BEFORE THE GOVERNOR FOR THE STATE OF TEXAS
AND
THE BOARD OF PARDONS AND PAROLES
In re
LESLEY LEE GOSCH,
Applicant.
APPLICATION FOR REPRIEVE
FROM EXECUTION OF DEATH SENTENCE AND
COMMUTATION OF SENTENCE TO IMPRISONMENT FOR LIFE
Submitted by: Raoul D. Schonemann
Texas Bar No. 00786233
Maurie Levin
Texas Bar No. 00789452
P.O. Box 280
Austin, TX 78767
(512) 320-8300
(512) 477-2153 (fax)
Counsel for Lesley Lee Gosch
APPLICATION FOR CLEMENCY
AND MEMORANDUM IN SUPPORT THEREOF
Lesley Lee Gosch respectfully submits this application for clemency, requesting that this
Board of Pardons and Paroles recommend, and that the Governor grant, a commutation of his
sentence of death to life imprisonment: To facilitate this request, Mr. Gosch is seeking a 30-day
reprieve so that the Board may fully consider the merits of this Application.
INTRODUCTION
In 1997, the State of Texas executed 37 individuals -- a record in the “modern era”
of the death penalty. Almost all of those men requested that the Board grant executive
clemency. In not even one case, however, did the Board meet to discuss merits of the
application or conduct a clemency hearing, as is common in many jurisdictions that carry
out the ultimate penalty.
The Board has a statutory and moral responsibility to fully consider the life of the
person whose petition rests before it. Mr. Gosch respectfully requests that the Board fully
assume its responsibility, and fully evaluate the request presented.
With the recent changes in the habeas corpus laws, the Board and the Governor’s
Office must accept a heightened role in the administration of the death penalty. No longer
do clemency petitions represent a “last ditch” effort to push aside the conclusions of endless
courts that have heard, considered, and dismissed innumerable claims on the merits.
Comparatively speaking, Mr. Gosch’s case has hurtled towards next week’s execution.
Today, the Govenior and the Board are the only forum able to fully consider the
ramifications of Mr. Gosch’s unique situation. In order to give the matter the consideration
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t
required, Mr. Gosch respectfully requests that the Governor grant a 30-day reprieve to allow
the Board to conduct a hearing to consider the matters raised herein.
STATEMENT OF THE CASE
A. The Events Leading To The Murder of Rebecca Patton
On September 18, 1985, Frank Patton, president of Castle Hills National Bank in
San Antonio, Texas, received a telephone call at the bank from his wife, Rebecca Patton.!
When he answered the phone his wife said, "Hi, Frank, there is someone here who wants
to talk to you," and then a male voice, unfamiliar to Mr. Patton, took over the line. The
unknown male instructed Mr. Patton to gather cash together in a briefcase, and to go
directly to the pay telephones at the food court at the North Star Mall in San Antonio.
The caller told Mr. Patton that he had precisely 45 minutes to comply with these
directions.
After hanging up the phone, Mr. Patton immediately directed a bank cashier to
begin gathering the money together, while his secretary called the F.B.I. Seven minutes
after the initial extortion call, officers from the Alamo Heights Police Department arrived
at the Patton home to find the body of Rebecca Patton lying on the floor of the home. She
| had been shot fatally in the head.
" All factual assertions made in this petition are supported by the trial testimony and exhibits, affidavits, police
i as Teports, and other documentation in the possession of counsel for Mr. Gosch. Counsel does not intend to submit all of the
~ available documentation as exhibits in support of this petition as this would be overly burdensome to the Board and the
Governor. Documentary support for any factual assertion made in this petition is available upon request.
2
B. The Events Leading to the Arrests of John Rogers and Lesley Gosch
On September 23, 1985, a group of San Antonio-area bankers held a press
conference to announce that they were offering a $100,000 reward for information
leading to the arrest, indictment, and conviction of the person or persons responsible for
the murder of Mrs. Patton. Less than two days later, in the early morning hours of
September 25, 1985, Stephen Hurst, a 21-year-old friend and roommate of John Laurence
Rogers,” was brought to the Alamo Heights Police Department by his uncle, Ned Dreyer,
claiming that he had inivrmation that would lead to the arrest of the individuals
responsible for the crime.
At the police station, Hurst produced the briefcase which he claimed had been
given to him for safekeeping by his friend and housemate John Rogers. Inside police
found a Ruger .22 caliber automatic handgun, several full boxes and one partially full box
of Eley Long Rifle Caliber pistol ammunition, and two silencers which fit the weapon.
Subsequent firearms comparison by the Bexar County Firearms Examiner concluded that
this handgun was in fact the murder weapon
That morning, Hurst gave a written statement to the Alamo Heights police
implicating Rogers and Gosch in the failed extortion plot and subsequent murder of Mrs.
Patton. All the information contained in the statement derived from information Hurst
had been given by John Rogers. The statement also suggested that both Rogers and
* At the time of these events, Hurst and Rogers shared an apartment at 4411
Gardendale, #12C, in San Antonio.
Hurst had greater roles in the planning and execution of the crime than either one would .
later admit. Indeed, on the day of Mrs. Patton’s murder, Hurst took the day off from
work without explanation, an unusual event by his own admission. Hurst’s statement, as
well as the subsequent statement of John Howells, an associate of Hurst’s and Rogers’,
also revealed that from Wednesday, September 18th, until Tuesday, September 24th,
Stephen Hurst and John Howells alternately kept weapons given to them by John Rogers
in their possession with knowledge of their connection to the murder of Mrs. Patton yet
did not notify the authorities of their existence.
John Howell’s statement to police on September 27, 1985, related information that
was derived either from Rogers or from Rogers through Hurst. It also revealed that John
Rogers had possession of, and demonstrated his technique with the murder weapon before
the offense as well as after.
As a result of the information provided by Hurst, the morning of September 25,
1985, officers surrounded Rogers’ apartment building. They observed Rogers exiting his
apartment, getting into his car, and driving away, and stopped and arrested him a short
distance away. They ordered Gosch out of the apartment and also placed him under
arrest. The officers seized numerous items from inside Rogers' apartment, including a
pair of blue jeans that had been left lying amidst other clothing in the middle of the
bedroom floor. A subsequent search of John Rogers' car -- an old, converted yellow taxi
cab -- revealed a jacket belonging to Rogers, two black gloves, one of which was found
inside the left pocket of the jacket, maps of Central America, and a birth certificate in the
4
name of "Christin Malford Cotham III."
C. The Prosecutions of John Rogers and Lesley Gosch
On August 13, 1986, John Rogers entered into a plea agreement with
representatives from the Bexar County District Attorney's Office and the United States
Attorney's Office. Under the terms of that agreement, Rogers agreed to testify against
Gosch in exchange for recommendations of a 45-year sentence on the state charges, and a
20-year sentence on the federal charge, to run concurrently. On August 14, 1986, John
Rogers gave a written statement to Ken Thuleen, wherein he alleged that Gosch was the
one who entered the Patton home and shot Mrs. Patton. He also stated that, according to
their “plan,” Mr. Gosch was the one who was to kidnap Mrs. Patton, bind her with duct
tape, and drive her in her own car to an unspecified location.
On August 26, 1986, the guilt-innocence phase of Mr. Gosch's trial began in
Victoria, Texas. The State's evidence was largely circumstantial. The only direct
evidence that tended to prove that Lesley Gosch was the person who shot Mrs. Patton was
that of John Rogers, who had an obvious motive to tranfer responsibility to Mr. Gosch in
order to deflect suspicion from himself. The only information that Hurst and Howells
were able to relate stent the offense itself came from things Rogers had told them: that
the plan to kidnap Mrs. Patton had gone awry and that “Skipper” had shot her to death.
All of the other circumstantial evidence presented against Gosch tended to
" establish, at most, that he was involved with John Rogers in the commission of the
5
offense, but failed to prove which of the two co-defendants was the “triggerman”:
(1) | Gosch knew Frank Patton’s identity and occupation;
(2) Gosch was seen in the vicinity of the offense on the day of the crime
in Rogers’ company;
(3) | Gosch owned the murder weapon;
(4) Gosch was arrested at a location where police found clothes
containing smears of the same blood type as that of the deceased;
(5) | Gosch had a motive for quickly obtaining a large amount of money;
and
(6) Gosch asked a friend for help in fleeing the country two days after
the offense.?
The defense presented no witnesses at the guilt phase of trial.
On September 2, 1986, the jury returned a verdict of guilty.
The punishment phase of the trial began the next day, on September 3, 1985. The
prosecution presented evidence that in 1973, Mr. Gosch had been convicted of two prior
> These are the facts cited by the Court of Criminal Appeals as evidence
corroborating John Rogers’ trial testimony in its opinion affirming Mr. Gosch’s conviction
and death sentence. Notably, however, all of this evidence was circumstantial, and
susceptible to interpretation that was at least as incriminating of Mr. Rogers as Mr. Gosch.
For example, convenience store clerk Sherry Covarrubias identified both Gosch and Rogers
as men who came into the "Stop and Go" in Alamo Heights; thus, her testimony did nothing
to establish who went into the house at 321 Castano. Similarly, while the .22 Ruger turned
in by Hurst was eventually traced back to Mr. Gosch, it is uncontroverted that it was in
John Rogers' possession both immediately before and after the murder. See infra.
Likewise, all of the evidence recovered from Rogers! apartment and car were under Rogers'
-- or Hurst's -- control, not Gosch's. Finally, while there was evidence of a motive for Mr.
Gosch to participate in the offense, there was also evidence that Mr. Rogers had his own
motive.
robberies, and that he received probated sentences in each. In 1985, Mr. Gosch had plead
guilty to the manufacture and sale of a silencer, and was sentenced on October 25, 1995.
Evidence of a small number of unadjudicated offenses were introduced.
The defense presented only two witnesses on Mr. Gosch's behalf: his adoptive
father, Wesley Gosch, and a former co-worker, Preston Knodell, who had known Lesley
for four years.
The jury returned affirmative answers to the Special Issue questions that same day
and the court sentenced Mr. Gosch to die.
After the trial, Stephen Hurst was paid the one hundred thousand dollar reward
offered by the banks.
APPELLATE HISTORY
Lesley Lee Gosch was indicted in the 226th District Court of Bexar County, but
prosecuted for capital murder in the 24th District Court of Victoria County, Texas on a
change of venue. On September 2, 1986, Applicant was convicted of capital murder.
