[Deathpenalty]death penalty news----TEXAS

[Rick Halperin]

June 1


TEXAS:

Court of inquiry to investigate Houston's police crime lab


A judge today granted a motion to convene a court of inquiry that will
investigate the scandal involving the Houston Police Department crime lab.

Although the ruling this morning by state District Judge Jan Krocker dealt
only with the issue of whether a former crime lab official committed
perjury, attorneys who had sought the court of inquiry are hoping that it
will be used to examine the criminal justice system in Harris County.

Krocker made her decision after hearing evidence that Jim Bolding, former
chief of the crime lab's DNA division, committed aggravated perjury in a
sexual assault trial and unduly influenced the jury, which found the
defendant guilty.

She stressed, however, that Bolding has not been charged or convicted of a
crime and should be considered innocent until proven guilty.

Bolding retired under pressure in the summer of 2003.

Krocker's ruling means that Olen Underwood, presiding judge for the Harris
County Judicial District, will have the power to appoint a judge to
oversee the court of inquiry. Underwood could, however, reject Krocker's
request to do so.

Although the ruling addressed only the matter of whether Bolding had
perjured himself, Underwood will decide whether the court should confine
its scope to that question or examine other criminal justice issues, as
well.

Attorneys who urged creation of the court of inquiry said they hope a
special prosecutor from outside the Harris County District Attorney's
Office will be appointed to the court.

Representatives of the District Attorney's Office argued that Bolding did
not commit perjury and that no court of inquiry is needed.

(source: Houston Chronicle)

********************

Murder suspect ruled not competent


A 24-year-old Palestine man charged with capital murder in the December
2002 shooting death of a local cab driver was ruled mentally incompetent
to stand trial Friday afternoon.

Lamond Tyrell Johnson, 24, of Palestine was 1 of 3 local men charged in
the Dec. 13, 2002 murder of Mark Edwin Gaudin, a 30-year-old part-time cab
driver, on a deserted county road north of the city limits.

Authorities do not believe Johnson fired the 2 shots that killed Gaudin
off of CR 363 near the Blackshear Cemetery, but contend the man was
present and participated in the murder.

Following a day-long hearing featuring the testimony of 3 mental health
experts, Third State District Judge Jim Parsons ruled that Johnson was
incompetent to stand trial.

Among those testifying Friday were Dr. Allen Childs, chief psychiatrist
with Vernon State Hospital; Dr. Susan Chung, a psychologist with Vernon
State Hospital; and Dr. Kelly R. Goodness, a psychologist in private
practice in Dallas.

Johnson, who previously had been incarcerated in the Anderson County Jail,
was released into the custody of Vernon State Hospital officials on Feb.
26 and has remained there the past 3 months.

By virtue of Friday's court ruling, Johnson will return to the Vernon
facility where he will continue to be treated and receive rehabilitation
services.

Johnson can be tried on the capital murder charge when and if he is
eventually found to be competent, Anderson County District Attorney Doug
Lowe said following Friday's ruling.

"That's an indefinite commitment," Lowe said, "but the court can ask for
an evaluation intermittently."

While two experts testified Friday that they believed Johnson was
incompetent to stand trial, Chung was in the minority.

Chung testified Friday by telephone that she believed Johnson understood
the charges against him and "potential punishment" for the crime.

At one point, Chung testified that Johnson told her "he might get the
needle."

When local attorney Stephen Evans, the lead attorney for Johnson, asked
Chung what she felt this response meant, the psychologist answered, "He
(Johnson) reported that the needle would mean death. He knew it was a
possibility."

Local attorney Jeff Herrington has been appointed as co-counsel to
represent the defendant who has been classified as mentally retarded.

Although there was some temporary confusion Friday, Lowe said the state
was no longer seeking the death penalty against Johnson due to a U.S.
Supreme Court decision banning the execution of mentally retarded
offenders.

