Has anyone run across Larry Fitzgerald of Austin as an expert witness? He retired last year as the public information officer of TDCJ-ID. He's testifying in the punishment phase of a capital murder DP case that starts next week.

If so, please call me at (512) 854-4472 or email allison.wetzel@co.travis.tx.us.

He watched Royce Smithey testify and agreed with everything he said, but said TDCJ-ID is a lot safer than Royce described. In fact, he believes it's safer to be in prison than at an ATM machine on the streets of Austin.

He says they have a zero tolerance policy towards violence. And he didn't know how many assaults or murders occur in prison.

He reviewed D's prison records and said his few number of disciplinary violations showed he could get along in prison without being violent.

Call me for the scoop on him. He has now testified in 2 cap murder trials in our county.

That observation by Fitzgerald about it being safer to go to prison than to visit an ATM machine in Austin is quite interesting.

Let's see: In 2003 (that would be something like the twelve months prior to this past January) there were 4,959 prison disciplinary convictions for assaults by inmates on correctional officers in Texas. During that same 12 months there were 15,496 disciplinary convictions for assaults by inmates on other inmates in Texas. Now, it's true that a convict can "catch" a disciplinary case for throwing a food tray at a guard, and such behavior might not rise to the level of a freeworld felony assault, but I believe a major point that jurors should consider (of course I'm only a cop and not a retired public information officer) is that each of those 20,455 assaults occurred inside fenced, barred, walled prison units. Each unit was staffed 24 hours a day with guards responsible for maintaining the safety and security of the institution. The perpetrators of each of those assaults were convicted felons, sent to prison to pay for crimes and submit to the rules and policies of the Texas prison system (and even obey the provisions of the penal code, just like I have to do). It seems to me like 20,455 instances of assaults in such a restrictive, secure, sterile environment might be about 20,454 too many.

I guess if I were a juror, I would have been interested in hearing Larry Fitzgerald's response to: How many assaults occurred at ATMs in Austin in 2003? Or, how many prison guards had their throats cut by convicted felons at the Pulse machine? Or, how many people were stabbed, raped, beaten, chunked-on, extorted from, threatened with their own death or the murder of a family member (I have to stop, I'm getting angry) at the Woodforest Bank's ATM in the Wal Mart?

I also wonder how a person who is retired (assuming that means he no longer works within the system) has any first-hand, personal knowledge of the Texas prison system. If he doesn't work there today, the only information he can have must come from other sources, much like what they mean by "hearsay," I imagine.

BTW the numbers mentioned above come from Serious Incidents, prepared by TDCJ-ID Executive Services, the February 2004 edition.

Ex-prison spokesman's job now rests with defense
By STEVE McVICKER
Copyright 2004 Houston Chronicle
For Larry Fitzgerald, at least, there is life after death row.

Fitzgerald, for 8 1/2 years a droll, affable spokesman for the state prison system, witnessed more than 200 executions in the nation's busiest death chamber and answered countless questions from the local, state and national -- even international -- media. He did it with a sense of humor and a reputation for plain-spoken honesty.

Then in August, he retired from the Texas Department of Criminal Justice. He left his part-time home in Huntsville and returned to Austin to enjoy the rejuvenating waters of Barton Springs and the comfort of his other favorite haunts.

But Fitzgerald, 66, is still answering questions about death row. Now they come from defense attorneys who pay him $250 an hour to consult with them about prison life and death and provide expert testimony during capital murder trials.

"There is a certain irony there," he said Wednesday.

The role reversal began last summer when Fitzgerald readily took the state of Texas up on an early retirement offer. Later, he signed a deal with the state to work on a contract basis as media handler in the event of major disaster such as a hurricane.

But hiring on to work as part of a criminal defense team was not in Fitzgerald's plans until he received a call last fall from Houston attorney Tom Moran. A former Houston Chronicle reporter, Moran was representing convicted killer Eugene Broxton in his capital murder retrial here. (The original conviction was overturned because of controversial expert testimony about how a person's race can influence their potential to be dangerous.)

Simply put, Fitzgerald's job is to explain to juries why the defendant would not be a risk to kill someone else if sentenced to life in prison instead of death by injection.

Emphasizing that he is not qualified to talk about whether Broxton -- or any other defendant -- would be a danger to other inmates or prison personnel, Fitzgerald says he can talk with confidence about how the prisons' security systems make it unlikely any prisoner would have the opportunity to kill again.