Two days later, on September 4, 1986, the jury returned affirmative answers to the two
special issues presented, and Applicant was sentenced to death.‘
On December 18, 1991, Applicant's conviction and death sentence were affirmed
* Pursuant to the requirements of §143.42 of the Texas Administrative Code,
attached as Appendix 1 are certified copies of the jury verdict, the judgment and sentence,
and the Order setting the current execution date. Certified copies, however, could not be
obtained in time for the timely filing of this Application.
7
by the Texas Court of Criminal Appeals. Gosch v. State, 829 S.W.2d 775 (Tex. Crim.
App. 1991). A petition for writ of certiorari was timely filed, and was subsequently
denied by the United States Supreme Court on June 28, 1993.
On July 16, 1993, the 226th District Court of Bexar County set an execution date
for September 16, 1993. Mr. Gosch was unrepresented by counsel. Despite the efforts of
the now-defunct Texas Resource Center to obtain counsel for Gosch and efforts to
convince the court that he was entitled to a stay of execution since he was unrepresented,
the state courts refused + enter a stay. Preparing papers on Mr. Gosch’s behalf only for
the purposes of obtaining a stay of execution, the Texas Resource Center filed
perfunctory habeas petitions in the United States District Court for the Western District of
Texas, the 226th District Court of Bexar County, and the Court of Criminal Appeals.
Despite the fact that the Attorney General was agreeing to the entry of an order staying
Applicant's execution upon the filing of this petition, all requests for same were denied.
Finally, with Applicant's execution only hours away, the Resource Center then
filed a second habeas petition in the United States District Court for the Western District
of Texas, stating again that because Applicant had previously been unrepresented, he had
not had the opportunity to determine if there were constitutional defects underlying his
conviction and death sentence. The federal district court granted a stay of execution with
respect to this petition approximately thirty minutes before Mr. Gosch was scheduled to
be executed.’
Shortly thereafter, the State successfully sought another execution date for Mr.
Gosch, for April 15, 1994. On April 7, 1994, less than one day after the Fifth Circuit's
order, undersigned counsel and Edward Shaughnessy of the Bexar County Criminal
District Attorney's Office agreed to a proposed scheduling order, although Mr.
Shaughnessy would not agree to a stay until an Application had been filed. On April 12,
1994, Applicant timely filed an application for a postconviction writ of habeas corpus. In
exchange, Mr. Gosch’s execution date scheduled for three days hence was stayed.
After seeking and being granted leave to do so by the state district court, Applicant
also timely filed a supplemental and amended application for a postconviction writ of
habeas corpus on October 14, 1994. On June 5-7, 1995, the 226th District Court
conducted an evidentiary hearing that centered on the allegations raised in Applicant’s
supplemental application. On May 14, 1997, the 226th District Court entered an Order -
setting forth its proposed findings of fact and conclusions of law. On September 10,
1997, the Court of Criminal Appeals entered an order denying habeas corpus relief.
After the Court of Criminal Appeals’ decision, undersigned counsel contacted Mr.
Shaughnessy and received assurances that the State would not seek to have an execution
date scheduled before Mr. Gosch had sought and concluded federal habeas corpus
* That petition was later dismissed by the United States Court of Appeals for the Fifth
Circuit on the ground that “jurisdiction for habeas corpus petitions for Applicant Gosch lies only
in the United States District Court for the Southern District of Texas.” Gosch v. Collins, Nos.
~ 93-8635, 93-8780 (Sth Cir. April 6, 1994) (unpublished order).
review.’ On September 24, 1997, undersigned counsel called Mr. Shaughnessy to
discover that, in fact, a hearing in the 226th District Court had been set for Monday,
October 6, 1997 for the purpose of setting an execution date.’
On October 2, 1997, Mr. Gosch filed a motion with the district court requesting
that the court not set an execution date so that Mr. Gosch could initiate federal
proceedings without the exigency of an outstanding execution date, noting, that it was
both unnecessary and deleterious to fair consideration of his claims in the federal courts.
However, at the date setting hearing, the district court denied Mr. Gosch’s motion and set
an execution date for January 15, 1998.
On November 20, 1997, Mr. Gosch filed a motion for stay of execution with the
Texas Court of Criminal Appeals, which was denied on November 21, 1997. On
December 8, 1997, Mr. Gosch filed a motion for stay of execution with the United States
District Court, which was denied without prejudice on December 16, 1997. On
December 17, 1997, the federal district court entered a Scheduling Order mandating that
Petitioner file his petition for writ of habeas corpus with this Court no later than
December 30, 1997. A motion for reconsideration was filed on December 19, 1997, and
6 The recently revised federal statute governing federal habeas corpus review allows
one year from the conclusion of state habeas proceedings for the filing of a federal habeas
petition. See 28 U.S.C. §2252(d). Frequently, a considered, careful review after the
petition is filed, including all necessary pleadings by both the Petitioner and the
Respondent, requires well in excess of a year, and sometimes two or more.
: % Due to scheduling conflicts, the date setting hearing was actually held on
October 8, 1997.
10
denied that same day. In all instances Petitioner was requesting a stay not for purposes of
delay, but for the entry of a reasonable scheduling order that would allow the timely and
orderly progression of Mr. Gosch’s first federal habeas review.
In compliance with the federal court order, on December 30, 1997, Petitioner
filed a federal habeas petition raising numerous constitutional claims for relief, a
Memorandum of Law regarding the application of Drinkard v. Johnson and the Anti-
Terrorism and Effective Death Penalty Act of 1996, and a Motion for Stay of
Execution. On January 6, 1998, the Respondent filed their response, in which they
stated that they did not have a position on Mr. Gosch’s Motion for a Stay of Execution.
On January 6, Petitioner filed a Motion for Discovery and a Motion for Evidentiary
Hearing.
As of the filing of this clemency application, the federal district court has not
ruled on Mr. Gosch’s pending petition or his motion for a stay of execution. Mr. Gosch
is scheduled to be executed on January 15, 1998, exactly one week from today.
STATEMENT OF THE LEGAL ISSUES RAISED ON APPEAL
Mr. Gosch has asserted a number of constitutional challenges to the validity of his
conviction and death sentence. The major claims raised include but are not limited to the
following:
t. The state knowingly presented false testimony regarding Stephen Hurst’s
interest in and pursuit of a $100,000 reward offered for information leading
to the arrest, indictment, and conviction of the person or persons
11
responsible for the murder of Rebecca Patton.
The state withheld exculpatory impeachment evidence that Stephen Hurst
was interested in and intended to pursue a claim for a $100,000 reward
offered for information leading to the arrest, indictment, and conviction of
the person or persons responsible for the murder of Rebecca Patton.
Mr. Gosch’s trial counsel was ineffective at the guilt phase of his trial for,
in part:
a. Submitting the denim jeans to state serologist Jayne Nellis for
forensic testing, without ensuring the confidentiality of the
results, and thereby providing the state with the only physical
evidence that allegedly linked Mr. Gosch to the scene of the
crime;
db. Failing to consult with an expert serologist or F.B.I. serologist
Robert Hall, who performed forensic testing prior to Ms.
Nellis, and would have told trial counsel that at the time the
denim jeans left his hands, there was nothing left to test.
(cm Failing to conduct the investigation necessary to properly
impeach prosecution witness Stephen Hurst with the fact that
he intended to pursue the $100,000 reward;
d. Failing to object to the State’s use of nine of its fourteen
peremptory challenges to strike prospective jurors of color
from the venire.
Mr. Gosch’s trial counsel was ineffective at the punishment phase of his
trial through lack of preparation, introduction of inculpatory evidence, and
failing to investigate or present available mitigating evidence; and
The execution of a death sentence after subjecting Mr. Gosch to repeated,
unnecessary execution dates scheduled simply to hasten the process of
review constitutes cruel and unusual punishment.
VICTIM IMPACT STATEMENT
As Frank Patton, the husband of the deceased, stated at the time of his wife’s
death: “I’ve lost the most precious thing in my life.” Surely the impact on him was
12
tremendous, and nothing within the power of either Mr. Gosch or undersigned counsel
can be done to lessen that impact or take away the suffering Mr. Patton has endured.
Mr. Patton appears to be a courageous and resilient individual, who derives much
of his strength from his Christian faith. It is this faith that enabled him to not seek
revenge against those arrested for his wife’s murder. Shortly after the arrest of Gosch and
Rogers, in the midst of intense public scrutiny, Mr. Patton publicly stated that “life in
_ prison [for his wife’s killers] with no chance for parole would be adequate punishment in
my view.”*
Five years later, Mr. Patton explained in more detail the faith that enabled him to
make such statements. In “The Power to Forgive my Wife’s Murderer,” attached hereto
as part of Appendix 2, he recounted his response to reporter’s questions reflecting the
assumption that he would be seeking the death penalty:
My hope and prayer would be that these men come to know Jesus Christ and be
forgiven and have their lives changed . .. who knows? Someday, we may all be in
heaven together.
He further wrote:
During this time I suffered an awesome sense of emptiness, but I also became
aware of a spiritual consciousness that was not my own. God filled this emptiness
in my heart with His love before it could be filled with hate. That is why I could
do nothing but forgive the killer and express no hatred.
Undersigned counsel have recently attempted to contact Mr. Patton through a
neutral mediator, and he indicated that he did not wish to meet with Mr. Gosch’s
8“ Man Who Won’t Kill the Scorpion,” San Antonio Express News, September 29,
1985, attached hereto as part of Appendix 2.
13
attorneys. He is currently remarried, and still resides in San Antonio.
REASONS WHY EXECUTIVE CLEMENCY SHOULD BE GRANTED
I THERE IS SUBSTANTIAL AND COMPELLING EVIDENCE THAT
DEMONSTRATES THAT JOHN ROGERS, AND NOT LESLEY GOSCH,
FIRED THE FATAL SHOTS THAT KILLED REBECCA PATTON
A. Introduction
A grant of executive clemency is appropriate when the Board and the Governor
have substantial reason to believe that the condemned man was less culpable than a
co-defendant who has received a more lenient sentence. In recent years, Governors
and clemency boards from across the country have granted executive clemency when
faced with lingering concerns about the condemned man’s guilt, or degree of guilt,
for the offense.
