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

[Rick Halperin]

Sept. 17



TEXAS:

Hair Could Determine If Texas Man Wrongly Executed


A Texas state judge issued a temporary restraining order last week to
prevent the state from destroying evidence that could show whether a man
was wrongfully executed in 2000. On Friday, attorneys filed motions
seeking DNA testing on critical evidence in the case and also seeking an
immediate order to stop the state from destroying the evidence while the
court considers the request for DNA testing. The order, issued by District
Court Judge Elizabeth E. Coker in San Jacinto County, granted the
immediate request to block destruction of the evidence and set a hearing
for Oct. 3 on whether to conduct DNA testing in the case.

The Texas Observer, the Innocence Project, the Innocence Project of Texas
and the Texas Innocence Network filed motions in state court in San
Jacinto County, Texas, seeking DNA testing on the only piece of physical
evidence in the case  a hair from the crime scene  that could determine
whether the hair matches Claude Jones, who was convicted of murder in 1990
and executed on Dec. 7, 2000. The hair, which was found on the counter in
a liquor store where a man was shot and killed, was central in Jones'
trial and post-conviction appeals. An expert for the state testified at
the trial that the hair was consistent with Jones'. The Texas Court of
Criminal Appeals, the states highest criminal court, narrowly upheld
Jones' conviction, in a 3-2 ruling where the majority specifically cited
the hair evidence as the necessary "corroboration" to uphold the
conviction.

The groups, represented by attorneys at Mayer Brown LLP, filed the court
motions Friday after the San Jacinto District Attorney refused to agree to
DNA testing  and also refused to agree not to destroy the evidence while
courts consider whether DNA testing can be conducted.

"The judge recognized that this case raises very serious issues about the
integrity of the criminal justice system. We're grateful that the state
will not be able to destroy this evidence before DNA testing can be
conducted," said Nina Morrison, staff attorney at the Innocence Project.
"We are hopeful that the judge will also see that it's in everyone's
interests to conduct DNA testing that could resolve serious, lingering
questions about this case. DNA testing could show that Claude Jones was
guilty, or it could show that the state had no basis for executing him.
The public has a right to know whether Claude Jones committed the crime
for which he was executed, and the ruling moves us one important step
closer to learning the truth."

In the days prior to Jones' execution, his attorneys appealed to courts
and to then-Governor George Bush's office for a stay of execution so that
DNA testing on the hair could be conducted. Documents later obtained by
the Innocence Project through Open Records Act requests show that Governor
Bush's staff did not include the possibility of DNA testing in the
material they prepared for him about the request for a stay of execution,
which was denied. (The request for a stay of execution was being handled
by Bush's office during the period of the Florida vote recount after the
2000 presidential election.) Several months earlier, Governor Bush granted
another death row inmate's clemency request so that DNA testing could be
conducted; at the time, Bush said, "Any time DNA can be used in its
context and can be relevant as to the guilt or innocence of a person on
death row, we need to use it." Several weeks later, DNA results showed
that the man, Ricky McGinn, was guilty and he was executed. Other than the
hair, the primary evidence against Jones was testimony from Timothy
Jordan, who said that Jones told him he committed the murder. Jordan and
Kerry Dixon were initially arrested for the November 1989 liquor store
robbery and murder in San Jacinto County. Jones was later arrested, and he
and Dixon were charged in the crime. In an affidavit in 2004, Jordan
stated that everything he reported at trial about the robbery and killing
he learned from Dixon, not from Jones. Jordan's affidavit also states that
he testified against Jones in an attempt to receive a reduced sentence in
this case and an unrelated robbery.

According to the Innocence Project, mitochondrial DNA testing on the hair
evidence could establish any of the following:

(1)Jones was guilty;

(2)the hair comes from the charged accomplice Dixon, which would strongly
support a claim Jones was innocent (since Dixon denied being present in
the store); or

(3) the hair came from the victim or some other individual, which, by
excluding Jones and contradicting the critical evidence against him at
trial and relied on by the appeals courts, would mean there was not
legally sufficient evidence to convict Jones, much less execute him.

