[Deathpenalty] death penalty news----TEXAS

[Rick Halperin]

Oct. 11



TEXAS:

Lawyers say judge violated executed man's rights


CODES OF CONDUCT

Attorneys argue that Texas Court of Criminal Appeals Judge Sharon Keller
violated judicial codes of conduct, including:

 Behavior that promotes public confidence in judicial integrity and
impartiality

 Allowing a person with a legal interest at stake the right to be heard

 Discharging administrative duties without bias or prejudice

 Cooperating with judges and court officials in administration of court
business

20 lawyers from across Texas filed a formal judicial conduct complaint
Wednesday against Texas Court of Criminal Appeals Presiding Judge Sharon
Keller, accusing her of violating the constitutional due process of a
condemned man.

The complaint to the State Commission on Judicial Conduct says Keller
improperly cut off appeals that preceded the execution of Michael Richard
on Sept. 25, even though just hours earlier the U.S. Supreme Court had
accepted 2 Kentucky cases on the constitutionality of chemicals used for
lethal injection.

Meanwhile, 2 of his predecessors raised questions about whether Attorney
General Greg Abbott should have intervened to stop Richard's execution.
The attorney general represents the state in death penalty appeals.
Abbott's office declined requests for comment.

The lethal injection issue before the Supreme Court had direct
implications for Richard's execution because Texas uses the same chemicals
as Kentucky. The Supreme Court has since stayed one Texas execution
because of the Kentucky cases. The state appeals court halted the next
one.

"Judge Keller's actions denied Michael Richard two constitutional rights,
access to the courts and due process, which led to his execution," the
complaint states. "Her actions also brought the integrity of the Texas
judiciary and of her court into disrepute ... "

Lawyers signing the complaint include former State Bar President Broadus
Spivey, Houston criminal defense lawyer Dick DeGuerin, University of
Houston law professor Mike Olivas, former appellate Judge Michol O'Connor,
state Rep. Harold Dutton, D-Houston, and former Nueces County Attorney
Mike Westergren.

The lawyers are being represented in the complaint by Jim Harrington,
director of the Texas Civil Rights Project.

Harrington said before filing the complaint that it was "shameful" for
Keller to "short-circuit" Richard's rights by ordering the courthouse door
locked at 5 p.m. even though fellow appellate judges said they were
prepared to stay late to consider defense arguments.

"I think it's probably reflective of her own personal bias in this case
about capital punishment and her lack of respect for the rights of
defendants, the rights they have under the constitution," he said.

Keller did not return several phone calls seeking comment.

Proceedings are secret

Along with denial of due process and access to the courts, the complaint
cites canons of the Texas Code of Judicial Conduct. Those canons say
judges should promote public confidence in the judicial system and act
without prejudice.

"Justice should be both fair and competent. Here it was not. The result is
a man was killed on a day he should have lived," said Chuck Herring, an
Austin lawyer who joined in the complaint and who has written on
professional ethics and responsibility.

The judicial commission's proceedings are secret. At the end, the
commission can dismiss a complaint without making it public, issue a
public reprimand or recommend to the Texas Supreme Court that the judge be
removed from office.

At issue is the sequence of events leading to the execution of Richard,
49, for the rape and shooting death of Marguerite Dixon, a Hockley mother
of 7, in 1986.

Lawyers for Richard had called the court's clerk, asking that the office
stay open an extra 20 minutes so a stay of execution request could be
filed. Even if it was denied by the state court, that request was
procedurally necessary to get a stay from the Supreme Court.

Keller last week voiced no second thoughts.

"You're asking me whether something different would have happened if we
had stayed open," Keller said, "and I think the question ought to be why
didn't they file something on time? They had all day."

Abbott also criticized

Keller. a Republican, was not the only state elected official criticized
Wednesday in connection with the Richard execution.

Former Gov. Mark White and former Attorney General Jim Mattox, who both
fought to enforce the state's capital punishment laws during their terms
as attorney general, said Abbott, as the state's top lawyer, has a duty to
halt executions when they appear to violate an inmate's due process
rights.

White said Abbott is an officer of the court and he "should have been
obligated to ask for a stay" in the Richard execution.

Mattox said the attorney general may lack actual legal authority to stop
an execution, but the state prison system will follow an attorney
general's order.

Mattox, who witnessed more than 30 executions, said he once ordered an
inmate off the execution gurney over prison system protests because he
knew the man would receive a stay.

"When the state is all powerful, the state has got to be cautious in how
it uses its power," he said. "Sometimes you do things not to protect the
individual but to protect the system itself."

Mattox and White are Democrats. White served as attorney general from 1979
to 1982, and Mattox from 1983 to 1990.

U.S. Sen. John Cornyn, R-Texas, as state attorney general in 2001 asked
the U.S. Supreme Court to overturn a Texas inmate's death sentence because
race had been used to determine "future dangerousness." Cornyn said Texans
must have faith that the criminal justice system is fairly administered.

"In a way it shows that the system works because that's part of my job, to
derail these trains that are chugging along," he said then. He couldn't be
reached Wednesday.

(source: Houston Chronicle)

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


Execution would not have taken place if court had stayed open after 5
p.m., 19 lawyers claim.

19 Texas lawyers filed an ethics complaint Wednesday claiming that Sharon
Keller, presiding judge of the state's highest criminal court, has
discredited the judiciary and subjected Texas to worldwide ridicule.

