Texas Court of Criminal Appeals

TEXAS – Death row inmates loses appeal – Jerry Duane Martin

NOVEMBER 2, 2012 http://itemonline.com

The Texas Court of Criminal Appeals has upheld the conviction of an inmate sentenced to death for the murder of a Texas Department of Criminal Justice employee during an attempted escape from a Huntsville prison in 2007.

A jury found Jerry Duane Martin, 42, guilty of capital murder in 2009 for the death of correctional officer Susan Canfield. Martin used a stolen truck to ram a horse Canfield was riding while trying to prevent him and John Ray Falk Jr. from escaping from the Wynne Unit on Sept. 24, 2007.
Canfield was thrown from the horse and died as a result of head injuries she sustained when she struck the windshield of the truck and fell to the ground.
Jury selection is under way in Bryan for Falk’s capital murder trial for his role in Canfield’s murder. He is also facing the death penalty. Attorneys for the state and defense are interviewing potential jurors. More than 200 Brazos County residents were summoned and the process is expected to take a couple of more weeks.
The Court of Appeals on Wednesday rejected Martin’s appeals, which contained 20 points of error during his trial three years ago. Among those, Martin’s attorneys alleged jury misconduct and that Martin should have been granted a new trial.
The defense argued Martin was denied an impartial jury because one juror withheld information that her family member worked for TDCJ when her husband had been a correctional officer for 18 months and had been stabbed by an inmate. The juror testified during a motion for a new trial that this did not influence her because it happened 17 years ago and her husband had said that he did not think the incident was a “big deal.”
Martin’s attorneys also noted that two other jurors were admitted to the jury who had ties to the Texas prison system. One had formerly worked at the Limestone County Detention Center and the other had been married to a man who was a correctional officer for 20 years.
The appeals court did not see any reason to overturn the trial court’s ruling and issued this opinion: “After reviewing appellant’s 20 points of error, we find them to be without merit. Consequently, we affirm the trial court’s judgment and sentence of death.”
Walker County grand jury indictments
A grand jury handed down the following indictments last week:
• Joe A. Thomas, illegal dumping commercial weight/barrel or drum.
• Juvenal Pimentel, possession of a controlled substance point grade one less than one gram.
• Willie Ray Shelton, possession of a controlled substance point grade two more than or equal to four grams but less than 400 grams.
• Christopher Tyrone Cooper, possession of a controlled substance point grade one less than one gram.
• Jerry W. Williams, driving while intoxicated third or more.
• Robert Cartwright, indecency with a child sexual contact.
• Angela Lee Morris, possession of a controlled substance point grade one more than or equal to one gram but less than four grams.
• Christopher Fazio, fraud possession of a controlled substance/prescription schedule I/II.
• David Karl Schneider, possession of a controlled substance point grade one less than one gram.
• Anthony Lamont Person Jr., possession of marijuana more than four ounces but less than five pounds.
• Kourtnae White, driving while intoxicated third or more.
• Jacqualine Christine Hardy, two counts of driving while intoxicated third or more.
• Shelton Bernard Hightower, possession of a controlled substance point grade one less than one gram.
• Leah Taylor Yeley, credit card or debit card abuse.
• Michael Quinn Sykes, credit card or debit card abuse.
• Robert Lee Austin III, credit card or debit card abuse.
• Kristin Winfrey, driving while intoxicated third or more.
• Christopher Damon Stuart, burglary of a building

TEXAS – Death Row inmate didn’t commit murders, witnesses say – Lester Leroy Bower,

October 29,2012 http://www.star-telegram.com

SHERMAN — In a day of dramatic testimony Monday, two women implicated a gang of drug dealers in the 1983 slaughter of four men in a Grayson County airplane hangar.

After 29 years on Texas’ Death Row for the crimes, Lester Leroy Bower, who was a chemical salesman living in Arlington when he was arrested, hopes their accounts will help him win his freedom, or at least a new trial.

One of the women, identified in court as Witness No. 1, said her boyfriend told her that he participated in the killings on the October night they happened.

“He said he and his friends had gone there for a drug deal,” the witness said. “It didn’t go right and they had to kill some people.”

