This is G o o g l e's cache of http://www.tcadp.org/appendix.php as retrieved on Mar 26, 2007 12:43:51 GMT.
G o o g l e's cache is the snapshot that we took of the page as we crawled the web.
The page may have changed since that time. Click here for the current page without highlighting.
This cached page may reference images which are no longer available. Click here for the cached text only.
To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:g218YQNy1rwJ:www.tcadp.org/appendix.php+richard+brimage+accomplice&hl=en&ct=clnk&cd=3&gl=us&client=firefox-a
Google is neither affiliated with the authors of this page nor responsible for its content.
These search terms have been highlighted: richard brimage accomplice
Texas Coalition to Abolish the Death Penalty
Austin - Dallas/Fort Worth - Lubbock - El Paso - San Antonio - Victoria - Beaumont College Station - Corpus Christi - Houston - Rio Grande Valley
TCADP Home
Contact
Act
Learn
TCADP Speakers Bureau
Healing
Inmates
Store
Join Us
Join Us Donate to TCADP
TCADP
TCADP
Austin
Austin
Dallas/ Fort Worth
Dallas/ Fort Worth
Lubbock
Lubbock
El Paso
El Paso
San Antonio
San Antonio
Victoria
Victoria
Beautmont
Beautmont
College Station
College Station
Corpus Christi
Corpus Christi
Houston
Houston
Rio Grande Valley
Rio Grande Valley
TCADP STATE OFFICE
TCADP STATE OFFICE
Austin
Austin
Dallas/ Fort Worth
Dallas/ Fort Worth
Lubbock
Lubbock
El Paso
El Paso
San Antonio
San Antonio
Victoria
Victoria
Beaumont
Beaumont
College Station
College Station
Corpus Christi
Corpus Christi
Houston
Houston
Rio Grande Valley
Rio Grande Valley
Contact Lawmakers
Contact Lawmakers
Vigils
Vigils
Regional Chapters
Regional Chapters
Blog
Blog
Constitutional Issues
Constitutional Issues
Facts
Facts
Appendix
Appendix
Links
Links
TX Death Penalty Resource Guide
TX Death Penalty Resource Guide
Resources
Resources
News
News
About TCADP
About TCADP
Newsletter Archive
Newsletter Archive
Photo Gallery
Photo Gallery
Prison Conditions
Prison Conditions
Pen Pal
Pen Pal
Texas State Killings
Texas State Killings
Scheduled Executions
Scheduled Executions
Inmate Links
Inmate Links
Membership
Membership
Donate to TCADP
Donate to TCADP
Workplace Giving
Workplace Giving
Supplemental Information on the Texas Death Penalty
There is a great deal of material here.
Please click on a title to take you to the appropriate section of the page.
* Appendix A Texas Prisoner Rights
* Appendix B Jury Questionnaire
* Appendix C Innocent on Texas DR
* Appendix D Texas Death Row Photos
* Appendix E Texas Prison Health Care
* Appendix F Juvenile Offenders
* Appendix G Crime Trends in Texas
* Appendix H Cruel and Unusual
* Appendix I Texas Death Penalty Fact Sheet
* Appendix J TCADP Newsletter
* Appendix K Govs' Perry & Bush
* Appendix L Mental Illness
* Appendix M Abolition Petitions
* Appendix N In the news...
A:Texas Prisoner Rights
Texas Department of Criminal Justice Rules -
TITLE 37. Public Safety and Corrections
VI. TEXAS DEPARTMENT OF CRIMINAL JUSTICE
§157.39. Offender Rights.
The facility protects the safety and constitutional rights of offenders and seeks a balance between expression of individual rights and preservation of facility order.
(1) Access to courts. Each facility will maintain written policy, procedure, and practice to ensure offender access to courts in conformity with the laws and the Constitution of the United States and the State of Texas.
(2) Access to counsel. Each facility will maintain written policy, procedure, and practice to ensure and facilitate offender access to counsel and assist offenders in making confidential contact with attorneys and their authorized representatives; such contact includes, but is not limited to, telephone communications, uncensored correspondence, and visits.
(3) Attorney/client visiting. Attorneys may arrange visits with offenders by making a request through the warden/facility administrator's office twenty-four (24) hours in advance of the requested time. Visits will be visually supervised by security staff, but such visits will take place out of the normal hearing range of the officer. Visiting attorneys will not be searched; their property, however, may be searched for physical contraband. Attorneys and offenders may exchange written materials directly. Where practical and possible, attorneys may request telephone contact with their clients in lieu of an attorney visit. Special requests by offenders to phone attorneys will be considered only when unusual circumstances occur. Wardens/facility administrators will be responsible for approving any such special requests.
(4) Access to law library. Each facility will maintain written policy, procedure, and practice to provide that offenders have access to legal materials, as specified by division policy, to help them with criminal, civil, and administrative legal matters. Indigent offenders shall have access to paper, writing materials, postage, and other supplies and services related to legal matters.
(5) Personal legal material. The facility administrator will maintain policy, procedure, and practice to allow the offender to keep legal materials. The amount of legal material will not exceed the storage space assigned to the offender. Personal legal material may be searched for contraband. Legal materials may not be read for content without proper authorization.
(6) Access to programs and services. Facility administrators shall insure written policy, procedure and practice provide that program access, work assignments, and administrative decisions are made without regard to the offender's race, religion, national origin, sex, or political views and that such placement is within the guidelines set forth by the offender's medical and classification restrictions.
(7) Special management. Offenders in special management because of behavioral problems should be provided with programs conducive to their well-being.
(8) Protective custody status. Offenders in protective custody status should be allowed to participate in as many of the programs afforded the general population, providing such participation does not threaten facility security.
(9) Equal opportunity. Where males and females are housed in the same facility, equal opportunities shall be provided for participation in programs and services. They are provided separate sleeping quarters but equal access to all available services and programs. Neither sex is denied opportunities solely on the basis of their smaller number of the total population.
(10) Offender communications. Each facility shall maintain written policy, procedure, and practice to grant offenders the right to communicate or correspond with persons or organizations, subject only to the limitations necessary to maintain order and security.
(11) Grievance procedures. Facility administrators shall ensure that there is a written offender grievance procedure that is made available to all offenders which includes at least one level of appeal. An independent review of grievance decisions made at facility level may be conducted by the State Jail Division.
(12) Offender requests. Each facility shall maintain a written policy describing the manner in which offenders may make written requests of the staff.
(13) Prohibition of harassment. There will be no harassment of or retaliation against any offender for exercising their access to the courts or filing a grievance.
The provisions of this §157.39 adopted to be effective April 15, 1994, 19 TexReg 2402; amended to be effective
December 12, 1994, 19 TexReg 9375; amended to be effective May 31, 1995, 20 TexReg 3663.
Texas Administrative Code Rules - Abuse and Neglect
TITLE 37 PUBLIC SAFETY AND CORRECTIONS
PART 6 TEXAS DEPARTMENT OF CRIMINAL JUSTICE
CHAPTER 153 INTERNAL INQUIRIES
SUBCHAPTER A
INVESTIGATIONS OF ABUSE, NEGLECT, OR EXPLOITATION IN A
FACILITY OPERATED BY THE TEXAS DEPARTMENT OF CRIMINAL
JUSTICE
RULE §153.4
Abuse, Neglect, and Exploitation Defined
(a) Abuse of an elderly or disabled person means the intentional, knowing, reckless, or negligent infliction of injury or intimidation with resulting physical or emotional harm or pain or mental anguish, or sexual abuse, including an unnecessary or excessive use of force or the inappropriate use of restraints or seclusion.
(b) Abuse does not include:
(1) the proper use of restraints or seclusion in accordance with federal or state laws or regulations, agency policies, or court
order;
(2) other actions taken in accordance with federal or state laws or regulations, agency policies, or court order;
(3) actions an employee may reasonably believe to be immediately necessary to avoid imminent harm to self, patients or clients, or other individuals if such actions are limited only to those actions reasonably believed to be necessary under the existing circumstances; or
(4) complaints related to the daily administrative operations of a facility (e.g., staffing ratios).
(c) Neglect of an elderly or disabled person means the failure by the caretaker to provide the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain.
(d) Exploitation of an elderly or disabled person means the illegal or improper act or process of a caretaker who has an ongoing relationship with the elderly or disabled person using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain.
Texas Administrative Code
TITLE 37 PUBLIC SAFETY AND CORRECTIONS
PART 9 TEXAS COMMISSION ON JAIL STANDARDS
CHAPTER 283 DISCIPLINE AND GRIEVANCES
Rules
§283.1 Inmate Discipline Plan
§283.2 Inmate Rules and Regulations
§283.3 Inmate Grievance Plan
Texas Administrative Code
TITLE 37 PUBLIC SAFETY AND CORRECTIONS
PART 9 TEXAS COMMISSION ON JAIL STANDARDS
CHAPTER 273 HEALTH SERVICES
Rules
§273.1 Health Services
§273.2 Health Services Plan
§273.3 Health Instructions
§273.4 Health Records
§273.5 Mental Disabilities/Suicide Prevention Plan
§273.6 Restraints
§273.7 Tuberculosis Screening Plan
§273.8 Health Services
Return to top
B: Juror Questionairre
I. INTRODUCTION
Death is different. You might ask, "What do you mean death is different?". The criminal trial practitioner called upon to defend a person in a death penalty trial can attest to the fact that there is nothing to compare to the emotionally charged roller coaster ride which can potentially result in the ultimate verdict of death. Even our brethren in robes fully acknowledge the difference that accompanies a death penalty trial. Our Supreme Court has expressly recognized that death is different from any other punishment, Gardner V. Florida, 438 S.W. 349,357(1977), and through an Eighth Amendment analysis has stated that "the death penalty is unique in its total irrevocability... in its rejection of rehabilitation…and its absolute renunciation in all that is embodied in our concept of humanity".
Death penalty jury selection has been compared to the Alaska Iditarod. It should be. Because only through preparation and relentless execution will success even be remotely possible. For the criminal trial practitioner defending a person against the death penalty, this trial is the greatest challenge and highest calling of one's career. The criminal trial lawyer must approach this litigation with an absolute zeal and a firm resolve to insure that if his client is executed at some future date, he has the solemnity and peace of mind in knowing that his absolute finest efforts were exhausted in representing that individual. That lawyer must be able to sleep well on the evening of his client's execution knowing that every motion that should have been filed was filed, every witness that should have been interviewed has been interviewed, every question that should have been asked was asked, an exhaustive jury selection process was undertaken, every objection that should have been made was made, every argument that should have been made was made and that his relentless efforts on behalf of his condemned client did not fail for lack of methodical preparation and diligence.
No place in the law is it as important as in a death penalty trial that counsel be conscious of protecting not only the state appellate court record but also the federal post conviction record for any relief sought under the United States Constitution. The practitioner does not try the case to the jury alone. These cases are tried for multiple audiences: the jury, the judge, the state appellate court, the federal courts and ultimately, the Supreme Court of theUnited States. It becomes the attorney's passion to juggle all of these competing interests week after exhausting week during pretrial hearings, jury selection and actual trial of the case. The lawyer must insure that this client is not executed because of some issue that is left unresolved due to his procedural default. What makes death "different" is that the verdict is so incredibly final and each of us has a responsibility to meticulously protect the trial record on all fronts in order to insure that no basis of relief, constitutional or statutory, is waived.
Counsel should not limit areas of jury selection to only those issues which he or she feels may hold some promise. In the early 1980's, lawyers engaged in death penalty practice in Texas thought the attack on Article 37.071 C.C.P. for its inability to permit the jury to consider mitigating evidence was a dead issue because of Jurek V. State, 522 S.W.2d 934 (Tex.Crim.App. 1975), affd on othergrounds428 U.S. 262(1976). In 1988, we learned in Franklin v. Lynau~h, 108 S.Ct. 2320, 101 L.Ed.2d (1988) that there was an Eighth Amendment infirmity with Article 37.071 C.C.P. and the Court simply needed to be presented with the right case. Finally, in Penry V. Lynaugh, 109 S.Ct. 2934 (1989), we learned that given sufficient mitigating evidence, the jury must receive a punishment instruction supplementing the Article 37.071 C.C.P. charging paragraph that states they may consider and give effect to mitigating evidence by voting in favor of a life sentence.
Lawyers who failed to request mitigating instructions held their breath until Selvage V. Collins, 816 S.W.2d 390 (Tex.Crim.App. 1991). Selvage permitted an appellate court to review a capital defendant's mitigating circumstances even if such evidence was not properly presented at trial and mitigating instructions requested.
The severe consequences of counsel's failure to raise every conceivable issue is perhaps most vividly demonstrated in Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), wherein psychiatric evidence in violation of the Fifth and Sixth Amendments was admitted at Smith's trial. This issue was not raised on direct appeal because at the time of the appeal, the Supreme Court 9f Virginia had rejected this same claim in another case. Thereafter, the United States Supreme Court held that the admission of such testimony without Miranda warnings and notice to counsel was violative of the Fifth and Sixth Amendments. Because Smith had not raised the issue on direct appeal at a time when it would have been clearly futile, the Supreme Court held he was not entitled to relief in the federal courts. Mr. Smith was executed in 1986.
Every criminal practitioner involved in capital litigation should be limited only by ethical considerations and his own creativity in ensuring that there is a relentless voir dire process. The more decisions a presiding judge is required to make, the greater potential for error in the case.
Every avenue should be explored. The law is evolving daily. The composition of our Court of Criminal Appeals and the Supreme Court of the United States has changed dramatically. Today's losing issue could be tomorrow's hot topic and new hope.
An understanding of the voir dire process, the law governing challenges, excuses, exemptions, and the intelligent exercise of peremptory challenges are all means to this end. But nothing can substitute for the innate ability or sense to read a prospective juror's true colors and eliminate him or her without exhausting one of those precious peremptory challenges.
