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Rough Justice

Through his wire-rimmed glasses, attorney Barry Abrams stared numbly at the Plexiglas window. On the other side, he could see his client, 36-year-old Anthony Ray Westley, strapped to a hospital gurney. Connected to each of the large black man's arms was an IV line dripping neutral saline solution. Abrams dreaded the moment when a lethal combination of drugs would be added to the saline.

Eight years before, when Abrams accepted Westley's case, he knew the odds were against his client. As the lawyer worked on the appeal, those odds grew steadily worse. Since 1982, when Texas revived capital punishment, 116 prisoners had been put to death at the Texas Department of Criminal Justice's Walls Unit in Huntsville. And on this day -- Tuesday, May 13 -- Westley would make 117, the tenth execution of 1997, which promises to be a record-setting year on the state's death row. Westley's death would just be one more in a long chain little noted in the outside world; four more Texas inmates were scheduled to die this week.

To Abrams, though, the execution about to take place represented a huge miscarriage of justice. A short man with dark hair, the 44-year-old fought to maintain his usual tightlipped composure. Westley was going to die, Abrams thought, for a murder he didn't commit.

Abrams and Westley's family watched from one of the two rooms with a window onto the death chamber. In the other room was gathered the family of Chester Frank Hall, the man Westley was convicted of killing 13 years before.

On the gurney, Westley turned to face the one-way mirror on his left, the window behind which Hall's family had gathered. He directed his last words to Hall's widow.

"I didn't shoot your husband," Westley said. "I really didn't. I want you to believe I didn't kill him."

Hall's wife would say later that Westley's last words angered her, and that she felt justice had been served.

But Abrams believed him. Since beginning work on this case, the lawyer had grown convinced that another man shot Hall. And in the previous 16 hours, he believed he had found new evidence to support that theory. Since early morning, the lawyer and his staff had worked feverishly to win Westley a last-minute stay of execution. But only hours before, his request had been turned down by the Texas Court of Criminal Appeals, the federal Fifth Circuit Court of Appeals and the U.S. Supreme Court -- and last by Governor George Bush, who said he denied the stay of execution "reluctantly."

The drugs began flowing through Westley's IV line. The prisoner made one last gasp for air.

Abrams had never felt so powerless.

In retrospect, Anthony Ray Westley seemed destined for a life of crime. Raised by his grandmother, he had an IQ of around 70. In his early twenties, he took up with a couple of other men from the Fifth Ward: John Dale Henry, described by friends as "street-smart," and Tyrone Dunbar, who'd served a stint in state prison. Along with Dunbar's wife and children, the three men shared a house in northeast Houston.

On April 13, 1984, Westley and his two friends spent the morning drinking and drugging. They then drove to Eileen's Bait and Tackle, a little shop near the entrance to Lake Houston. Once inside, the three men told the clerk that they were going fishing and wanted night crawlers for bait.

The woman later testified that Westley put a gun to her head and told her that this was a robbery. After he knocked her to the floor behind the counter, she thought she was about to die. But instead of the expected gunshot, she heard the jingling cowbells signaling that someone had walked through the bait shop door.

Chester Frank Hall, the shop's owner, had apparently sensed that something was wrong. He entered with his .22-caliber revolver already drawn. Gunfire erupted.

When it stopped, the clerk looked up from behind the counter and saw Westley and Henry run out the front door, leaving Dunbar lying in a pool of blood. Then the clerk saw Hall. Bleeding from the mouth, he slowly walked toward her, then fell to the floor.

Both Hall and Dunbar died at the scene. Henry had also been shot during the robbery; Westley dropped him off at a hospital, where he was arrested.

The next day, Westley surrendered to detectives from the Harris County Sheriff's Department. He signed a confession saying that he'd participated in the robbery and that he'd carried a .22 during the hold-up.

Later, ballistics experts found that Hall had been killed by a bullet of that caliber. Westley maintained that he'd signed the confession because detectives had told him a bullet from a .38 had killed Hall. The detectives denied that they'd said so.

 

But other evidence indicated that Westley was telling the truth. Though the bait shop clerk had not been able to see which of the robbers fired the shot that killed Hall, she said in her original statement to the police that Westley had been armed with a large-caliber handgun, something more akin to a .357 or a .38 than a .22. The clerk later repeated that assertion at Henry's trial.

