[Deathpenalty] death penalty news----TEXAS

[Rick Halperin]

Jan. 13



TEXAS----female may face death penalty

Woman charged in death of newborn----Mother of baby found in trash bin
could face the death penalty


A capital murder charge was filed Friday against a woman whose newborn
suffered blunt force trauma and may have suffocated before being found
dead in a plastic bag thrown into a trash bin.

The Dallas County medical examiner's office has ruled that the 9-pound
boy, found the night of Dec. 30 in a bin at the Delmar Villas Apartments
at 6646 Ridgecrest Road in northeast Dallas, was killed by "homicidal
violence."

Liliana Viveros Liliana Viveros, 23, could face the death penalty or life
in prison if she is convicted of capital murder.

"It's really too early for us to decide if we are going to pursue the
death penalty," said Dallas County District Attorney Craig Watkins. But he
said the death penalty "is on the table."

Ms. Viveros' capital murder case is the first that Mr. Watkins has had to
consider since taking office this month.

"Any time you have a child that dies at the hands of a parent, that's
something to consider," he said. "We'll look at the background of the
individual and the facts of the case and make our decision."

Ms. Viveros told investigators she hid her pregnancy because she was
embarrassed because she had been sexually assaulted. Family members said
that Ms. Viveros locked herself in a bathroom for an hour and then emerged
with a plastic bag the night the newborn's body was discovered.

That evening, Ms. Viveros began feeling faint, and an ambulance was called
to treat her. At the hospital, doctors realized she had just given birth,
police said. The woman wouldn't tell the authorities where to find the
baby, police said.

Ms. Viveros was arrested Jan. 3 on suspicion of tampering with physical
evidence.

At the Dallas County Jail, Ms. Viveros had declined an interview request.
Her attorney did not return a phone message Friday.

The baby's mother could have avoided all charges under the state's "Baby
Moses" law, enacted in 1999. It allows parents to anonymously relinquish
their unharmed babies, up to 2 months old, at fire stations, hospitals or
adoption agencies with emergency medical personnel  no questions asked.

The trash bin in which the boy was found was about a mile from
Presbyterian Hospital of Dallas, where he was pronounced dead. The bin was
also two miles from 2 Dallas fire stations.

(source: Dallas Morning News)

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

DA reportedly turned down Chanthakoummane plea deal


When the Collin County District Attorney's Office filed a motion to seek
the death penalty against Kosoul Chanthakoummane, 26, of Dallas for the
capital murder of Sarah Anne Walker, 40, of Frisco, his attorney, Steven
R. Miears, of Dallas, asked Assistant District Attorney Greg Davis if they
would consider a plea bargain.

The DA's Office turned them down, said Joe Walker, Sarah's father.

According to an e-mail sent from Davis to Mr. Walker, Miears spoke with
Davis about a possible plea deal on the morning of Nov. 7, saying
Chanthakoummane was willing to plead guilty and accept a sentence of life
without parole. Davis also invited Walker to discuss it with his family
then with him.

"So I wrote him back, and said "I would be for allowing him to plead out
for life without parole, and I would be happy to discuss it," Mr. Walker
said. Then after spending time with his family, Mr. Walker said Davis
e-mailed him again and told him District Attorney John Roach turned down
the offer.

"3 days later, he wrote me back and said that the DA John Roach declined
life without parole and were going to proceed with the capital murder
charge," Mr. Walker said. "I was irritated. I guess it was probably a
matter of formality that they sent that on, but I guess they had to or
they were required to (pursue the death penalty)."

"I think I wrote them back, and asked, 'Why bother asking us?'" Mr. Walker
said. "They know it because I mentioned that at the police department
because I was not for the death penalty."

Mr. Walker said he and his family have shown a great deal of appreciation
and thanks for all the hard work the McKinney Police Department and DA's
Office have put into her daughter's murder case, but he was disappointed
he didn't have a chance to discuss the offer before Roach made his
decision.

Davis said in a released statement they are compelled to pursue sentences
for cases based on the entire public's needs.

