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

[Rick Halperin]

Oct. 7



TEXAS:

Regional public defender's office established


A Lubbock-based public defender's office set up to deal solely with
capital cases in 85 regional counties won't be handling Nadine Rogers'
murder case because it won't be accepting cases before the office opens in
January.

The 78-year-old widow was slain in her Abernathy home the night of July
23. A neighbor, 20-year-old Jose Tanguma, was arrested at the scene and is
being held in the county jail under $750,000 bond.

He was indicted Aug. 16 on one count each of robbery and aggravated sexual
assault. A trial date is pending in 64th State District Judge Rob
Kinkaid's court.

Tanguma, who moved to Abernathy a few months before the murder, is being
defended by court-appointed attorneys Jack Stoffregen of Lubbock and Peter
Clarke of Plainview.

A first in the state, the West Texas Public Defender's Office got off the
drawing board with recent approval of a five-year, $2.6 million state
grant that's to be matched by local funding - with state funding geared to
decrease as the individual counties' share increases over the years.

It's estimated Hale County's initial cost will be about $8,000-$10,000.

Costs are based on a formula that factors in a county's population and a
10-year average of capital cases filed. The minimum any county will pay is
$1,000.

Former Hale County District Attorney Terry McEachern successfully
prosecuted 5 capital cases during his 20-year tenure as DA - gaining the
death penalty in 2 of them (David Stoker and Paul Nuncio, both of whom
were executed) and life sentences in 2 others (Thomas Howard and Ronald
Kent Springer) in the Larry Howell case.

Joe Lee Guy - a defendant sentenced to death in the Howell case -
eventually had his sentence commuted to life.

Rogers' murder is the 1st capital case to be tried by District Attorney
Wally Hatch, who estimates the average cost of capital trials at $250,000.
He has yet to announce if he'll seek the death penalty against Tanguma.

According to the publication Texas Lawyer, the Legislature enacted the
Fair Defense Act of 2001 in an effort to "improve representation for
indigent defendants" - giving birth to the public defender's office.

Lubbock defense attorney Philip Wischkaemper and Lubbock County Court
Administrator David Slayton wrote the grant application proposing the
regional office because many lawyers are less than eager to take on
capital cases due to the time lost to their regular practices.

Capital cases can drag on for years over lengthy, often repetitious
appeals.

Stoffregen, who represents Tanguma, said in an Aug. 20 Texas Lawyer
article by Mary Alice Robbins that he supports the public defender concept
"because we can have a team on the job a lot more quickly than we can now.
When you finally get a mitigation specialist, an investigator and an
attorney, your case may be 5 or 6 months down the road."

His main concern, said Stoffregen, is that the public defender's office
may provide smaller counties "an incentive to seek the death penalty in
more cases."

Attorney Robert Spangenberg - who heads up a Boston-based consulting firm
that assists local governments that seek to improve indigent defense
procedures - says the West Texas defender's office "makes sense for the
defendant, who deserves a fair trial."

Said Hatch: "It's more efficient. Experienced capital-case lawyers can cut
down on appeals and reduce costs."

(source: Plainview Daily Herald)

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

Bush, Texas at Odds Over Death Case


To put it bluntly, Texas wants President Bush to get out of the way of the
state's plan to execute a Mexican for the brutal killing of 2 teenage
girls.

Bush, who presided over 152 executions as governor of Texas, wants to halt
the execution of Jose Ernesto Medellin in what has become a confusing test
of presidential power that the Supreme Court ultimately will sort out.

The president wants to enforce a decision by the International Court of
Justice that found the convictions of Medellin and 50 other Mexican-born
prisoners violated their rights to legal help as outlined in the 1963
Vienna Convention.

That is the same court Bush has since said he plans to ignore if it makes
similar decisions affecting state criminal laws.

"The president does not agree with the ICJ's interpretation of the Vienna
Convention,'' the administration said in arguments filed with the court.
This time, though, the U.S. agreed to abide by the international court's
decision because ignoring it would harm American interests abroad, the
government said.

Texas argues strenuously that neither the international court nor Bush,
his Texas ties notwithstanding, has any say in Medellin's case.

Ted Cruz, the Texas solicitor general, said the administration's position
would "allow the president to set aside any state law the president
believes is inconvenient to international comity.''

