Feb. 26
TEXAS:
Group plans death penalty protests
In Edinburg, a new local capital punishment group plans to hold a vigil
every time Texas executes a death row inmate.
On Thursday, Steven Kenneth Staley was scheduled to be executed for the
1989 shooting of a Fort Worth Steak & Ale manager in a botched robbery,
but his execution was halted after he was determined mentally ill.
Still, about 20 members of the newly formed Rio Grande Valley chapter of
the Texas Coalition to Abolish the Death Penalty stood in front of the
Hidalgo County courthouse waving anti-death penalty signs.
The group, formed last month, hopes to educate Valley residents about
capital punishment in Texas, said the Rev. John Lasseigne, the priest of
St. John the Baptist Catholic Church in San Juan. The Catholic Church
opposes the death penalty, and Lasseigne participated with the death
penalty opposition group in Houston, before moving to the Valley 3 years
ago.
"We have an increasingly large number of Valley residents on death row. It
affects their families," he said. "They are completely unfamiliar with
this whole experience, what they consider to be the injustice of their
relatives sentencing."
Since the death penalty was reinstated in 1976, Hidalgo County juries have
sent 15 men to death row; two have already been executed, 3 have had their
sentences commuted and 10 are awaiting execution.
4 of the men on death row are accused members of the Tri-City Bomber gang
convicted in connection with two multiple homicides that occurred in 2002
and 2003.
The group, which now consists of about 20 people, many of whom have ties
to Valley death row inmates, plans to meet in front of the Hidalgo County
Courthouse at 5 p.m. the day of a scheduled execution to protest.
At 6 p.m., around the time of the execution, they will pray. They have
already done this twice.
Lasseigne noted the organization is open to anyone opposed to the death
penalty and aims to educate people about how the death penalty operates,
how it is applied and how it affects the families of those sentenced to
death.
He said they do believe that those who commit murder should be punished,
but does not belive that the death penalty is the answer.
"I havent always been against the death penalty," said Margaret Everheardt
of McAllen. "Ive come to believe by killing people we dont allow them to
get to the spiritual place they would have if they had lived."
Everheardt feels that even Timothy McVeigh, executed in 2001 for the
Oklahoma City bombings 6 years earlier, would have lived to regret his
crimes if he had been forced to live with the pictures of his victims for
the rest of his life. Instead, he died a martyr for his cause, she said.
(source: The Monitor)
***********************
Death row inmates share identical appeals----20 pages of death row
inmates' appeals are identical, even errors
Angel Maturino Resendiz, the train-hopping "Railroad Killer" from Mexico,
randomly murdered at least 9 people in gruesome fashion in the late 1990s.
Robert Gene Will, a young car thief sporting tattoos of a handgun and the
Grim Reaper, was convicted of fatally shooting a Harris County deputy in
the face.
The 2 men have little in common beyond an address on Texas' death row -
and one other curious detail. The bulk of their legal briefs, filed 1 1/2
years apart by a Houston lawyer appointed to appeal their cases, are
word-for-word identical, right down to a capitalization error on page 17.
Labeled "generic" and "lackluster" by another death-penalty defense lawyer
in court documents, the relatively brief appeals avoid common
death-penalty arguments: questions of mental illness, mitigating
circumstances or other specifics designed to show why a defendant should
be spared execution.
Instead, the appeals focus primarily on a single technical challenge to
Texas law on death-penalty jury instructions, without mentioning Resendiz
or Will by name or referring to their trials. Both also list incorrect
conviction dates for the men.
What's more, the appeals' author, Leslie Ribnik, missed routine filing
deadlines to move Resendiz's case into the U.S. courts. Deprived of any
federal review of his appeal, Resendiz faces an accelerated May 10
execution date.
Critics call Ribnik's effort, or lack of it, another blot on Texas'
capital punishment system, which relies on court-appointed defense lawyers
of varying experience, skill and motivation.
Much of the scrutiny has focused on trial lawyers, most famously the
Houston attorney who napped repeatedly during a 1984 case, but attention
is shifting to the quality of appeals, an inmate's last chance to correct
trial mistakes or establish innocence.
Ribnik, 52, defended his duplicate appeals, known as writs of habeas
corpus, saying they raise a valid and intriguing constitutional point
germane to both cases.
