Monday, April 30, 2012

The Impending Execution of Anthony Bartee

Anthony Bartee sits on death row awaiting execution by the people of Texas. He is scheduled to die on 2 May. I offer a summary of the crime from the adverse opinion of Bartee v. Quarterman (2008). As I am apt to do, I have replaced each occurrence of the term "petitioner" with Bartee's name.
On August 15, 1996, Anthony Bartee telephoned his acquaintance Heidi Munoz and informed her he planned to "ace some white dude out." Munoz interpreted this remark as indicating Bartee planned to rob and "get rid of the person in question, whom Bartee indicated was named "David." When Ms. Munoz refused Bartee's request to assist in this endeavor, Bartee asked for the phone number of Ms. Munoz's ex-boyfriend, Joey Banks, and indicated he planned to seek Mr. Banks' help. During the same telephone conversation, Bartee also unsuccessfully solicited the assistance of Ms. Munoz's friends Nadine Berlanga and Stella Suarez. 
At some point during the summer of 1996, Bartee telephoned Joey Banks and requested Mr. Banks' help in robbing and killing someone who lived in the same neighborhood where Bartee stayed and who, Bartee informed Mr. Banks, had "some gold cards and a motorcycle" Bartee wanted. When Mr. Banks indicated he would not help, Bartee told Joey Banks he would do it himself. 
Later on that same date, Bartee arrived at Ms. Munoz's apartment riding a motorcycle which Bartee said he had acquired through a lawsuit. Bartee gave Ms. Suarez a ride on his motorcycle but Ms. Munoz declined Bartee's invitation for a ride. Although Bartee said he was carrying a gun, Ms. Munoz never saw one. 
The following morning, on August 16, 1996, Bartee approached two employees of a bowling alley located near Bartee's parents' residence and informed them he owned the Harley Davidson motorcycle they had found parked behind the bowling alley. 
Later that same date, Bartee drove the Harley motorcycle to Corpus Christi, Texas, where he met up with his acquaintance Macedonio Gonzalez. Bartee informed Mr. Gonzalez that he had traded in two motorcycles to acquire the new Harley. Bartee also informed Mr. Gonzalez Bartee had seen a friend of his shot in the head by two members of the "Ace of Spades" gang. Bartee never informed Mr. Gonzalez that the motorcycle belonged to Bartee's murdered friend. A few days later, Bartee returned to San Antonio but left the new Harley in Macedonio Gonzalez's custody, telling Mr. Gonzalez he would return to pick it up. When Bartee did not return after several weeks, Mr. Gonzalez contacted local law enforcement authorities in Corpus Christi, who took custody of the Harley. A Corpus Christi homicide detective testified at Bartee's trial that, on August 26, 1996, he took possession of a motorcycle from Macedonio Gonzalez which he identified as the same motorcycle reported stolen in connection with the murder of David Cook in San Antonio. 
On the morning of August 17, 1996, police and David Cook's family members discovered the body of David Cook inside Mr. Cook's locked residence in San Antonio, Texas. An autopsy revealed Mr. Cook had been fatally shot twice in the head and stabbed once in the shoulder. At the crime scene, police discovered: (1) a slug which fell from the face of David Cook as his body was rolled over by personnel from the medical examiner's office, (2) a second slug which had passed through a wall, penetrated the rear of Mr. Cook's refrigerator, and come to rest therein, and (3) a pair of spent shell casings and several live 9 mm rounds. A firearms expert testified at Bartee's trial that the spent round, shell casings, and bullet fragment recovered from the crime scene were all consistent with 9 mm bullets that had been fired from the type of handgun Mr. Cook owned but which was missing from the crime scene following Mr. Cook's murder. Both David Cook's 9 mm pistol and Harley Davidson motorcycle were missing from his residence. 
Several members of David Cook's family described and identified a photograph of a red Harley Davidson motorcycle owned by David Cook which was missing from Mr. Cook's residence following the discovery of David Cook's body. Heidi Munoz identified a photograph of David Cook's Harley Davidson motorcycle as similar to the one driven by Bartee when he visited Ms. Munoz's apartment late on the night of August 15, 1996. Each of the two bowling alley employees who encountered Bartee the following morning identified the same photograph of Mr. Cook's motorcycle as the one Bartee claimed as his own. A friend of Bartee's who resided in Corpus Christi identified the same photograph of David Cook's motorcycle as the one Bartee drove to Corpus Christi in August, 1996 and claimed as his own. 
On August 20, 1996, shortly after his return to San Antonio, Bartee gave San Antonio police a written statement in which he claimed to have no knowledge whatsoever of David Cook's murder. 
On August 30, 1996, while in custody on an unrelated charge, and after having been informed that police had recovered David Cook's missing motorcycle, Bartee gave San Antonio Police a second written statement in which he claimed: (1) he had been present at David Cook's home at the time of Mr. Cook's fatal shooting, (2) he had witnessed two local gang members he knew only as "Snake" and "Throw down" enter Mr. Cook's residence and escort Mr. Cook to the back bedroom, (3) he then went to the garage and sat down on Mr. Cook's motorcycle, (4) suspecting foul play was about to occur, he started Mr. Cook's motorcycle, and (5) when he then heard gunshots, he fled the scene on Mr. Cook's motorcycle out of fear for his own safety. 
In following weeks, Bartee telephoned Heidi Munoz and one of Ms. Munoz's friends, claimed to have had no involvement in David Cook's murder, and urged them both to claim they had no knowledge of anything relating to David Cook's murder or of the motorcycle Bartee was riding the night he visited Ms. Munoz's apartment. 
The guilt-innocence phase of Bartee's capital murder trial commenced on May 11, 1998. 
After presenting the evidence outlined above, the prosecution rested on May 14, 1998. 
The defense then called a neighbor of David Cook who testified: (1) he heard what he believed was a loud motorcycle take off around ten p.m. on August 15, 1996, and (2) very shortly thereafter, he heard automotive tires squealing. The defense also presented a second neighbor of David Cook who testified she witnessed a white vehicle with two black stripes squealing its tires as it left David Cook's driveway around 10:45 p.m. the evening of the murder. The defense then rested. 
The prosecution then called in rebuttal a third neighbor of David Cook who testified, on the evening of David Cook's murder: (1) sometime after 11 p.m., he was visited by a drunken friend who parked his car directly across the street from David Cook's home, (2) he argued with his inebriated friend, who was driving a big white car with dark blue stripes, and (3) his friend later left the area, first by backing his vehicle into David Cook's driveway and then squealing his tires as he left the area at a high rate of speed. ...
On May 15, 1998, after deliberating less than five hours, the jury returned its verdict, finding Bartee guilty of capital murder, as charged in the indictment.
Bartee recently received a stay of execution so that hairs found in the victim's hand could be tested for DNA. The defense argued that if those hairs belonged to someone other than Bartee of the victim, then that indicated someone other than Bartee had committed the murder, just as Bartee claimed. After long and (in my opinion unconscionable) delays, the DNA testing was completed. All hairs found in the victim's hand belonged to the victim himself.

