[Deathpenalty] death penalty news----TEXAS

[Rick Halperin]

Oct. 1



TEXAS:

'Jessica's Law' needs enacting ---- Children require our care


"They put new lights in downtown. All well and good, but they screwed up
the timing on one. Where you used to drive straight through, now you have
to stop and wait at 8th street on Fillmore. Then, once it releases you,
you catch the yellow at the next light, if you are quick..." - From James
[Join this discussion] Texas is in the middle of a campaign season and,
accordingly, promises are flying about like so much Panhandle dust.

But one particular campaign pledge - to protect our children, society's
most vulnerable members - deserves a close look.

It comes from Lt. Gov. David Dewhurst, who is running for his 2nd term.

And it is tough.

Dewhurst seeks to add Jessica's Law to Texas' criminal statutes. The law
is named for Jessica Lunsford, a Florida girl raped and murdered by a
convicted sex offender in February 2005.

Dewhurst wants the Legislature to enact a law that would impose a minimum
sentence of 25 years to life for those convicted of a sex crime committed
against a victim younger than 14. He wants the state to double the statute
of limitations on these sexual abuse cases from 10 to 20 years.

And he wants the state to impose the death penalty on anyone convicted of
a 2nd sexual crime against someone younger than 14.

"By enacting Jessica's Law in Texas," Dewhurst said in a statement, "we
are sending a strong message: There is no room in Texas for those who
would harm our children."

This proposal likely will generate great interest in the state, which has
demonstrated for more than 2 decades that it has little reluctance to
execute those convicted of capital crimes.

And in the interest of protecting our children, the state should embrace
this proposal.

Given the anticipated makeup of the 2007 Legislature and its aggressive
approach to crime-and-punishment issues, the Dewhurst proposal could
resonate with lawmakers.

All our hearts break when we hear of predators committing unspeakable acts
against our children. If society is unable to protect its youngest members
against these monsters, then who can?

That this proposal comes in the context of a campaign is of little
consequence. Dewhurst's idea must not wither once the last ballots are
counted on Election Day.

(source: Editorial, Amarillo Globe)

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

Wilson retires after 30 years as judge


The retirement of Judge David Wilson of the 217th District Court in
Angelina County marks the end of a 30-year era.

Having disposed of an estimated 20,000 cases in his tenure, Wilson has
heard, seen and read three decades' worth of issues that have shaped
Angelina County. At 66, he's presided over 2 capital murder cases that
sent 2 defendants to death row, a medical malpractice case that was later
heard by the Supreme Court of Texas and a nationally publicized ruling
that freed a man from prison 4 decades after he was convicted, not to
mention thousands of low-profile criminal cases and civil cases.

On Wednesday he sat down with The Lufkin Daily News to reflect on his
judicial career.

Starting out

"The 1st big case I ever took on was a medical malpractice suit. It was a
few months after I began hearing cases. For a fledgling judge, it was a
lot of undertaking ... there were a lot of evidential issue," he said. The
case was later appealed and heard by the Supreme Court of Texas, Wilson
said.

Prior to Wilson's March 1, 1977 appointment to the first judicial seat of
the 217th court, he had worked as Gerald Goodwin's assistant in the
county's district attorney's office.

After working under Goodwin for 18 months, Wilson took the bench.

"The transition was not difficult for either one of us," Goodwin said. "I
never felt he favored me more or less than my opponent."

While Goodwin may not have noticed an outward change of Wilson's
professional treatment, Wilson said his new role took some getting used to
as he made the transition from a player an umpire or referee. "I had to
adjust my thinking," he said. But there were times, he admitted, when he
found it difficult to bite his tongue to avoid interjecting during a
lawyer's argument. "After a while it became second nature," he said.
"Looking back I can see I have grown a lot."

In 1990, Goodwin won a county election and became the 2nd judge of the
159th district court. He and Wilson worked together closely by switching
the workload of criminal and civil cases every six months. For the 1st
half of the year, Wilson would preside over the civil docket while Goodwin
took the criminal. At the half-year mark, the 2 would switch. It's a
unique practice that the county's district judges still use today.

"There has to be a tremendous amount of cooperation between judges to make
it work," he said.

An "orderly court"

And then there were moments when Wilson showed a flare of disapproval. He
had two signature moves for communicating it. He would first clear his
throat, followed by the under-turned, joint wiggling of his 2 index
fingers, a gesture that signaled the lead attorneys to approach his bench.

"He ran a very orderly court," Goodwin said.

As a young lawyer, Angelina County District Attorney Clyde Herrington
admitted Wilson's method intimidated him at first.

