Articles Posted in Death Penalty & Postconviction Relief

religious-scene-1428390-m.jpgThe third definition is the Texas codification of the traditional common law concept of “felony murder.” It is unclear why the second and third definition were needed, as they are very similar and intending to cause serious bodily injury is usually felony aggravated assault. The legislature must have wanted to make sure it covered every ground, especially when seats on death row could be at stake. Nevertheless, the third definition requires that a person be committing any felony, from first degree drug distribution to state jail forgery of a financial instrument (such as a check), yes any felony qualifies. At common law, the felony murder rule, as it was harsh, was often limited to felonies “a fortiorti”, i.e. serious felonies such as robbery, arson, burglary and others clearly dangerous to human life. One of the harsh consequences of felony murder is that, under liability as a party to a crime, it often can be charged to any participant in the underlying felony, making one who had no intent of hurting or killing anyone criminally liable for acts of another that resulted in murder. The typical situation is a “robbery gone bad” in which one robber of three shoots the store clerk. All three are on the hook for capital murder. But, felony murder is now also used in DWI cases, in which the felony of DWI3rd is being committed by the driver who has been twice previously convicted, as they are also committing an act dangerous to human life, driving intoxicated, during the commission of the underlying felony of DWI3rd.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

O.J._Simpson_1990_·_DN-ST-91-03444_crop.JPEGCriminal news in Texas seems to revolve around murder. Once a week we pick up the newspaper and someone has shot or stabbed somebody for something. Murder as an offense tends to be “complicated” legally because of the many defenses, beginning with the required mental states and running the gauntlet down to what Percy Foreman called “misdemeanor murder” — the jury lets the defendant go because the sumbitch that died “deserved it.” Texas also recognizes “sudden passion” where in the old days murder was reduced from a capital punishment or life-in-prison-potential to simple “involuntary manslaughter.” A husband was understandably out of his mind when he caught his wife in bed with the milkman, shot one or both of them, but shouldn’t be guilty of “murder.” “Sudden passion” still exists, but now as a punishment mitigation issue which reduces the punishment range for murder to the standard manslaughter level.

Texas Penal Code 19.02(b) defines murder in three ways: “A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” The first is the modern equivalent of the common law definition of murder as causing the death of a person with malice aforethought. Malice does not necessarily have to be so aforethought anymore, but you still have to intentionally or knowingly cause the death of an individual. Thus, even pointing a gun and shooting someone is not enough under this definition, if it wasn’t proved to have been done with the intent or knowledge that it would cause the individual’s death.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

Kerry Bookin.jpgIn 1991, thirteen years after his original conviction and death sentence, the Supreme Court reversed his conviction due to illegal psychiatric testimony. Although a blatant violation of the right to remain silent and the right to counsel, the prosecution arranged for Mr. Cook to be interviewed by a State psychiatrist in the months following his arrest, the idea being that this psychiatrist would come in and testify that Mr. Cook was a continuing danger to society and needed to die. The second trial resulted in a hung jury. The prosecution tried Mr. Cook a third time and received a second death sentence in 1994, but this conviction was overturned in 1997.

In 1999, DNA from semen found on the victim’s clothing completely eliminated Mr. Cook as a possible assailant. Rather than admit their wrongs and dismiss the case in the interest of justice, prosecutors required Mr. Cook to plead “no contest” to the killing, which he did to get out of prison and avoid another trial. He is currently seeking a pardon from the State of Texas, which he certainly deserves. Above being innocent, Mr. Cook endured three trials, abhorrent prosecutorial misconduct, twenty odd years on death row and once coming within 11 days of execution. Justice and prosecution politics generally do not mix well together.

kerry book.jpgThe case of State of Texas v. Kerry Max Cook, the twenty year series of trials and appeals in which the State of Texas through the Smith County District Attorney’s Office (Tyler, TX), continually lied, knowingly presented perjured evidence, and did everything evil that rogue prosecutors are able to do, is a tale of one brave individual who survived it all and lives to tell about it today. Tried in 1978 and convicted on the false testimony of a jailhouse snitch, whose motive for testifying – a 2 year sentence in his own murder case – was withheld from the defense, who was personally coached by the prosecution into testifying to a detailed false confession, together with a false opinion of a state “expert” who claimed to be able to judge the age of fingerprints on a door, and the hiding of evidence by the prosecution of exculpatory evidence including evidence that Kerry Cook had been invited to the victim’s apartment three days earlier (which explained his fingerprints), were all part of an evil recipe to convict and kill a young boy for the sake of prosecution politics and statistics. Justice be damned.