The boyfriend was identified in court as Lynn. Others in the gang were identified as Bear, Ches and Rocky, part of a methamphetamine ring operating in southern Oklahoma at the time, she said.

Several days after the killings, the woman testified, she heard Lynn and Ches discussing it.

“Ches was laughing, telling Lynn, ‘Did you see the guy’s face when you shot him in the head?'” the witness testified. “Lynn said, ‘I had to shoot him. He was running for the door.'”

The witness, who said she was the mother of a slaying victim, said she went to Bower’s defense lawyers in 1989 after learning that Bower had been convicted and faced the death penalty.

“As the mother of a homicide victim, I know how important it is to make the right person pay for what they did,” the witness testified. “I don’t believe Mr. Bower is that person.”

Bower’s lawyers have filed an appeal with the Texas Court of Criminal Appeals, arguing that new evidence points to the innocence of their 64-year-old client, the fourth-oldest man on Death Row. The appellate court ordered state District Judge Jim Fallon to hold this week’s hearing in Sherman, in part to build a record of testimony that can be used later in a decision on Bower’s fate.

Bower, a graying man dressed in orange prison coveralls, also testified Monday, the first day of the hearing.

The condemned man, who did not take the stand at his 1984 trial, denied killing the men but said his own lies contributed to his conviction. Bower admitted lying repeatedly to investigators to try to steer clear of the case, and to his wife, fearing that she would have been upset by his secret purchase of an ultralight aircraft.

Bower said he bought the aircraft from the victims shortly before they died.

“This is my doing,” Bower said Monday. “I’m responsible for my actions, my trying to stay out of this and lying to authorities. Lying to my wife, that’s probably where this started.”

Monday was the first time the testimony of Bower and other defense witnesses had been heard in state court. When Bower was sentenced to die, state law specified that new evidence could not be presented unless it had been discovered within 30 days of the conviction. That law has changed.

Some time after this week’s hearing, Fallon is expected to issue a ruling that could suggest upholding the conviction, recommend that Bower be released, or recommend a new trial. Ultimately, the Texas Court of Criminal Appeals will decide the case.

Grayson County prosecutors have vigorously contested alternate theories presented by the defense, saying Bower was convicted on the basis of strong circumstantial evidence. That included Bowers’ repeated lies to FBI agents and that he was known to have owned a firearm and exotic ammunition similar to that used in the crimes. Additionally, parts of the ultralight aircraft were discovered in his home.

The victims — Bob Tate, Philip Good, Jerry Mack Brown and Ronald Mayes — were found shot to death in a hangar five miles from Sherman, the Grayson County seat.

During Monday’s hearing, friends and relatives of the victims sat on one side of the crowded courtroom, supporters of Bower on the other. Robbie Dutton, Brown’s widow, listened from the first row, just behind the prosecution table.

“Just rehashing, you know,” she said of her feelings after Monday’s testimony concluded. “We’re not wanting him to be punished for something he didn’t do, but the evidence presented in 1984 was so damning.”

Nothing she heard Monday changed her belief in Bower’s guilt, she said.

“It’s hard to hear all of this again,” Dutton said.

Witness No. 1 testified that she was told of the killings hours after they occurred, while she and Lynn drove through Sherman.

“When he told me about all this, it was like my whole world shifted at that point,” she said. “It was like I just stepped into a TV movie.”

She also described her boyfriend’s behavior in the days after the killings.

“He would have a hard time sleeping,” she said. “He would have nightmares. He would be up pacing. He said he could see the man’s eyes he shot and he could hear the noise reverberating off the tin building.”

The second witness, identified as Witness No. 5, said she was the wife of Bear, who died of cancer five years ago. She testified that several times she heard her husband and the other men talk about a shooting in an airplane hangar in which four men were killed.

“I believe they committed the crime, yes,” she said.

Grayson County prosecutor Kerye Ashmore attacked the credibility of both women, citing their heavy drug use at the time of the slayings, and in the case of Witness No. 1, a felony conviction for forgery.

Bower also faces what likely will be a vigorous cross-examination as the hearing resumes today.