"I do not apologize for it. I think it's a good argument. If I got another
habeas case today and had the same issue, I would do it again, because the
law has not changed," he said.
Resendiz's 20-page writ is identical to the first 20 pages of Will's writ,
except for the inmates' names and legal histories. Will's writ adds eight
pages challenging the prosecution's attempt to link his tattoos with gang
symbols.
Ribnik said that a thorough review of the cases found no other legitimate
issues to pursue.
"Some lawyers will throw in the kitchen sink. They'll make arguments they
know are dead-end arguments. I just don't do that," said Ribnik, a solo
practitioner and 16-year criminal lawyer. "I make arguments I can make to
the (U.S.) Supreme Court or the (Texas) Court of Criminal Appeals with a
straight face."
Even so, Resendiz has new lawyers. Will might follow suit.
'Abdication of duty'
In Texas, a death sentence is followed by a direct appeal, in which
lawyers ask the Court of Criminal Appeals to review perceived legal errors
in the trial. These limited procedural appeals rarely succeed.
Next is the habeas review, a far more free-wheeling forum where new issues
can be introduced, including claims of innocence.
If rejected by the Texas Court of Criminal Appeals, the habeas writ may
proceed to the federal courts, then the 5th U.S. Circuit Court of Appeals
and the U.S. Supreme Court.
Properly done, a habeas writ requires a lawyer to reinvestigate the case
in search of mitigating issues such as mental illness or childhood abuse.
>From DNA to witness tampering to evidence withheld by the prosecution,
it's all fair game.
But habeas comes with a catch that can doom inadequate writs.
Except in rare circumstances, the Texas court does not accept amended
writs, and the federal courts will consider only those arguments included
in the state writ.
It amounts to a 1-shot opportunity for death row inmates, one that many
court-appointed lawyers fall short on, according to a 2002 study by the
Texas Defender Service, a nonprofit group that represents death row
inmates.
The study, titled "Lethal Indifference," found that 39 percent of habeas
writs filed from 1995 to 2000 included no appropriate claims, allowing the
courts to dismiss them out of hand. Another 30 % were 30 pages or less.
Ribnik did not represent Resendiz or Will during his trial but was
appointed later to pursue appeals. He was replaced as Resendiz's lawyer in
December after a federal judge in Houston deemed his performance poor and
ineffective.
Resendiz's new legal team went farther, calling Ribnik's petition generic
and his work "an abdication of duty, worse than no representation at all."
Ribnik "filed a petition whose argument said nothing about Mr. Maturino
Resendiz himself. . . . He did not protect his client's right to appeal,"
according to a brief filed on Resendiz's behalf by Robert Owen, a
University of Texas adjunct law professor.
Because Ribnik blew several filing deadlines, Resendiz's federal appeal
has been dismissed.
But Owen's brief asks the 5th U.S. Circuit Court of Appeals to resurrect
it, arguing that the inmate should not be penalized for Ribnik's failure.
Though clearly unenthusiastic about Ribnik's one-issue writ, Resendiz's
new legal team thinks any review is better than none at all.
"Especially if you are going to execute somebody, my goodness, he ought to
have every appellate review available to him under the law," lawyer Jack
Zimmermann of Houston said.
Ribnik said he apologized directly to Resendiz for his procedural
mistakes.
"This is terribly embarrassing, not my usual work," he said. "Mr. Resendiz
and the public deserve better."
Will has asked California lawyer Richard Ellis to handle the next step of
his appeal if Ribnik is unsuccessful at the Texas Court of Criminal
Appeals, Ellis said.
Although troubled by news of Ribnik's duplicate appeals, Ellis said he was
more concerned with an apparent lack of substance in Will's state habeas
writ.
"It seems a little thin. I average filing around 400 to 450 pages on
habeas writs, not including exhibits, which can be another 1,000 pages,"
Ellis said.
Ribnik said he has a problem with the criticism by Ellis, who had not
contacted him to discuss the case.
"He never got a review of what work I did or didn't do in the case, what
points of error I considered or rejected," Ribnik said. "So I feel a
little disarmed here."
Crucial questions
Ribnik dismissed length as a measure of a habeas writ's quality.
