death penalty news—-TEXAS

Feb. 3

TEXAS—-new death sentence

Jury gives death penalty to killer of 4 in McKinney

A Collin County jury decided late Monday that Raul Cortez should die for
killing 4 people at a McKinney home 5 years ago, the worst mass murder in
county history.

The panel deliberated nearly 7 hours before reaching its decision about 10
p.m. Cortez, 28, did not visibly react as the sentence was announced by
visiting State District Judge Webb Biard.

The case will be automatically appealed.

The same jury on Thursday found Cortez guilty in the March 12, 2004,
shooting deaths of Rosa Barbosa, 46; her nephew, Mark Barbosa, 25; and his
friends Matthew Self, 17, and Austin York, 18. The 4 were slain in Ms.
Barbosa's home in what authorities say was a botched robbery plot.

Eddie Ray Williams, 26, is also charged with capital murder in the case.
His trial is pending.

After the sentencing, relatives of the victims addressed Cortez. Matthew
Self's mother, Nancy Self, showed him a photo of her slain son.

"This is the face of the child you took from me," she said. "The smirk on
your face, even now, tells me you don't think you took his life. I hear
him cry my name every night."

Steve Wilson, Austin York's stepfather, spoke to Cortez next.

"This young man had a future," Wilson said, as he held up a photo of York
for Cortez to see. "You've smiled, you've smirked, but at the end of the
day you have no chance of going to heaven."

The jury began deliberating Monday afternoon after an emotional final day
of testimony during which members of the victims' and defendant's families

At one point, Cortez's mother fell to her knees.

"Please give him a chance to live," a crying Elsa Cortez begged, speaking
through an interpreter. "He can change if you give him the opportunity.
God can change him."

As she was escorted from the courtroom moments later, the inconsolable
mother sobbed loudly as her son sat quietly at the defense table.

Later in the morning York's mother, Laurie Wilson, described the toll her
son's death has taken on her and her family.

"What happened March 12 wrecked my life," she said, her voice breaking as
some in the courtroom wept.

Before she testified, her daughter, Sydney Wilson, told the jury that her
older brother would never be able to attend her graduation or her wedding.
The 17-year-old said his murder "crumbled" her faith.

In his closing statement in the three-week trial, defense attorney John
Tatum told jury members that they "put the mark of Cain" on Cortez when
they found him guilty.

"Vengeance is not the prerogative of man," said Tatum in asking the jury
to spare his client's life. Whether the jury imposes "death by execution"
or "death by institution," Cortez will die in prison, he said.

"The only question is when."

But Collin County prosecutor Greg Davis told jurors, "Mercy and sympathy
are not substitutes for true justice."

Davis called the 28-year-old Cortez "heartless" and "cold-blooded" and
said he deserved to pay the ultimate price for his crime.

"If the mark of Cain is on the defendant," Davis said, "it's because he
marked himself."

(source: Dallas Morning News)


Verdict is still out on innocence as defense

Does innocence matter?

When I posed that question in a column last week on death row inmate Larry
Swearingen's innocence claim in federal court, I was unaware of the state
of Texas' long-held official answer.

The next day, attorney Gerry Birnberg sent me the link to the transcript
of the 1992 oral arguments before the U.S. Supreme Court in the landmark
case Herrera v. Collins.

I was appalled by what I read.

The State of Texas argued before the nation's highest court that it was OK
to execute an innocent person, as long as he got a fair trial.

The most chilling exchange came when a justice asked the assistant
attorney general arguing for Texas, Margaret Griffey, whether the state
would maintain that same position if video evidence conclusively proved
the person didn't commit the crime. The justice wanted to know: Is there a
violation of that person's constitutional rights if he were executed
anyway because no court would hear the video evidence?

"No, Your Honor, there is not," Griffey replied.

The justices continued to probe, as if needing clarification of what they
were hearing.

If everyone agrees that the evidence establishes innocence, another
justice inquired, but the jury just made a mistake, "is there a
constitutional right under the Eighth Amendment (which bars cruel and
unusual punishment) not to be executed when you're innocent? That's the
issue. And you're saying no, there's no such right."

"That is what I'm saying, Your Honor," said Griffey.

Several criminal defense attorneys told me this is still Texas' official
stance. But I decided to ask Attorney General Greg Abbotts office.

AG spokesman Jerry Strickland provided an unexpected response. Texas, it
seems, has changed its mind.

"No," he wrote in an e-mail. "It would not be permissible for the state to
execute a person whom the state knew to be innocent." In a later e-mail,
he said such an execution "would constitute a miscarriage of justice."

I asked what led to the change of position, and he wouldn't elaborate. But
he pointed out that even under the old thinking, AG's attorneys had worked
to clear inmates they felt were wrongfully convicted.

The new philosophy was news to the criminal defense bar.

"It's a breath of fresh air coming from the AG's office, a fabulous
development," said James Rytting, who represents Swearingen. "To take the
position that you can kill people who are innocent is morally repugnant to
anyone's system of justice."

Rytting said the AG's new stance could help his client, who got a stay of
execution from a federal appeals court last week based on newfound
forensic evidence. The evidence suggests Swearingen was in jail on an
unrelated charge in 1998 when the body of 19-year-old victim Melissa
Trotter was dumped in the woods.

But several other criminal defense attorneys expressed skepticism that the
AG's lawyers, who represent the state in late criminal appeals in federal
court, will practice what their office is now preaching.

The AG's office, defense attorneys say, still throw up every roadblock at
their disposal, such as procedural errors and strict adherence to
deadlines, to derail even credible claims of innocence.

"It's a refreshing attitude," said attorney Patrick McCann, but, "until
they start actually waiving appeal and confessing error … they're just
blowing smoke."

"It's a significant change in position," said attorney Dick Burr. "We in
the capital defense bar hope they will likewise have a more open-minded
approach to the facts showing innocence."

"They're charged to defend the states convictions," said attorney Stan
Schneider. "I don't see them changing. They're going to continue fighting

Still more roadblocks

The question remained: was Strickland articulating a true shift in Texas'
approach to innocence claims, that actual innocence actually matters, or
just feeding a line to a newspaper columnist?

The proof, I guess, is in the pleadings.

As recently as last month, the AG's lawyers answered Swearingen's
compelling claim of actual innocence with the same procedural roadblocks
its employed for years.

Among the reasons the AG's office argued that the 5th Circuit shouldn't
consider the merits of Swearingen's claim: It was past deadline.

And, this late in the game, in federal court, being truly innocent isn't a
good enough reason to ask not to be executed.

(source: Commentary, Lisa Falkenberg, Houston Chronicle)