Herrera, Leonel Torres, TX, Executed, 1991

N

BEFORE THE TEXAS BOARD OF PARDONS AND PAROLES
In Re
LEONEL TORRES HERRERA

- REQUEST FOR RECOMMENDATION TO THE GOVERNOR
FOR
_ NINETY (90) DAY REPRIEVE AND COMMUTATION
OF DEATH SENTENCE

Mark Evan Olive
Attorney at Law

= 2804 Glennis Court =
Tallahassee, FL 32304

] 904-644-7710

Florida Bar #0578533

Robert L. McGlasson
Attorney at Law

Texas Resource Center
1206 San Antonio
Austin, TX 78501
512-320-8300

Texas Bar #13634050

|

|

Phyllis L. Crocker

| Attorney at Law

/ Texas Resource Center
— 2 1206 San Antonio
Austin, TX 78501

| 512-320-8300

| Texas Bar #05087780

\
t
|
{
ERNIE HULSEY & ASSOCIATES

SUBJECT:

EXAMINATION
CRITERIA:

EXAMINATION
~ RESULTS:

DATED:

11907 Corona Lane

Houston, Texas 77072

Business Phone (713) 981-0294

Raul Herrera, Jr.

The following relevant questions were constructed
and administered. The subject’s verbal response follow each

question in quotations.

1,

At the time the D.P.S. Officer was shot, were you
in your Uncle Leo’s Cougar with your father?
"YES"

At the time the D.P.S. Officer was shot, was
Leonel Herrera in the Cougar with you and your
father? "NO"

Did you hear the shot that your father fired when
the D.P.S. Officer was shot? "YES"

When your father got back into the car after the
shot was fired, did he say words in Spanish that
meant he had shot the D.P.S. Officer? "YES"

Was your father driving the Cougar when the
second Police Officer stopped the car? "YES"

Did you see your father step out of the Cougar
with a pistol in his hand? "YES"

Did you actually see your father shoot the second
officer that stopped you? "YES"

Prior to the shooting, did your father leave your
Uncle Leonel at your grandmother’s house? "YES"

At the time the second police officer was shot,
was Leonel Herrera in the Cougar with you and
your father? "NO"

After careful analysis of the subject’s polygrams, it is this
examiner’s professional opinion that there was no significant
criteria indicative of deception. The subject was considered to
be truthful when he answered the above listed relevant

questions.

April 30, 1993
ERNIE HULSEY & ASSOCIATES

11907 Corona Lane
Houston, Texas 77072
Business Phone (713) 981-0294

SUBJECT: Norma Herrera Rodriguez

EXAMINATION _ The following relevant questions were constructed
CRITERIA: and administered. The subject’s verbal response follows each

question in quotations.

1. On the day the officers were shot, did Raul drop Leonel
off at your house in the late afternoon? "YES"

2. Was Leonel messed up and staggering when Raul left him
at your house? "YES"

3. Did Leonel pass out on your bed on the evening of the
shootings of the officers? "YES"

4. Did Raul drive off in Leonel’s car after leaving Leonel at
your house? "YES"

— 5. Was Leonel at your house from before dark until you took
him home at approximately 12:30 A.M. on the night the
officers were shot? "YES"

6. Did Raul come to your house on the night the officers
were shot and say to you, "Tell Leonel to take the
blame?" "YES"

7. Did Raul threaten you to keep you from saying that
Leonel was at your house when the officers were shot?

"YES"

8. Before the first trial was over, did Raul tell you it was
because of him and Chavello that Leonel was in jail?

| "YES"

EXAMINATION _ Evaluation of the subject’s polygrams failed to reveal any
RESULTS: criteria indicative of deception. In this examiner’s professional
opinion the subject was being truthful when she answered the

above listed relevant questions.

DATED: MAY 2, 1993

INTRODUCTION ee  S

III.

TABLE OF CONTENTS

I. THE STATE HAS PROMISED MR. HERRERA
AND THE UNITED STATES SUPREME COURT
THAT A MEANINGFUL CONSIDERATION OF
MR. HERRERA’S INNOCENCE WILL BE
PROVIDED IN THIS FORUM ..... ~

II. MR. HERRERA’S EVIDENCE OF
INNOCENCE, INCLUDING AN EXPERT
POLYGRAPHER’S OPINION THAT AN ALIBI
WITNESS AND A WITNESS TO THE CRIME
ARE BEING TRUTHFUL WHEN THEY SAY
MR. HERRERA WAS NOT AT THE SCENE,
DESERVES MEANINGFUL CONSIDERATION .

A. The Expert is Unimpeachable .

B. ‘The Eyewitness is Telling —
the Truth--His Father
Killed the Officers .....

c. The Alibi Witness is
Telling the Truth--Raul,
Sr., was in Leonel’s Car,
and Leonel Was at Her
Home . 1 2 ee ee ee ew ew ee

D. The Persons to Whom Raul

Confessed are telling the Truth .

1. Antonio Rivera (took
polygraph) .....-2.+-ee-e.

2. Jessie Gomez (took polygraph) . .

3. Raul, Sr.’s, Attorney... ..
4. Three Others Persons .... .-

DOUBT ABOUT GUILT IS THE QUINTESSENTIAL
CLEMENCY CONCERN, AND THE MOST PROCESS
POSSIBLE SHOULD BE AFFORDED THE POSSIBLY

INNOCENT . + + 2 ee ee ee ee ee

2
INTRODUCTION

Leonel Herrera is scheduled to be executed by the State of
Texas on May 12, 1993. He requests that the members of this
Honorable Board recommend that the Governor of the State of Texas
grant a reprieve to remain in effect for at least ninety (90)
days, and/or that the Governor grant a commutation of sentence.!
The bases for Mr. Herrera’s request include:

1.) there are serious and ever growing doubts about his
guilt;

2.) Texas state courts cannot hear new evidence of
innocence presented over thirty (30) days after a conviction, and
as a result of a 1993 United States Supreme Court decision in Mr.
Herrera’s case no federal court can grant a reprieve from
execution, notwithstanding such later presented yet compelling

evidence of innocence;

3.) this Board and the Governor now share the sole and
heavy burden of implementing a policy which provides the best
humanly possible chance that Texas will not execute a person
simply because compelling evidence of innocence came more than

thirty (30) days after his or her trial.

‘By letter dated May 4, 1993, counsel presented the Board
with a request for such recommendations to the Governor. That
letter is reproduced at Appendix 23. As promised in that letter,
and as permitted by representatives of the Board, the instant
submission supplements the May 4, 1993, request.

On February 18, 1992, Mr. Herrera also filed an application
for a reprieve with the Governor. That application has not been
acted upon, and it too will be supplemented immediately with the

new information presented here.
{

The State of Texas has no interest in executing the wrong
man. Mr. Herrera believes that this Board and the Governor are
prepared to study, determine, and require the type of proceedings
which ought to be conducted to best avert such an injustice.” ft
would be a cruel irony, especially given the most recent
polygraph evidence of Mr. Herrera’s innocence, if he, the person
whose case could be most responsible for imminent commutation
reform in Texas, became simply a vestige of a flawed and
jettisoned clemency commutation process.

I. THE STATE HAS PROMISED MR. HERRERA AND THE

UNITED STATES SUPREME COURT THAT A MEANINGFUL

CONSIDERATION OF MR. HERRERA’S INNOCENCE WILL
BE PROVIDED IN THIS FORUM

Last year Leonel Herrera presented evidence in federal court
that he was innocent of the offense for which he is scheduled to
be executed. That evidence included the eyewitness account of
the actual killer’s son, and the confessions from the actual
killer to his lawyer and to other associates. A federal district
court judge, Judge Ricardo H. Hinojosa, entered an order staying
the Applicant’s execution in order to allow consideration of the
evidence.

The State of Texas appealed, and the United States Court of
Appeals for the Fifth Circuit vacated the district court judge’s

order. Mr. Herrera sought review in the United States Supreme

2Pprominent members of the bar have recommended that the
commutation process in capital cases be revamped. See Appendix 1
(May 5, 1993, letter to Governor Ann Richards and Chairman Kyle
from Gabrielle McDonald, Harley Clark, Bill Whitehurst, and Steve

Martin).
Court and that Court agreed to determine whether newly presented
evidence of innocence could provide a basis for federal habeas
corpus relief.

Before the Supreme Court, the State of Texas argued that
neither state nor federal law provided a forum for Mr. Herrera’s
evidence of innocence, and that "executive clemency is the
appropriate vehicle to achieve justice where doubt as to guilt
cannot result in reversal or new trial under existing legal
standards." Respondent’s brief, Herrera v. Collins, No. 91-7328,

at iii. The Supreme Court embraced the State’s contentions that
clemency was the appropriate response to evidence of innocence
presented after a conviction: while "(i]t is an unalterable fact
that our judicial system, like the human beings who administer
it, is fallible," Herrera v. Collins, 113 S.Ct. 853, 868 (1993),
"[ejlemency ... is the historic remedy for preventing
miscarriages of justice where judicial process has been
exhausted.... Executive clemency has provided the ‘fail safe’ in
our criminal justice system," errera, supra, 113 S.Ct. 866,
868, for innocent persons.

In Herrera, the State promised that clemency would provide a
safety net. Now Mr. Herrera is before the Board and the
Governor, where the State of Texas and the Supreme Court directed
him to seek "justice." He seeks what the State promised the
United States Supreme Court and Mr. Herrera was available--an
"encumbered", "({ujnconstrained", "non-judicial" remedy "to

satisfy the intuition that judicial norms may not always suffice
in fixing a punishment as difficult as death.’" Respondent’s

brief, Herrera v. Collins, No. 91-7328, at 32. Indeed, the State
has promised that the Texas clemency process would allow
consideration of any hearsay evidence presented by Mr. Herrera,
id., that Mr. Herrera "would benefit from the fact that the
decision to grant clemency is not subject to review," and that

here was where an innocent person would receive unfettered

relief, "for virtually any reason at all." Id.
II. MR. HERRERA’S EVIDENCE OF INNOCENCE,
INCLUDING AN EXPERT POLYGRAPHER’S OPINION
THAT AN ALIBI WITNESS AND A WITNESS TO THE
CRIME ARE BEING TRUTHFUL WHEN THEY SAY MR.
HERRERA WAS NOT AT THE SCENE, DESERVES
MEANINGFUL CONSIDERATION

The offense for which Mr. Herrera is scheduled to be

executed occurred on September 29, 1981. On that date, two law

enforcement officers were shot within several minutes of each
other. Department of Public Safety Officer David Rucker was shot
and killed on FM 100 between Los Fresnos and Port Isabel, Texas.
Los Fresnos Police Officer Enrique Carrisalez was shot thereafter
when he stopped a car for speeding just outside of Los Fresnos.
Office Carrisalez died nine days later.

The post-conviction evidence which the State successfully
argued that the courts could not consider in Herrera included:

1. the affidavit and proffered testimony of the actual
killer’s son, an eyewitness to the crimes;> ,

2. the affidavit and proffered testimony of an attorney,

3See Appendix Items 4 and 5.
4

and several other persons, who swear that the real culprit, Raul

Herrera, Sr., confessed his guilt to them.‘

Mr. Herrera presents that testimony here, but, more
importantly, Mr. Herrera presents other-new and compelling
evidence. Specifically, Mr. Herrera presents the sworn statement

of an alibi witness, and the sworn statements of two additional

persons to whom the real murderer confessed.

But most important of all, Mr. Herrera presents evidence

that should deeply trouble the State of Texas--the expert opinion
a 1 b. er S tnes: &

eye’ and _ the om ea le: es:

are all being truthful.

A. The Expert is Unimpeachable

Mr. Herrera chose a respected and credentialed expert to

examine the witnesses in this case. The expert’s affidavit
contains the following information about his background and

expertise:

1. My name is Ernie Hulsey, and I am a
resident of Harris County, Texas,:am over the
age of eighteen, and am competent to give
this affidavit..

2. I ama licensed polygraph examiner
in the State of Texas, and have been licensed

since 1973. am_ current] Chi oO:
the State of Texas P. bat aminers Board
hich is the state’ cens. a ci
agency for polygraph examiners. I was

appointed to the Board by Governor Bill
Clements in 1989.

3. I have had extensive experience in

‘See Appendix Items 12, 14, and 15.
5

law enforcement, both as a trooper with the
Texas Department of Public Safety, and as a
consultant to and contractor with law
enforcement agencies and organizations
throughout the State of Texas. I graduated
rom the as De c Safe’

tees

with the Department. Ta 1972, while employed
with the Department of Public Safety, I
graduated from the Texas A & M University
Police Polygraph School, and from 1972

through 197 was _a Department
afet: e a io} ‘a a
Houston, Texas.

4. After I left the Department of
Public Safety and went into private practice,

a onducte mer ou: 10.
examinations for and consulted with the

Department of Public Safety and many other
law enforcement agencies throughout Texas.

For example, at the present time T am on
contract with the Harris County Sheriff's
1 t: uc: 1. bat

or +) r i ave _also co: ct

x. for, amon thers, th exas

ey General’s off ny other sta’

1 e rcement. 2! Ss

heri. d_police departments th: ut.

state. In that capacity I have conducted
many such examinations. In total I have
conducted over 35,000 examinations, involving
murder, robbery, rape, arson, burglary, and
numerous other criminal offenses. I have
also been an instructor at both the Texas A &
M Police Polygraph School and the University
of Houston Polygraph School. I was the
director of the University of Houston School
from 1986 through 1989.

: 5. I conducted the polygraph examinations on
the following persons on the indicated dates:

Raul Herrera, Jr., April 30, 1993
! Jesse Gomez, May 2, 1993
i Norma Herrera, May 2, 1993
i Antonio Rivera, May 2, 1992

‘The two victims in this case were police officers, one a
Department of Public Safety officer and one a Los Fresnos Police

Officer.

See Appendix 2.

B. The Eyewitness is Telling the Truth--His
Father Killed the Officers

Raul Herrera, Jr., has sworn that it was his father, not
Leonel Herrera, who killed the police officers in this case. His
detailed statements in this regard are set out completely at
Appendix items 4 and 5.

The expert polygrapher found Raul, Jr., to be truthful. In
his report, the expert explains:

POLYGRAPH EXAMINATION REPORT

SUBJECT: Raul Herrera, Jr.; AGE: 21; DOB: 11/04/71;
Born in McAllen, Texas

CLIENT: Mr. Robert McGlasson
Mr. Mark Olive
Attorneys at Law

EXAMINATION The Balanced Flexibility Technique was utilized on

wai) METHOD: each test chart. Three test charts were
administered.
STATEMENT The case information was submitted by attorney,
OF FACT: Robert McGlasson.

According to the case information submitted, on
September 29, 1981, Texas State Trooper, David
Rucker and Los Fresnos Police Officer Enrique
Carrisalez were shot and killed during two
different confrontations with, apparently, the
same gunman while on traffic stops. The person
accused of the two murders was Leonel Herrera.
Herrera was convicted of both murders.

Through their investigation, attorneys for Leonel
Herrera obtained information implicating Raul
Herrera, Sr., Leonel’s brother, as the actual
murderer. Evidence revealed by the investigation
showed that Leonel Herrera was left at his
mother’s house passed out while Raul Herrera, Sr.,

‘This expert’s resume is submitted with his affidavit at
Appendix 2.

EXAMINATION
ce CRITERIA:

Chavello Lopez and Raul Herrera, Jr., who was
approximately 9 years and 10 months old at the
time, left in Leonel Herrera’s Cougar. The
information reflected that, before his death in
1984, Raul Herrera, Sr., told several people that
it was he and not Leonel who had killed the

officers. :

The polygraph subject, Raul Herrera, Jr., is now
stating he was with his father in the Cougar with
Chavello Lopez and his father in fact got out of
the car to talk to the D.P.S. Trooper and after
firing a shot got back into the car and said, in
Spanish, words that meant he had shot the officer.

After driving into Los Fresnos he was stopped by a
Police Officer and after opening the door turned
and shot the officer. Raul, Jr. stated he saw his
father step out of the car with a gun and fire the
shot that killed the Los Fresnos Officer.

The subject was being questioned on the polygraph
to determine his truthfulness on the statements he

made.

The following relevant questions were constructed
and administered. The subject’s verbal response
follow each question in quotations.

1. At the time the D.P.S. Officer was shot,
were you in your Uncle Leo’s Cougar with
your father? "YES"

2. At the time the D.P.S. Officer was shot,
was Leonel Herrera in the Cougar with
you and your father? "NO"

3. Did you hear the shot that your father
fired when the D.P.S. Officer was shot?

"yES"

4. When your father got back into the car
after the shot was fired, did he say
words in Spanish that meant he had shot
the D.P.S. Officer? "YES"

5. Was your father driving the Cougar when
the second Police Officer stopped the
car? "YES"

6. Did you see your father step out of the
Cougar with a pistol in his hand? . "YES"

8
7. Did you actually see your father shoot
the second officer that stopped you?
"YES"

8. Prior to the shooting, did your father
leave your Uncle Leonel at your
grandmother’s house? "YES"

9. At the time the second police officer

was shot, was Leonel Herrera in the
Cougar with you and your father? "No"

EXAMINATION After careful analysis of the subject’s polygrams,
it is this examiner’s professional opinion that
there was no significant criteria indicative of
deception. The subject was considered to be
truthful when he answered the above listed
relevant questions.

