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

[Rick Halperin]

March 1



TEXAS:

Push for death penalty in child sex cases slows down in Texas House


With renewed questions over the constitutionality and consequences of
allowing the death penalty in some child sex cases, the House on Wednesday
delayed a vote on a crackdown against sex offenders.

The bill, dubbed "Jessica's Law," seeks to add the death penalty for
repeat offenses against victims under 14 and adds other measures to
stiffen penalties for sex crimes.

With critics arguing the death penalty in child sex cases is likely
unconstitutional and could lead some offenders to murder their young
victims, the House put off the bill until Monday.

It was a significant change of course for legislation that seemed primed
to sail through the House and raises questions about its future, although
House Speaker Tom Craddick, a Midland Republican, said he thinks it will
pass. The Senate is considering a similar bill.

"We knew a lot of questions would be asked," Craddick said.

Supporters have called it a strong deterrent against sex crimes, but after
about 2 hours of debate, House Republicans joined a group of Democrats to
ask to slow it down.

"This is serious business," said Rep. John Smithee, an Amarillo Republican
who said he supports the bill but wanted to give lawmakers more time to
talk to local prosecutors and victim advocates. "This is human life we're
talking about. This bill will pass. (But) it raises serious questions."

The bill's sponsor, Rep. Debbie Riddle, R-Tomball, resisted the delay but
was voted down 131-10.

"This bill will pass out Monday," she said after the vote.

"Jessica's Laws" are named after Jessica Lunsford, a Florida girl who was
abducted and killed two years ago, allegedly by a convicted sex offender.

Gov. Rick Perry had deemed the bill one of the legislative session's
emergency issues, allowing lawmakers to act quickly. Lt. Gov. David
Dewhurst has made it one of his top issues in the Senate and the bill was
approved by a House committee.

But as Wednesday's debate wore on, more and more lawmakers raised
questions about wandering into such slippery constitutional ground.

The constitutional question is tied to a 1977 Supreme Court ruling that
reversed a death sentence for a Georgia man convicted of raping a woman.
The court called it an "excessive penalty for the rapist, who as such,
does not take human life."

Florida, Oklahoma, South Carolina, Montana and Louisiana have passed death
penalty laws for child sex crimes in recent years. Only Louisiana has a
child molester on death row and his case is still moving through the state
and federal appeals courts.

Victim advocates and prosecutors warn such laws can do more harm than good
if they lead perpetrators to kill victims who may be the only witness to
the crime.

"You provide powerful a powerful incentive to kill the victim," said Rep.
Mike Villareal, D-San Antonio.

Although Texas executes more inmates than any other in murder cases,
prosecutors have said the death penalty in sex cases would rarely be
pursued.

Riddle agreed, noting that her bill allow prosecutors to pursue life
without parole for repeat offenders. The death penalty would be used only
in exceptional cases, she said.

Our passion and concerns needs to be with the children who are the
victims," Riddle said.

"I want those who prey on our children to serve their full sentences. I
want those who do it repeatedly to be removed from our society either
through life in prison or their own execution," Riddle said.

The "Jessica's Laws" bills are SB 5 and HB 8.

(source: Associated Press)

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

Nichols Execution: Another Texas death row travesty


On the morning of Oct. 13, 1980, 19-year-old Joseph Nichols and
24-year-old Willie Ray Williams entered Joseph's Delicatessen in Houston
and approached the counter where 70-year-old Claude Shaffer was at the
register. Williams and Nichols each pulled out a gun and pointed it at
Shaffer, in an attempt to rob the store. According to court records,
Shaffer reached for a gun hidden behind the counter; as he ducked behind
the counter, Nichols fired  his single bullet lodged somewhere behind a
magazine rack, and he ran from the store. Williams also began to retreat
but stopped at the front door. He fired at Shaffer  who was now standing,
his back toward the door. The bullet killed Shaffer instantly; Williams
returned to the counter, grabbed the cash box, and ran.

Nichols and Williams were arrested, and each was charged with capital
murder. Three months later, in January 1981, after confessing to the
killing, Williams pled guilty and was sentenced to die; he was executed in
January 1995. Nichols pled not guilty: He'd been involved with the robbery
but did not intend for Shaffer to die, nor did he take part in the murder.
Nichols was tried twice for Shaffer's murder  a deadlocked jury prompted a
mistrial the first time around; the 2nd trial ended with a guilty verdict
and a death sentence.

He is scheduled for execution on March 7.

