Texas Cop Killer May Dodge Death Penalty

     HOUSTON (CN) – A man on death row for killing a vice officer during the attempted robbery of an adult bookstore should be resentenced, a federal judge ruled.



     Robert Mitchell Jennings killed Officer Elston Howard during a robbery at Empire Bookstore in July 1988. The Houston vice officer was in the process of arresting an Empire clerk for showing a sexually explicit movie without a permit when Jennings entered the store and pulled a gun.
     The robber shot Howard twice in the neck, and then twice more as the officer lay facedown on the floor.
     When Jennings told the driver of the getaway car, David Harvell, about shooting the officer, Harvell fired his own gun at Jennings, and Jennings escaped through the passenger window.
     Jennings pleaded not guilty to the charge of capital murder, but a jury convicted, and the trial court sentenced him to death.
     After Jennings exhausted his state appeals options, he filed a petition for a writ of habeas corpus with the Southern District of Texas.
     The January 2009 petition argues that Jennings suffered from an ineffective attorney who ignored evidence of his client’s mental impairment and disadvantaged background.
     Defense attorney Connie Williams opted not to have Jennings’ mother Flora or his sister Carla testify at sentencing.
     “The state obtained an affidavit from Williams in 2003 that he did not call Mrs. Jennings or Carla because he did not think that their testimony would be beneficial, as Mrs. Jennings was not sympathetic to petitioner and Carla was relatively young when petitioner left home,” according to the petition.
     Though U.S. District Judge Lynn Hughes said Jennings’ attorneys may have had a legitimate basis to not call the mother, the sister’s testimony could have helped.
     “Counsel’s explanation for not calling Jennings’s sister makes no sense,” Hughes wrote Monday. “Counsel stated that Jennings’s sister was too young to remember pertinent events. The record shows that she was about 10 years old when Jennings first entered the juvenile justice system. That is certainly old enough to remember conditions at home at the time.”
     “Moreover, while counsel’s explanations for not calling Jennings or his mother might make sense in isolation, the decision to call none of these three potential witnesses, and therefore present no evidence of the emotional and economic deprivations of Jennings’s background, was not sound trial strategy,” Hughes added (emphasis in original).
     Jennings also claimed that the court should have heard about his mental condition, as evidenced by a 1978 court-ordered psychological evaluation. When Jennings was charged with two aggravated robberies and the burglary of a habitation, Dr. J. M. Bloom examined whether the suspect was competent to stand trial.
     “Based on the evidence available to counsel at the time of trial, reasonable investigation, i.e., reading the clerk’s files from Jennings’s prior convictions, would have revealed that Jennings was diagnosed with a low IQ and organic brain damage, and would have led to further investigation and a request for expert assistance,” Hughes noted.
     But the judge supported the closing arguments made by Jennings’ counsel. “In his closing argument at the penalty phase, counsel stated that ‘I can’t quarrel with’ a decision to sentence Jennings to death because counsel, like the jurors, lived and worked in Harris County and cared about having a safe community,” Hughes wrote. “He nonetheless asked the jurors to give sufficient weight to the mitigating evidence to return a life sentence.”
     “It is clear from the record that counsel was trying to identify with the jurors, and to convince them that he was a reasonable man who shared their interest in a safe community,” Hughes added.
     But the defense may have been able to secure a life sentence by uncovering mitigating evidence about Jennings’ background.
     “Petitioner’s mother conceived him as the result of a rape at age 16,” the decision states. “She frequently told him that she could not complete her education because of him and did not want him. He lived sporadically with various relatives during childhood and had no positive, lasting male influence. He and Carla lived in an apartment, supervised by an older cousin, during the week; their mother used drugs when she came home on the weekends. He lived in poverty and had only the bare essentials. He received little adult supervision or love. He did poorly in special education classes, dropped out of school in the ninth grade, and began to use drugs, which led to his criminal conduct. Although his disadvantaged background does not excuse his conduct, it diminishes his moral culpability and arguably justifies a life sentence.
     “Had counsel investigated petitioner’s mental condition, they would have discovered Dr. Bloom’s report that petitioner demonstrated mild mental retardation and organic brain dysfunction in 1978. They would have requested a psychological evaluation, which inevitably would have led to a QEEG and SPECT-Scan that would have disclosed that he sustained an injury that resulted in organic brain dysfunction. They would have learned that he twice received head injuries that required treatment at a hospital. A psychologist would have testified that he suffers from periods in which impulsive action overcomes his capacity for reason and foresightful action; his capacity for emotional control and self-inhibition is less than that of an unimpaired person; and his condition has a demonstrable physical basis. Counsel could have argued that his mental impairment and disadvantaged background made him less morally culpable for his conduct and constituted reasons to spare his life. Had one juror agreed and persisted in a negative answer to a special issue, petitioner would have received a life sentence.”
     The 14-page order concludes that Jennings’ did establish prejudice.
     Hughes ordered that Jennings be released from custody if Texas does not provide a new sentence or sentencing hearing within 120 days. The judge stayed the order until the completion or expiration of all postjudgment motions and appeals.

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