"We respect Mr. Walker's beliefs and regret his loss," Davis said.
"However, we must consider the needs of the entire community in every case
that comes before us - and those needs led us to pursue the death penalty
in this case."

Miears said it is his job to explore all possible avenues on behalf of his
client.

"My general response is going to be along the lines of I have a duty to
explore any and all possible ways to resolve a case, which include plea
bargain discussions," Miears said. "But as to the details of what those
discussions are, I'm not at liberty to discuss them."

Davis also declined to discuss details of the discussion.

(source : McKinney Courier-Gazette)

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

State's 1st black district attorney says, 'This is a new day'


Craig Watkins had no luck getting hired as an assistant at the Dallas
County district attorney's office. Now he runs the place.

Watkins is the state's 1st black district attorney. He took over an office
this month where a prosecutor once produced written guidelines for keeping
minorities off juries.

The victory fulfilled a dream for Watkins, a South Dallas defense attorney
and business owner and the 1st Democrat to hold the post in 20 years.

He failed twice at being named an assistant DA. He has no prosecutorial
experience but is brimming with confidence.

"I'm thankful for the fact that they never would hire me. If they did, I'd
be just like one of them," he said.

As if to show he's not one of "them," he made headlines by firing 10
high-level prosecutors.

Watkins is a tall, imposing man with a strong will to win. He seems a bit
uncomfortable with the media but answers questions with almost startling
directness.

Robert Kepple, executive director of the Texas District and County
Attorneys Association, said he has found no record of any previous black
DAs in the state.

Watkins told The Associated Press during a recent interview that
diversifying the staff of more than 200 prosecutors is among his highest
priorities.

"The biggest change at the district attorney's office in Dallas County is
that it is going to look like Dallas County," he said. "For a long time
the leadership in the district attorney's office has all been white men."

He seems genuinely surprised that his precedent-setting election victory
has gained so much attention.

"Somebody's telling me every day that this is a big deal," he said. "I
just didn't figure that it was that big of a deal. It was going to happen
one day .... I actually think it's kind of a disgrace that it took this
long to happen."

Watkins was part of a local Democratic landslide. Democrats snuffed out
two decades of GOP rule last fall by sweeping 42 judicial races and 6
other countywide offices.

"Demographics are the big reason. It's really a combination of local
demographics overlayed with a national trend in favor of the Democrats in
2006," said Cal Jillson, a political scientist at Southern Methodist
University in Dallas.

Watkins, vastly outspent and not well known despite a strong showing in an
unsuccessful attempt four years ago, maintains that demographic shifts
played only a minor role.

"The media pretty much was behind my opponent because of his resume from
the district attorney's office," he said. "But the district attorney's
office in recent times has pretty much failed the residents of Dallas
County. I don't think the media picked up on that."

State Sen. Royce West, D-Dallas, initially supported another candidate for
DA four years ago. But when Watkins won the Democratic primary, West
realized he was a serious contender. Watkins now considers West a mentor.

"He was very focused on winning the DA's race. I said, 'Here's a guy who's
going to go places," said West, an unsuccessful candidate 20 years
earlier.

West lauds Watkins' "out-of-the-box ideas" on criminal justice.

"The mistake my Republican friends made when they were swept into office
in the '80s under Reagan, there was a big scare about crime," Watkins
said. "They built prisons on every major highway and said 'Let's lock 'em
up, and they'll never get out again.' Obviously that hasn't worked."

Critics accuse Watkins, 39, of being soft on crime. Watkins calls his
approach "smart on crime."

He promises to be tough on murderers and rapists but focus on
rehabilitation programs for lesser offenders. He repeatedly talks about
"correcting" or "fixing" defendants for the greater good of the community.

"When you deal with someone who got caught with a rock of cocaine, or a TV
that's going for a rock of cocaine, if they're going through any system,
we need to make sure they're fixed," he said. "These people made bad
decisions in life. They're not haunted forever. If they are haunted
forever, then they will forever be a criminal."

Opponents have attacked his approach. During the campaign, he also was
criticized for problems with the Internal Revenue Service and suits filed
against him over financial disputes.

