Texas

TEXAS – Court rejects death sentence appeal in 1998 road rage killings of two truckers – DOUGLAS FELDMAN

September 20, 2012 http://fleetowner.com

READ THE OPINION : http://www.ca5.uscourts.gov/opinions/pub/11/11-70013-CV0.wpd.pdf

The 5th U.S. Circuit Court of Appeals has rejected an appeal to get Douglas Feldman, 54, off death row for the road rage slayings of two truck drivers in 1998 in Texas.

Feldman, a former financial analyst, was convicted in 1999 of murder in the shooting deaths of truckers Nicholas Velasquez, 62, of Irving, TX, and Robert Everett, 36, of Marshfield, MO.

In his 1999 trial, Feldman told jurors he was cruising on his Harley-Davidson on southbound Dallas Central Expressway in August 1998 when a truck “came out of nowhere, just flying.” He said he feared for his life and became angry, according to a report in The Dallas Morning News.

Feldman testified that he fired at Everett’s truck “because I felt like I needed to try to stop that man.” When the truck continued on the highway, “I chased Mr. Everett down, and I shot him to death.”

Feldman said he then spotted Velasquez at a gas station and “exploded again in anger” and shot him, even though Velasquez had done nothing to him. He then shot another man in a restaurant parking lot, who survived.

“I felt emotionally compelled,” Feldman told jurors. “I was consumed by anger.”

In his trial, Feldman testified that he carried a 9mm handgun because he thought his life was in danger. His lawyers presented evidence showing that he had been treated earlier for substance abuse and paranoia.

The jury in the trial took only 24 minutes to convict Feldman of capital murder in the case. He was sentenced to death, but an execution date has yet to be set.

In his appeal, Feldman contended that he had deficient legal help at his trial, that the jury received improper instructions and that a prospective juror was improperly dismissed.

Feldman’s lawyer said he plans to appeal the case to the U.S. Supreme Court.

TEXAS – Austin killer on death row dies, officials say. Selwyn P. Davis

July 25, 2012 Austin Legal

Selwyn P. Davis, sentenced to death by a Travis County jury for the 2006 Austin murder of his girlfriend’s mother, was found dead in his cell on Texas’ death row last week, according to a spokesman for the Texas Department of Criminal Justice.

Corrections officers conducting routine security checks found Davis, 30, unresponsive on the floor of his cell about 9 p.m. Friday, spokesman Jason Clark wrote in an email.

“Staff began life saving measures, called 911, and took the offender to the unit infirmary,” Clark wrote. “An ambulance then transported Davis to Livingston Memorial Hospital where he was pronounced deceased by an attending physician at 10:04 pm.”

Clark said the cause of death is unknown and that the department’s Office of Inspector General will investigate the death, which is routine.

Davis stabbed Regina Lara to death in her 38 1/2 Street apartment on Aug. 22, 2006.

According to testimony at his trial, the killing occurred during a two-day crime spree that began the day before, when he brutally beat his ex-girlfriend in their Southeast Austin apartment, fracturing her eye socket and jaw, slicing her leg, pouring rubbing alcohol over her head and threatening to set her on fire.

Later that night, he went to his uncle’s South Austin house and sliced him with a knife, according to testimony. He left after taking his aunt’s car and purse and went on an overnight drug binge, according to testimony.

The next day he went to Lara’s apartment and attacked her when she came home from work. Davis also sexually assaulted a teenage girl at the house, according to testimony.

In seeking the death penalty, prosecutors revealed Davis’ long criminal history, which included assaults on police officers and unprovoked attacks — on a teacher and another student — at Lanier High School, and robberies of immigrant workers in the East Riverside Drive area.

When he was 16, Davis attacked a 13-year-old girl by punching her in the face and kicking her in the stomach after her mother told Davis the girl was pregnant, according to testimony. Information from the Texas Department of Criminal Justice has been added to this story since it was originally filed

Texas – Death Sentence Thrown Out in 2005 Murder Case – Manuel Velez

June 13, 2012 Source : http://www.texastribune.org

The Texas Court of Criminal Appeals on Wednesday threw out the death sentence of Manuel Velez, who was convicted of killing his girlfriend’s infant son in 2005. The decision was based on what the court said was the use of inaccurate expert testimony during Velez’s sentencing.

