Hank Skinner and Codeine

The nearly 844 pages of the Hank Skinner's post-conviction evidentiary hearing is chock full of interesting tidbits. I'll mention a few of them here, and save others for later.

(Translation: I haven't posted in a couple days because I'm trying to finish the second book. I need a quick post to tide me over until I put up the second part of my response to Lynn Switzer's position paper explaining why she refuses to release the DNA. Her position is presented here. The first part of my response is here. The next part of my response is still rattling around in my head.)

INTERESTING ITEM #1:

Hank Skinner never confessed to killing Twila, Elwin, or Randy. I'm not saying he never confessed publicly. We all know that. I'm talking about behind the scenes, when alone with his attorney. Even when things were at their bleakest and Hank was at his weakest, he maintained his innocence. I take you now to where his court-appointed trial attorney, Harold "Fiscal Foibles" Comer was being questioned by his appellate attorney about that very issue:

Q Mr. Comer, did Mr. Skinner at all times while you represented him maintain his innocence?
 

A Yes, he did. He did maintain his innocence.
 

Q And did he maintain his innocence with you, and I'm asking about in confidential communications did he ever indicate to you that he was guilty of the crimes?
 

A No, he didn't.

Remember this brief testimonial exchange when Comer and others leave the impression they have some inside knowledge of Hank Skinner's guilt or innocence, that there is some deep, dark secret out there they can't share with us because of attorney/client privilege.

INTERESTING ITEM #2

This one has to do with Hank's ingestion of codeine that night. Hank has given various accounts of how he might have ingested it, but I've come to believe that Hank has little clear recall of the events that evening. That was, after all, his defense: he was unconscious / stuperous / incapacitated / delirious due to a potentially fatal level of alcohol and codeine in his blood. The lab tests back up the very high levels of those substances.

With that in mind, consider the following testimony, again taken from the questioning of Harold "Ed Woods" Comer. This was his response to a question about whether he read a letter Hank sent to him about being allergic to codeine. There will be a pop quiz at the end, so read the rambling response carefully. There is significant content buried within.

Well, as you say, he's a prolific letter writer, and when I say I didn't read them all, I would read over them or give them what attention I could with the time that I had, but I found that Mr. Skinner's letters would have a multitude of irrelevant or insignificant matters, but then he might have a gem right in the middle such as maybe perhaps this that I overlooked, because I don't recall, even though this letter is here, of having read it to the extent that it would cause me to think that it would be important to have Dr. Lowry or the toxicologist review the effects of an allergic reaction to Codeine, and I probably assumed, well, an allergic reaction, that could take many forms, unknown, and then the process was -- Let me answer your question. Number one, I may have not read it. Number two, if I did read it I wasn't sure that him having an allergic reaction would have anything significant to do with our defense of the case, so in either event I didn't -- as I recall, I didn't advise Dr. Lowry that he might be allergic to Codeine. I know on the first page it seems he wanted to attack the lab report because it said that he had Codeine and he said he didn't have Codeine, that he was allergic to Codeine, and of course, Codeine was -- an ingestion of Codeine that was shown by the state lab was part of -- a significant part of Dr. Lowry's opinion that that amount of Codeine, together with alcohol, could result and probably did result in Mr. Skinner not being able to have the physical coordination to commit the acts, so either I didn't read it or I read it and didn't give it any particular significance and I simply -- since I had, maybe not at that point (inaudible) and we had Dr. Lowry's testimony relating to Codeine ingestion would have caused him to not be able to participate in the crime.

Here's the quiz: What portion of that rambling response is exculpatory? In other words, what portion of that response supports Hank's claim of innocence? Take a moment. Take two if you wish.

Okay, here's my takeaway:

I know on the first page it seems he wanted to attack the lab report because it said that he had Codeine and he said he didn't have Codeine, that he was allergic to Codeine, ...

That's a big deal. Others have claimed (and I left open the possibility) that Hank ingested the codeine after killing Twila, Elwin, and Randy. He could have done that, so the theory goes, to make it seem as if he had been too incapacitated to have killed three people.  However ...

I no longer consider that a possibility. If Hank Skinner ingested codeine after the murders to provide himself a pharmaceutical alibi, he would not have been surprised to learn they found codeine in his blood, and he certainly would not have wanted his attorney to challenge the test.