A suitable jury for the defense in a death penalty prosecution is one which is emotionally, psychologically and philosophically receptive to your client's background and case. As a result, the decision to kill is a moment when jurors step out of their normal fact-finding roles and become moral agents. As Justice Stevens stated in the Supreme Court case of Spaziano v. Florida, 468 U.S. 447 (1984), the jury's decision to impose death "rests on not a legal but an ethical judgment."
II. VENUE (Article 31.03 C.C.P.)
The defense has two grounds upon which to request a change of venue: (1) there is a prejudice against him in the county where the prosecution commenced that is so great that there is substantial doubt whether he can receive a fair and impartial trial in said county and, (2) that there is a dangerous combination against him instigated by influential persons that would prevent him from obtaining a fair and impartial trial.
The motion for change of venue must be supported by the defendant's affidavit and the affidavits of two credible residents of the county. Unless the state controverts the motion, there is a change of venue as a matter of law.
Pursuant to Article 28.01 C.C.P. the motion must be filed prior to the pre-trial motion hearing date and presented at that time. If no pretrial hearing date, file it prior to announcement of ready. Stapleton V. State, 565 S.W.2d 532.
III. THE JURY PANEL (Special Venire, Arts. 34.01 & 34.04 C.C.P.)
The TEXAS GOVERNMENT CODE §62.001 provides that the jury wheel from which our
panels are derived come from the county voter registration lists, combined with the Texas
Department of Public Safety driver's license and personal identification card or certificate lists.
Defense counsel is entitled to receive the venire list two (2) days prior to trial (Art. 34.04, C.C.P.)
See also Government Code §62.102 and §62.1031 for qualifications.
A. CHALLENGES TO THE PANEL:
One may attempt to challenge the array pursuant to Article 35.07 C.C.P. only on the grounds that the officer who summons the jury did so with willful intent to obtain jurors with a view to securing a conviction or acquittal. The challenge must be in writing setting forth the ground for such challenges and be supported by affidavit. Esquivel v. State, 595 S.W.2d 516, (Tex. Cr. App. 1980), cert. denied 449 U.S. 986(1980). The trial court must hear and determine the challenge to the array before interrogating the panel or to their qualifications. See Art. 35.06, C.C.P. Denial of a challenge to the array by the trial court is not reversible error unless the defense shows that he was forced to accept an objectionable juror. Cooks V. State, 844 S.W.2d 697 (Tex.Crim.App. 1992), cert. denied 1135 S.Ct. 3048 (1 993).
B. ATTACHMENT:
Article 35.01 C.C.P. Provides that an attachment may issue upon request of either party for an absent summoned juror.
C. EXEMPTIONS:
Government Code § 62.106 governs exemptions from jury service and provides as follows:
(a) A person qualified to serve as a petit juror may establish an exemption from jury service if the person:
(1) is over 70 years of age;
(2) has legal custody of a child younger than 10 years of age and the person's service on the jury requires leaving the child without adequate supervision;
(3) is a student of a public or private secondary school; (4) is a person enrolled and in actual attendance at an institution of higher education;
(5) is an officer or an employee of the senate, the house of representatives, or any department, commission, board, office, or other agency in the legislative branch of state government;
(6) is summoned for service in a county with a population of at least 200,000, unless that county uses a jury plan under Section 62.011 and the period authorized under Section 62.01 (b)(5) exceeds two years, and the person has served as a petit juror in the county during the 24-month period preceding the date the person is to appear for jury service;
(7) is the primary caretaker of a person who is an invalid unable to care for himself; or
(8) except as provided by Subsection (b), is summoned for service in a county with a population of at least 250,000 and the person has served as a petit juror in the county during the three-year period preceding the date the person is to appear for jury service.
(b) Subsection (a)(8) does not apply if the jury wheel in the county has been reconstituted after the date the person served as a petit juror.
The defense must show harm once again, i.e. forced to accept an objectionable juror for there to be reversible error. Starles V. State, 776 S.W.2d 808 (Tex. App. - Fort Worth, 1989).
D. CENTRAL JURY ROOM QUESTIONING REGARDING QUALIFICATIONS AND EXCUSES:
Government Code § 62.102 sets out general qualifications for jury service and provides that a person is disqualified to serve as a petit juror unless he:
(a) is at least 18 years of age;
(b) is a citizen of this state and of the county in which he is to serve as a juror;
(c) is qualified under the constitutions and laws to vote in the county in which he is to serve as a juror;
(d) is of sound mind and good moral character;
(e) is able to read and write;
(f) has not served as a petit juror for six days during the preceding three months in the county court or during the preceding six months in the district court;
(g) has not been convicted or a felony; and
(h) is not under indictment or other legal accusation of misdemeanor or felony theft or any other felony.
Though there is no absolute right to be present at the questioning of the general panel in the central jury room by the defendant, it is common practice to have the defendant and counsel present so that the trial court can hear and grant (or deny) excuses. To grant excuses absent the defendant is error. Yanez V. State, 677 S.W.2d 62, 67 (Tex. Crim. App. 1984). But see, Bath V. State, 951 S.W.2d 11, 22-23 (Tex. App. - Corpus Christi, 1997).
Article 35.03 § 1, C.C.P. provides that the court shall determine excuses offered for not serving as a juror, and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror's service to a date specified by the court.
Article 35.03 §2, C.C.P. gives only the trial court discretion to excuse prospective jurors in a capital case. Article 36.29(1,) C.C.P. allows the trial court in a capital case to replace a disabled juror with an alternate after the jury is sworn.
Government Code, Section 62.110(c) provides that the court or the court's designee may not excuse a prospective juror for an economic reason unless each party of record is present and approves the release of the juror for that reason.
When defense counsel deems a juror improperly excused, he must make a timely and specific objection and request an attachment of said juror. Coleman V. State, 881 S.W.2d 344 (Tex. Crim. App. 1994), cert. denied 15 S.Ct. 763 (1995). Counsel should ensure all of the steps taken to preserve error are on the record.
E. SHUFFLE (Art. 35.11, C.C.P.):
A shuffle demand must be made prior to the commencement of voir dire examination of the panel, i.e., before the prosecutor addresses the panel. Williams. State, 719 S.W.2d 573 (Tex. Cr. App. 1986).
In capital cases, voir dire commences when the judge begins examining the ~el. Davis v. State, 782 S.W.2d 211 (Tex.Crim.App. 1989).
In Johnson v. State, 977 S.W.2d 137 (Tex.Crim.App. 1998), the Court of Criminal Appeals held that a trial court errs in denying a defendant's request for a jury shuffle where the first shuffle was procedurally improper. However, if the defendant requests the first shuffle and does not object to its procedures, there is no error in denying a subsequent request for a shuffle. Because the first shuffle of the jury was not a legal shuffle, the court holds that the trial court erred in denying the defendant's subsequent motion to shuffle the jury. Nevertheless, the defendant waived error because he did not complain about the procedural irregularities of the initial shuffle. The defendant requested the shuffle before the jury was seated and then asked for another shuffle because he was not satisfied with how the panel was seated. The defendant's objection to the first shuffle was not based on the procedures used, but merely on the result.
Both the State and the defense are permitted one shuffle under Art. 35.11 C.C.P. Urbano V. State, 760 S.W.2d 33, (Tex.App. --Houston [1st Dist] 1988). [In Urbano the court granted a defense request for a shuffle, then outside the presence ofthe defendant granted the State1s request for a shuffle.] This decision conflicts with Contreras v. State, 733 S.W.2d 646 (Tex.App. --San Antonio 1987). In Contreras, the court held that the statute only required one shuffle. First come, first served. See Chappell v. State 850 S.W.2d 508 (Tex.Crim.App. 1993). The State requested another shuffle after the jury panel was shuffled at the request of the defendant. The Court of Criminal Appeals reversed saying that such error was not even the subject of harm analysis. Jones v. State, 853 S.W.2d 146 (Tex.Crim.App. 1992).
However, following Roberts V. State. No. 1481-97 (Tex.Crim.App. 10/21/98), it now appears that jury shuffle error is subject to a harm analysis.
PRACTICE NOTE: Counsel should be familiar with the proposed procedure for selection. Counsel is entitled to individual voir dire pursuant to Art. 35.17, C.C.P., so the shuffle often occurs in a central jury room.
F. JUROR QUESTIONNAIRES
Counsel should always submit a proposed questionnaire for dissemination to thejury.
This helps formulate a jury selection outline as well. See attachment. No.1
G. VOIR DIRE PROCEDURE (Art. 35.17 §2, C.C.P.):
Art. 35.17 §2 provides:
"In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may fi1ler questions the juror on the principles propounded by the court."
The procedure for exercising challenges in a capital case is set forth in Article 35.13C.C.P:
"A juror in a capital case in which the state has made it known it will seek the death penalty, held to be qualified, shall be passed for acceptance first to the state and then to the defendant. Challenges to jurors are either peremptory or for cause."
The trial court has authority to permit each side to question the entire panel collectively before individual voir dire commences.
Counsel is often presented with a strategic decision of exercising the 15 peremptory challenges at the time the juror is passed or after the panel has been finally qualified by the court: The latter has been a preference in Tarrant County with, of course, approval of the trial court.
IV. LAW OF DEATH PENALTY JUROR QUALIFICTION
A. TEST UNDER WAINWRIGHT V. WITT
Under Wainwright v. Witt, a prospective juror can be removed for cause if his views on capital punishment are such that they would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright V. Witt, 469 U.S. 412 (1985); Adams v. Texas, 448 U.S. 38 (1980); Lockhart v. MeCree, 476 U.S. 162(1986); McFadden v. Johnson 166 F.3d 757(5th Cir. 1999); United States v. Webster, 162 F.3d 308 (5~ Cir. 1998); William v. Collins, 16 F3d 626 (5~ Cir. 1994); cert. denied 512 U.S. 1289 (1994); Smith v. State. 907 S.W.2d 522 (Tex.Crim.App.1995); Garcia. State, 887 S.W.2d 862 (Tex.Crim.App. 1994), cert. denied, 514 U.S. 1005 (1995); Zimmerman V. State. 860 S.W.2d 89 (Tex.Crim.App. 1993), cert. denied 513 U.S. 1021(1994); DeBlanc V. State. 799 S.W.2d 701 (Tex.Crim.App. 1990), cert. denied, 501 U.S. 1259 (1991); Pierce V. State, 777 S.W.2d 399 CFex.Crim.App. 1989), cert. denied 496 U.S. 912 (1990) ["If the juror is to obey his oath and follow the laws of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty, but also to answer the statutory questions without conscious distortion or bias.'1] Adams V. Texas, 448 U.S. 38 (1980); Gunter V. State, 858 S.W.2d 430 (Tex.Crim.App. 1993); cert. denied 510 U.S. 921(1993).
Prospective jurors who cannot fairly apply a valid capital punishment statute are not qualified. Ex parte Hughes. supra; Bell V. State, supra; McCoy V. State, 713 S.W.2d 940 (Tex.Crim.App. 1986), cert denied 480 U.S. 940 (1987). Jurors are disqualified when their opinions on the death penalty would either cause them to (1) refuse to return a verdict of guilty to capital murder; (2) be unable to honestly answer the special punishment issues following the instructions of the court. E.g., Garcia V. State, 887 S.W.2d 862 (Tex.Crim.App. 1994), cert. denied 514 U.S. 1005 (1995) [Prospective juror could not answer affirmatively the special issues.]; Chambers V. State, 866 S.W.2d 9 (Tex.Crim.App. 1993), cert. denied 511 U.S. 1100 (1993) [Prospective juror who would vote "no" to avoid imposing the death penalty is disqualified.]; Long V. State, 823 S.W.2d 259 (Tex.Crim.App. 1992), cert denied 505 U.S. 1224 (1992) [The prospective juror stated that he would vote "no" in order to prevent imposition of the death penalty.]. Even though a prospective juror states that he would not "lie" or consciously answer punishment issues falsely, he may be disqualified if the trial judge's assessment for the juror's responses leads to the conclusion that his death penalty beliefs would substantially impair his ability to answer the questions accurately.
Witherspoon and Witt limitations on the disqualification of prospective jurors who are against the death penalty only applies to challenges for cause. Witt does not limit state's power to exercise peremptory challenges to remove prospective jurors. Andrews v. Collins, 21 F.3d 612 (5th Cir. 1994), cert denied 513 U.S. 1114(1995); Staley V. State, 887 S.W.2d 890 (Tex.Crim.App. 1994), cert. denied 514 U.S. 1020 (1995); Hernandez v state, 809 S.W.2d 806 (Tex.Crim.App. 1991), cert. denied 504 U.S. 974 (1992).
Both sides have the right to explore the prospective jurors' attitudes regarding capital punishment. The Court of Criminal Appeals has rejected the argument that the Texas special
issue practice makes the juror's opinions on the death penalty irrelevant. Jones v. State, 843 S.W.2d 487 (Tex.Crim.App. 1992), cert. denied 507 U.S. 1035 (1993).
B. SPECIFIC INSTANCES OF DISQUALIFIED JURORS UNDER WAINWIRGHT V. WITT
Although prospective jurors cannot be removed for their opposition to the death penalty, a prospective juror can be excused if an individual's emotional opposition is to severe that it would cause the juror to be unable to answer the special issues without distortion. Mann V. Scott, 41 F.3d 968 (5th Cir. 1994), cert. denied 514 U.S. 1117 (1995).
A prospective juror who states that he could not take the oath to render a true verdict in a case involving the death penalty is disqualified. Ellis v. Lvnaugh 873 F.2d 830 (5~" Cir. 1989), cert. denied 493 U.S. 970 (1989); Smith v. State 907 S.W.2d 522 (Tex.Crim.App.
