albert Valadez, Johnson's assistant prosecutor. When asked about
this later in a deposition, Johnson said that he had no memory of
receiving Wright's report and that he didn't even know exactly who Wright
was at the time of the Willis trial. In fact, Wright's records showed,
Johnson had used him on previous cases. "It was an outright lie," says
Blank.
Johnson denies that he lied about knowing Wright and insists that he never
saw Wright's report during the Willis trial. Johnson, who is now in
private practice in San Angelo, also says that Wright never recommended
against the death penalty ("It didn't happen"), and that he doesn't know
why Willis was given antipsychotic drugs during the trial. "The first I
heard of that was during the appellate process," Johnson says. Blank
responds that documentary evidence, such as the Fed Ex delivery slip and
Wright's billing records, "flatly contradict" Johnson on several points.
Blank also points out that both Wright's sworn testimony and file notes
reflect that he told Johnson he didn't believe Willis was a death penalty
case. Regarding the antipsychotic medication, Blank says that exactly who
ordered they be administered is legally irrelevant. Since Willis was in
state custody, Blank says, prejudice is presumed.
The final avenue the defense pursued leading up to the last habeas hearing
was a claim of ineffective assistance of counsel. Though a notoriously
hard claim to win on appeal, the Latham team thought it had a chance,
given the performance of Willis' trial counsel. Solo practitioner Woolard,
the lead defense lawyer, was handling his first capital case. At the
sentencing phase, where aggressive mitigation efforts often keep
defendants off death row, Woolard didn't call a single witness. The state
put on two law enforcement officers who testified that Willis had "a bad
reputation." Woolard asked them only two questions. Also, by the time of
the 1998 evidentiary hearing, Woolard had given up his law license in
connection with unrelated drug and weapon charges. (He now works in
Johnson's office as a legal assistant.)
To supplement these claims, a defense team, led by Elena Norman, spent two
weeks traveling through Texas and New Mexico rounding up character
witnesses to testify on Willis' behalf. In January of 1998 the Latham team
rented out most of a Holiday Inn Express in Fort Stockton, Texas, and
moved in all the witnesses to prepare for a final evidentiary hearing
before Judge Jones. "We even had them take the beds out of one room and
put in picnic tables," recalls Blank. "That was our war room." The hearing
lasted for a week.
Then they waited -- for 2 1/2 years. Finally, in July 2000, Blank received
an envelope in the mail from the Pecos County District Court.
There had been no advance warning, and he recalls that his hands shook as
he tore open the envelope. Inside, in 33 pages of Findings of Fact and
Conclusions of Law, Judge Jones ruled that Willis' constitutional rights
had been violated by the state and by the ineffective assistance of his
counsel, and that his conviction should be vacated. Blank and the rest of
the Latham lawyers were ecstatic. But they knew the trial court could only
make a recommendation for relief. The order itself would have to come from
the Texas CCA, the state's highest criminal court.
The CCA acted quickly. In December 2000 the court denied all relief
recommended by Judge Jones. In a succinct series of paragraphs, the ruling
brushed aside all the evidence the Latham team had so carefully assembled
over the years. On the state's pumping Willis with massive doses of
antipsychotic drugs, the court said Willis had never raised an objection
to the medication. On Jarvis Wright's suppressed examination of Willis,
the court found Wright had insufficient information to make a definitive
determination on the future danger posed by Willis, and, in any event, his
report wasn't material, since the defense hadn't demonstrated that it
would have changed the jury's mind.
The appeals court likewise found nothing so egregious in the conduct of
Willis' trial counsel as to warrant granting a new trial. "It was the
absolute low point of the case," Blank recalls. "It was one thing to lose,
but almost worse to get a 5 1/2-page ruling. The highest criminal court in
the state, and that's the scope of the deliberation in a capital case? It
was like it was written by a law student!"
