Sept. 10
URGENT ACTION APPEAL
10 September 2009
UA 240/09 Death penalty
USA Kenneth Mosley (m)
Kenneth Mosley, a 51-year-old African American man, is scheduled to be
executed in Texas on 24 September. He has spent 12 years on death row for
the murder of David Moore, a white police officer.
Kenneth Mosley entered a bank in Garland, Texas, on 15 February 1997,
wearing bulky clothes that were inappropriate for the warm weather. His
appearance raised a staff member's suspicion – she recognized him as the
person who had robbed the bank the previous month – and the police were
called. Officer David Moore arrived and confronted Mosley who was waiting
in the queue. A struggle occurred, the 2 men crashed through a plate glass
window, and Moore was shot and fatally wounded. Mosley was arrested at the
scene with a note saying "This is a hold up, I have a gun, put money in
bag." At the trial, Kenneth Mosley said that he had gone to the bank to
rob it to buy drugs. He testified that he had not intended to kill the
officer, and there was varying witness testimony about the incident,
including whether the shooting had appeared intentional. Kenneth Mosley
was convicted of capital murder. At the sentencing phase of the trial, the
defense presented only two witnesses. Mosley himself testified, and was
removed from the courtroom after he swore in graphic terms at the jurors.
He was sentenced to death.
Evidence not heard by the jury has been presented to the appeal courts
describing Mosley's poverty-stricken and abusive upbringing in a family of
poor farm-workers, his exposure to toxic pesticides as a child, his
possible brain damage, his depression, and his use of cocaine to
self-medicate. The appeal courts have upheld Kenneth Mosley's death
sentence, rejecting the claim that he had received inadequate
representation at trial. Kenneth Mosley's clemency petition asks the Board
of Pardons and Paroles to recommend to Governor Rick Perry that he commute
the death sentence to life imprisonment.
Texas continues to account for a large number of the USA's executions. Of
the 1,173 people put to death nationwide since 1977 when executions
resumed in the USA, 439 have been in Texas. There have been 37 executions
in the USA so far this year, 16 of them in Texas. Texas has carried out
200 executions since Governor Rick Perry took office in December 2000 (see
USA: Too much cruelty, too little clemency: Texas nears 200th execution
under current governor, 30 April 2009,
http://www.amnesty.org/en/library/info/AMR51/057/2009/en
BACKGROUND INFORMATION
Kenneth Mosley's family lived on several farms in Arkansas between 1961
and 1971 (when he was aged three to 13) and the whole family had continued
to work as laborers until 1979. In an affidavit presented to the appeal
courts in Kenneth Mosley's case, on of his brothers recalled that the
family was very poor. He also recalled the violence of their father
towards their mother: "He would become angry over the least little thing
and hit Mom with his hands, his fists, and kick her when she was on the
floor." The children, the brother said, were all scared of their father:
"When one of us kids did something wrong, our father would punish all of
us. We each had to take a turn in getting beat. One time the violence got
so bad that me and two of my brothers ran away from home. We did not get
very far; the police found us the same night. When we were returned home,
we were all whipped by our father." The brother also recalled that the
children would play around drums and barrels of pesticides on the farms
and that the pesticide residue would remain on the cotton fields where
they worked. Kenneth Mosley's mother and another older brother recalled
that both their house and the crops would be sprayed from the air with
pesticides.
A psychologist who examined Kenneth Mosley in 2000 concluded that he
suffers from frontal lobe dysfunction. Another psychologist, who reviewed
this finding, concluded that the evidence supported this assessment, and
that such a brain impairment would help to explain Kenneth Mosley's poor
impulse control, his problems with attention and concentration, and his
difficulty in inhibiting inappropriate behavior. In her affidavit, she
asserted that it was "exceedingly difficult for Kenneth Mosley to conform
his behavior to societal standards, particularly in the midst of stressful
situations." A third expert concluded that Kenneth Mosley has "generalized
brain impairment, as well as damage to specific areas in both the right
and left sides of his brain." She concluded that the "primary cause" of
his "neuro-cognitive deficits" was "his lengthy and varied exposures to
toxic chemicals at a vulnerable developmental stage." In her affidavit,
she added that current research and science indicate that such exposure
can cause "severe health problems, particularly in terms of neurological
damage."
Evidence that Kenneth Mosley has long suffered from major depression, and
that this had led him to self-medicate with cocaine, has also been
presented on appeal. However, the appeal courts have rejected the claim
that Mosley's trial lawyers had failed to adequately investigate and
present mitigating evidence to challenge the state's pursuit of the death
penalty at the sentencing phase of the trial. In a recent appeal brief to
the US Supreme Court, his current lawyers wrote: "Mosley's numerous
inpatient drug and alcohol treatments support that Mosley had debilitating
addiction and depression issues. Had [trial] counsel followed the leads
that these un-obtained medical records revealed, they would have learned
that much of Mosley's conduct was motivated by his desire to self-medicate
his severe depression. In addition, Mosley has brain impairment due to
chemical exposure as a child. There was a plethora of mitigating evidence
that was never uncovered and, thus, never evaluated for introduction at
the penalty proceedings."
Amnesty International opposes the death penalty in all cases,
unconditionally. To end the death penalty is to abandon a destructive,
diversionary and divisive public policy that is not consistent with widely
held values. It not only runs the risk of irrevocable error, it is also
costly, to the public purse as well as in social and psychological terms.
It has not been proved to have a special deterrent effect. It tends to be
applied in a discriminatory way, on grounds of race and class. It denies
the possibility of reconciliation and rehabilitation. It promotes
simplistic responses to complex human problems, rather than pursuing
explanations that could inform positive strategies. It prolongs the
suffering of the murder victim's family, and extends that suffering to the
loved ones of the condemned prisoner. It diverts resources that could be
better used to work against violent crime and assist those affected by it.
Today, some 139 countries are abolitionist in law or practice.
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:
– Expressing concern that Kenneth Mosley's jury was not presented with a
full picture of who they were sentencing, including of his background of
poverty and abuse, his possible brain impairment, and his depression;
– Urging the Board to recommend clemency to Kenneth Mosley;
– Calling on Governor Perry to accept such a recommendation, or if such a
recommendation is not forthcoming, to issue a stay of execution and a
request to the Board to reconsider;
– Explaining that you are not seeking to excuse violent crime or to
downplay the suffering caused to its victims.
APPEALS TO:
Note: Please cite Kenneth Mosley's prisoner number (#999243) in your
appeals.
Rissie L. Owens
Presiding Officer,
Board of Pardons and Paroles,
Executive Clemency Section
8610 Shoal Creek Boulevard, Austin, TX 78757
Fax: 1 512 467 0945
Salutation: Dear Ms Owens
Governor Rick Perry
Office of the Governor,
P.O. Box 12428
Austin, Texas 78711-2428
Fax: 1 512 463 1849
Salutation: Dear Governor
PLEASE SEND APPEALS IMMEDIATELY.
Check with the AIUSA Urgent Action office if sending appeals after 24
September 2009.
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END OF URGENT ACTION APPEAL
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