Appendix 3.
c. The Alibi Witness is Telling the
Truth--Raul, Sr., was in Leonel’s
Car, and Leonel Was at her Home
Leonel Herrera did not present an alibi witness to the
federal courts. There is one; she is telling the truth.’
According to Norma Herrera Rodriguez, she saw both Leonel
and Raul, Sr., on the night of the offense. Leonel was asleep in
her bed; Raul was in Leonel’s car. Her affidavit details what
happened, see Appendix 7, and the expert polygrapher asked her

all about it:

SUBJECT: Norma Herrera Rodriguez; AGE: 40; DOB:
10/26/53; Born in McAllen, Texas
CLIENT: Robert McGlasson
Mark Olive

Attorneys at Law
EXAMINATION The Balanced Flexibility Technique was utilized on

This witness has not previously sworn to this alibi for
Leonel Herrera because she has been threatened and coerced into

silence. Appendix 7.

METHOD:

STATEMENT
OF FACT:

the examination.

This examination was given as part of an
investigation in the Leonel Herrera case. Other

background information is provided in other
reports submitted by this examiner.

The subject was being examined to determine her
truthfulness concerning her statements. According
to the case information submitted, the subject was
home the evening of the shootings of the police
officers. Her statement reflected that Raul
Herrera, Sr. had brought Leonel to her house on
that evening before dark and that she had taken
Leonel to his house about 12:30 A.M.

During the pre-test phase of the interview the
polygraph subject stated on the day of the
shootings she was home getting ready to go to a
concert. She stated Raul Herrera, Sr. drove up in
Leonel’s Cougar and let Leonel out. She stated
Leonel was visibly messed up and staggering. She
could see he had blood on his shirt and she jumped
him about his condition. She stated he told her
he didn’t want to hear it and went into the house
to lay down. She stated she followed him into the
house and Raul Herrera, Sr. drove off. She could
see someone else in the car, but couldn’t see who

it was.

The polygraph subject then related that Leonel
went into her bedroom and passed out on the bed.
Her date cancelled so she stayed home. She
remembered the baby sitter came and stayed for a
little while.

The polygraph subject then stated that sometime
around midnight, or a little after, Raul Herrera,
Sr. came to the door with someone else and told
her to tell Leonel to take the blame. Raul
Herrera, Sr. then left quickly. She said Leonel
came to the bedroom door and asked "What did he
say," and she told him. Leonel told her to take
him home. She stated Leonel talked to his wife on
the phone before they left and then she took him

home.
The polygraph subject then stated when they

arrived at Leonel’s house his wife said to him
that he was to take the blame and then Leonel ran

away.

10
se!

EXAMINATION
CRITERIA:

EXAMINATION
RESULTS:

Appendix 6.

The polygraph subject then stated Leonel couldn’t
have killed the officers because he was with her
and her mother. She also stated Raul Herrera, Sr.
threatened her to keep her quiet about what she
knew. Raul Herrera, Sr. told her he would get

Leonel out.

The following relevant questions were constructed
anda administered. The subject’s verbal response
follows each question in quotations.

1. On the day the officers were shot, did Raul
drop Leonel off at your house in the late
afternoon? "YES"

2. Was Leonel messed up and staggering when Raul
left him at your house? "YES"

3. Did Leonel pass out on your bed on the
evening of the shootings of the officers?

"tyRs"

4. Did Raul drive off in Leonel’s car after
leaving Leonel at your house? "YES"

5. Was Leonel at your house from before dark
until you took him home at approximately
12:30 A.M. on the night the officers were
shot? "YES"

6. Did Raul come to your house on the night the
officers were shot and say to you, "Tell
Leonel to take the blame?" "YES"

7. Did Raul threaten you to keep you from saying
that Leonel was at your house when the
officers were shot? "YES"

8. Before the first trial was over, did Raul
tell you it was because of him and Chavello
that Leonel was in jail? "YES"

Evaluation of the subject’s polygrams failed to
reveal any criteria indicative of deception.. In

this examiner’s professional opinion the subject
was being truthful when she answered the above

ste Va. uestions.

11
The Persons to Whom Raul Confessed are
telling the Truth

1. Antonio Rivera (took
polygraph)

In addition te the above information which was not. presented

to and cannot be considered by the courts, the following new

evidence has been uncovered. Before Leonel Herrera was arrested,

Raul Herrera, Sr., confessed to Antonio Rivera. Antonio Rivera

has truthfully recounted that conversation:

SUBJECT:

CLIENT:

EXAMINATION
METHOD:

STATEMENT
OF FACT:

EXAMINATION
CRITERIA:

POLYGRAPH EXAMINATION REPORT

Antonio Rivera; AGE: 73; DOB: 08/03/19;
Born in Quaquilla, Mexico

Mr. Robert McGlasson
Mr. Mark Olive
Attorneys at Law

The Balanced Flexibility Technique was utilized on
the examination.

This examination was given as part of an
investigation in the Leonel Herrera case. Other
background information is provided in other
reports submitted by this examiner.

According to the case information submitted, the
polygraph subject had stated that Raul Herrera,
Sr. came by to see him a day: or two before Leonel
was arrested. He stated Raul Herrera, Sr. was
upset and stated, "Dummy Leonel got the blame for
shooting the two officers." The polygraph subject
then stated Raul Herrera, Sr. told him he was the
one who shot the two officers. The polygraph
subject stated he had not heard about the shooting
at that time, however he told Raul Herrera, Sr. he
should get an attorney because they would be after

him.

At that time the examination was constructed and
administered. Each relevant question asked is
listed below, along with the subject’s verbal

response.

12
1. Are you going to answer with the truth on
each question? "YES"

2. Before Leonel was arrested for shooting the
officers, did Raul come by your house? "YES"

3. At that time, did Ravi tell you that he was
the one who killed the two officers? "YES"

4. Did Raul tell you, "Dummy Leonel got the
blame for shooting the two officers?" "YES"

5. Did you make up any of this information?
"NO"

6. Are you lying when you say Raul told you he
shot the officers? "No"

EXAMINATION After careful analysis cf the subject’s polygrams,
RESULTS: it is this examiner’s professional opinion that
there was no significant criteria indicative of
deception. The subject was considered to be
truthful when he answered the above listed

relevant questions.
Appendix 8. Mr. Rivera provides more detail about this
conversation in his recently provided affidavit. Appendix 9.
2. Jessie Gomez (took polygraph)
Raul, Jr., also confessed to Jessie Gomez, before Leonel
went to trial. Mr. Gomez has truthfully reported that

confession, according to Mr. Hulsey:.
POLYGRAPH EXAMINATION REPORT

SUBJECT: Jessie Gomez; AGE: 29; DOB: 01/31/64; Born in
Raymondville, Texas

CLIENT: Robert McGlasson
Mark Olive

Attorneys at Law

EXAMINATION The Balanced Flexibility Technique was utilized on
METHOD: the examination.

‘STATEMENT This examination was given as part of an

OF FACT: investigation in the Leonel Herrera case. Other
background information is provided in other

13
EXAMINATION
CRITERIA:

EXAMINATION
RESULTS:

reports submitted by this examiner.

According to the case information submitted, the
polygraph subject had stated that Raul Herrera,
Sr., told him, prior to Leonel’s trial, that he,
Raul Herrera, Sr. had been the one who killed the
two officers and not Leonel.

The subject was being examined to determine his
truthfulness about the issue.

During the pre-test phase of the interview the
subject stated that Raul Herrera, Sr. had come
over to his home sometime prior to Leonel’s trial.
He stated he and Raul Herrera, Sr. went out to the
orchard to talk. Raul Herrera, Sr. was upset and
told him that Leonel shouldn’t be in jail because
he didn’t kill the two officers. The polygraph
subject then stated that Raul Herrera, Sr. told
him he was in Leonel’s car and after shooting the
officers threw the gun in a canal.

At that time the examination was constructed and
administered. Each relevant question asked is
listed below, along with the subject’s verbal

response.

1. Are you going to answer each question on this
test with the truth? "YES"

2. Did Raul Herrera, Sr. actually tell you that
Leonel shouldn’t be in jail, because he
didn’t kill the two officers? "YES"

3. Did Raul Herrera, Sr. actually tell you he,
himself had killed the two officers while in

Leonel‘’s car? "YES"

4. Did Raul Herrera, Sr. then tell you he had
thrown the gun in a canal? "YES"

5. Did Raul Herrera, Sr. tell you this prior to
Leonel’s trial? "YES" —

6. Did you make up any of the information that
you put in the affidavit you signed? "No"

7. Did you tell the complete truth in the
affidavit you signed? "YES"

After careful analysis of the subject’s polygrams,
it is this examiner’s professional opinion that

14
there was no significant criteria indicative of
deception. The subject was considered to be
truthful when he answered the above listed
relevant questions.

Appendix 10.
3. Raul, Sr.’s, Attorney

Raul Herrera, Sr., told his attorney that he was the person

who killed the police officers. In his affidavit, Mr. Villarreal

swears:

My name is Hector J. Villarreal. I am
an attorney licensed to practice in the State
of Texas. My address is 400 East Cano,
Edinburg, Texas.

In 1984 I represented Raul Herrera, one of
Leonel Herrera’s brothers, on a charge of
attempted murder. When I began representing
Raul, he was being held in the Hidalgo County
dail on this charge. I obtained Raul’s
release on a $25,000 personal recognizance
bond from Judge John Domingus.

Shortly after Raul was released from the
Hidalgo County Jail, we met in Edinburg to
discuss preparing for trial. In the course
of that meeting Raul confessed to me that he,
not Leonel, had killed Officers Rucker and

Carrisalez.

In previous conversations with Raul I had
been told that Raul, Leonel, and their
father, Jose Herrera, were in the drug
trafficking business with the Sheriff of
Hidalgo County, Brigido Marmolejo. Raul and
Jose were money collectors, and Leonel was a
"cutter." As a cutter, Leonel’s job was to
cut the pure cocaine with filler in
preparation for selling it. Leonel always cut
the cocaine on South Padre Island. According
to Raul, David Rucker, the D.P.S. officer who
was killed, was also involved with the drug
trafficking business: his job was to act as
security for the operation. Every time
Leonel went to the Island, Rucker met him and
gave him coveralls to wear while he was
cutting the cocaine. Part of Rucker’s job

15
was to check the coveralls to insure that
Leonel did not take any cocaine.

Raul told me that on September 29, 1981,
Leonel was supposed to have gone to South
Padre Island to cut cocaine. The plan was
that he would drive there with a drug dealer.
from the East Coast, cut the cocaine and
return, as he had done in the past. However,
the night before, Leonel had gotten very
"coked up." That morning his nose was
bleeding badly and he was in no condition to
drive to the Island. Raul went in his place.
Rucker was not pleased with the switch -- he
did not know Raul and was used to working
with Leonel. Raul and Rucker had a harsh
argument about the switch and the deal did
not go down because of it. When Raul and the
East Coast dealer were on the way back from
the Island, Rucker pulled them over on FM
100. Another argument ensued and Raul shot
Rucker. Shortly thereafter, Raul shot
Officer Carrisalez when he was stopped for

speeding.

Raul told me that he drove Leonel’s car to
the Island. He had his own set of keys to
the car because he and Leonel had keys to
each other’s cars. Leo always kept his
identification (Social Security card) in the

car.

Raul did not say anything about this
before Leonel was convicted because he
thought Leonel would be acquitted. However,
Raul told me that when Leonel was: convicted
and sentenced to death, Raul began
blackmailing Sheriff Marmolejo. According to
Raul, Sheriff Marmolejo knew that Raul killed
the two officers and that D.P.S. Officer
Rucker was working in the drug trade because
both Raul and Rucker worked for him. While
Raul was in jail on the attempted murder
charge in 1984 he began threatening to "spill
the beans" on the Sheriff if he did not
receive money from him. After he was
released, he said he wanted more money or he
would "come clean" on what had really
happened with the police killings.

After Raul was released from jail, he was
out for several weeks. Then, on September 8,

16
1984, the Saturday before the attempted
murder trial was to begin, he was shot in the
back of the neck and killed by Jose Isabel
Lopez. Lopez was charged with murder, pled
guilty to manslaughter and received a ten
year probated sentence. It is my
understanding that Lopez worked for Sheriff
Marmolejo in the drug trafficking business
and that Raul was killed for threatening to
talk about the killing of the two officers.

Appendix 12.

4. Three Others Persons

Raul, Sr., also confessed to at least three other persons,

Adan Alaniz,’ Juan Franco Palacious,® and Jose Ybarra, Jr.'°

‘Mr. Alaniz’ affidavit is contained at Appendix 13. His
affidavit has never been presented to the courts. He states:

1. My name is Adan Alaniz, and I am over
the age of eighteen and am competent to give
this statement. I am a resident of Edinburg,
Hidalgo County, Texas. I own an auto body
shop here, which I have owned since 1975.

2. I know Raul Herrera, the brother of
Leonel Herrera, who is on death row for the
killing of two Cameron County police
officers. I first met Raul when were still
kids, about 1966, at the local golden gloves
boxing club. I was a friend of his and saw
him regularly until he was killed. I also
knew Leonel, but I never spent much time with

hin.

3. After the crime involving the two police
officers in Los Fresnos, a few months before
Raul was killed, I was with him on several
occasions when he spoke to me about these
killings. One time we were driving around
together in my car in Edinburg, and he was
talking about how he’d gotten a letter from
his brother Leonel. Then, more quietly, he
said something about how Leonel had no
business being in the pen for this crime. He
said that Leonel had nothing to do with the
whole thing. Raul said he was the one who

17
‘This

shot the police officers.

4. Another time, only about two months
before Raul was killed, I was at Raul’s house
and he was showing. me some letters from his
brother Leonel and from another death row
inmate named Cuevas. Once again, Raul said
that his brother Leonel shouldn’t be on death
row, because he (Raul) was the killer.

5. When Raul told me he’d done these
killings, I didn’t ask him any questions or
say anything to him, even though it seemed
like he wanted to talk about it. I didn’t
want to know more about it, because I was
afraid of Raul and I didn’t want to get
involved in any way and have Raul coming
after me. When he told me these things, he
didn’t say anything about how it happened or
give any specifics, and I didn’t ask any
questions.

8. During the last years he was alive, Raul
was acting differently. It’s hard to
describe, but he seemed to always have alot
weighing on his mind. All he wanted to talk
about was his brother Leonel. He would say
how Leonel never had a chance, and you could
tell he felt bad about his brother.

9. I’ve never said anything to anybody
about what Raul told me about those cop
killings. I know I probably should have, but
like I said, I just didn’t want to get
involved, and no one ever came and asked me

about this.
affidavit appears at Appendix 14. This person states:

1. I am Juan Franco Palacios. I reside in
Pharr, Texas.

2. I was a friend of Raul Herrera, the
brother of Leonel Herrera for many years.
Raul Herrera was murdered about six years

ago.

3. Several years ago Raul Herrera and I
were both locked up in the Hidalgo County
Jail at the same time. I believe the year

18
In sum, the evidence that Leonel Herrera did not kill the
officers in this case is unsettling. Indeed, with this evidence,
it is unlikely that a prosecutor would even choose to go to

trial. Surely this Board must de what it can now to correct an

injustice.

was 1984. Raul was in jail on some sort of
charge from a domestic problem that happened
between him and his wife Blanca. I remember
that at the time that we were both locked up
together, Raul had a broken leg and he was
wearing a cast.

4. Raul was extremely depressed when we
were in jail together. One night he came to
me and he told me that he had many things
weighing very heavy on his mind and he needed
to free himself of that. He then told me
that he is the one who should be having a
death sentence and not his brother Leonel.

He told me that he, Raul, was the one that
killed police officers Rucker and Carrisalez
and not his brother Leo.

lphis witness states:

1. My name is Jose Ybarra Jr. I currently reside on
Mesquite Road, in Monte Alto, Texas. I am 43 years
old. I attended junior high school with Raoul Herrera
and Leonel Herrera in Edinburg, Texas.

2. In the summer of 1983, I ran in to Raul Herrera
outside of the Las Vegas Lounge, which is located in
Edingburg, Texas. I immediately noticed that he looked
very disturbed. As I approached him, he told me that
he was the one who had killed the two cops. Because he
looked so disturbed and upset, I became nervous and

_continued past him into the club. That was the last
time I saw Raul Herrera.

Appendix 15.
19
III. DOUBT ABOUT GUILT IS THE QUINTESSENTIAL
CLEMENCY CONCERN, AND THE MOST PROCESS
POSSIBLE SHOULD BE AFFORDED THE POSSIBLY

INNOCENT

The execution of an innocent person is a prosecutor’s worst
nightmare.'' The general public is also frightened by that
specter--fifty-eight per cent of the population express doubt
about executing the wrong person as the most serious concern with
capital punishment.”

After the Herrera opinion, the United States Senate began
serious consideration of a bill to require the federal courts to
address late claims of innocence. Appendix 22. Hearings held in
the Senate reflected great concern for the potential for
injustice wrought by the opinion.

Plainly the people of Texas, like all citizens, would abhor
the execution of an innocent person. Accordingly, doubt about
guilt should be resolved, or not, in a painstakingly delicate
manner. Governors and clemency boards from other death penalty
states have successfully struggled with the issue, and come fully
to grips with the awesome power and responsibility that arises
with doubt about guilt. "The test to be applied is not whether
one believes that the accused committed the crime in question,
but whether one holds that belief without the presence of any
reasonable doubt."" Commutation Order Entered By Virginia

Governor Douglas Wilder On Behalf of Herbert Russell Bassette.

"See Appendix 21, letter from Jim Mattox.

See Sentencing for Life, Americans Embrace Alternatives to
the Death Penaity.

20
Appendix 24. Applying this test, Governor Wilder commuted the
sentences of both Herbert Bassette and Joseph Giarratano, Jr.

