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November 05, 2007

SURVIVING DEATH ROW

Essay by Billy Wayne Sinclair
E-mail Billy Wayne Sinclair Billy@JohnTFloyd.com

Since 1930, when reliable statistics started being kept, and August 2007, there were 4,936 government-sanctioned executions carried out in the United States during that seventy-seven year period. It has been reported that during the sixty-nine year period between 1882 and 1951 an additional 4,730 lynchings in America.

Americans are a people who fervently believe in the death penalty’s “eye for an eye” concept of justice.

This was made evident following Furman v. Georgia – a 1972 United States Supreme Court decision that effectively vacated the 408 death sentences which had been imposed on condemned inmates in this country. The Furman decision did not abolish the death penalty. The Supreme Court, in a split 5-4 decision, simply held that the penalty as it was then indiscriminately applied violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Following Furman, thirty-seven states, and the Federal government, enacted death penalty statutes that satisfied the Supreme Court’s constitutional guidelines.

The first post-Furman execution was Gary Gilmore in Utah in 1976. Gilmore actually insisted to the chagrin of death penalty opponents that his death sentence by firing squad be carried out. From Gilmore through August 1, 2007, there were 1090 executions carried out in this country – 921 by lethal injection, 153 by electrocution, 11 by the gas chamber, 3 by hanging, and 2 by firing squad.

At least 40 of those executions were botched. One of the worst botched attempts involved the 1983 execution of a convicted child molester/killer named Jimmy Lee Gray in Mississippi’s gas chamber. Gray gasped for air, and repeatedly slammed his head back against a steel pole as he moaned in horrible agony. It was rumored that the Gray execution was deliberately botched by prison officials who hated the child rapist.

Four months earlier in Alabama’s death chamber the electrode attached to the leg of convicted murderer John Evans burst into flames and sparks and smoke bellowed from under the hood the hood covering his face. Two physicians entered the death chamber and found Evans’ heart still beating. The electrode was reattached to his leg, and fourteen minutes later after a third jolt of electricity had been applied, the physicians were able to pronounce the charred and smoldering body dead.

Following these and other botched executions by traditional American execution methods (gas chamber and electric chair), the rest of the country followed the 1977 lead of Oklahoma and adopted “lethal injection” as the official method of execution. Today thirty-six states and the federal government use lethal injection as the official execution method. Only Nebraska retains the electric chair while two other states, Utah and Washington, offer the firing squad and hanging as choice options for the condemned inmate. The first lethal injection execution was actually carried out the year before the Gray/Evans botched executions when Texas put Charles Brooks to death.

But lethal injection has proven to be a less than stellar method of putting people to death. Adopted as a “humane alternative” much like the guillotine in France in the 1700s, lethal injection has also produced some horribly botched executions. One of the most publicized involved a Florida condemned inmate named Angel Diaz who in 2006 suffered through a 34-minute torture ordeal that involved two doses of lethal chemicals being administered before doctors could mercifully pronounce him dead. A subsequent autopsy revealed that the needles had been pushed through Diaz’s veins directly into his arms. Five months later it took Ohio prison officials 90 minutes to dispatch Christopher Newton to the other side of life. The process was so drawn out as prison officials tried to locate a suitable vein that the procedure was halted to allow Newton to take a bathroom break. At one point Newton became so frustrated with the “lethal injection” process that he asked prison officials, “can you just give me something by mouth to end this?”

Fifty-eight percent of the post-Furman executions through July 2007 were Caucasian and thirty-four percent African-American. In April 2006 there were 3,370 inmates on the nation’s death rows awaiting execution – forty-five percent Caucasian, forty-two percent African-American, and ten percent Hispanic. With more than 400 post-Furman executions to its “Dead Man Walking” credit, Texas by far leads the nation in carrying out the death penalty. Virginia (98) and Oklahoma (85) are a distant second and third in putting condemned inmates down.

Eleven of those 1090 post-Furman executions were female and twenty-two were offenders who committed their crimes under the age of 18. Some were mentally ill, others mentally retarded, and more than likely some were innocent. At least fourteen condemned inmates have been exonerated by DNA evidence in the post-Furman execution era. Scores of those put to death were convicted by prosecutors who fabricated evidence, knowingly used perjured testimony, and suppressed favorable evidence relating to either guilt or punishment. Most of those put to death were represented at trial and sentencing by state appointed attorneys who lacked either the competence or resources to provide effective representation.

