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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Texas executes Erick Davila

Erick Davila
Texas has executed a 31-year-old prisoner condemned for killing a 5-year-old girl and her grandmother in a gang-related shooting at a child's birthday party in Fort Worth a decade ago.

Erick Davila received lethal injection Wednesday evening for using a semi-automatic rifle to spray bullets at about 20 people — more than a dozen of them children.

Minutes before his scheduled 6 p.m. death, the U.S. Supreme Court rejected his final appeal, and he was strapped to a gurney in a mint green room, where he spoke his final words as Stevenson and other family members of the victim watched through a glass pane.

“Yes, I would like to say nephew, it burns, huh," he said. "You know, I might have lost the fight, but I’m still a soldier. I still love you all. To my supporters and family, y’all hold it down. Ten Toes down right. That’s all.”

He was then injected with a lethal dose of pentobarbital and was pronounced dead at 6:31 p.m.

Davila fought his sentence to the end, maintaining to the courts that he only intended to kill his rival, Jerry Stevenson, not the man’s daughter, Queshawn, or her grandmother, 47-year-old Annette. It was an important distinction because the jury had to find that Davila intended to kill multiple people to be eligible for the death penalty. Prosecutors argued Davila always intended to kill more than his rival, pointing to his statement to police that he was trying to get “the guys on the porch” and “the fat dude.”

“I wasn't aiming at the kids or the woman and don't know where the woman came from,” Davila said in a written statement to police, according to court documents. “I don't know the fat dudes name, but I know what he looks like, so I recognized his face.”

It was the question of intent that eventually led Davila’s case to the nation’s high court last April on a legal technicality. His current lawyer, Seth Kretzer, argued that when jurors at his trial questioned if they needed to decide whether Davila intended to kill his two victims or if he intended to kill someone and in the process fatally shot two others, the judge — who is now the Tarrant County criminal district attorney — erred in her answer.

The judge responded that Davila would be responsible for a crime if the only difference between what happened and what he wanted was that a different person was hurt — without affirming to them that Davila must have intended to kill more than one person. The jury found him guilty.

Though his lawyer at trial objected to the judge’s instructions, the objection was overruled, and the issue wasn’t brought up again in Davila’s state appeals, which Kretzer said was bad lawyering.

The question that landed in front of the U.S. Supreme Court was whether Kretzer could raise the jury instruction in federal courts because of ineffective appellate lawyers.

The Walls Unit, Huntsville, where Texas carries out its executions.
Generally, federal courts can’t take up issues that could have been raised in state courts, but there is an exception when the trial lawyer is found to have been ineffective. But in Davila’s case, it was the appellate lawyers, not the trial lawyer, who were being accused of dropping the ball.

In June, the justices decided in a split ruling that the two types of attorneys can’t be treated equally, and Davila became eligible for execution.

He didn’t stop fighting.

After Tarrant County set an execution date, Davila filed new appeals. In his last petition, Kretzer asked the U.S. Supreme Court to delay the execution because he recently discovered that Davila’s original co-defendant told the judge that Davila was “heavily intoxicated” during the shooting — a fact that was apparently unknown by defense attorneys.

Kretzer wanted time to further develop claims that the prosecution may have failed to disclose information about Davila being on drugs at the time of the murders.

“While intoxication is not a defense to murder, it would have been an issue that would have been relevant to mitigation and sentencing,” Kretzer said Tuesday, indicating a jury could have been persuaded to hand down the lesser sentence of life in prison without parole if it was brought up at trial.

The Texas Attorney General’s office argued against the appeal in its court filing, saying that Davila himself would obviously be aware of his own intoxication, so it was information the defense could have found earlier, disqualifying it from court review now. The courts agreed with Texas, denying Davila’s motions.

Davila’s team had also asked the nation’s high court to remove the Tarrant County District Attorney’s office from his case since the criminal district attorney, Sharen Wilson, was the judge who oversaw his trial, and his former state appellate attorney now works for her.

“The clients should obviously be able to trust their lawyers,” Kretzer said. “You can’t get confidential information from your client and then turn around and use it against him.”

Texas' Death House, Huntsville.
A spokeswoman for Wilson said Tuesday she couldn’t comment on the pending case, but she pointed to the office’s court briefings, which indicates Davila’s previous appellate attorney is not allowed to have any involvement in the case. The state also argues that Wilson’s minimal action in the case does not violate Davila’s due process rights.

“Davila presents no direct authority mandating the office’s removal from their Texas statutory duty to represent the State, especially when the action complained of is the ministerial act of setting an execution date,” wrote Texas Assistant Attorney General Katherine Hayes in the state’s briefing to the Supreme Court.

Annette Stevenson, a 48-year-old grandmother, and her granddaughter, Queshawn Stevenson, were killed in the April 2008 attack. Four others were wounded, including the girl who was celebrating her 9th birthday.

Authorities said the gunfire was in apparent retaliation against the slain child's father, who had a previous run-in with Davila.

Davila becomes the 5th condemned inmate to be put to death this year in Texas and the 550th overall since the state resumed capital punishment on December 7, 1982.

Davila becomes the 9th condemned inmate to be put to death this year in the USA and the 1474th overall since the nation resumed executions on January 17, 1977.

Source: The Associated Press, Texas Tribune, Rick Halperin, April 25, 2018


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning