Jan. 21 TEXAS----impending execution amnesty international----UNITED STATES OF AMERICA Death by default 21 January 2005 AI Index: AMR 51/015/2005 On 2 July 1976, in Gregg v Georgia, the US Supreme Court lifted the moratorium on executions in the United States it had imposed four years earlier in Furman v Georgia. In the Furman ruling, the Court had found the death penalty to be unconstitutional in the arbitrary and capricious way in which it was being applied. Individual states moved to rewrite their capital statutes. In Gregg, the Supreme Court looked at some of those statutes and wrote: "The concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance, concerns best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of that information." Nearly 3 decades later, on 25 January 2005, Troy Kunkle is due to become the 947th person put to death in the USA since the Gregg ruling. He was sentenced to death under a statute that failed to ensure that the jury was given adequate information and guidance. Troy Kunkle's case is one of death by default. Some of his trial jurors say that they did not want to vote for death but had felt forced by the law to do so. At the other end of the process, a US Supreme Court Justice has explained that he and his colleagues cannot stop the execution because of a procedural obstacle blocking their way. This is "regrettable", he added, "because it seems plain that Kunkle's sentence was imposed in violation of the Constitution". Troy Kunkle was convicted in Texas in 1985 of the murder of Stephen Horton a year earlier. At the sentencing hearing, the prosecution argued for execution and the defence presented evidence for a life sentence. At that time, Texas capital juries were only asked two questions when deciding sentencing: whether the defendant had caused the death, and whether there was a probability that the defendant would commit future criminal acts of violence. An affirmative response to both questions resulted in a death sentence, regardless of whether the jury believed the defendant should get a life sentence. This procedure was found unconstitutional by the US Supreme Court in Penry v Lynaugh in 1989 on the grounds that juries were unable to give effect to mitigating evidence. The Texas statute was changed in 1991. Under today's law, Texas capital jurors are additionally asked whether they consider there is enough mitigating evidence to warrant a life sentence. At the time of the crime, Troy Kunkle was just over 18 years old, with no criminal record, and emerging from a childhood of deprivation and abuse. One of the jurors from his trial recalls: "At least two of us were inclined to give life, but that wasn't one of the questions". Another has said: "I was upset that I was put in that position-We just had to follow the law and answer the questions. I wish we would've had a choice to vote for life in prison." In its 1989 Penry decision, the US Supreme Court did not provide any guidance as to how the courts should deal with the cases of those people, like Troy Kunkle, who had been sentenced to death under the old, unconstitutional Texas statute. The state and federal appeal courts responsible for Texas capital cases therefore developed their own "screening" system for applying the Penry ruling. For the next 15 years, condemned prisoners in Texas sentenced before the law was changed appealed for new sentencing hearings. Several were executed. Troy Kunkle's appeal was rejected by the Texas Court of Criminal Appeals (TCCA) in 1993. Then in 2004, the US Supreme Court took such a case. In Tennard v Dretke, it found that the post-Penry "screening" system applied to Texas cases had "no foundation" in Supreme Court jurisprudence. In other words, the courts had been misapplying the Penry ruling. The Tennard decision stated that the only relevant screening question should have been whether the evidence presented in mitigation was of a type that might serve as a basis for a sentence less than death. Clearly, Troy Kunkle's youth and other mitigating factors presented at his trial were just such evidence. The unfairness of his case is compounded by post-conviction evidence that he suffers from schizophrenia, which the jury did not know. The Tennard opinion was handed down on 24 June 2004. At that time Troy Kunkle was facing execution on 7 July, and had already filed an appeal to the US Supreme Court based on the arguments that were then pending in the Tennard case. At the same time, his lawyers filed a petition in the TCCA. This was dismissed based upon a unique Texas procedural obstacle known as the "two forum rule", which barred simultaneous appeals in two courts. The US Supreme Court stayed the 7 July execution, but later dismissed the case without comment. Following the Tennard decision, Troy Kunkle's lawyers went back