The decision by the CCA left only the federal courts open to Willis. But
getting the federal courts to grant habeas corpus relief in state death
penalty cases has became a daunting task, full of procedural trapdoors and
evidentiary culs-de-sac. Nonetheless the Latham team-which now included
solo practitioner Owen-thought it had a few things going for it. One, the
federal court would consider the case based on the favorable findings of
fact Judge Jones had made, not based on the conclusions of the CCA.
Second, the case was assigned to Judge W. Royal Furgeson, a Clinton
appointee to the Western District of Texas whose record indicated he would
not lightly brush off Willis' petition. In fact, the Latham lawyers deemed
Furgeson so essential that when his docket was reorganized and the case
transferred to another judge, they wrote to Furgeson pleading with him to
take their case back. He agreed.
It proved to be an important turning point in the case. In August 2004
Furgeson issued a sweeping 80-page decision granting Willis' habeas
petition and ordering the state to either retry him or set him free.
Citing the state's use of inappropriate antipsychotic drugs on Willis, and
the suppression of Jarvis Wright's psychological report, among other
factors, Furgeson found that both Willis' "conviction and sentence were
obtained in violation of the U. S. Constitution." Furgeson says the
extensive findings by Jones made his decision a lot easier. "He's a great
judge," Furgeson noted. He also praised the Latham team: "Winning federal
death habeas is very long odds. Their work was of the highest order, the
kind of effort that does the profession proud."
The Latham team was again jubilant, but they tried to keep themselves and
their client from getting too excited. The state could still appeal
Furgeson's ruling to the 5th U.S. circuit Court of Appeals, which has a
strong conservative bent, or choose to retry Willis for the crime.
It decided to do neither. Reviewing the case, the Texas attorney general
office's capital crimes section recommended that no appeal be taken. In
Pecos County, Ori White, the new district attorney, undertook his own
review on the case against Willis. Two new state experts concluded that
the arson evidence was weak to nonexistent. One referred to the state's
theory that the burn patterns were caused by a liquid accelerant as
"voodoo," and noted that the expert testimony offered in support of that
theory was "worse than merely absurd; it is unconscionable." The other
expert similarly found that "there is not a single item of physical
evidence in this case which supports a finding of arson."
Given these findings and other factors, White concluded, the state would
move to dismiss the case with prejudice and ask that Willis be released
from jail without delay. Not everyone agreed with the decision. "Mr.
Willis is a lucky man I'm not still the prosecutor -- a very lucky man,"
says J.W. Johnson. He says he has not reviewed the state's new arson
evidence, but says he has no second thoughts about how he conducted the
case and remains convinced that Willis is guilty of the crime. Jim Blank
calls Johnson's comments shocking. "This shows what Johnson is all about,"
says Blank.
On October 5, 2004, Judge Jones, who 17 years before had sentenced Ernest
Willis to die, signed the order granting his release. A day later, Willis
was processed out of death row, a result so rare that prison officials
were confused about how to do it. Waiting for Willis was his wife of four
years, Verilyn Harbin, the sister of another death row inmate. It was the
first time they had ever touched.
Blank and the rest of the Latham team flew down to Houston the next day,
where Latham put Willis and his wife up in a luxury bridal suite, complete
with Champagne and chocolate-covered strawberries. The two men embraced
for the 1st time, but Blank would admit to no tears. On his feelings about
his 12-year legal odyssey, the IP lawyer says he mainly is relieved that
they won. "We've come so far together," Blank adds. "I grew up as a lawyer
with Ernest, but it's time for him to move on and for me to move on
professionally."
Blank admits his success in freeing Willis has led to a minor bit of
celebrity among prisoners on death row, many of whom are now writing and
phoning to seek his help. Asked if he might consider taking on another
death penalty case, Blank notes the years and money it took to win Willis'
case. "I might do it again," he finally allows. "But not right away."