Velez, who was convicted by a Cameron County jury, will be taken off death row, though he has not been cleared of his conviction. Velez has already filed an appeal of his conviction, said Brian Stull, a senior staff attorney at the American Civil Liberties Union Capital Punishment Project.

Velez’s death sentence was based on testimony from state expert A.P. Merillat, who gave the jury incorrect information about what freedoms Velez would have if not sentenced to death, according to Wednesday’s ruling.

Merillat made it seem Velez “would have a lot of freedom he truly would not have,” Stull said. “And that’s a key issue in Texas — the state has to prove future danger.”

Armando Villalobos, the Cameron County district attorney who was a prosecutor in the case, did not immediately respond to multiple requests for comment.

Velez will be represented by lawyers from two private law firms when he appeals his sentence, though Stull said he will be available to Velez as well.

The lawyers have uncovered evidence that injuries to the baby were sustained before Velez lived with him and while Velez was out of the state, Stull said.

The court also found that Velez’s girlfriend had given misleading testimony at the trial, though it did not consider that testimony grounds to reverse the sentence or conviction.

Merillat’s testimony, meanwhile, was also the basis for a previous death sentence that was overturned after ACLU involvement in 2010.

TEXAS – Agreement on DNA testing in Skinner case, but “key” evidence missing

June 13, source : http://www.chron.com

Hank Skinner.Hank Skinner

DNA testing of evidence in the Henry Skinner triple murder case hit yet another snag this week as prosecutors admitted that a blood-stained windbreaker – termed “perhaps the key piece of evidence” by the killer’s lawyer – cannot be found.

In a motion laying out terms of a joint agreement to begin testing filed late Tuesday, the state and Skinner attorney Rob Owen identify 40 items to be submitted for testing. Among them are clippings from a victim’s fingernails, vaginal swabs, and knives found at the scene of the 1993 New Year’s Eve Pampa murder.

Skinner, 50, was convicted of fatally bludgeoning his girlfriend, Twila Busby, and stabbing to death her two adult sons. He consistently has maintained his innocence, saying that consumption of codeine and alcohol had rendered him incapable of killing the victims.

Prosecutors in Tuesday’s filing concede that the windbreaker, collected from the scene by the Pampa Police Department, has not been found.

“According to the state, every other single piece of evidence in this case has been preserved,” Owen said in an email. “It is difficult to understand how the state has managed to maintain custody of items as small as fingernail clippings while apparently losing something as large as a man’s windbreaker jacket. To date, the state has offered no explanation for its failure to safeguard evidence in this case.”

A spokesman for the Texas Attorney General’s Office declined immediate comment.

Owen said the jacket, which appears to be stained with perspiration and blood, may have been worn by the assailant. Owen said that, since the trial, a witness has identified the jacket as one worn by Busby’s uncle.

That man, now dead, reportedly was seen stalking Busby at a party shortly before her murder.

Skinner has had at least two execution dates set. Last November, the Texas Court of Criminal Appeals issued a stay to ascertain how revised laws regarding such testing may apply to his case.

Skinner has endeavored for more than a decade to obtain DNA testing of seemingly important evidence gathered at the crime scene.

Once a Gray County district court approves the proposed joint order, agencies or entities possessing items to be tested will have five days to send them to the Texas Department of Public Safety laboratory in Austin.

TEXAS – APPEALS COURT REJECTS CLAIM OF TEXAS DEATH ROW’S BROWN

June 12, 2012 Source : Execution Watch

NEW ORLEANS — A federal appeals panel Tuesday rejected an appeal by Texas death row prisoner Arthur Brown Jr.

The U.S. Fifth Circuit Court of Appeals rejected Brown’s assertion that his trial attorneys failed to uncover and present sufficient mitigating evidence at the punishment hearing where he was ordered put to death.

“Brown’s claims are not adequate to proceed further,” the U.S. Fifth District Court of Appeals said in denying Brown’s request for permission to continue in the appeals process.

He was convicted in a 1992 drug-related quadruple homicide in Houston.