"He has a tendency to say what he thinks," Herrington said. "As I got to
know him, I got used to it. I found it hard to argue with someone who is
ruling by his interpretation of the law and in accordance with his
beliefs. He has always ruled that way."

Lufkin defense attorney Eddie McFarland described Wilson's rulings as
fair.

"I always felt he did the best he could, given with what he had to go on.
He tried to be fair to everyone who let him. I've always had a lot of
respect for him," he said.

"Judge Wilson is just a good person and a good judge," said Goodwin, who
not only worked in the courthouse with Wilson for 25 years, but also has
many memories of him outside of work.

Although many described his rulings as always fair, he was not always
tolerant.

One thing Wilson made a point of interrupting in court was misbehavior,
especially when he handled domestic cases also known as "bench trials."

"I never did care for the mudslinging," he said. "I used to listen to it
and not say a whole lot, but my philosophy changed when I saw both sides
weren't accomplishing anything.

"When a marriage breaks up, you don't chunk rocks at the other side just
for the sake of doing it," he said. "Especially when kids are involved."

Memorable cases

The capital murder trial of Willie Mac Modden was Wilson's first of two
cases that resulted with a jury imposing the death penalty.

In 1984, an Angelina County jury sentenced Modden to death twice for the
stabbing murder of Deborah Ann Fontenot Davenport, a 27-year-old gas
station attendant.

Modden died in April after the state criminal court of appeals overturned
his sentence, calling the ruling unconstitutional after the convicted
murderer was proven to be mentally retardation.

2 years later, another jury convicted David Lee Lewis, then 21, in the
shooting death of Lufkin resident Myrtle Ruby, 74, who confronted Lewis
after he broke into her home. Wilson presided over the case then and
recently turned down Lewis' appeal. After reviewing the facts of the
appeal, Wilson decided the 42-year-old convicted murderer with an
eighth-grade education is not mentally retarded. It is an opinion he has
passed along to the state criminal court of appeals.

There was the trial of Ruthie J. Porter and Linda Shepherd, who were
convicted of robbing a family-owned liquor store, Arriola's, in the 1980s,
shooting and killing the store owners. The trial lasted 23 days, McFarland
said, who defended Porter.

"It was a pretty emotional trial," Wilson said.

Then there was the case of Robert Carroll Coney, whose conviction Wilson
overturned after his research revealed Coney had been forced into
confession by investigators at the Angelina County Sheriff's Office. The
report stated deputies had broken Coney's hand during interrogation,
forcing him to confess. Coney was freed after spending 41 years in prison
for a 1962 robbery conviction.

When asked what other criminal cases have had a lasting impact on the
retired judge, Wilson rattled off a few more, namely the recent trial of
Bennedetha Buckjune.

"Buckjune took a toll on me as much as any of them," he said, referring to
the trials of Modden and Lewis. "I still have a difficult time
understanding how someone could do that to her own children."

A jury convicted Buckjune of raping, beating and starving her stepchildren
in August. Wilson handed Buckjune 13 prison sentences, including three for
75 years each, to be served concurrently.

Changes over the years

"As the law has changed and progressed over the years, it has brought a
lot more cases," said McFarland, who has been practicing law for more than
56 years. And more cases have brought more paperwork.

"Most people don't realize the pressure on a district judge and the amount
of paper work that has increased. (Judges) are just engulfed by it,"
McFarland said.

As the workload increased so did the staff size of the district clerk's
office and the district attorney's office, along with the technology,
Wilson said.

"When I first moved into the courthouse, the clerk's office was recording
everything by long-hand or on typewriters. There was one clerk and 2
assistants. The district attorney had one assistant. Today, there are
about a dozen people working in the district clerk's office, and the
district attorney has four assistant attorneys.

"The court will go on"

Herrington, who has tried cases in Wilson's courtroom since he took office
in 1990, said the judge's retirement is going to be a "real change."

"To not have him on the bench is going to give me a strange feeling. It's
going to be a real change," he said. "I have great admiration for him. He
always had the courage to do what's right, even if it was not popular at
the time."

Goodwin, who retired in 2001, offered empathy.

"When you leave something you've done for that period of time, the job
almost becomes your life," said the retired Angelina County district judge
and district attorney.

But Wilson has not completely written off his judicial career. He has
signed up to be a visiting judge, meaning if a full-time judge takes a
vacation or is sick, Wilson may be asked to hear a case or 2.

On Friday, Texas Gov. Rick Perry announced his appointment of Barry Bryan,
current judge of County Court-at Law No. 2, to succeed Wilson in the 217th
Angelina County District Court. Bryan will serve until the results of a
general election in November. However, since Bryan has no opponent in the
upcoming election, Perry's appointment is essentially moving Bryan into
office 3 months early. Bryan is the 2nd judge in the county's history to
preside over the 217th district court. Wilson is expected to swear Bryan
into office Monday morning, the same day he will begin hearing cases.