On Aug. 31, 2007, attorneys at Mayer Brown LLP sent Open Records Act
requests to San Jacinto County District Attorney Bill Burnett and District
Court Clerk Rebecca Capers, asking for access to the hair evidence to
perform DNA testing. Burnett denied the request earlier this week, 2 days
after telling attorneys that he didnt think DNA testing on the hair is
scientifically possible (since the hair does not have a follicle) and that
Jones confessed to the crime in his final statement in the execution
chamber.

"None of the reasons the District Attorney has given for denying our
request are valid," said Morrison. "Mitochondrial DNA testing on this hair
is definitely possible, and similar testing has exonerated several people
who were wrongfully convicted in other cases. We don't know what the
testing will show, but mitochondrial DNA testing can and should be
conducted on this evidence. The record from both the trial and the appeals
clearly show that the hair, which is the only physical evidence against
Jones, was key to securing and upholding his conviction. Eyewitness
testimony in this case was shaky at best and did not identify Jones, and
Jones did not confess to this crime in the execution chamber. He told the
victims family that he hoped they would find closure and that he was sorry
for their loss."

"The bottom line is that Claude Jones was convicted based on the hair
evidence and testimony from Timothy Jordan. Jordan has already said, in a
sworn affidavit, that his testimony was false, and DNA testing on the hair
could definitely show whether or not Claude Jones was guilty," Morrison
said.

Texas leads the nation in the number of innocent people who were
exonerated through DNA testing after being wrongfully convicted. Across
the state, 29 people have been exonerated with DNA since 1994. They served
a total of 354 years in prison. Nationwide, 207 people have been
exonerated through DNA testing, 15 of whom were sentenced to die,
according to the Innocence Project, which is affiliated with Cardozo
School of Law.

(source: North County Times)

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

Family: Cross-country slay suspect `not in his right mind'


A man wanted in the deaths of 6 people in Texas and Pennsylvania had
suffered a rattlesnake bite days before the cross-country killing spree
and had psychological problems, his family said Monday.

"We feel it's a psychological stupor he was in," an uncle, Ed Nelson, said
outside court before a Long Island judge ordered the extradition of Paul
Devoe III to Texas.

Nelson said he felt a combination of the snake bite, medication and
alcohol caused the stupor.

Devoe's mother, Diana O'Connell, said her son called her saying, "Mom, I'm
in trouble. I'm on the run."

"He was not in a right mind," said O'Connell, adding that Devoe also
called his sister and told her, "I'm in trouble."

"My brother is not an animal," said a brother, Steven Devoe. "He's
mentally disturbed in the head. I wish the people in Texas would take this
into consideration: Spare his life. Don't kill the man."

Before Suffolk County Judge C. Randall Hinrichs issued his order, both New
York Gov. Eliot Spitzer and his counterpart in Texas, Rick Perry, had
signed extradition warrants to send Devoe back to Texas to face murder
charges.

Devoe "understood. He had time to think this over," his lawyer, Ed Vitali,
said of the extradition.

Devoe, 44, is wanted in the killings of an ex-girlfriend, 46-year-old
Paula Griffith; her 15-year-old daughter, Haylie Marie Faulkner;
17-year-old Danielle Hensley; and Griffith's boyfriend, 48-year-old Jay
Feltner, at a home near Austin on Aug. 26. Preliminary autopsy reports
found all 4 were killed by gunshots to the head.

He also is a suspect in the death of Marble Falls, Texas, bartender
Michael Jay Allred, 41, two days earlier.

Pennsylvania authorities have charged Devoe with killing Betty Jane
Dehart, 81, at her rural home in Greencastle. He allegedly confessed to
authorities that he shot Dehart and stole her car to continue his trip
from Texas to Long Island, where he was arrested on Aug. 27 at a friend's
home in Shirley.

Before his arrest, Devoe called his mother in New York using a cell phone
that belonged to Feltner and told her he had killed five people, the
arrest warrant affidavit said.

