[Deathpenalty]death penalty news----TEXAS

[Rick Halperin]

June 20


TEXAS----impending juvenile execution

Execution set for killer of 73-year-old


A man who was convicted of killing and raping a 73-year-old Haltom City
woman in 1989 will be executed June 29, authorities said.

Mauro Morris Barraza, 32, was convicted in 1991 of capital murder in the
death of Vilorie Nelson. In a jailhouse interview in Livingston in June
2001, Barraza said he randomly selected Nelson as his victim.

The victim's daughter, Joy Nelson, moved away from the area after
Barraza's 1991 trial and could not be located to comment.

Barraza, who was 17 at the time, admitted to killing then raping Nelson.
Barraza said he did not remember details of the crime because he was in a
paint- and cocaine-induced haze, searching for houses in the area to
burglarize and for a place to get out of the midday sun.

He said he remembered entering and leaving the house but little about what
happened inside. "By that time, I was so far off into my rage or
whatever," he said in 2001.

Police and court records state that Barraza broke into the house through a
window and surprised Nelson as she was watching television. A neighbor who
knew Barraza from school eventually identified him to police.

Barraza's accomplice in the robbery of Nelson, Richard Glen Cedillo, 36,
is serving a 35-year sentence after pleading guilty to aggravated assault
with a deadly weapon and burglary of a habitation.

(source: Fort Worth Star-Telegram

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Judge had never faced grief like tot's death


Associate Judge Peter Sakai held it together when the call came that 1st
Saturday in June that baby Diamond Alexander-Washington was near death
from a beating.

Springing into "judge mode," he pumped the administrator from Child
Protective Services for answers. What was the baby's condition? Was the
damage irreversible? If so and the doctors wanted a do-not-resuscitate
order from him, couldn't it wait until Monday, when a court hearing could
be held and he could gather all the facts?

No order was needed. On Sunday afternoon, June 6, Diamond Rebecca
Alexander-Washington, 2, died at University Hospital of blunt trauma to
the head and stomach - injuries, police say, her mother inflicted on her.

Soon Sakai's armor dissolved.

"She was cute as a button," he recalled. "I could certainly put a face on
that child. I knew that child. I was fond of that child."

There was something else that tore at him. While other children had died
under his supervision, most of their deaths were from natural or
accidental causes. Children who died of foul play did so after other
judges had made rulings on their placement.

Diamond died 6 weeks after he signed an order allowing her to return to
the mother now charged with killing her.

For the "children's judge" in charge of the county's abuse and neglect
docket, losing a child under those circumstances was the worst news
imaginable.

Had he missed something?

Inside his courtroom that afternoon, a reporter was asking tough
questions. Did he feel responsible for the little girl's death? When he
signed the order, did he know Michigan authorities had removed Diamond's 4
older siblings from the mother's care because of neglect allegations?

Sakai had a hard time getting through an interview he was reluctant to do
in the first place. He was swept up in grief.

By the time he got home, he was so fatigued he found it hard to converse
with his wife. He went to bed hours early and drove to work the next
morning before sunrise. Taking a seat on the bench, he began typing on his
laptop:

"I have to admit that I have always been besieged with hate mail, threats
of violence to me and my family and pure revenge, but nothing like this
has affected me like this child's death."

He asked for a review of the case and some time for himself. He needed to
be sure "the system" hadn't failed Diamond. He needed to be sure he hadn't
failed her.

"I felt I had to look at myself," he said.

In search of answers, he began wondering if he really had the "heart and
mind" to continue in his job.

That question he hasn't decided.

No history of violence

The Diamond case had been a tough one for Sakai. He would learn that
Kimberly Alexander was a "low functioning" mother of 6 with a long history
of neglect. She lost custody of 4 children in Michigan and lost custody of
Diamond, her fifth, when Diamond was born and tested positive for drugs.

Despite her deficiencies, Kimberly Alexander showed signs of promise in
the months after Diamond's April 2002 birth, trying to win her back from
state custody.

She found a steady job and completed parenting and empowerment classes.
She underwent psychological tests. She got counseling and stayed off drugs
and alcohol. When her 6th child was born last year, she was allowed to
keep him.

Caseworkers, who noted in court that she had never been accused of acting
violently toward her children, became convinced she was ready to handle
Diamond as well. Just to be sure, they asked for and received a six-month
extension so they could work with her on "homemaking" skills before any
reunification took place, child welfare officials said.