"He's mentally retarded, and the state's not seeking the death penalty,"
Lowe responded to the court after Evans had appeared unclear on the
state's position on the issue.

"And won't seek the death penalty?" Parsons asked.

"That's correct, your honor," Lowe answered.

22-year-old Kenneth Johnson, the younger brother of Lamond Johnson, has
been adjudicated in the case, pleading guilty to the lesser charge of
murder last November.

Kenneth Johnson, whom authorities have said fired the 2 shots which
fatally wounded Gaudin, was spared the possibility of facing the death
penalty after being found "mildly mentally retarded" this past fall.

Kenneth Johnson is now serving a life sentence for murder in the Texas
Department of Criminal Justice and will be eligible for parole after 30
years.

The 3rd defendant in the case, Leroy Junior Gaines Jr., 27, also of
Palestine, remains in the Anderson County Jail and has yet to be
adjudicated on the charge.

Lowe said Friday his office hopes to try Gaines in the fall.

(source: Palestine Herald Press, May 29)

*************************

Boy, 17, held in deaths of pair


A 17-year-old boy accused of killing a former Valley City, N.D., couple
faces the death penalty in Killeen, Texas.

The Bell County district attorney's office charged Kyle Wade Green with 2
counts of capital murder Friday for the deaths of Gary Ridley and Sheria
Lunde of Belton, Texas.

Friends and neighbors hadn't seen the pair since April 26. Police
discovered their bodies May 14 in a field near the Killeen Municipal
Airport, according to Carroll Smith, public information coordinator for
the Killeen Police Department.

Ridley's body was positively identified by fingerprints at the Southwest
Institute of Forensic Sciences in Dallas. The other body has been
tentatively identified as Lunde's, Smith said.

Ridley, 35, was born in Seattle and moved to Valley City at age 11,
according to his obituary.

Ridley attended Valley City High School but didn't graduate from there,
Principal Kim Knodle said Monday. He was active in sports, especially
football, his obituary said. He had been working as a carpenter.

Lunde, 33, was the daughter of John and Judy Northridge of Valley City.

A preliminary autopsy report said both victims died from a single gunshot
wound to the head.

Authorities also are trying to link Green to two more bodies found
Wednesday in the same vacant field near the airport, KWTX-TV reported.

Police arrested Green a week ago as he was driving a truck belonging to
Ridley, the TV station reported. The vehicle had been used in a gasoline
theft May 3 in Pflugerville, Texas, about 65 miles southeast of Killeen.

Green was held for unauthorized use of a motor vehicle until the murder
charges were filed Friday. He remains in custody in the Bell County Jail
on $5 million bail.

(source: The Forum)

************************************

Pardoned by Satan----If Texas can't kill the insane, where will the
madness end?


Excerpt of a letter from Kelsey Patterson

"Statement to what? State what? I am not guilty of the charge of capital
murder. Steal me and my family's money. My truth will always be my truth.
There is no kin and no friend; no fear what you do to me. No kin to you,
undertaker. Murderer. Go to hell. Get my money. Give me my rights. Give me
my rights. Give me my life back." Kelsey Patterson's last words, May 18.

Thanks to Gov. Rick Perry, Texans can rest a little easier knowing we have
been protected, once and for all, from the future dangerousness of Kelsey
Patterson, the paranoid schizophrenic who went to his death in Huntsville
last week despite his belief that he had been granted an amnesty by Satan
himself. That was what he had told his attorney Gary Hart several years
ago in refusing to speak to him any more, on the grounds that Hart was
insufficiently versed in "Hell Law." Hart might have replied that Texas
law is certainly close enough a conclusion drearily reinforced by the
final days of Patterson's dismal journey on this earth.

