[Deathpenalty] death penalty news----TEXAS

[Rick Halperin]

April 27



TEXAS:

Death ruling tossed----Decision could be far-reaching; Brent Ray Brewer:
Death sentence was thrown out.


The U.S. Supreme Court on Wednesday overturned the death sentence of an
Amarillo man, a ruling that could have dramatic consequences for almost 40
death row inmates.

The court's decision to throw out the death sentence against Brent Ray
Brewer is expected to toss the case against him back to U.S. District
Judge Mary Lou Robinson, who could order his sentence be commuted or could
even order a new trial, said Michael Samonek, one of Brewer's attorneys.

"Do we expect (a new trial), no," Samonek said. "We think there are even
more facts that now should be brought up about the crime because we
believe there are some other facts that might even mitigate against guilt.
She will have to make the call." A Randall County jury convicted Brewer of
capital murder in 1991 for the April 26, 1990, stabbing death of Robert
Doyle Laminack, 66.

Randall County Criminal District Attorney James Farren said that in the
wake of the Supreme Court's opinion, he will speak with Laminack's family
about retrying the punishment phase against Brewer. If he isn't retried,
Brewer's sentence will be commuted to life in prison, Farren said.

"We will have to talk with the family and let them help us decide what
they want to do," Farren said. "This is tragic. This is not justice. This
is a portion of the United States Supreme Court and a portion of the
judicial system of this nation, who regardless of what the people want,
are determined to get rid of the death penalty. "If they can't do that
from the front door, they do it from the back door," Farren said.

Farren said the opinion of Laminack's family about how his office will
proceed will be a huge factor, but not the only factor. In August 2004,
Robinson, citing a Supreme Court opinion, issued a ruling that said
Randall County jurors should have had special instructions to consider
mitigating evidence before sentencing Brewer to death.

In the appeal to Robinson, Samonek argued the trial court's refusal to
permit a special issue or instruction on mitigating evidence during the
sentencing phase of his trial violated Brewer's constitutional rights. In
March 2006, the 5th U.S. Circuit Court of Appeals ruled that Robinson
erred in conditionally granting Brewer's petition for habeas corpus and
denied Brewer's petition.

Brewer's appeal to the Supreme Court, which was combined with 2 other
Texas capital murder cases, is based on jury instructions not used since
1991.

Courts later found that the instructions did not give jurors a chance to
review mitigating evidence that would lead them to impose a life sentence,
rather than death.

Justice John Paul Stevens, in his opinion for the court, wrote that
justices have long held that a sentencing jury must be able to give a
"moral response" to a defendant's "mitigative" evidence.

Stevens wrote that a jury should be able to review evidence that tends to
diminish his or her culpability when deciding to sentence a defendant to
death.

Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David
Souter and John Paul Stevens joined Stevens' opinion. Chief Justice John
Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas
dissented.

"I perceive this as another blistering rebuke of the 5th Circuit and the
Texas Court of Criminal Appeals on their application of Supreme Court
death penalty jurisprudence," said Philip Wischkaemper, capital assistance
attorney for the Texas Criminal Defense Lawyers Association. "They really
didn't change the law. This is not departure from what has already been
case law." Farren described Brewer's mitigating evidence as particularly
weak.

"This is the mitigating evidence against Brewer: He spent one night in a
hospital 3 months before the murder and said he was depressed. Apparently,
he told someone years before that he might be suicidal. He said he took
drugs as a child and his father wasn't really that nice to him. That's
it."

"And for that, the brutal slaughter of Mr. Laminack is swept aside,"
Farren said. "Now this man, 18 years later, comes back to Texas and this
family has to go through another trial to retry this case. " Samonek and
Farren both said the court's opinion could have a dramatic effect on the
cases of at least 40 inmates who are now on death row with cases like
Brewer's.

Farren said there weren't any other cases similar to Brewer's in Randall
County.

"It should change their position and their condition," Samonek said. "This
is, quietly, a monumental event." The Associated Press contributed to this
report.

(source: Amarillo Globe-News)

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

Supreme Court kills justice ---- Murderer's life spared by 5-4 ruling


What is ironic about the U.S. Supreme Court's controversial ruling
Wednesday reversing the death sentences of 3 convicted murderers in Texas
- one from Randall County - is that guilt was never mentioned.

In all the legal wrangling in these cases that has clogged up the justice
system for nearly two decades and reached the highest court in the land,
the focus has been on finding some way to prevent the ultimate form of
punishment.

Guilt is secondary, which seems contrary to the U.S. justice system and
its goal of fairly determining guilt or innocence.

In these three cases, guilt isn't the question. What seems of primary
importance, at least to a segment of the legal profession, is finding a
way to justify that guilt.

