The Impending Book about Rick Perry

Blogging will be light for the next two weeks. I have a self-imposed deadline of completing a Kindle book by the end of the month. Not only am I willing to share the proposed title with you, I'm going to give you an opportunity to chime in with improvements.

I guess I should begin by describing the nature of the book. I intend to write seven chapters. Chapter 1 will be an introduction to Rick Perry and his stewardship of the death penalty in Texas. The next six (possibly seven) chapters will each deal with a specific case of someone who was certainly / probably / possibly innocent, but who was nonetheless executed (or came within a day of being executed) while Rick Perry did nothing.

I guess I should then have a thought provoking closing chapter as well.

The Skeptical Spouse and I have been wrestling with a title. For a while now, the working title has been:

America's Executioner

She thought of it, and I liked it, and that's what I've been assuming as the title for a month now. We just finished speaking of the subject again. I think Rick Perry's name needs to be in the title, so I proposed:

Rick Perry: America's Executioner

or

America's Executioner: Rick Perry.

She grimmaced.

One of us (it's frightening that I already can't remember which one of us) suggested we put his name in the subtitle. A bunch of poorly formulated ideas came forth, such as

America's Executioner

Six Cases of Wrongful Execution under Rick Perry's Watch

She cringed.

Neither of us could come up with anything we liked. Suddenly she suggested, as a subtitle

Rick Perry's Grave Mistakes

I don't think she consciously realized the brilliance of using the adjective "grave." Now I really, really like the sub-title, and I really, really like the title, but I don't think they work together as Title / Subtitle. So let's give it a try.

America's Executioner

Rick Perry's Grave Mistakes

See what I mean? What we have here is two good titles and no good sub-title. The title should catch your eye and the sub-title should explain what's in the book. We have two eye-catchers and no explainer.

So now I wonder about this:

Rick Perry's Grave Mistakes

Six Cases of Innocents Executed

No grimace. No cringe. No Skeptical Spouse. She left the room a bit ago. Still, I think it's the best so far. The problem is I'm not writing of six (possibly seven) executions. I'm writing of four (possibly five) executions and two people who came within one day of being executed.

But I'm getting closer, no particular thanks to me. So I now solicit input from you, my clever and insightful readership. Which of the options seem to work? How might they be improved? Should we start over?

Do you have a brilliant idea for a book title, but no book to use it on? If you do, I have a book without a title.

I understand this is how Reese's Peanut Butter Cups got started.

The Impending Execution of Frank Martinez Garcia

Frank Martinez Garcia sits on death row awaiting execution by the people of Texas on 27 October. I think there is zero chance he will survive the day. I summarize the State's case against Garcia by excerpting from the appellate decision Garcia v. Thaler (2009). Throughout the excerpts, I've substituted the word "petitioner" with "Garcia" or "Frank Garcia" to make for easier reading.

On the morning of March 29, 2001, Frank Garcia fatally shot uniformed San Antonio Police Officer Hector Garza and Garcia's wife Jessica inside the home Garcia shared with Jessica, their children, and Garcia's parents. There is no genuine dispute about that fact. After subsequently firing several shots at others outside the Garcia residence, wounding one person, and causing damage to a nearby elementary school, Garcia surrendered to police and gave a formal, written statement in which he admitted to intentionally killing both officer Garza and Jessica. ...

The guilt-innocence phase of Garcia's capital murder trial commenced on February 4, 2002. In addition to the testimony summarized above, Garcia's jury also heard testimony from forensic and firearms experts regarding (1) the MAC-10 semi-automatic weapon and the Egyptian-made AK-47 assault rifle Garcia used to shoot Officer Garza and Jessica, (2) ballistics evidence about the shell casings and bullet fragments found at the crime scene, and (3) testimony regarding the blood, blood spatter, and other trace evidence recovered from the crime scene and Garcia's clothing. The foregoing testimony corroborated those portions of Garcia's written statement in which he admitted to having emptied both the semi-automatic pistol and assault rifle following his fatal shooting of Officer Garza and Jessica. The defense presented no witnesses or other evidence during the guilt-innocence phase of Garcia's capital murder trial. On February 8, 2002, after deliberating less than three hours, Garcia's jury returned a verdict of guilty.

From Footnote 1.