1995); Gunter v. State 858 S.W.2d 430 (Tex.Crim.App. 1993); cert. denied 510 U.S. 921 (1993). When a venire person states that her convictions about the death penalty are such that she cannot take the standard oath administered to jurors, the venire person is subject to challenge for cause. Such a venire person has made it "unmistakably clear that he could not be trusted to 'abide by existing law' and 'to follow conscientiously the instructions' of the trial judge." Cooks v. State, 844 S.W.2d 697 (Tex.Crim.App. 1992), cert denied 509 U.S. 927 (1993); Goodwin v. State 799 S.W.2d 719 (Tex.Crim.App. 1990) [Prospective juror who stated that she could not take the oath was disqualified even though she stated if forced to participate she would truthfully answer the special issues. The trial judge's decision to grant the state's challenge was not an abuse of discretion.]; Smith v. State, supra; Montova V. State, 744 S.W.2d 15 (Tex.Crim.App. 1987), cert. denied 487 U.S. 1227 (1988).
A prospective juror who acknowledges religious views that conflicted with the state law was disqualified because he could not affirm that he would adhere to the courts instructions on the law. Kinnamon V. State, 791 S.W.2d 84 (Tex.Crim.App. 1990).
When the record shows that there is serious doubt about whether the juror can actually vote to impose the death penalty, the prospective juror is subject to challenge although the juror may not be philosophically opposed to the death penalty. United States v. Webster, 162 F.3d 308 (5~ Cir. 1998). When the prospective juror states that he cannot apply the Texas special issues even though he has no philosophical disagreement with capital punishment, the juror has a bias against the state law. Drinkard v. State 776 S.W.2d 181 (Tex.Crim.App. 1989).
C. JUROR DISQUALIFICATION FOR INABILITY TO APPLY AN ASPECT OF TEXAS DEATH
PENALTY LAW
Many prospective jurors are disqualified from jury service in capital cases because they cannot set aside their own predilections and follow the requirements of the law.
The prospective juror must be willing to follow the specific provisions of the law applicable to the case. A prospective juror who states that he is unwilling to impose the death penalty for the particular class of murder charged is not qualified, even though the
juror might be willing to consider the death penalty for other types of offense. United
States V. Moore, 149 F.3d 773 (8th Cir. 1998), cert. denied 119 S.Ct. 570 (1998) [Trial judge properly granted challenge against (1) a juror who could not consider death penalty for a party (2) a juror would only consider death penalty "if a person murdered 100 or 200 people."]; Fuller V. State 829 S.W.2d 191(Tex.Crim.App. 1992), cert. denied 508 U.S. 941 (1993) [The prospective juror was unwilling to impose the death penalty unless there was evidence that the defendant was a serial killer. The court reasoned, "because our law does not categorically reserve capital punishment only for those who have murdered before, neither may individual jurors in capital murder case. They may, of course, hold that the absence of prior criminal history militates strongly against the death penalty. They may even find it difficult to imagine answering the second punishment issue affirmatively without convincing proof of past violence, regardless of other circumstances in the case. But they may not wholly refuse, before hearing any evidence whatsoever, to consider an accused for the death penalty unless he has been convicted of murder before."].
A juror who could not consider the death penalty unless the killing was premeditated is disqualified. Patrick v. State, 906 S.W.2d 481 (Tex.Crim.App. 1995); White V. State, 779 S.W.2d 809 (Tex.Crim.App. 1989), cert. denied 493 U.S. 9005 (1990); Esquivel V. State, 595 S.W.2d 516 (Tex.Crim.App. 1980), cert. denied 449 U.S. 986(1980); Chambers V. State, 568 S.W.2d 313 (Tex.Crim.App. 1978), cert. denied 440 U.S. 928(1979). A juror who could only consider the death penalty if the defendant confessed is not qualified. United States v. Flores, 63 F.3d 1342 (5th Cir. 1995); Monroe v. Blackburn, 748 F.2d 958 (5th Cir. 1984), cert. denied 476 U.S. 1145(1986). A prospective juror who states that he would not vote forth death [penalty in a case involving the law of parties (non-triggerman), regardless of the evidence can be excused. Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App. 1984); Session v. State, 676 S.W.2d 1009(1985). A prospective juror who states that he could only assess the death penalty if the victim is a family member, is disqualified. Bell v. Lvnaugh, 828 F.2d 1085 (5th Cir.), cert. denied, 484 U.S. 933 (1987); O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983); Fearance v. State, 771 S.W.2d 486 (Tex.Crim.App. 1988), cert. denied, 492 U.S. 927(1989); Bell v. State, supra; Miller v. State, 741 S.W.2d 382 (Tex.Crim.App. 1987), cert. denied 496 U.S. 1061(1988). A prospective juror who would only consider the death penalty if victim was small child was disqualified. Russell v. Collins, 998 F.2d 1287 (5~ Cir. 1993), cert. denied 510 U.S. 1185(1994).
In Patrick v. State, 906 S.W.2d 481 (Tex.Crim.App. 1995), the Court held that a prospective juror unable to distinguish between "probability" and "possibility" is disqualified.
D. REQUIRING THE STATE TO SATISFY A BURDEN GREATER THAN THE LAW REQUIRES.
If a venire member indicates that he would hold the state to a higher standard of proof than that of beyond a reasonable d6ubt, then that venire member is subject to a challenge for cause under Art. 35.1 6(1,)(3) C.C.P. Cook v. State, 858 S.W.2d 467 (Tex.Crim.App. 1993). A prospective juror who would refuse to follow the court's instructions on reasonable doubt and would require proof beyond all doubt is not qualified. E.g., Wools v. McCotter, 798 F.2d 695 (5th Cir. 1986), cert. denied 478 U.S. 1031(1986); Corwin v. Johnson,150 F.3d
467 (5th Cir. 1993) cert. denied 509 U.S. 925(1993); Drew V. Collins. 964 F.2d 411 (5th Cir.
1992), cert. denied 509 U.S. 925 (1993); Jackson v. State, 822 S.W.2d 18 (Tex.Crim.App.
1992), cert. denied 509 U.S. 921(1993) [The prospective juror stated that he would hold the
state to 100% or beyond any doubt.].
E. LESSER OFFENSES
Jurors in capital cases should always be questioned about their ability to consider the lesser offense of murder. It is error to deny a defendant the right to voir dire jurors on this issue. Santana v. State. 714 S.W.2d I (Tex.Crim.App. 1986).
A juror's bias or prejudice against the entire range of punishment, including the death penalty, is a proper area of inquiry. Livingston v. State 739 S.W.2d 311 (Tex.Crim.App. 1987); C.C.P. Art. 35.16(1,)(1)(3), (c)(2). For example, a juror who states an inability to consider life imprisonment as a punishment for capital murder may be subject to challenge for cause. Cuevas V. State, 575 S.W.2d 543 (Tex.Crim.App. 1978). A juror must be able to consider the full range of punishment, including that for the lesser offense of murder. Cordova V. State, 733 S.W.2d 175 (Tex.Crim.App. 1987). Thus, a juror biased against the minimum punishment for the lesser offense of murder may be subject to challenge for cause. Barrow v. State, 688 S.W.2d 860 (Tex.Crim.App. 1985). However, the juror may be challenged on this ground only if the punishment at issue may actually be applicable to the case. Thus, neither party may rely on a juror's inability to assess the minimum punishment for a lesser offense on sheer speculation that it may become implicated. Rogers V. State 774 S.W.2d 247 (Tex.Crim.App. 1989).
A prospective juror who would automatically answer a special issue in the affirmative
whenever a defendant is guilty of capital murder is not qualified. Banda v. State, 890 S.W.2d
53 (Tex. Cr. App. 1994), cert. denied 115 S.Ct. 2253 (1995). During the voir dire process,
counsel who seeks to disqualify a prospective juror often attempts to phrase questions in such a manner to have the juror state he would automatically answer "yes't to one or more of
the special issues. See attachment No.2.
V. THE SPECIAL ISSUES (Art. 37.071, C.C.P.)
The jury must first decide whether the State proved beyond a reasonable doubt that:
A. There is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
If the jury was permitted to convict the defendant of capital murder as a party or conspirator the jury must decide as well, whether the state proved beyond a reasonable doubt that:
B. The defendant actually caused the death of the deceased or did not actually cause the death of the deceased, but intended to kill the deceased or another or anticipated that a human life would be taken.
Two jury instructions must be given by the court on how to answer those two issues:
1. Members of the jury need not agree on what particular evidence supports a negative answer to these issues;
2. Consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that mitigates against the imposition of the death penalty.
If ten or more jurors answered the future dangerousness and/or the parties special issue "no" the court must sentence the defendant to life in prison. Otherwise, the jury is confronted with the last special issue:
C. Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.
In connection with the last chance special issue the jury instruction must read:
1. You need not agree on what particular evidence supports an affirmative response, and;
2. You shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness.
Remember that the trial court has discretion to admit any evidence deemed relevant at the sentencing phase, unless it was unconstitutionally obtained or inadmissible under another law in the state.
VI. TIME LIMITS -
The court has the same right to limit the time spent on examining jurors as it does in noncapital cases. Bovd v. State 811 S.W.2d 105 (Tex.Crim.App. 1991), 112 S.Ct. 448 (1992) [45 minute time limit per juror not per se impermissible].
Counsel should strenuously object to any time limits proposed by the court in your individual voir dire. The statement that "open-ended" or "no-time limit" voir dire might lengthen the process is nonsense. See McCarter V. State, 837 S.W.2d 117 C(Tex.Cr.App. 1992).
In Etheridge V. State, 903 S.W.2d 1, the Court of Criminal Appeals set forth a three part test on this issue:
A. Whether defense counsel attempted to prolong the voir dire;
B. Whether questions counsel was not permitted to ask were proper; and
C. Whether the time limit prevented counsel from asking proper questions.
To preserve objections to an unreasonable time limit you must (a) obtain an adverse ruling
on a request for additional time; (b) make a bill of exception for each proper question; (c) exhaust all peremptory challenges; (d) obtain an adverse ruling on your request for additional peremptories and (e) identify an objectionable member of the jury against whom you would have used the extra strike. Jd.,at9-10.
VII. CHALLENGES FOR CAUSE POST PENRY) (Art. 35.16 (a)(9)(1O),(c)(2))
A. Future Dangerousness
The facts of the offense can be legally sufficient to prove the future dangerousness issue, but a juror is qualified if he believes that the crime alone can never establish that the defendant is a continuing threat to society. Garrett v. State, 851 S.W.2d 859-60 (Tex.Cr.App. 193). However, Garrett does not apply to a juror who would require the state to prove a specific aggravating circumstance that is not required by law, such as requiring the state to prove that the defendant would engage in "future murders." Drew V. State, 743 S.W.2d207, 211 (Tex.Crim.App. 1987).
A juror is subject to a challenge for cause if he would answer "yes" when there is a "possibility" as opposed to the statutory required term of "probability" that the defendant would commit criminal acts of violence. Patrick V. State, 906 S.W.2d 481 (Tex. Cr. App. 1995). The word "probability" does not have a statutory definition. However, when the Court of Criminal Appeals reviews the sufficiency of the evidence of future dangerousness, it defines a "probability" as "more than a bare chance". Ellason V. State, 815 S.W.2d 656, 659 (Tex. Cr. App. 1991).
"Criminal acts of violence" does not have a definition by statute either. Once again the courts and the legislature want jurors to apply a commonly understood meaning of the term. Note that it does not say "threatened violence." However, our Court has held that proof of nonviolent offenses can be used to prove that the defendant will commit criminal acts of violence because the defendant's criminal behavior may escalate in the future. Willis v. State, 785 S.W.2d 378, 387 (Tex. Cr. App. 1990).
Despite the U.S. Supreme Court's conclusion that the term "continuing threat" is a crucial term in this special issue, there is no statutory definition. In Jackson v. State, 823 S.W.2d 18, 25 (Tex. Cr. App. 1990) our Court of Criminal Appeals held that the jury has discretion in determining how long the defendant's violent conduct must persist.
Often in voir dire, defense counsel uses the phrases "ongoing", "constant" or "habitually" in an attempt to rehabilitate jurors.
The term "society" triggers a lot of debate. Of course, there is no statutory definition. Does "society" mean free-world society, prison or jail society, all of society. Our court has stated that it means all of society including the prison society. Jones v. State, 843 S.W.2d 487, 495 (Tex. Cr. App. 1992).
B. Parole
A jury is likely to speculate about parole despite our court's current rulings that stand for the proposition that a juror put the possibility of parole "completely out of his mind" when deciding whether he would constitute a continuing threat to society. Smith v. State, 898 S.W.2d 838, 880 (Tex. Cr. App. 1995).
Always use the term "confinement for life" when contrasting it to the death penalty. If the juror cannot follow the Court's instruction to disregard the applicability of parole, challenge under Art. 35.1 6(c)(2).
NOTE: Our legislature is dealing with this issue, as this is written, regarding informing the jury of the forty (40) year flat time, as well as life without parole.
C. The Parties Special Issue
By law, a jury can answer the parties special issue "yes" when the defendant actually
"anticipated that a human life would be taken" by his accomplice. See Penal Code Section 7.02(b)
and Lawton V. State, 913 S.W.2d 542 (Tex. Cr. App. 1995).
However, the word "anticipated"1 is not statutorily defined. Counsel should feel free to be creative
and use this term to your advantage.
D. The Mitigating Special Issue.
There always exists mitigating evidence. It is only limited by counsel's imagination.