The Supreme Court will hear arguments in the case Wednesday.

Medellin was born in Mexico but spent much of his childhood in the United
States. He was 18 in June 1993, when he and other members of the Black and
Whites gang in Houston encountered Jennifer Ertman and Elizabeth Pena on a
railroad trestle as the girls were taking a shortcut home.

Ertman, 14, and Pena, 16, were gang-raped and strangled. Their bodies were
found 4 days later.

Medellin was arrested a few days after the killings. He was told he had a
right to remain silent and have a lawyer present, but the police did not
tell him that he could request assistance from the Mexican consulate under
the 1963 treaty.

Medellin gave a written confession. He was convicted of murder in the
course of a sexual assault, a capital offense in Texas. A judge sentenced
him to death in October 1994.

Medellin did not raise the lack of assistance from Mexican diplomats
during his trial or sentencing. When he did claim his rights had been
violated, Texas and federal courts turned him down because he had not
objected at his trial.

Then, in 2003, Mexico sued the United States in the International Court of
Justice in The Hague on behalf of Medellin and 50 other Mexicans on death
row in the U.S. who also had been denied access to their country's
diplomats following their arrests.

Mexico has no death penalty. Mexico and other opponents of capital
punishment have sought to use the court, also known as the World Court, to
fight for foreigners facing execution in the U.S.

The international court ruled for Mexico in 2004, saying the sentences and
convictions should be reviewed by U.S. courts.

Medellin's case was rejected by the 5th U.S. Circuit Court of Appeals. The
Supreme Court agreed to hear his appeal. While it was pending in
Washington, Bush issued a memo to his attorney general declaring that
state courts must enforce the international court's ruling.

2 weeks after the memo, Bush said the U.S. was withdrawing from an
international accord that lets the world court have the final say when
citizens claim they were illegally denied access to their diplomats when
they are jailed abroad.

The treaty had been used by the United States in its lawsuit against Iran
for taking Americans hostages in 1979.

The Supreme Court weighed in next, dismissing Medellin's case while state
courts reviewed Bush's order. Texas courts again ruled against Medellin,
saying Bush overstepped his authority by intruding into the affairs of the
independent judiciary.

In April, the Surpeme Court stepped in for a 2nd time, putting Bush and
the state he governed on opposite sides and setting up an unusual alliance
of interests.

Foreign inmates on death rows in California, Florida, Texas and up to a
dozen other states could be affected by the outcome.

Four of Medellin's fellow gang members also received the death penalty and
one, Sean O'Brien, was executed last year. 2 others had their death
sentences commuted to life in prison in 2005 when the Supreme Court barred
executions for those who were age 17 at the time of their crimes. Another
defendant does not have an execution date.

A 6th participant, Medellin's brother, Vernancio, was 14 at the time. He
was tried as a juvenile and is serving 40 years in prison.

Ertman's parents said they want to see the older Medellin brother put to
death, pointing out in court papers that his case has been going on longer
than their daughter lived.

The case is Medellin v. Texas, 06-984.

On the Net: International Court of Justice: http://tinyurl.com/yotzz7

(source: Associated Press)

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

Hangings only the start of grim Houston tale


On March 28, 1838, nearly 3,000 spectators moseyed back to town after
watching a double execution outside Houston. Gravediggers buried the
pine-boxed killers in a sandy hole near the gallows.

After nightfall, five men clutching spades and lanterns emerged from the
dark pines. The ghoulish raiders unearthed the corpses, cut off their
heads and carried them away in the shadows.

Stephen L. Hardin, an alpha dog among Texas Revolution mavens since the
publication of his Texian Iliad in 1994, tells of the head harvest and
enough Halloweeny doings to fill a trick-or-treat bag in his ripsnorting
new crime chronicle, Texas Macabre: The Melancholy Tale of a Hanging in
Early Houston (State House Press, November).

The book is a crawl through 1838 Houston, a festering hellhole where
disease and crime stalked the muddy byways and tarts walked the streets.

Victoria College's Hardin grounds his reader in the realities of an era
when Texans were urgently seeking wedlock with the USA. Boosters knew the
republic had to look pretty to woo the U.S., but a conspicuously ugly
blemish was the capital's accretion of bums, idle war vets and violent
drunks. Francis Moore Jr., a physician and editor of the Telegraph and
Texas Register, called the unlovable bunch "rowdy loafers."