Keller, the lawyers argue, should be removed from office or otherwise
disciplined for refusing to accept an after-hours appeal from death row
inmate Michael Richard on Sept. 25. They say Keller's actions violated her
legal obligations and deprived Richard of his constitutional right to
court access. Richard was executed that night.

"The whole scenario is shocking and unconscionable," said Jim Harrington,
director of the Texas Civil Rights Project and one of the lawyers filing
the complaint.

Richard's lawyers had asked the Texas Court of Criminal Appeals to stay
open 20 to 30 minutes past 5 p.m. to accept an appeal based on that
morning's news that the U.S. Supreme Court would determine whether lethal
injections violate the U.S. Constitution's ban on cruel and unusual
punishment. Defense lawyers said computer problems had delayed their
filing.

Keller refused without consulting or alerting others on the 9-member
court, including at least 3 judges who were working late in case of a
last-minute appeal. Her decision made headlines around the world and drew
rare public criticism from several judges, who typically don't discuss the
Austin-based court's internal workings.

By not accepting the late filing, the Texas court did not allow Richard
access to the U.S. Supreme Court, which could have stayed his execution. 2
days later, the Supreme Court blocked the execution of another Texas
inmate whose appeal, similar to Richard's, was filed on time with the
Texas court.

Had Keller accepted the after-hours filing - common practice among appeals
courts across the nation - Richard would not have been executed,
Harrington said.

Keller did not return a phone call seeking comment Wednesday. Previously,
Keller said she was merely enforcing the court's longstanding practice of
closing at 5 p.m. and had not been told about computer troubles.

The complaint, filed Wednesday afternoon with the State Commission on
Judicial Conduct, included signatures from Houston defense lawyer Dick
DeGuerin and Austin lawyers Broadus Spivey, James George Jr., Joe Crews
and Chuck Herring Jr..

"Justice should be both fair and competent, and here it was not," said
Herring, author of "Texas Legal Malpractice and Lawyer Discipline."

The complaint accuses Keller of violating 4 sections of the Texas Code of
Judicial Conduct:

Canon 1,which requires judges to preserve the integrity of the judiciary.

Canon 2,which directs judges to act in ways that promote public confidence
in judicial integrity.

Canon 3B(8), which requires judges to ensure that interested parties "be
heard according to law."

Canon 3C(1), which requires judges to run courts without bias and
"cooperate with other judges and court officials in the administration of
court business."

The State Commission on Judicial Conduct is an independent agency that
investigates allegations of misconduct in Texas judges.

If a complaint is confirmed, the 13-member commission can issue private
sanctions and public reprimands or request that the Texas Supreme Court
issue a suspension.

(source: Austin American-Statesman)

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

Attorneys file complaint over court closing before execution----Lawyers:
Judge violated rights of man executed after injection case taken


20 lawyers filed a judicial conduct complaint Wednesday against Texas
Court of Criminal Appeals Presiding Judge Sharon Keller, accusing her of
violating the rights of a condemned man by cutting off appeals after
office hours ended.

The complaint to the State Commission on Judicial Conduct says Judge
Keller improperly cut off appeals that led to the execution of Michael
Richard on Sept. 25 despite the fact the U.S. Supreme Court earlier that
day accepted a case on the propriety of lethal injection.

The lawyers said the case the Supreme Court accepted had direct
implications for Mr. Richard's execution.

"Judge Keller's actions denied Michael Richard two constitutional rights,
access to the courts and due process, which led to his execution," the
complaint states. "Her actions also brought the integrity of the Texas
judiciary and of her court into disrepute and was a source of scandal to
the citizens of the state."

Judge Keller didn't immediately return phone calls to her office seeking
comment Wednesday.

Lawyers signing the complaint included former State Bar President Broadus
Spivey, Houston criminal defense lawyer Dick DeGuerin and Democratic state
Rep. Harold Dutton of Houston.

The lawyers are being represented in the complaint by Jim Harrington,
director of the Texas Civil Rights Project. Mr. Harrington said Judge
Keller's actions were "morally callous, shocking and unconscionable for an
appellate judge."

The judicial conduct commission's proceedings are secret. The commission
can dismiss a complaint without making it public; publicly reprimand a
judge; or recommend to the Texas Supreme Court that the judge be removed
from office.

Mr. Richard, 49, was executed for the 1986 rape and fatal shooting of
Marguerite Dixon, a Hockley mother of 7.

Lawyers for Mr. Richard had called the court's clerk, asking that the
office stay open an extra 20 minutes so a stay of execution request could
be filed. Even if the stay was denied by the Texas court, that state
request was procedurally necessary to get a stay from the Supreme Court.

Though other judges at the Texas appeals court were waiting for Mr.
Richard's appeal, Judge Keller ordered the clerk to close promptly at 5
p.m. The appeal was not filed, and he was executed later that evening.

(source: Associated Press)

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

High court cool to Bush claim on death cases


The conservative-leaning Supreme Court has been seen as a friendly forum
for claims of broad presidential power. But on Wednesday, President Bush's
lawyers got a cool reception for their claim that the chief executive can
tell states to reopen the death sentences of dozens of Mexican nationals.