Spota has described Devoe as "a felon with a long history of arrests" in
Suffolk County including aggravated harassment, criminal trespassing,
petit larceny and drunken driving.

(source: Associated Press)

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

A family menace to a man accused of mass murder----Family recounts Paul
Devoe's life; uncle thinks they were next.


Paul Devoe's uncle thinks the murder suspect traveled from the Hill
Country to his native New York three weeks ago to continue a murderous
spree that left 6 dead in Texas and Pennsylvania. Authorities say they
don't know why Devoe traveled to Long Island, but Tommy O'Connell notes
that when his nephew was arrested Aug. 27 at a former co-worker's house in
Shirley, N.Y., he had a gun, ammunition and a history of violent
confrontations with his family.

"He came up here to do damage," said O'Connell, 50. "He was up here 2
months ago at my house, and we had a (blowup), and I told him to go back
to Texas ,because every time he comes to New York, he causes problems with
the family."

As Devoe, 44, is jailed in Long Island and is expected to appear today
before a judge who will rule on his extradition back to Travis County, his
family says they are grieving for the loved ones of the six people killed
and trying to figure out how one of their own went from being the family
menace to a slaying spree suspect.

O'Connell and Devoe's sister, Elizabeth Petrie, recounted that Devoe had
regularly acted angrily and violently since grade school, began to drink
alcohol heavily when he was a teenager and scared his family for years
with his erratic behavior.

"We never really knew Paul," said Petrie, 39, who lives with Devoe's
mother and brother on Long Island. "It's the hardest thing when you are
trying to know somebody and ... what they are going to do.

"You never knew if he was going to be a loving person or a scary person."

'He just went off'

Devoe grew up in the working-class suburb of Patchogue, N.Y., in a home
broken twice by divorce, his uncle said. His mother was 18 when he was
born, and O'Connell said that after a few years, she split up with Devoe's
father, who left town and never came back.

Soon, another man, Petrie's father, moved in with Devoe's mother and his
younger brother, Steven.

O'Connell remembers that Devoe's mother, Diana, who is O'Connell's sister,
used to go out with her neighbors to play bingo 3 or 4 nights a week.
Resenting her lack of attention, her second husband divorced her,
O'Connell said.

"Now, my sister was alone with Pauly as the oldest one at the age of 13,
more or less head of household," O'Connell said. "He just went off."

Petrie remembers when Devoe was young, he put his brother's head through a
wall. Steven Devoe is 2 years younger than his brother.

"I don't know if they were horsing around or what," she said.

Another time - Petrie believes it was when Devoe was in junior high school
- he was suspended for throwing either a desk or a chair at a pregnant
teacher, she said.

His sister and uncle said Devoe attended Patchogue Medford High School for
about a year before dropping out. He was in his teens when he started
drinking heavily, they said, a vice he would never ditch.

Devoe's mother, who did not work and supported her family through Social
Security disability insurance, couldn't control him, O'Connell said. "He
would go out late at night; he would not come home for 2 days."

Devoe was first arrested in his late teens, his sister said. He was
arrested for petty things, she said, like indecent exposure for running
around in a towel one Halloween, and more serious ones, like assault.

When his grandfather stepped in and tried to set Devoe straight when Devoe
was in his 20s, O'Connell said, they had a physical confrontation.

"He put hands on my father," O'Connell said. "My father was getting up
there in age, and he put hands on my father."

Later, O'Connell had his own confrontation with Devoe. In 1990, O'Connell
said, Devoe had begun to make a move on the daughter of his landlord, and
knowing that his nephew had a history of mistreating women, O'Connell
warned Devoe to stay away.

They argued one night when Devoe had been drinking, and then wrestled,
O'Connell said. During the skirmish, O'Connell said, he swept his leg
behind his nephew's, took him to the ground and broke Devoe's leg.