The U.S. Fifth Circuit, one of 13 federal court districts, encompasses Texas, Louisiana and Mississippi.

Full text of the ruling is at http://www.ca5.uscourts.gov/opinions/pub/11/11-70012-CV0.wpd.pdf

TEXAS – State Backs DNA Testing for Hank Skinner

June 1, 2012 Source :http://www.texastribune.org

Reversing its decade-long objection to testing that death row inmate Hank Skinner says could prove his innocence, the Texas Attorney General’s office today filed an advisory with the Texas Court of Criminal Appeals seeking to test DNA in the case. 

“Upon further consideration, the State believes that the interest of justice would best be served by DNA testing the evidence requested by Skinner and by testing additional items identified by the state,” lawyers for the state wrote in the advisory.

Skinner, now 50, was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.

Rob Owen, co-director of the University of Texas at Austin’s Capital Punishment Clinic, said he was pleased the state “finally appears willing to work with us to make that testing a reality.”

The details of the testing, he said, will still need to be arranged to ensure the evidence is properly handled and identified.

“Texans expect accuracy in this death penalty case, and the procedures to be employed must ensure their confidence in the outcome,” he said in an emailed statement. “We look forward to cooperating with the State to achieve this DNA testing as promptly as possible.”

State lawyers have opposed testing in the case, arguing that it could not prove Skinner’s innocence and that it would create an incentive for other guilty inmates to delay justice by seeking DNA testing. Today, though, the state reversed its course and has prepared a joint order to allow the tests.

Since 2000, Skinner has asked the courts to allow testing on crime scene evidence that was not analyzed at his original trial, including a rape kit, biological material from Busby’s fingernails, sweat and hair from a man’s jacket, a bloody towel and knives. Owen told the Texas Court of Criminal Appeals last month that if DNA testing on all the evidence points to an individual who is not Skinner, it could create reasonable doubt about his client’s guilt. 

The advisory comes a month after that hearing before the Texas Court of Criminal Appeals, in which the judges on the nine-member panel grilled attorneys for the state about their continued resistance to the testing even after a spate of DNA exonerations in Texas. In Texas, at least 45 inmates have been exonerated based on DNA evidence.

“You really ought to be absolutely sure before you strap a person down and kill him,” Judge Michael Keasler said at the May hearing.

State Sen. Rodney Ellis, D-Houston, praised the Texas Attorney General’s move on Friday. Legislators last year approved a bill that Ellis wrote amending the state’s post-conviction DNA testing law to allow for such analysis in cases like Skinner’s. Under the measure, inmates can obtain testing even in instances where they had the chance to test the DNA at trial but did not do so and in cases where the DNA was tested previously but new technology allows for more advanced testing.

In Skinner’s case the state had long argued that he should not be allowed to test the DNA evidence because he had the opportunity to do so at his trial but chose not to. He sought testing again after the DNA measure was approved last year.

“Now we will have certainty in the Skinner case because we will have analyzed all the evidence,” Ellis said in a statement. “There should be no lingering questions in capital cases.”

TEXAS – 5th Circuit sends death case back to local judge – Anthony Bartee

May 31, 2012 Source : http://www.mysanantonio.com

Update

The 5th U.S. Circuit Court of Appeals has asked a lower court judge to rule on whether the testing of DNA evidence ordered by the Bexar County district attorney’s office in death row inmate Anthony Bartee‘s case now makes moot Bartee’s claim that the office violated his civil rights.

Bartee, on death row since 1998 for the robbery and shooting death of David Cook, 37, won a stay of execution May 2 just hours before he was set to die by lethal injection.

Chief U.S. District Court Judge Fred Biery granted the stay after Bartee’s lawyer, David Dow, filed a federal civil rights lawsuit against the district attorney’s office, saying they violated Bartee’s rights by not releasing evidence for testing.

The county appealed Biery’s ruling for a stay to the 5th Circuit. However, the county also submitted for testing the evidence Dow sought to have released.

Because of that, the 5th Circuit ruled on Tuesday to send the case back to Biery for the purpose of answering whether the testing makes Bartee’s claim irrelevant.

No information was available on when Biery might rule on the case.