It was not particularly remarkable that the state had deemed it necessary
to execute a madman we have done so before, and will certainly do so
again. But virtually unprecedented in Patterson's case was the
recommendation of the state Board of Pardons and Paroles, which voted
5-to-1 to ask the governor for a commutation, or at least a 120-day
reprieve. The BPP, which does not actually meet to discuss cases and
typically votes via fax, conventionally maintains a stolid silence on the
reasons for its decisions, but afterward one member former Harris Co.
prosecutor Linda Garcia acknowledged that she had recommended commutation
because of "concerns about some mental health issues that were present."
That is, as even Anderson Co. District Attorney Doug Lowe - the prosecutor
who secured Patterson's death sentence - admitted, Patterson is indeed a
schizophrenic. "But that doesn't mean a person isn't accountable for what
they do," Lowe said.

Unfortunately, that's exactly what it means, something even a prosecutor
should be expected to know.

Cruel and Quite Human The governor of Texas was unmoved by the board's
recommendation. That too was no surprise, especially Rick Perry's
reasoning that numerous courts had found "no legal bar" to executing
Patterson. That's long been the bipartisan refrain of Texas governors, who
have willfully misconstrued the explicit meaning of the clemency process,
which by definition is supposed to take into account extralegal mitigating
circumstances affecting a capital prosecution. That's why the governor is
given power that ordinarily resides solely in the judicial branch. The
U.S. Supreme Court has finally forced Texas to consider mental retardation
as a mitigating factor, but it will probably take many more executions and
federal decisions to force the state to consider mental illness.

On the contrary, Perry appeared to consider Patterson's schizophrenia an
argument in favor of execution. "Texas has no life without parole
sentencing option," the governor said, "and no one can guarantee this
defendant would never be freed to commit other crimes were his sentence
commuted. In the interest of justice and public safety, I am denying the
defendant's request for clemency and a stay." Yet even under the standard
40-year sentence, Patterson would not have been eligible for (unlikely)
parole until he was 78.

Perry's intransigence would be easier to understand if he had lifted a
finger to support life-without-parole legislation, narrowly defeated in
the 2001 Legislature. As is the case with so many issues, his office says,
"He's always encouraged the Legislature that that debate would be an
important one to have." Asked if the governor's decision overruling his
own parole board appointees reflects the position that mental illness
cannot be a mitigating factor in capital cases, spokesman Robert Black
said, "The governor believes the process in place has worked. The Board of
Pardons and Paroles made its recommendation he just disagreed with that
recommendation. It's part of the process."

It's worth remembering that Patterson's mind had broken down long before
the murder in Palestine of Louis Oates and Dorothy Harris, and that crime
in fact turned out to be his admission ticket into the state's standard
treatment program for mental illness: permanent incarceration. He had been
diagnosed with schizophrenia a decade before the murders, but when his
family tried to get him help even in the weeks before the murders they
were told that unless he turned violent, there was nothing the authorities
could do. In that light, Patterson's crime might be considered a sort of
extreme self-therapy. Usually, of course, the mentally ill are much more
of a danger to themselves than others, and much more likely to be victims
of crime than perpetrators.

Welcome to the Slaughterhouse Patterson's case is hardly unique. Larry
Robison, executed in January 2000, and James Colburn, executed in March
2003, were both long-diagnosed schizophrenics when they committed their
crimes, and the families of each had sought state help, in vain. Scott
Panetti, who received a stay in February, will most likely be the next
schizophrenic with a similar history to be executed by the state of Texas.
It's even arguable that for inmates like Patterson or Panetti in the Texas
prison system, a death sentence is more merciful than the alternative it
represents more attention and treatment than they're likely to get
otherwise.

Under current historical circumstances, it might seem quixotic to object
to the retail execution of a handful of hapless madmen by the state of
Texas, when the national government is freely exercising its power to
invade, make war, hold hostage, starve, torture, or simply slaughter
thousands of people under flimsily manufactured imperial pretenses and
romantically neo-fascist slogans like "shock and awe." But it is the
peculiar logic of capital punishment that, arbitrary and random and
grotesquely administered as it is, upon it rests the entire authority of
the state over life and death. Every time the state of Texas plucks one
sane or insane person from among us, straps him down, and injects the
poison, it restates the government's claim to absolute, idolatrous,
godlike power over human life.

