Articles Posted in Death Penalty & Postconviction Relief

Kudos to the people of Maryland for finally putting an end to state sanctioned homicide. All life is precious, including the lives of those who may not “deserve” to keep living. But, an interesting thing happened on the way to humanity. What is Maryland to do with its “inventory” of formerly suitable gurney candidates? A recent Wall Street Journal article notes that the state is giving a permanent stay-of-execution to the condemned, a welcome Christmas present. It notes that only 35 people were executed in America in 2014, and only seven states joined in the historical passtime. A tip of the hat to outgoing governor Martin O’Malley, who said that executing Maryland’s final four death row inmates “does not serve the public good of the people of Maryland.”

And since I practice in Sherman I have to mention the favorite statute of a great murder prosecutor, Grayson County’s own Kerye Ashmore. Texas Penal Code section 6.04(b), the law of “transferred intent”, states that “A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that: (1) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected.” This allows a murder conviction theory, in a shooting case in which a person shoots into a car or crowd and hits a person he was not intending to shoot, in its most simplistic form. It could also cover an arson case in which a homeless person dies when a structure believed to be empty is burned down by the actor, causing the homeless person’s death.

The sudden passion defense is outlined in Texas Penal Code section 19.02(d): “(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.” For whatever reason, in paragraph (a) of the same section two key terms of section (d) are defined: “(1) ‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.(2) ‘Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.” Thus, it cannot be a previous provocation of the individual killed that causes the sudden passion. It has to be in the moment, and something that would make someone of “ordinary temper” incapable of reflecting cooly. Traditionally, this is the spouse that walks in on their spouse in the act of adultery, but it is not limited to this.

When I was in law school in Houston, a well known dentist raised this defense to the murder of her husband, whom she found not in the act of adultery but leaving the hotel with his mistress. The jury stated that her lack of sudden passion was evident in the fact that she backed up over her husband to make sure she killed him, after first running him over with her car.

As for the law of parties, Texas Penal Code 7.02 outlines Texas criminal responsibility: “(a) A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. (b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.” Section (a)(2) is the normal theory of joint criminal responsibility – aiding, encouraging, soliciting – called “law of parties” that is presented to a jury to make a non-triggerman in a case such as a robbery or burglary gone bad liable for the murder by an accomplice to the underlying felony.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

The third definition is the Texas codification of the traditional common law concept of “felony murder.” It is unclear why the second and third definition were needed, as they are very similar and intending to cause serious bodily injury is usually felony aggravated assault. The legislature must have wanted to make sure it covered every ground, especially when seats on death row could be at stake. Nevertheless, the third definition requires that a person be committing any felony, from first degree drug distribution to state jail forgery of a financial instrument (such as a check), yes any felony qualifies. At common law, the felony murder rule, as it was harsh, was often limited to felonies “a fortiorti”, i.e. serious felonies such as robbery, arson, burglary and others clearly dangerous to human life. One of the harsh consequences of felony murder is that, under liability as a party to a crime, it often can be charged to any participant in the underlying felony, making one who had no intent of hurting or killing anyone criminally liable for acts of another that resulted in murder. The typical situation is a “robbery gone bad” in which one robber of three shoots the store clerk. All three are on the hook for capital murder. But, felony murder is now also used in DWI cases, in which the felony of DWI3rd is being committed by the driver who has been twice previously convicted, as they are also committing an act dangerous to human life, driving intoxicated, during the commission of the underlying felony of DWI3rd.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

Texas Penal Code 6.03 provides us with handy definitions of the intentional and knowing mental states: “(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Murder is a result oriented offense, i.e. intentionally resulting in death, so at a minimum under the first definition it must be proven that the actor was aware that his action was reasonably certain to cause death. That is the minimum proof required.

But, that is not the only way to prove murder. The second definition is much like the first, but that the person intended to cause serious bodily injury (such as shooting or stabbing a person) and performed an act clearly dangerous to human life (such as shooting or stabbing a person, giving them a deadly drug, pouring acid on them, etc.).

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

Criminal news in Texas seems to revolve around murder. Once a week we pick up the newspaper and someone has shot or stabbed somebody for something. Murder as an offense tends to be “complicated” legally because of the many defenses, beginning with the required mental states and running the gauntlet down to what Percy Foreman called “misdemeanor murder” — the jury lets the defendant go because the sumbitch that died “deserved it.” Texas also recognizes “sudden passion” where in the old days murder was reduced from a capital punishment or life-in-prison-potential to simple “involuntary manslaughter.” A husband was understandably out of his mind when he caught his wife in bed with the milkman, shot one or both of them, but shouldn’t be guilty of “murder.” “Sudden passion” still exists, but now as a punishment mitigation issue which reduces the punishment range for murder to the standard manslaughter level.

