Monday, May 2, 2011

The Righteous Execution of Osama bin Laden

Congratulations to our military, our commander-in-chief, and all those who participated in the execution of Osama bin Laden. An impressive job, one and all.

While I publicly oppose a few executions and stand mute on most, I heartily commend this one. May all his victims rest in peace.

The Impending Wrongful Execution of Cary Kerr

Texas will almost certainly execute Cary Kerr this coming Tuesday, as soon as they possibly can after 6 PM. I believe there is zero chance that Governor Rick "Willingham Was a Monster" Perry will make any effort to stop or delay the execution.

On the issue of the death penalty in general, I express no public opinion. I vehemently and publicly oppose, however, the execution of anyone who might be innocent. I am reviewing each execution this year to determine beforehand if an innocent person might be put to death.

For 11 of 12 executions so far, I stood mute as the State injected lethal chemicals into a man's arm. I opposed the execution of Richard Clay. Governor Jay Nixon commuted the sentence to life in prison without possibility of parole. I opposed the execution of Eric King. Governor Jan Brewer allowed the execution to proceed.

I believe there is a substantial chance that Cary Kerr is factually innocent of the crime for which he is certainly to die. I therefore vehemently, publicly and futilely oppose his execution.

Be forewarned. This post includes explicit sexual discussion. I have previously expressed my position regarding the discussion of such issues, and I'll repeat it here. I will not gratuitously use profanity or sexual allusions, but I will not shy away from any subject or any language when writing of wrongful convictions and executions. If  we as a society are so easily offended, we should be much more offended than we are about putting innocent people behind bars and about sticking lethal needles into innocent veins.

Source Material

Kerr's case seems to have drawn little attention despite the paucity of evidence against him. I find no appellate court summary detailing the facts of the case. That's unusual. For arguments of Cary Kerr's guilt, I will therefore rely instead on the summary prepared by Texas Attorney General Greg Abbott.

I find only one effort mounting a vigorous defense for Cary Kerr. That one group is Alive, an anti-death penalty group in Germany. They have reviewed the trial transcripts, and they rely on them for his defense. For arguments of Cary Kerr's innocence, I will rely heavily on information from their site.

Kerr's Version of Events

I begin with Cary Kerr's version of what happened that evening, extracted from Alive's web site. I will presume they attempt to present their case in a light most favorable to Cary Kerr. I will interrupt  them to clarify or comment.
On July 11, 2001, a Wednesday, Cary spent the morning in school studying for his Commercial Drivers License (CDL). He then went to the Department of Public Safety later that afternoon and passed the test to receive his CDL permit. Towards the evening he went to a local bar to celebrate.

While at the bar he met up with Pamela Horton, a friend that lived in the same area as Cary. They have known one another for a little over a month and have spent time together on other occasions.
Both Kerr and Horton lived in Holtom City, a suburb 5 miles northeast of Fort Worth. Elsewhere on their site, Alive claims "Horton and Cary Kerr lived in the same trailer park for 5 ½ months, they both knew each other, they were friends and they spent time together from time to time." The claims are not necessarily inconsistent. They could have lived in the same trailer park for 4.5 months without knowing one another.
Later Pamela and Cary went to another bar around the corner. Pamela was very drunk and decided she wanted to leave. Pamela had no car and had an injured leg. She was wearing a temporary leg-brace. Pamela and Cary left together and went to his home.

After arriving at Cary’s home they drank a beer and then ended up in bed together there they performed fellatio on one another, no intercourse was performed. Pamela and Cary had a disagreement, a short argument and Pamela grabbed some clothes and left. This was sometime after 1.00 am.
Elsewhere, Alive notes they performed "oral sex" on one another. The use of "fellatio" above is probably a reflection of English being Alive's second language.

Alive argues that Horton grabbed "some clothes" and left. Elsewhere they argue she grabbed merely her shirt and shorts and left. When found, Horton was wearing only her Levi cutoff shorts. Her shirt was never found.

