Oct. 8
TEXAS:
Death row inmate loses appeal on retardation claim
The state's highest criminal appeals court on Wednesday rejected the
appeal of Texas death row inmate Bobby Wayne Woods, whose attorneys
contend he is mentally retarded and ineligible for execution.
By an 8-1 vote, the Texas Court of Criminal Appeals ruled that evidence of
mental retardation was insufficient to warrant a new trial for Woods.
Bobby Wayne Woods was to die last Oct. 23 for cutting the throat and
killing his ex-girlfriend's 11-year-old daughter, Sarah Patterson, after
abducting her and her brother from their Granbury home in 1997.
Hours before Woods was to die in 2008, the appeals court halted the
scheduled execution after his attorneys said they had new evidence to
support their retardation claims.
No new execution date has been set.
The U.S. Supreme Court has ruled that mentally retarded inmates may not be
executed.
Woods' attorneys had cited the testimony of a defense psychologist that he
"is, and always has been, always will be, a mentally retarded person."
In a 44-page majority opinion, Judge Barbara Parker Hervey wrote that the
defense expert did not personally interview or test Woods. Instead, it was
based "on a review of various materials, including portions of a report of
a non-testifying defense psychologist." That psychologist, also hired by
the defense, did evaluate Woods personally and found him not to be
mentally retarded.
In conclusion, the court majority decided that Woods' "additional evidence
does not compellingly or dramatically undermine the previously considered
substantial evidence that supports a finding that [he] is not mentally
retarded."
Judge Charles Holcomb dissented without comment.
In a 2-page concurring opinion, Presiding Judge Sharon Keller criticized a
previous ruling by the court that allows mental retardation claims to be
raised in last-minute appeals. That decision, she wrote, took the 1st step
in opening the floodgates to last-minute, unmeritorious mental-retardation
claims.
"Now, all an applicant has to do to force this court to engage in a
time-consuming, last-minute review of the entire record is to find another
family member or another expert witness who is willing to suggest that the
applicant may have some sort of mental deficiency," she wrote.
"The court's lengthy opinion in this case is an excellent example of the
time and effort that will be consumed in dispensing with the subsequent,
unmeritorious applications that are likely to reach the court in the
future," she added.
Keller is awaiting a verdict on judicial misconduct charges in another
case for refusing to keep the appeals court open late for attorneys trying
to stop the Sept. 25, 2007, execution of Michael Wayne Richard.
(source: Associated Press)
****************
Keller case moving forward
Transcripts from Judge Sharon Keller's 4-day August trial were due to
arrive at law offices Wednesday. Keller is accused of improperly closing
the Court of Criminal Appeals to a death row inmate on the evening of his
execution.
Once the transcripts are in hand, the defense and prosecution will have 2
weeks to file proposed findings of fact to District Judge David
Berchelmann Jr. Then they'll have 1 week to file objections to the other
side's proposal.
And then it will be up to Berchelmann, who must submit his findings of
fact to the State Commission on Judicial Conduct, which charged Keller
with violating her duty as a judge and bringing discredit upon the
judiciary when she refused to keep the court open for an after-hours
appeal by death row inmate Michael Richard in 2007.
The 13-member commission will rely on Berchelmann's findings to decide
among three options: drop the charges, censure Keller or suggest that she
be removed from office. A removal recommendation would kick off an
entirely new proceeding before a specially created panel of seven
appellate court judges.
(source: Austin American-Statesman)
**********************
Single vote spares killer's life
A single vote spared the life of a man who massacred a family in a small
Panhandle town four years ago, the foreman of the Lubbock jury said
Wednesday.
Jury foreman Tommy Jones said one juror could not sentence Levi King to
die for the brutal shootings that left three dead and a young girl
traumatized in a Gray County farmhouse.
"The majority of the people on that jury wanted the death penalty," Jones
said. "I'm just flabbergasted that we couldn't get a death penalty out of
that trial."
King, 27, pleaded guilty last month to killing Michell Conrad, 35, her
husband Brian Conrad, 31, and her 14-year-old son, Zach Doan. Michell
Conrad was six months pregnant.
Robin Doan, who was 10 at the time, was the only survivor of the 2005
attack.