Id. lULikewise, the Hon. James Martin, Governor of North Carolina,
recently commuted the death sentence of Anson Maynard even. though

"lengthy, prayerful consideration" left him unsure whether Mr.

Maynard was an innocent man:

I 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....

There is reasonable doubt in my mind. ...
For that reason, I have commuted Anson
Maynard’s death sentence to life in prison

without parole. It is cases like this that
wer of c cy i iven
governor.

Appendix 24, Commutation Order Entered By James Martin On Behalf

of Anson Maynard.

Mr. Herrera is entitled to a similar level of decency and

respect for his evidence that he is not guilty. An appropriate

" process must be in place to deliver such consideration, or Mr.

Herrera’s execution will be gratuitous cruelty.

21
Number

11

19

20

APPENDICES

Description

Letter to Governor Richards and Chairman Kyle from
McDonald, Whitehurst, Clark, and Martin dated May
5, 1993

Affidavit of Ernie Hulsey dated May 6, 1993
Polygraph Examination Report for Raul Herrera, Jr.

Affidavit of Raul Herrera, Jr. dated January 29,
1992

Affidavit of Raul Herrera, Jr. dated February 17,
1992

Polygraph Examination Report for Norma Rodriguez
Affidavit of Norma Rodriguez dated May 6, 1993
Polygraph Examination Report for Antonio Rivera
Affidavit of Antonio Rivera dated May 2, 1993
Polygraph Examination Report for Jessie Gomez
Affidavit of Jessie Gomez dated April 23, 1993

Affidavit of Hector J. Villarreal dated December
11, 1990

Affidavit of Adan Alaniz dated April 25, 1993

Affidavit of Juan Franco Palacios dated December
10, 1990 .

Affidavit of Jose Ybarra, Jr. dated January 9, 1991
Indictment of Leonel Herrera

Verdict Form -- Conviction of Capital Murder dated
January 20, 1982

Verdict Form -- Sentence (Answers to Special
Issues) dated January 21, 1982

Judgment of Conviction and Sentence dated January
21, 1982

Order Fixing Date of Execution of May 12, 1993
21

22

23

24

Jim Mattox Letter to the Editor, New York Times,
April 3, 1992 ee

Statement. of Sen. Howard M. Metzenbaum on
introduction of bill to overturn Supreme Court
Herrera Decision dated January.27, 1993, and. copy
of bill

Letter from Mark Olive to Texas Board of Pardons
and Parole on behalf of Leonel Herrera dated May 4,
1993

Recent grants of clemency from other states based
on doubts about guilt

sass
APPENDIX 1

j Letter to Governor Richards and Chairman Kyle
er from McDonald, Whitehurst, Clark, and Martin
dated May 5, 1993

May 5, 1993

Governor Ann Richards
State Capitol
Austin, Texas

Jack D. Kyle, Chairman

Texas Board of Pardons and Paroles
2503 Lake Road, Suite 9
Huntsville, Texas

Re: Herrera v. Collins and the Clemency Process

for Condemned People Who Maintain their Innocence

Dear Governor Richards and Chairman Kyle:

In the last week, we have followed the case of Gary Graham
with great interest and concern. The responsibility to determine
whether a possibly innocent person has been sentenced to death
presents a grave moral challenge as well as a vexing set of
procedural issues. We are writing to express our hope that you
will find a way to treat Herrera claims with the kind of
creativity, honesty, and dignity that you have sought to introduce
into the pardon and parole process since you have borne the
responsibility for it in our state.

In January, the U.S. Supreme Court’s decision in Herrera v.
Collins, 113 S.Ct. 853 (1993), thrust an awesome and new
responsibility onto the states. Asked to. decide whether the
Constitution prevents the execution of a condemned person who, in
light of evidence discovered after trial, appears to be innocent,
the Court held that the Constitution does not prevent the execution
of such a person. In reaching this conclusion, however, the Court
said that such a person "is not... left without a forum to raise
his -actual innocence claim[{,]" for in Texas, as in any other state,
the. person "may file a request’ for executive clemency." Id. at
866. The Court went onto describe the role of -clemency in

protecting innocent people against execution:

"Clemericy 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....

Executive clemency has provided the ‘fail-
safe’ in our criminal justice system...."

Id. at 866, 868.

The practical consequence of this ruling was to allocate to
the clemency process of the states the entire responsibility of
determining who should live or die under these circumstances. In

eo titnnintt
so doing, the Court shifted this ultimate responsibility without

- giving even a hint as to how the responsibility should be carried

out.

Our concern is that the clemency process as it now exists in
Texas, as in most other states, is sorely inadequate to the task
that the Supreme Court has thrust upon it. Prior to Herrera, the
Board has always been able to rely on the trial record and the
jury's verdict to establish the facts of the case. The guilt of
the applicant was not a matter that the Board had to be concerned
about or address. Herrera has changed this in the most fundamental
way. Now, when faced with a new and credible claim of innocence,
the Board must assume duties not unlike those of a judge and jury
in determining whether the newly-discovered evidence provides a
basis for clemency in order to prevent an irreversible miscarriage
of justice. The failure to do so would leave questions unresolved
that would continue to haunt this state’s justice system, eroding
public confidence in the system and preventing closure on bitterly

contested and deeply felt issues.

The question that immediately arises is, what kind of hearing
is necessary to assure reliable resolution of credible questions of
innocence? The kind of hearing that the Board holds in other cases
is not likely to be the kind of hearing that the Board can feel
confident about in deciding questions of innocence. In other
cases, the credibility and value of evidence is predetermined by
the jury’s verdict or by a judge’s findings. There is no
predetermination, or even prior consideration, of the evidence in
a case that presents a new and credible claim of innocence.

Because the U.S. Supreme Court has thrust the state and the
Board into an arena for which it has never developed procedures, we
urge you to take the lead in developing procedures for hearing
credible claims of innocence. With your leadership, the risk that
our state will be subject to legal challenge for failing to develop
such procedures will be minimized. More importantly, we can be
confident that we are meeting the moral challenge given us by the
U.S. Supreme Court as well as the demands of elemental justice.

If we can be of assistance “in developing these procedures, we

would be glad to do’so.

Sincerely, . WurkS
Ahir LKmsy OF
@ McDonald

Harley ark

Wot

Bill Whitehurst Steve Martin

Gabrigll
APPENDIX 2

Affidavit of Ernie Hulsey
dated May 6, 1993

State of Texas

County of Harris
Affidavit ie Hulse’

1. My name is Ernie Hulsey, and I am a resident of Harris
County, Texas, am over the age of eighteen, and am competent to
give this affidavit.

2. I ama licensed polygraph examiner in the State of
Texas, and have been licensed since 1973. I am currently the
Chairman of the State of Texas Polygraph Examiners Board, which
is the state’s licensing and policing agency for polygraph
examiners. I was appointed to the Board by Governor Bill
Clements in 1989.

3. I have had extensive experience in law enforcement, both
as a trooper with the Texas Department of Public Safety, and as a
consultant to and contractor with law enforcement agencies and
organizations throughout the State of Texas. I graduated from
the Texas Department of Public Safety Academy in 1966, and became
a state trooper with the Department. In 1972, while employed
with the Department of Public Safety, I graduated from:-the Texas
A & M University Police Polygraph School, and from 1972 through
1975 I tas a Department of Public Safety Regional Polygraph

--Examiner in Houston, Texas.

Page J of 3

4. After I left the Department of Public Safety and went
into private practice, I have conducted numerous polygraph
examinations for and consulted with the Department of Public
Safety and many other law enforcement agencies throughout Texas.
For example, at the present time I am on contract with the Harris
County Sheriff’s Department to conduct polygraph examinations for
their office. I have also conducted examinations for, among
others, the Texas Attorney General’s office, many other state law
enforcement agencies, and many local sheriff and police
departments throughout the state. In that capacity I have
conducted many such examinations. In total I have conducted over
35,000 examinations, involving murder, robbery, rape, arson,
burglary, and numerous other criminal offenses. I have also been
an instructor at both the Texas A & M Police Polygraph School and
the University of Houston Polygraph School. I was the director
of the University of Houston School from 1986 through 1989.

5. I conducted the polygraph examinations on the following
persons on the indicated dates:

Raul Herrera, Jr., April 30, 1993
Jesse Gomez, May 2, 1993

Norma Herrera, May 2, 1993
Antonio Rivera, May 2, 1992

I prepared reports on each of these examinations for Attorneys

Robert McGlasson and Mark Olive.

Page 2 of 3
6. Attached to this affidavit is a copy of my Resume.

Under penalty of perjury I hereby swear that the foregoing is

true and correct to the best of my information and belief.

DoS ldake

Ernie Hulsey ay

Ra

s . My
Sworn to and subscribed before me S ae
this GY day of os , 1993. 5 tae 3
Doves Bia A
2 3 =
: 3 4; =
% Troe ¢
" ty, FREES OS

nfm A B-BAss

Page S$ of 2
PROFESSIONAL
CREDENTIALS

ERNIE HULSEY
Resume/Personal History

Licensed Polygraph Examiner In Texas since 1972
State License #312

Graduate of Texas Department of Public Safety Academy
in 1966

Graduate of Texas A&M University Police Polygraph School
in 1972

Texas Department of Public Safety-Regional Polygraph
Examiner in Houston 1972-1975

Twenty years experience. in Professional Polygraph

_ Testing

Over 35,000 examinations conducted involving Forgery,
Burglary, Robbery, Rape, Murder, Arson, Extortion, _
Espionage, Sabotage, all types of sex related criminal
offenses and numerous other types of criminal offenses

Proficient in the utilization of. the Backster Zone of

ison, Keeler, Reid, Arther; R & I, Balanced
Flexibility Technique and other recognized Techniques
Instructor Texas A&M University Police Polygraph
School from 1977 to 1984

University of Houston Polygraph School - Director, 1986 to
1989

Conducted Polygraph Examinations for numerous Defense
Attorneys, Prosecutors, Attorney General's Office, Texas
Rangers, Texas Depactisent of Public Safety, City, County,
State -and Federal Law Enforcement Agencies as well as all
types of Business and Industry

Private Polygraph Practice since 1978 as ERNIE HULSEY &
ASSOCIATES

Secretary of Texas State Board of. Polygraph Examiners,
1989; Vice Chairman, 1990; Chairman, 1992; Chairman 1993
Texas Association of Polygraph Examiners ~ Board of
Directors Member 1930

American Polygraph Association - Membership Committee 1979
to 1989 :

Anerican Association of Police Polygraphisrs
APPENDIX 3

Polygraph Examination Report for Raul Herrera, Jr.

TOUR a5
-
r |

AUR

wii

ERNIE HULSEY & ASSOCIATES

11907 Corona Lane
Houston, Texas 77072
Business Phone (713) 981-0294

April 30, 1993

Robert McGlasson, Mark Olive
Attorneys at Law

1206 San Antonio St.

Austin, Texas 78701

SUBJECT:

CLIENT:

EXAMINATION
METHOD:

STATEMENT
OF FACT:

POLYGRAPH EXAMINATION REPORT

Raul Herrera, Jr.; AGE: 21; DOB: 11/04/71;
Born in McAllen, Texas

Mr. Robert McGlasson
Mr. Mark Olive
Attorneys at Law

The Balanced Flexibility Technique was utilized on
each test chart. Three test charts were
administered.

The case information was submitted by attorney,
Robert McGlasson.

According to the case information submitted, on
September 29, 1981, Texas State Trooper David Rucker
and Los Fresnos Police Officer Enrique Carrizales
were shot and killed during two different
confrontations with, apparently, the same gunman
while on traffic stops. The person accused of the
two murders was Leonel Herrera. Herrera was
convicted of both murders.

Through their investigation, attorneys for Leonel
Herrera obtained information implicating Raul
Herrera, Sr., Leonel's brother, as the actual
murderer. Evidence revealed by the investigation

* showed that Leonel Herrera was left at his mother's

house passed out while Raul Herrera, Sr., Chavello
Lopez and Raul Herrera, Jr., who was approximately

9 years and 10 months old at the time, left in Leonel
Herrera's Cougar. The information’ reflected that,
before his death in 1984, Raul Herrera, Sr. told
several people that it was he and not Leonel who had
killed the officers.
Mr. Robert McGlasson 2.
Mr. Mark Olive

EXAMINATION
CRITERIA:

April 30, 1993

The polygraph subject, Raul Herrera, Jr., is now
stating he was with his father in the Cougar with
Chavello Lopez and his father in fact got out of.
the car to talk to the D.P.S. Trooper and after
firing a-shot got back into the car and said, in
Spanish, words that meant he had shot the
officer.

After driving into Los Fresnos he was stopped by
a Police Officer and after opening the door
turned and shot the officer. Raul, Jr. stated he
saw his father step out of the car with a gun and
fire the shot that killed the Los Fresnos
Officer.

The subject was being questioned on the polygraph
to determine his truthfulness on the statements
he made.

The following relevant questions were constructed
and administered. The ‘subject's verbal response
follow each question in quotations.

1. At the time the D.P.S. Officer was shot,
were you in your Uncle Leo's Cougar with
your father? "YES"

2. At the time the D.P.S. Officer was shot,
was Leonel Herrera in the Cougar with you
and your father?’ "NO"

3. Did you hear the shot that your father
fired when the D.P.S. Officer was shot?
"YES"

4, When your father got back into the car
after the shot was fired, did he say words
in Spanish that meant he had shot the D.P.S.
Officer? “YES" :

5. Was your father driving the Cougar when the
second Police Officer stopped the car?
"YES"

cepehanad ywns
Mr. Robert McGlasson 35 April 30, 1993
Mr. Mark Olive 5

6. Did you see your father step out of the
Cougar with a pistol in his hand? "YES"

7. Did you actually see your father shoot the
second officer that stopped you? "YES"

8. Prior to the shooting, did your father
leave your Uncle Leonel at your
grandmother's house? "YES"

9. ‘At the time the second police officer was
shot, was Leonel Herrera in the Cougar with
you and your father? " NO"

. EXAMINATION After careful analysis of the subject's

RESULTS: polygrams, it is this examiner's professional
opinion that there was no significant criteria
indicative of deception. The subject was
considered.to be truthful when he answered the
above listed relevant questions.

For any other information, please contact this
examiner. .

Boyt ha

ERNIE HULSEY
President

EH/jh
STATE- OF TEXAS

POLYGRAPH EXAMINERS BOARD
STATE LICENSE #312

APPENDIX 4

Affidavit of Raul Herrera, Jr.
dated January 29, 1992
STATE OF TEXAS s
COUNTY OF WALKER s

AFFIDAVIT OF RAUL HERRERA, JR.

Personally appeared before the undersigned officer duly
authorized by law to administer oaths, Raul Herrera, Jr., who
being auly sworn states on oath:

1. <I am Raul Herrera, Jr. I am the nephew of Leonel
Herrera, and the son of Leonel’ s brother Raul Herrera. On
September 29, 1981 I witnessed the murders of two police officers
who were killed in the Rio Grand Valley. At that time I was nine
years old. The first one, whose name I later found out was David
Rucker, was shot near Port Isabel, Texas, and the second one,
whose name I later found out was Enrique Carrazales, was shot
while we were on our way home to Edinburg. He was shot near Los
Fresnos. My father, Raul Herrera, shot both of the men. A man
named Chavello Lopez was also in the car when my father shot the
men. At that time, my father and Chavello were best friends and
business partners. They were together almost all the time. My
Uncle Leonel was not present with us when my father killed the
officers. Only myself, Chavello and my father were in the car
when the shootings : happened.

2. On the afternoon of the day the shootings happened, I
was at my grandfather’s house in Mission, Texas. My father was
also there, and so was Chavello Lopez, my ‘uncle Leonel and some
other men whose names I did not know, but who I had seen doing

business with my father. A sheriff stopped by my grandfather’s

house that afternoon. We had a barbeque and my ‘father and Uncle
Leonel snorted cocaine a lot of the afternoon. I know the men
talked a lot about business and they seemed very upset about
something, but I did not know at that time what it was they were
upset about.

3. I knew at that time that my grandfather and my father
and my Uncle Leonel were in a drug business together with some
other people in the valley and I knew that they worked dealing
drugs for the sheriff of Hidalgo County. I knew this because my
father never hid his business from me. Since the earliest I can
remember, he snorted cocaine in front of me. He took me.on
cocaine deliveries with him, and I was with him often when he was
paid for the deliveries. I often went with him to pick up cars
in Starr County with drugs in them which we delivered to
different places, usually Houston. I always knew where different
shipments were kept. My father was training me in his business.

4. When it came to the business, my father was the boss
over my Uncle Leonel. Inside our family, it was my father and
grandfather that made most of the decisions, made the big
deliveries and did the collecting. "ghey made most of the money
also. My grandfather had a big ranch house in Mission and
another one.in Houston to show from the business. My father had
some different puginesses and also a good house. My Uncle Leonel
was more :like ‘a junkie. He dian't have anything to show: for the
business. By 1981, he was very bad on the cocaine, and he spent
most of the time wasted from it. Many, many times, especially

right before he got locked up for these shootings, I used to see

him passed out from the cocaine with blood all over his face from
his nose. He stayed in the business to get the drugs. His job
was to cut the drugs for my father. In return they usually gave
him mostly cocaine instead of money.