Texas Penal Code 19.02(b) defines murder in three ways: “A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” The first is the modern equivalent of the common law definition of murder as causing the death of a person with malice aforethought. Malice does not necessarily have to be so aforethought anymore, but you still have to intentionally or knowingly cause the death of an individual. Thus, even pointing a gun and shooting someone is not enough under this definition, if it wasn’t proved to have been done with the intent or knowledge that it would cause the individual’s death.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

In 1991, thirteen years after his original conviction and death sentence, the Supreme Court reversed his conviction due to illegal psychiatric testimony. Although a blatant violation of the right to remain silent and the right to counsel, the prosecution arranged for Mr. Cook to be interviewed by a State psychiatrist in the months following his arrest, the idea being that this psychiatrist would come in and testify that Mr. Cook was a continuing danger to society and needed to die. The second trial resulted in a hung jury. The prosecution tried Mr. Cook a third time and received a second death sentence in 1994, but this conviction was overturned in 1997.

In 1999, DNA from semen found on the victim’s clothing completely eliminated Mr. Cook as a possible assailant. Rather than admit their wrongs and dismiss the case in the interest of justice, prosecutors required Mr. Cook to plead “no contest” to the killing, which he did to get out of prison and avoid another trial. He is currently seeking a pardon from the State of Texas, which he certainly deserves. Above being innocent, Mr. Cook endured three trials, abhorrent prosecutorial misconduct, twenty odd years on death row and once coming within 11 days of execution. Justice and prosecution politics generally do not mix well together.

The case of State of Texas v. Kerry Max Cook, the twenty year series of trials and appeals in which the State of Texas through the Smith County District Attorney’s Office (Tyler, TX), continually lied, knowingly presented perjured evidence, and did everything evil that rogue prosecutors are able to do, is a tale of one brave individual who survived it all and lives to tell about it today. Tried in 1978 and convicted on the false testimony of a jailhouse snitch, whose motive for testifying – a 2 year sentence in his own murder case – was withheld from the defense, who was personally coached by the prosecution into testifying to a detailed false confession, together with a false opinion of a state “expert” who claimed to be able to judge the age of fingerprints on a door, and the hiding of evidence by the prosecution of exculpatory evidence including evidence that Kerry Cook had been invited to the victim’s apartment three days earlier (which explained his fingerprints), were all part of an evil recipe to convict and kill a young boy for the sake of prosecution politics and statistics. Justice be damned.

I wish I could tell you the entire story, but instead I encourage you to read the story of Mr. Cook as only he can tell it, in his book Chasing Justice. It details the investigation and defense of his case, and the sordid details of life on death row as a young boy from East Texas. Mr. Cook vividly details being sexually assaulted in prison and life in Texas prisons in the late 70s and 80s. His appeal sat on the dockets of the Texas Court of Criminal Appeals (where death penalty appeals are directly sent to speed up the killing process), for eight years. Yes, eight years went by before his first appeal could be heard and he could proceed to the United States Supreme Court. Although the Dallas Morning News and other investigative journalists tracked down the “jailhouse snitch,” who admitted that his testimony was a total fabrication.

“Is your commitment to life as deep as your commitment to the truth?” This is the question I was forced to ask myself this past week as I worked through an exercise at the 2011 Death Penalty Seminar at Gerry Spence’s Trial Lawyers College. Truth and life seem to be pretty equally essential values, in my opinion, but as trial lawyers our commitment to the truth must be unquestionable – lest our case be exposed as unbelievable or even contrived. The credibility of our cases as criminal defense lawyers is the key ingredient for success, so we go overboard to sift through the evidence to find the emotional and physical truth of each case. We spend long hours with our clients to truly know and love them and as individuals. Must we also abhor the death penalty and all its inconsistencies and injustices so recently exposed?

A capital lawyer has the unique burden and duty to show that a defendant’s life is worth saving in every case. Period. The high-profile cases overturned in recently years are typically due to the capital defendant’s lawyer not doing the legwork (even basic legwork such as looking at readily available files), in order to tell the true story of how their client went from being a precious baby to becoming “the defendant.” What can cause such an injustice except for the lawyer not caring about his client’s life enough? If the image of him being strapped to the gurney and three doses of lethal drugs being injected into his veins (one to knock him out, one to stop the air, and one to stop the breathing), does not make you lose sleep at night and feel overburdened, one should probably not be doing capital defense. But must one be opposed to the death penalty in every case, or just in their own cases? Such are the deep questions that can only be answered in the heart.

How else are we to overcome some of the most gruesome facts to show that life in prison is a real punishment – even for the most unspeakable crimes? How can we truly connect with the client who committed such acts, and form a working relationship in order to fight through to a not guilty or a life sentence. The condemned are often persons for whom their lawyers made virtually no effort to connect with as individuals at any emotional level. If so, how could their story really be told to a jury of twelve people who stated they could impose the death penalty? And if their lawyer supports the death penalty, how can that lawyer fight his hardest against an institution and a result for which he supports in theory?