On Monday, Bower described meeting the men in the hangar and paying $3,000 cash as a down payment for the ultralight. But he hid his purchase.

“I was concerned how my wife would react,” Bower said. “I was quite sure she would not have approved.”

He said he was stunned and frightened when he heard of the slaughter a few days after it happened. The following January, FBI agents tracked Bower down through telephone records of his calls to one of the victims. When questioned, he said, he admitted inquiring about the aircraft but did not say he had visited the crime scene.

“Once I headed down the proverbial bad path, I kept on going,” Bower said. “I told them the same lie.”

 

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 – Appeals court race highlights statewide campaigns

october 19,2012 http://www.sfgate.com

In 2010, Texas Court of Criminal Appeals Presiding Judge Sharon Keller faced discipline for closing the courthouse just as a death row inmate was trying to file an appeal, and she was fined $100,000 for not disclosing more than $2 million in property and income on her personal financial statements.

The discipline in the death penalty case was later tossed on appeal, and Keller has appealed the ethics fine. But it’s those blemishes on the Republican’s career that Democratic defense attorney Keith Hampton hopes will propel him to win Keller’s seat in November and break the GOP’s hold on the state’s highest court for criminal cases.

“She’s banking on nobody noticing,” Hampton said, noting the $100,000 fine remains the largest in the history of the Texas Ethics Commission.

Keller did not respond to repeated telephone and e-mail requests for an interview.

Keller was hauled before the state Commission on Judicial Conduct for ordering the court shut at 5 p.m. on Sept. 25, 2007, which lawyers for condemned killer Michael Richard said blocked them from filing a last-minute appeal. Richard was executed that night for the rape and slaying of a Houston-area nurse who had seven children.

Keller faced removal from the bench, but the commission instead issued a “public warning,” one of the least severe sanctions at its disposal, while criticizing her for casting “public discredit on the judiciary.”

Keller appealed, and got the ruling dismissed by a special court of review, which said the commission had overstepped its legal authority.

In 2010, she said, “”What happened to me shouldn’t happen to any judge” and called the “Killer Keller” nickname death penalty opponents have her was hurtful and uncivil.

Hampton says the death penalty case and the ethics fine show a judge who is indifferent to justice in the death penalty, and willing to ignore the law to protect her own finances. Keller filed corrected financial disclosure forms, saying the failure to disclose was merely a mistake.

Keller was first elected in 1994. She had plenty of practice filing the forms, Hampton said.

“I fill out those papers, too,” Hampton said. “They go on and on about bonds, stocks and property. I don’t know how you miss that.”

Hampton is a criminal defense attorney who has appeared for the 9-member court in death penalty cases. He says his experience handling capital punishment cases at every level, from the trial court to the U.S. Supreme Court, give him a unique perspective on the gravity surrounding life-and-death issues before the court.

“The result does matter. Innocence should matter. Guilt should matter. Life or death should not be indifferent,” Hampton said.

In a 2010 interview with The Associated Press, Keller said her critics ignore her work chairing a task force that provides legal aid for the indigent, and another that ensures offenders with mental illness receive proper treatment.

Keller said then she expected the ethics issues to be raised during her 2012 reelection campaign.

“I can deal with it,” she said.

There are other statewide races on the ballot Nov. 6.

Court of Criminal Appeals Judges Barbara Parker Hervey and Elsa Alcala are running for new terms. Both are Republican who did not draw Democrat opponents.

The nine-member state Supreme Court has three seats up for election, with Republican incumbents Don Willett (Place 2) and Nathan Hecht (Place 6) running for new six-year terms.

Hecht, first elected in 1988, is the longest-serving member of the court with a reputation as one of its intellectual leaders. He has drawn Democratic opponent Michele Petty, a San Antonio attorney, who has made an issue of a $29,000 ethics fine levied against Hecht in 2007 for an illegal campaign contribution. Hecht appealed and the case is still pending.

Willett, who has served on the court since 2005, did not draw a Democratic opponent.

Former state district judge John Devine of Houston, who got attention for fighting to keep the Ten Commandments on display in his courtroom, is on the ballot in Place 4 after he defeated incumbent Justice David Medina in the primary. Devine did not draw a Democratic opponent in the general election.