O'Connell was arrested, but charges were dropped, he said, after "his
grandpa told him, 'You don't press charges against the family.' "

Pattern of crime, abuse, jail

By the 1990s, Devoe had been working fairly steadily as a house painter,
said Bernard Valentin, his boss for 15 years. Devoe was a skilled painter
who worked hard, Valentin said, but burned through his paycheck on
weekends while drinking heavily.

He'd get into fights and woo women, said Valentin, the godfather to one of
Devoe's children.

Devoe has 4 children, Valentin said, including three with a woman who says
she was with Devoe off and on from the 1980s until 2001. That woman, who
didn't want to be identified, has said Devoe physically abused her,
usually after drinking heavily.

It was a pattern he repeated with women most of his life, on Long Island
and then after moving to Texas in 2005, according to several of the women
and investigators.

Devoe was in and out of jail and prison since his teens with convictions
including endangering the welfare of a child and driving while
intoxicated.

"My mom has known that there was something wrong with him, because you
teach your children right from wrong," Petrie said. "And Paul, no matter
how many times in and out of jail, just never knew that concept of right
and wrong."

Petrie suspects that her brother's problems may be rooted in some sort of
mental illness. She said that when he was in his 20s, Devoe checked
himself into a Long Island psychiatric facility and stayed for a few days.
She doesn't know the results of his evaluation there.

O'Connell said that Petrie, Devoe's mother and his brother have always
lived together and that Petrie butted heads with Devoe often in trying to
keep some order in the family. Now that he is in such serious trouble,
Petrie says she is searching for any reason why he could be so out of
control. She wonders whether the criminal justice system could have done
more to treat him.

"There were times when I had him living with me and as much as he tried to
hold back his anger and he tried to do the right thing, he always fell
into that bottomless pit again," she said, describing Devoe's
unpredictable nature.

"It was more than we could handle as a family. ... Paul needed much more
help than we could give him."

Told to avoid family

Devoe returned to Long Island in July, telling his family that he was
there to do a painting job. He told Valentin he was there for his son's
wedding. With him was a woman named Glenda, his family said. It was
presumably Glenda Purcell, an ex-girlfriend whom Devoe is accused of
trying to shoot in a bar in Marble Falls weeks later.

Petrie said she argued with Devoe on the telephone and never saw him.
O'Connell said he saw Devoe one night at his house. Devoe was drunk and
began to tell what O'Connell saw as tall tales about his life in Texas.

"He had 50 head of cattle," O'Connell recalls his nephew saying.

Devoe was obnoxious during the visit, bragging about his life in Texas and
agitating O'Connell, he said. Soon, O'Connell told him to leave and never
to come back.

'The kid got out of control'

Authorities say that on Aug. 24, Devoe began a killing spree when he
walked into a Marble Falls bar and pointed a gun at Purcell, his
ex-girlfriend. When he pulled the trigger, it didn't fire, witnesses said.
Bartender Michael Allred, 41, stepped in, and Devoe pulled the trigger
again, killing Allred, police said.

Travis County sheriff's investigators said Devoe left the bar and headed
to the Jonestown house of another ex-girlfriend, Paula Marie Griffith.

There, investigators say, he killed Griffith; her 15-year-old daughter,
Haylie Marie Faulkner; 17-year-old Danielle Hensley, a friend of
Faulkner's; and Jay Feltner, 48, who was described by police as Griffith's
boyfriend.

He got in Griffith's car and headed northeast toward Greencastle, Pa.,
where he killed Betty Jane DeHart, 81, authorities said. A Pennsylvania
criminal complaint said Devoe told authorities that Griffith's car began
having trouble, and he spotted DeHart at her house off Interstate 81 and a
car in the driveway. He drove that car to Shirley, where he was arrested
Aug. 27.

Devoe is represented by a lawyer from Legal Aid, which has a policy of not
commenting on pending cases.

While heading to New York, Devoe called his sister and mother. Petrie
wouldn't disclose the nature of those conversations. O'Connell said Petrie
felt threatened by Devoe. Neither Diana O'Connell nor Petrie saw Devoe
when he got to New York, they said.

