death penalty news—-TEXAS

April 17


Free to kill again

The Supreme Court decision yesterday allowing execution by lethal
injection eventually will free the nation's busiest death chamber the one
in Huntsville, Texas to pick up where it left off.

It's not a moment to celebrate for those distressed about the quality of
justice meted out in the state's courts.

The 6-month hiatus from state-sponsored killing allowed the Supreme Court
to review a challenge to a widely used injection method. A hiatus is just
what this newspaper has been calling for, but for different reasons.

The disturbing spate of DNA exonerations of Texas inmates is the most
powerful argument for freezing Texas' machinery of death. Dallas County
has the distinction of having more discredited cases than any county
nationwide. Just this week, a 16th wrongful conviction was announced here.
Thomas Clifford McGowan Jr. spent 23 years imprisoned by the state
stemming from a rape in Richardson that he didn't commit.

It appears that a flawed photo lineup technique was the root of the
breakdown in justice. Other prosecution methods and junk forensic
"science" have been implicated by the exonerations. None have involved a
death sentence, but they indicate flaws in the system that could have dire
consequences for the 360 men and 9 women on Texas' death row.

Gov. Rick Perry hailed the Supreme Court ruling yesterday, saying, "Texas
is a law and order state, and I stand by the majority of Texans who
support the death penalty as it is written in Texas law."

The governor's majority claim may be true, but support for the death
penalty appears to be waning in Texas. Prosecutors are more wary of taking
on marginal cases, and jurors want a higher standard of proof than the
recollections of a purported eyewitness. Life sentences without parole are
now an option for the courts.

Lethal injections may be cleared for use in the Texas death chamber again,
but that doesn't mean executions have to go forward. State lawmakers who
have doubts about the system have a responsibility to restate their case.

(source: Editorial, Dallas Morning News)


Supreme Court clears way for lethal injections to resume

The U.S. Supreme Court cleared the way Wednesday for lethal injections to
resume by declaring that Kentucky's lethal injection process was not cruel
and unusual punishment.

The 7-2 ruling was unusual in that seven different justices issued written
opinions on the case. Some say the fractured ruling may reignite the
debate over the constitutionality of the death penalty itself, which was
not at issue in this case.

Dallas County District Attorney Craig Watkins said he was particularly
interested in a concurring opinion by Justice John Paul Stevens, who
seemed to indicate that he no longer supports the death penalty.

"The time for a dispassionate, impartial comparison of the enormous costs
that death penalty litigation imposes on society with the benefits that it
produces has surely arrived," Justice Stevens wrote.

"All of this is really getting us closer to having this honest
conversation about the death penalty," said Mr. Watkins. "It's time," he
said, adding that he thinks the spark for the debate is "going to come
from someone in a district attorney's seat."

Executions across the country, including Texas, have been halted in a de
facto moratorium since the high court accepted the Kentucky case last

But Texas' execution chamber, the busiest in the nation, probably won't
open for business again until a similar case, involving Heliberto Chi, who
was convicted of killing a store clerk in Arlington, is resolved by the
Texas Court of Criminal Appeals.

"It's a procedural hurdle that still has to be cleared," said Edward
Wilkinson, assistant chief of the appellate section of the Tarrant County
district attorney's office.

Mr. Chi's execution was stayed by the Texas court in October after the
Supreme Court had agreed to hear the Kentucky case.

The Court of Criminal Appeals received briefs in the Chi case in January.
The Chi case involves not only the drugs used in executions, but also
other protocol issues such as training of the person who administers the

In the Kentucky case, Baze vs. Rees, attorneys argued that the combination
of drugs and administration of lethal injections caused the inmate to
suffer unnecessarily, violating the constitutional prohibition against
cruel and unusual punishment.

Texas uses the same drug cocktail in executions, but David Dow, law
professor at the University of Houston, said the process in Texas is less
transparent than the process in Kentucky, so, "It is possible that lethal
injection challenge will get some traction in Texas."

Mr. Dow is assisting in the Chi case.