The obvious evidence is:
1. Mental retardation (Hopefully new law makes this a non-issue).
2. Low IQ
3. Poor parental guidance and upbringing
4. Lack of parents
5. Child abuse
6. Drug and alcohol abuse
7. Cooperation with authorities
8. Good school history (including conduct)
9. Bad school history (lack of interest by officials)
10. Church activities
11. Extracurricular school activities
The list can go on and on.
The trial court has no discretion to exclude constitutionally relevant mitigating evidence. Skipper V. South Carolina 476 U.S. (1986); Kemp V. State, 876 S.W.2d 289, 307 (Tex. Cr. App. 1992). See also. Tex. R. Crim. Evid. 402 and 403.
Article I, § 10 of the Texas Constitution gives counsel wide latitude to "properly question prospective jurors during voir dire in order to effectively exercise peremptory challenges or to establish a predicate for a challenge for cause." & Parte McKay, 819 S.W.2d 478, 483 (Tex. Cr. App. 1990). Always quote this article when posing objections or urging argument.
Questions, therefore, about "anticipated" facts are proper to uncover potential bias or prejudice. So ask if a certain fact were proven can you be fair and impartial? This is proper. Nunflo V. State, 808 S.W.2d 482,483 (Tex. Cr. App. 1991). However, it is improper to ask a juror to make a commitment about what his verdict would be or how he would resolve any issue if certain facts are proven. Maddux V. State, 862 S.W.2d 590, 592 (Tex. Cr. App. 1993).
VII. OTHER CONCERNS
Do not forget your Batson challenges and Sixth Amendment claims to prohibit the systematic under representation of any cognizable groups in the community. See also Art. 19.06 C.C.P. regarding grand jurors.
IX. CONCLUSION: REASON V. EMOTION
Emotions will run high in capital cases. It is the nature of the beast and offers fuel to these cases. Both sides inevitably will attempt to reach the jurors with emotional claims. Jurors obviously, will be emotional as they seek to decide your client's fate. The desire to punish is steeped in emotions, especially anger. Acknowledging that emotion is already deeply at work in moral decision making can help the capital litigator focus on the necessary investigation, research, and vocabulary required to give the jurors the courage to render an unpopular verdict.
ATTACHMENT NO.1
SAMPLE JURY QUESTIONNMRE
INSTRUCTIONS FOR JUROR
This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be substantially shortened. Please answer the following questions as completely and truthfully as possible. The information contained within the questionnaire will become part of the Court's permanent record. During the questioning by the court and the attorneys, you will be given an opportunity to explain or expand any answers, if necessary.
Because this questionnaire is part of the jury selection process, the questions must be answered by you under penalty of perjury and you should fill out this questionnaire by yourself without consulting any other person.
If you wish to make further comments regarding any of your answers, please use the Explanation Sheet at the back of your questionnaire to do so.
If you do not understand a question, please write "I do not understand" and the question will be explained to you in Court. If you feel uncomfortable answering any questions on your questionnaire, please write "PRIVATE" next to the question(s) and this matter will be taken up privately with the Judge and the attorneys.
The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge.
PLEASE REALIZE THERE ARE NO RIGHT OR WRONG ANSWERS - JUST HONEST ONES.
Preliminary Instruction
Although neither side of the case is permitted to tell you their version of the facts of this case, both the prosecution and the defense have agreed to reveal the following information to see if you know or have heard about this case: This is a case involving a charge of capital murder of Norma Odom and Alma Solis on October 15th, 1997, in Fort Worth, Tarrant County, Texas. The Defendant in this case is James Wesley Odom
There has been media coverage about this case. If chosen as a juror, you will take an oath that requires you to return a verdict, whatever that verdict is, on the basis of the evidence that you hear in the courtroom and not from some outside source. There is nothing wrong with a prospective juror having heard of this case.
JUROR OUESTIONNAIRE JUROR NUMBER______
YOUR ANSWERS WILL BE USED SOLELY IN THE SELECTION OF A JURY AND FOR NO OTHER PURPOSE
I Juror Name: Age:
2. Place of birth:
3. Where else have you lived and when did you live there?
4. Do you read, write, speak and/or understand the English language?
5. What is your race or ethnic background?
6. Do you own or rent your home?
7. Are you: __ married __ years _ living with someone _ divorced and remarried __ separated __ Widowed __ single
8. Are you: __ employed __ student __ retired __ unemployed __ homemaker
9. If unemployed, retired, homemaker or student, answer the following for your last job.
a. Where do you/did you work?
b. Job title? How long?
c. Do you hire fire or supervise others?
d. Describe your job responsibilities:
e. What do you enjoy the most and least about your job?
f. What kind of jobs have you held in the past?
10. If married or sharing a household with someone (other than a child), is he/she:
__ employed __ student __ retired __ unemployed ___homemaker
11. If your spouse or the person with whom you share your household is not currently employed (and is not a child),
answer the questions for his/'her last job.
a. Where does he/she work? How long?
b. Job title? How long?
c. Does he/she hire, fire or supervise others? d. Describe his 'her job responsibilities:
e. What kind of jobs have you held in the past?
12. Mow far did you go in school?
13. If you attended college, vocational or technical school, what was your:
a. Major subject? __________ Degrees you hold?
b. Name and location of school?
c. What do you consider to be your most important or meaningfu1 informal learning experience?
d. Have you taken any course in law, law enforcement, criminology, African-American history, philosophy, religion or theology?
14. If your spouse or the person with whom you share your household attended college, vocational or technical school, what was his/her:
a. Major subject? _________________ Degrees he/she holds?
b. Name and location of school?
15. Have you ever served in the military?
a. What branch? Your highest rank held?
b. Did you enlist or were you drafted? Re-enlisted?
c. Where were you stationed?
d. Were you ever in combat?
If yes, were you ever required to take a human life?
e. What medals, honors or commendations did you receive?
f. Have you ever participated in a court martial?
g. Were you ever involved in any way with military law enforcement, court martial’s or investigations?
If yes, describe your involvement:
16. Children Step Children Grandchildren
Sex Age Occupation Sex Age Occupation Sex Age Occupation
17. Parents/Step-Parents Brothers/Sisters
Sex Age Education Occupation Sex Age Education Occupation
18. Have you, any family member or friend ever run for any public or political office? If yes, please describe:
19. What is your political affiliation?
20. Are you a conservative, moderate or liberal?
21. Have you ever donated any time, money or services to any political campaign or issue? If yes, please describe:
22. What is your religious affiliation, if any?
23. How often do you attend services? __ more than once a week __ every week __ occasional __ rarely __ never
24. What is the fundamental teaching of your religion?
25. What influence has religion had in your life?
26. Describe your religious beliefs or philosophy:
27. Have you ever had a different religious affiliation? . If yes, what religion?
28. What activities, if any, other than attendance, are you involved with for your church, temple or religious organization?
29. Are you presently or have you ever been a member of any societies, unions, professional association, civic clubs,
fraternities, sororities, or other organizations or groups?
a. Which ones?
b. Have you ever served as an officer?
c. What group(s) or organization(s) and what position(s)?
30. What are your hobbies, and/or spare time activities?
31. Do you watch any religious programs on television? If yes, which program(s) and how often do you watch these programs:
32. Are there any religious leaders that you feel are wrong, negative or improper? Please explain:
33. Are there any religious leaders or programs on television or radio that you feel are wrong, negative or improper? Please explain:
34. Please complete the charts below:
Television Radio
Favorite Program Favorite Station Hours Spent Favorite Program Favorite Station Hours Spent
Newspapers Magazine Books
Name How often Name How Often Author Type of Book
35. What were the last three books you read?
36. What is your main source of news?
37. Have you, family members or friends ever been employed by, or connected with, any law enforcement agency? (This includes police, sheriff, FBI, CIA, IRS, U.S. Marshall, Highway Patrol, Drug Enforcement Administration, State Attorney, State Prisons or County Jails, Attorney General, Family Services, United States Attorney, Immigration and Naturalization Service, Probation Office, State or Federal Courthouse, or any other agency)? ___ yes ___ no. Please specify below. Yourself Family Members Friends
Agency Position Date(s) Agency Position Date(s) Agency Position Date(s)
38. Name two or three people that you know or have heard of that you respect the most:
39. Please list your favorite famous person(s) or public figures, living or dead:
40. Please list the one person you feel most influenced your life and why:
41. Would you characterize yourself as a leader or follower?
42. How would your close friends and relatives describe you?
43. Have you ever had a bumper sticker on your car? ___ yes ___ no. If yes, what did the bumper sticker say? 44. Have you, your spouse, family member or friends ever used the services of any state or federal agency and/or District Attorney's Office or U.S.
Attorney's Office? Please specify below. Agency Position Date(s) Agency Position Date(s) Agency Position Date(s)
45. Have you, any family member or friends ever been a regular court observer? If yes, in what capacity?
46. Have you ever attended any course, seminar, lecture or demonstration connected with any law enforcement agency? Please explain:
47. Do you belong or associate with any groups which have crime prevention or law enforcement as a goal? Please explain:
48. Have you, any family member or friends, ever volunteered your services to any law enforcement agency? Please explain:
49. Do you know any lawyers, district attorneys or judges? Who?
50. Have you ever hired a lawyer for any reason? What was the reason(s) for hiring a lawyer?
51. Have you ever had a bad experience with a lawyer? Please explain:
52. Have you, a family member or friend ever worked for a criminal defense attorney? Who?:
53. Have you, any family members or friends ever filed a police report? Please explain:
54. Have you, any family members or friends ever called the police? Please explain:
55. Have you, or anyone close to you ever been interviewed by the police or any other law enforcement agency? Please explain:
56. Have you, any family members or friends ever had a pleasant experience involving law enforcement? Please explain:
57. Have you, any family members or friends ever had an unpleasant experience involving law enforcement? Please explain:
58. What Texas criminal cases have you followed in the media? Why did you follow the case(s)?
59. Have you, any family members or friends ever been a victim of any crime? Please explain:
60. Have you ever witnessed any violence (other than on T.V.)? Please explain:
61. If you, any family members or friends have been a victim of any crime, was anyone charged with the offense against you? If yes, was that person prosecuted in court and what was the result?
62. Have you, any family members or friends ever been a witness in a civil or criminal case, or any other legal hearing? If yes, what was the nature of the case?
63. Have you, any family members or friends ever been charged, arrested, indicted or convicted of any criminal offense? lf yes, what was the nature of the case? 64. Do you now own (or have you ever owned) any weapons? If yes, what type of weapon(s) and what was the reason for
having the weapon(s)?
65. Have you ever fired a gun? Please explain: 66. Have you ever had a bad experience with any type of weapon? Please explain:
67. Do you know anyone who has been shot or killed? Please explain:
68. Have you suffered a sudden or traumatic loss of a family member or close friend? How has this loss affected you?
69. Has anyone ever sued you or a family member? __ yes __ no. If yes, what was the nature of the case?
70. Have you ever served as a juror? __ yes __ no. How many times?
Case #1: What type of case? __ civil __ criminal Did you reach a verdict? Were you a foreperson?
Did you feel you had all of the information you needed to reach a verdict?
How would you feel if you later learned that you, as a juror, did not have all of the information ,and the new information might have caused you to return a different verdict?
Case #2: What type of case? __ civil __ criminal Did you reach a verdict? Were you a foreperson?
Did you feel you had all of the information you needed to reach a verdict?
How would you feel if you later learned that you, as a juror, did not have all of the information ,and the new information might have caused you to return a different verdict?
71. Have you ever served on a Grand Jury? Please give dates and details:
72. Have you ever appeared before a Grand Jury? Please give dates and details:
73. Regarding your jury service: (circle the letter(s) which apply to you):
a. I can tell pretty easily when a person is telling a lie.
b. When I make up my mind I rarely change it.
c. I can frequently be influenced by the opinion of others.
d. I always follow my own ideas rather than do what others expect of me.
74. Have you ever been to court before? Please give details:
75. Have you or anyone you know ever testified? For each time you have appeared, please give dates and details:
76. Have you, a family member or friend ever been discriminated against for any reason (i.e., age, gender, race, religion, etc.)? Please explain:
77. Have you, a family member or any friend ever had a bad experience with someone who was black?. Please explain:
78. In your opinion, how are blacks treated in America today?
79. Some people feel that blacks are more violent than other racial groups. What is your opinion?
80. Some people feel that most blacks are morally inferior to other racial groups due to their background and upbringing. What is your opinion?
81. In your opinion, what are the three (3) most important problems with law and order today?
82. What is the principal cause of crime in America?
83. How serious a problem is crime in your neighborhood?
84. What steps have you taken to protect yourself?
85. Are there enough law enforcement officials to handle the crime in your neighborhood?
86. What, in your opinion, should or could be done about the crime problem?
87. Have you or any member of your family ever belonged to, or contributed money or time to any neighborhood watch, crime stoppers, victims for victims, Mothers against drunk drivers, students against drunk drivers or other related programs? Which group(s)?
88. What is the first thing that comes to your mind when you think of:
Defense Attorneys:
Prosecutors:
89. Please tell us your reaction to each of the following statements:
a. If a person is brought to trial on murder charges, that person is probably guilty.
__ Agree strongly __ Disagree Strongly __ No Opinion
__ Agree __ Disagree __ Don't Know
Please explain your answer:
b. A defendant is innocent unless proven guilty beyond a reasonable doubt:
__ Agree strongly __ Disagree Strongly __ No Opinion
__ Agree __ Disagree __ Don't Know
Please explain your answer:
c. It is the job of the jury to solve the crime.
__ Agree strongly __ Disagree Strongly __ No Opinion
__ Agree __ Disagree __ Don't Know
Please explain your answer:
The individual in this case is accused of capital murder. If; and only if, the state proves their case beyond a reasonable doubt as to the defendant,
the jury will then decide punishment There is no way of knowing whether the jury will even find the defendant guilty, but the law requires
that you answer certain questions regarding your thoughts and feelings on the death penalty.
