Chicago Tribune

Tribune Staff Writers

Second of two parts.

AUSTIN, Texas—By the time the Court of Criminal Appeals of Texas ruled on Cesar Fierro’s request for a new trial in 1996, it was clear his confession had been obtained under disturbing circumstances.

Nearly everyone involved with the case had come to agree that Fierro confessed to the murder of an El Paso taxi driver only after police across the border in Juarez, Mexico, raided his parents’ house, held them captive and threatened to torture his stepfather with electrical current from a generator attached to his genitals.

The prosecutor who put Fierro on Death Row now believes that. So does the local district court judge who reviewed how the confession was obtained. He recommended that Fierro get a new trial.

Even the Court of Criminal Appeals, Texas’ highest criminal court, agreed that Fierro’s rights were violated and police committed perjury.

But the court, in a sharply divided opinion, stopped there. It refused to grant Fierro a new trial.

In Texas, the Court of Criminal Appeals is the state’s court of last resort, a gatekeeper that is supposed to remedy injustice, correct fundamental errors that occur at trial, and ensure that convicted defendants receive a fair hearing on appeal.

But a Tribune investigation found that it has not always done that.

To handle Death Row appeals, the court has appointed attorneys with previous disciplinary records or little experience. In its rulings, the court has frequently proved tolerant of flawed convictions and reluctant to acknowledge holes in the prosecution’s case.

In Fierro’s case, the majority on the nine-member court ruled that the violation of his rights was “harmless.” The court kept Fierro on track for execution, and he has now been on Death Row for two decades.

“I know some prosecutors in this world for whom a conviction is everything,” said Gary Weiser, who prosecuted Fierro. “But our job is to do justice. … I cannot believe he hasn’t gotten a new trial. It flies in the teeth of the Constitution.”

In fact, Weiser said, had he known before trial how Fierro’s confession had been obtained, he would have discarded it and probably dropped the charges.

The Court of Criminal Appeals also has refused relief to Death Row inmates represented by an attorney who slept at trial. It refused relief to a defendant who, a psychologist testified, was more likely to commit future acts of violence because he is Hispanic—testimony that even the state attorney general’s office found objectionable. The U.S. Supreme Court last week ordered a new sentencing hearing for the defendant, and the Texas attorney general has said six other inmates may receive new sentencing hearings on the same grounds.

The court has even refused relief to a convicted rapist, Roy Criner, even though DNA testing conducted after trial showed the semen found in the victim wasn’t his. The case is so problematic that one judge who voted with the majority told the Tribune he now believes his vote in the case was wrong and Criner should get a new trial.

The Tribune’s investigation of the death penalty in Texas found deep-seated problems that call into question the system’s integrity. In dozens of instances, Death Row inmates were represented at trial or in their initial appeals by attorneys who have been sanctioned over the course of their careers. Unreliable evidence, such as jail-house informant testimony and the visual comparison of hairs, runs through the state’s capital cases, as does the use of questionable psychiatric testimony.

Across the country, the death penalty is coming under increasing scrutiny. In Illinois, Gov. George Ryan declared a moratorium on executions after the disclosure of systemic problems in the administration of capital punishment. Governors in two other states have ordered death-penalty studies. And Congress is considering proposals to reform or suspend the federal death penalty.

In Texas, the nation’s leading executioner, many top officials insist the system needs no repair. They believe defendants receive ample opportunity to have their claims heard in the courts, and view the Court of Criminal Appeals as an effective safeguard.

Gov. George W. Bush relies heavily on the Court of Criminal Appeals to weed out questionable death-penalty cases before they reach his desk. But critics say the court falls short.

Since 1995, the year Bush took office, the court has granted new trials in capital cases only eight times, and new sentencings just six times. Over that same period, it has affirmed 270 capital convictions, the court’s records show.