Nor was he bothered by criticism that the writs' main argument made no
mention of Resendiz or Will.
"It didn't really turn on the facts of the particular case: the
defendants, personalities, history," he said. "I challenged the law as
written."
Ribnik's argument centers on the 3rd of 3 questions posed to juries
considering the death penalty.
First, jurors are asked to determine whether the defendant poses a threat
of future violence and then whether the defendant did the actual killing
or intended that a life be taken.
If they answer yes to both, jurors move to a third question: Are there
mitigating circumstances, such as mental illness, that warrant a life
sentence instead of execution?
Prosecutors must prove the first 2 questions beyond a reasonable doubt.
The mitigation question, however, is left to the accused to prove, a
situation that improperly removes the burden of proof from the prosecution
in violation of the Constitution's guarantees of due process and right to
trial, Ribnik claims.
"I think the mitigation issue is a damn good one that deserves review by
the Supreme Court at the very least," Ribnik said.
Resendiz's new attorneys would not directly discuss Ribnik's habeas writ.
But their latest court brief notes that the U.S. Supreme Court has been
open to similar mitigation claims and is now reviewing a Kansas case that
could validate Ribnik's views.
Yet his new lawyers also contend that Resendiz is mentally ill, a
well-established mitigating factor that can lead to reversal of death
sentences.
That argument might never be heard by any court, because Ribnik did not
include it in his original writ.
Will, during his trial, said a fellow car thief shot and killed Deputy
Barrett Hill, an innocence claim that typically would be included in the
habeas writ.
Ribnik, however, said his writ has every worthy issue found during an
investigation that included extensive questioning of Will, his family and
his trial attorneys.
"I wish I found somebody who can't live with himself and (confessed) in
one of those Matlock or Perry Mason moments," Ribnik said. "Wishing don't
make it so."
Ribnik said he hired no outside investigators or experts to review Will's
case but denied that it indicates a lack of effort. He said his review of
the trial record found that potentially mitigating evidence, including
childhood sexual abuse, was adequately introduced and considered at trial.
"I will own up to my screw-ups; I'll take my lumps. I certainly deserve
them in Resendiz," Ribnik said. As for Will, he said, "I think I did a
good job on that one."
(source: Austin American-Statesman)
***************
Cellmate says Neal bragged of slaying
A former detainee at the Bexar County magistrate's office testified Friday
that his cellmate, Ronnie Joe Neal, openly bragged about killing Alamo
Heights teacher Diane Tilly even though she tried to persuade him to spare
her life.
The witness, Albert Mendiola, said Neal described how he forced Tilly at
gunpoint to cross a wet field, and as they walked together, she asked for
his mercy.
"He said she told him, 'You still got time to change your mind,'" Mendiola
said.
But according to Mendiola, Neal told Tilly that he couldn't risk the
possibility of her telling police.
"He said, 'Just be quiet. Keep walking,'" Mendiola said.
His testimony capped the 1st week of Neal's capital murder trial, which
featured a detailed account of the killing from Neal's admitted
accomplice, his 16-year-old daughter Pearl Cruz.
Tilly vanished two days before Thanksgiving 2004, setting off a widely
publicized search that lasted nearly two weeks. It ended when Cruz guided
investigators to the field in Schertz where they found Tilly's body
covered in tree limbs.
According to Mendiola, Neal struck up the conversation in jail by asking
if he recognized him from the news.
Mendiola said Neal talked at length, sometimes in a hushed voice, about
how, with the help of his daughter, he had robbed and raped Tilly at her
home, and how he had taken pains to cover his crimes.
Mendiola, who had been arrested and charged for 2 aggravated assaults the
night he met Neal, said he waited two days before he reported the story to
investigators.
"I just couldn't live with it," Mendiola said. "Nobody deserves to die the
way she did."
Neal's attorney, Joel Perez, questioned Mendiola's motivation for stepping
into the witness chair. Perez emphasized that Mendiola is a convicted
felon and that, in exchange for his testimony, a sheriff's detective had
offered to drop the charges against him.
Prosecutors told jurors that Mendiola declined the offer, and charges
against him eventually were dropped because the witnesses didn't
cooperate.
Mendiola said that at first, Neal showed concern about the search for
Tilly, and asked about how long it takes for a body to deteriorate.