90. Describe your views on the death penalty:
91. Have you ever held a different view on the death penalty? __ yes __ no. If yes, what was your prior view and why did you change it?
92. Which of the following best describes your view of the death penalty:
___ Absolutely appropriate in every case where someone has been killed;
___ Generally appropriate with very few exceptions:
___ Appropriate in some cases, inappropriate in most cases;
___Generally opposed with very few exceptions;
___ Absolutely opposed in every possible case.
Please explain your answer:
93. What is the best argument in favor of the death penalty?
94. What is the best argument in opposition of the death penalty?
95. Should the death penalty apply to someone who did not do the actual killing? __ yes __ no. Why?
96. Describe your feelings about plea bargaining in general:
97. Describe your feelings about the State plea bargaining with a person who commits murder:
98. What are some reasons why a convicted killer would agree to testify against other people?
99. How truthful, reliable or dependable is such testimony?
100. The Constitution says an accused citizen does not have to testify on his or her own behalf. How do you feel about this constitutional privilege?
101. What is the condition of your hearing? _______________ Your eye sight?
102. Do you have any health problems which could affect your ability to serve on this jury? __ yes __ no. Please explain:
103. Do you take any prescription medication of any kind? __ yes __ no. Please explain:
104. Are you now suffering or have you suffered from a medical problem or long term disability?
If yes, please explain:
105. Is there any reason why you would not want to serve as a juror in this case? Please explain:
106. Is there anything going on in your life or at work that would prevent you from giving this case your full attention? Please explain:
107. Is there anything you would like to discuss privately with the court? Please explain:
108. Is there anything else we should know about you? Please explain:
I hereby state that all the answers given in this juror questionnaire are true, correct, and complete to the best of my knowledge.
ATTACHMENT NO.2
VOIR DIRE OUTLINE
STANDARD VOIR DIRE OUTLINE
THE STATE OF TEXAS
vs.
I. INTRODUCTION
A. Uninteresting, tedious, time consuming - Confess longer than Prosecutors
B. To be as thorough as possible to see that an innocent man is not convicted - little bit of system dies - do you think every accused is entitled to that?
C. Important - Two Reasons
I. To accused - to get to know how you feel - 12 most qualified to sit in judgment
2. To jurors - time to ask questions - not sure about - not comfortable
D. Absolute candor
1. For me, for the accused, for yourself, and for the system. We are all officers of court and have equal duty to you, the law and our clients.
2. If you feel it, tell me - I need to know - not fair to start any other way.
E. Twelve open minds - If prosecutor would tell the truth.
II. DO YOU KNOW? (Your questionnaire should already cover this - so follow up)
A. Witness(s)?
B. Judge?
C. District Attorney's Staff?
D. Law Enforcement Officers?
1. Close friend(s)?
2. Family members?
E. Know anyone else on jury panel?
III. PRE - TRIAL PUBLICITY
A. Do you acknowledge influence of media
B. Knowledge of media coverage
C. Discussion of case with others
D. Hearing of opinions of others
E. Your opinions (see ait 35.16 (a) (10) for possible challenge)
IV. WHAT DID YOUR CLIENT DO?
A. Presumption of Innocence
I. 6~ grade civics, lip service, hard to apply
2. It is actual proof of innocence
3. At this time your duty to believe my client when he says that he is not guilty
4. What do you think of that?
5. This is not a new concept only for my client
B. Just because a person is charged with a crime, it is no evidence of his guilt
I. No witness before Grand Jury
2. Traffic ticket
C. Government decides to charge and the Government must prove every element beyond a reasonable doubt.
1. No one has passed on whether Government can prove his guilt beyond a reasonable doubt - Not even the Grand Jury
D. Accused does not have to bring you any evidence
E. Hold strong to the presumption of innocence until both sides are through - argument - charge
F. Just because the accused is so unfortunate to be charged - sitting here is no evidence of his guilt
G. Ever accused of something you didn't do? Remember how you felt - Accuse someone else? Remember how you felt. Do you believe a person can be accused when they are really not guilty? Do you believe that police ever arrest innocent people?
H. If you had to vote right now, do you have any feelings as to guilt or innocence at this moment?
V. PRIOR JURY EXPERIENCE (Your questionnaire should cover this)
A. Preponderance v.s.. Reasonable Doubt
I. Preponderance - Civil cases
2. Substantial evidence - Adm. Law Cases -job on line
3. Clear and convincing - Family court - child custody
4. Reasonable doubt, Higher than previous three - Applies where life is at stake
B. Did you reach verdict in prior service?
C. Foreman?
D. Grand Jury?
VI. VICTIM OF CRIME (see questionnaire)
A. Complainant
B. If a person is wrongfull6 accused should system be strong enough to find him not guilty
VII. REASONABLE DOUBT
A. Proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs
B. Could be Reasonable Doubt for you and not for someone else
C. Basic standard in all criminal cases from traffic ticket with fine only to sending a man to the penitentiary
1. In a traffic ticket case, it might be sufficient to convict on the opinion of a police officer alone, BUT
2. Where a citizen has been accused and could go to the penitentiary, you might want more
D. Require the state to bring you all the evidence that might tend to show what really happened on the day in question.
E. You might want and you are entitled to:
1. Consistent and reliable, unquestionable testimony
2. Evidence to corroborate what witnesses say
3. Physical evidence recovered
4. Physical evidence connected to the accused on trial
F. Possibilities are endless, but you decide whether or not the prosecution has removed any and all Reasonable Doubt
G. 100% of the elements
1. Doubt as to certain facts might cause reasonable doubt as to an element
H. Vote your own conscience - not as a team
1. Not as articulate as others
I. Require cold hard unquestionable facts
J. Look at Lack of Evidence as well in determining Reasonable Doubt.
VIII. JURY FUNCTION
A. Judge of facts - or lack of facts
B. Based on what you hear from witness stand. Is it sufficient?
C. Decide whether or not the prosecution proved it
D. Not anyone's fault if evidence is not sufficient to convict
E. Judge of law. Court will not require you to take an oath to follow a law you do not believe in.
IX. DISCUSS LAW
A. Prosecutor went over elements - not every homicide is a murder.
B. Defensive charges
X. CREDIBILITY OF WITNESS
A. Not a question of who proved their side of the case
B. Would you require the accused to bring you any evidence showing he is not guilty before you could acquit him?
C. How many of you have been accused of doing something you didn't do? Many times it would be very difficult to prove that you didn't do something.
D. Prosecution has a duty to prove it and remove any and all reasonable doubts from you minds
XI. CREDIBILITY OF WITNESS
A. Conflicts, blue socks v.s.. black socks
B. Weight to be given their testimony
C. Everyday life
D. Clear, consistent, reliable and supported by evidence
E. Sales pitch or chips fall where they may
XII. PUNISHMENT
A. Bifurcated Trial - two phases
B. Application for probation
C. 5 - 99 years, life, fine
D. Consider full range of punishment
E. Consider probation
XIII. FOLLOW UP
A. Presumption of Innocence
I. Hold strong until you are convinced beyond any reasonable doubt - WAIT
2. Even if you think there is a possibility or probability that the accused is guilty, will you vote "Not Guilty" if you have a reasonable doubt?
3. Won't feel badly about not doing what the State of Texas wants if you have a doubt?
4. Will require the State to prove 100% of the elements, and prove beyond a reasonable doubt that it was not done in self-defense.
5. If State of Texas only proves 990/,, you will find the accused "Not Guilty?"
6. Do you believe that a person can be charged and not guilty?
B. Failure to Testify
I. Defendant not required to offer any evidence
2. Not a question of who proved what
C. Vote Your Own Conscience
I. Make friends, etc.
2. Require cold hard unquestionable facts
3. Not conjecture, guess work, speculation or innuendo
4. Do not supply evidence if the evidence is not there or creates a reasonable doubt. Vote "Not Guilty" and not feel badly that you did not
do what the State wanted you to do.
5. Do not guess a man into the penitentiary
XIV DEFENSIVE ISSUES
A. Self Defense (if applicable)
1 Can you conceive of circumstances where you believe that a person is justified in killing anther human being if that person believes that he is in immediate danger of being seriously injured or killed by the attacker?
2. Do you have any adverse feelings against a person who might be willing to use a gun to protect himself?
3. Do you understand that our plea here is not guilty and that we will ask you to acquit______by reason of justifiable homicide? That is ______________ does not deny that he caused the death of ________ but his defense is that the killing was one that the law justifies, namely that it was a homicide committed in self defense.
4. Do you think you could sit on this type of jury? And if the facts justified it, vote "Not Guilty" by reason of self defense?
5. Do you own firearms?
6. Have you had any experience with firearms or weapons?
XV POSSIBLE CHALLENGE AREAS
A. Police Officer Testimony
1. Officers in courtroom
B. Race
C. Probation
XVI OTHER AREAS TO EXPLORE
A. Lifestyle of Defendant
B. Drug use
C. Alcohol use
D. Accomplices
VOIR DIRE REHABILITATION OUESTIONS
I. REHABILITATION REGARDING DEATH PENALTY
A. OATH
JUDGE.. uphold law
DA...enforce law
Your oath.to render true answers according to the law (Court's instructions) and the evidence, so help you God.
(I) LAW + (2) EVIDENCE
Law recognizes that people have their own beliefs and ideas. Law states that because a person has such beliefs he is not prevented from participating as juror.
It simply asks that he be willing to set aside his or her personal feelings about certain things listen to the sworn evidence, take law fr6m the court which he is
instructed to follow, and render a true verdict according to his oath.
B. IT'S OK TO BE AGAINST THE DEATH PENALTY
C. IT'S OK TO HESITATE IN VOTING IN SUCH FASHION AS DEATH PENALTY COULD RESULT. OK TO AGONIZE BEFORE VOTING FOR DEATH.
D. BOTTOM LINE IS TO BE HONEST WITH YOURSELF AND WITH THE JUDGE IN ANSWERING Q'S
IF YES, FINE
IF NO, FINE
E. You wouldn't ignore the Court's instructions and you oath and automatically vote to ensure the DP would not result regardless of the facts and the evidence.
Remember oath "...to render true answers..."
1. Wouldn't lie to yourself. Wouldn't consciously distort facts.
2. Wouldn't lie to the Judge
F. Ever read cases in newspaper where Death Penalty was appropriate.
G. Jury function is not to actually impose Death Penalty
H. Jury function is to give true answers to questions based on the law and evidence and render "yes" answers only if proven beyond a reasonable doubt.
I. May safeguards... DEATH PENALTY NOT IMPOSED ARBITRARILY
1. Only in special circumstances (CAPITAL MURDER SITUATE).
2. Intentional conduct.
3. Beyond a Reasonable Doubt in Guilt/lnnocence
4. Punishment questions
5. Beyond a Reasonable Doubt for Punishment questions to get "yes".
6. If any mitigating circumstances that tends towards life... can vote "yes".
7. This system of safeguard ensures that DP is not handed out arbitrarily, but only in those special cases. specials incidents. and special individuals
after each and every safeguard is meticulously satisfied.
8. 1 find "not" to the punishment questions then "no" to Death Penalty.
9. Law contemplates possibility that jury unable to answer Q's... then law determines what happens.
J. Surely ,you would not answer "no to special issue even if you believed Beyond a Reasonable Doubt that answer was
II. REHABILITATION Q's RE PROBATION AND LOWER R OF P
A. Legislature envisions may fact situations under which homicide could occur Legislature envisions many various personal relationships surroundings the
occurrence of any homicide.
B. Article 38.36 C.C.P. Perrmits evidence as to all circumstances surroundings the homicide, previous relationships between the accused and the deceased,
and all relevant facts going to show the condition of the mind of the accused.
· prior threats
· sz of parties
· friction
· mutual combat (not self- defense)
C. Law of parties...maybe person is guilty as a party but less responsible and shouldn't be punished as severely.
D. Individualized sentencing:
Only certain persons
1. Characters
2. No crime record of felony conviction...not a repeat offender
3. Type of person who can rehab himself outside of pen
4. Must fluid tyoe of offense that warranted 5-10 years.
5. Can consider it and then reject it
E. Probation permits the defendant to serve a sentence outside the penitentiary under special rules and restrictions imposed by the Court including jail time
F. If the defendant fails to abide by any of these rules then probations will be revoked...even on the last day of the probated sentence.
G. Read 42.12 C.C.P. conditions
H. The law only asks that a person be fair and keep an open mind considering the same, the law does not require that he give it".
DISQUALIFICATION QUESTIONS
I. DISQUALIFICATION OUESTIONS REGARDING FUTURE DANGEROUSNESS
I. Before called upon to answer questions would have found defendant guilty beyond a reasonable doubt of not just one, but two felony acts (Murder are Felony) or (murder for remuneration).
2. Would have found beyond a reasonable doubt that this type of person who killed another with a conscious objective (set out to do) and desire (want to do).
3. Isn't it logical, after having found these things two things that a probability would exist that this person would commit crimes or acts of violence that constitute continued threat to society?
4. Naturally follow that answer is "yes"
5. Wouldn't it seem to be fairly certain?
6. Wouldn't it seem to be automatic?
II. DISQUALIFICATION QUESTIONS REGARDING DEATH PENALTY (REVERSE WITHERSPOON)
1. Your belief in the death penalty appears to be very strong.
2. Is this something you have given a great deal of thought to?
3. Do you feel like whenever a same person has intentionally murdered another person in course of committing another felony, is the only appropriate punishment would be for this person to pay for that life with their life (eye for eye).
4. Hard to change your mind regarding that?
5. 1 take it that your feeling regarding the death penalty might or would influence your decision in determining guilt or innocence.