Rico Valdez, with the Bexar County district attorney’s office, said they plan to finish the testing.

No new execution date has been set for Bartee.

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TEXAS – Texan gets death penalty in baby sitter slaying – Kimberly Cargill

June 1, 2012 Source : http://www.chron.com

TYLER, Texas— An East Texas woman has been sentenced to death for the 2010 killing of her mentally challenged baby sitter.

A jury in Tyler on Thursday night decided the penalty for 45-year-old Kimberly Cargill of Whitehouse.

Cargill on May 18 was convicted of capital murder in the death of Cherry Walker.

Walker had faced testifying against Cargill in a child custody dispute. The victim’s burned body was discovered along a road.

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TEXAS – Man on death row for Houston slaying loses appeal – Jamie McCoskey

May 30, 2012  Source : http://www.chron.com

HOUSTON — A federal appeals court has rejected an appeal from a Texas death row inmate condemned for the slaying of a Houston man abducted from his apartment and fatally stabbed more than 20 years ago.

Attorneys for 47-year-old Jamie McCoskey contended instructions to the jury at his 1993 trial were improper. The 5th U.S. Circuit Court of Appeals late Tuesday rejected the claims, moving McCoskey closer to execution for the death of 20-year-old Michael Dwyer. Dwyer’s fiancé also was abducted and taken to an abandoned Houston home where Dwyer was killed and she was raped. She later identified McCoskey as the attacker.

McCoskey already had been convicted of kidnapping in Travis County, was a two-time parole violator and was released from prison six months before the November 1991 abductions and slaying.

TEXAS – Decision adds to scrutiny of death penalty cases – Anthony Bartee

May 26, 2012 Source : http://www.mysanantonio.com

At 3:25 a.m. on May 2, Anthony Bartee was eating breakfast, not knowing if it would be his last.

That evening, Bartee, 55, was to be strapped to the gurney in the death chamber in Huntsville for the 1996 robbery and slaying of his friend David Cook, 37.

Bartee’s attorney David Dow started his day scrambling to get his client a second stay — the first was granted within a week of Bartee’s original Feb. 28 execution date. In addition to the usual appellate route, Dow took an atypical one.

He filed a federal lawsuit against the Bexar County district attorney’s office, claiming that Bartee’s civil rights were violated by prosecutors withholding evidence for DNA testing that could prove his client’s innocence.

The DA’s office doubted the attempt would work because Bartee had 15 years to make evidence claims. And besides, he wasn’t convicted based on DNA. But with Bartee’s death imminent, Chief U.S. District Judge Fred Biery granted the temporary stay to allow more time to examine Dow’s civil rights claims.

The ruling was rare, experts said, and speaks to an ever-increasing scrutiny of death penalty cases as exonerations from post-conviction DNA testing continue to mount.

“The courts are more cautious, and most people think they should be if there is a question about it,” said Cornell University Law School Professor John H. Blume.

Juries, too, are handing down fewer death sentences, nationwide and locally.

Local prosecutors have noted the trend and are taking a harder look at whether to seek death.

“We don’t go get the death penalty just because we can,” First Assistant District Attorney Cliff Herberg said. “It’s a very serious decision-making process.”

Dow did not return phone calls or emails.

A majority of Texans, 73 percent, either strongly or somewhat support the death penalty, according to a University of Texas at Austin and Texas Tribune poll published Thursday. The number drops to 53 percent when asked about the option of life without parole.

A majority of Americans also support the death penalty, according to a 2011 Gallup Poll. But at 61 percent, that support is at its lowest point in 39 years, the poll concluded.

Since the state adopted life without parole in 2005 as an alternative to death, it “definitely changed the dynamics” in Bexar County, Herberg said.

Exonerations also have affected the entire criminal justice system, including jurors who must decide if someone lives or dies, said John Schmolesky, a professor at St. Mary’s University School of Law.

“I think it’s moved the pendulum to at least introduce an element of skepticism in capital cases,” Schmolesky said.

The last death sentence in Bexar County came in 2009, a year when only one person was condemned to die although prosecutors had sought the death penalty more often than that.

Given that at least 24 people were sentenced to die in the 11-year period that ended in 2006, Bartee being one of them, that’s a dramatic decrease.

