Texas, 1905, 1932-1940, 1967-1995, Undated

VLL DIE
BEFORE |
VLL RON

The Story of the Great Feuds

of Texas

*

C. L. SONNICHSEN

illustrated with drawings by José Cisneros

Photographs

*

The Devin-Adair Company
NEW YORK 1962

Copyright 1951, 1961 by Charles Leland Sonnichsen.
All rights reserved. No portion of this book may be
reproduced in any form except by a reviewer, without
permission in writing from the publishers,

The Devin-Adair Co., 23 East 26th Street, New York 10.

An earlier, shortened version of this book was published
in 195 by Harper & Brothers, New York.

Canadian Agents: Thomas Nelson & Sons, Ltd., Toronto
Library of Congress Catalog Card Number: 61-1795
Manufactured in the United States of America
by H. Wolff, New York

This book is dedicated with deep respect to the sons and
grandsons of the feuding clans of Texas who have built

good lives for themselves in spite of the troubles
of yesterday.

Ruuuaiasuae

sone

oe

Soke

Sn

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240 : The Subsiding Eighties

big fight. He too was courageous, but it is charged against
him that he was quarrelsome in his cups. “He was brave,”
said Colonel Peareson on the witness stand, “but a cruel
and dangerous man.” #8

So they lined up: cousin against cousin; uncle against
nephew; friend against friend. For years their dislikes and
suspicions piled up, like water behind a dam, without any.
open outbreaks, but on the second of July, 1888, the dam
began to crumble.

Te was a bright Monday morning, and the town was
getting ready for a busy day. Wagons and carriages were
coming in. Children’s eyes were glued in fascination to the
gorgeous uniforms visible here and there as the Peareson
Guards, best-dressed drill company in the state, began to
turn out. There were a few solemn faces, but it was a happy
occasion for most—this was organization day: The Young
Men’s Democratic. Club of Fort Bend County was being
born. The Jaybirds were at last closing their ranks and
mustering for battle.

About the middle of the morning they marched forth
to parade. A long train of wagons and buggies rolled down
the main street and came to a halt before the residence of
Miss Adeline Booth. At the gate they were met by Miss
Charlie Woodall of Huntsville carrying a beautiful silk
banner, made by her own hands, and emblazoned with the
words Young Men’s Democratic Club of Fort Bend
County. As the Richmond Democrat reported the event,
Mr. Jeff D. Bryant made the acceptance speech, which
concluded: “And should it be the fate of any of us to fall
under this banner, may the hand that bedecks our grave
be as pure and lovely as the hand that painted these em-
blems of truth.”

Mr. Bryant had no serious notion at the moment of fall-
ing heroically under this or any other banner, but a little
more than a year later he was facing a charge of murder
for his activities in the cause.

OLD SOUTHERN STYLE: 241

In the South in those days one speech was just an ap-
petizer. There was more oratory at the club rooms over
Frost’s saloon where the constitution of the new political
organization was read to thunderous applause.

The object of the club, read the secretary, was “to se-
cure a wise, impartial, economical and unselfish adminis-
tration of the affairs of our county”; to give all taxpayers a
voice in “supervision over appropriations and expendi-
tures”; and to loosen the grip of the “arbitrary and selfish
minority that has so long disregarded the consent of the
governed.”

There were 225 signatures beneath the document on
the front page of next Saturday’s Democrat. There would
have been more, but the space ran out.

Even now the spirit of democracy was not exhausted.
At eleven o’clock there was still another procession; an-
other mass meeting with speeches; still more delirious ap-
plause. Colonel P.E. Peareson, the town’s finest orator and
president of the Straight Democratic organization, ad-
monished them: “Every man present must do his duty and
show to the world that the Democratic party is at last wak-
ing up from its long slumber and is by no means dead.”

That was how the young Jaybirds went into action.
Most of the white people of Richmond felt that it was
about time.

*

The First Murder

~

* On the second of August, one month to the day after the
organization of the Young Men’s Democratic Club, an
event occurred which showed how right the Jaybirds
were in feeling alarm. The event was a murder.

David ‘Nation noticed it in the “Richmond Rustlings”
next day:
242 : The Subsiding Eighties

Mr. J.H. Shamblin, son-in-law of Mr. W.D. Fields, while

sitting on his gallery at his home about seven miles below

here at 9 o’clock last night, was shot in the right side by some
unknown party, who rode up to the gate and fired and rode
away.

Almost all-the details of David’s account were wrong,
but in one respect he was quite correct—J-H. Shamblin
had been shot and killed.

It was a hard blow to the Jaybirds, for Shamblin was
one of their bitterest and most active partisans. Handsome
and aristocratic in appearance, connected with the first
families of the county, and a man of strong personality, he
swung plenty of weight and used all of it in the Jaybird
interest. All through July and August he had made
speeches, talked privately with Negro voters, and stretched
his patience to the limit trying to win support for his party.
Some say he turned the scale against himself by running
a bunch of electioneering darkies off his plantation with
a cowhide whip. A better explanation comes from J.A.
Ziegler, who was a cotton buyer in those days. Shamblin
walked into Ziegler’s office one morning and identified
a stolen bale of cotton which had been brought in by a
Negro named Hudson Caldwell. Ziegler asked Shamblin
to have the man arrested on his return to Richmond and
he promised to do so, but the thief got wind of it and
disappeared for good. “T'wo other negroes, however, were
found who were involved in the theft; and one of them
turned state’s evidence. En route to the trial, as he passed
by Caldwell’s home, the wife of Caldwell gave him 2 cup
of coffee. In it she had placed a liberal dose of strychnine.
Drinking it, the negro was stricken but managed to crawl
over to Mr. Shamblin, then Justice of the Peace, and gave
him his dying declaration of the poisoning and cotton theft.
This evidence Shamblin brought to the court in Rich-
mond.” ? Naturally, somebody was interested in suppressing
Shamblin’s testimony.

OLD SOUTHERN STYLE : 243

All this took place in July. On August 2, 2 Sunday, just
between darkness and moonrise, Mr. Shamblin was sit-
ting in his living room reading. His daughter was playing
on the floor beside him. Laying his book aside, he got up
from his chair and started to walk across the room. At
that moment somebody fired a charge of buckshot
through the window and stretched him on the floor, mor-
tally wounded. His father-in-law, Mr. W.D. Fields, heard
the shot at his home a mile away and hurried over. As soon
as the moon came up he searched the grounds; and on the
gatepost he found a piece of paper—a crazy, badly spelled
blast against Shamblin, concluding with these words:

. . . the Republican parties is going to hold up their heads
if they die hard we will have no democrate to mislead the
ignent negro Race astray. You are a man to lead them a stray
and then cut their throats and suck their blud. I am a repub-
lican and have no use for a dam democrat this is a lesson to
all dam cut throat democrats to hold noe more meetings with
the ignorent negro race of people.

Mr. Shamblin was still alive and conscious when this
document was found. He looked at it and said it was
written by William Caldwell, one of the men implicated in
Hudson Caldwell’s cotton stealing. Sheriff Garvey found
‘William hiding in the woods, matched the writing paper,
the gun wadding, and the buckshot picked up at the scene
of the murder with similar articles in the Caldwell house,
and accumulated other scraps of incriminating evidence.
By the time Shamblin drew his last breath Caldwell was on
his way to Richmond, where he was held until he could
be transferred to a safer lodging in the Houston jail.”

While he was there the young Jaybirds had serious
thoughts of lynching him. Some of them told H.H. Frost,
“If we had had you to lead us and tell us what to do, we

ot us aera

i
i
i

244 : The Subsiding Eighties

would have done it.” So at least Mr. Frost said in a letter to
his brother which was published in the Houston Post.

Tt was due to Sheriff Garvey’s firmness and coolness
that nothing regrettable happened. When the boys began
to collect in front of the jail, he told them they couldn’t
have Caldwell without killing the sheriff and his deputy
first. “Garvey and Dickenson kept so cool,” said Caldwell
in an interview, “it sort of gave me courage.” He got safely
off to Houston, was not molested when he was brought
back for his preliminary trial, and eventually took his case
(in 1891) to the United States Supreme Court. Turned
down by the highest authority, Caldwell was hanged at
last, and it is said that the Jaybirds who went to witness
the execution came home with little pieces of rope in their
lapels.*

‘All this came later. At the time of Shamblin’s death most
people were wondering if the Negro had planned his
own crime. The Jaybirds printed a proclamation in the
Houston and Galveston papers resolving that “the assas-
sination of J.M. Shamblin is laid at the door of the Re-
publicans of Fort Bend County.” The indignant Republi-
cans, in two proclamations of their own, declared that the
accusation was the result of “blind partisanship and the
outgrowth of narrow-minded prejudice.” *

Not a Jaybird in the whole county believed a word of
this denial. It was impossible for anyone to think reasona-
bly of the political situation, and all that was needed was
an incident to set fire to the powder keg. The big barbecue
at Pittsville on August 16 was as good an excuse as one

could ask for. +
ot

Creed Taylor as an Old Man

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~ The United Nations,

+ No credible study in
- Homicide rates from

- Several states place

1990, had an 1Q within
medioate David Owen

his actions,

Juvenile offen:

+ The USA stands with
Barbados, Nigeria, Iran,

Innocent peop!
+ In a 1987 study coverir
people were executed,

‘evidence to retry them:

or CALL:
or FAX:

- The USA Is the only NATO country which currently executes it citizena,

Since the 1876 Supreme Court decision allowing the reintroduction ofthe death penalty, over 160 people have.been executed in the USA,
~ Texas has executed 46 people since 1982, more than any other stato since the reaumption of executions In the USA in 1977,

~ There are over 360 people on death row in Texas (more than any athor state), four of them women.

favor of the abolition of the death penalty.

The death penalty does not deter, but may aggravate, crime

additional homicides In the month following an execution.

; In Michigan, a state without the death penatty, of 400 inmates paroled between 1938 and 1972 who had served an average of 22 years, not one
had committed another murder at the conclusicn of a study done in 1976,

The death penalty is racist and discriminates against:

the poor, the mentally ill, and the mentally retarded
- A National Law Journal study states that in the South,
themselves are incompetent,

+ Dallas County spends an average of $118,000 in the prosecution of a capital case.
7 [0 Toxas, a black convicted of kiling a white is 6 times more likely to receive the death penelty than in the reveree case.
+ Since 1976, 1 white has been executed for killing a black,

+ Texas allows for the execution of people with mental retardation, a condition Indloated by an {Q of 70 or below, Johnny Ray Anderson, executed In

results of three separate examinations) and is on death row.

; Lary Robleon (Texaa desth row) was dlagnosed with paranold achizophrenia long bofore he committed the murders for which he was convicted,
but his family was unable to convince state authorities he was a danger, ‘Tho stato of Louisiana has gone to the Supreme Court in order to forelbly

~ Dallas psychiatrist, James Grigson, MD, publicly referred to as “Dr. Death', has - in over 120 cases = attested to the future dangerousness of the
defendant, even without having “examined him or her, The American Psychiatric Association has stated: “Psychiatrists should not be permitted to
‘offer a prediction conceming the long-term future dangerousness of a defendant in a capital case, Grig:

+ International law prohibits the execution of people under 18 at the time of the crime.

~ The first execution of a juvenile offender in the U:
Juvenile offendera, including two other Texans,

= As of March 1, 1992, 30 juvenile offenders remain on death row in the USA; 24 of the 36 U:
imposition of death sentences on juveniles, In June 1989, the US Supreme Court ruled that
permissible under the Constitution,

+ In 1989 and 1990, Texas released three men from death row because thelr convictions were overtur

The death penaity is costly

~A 1982 NY study found that the fir stage of appeals costs taxpayers $1,8 millon, This figure does not inclu
Process where 50% to 70% of the death sentences are overtumed. - A 1

‘exeoution, In 1990, the state of Kansas rejected reinstatement of the death Penalty due to the cost of bull
FOR MORE INFORMATION, WRITE:

FACT SHEET

The Death Penalty: Texas and the USA

the Council of Europe, the Organization of American States, and the World ‘Counoil of Churches have declared themselves In

the world has ever shown that the death penaity is a deterrent.
1907-1963 In NY state (which carried aut more executions then any other state during this period) showed an average of two

the resources of public defenders are grossly inadequate and in many cases the lawyers
8 $1,000 cap on the defense of individuele on tial for thelr livas; others give these cases to the lowest bidder,

this range and was unable to fell the monthe ofthe year, Johnny Paul Penry hea an iQ betwoen 61 and 69 (based on the

Perry, who la severely mentally Il, 2 that he might be tomporasily competent enough to be executed.

json has been reprimanded by the APA for

ders are executed

only six other countries that have executed Juvenile offenders in the. past decade, The other six are Bangladesh, Pakistan,
i, and Iraq.

ISA in 20 years occurred in Texas In 1985, Since then, there have been four other ‘executions of

IS states with the death penalty have laws allowing the
the execution of offendera as young as 16 was

le may be executed
199 & Peried between 1800 to 1985, twas found that 350 people were wrongly convicted and sentenced to death 23 ofthese

med and the state did not have sufficlent
Randall Dele Adams (served 13 yaars), Clarence Brancley (8 yore), and John Skelton (7 years),

ide the cost of the federal appeals
}988 Florida study concluded that taxpayers pay over $3,1 milllon per
Iding and maintaining @ death row facility.

Amnesty international Texas Satellite Office
4209 McKinney Ave., Suite #114
Dallas, Texas 75205

(214) 521-2489
(214) 521-3733 2/28/92 |.

Electric chair has seen

its share of

‘The man who brought the elec-
tric chair to Texas was a homane

‘e Public servant who came to despise

capital punishment. He was TL
Irwin, a Dallas | ate
Irvin, 8 Dallas lawyer andl state

During the 1923 sesson of
Vexas Legislature, Irwin tomneeg
with J.W. Thomas, a senator from
Belton, to author the bill that
made the electric chair the legal in-
Strument of capital punishment,
Irwin argued in the House, and
Thomas in the Senate, that the
chair was more humane than
hanging.

in those days, each count
responsible for executions’ gud

ngings were rampant an
vigilante affairs, ‘The lant pene
hanging in Texas was held in Waco
on duly 30, 1923, whon confessed
murderer Roy Mitchell swung by .,

pain, death

Billy
Porterfield

the noose at the county court-
house.

‘The chair itself was built by in-
mates of the Huntsville unit of the
Texas Department of Public Cor-

rections, Th
Fete ght, Immediately

‘The chair was first use D.
8, 1924, when five back mom nen
vieted of murder, were electrocut,
ed in the new death chamber off 5
new Death Row, the first central-
{zed collection of the condemned
in Texas.

Charlie Reynolds was the first to

800 Flectric, B4

THXAS
ELECTRIC
CHAIR:

Electric chair

Continued from Bi

sit in the heavy oak chair, which,
over a 40-year period, would take
the lives of 361 men. Thick leather
straps were placed about his
wrists, upper arms and ankles,
Copper electrodes were fastened to
his left ankle and to the shaved
crown of his head, A leather mask
with a hole. for the face was
clinched about his skull,

At nine minutes after midnight,
an executioner behind a wall pulled
a lever, sending a charge of 2,500
volts: into Reynolds, Reynolds’
body jerked and strained at the
straps, It took three charges to kill
him, At the last charge, a geyser of
smoke and blood shot out of the
top of his head. A horrible odor of
burned flesh, blood and excrement
filled the chamber, crowded with
official observers for this historic
occasion. Among them was Rep.
Irwin.

' enna! body was laid out in a
hal

Ewell Morrie was next. It took
but one charge. His body was
placed beside Reynolds’.

George Washington wos third.
Again, threo charges.

it was the same agonizing repo-
tition for Mark Matthows and
Melvin Johnson, ‘They died hard,
Tt,was over at 1:07 am,, having
taken less than a hour. Irwin,
watching the bodies being loaded
for burial, could not help but note,
with irony and anguish, the groat-
ness that the parents of George
Washington and Mark Matthews
had appended to their names,
‘Those who witnessed the execu-
tions said the drama was the most
ghastly they had ever beon cursed
to nee, Shaken by the ordeal, Irwin
cried out: “I'm going before the
next session of the Logislature
with a bill to abolish capital
punishment!”

He did. And, of courso, he failed,
as did others over the years. From
the beginning of their several
statehoods, Texans have held an
“eyo for an eye, and a tooth for a

Austw Crex.)

has seen its share of death

tooth” attitude toward crime and
punishment. It took the 1964 Su-
preme Court decision to stop the
executions at Huntaville. The last
man to die in the chair was Joseph
Johnson, a murderer from Hous-
fans whee life was taken on July

"Phe man who pulled the lever on
Johnson was the last executioner
of record (now they keep them se-
cret) at Huntsville: Capt, Joe Byrd.
‘He was already'up in years when I
knew him, a thin and toothless old
bird who took it upon himself to
keep up the prison cemetery, Peck-
erwood Hill. That sounda ghoulish,
doesn't it, tending the graves of
men he guarded and executed? But
Capt. Byrd was not what you
might suspect. He did not believe
in the death penalty as it was ad-
ministered, but he reasoned that
someone had to act in the name of
the law, and in his case, fate had
decreed that he had to pull the lev-
er for us all, in the name of the
state. He did his duty with a great
reverence for life.

T found this true’ of many of
those at the walls who were
charged with taking the con-
demned to the chair.

Jack Heard, then the assistant
director and later the sheriff of
Harris County, refused to set foot
in the death chamber. So far as I
know, Heard, in his years at the
prison, never saw the electric
chair, And no man ever questioned
Jack Heard’s toughness.

‘The late Don Reid, longtime edi-
tor and publisher of The Huntsville
Item, took it upon himself to be
friend and confidant to the men on
Death Row, For 44 years, he em-
braced, without prejudice and pre-
conception, the men that society
had deemed as incorrigible rejects.
‘They were our ultimate outcasts,
and Reid offered them a last
draught of humanity before they
sat, in the electric chair.

It is incredible to imagine, but
Don Reid witnessed more than 180
executions — he lost count after a

while. These were not faceless
criminals to him, but men he had
sought out when they arrived on
Death Row, men who sometimes
wore barely more than boys, men
who came to depend on him to:
stand by them,in their last hour.
Reid made-a point of not reading
crime news, not even in the news-
paper he edited for ao long. “I don’t
want to make up my mind about
these fellows before I meet them,”
he said to me one time. “I want to
be able to see them as human be-
ings, not as killers or whatever. It
is the least I can do for them.”

When the Supreme Court of the
land stopped the executions in
1964, Reid felt redeemed. In his
own quiet way, he had helped bring
it about as secretary of the ‘Texas
Society To Abolish Capital Pun-
ishment,’ After 12 years, it would
come back, the death penalty, with
the instrument being a needle of
petect instead of “Old Sparky,”

ut Don Reid never saw another

prisoner die. We, the people and
‘the system, seemed a little reluc-
tant to follow through the way we
had, for it was another six years
before an inmate on Death Row
would receive the first lethal injec-
tion. That was in December of
1982. Reid had died the year
before,

What of Capt. Byrd? He died
shortly after pulling the switch on
Joe Johnson, Teckinicalitios kept
authorities from burying him in
tho ‘prison cemetery where he
wanted to be laid, They did change
the name from Peckerwood Hill to
Joe Byrd Cemetery.

And what of TK, Irwin? He left
the Legislature ‘and returned to
Dallas, where he distinguished
himself as a lawyer. In 1952, at the
age of 65, he and his four sons —
TK, Jr, George, Ivan and Lee J.
— were admitted to practice be-
fore the U.S, Supreme Court in a
single ceremony. He died 14 yeare
later, pacino

AMERICAN STATESMAN

FRIDAS, OCT. 26, 1990
STATE oF Texas
OFFICE OF THE GOVERNOR
AuSsTIN, TEXAS 78711

ANN W. RICHARDS
GOVERNOR

October 15, 1991

Michael mm

Gum =e
Austin, Texas 78727-4409
Dear Mr. ail:

I received your letter of October 2, 1991 in which you expressed
your opposition to the death penalty. In each instance in which
an execution is pending, I carefully review the legal status of
the inmate. As you are aware, my office receives correspondence
and telephone calls from many persons expressing their positions
on the imposition of the death penalty in general and on its
applicability in a given situation.

While I appreciate that you are opposed to this state law, I am
sworn to uphold the laws of Texas. The United States Supreme
Court has established the constitutionality of the manner in
which the death penalty is applied in Texas. Therefore, it is my
duty to abide by the law. As you know, my discretion to grant
clemency is limited to a 30-day reprieve. Before exercising this
discretion, I must determine that despite the exhaustion of legal
remedies, new information has been provided that convinces me
that a court will likely alter its earlier determination.

Sinc
4
ANN W. RICHARDS

[LETTER REcCEWED By MEMBER OF AMNESTY
by _WTERWATIONAL IW TEXAS

Yost Orrice Box 12428 Austin, Texas 78711 (512) 463-2000
NGOERECUTIONS IN 33 YEARS sissy) 2.8) Yq at

Death Row Population Is Growing

By BILL FREELAND cumulated a group of men it cannot electrocute which is three |

Standard-Times Austin Bureau times larger than the national average. a ;
AUSTIN — Texas hasn't used its electric chair now for One solution proposed has been to abolish the penalty. The |
nearly 314 years, But it keeps trying. ‘ Texas Society to Abolish Capital Punishment has supported in!

On Nov. 16, a man convicted of armed robbery was sup- a bill in the Jegislature which would substitute for death, a:
posed to die, Another one, convicted of murder, Was to have ‘Jong prison term and a reduced chance for parole, Another :
"his turn four days later. bill, which the Society has not ‘supported, asks that the »
The Department of Corrections at Huntsville was ready. penalty be replaced with a'lileral life term and no chanee for
‘The complicated electrical equipment was tested and found in parole, Both bills have consistently been defeated, but support”
2 perfect working order, ‘fhe death house was prepared, But a dee alternative to the present statute seems to be;
nobody died. + z :
At the last moment, both men found federal judges who Another possible solution tsSthat the U, S, Supreme Court |
gave them a stay of execution, No one should have been ‘Will Kill the penalty as a “cruel and unustal punishment,” ;
surprised, ‘The slate presently has 24 men under sentence of s Net Would make it a violation of the Highth Amendment.’
Geath, the largest number in its history, But only one has a jc Meanwhile there are still 24 men in this state waiting to die,
oat ane eect have a federal stay, Some law enforcement Word fom the state attorneys! offices is that more soon will,
officials complain that its the penalty that's being put to je on their way. 2 i

f

death,

“Tt hasn't always been this way in Texas. i
According to federal atistics, which cover the last 37

years, Texas ranks third in total executions behind: Georgia |

i
and New York, Texas’ 43-year-old chair has put 362 people to l
1

death.

From 1960 to the present, a period when the numbers of ex

ecutions have seen their greatest decline, Texas.has placed |

second behind California with 29 electrocutions — nearly one |

out of every six in the country. i

Z- In ifs4, however, there were only 15 executions in the na- |

+ tion, but five of them were in Texas. No state has had a year !
like that since, Ever since, Texas has ranked number one. i ~

While the executions in Texas have stopped, the juries have |

kept on imposing the sentence, As a result of the eight-cell
death row at Huntsville had to be expanded to 12, and when |
that wasn't enough, the condemned began to be jailed on the |
Ellis Prison Farin; 20 miles outside the main walls, as well. i _ -

>" Ail this has left Texas in a curious poi ‘ion, Up until 1964, | ee Aa
when the slate had its last execution, Texas had five times H

more uutions than the national average, But since the \

federal judges began stopping the execution, the state has ac- 4

£0, TEAS

F bb a vy

An Empire for Slavery
THE PECULIAR INSTITUTION IN
TEXAS, 1821-1865

Randolph B. Campbell

LOUISIANA STATE UNIVERSITY PRESS

/4 ¢]

BATON ROUGE AND LONDON

SOUTHERN HISTORY DEPARTMENT

BIRMINGHAM PUBLIC LIBRARY
2100 PARK FL

BIRNMIN Al.

102 / AN EMPIRE FOR SLAVERY

harboring or concealing runaways drew only a $100 to $500 fine, but re-
peat offenders could be sentenced to three to ten years in the peniten-
tiary. The first conviction for aiding or advising bondsmen to run away
merited a similar sentence.*!

Unauthorized trading with slaves was defined as a criminal offense in
February, 1840. Throughout the remainder of the antebellum period, any
person who bought valuable produce or articles from a slave without the
written consent of his or her owner was liable to a fine of as much as
$200. Liquor dealers who sold or gave their wares to bondsmen without
written approval from their masters were subject to the same penalty.

Aiding or inciting a slave insurrection was not defined specifically as
a crime until surprisingly late in the development of Texas’ slave code.
An act of December, 1837, provided the death penalty for free blacks
found guilty of “insurrection, or any attempt to excite it,” but no law
encompassing whites as well as blacks and specifying aiding, planning,
or inciting a slave rebellion was passed until 1854. The crime was punish-
able by death until a revision of the state's penal code in 1858 reduced the
penalty to a prison sentence of ten years to life. “Insurrection of slaves”
was defined as an “assemblage of three or more, with arms, with intent
to obtain their liberty by force.” After 1858 the law also provided a pen-
alty of five to fifteen years in prison for any person who tried to render a
slave “discontented with his state of slavery.”

A good many Texans ran afoul of one or the other of these laws
against criminal interference with slaves. The Texas State Penitentiary in
1856-57, for example, had eighteen inmates serving sentences for “Ne-
gro Stealing” or “Enticing Away Negroes.” State supreme court reports
indicate that others escaped prison only through technicalities. James
Cain, “yeoman’ of Fayette County, had his conviction for slave stealing
reversed because the word “feloniously” was omitted from his indict-
ment. Samuel Lovett of Upshur County was convicted of enticing away
slave on the testimony of individuals who overheard him talking to the
bondsman in December, 1856, about the possibility of leaving the follow-

21, Gammel (comp.), Litas of Texas, Il, 46~47, 650; Oldham and White (comps.), Dot
of the General Statute Laws, 543.

22, Gammel (comp.), Laws of Texas, I, 345:
General Statute Las, 542.

25. Gammel (comp.), Laas of Texas, Il, 1521; Oldham and White (comps.), Digest uf the
General Statute Laws, 539. Oliver C. Hartley (comp.), A Digesf of the Lats of Texas (Philadel
phia, 1850), the most recent digest made before a general revision began in the mid-r8su,
had no law specifying penalties for inciting slave insurrection,

6; Oldham and White (comps.), Digest uf the

x

THE LAW OF SLAVERY IN TEXAS / 103

ing spring. Justice Royal T. Wheeler reversed the district court on the
grounds that such a discussion so far before the fact did not constitute an
actual effort or an attempt by Lovett to commit the offense in question."
Records of the various district courts across Texas also reveal case after
ase arising from violations of the laws against interfering with slaves,
especially the offenses of selling liquor to bondsmen or buying from them
without the consent of their owners. Thomas Kerchoff of Red River
County, for example, was found guilty in 1860 on three counts of selling
hquor to a slave and fined $20 on each charge. J. and N. Alexander of
Smith County were each fined $25 for buying corn from one of D. R.
Jetiries’ slaves without his written consent. Convictions of this sort were
abo appealed at times to the supreme court, which showed the same
concern for procedures that it demanded in cases involving more serious
otfenses. When S. M. Kingston of Gonzales County appealed a convic-
on for buying five chickens from a slave, Justice James H. Bell, noting
that the eighteen-year-old son of the bondsman’s owner was present
at the transaction and that the indictment did not specify “written” per-
mussion, remanded the case to the lower court. John M. Allen won a
similar reversal on a charge of selling liquor to a slave when Chief Justice
Hemphill ruled that, since no money had changed hands, the whiskey
was a gift, and gifts of liquor from whites to blacks were not illegal."*
Laws governing the conduct of bondsmen were also an essential part
oi Texas’ slave code. An act of December, 1837, made insurrection, poi-
soning, rape of a white female, assault on a white with intent to Kill,
maiming a white person, arson, murder, and burglary into capital of-
jenses if committed by a slave. All other crimes and misdemeanors
“known to the common law of England” committed by slaves could be
punished at the discretion of county courts “so as not to extend to life or
lund.” These lesser offenses did not require grand jury action, but a jury
tral was mandatory. Any slave who used “insulting or abusive language”
toa white person could be arrested by a justice of the peace and punished
by twenty-tive to one hundred lashes. In 1840 Congress provided that
slaves could not carry a gun or deadly weapon without the written per-

ta, Report of the Directors, Superintenden! and Agent of the Texas Penitentiary for the Years
seve and 1357 (Austin, 1857), 44; Cain v. The State, 18 Tex. 387 (1857); Lovett v. The State, 29
Fes 174 0857)

45. Red River County District Court Minutes, Book F; Smith County District Court
‘Papers, Case #706; Kingston v. The State, 25 Supp. Tex. 166 (1860); Allen v. The State, 14 Tex.
03 (3855).

104 / AN EMPIRE FOR SLAVERY

mission of their owners. Any white person could take such weapons
away from a bondsman who did not have the proper authorization.

After 1845 the Texas legislature simply built upon the republic's laws
defining criminal conduct by slaves and setting the penalties for those
crimes, By 1860 the state's penal code provided only two punishments for
bondsmen: death and whipping. Death by hanging was the punishment
for those who committed murder, insurrection, or arson; rape or at
tempted rape of a white woman; and robbery, assault with the intent to
commit murder or robbery, or assault with a deadly weapon on a white
person. Lesser offenses such as petty larceny, public drunkenness, and
insolence to a white person were punishable by whipping. All capital
offenses were tried in district courts while lesser crimes went to justices
of the peace. In any case involving an offense greater than the theft of
property worth less than twenty dollars, slaves had the right to a juzy
trial. Slaves could not be held as accessories to crimes committed by their
masters, and they were not responsible for offenses occurring while they
were under their owner's supervision or control. Anytime, however, that
bondsmen acted outside the immediate custody of their masters they
were legally responsible for their acts.”

Undoubtedly many slaves were punished by their masters without
regard to the law, especially in cases of minor violations, but it was not
uncommon for bondsmen to be tried in court. Justice of the peace courts
heard cases involving lesser offenses and at times handed out severe pen-
alties. A Polk County slave, for example, accused in 1856 of stealing a bell
and rope worth two dollars and injuring a mare, was found guilty of the
first charge and innocent of the second. His punishment, set by the jus-
tice, was thirty lashes by the county sheriff. A Hunt County jury in Janu-
ary, 1856, directed that a slave found guilty of larceny be given 76 stripes
well laid on.” In one Smith County justice court, a slave named Charles
received a jury trial because he was accused of stealing property valued
at more than twenty dollars. He was found guilty and sentenced by the
jury to be given “three hundred lashes on his bare back to be well laid on

16. Gammel (comp.), Laws of Teas, 1, 3385-86, Il, 346.

17, Oldham and White (comps.), Digest ofthe General Statute Laws, 482, 559, 362; Cufey
vv. Moseley, 2% Tex. 408 (2858); Ingram & Wife w. Atkinson & Wife, 4 Tex. 270 (1849). It must be
remembered that laws concerning offenses by slaves gave masters a great deal of Iatitude in
punishing ther slaves without going to any other authority. This will be dealt with below in
chapter 7.

THE LAW OF SLAVERY IN TEXAS / 105

with a leather strap in such manner as not to inflict great bodily injury.”
Itis difficult to imagine just how the sheriff complied with this order. In
a similar case in 1860, Governor Sam Houston intervened to abate the
severity of punishment. E. V. Stanley's slave, Abe, found guilty of bur-
glary, was sentenced to 750 lashes to be administered at stated intervals
over a period of time, but Houston pardoned him before the full penalty
was exacted. *

Bondsmen who committed more serious offenses against whites often
were dealt with by lynch law, The Austin Texas State Gazette expressed
approval of this form of “justice” in October, 1860. “A negro has been
arrested for a rape on a respectable white lady,” the editor wrote. “We
expect he has been hung up a tree before this.” Lynchings were common
enough that Texas newspapers reported at least three in 1859 alone. At
Smithfield, Tarrant County, in May, one of James Roper’s slaves, angered
because his master did not buy his wife in Alabama and bring her to
‘Texas, killed Roper and burned his body. Local whites forced the slave to
confess and then burned him on the same spot. A similar incident oc-
curred in Polk County during May or June. In Hopkins County, after a
slave was arrested for the attempted rape of a white woman, a mob broke
into the jail and hanged him." I

Lynch law did not always prevail, howeverf Two slaves who murdered.
their owner, William Gaffeney, near Claksville in April, 1853, were duly
tried, sentenced, and executed according to the law. The two were valued
at $1,879.16 by the jury that sentenced them to death, When three of
Richard S. Bostick’s slaves killed him in January, 1858; they met the same
fate as Gaffeney’s bondsmen. Following their execution in October, the
administrator of Bostick’s Jackson County estate subtracted $3,100, the
appraised value of the three males aged forty-six, thirty-five, and twenty-
five, from the property under his controlfPeter, a sixteen-year-old boy
from Red River County, also received a procedurally correct, albeit very
swift, application of the law in early 1859. Accused of killing his mistress,

38. Polk County Justice of the Peace Records, JP Book, Precinct 4; Hunt County Com-
missioners’ Court Minutes, Book A-s, pp. 96-97; Smith County Justice of the Peace Papers,
Case #25; Amelia W. Williams and Eugene C. Barker (eds.), The Writings of Sam Houston (8
vols.; Austin, 1938-43), VIM, 3.

29. Austin Texas State Gazette, October 20, 1860; Enda Junkins, “Slave Plots, Insurrec-
tions, and Acts of Violence in the State of Texas, 18281865" (M.A. thesis, Baylor University,
1969), 50-51; Matagorda Gazette, July 25, 1859.

106 / AN EMPIRE FOR SLAVERY

he was indicted on January 6, tried and found guilty on the twelfth, sen-
tenced on the seventeenth, and hanged on the twenty-eighth. The jury
that found Peter guilty fixed his value at $800."_)

‘he case of Dave, a Smith County bondsman accused of assault with
intent to commit murder, demonstrates a concern for procedures that
was not uncommon when slaves committed serious offenses. A grand
jury sitting at Tyler on June 4, 1861, indicted Dave for an April 15 assault
on the son of his master, William C. Gober. Dave had stabbed. Young,
Gober, who was “then and there a free white person,” three times “with
a certain knife then and there being held in the hands of him the said . . .
slave.” The attack with a deadly weapon had so injured its victim that
“the life of him the said Gober was despaired of.” Dave had a court-
appointed attorney and entered a plea of not guilty. District Judge R. A.
Reeves conducted his trial and at the conclusion charged the jury as
follows:

If the jury believe from the evidence that the defendant assaulted
Young Gober with a knife as charged in the indictment and that it
would have been murder if death had been the result, the assault is
deemed in law to have been made with intent to commit that offense
and the punishment is death. And if you find the defendant guilty as
charged in the same indictment, return a verdict accordingly. If you
find him not guilty so say by your verdict. if you have a reasonable
doubt of his guilt, he is entitled to the benefit of such doubt and to an
acquittal. If you find him guilty of the assault to murder you will also
assess his value and state whether his owner has attempted to evade
the law against the negro.

The jury found Dave guilty and set his value at $1,000. Dave's attorney
appealed for a new trial, but Judge Reeves denied the motion and im-
posed the death sentence. Dave was hanged on July 11, 1861, on a gal-
lows erected within the Smith County jail. In April, 1862, William C.
Gober collected $500 from the state comptroller.” wi

20. Clarksville Northern Standard, April, June 4,21, 1853, January 29, 1859; San Antonio
Herald, October 20, 1858; Estate of Richard S. Bostick, Jackson County Probate Records (Final
Estate Record); Red River County District Court Minutes, Book F.

21. Smith County District Court Papers, Case #754. The voucher for $500 paid to Gober
is in the Papers of the Comptroller of Public Accounts, Texas State Library and Archives,
‘Austin. Young Gober was twenty years old in 1860. He survived the attack and still lived in
Smith County at the census of 1870. Eighth Census, 1860, Schedule x (Free Inhabitants}

‘THE LAW OF SLAVERY IN TEXAS / 107

Although a strong presumption of guilt was apparent, slaves charged
with offenses against whites were not always found guilty and punished.
The case of Elizabeth, who belonged to James Threatt of Robertson
County, provides a good example. When her owner's young son disap-
peared in June, 1863, Elizabeth and another slave named Ned were
beaten with a rope to extort information or confessions. Ned claimed that
Elizabeth had put the child in a well, whereupon she said he was lying
and took witnesses to the child’s badly bruised body in a pond of water
near the master’s home. Ned and Elizabeth were indicted for murder. He,
having met his death shortly thereafter (another lynching?), was not
tried, but Elizabeth was convicted. Her court-appointed lawyer appealed
to thé Texas supreme court and won a new trial. Justice Moore ruled that
the evidence obtained after coercion was admissible in court but con-
cluded that it did not sustain a murder verdict. Elizabeth's cognizance of
the child’s murder and the body's hiding place “does not prove that she
killed it,” he wrote, “or was an accomplice in its being done.” Once the
case was remanded to Robertson County and then moved to Falls County
‘ona change of venue, she was found not guilty. Pompey, a slave in Whar-
ton County, won an acquittal on charges of attempting to poison his mas-
ter after telling the jury how harshly he had been treated. A Burleson
County bondsman received a full pardon from Sam Houston in 1860 after
“sundry Citizens’ petitioned the governor to explain that the assault
which Jed toa death sentence had taken place “under peculiar and aggra-
vated Circumstances” and left “no permanent injury.”

There were also cases in which slayes were prosecuted for capital of-
fenses against their fellow bondsmenf When, for example, Jack was ac-
cused of Killing his wife Nicey in Guadalupe County, a jury convicted
him and imposed a death sentence. His case was appealed to the state
supreme court in 1861 on several grounds, including the failure of the
jury to set his value. Justice James H. Bell, however, denied the validity
of the appeals and confirmed the district court's decision, Nels and Calvin
were more fortunate than Jack. Nels, convicted of miirder in Red River
County in 1846, won a reversal because the jury in his trial had not been

Ninth Census ofthe United States, 1870, Schedule 3 (Inhabitants), National Archives, Washing
ton, D.C.

‘22. Elizabeth, A Slave v. The State, 27 Tex. 329 (1865); Falls County District Court Minutes,
Book B, Case #285; Annie Lee Williams, A History of Wharton County, 1846-1961 (Austin,
1964), 106; Williams and Barker (eds.), Writings of Houston, Vill, 85-87

108 / AN EMPIRE FOR SLAVERY

swom. Calvin, a Rusk County bondsman, was convicted in 1858 afte his
indictment was altered during the trial to clarify ownership of the victim
and how she had died. Justice Bell found this procedure too improper to
support a conviction. ‘“The law of the case,”” he wrote, “is precisely the
same as if the accused were a free white man, and we cannot strain the
law ‘in the estimation of a hair,’ because the defendant is a slave.”
Many offenses by slaves against fellow blacks probably went without
formal prosecution because owners feared the loss of valuable property
to criminal punishment. This possibility is suggested in an interesting
case that came to the supreme court in 1866, the year after emancipation
in Texas. Mary and Maria, who belonged to B. D. Amold of McLennan
County, had quarreled in October, 1863, over the need to punish Maria’s
child, who supposedly had told a lie on Mary. According to witnesses,
Mary smacked the child, whereupon Maria screamed: “You whip my
child, God drast your eyes! I will Kill you!” and stabbed her with a butcher
knife. Mary lived for a month after the attack but died on November 29,
1863. Maria was not indicted for any crime for two years, probably, in the
words of the statement of facts presented when the case finally came to
the supreme court in 1866, because her master “was unwilling to incur
the additional luss of punishing the murderer by law.” A similar case
apparently occurred in Washington County during 1857. The administra~
tor of the Elisha D. Little Estate informed the probate court that a man
named Anderson was unmanageable and had committed an offense
“which if prosecuted would have forfeited his life.” This report did not
seealy that Anderson’s offense was against another black, but that was
v2
Laws concerning runaways constituted a fourth aspect of Texas’ slave
code, An act of February, 1841, gave all Texans the lawful right and re~
sponsibility to apprehend runaway slaves and take them before a local
justice of the peace. The runaway was then returned to his owner, if
known, or jailed. If, after six months, during which time notices were to
be placed in local newspapers, the slave had not been claimed, he was to

sy. Nis, A Ste v. TH Site, 2 Te 28 (8 Cain, A Sev. The Ste 23
ee
tax chuonan Te St To. 68 68; Esa of Esa D Lith, Wash
ing Cnty Prot Rosrd (al Record, Book C) Te av proving conpenstn fr
a ato lat ete pope dus to capa panshment bythe state also ined an
Gran that anes tghtavenpto credesuch pnstinent ndiosee. Aneto
“Trpcnaton depended on he owner’ having nade no atemp tevee ew

TUE LAW OF SLAVERY IN TEXAS / 109

be sold at auction. However, ifthe original owner appeared and proved
tie to his property within the next three years, he was to receive the

amount paid for the slave. By 1844, when the number of bondsmen ¢5-

caping to Mexico had become troubling to slaveholders, the state con-

gress made it legal for anyone capturing runaways west of the San Anto-
ore River to demand a fifty-dollar reward for each plus two dollars for

every thirty miles traveled to return them to the rightful owner

Laws established under the republic concerning the capture and dis-
posal of runaways remained in effect through the statehood period, as
id the system of special rewards for the capture of slaves west of the San
‘antonio River. In 1858 the state legislature, upset at the number of slaves
escaping to Mexico and the Mexican government’ refusal t0 respond to
the situation, passed a measure entitled “An Act to Encourage the Rec-
lamation of Slaves Escaping Beyond the Limits of the Slave Territories of
the United States.” This act entitled any person who captured slave
attempting such an escape and delivered his captive to the sheriff of
Travis County at Austin to a payment from the state treasury amounting
to one-third of the slave's value. The state would recover its costs either
fom the slave's master when the property was reclaimed or from the sale
ofthe slave. The wording of this measure was such that it did not call for
capturing slaves who had escaped to Mexico—only thooe who were Hes.
caping.” But this was a nicety that might easily have been overlooked by
zealous slave catchers.

In May, 1846, the Texas Legislature took an important step toward
stronger enforcement of the various laws protecting slavery—those deal-
ing with criminal interference by free persons and ‘with runaways as well
gs those regulating slave conduct—by creating formal slave patrol
system. The law directed county courts to appoint = patrol consisting
of a captain and as many as five privates for each “district oF division”
in the county. One-half of the members of a patrol were to be slavehold-
ers, Their period of service was three months, and they were required to
patrol their district at least once a month “and as much oftener as the
tranquility thereof may require.” Patrols were empowered to search sus-
pected places for harbored or runaway slaves. If they captured a ran-
away, patrol members divided the fees that would have come 0 any in-

a5. Ganvnel (comp), Lau of Texas, I, 345-46, 95°-51-
2 Oak NY, opis: Oldham and White (comps), Digest of the Genertl Statute Les,

497-409.

142 | AN EMPIRE FOR SLAVERY

whelming from plantation journals, probate records, and slave narratives
that serious illnesses and injuries were treated by doctors. Julien §.
Devereux regularly paid physicians for treating slaves, as did James F.
Perry. The latter sent one favorite house servant to a clinic in Houston
when she developed breast cancer. From there, she was transferred toa
hospital in New Orleans and surgery performed. All the attention was in
vain, however, as the woman died several years later. Estate administra-
tors and guardians made annual reports showing large sums spent on
doctors and medicines. The estate of Sarah Droddy in Milam County paid
doctors $48 for treating a thirty-year-old woman in 1845 and $55 for the
woman and her child in 1846. The administrator of John G. Rives's estate
in Cass County, which had forty slaves, paid $140.65 in doctors’ bills for
the first ten months of 1846. William J. Blocker’s family owed a Hartison
County doctor $335 in 1864, nearly all as a result of attention to their
slaves. Estate after estate reported paying doctors and midwives to assist
in the delivery of slaves’ babies. Bondsmen themselves remembered be-
ing visited by doctors. They had no illusions as to the role of self-interest
as well as humanity in their treatment. Armstead Barrett of Walker
County said: “Old Massa have doctor for us when us sick. We's too valu-
able.” William Byrd was more succinct: “We too valuable to die.”
Slaves did not lack for medical attention; the problem was the state of
medical science in antebellum Texas. Physicians, regardless of their edu-
cational backgrounds, simply did not know very much. Some still used
treatments such as bleeding, cupping, and blistering, and most were
powerless against many of the diseases and internal injuries that afflicted
slaves. Inadequate medical science obviously took its toll on whites as

17. Curlee, “Texas Slave Plantations,” 271-73; Maddox, “Slavery in Texas/” 67-69.
Lucadia Pease told her sister in 1853: “1 practice physic without having received a diploma.”
Pease to Augusta N. Ladd, March 18, 1853, in Pease-Graham-Niles Family Papers. Winfrey,
Julien Sidney Devereux, 75; Estate of Sarah Droddy, Burleson County Probate Records (Probate
Minutes, Book 2); Estate of John G. Rives, Cass County Probate Records (Final Record Pro-
bate Court, Book x); Estate of William J. Blocker, Harrison County Probate Papers. Examples
of estates reporting doctors and midwives assisting in the delivery of babies include: Estate
of Joseph Stevens, De Witt County Probate Records (Final Record, Book C); Estate of C. N.
Breen, Williamson County Probate Records (Probate Minutes, Book 3R); Estate of Charles H.
Whitaker, MeLennan County Probate Records (Probate Records, Book B); Estate of G. W.
Hadnot, jasper County Probate Records (Probate Minutes, Book C); Am. Slave, Supp, Ser.
1, 197 (Armstead Barett), Il, 578 (William Byrd), 11, 146 (Henry Baker), V, 1910-14 (Nancy
Jackson). It was possible to obtain life insurance on slaves. James Morgan insured a sixteen-
year-old boy for $80 with the British Commercial Life Insurance Company in 1853. The
policy, which cost $33.25, is in Morgan Papers.

MATERIAL CONDITIONS AND PHYSICAL TREATMENT / 143

Table 13. Distribution of White and Slave Populations According to Age,
1850 and 1860

‘Slaves Whites
Ages: Number Percent ‘Number Percent
1350

09 19,061 28 50,158 ne
10-14 8.233 wa 19,802 29
49 28,093 83 roe) 50.0
50-65 2,080 36 6610 43
+ 684 12 205 13

1860"

0-9 59,474 327 136,880 30
10-14 24,782 B6 52,913 us
15-49 88,614 48.8 199,605
50-65 6,459 36 19,412 47

et 2,289 13 5,27 es

“in 1860 the total population figures included 948 slaves and 6,353 whites who were the
result of estimates by census takers. No ages were available for these individuals.

wellas blacks, but slaves generally had less adequate material conditions,
did heavier work, and therefore suffered from more diseases and inju-
ries. Still, their life expectancy, as it can be measured roughly from census
reports, was only slightly lower than that of whites. In both 1850 and
1860, the proportions of the slave and white populations that fell into five
age categories ranging from childhood (0 to 9 years) to old age (65 and
over) were very comparable (see table 13). Whites who lived to be fifty or
older were less than 2 percent more of the whole white population (5.6
percent in 1850 and 6.1 percent in 1860) than were similarly aged blacks
asa part of its slave population (4.8 percent in 1850 and 4.9 percent in

1860).

Every bondsman in Texas knew that the material conditions of servitude
were vitally important; for many, punishment and cruel treatment held
nearly equal significance. The constitution of the republic had no provi-

ing, blistering, ete, see Estate of Sarah
48. For examples of treating slaves with bleeding, bl k
Droddy, Busleson€ ‘County Probate Records (Probate Minutes, Book 1). Age distributions ar
in DeBow (comp), Statistica! View of the United States, 52-53, 89-90; U.S, Bureau of the Cen
‘05, Population ofthe United Stats in 1880, 482-83.

144 / AN EMPIRE FOR SLAVERY

sions concerning physical abuse, but in February, 1840, congress pro-
vided that anyone who “shall unreasonably or cruelly treat, or otherwise
abuse any slave” could be punished, upon conviction, with a fine of $250
‘o $2,000. Any person who murdered a slave or caused death through
ctuel treatment was to be tried for a felony, as in any case of murder
District judges were to enforce these provisions, but they were undoubt.
edly hampered by a law of December, 1836, that provided that blacks
and mulattoes could not be witnesses “in any case whatsoever, except for
and against each other.” This was taken to mean that slaves could not
testify against whites, so cases involving the mistreatment of slaves de-
pended solely on the willingness of whites to protect slaves against other
whites.»

The Constitution of 1845 permitted the legislature to pass laws requir-
ing slaveowners “to treat them [slaves] with humanity” and to pass laws
requiring slaveowners “to abstain from all injuries to them extending to
life or limb.” It also contained a section providing that “any person who
shall maliciously dismember, or deprive a slave of life, shall suffer such
Punishment as would be inflicted, in case the like offense had been com-
mitted upon a free white person, and on the like proof—except in case
of insurrection of such slave.” On the basis of these constitutional provi
sions and the 1840 law protecting slaves {rom physical cruelty and mur-
der, the Texas legislature developed a code defining the power of masters
to punish their bondsmen and the points at which punishment became
cruel treatment.

At the close of the antebellum period, Texas slaves could be punished
by their masters (or anyone such as an administrator or hirer having law-
ful control of them) according to the following general principles:

ast. The right of the master to the obedience and submission of his
slave, in all lawful things, is perfect, and the power belongs to the
master to inflict any punishment upon the slave, not affecting life or
limb, and not coming within the definition of cruel treatment, or un-
reasonable abuse, which he may consider necessary for the purpose
of keeping him in such submission, and enforcing such submission to

19. Gammel (comp,), Laws of Texas, I, 1265-66, I, 346. The willingness of whites to
Protect slaves against other whites will be discussed in detail below

20, Ibid, I, 1296, I, 29. In 1848, the fine for cruel treatment or unreasonable abuse was
lowered from $250~$2,000 to $20-$500. During the 1850s, however, the penalty would be
Increased t9 $100~$2,000.

MATERIAL CONDITIONS AND PHYSICAL TREATMENT / 145

his commands; and if, in the exercise of this right, with or without
cause, the slave resists and slay his master, it is murder.

2nb. The master has not the right to kill his slave, or to maim or dis-
member him, except in cases mentioned in Article 564 [cases of insur-
rection or forcible resistance to a white] of this Code.

3R0. A master, in the exercise of his right to perfect obedience on the
part of the slave, may correct in moderation, and is the exclusive judge
of the necessity for such correction; and resistance by the slave, under
such circumstances, if it results in homicide, renders him guilty of
murder.

In addition to these powers of punishment legally accorded masters, any
white man, when faced with “insolence” on the part of a slave, could

inflict “moderate chastisement, with an ordinary instrument of correc-

Hon.” Also, any free white person could give a bondsman a “moderate

whipping’ for any one of seven different offenses, such as using “insult-

ing language or gestures” toward a white or being drunk and making a

disturbance in public. :

The penal code also attempted to define the points at which punish-
ment became unreasonable abuse or cruel treatment and provided fines
af $100 to $2,000 for offenders. “Unreasonable abuse” was the inflicting
of punishment “greatly disproportionate to the nature of the offense” or
beating with “unusual implements.” “Cruel treatment” was “to torture
or to cause unusual pain and suffering” or to punish severely enough to
injure a slave's health or “depreciate his value.” Ifa slave was maimed or
disfigured, the person responsible could be charged with unreasonable
abuse and cruel treatment. If mistreatment resulted in the death of a
slave, the offence was murder. Finally, the code provided fines of as
much as $100 for any person who, “without sufficient provocation,
whipped or struck a slave that was not his property or under his lawful
control. ; _

Slaveholders, in exercising their right to “obedience and submission
from their bondsmen, inflicted a variety of punishments. Whipping was
most common, and the instruments used varied from switches to sticks

to leather whips. Some owners also used jails, chains, clogs (leg weights),

21, Oldham and White (comps.), Digest ofthe General Statute Laos, 560~63-
22. Ibid, 542-43.
146 | AN EMPIRE FOR SLAVERY

and other special devices. Gus Johnson, for example, remembered that
his mistress jailed her slaves in a hole dug in the ground with a weighted
“drop door” to close it. The driver on the Kit Patton place forced workers
to drag a chain as they worked in the field, and J. S. Devereux bought a
fifteen-pound clog “to put on negro man Ben’ in 1850.

Slaves were whipped for many reasons, including running away,
stealing, fighting, insolence, and failure to complete their work on time
and to their masters’ satisfaction. Jacob Branch’s mother was whipped for
letting flies speck the clothes she washed; Fannie Brown, for her slow-
ness in learning how to spin. Others were whipped for poor cooking, for
not keeping their row up with the other slaves’ rows, and for letting live-
stock escape. Efforts to determine the proportion of all slaves who suk
fered whippings and how frequently they were punished are futile. Some
masters never whipped or permitted it on their places. Others were like
the master in Limestone County, who, in the words of one of his slaves,
“had to beat somebody every day.” Clearly, many slaves were whipped,
and the practice was common enough that all were aware that they could
be so punished. Every slave did not have to receive a whipping in order
to be impressed with the frightening possibility that it could happen to
him. One woman who ran away and was later caught expressed what
was likely the typical bondsman's view on this form of punishment,
When asked by her owner if she had not been afraid of wild animals, she
replied: “I’m more scared of you than the animals, they don’t whip.”

Slaveowners tended to view whippings as a necessary disciplinary
measure, not as cruel treatment. For example, John Bauer, Ashbel Smith’s
overseer, in his annual report for 1842, wrote: “{ am from principle dis-
inclined to ill treat a beast far less a human being.” He also reported that
when Albert tried to ran away he had been caught and given a “sound
whipping.” Regardless, however, of what masters and overseers such a5.
Bauer thought, nearly any whipping was painful enough to border on

23. Curlee, “Texas Slave Plantations,” 126-27; Winfrey, Julien Sidney Devereux, 73; Am.
Slave, Sap., Set. 2, I, 226 (Hatizon Becket), VI, agg (Gas Jonson, Il, oy Gecko
Camather

24. Am. Slave, Supp., Ser. 2, Il, 146 (Henry Branch), II, 410 (Jacob Branch), (Far
Bown), Vl, 2767-58 (lin Moor), VIE ayn eens Mest) tid hee,
Boye} I 475 Uses Bow) ae exanples of the many saree Sho ad Ber nee
shipped. Wiliam Moore (i, VIL 29, sid hs ounce had to whip omens mej ane
Wales Rina (Bi, VI, 331) fold about the wooran who mas aoe cheal ofa a,
thane wild ails, Rovner Tens, 16) 64 ted of tae acs eae,

whipped.

MATERIAL CONDITIONS AND PHYSICAL TREATMENT / 147

quel treatment. Moreover, severe beatings were not uncommon. The
LaGrange True Issue in July, 1860, described how a master in Coryell
County whipped a girl from sunrise until noon. One observer said the
slave, who was accused of stealing, was the most inhumanely whipped
creature he had ever seen, including horses and oxen. Mollie Dawson of
Navarro County remembered her horror at the first whipping she ever
saw. She was visiting her father who lived on a neighboring plantation
when she saw a man with his feet and hands tied stripped naked and

lying on the ground.

This white man was whipping him and the blood was all over this
nigger and he was saying “o, master, 0, master, I pray you not to hit
me any more. Oh, Lordy, oh, Lordy, has mercy on me. Master, please
has mercy on me, please has mercy.” But this man wouldn't stop a
minute and spits tobacco juice and cuss him and then starts in whip-
ping him again. This nigger was jumping around on the ground all
tied up, just like a chicken when you chops his head off when this
man was whipping him and when the white folks would stop awhile
this nigger would lay there and roll from side to side and beg for
mercy.

L runs off a good piece when this white folks started whipping him
and stopped and looks back at him, I was so scared that I just stood
there and watched him till he quit. Then he tells some of the slaves to
wash him off and put salt in the cut places and he stood there to watch
tiem to see that they did. He was chewing his tobacco, spitting and
cussing that nigger and when they gets him washed off and puts salt
in the raw places he sure did scream and groan.

But when he groaned they just keeping putting the salt in to the
wounds on his poor old beat up body.

The first thing that I know my father was patting me on the back
and said, “Honey, you better run along home now,” and 1 sure did
and | didn’t go back over there any more. That was the only slave 1

ever saw get a whipping.

Another bondsman, Andy Anderson, never forgot or forgave the first
whipping he received. For accidentally breaking part of a wagon while
gathering firewood, he was tied to a stake and given ten lashes every half
hour for four hours. “I have that in my heart until this day,” he told his
WPA interviewer during the 1930s. Jacob Branch said that when his mis-

148 / AN EMPIRE FOR SLAVERY

tress beat his mother with a cowhide whip, it “look like she cut my mama
in two.”

Some whippings were fatal. In 1861, for example, William R. Wilson
of Harris County killed a slave named Ned by inflicting six hundred
lashes with a “gutta percha strap.” The manager of Andrew M. Echols’
sawmill in Burleson County whipped a hired slave to death in 1856. The
Texas State Gazette of October 7, 1854, carried an account of an overseer’s
administering a fatal beating to a slave woman.*

Cases of unreasonable punishment and cruel treatment, sometimes to
the point of death, that did not involve whipping also were reported.
When, for example, Eda Rains fell asleep while fanning a baby of the
family to whom she was hired, her mistress struck her with the turkey
wing fan and scarred her forehead for life. David Chandler of Travis
County killed a slave belonging to David Conner because the bondsman,
for some unspecified reason, “raised his hand” against Chandler. J. D.
Nix of Harris County assaulted a slave woman and cut her with a knife.
John Farrett was indicted in Red River County for assault with intent to
murder after he wounded a slave girl named Catherine. James H. Calli-
han of Guadalupe County attempted to take a pistol away from a hired
slave and then, when he ran away, shot and Killed him. Thomas Presley,
in the words of an Anderson County indictment, “did . . . without just
provocation, inflict unusual pain... upon ... a negro slave .... the
property of Millings, . . . murdering him.” Charles U. Brady, an overseer
in San Augustine County, shot and permanently disabled a slave as the
result of an altercation stemming from the latter’s having said something
“impudent.” The overseer on William T. Scott's Harrison County planta-
tion killed a slave who physically resisted discipline. Another planter in
the same county informed his son in 1859: “Dr. Stewart shot his man John
for insubordination but it is thought he will not die.” In April, 1852,
Benjamin E. Roper, Ashbel Smith's overseer, cut a slave named Lewis
with a knife. Roper informed Smith that the slave would remain with a
doctor “until he is able to bear punishment when I shall bring him home

25. John Bauer to Ashbel Smith, December 26, 1842, in Smith Papers; La Grange True
Issue, July 5, 1860; Am. Slave, Supp., Ser. 2, IV, 1120-2 (Mollie Dawson), I, 52 (Andy An-

derson), II, 410 (Jacob Branch). Advertisements for runaways sometimes testified to permat
nent scars left by whippings. See, for example, San Augustine Red-Lander, September 9, 1851;
‘Marshall Texas Republican, March 10, 1865.

26. Wilson v. The State, 29 Tex. 240 (1867); Echols v. Dodd, 20 Tex. 192 (2857); Austin Texas
State Gazette, October 7, 1854,

MATERIAL CONDITIONS AND PHYSICAL TREATMENT / 149

and give him a very severe whipping.” If “any negro . . . should ever give
me the like provocation,” Roper wrote, “I will deliberately take his life.””

At some point then, punishment and the exercise of whites’ power
over slaves went beyond discipline and became abuse, cruel treatment,
and even murder. Slaves were supposed to have the protection of the law
in such cases, but relatively few actions were brought against masters for
‘cruel treatment or murder of their own slaves. Perhaps this was because
only a small minority of owners subjected their own valuable property to
extreme mistreatment. On the other hand, few white witnesses probably
were available or willing to bring charges and testify against a master for
what he did to his own bondsmen on his own farm or plantation, and
blacks could not testify in court for each other or against whites.* Under
these circumstances, legal actions against masters for mistreatment of
their own slaves appear to have been brought only in especially aggra~
vated cases.

‘One such case involved the Steen family of Smith County. Thomas
Steen was indicted in 1847 for crue] treatment of three young slaves by
denying them adequate food or clothing, exposing them to inclement
weather, and whipping them with unreasonable severity. He was acquit-
ted, but the next year his son James Steen was indicted on identical
charges. At the trial in 1850, witnesses testified that they had seen two of
the slaves, an eleven-year-old boy and a thirteen-year-old girl, working
naked in the fields and had seen them, in the words of one witness,
“whipped and whipped pretty badly.” Thomas Steen, testifying in his
son's behalf, claimed that the children had “always been part of his
family,” were well cared for, and worked very little. They had been
whipped some, he said, “but not as much as they deserved.” District
Judge Lemuel D. Evans, in his charge to the jury, explained the law on
food and clothing and provided some interpretation of his own on cruel
treatment. “Whipping,” he said, “or infliction of punishment not re-
quired in order to enforce obedience to the master’s commands or to keep

27. Am. Slave, Supp., Set. 2, Vill, 3222 (Eda Rains); Chandler v. The State, 2 Tex. 305 (1847);
Nia. The State, 45 TeX. 575 (1855); Slate of Texas v. John Farret, Red River County District
‘Court Minutes, Book E; Callan v. Johnson, 22"Tex. 597 (1858); Presley v. The State, 30 Tex. 160
(3807); Brady v. Price, 19 Tex. 285 (x857); Houston Telegraph and Texas Reyister, December 5,
1851; Levin Perry to Theophilus Perzy, June 20, 1859, in Person Family Papers, Perkins Lr
‘brary, Duke University, Durham, N.C.; Benjamin E. Roper to Ashbel Smith, May 3, 1852, in
‘uth Papers.

28, Inthe case of Doty v. Moore, 16 Tex. 501 (1856), a district court decision was reversed
bexause a slave was allowed to testify, in efect, against a white.

150 / AN EMPIRE FOR SLAVERY

the slave in proper subjection to the master is cruel treatment.” Steen was.

found guilty and fined $118. His lawyer filed a list of exceptions, ap-
peaied, and had the conviction reversed and remanded for further ac
tion. A second trial in Smith County resulted in another conviction and
a much larger fine of $262.49.

Legal actions for abuse and cruel treatment were much more common
in cases involving slaves that did not belong to the person indicted. James
Bumpus of Upshur County, for example, was tried in 1856 for laying
“violent hands on a negro slave” belonging to Jacob Fisher and proceed-
ing to “unmercifully whip and abuse said boy.” Erwin Chancey of Smith
County was accused of unreasonable abuse and cruel treatment and
whipping another master’s slave without due provocation because he
beat William Kelley’s man George with a stick. In 1855, John Stephenson
was indicted in Washington County for assault and battery after he
whipped Malissa who belonged to Linsay P. Rucker. In the other cases of
abuse, cruelty, and murder mentioned above, Wilson, Chandler, Nix,
Tarrett, and Presley all faced legal action. All had in some way mistreated
or attacked someone else’s slave.”

The decisions in these cases suggest that juries were willing to give
slaves protection of the laws against unreasonable abuse and cruel treat-
ment, at least to the point of assessing fines against violators. But in gen-
eral they were unwilling to convict whites of more serious offenses
against bondsmen. William R. Wilson, for example, charged with murder
and with cruel and unusual punishment for whipping a slave to death,
was acquitted on the first charge but found guilty on the second and
fined $2,000. Thomas Presley's case had exactly the same result, although
his fine was only $240. Eventually both convictions were overturned by
the Texas supreme court on the grounds that, according to the law, cruel
treatment resulting in death had to be considered murder. Wilson and
Presley could not be found guilty of the lesser offense when it had obvi-
ously led to a more serious one. Bumpus was found guilty of assault and
battery and fined $40. In Chancey’s case, the jury found him not guilty of

29. Smith County District Court Papers, Case #3 (Thomas Steen); Case #43 Jame
Steen). The James Steen case papers include the indictment, testimony, and Judge Evans’
charge to the jury, plus all the information on the aftermath of the case.

39. Bumpus v. Fister, 21 Tex, 561 (1858); Smith County District Court Papers, Case #715
(Eowin Chancey); State v. Stephenson, 20 Tex. 152 (1857). The Wilson, Chandler, Nix, Farrel,
and Presley cases are cited above in notes 26 and 27.

i

MATERIAL CONDITIONS AND PHYSICAL TREATMENT / 151

cruel treatment, an offense with a minimum fine of $250 at the time, but
convicted him of whipping William Kelley's slave without due provoca-
tion and fined him $25." Chandler was found guilty of manslaughter, a
felony carrying a minimum penalty of one year in prison. Nix was con-
victed of assault and battery, for which, he was fined $25 and sentenced
to ten days in jail. Stephenson won an acquittal on assault and battery
charges. Chandler and Nix appealed to the supreme court primarily on
the grounds that they had not been charged with violating any specific
provisions of the laws protecting slaves against abuse, cruelty, or murder.
Chandler's lawyers argued, for example, that there was no law concern~
ing manslaughter of a slave. The supreme court ruled, however, that,
since slaves had always been treated as “persons” in the application of
criminal law, the common law extended to offenses against blacks as well
as whites when no special rules existed for bondsmen. As Justice Royal T.
Wheeler wrote in the Chandler case: “It seems especially to have been
the intention of our legislation . . . to throw around the life of the slave
the same protection which is guaranteed to a free man.” The convictions
of Chandler and Nix were affirmed. Stephenson's acquittal was appealed
by the state, whereupon the supreme court reversed the district court
and remanded his case for further action. A slave is not, said Justice
Oran M. Roberts in his decision, “property only, as a horse or any other
domestic animal.” Instead, bondsmen have personal rights, and every
white person does not have the right to whip any slave.”

Laws against abuse, cruelty, and murder and the supreme court's will-
ingness to extend the common law to bondsmen thus provided Texas
slaves with some protection from extreme physical mistreatment, espe-
cially if offenses against them were committed by someone other than
their own masters. Constitutional and legislative protections represented
general public disapproval of cruelty, and the possibility of legal action
nay have restrained some whites. Nevertheless, courts were unwilling to
convict masters or other free men of murdering slaves and extremely re-
luctant to interfere with what Justice James H_ Bell of the supreme court
called “the delicate and responsible relation of master and slave.” Legiti-

351. All these cases are cited above in either notes 26, 27, or 30.

52. The penalty for manslaughter at the time of Chandler's conviction is in James Wilmer
Dallam (comp.), A Digest of the Laws of Texas (Baltimore, 5), 167. The Chanuller, Nix, and
‘Stephenson cases are cited above in notes 27 and 50.

152 / AN EMPIRE FOR SLAVERY

smate punishment was so common and the line between it and cruel treat
ment so imprecise that legal protections for slaves were minimal at best.
“Much,” according to Justice Bell, “is left to the master’s judgment, dis-
cretion, and humanity.”® Those qualities varied, as every slave well
knew, from master to master.

33: Callitan v, Johnson, 22 Tex. 557 (3858).

Family, Religion, and Music

“THE STRENGTH TO ENDURE’’

His wife having been sold, and facing punishment himself, a slave who
belonged to Irving Jones in Anderson County committed suicide. He
“stood it as long as he could,” said the bondsman who told the story.
Slave suicides were not at all common, however.’ Bondsmen, although
most faced a lifetime of manual labor with at best adequate material con-
ditions while subject to punishment largely at the whim of their masters,
very seldom took their own lives. Their instinctive will to live was threat-
ened by the harshness and hopelessness of bondage, but at the same time
it was encouraged by several institutions that mitigated the psychological
conditions of servitude. What aspects of Texas slaves’ lives contributed
to the mental and emotional strength to endure, and what behavioral
adjustments did bondsmen make in order to survive? These questions
serve as a focus for the next two chapters.

Sizes of slaveholdings affected the psychological as well as physical
conditions of servitude. Approximately one-third of Texas bondsmen be-
longed to small holders, whereas the great majority were on farms and
plantations having at least ten slaves. Those who lived in smaller hold-
ings, especially the few who resided in towns, benefited mentally and
emotionally from having greater control over their own working and liv-
ing conditions than did their plantation counterparts. Some may have
had an advantage also in that closer daily contact with their masters led
to greater recognition of their humanity. At the same time, these bonds-

1. Am, Slave, Supp., Ser. 2, VI, 2140 (Steve Jones), VII, 2578 (Adeline Marshall, who told
of an old man who was whipped until he committed suicide).

153

PHIL GRAMM

TEXAS
QWnited States Henate
WASHINGTON. D.G. 20510
October 11, 1991
Ms. Martin

Richardson, Texas 75080
Dear Ms. Martin:

Thank you for contacting me concerning the death penalty. I
appreciate having the benefit of your views on this matter.

Iam working to ensure that our country is made safe from vicious
criminals who kill people or commit other heinous crimes; and I
believe that the best way to accomplish this is to ensure that
the punishment coming from our judiciary is both swift and just.

I have consistently supported the death penalty for capital
crimes. In the omnibus drug bill signed into law in 1988, I
cosponsored a provision that provides for the imposition of the
death penalty for the intentional killing of a law enforcement
officer. This bill also authorizes of capital punishment for
drug kingpins who commit or order the murder of another person.

You will be pleased to know that on July 11, 1991, the Senate
passed the Biden-Thurmond Violent Crime Control Act of 1991,
which includes provisions to curtail the current, endless series
of appeals permitted death-row inmates and to make the death
penalty applicable for an additional 51 particularly vicious
federal crimes. Provisions in this bill also make the death
penalty applicable punishment for murder with a firearm or for
major drug dealers. You can be sure that I will continue to work
with my colleagues in the Senate to make our courts tougher on
the criminals brought before them-and our country safer for the
law-abiding citizens who live in it.

I appreciate having the opportunity to represent you in the
United States Senate. Thank you for taking the time to contact
me.

Aye. >

PHIL GRAMM .
United States Senator

"s/s WOTE: Ms. MARTI IS A MEMBER oF
AMNESTY INTERNATIONAL Ww TERAS Awd iS
A STRONG CPPEWENT OF CAPITAL Punisneenr,
CRIME

out today, aie practically
inating the criminal and
ing other transgressions,

to other criminals when
middle of the night in a
few, witnesses looking on
in-the next day's paper.
public, Held at high noon.
gee. them. They should be
‘county where the crime was com-
e. friends and associates of the
the punishment.

T-note from ‘papers that: one state, Mississippi, I
ithink, has'recently decreed a “traveling electric chair”
hich -will go to'the point of the crime to inflict execu-
‘tion,, I heartily-agree with this procedure for it will
‘give’the public and probably.the pals of the criminal

gn" opportunity to see the majesty of the law.
let the’ friends of the criminal see him as he
ngedisftom his" cell ‘toward the chair, pasty faced,
‘eeping’ perhaps, “trembling—a far: ery from thesbig,

who burned down some’ innocent citizen,fqr}4ife

re Would, be far less

to follow: his footsteps. he would be hard indeed for

the potent{al criminals to reconcile the picture of the
hopeless, helpless; shambling doomed man with their
hero of the daily tabloids, that mighty Robin Hood,
who darted hither and thither over the countryside af
super speeds, shooting it out with officers.

No newspaper clipping can do justice to the appeatyd
ance of the sweaty pallor|on the forehead of the doomegy
man, to the reddening hues that suffuse that same £
head as the high voltagd thrashes through his bodg

Let his associates hear the shrieking wail of
generator as it, builds fp the death dealing ph
necessary to atolie a murder. It is a sound they
soon forget, Nor will’ they forget how help
masked figure lool sprained against
holding it secure fy i
the dead man,
that the public

Now, I
sadistic and,
told, Sucl
having to

“DEcEemsER APAO
CRIME DETECTIVE

de all,” but ‘the government! ‘thought Jt.

ante yous ot & talline wide to mar likely ‘that it was their few dol:
the Avriy find, thenssclves ‘onfoving i it lars a month that she loyed. mostly. ,
all-after a few weeks. But there are | Mae went to the nie fora cou fine,
é fitted for th ghd she's proba

gh stag thet “American draft the mackeb "now that. there's a. new.

back in the Civil. War. days! there
have been numerous’ attempts, to
evade serving, and now that men’are
again being ‘called to aes to de=

fond their country,” those same old
draft grafts ‘are beinj

More than one man has = tron known

of ‘ouekers i in uniform coming up,
Buf Gere be. piners es he,
pounced plans for oF putting official: =
Sra oe Reena

sa eet

4 a ee certainly: Piet, ef
mente for the boys
Jast to arms,

's something about res

we ha at ees a.man unsatisfied. wit
all that: Ang of thing. He wants ton te

ay: Soon: ney
ee another opportunity. Maybe it's.
ihe. old desire to show’off a little be~-

fore the other boys. But, whatever it
Js you can depend upon it that every
ipleler, and shrewd dealer, Poth in,
side and outside the camp jis

«on that instinct for all it’s wor the

HE eommlaiond ofeas ie ¢ fully.
Shown behind bars, William aware of at least nine-tenths of
 Muchhenbrotciy German | “athe pelt, thievery, Uni goet oh
fag Siyear-otd Mare do Tosee:| fcvowore ard, in. gome, instances
4 ny haye openly, admitted encouragin;
noi || tam for $100,000 ransom. wind they know’ theres cheating in
i ihe crap gates and af the card ta ob
ed ‘out of active pertiepation: in But they know also that it would be:
the long marches ant hese and tell ‘him the whole story. It’s the futile to try to stop it, ‘They. agi
fellows frequently sell their ‘ideas’ 2nd tell] ‘Army man can’ squeal ‘throw one man or a dozen in
to the new recruits, only: to: turn “about without losing the respect of his guard house, but others would spring
around and sing to the officer higher. buddies. ip to take: their plac :
up once they've ‘collected from the’ “Atound every Army encampment "When a inan Joins the Arniy he's,
suckers, there are a cerlain number ef young, supposed to be of age and have all
But one of the most vicious of all apparently unattached women lying hit apples, He's supposed to be able.”
the parasites within the ranks is the in wait tor the simple country boy to ‘take care of himself tinder at
ow, Joan shark, Every company ‘who's on the make for a “geod air! more dangerous conditions than those
east one and he's frequently 'Y°remember the case" of Meigpnis eontronted across’ dice spread and
the pay master or some minor jcom~ Mae, She was a good-looking little, it has.long been the unwritten law in =”
ioned officer who knows he .can broad with a. southern ‘accent and all . every armed force in the world that.
tnake ke At plenty. Suet on on. na aebtor of that—the kind ‘who “just loved to. even the. raw recruit.must look gut

Jo Jcoe pay be seen with a man in uniform.” God for his own interests. saa
day, Of course: the oitees ly L work kenows she must have been seen with “here's only one Wa to got that
through one of’ the enliste gnough of them before it was all over, If you must play. guy's

And .coming through on pay day For when her racket, was finally $e; game, lem how 1

vmeans kicking in with anywhere osed it was learned she'd married you tisk your roll on
to a hundi er eent on the| loan aif a dozen fellows, using as many tard or the toss of the rine

each week! ‘There's only one thin ‘And from each she was Grew ‘from. those |n naa ‘

for the ‘recruit. to do if ie one, thing 8 ae ry 9 i dollars frre as wel as butnige We Jittle’ gals that start. askit

Rigel in the clutches of one of these hol ging their government fnsueanee, questions. about -insurance and.
‘That's to put in-a complaint _polici and ‘when’ you play ‘around with

“Jn the “right Place—go'to the copa Peydae sald Tater she “Just loved them _olfer kind——it 4 Yon mast be

“WE NEED PUBLIC WHIPPINGS!"

CONTINUED FROM PAGE 4

| ;

based ona lifetime spent in desing Heh ht.- Nevei pamper. the criminal, ~. "Today és 1 Jook out of thé’ windo
with jeriminals as prosecutor, judge ig method works in New Jersey, of the pardon board ofies here at
and in my present position, ‘that if” they tell me, where such crimes have
these oe, crimes Wore suppressed, shown’ an ’almeee “waters Have
at their roots, they: would practically crease, I know! that.a stiff dose of
the leather—we “Texans refer to’ it
*"Pithink that no stronger hindvance _aslie betes the bast sean we’,
fo such erimes could be found jthan . have of controlling our hardest ptis-
the: erection—and  use—of good, " oners.
strong whipping posts erected in . Give the leather to the petty of-
every county in every State-of our fenders in public and let that be
Union, their penalty. If they come back for
mm Then, when a petty criminal is more, give hem a whipping as well
” cough let his sentence consist of a us the penitentiary sentence.

too many of them:

efore

' publie whipping, where everyone can Tn that way, crime will not only he they. committed their erimes -Wwere
: ' see, winly, this should act lo suppressed, but the punishment will assured of Une fact thal. prison was
strip the false glamour from his deeds serve as a ‘public warning to those at. “an easy jolt with football games,
and let him see them in their true home, rodeos, “moving pictures, magazines

i
i

82

and little work to do,” Besides,
there’s always, (they feel) the pos-

ally,
Thus, I sound a,warning.. We've
sgot'to’ do something to stop the

\
alive, with -a, bullet lodged close to
his heart, When the alarms and
sirens. of, the departing ambulances
faded off, the -police.,got down «to
work. os .
“Where Were at least eight witnesses
who saw Spencer during the “twenty
minutes of doom” that brought such
unprecedented : tragedy. | ‘There . was
not the least. shadow’ of' doubt that
Spencer was the. killer, » But city
Officials had a job on their ‘hands that
was in'many Ways as serious and far-
‘eaching- as the police would have
had if the killer was-still at large,
The-confidence of the community had

out several lives was deplorable.

it; he’-should have poisoned the
well-springs of community life was
heinous,

‘had been removed from at least one
°'sehgol. position for immoral actions
. toward girl students?”

CRIME DETECTIVE

crooks ‘from coming to the peniten-
Yiaryl "Too many. of them are, being
allowed to take the rocky route un-
knowingly, ‘Three years ago there
were only 5,214 prisoners in the
Texas Prison System. Today there
are 6,400, Millions of dollars are
being ‘thrown away by taxpayers in
Keeping and supporting this increas-
ing army of undesirables,

People you and Jmust be
taught the power of the Jaw and the
terrible,” stain its impress “leaves,
through demonstrations of its
stra

‘hd, what miore effective way of
“qgilling two. birds with one stone”
gan be devised than by giving these
ignorant journeymen of crime a les~
son before it's too late?

THE SCHOOLMASTER RUNS. AMOK

CONTINUED FROM PAGE 31

ture of unfulfilled. desire toward the
throng of laughing innocent girls
soon fo blossom into the first stage of
young womanhoéd. Was xt the frus;

. outburst?

While the news of the killin
flashed across the country with
shocking effect, and the District At-
fomey’s office ‘cleared tho, way
rand jury investigation, the police

t constant vigils at the bedsides
of the assassin and the two survivors
of the grim homicidal attack. Dortha
Talbert Jay in the deep shadow, of
death, a bullet lodged in her spine,
uncertain of recovery which at best
would Ieave her a hopeless paralytic.
Ruth Sturgeon lapsed fitfully between
consciousness and blessed uncon-
sciousness that dimmed her pain,

‘Spencer—at first thought to be
close to death—was not found to be
in serious danger, He lay looking uj
at the ceiling, his gaunt, face “an
haunted eyes in sharp relief against

=

res ‘in sharp
the ‘white of the hospital pillow. On .

order of District Attorney Buron
Fitts, he was removed from the
‘Huntington Memorial Hospital to the.
prison ward of the General Hospital.

sex motive? Was there a money
motive? The faith’ and tranquillity
of a large community demanded an

th
istant, his thin lips locked in im-

« penetrable silence. Instead: of the

‘words and visions that had pursued
jestion:

*, he. stirred and- seemed to react
to ‘the. question:

“Why did you shoot Bush?” De-
tectives, nurses, physicians, held
their ‘breaths

Whip ‘em, I say, where their asso- Spenser
ciates can see it; where they can committ:
hear the swish of the lash and the reads th
cries of the offender. sible fo

Execute them, I say, where every- otherwis
body can hear that generator whin- aria
ing and. see that tortured body cook- fective i
ing. ironie th

Not a pleasant sight, that, but
nein ‘ly Ene aictare ofa emudered iepening
man’s unmoving form or of a violated fangible
child’s corpse. facts cov

So, something's got, to be done to that had
maké law-abiders of ‘these errant ‘Cleath
yen ‘and thelr jssoclates even if you the Dik
have. to/take it out of their hides, fous, abo
whieh, as I've tried to show; is where teva
the'ptinishment strikes deopest. nee e

‘Let's get to the root of this matter, Atavesta
thereby putting an end to it. ‘ahd reat

Z ministre’
dered. (
faced it,
clear-cu:
admissic
the act:
criminal
wreck

Jan pu
With »
the oper
trict “At

“1 don’t know,” Spencer teaned. moned

“Fa yhedid’you shoot Alman? Speer Snags
‘ou shoo! in? Speer
vandeniipt”™ . strnet |

“T can't ‘remember why... .” he look

“Why, did you shoot ‘Mrs. Stur- of the
geon?” -His face twisted in a sudden plete nc
grimace of. hatred. were 1

“That! woman 4s no good.” form, of

“Why'did you shoot Miss Talbert?” * ing the
At that his lips quivered, | He, was Veite!
visibly moved; a sob’ racked his body, —know

“Oh, my God,” he ctied,. "did T ghastly
shoot Dortha?” ‘The occupants of the within
room froze, rigid with excitement, tory
“She was my best friend,” he gasped, “Gentle
‘This was the kind of angle the news- unforty
papers were waiting for, Here was derer. ¢
‘a possible love interest, But it proved t
to be false. Dortha ‘Talbert, when of not (

seemed strong enough to undergo be four
her first questioning, said: sanity-

“I know of no reason for his’ re- be ext
forring to, me that way, exoopt that vinee +
yealizin, but ins

that he was mental dise
any, ay
exitic

It
angle that the newspapers wanted,
jit, considerably aided the, peychla:

the frayed nerves
tered by the constant dosage of
insanity-producing drugs? OF. wat
“Spencer innately vicious, a murderer
with a'darl and evil mind that had
beon steeped in learning and covered
with a veneer of culture and higher
education?

CAT THTE |alienists began to dissect the
man’s personality, knowing, that
justice for this ghostly. crime weighed
in the balance of their findings. As
they were attempting to disentangle
the horrible complexities of Spencer's
character, the awful-news seeped out,
"The ‘Public Defender’s office was
preparing fo enter, a, plea of, rl
guilty. This meant that the murderer
might go free, yet this would be a
justifiable consequence » if, indeed

|
i
i
1
t
i
1
}
i
i
Fort Lavaca "Wave"

_ LYNCHING.

