BEFORE THE GOVERNOR OF TEXAS
AND THE TEXAS BOARD OF PARDONS AND PAROLES
In Re
BILLY DWAYNE WHITE,
Petitioner.
PETITION FOR CLEMENCY
AND REQUEST FOR REPRIEVE
RICHARD H. BURR EDEN HARRINGTON
STEVEN W. HAWKINS Texas Bar No. 09048000
NAACP Legal Defense and MANDY WELCH
Educational Fund Texas Resource Center
99 Hudson Street, 16th Floor 3223 Smith, Suite 215
New York, NY 10013 Houston, TX 77006
(212) 219-1900 (713) 522-5917
COUNSEL FOR APPLICANT
Introduction
In 1988, a public opinion poll in Texas revealed that 73%
of the persons polled said that capital punishment should not
be used "in cases where the person is mentally retarded."
Dyer and Claassen, The Texas Poll, November 15, 1988.1 Billy
Dwayne White has mental retardation and is scheduled to be
executed between midnight and dawn on April 23, 1992. Most
Texans would reject his execution. Without the intervention
of Governor Richards and the Texas Board of Pardons and
Paroles, however, Mr. White will likely be put to death.
Some may say that the results of the Texas Poll mean
nothing. Opposition to the death penalty for people with
mental retardation, they say, is based upon an inaccurate
understanding of retardation, for most people think of
severely retarded persons when they imagine a person with
mental retardation, and people who are severely retarded are
too disabled to commit murder or to be tried if they do kill.
Billy White's case is palpable proof that the instincts
of Texans are not misguided. He has mild mental retardation,
not severe mental retardation, but even mild mental
retardation is a severe disability. As Professor Ruth
Luckasson, one of the leading mental retardation specialists
*Press summaries of the polled are provided herewith as
Appendix A.
in the country, has noted in her report about Mr. White,
"(Thjis mental retardation affects every dimension of his
life." Appendix B, at 1. In Mr. White's case, the effect of
mental retardation has even intruded, insidiously, into the
fundamental fairness of the process by which he was convicted
and sentenced to death.
Though Mr. White has had mental retardation all his life,
first documented when he was eight years old by the public
school system of Houston, that fact, which "affect[ed] every
dimension of his life," was not known to his lawyer, the
prosecutor, the judge, or the jury at his capital trial in
1977 « As we will demonstrate, it surely affected his
responsibility for the crime, for it shaped him into a person
who could commit the crime described by Alge Spinks, the
eyewitness and surviving spouse of the victim, Martha Laura
Spinks. It also affected his ability to defend himself, for
it prevented him from divulging, remembering, or even
recognizing crucial facts related to his degree of
culpability. Finally, while Mr. White's trial lawyer and
habeas corpus lawyers share considerable responsibility for
not investigating facts crucial to Mr. White's defense,
including his mental retardation, his disability has even
played some role in his lawyers’ inadequate representation,
for one of the survival skills of persons with mild mental
retardation is the ability to "pass," to appear to be of
3
average ability to those with whom the person has casual
contact. Thus, though his lawyers' failure to discover his
mental retardation cannot be excused, Mr. White's lawyers were
vulnerable to ignoring his disability if they did not conduct
a thorough investigation of his life.
As we give texture and detail to the ways in which mental
retardation has affected every dimension of Billy White's life
and capital case, the reasons for granting clemency will
emerge with crystal clarity. He is less culpable than non-
retarded persons for the crime that led to his death sentence.
His trial was a profoundly inadequate and unreliable vehicle
for arriving at the determination that he should be put to
death. And he is a gentle, compassionate, trustworthy,
remorseful man, who can safely and productively live in
prison.
REASONS FOR GRANTING CLEMENCY
A. Mr. White Has Mental Retardation
Mental retardation contains three elements: (1
significantly subaverage general intellectual functioning (IQ
of 70-75 or lower), (2) existing concurrently with impairments
in adaptive behavior, and (3) manifested during the
developmental period (before one's eighteenth birthday).
Appendix B, at 2. Examination of Mr. White and his life
history has revealed the presence of all three elements.
4
On April 15, 1992, psychologist Windel Dickerson, from
Bryan, conducted a battery of psychological tests with Mr.
White. He determined that Mr. White's full scale IQ is 66.
Appendix C, at 2 (report of Windel Dickerson, Ph.D.). Finding
that IQ score consistent with a public school measure of Mr.
White's IQ as 69 in 1966, and with Mr. White's school history,
Dr. Dickerson found that Mr. White has had "significantly
subaverage general intellectual functioning" "during the
developmental period." Appendix C. Following a detailed
review of Mr. White's school records, Texas Youth Council
records, and Department of Corrections records, Professor
Luckasson agreed with Dr. Dickerson's assessment that Mr.
White had an IQ below 70, which was manifested long before his
eighteenth birthday. Appendix B, at 2-6.
Professor Luckasson also conducted the assessment of the
final element of mental retardation, "impairments in adaptive
behavior." To examine this element, Professor Luckasson
obtained and reviewed data with respect to the nine areas of
adaptive behavior that are deemed most important by mental
retardation professionals: communication, self-care, home
living, social skills, community use, self-direction, health
and safety, functional academics and leisure and work. She
found that Mr. White's behavior was impaired in nearly all
these areas:
The school, in addition to scores indicating mental
5
retardation, documented problems in Billy's
relationships with his peers and some teachers.