For example, in 1992, Governor Douglas Wilder of Virginia commuted the
sentence of Herbert Bassette because, "[a]fter a thorough review of the evidence,
including evidence . . . which was not before the jury when they rendered their
verdict," he could not "in good conscience erase the presence of a reasonable doubt
and fail to employ the powers vested to me as Governor to intervene."
Also in 1992, Governor James Martin of North Carolina commuted the death
sentence of Anson Maynard, even though "lengthy, prayerful consideration" left him
unsure of Mr. Maynard's innocence:
14
J am not convinced that Anson Maynard pulled the trigger
to kill Stephen Henry. Nor am I convinced that Anson
Maynard is totally innocent. Since it is not clear to me that
he was the murderer, I conclude that the most appropriate
use of the power of clemency vested in my office is to
decide that the State of North Carolina will not carry out
the execution... .
It is for cases like this that the power of clemency is given to the
governor.
Finally, Governor George Allen of Virginia commuted the death sentence of
Joseph Payne -- even though he believed the evidence pointed to Payne's guilt --
because of his concerns about the reliability of some of the evidence in Payne's case.”
B. The Texas Appeals Process Does Not Provide A Forum For The Review
Of This Ground For Clemency.
In 1994, the Texas Court of Criminal Appeals declared, in State ex rel. Holmes
v. Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994), that claims of actual
innocence based on newly discovered evidence may be brought in postconviction
judicial proceedings. The standard announced in Holmes requires the criminal
defendant to prove, based on the newly discovered evidence and the entire record
before the jury that convicted him, that “no rational trier of fact could find proof of
guilt beyond a reasonable doubt.” Under the Holmes test, however, the evidence
‘. Frank Green, Clemency Came With Promises: Payne Vows No New Trial, No Royalties, Richmond Times-
Dispatch, Nov. 9, 1996 at B1.
15
from the record before the jury that convicted the defendant is viewed in the light
most favorable to the prosecution. As Judge Clinton pointed out in his dissent in
Holmes, because this test incorporates a "sufficiency of the evidence" analysis that is
highly deferential to the jury's verdict at trial, this standard is impossible by definition
for a criminal defendant with new evidence of innocence to meet:
This is an impossibly high standard of proof. By that I do
not mean that as a practical matter precious few applicants
will be able to produce new evidence sufficiently
compelling to meet the majority’s test. By that I mean that
it will be impossible by definition for any applicant to meet
the test, regardless of how compelling his newly
discovered evidence. This is so because any evidence
sufficient to support a jury’s verdict beyond a reasonable
doubt at trial will also be sufficient to support a rational
jury’s guilty verdict even after adding the most compelling
newly discovered evidence to the mix.
Putting aside the legally troubling question of whether the Holmes standard
can ever be satisfied in theory or in practice, the fact is that Holmes does not provide
a basis for judicial review of the merits of the ground for clemency that Mr. Gosch
advances here. Mr. Gosch’s claim is not that there is not or was not “legally
sufficient” evidence for a jury to convict him for some degree of involvement in the
offense; rather, Mr. Gosch asserts that there is substantial and compelling evidence
that strongly indicates that his co-defendant, John Rogers, was more culpable for the
offense because he was the one who actually killed Mrs. Patton, and therefore that
Mr. Gosch, and not Mr. Rogers (who is serving a life sentence in federal custody), is
~ deserving of a sentence of less than death. It is quite simply beyond the reach of
16
either the state or the federal judiciary to adjust the sentence imposed on one of two
co-defendants in order to correct an imbalance in the severity of the punishments
imposed relative to each co-defendant’s disproportionate culpability for the offense.
It is true that the propriety or fitness of a lawful sentence is ordinarily a matter
within the province of the jury. In this case, there are two reasons why the jury’s
sentencing verdict should not deter a proper exercise of executive clemency. First,
because the jury did not hear all of the evidence in support of Mr. Gosch’s claim that
John Rogers fired the fatal shots that killed Mrs. Patton, the jury did not have a
comprehensive evidentiary basis to reliably conclude whether Mr. Gosch or Mr.
Rogers played the more culpable role in the offense. Second, the jury in this case was
simply not allowed to take into account the fact that John Rogers would receive a
lesser sentence, regardless of what the jury believed each man’s role in the offense
actually was. As a result, the jury’s sentence of death simply does not reflect either
. what the jury actually believed to be Mr. Gosch’s role in the offense, or what the jury
believed to be an appropriate sentence given each man’s relative culpability for the
offense.
Therefore, Mr. Gosch comes before the Board of Pardons and Paroles and the
Governor to ask that the fail safe of clemency be extended to him, as the process by
which he was convicted leaves at least grave and substantial doubts that he shot Mrs.
Patton to death as the prosecution alleged at trial, and the overwhelming weight of the
evidence demonstrates that he did not do so. As the following discussion makes
17
clear, the case for executive clemency in this case deserves the greatest and most
serious consideration of the Governor and the Board.
C. There Is A Substantial And Compelling Basis To Believe That John
Rogers, And Not Lesley Gosch, Fired The Fatal Shots That Killed
Rebecca Patton
1. Unlike the able-bodied John Rogers, Lesley Gosch was
physically incapable of carrying out the planned kidnapping of
Mrs. Patton
As a preliminary matter, it must be observed that, in contrast to Lesley Gosch,
Rogers had the vinsieal capabilities necessary to carry out a plan to abduct Mrs. Patton at
gunpoint from her home. According to Rogers’ statement and testimony, his and Lesley
Gosch’s joint plan was for one of them to gain entry to the Patton home, hold Mrs. Patton
at gunpoint, bind her with electrical tape, and then drive her to a remote location in her
own car where she would be left until the ransom money was paid.
Due to injuries Mr. Gosch sustained in a teenage accident, it is impossible to
imagine that he, as opposed to Rogers, would have been chosen to carry out this role in
the offense. As a result of the accident, Mr. Gosch lost one of his eyes and his eyesight is ~
so poor in the other eye that he is legally blind. Given this disability, it defies common
sense that Gosch and Rogers would have designed a plan that called for Lesley Gosch to
drive the victim from the crime scene. Moreover, Gosch also lost the distal phalanges of
four of his fingers and the thumb on his left hand, as well as portions of the thumb and
index finger of his right hand, from the accident. These disabilities would make it
18
extremely difficult, if not impossible, for him to brandish a weapon with one hand while
binding Mrs. Patton with the other.
2. Witness statements of Virginia Marks and Esther Saavedra
identifying John Rogers, but not Lesley Gosch, in the Patton
neighborhood prior to the murder
In fact, unknown to the jury that sentenced Mr. Gosch to death, several neighbors
of the Pattons gave statements to law enforcement concerning activity they witnessed that
they thought might have been related to the crime. On Siete 30, 1985, Virginia
Hartman Marks gave a sworn statement that several days before the murder, at
approximately 2:30 p.m., she observed a “beat up taxi with a round faced man driving."””
When Ms. Marks first noticed the taxi it was parked on the wrong side of the street; she
then observed the taxi drive off "very slowly[,] as if the driver was lost," and make
repeated drives through the neighborhood. Significantly, however, Marks only observed
one man in the car, whom she positively identified from news reports as John Rogers.
Very similar to the observations of Ms. Marks, another neighbor of the Pattons
also observed John Rogers alone in the neighborhood shortly before Ms. Patton was
murdered. Esther Beatrice Saavedra, who lived across the street from the Patton's home,
stated in a sworn statement to police that at approximately 2:45 p.m. on the day of the
'° Tn an affidavit submitted by Detective Sergeant Giles Fortson in support of a
search warrant for John Rogers’ car, Detective Fortson averred that he had spoken with Ms.
Marks and “believe[d] her to be a credible source because she is permanently employed, she
owns a realty company in the city, and as far as I know her reputation for truthfulness is
~- nothing other than good.” At that time, Ms. Marks identified the driver of the vehicle she
observed as John Rogers.
19
murder, she observed a white van parked across the street in front of the Patton residence.
She then observed a heavy set white man -- "about 300 pounds, wearing wire rim glasses,
a light colored long sleeve shirt and baggy dark colored pants" -- walking "very fast"
toward the van.'' Ms. Saavedra had never seen the man before, but she recognized him in
the newspaper as the man "the police had arrested for the murder of Ms. Patton."
The observations of these reliable witnesses tend to establish that it was John
Rogers, and not Lesley Gosch, who alone went to the Patton home, gained entry, and shot
Mrs. Patton to death. Virginia Marks’ statement contradicts John Rogers’ self-serving
trial testimony, in which he claimed that he and Gosch "cased" the neighborhood on
numerous occasions together, and that he never did so alone. Ms. Marks, however,
plainly observed only Mr. Rogers in the neighborhood, and was able to report to police an
unmistakeable description of him and his vehicle.
Ms. Saavedra’s statement is even more significant, because she observed John
Rogers alone in the Patton neighborhood on the day of the crime. Her description of the
suspect perfectly matches the physical appearance of John Lawrence Rogers: He
welihs more than 300 pounds, wears wire rim glasses, and, by his own admission in
his testimony at trial, was wearing a white long sleeve shirt and dark suit pants on the
day of the crime. By contrast, Lesley Gosch was of slight build and weighed only
"| This description matches the appearance of John Lawrence Rogers at the time of
his arrest.
20
about 135 pounds, and wore black plastic frame glasses.’* Again, this provides stark
contradiction to John Rogers’ trial testimony that Lesley Gosch went alone to the Patton
residence on the day of the murder. Ms. Marks, however, did not see Lesley Gosch; she
saw, quite unmistakeably, John Rogers.
Unfortunately, in part.due to a lapse on the part of defense counsel at trial, the jury
did not have the benefit of hearing the testimony of either Virginia Marks or Esther
Saavedra at trial.
” In addition, according to John Rogers’ testimony at trial, Gosch was wearing blue
= _.. jeans and a dark t-shirt on the day that Mrs. Patton was killed. Thus, Ms. Saavedra’s
; ~-description of the suspect seen in the Patton neighborhood does not match the appearance of
Lesley Gosch in any respect.
21
3. Observations of witnesses that John Rogers’, but not Lesley
Gosch’s, was in possession of the murder weapon and other
instrumentalities of the crime both before and after the murder
Third, J ohn Rogers was closely linked to the murder weapon, the .22 Ruger, both
before and after the crime occurred, as well as to other instrumentalities of the offense.