2 years ago, in something of a surprise, Bush ordered Texas judges to take
a new look at the case of Jose Medellin, a Houston murderer who was born
in Mexico. The president, who has been a staunch proponent of the death
penalty since his days as governor of Texas, took that unexpected position
to enforce a ruling won by the Mexican government before the International
Court of Justice in the Hague.

In arguing the Medellin case before the Supreme Court on Wednesday, a
lawyer for the state of Texas insisted Bush had overplayed his hand. Most
of the justices -- including Bush's own appointees -- appeared to agree.

"This is a very curious assertion of presidential power," said Texas
Solicitor General R. Ted Cruz, since the chief executive has no legal
authority to tell Texas judges how to do their jobs. "This court has the
final authority to determine what federal law is," he added.

Not surprisingly, that argument won favor. Chief Justice John G. Roberts
Jr. and Justice Antonin Scalia said the Supreme Court -- not the
international court or the president -- has the ultimate power to decide
whether the terms of treaties are binding law within the U.S.

"I'm rather jealous of that power," Scalia said. "It belongs in this
court."

The case of Medellin vs. Texas offers a rich mix of legal questions and
strange bedfellows.

On one side, Bush is allied with a lawyer who is trying to win a new
hearing for Medellin.

At the same time, the court's liberal justices, who are usually skeptical
of broad claims of presidential power, seemed most supportive of Bush's
order in this case.

Justices Ruth Bader Ginsburg and Stephen G. Breyer said that when the
United States enters into international treaties, including free-trade
pacts, it agrees to be bound by the terms of those agreements.

At one point, Breyer read a passage from the Constitution that says "all
Treaties made. . . . under the authority of the United States shall be the
supreme law of the land, and judges in every state shall be bound
thereby." When he came to the words "in every state," he paused to say, "I
guess it means, including Texas."

That passage would seem to cover this case, he said.

In 1969, the Senate ratified the Vienna Convention, a treaty under which
the nations agreed they would notify one another when one of their
citizens "is arrested or committed to prison." In its suit before the
world court, the government of Mexico alleged U.S. officials failed to
comply with that duty, and it pointed to 51 Mexican nationals on death
row, including 28 in California.

While ruling for Mexico, the international court did not say precisely
what must be done. Instead, it said the United States should "provide, by
means of its own choosing, review and reconsideration of the convictions
and sentences" of the Mexican nationals.

Bush's order applied only to Texas.

However, if the Supreme Court were to rule for Medellin, the decision
could force California judges to take another look at the cases of the
Mexican nationals named in the international court ruling.

It is also not clear what Mexican authorities would have done had they
been notified when the various men were arrested. Medellin was arrested
for the rape and killing of two teenage girls in 1993, and he soon waived
his Miranda rights and gave a detailed confession.

Cruz noted that while Medellin was born in Mexico, he had lived in the
United States since he was 3.

Most of the justices signaled they were inclined to rule for Texas and to
say neither Bush nor the international court can require states to reopen
old cases.

"The president espousing the judgment [of the international court] has no
legal effect," Scalia said. "It's not a directive to the states."

(source : Los Angeles Times)

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

Texas Holds Him----Leave it to Texas to put a stop to executive
overreaching.


It's become a sort of truism that nothing earthly can halt the Bush
administration's drive to reinstate the Imperial Presidency. We like to
moan that as this president continues to expand the reach of his asserted
authority to invade/eavesdrop/classify/torture/detain, nothing breaks his
stride. Not tanking poll numbers, not losing Congress to the Democrats,
not even pushback from the Supreme Court. Over seven long years, no
institution of government has really been able to tell the president,
"No."

Until Texas.

Medellin v. Texas could be a law-school exam unto itself. It touches on
the separation of powers and the supremacy clause, international treaties
and state criminal codes, federalism and the reach of the president's
diplomatic authority, all wrapped up in fundamental questions about the
scope of judicial review. But really, the best part of Medellin is that if
you are a casual spectator attempting to pick out the "good guys," here's
your choice: the state of Texas and its relentless quest to execute its
people without regard to moral, international, or legal norms, versus the
Bush administration and its claim to broad new executive authority to boss
around state judges. It's like having to choose between being clawed to
ribbons by a grizzly bear or gnawed to death by a killer whale.

Jose Ernesto Medellin is a living argument for the death penalty. In 1993,
as part of a gang initiation, he and some friends sodomized and gang-raped
2 teenage girls in Houston, strangling them with their shoelaces. One
victim's Goofy watch was stolen as a prize. Medellin confessed to the
crime and was sentenced to death by a jury, a sentence affirmed in the
appeals courts. Only later did Medellin learn that, because he is a
Mexican citizen, the Vienna Convention of 1963 entitled him to consult
with Mexican consular authoritieswho might have helped him at his trial.
For example, they might have found him a decent lawyer, instead of, say,
one disbarred for ethics violations in another case.

In 2004, Mexico filed a suit on behalf of Medellin and 50 other Mexican
nationals on death row in the International Court of Justice (the judicial
body of the United Nations), claiming the United States had violated his
and the others' Vienna Convention rights by failing to contact their
consulates. In 2004, the ICJ ruled in a case called Avena that the United
States had in fact violated the Vienna Convention, and that the 51
sentences needed to be subject to "review and reconsideration" in the U.S.
courts.

