death penalty news—-TEXAS

March 20


Death penalty case that highlighted jury bias ends in plea deal—-'86
capital murder case that highlighted jury bias ends in plea deal

One of Dallas County's most notorious death penalty cases ended quietly
Wednesday after more than two decades when Thomas Joe Miller-El pleaded
guilty to capital murder and aggravated robbery in a deal that spares his
life but virtually assures that he will die in prison.

Thomas Joe Miller-El's conviction was overturned. State District Judge
John Creuzot sentenced Mr. Miller-El, 56, to life in prison on the capital
murder charge and 20 years on the aggravated robbery charge with the
sentences to be served consecutively. Mr. Miller-El waived his right to
appeal in exchange for prosecutors agreeing not to seek the death penalty.

Mr. Miller-El's well-documented case highlighted problems with jury
selection in Dallas County, which unfairly excluded minority jurists.
Although he was originally convicted and sentenced to death in 1986 for
the shooting death of a hotel clerk, the U.S. Supreme Court eventually
reversed the decision citing racial bias in his jury selection.

His attorney, Doug Parks, said Wednesday night that he believes much has
changed in the 2 decades since Mr. Miller-El's initial conviction. He said
jury selection has evolved since the days of longtime District Attorney
Henry Wade, who was in charge when Mr. Miller-El was convicted, and in the
subsequent terms of John Vance, Bill Hill and now, Craig Watkins, who is
the first 1ck elected DA in Texas.

"There's been change from Mr. Wade to Mr. Vance to Mr. Hill to our current
DA. There has been, over time, a change in attitude," Mr. Parks said. "The
attitude currently in the DA's office is not conducive to the tone that
existed back when Mr. Miller-El's case was tried."

Mr. Miller-El, who is black, was convicted and sentenced to death a month
before the Supreme Court handed down a landmark decision Batson vs.
Kentucky which eliminated the practice of racial discrimination in jury

That ruling, which holds to this day, cited statistics from a 1986 series
by The Dallas Morning News on discrimination in jury selection. The
statistics showed that in 100 randomly selected felony trials, 86 percent
of blacks eligible for jury duty were eliminated by prosecutors'
peremptory challenges. The News also examined the 15 capital murder cases
tried in Dallas County between 1980 and December 1986; prosecutors used
peremptory challenges to remove nine out of 10 qualified blacks.

The Supreme Court overturned Mr. Miller-El's conviction in 2005. A
petition on his behalf submitted to the high court alleged that Dallas
County prosecutors used peremptory challenges legal objections that allow
lawyers to dismiss prospective jurors without explanation to eliminate 10
of 11 qualified blacks from the jury panel.

His attorneys also noted in the petition that juror information cards
filled out by prospective jurors in Mr. Miller-El's trial did not provide
a blank for their race but that the "race and gender of every juror is
coded on each card, in the prosecutors' handwriting."

The lone black juror eventually seated on Mr. Miller-El's jury said he
thought Texas' death penalty was "too quick" and suggested that staking
defendants on ant beds and pouring honey on them was a more appropriate
punishment. A Hispanic juror and another of Filipino ancestry also
reportedly served on the jury.

Documents in Mr. Miller-El's case also described a 1969 memorandum written
by a senior Dallas County prosecutor, which advised: "You are not looking
for any member of a minority group which may subject him to oppression
they almost always empathize with the accused." The memo was used to train

A 1963 treatise by another Dallas County prosecutor recommended against
permitting "Jews, Negroes, Dagos and Mexicans or a member of any minority
race on a jury, no matter how rich or how well educated."

Mr. Miller-El's attorneys alleged to the Supreme Court that the "essential
content" of this advice remained in the training materials of Dallas
County prosecutors at least until 1980.

By pleading guilty, Mr. Miller-El admitted to the 1985 murder of Douglas
Walker, a 25-year-old Irving hotel clerk who was shot in the back after
being bound and gagged during a robbery. Another clerk, Donald Ray Hall,
was shot and permanently paralyzed from the chest down. He later
identified Mr. Miller-El as his assailant.

Police arrested Mr. Miller-El in Houston days after the robbery. After a
shootout in which Mr. Miller-El was wounded, Houston police recovered
several guns, including the automatic weapon believed to have killed Mr.