Post Script:

This tiny exercise of finding a nugget of information in a single rambling paragraph, after being tipped off that something is there to be found, provides a small sense of what it's like to pour through hundreds of documents, some of them thousands of pages long, seeking nuggets of truth without knowing any are there to be found. I can't imagine how anyone would be interested in forensic data mining.

An Unexpected Touch of Sympathy for Ronnie Lee Gardner

Early this morning, at twenty minutes past midnight, Ronnie Lee Gardner was executed by a Utah firing squad. Plenty of other sources will provide details of the execution. I'll pass. Instead, I'll write of the crime itself, present a (nearly frivolous) Actual Innocence Scorecard, and let slip a surprising reaction to this case.

From Wikipedia, we learn a little.

Gardner murdered bartender Melvyn Otterstrom in 1984; during his trial for this crime in 1985, he attempted escape, killing attorney Michael Burdell in the process.

I wanted more. It would be difficult to find out much about the crime itself, however, by searching Google or Bing or any of the standard search engines. Those searches lead to a sea of articles about the execution itself. I wanted to know about the crime itself.

I searched instead using Google Scholar. Appellate decisions sometimes provide a good factual summary of the case. (Google Scholar is another free service. Go to Google, select "more" from the top left menu, select "Scholar" from the dropdown menu, click the "Legal opinions and journals" button.) In my search the first hit was Gardner v. Galetka. That's an adverse ruling on one of Gardner's appeals. It informed me that I should check Gardner v. Holden for a good recitation of the crime details. Gardner v. Holden was the third hit in my search. I opened it and viola: details of the crime. I present them below.

The facts developed at the trial and at the hearing on the petition for post-conviction relief are as follows: On April 2, 1985, Ronnie Lee Gardner was transported from the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City for a pretrial hearing on a second degree murder charge. As Gardner and his guards entered the courthouse basement, a woman handed Gardner a gun. The guards exchanged gunfire with Gardner, shot him through the lung, and then retreated from the area. In attempting to escape, Gardner entered the archives room, where he saw two attorneys, Robert Macri and Michael Burdell, hiding behind the door. Gardner pointed the gun at Macri and cocked the hammer of the gun. Burdell exclaimed, "Oh, my God!" Turning, Gardner shot and killed Burdell.

Gardner then forced prison officer Richard Thomas, who was also in the basement, to conduct him out of the archives room to a stairwell leading to the second floor. As Gardner crossed the lobby, he shot and seriously wounded Nick Kirk, a uniformed bailiff. Gardner climbed the stairs to the next floor, where he took hostage Wilburn Miller, a vending machine serviceman. As Gardner exited the building, Miller broke free and escaped. Outside, Gardner threw down his gun and surrendered to waiting police officers.

Gardner's attorneys, brothers Andrew and James Valdez of Salt Lake Legal Defenders Association, were to meet Gardner that day at 9:00 a.m. for the pretrial hearing. Andrew Valdez was walking toward the courthouse when he saw Gardner go down to the ground. As Andrew ran across the street, he could see that Gardner was bleeding from the chest. Andrew spoke with Gardner and then left. James Valdez arrived at the courthouse soon after. He immediately approached Gardner and asked him if he was all right; Gardner responded that he was in pain.

Gardner was later transported to the University Hospital. Wayne Jorgensen, a prison officer assigned to guard Gardner at the hospital, testified at trial that Gardner told him he shot Burdell because he thought Burdell looked as if he would jump on him. According to Jorgensen, Gardner also declared that he would have killed anyone who tried to stop him from escaping.

Both Andrew and James Valdez represented Gardner at trial. The thrust of the defense was that Gardner was in such pain and physical distress after he was wounded that his shooting Burdell was only a reaction and therefore the killing was unintentional. In preparation for trial, defense counsel spoke with the emergency room doctors who treated Gardner. The doctors told counsel that Gardner was not in shock when he came into the emergency room, did not have excessive bleeding, was lucid and demanding, and was aware of the situation.