Death sentences in the United States also have dropped, by 65 percent in the past 12 years, with 78 handed down last year, compared with 224 in 2000, according to the Death Penalty Information Center.

Prosecutors here, in deciding whether to seek the death penalty, weigh the cost of the litigation, the circumstances of the crime and the accused killer’s history of violence, among other factors, Herberg said.

“The future danger aspect of it has always been an issue with the jury,” he added. “If they can’t get out of prison, (communities) are safer.”

Bartee’s own violent past wasn’t known to Cook, his friends or family.

He was sent to prison for raping at knifepoint a girl, 15, and a woman, 20, in separate incidents in 1983, according to court records. At the time Cook was killed, Bartee had been out on parole for only 15 months.

The DNA factor

At 9:35 a.m. on May 2, Bartee was eating lunch and visiting with family. His father and sister planned to witness his execution. So did the father, two sisters and brother-in-law of Cook.

n San Antonio that day, district attorney’s office investigator George Saidler, a retired homicide detective who worked on Cook’s case, was searching the police property room for glasses and cigarettes collected 16 years ago from Cook’s house.

What prompted him was Dow’s new request for DNA evidence testing. Prosecutors needed to know if authorities still had the evidence, especially if a court ruled in Bartee’s favor.

Biery’s decision to stay the execution was a move in the right direction, said civil rights attorney Jeff Blackburn, who heads the Innocence Project of Texas.

“We have to err on the side of finding out every fact that we can,” he said. “I think that if we’ve learned anything, it’s that it’s hard to trust the government when they say (DNA’s) not involved in this case.”

Nationwide, DNA testing has been instrumental in exonerating more than 280 people, the majority in the past 12 years. Of those, 17 spent time on death row, according to The Innocence Project.

Still, that’s just a fraction of the more than 2,000 people falsely convicted in the past 23 years, according to the first national registry of its kind, which was released last week.

In response to the growing number of exonerations and advances in DNA testing technology, the Texas Legislature made changes regarding DNA evidence that could help someone wrongly convicted prove their innocence.

Two changes occurred late last year. Lawmakers made it less difficult for someone convicted to get DNA testing introduced in court. Also, judges now have the power to order that DNA profiles be sent through national and state databases, presumably to find out whether someone else committed the crime.

Bartee, so far, has benefited from the new laws.

“I think you do see the courts are saying, no matter what let’s test it,” Herberg said. “We’re certainly seeing that. That’s the reason for this delay (in Bartee’s case).”

The new evidence laws have ushered in debates about what to test and when. Advocates of testing argue that every avenue needs to be explored, while some prosecutors contend that more DNA testing can be used as a stalling tactic.

“DNA evidence isn’t the silver bullet that’s going to solve every single case,” Schmolesky said. “If the (person) admits he was present, he may have left fingerprints, saliva on cups for example, or things that result in DNA testing but don’t show he committed a crime.”

Local prosecutors haven’t wavered in their belief that further testing for Bartee’s case is a waste of time.

“He wasn’t convicted with DNA evidence but by his own behavior,” Assistant District Attorney Rico Valdez said.

A cautious approach

At noon on May 2, Bartee finished visitation. He was transferred that afternoon from death row in Livingston to Huntsville. He had his final meal before his scheduled 6 p.m. execution and waited to see if Biery’s stay would be overturned.

Just after 7 p.m., when the 5th Circuit Court of Appeals stayed Bartee’s execution, he thanked his family, his supporters, God and his legal team.

With the execution stalled, prosecutors also opted for caution. They sent for testing the glasses and cigarettes Saidler had found in the property room, though no court had ordered it.

They didn’t want lingering unanswered questions about a conviction, if it could be helped.

“We don’t want anyone thinking we just want someone executed,” Valdez said.

Last week the Bexar County crime lab’s testing found on the evidence the DNA of three people — two men and one woman so far unidentified. The results will now be sent through the state and federal databases. As prosecutors hunt for DNA matches, the civil rights case lingers in federal court.

To Valdez, the results so far haven’t changed a thing.

And almost three months to the day Bartee was first scheduled to die, he remains on death row with no new execution date set.

 

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