"He came up here for a reason," O'Connell said. "After he did what he did
in Pennsylvania, he could have dumped the gun. ... The kid got out of
control. What he did was inexcusable.

"We are hurting up here for the families that he hurt."

(source: Austin American-Statesman)

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

Behavior of judges is not always judicious


Just because they wear black robes doesnt mean their temperament is always
judicial. A Houston bankruptcy judge last August ordered a lawyer to the
back of the courtroom to write out 50 times that he would not be
disrespectful.

A Harris County district judge during the 1980s demanded lawyers call each
other "doctor." Another local judge cleaned guns on the bench while
overseeing jury selection in a murder case.

Sometimes the behavior rises to the level at which the Texas State
Commission on Judicial Conduct intervenes, as it did in the latter two
cases, but mostly its all in a days work for litigators.

Steven Lubet, a professor of law at Northwestern University, says most
judges work hard to treat people right, but some "revel in their power,
and that can be exploitive." And lawyers pretty much have to take it, to
protect their clients. "For the lawyers, it's a matter of thank you sir,
may I have another,'" Lubet said.

One example of peculiar judicial behavior comes from the federal
bankruptcy judge who last August made a lawyer sit in the back of the
courtroom and write "I will not disrespect the court" on a pad 50 times.

It's unclear from the transcript whether U.S. bankruptcy Judge Jeff Bohm
was mad at Sterling Minor because the lawyer left court for 20 minutes to
attend to his parking meter and missed a hearing, or because Minor seem
miffed that another lawyer in the case didn't cover for him.

Minor's hearing was scheduled at 9 a.m. along with several other matters,
and he'd miscalculated how long it might take for his case to be called.

Minor, who is still ribbed about it a year later, recalls that he and the
judge raised their voices at this point in the transcript:

Bohm: Now if you come in here expecting to be called at 9 o'clock sharp,
then I'm going to ask you what Twilight Zone you're living in.

Minor: Well, Your Honor, I do not expect to be

Bohm: No. Listen to me.

Minor:  reamed out because I left for 5 minutes.

Bohm: Mr. Minor?

Minor: What if I went to the bathroom?

Bohm: I tell you what Mr. Minor. Give that to Mr. Minor. (Judge handed off
a pad.) You go sit in the corner right now. And you're going to write 50
times, "I will not disrespect the Court."

Minor: Yes, Your Honor.

'Felt like 10-year-old'

Minor completed the judge's task as ordered. "I felt like a 10-year-old
boy that day," he said.

As is common among federal judges, Bohm declined to be interviewed.

Lubet, the Northwestern professor, wrote a legal journal article about
another local judge  U.S. District Judge Sam Kent of Galveston, and titled
it Bullying From the Bench.

The 2001 piece discusses an opinion in which Kent chided the attorneys for
being amateurish, needled that they drafted their pleadings "entirely in
crayon" and said the legal briefs had the "inexplicable odor of wet dog."

The article noted that Kent referred to something as "asinine" in 13
opinions, while the word had only been used 16 times since 1944 in
opinions from all the U.S. Courts of Appeals.

The judge did not respond in the article, and could not be reached for
this story.

Assignment not bullying

Though Lubet called Kent a bully, he does not think Bohm's writing
assignment was bullying.

"Especially if the lawyer was raising his voice, it sounds like the judge
de-escalated a situation," Lubet said.

"Now and then, showing a temper is not bullying and not abusive, it's
inevitable," Lubet said.

State District Judge Grant Dorfman said he's seldom raised his voice from
the bench, though he does recall shouting when two lawyers nearly came to
blows just a few feet in front of him.

"Any judge who spent more than a couple of months on the bench would
understand," Dorfman said. "Lawyers talk over each other, they sometimes
escalate their verbal confrontations."

The judge said lawyers can be pretty irritating and disrespectful, and a
judge can only take so much.

"You learn to cope with that sensation," Dorfman said. Still, he said,
jurists at the end of their ropes sometimes might direct anger at the
latest lawyers to misbehave with a fury covering all the recent
transgressors.

