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

[Rick Halperin]

July 19



TEXAS:

Anthony Graves Update: Defense team shot down again


When it comes to the retrial of death row inmate Anthony Graves, Burleson
Co. District Judge Reva Towslee-Corbett apparently doesn't feel the need
to comply with the 5th U.S. Circuit Court of Appeals or, for that matter,
with the opinion of the U.S. Supreme Court. Perhaps Justice Antonin Scalia
simply isn't conservative enough for the Texas judge. Or maybe
Towslee-Corbett is  dare we say it?  completely biased against Graves.
Considering the latest ruling she's made in Graves' case, it would seem
that one or the other  if not both  must be true.

On July 12, Towslee-Corbett denied a motion by Graves' defense team,
ruling that special prosecutor Patrick Batchelor may use the recanted  and
likely perjured  testimony of Robert Carter, who fingered Graves as his
accomplice in the 1992 multiple murder of Bobbie Joyce Davis, her
daughter, and four grandchildren in Somerville. Carter, who was convicted
of the crime, later recanted, saying Graves was not involved in the grisly
murders  a recantation he repeatedly reiterated, including in his final
statement before being executed in 2000.

"Anthony Graves had nothing to do with it," said Carter from the Texas
death chamber. "I lied on him in court."

And although the veracity of Carter's trial testimony, implicating Graves
in the crime, was at the heart of the 5th Circuit's decision to overturn
Graves' conviction and death sentence last year, Towslee-Corbett last week
ruled  without any explanation  that she will allow the state to use a
transcript of the dead man's questionable testimony as evidence in Graves'
upcoming retrial. (Although originally scheduled to begin Aug. 10, Graves'
new trial has been postponed until sometime this fall.)

Towslee-Corbett's decision stunned Graves' defense team  the ruling is
"just clearly erroneous, and we don't know how she reached this decision,"
says David Mullin, 1 of 3 attorneys working to finally exonerate Graves.
Mullin is flummoxed: He doesn't understand how the 5th Circuit could rule
that Carter had "given perjured testimony, and then [Towslee-Corbett]
says, 'Oh, yes, we'll let that [testimony] back in,'" Mullin muses.

In overturning Graves' conviction, the federal appeals court found, in
part, that the night before Carter testified against Graves, Carter told
prosecutors he'd acted alone and that Graves was innocent. The state
failed to provide that information to Graves' defense and instead
threatened to prosecute Carter's wife as a party to the murders. Allowing
the transcript of Carter's questionable testimony to be used in Graves'
retrial is akin to declaring the 5th Circuit's decision was wrong, Mullin
said.

Additionally, Towslee-Corbett's bizarre decision directly contradicts the
U.S. Supreme Court's 2004 ruling (in a case styled Crawford v.
Washington), written by conservative Justice Scalia, reaffirming that the
direct confrontation of witnesses is the only way to satisfy the Sixth
Amendment. Scalia's opinion in that case tossed out a patchwork of
exceptions that allowed prosecutors to legally introduce as evidence at
trial the testimony of witnesses that, for one reason or another, are not
available to testify  like, say, when the "witness" is dead, as is the
case with Carter  thus allowing their "testimony" to remain unchallenged
by the defense. (The Supremes' Crawford decision was also the basis for
the appellate courts' overturning the convictions of Robert Springsteen
and Michael Scott, who were charged with murder in connection with
Austin's infamous 1991 yogurt-shop slayings.) "I don't know" what
Towslee-Corbett was thinking, Mullin says, and "there is no decent
explanation for what she did."

At press time, a change-of-venue motion filed by Graves' attorneys was
still pending  given Towslee-Corbett's rulings to date (including the
imposition of a gag order that was more like a death grip stranglehold on
Graves and his defenders and which was ultimately tossed out by the Waco
appeals court), it seems unlikely she'll grant the request.

Graves' case is scheduled for a pretrial hearing on July 31 in Caldwell
Co.

(source: Austin Chronicle)

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

Viewpoint: Stop Kenneth Foster's execution


When they said the truth would set you free, that didn't mean these doors
would pop open and you'd walk out. You better start to recognize this
thing called the soul. Although to me this is just a small part of this
reality. Believe me; I've got more. Start to look through the fabrications
and distorted truths. Truth is like light; you must be accustomed to it
gradually. Otherwise, it dazzles you. There are no new truths in what I
speak, only truths that have not yet been recognized.

On Monday, Georgia's Board of Pardons and Paroles granted an execution
reprieve for 38-year-old Troy Davis about 24 hours before the state was
set to kill him. Davis, who's been on death row in Georgia for 17 years,
was convicted of shooting and killing an off-duty police officer in 1989,
but has maintained his innocence throughout the appeals process. Davis
pointed to the fact that 7 of the prosecution's 9 witnesses recanted their
testimony after the trial, even saying they were pressured by police to
testify against him. No physical evidence linked Davis to the crime, and
the murder weapon was never found.