The state Railroad Commission, which regulates oil and gas, has two places on the ballot.

In the open seat in Place 1, Republican Christi Craddick, an oil and gas attorney, party activist and daughter for former House Speaker Tom Craddick, faces Democrat Dale Henry, a licensed petroleum engineer and former Mills County commissioner for the six-year term.

Craddick says it is important that state encourage drilling and energy development and protect the industry from overreaching federal regulations. State officials and energy companies have been fighting federal agencies over myriad issues in recent years, from the proposed Keystone XL Pipeline to the environmental impact of the oil and gas drilling process called fracking.

Henry says he supports drilling, including fracking, but believes oil and gas companies are polluting the state’s land and water. Henry says he will fight for strict enforcement of environmental protections laws. The race has also drawn Libertarian candidate Vik Wall and Green Party candidate Chris Kennedy.

Commissioner Barry Smitherman, appointed by Gov. Rick Perry, is running to fill the rest of his unexpired term in Place 2. Smitherman is a former chairman of the Public Utility Commission and led that agency in 2008 when the state pledged billions of dollars to boost wind energy. He says energy companies should be encouraged to explore and drill. Smitherman did not draw a Democratic opponent.

TEXAS – Man Condemned For Wife, Child’s Death Loses Appeal – GARY GREEN

October 5, 2012 http://houston.cbslocal.com

HOUSTON  — The conviction and death sentence of a Dallas man for fatally stabbing his estranged wife and drowning her 6-year-old daughter in a bathtub have been upheld by the Texas Court of Criminal Appeals.

Gary Green was sent to death row two years ago for the September 2009 slayings of Lovetta Armstead and her daughter, Jazzmen, at their home. Armstead was stabbed more than 25 times. One other child, a boy, was stabbed in the stomach. He survived.

Attorneys for the 41-year-old Green raised 46 points of error from his trial, including challenges to the sufficiency of the evidence against him, his confession and jury selection. The court this week rejected all of the claims.

Green could still pursue appeals in federal court. He does not have an execution date.

TEXAS – Yokamon Hearn – EXECUTION JULY 18, 2012 – URGENT ACTION FROM AMNESTY INTERNATIONAL

Picture of Offender

Name
TDCJ Number
Date of Birth
Hearn, Yokamon L. 999292 11/06/78
Date Received
Age (when Received)
Education Level
12/31/98 20 10 years
Date of Offense
Age (at the Offense)
County
03/26/98 19 Dallas

FROM AMNESTY INTERNATIONAL

URGENT ACTION
TEXAS SET TO KILL ANOTHER YOUNG OFFENDER

pdf file 
Yokamon Hearn is scheduled to be executed in Texas on the evening of 18 July for a murder committed in 1998, when he was 19 years old. His lawyers maintain that he has a mental disability that would render his execution unconstitutional.
Yokamon Laneal Hearn was sentenced to death for the murder of 23-year-old stockbroker Joseph Franklin (Frank) Meziere, committed in Dallas in March 1998. Frank Meziere was shot in the head 10 times after being abducted by four youths who wanted to steal his car. All four were charged with capital murder. According to the prosecution, Yokamon Hearn had fired six of the 10 shots while another of the suspects, Delvin Diles, had fired four. After the Hearn trial, the prosecution offered Delvin Diles a plea deal under which he would waive trial by jury and avoid the possibility of the death penalty. Delvin Diles, aged 18 at the time of the shooting, pleaded guilty to capital murder and was sentenced to life imprisonment in 1999. The other two co-defendants, aged 19 and 20 at the time of the crime, pleaded guilty to aggravated robbery and were sentenced to 10 years in prison.
In addition to Yokamon Hearn’s youth at the time of the crime – he was 19 years old – there is evidence that he has a
developmental mental disability. His lawyers assert that this impairment amounts to “mental retardation” and that his
execution would therefore be unconstitutional under the June 2002 US Supreme Court decision Atkins v. Virginia which prohibited the execution of offenders with such a disability. Yokamon Hearn’s “Atkins claim”, however, has run into the problem that he has achieved IQ scores higher than what is normally considered to be an indicator of “mental retardation”. His lawyers have obtained expert opinion that, despite his IQ scores, his disability nonetheless amounts to retardation and that he should still qualify for Atkins relief. The courts have disagreed.
In sworn statements given in 2006, Yokoman Hearn’s three co-defendants described him as a teenager in 1998 who was a follower not a leader. Their statements and other evidence of his conduct during and after the murder are
supportive of claims that his actions were those of an immature and impaired individual rather than the result of a planning and calculating intellect. Delvin Diles recalled that it had been his idea, not Hearn’s, to kill Frank Meziere. The other two recalled that before they went to commit robbery there had been no plan to kill anyone.
Since resuming executions in 1982, Texas has killed at least 70 people in its execution chamber who were aged 17, 18 or 19 at the time of the crimes in question. More than half of these teenagers were African American, of whom 70 per cent were convicted of crimes involving white victims. Yokamon Hearn is one of at least 40 prisoners now on death row in Texas for crimes committed when they were 18 or 19. More than half of them, like Yokamon Hearn, are black. Frank Meziere was white.