And thenhere comes the really odd partPresident Bush jumped into the
middle of the dispute in 2005, issuing a weird little back-of-the-napkin
"Memorandum for the Attorney General" to the state courts where these 51
guys had been sentenced. In this missive, he asserted that, based on his
executive authority and apparently his abiding affection for international
treaties, he was ordering the state courts to enforce the ICJ's Avena
decision.

The Texas Court of Criminal Appealsnot to put too fine a point on this
onetold the president to eat his shorts. Bush, the court said, "has
violated the separation of powers doctrine by intruding into the domain of
the judiciary." So there you have it: One team consists of the Imperial
President and the unrepentant rapist; the other is Texas, a state that has
never met a death-row candidate it can kill fast enough.

This would be an easy case were it not for Bush upending the world order
by siding with the humanitarians and internationalists. And perhaps
because of that, the justices spend much of the oral argument wishing the
executive powers problem away. The court's more conservative memberswho
might ordinarily look favorably on expanded presidential authorityquestion
Medellin's lawyer about why uppity foreigners should be able to tell U.S.
courts what to do. The more liberal justices work extra hard to avoid
taking the position that the president should be afforded sweeping new
powers to conduct foreign policy. In sum, we get a broad-ranging
discussion about the self-enforcing nature of international treaties,
rather than a referendum on President Bush.

Donald F. Donovan argues for Medellin, and within seconds he's blasting
Texas for trying to tell the world, the court, the Congress, and the
president that Texas answers to none of them. It quickly becomes plain
that neither Justices Antonin Scalia and Samuel Alito, nor Chief Justice
John Roberts is really offended by this proposition. Roberts asks whether
the ICJ could also have forced Texas to jail the state officials who
failed to give Medellin access to his consulate. Donovan struggles with
this hypo until Justice Stephen Breyer lets him know that foreign courts
can't actually force us to violate our own Constitution.

Justice Anthony Kennedyneurons imploding at the prospect of having to
choose between international goodwill and the supremacy and independence
of the U.S. Supreme Courtasks what would have happened if Bush had ordered
the U.S. courts not to enforce the ICJ verdict. When Donovan says the
courts would have had to comply with the international tribunal, Kennedy
pounces: That means the president's action is not what decides the case.

The chief justice offers Donovan five extra minutes if he can just clear
up a few more things, like what the Supreme Court is left to interpret if
they are required to simply sign off on the judgment of the world court.
"Can we interpret the judgment?" wonders Kennedy. "Did the president
displace our authority to do that?"

Solicitor General Paul Clement has 10 minutes to argue the president's
side, and he tries awfully hard to put some green between himself,
Medellin, and the notion that international treaties are hugely
significant. He instantly takes the position that the ICJ judgment is not
what decides this case. The president's issuance of an order on top of
that judgment? That's where the real constitutional alchemy kicks in.

Scalia disagrees. Only Congress can pass laws demanding the enforcement of
a treaty. He shudders at the notion that "the president can make domestic
law by writing a memo to the attorney general." He doesn't even understand
how Medellin and the other 50 Mexicans named in Avena are entitled to
relief in the first place; Avena was a fight between Mexico and the United
States.

Kennedy asks again what Clement would be arguing if the president had
ordered Texas to defy the ICJ judgment. "Then I'd be on that side of the
podium," confesses the SG.

Scalia is still bothered by this casual memo the president wrote to his
attorney general. How can a mere memorandum have legal effect, he wonders:
"What if the president just wrote a memo to himself?" The memo needn't be
a formal legal document, replies Clement. It's enough that the president
directed the courts to abide by the ICJ. It does make you wonder whether
the president's Christmas lists and the doodles beside his phone also
carry the force of law.

When it's his turn, Texas Solicitor General Ted Cruz is confronted by
Justice David Souter, who wants to know if the case can be decided on some
basis other than the president's power. Then Breyer reads the supremacy
clause of the Constitution: " '[a]ll Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State,' " he stops to observe, "I
guess that was meant to include Texas ... 'shall be bound thereby.' " You
have a treaty ratified by Congress, plus a judgment from international
tribunal. "That is the law," he says.

Cruz argues that Congress wanted disputes over treaties and conventions to
be resolved diplomatically, not in the courts. To do otherwise is to give
away the courts' constitutional power.

Scalia continues to object to giving the ICJ authority to determine U.S.
federal law. "I am rather jealous of that authority," he admits.

Ginsburg is incredulous in the opposite direction. The United States
submitted to the ICJ's jurisdiction. If the court accepts Texas' argument,
then "unlike the rest of the world, the United States can't get the
advantage of reciprocal guarantees that our judgments will be respected
and in turn we will respect your judgments.'' And isn't that why the
United States pushed for this convention in the first place? To protect
Americans accused of crimes abroad?

But only Ginsburg and Breyer seem worried today about keeping promises
we've made to the world. Kennedy, like Scalia, seems to care more about
hanging on to the court's promise to Marbury v. Madison. Either way, I
can't count 5 votes today for the position that President Bush gets to
scrawl a note to Al Gonzales and call it a legal directive the courts must
enforce. Memo to the Congress from Texas: Try saying "no" to the
president. It may just work for you, too.

(source: Slate -- Dahlia Lithwick is a Slate senior editor)

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

Bush attacked over death penalty case


President George W. Bush faced sharp criticism at the US Supreme Court on
Wednesday for abusing his presidential powers in a case involving
international law and the death penalty.

