Of Life and Death

While Erica Sheppard sits on death row, penniless and convicted of a gruesome Houston murder, her cadre of elite Dallas lawyers is trying to prove that the justice system has gone fatally awry

Under Texas law, for a person to be sentenced to death, the jury, in the punishment phase of the trial, must answer "yes" to two questions: Was there a probability that the defendant would commit future acts of violence that would pose a continuing threat to society? Did the defendant actually cause the death of the deceased or, did not actually cause the death of the deceased, but intended to kill the deceased or another, or anticipated that a human life would be taken? If the jury answers "no" to either of these questions, the defendant will be sentenced to life in prison. Any factor that might mitigate the punishment from death to life is admissible at this point in the trial.

In Sheppard's punishment phase, the prosecution called 11 witnesses, the first being Korey Jordan, who testified that on the evening before the murder, he saw Sheppard and Dickerson try to rob another woman in the complex. But they aborted their attempt when the woman ran into her apartment. Paula Allen then took the stand and said that she was the ex-wife of Sheppard's current husband, Jerry Bryant Jr., who had committed a drive-by shooting on Allen's friend Wayland Ray Griggs. Sheppard, she claimed, was an accomplice to this shooting as well. Griggs also testified that it was Sheppard who lured him onto the street, setting him up so Bryant could finish the job. Two of Sheppard's jailmates then told the jury that Sheppard bragged about the murder of Marilyn Meagher, after news accounts of the crime aired on television at the Harris County jail.

Sheppard's attorney did not call her to the witness stand in either the guilt/innocence or the punishment phase, and he offered little evidence that tended to mitigate or explain the heinous crime of which the jury had found her guilty. Sheppard's grandmother was called by defense counsel, but she was asked almost no questions about Sheppard's background or character. No one else was called in an attempt to put a human face on the person the prosecution characterized as being a "jackal" and a "predator."

The result seemed almost summary and not surprising: death by lethal injection.

There would be an appeal, of course, to the Texas Court of Criminal Appeals in Austin. But on June 18, 1997, in an unpublished opinion, the court handed down its ruling. There was no reversible error: The judgment of the lower court was affirmed. Sheppard's only hope to avoid execution was by post-conviction relief, a remedy out of antiquity originally created to release English prisoners who had been unlawfully deprived of their liberty. It was called the great writ of habeas corpus, which, translated loosely from the Latin, was a court order instructing prison authorities: Bring me the body.

By the early 1990s, both sides of the death-penalty debate could agree on one thing: The appellate system for handling writs of habeas corpus was broken. Pro-death-penalty advocates, seizing on the sentiment of a tough-on-crime populace, took issue with a system that allowed inmates to languish on death row for interminable amounts of time. In Texas, the average period between sentence and execution was eight years. Even today, convicted murderer Excell White has been on death row for 24 years, Ronald Bell for 23 years, Ronald "Buffalo" Chambers for 22 years.

The procedure in Texas requires that before a defendant can file a habeas appeal, he must have first exhausted his direct appeal route -- from the trial court to the Texas Court of Criminal Appeals to the U. S. Supreme Court itself. In a direct appeal, a defendant is limited to raising legal issues that were originally presented to the trial judge and overruled. If a defendant loses this appeal, he can then file a habeas writ, which gives him a much broader scope, allowing him to raise issues outside the court record that have never before been considered by the trial judge. But under the old habeas law in Texas, the number of petitions as well as issues were limited only by the creativity of the defendant or his attorney, if he was lucky enough to have one.

If a defendant is unsuccessful with his state writ, he can then file a habeas petition in federal court. But under the old law, there was no limit to the number of times each jurisdiction could be petitioned, as long as new issues or new pieces of evidence were raised. And jailhouse lawyers were notorious for tying up the courts with frivolous petitions that cluttered dockets for years.

Anti-death-penalty forces were outraged that, despite the complicated nature of habeas cases, despite the finality of their judgment, indigent inmates were often not provided attorneys and were denied due process. High-profile cases such as those of Randall Dale Adams and Clarence Brandley also brought attention to the manner in which Texas imposed its death penalty. Brandley, a black man, had been on death row for ten years, convicted of murdering a white high school girl. In 1990, after an arduous habeas process and much publicity, the racist motives of the police officers who had arrested Brandley were revealed and his sentence overturned.

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