Robert Macri testified at trial that after Gardner shot Burdell, Macri ran around the door and closed it behind him as a shield. However, at the preliminary hearing, Macri testified that he could not remember how the door shut. After the preliminary hearing but before trial, unknown to either the prosecution or defense counsel, Macri underwent hypnosis to help him remember how the door shut. Macri could not recall that detail while under hypnosis but asserted that while driving to California some months later, he suddenly recalled that he had shut the door. In all other respects, Macri's testimony at the preliminary hearing and at trial were the same. It was at the post-conviction proceeding while Gardner appeal was pending that defense counsel first became aware that Macri had been hypnotized prior to trial.

At trial, Gardner took the stand and testified on direct examination that he had been convicted of various crimes, including crimes of violence. Defense counsel elicited this information, according to the testimony at the habeas hearing, because he believed that the prosecution would use those convictions to impeach Gardner and he wanted to "steal the prosecution's thunder."

Then I searched for information regarding Gardner's crime against Melvin Otterstrom, I came across an excellent six-page article by Amy Donaldson from The Deseret News: Crime and Punishment For Ronnie Lee Gardner. I encourage you to read her entire article. I quote below just her version of the shooting itself.

On April 2, 1985, [Gardner] was walking into the old 3rd District Court in Salt Lake City about 8:45 a.m. when a woman either pressed a gun into his hands or he retrieved a gun that she had taped to a drinking fountain. Those details vary, depending on whom you ask. Immediately, an officer yelled, "Run! He's got a gun!"

While one officer ran out of the building, another opened fire on Gardner, hitting him in the shoulder. He ducked into a records room, where he reportedly said, "They hit me! They got me! I've been hit bad!"

Gardner pointed the gun at attorney Bob Macri, who stood next to his friend and colleague Michael Burdell. Macri testified that he thought it was an April Fools' joke as Gardner first pointed the gun at him and then moved it to Burdell.

As Macri ducked and ran out, Gardner shot Burdell in the eye, killing him.

"As I went out the door, the gun went off," Macri testified in 1985. "I left screaming, 'Police! Help! Murder!' I lost control at that point, I think."

While Gardner continued to insist that some details of that day were hazy, he did have to pull back the hammer on the revolver to shoot Burdell. He fired twice at the lawyer, who was in the basement doing pro-bono work for his church.

Gardner ran out of that room and into Salt Lake County sheriff's bailiff Nick Kirk. Kirk had heard about the shooting and ran down five flights of stairs to "protect his judge" — James Sawaya. When Gardner saw him, he shot him in the stomach, sending Kirk to the floor. He walked past him and into the stairwell Kirk had just exited. He then ascended to the second floor of the courthouse. He aimed the gun at a man filling a candy machine and asked for a ride. As the two navigated the hallway leading to the doors, the man jumped out an open window, leaving Gardner bloodied and alone with one bullet remaining in his gun.

Gardner surrendered to police on the lawn of the courthouse after dropping the gun and yelling that he was unarmed.

There is no question that Johnnie Lee Gardner murdered Michael Burdell. I scored him at zero. I include my Actual Innocence Scorecard to the right of this paragraph. It was almost a frivolous exercise, but not quite, I hope.

My little exercise reminded me once again that the members of our law enforcement community face risk routinely as they try to protect us from those who would do us harm. I don't want to lose sight of the noble work they do, even as I fault them when I believe they may have wrongfully prosecuted, convicted, and even executed an innocent person.

My exercise reminded me also that matters are never as simple as they seem. I have no doubt that Johnnie Lee Gardner was a murderer. I won't dispute the value of his execution or add to the debate about the propriety of the firing squad. I find it all very sad though: two lives cut short.

Michael Burdell's life ended in the archive room of the courthouse that day as he was working pro bono to help his church. It ended when Johnnie Lee Gardner shot him in the eye, for no good reason.

Johnnie Lee Gardner's life ended much earlier, I argue, due to reasons too complex for me to comprehend. As I completed his Actual Innocence Scorecard, I found myself doing something I had not previously done. I made excuses for him when filling out the Assessment portion. Amy Donaldson's article, it turns out, provided far more than the details of the shooting. She told of Gardner's early life, and of his final acceptance of what had happened to him, who he had become, and what he had done. Her writing caused me to assess the case against Gardner as follows.