Sakai heard the case again in March. He was concerned about the mother's
poor parenting skills, but he, too, noted that she had no record of ever
behaving violently toward her children.

Everyone involved in the case argued for reunification, from Child
Protective Services caseworkers to her court-appointed attorney and her
court-appointed special advocate. Sakai signed the order that sent the
girl from her foster parents, Kevin and Veronica Godley, to her mother.

At home for more than a week, Sakai has had time to reflect. He's not
beating himself up. He's concluded that he made the best decision he could
with the facts he was given.

He hasn't allowed himself to imagine little Diamond's last days or hours
or the beating she endured. He doesn't go there.

In the week since he's been at home, strangers from as far away as New
York have praised him for his work. Speaking at a panel about grandparent
caregivers in Round Rock the other day, Thelma Banks, 60, thanked him
profusely for signing the adoption order 7 years ago that gave her custody
of her three grandbabies.

Now she wanted to know if her grandbabies' photos still adorned his
courtroom bulletin board. Smiling, the reserved McAllen native said he'd
have to check.

The normally easygoing judge, who seems to be liked by everyone except
maybe the parents of the children he takes away, has always thought of his
decisions as something like math formulas.

"OK, I hear all these facts," he said the other day, "and the answer is
X."

Diamond's death has forced him to realize that his legal equations are
based on a lot of human judgment. Ultimately, he's asked to predict other
people's behavior.

"That gets deep," he said.

What it comes down to is this: He can make a ruling with the best "facts"
in front of him and still a child can die.

Sakai knows he'll probably lose another child if he remains on the bench.
Those are just the odds for a judge who spends his days making predictions
about where children will be safe.

Sakai will return Monday to his courtroom. He will don a black robe and
listen to stories about other troubled families.

He'll make decisions based on a child's best interest and hope he is
right.

The county's new Children's Court is scheduled to open in November. He'll
certainly stick around for that.

He knows he wants to continue his advocacy work for children. He's not
certain he wants to do it from the bench.

"After 10 years, do I really want to do this?" he asked.

(source: San Antonio Express-News)

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

MOVED BY MADNESS---Public opinion may change on criminally insane; Yates
case may alter outlook for others


3 years ago today, Andrea Yates drowned her 5 children in the bathtub of
the suburban Houston home she shared with her husband and family. The
subsequent trial has become a landmark case not because it created new
law, but because it changed minds.

I attended nearly every day of the Yates trial. When it was over, I wrote
a book called Are You There Alone?: The Unspeakable Crime of Andrea Yates.
As I traveled the country after the book's publication, I encountered no
rabid talk show hosts calling for Andrea Yates' death, no person who
seethed with the vitriol that characterized the first weeks and months
after the Yates tragedy. Somewhere between June 20, 2001 and today, the
anger against Andrea Yates and her family has slowly turned to empathy.

Even Park Dietz, M.D., an expert witness for the prosecution and the only
psychiatrist who testified that Andrea Yates was sane at the time of her
crimes, had softened. He told a Charlottesville, Va., weekly magazine
named The Hook:

"[What] made it challenging for me is that I wished she were insane, but
she wasn't, not within the law of Texas. And yet, the reason I wished she
were insane is that this was a very good woman before she became ill who
was a very sick woman after she became ill. It's a rare combination, of
the people that I see, to have someone of good character who is profoundly
sick. She, despite having nearly incapacitating symptoms of mental
illness, nonetheless knew that her actions in killing the children were to
be condemned by God and by society, and that they were illegal. [S]he
believed that [her children's] best chance of heaven was to die now,
before they were corrupted [by Satan]."

Just last week, I spoke with some of Dietz's forensic colleagues at a
Harvard Medical School think tank on psychiatry and the law. Its members
believed that Texas' "archaic" legal definition of insanity was the
culprit for Dietz's quandary and Yates' imprisonment.

That seemed unlikely, I told them. This April, in a nearly identical case,
a Texas jury found Deanna Laney of Tyler, Texas, innocent by reason of
insanity. She believed God told her to kill her children with a rock as a
test of her faith (two children died; one was maimed).

Were the verdicts different because Yates followed orders from Satan and
Laney from God? It seemed incredible, but many were tempted to think Texas
jurors might be that biased. I had a different take: Andrea Yates' legal
misfortune was that her delusion included knowing that the drownings were
wrong, fitting snugly -- though perhaps too literally -- within the Texas
sanity test. Indeed, some of the think tank members seemed surprised that
Dr. Dietz had sliced legal sanity so thin. That the jury had gone along
with him when, clinically, Yates was clearly insane.

