[Deathpenalty] death penalty news------TEXAS

[Rick Halperin]

Nov. 11



TEXAS:

Unequal Justice: Murderers on Probation----Texas killers walk on
'misdemeanor murders'


Chapter 1 in a five-chapter series

The young man fights back during a robbery. Kill him.

The neighbor accuses you of stealing gas from his truck. Kill him.

The son you never wanted is yelling at your wife again. Kill him.

Your punishment in Texas, the nation's death-penalty capital? In each
case, it was probation.

UNEQUAL JUSTICE

Chater 1: Murderers on Probation

In many states, probation is a rare or impossible sentence for murder. But
a Dallas Morning News investigation found that it happened in Texas at
least 120 times from 2000 through 2006.

And Dallas County easily leads the way. It put more than twice as many
murderers on probation as it sent to death row. Nine percent of all murder
sentences in the county resulted in probation  that's 47 people released
to the streets.

"I think I should have went to prison," said Aaron Lamont Jackson, who got
probation for gunning down the robbery victim. "I deserved it."

Welcome to the other side of the Texas justice system.

This is where insiders speak of "misdemeanor murders." Where you can plead
guilty to killing someone in cold blood and never have a conviction appear
on your record. Where you can have a violent criminal history and get the
lightest of all sentences. Where innocent people sometimes pay the price
after you go free.

You don't need the finest lawyer money can buy.

You don't even need to pretend you're sorry.

"Ain't nobody ever said nothing to me for what I did," said Bobbie Joe
Jones, the man who shot his neighbor. "Everybody knows how stupid he was."

Not all the cases had confessions, physical evidence and witnesses, as Mr.
Jackson's and Mr. Jones' did. Evidence against some killers was weak. A
few had strong self-defense arguments. Prosecutors offered plea bargains
because they feared losing at trial.

Yet about 3/4 of the time, evidence was strong. The issue was sympathy.
Not that the killers were terribly sympathetic figures, but their
attorneys had a way to make them look better than the victims.

Juror Kyle Ackerman encountered this strategy in the trial of Michael
Ellington, the father who shot his son. Mr. Ellington had refused to help
the 18-year-old get his girlfriend home, which led to a shouting and
shoving match. The defense portrayed the unarmed victim as a hellion and
the father as an upstanding citizen who fired in fear.

Mr. Ackerman went along with the majority in awarding probation. He's
haunted now by the implications of that decision.

"If you know you'll just get off with probation because the guy [victim]
deserved it anyway, we'd have vigilantes running all over the streets," he
said. "All men are created equal. We can't take people's lives into our
own hands."

No guidelines

The News began investigating the probation-for-murder phenomenon last year
after writing about John Alexander Wood, who was charged with murder for
shooting an unarmed prostitute in the back. He claimed that he was merely
trying to scare the victim and shot him accidentally.

Mr. Wood came from a politically prominent family, and his character
witnesses included the pastor of First Baptist Church in Dallas. The
victim was poor and had no grieving relatives in court.

As jurors struggled to decide whether to convict him, Mr. Wood pleaded
guilty to murder in exchange for probation. He went on to violate the
terms of his probation repeatedly but avoided prison nonetheless.

Was the case a fluke? Or did it reflect larger patterns?

No one in the United States had researched systematically who gets
probation for murder and why. So reporters analyzed thousands of
government records, including some from confidential criminal files. They
interviewed more than 200 people, including police, prosecutors, defense
lawyers, judges, probation workers, victims' families and the killers
themselves. (The News' study excluded capital murder cases, for which
probation is not permitted, and unintentional forms of homicide, such as
manslaughter.)

Dallas County, it turned out, granted probation for murder far more
frequently than Texas' other large, urban counties  more than twice the
rate in Harris County, home to Houston, and more than 3 times the rate in
Tarrant County.

Bill Hill, the Dallas County district attorney until the end of 2006,
could not explain the county's high rate of probation-for-murder
sentences. "It surprised me," he said, especially in light of the local
justice system's "hang 'em high" reputation.

As for Mr. Wood, the data showed he was unusual only in that he was white
and well-connected.

Most of the murderers in The News' study were minorities who killed
minorities. That racial pattern is typical of killings overall in Dallas,
where most of the probation-for-murder cases occurred.

About 1/2 of the defendants in the study were poor enough to qualify for
court-appointed lawyers.

Most of the victims had something in common with Mr. Wood's victim. They
had few advocates, and their deaths attracted little news coverage. They
had done something unsavory, perhaps, or they had contributed in some way
to a confrontation.

In short, there was a way to make them seem unsympathetic.

Sympathy matters because Texas, unlike most states, lets juries determine
sentences. That's a recipe for extreme disparity because each group of 12
people starts from scratch  and most have no experience putting a price
tag on human life, no legal background beyond watching Law & Order.

"We ask a lot of these people who don't deal with this every day," said
Dallas lawyer Scottie Allen, who secured probation for more defendants in
The News' study  4  than anyone else.

"We educate them in 45 minutes on sometimes very sophisticated legal
issues and expect them to go through that process and set their feelings
aside," he said. "I just don't think that's realistic."

But he likes it that way. Far easier to deal with novices in the jury box
than a veteran on the bench, he and other defense lawyers think.

Judicial sentencing "would scare me to death," Mr. Allen said.

Having judges set punishment doesn't guarantee equity, of course. But at
least judges can compare cases on various points  premeditation,
provocation by the victim, remorse, the killer's past and so forth.

Nearly half of all states  but not Texas  formalize this process and have
sentencing guidelines. Defendants undergo detailed pre-sentence
investigations and are scored on dozens of factors. Judges can see how
their peers typically sentence people with a given score.