In April 1996 former President Bill Clinton signed into law the Antiterrorism and Effective Death Penalty Act which severely limited access to the federal writ of habeas corpus by state prisoners. AEDPA, as it is known in the courts, was enacted to allow states to speed up the death penalty process and the Act has accomplished that objective: 70 percent of the 1090 post-Furman executions were carried out in the ten-year period since 1996 while 30 percent were carried out during the previous 20-year period between 1976 and 1996.

The death penalty in America has a sordid and ugly history with the questionable executions of Nicola Sacco and Vanzetta, Bruno Hauptman, Julius and Ethel Rosenberg, and Caryl Chessman. But it will be the lesser celebrated post-Furman executions fueled by AEDPA that will one day be the real stain on American history. I am a death row survivor. I spent five years, eight months, and twenty-two days on death row at the Louisiana State Penitentiary. I was one of the 408 condemned inmates spared execution by the Furman decision.

Sitting at my desk in a 16th floor high rise condo in downtown Houston researching on the Internet for an article about “botched executions” for a law firm website, I came across “The Execution Tapes” – an hour-long PBS special hosted by Ray Suarez which featured excerpts from audio tapes of 22 Georgia executions. These tape recordings were acquired by Sound Portraits who, in conjunction with WNYC, produced “The Execution Tapes.”

I listened to the full recording of the 1984 execution of a convicted murderer named Ivon Ray Stanley. It was an emotional experience. A flood of death row memories rushed into my brain. I realized so clearly that the Stanley execution was an exercise in evil. The official banality and indifference in the manner in which that condemned inmate was put to death was stunning. While you do not “hear” the actual execution of Stanley, you hear a play-by-play description of it through the rural voice of an assistant prison warden. It doesn’t take much imagination to visualize the death process unfolded in the warden’s narrative.

At the end of the execution the corrections officials (to whom the assistant warden had been speaking while recording the execution ritual) praised the prison warden for a “great job” in carrying out the execution, Prison officials obviously didn’t want the State of Georgia to incur the “bad press” endured by Alabama and Mississippi following the John Evans and Jimmy Lee Gray “botched” executions.

Clearly pleased by the official praise, the warden responded to the corrections higher-ups by saying: “Send us another one on down here.”

I sat back in my chair, trying to comprehend the enormity of what I had heard – the actual execution of a human being. I could easily visualize not only the reaction but the expressions of the corrections officials as they exuded praise and warden subserviently lapped it up. These were rural, twangy-voiced, hard-bitten Southern prison officials whose attitudes about humanity and punishment were rooted in a race-driven culture which has historically found pleasure in the suffering of others.

I know these people. I spent nearly six years on death row and over four decades in a prison system under their boot. Although I was spared the brutal fate of Ivon Ray Stanley, there were many times during that 40-year prison experience when I felt the death penalty would have been more mercy than the “life sentence” I served. These were moments of depression borne of such utter despair that the human soul felt beaten down and stomped into a corner by the rigors of doing time in a Southern prison.

Since my release from the prison system, some death penalty opponents have used me as an “example” that the death penalty is wrong and human redemption possible. Earlier this year I was asked by an attorney to go to a local jail and speak with an inmate facing the death penalty. I will identify the inmate only as James to protect his privacy and the attorney’s interest in the case. Although he initially denied involvement in the charged murder, James ultimately gave the police a confession under questionable but not necessarily unlawful pressure.

Armed with the confession and other corroborating evidence, the District Attorney’s Office stated its intention to seek the death penalty against James. His court-appointed attorneys managed to convince the district attorney’s office to accept a “plea bargain” to a lesser sentence of life imprisonment – one that would require James to serve 30 years in prison before being eligible for parole. James was not receptive to the proposed “deal.” He was emphatic that he would never accept a sentence that would cause him to spend the rest of his life in prison. He preferred death.

Because of my death row and prison experience, James’ attorney felt I could be instrumental in convincing their client to accept the life sentence. The request put me between the horns of a dilemma – while I do not believe in the death penalty, it is difficult for me to make a case for life imprisonment as an alternative. But after meeting with the attorney and listening to their appeal, I agreed to speak to James.

