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

[Rick Halperin]

Oct. 17



TEXAS:

Federal judge halts execution


A federal judge has stopped the execution of a man set to die next month
for killing a Tyler woman and stealing her purse and car in 1997.

Tuesday's ruling marks the 3rd reprieve for Allen Bridgers. His execution
last year was stopped after the Texas Court of Criminal Appeals ordered
his case back to Smith County for the trial court to consider whether he
is retarded.

The U.S. Supreme Court has ruled that mentally retarded people cannot be
executed.

His initial execution date was in 2001, the same day that Oklahoma City
bomber Timothy McVeigh was set to die. At that time, Bridgers' appeals had
not been exhausted.

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

A judge has halted a convicted killer's execution on the heels of a U.S.
Supreme Court decision to consider whether lethal injection is legal.

Dale Devon Scheanette was scheduled to die next month for killing a
teacher's aide in her Arlington apartment bathtub. But a judge withdrew
the execution date, citing other cases that were halted.

Last month the Supreme Court agreed to hear a challenge to lethal
injection from inmates in Kentucky.

2 weeks ago, the Texas Court of Criminal Appeals stopped a Honduran man's
execution after his attorneys claimed lethal injection is
unconstitutionally cruel.

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

Appeals court throws out Texas inmate's death sentence


An appeals court has thrown out the death sentence of a Texas inmate
convicted of killing a 3-year-old girl, ruling that jurors failed to
adequately consider the man's abusive childhood and drug history before
deciding he should die.

The 5th U.S. Circuit Court of Appeals on Monday ordered that Fernando
Garcia, 46, be resentenced because of improper jury instructions.
Prosecutors are deciding whether to appeal to the U.S. Supreme Court.

Garcia was convicted for the 1987 rape, beating and strangulation of
Veronica Rodriguez in Dallas. He was sentenced to death in 1989.

But the appeals court said jurors were given flawed special instructions
about mitigating evidence, which is information a jury can consider that
could allow for a lesser sentence.

"A juror who credited Garcia's evidence of an abused background and
believed that his childhood, or his substance abuse, made him less
culpable could not ... have given effective voice to this conclusion
through the special (instructions) in this case," the court's 3-member
panel wrote in its opinion.

Rodriguez's body was found wrapped in a blanket under Garcia's bed in the
garage apartment located behind the girl's house, according to court
records. Police said the girl was brutally sexually assaulted, bitten 12
times, severely beaten on her head and strangled.

The appeals court ruled that Dallas County jurors weren't allowed to give
sufficient weight to factors that might cause them to impose a life
sentence rather than death.

A psychiatrist testified at Garcia's trial that he has a long history of
drug abuse and that the inmate had said he was sexually abused as a child.
Garcia had previously been convicted of sexually related offenses.

Jurors were limited in how they could consider the evidence related to
Garcia's abuse, said Alexander Lee Calhoun, the inmate's appeals attorney.

"If the jury wanted to give mercy based on this evidence, based upon this
child abuse and drug abuse, it couldn't have done so," Calhoun said.

Prosecutors claim that resentencing is not needed because Garcia was not
harmed even though the jury did not properly consider mitigating evidence.

"In this case, the circumstances surrounding the murder were so bad that
we don't think that if given the opportunity to look at mitigating
evidence, the jury would have made a different decision," said Dallas
County District Attorney Craig Watkins.

But prosecutors are prepared to proceed with resentencing if needed, he
said.

Calhoun said Garcia is one of dozens of Texas death row inmates who have
similar problems with this type of jury instruction.

This year, at least 4 Texas death row inmates had their sentences
overturned because of flawed jury instructions related to mitigating
evidence.

These jury instructions haven't been used in Texas since 1991, when state
law was changed so that jurors now have to decide if mitigating evidence
they heard convinced them a life sentence would be more appropriate.

(source for all: Associated Press)

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

Lawmaker says judge mishandled last-ditch appeal


State Rep. Lon Burnam said Tuesday that the presiding judge of Texas'
highest criminal court should face disciplinary procedures that include
being removed from office for closing the court to an 11th-hour appeal
from death row that could have prevented an execution pending a U.S.
Supreme Court review of lethal injection.

Burnam, a Fort Worth Democrat, called the action last month by Judge
Sharon Keller "unprofessional and unethical" and said it undermined the
integrity of the Texas court system.