October 2%, 1976

Prt

Best Shot in Texas' Hanged Here-

Every self-respecting town in
ried a “hanging tree”
‘¢ early days. The City of
aligorda was entered from
by passing under a
ng” oak, Victoria had a
ng tree seen on Moody
eUloday, and Refugio used a
i Mesquite on the court-
eae lawa that grows there
ay for ils gallows. The
Stiad hanging “oak on the
Snare} ‘Ss heen dignified with a
oat historiacal marker, but
“lumbus, Texas, was better
for having two hanging
~ one for black people
@ilone for the whites,

Port Lavaca was not without
4 hanging tree, identified by
ave old-timers on Linn's
Sayou, while other believed
Ast the huge trees that grew in

fy

David Monticr’s back yard 124
years ago on Guadalupe Street
served the purpose.

The editor of the Indianola
“Bulletin” reported on April'8,
1852, that a “murder in Port
Lavaca” brought if about; “We
are deeply pained to announce
that Mr, James P. Fulkerson,
the sheriff of this county, was
murdered in Port Lavaca last
Sunday April 4, by a man
named Sharkey, a stranger in
this country,

“Mr. Fulkerson lived in an
early day in Missouri, and af-
terwards at Cape Giradeau, and
since 1838, mainly on this bay.
Knowing him as one of the best
and most honorable of men, we
cannot conceive how anyone
could find a pretext for an at-
tack upon him,

ee ee

“He leaves an interesting
family, consisting of his wife
and daughters to lament his
cruel fate. We feel sure in
saying that in 13° years
residence in this county he
made not one enemy, His
family is of high standing,

“We have learned the par-
ticulares: Augustus
Sharkey, the murderer, is
a’ late emigrant from
Mississippi. He provoked a
quarrel with a citizen of
Lavaca, and attacked him with
a sling shot. The weapon was.
wrested from him by a by-
stander, and placed in Sheriff
Fulkerson's hands, who had
just arrived and commanded
the peace. Sharkey demanded
the sling shot with a threat he
would “have it or him,”

(NOTE: The sling shot is a
lethal weapon according to law
to this day, a leather pouch tied
to two cords whirled by hand
and releasing the missile. With
a sling shot David slew Goliath.
Abraham Lincloln became
famous in Illinois as a lawyer in
a sling-shot. murder case.
“Cougars were hunted and killed
in the river bottoms of
Matagorda County with sling
shots as the only weapon in the
1850's, )

“Sheriff Fulkerson went to
Justice Maulding for a warrant,

. and Sharkey immediately got
‘his rifle, went to Maulding’s
. Office, and without warning shot
* Fulkerson

in the heart,
remarking that he “was the
best shoft in Texas.”

meeting was called to consider
the matter, and determined to
let the law take its course,
During its sitting, and
throughout the day, while in-
tense excitement prevailed,

Sharkey manifested the most -

it ~~ he told them
how he had killed three men in
Mississippi and had gotten
away, and that he would kill
four more in Lavaca. In every
way he defied an indignant
people in a community where
the deceased was loved by all.
“The sequel to this bloody
deed should not be surprising
although deplored. During the
night following, the guilty man
was seized and dragged from
the hands fo the officers and in
the morning was found
suspended to the limb of a tree,
“Over this sad affair we
would fain draw a veil of
oblivion, but it is accomplished.
Extreme cases arise. Here we
have a guilty, bloody man,
butchering in cold blood: his
fourth victim, hurling threats at
four more peacable men, the
court just adjourned for six
months, no prison or jail in this

reckle

continued

over

“He then made an attempt to .,

‘ escape on horseback, but was

seized and troned. A town

had

Pilates
§

(ae

bow ni how : ooh
MARK OF RESPECTABILITY — Every self-

respecting town in Texas had a “hanging tree” a »
in the early days. Some old-timers claim Port ser
Lavaca's tree was arnong, these oaks on Linn’s

or neighboring counties, the
sheriff slain, wilh his wife and
children sinking into the grave
-- how galling their hard fate,
with a certainity that vere the
law be enforced he could
escape. These are the facts that
palliate mob law; jet it serve as
a warning to tho: who regard
human life lightly.”

‘Thus ended John Henry
Brown's account of this mur:
der. An election notice for anew
sheriff, was. called by Chief
Justice Jefferson Beaumont
with ballot boxes at the Brower
House in Lavaca, in the home of
jam Miller at Green Lake,
oof Joho H. Brown in
a ocal in the bame of

1
i

$.K, MeCreary in Saluria.

On. April 29,1852, the In
dianola “Bulletin announced
that the wife of the deceased
sheriff had indeed " nile into
the grave," (he mable wide
of the late Sheriff Fulkerson
had died in Port Lavaca during
the past week.

‘On May 6, 1852, the three Miss
Pulkersons (Mary, 16, Frances,
14, and Mariah, 7), and Master
James Fulkerson, Jr., aged 12,
were registered into the Wberly
House in Indianola awaiting a
steamer on which ‘to leave
‘Texas and return to the Kast. In
the meantime, Alexander Cold
had won the sheriff's race with
82 voles, Almond Reed with 40,
and William Re awn 12,

Bayou, Others claim the huge trees growing in
yard on Guadalupe Str

12d years ago
e. (Wave photo)

However, before August 19,
, the “Bulletin” reported
“Tn consequence of the death of
the sheriff-elect Alexander Cold
of this county, before
qualification, a new election has:
been ordered for August 28,
1852.""

Willis Chamberlain was the
t to file for the office.

In the election of August 2,
1852, when it was voted Lo move
the county seat to Indianola
from Port Lavaca, it was also
voted that a "work-house” or
jail be constructed by a vote of
104-3, probably as a sult of
there being no jail for Sharkey
after his murder of the Calhoun:
County sheriff

fil

ay, August 25, 1991 84

Dal Times Herald

STATE CAN’T TRACK THOUSANDS OF FELONS

Former Death Row inmates granted parole

‘Parole dates indicatewhen an ~*/
‘gynate is next eligible Yor release.

lignway
81 in Tarrant County, Aug. 5, 1966.
“iter locking Robert Bran, 17,-and
Mark Dunnam, 16, in a car trunk,
‘McDuff and the accomplice raped
Louise Sullivan, 16. The boys were
‘Fatally shot as they tried to escape

the trunk. Sullivan fied on

“MParoled: Oct. 11, 1989, after

-Retumed to prison, Sept. 26,
31990.

MParoled: Aug. 14, 1986, after serving 16
FS.

ils is a selection of paroled

fess Rael exvists — ortesnae) sen Whereabouts unknown

pair ipl cyano This is a list of former Death Row inmates Eimer Branch Larry Lane
‘Beprison, many were quickly grant- ‘eho are non asain, Wage: 44 Age: 53
‘aerene nem Thomas Caraway Bisel jnown odatess: Bice bec ae
Kk

‘Rote: AI Death Row hates listed mage: 40 nee
had their sentences commu . ‘Capital offense: Raped Capital offense: Fatally
Pit can a se seth. Seen eects
‘Supreme Court outlawed the death Capital offense: nee ern, Mas 3 228 robbing her of at
penaity in 1972. Until then, Texes Moonie 60 cs enced to death Baytown Continental Bus
id other states routinely handed Seared eh rape, 1967. epot, Jan. 23, 1963.

“eet death sentences in cases.0f 5, pe during an ‘attempte mParoled: Jan. 16, 1986, Sentenced to death for
‘ope, even ifthe victim was not * xobbeiy In Houston, ee. after serving 18 years. murder with malice, March
Hiied.) 29, 1968. Sentenced’? wand offense: Fie to repor. 2, 1972.

geath for rhurder with mak lParoled: March 7, 1984, after serving 12

Status: Reported to Dalias after his release,
_then transferred to South Texas-and his paper-
“work was lost. Officials noticed his disappear-

lance and issued a warrant for his arrest on

May 22, 1991, more than five years after he

vanished. %

ice, Dec.15, 1969.
MParoled: Feb. 17, 1984, after serving 14
years.

‘MStatus: Granted annual reporting status, May
1989, Caraway did not report as scheduled in
Aprit 1991. Parole officials did not notice the
‘delinquency until alerted on June 19 that

years.
2nd offense: Failure to report.

Status: A warrant was issued for Lane’s
arrest on June 17, 1986.

Caraway is no longer living at his iast known Jackie Vance
address. Parole officials are investigating. No ;
warrant has been issued. Lowery .
mage: 47”
el Home: McKinney ceoreplicn aid eed
Capital offense: Fatall robbed Robert Farley, 52,
ennny fa mstrong . “f in Houston, April 11,'1967.
Last known address: en ales
Dallas Photo not ee:

Capital offense: Shot
Dallas service station
attendant, 59, in the chest
during a robbery attempt,
Dec. 16, 1970. Sentenced
to death for murder with
malice, May 26, 1971.

WParoled: Oct. 3, 1985, after serving 15 years.
2nd offense: Possessed marijuana,
weapons. Retumed to prison Feb. 20, 1987.
mParoled: Dec. 18, 1989, after serving 2
years, 10 months, on mandatory supervision.
INrd offense: Felony credit card abuse, misie-

meanor possession of drugs. Arrested Nov. 26,
1990:Released on $2,000 bond Jan. 17,
1991."

From Dallas County jl, be Cte
ffer serving five 2
ss: Lowery Was. acsued an eiecoier
on June 28, 1991, when a warrant was issued
for his arrest. The warrant was withdrawn,

2nd offense: Failure to report.
Status: Armstrong stopped reporting in April
11990 and was deciared an absconder July 20,

Status: Davis bonded out of jail after parole
officials declined to issue a no-bond warrant.
He disappeared after his release and was

‘serving 23 years. 1990. Due to an oversight, an arrest warrant
however, when parole officials were alerted declared an absconder three months later, on
2nd offense: Feros vest Ns fat eee od A AE. 98 et that Lowery had been found at home with his April 10, 1801, when a warrant was issued for
after he disap mother.

= ewes *

ing 14 years.

‘2nd offense: Failed to report to

parole officials for eight years

4989 trough 19808 Retumed to”
7 “prison, Sept nn

Earianddo Williams MParoled: March 6, 1091, afer “

n-omcnenogerving si months. ~

mHome: Fort iReports: Once a month.

choldup of the Payless Liquor Store Lee
uin'Dalias, Feb. 6, 1970. Sentenced Fade oot
Bivesth tor ruumiorwiin malice,

May18,4971.

(M2nd offense: Assautted his-wife
“during adomestic-disturbance in
Dallas. Retumed to prison, Oct 26,

Botee wor MParoled: Feb. 26, 1990, after: $3.40" for a

De atte, 5 ‘serving five months. s ‘bottle of wine,

pote poe 1MM3rd offense: Assaulted his broth: March 45,

children, Aug eriniaw whom-he accused of bur- 1963. Sentenced to death for mur

a gariang his ome with aeseball er with matic, March 20, 1968.

Soteeead ts i bat. Returned to prison, March’7,- _amparoled: Sept. 19, 1985, after
re ‘death for rape, plices, fatally: 1981. ‘serving 17 years. Wright, 45, owner of Fred's Food
March 14, 1966. Shot Herold << Parole datets:sune 2992 /-Ml2nd offense: Robbed Redline Watt in Dennison and stole

: 58, -Grocery Store in Angelina Cou 31,000 in checks and cash, May

‘MParoled: May 7, 1980, after ser «during the ——mommmmes Der. 4, 1989. igerenced tole in 25,1970. Sentenced to death for

murder, Sept. 23, 1970, and 99
years for armed robbery, Oct. 13,
4970. Later escaped with three oth-

hacksaw; captured in Louisville, Ky.

‘MParoled: Oct. 27, 1986, after

serving 16 years.

2nd offense: Robbery, wanton

‘endangerment and possession of a

handgun, Kentucky. Sentenced to

life in prison, July 1990.

mParole date: 1998
a

Ralph C.- Powers
mag

1965, Sentenced to death for mur
der with malice, Jan. 27, 1966.
‘MParoled: Feb. 8, 1984, after serv
ing 18 years.

‘2nd offense: Kidnapped man at
‘gunpoint, forced him to drive from
Adlington to Dalias where the man
‘escaped and alerted police, Feb.
19, 4985. Powers forced:his way
into a trailer home, where police
found him. Sentenced to life in
prison, 1985.

‘mParole datet: February 2005

*Melchor Ortega
-.

" -band and 2yearold daughter, Sept.

145, 1967. Sentenced to death for

‘MParoled: April 17, 1987, after
serving 18 years.

‘W2nd offense: With an accomplice,
robbed a string of Houston beauty
‘shops of cash and jewelry, forcing
patrons to: SO ee ‘to facilitate
his escape, spring 1!

Sentenced to Weta prison, 2988.
Parole date: June 2003

‘SOURCE: Texas Department of Criminal
Justice records

_—— $$ — _

TEXAS - GENERAL.

Hy isto! EHKON LE

—— "7

RACE ISSUE IN TEXAS

‘The exécitions of four black Texas inmates have

‘been stayed:in the past several months based on

ima by the defendants that they were
ted against during Sentencing because

Of race. A white man, whose execution :

‘pending; also has olted the race issue:

RAYMOND RILES: Stayed
Sept. 16, 1986, by the
U.S. Supreme Court.
Sentenced to death for
the 1974 murder and
robbery of a Houston
used car salesman, John

Henry. ~

CALVIN WILLIAMS:
Stayed Nov. 10, 1986, by
the U.S. 5th Circuit Court
of Appeals. Convicted of
the June 2, 1980, killing of
Emily Fields Anderson,
28, during a break-in at
her Houston home. .

ELLIOT ROD JOHNSON:
Stayed Feb. 10, 1987, b
the U.S. Supreme Cout
Convicted in the 1982
fobbery-murder of
. jiumont jeweler, Joe
_ Angel Granado, 67.

“ANTHONY CHARLES
WILLIAMS: Stayed April
13, 1987, by the Sth U.S.
Circuit Court of Ap als.
Convicted of the 1978
yan Weight, 13s
mn a
. Houston.

JOHN R. THOMPSON:
Scheduled to be executed
duly 8.Grantedachance |
to appeal his case on the
issue by the U.S. 5th

Circuit Court of Appeals.
Convicted in the May 1977
staying of Mary Kneupper
during an attempted

robbery in San Antonio.

‘Source: Attorney General
THE AUTHOR.

GLAMOROUS
DAYS

BY
FRANK H. BUSHICK

FIRST EDITION

09637

THE NAYLOR COMPANY
SAN ANTONIO, TEXAS

19 3 4

*TWUE NED ~ SVXid
GLAMOROUS ‘DAYS

the Garzaites fled and scattered. After the fiasco at:
Camargo, Garza lived the life of an outlaw, fleeing
from the Mexican authorities on one hand and dodg.
ing the United States troops on the other.

Garza finally got out of Texas, being driven ina
light, one-horse vehicle from his father-inlaw's
ranch to Yoakum, where he caught a train and went
to Nicaragua where he joined a revolutionary party
and was killed in a fight near Blue Fields.

The story of Garza’s escape from Texas was re-
lated to me by the late newspaperman and Congress-
man, Hon. Jeff: McLemore, who obtained the facts
from Sheriff Wash Shely of Starr County and his
brother, Captain Joe Shely, a ranger captain, who
knew Garza intimately and had first hand informa-
tion of all his movements.

Mr. McLemore said that an account of the death
of Garza was related to him in the winter of 1908
in Mexico City by Will Percy, a Mississippi lawyer
and orator. Mr. Percy told McLemore he was pres-
ent when Garza was killed and had no trouble in
establishing Garza’s identity by letters and souvenirs
which were found on his person. Among the sou-
venirs was the flattened winchester bullet which

Garza wore as a charm on his watch chain and which |

was shot into his body by Victor Sebree years before
in the fight at Rio Grande City. .

Garza was a forerunner of the later communistic
revolutionaries, Madero, Carranza, Obregon and
Calles, but his revolution failed to get going. He
started too soon. He tried to play in a big game
with small a stack of chips.

[242]

CHAPTER XXI
VIGILANTES AND DESPERADOES

MAN has been defined as a combination of chemicals
temporarily inhabiting an insignificant planet float-
ing in the cosmos. Especially temporary was his
mundane existence if he happened to be in Texas, a
generation or so ago. At that time our fair state
offered exceptional facilities as a place where it was
easy for a person to get killed.

The St. Louis Globe-Democrat used to run in its
daily edition a standing column of ‘“Texas Killings.”
The business men of Texas got so indignant at this
reflection on law and order in the Lone Star State
that they sent a letter to the editor threatening to
lynch any representative of the paper that showed up
in the state unless the offensive column was discon-
tinued.

The outside world looked upon Texas as the
haunt of the savage and the refuge of the lawless. A
man was caught red-handed in the commission of a
crime. His lawyer told him that his case was hope-
less and that he had better escape and run away.
“For Heaven’s sake,” exclaimed the culprit, ‘‘Where
can I go to? Ain't J already in Texas?”

The worst Texas desperado seldom killed a man
without weapons in his hands. Compared to the
present day Chicago racketeers and big shots of New
York gangsterdom, they were all perfect gentlemen
and ornaments to society. And you might say,
what else could a spirited boy do in those days but
be an outlaw? Plow corn or lay around the house
all his life? There was hardly any other way to
gain distinction or make any dough.

Many of the bad men were off-hand good hom-
bres. When one of them stepped up to the bar and

1243]

“2
GLAMOROUS DAYS

asked everybody in the house to have sumpin with
him, it was best to be polite and accept the invite.
Tt was worse than an indiscretion not to do so. It
was a good way to go to Heaven in a precipitate and
unannounced manner with all your sins on your
head. All hands felt they just had to humor these
boys. Why be nawsty?

The code exacted that every man should be

game, or at least be able to “‘stand his ground.’” The
law didn’t count for much. Now and then the
prim and orderly folks retaliated against the outlaws
and decorated the native cottonwood trees with a
particularly bad specimen, whose body dangling
from a rope’s end served as a gentle hint to others of
the same stripe to vamoose.

The Vigilance Committee was a regular institu-
tion during the 60’s and early 70's. One of these
vigilante leaders, who was a man of religious con-
victions and a sort of lay preacher, used to go about
with a rope coiled up in his hat, it is said. It is re-
lated that while delivering a sermon one Sunday
morning in church, the parson reached into his hat
for his handkerchief to mop his perspiring brow and.
brought out instead the significant coil of rope which’
he had used at the Vigilante neck-tie parties.

Shortly before the Civil War, Bill Hart cut high
jinks hereabouts. He was as batd a man in real li
as the modern Bill Hart acts in the reel life of
movies. Bill and his gang were a rollicking bun
of hard eggs. Dropping in on a Mexican dance
Market street in San Antonio one night in
1858, they got drunk on mescal and feeling gay
festive, shot up the place and killed an inoffensi
Mexican woman named Sefiorita Concepcion
Tarin. Hart and his gang rode boisterously throu;
the streets and took up quarters on South Alas
street, near the present corner of Market street. Re

[2441

Plaza.
f prison to be tried by the Recorder, Fritz Schreiner

VIGILANTES AND DESPERADOES

fusing to surrender to the sheriff, “Big Henry,” the
. &

officers attacked the house.
F In the
ield Stoup, Captain W. G. Tobi i
, t Gs in, C:
Stevens: fie Assistant Marshal Tayler Seon ard
e
sho oer ay. iso Was shot and Tobin
The house was rushed and
captured
ihe sae He said, “Kill me, fat sage oe
a " aylor said, “Let me kill him. He shot me.”
aylor caught Hart around the neck, placed his pistol
seatast the desperado’s head and fired. Hart fell to
ie gor a gorge a ja lor dropped and died by
i 3 iller, another outlaw wit!
rt Aaa sy Prowes sweetheart of Hart
i jouse and helped Hart load hi i
ball pistols. His body was exhibited in the ae

market house and funerals wi i

s with pub
accorded the two slain officers. Public honors were

“Big Henry” was afterwa i i
a rds killed in front of th
Sieg ees Hoag, a pioneer hotel on the north side
ain Plaza, in an altercation with Captain Ad-
es oper which should command a company of Con
erate troops then bei i ice
= ee eing organized for service

ob Augustine was a DeWi
! itt County cowb:
ae Meee oe ig space at San Antonio Sepa ae
is taking off was due to an oi i
Hie on the part of the citizens. He had nes
a be enlist in a company being made up for the
a te ge but got too much tarantula juice
- Cavorting around on his cow

he overturned a lot of chile con carne stands on the
hile waiting at the old Bat Cave city

tabbed him and the Vigilantes took him and hang-

-ed him to a cottonwood tree growing in the Catholic

[245]

&

posse were Sheriff Henry, City Marshal >,
GLAMOROUS DAYS

priest’s yard on the north side of Military Plaza. Bob
was suspected of the habit of picking up loose ropes
tied to other men’s horses. It was a dastardly crime
to steal a horse. A good saddle pony was worth at
least fifteen dollars.

The tree which Augustine was hanged on died.
As it was used more than once for hanging men, the
priests cut it down. They didn’t like the fruit it.
bore.
A Vigilance committee headed by Jack Helms
operated principally in Gonzales and DeWitt coun-
ties. It extended its activities so promiscuously as
to call forth much resentment against them through-
out that region, and almost an open state of wat
raged for awhile. The Taylor-Sutton feud grew out
of these operations. Several men were killed on both
sides.
Mat Woodlief was an early day terror who was
well-known in this section. He ran a bucket of
blood dump in Luling when that town was the ter--
minus of the old Sunset Railroad and a live sport
ing town. After being wounded in a fight wi
City Marshall Erichson at Houston, Woodlie:
finally killed at Lake Charles.

Bill Longley, another notorious man with a
ord of thirty-two killings, was finally hanged
Giddings. A story was rife for years that Longley’
execution was a fake, he being saved by a harnes
under his clothes, through collusion with Jim Bro
the sheriff, who was his friend, but the story
probably the only fake about it. He hasn’t
seen since. Jim Brown, the sheriff who hang
him, was also a man of iron nerve who never qu
ed before an outlaw or an enemy. A few y
later Brown was killed on a Chicago race track,
ing first sent two policemen ahead of him to her
his coming. He had turned turfman and

{246}

BILLY THE KID, SAM BASS, JOHN WESLEY HARDIN AND JESSE JAMES.

VIGILANTES AND DESPERADOES

> partner of Luke Short, a Fort Worth sporting man

of wide reputation as a gun fighter.

x Ok OK *

“Rowdy Joe” Lowe and Joel Collins, who con-
ducted a variety show and gambling hall in San An-
tonio, on the northeast corner of Main Plaza, both
turned bandits. They left Uvalde in 1877 with a
drove of cattle for the Black Hills. Young Sam
Bass, who had been hanging out in San Antonio
with his racing mare, strung along with them and
turned outlaw. They went on a big spree and got
broke gambling in Deadwood. Collins had bought
his cattle on a credit and owed most of this cattle
money to Texas friends.

They attempted to recoup themselves by robbing
the Union Pacific train at Big Springs, near Ogall-
alla, Nebraska. Masked and heavily armed, they
entered the express car and ordered the messenger to
open the safe. The messenger said the safe had a time
lock and could only be opened at the end of the
route.

One of the bandits began to beat the messenger
over the head with a six shooter, declaring he would
kill him unless the safe was opened. Bass, always of
a kindly nature, said he believed the messenger and
prevented the robber from killing him.

As the robbers were about to leave the car with-
out booty, one of them espied three stout little boxes
piled near the safe. Seizing a coal pick he knocked
off the lid of the top box—and there uncovered
$20,000 in bright gold coins. Each of the other
boxes held a similar mount. Not content with this
rich haul, the robbers went through the train and
held up the passengers. securing $5,000 additional.
While railroad officials, United States marshals

{247]
GLAMOROUS DAYS

sheriff's posses were scouring the country for
ie the wedia robbers were in Ogallalla where they
went after hiding their precious booty.

The story of the discovery and capture of the
bandits details some clever detective work on the part
of a salesman in the general store at Ogallala, where
Collins traded and reveals the robbers dividing up the
coin and planning their escape. The money hie
stacked up in six piles, each man receiving $10,00'
in $20 gold pieces. Collins and Bill Heffridge were
slated to return to San Antonio together; Sam Bass
and Jack Davis going to Denton county and Jim
Berry and ‘‘Old Dad’’ to Mexico, Missouri.

A few days after separating Collins and Hef-
fridge were apprehended at Buffalo station, Kansas.
Within a few hundred yards of the town were camp-
ed a lieutenant of the United States Army and a
squad of ten soldiers who were scouting for the train
robbers. Collins and Heffridge having been identi-
fied by the station agent he ran to the camp and
pointed out the departing bandits to the lientenant,
eee go two of the Union Pacific train rob-
bers!”

Collins and Heffridge when overtaken sought to
laugh the idea away, claiming to be cattlemen return-
ing to their Texas homes. The officer insisted on
their returning with him. Reluctantly the bandits
complied, but after riding a few hundred yards held
a whispered consultation. : wa

Suddenly they jerked their pistols in a wild ef-
fort to hold up the soldiers. The robbers were

tly shot and killed.
ee the legs of a pair of overalls in their packs, the
soldiers found tied up $20,000 in gold—new 1877

mintage. Not a dollar had ever been used and the ;

robber’s identity was indisputable.

(248]

VIGILANTES AND DESPERADOES

Bass and his companions returned to Denton and
robbed the fair in broad daylight. After a fight with
a posse, they headed for Austin. Sam gave it out
boastfully that he intended to draw “‘a sight draft on
the State Treasury, payable on demand.”

They decided to rob the bank at Round Rock
on the way down. With Bass were Frank Jackson,
Barnes, Arkansaw Johnson and Jim Murphy.

Murphy was a traitor and tipped off the Adju-
tant General Steele at Austin. Two squads of rangers,
one under Lieutenant N. O. Reynolds and another
under Captain Lee Hall, were sent galloping to Round
Rock. Local officers were also on the qui vive. The
robbers rode into town on July 21st, 1878, to re-
connoiter for the raid on the following day. They
were not recognized, but while buying some tobacco
in Copprell’s store, Deputy Sheriff Moore, _ taking
Bass for a country boy and seeing a pistol on him,
asked what authority he had to carry it. ‘“That's
my authority,” said Bass, whipping out his gun and
killing Moore.

The fireworks opened up promptly. Sheriff
Grimes came running up and was also killed. Barnes,
one of Bass’s gang, was killed. Bass himself was
shot by Ranger Dick Ware, standing behind a tele-
graph pole, but with the assistance of Jackson, as
brave a lad as ever stood in shoe leather, Bass made
it to his horse and escaped. Jackson literally carried
his chief across the street and set him on his horse, all
the while being under fire. They dashed out of
town together. The Rangers pursued and found
Bass six miles from town suffering from a mortal
wound. Bass died game, refusing to furnish any in-
formation about his companions. Jackson, who had
accompanied Bass, reluctantly left him on Bass’s in-
sistence, escaped to Mexico and never came back. He
still lives somewhere out West.

[249]

Ke

GLAMOROUS DAYS

‘A doctor told Bass there was no chance for his
life. Bass refused to tell anything about his family.
As to his pals he said it would do him no good to
give any of them away—that he was not built that
way. He said, “If I am going to hell myself I won't
take any of them with me.”

This wound up the Bass gang. Collins had been
killed in an attack upon a train in Colorado, and
Rowdy Joe having been killed by an officer in an
attempt to arrest him. ol,

The young outlaw was buried in the village
burying ground at Round Rock, with a crude head-
board bearing the name, ‘Sam Bass.” Several years
afterwards a woman, of modest bearing and refine-
ment, came to the town and without having much to
say to anybody about herself or her business, sought
out the grave of the dead outlaw, which she visited
and put in good condition. She was Sam Bass’s sis-
ter and the wife of a prominent physician in a north-
ern city. Her love for her wayward brother survived
his career of crime and dissipation and followed him
beyond the grave.

x K€

their snoring. But Hardin told Captain Gillette o
the Rangers that that story was all wrong.
he had killed only one man for snoring.
brother was shot down because he was brother
the outlaw, and not because of any crime he ha
committeed. And eventually John Hardin himself
after being pardoned by the governor and released,
from prison, was shot down from behind in El Paso:
in 1895.

{250}

VIGILANTES AND DESPERADOES

All the sporting and border characters dropped
into San Antonio at one time or another. Frank
and Jesse James, the notorious bandits, spent a win-
ter here. After the Missouri Pacific train robbery in
Missouri they headed for Texas. With them were
Charly Pitts, Clell Miller and Bill Chadwell. The
Youngers, Cole and Bob, who were cousins of the
James boys, joined them down here later.

They killed a bunch of cowboys down near
Brownsville and drove into Mexico the herd of cattle
the cowboys were driving and sold them. They
wound up in Matamoros, where the gambling and
free life of the old Mexican town offered congenial
diversion. One night a fandango was held in the
plaza.

Around the square stood rows of orange and
china trees. Beneath were stalls for the sale of
sweetmeats and pulque and tequilla. Gambling was
going on at tables set out for the purpose. Spanish
monte was the most popular game and money
changed hands freely.

In an open space in the center of the plaza some
two hundred couples were dancing to the music of
a band consisting of an accordion, a guitar, a harp
and a cornet. Waltzes were the favorite dance, for
the Mexicans, both men and women, are adept and
graceful dancers.

These bold, bad Americanos were short of social
graces, but they did not propose to be left out of the
fun. They secured partners and ambled into the
herd of swaying figures, but they awkwardly step-
ped on the toes of the graceful sefioritas and made
such a ludicrous attempt at dancing as to provoke
laughter and slanting remarks from the Mexican gal-
lants. The men were jealous and didn’t like for the
gringoes to dance with their women.

It didn’t take long for a fight to break out.

(251)

GLAMOROUS DAYS

Spanish silettoes flashed and American pistols smoked
up the scene.

Clell Miller and Jim Younger were both stabbed,
but the gringo outlaws killed four Mexicans and suc-
ceeding in reaching their horses and escaping in the
darkness to the American side of the Rio Grande.
They knocked over and played havoc with several
monte tables in the getaway.

They reentered Mexico the next day higher up
the river and before leaving the land of God and
liberty robbed a caravan of carettas owned by Mexi-
can merchants engaged in the overland trade. They
escaped back to Texas by way of Piedras Negras. In
the guise of cowmen and gamblers they spent several
months in San Antonio carousing and living easy off
their booty.

On their return from the Rio Grande Jesse and
his gang passed a party of poor immigrants traveling
along the road. Later they saw Indian signs and
figuring that the redskins would attack the immi-
grants they backtracked and reached the scene just in
time to fight off a band of Apaches, Jesse himself
rescuing a woman and two children who had al-
ready fallen into the hands of the redskins. 3

The next exploit of the James gang in Texas:
was the holdup of the Austin and San Antonio stage:
at a point between the present towns of Kyle an
Buda. Among the passengers were Colonel Geo.
W. Brackenridge, the San Antonio banker, Bisho
Gregg of the Episcopal diocese, and several womens
The men folk were made to fork over their valuables
but the women were gallantly returned their valu
ables by these chivalrous road agents.

Luke Short was a noted race track man am
short card player, a quiet, genteel sort of man of
steel nerves and large operations in the sporting realm
He was raised up about Gainesville and spent hig

[252]

VIGILANTES AND DESPERADOES

youth on the cow trails of the northwest and fight-
ing Indians, having rendered the government great
service as a scout in its campaigns in the 70’s against
the Sioux and Ute Indians in the Black Hills
country.

Afterwards he was one of the noted sporting
men and gun fighters which made Dodge City fa-
mous in the days of the big cattle drives from Texas.
In 1884 he returned to Texas and settled down in
For Worth, where he gained almost national noto-
riety by killing Jim Courtwright, another western
character of almost national reputation as a scout
and gun fighter.

This encounter took place on the stairway lead-
ing up to the White Elephant gambling rooms in
Fort Worth. Though his antagonist was at the
head of the stairs shooting down at him, Short
steadily advanced upstairs, shooting as best he could.
It was a test of cool nerve and accurate shooting and
Short proved himself the possessor of both these
qualities, for Courtwright was next seen at the un-
dertaker’s parlors wearing a new black suit and a
stiff white shirt with a geranium in his hand.

For several years Short was a partner of Jim
Brown of Brenham in race track operations. Short
was an authority on sporting matters and a great
lover of a fine horse. One of the noted sons of the
famous horse Longfellow, with a fine record on

many race courses, was named for Luke Short.

Short’s offer of $29,000 to Sullivan and Jackson
to fight at Fort Worth was bona fide and he offered
the pugilists the best of New York references that
the money was in the bank and that he meant what
he said. He was always a player for high stakes and
during the old fairs in San Antonio ran a partido
game, which was a monte game extended on a long

(253]

GLAMOROUS DAYS

table where any number of players could bet, and
the ceiling was the limit. ,

There was nothing short about Short’s game.
He would turn for any sized bet, no matter how
big, and he paid and took the big bets with as much
aplomb and insouciant indifference as if they had

been goober peas.

Life in LaSalle and McMullen counties had many
thrills during the days of the Altito pasture gang
along in the 80's. There was considerable trouble

cattle, as well as politics concerning the sheriff's
of Sheriff Charley McKinney
he latter was

four notches on his pistol handle and added another
one day by killing an inocent third party while en-
gaged in a duel with Charley Bragg on the streets
of Cotulla.

Such bad marksmanship deserved popular execr:
tion. It was a very bad example to the youth of
country. A hastily formed mob put a rope around:
Green’s neck and stood him on a goods box under
tree. :

“D—n it, boys, ye ain't goin’ to hang me
ye,”’ asked Green, who knew most of the crowd.
was told that that was exactly the program. As' th
rope was thrown over a limb and tightened, A
Cullough said, ‘Well. if I’ve got to be hung. I
glad I'm going to be hung by my friends,’’ and
were his last words as he swung clear of the box.

Alfred Allee, who lived on a ranch in the w
est part of LaSalle county, gained for himself

[254]

VIGILANTES AND DESPERADOES

reputation of being a fearless and dangerous man.
He was born in DeWitt County, May 31, 1855,
but lived and ranched in Karnes County up to 1882.

In those days whiskey and six shooters were part
of a man’s appurtenances. Allee attended a country
dance near the village of Runge and became involved
with a man named Word and killed him. For this
he was tried and acquitted in the courthouse at the
old county seat of Helena, but as new settlers began
to move in and crowd up the country about that
time, Allee gathered up his little stock of cattle, about
five hundred head, and moved over to LaSalle
county further west.

In 1886 he and a Frio county stockman named
Frank Rhodes had an altercation on the streets of
Pearsall and Rhodes was shot and killed, for which
Allee was indicted, tried and acquitted.

Allee’s next exploit which gained him consider-
able reputation or notoriety was his slaying of Brack
Cornett, a refugee train robber and outlaw, at his
ranch.

Cornett and his associates had pulled several big
affairs in South Texas in 1888. They withdrew
$25,000.00 in funds from a Cisco bank at high
noon one day without the formality of writing a
check, and stopped a train-one night at the little tank
station of McNeill, out of Austin a few miles, and
took $20,000.00 from the express messenger.

Associated in these high finance and railroad
Operations were John Barbour, an outlaw from In-
dian territory, Bud Powell, another of the same ilk,

; another passing under the name of Charley Ross and

another known robber named Bill Whitley.

The officers were pretty well wised up to this
gang by this time, and a big price was on the head
of the leader, Brack Cornett. This gang attempted
a hold-up of a Southern Pacific train at Harwood on

(255]
GLAMOROUS DAYS

September 22, 1888, but this attack was frustrated
by deputy U. S. Marshals. The deputies were -
ing in the express car armed for bear, and when 4
robbers attempted an entrance the officers opene
fire and drove them off. One of these deputies was
a young man named Duval West of San aa
tonio, who afterwards ree ae States Federal

the Western District of Texas. _
Judge on days after the Harwood attempt Bill Whit-
ley was killed at Floresville by United States we
shall John Y. Rankin and posse, Whitley being be-
trayed by a member of the gang who was tally :
spy for Rankin and who kept the Marshal aye
of the gang’s doings. Barbour got back to -
homa and was killed there by officers December 7h
1889. Powell was captured in Montana an
brought back to Texas and given a fifty year sen-
tence at Leavenworth.

After the Flatonia attempted robbery, Cornett
headed west through the chapparal. He saeended 0
make his escape arid get out to Arizona, but on i
way stopped to hide out and rest a few days at w “
Allee ranch in LaSalle county. He and Allee ha
been raised in the same part of the country and knew
each other well. He showed up in Allee’s camp one
morning at breakfast time, but instead of extending
hospitality, as the story goes, Allee attempted ae
rest Cornett and in an exchange of shots, Allee He
ed Cornett. Allee collected the reward of $3,800. ‘
which an express company had offered for Cornett’s:

tion. ¢
Geet bea Allee boarded a train ve dey at paces

aking offense at the manner of the negro
a shot and killed him. Shortly afterward he.
was written up severely in a paper published at
tulla, and sent word to the editor, J. W. Bow
that he intended to kill him. Bowen was seated in

[256]

VIGILANTES AND DESPERADOES

train at Pearsall on another day, in the year 1891,
when Allee boarded the train and entered the same
coach. Bowen tried to shoot, but Allee shot bim
first. Allee was acquitted in the courts on all the
charges returned against him. He later went to La-
tedo where he expressed his intention of staying out
of trouble. He was regarded as a dangerous man
and was killed in a saloon there, August 19, 1896,
by City Marshall Joe Barthelow. In the personal en-

counter, Barthelow grappled Allee and almost cut
his head off.

A brave and unusual man, combative to a de-
gree which filled his own life with trouble, Alfred
Allee had friends of a lifetime who found him like-
able and dependable with those he chose to call his
friends. He had a certain personal magnetism which
marked him as an unusual character of great personal
force.

Ben Kilpatrick, the “tall Texan,” bank and
train robber, who operated with Black Jack Ketch-
um’s gang of robbers in Colorado, Arizona, New
Mexico and Texas, was captured in San Antonio
in 1912. His detection was due to his attempt to
pass some unsigned bank notes which had been taken
in a train robbery neat Wagner, Montana, by the
Hole-in-the Wall gang. His boots were full of this

money when he was captured. Kilpatrick made his
escape.

Sonora, Texas, April 2, 1901, by Sheriff Ed Briant,
of Sutton county, Texas. Carver at one time was
a leading member of Tom Ketchum, alias “Black
Jack” gang, and was in all but the last train robber-
ies of the Ketchum gang. He was afso in the big
fight of July 16, 1899, near Cimaron, New Mexico,

at which time Sheriff Ed Farr was Killed At she [sc

break-up of the Ketchum gang, August 1899, Carver
[257]

Bill Carver, alias G. W. Franks, was killed a/c)
fr

Ch
v

ial
GLAMOROUS DAYS

joi the Butch Cassidy crowd, and was in the
joints cbbery at Winnemucca, Nevada, September
19, 1900, when $32,640, all in gold coin, was taken.
Carver killed Mr. Oliver M. Thornton, near Eden,
Texas, Concho county, just two or three days be-
fore he was killed at Seng é # with
e Kilpatrick, a brother to Ben, was

Carmen iken he was killed, and was badly a
but recovered. It is said that Carver's first wife,
not being true to him was the cause of him tarnieg
outlaw. He then left home and joined Tom an
Sam Ketchum in the train robbing business.

Ben Kilpatrick was killed near Sanderson, Tea
March 13, 1912, during an attempted hold-up o .
Southern Pacific train. He was caught off guare
and hit in the head with an ice mallet in the hand Is
of a nervy express messenger, David A. ‘Trues a
(Ole Beck was also killed in this same hold-up. He
and Beck bad been cell-mates in the penitentiary.)
Ben Kilpatrick had been out of the Federal ml
tiary at Atlanta, Ga., just one month, where:
served from November 1901, to February 19 a
being in the Wagner-Montana train robbery July 3,
1901 on the Great Northern Pacific. He was car
tured at St. Louis, Missouri, November 5, ee
with a large amount of unsigned bank notes in his

rip, Or suit case. :
. PLaura Bullion, a woman who had been Bill
Carver's common law wife in Texas, was capetres
with Kilpatrick at this time. She came from Knic
bocker, Texas, and was given five years in priso!

Harvey Logan, alias Kid Curry, was we
plood-thirsty member of the Cassidy gang. ie was:
given credit for killing George Scarborough nee Be
Simon, Arizona, April 4, 1900. George Parkers
Harry Longbaugh and Harvey Logan left the count
and went to the Argentine Republic, South Ameri

{258]

VIGILANTES AND DESPERADOES

For awhile they contented themselves on a cattle
ranch, but later began robbing mines and banks and

were finally attacked by soldiers and killed out at
their ranch.

Comelio Hanks, another robber, was killed in 4 (fh

west side honkytonk in San Antonio by Pink Taylor
and other police officers April 16th, 1902. Hanks
shot police patrolman Walter Harvey, but a heavy
buckle on his belt stopped the bullet and saved
Harvey’s life. Hanks was another product of DeWitt
county, a very quiet youth, until he turned outlaw.

Pat Garrett, the famous slayer of the notorious
outlaw Billy, the Kid, in New Mexico, after that
killing and a defeat for reelection as Sheriff of Lin:
coln County, came to Texas and spent five years as
a resident of Uvalde County, from 1891 to 1896.
He bought land and was in the horse business and
was fairly well-liked in Uvalde. At the request of
New Mexico's governor, he accepted an appointment
as Sheriff again and returned to New Mexico to deal
with some other outlaws in the same manner that he
despatched the Kid.

When_ Roosevelt was elected President he ap-
pointed Garrett Collector of Customs at El Paso.
During Garrett’s term of office, President Roosevelt
visited San Antonio and was given a dinner at the
Menger Hotel. He invited a few of his friends to
the dinner as his guests, including Garrett. Pat in

turn invited his friend, Tom Powers, to whom he:

had presented the six-shooter with which he had
killed Billy the Kid, and Tom accepted the invitation
and was presented to the President. Powers was
proprietor of El Paso’s well known Coney Island
Saloon, and had some notoriety in keeping with the
character of the place he conducted.

When Roosevelt learned that Garrett had brought
a saloon man to his dinner, he asked for Garrett's

[259]

vl
GLAMOROUS_ DAYS VIGILANTES AND DESPERADOES.
resignation as Collector of Customs and that ¢
Pat Garrett’s career as a Federal official. Garrett
later killed in New Mexico. :

That the latter day or modern bad men are
desperate than those of the past is shown by the
ploits of “The Newton Gang.” These Texas
made the James boys and Al Jennings look
pikers. Joe, Willie and Jess Newton lived
Crystal City thirty years ago where they started
and were known as the meanest boys in the count
They robbed and looted for twelve years, pt
a bank robbery at Winters, Texas, in 1921,
$20,000, one at Hondo ,the same year for $150,000,
another at Houston in broad daylight for $30,000,
one at Boerne for $150,000, one at New Braunfelg
in 1892 for $15,000, San Marcos in 1924, for $50,
000. They pulled train robberies at Denni
Bells, and Texarkana, and a big mail train robber
at Chicago on June 12, 1924, which netted them,
half million or more.

J. S. McMillan, alias Joyce Holliday, now dead
and Herb Holliday were also members of the
ton gang. Holliday was killed by members of
gang near Tulsa, for tipping off the officers,
death carrying out the law of banditry that who
squeals must die. he officers finally trailed do
these robber barons. Jess was arrested in Del R
and the others were wounded and captured and
to prison in Chicago. They used gas and ma
guns, the first bandits to adopt World War meth
These Texans set the pace in modern methods, aft
wards adopted by the gangsters of Chicago and o
large cities.

Nearly all the outlaws and desperate men ca
to tragic ends, proving that outlawry doesn’t pa
in the long run. Most of them died with their b
on in mortal combat, some on the gallows by

due process of law, others dangled from a i
at the hands of mobs. 8 rope's end

Their exploits are not recorded on the sedate
pages of history. Their desperate encounters and
futile lives will fade from recollection in the perspect-
ive of passing years.

He who would fain follow their example may
expect to verify the words of the psalmist, “Man
that is born of woman is of few days and full of
trouble. He goeth forth in the morning full of hop,
and yea in the evening he is cutteth down with a win-
chester ball.”

[260]
{261]
Texas Ceblekie

: Gov. ©, B: Blgu7I= Wham Mii

By
Hon. O. B. CoLQuirr

Member of ,

Gnd eminent fairnecs have ma
inspired huis deep interest in the betlerment of
county. We asked him for 0 personal message to 7. D. Ad, readers on this rabgecen od follows, Ed,

E have made great strides in this country in our treatment of con-
victs but there is still room for improvement. And one of the
greatest steps forward would be a change in our general attitude
toward punishment for the criminal,
l have always felt that prosecutors should look beyond the facts of
punishment to the day when the prisoner is to end his sentence and be ready .

broken, with a grudge against the law and all its agents, then’ the punish-
ment has been a very bad thing indeed. This man is in extreme danger-of

When I went into the Governor's office in Texas in 1911 the peniten-
fary management, as it always had been, was a sore spot in that state’s
affairs, .

The system of leasing the “surplus” convicts was then in vogue, the
unfortunate prisoners being leased out to planters, ‘lignite miners and rail-
toads. This system I abolished, and confined all convicts to state farms
except the incorrigible ones who were kept inside the prison walls.

The mode of punishimeht of convicts at this time was to strip them and
whip them unmercifully on their bare backs. This was excruciating torture,
It was barbaric, T-ended all that by directing the prison board, who
were my appointees, to abolish use of “the bat”, as it was called. This
was a leather strap fixed to a handle, made of thick rawhide, about three

TROE DETECTIVE Lie F ares
ule, 1932

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106 True Detective Mysteries

Have Faith in Man

(Continued from page 5)

hotter discipline and moro satisfuctory xpress their gratitude for this clemency
rosults in tho works of the convicts, ‘The und Unk mo for giving them a chine
change “was especially noticed in the ‘These experiences avo served imnmeastir-
morale of the prisouet, “I built sanitary ably to stiongthen my faith in man.

homes’ for them on the “convict farm”, soveral counties applied to me to parole
‘As Governor I yas criticised by my convicts to thom to work on the Youds,
cnomies for what they termed my free and so I had the Atlorney-Ceneral draw
uso of the pardoning power, During my a contmuet with the eownty commissioners,
two terms I granted about, twolve hundred atipulnting they were to feed and clothe
patdons, Under our Inv then, one of the the oonviets and pay mo fftoon dollars
penalties upon the conviction of crime per month for each man, Half of this
was the forfeiture of “citizenship”, and money I turned into the state treaswry
many of these pardons were to those who to tile credit of the penitentiary, and the
had completed their terms in prison. and other half T sent every month to. the
pardon was necessary to restore citizen- family of tho convict, In my. contract
ship. Bub ‘out of all the pardons I with. the various coumly commissions, I
granted, ninety per cent wore conditional required that the men he in. theit camp
4 + pardons, and T rarely over issued any by 9 o'clock at night, that they attend
other kind. I found this the better plan religious services on Sunday, and: wear

for the renson that if T made a mistake I no stripes or shackles,
j | could correct it by cancelling tho pardon, ‘The experimont was a success, In our
‘My plan worked admirably, for out of ponitentiaries, ns n result of syinpathetio
the twelve hundred pardons I granted in treatment of convicts, we browght about
this way I had to cancel only eight. I better discipline and fewer escapes. I
frequenlly meet men in ‘Texns now who found that' the men responded” in a

The Line-Up

Quarterly Fugitive Summary Chart
(Continued from paga, 60)

Deo SS U8 HAGAN, James RuvwaMar, 29 R_IT
7 Ua T

ADAMO, Franke.

:
rr]

"AUER, Som RTO M2HG_HUM_H HARRIS Jom Weslo Jn 8
Ee TAMESSa NOON Sa a 100
DAIRY, BisnonTel 9 Ute 09
SU) WERDER, William....June '3231__1O
DARKER, ProtnooAO BEB rong, Gla
Hitt Jemee an 4a)

BARNETT, Mose....Sept, "31
BEALE, Ethan Irvin, Oot. $31 HINES, Emory...

BEHAM, Harry..... July 92 WRLULWUL
WWULWUE = HOWARD, Roy 1

BERNSTEIN, Willlam,Nov, ’31_1_R_OL_§
7

RW JOHNSON, Roy.s.seeFeb, 82
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SDURKE, Fred... Oct, '30 Joty 32
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SMANGRATORDI, Mighae

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camps, which were substantial modom After I abolished tho lensing system, *

wholehenrted manner to fair treatment,

me,
i to help the criminal reha-
bilitate “himself has other ramifications,
Always, from the beginning to the end
of py term, I endeavored to instill in the
sonbiot a fooling that tho hal a chaneos
and «jf he would only behave himself
he could depond upon mo to help, And
I succebded.

Every form of ere! and inhuman
treatment of convicts ought to be oblit-
erated" from the penal institutions of our
country. The wardens and guards should
bo men of sympathetic understanding of
the real reason underlying the purposes
of punishment.

And when ‘this understanding finally
comes to those, whose business it is. to
punish tho convicts, then this country will
have made great strides toward a final and
satisfactory solution of her crime problem,

SOLISON, Josoph.....April 'S2_8_Re_OF 20
9 om
PARK

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aniBegarted :

TRUE DSTECTIVE M

GAZINE, FEBRUARY, 1963.

al@l
double length feature

BY STAN REDDING

OF THE TEXAS RANGERS

Ranger Captain Johnny Klevenhagen, a throwback to an earlier era,
made the fabled gunslingers of the Old West look like
pantywaists. For sheer guts in the face of staggering odds,

he has few—if any—equals in the annals of American lmomen

to an era of the West that had vanished with

the dust of the last trail herd and the fencing
of the prairies. It is doubtful that two more danger-
‘ous men ever faced each other in the heyday of the
frontier. Had they met 75 years earlier, they would
in all probability have settled their ‘differences
quickly, with little formality. The finish would have
been echoed in the harsh cough of a Colt'’s revolver
and etched in the dust in blood.

Now, the natura) impulse of the one shackled by
the stern code of his calling, that of the other by @
‘cunning caution, they sat in a modern motel room
and fenced with words as sharply-honed as skinning
knives.

One was dressed in a cowman’s garb—soft ex-
pensively-tooled boots, hard-weave suit and crimp-
brimmed Stetson that would have seemed affected
on many another rian, but which he wore easily
and naturally. He was tapered like a wedge, with
the legs of a horseman, and there was an Indian cast
to his features, heightened by the darkness of his
skin and eyes.

Ts: WERE THROWBACKS, both of them,

‘The other wore sports clothes that obviously had
been selected in the best shops. He was fair of skin,
brown of hair, and handsome, his good looks ac-
centuated by the smile that seemed perpetually to
frame his even white teeth. He was altogether a
personable man—until you looked into his eyes.

They were blue, the blazing blue of St. Elmo's
fire, and they crackled now with baleful lights. “I
understand you're pretty good, Ranger,” he said
softly. “But you're just another cop to me. You've
got nothing on me and you know it!”

‘The Texas Ranger was unperturbed, “I've got all
I need on you, as far as I'm personally concerned,
Norris,” he said evenly. “I know you gunned down
all those people up there around Fort Worth. I also
know you're not going to get by with it down here.
If I hear of anyone being shotgunned in my district,
Tim going to be looking for you. Now, you get out
of Houston and you stay out. This is all the warning
you get.”

Jene Paul Norris shrugged. “Why not? I just
came down to see Pete. But don’t think you're roust-
ing me. My business here is finished.”

PAVED = SVK

“Tve been told of your brags that
you'll Kill me,” the Ranger snapped.
“Well, I've got a shotgun, too. If you
want some of it—come on!” He strode
away.

“PH be seeing you . ..” Norris called
ater him.

‘Texas Ranger, Captain John Joseph
Klevenhagen once “stayed glued” to
the back of a wildly plunging, horse
while a desperate gunman, s
the ground, fared’ five shots at him
from a distance of less than 20 feet.

‘Klevenhagen coolly got his horse un-
der control. Holding the panicky ani—
mal steady with the tensile steel
strength of his legs, he raised his short
barreled, 12-gauge shotgun and, in his
‘own words, “shot that S.0.B. loose from.
his pistol.”

Had he worn the badge of any other
law enforcement agency, much might
have been made of that incident. But
be was a Texas Ranger, and Texans
‘expect nothing less than’ iron courage
in the men who wear the silver star
superimposed on a blue dise.

‘And because the Ranger was Johnny
Kievenhagen, editors generally dis-
missed the incident with three para-
graphs on the inside pages. For Johnny
‘Klevenhagen, as they say of that fellow
‘on television, was a legend in bis own
lifetime.

It is said of the Texas Rangers that
they “ride like Mexicans, trail like In-
dans, shoot like Tennesstans, and ght
like the very devil." Johnny Kleven-
hagen aid all those things and. an ex

is rewritten, Klevenhagen undoubtedly -
will rate detailed mention, for it is
doubtful that any other lawman, be-

history of the organization, Kieven-
hhagen respected no sanctuary for a
murderer, accepted no limitations to
his authority, state, national or inter-
national, once he had taken a trail. He
tracked ‘down killers all over Texas,
confronted them in a score of other
states, hauled them out of Canada on
airliners, and brought them on horse-
back out of the mountains and deserts
of Mexico.

‘Once he faced them, they had their
choice of three alternatives—either
‘accompany Klevenhagen peacefully, or
incur extensive medical treatment for
miscellaneous anatomical perforations
“or be buried where he found them.

‘Johnny Klevenhagen never consid-
ered himself a gunfighter. He always
regretted having to “go to the pistol”
But circumstances forced him to be-

Norris, credited

with 4Qedd killings, shot it out with Klevenhagen—and lost

was tel! enough-alimost she feet—and
envy enough--150 pounds, And tough
enough. Many a young bully could tes-
tity & the puneiing power in his wey
frome. So what was a the fuss about
nae?

But it it was age they wanted, age
they'd get He grew a heavy black
Inustache. It made him appear several
years older, and he bought a poll tax.
Every pessoa in Texas over 21 is Te-
Gulred fo pay 4 poll fa He eave his

as
“Sarmed thus with indisputable proof
that he was of voting age—an impor
fant qualification for cope in ‘Texas
evenhagen made an application wie

‘water, Hell, it wasn’t much different
‘than riding @ horse.”

Prohibition was still in foree in those
days, and Mexico gushed a steady
Stream of illcit Uquor northward.
“When you jumped a car at night, you
didn’t know whether you were chasing
fa speeder or a bootlegger,” Johnny

said.
‘One night he was parked on the out
skirts of San Antonio when a large

glass windows,” Kle
"Tigured they were in too big a hurry
to get that fellow to the graveyard,
though, so I lit out after them.

“I drew up alongside and shouted for

‘The young officer slammed on the
brakes, usly unit by the
splatter of shot. He hauled out his .49,
poured the gas to the motoreycle again
and quickly overtook the

“sy shot both tires off the reat,” he
said matter-of-factly. “When it wob-
Bled to a stop, I took the two men

prisoner. Of course, the hearse was
Toaded with whiskey.”

‘Early in his career, Klevenhagen be-
gan cultivating underworld sources of
information. With his dark coloring
and fluent command of Spanish, he was,
particularly successful among the Lat-
in-American population. He built a
reputation as a scrupulously fair man
who never broke his word, never
breached 2 confidence, and never re~
vealed the name of an informant.

‘His high record of arrests, his cool-
ness and courage under fire, and his
uneanny knack of being at the right
place at the right time soon attracted
the attention of Constable Will Woods,
‘of San Antonio's Precinct L Woods
persuaded Klevenhagen to become his,
chief deputy.

‘When Woods became sheriff of Bex-
‘ar County in 1936, he took Kleven-
agen with him, ‘giving the young
officer almost a free hand. In the next
five years, Klevenhagen established an
awesome record as a manbunter.

‘He brought in a former deputy sher-

Sat

come as adept with rifle, pistol and
shotgun as one of his early-day pre~

“made an American citizen out of
him”

1f actualy grieved Klevenhagen that
s0 many men tried to “learn” him how
1 "Those Outlaws who would have
surrendered to 2 small-town constable,
if braced, felt compelled for some rea
son or other to take a crack at Johnny

Theta friend once told him gloomily.

‘John Joseph Klevenhagen was born
to die a Ranger. For the past 27 years,
the elite police corps has hand-picked
the members who serve in the small
group. The Texas Legislature, last Sep-
tember, authorized the Ranger corps to
‘be increased to 62 men--six captains,
six sergeants and 50 Rangers. But
Johnny Klevenhagen, while still a fuz~
zy-cheeked boy, picked the Rangers in

Frank Klevenhagen, Comal County is
north of San Antonio, in the mesquite
country of Texas. As soon as he could
walk, Johnny—in common with most

‘Texas ranch kids—began trying to ride
“anything with hair on it that was big

of the Rangers. They were big men,
mounted on fine horses. More ofted
‘than not, they were armed with two
six-shooters, a rifle, sheath knife, and

outstanding ability in the feld of law
enforcement.
If the Rangers wanted only crack of-

cer was too young to pack a heavy .45
and a

So Johnny got a job as a lineman
with the San Antonio light company
while he looked over the situation. He

Kleven!

two of Ball's waitresses had been “gator bait,”
igen said, when parts of women's bodies had been
dug up near the tavern operated by “the alligator man”

wanted for the holdap-murder of a zrocer

Ranger Klevenhagen and Capt, Walters
brought in Jung (r. rear), captured in
1d Shaw (seated), ram to.

robbed 2 Texas rancher 3 months before

iff of adjoining Wilson Counts, on a
seharge of murdering Jesus Quintero,
He supplied the information and led
the posse that tracked a notorious cow-
boy bandit to his hideout in Gladewa-
ter. He arrested John W. Vaughn, the
killer of San Antonio Policeman A. A.
awards, and he was the man who
‘brought in Selanes Canedo, the killer
of John Daly. Both men received death
sentences. .

He broke the puzzling “train mur-

murdered a bus driver, to Huntsville,
‘where they were executed, after 2
trial,

Tn August of 1937, Klevenhagen took
the trall of the notorious bandit-killer

od of weeks that netted him over
$90,000.
‘Deputy Klevenhagen trailed him to

Houston, where 2 member of Rea’s
gang “put him on the spot” Told Rea
yas holed up in @ gambler's house on
the outskirts of town, Ki en
cnlisted the aid of Houston officers and

‘The friendship born that night of Au-
gust 15, 1937, was to last 21 years, and
‘cost the Tex2s underworld dearly.

‘The first payment wes made that
night. Lieutenant Cecil Priest
‘shouted for Rea to surrender. When the
outlaw didn't answer, Priest ordered
two tear-ges grenades fired through
the windows of the house. From in-
side, came the muffled sound of 2 shot,
followed almost at once by the open-
ing of the door and the surrender of
‘two members of the gang. But Rea was
still inside.

Kern and Klevenhagen donned gas
masks and led the charge into the
house. On the bed of an upstairs bed-
room, they found Rea. He had shot
bimself to death with a sawed-off shot-

gun. :
“Well, that saves the state some
money,” Klevenhagen said laconically,
‘and went back to San Antonio.
Tt’ was during this period thet

‘Every so often, he went to Austin
‘and put in another application for the
Rangers. On one occasion, the young
‘deputy met grizzled Bob Coffee, the
‘ “old man” of the Rangers, asa
man “who ean make it all day on noth~
q ing more than a cup of coffee and a
cigarette for breakfast.”

“Pye heard a lot about you, sir,” said
the young deputy respectfully.

“We've heard some about you, to0,
E son,” replied the tough old Ranger,

| the “Bluebeard of Elmendors.”

‘Elmendorf is a small ‘community in
Bexar County. Joe Ball was the town
bull
ger, tavern-keeper,
faneier with an eye for the dolls. He
Kept several huge alligators in a tank
at the rear of his tavern “to draw
trade.”

‘Johnny Klevenhagen suspected the
tavern-keeper of being a cow-thief
who. “moonlighted” beef, butchered it
fon the spot, and sold the meat to un=
serupulous storekeepers. But he never
had been able to obtain any evidence
against Ball.

‘One day an informant disclosed that
Ball had been seen carrying a barrel

A into the shed behind a relative’s home.

‘The man said there was a strong odor

might soon be out of business.

‘When they arrived there, however,
the relative said Ball had removed the
barrel when she complained of the
odor.

‘Klevenhagen and Gray decided to
tke Ball in and hold him until they
could trace the barrel. They returned.

Sepegt lege

——

jamb while Ball walked to the register,
opened it and began counting
money.

‘Ball reached for a small metal cash
‘box beneath the counter, set it beside
the cash rogister, and opened it with
a key. Suddenly he whirled, and the
Startled deputy saw the glint of 2
heavy 45 automatic in the bartender's
band.

‘As Klevenhagen told it: “As he
raised it, I went for my pistol. But i
Stead of shooting me, he shot himself.” 7
‘That was @ matter of opinion. Dep-
uty Gray, who had stepped up behind
‘the lightning-

‘At Jene Paul Norris” final meeting with the Rangers, Lady Luck ki
Bit 16 times in a violent exchange of gunfire, he fell om the hank of a stream

Fernandez (1.), who murdéred a bus driver, and cop-killer Polanco (r.) grinned
when Klevenhagen bronght them in. They quit smiling when the switch was thrown

tered beneath his chin and ranged up
into his brain. Klevenhagen’s bullet
struck Bell in the throat, and passed
through the back of his neck.

‘Had Ball actually shot himself? Or
had Klevenhagen’s bullet, hitting him,
caused his hand to jerk’ up, and hie
pistol, discharging, ‘sent the bullet
meant for Kleventiagen into his own
head?

‘A coroner puzzled the question,
evaluated the evidence, and arrived at

verdict. “Suicide,” he ruled. “Either

xy?
From that day, John Klevenhagen
fas marked as a fast gun.

Ball's death did not end the probe

a cow. It contained part of ¢ butchered
corpse—that of a woman. A terrified
employe led the officers to the bank
of the San Antonio River and showed
them where Ball had made him burn
the woman's head. Then he took thera
to an isolated beach near Ingleside,
where the officers unearthed, parts of
the body of another woman.

‘The vietims were identified as Hazel
Brown and Minnie Gotthard, women
Ball had employed as waitresses. This
naturally brought up the question of
what had happened to other waitresses
who had worked briefly for the “Blue-
beard of Texas.” An examination of
the giant allizators kent by Ball par-
tially answered the question. A pathol-
ogist said the saurians had been fed
‘on human flesh!

“Never did know whether more than
two girls had been fed to those damn

“But we

‘it Klevenhagen expected the Rang-
ers to summon him immediately, he
‘was disappointed. They didn't. But that
he was their kind of man, he demon-

Woods, Klevenhagen got into an alter-
cation ‘with a rival candidate's “ward
heeler,” and his temper got the best of
him. He knocked the man down.

“That wasn't called for, Johnny,”
protested the political worker, over-
looking the fact that he'd used some
dubious language to describe Kleven—
hagen’s ancestors.

“You're sure as hell right,” growled
the deputy, and wheeling sround, he
stalked into the nearby office of a jus-
tice of the peace and filed 2 complaint
of simple assault against himself. He
then pleaded guilty and paid a §5 fine.

It wasn't to be the last fine he'd shell
out for throwing temper-triggered
punches.

Shortly afterwards, Bexar District
Attomey Join R. Shook hired Kleven-

‘thi
taking the job, but it helped. Johnny

hhad been a family man since 1935, the.

foot and sporting a deputy’s badge on
bis diaper. Johnny frankly admitted he
was raising the boy fo be a “pistol-
toter

‘Klevenhagen had been 2 D-A’s man

of Public Safety and chief of the Texas
Rangers
“How do you like your new job,
John?” asked Garrison.
“TL like it Gne,” replied Klevenhagen,
“But it’s hardly, a new job. I've been
some time.

here some
“Wasn't talking about that job,” said
Garrison dryly. “I meant your new job
Ranger.

and grabbed his hat. “Pm c
He grinned. “I've just been appointed
to the Rangers.” He grabbed Shook's
hhand, pumped it hurriedly and all but

‘Trooper Eddie Campbell.
Campbell also inspected Kieven-
agen. grevely. “Depends on whether
you aim to work him or show him,”
‘commented Campbell, poker-faced.

‘Purvis aimed to work him, Kleven-
hhagen learned in short order. He had
taken a drastic cut in pay when he
pinned on a Ranger badge (privates
then drew $245 a month), and he soon
found he had to reshape his working
habits.

‘Then, as now, the Rangers were
trouble’ shooters.’‘Their primary pur-
pose is to 20 im and do a job local off
cers can't or won't do. They like to be
invited, and generally are, but a Rang-
er may step into any situation involv-

ing a major violation of Texas state
laws, There fs never a lack of “invita-
tions,” for most rural law

agencies in Texas lack the facilities to

them are “one-man police depart-
ments.”

"A light week for a Ranger is 60
hours, the average week 75 hours.
Klevenbagen, like every other Ranger,
found himself covering an area larger

Klevenhagen figured rightly there'd al-
ways be @ good horse within shouting
Aistance that he could borrow or com=
mandeer.

Bat lke all good cowboys, he had a

ing casts of tires, tool
masks, and other devices to gather and
evidence.

‘special type of gun prescribed for the
fore. Some Rangers wear business
suits, but because they are often in the

are only

the foree, although any man may pacle

two pistols if he desires, and most of
‘them have at one time or another,

‘when on a partisulacly hazardous mis?

sion, tucked an extra pistol in their

belts.

lovenhagen's gar rarely varied in
his years in the
brown single-breasted suit, tan Stetson,
‘tooled boots, white or tan shirt and tie.
He carried 'a .45 automatic rammed
into the waistband of his trousers on

After 30 harrowing minutes in the air,
Ranger Klevenhagen was given his wings

the left side, butt forward. The weapon,
was carried cocked, ready to fire.

It js ascertained’ before they're se-
lected that Rangers are crack shots.
‘After pinning on the coveted badge, a
Ranger doesn’t reach for his gun un-
Jess he intends to use it. Just how fast
they can “sbuck” @ gun, an adversary
must find out for imself—end that
‘can be painful or fatal

‘Rangers ain't much on fast, but
‘they're hell on sure,” a border rancher
‘once commented, ‘There are men in
‘Texas prisons who will swear that's @
rank understatement

‘One of the principal duties of a
Ranger is to assist in the apprehension
! ‘of escaped felons from the various
Texas prison farms. Klevenhagen

hadn't been a Ranger two months

q when he had the first of many brushes
i with an escaped convict.

He bad been up in northeast Texas

. with State Trooper Eddie Campbell,

y who often worked with Rangers on
4 criminal investigations. He was return
i" ing to Houston when he and Campbell,

received word via their radio that a
notorious outlaw of the 30s, had e:-
caped from Eastham. He had stolen a
car in Lovelady, and was reported
hheaded for Normangee on a back road.
He had run a blockade at Riverside.
“Hell, we can intercept him," ex-
claimed Klevenhagen, and tromped the
E accelerator of the souped-up Ford he

River Bridge, Trooper Campbell
spotted the outlaw's car roaring toward
the bridge from the left. “Don’t try.
block him, Johnny,” he shouted. “He'll
kill us all if he hits us!™
Klevenhagen had already blocked
the highway with his ear. But he real-

sped after
the fleeing convict. The old-model
Chevrolet was easily overtaken, but
‘the outlaw refused to stop and the
road was too narrow to risk curbing
bim. Trooper Campbell leaned out the
window and started shoot

Klevenhagen unlimbered his 45 with
‘his left hand, stuck it out the window
and started shooting, too.

All of a sudden the Chevrolet burst
into flames. It veered, wobbled, stopped.
‘The outlaw leaped out, hands holding

check of his posterior, red and blis-
tered.

The convict looked at his burning
car, wide-eyed. “What the hell were
you shooting at me, anyway?” he
growled.

Klevenhagen grinned. “Tracers,” he
said. “They work, don't they?”

Experienced pilots were needed at
the time, and taking the Ranger at his
word that he could fly, Randolph Field
officials checked him out in the eock-
pit of e P-40, and let him take the sleek
fighter upstairs. After a harrowing 30
minutes—for both Air Fore officials
and the Ranger—he got the fighter
back on the ground.

“Which side do you intend to: fgbt

toake up his mind which ofthe ground
forces to join, he was “frozen” in his
Job as a peace officer.

If he couldn't take a crack at the
Germans and Japs, the Ranger wasn’t
te lack for action during the war. And
when you're under fre, it doesn't make
much difference whether the bullets
fired at you come from the gun of an
‘enemy soldier or one held by an enemy
‘within your own society.

With the young men away in the
armed forces, guard duty in the state's
prisons were performed mostly by old~
Sters, wha found i difientt to hold the
restless, surly prisoners in their charge.
Klevenhagen was often pulled of bur-
glaries, murders, black market cases,
and other major crimes to chase down
escaped cons.

‘On one occasion, he and Ranger Ed-
die Oliver tracked down a pair of es
caped Iong-termers from Ramsey. The
fugitives had made their way to Hous-
ton, obtained money and clothing, and
bad armed themselves.

‘Acting on information, Klevenhagen
and Oliver took one of the men ina
shoddy rooming house, and learned
from this man that bis partner was to
meet bim on a certain street corner at
6:30 pan.

The escaped con was indeed on the
‘street comer, waiting, at the appointed
time. The Rangers stopped their un-
matked car half a block away, and be
gan strolling toward the escapee, one
‘officer on each side of the street.

‘Two things happened simultane-
ously. A bus pulled up behind the
convict and disgorged a horde of pas-
sengers. And the convict spotted the
officers and guessed they were Rang-

He pulled a revolver, took aim at

Deputy John Joseph Klevenhagen Jn,
22, (below) takes pride in following the
footsteps of his famous father (above)

Arsenic
and Old Love
(Continued from page 23)

which retumed the indictment exactly
ays

two years and two days after the date
of Walter Merril's death, could have
‘ fot first-degree

‘was in excellent health and spirits when
Etatked with im a few weeks before he

Bie amid seventh
Sencusly Mla day in his

Referring to civil suit which he hag
instituted in an attempt to

use of the
poison that was slowly accumulating in
Fis syste, Walter made outa will nam-
ing Mrs. Norris. is as

{RE Sole Genctctary of hs extate"When
she later appeared in court to have the
‘will probated, Mrs. Norris swore that

ving relatives Photographs of Waiters
promers and their
Rome: Until a few weeks before. his

death, he had been in constant com-
munigation with them

‘Only a short time after the former
shipbuilder moved from Orlando to St.
‘Augustine and bought an oceanfront
home on Anastacia Island, Mes, Nomis

‘see him almost daily, calling at
‘Sanchez Street apartment to which he
bad moved.

. 5 MeEldowney, a chemist for the

‘an, Prosecutor

Broundwork for McEldowney’s testi;

Rony by delving into lte's’ personal
Bistory.

‘The defendant's frst husband, Carl
Rickard, a miner, had died in 1931 fol-
‘3 sudden ‘ilne

ve pesond marrage, tp Bart D. Wore
an Orlando engineer, lasted for eight
Yekss. in 188%, Norris died suadenty in
Bartow, Florida. After Effie’s arrest for
the muider of Merri, investigators for
the Florida ‘Sheriff's "Bureau had ob-

Pace, for whom.
acted as housekeeper foliowing the death

‘of her second husband, was ox
humed, for, examination by the sate
fe also found traces of arsenie
in tls body.” Metidowney
te testimony

testine
‘But the ‘was cut short before
‘Warren could get an answer

{o lis question az to the cause of aeath
In the eases of both Norris and Pace.
Defense Attorney Howatt protested
strongly that his client was not om trial
for the murder of either her second hus.
band or the man for whom she once kept

ther witnesses were called to de-

been sul

Fidney trouble," ne had exhibited every

Inlet of being in perfect health un~
{il shortly after his neviy-hired house-

stand in No witnesses
bad’ been subpotnaed to appear in her
eb:

But after Prosecutor Warren abruptly
concluded his case with the evidence
that two other men in the defendant's
fe had died after ingesting arsenic, the
defense made the startling announce-
nent that it had nelther evidence ‘Dor
testimony to offer.

Defense Attorney Howat had plenty

TROUBLE ENOUGH

Sen Antoni, Teoh © young men woe
‘courh, chorged with punching &
in the nous. war brital, unprovoked
honor" the
cccond youth wiplised. "ot thee days ond
three nights he bos been playing his guitar ond
singing loudly »

“The, jodge nodded understondingly. "Case
ismissach” he said.

—Dwight Evans

to say, howecer, as he attempted to con

‘all-male jury that the State

fica ‘in its atienbt to prove Elbe
‘Norzis administered deadly poison to the
deceased.

“The prosecution's whole case is based
cn nothing but tneory” Atiomey: “Howalt
red. “You are being asked to conviet

jan on suspicion and

an emocent
sing the testis of the wit—

‘Pakung ‘up the testimony °
esses tho had been called 9 the stand
Bh "othe mectng of she early

‘ance. a

session of posses, In
Bier seen bie Noreis give Walter Mer -
ifapting fo eat or

for Warren, in his final a
ment fo the jury, contended that the

ter Cleveland Merrill died

That poison over 8 period of four months,
ver vitin made wil iceing Bor -
ee possessed in this wor

‘Phe prosecutor demanded a vereict of
Hy of murder in the frst degree, But
fe retrained trom asking for the death

pele scuence so
Romie gurlty as chan
‘Seven hows ‘after the 12 men who

‘Kier warning the spectators that no
demonstration would be tolersted, Judze
Melisa Biuired, SCentiemen, have you

uived ata werdiet
‘Yinen the foreman stepped forward
Spor to, Court

four days the woman on
an indication of her emotions. Leaning
toward the attorney at her side, she
whispered a few words and her lewyer
Tose and went toward the bench.

fest { husband rushed forward t0 corn

"age Moon cud at re
gales mentary
gales mentary
Petes ee

Saar

‘A moment later, Mrs. Effie N
“outivoom batk to the Jal

months since
Louise Conk the deputy sheriff who ac-
‘companied her, that she probably would
Be Femoved 2 the Women's Prison, at
Raiford before the month was out, the
Drisoner blinked her myopic brown eyes
Bnd stifled a sob. But she spoke no word.

a
naman

68

Top Gun of the
Texas Rangers

(Continued from page 60)

Jnspector and the Ranger, also, was @

some, laughing, dark-faced Cotes
Sve 7D. Walters, who was as deadly
as he was amiable,

accumu
16 fecord of arrests aul
spuvietions, “smnashing Uiack ‘market
ing bandits and burglars,
Pople ‘and Liters brearna ETE
bling rings and narcotics “rings “that
preyed on servicemen,
shoot-out with armed ban
dite, Walters saved sreventoes Sa
death or wounding with a snap shot that
mised ut flustered the. gunman and
caused him to miss the Ranger.
renhagen presented. Walters’ with
Desutiful, chrome-plated J2-gauge shot

Br ear pe i tte 1
SeSST aba 2
ae

sete SR be
pee or Be
ae ings ee Set

plained

Giacona was, a notorious Setcracker
and ‘thug, a three weit
er pene Sack to 1971. Be

ven times since his

$09 pos cons res mess wine again
derstand? If you ever walk up of) me
gain, come e-ahooting

panion in a dark alley that
Sfarge department store and a” hard

The officers circled the
Broce, atthe ines had’ ot oS
on the pines: street. ae
“Turn off the lights, and let's putt

Jn tront of the department store? ere
Suggested, The officers sai quietly
froat of ihe store. ‘They “hea!d «faint
igurering from inside

ing the site” Kem

ienoek
whispered, on tee ates Site” em

te, ar
“Take the back door,

“Hie called the tune, so don't
sbaut JU" said Rievenbagen, patie,

7, called to the scene, added
tne fad note fase sees, aged
Giacona and his young pal tad paid so
dearly to open and loot contained but

Each Ranger is required to, make a
weekly written report to

Miles he had” traveled, and Mame ae
laces visited.

irst four years in the Rangers,
ried

anes eae Re er ie ah fa
found he ety drain ibe leading to Gn genoa Sas hed tages
eee aan see eo

Stoding seen. ban seb
rirglaries, three ‘kidnapings 108,
aed robberies and a mo

Stipping ‘across the fop'o¢ the, Shae
hhe came to the skylight and saw i
been broken out.

‘is pistol in one hand, the Ranger
Jeaned over the aperture and turned on

gen shouted, but

the two men faded hese Sight down an

aisle of the store. “The back. J, D.!"

Klevenhagen roared, alerting the detec- “There were also times when ileven-
hagen did not feet it necessat

2

‘The inside door suddenly opened
tnd Claconn begee ateny, 2 the
wire ‘screen, Walters recogn

but hed been arrested : bors
‘Walters stepped forward, his new shot head. Her’ husbond ‘elated’ she” bed
gun leveled. “Drop what you've gow” committed suicide, and produced tae
fe snap, Hotes, allegediy witten Uy her severat
1 Ciasene, cored a Seo ae a

gor and to he ae fading fon le, inthe comma
‘The young junkie snarled and lunged rer used

at the door, is band sweeping upware.

oe wurden. The Ban
‘The detective fred from the hip. The mans

accompanied a deputy to the man's
house and arrested

‘Do you praise police tor « good job,
or seize on ang exeuse to complain
about ther

Stop off at his house and pick up some

‘TwceDemcre personal papers.

youth was hurled backwards, and Wal-

ters. smash ‘the screen

and leaped into nto the store, “his eyes
Sweeping the ai

leveribagen, had heard the shot,
leaning over the skylight. Now, in the
beam of his light, Giacona, bis face dis-
forted in fury, suddenly appeared. He

held'a metal abject in his tight hand,
ft and surrender!” shouted the

‘deputy and. the

‘There was a shout, a commotion, and
the Rangers ran around the house
time to see the deputy fire at the fleeing
farmer, who was nearing a dense thick
et of brush which would have offered

‘The farmer fell, wounded only slight-

“He grabbed 2 knife and slashed at
me, then bolted,” the deputy explained.
‘The farmer was taken to a hospital,
bere, 1 the amazement of doctors, he

scream threw his hand
upwards: Klevenagen dodged back apd
a sudden thunder of shots echoed in the

store. Cautiously, the Ranger leaned for- died of the mi
‘ward and played his light downward. SQctually, "ne just willed himself to
Giacona lay on his back, his head on die,” said "one doctor. “That wound
Of 2 tier of shoe shelves, wain' bad enough to ceuse death in ay
1d on his,
was dead trom the ful! Blast of ashot=
gun, charge in the left side.

“The Ranger dropped through
ea ught nest Walters, who was cabaly

replied

“Haven't been asked again,”
scious. ‘The buckshot had all but torn Campbell.

off his right leg. Doctors later amputated It" Wasn't long before he received
ihe limb. ‘Near his right hand was s second invitation

‘Anion, late in 1945, a woman
Wes Taped, robbed and beaten to death
by a brute named Rufe Lucas, a truck

driver from Galveston. A stateside hunt

hea
"Walters looked at the jimmy bar ang

it be bad a gun,”

Revssids a note of regret in bis Slee.

Saget

r
t

say nn
mate
eoumewareen ends
Se aere eee oe
Shite neers
meee ae re

sroadws
and the ler exchanging erratic patol
lire. As other patrol ears—Klevenhagen's

smong them™cloced in on the Willer
alerted by radio, Lucas ‘Sfandoned his

He took to his heels in a rundown see~
{ion of the city, near the apen bay, and

to elude his

‘Bieweonagen picked. up the weapon
and tucked fim his belt “Come onvoct
Stdered Sse Range.

it
Lucas’ hand, brushing at dirt
shirt, suddenly dipped inside the 2:

leas squeezed
» Sha Gamopbeit's and! dasha Go as oot

‘ment and came out with a 44 Colt. Only
Carapbell, who had holstered his weap-

Campbell
off his shot,

of prison guards chased im,
wad Peleg, ats gd Ne,

Hetprnts
‘Captain Mei boy put hs horse to
corsage Teaming that
Teachod the. oppo
Shore safely. The guard capisin picked
tip the convicts tacks ond began for"
Taine.
Kleveahagen, hearing of the escape,
had sped to the seene fom the wrest se

“were those whose warped his weary horse

rae made ‘dhem face Klevenhagen. atpactury headed for lonely
‘I had ira shots at him,” recalls one farmhouse on the edge of
reformed gunman. “then tuew dows tin

may gun. What the hes the use of shoot
ing at a man you can’t hit?”
‘Said another. now serving time: “He

out
faw' broke in, knocked her down and

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“asoroned or

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i
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i
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rpm

case Klevenhagen wrapped up in gun-

took her, absent husband's 30-30 Win-

ghost “He lok off down the branch: Sie “he clened” hand tous
‘woman said, pointing gut « smell perseverance, sy and his own brand ot
stream that flowed into the ti shrewd sleuthing .

ing.
Raymond Shaw and Arthur Tung, two

20-year-old adventurers out of Chicago,
{he woman orders to call the sherit’ nd for insance, wil ponder “or the restot
their lives as to how Klevenhagen and

‘Kern caught up with them. Shaw and
1e week end, decided

il was too fer behind Kleven
bagen to take part in what followed, but

be saw all. Brows to fob a local rancher, Warren Rhodes,

behind a tree as the Ranger picking out 61, of neatay Hock

Brown's trail along the bank ‘They quit their jobs and went to

of the little Hivulet. McGill started to Houston, and on the night of April 15,
I but ‘they went to Hockley, where

inct warned Klevenhagen. 1950,
fs tolen.

z 3wn home was occupied by
“Don't be foolish, boy!" the Ranger relatives.
shouted, dropping into a crouch and The boys bludgeoned Rhodes to death.
whipping up his own rifle, getting $45, and fled, leaving
Brown shot, and slapped the lever on

behing 3
Blondsiained “shovel handie® they “had
the sale gut, He never got fo seat his used as a weapon. They left co elue at

allo their identities, and since they had
Rlevenhagen hot him between the eyez been unkuowarin tbe Hockley arch fot
rs your, prisoner, Joe,” “sald ve west to New
Klcteaboget as. ‘up. "He
resent tonight at head count,
ut bes damned sum accounted for
‘The Ranger started to walk of
‘Johnny! il shouted. “I
cant take fe back actoss the piver on
that horse. You got to drive
"Reluctantly, Klevenbagen aided _in
propping the dead conviet in the back

secure as. they”
Mexico.

ed their way through A.