(It appears that a number of teachers and
principals took a special interest in this young
boy, and attempted to provide him extra care and
attention.) Family and friends who knew Billy
through his life uniformly report that he had
cognitive difficulties, needed a great deal of
help, and could not do many things. Not
surprisingly, family and friends use caring
euphemisms such as "kind of slow" to describe his
disabilities, and quickly mention certain positive
characteristics such as generosity, when discussing
the many things he could not do. His aunt Eva Hale
reported that she "knew Billy was slow and not up
to par in reading, writing, or spelling, but [she]
didn't talk about it to other people." The stigma
of intellectual impairment is so strong that many
families are reluctant to name mental retardation
in plain terms or readily admit, even to
themselves, that a family member has the
impairment.
Billy's intellectual impairments interfered with
his ability to work. Several family members
reported that if one told Billy exactly what to do
and took him to the place where it was to be done,
Billy could do some work. If he were left on his
own, and not specifically guided, he could not do
it. His Aunt Nina Cooper stated that "[hle
couldn't even write well enough to fill out a job
application.”
Billy himself also reports many problems with
adaptive behavior. For example, although he claims
to know how to drive, he admits he would never go
to try to get a drivers' license because he knew he
couldn't pass the test. It seems likely that Billy
mistakenly overestimates his driving ability.
Rockeeler Scott explained that her father got him a
job as a dump truck driver and her brother
attempted to teach Billy how to do the job. Billy
could not remember to operate the clutch correctly
so he was fired. (It appears that he was also
fired from his only other job. Hired as a kitchen
worker, he was fired when he couldn't learn to
operate a dishwasher.) During the few months when
Billy had the job as a dump truck driver, Oscar
Domino Jr. picked him up for work every day in
6
order to assure that he would get to work.
Rockeeler Scott stated that "he really tried to
hold a job, but he just couldn't.”
Mr. Domino also accompanied Billy for daily living
activities such as shopping. Mr. Domino would read
clothing sizes and tags for Billy so that he could
make purchases.
Many family members described Billy's communication
impairments. They reported that things had to be
repeated over and over for Billy to understand.
They also described attempting to use different
words to explain things, trying to get Billy to
understand. Coreida Baines explained that Billy
couldn't read and couldn't keep a job because "he
wouldn't know what he was doing". She also stated
that "everybody loved Billy" and that he "tried to
cover up things he couldn't do.”
Many family members observed that Billy always
tries to be with other people. Alone, there are
too many things that he can't do, but if others are
nearby he can get someone to help. This appears to
be a strong technique for Billy to cope with his
mental limitations--getting others to help with the
many things he cannot figure out. He has continued
this technique in prison, getting smarter inmates
to write things for him, for example.
Appendix B, at 6-8.
On the basis of all the available data, therefore, there
is no doubt that Mr. White has mental retardation and that he
has had it from at least the age of eight, and probably from
birth. Appendices B and C.
B. How Mental Retardation Has Affected Mr. White's Life
To understand why Billy White's execution would be such
an affront to human decency, one must understand, in everyday
terms, how mental retardation has impaired Billy's ability to
function. The observations of those who have known Billy over
7
the years bring into sharp focus the constrictive boundaries
which mental retardation drew around Billy's life.
People with mental retardation are often highly dependent
on other people to help them function in their daily lives.
Appendix B, at 8. As Professor Luckasson noted, "Billy's
dependence on more intelligent people for assistance is a
pattern that runs through his life." Id. It is the most all-
encompassing, pervasive, and constant pattern in his life.
Billy's early and primary dependence was in relation to
his mother. Numerous people have observed what Billy's
brother Larry White has observed: "(Billy] was always up
under her when we were small. When the rest of us wanted to
go outside and play, Billy would want to stay inside with
momma." Appendix D (affidavit of Larry White). See also
Appendix E (affidavit of Eva Hale); Appendix F (affidavit of
Lennie Bell White). The reason for Billy's primary dependence
on his mother became painfully apparent when she died in 1966,
when Billy was eight years old. Appendix E. As a childhood
friend, Janet Porter, has explained,
What I remember most about Billy was that he would
say things all the time about how much he missed
his mother. He would say that he wished she was
alive to watch over him and keep him out of
trouble.
Appendix G. See also Appendix H (affidavit of Coreida
Baines); Appendix E.
Billy's need for guidance was only one of several reasons
8
he was so dependent on other people. Because of his
retardation, he often just could not think of things to do
with himself. He needed others with him to activate him and
move him in any direction. Even as a child this was readily
apparent:
[Billy] was a follower and would just go along with
what the other kids wanted to do. He was the kind
of kid that didn't put up any fuss. When the
others came up with an idea or wanted to do
something, Billy would always agree.
Appendix E. See also Appendix I (affidavit of Nina Cooper)
("he played mostly with his cousins, and he would go along
with whatever they wanted to do").
His dependence also grew out of his need for acceptance
and protection by more able people. Because of his mental
retardation, Billy was often picked on, victimized, and
singled out for humiliation. As his brother Larry has
explained,
When we were growing up, Billy was always slower
than the other kids. I remember kids would jump on
him and tease him. They would call him "dumb" and
"stupid." These words really upset him and he
would get confused when they started asking him a
whole bunch of questions.
Appendix D. Other kids "used to take his lunch money and
clothes." Appendix J (affidavit of Henry Wyatt). Sometimes
even teachers would subject him to public ridicule for his
disabilities. See Appendix K (affidavit of Josetta
Weathersby) (recounting a teacher's ridicule for Billy's
inability to read).
