Wednesday, January 25, 2012

I Oppose the Impending Execution of Rodrigo Hernandez

Rodrigo Hernandez sits on death row awaiting execution by the people of Texas. Unlike most other death penalty cases, most of the appellate decisions regarding his case are not available on Google Scholar. I will therefore construct a summary of his case from bits and pieces. I begin with the standard media advisory from Texas Attorney General Greg Abbott.
The record reflects that in the early morning hours of February 18, 1994, victim Susan Verstegen was re-stocking snack products at a San Antonio grocery store from the storage bin in back of the store. While working at the storage bin, Verstegen was attacked, sexually assaulted, and strangled by Hernandez. The offense remained unsolved until 2002 when the results of DNA testing of evidence that had been collected from the crime scene, and that had been entered into a national database, matched the results of DNA testing on a sample that had been collected from Hernandez by the State of Michigan and entered into the same national database. After the reported match, another sample from Hernandez was tested, and the DNA pattern was found to match the DNA pattern from the sample collected from the crime scene. Hernandez’s written statement, which detailed his actions in attacking, sexually assaulting and killing Verstegen, was also introduced into evidence.
Though not mentioned in the advisory, it seems as if DNA has linked Hernandez to another murder. From
GRAND RAPIDS -- When Rodrigo Hernandez was about to be sentenced to prison in 1998 for severely beating a Grand Rapids man, he asked a judge for mercy because he had become a reformed "family man." 
"I have been living an honest life and staying out of trouble," he wrote in a letter. "I consider myself a family man. So I appreciate it if you would give me one more chance to be able to continue my life with my family, better my life and help the community." 
What Hernandez failed to tell the judge, police now say, is that he committed two as-then unsolved rapes and murders: the 1991 brutal beating, rape and shooting of 77-year-old homeless woman Muriel Stoepker in Grand Rapids and the 1994 killing of a 38-year-old San Antonio woman. 
Stoepker was known as Mary or the "bag lady" in downtown Grand Rapids because she carried her belongings in plastic bags. 
Evolving DNA evidence helped police link Hernandez to both crimes, the latest revelation coming Thursday as police announced they believe he was responsible for killing Stoepker. 
Hernandez, 37, has been on death row in Texas for six years, with his DNA part of a national database since Michigan prison officials took a mouth swab upon his 2002 parole for the 1998 assault. He was arrested six months later in Grand Rapids for the DNA match to the Texas homicide. 
Stoepker's case took longer, police say, because the semen sample was too small at the time to make a good profile. 
This year, the Kent County Metro Cold Case Team decided to resubmit the sample from her case, knowing the standards had changed. 
"Before it would have taken something the size of a bottle cap," said state police Detective Sally Wolter. "Today, it's the size of a pin head." 
Police have looked at whether Hernandez might be responsible for other unsolved murders in the Grand Rapids area from the 1990s, but they have no further DNA evidence to link him to any other crimes. And Hernandez is not cooperating. 
Cold case team detectives recently visited him in prison but could not get him to speak about Stoepker or anyone else.
I now include a segment from a post by Mike Farrell. Recall that Farrell played B. J. Hunnicutt on Mash. He is now an ardent death-penalty abolitionist. [Errata: My bad. The post was by a different Mike Farrell who is also an ardent abolitionist. See the comments.]
Hernandez was convicted in 2004 of the 1994 kidnap, rape and murder of Susan Verstegen, an act following which he attempted to conceal the victims body in a 50 gallon drum. 
Unfortunately during the original investigation a lack of evidence meant that the case went cold, remaining in limbo for 8 years. However when Hernandez was later imprisoned in Michigan for an unconnected offence, and on release in 2002 legally compelled to give a DNA sample for the national DNA database, his sample was matched with unidentified DNA samples recovered from the Verstegen case also on the database. Hernandez was then arrested and charged with murder. 
On questioning he gave a detailed confession to the murder claiming to have been under the influence of drugs and alcohol at the time. He was subsequently found guilty on trial in Bexar County, Texas, and sentenced to death in April 2004, allegedly showing no remorse. He has been on death row since. 
In light of the confession, DNA and the absence of any evidence that  the trial was flawed, there is nothing suggesting the conviction was unsafe, and it is therefore not in question, Hernandez deserves to be punished. Only the capital sentence is in question here.
Despite the seemingly overwhelming evidence against him, Hernandez refuses to confess to the murder of Susan Verstegen. I don't know whether or not he affirmatively maintains his innocence.

I've found no one who seems bothered by the quality of either the DNA evidence or the confession. Even Mike Ferrell writes "there is nothing suggesting the conviction was unsafe." I guess I might be the first to suggest otherwise

I cannot actually object to the DNA evidence any more than I can accept it without question. While we are told Hernandez is linked to the Verstegen murder by his DNA, we are given no other details. Apparently the simple mention of DNA is sufficient proof for most readers.