Almost exactly 17 years ago - April 26, 1990 - Brent Ray Brewer and
co-defendant Krystie Lynn Nystrom asked the 66-year-old owner of the
Amarillo Floor Company for a ride to the Salvation Army. While in the
owner's car, Brewer stabbed the man to death and stole his wallet. He got
$140. The duo then ran to a friend's apartment, changed clothes and took
Brewer to a hospital for a cut on his hand. They later fled to Red Oak
before being caught in May 1990. Nystrom received a life sentence for
capital murder.

According to 5 of the 9 justices on the Supreme Court, the jury that found
Brewer guilty of this heinous crime did not determine his punishment
appropriately because of a lack of "mitigating evidence."

In today's warped legal atmosphere, where guilt is an afterthought,
"mitigating evidence" usually means two things: mental retardation and/or
child abuse and neglect.

According to the Texas Department of Criminal Justice, Brewer had a
9th-grade education and had worked as a farmhand. Evidently, this limited
level of intelligence could have prevented him from knowing that brutally
stabbing a man to death was wrong. The fact that Brewer fled Amarillo to
avoid apprehension would seem to indicate this was not the case.

It has been alleged that Brewer was abused as a child. Even if such
allegations are accurate - which should be proved in court - should this
absolve a cold-blooded murderer?

Did Brewer have no comprehension of the evil of his actions because he
allegedly suffered from mistreatment as a child? Unfortunately, there are
countless individuals who have been the victims of child abuse. The
overwhelming majority do not choose later to stab a person to death.

What is most unfortunate is that the family members and friends of
Brewer's victim will have this horrible episode dredged up again as
Brewer's case and sentencing is spit back into the justice system.

What is most disappointing is the reason: not to find guilt or innocence,
but to contrive some sort of legal loophole to prevent the punishment that
criminals such as Brent Ray Brewer deserve.

(source: Editorial, Amarillo Globe-News)

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

3 death sentences reversed-----County weighing murderer's retrial


A man sentenced to die for killing a San Angelo man nearly 20 years ago
has escaped the death penalty for now.

The U.S. Supreme Court has reversed the capital sentence of Jalil
Abdul-Kabir, formerly named Ted Calvin Cole, in the 1988 strangling death
of 66-year-old Raymond Richardson.

2 other death row convictions of Texas inmates also were reversed by high
court decisions issued Wednesday. The justices in a 5-4 ruling found that
juries in the 3 cases were not adequately instructed.

Cole was 31 when he was found guilty by a jury and sentenced to death.

Richardson was found dead in his home on Dec. 13, 1987, having been
strangled with a nylon dog leash.

In Cole's case, the justices said, jurors were not told to give sufficient
weight to the circumstances of Cole's childhood that contributed to his
violent behavior as an adult.

It will be up to local prosecutors in all three cases to decide whether to
seek another penalty-phase trial to seek the death sentence again; if
prosecutors decline to do so, the inmates will serve life sentences. The
jury instructions that the Supreme Court found defective have not been
used in Texas since 1991.

Steve Lupton, Tom Green County district attorney, was unavailable for
comment. Cole's attorney, Robert C. Owen, also was unavailable.

Police records say Cole and 2 others killed Richardson as part of a
robbery in which they found $20.

Kelly Christina Hickey, 37, and Michael Dean Hickey, 38, are both serving
prison sentences for murder. Kelly Hickey, Richardson's granddaughter, was
sentenced to 40 years, which she is serving at the Murray facility in
Gatesville. Michael Hickey, her husband, was sentenced to 60 years in
prison and is being held at the Clements facility in Amarillo.

In December 1987, Cole was staying in an abandoned motel in San Angelo
with his stepbrother, Michael Hickey, and Hickey's wife, Kelly. The three
decided to rob Kelly Hickeys grandfather, Raymond Rich-ardson, and
strangle him. They visited Richardson in his home and after several hours,
Cole pushed Richardson to the floor, held him down and strangled him with
a dog leash. The group put his body under a bed and searched the house for
money but found only $20 in Richardson's wallet, which they used to buy
beer and bacon.

The next morning, Michael and Kelly Hickey surrendered to police and gave
statements. Police arrested Cole at Richardson's house, and he gave 2
statements in which he admitted killing Richardson.

Cole had been imprisoned previously on another murder charge. In 1972, he
was convicted of killing Gary Don Dedeker in San Angelo and sentenced to
15 years in prison. He served 5 1/2 years of that sentence.

Cole was convicted on 2 aggravated sexual abuse charges in 1982 and was
sentenced to 15 years for each crime. He again served 5 1/2 years.

Records show that Cole was granted at least two stays of execution  both
in 1991.

Cole lodged numerous appeals in the ensuing years, culminating in
Tuesday's Supreme Court decision.

