Death penalty winds shifting on high court

Web Posted: 06/16/2007 11:03 PM CDT

Maro Robbins
Express-News
Seldom do judges on Texas' top criminal court side with death row inmates, but last month they did so twice.
And last week they did it twice again, this time in decisions issued only a day apart.

Sparing a mother who smothered her infant and delaying the executions of three other convicts, including a San Antonio kidnapper, the rulings aroused speculation that something new might be afoot at the Texas Court of Criminal Appeals.

"The last few weeks have been striking," said Jordan Steiker, co-director of the Capital Punishment Center at the University of Texas School of Law.

The court's willingness to reconsider so many death sentences in such a short span is, some believe, a direct response to the exacting scrutiny and repeated criticisms that the U.S. Supreme Court has aimed at Texas' handling of capital cases.

The high court in recent years has overturned several Texas death penalties and, in the term alone, the justices have ruled in favor of three inmates condemned by the state.

On the heels of those criticisms from Washington, the Texas court has in at least one way clearly followed the Supreme Court's example.

Its recent flurry of decisions halting executions or overturning death sentences all rested on the narrowest majority of five judges ? the same slim margin that typically settles death penalty questions at the high court.

That was the decisive margin in April when the justices in Washington found that the Texas court had repeatedly ignored flaws in the sentencing instructions that once guided juries in capital cases.

About two weeks later, with his execution only days away, the case of Jose Angel Moreno, a kidnapper who murdered a San Antonio college student, reached the court in Austin.

He too complained about faulty jury instructions, but the judges in Austin already had rejected this argument years earlier. At first, the court said it couldn't reconsider his case.

Then, a day later, hours before the execution, five judges agreed to delay Moreno's death so that they could revisit his case in light of the newest Supreme Court decision.

Additional rulings favoring death row inmates piled up in the weeks that followed. Though the prisoners raised different legal questions, they all won support of the same five judges.

Rethinking vs. yielding


Death penalty opponents like Steiker praised the majority for seriously weighing the issues rather than simply searching for ways to endorse the inmates' executions.
Others worried that the judges had surrendered to political expediency.

"One could wonder if they're now trying to err on the side of more liberal rulings to avoid Supreme Court review," said John Bradley, Williamson County district attorney.

Weeks after Moreno was returned to his cell to await further review, the court turned its attention to Kenisha Berry, a mother who smothered her 4-day-old infant, disposed of his body in a trash bin and then, five years later, abandoned another newborn in a ditch.

Concluding that Berry posed a danger only to her own children, the majority found that prosecutors failed to prove that execution ? rather than life imprisonment ? was necessary to neutralize her threat.

Then, on Monday, the judges again confronted an infant's death in the case of Cathy Lynn Henderson, a babysitter convicted of murdering a child in her care.

This time, the rhetoric boiled when the majority stopped Henderson's execution and ordered a trial court to consider new evidence that the baby's death might have been accidental.

Judge Michael Keasler called the result "breathtaking" and, after denouncing his colleagues' analysis of the rules governing the reopening of old cases, added an attack on their previous decision to spare Berry.

"In Berry, and again today, I detect a tendency in the majority of this Court to minimize the culpability of criminals who victimize the most vulnerable of human beings ? our children," he wrote.

Others, such as the prosecutor Bradley, wondered if the rulings favoring Berry and Henderson rested less on the victims' youth than on the inmates' sex.

Executions of women have drawn extensive attention from both courts and the public, though Texas has put three females to death since the state resumed capital punishment in 1982.

Apparently undeterred by Keasler's rebuke, the judges just two days later ordered a new sentencing for Irving Alan Davis, an El Paso rapist. It found the trial judge had unfairly allowed the state's expert ? but not the defense's witnesses ? to address the life-or-death question of whether Davis would be dangerous in the future.

As in the other rulings, Judges Paul Womack, Tom Price, Cheryl Johnson, Charles Holcomb and Cathy Cochran formed the majority while their colleagues Keasler, Sharon Keller, Barbara Hervey and Lawrence Meyers dissented.