Dallas jury-selection consultant Lisa Blue says juries tend to make
decisions based on likes and dislikes, regardless of the facts or the law.

"You can have the exact same facts but have the personality of the victims
be different and get totally different results," said Ms. Blue, a former
Dallas prosecutor. It shouldn't matter, she said, "but it does."

Andrea Moseley, a Dallas County prosecutor, knows this well. She speaks of
her murder caseload with some dread.

"I've got one out of 9 cases pending where I have a truly innocent
victim," she said. "The rest are involved in something, something that put
them there.

"I'm not saying that they deserved killing, but something put them there."

Gaming the jury

How do defense lawyers get jurors to sympathize with killers? It starts
just like a successful job interview  with a good first impression.

"I remember just being amazed during the jury selection phase that we were
talking about Murder One, looking at that young man sitting there at the
defense table," recalled juror Neil Earnest. "He didn't come across as
physically threatening in any way. Wore dark-rimmed glasses, white dress
shirt, black pants.

"When somebody said this trial is about murder, collectively everybody's
jaw dropped in the jury pool."

Mr. Earnest and his 11 colleagues convicted Damarcus Robinson of murder
for handing a gun to a friend, who fired at a rival group of youths and
killed Deaundrean Pleasant. They granted probation after hearing that Mr.
Robinson had spent about 14 months in jail awaiting trial.

"If there's any hope for this young man to turn his life around," Mr.
Earnest said, "spending five years in the penitentiary was not going to be
helpful."

Dallas defense attorney Phillip Robertson said he frames cases so jurors
might begin to think that they, too, could take a life.

"Anybody that has been married over five years has thought about killing
somebody at some point," he said. "And people, after they get over the
initial shock of murder, are like, 'I could see how I could be pushed to
this limit if I was in that guy's shoes.' "

Jurors convicted one of Mr. Robertson's clients of murder in 2005 for
shooting an unarmed panhandler. They gave Akeem Rayford probation after
Mr. Robertson presented the victim, B. Lawrence Mason, as a bully who'd
previously tried to confront Mr. Rayford.

The killer was 18, had a baby and, juror Lila Powell Clark noted, had
nice-looking parents. Her conclusion: "He did a stupid thing, which we all
do from time to time, right?"

Luis Merren Jr., another Dallas defense lawyer, said he typically expects
a murder client to be convicted and focuses on the dead person. By the
time a trial's sentencing phase arrives, "I've already put as much dirt on
the victim as I can to, basically, not taint the jury, but show the jury
that the victim is not really a victim ... he had something to do with the
circumstances that led up to the killing," Mr. Merren said.

Jurors don't necessarily behave the way they think they will under these
circumstances.

Kristi Sheffy learned this as forewoman of the panel that gave probation
to Mr. Ellington, the father who murdered his son. After the trial, she
went back to work embarrassed to tell colleagues what had happened.

"I'm one of the ones who in other conversations would say, 'Death row is
too long. Let's just get rid of them; let's find them guilty and take them
out back and hang them like they used to,' " she said.

Mandy Statts' boyfriend, Ryon Ellington, was fatally shot by his father
during an argument in 2002. Michael Ellington said his gun went off
accidentally when the 18-year-old tried to grab it. Jurors didn't buy
that, but they did believe that the father's fear of his son prompted the
shooting. "But when you take it one by one," she said, "it's never black
and white."

Jurors said they found Mr. Ellington sympathetic: He had diabetes. He had
no prior record. He loved to hunt but, as a convicted felon, couldn't own
a gun any longer. His ex-wife and surviving son shunned him. He seemed to
have lots of friends and co-workers supporting him in court. He had to
live with his guilt.

Carol Ellington told The News that her ex-husband viewed their son Ryon as
the result of an unwanted pregnancy, never showed him love and once said
he wished the boy was dead.

Ms. Sheffy and several other jurors The News interviewed said probation
probably shouldn't be a possible sentence for murder. Under a new state
law, juries won't have this option for murders that occur after Sept. 1,
2007.

But judges will. So will the prosecutors who negotiate plea deals, which
account for the vast majority of probation-for-murder cases.

Lawyers say juries will find a way around the new law. One way is to
convict murder defendants of a lesser offense, such as manslaughter, which
makes them eligible for probation.

Bargaining for justice

Juries' decisions inevitably influence plea-bargain negotiations in other
cases. When seeking a deal, Mr. Robertson's favorite point of reference is
a client who murdered his girlfriend's harassing ex and got probation from
a jury.

"If he stabbed him 20 times, he stabbed him 30 times," the lawyer said.
"The guy was bleeding on the ground and said, 'I'm dying,' and my client
said, 'You ain't dead yet, mother [expletive],' and stabbed him some
more."

Mr. Robertson said the case taught him that when "I have a victim with
unclean hands, I can look back and say, 'Mr. or Ms. Prosecutor, this is a
real similar case  this is what a jury did.' "

He got a probation deal for Phuc Nguyen, who shot an unarmed relative
after inviting him over to discuss a financial dispute. Mr. Nguyen said he
was afraid of Hung Nguyen, who had injured him in a previous fistfight and
resisted paying the associated medical bills.

Mr. Robertson uses a term to describe the case that he acknowledges is
"insensitive" and that other justice-system insiders generally won't utter
for publication: "public service killing." In other words, the killer did
society a favor by eliminating a bad guy.

Texas' liberal self-defense law also worked to his client's benefit in
plea-bargain negotiations. It "allows you to not have to see a gun or not
have to see a knife or a deadly weapon; you just have to have a reasonable
belief that you are going to be caused death or serious bodily injury,"
Mr. Robertson noted.