The cruelties visited upon him led Billy to seek
acceptance and protection from people. In response, as Henry
Wyatt explains, "a bunch of us older guys became his
"protectors'." Appendix J. Larry White further observed,
"Billy only began to feel good about himself when he started
hanging around an older group of fellas. There was this man
named Roy Charles who made Billy feel important
-.." Appendix D. This man, Roy Charles Baines, explained
what he and others offered Billy: "Billy looked up to me and
would confide and trust in me. Sometimes Billy would be with
me and just start to cry. He would say that no one loved him
or cared about him.” Appendix L (affidavit of Roy Charles
Baines).
The influence that these other people were able to
exercise upon Billy was profound. His need for them led him
to do whatever they wanted him to do. See Appendix E ("[hle
liked to please people and he would try to do what they
wanted"). His Aunt Nina saw Billy being pulled along by
others and realized how powerful the pull was:
When Billy got older, he started following other
kids off from home. It was like the people he ran
with had a string on him. Once when Billy got in
trouble, a policeman said to me that he was a good
kid but he was easily led. You could see that
right away when you watched him with other kids.
Appendix I.
10
Tragically, the direction into which these people led
Billy was negative. Roy Charles introduced Billy to heroin
and before long he was heavily involved in shooting up heroin
and in taking a variety of other street and prescription
drugs. See Appendix L; Appendix J. The other direction into
which Billy was led was criminal activity. Gradually Billy
was transformed from a meek, frightened teenager into a person
who was not afraid to break into houses, steal property, and
commit robberies. Henry Wyatt explained the process by which
Billy's more able protectors changed him:
When Billy started hanging around us he was real
scared and timid. We told him that he would have
to change. We taught him how to steal. We would
get him to do things that were wrong by telling him
that he was a coward if he didn't, and that he
could only be in our gang if he showed us that he
had courage. This was like a toughening process
that we put Billy through. We could persuade him
to do these things because he was easily misled.
Appendix J.
The other pervasive pattern in Billy's life that is a
direct consequence of his mental retardation is the tremendous
difficulty he had in translating concepts into practice. As
Professor Luckasson explained, "[o]ne of the most dramatic
aspects of mental retardation is the limited ability to
generalize what is 'learned' at the conceptual level into day
to day activities and decisions." Appendix B, at 9. It is
this. limitation that also had pervasive effects in Billy's
daily life. It was. manifested in three ways.
il
First, Billy had great difficulty in carrying out verbal
instructions. No one could successfully tell Billy what to do
in any particular situation. He had to be shown what to do.
Appendix E; Appendix F.
Second, even showing Billy what to do would frequently
fail if the more able person failed to exercise constant
supervision. As his Aunt Nina explained,
Billy would try hard to do the things he was asked
to do, but if someone didn't stay right there and
tell him how to do it, he might do it wrong. For
example, if I asked him to dig a wide ditch for the
garden and left him alone, I could expect him to
dig it deep instead of wide. In order to be sure
Billy did things right, you just had to show him
everything.
Appendix I. This limitation affected almost everything Billy
did, causing him to lose the only two jobs he had. See
Appendix M (affidavit of Rockeeler Scott) (describing Billy's
inability to learn how to shift the gears of a dump truck
despite direct supervision and his inability to learn how to
operate a dishwashing machine despite direct supervision).
Moreover, it caused people like Henry Wyatt to limit Billy's
role in criminal episodes to avoid any unwanted turns of
events:
I also watched out for Billy. I knew he was slow
so I never trusted giving him a pistol because I
knew that he could have had an accident with it.
Appendix I.
While Billy White's life has been severely circumscribed
12
by his mental retardation, he remains a complex human being
like any other human being. As Professor Luckasson has
cautioned, there is "[a] risk in attempting to describe the
disabilities and their impact on [Mr. White's] life that [one]
might inadvertently stereotype him as a mentally retarded
person, rather than fully describe his uniqueness as a complex
person who has mental retardation. Mental retardation is a
serious disability, and it affects every dimension of Billy's
life. He has, however, other attributes and characteristics
that make him Billy White." Appendix B, at 10.
To all who know Billy White, his most’ striking
characteristics beyond mental retardation are his sweetness of
spirit, his kindness, and his generosity. He is remembered as
a father who "loved [his son] Kevin Charles to death” and
"would take him riding with him in his car, and would take him
to the park." Appendix M. Coreida Baines remembers Billy "as
a sweet person who was easy to get along with... " Bopendix H.
His unstinting generosity was, however, what singled him- out
from most other people. His friend Oscar Domino explained:
Billy was the kind of person who would give you the
last cent he had if you needed it or even if you
just asked for it. There was nothing you could ask
for that Billy wouldn't give you.
Appendix N (affidavit of Oscar Domino). Even though Billy
obtained much of his money from stealing others' property, he
"would use the money that he got to help his family, which was
13
very poor. He was always very generous and kind, and he still
is today." Appendix K. And finally, Billy's’ grandmother,
Lennie Bell White, spoke for many when she said,
I am praying for Billy's life to be spared because
he has always had a good heart. When other kids
had nothing, Billy would always share with them the
little bit he had.
Appendix F.
€. How Mr. White's Mental Retardation was
Related to the Crime
Ts The State's evidence at the guilt phase of the
trial
On August 23, 1976, at approximately 6:00 p.m., Martha
Laura Spinks was killed by a single shot from a .38 caliber
gun in the office of the furniture store owned and operated by
her and her husband, Alge Spinks. Ms. Spinks was shot during
the course of an incident involving Billy White.