The leg brace was "temporary" and removable. Alive claims that because of the brace, Horton wore only one shoe. The second shoe was later found still in her residence. The one shoe and (presumably) her leg brace were found in Kerr's apartment. Her panties and brassiere was also found in Kerr's apartment. That brassiere was ripped.
Approximately 40 minutes later Cary left his home to go to a 7-Eleven convenient store to get something to drink, eat, and get a pack of cigarettes. On the way there Cary had seen a body lying in the road halfway between his home and Pamela’s home. As he came to a stop he had seen that the body looked like Pamela.
Elsewhere Alive is more specific about the time. They claim Horton began walking towards her apartment at 12:30 AM and that her body was discovered at 2:05 AM. Those two events are 95 minutes apart, not 40. Elsewhere they claim that the two left the bar near 1 AM and that Horton left Kerr's house near 1:30 AM.
He went to the store as planned and called 911.
Kerr claims he did not get out of his car when he saw the person in the road because he thought she was a  lure for a robbery. He saw a black 4-door sedan near the person on the ground, and saw two men in that sedan.
After authorities were on the scene Cary went back to where the body was laying. Cary talked to the female Paramedic (EMT) and said he knew who the victim was. He then talked to the police telling them he knew Pamela and they was out together earlier.
The night ended with Cary being arrested.
Attorney General's Summary

I now present the State's case, as summarized by Texas Attorney General Greg Abbott. I presume he attempts to present the case in a fashion most damaging to Cary Kerr. I will interrupt  him to clarify or comment.
Texas Attorney General Greg Abbott offers the following information about Cary D. Kerr, who is scheduled to be executed after 6 p.m. on Tuesday, May 3, 2011. A Texas jury sentenced Kerr to death in March of 2003 for sexually assaulting and murdering Pamela Horton.
The evidence for sexual assault is astonishingly weak, apparently consisting of sperm on her oral swabs and and the ripped brassiere.

One means of establishing capital murder is to prove that the murder was committed in the course of a felony. Additional charges are therefore common in capital murder cases. Frequently, as seems to be the case here, the evidence for the additional charge is even weaker than the evidence for the murder charge.

One reason for pursuing a capital murder charge is that the evidence for the primary charge, the murder charge, is weak. Death qualified jurors set the reasonable doubt hurdle even lower than do average jurors, though most jurors place the bar astonishingly low.

The State therefore will pursue a weak case as a capital case, and throw in an even weaker case to meet one of the legal requirements for a capital case. With respect to Cary Kerr, the situation with secondary counts was more egregious than usual.

Sixty days before his murder trial began, Texas indicted Cary Kerr for robbery. They had not found the wallet / day planner Horton allegedly had with her that night. Though they had zero evidence that Cary Kerr stole that wallet, they charged him with the crime nonetheless.

During the trial, Horton's friends and family testify that Horton's day planner was missing.

At the end of the trial, shortly before the case was to go to the jury, the prosecutor approached the judge and explained the wallet / day planner had just been "discovered." The prosecutor claimed he had just learned from a young woman, a friend of Horton's, that she had been in possession of the wallet / day planner for the last 23 months. Throughout the trial, the young woman sat in the audience with the victim's family.

Now back to Abbott's summary.
In the early morning hours of July 12, 2001, the body of Pamela Horton of Haltom City was found in a street by a taxicab driver. An autopsy determined that Horton had been beaten and strangled.
More specifically, the autopsy determined that Horton died of the strangulation, not the beating.

The medical examiner testified that Horton was beaten bloody with what prosecutors described as a "bloody club." The bloody club was never found.

The ME also testified that Horton suffered some 26 cuts and abrasions on her head and body that would have left blood or tissue behind. The wounds were inflicted before she was strangled. He testified that if Horton had been transported in a car, her injuries should have left some genetic material in the car, either blood or tissue. No such evidence was found in Kerr's car, nor was any such evidence found in his apartment, or on his clothing, or on his person.

The autopsy also showed a tire print across one of Horton's thighs. The ME testified that Horton was dead when she was run over. The print could not be matched to any tire on Kerr's car.

The medical examiner testified further that Horton fought her attacker. Those who knew her testified she was strong and would have fought back. Kerr had no injuries on his body. Fingernail clippings, unfortunately or suspiciously, were either not taken or were lost.

The medical examiner testified that he could not say that Pamela Horton had been sexually assaulted, much less sexually assaulted by Cary Kerr. Without the sexual assault or theft charge, the case should not have been a capital case.

The medical examiner testified also, and shockingly, that Horton's blood alcohol level was 0.50%. That's more than eight times the 0.08% legal driving limit in Texas. That level is, in my understanding, potentially lethal. As a minimum, it would render the person unconscious. The ME testified, however, that a seasoned drinker could walk or even drive a car with that sort of blood alcohol level.

I must be therefore be wrong in my understanding.

Maybe not.