I oppose the execution of anyone who might be factually innocent of the crime for which he is scheduled to die. In all other cases, I stand mute.

In the case of Anthony Bartee, I stand mute.

May 2, 2012: Bartee's execution was stayed by a federal judge. The defense wants DNA testing of  cigarette butts and drinking glasses. Though the State appealed the stay immediately, and though the Supremes quickly refused to hear Bartee's "other" appeals, it seems as if the stay is good at least until midnight. I think the means that Bartee cannot be executed for at least a month. I believe the execution warrant is good only until midnight, and that a new warrant cannot set an execution without 30 days notice.

The Impending Execution of Michael Selsor

Michael Bascum Selsor sits on death row awaiting execution by the people of Oklahoma. His execution is scheduled for tomorrow. It does not seem as if he will survive the day.

I offer a summary of his crime from the adverse appellate decision in Selsor v. State (2000):
At approximately 11:00 p.m. on September 15, 1975, Selsor and Richard Eugene Dodson robbed the U-TOTE-M convenience store at 5950 33rd West Avenue in Tulsa. Selsor and Dodson entered the store, each armed with a .22 caliber handgun. Employee Clayton Chandler was working at the cash register. Selsor approached Chandler, pulled his gun, and demanded the contents of the register. Dodson located employee Ina Morris, who was restocking the walk-in cooler. Dodson pointed his gun at her and ordered her to get down. Morris replied, "You've got to be kidding me." Dodson then fired a shot striking Morris in the shoulder. 
Chandler loaded a sack with money and handed it to Selsor, who then shot Chandler several times in the chest killing him. Upon hearing the shots, Dodson emptied his weapon through the cooler door at Morris. Morris was shot in the head, neck and shoulder, but survived. Selsor and Dodson then fled. 
On September 22, 1975, Selsor and Dodson were arrested in Santa Barbara, California. Selsor confessed this and other crimes to Detective John Evans of the Santa Barbara Police Department. In his confession, Selsor admitted that before entering the store, he and Dodson had agreed to leave no witnesses.
During Selsor's first trial, he was found guilty and sentenced to life imprisonment. He appealed and won a retrial. During the second trail, he was found guilty and sentenced to death.

Selsor makes no claim of factual innocence. Instead, he based his most recent clemency plea on his remorse, the changes he has made to his life, and on the unfairness of being given the death sentence after initially being given life in prison.

I oppose the execution of any person who might be factually innocent of the crime for which they are to die. In all other cases, I stand mute.

In the case of Michael Bascum Selsor, I stand mute.

Michael Selsor has been executed by the people of Oklahoma.

A Jury of Your Peer

Reader Al (aka Guest Blogger Al) sent me an email this morning. He threw me a bone on my Documents Gone Wild post, then linked to an article he thought worthy of note.

