Before Last Execution, A Frenzied Legal Fight

Texas high court would not stay open past 5 p.m. for lawyers to file appeal

ByKevin Johnson <br> USA Today
February 18, 2009, 6:14 PM

Nov. 15, 2007&#151; -- Michael Wayne Richard was dressed for his execution in Texas' death house on Sept. 25 when the U.S. Supreme Court announced at 7:30 p.m. that it wouldn't postpone the convicted killer's lethal injection.

"I'd like for my family to take care of each other," Richard, wearing a white smock, matching pants and slippers, called out. "Let's ride. I guess this is it."

By 8:23 p.m., Richard, 48, was dead. He was the 42nd person executed in the USA this year and the 26th in Texas, the leading death penalty state.

Richard's case stands out. His execution for the rape and murder of a nurse in 1986 has become the latest flash point in the national debate over whether the death penalty is applied fairly. It followed a frenzied, behind-the-scenes legal fight that led to intense criticism of Texas' courts and confusion about the actions of the nation's highest court.

The U.S. Supreme Court, without comment, refused to intervene in Richard's execution — even though, hours earlier, the court had said it would use a Kentucky case to review questions about lethal injection.

The court's decision to take that case has effectively put executions on hold across the USA. Since allowing Richard's execution, justices have stopped the three next scheduled, including one in Texas. On Wednesday, a federal court in Florida joined 11 other state and federal courts in delaying a lethal injection. The postponements mean that Richard's execution is likely to be the last until the high court rules in the Kentucky case next year.

The legal chaos that played out in the hours before Richard's execution emerges in interviews with defense lawyers and state officials, along with court and prison documents.

As defense attorneys raced to finish last-minute appeals, they were derailed by maddening breakdowns of their computer system. Then, with the execution scheduled for 6 p.m., the state's highest criminal court decided not to extend its office hours past 5 p.m. — blocking Richard's attorneys from asking the state court to delay the execution until the U.S. Supreme Court ruled in the Kentucky case.

Just before Richard's scheduled execution time, defense attorney Greg Wiercioch says, the Texas attorney general's office gave him an ultimatum: The state would give Richard's lawyers six minutes to file a final appeal to the U.S. Supreme Court, or it would move forward with the lethal injection. The lawyers, still struggling with computer problems, barely met the attorney general's deadline to appeal to the Supreme Court.

Jerry Strickland, spokesman for Texas Attorney General Greg Abbott, acknowledges the office "urged (Richard's attorneys) to file any remaining appeals as quickly as possible," but says that did not amount to a threat. Strickland says the state did delay the execution until it received word that the U.S. Supreme Court was not stepping in.

That concession did little to appease critics. For the first time in its 49-year history, the National Association of Criminal Defense Lawyers has filed a complaint against a sitting judge, calling the execution-night closure of the Texas Court of Criminal Appeals a "shocking breakdown" of the justice system.

Carmen Hernandez, president of the National Association of Criminal Defense Lawyers, says the group has asked Texas' State Commission on Judicial Conduct to review the actions of Judge Sharon Keller, the court's chief judge who authorized the closure. Keller declined to comment.

Last month, in an apparent concession to the criticism, the Court of Criminal Appeals said it would begin accepting electronic filings in death penalty cases and other emergency appeals.

Lee Coffee, who first prosecuted Richard more than two decades ago in Houston for the slaying of nurse Marguerite Dixon, concedes the legal process could have worked better at the end. However, Coffee says, any discomfort Richard might have felt before or during the execution is small compared with that suffered by Dixon's family.

"It's only a shame that the family of the victim has been tortured for more than 20 years," says Coffee, referring to Richard's lengthy stay on death row. "This case should have reached a conclusion some time ago."

The retardation argument

Even in death, Michael Richard will never be a particularly sympathetic figure.

Two months after his parole for convictions on auto theft and forgery charges, Richard attacked Dixon inside her home in a Houston suburb, sexually assaulted her, shot her in the head, took two TVs and fled in the Dixon family's van, according to Texas prison records.

Whether Richard deserved to die for the 1986 attack wasn't part of the argument his attorneys made in their last request to the Supreme Court to delay the execution. Instead, the attorneys argued that because the Supreme Court had announced that day that it would review the entire lethal-injection process, it simply was not Richard's time to die.

For two months before the execution, Wiercioch, David Dow and other death penalty lawyers with the Texas Defender Service in Houston pursued appeals based on claims that Richard, a former mechanic, was mentally retarded.

His IQ once was measured at 64; a score of 70 or below generally indicates retardation, Wiercioch says. (In 2002, the Supreme Court ruled that executing mentally retarded offenders violated the Eighth Amendment's ban on cruel and unusual punishment.)

On the morning of Sept. 25, Richard's attorneys had filed what they thought would be their final appeal to the Supreme Court on the retardation issue. At 9 a.m. Texas time, the Supreme Court announced it had accepted the Kentucky case, which tests the standard for deciding whether the mix of three drugs used in lethal injections carries a risk of suffering. Most states, including Texas, have adopted the same mix of drugs: sodium thiopental, an anesthetic; pancuronium bromide, a muscle relaxant given in high dosage to cause paralysis; and potassium chloride, which stops the heart.

Dow learned of the Supreme Court's decision to review lethal injection at 10:15 a.m., after teaching a law class at the University of Houston.