Mr. Miller-El's wife, Dorothy, received 2 life sentences for helping plan
the robbery. An appeals court reduced her prison time to 2 concurrent
15-year sentences. She was paroled in 1992 and couldn't be reached for

Mr. Walker's parents could not be reached for comment Wednesday evening.
They previously said Mr. Miller-El "should have been executed a long time

Mike Heiskell, a special prosecutor appointed because a current Dallas
County prosecutor formerly represented Mr. Miller-El, and Mr. Parks said
Wednesday that the plea bargain finally offers closure in a case that has
gone on for more than 20 years.

"It means he won't have a death sentence hanging over his head like he's
had for 20 years and 14 execution dates," Mr. Parks said. "It's hard to
say you feel good pleading a case out to life and 20. But we feel good
about this. I think it was a good result for the state and it was a good
result for Thomas."

Mr. Watkins could not be reached for comment Wednesday. However, before
his office was removed from the case, he had said that he intended to
retry Mr. Miller-El and seek the death penalty.

But Mr. Heiskell said Wednesday's plea bargain "was the most advantageous
way to end this case." The Fort Worth lawyer said he believed a jury would
have found Mr. Miller-El guilty, but with no significant disciplinary
problems in prison, Mr. Heiskell said he was unsure if jurors would have
returned another death sentence.

Mr. Miller-El's plea came on the same day the Supreme Court overturned
another case with problems similar to his. Snyder vs. Louisiana is a death
row case that raised issues about jury selection. In that case, according
to The Washington Post, the justices found that a prosecutor improperly
excluded blacks from a black defendant's jury. The court's 7-2 decision
will overturn the conviction of Allen Snyder, who has been on death row
after being convicted in 1996 of killing his estranged wife's boyfriend
and seriously wounding her.

"It's ironic that it happened today," Mr. Heiskell said. Both cases "will
serve the whole bar in realizing … to be mindful and extremely careful
in how a jury is selected."

Mr. Miller-El could not be reached for comment Wednesday. In a previous
interview, he said that he has no doubt that a different racial makeup of
the jury would have changed the outcome of his sentence. "My trial was set
up as a hate situation," he said. "The system was in denial."

(source: Dallas Morning News)


Prosecutors fear castle law's 'presumption' will allow real murderers to
go free

For many Texas legislators, last year's castle law seemed like a
no-brainer. Anyone breaking into your home, car or business poses a grave
threat; you should have the right to shoot first and ask questions later.

The new law has yet to see its day in court, but that day is coming.
Homicide cases that pivot upon it could emerge by the middle of this year.

Meanwhile, some prosecutors worry the law will cause more confusion than
clarity in the courtroom.

Worse, they fear it will let real murderers off the hook.

They are particularly concerned about a legal concept, called a
"presumption," used in the law by legislators who appear not to have
considered its potential consequences.

Prosecutors say it could force juries to "presume" it was necessary to
kill someone, even when other evidence casts that into serious doubt.

"We have some very good defense attorneys in Harris County, and they are
going to have an absolute field day with this," Harris County Assistant
District Attorney Bill Delmore warned a committee of legislators last

The castle law says a citizen is "presumed" to be acting reasonably if he
shoots someone he believes is trying to break into his occupied home,
business or car.

But what does the word "presumed" mean in a courtroom? If your actions are
"presumed" to be reasonable, does that mean they are reasonable?

Common sense says no.

Texas law, however, may now say yes.

"The existence of this presumption is so scary to prosecutors, that we
would prefer to see the bill not passed than passed in the present state
that we see it today," Mr. Delmore told legislators before the bill's

Jana McCown, an assistant district attorney for Williamson County, echoed
his concerns.

"The problem that I perceive is that this is not going to protect the
law-abiding citizens," she said. "It's going to protect the criminals."

More of a burden

To understand why prosecutors fear the presumption, you must first digest
as it appears lawmakers did not a brief legal history lesson.

In the past, presumptions have appeared in Texas criminal law only to help
prosecutors, because they bear the heavy burden of proof.

For example, if you assault someone wearing a police uniform, the law
presumes you knew that person was a police officer. A jury is allowed but
not forced to conclude you knowingly assaulted a public servant.

In 2005, however, the Legislature passed a gun law that contained a new
legal concept: a presumption that favored defendants. Because this concept
was unprecedented in Texas, the gun law adjusted the penal code to dictate
how a jury was to interpret it.

Sen. Jeff Wentworth authored the castle law that took effect Sept. 1.
Essentially, it said this: Unless prosecutors can disprove the basis for a
presumption that favors a defendant, jurors must treat that presumption as

The law's language caused so much confusion that legislators scrapped it
last year. But they didn't get rid of the section about how presumptions
must be dealt with in court.