5. After the barbeque at my grandfather’s house on the day
the-shootings happened, me, my father, my Uncle Leonel and
Chavello Lopez left in my Uncle Leonel’s car which was a gray
Cougar. My Uncle Leonel was not driving because he was too
wasted on the cocaine. _ We stopped at several houses and then we
drove to the house viiere by grandmother and my aunt Nomna. were
staying on Eighteenth Street in Edinburg. My Aunt Norma and my
grandmother were at home. We dropped my Uncle Leonel off at the
Eighteenth Street house, and me, my father and Chavello Lopez
drove to some more people’s houses whose names I do not know.
Then we drove to near Port Isabel where my father killed the
first officer. My father actually did the driving. cChavello sat
in the front seat next to my father, and I rode in the back seat
of the car. The officer that was killed met us at a rest stop
off the highway. My father pulled the car over first. He told
me to stay down in the car. -Then he got out of the car and spoke
to the officer and then he shot him. My father got back in the
car and we drove ‘away. ae

6. We were driving back toward Edinburg when we were

pulled over by another police officer. My father pulled over the

~--@ar-and- opened the driver's side door. He stepped half way out

of the car and shot several times. At that time I hid on the

——

floor between the front and back seats of the car. Then we drove
away. We stopped at one or two people’s houses on the way back,
and then we went to Leonel’s common law wife, Lali’s house back
in Edinburg. We parked the car next to the house and picked up

another car there. I do not remember what the other car looked
like. My father used a lot of different cars in his business and
we were always changing cars. My father talked to my aunt Lali
about something at her house and then we left in the different
car. We drove back to my Aunt Norma’s house on Eighteenth
Street. I am not sure what time it was but I know it was very
late at night or early in the morning. My Uncle Leonel was still
there. I remember my father yelled at my Aunt Norma, and then we
left. - Uncle Jesus, who we called Chuy, was also at my Aunt
ieee house when we got there after the shootings. My

grandmother Maria was there and so was a friend of the family who

“goes by the name Ossi. Ossi and I went outside and talked in the

alley behind the house. I have not seen my Uncle Leonel since we
left him at my Aunt Norma’s house on that night.

Ts During the years after my “father killed those officers,
our entire family fell apart. My father stayed in the drug

business until 1984, when my father was murdered. He had started

drinking a lot and being sloppy with the business. Also around

that time, he was arrested for attempted murder for shooting ny .
mother. The night before he was murdered, he cried in front of
mé. He told me that he had done a lot of wrong things, and he

asked me to forgive him for what he did to my Uncle Leonel. I
was twelve years old. I had never seen my father crying before.

I remember he made me sign something saying I would do right with

my life. The next day me, my father, my brother and Chavello

were supposed tc go to the beach together. On cur way there we
stopped at Chavello’s house. As we were walking from the street
toward the front door of Chavello’s house, my father and Chavello

started arguing about my Uncle Leonel. Chavello said that ny

father talked too much. Chavello kept going toward the house and

me and my father turned around and were walking back toward our
car. Chavello went inside and came right back out and wshot ay

father in the head. Chavello screamed at my brother and me to
get out, and we ran to the neighbors.

8. I told a police officer about my father having been the
one that shot the police officers and not my Uncle Leonel, but he
told me never to say anything about it again. Until now, no
attorney for my Uncle Leonel has ever asked me anything about his
case. I am telling the truth about what I know to have happened

because I know that Leonel Herrera did not the police

officers.

Further affiant saith not. Raul fl

RAUL lf LL tn

Sworn to and subscribed to me

this 74% day of Oasnuns 4 , 1992.

Nota Public
My commission expires: Jealay

APPENDIX 5

Affidavit of Raul Herrera, Jr.
dated February 17, 1992

RON A RRaRRI NR re iccr IT
State of Texas

County of Walker

Affidavit of Raul Herrera, Jr

1. I am Raul Herrera, Jr. I am the same Raul Herrera, Jr.
who signed the affidavit dated January 29, 1992 stating that my
father, and not my Uncle Leo, killed Officers Rucker and

Carrisalez.

2. Ever since I was a small child I have known that my.

father and my grandfather were involved in illegal drug trafficking
activities with the Sheriff of Hidalgo County, Brigado Marmalejo.
I accompanied my father many, many times when he was involved in
these activities. Many times I went with my father on trips to
Cameron County to different people’s houses or to businesses where
by father met with different Department of Public Safety (DPS)
officers. These DPS officers wore DPS uniforms and drove DPS cars.
My father oversaw the loading of illegal drugs from the-houses or
businesses in Cameron County into the DPS officers’ cars. Then the
DPS officers drove the cars, full of drugs, back to Hidalgo County.
I drove back with my father and we met the DPS cars usually at my
grandfather’s ranch on 7 Mile Line Road in Mission, TX or at
Sheriff Marmalejo’s ranch outside of Edinburg, TX. The drugs were
loaded into 18 wheeler trucks that carried produce.

3. One of the uniformed DPS officers who regularly made
these trips with my dad was the man I later learned was named
Officer Rucker. Other DPS officers were aware of these activities
even if they were not directly part of it.

4. I remember taking these trips with my father during the
year before my father killed the police officers and before my
Uncle Leonel’s trial. We kept making these trips after my Uncle
Leonel’s trial, all the way up until my father was killed. DPpPs
officers always acted as security for the dtug transfers.

5. I remember very clearly the period when my Uncle Leonel
was tried for the murder of the two police officers. My father was

very upset during this time. While the trial was going on, .

different DPS officers, and other police officers, came to my
father’s house on 6 Mile Line Road in Mission, TX to meet with my
father. They had meetings like this almost every night that the
trial went on. Sheriff Marmalejo came to one of these. meetings.:
Usually there were 6 or 7 people’ altogether, including ny fathe
Each night I saw DPS officers in uniform and other police. officers
in plain clothes at the house talking to my father. They always
talked about Uncle Leonel’s trial. They were angry and they wanted
to make sure my father and my Uncle Leonel were not going to tell
the truth about what really happened to the police officers who
were killed. Police officers threatened our family. They were
frightened that their drug business would be exposed.

er es
6. After my Uncle Leonel was arrested and beaten up, I saw
a picture in the newspaper of him being brought from. the hospital
back to the jail. I recognized one of the police officers as one
of the men who I had seen snorting cocaine with my father at my
grandfather’s ranch, my father’s house and the Las Vegas Bar in

Edinburg, Tx.
Further affiant sayeth not.

Raul Herrera, Jr

Subscribed and sworn to before me this 17th day of February 1992.

My commission expires 1/29/94

Notary Public

_ Stak. Bly TOKO one na

atiainite oe Rasel. Herrena , Sr.

L_ cl asen Caul Newnes, Ic bein tie ayn
Barone Raut Nesacia e who signed Hie affidavit

ek Wa Unele. Leo, tilled officens Rockey
ad Covi sodez lk re
eB. vec. shee Tl uae. oo. swelt Aad

= att nina eg nba a adivines
——_—Maucimots,io.. To _actomapawnied. ny. eer sicee —
Sahni _ Ante thor We nie involued. (nn Maeas

Ihnrcen or to business

mek pitta difleroer Apparent re Pubic Safety é
Core) ofbcow.

pee sr baad we mettre DPS can. Disindles at _ nay
—AfRidansit of Card Heraceno page. Donen _

ny re an TLmile Une oad tra _
Mission, TX or ok sti Masons teeta —__

_trate 12 a are en

A Our a Has vnifavnsed. DPS of hcere

Whe reogthonales Moads Heo beips uddn wu,

had wae Hae man TO later (eanned wan
Lofts Cucke OH NPS La
4 : i *

Hier weno. wet directs pant of it.
a ~~

{orleans bea upset - Hin Hye 4
White Ye bse lk wan Aru 0, iPRonomt DES j

BF Adavit of Rout Herrera, Tr. page 3

WHOMsg TO onnr 4, Htizoe WNC URS » Ustretdars bee
haa wee & or 7 peop. abtogetiur, melding __.
=! way Hore, Tach nigur T sews OPS of Amr...
_dAauiniform crack otrer police off.ttse inn

_———_ Plasa hots ..ck Here Rowme trating to. tay —_
_ -Theay. aloo toeed atout Uncle

__ one's. trian They. a cian
Wanted fo matee Aare . ttf dcr tte en. scr ch totes 4
“Unde Leon, UwWeas..got genius to tell He teva __
_-odmouk. whet Atoty. ha pperard. to or olice.
ny eo. urin...Gilled.  Fokica. officer mae: Hare attascech
oo petra. Ther, WER, fede tere ch cnet Heed
Nera aircon .wourld laa. eK pased
.. After dy Unde lrowel wae anaroded—

woe a OAm dr eatin Vp, 5. sano.o. picthims wa Hee

lon hod 2 eam snorting cocaine ust se cfatinenc §
Wad wan Oyo} OAS 1 YO meNn , ‘ :
tHannde io. Lan Vegas Bowe an Zdans breg, TH

Fuclisine Ant

L

L

LAS Ys
i Row Heyes, 3%

A _ Sulosecibed amd duo Jo lnefre Aso Hino

fers font IH aay of Be Rbrny 1992

_ PluUin L Ovo —— hay Commisszion-sx pine tesla, ______

APPENDIX 6

Polygraph Examination Report for Norma Rodriguez

Fi

LL

May 2, 1993

ERNIE HULSEY & ASSOCIATES

11907 Corona Lane
Houston, Texas 77072
Business Phone (713) 981-0294

Robert McGlasson

Mark Olive

Attorneys at Law
1206 San Antonio Street
Austin, Texas 78701

SUBJECT:

CLIENT:

EXAMINATION
METHOD:

STATEMENT
OF FACT:

POLYGRAPH EXAMINATION REPORT

Norma Herrera Rodriquez; AGE: 40; DOB:
10/26/53; Born in McAllen, Texas

Robert McGlasson
Mark Olive
Attorneys at Law

The Balanced Flexibility Technique was utilized on
the examination.

This examination was given as part of an
investigation in the Leonel Herrera case. Other
background information is provided in other reports
submitted by this examiner.

The subject was being examined to determine her
truthfulness concerning her statements. - According
to the case information submitted, the subject was
home the evening of the shootings of the police
officers. Her statement reflected that Raul
Herrera, Sr. had brought Leonel to her house on
that evening before dark and that she had taken
Leonel to his house about 12:30 A.M. ~

ee aes
Robert McGlasson 2.

Mark Olive

EXAMINATION
~CRITERIA:

May 2, 1993

During the pre-test phase of the interview the
polygraph subject stated on the day of the
shootings she was home getting ready to go to a
concert. She stated Raul Herrera, Sr. drove up in
Leonel's Cougar and let Leonel out. She stated
Leonel was visibly messed up and staggering. She
could see he had blood on his shirt and she jumped
him about his condition. She stated he told her he
didn't want to hear it and went into the house to
lay down. She stated she followed him into the
house and- Raul Herrera, Sr. drove off. She could
see someone else in the car, but couldn't see who it

was.

The polygraph subject then related that Leonel went
into her bedroom and passed out on the bed. Her

date cancelled so she stayed home. She remembered
the baby sitter came and stayed for a little while.

The polygraph subject then stated that sometime
around midnight, or a little after, Raul Herrera, Sr.
came to the door with someone else and told her to
tell Leonel to take the blame. Raul Herrera, Sr.
then left quickly. She said Leonel came to the

‘bedroom door and asked "What did he say," and she

told him. Leonel told her to take him home. She
stated Leonel talked to his wife on the phone before
they left and then she took him home.

The. polygraph subject then stated when they arrived
at Leonel's house his wife said to him that he was
to take the blame and then Leonel ran away. :

The polygraph subject then stated Leonel couldn't
have killed the officers because he was with her and
her mother... She also stated Raul Herrera, Sr.
threatened her to:keep her ‘quiet about what she
knew. Raul Herrera, Sr. told her he would get

Leonel out.

The following relevant questions were constructed and
administered. The subject's verbal response follows
each question in quotations.

1. On the day the officers were shot, did Raul
drop Leonel off at your house in the late
afternoon? "YES"

Robert McGlasson Bs: May 2, 1993

Mark Olive

2. Was Leonel messed up and staggering when Raul
left him at your house? "¥ES*

3. Did Leonel pass out on your bed on the evening
of the shootings of the officers? "YES"

4. Did Raul drive off in Leonel's car after
leaving Leonel at your house? "“YES"

5. Was Leonel at your house from before dark
until you took him home at approximately 12:30
A.M. on the night the officers were shot?
"YES" _

6. Did Raul-come to your house on the night the
officers were shot and say to you, "Tell
Leonel to take the blame?" "YES"

7. Did Raul threaten you to keep you from saying
that Leonel was at your house when the
officers were shot? "YES"

8. Before the first trial was over, did Raul tell
you it was because of him and Chavello that
Leonel was in jail? "YES"

EXAMINATION Evaluation of the subject's polygrams failed to
RESULTS: reveal any criteria indicative of deception. In
this examiner's professional opinion the subject was
being truthful when she answered the above listed

relevant questions.

For any other information, please contact this
examiner.