None of that information was known by Ron Mock, the court-appointed lawyer who represented Westley at his murder trial. Though the attorney had requested all exculpatory evidence, the prosecutors did not inform Westley's defense team of the woman's original statement or of her testimony at Henry's trial. Nor had Mock dispatched an observer to sit in on the trial.

Henry was convicted of aggravated robbery and sentenced to 35 years in prison. Westley was convicted of capital murder and sentenced to die. Four years later, in 1989, he was assigned an execution date.

That same year, the president of the State Bar of Texas appealed to lawyers to provide more volunteer services to indigent inmates -- especially in capital punishment cases. At the time, Barry Abrams, a UT law school grad who usually handled civil matters such as discrimination cases, was working for the Houston firm of Sewell & Riggs. On Abrams's recommendation, the firm's partners agreed to take up Westley's appeal pro bono.

Although several of the firm's other attorneys were initially involved, when Abrams and one of his current partners, Bob Scott, left the firm to start their own practice, they took the Westley case with them. "There was no great effort to stop us," Abrams said wryly. Death penalty cases are expensive and time-consuming, and the rewards are few.

In reviewing the case file, Abrams discovered that though a date had been set for Westley's execution, his appeals had not been exhausted. Like all capital murder convictions in Texas, Westley's had received the perfunctory review of the Texas Court of Criminal Appeals. But the lawyer found there had been no appeal to the U.S. Supreme Court, nor a request for new trial at the state level. He began working both fronts.

In March, a month before Westley was scheduled to die, Abrams persuaded the Court of Criminal Appeals to stay the execution so that a trial judge could review the claim that Westley had not received a fair hearing. Abrams offered two reasons: First, he argued, prosecutors should have informed the defense of the bait shop clerk's testimony; second, Westley's defense lawyer had proven himself incompetent by not monitoring Henry's trial.

State District Judge Norman Lanford, who had presided over the murder trial, assigned a special master, attorney Brian Wice, to review the request for a new murder trial. In November 1990, after eight days of testimony, Wice concurred with both of Abrams's arguments and issued a lengthy report.

"This case represents, in compelling terms, a breakdown in the adversarial system of justice," wrote Wice. After reviewing the report, Lanford forwarded it to the Court of Criminal Appeals, along with his own recommendation that Westley be granted a new trial.

The Court of Criminal Appeals did not agree -- and it would not be alone. As the case wound its way through the state and federal appellate process, a total of 16 judges, including Lanford and Wice, had an opportunity to pass judgment on Westley's request for a rehearing. Of those 16, eight voted that Westley should receive a new trial; eight voted that he should not.

Unfortunately for Westley and Abrams, in the appeals process, you don't get credit for a cumulative score. In March, the U.S. Supreme Court denied Westley a new hearing. When the execution was set for May 13, Abrams assumed he'd done all he could for his client.

In late April, Abrams received an astounding phone call. Martha Dunbar, 48, told him that she'd been intimately connected to the robbers. At the time of the bait shop holdup, she was married to Tyrone Dunbar -- and was also seven months pregnant with John Dale Henry's baby.

Henry, serving a 35-year sentence for his part in the crime, had never seen his child by Martha. But now, having been paroled after 13 years, he'd called Dunbar and told her he wanted to meet his daughter. Dunbar said that she then confronted Henry with her long-standing suspicion: that he'd planned the robbery as a way to get her husband out of the picture, and that Henry himself had shot Tyrone during the holdup.

Henry denied it. And in fact, Martha said, he positioned himself as her husband's avenger. He told her that Hall, the bait shop owner, had killed Tyrone, and that he, Henry, had then shot Hall.

 

For the past eight years, Abrams had suspected that Henry, not Westley, had shot the bait shop owner. But he also knew that Dunbar's testimony alone was probably too little, too late. Even if Abrams could convince a court to hear it, he'd most likely end up pitting Dunbar's word against Henry's.

Abrams immediately contacted private investigator Clyde Wilson, who arranged to have an audio recorder connected to Dunbar's telephone in hopes that Henry would call her again.