Eago. Jang. stayed. onky a
thes went on to Tadionapolis. Shaw soon
founda job as a painter, and was. @
food worker, earning @ good salary. His

One day in June, he was painting the
wall of a basement in a downtown build-

ees down
ferent shoe styles on
‘the feet of the pasting pedestrians

‘Suddenly, his heart constricted. He
was looking at a pair boots

cen In this part of the country.
‘who had stopped outside the window

of the boots moved on, i
But Shaw's heart didn't stop pound- , /
ing. And he wasn't surprised when be
heard. steps on nt stairs and
furmed to see a man step into the room.

rae man was dressed Ina well-wors

3 ound’ Choe aise ome
Sarna |
Bren hada ‘gaunt, Wravel woes

Shout a Hl

weary cs Raymond Shaw?” the man

om ees ee

(ternoon, in Indianapolis,
gp aually implacable’ lawman, ‘Sherif
C.V. Kern, arrested

Lopengd some'mall Vahsuigat have |

jevenagea labors

‘further. aan
Noone actually kno 1

yws—not_even
Kern himsel

BB, and, the “number ot Jeliers they

it in, can be pretty wel

Ben nen ee Wie |
i

oF grocer Marvin
Clark, tor instance, (Sand sais in Apa
1949, with a weird rubberized a 2
latched in Ms deal

emake ad several hsirs inside, ob-

eal fanger was most ded
leated in “wacking down. the

a masterpiec
duction, surmise and actual sacking
here dogs had failed. Eiisor died in the

onOn July 7, 1956, Somervine Constable ?
Milton Lewis stoppe i

fhe man Bel ne
ger Kievenhagen arrived shortly

to head the massive search for the gun

man, who had fled into’ the thickly=

brushed

jua Creek bottoms. For three
og low-fving planet manned by

Gn foot sought the gunman in te
Srakes and hily thicnets “At tones the
posse numbered over 150 men.

agen received word on July
Jott, while searching on one side of the
creekc, that the

tually a high Bil
Prore is he? asked the Range.
gestured. “Down there,
but nes brushed up, and heavily armed:
Man that goes in atter Halson will get
his head shot off”

of brush, ‘choked with heavy
whieh gave Halson

and. set the co ‘on hig
“Ranger. talking, boy—come
out with your hands up and you won't

‘purt,” Klevenhagen shouted.
"There was no answer for 2 moment,
‘Then a tall

Be 'uhile ‘cleveshagen fought the
horse. Fioally the animal quieted. and
fhe “Ranger's shotgun "boomed
Halson, who ‘opping back
ver ike log, fell dead beside the loaded
and fully-loaded rifle he had

‘Kleven!
oltee” ‘That was the fuN report
It was only natural that’ when Cap-
tain "Purvis retired. a month. Tater,

chill blue eyes, & permanent smite and
{ready tigger nger—the letter two

distinctive qualities ‘camming Norris his
“iguet in ‘Texas as “Oklahoma's Smil-
ing Bad Boy.

‘nis time wilt determine Norris’ niche
mae Sruthwest bedines
Bat not sine the days of Raymond Ham”
Horend Cae Barrow ree
of hs ik plagued Teves ma,
25 tht P etainmad police dossiers on

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RUPTURED

BE FREE FROM TRUSS SLAVERY

ae

‘Treating Rupture
y. Write today—
Dept. 4535,

Excelsior Metical Clinic, Excelsior Springs, ae.

a

for upwards of 40 slayings.

voyeE unl he hatched & fantastic plot
that shook even the most shock-proof of
his adversaries, he was the most anon~
ymous criminal In the annals of South~
western crime—as far as the general
public was con

i
Yo-gauge to the highest bidder emong
‘Texas gangland chieftains, while om the

Side he preyed on gamblers, bootlege
and other ilieit operators, oa the theory
Biathone of Bese viens Would squawi
Fev of his victims made oficial com=
plaints. Even fewer appeared in court
Egainst him. Several simply disappeared
2nd only oe was ever found. ‘That is,
the bones of James Black were found,
but the bones couldn't testify. Ot
bones have since been found, but that’s
now a moot point.

Rangers knew—but couldn't substan-

jt in court—that Jene Paul master

Leroy “Tiney” Eggleston for money;
be rexas gambler and

‘Among the things he had in mind, i
‘was said slong the grapevine, was “tak-
care” of a certain Rani

ts. Their meeting —as de-
ing of this story—
t, and when

oF the other.

Several weeks later, gambler Johnny
Brannan and his wife, an invalid, were
brutally. Bludgeoned to death in their
Rome. Of the officers who investigated,

Slevenbazen was not the only one who
called that Brannan once had been the

cessfully tried to catch @ green Chevrolet
Speeding in the Brannan neighborhood.
and that the occupants had tossed out
something during the chase. Several
days later, two boys found two guns in

eho admitied he bad been sobbed of

‘by Jene Paul. ‘The other

£2 belonged to {ne slain gambler whose
wife Norris marri

To cap ital, ‘thes ‘Ranger learned that

William Carl Humphrey—Nornis’, run~

been,

* aleg mote of receut weeks had

arrested in Temple a few days after the
‘Charge, and. that

whieh, ny,
TIubky piece" Ir had been stripped from

his Anger after his murder.
‘Captain Klevenhagen stuck 2 pair of
murder warrants in his hip pocket—
mand

bility went, might have been cut from

the same pattern as Klevenhai
Spm looking for Jene Paul
said Kievenhagen.
“T figured you were,”

Norris,”
Captain Banks
out.”

ing batched by Nor~
H—the yobbeg) of the Carswell Sir

Trach of the Port. Wart
National Sonic ‘The @ pulled
ee sy ould ‘set $800,000. And had not

officers been tipped to the plan, Norris
might very well have succ
‘He had hatched 2 foolproof pian, the

key to which wos 2 female employe who
possessed both a key to the bank and a
Per with a wiodsbield sticker allowing
hher to pass freely onto and off the base.
Norris intended to Kidnap the woman
and her ehild—hit the bank disguised

“We're changing’ éur names to protect the innocent.”

a5 a. woman—and escape with the wom
4m and her daughter as hostages. He in~
tended to

‘woman’
filed in and ic ‘with us all the way.
Humphrey and Norris are ypaking 2 dry

run tomorrow, according to our inside

emolaye's home, and two miles from the

Sacksboro Highivay.
Ranger Ernest Daniel and Sheriff's
chert

rev are out of it, nowy" sald ap SBE
agent.
‘Then Hill's voice shattered the radio
receiver in Captain Banks’ car: “They've
‘They're cutting out!”

cr ‘Banks, floor-
boarding bis own secelerator,
‘The Ranger care moved in on Jene

Humphrey’ deivingwas it skidded. of
‘Meander ‘onto the Jacksboro
igh ied “across in

the window, bis teeth in
site, nd Spened up with a -i2-gaage

shotgun.
Elevenbegen poked his 45 out the
window and commenced firing. Wright
and Hightower, t00, lea
joose with their pistols—and a wild,
fry, Funning gunbatile was on:

je two cart roared down the igh:

Guelists rocketed down the highway
‘The chase went on, through the small
‘then through La Junta,

jons, concentrated fire on
Guptsin ‘pani’ tar as ft skidded to's
site The five ofces leaped out, guns
‘miraculously,

Wp Nomis” thouted Banks

‘who, like Ranger Klevenhagen, bad ex-
Eautted his "pistol “ammo and bed
Hiehed to a shotgun.
anor smiled and, fired at, Kleven-
hages. Humphrey, shaking but game,
Bred wsaly ath pistol af the gumen
backed up and into the creek, Humphrey

eam snd Jehe Paul 7e-
‘Regt steatgne ser

Humphrey way staggered by a slug.
then anothes and anotier: Stil, he stan
ered oy bules Teccing 0 sy

sere of water about bim. He reached
E'Small island, before he was cut down, |
falling dead with "$3 bullet holes pump:

‘blood.

levenhagen had never stopped wall-
Norris. He

edged be Tea
far bank. Banks, Wright, Hightower and
i
Pies Pod loge slashed dashes in Bis
geaip. The’ shotgun dropped, from, Bs
hands, ani jgged pistol from
Belt ahd ‘savagely fought back, ‘Then =

smashed into his head.
‘nd another bullet pierced his skull. Hit
AG"uimes, he sank to the bank of
stre:

“enn ted he
johnny Kleveahagen never pulled th

fur to
the doctor's edict to. stay in bed and
away from erime-busting. He died with
his boots off on November 26, 1958, and,
Ranger Chief Homer Gar-
rector of the Department of

bag suffered an irreparable
“haa lcrwold ‘breained =" sigh. of

relief.

But a'sbudder of fear wept the state's

ran down the slope and yanked the driv-
er trom the ‘cat. If “ahother presence

So°he alba aadeatted the outlaw,
Tagiive wanted by the PBL, it under
standable.

“The kid deputy was John Joseph
Kievenhagen Jr., age 22, an announced
candidate for the Texas Rangers. #4@

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Clean record is denied
for Randall Dale Adams

By Anne Belli
‘Staff Writer of The Dallas Morning News

A judge on Thursday denied
Randall Dale Adams’ request to
erase all records of his 1977 capi-
tal murder conviction, which
was overturned on appeal in

. March.

State District Judge Larry
Baraka said he denied the
“motion for expunction” because
Mr. Adams’ attorneys did not
- prove that he was wrongfully in-
dicted — a requirement for
granting a request to have
records expunged.

Judge Baraka said attorney

George Preston would have had

to prove that “the basis of the in- | -

dictment was false.” .

“And they didn’t prove that
up,” Judge Baraka said, “We don’t
know if he did or didn’t do it.”

A Dallas County jury con-
victed Mr. Adams of fatally shoot-
ing Dallas police Officer Robert
Wood, 27, in 1976 after he stopped

a car on North. Hampton Road. }..

The jury sentenced Mr. Adams to
death, but the sentence later was
commuted to life. He spent 12
years in prison. P

Mr. Adams has maintained

Clean. record denied

for Randall Adams.

Continued from Page 27A.

oe . that
he is innocent and has said that the
real killer was David Ray Harris,
the man who pointed the finger at
Mr. Adams.

:4In a hearing before Judge
Baraka last November, Mr. Harris
withdrew his accusation and pro-
vided so many details about the
crime that the judge declared his
testimony a virtual confession.

In March, the Texas Court of
Criminal Appeals ordered a new
trial for Mr. Adams after reviewing
information obtained primarily
through Errol Morris, who investi-
gated the case for his movie The
Thin Blue Line.

The appeals court ruled that pro-
secutors supressed evidence favor-
able to Mr. Adams and allowed per-
jured testimony against him.
Shortly after the ruling, Dallas
County District Attorney John
Vance dismissed the capital murder
chargé, saying that his office lacked
sufficient evidence to prosecute Mr.
Adams in a new trial.

DALLAS Meaning NEWs FR

Judge Baraka’s denial of the ex-
punction motion Thursday means
that Mr. Adams’ arrest, indictment,
conviction and case dismissal will
remain a matter of public record.

Law enforcement agencies na-
tionwide, among others, will have
access to the records. Mr. Preston
said that is unfair to Mr. Adams be-
cause the weight of evidence in the
case shows he is not guilty of shoot-
ing Officer Wood.

“Right now, if he were even

stopped on a traffic violation, hisar- °

rest, charge and conviction of capi-
tal murder would be accessible by
the officer,” Mr. Preston said.

Mr. Preston said he did not intro-
duce evidence during Thursday’s
hearing because “the evidence in
this case had already been intro-
duced in a weeklong habeas corpus
hearing” in Judge Baraka’s court
last November.

“The court is entitled to take jud-
icial notice of its court records and
the judge is entitled to take note of
what he has heard,” Mr. Preston
said.

Please see CLEAN on Page 29A. \ .

“ine

Randall Dale Adams... was
convicted of capital murder
in 1977 in the slaying of a
Dallas police officer.

“I didn’t want to eat up three |
days proving the indictment was :
founded on a mistake.” a |

He said that he likely will file a ‘
motion for a new trial asking Judge
Baraka to reconsider. , ot

. ocr. G, 1989
Saturday, October 7, 1989

(© 1909, The Dellss Morning News

Ghe Dallas Morning News

Adams seeking:prison-related job

By Anne Belli
‘Staff Writer of The Dellss Morning News

Randall Dale Adams, freed six
months ago after spending 12 years
in prison before his conviction was
overturned, says he’s ready to go to
work using his expertise as a for-
mer death row inmate.

Although he hopes to continue
making periodic public appear-
ances, Mr. Adams said Friday that
he is in the process of negotiating
employment with the Ohio Public
Defender’s Office.

Possible jobs include investigat-

ing death penalty cases, counseling ,

_death row inmates and their fami-

He intends to use death row expertise

lies and conducting seminars on
behalf of the public defender.

In a telephone interview from
his Columbus home, Mr. -Adams
also said he would like to educate
the public on living conditions
within the state prison system, and
possibly become an advocate for
prison reforms, - -

“Pm not going to slander the
State, because I believe prise are
a necessary evil, so to spe:

; Adams said. “But I, would eh.
prefer to use the past few years of *

my incarceration to help in that
area.” eae
More than anyt Mr. Adams
said, “I want to help other families,
but hopefully I will never meet any
in the position my family was in.”
Mr. Adams was sentenced to

death in 1977 for the murder of |

Dallas police Officer Robert Wood.

The sentence’ later was commuted”

to life.

Mr. Adams insisted he was inno-
cent, and his attorney continued to
fight for his freedom.

Armed with information film
maker Errol Morris obtained in
making his “docudrama” The Thin

Blue Line, attorney Randy Shafer .

persuaded state District Judge
Larry Baraka tojrecommend that
the state appeals court order a new
trial in the case.

During a hearing in Judge
Baraka’s court, Mr. Adams’ chief
accuser, David Ray Harris, all but
admitted he was the one who killed
Officer Wood.

In March, the Texas. Court of

£
., Criminal Appeals set aside Mr.

Adams’ conviction, citing prosecu-
torial misconduct. Less than a
month later, Dallas County District
Attorney John Vance dismissed the
charges for lack of evidence.

Since he was released, Mr.
Adams has spent most of his time
on the national lecture circuit,
evolving from a rough-around-the-
edges former inmate to a savvy me-
dia personality with polished
speaking skills.

Undoubtedly, each time he re-
counts his story, he convinces
more people that he was falsely

Please see ADAMS on Page 36A.

aeeneteainemiaieaees

Adams seeks job using death row expertise

Continued from Page 33A.
accused and convicted.

Ohio Public Defender Randy
Dana is among those who have
heard Mr. Adams speak and who
feel strongly that he unjustly lost
the best years of his life.

Mr. Dana said he met Mr. Adams
last month at a death penalty con-
ference where Mr. Adams was the
keynote speaker. Mr. Dana was so
impressed by Mr. Adams’ life story
that he offered him a job.

“I told him I thought society
owed him something back and that I
would hire him in my office here,”
Mr. Dana said.

He said Mr. Adams could be hired
soon as a case investigator or as a
liaison between prisoners and pub-
lic defenders.

But Mr. Dana also said - is nego-
tiating with the state government to
gain clearance for Mr. Adams to

“I’m not going to slander the state, because I believe.
. prisons are a necessary evil; so to speak. But I would

much prefer to use the past few } ‘years of my
incarceration to helpi in that area.”

— Readail Dale Adboe

work within the prison system.

“The ideal place for him to work

would be with the Department of ' again.”

Corrections,” Mr. Dana said. “I
think’s he’s qualified, and he cer-
tainly is familiar with the criminal
justice system. , : . Yes, we're either
going to hire him or get him a job
doing what he wants to do in state
government.”

Mr. Dana said the paperwork on
Mr. Adams’ employment may be
complete in as little as a week. He
said he’s eager to offer Mr. Adams a

Mr. Dana criticized the Texas
prosecutors who handled Mr.
Adams’ case. And he had harsher
words for state officials for not of-
fering to compensate Mr. Adams
when they found that he had been
wrongfully convicted.

. “I think the guy spent 12 years in
prison for something he didn’t do,”
Mr. Dana said. 7

“Tt was your great state of Texas

‘Job because “somebody needs to do
something to help him get situated,

that wrongfully convicted him; hat
Ohio,” he said, “But Texas appar:
ently isn’t. going to do anything.
about it. So we feel like we owe'it to’

Mr. Adams said, he will, continue
_Inaking public appearances — = the:
next one of which may bein Ital
He said he. doesn’t hold <
grudges arid he » simply wants to:
main in Columbus, close to his fam-
ily, and continue to use his incer:
ceration to his benefit.,. : :
He said he wants to’ continue t
warn law students about the evils
the . win-atany-cost prosecution”
style that sent him to prison. And he.
said he would like to help others:

.who have been or may be wrong-

fully convicted.

“Pm very pleased with the way
my life is headed,” Mr. Adams said.
“Ym very pleased.

Legal |

crisis on

death row!

Out-of-state lawyers
step in to fill void

By William J. Choyke | -

lawyer Emmett Lewis was asked to rep-
resent a Texas death row inmate in post-
conviction hearings, he had no idea thé:
effort would entail nearly 2,700 hours of:
work. : S 7 :

“T guess I was a little naive,” said Mr.’
Lewis, reflecting on his nearly 18
months as an attorney for convicted
Harris County murderer Phillip Tomp- 4
kins. “I don’t think I had any conception {
of the amount of work that was in-
volved when Itookon thecase.”  ":

Mr. Lewis, whose client lost his ap- |
peal before the U.S. Supreme Court this
month, is among the lawyers from 30
out-of-state law firms responding to an
urgent call from a patchwork of advo-
cates seeking free legal services for
scores of indigent Texas killers appeal-
ing their convictions or sentences.

‘As the death row population grows
nationally by about 250 per year, the
mostly Northern lawyers have been de-
scending on Texas and the South to of-
fer legal assistance. one,

But the cases offer little material
payoff. And with Texas’ death row the
nation’s largest —
mates — and many Texas lawyers reluc-

y 8
costly cases, legal observers say the situ-
ation has reached a crisis stage. 9

“The American Bar Association, in
surveying disaster areas which needed

the most emphasis, Texas has always |
Please see LEGAL on Page 48A. }

48 A

‘The Ballas Morning Neus

Sunday, June 25, 1989

Legal crisis confronts
inmates on death row

Continued from Page 45A.
been at the top of our list as the areo
am most desperate need of volunteer

at
and 2 new system.” said
Tabak,

bar's drive a major setback Friday.
ruling in 2 $4 decision that states do
“not have to provide taxpayer-funded
counsel for death row inmates after
‘their initial appeals. The decision, in
a Virginia case, spares Texas and at
east nine other states among the 37
that have state

‘Besides Texas, the states of Ala-
‘ama. Georgia, Mississippi, North Ca-
rolins and Florida are targeted as
‘having the most acute need for attor-
neys to represent many of the 2300
inmates on death row nationally.

of them will still fall to the ABA, new

‘These habexs corpus cases —
‘appeals based on constitutional de-
fects in the process of justice — have
not proven trivial, Studies have
shown that on the federal level,

nearly half the cases have been re- legal

‘turned 10 lower courts for review.

(quires 1.850 hours, or roughly the
equivalent of 2 year's work for one

‘Much of the work is done free —

+ OF pro bono, Latin for “the pablic

‘good.” In other instances, reimburse
‘ment in public monies of around $7S
per hour is usually well below regu-
Jar billing rates.

“it’s @ tough assignment for the
Jaw is hard, most of the time the iaw-
Yyers represent a prisoner who has ac-
‘tually committed the offense he is

‘with, and the lawyer's role
is to ensure the system operates in
3} manner.” said

federally: in
“Texas and a dozen other states, and a
Ioase coalition of individual lawyers.
_mationwide.

‘it is like giving aid to 2 Third
iWorid country.” said David Lane, a
{Denver lawyer who has helped steer
seven Colorado

of these eapital cases. But as the pop-
‘ulation om Texas’ desth row ex-
ploded — it has nearly tripled in the
{ past seven years — the need for law-
yers has far outdistanced the supply.

‘There are now 15 Texas death row
‘inmates without legal represents
tion, said a spokesman for the Texas
! Resource Center.

{dles 18 death row cases at any one
‘time. “They won't accept the respon-
+ sibility of the bar.”

‘Chief Judge John Godbold of the At-
Ianta-besed 13th US. Circuit Court of
Appeals.

in Texas. the situstion has
slightly improved during the past 18,

‘months. Federal funds helped estab- against

Jish the Austin-based resource cen-

ter, which recruits and assists law- ity.

yyers in death penolty cases. And the
‘Texas Bar Association, criticized by
ont-ol-state lawyers for generally ig-
noring the problem in recent years,

finally began mounting its own cam- ji

paign las fal.

James B. Sales, president of the he
litigation

‘Texas Bar and head of the
department at the Houston firm of
Fulbright and Jaworski, wins much
of the credit for the cbange in atti-
tude ofthe state bar.

‘Suill, many of the state's larger
Jae firms have resisted the bar's urg-
ings.

“There is a natural reluctance by
some — quite a few, frankly — to

take on a major pro bono matter rep-

n cline representing a client because

he is unpopular, 2s well as to provide
services when asked by the bar. even.
though a client cannot pay. The bar

CAPITAL PUNISHMENT:

A SOUTHERN PHENOMENON

TEXAS’ DEATH ROW
POPULATION KEEPS GROWING

‘Since me Court

capt
1976, 111 prisoners have been put to death—wh st
‘Soutiem states accounting for nearly B2 percent of those

Oo
ve

ee cs “The eight other statas with execubons since 1976:

Coanoel “at "ts ‘Awana 4 G5%) Reed 2 Ee
‘every stage of the pro-

eins, tncinding | | caine 3 (27%) Geroina 2 (1.8%)

appeals Dah rey indian — 8 118%)

Congress, as part of the 1988 om- :

ak Mssnoi 8 (27%) Messourt 1 (1.2%)

‘SOURCE: NAACP Legal Detenee and Ecucational Fand nc.

in his dissent Friday. But the major-
ity declined to go beyond its prior
rralings that required states 10 pro-
vide indigent defendants counsel
only at trial and for direct appeal of
their conviction.

“There is, however. significant
‘evidence that in capital cases what is

‘With many of these cases now tak-
‘ing up to 10 years to be resolved, US.

~The focus of the commftiee isthe
{dea that if you can assure competent
‘counsel all up the line. that would
make for a cleaner record and there
then would be less possiblity of er-
ror subject to reversal along the

line.” said US. District Judge Bare
foot Sanders of Dallas, 2 member of
the Powell

‘The ABA's 2yearold death row

Others from the nation’s capital,
‘as well as attorneys from Colorado,
‘are matched with Texans,

Purthermore. the large New York
City bar, which has # long history of
ro bono work, operates independ-
cently. At one point recently. 42 New
York low firms involving 83 attor-
neys were handling 56 capital
in Li states, including the appeals,

Fepresent
under sentence of death in post-con-
viction, remedies.” said Jay Topkis, 2
‘New York attorney with a long his-

tory of volunteer work in the death

penalty field. ad

Mr. Lewis. a partner in the Wash-

ington firm of Miller and Chevalier,

{first responded in fall 1987 to a two-

poge form letter sent by former US.
3

Benjamin’
‘then chairman of the ABA litigation

‘Mr. Tompkins still has habeas
laims. and those could take sever:
‘years to litigate. Now, Mr. Lewis
Joking for help in Texas. Whiles
few furms have expressed sympathy.
none bas volunteered to share tbe

Without help, Mr. Lewis‘ firm may
‘spend so many hours on this cast

‘A short time later, he received 2 could

call from a lowyer affiliated with 0
capital t project at the
University of Texas. Within 9 matter
‘of days. boxes of materials arrived in
‘Mr. Lewis’ Washington office.

He had 30 days to prepare for Mr.
‘Tompkins’ appeal of his conviction
tothe Supreme Court.

“Thad never done 3 death penalty

Mr. Lewis conld be fast starting
his involvement with the Tompkins.
‘case. His appeal was based on both
the judge's instructions to the jury
and whether the prosecutor had le
gitimate reasons in striking three
‘Prospective black jurors. The defend-
ants black

alent of more than $400,000 in-48ga1
time detending Mr. Tompkins, some
of which will be renmbursed.

“This is a Texas problem,” said
Jonathan Lang. who is active in re-
ceruiting Kew York Cty attorneys for
ontotstate work. “T mean. if some-
body wants to earn their living ix
the state of Texas as an attorney
they've got to take thot state as they
find 1 If they find it with aot ot
oor people on death row because
the state wants to have a death-pen-
alty. I think they ought to beyepre
senting these death Tow inmates

“Nee York lawyers, as they hove
always done. shouldn't have to get
fon therr horses and yo down and
tke these unpopular cases”
either

Brandley or Fergusi a
more, argued thedefe..,on the
day of the murder Clarence
Brandley wasnot wearingabelt.
Although Brandley was the only

by Akwasi Evans

Nine years ago next week a
brutal rape and murder ofachild
occurred in Conroe, Texas. A
man wasarrested, convicted and
sentenced to death, but he isn't
dead. The man, Clarence Lee
Brandley, has been the recipi-
ent ofa nationwide campaign to
sve his life by people who are
thoroughly convinced that he is
innocent. Some of those people
are his family members, some
are general citizens who believe
the compelling evidence points
toa different suspect and most
(including a retired district
Judge) are patriotic Texans who
don’t want tobeembarrassed by
having their state execute an-
other innocent inmate.

‘On August 23, 1980, some man
orsomemen violated 16yearold
Cheryl Dee Ferguson and then
cowardly killed her to try and
hide his, or their, crime. The
blonde teenager from Bellville
went to the Conroe High School
gymnasium with a bus load of
female volleyball players and
cheerleaders for a game that
faithful Saturday morning.
Ferguson was the team man-
ager. Sometimeduringthe game
Ferguson left the gym to go to
the bathroom. The next time
anyone saw her she was dead.
‘When the girls in the volleyball
game realized that Ferguson
hadn't returned from the bath-

room they became frightened
and began searching forher. The
police were called and Clarence
Brandley was instructed to join
the search. He instructed his
only assistant still working that
day (he had dismissed the oth-
ers atnoon), Henry “Icky” Peace
to search the auditorium. No
‘one found the girl so they re-
sumed the search, thistime with
more diligence. This time Peace
discovered the dead body of
Cheryl Ferguson in the loft of
the Conroe High auditorium.
Except for socks, the child was
naked.

Clarence Lee Brandley and
Henry “Icky” Peace were both
questioned, searched and re-
leased. When Peace’s car was
searched police found a loaded
.25-caliber Baretta pistol, two
knives, a wooden club, a pair of
handcuffs, a fake drug agent's
identification card and # lewd
drawing. The three other jani-
tors (Martinez, Sessums and
Acreman) whohad been released
early byBrandley weren’t ques-
tioned, neither was James Dex-
ter Robinson, the janitor fired
Uhree weeks earlier. School was
scheduled to start in less than
two weeks and parents were
expressing fear of sending their
children to the school with a
murdering rapist on the loose.
‘The Friday following the moles-
tation/murder Clarence Lee
Brandley was arrested. Bran-

Rev iewing a Murder

janitor with keys to the audito-
rium the defense proved that|
some of the doors to the audito-
rium didn'tlock securely. Infact,
they showed that Brandiey was
not the only employee with keys
to the auditorium. The trial
‘ended in a hung jury. Eleven of
the white jurors thought Bran-
dley was guilty, but one “nigger
lover” was sure.

Clarence Brandley’s second
trial was more decisive. The
defense brought forth = wit-
nesses ,Brenda Medina, who
testified that she had been
James Dexter Robinson's com-
mon-law wife at the time of the
murder. The woman told the
court that on the night of the
rapeand murder Robinsoncame
home and told her he had to get
outof town because hehadkilled
agirl. Robinson was questioned
and given a polygraph. David

Brandley executed. The pictures
taken of the dead girls body hy
Montgomery County police
“didn’t come out,” because offi-
cer Woody Allen “miscaleulated,”
his camera. Judge Lynn Coker
set January 16, 1987, as Bran-
ley execution date.
‘Clarence Lee Brandley has won
three last minute “stays of exe-
jeution.” :
retired visiting judge hearing
fall the evidence in the Brandley
se argued last year that Bran-
fdley was clearly innocent and
should be given a new trial and
pleased. The Court of Criminal
[ppeols is empowered to grant
randley a new trial, but for
early ayear they have paticntly
put off making decision in this
highly publicized case. Whil
they wait, Clarence Brandley
waits at the Bits Unit of the
mntsville prison System on
‘ath row. He waited there for
nine years now. Nine years of
constant torment and fear, ina
dchumanized position, suffering
for a crime he claims, and most
believe he didn't commit.

dley professed innocence, but the
‘Montgomery County authorities
felt their circumstantial evi-
dence was strong enough to pick
up and charge their man, Clar-
ence Lee Brandley.

‘The state argued that Bran-
@ley came down the hallway
headed toward the girls bath-
room with toilet paper in his
hands when some girls told him
that therewasa girtin thebath-
room. Brandley, the state
claimed, told them he wasn’t
going in the girls: bathroom.
‘Then, they say, he told the four
janitors working under him to
go across the street and begin
cleaning the vocational build-
ing. The state claimed that
Brandley attacked Ferguson and
strangled her with his belt
Expert witnesses, Tony Arnold,
testified that ahair found onthe
girls socks could have been ne-
roid.

‘The defense contended that
when Brandiey sent his crew to
the vocational building he went
to his office where he sat, smok-
ing cigarettes, waiting for the
‘men to complete their task. Two
of the men went to the store
while Brandley was waitingand
one, Gary Acreman, came back
to the main building, according
to counsel for the defense. Cau-
casian hairs thathad been “forci-
bly implanted” in the girl pubie

Glenn Raney who administered
the lie detector test pointedly
asked Robinson if he had,
“caused the death of Cheryl
Ferguson.” He testified under
cath that Robinson hesitated for
about three and a half minutes
before uttering, “Well, 1 don't
remember. I could have done it
and forgotten, No, I'm not that
kind of person.”

Edward Lynn Payne, the fa-
ther-in-law ofjanitor Gary Acre-
man testify that Acreman came
home shaky the morning of the
murder and tolé him that he
had to“go back to the school and
get the girls clothes out of the
dumpster before the police find
them.” Acreman denied the
claim, but admitted seeing
James Dexter Robinson at the
school that morning. The state
countered with astudent, Danny
Taylor, who Brandley had con-
fronted two weeks prior to the
murder when the boy pulled a
knife on another employee, who
testified thathebadheard Bran-
dley say “if he got one of them
alone, ain't no telling what he
might do” The all white jury
found Brandley guilty on Febru-
ary 14, 1981, and sentenced him
todeath.

The defense automatically
appealed, but the third trial
yielded the same results. The
‘statehad some how “lost” all the

=

Death Pen

by Akwasi Evans

‘The state of Texas should out-
Taw the death penalty immedi-
ately. Every state in the United
States should immediately out-
law the death penalty and ex-
amine more innovative ways of
handling people convicted of

NoKA

CausT, TEXAS)
FRI. Aue. I,

alty Dumb
committing unpardonable
Simos fe Sondee

When someone kills another
human being that person, or
Persons should be punished and
they will have to answerfortheir
‘sin, When the state kills and in-
carcerated convict, we the tax-
payers, become accomplices ina
cycle of killing that will keep re-
volving until someone (hopefully
the state) displays the wisdom
to stop the executions and finds

other ways to deter this kind of
crime. After all, the criminal is
under the total control of the
state after he or she has been
caught, charged, tried and con-
vieted.

Ignoring the cliche arguments
like killing the criminal won't
bring the victim back, the fact is
that more often than not we let
the criminal off the hook when
we execute them. Anyone, ex-
cept the state, who has taken a
life has to live with a fact, day in
and day out. They, no doubt,
carry their victim with themeve-
rywhere and many are inter-

; nally tormented by the realiza-

‘area were not explained even , evidencethat pointed toward the
though test showed that the other suspects ana tney wanted

| tion of what they have done.
| When the state executes them |
| theirsufferingisover. When the

1989

state learns that they have exe-
cuted an innocent person, as the
state often has, should the state|
becharged with murder andexe-
ented. That notion is a prepos-
terous and the notion that kill-
ingakiller make society safer or|
saner. The death penalty is are
flection of our fear and igno-
rance. We are afraid the person|
we have locked up and we.

haven't discovered how to effec-'

tive deal with him or her, so we
react in the archaic ways of our
ancestors.

“An enlightened state in apeace
loving democracy doesn't need
to take life to save life. Weneed
to teach love and take the time
tofindnew solutions toold prob-
ems that have previously been

addressed with anoldtestament .

mentality.

‘There are also men and women ;

on death row who are definitely |

guilty of the crime they are ac-
cused of committing. Thepeople,
I believe, should be punished
and thatpunishment should last
a very long time, even forever.
They should not, however, be
absolvedof paying for their crime
by having a representative of
the taxpayers emulate their

crime by putting them to death. *

That is nor a wise or religiously
appropriate thing for the state
todo.
E.gh court
refuses 8
‘Texas cases

Death row inmates
are denied appeals

United Press International

HUNTSVILLE, Texas — The US.
Supreme Court refed Monday to
hear appeals from eight Texas death
row inmates, including a man con-
victed of killing four people in an
airplane hangar near Sherman.

None of the condemned killers in-
volved in the rulings has a pending
execution date. They were:

lester L. Bower, sentenced to
death for the Oct. 8, 1983, murders of
Bobby Glen

‘Tate, Ronald Mays,
J Jerry Mack Brown.
each sutfered multiple
gunshot wounds from a .22-caliber
ol alter they met Bower at a

"s B&B ranch
jes said the
motive for the slayings was the theft
of $2,000 ultralight aircraft

4 John Fearance, convicted twice
in the December 1977 death of Larry
Faireloth, who was stabbed repeat-
edly after Mr. Fearance broke into
his Dallas home.

‘Pamela Perillo, who was con-
victed twice and sentenced to die for
the February 1980 robbery and mur-
der in Houston of Bob Skeens, 26, of
Houma, Lat

mTroy Kunkle of San Antonio,
who was sentenced to die for the
Aug 12, 1984, lalat shooting of Steven
Horton, 30, of Corpus Chri

wCalvin Williains, convicted of
the June 2, 1980, rape-strangulation
ellie Fields Anderson, a Hous-
el agent.

wRicardo Guerra, whé was sen-
tenced to death for the July 13, 1982,
inurder ol a Houston police officer.

w Walter Bell was sentenced to
div tor the July 1974 shooting of Ferd
Chisum, 50, who had hired Mr. Bell
to work m his Port Arthur appliance
ie inmate also is serving a
atence lor killing Mr.
's wile, Irene.

w Carl Kelly was sentenced to die
after admitting that he took part in
the robbery of a Waco convenience
store,in 1K) and the abduction and

Conviction of Texas Death Row inmate overturned

By Richard S, Dunham
TIMES HERALD WASHINGTON BUREAU

: WASHINGTON — The Su-
preme Court, citing improper tes-
timony from a prosecution psy-
chiatrist, Monday unanimously
overturned the conviction of
Texas Death Row inmate David
Lee Powell.

+ ‘The court found that Powell's
constitutional right against self-

incrimination was violated when -

he was examined by a psychia-
trist, Dr. Richard Coons, and a
psychologist, Dr. George Parker,
without being informed of his
right to remain silent. |”

Coons and Parker testified
against Powell at his sentencing
hearing, saying he was likely “to
commit future acts of violence
that would constitute @ continu-
ing threat to society.” S
} ‘The Texas Court of Criminal
“Appeals had twice rejected Pow-

ell’s appeal, concluding any vio-
Jation of his constitutional rights
was a harmless error.

But the Supreme Court, in an
unsigned opinion released on the
final day of its 1988-1989 session,
said Powell's attorney “should
have been informed that he was
to be examined on the issue of
future dangerousness.”

Also on the final day of the
court session, the court over-
turned death ‘sentences handed
down to three Texas murderers
— Miguel Richardson, Gary Gra-
ham and Clifford Boggess — and
ordered their cases to be re-
viewed by the Texas Court of
Criminal Appeals in light of the
high court's decision last week in
the case of mentally relarded
murderer John Paul Penry.

In the Penry case, the Su-
preme Court held that ‘Texas’
method of instructing juries in

“capital murder cases did not per-

Betty Beets may get executlon date

MNGATESVILLE, Texas — Betty Lou Beets, whose
murder conviction was recently upheld by the U.S. Su-

preme Court, could become the first woman to be
executed by the state of Texas. Mrs. Beets, 52, was
convicted of capital murder in the 1983 slaying of her
fifth husband, former Dallas Fire Capt. Jimmy Don

Beets, and indicted on murder charges In the killing of
her fourth husband, Doyle Wayne Barker. The bodies
‘of the men, both shot in the back of the head, were
Unearthed in her yard near Payne Springs in 1985.
She was scheduled for a sentencing hearing June 27,
but it was postponed until after the Supreme Court
ruled on her appeal. Last week, the high court re-

jected her claims of an unfair trial, af

Henderson

County District Attorney Bill Bandy sald he expects to

reschedule her sentencing date soon.

mit defendants to present mili-
gating evidence.

Treason

In my opinion, desecration of the American flag is
an overt act of treason and should be treated as such.
I think it deserves the death penalty.

ELDRED J. ROBINSON,
Dallas

Ace ARTICLES TUES. Tudy 4) 789
DALLAS TINES HERALO + NoRwING NEWS
Cook murder appeal undecided

Court recesses without ruling on case that earlier was delayed 8 years

By David Hanners
‘Saf Writer of The Dallas Moraing News

The Texas Court of Criminal
Appeals adjourned for its summer re-
cess Wednesday without ruling in
the case of death row inmate Kerry
Max Cook, adding yet another delay
to a case that has set records for de-
lays.

The court heard new arguments
in Mr. Cook’s 1977 capital murder
case on Jan, 18, and attorneys on
both sides said they had hoped the
judges would hand down a ruling be-
fore taking their summer break.

“We can’t rush the court to do it,
but obviously, we want it resolved,”
said Michael Sandlin, assistant Smith
County district attorney.

“Every week that goes by is in-
credibly frustrating and incredibly
hard on Kerry and his attorneys. It’s
not fair to anybody at all in this
case,” said Scott Howe, who is repre-
senting Mr. Cook.

But Mr. Cook is not umaccus-
tomed to his case being delayed by
the state’s highest criminal appeals
court. His initial appeal sat before
the court for nearly eight years be-
fore it was ruled upon, the longest
such delay in the nation’s history, le-
gal experts believe.

‘The court will hand down rulings
once a month for the next two
months, but it will not return in ses-
sion until Sept. 13, said court clerk
‘Thomas Lowe.

Mr. Cook was sentenced to die for
the 1977 mutilation-slaying of a
Tyler woman, a crime he says he
didn’t commit. Although a 1988 in-
vestigation by The Dallas Morning
News raised serious questions about
Mr. Cook's guilt and the fairness of
his trial, Tyler police and Smith
County District Attorney Jack Skeen
Jr. have refused to re-examine the
case.

The Texas Court of Criminal
Appeals upheld Mr. Cook's convic-
tion and death sentence in Decem-
ber 1987, setting the stage for Mr.

BoTtH ARTICLES FRO
DALLAS Mogu me MEWS

THEIRS. Tune” 24, 1989

teal Ve
Kerry Max Cook. . . was sen-
tenced to die for a 1977 muti-
lation-slaying, a crime he
says he didn’t commit.

Cook’s execution by lethal injection.
But last fall, the U.S. Supreme Court
stayed the condemned man’s execu-
tion and ordered the state appeals
court to review the case.

The review focused on the nar-
row legal issue of whether the judge
at Mr. Cook’s trial was right in allow-
ing jurors to hear testimony from a
prosecution psychiatrist who had in-
terviewed Mr. Cook without reading
him his rights.

‘The court of appeals said the
judge erred in allowing the testi-
mony but that it was a “harmless er-
ror.” The U.S. Supreme Court, ruling
in the case.of Texas death row in-
mate John T, Satterwhite, whose
case paralleled Mr. Cook’s on the is-
sue, said a constitutional error is
never harmless.

‘The state appeals court has heard
arguments in two other cases involv-
ing the Satterwhite issue. In them,
decisions were handed down in 119

Review ordered of murder conviction

days and 154 days, The court has had
‘Mr. Cook's case 161 days. -

Mr. Cook's initial appeal was ar-
gued before the court on Feb, 13,
1980; a decision was handed down
Dec. 9, 1987, The delay: 7 years and 10
months, a ae

Court records show that Mr.
Cook’s case was one of five death
penalty cases argued before‘ the
appeals court on the same day. Of the
four others, one was decided in 27
days, another in 41 days. A third case
was decided in four months, while
the fourth was decided in seven
months. -_

‘The nearly eight-year delay in
Mr. Cook’s case may itself be cause
for overturning the conviction, said
Mr. Howe, who is with the Texas Re-
source Center, an Austin-based
group that assists death row inmates
in their appeals. b

“It's beyond anything I've ever
seen as a lawyer,” said Mr. Howe.
“There is no reason I can imagine
why a case would have taken so
long.” st
Mr. Howe said a federal appeals
court in New York last month over-
turned an inmate's conviction and
ordered the man freed from prison
becatse of a six-year delay in that
aman's case, The court wrote that the
delay was a “mockery of justice.”

Mr. Howe said that if the state
appeals court doesn’t reverse Mr.
Cook's conviction on the Satterwhite
issue, “the delay will be an issue that
will be raised in the federal courts.”

But John F, Onion Jr., the appeals
court's retired presiding judge, said
he doesn't believe that inmates
should go free just because courts
are swamped. wo

“That a person should go free, re-
gardless of the crime he committed,
just because the court has a heavy
caseload, that doesn’t sound right to
me," said Mr. Onion, who wrote the
81 majority opinion that upheld Mr.
Cook’s conviction and sentence,

™@ AUSTIN — The Texas Court of Criminal Appeals on
Wednesday directed a trial judge to further review a
Dallas County capital murder convictlon to determine
whether Ronald Curtis Chambers was denied a fair

trial because black people were excluded trom the
jury. In May, after the first court-ordered review of the
case, the trial court ruled for Mr. Chambers, who is
black. But the Court of Criminal Appeals said the
judge was wrong not to consider a prosecutor's testi-
mony in deciding whether the state had a valid, race-
neutral explanation for using its legal discretion to ex-
clude three black people from the jury. Mr. Chambers
was sentenced to death in 1985 for the April_1975
beating death of Mike McMahon, a 22-year-old Texas
Tech University engineering student who was ab-

ducted outside a Dallas nightclub,
\ oo Monday, October. 9, 1989 ‘The Pallag Horning News ir A

nae Fe yay eclings are of frustra- «
‘Svtlon, -anger, and, yes, hate,

‘aphazard shape our-criminal Justice system is in
here insTexas, Anger at our society for what hap-
pened to Amy Thatcher and for all the other Amys
_who have been raped, sexually assaulted and, yes,“
‘killed, My hate s for the abusers — the animals that
‘our society keeps'on and on turning loose.on the
‘Amys of the world when they should be in prison —
oreven betteryet,exected! or tien vs Bh

My heart goes out to the families of these little
girls — they will never be the same again: After ;":
this, the word rape will take on a new meaning. At.
ter this, the violence on television shows will not
beso well tolerated, {41 ree

All of us-want to lash out at the policg depart- *

“ments-and sheriff departments when bad things ~*
ike this happen in our society, I want to tell you,
though, that We are venting our anger In the wrong
direction. There are always people out there who *
say they just don’t believe in the death penalty, 1
know, because I was one of them. There are always
going to be people in our soclety who are so con-
cerned about the rights of the killers, but not over.
“the rights of the victims, That is the way things are
today. : R

‘Today, the victim or victims are folt very sorry
for, and we the public wear almost a guilty look
‘when a discussion comes up about someone who
has been murdered, We can’t help it, because these
things make us uncomfortable. We don't really
want to face the fact that we are not safe in our
homes any more, or that our litte girls are being,
raped and killed on the streets. Why? Because in’
‘most cases it hasn't happened to us yet, It did to me,
‘though — my daughter was raped and murdered 10
‘years ago, a: :

If you are a parent,think of one of your daugh:
ters, think of how much you love,her, think of all
the plans you have for her. Imagine the devastation
in your world if she didn't come home tomorrow.
‘Think of her belng raped and strangled. Picture
going to her funeral, It is very hard, but a lot of us
have been down that path, I answered the doorbell
one graduation night, and was told that my little 17-
year-old daughter Jeana had been killed,

‘There is no easy way for a sheriff's deputy to”
break that news to a parent. The agony of the next

+ few days will always be with me, The talking with

= my husband about how ean we tell our other chile
dren, the anger of who would do something like, .
this, You see, she was raped and strangled. Our com.
munity of Lewisville, Flower Mound end surround-
ing areas was devastated. .

+ “Somehow, our family survived the next few days;
we had her funeral, and our church in Lewisville
‘was full. We buried her at the little Flower Mound

sters must

Frustration of the muddled ‘tyes

ed pos

Cemetary. I go out there from time to time to visit
‘her grave. Even after all these years; itis still hard,
-to accept — you never really do.

* Let me tell you something of Jeana’s killer, He
was convitted and sent to prison in 1973 for bur-
glary. He served some time, but was released, Then
in 1978 he killed our Jeana, He was tried at the cost

of over $100,000 to Denton County as an indigent in

‘a changeof-venue trlal at Wichita Falls, He was
found gullty and sontenced to death, He spent the
next five years on death row — no execution, even
though a jury assessed the death penalty. After five
years on death row, his conviction was overturned
‘ona technical error during this arrest, He was then
sent back to Denton County for a retrial,

During all this time, our district attorney kept us
informed on what was golng on. He had the choice
of either retrying the killer or working out a plea
bargain, We agreed to the plea, and it was for 30
years. Last Christinas, 10 years after Jeana’s death,
this monster was released {rom prison. He had
“served his time," I was told. Four months later, on

Friday night, our sheriff called me at my home
‘and said he had arrested him again for sexual abuse
‘ofa minor, He is again in the Denton County jail.

‘Our problems are not with our police or sheriff's
people. Our problems are in our laws; they need to
be changed, If we have the death penalty on the
books, let's execute killers; if they receive 20 years
in prison, let's keep them in prison for 20 years,

e kept off stre

| space.

ets

Let's quit trying to lock up the world, That is why
these killers are falling through the cracks and are
free to kill again, Our jails and prisons are full to
‘over capacity, and the keepers of these institutions .
are only trying to do their jobs without enough,
Whére we need to go with our ideas of prison.
and criminal justice reform is to our judiciary ax

“to our legislators to got some real justice reform —;

not gripe at the parole board, It is just trying to,,
move people through the system, : ‘
Do you know how many thousands and thoy,
sands of outstanding traffic warrants there are out -
there right now just in Denton County? And do you ,
know that if a person does not pay that traffle ticket
in a period of time, d warrant is issued for bis ar-.
rest? This person did not steal or Kill, but if he is.
picked up on thot warrant, he is put in Jail. Why
can’t the laws be changed so that the person has his
driver's license taken away for a period of time?
‘Then the counties might have room to keep the r
pists and murderers in jail. 1 cannot understand
‘why some things that make sense can't he done to,
alleviate our prison problem, 1
Idon't know where I can go from here, butif you
care as I do, let's please try to do something to miake.
Stsafe in our state once again for litte girls to walk

to school and go to graduation parties. i

‘Lee Walker is a Denton County commissioner,
When Innocent People
Are Sentenced to Die

To the Editor:

I have read many letters in your
columns on capital punishment. I’m a
death-sentenced citizen, so you might
expect me to say I am against the
death penalty. However, no matter
what your views on capital punish-
ment, I haven't heard anyone advo-
cating it for innocent citizens. Those
who favor it would not favor it for
themselves or any member of their
own families.

Thave written to New Jersey politi-
cians (State Senators John F. Russo

and Chuck Hardwick, and Assembly- |

men Thomas J. Shusted and Dennis
L. Riley) and asked them to consider
compensating the innocent citizens
who are wrongly sentenced to die.

If you favor capital punishment for
the guilty, you should also favor capi-
tal compensation for the innocent. If
you don’t, you’re a hypocrite!

If New York State does bring back
the death penalty, I hope that the
Legislature considers a clause to
compensate wrongly convicted inno-

cent citizens. Remember Isadore;
Zimmerman. He was wrongly sen-,

tenced to die for crimes that he didn’t
commit. Although he’s forgotten when
the subject of capital punishment
comes up, he lives on in the Guinness
Book of World Records. Who's next?
Maybe someone in your family?
Maybe you? RONALD E. LONG SR.

Trenton, Aug. 4, 1989

NY, TIMES

ema

FRI, Auc. 2s,

1789

Lawyer’s ploy could get
client death in old case

By Mark Potok
OF THE TIMES HERALD STAFF

John McCrory was paroled af-
ter serving 10 years in state pris-
on for raping and murdering a
Denton County commissioner’s
11-year-old daughter. But now,
because of a legal maneuver by
his defense attorney on another
charge, he may face the death
penalty — for the same murder.

After McCrory was charged
with a sex crime in April, prose-
cutors sought a ‘heavier penalty~
than normal based on his previ-
ous convictions for. the murder
and a theft charge.

Tom - Whitlock, McCrory’s 3
court-appointed defense attorney,
looked into the previous convic-
tions and found prosecutors in
the murder case never. filed the
required paper work on McCro-
ry’s 1978 murder of Jeana Walk-
er, So he asked a state judge to
void the conviction, reasoning
McCrory would~face a lesser
punishment on the sex charge if
convicted. { «

But Denton’ County District
Attorney Jerry Cobb, faced with
the possible voiding ‘of the mur-
der conviction, responded by
asking a grand jury to reindict
McCrory for the killing — this
time on capital murder charges.
On Thursday, a Denton County
grand jury complied.

If the original murder convic-
tion is voided, then prosecutors
apparently would be free to try
McCrory again without violating
guarantees against double jeopar-
dy, the legal principle that pro-
hibits trying someone twice for
the same crime. If not, prosecu-
tors say they plan to go for a life

sentence on the sex offense
charge.

McCrory originally was sen-
tenced to death for raping and
strangling Jeana Walker, the
daughter of Al and Lee Walker,
who is now a Denton County
commissioner. But an appeals
court struck down the conviction
in 1983 because a written confes-

sion and another he made verbal-
‘ly to a psychiatrist were ruled in-
admissible. Instead of retrying
the case, a plea bargain was
reached whereby McCrory plead-
ed guilty and was sentenced to
30 years. -

He served 10 years and was
paroled last December. ‘i

If McCrory is tried again for
the murder, Cobb says he has
compelling new evidence — the
confession McCrory made to a
judge as part of his plea bargain.
He’ said: that even if Whitlock
withdraws his motion.for a void-
ed conviction, he’ll now insist ;
that it be ruled on.

If the original murder convic-
tion were voided, the most prose-
cutors could get on the sex crime
charge would be two to 20 years. +
If it stands, prosecutors could
seek a minimum penalty of 25 |
years and up to life in prison be-
cause of the earlier convictions.

Whitlock said both he and his
client understood the risk in
seeking 4 voiding of the: murder
charge: But he added that he is
confident the state will not be
able to tty McCrory again be-
cause the plea bargain amounts
to a contract between McCrory
and the state.

“John took the punishment
and he fulfilled his end of the
contract with the state, and I‘
think they will be held to their |
agreement,” Whitlock said.

“There’s no such thing” as:
such a contract, Cobb retorted. |
He said the conviction “is void or
it isn’t void, and the fact that he |
spent 10 years in [prison] has
nothing to do with it.”

McCrory’s attorney may now
be forced to argue the opposite of
what he planned to — that his
client was convicted of the mur-
der charge, so he can’t be tried
again. But Whitlock still hopes to
convince a judge to void the case
and also rule out a new murder
trial.

“Maybe I can’t have my cake
and eat it, too,” he said. “But
we're going to try for it.”

DACLAS TINES HERALD

SAT.

ANG. 26, 1989
Supreme Court to review

shen

Texas death penalty case

By Slave McGonigle

‘Washington Bureau of The Dalla Morning News

|| WASHINGTON — The US. Su-
preme, Court agreed Tuesday to re-
view-the death sentence of a Harris
inty man to determine whether
‘Texas death statute unfairly ex-

cluded-testimony about his mental *

illness from his trial.

The court accepted for review
-the case of John Henry Selvage,
who was sentenced to die in Febru-
ary 1980 for the murder of Harris
County Sheriff's Deputy Albert
Garza -during a 1979 Houston
jeweliy'store robbery. ©

ty Appellate attorneys for Mr. Sel-
‘vage, contend that his trial. attor-
néys’were improperly prevented by
the Texas death penalty law from
introducing evidence to the jury of
Mr. Selvage’s long-term mental ill-
ness.

. .-n-accepting the case, the Su-
preme: Court’ limited the isstie to
whether there is a procedural pro-
hibition to Mr. Selvage’s claim that
resulted in a “fundamental miscar-
riage of justice” in his case,

The decision to hear the case
provides the court “ith a vehicle
for defining the scope of its deci-

sion in June in another Texas death
case involving John Paul Penry, a
mentally retarded inmate. The
court ruled in Mr..Penry’s case that
a retarded person could be exe- |
cuted if the jury that sentenced him
was provided with evidence of his
retardation and allowed to consider
it while deciding punishment.’ |

In a second case related to the
Penry decision, the Supreme Court ;
sent the death sentence of Johnny
James of Winnie back to the Court
of Criminal Appeals for further re-
view. Mr. James was convicted in
1986 of the murder of Barbard May-
field, a High Island tavern operator.

The court also barred Ruben R.
Montemayor, a member of the
Texas Board of Corrections from
1975 to 1981 and for three months in
1984-85, from practicing before the
US. Supreme Court, Mr. Mon-
temayor, a prominent San Antonio
immigration lawyer, was accused of
“Intentionally neglecting” the i
cases of 10 immigration clients. He
agreed in March to accept a three-
year probated suspension of his law
license by the Texas Supreme Court
and repayment of atout $10,000 in)
legal fees.

DALLAS MoeRnine NEWS

WED. OcToBER Il, 1989
i. ‘Pace of

By ROBERT REINHOLD
‘Special to The New York Times :

HOUSTON, Aug. 18 — So many con-
victed murderers were scheduled to die
last week in Texas that the state prison
director has asked the courts to avoid
scheduling more than one execution a
day. i

While all those to be put to death re-
ceived stays of execution, the move
‘was a dramatic sign of the acclerating
pace of executions in Texas and across
‘the country since two years ago when
the Supreme Court upheld, speedier
handling of appeals from people await-
ing execution. i

‘Already this year 15 people convicted
‘of murder have been put to death, five .
of them here in Texas, more than in
any other state: And Attorney General
Jim Mattox has said he expects the
state to be executing one convict a
month by the end of this year.

‘Texas has 211 condemned convicts on ©
death row, more than any other state
except Florida, which has 221. Florida
has executed 3 so far this year. South- °

+ Executions Become Routine
Executions have become so routine ,

‘United Press Tnteationl
'? Charlie Brooks, whose execution

extensive media coverage.

political and legal support for the death
penalty, are altering their tactics, say-
ing they expect it to be a long time be-
fore public attitudes can be changed.

We'll have it with us for.a genera-
tion,” said Henry Schwarzchild, direc-
tor of the death penalty project for the
American Civil Liberties Union in New
York. “There is almost no likelihood of
our abolishing it by litigation or in the
arena of public policy.”

‘The Right Battle to Fight’ _

He added that opponents would
nonethless try to keep the issue alive

» because it is “the right battle to fight,”

and he predicted that, like slavery, the
death penalty would ultimately be
abolished, ‘‘in the long run, when crime’
is not so fear-producing.””

‘As of Aug. 1, there were 1,540 men
and women on death rows in the United
States, according to an A.C.L.U-tally.

Only six convicts were executed
from 1976, the year the Supreme Court

~ permitted the states to resume execu-

tions, to the end of 1982. The pace quick-
ened in 1983, with 5 executions, and
then quadrupled to 21 last year. Mr.
Schwarzchild estimates there will be
as many as 50 this year. Of the 47 ex-
ecutions since Gary Gilmore was shot
to death by a firing squad in Utah Jan.

in Texas that they draw little public at-
tention. When Texas executed Charlie
Brooks in December 1982, the first ex-
ecution in the state after the Supreme
Court reauthorized the death penalty,
scores of reporters, from all over the
country and demonstrators for and
against capital punishment were
drawn to the prison system’s headquar-
ters in Huntsville, where all Texas’ ex-
ecutions take place.

‘This year’s executions have drawn
only minor notice from the press, and
few demonstrators.

Lane McCotter, director of the Texas

F =
Department of Correction, asked the
courts to coordinate executions better
after he learned that four convicts had
been scheduled to die on two days last
week. All but one of them, Jay Kelly:
Pinkerton, received stays after Mr.
McCotter’s request, and Mr. Pinkerton
was granted a stay by the Supreme
Court less than 30 minutes before his
scheduled execution Thursday by le-
thal injection for raping and mutilating
an Amarillo woman.

Opponents of the death penalty, ac-
knowledging the overwhelming public,

{ 17, 1977, 13 have been in Florida and 9in
Texas.

Even with the acceleration, the num-
ber of executions has corne nowhere
near the 250 or so people a year who are
sentenced to death. While some will
presumably have their sentences re-
duced on appeal, this raises the ques-
tion of how the states are going to cope
with the increasing load.

“The backlog will continue to grow —
I have no scenario of how society will
resolve this,” said Mr. Schwarzchild.

He said it would take six executions a
day nationwide to clear up the backlog,

.| backlog and there has been little oppo- "

if all were to be executed by the end of =
the year. : x

The logjam began to.break with the
Supreme Court ruling on July 6, 1983,
that held that a Texas inmate could be
executed even though a constitutional
challenge to his murder conviction was ..
still technically pending. That inmate, *:
Thomas Andy Barefoot, was executed
Oct. 30, 1984, for killing a police officer. %

Since then judges in Texas and other
states have been trying to clear up the

Pas

sition from the political leadership.
Here in Texas, Gov. Mark White has so
far refused all pleas for clemency or
stays. .

Attorney General Mattox, something
of a liberal on many other matters, has
been equally firm. “The Legislature in
Texas has decided they wanted the .
death penalty, so we are just trying to
enforce the law,” said his spokesman, “
Elna Christopher. ;

Debate Shifts te Moral Grounds

Given the prevailing view, ‘the
A.C.L.U. and other opponents no longer’
seek publicity for each’ case, feeling
that this tactic often evokes public :
sympathy for the victim of the crime.
Rather, they seek to pursue the debate
on moral a

“The individual execution no longer
commands public attention,” said Mr.
Schwarzchild. “But the issue of the
penalty is a high-profile issue.” E

Accordingly, opponents. say they
have begun to lose interest in candle-
light vigils at prisons and other pro-
tests of executions.

“How many times are our people
going to run up from Houston to Hunst-
ville to hold a candle in the middle of
the night?” asks Mr. Schwarzchild.
“Like newspaper editors, our people
get tired if it happens that often, partic-
ularly if there is no obvious change in
the outcome”

Be

08/25/93

09:42 Se

304 HOUSTON

Ghe Hallas Morning Reus

Wednesday, August 25, 1993

oo1/o0r

Should Gary Graham die
without a clemency hearing
before the Texas Board of,
Pardons and Paroles?

T'm hearing that .ques-

tion a lot these days from
reporters, lawyers and
is member's of the public.’
JIM . As the attorney general
‘MATTOX of ‘Texas from 19821990, I
| Was the man responsible for
36 executions in the state,
J did not prosecute those inmates at trial, That
was done at the county level in district courts,
I did not shoot the lethal injections into their

Texas’ death penalty dilemma

truth, and the state kills him for a crime he did
not commit? .

‘The new evidence in Mr, Graham's case
should be heard, and the proper forum in Texas
at this stage is the Texas Board of Pardons and
Paroles.

But the unelected board, appointed by the
governor of Texas, has no procedures in place to
guide them as to how and when to condtot such
a hearing. .

“Now, Judge Pete Lowry in Anstin has ordered
the. board to hold a clemency hearing, saying
that is “the only fail-safe" available to someone
who may be able to prove his innocence, ,

And Judge Lowry's order does not ignore the

~ rights of victims’ families

veins, An executioner did

that. Life without parole could and loved ones, His order

plainly states that the fam-

But th re millio
ut the attorney gener cove millions of dollars. It {iy of the victim may

is responsible for defend-

ing the state's death pen- currently costs three

alty law in the courts when

inmates seek to stay alive times as much — more
by legal challenges to the thar $2 million per -

system. I defended Texas’

present testimony at any
such hearing, along with
the prosecution.

L agree with Judge Low-
ry, Is‘the trouble of hold.

death paralty statute, and I inmate — to carry out the ing one more hearing

was very successful at it,
In that role, I witnessed

death sentence than to

more important than mak-
ing absolutely certain

most of those, 36 inmates Keep an inmate in prison . merehas been no mistake?

die. é
So don’t think. I'm soft for 40 years

I think not.
Moreover, maybe it's

on the death penalty, I'm not.

But Gary Graham's case clearly reminds me of
another high-profile death penalty case, that of
Clatence Lee Brandley, who waa wrongly con-
vieted of raping and murdering a high school
cheerleader in Conroe. Mr, Brandley is free now,
but he almost lost his life.before justice came
through. . i

Just like Mr. Graham, Mr. Brandley's convic+
tion and sentence were upheld by the courts.
And just like Mr, Graham, new evidence was dis»
covered too late to be presented ta the courts.

But instead of pushing ahead full-throttle to
execute Mr: Brandley, my office did not object to
his receiving a hearing on the new evidence,
‘That was done in the courts, and the issue was
resolved before it went as far as Mr. Graham's
case. .

I don't know whether Mr. Graham is guilty or
not, Ido know he's a bad character with a history
of violent crimes, But what if he’s telling the

time Texans considered changing our death pen-
alty law to do what many other states hhave done.
Give juries the option of sentencing a murderer
to death or life in prison without parole, That
way, if mistakes were made in the prosecution of
a cage, it wouldn't wrongly cost a life, And if the
inmate was guilty but technical mistakes were
made at the death penalty punishment portion of
trial, there would be less chance of a murderer ,
being set free because his death sentenca was
overturned. Clemency could be granted, chang-
ing from death to life in prison, ‘put the public
‘would not have to worry that a violent criminal
would get out of prison.

Life without parole could save millions of dol-
Jars, It currently costs three timesias much —
more than $2 million per inmate — to carry out
the death sentence than to keep an inmate in
prison for 40 years.

‘mn other words, it's a lot cheaper to lock ‘em
up and throw away the key — something that

, Texas law does not currently

allow. 3

As violent crime contin-
wes to escalate, it's something *
to consider,

"Jim Mattox, a former
Texas attorney general, is
practicing law in Austin,

{
|
|
[

Texas

|) DEATH ROW LIST

Aett

pal

TX De ye a of.

Co TaN A L. “justice

(Pobh

AUGUST 18,1995 PAGE 1
. DATE PRIOR
EX# . NAME DOB *RACE REC'D COUNTY OF CRIME TDCJ-ID
“SAL White, Excell 03/14/38 wW/* 08/26/74 Collin 05/11/74 No
524 Bell, Walter 12/09/53 B/U 05/20/75 Jefferson 07/19/74 No
533 Granviel, Kenneth 08/04/50 B/U 11/21/75 Tarrant _11/11/76 No
539 Chambers, Ronald 01/11/55 B/* 01/08/76 Dallas 04/11/75. No
541 Riles, Raymond 06/01/50 B/W 02/04/76 Harris 12/10/74 Yes
550 Felder, Sammie 09/23/45 B/W 06/29/76 Harris 02/26/75 Yes
552 Woods, Billy 12/20/46 w/U 07/30/76 Harris 10/10/75 No
556 Hughes, Billy 01/28/52 W/W 09/17/76 Matagorda 04/04/76 No
560 Vanderbilt, Jimmy 11/25/52 W/U 12/01/76 Potter 04/01/75 No
575 Muniz, Pedro 09/25/56 H/W 10/07/76: Williamson 12/20/76 No
577 Earvin, Harvey 04/07/58 B/U 10/26/77 Angelina 12/12/76 No
580 Faulder, Joseph 10/19/37. W/U 12/09/77. Gregg “+. 07/09/76 No
581 Green, Randy 09/12/55 W/U 12/22/77 Harris *06/28/76 No
587 Pierce, Anthony 07/20/59 B/B 03/20/78 Harris 08/04/77 ° No
591 Lackey, Clarence 08/03/54 W/W 04/17/78 Tom Green 07/31/77 Yes
600 Cook, Kerry 04/05/56 W/W = 07/18/78 Smith 06/10/77. Yes
609 Jordan, Clarence 04/09/56 B/U 09/12/78 Harris 10/14/77 _Yes
612 Powell, David 01/13/51 W/H 10/06/78 Travis 05/20/78 No
614 Davis, William 04/24/57 B/U 10/10/78 Harris 06/02/78 Yes
615 Smith, Jack 12/23/37 w/U 10/10/78 Harris 01/06/78 Yes
627 Cass, Mark 07/27/55 W/* 01/05/79 Harris 01/24/78 No
633 Johnson, Carl ~ 03/05/55 B/B 05/04/79 Harris 10/06/78 No
634 Cannon, Joseph 01/13/60° W/W. 05/09/79 Bexar 09/30/77 No
636 Aranda, Arturo 05/12/48 =H/U 05/18/79. Webb 07/31/76 Yes
638 Vigneault, Donald 02/24/50 W/B 07/03/79 Wharton 04/26/78 No
640 White, Larry 03/10/50 W/W 08/06/79 Harris 03/03/77 No
642 Reed, Jonathan 10/19/51 W/U 09/06/79 Dallas 11/01/78 Yes
650 Fierro, Cesar 10/18/56 - H/H 02/26/80 El Paso 02/27/79 No
651 Satterwhite, John 12/29/46 B/U 02/28/80 Bexar 03/12/79 Yes
652 Selvage, John 08/07/50. B/U 03/17/80 Harris 07/30/79 No
654 Penry, Johnny 05/05/56 W/W 04/09/80 Trinity 10/25/79 Yes
660 Hogue}, Jerry 09/26/50 W/W 06/06/80 Tarrant 01/13/79 No
663 Moore, Bobby 10/29/59 B/U 07/24/80 Harris 04/25/80 Yes
665 Perillo, Pamela 12/03/55 w/w 09/04/80 Harris 02/24/80 No
669 Session, James 06/29/57.  B/U 10/10/80 Smith 01/08/80 Yes
671 Banks, Delma 10/30/58 B/U 10/15/80 Bowie 04/12/80 No
673 Barber, Danny 05/08/55 W/W 10/31/80 Dallas 10/08/79 No
675 Dunn, Kenneth 10/03/59 B/W 12/19/80 Harris 03/17/80 No
679 Gardner, David 09/23/54 W/U 03/06/81 Parker 08/26/80 No
684 Jenecka, Allen 11/03/49 W/W 06/08/81 Harris 07/05/79 Yes
685 Soffar, Max 12/15/55 w/* 06/21/81 Harris 07/14/80 No
689 Meanes, James . 06/08/56 B/H 08/31/81 Harris 04/04/81 No
691 Richardson, Miguel 07/07/54 B/W 09/24/81 Bexar 03/31/79 Yes
692 Burns, William 07/04/58 B/W 10/12/81 Bowie 12/11/78 No
ef es PAGE 2
fh CC @ived fv oAn,

C.

ne),
REC'D

COUNTY

OF .CRIME _

Graham,’ Gary
Alexander, Caruthers
Cordova, George
Carter, Robert
Nichols, Joseph
Thomas, Danny
Briddle, James

09/05/63

09/07/48
03/26/59
02/10/64
09/08/61
08/30/55
04/07/55

Callins, Bruce 02/22/60
East, Wayne 10/28/55
Rector, Charles 04/16/54
Pyles, Johnny * 12/30/57
Guerra, Ricardo ~*~ 04/03/62
Miller, Donald 06/12/62
West, Robert 12/12/61
Lamb, John ©. 07/24/57
Perez, Manuel 03/23/45
Williams, Arthur 10/05/59
Sharp, Michael 04/24/54
Moreland, James 05/15/60
Lane, Harold 08/30/45
Ross, James 09/02/59
Robison, Larry 08/12/57
Morrow, Ricky. 04/29/54
*Burdine, Calvin 04/08/53
Gentry, Kenneth 01/28/61
Bower, Lester 11/20/47
Trevino, Joe 07/25/62
Martinez, Raymond 07/02/46
Castillo, David 07/11/64
Ransom, Kenneth" 04/15/64
Spence, David 07/18/56
Tucker, Karla - 11/18/59
Sosa,’ Pedro 12/27/51
Moddon, Willie 04/16/48
Kunkle, Troy 05/27/66
Beathard, James 02/23/57
Davis, James 02/08/63
Little, William 10/25/60
Purtell, Robert 05/14/59
Barrientes, Antonio 04/19/55
Wills, Bobby 01/28/67
Duhamel, Emile 03/23/46
Westley,. Anthony 07/18/60
Losada, Davis 04/28/65

H/W
B/W

H/B

11/10/81
02/15/82
03/04/82
03/12/82
03/12/82
04/01/82
04/15/82
07/05/82
09/02/82
09/02/82
10/21/82
12/02/82
12/04/82
02/03/83
04/12/83
04/19/83
05/06/83
06/03/83
06/17/83
07/28/83
09/01/83
09/09/83
12/08/83
02/03/84
03/05/84
05/10/84
07/10/84
07/18/84
09/12/84
09/13/84
10/11/84
12/18/84
01/07/85
01/31/85
03/02/85
03/05/85
03/22/85
04/15/85
04/23/85
05/03/85
05/31/85
05/20/85
05/23/85
06/20/85

Harris
Bexar
Bexar
Harris
Harris
Harris
Harris
Tarrant
Taylor
Travis
Dallas
Harris
Harris ©
Harris
Hunt

El Paso_
Harris
Crockett
Henderson
Dallas
Harris
Tarrant
Navarro
Harris
Denton
Grayson
Tarrant
Harris
Hidalgo
Harris
McLennan
Harris
Atascosa
Angelina
Nueces
Trinity
Travis
Liberty
Palo Pinto
Cameron
Orange

_ Cameron

Harris
Cameron

05/13/81 -No.
04/23/80
08/04/79 - No
06/24/81 No

“10/13/80: No 4

07/18/81 Yes
02/24/80 ‘No
06/27/80 No
11/23/81 Yes
10/17/81 Yes
06/20/82 Yes
07/13/82 No

02/02/82 Yes

08/24/82. No
“11/06/82 No
05/02/82 No
04/28/82 No
06/11/82 Yes
10/09/82 No
11/20/82 No
09/25/82
08/10/82 No
01/19/82 Yes
04/18/83 Yes (
09/10/83 No
10/08/83 No
01/17/83 Yes
07/13/83. Yes
07/14/83 Yes
07/21/83 Yes
07/13/82 Yes
06/13/83 No
11/04/83 No
07/29/84 Yes
08/12/84 No
10/09/84 No
03/03/84 No
12/03/83 No
02/07/84
04/20/84
01/17/85
07/01/84
04/13/84.
12/23/84

: DATE PRIOR

EX# NAME DOB *RACE — REC'D COUNTY OF CRIME TDCJ-ID
799 Lucas, Henry Lee 08/23/36. W/W 06/21/85 Tom Green 10/22/79. No,
> 800 Hathorn, Gene 09/17/60 W/* 07/03/85 Trinity 10/09/84 No
802 Livingston, Charlie’ .02/14/62. B/W 07/25/85 Harris 08/10/83 No
805 Green, Norman 11/07/60. B/U. 09/27/85 Bexar 02/13/85 Yes
807 Hernandez, Rodolfo 11/18/49 -H/H = 12/13/85 Comal *03/07/85: Yes
810 Beets, Betty Lou 03/12/37/ W/W 10/14/85 Henderson 08/06/83 No
811 Deblanc, David vy 01/15/56 B/W = 10/18/85 Liberty 02/19/83 Yes
812 Bennett, Baby, Ray, “05/20/61. B/W 11/18/85 Newton 04/23/85 No
813 Robinson, William 02/05/58 B/W 11/25/85 Harris 06/11/85 Yes
814 Rosales,» Mariano -.07/02/39° W/U 12/27/85 Harris 03/30/85 No
| 815 “08/16/52. W/U 01/07/86 Parker 04/05/84 Yes
f 816 01/06/64 B/W 01/20/86 Collin 09/21/85 No
"04/24/49 H/B 02/11/86 Madison “06/03/85 Yes
11/15/56 B/W 02/28/86 Williamson -14/17/83. Yes
i 09/27/63 :.W/*- 02/28/86 Leon 09/15/85 Yes
t 07/12/51 W/H . 03/11/86 Galveston 11/10/82 No
03/17/61 W/W 03/21/86 Montgomery 07/01/85 Yes
*,06/17/53 W/W. 04/08/86 Randall 11/11/85 No
03/22/50 W/W 04/30/86 Zapata 09/01/85 No
L 10/19/60. H/H 05/09/86 Jefferson 02/03/86 Yes
He 06/25/59... W/W 05/27/86 Brazos 10/12/79 No
ir » 02/26/62. W/W. 06/03/86 Tarrant 12/04/83 No
ie 06/26/86 Dallas 11/16/85 Yes
07/03/86 Harris 07/06/85 No
07/08/86 Tarrant 06/20/85 No
07/24/86 Harris 06/04/85 No
09/02/86 Taylor 05/17/86 No
09/03/86 McLennan 12/10/85 Yes
09/18/86 Victoria 09/18/86 No
; 09/18/86 . Harris 12/19/85 No
; Barefield, John 09/26/86 Harris 04/21/86 No
\ 845 Rivera, Angel, 10/01/86 £1 Paso 10/15/84 No
. 846  Drinkard, Richard 10/16/86 Harris 11/15/85 No
be 847 Montoya, Irineo 10/20/86 Cameron 11/17/85 No
I “849 Teague, Delbert 11/11/86 Tarrant 04/28/85 Yes
i “850 Johnson, Dorsie 03/10/67: 11/20/86 Scurry 03/23/86 No
851 Riley, Michael 05/09/58 *: 11/25/86 Wood 02/01/86 Yes
853 Boyle, Benjamin 07/22/43, 12/05/86 Potter 10/15/85 No
854 Cockrum, John 12/28/59. “W/W. 12/09/86 Bowie 05/29/86 No
i 855 Baldree, Ernest 03/27/42 W/* 12/10/86 Navarro 08/22/86 Yes
| ~ 856 Washington, Willie 01/12/59. “.B/U 12/11/86 Harris 12/18/85 Yes
ios 857 Sattiewhite, Vernon 09/01/55. B/B 12/16/86 Bexar 06/19/85 Yes
: 859 Moreno, Jose 04/13/67 H/U 01/14/87 Bexar 01/22/86 No
i 860 Tennard, Robert 11/15/62, B/B 01/15/87 Harris 08/22/85 Yes
bog 861 Elliott, John 03/25/60 H/H 01/20/87 Travis 06/13/86 Yes
862 Long, David 07/15/53 ‘W/W 02/17/87 Dallas 09/27/86 No
863 Banda, Esequel » 12/19/63 H/W 03/25/87 Hamilton 08/03/86 Yes
864 Gunter, James 02/28/65 W/W 03/31/87 Harris 02/22/86 No

PAGE 4
“Lewis, David
Richardson, James
Mooney, Nelson
Thomas, Kenneth
. Allridge, James
First, Kenneth
Norris, Michael
McFadden, Jerry
Jacobs,. Bruce
Lewis, Andre
Draughon, Martin
Goodwin, Alvin
Napier, Carl
Willis, Ernest
Jones, Richard
Washington, Terry
.Nobles, Jonathan
“Roberson, Brian
Boggess, Clifford
- Crane, Alvin
McGowen, Roger.
)Richards,. Michael
“Boyd, Charles —~
Stoker, Davi
‘Blackmon, Ri
Turner, Jess
Wilkens, James
“Johnson, Eddie

Brimage, Richard

“Delk, Monty
Harris, Kenneth
Joiner, Orien
McBride, Michael
“Vuong, Hai Hai
Earhart, James
Cole, Ted

Valdez, Alberto
De La Cruz, Jose
Kemp, Emanuel
Rabbani, Syed
Johnson, Gary
Goss, Cornelius
Nelson, Marlin .
Behringer, Earl
Richardson, Damon
Lockhart, Michael
Miniel, Peter
Clayton, James

05/31/65
09/07/67
08/19/55
02/24/61
11/14/62
01/12/60
04/18/58
03/21/48

© 10/13/46

09/22/66
08/31/63
12/27/63
10/09/45
09/17/45
04/09/60
09/12/63
08/27/61
10/08/63
06/11/65
05/06/58

, 12/23/63

08/24/59
08/17/59
01/25/59
11/21/57
06/07/60
07/20/61
07/31/52
12/05/55
02/24/67
08/08/62

“10/27/49,

01/03/62
09/20/55
04/29/43
07/27/56
08/29/55
04/26/68
09/19/65
06/12/65
10/17/50
05/25/61
07/13/68
01/03/64
12/22/63
09/30/60
06/23/64
11/30/66

B/W
w/u
B/*
B/W
w/w
B/*
w/w
w/U
B/W
W/H
w/w
w/u
w/w
W/W
B/W
w/w
B/W
w/w
w/U
B/U
B/U
B/W
w/w
w/w
w/U
W/W
B/W
w/U
w/w
B/U
w/w
w/w
0/0
w/w
w/U
H/U
H/U

B/*

0/0
w/w
B/*
w/*

w/w

B/B
w/U
H/W
B/W

04/15/87
05/01/87
05/07/87
05/14/87
06/09/87
06/10/87
06/25/87
07/15/87
07/20/87
07/30/87

07/31/87

08/10/87
08/26/87
08/28/87
08/31/87
09/28/87
10/16/87
10/22/87
10/27/87
11/13/87
11/18/87
11/20/87
12/03/87
12/07/87
12/07/87
01/12/88
02/19/88
04/19/88
04/20/88
05/11/88
05/13/88
05/26/88
05/26/88
05/27/88
05/27/88
06/08/88
06/16/88
06/16/88
07/06/88
07/25/88
08/19/88
08/26/88
09/25/88
09/27/88
10/07/88
10/26/88
11/09/88
11/14/88

Navarro
Liberty
Dallas
Tarrant
Lubbock
Harris
Bell
Dallas
Dallas
Harris

Montgomery

Harris
Pecos _
Tarrant
Brazos
Travis
Dallas
Clay
Denton
Harris
Harris
Dallas
Hale
Shelby
Harris
Smith
Aransas
Kleberg
Anderson
Harris
Lubbock
Lubbock.
Jefferson
Lee

Tom Green
Nueces
Nueces
Tarrant
Harris
Walker
Dallas
Harris
Tarrant
Taylor
Bexar
Harris
Taylor

Angelina .

02/04/85 .
05/30/86. Yes *
11/12/86 s
05/05/

41/30/86.

“02/20/86 -
06/11/86

01/15/87
09/13/86
08/30/86
07/23/86 Yes
03/28/87. No
03/11/86
08/18/86 Yes
04/13/87 Yes
11/09/86. No
03/28/87 Unk
02/10/86 No
12/27/86 Yes
09/29/87 No
10/05/87 Yes
11/29/86 No
06/07/86 No
12/17/86 No
10/21/85 No
12/07/86 No
05/22/87 No
12/17/87 Yes
09/09/87 Yes
06/01/87 Yes
05/28/87 Yes
11/01/87 No *
04/30/86 No
05/29/87 Yes
08/25/87 No
09/14/86 No
09/10/87 No
03/22/88 No
05/09/86 No (
09/17/87 No
DATE PRIOR

{
|

"NAME DOB *RACE REC'D COUNTY OF CRIME . TDCJ-ID
Newton, Francis 04/12/65 B/B 11/17/88 Harris 04/07/87 No
Narvaiz, Leopoldo 03/13/68 H/W 11/22/88 Bexar 04/15/88 No
Cantu, Domingo 06/07/68 H/W 12/22/88 Dallas 06/25/88 Yes
Butler, Steven 04/05/62 B/U 12/22/88 Harris 08/27/86: Yes
Amos, Bernard 12/22/61 B/B 12/19/88 Dallas 01/14/88 Yes
Cooks, Vincent 07/26/64 B/W 12/22/88 Dallas 02/26/88 Yes
Rivers, Warrent 03/31/67. B/U 12/29/88 Harris 05/03/87 No
Gribble, Timothy 08/27/63 W/W 01/11/89 Galveston 09/09/87 Yes
Hicks, David 01/15/62 B/B 02/07/89 Freestone 04/25/88 Yes
Sterling, Gary 07/25/67. B/W .02/09/89 Navarro 05/13/88 No
Vega, Martin 10/17/46 -W/U 02/16/89 Caldwell 07/27/85 Yes
Moody, John 10/17/52. W/W 03/06/89 Taylor “ -. 07/03/88 Yes
Fuller, Tyrone 08/01/63 B/W 04/01/89 Lamar -01/20/88- Yes
Barnes, Willis 08/13/48 B/U . 04/04/89- Harris 02/11/88 Yes
Rudd, Emerson 08/09/70 B/B®::04/13/89.-Dallas . 09/02/88 No
Caldwell, Jeffery 03/01/63 ~B/B 04/28/89 Dallas 07/25/88 Yes
Hughes, Preston 12/24/65 .B/B 05/17/89 Harris 09/26/88 No
Adanandus, Dwight 02/19/56 B/U 05/24/89 Bexar 01/28/88 Yes
‘Mines, Charles 08/10/49. B/U. 06/08/89 Ellis 05/07/88 No
Rousséau, Anibal 11/27/40. -H/U... 07/11/89 Harris 10/27/88 Yes
Blue, Michael. 02/22/62. B/U. .07/13/89 Liberty 01/21/88 Yes
Medina, ‘Javier 06/17/69... H/U.-.07/27/89 Dallas 12/13/88 No
“Madison, Deryl 08/29/58. -B/U=09/13/89 Harris 04/30/88 Yes
Miller, Garry 11/02/67. W/W’ 09/22/89 Jones 11/11/88 Unk

~ Alexander, Guy 08/20/59. -w/U. 09/27/89 Harris 01/24/89 No
Burks, John 01/18/56. :B/Hi*: 10/05/89 McLennan 01/20/89 Yes
Cardenas, Francisco 04/30/65. H/W<°10/05/89. Fort Bend 03/21/88 No
Tucker, Jeffery 01/01/60 “W/W.:.10/19/89 Parker 07/11/88 Yes
Smith, Charles 02/24/66 W/W. 11/01/89 Pecos 08/20/88 No
Cruz, Oliver 05/18/67) - H/W <-11/10/89 Bexar 08/07/88 No
Jennings; Robert 12/03/57 B/B 11/11/89 Harris 07/19/88 Yes
Wilson, Jackie 02/12/67 H/W..°.11/21/89 Dallas 11/30/88 No
Garcia, Fernando 04/26/61 H/H 12/20/89 Dallas 08/30/87 Yes
Jones, Raymond 01/01/60 B/W, -12/21/89 Jefferson 06/17/88 Yes
Chappell, William 09/26/36 W/U> 01/23/90 Tarrant 05/03/88 No
Hill, Mack 08/12/53 W/W -»01/28/90'. Lubbock 03/03/87 Yes
Hernandez, Juan 10/02/64 H/H.~ 02/06/90. Nueces 03/29/88 Yes
McFarland, Frank 10/07/63 W/W. 02/12/90 . Tarrant 02/01/88 No
Fuller, Aaron 08/26/67 W/W 02/15/90 Dawson 03/18/89 Yes

965 Riddle, Granville 06/17/69 W/W 02/22/90 Potter 10/09/88 Yes
966 Bradford, Gayland 07/18/68 B/W 02/23/90 Dallas 12/29/88 Yes
967 Jenkins, Leo 10/12/57. W/W 03/02/90 Harris 08/29/88 Yes
968 Coleman, Clydell 10/01/36 B/B 03/01/90 McLennan 02/24/88 Yes
¥**969 Corwin, Daniel 09/13/58 W/W 04/06/90 Montgomery 02/15/87 Yes
970 Gutierrez, Jose - 10/14/60 H/W 04/27/90 Brazos 09/05/89 Yes
972 Camacho, Genaro 09/14/54 H/B 05/09/90 Brazos 05/28/88 No
973 Aldridge, Rulford 01/06/54. B/* 06/05/90 Harris 01/03/90 Yes
974 Smith, Roy 08/04/58 B/U 06/07/90 Harris 10/08/88 Yes
975. Patrick, Jessie 02/23/58 W/* 06/15/90 Dallas 07/08/89 Yes
976 Goble, Billie 09/09/48 W/W 06/14/90 McLennan 08/29/89 No
NAME

DATE

10/11/54. W/U.

