Convict's odds today may rest on gibberish

Web Posted: 08/24/2006 12:19 AM CDT

Maro Robbins
Express-News Staff Writer
Texas is scheduled to execute a convict today whose lawyer filed an appeal with incoherent repetitions, rambling arguments and language clearly lifted from one of his previous cases, so that at one point it described the wrong crime.

While inmate Justin Chaz Fuller's last hope for a temporary reprieve now waits on the U.S. Supreme Court and the governor, his case is being cited as an example of the state's failure to adequately examine death penalty convictions.

The same lawyer, in another pending capital case, apparently copied his client's letters so that, instead of citing legal cases, the filed documents echo the inmate's unintelligible arguments, flawed grammar and even his complaint that he was about to run out of paper.

For his work in these two appeals, the state paid the attorney Toby C. Wilkinson of Greenville about $18,000 in each case, for a total of $36,514. Wilkinson did not return repeated calls.

State law requires that death row inmates receive "competent counsel" for their post-conviction challenges known as applications for writ of habeas corpus. In May 2001, the state's highest criminal court tapped Wilkinson to work for Fuller, a Dallas native convicted of killing a 21-year-old man, Donald Whittington III.

At first glance, Wilkinson's 111-page motion appears unremarkable. But by Page 3, it starts quoting long passages from trial testimony without clearly explaining their relevance. Page 5 spends half a page repeating the exact passages quoted a page earlier. A similar repetition follows on Page 6.

The numbering of arguments doesn't maintain a logical sequence. Typos obscure some quotes, as in, "i &tilde hus, we diseeni no ab &tilde tse of discretion in th i &tilde coult &tilde s denial."

Perhaps most striking, the pleadings for Fuller copied wording from an appeal Wilkinson filed for a different client, Henry Earl Dunn, in an unrelated case. As a result, it complains about testing for blood on a gun used by Dunn's co-defendant seven years earlier.

Wilkinson's brief "should have been submitted on a Big Chief Tablet using an eight-count box of Crayolas," Don Bailey, the lawyer who replaced Wilkinson when Fuller's appeal was denied, wrote in a subsequent appeal.

Since then, Bailey has argued unsuccessfully that Fuller did not shoot Whittington in 1997 and should have received at most a life sentence like his co-defendants.

Edward Marty, formerly an assistant district attorney in Smith County, said he recalled being disturbed by the quality of the legal brief and taking his concern to the trial judge.

Any confusion in Wilkinson's pleadings was remedied at a subsequent hearing, said Marty, now general counsel for the Texas Court of Criminal Appeals.

"He was then given an opportunity at a ... hearing to make up any differences and clear up any thing he wanted to," said Marty, whose office conducts preliminary reviews of most death penalty appeals. Since he left the DA's office, he has not been involved in Fuller's case.

About three years after filing Fuller's claim, Wilkinson was chosen by a Hopkins County district judge to file a similar habeas petition on behalf of Daniel Clate Acker.

Wilkinson's legal brief spends 13 pages naming seemingly every document filed in the case. It then makes five claims that are almost word-for-word identical to claims in Fuller's case. The next 24 pages seem copied from his client's letters, so that they seldom if ever cite case law and occasionally lapse into first-person narrative.

Claim No. 36 concludes: "I'm just about out of carbon paper so before I run out I want to try and list everything that was added to and took from me to convict me on the next page then as soon as I get some more typing supplies I have about thirty more errors I want to tell you about and have brought up in my appeal."

Acker's appeal is still pending. Braced for rejection, the inmate apparently sought a California lawyer to represent him when the case moves to federal court.

"It's like nothing I've ever seen before," the attorney, A. Richard Ellis of Mill Valley, Calif., said of the petition filed by Wilkinson.

The court of criminal appeals decides which lawyers can handle death penalty appeals. Presiding Judge Sharon Keller said she couldn't comment on individual cases, but the court's staff carefully screens attorneys. Then it relies on trial judges to appoint tried-and-tested counsel.

"If we thought somebody should be taken off the list because he's not doing a good job, we'd take him off the list," she said, "or we'd consider taking him off the list."

Wilkinson isn't known to have been given any more death penalty work since 2003, but his name is still on the list. And though the count might shrink by day's end, six of his clients are still on death row.

Toby C. "Big Chief" Wilkinson

Sorry Greg, but you are dating yourself.

The Big Chief tablet was for many years the most popular brand of paper writing tablet among school children and hopeful novelists in the United States and exemplified the lined writing tablet as a communications medium. The tablet featured a native American with full headdress on the cover. The Big Chief Writing Tablet copyright was originally held by William Albrecht at the Western Tablet Company in St. Joseph, Missouri, and was later sold to the Mead Corporation, which also manufactured a Son of Big Chief tablet.

On January 5, 2001, the Everett Pad and Paper purchased the latest makers of the tablet, Springfield Tablet, and closed the plant after 80 years. At present, the Big Chief tablet is no longer being made.

Since so many pay attention to this forum, perhaps the Big Chief will indeed be "taken off the list."

East Texas killer executed

Tyler man convicted in case that prompted law.

By Michael Graczyk
ASSOCIATED PRESS
Friday, August 25, 2006

HUNTSVILLE � Condemned prisoner Justin Fuller quietly went to his death Thursday evening for the abduction, robbery and fatal shooting of a Tyler man nine years ago.

In a brief statement, Fuller thanked his family and friends for their support.

"Let everyone know that you must stay strong for each other," he said. "Take care of yourselves."

He told the warden standing next to him, "That's it."

As the lethal drugs began to take effect, he looked at his parents watching through a window a few feet away and said, "I love you."

The parents and a sister of his victim watched through an adjacent window, but he didn't acknowledge them.

Eight minutes later, at 6:18 p.m., he was pronounced dead.

Fuller acknowledged being nearby when 21-year-old Donald Whittington was killed at Lake Tyler on April 21, 1997, but he said he didn't fire the fatal shots.

Whittington's remains weren't discovered by police until four days after he went missing. Authorities said by then numerous people had seen the body, which was a topic of conversation at Chapel Hill High School near Tyler. A student at the school, which Whittington, Fuller and two others convicted in the slaying had attended, overheard some of the talk and called police.

The case inspired passage of a state law making it a crime to know about a body and remain silent about it.

The U.S. Supreme Court rejected Fuller's appeals hours before the execution. Fuller's lawyers alleged his attorneys were ineffective and failed to tell him about a proposed plea bargain that would have blocked a death sentence.

Samhermundre Wideman of Tyler and Elaine Hays of Red Springs are serving life sentences for their roles. Brent Chandler accepted 25 years and testified against Fuller.

Prosecutors said the robbery plot was hatched by Hays, Wideman's girlfriend, who believed Whittington had received $15,000 from a trust fund when he turned 21.

Fuller said they went to Whittington's home to retrieve rings Hays gave him in exchange for some cash. Whittington was sprayed with a tear gas, blindfolded and bound, and threatened with death if he didn't give up his ATM card and password. Chandler took clothing and items from the apartment and the other assailants threw Whittington in the back seat of his own car, drove to a bank and withdrew about $300, then went to the lake area where Whittington was killed.

Fuller told police he was urinating in the lake at the time of the shooting. His companions disputed his story.

"They said I was the triggerman," said Fuller, who blamed Wideman for the shooting. Whittington's ATM card was found in Fuller's wallet.

Fuller, whose 28th birthday would have been next week, was the 19th inmate executed this year in Texas, matching the total executions in the state for all of 2005.