Now comes the castle law. It contains a presumption that favors
defendants. For courts, this would be a complicated matter to begin with.
But even more problematic is that it must be interpreted under the terms
of the failed gun law.

"I think, not purposefully, but unaware of what they were doing, the folks
who passed the so-called castle doctrine used that same concept of a
defense presumption," said Shannon Edmonds, legislative director for the
Texas District and County Attorneys Association. "And now we're right back
where we were 2 years ago."

Reasonable or not

Speaking before legislators last year, Mr. Delmore described what the
castle law might do in a murder case.

Imagine a late-night fight outside a bar, he said. One man shoots another,
and all the witnesses scatter. Police arrive to find only a body full of
bullet holes in the parking lot.

Later, investigators track down a suspect.

"In these situations, the defendant will always have a reason in his mind
that he needed to shoot somebody," Mr. Delmore said. "Either someone
pulled a knife, or someone showed a gun, or someone was breaking into his

The jury may have little reason to believe that. Yet prosecutors may have
to prove beyond a reasonable doubt that the dead man had not been trying
to break into the car.

"It's going to require the state to sort of prove a negative, which is
very difficult to do," Mr. Edmonds later explained.

Some defense attorneys counter that this was always a prosecutor's burden.
They say the castle law's presumption merely highlights that

"Keep this in mind about what you're being told by prosecutors: They don't
like this; it's a limitation on their power," said Keith Hampton,
legislative director for the Texas Criminal Defense Lawyers Association.
"I think that they're muddying the waters a little bit here."

University of Texas law professor George Dix disagrees.

"Because I think it's using a presumption for a purpose it wasn't designed
to serve," he said. "I can see how it would create difficulties,
particularly of confusion."

In a criminal case, he said, confusion is a friend to the defendant.

It proved to be the hallmark of the failed gun law, created by former
state Rep. Terry Keel. The story of its demise could speak volumes about
problems on the way for self-defense cases.

It is a story that the castle law's creator admits to knowing little

"I wasn't involved in the Keel matter two years ago, and not aware that
the language caused any problem then or now," said the castle law's
author, Sen. Jeff Wentworth, R-San Antonio.

Mr. Keel's law attempted to clarify a previous law that allowed citizens
to carry guns in their cars while traveling without defining what
"traveling" was. He offered a set of conditions such as not being in a
gang under which a driver was "presumed" to be traveling.

The new gun law presented a conundrum. What if a driver met all the
conditions but clearly was not "traveling" in any normal sense of the
word? What if he was headed around the corner for a carton of milk?

Prosecutors were confused, frustrated and even outraged by the law until
legislators scrapped it.

"But now it's living on in a much more virulent form in the self-defense
law," Mr. Edmonds said.

Intent and effect

In a recent interview, the castle law's sponsor in the House, Rep. Joe
Driver, R-Garland, expressed little concern about whatever confusion it
may cause.

"Sometimes we do have to come back and tweak something just because we
didn't quite get it right," he said. "I mean, you're dealing with lawyers.
Holy cow that's what they do is argue."

Mr. Driver was asked whether he'd considered how courts would apply the
presumption language.

"You're talking about the one thing I have a hard time understanding," he
said. He suggested a reporter call the National Rifle Association, noting
that one of its lobbyists helped write the law.

The NRA lobbyist, Tara Mica, said placing a heavier burden of proof on
prosecutors was part of the law's intent.

"Any time you shift a burden in the criminal justice system one way or
another, the person whose job becomes more difficult is of course going to
complain," she said. "But we didn't write this law for the benefit of

Mr. Dix, however, said he believes the castle law's writers by using the
presumption language indeed may have hindered prosecutors in a way that
could help set real murderers free.

"I think you ought to know what you're doing if you're going to do it that
way," he said. "And I don't think these folks did."


Here are major provisions of Texas' castle law:

It presumes you are reasonable in using deadly force if someone illegally
and with force enters or is attempting to enter your occupied home, car
or workplace. You are not given this presumption if you provoked the
person or were engaged in a crime.

It removes your obligation to retreat if possible before using deadly
force if you are anywhere you have a right to be. The previous law obliged
you to retreat if a "reasonable person" would have, except in a situation
where someone unlawfully entered your home.

It gives you added protection from lawsuits by injured attackers or their
families. The previous law granted this protection if someone illegally
entered your home, but not in other situations.

(source: Dallas Morning News, Mar. 16)


Rodney Reed's lawyers tell appeals court that he deserves a new
trial—-Murdered woman's sister says the right man was convicted.