to the TCCA, asking it to remedy its 1993 mistaken application of the Penry ruling and this time to grant Kunkle a new sentencing. However, the TCCA dismissed the petition on the grounds that it violated the rule preventing individuals from bringing the same claim to the same court more than once. The federal courts are similarly procedurally barred. Such rules are supposed to be for reasons of efficiency, to prevent inmates from repeatedly filing a claim that they have already lost. It is clearly a nightmarish outcome when a condemned man runs into the cold fact that there is no exception granted where he earlier lost the claim because the court had misapplied the law. Troy Kunkle was given another execution date, 18 November 2004. Hours before it was due to be carried out, the US Supreme Court issued a stay. However, on 13 December, the Court announced that it would not consider the merits of Troy Kunkle's appeal. This time there was an explanation, given by Justice Stevens in recognition that "granting a stay of execution is not without costs". Justice Stevens explained that the Court did not have jurisdiction to reach the merits of Troy Kunkle's claim, because the decision of the TCCA not to stop the execution had been "independently based on a determination of state law" rather than on the merits of Kunkle's federal constitutional claim. Justice Stevens said that this procedural obstacle of state versus federal law prevented the Court from itself reaching the underlying claim, adding his comment that the death sentence had been unconstitutionally imposed. In other words, a review of the merits of Troy Kunkle's federal law claim would lead to a new sentencing being granted, as has occurred in several other Texas cases since the Tennard ruling. Instead he has been given a new execution date. Thus Troy Kunkle is ensnared in a tangle of procedural technicalities with his execution fast approaching. As would have concerned the Supreme Court in Furman v Georgia in 1972, an arbitrary and capricious death sentence has survived the appeals process intact. Amnesty International activists worldwide are urging the Texas clemency authorities to stop this killing in the name of fairness and decency. INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED KINGDOM ****************** Texas relies on technicality to push ahead with execution of mentally ill prisoner Amnesty International has issued an urgent appeal to the authorities in Texas to try to prevent the execution of a schizophrenic prisoner set to be lethally injected despite a US Supreme Court judge describing the execution as "unconstitutional". The 38-year-old prisoner, Troy Kunkle, who is on death row in Texas having been convicted of a murder committed in 1984, is set to be executed on 25 January. The state authorities are relying on a legal technicality to push ahead with the execution. Kunkle's death sentence was imposed without the original jury being asked to consider any mitigating evidence - a process later deemed unconstitutional in a legal change. The jury also never heard any expert mental health evidence. Since his conviction evaluations have indicated that Kunkle suffers from serious mental illness, including schizophrenia. Kunkle, who had no criminal record before the killing, had an abusive upbringing. When he was 12 his father's mental health deteriorated and he was subject to extremely violent attacks from his father. Attacks included his father slamming his head into walls and putting Kunkle into life-threatening chokeholds. His mother also suffered from serious mental illness and Kunkle's childhood was scarred by violence and neglect. A psychologist has concluded that an expert evaluation at the time of the trial would have been likely to have shown Kunkle's emerging mental disorder. Several of the jurors in his case have since indicated that they would have voted for life imprisonment if they had been allowed to give weight to mitigating evidence. In December the US Supreme Court expressed "regret" that despite Kunkle's sentence being "imposed in violation of the Constitution", it was unable to act because Texas had relied on a technical rule that prevents federal courts intervening on procedural matters. Amnesty International UK Director Kate Allen: "It is clearly wrong that Texas should rely on a legal technicality to push ahead with the execution of man whose history of childhood abuse and mental illness was never properly considered at his trial. "The Texas paroles board should recommend that the state governor commute Troy's sentence and failing that the governor should use his power to commute the sentence. "We wish to see the total abolition of the death penalty and this disgraceful case is just one of the reasons why." In November the Supreme Court stayed Kunkle's