Prosecutor Andrea Handley said she didn't remember the Nguyen case well
enough to comment.

Phuc Nguyen received deferred-adjudication probation, as did all the
killers in The News' study who got plea deals.

Here's how that works: A defendant admits guilt. A judge finds that there
is enough evidence to convict but defers a decision on whether to do so,
pending the outcome of the probation.

In the past, judges almost always rubber-stamped these deals. Danny
Clancy, who has left the bench and now works as a defense attorney,
explained why: "My thought was, the lawyers on it knew the facts a lot
better than I did. I trusted them."

Defendants like deferred adjudication because they'll have no conviction
record if they complete probation successfully. It's as if the crime never
occurred.

Prosecutors love the option because, if defendants misbehave and have
their probation revoked, the full range of sentences is available  up to
life in prison. And juries don't get to decide those sentences. Only
judges can.

Defendants who are convicted in a jury trial and get probation face far
less punishment if the probation is revoked. Ten years is the maximum
prison sentence.

Some Dallas County prosecutors are so enamored of deferred-adjudication
probation that they prefer it to relatively short prison sentences.

Lara Peirce is one. She negotiated a deal in 2004 with a killer named
Fernando Obregon, who had a weak self-defense argument and was as nervous
as she was about going to trial. His lawyer suggested a plea bargain that
would involve a 5-year prison sentence, but the prosecutor countered with
deferred adjudication.

Prison time seems better, Ms. Peirce said, but such convicts can get
credit for good behavior, go free in a few years and hurt someone else.
"What has the community really gained?" she asked.

The prosecutor gambled that Mr. Obregon would misbehave without hurting
someone else and get hammered, as insiders say, by a judge. After more
than a year, she won: He is now serving a life sentence.

"Delayed gratification," Ms. Peirce calls it.

"The back door to prison," other prosecutors say, or "the Texas 2-step to
life."

Other breaks

Women who kill have an easier time getting probation deals, former
prosecutor Rick Jordan said. That's especially true "if they have some
kind of rational provocation" or there's an allegation of prior abuse by a
male victim.

"The allegation itself is almost enough," said Mr. Jordan, now a defense
attorney. "Juries don't want to send women to the pen."

Luz Tovar benefited from this mind-set. She stabbed her estranged
boyfriend to death, police concluded, after he drove drunk with one of
their kids. She claimed that Cristian Galvn Jasso accidentally stabbed
himself while slicing limes, but there was no fruit at the crime scene.

Heath Hyde, who prosecuted the case and offered probation, said some
relatives told him that the victim had mistreated Ms. Tovar.

"Was there self-defense there?" asked Mr. Hyde, who's also working as a
defense attorney now. "I got the impression that they [investigators]
tried to leave the door open for her to give that, but she just never did
go down that path."

Being old can also sometimes work in a killer's favor, as the case of
William Goforth shows. The elderly man shot a younger relative who
approached him with a small bat during a family argument.

Mr. Jordan said he and the prosecutor were willing to cut a deal for
deferred-adjudication probation. But relatives of the victim pressed the
district attorney's office to go to trial. A jury acquitted Mr. Goforth.

"Age alone is a factor," Mr. Jordan said. "He looks every bit of 68."

But senior status is no guarantee of leniency, even when the victims are
profoundly unsympathetic. Foyil Deal, who was 63 and in failing health,
was charged with capital murder for killing two crack dealers outside his
home. Mr. Deal said he fired in self-defense after they kidnapped and
robbed him. But Dallas County prosecutors convinced a jury that the
shooting followed a drug deal gone bad. Mr. Deal got life in prison
without parole.

In cases where prosecutors won't agree to a deal, defendants sometimes
plead guilty anyway and ask the judge for mercy in sentencing. 3 times in
The News' study, judges responded to such pleas by granting deferred
adjudication.

Two of the cases involved ailing, elderly murderers. Walter Sams shot his
daughter after accusing her of stealing from him. John Grimble shot
girlfriend Etherine McDowell after she raised hell outside the house he
shared with his wife.

Judge Vic Cunningham said he granted Mr. Grimble probation because the
killer appeared frail by the time his case got to court, and he was
terminally ill with cancer.

Gene Thompson's 15-year-old son, Tyler, was shot by gang member Jason
Chheng over a $100 debt. "Before everything happened, I thought Texas as a
whole was pretty tough on crime," he said. "If you want to commit murder,
come to Dallas." "He wasn't a danger to anybody at that point," said Mr.
Cunningham, who has retired from the bench.

Outcomes and implications

So what are the results of the probation-for-murder gamble?

It depends on where you sit.

Several killers have followed the rules. A few have finished probation or
died.

Some have broken the rules, yet remain free. One of them is Jason Chheng,
a gang member who shot 15-year-old Tyler Thompson over a $100 debt.

"Before everything happened, I thought Texas as a whole was pretty tough
on crime," said the victim's father, Gene Thompson.

His assessment now: "If you want to commit murder, come to Dallas."

More than 1/3 of the killers in The News' study were sent to the
penitentiary after violating their probation. They had gone back to the
thug life, dealing dope and carrying guns. But they had no known new
victims, so prosecutors counted these as victories.

3 of the killers went on to attack innocent people.

Aaron Lamont Jackson has been one of the obedient ones. But probation
still feels like a slap in the face to the father of his victim.

Ronald Boleware Sr. knew the killer wouldn't appear dangerous to a judge.
That's because Mr. Jackson, right after murdering 21-year-old Ronald
Boleware Jr., was shot and paralyzed while trying to rob someone else.