I wish I could tell you the entire story, but instead I encourage you to read the story of Mr. Cook as only he can tell it, in his book Chasing Justice. It details the investigation and defense of his case, and the sordid details of life on death row as a young boy from East Texas. Mr. Cook vividly details being sexually assaulted in prison and life in Texas prisons in the late 70s and 80s. His appeal sat on the dockets of the Texas Court of Criminal Appeals (where death penalty appeals are directly sent to speed up the killing process), for eight years. Yes, eight years went by before his first appeal could be heard and he could proceed to the United States Supreme Court. Although the Dallas Morning News and other investigative journalists tracked down the “jailhouse snitch,” who admitted that his testimony was a total fabrication.

syringes_and_vial.jpg“Is your commitment to life as deep as your commitment to the truth?” This is the question I was forced to ask myself this past week as I worked through an exercise at the 2011 Death Penalty Seminar at Gerry Spence’s Trial Lawyers College. Truth and life seem to be pretty equally essential values, in my opinion, but as trial lawyers our commitment to the truth must be unquestionable – lest our case be exposed as unbelievable or even contrived. The credibility of our cases as criminal defense lawyers is the key ingredient for success, so we go overboard to sift through the evidence to find the emotional and physical truth of each case. We spend long hours with our clients to truly know and love them and as individuals. Must we also abhor the death penalty and all its inconsistencies and injustices so recently exposed?

A capital lawyer has the unique burden and duty to show that a defendant’s life is worth saving in every case. Period. The high-profile cases overturned in recently years are typically due to the capital defendant’s lawyer not doing the legwork (even basic legwork such as looking at readily available files), in order to tell the true story of how their client went from being a precious baby to becoming “the defendant.” What can cause such an injustice except for the lawyer not caring about his client’s life enough? If the image of him being strapped to the gurney and three doses of lethal drugs being injected into his veins (one to knock him out, one to stop the air, and one to stop the breathing), does not make you lose sleep at night and feel overburdened, one should probably not be doing capital defense. But must one be opposed to the death penalty in every case, or just in their own cases? Such are the deep questions that can only be answered in the heart.

How else are we to overcome some of the most gruesome facts to show that life in prison is a real punishment – even for the most unspeakable crimes? How can we truly connect with the client who committed such acts, and form a working relationship in order to fight through to a not guilty or a life sentence. The condemned are often persons for whom their lawyers made virtually no effort to connect with as individuals at any emotional level. If so, how could their story really be told to a jury of twelve people who stated they could impose the death penalty? And if their lawyer supports the death penalty, how can that lawyer fight his hardest against an institution and a result for which he supports in theory?

supreme court.jpgYou have the right to counsel of your choice. If you can afford it, you need to hire the best attorney for your case that you can. Under current economic conditions, many cannot afford the attorney they need and must petition the court for counsel. If indigent by standards set in Texas, you are entitled to a court appointed attorney (but cannot choose which specific attorney).

Courts have an awesome (sometimes life and death) responsibility to appoint lawyers in capital case dedicated to going the extra mile to ensure that the accused truly has the most able assistance of counsel possible. The Code of Criminal Procedures sets the minimum qualification for such counsel. Additionally, the 6th Amendment to the US Constitution guarantees ALL persons accused of a crime the right to effective assistance of counsel. But what does this mean? Surely someone simply standing or sitting (or sleeping) by the client as the prosecutor buries him is not enough. You don’t get a lawyer just to hold your hand while you plead guilty, or even one to do an OK job but miss key facts.