2 of the "rowdies," David Jones and John Quick, faced trials for drunken
murders - Mr. Jones for killing an antagonist with a Bowie knife and Mr.
Quick for firing a fatal shot into a stranger.

Not much is known of Mr. Jones, other than that he was a Texas hero who
survived the Goliad massacre and fought at San Jacinto. Dim also are Mr.
Quick's footprints.

To editor Moore, the accused murderers were typical of the low-life scum
who engendered Texas' bad press in the "old states." The editor and others
of the town's oligarchy hoped severe punishment of the pair would warn
rowdies to clean up or clear out, while convincing citizens of the U.S.
that Texas had become a law-abiding address. Willing to sacrifice a couple
of rowdies to the greater good, editor Moore gleefully convicted them in
print before they even reached court.

District Judge James W. Robinson, former provisional acting governor,
heard both cases. He overruled every defense motion by J.C. Watrous, Mr.
Quick's attorney.

District attorney A. M. Tomkins prosecuted both cases. Described as "a man
destitute of all moral principle, a spendthrift, a gambler and a
debaucher," he was twice indicted in his own court for assault and
battery.

Professor Hardin mines the 1838 diary of a young man about Houston who
drank mint juleps at breakfast and admitted ogling the girls in church. He
was physician J. H. Herndon, a witness to the hanging and 1 of the 5
"scientists" who beheaded the hanged men. They studied bumps on the
killers' skulls and probed their brains.

Dr. Herndon wrote: "Jones had a very bad head, all moral power very
deficient, the bumps of destructiveness and firmness remarkably large. ...
Quick had a much better head. His moral powers pretty well developed."

Hardin concluded, "The only reason for this desecration was the
satisfaction of perverse curiosity; rich boys playing at their hobbies."

(source: Dallas Morning News)

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

Focus: Lethal Injection


Justice now a joke

Re: the article "Execution postponed as legality considered" (Wednesday):

So there's a "hold" on executions here in Texas - lethal injection is
"cruel and unusual" punishment.

What about the murder victims? Were their deaths considered "cruel and
unusual" punishment? Whatever happened to "equal justice for all"? What a
joke!

Tom Hughes, Fredericksburg

--

Let Texas be Texas


According to the Texas Department of Criminal Justice Web site, "On March
24, 2001, in Arlington, Heliberto Chi and one co-defendant murdered the
manager of a men's clothing store during a robbery. Chi entered a men's
clothing store armed with a .38-caliber handgun while the co-defendant
waited in the car outside. Chi fatally shot the 56-year-old white victim
in the back. Chi also shot an 18-year-old Hispanic male in the back. The
2nd victim was transported to a local hospital, where he was treated and
released."

This is what Heliberto Chi was sentenced to die for.

One has to wonder if the 56-year-old victim Chi shot in the back suffered
an unconstitutionally cruel and unusual punishment. And what about the
other victim?

The Bible says an eye for an eye. Let Texas be Texas and allow justice to
be carried out.

Louie C. Cisneros

--

5 years, then it's all over


Who the heck is saying lethal injection is cruel and unusual punishment?
Those murderers are living 10 years longer than their victims; they are
going rather peacefully.

Death row inmates should only have 5 years, at the maximum, to have their
appeals heard and then they die. 10 years after the case has been tried in
court, people tend to forget the victim's demise.

The murderers can have a choice of dying by lethal injection, hanging or
shooting. I wonder which one would be chosen by those cowards.

B.E. Engle, Spring Branch

--

Thanks for lone voice


Thanks to Rebeca Chapa for her column opposing the death penalty
("Innocence is not the only issue in the death penalty debate," Thursday),
and thanks to the Express-News for printing it. I'm sure there will be
plenty of negative letters, but this reader agrees with her.

Mark Cochran

(source: Letter to the Editor, San Antonio Express-News)

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

Could Kent lose his bench?----Judge may face Congress over abuse
allegations


For 17 years, U.S. District Judge Samuel B. Kent presided like a king over
his court in Galveston, using the power of his pen to write sharply worded
opinions that struck lawyers and litigants like lightning.

In 1993, he said lawyers offered "half-baked, hair-brained theories" that
were "illogical, insupportable, nonsensical and some even extremely
outlandish."