Both Stephen Hurst and John Howells observed Rogers in possession of the
handgun before and after Patton’s murder, and on one occasion witnessed Rogers fire the
weapon into a pile of magazines. Thus, Howells stated that “about one week before the
murder,” he was visiting Hurst at the apartment he shared with John Rogers when Rogers
removed a .22 pistol with a silencer from a box and shot the weapon into some magazines
that were on the floor. The only persons present at the time were Rogers, Hurst, and
Howells. In a statement provided to police on October 7, 1985, Hurst confirmed
Howells’ account of the incident.in which Rogers fired the .22 handgun into a pile of
magazines. According to Hurst, Rogers asked him to retrieve a box from his car and
bring it inside the apartment, which Hurst did. Rogers then removed a gun with a black
silencer from the box and fired it into the magazines. According to Hurst, the box was
about three feet long and a foot wide and had the word “Flowers” stenciled on it in black
letters.
Hurst’s observation of this box in Rogers’ apartment is a critically important fact.
According to Rogers’ trial testimony, Gosch used the “flower” box to pose-as a delivery
man on the day of the murder, as a ruse to gain entry to the Patton residence. Hurst,
however, observed the flower box in Rogers’ possession prior to the murder; again, no
22
one other than John Rogers ever claimed to see Gosch in possession of this
instrumentality of the crime.
After the offense was committed, Rogers gave both witnesses instructions as to the
disposal of the weapons, directing them to put them in “deep freeze.” Before Hurst left,
Rogers instructed him to watch the local news on television that night. Hurst then took
the briefcase to Howells' apartment, where they together watched the news; they also
opened the briefcase and found several handguns, two silencers, and ammunition inside.
In the days follo»ing the murder, Hurst and Howells each had repeated contacts
with John Rogers -- but never Lesley Gosch -- concerning the weapons. On several
occasions, Rogers asked Hurst and Howells to return the briefcase to him, or to retrieve a
weapon from the briefcase and return it to him. On each east, Hurst and Howells
complied with Rogers’ requests. At no time did either Hurst or Howells have any contact
with Lesley Gosch, or even observe him in John Rogers’ presence.
4. Evidence was seized from John Rogers’ and Stephen Hurst’s
apartment, and from Rogers’ car, which was apparently related
to the murder
Finally, all items of evidence that the prosecution alleged were linked to the
offense were found in either Rogers’ apartment or his car, and none could be conclusively
linked to Mr. Gosch.
For example, law enforcement officers seized numerous items from inside Rogers'
apartment, including several more guns, ammunition, and a gun cleaning kit. In the
bedroom, a pair of blue jeans was seized that had been left lying amidst other clothing in
the middle of the floor. In addition, law enforcement seized a pair of gloves from Rogers’
car, and the prosecution later attempted to suggest at trial that Mr. Gosch wore them when
he entered the Patton's house in an effort not to leave any fingerprints. However, there
was absolutely no evidence to link the gloves -- one of which was found in Rogers' coat
pocket -- to Mr. Gosch. In fact, Mr. Gosch is an unlikely candidate for such gloves, for
the obvious reason that he is missing fingers on both hands. In contrast, Rogers tried the
gloves on while on the stand, and they fit him perfectly.
5. Considered together and in light of the weak circumstantial
evidence presented against Mr. Gosch at trial, there is a
substantial and compelling basis to conclude that John Rogers,
and not Lesley Gosch, fired the fatal shots that killed Rebecca
Patton
In conclusion, the vast weight of the evidence supports the conclusion that John
Rogers, and not Lesley Gosch, “cased” the Patton residence prior to the murders, went to
the Patton residence and gained entry to the home, and then shot Mrs. Patton to death.
Indeed, according to Rogers’ own testimony at trial, he attempted to recruit Stephen Hurst
to collect the ransom money, he called the residence several times on the day of the
murder to make sure that Mr. Patton was at work, and he made arrangements with his
friends Stephen Hurst and John Howells to hide the weapon. All of his own
acknowledged activities on the day of the murder and the days preceding it strongly
suggest that John Rogers played a much greater role in the offense that he admitted in his
testimony.
24
Particularly when compared with the weak circumstantial evidence presented
against Mr. Gosch at trial, there is every reason to believe that Mr. Gosch’s and Mr.
Rogers’ respective roles in the offense were diametrically opposite to what John Rogers
claimed. On this basis, it is Mr. Gosch and not Mr. Rogers who is deserving of a sentence
less than death. Only by granting executive clemency can the Board and Governor
redress this manifest injustice.
II. INCARCERATION HAS ENABLED MR. GOSCH TO DEVELOP
QUALITIES AND TALENTS THAT WERE INHIBITED BY THE
DISRUPTIVE CHILDHOOD THAT LED TO HIS INVOLVEMENT IN
THE EVENTS SURROUNDING MRS. PATTON’S DEATH.
Cognizant of the numerous clemency applications received each year by this
Board, it is difficult to imagine what will make each reader take notice, to note that there
is an individual before them who deserves the Board’s full attention and consideration.
Lesley Gosch is indeed unique among the death row population. However, the facts that
make him so are neither shocking nor striking, and thus require careful consideration and
attention.
Mr. Gosch has spent eleven years on death row, and has changed enormously
during that time. It is a question, however, of what he has changed back to, not what he
has become. Mr. Gosch always had the seeds of a gentle, brilliant, and caring person.
Unfortunately, these characteristics were not encouraged by those responsible for his
upbringing. Instead, abuse and isolation and forced cruelty combined with Lesley’s
25
innate personality to compel a complete withdrawal, and to render him susceptible to
other, more powerful forces - both those of his grandfather and of John Rogers. Thus, he
was drawn into an inept world of attempted crimes schemed and fashioned by Rogers,
who exacted his revenge on Mr. Gosch by setting him up for the actual murder of
Rebecca Patton in exchange for statements given by Gosch ten years earlier implicating
Rogers in an aggravated robbery.
Ironically, the time Mr. Gosch has spent on death row has rehabilitated him as a
human being. Far away from the influence of his grandfather, or Rogers, Lesley has been
able to develop in the direction to which he naturally tends: spirituality, generosity,
empathy, an enormous array of astounding artistic talents and voracious appetite for
knowledge, particularly regarding eastern philosophies, patience, equanimity, and a
quirky and humble sense of humor."
In short, the combined events of Mr. Gosch’s childhood left very few options for
the progression of his life during the time he spent in the “free” world. His incarceration
has allowed him the space and time to develop as a person who is eminently worth having
in society. It is this progression that deserves the consideration of the Governor and the
Board, and that counsel have attempted to map out below. As much as one can
encapsulate the course of a human life in ten pages or less, this is Mr. Gosch’s.
‘3 Whenever an inmate gets close enough to an execution date, he is required to do a
“pre-execution summary” with Captain West of T.D.C. In 1994, when Mr. Gosch came so
close to execution, he went through one of these sessions. As is routine, Captain West
asked Mr. Gosch what he wanted done with his body after the execution. “Resuscitated,”
Mr. Gosch replied.
26
A. How Lesley Gosch Came To Death Row On The Ellis Unit
1. Childhood
Lesley Lee Gosch, the only son born to 16-year-old Rose Mary Hale and 17-year-
old Ronald Dean "Duke" Tontz, came into the world an unwanted child. According to
family members, Rose Mary's and Duke's marriage was a "spur of the moment" affair; no
one is sure whether it preceded or followed Lesley's conception. In any event, it is certain
that neither of his biological parents were willing or prepared to assume the responsibility
of raising and caring for a child. Duke is remembered in family anecdotes and
photographs as a teenage James Dean -- handsome and intelligent, but restless and bored
with school, preferring to spend his time drinking, carousing, and racing “hot rods." Rose
Mary, on the other hand, met Duke after years of narrow and repressive upbringing in
which she had been pressed into working at her family's dry-cleaning business on
weekends and after school. Duke's carefree and somewhat reckless attitude and lifestyle
had refreshing appeal to Rose Mary, and the couple began to date.
Before the birth of their child, the young couple moved to Great Bend, Kansas,
where Lesley's future uncle, Lep Hickerson, promised to provide employment for Duke
as a truck driver. Once in Kansas, Rose Mary fell into a deep depression that worsened
after she gave birth to her son. Indeed, Rose Mary had been attracted to Duke because he
offered an escape from a stultifying routine; now the unwanted baby again forced her into
an unhappy isolation which caused her to react to the child with petulance and,
sometimes, with frightening and irrational violence. Relatives of the family report
27
numerous accounts of incidents in which Rose Mary's unhappiness spilled into physical
abuse directed toward her son Lesley. One of the more lurid of these anecdotes is
memorialized in the "Social Summary" accompanying Mr. Gosch's records with the
Texas Department of Corrections. According to those records:
On 11-4-86, a social services family interview was conducted
with the inmate's adopted father, Wesley Gosch, from San
Antonio, Texas. Mr. Gosch stated that the inmate was born
on June 8, 1955 in Great Bend, Kansas and he is an only
child. Mr. Gosch ... further revealed that the inmate's natural
mother tried to kill the inmate as an infant as she threatened to
flush hiny down the toilet.
Other family members also recall evidence of abuse and neglect. Lesley's
maternal aunt, Enid Hickerson, reports that she never saw Rose Mary show affection
toward Lesley and believes that Lesley was regularly physically abused by his mother
while his father was away. She recounts an occasion when the baby was taken to the
family doctor for treatment of his leg, and several broken ribs were also discovered.
According to Ms. Hickerson, Rose Mary became afraid after the leg-twisting incident of
what she might do to Lesley; concerned she might kill him.'* After only six
months, it was clear that Rose Mary and Duke did not even pretend to care for Lesley any
longer. A protracted court battle ensued over who was to assume responsibility for
Lesley's upbringing. The Hales wanted Rose Mary to keep Lesley, but Rose Mary and
Duke had already signed an affidavit stating they no longer wanted to care for him and
‘4 The adult Lesley Gosch, thirty-nine years later, still cannot use this leg properly.