"I think it was horribly egregious and a gross miscarriage of justice,"
Burnam said one day after lodging a formal complaint with the State
Commission on Judicial Conduct and asking the agency to investigate
Keller's actions. "Her job is to uphold the law, and she failed in that
responsibility." Keller's office referred questions about the matter to
Judge Tom Price, who also serves on the criminal appeals court and has
agreed to field media inquiries. Price did not return calls seeking
comment.

Condemned killer Michael Wayne Richard was executed Sept. 25 for the rape
and murder of a Harris County woman in August 1986. The execution came the
same day that the U.S. Supreme Court announced that it would hear
arguments in a Kentucky case over whether the procedure used for lethal
injections violates the constitutional prohibition on cruel and unusual
punishment.

Richard's lawyers had drafted a motion to have their client's execution
stayed until after the high court had ruled in the Kentucky case, but they
did not have it ready before the appeals court in Austin had closed for
business at 5 p.m. Richard's lawyers called to ask that the court remain
open an additional 20 minutes, but Keller ordered that the traditional
closing time be observed.

Less than a week after Richard was put to death, the Supreme Court stayed
an execution scheduled in Huntsville because of the pending review of
lethal injection. A few days later, the criminal appeals court halted
another execution pending the review.

Meanwhile, 20 Texas lawyers have signed a complaint filed Wednesday that
accuses Keller of violating Richard's civil rights by cutting off his
last-ditch appeal.

In his letter, Burnam said judges have an obligation to keep the
courthouse doors open when they know a legitimate appeal from death row on
execution night is on its way.

"It is my opinion that [Keller's] actions were unprofessional and
unethical and constitute judicial misconduct," Burnam wrote. "I urge you
to take prompt and appropriate disciplinary action against Judge Keller,
which should include serious consideration of removal from office."

Keller, a Republican, has served on the criminal appeals court since 1995.

A spokesman for the judicial conduct commission said the 11-member panel
is duty-bound to investigate all complaints lodged against judges.
According to the agency's mission statement, the commission must "protect
the public, promote public confidence in the integrity, independence,
competence, and impartiality of the judiciary, and encourage judges to
maintain high standards of conduct both on and off the bench."

If a judge is found to have engaged in misconduct, the commission is
empowered by the Texas Constitution to issue sanctions, censures,
suspensions or recommendations for removal.

Online: www.scjc.state.tx.us

(source: Fort Worth Star-Telegram)

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

Views divided on judge in dispute over executed man----Keller is seen
either as a solid jurist or an ideologue


SHARON KELLER

Presiding judge, Texas Court of Criminal Appeals

 Date of birth:

Aug. 1, 1953, Dallas

 Law degree: Southern Methodist University, 1978

 Dallas County assistant district attorney: 1987-1994

 Elected Court of Criminal Appeals: 1994

 Elected as presiding judge:

2000, 2006

 Term expires: Dec. 31, 2012


Sharon Keller won election to Texas' highest criminal court 13 years ago
with a promise to be a staunch supporter of the death penalty and a
"pro-prosecution" judge.

Since that time, Keller has risen to become the presiding judge of the
Texas Court of Criminal Appeals with a term lasting through 2012.
Depending on the point of view, she is either a tough-as-nails jurist or
an ideologue who puts the execution of convicted criminals ahead of
constitutional due process.

A fellow judge once accused her of turning the court into a "national
laughingstock" after Keller said DNA tests clearing a convicted rapist
were not conclusive because the man could have worn a condom.

And now 20 lawyers have filed a grievance against her with the State
Commission on Judicial Conduct because on Sept. 25 she ordered the court
clerk's office to close promptly at 5 p.m., denying death row inmate
Michael Richard an opportunity to get a stay from the U.S. Supreme Court.
He was executed a little more than three hours later.

"This isn't a liberal or conservative matter. No matter what your opinion
is on the death penalty, you've got to have due process," said Jim
Harrington, a civil rights lawyer who filed the complaint on behalf of the
other attorneys. "She's out of control. It's frightening to think of the
arbitrary power she wields."

But former Presiding Judge Mike McCormick, who led the court in a
conservative direction in the 1990s with Keller's help, said Keller has
worked hard to preserve the idea that once convicted, the burden is on the
defendant to prove they got a bad trial or that they are innocent.

"Sharon Keller is one of the brightest individuals I have ever known,"
McCormick said.

Her rise to power

Keller, 54, declined to be interviewed for this article. She is a Dallas
native. Her parents owned a popular local chain of hamburger stands. With
an undergraduate degree from Rice, Keller obtained her law degree from
Southern Methodist University.