Cochran, a former prosecutor, defense lawyer and law professor, described the string of inmate victories as a fluke ? a coincidental cluster of four cases that warranted closer examination.

The judge said she hadn't changed her mind about the death penalty and hadn't voted with the majority because of a change of heart.

Limited by rules against discussing the court's internal deliberations, Cochran was however quick to acknowledge the obvious influence from Washington.

"I follow the law as the Supreme Court gives it," she said. "And I always try to do that when the Supreme Court speaks, no matter who it favors."

[This message was edited by JB on 06-17-07 at .]

[So, would Richardson have been better off if she had just killed several of her own infant children?]

Tarrant County woman on death row loses appeal
05:05 PM CST on Wednesday, January 23, 2008

Associated Press
AUSTIN - Condemned killer Chelsea Lea Richardson, one of nine women on death row in Texas, lost the appeal of her conviction before the Texas Court of Criminal Appeals on Wednesday.

Richardson, 23, was 19 when authorities said she helped kill her boyfriend's parents in 2003 so he could inherit a $1.65 million estate. Her boyfriend, Andrew Wamsley, was convicted of capital murder and sentenced to life in prison.

Court documents show the plotters hoped to divide the estate Wamsley would inherit. They contrived several plans, including one that would have balloons with caustic chemicals in the gasoline tank of the couple's vehicle so it would explode, and bungled two murder attempts. On their third attempt, they fatally shot and stabbed Rick and Suzanna Wamsley in a bloody attack.

Susana Toledano, another co-defendant, testified that Richardson told her to kill the couple in their home in Mansfield so they could share in the estate. Toledano, 20, pleaded guilty to a murder charge.

A jury deliberated for just more than two hours before deciding Richardson should die, making her the first woman in Tarrant County to received a death sentence.

Richardson's appeal challenged whether evidence was sufficient to support the conviction.

"In the light most favorable to the verdict, the testimony and evidence at trial showed that Richardson participated in the planning of the murders, aided in the two failed attempts to murder the Wamsleys, and was present during, encouraged, and participated in the final attempt during which the Wamsleys were killed," Judge Michael Keasler wrote in a unanimous ruling.

D.A. won't seek death penalty in Baby Grace case

By HARVEY RICE
Copyright 2008 Houston Chronicle

Galveston County prosecutors said today they will not seek the death penalty against the mother and stepfather of Riley Ann Sawyers, who was known as Baby Grace until her identity was confirmed.

Galveston County District Attorney Kurt Sistrunk said he decided against seeking the death penalty in the Nov. 3 trial of Royce Clyde Zeigler II, 25, of Spring.

Sistrunk announced his decision in a pre-trial hearing for Zeigler before state District Judge David Garner.

He said he also would not seek the death penalty for Zeigler's wife, Kimberly Ann Trenor, 19, whose trial date is expected to be announced at a hearing Thursday.

Saying he was prepared for a backlash from those appalled by the brutality of the crime, Sistrunk said he was abiding by a 2007 Texas Court of Criminal Appeals ruling that would make it nearly impossible to obtain a death penalty decision that would withstand appeal

The ruling concerned a special question required by law that a jury must answer to arrive at a death penalty decision: will the accused be a future danger to society?

The appeals court ruled in the case of Kenisha Eronda Berry of Beaumont, convicted in the death of her infant son, Malachi, that the slaying of her child was insufficient to prove that she would be a future danger to society.


Details.

Pregnancy of Baby Grace's mom decided trial date, judge says

By HARVEY RICE
Copyright 2008 Houston Chronicle

GALVESTON � The pregnancy of a woman jailed along with her husband in the slaying of her 3-year-old daughter was the deciding factor in setting their capital murder trial date, a judge said today.