ERNIE HULSEY
President

EH/jh

' STATE OF TEXAS
~~~" "POLYGRAPH EXAMINERS BOARD
STATE LICENSE #312
APPENDIX 7

Affidavit of Norma Rodriguez
dated May 6, 1993

Le
State of Texas

County of Harris

Affidavit of Norma Herrera Rodriquez

1. My name is Norma Rodriguez. Leonel Herrera is my

brother. I am over the age of eighteen and am competent to give

this statement.
2. On September 29, 1981, the night the two police officers

were killed in the Los Fresnos, Texas area, my brother Leonel
spent most of the night with my mother and me at my house on
Eighteenth Street in Edinburg, Texas. A few days after that the
police arrested Leonel for the killings. I know it was not my
brother Leonel that did the killings, though, because he was with

me and my mother when they occurred.

3. I remember the day and evening of the shootings very
clearly, because the things that happened that day changed my
life and my family’s forever. During the late afternoon of the
29th, igome: time before it was dark, my other brother Raul Herrera
stopped by my house to drop off Leonel. They were in Leonel’s
gray cougar, and Raul was driving. I could tell Leonel was very
messed up on cocaine... His nose was bleeding and he couldn’t: talk

right or walk straight. After Leonel got out of the car; Raul

drove away.

4. When I got Leo into the house, I cleaned the blood off
his nose and shirt, and then put him into the bed in my bedroom.
He passed out immediately on the bed, and stayed there until well
into the night.

5. Later that evening, some time after midnight, my brother
Raul returned to the house. He was very upset, and he spoke with
me through the screen door. He said to me, "Dile a Leonel que
tome la muleta," which means, "Tell Leonel to take the blame."
That was all he said, and I will never forget the threatening way
he said it. Raul left on foot. By this time Leonel was awake,
and I drove him to his own house at that time.

6. I have not come forward with this information before now
because I have been afraid. I have a daughter, who was very
young in 1981, and I have been afraid for hers and my safety.
Raul threatened me and scared me from ever telling anyone that
Leonel was at my house that night and that Raul had come by and
said he was to take the blame.

7. Raul was not the only person I feared if I had come
forward with what I knew about all of this. ‘Over the years I
have been threatened by men who call and tell me to watch ny
step. After Leonel was arrested I was often followed in my car
by peopie I did not know. I have been stopped by police officers
on several occasions for no reason. On the night Leo was
arrested, I saw him unconscious at the police station, having.

been very badly beaten. I saw blood on the uniforms of some of

Page ot of 3
the police officers at the station. All of this has kept me

frightened for my safety and the safety of my family. I am still
afraid of what might happen now that I have told the truth about
what I know. But I just cannot live with myself anymore knowing

that Leonel may die for a crime I know he did not commit.

Under penalty of perjury I hereby swear that the foregoing is

true and correct to the best of my information and belief.

Norma Herrera Rodriqu

Sworn to and subscribed before me

this Oth day of May 1 1993.

“kek. (A

Notary Public

al! Sie, ROBERT L. HCGLASSON
ae MY COMMISSION EXPIRES.
March 1, 1994 .
se =

ae

A comtemmpraeetoeutec:

Page 3 of 3
APPENDIX 8

Polygraph Examination Report for Antonio Rivera

Ne MONG LSA TORRE IH
= os

ee

May 2, 1993

ERNIE HULSEY & ASSOCIATES

11907 Corona Lane
Houston, Texas 77072
Business Phone (713) 981-0294

Robert McGlasson

Mark Olive

Attorneys at Law
1206 San Antonio Street

Austin, Texas

SUBJECT:

CLIENT:

EXAMINATION
METHOD:

STATEMENT
OF FACT:

EXAMINATION
CRITERIA:

78701

POLYGRAPH EXAMINATION REPORT

Antonio Rivera; AGE: 73; DOB: 08/03/19; Born
in Quaquilla, Mexico

Robert McGlasson
Mark Olive
Attorneys at Law

The Balanced Flexibility Technique was utilized on
the examination.

This examination was given as part of an
investigation in the Leonel Herrera case. Other
background information is provided in other reports
submitted by this examiner.

According to the case information submitted, the
polygraph subject had stated that Raul Herrera, Sr.
came by to see him a day or two before Leonel was
arrested. He stated Raul Herrera, Sr. was upset

and stated,. "Dummy Leonel got the blame for shooting
the two officers." The polygraph subject then
stated Raul Herrera, Sr. told him he was the one who
shot the two officers. The polygraph subject. stated
he had not heard about the shooting at that time,
however he told Raul Herrera, Sr.-he should get an
attorney because they would be after him.

At that time the examination was constructed and
administered. Each relevant question asked is
listed below, along with the subject's verbal
response.

DAM
Robert McGlasson 2. May 2, 1993
Mark Olive

1. Are you going to answer with the truth on each
question? "YES"

2. Before Leonel was arrested for shooting the
officers, did Raul come by your house? "YES"

3. At that time, did Raul tell you that he was the
one who killed the two officers? "YES"

4. Did Raul tell you, "Dummy Leonel got the blame
for shooting the two officers?" "YES"

5. Did you make up any of this information? "NO"

6. Are you lying when you say Raul told you he
shot the officers? "NO"

EXAMINATION After careful analysis of the subject's polygrams, it

RESULTS: is this examiner's professional opinion that there
was no significant criteria indicative of deception.
The subject was considered to be truthful when he
answered the above listed relevant questions.

For any other information, please contact this
examiner.

ERNIE. HULSEY
President

EH/jh

STATE OF TEXAS
“POLYGRAPH . EXAMINERS: BOARD

STATE LICENSE #312

APPENDIX 9

Affidavit of Antonio Rivera
dated May 2, 1993

County of Hidalgo

State of Texas
Affidavit of Antonio Rivera

1. My name is Antonio Rivera, and I am over the age of
eighteen and am competent to-give this statement. I ama
resident of McAllen, Hidalgo County, Texas.

2. % am the step-grandfather of Leonel Herrera, who is on
death row here in Texas. My wife (who is deceased), Manuela
Garza Rivera, was the mother of Leonel and Raul Herrera's father.,
Jose Herrera. ,

3. Back in 1981 at the time the two police officers were
killed over in Los Fresnos, I was living in Mission, Texas. I
still own the Mission Texas property, but I now live in McAllen.

4. Shortly after the two officers were ‘killed, in the
middle of the morning Raul Herrera came by my house to borrow a .
‘pair of pliers. He was nervous and agitated. We were standing
outside the house talking. Raul said that he had. killed two :

police officers, and that Leonel (whom he called “pendejo", which’

means stupid or dummy) was being blamed for the crimes. This was.

‘the first I had heard -about any -police. officers being killed. I
was very surprised when Raul told me this. I told him he should
-get an attorney and-present himself to the officials, because

they were -geing te iesk fer fiim wherever he went and find him any
way. He -just walked off angrily. I never spoke to Raul about

on

ets coe
this again.
5. Within a day or two after Raul's visit, Leonel was

arrested for the killings.

6. I have never said anything about my conversation with
Raul to anyone until now. No one has ever come and asked me
about this, and it was a serious matter and I was afraid to get
involved.

Under ‘penalty of -perjury I hereby swear that the foregoing is
true and correct to the best of my information and belief.

hho sf Rinse

Antonio Rivera UY

I accurately translated this statement for Mr. Rivera from

English into Spanish, as I am fluent in both Spanish and English.

Ret Rodriguez

Sworn to and subscribed before me

this ind day of Dow 4 1993. 3 =
: = ROBERT L. MCGLASSON

ee eos

re

Notary Publi¢

APPENDIX 10

Polygraph Examination Report for Jessie Gomez

May 2, 1993

Mark Olive

SUBJECT:

CLIENT:

‘= EXAMINATION
METHOD:

STATEMENT
OF FACT:

ERNIE HULSEY & ASSOCIATES

11907 Corona Lane
Houston, Texas 77072
Business Phone (713) 981-0294

Robert McGlasson

Attorneys at Law
1206.San Antonio Street
Austin, Texas

78701

POLYGRAPH EXAMINATION REPORT

Jessie Gomez; AGE: 29; DOB: 01/31/64; Born in
Raymondville, Texas

Robert McGlasson
Mark Olive
Attorneys at Law

The Balanced Flexibility Technique was utilized on
the examination.

This examination was given as part of an
investigation in the Leonel Herrera case. Other
background information is provided in other reports
submitted by this examiner.

According to the case information submitted, the
polygraph subject had stated that Raul Herrera, Sr.,
told him, prior to Leonel's trial, that he, Raul
Herrera, Sr. had been the one who killed the two
officers and not Leonel.

The subject was being examined to determine his
truthfulness about the issue.

During the pre-test phase of the interview the
subject stated that Raul Herrera, Sr. had come over
to his home: sometime prior.to Léonel's trial. He
stated he and Raul Herrera, Sr. went out to the
orchard to talk. Raul Herrera, Sr. was upset and
told him that Leonel shouldn't be in jail because he
didn't kill the two officers. The polygraph subject
then stated that Raul Herrera, Sr. told him he was
in Leonel's car and after shooting the officers
threw the gun in a canal.

[A TAURINE ate
Robert McGlasson 2. May 2, 1993

Mark Olive

EXAMINATION
CRITERIA:

EXAMINATION
RESULTS:

At that time the examination was constructed and
administered. Each relevant question asked is
listed below, along with the subject's verbal
response.

1. Are you going to answer each question on this
test with the truth? "YES"

2. Did Raul Herrera, Sr. actually tell you that
Leonel shouldn't be in jail, because he didn't
kill the two officers? "“YES"

3. Did Raul Herrera, Sr. actually tell you he,
himself had killed the two officers while in
Leonel's car? "YES"

4. Did Raul Herrera, Sr. then tell you he had
thrown the gun in a canal? "YES"

5. Did Raul Herrera, Sr. tell you this prior to
Leonel's trial? "YES"

6. Did you make up any of the information that you
put in the affidavit you signed? "NO"

7. Did you tell the complete truth in the
affidavit you signed? "YES"

After careful analysis of the subject's polygrams, it
is this examiner's professional opinion that there was
no significant criteria indicative of deception. The
subject was considered to be truthful when he
answered the above listed relevant questions.

For any other information, please contact this
examiner. z

Cane fan —

ERNIE. HULSEY -
President

EH/jh

STATE OF TEXAS
POLYGRAPH EXAMINERS BOARD
STATE LICENSE #312
APPENDIX 11

Affidavit of Jessie Gomez
dated April 23, 1993

ye,
County of Willacy

State of Texas

Affidavit of Jessie Gomez

1. My name is Jessie Gomez, and I am over the age of
eighteen and am competent to give this statement. I ama
resident of Raymondville, Willacy County, Texas. I work at Knapp
Chevrolet in Harlingen, Texas. I am an auto mechanic.

2. I knew Raul Herrera ever since I can remember. He was
my cousin. My mother is the sister of Raul and Leonel Herrera’s
mother. [Actually, I was adopted when I was an infant]. Raul
was alot older than I was, and he took me under his wing as a
father figure, because my dad was always working.

3. I spent alot of time with Raul from the time I was about
twelve or thirteen until shortly after the two police officers
were killed near Los Fresnos. Raul would take me cruising with
other friends, and I would spend alot of time at his house or
Playing pool at my Uncle Max’s house. Uncle Max was Raul‘s
father. :

4. -Raul-was known to get violent frequently. I knew from
personal experience that Raul could go off real quick sometimes
without any warning. I respected him as my cousin, but I was
also afraid of him. ;

5. Some time after the crime, I know it was before Leonel’s

trial for the cop killings, Raul drove to my house one evening

where me and my family lived in Raymondville. He first was
talking with my dad. I remember he was telling my dad he needed
money, and my dad wasn’t giving him any, and Raul was getting
upset. I started to worry that Raul was going to explode on my
dad, so I said let’s go out in the orchard and drink some beer.
Raul and I went out in the orchards together, and we were
drinking beer and talking. While we were sitting there on the
car in the orchards, at one point Raul started crying, saying
that his brother Leonel shouldn’t be in the jail. I asked what
he meant, and Raul said because-his brother didn’t kill those
cops, he didn’t have anything to do with it. I asked Raul how he
knew this, and he said because he [Raul] killed them and Leonel
wasn’t even there.

6. I was really shocked when Raul told me this. At the
time I must have been only about seventeen or eighteen. I told
Raul that he needed to tell somebody else about this. He told me
he couldn’t, because he was afraid that sombdne: would harm him
and his family, and he didn’t want to go to prison again.

7. $%&I was afraid to ever saying anything about this, so I
didn’t. Knowing what I did about Raul’s personality, I was
scared he might really hurt my family or me if I gave this
information to anyone. So I never said anything about it.

8. After that evening in the orchard, I stopped seeing Raul
and the Herrera family as much. I remember when Leonel got the
death penalty, and when Uncle Max died, and when Raul was killed,

but I just stayed away from all of that and kept-to myself in

2
Raymondville. I was very afraid ever to say something about any

of this to anyone, and since that time no one has ever asked me

about it.

Under penalty of perjury I hereby swear that the foregoing is

true and correct to the best of my information and belief.

Je: e Gomez

Sworn to and subscribed before me

this <3 ve of — , 1993.

Notary )/Publi@” SY

tepid tes
APPENDIX 12

Affidavit of Hector J. Villarreal
dated December 11, 1990

ee
AFFIDAVIT

STATE OF TEXAS
COUNTY OF HIDALGO

My name is Hector J. Villarreal. I am an attorney licensed

to practice in the State of Texas. My address is 400 East Cano,

Edinburg, Texas.
In 1984 I represented Raul Herrera, one of Leonel Herrera's

brothers; on a charge of attempted murder. When’ I began
representing Raul, he was being held in the Hidalge County Jail on
this charge. I obtained Raul's release on a $25,000.00 personal
recognizance bond from Judge John Dominguez.

Shortly after Raul was released from the Hidalgo County Jail,
we met in Edinburg to discuss preparing for trial. .In the course
of that meeting Raul confessed to me that he; not Leonel, had
killed officers Rucker and Carrisalez.

In previous conversations with Raul I had been. told that Raul,
Leonel, and their father, Jose Herrera, were in the drug
trafficking business with the Sheriff of Hidalgo County, Brigido
Marmolejo. Raul and Jose were money collectors, and Leonel was a
“outter". As a cutter, Leonel's job was to cut the pure cocaine
with filler in preparation for selling it. Leonel always cut the
cocaine on South Padre Island. According to:Raul, David Rucker the
D.P.S. officer who was killed, was also involved with the drug
trafficking business: his job was to act as security for the

operation. Every time Leonel went to the Island, Rucker met him
and gave him coveralls to wear while he was cutting the cocaine.
Part of Rucker's job was to check the coveralls to insure that
Leonel did not take any cocaine.

Raul told me that on September 29, 1981, Leonel was supposed
to have gone to South Padre Island to cut cocaine. The plan was
that he would drive there with a drug dealer from the East Coast,
cut the cocaine and return, as he had done in the past. However,
the night before, Leonel had gotten very "coked up". That morning
his nose was bleeding badly and he was in no condition to drive to
the Island. Raul went in his place. Rucker was not Bléased with
the switch -- he did not know Raul and. was used to working with
Leonel. Raul and. Rucker had a harsh argument about the switch and
the deal did not go down because of it. When Raul and the East
Coast dealer were on the way back from the Island, Rucker pulled
them over on FM100. Another argument ensued and Raul shot Rucker.
Shortly thereafter, Raul shot Officer Carrisalez when he was
stopped for speeding.

Raul told me that he drove Leonel's car to the Island. He had

his own set of keys to the car because he and Leonel had keys to

each other's cars. Leo always kept his identification (Social

Security card) in the car.
Raul did not say anything about this before Leonel was

convicted because he thought Leonel would be acquitted. However,
Raul told me that when Leonel was convicted and sentenced to death,
Raul began blackmailing Sheriff Marmolejo. According to Raul,
Sheriff Marmolejo knew that Raul killed the two officers and that

D.P.S. Officer Rucker was working in the drug trade because both
Kavl and Rucker worked for him. While Raul was in jail on the
actempted murder charge in 1984 he began threatening to "spill the
beans" on the Sheriff if he did not receive money from him. After
he was released, he said he wanted more money or he would “come
clean" on what had really happened with the police killings.
After Raul was released from jail, he was out for several
weeks. Then, on September 8, 1984, the Saturday before the
attempted murder trial was to begin, he was shot in the back of the
neck and killed by Jose Isabel Lopez. Lopez was charged with
pled guilty to manslaughter and received # ten year

murder,

probated sentenced. It is my understanding that Lopez worked for

Sheriff Marmolejo in the drug trafficking business and that Raul
was killed for threatening to talk about the killing of the two

officers.
All of the above information is based on statements made to

me by my former client, Raul Herrera.
Under pain and penalty of perjury, the foregoing is true and

correct to the best of my knowledge and belief.

old. (Uber

Hector Ji Villarreal
Affi ce

SUBSCRIBED AND SWORN to before me this //¢4 day of

Wouenber , 1990.

NATALIA C. PENA Notary Public, in and for the

NOTARY PUBLIC State of Texas

State of Texas
cone Exp, 04-10-93 My Commission Expires:_#/7-¢7

by Meni
APPENDIX 13

Affidavit of Adan Alaniz
dated April 25, 1993

ne ene
County of Hidalgo

State of Texas

Affidavit of Adan Alaniz

1. My name is Adan Alaniz, and I am over the age of
eighteen and am competent to give this statement. I ama
resident of Edinburg, Hidalgo County, Texas. I own an.auto body
shop here, which I have owned since 1975.

2. I know Raul Herrera, the brother of Leonel Herrera, who
is on death row for the killing of two Cameron County police
officers. I first met Raul when were still kids, about 1966, at
the local golden gloves boxing club. I was a friend of his and
saw him regularly until he was killed. I also knew Leonel, but I
never spent much time with him.

3. After the crime involving the two police officers in Los
Fresnos, a few months before Raul was killed, I was with him on