6. Would your feelings regarding the death penalty somehow affect or influence your decision in determining punishment?
III. DISOUALIFICATION OUESTIONS REGARDING CONFESSIONS
1. Confession may be necessarv tool of law enforcement.
2. Can you see where that might be useful and in fact convincing evidence.
3. May be onlv link to particular defendant...can't prove without it. He walks.
4. Many legal/procedural requirements must be met before jury can hear it
5. Jury may receive instruction to disregard if one of steps me. (Jury decides if that fact exists).
6. When onlv link, might you be a little more inclined to construe facts so that confession could be considered.
IV. DISOUALIFCATION QUESTIONS REGARDING PROBATION
1. Ever know anybody on probation?
2. What do you think about probation as a sentence generally?
3. A. Found voluntarily beyond a reasonable doubt
B. Found intentionally beyond a reasonable doubt
C. Found without legal excuse
D. Found without legal justification (i.e. not self defense)
E. Caused the death of another living. breathing. human being (while committing another felony) or (for remuneration).
F. Knowing Judge can't choose to not follow recommendation of probation by jury.
G. Knowing that the defendant will walk out back of courtroom with you.
H. Do you consider yourself a law abiding person?
I. Would you agree that probation is not much punishment for intentional murder or murdering someone for money.
4. Can you fairly consider it with a view towards giving it?
5. Can you envision set of circumstances where probation is appropriate in such a homicide?
6. De you think probation might be an appropriate sentence in some other type of case, but maybe not for murder?
V. LOCKING DOWN OUESTIONS
I. Regarding of how open minded we all want to be, you have indicated that __________________________________
2. You're probably wondering why does Mr. Daniel keep asking me this, I've told him how I feel.
3. I take it that essentially sums up your feeling and position.
4. I understand that to be your bottom line, am I correct?
5. That's how you feel regardless of whether Mr. Prosecutor asks you?
6. That's how you feel regardless of whether the Judge asks you?
7. The law does not require a person to serve if there are certain aspects of the law that you don't agree with and as a result thereof cannot follow.
8. Is that the kind of law that you just can't agree with and follow?
Copy and paste HTML from Appendix-b here.
Return to top
C: Innocents on Texas Death Row?
http://www.deathpenaltyinfo.org/article.php?scid=6&did=111#Released
Andrew Mitchell Texas Conviction 1981 Released 1993; returned to prison and then re-released 1999
Mitchell was awarded $40,000 from Smith County, Texas for withholding evidence at his trial which led to his death sentence in 1981. He spent 13 years on death row before the Texas Court of Criminal Appeals threw out his conviction. Mitchell pleaded guilty to conspiracy to commit murder and was given a 31 year sentence. (Dallas Morning News, 1/ 19/99) He was then released to a halfway house in early 1999 after being given credit for time served.
Kerry Max Cook Texas Conviction 1978 Released Nov. 1997 Concluded 1999
Cook was originally convicted of killing Linda Jo Edwards in 1978. In 1988, he came within 11 days of execution, when the U.S. Supreme Court ordered the Texas Court to review its decision. Cook's conviction was overturned in 1991. He was re-tried in 1992, but the trial ended in a hung jury. In 1993, a state district judge ruled that prosecutors had engaged in systematic misconduct, surpressing key evidence. In 1994, Cook was tried again, and this time found guilty and again sentenced to death. On Nov. 6, 1996, the Texas Court of Criminal Appeals reversed his conviction, saying that "prosecutorial and police misconduct has tainted this entire matter from the outset." The court ruled that key testimony from the 1994 trial could not be used in any further prosecution. Prior to the start of his fourth trial in February, 1999, Cook pleaded no contest to a reduced murder charge and was released. He continued to maintain his complete innocence, but accepted the deal to avoid the possibility of another wrongful conviction. Recent DNA tests from the victim matched that of an ex-boyfriend, and not that of Cook. This tended to contradict testimony from the ex-boyfriend.
Henry Lee Lucas Texas Conviction 1984 Commuted to Life 1998
Lucas originally confessed to the murder of an unnamed hitchhiker in Texas in 1979. He also confessed to hundreds of other murders including the murder of Jimmy Hoffa and his fourth grade teacher, who is still alive. Most of his confessions have proved false. Two investigations by successive Attorneys General in Texas have concluded that he almost certainly did not commit the murder for which he faced an execution date of June 30, 1998. Gov. George Bush commuted his sentence to life upon recommendation of the Board of Pardons and Paroles in June, 1998.
David Spence Texas Conviction 1984 Executed 1997
Spence was charged with murdering three teenagers in 1982. He was allegedly hired by a convenience store owner to kill another girl, and killed these victims by mistake. The convenience store owner, Muneer Deeb, was originally convicted and sentenced to death, but then was acquitted at a re-trial. The police lieutenant who supervised the investigation of Spence, Marvin Horton, later concluded: "I do not think David Spence committed this crime." Ramon Salinas, the homicide detective who actually conducted the investigation, said: "My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved." No physical evidence connected Spence to the crime. The case against Spence was pursued by a zealous narcotics cop who relied on testimony of prison inmates who were granted favors in return for testimony.
Gary Graham Texas Convicted 1981 Executed 2000
On June 23, 2000, Gary Graham was executed in Texas, despite claims that he was innocent. Graham was 17 when he was charged with the 1981 robbery and shooting of Bobby Lambert outside a Houston supermarket. He was convicted primarily on the testimony of one witness, Bernadine Skillern, who said she saw the killer's face for a few seconds through her car windshield, from a distance of 30 -40 feet away. Two other witnesses, both who worked at the grocery store and said they got a good look at the assailant, said Graham was not the killer but were never interviewed by Graham's court appointed attorney, Ronald Mock, and were not called to testify at trial. Three of the jurors who voted to convict Graham signed affidavits saying they would have voted differently had all of the evidence been available.
Cameron Willingham Texas Convicted 1992 Executed 2004
After examining evidence from the capital prosecution of Cameron Willingham, four national arson experts have concluded that the original investigation of Willingham's case was flawed and it is possible the fire was accidental. The independent investigation, reported by the Chicago Tribune, found that prosecutors and arson investigators used arson theories that have since been repudiated by scientific advances. Willingham was executed earlier this year in Texas despite his consistent claims of innocence. He was convicted of murdering his three children in a 1991 house fire.
Arson expert Gerald Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." Former Louisiana State University fire instructor Kendall Ryland added, "[It] made me sick to think this guy was executed based on this investigation.... They executed this guy and they've just got no idea - at least not scientifically - if he set the fire, or if the fire was even intentionally set."
Willingham was convicted of capital murder after arson investigators concluded that 20 indicators of arson led them to believe that an accelerent had been used to set three separate fires inside his home. Among the only other evidence presented by prosecutors during the the trial was testimony from jailhouse snitch Johnny E. Webb, a drug addict on psychiatric medication, who claimed Willingham had confessed to him in the county jail.
Some of the jurors who convicted Willingham were troubled when told of the new case review. Juror Dorinda Brokofsky asked, "Did anybody know about this prior to his execution? Now I will have to live with this for the rest of my life. Maybe this man was innocent." Prior to the execution, Willingham's defense attorneys presented expert testimony regarding the new arson investigation to the state's highest court, as well as to Texas Governor Rick Perry. No relief was granted and Willingham was executed on February 17, 2004. Coincidentally, less than a year after Willingham's execution, arson evidence presented by some of the same experts who had appealed for relief in Willingham's case helped free Ernest Willis from Texas's death row. The experts noted that the evidence in the Willingham case was nearly identical to the evidence used to exonerate Willis. (Chicago Tribune, December 9, 2004). Read the Chicago Tribune article. See Innocence Case Descriptions regarding Ernest Willis' case.
Nov. 21, 2005, 4:34PM
THE CANTU CASE: DEATH AND DOUBT
Did Texas execute an innocent man?
Eyewitness says he felt influenced by police to ID the teen as the killer
By LISE OLSEN
Copyright 2005, Houston Chronicle
RESOURCES
SPECIAL SERIES
Carlos Antonio Rios: Houston Chronicle
DEATH AND DOUBT — A Chronicle series by Lise Olsen on the conviction and execution of Ruben Cantu.
* Did Texas execute an innocent man? - Eyewitness says he felt influenced by police to ID the teen as as the killer.
* Wounded officer key to sentence - Attempts to discredit star witness failed at trial.
* Vow of silence blamed for ultimate penalty - Executed man's co-defendant says years of guilty have led him to try to clear his friend's name.
* Brother speaks up - Man says if he'd been asked to testify, he might have saved Cantu.
Texas executed its fifth teenage offender at 22 minutes after midnight on Aug. 24, 1993, after his last request for bubble gum had been refused and his final claim of innocence had been forever silenced.
Ruben Cantu, 17 at the time of his crime, had no previous convictions, but a San Antonio prosecutor had branded him a violent thief, gang member and murderer who ruthlessly shot one victim nine times with a rifle before emptying at least nine more rounds into the only eyewitness — a man who barely survived to testify.
Four days after a Bexar County jury delivered its verdict, Cantu wrote this letter to the residents of San Antonio: "My name is Ruben M. Cantu and I am only 18 years old. I got to the 9th grade and I have been framed in a capital murder case."
A dozen years after his execution, a Houston Chronicle investigation suggests that Cantu, a former special-ed student who grew up in a tough neighborhood on the south side of San Antonio, was likely telling the truth.
Cantu's long-silent co-defendant, David Garza, just 15 when the two boys allegedly committed a murder-robbery together, has signed a sworn affidavit saying he allowed his friend to be falsely accused, though Cantu wasn't with him the night of the killing.
And the lone eyewitness, the man who survived the shooting, has recanted. He told the Chronicle he's sure that the person who shot him was not Cantu, but he felt pressured by police to identify the boy as the killer. Juan Moreno, an illegal immigrant at the time of the shooting, said his damning in-court identification was based on his fear of authorities and police interest in Cantu.
Cantu "was innocent. It was a case of an innocent person being killed," Moreno said.
These men, whose lives are united by nothing more than a single act of violence on Nov. 8, 1984, both claim that Texas executed the wrong man. Both believe they could have saved Cantu if they had had the courage to tell the truth before he died at 26.
Full series at: http://www.chron.com/disp/story.mpl/front/3472872.html
Return to top
D: Photos of Texas Death Row
http://www.documentaryphotographs.com/death00.htm
Return to top
E: Texas Prison Health Care
'Deadly inadequacies' plague inmate wards Gaps in evaluating care let some mistakes go unnoticed
First of four parts
By Mike Ward and Bill Bishop
American-Statesman Staff
Sunday, December 16, 2001
BEAUMONT - After prison officials allowed Cadarell Freeman to fester in his jail cell with ulcers eating through his throat and his feet swelling to the size of hiking boots, after yanking Freeman on and off prescriptions so often that he grew resistant to advanced HIV medications and dependent on a wheelchair, after a nurse asked Freeman if he would donate his organs when he died, which, she implied, would be soon, and after prison officials called Freeman's mother at 4 a.m. to say her son "probably wouldn't make it through the morning" - only after all of that did Cadarell Freeman suffer the last-ditch indignity of the Texas prison system.
A bus driver told Freeman that if he wanted out, he'd have to crawl.
This is a story about people you don't like.
They've passed bad checks, stolen cars, robbed banks and worse. They don't eat their salad with the proper fork, and they don't make donations to the United Way. They are in jail, most of them, for doing wrong.
Almost all of the 134,000 people in Texas prisons will be set free one day. Eighty percent of those sent to prison in 2000 will serve less than 10 years. They'll move to Lockhart or Travis Heights, Round Rock or Circle C. They'll come out changed by the time they spent in prison. The question their future neighbors might ask is whether these changes will be for the better or for the worse.
Texas has proved it's good at building prisons. The state is less successful at caring for the people it puts in these new lockups. Some convicts come out of the state's 105 prisons sicker than they went in. Too frequently, they take strains of drug-resistant HIV into what inmates call the free world.
How bad is health care in Texas prisons? It's better than it once was, good enough that the federal courts found that medical care in Texas prisons was no longer "deliberately indifferent" to inmates' medical needs.
Still, a federal judge wrote in 1999 that he had heard evidence of "significant, even deadly, inadequacies" in the medicine practiced on inmates. Prisoners have been left to die in their cells. They've starved in infirmaries, languished in their own feces before dying. Care in the prisons is so bad, inmates say, that they join experimental drug trials at a university hospital in Galveston to avoid the care offered in jailhouse infirmaries.
It's impossible to know whether these instances of poor care are exceptional or common. The state has made it that way. The Texas Legislature in 1993 created a little kingdom in the prisons.
Instead of providing care itself, the prison system ceded that job to the University of Texas Medical Branch in Galveston and Texas Tech University in Lubbock. It has become a $297 million-a-year business, paid for with public money but immune from any meaningful public scrutiny - a system built for secrecy, if not for care. "Being a prison doctor is an honorable profession, despite what people may think because of the way it has been portrayed in the media - a special bond develops between the medical providers and the patients," said Dr. Ben G. Raimer, a vice president at UTMB. "As with any large system, you can find some problems. But they have not been malicious, and not because people did not care. . . . There have been some bumps along the way, but we have an excellent system that is continuing to improve."
Cadarell Freeman was to leave prison in September 2000. He had walked into prison, but now he was deathly sick. He had lost 60 pounds. The inmate's legs were so weak that he slumped in a wheelchair at the Stiles Unit near Beaumont as he waited for the bus that would ferry him to Huntsville and his freedom.
The vehicle came. From his chair, Freeman eyed the steps into the bus. The driver told Freeman that if he wanted out, he could crawl.
A nurse eventually helped the dispirited inmate onto the bus. The next day, a guard pushed him through the front door of the prison in Huntsville, where Freeman's mother was waiting. He was free.