As for Willis, he's living in Mississippi with his wife near her family
and contemplating his next move. He's 59 now, with a bad back, diabetes,
and a strange kind of postprison vertigo that makes him weave when he
walks ("I didn't walk more than 60 feet at a stretch for 17 years," he
notes). He's thought of suing Texas, but isn't sure it's worth the
trouble. People call wanting to write stories or books about his life, but
he's not sure he's up for that quite yet, though if someone makes it worth
his while, he says, he couldn't afford to pass up the money.
Mainly, like Jim Blank, he wants to get on with his life and put the past
-- Texas, death row -- behind him. As for the lawyers who worked so many
years on his behalf, Willis says he considers them more than friends; they
are family. "One thing's for sure," he adds, "without them I probably
wouldn't be talking to you now."
WHAT IT TOOK
The scope of Latham & Watkins's investment in the Willis case
Years: 9
Hours: 8,431 (including staff and paralegal time)
Lawyers: 32 (including summer associates)
Expenses: About $3 million
Trips to Texas: 14
Outside Experts: 6
Visits to Death Row: 4
(source: The American Lawyer)
*************************
A CRY IN THE DARK
Alexander Villegas lived for just 10 weeks.
While most newborn babies are kissed and held, fussed over and cooed at,
baby Alexanders life experience can only be described as terrifying.
Every time his diaper was changed or he was lifted from his crib for a
feeding, his fractured ribs had to have caused him great pain.
Alexanders ribs would start to heal, then new fractures would appear.
Eventually, his baby leg and an arm would bear broken bones as well.
On Nov. 13, 2003, Alexanders tiny body gave in.
An ambulance transported the 2-month-old to McAllen Medical Center after
he was found in his crib not breathing, according to medical and court
records obtained by The Monitor.
Dr. Wilson Sy examined Alexander, and his written notes tell the
horrifying story.
"Baby is in deep coma with no reaction at all to stimulation," Sy wrote.
"Rib fractures, some twitching of the shoulder area that does not stop
with holding, healing fractures in other part of body.
"The enlarged liver is difficult to explain at this time," Sy wrote.
"Definitely child abuse is high in the list of possibilities. Sudden
Infant Death Syndrome (SIDS) is in the differential also, however we
should not expect those fractures. Again, everything put together, it
seems like this is a case of child abuse. Presently no clear suspect,
however the father was apparently the last one with the baby."
"The maternal grandmother helped take care of the baby until one week ago
when she got ill. And father has to take care of baby during daytime," Sy
wrote.
The father is 27-year-old Esteban Villegas, who, just weeks after
Alexanders death, was arrested and charged with the murder of his son.
He now must face a jury of his peers.
The capital murder trial against Villegas begins Tuesday in the 92nd state
District Court of Judge Ed Aparicio.
A 12-member jury and one alternate, selected last Tuesday, will begin
hearing opening arguments and testimony.
Villegas, of Alamo, has entered a plea of innocent, court records show. He
is represented by McAllen lawyer Fernando Mancias.
A Hidalgo County grand jury indicted Villegas on March 4, 2004. The
indictment shows the grand jury believed Villegas caused his sons death by
shaking him, hitting him with an unknown object or causing the baby to
strike an unknown object.
Alexanders mother, Anna Marie Moya, 27, also of Alamo, told Sy the baby
had been "a little fussy" in the days before he was taken to the hospital,
records show.
Moya is a speech therapist currently working at Stuart Elementary and
Valley Baptist Medical Center, both in Harlingen, court records show.
Moya refused a phone interview on Jan. 13 with The Monitor.
The doctors
The day after Alexander was brought to the hospital, as he continued to
fight for his life, he was airlifted from McAllen to Driscoll Childrens
Hospital in Corpus Christi.
Again, doctors suspected abuse, according to the medical file and the
court records. But the file also says that in addition to the abuse, the
baby was underweight, and doctors suspected he had been neglected as well.
His mother told Dr. Karl Serrao at Driscoll that she didnt think any of
her family, including her husband, could have abused the baby, medical
reports show.