several occasions when he spoke to ane about these killings. One
time we were driving around together in my car in Edinburg, and
he was talking about how he’d gotten a letter from his brother
Leonel. Then, more quietly, he said something about how Leonel
had no business being. in the pen for this crime. He said that.
Leonel ‘had nothing to do with the whole thing. Raul said he was
the one who shot the police officers.

4. Another time, only about two months before Raul was

killed, I was at Raul’s house and he was showing me some letters

saree nue, Cone
from his brother Leonel and from another death row inmate named
Cuevas. Once again, Raul said that his brother Leonel shouldn’t
be on death row, because he [Raul] was the killer.

5. When Raul told me he’d done these killings, I didn’t ask
him any questions or say anything to him, even though it seemed
like he wanted to talk about it. I didn’t want to know more
about it, because I was afraid of Raul and I didn’t want to get
involved in any way and have Raul coming after me. When he told
me these things, he didn’t say anything about how it happened. or
give any specifics, and I didn’t ask any questions.

6. Ever since I knew Raul he was always pretty
temperamental. He could get really violent all of a sudden, and
you never knew when it might happen. Raul had a reputation for

being real violent sometimes, and people were mostly scared of

hin.
7. XI xemember once when we were still younger when Raul and

several of us went down to Mexico to boys town. We were taking a
taxi back to the bridge and the driver was messing with us
somehow. Raul told him to stop the car, and then he pulled the
driver out and started beating him up real bad. He was kicking
him in the head, and I grabbed Raul and pulled him away and said
let‘s get out of here.

8. During the last years he was alive, Raul was acting
differently. It’s hard to describe, but he seemed to always have
alot weighing on his mind. All he wanted to talk about was his

brother Leonel. He would say how Leonel never had a chance, and

te
you could tell he felt bad about his brother.

9. I've never said anything to anybody about what Raul told
me about those cop killings. I know I probably should have, but
like I said, I just didn’t want to get involved, and no one ever

came and asked me about this.

Under penalty of perjury I hereby swear that the foregoing is

true and correct to the best of my information and belief.

| .
(278
Adan Alaniz

} Sworn to and subscribed before me

APPENDIX 14

ed . Affidavit of Juan Franco Palacios
dated December 10, 1990

CU ae

STATE OF TEXAS )
COUNTY OF HIDALGO )

AFFIDAVIT

Personally appeared before the undersigned officer duly
authorized by law to administer. oaths, Juan Franco Palacios,

deposes and says on oath:

1. BS we
I am Juan Franco Palacios. .I reside in Pharr, Texas.
2.
I was a friend of Raul Herrera, the brother of Leonel

| Herrera for many years. Raul Herrera was murdered about six

years ago.
3.

Several years ago Raul Herrera and I were both locked up in
the Hidalgo County Jail at the same time. I believe the year was
1984. Raul was in jail on some sort of charge from a domestic
Problem that happened between him and his wife Blanca. I
remember that at the time that we were both locked up together,
Raul had a broken leg and he was wearing a cast. ;

4. :

Raul was extremely depressed when we were in the jail
together... One night he came to me and he told me that he had
many things weighing very heavy on his mind and he needed to free
himself of that. He then told me that he is the one who should

be having a death sentence and not his brother Leonel: He told

me that he, Raul, was the one that killed police officers Rucker

and Carrisalez and not his brother Leo.
Sy
I swear under pain and penalty of perjury that the above

statement is true and correct.

Further affiant saith not.

Secon api
JAUN FRANCO PALACIOS
==/ Sworn te,and a before me :
this [2 day of - 2 » 1990, SYLVIA A. GUEVARA
i Notary Public
STATE OF TEXAS
~L. bud My Comm. Exp. SEPT 20,
NOTARY) PUBLIC

may.
APPENDIX 15

Affidavit of Jose Ybarra, Jr.
dated January 9, 1991

astern:
|
| | Sade oD Texar

t

“ Coonty Sf Cameron
1

AMdaut of bse Ybarra Jumor

. LL My name es Jose Ybarra Jo, | currentl reside on Mesquite Reed, wn
Monte Alte, Texas. Lam 43 years old. | attended yuntor high schoo! uth Raoul
‘Herrera and Leonel Herreca in Ecinbueg, “Texas.

2. In the summer J 1983, Tecan into Raoul Herrera outnde af the Ler
Vegas Sovnge, whieh is located on Fanboy. Texas. I tomediately netead thet
he looked very Sstubed. As | approached himy he told me-theet be tone the wie
whe had killed the roo cops. Because he looked so disturbed and upret, | became
nervous and conhaved past hin wrto athe club. That var the har time | saws
Racol Herrera.

£3. Uhwe read the Pregong affidaert, and sirear under peraleter & peryory
thar es tree and correct.

Jere Ybaren Je

Swsorn to and subscetbed before me

| thes 2 dong of tonenty tat

Notary POSLIC

APPENDIX 16

Indictment of Leonel Herrera
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS

July

THE GRAND JURORS, for the County of Cameron, State aforesaid, duly organized as such at the
Term,A,D.19 81, of the 107th Judicial District Court re

sxid County, upon their oaths in said Court, present that LEONEL TORRES HERRERA

on or about the 29th day of September A.D One Thousand Nine
Hundred and Eighty-one ‘and anterior to the presentment of this indictment, in the County of
Cameron and State of Texes, did then and there unlawfully ¢ intentially and knowingly cause the
death of ENRIQUE CARRISALEZ, by shooting him with a firearm, the said ENRIQUE
CARRISALEZ being then and there a peace officer, to-wit, an officer of the Los
Fresnos, Texas Police Department, acting in the lewful discharge of an official duty,

and the Defendant, LDONEL TORRES HERRERA, then and there, knowing that ENRIQUE

CARRISALEZ was a peace officer,

against the peace and dignity of the State.

APPENDIX 17

Verdict Form -- Conviction of Capital Murder
dated January 20, 1982

CAUSE NO. 81-CR-672-C

IN THE DISTRICT COURT OF

THE STATE OF TEXAS )
vs 3 CAMERON COUNTY, TEXAS
LEONEL TORRES HERRERA ) 197TH JUDICIAL DISTRICT

FORMS OF VERDICT

We, the Jury, find the Defendant, Leonel Torres Herrera, NOT

GUILTY.

Foreman

ee

We, the Jury, find the Defendant, Leonel Torres Herrera,

GUILTY OF CAPITAL MURDER AS CHARGED IN THE INDICTMENT.

Cid Rot

Foreman

. JAN 2.0 1982

Auge RORA Lk LA GARZA,
ca Al roperen oe

APPENDIX 18

Verdict Form -~ Sentence (Answers to Special
dated January 21, 1982

Issues)

eimai
CAUSE NO. 81-CR-672-C

THE STATE OF TEXAS ) IN THE DISTRICT COURT OF
vs : : CAMERON COUNTY, TEXAS
LEONEL TORRES HERRERA } 197TH JUDICIAL DISTRICY

ISSUE NO. 1

Do you find from the evidence beyond a reasonable doubt that
the conduct of the Defendant, Leonel Torres Herrera, that caused
the death of Enrique Carrizales, was committed deliberately and
with the reasonable expectation that the death of the deceased or

another would result?

Answer "Yes" or "No".

We,the Jury, answer: i

ISSUE NO. 2

Do you find from the evidence beyond a reasonable doubt that
there is a probability that the Defendant, Leonel Torres Herrera,

would commit criminal actS.of violence that would constitute a

continuing threat to society?

Answer "Yes" or "No"™.

We, the Jury, answer: £

Sprig sR

CERTIFICATE OF ANSWER

We, the Jury, return in open Court the above answers as our

answers to the issues submitted to! us and the same is our verdict

in the case. 7

ss

APPENDIX 19

Judgment of Conviction and Sentence
dated January 21, 1982

sas
CAUSE NO. 81-CR-672-C

THE STATE OF TEXAS ) IN THE DISTRICT COURT OF
vs 2 CAMERON COUNTY, TEXAS
LEONEL TORRES HERRERA ) 197TH JUDICIAL DISTRICT

JUDGMENT OF CONVICTION

BE IT REMEMBERED that on the 4th day of January, 1982, this
cause was called to trial and the State appeared by her Assistant
Criminal District Attorney, and the. Defendant, Leonel Torres
Herrera, appeared in person, his counsel by employment, the Hon.
games S. Bates also being present, and the Defendant, having been
duly arraigned, pleaded Not Guilty.and both parties announced
ready for trial; thereupon individual voir dire examinations of
jury panel began and continued through January 12, 1982, until a
jury of good and lawful persons, to wit: Ashton L. Barefoot and
eleven others, was duly selected, empaneled and sworn according
to the law and charged by the Court on separation; whereupon said
cause was recessed until January 13, 1982.

THEREAFTER, on January 13, 1982, the indictment was read to
the jury and the Defendant entered his plea of Not Guilty thereto
whereupon the State made the opening. statements and proceeded to
offer evidence through January 18, 1982 and rested.

WHEREUPON, the cause was recessed until January 19, 1982.

THEREAFTER, on January 19, 1982, Defendant introduced evi-
dence whereupon State offered rebuttal evidence. All parties
closed and the jury was sent home until January 20, 1982,
whereupon the charge was prepared and submitted to all counsel
and the case recessed until January 20, 1982.

THEREAFTER, On January 20, 1982, the Court charged the jury
as to the law applicable to said cause and argument of counsel

for. the State and the Defendant wad duly heard and concluded, and

the jury retired in charge of the proper officer to consider

56

soars
their verdict, and after ward was brought into open court by the
proper officer, the Defendant and his counsel being present, and
in due form of law returned into open court the following
verdict, which was received by the Court and is here now entered
upon the Minutes of the Court, to wit:

“We, the Jury, find the Defendant, Leonel Torres
Herrera, GUILTY OF CAPITAL MURDER AS CHARGED IN THE

INDICTMENT.
s/Ashton L. Barefoot

Foreman"

IT. IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court
that the Defendant, Leonel Torres Herrera, is guilty of the
offense of Capital Murder as found by the jury, and that said
offense was committed on September 29, 1981.

WHEREUPON the cause was recessed until January 21, 1982.

THEREAFTER, On January 21, 1982, the hearing on punishment
began and both the State and the Defendant offered evidence and
rested. WHEREUPON the Court charged the jury with additional
instructions as to the law applicable to punishment in said cause
and the jury retired to “consider its verdict as to Defendant's
punishment, and thereafter returned into open court in charge of
the proper officer to return the following verdict, which was

received by the Court and is here now entered upon the Minutes of

the Court, to wit:
"ISSUE NO. 1

Do you find from the evidence beyond a reasonable doubt
that the conduct of the Defendant, Leonel Torres
Herrera, that caused the death of Enrique Carrizales,
was committed deliberately and with the reasonable
expectation that the death of the deceased or another
would result?

Answer “Yes" or ac
We,the Jury, answer:: Yes

vou pace //7

ISSUE NO. 2

Do you find from the evidence beyond a reasonable doubt

that there is a probability that the Defendant, Leonel

Torres Herrera, would commit criminal acts of violence

that would constitute a continuing threat to society?
Answer "Yes" or "No".

We, the Jury, answer: Yes
CERTIFICATE OF ANSWER

"We, the Jury, return in open Court the above answers as our
answers to the issues submitted to us and the same is our verdict

in the case.

s/Ashton L. Barefoot
Foreman™

If IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the
Defendant, Leonel Torres Herrera, is guilty of the offense of
Capital Murder, as found by the Jury, and that. he be punished, by
reason of the answer ma¥de by the Jury to the Special Issues sub-

mitted, by death.
SIGNED FOR ENTRY: January “I! , 1982.

| FILED

TH

JAN 2 1 1982
AURORA Le LA GAR.
‘ Diet Tourt, Curuten Colney, Tele
. aval Ji veer
7 =

APPENDIX 20

Order Fixing Date of Execution of May 12, 1993

cn

™~ oo
Same
CAUSE NO. 81-CR-672-C
THE STATE OF TEXAS IN THE DISTRICT COURT OF
vs CAMERON COUNTY, TEXAS
LEONEL TORRES HERRERA 197TH JUDICIAL DISTRICT

ORDER FIXING DATE FOR EXECUTION

The Order Fixing Date for Execution signed ‘for entry herein
on March 23, 1993, is hereby vacated. In its stead the following
order is hereby entered this 8th day of April, 1993:

In this cause the Defendant, Leonel Torres Herrera was sen-
tenced on quly 2, 1985, to death and the date of his execution
fixed for August 15, 1985. Thereafter, the execution was stayed
by the United States District Court for the Southern District of
Texas, Brownsville Division, pending a ruling by that Court on an
Application for Writ of Habeas Corpus filed by the Defendant.

Thereafter, the stay of execution was vacated by order of the
same United.States District Court for the souttiont District of
Texas, Broynsville Division, such order being affirmed by the
United States Court of Appeals, Fifth Circuit, and a Petition for
Writ Of Certiorari denied by the Supreme Court of the United
States.

Thereafter, on October 30, 1990, the date of the ‘execution of
Defendant was fixed by this Court for December 17, 1990.

Thereafter, on December 12, 1990, a subsequent Post
“Conviction Application for Writ of Habeas corpus was filed by the
Defendant; and this Court on December 13, 1990, modified its
order of October 30, 1990, fixing a new date of execution for
January 23, 1991. .

‘ Thereafter, on January 17, 1991, a stay of execution was
granted Defendant pending further order of the Texas Court of
Criminal Appeals. .

Thereafter on May 29, 1991, in a per surian | opinion the Texas

Court of Criminal Appeals, au! relief sought by Defendant was

denied.
Thereafter, on September 18, 1991, the Court of Criminal

Appeals denied Defendant’s Motion for Rehearing; and
Thereafter, on January 3, 1992, the Mandate of the Court of

Criminal Appeals was issued by the Clerk of such Court commanding

that the Order of such Court be recognized, obeyed, and executed.

Thereafter, om January 13, 1992, in obedience’ to said
Mandate, the date of the execution of the Defendant was fixed by
this.Court for February 19, 1992.

Thereafter, the execution date of February 19, 1992, was
vacated by the Texas Court of Criminal Appeals by its per curiam
order of February 19, 1992.

Thereafter, on March 9, 1992, the date of the execution of
the Defendant was fixed by this Court for April 15, 1992.

Thereafter, on April 13, 1992, the execution date of April
15, 1992, was vacated by the Texas Court of Criminal Appeals
pending the action of the United States Supreme court upon Cer-
tiorari to the United States Court of Appeals for the Fifth
. Circuit. ' ae

Thereafter, the United States Supreme Court by its opinion
delivered January. 25, 1993, affirmed the Judgment of the United
states Court, of Appeals for the Fifth Circuit’ and the Judgment of
this Court, Herrera v Collins No. 91-7328. .

Thereafter, on March 22, 1993, the Texas Court of Criminal
Appeals vacated its April 13, 1992, stay of execution; and, the
State by its motion filea herein March 22, 1993, moved the Court

to set an execution date herein.

The motion of the State is granted.

Therefore, IT IS THE ORDER OF THE COURT that the Defendant,
Leonel Torres Herrera, who has been adjudged guilty of Capital
Murder, and whose punishment upon the answers of the jury to
Special Issues has been assessed at death, shall at anytime
before sunrise on May 12, 1993, in accordance with the execu-
tion précedures. determined and supervised by the Director of the
Texas Depattment of Criminal Jystice, Institutiénal Division, be
caused to die by intravenous injection of a substance or substan-

ces in a lethal quantity sufficient to cause the death.

The Clerk of this Court shall issue a Warrant of Execution in
accordance with Art. 43.15 of the Texas Code of Criminal
Procedure directed to the Director of the Texas Department of
Criminal Justice, Institutional Division. Such warrant of execu
tion shall be accompanied by a certified copy of this Order and
shall be the authority of the Director of the Texas Department of
Criminal Justice, Institutional Division, to carry out the sen-
tencé of this Court. ol

Sibned for entry this 2 day of April, 1993.

A pw

Judge Presiding

APPENDIX 21

Jim Mattox Letter to the Editor,
New York Times, April 3, 1992

vali sc tamaaaaataeaat cai:
ms

THE NEW YO;

“ te Vo

ek Times EDITORIALS/LETTERS #RiDAY, APR

IL 3, 1992

On Not Executing an Innocent Prisoner

To the Editor: .

“Can They Execute the Innocent?
Probably” (Op-Ed, March 11) by Jor-
dan Steiker discusses the Supreme
Court's decision to hear the case of
Leonel Herrera, who is on death row
in Texas, The Court has agreed to
consider whether or not the Constitu-
tion prohibits the execution of an in-
nocent person. Professor Steiker sug-
gests, surprisingly, that the Court
may answer the question “no.” —-

It was my responsibility as Attor-
ney General for Texas from 1983 to
1991 to enforce our judgments of
death. During my tenure, more than
25 people were executed by Texas.
Professor Steiker's tentative progno-
sis troubles me deeply.

My_worst nightmare would have

been _the execution of an innocent
person. As one who had to agonize

over this prospect, I believe the prop-
er interpretation would be that our
Bill of Rights is intended to prevent
such an obvious travesty of justice.

I favor executions for people who
deserve such punishment, but I do not

think people should be put to death
before they have an opportunity to
present nonfrivolous claims. It was
my policy as Attorney General not to
Oppose a stay of execution when such
claims were being considered by the
courts. A claim of innocence, espe-
cially in a capital case such as Mi
Herrera’s, is perhaps the most legit
mate reason to grant relief. H

Executing someone with a plausi-:
ble claim of innocence is abhorrent to

i

- any standard of decency marked bya

civilized society. No person, including
Mr. Herrera, should be executed
while any such claims remain unre-
solved. To the degree Professor
Steiker’s fears are formed by the
Court’s legitimate impatience. with
seemingly interminable capital ap-
peals, that impatience must be tem-
pered when a claim of actual inno-
cence is presented: For the Supreme
Court to write otherwise would be a |
sad day for those who favor, as well
as those who oppose, capital punish- |
ment in this country. Jim MATTOX
Austin, Tex., March 19, 1992
on

APPENDIX 22

Statement of Sen. Howard M. Metzenbaum
introduction of bill to overturn Supreme Court Herrera Decision
dated January 27, 1993, and copy of bill

bean
-US. Senator Howard M. nam

Lebar and Humen Regourcae

_METZENBAUM 22355

Subcommittes on Anticrust

(3) of Ohi [9] Subcommittee on Lebar

Statement by Sen. Howard M. Matzenbaum
Om bill to overturn a VEIT paost Herrera Decision
1/27,

AFTER 200 YEARS AS THE WORLD'S GREATEST CONSTITUTIONAL
DEMOCRACY, I BELIEVE AMERICANS AGREE ON ONE SIMPLE PRINCIPLE -
THE CONSTITUTION FORBIDS THE EXDCUTION OF INNOCENT FEKOPLE.