28
were willing for Duke's mother and stepfather, the Gosches, to do so. Eva Gosch (neé
Tontz), Lesley's paternal grandmother, also vied with them for the child; she had, through
her sister Enid, been closely watching the situation in Great Bend from San Antonio and
now wanted to intercede. Eva's husband, Wesley Gosch, desired a son. The Gosches
quickly won custody of Lesley, due to Rose Mary's and Duke's willingness to surrender
him" and Rose Mary's worsening mental instability.’
Despite this early turbulent history of physical abuse and neglect, Lesley Gosch is
remembered by family members as an exceptionally gentle child. According to his aunt
Enid, he would not allow her to kill insects. "He would say, 'They hadn't hurt anyone, so
leave them alone," Ms. Hickerson recalled recently.
Ms. Hickerson also remembered an incident which is in many aspects emblematic
of the difficulties Lesley Gosch faced during his formative years and their consequences
on his adulthood. Lesley's adoptive father, Wesley Gosch, was a master gunsmith who
was determined to introduce his son to guns when he was still a child. When Wesley
gave the then five-year-old boy a rifle, Lesley ignored it and played with his other toys.
Several years later, Wesley took Lesley deer hunting. When they returned home, Lesley
'’ Neither of Lesley Gosch's parents had any involvement with the upbringing of
their son after custody had been assumed by Eva and Wesley Gosch. Indeed, Rose Mary
Hale did not even know of her son's death sentence until a chance mention of it ina
Christmas card she received in 1993. Lesley's natural father, Duke Tontz was killed in a car
crash in 1960, likely while drinking.
'© When Wesley and Eva retrieved Lesley, family members report, the infant's legs
had been scalded with hot water.
29
went directly to his room, crying. Ms. Hickerson asked him what was wrong. A deer had
come into range, Lesley told her, and he had refused to fire on it; his grandfather then
threatened to whip him if he didn't shoot the next deer that came along. When the next
deer one appeared, after more threats from Wesley, Lesley shot and killed the deer.
According to Ms. Hickerson, the young boy was upset that he had killed the animal and
said it hadn't hurt anyone and didn't deserve to die; he told her he was disgusted by his
grandfather's insistence that he kill it, but felt he had no choice.
Eva's health steadily declined over the years due to cancer; she wished that Ms.
Hickerson would raise Lesley, but Wesley Gosch was violently opposed to the idea.
Virginia Fultz, a neighbor who babysat for Lesley, remembers him as "lost in the shuffle"
throughout all this internecine feuding. And yet Lesley achieved significantly in a variety
of areas and somehow maintained a tenuous stability with his grandfather.
It becomes clear in retrospect, however, why Eva Gosch wanted her sister's family
to raise Lesley. Wesley Gosch was a sadistic, tyrannical braggart who sought to dominate
and control those around him in order to prop up his own inflated ego. By the time
ieaey, came into his life, Wesley suffered from constant pain from rheumatoid arthritis
due to injuries he had received from a plane crash when he was in the army; the arthritis
soon eroded his means to support himself and made him totally dependent on Lesley's
help to wash and dress.
Wesley physically abused Lesley at a very early age. Family members, for
example, recall seeing Lesley's arms "covered with bruises" after a visit to San Antonio.
30
On one occasion, recounts Lesley's aunt Enid, Wesley kicked Lesley "so hard he flipped
over," when Wesley became angry at Lesley’s failure to pick up his clothes -- a chore that
he was not even expected to do at such a young age. Ms. Hickerson observed Wesley
telling Lesley that he would "beat you good" and routinely threatening to whip him.
Lesley's protection against Wesley's physical brutality was his grandmother Eva,
who attempted to protect him from his adoptive father's wrath. Eva too bore the brunt of
Wesley's abuse, though it took the form in her case of mental, rather than physical,
assaults. Yet as cancer progressively consumed her body, Eva became increasingly less
able to serve as a protector.'’ Even in the hospital, bedridden and wasted, Eva still wished
to divorce Wesley. She also wanted to retain control over Lesley -- and to rescue him
from his grandfather's overbearing control -- by sending him back to Oklahoma with Enid
Hickerson. She died, however, leaving 11-year-old Lesley in the hands of Wesley Gosch.
When Eva died, a long, dark period of Lesley’s life began. Wesley isolated Lesley
from other children and from other family members. The beatings grew more severe,
with Wesley employing belts, electrical cords and anything else that was handy. Perhaps
most importantly, Lesley's view of the world was placed wholly in the hands of an
individual who was beset with paranoid and grandiose fantasies. Wesley Gosch
descended into complete madness before his death, but witnesses comment upon his
"7 By the time she died, one of Eva's legs had broken in two places because it had
been rotted by cancer, and it was held in place by a sleeve rather than a splint; another
family member estimates that Eva died weighing no more than 40 or 50 pounds.
31
irrational distrust and retelling of tall stories from Lesley's childhood."®
In any case, Lesley had begun to withdraw into a lonely, autistic fantasy world.
Ms. Fultz cenenibers his flat, unaffected behavior at Eva's funeral, a woman he loved
dearly. She also recalls a "haunting" quality about him as a child, because he seemed so
removed. Lesley's distance and imaginative life, constructed as bulwarks from the chaos
which had surrounded him from birth, found a hothouse atmosphere in his life with
Wesley.
Yet somehow Lesley managed to develop intellectually and spiritually in the midst
of this abuse, isolation, and unreality. In 1969, his long-time involvement in scouting
culminated in his receipt of the coveted Eagle Scout award. Raised by his grandfather in
the Mormon faith, Lesley also held several junior positions within the church hierarchy.
In high school, he was involved in ROTC. From an early age, Lesley had evinced an
interest in science and performed complex experiments. He continued to grow in his
knowledge of physics and eventually enrolled at the University of Texas, San Antonio.
Randall Wroblewski, a friend of Mr. Gosch's from this time, recalls how Lesley would
explain complex ideas in such a way that they became clear to him.
2. Adulthood and the beginnings of Mr. Gosch’s encounters with
the legal system
But Lesley's social inexperience and inability to deal with the real world made him
Tt is very possible that Mr. Gosch himself suffered from some form of Post-
Traumatic Stress Disorder; many of his delusions centered around the army trying to "cheat"
him out of benefits that he believed were rightfully his.
32
prone to other, more pernicious friends as well. Like Randy Wroblewski, John Laurence
Rogers, a high school friend, also depended on Lesley's tutoring skills, and in return
schooled Lesley Gosch in his first troubles with the law. In November 1974, Rogers,
taller and almost double Mr. Gosch’s size, induced Lesley to take part in the armed
robbery of two area pharmacies. Mr. Rogers received a ten-year prison sentence in the
Texas Department of Criminal Justice for his part in the robberies, while Mr. Gosch was
put on probation. The court's action on the two cases was determined in large part by the
testimony of a pharmacist who stated that Mr. Gosch prevented Mr. Rogers from shooting
him during the robbery.'®
As a condition of the probationary sentence he received for the robbery, Mr. Gosch
was ordered to undergo psychological counseling. At that time, Dr. Betty Lou Schroeder,
a court-appointed. psychologist, conducted a screening evaluation of Mr. Gosch and
diagnosed him with a schizoid personality disorder.” According to Dr. Schroeder's
report, Mr. Gosch required "[a]n extreme need for structure and preciseness in his
'° This important example illustrates Mr. Gosch's lifelong habit of forbearance in
stressful situations. Mr. Wroblewski has commented upon Mr. Gosch's admirable restraint
when dealing with his grandfather. For example, he recalls one occasion on which Lesley
called him to take him out in his car so that he could "cool off" before an argument with
Wesley erupted into violence. This was apparently a common pattern in the household.
?° The DSM-II definition for this disorder reads in part as follows: "This behavior
pattern manifests shyness, over-sensitivity, seclusiveness, avoidance of close or competitive
relationships, and often eccentricity. Autistic thinking without loss of capacity to recognize
reality is common, as are daydreaming and the inability to express hostility and ordinary
aggressive feelings. These patients react to disturbing experiences and conflicts with
apparent detachment."
33
environment verified morbid anxieties and perhaps may be traced to unmet dependency
needs as a child."
In 1977, Lesley was involved in a catastrophic accident which inflicted severe
physical and emotional damage to him. While experimenting with a method to stabilize
the highly volatile chemical lead azide, he inadvertently upset a sample of the chemical
and it exploded.’ At the time, he was employed handling ballistics, and medical records
indicate that Lesley explained he was trying to make a safer explosive at the time of the
accident. As a result, Mr. Gosch lost several digits, was completely blinded in one eye,
seriously damaged the other and induced in the surviving eye a condition called scotoma,
in which an opaque region in his vision will grow and then ebb.
Common sense tells us that Lesley Gosch's injuries would have made him more
isolated, vulnerable and prone to being led. In fact, he passed several years without legal
troubles before and after the accident. When John Rogers returned from prison, however,
he began again to draw Lesley into a criminal plot. Thus, Randall Wroblewski recounts
that Rogers would call Lesley using a code name to avoid detection by Wesley Gosch,
with whom he had fallen into disfavor since the robberies, so that he could allegedly plan
Ms. Patton's murder. It is clear from this chain of events that John Rogers instigated the
conversations which may have lead to Ms. Patton's death.
At the time of his arrest, Lesley was taking some initial first steps, if sometimes
2 As investigators later learned, explosives were not an uncommon element of the
Gosch household -- Wesley Gosch kept quantities of gunpowder, for example, in the house
to charge shotgun shells, a practice he had learned from his impoverished family.
34
misguided, to escape from his grandfather's control. Medical records reflect that Wesley
Gosch would not leave Lesley in peace even when he was convalescing after the
explosion. Afterwards, Lesley had found a girlfriend, Georgina Morejon,” and set up an
independent household with her after an abortive attempt to live at his grandfather's.
Having been brought up in an atmosphere where guns were a fact of everyday life, Mr.
Gosch's misadventure which resulted in his federal prosecution, is understandable if not
excusable.
Lesley's alleged involvement in the death of Rebecca Patton proceeded out of a
web of circumstances and developmental disadvantages which began at birth. The
complete absence of bonding during his childhood made him vulnerable in later life to
misguided and pernicious attachments. Wesley Gosch, the major parent figure in
Lesley’s life, upset the natural roles of parent and child such that the adolescent Lesley
became his caretaker, as well as the object of constant physical and emotional abuse. As
a result, Lesley Gosch retreated into a childhood world of fantasy, partially constructed of
his grandfather's fascination with guns and fueled by his own mechanical and scientific
curiosity, Befriended by other boys on the social margins who shared his developing
interest in weapons, Lesley was drawn into criminal activity by his high school friend
John Rogers and because of his need to escape from Wesley Gosch’s abusive and
domineering influence. This need and susceptibility, unteflective of Mr. Gosch’s true
” Ms. Morejon died in a car accident in Mexico in May, 1986.