I thought the public awareness generated by the Yates case was the reason
for the different verdicts. For more than a year, daily Yates press
coverage had taken the nation to school. In the Laney case, even
psychiatrists for the defense and prosecution (again including Dr. Dietz)
and the presiding judge unanimously agreed Laney was insane, the district
attorney felt citizens deserved a full public hearing of the controversial
case. The Laney trial became a referendum on how the public wanted to deal
with sick moms who harm their infants.

The jury's acquittal of Laney spoke loud and clear. Even under Texas law
-- which like numerous states uses the strictest legal definition of
insanity -- the public no longer supported million-dollar trials for the
crime of infanticide when commitment to a state mental institution could
be negotiated without one.

So in a sense, one of the think tank experts said, Deanna Laney got Andrea
Yates' verdict? Exactly, I answered. That was my opinion. (Following
Laney's acquittal, she was automatically transferred to a state maximum
security psychiatric hospital where she may remain for as long as 40
years.)

Sometimes a law wasn't isn't as important as the well-informed citizens
who apply it -- whether they be are a Tyler, Texas jury or medical
experts. I witnessed other changes as a result of the Yates case,
particularly in the areas of education and prevention. Many relatives told
me they wouldn't have gotten help for sick moms in their own families if
not for the shock of the Yates tragedy. If it could happen to the Yates
children, it could happen to anyone's children, nieces, nephews, students,
patients.

Postpartum illness has been around for centuries. In 400 B.C., Hippocrates
described it as a kind of madness. Infanticide occurred with frequency
(last week in Buffalo, N.Y., for instance) and isn't going to go away.
Last year Texas passed the Andrea Yates Law requiring health-care workers
to educate new parents about the mental health risks at pregnancy.
Houston's Mental Health Association founded the Yates Children Memorial
Fund for Women's Mental Health Education (YCMF). In May, a medical text on
infanticide and women's mental health edited by Dr. Margaret Spinelli
M.D.was awarded the prestigious 2003 Guttmacher Book Award from the
American Psychiatric Association and the American Academy of Forensic
Psychiatry. Spinelli's research had been marginalized only five years
earlier. Another psychiatrist told me she thought the Yates case had
advanced the cause of women's mental health by 50 years.

But would Andrea Yates herself benefit from the public evolution she had
spawned? That is not so certain. A psychiatrist who treated Yates
following the birth of her fourth child described her as one of the 5
sickest patients she'd ever treated -- and there had been 6,000 of them.
For now, Yates lives in a single cell in the psychiatric unit of the
penitentiary in Rusk. Once again, she is nearly catatonic -- speechless
and not eating -- following an unsuccessful adjustment in her medication.
Though Yates is not obliged to, ordinarily she mops floors, launders and
dispenses prison uniforms, preferring busywork to inactivity and solitude.
She receives medication for her illness but little therapeutic treatment.
Her husband and her 75-year-old mother and family drive the 9-hour round
trip on alternating weekends to visit 2 hours with Yates.

In late April, the historically august Texas' First Court of Appeals
accepted a brief from Yates' trial attorneys. The court declined the
attorneys' offer to withdraw in the best interest of their client and to
be replaced by a team of pro bono appeals lawyers from the prestigious
Washington, D.C., firm of Arnold & Porter. (The firm may yet be allowed to
file a substitute brief.) The state's reply brief will follow, and months
from now the justices will decide whether the Yates case deserves a second
look.

Because of an error in testimony used in the state's final arguments,
there is reason to hope the judges' decision will be a landmark of sanity
in a landmark case. If not, Andrea Yates will remain in the Texas prison
system until she is eligible for parole in the year 2041. Though her case
may never become a landmark in the legal sense, it already marks a
critical turning point in public opinion.

(source: Houston Chronicle, Viewpoints -- Suzanne O'Malley's insightful
dispatches on the Andrea Yates trial appeared in The New York Times
Magazine, Salon.com, O, The Oprah Magazine and on Dateline NBC. The
author's discovery of false testimony during the Yates trial resulted in
the pending appeal of Yates conviction. Her book, Are You There Alone?:
The Unspeakable Crime of Andrea Yates, was published in February 2004 by
Simon & Schuster)

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

Lawyers who fall asleep with clients


QUESTION: How many Texas lawyers do you think have been disbarred or
disciplined for a violation of the following Bar Disciplinary Rule?