Why, the father asks, does that earn him a break?

Mr. Boleware's son has been dead for 6 years, and he still cries. Mr.
Jackson, meanwhile, has become a minor celebrity at stop-the-violence
rallies in Dallas, shaking hands with Mayor Tom Leppert at one recent
event and speaking at City Hall.

"It leaves you a little callous and cynical and hard-hearted," Mr.
Boleware said. "Now, not only do I miss my son, but I don't have any faith
in the justice system."

******************

DA's burden: sympathy for a killer----Denton County case illustrates why
prosecutors fear juries, may cut deals


Joshua Abbott stabbed and slashed an unarmed man so many times that the
medical examiner quit counting.

Mr. Abbott was on probation for burglary and felt sure no one would buy
his self-defense claim. But a Denton County jury did and acquitted him
last year of murder.

"That's winning the lottery," he said.

How'd he do it? He portrayed himself as a nave 19-year-old trapped in the
bedroom of a gay, HIV-infected man out to rape him. The man seemed unfazed
by the blade, he said, so he had to keep stabbing.

"I talked to my lawyer, and he said that's what happened," Mr. Abbott told
The Dallas Morning News. "He said, 'You were in fear for your life.' "

Today, he admits he wasn't trapped in David Morrison's room and didn't
feel that his life was in danger. What he did feel was rage  "from zero to
mad real quick."

"'You're out of here, David.' That's what I thought in my head," he said.

Mr. Abbott's acquittal is a study in how prosecutors can lose a murder
trial when there is no doubt about the killer's identity: by being
outmatched in what is essentially a sympathy contest.

Such verdicts also help explain why prosecutors sometimes avoid juries and
offer probation deals in seemingly straightforward murder cases.

Joshua Abbott, in prison after a burglary probation was revoked, says
David Morrison made sexual advances and tried to choke him. But he now
admits he wasn't trapped in Mr. Morriso's room and didn't feel that his
life was in danger. "This case is a prime example of the unpredictability
of trials," said Susan Calvert Piel, the Abbott prosecutor and a former
defense attorney. "And that's why people have to make decisions on both
sides, the state and the defense, to cut losses and not take that risk."

'This is bad'

Joshua Abbott, a high school dropout and ex-gang member, was boyishly
good-looking and capable of appearing deferential. Beyond that,
court-appointed defense lawyer Neil Durrance had his work cut out for him.

"If you hear just the isolated facts," Mr. Durrance said, "your first
response is, 'Ooh, this is bad.' "

The only wounds Mr. Abbott suffered during his 2005 encounter with Mr.
Morrison were self-inflicted  he cut himself accidentally with his knife.
What Mr. Abbott did after the killing didn't help his cause, either.

He phoned his father, who lived near Mr. Morrison, and said he'd killed
someone. His father told him to call 911 and wait. But he refused, so the
father alerted Denton police.

Meanwhile, Mr. Abbott showered, changed into some of Mr. Morrison's clean
clothes and left. He didn't get far on foot before police caught him.

Officers found Mr. Morrison's body face-up on his bed, fully clothed and
drenched in blood. The medical examiner counted 38 stabs and cuts in the
autopsy and simply referred to three other clusters of "several" and
"additional" wounds.

David Morrison "David looked like a salt shaker," said his mother, Shirley
Serna.

Under interrogation, Mr. Abbott explained to a detective how he ended up
at Mr. Morrison's apartment.

Mr. Abbott said he and Mr. Morrison knew each other from performing
court-ordered volunteer work at an AIDS clinic. On the day of the killing,
they had agreed to get together at Mr. Morrison's place to discuss job
possibilities at a Pancho's Mexican Buffet, where Mr. Morrison was a
waiter.

The two talked, watched TV and drank beers. Then they went into the
bedroom, where Mr. Morrison hugged and kissed Mr. Abbott on his lips, he
told the detective. That "freaked me out," he said, because he hadn't
known Mr. Morrison was gay.

Mr. Abbott said he told Mr. Morrison, "I'm not like that," and pushed him
away. He said the man persisted, leading to a fight and the stabbings.

He did not allege that Mr. Morrison threatened to rape or kill him. That
came later, at trial  as did the claim that Mr. Morrison had told him he
was HIV-positive.

Prosecution theory

In court, the prosecutor, Ms. Piel, presented a theory for what
precipitated the slaying: Mr. Abbott had panicked during a consensual
sexual rendezvous and responded with rage.

She called a witness, an openly gay friend of Mr. Abbott's, who told
jurors that Mr. Abbott had watched gay porn with him and expressed
curiosity about sex with men. Mr. Abbott was wearing a pink studded belt
with his name on it the night of the killing, and Ms. Piel said he
couldn't possibly have mistaken Mr. Morrison, whom some friends called
"Gay David," as straight.

None of the knickknacks or framed photos on dressers in the small bedroom
was knocked down, which Ms. Piel said contradicted Mr. Abbott's statement
that he had pushed Mr. Morrison into the furniture during their fight.

Susan Calvert Piel, who prosecuted the Abbott case, argued in court that
the killer had panicked during a consensual sexual rendezvous and
responded with rage. But jurors bought the defense's negative portrayal of
David Morrison. Furthermore, she said, Mr. Abbott's description of the
scene didn't match where police found the body. Splatters on the back of
Mr. Abbott's shirt suggested he was the aggressor, straddling Mr. Morrison
and flinging blood over his head as he repeatedly stabbed the man.

"David Morrison was lying on a bed trying to defend himself as Joshua
Abbott plunged that knife into him over and over and over again," Ms. Piel
said in an interview.

Jurors said the prosecution's case seemed damning.