Liberals regularly accuse Mr Bush of grabbing too much power within
America's system of divided government, usurping the authority of the
other 2 branches of government, Congress and the judiciary. Conservatives
normally defend his expansive notion of presidential power, which has been
especially controversial when it comes to authorising torture techniques
in the war on terror.

But in Wednesday's case  which involved a Mexican death row inmate in
Texas and a ruling of the International Court of Justice  the tables were
turned: human rights groups were defending Mr Bush, and conservatives were
attacking him.

The case before the court tests whether the president can order state
courts in Texas to obey a ruling of the International Court of Justice in
the Hague.

The ICJ ordered the US to review the death sentences of 51 Mexicans who
claim they were denied legal help from consular officials in violation of
an international treaty signed by the US. The treaty promises that foreign
governments will be informed when their nationals are locked up in the US,
and offers parallel protection to Americans detained abroad.

The justices clashed on Wednesday over the role of the courts and the
president in enforcing international treaty obligations. The increasing
globalisation of commerce and internationalisation of legal disputes has
led to more frequent disputes over the role international legal opinion
and laws should play in US courtrooms.

Before the court yesterday was the case of Jos Medelln, convicted of the
rape and murder of two American teenagers. Mr Bush wrote a 2-paragraph
memorandum to the Department of Justice saying Texas courts must obey the
ICJ ruling and review Mr Medelln's conviction and sentence to determine
whether his rights were violated because he was not allowed to contact his
consulate.

One of Mr Bushs closest political allies, Ted Cruz, now the
solicitor-general of Texas and arguing for Texas in the case, said the
presidents action "is an extraordinarily broad power to be exercised on
the part of the executive".

Justice Antonin Scalia, one of the courts most conservative justices, said
incredulously: "You're saying we don't need the Congress: the president
can write a domestic law by writing a memo to his attorney- general!"

Critics are concerned that, if the president is allowed to prevail in this
case, he could overturn any state law that conflicts with US foreign
policy. But Mr Medellns lawyer said the president had the power to issue
the order under the constitution.

(source : The Financial Times)

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

Justice not equal in Texas


Ashamed for us all

I am glad that Ronald Gene Taylor is out of jail and that the 14-year hell
he has endured is over (see the Chronicle's Oct. 10 article, "No longer a
prisoner / 'Something needs to be done'"). As a Houstonian, I want to
apologize to him for the time he spent in prison.

Every single case that has been tried in the last 20 years in Harris
County should have all of its evidence re-examined and retested for DNA. I
know this could cost a great deal, but the fact that there are now 3
innocent people out of jail due to the lack of professionalism by the
Houston Police Department's crime lab means that there are probably more.

I am embarrassed for our community that this has happened, and we should
do everything possible to ensure we don't have any more innocent people in
jail.

CATHERINE RITTER ---- Houston

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

Outrageously unfair


Regarding the Chronicle's Oct. 10 article "Shelton sentenced to jail,
probation": Selective justice is alive and well in Texas. The laws are
completely different for the wealthy in Texas, and we have seen this time
and time again. It pays to have a high-powered attorney and connections.
Why waste taxpayers' money trying these cases at all?

In the case of the judge's daughter, Elizabeth Shelton, the weirdest part
is that she will be allowed to remain free until she finishes her school
semester in December, purchase another car and stay close to her family.

The rich and powerful get away with the biggest crimes while innocent
people are put away on mishandled evidence.

It is an outrage that the Houston Police crime lab has blundered evidence
and allowed innocent people to spend time in prison.

MELISSA G. PRYOR----Pearland

(source: Letters to the Editors, Houston Chronicle)

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

Long-lived death row case crawls through courts


When a jury condemned Elroy Chester to death in 1998, it was believed to
be the "swiftest death penalty verdict in Jefferson County history,"
according to The Enterprise archives.

It took only 12 minutes.

But 9 years later, Chester still is alive, and Tuesday's Supreme Court
decision not to review the appeal of a state court's decision didn't move
his execution date much closer.

That's because Chester's lawyer, Jeff Feldman of Alaska, had filed
simultaneous appeals with the U.S. District Court and the Supreme Court.

Feldman said he appealed to the Supreme Court on the state court opinion
to try and expedite Chester's retardation case.

"We've knocked on the Supreme Court's door and they said 'not now' - they
didn't say never," he said.

The U.S. District Court's ruling still is pending. If the court upholds
the state appeals court decision, Chester's lawyer then will appeal to the
Fifth Circuit Court.

And if that appeal fails, it will go to the Supreme Court once again.

Chester, 38, is accused of going on a rampage in Port Arthur during a
7-month period between August 1997 and February 1998, killing 5 people,
shooting five more and raping three, including a 10-year-old girl.

He finally was arrested after killing Port Arthur firefighter Willie
Ryman, 38.

Chester shot Ryman as the firefighter was coming to the aid of his 2
nieces, whom Chester had been sexually assaulting, according to The
Enterprise archives.

Chester, who horrified jurors and spectators at his trial with bizarre and
threatening testimony, got his death sentence for Ryman's slaying.

Besides Ryman, Chester confessed to killing John Henry Sepeda, 78; Etta
Mae Stallings, 87; Cheryl DeLeon, 40; and Albert Bolden Jr., 35.

DeLeon's sister, Lina Ihle, will be glad when Chester is finally executed.