35
nature, however, was specific to a time in Mr. Gosch’s life that has long since passed.
B. Who Lesley Gosch Is Today
Since his incarceration, Mr. Gosch has blossomed. He has been on death row for
over ten years. During that time, sheltered from the pernicious influences of his
grandfather, and for the first time able to direct and control his own development, he has
become a person worthy of our esteem regardless of whether he is measured against his
neighbors on the row, or any of us in the free world.
In the decade that he has resided at the Ellis Unit, Lesley has only incurred two
disciplinary infractions, that by any measure are entirely inconsequential, if not laughable.
He is considered an ideal inmate, and serves in the privileged role of trustee. He has
become an extremely talented artist and craftsman, and has produced pen and ink
drawings and oil paintings that are stunning in their detail and accuracy,”’ flutes copied
from those created by early American Indians, and an absolutely realistic recreation of a
Viking ship, accurately reproduced down to the number of movable oars that emerge
from its side.* He reads voraciously, and is particularly interested in books on ancient
history and eastern philosophy. He speaks five languages.
Aside from his talents, Lesley expends a great deal of energy reaching out to and
3 Two examples of these drawings are attached hereto as part of Appendix 5. As
Mr. Gosch is legally blind, these drawings are done with his face almost one inch from the
paper, and require in infinite amount of patience and skill.
*4 As Gary Trial, a friend of Lesley’s for over ten years, states: “[h]e can find
goodness in his surroundings.and then express that feeling through his artwork. His talents
would be wasted if you allow him to be executed.” See Appendix 3.
36
assisting others, both on death row and outside. For a while he began a jewelry
“business”, paying others on the row to make earrings and necklaces sold in the free
world. He used the profits to compile “welcome” bags for newly arriving inmates, which
included such sundries as toothpaste, toothbrush, comb, and various other personal
sundries often forgotten. Employing his intellect, he assists other inmates in
understanding the legal morass through which their cases are proceeding, and helps them
to draft legal motions or letters to attorneys.
Lesley’s positive characteristics - and their latency from childhood - are testified to
by the numerous letters in support submitted with this Application. See Appendix 3. Mr.
Jared, a retired Air Force Colonel who Lesley knew through his church, states
unequivocally that Lesley is “intelligent, kind and caring.” Id. Preston Knodell, a retired
philosophy professor who has known Lesley for over two decades, verifies that he is “a
person of high moral standards.” Id. Eva Gallego, a childhood friend and neighbor,
. states that Lesley is a “kind hearted . . [and] a giving and caring person.” Id.
Friends who have come to know him since his incarceration in Huntsville bear out
the testimony of those who knew Lesley at an earlier time. Major Katherine Cox, who
has counseled and come to know Lesley over the past eight years, states without
hesitation that Lesley is ”an intelligent, philosophical, and deeply spiritual individual. . .
Of all the people I have counseled on death row, Mr. Gosch is by far the most spiritual
and philosophical.” Id, Sister Joy Elder, a nun from Wales who has come to know
Lesley through correspondence and occasional visits over the past five years, states “[h]e
37
has spent eleven years reflecting at great depth and I feel that he is one of the wisest and
holiest men that I have met.””
It is difficult, if not impossible, to convey on paper a person’s worth. What is set
forth above can only give a first impression of who Mr. Gosch is and has become since
the beginning of his residency on death row. Understandably, this Board may view such
assertions with skepticism. Undersigned counsel submits that they are in all respects true.
If anyone is deserving of clemency on the grounds that he bears no threat to society, but,
instead, has an immens# amount to offer, it is Mr. Gosch.
°5 Numerous letters in support of Lesley, requesting that this Board and Governor
Bush commute his sentence, have also been submitted by many Europeans concerned and
frightened by Texas’ frequent implementation of the death penalty, and particular concerned
by the facts of Applicant’s case. See Appendix 4.
38
CONCLUSION
The evidence introduced against Mr. Gosch at his capital trial provided no
conclusive proof that he was the individual that shot Rebecca Patton. Subsequent
investigation has revealed that the evidence that purported to place him at the scene of the
crime is, in the most generous analysis, false. The evidence, considered as a whole,
leaves at the very least grave and substantial doubts that he shot Mrs. Patton to death
as the prosecution alleged at trial, and the overwhelming weight of the evidence
demonstrates that he did not do so. As a result, the case for executive clemency in
this case deserves the greatest and most serious consideration of the Governor and the
Board.
The circumstances that led to Mr. Gosch’s involvement with John Rogers and the
events surrounding Mrs. Patton’s death were the culmination of a childhood that rendered
Mr. Gosch pray to pernicious influences, and completely inhibited the positive
development of an enormous array of talents and valuable human characteristics. Since
his incarceration, Mr. Gosch has been able to grow into what he should have had a chance
to become in the free world: generous, humane, enormously talented artistically, and
deeply spiritual. It is no small feat accomplishing avec growth on death row.
Nonetheless, he has done so with grace and humility. He deserves a chance to live.
39
REQUEST FOR RELIEF
On behalf of Lesley Lee Gosch, undersigned counsel respectfully petitions the
Texas Board of Pardons and Paroles for a recommendation to the Honorable George
Bush, Governor for the State of Texas, to commute Mr. Gosch's sentence of death to life
imprisonment, and respectfully petition the Board and the Governor for a 30-day
reprieve of Mr. Gosch's January 15, 1998 execution date to allow the Board to convene
a hearing to consider evidence and argument in support of this application.
Respectfully submitted,
Raoul D. Schonemann
Texas Bar No. 00786233
Maurie Levin
Texas Bar No. 00789452
P.O. Box 280
Austin, TX 78767
(512) 320-8300
(512) 477-2153 (fax)
Counsel for Lesley Lee Gosch
40
BEFORE THE GOVERNOR FOR THE STATE OF TEXAS
AND
THE BOARD OF PARDONS AND PAROLES
In re
LESLEY LEE GOSCH,
Applicant.
SUPPLEMENT TO
PREVIOUSLY FILED APPLICATION FOR REPRIEVE
FROM EXECUTION OF DEATH SENTENCE AND
COMMUTATION OF SENTENCE TO IMPRISONMENT FOR LIFE
Submitted by: Raoul D. Schonemann
Texas Bar No. 00786233
Maurie Levin
Texas Bar No. 00789452
P.O. Box 280
Austin, TX 78767
(512) 320-8300
(512) 477-2153 (fax)
Counsel for Lesley Lee Gosch
SUPPLEMENT TO
PREVIOUSLY FILED APPLICATION FOR CLEMENCY
AND MEMORANDUM IN SUPPORT THEREOF
Lesley Lee Gosch respectfully submits this Supplement to his previously filed
Application for Reprieve From Execution of Death Sentence and Commutation of Sentence to
Imprisonment for Life, requesting that this Board of Pardons and Paroles recommend, and that
the Governor grant, a commutation of his sentence of death to life imprisonment. To facilitate
this request, Mr. Gosch is seeking a 30-day reprieve so that the Board may convene a hearing in
order to fully and fairly consider the merits of this Application.
Mr. Gosch respectfully submits this supplement to bring to the attention of the Governor
and the Board and Pardons and Paroles several important developments that have occurred since
he filed his application for clemency in January:!
I
First and foremost, Mr. Gosch has recently learned that his co-defendant John
Laurence Rogers, originally sentenced to 45 years imprisonment for his part in the murder of
Rebecca Patton, will be released from prison in June, less than two months after Mr. Gosch is
scheduled to be executed for the same offense. Although the prospect of Rogers’ imminent
liberty calls attention to the manifestly disproportionate sentences that each co-defendant
' Mr. Gosch was recently informed by the Board of Pardons and Paroles that the vote
previously taken on the clemency application he submitted in January is considered “moot” in light
of the stay of execution issued by the U.S. Supreme Court on the eve of Mr. Gosch’s scheduled
execution. Thus, he is resubmitting his original application, along with this supplement setting out
recent developments pertinent to the issues raised.
received for his conviction in this case, it is particularly indefensible in light of the substantial
evidence, detailed at length in Mr. Gosch’s previously filed application for clemency, that
indicates that it was John Rogers, and not Lesley Gosch, who fired the fatal shots that killed
Mrs. Patton:
(dy
(2)
Unlike the able-bodied Rogers, Lesley Gosch was physically incapable of
carrying out the planned kidnaping of Mrs. Patton. According to John
Rogers’ testimony at trial, he and Gosch planned for one of them to gain entry to
the Patton home by posing as a flower delivery man, hold Mrs. Patton at
gunpoint, bind her with electrical tape, and then drive her to a remote location in
her own car where she would be left until the ransom money was paid. As a
teenager, Gosch was involved in an accident in which he lost an eye and was left
with such poor eyesight in the other eye that he is legally blind. Given this
disability, Mr. Gosch could not have backed a car out of the Patton driveway
without knocking over the mailbox much less driven it through traffic on the busy
roads and highways of San Antonio. It is simply inconceivable that the two co-
defendants would have devised a plan that called for Lesley Gosch, instead of
John Rogers -- a cabdriver by profession -- to drive the victim from the crime
scene.
Moreover, in the same catastrophic accident in which he lost his vision,
Gosch also lost four of his fingers and the thumb on his left hand, as well as
portions of the thumb and index finger of his right hand. For all practical
purposes, these disabilities would have made it impossible for him be able to
brandish a weapon with one hand while binding Mrs. Patton with electrical tape
with the other. Again, it defies common sense that the two co-defendants would
have chosen Gosch, and not Rogers, to go to the Patton house to attempt to abduct
Mrs. Patton at gunpoint.