The county jail officials had a real problem with letting me in the facility to visit with James. His attorney had to lobby hard to secure the necessary official approval, threatening if need be to file a motion with the court to secure my access to the jail. “Keep an eye on that sonuvabitch,” the shift supervisor instructed a lower level jail official. “If he gets out of line any kind of way, lock his ass up.”

The hostile attitude of these Texas jail officials was not much different than those of Louisiana prison officials. Harsh prison memories exploded in my brain like a tsunami tidal wave. I wanted to walk away from the venture. I was on parole. I was free. I didn’t have to listen to that kind of official bullshit anymore. While I did walk out of the jail facility for a few minutes, I agreed to return only if the attorney’s investigator accompanied me during the visit. I wanted protection from any kind of official set up.

I found James easy to speak with. He is a convict. He had spent more than a decade in the state’s prison system before the “cold case” murder caught up with him. The nature and number of his tattoos confirmed prison gang affiliation. I decided to speak frank and direct to him in convict language. “I’m not here to sell you packaged goods, James,” I said. “There’s nothing easy about a life sentence, or a death sentence. I know. I had both. I managed to survive the death sentence, but there were many times when I wished I had let the Man kill me. I’ve never viewed life without parole as a merciful alternative to the death penalty. I’ve debated death penalty opponents who hold it out as some kind of act of preferred mercy.”

James was reflective. He measured his words before delivering them. “That’s my problem, man,” he said. “I don’t want to wake up one morning ten years down the road and realize I’m never getting out of prison – you know, that I am going to die in a prison hellhole. I’ve already served 16 fucking years – and these lawyers want me to start on a life sentence now.”

The investigator, who came from England to America to oppose the death penalty, sat outside the inmate visiting cubicle. She was worried. She had made the mistake of becoming emotionally involved in James’ case – not with him as a person but with him as a human being who had tremendous potential to do good work even in prison. Her sacred little liberal soul wanted to save him.

“You can go to the bank that that day will come,” I replied. “It will come again, and again. But you’re a convict, James – you have balls between your legs. You’re not a sniveling, whining, ass-sucking inmate. You’ll find a way to get up, pull that jumpsuit on, lace up those boots, and get on with the fucking day, somehow, someway. It takes character, my man, to fight a life sentence – I’ve seen many succumb to it, preferring to accept being ‘institutionalized’ over having to wage that struggle for survival. It will always be hard for you because you’d rather have the Man’s foot in your ass than his pat on your head.”

A slight smile of understanding surfaced exposing good, clean teeth. James definitely had character. He was clean-shaven, and his hair was neatly trimmed. He looked you straight in the eye. He was not a “boot-licking” inmate, and, more to the point, he was prepared to die.

“But let me tell you this, James,” I continued, trying to penetrate that “solid convict” attitude. “The Man will surely come to your cell on death row in ten years, handcuffs and shackles in hand, telling you ‘it’s time.’ That’s what the motherfucker wants – he’s the Man, he represents the system. He’s not just ‘doing his job.’ He’s there to help kill you. He’s an integral component in the death machine. He will strap you to that gurney, and guard you until your last fucking breath, and then take a perverse pleasure in your dying. He will celebrate your execution as much as ‘crime victims’ will. Your execution is what the system wants, and that motherfucker with the handcuffs and shackles is there to fulfill those desires. He’s a whore for the system, man.”

Our eyes locked. We both understood the measure of those jail guards who were watching us from the control center. G. Gordon Liddy once said that a prison guard is the lowest specimen on earth. Liddy made a good point.

“But that’s what I want, Billy,” James said. “I don’t want to live around them, or under them, for the rest of my life. I don’t want them to have that kind of control over my life – I’ve had sixteen years of that shit. I’m thirty-six years old – I’ll be sixty-six before I even eligible for parole, and you know what my chances for parole will be then. Fuck, man, you know what it’s like – how can you ask me to take that, to give up, to plead fucking guilty to a sentence that is going to put me in that situation. Man, don’t ask me to do that.”

The rage was there. I had tapped into it. I almost felt guilty about it. I had to exploit it.

“I’m not asking you to do that, James,” I said. “What I’m telling you is this: don’t give the Man a victory; don’t give him the satisfaction of giving you the death sentence and taking your life in that little room in Huntsville. You have the power to deprive the motherfucker of that satisfaction. You have the power not to let the system, and all those uniform-wearing motherfuckers who enforce it, have the pleasure of seeing you put to death.”

