[Deathpenalty]death penalty news----TEXAS, N.Y.
rhalperi at mail.smu.edu
Wed Jul 27 13:02:41 CDT 2005
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
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
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
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
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
"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
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
"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
(source: Austin American-Statesman)
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
"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)
More information about the DeathPenalty