[Deathpenalty] death penalty news-----TEXAS

Rick Halperin rhalperi at mail.smu.edu
Fri Jul 13 19:09:33 CDT 2007

July 13


Anthony Graves' defense suffers setback----Judge will let prosecutors use
1994 testimony of a witness who later recanted

The recorded testimony of a witness who recanted moments before his
execution will be admitted in the capital murder retrial of Anthony
Graves, a Burleson County district judge ruled Thursday.

The ruling by state District Judge Reva Towslee-Corbett is a setback for
Graves, whose conviction was overturned last year after a federal appeals
court found that the prosecution withheld statements from the defense and
elicited false testimony during his 1994 trial.

Graves was convicted almost entirely on the testimony of Robert Carter,
who told a jury that on Aug. 18, 1992, he and Graves used a hammer, pistol
and knife to kill Bobbie Joyce Davis, 45; her 16-year-old daughter,
Nicole; and 4 grandchildren between 4 and 9.

Davis' Somerville home was torched to cover the crime.

The 5th U.S. Circuit Court of Appeals found that Carter told prosecutors
the night before he testified that he acted alone, without Graves.
Prosecutors failed to notify the defense of Carter's statement and
threatened to prosecute his wife as a participant in the slayings, the
court said.

Carter recanted his testimony in a deposition and in his last statement
before he was executed in 2000. "Anthony Graves had nothing to do with
it," Carter said. "I lied on him in court."

The defense asked Towslee-Corbett to prohibit the prosecution from using a
transcript of Carter's 1994 testimony, but she denied the request without

"I can't tell you how disappointed I've been," said David Mullin, 1 of 3
defense attorneys representing Graves.

"It's as if she said everything the 5th Circuit said is not right," Mullin

Special prosecutor Patrick Batchelor did not respond to a request for

The order allowing Carter's testimony is the latest in a string of
decisions by Towslee-Corbett that have favored the prosecution, including
a gag order imposed over the objections of the defense that was overturned
by a state appeals court.

Graves remains in the Burleson County Jail awaiting a trial date.
Attorneys are waiting for Towslee-Corbett to rule on a change of venue

(source: Houston Chronicle)


Passing the inmate----Harris County has chosen an expensive, undesirable
method of relieving jail overcrowding.

At a cost of $4 million, Harris County officials are planning to send up
to 400 jail inmates to a privately run prison in northeast Louisiana
beyond the purview of Texas regulators. The strategy will temporarily
alleviate the downtown facility's chronic overcrowding, but is likely to
create more problems than it solves.

As reported by the Chronicle's Steve McVicker, after finally meeting
state-mandated population levels in May, Sheriff's Department officials
notified the Texas Commission on Jail Standards that they planned to
transfer prisoners out of the facility to remain in compliance. Earlier
this week the commission's executive director, Adan Munoz, approved the
county plan, even though his agency will have no authority to inspect
conditions at the private prison in Epps, La.

It's unclear what degree of oversight Louisiana penal officials exercise
over the West Carroll Detention Center. Harris County officials say
allegations of abuse in the private facility "will be closely monitored,"
but the Chronicle has reported that inmate families' complaints about the
county jail here are frequently disregarded.

A number of factors put Harris County jail managers in the position of
having to ship prisoners out of state to lower the inmate population. Some
district judges continue to sentence convicted felons to serve their time
in the county system, which as of Wednesday held nearly 10,000 prisoners,
almost 1,000 over capacity. More than 1,200 of them could be serving their
sentences in state prison.

State Sen. John Whitmire, D-Houston, chairman of the Senate Criminal
Justice Committee, has criticized the frequency with which jurists are
sending convicts back to jail for minor parole violations. Gov. Rick Perry
vetoed a bill passed by the Texas Legislature to allow such prisoners to
make bail. Had it become law, about 500 jail inmates could have been
released, making the planned transfer to Louisiana unnecessary and saving
the county millions of dollars.

Sending Texas prisoners out of state also makes family visits more
difficult and places at risk the inmates' eventual reintegration into
society. A round trip from Houston to Epps can take up to 14 hours.

Warehousing Texas inmates in other states is not the way to ease jail
overcrowding. Convicted felons should serve their time in state prisons,
and minor parole violators should be released. Making better use of
pretrial release programs for nonviolent offenders and new county
facilities would provide a permanent solution.