Wilbarger

10/16/91

DOB *RACE REC'D COUNTY OF CRIME -TDCJ-1

Zimmerman, Kevin 05/17/61 W/W 06/19/90° Jefferson _ 10/23/87 No %
Hernandez, Adolph 09/01/50 H/H 06/28/90 Lubbock 09/30/88: Yes
Ogan, Craig 12/18/54 W/W 07/11/90 Harris 12/09/89 No
Jones, Claude 09/24/40 W/* 08/13/90 San Jacinto 11/14/89 ‘Yes
Hittle, Daniel 03/01/50 W/W 08/16/90 Dallas 11/15/89 No
Hood,;. Charles 08/20/69 w/* 09/11/90 Collin 11/01/89 No
Flores, Miguel 06/07/69 H/W 09/14/90 Hutchinson 06/29/89 No
Green, Ricky Lee » 12/27/60 W/W .10/05/90 Tarrant 12/27/86 No
Garcia, Hector - 05/10/61. _H/H’ -10/10/90 Hidalgo 08/25/89 No
Etheridge, Gary 01/03/64 W/W° 11/11/90 Brazoria - 02/02/90. Yes
Arnold, Jermarr 09/27/58  B/H 12/20/90 Nueces -07/15/83-. No
“Murphy, Ivan 01/10/65. W/* 01/24/91 Grayson “OE/09/89° Yes
Lookingbill, Robert ..07/22/65 W/W 02/21/91 Hidalgo, 12/05/89 ‘Yes
Robertson, Mark 05/28/68 02/27/91. Dallas 08/19/89 No
Bunt ion,= Carl 03/30/44. 03/06/91 Gillespie 06/27/90 Yes
Clark, Jack 07/20/63 : 03/19/91 Lubbock 10/16/89 -No
05/05/72 04/30/91 Tarrant 06/14/89 No
04/08/55 05/10/91 Tarrant 12/24/87 Yes
03/22/68 05/17/91. Lubbock 11/29/89 Yes

12/05/67 * 06/04/91 Taylor 06/11/90 Yes ¢ :
~, 05/26/70 06/04/91 Randall 04/26/90 No
08/23/46 ~ 06/10/91. Newton 10/06/90 No
02/04 06/13/91 Harris 09/05/90 Yes
11/0 06/21/91 Tarrant 12/20/89 No
03/04, 06/28/91 Collin 12/10/90 No
05/10/67 07/26/91 Tarrant 04/07/90 No
: 99900 Staley, Steven - 07/30/6. 08/02/91 Tarrant 10/14/89 No
“999007.." = Smith, “Laroyce 04/23/74 07/07/91 Dallas 01/07/91 No
--999008.. San Miguel, Jessy. 09/05/71 08/21/91 Dallas 01/26/91 No
Chambers, “Tony 12/20/67. 09/06/91 Smith 11/19/90 No
Summers, Gregory 03/14/58. 09/26/91 Denton 06/11/90 No
Wilkerson, “Ponchai 07/15/74 11/12/91 Harris 11/28/90 No
Kelly, Alvin 03/14/51 11/14/91 Gregg 04/30/84 Yes
Casey, Gerald 01/15/55.) 11/15/91 Montgomery 07/10/89 Yes
Heiselbetz, Earl 04/01/51. ~ 11/22/91 Sabine 05/30/91 No
Goff, David ‘ 01/09/60: 12/27/91 Tarrant 09/01/90 Yes
Nelson, Billy. 11/15/68 12/31/91 Howard 02/23/91 No
Garcia, Gustavo 09/27/72 01/08/92 Collin 12/09/90 No
Jones, Shelton 11/24/67 01/09/92 Harris 04/07/91 No
Wheatfall, Daryl 12/20/65 B/* 01/28/92 Harris 12/13/90. Yes
Rey, Johnny 04/27/73 H/W 02/11/92 Randall 05/11/90 No
Dinkins, Richard 09/29/62 W/* 02/26/92 Jefferson 09/12/90 No
Bruce, Kenneth 10/21/71 ‘B/W 02/28/92. Collin 12/10/90 No
Clark, Kenneth * 09/17/55 B/W 03/17/92 Tarrant 05/10/91 Yes
Hines, Bobby “07/07/72 W/W 04/16/92 Dallas 10/20/91. Yes
Martinez, Miguel 08/06/73 H/* 05/01/92 Webb 01/18/91 No
Alba; John 06/26/55 H/H 05/08/92 Collin 08/05/91 No
Rodriguez,- Steve: 10/01/66: H/W. 05/08/92 Bexar 07/04/90 Yes
999029 Vaughn, Roger. 05/28/92 Yes
i
i
I
i
i
I
t
i

"PAGE 7

ba Je Fis | : DATE . PRIOR

EX # NAME DOB *RACE_REG'D COUNTY OF CRIME. TDCJ-ID
999030, Lim, Kim Ly 04/05/71 0/U 06/22/92 Harris -05/29/91 No
999034 Goodman, Spencer 10/28/68 W/W 07/07/92 Fort Bend 07/02/91: Yes
999032 Campbell, Robert 09/10/72 B/U 07/10/92 Harris 01/03/91 . Yes
999033 Smith, Robert 11/11/67 B/U 07/10/92 Harris 05/15/90 ‘Yes
999034 Van Alstyne, Gregory 01/29/66 B/W. 07/13/92 Potter 04/17/90 Yes
999035 Mason, Thomas 12/31/51 W/W 07/14/92 Smith 10/02/91 No
999036 Davis, Brian 08/28/68 W/W 07/17/92 Harris 08/10/91 Yes
“999037 Hopper, George * 10/06/55 W/U .07/23/92 Dallas 10/04/83. No
- 999038 Morris, Lorenzo “09/25/52 B/U 08/03/92 Harris 08/05/90 Yes
999039 McGinnis, Glen 01/11/73 B/W 08/03/92 Montgomery - 08/01/90 No.
999040 Mason, William 01/30/54 W/W 08/12/92 Harris -01/17/91- Yes
999041 Willingham, Cameron 01/09/68 W/W 08/12/92 Navarro “£Z/23/94: No
999042 Greer, Randolph 05/13/73, B/U 09/10/92 Harris . 06/27/91 No
999043. Briseno, Jose 05/04/57 H/W 09/11/92 Webb 01/05/91 Yes
999044 Broxton, Eugene 02/27/55 B/U 09/18/92 Harris 05/16/91 Yes
999045 Colella, Paul 09/27/68 W/W 09/22/92 Cameron 09/12/91 No
: McFarland, George 08/25/60 B/U 09/29/92 Harris 09/12/91 Yes
Dowthitt, Dennis 06/20/45 W/W. 10/30/92 Montgomery 06/13/90 No
Goynes; Theodore 11/27/52 B/B 12/02/92 Harris 10/07/90 Yes
Rhoade'’s ; Rick > ~ 05/10/64 W/W 12/31/92 Harris 09/13/91 Yes
Ransom, Cedric.” 08/18/73, B/W. 01/11/93° Tarrant 12/07/91 No
. Wood, Davi 06/20/57, W/W © 01/14/93 E1 Paso 05/30/87 Yes
Barley, Nathaniel 09/27/64. B/A 03/03/93 Harris 05/14/91 Yes
McCosky,. Jamie 10/05/64 W/W, 03/05/93 Harris 11/13/91 Yes
: Sonnier, Derrick 10/26/67. B/* 03/05/93" Harris 09/16/91 No
999055 McDuff, Kenneth 03/21/46. W/W 03/09/93 Harris 03/01/92 Yes
999056 Rachal, Rodney 04/29/70°  B/U 03/11/93 Harris 10/25/90 No
999057 Carr, Darrell 10/07/69 B/H. 03/11/93 Harris 07/23/91 Yes
999059 Chiles, Theron 10/14/66 W/W 04/08/93 Jasper 08/10/92 No
999060 Matchett, Farley 11/19/62 B/U 04/30/93. Harris 07/12/91 No
999061 Cruz, Javier 09/13/57 H/* 04/30/93 Bexar 06/07/91 Yes
999062 Ramos, Robert 05/23/54 H/* 05/06/93 Hidalgo 02/07/92 No
999063 Gurule, Martin 11/07/69 W/* | 07/01/93 Nueces 10/12/92 No
999064 Broussard, Windell 03/05/60 B/* 07/02/93 Jefferson 04/24/92 Yes
999065 Patterson, Kelsey 03/24/54 B/* 07/07/93 Anderson 09/29/92 No
999066 Lawton, Stacey 07/10/69 B/W 07/23/93 . Smith 12/24/92 Yes
999067 Cockrell, Timothy 12/14/63 B/W 08/03/93 Bexar 08/09/92 Yes
999068 Green, Dominique 05/13/74 = .B/U 08/17/93 Harris 10/14/92 No
999069 Howard, Ronald 07/22/73, B/W 08/25/93 | Travis 04/11/92 No
999070 Miles, Laquan 03/12/74 B/* 08/26/93 McLennan 08/23/91 No
999071 Dillingham, Jeffery 03/06/73 W/W 08/31/93 Tarrant 03/12/92 No
999072 Knight, Patrick 01/12/68 W/W 09/22/93 Randall 08/27/91 No
999073 Green, Edward 03/05/74 'B/* 10/08/93 Harris 08/31/92 No
999074 Garza, Juan * 11/18/56 H/* 10/13/93 Cameron *** ter pee / Re No
999075 Ford, Tony 06/19/73 B/H 10/14/93 El Paso 12/18/91 No
‘999076 Moody, Stephen 07/16/57 W/U 10/22/93 Harris 10/19/91 Yes
999077 Matamoros, John 05/18/63 H/U 10/29/93 Harris 07/19/90 Yes
999078 Titsworth, Timothy 03/08/72 w/w 11/02/93 Randall 07/23/93 Yes
999079 Wolfe, Bryan 06/07/60 B/B 11/02/93 Jefferson 02/15/92 No
)

999080 Curry, Alva 03/22/69 B/H 11/03/93 Travis 10/16/91 No
PAGE 8
DATE PRIOR
EX# NAME DOB *RACE REC'D COUNTY OF GRIME TDCJ-ID
999081 Alvarado, Steven 08/11/74 H/* 11/10/93 El Paso _ 09/22/91 No
999082 Walker, Tony 04/15/56 B/* 11/19/93 Morris 05/23/92. Yes
999083 Lagrone, Edward 03/03/57. B/* 12/07/93 Tarrant 05/30/91 Yes
999084 Anderson, Robert 05/29/66 W/W 12/07/93 Potter 06/09/92 "No
999085 Trottie, Willie 09/08/69 B/* 12/15/93 Harris 05/03/93 No
999086 Shannon, Willie 06/12/73 B/H 12/15/93 Harris 07/19/92 No
999087 Vickers, Billy 07/30/45 W/W 01/04/94 Collin 03/12/93 Yes
999088 Smith, Clyde 08/31/73 B/U 01/14/94 Harris 02/06/92 No
999089 Martinez, Johnny .*~ 11/20/72 H/W 01/28/94 Nueces 07/15/93 No
999090 Gallamore, Sam 02/15/71 w/* - 02/14/94 Comal - 03/29/92 No.
999091 Carter, Robert 03/07/66 B/U 02/23/94 Harris -06/24/81- No
999092 Lane, Doil 04/15/61 W/H 02/25/94 Hays 03/20/80 No
999093 Cantu, Peter 05/27/75 H/* 03/18/94 Harris 06/24/93 No
999094 Cook, Bobby 12/03/61 W/W 04/26/94 Henderson 02/06/93 Yes
999095 Clark, James 05/13/68 W/W. 05/04/94 Denton 06/07/93 Yes
999096 Soriano, Oswaldo 01/26/75 H/W 05/06/94 Randall 11/17/92 No
999097 Lewis, Ricky 07/21/62 B/W 05/06/94 Smith 09/17/90 Yes
999098 Wilson, Marvin 01/05/58 B/B 05/09/94 Jefferson 11/10/92 Yes
999099 Tigner, Gerald 12/27/72 B/* 05/24/94 McLennan 08/31/93 No
999100° Flores, Andrew 08/09/72 H/H 05/25/94 Bexar 07/26/93 No
999101 Hopkins, Bobby “02/23/67 B/* 06/01/94, Johnson 07/31/93 No
999102 Rivera, Jose 12/23/62. H/H 06/02/94. Cameron 07/09/93. Yes
999103 Thacker, Charles 09/18/68. W/W 06/03/94. Harris 04/07/93 Yes
999104 Rowell, Robert 04/08/55 W/U- 06/03/94 Harris 05/10/93 Yes
999105 Henderson, James 03/12/73 B/U ~ 06/08/94 Bowie 10/29/93 No
999106 Doughtie, Jeffery 10/03/61 W/* 06/10/94 Nueces 08/02/93 Yes
999107 Dickerson, James 09/07/73 W/U 06/24/94 Harris 06/30/93 No
999108 Eldridge, Gerald 03/04/64 B/* 06/24/94 Harris 01/04/93 Yes
999109 Raby, Charles 03/22/70 W/W 06/30/94 Harris 10/15/92 Yes
999110 Brown;: Arthur 08/14/70 B/* 06/30/94. Harris 06/20/92 No
999141 Pondexter, Willie 03/05/74 B/W 07/25/94 Bowie 10/29/93 No
999112 Taylor, Elkie 12/14/61 B/B 07/26/94 Tarrant 04/02/93. Yes
999113 Aldrich, Donald 11/06/64 W/W 08/10/94 Smith 11/30/93 Yes
999114 Walbey, Gaylon 07/08/74 B/B 08/12/94 Galveston 05/04/93 No
999115 Coulson, Robert 03/11/68 W/* 08/13/94 Harris 41/13/92 No
999116 Smith, Richard 01/12/56. wW/U 09/02/94 Harris 12/03/92 Yes
999117 Morris, Kenneth 03/04/71 B/W 09/02/94 Harris 05/01/91 Yes
999118 Chandler, David 12/19/52 W/U 09/16/94 Mont. ,AL*** wk [ek [eK No
999119 Reeves, Reginald 04/21/74 B/W 10/07/94 Red River 09/09/93 No
999120 Lave, Joseph 10/17/64 B/* 10/07/94 Dallas 11/25/92 No
9991214 Massey, Jason 01/07/73. W/* 10/14/94 Ellis 07/27/93 No
999122 Blair, Michael 06/10/70 O/W 10/18/94 Midland 09/05/93 Yes
999123 Guy, Joe 10/05/71 B/W 10/26/94 Hale 03/25/93 Yes
999124 Styron, Ronford - 08/23/69 W/W 10/28/94 Liberty 10/26/93 No
999125 Villarreal, Raul 09/25/75 H/* 11/03/94 Harris 06/24/93 No
999126 Moore, Michael 09/16/63 W/U 11/04/94 Coryell 02/26/94 No
999127 Graves, Anthony 08/29/65 B/* 11/07/94 Brazoria 08/18/92 Yes
999128 Monterrubio, Jose 08/26/76 H/H 11/09/94 Cameron 09/05/93 No
999129 Henry, Robert 09/26/62 w/ 11/15/94 San Patricio
999130 Tamayo, Edgar 07/22/67 H/W 11/18/94 Harris 01/31/94 No
PAGE
DATE PRIOR
EX# NAME DOB *RACE REC'D COUNTY OF CRIME TDCJ—I)
999131 O'Brien, Derrick 04/05/75 = B/* 11/18/94 Harris 06/24/93 No
999132 Perez, Efrain 11/19/75 A/ 12/09/94 Harris * 06/24/93
999133 Jones, T.J. 11/01/76 B/ 12/16/94 Gregg 02/02/94
999134 Medellin, Jose 03/04/75 oH 01/06/95 Harris 06/24/93
999135 Johnson, Lonnie 03/19/63 B/ 01/27/95 Harris 08/15/90
999136 Dudley, Marion Bulter 05/13/72 B/ 02/10/95 Harris 06/20/92 No
999137 Wardlow, Billy Joe 11/25/74 W/W 02/13/95 Morris 06/14/93 No
999138 Dixon, Tony - 11/07/76 B/W (03/03/95 Harris 05/15/94 No
999139 Johnson, Kia ~~ 12/23/64 = B/ 03/17/95 Bexar 10/29/93 Yes
999140 Saritillo, Jose. 03/08/62 H/ 03/14/95 Kerr 08/22/93 No
999141 Beazley, Napoleon 08/05/76 B/ 03/21/95 Smith 04/19/94 >
999142 Demery, Gregory Wayne 12/06/58 B/ 03/31/95 Harris 08/15/92
999143 Skinner, Henry Watkins04/04/62  wW/ 03/31/95 Tarrant 12/31/93
999144 Sheppard, Erica Yvonne 9/01/73 B/? 04/25/95 Harris 06/30/93
999145 ‘Ruiz, Roland 07/04/72 H/ 05/04/95 Bexar 07/14/92
999146 Dickens, Justin Wiley 07/28/76 w/ 05/17/95 Randall 03/12/94
999147 Jones, George Alarick 04/10/74 B/ 05/18/95 Dallas 04/13/93
999148 Henderson, Cathy 12/27/56 w/ 06/01/95 Travis 01/21/94
999149 Prieto, Arnold 06/09/73 H/ 06/02/95 Bexar 09/11/93
999150 McGinn, Ricky 03/11/57 w/ 06/09/95 Brown 05/22/93
999151 Blue, Carl "01/09/65 B/ 06/14/95 Brazos 08/19/94
999152 King, Calvin Eugene 10/31/53 B/ 06/30/95
999153 Duncan, Richard 05/19/42 w/ 07/12/95
999154 Williams, Jeffrey 10/15/71 w/ 07/14/95
999155 Bernal, Johnnie 08/20/76 H/ 07/12/95
999156 Ortiz, Oscar 05/03/76 H/ 07/19/95
999157 Baker, Stanley 12/03/66 w/ 08/01/95
999158 Nuncio, Paul 10/20/68 H/ 08/02/95
999159 Varelas, Santiago 07/23/75 = H/ 08/10/95
999160 — Amador, John 05/28/75 H/ 08/11/95

*INMATE/VICTIM RACE (Ex: W/*) denotes more than 1 victim.

*k#969 Corwin, Daniel convicted under serial killer statute.

and 10/13/87.

Other crime dates are 07/10/87

*k*Federal death row inmate being housed by ,TDCJ-ID under contract with Federal Bureau of
Prisons.
INFORMATION

EXECUTION

TEXAS DEPARTMENT OF CRIMINAL JUSTICE
_ INSTITUTIONAL DIVISION
PROCEDURES FOR THE EXECUTION OF INMATES SENTENCED TO DEATH

Male inmates sentenced to death will be housed at the Ellis I Unit of the Texas
Department of Criminal Justice Institutional Division located approximately 16
miles northeast of Huntsville, Texas.“ Female inmates sentenced to ‘death will be
housed at the Mountain View Unit located in Gatesville, Texas. :

*Visitors at the Ellis I/Mountain View Units:
Persons provided for in Vernon's Ann. C.C.P., Article 43,17.

MEDIA - Press interviews of condemned prisoners shall be schieduled by the Public
Information Office and conducted at the Ellis I Unit and Mountain View Unit each
Wednesday during the hours of 9:00 — 11:00 a.m. Any media requesting an
interview with death row inmates at Ellis I or Mountain View should submit names
to the Public Information Office prior to the Wednesday interview date.
Requests will not be accepted at the Ellis I/Mountain View Units on the day of
the interview. The number of inmates requested to be interviewed should be kept
within reason.

An inmate scheduled for execution shall be transported from the Ellis I/Mountain
View Unit to the. Huntsville Unit prior to the scheduled execution.
Transportation arrangements shall be known only to the unit Wardens involved,
and no public announcement to either the exact time, method, or route of
transfer shall be made. The Director's Office and the Public Information Office
will be notified immediately after the inmate arrives at the Huntsville Unit.

During transportation and after arrival at the Huntsville Unit, the inmate shall
be constantly observed and supervised by security personnel.

The inmate may have the following visitors at the Huntsville Unit: -

T,D.C.J. Institutional Division Chaplain(s)

Minister(s)

Attorney(s)

Family member(s) and friend(s) on list of approved visitors. ="

All visits must be approved by the Warden. With the exception of Chaplain's
visits, all visits will be terminated by 6:00 p.m., on the day immediately prior
to the execution date. No media visits will be allowed at the Huntsville Unit.
The last meal will be served at approximately 6:30 ~ 7:00 p.m.

Prior to midnight, the inmate will shower and dress in clean clothes.

The Huntsville Unit Warden's Office will serve as the communications command
post and only operations personnel will be allowed entry to this area. ALL
other individuals, including witnesses to the execution, will assemble at
approximately 11:45 p.m. in the lounge adjacent to the visiting room. All
Necessary arrangements to carry out the execution shall be completed at a
predetermined time. Shortly after midnight, the door will be unlocked, and the
inmate will be removed, (from the holding cell.

The inmate will be taken from the cell ‘area into the execution chamber and
secured to a gurney. A medically trained individual (not to be identified)
shall insert an intravenous catheter into the condemned person's arms and cause
a neutral saline solution to flow.

At a predetermined time, the witnesses shall be escorted to the execution
chamber. Witnesses shall include:

Persons proved for in Vernon's Ann. C.C.P., Article 43.20. i

MEDIA ~ One Texas bureau representative designated by the Associated Press, one
Texas bureau representative designated by the United Press International, one
representative of the Huntsville Item, and one representative each from
established separate rosters of the Texas print and broadcast media will be
admitted to the execution chamber as witnesses, provided those designated agree
to meet with all media representatives present immediately subsequent to the
execution. No recording devices, either audio'or video, shall be permitted
either in the unit or the execution chamber.

The Warden shall then allow the condemned person to make a last statement. Upon
completion of the statement, if any, the Warden shall ‘state, "We are ready." At
this time, the designee(s) of the Director, shall. induce by syringe, substance
and/or, substances necessary to cause death. This individual(s) shall be
visually separated from the execution chamber by a wall and locked door, and-
shall also not be identified.

The inmate will be pronounced dead. An inquest will be held by a Walker County
Justice of the Peace. The physician, as well as any chaplain accompanying the
inmate in the execution chamber, shall stand with any other witnesses present.

After the inmate is pronounced dead and the J.P.'s inquest is finished, the body
shall be immediately removed from the execution chamber, taken to ar awaiting
ambulance, and delivered to a local funeral home. Arrangements for tHe ‘body, to
be concluded prior to the execution, shall be made per Vernon's Ann. C.C.P.,
Article 43.25.

The Director of the Texas Department of Criminal Justice Institutional Division
in accordance with Article 42.23 shall return the death warrant and certificate
with a statement of any such act and his proceedings endorsed thereon, together
with a statement showing what disposition was made of the dead body of the
convict, to the clerk of the court in which the sentence was passed.
DEATH ROW INFORMATION

Death Row is a regular cell block on the Ellis I Unit. of the Texas Department of
Criminal Justice Institutional Division. It was moved from the Huntsville Unit
in 1965. Each cell bn Death Row is 5 ft. X 9 ft. Death Row inmates receive a
regular diet, have access to television, magazines, books and legal materials.
The same mail rules apply to them %s to the general population. Inmates on
Death Row do not have regular TDCJ-ID numbers, but have special Death Row
numbers.

Death Row was located in the East Building of the Huntsville Unit from 1928 to
1952. Two men have escaped from death row. The electric chair, "Old Sparky,"
was located behind the chapel.

“ é
From 1952 until 1965, Death Row and the electric chair were located in a special
building by the East Wall of the Huntsville Unit.

One of the most notorious inmates to be executed was Raymond Hamilton.. He was
sentenced from Walker County and executed on May 10, 1935 for murder. He was a
member of the "Bonnie and Clyde" gang.

In 1974, the State of Texas amended it's Criminal Code, adopting death by lethal
injection as the new method of execution. On December 7, 1982, the first inmate
in Texas was executed using the lethal injection method. (Charlie Brooks)

There has never been a woman executed by the State of Texas,
Lethal injection consists of:,

Pancuronium Bromide (muscle relaxant)

Potassium Chloride (stops the heart beat)

Sodium Thiopental (lethal. dose)
*As of the Spring of 1993 there were 2,729 inmates on death row across the
nation.

White : 1,381 50.60%
Black 1,072 39.28%
Hispanic 193 7.07%
Native American 48 1.76%
Asian 20 «73%
Unknown 15 +55%
Male 2,687 98.46%
Female 42 1.54%

States with the largest number of prisoners on death row are Florida, Texas, and
California. %
Fifteeri “states do not have Capital Punishment, they are: Alaska, District of
Columbia, Hawaii, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, New
York, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin.

*Source: ‘Death Row U;S.A." published by. the NAACP.
METHODS OF EXECUTION

Alabama.. dee e eee eeeececceesess Electrocution
Arizona... eee cceccccoccnccecceesL@thal Injection
ArkansaS...eee: oeeeeeeeeLethal Injection
California «Lethal Injection
Colorado..... «Lethal Injection
Connecticut.... seeeesElectrocution
Delaware. sesccccsecceseecece seeeeeeLethal Injecgion
Florida.. -Electrocution
Georgia... .«Electrocution

or
or
or

or

or

or

Idaho.... «Lethal Injection
Illinois. «Lethal Injection
Indiana.. -Electrocution
Kentucky. -Electrocution
Louisiana. «Lethal Injection
Maryland.... -Gas Chamber
Mississippi... eee e cee eseeceeeveeseeess sLethal Injection
Missouri..... Faceees «Lethal Injection
Montana.. «Lethal Injection

+Electrocution
«Lethal Injection

Nebraska....
Nevada...
New Jersey...

New Mexico....
North Carolina
Ohio.wssceeees
Oklahoma.....
Oregon. sssecsesencveecees
Pennsylvania....
South Carolina
South Dakota.......
Tennessee..
Texas....-
Utah...
Virginia.
Washington..,...
U.S. Military.
U.S. Government..

«Lethal Injection
-Lethal Injection
«Electrocution

«Lethal Injection
«Lethal Injection
«Lethal Injection
+Electrocution

«Lethal Injection
«Electrocution

«Lethal Injection
«+.Lethal Injection
Electrocution

Lethal Injection
Lethal Injection
Lethal Injection

«Lethal Injection

or

or

or

or

Gas Chamber
Electrocution
Gas Chamber

Hanging
Firing Squad

Gas Chamber

Hanging

Gas Chamber

Firing Squad

Hanging
_ MEXICAN NATIONALS EXECUTED IN TEXAS

Name County , Crime Date Executed
Agapito Rueda _El Paso ’ Murder 01/09/26
Emeliano Benevidez Schletther Murder 08/08/42
Ramon Rodriquez Dallas Murder 03/25/93 °

CAPITAL PUNISHMENT INFORMATION

The electric chair, which was used in Texas from 1924 through 1977, was the

original chair built from oak in 1923-24. ° i
The electric chair was first used on February 9, 1924. Five men died on that
date in the following order: ~

Charles Reynolds Black Red River. County Murder

Ewell Morris /. Black Liberty County Murder

George Washington Black Newton County Murder

Mack Matthew Black Tyler County Murder

Melvin Johnson Black Liberty County Murder

Between February, 1924 and July, 1964, a total of 506 men and women were placed
on Death Row in Texas; of those, 361 died in the electric chair.

Black 229 Murder 259
White 108 Rape : 97
Mexican American 23 Armed Robbery 5
TOTAL 364 TOTAL ~* 361

The last man to die in the electric chair in Texas was Joseph Johnson (Black
male, Harris County, Murder) on July 30, 1964. ‘ +

When capital punishment was declared "cruel and unusual punishment" by* the U.S.
Supreme Court on June 29,.1972, there-were 45 men on Death Row in Texas and 7 in
county jails with a death sentence. All of the sentences were commuted to life
sentences by the Governor of Texas, and Death Row was clear by March, 1973.

The Texas Legislature revised the Texas Penal Code effective January 1, 1974,
and once again, Texas courts began assessing the death penalty. The first man
placed on Death Row under the new statute in February, 1974 committed suicide on
July 1, 1974.

On August 29, 1977,, the method of execution in Texas was changed from the
electric chair to death by injection. Charlie Brooks Jr. was the first man to
be executed using this method on December 7, 1982.
DRUGS USED IN LETHAL INJECTION

SODIUM THIOPENTAL °$13.90 per kit
(approximately 2 kits per execution)

PANCURONIUM BROMIDE $ 8.32/amp
(approximately 5 amps per execution)

POTASSIUM CHLORIDE $ .21/amp
(approximately 10 amps per execution)

TOTAL APPROXIMATELY $71.50

i
TEXAS PENAL CODE, Acts 1992, 72nd Legislature, Chapter 12 effective January
1992. %

PC Sec. 19.03. Capital Murder. (a) A person commits an offense if he commits an
offense in which he intentionally or knowingly causes the death of an individual
and:

(1) the person murders a peace officer or fireman who is acting in
the lawful discharge of an official duty and who the person knows is a
peace officer or fireman; .

(2) the person intentionally commits the murder in the course of
committing or attempting to commit kidnapping, burglary, robbery,

. aggravated sexual assault, or arson;

(3) the person commits the murder for remuneration or the premise of
remuneration or employs another to commit the murder for remuneration
or the promise of .remuneration;

(4) the person commits the murder while escaping or attempting to escape
from the penal institution; =

(5) the person, while incarcerated in the penal institution, murders
another who is employed in the operation of the penal institution; or

(6) the person murders more than one person:

(a) during the same criminal transaction; or
(b) during different criminal transactions but the “murders are
committed pursuant to the same scheme or course of conduct.

Under the present law, a person convicted of capital murder may be sentenced to
one of two sentences — death or life imprisonment. (A person must serve at
least 35 calendar years of a life sentence.)

If the jury answers three questions with yes, the sentence is death. The
questions are:

(1) Did the defendant act intentionally and should he have known someone might
be killed?
(2) Is there a probability that the defendant would in the future commit
criminal acts of violence that would constitute a menace to society?

(3) Was the conduct of. the defendant in killing the deceased unreasonable in
response to the provocation, if any, of the deceased?
pt

CODE OF CRIMINAL PROCEDURE

Art. 43,14 — Execution of Convict

Whenever the sentence of death is pronounced against a convict, the sentence
shall be executed at any time before the hour of sunrise on the date set for
execution not less than thirty. days from the day of senténce, as the court may
adjudge, by intravenous injection of a substance or substances in a lethal
quantity sufficient to cause death and until such convict -is dead, such
execution procedure to be determined and supervised by the Director of the Texas
Department Criminal Justice.

Acts 1992, 72nd Leg., vol 3, p., 414, ch. 43.

Art. 43.15 .- Warrant of Execution

Whenever any person. is* sentenced to death, the clerk of the court in which the
sentence is pronounced, shall within ten days after sentence has been
pronounced, issue'a warrant under the seal of the court for the execution of the
sentence of death, which shall recite the fact of conviction, setting forth
specifically the offense, the judgement of the court, the time fixed for his

execution, and directed to the Director of the Department of Criminal Justice at-

Huntsville, Texas, commanding him to proceed, at the time and place named in the
sentence, to carry the same into execution, as provided in the preceding

Article, and shall deliver such warrant to the sheriff of the county in which °

such judgement of conviction was had, to be by him delivered to the said
Director of the Department of Criminal Justice, together with condemned person.
Acts 1992, 72nd Leg., vol. 3, p. 415, ch. 43.

Art 43.16 — Taken to Department of Criminal Justice

Immediately upon the receipt of such warrant, the sheriff shall transport such
condemned person to the Director of the Department of Criminal Justice and shall
deliver him and the warrant aforesaid into the hands of the Director of the
Department of Criminal Justice and shall take from the Director of the
Department of Criminal Justice his receipt for such warrant, which receipt the
sheriff shall return to the office of the clerk of the court where the judgement
of death was rendered. For his services, the sheriff shall be entitled to the
same compensation as is now allowed by law to sheriffs for removing or conveying
prisoners under the provisions of Section 4 of Article 1029 or 1030 of the Code
of Criminal Procedure of 1925, as amended. .

Acts 1992, 72nd Leg., vol 3, p. 415, ch. 43.

(
Art. 43.17 - Visitors

Upon the receipt of such condemned person by the Director of the Department of
Criminal Justice, he shall be confined therein until the time for his execution
arrives, and while so confined, all persons outside of said prison shall be
denied access to him?’ except his physician and lawyer, who shall be admitted to
see him when necessary to his health or for the transaction of business, and the
relatives, friends, and spiritual advsors of the condemned person; who shall be
admitted to see and converse with him at all proper times, under such reasonable
rules and regulations as may be made by the Board of Directors of the Department
of Criminal Justice.

Acts 1992, 72nd Leg., vol 3, p. 416, ch. 43.

Art. 43.23 -— Return of Director

When the execution of sentence is’ suspended or respited to another date, same
shall be noted on the warrant and on the arrival of such date, the Director of
the Department of Criminal Justice shall proceed with such execution; and in
case of death of any condemned person before the time for his execution arrives,
or if he should be pardoned or his sentence commuted by the Governor, no
execution shall be had; but in such cases, as well as when the sentence is
executed, the Director of the Department of Criminal Justice shall return the
warrant and certificate with a statement of any such act and his proceedings
endorsed thereon, together with a statement showing what disposition was made of
the dead body of the. convict, to the clerk of the court in which the sentence
was passed, who shall record the warrant and return in the minutes of the court.
Acts 1993, 72nd Leg., vol 3,'p. 416, ch. 43. i i

Art. 43.24 — Treatment of Condemned

No torture, ill treatment, or unnecessary pain, shall be inflicted upon a
prisoner to be executed under the sentence of the law.
Acts 1992, 72nd Leg., vol 3, p. 417, ch. 43.

Art. 43.25 — Body of Convict

The body of a convict who has been legally executed shall be embalmed
immediately and so directed by the Director of the Department of Criminal
Justice. If the body is not demanded or requested by a relative or bona fide
friend within forty-eight hours after execution, then it shall be delivered to
the Anatomical Board of the State of Texas, if requested by the Board. If the
body is requested by a relative, bona fide friend, or the Anatomical Board of
the State of Texas, such recipient shall pay a fee of not to exceed twenty-five
dollars to the mortician for his services in embalming the body for which the
mortician shall issue to the recipient a written receipt. When such receipt is
delivered to the Director of the Department of Criminal Justice, the body of the
deceased shall be delivered to the party named in the receipt or his authorized
agent. If the body is not delivered to a relative, bona fide friend, or the
Anatomical Board of the State of Texas, the Director of the Department of
Criminal Justice shall cause the body to be decently buried, and fee for
embalming shall be paid by the county in which the indictment which resulted in

the conviction was found.
Acts 1992, 72nd Leg., vol 3, p. 417, ch. 43.

tT

Currently there are 10 men on death row that committed capital murder at the age
of 17:

(1)

(2)

(3)

(4)

JOSEPH JOHN CANNON #634
DOB: 01/13/60 Rec. 05/09/79 Date of Offense: 09/30/77 (Bexar Co.)

Convicted of the murder of Anne C. Walsh, sister of Pan Carabin, Cannon's
court-appointed attorney on a burglary charge. Gannon shot Walsh seven
times, tried to sexually assault her, then stole her daughter's car,
several firearms, etc.

CURTIS PAUL HARRIS #637 EXEC ITED — io 53
DOB: 08/26/61 Rec: 06/07/79 Date of offense: 12/11/78 (Brazos Co.)

Convicted of ‘the beating death of Tim Merka of Mumford... Murka was killed
after he stopped to help Harris and three others on a Brazos County road

‘where their car had stalled. Harris beat Merka to death with a tire tool,

then the group stole Merka's wallet and his pickup truck.
EFREN CASTRO IBANEZ #681 _
DOB: 10/17/62 Rec: 03/23/81 Date of offense: 01/29/80 (El Paso Co.)

Convicted of the strangulation death of his 38 year old homosexual lover,
William Morris. Ibanez strangled Morris with a shirt after objecting to
Morris' request that he be sodomized. Ibanez stole Morris' car after the
killing and drove it to Juarez, Mexico. ~

GARY GRAHAM #696

DOB: 09/05/63 Rec. 11/10/81 Date of offense: 05/13/81 (Harris Co.)

Convicted of the shooting death of Tucson, Arizona resident Bobby Grant
Lambert, 53, who was robbed and killed in the parking lot of a Safeway
store. Graham, also known as Kenneth Stokes, was sentenced to an
additional 20 years when he pleaded guilty to robbing and assaulting 10
people all over the city in a six-day May crime spree.
i
i

i
i

(5)

(6)

(7)

(8)

(9)

10)

ROBERT A. CARTER #708

DOB: 02/10/64 Rec. 03/12/82 Date of offense: 06/24/81 (Harris Co.)
Convicted of the. ‘shooting death of Sylvia Reyes, 18, a convenience store
clerk during a fobbery, Carter was also connected with the shooting death
of R.B. Scott, 63, during a robbery at a beauty supply store in Lockwood.
BOBBY JOE WILLS #795

DOB: 01/28/67 Rec. 05/17/85 Date of offense: 01/17/85 (Orange Co.)

Convicted for the aggravated robbery and .shooting death of convenience
store clerk Judy Bracewell.

, i
GERALD L. MITCHELL #838 al ey
DOB: 12/27/57 Rec. 07/24/86 Date of offense: 06/04/85 ~ (Harris Co.)
Convicted of the shooting death of Charles Marino, 20, during a drug buy.
(Mitchell also shot Marino's brother-in-law, but he survived.) Mitchell
stole Marino's car and approximately $25 when he fled the scene.
MAURO MORRIS BARRAZA #996
DOB: 05/05/72 Rec. 07/24/86 Date of offense: 06/14/86 (Tarrant Co.)
Convicted of the robbery and murder of 73 year old Valorie Nelson after
entering her home through a broken window. She was struck in the head with
a pair of shrubbery shears and then was trounced by Barraza, resulting in-
her chest being crushed. Her throat was also cut.
JOHNNY LEE REY #999021
DOB: 04/27/73 Ree. 02/11/92 Date of offense: 05/11/90 (Randall Co.)
Convicted of the robbery and murder of 72 year old Hilton’Raymond Merriman
Sr. of Canyon. Rey and five codefendants forced their way into Merriman's
trailer home. When he confronted the intruders, he was beaten to death.
MIGUEL ANGEL MARTINEZ #999026
DOB: 08/06/73 Rec. 05/01/92 Date of offense: 01/18/91 (Webb Co.)
Convicted in connection with the brutal murders of three persons inside a

Laredo residence. The three were stabbed or hacked with an axe while they
slept.
In addition, four death row inmates (age 17 at time of offense) had their
sentences commuted to Life:

LEE ROY BARROW #416013 was sentenced to death for the July 27, 1980
robbery/beating death of Lynn Sternberg, 70. .Barrow robbed Sternberg for money
to’ go to a massage parlor, where he was later arrested.

VICTOR RENAY BURNS #438179 was setfftenced to death for the March 28, 1981
shooting death of Johnny Lynn Hamlett, 20. Hamlett was shot 14 times with a .22
caliber rifle and robbed of an indeterminate amount of money. Burns testified
that he waited. in the car while his brother, William Burns and accomplice Danny
Ray Harris went inside.

BILLY JOE BATTIE #511415 was sentenced to die for the robbery/murder of Peggy
Hester, 19, a convenience store clerk at the IN-N-OUT Food/Store in Fort Worth.
Customer, John Howard Robinson, was also. killed. Both victims were shot with a
-410-gauge shotgun. Battie netted $52.72 from the robbery.

JOHN D. MATSON JR. #626762 was convicted of the kidnapping of a 34 year old
black female, who he took to Kirkwood and Bellaire in Houston and robbed and
stabbed to death. :

The following inmates were 17 at the time of offense and have since been
executed: an

JAY KELLY PINKERTON #686
DOB: 02/14/62 Rec. 06/29/81 Date of offense: 10/26/79 (Nueces Co.)

Executed 05/05/86 for the murder of Sarah Donn Lawrence during a robbery with-
imtent to rape. Lawrence was stabbed more than 30 times. Pinkerton was also
convicted of capital murder. in the stabbing death of Sherry Welch.in Amarillo.
Welch was stabbed approximately 30 times and raped.

CHARLES FRANCIS RUMBAUGH #555 . .

DOB: 06/23/57 Rec. 08/25/76 Date of offense: 04/04/75 (Potter Co.)

Executed 09/11/85 for the murder of Michael. Fiorillo, 58, during a jewélry store
robbery. 2 i ae

JOHNNY FRANK GARRETT #729
DOB: 12/24/63 Rec. 12/15/82 Date of offense: 10/31/81 (Potter Co.)

Executed 02/11/92 for the murder of Sister Tadeo Benz, 76, a nun at Francis
convent in Amarillo. Sister Benz was raped, strangled, and beaten.
WOMEN ON DEATH ROW

Before capital punishment was declared "cruel and unusual punishment" by the
U.S. Supreme Court on, June 29, 1972, there were three women. on death row:

Emma Oliver #340 (B/F) DOB: 09/23/10 Rec. 04/01/51
Bexar Count?- Murder
Commuted to Life: 06/29/51
Deceased 02/06/53

I
[ Maggie Morgan #427 (B/F) DOB: 09/14/12 Rec. 06/01/61
| Harris County - Murder .
Commuted to Life: 07/25/63
Carolyn Lima #443 °° = (W/F) DOB: ‘02/23/42 Rec’ 01/16/61
Harris County - Murder
Retried and received again 03/13/64 with a sentence of
five years for murder without malice. - “
Discharged 04/03/65.

Velma Barfield was the last woman legally executed in the United States. She
died by lethal injection November 2, 1984 in North Carolina's execution chamber.

From 1930 to 1962, 30 women were put death for committing murders, one for
kidnapping, and one for espionage. °° ~ :

There has never been a woman executed by the State of Texas.

The following women were sentenced to death after capital punishment was
reinstated in 1974, four (4) are still on Death Row in Texas: -

MARY LOU ANDERSON (W/F) DOB: 09/16/43 Rec. 09/06/78
Commuted to Life: 10/31/78

LINDA MAE BURNETT (W/F) DOB: 02/03/48 Rec. 03/23/79
pO Commuted to Life

ft.
t

The following women are currently on Death Row:

PAMELA LYNN PERILLO #665
(W/F) “DOB? ° 12/02/55 “Rec. 09/11/80 (Harris Co.)

Sentenced to death for robbing and strangling to death Bob Skeens of Houma, LA.

KARLA FAYE TUCKER #777
(W/F) DOB: 11/18/59 Rec. 12/18/84 (Harris Co.)

Convicted of capital murder in the 06/13/83 pickax murder of Jerry Lynn Dean,
26.

BETTY LOU BEETS #810

(W/F) DOB: 03/12/37 Rec. 10/14/85 (Henderson Co.)

Sentenced to death for killing her fifth husband, Dallas Fire Captain Jimmy Don
Beets, as part of a scheme to collect as much as $100,000 in life insurance and
pension benefits.

1985

FRANCIS ELAINE NEWTON #922
(B/F) DOB: 04/12/65 Rec. 11/17/88 (Harris Co.)

Convicted in the April 1987 slayings of her husband,.Adrian, son, Alton, 7, and
daughter, Farrah, 21 months, for insurance money.

iouston

ronicie ;

Vol.91 No. 224

Sunday, May 24, 1992

$1.25

TEXAS: No. 1 IN EXECUTIONS »

By KATHY FAIR
Houston Chronicle

ek,

VILLE — Harris County juries have

‘sent nearly twice the number of black inmates
to death row as whites, accounting for 40

“death by jon.
“That fact-puts the Houston area far out of step
-with all other counties in Texas and with what

|. racial disparity-in capital punishment.
Harris County has sent 51 black murderers to
death row. — almost four times as many. as
< Dallas County. The'l4 condemned killers from
Dallas County srepresent the second highest
-* mumber “of black death row inmates from a
* single county. «2° =".
; Questions about who is being sentenced to die

percent+of all ‘Texas ‘black prisoners facing -

-many researchers haye found in their studies of .

‘Roll Gall of exe.
AL ‘outed: Page 18A.

— and why — are being raised as Texas marks
another milepost in its erimninal justice system:
the death of the 50th prisoner Since the state
resumed executions.10 years ago:

Since December 1982, Texas has outpaced all
of the 34 other states that can impose capital

‘Harris County ieads i in sending’blacks to death row

punishment, And with eight executions in the
first five months of the year, state officials are

predicting they will eclipse the 1986 record of 10

executions.

Leigh Dingerson, executive director of the
National Coalition to Abolish the Death Penalty,
said the large percentage of blacks sent from

Harris County is “not out of line-with what. we:

see across the country.”
Bat, she added, “It is disturbing because of
what it says about our society and:what it says
about our criminal justice system,” ~
Diann Rust-Tierny, executive director of the
American Civil Liberties Union’s Capital Pun-
ishment Project, said it’s difficult to analyze

what might be happening in Harris County.
“but ‘there is”
certainly enough there to raise some questions -

See EXECUTIONS on Page 19A:

without having all the da

~~ Carlos Antonio Rios / Chronicle,
the death chamber at the Department orrec-

tions’ Walts “Unit at Huntsville, the state ‘has lethally injected 50
“convicted killers since capital punishment was reinstituted in 1973.

ovéR)
. ig Wp
‘ment, racial factors still influence

Executions =i Se aiakes
Harris County.”

Continued from Page 1A. ‘But Marquart cautions that statis-

» tical analyses “mask what's going on
and take a closer took. Inthe real world, ‘Youcan't draw any

ith sentences. between
Overall, the racial makeup of . Yeap sod 4008 inthe shat ‘Anglos
ceaih rom Is nearly half white: Ac~ "in Harris County are neatly twiee ot

with a from Harris crime, prior record of the d
County are not readily available, : and whether the murder vicier aise
prison officials said, because of dif- “rae raped, robbed ot burglarized.
Geert manners in which those fig- When those issues are taken into
ures are collected. account, they explain away a lot of
But some’ comparisons can be hat inital sea be tact
made with the total number of new bias, some experts sy.
prisoners county sent ‘The raw figures represent racial
the Texas Department of Criminal gicparity, Marquart said, but they do
ste in fiscal year 1991. For ex- not mean that black defendants are
‘discriminated against bj
"a Black ols represented 87 per- cea by

Houston-area
cent of the 4,679 sent to prison from Neary al te rexarch being done
Harris County last year. ., Rationwide, Marquart and others

Im Whites represented 21 percent of say, shows that the original concera
prisoners. ov

Asie, American diane and
other groups accounted for less tims?
percent of those in prison, mi race a factor
Capital punishment foes have long _ Marquart and a researcher at the
argued the death penalty is aiscrimi
natory because a disproportionate _land-Olson, contend that the diseriae
umber of blacks and poor people inatory aspects of the death penalty
executed. i

are
Racial discrimination against of-
fenders being sent to the death dered by
‘shambers was one of the reasons the _Texas law does “little to check the
US. Supreme Court abolished capi- discretion of prosecutors in deter
{21 punishment in 1972 The Texas mining if the case will be tried as a
Legislature rewrote the death pen- capital murder and if plea bargain.
alty statute in 1973 to eliminate that Ing will be utilized,” Marquart said.
ential

bias,
Court upheld the new law in 1975. the power to reduce a capital mur.

has been wiped out with the newer tire capital punishment process," be
statutes, says James Marquart, a added. “That's the black box. That's
¢riminal justice professor at Sam where the discrimination is going to
Houston State University. enter.”
Some research suggests that Texas Harris County District Attorney
Jaw “has not met its legal objectives John Holmes bristles at the
in reducing or eliminating arbitrari- i
ness and Seger in capital
Punishment,” Marquart said.
“Despite the Supreme Court's ef-
forts to assure fair and non-discrimi-

The Texas electric chair was usi
Since the state resumed executi
50 prisoners to death by lethal

sentences in and which to try as
lesser offenses.
“Tn no case am I told or advised or
know the race of the victim or
defendant,” he said.

A trend in rape cases

Holmes said he intentionally de
signed the suramary forms used in
all potential capital cases in 1979 50
‘the race factor would be omitted. “I
didn’t want anyone to accose me or
this office of this,” he said.

Ekland-Olson is skeptical.

“Thope that's true,” he sald. “But it

ed 361 times from 1924 to 1964.

jons 10 years ago, Texas has put
injection.

Operates
patterns 18 im rape cases,” said Ek-
land-Olson, who conducted his own

curred in Harris County between

sentences were five times more

iy to occur with white vietims
than black victims, and 3.1 times
‘mare likely to occur with white than
Hispanie victims.

“Going all the way back to 1924,”
Marquart says, “Texas has never
executed anyone for the rape or
rapemurder of a black victim.”

But Ekland-Olson_ acknowledges
that his reseatch indicates that fae-
tors :

“Tt may be that the race differen.
tial, especially in rape cases, comes
‘not s0 much from racial consider-
ations as it does from the ‘stranger?
factor,” he said,

‘That means rape-staying cases in
which the vietim did not know her

his
istence that there are no patterns
of racial discrimination from Ste-
phen Klein, senior research scientist
for the Rand Corp, a California
‘based think tank,

Flein conducted an independent

study of racial patterns in capital

‘cases at the request of the California

attorney general and testified about

such issues last year before a Con-
ional subcommittee.

aressi

“Race of victim is not a factor for
the fion’s share of the cases that are
subject to the death penalty,” he told
Jawmakers. And where it does occur
it occurs in such small numbers itis
not statistically significant, he said.

‘Too many variables

rape, contrary to popular thinking,”
he said. Cases of white men raping
black women are “pretty unustal,”
hhe adéed, and that factor would
explain why researchers like Ek-
Tand-Olson have found more cases of
white rape-staying victims resulting
In a death sentence.

Appearances of ‘racial bias in
death sentences disappear when re-
searchers examine all the other fac-
tors that juries take into consider

Texas executions
per year ¢
Since the 1982 reinstatement of
capital punishment, 50 persons.
have boon executed.

1992 RSSRETMy
1991 SEER]
1990 DESEERY
1989 ERY]
1988 EEE)
1967 TS

166 SEEEORPRERETS
1985 A] :
1984 BRE

1982

Death row inmates’
by race

Chron
ation when deciding whether a cdpi-
tal murderer should liveor die, Klein
said, a

For example, juries are miore
Ukely to return death sentences in
cases where the victims were tor-
ture, In case involving mom-and-
op grocery store killings or in cases
Where the defendant has. a. prior
‘criminal record. None of those fac~
tors, he said is related to racial bias:

they may show up in casey, of

lack-on-white crime. q

“There is racial disparity, and
nobody's denying that,” Klein sid.
‘But research just doesn't support the
notion that the disparity exists be-
‘cause of racial discrimination. | >

“The disparity exists, and it i 4!
large aoe difference,” the:
said. “But it's never going to !go!
away. It exists in almost every area’
of society,” including education and:
income. }

Nonetheless. Klein said, continued’
research into racial bias and death
sentences is worthwhile. .

“There's a valve(in the research) if
people have a perception that the
system is unfair,” he said, “TE It is
unfair, then we ought to examine the
reasons why. That's a reasonable
-goal. The problem is research will
Never be able to put the issue tD
id
et ones gee ee

Hous CAROMECLE
TLOUST OP AMA

Cover)

t

Evolution of executions:

Peers Many death penalty advocates, in-
bs Bical eblbdon County-by-county convictions cluding officials from other states,
Convictions by county to Texas” death row as of May 8: ces feopeet iene Aeaey
HUNTSVILLE — When Charlie | County Ne._| County No. | County Wo, | assistant US. attorney in Houston,
‘became ith the foresight to have carefull
Eee Set fever cmemten ‘te | Anderson 7 | Hamitton 7 | Newton 2. | ‘Srooen eetee to fuck cough tke
lethal ‘injection on Dec. 7, 1982, he | Angefina 3] Hardin 1 | Nueces 7 | federal courts in the early 1980s.

‘a celebrity, although an igasble } Aransas + | Harris 96 | Orange 1 st Selection process elped
ove, Kasco: 1 | Hender 2 | Palo Pinto 7 | build soli of ease law on
ath the the attention of the nation's sa 1 Hisalgo 3 | Panola 4 | which the state continues to rely.

Brooks went to his | Bexar 18 | Howard 1 | Parker 3 As part of that said
Seath isthe glare of elovison Bz = > aot 7 > | lac, Texas judges, as well as federal
Brazos 2 3 | Poter 3 | EiSinetodes rousians ana ass:
3B. [esetterson: S| Randa 3 | sippi— simply have become more at
‘Caldwell 1 | Johnson 2 bine 1 ease resolving life-and-death issues
‘Gameron 7 | Jones 1} San Jacinto 1 | inan expeditious manner.
‘Chambers 1 | Kaufman 1 1 “Nobody ee to be tore ina
results, in someone's
Solin, 7 | Kieberg T | Shelby 1 | Geath*hesaid. "But they understand
Com: 1] Lemar’ 2 | Smith 5 | why it’s OK to do these things that
Crockett 1 | tamb 4 | Tarrant 24 | ron against human nature”
ee Se pte || enema ee
4
Teco ict came ipues from faye | Benton 4 | Chery 4 [ams 8 overturned about third ofthe death
andrder conservatives and esti | ELPaso 5 | timestone 3 | aay, & | fous problems the court found iu the
Pr iy International 1 | Ludbocke Victor 1 | cased sald court adminis
fn the National Association forthe | Fort Bend 2 | Madison 1 | Watker 3| Weed ee Ree
eo a Do ge
; A iarton 4 | u,
Pe eltoad : ; 5 pune 4 cscs: Here's what you mts
Yeo tieFeh I'destn ef Jehany | Grayson 2.| Montague 1 | wood 7 ‘els (Peli Nod besahl 90 por
Frank Garrett, convicted of the | Gregg 2°] Montgomery 4 | Zapata 1 ‘of trials are being upheld
4 S | Tota iad “Ae the way, the 5th Circuit has
acum thea tr vhansael on how capital cases are processed,
‘Chronicle Zapalac said.
“The result is that they don't: on spend

Execution statistics paint an
ictare

picture of Texas and the
felons who shot and stabbed, pum-
‘meled and poisoned their way to

infamy:
"OF the 50 executed
thus far, 40 percent killed during a

men, two were Hispanic men, one
was a black female and one was an
Asian male.

Guns were used in 36, or 72 percent

1 Four prisoners mere pu fo death
for murder for remuneration and
fone each for murder during an e3-
cape and multiple murders.
‘Seven prisoners volunteered to
bbe pat to death, abandoning appeals
of their cases.

NAACP Defense Fund re-
cords reveal Texas has executed 25
Anglo, 13 black and 11 Hispanic

defendants. The vast majority of the
victims of these heinous crimes were
Anglos — 21, or 42 percent, were
‘Anglo males and 19, or 37 percent,
‘were Anglo females.

Six of the victims, or 10 percent,
‘were Hispanic women. Only two of

additional 19 percent in adjacent

counties.
Those facts alone, experts say:
explain the hard-nosed
that Harris County. as

‘ten jn proseenting eapital eres
= and following through to get the
defendants executed.

Harris County has 96 killers await-
ing execution. That figure consti-
tutes 27 percent of the 358 Texas

murderers under death sentences
and gives Harris County a larger
death row population than all but
seven states.

the victims in these cases were black .7r In comparison, Dallas County bas

seat 4 prisoners (RS percent of fhe
total) to death row, Tarrant County
24 (627 percent) and Bexar County 18
G percent).
‘Why has Texas been able to carry
ut capital ponisiment more often
than any other state?
‘The credit — or blame, depending
on where you stand — lies with a

amber of factors, experts sa:

limes coudosive to pital paste

ment, aggressive prosecutors,

‘and federal judges who no longer shy
such d

“Right now there is a judicial
climate that is complementary to
fhe, punlig opinion timate

Assistant Al General Bill Za-
palac. “It's not that the 5th Circuit

(Court of Appeals, the federal judi--

ial region that includes Texas) s

Dioodthirsty, but they have three
states with large death row poptla-
‘ions, and those states have statutes
that ‘have withstood constitutional
challenges.”

a whole lot of time with each
tying decide what he a ofthe
circuit fs.”
In contrast, federal judi
oh US. Greait Cont of App
have been more inclined to"
executions.

That circuit includes California,
‘which last toonth executed its first
prisooer in a quarter century. But
even that prisoner’s death didn't
‘come until the US. Supreme Court
issued a tnique — and to some,

the jeg rom blocking Aon Hare
ris’ death again without the high
‘court's permission.

among a grea
judges,” said Dane Gillette, an assis-
‘tant California attorney general and
president of the Association of Gov-
emavent Attorneys in Capital Liga.

Gillette said California judges also
are more leery of pushing through
capital cases than are Texas judges.

Between 1977-and 1986, Gillette

said, the California Supreme Court
ruled on only 68 capital cases, and
only four of those were upbeld, be
sai

he added, “are
mistake.”

‘exas Resource
ally funded organization that pro-
‘vides lawyers for death row

ers, agrees the Texas court system is
the key to explaining the frequency
of executions.

‘Rather than crediting judges with
the ably to make toigh delons
jer pressure, though, she said the
praca © wecied weal! ae coe

ter's capital defendant clients.
“T think the system, the process
‘whereby habeas petitioners. (death
ow clients appealing in the federal

to the large number of executions,
she said.

Death penalty litigation in Texas,
she said, is fueled by the arbitrary
setting of execution dates without
regard to whether the prisoner bas a
lawyer to represent

‘Texas is the only state in the
‘ation, she added, where there 1s n0

agreement
‘Another key factor explaining the

state's execution record, experts say,

is the length of time its capital

sentencing statte has been on the

‘which the USS. Supreme Court de-
clared capital punishment unconsti-
tutional because of the: and
discriminatory manner in which it
had been

imposed.

By 1976, its law had passed consti-
‘tutional muster. That early jump
for the Jerbiative siarting Desk,

notes Mike McCormick, presidin
Judge of the Texas Court of Criminal
‘Appeals, simply has given Texas and
the Sth Circuit more experience than
mast other states.

gi aa ee Aeshed out
every ye that 2
Fase e sk

Most. experts also say polities play
arole in these cases, especially from
prosecutors who aggressively re-
spond to what the Texas Resource
Center's n deseribes as the
public's “great hysteria over erime.”

Wetzel, the appeals court acminis-
trator, agrees:

“The vast majority of the public
wants these executions to take place,
and prosecutors go for them,” he

Texas and the death penalty

said. “And 1 think that helps their

campaigns Slate judges are tof

ced by the same factors.”

But in some cases, prisoners sim:
ply have been on death row for #07

for
“Time fs on ts fora hig

but then time Becomes your enemy,

Wetzel said. “(Prisoners) more 6

Jess get a free ride for about 10,

years.”

‘The result has been a conflicting.
{mage of the Lone Star State around,
the country.

‘Nearly 30 percent ofall executions
that have been carried out in fie

spital Pes.
eemercunc

the reputation of being 2 a.

welled hing machine” sbe sa
“Texas is definitely viewed ag a”
world in itself” said Harrington, But
it is also viewed as a state in chaos,
not only hecanse of the mimber of
death sentences carried out but also
because of the large number of

scheduled executions, she said.

Ths month, Texas had areoor€13:

‘the;
ES oF ee
Sea coca, See
dle the paperwork im me,
‘appellate process.

“Texas bas the image of , pte
sho can get the job done,” said Joan!
Byers, who handles cpt ligation;

‘assistant attorney general!
North Carolina.“It has the imagerof}
having highly competent lawyers!

th Creu has not put a prisoner to;
death since
“The Misael ‘Supreme Court igh
reluctant to move on these cases’
assistant attorney general Narvii
‘White said, adding that Mississipp

Satute has had several constiite!
tional problems. tt
“We've done a Jot of fine-tuning of
the law,” he said. “We've had to go:

back to square one several times,
“In Mississippi, you have some
prosecutors rehictant to go after the,
Seath penalty and more likely :to
plead out cases. On the whole, you:
think of Texas as kind of a free-_
‘wheeling, gun-toting last frontlet="

‘many years that time is running out!
them. iN

take big toll

Haus70A) :
ree  on-witnesses

CHROAL LE : -
Reputations are put

AY May (174, |.on line, some claim
By KATHY FAIRS
Houston Ghvrile

Some of the first casualties in capital
‘murder trials are likely to be witnesses:
"rather than defendants,
“You put your professionalism and :
reputation on the I line
‘every time you're on
the © stand,” aia
James Mai eis
of the “hires gu’ in in
several Texas death

ton State University,
Sal e's quitting be
.sause being a profes-
Sonal witness or the dafense staking fis
tol
“People think you're a mouth
tho dolense
Jou" he sl jt fun getting up on
itness stand and having someone
cea your head aft
+ , Marquart has been a frequent witness
In capital murder trials in Texas and
few other states since he published his,

“Ont that time, Dallas psychiatrist °

James Grigson had earned the moniker

of “Dr. Death”. after testifying for the -
state at dozens of trials. In virtually
every ‘ase, he had testified that the
defendant undoubtedly would commit
4ats-of violence in the future,

Such testimony is offered to help jurors

snswer the question of whether the defen-

‘dant is likely to commit acts of violence *

4 the future, That's one of two questions _
‘posed In the punishment phase of every
‘capital case,

After studying 47 former Texas death
jrow prisoners ‘whose sentences were :
|commuted when the U.S, Supreme Court
ruled capital punishment unconstitu-
‘ional in 1972, Marquart coneluded that
bredictions that those inmates were a

iy A‘TOL of people think you're a sleaze- ~
ball because you testify for the defen-
anak” he sd

inde! L. Dickerson, a cholo.
laa ‘ten called the addy of defense
greet thal expert witness for the

fense often s wrath of prosecu-
tors, jurors, authorities and courtroom

Sea WITNESSES on

| Slaying trials.

caput aed!
lense Just because theyre paying

down the middle,” he said. "I may become so predictable it’s alrnost

;
be wrong in some of my conchi- as if the witnesses’ testimony has
Witnesses Sirereins(ay ant Si ei
Prosecutors like Welles County Dickerson, who has testified for
Continued from Page 1D, District Attorney David , wets (ae stale ina few barhies ond seer
ce a axpert witnesses for ct isms.are sometimes:
observers because of the message tn cutuaslccre Tost credibility but also could be leveled at the

uae Sanvey. because the same experts show
any posenonyDistersonad Virtually every tal aod heat "Some folks tee they're obliged

ded, make me out (0 bea lar and to to steer the outcome of a

‘common whore.” ""Feeay other prosecutors argue fase based ou whys paying barn

“Whea I started out doing ths, I that the testimony of detease pays he sald.
promised yell would stay Hight chiatrists and Doveblogis bs | But he also believes that many

ple are distrustful of psychlat-
Fie testimony af tral

“wirst, Ws an inexact science,”
he said. “Second, many of the as-
‘sumptions of psychiatrists and psy-
‘chologists do not mesh with a lot of
people's religious beliefs.

Aid finally, there ace’ Juat
‘enough crackpots running around

Ini protessions who come up with
assertions ak (cause) 08 (to)
laygh up thelr

A seiek Houston Chronicle Sunday, May 24, 1992

tethal justice.

“Ifty.murderers have died at the hands of the state
since Texas reinstituted Its Supreme Court-sanctloned
executions ;.10° years. ago, Law-and-order advocates
applaud the speed with which the state executes — three
‘hava been killed this, month and a fourth Is scheduled
to dle this.week — but death penalty eritics decry Texas
ag: a “killing machine." In: Texas, capital crimes are
defined as murders that occur during the commission
of a rape, ipbbety, burglary, abduction or other felony.
be 5 Beta & my

Vay,

eat aes

TRUK Ge wee,

——" fr,
fanget ind, Deg, 14, #
. :: David Pres oe
Sein at enretat ranaal™

EBT") Jay Kelly Pinkerton, 2 Michael Wayne Evang
13 sxeouted: May 19, 1986 : oe 4, 100g
"4 Offanse: Stabbing, Oct. 26, 1979 SW Offense; Shootirig, June 26, 1977
‘Victims @aran Dann Lawrence, 30 Victim: Elvice Gusirero, 38
County of Ganvictian Nueces ‘County of Conviction: Dallas

Sad John R. Thompson, 32

BaFA Executed: July 6, 1987
cone ene
County of Convio: Boker

examen!
were $8, 1900. rey Sahin. Feb 27,4082
3 July 18, 1990 ; 4
Steneo: Sietbie, Get 14, 1980 iene ina

annie, 3
ae ene eeict

(over)
‘Stephen Pater Morin, 34

Exoculod: March 13, 1985,

(Offense: Sheaing, Doo. 1, 1981
im: Caria Marlo

county Gonvtot Satan

Gharjen Witla Base, 30

‘Executed: March
\pril 20, es
ek

Honry Marines Porton 43

Exacutad: July 8, 1985 ; March
AR Gienen Shoctingov.29, 1978 : YPM otonse; Showing, ug, 16,1979
AW Victim: Henry Paul Maou, 28 ; EIQ Geers has ony Baker, 8
os Mil moe Caunty of Conviction: Tarrant uy a sy County of Conviction: Harris
24, tit Jettery Allen eure
ne : hovios Rumbauaty 22 Executed: Api 16,
: fttenan Shesinge dil a 1876 ini How dh i ta
Victim: Michael Fiorillo, 68 * Victim: Ruby Mae Longsworth, 62

im:
‘County of Conviction: Potter aunty of Gorvicuon Harts

Bp | enmath Brock, 27,
Execute

ne 19,
Offense: ‘a 2 1974
Vietim: ag Shoat 3
Gant of Convo Haris

Larry Sith 30
Ea Executed: Aug,

xia Slenso!shosing, Feb 2 1978
Victim: Mike Masan,

Sounty of Conviction: Datos

Ramos Esquivel, $0
Executed: Jue 3,

neces akan ST
Aug. 28, 1988
Otfense: ait ‘aves Agi, 198
Susaine ein 23
county of ‘Consation: Gal

Anthony ¢.Willams, 27"
fay 28, 1987

Randy 1. Woot 36
tod Aug, 20, 1008

"a ottens: Stanbing. june 16, 1979
‘Viclim: Setly Stoits, 43,
County of Conviction: Tom Graen

County. aunty ot Conviction: Harris

Slane Bludgoo
a Mil cso Lynn Weight, 13

Rlchard Ancira .
led Doo. 18 18 GSiniy of Conseton Hara

aren 20, toes

Yetim: Corda

el Gea Sova 28 entliseg tt Morera, 27

Offense: Shoot
‘Vitim: Russell Boyd, 25

‘County of Conwiction: Fort Bend

Eilat R, Johnson, 28
Executed: June 24, 1987
Offense: Seal ‘April 8, 1982
Viti Joseph Granato, 67
County of Gonvilion: Jefferson

Raymond Landry. 29

Me} Exacuted: Jan. 7, 1968
‘Offense: Shooting, Dac. 17, 1982
Vietin: Christine Baker, 44

vagal a4 County of Conviction; Hardin
Offense; Stealing 1 Nov, 19, 1976
Shee Ne eae Donald Franklin, 37 Leon Rutherford King, 44

‘County of Carviction: Montgomery Erected: Marc 22 1868

1975

ts Mary Margaret
“Peggy” Moran, 27
‘County of Conviction: Nusces

Gartos Deluna, 27
Efctens bos, 1909
i ice Stating Fe. 4, 1989
Yeti Wanda Jean Lope, 24
| County of Conviction:

Offense: 2 Seaing, Ook
Victim: Robert E
a ea eerie Harris

loronte Butta, 54

awrency Buxton, 98 nes Stearns, 2
Feb, 26, 1981 a Coury of Convictions Fort Bond

jen Joe Bird, 54

Executed: June 17, 1991 :

offenses Shocling ane f, 1974 Hansa: Nov.

Vietim: Victor Herrati Trammell, 65 Victim: Johnny Oenson, 44
‘County of Conwiction: Cameron inty of Conviction: Monigomery

David Michaol Clark, 32
Exocuted: Fab, 28, 1992

Executed: March 3, z
pit Ofenge: Sranquaton, fee 27,1983
ere Elizabeth Ea! 3

eons Le

Josus Romero J,
Executec: May a foe
Offense: Beating, stabbing, Dec. 23, 1904
Victim: Olga Peraios, .
Ean of Cont: Cameron

‘Robart Black Jn, 45 {
Exocutedt: May 22,1
Offense: Shooting, Feb, 21, 1985
‘Victim: Sandia Black, Age 36 |.
‘County of Conviction: Brazos

Texas has the biggest
death row In America.
Over 370 prisoners in
the state await execution.
Fora select few there 1s
an alternative tO being
locked up: working in
the prison garment
factory. What do they
fee} about living and
working in the shadow
of execution?

by KATE MUIR

FOR A SWEATSHOP, it all looks pretty normal. There is
the wh:-r of industrial sewing machines and a lower note of
chatter Rows of men in white overalls. some wearing match-
ing caps backwards. are sewing trouser shapes and pockets,
from grey material. The rest are trimming threads with giant
tallor's scissors, adding piping, finishing seams. In the office,
soineone is doing the books. There is some larking around by
the coffee machine, and copious cigarete breaks. More shop
talk than sweat.

‘But at the far end of the factory there is a man on a plat-
fc:m in a cage. He looks bored and depressed, on show in a
Zcnlike way. You begin to feel sozry for him, until you realise
that he is the prison guard, and that the men wandering freely
‘around the room carrying the sharp metal objects of the cloth-
ing wade are convicied wife-murderers, armed robbers and
serial killers.

‘To complete the through-the-looking-glass feel of the
experience, the factory manager says that production has
never been better, although over seven years he has lost 41 of
his “expert tailors to execution by lethal injection.
Replacements are not hard to come by in Huntsville, Texas.
Ti state has the biggest death row — 373 prisoners ~ in
America. Its prosecutors take 2 certain pride in that. As
lawyer John B. Holmes, also known as ‘the Deadly DA’ for
his record numbers of death-row convictions, puts it ‘I say
without apology that if you murder soiaeone here, the State
of Texas is going to kill you.’

‘The State of Texas, in its infinite wisdom bot limited mercy,
hhas pumped poisonous potassium chloride into the veins of 71
of its death row inmates since it reinstated execution in 1982.
Judges are showing increased zeal. Last year, more inmates *
‘were killed than ever before, and prisoners’ legal advisors at
the Texas Resource Centre are saying agaia and again: “in the
rush to execute our clients, innocent people may be dying”
Innocent or guilty, the 120 death-row prisoners on the two
shifts at Huntsville's Ellis One factory, making belts, bags and
trousers with the natty TCI logo ~ for Texas Correctional
Industries feel their work proves that they are productive,
stable people in the prisou; that their now civilised behaviour |
shows that execution is a thoroughly unnecessary step. Life
‘would be just fine with them.

“W's an opportunity for me to better myself’ says 29-year~
old Ivan Murphy Jr, convicted of robbing and killing a pen-
sioner (2s in many of these cases, he alleges his co-defendant
was themurderer). ‘I can get out of myself, not sitting in the
unit all day. I get some peace of mind at work — it keeps me
from thinking about my problems.”

‘Through reinforced glass, another prisoner says the factory
has brought him friendship and a sense of worth. ‘How can |
anyone say I can't function within prisos? I'm a reliable
worker, but that means nothing in 2 court of law, says
William ‘Billy’ Mason, who has been in and out of prisoa ~
‘mostly in ~ for murder since 1974. He has aimond-brown eyes

and a charming demeanour. In 1991, according to his record,
he killed his wife with a rock after an argument over loud »

Falewbs Fon Tire werk ai Hunisil's Ells One latory giver mae
the chance to make deep friendships

‘ath music and got the death sentence. Now 40,
he tramed as tailor in hs teens ICs nota ques:
won of I have a weapon available —it's@ tool of
‘my trade. We are tailors, making clothes.

“That comforting fantasy will only last until
their execution dates are set and the prisoners are
femoved from the factory. about a month before-
hand, to prepare’. They are sent to the town
prison about 15 miles away; 36 hours before exe-
cation time they are put on “death watch’, where
their every activity is carefully logged.” Some
receive 2 stay of execution, and are back at the
machines within five days ~ alongside the cok
leagues they sid goodbye to forthe last time.

“They know it’s coming." says Charles Duff, the
factory manager a friendly man with a cigarette
permanently between finger and thumb. “They
know more about when 2 man’s going to get exe-
‘cuted than we do. But it’s accepted when the time
comes. It's accepting, but i's kind of quiet, espe-
cially if the guy was well Iked. After there bas
been an execution and they're lining up to be
counted in the moming, someone asks for a
‘moment of silence while they siand there.”

Unlike other death-row prisoners, who are iso-
lated in their cells for most of the day, the factory
workers form deep friendships. Here, unlike the
‘est of death row, whites, blacks and Latinos all
mix easly together, making the sudden disap-
pearance of the pattem-cutier or the stacker all
{he more painful. Tyrone Fuller, a smart, bespec-
tacled 30-year-old who works four hours @ day in
the sweatshop, says he was very close to three
friends who lef the production ine for execution.
“The way T approach it is that day I don’t cat,
whether I knew the person ornot, because I think
there should be some dignified way of marking
the loss.” But despite the sudden disappearances,
the see-saw between life and death, what strikes
you most about the factory isthe utter normality
‘oft, and indeed some of the mea say it becomes
oddly like the outsid= world - they work hard
Monday to Friday and find themselves looking
forward to the weekend.

“Nobody thought it would work,’ says Duff.'At
first alot of people said it would be too danger-
fous the prisoners would be uncontrollable. The
scissors are razor sharp ~ they've got to be ~ and
people thought it would be big mess. But afer a
month it was clear the men were committed: tey
wanted to work.” One inmate has been working at
the factony for 18 years. A similar scheme is being
tied on Tennessee's death row with computer
‘work. Inthe Huntsville factory, they work not for
money, you understand, but for the love ofthe job.
Up to 20 men volumeer for the factory every
month, but the selection board only takes a fow
with good behaviour records. The rest are left to
rot 2 hours a day in ther cells

Here is an average day for a prisoner on the
death row segregation wings ~ those classified as
the most violent and dangerous. Those who are
considered by the authorities 10 have behaved
Tike animals are certainly treated like animals.
Breakfast is offically at the cruel and unusual
hour of 3.30am (although some ex-segregation
prisoners claim 3am is more like i). Recreation

STITCHED ur: after an execution as taken place. someone asks for a moment's

ie in the workshop,

starts at Jam and is either three hours in an out-
side chicken run or an indoors room witha televi-
sion, seats and a punchbag Lunch is at 9.30 or
am. Supper is at 3.30pm. Visits to the shower
are made in handcufls with wo guards. When
families come to visit (though many disown death
row inmates), the men on segregation are put on
‘wooden chairs in one of seven blue double-mesh
cages and handoutied, their relatives slightly hazy
‘on the other side of a perspex screen.

By working in the factory, all these extra
restrictions can be avoided: the men can associate
freely with their friends on the wing. serve their
own meals and, of course drink endless cups of
coffee at work. ‘It’s about not being humiliate,
not being strip searched every time you leave
your cel and having to lift up your genitals so the
guards can look,’ says Murphy. ‘And you don't
Ihave to be seen by your family in handcuffs”

‘The segregation cells are three storeys high,
with sky blue bars topped with extra-thick metal
mech, Small objects can still be thrown, so prison-
‘rs being moved down the corridor to theis cells
walk with two guards behind a perspex shield to
avoid attack. Gang feuds abound. “Think about
it, says Mason. who started out on segregation
like all the factory workers. ‘Some days you're
locked im that cage for 23 hours if they can't
‘organise recreation properly. They feed you
reals in your house on @ tray. It’s six by eight
feet. Your toilet is two feet from your bed.
‘There's no stool or table, so you sit on the bed to
eat. You do what vou can, but the smell in there
hhas just built up over the years.”

Itis a 70-degree Febreary day on this visit, but
‘the summer in the swampy Texas bayou must be
100 degrees of hell. In the cells, tempers fray
‘because there is no air conditioning. but public
areas like the factory and recreation rooms are
cooled

“When I was on segregation. 1 realised that in
some way they had to prove to themselve and us

that we were not even good enough for a prison
environment,’ says Mason. “That's why they
really ty to dehumanise you on segregation
Everything you do there. every litle movement
out of the ordinary, is taken as a threat. You're
even a threat to the society within prison,”

Captain Bill West. head of death row security,
im his net and nylon baseball cap with TDC —
‘Texas Department of Corrections ~ on the front,
says he is still amazed by the variety of weapons
created by people who bave 24 hours a day to
exercise their ingenuity. His haul thus far includes
sharp spikes made from fencing wire, typewriter
rods, plastic, wood. and even pork chop bones
until the kitchen felt it safer to go boneless,
“There are feuds. A lot of them have a lot of ene.
mies; there de dozens of gang members here
Last October, one death-row prisoner was
stabbed in the throat with a long metal spike. His
attacker, also on death row, was thought to have
cut a hole in the chain fence adjoining their out
door recreation yards. attacked. and then thrown
the weapon to another inmate.

In conirast, the 120 inmates who work on the
factory save Captain West a great deal of rouble,
He needs far fewer guards for them, and trouble
is rare. There have been four inmate fights in the
seven years of the factory's existence. No
weapons were used. no blood was drawn, and
threc were broken up by other prisoners, “These
inmates want to work, they want the litle privi-
Jeges. And they do good work. They're manage
able. They put pressure on each other bocwuse
they don’t want to lose this programme.’ says
Captain West

‘When their appeals come up some prisoners
lect to leave the faciory - and lose weir privi-
leges ~ so they can dedicate the whole day to legat
work Textbooks abound, and there is much legal
tall in the clothing factory. The mien are experts
fon scams. darts, the Supreme Court and liabeas
‘corpus appeals, They have 10 know thy law.

F CARTER SMITH

SELF IMPROVEMENT: ‘It’s about not being humiliated’

poned. The chaplain had already been
to speak to him. ‘I wrote a last letter to
my family to let them know everything
Td done in life, instances of when I’d
done right, and when I’d done wrong.’
Fuller admits he committed various
burglaries, and stole credit cards, but he
claims he is innocent of the crime of
which he was accused — rape and mur-
der of a hospital assistant during a rob-
bery at her apartment. Certainly, he
was present during the attack, but his
record notes that one of his co-burglars
reportedly received a life sentence as
part of a plea bargain. Fuller claims he
has been offered a life sentence, but he
refuses to plead guilty to the murder
and rape charges.

Understandably, with unreliable wit-
nesses and layers of appeals which may
take up to 10 years, few lawyers are
willing to take on death row legal work.
At the same time, sentencing is speeding
up. Why does Texas, of all states, see so

because there is no legal aid after the first appeal
against the death penalty; pro bono attorneys are
rare, and often an execution date is set without
the prisoner having any legal representation.
Fuller found himself with an execution date set
for 25 January this year, without a lawyer to
appeal it. He managed to get organised five days
before he was due to die, and the date was post-

much capital punishment? A spokes-
woman for legal aid says, ‘We've all wondered
that. Maybe it’s just a big state. Maybe it’s the
combination of the frontier and southern mental-
ity. Whatever it is, judges in every district can set
execution dates, and we’re often trying to fight
three on one day without the lawyers to cover.’
The National Coalition Against the Death
Penalty has singled out Texas for a special cam-

paign. Last year, the US House Subcommittee on
Civil and Constitutional Rights issued a report
on the death penalty which noted that over the
past 20 years, 48 people nationally have been
released from death row because appeal courts
found them innocent. In the Huntsville factory
alone, 37 men have had their sentences com-
muted to life. Even though critics complain that a
few of the releases have been on technical
grounds, or due to legal loopholes, the commit-
tee’s declaration that the justice system has ‘failed
to offer sufficient safeguards’ seems reasonable.
If 48 were released, how many innocent people
stayed behind to die?

Innocent or guilty, the efficient, production-
line attitude towards an act of sheer barbarism is
chilling. The men are sent to die in the Walls
Unit, originally built for Civil War prisoners, in
downtown Huntsville. The redbrick building
opposite the Dairy Queen milk bar looks like a
school apart from the rifle towers on the corners,
and the huge white clock on the front. Executions
are in the early hours of the morning. The men
wait out their last minutes in one of the eight cells
adjoining the death chamber. The bars are
painted Day-Glo orange- The cells are double
locked. Behind a metal door at the end is a hospi-
tal trolley bolted to a white pedestal on the floor.
Fat, tan leather straps lie across the padded bed.