Since the nighttime murder happened so quickly, and the eyewitness
testimony was so untrustworthy, the real story of Officer Mark MacPhail's
death may never come to light.

But in the case of Austin-born Kenneth Foster, a death row inmate much
closer to home, the state of Texas did not need to find a murder weapon,
or a motive, to sentence him to death. All it needed was the Law of
Parties.

Foster's Case

On August 15, 1996, Foster, then a 19-year-old starting his own record
label, spent an afternoon driving 3 friends around a San Antonio
neighborhood. One of them, Mauriceo Brown, had a gun, and he and another
passenger exited the car and robbed two people at gunpoint, despite
Foster's misgivings. That night, thinking Foster had been following her, a
woman flagged his car down. The men talked to her, and then she walked
toward her boyfriend, Michael LaHood Jr. Brown exited the car and got into
an argument with LaHood. He then shot and killed LaHood in self-defense,
he said.

Eighty feet away, Foster heard the gunshot and began to drive away, but
his other friends convinced him to wait for Brown, according to
testimonies. Brown then re-entered Foster's car, and they left the scene,
only to be apprehended later that night.

Foster was tried alongside Brown for the murder of LaHood, thanks to the
Law of Parties. He was sentenced to death in 1997, and his execution date
is set for Aug. 30, a mere 6 weeks away.

The Law of Parties

Texas adopted the Law of Parties in 1974, which states, in part, that:

"A person is criminally responsible for an offense committed by the
conduct of another if, in the attempt to carry out a conspiracy to commit
one felony, another felony is committed by one of the conspirators; [then]
all conspirators are guilty of the felony actually committed, though
having no intent to commit it, [or] if the offense was committed in
furtherance of the unlawful purpose and was one that should have been
anticipated as a result of the carrying out of the conspiracy."

Prosecutors argued that Foster, because of his complicity in the previous
robberies, conspired to rob LaHood and was thus responsible for his
murder. However, according to the testimonies of all four men, Foster had
no idea that the shooter, Brown, grabbed the gun from beside the front
passenger seat when he exited the car. Moreover, none of the men agreed to
rob LaHood at all. The Law of Parties was thus misapplied to Foster.
Because Brown and Foster were tried together, the jury was only instructed
to determine if Foster was associated with Brown and if he should have
anticipated Brown's actions.

In 2005, U.S. District Judge Royal Fergeson announced that the
misapplication of the Law of Parties violated Foster's Eighth and 14th
Amendment rights and overturned his death sentence. However, a federal
circuit court overruled that decision, so aside from his final writ of
habeas corpus, Foster's appeals have run out. Unless his execution is
halted yet again, Kenneth Foster will die because he "should have
anticipated" that Mauriceo Brown would surreptitiously grab a gun, argue
with a stranger, shoot that person and re-enter the vehicle.

The Antiterrorism and Effective Death Penalty Act of 1996

Following the Oklahoma City bombing, the Antiterrorism and Effective Death
Penalty Act was signed into law by a president running for re-election,
and it severely cut down on the ability of death row inmates to appeal
their sentences to federal courts. The act reduced the statute of
limitations for convicts to file federal writs of habeas corpus to 6
months after their state appeals ran out, effectively sealing off the
possibility of extensive investigation or inquiry into misconduct by
lawyers and law enforcement. The AEDPA also weakens the ability for
federal courts to hear state cases: For instance, a district court must
issue a "certificate of appealability" for a federal judge to hear the
case. In essence, the state judges have to assert their colleagues'
ineptitude to assure a federal appeal for a prisoner.

Additionally, the law defers to state courts in determining the factual
bases of appeals and prohibits the defense from introducing new evidence
that wasn't presented in the original trial, unless it wasn't reasonably
discoverable earlier or was somehow suppressed. Foster's court-appointed
lawyer never told the jury that Foster attempted to drive away after
hearing the gunshot, but it could not be inserted into Foster's subsequent
appeals.

The AEDPA was envisioned as a way to eliminate "groundless," "meritless"
and "hopeless" appeals to federal courts. The coarse, context-lacking
language in the law notwithstanding, the act has amplified the courts'
ability to tie their own hands, cover their eyes and streamline the denial
of justice to many who have legitimate grievances against the criminal
justice system. Because the AEDPA leaves more decisions up to states,
results for prisoners are uneven and haphazard, depending on the judicial
temperament of their home state, district or presiding judge.