APPARENTLY, A MAJORITY OF THE SUPREME COURT DO NOT SHARE THAT
VIEW. ON MONDAY, THE.COURT DECIDED THAT OUR CONSTITUTION DOES
NOT PROHIBIT THE EXECUTION OF A PERSON WHO EAS BEEN CONVICTED AND
SENTENCED TO DEATH, BUT WHO MAY BE ABLE TO PROVE HIG OR HER
INNOCENCE WITH NEWLY DISCOVERED EVIDENCE.

WHETHER YOU SUPPORT OR OFPOSE THE DEATH PENALTY, SURELY WE
ALL AGREE THAT OUR LAWS MUST REQUIRE THAT EVIDENCE OF GUILT BE
SOLID AND RELIABLE BEFORE THE STATE CARRIES OUT AN EXECUTION.
WHEN NEWLY DISCOVERED EVIDENCE COMES FORWARD THAT INDICATES A
DEATH ROW INMATE IS PROBABLY INNOCENT, OUR FEDERAL COURTS SHOULD

AND MUST INTERVENE TO STOP THE EXECUTION.
I AM AFFALLED THAT THE SUPREMG COURT’S DECISION UNDERMINES
TRIS PRINCIPLE. THE COURT HELD THAT A STATE PRISOWER WHO CLAIMS-

HE HAS NEW EVIDENCE OF HIS INNOCENCE IS NOT ENTITLED TO HAVE THAT
THE COURT STATES THAT

CLAIM REVIEWED IN A FEDERAL PROCEEDING.
SUCH A CLAIM SHOULD BE RAISED WITH A GOVERNOR IN A PETITION FOR
IN OTHER WORDS, THE DOORS TO THE COURTHOUSE

EXECUTIVE CLEMENCY.

ARE CLOSED. PERSONS FACING EXECUTION WHO HAVE NEW EVIDENCE OF
THEIR INNOCENCE ARE FORCED TQ RELY ON THR MERCY OF A SINGLE MAN
OR WOMAN TO SPARE THEIR LIVES, JUST LIKE THE.DEFEATED GLADIATORS

IN ANCIENT ROME.

THE GOVERNMENT’S EXECUTION OF AN INNOCENT PERSON IS THE
ULTIMATE ARBITRARY DEPRIVATION FROM WHICH ONE NEVER RECOVERS. .
JUSTICE BLACKMUN MADE THE SIMPLE BUT OBVIOUS STATEMENT IN HIS
STRONG DISSENT THAT “THE EXECUTION OF A PERSON WHO CAN SHOW HAT
HE I$ INNOCENT CONES PERILOUSLY CLOSE TO SIMPLE MURDER.°

THIS GREAT NATION SHOULD REJECT CHIEF JUSTICE REHNQUIST’S
CONCLUSION THAT. WE SHOULD RELY ON THE GRACE OF ELECTED OFFICIALS

TO GRANT CLEMENCY TO INNOCENT PERSONS ON DEATH ROW. CONGRESS
MUST ACT QUICKLY TO ASSURE THAT A PRISONER SENTENCED TO DEATA IS

ENTITLED TO RAISE A CLAIM OF ACTUAL INNOCENCE, BASED ON NEWLY
aut. S 7

te PROBES
DISCOVERED RVIDENCE, IN A FEDERAL PETITION. ALTHOUGH I
UNDERSTAND THE DESIRE FOR FINALITY OF CRIMINAL JUDGMENT:

.

EXECUTIONS WITHOUT ADEQUATE SAFEGUARDS ARE UNACCEPTABLE IN A
CIVILIZED SOCIETY. CONGRESS MUST ACT NOW TO PREVENT THE
EXECUTION OF SOMEONE WHO CAN PROVE HIS INNOCENCE.

- TODAY, I PLAN TO INTRODUCE LEGISLATION WHICH ALLOWS A
PRISONER SENTENCED TO DEATH TO RAISE IN FEDPRAL PROCEEDINGS THE
CLAIM OF ACTUAL INNOCENCE BASED ON NEWLY DISCOVERED EVIDENCE.
CONGRESS HAS ALWAYS HAD THE POWER TO DETERMINE WHICH TYPES OF
CASES ARE APPROPRIATE FOR FEDERAL COURT REVIEW. THIS BILL MAKES
IT CLEAR THAT FEDERAL JUDICIAL REVIEW WILL BE AVAILABLE {06 A
DEATH ROW INMATE WHO HAS NEW EVIDENCE OF HIS OR HER’ INNOCENCE
THAT IS BOTH SOLID AND RELIABLE. ‘THE BILL RELIES UPON A STANDARD
OF REVIEW SUGGESTED oF JUSTICES BLACKMUN, STEVENS AND SOUTER IN

THEIR DISSENT.

Tt IS IRONIC, AND INDEED ALMOST TRAGIC, THAT THE SUPREME

COURT WOULD ANNOUNCE THIS CALLOUS AND UNFAIR DECISION JUST ONE
DAY AFTER THE DEATH OF THURGOOD MARSHALL. JUSTICE MARSHALL WAS

THE MOST TENACIOUS, PERSISTENT, AND EFFECTIVE CHAMPION OF EQUAL
iS EVER TO SIT ON THE SUPREME

JUSTICE AND FUNDAMENTAL FAIRNES:
COURT. HE WOULD NOT FOR A MOMENT TOLERATE THE OUTCOME OF THE

HERRERA CASE.
A DECISION WHICH SUGGESTS THE SUPREME COURT’S WILLINGNESS TO
CONDONE TRE SXECUTION OF INNOCENT PEOPLE, ONLY UNDERSCORES HOW

MUCH WE WILL MISS THURGOOD MARSHALL. THE pEcarEgs ALSO I5 A
WE ALL MUST WORK TO ENSURE THAT THIS SUPREME COURT

REMINDER THAT
DOES NOY SUCCEED IN ITS EFFORT TO DISMANTLE HIS LEGACY.
APPENDIX 23
Letter from Mark Olive to Texas Board of Pardons and Parole
on behalf of Leonel Herrera dated May 4, 1993

MARK EVAN OLIVE
Attorney at Law
2804 Glennis Court
Tallahassee, FL 32304

May 4, 1993

Texas Board of Pardons and Parole

P.O. Box 13401
Capitol Station
Austin, TX 78711

Dear Board Members:

Leonel Herrera, a Texas death-sentenced inmate, is scheduled to be
executed by the State of Texas on May 12, 1993. Through this
letter, Mr. Herrera petitions this Board for a recommendation that
the Governor grant a reprieve and/or a commutation of sentence for

Mr. Herrera.!

In accordance with Section 143.42 of the Texas Code, Mr. Herrera

_ Shows the following:

1.) . The name of the Applicant is Leonel Torres Herrera. He
is a forty-three year old Mexican American from Edinburg, Texas.
He is indigent and currently incarcerated on death row at the Ellis
One Unit of the Texas Department of Criminal Justice, Institutional
Division in Huntsville, Texas;

2.) The Applicant's agents for-the purpose of the instant
request are the following attorneys: Mark E. Olive, Robert M.
McGlasson, and Phyllis L. Crocker;

3.) Certified copies of the indictment, judgment, verdict,

'Mr.. Herrera is innocent of the offense for which he was
convicted. That is the issue he brings to this Board. See
Numbered Paragraph 8, infra. An eyewitness to the shooting, and an
alibi witness, have taken and passed lie detector tests. which show
the Applicant's innocence. The eyewitness was truthful: when he
said that he saw his father commit the offenses, and Leonel Herrera
was not present. The alibi witness was truthful when she said that
Leonel Herrera was at her home asleep at the time of the offenses.

_This.-evidence..was not presented to the Courts or the Governor

previously. The lie detector tests were administered within the
last five (5) days.

.and sentence in this case, as well as official documentation of the

scheduled execution date, will be supplied;?

4.) The offense for which the Applicant is scheduled to be
executed occurred on September 29, 1981. On that date, two law
enforcement officers were shot within several minutes of each
other. Department of Public Safety Officer David Rucker was shot
and killed on FM 100 between Los Fresnos and Port Isabel, Texas.
Los Fresnos Police Officer Enrique Carrisalez was shot thereafter
when he stopped a car for speeding just outside of Los Fresnos.
Office Carrisalez died nine days later.

5.) Applicant's trial began on January 13, 1982. On January
20, 1982 the jury found him guilty of capital murder. The
punishment phase occurred on January 21, 1982. An appeal was filed
in the Texas Court of Criminal Appeals, ‘ana that Court affirmed Mr.
Herrera's conviction and sentence on October 31, 1984. Herrera v.
State, 682 S.W.2d 313 (Tex. Crim. App. 1984). The United States
Supreme Court denied a Petition for Writ of Certiorari on May 28,
1985. Herrera v. Texas, 472 U.S. 282 (1985). Applicant filed a
petition for writ of habeas corpus in the Texas Court of Criminal
Appeals on July. 26, 1985. That Court denied relief on August 2,
1985. Mr. Herrera filed a petition for writ of habeas corpus in
the United States District Court for the Southern District of Texas
on August 7, 1985. That Court denied relief on October 23, 1989.
That order was affirmed by the United States Court of Appeals for

the Fifth Circuit on June 25, 1990. Herrera v. Collins, 904 F.2d
944 (5th Cir. 1990). The United States Supreme Court denied

Applicant's petition for writ of certiorari on October 15, 1990.
On December 12, 1990, Petitioner filed a petition for writ of
habeas corpus in the Texas Court of Criminal Appeals. That Court
ordered full briefing and heard oral argument, but denied relief in
a majority opinion filed May 29, 1991.

On February 16, 1992, Applicant filed a petition for writ of
habeas corpus in the United States District Court for the Southern
District of Texas. He showed that he had important and compelling
evidence of his innocence, and argued that because of his innocence
it would violate the United States Constitution to execute him.
The federal district court judge was concerned about the contents
of affidavits showing the possibility of the Applicant's innocence,
and granted a stay of execution so as to entertain the issue of
innocence. The State appealed that decision, and the United States

2Documentation of the judgment and the date of execution will
be supplied immediately. In addition, -undersigned counsel is
gathering information, including the polygraph reports mentioned in
footnote 1, supra, to submit to the Board. It is hoped that the

reports and affidavits will be submitted within two days. It is
‘certain that further supplementation of this application will

follow.

Court of Appeals reversed the district court judge. Collins v.
Herrera, 754 F.2d 1029 (Sth Cir. 1992). The Fifth Circuit held
that, based upon Supreme Court precedent, innocence did not provide
a basis for federal habeas corpus relief.

The United States Supreme Court granted the Applicant's
petition for writ of certiorari and addressed the issue of whether
the federal constitution prohibited the execution of an innocent
person. The Court held that it did not, Herrera v. Collins, 113
S.Ct. 853 (1993), and that the remedy for Applicant was clemency.

6. In prior proceedings, issues regarding the manner. in which °

the Applicant was convicted were presented to the courts. Included
in those claims for relief was a.) that the manner in which the
Applicant was identified as the culprit was unreliable;3 b.) that
it was improper to allow police officers to be jurors in the
Applicant's case, inasmuch as he was charged with a crime against

‘a police officer; and c.) that it was improper to conduct the

Applicant's trial in a courtroom in which uniformed, armeda, police
officers were in.attendance in great number. The Applicant
challenged his sentence of death because he was sentenced pursuant
to an unconstitutional sentencing scheme.

7.) The important issue before this Board is whether and how
to consider an Applicant's evidence of innocence. Mr. Herrera has
no other avenue for relief. The Supreme Court found that in all
but the rarest hypothetical cases, there is no constitutional
violation in executing someone who has been convicted of capital
murder and sentenced to death but whose guilt has been thrown into
question by evidence first disclosed after trial. The Court
recognized that judicial proceedings will not in every instance do
justice. "It is an unalterable fact that our judicial system, like

the human beings who administer it, is fallible." Herrera, supra, '

113 S.Ct. at 868. And in such instances, the courts may not have
the flexibility to remedy an injustice even though it is

recognized.

on these occasions, clemency proceedings must provide the
safety net. "Clemency is deeply rooted in our Anglo-American

‘tradition of law, and is_th istoric reme fo: reve:

miscarriages of justice where judicial process has been

exhausted.... Executive clemency has provided the ‘fail safe' in
our criminal justice system...." Herrera, supra, 113 S.Ct. 866,

868.

8.) Clemency is needed as a fail safe in Applicant's case.
Applicant can show that he could not have committed and that he did
not commit the offense. He can show who did commit the offense.

3courts have agreed that the identifications were unreliable,

‘but not so unreliable as to violate the constitution.

3

ee RI
This is the only body which can, by law, hear this claim.

9.) No court has listened to the Applicant's evidence of his
innocence, and the Supreme Court has written, in Herrera, that it
is this Board's responsibility to listen. Applicant has
significant proof of his innocence which the courts would not
consider; he alsc has dramatic new evidence that was never
presented to the courts. The evidence includes the following:

a. Four witnesses all attest that Leonel Herrera
did not commit the’ murder of the two law
enforcement officers in Cameron County. They
have. taken and passed polygraph tests designed
to test the truthfulness of their accounts.

1. Raul Herrera, Jr., whose testimony the
courts have refused to hear, has sworn that he
witnessed the. shooting deaths of Texas State |
Trooper David Rucker and Los Fresnos police
officer Enrique Carrisalez. Raul, Jr.,
stated, during his polygraph, that his father
Raul Herrera, not Leonel Herrera, committed
the murders for which Leonel was tried. He
stated that he witnessed the shootings with
his own eyes and ears. He and his father were
in Leonel's automobile at the time that Raul,
Sr., committed the crimes. These statements
by Raul, Jr., were found to be truthful by the

expert polygrapher.

2. and 3. Antonio Rivera and Jessie Gomez
have both sworn and told the polygraph
examiner that Raul Herrera confessed to each
of them on separate occasions, immediately
after the offense and before the trial. Raul,
Sr., said that he, not Leonel, killed Rucker
and Carrisalez. The ‘polygraph expert
considered their answers to be truthful.

4. Finally, Norma Rodriguez, Leonel Herrera's
sister, has sworn that Leonel was at her house
at the time of the shootings. Her brother
Raul, Sr., threatened her to keep quiet and
told her to let Leonel take the blame.
Polygraph examiner Ernie Hulsey has stated in
a written report that his test results confirm:
the truthfulness of Norma's account, as well
as the truthfulness of the other three

Nee Ge Ee
witnesses.

b. Hector J. Villarreal, an Edinburg attorney and
former state district judge, has also provided
an affidavit in which he states that he
represented Raul Herrera on an (unrelated)
charge of attempted murder. During the course
of confidential attorney-client communication,
Raul Herrera confessed to him that he
committed the murders.

In conclusion, and in accordance with Texas law, the Applicant is
not presenting technical questions of law which are properly .
presented via the judicial process. Instead, he seeks a meaningful
review of his compelling new evidence of innocence. In order to
present such evidence in an orderly and meaningful manner,
Applicant requests that this Board recommend a reprieve and or

clemency.

As noted, the Applicant wishes to supplement this application over
the next several days. He will submit the affidavits, the
polygraph reports, and other matters to the Board as soon as

possible.

Sincerely,

ac

Mark E. Olive
(904) 644-7710

‘These witnesses had not been. submitted to polygraph
--@Xaminations at the time of the United States Supreme Court
opinion. The lie detector test information is dramatic new

-evidence of innocence.

APPENDIX 24
Recent grants of clemency from other states
based on doubts about guilt

MAY-G6-1993 14:55 FROM APP DEF RESOURCE CTR. To 97139222733 . P.@2/68

STATE OF NORTH C..ROLINA
OFFICE OF THE GOVERNOR
RALEIGH 27603-8001

JAMES G. MARTIN
GOVERNOR

January 13, 1992

Malcolm Ray Hunter, Jr., Esquire
Henderson Hill, Esquire

Office of the Appellate Defender
Post. Office Box 1070

Raleigh, North Carolina 27602

RE: Anson Avery Maynard
Dear Messre. Hunter and Hill:

Enclosed please find a copy of the Commutation Order executed
by the Governor on January 10, 1992 concerning the above-
referenced inmate.

Very truly yours,

lad Fleitgs

Mark Martin
Legal Counsel to the “Governor

MM/sl
Enclosure

Be TT ese

Rte

on

MAY-26-1993 14:55 FROM APP DEF RESOURCE CTR. To Bi 3222733 P.a3 88

. £4 %
aoe ne +e ba ge

JAMES GC. MARTIN
COVERNOR

COMMUTATION ORDER

RE: ANSON AVERY MAYNARD
#30342-43

WHEREAS, the defendant, Anson Avery Maynard, was convicted of
murder in the first degree by unanimous verdict of the jury, duly
xeturned at the 30 November 1981, Criminal Session of the Superior

Court of Cumberland County, North Carolina, in case number

81-CRS-35849, and the jury having recommended the punishment of
death; and

WHEREAS, judqments wexe entered by the superior court on
December 11, 1981 and thereafter, that Anson Avery Maynard be
sentenced to death and that the Sheriff of Cumberland County,

North Carolina, deliver him to the Waxden of the State's

Penitentiary at Raleigh, North Carolina, where the Warden would = a

cause him to be put to death as by law provided; and
WHEREAS, it has been made to appear to me hat this case is

‘one fit: for the: exercise of ‘Executive ‘Clemency; o
NOW, THEREFORE, I,: dames G. Martin, Governor of: the State of:

North Carolina, ‘by virtue of the power and -authority vested in me. -

MAY-26-1993 .14:55 FROM APP DEF RESOURCE CTR. To S71sS222733— P48

THR me ane

by the Constitution of the State of North Carolina, do by these
presents COMMUTE Anson Avery Maynard’s sentence of death to a
sentence of imprisonment for life, without benefit of parole but
subject to such other clemency as may be granted by the Governor.

An original of this order shall be delivered forthwith to the
Waxden of Central Prison, Raleigh, North Carolina, the Secretary
of the Department of Correction and Anson Avery Maynard. A
certified copy of this order shall be delivered to the Clerk of
Superior Court of Cumberland County for ‘filing. Copies of this
order shall be delivered to the Attorney General, the District
Attorney for the 12th Prosecutorial District and Counsel for Anson
Avery Maynard.

Anson Avery Maynard is committed to the custody of the
Department of Correction for the remainder of his life, subject to
the provisions herein.

Done in the Capital City of Raleigh, this 10th day of

January, 1992.

MAY-@6-1993 14:55 FROM PP DEF RESOURCE CTR. TO 87135222733 P.gsea

James G. Martin

, Governor
State of North Carolina
Office of the Governor
Release: Date:
Contact: Distribution:

GOVERNOR COMMUTES ANSON MAYNARD‘S DEATH SENTENCE
TO LIFE WITHOUT PAROLE

RALEIGH -- The following is Governor Jim Martin‘s statement concerning
the commutation of Anson Avery Maynards death sentence to life in
prison without parole.

“After lengthy, prayerful consideration, I have decided to commute the
death sentence of Anson Avery Maynard to life imprisonment without
parole. Anson Maynard was convicted of murdering Stephen Henry on
June 13, 1981, in Fayetteville, North Carolina. After all appeals
were exhausted, the date of January 17, 1992, was set by the courts for
the State to carry out the death sentence, and a written appeal for
clemency was received by me as Governor of North Carolina on November

22, 1991.

"I have heard attorneys and witnesses on both sides, as well as family
members of both Stephen Henry and Anson Maynard. I have sifted
through a complex mixture of ambiguous evidence, some of which was not
available fer presentation to the jury which convicted Anson Maynard,
and some of which may not have even been admissible in a court of

law.

"No physical evidence ties Anson Maynard:to the scene of the crime or
to the commission of the crime. The only direct witness to testify
that Maynard pulled the trigger was Gary Bullard, an admitted

| participant in. the murder who was given immunity from prosecution in.
return ‘for his evidence and testimony against Maynard. -Given the
information.available at the time, the jury accepted Bullard’s version
over Maynard’s.

"after extensive review of all of the claims and counterclaims, Iam
not convinced ‘that Anson Maynard. pulled.:the -trigger::to.:kill Stephen.
Henry. Nor am I convinced that Anson Maynard is-totally innocent.

- more =

Governor's Communications Office
Srate Capitol, Raleigh, NC 27603-8001
(919) 733-5612 - Toll Free {-800-662-7005
| FAX 019) 733-5166

An Equal Oppeccunite (A flirnatere Action Emplore?

We, oe

+ hielibanai odie,