The only witness to testify about the incident in the
store was Mr. Spinks. He testified that Mr. White entered the
store just before 6:00 p.m. on August 23, as the store was
about to close. T. 147, 156.* After looking at several items,
Mr.. White decided to purchase two lamps. T. 157. Mr. White,
Mr. Spinks, and Ms. Spinks gathered in the internal office of
the store to complete the sale, id., and as this was taking
2ur" refers to the transcript of the trial. The page
re references are to the internal numbering of Volume VI of the
trial record.
place, Mr. White pulled out a gun and told the Spinks to give
him their money. T. 157-58. After Mr. Spinks gave Mr. White
the $250-260 of receipts from that day, Mr. White suddenly
"reached over and shot [Mr. Spinks'] wife." T. 159. Mr.
Spinks was not looking at his wife when the shot was fired,
and he heard nothing from her beforehand. T. 162. Mr. White
thereafter ordered Mr. Spinks to lay on the floor and began to
remove Ms. Spinks' watch and jewelry. 1.164. He placed the
gun on the floor and put his foot on it while he did this. T.
164-65. Mr. Spinks then grabbed the gun, a struggle ensued
for the gun, and during the struggle Mr. Spinks was able to
fire the gun twice. T. 165-66. When it would no longer fire,
Mr. Spinks ran outside and hid, T. 167, and Mr. White then
left the store and ran away on foot. T. 168.
Mr. White was caught shortly thereafter several blocks
away with a .38 caliber gun in his waistband, T. 83-85, was
brought back to the store, and was identified by Mr. Spinks,
T. 170, and by a person who was across the street from the
Spinks' store when this incident occurred and who saw Mr.
White leave the store after gunshots were heard, T.13-16. 36.
All the remaining evidence was provided by the law
enforcement officers who investigated the crime scene, the
medical examiner who conducted the autopsy, and the firearms
examiner who compared two bullets found in the store with
bullets test-fired. from Mr. White's gun. Crime scene
Ale;
investigators noted the presence of a ladies watch on the
floor of the office, T. 73-74, and recovered two bullets that
were apparently fired during the incident. T. 111-116. One
of the bullets was matched to Mr. White's gun, but the second
bullet, the one thought to be the fatal bullet, was too
damaged to allow comparison to Mr. White's gun. T. 126-40.
Ms. Spinks was killed by a gunshot wound through the face,
which passed through her body and severed her spinal cord. T.
43-44, The gun was approximately two inches from Ms. Spinks'
face when the fatal shot was fired. T. 44. Death was
instantaneous. T. 45.
Mr. White was taken to the emergency room of a local
hospital after he was identified by Mr. Spinks. T. 101-08.
He had been shot in the pelvic area during the struggle with
Mr. Spinks over the gun. Id. At the hospital, cash in the
amount of $269.62 was removed from Mr. White's pocket. T..
104,
No statement was ever obtained from Mr. White by the
police.
Bs The defense case in the guilt phase
The defense put on no evidence. Through cross-
examination of three state witnesses, however, the defense was
able to suggest the possibility that Ms. Spinks attempted to
spray, or sprayed, Mr. White with mace prior to being shot.
In the cross-examination of Officer Lynn, one of the
16
crime scene investigators, the defense initially raised this
possible occurrence:
Q. [DEFENSE COUNSEL] Do you recall seeing
anything that might have been mace or any kind
of a protective device that a person might use
that was under attack?
A. [OFFICER LYNN] I saw a small canister of what
could have been, yes, sir.
T. 80. Defense counsel asked no other questions, but on
redirect, the prosecutor clarified that the canister was found
"in the body of Ms. Spinks' hand..." T.80.
Mr. Spinks was also questioned about whether his wife
might have had a canister of mace and whether she might have
used it against Mr. White on cross-examination:
Q. Did you or your wife keep any kind of
protective devices around?
A. I did not. There was some a year or two
before that I had heard about. I did not keep
anything around there, not even a gun.
a Are you familiar with mace?
7 No, sir. I have heard of it.
Q
A
Q. Do you know what it does when it's fired?
A. It's supposed to blind you for a few seconds?
Q
2 Do you know, does it have any peculiar odor or
smell?
Ag I don't know, sir.
Qs Did you know of any mace that was fired at the
time of this robbery?
As No, sir.
of
Q. Did you see a can of mace in your wife's hand?
A. I did not, no, sir.
T. 175-76. Mr. Spinks' carefully qualified answers to these
questions plainly did not rule out the possibility that Ms.
Spinks had used or attempted to use mace against Mr. White.
Finally, in the cross-examination of Mack Alford, the
person who was across the street when this incident occurred
and who identified Mr. White as the person who ran from the
store, defense counsel elicited additional testimony relevant
to the question of whether mace was used. Mr. Alford observed
Mr. White in the back seat of a police car shortly after his
arrest, which was within twenty minutes of the time the
incident began. T. 36. When he saw Mr. White, he saw that
Mr. White was crying. T.38.
In closing argument, the defense argued that the state
had failed to prove that the murder was intentional, relying
in part on the evidence concerning the mace. T. 10-11.° The
theory was that Mr. White may have been sprayed with mace,
causing the gun to discharge accidentally into Ms. Spinks'
face. Id.