The Supreme Court's 7-2 decision in the Kentucky case was not unexpected
but the division among justices arriving at the decision was. Though Chief
Justice John Roberts wrote the deciding opinion, it was joined completely
by only 2 other justices.

The inmates' attorneys "pretty much knew from the outset that they would
lose it," Mr. Watkins said.

Rob Owen, a law professor at the University of Texas, agreed that while
the final decision of the Supreme Court wasn't a surprise, "the number and
variety of questions raised by the separate opinions was unexpected."

"There is still an open question about how to evaluate the system in a
particular state. The most I think that can be said for the decision in
Baze is that it says Kentucky's system passes constitutional muster. And
it leaves open, I think, the question of other states and how they
implement the lethal injection."

The court ruled that anyone challenging the method of execution must show
a "substantial risk of significant harm" and identify an alternative
method that reduces that risk, Mr. Dow said. That opens the door for other
inmates to challenge the protocol in their state.

Texas is particularly ripe for such a challenge because of "sheer sample
size," Mr. Dow said.

While Kentucky has executed only two people since the reinstatement of
capital punishment in 1976, Texas has executed 405. With such an extensive
track record, there is a greater chance of meeting the "substantial risk"
standard set by the court, Mr. Dow said.

Even if the Chi case is decided immediately, it would be several weeks
before any executions resume in Texas.

Inmates must be given at least 45 days notice if it is their first time to
have a date set, or 30 days notice if they have had previous execution
dates, said Michelle Lyons, spokeswoman for the Texas Department of
Criminal Justice.

Judges can set execution dates pending the outcome of the Chi ruling, but
those cases are likely to also be put on hold by the state's top criminal

The last Texas inmate with an execution date was Karl Chamberlain of
Dallas, said Ms. Lyons.

Mr. Chamberlain, who was convicted in 1997 for the sexual assault and
murder of a Dallas woman in 1991, had been scheduled for lethal injection
in February. Mr. Watkins' office withdrew its request for his execution
date pending the Supreme Court's decision.

"Obviously, from a legal standpoint, yeah, we have to go forward" with
Dallas death penalty cases, he said. But Mr. Watkins said "it weighs on my

In light of the Supreme Court's decision, "I have no choice. I'm not
thrilled. I'm not thrilled."


Dallas County District Attorney Craig Watkins on his struggles with the
death penalty:

"I sit here and I see the worst, the worst of what humans can do. And when
you sit here and see that, the only logical conclusion that you can come
to is we have to seek the ultimate punishment.

"But when you go home, sit with your family in day-to-day chores, you look
at morality and religion and think about the course of life. Then you
start to question, 'Am I putting myself in that same position as that
person [who] for whatever reason decided to take a life?'

"Now, I represent the government and I am in the position to do the same
that they do. I struggle with that. As a district attorney, I'm here to
uphold the law and protect the society I have been elected to represent.
So the question I have for myself is: 'If I don't pursue these crimes that
are so heinous with ultimate punishment, am I living up to my ultimate

"But my other side of me is not only to protect society but to make
society better. If I do the death penalty, am I doing that?"


Man exonerated for rape gives forgiveness

A DNA sample from Thomas McGowan proved him innocent of rape, which made
his exoneration the 16th conviction overturned in Dallas using DNA.

McGowan was arrested in Richardson in 1985 and sent to prison for life.
But Wednesday, the nightmare ended for him and his family.

The life sentence was overturned with just a few words from Judge Susan
Hawk to McGowan.

"Words cannot say how sorry I am for the past 23 years," she said. "Is
there any statement you would like to make?"

"Thank you," McGowan said. "Thank the DA, the Innocence Project. God is

Since McGowan was wrongfully convicted in 1985, he has spent almost half
his life locked up for a rape he didn't commit. But his family said they
never doubted his innocence as the years went by with McGowan behind bars.

"Oh my God, he missed his whole life," said Doris Washington, McGowan's
sister. "He never got married. He doesn't have any children. He missed a
big part of his life. He was 27-years-old."