"The physical, radiological and clinical findings are all consistent with
child abuse, as evidence is overwhelming," Serrao wrote.
Alexander wasnt at Driscoll very long before medical personnel came to the
same conclusion as Sy at McAllen Medical Center.
"Severe traumatic brain injury with loss of most brain stem functions,"
Dr. Michael Reardon, a neurologist, wrote in a consultation report
obtained by The Monitor. "Prognosis is grave and patient may progress to
brain death despite total supportive care."
Serrao confronted Villegas and Moya while both sets of Alexanders
grandparents were in the room. The babys maternal grandparents are Enrique
Moya Jr. and Maria Elena Moya, of Alamo, and the paternal grandparents are
Daniel Alamio and Guadalupe Villegas of Raymondville.
"I informed the family that this cannot be explained by birth trauma, that
the patient has no evidence of osteoporosis, and that the etiology of the
childs condition was being violently shaken on the day of presentation and
(cardiac) arrest," Serrao wrote. "With Rachelle Goldman, RN, in
attendance, I informed the family that the physical, radiological and
clinical findings are all consistent with child abuse, as evidence is
overwhelming."
Nurses were instructed to contact Child Protective Services as well as the
Alamo Police Department to update them on the childs condition, according
to Driscoll nurse Christine Ketchums handwritten notes, included in the
court file. Another notation says CPS wanted to be notified when the baby
died, court records show.
Alexander was declared brain dead and died after he was taken off life
support on Nov. 15, 2003.
Dr. Ray Fernandez, of the Nueces County Medical Examiners Office in Corpus
Christi, performed an autopsy on Nov. 17, 2003. Documents show Fernandez
found the cause of death to be "shaken impact syndrome."
Those autopsy results prompted the Alamo Police Department to arrest
Villegas in connection with Alexanders murder.
A death notice appeared free of charge in The Monitor on Nov. 19, 2003. An
obituary for Alexander, which must be paid for, could not be found in The
Monitors archives.
Both Memorial Funeral Home in San Juan, which handled the funeral
arrangements, and Resurrection Catholic Church in Alamo, which owns St.
Joseph Cemetery in Alamo, confirmed this week that Alexander is buried
there.
3 Monitor employees searched the cemetery over a period of two days, but a
marked burial site for Alexander could not be found. Several of the
smaller burial sites do not bear identification markers.
The cemetery is less than half a mile from the home where Alexander lived
with his parents and just a few blocks from his maternal grandparents
home.
The police
Sgt. Lupita Valdez, of the Alamo Police Department, said she has been
subpoenaed to appear and possibly testify at Villegas trial next week.
"We didnt have any history on this family prior to this incident," Valdez
said. "Nothing at all, no domestic (violence) calls, neither side of the
family is known as troublemakers."
Valdez, who investigated Alexanders death, described the babys parents as
"preoccupied with school." Both Villegas and Moya attended the University
of Texas-Pan American, and Moya was holding down two jobs at the time of
her sons death.
"If you look at the offense - shaken baby impact - what happens 99 % of
the time is the person who is with the victim last is the suspect," Valdez
said. "Thats because the babys brain goes into immediate trauma.
"The babys caretaker was his dad. The mother was not the primary
caretaker," Valdez said. "When we looked into the old fractures, and then
looked at the last injury - the fatal one - we were able to confirm that
she couldnt have been in the same location where the incident occurred.
"The time span didnt allow us to charge her," Valdez said. "We definitely
looked into her (Moya), too."
Valdez said she was not allowed to interview Moya as needed.
"We werent allowed a 2nd conversation with Anna Moya; she was protected by
her attorney," Valdez said. "We couldnt even talk to her to let her know
the condition of the baby when we arrived on the scene at the home, and
she seemed surprised to learn at the hospital that her son had (healing
fractures that indicated) past injuries.
"But when it came down to trying to interrogate her later, we werent
allowed even close enough to say, Hello," Valdez said.