When both sides rested, the entire guilt-innocence
evidentiary phase of the trial had consumed only one day.
“The transcript reference here is to the internal pagination
of Volume VII of the record.
18
Bis The penalty phase of the trial
In the penalty phase, the state presented evidence of Mr.
White's participation in three prior offenses: a burglary in
1974 for which he was convicted and sentenced to probation, T.
33-34;4 a shoplifting incident in May, 1976, in which Mr.
White knocked down an older woman in his attempt to evade
arrest, T. 49-52; and a robbery earlier in the day on August
23, 1976--the same day on which Ms. Spinks was killed--of a
retail store, in which Mr. White robbed the clerk of her
jewelry, her purse, and an unspecified amount of cash from the
store's cash box, T. 63-68.°
The defense put on no evidence in the penalty phase.
In the closing argument, defense counsel described an
execution by electrocution. T. 81-86. He also explained to
the jury that he would have had no quarrel with the police had
they shot and killed Mr. White when he was arrested, because
he deserved it then. But since the Petitioner was not shot
then, he deserved to live. T. 78-79. No mention was made of
mace being sprayed by Ms. Spinks or the relationship of that
‘The transcript reference here is to the internal pagination
of Volume VII of the record.
“Mr. White had not been convicted of either of the 1976
offenses at the time of his capital murder trial.
19
evidence to the punishment issues.
Sometime during the penalty trial, Mr. White fell asleep
on counsel table and was snoring loudly, in front of the jury.
In final arguments, the prosecutor pointed to Mr. White, who
was still asleep, and told the jury that such behavior
demonstrated the degree of his remorse for the death of Mrs.
Spinks and his respect for the criminal justice system. T.
93-94, No objection was made to these remarks. Defense
counsel took no action to ameliorate the harmful effect of the
conduct and the prosecutor's remarks. The jury returned
affirmative answers to the two punishment issues in less than
30 minutes. See Docket Sheet, time notations, Volume I of the
Record at 64.
4. The areas of defense that were available and
substantial
Had Mr. White's defense lawyer undertaken a reasonable
investigation of his client's life, of his client's version of
what occurred, and of the evidence collected by the crime
scene investigators, the trial of Mr. White would surely have
taken more than the day-and-a-half that it took in October,
1977. Moreover, the evidence that could have been presented
would have raised substantial questions about whether the
shooting of Ms. Spinks was intentional, and even if these
questions were resolved against Mr. White, whether he was
culpable enough to deserve a sentence of death.
20
The most important evidence omitted from the trial was
the evidence that Mr. White had mental retardation. Had the
jury known this and come to appreciate the effects of mental
retardation in Mr. White's life, it would have viewed Mr.
White as less culpable even if Mr. Spinks' version of the
crime was accepted without reservation.
What took place on the day of the crime was significantly
the product of other people's shaping of Billy White's
behavior. He was only nineteen years old when Ms. Spinks was
killed. He was fundamentally dependent upon people like Henry
Wyatt at that time in his life. Because of Billy's mental
retardation, people like Henry Wyatt and Roy Charles Baines
had been able to shape Billy in their image. He did not have
the internal capabilities necessary to question them or resist
their influences. Even if he could appreciate that the
criminal activities they led him into were wrong, his whole
life history revealed that he would have tremendous difficulty
changing his behavior.
Further, the chance that Billy would accidentally kill
someone in the course of an armed robbery was high. Unless
Billy was closely guided, he often failed to do what he set
out and intended to do. He dug ditches deeper or wider than
he intended, he failed to shift gears of a dump truck as he
intended, he failed to operate a dishwasher as he set out to
do. Henry Wyatt knew that Billy often made mistakes in what
21
he did, and so when he committed a crime with Billy, he
"watched out. for Billy." Appendix J. And he "never trusted
giving him a pistol because [Wyatt] knew that he could have
had an accident with it." Id. Had the jury known Billy as
Wyatt did, it too might have been convinced "that he could
never have killed anyone deliberately." Id.
Had defense counsel done his job in representing Billy
White, however, he would not have had only the fact of mental
retardation to present to the jury for its consideration. He
would have had more, much more, with which to question the
accuracy of the state's case.
The defense would have learned that Jesse Meyers
accompanied Billy to the Spinks’ store that day. The police
investigator confirmed this, and Billy told his lawyer this.
See Appendix Q. Moreover, Billy told his aunt, Vivian White,
this within a few hours after the incident occurred, and Ms.
White knew this independently from her own contact with Jesse
Meyers before and after the crime. See Appendix P (affidavit
of Vivian White). Meyers was known to the police as a heroin
addict and as a supplier of heroin. See Appendix O. Billy,
too, was known to the police as a heroin addict. Id. Several
of his friends could have confirmed the same thing. See
Appendices J, K, and L.
On the day of the shooting, Josetta Weathersby saw Jesse
Meyers driving Billy's car. Appendix K. Billy "was sprawled
22
out in the back seat asleep." Id. When she asked Meyers what
was wrong with Billy, she was told that he was "real high.”
Id.
After the shooting, the police who transported Billy to
the hospital observed "that Billy kept falling asleep, or
nodding out, in the car enroute to the hospital." Appendix 0.
Another officer observed that Billy was "sweating profusely.”
Both of these symptoms are consistent with heroin ingestion.