It might be tempting to assume that Nichols' 25-year stay on the row is an
affirmation that the Texas capital punishment system functions properly
that a quarter-century behind bars means the courts have had ample
opportunity to review his appeals and have concluded, based on all
relevant evidence, that his execution will pass constitutional muster. But
that isn't true: With less than a week until his execution, there remain
serious questions about whether Nichols' execution is legally justifiable.

Joseph NicholsHis is a case plagued by prosecutorial misconduct and
incomplete judicial review. Harris Co. officials withheld from Nichols'
attorneys the true identity and whereabouts of a crucial eyewitness,
Teresa Ishman, one of two deli employees working with Shaffer the morning
of the murder. According to court records, Ishman told prosecutors it was
Williams and not Nichols who killed Shaffer, and she confirmed that
Nichols fled before the murder. Moreover, at Nichols' second trial,
prosecutors completely changed the official theory of the crime in order
to secure a conviction and death sentence. At Nichols' first trial,
prosecutors argued that Williams fired the fatal shot  an assertion backed
up by the physical evidence and the testimony of the county medical
examiner  and sought to convict Nichols not as the shooter but as a party
to the killing. But the jury deadlocked because Nichols wasn't the
triggerman. So at the second trial, in February 1982, prosecutors argued
instead that Nichols was the one who fired the fatal shot  even though
Williams had already confessed to the killing and had been sentenced to
die.

State and federal courts have considered these omissions before, but only
in "isolation," says Nichols' attorney, Clifford Gunter, with the Houston
firm Bracewell & Giuliani. On Feb. 20, Gunter again appealed Nichols'
case, arguing that taken together, the problems with his prosecution are
so egregious that the death sentence should be overturned. "Nichols has
been inadvertently subjected to a procedural quagmire that has prevented
his unconstitutional conviction from being fully reviewed," Gunter argues.
"As a result, no court has ever addressed all of the constitutional
violations that led to Nichols' conviction for a crime he did not commit
a crime for which the confessed murderer  has already been executed." In
short, the court has never ruled whether the individual instances of
misconduct could have the cumulative effect of rendering his punishment
unconstitutional.

In Williams' case, Harris Co. prosecutors asserted that the evidence
conclusively proved him the killer: "That is all there is to it. It is
scientific. It is consistent. It is complete. It is final, and it is in
evidence," they argued  evidence they offered again during Nichols' first
trial. At Nichols' second trial, however, prosecutors abandoned all that
evidence and argued that Nichols was the shooter; this strategy was
possible only because the state continued to conceal eyewitness Ishman
from the defense, argues Gunter. Instead, prosecutors offered only the
testimony of another deli employee, Cindy Johnson, who claimed Nichols
fired the fatal shot. (According to Ishman, Gunter later discovered, there
was no way Johnson could've seen anything because she hid in the bathroom
once the robbery began.) By hiding Ishman, the prosecution was able to
convince jurors Nichols was the shooter: "And I'll tell you that it was
[Nichols'] hand that did the killing," declared the prosecutor. "How do
you know that? [Johnson] saw it. She told you."

A federal district judge first overturned Nichols' conviction based on the
state's changed theory of the crime (a due process violation), but the 5th
U.S. Circuit Court of Appeals reversed, ruling that the error wasn't
severe enough to "undermine confidence" in the guilty verdict. In a
subsequent proceeding, the court similarly ruled that hiding Ishman from
the defense was not so egregious as to undermine the verdict.

While Gunter hopes that the courts will now finally consider the errors'
cumulative effect and will throw out Nichols' death sentence, given the
complicated nature of the rules governing death-case appeals, it seems
unlikely. In fact, "the rules against successive petitions are so onerous"
that it is unlikely the courts will consider anything more than whether
the appeal was filed properly, says UT law professor Jordan Steiker. "By
successfully hiding their misconduct, the prosecution gets the benefit of
a process designed to 'streamline' appeals. It is one of the ways that
court doctrine rewards prosecutorial misconduct."

Gunter has also filed a petition with the Board of Pardons and Paroles,
asking that Nichols' death sentence be commuted to life behind bars
ordinarily, Steiker says, that would be the way to go with a case like
Nichols'. "If we had any sort of clemency process, this would be the
perfect kind of case," where the executive branch would step in to correct
an injustice the courts are ill-equipped to handle. But, he said, "That's
not Texas." For sure, the BPP isn't known for righting wrongs  still,
Nichols' life might depend on its taking seriously the responsibility to
avert an injustice. "To be frank, we are  accusing the State of having
deliberately manipulated the justice system  in order to get a second
death sentence," reads Gunter's petition. "Executing Nichols would in
effect condone" that manipulation, he continued. "When does it end? It
should end now."