Two neighbors of the Pattons’, Virginia Marks and Esther Saavedra, saw
John Rogers alone in the Patton neighborhood before the murder. Unknown
to the jury that sentenced Mr. Gosch to death, two neighbors of the Pattons
reported to investigating law enforcement officers that they saw a man matching
John Rogers’ physical description alone in the Patton neighborhood in the days
before and the day of the murder.” These unbiased witness statements contradict
? See statements of Virginia Marks and Esther Saavedra, attached hereto as Appendices 6 and
7, respectively. The appendices to Mr. Gosch’s original application were numbered | through 5;
John Rogers’ unsubstantiated claim at trial that it was Gosch, and not himself,
who went to the Patton home posing as a flower deliveryman to attempt to abduct
Rebecca Patton by force.
Virginia Hartman Marks gave a sworn statement that several days before
the murder, at approximately 2:30 p.m., she observed a "beat up taxi with a round
faced man driving."> When Ms. Marks first noticed the taxi it was parked on the
wrong side of the street; she then observed the taxi drive off "very slowly[,] as if
the driver was lost," and make repeated drives through the neighborhood. Ms.
Marks only observed one man in the car, whom she positively identified from
news reports as John Rogers. Ms. Marks’ statement contradicts John Rogers’
self-serving trial testimony, in which he claimed that he and Gosch "cased" the
neighborhood on numerous occasions together, and that he never did so alone.
Similarly, Esther Beatrice Saavedra, who lived across the street from the
Patton's home, stated in a sworn statement to police that at approximately 2:45
p.m. on the day of the murder, she observed a white van parked across the street
in front of the Patton residence. She then observed a heavy set white man --
"about 300 pounds, wearing wire rim glasses, a light colored long sleeve shirt and
baggy dark colored pants" -- walking "very fast" toward the van. Ms. Saavedra
had never seen the man before, but she recognized him in the newspaper as the
man "the police had arrested for the murder of Ms. Patton." Ms. Saavedra’s
description of the suspect perfectly matches the physical appearance of John
Lawrence Rogers: He weighs more than 300 pounds, wears wire rim glasses, and,
by his own admission in his testimony at trial, was wearing a white long sleeve
shirt and dark suit pants on the day of the crime. By contrast, Lesley Gosch was
of slight build and weighed only about 135 pounds, and wore black plastic frame
glasses.
thus, appendices to this supplement are numbered sequentially to the original.
3 In an affidavit submitted by Detective Sergeant Giles Fortson in support of a search warrant
for John Rogers’ car, Detective Fortson averred that he had spoken with Ms. Marks and “believe[d]
her to be a credible source because she is permanently employed, she owns a realty company in the
city, and as far as I know her reputation for truthfulness is nothing other than good.” At that time,
Ms. Marks identified the driver of the vehicle she observed as John Rogers.
* In addition, according to John Rogers’ testimony at trial, Gosch was wearing blue jeans
and a dark t-shirt on the day that Mrs. Patton was killed. Thus, Ms. Saavedra’s description of the
suspect seen in the Patton neighborhood does not match the appearance of Lesley Gosch in any
respect.
(3)
(4)
()
According to the undisputed testimony of the prosecution’s own witnesses at
trial, John Rogers was in possession of the murder weapon and other
instrumentalities of the crime both immediately before and after Mrs.
Patton’s murder; Gosch, in contrast, was not. It is undisputed that John
Rogers was seen in possession of the murder weapon, a .22 Ruger, both before
and after the crime occurred, and that the phony “flower box” that was used as
part of the ruse to gain entry to the Patton home was observed in Rogers’
apartment. In fact, prosecution witnesses Stephen Hurst and John Howells both
testified that they saw Rogers fire the .22 Ruger into a pile of magazines at his
apartment. After the murder, Rogers had extensive contacts with Hurst and
Howells in an effort to get rid of the murder weapon. Neither Hurst nor Howells
ever saw Gosch in possession of the weapon or anything else connected to the
homicide; thus, Rogers’ claim that he gave the weapon and the phony flower box
to Lesley Gosch to use during the planned abduction is wholly unsubstantiated by
any other witness.
Evidence related to the murder was seized from John Rogers’ apartment and
car, which logically links Rogers but not Gosch to the murder. Finally, all
items of evidence that the prosecution alleged were linked to the offense were
found in either Rogers’ apartment or his car. For example, law enforcement
officers seized numerous items from inside Rogers' apartment, including several
more guns, ammunition, and a gun cleaning kit. In addition, investigating officers
also seized a pair of gloves from Rogers’ car that at trial the prosecution attempted
to suggest Mr. Gosch wore when he entered the Patton's house in an effort not to
leave any fingerprints. However, there was absolutely no evidence to link the
gloves -- one of which was found in Rogers’ coat pocket -- to Mr. Gosch. In fact,
Mr. Gosch is an unlikely candidate for such gloves, for the obvious reason that he
is missing fingers on both hands. In contrast, Rogers tried the gloves on while on
the witness stand, and they fit him perfectly.
During two prior robberies committed twelve years earlier by Rogers and
Gosch as juveniles, Rogers was principally responsible for planning and
carrying out both crimes. In November 1972, while Lesley Gosch was 17 years
old and still in high school, John Rogers, taller and almost double Lesley Gosch’s
size, induced Gosch to take part in the armed robbery of two area pharmacies on
the same day. In‘both cases, it is clear that Rogers instigated the crimes and
played the primary role in their commission. In the first robbery, Rogers entered
the Jefferson Pharmacy alone, pointed a sawed-off shotgun at the clerk, and
demanded money from the cash register; Gosch never even entered the store, but
remained behind with the car. During the second robbery committed later that
evening, Gosch entered the Lakeview Pharmacy and asked for some band-aids to
“divert attention,” while Rogers again entered the store, brandished the sawed-off
shotgun and demanded money. For their respective involvement in these
offenses, John Rogers received a ten-year prison sentence in the Texas
Department of Criminal Justice, while Gosch was placed on probation; Gosch’s
probationary sentence was due in part by the testimony of a pharmacist who stated
that Gosch prevented Rogers from shooting him during the robbery. Although
the facts of these prior offenses do not prove what happened during the Patton
murder, they demonstrate that John Rogers tended to assume the principal role in
carrying out offenses in which both he and Gosch were involved.
In short, the vast weight of the evidence supports the conclusion that John Rogers
-- and not Lesley Gosch, as Rogers claimed at trial -- “cased” the Patton residence prior to the
murders, went to the Patto‘: residence and gained entry to the home, and then shot Mrs. Patton to
death. On the basis of this evidence, Lesley Gosch -- not John Rogers -- is deserving of a
sentence less than death. Yet it is Gosch who counts down the days to his execution on April
24th, while Rogers looks forward to his release from prison less than two months later.
As the Supreme Court explained more than 70 years ago:
Executive clemency exists to afford relief from undue harshness or evident mistake in
the operation of the criminal law. The administration of justice by the courts is not
necessarily always wise or certainly considerate of circumstances which may properly
mitigate guilt. To afford a remedy, it has always been thought essential . . . to vest in
some other authority than the courts power to ameliorate or avoid particular criminal
judgments. It is a check entrusted to the executive for special cases.*
Throughout our nation’s history, executive clemency has frequently been granted in
capital cases “in which an equally or more culpable codefendant was not sentenced to death.”
5 Ex parte Grossman, 267 U.S. 87, 120-21 (1925).
§ Michael L. Radelet and Barbara A. Zsembik, Executive Clemency in Post-Furman
Capital Cases, 27 U. RICHMOND L. REV. 289, 301-302 (1993).
As one commentator noted, a disproportionate disparity in the severity of sentences “offends the
public’s need to view the criminal justice system as fair,” and was “often” cited as a basis for
clemency in capital cases in this century.’ Among cases in which clemency was granted to
redress a disproportionate disparity in sentencing are the following examples:
* In 1977, Georgia death row inmate Charles Hill’s sentence was commuted to life
imprisonment, because his co-defendant -- the actual “triggerman’” -- had been
sentenced to life.*
* In 1980, Florida death row inmate Richard Gibson’s death sentence was
commuted to life imprisonment because of sentencing disparities between co-
defendants: one of Gibson’s accomplices had been sentenced to life and two
others were never prosecuted.”
* In 1988, Georgia death row inmate Freddie Davis’ sentence was commuted
because a co-defendant, although equally culpable, was sentenced to life. The
commutation was granted because the Georgia Board of Pardons and Paroles felt
that similar degrees of culpability warranted similar punishments; said one
member of the Board, “The scales of justice were just out of balance on this
one.”"”
* In 1991, Ohio death row inmate Beatrice Lampkin’s sentence was commuted to
life imprisonment, in part because her co-defendant (a man whom she had hired to
7 Michael A.G. Korengold, Todd A. Noteboom, Sara Gurwitch, And Justice for Few: The
Collapse of the Capital Clemency System in the United States, 20 HAMLINE L. REV. 349, 358
(1996).
8 David Morrison, Hill Death Sentence Commuted.to 99 Years, ATLANTA CONST., Sept.
30, 1977, at 18A.
° Graham Commutes Gibson Sentence, FLA. TIMES-UNION (Jacksonville), May 7, 1980,
at B4.
Tracy Thompson, Panel Commutes Davis Execution to Life Sentence, ATLANTA
ConsT., Dec. 17, 1988, at 1.
kill her husband) had received a life sentence.'!
* In 1991, Georgia death row inmate Harold Williams’ sentence was commuted
after his accomplice (a half-brother) was convicted only of voluntary
manslaughter. In commuting Williams’ death sentence to life imprisonment, the
Georgia Board of Pardons and Paroles cited the disproportionate sentence
received by the accomplice; the chair of the Board of Pardons was quoted as
saying, “There was ample evidence the co-defendant, Dennis Williams, was the
ringleader in the murder.” Among those requesting clemency was former
President Jimmy Carter.”
To the degree that one goal of the death penalty is to secure “justice,” clemency can help
insure that the punishment among codefendants is equitably distributed according to their
relative culpability. Chief Justice William Rehnquist has stated, “[c]lemency is deeply rooted in
our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of
justice where judicial process has been exhausted.”!? Although the grossly disproportionate
sentencing disparity between Lesley Gosch and John Rogers implicates core constitutional
concerns, it is beyond the reach of the state or federal judiciary to adjust Mr. Gosch’s sentence
accordingly. Only by granting executive clemency and commuting Lesley Gosch’s death
sentence to life imprisonment can the Board and Governor redress this manifest injustice.