He said he considers his disputes with the IRS a "badge of honor," and
said the government is "trying to pay for the war in Iraq."

He said the lawsuits are a byproduct of being a businessman.

"I'm in business," he said, "and they say if you're not been sued, you're
not in business."

Watkins' success at the ballot box is heavy with symbolism, especially
because of the office's history of problems related to race.

The U.S. Supreme Court in 2005 cited racial discrimination in overturning
the death sentence of murder convict Thomas Miller-El.

Miller-El was sentenced to death row in 1986 by a 12-member jury that
included 1 black. Prosecutors struck 10 of the 11 blacks eligible to
serve.

The high court cited a manual, written in 1969 and used until at least
1980, that instructed prosecutors on how to exclude minorities from Texas
juries. Supreme Court Justice David H. Souter called racial discrimination
in Dallas County's jury selection process unquestionable.

"If anything more is needed for an undeniable explanation of what was
going on, history supplies it," Souter wrote in the 6-3 decision. "The
prosecutors took their cues from a 20-year-old manual of tips on jury
selection, as shown by their notes of the race of each potential juror."

The manual was written by Jon Sparling, a top assistant to longtime Dallas
District Attorney Henry Wade.

Watkins is planning to retry the Miller-El case. He told the AP: "The
guy's guilty as hell.....If they'd done it right in the first place, he'd
been gone a long time ago."

Questions about race and fairness in Dallas County are not relegated to
the distant past.

In 2005, a newspaper reported that that prosecutors excluded eligible
blacks from juries at more than twice the rate they turned down whites.
And last year, at least one candidate for the office wanted to be sure GOP
voters knew Watkins is black.

The candidate, who lost in the Republican primary, displayed a photo of
Watkins at campaign events and told audiences Watkins had an office on
Martin Luther King Jr. Boulevard.

"That's just old politics," Watkins said. "He was trying to educate the
voters that we had this black candidate from South Dallas running for
district attorney.

"A lot of folks don't realize that times have changed," he said. "People
don't care what color you are and where you came from...A few people
thought we were still living in the Henry Wade era."

Watkins is the 1st DA with no connection to Wade, the former prosecutor
who is an almost reverential figure for some.

"This is a new day. A person who is African-American or Hispanic can be
the district attorney and the sky is not going to fall," he said. "We can
dispense justice just like everybody else.

"I just wish in Texas in general folks would get over the color thing,
look at folks for who they are and what they bring to the table and give
them an opportunity."

(source: Associated Press)

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

A stunning baby step for justice


The Court of Criminal Appeals, Texas' highest court on criminal matters,
issued a stunning order just before Christmas.

It told a Harris County judge to investigate whether an attorney who filed
an appeal for a man on death row had done an adequate job.

In particular, it told District Judge Jim Wallace to investigate whether
it was true that the lawyer, whom the judge had appointed to the case:

Never visited his death row client or provided him with copies of his
pleadings so that the client could help with the appeal.

Refused to take calls from the man's family.

Told another attorney that he had filed a "skeletal writ" in the case
"because he was ordered to do so by the court," and did not consider
himself to represent the client.

Filed an appeal so cursory as to "constitute an abdication of
responsibility as applicant's attorney."

Reasoning so bizarre . . .

The fact that an appeals court would ask a judge to investigate such
serious allegations before putting a man to death doesn't strike you as
stunning?

Then you don't know the Texas Court of Criminal Appeals. Their reasoning
has, at times, been so bizarre that something as rational as the above
order can take your breath away.

I covered some of this ground in a column 5 days before this order came
down. The Legislature in 1995 required for the 1st time that indigent
convicts on death row be given "competent counsel" at state expense for
appeals.

The idea is that the citizens of Texas believe in the death penalty but
want a fair and thorough review before someone is executed.

The author of the language, contained in a bill designed to limit convicts
to one "habeas corpus" appeal, said during the floor debate that since
"you get one bite at the apple ... we are going to give you one very
well-represented run at a habeas corpus proceeding."