Then Mr. Abbott's lawyer put the dead man on trial.

Momentum shifts

Mr. Durrance produced 2 witnesses who testified that they had seen Mr.
Morrison become aggressive when drinking. The prosecution was blindsided.

"Jurors will forgive a lot if they're told about it beforehand," said
prominent Dallas jury consultant Lisa Blue, a former prosecutor. But if
they're surprised, it is "the worst thing that can ever happen," she said.

An ex-roommate of Mr. Morrison's testified that he awoke one night on the
sofa to find Mr. Morrison undressing him; he pushed him away. And a bar
employee said he had to remove Mr. Morrison a couple of times after the
man's advances with customers turned confrontational.

This bolstered Mr. Abbott's evolved self-defense argument: that a highly
intoxicated Mr. Morrison held him by the throat and "told me he was going
to kill me if I don't give it to him."

Mr. Abbott had a minor size advantage on Mr. Morrison, but his lawyer
argued that the man had a "deadly weapon"  HIV, the virus that causes
AIDS. The victim's HIV status was never proved in court, but no one
disputed it.

"If someone is attempting to have sex with you and they're HIV-positive,"
Mr. Durrance said in an interview, "it's pretty much a death sentence."

Mr. Durrance said his client didn't tell police the night of the killing
that he feared for his life because he was still rattled. As they prepared
for trial, the lawyer said, he helped Mr. Abbott crystallize the
self-defense claim but did not improperly coach him.

During the trial, a controversial forensic pathologist, whom Mr. Durrance
found on the Internet and hired, testified that the pattern of stab wounds
matched Mr. Abbott's claim that he was pinned down and killed in
self-defense.

"Every bit of the evidence supported that he was innocent," said Dr. John
T. Cooper Jr., who reviewed the medical examiner's autopsy report and
crime-scene photos.

Dr. Cooper told The News that the massive number of stab wounds indicated
that Mr. Morrison wouldn't relent and the stab blows were "just hurting a
little bit." The blood on the back of Mr. Abbott's shirt got there because
he had to "roll out from under the guy" after finally subduing Mr.
Morrison, Dr. Cooper said.

Ms. Piel, the prosecutor, called Dr. Cooper's opinion "outlandish."

"We likened it to that of a horror movie," she said, "where this person
keeps getting stabbed in the chest and neck and face and keeps coming at
Joshua Abbott over and over and over again without ever injuring Joshua
Abbott at all."

Jury gets case

Yet jurors found the defense persuasive. A majority of them were women and
related to fears of being raped, forewoman Victoria Ferguson said. They
also sympathized with Mr. Abbott because some were mothers with sons about
his age, she added.

"We're talking about a 19-year-old kid and a 40-year-old man who gets very
ugly and violent when he's drunk," she said. "So David probably just
scared the crap out of Josh."

Four of the women were nurses and favored Dr. Cooper's explanation of the
crime scene more than the medical examiner's, which was a "cut and dried"
description of Mr. Morrison's wounds, Ms. Ferguson said.

A few jurors, mostly men, were skeptical of Mr. Abbott and felt inclined
to convict. Reggie Hernandez Jr. and Brad Parr suspected that Mr. Morrison
made an unwanted pass, rather than attempted rape, and that Mr. Abbott
didn't need to resort to violence.

However, Mr. Hernandez said, "The women, their first comments were, 'No
means no.' They saw it as very black and white. Their opinion really
wasn't going to change."

The men said prosecutors missed opportunities to help them make their
points.

For example, Ms. Piel didn't aggressively cross-examine the defense's 2
surprise witnesses. She said she was afraid of stirring up more negative
images of Mr. Morrison.

One longtime friend of Mr. Morrison's said she would have gladly testified
as a character witness but wasn't asked. Cat Griffin sat in on the trial
and was floored by the portrayal of Mr. Morrison.

Ms. Griffin recalled him as a fun-loving guy who played pool, loaned
friends money when they needed it and spent holiday dinners with her
family. He would flirt but never force himself on anyone, even when
drinking, she said. He had two drunken-driving convictions, but no record
of violence.

"Nobody I talked to can believe it, that he would act that way," she said.
"Even if David did make a pass at him, that's no reason for murder.
There'd be a lot of trials if every woman murdered every guy that made a
pass at her."

The prosecution did try to raise doubt about Dr. Cooper, Mr. Abbott's
medical expert. Ms. Piel told jurors about one controversial case in which
the expert attracted national television attention in California about two
weeks before the Abbott trial.

The murder defendant who hired Dr. Cooper had stabbed her husband
repeatedly and was claiming self-defense. He testified that the man died
of heart disease.

"Our theory on him is that he'll say whatever you pay him to say," Ms.
Piel said.

The News found additional questions in Dr. Cooper's background that
weren't introduced in the Abbott trial.

Dr. Cooper has been criticized by judges and peers, and he hasn't had a
license to practice medicine since late 2003. That didn't prevent him from
testifying as an expert, as long as he didn't perform an autopsy.

Mr. Abbott's lawyer said he was aware Dr. Cooper couldn't practice
medicine and expected prosecutors to point that out.

"You don't leave any stone unturned," Mr. Durrance said.

Increasingly, Mr. Hernandez and Mr. Parr said, they felt worn down. They
considered causing a mistrial but figured another jury would simply see it
the same way their colleagues did.

"I think I finally did just say, OK, perhaps, give him the benefit of the
doubt because everyone else's reaction  except for a couple of us
initially  was that he was innocent," Mr. Parr said.

Mr. Morrison's family and friends were mortified by the acquittal.

"How in God's world can anybody get by with that?" his mother said.