See Appendix T. Coupled with Billy's observed condition
earlier in the day, it is thus likely that Billy was under the
influence of heroin when he entered the Spinks' store at 6:00
Pp-m. on August 23.°
Having been accompanied to the store by Jesse Meyers, a
heroin addict and pusher, it is thus likely that Meyers had
something #6 do with what happened in the store that day.
Vulnerable to the influence and direction of people like
Meyers, sent into the store by Meyers without any direct
supervision--a situation too risky for Henry Wyatt to have
°The police account of Billy falling asleep in the car on
the way to the hospital, notwithstanding that he had been shot in
the abdomen, is remarkably similar to the account of Billy
falling asleep at his trial. It now appears that this occurred
at trial for the same reason--the ingestion of drugs. According
to Josetta Weathersby, "when Billy was in court on the murder
charge. Rockeeler [Scott] told me that she had slipped him some
pills while she was visiting him. This is what made Billy nod
off at trial." Appendix K. Thus, had defense counsel bothered
to investigate Billy's life, he would have learned about his drug
usage and been able to explain and ameliorate Billy's falling
asleep at trial.
23
found tolerable--and further impaired by the intake of heroin,
Billy was set up for the occurrence of an unintended tragedy.
There was still more evidence that defense counsel should
have discovered and presented. Long before trial, Billy told
his lawyer that Ms. Spinks had sprayed him with mace. See
Appendix Q. Indeed, Billy gave his Aunt Vivian this same
account just hours after the incident. Appendix P.
Nevertheless, defense counsel ignored this fact until trial.
When a police officer confirmed the possibility, the defense
was caught unprepared, never having made a specific pretrial
request for information concerning the macing, the defense had
no access to the actual canister recovered from Ms. Spinks!
body by the police. Whether it was mace and whether it had
been sprayed could have been determined by pretrial
investigation, but neither fact could be determined at trial.
Another avenue of documenting whether Billy had been sprayed
by mace--the anergeney room records--were also unexplored by
trial counsel.
Now, both pieces of evidence have been lost to scrutiny.
The canister has long since been misplaced, lost, or
destroyed, and the hospital records have been destroyed. Yet
Billy's contemporaneous account of what occurred, coupled with
the revelation at trial that a canister of what appeared to be
mace was found in Ms. Spinks' hand, seems far more than mere
coincidence. However, only now has it been revealed that
24
Billy has consistently maintained that he was sprayed with
mace by Ms. Spinks before the shooting occurred.
And finally, there is also evidence, also disclosed now
for the first time, that the crucial part of the episode may
not have occurred as Mr. Spinks remembered. The shooting may
not have occurred before the struggle for the gun. Just hours
after the incident, Billy told his Aunt Vivian that the
struggle for the gun began after he was sprayed with mace by
Ms. Spinks. The shooting of Ms. Spinks, he said, occurred in
the course of that struggle. See Appendix P. Obviously, if
that were the course of events, the shooting would not have
been found to be intentional.’ There is support for Billy's
account of events beyond Billy's own statements.
The crime scene photographs and the findings in the
autopsy raise the real possibility that Ms. Spinks herself was
involved in the struggle. The photographs of the body at the
crime scene reveal that Ms. Spinks' blouse was ripped and in
disarray when she fell to the floor. The autopsy protocol
reveals that two of Ms. Spinks' ribs were fractured. See
Appendix R. Neither of these facts was noted at trial.
"Even if the incident began as an attempted robbery, the
shooting would not have been found intentional if it occurred in
the course of a struggle for the gun. For this reason, the fact
that Billy committed a robbery on August 23 before the incident
at the Spinks' store, and that he may have intended to commit a
xobbery of the Spinks' store when he entered the store, would not
make the shooting of Ms. Spinks an intentional murder.
25
Obviously, they create an inference that Ms. Spinks was not
only shot during the struggle for the gun, but was actually a
part of the struggle.
Further, the initial police report, containing Mr.
Spinks' very first account of what occurred, is confused and
mistaken in some important details. He recounts that Billy
fired a second shot at Ms. Spinks--"at the back of the fallen
victim's head"--after she was dead. Appendix U. On the basis
of the autopsy protocol, no such shot was fired. In addition,
Mr. Spinks' contradictory accounts of where the sales receipts
were, and his confusion about whether the money was even
taken, See Appendix U, presents a picture of a confused and
disoriented man. In light of what had occurred, he had good
reason to be confused. However, his state of confusion says
more about what may have actually occurred than his clear and
consistent testimony at trial. Again, as with all the other
evidence highlighted here, there was no mention at trial of
the confused character of Mr. Spinks' initial account of the
crime.
For any or all of the foregoing reasons, it is manifest
that Billy White's trial was a sham. Lasting little more than
a day, dealing with none of the evidence about Mr. White's
life and disabilities that had obvious bearing on the crime
and his culpability for it, failing to explore in any
meaningful way the evidence that bore directly on whether Ms.
26
Spinks was killed accidentally during a struggle, Mr. White's
trial cannot engender confidence that reliable judgments were
made about his culpability. Clemency must be available for a
case like this, where the criminal justice process has failed
so miserably to provide a reliable vehicle for arriving at
true and just results.