"As they say, the court will go on, but (Wilson) is going to be missed by
a lot of people," Goodwin said.

(source: Lufkin Daily News)

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

2nd Yates expert paid $242,966.74


Remember when it turned out that prosecutors had paid $105,000 to their
lead psychiatric expert in the 1st Andrea Yates trial, despite the fact
that his false testimony led an appeals court to overturn the jury's
guilty verdict?

County records show the numbers  and results  in July's 2nd trial are even
worse.

Dr. Park Dietz was the forensic psychiatrist who told jurors that Yates
may have seen an episode of Law & Order in which "a woman with postpartum
depression who drowned her children in the bathtub was found insane, and
it was aired shortly before the crime occurred."

Testimony showed the program to be one of Yates' favorites. Only problem
is, no such episode of Law & Order was ever produced.

Are you sitting down?

The mistake may have dented Dietz's vaunted reputation, but it helped his
pocketbook. He earned $37,000 more for his testimony in the 2nd trial.

But Dietz looks like a bargain compared with the new hired gun brought in
by the DA's office for the second trial.

Are you sitting down?

Dr. Michael Welner and his consulting firm, the Forensic Panel, were paid
a jaw-dropping $242,966.74 for work on the 2nd Yates trial.

At least Dietz's testimony worked with the jurors in the 1st trial but was
overturned by an appeals court because of the mistake.

Welner's testimony seems to have backfired with the 2nd jury, which found
Yates not guilty by reason of insanity.

"Although Dr. Welner's qualifications were impressive, his presentation in
court was not good," said juror Bobby Chism. "He came across as very aloof
and self-serving."

Phony 'peer review'

Chism said Welner's testimony was based on an interview with Yates five
years after she killed her children.

"Earlier expert testimony confirmed the defense's contention that after a
person has been treated for psychosis they have a problem remembering what
happened during their psychosis, and it gets harder over time to remember
the details," Chism said.

He and juror Michael Olson also brought up Welner's self-described "peer
review" system. His Web site describes his firm as pioneering a "peer
review" process that makes it "America's foremost forensic consulting
institution."

But defense attorney Wendell Odom brought out during the trial that
Welner's idea of "peer review" differs considerably from that of academic
journals.

When a scientist submits a paper to a first-rate journal, the editors send
the paper to experts in the same field to critique. The author has no say
in the selection of the reviewers. The result is that many papers don't
get published.

But, as Odom brought out, Welner himself hires his "peer reviewers."

Simply put, employees and employers are not "peers."

This arrangement, said juror Olson, "really compromised his integrity."

"Most of us really felt that he did more harm than good to the
prosecution's case," Olson said, adding, "Several of us concluded that his
analysis of 'the ultimate opinion' was built backwards: He started with
the answer and then built his conclusion going back."

Juror Gina Dickinson joined Olson in citing another issue.

"There was testimony by a defense witness, Joe Porto, who is an assistant
U.S. attorney, that showed that Dr. Welner had contacted the defense team
in 2001 wanting to work for them, not the prosecution," she said. "That
put a shadow over his testimony, in my opinion."

(Welner denied that he had offered to work for the defense, but at least
some jurors believed Porto.)

Dickinson did not find credible Welner's conclusion that, in her words,
Yates was "a selfish woman that wanted out of her situation."

"After hearing and reading all the doctors' notes while she was in the
Harris County Jail, there is no way anyone could come to the conclusion
that she was just selfish," she said.

All 3 jurors said Welner hurt the prosecution case more than helped it.

"It's a shame that the state had to spend that kind of money on a case
that really should never have gone to trial," Dickinson said.

It could have been worse.

Once prosecutors Joe Owmby and Kaylynn Williford learned that Welner hired
the 7 "peer reviewers" he used in the case, they asked about the fee
arrangement.

It turns out he billed Harris County $350 an hour for their time but took
$75 of each "peer's" hourly pay for himself.

The DA's office refused to pay Welner that mark-up, saving about $8,200.

Well, it's something.

Asked if he thought the $243,000 spent on Welner was justified, District
Attorney Chuck Rosenthal, who notes that the money comes out of the
forfeiture fund rather than tax dollars, asked:

"If we were right, and Mrs. Yates was sane, how much should Welner's
testimony cost, in nontax dollars per dead child? Especially when the
media poisoned the well from which prospective jurors drank?"

I would hope, if Yates were sane, the DA's office wouldn't need to drill
so deep to find an expert to make their case.

(source: Rick Casey, Houston Chronicle)