In 1996, he ridiculed a request to move a case to Houston: "Defendant will
be pleased to discover that the highway is paved and lighted all the way
... (and) free of rustlers, hooligans or vicious varmints."

His words earned the judge a national reputation in law schools and on
blogs as a jokester and bully. But it's his behavior in chambers that has
landed the jurist in serious trouble today.

Legal experts are asking whether Kent, 58, has gone too far to remain on
the bench  and to be credible deciding sexual harassment cases after being
publicly accused of the same behavior himself.

On Sept. 28, the Judicial Council of the 5th U.S. Circuit Court of Appeals
reprimanded Kent for sexual harassment of one court female employee and
mistreatment of others.

The episodes of alleged abuse began a decade ago and involved at least 3
employees, according to interviews with two women and with attorney Rusty
Hardin, who represents the 3rd.

In the most recent incident, the judge was accused of inappropriately
touching a female case manager in his chambers in March.

Kent's cases were removed during the investigation, and he received a
four-month paid leave of absence as part of his punishment. He continues
to draw his $165,000 annual salary.

His accusers have criticized the leave as an undeserved paid vacation.

Kent and his attorney have not responded to repeated requests for
interviews.

The harassment complaints against Kent are unprecedented in scope in the
federal judiciary and among the most serious faced by any judge
disciplined in recent years, according to Marina Angel, a Temple
University law professor who authored a national study of sexual
harassment among judges in 1991.

No mere scolding

Angel called the possibility that Kent would return to the bench
"horrendous."

"Given his pattern that's not enough to let him know that this conduct is
totally unacceptable and there's no good reason why he should stop," she
said.

Yet a reprimand is considered harsh punishment among federal judges who
tend to have a strong sense of importance, said James Alfini, dean of the
South Texas College of Law.

"These are people who have been given an extraordinary amount of power and
authority and now it's being taken away from them," Alfini said.

As the only federal district judge in Galveston, Kent is the ranking
federal official in a small fiefdom. The power of his lifetime appointment
is reflected by the fear of attorneys and former court employees, who
generally declined comment.

Kent, who grew up in Houston and graduated from the University of Texas
law school, spent 15 years at the Galveston offices of the law firm of
Royston, Rayzor, Vickery & Williams. He was appointed in 1990 by President
George H.W. Bush.

Diverse caseload

Kent has authored more than 800 opinions and presided over countless other
cases, many of which involved disputes on the high seas. Admiralty law is
his specialty.

Yet he has decided cases as diverse as whether a local tavern owner could
legally sell brews as "Star Bocks"  despite a challenge from the
soundalike Seattle coffee giant  to sexual harassment claims.

At least 35 of his opinions included the word "sexual harassment." In the
most recent, he found against the female plaintiff, who alleged harassment
but failed to show up on time for her jury trial. She was initially
ordered to pay legal costs for the defendant  as well as the cost of
doughnuts and coffee for the jurors. (Later Kent relented and took the
doughnuts and coffee off her tab.)

Lori Hood, a Houston attorney who was involved in the defense, said she
found Kent to be fair in his handling of the case and other harassment
matters.

"He's a brilliant judge who doesn't suffer fools lightly," she said.

Steven Lubet, author of a 2001 article that dissected Kent's bullying
style, found Kent to be the undisputed leader among federal jurists in the
use of insulting adjectives like "asinine."

Lubet predicted that lawyers representing alleged victims will ask Kent to
recuse himself in harassment cases.

'Ethical problems'

In the last 6 years, there have been signs that Kent's 5th Circuit
colleagues were displeased.

In 2001, all cases involving his best friend, attorney Richard Melancon,
were reassigned without explanation. In 2005, he was formally rebuked in a
5th Circuit opinion for showing favoritism. In May, he had some cases
reassigned again before being ordered to take a leave in August.

Ilya Somin, a law professor at George Washington University who clerked at
the 5th Circuit, noted that federal judges have limited abilities to
discipline a colleague: They can reprimand and reassign cases, but they
cannot take away his salary or force him out.

Somin said the public record on Kent's "long history of ethical problems"
is significant enough that Congress should look into it.

U.S. Rep. James Sensenbrenner, R-Wis., as well as the presidents of the
National Organization for Women, Judicial Watch and other law professors,
have said the House Judiciary Committee should investigate whether Kent
should be impeached.