Rule 5.07. Prohibited Sexual Relationships:

(a) A lawyer shall not condition or threaten to condition representation
of a client or the quality of legal services provided or offered to a
client or prospective client on the agreement of any person to engage in a
sexual relationship with the lawyer.

(b) A lawyer who personally represents a client shall not commence a
sexual relationship with that client during the existence of the lawyer's
professional representation of that client if that sexual relationship
exploits the client's emotional dependency on the lawyer's professional
character as a legal adviser and is reasonably likely to significantly
impair the lawyer's ability to represent the client competently, or
otherwise prejudices or damages the client or the client's interest.

Answer? None!

You might think Texas lawyers are just more ethical than other professions
when it comes to sexual relations with their clients. Or, you could
surmise that possibly the State Bar Disciplinary police have been asleep
at the wheel.

As to Texas attorneys being more sexually ethical, I pass no comparative
judgment either way. For almost 20 years, it has been an honor for me to
be licensed as a Texas lawyer, work as a prosecutor and now as a county
criminal court judge. The vast majority of the attorneys I have worked
with truly are good people and enjoy helping others. A very small number,
however, exploit their position and give the rest a bad name.

As to any thought that the State Bar Disciplinary Committee hasn't done
its job, consider this: The rule listed above has never existed in Texas.
Rule 5.07 comes from a version of the American Bar Association's Model
Rules of Professional Conduct. Think of any other profession: You can bet
there is a rule prohibiting this unethical conduct.

Mental health professionals found to have violated their own stricter
version of ABA Rule 5.07 can lose their license and go to jail. The
Legislature has seen fit to make it a crime in these situations, but
lawyers don't even have an ethical conduct rule specifically prohibiting
this unethical behavior. The reason for this prohibition in mental health
situations is to protect those who are so emotionally dependent on the
therapist that the lines between consent, control and advice get blurred
quickly. In a prosecutor's final argument for this type crime, a play on
words before the jury could be: Therapist or The rapist.

Now consider a lawyer's prospective criminal client who is looking at a
possible jail sentence, or a divorce client facing the possibility of
losing custody of his or her children. Are they no less dependent
emotionally on the attorney who has agreed to represent them in court?
Though the attorney's advice shouldn't reach the personal, introspective
level as that of a therapist, there is a reason we are called attorneys
and counselors at law. The giving of proper legal advice does not occur in
a sterile, legal vacuum devoid of human emotion. In these situations there
is a fine line between being the person's lawyer and guidance counselor.

These situations are ripe for abuses to occur. It is no surprise that
members of the State Bar Disciplinary Counsel acknowledge unofficially
that most of the complaints received over the years of this type behavior
have occurred in the criminal and family law areas.

To stop the jokes about unethical lawyers collecting "couch fees" for
services rendered, we need a bright line distinction in the rules that
govern professional conduct for attorneys.

At present, the State Bar Disciplinary Counsel has to carve out offenses
from several existing bar rules just to make a case.

For instance, lawyers are prohibited from collecting an illegal fee or
unconscionable fee. The theory here being that sexual favors are an
illegal fee. Or the conflict of interest rule that states: "A lawyer shall
not represent a person if the representation of that person reasonably
appears to adversely limit the lawyer's responsibilities to the client."
Or the neglect rule that states: "A lawyer shall not neglect a legal
matter entrusted to the lawyer."

Common sense begs the question: How can a lawyer not be neglectful, or how
can there not be a conflict of interest if the attorney and client are
having sex during this legal representation?

The problem with these general conduct prohibition rules is that each
would only have application in certain situations.

Texas lawyers need a specific rule prohibiting the kind of lawyer/client
sexual relations described in the American Bar Association rules. This
would give the State Bar Disciplinary Counsel the proper tools to go after
the few who taint us all.

The State Bar of Texas will be holding its annual meeting in San Antonio
at the end of June. This would be a good time to make serious steps to
present Rule 5.07 to the general membership for approval. Texas attorneys
should then do the right thing and approve it.

(source: Houston Chronicle, Viewpoints ---Judge Larry Standley, a
Republican, has been presiding judge for Harris County Criminal Court No.
6 since 1999. He previously worked as a prosecutor with the Harris County
District Attorney's Office for 14 years)