And each time, unless we do what we can to raise our voices against that
power, we all wash our hands in the blood.

(source: Austin Chronicle)

*********************

The Price of Life


When Morris Moon and Jim Marcus present oral arguments today before the
5th U.S. Circuit Court of Appeals at a potentially precedent-setting
hearing in a death row case, the defense attorneys intend to raise a
number of thorny issues.

But the core underlying issue raised with Yokamon Laneal Hearn, Appellant
v. Doug Dretke, et al. is simple: Who's supposed to pay for legal battles
of the indigent, mentally retarded death row inmates, who concluded their
habeas proceedings before 2002, when the U.S. Supreme Court in Atkins v.
Virginia barred their executions? (Dretke is the director of the Texas
Department of Criminal Justice's institutional division.)

Moon and Marcus, both staff attorneys with the Texas Defender Service in
Houston, say advocacy for condemned, mentally retarded inmates who
exhausted their state and federal habeas proceedings before Atkins is a
laborious and expensive task.

That group of indigent inmates, the TDS lawyers say, never have been able
to raise Atkins claims because the precedent didn't exist when the state
was willing to pay for their defense. And the state isn't willing to pay
anymore, even though the Supreme Court intended for Atkins to stop all
executions of the mentally retarded.

Under the death row indigent defense system, revamped by the Texas
Legislature in 1995, a trial judge can pay out of state coffers as much as
$25,000 in attorney fees and expenses for a court-appointed lawyer to work
on state habeas proceedings in a capital case. At the federal level, that
goes up to as much as $35,000.

But Marcus estimates that it could easily cost as much as $25,000 for each
of the mentally retarded death row inmates to pursue a reprieve from death
in a successive habeas proceeding with an Atkins -based argument.

If that additional money is not spent, however, Moon, Marcus, three other
defense lawyers, a professor and a state legislator agree that Texas may
be in danger of violating Atkins and executing indigent, mentally retarded
inmates -- precisely because nobody foots the bill for further proceedings
based on Atkins.

Shannon Edmonds, a staff attorney for governmental relations at the Texas
District and County Attorneys Association in Austin, says he is not
close-minded about finding a way to prevent Texas from unwittingly
executing indigent, mentally retarded offenders. Edmonds says he would
have to review any funding proposal for successive habeas proceedings
related to Atkins. But he says his organization may ultimately approve of
the state providing additional funding for lawyers appointed to indigent
death row inmates to pursue Atkins claims.

Not surprisingly, lawyers from the Texas Office of the Attorney General
who are opposing Hearn's appeal disagree. They argue that the state is not
at risk of violating Atkins and that indigent death row inmates in Hearn's
situation already have received sufficient funds from the state for their
defense lawyers in habeas proceedings.

Moon and Marcus argue that, under the current state law, indigent,
retarded death row inmates whose habeas proceedings concluded before
Atkins have no state- or federally supplied resources available to them to
hire counsel to represent them in a post- Atkins habeas proceeding.
Therefore, Moon argues, even if an appellate lawyer could marshal the
evidence to persuade a court to halt an indigent, mentally retarded
inmate's execution, that attorney would have no way of getting paid, other
than through charitable funds, which, Marcus notes, are not always
available.

Under the current Texas Department of Criminal Justice policies, there is
no immediate way to tally the number of indigent, mentally retarded
death-row inmates who concluded their habeas proceedings before Atkins ,
because, according to TDCJ spokeswoman Michelle Lyons, the state agency
does not does not systematically test the IQs of death row inmates.

"Clearly, Mr. Hearn is not capable of representing himself in such
proceedings," defense lawyer Moon writes about his client in a post-stay
brief, filed with the 5th Circuit earlier this year.

GETTING THE MESSAGE?