In last year's elections, Keller won her 2nd term as presiding judge of
the Court of Criminal Appeals. Her term of office runs until 2012.

Keller had been working as a Dallas County assistant district attorney for
six years when she first ran for the Court of Criminal Appeals in 1994. In
an atmosphere of public anger over criminals getting cases reversed on
what appeared to be technicalities, Keller promised to be a
prosecution-oriented judge.

During that race, she equated the executions of convicted killers with
protecting human rights.

"The failure to impose capital punishment on convicted murderers is a
human rights violation  particularly if we take into account the human
rights that murderers violate when left alive to kill again," Keller said
in an op-ed piece published in the Houston Chronicle. "Society should
answer the most serious crimes with the most serious punishments."

Controversial rulings

Since joining the court, she has developed a reputation for rulings that
speeded executions.

 Keller was in the court majority that allowed the 2003 execution of
Leonard Rojas to go forward despite a showing that his lawyer had just two
years of experience, had his law license suspended 3 times and had missed
a deadline for federal appeals because of bipolar disorder.

Three judges wrote a dissenting opinion, saying: "A capital murder habeas
proceeding is no place for a green attorney with multiple suspensions from
the State Bar."

Keller responded by saying the lawyer only needed to be competent when
appointed. She said the fact the Bar had probated the lawyer's suspensions
showed that the Bar "still found counsel to be competent to practice law."

In wording that echoes Keller's actions in the Richard case, she
complained that Rojas' complaints of incompetent counsel "were not brought
to this court's attention until mere days before applicant's scheduled
execution."

 Prior to the Richard execution, the biggest controversy of her tenure on
the court came when Keller wrote an opinion saying DNA evidence did not
prove convicted rapist Roy Criner was innocent even though the semen in
his alleged victim was not his. Keller said Criner could have worn a
condom during the rape, a theory that was not raised by the prosecution in
his trial.

On the PBS program Frontline, Keller was asked how Criner could prove his
innocence. She replied: "I don't know."

Fellow appeals court Judge Tom Price told Texas Lawyer that Keller had
turned the court into a "national laughingstock." Price ran against Keller
in 2000 and 2006, losing both times. He did not respond to a request for
an interview.

Further DNA testing proved saliva on a cigarette butt at the scene of
Criner's alleged rape belonged to another man, whose DNA also matched the
semen. Criner received a pardon from then-Gov. George W. Bush in 2000.

 In 1996, Keller wrote an opinion that death row inmate Cesar Fierro
received a fair trial despite the fact his confession was coerced by
threats that Mexican police would torture his parents. After learning of
the coerced confession, the prosecutor and judge in the case called for
Fierro to receive a new trial.

"We conclude that the applicant's due process rights were violated,"
Keller wrote for the court. "But, because we conclude that the error was
harmless, we deny relief."

Keller, writing for the court majority, said Fierro could have been
convicted on a co-defendant's testimony alone.

Keller's legal opinions have not been the only source of controversy for
the jurist.

 Other members of the court in 2002 stripped Keller of the sole authority
to hand out grant money after she gave $225,000 to a little-known legal
organization to provide legal training for lawyers who represent poor
clients. The group was headed by a one-time staff attorney at the court.

 Keller, to help balance the state budget, in 2003 announced a cut of
$860,000 from a fund that pays for lawyers who represent death row
inmates. Keller said the money would not be needed before the next budget
cycle.

State Rep. Lon Burnam, D-Fort Worth, this week filed the latest complaint
against Keller with the judicial review commission. He said her actions in
the Richard case cast doubts on the impartiality of the Court of Criminal
Appeals.

"I urge you to take prompt and appropriate disciplinary action against
Judge Keller, which should include serious consideration of removal from
office," Burnam wrote.

(source: Houston Chronicle)

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

Judge's order to release death row inmate perplexes some in courthouse


While U.S. District Judge Walter S. Smith Jr. might not have intended for
an order Tuesday to be taken literally, it is clear that he doesn't want
convicted triple murderer Billie Wayne Coble to languish indefinitely on
death row before he is afforded a new sentencing trial.

Still, Smith's order granting Coble's writ of habeas corpus and ordering
that "Billie Wayne Coble be released unless the State of Texas provides
him with a new trial within 120 days" left officials at the McLennan
County Courthouse scratching their heads.

