Tuesday, November 20, 2007

In prelude to death, a legal firestorm

Emotion, glitches mire struggle to delay a Texas killer's execution


Michael Wayne Richard already was dressed for his execution in Texas' death house on Sept. 25 when the U.S. Supreme Court announced at 7:30 p.m. it wouldn't postpone the convicted killer's lethal injection.

"I'd like my family to take care of each other," Richard, wearing a white smock, matching pants and slippers, called out. "Let's ride. I guess this is it."

By 8:23 p.m., Richard, 48, was dead. He was the 42nd person executed in the United States this year and the 26th in Texas, the leading death penalty state.

Now, his execution for the rape and murder of a nurse in 1986 has become the latest flashpoint in the national debate about whether the death penalty is being applied fairly. It followed a frenzied, behind-the-scenes legal fight that led to intense criticism of the Texas court system and confusion about the actions of the nation's highest court.

The U.S. Supreme Court, without comment, refused to intervene in Richard's execution -- even though, just hours earlier, the court had said it would use a Kentucky case to review questions about lethal injection.

The court's decision effectively has put executions on hold across the nation. Since allowing Richard's execution, justices have stopped the next four. The latest was Thursday, when the court issued a stay five hours before Mark Dean Schwab was to be executed at Florida State Prison in Raiford for the rape, torture and murder of 11-year-old Cocoa resident Junny Rios-Martinez Jr. in 1991.

That would have been the only execution this year in Florida, which appears headed to its first execution-free year since 1982.

That stay also means Richard's execution is likely to be the last until the Supreme Court rules in the Kentucky case next year. With 385 inmates on Florida's death row, that decision surely will have an impact.

While executions are carried out before dozens of witnesses, much of what leads up to -- and sometimes prevents -- them occurs behind the scenes. Interviews with defense lawyers and state officials, along with court and prison documents, reveal the legal chaos that played out in the hours leading up to Richard's execution.

IQ argument

Even in death, Richard never will be a particularly sympathetic figure.

Just two months after his parole for convictions on auto theft and forgery charges, Richard attacked nurse Marguerite Dixon inside her home in a Houston suburb, sexually assaulted her, shot her in the head, took two TVs and fled in the Dixon family's van, according to Texas prison records.

Whether Richard deserved to die for the 1986 attack wasn't part of the argument his attorneys made in their last request to the Supreme Court to delay the execution. Instead, the attorneys argued that because the court had announced earlier that day that it would review the entire lethal injection process, it simply was not Richard's time to die.

For two months before the execution, Greg Wiercioch, David Dow and other death penalty lawyers with the Texas Defender Service in Houston pursued appeals based on claims that Richard, a former mechanic, was mentally retarded.

His IQ once was measured at 64; a score of 70 or below generally indicates retardation, Wiercioch said.

(In 2002, the Supreme Court ruled that executing mentally retarded offenders violated the Eighth Amendment's ban on cruel and unusual punishment.)

On the morning of Sept. 25, Richard's attorneys filed what they thought would be their final appeal to the Supreme Court on the retardation issue.

At 9 a.m. Texas time, the Supreme Court announced it had accepted the Kentucky case, which tests the standard for deciding whether the mix of three drugs used in lethal injections carries a risk of suffering.

Most states, including Texas and Florida, have adopted the same mix of sodium thiopental, an anesthetic; pancuronium bromide, a paralyzing agent; and potassium chloride, which stops the heart.

Dow learned of the court's decision at 10:15 a.m., when he finished teaching a law class at the University of Houston.

By 11:40 a.m., he was on a conference call with six Texas Defender Service lawyers in Houston and Austin to devise a new appeal to the Texas Court of Criminal Appeals. If rejected, they would ask the U.S. Supreme Court to halt the execution until the justices ruled on the lethal injection issue.

The defense team's plans began to unravel about 3:15 p.m., when its computer system at the Houston office of the Texas Defender Service, a privately funded group specializing in death cases, crashed as attorneys were drafting the new appeals.

The crash cut off electronic contacts between Houston and the Texas Defender Service's office in Austin, where paralegals and attorneys were standing by to print the required 10 copies of the documents for delivery to the Texas appeals court before the 5 p.m. closing.

Repeated efforts to repair the computer system failed. By 4:30 p.m., Dow said, the defense team in Austin began alerting the clerk at the state Court of Criminal Appeals about the problem and the likelihood that Richard's appeal would be late.

Louise Pearson, the court clerk, did not respond to USA Today's request for comment. Defense attorneys say at least four pleas for more time to file Richard's appeal were denied -- the last at about 4:48 p.m., after attorneys had regained some computer operations. Dow said his team asked the court about filing the appeal electronically. The request was rejected, he said.

"Everybody in the office was outraged," Dow said.

Less than a half-hour before the scheduled 6 p.m. execution -- as the defense team turned to its last option, the Supreme Court -- the computer problems flared again.

The lethal injection appeal took on added importance about 5:30 p.m., when the high court rejected the defense's mental retardation appeal. Dow said the last-ditch lethal injection appeal to the Supreme Court may have been undermined because the Texas court had never ruled on it, leaving no record for the Supreme Court to consider.

Shortly before 6 p.m., after a conversation with Wiercioch, the attorney general's office directed prison authorities to suspend the execution until the U.S. Supreme Court weighed in.

'The integrity of the process'

The 29 witnesses for the execution were gathered in holding rooms near the death chamber when the Supreme Court received Richard's new appeal.

As 6 p.m. passed and the delay lengthened, Patricia Miller -- Richard's sister and one of three Richard supporters designated to view the execution -- said a prison worker suggested that the passing time might be "a good sign."

But about 8:10 p.m., the witnesses were ushered into the viewing rooms.

Miller said she saw her brother strapped to the gurney.

"We could hear him," Miller said, referring to Richard's brief final statement. "He closed his eyes. We heard him take his final breath."

Nothing in Miller's description indicated Richard showed any signs of pain, a key issue before the Supreme Court in the Kentucky case.

Carmen Hernandez, president of the National Association of Criminal Defense Lawyers, said the gruesome facts of the case and Richard's offensive conduct shouldn't be the issue.

"It's about the integrity of the process," Hernandez said. "The test of whether the system is fair is how it runs in a difficult case, when there are no mitigating factors and the defendant is not particularly sympathetic.

"In a death penalty case, there is irretrievable finality. You ought not to close the courtroom doors, especially on a day of an execution."

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