On these mornings when a man’s arm receives
the slow intravenous drip of death, the tailors’
sewing machines are silent for one minute at the
start of the shift. Then they whirr again. Oo

511
524
533
538
539
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550
552
556
560
572
575
577
“580
587
590
591
600
603
609
612
615

616°

626
633
634
636
637
638
639
640
641
“642
647
649
651
652
653
654
658.

660.

663
664
665
668
669

671.

673
674
675
676
677
679
683
684
685
688
689
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Excell White
Walter Bell
Kenneth Granviel
Edwin E. Corley
Ronald Chambers
Raymond Riles
Sammie Felder
Billy J. Woods

Billy G. Hughes Jr.

Jim Vanderbilt
‘James Demouchette
Pedro Muniz
Harvey Earvin
Joseph Faulder
Anthony L. Pierce
Samuel G. Hawkins
Clarence Lackey
Kerry Max Cook
Paul Rougeau
Clarence Jordan
David Powell

Jack Harry Smith

Emmitte Holloway
John Fearence Jr.
Carl Johnson
Joseph J. Cannon
Arturo Aranda
Curtis P. Harris
D.L. Vigneault Jr.
Edward Payne Jr.
Larry W. White
Charles County
Jonathan. Reed
Jeffery L. Griffen
Cesar R.. Fierro
John Satterwhite
John M. Selvage
Roger L. Degarmo
Johnny P. Penry
Clifton Russel
Jerry: L. Hogue

{Bobby J.: Moore
Darryl E. Stewart

Pamela. L.: Perillo
Warren E,. Bridge
James Session
Delma Banks

Danny L. Barber:
Noble D.. Mays Jr.
Kenneth D. Dunn
Andrew Mitchell
Willie Williams
David A. Gardner
Harold A. Barnard
Alan W. Janecka
Max A. Sofar

Carl E. Kelly
James R. Meanes
Miguel Richardson

694
695
696
698
699
700
702
703
704
705
706
708
709
710
711
745
717
719
720
721
722
723
724
725
727
728
731
733
734
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736
737
740
74h
742
745
747
748
J51
653
755
756
757
758
760
761
762
764
768
770
771
772
773
776
777
778
779
780
781

Markhum Duff-Smith
Carlos Santana
Gary L. Graham
Steven Nethery
Joseph P. Jernigan
Antonio Bonham
Leonal T. Herrera
Michael Goodman
Caruthers Alexander
Fletcher T. Mann
George Cordova
Robert A. Carter
Joseph P. Nichols
Danny D. Thomas
James M. Briddle
Herman Clark Jr.
Bruce E. Callins
David McKay

Wayne East

Charles Rector
Walter .K. Williams
Clifford Phillips
Johnny Pyles
Maurice Andrews
Ricardo A. Guerra
Donald A. Miller
Robert W. West Jr.
Larry N. Anderson
John Michael Lamb
Manuel J. Perez
Arthur L. Williams
Raymon Montoya
Michael E. Sharp
James Moreland
John C. Sawyers
Harold J. Lane
James Ross

Larry K., Robison
Billy C. Gardner
Ricky E. Morrow
Robert N. Drew
Richard Wilkerson
James Wyle IIT
Calvin J. Burdine
Kenneth E. Gentry
Curtis L. Johnson
Jewel R. McGee
Lester L. Bower
Raymond D. Martinez
David Castillo
Frederico M. Macias
Kenneth R. Ransom
David W. Spence
Mario Marquez
Karla Faye Tucker
Pedro S. Sosa
Daniel R. Garrett
Willie M. Modden
Randall Dale Mayo

TEXAS DEATH Row WMATE 41ST

785
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787
788
789
790
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793
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795
796
797
798
799
800
802
803
804
805
806
807

> 808

810
811
812
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815
816
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818
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821
822
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James C.L. Davis
Bonnie B. Erwin
William H. Little
Jeffery D. Motley
Robert M. Purtell
Muneer Deeb
Antonio Barrientes
Terry N. Sterling
Bobby Wills

Emile P. Duhamel
Anthony Westley
Davis Lozada
Henry Lee Lucas
Gene Hathorn
Charlie Livingston
Denton A. Crank
Ruben Cantu
Norman E. Green
Toby L. Williams

-Rodolfo Hernandez

Raymond Kinnamon
Betty Lou Beets
David DeBlanc
Baby Ray Bennett
William Robinson
Mariano Rosales
Richard Foster
Patrick Rogers

‘Ramon Mata Jr.

Ronald Allridge
David Holland Sr.
Tommy R. Jackson
Robert Madden
James Roy Knox
David E. Gibbs
Randall Hafdahl Sr.
David Ray Harris
Rogelio Hernandez
Jeff Emery

Troy Dale Farris
Xavin Lincecum
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Thomas J. Miller~E1
Johnny R. Carter
John Dee Matson Jr.
Juan S$. Soria

“Gerald D. Mitchell

Johnny James
William Kitchens
Clifton Belyeu
Lesley L. Gosch
Aua Lauti

John K. Barefield
Angel Rivera
Richard D. Drinkard
Irineo Montoya
Freddie J. Webb Sr.
Delbert Teague Jr.

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850
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853
854
855
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857
858
859
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861
862
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864

865
866
867
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869

~ 870
~ 871
872

873

“875

876
877
878
879
880
881
882
883
884

885°

886
887
888
889
890

891

892

“893
“894

895

896

897
898.

899°

900
901
902
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905
906
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Michael L. Riley
Benjamin Boyle
John W. Cockrum
Ernest Baldree
Willie Washington
Vernon Sattiewhite .
Carlos Ramirez
José A. Moreno
Robert J. Tennard
John W. Elliott
David M. Long

* Esequel Banda

James Lee Gunter
Karl Hammond

David Lee Lewis
James D. Richardson
Nelson Mooney
Kenneth. D. Thomas
James V. Allridge |
Kenneth W.° First
Jesse D. Jacobs’
Michael Norris
Jerry McFadden
Bruce C. Jacobs
Andre A. Lewis
Martin Draughon
Alvin. U. Goodwin
Carl Napier

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Richard W.. Jones
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Terry Washington
Jonathan Nobles
Brian K. Roberson
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Alvin. Wayne Crane
Roger McGowen
Michael W. Richards
Charles A.. Boyd
David Stoker
Ricky. Don Blackmon
Thomas. Eilason. .
Jesel ‘Turner

Mark Fronckiewicz

James J. Wilkens Jr.

Eddie J. Johnson
Richard Brimmage Jr.
Monty Allen Delk
Kenneth B. Harris
Orien. C. Joiner
Michael L. McBride
Hai K.. Voung
James 0. Earhart
Ted Calvin Cole
Alberto Valdez
José DeLa Cruz
Emanuel Kemp

Syed M. Rabbani

912
913
914
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Marlin Nelson
Earl R. Behringer
Damon J. Richardson
Richard Beavers
Michael Lockhart
Anthony Cook
Michael Jones
Pedro. Miniel
James Clayton
Francis Newman
Leopoldo Narvaiz
Dominga Cantu
Steven Butler
Bernard Amos
Vincent Cooks
Warren Rivers
Timothy Gribble
David Hicks

Gary Sterling
Martin Vega
John Moody
Tyrone’ Fuller
Willis: Barnes
Emerson E, Rudd
Noe Beltran
Jeffery Caldwell

. Preston Hughes

Dwight Adanandus
Charles Mines Jr.
Anibal G. Rousseau
Michael Blue
Javier Medina
Gilbert Urbano
Deryl Madison
Garry Miller

Guy Alexander
John Albert’ Burks
Franoisco Cardenas
Joe Rios. Jr.
Jeffery Tucker
Charles Smith
Oliver David Cruz
Peter Nelson
Robert. Jennings
Jackie Nelson
Ternando Garcia
Raymond Jones
William Chappell
Mack 0. Hill
Juan Hernandez
Frank McFarland
Aaron Fuller
Granyille Riddle
Gayland Bradford
Leo Jenkins
Clydell Coleman
Daniel Corwin
José Gutierrez

Jesse Gutierrez
Genaro Camacho
Rulford Aldridge
Roy G. Smith
Jesse Patrick
Billie W. Coble
Kevin Zimmerman
Adolph Hernandez
Craig Ogan Jr.
Claude Jones
Daniel Hittle
Charles D. Hood
Miguel Flores
Ricky Lee Green
Hector Garcia
Gary Etheridge
Jermarr Arnold
John Yarborough
Ivan Murphy
Robert Lookinbill
Jesus Munoz

‘Mark Robertson

Carl W. Buntion ~
Jack Clark

Larry McPherson
Mauro Barraza
James Bigby
O'Dell Barnes Jr.
Andrew Cantu
Brent Brewer
James R. Powell
Lionel Rodriguez
David Herman

Erie Moore

Dale Sigler
Steven Staley
LaRoyce Smith
Jessy San Miguel
Tony Chambers
Gregory Summers
Ponchai Wilkerson
Alvin Kelly. .
Gerald Casey *”.
David Heiselbetz
David L. Goff
Charles Sonion
Billy Nelson
Gustavo J. Garcia
Shelton Jones
Daryl K. Wheatfall
Johnny Rey

Richard Dinkins
Kenneth E. ‘Bruce
Kenneth R. Clark
Bobby L. Hines
Miguel A. Martinez
John A. Alba

Roger D. Vaughn
THURSDAY, MAY 4, 1995 _MIAWAUKEE JOURNAL SENTINEL

By JAMEs ROwEN
‘ofthe Journal Sentinel staff

Huntsville, Texas — The
men and women of this small
town are quite prov ss

Lisle wonder: The eight pris-
‘ons and the administrative
s of the Texas Depron of
Criminal Justice in this East
‘esas county seat provide more

‘Some residents, however, ac-
knowledge that there's a down-
side to the prison staff and to
the 10,000 inmates often seen
working at trusty jobs near the

that prisons bring tourists.
"AL the core of Huntville’s
unique image are two basic
facts: Texas leads the nation in
‘executions, and every one takes
place at The Walls unt in the
eart of Huntsville, about three

tier Cocnty Chamber of
Commerce office, about a half-
mile from The Walls. “And
you'd be surprised at how many
ask, Where are the prisons?””

‘One tourist brochure offers 2
four-page “Prison Driving
Tour,” complete with a map,
prison descriptions and trivia,
such as: “Youngest inmate was
a S-year-old boy sentenced in
1884 for robbery.”

Another glossy booklet had
color snapstiots of several tour-
ist attractions, including The
Walls, with this teaser:

“Excite your senses. Hunts
ville is famous for its Texas Pris-
an Systent. You can stilt hear the

count’ whistle blow
day. No one should leave
without visiting the Prison Muse-
tum, home of the original electric
chair, OF Sparky.”

ER GEBUARDSTAR PHOTOGRAPHER

“The hands of West Cole, 70, rest on is death row cel at Parchman State Penitentiary in Mississipi
Cole, convicted in 195 in the murder of 2 small-town grocer, isthe oldest inmate on Mississippi's death row.

Soke. —Sia TrJté LZ
Mebevauk 22 Ze) /
I= Y-/9 9S
The Texas Thunderbolt

The museum is tucked be-
tween a shoe shop and a jewelry
store across the street from the
courthouse.

The storefront museum,
which is privately run, displays
dozens of photographs, prison
uniforms, items from the prison
farms and factories, prisoner-
made arts and crafts, contra-
‘band weapons and Bonnie and
Clyde’s rifles. Admission is $2.

‘And the museum center
piece, “OV Sparky,” is also
known as “The Texas Thunder-
bolt.”

‘Ol’ Sparky is an highly pol-
ished oversized oak chair, a kill-
ing machine complete with its
metal skullcap and electrode
bolted in place. It was built by a
condemned prisoner later re
prieved. Ol’ Sparky is now re-
tired, enshrined under bright
lights in a glassed-in viewing
room.

“It was used to Kill 361 men,”
said Mary McClain, the muse-
um manager.

McClain said she and most
other Texas residents had long
supported capital punishment.

Texans are pretty vocal” she
said. “We're fed up with the
criminal element.”

But McClain didn’t want
Huntsville misunderstood.

“We're not a hard-hearted
town,” she said. “It’s just the
way itis.”

William Green, mayor of
Hnatevile, talks up the fown’s
close ties to the legacy of former
Steident and legend Gam Flous-
ton, whose grave is here. The

is stra

Houston State University, is
named after him.

ple here,” Green said.
Just a Job

Just a few hours after Texas
prison authorities put Clifton
Russell and Willie Williams to
death on the last day of January,
a waitress running the cash reg-
ister at the downtown Texas Ca-

‘The retired Texas electric vi

fe quietly grumbled that capital

ir, “Ol Sparky," is on display

residue. A’

al i

town’s No.2 employer, Sam | punishment gave Huntsville a

bad name.
She would not give her

“There are a lot of fine peo- | name, and she advised against

interviewing the breakfast
crowd, many of whom worked
at area prisons, including The
Walls writ

“To them it's a job,” she said.
“They don’t want to talk about
it. Not today.”

‘The woman said she wished
the executions took place else-
where.

at the Texas Prison Museum in downtown Huntsville, Texzs,

antiquated...
ction system fr recently convicted
ible for execution in the gas chamber.

RW GEBHARDISTAFE PHOTOGRAPHER

Mississippi's gas chamber at Parchman State Penitentiary, dormant since 1989, has been used 35 times

since its installation in 1954. Cyanide peliets are mixed with acid in a bowl below the chair in which the inmate

ed. The pellets create a poisoncus vapor, which suffocates the sealed-in inmate. The vapor must be
hosed off with water and chemicals before the body is retrieved
‘oxygen tanks to prevent coming into contact with I
sdure nearly killed then-Parchman

pellets accidentally fell into a bowl with acid, Cabana said. “Its very,
Barry Parker, Farchman security chief. Oificials said a new lethal i
murderers had yet to be used, and five inmates are still el

guards, who wear protective clothing and
full-dress rehearsal to test the execution
jen Don Cabana and six prison employees when real cyanide

very dangerous,” said

But Keith
Brister, pastor
at Hontsville’s
historic First
Baptist
Church, want-

Huntsville had
made its peace
with The Walls
unit.

Tall arid prematurely gray,
the gracious 37-year-old Brister
said that like most local resi-
dents, he had chosen not to
dwell on the executions.

“They don’t want to think
about it,” Brister said. “I don’t
want to hear about it.”

He said he did not minister to
inmates at The Walls and had
never set foot inside its doors,
even though its brick exterior
came to within a block of the

“So many of our people work
in the (prison) system, there’s
not a whole lot of compassion
for the inmate in this conmuni-
ty,""he explained.

Even though he was troubled
by capital punishment, and did
not think it deterred crime, Bris-
ter said he had never delivered
a sermon on the death penalty.