(source: The San Angelo Standard-Times)

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

UT Law students assist in death penalty reversals----Law Clinic argues
improper instruction given to jury members


The U.S. Supreme Court reversed the death sentences of three Texas inmates
Wednesday, who the UT School of Law Capital Punishment Clinic assisted in
defending. In January, LaRoyce Smith, Brent Brewer and Jalil Abdul-Kabir
all appealed their death sentences with the belief that the jury
instructions provided before 1991 were unconstitutional, said Rob Owen, an
attorney for the inmates and a professor in the law school.

The clinic complained to the court about jury instructions prior to 1991,
which did not advise the jury about the option to impose a life sentence
rather than a death sentence, said Owen, who has represented Abdul-Kabir
for the past 8 years.

Students enrolled in the law school's death penalty clinic assisted law
professors Owen and Jordan Steiker in representing the inmates, said Laura
Castro, spokeswoman for the UT School of Law. Law professors Maurie Levin
and Jim Marcus also assisted with the cases, Castro said.

Since about 80 % of current death row cases were ruled on after 1991, only
about 40 to 60 cases are affected by this Supreme Court ruling, Owen said.

"It's sort of shocking how unfair some of the trials are," said Mary Beth
Hickcox-Howard, a second-year law student who worked for the clinic last
fall.

Students acquire many skills working on the clinic, Owen said. Several
students attended practice with lawyers and learned how lawyers prepare
for oral arguments, Owen said.

"It was a real peek behind the scenes," Owen said.

Depending on the case, students helped out in various ways, including
research and reviewing court records, Hickcox-Howard said. The clinic
provided a very unique learning experience from classes, and the law
school paid for the students' trip to Washington, D.C., Hickcox-Howard
said.

"Most lawyers never get to work on a Supreme Court case in their entire
careers. It's a really exciting experience," Hickcox-Howard said.

The law school offers many different clinics to students, including
environmental law and domestic violence, in which students actually
practice in a real court setting, Owen said.

The clinic presented another case to the Supreme Court April 18, making a
total of 4 cases that the clinic has presented to the Supreme Court this
year.

Lately, the focus on the death penalty and problems within the capital
punishment system have been very heavy around the UT campus. This year
alone, the Young Conservatives of Texas debated with the Campaign to End
the Death Penalty, and the Texas Coalition to Abolish the Death Penalty
held their annual conference.

(source: The (Univ. Texas) Daily Texan)

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

Man who murdered Tri-Citian may get new trial


A Supreme Court decision Wednesday might lead to a 4th trial for a Texas
death row inmate convicted of killing Kennewick college student Mike
McMahan in 1975.

The Supreme Court overturned death sentences for 3 Texas death row
inmates, finding jury instructions were inadequate. Although McMahan's
killer, Ronald Chambers, was not among them, his case is similar.

McMahan's sister, Janna McMahan of West Richland, was preparing to fly to
Texas to watch Chambers' execution in January when he was granted a
reprieve three days before the execution.

Chambers' attorney argued that jury instructions at the third trial did
not specify that factors such as character evidence and Chambers'
upbringing in government low-income housing could be considered in
choosing the sentence.

His attorney cited Smith vs. Texas -- the case decided Wednesday.

Justice Antonin Scalia stopped the Chambers' execution until the Supreme
Court decides whether to consider his petition, which was not expected
until after the Smith vs. Texas decision.

The jury instructions in the Chambers case were the same as those in Smith
vs. Texas, reported The Associated Press.

In 1975, Mike McMahan was a senior engineering student at Texas Tech
University, and in April he attended a student engineering conference in
Dallas. As he left a popular nightclub about 12:45 a.m. with a former
classmate, they were abducted by Chambers and a 2nd man.

Mike McMahan, 22, and his friend were let out of the car at the Trinity
River bottoms and shot as they walked to the river. When Mike McMahan
called out, Chambers returned and beat him with the butt of the shotgun
until he died.

Janna McMahan and her parents, Mabry and Bennie McMahan of Kennewick, have
sat through 3 trials after 1 death sentence conviction and then the next
was overturned.

In the 1st case questions were raised about whether a psychiatrist who
interviewed Chambers had made clear that anything he said could be used as
evidence against him. A 2nd trial was held in 1985, but the guilty verdict
for Chambers, who is black, was overturned because there was no black on
the jury. The 3rd trial was held in 1992.

Each was difficult, Janna McMahan said in January.

Chambers has been on death row since 1976, longer than any other prisoner
in Texas.

The McMahan family has been particularly concerned that Texas did not have
a life-without-parole penalty when Mike McMahan was killed.

If the case were to be retried and a jury did not sentence Chambers to
death again, he would be eligible for parole.

