Day: October 26, 2012

TEXAS – Death penalty case reviewed – FARYON WARDRIP


October 26, 2012  http://www.timesrecordnews.com

A federal magistrate judge for the Northern District of Texas, Paul D. Stickney, is trying to decide what will happen with the death penalty case of convicted serial killer Faryion Wardrip in the appeals process.

Wardrip was sentenced to death in 1999 after being convicted of the murder of 20-year-old Terry Sims. He received life sentences for three other murders — Toni Gibbs, Ellen Blau and Debra Taylor.

Wardrip murdered at least four women in the North Texas area in the mid-1980s. The cases were unsolved for years.

Wichita Falls District Attorney Maureen Shelton was in Dallas on Wednesday to hear the appellate hearing.

The Texas Court of Criminal Appeals confirmed the death penalty decision.

“Once that happens, it switches over, and they can file a federal writ,” Shelton said. “The federal writ was filed Dec. 31, 2002.”

A district judge, Joe Fish, passes the case to Stickney, who makes a ruling on the case. Fish then decides whether to adopt the decision.

In July, 2008 Stickney ruled that he would allow a new punishment hearing because the defense attorney wasn’t effective, Shelton said. Fish approved the ruling April 19, 2010.

“Once that happened, the state of Texas is represented by the attorney general’s office in federal court.

The attorney general’s office appealed that decision to the Fifth Circuit, which is controlling over our area in New Orleans. The Fifth Circuit agreed with the state of Texas and vacated the district judge’s order,” Shelton said.

On June 10, 2011 Stickney and Fish were instructed by the Fifth Circuit to rework the case. Wednesday’s hearing is the result of the previous decisions.

“Once the magistrate issues his next ruling, and if the district judge adopts that, then the losing party, odds are, will appeal it,” Shelton said.

If the Fifth Circuit affirms the original decision for the death penalty, Wardrip’s attorneys can appeal the case to the U.S. Supreme Court.

The Supreme Court does not have to hear the case.

No matter the outcome of the appeal, Wardrip still has three consecutive life sentences to serve for the deaths of Gibbs, Blau and Taylor.

Shelton said the murders were the most horrific she has ever known about in Texas.

“It’s the worst serial murder we’ve had in, certainly, our history, and I’d say even nationally this is a horrific serial murderer,” Shelton said. “I don’t know how you don’t seek the death penalty for somebody like that.”

When the case comes back to the state court, an execution date can be set.

Wardrip was sentenced to 35 years in prison for the death of Tina Kimbrew in 1986, and under old parole laws, was paroled after serving 11 years in prison.

According to a previous Times Record News story:

The time he spent in prison for Kimbrew’s death is at the heart of the appellate issue going through the federal system.

Wardrip’s request for relief on grounds of ineffective assistance of counsel during his trial included the assertion that his attorney — then-public defender John Curry, who has since died — should have presented evidence from his time in prison. Wardrip claimed the evidence should have shown he took classes, wrote for a prison newspaper and took part in a fundraiser for a young man with medical needs.

 

 

 

 

 

 

 

 

 

 

 

 

 

TEXAS – A Death Row Struggle Between Advocates and Lawyers – Preston Hughes III


October 25, 2012 Texas Tribune

LIVINGSTON — Preston Hughes III, a death row inmate, is 46 but seems much older, with white hair, thick glasses and a quiet, slow voice that rises only when the subject of his lawyer comes up.

Mr. Hughes, convicted in 1989 of fatally stabbing two young people, has tried multiple times to dismiss his court-appointed lawyer, Patrick McCann. He said that Mr. McCann, who has been his lawyer for 14 years, had not raised his claims of innocence and is “helping the state cover this up.”

Mr. McCann says he cannot comment on why he will not pursue these claims, which were not introduced in Mr. Hughes’s original trial. But Texas and federal law set a high burden of proof for new claims of “actual innocence” so late in the judicial process, a bar that Mr. McCann said was “almost impossible” to meet.

Mr. Hughes, who says he did not commit the murders, is scheduled to be executed Nov. 15. He says all of his lawyers have failed him. “They just want to do things on their own,” he said recently from death row in Livingston.

While Mr. McCann is suing the state over lethal injection procedures, arguing that prison officials would be “experimenting” on his client, a handful of advocates are publicizing what they believe is new evidence of Mr. Hughes’s innocence.

The advocates, who do not have legal training, are campaigning for Mr. Hughes’s exoneration and supporting his efforts to have Mr. McCann fired.