On those rare occasions when the Court of Criminal Appeals does grant relief, it sometimes reconsiders. At least six defendants executed since Bush became governor were granted new trials by the court because of fundamental violations of their rights—only to have the court change its mind and reinstate the conviction.

“People think innocent people will get their cases caught by this court,” said Austin lawyer Raoul Schonemann, who regularly represents Death Row inmates on appeal. “But this court isn’t doing that.”

Presiding Judge Michael McCormick defended the court. He said it is an easy target, especially for opponents of the death penalty, because it no longer is a “liberal court that would do anything to reverse convictions,” as he says it was when he joined it in 1981.

He also had high praise for the state’s capital punishment system and its protection of defendants’ rights.

“From the get-go, I think Texas—despite what you read in the papers—is head and shoulders above other states,” McCormick said. “I don’t think any other state can hold a candle to us.”

Appointments under fire
In Texas, the appointment of attorneys for indigent defendants in capital cases has always been a source of controversy. Nearly everyone charged with that responsibility has come under criticism.

District Court judges appoint lawyers for trial and a defendant’s initial appeal, but these local judges have frequently made questionable choices. Of the 131 inmates executed under Bush, 43 were represented by an attorney who at some point has been disbarred, suspended or otherwise sanctioned, the Tribune reported Sunday.

The appointment of attorneys for an inmate’s final appeals, known as writs of habeas corpus, also has proved troublesome. These appeals allow attorneys to move beyond what occurred at trial and investigate for new evidence. Attorneys at this stage can argue, for instance, that prosecutors improperly concealed evidence favorable to the defendant.

Before 1995, Death Row inmates were not guaranteed an attorney for these appeals and often relied on lawyers willing to work for little or no compensation. But in 1995, Texas revamped its system. A new law sought to accelerate executions by collapsing the layers of appeal and setting strict filing deadlines.

The goal was to ensure that defendants received one full, fair set of appeals. The state agreed to pay for court-appointed attorneys to handle the final appeals for Death Row inmates. The Court of Criminal Appeals got the job of making these appointments.

The task of waging the last fight for a defendant’s life is demanding even for highly skilled and dedicated attorneys. But while assigning attorneys in about 300 cases, the Court of Criminal Appeals tapped some with questionable credentials or little experience.

For at least eight Death Row inmates, the court handpicked an attorney who previously had been sanctioned by the State Bar of Texas for misconduct, including one attorney who was still on probation. He was among four attorneys appointed by the court who had been disciplined more than once. In a ninth case, the attorney was sanctioned shortly after his appointment.

The misconduct ranged from relatively minor infractions to serious violations. They included failing to show up in court, lying to the State Bar of Texas or to a judge, and dismissing a client’s legal claim without the client’s permission or knowledge.

In March 1997, the court appointed attorney David K. Chapman to represent Death Row inmate Leonard Rojas, even though the state bar had twice given Chapman probated suspensions—sanctions that allow the lawyer to continue practicing if he meets certain requirements, such as paying restitution or getting help with an alcohol problem.

In 1996, Chapman received a probated suspension for four years because he failed to withdraw from a case even after his “mental or psychological condition materially impaired his fitness to represent his client,” according to disciplinary records.

In 1995, Chapman received a probated suspension for neglecting legal matters entrusted to him by three clients, records show. He received yet another probated suspension, his third, nine days after being appointed to handle Rojas’ final appeals.

Chapman, whose nearly three decades of legal experience includes stints as a prosecutor, appellate lawyer and research attorney on the Court of Criminal Appeals, said he has the skills to handle capital cases, although he admits there were times he did “less well on cases than I should have.”

“In 1997, I was in pretty good shape as a lawyer,” said Chapman, who declined to discuss his problems in detail. “Things were a lot better.”

Some of the lawyers appointed by the Court of Criminal Appeals had clean disciplinary records but made crucial mistakes.