State District Judge Steven Emmert moved the trial to Lubbock because of
extensive pretrial coverage in the Panhandle.
King was brought from Missouri, where he was serving two consecutive life
sentences for murder, to Texas to stand trial.
Jones began leaning toward the death penalty when he heard the recording
of the 911 Doan made after listening to her family die.
"It was very emotional for all of us," Jones said. "There wasn't much of a
dry eye in the house I don't think."
He reserved judgment, though, until he heard the weeks of defense
testimony.
A death sentence in Texas requires unanimous votes on 2 issues.
The jury must find that the defendant poses a future danger to society –
or to other prisoners, in a capital case.
They must also unanimously decide there are no mitigating circumstances
that warrant a life sentence without the possibility of parole instead of
death.
Jurors on Tuesday deliberated for more than six hours before agreeing King
posed a threat to other prisoners, Jones said.
5 jurors struggled over whether mitigating circumstances meant King should
spend life in prison.
One said she absolutely could not say there was no evidence that warranted
sparing his life – which resulted in a life sentence by default.
The outcome frustrated Jones but he did not blame the juror for sticking
to her beliefs, he said.
After informing the judge they had reached a verdict, Jones said jurors
sat in silence in the jury room until he spoke up.
"Finally, I told them, 'I respect each of ya'll's decision'," Jones said.
"'But I want to let you know that I am frustrated and upset that we
couldn't kill the son-of-a——.'
"That's exactly how I feel today and how I'll feel from now on," he said
Wednesday.
Convincing at least one juror to hold out against a death sentence is the
common tactic for defense attorneys in capital cases, said Jack
Stoffregen, who heads the office of the West Texas Regional Public
Defender for Capital Cases.
"The strategy in all the death penalty cases I've ever done and that we do
is to get one juror to vote in such a way that's gonna hang it up because
the default position is a life sentence," Stoffregen said. "Obviously our
strategy is to get 12 that would go with us, but that doesn't happen
often…so you try to get that one person on there."
Maxwell Peck III, King's attorney, said his goal was to convince all
jurors to vote for life without parole.
The jury's decision still resulted in the best possible outcome, he said.
"Really all it takes is one," Peck said. "We'll take whatever we can get."
Peck expected the Lubbock sentence to finish the case.
He would not rule out the possibility that King could appeal – and face
the death penalty again.
But he believed King would spend the rest of his life behind bars in
Missouri.
Prosecutor Lynn Switzer had not spoken with any of the jurors and said it
was thoughtful for Jones to explain the jury's position.
"I appreciate him coming forth and telling us that," Switzer said.
She praised the jurors' hard work, despite the fact that she did not get
the sentence she hoped for.
"It is what it is and we respect their position," she said.
(source: Lubbock Avalanche-Journal)
**********************
Re-Trial For First Death Penalty Verdict
The 1st person ever to receive the death penalty in Gillespie County
history will be getting a new punishment trial — 18 years after he was
convicted here in January of 1991.
The announcement came last Wednesday, Sept. 30, when the Texas Court of
Criminal Appeals ruled that the Fredericksburg jury in the capital murder
trial of Carl Wayne Buntion, 69, had received "an improper instruction"
when it decided that he should be put to death.
Since his conviction, Buntion has been on death row for the June 27, 1990,
shooting death of James Irby, 37, a Houston motorcycle officer who had
pulled over a car in which Buntion was a passenger.
According to an article released last week by the Associated Press, the
appeals court said instructions given to the 7-woman, 5-man jury
deliberating whether Buntion should get the death penalty did not have a
proper way "to give meaningful consideration" to evidence Buntion had a
troubled childhood, was mistreated by an alcoholic father and had run away
from home to work on a dairy farm because his family was poor.
In addition, the AP article noted that evidence also showed Buntion
suffered from a paranoid personality disorder, depression and a mild brain
dysfunction.
Lynn Hardaway, assistant district attorney with the Harris County District
Attorney's Office, explained Monday that, while Buntion's guilty verdict
will stand, the case must now be re-tried on the punishment phase.
No indication has been given that the re-trial might possibly take place
here.
(source: Fredericksburg Standard)