Il
" Stark Killer’s Sentence Commuted by Celeste, BEACON J. (Akron, Ohio), Jan. 11, 1991,
at 1.
B Jingle Davis, Ex-Marine’s Death Sentence for Murder is Commuted, ATLANTA CONST.,
Mar. 23, 1991, at BS.
8 Herrera v. Collins, 113 S. Ct. 853, 866 (1993).
There is one other important development since Mr. Gosch filed his clemency application
in January that must be brought to the attention of the Board: On March 25, 1998, a majority of
the Justices of the United States Supreme Court announced in Ohio Adult Parole Authority v.
Woodard, that clemency proceedings in capital cases must observe basic requirements of due
process. The Justices’ opinions in Woodard oblige this Board to give Mr. Gosch’s clemency
application meaningful review and strongly counsels in favor of granting him a hearing at which
he can present evidence and argument in support of his plea.
When Mr. Gosch originally filed his clemency application earlier this year, he strongly
urged the Board to grant a hearing in order to give full and fair consideration to the basis for his
request. Mr. Gosch observed that of the 37 inmates executed last year, the Board had not
granted a hearing in a single case. Indeed, although Texas has executed more inmates since 1976
than almost all other death penalty jurisdictions combined, only one Texas inmate has even been
granted a hearing before the Board and not a single Texas death-row inmate has been granted
clemency for reasons other than judicial expediency.'* In contrast, other active death penalty
states, such as Florida, Georgia, Virginia, and Ohio — each of which has carried out many fewer
executions than Texas — have granted clemency in capital cases where appropriate circumstances
‘* Clemency has been granted in a number of Texas death penalty cases for reasons of so-
called “judicial expediency” — that is, “because courts had vacated, or were likely to vacate, the death
sentence, and a commutation would save the time and expense of going through a new sentencing
proceeding.” Michael L. Radelet and Barbara A. Zsembik, Executive Clemency in Post-Furman
Capital Cases, 27 U. RICH. L. REV. 289, 292 (1993). Commutations were granted in Texas cases
because the Supreme Court’s decisions in Adams v. Texas and Estelle v. Smith would have required
retrials in many cases; for purposes of judicial expediency, the State granted these inmates
commutations. .
indicated that a lesser punishment was appropriate.'*
In recent years, constitutional and legal scholars have criticized the absence of
meaningful clemency review in capital cases and have suggested that clemency procedures are
not immune from state and federal due process requirements.'® As Professor Daniel Kobil has
observed:
Because clemency is an integral part of our federal constitutional
scheme and all state systems of justice, it ought to function in a
meaningful way. If a criminal punishment system which includes
the death penalty, but not executive clemency, is indeed “totally
alien” to American notions of justice, then it would seem that the
dispensing of clemency must be more than a sham or perfunctory
exercise. This is particularly true in death penalty cases where
there is a heightened need to be sensitive to the values underlying
the Due Process Clause and where clemency is historically the
vehicle for preventing miscarriages of justice.'”
Specifically, the denial of a public hearing in capital clemency proceedings has generally
5 According to a 1993 survey of clemency grants in capital cases nationwide, Florida had
granted clemency in six cases for humanitarian reasons; Georgia had granted clemency in four; Ohio
in eight; and Virginia in two. See Michael L. Radelet and Barbara A. Zsembik, supra, note 14, at
300.
'6 See, e.g., Coleen E. Klasmeier, Towards a New Understanding of Capital Clemency and
Procedural Due Process, 75 B.U.L. REV. 1507 (1995); Daniel Lim, State Due Process Guarantees
for Meaningful Death Penalty Clemency Proceedings, 28 COLUM. J.L. & SOC. PROBS. 47 (1994);
Daniel T. Kobil, Due Process in Death Penalty Commutations: Life, Liberty, and the Pursuit of
Clemency, 27 U. RICH. L. REV. 201 (1993); Hugo A. Bedau, The Decline of Executive Clemency in
Capital Cases, 18 N.Y.U. REV.L. & SOC. CHANGE 255 (1990-91); Deborah Leavy, A Matter of Life
and Death: Due Process Protection in Capital Clemency Proceedings, 90 YALE L.J. 889 (1981).
'T Daniel T. Kobil, supra, note 16, at 217.
been considered to be particularly violative of fundamental due process norms:
In many instances, the secrecy surrounding acts of clemency
extends even to the process by which clemency decisions are
made. It is often difficult or impossible to ascertain whether, in a
particular case, the governor or president has c
arefully considered all of the available information bearing on
clemency, has made a purely self-serving decision to deny or grant
clemency, or has flipped a coin. This procedural “blackout” takes
on greater significance in view of the increasing willingness of
society and the courts to impose the death penalty and the apparent
decline of clemency in capital cases. If executives do not employ
reasonably fair procedures in making clemency decisions, how can
we be assured that clemency is fulfilling its function of providing
“a final deliberative opportunity to reassess the moral and legal
propriety of the awful penalty which [the State] intends to
inflict?”"*
In recent years, the Texas clemency process, in particular, has been the subject of
considerable criticism."® In addition to not providing Texas clemency applicants with the
“minimum” protections of a hearing that comports with due process, the Texas clemency
procedures have been faulted for other perceived failings as well:
[C]lemency boards should consider applications in a formal
setting. Board members should debate merits of an application
8 Td. at 201.
® See, e.g., Stephen E. Silverman, There Is Nothing Certain Like Death In Texas: State
Executive Clemency Boards Turn a Deaf Ear to Death Row Inmates’ Last Appeals, 37 ARIZ. L. REV.
375 (Spring 1995); Texas Clemency ‘Sorely Inadequate’, TEXAS LAWYER, May 17, 1993, at 18; New
Clemency System Urged: Lawyers Say Process Inadequate in Death Penalty Cases, DALLAS
MORNING NEWS, May 67, 1993, at20A. See also Graham v. Texas Bd. of Pardons and Paroles, 913
S.W.2d 745-749-50 (Tex.App.-- Austin 1996) (noting that tradition of clemency as a “fail-safe” for
death-row inmates “is subject to serious criticism” and that although “abuses” of clemency power
have been reduced “the clemency process is still greatly affected by public opinion and political
pressures”). :
10
“face to face.” The Texas Board of Pardons and Paroles action of
voting by facsimile machine to deny Gary Graham a hearing on his
claim of innocence appears particularly susceptible to procedural
abuses.””
Indeed, a member of the highest court of this state deems Texas’ clemency process to be “a legal
fiction at best.” Ex Parte Tucker, 1998 WL 28104 at *6 (Tex. Crim. App.) (Overstreet, J.,
concurring).
The Supreme Court’s recent decision in Woodard marks a substantial step in the Court’s
constitutional jurisprudence toward recognition that the executive clemency process must
comport with basic norms of federal due process. In a landmark decision, five Justices of the
Supreme Court found that executive clemency procedures are subject to the federal due process
clause. As Justice Stevens wrote:
The interest in life that is at stake in this case warrants even greater
protection than the interests in liberty at stake in [other due process
cases decided by the Supreme Court]. For “death is a different
kind of punishment from any other which may be imposed in this
country.... From the point of view of society, the action of the
sovereign in taking the life of one of its citizens also differs
dramatically from any other legitimate state action. It is of vital
importance to the defendant and to the community that any
decision to impose the death sentence be, and appear to be, based
on reason rather than caprice or emotion.” Those considerations
apply with special force to the final stage of the decisional process
that precedes an official deprivation of life.”
Although the Court found that the Ohio Death Penalty Clemency Procedure at issue in
2° Silverman, supra note 18, at 395.
21 Woodard, __U.S.__, __S. Ct.__, No. 96-1769 (Stevens, J., dissenting in the judgment)
(quoting Gardner v. Florida, 430 U.S. 349, 357-58 (1977)).
11
Woodard satisfied the minimum constitutional due process requirements, it must also be
observed that the Ohio clemency procedures provided for a hearing in death penalty cases before
the parole board at least 21 days in advance of a scheduled execution, as well as reasonable
notice of the scheduled hearing -- procedures that are lacking in Texas.”
Thus, Woodard raises serious questions about the constitutional adequacy of Texas’
clemency practices and procedures in death penalty cases. In order to ensure that Mr. Gosch’s
clemency application receives the constitutionally meaningful review to which he is entitled, Mr.
Gosch strongly reurges his request that the Board grant a hearing in this case.
Ii.
Mr. Gosch is seeking commutation of his sentence of death to life imprisonment. The
facts set forth in his original application, and the materials submitted in support, evince that he is
a perfect candidate for this relief. Mr. Gosch is the perfect candidate for commutation: he has a
pristine prison record, has developed extraordinary talents and skills while living on death row,
and provides solace, guidance and humour to those he comes sat contact with, whether
incarcerated at the Ellis Unit or living in the free world. In short, he does not present a danger to
society, and exhibits qualities that warrant this Board’s compassion. Mr. Gosch’s desire is only
to live, and he recognizes that if he is allowed to do so he must remain in prison. To assure this
2 Id, (O’Connor, J., concurring) ( Ohio clemency procedures that mandate that the parole
board schedule a clemency hearing for a date at least 21 days in advance of execution, entitle
prisoner to a pre-hearing interview with one or more parole board members, and Provide | 10 days
notice of the hearing satisfied applicable requirements of due process).
12
Board of his acceptance of this fact, Mr. Gosch has executed.an affidavit stating that he waives
any and all right he may have in the future to seek parole or release on mandatory supervision,
attached hereto as Appendix 8.
13
~
CONCLUSION
For the reasons stated above and in Mr. Gosch’s previously filed application, Applicant
respectfully requests that this board recommend to the the Hon. Governor Bush that his sentence
be commuted to a sentence of life imprisonment. In the alternative, he submits that he is entitled
to a hearing on the issues presented, and that a thirty day reprieve is necessary to afford both
sides adequate preparation time. The relief request is warranted by the merits of the issues
presented, and by the seminal Supreme Court decision affirming that Mr. Gosch’s soriitotiorl
life interest demands that he be afforded due process in these proceedings.
Respectfully submitted,
Raoul D. Schonemann
Texas Bar No. 00786233
Maurie Levin
Texas Bar No. 00789452
P.O. Box 280
Austin, TX 78767
(512) 320-8300
(512) 477-2153 (fax)
Counsel for Lesley Lee Gosch
— oo
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