execution less than an hour before it was due to be carried out. Earlier in 2004 a legal decision had allowed several Texas death row prisoners to apply for new sentencing hearings to address the question of mitigating evidence not being considered by juries at their original trial convictions. Kunkle is being denied a new sentencing hearing on the basis that Texas court rules prevent inmates from repeat-filing a claim already lost, even though this had only been lost because of a longstanding misapplication of the law. Kate Allen added: "Texas is relying on a bizarrely rigid application of the letter of the law to press ahead with Kunkle's execution. It should now show that it understands the spirit of the law and allow Kunkle his constitutional rights. His execution would be a travesty, bringing nothing but shame on Texas." Executions in Texas constitute more than 1/3 of the total number of executions carried out in the USA - 337 out of 946 - since 1977. Many of these have been carried out in contravention of international standards. (source: Amnesty International) ************************ MOTION TO DELAY CAPITAL MURDER TRIAL DENIED A district judge denied a defense attorney's motion Thursday to delay the capital murder trial of a man charged with ordering a murder in Smith County. Houston defense attorney Shawn R. Roberts requested the judge continue the trial, set for March 21, for another 4 to 6 months. But 241st District Judge Jack Skeen Jr. said he believed the man has ample time to prepare for the trial since he substituted court-appointed attorney Jeff Haas in October. Warren, 28, is charged with the capital murder of Shaun Pickens, who was found gunned down a year ago in Smith County. Skeen administered the oath and invoked the rule of witnesses to more than 20 potential witnesses packed into his courtroom. He also ordered the group to return the day of the trial. About a dozen sheriff deputies were in the courtroom during the pre-trial hearing for Warren, who faces the death penalty if convicted. Roberts said he needed more time to investigate all aspects of the case, including serious allegations that his client threatened the lives of Federal Bureau of Investigation agents. "We've provided everything you can possibly imagine that would be relevant in this case," First Assistant District Attorney Brett Harrison said. Skeen did extend the deadline for filing pre-trial motions from Thursday to Feb. 1. All other set dates will remain the same, he said, including jury selection and the trial date. About 650 people have been summoned to appear on Feb. 10 for group voir dire. Those selected will return on Feb. 21 for individual jury selection. The attorneys went through stacks of jury summons that were returned to the court and excuses from potential jurors. Roberts said he believed Warren would be eligible for parole in the case but Harrison said the defendant had been convicted of a felony in 1996. Warren, the alleged leader of the Chapel Hill Hoover Five Deuce Crips gang, remains in the Smith County jail on $1 million bond. The defendant eluded authorities for seven months before he was arrested in Houston. His girlfriend, Lakeshia Shanaee Jones, 25, was also arrested in Houston and was charged with hindering his apprehension. Warren allegedly ordered the murder of Pickens in January. The New Chapel Hill man was found gunned down in the driveway of a Smith County home off of County Road 2209. He also allegedly ordered a "hit" on Andre Johnson in Gregg County in December and is responsible for bringing in large quantities of marijuana and cocaine for sale in Smith County, prosecutors said. Co-defendant Cornet Meekins' capital murder indictment was dismissed after agreeing to plead guilty to murder and he receives a life sentence once he testifies against Warren, they said. Bryson Carey and Meekins' common-law wife, Stephanie Campos, are in jail on capital murder charges. (source: Tyler Morning Telegraph) ************************* Chilling account of abuse----Dad's narrative tells of repeated violence that led to a girl's death A couple of hours after taking his unconscious 2-year-old daughter to a hospital, Frank Padilla calmly and methodically demonstrated to a police detective how he hit the child in the stomach with a closed fist because she wet her pants. In a 45-minute videotaped interview the evening of Aug. 8, 2003, Padilla sat slumped in a conference-room chair recalling the events that led to the eventual death of Linda Gloria Padilla. "I need to know how it is your little girl ended up in the hospital," League City police Detective Marty Grant told Padilla under questioning at the League City Police Department. "The little girl can't tell us or the doctors what's wrong with her. Her little body is screaming what has been