Lubet describes most judicial intemperance as "low-level nastiness, the
dyspeptic, impatient and unreasonable," which seldom brings formal
sanction.

Federal rules don't make room for much public reprimanding of judges.

At the state level, the Texas State Commission on Judicial Conduct can do
anything from private reprimand to removal from office. Commission
attention is pretty much for bigger matters, such as being drunk on the
bench, using the bench to gain favor for a relative or sexual misconduct.

But sometimes a reprimand is for something odder: One judge was cited for
urinating in a trash can in public at a bar association reception, and
another for chasing after a squirt gun-wielding child in a Little League
parade, putting him in a headlock and squirting him in the face.

The legal pad

 Fulbright & Jaworksi partner Linda Addison was honored last week in New
York by the National Law Journal, which named her one of the "50 Most
Influential Women Lawyers In America."

 Jim Derrick, former general counsel of Enron, and Max Hendrick, a former
Vinson & Elkins lawyer who worked on Enron matters, are among the lawyers
opening a Houston office for Kelly Hart & Hallmann, a Fort Worth-based
firm.

(source: Houston Chronicle)

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

Low-budget care for mentally ill


The $48 million that Texas lawmakers added to the budget for the 13 state
schools that house Texans with mental disabilities won't pull the troubled
system out of the hole it's in. The hole is too deep.

Those millions were approved to appease federal authorities who found
unsafe and unhealthy conditions in the Lubbock State School. But the
problems with state schools extend far beyond Lubbock, and some
legislators now think the $48 million isn't enough. It appears they are
correct in their assessment.

As with the Texas Youth Commission, the state agency for juvenile
offenders, the state schools have staffing and oversight problems. The
Youth Commission found itself in a sex abuse scandal earlier this year,
and its management was gutted after a series of investigations. It is now
under the direction of a conservator appointed by the governor, though its
travails are far from over.

Problems in the state schools appear more systemic: low pay, chronic staff
turnover and stressful jobs caring for the state's most vulnerable youths
and adults, those with mental retardation.

Add to those challenges the issue of oversight. State schools are in the
Department of Aging and Disability Services, which is under the direction
of Health and Human Services Commissioner Albert Hawkins. The thousands of
complaints emanating from the state schools each year are investigated by
the Department of Family and Protective Services, which also is overseen
by Hawkins.

Some lawmakers are demanding an independent inspector for the state
schools so that investigators aren't under the same authority as the
employees being investigated. Others have suggested making the Health and
Human Services inspector a sworn officer, so he or she can bring criminal
charges.

There is no question that abuse occurs in the state schools. Austin state
Rep. Elliott Naishtat said complaints come in by the thousands and have
for decades. Naishtat, who has a special interest in the Austin State
School and is former chairman of the House Human Services Committee, said
there simply isn't enough money in the system "to guarantee proper care in
a safe environment."

State school employees have demanding jobs, and the high turnover means
some must work long shifts until new hires are interviewed, trained and
assigned. At a recent legislative hearing, some employees reported working
16-hour shifts.

A major concern is pay, which averages $450 a week. That, and the
difficult nature of the work, produce a high turnover rate. The interim
superintendent of the Corpus Christi State School said he loses a third of
his direct-care staff each year.

That's a formula for catastrophe in a system that recorded two deaths this
summer. Lawmakers, who saw the collapse of the Youth Commission, don't
want another agency meltdown.

State school residents range from those with mild retardation who live
semi-independently and work to those with severe mental retardation. One
proposed solution is for Texas to close the schools and move to a system
of smaller group homes, where the residents have more control over their
lives. But, as Naishtat noted, some state school residents need - and
always will need - 24-hour care.

Still, state policy should be to move as many residents as possible into
smaller, community settings in the coming years. But as long as the state
maintains institutions for those with mental retardation, lawmakers should
fund them at a level adequate enough to guarantee that they are safe,
comfortable and provide good care.

(source: Austin American-Statesman)