It seems in the murder trial of Texas v. Riddle, the State of Texas successfully refuted Granville Riddle's self-defense claim by pointing out that his alleged victim had a blood alcohol content of 0.29%, thereby rendering him unconscious and unable to threaten Riddle. In Texas v. Kerr, however, the State of Texas argued that a person with a 0.50% blood alcohol level could walk and drive.

Perhaps the 0.50% test result is in error. Perhaps Texas should unexecute Granville Riddle. Perhaps they should not execute Cary Kerr until it is all sorted out.

The bottom line is that the autopsy revealed a whole lot more than Greg Abbott decided to report. The most significant point that Abbott failed to make is that the autopsy exculpated Kerr rather than implicated him.

Now back to Abbott's less-than-informative summary of the case.
On the evening of July 11, Horton left a nightclub with Cary Kerr. After escorting Horton from the nightclub, Kerr returned briefly to the club and whispered to another woman that he was taking Horton home and that he would be right back.

An ambulance was summoned shortly after 2 a.m. the next day when Horton’s body, wearing shorts but nothing else, was discovered in the street.

After the paramedics had wrapped the victim’s body, Kerr approached them and asked them to pull back the sheet because he believed he could identify her. The paramedics responded that they would not pull back the sheet but asked Kerr to tell them who it was if he knew. Kerr stated that he was the one who found the body and had called them. The paramedics responded that no one “called” them; they were on the scene because they had been approached by a taxicab driver.
Abbott makes it seem as if Kerr was lying about having called 911. The 911 tapes, however, confirmed Kerr's version of events. He called 911 from the 7-Eleven store, just as he claimed.
Kerr then responded that he had flagged down the taxi. Kerr further stated that he had not stopped his car upon discovering her body because he thought she might be a robbery decoy and that he had seen a black sedan with two male passengers parked nearby. Kerr also stated that he recognized the woman as someone who frequented bars in the area.
Abbot fails to expand on the issue of the black sedan. Trial testimony by the paramedics confirms that Kerr told them about the black car and even pointed it out to them. They also saw a black sedan though they did not see the two males that Kerr claimed to have seen when he first passed by.

At least one of the paramedics mentioned the sedan to the police. The police failed to investigate it, photograph it, or even record its license number. At some point during the crime scene investigation, the sedan disappeared from the scene.
Police officers arrived at the scene, secured it, and talked to Kerr.
That sounds quite professional. As just mentioned, however, the police did not even take note of the license plate.
The officers saw a purse in Kerr’s car and asked whose purse it was. Kerr first stated it was the victim’s and then added, “If that’s the girl I picked up, maybe it’s hers.” He became very nervous after this admission. Kerr retrieved the purse from his vehicle for the officers’ inspection.
I'm not sure what portion of this description constituted an "admission." 
A broken, comb-like hair clip was attached to the handle of the purse. During their conversation with Kerr, the officers noticed a long strand of blond hair on his face. Kerr did not have blond hair but the victim did. One of the officers took the strand of blond hair. The officers later arrested Kerr at the scene.
Abbott fails to mention that the blond hair could not be matched to the victim, even by the low standards used in hair analysis. Kerr had been at a bar and had danced with several women, both blond and brunette. Even if had the blond hair been Horton's, it would only confirm Kerr's story that the two of them had recently been together.
A search of Kerr’s home yielded a brassiere, panties, and a plastic “tooth” for a comb or a hair clasp. The brassiere was severely torn in two places. Examination of the comb-like hair clip revealed that it had been manufactured with fourteen teeth but eight had broken off. The comb tooth retrieved from Kerr’s residence was the same color as the hair clasp, and microscopic analysis showed a match. The forensic examiner testified that considerable force would be needed to cause the observed damage to the hair clasp.
Apparently seven of eight broken comb teeth were not found. For what it's worth, I have difficulty imagining that circumstance whether Kerr is factually innocent or factually guilty. More on the comb when after I get around to discussing the State's theory of the case.
The brassiere and the panties contained DNA from the victim, and DNA testing showed that semen found in the victim matched Kerr’s DNA profile.
Horton's own DNA was found in her brassiere and panties. Imagine that. Her own DNA. I'm guessing her own DNA could also have been found on her shorts, shirt, shoes, leg brace, hair comb, and purse. Her DNA could be probably be found all over her personal items, regardless of who killed her. If you're not careful when you read Abbott's sentence, however, it seems as if the sentence is simply one more piece of damning evidence in a long chain.