In response to Moon's appeal of the U.S. District Court for the Northern
District of Texas' treatment of a Motion for Appointment of Counsel and
Stay of Execution, the 5th Circuit stayed Hearn's March 4 execution. More
recently, the 5th Circuit agreed to hear 30 minutes of oral arguments from
Moon and his opposing counsel from the Texas OAG's appellate staff about
the question of funding Atkins appeals.

Jerry Strickland, a spokesman for the Texas OAG, said the staff lawyers
handling Hearn would not comment on a pending case. But in a post-reply
brief to the 5th Circuit, assistant Texas attorney general Margaret
Schmucker argues that the state has properly established procedures to
enforce the constitutional prohibition on executing indigent, mentally
retarded offenders.

"Hearn's argument is disingenuous at best," Schmucker writes. She contends
that in a July 2002 decision by the Texas Court of Criminal Appeals ( Ex
parte Briseno ), the judges established that the state's pre-existing
procedural framework "can and does adequately protect the rights of
petitioners like Hearn even absent legislative guidance, and will continue
to do so until the Texas Legislature exercises its authority to amend them
[the current laws]."

In Briseno, the CCA ruled that the burden of proof was on an applicant
making a claim of mental retardation. To accept that Hearn is entitled to
appointment of new counsel, Schmucker argues in the post-reply brief to
the 5th Circuit, "would be to signal tacit approval of endless motions for
the preparation of endless successive petitions."

For some observers, however, the 5th Circuit's decision to hear oral
arguments in Hearn indicates that Texas soon may be getting a message that
it is not following the U.S. Supreme Court's orders in Atkins.

"For them to take the case sends a signal that we have to get our act
together," Jeremy Warren, a spokesman for Sen. Rodney Ellis, D-Houston,
says about the 5th Circuit's agreement to hear oral arguments in Hearn. In
the 78th Texas legislative regular session, Ellis introduced a bill, S.B.
163, which subsequently died in the Senate Committee on Jurisprudence, to
set up procedures for determining Atkins claims.

"We need to have procedures in place to be in compliance with the law of
the land. If we are not violating the letter of the law, then we are
clearly violating the spirit of it," Warren says. In Atkins , the U.S.
Supreme Court states that "the Constitution places a substantive
restriction of the State's power to take the life of a mentally retarded
offender."

When it agreed to hear oral arguments in Hearn, the 5th Circuit asked the
OAG and Moon to file supplemental briefs by May 10 to address a number of
issues, including whether Hearn is required "to make a showing of mental
retardation in order to be entitled to counsel to pursue an Atkins claim."

"Except for the very recent efforts by undersigned pro bono counsel to
gather school and other records," Moon wrote in his brief, "Mr. Hearn has
not had any legal assistance with the investigation and development of a
claim that he is mentally retarded and thereby ineligible for the death
penalty."

In 1998, jurors sentenced Hearn, who was 20 years old at the time, to
death for the carjacking and killing of a young Plano, Texas, stockbroker.
He denied any wrongdoing. At the trial, witnesses testified that Hearn
waved a newspaper clipping about the murder victim, Frank Meziere, and was
pleased to have made headlines for killing the 23-year-old. Dallas police
had discovered Meziere's body in an east Oak Cliff, Texas, field. He had
been shot 10 times in the head.

In his brief filed with the 5th Circuit, Moon includes an affidavit he
asked Jan Hemphill to submit. Hemphill is a Dallas solo practitioner and
TDS board member. She was appointed by the 282nd District Court of Dallas
and later by the U.S. District Court for the Northern District of Texas to
represent Hearn in habeas proceedings. In that affidavit, Hemphill states
that she met with the death row inmate "only once for approximately an
hour." She wrote that she noted at the time of that interview that Hearn
was "baby faced ... not very intelligent -- maybe below normal." She
states in the affidavit that, "At the time, I did not consider mental
retardation one way or the other."