Villegas family posted a $50,000 cash bond to secure his release, she
said.
"He didnt spend a minute in the county jail; the bond was waiting for him
at the sheriffs department when we were still processing him here," she
said.
The lawyers
Mancias, Villegas lawyer, said he has found a few holes in the
prosecutions case.
"The medical records out of McAllen show that one doctor thought the baby
was 4 to 5 months old," Mancias said. "The baby was just over 2 months
old, so the records arent flawless, by any means."
Mancias also said Villegas could not be held responsible for the death of
a child who possibly died of birth or genetic defects.
"Well be presenting some medical testimony that will show the injuries
received are consistent with some medical and scientific issues," Mancias
said. "On the moms side, there is a history of babies being born dead and
a history of SIDS.
"There is no explanation for it; it just happens," he said.
Mancias remains undecided on whether he will put Villegas on the witness
stand to testify on his own behalf.
"The prosecution has subpoenaed his wife, and the grandmother, who was a
caretaker," Mancias said. "But I havent made a decision yet about Mr.
Villegas and whether he will testify. It just depends on how it goes."
Mancias said prosecutors have singled out Villegas as the primary
caretaker, but that was not the case.
"The baby actually had four caretakers - the mother, the father and the
maternal grandparents," Mancias said. "If there was a primary caretaker,
it was the maternal grandparents."
The prosecutor is Assistant District Attorney Andrew Almaguer, who said he
is comfortable with the jury selected last week.
Like Valdez, Almaguer expressed frustration at gaining access to Moya and
to Alexanders grandparents.
"She (Moya) doesnt believe the father did it or that the grandparents, her
mom and dad, had anything to do with this," Almaguer said. "Theyre
sticking up for this guy, and they think all this happened at the time of
delivery, what they say was a difficult delivery.
"After the baby was released from the hospital, after the birth, a
pediatrician saw Alexander and he seemed to be healthy at that time,"
Almaguer said. "But the family has been far from cooperative. We had to
subpoena them just to talk to them ..."
Almaguer said Moya since has given birth to another child, who he believes
is about 3 months old.
"Theres a bunch of reasons that Im sure they will have for injuries on
(Alexander)," Almaguer said. "Theyre going to have their expert witnesses
and well have ours, so its going to be a battle of the experts.
"They have some theories that some of the babys ribs were cracked when CPR
was done. And the ribs that have healing fractures, they will say (those)
were the result of the babys delivery," Almaguer said. "Basically, thats
what I think their defense is going to be, and were prepared for that."
Mancias said he just wants a chance to present his case in an objective
courtroom.
"I hope the community will keep an open mind about this case," he said.
"There are defendants who have been convicted on shaken baby charges, and
once the proper evidence was presented, theyve been cleared.
"This is a gray area," Mancias said. "Its not as cut and dry as the
doctors want to make it to be."
(source: The Monitor)
************************
DA's history pointed at past drug problems
4 years after a tough-on-drugs campaign won him the district attorney's
office, Richard "Rick" Roach faces federal drug and weapons charges that
threaten to send him to prison and end his political career.
Law officers sealed the indictment against Roach, but details could
surface Tuesday at a hearing in Amarillo, about 50 miles southwest of
Pampa. The Republican prosecutor has been jailed since his arrest last
week on charges of possession of methamphetamine, cocaine and unlawful
possession of weapons by a drug addict.
Folks in the Texas Panhandle counties he represents say Roach's erratic
and aggressive behavior seemed worse over the past several months, but few
suspected drug use, even though he had dropped about 30 pounds and his
skin became sallow.
Last fall at his twin sons' high school football games in neighboring
Miami, Roach was the only person standing in the bleachers, yelling curse
words at referees and opposing teams and making those around him
uncomfortable.
In December, he appeared "wired" during a court hearing, fumbling through
papers and repeating what defense lawyers said until a judge told him to
be quiet, said attorney John Mann, the incumbent district attorney who
lost to Roach in 2000.