Robert McGlohon, a former briefing attorney for one of the judges on the appeals court, had been a lawyer for less than three years when he was appointed, in April 1996, to handle Ricky Kerr’s state habeas corpus petition.

But McGlohon filed only one claim—a perfunctory challenge to the law itself—rather than raise substantive issues that might have entitled Kerr to a new trial. That, according to Texas law, meant Kerr forfeited the right to raise other issues later.

The court, while noting how thin McGlohon’s petition was, denied Kerr’s appeal. Kerr wrote to the court and asked for another lawyer and a new appeal, but the court turned him away.

When another attorney heard about Kerr’s plight, he tracked down McGlohon and obtained a sworn affidavit in which McGlohon admitted “it may be that I was not competent to represent Mr. Kerr.” He blamed a lack of experience and health problems.

Prosecutors told the court they would not oppose Kerr’s motion for a new lawyer.

The court responded with a two-paragraph denial. One dissenting judge, Morris Overstreet, said the court had made a “farce and travesty” of Kerr’s rights. He said that if Kerr were executed, the court would “have blood on its hands.”

“By this dissent,” Overstreet concluded, “I wash my hands of such repugnance.”

Two days from his scheduled death by lethal injection, Kerr was granted a stay of execution by a federal judge. He remains on Death Row and is continuing to appeal his case.

McGlohon did not return repeated calls for comment.

The appointment system that started in 1995 encountered problems for a variety of reasons. Many experienced defense attorneys refused to pursue appointments, saying that caps on payment were so low—$7,500 at the program’s outset—that they placed attorneys in an untenable position: either work, in large measure, for free, or violate their professional ethics by not working the appeal aggressively.

Many of the lawyers who did accept such appointments have been accused by experienced appellate attorneys of doing slipshod work and of being ill-equipped to tackle such difficult cases. Some have admitted their failings themselves. Others say they weren’t given the help they needed.

Erika Copeland suffered from a lack of experience and resources while representing Death Row inmate James Clayton, convicted of the 1987 murder of an Abilene grade-school teacher. By the time Clayton was executed late last month, his case had never been fully investigated, Copeland said. She blames herself and the court.

“I don’t know what could have been investigated. I don’t know what else I could have done. But that’s only because I knew so little,” said Copeland, now an attorney for the Texas Workers’ Compensation Commission. “I really feel like I greased the wheels for his execution.”

McCormick, the presiding judge, admitted that when the program started the court had problems appointing attorneys, and even had to draft some to handle cases. He acknowledged that the lawyers were not always given enough resources—a result, he said, of the Texas Legislature’s failure to fund the program adequately.

He said the court did not check lawyer disciplinary records to screen its appointments. But overall, he said, the court tapped the “upper crust” of the state’s defense bar.

“I just don’t think there’s a correlation between one’s ability in the courtroom and the fact that one has discipline on his record,” McCormick said.

Last year, Texas again shifted how attorneys are appointed for a Death Row inmate’s final appeals. Now, local judges appoint attorneys using a list of candidates approved by the Court of Criminal Appeals.

The court’s current list of more than 100 attorneys includes four attorneys who have been sanctioned for various forms of misconduct, lawyer disciplinary records show.

Court shifts to right
Mirroring a dramatic shift in Texas’ statewide politics, the Court of Criminal Appeals went from all Democrat to all Republican between 1992 and 1999. Candidates often went to great lengths to tout their law-and-order credentials.

Judge Stephen Mansfield, a candidate who decried reversals for what he called technicalities, was elected to the court in 1994 even though he lied during his campaign about his background.

Mansfield, who was once fined in Florida for practicing law without a license, claimed he was a Texas native with extensive experience in criminal law. The truth was Mansfield was born in Massachusetts and his experience was chiefly handling insurance litigation.

Mansfield’s duplicity was exposed before the election, but he won anyway. His falsehoods earned a public reprimand from the State Bar of Texas. Then in 1998 he was arrested outside a University of Texas football game for scalping tickets—after he had been warned by a police officer to stop.