(source: Austin Chronicle)

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

On death row, few women wait----Bad life became horrible with murder of
baby


As a child, she ran from bullies in a Kansas City housing project. As an
adult, she ran from the responsibilities of motherhood.

And with her panicked final flight from the horror of holding a little
baby's lifeless body, she ran herself onto death row in Texas.

It likely will be the last stop in her tumultuous journey.

Henderson is scheduled to drift into death sometime after 6 p.m. April 18
when an executioner unleashes the flow of poison into her slender arm.

She is to die for the 1994 murder of a 3-month-old boy she was
baby-sitting. She will be only the 12th woman put to death in the nation's
modern era of capital punishment.

The self-described "nobody" maintains that the crushing skull fracture
suffered by Brandon Baugh was the result of a terrible accident. Her story
has attracted a nationwide network of supporters that includes Sister
Helen Prejean of "Dead Man Walking" fame.

In the only media interview she has granted, Henderson told The Kansas
City Star that she hoped her life might yet be spared, but on Monday the
U.S. Supreme Court declined to hear Henderson's case.

But to the parents robbed of a lifetime of memories, Henderson's execution
will be well-deserved justice. The sad circumstances of her life are no
excuse for the violent circumstances of their little boy's death, Eryn and
Melissa Baugh said.

The Baughs found Henderson through a poster offering child-care services.

Henderson's home was immaculate, and her "bubbly" attitude impressed them.

For four months, things went fine. But when Melissa Baugh arrived at
Henderson's house to pick up her children on Jan. 21, 1994, nobody was
there.

Puzzlement slowly gave way to panic. Henderson's husband tried to reassure
the Baughs that she probably had just gone shopping with the children.

Later that night, the husband showed up at the Baughs' home with their
2-year-old daughter, whom Henderson had left with relatives. He had no
idea where Henderson or Brandon Baugh were.

The Baughs endured 11 agonizing days with no news.

After "America's Most Wanted" broadcast the story, a tip led the FBI to an
Independence, Mo., apartment, where agents arrested Henderson on Feb. 1.

In a written statement to the FBI, Henderson said she "panicked" and fled
after she dropped the baby and could not revive him.

After her arrest, Henderson refused to tell authorities where she buried
Brandon.

But she drew a map for her attorneys, who turned it over when ordered by a
Texas court. After investigators found Brandon's shallow grave,
authorities charged Henderson with capital murder.

Eryn Baugh said that when they were given their son's remains, they
learned how severely he had been injured.

"The back of his skull was crushed in," he said. "Picture an eggshell
shattered."

He never believed it was an accident and said Henderson gave too many
versions to be believed.

"Her stories don't wash."

Prosecutors told the Baughs it would be difficult to get a woman sentenced
to death, even in Texas. The Baughs insisted that they try.

At trial, doctors testified that Brandon's head injury could not have been
an accident. One said it was comparable to a fall of more than 2stories.
She was convicted and sentenced to death.

Facing death, Henderson said she felt "incredibly blessed" that she had
Prejean's love and support.

"She gives me a lot of strength, faith and hope."

Prejean has met with Henderson at the prison where she and nine other
women live on Texas's death row. Prejean, who thinks that Brandon's death
was an accident, helped find Henderson her current legal team and urged
hundreds of other nuns across the country to write Henderson.

People need to understand that Henderson is not a monster, said Prejean,
who has agreed to be Henderson's spiritual adviser and be with her if she
is executed.

"It's easy to kill a monster," Prejean said. "It's hard to kill a real
human being."

In her interview with The Star, Henderson said she wanted to tell the
Baughs that she was sorry and that she felt regret every day for the pain
she caused them.

"I wish there was something I could do to comfort them," she said, "and if
it's going to comfort them to end my life for an accident, I hope that
gives them comfort."

(source: Kansas City Star)

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

PA murderer denied appeal for life


One of Port Arthur's most notorious convicted murderers will stay on death
row after a court denied his appeals Wednesday.

Elroy Chester, 37, pleaded guilty and was sentenced to death in 1998 for
the fatal shooting of Port Arthur firefighter Willie Ryman. Ryman was
killed when he tried to stop Chester from raping his two nieces. Chester
also confessed to killing at least 4 other people during a 6-month crime
spree in the Pear Ridge area of Port Arthur.

But in 2002, the U.S. Supreme Court ruled that the mentally retarded could
not be executed, and Chester was one of Texas' death row inmates whose
mental capacity had not been determined at the time of the death sentence.

Wednesday the Texas Court of Criminal Appeals ruled that Chester is not
mentally retarded and still faces execution.