(source: Editorial, Houston Chronicle)


Shoe prints led to arrest of suspect in slaying

Bloody shoe prints and a security videotape were clues that led detectives
to the arrest of a man in what police described as a deadly robbery in a
Central El Paso apartment, court documents showed. Ray Curtis McElrath,
38, was arrested Thursday on a capital-murder charge in connection with
the death of 49-year-old Alfus Ray Dennis, who was found dead Wednesday
morning in his apartment in the 3600 block of Lincoln Avenue, police said.

A homicide can be classified as a capital murder case if someone is slain
in the course of another crime. Capital murder is punishable by the death
penalty or life in prison.

Detectives believe Dennis "was killed during a robbery," police spokesman
Officer Chris Mears said. He added that the men knew each other and that
more arrests were expected in the case.

Dennis was found by a relative in his apartment. He had been shot with a
shotgun and had bled to death. His money was missing, said a complaint
affidavit filed by a detective.

McElrath "had first-hand knowledge the victim Alfus Ray Dennis possessing
approx. $9,000 in cash," the document obtained by the El Paso Times

McElrath lives in an apartment in the 3800 block of Pierce Avenue. It is
in the same neighborhood of 1-story apartments south of Beaumont Army
Medical Center in which Dennis lived.

Security video showed both men together at a convenience store near
Dennis' apartment around 11:05 p.m. Tuesday, the affidavit stated. A
witness identified McElrath in the video.

The affidavit said several bloody shoe prints were found at the scene. The
prints allegedly matched the sole pattern of sneakers McElrath was wearing
when he was detained by police. McElrath's "shoes are stained with a
substance believed to be the victim's blood," the document stated.

Court records show that Dennis was indicted Tuesday on a charge of
possession of a controlled substance less than 200 grams. He was out on a
$7,000 bond posted last month.

Court records also showed that McElrath was out on a $5,000 bond for
allegedly violating a protective order in April.

McElrath's photo was not released by police because the investigation was
continuing, department spokesman Javier Sambrano said. Mug shots are
typically not released if investigators are still doing photo lineups.

(source: El Paso Times)


Kenneth Foster and the Texas Death House

Kenneth Foster's time is running out.

After 10 years on death row, the state of Texas is gearing up to kill him
on August 30 for a murder he didnt commit. Foster was convicted for the
1996 murder of Michael LaHood Jr., who was shot following a string of
robberies, by a man named Mauriceo Brown. Brown admitted to the shooting
and was executed by lethal injection last year. Now Foster faces the same
fate. So, if Brown was the shooter, what did the 19-year-old Foster do to
get a death sentence? He sat in his car, 80 feet away, unaware that a
murder was taking place.

Foster was convicted under Texass "law of parties," a twist on a felony
murder statute that enables a jury to convict a defendant who was not the
primary actor in a crime. This can mean sentencing someone to death even
if he or she had no proven role in a murder. Texas's law states that "if,
in the attempt to carry out a conspiracy to commit one felony, another
felony is committed by one of the conspirators, all conspirators are
guilty of the felony actually committed, though having no intent to commit
it. Defendants, the Texas courts say, can be held responsible for "failing
to anticipate" that the "conspiracy"in Foster's case, the robberies, for
which he was the getaway driverwould lead to a murder. Foster's sentence,
death row prisoner Mumia Abu-Jamal recently commented, "criminalizes
presence, not actions."

In theory, the law of parties is "a well-recognized legal document," says
Houston defense attorney Clifford Gunter, and most states with the death
penalty on the books include a similar provision for "non-triggermen."
Nevertheless, critics of the Texas law say its an aberrationa slippery
legal statute that stands in direct violation of the 1982 Supreme Court
decision in Enmund v. Florida. Still the "prevailing view," according to
Gunter, Enmund held that the death penalty was unconstitutional for a
defendant "who aids and abets a felony in the course of which a murder is
committed by others but who does not himself kill, attempt to kill, or
intend that a killing take place or that lethal force will be employed."
In Texas today, the law or parties says exactly the opposite.

Even more troubling is the law in practice. When Justice Byron White wrote
the Enmund decision in 1982, he observed that the Court was not aware of a
single execution of someone who did not kill or intend to kill. What a
difference another quarter-century makes. Months after Enmund was decided,
Texas executed its first prisoner since the reinstatement of the death
penalty in 1976. In the tidal wave of capital cases that followed,
numerous defendants would be sentenced to die under the law of parties.

One was Norman Green. Green was charged for a murder during a botched
robbery in an electronics store in 1985. He got death. His accomplice, the
man who actually pulled the trigger, got life. The arbitrary result
exemplifies what Green's appellate lawyer, Verna Langhamwho also handled
Kenneth Foster's 1st appealsees as the danger of the law of parties. "[It]
is subject to such loose interpretation," she told the Austin Chronicle in
2005. "A kid in the wrong place at the wrong time with the wrong people
can end up being sentenced to death." Green was executed in 1999.