done to her." At first, Padilla said the child had suffered a large bruise on her forehead after she fell off a kitchen counter as he tried to wash her hands a couple of weeks earlier. In the taped interview, which was to be the focal point of Padilla's capital murder trial next month, the man then admitted to punching his daughter in the stomach, slapping her on the face and head and sexually assaulting her. Padilla, 46, pleaded guilty earlier this month to capital murder and two counts of aggravated sexual assault and was assessed three life sentences. He likely will serve 70 years before being eligible for parole. He could have faced the death penalty had he gone to trial and been convicted. Linda Padilla's death highlighted flaws in a state child-abuse hot line system. Two months before the girl died, a pizza delivery man called the hot line after seeing the little girl with a black eye. Frank Padilla was trying to hide her from the deliveryman when he brought a pizza to the family's League City apartment, the deliveryman said. After hitting her 2 to 3 times in the stomach, Padilla said he got scared and drove his daughter to Christus St. John Hospital in Nassau Bay. She later was transferred to Memorial Hermann Hospital's pediatric intensive care unit. The girl died Aug. 13 after being taken off life support. An autopsy showed she had a broken pelvis, broken ribs, a fractured skull and bruises all over her body. While at the hospital, Padilla patiently waited his turn for care while he held the girl as if she were sleeping against his shoulder, an emergency-room doctor told the Chronicle. It wasn't until he answered all of the admitting nurses' questions and placed his daughter on a scale to weigh her that hospital personnel realized the severity of the girl's injuries. During the interview with police, Padilla never asked how his daughter was doing. "Just be honest," Grant encouraged Padilla while questioning him. With his arms folded, Padilla told Grant that the girl's lack of ability to control her bladder would sometimes cause him to lose his temper. "I've been trying to train her for months," he said. "Sometimes I spank her. I don't intend to hurt her." While being prodded by Grant, Padilla acknowledged that he would hit the child with his hand and leave his handprint on the girl's bottom. Padilla, however, said he was not sure whether her bruises were the result of his hitting her. 'I lose my temper' At one point in the interview, Padilla said he needed help. "I need to control my temper. I lose my temper with my daughter." Then Padilla told Grant how he jabbed the girl after she urinated on herself the afternoon of Aug. 8. "I punched her a couple of times in the stomach," he said. "But I didn't think it would cause any problems. She'd been crying all day. She peed and didn't tell us. I got mad." Grant asked Padilla to demonstrate how hard he had hit his daughter. With a closed fist, Padilla slammed his fist on the conference room table, causing it to bounce. Throughout the interview, Grant asked Padilla to demonstrate how hard he hit the girl, and each time he slammed the table. Each time the table bounced. On a scale of one to 10, with 10 being the worst, Grant asked Padilla to rank his anger when he struck his daughter. The man rated himself at a 7. Padilla said after he punched his daughter in the stomach, the girl vomited and fell over. An autopsy conducted on the child would show that the punches to her stomach broke her ribs, Grant said. "I didn't mean to hurt her in any way," Padilla said. During the violent abuse that day, the girl's mother, Magdalena Padilla, 33, was working at a Wal-Mart in Kemah. She is charged with injury to a child by omission. No trial date has been set although prosecutors expect to resolve the case by year's end. Grant asked Padilla whether his daughter was scared. His response: "Probably." Padilla also divulged that he had slapped his daughter on the face and the side of the head after she wet her panties. With the same force he demonstrated with a closed fist, Padilla slammed his open hand on the table to show how hard he had slapped the girl about 7 or 8 times. The slapping gave the girl 2 black eyes, Grant said. At one point in the interview, Grant, the father of two young children, left the room. The veteran officer said he had to calm down. Officers watching the interview in another room along with Grant went through stress debriefing after the interview. "It was hard on us. It still is," Grant said. Grant said among the child's injuries was a footprint from her father on the small of her back. The force caused the child's pelvis to break, he said. "He basically stomped her." The child also had signs of being shaken based on the severe hemorrhaging in her eyes, Grant said. Treatment became