Coble, 58, has been on death row since his 1990 conviction in the August
1989 shooting deaths of his estranged wife's parents, Robert and Zelda
Vicha, and her brother, Waco police Sgt. Bobby Vicha, all of Axtell.

In a 28-page opinion issued Aug. 14, the 5th U.S. Circuit Court of Appeals
in New Orleans ruled that the special issues Coble's McLennan County jury
had to answer for the death penalty to be assessed were unconstitutional
as applied to him.

Jurors were asked to answer if Coble committed the murders deliberately
and whether he would constitute a future danger to society. The 5th
Circuit's ruling reflects changes made since then limiting the scope of
the death penalty and allowing a life sentence to be imposed if Texas
juries believe there is sufficient mitigating evidence to preclude the
imposition of the death penalty.

The court's ruling did not overturn Coble's convictions, only his death
sentence. That's why Smith's order to release Coble, who remains a
convicted murderer, if not retried within 120 days was puzzling to some.

"In habeas corpus, you ask to be released from some sort of restraint,"
said McLennan County District Attorney John Segrest. "The restraint can be
physical confinement. The restraint can be a circumstance or status, for
example, status as a convicted felon. Judge Smith, by not saying 'released
from custody,' he had to be referring to the question of the death
penalty, and ordered Coble to be released from that restraint of a death
sentence."

Judge Matt Johnson of Waco's 54th State District Court, where Coble was
convicted 17 years ago, began making preparations Tuesday for Coble to be
returned to McLennan County.

The judge ordered a "bench warrant" for Coble's transfer within the next 2
weeks, set a tentative trial date for Jan. 7 and asked his staff to round
up attorneys to appoint for Coble's defense.

At Coble's new trial, jurors will be instructed that he is guilty of
capital murder, leaving his punishment  life in prison or death  the only
issue to be decided.

Lauri Saathoff, a spokeswoman in the state attorney general's office,
declined comment on Judge Smith's order. The attorney general's office
represents the state when death penalty cases reach the federal level.

"That case is going back to McLennan County, and that ends the involvement
by our office," she said.

(source: Waco Tribune-Herald)

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

Jury considers fate of woman's killer----McKinney: Family testifies about
toll of real estate professional's death


The Collin County jury that last week convicted Kosoul Chanthakoummane of
capital murder for killing real estate professional Sarah Walker will
begin deliberating his fate today.

Mr. Chanthakoummane, 27, will be sentenced to either life in prison
without parole or death for fatally beating and stabbing Ms. Walker, 40,
then stealing her jewelry last year inside a McKinney model home where she
was working.

During the trial's final day of testimony Tuesday, Jackie Mull - Ms.
Walker's younger sister - became emotional as she talked about the day her
sister was killed in July 2006.

In the hushed courtroom, Mrs. Mull fought tears as relatives among the
observers wiped their own eyes and passed around tissues.

She testified that she was playing with her 3-month-old when the phone
rang.

It was McKinney police Capt. Randy Roland.

"I knew Sarah worked in McKinney. I asked him if Sarah was OK. He said
'No,' " Mrs. Mull said, her head hanging low, her long, dark hair
shielding her face.

"He told me that Sarah had been assaulted at work and she had died from
her injuries," she said sobbing.

Also Tuesday, Ms. Walker's former mother-in-law, Dawn Tate, testified
about caring for her grandson, Josh, the 5-year-old son of Ms. Walker and
Mrs. Tate's son, Randy.

Mrs. Tate said that since his mother's death, Josh has trouble sleeping,
grinds his teeth and is afraid to ride in a car with anyone but his father
and grandmother.

Sometimes, she said, the child's grief is overwhelming.

"We call them meltdowns, when he just falls to pieces," Mrs. Tate said.

"His mom signed her notes with hearts. Stacy [Mr. Tate's girlfriend] did
the same on a note. And he just went to pieces."

Meanwhile, defense attorneys Steve Miears and Keith Gore used the trial's
punishment phase to try to convince the jury that their client's life
should be spared.

They called as witnesses North Carolina prison guards, a juvenile
probation officer and a fellow inmate who worked with Mr. Chanthakoummane
on work release in North Carolina.

All said Mr. Chanthakoummane exhibited model behavior while incarcerated.

They said he spent time drawing pictures, including renditions of Mahatma
Gandhi, professional football player Terrell Owens, Clint Eastwood and
cars.

But in a hearing outside the jury's presence, Mrs. Mull said, "I don't
think all cases necessitate the death penalty, but I do agree that this
one does."

(source: Dallas Morning News)