No formal study has been done on the number of defendants subjected to the
law of parties in Texas. Anti-death penalty activists estimate that Texas
death row has 80 to 100. This number seems high to David Dow, founder and
director of the Texas Innocence Network and author of Executed on a
Technicality (2005). But he says that it could be an accurate measure of
the number of prisoners whose juries were given the choice of applying the
law of parties, even if their conviction did not hinge on it. "In a lot of
cases, you have a [law of parties] instruction, but jurors have to find
one or the other: Either the person was responsible for killing the victim
or they are responsible for participating in a crime where it should have
been anticipated that a murder would take place." For a defendant facing
lethal injection, it's a distinction without a difference. Regardless of
the number of times the law of parties has been used, its clear effect has
been to broaden the pool of defendants eligible for death. By inviting a
jury to speculate whether a defendant "should have known" a murder could
happen, it drastically lowers the burden of proof for a punishment
supposedly reserved for the worst of the worst."

>From the zeal of prosecutors to the legal machinery that supports them,
the structure of the Texass legal system makes it easier to sentence
people to death, says Dow. Between the Polunsky Unit in Livingston and the
women's death row in Gatesville, nearly 400 prisoners are awaiting
execution. By the end of the summer, Texas will have killed its 400th
prisoner since the death penalty was brought back. The state that famously
carried out 152 executions under Governor George W. Bush has seen Gov.
Rick Perry surpass his record. Since taking office in December 2000, Perry
has signed off on over 158 executionsa number that will be dated when this
piece goes to press (and which would be higher still were it not for the
Supreme Courts 2005 decision in Roper v. Simmons, which forced Perry to
commute the death sentences of 28 prisoners who were younger than 18 at
the time of their crime). In this context, its hard not to see the law of
parties as an irresistible tool in a legal system designed to summarily
execute people. Especially if the defendant is black and the victim is

Kenneth Fosters case is a good example. He's not just a black man accused
of killing a white man; he was convicted for killing the son of an
attorney highly esteemed by the legal community. As with so many other
cases involving families of influence, the media was all over it, and the
LaHood family's wish for an execution quickly became public knowledge.
(LaHood's mother reaffirmed her support of Mauriceo Browns execution last
year.) In other particularly high-profile cases, the law of parties has
come in similarly handy for the prosecution. In the trial of Patrick
Murphy Jr.one of the notorious "Texas 7," who in 2000 escaped from prison,
killed a police officer on Christmas Eve, and were summarily sentenced to
dieprosecutors seeking death sentences across the board used the law of
parties to circumvent the fact that Murphy was not at the scene of the
crime. Prospective jurors were asked not just how they felt about capital
punishment, but also about the law of parties specifically. (It worked.
Murphy is now sitting on death row.)

The many excesses of Texas capital law offer a portrait of a brutal and
broken systemone that has long been protested by anti-death penalty
activists. More recently, prisoners themselves have begun to organize from
the inside. Kenneth Foster is among them. In 2005 he helped found
D.R.I.V.E, a group of death row prisoners who protest the death penalty as
well the abusive conditions of their incarceration. D.R.I.V.E, which
stands for "Death Row Inner-Communalist Vanguard Engagement," is
multi-racial, highly political, and, perhaps most important, thrivingon
one of the most repressive death rows in the country. Members encourage
fellow prisoners to protest on execution days, and to protest their own
executions (refusing to walk to the van that takes them to the executions
chamber; refusing last meals). They also protest inhumane prison
conditions. Last fall, a dozen death row prisoners at Polunsky went on a
hunger strike to protest the inedible food and constantly overflowing
toilets in their cells, among other abuses. Comparing themselves to the
hunger strikers at Guantanamo Bay, they eventually caught the attention of
the New York Times.

Some members of the group also invoke the legacy of Gary Grahama.k.a.
Shaka Sankofathe Texas death row prisoner who was executed in 2000,
despite overwhelming evidence that he could be innocent. Graham, who was
put to death amidst widespread protests, maintained his innocence until
the end, declaring in his last statement, "They are murdering me tonight."
This era, which Dow considers the "heyday" of protest around executions,
coincided with increased repression on Texas death row. Following an
attempted prison break in the late 90s, the death row population was
relocated. At their new home in the Polunsky Unit, prisoners are housed
for 23 hours a day in cells that are 60 square feet (the American
Correctional Association recommends a minimum of 80 feet). Work and
recreation privileges are pretty much non-existent, and the few prisoners
entitled to small luxuries can easily have them taken away. Such is the
case of Stephen Moody, whose participation in last falls hunger strike led
to the confiscation of his radio. Texas death row prisoners are allowed no
contact visits, and only a few phone calls a year.