Luckily, his mother brought a wheelchair. The state kept the one Freeman had been issued by the prison's medical system.
* * *
Lester Allen was a cross-dressing bank robber in Houston who bedeviled police with his array of high-fashion Escada outfits and getaways ingeniously accomplished on city buses. Police caught the lady bandit in 1991, and the courts sent Allen away for 10 years.
What Allen didn't know when he first entered the Texas prison system, but soon learned, is that no matter what a judge orders, any term in Texas can be a life sentence.
The man who taught Allen this lesson was Harold Fields. Allen knew Fields from Dallas, where both had lived. They met again at the Ramsey Unit in Brazoria County, one of Texas' oldest prisons.
"I watched Harold die slowly," Allen recalled recently. "If you're positive with HIV or AIDS and you can't get the treatment you know you need, you can't get help, you can't get anyone to care, you feel like you're hanging on at the end of a rope, and after a while your hands get tired and you just let go."
Before 1993, the prison system hired its own doctors, bought its own medicine and ran its own clinics. The Legislature took that job away from the prison system and gave it to the University of Texas Medical Branch in Galveston and Texas Tech. The reasons were to save money and to appease a federal court judge.
UTMB provides care in the eastern portion of the state, where 80 percent of the inmates are housed; Texas Tech works with the mostly newer prisons to the west. The new system saves money. But there are few public checks on the quality of care the universities provide - and, until recently, no penalties if the universities practice poor medicine.
Four hundred fourteen people died of natural causes last year inTexas prisons. UTMB or Texas Tech doctors review the medical chartsfor each dead inmate and rate the care as proper or improper.
Chart reviews are one way to monitor the quality of medical care. Florida publishes the results of chart reviews on the Internet as one public accounting of health care in its prisons.
In Texas, the state's chart reviews of deceased inmates are secret by law - but events in 1996 were an exception.
Prisoners at the Stiles Unit that year began filing large numbers of complaints about medical care at the facility. Many of the system's sickest inmates were housed at Stiles. Prison system doctors, relegated by then to administrative functions, took notice and began an emergency audit of the medical charts of the inmates who had died that year. The doctors reviewed 24 charts and concluded that 16 dead inmates had received improper care.
One was Lester Allen's friend, Harold Fields, who had been transferred from Ramsey to Stiles a few days before he died.
Another was Alexander Oris, who "starved to death in infirmary,"according to the Texas Department of Criminal Justice's internal review.
Michael Anderson vomited for three days and had no bowel movements for six days before he died and "appeared to have been neglected in his cell."
Another man died a few days after he had been found covered in feces. Another was "left to die." Another "appears to have suffered from neglect."
UTMB reacted to the Stiles audit. The university shifted people to other units or jobs. Doctors were dispatched from Galveston to provide "minifellowships" and "retraining" for Stiles medical personnel, according to testimony from a university health care official.
The Legislature took no public notice of the Stiles study, nor did the committee of prison system and university officials given the job of overseeing prison health. When reporters asked about the report, however, UTMB officials said the system had been much improved.
But had it?
In 1998 an attorney representing Texas convicts in a long-running federal lawsuit over prison conditions hired corrections system doctors from other states to conduct another review of prison deaths.
In the 1998 study, these doctors came to conclusions strikingly similar to those in the prison system's own study two years earlier at Stiles.
They examined 59 deaths from across the state and found that 20 of the inmates received poor or very poor care. Sixteen of those 20 deaths were either "preventable" or "possibly preventable."
Ophelia Rangel was left "lying in feces, menstrual fluid and urine" until she died of "severe dehydration," the doctors concluded.
Robert Lee Brown died of a stroke and a heart attack after prison health officials ordered medicine to treat hypertension that caused a "precipitous lowering of blood pressure." The federal Food and Drug Administration had warned against this method of treating hypertension in 1985.
Three weeks before Arthur Hines died of heart failure, his medical chart said he "appears in good health." The prisoner repeatedly had complained of chest pains and shortness of breath, but he received "no particular treatment" in the weeks preceding his death, doctors hired in the court case testified.
In court, the state disputed those conclusions by finding fault with the way the study was conducted. Dr. David Smith, a Texas Tech official and then-chairman of the committee in charge of prison health care, testified that the studies were "not recognized as an effective way of analyzing data." He also revealed that in the case of Rangel, a physician and two nurses were fired.
Dr. Jason Calhoun, who headed UTMB's prison medicine program, responded to the '98 study in court documents, saying the university had improved its care.
"Although hindsight will always identify specific cases where different treatment could have produced a different outcome," Calhoun said, "UTMB has made significant progress since 1994 in areas of access to care, evaluation and treatment at the unit level."
If these accounts of prison health care are harsh, they are mild compared with the way things were a generation ago.
In the 1970s, convicts acted as doctors. They pulled teeth, stitched lacerations and dished out pills. In 1974, Texas employed just one doctor for 40,000 prisoners in a brutal and unconstitutional system of health care largely run by prisoners.
By this year, prison medical care was much different and much better. The federal courts in the long-running case named for inmate David Ruiz found that the prison system's medical care was constitutional. Credit for these improvements was given to UTMB and Texas Tech.
Even so, U.S. District Judge William Wayne Justice warned that although prison health care in Texas may now be legal, it is still inadequate and "subpar." "As the law stands today," Justice wrote in 1999, "the standards permit inhumane treatment of inmates."
Cadarell Freeman and Lester Allen would agree.
To gain a sure handle on the quality of care in Texas prisons is impossible. Records are not kept or are kept secret. The Legislature has prevented even prison authorities from fully monitoring the quality of care the universities provide.
Prison officials boast that the clinics in each of the state's 105 prisons are inspected and licensed by national prison health-care agencies. But even prison system doctors question whether these inspections adequately measure the quality of medical care.
After all, in 1996, when two-thirds of the men who died at the Stiles Unit had "improper" care, according to the state audit, the prison clinic earned passing grades from a national accrediting organization. Moreover, even these accreditation reports are kept secret under state law .
The details that can be discovered about prison health care are blips on a radar screen, tracks in the snow. That's all there is, because Texas has gradually developed a prison health-care system that is largely impenetrable - not only to those outside the system, but to prison officials as well.
When information does emerge from this largely closed system, however, it often is disturbing:
* The Texas Department of Health closed a prison dialysis unit in 1997 after finding "serious deficiencies," according to a state auditor's report. Even after the unit was reopened, prisoners needing dialysis treatment in 1998 would find chairs still bloody from earlier patients.
* A 2000 study by two doctors at the University of Texas at San Antonio found that women and black inmates were prescribed more advanced, and more expensive, anti-psychotic drugs "less frequently than whites, implying that there may be bias in prescribing patterns in (Texas Department of Criminal Justice) Mental Health Services," according to a TDCJ analysis.
* A 1997 study by UTMB pharmacists found that prison doctors treating diabetes "generally do not follow the guideline recommendations, and clinical markers were not improved."
* As recently as March of this year, half of the prisoners discharged from clinics and prison hospitals had incomplete documentation, and one in every 10 required "emergency, acute care or readmission following discharge," according to a prison system report.
Convicts and prison employees complain of the same inadequacies: the poor care given at the units, as opposed to the excellent care they found at university hospitals; the messy dialysis units; the tendency of doctors at prison units to cancel or ignore orders issued by hospital specialists; the mix-ups in prescriptions; the checkups given seemingly without care or interest.
They also say, uniformly, that the two universities providing care have dramatically different results. Convicts well-traveled among Texas prisons say health care is better at West Texas units serviced by Texas Tech. That was also the conclusion reached by lawyers and doctors representing inmates in the federal Ruiz case.
"It was our belief based on the evidence that the most serious problems seemed to occur in the UTMB units as opposed to the Texas Tech units," said Donna Brorby, the San Francisco-based attorney who hired doctors to review the quality of medical care in Texas prisons. "We all agreed that Texas Tech did a better job."
Dr. John Robertson reviewed the medical charts of a sample of inmates who had died in Texas prisons. He agreed that "Texas Tech seemed to have less of a problem." Robertson, who is the medical director for the Alaska prison system, said recently that "based on our studies, I think the oversight and quality of care was better at Texas Tech than that provided by UTMB."
Because there is no independent agency monitoring the care given to Texas inmates, the universities are left to decide for themselves what care is proper. When prison system doctors found that two-thirds of the inmates who died at Stiles had received improper care, UTMB doctors reviewed each medical chart - and they arrived at starkly different findings.
Prison system doctors concluded that Paul McGhee had been "essentially left to die in the infirmary." A team of UTMB doctors looked at the same chart and wrote, "There does not seem to be any problem in the care of this patient."
Alexander Oris "starved to death in infirmary," prison system doctors wrote. UTMB found "no lapse of care."
Jimmy Jones "received very little care at Stiles" and "appears to have suffered from neglect," according to the prison doctors. UTMB found "no lapse in the standard of care given this patient."
Raimer, of UTMB, said this difference of opinion is sometimes inevitable. "You can sit three doctors down together and have them review a case and get three different opinions on what should have happened," Raimer said. "The diagnosis can be correct, the medication can be correct, the treatment can be correct and still you can have an outcome that you didn't want or didn't expect. That's medicine."
Where prison system doctors found 16 cases of improper care, UTMB doctors had questions about seven, and labeled none as improper care.
* * *
Lester Allen had gradually morphed from a college student to thebandit caught in a wig, black stockings and pumps after he robbed a Texas Commerce Bank on Houston's Main Street. In the steel halls of Texas' prisons, he changed again.
In 1995, Allen recalled, "I went to Stiles. I talked to the chaplain there and started working in the hospice program. I felt it was something I was called to do.
"It changed my life - not the sentence, but what happened while I was in there. I saw lots of people dying, lots of people who were very sick, lots of people who needed help but weren't getting any. It was a horrible place.
"I cared for people who were dying and who almost no one cared about. I saw the stages of my eventual death. It changed my outlook on life. I made my amends to God and myself."
At Stiles, Allen was known as an angel of mercy. As a hospice aide, he smuggled medication and food to sick prisoners. He brought them blankets in winter and ice in July, in defiance of guards' orders. Allen forged "hall passes" so that he could continue his work when he would otherwise be confined to his cell.
Lester Allen tried to give the care and the hope he was unable to provide his friend Harold Fields.
"At Stiles," prison system doctors wrote in 1996, "(Fields) was not assessed and managed properly although fevers, nausea, vomiting, weight loss and weakness were documented."
UTMB doctors reviewed Fields' chart and wrote: "Standard of care met."
* * *
Bedsores ripened on Cadarell Freeman's backside. He contracted infections, fevers and diarrhea. An ulcer erupted in his throat that made it impossible to eat. His stomach churned.
When Freeman stayed on the drugs prescribed by doctors at UTMB's prison hospital in Galveston, he gained weight, got better. But a prescription in the Texas prison system is often just a piece of paper. Sometimes, Freeman said, the sacks of medicine he brought from Galveston were confiscated and not returned. Some weeks, according to Freeman's files, the inmate received only three of the 15 drugs he was supposed to be taking. For days at a time he would receive no medication at all.
A note written on Freeman's chart while the inmate was at the hospital in Galveston said the inmate was so "frustrated at his inability to get meds as prescribed that he is threatening to commit suicide to get to new unit."
A doctor from the Galveston hospital wrote in December 1997 that Freeman "has had unacceptable lapses" in therapy, but that the inmate had been convinced "to continue to take meds despite obstacles at unit level."
An internal prison system report in 1999 found there were "multiple dosing errors on virtually every medication order" Freeman received. When Freeman complained, the report said, prison unit health-care workers "tended to roll their eyes and sigh at the mention of the offender's name."
On drugs and then off again, Freeman began to have seizures; he was confined first to a wheelchair and then to his bunk. He lay watching as his disturbed cellmate plucked blades from safety razors, taped the metal strips to his fingers and, with bloodied hands, dubbed himself horror-flick villain Freddy Krueger.
In his diary, Freeman wrote on March 20, 1999: "This can't be a medical facility. This is a death camp. I hurt so bad."
The same internal prison system report on Freeman's case stated, "There is further room for concern when treatment is given or withheld by a provider without actively putting hands, or even eyes, on the patient."
In November that same year, guards found Freeman collapsed in his cell. He was rushed by ambulance to Galveston. Soon, a nurse asked if Freeman would donate his brain and other organs for scientific research. Freeman's mother received a call saying her son was near death.
After several weeks of care in Galveston, Freeman was taken back to Stiles. For a short while his health improved.
Then his drugs were withheld again. His health worsened. Freeman's pain bred hyperbole. In his diary he wrote, "I wonder did the Jews Hitler punished suffer this bad?"
Freeman's question is easy to answer. There is no holocaust in the Texas prison system.
There is, however, a paradox.
Freeman received some of the best health care in the world, and some of the worst. There were prison system workers who took up Freeman's case with a dogged, free-world ferocity - and there were the medical personnel who wouldn't lay hands on the sick inmate, or even look at him.
For Cadarell Freeman, however, the bad overtook the good. He left prison and took with him into the free world limp legs, a check for $50 and a resistance to several HIV drugs.
You may contact Mike Ward at mward@statesman.com or (512) 445-1712 and Bill Bishop at bbishop@statesman.com or (512) 445-3634.
Return to top
F: Execution of Juvenile Offenders
Almost two-thirds of the current-era executions of juvenile offenders occurred in Texas, with no other United States’ jurisdiction or other country in the world actively involved in this practice.
Listen to http://www.npr.org/templates/story/story.php?storyId=4105217
Talk of the Nation, October 12, 2004 · The United States is one of just a few countries in which teenage murderers can face the death penalty. This week, the Supreme Court hears arguments that could change that. We discuss the age limit on capital punishment.