"We are very pleased with the result of the hearing and think it is
appropriate. Elroy Chester is one of the most dangerous individuals we
have ever prosecuted," Wayln Thompson, Jefferson County assistant district
attorney on the case said in a telephone interview Wednesday. "If he did
not qualify for the death penalty, then I don't know who does."

Thompson said that nothing in Chesters background tests indicated mental
retardation.

"By the findings presented in court, it was obvious by his adaptive
behavior that he was not mentally retarded. You have to look at more than
IQ scores, but at his behavior indicators. He functions normally and was
never diagnosed as mentally retarded, but only that he was learning
disabled, which is not the same thing at all," Thompson said.

One of Chester's IQ tests when he was a student in Port Arthur public
schools did show that he was mildly mentally retarded, but another test
also showed him with an IQ above 70, considered the threshold for
retardation. When he was 18 and in prison for 3 burglary convictions, a
Texas Department of Corrections test put his IQ at 69.

While finding evidence of "subaverage intellectual functioning
persuasive," the appeals court noted Chester did not show any deficits in
his adaptive behavior, which the judges acknowledged while "inherently
subjective (in) nature, is consistently the most problematic issue for
factfinders to resolve when dealing with these types of claims," according
to an Associated Press story on the hearing.

"The Supreme Court really never gave solid guidelines (on determining
mental retardation), and the court of Criminal Appeals has been struggling
with that," Thompson said.

The court specifically pointed to Chester's actions when he offered to
lead Port Arthur police to the gun used in his crimes. When police, acting
on his directions, couldn't find a gun he insisted was unloaded and hidden
in a hole in a ceiling, he took his handcuffed and shackled hands in an
opposite direction in the hole and attempted to pull out a gun officers
found was fully loaded.

Chester also confessed to killing John Henry Sepeda, 78, during a
burglary; Etta Mae Stallings, 87, in another burglary; Cheryl DeLeon, 40,
whom he stalked and fatally beat with his gun as she arrived home from
work; and Albert Bolden Jr., 35, who was his brother-in-law and was shot
in the head. According to court documents, Chester told police he killed
Bolden for beating his sister or for setting him up with a date with a
woman who turned out to be a transvestite.

Chester likely still has federal appeals he can pursue to try to keep him
from lethal injection. He does not have an execution date.

Thompson added that he believes Chester had very good legal representation
for the appeals hearing.

"An experienced firm from Alaska, Harvard educated, came down to represent
him on their own tab. They fought for what they believed in, and made sure
he had the best representation possible," Thompson said.

In 2 other similar cases the Austin-based appeals court on Wednesday said
condemned inmates Demetrius Lott Simms and Darrell Glenn Carr, convicted
in separate Houston slayings, are mentally retarded and may not be
executed. The decision upholds findings in each of their trial courts.
Their sentences now are reduced to life in prison.

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

Court says death row inmate is not mentally retarded


A convicted murderer condemned for fatally shooting a Port Arthur fireman
9 years ago lost an attempt to avoid execution when the Texas Court of
Criminal Appeals ruled Wednesday that he is not mentally retarded.P> Elroy
Chester, 37, confessed to the slayings of at least four other people
during a 6-month crime spree. He pleaded guilty to killing Wilie Ryman
III, who was trying to keep Chester from raping his two nieces at their
Port Arthur home. Ryman, who frequently checked on the girls when their
mother was at work, had interrupted Chester's burglary of the home and the
rapes.

A Jefferson County jury in 1998 took just 12 minutes to decide Chester
should be executed.

The U.S. Supreme Court in 2002 barred the execution of mentally retarded
people, and a federal judge that year ruled that the trial court never
determined whether Chester is retarded. A federal appeals court in 2003
refused to rule on Chester's appeal until all state appeals were
exhausted.

In 2 other cases, however, the state's highest criminal appeals court
Wednesday said condemned inmates Demetrius Lott Simms and Darrell Glenn
Carr, convicted in separate Houston slayings, are mentally retarded and
cannot be executed. The decision upholds findings in their trial courts.
Their sentences now are reduced to life in prison.

Carr, 37, was convicted of killing a 16-year-old pregnant girl, Priscilla
Rangel, during a convenience store robbery in Houston in 1991. She was a
customer in the store. At the time, Carr was on parole after serving less
than 5 years of a 15-year sentence for assault.

Simms, who turned 36 on Tuesday, was convicted of abducting a 3-year-old
Houston girl, Monique Miller, raping her and then beating her to death
with a tree branch. He was arrested 3 days later while trying to abduct
another child. The slaying occurred 3 days after Simms was paroled after
serving less than 2 years of a 6-year sentence for theft and indecency
with a child.

