July 27 TEXAS----impending execution Condemned killer says DA failed to investigate abuse claims----David Martinez requests new trial just days ahead of scheduled execution. David Martinez, set to be executed Thursday for the 1997 rape and murder of Kiersa Paul on the Barton Creek greenbelt, is seeking a new trial by arguing that Travis County District Attorney Ronnie Earle's office shirked its duty. The last-gasp appeal accuses prosecutors of failing to adequately investigate allegations that Martinez, now 29, was sexually abused as a teenager by his father and his father's boyfriend, practitioners of a sadomasochistic lifestyle who - until recently - eluded defense investigators while "living a kind of underground life," the appeal states. Martinez's guilt is not in dispute. But had the jury known about the abuse, it might have sentenced Martinez to life in prison rather than death, said Gary Taylor, Martinez's lawyer. "The body responsible for conducting a criminal investigation of those (abuse) allegations is basically the district attorney's office, which is same office seeking a conviction in this case. If they substantiate and further our claims, then they hurt their case," Taylor said. "It creates a conflict." Earle's office rejects the conclusions in Martinez's appeal, which was distributed Tuesday to the nine-member Texas Court of Criminal Appeals. "We were never presented with what seemed to be credible evidence that a sexual assault occurred, as is insinuated," said Bryan Case, director of the district attorney's appellate division. "Especially in light of the fact that the most likely contributor of that kind of credible evidence, if it existed, was sitting in jail and had every opportunity and motivation to let us know." Paul, a cashier at a central Austin bakery who was taking a break from the University of Minnesota, was found eight years ago this week - strangled and raped with her throat slashed eight times and an "X" carved on her chest. The brutality sparked fears that a predator was stalking one of Austin's most beautiful and prized locations. But within a day, police narrowed their search to Martinez, a troubled acquaintance of the 24-year-old woman. Instead of relief, however, the arrest confronted Austin with a powerfully wrenching story of loss. It began in the mid-1990s, when Julie Anderson - adopted as a child and living in Austin - tracked her biological family to Minnesota. Suddenly, Paul had a big sister to go with her 2 younger siblings, and the 2 women formed an immediate friendship. And so it was natural that a few years later Anderson invited her sister to Austin when Paul needed a break from school and the northern winters. Paul flourished in Austin, where she made friends and satisfied her love of the outdoors with bike rides along the Barton Creek greenbelt. That's where she rode her bike on a July evening to meet a friend nicknamed "Wolf" because she felt sorry for him. A jogger found her body the next morning. A day later, police arrested Martinez, also known as Wolf. Martinez had Paul's bike, and her blood was found on his pocketknife. The jury needed only 15 minutes to find Martinez guilty, then 3 hours to sentence him to death. Paul's close-knit family watched all of the trial, filling 3 benches in the courtroom. This week, a woman who answered the phone at the Bloomington home of Paul's uncle said the family would not discuss the case. "It's just so hard. It's a difficult time right now," she said. Martinez, who declined a request to be interviewed, lived on the streets for a time before Paul's death. He left home after a dispute with his father, Ray Martinez, and his father's partner, Evan Muller, who had launched a business selling sadomasochistic paraphernalia when David Martinez was 16, his appeal states. Trial testimony listed conflicting accounts of abuse from Martinez, who said in a presentence report that he was physically and emotionally abused by both his parents, but told a psychiatrist that no sexual abuse occurred. The sexual abuse allegations became clearer in Martinez's 1st appeal, which listed 3 people who were prepared to testify that he was abused by his father and Muller. But the 5th U.S. Circuit Court of Appeals, in denying the appeal last year, noted that defense attorneys could not substantiate abuse allegations and that witnesses gave differing accounts of what occurred in Martinez's home. In fact, both the defense and the prosecution tried, and failed, to subpoena Ray Martinez for the 1998 trial. Nor could he be found during Martinez's 1st appeal. With time running out, Taylor recently launched another search for Martinez's father, using almost $10,000 from a private source that Taylor refused to divulge. After a 4-state search, an investigator found Ray Martinez in the back yard of his Michigan home, wearing only a thong and nipple rings, the appeal