I can and do object, however, to the confession evidence. Regarding that confession, I found the following from a U.S. Fifth Circuit decision.
The state trial court held an evidentiary hearing to determine whether Hernandez's written confession should be suppressed. The two officers who interviewed Hernandez testified that after he was given his Miranda warnings, he confessed to his involvement in Verstegen's death, claiming that he had raped her but had not intended to kill her. The officers also said that although Hernandez agreed to give a written statement, he asked one of them to write it for him because his hands were shaking too much. According to the detective who took the statement, Hernandez read it before initialing each page and signing the last page. Hernandez's attorney argued that the confession should be suppressed because it did not comply with Michigan law. The state trial court concluded that Texas and not Michigan law applied and that under Texas law the confession was proper, so it was admissible. 
Hernandez now asserts that it was unreasonable error for his attorney not to put him on the stand to testify during the hearing. Hernandez contends that he would have testified that he had signed a blank form and that his initials were forged. The lawyer testified during the state habeas proceeding, however, that Hernandez was extremely nervous and had an extensive criminal record, so his credibility likely could be impeached. It would have been Hernandez's word against that of two officers. The attorney did suggest at the proceeding that the confession may have been forged, but he chose to raise that argument during cross-examination of the officers.
I'll concede immediately that Hernandez's claim he signed a blank sheet of paper sounds bogus. I note, however, that it sounds less bogus than the claim of Texas death row inmate Cesar Fierro. Fierro, you may recall, claimed he signed a confession only after Mexican police, who were cooperating with the El Paso police, arrested his parents and threatened to torture them with a cattle prod.

In the more bogus case, the Fierro case, it turns out Fierro was telling the truth. Even the Texas Court of Criminal Appeals finally accepted his claim as true and accepted that the police had perjured themselves to help secure the conviction. Fierro remains on death row, however, because the TCCA declared the extorted confession and subsequent perjury to be "harmless."

Johnny Frank Garrett provides another sad example. He was probably innocent but certainly executed. He too was convicted based in part on a confession he claimed he never made. From the most popular post I have written for this blog, Actual Innocence: Johnny Frank Garrett and Bubbles the Clairvoyant:
Garrett confessed, at least according to the police, without being recorded, after asking for an attorney, but then refused to sign the confession they had typed up, and denied making the confession.
The problem in these cases, and in innumerable other cases, is that the police failed to properly secure the confession evidence by recording the interview / interrogation. It is unconscionable that police continue to conduct interviews and interrogations without recording them. The DNA equivalent would be to have the police merely assert that the DNA matched rather than taking the bother to document and preserve the test results.

The Fierro case (and possibly the Garrett case) proves that some police will go to extremes to extract a confession if unmonitored. They will be undaunted by any thought that their victim will claim coercion or falsification. Even the Fifth District Court laughed off such a concern. They noted that had Hernandez decided to testify, "his credibility likely could be impeached. It would have been Hernandez's word against that of two officers."

The appellate courts are party to coerced and falsified confessions because they don't insist that the interview evidence be preserved, because they automatically believe the police rather than the defendant, and because they declare even proven cases of coerced confessions to be "harmless."

While I suspect that Rodrigo Hernandez is factually guilty of murder, I nonetheless oppose his execution. Given the egregious police behavior regarding the confession, I refuse to stand mute.

Addendum: This story becomes even more troubling. See my follow-on post The Execution of Rodrigo Hernandez.


Mike farrell said...

Very interesting post, I think we can certainly agree that the sentence is abhorent and should be abolished not just for hernandez but for all.
Thanks for quoting from my blog, just thought I would confirm (though I suspect you know) I am not the Mike Farrell from M*A*S*H but Mike Farrell a law graduate from the UK.

Alice in [a not so] Wonder[ful] Land said...

Thought provoking. State sanctioned murder should always be opposed and I add my voice to yours.

tsj said...

Mike "Not from Mash" Farrell,
My apology. I did indeed think you were the actor. The actor, as you know, is also a death penalty abolitionist. Hence my confusion.

Had I bothered to look at the upper right corner of your blog, I would have noticed your picture with your name nearby, but mea culpa.

I'll correct my post accordingly. I was unfamiliar with your blog (LawBlogOne) previously, but I'll now be checking in on occasion.

Anonymous said...

Anonymous said...

Minutes before Rodrigo Hernandez, 38, was executed for the 1994 rape and murder of a single mother in San Antonio, he reportedly confessed to that killing and the 1991 slaying of a homeless woman in Grand Rapids, Mich., to a Texas Ranger, Michigan authorities said.

He agreed to talk to a Texas Ranger assigned to the Texas Department of Criminal Justice's Huntsville unit as the state prepared to lethally inject him Thursday evening, according to a Kent County, Mich., news release.

Hernandez was executed for raping and strangling Susan Verstegen, 38, but while he was on death row, authorities in 2009 determined his DNA matched evidence from the 1991 shooting death of Muriel Stoepker in Michigan.

Hernandez had retracted a confession he signed in 2002 in the Verstegen case and up until Thursday had denied killing either woman. He told a San Antonio Express-News reporter weeks before his execution date that he'd had sex with Verstegen the night of her death but claimed someone else killed her, although detectives had matched his DNA to evidence from the scene of the slaying.

Just before his execution, though, Hernandez “admitted to his involvement in the 1994 homicide of Susan Verstegen in San Antonio,” the Kent County news release states.

Stoepker, 77, was shot to death in a parking garage at Grand Rapids Community College.

In a recent letter to an Express-News reporter, Hernandez wrote that he'd paid Stoepker for a sexual favor that night but maintained he did not kill her. That story also changed as his execution drew near.

“Hernandez admitted he shot and killed Muriel Stoepker after he paid her for a sexual favor,” the Kent County news release states. “Hernandez claimed the gun he had in his possession went off accidentally.”

The Texas Rangers would not confirm the death-row confession Monday, but a Texas Department of Criminal Justice spokesman said Hernandez did speak to a Ranger before the execution.

Read more:

tsj said...

I address that second unrecorded confession in a follow-on post.

Read more, as you say:

Anonymous said...

Here is the recorded confession you asked for.

tsj said...

Thank you for the link. I'll post about this in a week or so.

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