Outside another courtroom last month, Roach was jumpy and couldn't carry
on a coherent conversation, prompting several courthouse employees to
speculate that he was "on something," said Leslie Breeding, the Roberts
County attorney.
"There have been rumors for years, but this time it was so pronounced and
so obvious it really couldn't be ignored," Breeding said.
Roach's attorney, Bill Kelly, declined to comment.
Rebecca Bailey, a secretary in Roach's office, said she saw him use
methamphetamine at an apartment twice in the last month, and just two
weeks ago saw him take the drug out of his office desk and prepare to use
it before she left the room. Her statement is in a signed affidavit filed
after Roach's arrest as part of a petition by Gray County Attorney Joshua
Seabourn to have Roach removed from office.
Bailey and others who work in Roach's Pampa office declined to comment for
this story.
David Holmes, an assistant prosecutor under Roach between 2001 and 2003,
said he never suspected drug use. He said Roach at times was friendly and
talked about his Christianity - he even sang a few times in a gospel music
band.
But more often Roach was demeaning, controlling and paranoid, he said.
Roach started locking the main door at his courthouse office, requiring
any visitor to knock before seeing the receptionist. Every Friday
afternoon, he sent his staff home and stayed alone in the office, where he
kept several loaded handguns.
In the counties Roach serves - Gray, Roberts, Hemphill, Lipscomb and
Wheeler - most criminal prosecutions are drug related. Roach prioritized
the cases, even over sexual assaults and other felonies, and demanded
prison terms of up to 99 years for drug offenders, Holmes said.
Roach rarely tried cases himself, but he kept tight reins on his
assistants to make sure they were tough, Holmes said.
"In my opinion, his position on drugs was politically motivated to make
him look good," said Holmes, now an attorney in nearby Borger.
But Roach's problems didn't begin in the Panhandle, according to former
acquaintances.
He was an attorney in Breckenridge, about 90 miles west of Fort Worth,
before moving to Roberts County. There, in the late 1980s, he told people
there he was going to get help for a drug problem.
"He admitted he had gotten addicted to speed and said he went to a drug
rehab center," Breckenridge attorney Jimmy Browning said. "It was a pretty
heartfelt confession. He said it was wrong and that he was sorry."
Roach then worked 10 years as the Roberts County attorney based in Miami,
pronounced "my-AM-uh," a town of nearly 600 people about 25 miles
northeast of Pampa. He lived there with his wife and 3 sons.
When Roach first ran for district attorney in 1996 against Mann, who had
been in office since 1992, some newspapers wrote stories about his 1988
indictment on a felony charge of stealing and selling natural gas. The
Stephens County case was dismissed in 1991 after Roach, who then worked
with an oil and gas business, paid about $2,400 in restitution.
The papers also reported about Roach's 1975 drunken-driving arrest in
Lubbock. Roach told The Canadian Record newspaper in Canadian, a town near
the Oklahoma border, that he later went through treatment for alcohol
abuse and was taking medication for clinical depression.
The newspaper asked Roach about any drug use. Roach denied using cocaine
but said that while serving in the military, "I succumbed to peer pressure
and ended up getting involved with marijuana and some amphetamines."
"I feel like it was wrong, that it was a mistake," Roach told the
newspaper in 1996.
Roach lost the election, and a year later he sued The Canadian Record and
The Pampa News for libel. Both cases were dismissed in 1998.
When Roach challenged Mann in 2000, information about his past surfaced
again, but he kept campaigning on promises of being a tough, full-time
prosecutor. Mann worked part-time and had a civil practice on the side, as
was allowed.
Roach was elected by a small margin, and he was re-elected in November.
"That's the thing about people in a small town: They don't pay much
attention to a man's past," Roberts County Judge Vernon Cook said. "It's
what's in the present, and Rick was doing his job for us."