State District Judge David Garner told Kimberly Dawn Trenor, 19, of Spring that he set a Nov. 3 trial date Wednesday during a pre-trial hearing for her husband to ensure that she has time to give birth.

"The court is inclined to let you proceed to have your child and recover from your delivery," Garner said.

Trenor, clad in green jail garb, sat next to her attorney, Tommy Stickler. She nervously looked over her shoulder, causing the bailiff to order her to turn around, and occasionally bit her lip. She answered, "No," when the judge asked if she had any questions.

Trenor and her husband, Royce Clyde Zeigler II, 25, are accused in the July 25 slaying of 2-year-old Riley Ann Sawyers in their Spring home.

Trenor has said that she and Zeigler beat Riley with a belt, held her head under bath water, pushed her face into a pillow and couch and that Zeigler hurled her onto a tile floor.

[Hmm, wonder if the CCA thought about a female capital murderer getting pregnant in prison and then killing the fetus?]

For another take on what's wrong with the Berry case (a rare misstep by Judge Cochran that, we hope, will be corrected), read this blog.

It's been about a year and a half since Berry and this discussion. So now that we've had time to absorb it all, I'm curious what y'all think Berry really means.

Is the Court saying that a parent who kills his or her own child, absent other acts of criminal violence against some other class of person, is per se not a future danger? Is the death penalty, for all intents and purposes, off the table now for child death cases where the perpetrator doesn't have a criminal history?

Since Berry, has anyone gone ahead and sought the death penalty on such a parent?

How do 5 judges have the sole right to interpret future dangerousness under those circumstances? Isn't that the job of a jury? Some cases cause a court to drop in the public's view because the conclusion is too far afield from common sense. Berry is such a case and likely will be ignored.

What will happen is that the next court to look at the issue will find some factual distinction to justify overlooking the Berry conclusion. But, the truth is that the Berry conclusion does not stand the test of common sense.

If you tell any person that two individuals were intentionally killed on separate occasions by the same defendant, that would likely be enough in any case to justify an inference of future dangerousness. Identifying the two individuals as children or infants, in the eyes of most citizens, would strengthen the inference. Only a judge could find a way to say that, as a matter of law, the identification of the victims as children could ONLY justify an inference that the defendant is not a future danger in prison.

While that may be one inference, it should not be the only inference a jury could draw. How in the world does a judge claim such a foolproof knowledge of the human mind and condition, surpassing the knowledge of any rational juror, in intepreting those facts?

But, as I say, there is not likely to be another Berry case for comparison. So, the case is likely to just drift into disrepute.

Baby Grace mom's capital murder trial opens
'We need to break her,' she says husband told her before 2-year-old's fatal ordeal
By HARVEY RICE
Copyright 2009 Houston Chronicle

GALVESTON � Two-year-old Riley Ann Sawyers� stepfather beat her naked body so hard and so often with a belt during a daylong discipline session, he complained of a sore shoulder, according to an interrogation tape shown to jurors today as the capital murder trial of the girl�s mother got under way.

* * * * *

District Attorney Kurt Sistrunk announced last spring that he also will not seek a death sentence against Zeigler, who will be tried separately. District Attorney Kurt Sistrunk announced last spring that he also will not seek a death sentence against Zeigler, who will be tried separately. He said a 2007 ruling by the Texas Court of Criminal Appeals made it impossible for him to obtain a death sentence that would withstand appeal.

Here's the rest of the tragic story.

That's right Berry v. State, he's looking at you.

The CCA began its retreat from the nonsense in Berry. To read the latest, click here.

The CCA goes back to a common sense approach by saying the jury must decide whether a defendant is a future danger "whether in or out of prison."

The CCA continues to dismantle Berry with a majority and two concurring opinions in yet another case involving a mom killing her own children. See if you are convinced by Cochran's concurring opinion, in which she attempts to distinguish her earlier Berry opinion. Concurring opinion.

But, the better explanation is found in Presiding Judge Keller's concurring opinion.

[This message was edited by JB on 09-14-11 at .]