Life after acquittal

About a month after he was released, Mr. Abbott was back at the Denton
County court. He asked for the return of his knife and got it.

Then in fall 2006, he and an associate were arrested in Frisco for passing
bad checks. Authorities revoked Mr. Abbott's burglary probation and
sentenced him to three years in prison.

"I got out, did good for a minute and then [went] right back in jail," he
said. The murder case "didn't teach me a thing."

Mr. Abbott said he spent much of his young life having run-ins with the
law  from joining gangs to using cocaine and meth to assaulting a kid and
getting locked up in a juvenile hall. The jury in the murder case knew
none of that, because it couldn't be introduced unless he was found
guilty.

Now, he said, he's ready to leave crime behind and doesn't want to be
judged because he killed someone.

"Anybody can do it. Anybody," he said. "If you can kill an animal, you can
take a human's life."

Is he remorseful?

"I'd do it again," he said. "Someone like that deserves what they get."

***************************************

'Hope and pray no one else gets hurt'----Prosecutors sometimes bet that
killers on probation won't avoid trouble, but the strategy can backfire
tragically


Prosecutors gamble with lives every day. Here's what it looks like when
they put killers on probation  and lose:

A teenager gets his face stomped and never regains full vision in one eye.

A baby, battered from head to scrotum, labors to breathe.

A young woman sweats through nightmares about her days as a pimp's
prisoner. "I could have been dead," she says.

In most of the probation-for-murder plea deals studied by The Dallas
Morning News, prosecutors' gambles paid off. Several defendants went back
to dealing dope or carrying guns illegally, got caught and were sent to
prison without committing more violence. Others were incarcerated after
lesser infractions. Some seem to be staying out of trouble.

And then there are these 3 haunting cases, all from Dallas County, where
more people had to suffer.

The killers were violent young thugs  terrible candidates, in other words,
for succeeding on probation. Each admitted taking the life of a young man
who had no criminal record. One killed under circumstances that could have
made him eligible for the death penalty.

Will Ramsay, who prosecuted one of the three cases, said probation was
"the best outcome probably at that point. But it's a very kind of sick
feeling in your gut."

Demetria Nedd holds her son, beaten at age 15 by gang members, including
one who was on probation for a 2004 murder. The 2006 attack on the
teenager caused partial blindness. He added: "You just hope and pray no
one else gets hurt."

A baby pays

The prayers went unanswered for a 1-year-old baby whose mom, to escape
homelessness in 2005, was living with a murderer named Taurus Ephraim. 3
years earlier, according to police and court records, Mr. Ephraim was part
of a shootout that left 1 man dead. He got probation because police found
no accomplices, eyewitnesses or weapons.

A judge revoked that deal last year and sentenced him to life in prison
after concluding that he had battered his girlfriend's baby.

The prayers also went unanswered for Cheryl London, a visitor to Dallas
who was stranded at the downtown bus station in 2004 and accepted a ride
from Adrian Shepard.

She didn't find out he was on probation for murder until police arrested
him, days later, and charged him with holding her captive as part of a
prostitution scheme. That led a judge to sentence him to 20 years in
prison for the murder.

How had Mr. Shepard, who killed a motorist after a dispute over a
fender-bender, managed to get a probation deal in the first place? He just
got lucky while awaiting trial  the state's key witness lost credibility
by committing armed robbery.

Christopher Dior Thompson was an 18-year-old gang member with a juvenile
record for robbery. He was trying to rob again in 2004 when he gunned down
Raul Pealoza, a recent immigrant who was working to support a large family
of peasant farmers back home in Mexico.

Mr. Thompson saw him trying to hire a prostitute, demanded money, fired
and fled. The woman recognized the killer from their South Oak Cliff
neighborhood and identified him to police, but waffled after Mr.
Thompson's brother threatened her.

At a probation revocation hearing in May, a judge told Christopher Dior
Thompson he had "a total disregard for human life" and sent him to prison
for 75 years for killing a man three years ago. Mr. Ramsay, the
prosecutor, was afraid to advertise his star witness' inconsistencies to a
jury. He couldn't prove Mr. Thompson was behind the intimidation by his
brother. And he didn't have a murder weapon.

So Mr. Ramsay gave up on the capital murder charge, for which the only
sentences are death and life without parole. He let Mr. Thompson plead
guilty to murder and walk out of court.

Earlier, the killer's brother got a plea bargain, too, on a terroristic
threat charge. His deal, at least, included a little time behind bars  180
days.

The brother, Jamal Thompson, told The News that he berated the prostitute
without consulting Christopher Thompson but did not threaten to kill her.
He said he told her: "If you did see something, you should have just left
that [expletive] alone. ... That [expletive] will come back on you."

Another attack

Christopher Thompson started probation in May 2006. One condition was that
he stay a mile away from the apartment complex where he killed Mr.
Pealoza.

But there he was, four months later, instigating a mob attack on a
15-year-old boy who was walking home. Mr. Thompson paved the way with
punches before someone else kicked the kid in the face, fracturing an eye
socket and causing partial blindness.

Authorities charged Mr. Thompson with aggravated assault and sought to
revoke his probation.

About 2 weeks later, the boy got a taste of the intimidation tactics that
the prostitute had experienced.

According to police, a friend of Mr. Thompson's saw the boy in the
neighborhood, asked him to come to her apartment and speak by phone to the
jailed killer. The boy did so hesitantly, police said.

The boy recognized Mr. Thompson's voice on the other end of the line. Mr.
Thompson "asked him to drop the charges," and Mr. Thompson's friend
offered to sell some guns to pay off the boy, police said. The boy replied
that he was a minor and couldn't drop the charges, according to their
report.