No one disputes Ronnie Lee Gardner murdered Michael Burdell. As time passed, even Gardner gave up on his excuses that he was in too much pain at the time to be responsible for the shooting, or that the victims had threatened him.

It seems though that Gardner never had a decent chance at life. Found undernourished, wandering the streets in a diaper, at age 2. Child welfare workers found his home life so distressing, they filed a "failure to care" petition against his mother, a rare move at the time. Gardner, though, was left in the care of his mother, who had taken to wearing his step-father's belt around her neck as a visual warning to her children. Sexually abused for the first time at age 5 by an older sister and her teenage friend. Introduced to sniffing glue and huffing gas at age 6. Addicted to drugs by the time he was 10. Permitted by his parents to sniff glue and drink alcohol. Place in a mental hospital, though he was not mentally ill. By age 11, he'd been in detention 12 times. Sexually molested and trained in the ways of crime by the two male "role models" in those institutions.

I'll leave it to you to decide if Ronnie Lee Gardner had a fair chance at life. I'll leave it to you to decide if you could have done any better.

Within a Hair's Breadth

If testing shows the hair came from Kerry Dixon, then Texas will be the first state proven by DNA testing to have executed an innocent man. Many people would respond that The Despicable Claude Jones got only what he deserved for his other greivous offenses, but that wouldn't get Texas off the hook. Texas would have executed a man (despicable though he was) for a crime he didn't commit.

On 11 June, Judge Paul Murphy ruled that Texas must release the critical 1" hair segment to those who would have it tested. No word yet whether Judge Murphy's decision will be appealed. If appealed, matters could drag on for a bit. If not, testing might be completed in relatively short order.

Given that Rick Perry is already feeling the wrongful execution walls closing in around him, due to the execution of Cameron Todd Willingham and the near execution of Henry Watkins Skinner, this latest ruling adds to the Governor's stess level somewhat. Click here to see how well he's handling it.

The Last Words of Johnny Frank Garrett

Way, way, way back on April 16, I posted Actual Innocence: Johnny Frank Garrett and Bubbles the Clairvoyant. That post has turned into the most frequently hit post of this blog. Perhaps it's difficult to resist any story having a cameo appearance by Bubbles the Clairvoyant. Alternatively, the interest may have been peaked by Johnny Frank's position at the top of my slowly growing list of those I have scored as possibly innocent while in Search of the 54. I repeat that list here, now adding The Surprising Case of The Despicable Claude Jones and The Troublesome Case of Lamont Reese.

Johnny Frank Garrett, 91

David Wayne Spence, 90

Robert Nelson Drew, 84

Carlos DeLuna, 83

Odell Barnes, 69

Lamont Reese, 53

Claude "The Despicable" Jones, 52

Ruben Cantu, 43

Leonel Torres Herrera, 11

Melvin Wayne White, 0

Reader Michael H. Fox of The Japan Innocence and Death Penalty Research Center has commented on that post and has questioned one aspect of the story as told. I present his comment below, in its entirety.

I have just seen the documentary for the second time. It is excellent, but I wonder if the director has sensationalized/created quotes that are not factual. One of the film's underlying premises is that the executed boy cast a curse on his antagonists and gave a last statement saying that "all of them could kiss my everlovin' ass." But the book "Texas Death Row," available on Amazon, which details the crimes, personal data, last meals and final statements of everyone executed since 1977, shows no last words or statement for Johnny. If the director or anyone else would like to correct what I perceive as fictive fluff, I will stand corrected. Still I recommend the DVD.

Michael H. Fox is correct in that Texas does not list any final words for Johnny Frank Garrett. You can see that by examining the web site on which Texas presents the last words of those they have executed since they were allowed to start once again in 1976. Johnny Frank is number 44 on that list, placing him near the bottom, since the most recently executed are near the top. As you can see, they have no last words recorded for him.

That list, however, is based on what the person to be executed said while in the death chamber after being given an opportunity to make a last statement. A fair number of individuals executed prior to May of 1997 have no last words recorded, while almost all those executed after May of 1997 have last words recorded. I suspect the missing last words for some of the early cases had more to do with procedural or recording issues rather than a reluctance to speak on the part of the convicts. With respect to Johnny Frank, I have no  way of knowing whether he spoke or chose to remain mute.