The autopsy of Officer Garza revealed (1) he died as a result of four gun shot wounds, each of which would have been fatal alone, (2) the four shots struck Garza, respectively, in the head, two in the back of the neck, and one in the abdomen, which penetrated the lungs and aorta, (3) the shot through Garza's chest was likely the first to strike him, (4) the shots to Garza's chest and head came from a non-high-velocity weapon, and (5) the two shots which struck Garza in the neck came from a high velocity weapon, exited through the skull, and caused massive damage to the brain and cranial vault.

The autopsy performed on the body of Jessica Garcia revealed (1) she died as a result of three gunshot wounds, only one of which would have been fatal alone, (2) the fatal gunshot struck Jessica in the left forehead, fractured her orbital area, and penetrated through the midbrain, (3) the two, non-fatal shots struck her in the right cheek and her chin, (4) all the gunshots which struck Jessica came from a non-high-velocity weapon, and (5) the latter two gunshot wounds likely struck Jessica while she was down on the floor.

From Footnote 2.

Several witnesses testified to having personally witnessed Garcia firing two different weapons at persons located outside the Garcia residence on the morning of the fatal shootings.

A friend of Jessica testified (1) an emotional Jessica called her on the morning of the fatal shootings and asked her to help Jessica move out, (2) after securing assistance from John and Rosario Luna, she rode with the Lunas to Jessica's residence, (3) Garcia's mother interfered with their efforts to help Jessica remove clothing and other personal items from the Garcia residence, (4) she overheard Jessica telling Garcia over the phone that Jessica was leaving him, (5) Garcia arrived at the Garcia home before the police and Garcia grabbed Jessica in a head lock and dragged her back inside the Garcia home, (6) moments later a police officer walked inside the Garcia home, (7) a few minutes after the officer entered the house, she heard three-to-four shots in rapid succession come from inside the house, (8) after a pause, she heard a second series of approximately three shots come from inside the house, (9) Garcia then emerged from the house, pointed a firearm, and fired several shots, at least a few of which struck their vehicle, (10) Garcia fired at her and John Luna as they attempted to flee the scene toward a nearby elementary school, (11) Garcia went back inside the house and she heard several more shots, (12) Garcia emerged from the house a second time holding a big rifle and fired that weapon, striking the truck behind which she was hiding, i.e., the same truck Garcia had driven to the scene, and (13) she saw Garcia chasing after John Luna as she fled for the safety of the school.

The then-vice-principal of the nearby Emma Frey Elementary School testified (1) she noticed a police vehicle in front of the Garcia residence when she arrived at school around 7:30 that morning, (2) she later noticed the police vehicle was gone when she saw Jessica outside the Garcia residence between 8:45 and 8:50, (3) around nine a.m. she was alerted to a problem by other staff, (4) as she exited the campus building near the Garcia residence, she saw a man later identified for her as John Luna running toward her who was yelling "Get out of here. He's shooting at everyone," (5) she looked toward the Garcia residence and saw a man in the yard holding a rifle, who then pointed it at her or in her direction, (6) as she and Luna attempted to flee away from the Garcia residence, she heard four shots, (7) the school custodian let her and Luna inside the school, (8) once inside the school, she climbed to the second floor, ordered the school locked down, telephoned school district police, and looked out and saw Garcia with the rifle in the front yard of the Garcia residence walking away from the school, and (9) subsequent examination of the school's exterior disclosed several indentations in the front doors, as well as a hole in a window screen that had not been present before the shootings.

The San Antonio Police Officer who arrested Garcia testified (1) he knocked repeatedly and announced himself before entering the Garcia residence, (2) he heard a box of bullets hit the floor and footsteps running his direction, (3) he heard a rifle racking and smelled gunpowder and blood, (4) Garcia came out and pointed an assault rifle at him, (5) when Garcia saw the officer's weapon, Garcia retreated, shouted "I give up," and threw down his rifle, and (6) Garcia thereafter offered no resistance.

In his five-page, formal, written statement executed only hours after the fatal shootings, ... Garcia admits he deliberately fired at officer Garza's head multiple times and then turned his weapon on his wife.

I find no one arguing that Frank Garcia is anything other than absolutely guilty of the crimes for which he is scheduled to die. The case, however, presents an interesting twist regarding Frank's mother. From a schizophrenic editorial in the San Antonio Express News, on 6/30/2001.

It was all about the grandchildren. Eustacia Garcia didn't want to lose them.

According to several reports, she was willing to let her daughter-in-law leave, just not with the children.

Jessica wasn't about to abandon her babies to the man who is alleged to have battered her for seven years, nor to the in-laws who'd let him.