The issue of advocates’ doubting the work of lawyers is common in death penalty cases, especially as an execution date nears.

“Once the lawyers do the spadework, a lot of people want to come in,” said Jeff Blackburn, a lawyer who runs the Innocence Project of Texas, “and they don’t understand that we’re limited with the art of the possible here.” He called Mr. McCann a “great lawyer.”

The official facts of the crime, on their face, pointed directly to Mr. Hughes. On the night of Sept. 26, 1988, Shandra Charles, 15, and her cousin Marcell Taylor, 3, were fatallystabbed in a Houston field. A police sergeant reported that before she died, Ms. Charles identified the name “Preston” and said, “He tried to rape me.”

Detectives located Mr. Hughes in a nearby apartment complex. Investigators found evidence of blood on his clothing and a knife in his apartment, as well as Ms. Charles’s eyeglasses on his couch. Mr. Hughes, who said the glasses were planted, confessed to the murder during the investigation but then denied involvement during the trial. No biological evidence tied him directly to the crime.

Convicted and sentenced to death in 1989, Mr. Hughes had multiple appeals rejected. Then, this year, several unlikely advocates became interested.

John Allen, 64, a retired engineer in California, writes a blog called The Skeptical Juror. With the help of Barbara Lunsford, an accountant in Corpus Christi, and Ward Larkin, an activist from Houston, he has spent nine months and more than 100,000 words delvinginto the forensic and legal details of Mr. Hughes’s case. None of the three are affiliated with an official organization, and while Mr. Allen has written about other convictions in the past, he said he had stopped looking at other cases for now.

After reviewing documents related to the trial, appeals and evidence, he deduced that Ms. Charles must have lost brain function within two minutes, and she could not have told the police the name of her attacker. “This is a seemingly overwhelming case” of innocence, Mr. Allen said, adding that he also believed that the victim’s glasses were planted in the apartment, based on his review of crime scene photographs.

In September, Mr. McCann said he had never heard of Mr. Allen’s investigation. This week, he said Mr. Allen “sounds like a very sincere man who is attempting to right a wrong.”

“Like in fantasy football,” he said, “I think lots of people are happy to offer thought without skin in the game.”

As for Mr. Hughes’s petitions to have him replaced, Mr. McCann said he thought they were the product of desperation. “When a person is drowning,” he said, “they sometimes try to fight the guy holding a life preserver.”

Mr. McCann agreed that Ms. Charles would have “been unconscious in a matter of seconds based on the blood loss,” and so she could not have said Mr. Hughes’s name to the police. Despite being troubled by this evidence, he is not filing a claim of innocence.

“I find myself in an odd position,” he said, “because I’m ethically bound not to advance a claim I think is false.”

Mr. Allen learned about the case while investigating the work of James Bolding, the head of blood analysis for the Houston Police Department’s crime lab at the time, who testified at Mr. Hughes’s 1989 trial. Mr. Bolding tested for blood on Mr. Hughes’s knife while he was in the courtroom. Mr. Hughes said the blood came from a rabbit he had killed months before.

Judge George Godwin said at the time that he found the “cavalier attitude and lackadaisical attitude of doing tests right while we’ve got a jury waiting to come in and hear testimony unacceptable.” He nevertheless ruled that the testimony was permissible.

Mr. Hughes said he trusted Mr. Allen more than his lawyer, Mr. McCann. In September, Mr. Hughes filed a petition to have Mr. McCann replaced, and a court rejected it.

Mr. McCann plans to follow the case to the end. In September, he sued the Texas prison system, saying that by using a single drug for the execution, as a result of a recent policy change, officials would be experimenting on his client. The Court of Criminal Appeals, Texas’ highest criminal court, has ordered the civil court overseeing the case not to stay Mr. Hughes’s execution.

Mr. McCann does not know when the court will rule. “The unfortunate timing of this is it’s before a contested election,” he said.

Murray Newman, a Houston defense lawyer, said he believed Mr. McCann was doing his best and cared about Mr. Hughes. “He works so hard on these cases. It’s like losing a family member,” Mr. Newman said.

From death row, Mr. Hughes sees it differently, as he plays basketball during his hour of recreation every day, eats food he calls “pitiful” and learns about court decisions from a small, black radio.

 

“We don’t like each other,” he said of Mr. McCann. “I don’t feel somebody who doesn’t like me is going to do anything for me.”