McGowan was convicted because the victim said she was sure he was guilty;
but DNA has now proved her wrong.

McGowan said he harbors no resentment.

"I know God forgives," he said. "So, I got to forgive too. It's not for me
to be holding anger and resentment. I feel good. The bad news is over

His father and one of his sisters died while he was in prison.

"It's a blessing I was alive to see this," said his mother.

McGowan was released without the $100 the state gives parolees. James
Giles, who was exonerated last year, knows what that's like.

"So, I'm going to give him this $100 bill to make sure he has something,"
Giles said handing over the bill.

McGowan walked to his freedom and new life Wednesday.

(source for both: Dallas Morning News)


YOGURT SHOP MURDERS—-Lawyer: New evidence found in yogurt shop case;
Prosecutors dispute claim that DNA exonerates defendant.

The lawyer for Robert Springsteen, 1 of 2 defendants expected to be
retried this year in Austin's infamous 1991 yogurt shop murders of 4
teenage girls, wrote in a court filing this week that new DNA evidence in
the case exonerates Springsteen, co-defendant Michael Scott as well as 2
former defendants, something prosecutors dispute.

On Wednesday, defense lawyer Joe James Sawyer petitioned for Springsteen's
release on bail before trial. That petition, which cites the new evidence,
was first reported in the Austin Chronicle's online edition.

The petition disclosed for the 1st time that in preparation for Scott and
Springsteen's upcoming retrials, prosecutors ordered new DNA testing in
the case. Through that testing, investigators found male DNA in a vaginal
swab taken from 13-year-old victim Amy Ayers that is not from Springsteen
or Scott, the petition said. Forrest Wellborn, whose murder charges in the
case were dismissed after a grand jury declined to indict him, and Maurice
Pierce, whose indictment in the case was later dismissed by prosecutors,
also do not match the DNA, according to the petition.

"This exonerates defendant Springsteen and makes it clear someone else
committed these murders," Sawyer wrote in the petition.

Ayers was killed along with Eliza Thomas, 17, and sisters Jennifer and
Sarah Harbison, ages 17 and 15, during a 1991 robbery at the I Can't
Believe It's Yogurt store near Northcross Mall. The store was then set on
fire, destroying much of the physical evidence.

The case stymied police until 1999 when they arrested the 4 men.

Scott and Springsteen were both convicted of capital murder, based mostly
on their alleged confessions to the crimes. Lawyers for the men said their
statements were coerced and noted that police had received dozens of other
confessions that were discounted. An appeals court overturned the
convictions, saying prosecutors improperly used Springsteen's confession
against Scott and vice versa. The Supreme Court has ruled that using such
statements and not live testimony deprives the defendant of his right to
cross-examine witnesses against him.

Scott's May trial has been postponed, with no new date set; Springsteen
will be tried sometime after Scott.

Prosecutor Gail Van Winkle today disputed Sawyer's assertion that the DNA
evidence exonerates the men.

"We still have testing going on to determine the identity of that
profile," she said. Van Winkle noted that DNA not linked to any of the
defendants or former defendants had been found before on Jennifer
Harbison. That DNA was later determined to be Harbison's boyfriend's, Van
Winkle said.

Van Winkle said that Sawyer's disclosure of the evidence may have violated
a protective order issued by state District Judge Mike Lynch that prevents
lawyers from making out-of-court statements about any evidence, including
witness statements or DNA test results.

Lynch might have ordered the petition sealed. It did not appear Thursday
in a check of the court files. Sawyer could not be reached for comment.

Van Winkle said that the newly found DNA is not in a form that can be
entered into the state database of DNA, which includes convicted felons.

"It's fairly new" technology that recovered the DNA, she said. "It's my
understanding it's effective on degraded samples."

Defense lawyers on Tuesday won the right to conduct new DNA tests on some
other evidence in the case, including several articles of clothing and
materials used to bind and gag the victims. Prosecutors argued the
evidence is unreliable and tainted, because it has been handled by many
people since being publicly introduced at trial several years ago.