points out. Ray Martinez denied knowledge of abuse but refused to directly answer questions, according to a statement by investigator David Watson that was included in the appeal. And although a second investigator thought he found Muller's St. Louis home, he was never found or interviewed. Taylor said finding Ray Martinez adds a crucial piece of potential evidence to his client's case, and he asked the appeals court to grant a new trial with limited discovery - with assistance from prosecutors - to compel testimony by Martinez's father and Muller. "I can't make someone talk to me. My investigators don't carry badges and wear guns and put you in jail," Taylor said. Martinez's appeal notes that a 2003 U.S. Supreme Court ruling stated that unless allegations of childhood sexual abuse are thoroughly investigated and presented to a jury, there can be no confidence in a death sentence. But that investigation was thwarted, Taylor claims, by Ray Martinez's and Muller's refusal to testify and by prosecutors' refusal "to investigate or pursue them," the appeal states. Case, an assistant district attorney, said allegations contained in a defendant's appeal are not enough to launch an investigation of sexual assault. "Both at time of trial and at the time the (first appeal), it would have been in David Martinez's interest to provide us with that evidence," Case said. Nor could prosecutors approach Martinez, he said. "We could all be disbarred for trying to talk to the defendant." In addition, Case said, the prosecution's attempt to subpoena Ray Martinez and Muller shows that an attempt was made to investigate the allegations. In the meantime, all sides await a decision from the appeals court. If the appeal is rejected, Taylor said his next step would be the U.S. Supreme Court. "At some point, whether they choose this case or not, (appellate courts) are going to have to address this issue where the district attorney is the caretaker of justice - where if the DA takes one action, he may be prosecuting a wrong but may be hurting his case in another area," Taylor said. (source: Austin American-Statesman) NEW YORK: Cuomos endorse Morgy Highlighting their common opposition to the death penalty, Mario and Andrew Cuomo yesterday endorsed the reelection bid of Manhattan District Attorney Robert Morgenthau. Mario Cuomo, the former three-term Democratic governor, described Morgenthau - the Manhattan district attorney since 1975 - as "an institution" who is "unrivaled for excellence and competence." "You can't replace [him] that easily," Mario Cuomo added during an endorsement press conference at City Hall. Mario Cuomo lost his 4th-term bid in 1994 largely because of his opposition to capital punishment, which the state reimposed in 1996 under his Republican successor, Gov. Pataki. That law was struck down last year by the state's Court of Appeals. [note: A careful study of the election returns, shows the dp was NOT a key factor in that election. And the law was enacted in 1995, not 1996.] Andrew Cuomo, a former HUD secretary who once served as an assistant district attorney under Morgenthau, cited Morgenthau's refusal to prosecute death penalty cases during the 8 years the law was in effect. "Bob Morgenthau stood against the political tide to do justice in the truest sense of the word," the younger Cuomo added. The death penalty has been an undercurrent issue in Morgenthau's Democratic primary race against his challenger, former Manhattan Supreme Court Justice Leslie Crocker Snyder. She supports the death penalty, although she has said she would reserve it for especially heinous cases, such as terrorism, and would require DNA or other substantial evidence. Morgenthau's opposition to the death penalty could prove politically beneficial in Manhattan, with its bounty of liberal-leaning Democratic voters who oppose reinstituting capital punishment. In warmly accepting the endorsement of the former governor, which was announced months ago, Morgenthau noted that Mario Cuomo had been steadfast in opposing the death penalty "even though he knew it had serious political consequences for him." (source: New York Daily News) *************************** CUOMOS ENDORSE MORGY Manhattan District Attorney Robert Morgenthau picked up endorsements from former Gov. Mario Cuomo and his son, Andrew Cuomo, the former housing secretary and current candidate for state attorney general. The younger Cuomo, 47, called Morgenthau's staunch opposition to the death penalty an example of his principles. "Mario Cuomo fought every year to keep the Legislature from overturning the veto on the death penalty. Bob Morgenthau, despite all sorts of public pressure, never once sought the death penalty," Andrew said on the steps of City Hall. Morgenthau, 86, "has built an office that is unrivaled for excellence and competence," said the elder Cuomo. (source: New York Post)