(source: Tri-City Herald)

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

Roberts Pans Texas Death Penalty Opinion


When Chief Justice John Roberts took his center seat for the 1st time in
October 2005, John Paul Stevens, the court's senior justice, wished him "a
long and happy career in our common calling."

This week, Roberts had some words for Stevens, who turned 87 last week.
And they were not nearly so kind.

In a pointed dissent from decisions overturning death sentences for 2
Texas inmates, Roberts accused Stevens of engaging in revisionist history.

Stevens, leading a 5-justice majority, said Texas state courts should have
set aside the death sentences because the Supreme Court had made clear
that such sentences could not stand if they were imposed as a result of
flawed jury instructions that Texas used until 1991.

Roberts, a dissenter in six of the court's 10 most recent rulings, wrote
that contrary to being clear, Supreme Court death penalty law over the
years has been a "dog's breakfast," a mess of "divided, conflicted and
ever-changing analyses." State courts would find it difficult, if not
impossible, to discern federal law from those rulings, he said.

Roberts concluded his 16-page dissent on a sarcastic note, at odds with
his amiable image. "Still, perhaps there is no reason to be unduly glum,"
Roberts said, taking direct aim at Stevens. "After all, today the author
of a dissent issued in 1988 writes 2 majority opinions concluding that the
views established in that dissent actually represented 'clearly
established' federal law at that time. So there is hope yet for the views
expressed in this dissent."

"Encouraged by the majority's determination that the future can change the
past, I respectfully dissent," he concluded.

Justice Anthony Kennedy, by contrast, is having the kind of year most
judges only dream about.

It is not just his recent star turn as the presiding judge in the trial of
Hamlet at Washington's Kennedy Center for the Performing Arts, either.

Kennedy is a robust 31-1 in signed opinions issued since the court began
its current term in October. He is 12-0 in 5-4 cases, the only justice in
that narrow majority each time in cases concerning abortion, the death
penalty and global warming.

Kennedy has been in the majority nearly 97 % of the time. Justice David
Souter, who has dissented 5 times, is 2nd at 84 %.

At the other end are Justices Antonin Scalia and Clarence Thomas. Despite
the more conservative bent of this court, Scalia and Thomas have dissented
12 times each, putting them in the majority in just over 60 % of the
court's cases so far.

Scalia dissented from 8 of the court's 10 most recent decisions, although
he was in the majority in the recent abortion case, among the term's most
important.

Kennedy's lone dissent this year was in a case striking down California
sentencing rules that allowed judges, rather than juries, to determine
facts that justify harsher prison sentences. Kennedy consistently has
taken the position that judges should have discretion in sentencing.

The number of death sentences imposed by juries and the number of actual
executions are falling, but the court's interest in capital punishment
continues unabated.

More than 10 % of the cases argued before the justices from October to
April involved death row inmates.

Even with Wednesday's decisions in favor of three Texas prisoners, the
court has four death penalty cases still to decide this term.

Of those, only one is from Texas, where the overwhelmingly majority of
executions occur.

Of 15 people executed this year, 13 have been from Texas, including one
man put to death Thursday night. One was in Ohio and the other, Oklahoma.

One explanation for the decision to consider so many death penalty cases
may be how closely divided the justices are over capital punishment.
Kennedy typically swings between the court's conservative and liberal
blocs.

He sided with the liberals in the Texas cases, but also was the deciding
vote in November to reinstate the death penalty in a California case.

"These cases reinforce that we've got 4 and maybe 5 who are always going
to heavily, heavily scrutinize any death case," said Douglas Berman, an
Ohio State University law professor who specializes in criminal
sentencing. "And we have 4 and maybe rarely five who are barely ever going
to second-guess in these death penalty cases."

The problem, as Berman sees it, is that Supreme Court rulings on the death
penalty often are limited to the specific case before the court, unlike
other cases that more frequently have wide-ranging ramifications.

The California case is a good example.

The state has had a moratorium on executions in place since February 2006.
The defendant, Fernando Belmontes, has been in prison for a
quarter-century for the murder of a California teenager in 1981.

(source: Associated Press)

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

LOCAL LAWMAKER CALLS FOR SUSPENSION OF DEATH PENALTY


A local state legislator says the governor of Texas should be given the
authority to suspend the death penalty.

Representative Elliot Naishtat of Austin says right now, Governor Rick
Perry could not establish a moratorium on the death penalty, even if he
wanted to.

He says his bill would give the governor authority to temporarily halt the
death penalty, so a blue ribbon panel or the Legislature could study how
it's administered.

Naishtat says his bill doesn't mandate that we have a moratorium. But he
says a constitutional amendment would give the governor the authority to
temporarily suspend the death penalty. He says governors in other states
have the ability and he says it works well for them.

(source: KLBJ News)