Please write immediately, in English or your own language, citing Yokamon Hearn’s Inmate No. #999292:
Explaining that you are not seeking to excuse the murder of Frank Meziere or to downplay the suffering caused;
 Noting evidence of Yokamon Hearn’s mental disability and that he was only 19 at the time of the crime;
 Opposing the execution of Yokamon Hearn and calling for his death sentence to be commuted.


PLEASE SEND APPEALS BEFORE 18 JULY 2012 TO:
Clemency Section, Texas Board of Pardons and Paroles
8610 Shoal Creek Blvd. Austin, TX 78757-6814, USA
Fax: 011 512 467 0945
Email: bpp-pio@tdcj.state.tx.us
Salutation: Dear Board members
Governor Rick Perry, Office of the Governor,
PO Box 12428, Austin, Texas 78711-2428, USA
Fax: 011 512 463 1849
Salutation: Dear Governor

ADDITIONAL INFORMATION
Yokamon Hearn was about 20 minutes from execution on 4 March 2004 when he was granted a stay by the US Court of Appeals for the Fifth Circuit to give the courts more time to consider his “Atkins claim”. In the Atkins ruling, the US Supreme Court had not defined mental retardation, although it pointed to definitions used by professional bodies. Under such definitions, mental retardation is a disability, manifested before the age of 18, characterized by significantly sub-average intellectual functioning (generally indicated by an IQ of less than 70) accompanied by limitations in two or more adaptive skill areas such as communication, self-care, work, and functioning in the community. The Court left it to the states as to how to comply with the ruling. Today, a decade after the Atkins ruling, the Texas legislature has still not enacted a law to comply with it. In the absence of such legislation, in 2004 the Texas Court of Criminal Appeals (TCCA) issued temporary guidelines. Success on Yokamon Hearn’s Atkins claim became less likely in 2006 when his IQ was assessed as high as 93.
However, his lawyers obtained expert opinion concluding that he had structural brain dysfunction, possibly as a result of Fetal Alcohol Syndrome caused by his teenage mother’s alcohol abuse during pregnancy with him, and that his impairment still amounts to mental retardation. In 2008, a US District Court concluded that Yokamon Hearn had made a prima facie showing of mental retardation. This federal judge eventually sent the case back to the Texas courts where in 2010 the TCCA ruled against Yokamon Hearn, while noting that the Texas legislature had, eight years on, failed to enact legislation to enforce the Atkins ruling. The TCCA said that, “without significantly greater assistance from the legislature” it would adhere to its 2004 guidelines, including the “about 70” language in relation to IQ, which it took to represent a “rough ceiling, above which a finding of mental retardation in the capital context is precluded”. The Fifth Circuit ruled against Hearn in January 2012, noting that the US Supreme Court had explicitly left it up to states as to how to comply with the Atkins ruling, and that “it would be wholly inappropriate for this court, by judicial fiat, to tell the States how to conduct an inquiry into a defendant’s mental retardation”.
In its 2005 ruling prohibiting the death penalty against anyone who was under 18 at the time of the crime (Roper v. Simmons) the US Supreme Court recognized the immaturity, impulsiveness, poor judgment and underdeveloped sense of responsibility associated with youth, as well as the susceptibility of young people to “outside pressures, including peer pressure.” The Court also acknowledged that “the qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Indeed, scientific research shows that brain development continues into a person’s 20s. In 1993, in the case of a Texas death row prisoner who was 19 at the time of the crime, the Supreme Court had emphasised that: “youth is more than a chronological fact. It is a time and condition of life when a person
may be most susceptible to influence and to psychological damage. A lack of maturity and an underdeveloped sense
of responsibility are found in youth more often than in adults… These qualities often result in impetuous and illconsidered actions and decisions.”
Before the Atkins ruling in 2002, Texas accounted for more executions of people with “mental retardation” than any other state in the USA. Before the Roper ruling in 2005, Texas accounted for more executions of people under 18 at the time of the crime than any other state. Texas accounts for some 37 per cent of the national judicial death toll, which currently stands at 1,296 since 1976 when the US Supreme Court allowed executions to resume under revised state laws. Amnesty International opposes the death penalty in all cases. Yokamon Hearn is scheduled to become
the 483rd person to be put to death in Texas since it resumed executions in 1982. There have been 19 executions in the USA so far in 2012, five of them in Texas.
For further information on Yokamon Hearn’s case, see ‘USA: Senseless killing after senseless killing: Texas inmate
with mental disability claim facing execution for murder committed as teenager’, June 2012,
http://www.amnesty.org/en/library/info/AMR51/042/2012/en
Name: Yokamon Laneal Hearn (m)
Issues: Death penalty, Legal concern
UA: 166/12
Issue Date: 7 June 2012
Country: USA