If a Bastrop County jury had heard all of the evidence in the 1998 trial
of Rodney Reed, the jurors would never have convicted him of raping and
killing 19-year-old Stacey Stites and given him the death penalty, Reed's
lawyers told the state's highest criminal court Wednesday morning.

Reed is awaiting execution for killing Stites, whose body was found on the
side of a Bastrop road in 1996. Reed has said the two were having a secret
affair even though Stites was engaged to former Giddings police officer
Jimmy Fennell Jr. when she was abducted, raped and strangled.

"This court can do what it needs to do to correct a miscarriage of
justice," Morris Overstreet, one of Reed's appeal lawyers and a former
state appeals court judge, told the 9-member Texas Court of Criminal

Neither side introduced new evidence Wednesday. Instead, the defense
argued that evidence discovered after Reed's trial demonstrates his
innocence and compels the court to grant him a new trial.

The state and Stites' sister say that the right man is behind bars.

Reed's lawyers, Overstreet and Bryce Benjet, argued Wednesday that he
deserves a new trial. They said prosecutors didn't tell Reed's lawyers
about evidence in the case, including the state's DNA analysis results of
beer cans found near Stites' body that the contend could link fellow
Giddings police officer David Hall, a friend of Fennell's, to the crime

They also said prosecutors didn't tell Reed's defense lawyers about a
woman who said she saw Stites and Fennell together the morning of her
death and a police academy classmate of Fennell's who said she heard
Fennell say that he would strangle his girlfriend with a belt if he found
out that she cheated on him.

The Court of Criminal Appeals affirmed Reed's conviction in 2000 and
rejected his request for a new hearing in 2002.

2 years later, a federal district judge ordered a hearing on the 2
witnesses' accounts in state District Judge Reva Towslee Corbett's court.

After that hearing, Corbett ruled that the evidence would not have changed
the outcome of Reed's original trial. Wednesday's hearing was the appeal
of Corbett's ruling.

Reed's lawyers also said that forensic evidence in the case was

In court filings, they accuse officers and evidence technicians of a
variety of missteps, including placing a blanket over Stites' body and
contaminating any fiber evidence that the killer might have left, driving
over the dirt road next to the body without first preserving any tire
tracks or footprints, allowing personnel to stand near the body and touch
it without wearing gloves, not changing gloves between evidence collection
tasks, and other forensic mistakes.

Overstreet joined Reed's defense in 2005, when the Texas Defender Service,
which represents death row inmates, asked him to volunteer on the Reed
case, before a hearing on the new evidence in a Bastrop County district

"I was convinced that Rodney Reed was innocent of this, and so I agreed to
help," said Overstreet, who was at the time a law professor at Texas
Southern University.

Reed, who is African American, has said that racism played a role in what
he says was a rush to convict him of killing Stites, who was white.

Prosecutors say that the evidence discussed Wednesday isn't new, and
neither are the claims of errors in evidence collection.

They also disputed claims that the state withheld evidence from Reed's

In court filings, they say that a video recording of the evidence
collection was provided to Reed's trial lawyers.

In court Wednesday, Assistant Attorney General Tina Miranda said Reed's
defense lawyers had the beer cans in question tested before the trial.
That test did not link Hall or other suspects to the beer cans, she said.

Miranda wrote in a court filing that "most of (the evidence) could have
been presented during trial, but was not."

Reed's attorneys say the real killer was Fennell. They have described him
as an "obsessive boyfriend with a violent temper."

An ex-girlfriend of Fennell's told Reed's appeal lawyers in 2006 that
Fennell stalked and harassed her for months after their relationship

And in December, Fennell was arrested and accused of raping a woman while
on duty as a Georgetown police sergeant in October. He was indicted on
numerous charges, including aggravated sexual assault and aggravated
kidnapping. Fennell resigned from the Georgetown department in January.

But in court Wednesday, Miranda argued that if the court considers
Fennell's behavior, it should also consider five previous rape accusations
against Reed. He was indicted in connection with one of the alleged sexual
assaults and was acquitted of that charge.

After Wednesday morning's hearing, Stites' sister Debra Oliver said she
"absolutely believed" that Reed killed her sister. Oliver said a private
investigator her family hired was unable to link Fennell to Stites'

"When this first happened … immediately you think it's the closest
person to her … but it never made sense," she said of the suspicions of

The appeals court could rule in 2 to 6 months, Reed's lawyers said.

(source: Austin American-Statesman)