“I'm not going to change
helt mninds wis Gy opinion”
he said. “I don’t think it’s an is-
sue at all in this community.”

~~~ ~“Dallas limes Herald

eoee

RACIST JUSTICE: DISCRIMINATION EVEN IN DEATH Up

Re

in ¢
Le

cases witha | cases with @ " ic] cases with 8
white victim white victim ie Ylotivn > white . From wire
GENEVA
day “well-f

hall Gorbac
ened by the
that one se
tage the su
Grew bute Oat Tes Soin

Killers of Dallas blacks Ey

escape the death penalty (<3

By JIM HENDERSON enough
and JACK TAYLOR difference
Staff Writers ‘hal Py
© 1m, ates Troe Harts mo : : : | tht Ame
pomcer of 1077, Btanley iB puis : i Se el relate

. : ete pee Satie, E ine give+i

beat the teadpant to regional

rraluction

Dallas and beat the occupant to death
with a hammer. The victim was Uhlee
Charles Rogers, a 70-year-old. white

reduction
“Ameri
ters run

man, surmount

Burka wos charged with capital the ferve
murder, indicted, tried and convicted of the wo
of cnpital murder, and sentenced to die After i
for his crime. President

‘The condemnation of Burks was an wife, Nat
increasingly common denouement to private o
an increasingly common occurrence. residence
Violent deed, violent reproof. ‘About

Criminologists refer to punishment ronmenta
as a“‘sanction for crime," retribution as city Satur

® measure of intolerance. But Ameri-
ca’s criminal justice system is not al-
ways so intolerant,

In the nine years since the Supreme
Court allowed executions to resume in
the United States, there has been
mounting evidence that a subliminal
racism still influences the life-and-
death decisions that flow from the na-
tion's courthouses

Burks got death for killing a white
victim. When the victim is black, the

John Kenling/Ontes Tian Heealt

Two Dalles kBers: One who'll die, one who won't

Ste
on

system usually imposes a far lesser Jonathan Bruce Reed, above, was sentenced to death for the 1976 rape By ARN
sanction. and murder of a Braniff flight attendant. Michael Dale Ferguson, right, was By ARN
In the spring of 1980, two Dallas po- sentenced to only 30 years for killing a gas station attendant and expects Austin E
lice officers on‘a routine patrol smelled to be paroled in 1993. AUSTI
@ peculiar odor coming from some Originally, both were charged with capital murder, but Dallas prosecu- tively apy
weeds in a Pleasant Grove park. In the tors reduced the charge against Ferguson to simple murder. ulations
weeds, they found the body of Marion "Read's victim was white; Ferguson's black. Case studies, Page 16-A. ‘abortion:
Vance Kirby, a 26-year-old man. His stringent
hands and feet had been bound and The be
Te lic matherneuelie MK prison sentence. His victim was black. move a racial blas that can be penalty in the murder of a black since wag’ the
ike bake A Times Herald survey of capital detected statistically the new statute was enacted.in 1973, | nietble dh
Four days tater, 25-year-old Frank Uder and capital punishment in the The Times Herald’ study, the tiet but has sent 27 killers of whites to hao
‘Thorpe, who Is also black, was arrested nited Biates for the past eight years nationwide survey focusing on the race Death Row ally no de
in Des Moines, Towa. He was driving ws that a death sentence is still a of the victim, found that the killers of Nationally, experience shows that | ed the n
Kirby's car and was carrying Kirby's  Tandom punishment and appears to be whites are prosecuted more vigorously the killer of a white is nearly three | basis.
wallet reserved largely for the killers of than the killers of blacks and are being times more likely to be sentenced to The sts
Like Burks, Thorpe had committed Whites. put to death at 11 times the rate of death than the killer of a black in the | the 1985
murder during another felony — rob- New state laws, enacted in response _ those who kill blacks. 32 states where the death penalty has | and last f
bery. His offense, like Burks’, qualified to a 1972 Supreme Court decision that _In Maryland, for example, the killer been imposed lic opinio
him for the death penalty under Texas struck down capital punishment laws of a white is eight times more likely to A comparison of the capital murders | rules.
low. in 42 states as arbitrary and diserimi- receive the death penalty than the committed in those states and the sen- “We fe
Police charged him with capital natory partly because they were used killer of a black. In Arkansas, the like-  tencing patterns reveals that the killer | final. pro
murder, but he eventually was indict- _disproportionately against black defen- _lihood is six times greater. In ‘Texas, of a white has an 11.1 percent chance | Ron And
ed on a second-degree murder charge ants, greatly restricted the application five times greater. In Dallas, the dis- opportuni

and plea-bargained for a two-year

of the death penalty but did not re-

trict attorney has not sought the death

See DALLAS on Page 16

YU

Colombians panic, fear more eruptions

16-—-A Sunday, November 17, 1985, DALLAS TIMES HERALD s ©

RACIST JUSTICE:

DISCRIMINATION EVEN IN DEATH

Dallas murders of minorities draw lighter sentences

DALLAS — From Page One
of reaching Death Row. For the
killer of a black, the chance is 4.5
percent.

“The pattern is well-documen
éd, statistically and anecdotall
says Julian Epstein, an aide to
Michigan Rep. John Conyers, an
ardent capital punishment  oppo-

| nent, “It has always been discrimi-

natory, always been arbitrary. Last
October, a black man was executed
in Louisiana for murdering a white
store owner (during a robbery).
About the same time, in the same
parish, three white men were giv-
‘en 75-year sentences for the rape
and dismemberment of a black

teenager.

“If there's any pattern in the
process, race is the only pattern
that can be distinguished.”

Most capital murders involve
killers and victims of the same race.
But when the crime is interracial,
even greater disparities exist in the
sentencing. In Texas, for example,
‘a white is 12 times more likely to
get the death penalty for killing
another white than for killing a
black,

‘The ‘Times Herald study exam-
ined the race of the killer and the
victim in capital murders from Jan-
uary 1977 through December 1984
in states that are imposing the
death sentence. ‘The crimes were
compared with the racial patterns
of death sentences in those states,
‘Hispanics were counted as ‘'w
because that is the way they were
recorded in FBI data before 1980.

‘The survey identified 11,425 cap-

Dallas County's criminal Justice system exacts no uniform payment
for the dobts owed to It. Some killers may dia for their crimes. Others
will soon be paroled.

Statistics point to a fatent bias in the system, a bias that leads to
harsher punishment for tho killers of whites than for the killers of
blacks. No two crimes are Identical, and other factors come into play,

Two robberies

Case 1

The crimo: On Fob. 3, 1978, Ml-
chael Dean Mason, 26, was the
night clerk at a 7-Eleven store at
1004 W. Camp Wisdom Road. At
3:15 a.m., two men wearing sk!
masks and carrying small caliber
pistols robbed the store, taking the
cash tray and Its contents.

Mason apparently offered no re-
sistance, and the two men left the
store. Suddenly, one of them re-
turned and shot Mason once in the
back, just below the left shoulder
blade. Mason died 30 minutes later.
1 The charge: Capital murder. Property taken and value: One human
life; $234.02 In U.S. currency and $65 in food stamps.

The gunman was later identified as Larry Smith, 22, of 1614 East
Woodin St.

Prosecution: On Sept. 22, 1978, aftor a lengthy jury trial, Smith was
found guilty of the capital murder charges brought against him.

M1 The sentence: Tho jury that had found Smith guilty sentenced him
to die for the murder.

Larry Smith

The victim was white.

Similar crimes, motives, and violence: different punishment

but race appears to be the most consistent characteristic for distin-
uishing one case trom another.

Under Texas law, all of the following murders were committed in
circumstances that could have landed the killers on Death Row. Three
with white victims are awaiting execution. Three with black victims are
serving time.

Caso 2

Who crime: January 15, 1983,
was supposed to have been Ricky
Carroll's day off from his job at a
Shell gas station at 17088 Preston
Road. Instead, another attendant
called in sick and Carroll, 18, -
agroed to work the overnight shift

‘A fow minutes before 4 a.m., he
was found lying on his back in
shrubbery beside a sidewalk near
the gas station, shot three times In
the chest and once in the stomach,

Michael Dale Ferguson, also 18,
ios’ arresied tor the robbery-mur- Michael! Dale Ferguson
dor. The police prosecution report — the formal tiling of charges with
the district attorney's office — was terse and familiar
{Tho charge: Capital murder. Property taken and value: One human
lito; $43 In U.S. currency.
Prosecution: On Feb. 2, 1983, Ferguson was indicted on a reduced
charg of non-capital murder, a charge to which Ferguson pleaded

months later.

ntence: Ferguson was sentenced to 30 years in prison. He
will be eligible fer parole In 1993.

The victim was black.

was originally indicted on a charge
of capital murder. Later, the charge
was reduced to first-degree murder
and a jury sentenced ‘him to life in
prison.

¥ James Daniel Nelson, a 27-
year-old black man, was ‘charged
With capital murder in the June
1980 slaying of another black man,
20-year-old Christopher Johnson, at
Johnson's home on Grand Avenue.
‘A witness heard Nelson demand
‘Johnson's wallet just before shoot-
ing him with a shotgun. A grand
jury reduced the charge to first-de-
gree murder and Nelson pleaded
guilty. He received a five-year pris-
on sentence.

In those two examples of relative-
ly routine robbery and burglary ho-
micides — routine in the sense that
they involved lone offenders and
Jone victims and there was little to
distinguish them from dozens of
similar crimes ~- the one with a
White victim resulted in a life sen-
tence and the one with a black vie-
tim resulted in a five-year prison

term.

Not all defense lawyers believe,
however, that the system is
discriminatory.

“It (race) is not a factor," says Mel
Bruder, a veteran of many capital
cases. "It is almost irrelevant. ‘To say
that there is no basis for selecting
people for capital punishment re-
quires shutting your eyes to reality.”

Bruder argues that Texas’ 9-year-
old death penalty statute, which re-
striets the circumstances under
which capital punishment may be
sought, has “eliminated the possibili-
ty of arbitrariness" by narrowing

teense that is the way they were
recorded in FBI data before 1980.

‘The survey identified 11,4

| murders involving white vic
tims and 4,748 with black victims,

Of the ‘current Death Row in-
mates whase crimes were commit.
ted during that period, 1,265 had
white victims and 212 had black

ims.
‘Therefore, the killers of whites
had an 111 percent chance of be-
ing sentenced to death and the kill-
ors of blacks had a 4.5. percent
chance.

Ultimately, the criminal justice
system measures society's horror of
various crimes not only by the pun-
ishment demanded for them, but
by the vigor with which retribu-
tion is sought

The statistics suggest that
throughout the systern — from dis-
trict attorneys and grand juries to
the courts and trial juries — there
is evidence of greater public horror
when the murder victim is white

Of the capital murders identified
during the eight-year period, 30.0
percent involved black victims. But
only 14.4 percent of the Death Row
inmates were killers of blacks. Sev-
enty percent were white-victim
murders, but 85.6 percent of the in-
mates were killers of whites

‘The killers of blacks, then, are
being punished at less than half
the rate at which  black-victim
crimes occur, while the killers of
whites are punished at a rate that
is 15 percentage points above the
white-victim crime rate.

What we've got to do is rechal-
lenge the issue of capriciousness
and discrimination,” Conyers said.
“The '72 decision, in which the Su-
preme Court struck down capital
ptnishment as arbitrary, really
hasn't. changed anything. There
has just been a fast shuffle in the
| law. ‘The same terrible things are
still happening.”

In only seven of the 32 states
+ that have imposed the death penal-
ty does the race of the victim ap-
pear to have no influence on the
‘odds of getting the death penalty.
Colorado, Delaware and Nevada
had $0 few capital murders and

suich small Death Rew: pop

The sontence: The jury that had found Smuin guity sentenceU 11
to dio for the murder.

Tho victim was white.

Case 1

BiThe crlmo: Shortly after 2
am on Feb. 23, 1977, Dallas
police responded to a bur-
glary report at 6935 Santa Fe
Ave. When they arrived, they
found the occupant, 32-year-
old Larry Faircloth, In critical
condition.

He had been stabbed
sevoral timos in the chest by
‘an intruder he had caught
burglarizing his home.

Based on physical evidence
at the scene and the testimo-
ny of witnesses, police arrasted 23-yoar-old John Fearance Jr.
At first he was charged with attempted capita! murder. Then
Falrcloth died trom the stab wounds.
Tho charge: Capital murder.
Prosecution: Fearance, who had previously been arrested for
robbery, was represented by a court-appointed attorney. In Juno
of 1978, he went to trial and was ultimately found guilty.
HiThe sentence: Fearance was sentenced to death and awalts
his punishment on Death Row in the State Penitentiary at
Huntsvitle,

The victim was white,

Case 2

The crime: At 3:30 p.m. on Jan. 27, 1983, Jackie Patrick, 29,
telephoned a friend trom her home at 6120 Concerto Lane and
told him some "girls and some guys from across the stroet are
trying to break in." The friend called the police, who did not
respond for more than 30 minutes, Whon they reached the
house, they found Patrick lying In a pool of blood on the kitchen
Noor.

She had been stabbed to death and her house, which she
shared with her mother, had been ransacked,

Patrick had graduated from Bishop College and taught biology
and coached track at Lincoln High Schoo! before beginning a
new career selling mall order jewelry. Early in 1983, she had
been making plans to move out of her Oak Cliff neighborhood,
where burglary and vandalism were increasing.

After she was found dead, witnesses from a house across the
street told police that Gerald Leon Higgins, 22, and Ronnie Louls
Jones, 22, had gone to Jackie Patrick's house, armed with
knives, screwdrivers and wrenches, to break in and had returned
fifteen minutes later with blood on thelr clothing
BW Tho charge: Capital murder.

@ Prosecution: A grand Jury reduced the charges against Jones
to second degree murder, and Higgins was allowed to plead
auilty tn a laser charaa, tao,

John Fearance Jr.

M The sontonce: reiyuous was oemeney +
will be eligible fer parole in 1993.
The victim was black.

Case 1

BW Tho crime: In the middle of
the day in the middie of the
week, Jonathan Bruce Reed
raped and killed Wanda Jean
Waddte, an airline flight at-
tendant, in the bedroom of
her apartment at 7222 Fair
Oaks Ava. He bound her
hands with telephone cord,
slashed her broast and abdo-
men with a knife and stran-
gled her with a bedsheet and
a plastic bag.

Rood, 27, was still in the
apartment when Waddle's roommate returned home from work
He also assaulted the roommate, strangling her with a belt and
leaving her for dead after taking $20 from her purse, She lived to
testity against him

He was arrested six wooks later, on Dec. 16, 1978.

BThe charge: Capital murder.

(Prosecution: Jonathan Bruce Reed was tried on charges of
capital murder and was found gullty as charged.

The sentence: On Jan. 3, 1979, the jury sentenced Reed to
death.

Tho victim was white,

Case 2

|The crime: Some neighbors watched as 83-year-old Emma
McKee was assaulted by a young man in her home on Lawrence
Street In April of 1982. One finally called police, who found the
woman dead in her bedroom. Her gown had been pulled above
her waist and, according to a police prosecution report, she had
been raped.

had been trying to get her to move down here and stay with
1," says Luclilo Daniel of Kilgore, the murder victim's daughter.
“But sho didn’t Ike East Texas. She wanted to stay In Dallas.”

‘McKee had grandchildren In Dallas and had close friends In
the neighborhood. Despite her age, she was content to live
alone.

‘She was alone the night Kenneth Ray Briscoe burglarized her
house.

Neighbors told pollce they,had seen an assallant drag McKee
through her house, into the back yard and into the house again,
beating her with his fists. She died from the beating. A screen
torn from a side window indicated that Brisco had broken into
the house.

BB The charge: Murder. Although the murder involved a rape and
possibly a burglary, police did not file capital murder charges.
Prosecution: Briscoo eventually was trled for burglary of @
habitat

Jonathan Bruce Reed

Denanem Rricane wan a theaatima laser, he

sought, has “eliminated the possivin-
ty of arbitrariness" by narrowing
the death punishment process to a
smal) pool of cases most worthy of
it,

“What has evolved is a highly
selective process that is incredibly
constitutional,” he says. "Being very
selective means you are not being
arbitrary.”

‘The Dallas County district attor-
ney’s office is widely known for its
selectivity in pursuing the death
penalty and claims a perfect convie-
tion rate. Out of the 198 capital
murder cases filed by the Dallas Po-
lice Department from 1977 thru
1964, 12 cases were prosecuted and
12 convictions were obtained — all
resulting in death sentences,

“We have never asked for the
death penalty that the jury didn't
give iW” District Attorney Henry
‘Wade says, \

In part, Wade says, the selection
process is governed by the time and.
expense associated with a capital
murder case, as well as the circum-
stances of the case, the credibility of
the witnesses and the background of
defendants.

‘Too, there is a reluctance of pros-

ecutors to try cases they perceive as
risky.
“We can tell pretty well what a
jury will do. If there is any weak-
ness in a case if witness has a
criminal record or may be lying, we
don't go for it (the death penalty),”
Wade says. “A jury is trying to find
a reason not to give death, I don't
think there is any situation where
we wouldn't ask for death because
the defendant or the victim is
black.”

Wade says some cases involving
minorities are simply more difficult
to prosecute. Black-vietim cases are
not necessarily among them, he
says

“We get testimony of blacks rath-
er freely," he says. “The Mexican-
‘American cases are the most diffi-
cult to try. We have more trouble
getting (Mexican-American) wit-
nesses to testify. Some of them (wit-
nesses) are illegals, and we can't
find them.”

Defense laywers who have ob
served Wade's prosecitinn practices

sais oF getting the death penalty.
Colorado, Delaware and Novada
had s0 few capital murders and
such small Death Row populations
that they are almost statistically in-
significant. New Jersey, North Car-
olina, Ohio and Pennsylvania had
substantial numbers of capital mur-
ders and sizable Death Rows, but
there was little disparity in sen-
teneing in those states — either in
the chances of receiving the death
Penalty or in the proportions of
convictions in each victim-race
cate

Tn cach of the other 25 states,
however, the pattern was
consistent. .

Life and Death In Dallas

—pryp Killing a white in Dal-

las can be punishable
AUIHF by death, but nobody
\ UF dies for killing a black,
MAN and rarely is anyone

----4 put to death for killing
@ Mexican-American,

From the time a charge is filed
Until a final disposition is rendered,
the criminal justice system appears
to place a higher premium on white
lives than on black and Hispanic
lives,

‘The Times Herald's Dallas survey,
which traced 198 capital murders
from offense to jury verdict, indi.
cates that the killers of blacks are
treated far more leniently than the
killers of whites. Black-victim homi-
cides are derailed from the Death
Row track at each phase of the sys-
tem at a much higher rate than
white-victimn homicides. «

W Tho chargo: Capital murder.

guilty to a lesser charge, too.
Bh

The slain woman's mother,

The victim was black.

Where the death penalty is not
imposed, those who kill blacks re-
ceive substantially lighter prison
terms, and those who kill Hispanics
are punished even less severely,

“There has always been a pervep-
tion that black and Mexican-Ameri-
can lives were cheaper than white
lives," says Frank Hernandez, a Dal-
las attorney and former district,
court judge. “That perception stems
from the failure of the district ator.
ney to prosecute those kinds of
crimes. It is fostered in the commu:
nity at large.”

Most of the 198 Dallas murders
included in the Times Herald study
‘ocurred during the commission of
another felony, such as robbery,
Tape, burglary, arson or kidnapping.
A few involved the killing of a po.
lice officer or were murders-for-
hire. All qualified for the death
penalty,

Hispanics were counted as

| Prosecutlon: A grand jury reduced the charges against Jones
fo second degree murder, and Higgins was allowed to plead

intence: Jones was sentenced by a jury to 60 years in

prison. Higgins plea-bargalned for

was released on parole last month.
Louise Patrick, who still ives in the

house on Concerto Lane, says she still doesn't know why hor

daughter's killer did not recoive harsher punishment.“ si

know," she says, “I guess I'll never know.”

an elght-year sentence and

® Prosecution:
habitat,

was sentenced to life in prison u
statute.

Lucille Daniel nover understoos
receive tho death penalty.

are not really like they're suppose
The victln was black,

asl

Tho charge: Murder. Although the murder involved a rape and
possibly a burglary, pollce did not tile capital murder charges.
Briscoe eventually was tried for burglary of a

Tho sentence: Because Briscoe was a three-time loser, ho

“I thought he should have," she says, “but, you know, the laws

inder the Texas habitual offender

1d why her mother's killer did not

ed to bo.”

statistics, but
in calculating, average prison sen.
tences, Hispanies were treated as a
group Revause only one
Hispanic. resulted ina
death penalty, the average prison
sentence gave a broader measure.
ment of the disparity in the outcome
of the cases. With’ death and life
sentences counted as 99 years, killers
of Hispanics received average sen-
tences of 41.3 years; killers of blacks,
50.2. years, killers’ of whites, 637
years,
In tracing the 198 capital murder

cases filed by Dallas. police, the
‘Times Herald found that grand ju:
ries, which are guided by’ the dis.
trict attorney's office, reduced the
charges in 57 percent of the eases

in which the victim was black, and
in only 43. percent af the cases
h white victims

‘The grand juries declined to indict
in 125 pereent of the black-victim

ses, compared with 84 percent of
the white-vietim cases. After indict
ment, the district attorney's office
plea-bargained and reduced. the

charges it a higher percentage of
cases: with black vietims (8.2 per-
cent) than with white victims (676
percent),

Whore blacks: killed whites, the
grand jury returned indictments in
61 percent of the cases. Where
whites killed blacks, no capital mur-
der indictments were returned, and
Rone was prosecuted as capital
murder.

Although white-victim crimes
were 49 percent of the total identi,
fied from the eight-year period in
Dallas, killers of whites received 100)
percent of the death sentonces
handed down, a statistie that sug-
ests to some attorneys that the sys.
tem is at best arbitrary or at worst
irrational

“There is no rationality to it,” says

Kelly Frankeny / Dabhs Times Herald

Dallas defense attorney Tom

McCorkle, who frequently repre-
sents defendants in capital cases,
“It’s a lottery... (deciding) who's

going to pay’ for crime and who is
not.”

The term “lottery” often is used
by critics of capital punishment.

‘An analysis of how cases proceed
through the justice system indicates
that arbitrariness still exists in death
sentencing. And if the system is a
“lottery,” it appears that the game is
Nigged along racial lines,

Por example:

¥ William Thorneberry, a
year-old white man, was charged
With capital murder in the Septem-
bor 1981 slaying of Elizabeth Nelson
Jay, a 74-year-old white woman,
during a burglary of her home on
‘Tremont Street. A diamond and
ruby ring, worth $850, was missing
from the house. Jay was beaten to
death with a hammer. Thorneberry

19

ketung UMexican-americany wit:
nesses to testify. Some of them (wit-
nesses) are illegals, and we can't
find them."

Defense laywers who have ob-
served Wade's prosecution practices
over the years agree that the district
attomey's staff seeks death in only
the strongest cases,

“A capital murder case in Dallas
County,” lawyer Arch McColl says,
“is one that has three fingerprints,
three eyewitnesses and three confes:
sions. ‘They (prosecutors) don't
gamble."

McColl describes the statistical ev-
idence of racial bias as a “market-
place phenomenon," in which prose-
cutors ask for no more than they
believe juries are willing to give.

‘The Fact that the district attor-
ney's office has never sought death
{n'a black-vietim case, he says, re-
fleets the perception on the part of
rosceutors and police that juries do
hot take black-victim crimes serious-
ly enough to warrant the maximum
Punishment.

“If that is an accurate perception,"
McColl says, "then we have a racist
system,”

The perception may not be
accurate

Roy Harrison, who was foreman
of the jury in the 1980 murder trial
of Robert L. Burage, a 31-year-old
black charged with’ killing a 65-
year-old black during a robbery,
says the jury wanted to impose the
death penalty,

“The judge wouldn't let us." he
says. "We felt like it should have

See DOUBLE on Page 17

24s DALLAS TIMES HERALD, Sunday, November 17, 1985

RACIST JUSTICE: DISCRIMINATION EVEN IN DEATH

H

POLICE DEPT.
(Total capital
murder cases
filed from 1977
to 1984)

GRAND JURY
(indictments)

CASES
WHIT
wicrmas:

Major findings of the Times Her-
id survey of 198 capital murder
charges fled by Dallas police
from 1977 through 1964:

(The kilier of a white in the city
of Dallas has an 8.5 percent
chance of being sent to Death
Row. The killer of a black has
zero chance,

Not
Indicted

6
Reduced
charges

68 (47.9%) were Indicted
for capital murder.

Since the death penalty was
roinstituted In Texas in 1973, no
‘one has been sent to Death Row
from Dallas County for killing a
black. Twenty-seven defendants
have been sentenced to death
for kiting whites,
OF the capital murder charges
fled, grand Juries returned capl-
tal murder indictments In 30.4

Dallas rate of conviction in black victim crimes

>
sy
DISTRICT. Z
ATTORNEY s FS
(prosecution
of indictment nd
ee
10
Dismissed
4
Ploa
bargained

Of the 68, 12 were prosecuted
as capital murder.

victim cases,

in 69.6 percent of the cases,
compared to 52 percent of whito-

When capital murder Indict-
ments ware returned, the district
attorney's office plea bargained
for lessor charges or reduced the
charges prior to trial In 100 per-
cont of the black-victim cases, as.
opposed to 64.7 percent of

COURTS/JURIES.
(convictions and
sentencing)

OA%
Probability of
death sentence

Of the 12, all 12 (8.4% of all cases)
‘were convicted and sentenced.

black-victIm cases. Only one of
40 Hispanic-victim casea Identi-
flod In the study resulted in a
death penalty.

BAverage sentences imposed
through trlal conviction or plea
bargaining also showed a dispar-
lity basad on the race of the vic~
tim. With Ife and death sen-
tonces counted as 99 years, the
Timan Horst

Nature of crime
makes exception
to Death Row rul

On its face, it was the kind of
commonplace crime Americans
have become accustomed to read-
ing about; A man walks into a
convenience store in Bay City,
‘Texas, robs the clerk, kidnaps her,
rapes her, shoots her with .45 cali
ber pistol and leaves her dead on
a deserted road,

But nothing about the murder
of Loretta Jones was ordinary.
The degree of violence was ex.
traordinary. ‘That she was killed
by Donald Lee Vigneault was ex-
traordinary. ‘That he was sen.
tenced to die for the crime was
extraordinary,

Loretta Jones was black. Her
killer was white. That alone made
it a relatively unusual murder.
The foct that her killer received
the death penalty made the case
an even greater rarity,

Statistics compiled by the
Times Herald indicate that whites
face odds of roughly one in 17 of
being sentenced to death for kill-
ing blacks and, so far, virtually no
chance of that sentence being car-
ried out, Since the U.S. Supreme
Court ended in 1976 what
amounted to a four-year ban on
executions, 13 blacks have been
put to death for killing whites,
but no white has been executed
for killing a black.

According to FBI records, 2.5

on April 26, 1978,.
Vigneautt

Row. The killer of @ black has
zoro chance,

The doath penalty ts pursued
fn fewer than 10 percent of the
homicides that qualify for capital
murder prosecution, but It Is nev-
er sought when the victim Is
black.

UT Ine apna muroer erw~
filed, grand juries returned cap!
tal murder indictments in 30.4
Percent of the cases with black
victime and 47.9 percent of casee
with white victims.

Where the victims were black,
tho grand Jury dectined to Indict,
‘or Indicted on reduced charges:

Gnuryes pres se vee
cont of the black-victim cases, as
opposed to 64.7 percent of
white-victim cases.

{Trial Jurlos Imposed the death
ponalty In 85.7 porcent of the
white-victim cases that were
prosocuted, and In none of the

tim. With ite ana aeain sun
fences counted as 99 years, the
Times Herald found that the av-
erage sentence for those who
killed whites was 63.7 yoars; for
the killers of blacks, 50.2 years;
for the killers of Hispanics, 41.
years.

‘chris Buta / Oatlas Times Herald

Double standard on proof of bias

Courts reluctant

DOUBLE — From Page 18
been capital murder, but the judge
told ua the most we could give him

wa lite.”

Burage wea charged with capital
murder by the police. He was indict-
‘ed on capital murder, but shortly

race of the victim or the defendant.”

The Burden of Proof
“There is a long histo-
ry of race being a foc-
tor (in capital punish-
ment), and of the
‘Supreme Court saying
it should not be a fac-

tor,” says Atlanta attorney Robert

Stroup, who is currently fighting

the major legal battle to convince

the high couft that racism still un-
derlies the system by which convict-
ed killers are condemned. “There is
no doubt this is going on. The ques-
tion is whether this court is going to

evidence about victim’s color

to accept
ar.

t

for killing a black.

According to FBI records, 2.5,
percent of the “capital” murders
solved by police agencies between
January 1977 and December 1984
involved a white -killer and a
black victim. But only 1.6 percent
of the Death Row inmates whose
crimes occurred during that peri-
od were whites who murdered
blacks.

Conversely, 25.8 percent of the
solved “capital” murders — and
29.4 percent of the Death Row in-
mates — involved black killers of
white victims.

Whites who kill blacks, then,
are prosecuted and sent to Death
Row in proportionately lower
numbers than blacks who. kill
whites.

Fourteen states — Arkansas,
Colorado, Delaware, Indiana,
Kentucky, Louisiana, “Maryland,
Montana, New Jersey, New Mexi-
co, Ohio, Tennessee, Virginia and
Washington — had identifiable
white-on-black capital murders
during the eight-year period, but
none resulted in the death penal-
ty. Statistically, therefore, whites
who kill blacks in those states
have no chance of being sen-
tenced to die.

Even in states where whites
have been condemned for killing
blacks, the risk is relatively low,
In California, it is 1.8 percent,
compared with 6.1 percent for a
black who kills a white. In Texas,
it is 1.4 percent, compared with a
20.4 percent chance for a black
who kills a white,

‘The numbers and percentages
sketch only @ portion of the
picture,

‘The 24 cases of whites on Death
Row nationwide for killing blacks
reveal that the death verdict re-
sults only when the moat extreme
aggravating circumstances are
involved. .

In that sense, Loretta Jones’
murder was typical. :

“That woman died a horrible
death," says Doug Holland, a
Matagorda county investigator
who who worked on the case,

mgtiaraicide. te conltal

demn whites to death for killing
blacks was demonstrated in the,
case of Henry F. Hays, a membert
of the Ku Klux Klan, who was
convicted of kidnapping a 19%
year-old man off a street in Mo-!

bile, Ala, and driving him to
adjoining county, where he beat!
and strangled him to death. Hays!
returned the body to Mobile and,
hung it from a tree, :

‘The jury imposed a lite sett-
tence. Judge Braxton Kittrell in-
creased the sentence to death and:
received hate mail accusing him’
of being “white trash” and ‘al
“traitor” to his race. :

A white who kills a_black’ in!
the United States has a 6 percent!
chance of receiving the death:
penalty, higher than the 4.3 per~
‘cent chance for a black who kills!
a black. But, the statistical picture
may be distorted and the chances,
much less, Some of the 24 white:
inmates awalting execution for,
killing blacks also killed whites:

Michael Travaglia and Jolin’
Lesko killed a black police offiver!
in Apollo, Pa., as part of a five-;
day killing spree that includéd:
three other victims, all of whom:
were white. They shot the officer:
with .38 pistol has he approachéd:
their car after stopping them for a!
traffic violation. They were drWv-:
ing the car of a white man they:
had kidnapped, tortured ard:
drowned two hours earlier, °' |

v Norman Lee Newstead wise}
convicted of killing a black taxi!

Zisbichent ele ade buet

no doubt this 1s going on. ine ques
tion is whether this court is going to
do anything about it”

Stroup and the NAACP Legal
Defense Fund have petitioned the
‘Supreme Court to hear the appeal
of Warren McCleskey, a black man
on Georgia's Death Row for the
1976 killing of a white Aanta po-
lice officer during the robbery of a
furniture store.

‘The appeal is based largely on
McCleskey's claim that statistical ev-
idence shows that white-victim ho-
micides are more likely to result in a
sentence of death than black-victim
homicides and, thus, the system is
discriminatory.

‘The appeal is supported by evi-
dence developed by David Baldus, a
University of Iowa professor, who

cked murder indictments in
Georgia for a seven-year period
(1973-1979) and, with a complex
computer program that took into ac-
count 230 variables ranging from
the quality of evidence to the IQ of
the defendant, concluded that in mi-
drange cases, those with moderate
aggravating circumstances, the kill-
ers of whites were five times more
ely to receive the death penalty
than the killers of blacks.

‘The Times Herald study, which
Jooked at capital murders and Death
Row populations in all of the states
using the death penalty, found that
the killers of whites were nearly
three times more likely to be son-
tenced to death than the killers of
blacks. w

John Keatlng/ Deion Times Herald

Death Row inmates In Huntsville, surrounded by fences, take a break

‘The trial judge in the McCleskey
case rejected Baldus’ statistical evi-
dence, and a majority of the 11th
Circuit Court of Al concurred.
Writing for the majority, Justice
Paul H. Roney of St. Petersburg,
Fla,, did not deny the credibility of
the Baldus statistics but rejected the
use in a trial of such social science
research as "beyond the legitimate
uses for such research,”

“In evidentiary terms, statistical
studies based on ‘correlation are cir-
cumstantial evidence," Roney wrote.
“Where intent and motivation must
be proved, the statistics have even
less utility.

“A successful ... challenge would
require proof that the race factor
‘was operating in the system in such
a pervasive manner that it could
fairly be sald that the system was
irrational, arbitrary and capricious.”

But Roney went on to say that
McCleskey had failed to prove that
prosecutors, jurors and judges had
intentionally discriminated.

McCleskey's lawyers argued that
showing a discriminatory result,
rather than intent, should be sufti-
cioat to show that the system is ra-

cially biased, Some 1th Circuit
‘Court judges agreed.

“McCleskey does not have to
prove intent to discriminate in order
to show that the death penalty is
being applied arbitrarily and capri-
ciously," wrote Justice Frank M,
Johnson of Montgomery, Ala., in a
dissenting opinion. “Reliance on the
race of the victim means that the
sentence is founded in part on a
morally and constitutionally repug-
nant judgment regarding the rela-
tive low value of the lives of black
victims.”

‘Judge Joseph W. Hatchett of Tal-
lahassce, Fla., in a separate dissent-
ion, stated flatly: “The

di
stitutional, Two types of racial dis-
parity are established — one based
fon the race of the victim and one
based on the race of the defendant.
One can only conclude that in the
operation of this system the life of a
white is dearer, the life of a black
cheaper,

“To allow the death penalty un-
der such circumstances is to approve
‘8 racial preference in the most seri-

ous decision our criminal justice sys-
tem must mal

In its 1972 ruling in the Furman
va. Georgia case, the Supreme Court
struck down the existing capital
punishment statutes partly on statis-
tical evidence that blacks were dis-
proportionately targeted for the
death sentence more often than
whites, The five justices who sup-
ported the decision stated their be-
licf that the statutes were not ad-
ministered equitably and three of
them, ‘Thurgood Marshall, William
O. Douglas and Potter Stewart, spe-
cifically stated that the laws were
being used to discriminate against
racial minorities.

“If any basis can be discerned for
the selection of those few to be sen-
tenced to die, it is the impermissible
basis of race,” Stewart wrote.

When that opinion was written,
evidence that the system discrimi
nated against black offenders had
been accumulating for decades,
Attempts to show the discrimination
persists — based on the victim's race
= is a relatively new endeavor. and

See BLACK on Page 18

who who worked on the case,

In Texas, a homicide is capital
murder if it ocours during the
commission of any one of five fel
onies — robbery, rape, kidnap-
ping, burglary or arson. Vig-
neault's crime involved three of
them.

After robbing the 7-Eleven
store where she worked on April
26, 1978, Vigneault kidnapped
Jones, took her to his house and
raped her, drove her to a secluded
spot outside of town, raped her
again and shot her between the
eyes with a 45 caliber pistol.

Vigneault is currently the only
white Texas Death Row inmate
whose victim was black.

Whites are awaiting execution
for the murder of blacks in only
14 states, and in each case there
were high levels of what the law
refers to as “aggravating circum-
stances.” Sometimes there were
multiple victims, including whites,
Often the victims were children
or police officers. In two cases,
and in spite of extreme aggravat-
ing circumstances, the juries re-
turned life sentences, and the
death penalty resulted only after
the trial judge exercised his au-
thority to increase the sentence to
death.

‘The reluctance of juries to con-

+ Norman Lee Newstead was
convicted of killing a black taxi
driver in Tulsa, Okla. The driver
was having difficulty finding the
address Newstead gave him. They
stopped at a church and apparent-
ly got into an argument, New-
stead refused to pay the fare. He:
grabbed the victim by the
and shot him twice in the back of
the head. Newstead had previous-
ly killed three white people in
Utah and had a prior conviction
for kidnapping and robbery in’
Las Vegas.

Donald “Peewee” Gaskin, a”
diminutive killer described Hy
prosecutors as having a “cante-

loupe-size head with a lemon-alze
brain,” murdered about 35 inti-

viduals, including babies, before
he landed on Death Row in South:
Carolina with 10 murder convic- |
tions. An ardent racist, he once’
killed a white woman for having
sex with a black man, While on!
Death Row, he carried out the:
murder-for-hire of a black Mus-!
lim, He rigged a bomb in the vic- +
tim’s cell and detonated it by ma-{
nipulating wires strung acroas ‘a!
corridor. James Anders, a state!
prosecutor, said he once called |
Peewee a “back-stabbing, baby- |
killing, mangy cur” only to have |
Peewee reply, “That's the nicett !
thing anybody ever sald about}

me.

18—A_ Sunday, November 17, 1985, DALLAS TIMES HERALD + «+

RACIST JUSTICE: DISCRIMINATION EVEN

IN DEATH

|
!

=
“Ay

|

aT

Factors that lead to Dea

Study found
evidence of
racial bias

Major findings of statewide
studies by the Times Herald and
others:

In 1976, the Texas Judicial
Council examined the 74 capital
murder cases that had gone to
trial in the previous 24 years,
‘The council reported that the
death penalty was assessed in 16
percent of the cases with black
victims, but in 86 percent of the
cases with white victims.

¥ Defendants who can afford
to hire their own lawyers rather
than rely on court-appointed at-
torneys ran substantially tess risk
of dying for their crimes, the
council found. The conviction rate
for capital murder defendants
represented by court-appointed
attorneys was 93 percent, while
the corresponding rate for those
represented by retained counsel
was 65 percent,

¥ Once convicted of capital
murder, defendants represented
by court-appointed attorneys. re-
ceived the death sentence in 79
percent of the cases while defen-
dants represented by retained
counsel received the death sen-
tence in 55 percent of the cases.

A Times Herald analysis of
capital murder and capital pun-
ishment in Texas from i977
through 1984 found that a person
who kills a white is five times
more likely to receive the death
penalty than a person who kills a

crimes involved white victims, but
nearly 95 percent of the Death
Row population was sentenced for
white-victim murders.

In the past 11 years, nearly
300 death sentences have been

Jobe Keating /
An unidentified Death Row inmate talks with his family recently In Huntsville

police homicides reports for 1977-
1984, the Times Herald study
identified 479 white-victim capital
murders and 186. black-victim
capital murders in Houston. Dur-
ing that some period, Harris

year period of 1975-1978 and also
Tound that the race of the vietim
appeared to be a key factor In the
prosecutor's decision to seek the
death penalty. Police had charged
capital murder in 115 canes, Sher-

8 20.6%

178 346%

0 0% 821% 18474 12 31.6%
eee i ikuly oak te
122% 194 495% 119 20.3% 128 28%
o 0% 2 10% 7 35K 14_60%
TEE Re RE Se

81 34.1% 3 30.7% tJ 33% 5]

37.5% 18 45% AT 42.5% 11

a ee mal

% B O% 14m

0% 375% 1 26%

71 44% os 6% 19 OK 09 104%
120% 7 206k 16 47.1% 10 20.4%

Ei aera

¢ 10.0%

98 65.5%

0%

10 76.0%

2 6.4% |

Ses ey

penalty than a person who kills a
black.

© Nearly 21 percent of the cap-
{tal murders committed during
that period involved black vie-
tims, but only 5.3 percent of the
current Death Row inmates sen-
tenced during that period had
black victims.

Nearly 80 percent of the

800. death sentences have been
handed down by ‘Texas juries, but
only two were for crimes involv-
ing white killers and black vie-
tims, One of those white inmates
has since had his sentence com-
muted to life, leaving only one
white killer of a black victim on
‘Texas' Death Row.

Using FBI data and Houston

ing that same period, Harris
County sent 78 killers of whites
and six killers of blacks to Death
Row. Black victim capital murders
were 25.7 percent of the total, but
killers of blacks made up only 8
percent of those sentenced to die.
+ University of Texas law
professor Ed Sherman studied
Harris County-cases for the four-

capital murder in 115 eases, Sher-
man found, but the district attor-

* ney reduced the charge in all but
47 cases, Of those 47 cases, 65 per-
cent involved a black or Hispanic
accused of killing a white. The
death penalty was sought In only
32 percent of the cases involving
Anglo-on-minority or minority-
on-minority murders,

Black life worth less in Texas courts

BLACK — From Page 17

the McCleskey case in Georgia
would be the Supreme Court's first
opportunity, if it decides to do 90, to
hear authoritative arguments ‘on
that point.

Road to Texas’ Death Row

“There is racism in the
world,” says Texas
Civil Liberties Union

overt racism plays a part in any of
this, but there is something about
the gross numbers that causes you
to think race does play some role.”

Almost from the time Texas’ new
capital punishment statute went into
effect in mid-1973, the way it was
administered was scrutinized for the
kinds of flaws that caused the old
statute to be ruled unconstitutional
by the U.S. Supreme Court.

Is the method of choosing who
will die for their crimes still arbi-
trary? Does it discriminate against a
particular segment of society? Are
there factors beyond the legal issues
that guide the state's disposition of

Between 1977 and 1984, arrests
were made in 1,890 capital murders
in Texas, but only 169 of the current
Death Row inmates were sentenced
during that time, Does that mean
that the sentencing was arbitrary?
What distinguishes one killer

1% 73 00.4% a8 206%
O20 20714 ST |
Teds ik kOe cee
49 60% — 200 27.7h 200 2hO% 204 36.6%
Ce
AE hele arey
% 2 a om
Oe 0 0% 480%

15% 123 256% 181 97.7% 108 352%
12.4% M1 25% 10 964% ‘10 96.4%
- 2 Hore
be “

1K 221 300% 00 90.2% TH asTH
Oh AS UL2K 8 52.1% 8 1TH
a pps ah”
8 25% 99% 173 718% 90 16.1%
424% 2 40% 1 T8OK 77.1%
2.0% to 208% 417 43% ear Zo.am | that
10% 15 30% 7a 40% 10.20% | <Timinal matters?
a4 Wa 272% 181 07% _t07 079%
TT 4 103% 4 95.9% 1946. 1%
4o%4 118 04% 148 OT4% 118 dee
0% 716.3% 80 09.0% 8 13.9%

from another? Luck, economic sta-

David Martin

White White

479 white-victim capital murders
and 166 black-victim capital
murders, -

During that same period, Harris
County sent 78 killers of whites and
six killers of blacks to Death Row.
Black-victim capital murders were
25.7 percent of the total, but killers
of blacks made up only 7 percent of
those sentenced to die,

Harris County District Attorney
John Holmes dismissed the sugges-
tion that the system is more lenient
toward the killers of blacks than the
killers of whites or that his office is
influenced by those factors,

“I don’t even know what race
they are unless I happen to look it
up," Holmes said. “We don't seek
death simply for the exercise, We
seek it based on the facta and on the
background of the defendant.”

Still, the same statistical pattern
emerges in study after study. One
examination of capital murder cases
in South Carolina during a four-
year period:found, to the
‘Atlanta-based Clearinghouse on
Prisons and Jails, that proeecutors
sought the death penalty in 38 per-
cent of the cases in which a black
killed a white, but in only 13 per-

‘cent of the cases in which a white
killed a black,

‘Opponents of capital punishment
contend that the statistically appar-
ent racial bias is sufficient reson to
abandon executions altogether.

“It is not working to sort out the
worst people in society,” says La-
Marche of the Texas Civil Liberties.
Union. “There is a lot of subjectivity
involved (in) the most severe

tergmaroa wa Tok” 00 00s ora tH goa
anh Flow inmoies 48 @ 0% 710% 20.69.0% 6.139%

4 Golo murders 4800) 3.7% a00 160% 100 tom 001 240%

(epee wo 1 6% a AT% 69 50.0% 61 96.1%

aneh :

fell murdors M0 O% 0.0% 59 981%

} Dontwniowinmaice 00% oe 425%

F iginta i
‘pla murders S041 Te ow PT tt7 5%
Death Row inmates: cu 0% 4 12.9% 18 48.4% 12 38.7%.
Capit murders tay 8am OT eT 017%
‘Qoath Row inmates 5 9 0% o % 4 80% 1 20%

"Wyoming : :

api a I

Death Row inmales 900% 00% 9 100% 0%
Totole : : RTA

/ Copitel murders 10,179 a 28% 4ans 200H Tost BW AITO 254%

' Death Row Inmstes 1477 mh 18% 188 127% 831 56.3% SA DAK

1 Bak vet omic ‘Whito victien hornicides: 14425.

li Black victim inmate White victim inmates: 4,288 (11.1%),

bs inoia figures do not include 1984 crime stalstcs (6+ Chicago, because they'tiad not
‘boon reported to tha FBI's otfica of Uniform Grime Reports, rom which this data was
s{cotectod. Th missing statletics, perhaps a many as 200 felony ckcumalence murder,
‘deci the national totals but en analysts for tha Chicago figures for the previous seen
the ,omiaton aos breakdown

dialer that ot eighitcontly iter the racial

Jove £ Corbelint/ ates Thmes Herald

What distinguishes one Kier
from another? Luck, economic sta-
tus, geography and other non-legal
factors come into play. Some rural
‘counties are so poor that the cost of
‘a capital murder tria! is prohibitive.

But efforts to discern the logic
that sends some convicts to Death
Row and others back onto the
streets have invariably led research-
ers to racial influences and the high-
er value that the justice system ap-
pears to place on the life of a white
victim.

‘A 1976 Texas Judicial Council
study of the 74 capital murder cases
that had gone to trial in the preyi~
tour 2/4 years found that the desth
penalty was assessed in 16 percent
of the cases with black victims, but
in 86 percent of the cages with
white victims.

“Some disparity is tolerable when
you are talking about incarceration."
LaMarche says, “but it is not tolera-
ble when you are talking about put-
ting people to death.”

‘The Times Herald analysis of cap-
ital murder and capital punishment
in Texas from 1977 through 1984
found that a person who kills a
white is five times more likely to
receive the death penalty than a
person who kills a black.

Nearly 21 percent of the capital
murders committed during that pe-
riod involved black victims, but only

Robert Witle __White_White !

;

Dovid Martin White White,

5.3 percent of the current Death
Row inmates sentenced during that
period had black vietims.

Nearly 80 percent of the crimes
involved white victims, but nearly
95 percent of the Death Row
population was sentenced for white-
victim murders.

In the past 11 yéars, nearly 300

ith sentences have been handed

by Texat juries, but only two
were for crimes involving white
killers and black victims. One of
those white inmates has since had
his sentence commuted to life, leav-
ing only one white killer of a black
victim on Texas’ Death Row.

‘The Times Herald study shows
that the probabilities of a death sen-
tence in Texas by racial characteris-
tics of the crime are:

White kills black — 1.4 percent.

Black kills black — 2.5 percent.

White kills white — 9.5 percent.

Black kills white — 13.2 percent.

‘The ratio of Death Row inmates
to the crime rate in each category in

Texas, as in most other states, is
equally revealing: ,

‘The total number of identifiable
capital murders in the state. for

Slenmny Grey. ‘White White

(ates Times Herald

1977-1984 was 1,890. The number of
Death Rew inmates who were sen-
tenced during that period was 169.
‘This is how the crime rate, by racial
category, compares with the sen-
teneing rate:

White kills black —~ 3.7 percent of
the crimes, 0.6 percent of the in-
mates on Death Row.

Black kills black — 16.9 percent
of the ries, 47 percent of the
inma

White kills white — 55 percent of
the crimes, 58.6 percent of the
inmates,

Black kills white — 24.4 percent
‘of the crimes, 36.1 percent of the
inmates

Harris County prosecutors have
sought the death penalty more vig-
‘orously than any others in the state,
and nearly half of the current Death
Row population was sentenced from
that jurisdiction. Therefore, that
county offers perhaps the best op-
portunity to determine whether a
statistical racial bins exists in the
criminal justice system.

Using FBI data and Houston po-
lice homicide reports for 1977-1984,
the Times Herald study idenfitied

Union. “There is a lot of subjectivity
involved ... (in) the most severe
punishment that is irrevocable. Even
if you assume the morality of it, do
you trust the government to make
those decisions?”

A 2 Detninnlory Effect

banning the death

veaity in 1972, the
US, Supreme Court
1 dia ot ale it to be es-
sentially, unconstitu-

tional, only unconstit

tional in the way it had
previously applied. State legislatures
were told that death penalty stat-
Utes that removed the arbitrariness

could be upheld.
"The new slate laws, seeking to
avoid arbit make murder a

trariness,
capital offense only under specific
ireumstances. Although the law
varies {rom state to state, capital
punishment becomes a possibility
mest often when the murder occurs
during the commission of a robbery,
burglary, rape, kidnapping or arson.
Most of the state death penalty stat-
tutes also include murder-for-hire,
killing a police officer or firefighter
involved in carrying out official du-
ties, killing a prison employee oF in-
mate, or. killing someone during en
escape. A few states make murder

See UNBIASED 6a Page 19

RACIST JUSTICE: DISCRIMINATION EVEN IN DEATH.

DALLAS TIMES HEKALU, Sunday, November 17, 1485 A—1¥

Prior to the Supreme Court's
landmark 1972 decision striking
down state capital punishment
laws as arbitrary and discrimina-

Evidence mounts on influence of victim’s racé

Tn that ruling, the court relied
largely on statistical evidence,
amaged over four decades, that
twas starkly persuasive; Between
1930 and 1072, 54 percent of the
nearly 3,859 people executed were
black, although blacks constituted
only about 12 percent of the U.S.
Population, Of the 455 people exe-
cuted for rape, 405 were black.

‘The influence of the victim's
rece had been detected in some of
the pre-¥072 studies of capital
punishment, bat it was not devel-
oped as a legal argument because
of the inadequacy of available
data.

In 1977, two attorneys for John
Spenkelink, who would be exe-

killed whites; four percent had
killed blacks; two percent had vie-
tims of both races.

Spnkelink's attorneys failed to
convince the courts that the pat-
teth proved racial discrimination,

ye
Spenkelink virtually every study
focusing on the victim's race has
the same result:

In 1980, William Bowers and
Glinh Pierce, criminologists at
Northesstern University in Bos-
ton published findings from a

fendant waa 84 tines more likely
to be sentenced to death if his vic

Black: 0%
White: 11.19

percent of blacks arrested for kill-
ing whites reached Death Row.

Jane, Corbett / Detas Tienes Hered

the imposition of the death penal-
ty appears mythical. .

ties. “Among black victims, 2.1
percent were death penalty cases,

i

counted for the fact that the Ill:
ere of white victims recelved

death sentence five times more of}
ten than the killers of blacks, Th
race of the victim; he determirled}
was two and a half times mow
valid than any other variable tH
predicting the outcome of a caplj
tal murder case, "

% University of California tat
professor Samuel Grons and Rot}
ert Mauro, a doctoral candidate in,
Psychology, reported in 1903 that
their study of crimes and sentendy
ing in eight states (
Florida, Georgia, [inois, No

i i pi,

ties consistent with other gtudies!
“The discrimination that vw}
found is based on the race of the
victim and it ia a remarkably stay
ble and consistent phenomenon.!t
‘Their research centered on

than 17,000 homicides in the eightt
states between 1976 and 1980. ++

+ More recently, Michael Ra
delet and Glenn Pierce f
their research on the role of “peat
secutorial discretion” Im: homies,
cases, It is at that point in the ays,
tem — where police hand
cases to prosecutors — that
funnel narrows most sharply.
mining 1,419 cases in Florida

tims are the lerst likely.- C.
with white victims are rane

Northeastern University in Bos-
ton, published findings from a
study of sentencing in cee

Florida and Georgia “By far the
most substantial and consistent
extralegal basis of differential
treatment was race ... and
race of victim was a more promi-
nent basis of differential treat-
ment than race of offender.” In
‘Texas, they reported, a black de-

fendant was 84 times more likely
to be sentenced to death if his vic-
tim was white than if his victim
was black. In Florida, the ratio
‘was 37 to 1 and in Georgia it was
33-1.

¥ University of Chicago law
professor Hans Zeisel published a
report in the Harvard Law Re-
view in 1981 showing that in
Florida, during 1976 and 1977, 47

Unbiased justice
‘more of a goal

than a reality’

UNBIASED — From Page 18
by explosive or poison a capital

volved or the defendant's prior
convictions, and the defense is al-
lowed to offer “mitigating cireum-
stances,” such as a defendant's
youth or mental competency.

Some researchers contend that
the skin color of the victim has be-
come a Intent mitigating or aggra-
vating circumstance in the minds of
prosecutors and jurors,

Michael Radelet, 2 University of
Florida sociologist, and Glenn
at North-

charges less than capital murder.
‘That data, Radelet and Perce
wrote, demonstrate that “a criminal
justice system based on equality in a
society marked by vast inequality

tal murder.
In Arkanday a whlie who fills a
white has a 13.1 t chance of

In Georgia, 31.3 pertent of the
capital murders were white-on-
white, but 52.7 percent of the Death
Row inmat

black, but only 12.9 percent of the
inmates were sentenced for black-
on-black murders,

Showing such a discriminatory ef-
fect has been sufficient to sway the
courts in a number of civil rights
areas — school and housing segrega-
tion, for example. But in life-and-
death matters, the lower courts 90
far have been unconvinced...

percent of blacka arrested for kill-
ing whites reached Death Row.
For whites who killed whites, it
was 24 percent; for the black who
killed blacks, 1 percent; for whites
who killed blacks, 0 percent,

Also in 1981, University of
Florida sociologist "Michael Rade-
let reported on his study of 637
homicide cise in 20 Florida coun-

a white (in Georgia) has a 25 per-
cent chance of getting death and a
white who kills a black has a 5 per-
cent chance.”

A Handful to Dis

3] Until Gilmore's death

tice system for a de.
cade, The last execution had taken
place in 1987 — five years before
the Supreme Court officially out-
lawed the" practice — and the Unit-
ed States seemed to be joining most
of the other Western nations in

ties, “Among black victims, 2.1
percent were death penalty cases,
whereas 9.4 percent of the cases
with a white victim resulted in a
death sentence,” he wrote. “Both
white and black defendants have
a 12 pereent higher probability of
receiving the death penalty if
they are accused of killing o
white instead of a black.” Radelet
concluded: “Relative equality in

Tall, wire sericea tops by barbed wire keep prisoners In at the Huntoville pri prison

but no one has beén executed for
killing a black. Under the new stat-
Ute, six prisoners have been execut-
ed. Five wete blacks who had killed
whites and one was a white who
fhad killed a white.

‘According to the latest tally by
the NAACP Legal Defonse Fund,
there are 1,590 inmates on Death
Row in the United States, Because
only about 10 percent of the capital
murders in the United States re-
sult in death sentences, that leaves
nearly 16,000 others ‘who could
have been sent to Death Row but
were not. Many are serving time;
others already have been paroled.

David 2 Bie i

tne imposition ot the death penal-
ty appears mythical. .

¥ University of Iowa law pro-
fessor David Baldus, an authority
on the legal uses of statistics, con-
ducted the most exhaustive study
of the question in 1983, Weighing
250 variables in Yhe facts sur-
rounding thousands of

do-well, is nerving life in Texna for

‘a black child in Lubbock
County in 1978 for no apparent
reason.

Tt is that selectivity that makes
the racial factor, whether it pertains
to the offender ot the victim, trou-
blesome to death perialty opponents,

“Sure, the people on the Row
committed horrible crimes,” Broady
says. "But there are people off the
Row (eerving life or leser sen-
tences) who committed crimes that
were just as horrible. This is not
something the courts can continue to
ignore or something society can con-
tinue to ignore. When we are talk-

tims are the jeost uxery:

eens

with white victims are more

rae eed
ides are’ lgniteantly",
micides are.“ :
jowngraded"”

charge filed by police’

than black on black cases.

How

® survey
was done

picture of crime in

ing the olght-year pertod

victims were often “downgraded” to
charges leas than capital murder.
‘That data, Radelet and Pierce
wrote, demonstrate that “a criminal
Justice system based on equality in a

and caves with UK — CHOWINY such a dienmunmury
fect has been sufficient to sway the
courts in a number of civil rights
areas — school and housing segrega-
tion, for example. But in life-and-
death matters, the lower courts so

reality."

Some prosecutors argue candidly
that the statistics show a racial dis-
Parity simply because the murders
of whites are, per se, more heinous
than the slayings of blacks.

“There are more serious aggravat-
ing circumstances when the victim
white, and more mitigating circum
stances when the victim is black,
says Arizona Assistant Attorney
General Crane McClennan, who re-
jects the statistical evidence of rac-

ism in the

He poved a challenge to the re-
searchers: “Describe one case any-
where where the decision to go for
the death penalty was based on
race, ‘They have never shown one
single case where the outcome de-
pended on race. There have been 22
cases that addressed that issue. In
only two cases have the courts: al-

do not show discrimination.”
‘As McClennan claims, the studies

‘showing discrimination based on the

race of the victim may not

conscious oF

society marked by vast inequality
remains more of a goal than a

ar have been unconvinced.

“Unless we show that there was a
racist intent, we are out of court,”
says Henry Schwartechild, director
of the American Civil ‘Liberties
Union. “It is not enough to show the
results,”

Schwartzchild, like many other
capital punishment opponents, be-
lieves the courts are reading the
public opinion polls and are not like-
ly to change directions on the issue.

“Given the mood of the culture,”
he says, “they are not going to deal
with it differently."

Over the years, as violent crime
has ascended in the United States,
polls have shown a growing public
‘acceptance of the death penalty. A
Harris poll early in 1977 — one
month after Gary Gilmore was exe-
cuted in Utah — found that 67 per-
cent of Americans favored capital
punishment. By autumn of 1982, the
favorable response had grown to 77
percent, according to a Gallup poll.
Last January, a poll by Media Gen-
eral and the Associated Press found
an 64 percent favorable rating

“That is justice to the
mob," says Richard Broady, research
director for the National Association
for the Advancement of Colored
People Legal Defense Fund. “True

prove
intentional discrimina-

Not only do the numbers reveal

justice is even-handed justice, It is
not even-handed if a black who kills

tae eyout iw a uc
cade, ‘The last execution had taken
place in 1967 — five years before

the Supreme Court officially out- po

lawed the practice — and the Unit-
ed States seemed to be joining most
of the other Western’ nations in
‘abandoning death as a punishment
for crime.

Even after Gilmore's execution,
the death chambers of state prisons
were reactivated slowly. Eleven
men were executed in the first sev-
en years after the Supreme Court,
in 1976, allowed death sentences to
be carried out under new guidelines.

But by 1984, with legal barriers
cleared and public opinion support-
ing the practice, the country's Death
Row populations were growing by
more than 200 a year, Electric
chitirs, gas chambers and lethal in-
fection halls were revving up with a
fury unmatched since the early
1960s.

There have been 38 executions in
the past 23 months, bringing the to-
tal to 49.

Judging by the race of those exe-
cuted, it would appear that the pre-
1972 practice of discriminating
against black offenders has been
eliminated. Thirty-two of the 49
were white, 17 were black,

However, when viewed according
to the race of the victim, the dis.
criminatory effect remains. Forty.
five of those put to death had killed
whites and only four had. killed
blacks,

In Georgia, 45 percent of the capi-
tal murders involved black victims,

murders in the United States re-
sult in death sentences, that leaves
nearly 16,000 others who could

wve been sent to Death Row but
were not. Many are serving time:
others already have been paroled,

David Bruck, a Columbia, 5.
attorney who handles many capital
murder cases and has published arti-
cles about the influence of race on
the criminal justice system, believes
that rather than eliminate discrimi-
nation, the highly selective system
only amplifies it.

The selection process, Bruck
points out, begins when the arrest-
ing officer can decide whether to
file a homicide as capital murder or
something less. The grand jury has
options in how it indicts, the district
attorney has discretion’ in how to
prosecute. A fury can acquit. It it
convicts, a higher court can reverse
the verdict. If the verdict stands, the
governor can commute a death sen-
tence to life,

“In the end.” he says, “a mere
handful are left to die.”

‘That handful is chosen with a
high degree of subjectivity. The
slate may take the life of a criminal
who kills during a robbery, but it
does not take the life of most crimi-
nals who kill during a robbery.
Sometimes the most heinous mur-
derers are spared, and lesser villains
are put to death. John Spenkelink, a
white drifter, was executed in Flori-
da in 1979 for killing another white
drifter who had sexually assaulted
him. Phillip Brasfield, a white ne'er-

Row (serving life or ieser sen-
tences) who committed crimes that
were just as horrible. This is not
‘something the courts can continue to
ignore or something society ean con-
tinue to ignore. When we are talk-
ing about which people we are go-
ing to kill, society has a greater
‘obligation to decide on some basis
besides the flip of a coin.”

In state after state, the statistics
suggest that race is the dominant
basis on which the decision is made.

Bruck also believes the Supreme
Coutt may reject the argument that
the victim's race influences punish
ment, at least until public opinion

“This is something the American
people are going to have to make a
decision about,” he says. “The court
is not going to save us from our own
folly.”

‘Many lawyers agree, even those
who support capital ‘punishment.
Says Dallas attorney Mel Bruder:
“It is not a legal question. It is a
moral question that involves the
law.”

‘To death penalty opponents, the
arbitrariness revealed in the racial
statistics makes the best argument
‘against death as publie policy,

“The government is a very inap-
propriate agent to decide who ought
to live and who ought to die,” says
the ACLU's Schwartzchild. “We
‘cannot demonstrate that it (capital
punishment) does us any good, It
can demonstrated that we do it
very badly.”

Kentucky, allow executions . ig
murders involving miper attacks,
poison or or explodive uh
The FBI data give a distindt
Sout ae
\,

ment patterns,
compiled the first nationwide sug
vey of Death Row that identified
not only the race of the convictetf
killers, but the race of their vid!
tims as well. ‘
Although the Death Row
populations do not reflect all
death sentences handed dowh
(some sentences are reversed,
commuted, overturned or other
wise set aside each year) several
experts said they do provide a sta-
tistically valid sample of sentenc'
Ing tn each state, "
To determine the race of the
vietim of each Death Row inmate,
a variety of sources was used: lo-
cal police and sheriff's offices,

Civil Liberties Union provided in-
formation on the victims. :

v

7

eRKER COUNTY, Tu. ~ Commutations,
=

of | AND the oo DOUBLE LOG ‘hatin , : 89
y 7

a \ onan man and property owner in Weatherford, who was hanged
by unknown men during’. the Civil War because of political prejudice.

‘The hanging of four-negroes was another heartless. case, which
eccurred during the. Civil,.War, just after Lincoln’s proclamation giving
them freedom. The report is that a negro was found in some you
ladies’ room—perhaps trying to steal something. The feeling agajnst
the negro was fervent.’ A mob took him and three others and hanged
_them to the cross beam-over the public well in the court yard; then
dropped them one after . another from the beam into the well, ‘so
reported W. R. Turner, for many years a prominent citizen of Weather- ,
ford. The well, being public, many citizens of the town got water there.
It was soon found that there was an obstruction in the well and people
could not get drinking water. The negroes’ bodies could have been
removed but some of the-most fastidious would not have relished the
water;'so the well was filled up and another dug nearby. . Spee

Some 35° years 280, people with fine taste discovered ‘that the
public well had “mineral: water” in it, thought to be of healing quali-
ties, and because thereof used it freely. Later it was discovered that
ie the sewer pipe leading from the jail to Town Creek across the court
OP ote yard had sprung a leak.‘ After a thorough examination by expert tast-
. F ers, the health officers: pronounced it unsanitary and not good for
drinking purposes. The Commissioners’ Court took the matter under
advisement and after much deliberation decided that cleaning out the
well would not remedy the matter as the earth was so saturated that
ig could not be gotten rid of, so they filled up the second well and had
another dug, the water of which was pronounced wholesome. It, too,
has been abandoned, and our water supply now comes from cased-off
wells, 400 feet. deep down to the Trinity sands.

FIRST LEGAL EXECUTION IN COUNTY

The first legal execution in the county was in the spring of an a?
_ A negro, Joe Williams, was hanged for murdering a peddler about one S Ed
mile southeast.of Weatherford. For lack of better conveyance, a farm
wagon was pressed into service, to which was hitched a mule and gray
horse. The negro wasjplaced atop his own coffin beside the sheriff,
-and they drove cne mile west to the place of execution, followed by a
long procession of curious men and boys of town and county. The
improvised scaffold consisted of two green forks set firmly into the
ground with a pole acress between them, such as farmers use in the
present day in. butchering hogs. The farm wagon was driven under
the pole, the hangman’s knot was adjusted about the negro’s neck, the
rope drawn over the beam, and at the command of the sheriff, “Get
up, Gray,” the negro was suspended in the breeze. The boys not only
saw the negro as he dangled there then, but saw him in their dreams
at night for many months later. T. U. Taylor, now of the University
of Texas, was an ll-year-old boy witness to the scene.
\ William Burton was given a death sentence in the early part of

1880 for murdering Jack. Rush, growing out of a dispute over the city”
election. Two days prior tothe date set for his hanging, his sentence
“was commuted to life imprisonment. After serving seven years, he was
pardoned. © te
: The next legal execution was that of J: B. Cason for killing an :
robbing L. F, McLemore, ut six miles southeast of . Weatherford.
"He was hanged May 22, 190: *
Bob Stephens was given a death sentence for murdering George
Steelman. A scaffold was erected, but his sentence was.commute to
life imprisonment, later he was pardoned. The date fixed for his
xecution was June 20, 1893.

“Wayne Todd was also assessed the death penalty for killing
Jimmie McNeal. His sentence was commuted to life imprisonment.
‘Date for execution was fixed. June 21, 1923, Commuted June 19, 1923).

dd the parole and was returned to the

ea

io bik [Ue

e new assistant to the Attorney Gen-1 tin, arrested here 1 hoy Uialkea sates
peral, “3M. D. Purdy, successor of W! | i osfiay 2
‘A.Day, who had charge of the in - | Marshal Chandler on the charge-of being.
tom-made by the Department ‘of Justice /in ‘the country iMegalty,. $s: sald by. the
Yast Spring, will be placed in charge of | Federal authorities to be an Anarchist of
the ‘prosceution.. The United| States Dis-{ fnternational reputation and a leader of
{2ict Attorney at Bt Louta, Col. Dyer, han! ne of ‘the largest bands of Anarchists
youde.a report on the situation to-the -At- | 1a thie part of.the-country. The officials
|terney: General, and taken ateps to bring AY. that™ Czolgoss, who assassinated

“Phe traffic situation at St. Louls has no} | Several boxes of rabid’ Anarchist Mter-
Feraliel in this country, Under manipu-|Sture ‘were found in the apartments oc-
Sation: of “the bridges by the Morgan, | cupled by the woman. - She is sald to‘be
(Gould, ahd other interests powerful in/# native of Briinn, Moravia, and the wife

tithe railroad and Dusiness world every ,of en Anarchist editor. It is charged that
“| passenger ‘that. enters St. Louis :over the ;2D€

~was convicted of perjury in her native
‘Minalsestppi pays tribute to the extent of foFN several years ago and that abe fled
f¢p.america to gacape punishment... ~
| For. about. two. years ‘Secret. Bervice
yh searching for her with
we her deported. She ts

the authorities to-day.- <0 ie
‘Warhington officials have ‘been notified

stantly’ guarded: ‘that the tendency to.

G's moth-j Merger"had Been “decided upon. for:-the | cyramit these frightful crimes 1s

a a 4
‘that. thé Attorney. General is of | among’ the - blacks. - and. must be

‘atopped.. everr if it\'s necessary to. wipe |

nt Practically for Last.Yeair's|
*: Measure; He:Declareso |
st yee ea
5 WASHINGTON,” Oct. ° 6, :
[Townsend bill;-which was passed by. the, tearing: down’ the: brand-new: fron and
‘House:Jast session. and is pigeonholed in: masonty~ bridge~. ‘the: Rahway. Valley.
~ Elicins’s ~deak: im the room® of]

Senator:
ejthe: Senate. Committee | on. Inter-State} wood Avenue. ‘The'Job was-Cone-neatly

{ Commerce, ‘1s almost the. rate: «measure j and unostentatiously by = gang. of work-
-men,. ‘with: the assistance of ‘the’ steam
 aDhe: bridge -was torn down. beoause-the
‘company bad-put it sup, without .permis-
gion and 'an° ‘could -not. be-se~|

about “indictment: of the pee eg ee ‘McKinley, was _ member ‘of |

Peron vy - gsp

But the boys didn‘t-come on.

they, were almost suffocated bythe fumes:

breath. ~ z, : page

“What is It?" Muher managed t0 ak,
breathing hard and rubbing his eyes:

* We're.” pizened, sure,” : -eputtered
O'Rourke, one of his patrolmen, stuffing,
his handkerchief Into his. mouth and re,
treating down ‘the stairs... - e

‘The othera-followed suit.” Tears “were.
streaming ‘down. thelr faces and, thelr
breath ‘came in gasps. ~~ S

front windows: ‘they had tun
with the police: ee ae

“'Ten-wnd the count; you're put,” cried
Bei eonts 2 :

“Ring for the-Fire Department. Turn on
the hose,” "wan another's taunt.

Maher, howevér, was. determined and
quickly” recovered himself.’ “Come -on,
doys.” ‘he, cried “again, “we'll .get "em
yer eee sy

another...

‘atalrs to the roof. ‘Then, followed by. his’
‘patrolmen, he ‘climbed - down. the” fire-
encape to the back ‘windows-of ‘the room,
and: after: ‘a’ moment's. work; with'axe

[drawn holdings’ crowd: of “eighty:

| nuadied tn one of the big rooma: set
‘The police on-investigating: found that}

‘the ‘door which bed. been’ amashed ‘was

hey fell] 2%

of ammonta..- All of them’ gasped ..tor;#

In the sueantime some-of the men In the!
falleged. pootroom: had gathered. at-the| .

‘Take ‘em to the Morgue.” called out |

He ran to the adjoining house ‘and :up- | ”

and hammer he got in. ‘There ‘he found}.
ihe: two-detectives’ with thetr revolvers?

back in disorder, Maher with them. ¥or 4riven tn, ‘Tennent: got out
as they made acrush Into the jrestibule|

‘East :Bixty-aeventh Street #4
[he eee Jocked-up:oa '@- #0
| of momfetdes 5°".

- 25 MENTIN

BURNIN

‘Bad -weathets
which wascenmie:
Comat:

William J Winslade, Php, ID.
and Judith Wilson Ross

CHARLES SCRIBNER’S SONS
New York

Copyright © 1983 William J. Winslade and Judith Wilson Ross

Library of Congress Cataloging in Publication Data

Winslade, William J.
The insanity plea.

1. Insanity—Jurisprudence—United States.
2. Criininal liability—United States. 3. Trials
(Murder)—United States. I. Ross, Judith Wilson.
Il. Title.
KFo242.W56 1983 345.73'04 82-42650
ISBN 0-684-17897-4 347-3054

This book published simultaneously in the United States of
America and in Canada—Copyright under the Berne Convention.

All rights reserved. No part of this book may be reproduced in any
form without the permission of Charles Scribner’s Sons.

735793113151719 F/C 2018 1614 12 1086 42

Printed in the United States of America.

158 ROBERT TORSNEY

tic and Statistical Manual a statement about the difference
between psychiatric and legal concepts of mental illness, If
juries are to be permitted to hear psychiatrists, they should
also be instructed about those differences,

If racial motives lay behind Robert Torsney’s insanity
acquittal, the jury was at least able to hide behind a belief that
the acquittal would result in “hospital punishment.” Had they '
voted an insanity acquittal in the face of testimony by the
state department of mental hygiene psychiatrists that Tors-
ney needed no treatment, was not dangerous, and would be
immediately released, they still might have voted for the in-
sanity acquittal. But then, there would be no question of their
motives. The insanity defense provides a shield for jurors to '
hide behind in such instances. ‘

The inconsistent and conflicting concepts of the insanity} ,
defense also provide easy excuses and exits for defendants like :
Robert Torsney. He went home after two and a half years of! |
legal involvement. His plan was to go to court in order to, jl
appeal his dismisal from the police force, to recover his back, |
pay, and to be granted a $15,000-a-year medical disability
pension. He had learned how to use the legal system and, like
anyone with a surprise jackpot, he was right back for another
try to beat the odds—and to defeat justice,

JAMES GRIGSON

The “Hanging Psychiatrist”

VER THE PAST ONE HUNDRED YEARS, PSYCHIATRISTS, PSY-

choanalysts, psychologists, and others in the mental .

health field have been thrust further and further into every
aspect of our public and even our private lives. If they are not
the principle decision makers, they are likely to stand next to
the presiding officer, making official recommendations. Be-
cause life is hard, society has designated mental health practi-
tioners as the experts on all of life’s problems.

You want a divorce? The court or your attomey will
refer you to “counselors” who can decide whether yours is a
truly hopeless case and where you went wrong. Does someone
think you’ye been acting a little unusual lately? A psychi-
atrist, in a brief exam, will decide whether you are likely to be
dangerous to yourself or someone else or perhaps whether
you just need treatment, Do you want to be a policeman?
Liberals urge you to have a psychiatric exam. Do you want to
tun for president? Senate? Congress? Many in the therapeutic
community urge that all candidates for public office have psy-

159

160 JAMES GRIGSON

chiatric exams and that the results be made public prior to
elections.

It would seem to be an impressive safeguard to have
these mind specialists (33,000 psychiatrists in the United
States, with Los Angeles and New York City having more
than their share) checking out our character, personality, and
rationality, and making sure that things stay on an even keel.
But it doesn’t work.

Both within the field of psychiatry and within the medi-
cal profession, there is continuing argument and disappoint-
ment about psychiatry’s failure to be sufficiently scientific.
Occasionally, a well-known, highly respected psychiatrist will
acknowledge that’ the practice of psychiatry not only is but
should be more an art than a science. But that is not a
popular point of view among members of the profession. The
development of new drugs and the hope and belief that
mental disorders will be controlled eventually by physio-
logical-chemical intervention have given new hope for the
scientific status of psychiatry. But initial discoveries have not
led to accurate and predictable treatment models, and drug
treatment, in most cases, is trial and error, often with regard
both to a specific drug and specific dosage.

But if psychiatrists have had difficulty gaining the respect
they feel they deserve from the medical community, as well as
from society, they have been eminently successful in gaining
access and decision-making power in many social institutions
and legal forums. In many public settings, the psychiatrist is
viewed as the expert on sanity and responsibility. Psychiatrists,
however (and allied mental health professionals), while
not reluctant to offer themselves as official societal problem
solvers, have begun to backtrack in at least one area.

Lawyers and psychiatrists, more often than not, have
been at war with one another, but they have made some
temporary alliances in order to try to keep psychiatrists from
presenting their opinions in some criminal trials. The Ameri-
can Psychiatric Association has decided it should withdraw

#
:

eRe nee

The “Hanging Psychiatrist” 161

some of its aid to the courts. It has done so while admitting
and insisting on its inability to know enough about the human
mind to offer proper or justifiable expertise. It is a new sound
of humility. Some have suggested that this retreat acknowl-
edges a new realization by psychiatrists that they had over-
stepped the boundaries of their knowledge; others suggest that
it is a single-issue retreat bound up with the fact that most
psychiatrists oppose capital punishment; still others—more
cynical psychiatrists—argue that it is an economic action of
self-interest in which psychiatry is prepared to give up its role
in one small area in order not to be held legally liable and
financially responsible for the same role in a much larger area.

The focus of these concerns is a Texas psychiatrist
named James Grigson and the case of Estelle v. Smith. One
night in September 1973 Emest Benjamin Smith, Jr., and
Howie Ray Robinson held up a convenience store in Dallas,
Both Smith: and Robinson were carrying guns. During the
holdup the cashier made a sudden move. Smith saw the move
and fired his gun, yelling at the same time, “Look out, Howie”
(or something like that). Robinson then fired his gun straight
at the cashier, The cashier fell to the floor and the two robbers
cleaned out the cash drawer and fled.

A short time later the Dallas police caught up with the
two men and charged them both with felony-murder, Such a
charge is one designed to discourage any criminal activity that
might result in death. In essence, if anyone takes part in a
felony, during which or because of which someone dies, that
person is guilty of homicide. Thus, if three people attempt a
bank robbery with a cap pistol, and a bank patron has a
heart attack and dies while the robbery is going on, the rob-
bers are all liable for homicide. Similarly, if someone drives a
murderer to his victim, the driver is as guilty of the homicide
as the one who did the killing—eyen if the driver never left
the car or saw the victim. The logic of the charge is that if it
had not been for the lesser crime, the death would never have
occurred and, therefore (1) all the participants are as guilty of

162 JAMES GRIGSON

the person’s death as if they had specifically and personally
caused it to happen, and (2) they are equally responsible re-
gardless of who (or what) actively caused the death because
they acted as a group or as a unit in committing the lesser
crime. -
Smith and Robinson were tried separately on felony-
murder charges. Because a death sentence is possible on such
a charge, the judge in the case ordered Smith to submit to a
competency evaluation, even though no one, including
Smith’s lawyer, suggested that Smith was anything but com-

petent. When the competency hearing became a problem later .

on, the judge explained that he ordered the hearing simply as
a precaution, because he didn’t want anyone complaining,
especially if Smith were found guilty and sentenced to death,
on appeal that the defendant was too crazy to have pattici-
pated properly in the trial. He was, in his view, simply practic-
ing a little defensive judging.

The order was made over the phone and a cout-
appointed psychiatrist undertook to perform a competency
evaluation on Smith, The doctor appeared at the county jail
where Smith was being held and spent about ninety minutes
with the alleged murderer, He explained that he was a psychi-
atrist and had been asked by the judge to evaluate Smith’s
competency to stand trial. Smith was polite, pleasant, and
responsive, and cooperated fully with the psychiatrist, During
this time, the doctor conducted a five-part exam: (1) general
appearance and behavior, (2) production of thought, (3)
affect/mood, (4) content of thought, and (5) orientation to
time, place, and person.

The general appearance segment, according to the
doctor, was “simply observation of how the person walks into
the interview room, the way they sit, the attention or lack of
attention to personal appearance.” In particular, the doctor
used this information to determine whether the person was or
seemed depressed, agitated, or anxious, The “production of
thought” segment inyolved having Smith talk, after which the

The “Hanging Psychiatrist” 163

doctor decided whether he made sense, whether his thought
was linear, or, conversely, whether it was confused, circular,
or obsessive, The affect/mood evaluation attempted to deter-
mine whether how Smith talked about something matched the
subject of his talk. Thus, when talking about a pleasant expe-
rience, the person’s voice and physical demeanor should reflect
the positive quality of the experience. In the “content of
thought” segment, Smith was asked about his past and
present. The final segment, the “orientation,” attempted to
determine if Smith knew who he was, where he was, when it
was, and whether he could focus, concentrate, and remember
from moment to moment what was happening, On the basis
of this five-part test, the psychiatrist sent a letter to the judge,
indicating that he had conducted the examination and had
found Emest Benjamin Smith, Jr., competent to stand trial.
Smith’s attorney was never informed by the court or by
the psychiatrist that this competency evaluation had taken
place. If he had known, he might have attempted to stop it, or
he might have insisted on being present during it, Or he might
have taken it at face value and let it happen just as it did.
What harm could a competency hearing do to Smith? Any
statements he made about the crime itself could not be intro-
duced as evidence in the trial, and if he were found incompe-
tent, he wouldn’t have to stand trial, But the attorney knew
there was no question of Smith’s being found incompetent,
During the trial Smith’s attorney was given a list of all
the witnesses the prosecution expected to call, as was required
by law. He was also given access to prosecution files on
the case. It was in these files that he found a copy of the
letter stating that Smith was competent to stand trial. He
could not have been happy to find that the evaluation had
been conducted by Dr. James Grigson, the Dallas psychiatrist

the press was fond of referring to as “the hanging psy- -

chiatrist” and “the killer shrink.” The attorney checked the
witness list. Grigson’s name was not on it, neither as a witness

in the guilt phase of the trial nor in the penalty phase, so the

AMA

ALAB

-

SHY GF

Oi

164 JAMES GRIGSON

attorney probably thought that the competency hearing could
not harm his client.

Under Texas law, a case that might result in the death
penalty is tried in two parts, in what is called a bifurcated
trial. During the guilt phase of the trial, the jurors decide
whether or not the defendant is guilty. If they find him guilty,
the penalty phase is then held, in which they decide on the
basis of additional evidence whether to order the death
penalty or a term of imprisonment. In order to decide for the
death penalty, a Texas jury must consider three factors:
(1) whether the murder was deliberate; (2) whether the de-
fendant’s conduct was unreasonable in response to the provo-
cation;-and (3) whether the defendant is likely to repeat his
violent deeds in the future. If the jury answers “yes” to all
three questions after they have heard the additional evidence,
then the death penalty is automatic, If all three are answered
no, then only a prison sentence can be given. ;

Smith was found guilty in the first phase of the trial,
which was not a great surprise. His attorney's hopes were
pinned on the penalty phase, Smith had several things going
for him. First, his only previous conviction had been for pos-
session of less than an ounce of marijuana. He had been
charged with some other, more serious crimes, but since he
was never found guilty, those charges could not be brought
before the jury in this trial. Second, Smith had not done the
actual shooting. Third, although he had been carrying a gun,
the weapon had misfired and there was some evidence that
Smith knew the gun was defective. There was conflicting testi-
mony as to whether Smith had said, “Get him, Howie” (the
“him” referring to the cashier) or “Look out, Howie.” There-
fore, there was a reasonable chance that they could get “no’s”
from the jury on all three questions. ;

When the penalty phase began, the prosecution offered
no witnesses but requested permission to reopen, which meant
that the prosecution could later request the introduction of
further testimony; The court granted permission. Smith’s

i

The “Hanging Psychiatrist” 165

attorney called three witnesses, each of whom testified to
Smith’s good character, The testimony was brief and to the
point. Once the defense rested, the prosecution wanted to ex-
ercise its request to reopen, They had only one witness. The
judge agreed. Smith’s attomey could hardly believe it when he
heard that the one witness they wished to call was Dr. James
Grigson.

He objected. He objected strenuously and lengthily. First
of all, he had never requested a mental examination of Smith;
second, the examination had been conducted without his
being informed; third, the results of the exam had not been
made available to him; fourth, the purpose of the exam was a’
competency evaluation, not a penalty recommendation; fifth,
Smith had not been told that his statements to Grigson could
be used against him at the trial; sixth, Smith had been denied
counsel during this evaluation; and seventh, the prosecuting
attorney had ‘concealed his plan to have Grigson testify at the
trial by omitting his name from the witness lists,

The judge listened to his long list of objections and
overruled them all with the warning that Grigson was not to
testify to any of the specific statements that Smith had made,
and that he could only testify to his opinion on the matter at
hand, an opinion that Grigson had come to as a result of
listening to Smith’s statements, ‘The primary focus of Grig-
son’s. testimony to the jury was whether the defendant was
likely to repeat his violent deeds in the future. This was not an
easy question, since there was no record of previous violent
deeds, but Dr. Grigson had little problem with the query, He
stated that Smith would repeat his violent deed again and
again and again, that violence was all Ernest Benjamin Smith,
Jz., knew, and that Smith was now, and always would be, a
psychopath, a sociopath, and a man without a conscience,
The jury came back with a death sentence,

James Grigson, M.D., has a private psychiatric practice
in Dallas. He is a local boy and a graduate of Baylor and
Southwestern Medical School (now part of the University of
t
}
|

166 JAMES GRIGSON

Texas Health Science Center at Dallas) who did his psychi-
atric residency at Parkland and Timberlawn hospitals in Dal-
las. Although he has been accused by a University of Texas
law professor of “operating at the brink of quackery,” his
credentials are in order. He is certified by the American .
Board of Neurology and Psychiatry and was for some years
on the medical faculty of Southwestern Medical School. He
has been conducting examinations of criminals since the mid-
sixties and, after fifteen years, he estimates that he has inter-
viewed over 8,ooo men and women charged with crimes. He
has participated in numerous trials and is respected by defense: 1
lawyers who have. reason to know him to be a formidable
witness, ‘ '

Physicians, including psychiatrists, are often uncomfort-|
able in the courtroom. One physician has suggested this is [4
because the doctor is not in control of the situation. This, ;
may be at least part of the explanation. The psychiatrist fre- . \
quently bristles or becomes defensive under the harsh cross-
examination that the adversary method of the courtroom re-
quires, Often, he sounds as if he believes he is being picked on
unduly by the attorneys, and he begins to react emotionally,
frequently claiming far more certainty than his knowledge
genuinely allows, If the opposing attorney is able to provoke
him sufficiently, the psychiatrist sooner or later will leap out’
on the proverbial limb and the lawyer will obligingly cut him
down.

An additional cause of psychiatrists’ discomfort in the
courtroom may be that juries are generally thought to be hos-
tile to them. The psychiatrist often speaks a technical lan-
guage or a jargon’ that the juror does not understand. He
often appears to be patronizing the jurors, and may be from a
different social class than that of the jurors. One criminal
defense attorney pointed out that psychiatrists will come into
court in weird clothing—for example, a suit, no tie, and
tennis shoes—setting themselves apart from and frequently
alienating the jury, But none of that is typical of James
Grigson. %

The “Hanging Psychiatrist” 167

At forty-eight, Grigson is a tall, soft-spoken witness. He
always dresses appropriately, like a business or professional
man. He is affable, at ease, and confident about his opinions.
He ‘explains the examination he gives to the defendant in
simple ordinary language, which is appropriate because it’s a
simple ordinary examination. He states his conclusions with a
minimum of psychiatric jargon. He is a model of humility and
sincerity. The jury responds very positively to him, since he is
not a hired gun, available at a price to mouth any opinion.
Jim Grigson really believes what he testifies to, and what he
testifies to in more and more cases is that the defendant
should receive the death penalty because he is, in Grigson’s
own language, a sociopath, a man without conscience who
will go on throughout his life performing violent acts in his
own self-interest. The defendant, Grigson frequently says, is
as bad a sociopath as one can be and therefore can’t get
any worse; but he won’t get better either, for psychiatry has
nothing to offer the sociopath.

Jim Grigson has testified to the sociopathic personality
of the defendant in about sixty capital murder cases in Texas,
With one or two exceptions, the jury sentenced the defendant
to death, primarily and often exclusively on the basis of Grig-
son’s testimony.

In 1974, when Ernest Benjamin Smith, Jx’s, attorney
objected to Dr. Grigson’s testifying during the penalty phase,
Grigson had not yet acquired the reputation he has today. But
it was well known even then that having Jim Grigson against
you was bad news. Grigson says that he doesn’t testify for
anyone. He just tells what he believes to be the truth, He has
been hired by federal judges; attomey generals; U.S. attor-
neys; judicial district judges from Texas, Arizona, and
Alaska; district attorneys; and defense attorneys, The defense
attorneys who hate to see him on the other side would love to
have him on their team because he is such a formidable, un-
flappable witness. Having Grigson for your witness is like hav-
ing the only wild card in a poker game; he makes you look
like a sure winner,
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168 JAMES GRIGSON

Grigson’s reputation with the press is as a prosecution
witness, but he himself points out that in about one-third of
the death penalty examinations he conducts, his judgment is
not useful to the prosecution because he believes there is hope
for the defendant. Newspaper accounts stress that he always
testifies to the unredeemable nature and character of the de-
fendant, but of course if he were not prepared to testify to
that, the prosecution would not call him to the stand.

His testimony in all these cases is remarkably similar. He
describes the five-part, all-purpose examination he conducts
and then states his opinion that, based on that exam, the de-
fendant is a sociopath. He then describes and defines socio-
pathy and explains that it is (a) incurable and (b) not a
mental illness of any sort, He postulates a scale of one to ten
and places the victim at ten. He speaks with certainty. When
asked by the defense lawyer if he is ever wrong about such
judgments, he acknowledges that he is sometimes wrong,
“but,” he continues, “in this case I’m not.”

He was absolutely certain about his judgment of Ernest
Benjamin Smith, Jr. After explaining that Smith was a severe
sociopath (up there at ten on the scale), the prosecuting at-
torney asked whether Grigson thought Smith felt any guilt or
remorse, whether, in effect, Smith had any conscience.

A. No. He has none. :

Q. Now. Dr. Grigson, what is your prognosis in this case?
A. Oh, he will continue his previous behavior—that
which he has done in the past. He will do it in the future.
Q. All right. So, were he released into society, I take it,
then, you would not expect his behavior to differ from
what it has been?

A. No. If anything, it would only get worse.

Q. Now, Dr. Grigson, this sociopathic personality that
Smith has—is this a condition that will improve with
time? I guess what I’m asking you is this: Is this a stage
that he is passing through that he will grow out of?

A. No. This is not what you would consider a stage. This

The “Hanging Psychiatrist” 169

is a way of life. Just as you work every day, well, his per-
sonality comes out in his behavior, but it is not a stage he
is going through. It’s only something he will continue.
Q. You said get worse?
A, Yes,
Q. Ifit can?
A. Right .. . It’s my opinion that really, Mr. Smith does
not have any regard for another human being’s property
or for their life, regardless of who it may be. This is what
makes him such a very severe sociopath. He has com-
plete disregard for another human being’s life.
Q. Dr. Grigson, does the field of medicine—perhaps psy-
chiatric treatment and/or hospitalization of some sort—
does that have anything beneficial to offer someone like
Emest Benjamin Smith?
A. We don’t have anything in medicine or psychiatry
that in’ any way at all modifies or changes this behavior.
We don’t have it. There is no treatment, no medicine,
nothing that’s going to change this behavior.
Q. Now, Dr. Grigson, do you have an opinion as to
whether or not there is a possibility that the defendant,
Emest Benjamin Smith, will commit criminal acts of
violence that will constitute a continuing threat to
society?

_ A. Yes sir, [have an opinion as to that.
Q. And what is that opinion?
A. That certainly Mr. Smith is going to go ahead and
commit other similar or same criminal acts if given the
opportunity to do so.
Q. Now, Dr. Grigson, I believe you have stated that this
man has no remorse or sorrow for what he has done?
A. No. He has none.

Grigson is always sure. He is difficult to cross-examine
because of his certainty, even though much of what he says is
scientifically questionable or purely speculative. When de-
fense witnesses know he is to testify in the penalty trial, they
170 JAMES GRIGSON

can counter with their own psychiatrists who argue that the
defendant is not likely to continue to be violent. Except, of
course, it’s hard to get a psychiatrist to be as certain as Grig-
son, since most psychiatrists are not convinced that their psy-
chiatric licenses also qualify them to act as fortune-tellers,

As a result, Grigson is often asked no questions at all by
the defense counsel. He has acknowledged that he thinks they
are somewhat afraid of him and that doubtless pleases him.

After the, jury returned with the death penalty in the
Smith case, the decision was appealed. Smith went to prison in

Huntsville, Texas, to wait out the months while the slow ap- '

peals process moved along. In 1976 the Texas Court of Crim-
inal Appeals affirmed Smith’s conviction and sentence, and in

1977 the U.S. Supreme Court refused to consider the case. |

Later in 1977 the U.S. District Court for Northern Texas
agreed to hear the case and the judge vacated the death sen-

tence on grounds that Smith’s attorney had raised during the’.

penalty phase of the trial—namely, that Grigson’s failure to
inform Smith or his lawyer that information gained during the
competency hearing would be used during the trial was a
violation of due process, of Smith’s right to effective counsel,
and of his right to introduce complete evidence. This was, of

course, a victory for Smith, and Estelle, or rather the State of
Texas (Estelle was the head of the Texas Department of Cor- :

rections against whom the original suit had been filed), re-
quested a new trial, but that motion was denied,

Next, Texas-Estelle appealed the U.S, District Court’s
tuling to the U.S..Court of Appeals for the Fifth Circuit
and, in 1979, five years after the original jury verdict, that
court upheld the U.S, District Court’s judgment for Smith,
Texas was not about to give up so easily, however, and in
1980 the U.S, Supreme Court agreed to hear arguments and
to make a final ruling on- the case during its 1980~1981
season, a

By 1981 Smith had spent seven years in the Huntsville
prison. He had, so far, failed to live up to Dr, Grigson’s billing

%

Ey

The “Hanging Psychiatrist” 171

of him as a man whose life would be dedicated to violence,
unless one counted the fact that he had been knifed by an-
other prisoner while at Huntsville. As Smith himself said, dur-
ing his time in prison, the “only violent act [he’d] been in-
volved in, [he] was the victim.” During those seven years Dr.
Grigson testified in many more cases in which the defendant
stood a chance of execution. About one-third of the men
awaiting execution in Texas prisons had had the “benefit” of
Dr. Grigson’s testimony. Also during those seven years, Uni-
versity of Texas Law Professor George Dix had begun seri-
ously to study Dr. Grigson’s testimony. In 1978 he published
his study entitled “Participation by Mental Health Profes-
sionals in Capital Murder Sentencing.” Dix was appalled by
what he had found: Grigson was using a diagnostic category
(sociopath) that the American Psychiatric Association had
stopped using ten years earlier, Beyond that, Dix thought that
the current evidence about psychiatrists’ ability to predict vio-
lent behavior over the long-run conclusively disproved Grig-
son’s views, and that Grigson’s willingness to hinge these life-
or-death judgments on a single ninety-minute interview was
shocking.

Professor Dix had some considerable support on these
issues, including the American Psychiatric Association. The
APA is a national professional organization with 26,000 of
the, 33,000 psychiatrists in the United States as: members, in-
cluding Dr, Grigson. It is also the professional organization
that sets the ethical standards for psychiatric practice and de-
termines the officially sanctioned psychiatric diagnoses and
mental illnesses. In the Smith case, the APA decided to file a
legal brief in support of Smith and in opposition to its own
member, Dr, Grigson, They filed their amicus curiae (friend
of the court) brief with the Fifth Circuit Appellate Court, and
when the U.S, Supreme Court agreed to hear Estelle v. Smith,
they filed a second brief with that court.

The APA explained its willingness to be involved in the
case by pointing out that it
a

LaBRAH &

baw Cees
UNIVERSITY OF ALABAM.

172 JAMES GRIGSON

has monitored the administration of capital punishment
statutes and the role of psychiatric testimony in that pro-
cess. The instant case specifically involves the use of psy-
chiatric testimony in Texas on the capital sentencing
issue of whether a defendant is likely to commit criminal
acts in the future, As such, it raises significant issues con-
cerning the role of psychiatrists in capital cases. Resolu-
tion of those issues will have an important impact not
only on the administration of capital punishment, but
also on the quality and integrity of forensic psychiatry. . . .
The Association is uniquely qualified to advise this Court
as to the reliability of psychiatric predictions of long-term
future criminal behavior, which is a key issue under the
Texas capital sentencing statute. The Association is also
qualified to discuss the potential impact of any restrictions
as to such testimony on other criminal law issues concern-
ing competency and sanity determinations. These factors
are critically relevant to this Court’s consideration of this
case, and the American Psychiatric Association believes
that they will not be adequately briefed cither by peti-
tioner or by respondent.

In its brief to the Supreme Court, the APA argued three
major points. First, they argued that psychiatrists should be
forbidden to testify in penalty phases of trials if their testi-
mony was given with respect to predicting future dangerous
behavior of the defendant. Second, they urged that if the
court chose to permit psychiatrists to testify in the penalty
phase of trials, it should require psychiatrists to give notice to
the defendant that any statement he made in the interview
could be used against him in the trial and that, further, he had
the right to remain silent. Third, they urged that attomeys be
given full notice of such examinations and of the possibility
that testimony would be given as a result of the interview.
Although the APA chose to make its stand with Estelle
vy. Smith, its position applied to many more cases than this
one, The use of psychiatric testimony in capital case-penalty

The “Hanging Psychiatrist” 173

trials was common in Texas and in several other states, with
Virginia’s procedures being most comparable to those of
Texas, Grigson had proffered the same kind of testimony that
the APA wanted outlawed in many Texas cases (eighteen of
the Texas cases were specifically criticized by the U.S. District
Court decision in Estelle). But, although Grigson figured
prominently in these cases, he was not the only psychiatrist
who was providing this kind of testimony. The APA was not
apparently on a witch hunt against one of its own members. It
did, however, seem to be in the unusual position of arguing
that a limit should be placed on its ow members’ professional
activities as a matter of principle. Even Jim Grigson didn’t
think they were out to get him, but he disagreed entirely with
the APA’s view of what principle was being defended in the
case.

According to the APA, psychiattists should not testify
about probable future violence by defendants because scientif-
ically conducted studies had repeatedly shown that psychi-
atrists had no particular expertise in making such predictions.
In fact, some of the studies showed -that psychiatrists were
considerably less accurate than other groups, including
policemen. Psychiatrists, it turned out, not only tended to
overpredict dangerousness, expecting it a.lot more frequently
than it turned out to exist; they also tended to be fairly inac-
curate in their selection as well. For example, suppose a
group of one hundred people were to be evaluated for future
dangerousness and the fact was that ten of them would
actually be violent in the future. Psychiatrists might be likely
to predict that twenty members of the group are dangerous
(overprediction, since they have included at least ten “false
positives,” i.e.,.people who they say are dangerous but are
not), and within that twenty that they have specified, only five
of the actual dangerous groups of ten are included (thus, an
inaccurate selection of 50 percent).

The APA claimed that, because there had been contin-
uous requests for psychiatrists to make predictions about dan-
_

170 JAMES GRIGSON

can counter with their own psychiatrists who argue that the
defendant is not likely to continue to be violent. Except, of
course, it’s hard to get a psychiatrist to be as certain as Grig-
son, since most psychiatrists are not convinced that their psy-
chiatric licenses also qualify them to act as fortune-tellers.

As a result, Grigson is often asked no questions at all by
the defense counsel. He has acknowledged that he thinks they
are somewhat afraid of him and that doubtless pleases him,

After the jury returned with the death penalty in the
Smith case, the decision was appealed, Smith went to prison in

Huntsville, Texas, to wait out the months while the slow ap- ;

peals process moved along. In 1976 the Texas Court of Crim-
inal Appeals affirmed Smith’s conviction and sentence, and-in
1977 the U.S. Supreme Court refused to consider the case.
Later in 1977 the U.S. District Court for Northern Texas
agreed to hear the case and the judge vacated the death sen-

tence on grounds that Smith’s attorney had raised during the’. ;

penalty phase of the trial—namely, that Grigson’s failure to
inform Smith or his lawyer that information gained during the
competency hearing would be used during the trial was a
violation of due process, of Smith’s right to effective counsel,
and of his right to introduce complete evidence, This was, of
course, a victory for Smith, and Estelle, or rather the State of

Texas (Estelle was the head of the Texas Department of Cor- :

rections against whom the original suit had been filed), re-
quested a new trial, but that motion was denied,

_ Next, Texas-Estelle appealed the U.S, District Court's
tuling to the U.S..Court of Appeals for the Fifth Circuit
and, in 1979, five years after the original jury verdict, that
court upheld the U.S. District Court’s judgment for Smith.
Texas was not about to give up so easily, however, and in
1980 the U.S, Supreme Court agreed to hear arguments and
to make a final ruling on- the case during its 1980-1981
season. 4

By 1981 Smith had spent seven years in the Huntsville
prison. He had, so far, failed to live up to Dr. Grigson’s billing

w

The “Hanging Psychiatrist” 171

of him as a man whose life would be dedicated to violence,
unless one counted the fact that he had been knifed by an-
other prisoner while at Huntsville, As Smith himself said, dur-
ing his time in prison, the “only violent act [he’d] been in-
volved in, [he] was the victim.” During those seven years Dr.
Grigson testified in many more cases in which the defendant
stood a chance of execution. About one-third of the men
awaiting execution in Texas prisons had had the “benefit” of
Dr. Grigson’s testimony. Also during those seven years, Uni-
versity of Texas Law Professor George Dix had begun seri-
ously to study Dr. Grigson’s testimony. In 1978 he published
his study entitled “Participation by Mental Health Profes-
sionals in Capital Murder Sentencing.” Dix was appalled by
what he had found: Grigson was using a diagnostic category
(sociopath) that the American Psychiatric Association had
stopped using ten years earlier. Beyond that, Dix thought that
the current evidence about psychiatrists’ ability to predict vio-
lent behavior over the long-run conclusively disproved Grig-
son’s views, and that Grigson’s willingness to hinge these life-
or-death judgments on a single ninety-minute interview was
shocking.

Professor Dix had some considerable support on these
issues, including the American Psychiatric Association. The
APA is a national professional organization with 26,000 of
the 33,000 psychiatrists in the United States as‘ members, in-
cluding Dr. Grigson. It is also the professional organization
that sets the ethical standards for psychiatric practice and de-
termines the officially sanctioned psychiatric diagnoses and
mental illnesses. In the Smith case, the APA decided to file a
legal brief in support of Smith and in opposition to its own
member, Dr. Grigson. They filed their amicus curiae (friend
of the court) brief with the Fifth Circuit Appellate Court, and
when the U.S. Supreme Court agreed to hear Estelle v. Smith,
they filed a second brief with that court.

The APA explained its willingness to be involved in the
case by pointing out that it

“ 7 . : )
LABAMA

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174 JAMES GRIGSON

gerousness both in civil and criminal matters, it had con-
ducted a lengthy survey regarding violence and psychiatric
understanding of “evaluation, management, and. prediction of
psychiatric behavior.” The conclusion of the 1974 study was
that psychiatrists had not been able successfully to predict
violence at any high rate of reliability except in those in-
stances where the individual had committed a significant
number of violent acts over a period of time (for example, a
parent who regularly abused a child). But, in those cases in
which psychiatrists were fairly accurate, so were other people.
It didn’t appear that there was any psychiatric expertise that
was required to make the prediction, College students had
been able to predict it as well as psychiatrists. It was likely
that jurors also could do it as well. It was probably a function
of common sense.

The APA task force report concluded that “psychiatric
expertise in the prediction of ‘dangerousness’ is not estab-
lished and clinicians should avoid ‘conclusory’ judgments in
this regard.” It was just this kind of “conclusory” judgment
that the APA particularly worried about in the testimony of
psychiatrists like Grigson, for Grigson and others almost al-
ways testified that the defendant was certain to continue to be

a danger to society. They spoke without doubts, without un- -
certainties, without any sense of probabilities in their judg-

ments, The APA was convinced that psychiatry did not have
this capability, and, if Grigson had it, it was not by virtue of his
being a psychiatrist. They believed he should stop testifying
under that heading, because it gave his views a dishonest
cloak of greater expertise,

Many APA members, and particularly those involved in
the preparation of the amicus briefs to the Appellate Court
and the Supreme Court, were also appalled at other aspects of
Grigson’s testimony, But the nature of a legal brief is such
that matters not specifically legal often are lost. As a result,
the other serious objection about Grigson was cursorily men-
tioned in a footnote. What many psychiatrists found most

The “Hanging Psychiatrist” 175

outrageous about Grigson’s behavior was his complete disre-
gard for the authorized views of psychiatry, which were
promulgated by the APA. In particular, they were offended
by Grigson’s repeated use in trial after trial of the term socio-
path. Psychiatry had cast off that diagnosis in 1968. Grigson
was, in effect, dragging up a part of their past they would just
as soon forget.

To understand the importance of the sociopath issue,
one must first understand something about how psychiatry, as
a profession, developed. Early in the history of the field, psy-
chiatrists were generally called alienists, a term borrowed
from the French and indicating a specialist in diseases of the
nervous system, “Psychiatrist” was a word the Germans used
and it had unpleasant associations for Americans in the field
because in Germany the term had heavy metaphysical associ-
ations, particularly relating to the soul or the mind (as op-
posed to the brain). These American doctors thought of
themselves as scientists and as physicians to the body no less
than other physicians, but physicians concerned with the
nervous system. Around the turn of the century, however,
there was a separation within the field and it was divided
between two groups who became known as neurologists and
psychiatrists. The neurologists took over:the nervous system
and the psychiatrists (no longer alienists) inherited “mental
illness,” The problem was, however, defining mental illness.
No other medical specialist had ever had to face such a prob-
lem. With a fine sense of practicality and some sense of
hubris, the psychiatrists decided that the only way to decide
what was and was not a mental illness was for them to sit
down and decide, which they did. The results were published
in the first edition of the psychiatric blue print, the Diagnostic
and Statistical Manual, or DSM I, This was published in
1952, drawing primarily upon the work of army psychiatrists
during World War II. The American Psychiatric Association
describes their initial effort as “the first official manual of
mental disorders to contain a glossary of descriptions of the
176 JAMES GRIGSON

diagnostic categories.” DSM I told practicing psychiatrists
what was a mental disease and what was not (if it was not
included, it was not a mental disease), what were the symp-
toms of particular diseases, and what were the prognoses. It
was, in fact, a vitally important and extremely significant ini-
tial effort in classification and description of mental illness,
but like any early work of that sort, it had many problems and
errors. However, the problems that DSM I had were unlike
the errors of other classification schemes.

Perhaps the diagnostic alteration best known to the pub-
lic was the APA’s decision that homosexuality was not a
mental illness. Such an action seriously undercut public appre-
ciation of psychiatry’s positive work by suggesting that either
psychiatrists’ judginents were arbitrary or they had no stan-
dards at all. Americans were used to thinking of diseases as
fixed entities. They could scarcely imagine doctors deciding
that pneumonia, for example, wasn’t a disease any more.

Reactions like these were related to the deeply ingrained
connection and confusion between mental illness and sin, It
was once widely believed that the mentally ill were in the
devil’s grip and many people still believe that, though their
belief takes a somewhat altered form. Homosexuality, seen as

a sin, had been caught up by psychiatrists as a mental disease. -

Then, when they decided that, if anything, it was merely a sin,
they dropped it from their categories. From the public’s point
of view, it suggested that psychiatry thought homosexuality
was neither sinful nor a mental illness. Psychiatry, on the
other hand, was in the awkward position of having to re-
nounce its belief in the mental illness part of homosexuality
and at the same time divorce itself from religious or moral
ideas about sinfulness. They didn’t care what homosexuality
was, as long as it wasn’t considered a mental disease,

The story of sociopathy is not unlike that of homosexual-
ity as DSM I evolved through DSM II and DSM III. Up
until 1968 the APA included sociopath as a category of mental