Roach's wife, Cynthia Roach, filed for divorce in 1987, citing Roach's
"ungovernable temper." She said she feared for her and her children's
safety, but the case later was dropped, according to Stephens County court
records. She filed for divorce again in 1989 and was granted a temporary
restraining order against her husband, but she dropped the cases in 1991,
according to court records.
In 2003 Roach and his wife bought a spacious house in an upper
middle-class neighborhood just outside Pampa. In October, Gray County
sheriff's deputies responded to a 911 call there, but no one was arrested
and a report was not written, Sheriff Dan Copeland said. He declined to
elaborate, saying the FBI told him not to discuss Roach. Cynthia Roach
also declined to comment for this story.
Roach apparently moved out of house last fall and stayed at a motel in
town. He recently may have lived at an apartment rented by his office as
temporary housing for a new assistant prosecutor, who quit after a few
weeks. That apartment is where his secretary said she saw him inject
himself with drugs.
"How could someone deceive so many people?" said Harley Knutson, whose
45-year-old son, Michael, was prosecuted by Roach last summer for
possession of methamphetamine and sentenced to 10 years in prison.
"Any time somebody you have respect and admiration for turns out to be
something other that what they claim to be, it sure hurts, and that's what
our community is feeling right now," Knutson said.
(source: Associated Press)
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TEXAS COALITION TO ABOLISH THE DEATH PENALTY PRESS RELEASE
CONTACT: Rick Halperin, President, TCADP
214-768-3284
[email protected]
www.tcadp.org
***************************************************************
TEXAS COALITION TO ABOLISH THE DEATH PENALTY CALLS FOR SWEEPING REFORMS AS
NATION MARKS 28 YEARS OF EXECUTIONS
Jan. 14, 2005 - The North Texas chapter of the Texas Coalition to Abolish
the Death Penalty and the Dallas Peace Center will hold a press conference
at noon Monday, Jan. 17, to commemorate the 28th anniversary of the
resumption of executions in the United States and to call upon the Texas
Legislature to enact a sweeping set of reforms to the state's death
penalty statute.
The press conference, which will be held at the Dallas Peace Center, 4301
Bryan Street, Suite 202, will feature Rick Halperin, human rights activist
and president of the Texas Coalition to Abolish the Death Penalty.
Halperin, also representing Amnesty International, noted that the timing
of the press conference coincides with national commemorations of Martin
Luther King Day, adding that Dr. King was adamantly opposed to the death
penalty, and that a befitting tribute to him on this day would be to
remind the public that the death penalty is so riddled with flaws and
errors that it cannot be fixed and has no place in contemporary society.
On Jan. 17, 1977, the state of Utah executed Gary Gilmore by firing squad
after Gilmore dropped his appeals. Gilmore was the first person executed
in the United States after the U.S. Supreme Court in 1976 agreed to allow
executions to resume, after a hiatus of nine years.
Since then, 945 people have been executed in the United States, including
337 in Texas. By comparison, the next five states - Virginia, Oklahoma,
Missouri, Florida and Georgia have executed a combined total of 325
people.
TCADP is calling on Texas legislators pass legislation that would raise
the minimum age of execution eligibility in Texas from 17 to 18; prohibit
the execution of foreign nationals on death row whose rights were violated
under the Vienna Convention; allow for people on death row and their
attorneys to meet in person with members of the Texas Board of Pardons and
Paroles and to participate fully in clemency hearings; and prohibit the
execution of people with severe mental retardation or mental illness.
Better yet, said TCADP's Halperin, the Texas Legislature should consider
measures to impose a moratorium on executions or abolish the death penalty
altogether.
"The time has come to have no executions, no exceptions, and no excuses,"
Halperin said. "We have experimented with state killing for 28 years now.
During that time, we have put to death people who were severely mentally
ill, mentally retarded, juveniles and even people who were innocent of the
crimes for which they were convicted. The system has been an abysmal
failure and there is no further justification for perpetuating a flawed
system which is based on hate, rage and terror."