13 federal judges have been impeached in the history of the United States.
The most recent was U.S. District Judge Walter L. Nixon of Mississippi,
who was charged with lying to a grand jury and convicted and removed from
office in November 1989.

(source: Houston Chronicle)

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

Keller shames Texas again


Sharon Keller, Texas' top judge on criminal matters, may have shocked much
of the nation last week when she ordered a clerk not to stay open an extra
20 minutes to accept a last-minute appeal for a man on death row.

But she didn't shock those who know her.

After all, this is the same judge who 9 years ago responded to DNA
evidence indicating the innocence of a man who had been in prison for
years on a rape charge by writing that he may have used a condom.

More on that below.

Now Keller, the presiding judge of the Texas Court of Criminal Appeals,
put us on the front page of the New York Times and into the foreign press
by refusing to allow the court clerk's office to stay open an extra
half-hour to take the last-minute appeal of a Michael Richard, who raped
and killed a Harris County mother of 7 in 1986.

A deadly computer crash

Richard was executed that evening. It's not as though the appeal was
frivolous or even unexpected.

Several of her colleagues on the court stayed late, assuming that an
appeal would be filed.

Earlier that day the U.S. Supreme Court had accepted a Kentucky case
challenging lethal injections as often being so painful as to constitute
cruel and unusual punishment, which is barred by the Constitution.

University of Houston Law Center Professor David Dow and others working on
Richard's case scrambled to seek a stay of Richard's execution, scheduled
for 6 p.m., since Texas uses basically the same method as Kentucky.

But their computer crashed, making it impossible to print out and deliver
11 copies of the 108-page petition by 5 p.m. They figured they could make
it by 5:20 or 5:30 and called the clerk's office about 4:30 to ask them to
stay open until then.

Colleagues angered

Someone from the clerk's office called Keller, who said no. She said she
wasn't told that a computer failure was the problem, as if that made any
difference. It was obvious from the Supreme Court's action that a
legitimate issue would be raised.

In fact, in the week since Keller's callous closing, the U.S. Supreme
Court has blocked one Texas execution and the Court of Criminal Appeals
another, based on basically the same facts as Richard's.

Some of Keller's colleagues on the Court of Criminal Appeals were angered
by her bureaucratic approach, especially since she didn't bother to inform
them that an extension had been requested.

Judge Paul Womack told the Chronicle he stayed until 7 p.m.: "It was
reasonable to expect an effort would be made with some haste in light of
the Supreme Court (action). It was an important issue. I wanted to be sure
to be available in case it was raised."

Judge Cheryl Johnson, who was assigned to handle any late motions in the
Richard case, learned about the request from a story in the Austin
American-Statesman, to her "utter dismay."

She told the paper: "And I was angry. If I'm in charge of the execution, I
ought to have known about those things, and I ought to have been asked
whether I was willing to stay late and accept those filings."

Judge Cathy Cochran told the Chronicle: "I would definitely accept
anything at any time from someone who was about to be executed."

A flexible theory

Not Keller. She has shown herself capable of extraordinary mental
gymnastics to avoid overturning a conviction.

Back in 1990, Roy Criner was convicted of raping a 16-year-old girl and
sentenced to 99 years. She was murdered, apparently in connection with the
rape, but the evidence wasn't strong enough to try Criner with the murder.

In fact, the evidence was so weak that a Beaumont appeals court ruled that
"no rational trier of fact could have found beyond a reasonable doubt all
of the essential elements of the offense charged."

The Court of Criminal Appeals, however, overruled the lower appeals court.

When DNA tests, unavailable at the time of the trial, later showed that
semen found on the girl was not Criner's, both the trial judge and the
Beaumont appeals court ruled he deserved a new trial. Again, the Court of
Criminal Appeals disagreed.

This is when Keller came up with her "he might have worn a condom" theory,
arguing that he may have raped her after she had sex with someone else.

She even callously put into a footnote that the girl "loved sex," a piece
of "evidence" that was never presented to the jury nor tested under
cross-examination.

As it turned out, Keller's "theory" was proved to be nonsense. After 10
years in prison, Criner was finally released when more sophisticated DNA
evidence showed that the semen belonged to the rapist.

(source: Column, Rick Casey, Houston Chronicle)