illness. Then, with the publication of DSM II in 1968, the

The “Hanging Psychiatrist” 177

term sociopath was dropped and a new classification, “anti-
social personality disorder,” was introduced. In DSM III,
published in 1980, antisocial personality disorder continues to
be listed as a mental illness and requires for diagnosis “a
broad range of the patient’s behavior.” In the footnote in their
brief in Estelle, the APA objected to Grigson’s use of sociopath
as a diagnosis because they don’t use it any more, and even
more so because his diagnosis was based on a brief examina-
tion in which the defendant evinced no remorse.

Grigson’s use of the sociopath diagnosis as well as his
willingness to be very certain about his judgments of future
dangerousness are far more closely related to the idea of
mental illness as sin than to the idea of mental illnéss as dis-
ease. And it is perhaps this aspect of his testimony that
offended the APA the most.

Grigson, in fact, defended himself against his many
critics as handily out of court as in. He finally began to refuse
interviews to journalists, giving as his reason that he was tired
of seeing himself referred to as “the hanging shrink,” “Doctor
Death,” “the Doctor of Doom,” and “the prosecution's hired
gun.” But in a 1978 interview with a reporter from a Texas
magazine, Grigson allowed that the APA’s disapproval of his
actions was of little concern to him. :

: I haye been doing this since 1960, and in that time I’ve
examined more murderers and more rapists than the com-
bined number examined by the people who wrote the
APA diagnostic manual. And based on my experience,
here's my definition of a sociopath. First, a sociopath
doesn’t have a conscience. He feels no remorse about his
crime. I say to him, “Hey, how did you feel about killing
these people?” And he doesn’t hang his head, his cheeks
don’t flush, he doesn’t have any of the normal reactions
you or I would have. Two, he repeatedly breaks the rules
of society. Three, he cons and manipulates, lies, steals and
cheats for the pleasure of it, Most of the district attorneys
only prosecute a very specific type of person for these
178 JAMES GRIGSON

death cases. . . . If they prosecute a death case... then
that guy has already been identified as bad, bad, bad. I
think you could do away with the psychiatrist in these
cases, Just take any man off the street, show him what the
guy’s done, and most of these things are so clear cut he
would say the same things I do, But I think the jurors feel
a little better when a psychiatrist says it—somebody that’s
supposed to know more than they know.*

Grigson suggests that he is willingly doing exactly what
the APA is unwilling to have him do and is accusing him of
doing: using the mantle of psychiatric authority to validate
opinions that ordinary people would have anyway. But be-
hind Grigson’s words lies a more serious objection that the
APA might have: that Grigson is using psychiatric authority
to talk about sin, and that is really what Grigson is thinking of
when he uses the term sociopath. Sociopaths are simply what
a more religious culture knew to be unregenerate sinners, and
they knew it with no less certainty than Jim Grigson knows it.
And what could save a sinner? Not a psychiatrist, surely, That
is why there is no treatment, Only God’s grace can save a
sinner, and grace is not a regular part of psychiatry or of
prison rehabilitation.

Grigson is careful in defining the sociopath (or psycho-
path—he uses the terms interchangeably) to make sure that
no one thinks that what he is talking about is a mental illness,
If it were a mental illness, then pethaps some sympathy might
appropriately be shown to the defendant. Furthermore, he
counsels, a sociopath cannot be cured. The language begins to
fall apart a little here, and the jury, unless they are totally
spellbound by Grigson, might begin to wonder why something
that isn’t an illness even might be cured, But Grigson is simply
covering all his bases, The defendant is not sick, cannot be
cured, and will only get worse.-If it were a riddle (what does a

* (Texas Monthly Repotter, “Killers and Shrinks,” John Bloom, July
1978, pp. 64, 66, 68. Quote from p. 68.)

:

&

The “Hanging Psychiatrist” 179

person have who is not sick, cannot be cured and will only get
worse? ), the only answer would be “sin.”

It is perhaps this about Grigson that organized psychi-
atry hates the most. He drags psychiatrists backward into the
semireligious quagmire from which they have struggled for so
long to remoye themselves, Grigson, on the other hand, thinks
they're out to get him and others who testify as he does be-
cause he believes establishment psychiatrists want to eliminate
the death penalty. If APA could prevent psychiatrists from
testifying in the penalty phase of capital trials, jurors might be
too soft-hearted to vote for the death penalty, Grigson is will-
ing to testify because he believes in the death penalty and
thinks that the small group at the APA that determines its
public positions opposes him in order to oppose the death
penalty,

The Supreme Court handed down its decision in Estelle
v. Smith on May 18, 1981. The victory went to Smith, The
APA got part of what it wanted, in that Grigson’s style of
witnessing was not approved, The Court tuled, first, that
Smith’s death sentence be vacated and a new penalty trial
held, Second, in ruling on the procedures of the case, they
held that psychiatrists may testify about future dangerousness
where such testimony is permitted (an earlier Supreme Court
decision on that question had pointed out that although such
predictions were extremely difficult to make, someone, never:
theless, must make them), However, the court also ruled that
the defendant must be informed of the purpose of any exami-
nation wherein his statements might later be used against him;
that the defendant be permitted to invoke the Fifth Amend-
ment; and that the defendant’s lawyer be apprised of any such
interview and testimony and have the opportunity to advise
his client about answering questions,

Jim Grigson can continue to testify in the penalty phase
of capital offense trials in Texas (or Idaho, Oklahoma, Vir-
ginia, Washington, or wherever else such testimony is al-
lowed). He will have to tell the defendant the purpose of the
AAA

LABAS

ERT ER Lay

ERSITY OF Al

LAE €

uUnly.

180 JAMES GRIGSON

interview and lawyers will doubtless urge their clients to be
silent. Grigson will no longer be able to testify (as he has in
the past) that the very refusal of defendants to answer a single
question was evidence of their lack of remorse and of their
severe sociopathy. Theoretically, if they will not speak to him,
he cannot testify about them.

However, in at least one trial, Grigson had not inter-
viewed the defendant but took the stand anyway. He was
asked by the prosecution about a hypothetical case. “Suppose
you interviewed a person who...” began the prosecuting
attorney, who then proceeded to give a run down of the de-
fendant’s life. Grigson did not find any difficulty in making a
judgment about this hypothetical peison. He was a sociopath
+, extreme . . . no hope of change . . . only get worse. The
defense attorney, on cross-examination, offered Grigson a
second and different hypothetical case. Grigson listened,
judged, and. said yes, that hypothetical person was another
Sociopath, with no hope of change, and so on. The defense
attorney then explained with subducd pleasure to Grigson and
the jury, his hypothetical case was the life history to age nine-

teen of a well-known, very successful major league baseball
player, Ron LeFlore.

" Where there is no question of mental illness, there is no
need for expert psychiatric witnesses. Doctors like Grigson
provide us with excuses for not having to make decisions
about capital punishment. To make such a decision is surely
one of the hardest choices life can bring, but to make the
decision on the basis of false premises or by hiding behind
false expertise is immoral. If we cannot bear to make these
decisions because they are so hard, then we should lear to
get along without executions until we can accept the responsi-
bility for the decision. Someone, says the Supreme Court, has
to make these decisions. But it should not be Jim Grigson or
psychiatrists; it should be us.

, January 1985, for a murder he did not’

killers’ accomplices “==

By BILL COULTER and FRANK KLIMKO

30-6 7

A federal judge in Houston Wednesdat Branted a last-
minute stay of execution to Clifford X. Phi tips, convicted in

8 : . the 1982 strangulation of Alley Theater director Iris Siff,
rom ean. penailrv Phillips, who was (o die by lethal injection before sunrise

nee eee
By ANNE MARIE KILDAY f

Houston Chronicle Austin Bureau 1

AUSTIN — A bill that would shield
murder accomplices from the death

nalty, unless they participated in the
‘lling, ‘was approved by voice vote
Wnesday nthe Tena House,

The bill by Rep. Larry Evans,
Houston new. goes to the Senate for
consideration,

The bill was prompted by the case of
Doyle Skillern, who was executed in

count while the trigger man was sen-
tenced only ta life in prison,

Teal testimony showed that Skillern
was waiting ina stolen car In 1974
when Charles Sanne shot an under-
cover harcotics officer six times. Both
Skillern and Sanne were convicted of
first degree murder, but Skillern was *

ven the death penalty and Sanne

today.won a reprieve by Subinting an Sigh page, handurit
ten petition to US. District Judge Gabrielle Mebonald.

He had already chosen a last meal — fish, french fries,
Peas, bread and milk — and four personal’ witnesses. in
Preparation for the execution,

«phillips claimed attorneys Jim Skelton and Robert Pelton,
Pho persuaded U.S. District Judge Norman Black to stay his
{Xeeulion previously, never informed him that the judge
later denied an appeal of his conviction,

{ Phillips said the lawyers never discussed Black's decision
With him or told hin: of his right to appeal to higher courts,

Skelton said he and Pelton were retained only to oblain a
stay of execution for Phillips, and that they appealed the
conviction strictly for this purpose

;, We told Philtins from the very beginning that our only
function was to get tim a stay so he can finish a book
Skelton said,

Skelton said Black issued the slay one day before Philips
scheduled execution in August, Skelton said he believes
Black denied the conviction appeal in January,

McDonald ordered the attorneys and Phillips to appear
before Black on Monday for a heating on the inmate's sie:
gations,

lly reaction is, na word, its absurd," sald Joseph Sitf,
one of Iris Siff's twin sons. "I's the criminal injustice system

‘House bill exempts sitt's killer gets stay ‘of execution -

for victims, not the criminal justice system.”

The son, vice president of investments for Prudential
Bache Securities in Houston, sald Phillips has received more
than the automatic appeal to which he was entitled.

He cited Phillips’ previous conviction for killing his 3-
[fatale son and remarked: “The man is not a human being
He's an animal. He doesn't deserve to live."

Phillips served part of a nine-year prison sentence in
Altica, No, for the 1969 killing of the boy, whose body was
found in a suitcase discarded ina vacant lot.

‘He doesn't deserve the support of society." Joseph Sift
said of Phillips, “He doesn’t deserve what you and I and the
Test of society are paying for,”

An assistant to Attorney General Jim Mattox. Bob Walt,
Said if Phillips had filed the appeal any earlier than Tuesday,
the courts would have probably rejected it and let the exec:
tion proceed. .

Walt said the state decided not to immediately appeal the
stay because of the highly technical nature of the appeal and
the fact that the judge's order was handed down just eight
hours before the scheduled execution,

Phillips, 52, spent most of the day reading the Koran the
holy book of the Moslem faith, and meeting with visitors:

Phillips has said he was innocent of capital murder bo-
cause he killed Siff in self-defense after Sneaking into the
theater, where he worked as a Security guard, late Jan, 12 or
early Jan, 13, ;

When: Phillips confronted Siff at the theater and demanded
Froney; she fought him for about 15 minutes, he told pouce.
He said he strangled her with his hands,

I realize it was a pretty gruesome thing { had dese,"
Phibips told police. “In my heart | was only defencing
myself, [felt I was fighting for my life." .

rew a life sentence, veownee ne = =
+ The bill would shield acconplices in_: auememwrmmens sane Sn SENAY oer maRapenony r
capital murder cases by requiring jus z =
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caused the death of the victim if an i
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*

By GAYNELL TerreLL
AND. BRYAN Denson ..*2,~({~/9
OF THE HOUSTON PosT STAFF! :°

, HUNTSVILLE — Count Harts County
as a state, and it would rank Second in
the nation in modern-day executions, fo}}.-_
lowihg Texas and leading Florida. |

If the scheduled execution of Raymond
Carl Kinnaimon is carried out shortly af-
ter midnight on Sunday, he will become
the 35th man sent to-his death by Harris
County juries since. thé US.’ Supreme

on

’ executions deadly distinction

. will have executed its 85th prisoner

Mocritorn Tr Mbee. 11) 19 94.

Whe

Opponerits lament. ‘frontier justice’

‘Court upheld the death penalty in 1976, Kinnamon was convicted of shooting a

Kinnamon would be the seventh put to, mian-in the back at a bar. He is to be.the .

death by Harris County this year, Ai

{' second Harris County convict to die by
he does not get a last-minute stay,

lethal injection within a week, having
“ avoided execution for 10 years,

‘Serial rapist Herman ‘Clark Jr. was
put'to death Tuesday after 13 years on
death row, his mother weeping softly as

resuming capital punishment in 1982)
Florida, which ranks No.2 in éke
tions, has put to death 33 prisoners, :?

Clark made a final statement. He had
exhausted numerous appeals,

A third inmate scheduled to die last
week, convicted killer Samuel Hawkins,
won a reprieve Tuesday eight hours be-
fore he was to be put to death.

The average death row stay is 4.5
years,

Texas will likely reach 100 executions
in 1996, prison officia's estimate. ‘The
very pace of executions here has earned

Please sce PENALTY, A.A5

(over)

Bed
PENALTY: County earns tag of ‘Execution Capital of America’

From A-43

Warris County the nickname,
“Execution Capital of America.”
Insiders disagree on what that
means,

: “It says nothing aboul Texans.
It speaks about the court sys-
tem,” said Ron Dusek with the
Texas Attorney General's Office.
“The U.S. Supreme: Court has
¢leared up a ‘number of issues
that have allowed executions to
go forward.” we

: ButLeigh Dingerson of the Na-
tional Coalition-to Abolish _t

Death Penalty said she believes,
“It's a sign to the public that the,
death penalty is becoming very
real.”

“There seems to be a fervor, a
fever now, for executions,” said
(he Rev. Edward Ducree of the
Indiana NAACP, a death penalty
opponent. “It's something that
seems to permeate Society.”

- National polls show four of
five Americans support the death
penalty. Nebraska, Idaho and
Maryland this year held their
first executions in decades. Pro-
ponents in New York, lowa and
Massachusetts are lobbying for
reinstating the death penalty.

With executions in Texas per-
formed al least oncéa month,
with almost assemply-line effi-
ciency, authoriti e looking

for ways to cut the time inmates
spend on death row — and the
expense to keep them there.

The Texas death row, with a
population of 400, is the largest
in the nation. It includes at least
111 inmates from Harris County,
and four women convicts.

Kinammon’s execution Sunday
was set by District Court Judge
Ted Poe to coincide with the 10-
year anniversary of the day Kin-
ammon murdered 41-year-old
Ronald C. Longmire in a north-
west Houston saloon.

“T wanted to try to bring some
significance to the time that it
takes from thé time of the crime
to the time the sentence is car-
ried out,” said: Poe.

Only three’of the 10 persons
Poe has sentehced to death in 13
years on the bench have been ex-
ecuted.

A 1992 study found it cost the

“’state an average of $2:3 million

over seven years of appeals to
execute someone. The cost of im-~
prisoning the same person for
life was $750,000.

Harris County District Attor-
ney John B. Holmes Jr. insists
streamlining the appeals process
would cut costs.

“To me, that’s like the kid who
killed his mommy and daddy and
now he wants probation because

he’s an orphan,” says Holmes.
“The whole process is our pro-~
cess, and we can change it to
make it less costly.”

State Attorney General Dan
Morales, who occasionally at-
tends executions, is pushing to
sharply limit the number of ap-
peals for death row inmates, ~

“We are proposing the legisla-
ture speed up the appellate pro-
cess., We think everyone has the
right to’go through the appellate
process’ =~ one time. But repeat-
ed and. frivolous appeals are’
costly, time-consuming and they
must be limited,” said Dusek.

Limiting appeals makes sense
to people like Pat Teer of Hous-
ton, whose son Mark Alan Fred-
erick, a.-state highway patrol-
man; was slain 19 years ago. The

killer, Billy George Hughes, is -

still ori death row, .

“Tt is cruel and unusual punish-
ment: to go through 19 years,”
said Teer, “The laws become,a
Joke if we'don't enforce them.” +

Critics‘of the death penalty say
Harris‘ County has become the
last bastion of frontier justice in
Texas, °

Opponent Jimmy Dunne, a
_ - Spokesman for Houston's _Death
Penalty Education Center, fears

publié: passion for revenge has
ed the process. He was hor-

tified recently when the county
courthouse held several capital
murder trials in a week.

“Tt was like an assembly-line
death machine,” he said.

Even officials in second-
ranked Florida are surprised at
the expediency of the Texas
death squad.

“You kill on Sunday? You're

open Seven dayS a week,” ob-
-served'Joe Bizzaro, public infor-

matioh officer for the Florida At-
torney.General’s office.
‘ The pace is certainly quicken-
ing. “¥"

In fei; when Houston logged
a record 701 homicides, juries
here sent 11 men to death row. In
1991;when the city logged 671
homicides, juries here con-

- demned 16,

Oritics also point to the grow-
ing disparity between blacks and
whites condemned to die here as
a regrettable vestige of the Old
South.

The county has sent 16 blacks,
14 whites and four Hispanics to
their deaths (Kinnamon would
make that 15 whites), But since
1985, county juries have con-
demned' nearly twjce as many
blacks to death row as whites, 4
disparity that mirrors death-sen-
tence patterns prior to the Civil
Rights Era. ¥

: ‘

o)
ee ee ee
: ae STE es ce Bee a
Tite JoURNAL OF CRIMINAL Law & CRIMINOLOGY Vol. 69,8

Copyright © 1978 by Northwestern University School of Law

TEXAS CAPITAL SENTENCING PROC)
AND THE RESTRAINING

YC.

Tt has been held that the level of our civilization |
precludes imposition of the death penalty without
an individualized judgment that it is “appropri-
ate." Thus, “in capital cases the fundamental
respect for humanity underlying the Eighth
Amendment ... requires consideration of the char-
acter and record of the individual offender and the
circumstances of the particular offense as a consti-
tutionally indispensable part of the process of in-
flicting the penalty of death.” It follows that cap-
ital sentencing procedures must “allow considera-
tion of particularized mitigating factors, for

[a] process that accords no dgnificance to relevant
facets of the character and record of the individual
offender or the circumstances of the particular of-
fense excludes from consideration in fixing the ule
timetr punishment of death the possibility of com-
passionate or mitigating factors stemming from the
diverse frailties of humankind, It treats all persons
convicted of a designated offense not as uniquely:
individual human beings. but as members of a
faceless, undifferentiated mass to be subjected to the
blind infliction of the penalty of death.*

Death sentences are imposed in Texas whenever
a jury determines that the defendant (a) was con-
victed of a capital crime committed deliberately
and unreasonably (in view of any provocation) and
(b) is dangerous. In Jurek ». Texas,° the United

* Associate Professor, Rutgers University School of
Law at Newark. Research assistance was provided by
Norman Epting. a second year student at Rutgers-New-
ark School of Law.

"Woodson v. North Carolina, 428 U.S. 280, 304
(1976). (Powell, Stevens & Stewart, J. J., plurality opin-
ion) .

* Id.

® Jurck v. Texas, 428 US. 262, 272 (1970)

“428 US. at 304

"(b) ... the court shall submit the following issues

to the jury:

(1) whether the conduct of the defendant that
caused the death of the deceased was committed
deliberately and with the reasonable expectation
that the death of the deceased or another would
result;

(2) whether there is a probability that the de-
fendant would commit criminal acts of violence that
would constitute a continuing threat to society: and

(3) if raised by the evidence, whether the conduct

300

Prnted in USA
EDURES: THE ROLE OF THE JURY
HAND OF THE EXPERT
DAVIS*

St
ality of this sentencing seme. Phe Cou

ates Suprenic Court consid red the constituts

ne con

hat

a scheme, which sen: fa ck

hot appros
persons guilty of deliberate and unreasonable».

ital evimes. (Indeed, it is arguable that ali contem
poraty capital crimes, by ‘Texas’ delinition or am
other, are deliberate and imre
more, in a society which, by the ue +!

asonable ) Purthe

an insanits
defense, protects many of 11s most dangerous mer
bers even from judgments implying blamewont
ness, the Court apparently could noi rule thai +
finding of dangerousness ievessarily ink affin
account of “the character and record of the o
fender™ to qualify as an individuating judgn.
that the death penalty was “appropriaie °° It was
able, however, to uphold the Texas statute ot“!
theory that the Texas Court of Criminal App:
had construed the dangermusness
that the defendant could bring to the jurv’s are
tion whatever mitigating cireumsiar

show. The Court recognized that:

L2PSUOn suc

ves he coun

In determining the likelilinnd that the detendan:
would be a continuing threat to soc the jun
could consider whether the defendant had a signi
cant criminal record. It could consider the range
and severity af his prior ¢rimi
further look 10 the age of the eefen
or not at the time of the commission «|

a conde

br could

at used whether
he offense
he was acting under duress or under the domination
of another. It could also consider whether the de
fendant was under an extreme form nf mental or
emotional pressure, something less. perhaps. thar

insanity, but more than the emotions of the averay:
man, however inflamed, could withstand!

sonable in response to the provocations if any, bs
the deceased|
(0) If the jury returns an atfinmatie: finding on

cach issue submitted under this acti te. the court

shall sentence the defendant to death
Trex Cope Cai PRoc ANN art. 37.071 (Vernon Sup
1978).

“428 US. 262

See BLACK, CAPLLAL PUsastimint- ‘Lith INevins

BILITY OF CAPRICE AND MIS(AKE 57-62 (1974)

* 428 U.S. at 287 n.7.

428 U.S. at 272-73 (quoting Juret \ State, 322
S.W.2d 934. 939-40 (Tex. Grim App 1&5)
Q
:

; 278] TEXAS CAPITAL CING PROCEDURES 301
mike 4 Lo . .
1 The determination of dangerousness therefore and that his patterns of conduet would be the same
neloped a mixed use: it was to satisfy the legis- in the future as they had been in the past.’
Gee Sbuve requirement that only dangerous offenders Analysis of capital cases reviewed by the Texas
URY : f z
Seexecuted, and it was to satisfy the constitutional Court of Criminal Appeals suggests that the State
Squirement that the sentencing decision involve frequently introduces psychiatric evidence at the
£ “vonsideration of particularized mitigating circum- pénalty phase of a capital trial,"” and that the
2 P: gating penalty pl P ,
@ Sances.""" expert typically presents a diagnosis of sociopath"
Since the jury is to consider “whatever mitigat- or an equivalent term’ and an unqualified char-
(ubon mg circumstances [the defendant] may be able to acterization of dangerousness.”” Particular experts
a Sow." we must assume that it mav act upon appear to testify regularly for the State in these
‘leath af mitigating evidence which is neutral «1 positive on matters." The psychiatric evidence! at times con.
1 gating } psy
ible cap: be question of future dangerousness, To assert the
| conten 7 villing in effe .
sentrary, one must be willing in effect to preclude "128 US. at 274 Smith was a non miggerman in a
core sdwidualized judgments and to preordain execus —jobbey eonvieied under the flow murder tule’ He had
Further pen of any capital offender whe does not appear — heen imermitiently uneniployed since a vente tor
msanty 2 gaccuous."? There is an irresistible speculation Tenn possesion, wich hae sen i Ba offense.
- - was evidence that |.and evidence that he
Gs thee ‘Sat the mixed use is forced and that only a forth- There was evidence that he did, and evidence that he di
Howante 7 ° i hot, attempt to kill the victim himself! For full accounts
a coe saht granting of authority t preclude excention Beene ce? Dix, The Death Penalty, “Dangeronsess,
Wate sa the basis of mitigating evidence will meet the Pyychatne ‘Testimony, and Professional Ethtes. 5 AM J. CRIM
afficies: fesitutional need. Nonetheless, if the Jurek 1. 151. 153.68 (1977): Black, Due Process fr Death Jureh
wf ihe of Sean's refusal to approve the Texas statute on its ® Texte and Gmpanton Cases, 26 Cain UL. Rev. t.
segment ibaa : icularized capital Ut 15 (19761. Smith's death sentence was vacated by a
a ax and ils commitment to particularized capital federal district court on he grounds that he was denied
. ‘surencing judgments are to have meaning. we due process, effective assistance af counsel the right to
te On (Oe ars assume that the dangerousness determination _ present evidence and the right not to incriminate himself.
Appel 9 afeks Vexibilny: We ius disume that danger- by circumstances surrounding the presentation of psychi-
‘ron such. asness is a relative concept, better understood _ alvi¢ testimony at the sentencing hearing. Smith» Ex
tatcsom Ki Schaowby the phrase “ieeiiepeiteesre ie telle, No. CA 3-77-0544. st (N.D. Tex. Dec. 30. 1977).
. a oS aps by the phrase “ondolerable threat.” so that  Shippy v. State, 556 S.W.2d 246, 253 (Tex. Crim.

stigating evidence might lead a jury to find the
“kof declining to execute acceptable to a humane
wed advanced society. #

App. 19/7): Granviel v, State, 552 $,W.2d 107. 114 (Tex.
Crim. App. 1977); Battie v. State, 351 S.W.2d 401,
406-07 (Tex. Crim. App. 1977); Moore v State, 542

s Spt te ca : e constitution: 5-W.2d 664, 675-76 (Tex. Crim. App. 1977): Livingston
ein His enti is necessary to the constitution” Sate. 54) S W2GG50, BOD he, Gane Ane Ma:
4 ip UT Meoatute, these is danger iaiany practice Choisgn v: Siete: 449.6 Wood 395, 399-401 (Tex. Crim,
cua, Mth imhibits the jury from voting consistently App. 1976), Smith ate, 540 $.W.2d 693, 696 (Tex.
(ucould wah its ethical and social judgment. The delega- Crim. App. 1976).
hoker ‘a io psychiatric experts of the function of deter. ___” Battie v. State, 351 S.W.2d at 407; Moore v. State,
olfense: eaiig' z “ h - 542 S.W.2d at 676; Livingston v. State, 542 S.W.2d at
ination ‘ning Gangerousness is such a practice. 661; Gholson v, State, 542 $.W.2d at 399; Smith v. Stal
une de . - 540 S.W.2d at 696.
ee A DESCRIPTION OF THE Practice "°Granviel v. State, 552 S.W.2d at 123 (antisocial
than, __ nits decision upholding the Texas statute, the Personality). ’
peas =, dwt Court noted that the highest criminal court _,,, 1? Shibpr the psychiatric expert was unable to assert
a : a 'a reasonable medical probability” of dangerousness. 5:
_ Whevas had, in Smuth v. State," based affirmance wood at 256 However, in Moore, the defendant was
i 2 death sentence upon factors revealed during termed “an absolute threat,” 542 S.W.2d at 676: in
ny by, Seatial and “the conclusion of a psychiatrist that Livingston the testimony was that the defendant *eculd
yb 8 ; 4 ity emain a continuing threat to society,” 542 S.W.2d at
‘tthe defendant] had a sociopathic personality 661; and in Gholson the experts’ conclusion was that both
‘ing on defendants “would continue to be a danger to society,”
® court 2H at 272. 542 S.W.2d at 399.
é imc * Granviel v, State, 552 $.W.2d at 114 (Dr. Holbrook);
1on Supe “Siatutory and case law leave it altogether unclear Moore v. State, 342 SW.2d at 678 (Dis Grigson and
ax dangerous an offender must be before execution is Holbrook); Livingston v. State, 542 S.W.2d at 661 (Drs.
gesisible under art. 37.071 (b) (2) of the Texas statute. Grigson and Holbrook): Gholson v. State. 542 §-W.2d at
INEVita, Se discussion at notes 30-41 and accompanying text 399-400 (Drs. Grigson and Holbrook): Smith v. State,
n. vate 540 S.W.2d at 696 (Dr. Grigson).
& “The alternative notion that the presentation of mi Even before the enactment of the present Texas capital
state, AY | BEE evidence is to invite jury ullification presents its sentencing procedure with its requirement that the jury
State, S25 aezconstitutional problems. See 428 U.S. at 302-03 determine dangerousness, the State had used Dr. Grig-
des = — *3#0 S.W.2d 693 (Tex. Crim. App. 1976). son’s testimony that the defendant was a sociopath with
a

igs ao ac ae
cae os os
ae eis ent e
ae eR :
302 PEGGY ©. DAVIS [Vets

stitutes the State’s entire presentation at sentenc
ing.” Prior convictions are, of course, introduced,
and on occasion testimony is presented that the
able and

defendant's reputation for being a peact

law abiding citizen is “bad.”

‘There is no indication in the appellate opinions
that defense counsel in capital cases have made tse
of psychiatric experts at the penalty phase, but the
‘Texas Court of Criminal Appeals has reversed a
capital conviction for the trial judge’s failure to
permit the defense to present a psychiatric wit-
ness.* There is evidence that the resources of the
defense are so limited that the use of such evidence
The introduction of other

might be foreclosed.”
kinds of mitigating evidence may also be signifi-
cantly limited. For example, as the Court of Crim-
inal Appeals held in Hovila v. State, the statute
ion in dejermin-

allows a trial judye broad dis
ing just what constitutes ‘relevant [and therefore

“no regard for societal rules, familial rules, moral rules
and legal rules” and could not be rehabilitated, to influ-
ence a jury sentencing decision. The testimony was of-
fered to counter testimony at the penalty hearing by
defendant's mother and sister that they thought he could
be rehabilitated. The jury sentenced him to death. Arm
strong v. State, 302 SW. 731, 735 (Tex. Crim. App.
1973). In Bruce v. Estelle, 536 F.2d 105! (oth Gir. 1976),
a homicide conviction, upheld in the district court by
reliance upon the testimony of Dr. Grigson that the
defendant was a sociopath and had been competent to
stand trial, was reversed, The circuit court declared the
“finding that Bruce is a sociopath clearly erroneous” and
noted:
Except for Dr. Grigson, all the physicians who
examined Bruce detecied an underlying schizo-
phrenic disorder... [T]he only dissenting expert,
Dr. Grigson, conducted his first examination three
and one-half years after trial. ... Nor did Dr. Grig-
son keep Bruce under lengthy observation.
When asked how it was possible that the other
experts who had examiaed Bruce over a nine-year
period had arrived at a radically different diagno
Dr. Grigson’s sole explanation was that he was
better qualified than they to determine Bruce’s
condition, a fact not established in the record.
I@. at 1060-61.
® Moore v. State, 542 $.W.2d at 676: Livingston v.
342 S.W.2d at 663,
hippy v. 536 SW.2d at 256; see Jurek v,
cxas, 428 US, at 267
* Robinson v. State, 548 $.W.2d 63, 66 (Tex. Crim
App. 1977) (“Testimony to the contrary on behalf of the
State has been held admissible at the punishment stage
of the trial. A good rule of evidence works both ways.”)
® Freeman v. State, 996 S.W.2d 287, 303 (Tex. Grim,
App. 1977) (upholding a $500 expense limit for investi-
gation and experts in the case of a defendant charged
with two counts of capital murder)

admissible] evidence’ at the punishment stage”

In upholding the Texas statute, the Suprem
Court in furek seemed to rely upon the ability
the Texas Court of Criminal Appeals to provide
by a process of review, “a means to promote the
evenhanded, rational. and consistent imposition
death sentences under law.”?” However, the sul
ciency of the evidence supporting a death senien
iewed only in those cases in which

has been
issue has been raised by counse!™ and the evident

has never been found wanting. More than i
capital convictions have been affirmed with oa

cursory appellate review of the issue. These revi
have occurred even though members of the cox
have twice expressed the view that findings «
dangerousness may not rest exclusively upon ps
chiatric evidence of the kind typically offered ®
the state.” and Judge Phillips has announced #
belief that a review of the sufficiency of the ex

* Hovila v. State, No. 56, 989. slip op. at 9 (Tex. Griz
App. Feb. 8. 1978) (quoting Robinson v. State.
$.W.2d at 65). Hovila’s death sentence was a!
despite the trial judge's refusal to permit his mothe
testify that after his mistaken release from custody pes:
ing trial he had returned to her home and had stayed =
of trouble and that four days later “when he discover
his release was a mistake he returned to Dallas with &
intention of surrendering to the authorities,” /d

Lhe evidence ... that Hovila did net murc

commii other criminal acts during a four-day period

would not show that he probably would or woud

not be a continuing threat to sociey—the ‘tia

court's error, if any, in refusing to admit this ev

dence was not so harmful as to require us to revene
Id. at 10.

7 428 US. at 276.

®* Shippy v. State. 556 $.W.2d 248, 256 (Tex Ce
App. 1977): Burns v. State, 556 S.W.2d 270, 261 ie
Crim, App. 1977}; Brock v. State, 556 S.W.2d 309.3
(Vex. Crim. App. 1977): Granviel v. State, 552 $
107, 123 (Tex. Crim. App. 1977): Smith v. Sta. #
S.W.2d 693, 696 (Tex. Crim. App. 1977); Moore v. Siz
542 S.W.2d 664, 676 (Tex. Crim. App. 1976).

* These include Denney v. State, 558 S.W.2¢ #
(Lex. Crim. App. 1977); Freeman v State, 556 $8.
287 (Tex. Crim. App. 1977); King v. State, 553 S.
105 (Tex. Crim. App. 1977): Battie v. State, 5:
401 (Tex. Crim. App. 1977); Collins w. State, 5486.
368 (Tex. Grim. App. 1977): White v, State, 54358
108 (Tex. Crim. App. 1977): Woodkins v. State, *
S.W.2d 855 (Tex. Crim. App. 1976): Boulware v. 5
542 S.W.2d 677 (Tex. Crim. App. 1976): Livingster
State, 542 S.W.2d 655 (Tex. Crim. App. 1976): Give
v. State, 542 §.W.2d 395 (Tex. Crim App. 1976).

™ Livingston v, State, 542 S.W.2d at 663 (Robers ,
dissenting). See also Smith v, State, 540 S.W.26 4
(Odom, J., dissenting), withdrawn before publican
reproduced in part in Dix, The Death Penalty, “Dasges

ness,” Psychiatric Testimony, and Professional Ethics, 3%
Crim. L. 151, 163-65.
ESAS 2 z 2 “a4
oe ie ae eS ca.
: ae
[Vol &

vment stag

the Supreme
the ability of
ls to provide.
» promote the
+ imposition of
ever, the suff
death sentence

sin which the
id the evidence
“fore than tea
med with onk
- "These resaiss

~ of the cou
at finding
_ ely upon ps-
aly offered
announced +
ncy of the ee

at 9 (Tex. Criss
sv, State, Se
we was affirned
1H his moth
mn custody pend
sd had stayed s
en, discovers

i with Be

nics. dd.

sot murder
uur-day period
ould or would

236 (Tex. Co
1b 270, 281 ¢Fen
8,.W.2d 309, 807
rate, 552 SW
hv. State. ~3¢
Moore v. Sts,
976).
398 S.W.td 27
ate, 556 SWF
state, 553 SW 28
State, 551 SW 22
ate, 548 §.W 2
rate, 543 SW 7
ns v. State. 82
ntlware w. Sane
6): Livingston s
. 1976): Ghodsen:
\pp. 1976).

663 (Roberss 3.
1) SW.2d at BE
fore publican
cnalty, “Dangerm:
ul Ethaes, 3 Avs 3

ee ere ene

sein

said

Seas eee

TEXAS CAPIT 2

since supporting a death sentence is constitution-
required.”

The Court of Criminal Appeals has declined to
sine the rather vague statutory language setting
‘eth the concept of dangerousness. Instead, the
say is typically asked to deter
=2 probability that the de
=atinal acts of violence that would constitute a

ie “whether there

ndant would commit

satinuing threat to society.“ For instance, in
ngs. State the court was asked to set aside a
ath sentence for the trial judge's refusal to define
‘tx terms “deliberately,” “probability,” “criminal
a8 of violence,” and “continuing threat to soci-
~The court noted that “the definition of
zmemon terms and phrases" is not required in a
harge to the jury and that “|iJn Jurch v. Texas...
Be Supreme Court of the United States concluded
at the submission of the issucs provided by Art.
RL, supra, constitutionally guided the jury's
seemmination of the punishment issues. No special
fGnitions of the terms of that statute were re-
aed.“ The court therefore held “that [it]...
need not provide special definitions for these terms
as charge to the jury during the punishment
sage of a capital murder trial.” The court had
wed similarly with regard to the term “probabil-
ss and defined it as follows:

“Likelihood” is one of the definitions for “probabil-
7 in Webster’s Unabridged Dictionary, 2d Ed.
368). Other definitions of the word probability
‘edlude “reasonable ground for presuming,” “true,
“ai or likely to occur,” “a conclusion that is not
xrv0f but follows logically from such evidence as is
‘ailable,” [and] “in the doctrine of chance, the
faclihood of the occurrence of any particular form
fan event.”

ing v. State, 553 S.W.2d 105, 108 (Tex. Crim.
tax 1977) (Phillips, J., concurring). Judge Phillips re-
sewed the evidence here and found it sufficient: he has
a zmducted such a review in subsequent capital cases
-ficmed by the court.

"Tex. Cope Crim. PROC. ANN. art. 37.071 (b) (2)
Nexon Supp. 1978).

353 S.W.2d 105.

* Granviel v. State, 952 S.W.2d at 117.6. The failure
wamrow these terms presents independent constitu-
satal problems. The United States Court of Appeals for
‘2 District of Columbia has noted that “when a deter-
utation of ‘dangerousness’ will result in a deprivation
# tir no court can afford to ignore the very real
‘eettutional problems surrounding incarceration pred-
‘sexdonly upon a supposed propensity to commit crin
‘a acts” Cross v. Harris, 418 F.2d 1095, 1101 (D.C. C
#53 cemphasis added). The court found it necessary to’

L SENTED

CING PROCEDURES

303

Relying upon the King judgment that the language
of the statute is “simple” and uses terms the jury is
“supposed to know," the Texas court has held
that the defense has no right to inform its judgment
regarding the use of peremptory challenges by
asking prospective jurors such questions as whether
they would deem a crime against property an “act
of violence.”

The jury which must decide the dangerousness
question, and with it the fate ofithe capital defend-
ant, is purged of individuals unable to swear that
“the mandatory penalty of death or imprisonment
for life ieall not affect |their] deliberations on any
issue of fact.” Ik

then, to a jury sworn to

dispassionate obje:

ivity that the medical expert
presents testimony that the defendant is a socio-
path and the ominous conclusion that he will
“constitute a continuing threat to society.”

This expert testimony is suspect on three
grounds, First, mental health professionals are no-
toriously bad at predicting dangcrousness and in-
variably err on the side of overinclusion.” Al-

construe a statute requiring commitment of dangerous

sex offenders to “provide an analytical framework to
guide lower courts in applying the conclusory term ‘dan-
gerous to others’. For,

[w]ithout some such framework, “dangerous” could

readily become a term of art describing anyone

whom we would, all things considered, prefer not to
encounter on the streets. We did not suppose that

Congress had used “dangerous” in any such Pick-

wickian sense. Rather, we supposed that Congress

intended the courts to refine the unavoidably vague
concept of “dangerousness” on a case-by-case basis,

in the traditional common-law fashion.

Id. at 1099.

* Battie v. State, 551 S.W.2d at 404.

Td. at 405.

“Tex. PeNaL Cope ANN tit. 3, § 12.31 (Vernon
1974). The Court of Criminal Appeals regards inability
to take this oath an independent ground for exclusion of
a prospective juror. This would seem to violate the prin-
ciple, established in Witherspoon v. Illinois. 391 U.S. 510
(1968), that exclusion of a juror opposed to the death
penalty is constitutionally impermissible absent an un-
mistakably clear expression of an inability to follow the
law. Freeman v. State, 556 S.W.2d at 297; Burns v. State,
536 S.W.2d at 275-79; Shippy v. State, 556 S.W.2d at
251; Moore v. State, 542 S.W.2d at 667-72.

“The evidence is reviewed in Svone, MENTAL
Heat anp Law: A System IN TRANSITION 23 40
(1975), with the conclusion that “[Jhe mental health
professionals . .. simply have no demonstrated capacity
to generate even a cutting line that will confine more
true than false positives.” Jd at 33. See also Ennis &
Litwack, Pochiatry and the Presumption of Expertise: Flipping
Coins in the Courtroom, 62 Catir. L. REV 693 (197
Dershowitz, The Law of Dangerousness: Some Fictions About
Predictions, 23 J. LeGat EDUC. 24 (1970).

304

though it has seemed a necessity in the mainte-
nance of a system of involuntary mental health
care, and a reasonable incident to the multidimen-
sional process of making sentencing decisions in
non-capital cases, psychiatric prediction of danger-
ousness is conceded to be highly unreliable by
virtually every student of the problem. And, while
the point has been made frequently and conchi-
sively. the concessions of several mental health
professionals bear repeating, It is admitted that
“the longer one works in {the mental health] field,
the more one is impressed with the problem of
deciding the question of danger...

I is also conceded that:

We cannot predict even with reasonable certainty

that an individual will be dangerous to himself or

to others. Thus the question as to what extent we

can exercise control over dangerous individuals

must be considered .... We can make an educated
guess, but what right does society have to act upon
a guess?

[W]e need to examine the important ethical prob-
lems that are a direct result of the present level of
knowledge in identification of violence-prone indi-
viduals. Concern about violence will inevitably lead
to the development of special treatment programs,
but the majority of persons placed in such programs
must be false positives. ... Confidence in the ability
to predict violence serves to legitimate intrusive
types of social control. Qur demonstration of the
futility of such prediction should have consequences
as great for the protection of ind
demonstration of the utility of violence prediction
would have for the protection of society.“*

‘There can be little doubt that “/tJhe judge or juror
who relies on the opinion of the expert [on the
question of dangerousness] acts less rationally than
he thinks he does. Actually he relies on a judgment
into which personal insights and experiences are
bound to enter so importantly that it cannot be
called scientific.”

The difficulty with the expert testimony pre-
sented in the Texas capital sentencing proceeding
is that the sociopath"® diagnosis is the most contro-

* Johnston, Releasing the Dangerous Offender, in THe
CuinicaL EVALUATION OF ‘THE DANGEROUSNESS OF
tHe MeNnraty Ist. 29, 34 (J. Rappeport ed. 1967)

* Usdin, Broader Aspects of Dangerousness, in Rappeport,
supra note 42, at 43.

“ Wenk, Robison & Smith, Can Violence Be Predicted?,
18 Crime & DrtinQuENcy 393, 402 (1972)

“van der Kvast, Can the Psychiatrist Foretell Crminal
Behavior?, 20 Inv. J. OFFENDER THERAPY & ComP
CRIM, 148, 151 (1976).

“ The terms sociopath, psychopath and antisocial per-
sonality are used interchangeably in psychiatric and psy-

PEGGY C. DAVIS

versial and perhaps the least precise in psychiatie
nomenclature.

The term “psychopath” is probably the most abured
word in the whole psychiatric vocabulary. Etymo
logically, the word itself is nonspecific: it merelr
means a sick mind. Such ambiguous terms are
readily subject to misuse. When a vague term &
employed, it usually means that the concept which
it represents is vague. and, unfortunately, this 3
true of psychopathy.”
\
There are some who think the term withox
scientific meaning® and many who think it exes
sively and irresponsibly used.” The following har.

acteristics were identified by Cleckley and are, «i

chological journals and will here be deemed to havetis
same referent

“M. GurrMacHer & H. WEIHOFEN, PsycHa
AND THE Law 86 (1952).

“(Doubts are frequently expressed as to whether
concept has a substantive referent.” Blackbura, 4a Ee
pirical Classification of Psychopathic Personality. 127 Brit 2
Psycu. 456 (1975). Blackburn concluded, however. te
empirical study, that the convergence of traits sad
attributed to the sociopath occurred with sufficient Se
quency to justify use of the term. 4. at 460. Robins cass
the diagnosis a “psvehiatrie wastebasket.” but, i ti
view of Lewis and Balla. “lignared] his own wera
[and] proceeded to conceptualize ‘an illness or syndrme
that included such a variety of behaviors... as to bearmt
meaningless.” Lewis & Balla, “Sociopathy” and les Sprpione
Inapproprrate Diagnoves in Ghald Psychiatry, 132 4a J
Psyeut 720 (1975).

A minority has maintained that the psychopath

personality, as a distinct clinical syndrome, docs cat

exist. One of these dissenters. psychiatrist Olof K>

berg, commented . .. “{the concept] should be 2

rogated as theoretically unsatisfactory, practical

misleading and destructive to scientific thinkive™

And Dr. Leo Kanner has commented, “A psythe

path is somebody you don’t like.”

W. McCorp & J. McCorn. Tr PsvcHopa ri 2:38
(citations omitted).
[A] substantial number of psychiatrists do not =
lieve there is any such condition. Many other ez:
cal psychologists who, somewhat reluctantly. rx.
ognize its existence, nevertheless regard the ps
pathic group as a dumping ground for unclassiicd
mental disorders. Psycho-analysts view the texr
with an equally jaundiced eve, and indeed reek
use it, preferring their own characterological
menclature, which however is. . . far from adequate

Even forensic psychiatrists... although readies 3f

all to accept the term, are not agreed as to its ex

connotation.
E. Glover. THE Roos oF CRIME 118 (1960)

* See, e.g, W. McCorp & J. McCorn, supra nem 8
at 20; Blackburn, supra note 48, at 456; Lewis & Sas
supra note 48, at 720: S. HALLECK. PSYCHIATR
‘THE DILEMMaS OF CRIME 101 (1967).

ie

i

~ [Vol &
in psychiaw
most abused

ry. Etymo-
ve it merely

‘s terms are
gue term is
ncept which
ately, this is

term withest
think it exces
Mowing chas-
and are, with

ed to have the
*
S, PSYCHIATR

+s towhether ie
vhburn, An Em
ny. 127 Bru ¥
1, however, ater
of traits usuals
+ sufficient fe
4), Robins cates
1” but, in the

snd Its Symptom
my 132 AM?

psychopathic
me, does not
ist Olof Kin-
nould be ab
: + practicalts
fic thinking

+ “A. psycho-

JOPATH 2 (1850

1 the psveho-
unclassified
w the term

cological no-
om adequate
on readiest of
as to its exact

+1960)

1, supra note
Lewis & Bata,
YCHIATRY 8%!

“y TE

sciations among investigators, commonly associ-
zed with sociopathy:

1. Superficial charm and good “intelligence.”

2. Absence of delusions and other signs of irrational
Sinking.”

3. Absence of “nervousness” or psychoneurotic man-
ations.

4, Unreliability.

5. Untruthfulness and insincerity.

8 Lack of remorse or shame.

7. Inadequately motivated antisocial behavior.

& Poor judgment and failure to learn by experience,

8. Pathologic egocentricity and incapacity for love.

30 General poverty in major affective reactions.

A. Specific loss of insight
12. Unresponsiveness in general interpersonal rela-

83 Fantastic and uninviting behavior with drink and
‘sorties without.

U8. Suicide rarely carried out.

15, Sex life impersonal, trivial, and poorly integrated.

18. Failure to follow any life plan.”

There is strong disagreement as to whether the
uxm identifies a discreet clinical state or a tendency
ward a mode of acting out conflicts common to
zrange of personality types.” The absence of a

, THE Mask oF Santry 355-56 (1950
ion accepted by the American Psychi-
am Association is:

¥ unsocialized and whose behavior pattern
Sings them repeatedly inte conflict with society,
They are incapable of significant loyalty to individ
sis, groups. or social valucs. They are grossly
fish, callous, irresponsible, impulsive, and unable
so feel guilt or to learn from experience and punish-
ssa. Frustration tolerance is low. They tend to
Same others or offer plausible rationalizations for
Seir behavior. A mere history of repeated legal or
scial offenses is not sufficient xo justify this diag-
resis. Group delinquent reaction of childhood (or adoles-
sswr) (q.v.), and Soctal maladjustment without manifest
nairic disorder (q.v.) should be ruled out before
aking this diagnosis.”
AWERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC
we SravisticaL MANUAL OF MENTAL DisoRDERS 43
es
* in current literature the term “psychopathy” is
defined vaguely and because of arbitrary usage
‘reads to assume multiple meanings. . . . [T]wo major
‘sages predominate. There are those persons who
would agree ... that psychopathy is a personality
Gworder, a discernible clinical entity which can be
slated from other disorders and which is clearly
Samosable. There are others who see ... psycho-
gathy as a hypothetical rather than an absolute
madition. They would view psychopathy as a re-

(AS CAPITAL SENT

305

CEDURES

satisfactory or agreed upon clinica! definition or an
identifiable intrapsychic dynamic has led research-
ers to “classify” sociopaths in terms of their behav-
ior. with the result that frequently the classifica-
tion either explains nothing or sweeps too broadly.
On the other hand, objective classification systems
which attempt to take account of things other than
behavior are demonstrably unreliable.

The causes of sociopathy are also disputed. The
onset of the disorder tends to occur between the
ages of ten and thirteen. Yet, rejection, emotional
starvation and parental hostility in the first or first
three years of life have been advanced as its
causes,* as have carly institutionalization.” incon
sistent parental responses” and defective neurolog-
ical structures.

‘The strong correlation between parental rejee-
tion and the sociopath diagnosis makes. plausible
the dynamic hypothesis that the sociopath is an
individual engaged in a “search for a painless

sponse 10 the same kinds of conflicts that produce

neurosis but would recognize that some individuals

have a tendency to develop hypertrophied alloplas-

tic behavioral patterns. Psychiatrists who support

this proposition argue that one does not see real

psychopaths, only individuals who are more or less
psychopathic.
S. HALLEOK, supra note 49 at 101.

” See, eg, Campagna & Hasier, Moral Judgment ix
Sociopathic and Normal Children, 31 J. PERSONALITY & SOC
Psvear 199, 200 (1973). Cf W. McGorn & J. MeCorn,
supra note 48, at 4, on the problem of diagnosis (“the
observer should possess more than the usual amount of
knowledge of his patient; he cannot depend, as with
many other disorders, on the overt behavior symptoms,
or complaints of the subject at the time of contact”)

* Psychological testing of adolescent delinquents and
volunteers (ministers, psychologists, social workers, cor-
rection officers, psychiatric residents and graduate siu-
dents) in a mental health collective identified more than
fifty percent of each group as psychopathic. Hawk & Peter-
son, Do MMPI Psychopathic Dexancy Scores Reflect Psycho-
pathic Deviancy or Just Deviancy?, 138 J. PERSONALITY
ASSESSMENT 362 (1974).

* Campagna & Harter. supra note 52, at 200,

Sw. McCorp & J. McCorb, supra note 48, at 83:
H, Gurimacner & M. WEIHOFEN, supra note 47, at
107-08.

% Humphrey, A Study of the Etiology of Socopathic Behav
ior, 35 Disbases OF THE Nervous SystrM 432 (1974)

* Campagna & Harter, supra note 52. at 203

Sw. McCorp & J. McGorn, supra note 4
(“more psychopaths seem to have defective neural str
tures than would be expected in a normal population,
and it seems likely that such defects have some causative
importance”). Recent research has focused upon the
possibility of atypical responses to stimuli which preclude
‘or inhibit avoidance learning. See ScHACHTER. Emo.
HON, Opestt'y AND CRIME 152-83 (1971)

306

freedom from object relations” which serves as “a
defense against the intolerable experience of help-
lessness."” Nevertheless, no explanation of the con-
vergence of symptoms has won 2 concensus. In
sum, the diagnosis tells us little more than that a
subject exhibits, for unknown reasons, a cluster of
characteristics which may or may not suggest an
identifiable intrapsychic dynamic.

The third difficulty involved in the use of psy-
chiatric testimony indicating that a Texas capital
defendant is a sociopath is that despite the fact
that the criminal ar antisocial conduct is seen as
an identifying symptom of sociopathy, there is.
surprisingly, no reason to hope that pyschiatric
predictions of dangerousness will be significantly

more reliable within the universe of persons diag-
nosed as sociopaths. Whether because the diagnosis
is meaningless,” or difficult to make,” or broader
than the behaviorist referent,” it does not permit

3S. Hat . supra note 49, at 193-04. A clinical
example is presented in which a sociopath recalls that at
the age of nine, abandoned by his father, he was helpless
to avoid being left alone for long periods by his mother.
He thought of pleading with his mother, and stated:

Then suddenly it came to me that no matter what

I did, no matter how much I cried or pleaded, it

wouldn't make any difference, she would lcave

anyway. At that moment somehow or another. 1

was a free person. I didn’t need her and I didn’t

need anybody. I stopped worrying and I started
having fun, Since that time life has been easy, and

J can be happy even though I am in prison.

Td. at 105.

© See note 48, supra,

” See notes 49-53, supra and accompanying text.

" Halleck and others maintain that “the psychopath
is not necessarily a criminal. He certainly need not be an
unsuccessful criminal. If a really pure psychopath could
exist, his success in the world would probably preclude
his ever coming to the attention of a psychiatrist.” S,
HALLECK, supra note 49. at 101. Indeed, criminal or
violent acting out is seen as a failure of the defense. Id. at
108-14. Cleckley recognizes in some apparent sociopaths
an ability to commit, and sometimes repeat, violent,
antisocial acts, but finds such conduct so atypical as to
warrant modification of the diagnosis:

The [typical] psychopath, as I have seen him, usu-

ally does not commit murder or other offenses that

promptly lead to major prison sentences. This is
true of the disorder as I present it in what I consider

a pure culture, A large part of his antisocial activity

might be interpreted as purposively designed to

harm himself if one notices the painful results that

so quickly overtake him. Of course I am aware of

the fact that [many] persons showing the character-

istics of those here described do commit major
crimes and sometimes crimes of maximal violence.

There are so many, however, who do not, that such

tendencies should be regarded as the exception

rather than as the rule, perhaps, as a pathologic

PEGGY C. DAVIS

a reliable prediction of dangerousness.

A search of the literature reveals only one std:
of the dangerousness of severe sociopaths. All of:
sociopaths in this study had been convicted of x
least one crime, and all had been diagnosed pr
mary psychopaths. One quarter were convicied #
no additional crimes during a fifteen year follow

up:

Forsome 13 years we... have followed the subse
quent convictions of 70 prisoners... who were
picked out as undoubted examples of psychopatine
personality of a severe grade, We bave compara
them with’ nonpsychopathic prisoners. Althoaeh
most of them have hecame very serious recidivier
and have heen in prison for much of the time, 2
quarter of them, to our surprise, have never bres
reconvicted. In the last 5 years of the 15 follow-ne
just completed, the psychopaths who have been a:
liberty during this period have hardly been rea
vieted more often than a control group.”

The ability of psychiatrists to predict seri #
saultive crimes among offenders who had commits!
at least one criminal act and fit identical
“classical stereotype of the criminal or antise
psychopath,” has been tested in an effort in
sachusetts to identify and treat dangerous «+ x
fenders.” Of the thirty patients found to be és
gerous after thirty months of treatment and =
uation,” less than thirty percent committed se
assaultive crimes.”

If psychiatric experts in Texas capital sentence
proceedings believe, as they seem to, that a!
“severe” sociopaths are dangerous, they may. b=
overpredict simple recidivism in one out of fxr
cases. If they were to conduct extensive anaim&

wait independent, to a considerable degree, of tt
other manifestations which we regard as fundan <>
tal
H. CLECKLEY, supra note 50, at 290. The task of identi
ing an independent pathologic trait leading to sire
behavior may be no easier when the subject isa diaz:
sociopath than when he is not.
© Gibbens, Briscoe & Dell, Psychopathic and Yow
Offenders in Mental Hospitals, in THE MENTALLY $m0%
MAL OFFENDER 143-44 (de Reuck & Porter eds. 19%
* Kozol, Baucher & Garofalo, The Diagnosis and Ft
ment of Dangerousness, 18 CRIME & DELINQUENCY
379 (1972).

°° Kozol, Baucher and Garofalo, supra note 64 i

Evaluations were by a team including psvchiowsn
psychologists and a social worker and drew upon “desse
examinations, psychological tests, and a meticukess
construction of the life history elicited from mite
sources.” /d, at 383

° Id. at 391. 5
°* See Dix, supra note 16, at 157,

rows as
unitted
ath the
tisociad

tencing
hat ali

then,
of four
nalyses,

of the
sens

f idenif-
violess
hagnesed

nd Tres-
Noy STL

vt.

chiatrist,
n “clinical:
culous re

/ muttigic

DE ENURESIS US HEA a RS

RE

S38) TEXAS CAPITAL SENTENCING PROCEDURES 307

aad they do not," they might overpredict serious
asaultive behavior by as much as seventy percent
Ye. their pronouncement that there is a probabil-
ge that the defendant will commit future acts of
silence because he is a sociopath must skew the
sniencing process away from a balancing judg-
spent reflecting contemporary morality and toward
angid process of classification. Analogous conflicts
deoveen the factfinder’s tendency to label at the
Srection of psychiatric experts and its duty to
wake an independent judgment are instructive.

Lessons FROM ANALOGOUS Usbs OF
Psventarric: EVIDENCE
ial and legal judgment made by

The moral, so
a jury deciding the appropriateness of a death
semtence is much like that of a jury deciding the
capability of a defendant who raises an insanity
fefense. Here too the psychiatric expert may in-
it jury deliberation:

With the relevant information about the defendant,
and guided by the legal principles enunciated by
the court, the jury must decide, in effect, whether
ornot the defendant is blameworthy. Undoubtedly,
the decision is often painfully difficult, and perhaps
ats very difficulty accounts for the readiness with
which we have encouraged the expert to decide the
question, But our society has chosen not to give this
decision to psychiatrists or to any other professional
ele but rather to twelve lay representatives of the
eamumunity.”?

Ehas been determined that “in view of the com-
yicated nature of the decision to be
made--imertwining moral, legal and medical
vadgments—the insanity defense is peculiarly apt
iw resolution by the jury.” And, it has been
srquired “that trial judges and appellate judges
sesure that the jury base its decision on the behav-
smal data which are relevant to a determination of
Sumeworthiness,’”? rather than the conclusions
aes classifications of experts. Psychiatric experts
dave therefore been discouraged from stating a
Saple conclusion as to whether an alleged crime
vasa product of a mental disease or defect where
“iat determination is essential to a determination
insanity.” They have been asked instead to give

* Se Dix, id, at 155, 159; Battie v. State, 551 $.W.2d
eV.

* Washington v. United States, 390 F.2d 444, 453-54
IRC Cir. 1967).

~ dams v. United States, 413 F.2d 411, 416 (D.C.
Sir 4969) (quoting King v. United States, 372 F.2d 383,

#2-D.C. Cir. 1967).
? Washington v. United States, 390 F.2d at 447.

Fé at 455-56.

“the kind of opinion you would give to a family
which brought one of its members to your clinic
and asked for your diagnosis of his mental condi-
tion and a description of how his condition would
be likely to influence his conduct." It has also
been required that the charge (o the jury admonish
it against excessive reliance upon the expert’s con-
clusions.”®

Conclusory psychiatric testimony has also been
found to inhibit intelligent decision-making where
civil commitment is authorized for the dangerous.
In words that ring truer, perhaps, in this context
than in that for which they were written, the
United States Court of Appeals for the District of

Columbia Circuit has said:

It is particularly important that courts not allow
this second question to devolve, by default, upon
the expert witnesses. Psychiatrists should not be
asked to testify, without more, simply whether fu-
ture behavior or threatened harm is “likely” to
occur. For the psychiatrist “may—in his own
mind—be defining ‘likely’ to mean anything from
virtual certainty to slightly above chance. And his
defination will not be a reflection of any expertise, but
4% * of his oien personal preference for safety or liberty.”
Of course. psychiatrists may be unable or unwilling
to provide a precise numerical estimate of probabil-
ities, and we are not attempting to so limit their
testimony. But questioning can and should bring
out the expert witness's meaning when he testifies
that expected harm is or is not “likely.” Only when
this has been done can the court properly separate
the factual question what degree of likelihood ex
ists in a particular case—from the legal
‘one—whether the degree of likelihood that has been
found to exist provides a justification for commit-
ment.®

It is also significant that in the insanity defense
context, the diagnosis of sociopath—once thought
to imply too much rationality and too little com-
pulsion to warrant mitigating treatment—is in-
creasingly thought to present a challenge to the
presumption of responsibility which only the jury

74 Id. at 458. The modification of the Washington rule
in United States v. Brawner, 471 F.2d 969 (D.C. Ci
1972) eliminates the prohibition of “ultimate fact” te
mony, but in no way reflects a diminished concern that
the proper role of the jury be maintained; under existing
procedures, the court is to make it clear to the jury, by Its
instructions, that “{t]he experts add to perspective, with-
out giving decision. The law looks to the experts for
input, and to the jury for outcome.” /d. at 1007.

% See 471 F.2d at 1006-07

78 Cross v. Harris, 418 F.2d at 1100-01 (citations omit-
ted) (emphasis added).

= es : = :
oe ape es
308

may resolve. The Ninth Circuit has held, in a case
involving testimony by a government witness that
the defendant was a sociopath who could distin-
guish criminal and legal conduci, but could not
“appreciate the morality of his conduct,” that the
trial judge committed reversible error in failing to
instruct the jury that “ ... for purposes of the
insanity defense, ‘wrongfulness’ means moral
wrongfulness rather than criminal wrongfulness."
Moreover, the Fourth Circuit has held that the
diagnosis that a defendant “is an Antisocial Per-
sonality and was so at the time of the alleged
offenses, at which times he was able to appreciate
the criminality of his act, but he was not able to
conform his conduct to the requirements of the
law," is evidence which entitles the defendant to
take the question of insanity to a jury. The Fourth
Circuit has also maintained that “[tJhere is enough
doubt about a sociopath ... . to call for an exercise
of the jury's moral judgments.”® Finally, appellate

United States v. Fresonke, 549 F.2d 1253, 1255 (9th
Cir. 1977) (quoting the testimony of Dr. H. Kaufman, a
psychiatrist who testified as an expert witness for the
Goxernment).

United States v. McGirr, 434 F.2d 844, 46 (4th Cir
1970).

” Id. at 849. The conviction was reversed because the
defendant's motion to withdraw his guilty plea in light of
the diagnosis had been denied. The psychiatric report
stated:

The patient did state thai he feit that he was not

able to control the actions leading up to the com-

mission of this crime and although this is said with
the same glib facile manner, nonetheless the staff is
of the opinion that he is correct that the commission
of these crimes is part and parcel of his sociopathic
personality. He will so be reported to the Court,

Ta. St. Elizabeth’s Hospital, the examining agency, had

decided in 1957 “to treat sociopathic personality disturb-

ance as a mental illness.” United States v. Brawner, 471

F.2d 969, 1017 n.18 (D.C. Cir. 1972) (Bazelon, J., con-

curring in part and dissenting in part)
* United States v. Wilson, 399 F.2d 459, 463 (4th Cir.

1968). The evidence here was reminiscent of that typi-

cally presented in a Texas capital sentencing proceeding
with, of course, conclusions of blameworthiness rather
than dangerousness. Significantly, Judge Sobcloff said,
dissenting from affirmance of the conviction and the jury
determination that the defendant was not legally ins
When psychiatrist and counsel fail to provide suffi-
cient underlying information to the jury, the judge,
I maintain, has some responsibility to help elicit this
vital information. Although ours is indeed an ad-
versary system, a criminal ‘rial is not a game. It is
a solemn proceeding in which moral judgment is
pronounced. As the governor of the trial, and not a
mere moderator, the judge has an affirmative duty
to do all that is feasible to assure that these judg-
ments are based upon all the relevant evidence. The

ne:

PEGGY C. DAVIS

opinions affirming convictions of diagnosed socio
paths occasionally have expressed, however in

judge should not hesitate to prevent the distortioa
of the jury's perspective by counsel's deficient exple-
ration of the underlying, determinative facts. tx
some cases, the court may feel obligated to suggest
that additional witnesses be called. At the very least
it should ensure that the psychiatrists who do testi
describe the investigations, observations, reasoning
and medical theory which led to the ultimate opia-
ion, as voiced on the witness stand

Professor McCormick has declared that the

s of inference on general
description shall first give the concrete details ups
which the inference or description is founded, so far
as feasible.” The need for judicial supervision =
particularly urgent in insanity cases. where the a¢-
versary system may malfunction because of the
inexperience of counsel, the complexity of the is
or both. Most criminal defendants are represented
by court-appointed lawyers with little experience
criminal law or even other areas of trial work. These
lawyers must master new fields of law and new
skill, When, in addition, it becomes their task «
present a defense of insanity. which involves elusive
medical, legal and moral problems. they are vfs
understandably overwhelmed. In these circus,
stances, intervention from the bench may be absx
lutely essential for a fair trial.

In the instant case, the trial judge did play more
than a passive role. On several occasions he com
mendably required the expert witness to clarify he
opinions. But he never demanded that the psy
atrist present the factual basis for his opinions. Tha:
the jury never obtained a complete unfolding of
defendant’s emotional and mental processes. if tha
had, they might have acquitted by reason of insaz-
ity.

Id. at 465 (footnotes omitted). The opinion of the ex

further commented upon the “factual sparsity of

record,” id. at 462, indicating that had the trial occurs:
after the more recent announcement of judicial rules te

the presentation of psychiatric testimony on the isue J

sanity, it would have remanded “for a retrial on the ia

of mental responsibility.” Id
[T]he expert witness was allowed and encouraged
to state his conclusionary appraisal of the defendant
Conclusionary answers were given to questions
which called for them and which, most frequent,
were attempted to be cast in terms of ultimate
inferences. ‘Does the defendant know the difference
between right and wrong?” ‘Has he the capacity 19
refrain from doing what he wants to do if he wants
very much to do it?” These are summary pare
phrases of a barrage of questions that ultimate
clicited in considerable detail the psychiatrist's sum
mary description of the defendant. No one, howeses,
asked the witness about the bases of his judgment..
The deficiencies of the record here seemingly resui
from an elementary preference for the unexamined

nosed socio-
swever indi

distortion
vent explo-
© facts. In
1 to suggest
+ very least
w do testify
. reasoning
mate opin

{that the
ld be pre-
tal judge is
ness before
on general
setails upen
ded, so faz
crvision is
vere the ad-
vase of the
the issue.
represented
perience in
cork. These
~ and new
reir task to
‘ives elusive
are often
se circum.
S60

1 play more
ns he com-
clarify his
rhe psychi.
ions. Thus
voiding of
ses. If ther
vn of insan-

2 of the cou:
arsity of Se
vial occured
hueial rules Ser
n the issue at
n the iscae

“neouraged
defendant
questions

-apacity 10
* he wants

nary pare-
ultimately
trist’s sume
however,
ament...
ngly reseh
examined

y CAPITAL S

“ly. a mix of reservations about the verdict and
seculation that it was dictated by the form of the
egal test or of the expert testimony.”

There is at least one case of acquittal despite a
‘nding of sociopath:

The report of the psychiatrist representing the court
xa with the consent of the prosecution and the
‘skfense, admitted into evidence. In it he said, “On
tbe basis of the existing Maryland law, this patient
sust be considered a responsible agent, since he has

Se capacity to distinguish right from wrong and to
nalize the consequences of his act. Yet, he has not
ern the ability to conform to society's demands

shat many insane individuals poss
The defense psychiatrists all maintained that he
4 not kn
xhat the line of reasoning of Jerome Hall, a distin=
ed American law professor, they asserted that
% Swing did not denote intellectual cognition alone
4 Bat included an ability to make use of such knowl
sige. Being greatly affected by the tragedy of the
aged parents and having the court's a:
ner in answer to a specific question of the foreman
at on no condition would he be at large to prey
spon the community, the jury found him not guilty
reason of insanity. This was the first instance in
Maryland law in which a psychopath was found
2 Wiguilty by reason of insanity. As such, it attracted
%  aiention even outside the state The Baifemore Sun
$ alled it a victory for the common sense of the jury
2 am that it disregarded the “peculiarly backward
3 Seinition of insanity” under Maryland Jaw and
‘Srought “the definition into full accord with the
-aiest findings of psychiatry.

w tight fom wrong, Following some

sure

4} svactusions of the expert witness over their factual
zerdicates. It was only by happenstance that the
ness testified that there was very little violence
Wilson’s history. and the paucity of other basic
xformation is proclaimed by the fact that we know
‘wthing else about him except that he was forty-six
was old, white and divorced, The doctor testified
a Wilson had been a failure in everything he ever
smpted, but the jury and we know nothing of
sathing Wilson ever attempted except marriage,
and that is entirely unelucidated.
me
“Se note 81 supra; Apgar v. United States, 440 F.2d
“EIS (Bth Cir, 1971) (“we feel compelled to say that
She defendant's] life ... demonstrates the tragically
2 sadquate response of our institutions—mental, penal
2 ex pticial—to an individual whose acts, time and
sewn. constituted a plea for assistance to overcome severe
sexmal inadequacies”); Adams v. United States, 413
225.411, 415 (D.C. Cir, 1969) (whatever evil may be,
2% sacommonly difficult to discover it in the squalid
ef this man”)
. GUITMACHER & H. WEIHOFEN, supra note 47,
2R2,

ENT!

NCING PROC

309

And, the McCords have reported a case in which
the Governor of Maryland. “question|ing} the va-
lidity of sentencing a man because of a prediction
concerning his peril to society.“* commuted the
sentence of a sociopath condemned to die.®

Two conclusions may be drawn from these cases
involving similar decisionmaking or similarly di-
agnosed criminal defendants. The first is that a fair
hearing on a question which involves a measure-
ment of culpability requires that the factfinder be
given all “data relevant to blameworthiness
bolstered against reliance upon conclusory expert
testimony which fosters the delegation of its role to
the psychiatric ex

pert. The second is that the x

diagnosis which has led to the condemnation of
‘Texas capital defendants may be decmed mitigat

ing where decisions are free of rigid formulae (so
ciopath = not psychotic = able to distinguish
right and wrong = able to conform to the require-
ments of law) and decisionmakers are able to see
the data, and the individual, behind the labels.

Texas has traditionally thought sentencing judg-
ments best made by juries.” It has, moreover, been
‘on guard lest the proper role of the jury be usurped
by psychiatric experts

& W. MeCorp & J. McCorn., supra note 48, at 200,

® The sentencing judge had said:

[The defendant] is a mentally abnormal person, and

I knew him to be so when I sentenced him to hang.

There is something very ugly about that bald state-

ment. Even a judge who believes in capital punish-

ment would hesitate a long time before he imposed
the death sentence upon a person known to be
mentally irresponsible. 1 do not believe in capital
punishment ... society confesses its own failure
every time it exacts a life for a life

Id. at 174,

The Governor (Albert C. Ritchie) had this response:

What I cannot understand is how the Court could

first decide—as it did—that {the defendant's] men-

tal disorder should be considered in mitigation of
punishment, and that he should not be hanged: and
then sentence him to be hanged anyhow, not for his
crime, but because the penitentiary is the only place
to which he could be committed

Ia.

The McGords themseives said, of the execution of
sociopaths, that “[slince execution precludes (he possibil
ity of better treatment, spontancous ‘conversion,’ or cor-
recting mistaken diagnoses, it hardly seems a just solution
to society's problem.” Jd, at 188-89.

*° Washington v. United States, 390 F.2d at 447.

"The first legislature of the State of Texas passed a
statute requiring that the jury assess punishment in crim-
inal cases (1 Laws of Texas 161 (Gammel 1898)); the
practice has not been significantly altered. See LaFont,
Assessment of Punishment —A Judge or Jury Function?, 38 Tex
L. Rev, 835 (1960).

310 PEGGY ©. DAVIS

The conclusion to be reached in matters of this sort
is for the jury. It is not the province of an expert to
give his opinion as to how a party accused of crime
shall he punished in case of a conviction, He may

say that the party is sane or insane, but it has not
id be right filly
held, that the expert could express his opinion as to
the amount of punishment that the jury should

assess in case they found that the accused was not

n held, nor do we believe ite

be

insane.

Yet, the Texas Court of Criminal Appeals has met
the charge that psychiatric testimony of the kind
typically used by the State in capital sentencings
nd constitated an invasion of the
province of the jury” with the response that: “t]he
judge. on the basis of common knowledge, im-
pliedly found that the behavior patterns of a socio-
path were beyond the knowledge of laymen and
that the witness’ knowledge and experience in this
field would assist the jury. The evidence was
properly admitted." The court did not consider
the relevancy of sociopathy to the questions before
the jury, nor did it exhibit any inclination to
articulate standards to assure that the expert testi-
mony would inform rather than dictate the judg-
ment.”

One can advance compelling justifications for
permitting conclusory expert testimony and for
permitting expert testimony as to the ultimate fact
at issue.”' But there is a constitutional need to

was “speculative

® Duke v. State, 61 Tex. Crim. 441, 444, 134 S.W. 705,
707 (1911). See also State v. Nickens, 403 S.W.2d 582, 587
(Mo. 1966}.

*° See Battie v. State, 531 S.W.2d at 407. See also Moore
v. State, 542 S.W.2d at 676.

® The only hint the Texas Court of Criminal Appeals
has given that it disfavors the form and effect of psychi-
atric evidence of this kind in capital sentencing is its
statement in reviewing the sufficiency of the evidence
presented in Burns v. State, 556 S.W.2d 270 (Tex. Crim
App. 1977), to support a death sentence. The court stated
that “[wle find the facts adduced at the guilt stage of the
trial in the instant case to furnish greater probative
evidence to support the jury's answer than an opinion
which may be gleaned by a brief psychiatric examina-
tion.” fd. at 280,

" See FED. B. Evin. 704, Notes of Advisory Committee
on Proposed Rules (1975)

[Vol er

assure that the Texas capital sentencing jury «di
understand and exercise its discretion to “considar

. not only why a death sentence should be im
posed, but why it should not be imposed." #
em. therefore, that courts supervising te
‘Texas capital sentencing process have “an affirms
ative duty to do all that is feasible to assure this
these judgments are based upon all the relevars
evidence,” and that the life-death decision rests
de facto, with “twelve lay representatives of the
i Texas courts have taken no steps
control the impact of conclusory psychiatric tee
mony. Moreover, the jury is not told of its authors
to respond to umitigating evidence but swore 4
The terms defining the concept da

would s

community.

objectivity

gerousness have not been narrowed to exclude even

trivial threats or remote possibilities.” The
judge has discretion to exclude apparently relevast
mitigating evidence,” and the sufficiency of the
evidence of dangerousness is, as a rule, ver
viewed.%*

Professor Dix has suggested that the psychiatric
profession has an obligation in situations of ths
kind to insist that the jury not listen to its experts
without a frank statement of psychiatric limits.

% The circiimstances surrounding and esac

tions,
erbating the problem of the expert who appears
but is not qualified (1) to know what dangerousness
is! and (2) to identify it suggest a legal remede
as well. They suggest that the Texas death penahs
laws have failed in their operation to allow tho
meaningful considerations of particularized mii
gating circumstances!” which are “a constitutico-
ally indispensable part of the process of inflicting
the penalty of death.

® Jurek v. Texas, 428 U.S. at 271.

"US. v, Wilson, 399 F.2d at 465 (Sobeloff, J. de
senting).

™ Washington v. United States, 390 F.2d at 454

® See note 40, supra and accompanying text

* See notes 30-39, supra and accompanying text

* See notes 24-31, supra and accompanying text
® See note 31, supra and accompanying text.
°° Dix. supra note 16, at 151
™ See notes 30.34, supra and accompanying text
© Sre notes A149, supra andl accompanying text.
nm? Jurck v. Texas, #28 U.S. at 272.
"Woodson v. North Carolina, 428 US. at 304.

soot

on)

TEXAS DEATH PENALTY FACT SHEET

Background: In 1972 the U.S. Supreme Court banned the death penalty nationwide because of its “freakish and arbitrary”
application. States rewrote their guidelined, and in 1976 Texas’ revised death penalty statute was accepted by the Court
(Jurek v. Texas). In 1982 Charles Brooks became the first Texan to be executed under the statute.

Death Row: Texas’ death row poulation currently stands at 385, the largest death row in the United States and 25 persons
more than all of South Africa. Of the 36 states which currently have death penalty statutes, only three (Texas, California
and Florida) have death rows larger than 200 people. The majority of death penalty states (21) have death rows with or
under 50 residents.

Executions: Texas stands out not only in number on death row but also in number executed. Texas alone accounts for
over one-fourth (32%) of the nation’s executions {77 out of 241) since 1976. Less than 11% of the nation’s executions (25)
have taken place outside of the South.

Racial Factors: Of the 385 on Texas’ death row , 43% are white, 39% black, 16% Latino, 2% Asian or Arab. Almost 90%
were convicted of the murder of White victims.

A November 1985 study by the Dallas Times Herald showed that in Texas, killers of whites are five times more likely to face
capital charges than killers of blacks.Blacks who kill whites are 13 times more likely to face capital charges than whites
whe kill blacks.

Lega! Representation: Most of those death row are poor, did not have money for legal representation at their trials and
had to be appointed attorneys by the court. A study by the Texas Judicial Council showed that defendants with court-
appointed attorneys in tcapital trials were twice as likely to receive death as those with the resources to retain private
counsel. Those on death row are forced fo rely on volunteer attorneys to represent them on appeal, and many are currently
without lawyers.

Texas, It's Like a Whole Other Country.

Special issues: Three of the 77 people executed in Texas were juveniles (under 18 at the time of their crime). From 1982-
88, juvenile executions occurred in only five countries: Rwanda, Barbados, Bangladesh, Pakistan and the U.S,

Texas’ death row population also includes the mentally retarded. Johnny Penry with an estimated IQ between 50 and 60
and the reasoning of a 6 or 7 year old sits on death row despite having his death sentence thrown out by the U.S. Supreme
Court.

The innocent are also among those on death row. In September 1987, a Texas judge ruled that Clarence Brandly’s 1980
conviction was wrongful and had been motivated by racism. Brandly sat on death row awaiting decision for nearly 10
years until the appeal decision finally allowed him to go free. In March 1989, a Randall Dale Adams was released after
serving 12 years for a crime he did not commit. And in May 1993, Leonel Torres Herrera was executed despite the fact that
evidence existed that he was not guilty of the crime he was accused of. The court's ruling stated that innocence was not
grounds to stop the execution as long as the process was adhered to. Process seems to be much more important than
people’s lives, especially if you're black or Latino. Many other questions have been raised about the innocence of various
persons now on Texas’ death row.

Crime Rate: The death penalty has never proven effective in deterring crime. To the contrary, states that have reinstated
the death penalty have shown an Increased rete of criminal homicide. Texas not only leads the nation in executions, but
since 1983 has had the highest per capita homicide rate in the country (FBI Crime Reports).

Cost: Extensive legal process in a capital case drives the cost execution to far beyond that of life imprisonment. In 1987,
it was estimated that the death penalty had already cost the state $183.2 million, $80 million more than the cost of non-
capital trials with extended life sentences.

The National Coalition to Abolish the Death Penalty is ready to

July 1994

TO: All NCADP Members
FROM: Ricardo Villalobos, Organizing Coordinator
RE: A Special Campaign in Texas

Almost incredibly, the department of tourism in the nation’s most
prolific death factory has come up with a winning siogan for the anti-

death penalty movement:

“Texas -- it’s like another country.”

Yup, Texas is like another country -- perhaps Iran or Iraq, or China,
where they shoot prisoners in the back of the head without the benefit
of appeals or clemency. Texas has developed a death machine that
grinds away day after day with incredible precision.

This is a special letter to our membership asking for your help in a

very special campaign to throw more than a few kinks into the ma-
chinery of death in the Lone Star State.

At the end of this month, during our annual conference in Little
Rock, Arkansas, the NCADP will launch a “Mess With Texas” cam-
paign -- a chance for abolition activists around the country to engage
in a little warfare. The campaign will have several components.

Within Texas, we’re already working with a broad range of activ-
ists, attorneys, religious leaders and others to bring together, coordi-
nate and strengthen the state’s abolitionist community. With them,
we’re beginning to develop a nuts and bolts education and organiz-
ing campaign to take the sheen off the Texas death penalty.

® We will focus primarily on Harris County, Texas, a county that has sent
more men to death row than the rest of the state combined. In fact, more
Harris County prisoners have been executed than total prisoners executed in
any other state.

@ We’re making contacts with social service providers and those fighting
for a share of the state’s limited resources for programs in education, child
abuse and drug abuse prevention, while Texas spends over $15 million annu-
ally on the death penalty.

® We’re discussing ways to curb the rampant legal errors so evident in the
Texas death process -- errors that have allowed Texas to send unprecedented
numbers of innocent men to death row.

Outside Texas, we’re answering requests from many of you for
ways you can help fight against the slaughter. Our national campaign will
combine efforts to support our Texas colleagues in their legislative, educational
and organizing work, with some spirited efforts to direct a national spotlight

on the problem and enlist the public’s support in condemning the devastating.

Texas death machine.

@ We’ll help pressure the Texas Board of Pardons and Parole to hold
hearings in death penalty cases.

© We'll bird-dog Texas Governor Ann Richards, challenging her anti-
crime program which consists almost exclusively of abetting executions while
the state has climbed to #3 in homicide rates.

@ We'll lobby to end the execution of prisoners in Texas with mental
tetardation.

@ We'll direct the attention of the intemational justice community on this
other country, and ask for their help.

@ We'll pressure the U.S. Justice Department to investigate race dis-
crimination in Texas’ death penalty.

~~ “One of oar first steps in messing with Texas is the production “of ani
organizing packet for individuals who want to be part of the Texas
campaign. We hope to have that packet available at our national
conference in July.

Our “Mess with Texas” campaign is part of our budget and plan-
ning for this year. But so is special fundraising to help cover the extra
costs. As we prepare some proposals for foundation support for our
overall Texas effort, we’re asking you to help get our organizing packets
prepared.

> The packets will include:
** mock “tourism brochures”
** a comprehensive report on the death penalty in Texas
** organizing tips and action ideas, plus
** a potpourri of stickers, information and organizing tools.
We’re estimating the production costs to be about $7,000.
Here is what you can do!

© Your gift of $25.00 will pay for 1,000 of our full-color printed “tourist
brochures” which can be tucked into the seat pocket of the plane that
carries you home from the national conference or any other trip you take
this summer!

@A gift of $50 will cover the costs of 1,000 special “Mess with Texas”
stickers, which lock great when adhered to appropriate places at the cowboy
bar nearest you which serves “Lone Star Beer”.

~ @A gift of $250 will provide 50 activists with the comprehensive report,
“A Texas-Sized Crisis,” (by the Death Penalty Information Center), a 20-
page compendium which is chock-fuil of useful information about the
death penalty.

So think about it. The executions in Texas continue, day after day.
It’s time to focus a national spotlight on Texas. Our campaign is seri-
ous and we mean business. But we’re not too dour to have a little fun
as well.

Help out with this special campaign!! Send us your gift today.

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reg

Judging the Executioners

Progressive Leaders
and the Death Penalty |

by Jordan Stetker

Hhere are televisions on
death row, and it seems
likely that many of them
were tuned to election cover-
age onthe nightin 1990 when.

Texas voters chose Ann Rich-
ardsas the state's 42nd governor. Richards had
campaigned as a staunch death penalty sup-
porter, but given her well-documented liberal
background, it was not unreasonable to hope
that her administration might exercise more
judiciousness—and greater moral responsibility
=in deciding just which peoplethe state would
and would notkill. Halfway through Richards’
first term, it hasn’t worked out that way. In-
deed, Richards has almost completely abdi-
cated her constitutional role in the review
process.

‘The campaign leading to her victory had
been hard fought, and in an era of unseemly
tactics, the carly stages of the Texas guberma-
torial race had marked a new low. During the
Democratic primary, former Texas Governor
Mark White and former Texas Atlomey Gen-
eral Jim Mawox uumpeted Uicir personal in-
volvement in the enforcement of the death
penalty, with White going so far as to appear
in a television ad that included larger-than-
life-sized photographs of inmates who had
been executed during his stewardship. Atone
point during the campaign, Richards was the
embarrassed recipient of an endorsement by
Endeavor, the Texas Death Row newsletter.
‘Although Richards did not embrace the en-
dorsement (‘I don'tknow what possibly could
have engendered it”) and repeatedly stated
her support for the death penalty (“My view
onthe death penalty is that it’s the law and the
law should be carried out"), progressive Tex-
ans had reason to believe that a Richards
administration would be different from those
of her predecessors. Before Richards took
office, Texas led the nation in executions G7
since 1976), and Texas could surely do no
worse with Rigmards than with White and
Mattox, on the one hand, who seemed to view
imposition of the death penalty as the highest
function of state government, and Republican
candidate Clayton Williams, on the other,
shose sole contribution to the criminal-jus-
tice dehate was a rehabilitadon plan under
which first-tume drug offenders would be sen-
tenced (0 hard labor “bustin’ rocks.”

Two years into Richards’ term, Texas re-
mains the death penalty capital of the United

es, carrying out about a third of the cx-
ecutions nationwide — 18 of 52 since Richards

EXcEelcent
ARTICLE:

ke:

took office. If the current pace of executions
continues, Richards will preside over more
executions than hasany other governor (Texan
orotherwisc) during the past 30 years. During
Richards’ term, the State has executed two
retarded inmates, an inmate with severe brain
damage, an inmate paralyzed by a stroke
week before his execution, a juvenile, two
inmates who did not themselves kill (but who
participated in felonies with others who killed),
and an arguably innocent inmate. Over half of
the inmates executed were black or Latino,
and the victims of all but two of the executed
inmates were white. Few death row inmates
received adequate representation at trial (there
is no coordinated criminal defender service),
and the state does not provide indigent in-
mates with post-conviction counsel.

As these executions have been carried out,
Richards has notbeen just a reluctant overseer
ofthe state criminal justice system. By relusing,
to provide any meaningful executive review
of individual cases, she has allowed exccu-
tions to go forward with little public scrutiny.
She has failed to establish regular procedures
that would even permit review in compelling,
cases. As it stands, the clemency process in

‘Texas consists of a series of ex partecommu-
nications between Richards’ office, defense
counsel, and the state attomey general's of-
fice, almost invariably culminating ina private
communication from Richards’ legal counsel
that the governor declines to be involved.

Richards’ uncompromising position that aif
condemned prisoners should be executed —
regardless of age, mental status, or failures in
the judicial process - must rest on a view that
any executive involvement in capital punish-
ment will inevitably appear obstructionist or
abolitionist. This political judgment, even if
accurate, cannot justify Richards’ continued
abdication of responsibility for Texas’ current
death penalty practices.

When to Intercede

Texas law does not grant broad clemency
powers to the governor, it permits the gover-
nor to stay an inmate's exccution for a single
30-day period, and to direct the Board of
Pardons and Paroles to consider whether
commutation to a life sentence would be ap-
propriate. Ifa majority of the Board so recom-
mends, the governor may commute a capital

continued on p. 14

Gov. ANY
RICHAROS +
(G3 TEXAS
oeATH fENAcry

—

Executions, jomy.11

lal
Le

i

fl

sentence to life imprisonment,
Virtually every inmate facing execution
approaches the governor seeking a stay
and review before the Board of Pardons
and Paroles, Counsel for the second inmate
executed during Richards* term, Ignacio
Cuevas, presented such a petition on the
ground that the jury which had sentenced
him to death was unaware of his mental
Fetardation, Atthe Ue of Cuevas’ sentenc-
ing, the now-repealed Texas sentencing
scheme did not permit a huey to consider

mental retardation as a basis for withhold-
ing the death penalty, Rather, a defendant's
mental retardation affered an affirmative
basis forthe extreme sanction, because the
Texas sentencing scheme focused the in.
quiry almost exclusively on a defendant's
“future dangerousness.” In another case,
the United States Supreme Court had held
the Texas sentencing scheme invalid as
applied to a mentally retarded defendant:
although the Constitution's prohibition
against “cruel and unusual" punishment
does not preclude executing the mentally
retarded, the Court ruled that a state must
sive the sentencer an opportunity to reject
the death penalty by considering the
defendant's limited mental capacity as a
mitigating circumstance, The courts re-
viewing Cuevas’ conviction in light of this
decision held that Cuevas could not benefit
from the nuling because of his attomey's:
failure to develop evidence of his mental
retardation at (rial,

Despite the fact that no actor within the

system had ever considered whether Cueve
as’ extremely. limited mental capacity re-
duced his responsibility for his crime, Rich-
ards refused to direct the Board of Pardons
and Paroles to consider whether Cuevas’
retardation warranted a sanction less severe
than death, Richards has been consistent in
this position: Billy White, another retarded
Inmate whose jury did not Cand could not)
consider his retardation at sentencing, was
likewise executed after Richards declined
to seek review; so was Justin May, whose
jury did notleam of his brain damage atrial
because of the Texas scheme,

The Texas scheme similarly restricted
capital sentencing juries from consider-
Ing 2 defendant's youth at sentencing,
and the Supreme Court is presently
considering whether such a restriction also
violates the Constitution, Just before the
Supreme Courtagreed toaddress this issue,
Jesus Romero, a teenager at the time of his
crime, argued that his sentence was invalid
because his jury was unable to reject the
death penalty on the basis of his youth,
Richards rejected Romero's plea, and he
Was executed just weeks before a similarly
situated defendant, Gary Graham, obtained
review (and a stay of execution) from the
Supreme Coun. Both the Supreme Court
and the govemors office were fully aware
that Graham's case might be heard, and
Justices Stevens, Blackmun, and Kennedy,
dissenting from the denial of Romero's re-
quest fora stay of execution, argued that it
‘was unjust to let Romero die before the
Coun ruled on his legal claim, :

Ina bizarre and unsettling case, another
Texas inmate, Leonel Herrera, sought relief
{in the state courts when his attorneys dis-
covered new evidence that cast doubt on

10 Questions for the

jihere ure372 people ondoath rowin Texas,
; Four are women, Nationwide, thore wore 1.
! 2676 people on death row at the end of 0
11992, Including 43 women... A
‘Texas death row prisoners are 48% white
36% black, 16% Hispano, and 0.3% other,
Natlonwide, those figures are 51% whit
99.6% black, 7% Hlupanle, and 1.4% o!
i Therehave been 197 executions natlonwid

{slice capital ptintshment was reatored|
oO

If the current Pace continues, Richards
will preside over more executions than
has any other Governor (Texan or
otherwise) during the past 30 years.

his guilt (Including evidence from a former
Texas judge that Herrera’s deceased brother
had confessed to the murder), The Texas
courts refused to consider Herrera's evi-
dence because of a state procedural rule
that bars bringing newly-discovered evi.
dence claims more than 30 days after tral,
‘The Federal Count of Appeals likewise dis-
inlssed Herrera’s clalm on the ground that
the federal courts are reserved for. -constitus
Vonal claims and that the execution of an
“innocent” defendant, absent prosecutorial
misconduct or errorat trial, does not const
tutea constitutional violation. The Supreme

Court agreed to hear Herrera's claim but
relused (o stay his execution (four votes are

Fequired to hear a case; five are needed to
stay an execution), Herrera sought a re-

Prieve from Richards, who declined to issue

a stay to permit thorough review of the

evidence by the Board of Pardons and Pa-

soles. Herrera would have been executed

Gand his case dismissed as *moot") but for

the last minute grant of a stay by the Texas

Court of Criminal Appeals,

‘The Supreme Court has recently rejected
Nerrera's claim. Ironically, the Court's cen-
\raljustification forrefusingtoaddress claims
Of innocence is that “{elxecutive clemency
has provided the ‘fail safe’ in our ciminal
system.” According to the Court, *Ihlistory
shows thatthe traditional remedy forclaims
of innocence based on new. ‘evidence... has

of those have been

Thlotental
Is always used, anda

| Legislative Ubravy,

been executive clemency." kecent: history, in
Texas anyway, suggesis otherwise,

Of the numerous requests for executive
Intervention, Richards has temporarily
stayed only one execution. Johnny Garret,
who at the age of 17 raped and murdered a
nun, was himself repeatedly raped and
abused asa child by various members of his
family. Garrett developed a mukiple per-
sonality disorder and experienced auditory
and visual hallucinations both before and
after his murder conviction, Although the
Constitution requires that 2 defendant be
‘Saneat the time of his execution, the Texas.
courts had made the required. findingonthe
ground that at least one of Garrett's person-
alities understood why he was being ex-
ecuted. Pope John tl, members ofthe victin's
religious order, and members of the victim's
‘own family called on Richards to commute
Garrett's sentence. Richards directed the
Board of Pardons and Paroles to consider
Garrett's case but the resulting proceeding
‘Was a sham. At the hearing, the district
attomey falsely informed the Board that
Garrett had commited an additional mur-
der while in prison G claim which Garreu's
counsel was not permitted to rebut), Dur-
ing the Board's subsequent deliberations,
the state assistant attomey general commu-
nicated privately with the Board. The Board
unanimously recommended against com-

Continued on p. 16

* physletah fa present to pronounce the prisoner
+ Goad, but doea not attend the execution.

Executions, from p.14

mutation (with one ab-
stention), and Garrett
was executed 30 days
after the initial stay.

What Richards
Could Do

Richards' central
failing in her approach
to the death penalty is
her unwillingness to
examine in a ctreful
and public way the
claims that come be-
fore her. It is simply
not enough to say that
the death penalty is
“the law, and the law
should be carried out”
when the executive
power of clemency is
also the law and must
be appropriately exer-

R
©

om
—_

om
ee

cised. Indeed, much of
the Supreme Court's recent jurisprudence
limiting federal court review of state con-
vietionsrestson the premise that state courts
and state executives will independently re-
view death sentences to ensure that they
are just. When the Court rejected categori-
cal bans on the execution of 16-year old
defendants and the mentally retarded, the
decisions were premised on the promise
that state criminal justice systems will care-
fully review individual cases on their merits
and winnow out the least culpable and
mostvulnerable defendants fromthose who
are selected for execution.

Tothisend, Richards should establish the
ctiteria that she regards as relevant to the
clemency process, She could, for example,
insist ona searching review of cases involv-
ing juveniles, the mentally retarded, or
abused defendants, She might screen cases
for potential racial bias, lack of adequate
counsel, prosecutorial misconduct, or other
breakdowns in the adversary process. To
fulfill her legal role, she need not review
sentences on the basis of all of these vari-
ables, but her willingness to stand by as a

parade of young, retarded, and minority
defendants are led to execution because
the courts have shut their doors, often for
procedural reasons, is inconsistent not only
swith her avowed political commitments,
but also with her legal obligations as the
state's chief executive, Fundamental no-
tions of due process require Richards to
conduct her own inquiry (with sufficient
procedural safeguards to ensure that the
decision rests on adequate information),
and to issue a public statement explaining
the grounds of her ruling. Currently, Texas
clemency procedures are the same under
Richardsasthey were under former Repub-
lican Governor Bill Clements. As in
Clements’ reign, Richards’ “blackbox” de-
cisions, communicated during a flurry of
last-hourphonecalls,areboth unreviewable
and unaccountable,

Political Consequences?

The political costs of exercising such a
role are uncertain. Undoubtedly, a deci-
sion by Richards to prevent the execution
of an inmate convicted of a notorious
crime will be understood as weakness
(perhaps even as civil disobedience) by
some segment of the population, regard-
less ofthe surrounding circumstances. But
Richardé need not blindly assume that
popular support for capital punishment as
an available mode of punishment entails
popular support for each particular ex-
ecution. Polls ini Texas reveal that support
forcapital punishment drops precipitously
if the sentencing alternative is life Impris~
‘onment without possibility of parole, Polls
likewise reveal public ambivalence re-~
garding thé execution of juveniles and the
mentally retarded, That Texas juries have
sent so many juveniles and mentally re~
tarded defendants to death row does not
reliably indicate public opinion, given that
Richards has inherited a regime that sys~
tematically deprived jurors of the oppor-
tunity to considerage and mental status as
mitigating evidence bearing on the choice
of punishment. Indeed, Richards can jus-
tify undertaking searching review of par-
ticular cases on the ground that some of
those currently on death row were sen-

When the Supreme Court rejected bans
on the execution of minors and the
mentally retarded, they were counting
on state criminal justice systems to
review individual cases and winnow out
the least culpable and most vulnerable.

tenced under procedures which have since
been declared unconstitution:

In fact, Richards is uniquely situated to
exercise her clemency powers responsibly.
In most states, most notably Califomia, the
rarity of executions transforms each one
intoa popular referendum on the appropsi-
ateness of the penalty. The political stakes
of scrutinizing (much less opposing) any
execution in such states are thus inevitably
high. The Increasing number of executions
in Texas, however, makes any particular
case less noteworthy, with reports of ex:
ecutions often relegated to one-paragraph,
back-page summaries in the state newspa-
pers. Historically, when executions, have
been commonplace in the United States,
commutations were also relatively com-
mon. As executions become ordinary oc-
currences in Texas, Richards’ policy of
abdication becomes much less defensible.

Ultimately, we cannot expect the death
penalty to disappear any time in the near
future. And partly for that reason ~ because
the national debate is not tebetherto have
the death penalty but under what circum:
stances it should be imposed ~ progressive
leaders may have more latitude today than
in the past 20 years to speak out against
particular executions,

‘Assuming, though, that Richards faces
real political costs by exercising any inde-
pendent judgment in reviewing capital
cases, should progressives insist that she
accept those costs? One perspective would
defend Richards’ record on the ground that
we should not allow all progressive politi-
cal leaders to be “Willie-Horton-ed” from
office. After all, politics requires compro-
mise, and “flexibility” on the issue of capital
punishment may enable progressive politi-

clans to secure important victories in other,
perhaps more pressing, areas, such as
health-care reform, insurance regulation,
reproductive freedom, and civil rights gen-
erally, Bill Clinton, on this model, gained
office in part by his enthusiastic support for
the death penalty, atone point rushing hack
to his home state during 2 primary to dem-
“onstrate his personal involvement in one of
the executions.

If we accept this model, we should at
least recognize that there are special costs
of having a “progressive” leader administer
decidedly unprogressive policies. IfClayton
Williams were governor, much more na-
tional attention would be paid to the gi
execution of Texas’ young, retarded, and
insane inmates, But the national image of
‘Texas has surely changed. In the wake of
Clinton's victory, progressives outside of
the state are likely to identify Texas politics
with Richards’ colorful and folksy barbs
directed at George Bush, Given Richards’
national persona, non-Texans may also as-
sume that a greater measure of procedural
scrupulousness pervades Texas’ capital
punishment practices. Just as Richards has
insulated capital sentencing decisions from
local review by refusing to formalize execu-
tive clemency proceedings, she has also
insulated such decisions from national re-
view by projecting a progressive, albeit
misleading, image of Texas outside of the
state. But in terms of capital punishment,
the “new” Texas is much like the “old.”
When Richards runs forre-clection, she will
be able to parade in front of a great many
more photographs of executed inmates
than her predecessors. "

Aversion of this piece swill appear in Recon
struction magazine,

AUSTIN (TEXAS) CHROWELE
!By Michael Graczyk,
dams nen

HUNTSVILLE, Texes — A half
|dozen people trudge up «brick
etalraay fost a few tloutes before
ndnight. A Jone man with several
lighted candles stages a quiet vigh
labout $00 yarde down the deserted
st

iS" alr 4s sill, Rosecolored
foGodtigbte tint fog that has
stislad to descend. The only sound
Jeémés Trom an occasional car driv.
Ing slong astreote block away.
= ‘Tiinstete of Texas ts to execute &
Convicted tlle.

‘The solitude of the moment test
nth ots he Walis Unt ofthe
‘Teyig Department of Criminal Jus.
WeeSrleds sun tran
rota the near chins and fren
the sie spl and onde hese

es where 10 years ego
Mendey,Cherlo Brooks became te
first man In Anieriea to be putt to
death by Infection for killing an-
other human belng

Mr, Brooke, 40, was executed for
‘lng » mechanic ata Fort Worth
used car tot.

‘When.we found out Charlie
“Drooks was dead, our hearts ell. We
were seared and disgusted,” fellow

‘Ist U.S. execution by injection occurred 10

Continued fom Page 4a
1Sye
‘Felson ott are consldering
‘ second death row at a new prison
| ner Livinsion o ete crowding
pressure at death row at the Bilis
Unit, about 15 miles east of Hunts:
vile,
Bi

‘more Important for both
state and inmetes allke, since the
Brooks case shoved thal Texas
‘could exec convicted killers, the
‘opltat punishment Taw has under-
gone a decade of scrutiny by the
Highest courts of the land, making
more likely the punishment actu:
ally willbe carried out,
“The vast majority of Issues have
been pretty well decided,”
apalac, one of seven assistant at
torneys generat who handle Texas
of them

seer berg rel ea. nk
to some extent, hings have gotten «
ile eater as time bas gone by be.
couse the courts have gotten cot
orinble dealing with the death pen:
aly Issue. 1 vas a re0l teaching ex
perlence to persuade the courts that
I's OK to execute these people be.
Jcause there were no constititional
vlolations. And once the courts got
more femillar with the Issue and

in ewaltt

Snmote Jeffery Grif sed "1 don't
want t6 dle, but {C1 do, then tha’s

I
+. Mr. Griffin, convicted of kiling
the manager of « Houston conver
lence store, wes the man execvted
ust month in relative obscurity

Tn the decade since the siete re-
‘sumed the death penolty on Dee. 7,
1982, Texas has been the most active
stale In carrying out executions.
(Mr. Brooks was No. Me. Griffin,
the 2th thls year alone, No, $3,

Four reporters covered Mr. Ort
fin's last moments, Spectators out.
slde the prison could be counted on
fone hand,

Mr. Brooks’ execution attrected
worldwide media attention end
Ihundreds of people who crowded
around the prison headquarters to

outcome.
"There were aot of medle ond a

ant director of the prison system
‘who has seen virtually every execu-
ton In the stat

“We didn't Know what to anticl
pate. We were overwhelmed by the
‘crowd of media and spectators. At
ter that, we started putting up the
police lines end security forces In
place,

fot more comfortable with sel
{things happen, obviously gota It
te bit ersten."

Denth row Inmates agree.

"Tere sess secur no boat
‘whether I night be executed,” sald
Jim Venderbitt, who's been
‘death row since 1978 for « killing in

ow, however, the novelty has
worn eff, The natlonal execution
count Hs approrching 200. Inmates

{n Texes don't mark the passing of @

te tht hey hadn led nbd

he eng." was on aol
hock'he wos executed, You ce.
tainly cent have that feeling now."

Many inmates say they never
‘wore aware ofthe death penalty un-
{Wl thelr own ease went 10 court
‘nd they are nearly unanimous 15,

tes" thelr sentiment that capital punish.

Ang todte.
"the feeling before (Brooks)

iment fg no deterrent to erlm

shown publle suppart for ft despite
the estimated $2. million It costs

‘ak eran! “The
t though polls repentedly "have

dlos be wrned off for the evening death row sill fer exceeds the nm joyeed and 11 hove been pul 10
‘or by holding prayer vigls. One of ar of punishments carried out. In Geath, although thelr prison Uh
ficer patrols the street In front of 1991, 29 inmates arrived, The same ranged from 4¥s years (0 to

the prison on executton nights.

year, five (nmates dled. This ye

‘The population growth on Texas’. more than 30 people have been sen:

Selrem mes i edt the
death chember gurne
"is there one etton out there
who can sleep safer at night oF
‘work in 8 7Bleven store a night or
‘ne person who now sleeps without
‘8 door locked at night because of
‘the death penalty?” asked Jim Beat-
hhard, an eight-year death row vet-
‘death penalty Is revenge
bot not esellstying one.”
One case that could break a
logjam of sorts on denth row tor

Volves Texas inmate Gory Graham,
‘whose eppee! is before the US, Su:
preme Court. Mr, Graham's att

Aoys ore arguing’ that a fury thet
sontenced him to deeth should have
‘been allowed to consider his age at
then of bis crime he was =

Nitaptec sad acing ta bie
question Is whether the problem

Phe

see IST US. on Page 65

years ago in Texas

‘ulldmately gets you rlie or ot”

"You're never golng to {Ind 0
perfect case trled, Ie not hard 10
ftnd oomething thet ot Lest wil get
younigeoun,

1 Mr, Zapetac sald fe thinks
the lowes evs no sprobebly
the best

“It tekes care of problems that
the Supreme Court Identified as
bolng constitutional fssues and pro-
vides for everything thé defendant
Isentitled to,"he sald,

(ver)
Sunday, December 6, 1992 @he Hullas Morning News 25 A

[Death row inmate says his defense attorneys want him executed

1 anectted ets
attorney. robbed the bank or that he was didn't mean to shoot anybody. action in the case, but he told Judge County Jail and prison officlals to
«HOUSTON -- Kenneth Dwayne During his fal arguments, Mr, Holding the pistol that fired the fm. Mr, Dunn said he docont want Sold he thinks inet age dteate thw be, Denn bate represen

i
t
i
|
|

{Dunn is convinced thet his ettor Dunn did not dispute that he tal shot. Mis sole point was that he Judge Nearn removed from further hus been conspiring with Harris himself on eppeut

| hiys want to see him dead,
' "The Texas death row inmate,
who faces execution Dec. 47, says
{his lawyers are conspiring to have
‘him put to death,
Mr. Duna, 33, told State District
‘gudge Curt Steib on Priday that
Texas Resource Center attorneys
IMondy Welch, Anthony Haughton
and Richard Burr have been bebav-
Ing very politely in court to mask
thelr real intentions of costing him
stay of execution,
“They're part of the conspiracy,”
Mr, Dunn said.
| "His attorneys dispute the allega-

tons,

“We think Mr, Duna fs seriously
mentelly 10," Ms, Welch told the
Houston Chronicle after Friday's
hearing.

Mr, Dunn was convicted of Kill
{ng teller Madeline Peters, 24, while

frobbing a bank tn Houston on
| March 17, 1980,
{Witnesses testified that Mr.
‘Dunn held cocked pistols {n each
‘hand as he went down a row of
tellers, collecting money in a bag.

Ms, Peters reportedly was on the
telephone at the time and was una-
ware of the robbery until Mr. Dunn
reached her window. When she
sald, "What?" to his demand for
money, she was shot in the head,
witnesses sald,

Mr. Dunn's 1980 conviction was
overttmed because the court re-
porter lost notes of the ease, At his
Fetrlal fn 1968, Mr, Dunn refused
the help of court-appointed attor-
neys and insisted on representing
himself.

‘The Texas Resource Center law.
yers had asked Judge Stelb to
Fecuse State District Judge Charles
Hearn from presiding over the'case
on grounds of bias against the de-
fendant, But Mi. Dunn had con-
tended repeatedly that Judge Hearn
isn't blased,

‘Judge Hearn, who postponed a
Nov. 17 execution date, now must
rule on a welt challenging whether
‘he made the right choice when he
allowed Mr. Dunn to act as his own

LETHAL INJECTIONS
IN TEXAS

lara are the 63 convialed Killers

Ho recelve lethal Injoction In

‘oxes, thelr os ‘execution date

savietlon. Jerry

ent the most

r 4 dy, or

chard Andrade,

No. 20° spant tho losst ima, 769
days, or 2.1 years

¥. Charile Brooks, 40, Doo.

82, Tarrant,
James David Autry, 29, March
4 1084, Jtforson.
Ronald Clark” o'8rven, 30
Hah 1884, Her

y Baeloot, 29,
Got130" 1864 Bok,
Boyle Skller, 49, Jan. 16,
1085, Lubbock.
‘8. Stephen Pater Morin, 34,
‘March, 12, 1885, “Jettrson:

7, deaso de ta Rosa, 24, May 16,
"1085, Bexa

8. Charles Alton, 94, Juno 26,
1965, Tarcant.

8. Honry Martinez Porter, 43, July
8, 1986, Tarrant

10. Charles Rumbaugh, 28, Sept.

Bee on tn
Be a
% ate, Nuecos wi
eer Bn.
EE sam

artis,
16, Randy L. Woolle, 96, Aug, 20,
1986, Tom Gracn,

17, Smily, 80, Aug. 22,

Ita Coster Wicker, 87, aug. 26,
1986, Galveston,
19. Michael Weyne Evans, 90,
Deo, 4, 1906, Dalas,
39 lchard Andrade, 20, Doo. 1,
1808, Hues
fhamon 3 Hemandor, 44, Jan

80, 107 Pan
22: laoo H. Moreno, 27, Macoh
4, 1067, Fort Bend.
28. Anthony ©. Was, 27, May
ize: 1987,
[24 it Redan, 26 dune 24,
1907, Jotlerson,
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- Capital
Punishment,
Texas Style

Texas has come a long way since that earl: ly
morning in February of 1924 when, within a
little more than 90 minutes, five convicts were

put to death in assembly-line fashion.
By Brian Wice

1 12:01 a.m. on Sept. 19, 1991, James “Sugarman™
Russeil was taken from a hoiding cell in the death
house of the state penitentiary in HuntsviMe and
strapped to a hospital gumey in the brightly-tit,
cobait-blue execution chamber. Russell, 42, had
been convicted of the execution-style slaying of a
witness who was to testify against him at his armed
robbery trial in March of 1974.. Russell had
marched Thomas Steams,24. into a deserted field _
sonth of Houston at gunpoint. scaually abused him.
and then shot him in the head twice at point-blank
ings” i ee eS

For the past 14 years, Russell had seen the popu-
lation on Texas Death Row grow from 13 to 348.
He had waited for his own time to come. Forty
inmates before him had been put to death on the
gumey. He had eaten his final meal. an apple. at
5:21 p.m. and said goodbye to his family and
friends moments earlier.

Althougit his case had taken more than eight

years to originally clear the federal courts, his sec- _

ond and firai request fora reprieve was denied in
less than eight hours. At 10:10 p.m., as Russell sat
in the holding cell, he received word from Warden
Jack Pursely that the United States Supreme Court
had refused his request for a stay of execution.

‘The witnesses filed into the death chamber at
12:10 a.m. Russell. clad in a blue shirt, black
slacks and black loafers, rambled through a final
‘statement that thanked his family. friends. and sup-
Porters. He mentioned he was going to take their
love with him “beyond all this madness.” With
that, the intravenous tubes were inserted in
Russell"s arms. The tubes led to a room shielded
by a one-way mirror. the 20th century's version of
the hooded executioner.

“We are ready.” said the warden.

As the lethal mixture of sodium thiopental,
Pancuronium bromide. and potassium chioride
coursed in his veins, Russell breathed deeply.

386 Texas Bar Journal April 1992

snored loudly and shut his eyes. For a few moments, the only
sounds in the death chamber were pens on paper as the media wit-
nesses chronicled the life that was being extinguished before them.
Russell was pronounced dead at 12:20 a.m. “The only pain he