The friend was subsequently arrested and charged with witness tampering,
and the case is pending. The boy was nonetheless scared to testify  and
another case against Mr. Thompson started falling apart.

Prosecutors dropped the assault charge and focused on an easier task:
showing that the killer had violated his probation. They had only to
convince a judge on this matter; the defendant couldn't raise the issue
with a jury. And the standard of proof is lower  "preponderance of the
evidence" as opposed to a full criminal trial's "beyond a reasonable
doubt."

While in jail before the probation-revocation hearing, Mr. Thompson
declined to be interviewed. In court, he said he merely traded swings with
the 15-year-old and later tried to protect him from the real attackers.

Judge Jeanine Howard didn't believe it. She told Mr. Thompson he had "a
total disregard for human life" and sentenced him in May to 75 years in
prison for the Pealoza murder.

Mr. Ramsay, who now works as a defense attorney, is upbeat about how it
all turned out.

"Knowing that justice did occur, even though it was little belated, that
makes me feel better about the decision we made," he said. "I think it
worked out very well, when it's all said and done."

But the boy who got beaten up doesn't quite feel that way. His eye may
never be the same. And he's still stuck in a neighborhood with some of Mr.
Thompson's buddies.

"Everybody's going to think I'm a snitch," his sister recalled him saying
after she found him lying in the street bleeding.

"I'm basically the cherry on top that puts him away," he later told The
News. "And I don't want to be the cherry."

**************************************************

One man's deal is another man's life term----The 2 killed under similar
circumstances. But in the courts, Dallas County treated them very
differently.


Foyil Deal was an old man with a bad heart and a concealed handgun permit.
He killed 2 armed crack dealers and called 911 immediately. He told police
he dabbled in drugs but fired in self-defense after the men kidnapped him
from his home, robbed and tried to attack him.

Shane Webb was a young drug dealer who'd done prison time for murder. He
had no right to carry a gun. He killed again, shooting an addict in the
back. He didn't call 911. Only after police tracked him down did he claim
self-defense.

Mr. Deal got life in prison.

Mr. Webb got probation.

That's the crapshoot of Dallas County justice.

"I didn't want nobody hurt," Mr. Deal told The Dallas Morning News in a
prison interview. "I felt they was fixin' to kill me."

Grand Prairie police believed he had been abducted, according to testimony
at a pretrial hearing. But they doubted his self-defense argument, saying
he fired when he wasn't in imminent danger. A detective testified that Mr.
Deal shot the men from behind.

However, an autopsy showed that the bullets entered the front and side of
their heads. That supported Mr. Deal's statement that the two dealers were
coming at him, his attorney said.

Foyil Deal says he shot 2 armed crack dealers in self-defense. But he told
police he'd started using crack for pain, and prosecutors used that
revelation to depict the 2004 shootings as a drug deal gone bad. So at
trial, prosecutors took a different tack. They said Mr. Deal killed in
anger after a drug deal soured.

"These guys were killed without justification," Assistant District
Attorney Robert Rogers said in an interview. "These two guys had families
that were good people, that were hardworking citizens."

Mr. Deal's story

"Hurry!" Mr. Deal yelled repeatedly to the 911 dispatcher moments after he
shot the men in January 2004.

"They're coming, OK?" she reassured the former construction worker. "I
know that you're scared."

Mr. Deal, who goes by Eddie, hadn't had many dealings with police. His
criminal record included only a 1976 DWI. With no lawyer present, he gave
a Grand Prairie detective this account of the killings:

He woke up to banging on his front door about 8 a.m. and checked to see
who was there. A man wearing a ski mask pushed his way inside, demanded
money and threatened to kill him.

The man, later identified as 35-year-old Wylie Casey Jr., found no cash in
Mr. Deal's wallet but saw his ATM card. The man ordered Mr. Deal to get
dressed and forced him into the back seat of the car. In the front
passenger seat was the second dealer, 40-year-old Wesley Duncan.

Mr. Deal told police he was unsure who the men were, given that one was
masked and the other ordered him to not look at his face.

The men, it turned out, were high on cocaine. They had an aluminum bat in
the car. Mr. Casey had a knife clipped to his belt. They also had records:
Mr. Casey for theft, Mr. Duncan for burglary and drug possession.

Little did they know, Mr. Deal had his .22-caliber pistol in the pocket of
the pants he'd rushed to put on. He'd left it there the night before.

Mr. Deal said he didn't use the gun right away because he thought the men
might leave him alone after getting money from the ATM.

Mr. Casey withdrew $100. He gave Mr. Deal the ATM card and a $20 bill. Why
would the man do that, police asked Mr. Deal. He said he didn't know.

After they returned to Mr. Deal's home, the men warned him not to call
police. And they threatened again to kill him, he said.

Mr. Deal said he was trying to get out of the car when Mr. Casey grabbed
the bat. Mr. Deal grabbed his gun, he said, as Mr. Casey lunged for him.

"There wouldn't have been no shooting if they hadn't forced me into it,"
Mr. Deal said in the interview.

A big difference

After explaining the ordeal to police, Mr. Deal revealed one more detail:
He had recently begun using crack.

He first tried it while his adult son, a drug user, lived with him for
several weeks, he said. Mr. Deal told The News he wanted to see if crack
would ease his physical pain, which included lingering problems from
open-heart surgery.

"I was so close to dying, it didn't make me no difference," he said.

But it would make a big difference at trial a year later.

The district attorney's office decided to charge him with capital murder
because he killed multiple people. Prosecutors did not seek lethal
injection, leaving him with an automatic life sentence if convicted.