No matter how we imagine that horrific situation, we cannot imagine Eustacia and her husband, Francisco -- who shared that same, small three-bedroom house -- weren't aware that Frank, Jr. beat Jessica. Often. Viciously.

According to a grand jury indictment, when Jessica started packing -- shortly after Frank, Jr., had left for work -- Eustacia tried to stop her. First, she called the police, but Veteran San Antonio Officer Hector Garza explained that Jessica had the right to leave, the right to take her own children with her.

So Eustacia called her son.

Jessica nearly escaped. The car was loaded. Reports indicate she was just gathering the children, just ready to leave when Frank arrived.

He is charged with shooting her to death.

He is also charged with the shooting death of Officer Garza, after Garza had responded for the second time that day.

This would not have happened, contends the Bexar County District Attorney's office, if Eustacia Garcia had just let Jessica leave, so they've charged her with voluntary manslaughter.

"Eustacia was aware of the circumstances. She was aware her son was violent, would be violent and that Jessica was trying to leave when Frank wasn't home in order to avoid violence. Knowing there was a substantial risk, Eustacia acted recklessly in calling Frank, Jr.," explains First Assistant District Attorney Michael Bernard.

That, in a nutshell, is the definition of voluntary manslaughter, "consciously disregarding a substantial and unjustifiable risk."

Why did Eustacia call her vicious, possessive, violent son? Didn't she think that at the very least, he'd beat Jessica?

For seven years, Eustacia allowed abuse to permeate her home. Perhaps she believed family unity must be preserved, no matter how painful the circumstances.

Perhaps she considered abuse a normal part of marriage. Maybe Eustacia was also a battered wife. But Bernard says there is "no indication that Eustacia was abused."

Some see Eustacia as a victim, accused of a crime because she tried to protect her family. This perspective assumes Eustacia thought Frank could prevent the children from leaving. It asks how she could have known her son would commit murder.

But family loyalty cannot supersede the dictates of common sense. If Frank had robbed a bank and Eustacia had driven the car, she'd be criminally responsible -- even if she'd planned a non-violent robbery.

In this case, we don't even have that assumption. Eustacia allegedly knew Frank had beaten Jessica before. Of course he'd beat her again. Obviously, violence often causes death.

By calling her son, Eustacia created the situation that killed Jessica. And for that, she must be held criminally responsible.

But before we condemn Eustacia completely, we should remember that she is a grandmother, terrified of losing her grandchildren, her living legacies, her immortality.

As we approach our end and wonder what will survive when we're gone, we realize the only thing that endures is life itself. The life we live through our children, and their children, for generations on end.

What would we do, to protect our legacy?

With respect to the propriety of executing Frank Garcia, I stand mute. With respect to charging his mother with manslaughter, I solicit your comments.

The next impending execution we will consider will be that of Hank Skinner. Prepare to be amazed.

Reader Response to My Offer and Challege

I previously made both an offer and a challenge to readers of this august blog to investigate a case and write it up as a post herein. Five people have taken me up on the offer and/or the challenge so far. Each asks that I keep their name anonymous, at least for now, I shall do so.

One person initially intended to look into the case of Charles Raby or Robert Pruett. After I mentioned that I  have transcripts, case documents, and an inside source for the David Wayne Spence case, the person seemed interested in taking on the overwhelming task of looking into that cases.

Reader Mols offered (in a comment) to look into the case of Reginald Clemmons. I asked her to email me, we have communicated a little about the case, and it looks like a really bad one. Really bad.

Three readers have agreed to independently look into the case of Preston Hughes III, as I requested in a recent post. I see no problem having multiple people look into the same case. I know if I were working in parallel with another investigator, I would want my investigation to be thorough and correct if for no other reason than my work would be compared to others.

One common thread among the volunteer researchers is that they are all busy. None of them offers a quick response.

Another common thread is that I gave them all similar advice on how to get started: gather information. I gave some suggestions on how they might find such information online. I also gave some general thoughts on how they might try organizing the information once they gather it.

One volunteer researcher recently wrote:

So in gathering testimony, evidence and so forth, accessing primary trial transcripts for free is limited to what is published in the appellate documents. I'm finding transcripts of the testimony given at the original state trial where he was convicted from secondary sources. Is this how you acquire testimony or is there some other way to get transcripts of the State trial without paying a boat load of money?

My short answer was "Welcome to the first gigantic hurdle." I offered to give a more complete response in a post, so here we go.