likely felt.” a prison official said later, “was the prick from the in-
sertion of the needle.” .

Texas has come a long way since that early moming in February
of 1924 when, within a little more than 90 minutes, five convicts
were put to death in assembly-line fashion. “Old Sparky,” the
sturdy, oaken electric chair named by the inmates who had built it,
was kept warm in those days. The chair, ironically located behind
the prison chapel, would claim another 356 men in the next 40
years before Joseph Johnson became the fast inmate to be executed
in the electric chair.

While the method employed by the Lone Star state to put its
most vicious killers to death has changed over the fast six decades,
two things have not. Texas juries continue to sentence more defen-
dants to death and more of those sentences have been carried out
than in any other state in this country. Says one East Texas district
attomey. “I guess we just think that some folks are so bad, they
just deserve killing.”

While most states with capital sentencing statutes on the books
limit imposition of the death penalty to first-degree murder, Texas
had no such limitation. Under the old Texas Penal Code, a defen-
dant charged with either rape or armed robbery risked being placed
on death row. From 1924 to 1962, Texas executed 97 inmates con-
victed of rape and five who had been found guilty of armed rob-
bery. Then in 1972, a series of cases (from a number of states in-
cluding Texas) led the U.S. Supreme Court to rule that capital pun-
ishment, as it was then being administered, violated the Eighth
Amendment's prohibition against “cruel and unusual punishment.”
In the wake of the supreme court’s decision, the 45 men on death
row in Texas, and another seven with death sentences in county

«, Jails across the state, had their sentences commuted to life in

>" prison. By March 1973, death row was empty. It wouldn't stay that

way for long. .

In an effort to revamp its decidedly antiquated penal code, the
Texas Legislature drafted a statute that it hoped would pass consti-
tutional muster in the supreme court. Section 19.03 of the revised
penal code defined a new offense, capital murder, and provided
death as a possible punishment for anyone convicted of: murdering
a police officer or fireman acting in the lawful discharge of their
duties: murder committed during the course of committing or at-
tempting to commit kidnapping, burglary, robbery, aggravated
Tape. or arson; murder for hire; murder committed while attempt-
ing to escape from a penal institution; or, murdering an employee
of a penal institution while incarcerated within thatinstitution.

A decade later, the legislature would amend this provision to
include serial killers or anyone who committed muitiple murders
during the same criminal transaction.

A defendant convicted of capital murder would then face a sepa-
Tate hearing before a jury that would hear additional evidence from
both sides on any matter deemed relevant to sentencing. At the
conclusion of this penalty hearing, the jury would then be asked a
trio of questions:

Did the defendant act deliberately in causing the victim's death?

Was there a probability that the defendant would commit crimi-
nal acts of violence that would constitute a continuing threat to
society?

And. if raised by the evidence, did the defendant act unreason-
ably in killing the victim in response to the latter's provocation?

If the jury answered yes to ail these questions, the judge had no
choice but to sentence the defendant to death. If the jury answered
no to any question, or was unable to answer ail of them, the defen-
dant received a life sentence. These new provisions took effect Jan.

1.1974. Just weeks later, John DeVries became the first man sen-
tenced to die under the new statute. The first to arrive at death row
in February 1974, DeVries was also the first to cheat the execu-
tioner when he committed suicide five months later.

Fifteen months later the Texas Court of Criminal Appeals up-
held the constitutionality of the Texas death penalty statute when it
affirmed the capital murder conviction of Jerry Lanc Jurek. Jurek
was sentenced to death for the kidnapping and murder of a 10-
year-old girl. The court found that nothing in the. Texas capital
Sentencing statute was at odds with what the supreme court had
held some three years before. Yet given the novelty of the issue, it
came as no shock when the U.S. Supreme Court decided to review
Jurek and four other cases involving a varicty of capital sentencing
statutes. .

On July 2, 1976, the supreme court uphield the Texas, Georgia,
and Florida statutes while striking down the statutes in Louisiana
and North Carolina. In upholding the Texas statute, the court noted
that it “guide{d] and focus{ed] the jury's objective consideration of
the particularized circumstances of the individual offense and the
individual offender before it can impose a sentence of death.”

Although he lost in the supreme court, Jurek’s death sentence _
“was everitually set aside when the fifth cireuit court of appeals
tossed out his confession five years later on the grounds that it had
been involuntarily obtained. Because the victim's family did not
want to undergo the rigors of a retrial, Jurck was permitted to plead
guilty in exchange for a life sentence. Texas became the second
state in the United States to change the mode of execution from
electrocution to lethal injection in 1974. Death row inmate Ken-
neth Granviel quickly sought to have his death sentence set aside
on the grounds that the new mode constituted cruel and unusual
punishment. The Texas Court of Criminal Appeais rejected
Granviel’s claim in February 1978 after concluding that death via
lethal injection was not only a more humane but decidedly less

James “Sugarman” Russell

spectacular mode of execution than electrocution. But Granviel,
who has been on death row for 17 years, longer than all but two
other inmates, has yet to keep his date with the executioner.

Texas” 18-year hiatus on executions finally ended shortly after
midnight Dec. 7, 1982. when Charlie Brooks, 40, became the first
convict in the United States to die by lethal injection. Brooks and
his cousin, Woody Loudres, had been convicted for the December
1976 robbery-murder of a Fort Worth used-car dealer. Although
the evidence was unclear as to whether Loudres or Brooks fired the
fatal shot, both were sentenced to death. After Loudres’ conviction
was reversed in 1980, he was permitted to plead guilty in exchange
for a life sentence. Although Loudres eventually admitted that he
had fired the fatal shot, his admission was too little and too late to
save Brooks.

388 Texas Bar Journal April 1992

Charlie Brooks spent 4.62 years on death row before his execu-
tion, well below the 7.04 years that the average inmate will spend
there. The “Dean of Death Row” in Texas is Excell White, 53, who
has been there since Aug. 26, 1974, for the robbery-murder of
three peopie in McKinney, just north of Dallas. Prior to his execu-
tion in June of 1991, the longest stay on death row had been the
16.73 years spent by Jerry Joe Bird. The quickest trip to the execu-
tioner was made by Rickard Andrade who spent just more than two
years before being put to death in December of 1986.

‘Texas has tried to fashion some remedies to curb the sometimes
interminable delay that has stymied the state’s efforts at carrying
out the jury’s mandate in capital cases. Court reporters are under
strict timetables to transcribe trial records as are lawyers when it
comes time to filing briefs. Although there are some exceptions,
the Texas Court of Criminal Appcals has attempted to give death
penalty cases the highest priority in its decision-making process.
‘Still, it takes the court an average of more than two years to fash-
ion an opinion in the death penalty appeal.

‘The bulk of the delay in the appellate process occurs not in the
state system, but in the federal system where death row inmates are
entitled to take their claims. Already overburdened federal district
judges in Texas have. in the words of a former federal judge,
treated capital cases with “benign neglect.” In the Texas judicial
system, political pressure is often placed on appellate judges to
take action on a capital case. No such pressure can be brought to
bear on their fedcrai counterparts. Therefore, the federal district
courts become a black hole where capital cases linger for years and
years.

‘Three times in the past decade, the U.S. Supreme Court has
handed down decisions involving the Texas capital sentencing stat-
ute. As a result, scores of jury verdicts in capital cases have been
reversed. In 1980, Adams v. Texas held that Texas’ method for

~

—

excluding prospective jurors in capital cases was unconstitutionally =<

broad. The following year in Estelle v. Smitit, the high court held
that a defendant had to be apprised of his Miranda rights by a psy-
chiatrist who would testify as to the defendant’s future dangerous-
ness. These two decisions resulted in a startling number of new
trials or commutations for some of the most vicious individuals on
death row, In 1989, the supreme court handed down Penry v.
Lynaugh. It noted that Texas’ capital sentencing scheme was un-
constitutional because it failed to take into account evidence of a
defendant's diminished moral culpability. Because evidence as to
mental retardation and childhood abuse fell outside the three spe-
cial issues, the jury could not “give effect” to such mitigating evi-
dence. Already, a number of inmates have received new trials as a

_ Tesult of the Penry decision with a dozen or more expected to fol-

Tow suit. =

Seventeen is the minimum age a defendant may be sentenced to
death in Texas and nine inmates on death row committed capital
crimes at that age. Two inmates, Charles Francis Rumbaugh and
Jay Kelly Pinkerton, were executed in 1985 and 1986 respectively.
Each committed capital murders at the age of 17, and another three
17-year-old capital murderers have had their death sentences com-
muted to life.

There are four women on death row. Another two were tempo-
rary residents in the late "70s before their death sentences were
commuted to life. While a woman has never been put to death
since the state took control of executions from the counties in
1924, legal experts predict that will change in the next several
years as the condemned women begin to exhaust their post-convic-
tion appeais in the federal courts.

It her original conviction and death sentence for strangling a
man during the course of a robbery had not been set aside in June
of 1983, Pamela Lynn Perillo, 39, would more than likely have
been the first woman executed in Texas. Perillo was retried and the

po,

Texds Court of Criminal Appeals upheid her death sentence in
September 1988. With over a decade on death row, Perillo had
been there longer than any woman in Texas.

The most likely candidate to be the first woman executed in the
Lone Star State is Karla Faye Tucker. In 1984
Tucker was convicted of the grisly pick-axe murder
of a Houston man. On a tape played for jurors during
her trial, Tucker admitted she achieved sexual climax
every time she “picked” the victim. Tucker’s case is
now in federal district court in Houston. A decision
is expected within the next year.

The other two women on death row are Frances
Newton, 26, convicted of the slayings of her husband
and two children for their life insurance proceeds,
and Betty Lou Beets, 54, sentenced to death for kill-
ing her fifth husband as part of a scheme to collect
more than $100,000 in life insurance and pension
benefits. Beets’ conviction and death sentence were
recently set aside by a federal district judge on the
grounds that her trial lawyer’s over-eagemess to seil
the book and movie rights based upon her case was
an impermissible conflict of interest. The state of
Texas has appealed the federal judge’s decision to

pelling evidence that the Texas capital sentencing scheme — like
those in the other 34 states with death penalty laws on the books —
‘has the potential to produce a miscarriage of justice that is irrevo-
cable in nature. But what happened in those cases calls to mind

the fifth circuit court of appeals,

Prior to the supreme court’s decision in Furman, there had been
a trio of women on death row: Emma Oliver, Maggie Morgan, and
Carolyn Lima, The sentences of Oliver and Morgan were com-
muted, and they both died in prison. Lima came within hours of
being executed in 1963 before her death sentence was set aside by
a federal appeals court. After being convicted of a lesser offense at
her retrial and receiving a five-year sentence, Lima walked out of
prison on April 3, 1965.

There is, however, a dark side to predilection of Texas juries to.

assess the death penalty. Innocent men have been exonerated of
crimes within days of being executed. While distinguished Judge
Leamed Hand once said that the specter of an innocent man being
executed was an unreal dream, try telling that to Randall Dale
Adams and Clarence Brandley.

Adams was sentenced to death by a Dallas County jury for the
November 1986 slaying of police officer Robert Wood. After com-
ing within 72 hours of being executed, Adams’ death sentence was
reversed by the U.S. Supreme Court in 1980. But Adams spent
another nine years in prison before filmmaker Errol Morris’ classic
documentary The Thin Blue Line graphically showed Adams had
been framed by the state’s star wimess, David Harris. The court of
criminal appeais finally set aside Adams’ conviction in March
1989 after finding prosecutor Doug Mulder not only failed to tum
over exculpatory matters to Adams’ counsel, but had knowingly
utilized perjured testimony to obtain Adams’ conviction and death
sentence. “When deceit produces court rulings that have the effect
of denying the accused a fair trial,” wrote the court, “the convic-
tion cannot be permitted to stand.”

Clarence Brandley, a black man, was sentenced to die by an all-
white jury for the 1980 rape-murder of a white teenager in Conroe,
30 miles north of Houston. Brandley’s conviction was upheld in
1985 and like Adams, he came within days of being executed.
Brandley’s lawyers were finally able to prove, during an extensive
post-conviction hearing, that law enforcement conducted an inves-
tigation that had a “blind focus” to convict Brandley while ignor-

. ing other credible evidence. In December 1989, the court of crimi-
nal appeals agreed that the state’s investigative techniques compro-
mised Brandley’s right to a fair trial by creating false testimony
and inherently unreliable testimony. Brandley was released from
death row several months later and the state declined to re-iry him.
It would be easy to view the Adams and Brandiey cases as com-

Cassius’ pronouncement: “The fault, Dear Brutus, is not in the
stars, but in ourselves.” Indeed, the fault may not be in Texas’
capital sentencing scheme, but in those few involved in its admin-
istration who lost sight of their oaths.

Brian Wice is an attorney and freelance writer living in
Houston. This article is reprinted here with his permission.

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April 1992 Texas Bar Journal 389

ee

A Bridge or
A Ferryboat?

The question is pretty easy to answer. Why waste resources
recruiting volunteers on a case-by-case basis, a ferryboat

+ approach, when we know we need a bridge? Appointment of
lawyers should be required at the third stage, 11.07 state

habeas corpus.

By Vincent W. Perini

hy was I surprised at State Bar President-Elect Jim Parson’s re-
mark?

I was a member of the State Bar board of directors. We were
writing goals for the forthcoming year and we had come to that
perennial favorite — condemned prisoners without lawyers.

‘We were about to repeat the obligatory exhortation about re-
cruiting volunteers. Why not? Afier all, during his 1988-89 tenure
as State Bar president, Jim Sales had distinguished himself by re-
cruiting lawyers both inside Texas and out for the burgeoning in-
habitants of death row. With the largest death row population in
the country, Texas had become fashionably notorious. Lawyers
from as far away as Wall Street were volunteering to explore these
darkest wilds of Texas jurisprudence.

“I don’t want to spend my year recruiting lawyers,” Jim Parsons
said. “I want a solution.”

‘The problem was less than a decade old, and I had been ready to
give it permanent status. To his credit, Jim was not.

‘That was the beginning of what should lead to a bridge of the
gap. Inspired by Parson’s leadership, the State Bar committee on
death row, then chaired by Clifton L. “Scrappy” Holmes of
—_ Longview, obtained a grant from the Texas Bar Foundation. We

convinced chair Jim Branton and the trustees to finance a study.
‘The first questionnaires were sent to judges and lawyers in 1990.
The completed study, by the highly regarded Spangenberg Group,
is expected by the end of this bar year.

My life would be more hectic but for the efforts of the Texas
Young Lawyers Association, whose own committee actively re-
cruits lawyers.

What is the “gap”? What is the problem?

Death penaity litigation is in four stages: trial, appeal, state writ,
and federal writ of habeas corpus. There are problems up and down
the line, but what Jim Parsons was talking about, and what we seek
to solve, is the gap at stage three: the state writ.

The U.S. Constitution guarantees counsel at trial and on appeal,
but there is no right to counsel in post-conviction litigation. Be-
cause it cannot imprison (or execute) an indigent defendant with-
out first providing him a free lawyer at trial and on direct appeal,
Texas law (Art. 26.04, Code of Criminal Procedure) obliges, and
the counties reluctantly do their part by paying the fees ordered by
the district judges. For most of the state it remains a rudimentary

system of court appointment by the trial judge and remuneration at
rates that fail even to cover counsels’ office overhead for the time

invested in representation,

11.07 Writ of Habeas Corpus

Post-conviction habeas corpus in Texas is governed by Article
11.07 of the Code of Criminal Procedure. It is similar to habeas cor-
us provisions in other states. It Provides for the collateral attack of a
conviction where Texas or federal constitutional infirmities are per-
ceived, not the least of which may have been insuffic’
of counsel at the two Preceding stages (one of the
Texas’ death Penalty procedure is the absence of
dards concerning trial counsel, whose only quali

trial judge's favor is a current law license).

This process is controversial even when applied to non-capital
felonies. Some think that one review is enough. That argument
sounds good, but statistics Suggest there is more fo the story. In
‘Texas and across the land, a shockingly high percentage of death
penalty convictions are overturned after direct appeal. The national
figure is 40 percent (which includes both the state and federal writ

stages).

Despite the obvious efficacy of 11.07 post-conviction tigation
(which, incidentally, is a prerequisite to the federal habeas
Process), Texas district Judges rarely appoint lawyers at the 11,07

‘Stage since it is not required.

Finding lawyers to do this work out of the goodness of their hearts
is not easy, even on Wall Street. Today in Texas there are about 25
condemned inmates who have Cases to litigate but no lawyers to [iti-
gate them. Recruiting lawyers is a constant and continuing struggle.
The representation is as nerve-wracking as it is sophisticated. No

matter how smug we may be from afar, be-
coming the champion of a Person actually in
Tine for lethal injection is serious business. it
is as numbing as it is exhilarating.

Federal Habeas Corpus.

If the condemned inmate’s claims are re-
jected in state habeas corpus, his own spirits
may be on the descent. For his lawyer, how-
ever, passage to another forum is like bump-
ing up to pavement from a gravel road. The
federal courts appoint lawyers for this last
Stage of the post-conviction Process, usually
the same lawyer who has handled the state
writ. Thanks in large measure to the American
Bar Association’s stalwart lobbying, Congress
has generously provided for counsels’ remu-
neration. Fees from $75 to $125 per hour are
routinely approved.

Although reaching the federai Process pro-
vides a breath of economic fresh air for the

Ferryboat or Bridge?

The question is Preity easy to answer. Why waste resources re-

ent assistance
problems in

any minimum stan-
fication besides the

Should lawyers undertak
lot of non-lawyers think so.
wage war at Sunset and figh

¢ this burden for the common good? A
We have leamed we must periodically
ht skirmishes over taxes on lawyers, the

threat of sales taxes, or mandatory pro bono.
Have building contractors offered to construct much needed

‘Texas prisons for free? Do
Do stalwart ‘grocery chains
fueled at no cost by public-
Not hardly, And asking 1
demned inmate? Without st

and who decides? For that n

That might do a lot to elimi

: habeas corpus tigation in

ibeas corpus

utility companies offer electric current

‘0 prisons and jails free of charge because itis for the public pool?

stand as one in their resolve to feed

‘Texas prisoners in the interest of Public safety? Are prison vehicles

spirited oil companies?
he legal profession to do this difficult

and important work as if it were an avocation is absurd,
Should ial judges continue to name the lawyer for the con=

tandards? If standards, what standards,
matter, what about criteria for selection

of trial and appellate counsel as well as 11.07 third stage lawyers?

inate the problems that make the post-

conviction writ process today so fruitful.
Both Califomia and Florida, other major death penaity states,
fund elaborate public defender offices which do nothing but state

ieath penalty cases. Not surprisingly,

their budgets are in the millions of dollars,

Can Texas Afford the Death Penalty?

A recent poll by the Dallas Morning News shows Texans over-

whelmingly support capital

Many would disagree, argui

Punishment. But can post-boom Texas

afford it? Consider three ideas.
First, a death penalty is not an essential part of modem life.

ing we should have it. My point is that

it is not indispensable. Jails and Prisons are indispensable: modem

The Bar Journal. ‘spoke with several attorneys who have volunteered time

on capital cases. Their Perspectives a)
Post-conviction representation.

pear throughout this special section on

Michael Tigar, Professor at the U.T. School of Law, chairman of the board

of the Texas Resource Center, and for

mer chair of the ABA's litigation section,

routinely volunteers time in capital cases. He Says that lawyers are always
needed to help with Post-conviction representation.

cases to be involved with. You have to get over your initial fears, but any good

lawyer can meet the challenge. It is th

e lawyer's creed that no one should be

subject to any punishment of our society unless the Process is fair.”

society must have the wherewithal to isolate dangerous Persons.

The death penalty is a criminal Justice option. .
Second, the death penaity is. extremely expensive. The forthcom-

ing debate over funding 11

07 habeas corpus in Texas will stimu-

cruiting volunteers on a case-by-case basis, a ferryboat ‘approach, ment to lethal injection, This will address the popular misconcep-

when we know we need abridge? Appointment of lawyers should be
quired at the third Stage, 11.07 state habeas corpus.

Now the fun begins. Who Pays for the bridge: counties (as they
now do for ail indigent defense at all levels) or the state? Or the law-

yers?

tion that death is cheaper.

Ttisn’t. (A Dallas Morning News analy-

sis, March 8, 1992, estimates the average cost of putting someone:

prison.)

to death in Texas at $2.3 million, three time the cost of 40 years in

Third, the Dallas Morning News survey also shows that support

April 1992 Texas Bar Journal 391

: Playing
| For Keeps

No matter how hard and cynical the lawyer, it

is gut-wrenching when a tough, multiple-
murder convict who is about to die thanks you

for being nice to his mother.
By Tom Moran and Stanley G. Schneider

n asking lawyers to represent death row inmates, recruiters
often pitch that it is just another lawsuit.

Nothing could be further from the truth.

Our firm represents more than a half dozen death row
‘inmates. In the past three years, two of our clients have
been executed. Some of our clients are likely to get new
trials, and others have tough cases where it is hard to guess
the outcome.

Post-conviction death penalty litigation is the highest
stakes litigation in the world. In the Texaco-Pennzoil law-
suit, the only thing at stake was filthy lucre. Admittedly, it
was a lot of money, but it was just money. In the normal
criminal case, all that is at stake is liberty.

In death penalty litigation, the state wants to kill your
client. It is a different ballgame, and the emotional stress
on everyone invoived is higher than in any other type of
litigation.

Courtrooms take on a special aura during every proceed-
ing, no matter how ordinary, whenever a person’s life is at
stake. When a court sets an execution date, the normal bus-
tling courtroom becomes deafeningly silent. Apparently
hardened, heartless judges become emotional and moist-
eyed during these extraordinary proceedings.

District Judge Sam Robertson of the 14th Court of Ap-
peals, a tough ex-proséciitor, left the bench with a tear in
his eye after setting an execution date for a young man. He
later made special efforts to help commute that death sen-
tence to life.

Judge Mike McSpadden recalls that it was a very solemn
: occasion when he set the final execution date for Ronald
Clark O”Bryan, the Pasadena optician convicted of killing
his son with poisoned Halloween candy to collect the
child’s life insurance. He let O’Bryan use the telephone in
his chambers to make funeral arringements after the date
was set.

‘The effect that the proceeding had on the judiciary has
now caused the mules to change, allowing judges the imper-
sonal ability to set a date for a person’s death without look-
ing that person in the eye. The judge simply sends a certi-
fied letter to the inmate telling the convicted person when
he is going to die.

For an attorney handling a death penalty writ of habeus
corpus, the case starts slow and builds as the execution
date nears.

April 1992 Texas Bar Journal 397

Lawyers representing people on death row must understand and
accept the political reality that the death penalty is popular, and
that Texas judges are elected and want to be re-elected. Hopes for
a stay of execution often lay in the federal courts,

possibly need to put on the best defense possible. He figures that a
death sentence is a foregone conclusion, and he does not want any-
thing to mess it up. g

Many of the legal issues that once were the hallmarks of post-

With the assistance of the resource center, even a sole practitioner is able
to effectively handle capital cases. Alex Bunin of Houston is an example. He
represented Michael Goodman, a mentally retarded man convicted in 1981 of
murder and sentenced to death. Goodman received a stay six hours before
his scheduled execution in 1987 pending the outcome of Penry v. Lynaugh.

The U.S. Supreme Court reversed Penry's conviction in 1988 because
Texas’ capital sentencing statute Prevented jurors from giving weight to miti-
gating evidence of Penry's mental retardation, which was beyond the scope of
the “special questions” considered in a capital sentencing hearing. The Texas
Court of Criminal Appeals reversed Goodman's conviction in 1991 based on
the Penry ruling.

“Considering this is the ultimate sentence you can impose upon someone,
they should at least have adequate representation. The experience has
strengthened my belief that such representation must be forthright and vigor-
ous. | received great mental and moral benefit.”

conviction are gone. Jury selection, once the
bread and butter of reversals in death penalty
cases, often caused a case to be reversed
quickly because a veniremember was im-
Properly excused for opposition to the death
penalty. Today, it is almost impossible to get
a new trial based on jury selection because of
supreme court rulings from the 1980s.

Ineffective assistance of counsel, again
one of the mainstays of death penalty litiga-
tion, is an almost impossibly hard sell to an
appellate court. It is not enougli.to show that
the trial lawyer was incompetent. You also
have to show that the outcome might have
been different had he been competent. Since
many prosecutors are now picking and
choosing their death penaity cases carefully,
it often would not have made any difference
if Perry Mason had represented the person at
trial.

‘The worst part of death penalty litigation
may be the last part — execution night. It is
the end of a flurry of activity, with FAX ma-

chines spewing papers to various courts.

For years, it was traditional for federal judges to grant death row

inmates stays of execution while deciding their first federal writs
. of habeas corpus. Now, the stays are no longer almost automatic.

Last year, we helped another attomey prepare an application for
writ of habeas corpus. As soon as relief was denied by the court of
criminal appeals, the trial court set an execution date, At that point,
the race to stop the execution was on.

The federal writ ended up in Judge David Hittner’s court. Judge
Hittner and his staff took only a couple of days to prepare a well-
reasoned, well-written opinion denying the defendant a stay of
execution and relief. In three days, the case went through the filth
circuit and the U.S. Supreme Court with ail relief denied. The de-
fendant was executed on schedule.

‘That case is an example of how the federal courts are gearing up
to expedite even first writs of habeas corpus with pending death
dates. The fast pace keeps the Pressure on and emotionally drains
everyone involved in the case. +

Waiting for a judge to decide whether to grant a stay of execu-
tion is perhaps the most nerve-wracking part of death penalty iti-
gation. In one recent case, we sweated out a Friday aftemoon wait-
ing for a telephone cail from a federal judge's clerk to tell us
whether our client wouid die Sunday night. Not much work got
done that afternoon. When the ‘Stay was granted, it was like the
weight of the world had been lifted off our office.

Even when a stay is granted, it is tough and getting tougher to
win a death penalty case. A decade or More ago, Texas prosecutors
Pushed every advantage they could get, and all too many judges
helped the state at trial to ensure a death sentence. It was not un-
common for the prosecutor or the judge to step over the line and
commit reversible error. Those days appear to be gone.

Now, at least in Harris County, most of the judges and almost all
of the prosecutors have figured out that they can kill a defendant
with kindness. In one capital murder case we are handling at trial,
the prosecutor has not only opened his entire file to us, he is doing
everything he can to guarantee that we have everything we could

398 Texas Bar Journal Apri 1992

Different lawyers handle execution night
differently.

We know of one lawyer, Karen Zeilars, who sat with her client
the evening before his execution and literally heid his hand a few
hours before he was executed. We do not attend executions. We
stay in our offices until it is over because we do not feel it is a time
to be at home with our families.

‘The toughest single moment is usuaily the telephone call to the
client a few hours before the execution to tell him that the supreme
court has finally turned down a stay of execution. There are no
further avenues for a stay and he is about to die.

No matter how hard and cynical the lawyer, it is gut-wrenching
when a tough, muitiple-murder convict who is about to die thanks
you for being nice to his mother.

Tom Moran, a graduate of South Texas College of Law and The
University of Texas at Austin, is associated with the firm of
Schneider & McKinney in.iHouston. He  formerix.was the legai
writer for the Houston Chronicle. mas

Stanley G. Schneider, a graduate of St. Mary's University Law
School, is a partner in Schneider & McKinney in Houston. He was
an attorney for the Staff Counsel for Inmates at the Texas Depart-
ment of Corrections before entering private ‘practice.

|
i

Surviving
The System

The victim of a crime in a capital punishment case is +

dead. Another group of victims — those left behind
— is often overlooked: the family and friends of the
. murdered loved one, the family and friends of the

accused.

By Mclinda Smith

‘ustice, swift and sure. If only that could be. If only we could guar-
antec that the accused is guilty, that no rights are violated, that jus-
tice is served.
Our judicial system is undeniably one of the best in the world.
- Unless, of course, you happen to be caught up in it. Your opinion
may change when encountering interminable delays, an
unfathomable process, and even, some charge, downright abuse.

Our system is not perfect and ensuring the rights of our citizens
often becomes a slow, laborious process. A capital punishment ae
case, by necessity, becomes even more ponderous.

Parties.on both sides — prosecution and defense — often come
away battered and bruised after years of litigation. The victim of a
crime in a capital punishment case is dead. Another group of vic-
tims — those left behind — is often overlooked: the family and
friends of the murdered loved one, the family and friends of the
accused. These individuals frequently end up feeling brutalized
again — this time, by the system.

“My first thought after hearing about the man who committed
the Luby’s murders [in Killeen] was, “Thank God he killed him-
self. Now the families of the dead won't have to go through what
my family has in the courts,” said Robert Stearns. Stearns’ son
Tom, 24, was shot and killed in,1974 by James “Sugarman”
Russell. Russell was executed 17 years after committing the crime.
He spent 14 years on death row.

“The system ignores the pain it inflicts on the survivors,”
Stearns said. “The way the appeals process is handled is a disaster.
Our case sat on a federal judge’s desk for 10 years. We were
scared to death that if Russell went up for another trial the evi-
dence would be so cold we would not be able to get another con-
viction.”

A retired chemical engineer for DuPont, Steams said what he
felt during the process was not so much anger as sheer frustration.

“The case took three and a half years to go to trial — the D.A.
was afraid to try it. 1 never got a chance to talk to him about it al- «
though I repeatedly tried,” he recalled.

Steams said his entire family lived in Houston when the crime
‘was committed. Within 15 months none of them lived in the state. —_

“The day Russell’s wife called my wife to find-out where we
Tived...well, that was what did it for us. I only knew Russeil’s per-
sonality through what the police told us but it was enough to make
us worried, I was particularly anxious for Tom’s wife.”

400 Texas Bar Journal April 1992
By 1981 the Stearn family was again living in Texas. They had
been gone six years.

“AL least, many things that happened in the criminal justice sys-
tem then don’t happen now,” Steams said. “When we moved back
in 1981, there was nothing in the statutes that gave instructions to
the prosecutors to make sure they minimized the damage done to
survivors. The victim was totally ignored — if [a member of the
victim’s family] was needed to testify, that person was called like
any other witness. I'm a pretty pushy guy...it’s not easy to intimi-
date me. I got treated fairly well because I am pushy and not emo-
tional. Of course, I was angry and emotional, just

juvenile life in a detention center. For now, | guess we'll just have
to keep those prison beds open.”

A Mtorney and former Texas Legislator Frances “Sissy”

Farenthold is also an advocate of reform. She, like
‘Stearns, speaks from experience: her stepson was mur-
dered in 1972 and another son disappeared nearly three years ago.
“The legal process is in very serious need of being looked at,”
she said. “I have always been opposed to the death penalty but 1
thought the process was being properly followed. Lately, some

not with them.”

Stearns became a charter member of People
Against Violent Crime (PA VC) and served-as state
chair from 1983 to 1988. PAVC sct about develop-
ing guidelines that would provide requirements for
law enforcement to minimize the trauma inflicted
on victims and their families, The legislature
adopted a statute in 1989, after much lobbying from
PAVC and other victim rights groups, that recog-
nizes victims’ rights. The statute requires that a per-
son be assigned to expiain the process to victims
and keep them apprised of what is happening with
their cases.

When Stearns talks to survivors going through
trial he tells them, “You better pray that the defense
attomey does a thorough and proper jab. Otherwise
you are going to be in for trouble. And after all,
even the worst of us deserves a fair trial.”

Before Tom’s death, Steams never objected to

I know the pain that I brought to my victims’ family. I
know their loss, their anger, their frustration, hatred, and
despair. I know their feelings of helplessness and hopeless-
ness. I know these emotions as they, the families of my
friends who have been executed, and my family and friends
do — a twisted cycle of continuing violence, loss, pain,

gricf, and helplessness.

—From Letters from Hell

the death penalty — he said he never reaily had rea-
son to consider it. After enduring some long hard years, he has
come to the conclusion that the system needs reforms.

“Not until Tom was killed did I really understand the reason for
the death penalty. It is the only alternative we have in Texas to
giving them life in prison and releasing them in 15 years on pa-
tole.”

‘Though not against the death penalty, Steams believes that it is
used too often and too arbitrarily. A criminal, he said, can commit
many violent acts without actuaily committing capital murder and
the system necds alternatives besides the death penaity that provide
a broader range of protection. He favors the sentence of life with-
out parole, particularly for violent repeat offenders.

Steams is relieved that a bill was recently passed in the Texas
House requiring those who are found guilty in capital punishment
cases — but not sentenced to death — to serve 35 years instead of
15 before becoming eligible for parole. °

When the long saga ended and Russell was executed, Stearns
said he did not really feet a strong sense that justice had been done
or the satisfaction of revenge.

“I just felt a deep relief that he would not get out of prison and
kill Tom's wife. | worried deeply about how the execution would
affect me as far as feeling guilty or that I was to blame for his
death. After ail, I had bugged them to do it for 17 years. But I
didn’t feel that either,” he said. “My family and 1 have improved
considerably in the last six months. The lack of strain and waiting,
the fear...the whole family is doing much better.”

According to Stearns, the victims’ tights movement is here to
stay. He hopes that society will find a way to work for changes in
the judicial system that will improve the future,

“What everyone is working on now are simply Band-aids to heal
society’s wounds...we are not attacking the base problem: drugs
and the erosion of the family unit. Maybe if we guide juveniles in
the right direction — and notice waming signs even before they
start school — it will help. Russell spent ail but 10 months of his

capital cases were brought to my attention that really distressed me
about the lack of proper procedure. Often it is not a question of
evidence but a question of due process.”

‘Though she has reviewed some capital punishment cases and
traveled to Huntsville to meet a death row prisoner, Farenthold
stressed that she is merely an outsider looking in. She is concerned,
however, that the cagemess to push executions through seems to
be permeating all political offices just as — in her opinion — it has
permeated D.A.’s offices for years.

“There is now a lremendous political burden,” she said. “People
who want to get clected cannot speak out in opposition to capitat
punishment,

“T cannot advocate the death penaity simply because [of what
happened to my family|. I have been there before and may be there
againi? she edntintied siésvly:“ Violence begets wisicnce: What
happened to my stepson..it was a terrible murde#T can't even talk
about it, But it has not altered my feelings about the death penalty.
fam afraid I just don’t believe in vengeance.”

T= fear of vengeance has kept Marjorie Powell awake nights
for more than a decade. Her son, David, was convicted of
killing an Austin policeman 17 years ago and has been on
death row for 14,

“Families of death row inmates are often ostracized, villified,
fired from their jobs, sometimes even thrown out of their
churches,” said Jude Filler, executive director for Texas Alliance
for Human Needs and an Amnesty Intemational volunteer. “Their
feelings of anxiety, guilt, and anger are extremely debilitating — it
decimates families.”

“Fourtcen years of sheer torture” is how Powell describes her
experience. When David was arrested, she said, she raced around
desperately trying to help thinking, “This can’t be happening.”
Now she is simply waiting for the axe to fail.

“Thad a happy, ideal childhood, marriage, and children,” Powell

Ard 1999 Tors Mar Jorn 9+

recalled. “We had problems, of course, but nothing we could not
solve. We were all law-abiding citizens and were brought up to do
right. I marched along like a good little soldier and believed every-

Louis Salinas, a partner in the trial section of Butler & Binion, was involved in one of
the first cases overturned on the merits of the Penry decision. The experience, he said,
fortified his firm's concern that the death penalty, if there is to be one, be administered
fairly. Salinas and 11 other attorneys in the firm handled the appeal of Hermon Clark,
who received the death sentence in 1982 for felony murder. The U.S. District Court,
Southern District of Texas, granted relief on the merits of a Penry claim.

“1 am opposed to the death penalty. | became interested in assisting when the ABA
began recruiting volunteers. Many of the attorneys involved are not necessarily against
the death penalty. We were all concerned that important issues such as those found in
the Penry decision deserve the best legal arguments available on both sides in order
for justice to be properly administered. We prevailed on some sound legal reasons. The

. issues being litigated are extremely important to the criminal justice system, and it was

sum she assumed would be required to hire defense counsel. When
adefense attomey informed her that it would cost $100,000 she
was appalled. According to Powell, the attomey appointed to de-

fend David had no real experience
other than defending DWIs. Not
only was counsel inexperienced,
Powell contends, but she was not
given enough money to prepare
an adequate defense.

“What can an attorney do with-
out money? Everything costs
money, even making copies. So
the court-appointed lawyer does
nothing. The prosecutors have
enough money to do what they
can to get a conviction.”

According to Powell, the
prosecution's attack was
unneccessarily vile. Much of what
they said was exaggerated and
even at times untrue, she charged.

Parker recounted that David

gratifying that they were briefed in a fashion that the defendant, as well as the state,

deserved.”

was an ideal child with a bright
future when he graduated valedic-
torian from a four-year high
school in just three years. He

thing I was told, Now I have been exposed to what the law is really

like. If you don’t have any moncy. forget it.”
Powell is the owner of a lawn and garden business in Dallas.

When she was informed of her son's arrest, she recalled frantically

trying to determine where she could raise $5,000, the approximate

You a just can't
beat ‘em.

REPORT
CHILD ABUSE.

DIAL
1-800-252-5400
ANYTIME

(VOICE OR TDD)

Texas Department of Humart Services

402 Texas Bar Journal April 1992

moved to Austin to attend U-T.
and there the trouble started: within six weeks he was hooked on
drugs. At the time of his arrest he was shooting amphetamines ev-
ery two hours and convinced that the CIA was beaming rays into
his house. His mother said she had no idea he was using drugs
though she suspected something was wrong.

“It is the classic story of the country bumpkin going to the big
city and falling in with the wrong crowd,” said Dr. James Marquart,
a criminal justice professor at Sam Houston State University.
Marquart testified as an independent expert witness at David’s trial
that he would not pose a threat to society in the future.

David was recently retried because the prosecution had a psy-
chiatrist interview him without a Miranda warning shortly after his
arrest; it was used against him in the punishment phase.

Powell inherited some money from her father before the second
trial began and this time hired counsel.

“ paid that lawyer $177,000 and in the middle of the triai the
lawyer informs us that he is not putting up any defense. We were
completely flabbergasted. We are not in the law...but we hired an
attorney to defend our son. David had all these witnesses lined up
—none were subpoened. If the courts are really-after the truth then
they should let everything come in.”

Powell feels badly about the death of the policeman.

“J tried to talk to his widow at the first trial — she just shoved
me out of the way. We were not given a chance,” she said. “At both
trials we were treated like enemies of the police...but we are really
both on the same side. We are not enemies.”

Powell has become completely disillusioned with the process in
which she used to believe. She said that it has destroyed her entire
family and any chance for peace. She often awakens two or three
times a night sure that someone is in the house, trying to kill her or
her family.

“Jt would have been better to have shot David and me on the
courthouse steps,” she said. “That would have saved us both a lot of
agony. To kill someone in a fit of anger is bad — terrible — but to
cold-bloodedly plan it for years...

“When it is over for David it is over for me, too” she faltered. “It
would be different if he was bad...if I had tried to straighten him out
and couldn't. I can never accept this.”

~

. A Personal
Perspective

Slowly, gradually, I stopped viewing habeas
corpus appeals by death row inmates as an abuse
of process and began to see it as an important

and necessary constitutional Safeguard.
By Rick Strange

y first exposure to the death penalty came as a
high school senior when the sheriff of a neighbor-
ing county was murdered. The district altomey
was our debate coach. Over the next few months
he discussed the case with us and allowed us to
observe him. What I saw made me wonder how
equitable the system was. The county, already
facing financial difficulty, was forced to borrow to
pay for both the prosecution and defense of the
suit, The D.A. eventually paid part of the prosccu-
tion expenses himself.

The trial resolved few of my concerns. The jury
found the defendant guilty and he received a death
sentence. This sentence, however, was overturned
‘on appeal because of something I believed was a
mere technicality. Neither the county nor the D.A.
could afford a second tial so the defendant was
allowed to plead guilty in exchange fora life sen
tence.

I viewed the death penalty as an inequitable
system abused by obviously guilty defendants. To
me their appeals seemed both endless and frivo-
lous. Reform, | believed, meant stopping the end-
less appeais, and speeding the administration of
justice. é .

My second exposure to the death penalty came
during a TYLA board meeting. Mitzi Turner of El
Paso discussed the Texas Resource Center and a
Program designed to encourage Texas altomeys to
handle post-conviction death row representation. |
heard for the first time the other side of the story:
that capital punishment was oftentimes for defen-
dants who had no capital; that defendants were.
olten represented by attomeys seriously lacking in
skill or resources; and that a large percentage of
death sentences are overtumed during habeas cor-
pus proceedings.

My curiosity aroused, I read her material and
talked to current and former district attorneys in
my area. I was surprised to leam that a fair per-
centage of them: privately do not favor our current
system because of the financial and emotional
Costs it imposes. For example a three day murder
trial became a six week ial if the death penalty

was sought. I was also surprised to lear that these D.A.s supported
the Texas Kesource Center and its volunteer attomey program.

Slowly, gradually, I stopped viewing habeas corpus appeals by
death row inmates as an abuse of process and began to see it as an
important and necessary constitutional safeguard. | aiso decided that
I would become involved. Two other attomeys in my finn, Rick
Fletcher and Kristi Hyatt agreed to participate. Our section head
gave us permission to take a case. We called Mitzi and signed up.

Our first introduction to our new client, Bobby Moore, came
when Mitzi and two attomeys from the Texas Resource Center
brought his file. They discussed how to file a post-conviction ha-
beas corpus appeal, and reviewed the facts of Moore’s case. We
learned that he was a young African American man who, along with
two friends had held up a grocery store. Moore had a shotgun and
during the robbery it went off, killing a store employee. We learned
that Moore had been arrested and signed a confession admitting to
Killing the employce but claiming the gun had accidently fired.

We aiso discovered what made Moore’s case so special in the
eyes of the Texas Resource Center. Moore was Tepresented at trial

__ by two attomeys. One has since been disbarred. His attomeys told

him that if he testified at trial that the shooting had been uninten-

. tional he would receive the death penalty. The attomeys devised an

alibi defense claiming Moore had been in Louisiana the day of the
shooting. They convinced Moore and his sister to testify this way,
because it was the only way to save his life. The defense didn’t
work.

At first Moore's case was similar to a law school moot court
competition. We had a written packet of information which we were
to review and draft an application. 1 knew the stakes were much
higher, but the reality of the task at hand didn't set in at first.

Reality came in the form of a trip to death row. The Ellis Unit is
a strange paradox. It is at once both high tech and primitive, maxi-
muni security and relaxed operations. The prison itself looked like I
expected: a very old brick structure surrounded by electric fences,
barbed wire and guard towers. To see a Prisoner an attomey simply
calls ahead and notifies the prison staff. At the gate you yell your
fname and the prisoner you wish to sce to the guard in the tower
(there’s no intercom or phone), He lowers a bucket on a rope and
asks you to produce your bar card. After confirming your identity
the outer gate is unlocked. I expected that at some point we would
be searched, but that never happened. In fact nobody even looked in
our briefcases.

The visiting room is a large area composed of a room within a
room separated by a glass wall with an opening covered by heavy
wire mesh for talking to each other. Visitors are allowed to freely
move around-in the Gutezsoom and prisoners in the inner room. In
the outer room there are vending machines and-crafts made by the
Prisoners for sale. You can give cokes, papers, etc. to the prisoners
by using the push through box. This is a simple wooden drawer on
one wall. Open it, drop in your materials, and push it through.

During the visit Bobby Moore became more than a moot court
problem. He became our client. There was now a face to ge with the
file. His case was no longer simply another statistic, but the case of
aman in desperate need of legal assistance.

I find myself looking differently at not only his case, but at all
capital punishment cases. When an execution is Stayed or carried
out | see Bobby Moore’s face and I wonder whether we'll be able to
make a difference for him, or if some day I'll hear the news an-
nouncer relay the story of his execution in the same simple detached

tones used to describe tomorrow’s weather forecast.

Rick Strange, a member of the Texas Young Lawyers Association
board of directors, is an attorney with the Midland law firm Cotton,
Bledsoe, Tighe & Dawson.

April 1992 Texas Bar Journal 403

Prosecuting
Capital Cases

The death penalty remains society's highest
penalty for heinous crimes, and deserves the
highest consideration by those who play a role

in its execution.
By Greg Gilleland and John Garner Gilleland

he imposition of the death penalty as a sentence for a
violation of societal mores in Texas undoubtedly dates
back to man’s earliest presence within the territory.
‘The utilization of the death penalty as a military and
governmental sentence continued throughout the scttle-
ment of the new world, Early Texas Rangers protected
settlements under the Spanish, Mexican, and Texas
Republic governments, and then later from numerous
outlaws whose philosophical descendants still victim-
ize the citizenry of Texas.

Attomey prosecutors (as distingnished from military
prosecutors) have applied the death penalty with con-
siderable zeal against dangerous criminals since the
days of the Republic of Texas. Since 1836, the crimes.
classified as capital. the method of the imposition of
the sentence, and the post-conviction appellate pro-
ceedings have been subject to extensive modification
and limiting. Today, the death penalty is available for
use in only the most heinous of crimes after exhaustive
appellate review.

Understandably. many prosecutors have strong feel-
ings about the past. present, and future use of capital
punishment in Texas. For this article. we spoke with
several prosecutors with capital trial experience. to ob-

~~ fait their views on‘a Vaiicty of issues relating to the
death penaity.

Fred Feicman, first assistant district attomey of Fort
Bend County, has prosecuted and defended capital
cases. Feleman was a member of the prosecution team
that convicted James “Sugarman” Russell for the brutal
abduction, sexual assault, and murder of Thomas
Steams. Steams had been previously robbed at gun-
point by Russcil in Houston, and the day before
Russell was to accept a seven-year plea bargain for this
crime he brutaily assaulted and murdered Stearns. Ear-
lier this year, Russell was put to death, after more than
14 years of appeals.

Felcman believes the death penalty is a viable pun-
ishment option today: “There are some people who are
so mean, and whose criminal acts are so vicious, that
we as a society can never risk the possibility that this
defendant, through parole or escape. might ever re-
enter society and kill again.”

404 Texas Bar Journal Apel 1992

Gordon White. a former Harris County and Wichita, KS a:
tant district attorney, currently an assistant district attomey in Fort
Bend County, is a prosecutor with capital trial experience who has
a supportive yet (empered view of capital case prosecution.

“I don't know if | possess the traditional prosecutorial perspec-
tive on the death penalty,” says White. “I believe some people
should die for the things they have done. Obviously, some have
done things so bad that they have forfeited their right to live. How-
ever, I think the death penalty is unfairly applied. While some
people deserve to dic, unless we kill everybody that deserves to
die, then who gets to choose which unfortunate few forfeit their
lives?”

Jack Stern, the D.A. of Fort Bend County, agrees that the death

future crimit

Although Felcman feels that a sentencing option in Texas such
asa life sentence without any possibility of parole might be an
alternative in some cases to the imposition of the death penalty, he
concern about the possibility of future prison violence
committed by such an inmate incarcerated for a life sentence with-
out parole.

“What has a defendant got to lose when placed in prison for life
and he knows he is never, ever getting out?” asked Felcman. ~

White added. “There is that occasional inmate who, even if put
in the penitentiary for life without any possibility of parole, would
place the other inmates at risk.”

While employed as an assistant district attomey in Kansas,
White tried a case where the defendant received a sentence which
would not allow the defendant to be eligible for parole for 137
years. White utilized a Kansas statute that allows other convictions
to be stacked upon a conviction, and was quite satisfied with this
sentence. “the great grandchildren of the current parole board will
probably not have been bom when this defendant is eligible for
parole.~

Thus, although White favors a sentencing option such as life
without parole in Texas, he said, careful evaluation of the
individual's propensity for future violence should weigh heavily in
determining whether to pursue the death penalty in any particular
case.

All prosecutors interviewed for this article felt that the most dif-
ficuit aspect of a capital trial is the jury selection portion. Felcman
feels that a capital murder jury should be impanelied using pe-
remptory strikes and further feels that a capital case should be so
airtight, so strong, that the jury will not have to question whether
or not the defendant committed the act after hearing the evidence.
With regard to the pre-filing screening of potential capital cases,

"Feicman said “there shouidn’t be any issue as to whether the de-
fendant deserves the death penalty for the crime. If this issue
arises, the case should be tried as a murder case to save the state
time and money.”

White agrees. and states that most prosecutors recognize a capi-
tal case when it is brought to them. Certain factors, such as prior
criminal history of the defendant, whether the act was deliberate,
whether the act was in response to any provocation by the victim,
the continuing threat that this defendant poses to society, and any
other mitigating evidence are factors considered by prosecutors
when filing a capital case’

Stern, Feicman, and White agree that the current post-conviction
capital appeals process affords the defendant “super duc process.”
D.A. Stern favors reform regarding habeus corpus relief so that all
errors would have to be raised at one time, thus limiting the
appellant's right to file multiple writs over the course of his ap-

peals process. Felcman favors a five-year time limit to hear and

decide capital case appeals.

If lawyers have time tables they must follow, why shouldn't

judges have time tables that they must follow?” asked White. “It
takes just as much time to research the law and to put it in articulate
fashion as it does to read that and render a decision. The judge’s job
is no more difficult than the lawyer's in preparing the briefs. Why
should judges be given 100 times more time than the lawyer?”

Many critics of the death penalty cite economic reasons, contend-
ing that the trial and appellate proceedings in capital cases are far
more expensive than the cost of incarcerating a defendant for life.

“Money can be saved in other areas of goverment,” reasoned
Feicman. “The simple fact is, I’m willing to spend my taxpayers”
money for capital case defendants to be convicted and receive the
death penalty. There are many other areas of government and in the
process of the trial and appeals of capital cases where costs could be
reduced to counter these economic concerns.” Feicman opined,
“The same people who cite economic reasons to oppose the death
penalty are against it — period. Those critics use economic reasons
to justify their moral beliefs.”

“Certain functions of the state, such as prosecuting and housing
criminals,” says White, “are the responsibility of the state.”

Felcman instituted the “round table” decision making process in
Fort Bend County upon being appointed first assistant in January
1991. The round table process involves presenting the case to all 18
prosecutors. The prosecutors then debate the relative factors in-
volved in major cases such as capital cases, and discuss their con-
cems. In this way, the philosophy that “two heads are better than
one” is utilized to the maximum extent possible.

Fort Bend County prosecutors also consider the opinions of the
victim’s family and the law enforcement officers involved in the
investigation. The D.A.’s office attempts to use all its legal and in-
tellectual resources to their fullest extent.

Most prosecutors in Texas do not revel after the pronouncement
of a guilty verdict in a capital case. Most prosecutors attack capital
case litigation with the solemn and serious attitude it demands. The
death penalty remains sucicty’s highest penalty for heinous crimes,
and deserves the highest consideration by those who piay a role in
its execution.

Greg Gilleland is the chief prosecutor of the Felony Intake and
Grand Jury Division of the Fort Bend County District Attorney's
Office. He received his law degree from Thurgood Marshall
School of Law at Texas Southern University in 1989, and for-
merly served as a police officer in Houston. He is a member of
the State Bar of Texas President’ s Task Force on Thurgood
Marshail School of Law.

John G. Gilleland is a 1963 graduate of the South Texas Col-
lege of Law. He served as an assistant district attorney in Harris
Cuunty until 1968 when he opened his private practice in Hous-
ton, concentrating in criminal and civil trial and appellate litiga-
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April 1992 Texas Bar Journal 405

w

I
I
|

Lawyers Speak from Experience

Many Texas lawyers have volunteered to represent indigent prisoners on death row through the
appeals process. In addition to comments included in the special section, the following lawyers
discussed their experiences and perspectives on the process with Bar Journal writer John Sirman.

James McCarthy of Hughes and Lee in Dallas, said his firm
saw this as a good way to get members invotved in interesting, and
meaningful pro bono work. Both attomcys and paralegals with the
firm contributed on the appeal of Richard Foster, who was con-
victed of a robbery/murder in 1985. The case is currently in state
habeas proceedings.

€€T thought we should supplement our firm's more conventional
Pro bono work with this more specialized pro bono contribution.
Darrell Jordan, who was then State Bar president, and Jack Wil-
liams, now a law professor in Georgia, agreed with my appraisal
and we embarked on this effort. It gives firm lawyers a chance to
work on interesting issues of consequence. That {kind of] experi-
ence always makes good lawyers into better lawyers.”

Attn Wright, an appellate practice partner with Haynes and
Boone in Dallas, feels that the current appeals system increases the
range and scope of appellate and habeas corpus proceedings in
capital cases because there is no way of ensuring that defendants
are represented competently from the beginning. Wright repre-
sented Wille Mack Modden, beginning with a petition for writ of
certiorari to the U.S. Supreme Court in 1987. Habeas corpus relief
was granted in February of this year hy the cnurt of criminal ap-
peals on the basis of Penry v. Lynaugh.

© Ts the state of Texas is truly serious about limiting the so-called
“interminabie” duration of capital appeals and habeas corpus pro-
ceedings, it seems to me that we could start by assuring that all
death row inmates, whether indigent or not, are represented by
experienced and competent counsel at the trial Ievel. 1 leamed a
great deal about our criminal justice system and its operation in
capital cases from my representation of Mr. Modden. In addition,
the case has generated a great deal of interest both among lawyers
in the firm and among clients of the firm. This has been an ex-
tremely positive, aithough time consuming, experience.

It appears to me that the absence in many counties in Texas of
any “public defender” system providing for competent trial repre-

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406 Texas Bar Journal Apc 1992

sentation causes severe problems on appeal and in habeas corpus
proceedings. The current practice of the State of Texas to provide
appointed counsel to indigent capital defendants only during trial
and for the first appeal to the Texas Court of Criminal Appeals is
wholly inadequate from any reasonable due process perspective.
Ata minimum, it seems to me that any just system should provide
that appointed counscl represent capital defendants through at Ieast
the preparation and filing of a petition for writ of certiorari to the
U.S. Supreme Court,”

Davia Dow, an assistant professor at:the University of Hous-
ton Law School whose main academic interest is death penalty
law, is concerned that many state-appointed lawyers at the trial and
direct appeal stage are inexperienced and incompetent. Those that
are competent are often under financial constraints which make the
assembly of an adequate defense difficult. He believes the system
should be improved so that capital defendants have high quality
representation from the beginning. He has been involved at various
levels in several capital cases.

a | consider the work very rewarding because these people we're
representing have tended to receive rather shoddy representation,
and it’s a shame that people scheduled to die should be in that po-
sition.

Dow noted in a 1990 article in The Texas Observer that “Law-
yers who enter the cases at the fater stages in petition for writ of
habeas corpus are often extremely talented attorneys and they are
almost always volunteers who represent the inmates on a pro bono
basis. They spend a great deal of their time doing what the trial
lawyers should have done earlier. Ironically (and unfairly), the
habeas lawyers are the ones who incur the wrath of the courts for
their alleged countenance of delay. . . .

If states that have the death penalty want to speed up the pace of
executions, then they need to fix their own systems from the
ground up. This means that the first thing they need to do is figure
out a way to provide indigent capital defendants with qualified
jawyers, and that means, among other things, payingthe lawyers
enough to do a credible job. For irrespective of one’s position on
the death penalty, the one thing everybody ought to agree upon is
that no one should be executed just because he was too poor to
afford a decent lawyer and an adequate defense.”

Pp, rater Monning, head of the trial section of Gardere & Wynne
in Dallas finds these cases interesting and challenging, though he
believes that the long, drawn-out process is extremely wasteful of
time and money. The firm is currently handling two appeals: David
McKay, reversal of homicide conviction secured, scheduled for
trial in August 1992; and, Kenneth Gentry, 1983 homicide convic-
tion, now pending state habeas appeal.

“Tes kind of like getting to go to law school and study criminal
law again. Capital defendants and their trial counsel lack the re-
sources and experience necessary for a fair trial. There is great
personal satisfaction in handling these cases.”

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408 Texas Bar Journal Apri 1992

(Dunn, Cominued from page 332)

But sume agreement emerges among those I have consulted:

+ The process is too long and too encumbered with way stations and
“way-ting.”

+ Funding — adequate funding — from the already overtaxed
public must be part of the solution — if the death penaity is to continue
as a controversial deterrent to heinous crimes. Perhaps the best
solution would be to create an indigent defense fund administered by
the Texas Court of Criminal Appeals.

+ Involvement of our profession is overdue. Years ago when Jim
Sales was president of the State Bar, he called for more volunteers to
Tepresent these on death row. I renew that call.

+ The need for a public defender system — at least for those death
penalty cases where the defendant is indigent and has exhausted state
remedies pre-habeas corpus.

‘The human brainis the most incredible of all nature’s wonders. lam
told it weighs three pounds, uses 20 percent of all available body
oxygen, and contains 200 billion neurons with 10 to 50 times that
many support ceils and trillions of connections between these cells. A
typical neuron, a pyramidal cell, has up to 100,000 specific connec-
tions to other celis. Remarkable!!!

Our human brain has conquered diseases, prolonged life, improved
most aspects of the human condition, and solved a great many
problems on this earth — while admittedly creating others. The brain
is the most significant, tangible miracle we possess.

Somehow, it must provide a solution for this dilemma, as well.

‘The public has a right to a more expeditious criminal justice
process. Of course, the rights of an accused must be protected, as well.
However, maintaining death row is not cheap — and cruei and
unusual punishment is not limited to physical torture.

1, Td like to express my thanks to those who helped educate me about the
issues aid problems involved in death row representation: Chief Judge
Mike McCormick of the Texas Court of Criminal Appeals; Eden
Harrington, executive director of the Texas Resource Centers V. Perini of
Dailes; and Sam Davis uf Houston.

Is Innocence Irrelevant?

As the Bar Journal was going to press, a seemingly clear-cut
issue regarding the imposition of the death penaity received
national attention. The U.S. Supreme Court will consider the
extraordinary question later this year.

Attorneys for Raui Herrera, Jr., who was scheduled to be
executed Feb. 19, presented new evidence that they believe
shows their client, who was convicted of killing two police
officers, is innocent. A federal judge granted astay in order for
the new evidence to be considered, but it was liffed by the U.S.
Fifth Circuit Court of Appeals on the grounds that claims of
“actual innocence” are constitutionally irrelevant. The court
did not consider the new evidence.

In Herrera’s last-minute appeal to the supreme court, the
Justices split 5-4, with five justices refusing to stay the execu-
tion. The fact that four justices dissented, however, allowed
Herrera’s lawyersto requesta petition for certoriari, which was
granted. The Austin American Statesman reported recently that
“[the dissenting justices] noted that (Herrera’s] case raised an
important legal issue: Does the Constitution require 11th-hour
evidence of “actual evidence” be fully considered before an
execution proceeds?” Even after the petition was granted, five
justices again refused to stay the execution.

State officials were prepared to go ahead with the execution.
Texas Court of Criminal Appeals judges granted a stay after
hearing of the supreme court’s action. Herrera’s case will be
heard by the supreme court this fail.


RRR RINE HE rr

|| William}. Winslade,php,jD.

"DOCTOR DWATH."

and Judith Wilson Ross

CHARLES SCRIBNER’S SONS
New York

Copyright © 1983 William J. Winslade and Judith Wilson Ross

Library of Congress Cataloging in Publication Data

Winslade, William ].

The insanity plea.

1. Insanity—Jurisprudence—United States.
2. Critninal liability—United States. 3. Trials

(Murder)—United States, I. Ross, Judith Wilson.
Il. Title.

KF9242.W56 1983 —345.73'04 8242650
ISBN 0~-684-17897-4 347.3054

This book published simultaneously in the United States of
America and in Canada—Copyright under the Berne Convention.

All rights reserved. No part of this book may be reproduced in any
form without the permission of Charles Scribner's Sons.

135791113151719 F/C 2018161412 108642

Printed in the United States of America.
RARY

LAW CENTER LB,
“UNIVERSITY QF ALABAMA

158 ROBERT TORSNEY

tic and Statistical Manual a statement about the difference
between psychiatric and legal concepts of mental illness. If
juries are to be permitted to hear psychiatrists, they should
also be instructed about those differences.

If racial motives lay behind Robert Torsney’s insanity
acquittal, the jury was at least able to hide behind a belief that
the acquittal would result in “hospital punishment.” Had they °
voted an insanity acquittal in the face of testimony by the
state department of mental hygiene psychiatrists that Tors-
ney needed no treatment, was not dangerous, and would be
immediately released, they still might have voted for the in-
sanity acquittal. But then, there would be no question of their:
motives. ‘The insanity defense provides a shield for jurors to
hide behind in such instances. FA

The inconsistent and conflicting concepts of the insanity ,
defense also provide easy excuses and exits for defendants like.
Robert Torsney. He went home after two and a half years of! |
legal involvement. His plan was to go to court in order to, i
appeal his dismisal from the police force, to recover his back.
pay, and to be granted a $15,000-a-year medical disability
pension. He had learned how to use the legal system and, like
anyone with a surprise jackpot, he was right back for another
try to beat the odds—and to defeat justice.

JAMES GRIGSON

The “Hanging Psychiatrist”

VER THE PAST ONE HUNDRED YEARS, PSYCHIATRISTS, PSY-

choanalysts, psychologists, and others in the mental ,

health field have been thrust further and further into every
aspect of our public and even our private lives. If they are not
the principle decision makers, they are likely to stand next to
the presiding officer, making official recommendations. Be-
cause life is hard, society has designated mental health practi-
tioners as the experts on all of life’s problems.

You want a divorce? The court or your attomey will
refer you to “counselors” who can decide whether yours is a
truly hopeless case and where you went wrong. Does someone
think you’ve been acting a little unusual lately? A psychi-
atrist, in a brief exam, will decide whether you are likely to be
dangerous to yourself or someone else or perhaps whether
you just need treatment. Do you want to be a policeman?
Liberals urge you to have a psychiatric exam. Do you want to
tun for president? Senate? Congress? Many in the therapeutic
community urge that all candidates for public office have psy-

159

USBRARY

LAW CENTER

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160 JAMES GRIGSON

chiatric exams and that the results be made public prior to
elections.

It would seem to be an impressive safeguard to have
these mind specialists (33,000 psychiatrists in the United
States, with Los Angeles and New York City having more
than their share) checking out our character, personality, and
rationality, and making sure that things stay on an even keel.
But it doesn’t work.

Both within the field of psychiatry and within the medi-
cal profession, there is continuing argument and disappoint-
ment about psychiatry’s failure to be sufficiently scientific.
Occasionally, a well-known, highly respected psychiatrist will
acknowledge that the practice of psychiatry not only is but
should be more an art than a science. But that is not a
popular point of view among members of the profession. The
development of new drugs and the hope and belief that

mental disorders will be controlled eventually by physio- |

logical-chemical intervention have given new hope for the
scientific status of psychiatry. But initial discoveries have not
led to accurate and predictable treatment models, and drug
treatment, in most cases, is trial and error, often with regard
both to a specific drug and specific dosage.

But if psychiatrists have had difficulty gaining the respect
they feel they deserve from the medical community, as well as
from society, they have been eminently successful in gaining
access and decision-making power in many social institutions
and legal forums. In many public settings, the psychiatrist is
viewed as the expert on sanity and responsibility. Psychiatrists,
however (and allied mental health professionals), while
not reluctant to offer themselves as official societal problem
solvers, have begun to backtrack in at least one area.

Lawyers and psychiatrists, more often than not, have
been at war with one another, but they have made some
temporary alliances in order to try to keep psychiatrists from
presenting their opinions in some criminal trials. The Ameri-
can Psychiatric Association has decided it should withdraw

i

The “Hanging Psychiatrist” 161
some of its aid to the courts. It has done so while admitting
and insisting on its inability to know enough about the human
mind to offer proper or justifiable expertise. It is a new sound
of humility. Some have suggested that this retreat acknowl-
edges a new realization by psychiatrists that they had over-
stepped the boundaries of their knowledge; others suggest that
it is a singleissue retreat bound up with the fact that most
psychiatrists oppose capital punishment; still others—more
cynical psychiatrists—argue that it is an economic action of
self-interest in which psychiatry is prepared to give up its role
in one small area in order not to be held legally liable and
financially responsible for the same role in a much larger area.

The focus of these concerns is a Texas psychiatrist
named James Grigson and the case of Estelle v. Smith. One
night in September 1973 Emest Benjamin Smith, Jr., and
Howie Ray Robinson held up a convenience store in Dallas.
Both Smith: and Robinson were carrying guns. During the
holdup the cashier made a sudden move. Smith saw the move
and fired his gun, yelling at the same time, “Look out, Howie”
(or something like that). Robinson then fired his gun straight
at the cashier. The cashier fell to the floor and the two robbers
cleaned out the cash drawer and fled.

A short time later the Dallas police caught up with the
two men and charged them both with felony-murder. Such a
charge is one designed to discourage any criminal activity that
might result in death. In essence, if anyone takes part in a
felony, during which or because of which someone dies, that
person is guilty of homicide. Thus, if three people attempt a
bank robbery with a cap pistol, and a bank patron has a
heart attack and dies while the robbery is going on, the rob-
bers are all liable for homicide. Similarly, if someone drives a
murderer to his victim, the driver is as guilty of the homicide
as the one who did the killing—even if the driver never left
the car or saw the victim. The logic of the charge is that if it
had not been for the lesser crime, the death would never have
occurred and, therefore (1) all the participants are as guilty of
162 JAMES GRIGSON

the person’s death as if they had specifically and personally
caused it to happen, and (2) they are equally responsible re-
gardless of who (or what) actively caused the death because
they acted as a group or as a unit in committing the lesser
crime. -
Smith and Robinson were tried separately on felony-
murder charges. Because a death sentence is possible on such
a charge, the judge in the case ordered Smith to submit to a
competency evaluation, even though no one, including
Smith’s lawyer, suggested that Smith was anything but com-

petent. When the competency hearing became a problem later .

on, the judge explained that he ordered the hearing simply as
a precaution, because he didn’t want anyone complaining,
especially if Smith were found guilty and sentenced to death,
on appeal that the defendant was too crazy to have partici-
pated properly in the trial. He was, in his view, simply practic-
ing a little defensive judging.

The order was made over the phone and a court-
appointed psychiatrist undertook to perform a competency
evaluation on Smith. The doctor appeared at the county jail
where Smith was being held and spent about ninety minutes
with the alleged murderer. He explained that he was a psychi-
atrist and had been asked by the judge to evaluate Smith’s
competency to stand trial. Smith was polite, pleasant, and
responsive, and cooperated fully with the psychiatrist. During
this time, the doctor conducted a five-part exam: (1) general
appearance and behavior, (2) production of thought, (3)
affect/mood, (4) content of thought, and (5) orientation to
time, place, and person.

The general appearance segment, according to the
doctor, was “simply observation of how the person walks into
the interview room, the way they sit, the attention or lack of
attention to personal appearance.” In particular, the doctor
used this information to determine whether the person was or
seemed depressed, agitated, or anxious. The “production of
thought” segment inyolved having Smith talk, after which the

“Perea secsenesetagnommese

The “Hanging Psychiatrist” 163

doctor decided whether he made sense, whether his thought
was linear, or, conversely, whether it was confused, circular,
or obsessive. The affect/mood evaluation attempted to deter-
mine whether how Smith talked about something matched the
subject of his talk. Thus, when talking about a pleasant expe-
rience, the person’s voice and physical demeanor should reflect
the positive quality of the experience. In the “content of
thought” segment, Smith was asked about his past and
present. The final segment, the “orientation,” attempted to
determine if Smith knew who he was, where he was, when it
was, and whether he could focus, concentrate, and remember
from moment to moment what was happening. On the basis
of this five-part test, the psychiatrist sent a letter to the judge,
indicating that he had conducted the examination and had
found Emest Benjamin Smith, Jr., competent to stand trial. _
Smith’s attorney was never informed by the court or by
the psychiatrist that this competency evaluation had taken
place. If he had known, he might have attempted to stop it, or
he might have insisted on being present during it. Or he might
have taken it at face value and let it happen just as it did,
What harm could a competency hearing do to Smith? Any
statements he made about the crime itself could not be intro-
duced as evidence in the trial, and if he were found incompe-
tent, he wouldn’t have to stand trial. But the attorney knew
there was no question of Smith’s being found incompetent.
During the trial Smith’s attorney was given a list of all
the witnesses the prosecution expected to call, as was required
by law. He was also given access to prosecution files on
the case. It was in these files that he found a copy of the
letter stating that Smith was competent to stand trial. He
could not have been happy to find that the evaluation had
been conducted by Dr. James Grigson, the Dallas psychiatrist
the press was fond of referring to as “the hanging psy-
chiatrist” and “the killer shrink.” The attorney checked the
witness list. Grigson’s name was not on it, neither as a witness
in the guilt phase of the trial nor in the penalty phase, so the
A

UNIVERSITY OF ALABAS

+ N
164 JAMES GRIGSO

attomey probably thought that the competency hearing could
not harm his client.

Under Texas law, a case that might result in the death
penalty is tried in two parts, in what is called a bifurcated
trial. During the guilt phase of the trial, the jurors decide
whether or not the defendant is guilty. If they find him guilty,
the penalty phase is then held, in which they decide on the
basis of additional evidence whether to order the death
penalty or a term of imprisonment. In order to decide for the
death penalty, a Texas jury must consider three factors:
(x) whether the murder was deliberate; (2) whether the de-
fendant’s conduct was unreasonable in response to the provo-
cation;-and (3) whether the defendant is likely to repeat his
violent deeds in the future. If the jury answers “yes” to all
three questions after they have heard the additional evidence,
then the death penalty is automatic. If all three are answered
no, then only a prison sentence can be given. ,

Smith was found guilty in the first phase of the trial,
which was not a great surprise. His attorney’s hopes were
pinned on the penalty phase. Smith had several things going
for him. First, his only previous conviction had been for pos-
session of less than an ounce of marijuana. He had been
charged with some other, more serious crimes, but since he
was never found guilty, those charges could not be brought
before the jury in this trial. Second, Smith had not done the
actual shooting. Third, although he had been carrying a gun,
the weapon had misfired and there was some evidence that
Smith knew the gun was defective. There was conflicting testi-
mony as to whether Smith had said, “Get him, Howie” (the
“him” referring to the cashier) or “Look out, Howie.” There-
fore, there was a reasonable chance that they could get “no’s
from the jury on all three questions. ,

When the penalty phase began, the prosecution offered
no witnesses but requested permission to reopen, which meant
that the prosecution could later request the introduction of
further testimony; The court granted permission. Smith’s

excel

The “Hanging Psychiatrist” 165

attomey called three witnesses, each of whom testified to
Smith’s good character. The testimony was brief and to the
point. Once the defense rested, the prosecution wanted to ex-
ercise its request to reopen. They had only one witness. The
judge agreed. Smith’s attorney could hardly believe it when he
heard that the one witness they wished to call was Dr. James
Grigson.

He objected. He objected strenuously and lengthily. First
of all, he had never requested a mental examination of Smith;
second, the examination had been conducted without his
being informed; third, the results of the exam had not been
made available to him; fourth, the purpose of the exam was a’
competency evaluation, not a penalty recommendation; fifth,
Smith had not been told that his statements to Grigson could
be used against him at the trial; sixth, Smith had been denied
counsel during this evaluation; and seventh, the prosecuting
attorney had concealed his plan to have Grigson testify at the
trial by omitting his name from the witness lists.

The judge listened to his long list of objections and
overruled them all with the waming that Grigson was not to
testify to any of the specific statements that Smith had made,
and that he could only testify to his opinion on the matter at
hand, an opinion that Grigson had come to as a result of
listening to Smith’s statements. The primary focus of Grig-
son's. testimony to the jury was whether the defendant was
likely to repeat his violent deeds in the future. This was not an
easy question, since there was no record of previous violent
deeds, but Dr. Grigson had little problem with the query. He
stated that Smith would repeat his violent deed again and
again and again, that violence was all Emest Benjamin Smith,
Jz, knew, and that Smith was now, and always would be, a
psychopath, a sociopath, and a man without a conscience.
The jury came back with a death sentence.

James Grigson, M.D., has a private psychiatric practice
in Dallas. He is a local boy and a graduate of Baylor and
Southwestern Medical School (now part of the University of
MNIVERSITY OF A

166 JAMES GRIGSON

Texas Health Science Center at Dallas) who did his psychi-
atric residency at Parkland and Timberlawn hospitals in Dal-
las. Although he has been accused by a University of Texas
law professor of “operating at the brink of quackery, 7 his
credentials are in order. He is certified by the American
Board of Neurology and Psychiatry and was for some years
on the medical faculty of Southwestern Medical School. He
has been conducting examinations of criminals since the mid-
sixties and, after fifteen years, he estimates that he has inter-
viewed over 8,o00 men and women charged with crimes. He.
has participated in numerous trials and is respected by defense: j
lawyers who have. reason to know him to be a formidable
witness. ;
Physicians, including psychiatrists, are often uncomfort- + !
able in the courtroom. One physician has suggested this is | |
because the doctor is not in control of the situation. This; .
may be at least part of the explanation. The psychiatrist fre-' ‘|
quently bristles or becomes defensive under the harsh cross-
examination that the adversary method of the courtroom re-
quires. Often, he sounds as if he believes he is being picked on
unduly by the attorneys, and he begins to teact emotionally,
frequently claiming far more certainty than his knowledge
genuinely allows. If the opposing attorney is able to provoke
him sufficiently, the psychiatrist sooner or later will leap out
on the proverbial limb and the lawyer will obligingly cut him
down.

An additional ‘cause of psychiatrists’ discomfort in the
courtroom may be that juries are generally thought to be hos-
tile to them. The psychiatrist often speaks a technical lan-
guage or a jargon that the juror does not understand. He
often appears to be patronizing the jurors, and may be from a
different social class than that of the jurors. One criminal
defense attorney pointed out that psychiatrists will come into
court in weird clothing—for example, a suit, no tie, and
tennis shoes—setting themselves apart from and frequently
alienating the jury. But none of that is typical of James
Grigson.

The “Hanging Psychiatrist” 167

At forty-eight, Grigson is a tall, soft-spoken witness. He
always dresses appropriately, like a business or professional
man. He is affable, at ease, and confident about his opinions.
He explains the examination he gives to the defendant in
simple ordinary language, which is appropriate because it’s a
simple ordinary examination. He states his conclusions with a
minimum of psychiatric jargon. He is a model of humility and
sincerity. The jury responds very positively to him, since he is
not a hired gun, available at a price to mouth any opinion.
Jim Grigson really believes what he testifies to, and what he
testifies to in more and more cases is that the defendant
should receive the death penalty because he is, in Grigson’s
own language, a sociopath, a man without conscience who
will go on throughout his life performing violent acts in his
own self-interest. The defendant, Grigson frequently says, is
as bad a sociopath as one can be and therefore can’t get
any worse; but he won’t get better either, for psychiatry has
nothing to offer the sociopath.

Jim Grigson has testified to the sociopathic personality
of the defendant in about sixty capital murder cases in Texas.
With one or two exceptions, the jury sentenced the defendant
to death, primarily and often exclusively on the basis of Grig-
son’s testimony.

In 1974, when Emest Benjamin Smith, Jr.’s, attomey
objected to Dr. Grigson’s testifying during the penalty phase,
Grigson had not yet acquired the reputation he has today. But
it was well known even then that having Jim Grigson against
you was bad news. Grigson says that he doesn’t testify for
anyone. He just tells what he believes to be the truth. He has
been hired by federal judges; attommey generals; U.S. attor-
neys; judicial district judges from Texas, Arizona, and
Alaska; district attorneys; and defense attorneys. The defense
attorneys who hate to see him on the other side would love to
have him on their team because he is such a formidable, un-
flappable witness. Having Grigson for your witness is like hav-
ing the only wild card in a poker game; he makes you look
like a sure winner.

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168 JAMES GRIGSON

Grigson’s reputation with the press is as a prosecution
witness, but he himself points out that in about one-third of
the death penalty examinations he conducts, his judgment is
not useful to the prosecution because he believes there is hope
for the defendant. Newspaper accounts stress that he always
testifies to the unredeemable nature and character of the de-
fendant, but of course if he were not prepared to testify to
that, the prosecution would not call him to the stand.

His testimony in all these cases is remarkably similar. He
describes the five-part, all-purpose examination he conducts
and then states his opinion that, based on that exam, the de-
fendant is a sociopath. He then describes and defines socio-
pathy and explains that it is (a) incurable and (b) not a
mental illness of any sort. He postulates a scale of one to ten
and places the victim at ten. He speaks with certainty. When
asked by the defense lawyer if he is ever wrong about such

judgments, he acknowledges that he is sometimes wrong, |

“but,” he continues, “in this case Tm not.”

He was absolutely certain about his judgment of Emest
Benjamin Smith, Jr. After explaining that Smith was a severe
sociopath (up there at ten on the scale), the prosecuting at-
tomey asked whether Grigson thought Smith felt any guilt or
remorse, whether, in effect, Smith had any conscience.

A. No. He has none.

Q. Now. Dr. Grigson, what is your prognosis in this case?
A. Oh, he will continue his previous behavior—that
which he has done in the past. He will do it in the future.
Q. All right. So, were he released into society, I take it,
then, you would not expect his behavior to differ from
what it has been?

A. No. If anything, it would only get worse.

Q. Now, Dr. Grigson, this sociopathic personality that
Smith has—is this a condition that will improve with
time? I guess what I’m asking you is this: Is this a stage
that he is passing through that he will grow out of?

A. No. This is not what you would consider a stage. This

rasa:

The “Hanging Psychiatrist” 169

is a way of life. Just as you work every day, well, his per-
sonality comes out in his behavior, but it is not a stage he
is going through. It’s only something he will continue.
Q. You said get worse?
A. Yes.
Q. [fit can?
A. Right .. . It’s my opinion that really, Mr. Smith does
not have any regard for another human being’s property
or for their life, regardless of who it may be. This is what
makes him such a very severe sociopath. He has com-
plete disregard for another human being’s life.
Q. Dr. Grigson, does the field of medicine—perhaps psy-
chiatric treatment and/or hospitalization of some sort—
does that have anything beneficial to offer someone like
Emest Benjamin Smith?
‘A. We don’t have anything in medicine or psychiatry
that in’ any way at all modifies or changes this behavior.
We don’t have it. ‘here is no treatment, no medicine,
nothing that’s going to change this behavior.
Q. Now, Dr. Grigson, do you have an opinion as to
whether or not there is a possibility that the defendant,
Emest Benjamin Smith, will commit criminal acts of
violence that will constitute a continuing threat to
society?

_ A. Yes sir, I have an opinion as to that.
Q. And what is that opinion?
A. That certainly Mr. Smith is going to go ahead and
commit other similar or same criminal acts if given the
opportunity to do so.
Q. Now, Dr. Grigson, I believe you have stated that this
man has no remorse or sorrow for what he has done?
A. No. He has none.

Grigson is always sure. He is difficult to cross-examine
because of his certainty, even though much of what he says is
scientifically questionable or purely speculative. When de-
fense witnesses know he is to testify in the penalty trial, they

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170 JAMES GRIGSON

can counter with their own psychiatrists who argue that the
defendant is not likely to continue to be violent. Except, of
course, it’s hard to get a psychiatrist to be as certain as Grig-
son, since most psychiatrists are not convinced that their psy-
chiatric licenses also qualify them to act as fortune-tellers.

‘As a result, Grigson is often asked no questions at all by
the defense counsel. He has acknowledged that he thinks they
are somewhat afraid of him and that doubtless pleases him.

After the jury retumed with the death penalty in the
Smith case, the decision was appealed. Smith went to prison in

Huntsville, Texas, to wait out the months while the slow ap- |

peals process moved along. In 1976 the Texas Court of Crim-
inal Appeals affirmed Smith’s conviction and sentence, and in
1977 the U.S. Supreme Court refused to consider the case.
Later in 1977 the U.S. District Court for Northern ‘Texas

agreed to hear the case and the judge vacated the death sen- |

tence on grounds that Smith’s attorney had raised during the .

penalty phase of the trial—namely, that Grigson’s failure to
inform Smith or his lawyer that information gained during the
competency hearing would be used during the trial was a
violation of due process, of Smith’s right to effective counsel,
and of his right to introduce complete evidence. ‘This was, of

course, a victory for Smith, and Estelle, or rather the State of ,
Texas (Estelle was the head of the Texas Department of Cor- :

rections against whom the original suit had been filed), re-
quested a new trial, but that motion was denied.

Next, Texas-Estelle appealed the U.S. District Court's
ruling to the U.S..Court of Appeals for the Fifth Circuit
and, in 1979, five years after the original jury verdict, that
court upheld the U.S. District Court’s judgment for Smith.
Texas was not about to give up so easily, however, and in
1980 the U.S. Supreme Court agreed to hear arguments and
to make a final ruling on- the case during its 1980-1981
season. a

By 1981 Smith had spent seven years in the Huntsville
prison. He had, so far, failed to live up to Dr. Grigson’s billing

&

The “Hanging Psychiatrist” 171

of him as a man whose life would be dedicated to violence,
unless one counted the fact that he had been knifed by an-
other prisoner while at Huntsville. As Smith himself said, dur-
ing his time in prison, the “only violent act [he’d] been in-
volved in, [he] was the victim.” During those seven years Dr.
Grigson testified in many more cases in which the defendant
stood a chance of execution. About one-third of the men
awaiting execution in Texas prisons had had the “benefit” of
Dr. Grigson’s testimony. Also during those seven years, Uni-
versity of Texas Law Professor George Dix had begun seri-
ously to study Dr. Grigson’s testimony. In 1978 he published
his study entitled “Participation by Mental Health Profes-
sionals in Capital Murder Sentencing.” Dix was appalled by
what he had found: Grigson was using a diagnostic category
(sociopath) that the American Psychiatric Association had
stopped using ten years earlier. Beyond that, Dix thought that
the current evidence about psychiatrists’ ability to predict vio-
lent behavior over the long-run conclusively disproved Grig-
son’s views, and that Grigson’s willingness to hinge these life-
ordeath judgments on a single ninety-minute interview was
shocking.

Professor Dix had some considerable support on these
issues, including the American Psychiatric Association. The
APA is a national professional organization with 26,000 of
the 33,000 psychiatrists in the United States as members, in-
cluding Dr. Grigson. It is also the professional organization
that sets the ethical standards for psychiatric practice and de-
termines the officially sanctioned psychiatric diagnoses and
mental illnesses. In the Smith case, the APA decided to file a
legal brief in support of Smith and in opposition to its own
member, Dr. Grigson. They filed their amicus curiae (friend
of the court) brief with the Fifth Circuit Appellate Court, and
when the U.S. Supreme Court agreed to hear Estelle v. Smith,
they filed a second brief with that court.

The APA explained its willingness to be involved in the
case by pointing out that it

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172 JAMES GRIGSON

has monitored the administration of capital punishment
statutes and the role of psychiatric testimony in that pro-
cess, The instant case specifically involves the use of psy-
chiatric testimony in Texas on the capital sentencing
issue of whether a defendant is likely to commit criminal
acts in the future. As such, it raises significant issues con-
cerning the role of psychiatrists in capital cases. Resolu-
tion of those issues will have an important impact not
only on the administration of capital punishment, but
also on the quality and integrity of forensic psychiatry. . . -
The Association is uniquely qualified to advise this Court
as to the reliability of psychiatric predictions of long-term
future criminal behavior, which is a key issue under the
Texas capital sentencing statute. The Association is also
qualified to discuss the potential impact of any restrictions
as to such testimony on other criminal law issues concern-
ing competency and sanity determinations. ‘These factors
are critically relevant to this Court's consideration of this
case, and the American Psychiatric Association believes
that they will not be adequately briefed either by peti-
tioner or by respondent.

In its brief to the Supreme Court, the APA argued three
major points. First, they argued that psychiatrists should be
forbidden to testify in penalty phases of trials if their testi-

| mony was given with respect to predicting future dangerous

| behavior of the defendant. Second, they urged that if the

| court chose to permit psychiatrists to testify in the penalty
phase of trials, it should require psychiatrists to give notice to
the defendant that any statement he made in the interview
could be used against him in the trial and that, further, he had.
the right to remain silent. Third, they urged that attorneys be
given full notice of such examinations and of the possibility
that testimony would be given as a result of the interview.

Although the APA chose to make its stand with Estelle
y. Smith, its position applied to many more cases than this
one. The use of psychiatric testimony in capital case-penalty

The “Hanging Psychiatrist” 173

trials was common in Texas and in several other states, with
Virginia’s procedures being most comparable to those of
Texas. Grigson had proffered the same kind of testimony that
the APA wanted outlawed in many Texas cases (eighteen of
the Texas cases were specifically criticized by the U.S. District
Court decision in Estelle). But, although Grigson figured
prominently in these cases, he was not the only psychiatrist
who was providing this kind of testimony. The APA was not
apparently on a witch hunt against one of its own members. It
did, however, seem to be in the unusual position of arguing
that a limit should be placed on its own members’ professional
activities as a matter of principle. Even Jim Grigson didn’t
think they were out to get him, ‘but he disagreed entirely with
the APA’s view of what principle was being defended in the
case.
According to the APA, psychiatrists should not testify
about probable future violence by defendants because scientif-
ically conducted studies had repeatedly shown that psychi-
atrists had no particular expertise in making such predictions.
In fact, some of the studies showed -that psychiatrists were
considerably less accurate than other groups, including
policemen. Psychiatrists, it fumed out, not only tended to
overpredict dangerousness, expecting it a lot more frequently
than it turned out to exist; they also tended to be fairly inac-
curate in their selection as well. For example, suppose a
group of one hundred people were to be evaluated for future
dangerousness and the fact was that ten of them would
actually be violent in the future. Psychiatrists might be likely
to predict that twenty members of the group are dangerous
(overprediction, since they have included at least ten “false
positives,” i.e, people who they say are dangerous but are
not), and within that twenty that they have specified, only five
of the actual dangerous groups of ten are included (thus, an
inaccurate selection of 50 percent).

The APA claimed that, because there had been contin-
uous requests for psychiatrists to make predictions about dan-
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174 JAMES GRIGSON

gerousness both in civil and criminal matters, it had con-
ducted a lengthy survey regarding violence and psychiatric
understanding of “evaluation, management, and prediction of
psychiatric behavior.” The conclusion of the 1974 study was
that psychiatrists had not been able successfully to predict
violence at any high rate of reliability except in those in-
stances where the individual had committed a significant
number of violent acts over a period of time (for example, a
parent who regularly abused a child). But, in those cases in
which psychiatrists were fairly accurate, so were other people.
Tt didn’t appear that there was any psychiatric expertise that
was required to make the prediction. College students had

been able to predict it as well as psychiatrists. It was likely »

that jurors also could do it as well. It was probably a function
of common sense.
The APA task force report concluded that “psychiatric

expertise in the prediction of ‘dangerousness’ is not estab-

lished and clinicians should avoid ‘conclusory’ judgments in
this regard.” It was just this kind of “conclusory” judgment
that the APA particularly worried about in the testimony of
psychiatrists like Grigson, for Grigson and others almost al-
ways testified that the defendant was certain to continue to be

a danger to society. They spoke without doubts, without un- -
certainties, without any sense of probabilities in their judg-

ments. The APA was convinced that psychiatry did not have
this capability, and, if Grigson had it, it was not by virtue of his
being a psychiatrist. They believed he should stop testifying
under that heading, because it gave his views a dishonest
cloak of greater expertise.

Many APA members, and particularly those involved in
the preparation of the amicus briefs to the Appellate Court
and the Supreme Court, were also appalled at other aspects of
Grigson’s testimony. But the nature of a legal brief is such
that matters not specifically legal often are lost. As a result,
the other serious objection about Grigson was cursorily men-
tioned in a footnote. What many psychiatrists found most

The “Hanging Psychiatrist” 175
outrageous about Grigson’s behavior was his complete disre-
gard for the authorized views of psychiatry, which were
promulgated by the APA. In particular, they were offended
by Grigson’s repeated use in trial after trial of the term socio-
path. Psychiatry had cast off that diagnosis in 1968. Grigson
was, in effect, dragging up a part of their past they would just
as soon forget.

To understand the importance of the sociopath issue,
one must first understand something about how psychiatry, as
a profession, developed. Early in the history of the field, psy-
chiatrists were generally called alienists, a term borrowed
from the French and indicating a specialist in diseases of the
nervous system. “Psychiatrist” was a word the Germans used
and it had unpleasant associations for Americans in the field
because in Germany the term had heavy metaphysical associ-
ations, particularly relating to the soul or the mind (as op-
posed to the brain). These American doctors thought of
themselves as scientists and as physicians to the body no less
than other physicians, but physicians concerned with the
nervous system. Around the tum of the century, however,
there was a separation within the field and it was divided
between two groups who became known as neurologists and
psychiatrists. The neurologists took over: the nervous system
and the psychiatrists (no longer alienists) inherited “mental
illness.” The problem was, however, defining mental illness.
No other medical specialist had ever had to face such a prob-
Jem. With a fine sense of practicality and some sense of
hubris, the psychiatrists decided that the only way to decide
what was and was not a mental illness was for them to sit
down and decide, which they did. The results were published
in the first edition of the psychiatric blue print, the Diagnostic
and Statistical Manual, or DSM I. ‘This was published in
1952, drawing primarily upon the work of army psychiatrists
during World War II. The American Psychiatric Association
describes their initial effort as “the first. official manual of
mental disorders to contain a glossary of descriptions of the
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176 JAMES GRIGSON

diagnostic categories.” DSM I told practicing psychiatrists
what was a mental disease and what was not (if it was not
included, it was not a mental disease), what were the symp-
toms of particular diseases, and what were the prognoses. It
was, in fact, a vitally important and extremely significant ini-
tial effort in classification and description of mental illness,
but like any early work of that sort, it had many problems and
errors. However, the problems that DSM I had were unlike
the errors of other classification schemes.

Perhaps the diagnostic alteration best known to the pub-
lic was the APA’s decision that homosexuality was not a
mental illness. Such-an action seriously undercut public appre-
ciation of psychiatry’s positive work by suggesting that either
psychiatrists’ judginents were arbitrary or they had no stan-
dards at all. Americans were used to thinking of diseases as
fixed entities. They could scarcely imagine doctors deciding
that pneumonia, for example, wasn’t a disease any more.

Reactions like these were related to the deeply ingrained
connection and confusion between mental illness and sin. It
was once widely believed that the mentally ill were in the
devil’s grip and many people still believe that, though their
belief takes a somewhat altered form. Homosexuality, seen as
a sin, had been caught up by psychiatrists as a mental disease.
Then, when they decided that, if anything, it was merely a sin,
they dropped it from their categories. From the public's point
of view, it suggested that psychiatry thought homosexuality
was neither sinful nor a mental illness. Psychiatry, on the
other hand, was in the awkward position of having to re-
nounce its belief in the mental illness part of homosexuality
and at the same time divorce itself from religious or moral
ideas about sinfulness. They didn’t care what homosexuality
was, as long as it wasn’t considered a mental disease.

The story of sociopathy is not unlike that of homosexual-
ity as DSM I evolved through DSM II and DSM III. Up
until 1968 the APA included sociopath as a category of mental
illness. Then, with the publication of DSM II in 1968, the

The “Hanging Psychiatrist” 177

term sociopath was dropped and a new classification, “anti-
social personality disorder,” was introduced. In DSM Ti,
published in 1980, antisocial personality disorder continues to
be listed as a mental illness and requires for diagnosis “a
broad range of the patient’s behavior.” In the footnote in their
brief in Estelle, the APA objected to Grigson’s use of sociopath
as a diagnosis because they don’t use it any more, and even
more so because his diagnosis was based on a brief examina-
tion in which the defendant evinced no remorse.

Grigson’s use of the sociopath diagnosis as well as his
willingness to be very certain about his judgments of future
dangerousness are far more closely related to the idea of
mental illness as sin than to the idea of mental illness as dis-
ease. And it is perhaps this aspect of his testimony that
offended the APA the most.

Grigson, in fact, defended himself against his many
critics as handily out of court as in. He finally began to refuse
interviews to journalists, giving as his reason that he was tired
of seeing himself referred to as “the hanging shrink,” “Doctor
Death,” “the Doctor of Doom,” and “the prosecution’s hired
gun.” But in a 1978 interview with a reporter from a Texas
magazine, Grigson allowed that the APA’s disapproval of his
actions was of little concern to him.

I have been doing this since 1960, and in that time I've
examined more murderers and more rapists than the com-
bined number examined by the people who wrote the
APA diagnostic manual. And based on my experience,
here’s my definition of a sociopath. First, a sociopath
doesn’t have a conscience. He feels no remorse about his
crime. I say to him, “Hey, how did you feel about killing
these people?” And he doesn’t hang his head, his cheeks
don’t flush, he doesn’t have any of the normal reactions
you or I would have. Two, he repeatedly breaks the rules
of society. Three, he cons and manipulates, lies, steals and
cheats for the pleasure of it. Most of the district attorneys
only prosecute a very specific type of person for these
178 JAMES GRIGSON

death cases... . If they prosecute a death case . . . then
that guy has already been identified as bad, bad, bad. T
think you could do away with the psychiatrist in these
cases. Just take any man off the street, show him what the
guy’s done, and most of these things are so clear cut he
would say the same things I do. But I think the jurors feel
a little better when a psychiatrist says itsomebody that’s
supposed to know more than they know.*

Grigson suggests that he is willingly doing exactly what
the APA is unwilling to have him do and is accusing him of
doing: using the mantle of psychiatric authority to validate
opinions that ordinary people would have anyway. But be-
hind Grigson’s words lies a more serious objection that the
APA might have: that Grigson is using psychiatric authority
to talk about sin, and that is really what Grigson is thinking of
when he uses the term sociopath. Sociopaths are simply what
a more religious culture knew to be unregenerate sinners, and
they knew it with no less certainty than Jim Grigson knows it.
And what could save a sinner? Not a psychiatrist, surely. That
is why there is no treatment. Only God's grace can save a
sinner, and grace is not a regular part of psychiatry or of
prison rehabilitation.

Grigson is careful in defining the sociopath (or psycho-
path—he uses the terms interchangeably) to make sure that
no one thinks that what he is talking about is a mental illness.
If it were a mental illness, then perhaps some sympathy might
appropriately be shown to the defendant. Furthermore, he
counsels, a sociopath cannot be cured. The language begins to
fall apart a little here, and the jury, unless they are totally
spellbound by Grigson, might begin to wonder why something
that isn’t an illness even might be cured. But Grigson is simply
covering all his bases. The defendant is not sick, cannot be
cured, and will only get worse. If it were a riddle (what does a

* (Texas Monthly Reporter, “Killers and Shrinks,” John Bloom, July
1978, pp. 64, 66, 68. Quote from p. 68.)

The “Hanging Psychiatrist” 179

person have who is not sick, cannot be cured and will only get
worse? ), the only answer would be “sin.”

It is perhaps this about Grigson that organized psychi-
atry hates the most. He drags psychiatrists backward into the
semireligious quagmire from which they have struggled for so
long to remove themselves. Grigson, on the other hand, thinks
they're out to get him and others who testify as he does be-
cause he believes establishment psychiatrists want to eliminate
the death penalty. If APA could prevent psychiatrists from
testifying in the penalty phase of capital trials, jurors might be
too soft-hearted to vote for the death penalty. Grigson is will-
ing to testify because he believes in the death penalty and
thinks that the small group at the APA that determines its
public positions opposes him in order to oppose the death
penalty.

The Supreme Court handed down its decision in Estelle
v. Smith on May 18, 1981. The victory went to Smith. The
APA got part of what it wanted, in that Grigson’s style of
witnessing was not approved. The Court ruled, first, that
Smith’s death sentence be vacated and a new penalty trial
held. Second, in ruling on the procedures of the case, they
held that psychiatrists may testify about future dangerousness
where such testimony is permitted (an earlier Supreme Court
decision on that question had pointed out that although such
predictions were extremely difficult to make, someone, never-
theless, must make them). However, the court also ruled that
the defendant must be informed of the purpose of any exami-
nation wherein his statements might later be used against him;
that the defendant be permitted to invoke the Fifth Amend-
ment; and that the defendant’s lawyer be apprised of any such
interview and testimony and have the opportunity to advise
his client about answering questions.

Jim Grigson can continue to testify in the penalty phase
of capital offense trials in Texas (or Idaho, Oklahoma, Vir-
ginia, Washington, or wherever else such testimony is al-
lowed). He will have to tell the defendant the purpose of the

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UNIVERSITY OF ALABAMA

180

JAMES GRIGSON

interview and lawyers will doubtless urge their clients to be
silent. Grigson will no longer be able to testify (as he has in
the past) that the very refusal of defendants to answer a single
question was evidence of their lack of remorse and of their
severe sociopathy. Theoretically, if they will not speak to him,
he cannot testify about them.

However, in at least one trial, Grigson had not inter-
viewed the defendant but took the stand anyway. He was
asked by the prosecution about a hypothetical case, “Suppose
you interviewed a person who . . .” began the prosecuting
attorney, who then proceeded to give a run down of the de-
fendant’s life. Grigson did not find any difficulty in making a
judgment about this hypothetical person. He was a sociopath
... extreme... no hope of change . . . only get worse. The
defense attorney, on cross-examination, offered Grigson a
second and different hypothetical case. Grigson listened,
judged, and said yes, that hypothetical person was another
sociopath, with no hope of change, and so on. The defense
attorney then explained with subdued pleasure to Grigson and
the jury, his hypothetical case was the life history to age nine-

teen of a well-known, very successful major league baseball
player, Ron LeFlore.

Where there is no question of mental illness, there is no
need for expert psychiatric witnesses. Doctors like Grigson
provide us with excuses for not having to make decisions
about capital punishment. To make such a decision is surely
one of the hardest choices life can bring, but to make the
decision on the basis of false premises or by hiding behind
false expertise is immoral. If we cannot bear to make these
decisions because they are so hard, then we should learn to
get along without executions until we can accept the responsi-
bility for the decision. Someone, says the Supreme Court, has

to make these decisions. But it should not be Jim Grigson or
psychiatrists; it should be us.

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