D. The Billy White who was never revealed at
trial is a person of Immense value who
must not be put to death
As we have shown, Billy White's trial had nothing to do
with who he was. Billy's jury sentenced him to death without
knowing that he has mental retardation. The jury was not
given an opportunity to consider the barriers in Billy's path
because of his mental retardation or ene struggles that were
necessary to overcome them. The information presented above,
which could have been presented at Billy's trial, demonstrates
that had the full story of Billy's life been told to his jury,
he likely would not have been sentenced to death. But,
perhaps the best proof that death was not the appropriate
sentence for Billy, and that his trial resulted in an
incorrect and unjust sentence, is the picture of who Billy is
today. That picture shows us a human being who possesses
attributes which we are taught to value and which enhance the
quality of life for others. These attributes were apparent to
Professor Luckasson. during the several hours she spent with
27
Billy:
Mental retardation is a serious disability, and it
affects every dimension of Billy's life. He has,
however,.other attributes and characteristics that
make him Billy White. In my opinion, his most
striking characteristics beyond the mental
retardation. are his gentleness, kindness, and
generosity of spirit. Although his ability to
fully actualize that basic goodness is limited by
his deficient abilities -- to understand, express,
communicate and have logical understanding of cause
and effect or strategic problem solving -- I
believe the goodness is there. A striking example
of the way his true feelings surfaced through the
disability occurred as we discussed the incident
during the interview. He began crying in obvious
sorrow at the death of Mrs. Spinks and at the lost
years of being unable to reconcile in his own mind
or communicate effectively his understanding and
feelings about the actions that caused her death.
It is obvious, and he focused several times on the
terrible picture in his mind of the victim falling
dead, that her death remains of deepest trauma and
regret to him.
Appendix B, at 10-11.
The prison officers and guards who are in the best position to
know Billy describe him in the same way. They see Billy as a
"gentle, friendly person who gets along well with everyone.”
Appendix W, Exhibit A. They consistently remark that "Billy
treats people with respect, and is outgoing and friendly with
the officers and inmates." Id. Exhibit B. Billy has been on
death row for almost fourteen years, and he is known as a
person who has never caused any problems for the officers or
inmates. Appendix W, Exhibits A, B, and C. One officer
described Billy as "a model inmate in the prison.” Id.
Exhibit B.
28
The limited number of statements from prison officers
does not due justice to the respect and fondness prison staff
express for Billy White. It is more a reflection of the
difficulties we have had obtaining affidavits from prison
staff and the barriers erected by the prison officials when we
attempted to interview guards and officers in the extremely
limited time available to us. See Appendix W. Extemporaneous
statements made by prison staff when talking informally about
Billy are far more revealing of the depth and richness they
really see in Billy life. We recount some of those statements
here although we were unable to obtain them in written form.
Billy has been described to us as the unusual kind of
person "who treats everyone with that respect we all want to
be shown by other people.” One guard gave an example to
illustrate his high opinion of Billy. He said that if you
were in a large room full of prisoners and all the lights went
out and you had no protection, Billy White is the kind of
person who would see to it that no one harmed you.
There is a quality of simplicity and genuineness about
Billy that touches the depths of your heart when you talk to
him. It is a quality that is difficult to describe, but it
comes through in Billy's relationships with those around him
and is quickly seen by those who meet and talk with him. When
you know Billy, you know that it is this quality in him that
explains the tenderness and sadness in the voices of his
29
previous attorneys when they talk about his impending
execution.
Billy is a human being whose life is worth saving, but he
is also much more than that. Billy is a person who is worth
knowing. He is a person who gives you special insight into
that remarkable human spirit which enables a human being to
overcome limitations and hardships beyond his understanding
without developing bitterness or cynicism. Billy is
remarkable in his warmth, his gentleness, his respectfulness,
and his kindness. Billy's trial was remarkable in its failure
to provide his jury with the information necessary for a fair
and just response to his crime. Billy's appeals have been
remarkable in their failure to reveal the injustices of
Billy's trial. At this point, the Governor of the State of
Texas is the only hope Billy has that fairness and justice
will prevail in his case.
30
Conclusion
A. A Reprieve by the Governor Is Both Necessary and
Appropriate Under the Circumstances of this Case
Traditionally, clemency is considered after a prisoner
has reasonably exhausted available judicial remedies. Mr.
White has diligently pursued his judicial remedies. However,
his pending execution date was set at the same time the state
district court denied his state habeas application and before
Mr. White had been able to pursue any relief in the federal
courts. Although Mr. White filed his federal habeas appeal
promptly, the federal courts denied relief without staying his
imminent execution. For this reason, unless Mr. White is
granted a reprieve from the April 23 execution, neither the
Governor nor the Board of Pardon and Paroles will have
sufficient time to give his clemency petition full and fair
consideration.
Bs Previous Judicial Proceedings
The Texas Court of Criminal Appeals affirmed Mr. White's
conviction and sentence on September 23, 1981. White v.
State, 629 S.W.2d 701 (Tex. Crim. App. 1981). The Supreme
Court denied certiorari on April 19, 1982. Mr. White filed an
application for habeas relief in the Texas Court of Criminal
Appeals on October 30, 1984. In accordance with Texas law,
the application was referred to the trial court for a
resolution of factual issues. The trial court entered
31
findings of fact and conclusions of law on December 31, 1985.
For the next four years the case remained under consideration
in the Court of Criminal Appeals which eventually denied the
application in February 1990.
While the appeal was pending in the Court of Criminal
Appeals, the Supreme Court decided Penry v. Lynaugh, 469 U.S.