By 11:40 a.m., he was on a conference call with six Texas Defender Service lawyers in Houston and Austin to devise a new appeal to the Texas Court of Criminal Appeals. If rejected, they would ask the U.S. Supreme Court to halt the execution until the justices ruled on the lethal-injection issue.

Word of the Supreme Court's action in the Kentucky case spread quickly to Texas' death row in Livingston. Near dawn that morning, Richard had packed all of his belongings — 24 packages of instant soup mixes, beef jerky, crackers, a soap dish, radio and a collection of correspondence — into five onion sacks. The bags were tagged for delivery to his family after death.

The new path for appeal offered fresh hope for Richard and his family. "He thought he was gonna get a stay," says Patricia Miller, Richard's sister. "That's all people were talking about."

Wiercioch says the defense team had not pursued an earlier challenge to lethal injection for two reasons: Attorneys believed the arguments for mental retardation were stronger, and past challenges to the execution procedure had failed.

"In Texas, (challenging lethal injection) was a dead dog," Wiercioch says.

The defense team's plans began to unravel about 3:15 p.m., when its computer system crashed at the Houston office of the Texas Defender Service, a privately funded group that specializes in death cases. The system crashed as attorneys were drafting the appeals.

The crash cut off electronic contact between Houston and the Texas Defender Service's office in Austin, where paralegals and attorneys were standing by to print the required 10 copies of the documents for delivery to the Texas appeals court before its 5 p.m. closing.

Efforts to repair the computer system failed. By 4:30 p.m., Dow says, the defense team in Austin began alerting the clerk at the state Court of Criminal Appeals about the problem, and the likelihood that Richard's appeal would be late.

Louise Pearson, the court clerk, did not respond to USA TODAY's request for comment.

Defense attorneys say at least four pleas for more time to file Richard's appeal were denied — the last at about 4:48 p.m., after attorneys had regained some computer functions. Dow says his team asked the court about filing the appeal electronically. The request was rejected, he says.

"Everybody in the office was outraged," Dow says.

Less than a half-hour before the scheduled 6 p.m. execution — as the defense team turned to its last option, the Supreme Court — the computer problems flared again.

The lethal-injection appeal took on added importance about 5:30 p.m., when the high court rejected the defense's mental retardation appeal. Dow says the last-ditch lethal injection appeal to the Supreme Court may have been undermined because the Texas court had never ruled on the issue, leaving no record for the Supreme Court to consider.

As defense attorneys raced to overcome technical problems, Wiercioch says he received an unusual telephone call from Texas Assistant Attorney General Baxter Morgan minutes before the 6 p.m. deadline.

Wiercioch says the attorney general's office was aware of the problems plaguing the defense team. He says Morgan called to say that the state still planned to proceed with the execution.

"I said, 'Whoa! Whoa!,' " Wiercioch recalls, adding that he pleaded for more time.

Morgan's response, says Wiercioch: "You've got six minutes."

"It was a stunning conversation," the defense lawyer says. "It was like I was talking to a robot."

Strickland, the spokesman for the attorney general's office, says that "the Texas Defender Service and Greg Wiercioch's recollection and characterization of the conversation are not accurate."

Strickland does not specifically dispute that Morgan referred to a six-minute deadline. He says Morgan's words were mischaracterized as an ultimatum.

"Richard's counsel knew full well that the execution warrant … would be effective as of 6 p.m.," Strickland says.

Even so, Strickland says that immediately after the conversation, the attorney general's office directed prison authorities to suspend the execution until the U.S. Supreme Court weighed in.

'The integrity of the process'

The 29 witnesses for the execution were gathered in holding rooms near the death chamber when the Supreme Court received Richard's new appeal.

As 6 p.m. passed and the delay lengthened, Miller — one of three Richard supporters designated to view the execution — says a prison worker suggested that the passing time might be "a good sign."

But about 8:10 p.m. — 40 minutes after the Supreme Court declined to intervene — the witnesses were ushered into the viewing rooms. Miller says she saw her brother strapped to the gurney.

"We could hear him," Miller says, referring to Richard's brief final statement. "He closed his eyes. We heard him take his final breath."

Nothing in Miller's description indicates Richard showed any signs of pain, a key issue before the Supreme Court in the Kentucky case. Richard's execution, if indeed painless, was eerily similar to how Richard predicted it might go more than two decades ago in a conversation with Coffee, now a judge in Tennessee.

Coffee says the conversation began when the former prosecutor offered Richard a life sentence in exchange for a guilty plea. Coffee says the Dixon family signed off on the offer to avoid the stress of a public trial. Coffee says Richard "coldly" rejected the deal.

"He told me the death penalty would be the last ultimate high," Coffee says. "He said the state of Texas would give him a bunch of drugs, and he would go to sleep."

Twenty years later, Coffee rejects the notion that Richard's words amounted to an empty boast or were clouded by mental deficiency. "You don't see many people that cold, that callous. He had no fear."

Hernandez, president of the national defense lawyers group, says the gruesome facts of the case and Richard's offensive conduct shouldn't be the issue.

"It's about the integrity of the process," Hernandez says. "The test of whether the system is fair is how it runs in a difficult case, when there are no mitigating factors and the defendant is not particularly sympathetic.

"In a death penalty case, there is irretrievable finality. You ought not to close the courtroom doors, especially on a day of an execution."

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