Related articles

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 – 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 : Judge: Overturn Cathy Lynn Henderson conviction, death sentence

May 23, 2012 Source : http://www.statesman.com

Cathy Lynn Henderson, once two days from execution for the 1994 death of an infant she was baby sitting, should have her murder conviction and death sentence overturned, a Travis County judge has recommended.

District Judge Jon Wisser said scientific discoveries into the nature of head injuries — and a change of heart from the prosecution’s star witness, former medical examiner Roberto Bayardo – means no reasonable juror would convict Henderson if presented the new evidence at trial.

“Testimony of the state’s chief experts was, at bottom, scientifically flawed,” Wisser wrote in findings dated May 14 and delivered to the appeals court Tuesday.

After reviewing new evidence via testimony and briefs, Wisser recommended that the Court of Criminal Appeals dismiss Henderson’s conviction and return her case to Travis County, where she may face “any indictment or charges” that prosecutors choose to pursue in the death of 3-month-old Brandon Baugh.

Henderson claimed that Brandon died after slipping from her arms and falling about four feet to the concrete floor in her Pflugerville-area home. She said she panicked, burying the boy’s body in a Bell County field before fleeing in Missouri, where she was found and arrested 11 days later.

The search for the boy’s body and hunt for Henderson dominated headlines in February 1994.

At Henderson’s 1995 trial, Bayardo testified that it was “impossible” to attribute the boy’s extensive head injury to an accidental fall. The only explanation, he said, was a deliberate and forceful blow struck by Henderson, adding that Brandon would have had to fall “from a height higher than a two-story building” to sustain a similar injury.

But in a 2007 affidavit and in testimony before Wisser, Bayardo said recent advancements in the understanding of pediatric head injuries indicates that relatively short falls onto a hard surface could produce similar injuries to those he found on Brandon during a 1994 autopsy.

“Based on the physical evidence in the case,” Bayardo said, “I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh’s injuries resulted from an intentional act or an accidental fall.”

Bayardo, now retired, also said his autopsy report, which concluded that the child was a homicide victim, would today list the manner of death as undetermined “because of the new information” about pediatric head injuries.

The Court of Criminal Appeals will determine whether to accept Wisser’s recommendation. It can rule on his submission, request further briefing or schedule oral arguments. A final decision on Henderson’s fate is likely to be months away.