MAY-@6-1993 14:56 FROM APP DEF RESOURCE CTR. To Sriss222733— P68

"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 wy office
is to decide that the State of North Carolina will not carry out the
execution of Anson Maynard. Because it is not clear on the basis of
all I have read and heard that Anson Maynard was not the murderer, I
conclude that he should remain in prison for the rest of his life.

"The record is clear that the courts have done their duty under the
powers and procedures of the courts. Law enforcement has done its
duty to use the evidence available to support a conviction. The post
conviction defense counsel has worked hard to find every shred of
evidence to support the petition for clemency. The Attorney General's
office has worked hard to uncover any information or response
supporting the original verdict and sentence. I have done the best I
can to reach an understanding of what truth can be found in all this.

"I want it clearly understood that my actions do not indicate any
tolerance on my part, or of the State of North Carolina, of murder in
this state, especially the murder of a person who has indicated a
willingness to assist the state through testimony against another
person. The willingness of citizens to offer testimony is essential to
the prosecution of the guilty and it is a function of government to
protect witnesses from harm. Where the evidence is clear, we should
not hesitate in carrying forth swift, sure justice, including

execution,

"I appreciate the efforts of the jury to arrive at the truth. There
was much conflicting evidence presented to them in 1981 and we all
respect the decision they reached at that time based upon what they saw
and heard. It is only with the benefit of additional time, and with
information that they may not have had available, that my decision

modifies their sentence.

“There is reasonable doubt. in my mind as to whether the degree of
invoivement. of Anson Avery Maynard in the murder of Stephen Henry is
sufficiently clear to justify the death penalty. For that reason, I
have commuted Anson Maynard’s death sentence to life in prison without
parole. It is for cases like this that the power of. clemency is given

to the governor.

MAY-@6-1993 14:56 FROM APP DEF RESOURCE CIR. To 87139222733 P.677@8

Herbert Russell Bassett was brought to trial in the Circuit
court fer the County of Hényice, Comonwealth of Virginia, ia
August of 1980 for the capital murder and robbery of Albert Lea
Burwell, Jxy., On August 22, 1980, Hexbert Russell Bassett wag
convicted, inter alia,.of ene count of capital murder in the
commission of a robbery and for this crime the jury fixed his
punishment at Seath. “On November 20771980, Judga Robert M.
Wallace accepted the jury's judgment and entered an order
sentencing Kerbhert Russell Bassett to death. Herbert Russell
Bassett has now petitioned me to commute his sentence of death,

In accordance with the powers granted to me as Governer of
“Virginia undex article v, Section 12 of the Constitution of
Virginia, I, Lawrence Douglas Wilder, do hereby reach the following
conclusions and grant the following commutation of sentence:

It is axiomatic that the ultimate sentence of death must: be
applied solely to those who have been demonstrated beyond a
reasonable doubt to have committed the crime for which they are ,
Gharged. The test to be applied is not-whether one believes that ‘
the accused committed the crime in question, but whether one holds
that belief without the presence of any reasonable doubt. After
a thorough review of the evidence, including evidence presented to
mea by counsel for Herbert Russell Bassett which was not hefore the
jury when they rendered their verdict, while well reasoned and
conscientious minds may differ, I cartiet in good conscience erase
the presence of a reasonable doubt and fail to employ the powers
vested in me as Governor to intervene.

HOW THEREFORE, in light of the foregoing I do hereby grant.
Herbert Russell Bassett a commutation of the sentence ef death to -
‘idte inprisonment without parole. oo 4 ‘

In taking this actien; it is not my intention to convey an-

impreséion that an argiiment cannot be made that there. is

i significant evidence ta support the verdict that wes imposed -upon
Lt Herbert Russell Bassett. Accordingly, no one can fault these who
pes have xeached a conclusion cirferent than amine. This includes“shose
whe, Hava prosecuted this Gase with vigor, and I commend them for

MAY-26-1993 14:57 FROM APP DEF RESOURCE CTR.

their Sonscientious, steadfast end dedicated loyalty to their
obligation to uphold the law of thig. Commonwealth, — Serena *

Given under my hand and the Lesser Seal. of the Commonweaith

a& Richmend, this 23rd day of Janvary in the year of our Lord one
thousand nine hundred and’ ninety-one and in the 216th year of the

Commonwealth of Virgsnia.

Bg ~

Governor of Virginia

By the Governor:

__) Secxetary of the Commonwealth

tees, “os TOTAL P.ge
°F ai

6ros THY .i4 e5 Ves SOaLITION gn. a: & Pe P.ea2

is a copy ot the Order of Commutation entered by Governor
¢ Douglas Wilder on behalf of Herbert RuSsel} Bassette]

.WHOM THESE PRESENTS SHALL COME -- GREETING:

wasell Bassette, also known as, Herbert Russell
ought to trial in the Circuit Court for the county
(ef Commonwealth of Virginia, in August of 1980 for the

Herb and robbery of Albert Lee Burwell, Jr. On August
t986; Herbert Russell Bassette was convicted, inter ote of

nit. af éapital murder in the commission of a robbery an for

this “Grim @ jury fixed his punishment at death. On November 19,
1380 a Probert M. Wallace accepted the jury's judgment. and
ente, ‘ofder sentdncing ‘Herbert Russell Bassette fo death.

Herbert Rugseil Bassette has now petitioned mé to commute his
sentgnce ‘of death. :

+h rn accprdance with the powers granted to me as Governor of
ies: nia - uhdér article Vv, Section 12 of the Constitution of
nia,- Lawrence Douglaa Wilder, do hereby reach the following

equpione! ahd grant the following commutation of sentence: °

He oth is, axiomatic that the ultimate sentence of death must be
Ip. fea 2 $0, ely te those who have been demonstrated. bayond a
_ Eapaghable -aduht to have committed the crime for which they are
arged:; the-test to be applied {s not whether one believes that
the 4écused, cémmitted the crime in question, but whether one holds
that eliaf without the presence of any reasonable doubt. After
a, thofough review of the evidence, including evidence presented to
pines “for Hexbert Russell Bagsatte which was not before the
jury 7 dass wendered their verdict, while well reasoned and
srndigneice s'minds may differ, I cannot in good. consciéfce erase
Beesence 6€ a reasonable doubt and fail to fapley ‘the powers
weet in ne as Gavernor to intervene.

ibe ry SEEREFORE, in light of the foregoing I do hereby grant
ug wees Russ6)) Bassetta a commutation of the sanpaice ot: séath to

iif ingrisenache’ without parole.
ne

‘! In taking this action, it is not my intention to convey: an

impression that an argument cannot be made that there is

significant evidence to support the verdict that was imposed upon

Herbert Russell Bassette. Accordingly, no one can fault those who

hay *teache: Gonclusion different than nine. _ Tas | includes those .
# ;

SF Reman ain Rs «|
AY-— G-9S° THY 14:06 VA. COALITION ON FJ. & Ps. PL as

who have prosecuted “this. case “with vigor, and I commend them for
their; :consGientious, steadfast and dedicated loyalty to thair
obligation ' ‘to upheld the law of this Commonwealth.

Given -under my hand and the Lesser Seal of the Commonwealth
at Richmond, this 23rd day of January in the year of our Lord one
thougand nina hundred and ninety-two and in the 216th year of the
Commighwealth of virginia.

Governor of Virginia

“a
\
By the Governor:

:  Bedeetsry ef the Commonwealth

MAY-@6-1993 15:@7 FROM GERALD T. ZERKIN TO 17135222733 P.@2

- COMMONWEALTH of VIRGINIA
, Executive Department

TO-ALL WHOK THESE PRESENTS SEALL COME ~= GREETING:

In accordance with the powers granted to me as Governor of
Virginia under Article Vv, Section 12 of the Constitution of
Virginia, I, Lawrence Douglas Wilder, do hereby reach the following
conclusions ang render the following conditional pardon:

Joseph %. Giarrateno, Ir., was brought to trial in the Circuit :
Court of the City of Norfolk for burglary while armed with a deadly t
weapon, rape, first degree murder in the commission of or
subsequent to rape and first degree murder. There is evidence to
reflect that sometime prior to trial, Joseph M, Giarratanc, Sx.,
was offered # plea bargain in which in exchange for a plea of
guilty te some or all of the aforementioned offenses, the
Commonwealth's Attorney would recommend two life wxentences and a
third sentence of 50 years. Joseph XM. Giarratano, Jr., chose to
present a plea of not guilty based upon an insanity defense, and
further confirmed in an agreement with his attorney that the facts
of the case were much the same as his statement to the Norfolk

Police Department. -° :

On May 22, 1979, Joseph M. Glarratano, Sr., was found guilty
of the rape of Michelle Kline, of capital murder for the death of.
Michelle Kline and of first degree murder for the death of her
mother, Barbara Xline, in a bench trial before The Honorable Thonas—
R. MeNamara, Judge of the- Circuit Court of the city of Norfolk. ©.

After. the -review. of a. presentence report, . Joseph
Glarratano,. Sx., was sentenced by the court on August -277°:29%
death for the capital murder conviction, life ‘inprisonment::-for the
first degrée ‘murder conviction and 30 years for the rape -
conviction. > y : . : :

-)- §4neé the. date of. the verdict and sentencing by the court,
Joseph M. Glarratano, Jr., has been involved in numerous appeals,

Ww

MAY-@6-1993 15:8 FROM GERALD T. ZERKIN To 17135222733 P.as

“Joseph M. Giarratano, Jr.
‘Page Two of Six

+

both within the courts of the Commonwealth and the tnited states.
No court before which an appeal has been presented has granted the
relief Joseph M. Giarratano, gr., sought. :

On Sanuary 22, 1991, upon the Commonwealth's motion, The
Honorable Thomas R. McManara, Judge of the Circuit Court of the
City of Norfolk, ordered that Joseph M. Glarratanc, gr., be
executed on February 22, 1991, and that the sentence be carried out
“at such time of the day as the Director of the Department of .

Corrections shall fix."

Joseph K. Giarratano, Sr., through counsel, has petitioned ny
Office with the request that I invoke the clemency powers granted
to me under Article V, Section 12 of the Constitution of Virginia
and that he be granted clemency to the extent that I commute his
Geath sentence conditioned on the right of the Commonwealth to

retry hin.

ZI have thoroughly reviewed the evidence in the case, the
briefs of counsel for the Attorney General-and defense counsel.
It is also a matter of common knowledge that I have been subjected
to significant pleas from across the United States and other parts
of the world to grant the request of Joseph M. Giarratano, Jr.
While they have been gincere in their expressions ef concern on
behalf of Jorzeph &. Giarratano, Jr., the overwhelming majority

- acknowledge that they do not enjoy a grasp of the specific facts
tn the case. I en the other hand do, as I must. Accordingly,
while I appreciate these expressions of opinion, X must be ever
mindful that the powers granted te the Governor by the Constitution
cannot be implemented based upon popular appeal, nor can such
decision be implemented in a manner that sacrificially abridges the
law. To the contrary, it must emanate from a- thorough review of
each case, be: based upon the evidence presented and rest its
authority upon established principles of law. Moreover, a governor
must remain cognizant of the precept that the powers granted must
be carefully husbanded in order to assure that they not neet with -

abuse. |

The framers of the Constitution ef Virginia and the citizen:
who approved its passage into Jaw have been deliberate 34
establishing the breaéth of. the Governor's clemency povers:
relief that Joseph x. Giarratano,-Jr., seeks: from the Governo:
unprecedented. ‘There-has been no evidence forthcoming from counse
for Joseph KM. Giarratano, Tr., nor am I aware of any instance ~ 41
which any Governor in the United States or any United States:
President has ever extended his clemency powers in a manner: that*.
has either granted or allowed a-new trial for any person convicted

MAY-@6-1993 15:@9 FROM GERALD T. ZERKIN To 17135222733 P.4

Joseph M. Giarratano, or.
Page Three of Six

of a crime,

In reaching my decision on the issue of clemency, I must
consider the necessity to recognizé the sanctity normally extended
to each branch of government and the inherent obligation to
maintain the dignity accorded to the separation of powers. The
extraordinary powers granted to.me by the Constitution of Virginia
do not in my opinion allow ne to reach into the jurisdiction of the
-Judicial Branch of Virginia government and mandate a new trial.
The propriety of a new. trial has been reviewed and determined
adversely to Joseph M.. Glarratano, Sr., hy the courts of this
Commonwealth and the United States and, while the clemency powers
granted to me are broad, they must be utilized in the manner

- established by precedent existing in the United states and in the

Commonwealth wince tine immemorial, with full appreciation for the
@emands to exercise unfettered judgment. :

NOW THEREFORE, in light of the foregoing I have determined
that, while well reasoned and conscientious minds may differ, the
uitimate decision must be mine; accordingly, based upon. the
dictates of the cirmmstances of this case and. the evidence
presented by the Attorney General and defense counsel, I do hereby
grant Joseph M. Glarratane, Jr., the following CONDITIONAL PARDON:

(1) X acknowledge that statutory Janguage exists to the effect
that those persons sentenced to death are not eligible for parole.
Notwithstanding this factor, I do not view such language as a
constraint. to the powers granted to me by the Constitution under
Article V, Section 12. .I have concluded that the powers granted .
to me supercede any direct or Implied attempt to restrict such
powers through a statutory enactment. Accordingly, Z hereby
commute the sentence of-death for the capital murder Gonviction to
life imprisonment snd grant Jozeph NM. Giarratano, Jr., parole
eligibility with the opportunity for parole to be determined by the
Virginia Parole Boaré in the same manner as if, originally, he had.
been sentenced to life imprisonment.under present law; provided, °
however, that in no instance shall he be eligible for parole until -

he has rerved a total ef) 25 years including present time served: .
and - : oe : ee

(2) The gindings and sentence of the court as. to rape “and
first degree murder are to remain unchanged; and Wo ey

. (3) The capital punishment commutation 4s conditioned. upo!
Joseph M. Glarratano, Jr., maintaining good conduct and cooperating:
with Virginia Department of Corrections officials; accordingly, 4f.-:.
at any time during his imprisonment he shall be guilty of a felony,

igs GRRE 5,1

MAY-26-1993 15:@9 FROM GERALD T. ZERKIN TO 17135222733 P.@S

Joseph M. Giarratano, Jr.
Page Four of Six

including the attempt to escape, this commutation shall be rendered
mull and void and revised to the extent that he shall, thereafter
‘swerve a life sentence without parole, unless such misconduct on his
part leads to a sentence from a court that dictates a more
stringent sentence; and . -

(4) ZI do hereby further implement my clemency powers to the
extent that nothing contained herein is to be deemed to preclude
. the Attorney General, in her sole Giscretion and at her option,
from taking whatever steps are necessary to attempt to secure
Jozeph M. Giarratano, Jr., a new trial and to initiate and
prosecute that trial with her staff or through the use of others,
for those reasons having been made known to the Attorney General
in a petition to her by Joseph M. Giarratano, Sr., requesting a
retrial. The petition from Joseph M. Giarratano, Sr., however,
must provide for the waiver of any right he may have to double
jeopardy, for his continued incarceration until the Jadiecial Branch
has rendered its final verdict and entered an order to the contrary
and any further conditions which the Attorney General or the
@udicial Branch may deem appropriate. JI extend my clemency powers
to the attorney General to invoke the option xet forth above with
the full acknowledgement that she is not bound to agree to a new
trial nor may the Judicial Branch be bound to accede to the request
for a retrial. Moreover, I accept the fact that, in the event the
Attorney General should choose to attempt to secure a retrial and
the Judicial Branch should agree to such @ retrial, that such
retrial results could conclude with an outcome that is either nore
or less stringent than this clemency order, including the potential
of an outcome in which the sentence of death could be ordered.
Accordingly, in the event of such a retrial, the verdict that
results and the sentence that is imposed in the event of a finding

of guilty shail supercede this grant of executive clemency.

(5) In the event that any part of this clemency grant is
deemed by a court of competent jurisdiction to be ineffective, void
or contrary to law or ny intent, Joseph X. Giarratano, dr., is not’
-to be released from prison, but instead, his sentence will be
commuted to life imprisonment without parole, unless I am serving -
as Governor of Virginia at the time of such judicial decision and
Z choose to dmplement a different pardon result. ‘

(6)° Before thié conditional clemency grant will become’
effective, Joseph M. Giarratano, Jx., must accept its terms on or
before 8:00 P.M. on February 20, 1991, by signing this document at-
the place designated for his signature. If he rejects this grant,
‘either 4in-whole or in part, the entire grant is revoked and,
thereby, will be null and void and the sentence of the Circuit

MAY-26-1993 15!1@ FROM GERALD T. ZERKIN TO 17135222733 PP.

Joseph M. Giarratano, dr.
Page Five of Six

Court of the City of Norfolk will be carried out. -

Given under my hand and the. Lesser Seal of the Commonwealth
at Richmond, this 19th day of February in the year of our Lord one
. thousand nine hundred and ninety~one and the 215th year of the
Commonwealth of virginia.

Governor of Vigginia

By the Governor:

£ Deel |

Secretary of the Commonwealth

ACCEPTANCE OF THE CONDITIONAL PARDON

I, Joseph Giarratano, Tx., hereby siccept: the above.
CONDITIONAL PARDON Pith: the conditions’ therein setforth.

Date: 20 ct ssosee , 1992

5g nena B-

MAY-Zé-1993 15:1@ FROM GERALD T. ZERKIN To Leiss222733 PB

Joseph M. Giarratano, Jr.
” Page Six of Six

State of Virginia
city of Richmond, to-wst:

Subseribed and sworn to before me this 20 aay, ‘of February
1991, by Joseph M. Giarratano, Jr.

Lila, syn

Notary Public

‘

” My commission expires the H day ot Lut, l¢4L.

TOTAL P.?