Courts have held that you are, at a minimum, entitled to a lawyer whose performance in your case is reasonable under prevailing professional norms (mainly established by the American Bar Association) and whose representation does not prejudice your case. However, appellate courts presume that a lawyer’s representation is reasonable, and that most choices made in the course of representation are “trial strategy.” Lawyers will oftentimes lie about their errors (or motives for committing them) in post-conviction challenges to protect their reputation at the expense of their client’s freedom or life. That is the reality.

Giffords.jpgWith the horrific news of the shooting of a United States Congresswoman and other innocent bystanders, many are asking whether and when her shooter will get the death penalty. The Federal Death penalty, although rarely carried out, is available for many types of crimes. As explained on the USDOJ website, these crimes generally include crimes in which “(1) the defendant is charged with a crime for which the death penalty is a legally authorized sanction, (2) the defendant intended or had a high degree of culpability with respect to the death of the victim, and (3) one or more aggravating factors specified in a statutory list are present in the case. The statutory aggravating factors include such factors as the commission of a killing in the course of another serious offense, the defendant’s having a prior criminal history involving serious violent offenses, the commission of a killing after substantial planning and premeditation, killing multiple victims, or endangering the lives of other persons (in addition to the person killed) in committing the crime. 18 U.S.C. 3591-93.(1)”
If US Representative Gabrielle Giffords does not survive, her shooter will be prosecuted under 18 U.S.C. 351 (murder of a member of Congress, an important executive official, or a Supreme Court Justice). However, since multiple federal employees were killed at the scene according to reports, if any were engaged in their duties (such as a congressional staffer assisting the representative in official business), the shooter can be death-penalty prosecuted under 18 U.S.C. 1114 (Protection of officers and employees of the United States). The general federal murder statute, 18. U.S.C. 1111, can also lead to the death penalty if the “death qualification factors” are proven.

Graves.jpgInnocent Texas death-row inmate Anthony Graves was released earlier this week from the Burleson County Jail. Mr. Graves was wrongly imprisoned for 18 years, most of it on death row, due to the horrendous behavior of dishonest and unethical prosecutors. As KHOU noted,
“The only evidence tying Graves to the killings was Carter’s testimony, and Carter recanted just before his 1998 execution. The 5th U.S. Circuit Court of Appeals in New Orleans overturned Graves’ conviction in 2006, ruling that prosecutors withheld evidence and elicited false testimony.”
Mr. Graves can take little comfort that he will get a pittance in compensation from the State of Texas for his time on death row due to suborning of perjury and hiding of evidence by those who swore an oath to “seek justice.” He does have a great civil rights claim under 42 U.S.C 1983 and 1985 for violation of civil rights and conspiracy to violate civil rights against those involved. Such claims cannot be brought until a criminal prosecution ends successfully for the defendant, so he is well within the statute of limitations. Hopefully those who prosecuted him are no longer lawyers, and certainly no longer criminal lawyers.

Willingham4.jpgTexan Cameron Todd Willingham was tried, convicted of killing his children and sentenced to death based on bogus arson junk science and a jailhouse snitch in 1992. The tragic death of Willingham’s children was made more tragic by the unnecessary killing of their father will little regard for due process, the rights of citizens accused, or ethics.

I thought the State’s position on this tragedy, including the kangaroo process of appointing a “forensic science commission” whose leader appears to be a State hack, reminded me of a Brittany Spears song. So without further ado, here it is:

[Sung by the State of Texas to Cameron Todd Willingham, to the tune of “Oops I Did It Again” by Brittany Spears]

prison.jpgHis first performance of self-mutilation not being enough, Sherman, Texas death row inmate Andre Thomas pulled out his last remaining eye and ate it. They say he said it tasted like fish.

This raised an interesting and academic question of the propriety of his future death, scheduled to be brought to you by the state of Texas. A Texas capital jury, after they find a person guilty of capital murder, are given the three special issues that the Supreme Court wants answered.

1) whether there exists a probability the defendant would commit criminal acts of violence that would constitute a “continuing threat to society”.