Good post on the falsification of documents in PHIII's case. 

Check out this article below 

Al's link summarized the findings of an article in the most recent issue of The Quarterly Journal of Economics. Since no one wants to read such an egghead article in its entirety, or even a summary of an article, or even this summary of the summary of the article, I'm going to display a graphic from the summary that gets straight to the bottom line.

You may think that this reduction in conviction rate of black defendants stems from having blacks on the jury. As it turns out, that's not quite what they found. The eligible jury population in those counties was less than 5% black. When a jury pool contained at least one black person, it typically contained no more than one. And here's the kicker. The black person did not actually have to be selected as a juror to reduce the chance that a black defendant would be convicted.

Very interesting.

Given that I sometimes find very interesting things to be somewhat interesting, I tried to understand why such a relationship might exist, assuming that it does exist. Here's what the authors had to say:

Having established that the racial composition of the jury pool has a substantial impact on conviction rates, we consider a number of possible channels through which random variation in the composition of the jury pool might affect trial outcomes. Most obviously and directly, having at least one black member in the jury pool makes it feasible to have a black member on the seated jury. Black representation on the seated jury might affect trial outcomes not only through the jury deliberation and decision process but also by affecting how the case is presented and argued by the prosecution and defense attorneys. 
Adding black potential jurors to the pool can also affect trial outcomes even when these jurors are not ultimately seated on the jury. This indirect effect comes about through the jury selection process if attorneys on each side use their peremptory challenges to strike the potential jurors most likely to be hostile to their case.
The authors then explain (but not clearly though) how the attorneys might use their peremptory challenges to select or exclude the black person from the jury. The modified peremptory challenge strategies (they argue) cause both the defense and the prosecution to compose a jury less hostile to a black defendant.

It sounded to me pretty much like hog spittle. I wasn't ready to buy either their surprising conclusion or their explanation for their surprising conclusion. I was trying to poke a hole in either their study or their argument when I noticed that the average jury size in their study was 7.11 jurors.

What the hell?

That forced me to learn something new, yet again. (Will it never end?) You may or may not have noticed that the study was limited to two counties in Florida. You may or may not have known that Florida does not seat twelve people on its juries, not even on its criminal juries. It seats just six jurors, plus one or two alternates. Hence the 7.11 jurors, on average.

That sucks.

As my fingers danced furiously over my aging keyboard, I learned that the early part of the 1970's was a bad time for our jury-based justice system. In the 1970 case of Williams v. Florida, the Supreme Court of the United States of America narrowly ruled that the Bill of Rights did not demand twelve jurors, as common law had demanded for centuries. Six were just as good as twelve. Just as good. Absolutely just as good. No doubt about it.

[Uh, oh!]

Also in 1970, in the case of Johnson v. Louisiana, The Supremes decided that unanimous verdicts were also unnecessary.


And just in case anyone doubted their sanity, The Supremes reaffirmed their no-need-for-unanimity decision in 1972, via their decision in Apodaca v. Oregon


Welcome to the infamous slippery slope. Just how many jurors must find you guilty before the State can frog-march you off to prison, or to the gurney? Can a state use just 3 jurors? If so, do the three have to be unanimous?

Can the state try you with just one juror, by a jury of your peer? If your peer has multiple personalities, do they have to be unanimous?

Fortunately, The Supremes deslipperized the slippery slope in the 1978 case of Ballew v. Georgia. Georgia had ventured too far down the slippery slope, even for The Supremes. Georgia had taken a shine to convicting people with just five jurors. The Supremes said "Don't be ridiculous." Actually, according to the link, what they said was more along the line of:
The Court found that a trial by jury of less than six members violated the accused's right to a trial by jury as protected by the Sixth and Fourteenth Amendments. Justice Blackmun reasoned that small juries foster poor group deliberation. Group memory of the details of testimony, the ease with which group compromises can be made, and the desire of the group to be self-critical and reflective are all hindered as the size of the jury decreases. Blackmun also relied on statistical studies to claim that the risk of jury error increased with smaller juries.
Since even a non-Supreme-Court-Justice such as I can see that the summary would read just as well if it said "a jury less than seven members", you might guess that the Supremes used the opportunity to correct their screw-ups in Williams v. Florida, and Johnson v. Louisiana, and Apodaca v. Oregon.

But noooooo. As The Jury Expert explains:
Despite acknowledging "that the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members," the Court reaffirmed its decision in Williams.
I now make the tricky U-turn back to the original point of this article. I think the Duke study discussed earlier in this article may be adding to the body of empirical studies finding that small juries are not as likely to be just juries. Small juries such as those described in the Duke study are more likely to exclude minorities, and less likely to be self-critical and reflective.

Let me know what you think. Should we demand that juries are composed of twelve jurors and that the verdict be unanimous? If not, how many jurors should it take to convict or exonerate a defendant in a criminal trial?