The guard signaled that the visit was about to end. “Listen to me,” I said. “I’m not telling you to take that life sentence. What I am telling you is this: don’t give the Man the fucking pleasure of killing you. Don’t let that asshole have that pleasure. You don’t have to do that life sentence. You know that. If you ever reach a point where you can’t do it anymore, get out of your bed late one night, walk to the dorm “pisser,” sit on one of those stinking-ass toilets, and quietly slit your throat with a razor blade. That’s your real power, James. You have the power to deny the Man an opportunity to execute you and, you have the power after that to step out of that life sentence anytime you choose to.”

The guard’s voice bellowed over a squeaky intercom. “Visiting time’s over.”

We both stood up to depart. James put his fist against the scarred glass that separated us.

“Thanks for coming, Billy.”

I nodded. “Think about it,” I said before walking away.

James did think about it. He pled guilty to the life sentence two days before his death penalty trial was to begin.

While I had some misgivings, I was actually glad James accepted the life sentence. He now controls his destiny. Had he elected to go to trial, he would have been convicted, sentenced to death, and executed. His execution would have been as banal as the execution of Ivon Ray Stanley.

Texas is the epicenter of the death penalty. It worships the killing process. It has executed mass murderers with the same zeal that it executed more than likely innocent inmates like Gary Graham, Todd Willingham, and Reuben Cantu. It has also executed more than its share of the mentally disturbed, and put to death at least two dozens more inmates who never had their cases heard in federal court. It has even executed condemned inmates who did not kill anyone through the state’s “law of parties.

But the State of Texas defied all the rules of legal logic and human decency when it executed two men on the prosecutorial theory that each fired the single fatal shot that killed the victim.
The second man put to death was Joseph Nichols. He was executed on March 7, 2007.
It was never seriously disputed that Joseph Nichols joined Willie Ray Williams in the robbery of Joseph’s Grocery and Delicatessen in October 1980. It was certainly never disputed that Claude Shaffer was shot and killed during that robbery.

The prosecutorial theory at the time was that both robbers fled the store but that Williams returned and fired the fatal bullet that severed Shaffer’s aorta as he crouched down for safety behind the store counter.

Williams confessed that he was the triggerman who fired fatal bullet that killed Shaffer. He was tried, convicted, and sentenced to death as the triggerman in the robbery/murder. He was executed in 1995.

Nichols was tried separately from Williams. The prosecution alleged that under Texas’ “law of parties” Nichols was just as culpable as Williams even though he had not fired the fatal shot. This rue of law allowed the jury to return a death penalty verdict against Nichols if it so desired.
While the jury was convinced that Nichols took part in the robbery, it could not reach of a verdict on the issue of punishment – life or death. A mistrial was declared.

The district attorney’s office decided to retry Nichols, but with a unique prosecutorial twist. At Nichols’ second trial the prosecution alleged that Williams lied when he confessed and that Nichols’ was the actual triggerman. The prosecution persuaded Nichols’ second jury to disregard Williams’ confession even though it had used that very confession to secure his 1995 execution..
The prosecutorial strategy employed at Nichols second trial was a significant departure from the traditional way the “law of parties” is applied. The prosecution’s demand for the death penalty against Williams was premised on the theory that he had been the actual shooter, and it underscored that theory with Williams’ own confession that he was the triggerman. The prosecution stood by that theory all the way through to Williams’ 1995 execution. The prosecution never once stated the official belief that the condemned man’s confession was a lie. The district attorney’s office tried, convicted, and executed Willie Ray Williams not as a “party” but as the “actual” killer of Claude Shaffer.

Nichols was still a “party” to the Shaffer killing at the time of Williams’ execution. The District Attorney’s first attempt to secure a death penalty verdict against him as a “party” was not unusual. Many defendants have been prosecuted (and convicted) as a “party” to a criminal act, even in situations where the State did not know who actually committed the act itself. That is the historical premise of the “law of parties” rule: to allow the State to proceed against all the parties in a capital offense no matter who fired the fatal shot. The primary issue in these kinds of cases is not “who” fired the fatal shot but that the fatal shot was fired, and anyone associated with that fatal shot is equally culpable of murder.

