Chicago Tribune

By STEVE MILLS and KEN ARMSTRONG
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.”