"I told him if they don't find the body, they might let you go," Mendiola
said. "After that, he just started telling me how he did it."
(source: San Antonio Express-News)
********************
2 portrayals of 1 defendant
In Fort Worth, defense attorneys have characterized Stephen Barbee as man
who lost his way but is still worth saving.
Prosecutors have portrayed him as a cold-blooded killer who deserves to
die.
A jury will soon have the final say.
On Monday morning, the panel is expected to begin deliberating Barbee's
fate for smothering Lisa Underwood, 34, the co-owner of Boopa's Bagel Deli
in north Fort Worth, and her 7-year-old son, Jayden, a first-grader at
North Riverside Elementary School.
Underwood was 7 1/2 months pregnant with a girl she had planned to name
Marleigh.
During the 4-day trial, prosecutors Kevin Rousseau and Dixie Bersano
maintained that Barbee, believing that Underwood was carrying his baby and
would expose his infidelity to his new wife -- went to her home early Feb.
19, 2005, and beat her, giving her a black eye and broken arm.
Then, prosecutors said, he smothered her by holding her face to the floor
for several minutes.
They told jurors that Barbee didn't realize that Jayden was home until the
terrified, pajama-clad boy walked into the living room crying.
"Some stranger was killing his mommy," Bersano said, her voice rising
during her closing argument Thursday. "He was screaming. He was a witness.
He turns on Jayden and killed him by smothering him."
Afterward, Barbee used cleaning supplies to try to clean up the blood and
loaded the bodies in Underwood's sport utility vehicle. He drove them to
rural Denton County, where he buried them in a shallow grave and dumped
the SUV in a creek.
Ron Dodd, Barbee's friend and employee, is accused of meeting Barbee at
the burial site and helping conceal the bodies. He has been charged with
two counts of tampering with physical evidence and is free on bail
awaiting trial in Denton County.
For jurors to sentence Barbee to death, they must find that he is a
continuing threat to society and that there are no mitigating factors in
his character or background that would make a life sentence more
appropriate.
In their effort to spare Barbee's life, defense attorneys Bill Ray and Tim
Moore have called friends, family, ex-girlfriends and Barbee's pastor's
wife, all of whom said they love him and will continue to support him.
Some testified that Barbee emotionally shut down after his pregnant sister
died of a virus and, two years later, his brother died in a car wreck.
Barbee was a teenager at the time.
Others told jurors that, at the time of the slayings, Barbee, a former
reserve police officer, was under an enormous amount of pressure. He was
arguing with his wife, Trish, as well as his ex-wife and business partner,
Theresa, and had just found out that his father had cancer.
He was also having terrible headaches, which started several weeks earlier
when a pipe fell on his head, knocking him unconscious, one witness said.
On Friday, the defense called Susan Perryman-Evans, a former prison
warden, to address whether Barbee would be a future danger to society if
he received a life sentence. Among other things, she talked about how much
training prison guards receive, how inmates are housed and what happens if
they violate a rule.
She told the jury that a problem inmate can be placed in a solitary cell,
away from the general population, for 23 hours a day for up to 2 weeks.
On cross-examination, Rousseau pointed out numerous high-profile cases in
which prisoners escaped or raped or murdered other inmates or guards. He
suggested that the securest place in the prison system is death row.
After the defense rested, Rousseau called one final witness.
Bruce Cummings, a private investigator and a familiar face around the
courthouse, was Jayden's coach in a youth soccer league.
"He was not one of the strongest players I had," Cumming told jurors, his
voice quivering. "But he gave effort."
Moments later, Rousseau flashed a photo of Jayden's soccer team on a large
screen in the courtroom.
Jayden -- dressed in his blue soccer uniform, his foot resting on the ball
-- stood in a line with his teammates, smiling out from underneath his
glasses and a mop of hair.
Closing arguments are expected to begin at 9 a.m. in state District Judge
Bob Gill's court.
(source: Fort Worth Star-Telegram)
*************
Jury to decide killer's sentence----FW: Testimony ends in punishment phase
of murder trial
Testimony in the punishment phase of convicted capital murderer Stephen
Barbee's trial has wrapped up, and the jury is to begin deliberating
Monday on whether he should live or die.