Chester shot Cheryl DeLeon, with whom he worked at Luby's, while robbing
her on Nov. 20, 1997, outside her home.

Ihle was devastated by the loss of a beloved older sister.

"I can't wait 'til the time comes when they're going to kill him," Ihle
said. "I know it's not going to bring my sister back, but I still have
nightmares, and it's been 10 years."

Over and over, while she should be sleeping peacefully, Ihle's mind
obsessively returns to the crime scene, where she tries to save her
sister.

But it isn't just her dreams Chester has violated.

Chester changed the way Ihle viewed the world.

She doesn't like going out at night if she can help it.

She won't have bushes near her home, because Chester hid in the bushes to
sneak up on her sister.

The long, drawn-out appeals process has been hard on her and her family.

"Every time something comes up involving Elroy, it just brings back every
piece of everything that happened. It's still like it was yesterday," she
said.

Ihle hopes Chester's execution will bring her peace.

She intends to be there to witness it.

She said she's even thought about going to the Polunski Unit, where
Chester is housed, to confront him.

"I would really like to go and talk to him and find out why her. ... He
knew her, and I just want to know why he did it," Ihle said.

DeLeon, the oldest of 6 children, was adored by her close-knit family.

"She was a real caring and loving person - it just shocks us that anyone
would have done that to her," Ihle said. "She was just too sweet - very,
very sweet."

Prosecutor Ed Shettle said a lengthy appeals process has become the norm
in death penalty cases.

"It's pretty typical now of the appeals process and the issues that are
raised on appeal," he said. "Other death row inmates have become retarded
since they've been on death row."

Shettle, veteran of a number of capital murder trials, has seen more than
1 death sentence commuted to life during the past few years.

When the Supreme Court ruled against the death penalty for murderers who
committed their crimes when they were younger than 17, John Dewberry and
Whitney Reeves left death row.

Dewberry was sentenced to death in the 1994 killing of Elmer G. Rhode, a
former Lamar University dean and registrar.

Reeves went to death row in 2000 in the shooting death of 14-year-old
Alicia Houk and her father, James Houk, in their Beaumont home.

Walter Bell's sentence was commuted on the basis of a mental retardation
claim.

Bell killed Port Arthur residents Ferd and Irene Chisum, his former
employers, in 1974.

Earlier this year, the Texas Court of Criminal Appeals found insufficient
evidence to show that Kenisha Berry would be a continuing threat to
society and commuted her sentence to life in prison.

In November 1998, Berry killed her newborn baby and put his body, bound
and gagged with duct tape, in a trash bin.

Shettle, like Ihle, looks forward to the day when Chester's appeals run
out.

"When we have the opportunity to request an execution date from Judge
Stevens, we're going to do that," he said. "This man told the jury from
the witness stand if he ever got out he would kill again."

While on the stand, Chester also testified he enjoyed committing crimes
and that his rape victims were lucky he didn't kill them. He threatened
prosecutors and a Port Arthur police officer, according to The Enterprise
archives.

Shettle doesn't believe Chester is retarded.

He noted that Chester was effective at planning and carrying out his
crimes and evading detection for months. While clearly his intellectual
functioning was rudimentary, his adaptive skills were more than adequate,
Shettle said.

Feldman argued that the Texas Court of Criminal Appeals misconstrued the
case law that made it unconstitutional to put a retarded person to death
and that its "definition of mental retardation does not comport with
science or law."

Another possible obstacle to Chester's execution is a pending Supreme
Court decision on the constitutionality of lethal injection, the method
Texas and most other states use to execute murderers.

Last month, the court agreed to review a case involving 2 inmates on
Kentucky's death row.

"I'm real curious to see what they're going to do with that Kentucky case;
I can't imagine what they're going to do," Shettle said.

But for now, Chester's fate is up in the air.

"We just have to kind of sit and wait - we've been waiting 10 years," Ihle
said.

(source: Beaumont Enterprise)

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

Defense: Officer's killer should get life----Dallas: Man convicted in
officer's death has low IQ, lawyers say


Attorneys for a man convicted of murdering a Dallas police officer began
presenting evidence Wednesday to show why he should not be given a death
sentence.

Defense attorney Brook Busbee told jurors that Juan Lizcano grew up
mentally slow and extremely poor in a Mexican village. Ms. Busbee has said
Mr. Lizcano has a limited mental capacity and has scored low on IQ tests.

Defense attorneys hope the jury  the same one that on Tuesday convicted
Mr. Lizcano of capital murder  will sentence him to life in prison instead
of death for the November 2005 slaying of Officer Brian Jackson.

Aleido Reyes Lucio said she taught Mr. Lizcano for a year about 15 years
ago. She told jurors that Mr. Lizcano was slow to learn and that she
graduated him from the 6th grade at age 15 because he was too old to
remain in elementary school. That was the last grade he completed.

She said that she tried to teach him to read the year she was his teacher.

"He was a good boy," she testified. "But Juan's learning was very so
slow."

Officer Jackson was killed while responding to a domestic violence call at
the home of Mr. Lizcano's ex-girlfriend, Marta Cruz, in Old East Dallas.
She had called 911 twice to report Mr. Lizcano threatened her with a gun.
Officer Jackson was searching for Mr. Lizcano when he was shot.