309 (1989). In Penry, the Supreme Court held that Texas death
penalty statute unconstitutionally prevented juries from
giving mitigating effect to certain kinds of evidence about a
defendant's background and character. In Penry, the jury was
prevented from considering Mr. Penry's evidence of mental
retardation and an abusive childhood. In March, 1990, the
Fifth Circuit Court of Appeals held that the Texas death
penalty statute, when applied without a special jury
instruction, unconstitutionally prevented capital juries from
considering youth as a mitigating factor. Graham _v. Collins,
896 F.2d 893 (5th Cir. 1990) (on remand from the Supreme
Court) rev'd on rehearing en banc F.2d (Sth Cir.
1992). Under the panel decision in Graham, Mr. White's death
sentence was unconstitutional because the Texas statute
prevented his jury from giving mitigating effect to his youth
at the time of his offense. Mr. White promptly filed his
second habeas application in state court based on the Supreme
Court's decision in Penry and the Fifth Circuit's decision in
32
Graham.?® on June 4, 1990, the Fifth: Circuit granted
rehearing en banc in Graham. On January 3, 1992, the en banc
court reversed the panel's decision in a split 7-6 decision.
That decision is now before the Supreme Court on Mr. Graham's
Petition for a Writ of Certiorari.
Mr. White's state habeas application remained under
consideration in the state court's pending rehearing in
Graham. Until the Fifth Circuit overturned the panel decision
in Graham, it appeared very probable that Mr. White's death
sentence would be vacated. In January 1992, less than a month
after the Fifth Circuit's en banc Graham decision, the state
trial court entered findings of fact and recommended that the
Court of Criminal Appeals deny Mr. White relief from his death
sentence. At the same time, the trial court scheduled Mr.
White's execution for April 23, 1992. Although a Petition for
Certiorari was yet to be considered in Graham, in February,
1992, the Court of Criminal Appeals denied Mr. White's state
habeas application.
°Mr. White's second state habeas application was filed in
state court in April, 1990. Mr. White was represented by Will
Gray in all of his habeas appeals.
33
On April 5, 1992, Mr. White, represented by Will Gray,
filed his first federal habeas petition in the United States
District Court for the Southern District of Texas. His habeas
petition presented a challenge to his death sentence based
upon Penry and the dissent in the Fifth Circuit's split
decision in Graham (now pending before the Supreme Court).
Mr. White also sought a stay of execution pending
consideration of his federal habeas appeals. The United
States District Court denied his petition on April 15, 1992 at
4:46 p.m.° Mr. White immediately gave notice of an appeal to
the Fifth Circuit and sought a stay of execution pending the
appeal. That appeal and Mr. White's request for a stay of
execution was denied in late afternoon on April 21, 1992.
c. Clemency Investigation
The NAACP Legal Defense Fund, Inc. became concerned about
this case when they learned that Mr. White, who is mentally
retarded, had been sentenced to death and was facing an
imminent execution without any consideration of his mental
retardation. Tragically, Mr. White's mental retardation was
never investigated during any of his previous appeals, despite
the fact that his mental impairment is evident from his
background and is documented in his elementary school records.
°The undersigned attorneys from the NAACP Legal Defense Fund
learned of the federal district court's denial of relief on April
16, 1992.
34
Although these school records, which were first obtained by
undersigned counsel on April 14, 1992, were available
throughout his appeals, they were never investigated by prior
counsel.
When the United States District Court denied Mr. White's
habeas petition late in the afternoon on April 15, it became
apparent that his April 23 execution would probably not be
stayed by the courts. On April 16, attorneys from the NAACP
Legal Defense Fund (LDF) traveled to Houston in order to
assist Mr. White in a request for clemency. On Friday, April
17, they began a full investigation into Mr. White's
background and mental retardation. They requested and received
the assistance of attorneys and staff with the Texas Resource
Center. At that time, less than five working days remained
before Mr. White's scheduled execution, and therefore it was
too late to request a reprieve from the Board of Pardon and
Parole Board. Over the next four days, which included a
holiday on Good Friday, Mr. White's attorneys worked around
the clock in order to present to the Board of Pardon and
Paroles and the Governor a complete picture of Mr. White's
background and his history of mental retardation. Their
investigation has revealed a compelling case for clemency.
However, there is not sufficient time for the Board of Pardon
and Paroles and the Governor to fully and fairly consider his
plea for clemency within the few hours left before his
35
execution. These circumstance not only warrant a reprieve by
the Governor, they demand it.
D. Request For Relief
On behalf of Billy White, we respectfully petition the
Texas Board of Pardon and Paroles for a recommendation to the
Honorable Ann Richards, Governor for the State of Texas, to
commute Billy White’s death sentence to life and that the
Board schedule a hearing to consider evidence and argument in
support of this petition.
We respectfully request that the Honorable Ann Richards,
Governor for the State of Texas, ask the Board of Pardons and
Paroles to consider Billy White's petition for a commutation
of his death sentence to life imprisonment and to grant our
request for a hearing. We further petition the Governor to
grant a reprieve from the April 23, 1992 execution in order
that Billy White's petition for a commutation can be fully and
fairly considered by her and by the Board of Pardon and
Paroles.
Respectfully submitted,
RICHARD H. BURR
STEVEN W. HAWKINS
NAACP Legal Defense and
Educational Fund
99 Hudson Street, 16th
Floor
New York, NY 10013
(212) 219-1900
36
EDEN HARRINGTON
Texas Bar No. 09048000
MANDY WELCH
Texas Resource Center
3223 Smith, Suite 215
Houston, TX 77006
(713) 522-5917
Counsel for Applicant
37
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing
was delivered to the Office of the Attorney General for the
State of Texas on April 22,
1992.
38