The state’s Commission on Judicial Conduct reprimanded him, and a judge in Austin, where the court is based, sentenced Mansfield to six months’ probation, a fine and community service after Mansfield pleaded no contest to trespassing. He remains on the court but is not running for re-election for another six-year term.

Mansfield said he regrets the incidents but believes they have overshadowed his work on the court.

“I do think that because of my past mistakes I have not gotten the credit for some of the work that I’ve done,” he said.

While Mansfield’s out-of-court conduct has been criticized more than any other judge’s, Sharon Keller has in many ways come to epitomize the current appeals court and its handling of cases.

A former Dallas County appellate prosecutor with no judicial experience, Keller joined the state’s highest criminal court in the same month that Bush became governor.

Keller, who has campaigned as a tough-on-crime conservative, now is poised to become the court’s leader. She is running for presiding judge and prevailed in the Republican primary in April, making her the clear favorite to succeed the retiring McCormick.

Of the eight cases since 1995 where the court has granted a new trial to a Death Row inmate, Keller on six occasions joined a bloc of judges voting to deny relief. Those six cases were reversed for a variety of reasons, including misconduct by police and prosecutors. The dissents generally maintained there was no error at all, or if there was error, it should be deemed harmless.

But the case that appears to have generated the most notoriety for Keller—and the court in general—doesn’t involve the death penalty. It concerns Roy Criner, a man sentenced to 99 years for the rape of Deanna Ogg, a 16-year-old girl found dead in Montgomery County.

Criner insists he is innocent. Murder charges were dropped against him for lack of evidence, but the prosecution pursued a sexual assault charge on the basis of three witnesses’ testimony that Criner had told them about picking up a young hitchhiker and forcing her to have sex.

At Criner’s trial in 1990, the prosecution maintained that Criner, acting alone, raped Ogg and that Criner’s blood type was consistent with the semen found inside Ogg’s body. But sophisticated DNA tests later showed the semen wasn’t Criner’s.

By a 5-3 vote in 1998—with one judge abstaining—the Court of Criminal Appeals said the DNA results didn’t warrant a hearing on Criner’s claim of actual innocence. Keller, writing for the court, embraced the prosecution’s theory that Criner may have worn a condom or not ejaculated.

The evidence, she wrote, “shows merely that the victim had sexual relations with someone” other than Criner shortly before her death.

In January, PBS’s “Frontline” aired a documentary that focused on Criner’s case. On the show, Keller said there was a “possibility” that Criner was innocent, but that wasn’t enough. Keller cited Ogg’s alleged promiscuity and said the DNA evidence failed to prove Criner didn’t have sex with her.

“At best, he made some people think that he might be innocent,” Keller said. “But he didn’t prove it.”

Keller was asked, “How can you prove you’re innocent?”

She answered: “I don’t know. I don’t know.”

Tom Price, one of three appeals court judges who dissented from the court’s refusal to grant Criner a hearing, told the publication Texas Lawyer that the case had made the court “a national laughingstock.”

Keller declined to be interviewed for this article.

Mansfield, who sided with the majority in denying Criner a hearing, told the Tribune that he voted “the wrong way” and would change his vote if he could cast another.

He reached his conclusion after watching the “Frontline” documentary, reviewing briefs and considering the case at some length.

“Judges, like anyone else, can make mistakes … I hope I get a chance to fix it,” said Mansfield, who added that he hoped Criner’s lawyers would file a new appeal. “I think he should get a new trial.”

Mansfield said the reasoning behind Keller’s opinion was not good enough to keep Criner in prison.

“It’s an explanation that one could come up with, yes,” he said. “But, in retrospect, I don’t think it’s a solid enough explanation to make me comfortable.”

Two weeks ago, the court confronted DNA testing in another case. By a 6-3 vote, with Keller in the majority, the court issued a one-paragraph order overturning a judge’s decision to grant new DNA testing to Ricky McGinn, a Death Row inmate convicted of raping and murdering his 12-year-old stepdaughter.