"So I basically tell the jury the same stuff about the prison system that I used to tell the media -- except now I do it under oath," said Fitzgerald, who was known among reporters as a straight shooter. "And I don't criticize the prison system. In fact, I tell that it works. And I can back it up with statistics."

The statistics show that in 1984 and 1985, for example, there were 25 and 27 homicides, respectively, within the state prison walls. But since 1986, even as the prison population has grown significantly, the homicide figures have consistently been in the single digits (except for 1997 when there were 10) -- a fact that Fitzgerald attributes to Texas' controversial policy of keeping troublesome inmates in solitary confinement.

In Broxton's case, Fitzgerald's testimony did not convince the Harris County jury, and the killer was again sentenced to death.

Nevertheless, Fitzgerald's availability began to circulate among defense attorneys. In February, he was hired to testify in Travis County during the punishment phase of Patrick Anthony Russo's capital murder trial for the strangulation of an Austin woman. Defense attorney Steve Brittain says Fitzgerald's testimony played a large role in keeping Russo off death row.

" Larry gave (the jury) a clear indication how limited a person is in prison," said Brittain. "The jury was probably concerned about his possible contact with women -- nurses, female guards, librarians and administrators. Larry was able to paint a very accurate picture for us about how (prison security) knows where (inmates) are at all times.

"Larry is not an advocate. As a trial lawyer, I think in situations he could be equally valuable to the state depending on the kind of case they were trying. He's just as straight as he can possibly be. He answers the questions straight down the line. And that gives him a credibility that overall makes him extremely valuable in a case like this."

In March, Fitzgerald took the stand again in convicted killer Guy Allen's trial. This time, the Travis County jury that heard the case sentenced Allen to death. Fitzgerald has signed on to testify in a fourth capital murder trial next month in Palestine. So far, he says, the most surprising thing he has come across in his new role is the public's lack of knowledge about how prisons actually work.

"I find, generally, that most people don't have an inkling about what goes on in prison," he said. "There are a lot of myths about prison. Perhaps in Texas prisons the biggest myth is that they're air-conditioned. And they're not. And it gets pretty hot, especially in the summertime. And I tell people that, and they're just amazed."

Fitzgerald, who keeps his own counsel when it comes to whether he supports capital punishment, says that the TDCJ job could often be exciting -- especially when he was caught up in a media frenzy, such as the escape of the Texas Seven and the executions of Karla Faye Tucker and Gary Graham.



The 219 inmates he saw executed included some he had come to know while they were on death row, which forced him to keep his emotions and his professional responsibilities separate.

"You have to treat it like you would if you were a journalist," he said. "You see some pretty bad things as a journalist. But you try not to take it home with you."

And all things considered, he says, he's happier now and doesn't miss working for the prison system.

"I wouldn't say that it's matching wits with lawyers, but you do get asked the hard question. And you can't evade it," said Fitzgerald. "You've got to be truthful, and it makes for a good mental exercise."

I am shocked -- SHOCKED! -- that the Houston Chronicle didn't contact resident prison expert and affable and articulate pontificator A.P. Merillat to ask what he thinks about this turn of events.

Gee, Diane, why do you have to call me names? I'm not a pontificator -- I've never even been to the Vatican, but I do have many friends who are Catholic.

I'm thinking about selling myself to the defense, since it's so lucrative and you don't even have to know the real truth. Hold on a minute, he says, realizing what just came out of his mind and onto the keyboard, I...I...I need to go to confession for that brief loss of self-control. I repent.

Having seen A.P. testify on prison violence firsthand, and support his testimony with THE FACTS, I'll put my money on A.P in any "Merrilat vs. Fitzgerald" courtroom duel that may be looming on the horizon. Amazing though how many seemingly upright folks "retire" and then slip over to the "dark side" to achieve a healthy "supplement" to their pension. For shame.

Amen, Lee. My bet's on A.P. in that contest (and countless others). We need champions like A.P. who are in this for reasons that have nothing to do with money.

And for those who are unfamiliar with A.P.'s wonderful research into Texas death row and prison violence, see his "Future Danger" book. (Or call TDCAA if you need a copy.)

We have used AP & Royce Smithey both here in Collin County. They are both great witnesses on death penalty cases. They come prepared with their statistics (which are real)and evidentally the juries here like them also, as we have received the death penalty on each one they have testified in.