rougher After Grant re-entered the conference room, Padilla said, "I didn't intend to do anything. I thought she was passed out because she was tired. The last 2 weeks I've been rougher than I used to. "I know I'm a little rougher than I should," he said. "Every time this happens, it gets worse. I think about it, but at the same time I have anger inside of me and I wanted to release it. I really lost my temper for real this time. When I saw she wasn't waking up, I said, 'Come on, baby. Wake up. Don't do this to me.'" Padilla has 3 children from a previous marriage. They live with his ex-wife. He said he wanted Linda Padilla to have a normal life. "I'm not a child abuser or a child molester," he said. "I was always trying to be a good father." ******************* Files found for 7 death row inmates----Most misplaced HPD evidence sorted; leader seen for probe by April The cataloging of misplaced evidence in thousands of Houston Police Department cases is about 74 percent complete, Chief Harold Hurtt said Thursday. "We're moving forward, sorting through the boxes of evidence," Hurtt told the Houston Chronicle editorial board. The chief said the department hopes to finish sorting the evidence which dates to the 1970s - before a "project leader" is hired to investigate problems that have plagued the HPD crime lab for more than two years. Nine candidates have shown interest in the job, Hurtt said, and he plans to have the post filled by April. The previously lost evidence was in 280 mislabeled boxes found in the HPD property room in August. They sat unopened for a year, even as an effort by the Harris County District Attorney's Office to retest DNA from 379 cases - tested by the HPD's discredited and now-closed DNA lab - stalled because of missing evidence in 20 cases. The 280 boxes also contain evidence from 28 capital murder cases, including seven in which the defendants are awaiting execution. The seven convicted killers are: - Jimmy Jackson: for the July 1985 robbery-slaying of 54-year old Robert Lee Brown, a Houston cabdriver. - Roger Wayne McGowen: for the 1986 slaying of Marion Pantzer, 67, during the robbery of a bar. - Michael Wayne Norris: for the November 1986 slayings of Georgia Rollins, 38, and her child, Keith Emmanuel Rollins. - William Robinson: for the 1985 murder of Montrose waiter Steve Creasey, 26, during a 5-day crime spree. - Willie Washington: for the 1985 death of Kiflemariam Tareh, 27, an Ethiopian political refugee who was working at a grocery when Washington robbed it of about $100. - Arthur Lee Williams: for the 1982 killing of Houston policeman Daryl Wayne Shirley. - Bobby James Moore: for the 1980 slaying of grocery clerk James McCarble, 72. Harris County Assistant District Attorney Roe Wilson said attorneys for all 7 have been notified about the misplaced evidence, adding that the office is contacting attorneys for defendants who have either been executed or died while in prison. The attorneys are being given a description of what the previously missing evidence includes. Wilson, however, said none of the evidence in the 28 capital cases is new and that all of it was part of the record at the time of the trials. Nevertheless, at least one defense lawyer is eager to review the evidence. "This piques my interest," said attorney Mike Charlton, who represents Robinson. The District Attorney's Office contacted him via certified mail, he said. Robinson gave investigators a statement indicating he was the shooter, but Charlton said his client is mentally retarded. He thinks another person may have fired the fatal shot. (source for both: Houston Chronicle) ARKANSAS: Echols' request denied again, state high court wants DNA case resolved In Little Rock, the Arkansas Supreme Court has denied an appeal for a new trial from convicted child killer Damien Echols. The high court also used strong words to urge a circuit court to resolve Echols' two-year-old request for D-N-A testing. The 3 victims in the May 1993 slayings -- 8-year-olds Steven Branch, Michael Moore and Christopher Byers -- disappeared while riding bicycles in their quiet, tree-lined neighborhood in West Memphis. Their bodies were found the next day in a watery ditch near their homes. Echols, Jason Baldwin and Jesse Misskelley, all teenagers at the time, were convicted in the murders. Echols was the only one sentenced to death. Echols appealed to the Supreme Court for the 2nd time in October to retry his 1994 conviction in the death penalty case on the same two grounds. He alleged the jury at his trial convicted him based in part on a statement by Jesse Misskelley, 1 of 2 people charged with him, that was not admitted into evidence. He also claimed certain members of the jury were biased against him. The court turned away Echols' claims. (source: The Associated Press)
