Pubdate: Wed, 27 Aug 2003
Source: Houston Chronicle (TX)
Copyright: 2003 Houston Chronicle Publishing Company Division, Hearst Newspaper
Contact:  http://www.chron.com/
Details: http://www.mapinc.org/media/198
Author: Rick Casey
Bookmark: http://www.mapinc.org/tulia.htm (Tulia, Texas)

TULIA 35 ESCAPE HIGH COURT HORROR

AMARILLO LAWYER Jeff Blackburn didn't ask Rick Perry to pardon the Tulia 
35, but he's delighted the governor did.

It means his clients, having been victimized by a bottom feeder of the 
Texas law enforcement establishment, wouldn't face being victimized by 
those at its top.

Most Texans, including Perry, are appalled at the fact that dozens of 
citizens were sent to prison based on little more than the testimony of an 
apparently lying undercover agent with a sleazy history.

But Blackburn was concerned that the Texas Court of Criminal Appeals, the 
state's highest court for criminal matters, does not reflect the 
tough-but-fair sensibilities of most Texans. And his cases were before that 
court when the pardons made his appeals moot.

He was worried the high court would find a way to uphold the convictions 
despite the fact that the undercover agent has been indicted for perjury in 
connection with his testimony.

"I won't speak with a flannel mouth," he said as he warmed to the topic of 
the Court of Criminal Appeals. "They're so far gone they're barely even a 
court anymore."

While his rhetoric may be stronger than that of most lawyers, his concerns 
aren't. Consider this brief compendium:

U.S. District Judge Orlando Garcia accused the court of "a cynical and 
reprehensible attempt to expedite (a defendant's) execution at the expense 
of all semblance of fairness and integrity."

It seems the high court, charged by the Legislature with hiring "competent 
counsel" in indigency cases for death penalty appeals, gave the defendant 
in question a lawyer with all of three years of experience who had never 
worked on a death penalty case.

The lawyer failed to follow the rules in filing appeals, and the court 
turned him down. When later lawyers tried to clean up the mess, the court 
said sorry, he had his chance.

U.S. District Judge Sam Sparks of Austin, ruling on another death penalty 
case, said the court's ruling was "wholly improper, lacked judicial 
integrity" and was based on a "specious theory."

The accused had shot his ex-girlfriend to death as she left work at a 
hospital, and loaded her body into his car. One bullet went through her 
skull, causing her to die within a maximum of five minutes, testified the 
medical examiner.

To warrant the death penalty, the murder had to be committed in the course 
of committing another crime. The court chose to define the loading of the 
woman into the car as kidnapping, a definition that required that she be 
alive at the time. The prosecutor disavowed this theory in his closing 
argument, but the court argued that the medical examiner "did not provide 
unequivocal evidence that the victim was dead at this time." So much for 
"beyond a reasonable doubt."

Then-Attorney General (now U.S. Senator) John Cornyn didn't lambast the 
Court of Criminal Appeals, but he took the rare step of choosing not to 
defend its position in a death penalty case before the U.S. Supreme Court. 
Instead he "confessed error."

In that case, the Court of Criminal Appeals upheld a death sentence despite 
the fact that an expert witness argued that the defendant, a native of 
Argentina, was a future danger to society partly because he was Hispanic 
and that ethnic group is found in prison in higher proportions than the 
population as a whole. It was a level of "science" that would have played 
well in Nazi Germany.

The Supreme Court ordered the Court of Criminal Appeals to reconsider in 
light of Cornyn's position that introducing race poisoned the jury's 
decision. The Texas court did reconsider.

It let the death penalty stand because the defendant's lawyer didn't raise 
the issue at trial. And it ruled that it was none of Cornyn's business. A 
federal judge has since ordered a new sentencing hearing for the defendant.

The U.S. Supreme Court has recently had to correct the Court of Criminal 
Appeals in two other matters that seem obvious to the rest of us.

One was that when a defendant's attorney sleeps through much of a death 
penalty trial, the defendant did not get adequate representation.

The other was that a prosecutor may not systematically exclude blacks from 
a jury because the defendant is black. (The Supreme Court had established 
that rule in 1986, but it felt the need earlier this year to remind the 
Texas court of it.)

Is it any wonder Blackburn is glad the cases of the Tulia defendants, most 
of whom are black, don't have to go before this court?
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