Peter Rubin, law professor at Georgetown University
Jeffrey Fagan, professor, Department of Sociomedical Sciences, School of Public Health, Columbia University. Author of new study on changing standards for the juvenile death penalty.
Dr. Jay Giedd, chief of Brain Imaging in the Child Psychiatry Branch of the National Institute of Mental Health
Juveniles Executed by the State of Texas
Name Execution Race & Sex- Offender/Victim Age at crime Age at Execution
Charles Rumbaugh 09-11-1985 WM/WM 17 28
Jay Pinkerton 05-15-1986 WM/WF, WF 17 24
Johnny Garrett 02-11-1992 WM/WF 17 28
Curtis Harris 07-01-1993 BM/WM 17 31
Ruben Cantu 08-24-1993 LM/LM 17 26
Joseph John Cannon 04-22-1998 WM/WF 17 38
Robert A. Carter 05-18-1998 BM/LF 17 34
Glen C. McGinnis 01-25-2000 BM/WF 17 27
Gary L. Graham 06-22-2000 BM/WM 17 36
Gerald L. Mitchell 10-22-2001 BM/WM 17 33
Napolean Beazley 05-28-2002 BM/WM 17 25
TJ Jones 08-08-2002 BM/WM 17 25
Toronto Patterson 08-28-2002 BM/BF 17 24
Extensive Juvenile Executions Information available at: http://www.law.onu.edu/faculty/streib/documents/juvdeath.pdf
Return to top
G: Incarceration and Crime Trends in Texas
Center on Juvenile and Criminal Justice: Texas Tough?: An Analysis of Incarceration and Crime Trends in The Lone Star State http://www.cjcj.org/pubs/texas/texas.html
Return to top
H: Capital Punishment: Cruel and Unusual?
Texas watching lethal injection challenges
Austin American-Statesman February 25, 2006
State officials plan no policy shifts after doubts cast on same method used in other states.
By postponing a killer's execution this week, California became the 2nd state in as many months to pause over the issue of whether lethal injection is a painless passing or whether it masks a painful and potentially unconstitutional death.
The legal debate is expected to heat up in coming months as California and Florida examine their execution procedures while the U.S. Supreme Court considers whether to take up the issue.
Meanwhile, officials in Texas, the state with the nation's busiest death chamber, say they have no plans to change a thing.
"We're watching the situation, but there has not yet been any court ruling that has impacted Texas," said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, which has executed four convicts this year and has an additional 15 queued up for lethal injection into June.
In all, almost 850 people - including 359 in Texas - have been executed across the United States since the death penalty was reinstated 3 decades ago.
The latest debate intensified when a California federal judge ordered the state's 3-drug execution procedure modified because of concerns that it might cause a painful death, which could be considered cruel and unusual punishment, something that is prohibited by the U.S. Constitution. Texas uses the same 3-drug method: a sedative, a muscle relaxant and a heart-stopper.
California opted to use a lethal dose of a barbiturate but then stopped Michael Morales' execution when anesthesiologists refused to participate because of ethical issues.
Death penalty foes have cheered the development, insisting that it is a first step to getting the issue before the U.S. Supreme Court.
In recent months, the high court halted two executions in Florida over the question of whether death-row convicts can lodge 11th-hour appeals on whether lethal injection is cruel and unusual. Based on that, Florida Gov. Jeb Bush earlier this month announced that he will not sign any more execution warrants until the pending legal questions are resolved.
Although death penalty advocates generally have branded the development as just another in a long string of challenges that will fail, some legal scholars and supporters say the challenges could succeed.
The reason: Oklahoma was the 1st state to adopt the lethal injection protocol in 1977, and Texas and most other states copied it "without much scientific backup for what they were adopting," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in California, an organization that has defended capital punishment in several major cases.
"It may be that an amended protocol is adopted and upheld," Scheidegger said.
Death penalty opponents make much the same argument, citing a recent article in the British medical journal The Lancet saying that lethal injection, instead of being painless, may cause unnecessary suffering because enough anesthesia is not used.
Even before the Florida and California rulings, the issue had surfaced in Texas cases.
When Corpus Christi killer Jeff Doughtie, 39, was executed in August 2001, his last words were that he felt a burning sensation. Other convicts have unsuccessfully challenged the method of lethal injection in recent months in their final appeals, officials said.
Like other opponents, Dave Atwood, a founder of the Texas Coalition to Abolish the Death Penalty, said he was surprised by the California ruling after so many years of courts rejecting such challenges.
"I don't see that happening in Texas," he said, "because most of the judges would not rule that way."
Even so, Atwood said, the recent developments almost certainly will figure in the appeals of condemned convicts who face execution in coming months.
"They'll all be trying it," he said. "But I don't see anything changing unless the (U.S.) Supreme Court agrees."
Source: Austin American-Statesman
Execution objections on the rise
Associated Press February 26, 2006
The claim sounds straight out of a horror novel: A man, completely paralyzed but fully conscious, endures a searing pain throughout his body and suffocates because he can't take a breath.
To a dozen or so onlookers, he appears serene, asleep. They remain oblivious to his agony as he dies.
Thats the issue at the heart of a lawsuit in California that halted the execution of killer and rapist Michael Morales this week. It's the crux of similar lawsuits in North Carolina and 13 other states.
Lawyers contend that the lethal injection techniques in 37 of the 38 states with capital punishment, contrary to expectations and all outward appearances, give the condemned a torturous death. This, they say, violates the U.S. Constitutions ban on cruel and unusual punishment.
In the fight over capital punishment, "This seems to be the new front, which is attack the death penalty on the execution front," said Robeson County District Attorney Johnson Britt. Britt favors capital punishment.
"Every lawyer worth his salt is putting in a lethal injection challenge," said Richard Dieter, executive director of the Death Penalty Information Center. The center opposes capital punishment.
3 drugs are used in lethal injection executions. The 1st is sodium pentothal, a barbiturate. It puts the inmate to sleep.
The 2nd drug is pancuronium bromide, also called Pavulon. This paralyzes the inmate.
The final drug is potassium chloride. This drug is supposed to stop the heart.
The method is supposed to kill the inmate quickly and painlessly.
The system doesnt work as advertised, Jim Exum says in a federal lawsuit in North Carolina. Exum is a former chief justice of the N.C. Supreme Court. His lawsuit, on behalf of condemned inmates George Franklin Page and Kenneth Bernard Rouse, contends that the first drug, the sodium pentothal, wears off quickly, allowing the inmate to wake up.
At that point in the execution, the lawsuit says in its claims and in an affidavit from a doctor, the inmate is awake but unable to move because he has been paralyzed by the second drug.
The suit says the second drug stops him from drawing any breath because he cant get his respiratory muscles to respond.
Suffocation death
The lawsuit says that the 3rd drug, the potassium chloride, reacts with the nerve endings in the inmates veins and causes a burning as it spreads throughout his body. The suit contends that when administered intravenously, the drug is strong enough to stop the inmate from breathing but not strong enough to stop his heart.
The suit says the inmate dies of suffocation.
The process "can indeed be very painful and very terrifying," Exum said.
An affidavit for the state by a physician, Mark Dershwitz, disagrees with Exum's contention.
He says if the inmate woke up during the process there would be time, before he became totally paralyzed, to cry out or complain if he were suffering.
Based on the high dosage of the 1st drug, "There exists no more than a miniscule probability that the person could be conscious" during the execution, Dershwitz said.
Britt, the Robeson County prosecutor, watched the execution of murderer Henry Lee Hunt in 2003.
He doesn't think there was any pain for Hunt.
"The appearance was he just fell asleep," Britt said. "To me it appears that it was a very peaceful process. There was no grimacing of the face, no jerk, no convulsion-like movement. Nothing to indicate that there was any pain."
Exum said that after his suit was filed in 2004, North Carolina doubled the dosage of the drug that knocks the inmate out.
A federal judge in California responded to the issue by ordering in the Morales case that a doctor monitor whether the inmate needs more of the barbiturate to remain unconscious. Doctors refused to take part, citing their medical oaths not to harm a patient.
The judge said the state could kill the inmate with just an overdose of the barbiturate. But he also required medical professionals to take part. This method would have made the execution take 30 minutes or more, at least twice as long as the 3-drug method. And again, no medical personnel would take part.
The issue could surface in North Carolina next month.
Patrick Moody is scheduled to die March 17 for the 1994 murder of Donnie Robbins in Davidson County.
Lines are to be inserted into each of Moody's arms by technicians and the drugs administered by people hidden by curtains.
One of his lawyers, Charlotte Blake, said she is more optimistic now that judges are paying attention to health issues.
"There's a renewed vigor," she said.
Source: Associated Press
Return to top
I: TCADP Death Penalty Fact Sheet www.tcadp/org/contents/TXDPFactSheet.pdf
Return to top
J: TCADP Newsletters http://tcadp.org/archive.php
Return to top
K: 152 People Killed by Gov. George Bush
1995 1996 1997 1998 1999 2000
Clifton Russell
Willie Ray Williams
Jeffrey Motley
Billy Conn Gardner
Samuel Hawkins
Noble Mays
Fletcher T. Mann
Ronald Allridge
John Fearance Jr.
Karl Hammond
Vernon Satterwhite
Carl Johnson Jr.
Harold Joe Lane
Bernard Amos
Hai Hai Vuong
Esequel Banda
James Briddle
Leo Jenkins
Ken Granviel
Joe Gonzales
Richard Brimage Jr.
John Barefield
David Lee Herman
David Spence
Billy Woods
Kenneth Gentry
Benjamin Boyle
Ernest Orville Baldree
Terry Washington
Anthony Ray Westley
Clifton Belyeu
Richard Drinkard
Clarence Lackey
Bruce Callins
Larry Wayne White
Robert Madden
Patrick Roberts
Kenneth Harris
Davis Losada
Dorsie Johnson
Earl Behringer
David Stoker
Eddie James Johnson
Irineo Montoya
Robert West Jr.
James C. Lee Davis
Jessel Turner
Benjamin Stone
John Cockrum
Dwight Adanandus
Ricky Lee Green
Kenneth Ransom
Aua Lauti
Aaron Lee Fuller
Michael Sharp
Charlie Lee Livingston
Michael Lockhart
Karla Faye Tucker
Steven Renfro
Jerry Lee Hogue
Joseph Cannon
Lesley Gosch
Frank McFarland
Robert A. Carter
Pedro Cruz Muniz
Clifford Boggs
Johnny Pyles
Leopoldo Narvaiz
Genaro Ruiz Camacho
Delbert Teague
David Castillo
Javier Cruz
Jonathan Nobles
Kenneth McDuff
Daniel Lee Corwin
Jeff Emery
James Meanes
John Glenn Moody
Troy Farris
Martin Vega
Jorge Cordova
Danny Lee Barber
Andrew Cantu
Norman Green
Charles Rector
Robert Excell White
Aaron C. Foust
Jose De La Cruz
Clydell Coleman
William Little
Joseph Stanley Faulder
Charles Daniel Tuttle
Tyrone Fuller
Ricky Blackmon
Charles Anthony Boyd
kenneth Dunn
James Earhart
Joe Trevino
Raymond J. Jones
Willis Barnes
William Price Davis
Richard Wayne Smith
Alvin Wayne Crane
Jerry McFadden
Domingo Cantu
Desmond Jennings
John Michael Lamb
Jose Gutierrez
David Long
James Beathard
Robert Atworth
Sammie Felder Jr.
Earl Heiselbetz, Jr.
Spencer Goodman
David Hicks
Larry Robison
Billy Hughes, Jr.
Glen McGinnis
James Moreland
Cornelius Goss
Betty Lou Beets
Odell Barnes Jr.
Ponchai Wilkerson
Timothy Gribble
Tom R. Jackson
William Kitchens
Michael McBride
James Richardson
Richard Foster
James Clayton
Robert Carter
Thomas Mason
John Burks
Paul Nuncio
Gary Graham
Jessy San Miguel
Orien Joiner
Juan Soria
Brian Roberson
Oliver Cruz
John Satterwhite
Richard Jones
David Gibbs
Jeff Caldwell
Ricky McGinn
Jeffrey Dillingham
Miguel Flores
Stacey Lawton
Garry Miller
Daniel Hittle
Claude Jones
Dec. 7, 2000
EXECUTIONS UNDER Gov. RICK PERRY
2001----17
2002----33
2003----24
2004----23
2005----19
Total---116 executions
Return to top
L: Mental Illness
Amnesty International Report on Mental Illness and the American Death Penalty
Return to top
M: TCADP Petitions
Abolition Petition Abolition Petition-Non Texan
Return to top
N: In the News...
Subject: Local community leader speaks out against the death penalty
Sunday, April 9th Letter to Editor, Corpus Christi Caller-Times
False solution
Texas has already carried out seven executions this year. Twelve more are planned through early August, making Texas the number one killing state in the Western Hemisphere.
Of these 19 executions, 17 are of black or Hispanic prisoners, showing how racist the Texas death penalty system is.
Texas politicians who support the death penalty often defend their position by saying that the death penalty is necessary for the "protection of society." Executions may satisfy cravings for vengeance, but they do not protect society. Study after study shows that the death penalty does not deter violent crime.
If politicians truly want to be tough on violent crime, they will acknowledge the overwhelming number of death row prisoners who have a very low IQ, who are mentally ill, who are addicted to drugs, or who were abused and ne- glected as children.
If politicians truly want to be tough on violent crime, they will acknowledge that mental health, family services and drug and alcohol rehabilitation programs are woefully inadequate, with overwhelming case loads, under-funded and under-staffed.
The death penalty is a false solution, and politicians know it.
JEANNE ADAMS
Return to top
2006 TCADP.org Page design by Anthelia Designs