Regarding the following discussion of trial transcripts, I caution that I am not an expert, that the situation varies from state to state, that I might be wrong, and that what knowledge I think I have is probably out of date. With that in mind, here's what I think I know.

All trials in this country are supposed to be public, as stated in the banner to this august blog. It's from the Sixth Amendment. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ..."

You can go to any courthouse in this country and walk into any courtroom holding a trial and sit down a listen to what's going on. You may not participate, and you may not disrupt, but you can certainly listen. (Also, although it's not guaranteed by the Constitution, you can sit through many court procedures, such as a string of defendants taking plea bargains. I've seen that, and it's distressing. It seems as if some of these people are seeing their court appointed attorney for the first or second time, they have no idea what to do, they want to talk to their families, they're not allowed to. Instead they're assured by the judge if they don't take the plea they will be almost certainly be convicted and sentenced harshly. At least that's what I saw, and it pissed me off. I think I'm still a bit peeved. But I digress.)

Even though the trial is open and free to the public, the trial transcripts are not. In fact, the trial transcripts are difficult for most people to get hold of. Jurors are certainly not allowed copies of the transcripts in the jury room. In part, that's because the transcripts contain sidebar discussions and other discussions held out of the presence of the jury. The jury is not allowed to hear all that. Also, it takes time to for the court stenographer to transcribe the proceedings from that funny little typewriter they use to English text.

I'm not particularly surprised that the jurors are not allowed copies of  even redacted transcripts, though I think they should be. (What I find shocking is that many (I think most) jurisdictions do not allow jurors to even take notes. I've always been allowed to take notes, so I was shocked to learn that note taking is only allowed in some jurisdictions. The stated concern of the court is that the note-taking will distract the jurors from the testimony.  There is simply no way in hell, however, to remember accurately all that is said in court. I can't imagine deliberating the cases I deliberated within having twelve set of juror notes. Even with those twelve sets of notes, we frequently couldn't agree on what had been testified. But I digress.)

Even the people convicted or acquitted can't get trial transcripts for free, unless the court orders the State to pay for the transcripts. The court may or may not so order in the case of a retrial or a decision to appeal.

My understanding is, however, that all trial transcripts are ultimately public, but the public will have to pay for them. This money frequently, perhaps usually, goes to the court recorder as a fee for transcribing transcripts that would have otherwise been preserved only as the paper from that strange little typewriter thing they use. The cost is, as I recall, a $1.00 or $1.50 a page. It varies. Since the pages are formatted such that none of them contains a who lot of testimony, the transcripts consist of many, many pages. They cost a lot.

Sometimes, the court has copies of transcripts which have already been transcribed. They will allow you to copy them, for a fee. At one point, I wanted the transcripts from the Ramzi Youssef trial. (He was the mastermind behind the first World Trade Center bombing. I have a theory about that bombing that I wanted to pursue. Maybe I'll discuss that sometime in the future, but not now, because I don't want to further digress.) The transcripts existed at the courthouse in New York City, which is almost as far from my house as can be and still be within the continental U.S. I learned that I would be allowed to go there and copy them one page at a time using their copier for $0.25 per page. There were 15,000 pages as I recall. I was trying to figure out how many days it would take me to make the copies, and how much it would cost me to rent a room for several nights, and how much it would cost me to fly there, and get transportation from the airport. Then my head started to spin.

You won't be surprised to learn that I still don't have the transcripts for the Ramzi Youssef trial. If anyone has a copy and would like to send me a copy of your copy, that would be great.

I do have a number of trial transcripts which I have obtained for free in several fashions. I have a copy of the transcripts from the trial in which I held the jury out for eight days, forcing a retrial and the ultimate release of the defendant. The judge, to our amazement, ordered the State to pay the cost of those since the defendant was going to be retried. I studied those transcripts thoroughly, and I was surprised how much I had missed listening to the same testimony as a juror. I knew in great detail what the witnesses had said in the first trial, informed the defense attorney about witnesses who changed their testimony in the second trial, and helped prepare closing arguments in which we convinced the second jury that multiple State witnesses had perjured themselves.

I have a copy of the Bryon Case transcripts. I downloaded them from the site that opposes Byron's release. I have no idea how they got them.

I have a copy of the Michael Ledford transcripts. His mother sent them to me when I agreed to look into his case. I believe the court provided them for free because Michael appealed his conviction.

I have a copy of the transcripts from three trials associated with David Wayne Spence. I found them online after I had written briefly about his case. I downloaded them just in case. I'm now glad I did. Matters are picking up on that case. I have no idea, however, how I'm going to find time to go over all of them.