Bush, however, granted McGinn a 30-day reprieve so the tests could be done—the first time he has delayed an execution.

New trial denied
In some cases where the Court of Criminal Appeals has ruled that trial errors were harmless and a conviction should stand, the evidence of the defendant’s guilt was truly overwhelming. But that’s hardly true of all cases where the court has forgiven errors that provided prosecutors with an unfair advantage.

Cesar Fierro’s is such a case.

Fierro is on Death Row for the 1979 murder of Nicolas Castanon, an El Paso taxi driver shot in the head and shoulder.

Fierro, a laborer who was born in Juarez and grew up on both sides of the border, was arrested when a 16-year-old named Gerardo Olague went to police five months after Castanon’s slaying and implicated Fierro. Before that, nothing had linked Fierro to the crime.

Police, in fact, arrested two other men for the murder but prosecutors did not try them. One witness told police that he saw one of those suspects leaving Castanon’s taxi after the murder had occurred. Another witness said he saw both suspects in Castanon’s cab on the morning of the murder, and that one suspect was driving the taxi.

Olague presented police with a different version of events. He testified that Castanon had agreed to give Fierro and Olague a ride to Juarez. Fierro shot and killed Castanon on the way there, Olague testified.

Fierro, now 43, was convicted based on Olague’s testimony and his own confession. Since then, he has steadfastly maintained that he is innocent and that he confessed only out of fear his mother and stepfather would be tortured by Juarez police.

Fierro was in an El Paso jail when police questioned him about the Castanon murder. He says local police told him that his parents were being held hostage in Mexico by Juarez detectives. As proof, El Paso detectives showed Fierro two letters that he and a brother had written to their mother and had been passed along by Juarez police.

Fierro said he signed a statement an El Paso detective put in front of him.

“He told me if I signed, then they’d let them go, and if not, they were going to torture them,” Fierro said in a recent interview from Death Row in Livingston.

At Fierro’s trial, Juarez and El Paso police denied wrongdoing. But a police report found by Fierro’s appellate attorneys showed El Paso police had lied when they claimed to know nothing about Fierro’s parents being held.

At a hearing more than a decade after Fierro was convicted, District Court Judge Herbert Marsh determined that police had not told the truth and that there was a “strong likelihood” Fierro’s confession was coerced.

Marsh ruled that Fierro should get a new trial.

Weiser, the assistant district attorney who prosecuted Fierro, said in a sworn affidavit that he had come to believe that El Paso and Juarez detectives “colluded to coerce Fierro’s confession.” Weiser also said he would not have prosecuted Fierro on Olague’s word alone.

Olague’s accounts of the crime contained inconsistencies. And at trial, the judge had instructed jurors that they could treat Olague as an accomplice and view his testimony with skepticism. Courts treat accomplice testimony as inherently suspect because the witness has motive to lie and downplay his own role.

The Texas attorney general’s office, which was handling the appeal for prosecutors, argued that Fierro should not be allowed to continue to argue the merits of the confession. It said after 20 years of appeals, “the state’s interest in finality is overwhelming.”

Fierro’s appeal was denied by the Criminal Court of Appeals on a 5-4 vote. Keller wrote the majority opinion, saying the court believed Fierro would have been convicted even without a confession, based upon Olague’s testimony.

But the dissenting judges were not so sure.

Judge Frank Maloney said Olague “was not the most credible of witnesses.” Another dissenter, Morris Overstreet, called a confession the “most powerful piece of evidence” a prosecutor can offer. He said it was “totally inconceivable” that Fierro’s confession did not convince the jurors of his guilt.

Fierro said he believes the Court of Criminal Appeals does not want to admit it erred in his case.

“They made a mistake. They know it,” Fierro said. “But they don’t want to fix it.”