Spectacularly worthless

Despite that clear reasoning, the Court of Criminal Appeals ruled in 2002
that the law required only that the lawyer be "competent," not that he or
she actually does a competent job in any particular case.

The effect of the ruling was that if a lawyer is on a list maintained by
the Court of Criminal Appeals from which district judges can make the
appointments, he or she is, as a matter of law, competent.

It doesn't inspire confidence that some lawyers remained on the list even
after local judges found them to have filed baldly incompetent appeals.

Some even filed appeals in which they confused their clients with other
crimes.

After a series by the Austin American-Statesman detailed a number of cases
in which spectacularly worthless appeals were filed, the Court of Criminal
Appeals decided it would remove attorneys who filed such appeals.

But their clients were, as far as the court was concerned, out of luck.
They should have made the judge appoint better lawyers.

So this is the 1st time the court has intervened to investigate whether an
appeal was inadequately prepared.

It happened only because the death row inmate, convicted murderer Juan
Reynoso, filed a motion with the court alleging that Houston lawyer Steven
"Rocket" Rosen acted as described above.

Had Reynoso's motion arrived the day after the high court rejected his
appeal based on Rosen's allegedly perfunctory filing, he presumably would
have used up his one shot.

Rosen, a veteran criminal defense attorney who represented two defendants
in the Branch Davidian case, says the allegations are nonsense.

"We talked to him," Rosen said. "He wanted to die. We went to visit with
him. He didn't want to meet with us. You gotta read the transcript of his
trial and see how he treated his lawyers. He wasn't a human being."

But Mandy Welch, a lawyer who helped Reynoso file his motion for a new
attorney, said it was true that Rosen had told her he filed the writ only
because the judge told him to and that he didn't consider himself to be
Reynoso's lawyer.

Who's right? That's what Judge Wallace is ordered to determine. He will
take testimony and recommend to the Court of Criminal Appeals whether
Reynoso should be given another appeals attorney.

It's a baby step toward a justice system worthy of the name.

Still, it's a stunning baby step.

(source: Rick Casey, Houston Chronicle)

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

Snub of high court ruling prompts another look at death case


A high-level judicial spat with life-and-death consequences involving a
condemned Texas man is back before the U.S. Supreme Court for an unusual
2nd time in 3 years.

Justices agreed to look again at LaRoyce Lathair Smith's argument that the
jury in his sentencing phase was given deficient instructions after
Texas's top criminal appeals court ignored their concerns about the jury's
decision more than a decade ago.

Smith is 1 of 3 condemned Texas men whose cases are being argued before
justices Wednesday. Smith argues his sentencing jury wasn't allowed to
sufficiently consider the abuse and neglect he suffered as a child.

The 2 others, Brent Ray Brewer and Jalil Abdul-Kabir, are raising similar
claims after the 5th U.S. Circuit Court of Appeals turned down their
appeals. The Supreme Court has combined their two cases into a single
argument, also to be heard on Wednesday.

The state appeals court upheld Smith's conviction despite the high court's
concerns.

"My argument is the Court of Criminal Appeals didn't comply to the holding
of the Supreme Court decision," said Jordan Steiker, Smith's lawyer.

"It's not unheard of, but not common either," Erwin Chemerinsky, a Duke
University law professor who urged the justices to take Smith's case a 2nd
time. "Usually when it happens, the Supreme Court does not take well to
what they regard as disobedience by a lower court."

Texas has executed 380 prisoners over the past 24 years, making it by far
the nation's most active death penalty state.

A favorable decision from the high court could mean new sentencing trials
for the three and possibly affect a few dozen other inmates sent to Texas'
death row in the late 1980s and early 1990s who might have been sentenced
under similar jury instructions.

Smith, Abdul-Kabir and Brewer are not contesting their guilt.

Smith was convicted of the 1991 fatal shooting and stabbing of Jennifer
Soto, a 19-year-old Dallas fast-food restaurant night manager who was
tortured in a robbery that netted no money. His lawyers argued the
sentencing instructions didn't allow jurors to consider that Smith, 19 at
the time of the crime, was a special education student who had made only
the 8th grade by the time he was 18, and whose father was in a biker gang
and abused alcohol and crack cocaine and stole from the family.

