Judge Gives Hope to|Man on Death Row

     HOUSTON (CN) — A Texas death row inmate won his decades-long fight for habeas relief this week when a federal judge found a state appeals court should have considered mitigating evidence: How remorseful he was for killing a policeman.
     Arthur Williams, a 56-year-old black man, is on death row for shooting to death Daryl Shirley, a white Houston police detective who was in street clothes when he tried to serve Williams with a warrant outside Williams’ Houston apartment on April 28, 1982.
     A Harris County jury sentenced Williams to death for the murder in 1983, unmoved by his argument that because he had been robbed a few months before the shooting by someone masquerading as a police officer, if Shirley had identified himself as a policeman, he didn’t believe him.
     Texas law at the time did not allow the jury to consider mitigating evidence.
     It required the jury to decide his sentence based on three questions: Did he act deliberately? Would he be a future threat to society? Did he act unreasonably in response to provocation?
     “The jury answered Texas’ special issue questions in a manner requiring imposition of a death sentence,” U.S. District Judge Nancy Atlas wrote in her June 28 order.
     Atlas found the Supreme Court’s 1989 ruling in Penry v. Lynaugh warrants relief for Williams.
     In Penry the court found that Texas law did not let the jury give enough consideration to Johnny Paul Penry’s mental disability as a mitigating factor, and remanded the case.
     The Penry ruling laid the groundwork for Williams’ habeas victory 27 years later.
     The Penry ruling led the Texas Legislature in 1991 to amend the state’s capital murder sentencing statute to include a fourth jury question: “Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.”
     The defense called witnesses during the guilt-innocence phase, who testified that Williams, then 23, was crying as he left the scene of the shooting and was crying hours later, and that he repeatedly apologized for the murder.
     The trial court also heard testimony that Williams had obtained his G.E.D. before he killed Shirley.
     Williams’ state habeas case worked its way up to the Texas Court of Criminal Appeals, which upheld his conviction in June 2012 on the grounds that evidence of his remorse, while relevant as a potential mitigating factor, could be fully considered by a jury under the “future-dangerousness special issue,” as recounted in Atlas’ order.
     Federal law requires prisoners to exhaust their state appeals before they can file a federal habeas case.
     Calling the appellate court’s decision an “unreasonable application of Supreme Court precedent,” Atlas decided that error was sufficient to grant Williams relief.
     “Had the current punishment phase questions been put before the jury, an effectual vehicle would have existed for the consideration of mitigating evidence. Because of the constitutional defect in the jury’s ability to consider and give effect to all Williams’ mitigating evidence, an additional special issue was required. The omission of a mitigating question requires federal habeas corpus relief,” wrote Atlas, a Bill Clinton appointee.
     She granted Williams habeas relief unless Texas grants him a new punishment phase trial or commutes his sentence to life in prison within 180 days.     
     Harris County Assistant District Attorney Roe Wilson said the case will go back to Harris County, Williams will have attorneys appointed and the DA’s office trial bureau will review the case and go from there. She said it’s up to Harris County DA Devon Anderson whether to pursue the death penalty.
     “It was reversed just on punishment, not on guilt. He’s still guilty and he’s still in prison. We’ve had several cases in the last few years that have been reversed just on punishment based on Penry,” Wilson said.
     Williams’ attorney Stanley Schneider sounded satisfied with the ruling on Wednesday, but said it could have been better.
     “I’m a little bit disappointed that we didn’t get relief on the guilt issues,” Schneider said in an interview.
     Williams vigorously but unsuccessfully argued that Harris County prosecutors illegally used their preemptory strikes to remove six black people from the jury pool, and that the district attorney’s office had shown a pattern of nixing potential black jurors from capital murder trials.
     “A prosecutor’s personal and his office’s general prior history of discrimination, while relevant, does not of itself entitle an inmate to habeas relief,” Atlas wrote, citing the Supreme Court’s 2005 ruling in Miller-El v. Dretke.
     Schneider tried his first death penalty case in 1978.
     “In my first death penalty case I asked for a mitigation jury charge. And it was a decade later that the Supreme Court started talking about mitigation. So it’s been a long battle to get to situations like this,” the attorney said.

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