But in the Claude Shaffer murder case the prosecution knew who actually fired the fatal shot. Williams confessed to it. The district attorney’s office believed and accepted that confession as true and factual. That’s why it was stunning when the prosecution announced it would prosecute Nichols at his second trial as the “actual” triggerman in the Schaffer killing regardless of the Williams’ confession. It marked the first time that a State would try, convict, and secure a death penalty verdict on two criminal defendants at separate trials with the same theory that each had fired the single fatal shot that killed the victim.

It was a callous, and dangerous, prosecutorial decision. It unmistakably undermined the historical jurisprudence evolved under the law of parties rule - a rule that has served the adversarial fact-finding process of the legal system in a rational way for decades.

Defended its prosecutorial actions in accused killer’s second prosecution by pointing out that the Texas appeals courts upheld his conviction. But that does not offer much comfort to those who favor a fair, equitable, and consistent application of the law. These are same appellate courts who upheld the capital conviction of a defendant whose attorney slept through critical portions of the trial; who upheld criminal convictions obtained in Tarrant County in which scores of defendants were later exonerated through DNA evidence; and who have been instructed on many occasions by the United States Supreme Court about what the Constitution allows and does not allow in capital cases. The legal reputation of the Texas courts of appeals is about as stellar as Mike Tyson on fight night, especially when it comes to deciding capital cases.

But even more troubling are the ethical implications involved in the District Attorney’s decision to manipulate Williams’ confession. Before that confession could be introduced into evidence at Williams’ trial, the prosecution had to establish its voluntariness. Put simply, the prosecution had to show that the confession was freely and voluntarily given, without any coercion, to law enforcement authorities. The District Attorney’s office effectively vouched for the confession’s reliability when the prosecution introduced it into evidence in a court of law during Williams’ trial. With the use of that confession, the District Attorney effectively told the jury: “This is what happened. Willie Ray Williams killed Claude Shaffer. How do we know that? Because he told us he did it with his confession.”

The District Attorney’s office then elected to “recant” the reliability of that confession before Nichols’ second jury. That decision begs scrutiny - if not ethical then certainly moral scrutiny. A confession cannot be reliable at one criminal trial but unreliable at another, especially when it concerns the same criminal act that puts human life at risk.

The Nichols case was about so much more than the media-driven “two triggermen, one bullet” scenario. It was about a decision by the Harris County District Attorney’s Office to send one man to gallows on the basis of a reliable confession and then unethically undermining that confession’s reliability in order to send yet another man to the same gallows for the same criminal act. That prosecutorial decision offends the very notion of fundamental due process fairness held sacred in our constitutional system of government.

Beyond its legal travesty, the Joseph Nichols execution was also a social and moral tragedy. The organized religious community in Harris County did not have the moral courage to take a public stance against that execution. This was not a death penalty case in which the usual “pro and con” arguments about capital punishment were cast into the arena of social debate. The Nichols case was about a social obligation and moral duty owed to the community by its religious leaders to step forward and condemn the District Attorney’s total disregard of the rule of law.

The local Catholic Bishop was silent. The Bishops Council of the Catholic Church a decade ago condemned the death penalty. In fact, the Catholic Church vigorously opposed the December 2006 execution of Sadamn Hussein. How could the Catholic Diocese of Houston possibly justify its deafening silence about the Nichols’ execution when the Pope condemned Saddam’s execution?

The African-American Christian clergy was also silent. Its leaders have been quick to provide local evening news sound bites opposing the use of taser guns or the persistent use of lethal force by local law enforcement agencies, but they did offer much protest about the Nichols execution. The Sunday morning preachers didn’t ask their congregations to take a moral stance against that execution?

The issue was not whether Joseph Nichols deserved to live or die. The issue was whether the rule of law – the spirit and intent of the law of parties rule – should have been respected and honored. The integrity of that issue eclipsed any single execution.

The execution of Joseph Nichols exemplifies just how callous the death machine of the State of Texas has become. Through its executions of inmates whose cases raised highly probable claims of innocence, deplorable instances of ineffective assistance of counsel, and proven examples of egregious prosecutorial misconduct, the state’s death machine has relentlessly marched forward in its determination to be the death penalty capital of the United States.
That is an honored, cherished reputation by most citizens in Texas.

Written by Billy Wayne Sinclair

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