Mr. Lizcano came to the United States illegally in 2000. Ms. Busbee said
he came to Texas to send money home to his family.

A former girlfriend of Mr. Lizcano testified that she did not think he was
mentally retarded. He said he was shy around crowds. "He didn't have any
problems understanding me," Jessica Barron said.

Ms. Barron also testified that Mr. Lizcano was never violent or abusive
toward her.

Wednesday was the 8th day of testimony in the case. Court will not resume
until Monday, when the defense will continue its case.

(source: Dallas Morning News)

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

Sentence for agent's killer considered----McKinney: Jury convicts man, now
must decide between life term, death


Both the prosecution and defense agreed that Kosoul Chanthakoummane killed
a real estate saleswoman in a model home last year. So there were no gasps
or emotional outbursts Wednesday when a Collin County jury found him
guilty of capital murder after deliberating for 30 minutes.

Today, that jury will begin considering the case's main point of
contention: whether Mr. Chanthakoummane should spend the rest of his life
in prison or receive the death penalty for fatally stabbing, beating and
biting Sarah Walker and then stealing her jewelry in July 2006.

"I think the proof of a robbery was circumstantial, but we're not
surprised by the jury's verdict," defense attorney Steve Miears said
outside the courtroom. "This case is about what the appropriate response
is to the murder of Sarah Walker."

That response should be a lifetime of captivity where Mr. Chanthakoummane,
27, can't hurt anyone else, Mr. Miears said.

"From the day he was arrested, he's been back where he belongs," the
attorney said during his closing argument. "He doesn't think like us. He
doesn't think like you. We have a place where we put people like that  in
prison."

Mr. Miears suggested the jury consider the biblical tale of brothers Cain
and Abel. After Cain killed his brother, he denied it. And God's justice
was fair, Mr. Miears said.

"He banished Cain. He didn't kill him," he said, adding that in a similar
fashion juries should "reserve execution for those who cannot ever be
controlled."

But Collin County First Assistant District Attorney Greg Davis disagreed,
calling Mr. Chanthakoummane a "smart, adaptable, calculated" killer who
deserves to die for this crime.

"Words can't capture the horror that must have gone through Sarah Walker's
mind when this man grabbed her, stabbed her and bit her like an animal in
that model home that day," Mr. Davis said, standing in front of her
killer.

Ten of Ms. Walker's 33 stab wounds were fatal, Collin County Medical
Examiner William Rohr said during Tuesday's testimony.

On a police video recording shown to the jury, Mr. Chanthakoummane
repeatedly changed his story during the 2-hour interview after his arrest.
Near the end, he admitted going into the McKinney model home that day, but
he said he never saw anyone in there.

A DNA expert testified that blood found on a dead-bolt lock on the front
door, a curtain cord, the kitchen sink and material under Ms. Walker's
nails matched Mr. Chanthakoummane.

Although Ms. Walker's father, Joe Walker, has said he didn't want his
daughter's killer put to death, his opinion was directly opposite that
held by another daughter, Jackie Mull.

After Wednesday's verdict, Ms. Mull, stepped out of the courtroom and
passed out copies of a short, handwritten statement in which she thanked
the jury for finding her sister's killer guilty.

"The evidence was overwhelming and showed the brutality of a cold-blooded
killer. If the death penalty is reserved for the worst of the worst, I
believe Kosul [sic] Chanthakoummane has earned himself a front-row seat,"
Ms. Mull said.

(source: Dallas Morning News)

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

Texas fights at Supreme Court in death row case----Solicitor general
argues that the World Court and the president don't trump state law in
Mexican inmates controversy


In spirited arguments before the U.S. Supreme Court, an attorney for Texas
said Wednesday that neither a presidential order nor a ruling by the
International Court of Justice should be allowed to trump state law and
interfere with the cases of Mexican inmates on U.S. death row.

Texas Solicitor General Ted Cruz conceded that police violated the 1963
Vienna Convention in denying Jose Medellin, a Mexican citizen, the chance
to contact the Mexican Consulate for legal help after his 1993 arrest in
the gang rape and murder of two Houston teenagers.

But he said President Bush's remedy for the treaty violation  making state
courts review the convictions and death sentences of Medellin and 50 other
Mexican inmates  would give the president unprecedented power over the
judiciary and give the "World Court" authority over U.S. law.

The treaty dispute, which the World Court decided in Mexico's favor after
that country sued the U.S., should be resolved through political and
diplomatic channels, Cruz told the justices. No other nation, including
Mexico, would allow U.S. inmates in their countries to use their court
systems to enforce the World Court's ruling, he said.

He said that long before the World Court's involvement, state and federal
courts had rejected Medellin's consular claim and decided that since he
failed to raise it at his original trial, he had waived it.

Even if Medellin had been represented by his countrymen, he still would
have been convicted and sentenced to death, Cruz said.

Mexican officials, whose country has no death penalty, had argued that if
they had been informed of Medellin's arrest, they would have advised him
not to speak to police without a lawyer present.

Within hours of his arrest, Medellin confessed to a role in the killing of
Jennifer Ertman and Elizabeth Pea.

Medellin's attorney, Donald Donovan, and U.S. Solicitor General Paul
Clement, who sided with Medellin on behalf of the Bush administration,
countered Wednesday that the U.S. voluntarily entered into the treaty more
than 4 decades ago and agreed to resolve international disputes at the
World Court and to abide by its decisions.