At trial, Mr. Rogers told jurors that there was no physical evidence to
support the kidnap claim. He also noted that Mr. Deal  63 at the time of
the killings and wearing nitro patches for his heart condition  never
tried to flee.

The prosecutor suggested the men went to Mr. Deal's home to collect a drug
debt or to hustle him. He said that was probably why they gave Mr. Deal
$20 and left more than $200 in his bank account.

Mr. Casey had fake drugs in his pockets, Mr. Rogers said. Police found
residue on a crack pipe inside Mr. Deal's home but no drugs on him.

"The totality of everything just didn't indicate that Foyil Deal was a
victim at all," Mr. Rogers said in an interview. "I didn't see it as
either individual killed had instigated anything."

But why was one of the victims found wearing a ski mask?

It was perhaps the biggest question for the prosecution. Mr. Rogers had
Mr. Casey's brother float an explanation: The brother testified that he
used to wear a mask, too, when using fake credit cards at ATMs. He said he
had disclosed this to Mr. Casey at a church support group for addicts.

"I told him, 'You know, you need to protect yourself,' " the brother said
in court. "And I'm sure he considered that when he put the mask on."

Defense attorney Mike Sullivan was incredulous.

"If you have a friend come over and sell you drugs ... they don't wear a
ski mask," he said. "You wear a ski mask to a robbery."

So why would robbers give back money?

That was the biggest question for the defense. Mr. Sullivan told jurors
Mr. Deal had begged the two men, "Please don't leave me broke."

But there were no witnesses to corroborate Mr. Deal's story, and the
defense presented no testimony. Mr. Sullivan said the prosecution hadn't
proved beyond a reasonable doubt that the killings were "cold-blooded
murder."

Deal juror Pamula Webster held out for acquittal because she believed he
feared for his life: "I really felt he got a bad deal." Jury deliberations
were tense and lasted four days. A majority decided early on that they
wanted to convict, including Tommie Dalessandro.

"If I thought my life was in danger," she said, "I'd have jumped out and
screamed bloody murder."

Pamula Webster held out for acquittal because she believed Mr. Deal feared
for his life and didn't have a realistic way to flee. She finally
conceded, she said, when the other jurors wouldn't budge.

"I really felt he got a bad deal," she said.

Repeat offender

Long ago, Shane Webb could have been prosecuted for capital murder, too.
But for reasons that are lost to history, he wasn't.

Shane Webb The charge was possible because on New Year's Day in 1990, he
took part in a robbery in which a man was shot to death.

A week later, 2 of Mr. Webb's friends shot and wounded a boy who witnessed
the slaying. Mr. Webb, then 20 years old, drove the getaway car.

He pleaded guilty to all of it  murder, robbery, injury to a child  with
no deal from prosecutors. A judge sentenced him to 10 years in prison.

Mr. Webb got out in 2000 and soon was arrested for hitting an
ex-girlfriend. Seven months later, while awaiting trial for assault, he
was dealing crack cocaine at an Oak Lawn apartment and killed again.

How did the 31-year-old get a probation deal for this murder?

Prosecutors weren't excited about taking the case to trial. Mr. Webb's
victim, Travis Reddic, was deemed unsympathetic. He had a robbery record
and apparently attacked Mr. Webb with a screwdriver while trying to snatch
his dope.

"It's almost one of those deserved kind of things," said Phillip Hayes,
one of the prosecutors on the case.

Mr. Webb's self-defense argument was far from perfect. He fired while the
victim was fleeing, a witness told police. Two bullets hit Mr. Reddic in
the back, a third in the arm. Each was fired from several feet away,
according to the medical examiner.

Mr. Hayes, who left the DA's office under disputed circumstances and is
now a defense attorney, explained why Mr. Webb qualified for a plea
bargain.

"A lot of times you look at something that legally isn't self-defense, but
you know nine out of 10 juries are going to think it was anyway," he said.
"They're going to say ... 'If that was me, I'd do the exact same thing.' "

Mr. Webb had one more thing working in his favor. He offered to help
Dallas police close the books on one of the city's most notorious unsolved
murders: the 1988 arson deaths of five young people in their Oak Cliff
home.

In a sworn statement, he said had been a lookout for a gang of drug
dealers at the time. Their turf was near the house that burned. In the
house was one of their teenage employees, who they believed was skimming
money.

On the night of the arson, Mr. Webb told police, he saw the dealers with
gas cans and rags. One of them paid him to get rid of the evidence, he
said.

Prosecutors filed a capital murder charge in 2001 against only 1 person, a
man Mr. Webb didn't name. Nevertheless, Mr. Webb went home on probation.

The arson-murder case was dismissed in 2005 for lack of evidence. The
prosecutor who handled the dismissal was Robert Rogers, who had recently
succeeded in sending Foyil Deal to prison for life.

Life after deaths

Mr. Webb faced new criminal charges  drug dealing and resisting arrest  2
years into his probation.

He was released on bail and soon failed two drug tests. A judge let him
stay free. He failed a 3rd test and started skipping some meetings with
his probation officer. Still, he was allowed to stay out of jail.

He then disappeared for 7 months. After his capture last summer, he
finally was jailed without bail. Mr. Webb declined an interview with The
News, and prosecutors are now trying to revoke his probation and send him
to prison.

Meanwhile, Mr. Deal has been settling into his new home, a 9-by-11 cell in
a prison infirmary. He uses an oxygen machine and a wheelchair. He shakes
uncontrollably. And he wonders aloud.

"Do they usually charge you with capital murder," he asked, "for trying to
protect yourself?"

(source for all: Dallas Morning News)