At his trial, jurors were instructed to determine if Smith's conduct was
deliberate and if he would probably remain violent. A "yes" to both
questions meant a death sentence. A "no" to either or both meant a life
prison term.

Jurors also were told to change one of their two "yes" answers to "no" if
they believed mitigating evidence could lead them to conclude Smith's life
should be spared. A jury in Dallas County deliberated 16 hours over 3 days
before returning with the decision Smith should die.

Texas legislators in 1991 added a third question to jury instructions,
specifically asking jurors if mitigating evidence they heard convinced
them a life sentence would be more appropriate. The change in the law,
however, came too late for Smith, who already had gone to trial.

In 2004, the Supreme Court ruled 7-2 the instructions in Smith's trial
were inadequate because they didn't allow jurors sufficient latitude to
consider Smith's mitigating circumstances. Justices returned his case to
the Texas Court of Criminal Appeals.

But March 1, the state high court, while acknowledging Smith's hard
childhood showed he "may have suffered 'some' actual harm," denied Smith's
appeal, saying the jury instructions were not "so egregiously injurious"
as to make Smith's trial unfair.

"The United States Supreme Court said this is constitutionally inadequate
and the Court of Criminal Appeals and Texas say that's wrong," Victoria
Palacios, a Southern Methodist University law professor who teaches
capital punishment matters, said. "But you can't disagree with the Supreme
Court when the Supreme Court is interpreting the federal Constitution."

Steiker, a University of Texas law professor, appealed again to the high
court

"The Texas Court of Criminal Appeals invented a ground to try to thwart
the Supreme Court's ruling," said Chemerinsky, whose brief urging the
Supreme Court review Smith's case a second time was filed on behalf of
four retired federal judges.

The Texas Attorney General's Office, in briefs prefacing this week's
arguments, insisted the state court ruling was correct and that Smith's
lawyers never objected to the jury instructions at his trial and during
earlier appeals. State lawyers also said while the 2-question procedure
may have been unconstitutional under subsequent Supreme Court rulings,
jurors still were presented ample mitigating evidence that made the
instruction error harmless.

Presiding Texas Court of Criminal Appeals Judge Sharon Keller, a
Republican, declined to discuss the case while it was pending before the
Supreme Court.

Immediately following the Smith arguments, justices were to hear the 2
combined Texas death penalty cases that raise similar claims but focus on
the 5th U.S. Circuit Court of Appeals.

Abdul-Kabir, also known as Ted Calvin Cole, was convicted in 1988 of
strangling a San Angelo man, Raymond Richardson, 66, with a dog leash
during a $20 robbery at his home. Abdul-Kabir's lawyers contend the jury
that condemned him had no way, under the 2-question procedure, to take
into account the neglect, mistreatment and abandonment that left him with
emotional and psychological scars and contributed to his violent adult
behavior.

The 5th Circuit, which handles Texas death penalty appeals and has upheld
the death sentences of Abdul-Kabir and Brewer, "refused to yield to the
letter or the spirit" of the Supreme Court's previous decisions related to
the sentencing rules, his lawyers said when they asked for the high court
review. Instead, the New Orleans-based appeals court "continues to veer
from the course" and is "busily crafting new 'screening tests' to evade"
the Supreme Court's guidance, Abdul-Kabir's attorneys said.

The same sentencing problems applied to Brewer, convicted of fatally
stabbing a 66-year-old Amarillo man, Robert Laminack, who in 1990 was
attacked outside his flooring business and robbed of his wallet containing
$140. Brewer was abused as a child and suffered from mental illness,
factors his jurors weren't allowed to consider, according to his petition.

---

Eds: The cases are LaRoyce Lathair Smith v. Texas, No. 05-11304; Brent Ray
Brewer v. Nathaniel Quarterman, No. 05-11287; Jalil abdul-Kabir, formerly
known as Ted Calvin Cole v. Nathaniel Quarterman, No. 05-11284.

(source: Associated Press)