According to Moon's brief and to what Marcus says he learned by reviewing
Hemphill's files on the Hearn case, Marcus found that Hemphill -- who did
not return three telephone calls seeking comment before press time -- did
not take steps that would be necessary for an Atkins claim. However, at
the time Hemphill represented Hearn in habeas proceedings, the U.S.
Supreme Court had not issued its Atkins ruling, and so she wasn't required
to examine whether he was mentally retarded.

Therefore, according to the brief Moon filed with 5th Circuit, Hemphill
did not conduct a social history investigation, did not obtain Hearn's
school records, and did not seek assistance from a mental retardation
expert, all of which an Atkins -related claim now would require.

In a letter dated Sept. 23, 2003, after her last unsuccessful attempt to
appeal his execution to the U.S. Supreme Court, Hemphill wrote in a letter
to Hearn: "For all practical purposes, this is the last service I can give
you as my client ... the state may ask that an execution date be set for
you. I suggest you talk to your family about that."

With Hearn's execution date looming, the death row inmate's family
contacted TDS for assistance, Moon says. Restrained by limited resources
and time, Moon says, TDS was able to conduct only an initial investigation
into Hearn's mental abilities. But TDS, Moon says, found enough evidence
to establish that Hearn could be mentally retarded. For example, the death
row inmate failed 1st grade, and by 9th grade had failed seven out of 11
classes.

There are no Texas laws -- only case law -- that give guidance to criminal
courts about how to make a determination of mental retardation.

Mary Alice Conroy, the director of the Psychological Services Center at
Sam Houston State University, says even when tests are administered the
results can be debatable. Some of those tests to determine whether someone
has impaired adaptive behavior skills, a sign of mental retardation, are
mind-bogglingly irrelevant, she says, when juxtaposed with the death row
scenarios. For example, one question on such a test asks if the examined
subject serves food or drink when a guest comes to visit, Conroy says.

TDCAA's Edmonds, who represents prosecutors in Austin, agrees that
identifying the mentally retarded on death row is tricky. "Part of the
problem is that the medical community is so subjective in determining
mental retardation," Edmonds says.

EXPENSIVE DECISION

Sydney Young, a partner in Paris, Texas' Ellis, Young & Tidwell, knows
firsthand about the lack of funding for Atkins claims for indigent,
mentally retarded death row inmates who have otherwise exhausted their
habeas proceedings.

Young represents Robert Charles Ladd, a death row inmate who was scheduled
for execution before the 5th Circuit ordered a stay hours before he was to
die in April 2003.

To get the stay, Young presented the court with juvenile records showing
Ladd had an IQ score of 67. (In Briseno, The Texas Criminal Court of
Appeals cited a statistically significant IQ score below 70 as a possible
indication of mental retardation.)

Ladd was convicted for the 1996 capital murder of a Tyler, Texas, woman
who was beaten to death and whose body was set on fire. Young says Ladd
denied the allegations at trial and throughout his direct appeals. Young
says she raised the Atkins claims as quickly as possible after the Supreme
Court's ruling and did so on her own dime. The Texas Court of Criminal
Appeals had rejected Ladd's mental retardation claim before the 5th
Circuit issued its stay.

Since she was no longer receiving funds from the federal or state courts,
Young says she spent at least $5,000 of her own money. She has
subsequently decided not to take death row appeal cases and works
primarily in real estate law.

"It comes to a point that you have to decide, I'm here to make a living,
so I had to get out of that line of work," Young says.

Young says Ladd's case is now pending in federal court.

Moon worries that because no one is willing to pick up the tab for those
lawyers, like Young, working on post- Atkins habeas proceedings and
because charitable organizations such as the TDS only have enough
resources to handle a handful of cases, the representation of post- Atkins
appeals for indigent death row inmates will be arbitrary.

"For me, that's what's so troubling," Moon says. "It's completely random
now who gets counsel on this."

(source: Texas Lawyer, May 25)