Abbot failed to mention that some male skin-cell DNA was also found on the brassiere. The DNA test excluded Kerr as the contributor.

Abbott is particularly disingenuous when he mentions that Kerr's DNA was found inside Horton. He didn't mention that it was found in her mouth. No semen, however, was found in her stomach.

Abbott also fails to mention that semen was found in Horton's vagina, but testing excluded Kerr as a contributor. Both findings are entirely consistent with Kerr's version of events, that the two of them exchanged oral sexual favors but did not engage in vaginal sex.

As do the autopsy results, the DNA results exonerate Kerr rather than implicate him.

So that's it for Abbott's summary of the evidence used to convict Kerr of capital murder.

I'm serious. That's it.

Here's a pop quiz. What evidence points to Cary Kerr's guilt? What evidence proves beyond a reasonable doubt that he killed Pamela Horton?

The State's Theory of the Crime

Abbott didn't even mention the State's theory of the crime. I'll do that for him, best I can. First, from the Texas Department of Criminal Justice web site:
On 07/21/2001, Kerr sexually assaulted a 34 year old white female, strangled her, then pushed her out of a moving vehicle, resulting in her death.
That makes it sound as if Horton died as the result of being pushed from the car. According to the autopsy, she died of strangulation.

Next, I provide the State's theory of the case as provided by Alive, which I presume they derived from the trial transcripts.
The theory of the state is that Cary killed Pamela Horton at his home. He then placed the bloody body in his vehicle to took her out to some remote place. But before Cary could get to the woods, he kind of lost the body on the street. Cary then ran over the body with his vehicle to cover the crime. Then he went to the store to get cigarettes, something to eat and drink, called 911 and then came back to talk to medical staff and police before he got arrested.
That's also a bit thin. It leaves out issues such as the lack of blood in Kerr's home, or on his body, or in his car. It leaves out issues such as the missing club and the missing shirt. It leaves out the lack of wounds on Kerr's body.

I'll try to assemble a more complete theory of the State's case. I'll interrupt myself frequently with criticisms and comments. Remember, this is my effort to assemble the State's case for them, based in part on what I've read about their theory and based in part on what is necessary to build a coherent case.
Cary Kerr and Pamela Horton met in a bar. They knew each other because they both lived in the same trailer park. She was drunk and not in complete control of her faculties. He persuaded her to return with him to his apartment. She was not so drunk that she forget her purse.
If she was drunk enough to forget about her purse, that could explain how it was found in Kerr's car. She is therefore drunk, but not so drunk she would leave her purse behind.
Her fourteen-tooth hair comb was clipped in her hair.
If it was clipped to her purse, eight teeth would not have broken out during the struggle.
When she got to his apartment, she undressed with or without his help. She took off her shirt, her bra, her shorts, her panties, her one shoe, and her leg brace.
Oops. That's a problem. If she undressed herself, then the jury not might have bought into the sexual assault charge. I'm need to correct that last bit of theory.
The alcohol finally overcame her and she passed out. While she was unconscious, and therefore unable to consent, Kerr undressed her, then placed his penis in her mouth and ejaculated.
That would explain why there was semen in her mouth but none in her stomach: she was unconscious unable to swallow. Texas did in fact make this argument, and added that it proved she was too drunk to consent. They made this argument even though their own witness testified Horton could have walked and/or driven a car.

But even the State's "too drunk to swallow" theory is still a problem. It wouldn't explain why no semen was found on the floor, or the bed, or the linen, or any of the towels, or anywhere elsewhere in the apartment. The seminal evidence couldn't just disappear.

Perhaps Horton simply spit it out in the sink or toilet. That's an unacceptable theory, however, because it would indicate her participation in sex, or at least the fact she was conscious during sex. It would thereby risk the sexual assault element of the crime. Texas couldn't allow that.

Texas also couldn't argue that Kerr didn't produce enough semen to stain the surroundings, since that  argument would also explain why none was found in her stomach.

The best bet was for the State to not even mention the missing seminal evidence and to assume the jury wouldn't fret about it. That seemed to be the decision they went with. It seems they were right.