Lynch warned any new evidence could still be excluded from trial if shown
to be tainted.

(source: Austin American-Statesman)


Death penalty gets new life

The page on the Texas Death Row Web site that lists executions was empty
Wednesday, but it is not likely to stay that way long.

And one of the men convicted in the infamous dragging death of James Byrd
Jr. is likely to be high on the list after a 7-month execution hiatus.

The U.S. Supreme Court cleared the way for resumption of executions when
it issued a ruling Wednesday upholding lethal injection as a means of
carrying out a death sentence.

Six inmates on Texas death row are there courtesy of Southeast Texas

Of these, Lawrence Russell Brewer, the 2nd man to be sent to death row in
the Byrd case, is perhaps the closest to being scheduled for execution.

Brewer, 41, was convicted after being tried in Bryan on a change of venue.
He has been on death row since 1999 for the June 7, 1998, death of Byrd,
according to The Enterprise archives.

Brewer's case has been denied review by the Supreme Court and there is no
further legal recourse for challenging his death sentence, said his
Austin-based appeals lawyer, Alex Calhoun.

Calhoun, who opposes the death penalty, said he was "disappointed" by the
Supreme Court's ruling.

"Execution is not going to solve any problems, but the state's got to have
blood for blood," he added.

The Enterprise was unable to locate any of Byrd's relatives Wednesday for
comment, but in the past, Byrd's son, Ross Byrd, was a vocal opponent of
the death penalty.

Jeff Feldman, an Alaska-based lawyer who is handling the retardation
appeal of Elroy Chester, said even if the Supreme Court had ruled that
lethal injection was unconstitutional, it would not have stopped the death

"Obviously there's nothing good to be said about the Supreme Court
endorsing a manner of killing," he said.

Chester, now 38, was convicted and sentenced to death in the 1998 capital
murder of Port Arthur firefighter Willie Ryman.

Chester shot Ryman to death as Ryman was trying to keep his nieces from
being raped by Chester.

Chester's appeal, based on the claim that he is retarded and therefore not
eligible to be executed, still is making its way through the courts.

"This decision removes one roadblock to enforcing the death penalty,"
Feldman said, adding, "Our battle goes on very different grounds."

Jefferson County District Attorney Tom Maness said he was not surprised by
the ruling.

"There was a lack of evidence that serious pain is inflicted before death
(by lethal injection)," Maness said.

"I've often felt it was kind of silly to worry about hurting someone a
little bit before taking their life," he said. "And the people you would
be hurting inflicted the most brutal pain on their victims."

Max Dawson, a pastor and evangelist at Dowlen Road Church of Christ, said
he thought lethal injection was a "very humane" method of execution,
because one of the drugs used causes unconsciousness before the drugs that
cause death are injected.

Dawson said both Old and New Testament scripture support the death

"God authorizes governments to carry out the death penalty," Dawson said.
"Government serves as a minister for God to execute wrath on those who do

"Not only does the civil government have the right to judge crimes, but it
also has a right to carry out the ultimate penalty."

Robert Gazaway, president of the local chapter of the Texas Coalition to
Abolish the Death Penalty, rued Wednesday's ruling because it opens the
gates to a glut of executions.

"Sooner or later, the citizens of Texas are going to have to come to grips
that the death penalty is much more expensive than keeping people in
prison for the rest of their lives."

Gazaway cited the prevalence of people being executed for crimes they did
not commit as a principal objection to the practice.

"It just doesn't make sense for a civilized society to continue to use the
death penalty when we have life without parole," he added.

A brief written statement from the Texas Attorney General's Office said
the moratorium had delayed justice for crime victims and their families,
but the state soon would rectify that.

"In the wake of today's decision, the Office of the Attorney General will
take the legal action necessary to bring closure to these victims," said
AG spokesman Jerry Strickland in the statement.

A Kentucky inmate had argued that the combination of drugs widely used for
execution in America constituted cruel and unusual punishment, a violation
of the Constitution.

(source: The Beaumont Enterprise)