The jury's only punishment options are life in prison or the death
penalty. Mr. Barbee was convicted Thursday in the February 2005
suffocation deaths of Lisa Underwood, who was 7 months pregnant, and her
7-year-old son, Jayden.
The testimony Friday afternoon mostly centered on Mr. Barbee's future in
prison. Former Texas prison warden Susan Perryman-Evans said criminals
serving life sentences often change when they are placed in a highly
controlled environment and removed from the pressures of the outside
world.
"They sometimes mellow," she said of some of the "lifers."
During 2 hours of testimony on behalf of the defense, Ms. Perryman-Evans
spoke about the tightening of prison rules that keeps murderers from
enjoying some of the freedoms that other inmates can earn.
Prosecutor Kevin Rousseau asked Ms. Perryman-Evans, who is running for
Anderson County judge, whether she was familiar with the 7 inmates who
broke out of prison in South Texas in 2000 and murdered Irving police
Officer Aubrey Hawkins.
He also quizzed her about cases in which inmates killed or sexually
assaulted guards.
"There are failures from time to time?" Mr. Rousseau asked the witness.
"Yes," she responded.
During earlier testimony, witnesses spoke about Mr. Barbee's violent
temper.
His 1st wife said he assaulted her several times, and an acquaintance said
Mr. Barbee yelled profanities at her when she turned down his romantic
advances.
A Fort Worth homicide detective testified that the newly married Mr.
Barbee said he killed Ms. Underwood to save his marriage. Ms. Underwood
believed that Mr. Barbee was the father of her unborn child, and he was
afraid his second wife would find out.
DNA testing introduced in the trial showed that Mr. Barbee was not the
father.
On Friday, as testimony in the punishment phase was ending, the defense
called a court bailiff as a witness. He testified that Mr. Barbee had not
caused any trouble or acted violently during the trial.
Testimony ended Friday with the prosecution showing the jury a picture of
Jayden taken with his soccer team.
(source: Dallas Morning News)
*****************
State court set to hear Cobb appeal
A state appellate court hears oral arguments Wednesday in Texarkana on
whether Lamar County District Attorney Gary Young should be barred from
prosecuting Christopher Cobb for capital murder in the August 2004
slayings of his great-grandparents.
Defense attorney Steven Miears of Bonham, says it would violate Cobbs
constitutional rights for Young to prosecute his client because the
district attorney once represented Cobb in his divorce and in a felony
forgery case. Young gained information and insight to Cobbs life that the
prosecutor is not entitled to, Miears said.
The prosecution is seeking the death penalty for Cobb.
Miears sought Youngs recusal on several occasions last year, but state
District Judge Jim Dick Lovett denied the request on more than one
occasion.
Jury selection was scheduled to start last Tuesday, Feb. 21, but on Feb.
13 Miears filed a motion with the Texarkana appellate court, seeking a
writ of mandamus to force Lovett to order Young and his staff off the
case.
2 days later, on Feb. 15, the Texarkana court ordered all trial
proceedings, including jury selection, halted until it had a chance to
review Miears' motion.
Then last Monday, Miears asked the court to hear oral arguments on the
case. On Wednesday, the court agreed, announcing it would hear oral
arguments this coming Wednesday. Proceedings in Texarkana are scheduled to
begin at 1:15 p.m. Wednesday.
"Each side will get 20 minutes," Young said. "Mr. Miears will argue for 20
minutes, then we will argue for 20 minutes. The court will ask us
questions, and then he (Miears) gets 10 minutes rebuttal," Young said.
Then, the court will take some time and will announce its decision,
hopefully within a few days.
"This court has always been good about getting its opinions out quickly
once oral arguments are heard. It's an expedited process," Young said.
Either side can appeal the decision to the Texas Court of Criminal
Appeals, delaying the actual start of the Cobb trial further.
"I don't know if Mr. Miears will appeal it to the State Court of Appeals
if the (Texarkana) court denies his request. I suspect he would. If the
court grants the request, we will appeal it to the state court of
appeals," Young said.
Just because the 6th Court of Appeals decision likely will be appealed to
the Texas Court of Criminal Appeals - either by the prosecution or defense
- does not mean a long delay.