Despite this, Kenneth Foster and D.R.I.V.E. have allies on the outside. In
addition to his supporters and family in Texas, a New York-based political
hip-hop group called the Welfare Poets is speaking out on behalf of Foster
and other prisoners on Texas death row; grassroots groups like the
Campaign to End the Death Penalty are working to protest Fosters
execution, from Harlem to Austin. With Foster's legal recourses almost
dried up, a letter campaign to members of the appeal board is underway.
But it's a long shot. "Perry has never granted clemency in a capital case
before, even when the Board recommended it," says Bryan McCann, a CEDP
activist in Austin. In a state that will have executed 400 people by
September, clemency has only been granted 2 times. "If Kenneth Foster has
a good innocence claim, that would be great for him," Dow says, noting
that innocence is what gets attention these days. But while Foster's
supporters argue that Foster is innocentthat nobody should be executed
"for driving a car," in the slaughterhouse state of Texas, innocence can
be harder to prove than guilt.

(source: The Brooklyn Rail; Liliana Segura is a writer based in Brooklyn)


Don't always believe your eyes

In 1979, Gary Dotson was convicted of rape and aggravated kidnapping,
partially on the basis of the victim's eyewitness testimony. 10 years
later, he became the 1st person exonerated on the basis of DNA evidence.

Since then, 205 people have had convictions overturned because the DNA
from the crimes they were accused of did not match their own, according to
the Innocence Project, a nonprofit dedicated to freeing innocent people.
Eyewitnesses incorrectly identified 77 % of the people exonerated.

Numerous studies have found eyewitnesses to be unreliable, yet eyewitness
testimonies continue to put people in jail and condemn them to death.

In U.S. v. Scheffer (1998), the Supreme Court decided that polygraphs are
too scientifically controversial to be admissible in court. Expert
testimony is often not allowed in court for the opposite reason; it is
believed to have a "prejudicial effect," in that the expert testimony
unfairly biases a jury against an eyewitness.

Eyewitness testimonies are flawed, yet allowed in trials. There are many
problems with eyewitness accounts and identifications. The ability of an
eyewitness to make a correct identification is hampered by stress.
Cross-racial identifications are error-prone. If a weapon is involved,
people tend to focus their attention on the weapon, seldom looking at the
face of the attacker. Memories of an event can decay immediately. Gaps in
a witness's recollection of an event are often unconsciously replaced by
their own preconceptions or suggestions by authorities concerning what
probably happened. As a result, there is no correlation between the
confidence of an eyewitness and the accuracy of identification.

While all eyewitness testimonies have the same problems, each case treats
eyewitness testimony differently. In some cases, the jury hears the
testimony of an expert on the pitfalls of eyewitness identification. In
others, no such testimony is given.

In the 1999 murder case Jon Weatherred v. Texas, the Ninth Court of
Appeals allowed the testimony of a psychologist on the reliability of
eyewitness identification. The Texas Court of Criminal Appeals then
overturned this ruling. The decision to allow or disallow expert testimony
on the validity of eyewitnesses on a case-by-case basis neglects the
scientific consensus that eyewitness testimony is affected by many
variables and is often flawed.

The absolute exclusion of eyewitnesses would be ludicrous. Eyewitnesses
are often effective at identifying criminals when the witness knows the
criminal. However, just as the Federal Rules of Evidence outline when
expert testimony should be used in court, there should be rules that
ensure the jury is aware of the weaknesses of eyewitness testimony.

In addition, the police should perform lineups using a standardized
methodology. The Department of Justice has studied these methods and
issued guidelines for the best ways to get credible eyewitness testimony.
New Jersey is the only U.S. state that has implemented these guidelines
completely, according to the Innocence Project.

According to the project, mistaken eyewitness testimony is the leading
cause of wrongful convictions, followed by junk science and laboratory
error. False confessions and lying snitches also contribute.

The problems with eyewitness testimony are known, and guidelines to ensure
unbiased eyewitness testimony are available. Incorrect eyewitness
identification has condemned innocent people to life in prison and even
the death penalty. Judges should make sure that juries understand the
nature of eyewitness testimony, with all its caveats and pitfalls.

(source: Daily Texan ---- Dylan Miracle is a physics graduate student)

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