Now back to my theory of the State's theory of the crime.
After he had non-consensual sex with her, she came out of her stupor, realized what had happened, and threatened to tell the police, or did something to make him angry or scared. He took a club-like object and begin to beat her with it. He got no blood on his clothes because he wasn't wearing any. Either that or he later disposed of the clothes. She ended up with blood on her shirt, and he disposed of that shirt later, when he disposed of the club.
Oops. The theory so far is that he undressed her, or she undressed herself. After all, she was not wearing anything but her shorts when she was found. Her bra and panties were still in Kerr's apartment. If  Kerr disposed of her shirt because it had blood on it, the blood didn't get on it while she was wearing it. I need to modify the theory.
Though she was naked as she was being beaten, some blood splattered on her shirt, but on nothing else in the apartment.

Though they State could perhaps argue away the missing shirt and the missing bloody club, they were in a particularly difficult position regarding the lack of blood in the apartment. It would  have been nice to argue that Kerr violated and battered her some place other than in his apartment, but her clothes were found in his apartment.

Most importantly, the torn brassiere was found in his apartment. That reminds me ...
When beating her with the club, one blow struck her fourteen-tooth hair comb and knocked eight teeth from the comb. 
After beating her sufficiently that she could not scratch or harm him, he strangled her to death.
The alternative, that he strangled her after leaving the apartment, is not likely. He would have had to stop some place short of where she was pushed from his moving car. He would have to stop somewhere, strangle her bloody body, then continue on to where he would push her body from his moving car.

Given that the body was found between his place and hers, and given that they lived in the same trailer park, it's a bit of a stretch.
Kerr now got dressed and put Horton's shorts on her. Just her shorts. Nothing else. He took the now broken hair comb and clipped it to the strap of her purse. He collected seven of the eight broken comb teeth, but failed to find or notice the eighth. He gathered up her shirt. He carried everything to his car. He carelessly left behind one of her shoes, her leg brace, and her brassiere.
When placing the objects in his car, he placed her purse in a different location than everything else. When he later disposed of everything else, he would forget that he placed her purse by itself in another location.
Kerr returned to his apartment and straightened up. There would be no sign of a struggle. He  then lifted her violated, beaten, and strangled body, carried it to the car, and placed it in the passenger seat where he would be able to push it out while still moving.
This should have been a real big problem. Even the State's own witness, the medical examiner, testified that if Kerr had placed Horton's bloodied body in his car, then the car would have evidence of her blood and/or her tissues. Once again, the best thing to do was to simply assume the jury wouldn't notice or care.

And finally, I'll finish with my theory of the State's theory of the case.
While driving between his place and her place, which were in the same trailer park, Kerr leaned over Horton's dead body, opened the car door, and shoved her out of the car. He then turned around and intentionally ran over one of her legs one time with one tire to somehow cover up the crime.
Kerr then drove to some unidentified location and successfully disposed of Horton's shirt and seven of the comb clips. It didn't occur to him that the comb itself was still attached the strap of Horton's purse which was still in his car.
He then went to the 7-Eleven store, called  911, bought beer and cigarettes, and returned to the crime scene. There he engaged first the paramedics then the police in a discussion of his involvement in the case.
My Assessment

I think it would have been irresponsible for the police to have not considered Cary Kerr a suspect. He was the last person known to have been with Pamela Horton, and that was not long before her body was found. I have not heard a good explanation from the Kerr camp for the ripped brassiere or the broken hair comb tooth found in Kerr's apartment. I find it strange that Kerr did apparently buy beer and cigarettes from the 7-Eleven, even though he had just phoned 911 about a woman lying in the road, a woman  with whom he possibly just had sex, with whom he had just had a fight.

I'm bothered as well that during the penalty phase of the trial, after Kerr was found Guilty of murdering Horton, two ex-wives and an ex-girlfriend testified that he beat them. One neighbor testified that Kerr once forced her to perform oral sex on him. She reported the case to the police, and Kerr ended up being sentenced to one year in jail for assault causing bodily injury.

On the other hand, I simply can't understand how Kerr could have inflicted more than 20 blood and tissue-letting injuries upon Horton, yet avoided getting her blood or her tissues on anything. There were no blood or tissue samples found on her clothes, or on his clothes, or in the apartment, or in his car. It's almost as if he didn't kill her, as if she were killed by someone else somewhere outside his apartment.

Also, I can't understand how Kerr came to have not even a superficial injury on him even though the medical examiner testified that he found evidence that Horton had fought with her attacker. Kerr had not a scratch on him. Somehow, her fingernails were never collected and tested.

I believe those issues should cause a reasonable juror to have reasonable doubt about Kerr's guilt. I therefore oppose his execution.