In Chester's case, his trial court, after an evidentiary hearing, ruled
that his mental retardation claims had not been proved. That finding was
appealed to the Court of Criminal Appeals. Chester's lawyers argued that
an improper standard was used to determine that Chester is not mentally
retarded.

Chester was on mandatory supervision, a form of probation, when he went on
the crime spree in which he killed 5 people, sexually assaulted two and
burglarized at least 5 homes. Court records show he also fired shots at at
least 5 other people.

(source: Associated Press)

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

DNA is focus of plea deal ---- Murder suspect may forgo future testing to
avoid death penalty


At a time when the careful preservation of DNA evidence is credited with
helping free a dozen Dallas County men from wrongful convictions,
prosecutors asked a capital murder suspect to agree to destroy DNA
evidence in his case as a condition of a plea bargain.

Under the agreement, the man would plead guilty to life without parole and
in exchange avoid a death penalty trial. As part of the deal, the
defendant either would agree to waive future DNA challenges or agree to
have the existing DNA evidence destroyed.

Officials with the district attorney's office say the deal is an
extraordinary and isolated case. District Attorney Craig Watkins said his
office's stance on this case does not affect his vocal position supporting
the ability of convicts to get DNA tests because the evidence against Paul
Emilien is so overwhelming.

Mr. Emilien is charged with the October 2005 robbery and slaying of
19-year-old Anthony Flanery, a clerk at a Lancaster 7-Eleven store.

"It has nothing to do with innocence. The guy's guilty," Mr. Watkins said.
"We have him on video, and we've already done a DNA test. If the victims
are willing to forgo the death penalty, we're going to do whatever we can
to keep this from hanging over their heads in the future."

DNA tests that have already been conducted and other evidence link the man
to the slaying, and Assistant District Attorney Eric Mountin said
prosecutors are only trying to prevent a frivolous appeal years from now.

"As far as I'm concerned, I'm very comfortable and confident that the
position I'm taking is not only justified but is the right thing to do,"
Mr. Mountin said. "I don't think it's an illegitimate use of a waiver
under these circumstances."

Mr. Emilien's fingerprints were recovered on the store's cash register,
and the store's surveillance camera captured his image during the robbery.
The video shows a person firing at Mr. Flanery as he opens the cash
register. Mr. Emilien and 2 co-defendants also gave statements to police
about the robbery. And DNA evidence links Mr. Emilien to the scene.

Mr. Mountin said the district attorney's office is trying to be respectful
of the wishes of Mr. Flanery's family, who have agreed to avoid a death
penalty trial if Mr. Emilien is sentenced to life in prison without the
possibility of parole.

Mr. Emilien's attorneys have seen all the evidence against their client,
and that's why they approached prosecutors with the plea deal, Mr. Mountin
said.

"There's no secrets," he said. "It's not like I'm keeping something back
from the defense. That's why the defense wants to plead, because there is
so much evidence."

Ed King, one of Mr. Emilien's three attorneys, said DNA evidence in his
client's case does not play the same kind of role as DNA evidence in a
sexual assault case, where the identification of someone else's DNA can
prove that someone else committed the crime.

In Mr. Emilien's case, dried blood found on Mr. Emilien's clothing has
been linked to the victim.

"It's not giving up anything," Mr. King said.

The possibility that the plea deal might require that DNA evidence be
destroyed became a hot topic among the legal community after a Dallas
County prosecutor asked for advice on how to structure such a deal on an
Internet user group for Texas prosecutors.

State law allows such plea deal agreements, although it is ultimately up
to the judge presiding over the case whether to accept the terms of the
deal, said University of Texas law professor George Dix.

If the deal is accepted, Mr. Emilien would be the first person in Dallas
County to be sentenced to life without parole.

Since 2001, 12 Dallas County men have had their felony convictions
overturned after obtaining DNA tests that were not available at the time
of their convictions. The law that allows for post-conviction testing
hinges on authorities being able to find DNA evidence from the old cases.

The majority of the recent exonerations involved convictions from the
1980s in which DNA testing was either not available or the testing
procedures were not as accurate as they are today.

Robert Kepple, executive director of the Texas District and County
Attorneys Association, said prosecutors today make sure DNA testing is
made available to defendants. Dallas County has had more DNA exonerations
than any other jurisdiction in the United States, and Mr. Kepple said
prosecutors are "painfully aware of what's going on and the [aspersions]
cast upon their office as a result."

"Today is much different than 10 to 15 years ago," he said.

(source: Dallas Morning News)