A system problem

Most importantly, the difficulty of presenting new evidence in appeals
highlights the economic disparity in death penalty defense.
Court-appointed defense lawyers are often overworked and underpaid - and a
number of them are under-qualified and overmatched in the courtroom,
especially against district attorneys armed with the full force of the
state behind them. Almost all death penalty defendants cannot afford their
own representation, and this is no accident: Prosecutors will recommend
the death penalty for defendants whose attorneys are ill-equipped to fight
it. For working people like Foster, the deck is stacked against them even
before the bailiff proclaims, "All rise."

Appeals lawyers are often no better - Texas only gives public defenders
$25,000 to investigate and write habeas corpus writs. At $100 an hour, a
low pay rate for most lawyers, this amounts to about six weeks of
full-time work on each case. A 2005 Austin American-Statesman
investigation reported that many appeals lawyers provide "incomplete,
incomprehensible or improperly argued" work, and only after this
investigation did the Texas Court of Criminal Appeals agree to set minimum
standards of professionalism for negligent habeas corpus lawyers.

This does not discount the hard work of many court-appointed defenders,
however. Many who care deeply about upholding justice for all work beyond
the $25,000 stipend, hire investigators out of their own pockets and
provide zealous defenses for their clients. It is not as if these women
and men are few and far between, it is that institutional barriers block
public defenders from providing this service on a universal basis.

Foster's DRIVE

Foster is more than just a factually innocent man on death row. A
sociology major at San Antonio's St. Philip's College in 1995, Foster
continues to study subjects such as sociology, theology and philosophy
while in confinement. His poetry is can be read on the Internet, and a
book of his poems, titled "Tribulation's Eyes," is available in German,
Italian and French on the overseas underground market. He's also a
brother, a husband, and a father to a little girl named Nydesha.

Foster is an activist within prison walls. In 2005, he and four other
inmates formed the Death Row Inner-Communalist Vanguard Engagement
(DRIVE), a group that performs nonviolent protests against the Polunsky
Unit's living conditions. Inmates occupy recreational rooms to protest
everything from force-feeding to a lack of proper medical care. When they
resist, they are stripped naked, tear-gassed and beaten into submission.
Each beating, by law, is videotaped, and copies are available to the
public by request through the Texas Department of Criminal Justice.

DRIVE also indicts the entire criminal justice system, highlighting the
class and race disparities in prison populations and the institutional
roadblocks to adequate legal representation. Foster protests not only
because he is not a murderer, but because he wishes to fundamentally
change the inhumane conditions experienced by every inmate pushed through
the system.

Kenneth Foster does not deserve to die for his nonexistent role in the
shooting death of Michael LaHood Jr. He held no weapon and plotted no
conspiracy. Even the sweeping language of the Law of Parties was
misapplied in Foster's case. He deserves a new trial, one that brings to
light his grievances against the Law of Parties as well as the criminal
justice system in general. If anything, he was a reluctant accessory to
two armed robberies. But the time to argue the wisdom of driving around
friends while they commit robberies is during Foster's new trial. The time
to save his life is now.

For more information about Kenneth Foster, visit www.freekenneth.com. For
more information about the DRIVE movement, visit http://drivemovement.org

(source: The Daily Texan)

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

Former Jailer Pleads Guilty To Fatal Attack


A former Travis County corrections officer pleaded guilty Wednesday to a
deadly dumbbell beating.

Police said Julius Lee Conley showed up to his old house in Round Rock in
February to find his estranged wife and her friend were inside, packing up
her belongings.

Investigators said Conley beat them both with a 10-pound dumbbell, killing
Quincy Johnson and leaving Dana Conley, who is pregnant, in a coma.

Julius pleaded guilty to murder and aggravated assault at the Williamson
County Justice Center.

He also waived his right to a trial and faces 2 back-to-back life
sentences for the attack, which prosecutors said was one of the worst
cases of family violence they'd seen.

Investigators said Dana was struck numerous times in the head.

Just the day before, she went to investigators to report a history of
spousal abuse and was on the phone with one of the investigators during
the attack.

Julius then chased Johnson into the garage and struck him in the head with
the same dumbbell.

"You took my son, our brother," said Jaquelyn Brown, Johnson's mother. "We
want you to know your selfish acts of violence have turned our lives
upside down."

Julius gave verbal and written confessions to investigators that February
night, but in court Wednesday he wiped tears from his face.

"Our daughter may not survive this beating, consequently Jamal and Javon
will grow up without her," said Darrell Foster, Dana's stepfather.

Williamson County District Attorney John Bradley said he believes Dana
would be with her 2- and 10-year-old sons if she had reported the abuse
earlier.

"We've got to stop thinking that secrecy is a way to control family
violence," Bradley said.

If Dana dies, Julius could be charged with capital murder and face the
death penalty.

(source: KXAN News)