My sense of the documentary was that they used words from Garrett's last interview as his final statement. They did, however, portray the words as if spoken from the death chamber. Now I have to wonder if the producers had some insight into what Johnny Frank did say while in the death chamber, and Texas declined not to record it because he said "ass," or for some other equally valid reason. While I'm unwilling to accuse the producers of "fictive fluff", I can't dispute Fox's suggestion they are guilty of such offense.

I'll add that being found guilty of "fictive fluff" is not good when you are trying to convince people you are being truthful with them. Personally, I'm contrite to the extent I have contributed to perpetuation of possible fictive fluff. I've included the YouTube trailer for the DVD video below. You can hear for yourself at the beginning of the trailer how they present his final statement.

I thank Michael H. Fox for his comment, and I credit him for his observation, his skepticism, and his use of the phase "fictive fluff." I suspect also that he could amaze us with his knowledge of the Japanese judicial system. I have read only a small amount about it, but what I have read caused me cultural surprise, shock being too strong a word.

I close with a note to him. I will be pleased to link to a good summary or to directly post text of your choosing if you care to inform readers of this blog about the Japanese judicial and capital punishment system.

Contacting Kareema

In my last my last post, The Troublesome Case of Lamont Reese, I invited you to join me as we investigate the case of Kareema Kimbrough. It seems one of the first things we need to do is contact Kareema and see if she is even interested in our help. If she is, we will be able to create an initial contact list of people to talk to. Hopefully, those contacts will lead to documents which we can review. First things first however.

I took it upon myself to contact her. I did so using an online service call JPay. For $0.42 per page, I sent her a one page letter. The letter will be printed somewhere on the Texas side of the transaction, and delivered to her tomorrow or the next day.

She may have difficulty contacting me. I'm guessing she is not allowed access to the internet or email. I'm reluctant at this point to give out my home address so that she can snail mail me. I have given out my home address to an inmate before, but that's not my starting point. I provided my phone number instead.

Inmates are frequently allowed to place pre-paid calls. Those receiving the calls will be informed it's from an inmate and will have to affirmatively accept the call before either party can hear the other. The phone rates for inmates, however, are substantially higher than they are for those of us on the outside, and inmates have very little money. Typically, I will provide an inmate money to cover the cost of the phone calls, but that too has to be arranged.

No matter how you try to work it, the bit-rate between anyone on the outside and anyone on the inside is very low.

I include below the body of my introductory letter. Please don't  take offense if I was willing to share my phone number with a convicted murderer but not willing to share it with you. I'll let you know if and when I get a response.

Ms. Kareema Kimbrough,

I am interested in the issue of wrongful convictions. I have nearly completed my second book in a planned series of ten books intended to improve our jury pool. I call the series The Skeptical Juror. I host a blog by that name as well.

I have been reviewing each of the 450+ executions in Texas since the state re-instituted the death penalty. I am paying particular attention to those cases where I believe the person executed may have been factually innocent. I took special note of the case of Lamont Reese recently primarily due to the plea made by Michael Toney back in 2004. (I was saddened to learn that Michael was exonerated only to die in a car crash a month after his release.)

Compared to the other cases I have looked into, there is very little information to be found on the internet regarding Lamont Reese. I have no way of knowing, therefore, whether or not he was factually innocent. His case, however, has the telltale markings of a wrongful conviction.

Normally I would simply report on such cases and move on. There is not much I can do once a person has been executed. Lamont's case is different than most, however. His case is your case. If he was factually innocent, then so too must you be. And that is why I write.

If you would like me to look into your case with whatever feeble resources I can muster, I will do so. Understand that I am not an attorney, nor am I a private investigator, nor am I a journalist in a conventional sense. I am merely a citizen that has managed to help a couple people so far. I make no promises whatsoever. I offer only to look into your case if you would like me to do so, and only if you are willing to speak with me.

If you are interested, email me (or have a friend email me) at skepticaljuror@gmail.com. Alternatively, you can call me directly at ---.---.----.  That's in California, so I am two hours ahead of you. If you placed a call in the evening, there is a decent chance I would be at home to accept it.  Once we make initial contact, we can devise some reasonable means of communicating with one another.

Regards,

[electronically signed]