I have transcripts on some other cases too, as I recall. For a while, I was simply downloading transcripts whenever I came across them, just in case.

One way to write about a case using transcripts as a reference is to search for a case with transcripts. That's what I was doing when I stumbled across Byron Case.  Some people claiming innocence put up web pages having links to trial transcripts and other case documents. I consider that a good sign. It tells me they are not afraid of the data.  In Byron's case, I found one site claiming he was innocent and one site claiming he was guilty, and both had case documents. It was a gold mine, and the deciding factor for me looking into that case.

So there you go. More than you wanted to know about finding free trial transcripts for researching a case.  In summary, I think having the trial transcripts is way preferable to not having them. In fact, transcripts have been absolutely essential for my efforts to help in the one case past and the two cases present. If you want to work on a case that has free trial transcripts available, I suggest you search for a case in which one side or the other has placed the transcripts online for download.

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The Impending Execution of Christopher Thomas Johnson: My Analysis

I presented the case against and (best as I could) for Christopher Thomas Johnson here. If you have not read that post and the comments, you are unlikely to understand this post.

I almost didn't open deliberation in Johnson's case, since his guilt is abundantly clear. He not only admitted his guilt, he encouraged his own execution to the extent it seems almost as if he was pursuing suicide by State, as PolyWogg observed.

I am nonetheless pleased with my sagacity in opening the case to deliberation because of the quality of comments that followed.

Anonymous J is unwilling to stand in the way of a self-confessed murderer who volunteers for the needle. Sweet and to the point.

In what seems like a clear cut case, PolyWogg opens her discussion with "I see only five possible things to debate." I suggest readers elsewhere would find nothing to debate.

Simply Anonymous wonders whether the state had proven intent, then ponders whether it would be cruel and unusual punishment to sentence him to life imprisonment when he demanded to be executed. An interesting question.

English Observer wonders about mental health issues, suggesting that the State should have satisfied itself that Johnson was sane before it pursued his execution. (I suspect the State did have him examined, and the psychiatrist indicated Johnson knew right from wrong. That's about all it takes.)

And there was not a single, mindless "Let him fry and good riddance" in the lot.

In every case in which I sit as a juror, whether physically or vicariously, I look for weaknesses in the State's case. They have the burden of proof, even in a case such as this, and I refuse to relieve them of that burden. There are a couple issues in the case that attracted my attention.

Looking at what little timeline information is available, I see the mother went to bed after 1 AM, got up at 9 AM, and saw bruises on the baby. The doctor also noticed bruises on the child's body. Since it takes a while for a bruise to develop, the assault must have occurred at least in part some time before the bruise became obvious. As a juror, I would like to know how long it takes for such bruise to occur. I would also like to know if bruises can form postmortem. As I juror, a possibility hits me. The bruises were caused by an earlier assault.

The ME also said that the baby suffered 85 recent and separate injuries of great variety (and cruelty). How long would it take to inflict so many injuries, I wondered. At one every 6 minutes, that would be 10 per hour. That would take 8.5 hours of intermittent violence. If instead the injuries were inflicted at the furious rate of one every 6 seconds, that would be 8.5 minutes of unrelenting violence. Neither seems likely to me. I wondered a bit more if some of the injuries might have been pre-existing.

Also, Johnson stated that it was the hardest that he ever hit the baby. That sure sounds as if he had hit the baby previously.

At this point, I would suspect that the baby had experienced abuse earlier. I would also suspect that the mother could not have been ignorant of Johnson's violence towards her child. I would suspect there was more to the story than I was being told.

None of my musings, however, made any reasonable case that Christoper Thomas Johnson might be factually innocent of the crime for which he is scheduled to die. I therefore stand mute with respect to the propriety of his execution.

A Request Regarding Byron Case

Byron's application to Governor Jay Nixon for an absolute pardon is here.

Byron's accompanying personal letter to Governor Jay Nixon is here.

My amicus letter to Governor Jay Nixon in support of Byron's application begins here.

A site opposing Byron's release is here. That site has links to the trial transcripts and other case documents I used in my book The Skeptical Juror and the Trial of Byron Case.

If after reviewing the evidence, you believe Byron Case is factually innocent of murdering Anastasia Witbolsfeugen, I request that you join the hundreds of others who have signed Byron's online petition to Governor Jay Nixon requesting his release.

Thank you.