"Typically, the State Court of Criminal Appeals makes decisions on these
things in, say, a week or 2," Young said.
Should the defense prevail with its insistence that Young and his staff be
barred from prosecuting the case, Young would probably ask the attorney
generals office for assistance.
"A lot of small counties don't have the resources and experience in the
prosecutors office to try a capital murder case. If I was here by myself,
that would be the situation here. The attorney general's office has a
capital murder assistance section where they go around the state, helping
when it's needed. We would ask assistance from them," Young said.
At one time, jury selection in the Cobb trial was planned for November, as
the first major trial in the renovated Lamar County Courthouse. But the
opening of the new courthouse was delayed and now is not expected until
May or June.
"We decided we could no longer wait for if and when we got into the new
courthouse. But we may go back to that now. If we're going to be in the
courthouse in the next few months, I would prefer now that we wait and
just do it all in the new courthouse," Young said.
"I would hope that we would have this issue (before the appellate court)
resolved by the end of March," he said.
"If you read our response to Mr. Miears motion, we're arguing that the
remedy he is asking for should not be granted. Basically, the judge had a
hearing on the motion, listened to the evidence, and at his discretion -
which is what his job is - he ruled," Young said.
"You're not supposed to now be able to go to an appellate court and stop
the trial process, and that's what Mr. Miears is trying to do. Any appeals
are supposed to come after the trial."
A motion for a writ of mandamus, the district attorney said, "is for when
you're allowed to do something by law and the judge won't allow you to do
it. Something the law says very clearly youre entitled to but aren't
given."
Once the issue is resolved, a new jury pool will be drawn up and jury
selection will follow.
But that will be a month or 2 down the line, at the earliest.
With the Cobb trial on the schedule, most other cases were delayed for a
later time. Now, with the Cobb trial on a back burner, other cases are
being expedited again.
(source: Paris News)
**************
Friedman may testify for Soffar----Gubernatorial candidate believes the
convicted triple-murderer is innocent
If asked, independent candidate for governor Kinky Friedman will do his
part to keep convicted triple-murderer Max Alexander Soffar from receiving
the death penalty, Friedman's office said Friday.
Friedman is one of several witnesses Soffar's attorneys may ask to testify
Monday during a trial to decide whether he will receive life in prison or
a death sentence.
Soffar, 50, was convicted Thursday in the slaying of three people during
the robbery of a northwest Houston bowling alley more than 25 years ago.
Soffar attorney John Niland told state District Judge Mary Lou Keel on
Friday that the defense may call Friedman to the stand because "He and Max
are friends."
Friedman spokeswoman Laura Stromberg said the candidate believes Soffar is
innocent.
Friedman has championed Soffar's innocence in numerous publications and
mentions Soffar's case in his 2005 novel Ten Little New Yorkers.
Stromberg said Friedman was unavailable for comment. But he told
interviewer Craig McDonald last year on Amazon.com that his support for
Soffar had nothing to do with the governor's race.
"Right, I'm not anti-death penalty, but I'm damn sure
anti-the-wrong-guy-getting-execu- ted and Max is the wrong guy," Friedman
told McDonald.
Assistant District Attorney Lyn McClellan told the judge that he wanted
the defense to offer information "about what Kinky Friedman is going to
testify about other than a publicity stunt."
Soffar may have convinced Friedman of his innocence, but Soffar's lawyers
failed to move the 6 men and 6 women jurors who convicted him in the July
13, 1980, slayings of Arden Alane Felsher, 17, Stephen Allen Sims, 25, and
Tommy Lee Temple, 17.
The conviction was Soffar's 2nd. The 1st was overturned on appeal.
The same jurors who convicted him Thursday heard witnesses in the penalty
phase of the trial Friday. Among the witnesses were Soffar's sister,
Jackie Baker.
Baker contradicted testimony from a former girlfriend that Soffar shot his
Doberman pinscher in the head because it wouldn't stop pawing at its
bandaged ears after they were clipped. Baker testified that she owned the
Doberman and it died of old age, 11 years after its ears were clipped.
Other witnesses testified to his history of drug abuse, his numerous
arrests, a weapon found in his prison cell, his stay at the Austin State
Hospital, a mental facility, and his poor academic achievement.
(source: Houston Chronicle, Feb. 24)