Therefore the U.S. must comply, even though it disagrees with the outcome,
they said.

Chief Justice John Roberts said he was concerned about the position on
Medellin that the Supreme Court's role is only to force compliance with
the World Court's ruling.

"We have no authority to review the judgment itself?" he asked.

Justice Anthony Kennedy asked if the court could "interpret the meaning of
the (World Court) ruling, if it's ambiguous,"saying that it was.

Justice Antonin Scalia balked at Clement's assertion that the president's
order for state courts to review the Mexican cases was a critical part of
the case.

Clement had argued that the president alone has the power to conduct
foreign policy and that his order trumps everything.

"You're telling us we don't need Congress? The president can make law by
writing a memo to his attorney general?" Scalia asked.

And Scalia said he had a problem with giving the World Court any say in
U.S. domestic law.

"I am rather jealous of that power," he said.

But Justices Stephen Breyer and Ruth Bader Ginsburg indicated they were
leaning toward cooperation.

"The United States gave its promise," Ginsburg said. Outside on the
courthouse steps, Donovan agreed. "The United States did not have to go to
this court, but once we agree to go, we abide by its decision because we
are a country of laws," he said. "A deal is a deal." A decision is
expected by summer. (source: Houston Chronicle)

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

Death row case pits Bush administration against Texas


Mexican national convicted of raping, murdering 2 Texas teenagers

Suspect wasn't allowed to contact consulate, violating a treaty obligation

Bush administration trying to enforce international court's ruling

Texas argues the president does not have authority to order new trial


The Supreme Court appeared divided along ideological lines Monday when
hearing arguments over the fate of a Mexican murderer on death row, an
unusual capital appeal that pits the state of Texas against the Bush
administration.


The Supreme Court is considering a case that could affect more than 51
Mexican nationals on death row.

The case -- which involves questions about federal authority, state
sovereignty and foreign treaties -- revolves around Jose Ernesto Medellin,
who faces execution for 2 slayings.

Medellin was 18 when he participated in the June 1993 gang rape and murder
of two Harris County, Texas, girls, 14-year-old Jennifer Ertman and
16-year-old Elizabeth Pena. He was convicted of the crimes and sentenced
to death.

At issue is whether the state must give in to a demand by President Bush
to allow the prisoner new court hearings and sentencing.

Bush made that demand reluctantly after an international criminal court
ruled in 2003 that Medellin was improperly denied access to his consulate
before his original prosecution, a violation of a treaty signed by the
United States decades ago.

The nearly 50 other Mexican nationals awaiting execution in various states
also would be affected by a high court ruling. Oklahoma commuted a capital
inmate's sentence to life in prison after the international judgment.

Bush said he disagreed with the International Court of Justice's
conclusions, but agreed to comply with them.

"The United States will discharge its international obligations," Bush
said in a February 28, 2005, executive order.

But a Texas appeals court later rejected that executive authority. Judge
Sharon Keller concluded the president's "unprecedented, unnecessary, and
intrusive exercise of power over the Texas court system cannot be
supported by the foreign policy authority conferred on him by the United
States Constitution."

Arguing before the court Wednesday, Texas Solicitor General Ted Cruz
called the president's action "a very curious assertion of presidential
authority."

The justices were particularly animated in their questioning, and oral
arguments lasted nearly 90 minutes, well beyond the usual 60, and centered
on what role each branch of government plays to give force to
international treaty obligations.

Lawyers for the administration and Medellin argued Bush properly exercised
his unilateral executive authority, which several justices questioned.

"The thing that concerns me about your position is that it seems to leave
no role for this court in interpreting treaties as a matter of federal
law," said Chief Justice John Roberts on repeated occasions, "even if we
determine that [international] judgment was based on a legal error,"
inconsistent with federal law.

But Medellin lawyer Donald Donovan argued "three treaties ratified by the
president and Senate said when this country commits itself to do
something, we're going to do it."

That argument received some support from Justice Ruth Bader Ginsburg.

"The United States gave its promise," Ginsburg said. "It voluntarily
accepted this jurisdiction. It didn't have to."

Justice Anthony Kennedy offered a measure of support for the position of
the Texas court. "I think Medellin did receive all the [state] hearings
he's entitled to under the [international] judgment," he said.

He added, "It is up to us to determine how we are going to comply with the
international obligation, and there is no obligation on the part of the
state to comply with that law."

Kennedy's interpretation of the case could prove the key to how this case
is decided. The 71-year-old justice appeared to side mostly with the
state, but did offer a few encouraging comments to the other side.

The Constitution's Article VI says "all treaties made ... shall be the
supreme law of the land, and the judges in every state shall be bound
thereby."

"The Constitution means what it says," said Justice Stephen Breyer. "But
there happened to be a few instances where the nature of the obligation or
the intent of the party makes it difficult to enforce it as a binding
judgment of a[n international] court. That is not this case."

The White House typically backs states in their power to carry out
executions, but Justice Department officials said in these instances, the
president's power to conduct foreign policy outweighs state interests.

The Supreme Court originally heard the Medellin case in 2005 but did not
rule on the merits, waiting instead for lower courts to resolve the
federalism angle. Now that state courts have weighed in, it rests with the
9 justices to finally resolve the matter in coming months.

(source: CNN)