Henry apparently sensed that something wasn't right. Dunbar had trouble reaching him, and when she did, he was less than forthcoming about the fatal afternoon.

After more than a week of trying to capture Henry's confession on tape, Abrams decided to go with what he had: Martha Dunbar's testimony. He and Westley were both running out of time.

At 8:15 a.m. on Friday, May 9 -- three days before Westley's execution date -- Abrams walked purposefully from his office to the Harris County District Clerk's office. There he filed the paperwork requesting a new trial on the basis of freshly discovered evidence.

Before heading back to his office, Abrams paid a courtesy call on Roe Wilson, chief of the District Attorney's capital murder appellate section. As Abrams brought her up to speed on the new evidence, Wilson was friendly, even offering advice. Abrams asked whether the D.A.'s office would like to join him in requesting a stay of Westley's execution. He got the answer he expected: Wilson, apparently surprised and amused by the request, respectfully declined. As he left, he thanked her for her help.

"It's chilling how civilized the process of executing someone has become," he observed while waiting for the elevator. "It doesn't make me very proud to be in the legal system."

He returned to his office to check on the appeal. After a district judge signed the paperwork, it would be sent to the Court of Criminal Appeals in Austin. To expedite the process, Abrams had dispatched a member of his staff to Austin to hand-deliver copies of the appeal to a clerk who'd promised to make sure the justices reviewed the motion over the weekend so they could rule on Monday.

Around 10 a.m., reassured that the Austin paperwork would reach the right hands, Abrams left his office to visit Westley, accompanied by Ramon Viado, a young lawyer who works for Abrams's firm. Abrams drove his red Volvo 940 Turbo north toward Huntsville. To get to the Ellis I Unit, which houses the approximately 450 TDJC inmates on death row, he turned east off of the interstate, then north on a small farm-to-market road, heading a few miles northeast of Huntsville. The area always reminded him of the prison movie Cool Hand Luke.

It had been more than a year since Abrams had visited Westley. They'd stayed in touch by phone, and they'd corresponded regularly. Over the last few years, Westley had sent Abrams's family small gifts -- jewelry boxes and picture frames that Westley had made.

Abrams told his client the painful truth: Even with Dunbar's sworn statement about Henry's alleged confession, Westley was unlikely to be granted a stay. Abrams spent the rest of his 90-minute visit finding out how Westley was doing and checking to see whether anything could be done to make him more comfortable during what would likely be his final days.

On the drive back to Houston, Abrams was even more pointed. "He probably has a better chance of escaping than having his execution delayed," he told Viado.

Back in his office, Abrams decided that it couldn't hurt to shoot off an appeal to the U.S. Supreme Court. As with the Court of Criminal Appeals, he couldn't expect a response until Monday.

Over the weekend, Abrams coached softball and spent Mother's Day with his wife, children and mother-in-law. He tried hard not to think about the case.

Monday played out as Abrams had feared. In mid-afternoon, he heard that the Court of Criminal Appeals had rejected the new evidence. A few minutes later, he learned that the Supreme Court had ruled the same way. That bad news was followed by even more: Governor Bush also declined to grant a 30-day stay. Neither the governor nor the judges offered any explanation of their decisions.

For once, mild-mannered Abrams was angry. For the rest of the afternoon, he tried to focus on the logistics of the coming day -- on the last attempt to capture Henry's confession on tape, on the transportation that Westley's family would need to Huntsville.

He went home and waited for the call he didn't expect to come. When, by midnight, it hadn't, he went to bed. But around 2 a.m., he was awakened by the telephone: One of Clyde Wilson's investigators told him that Martha Dunbar had tried a new tactic in her campaign to tape Henry's confession. One after the other, she'd put three of her daughters on the phone with Henry. One of them had somehow coaxed Henry to confess.

 

Abrams immediately drove to his office. There he met the investigator, Martha Dunbar and Dunbar's daughter, Marie Walker, who's now 26 and had known all three of the men who committed the bait shop robbery. Tyrone Dunbar had been her stepfather, and she considered Westley an adopted brother. She called him by his nickname, "Black."

Abrams eagerly listened to the taped conversation, which began with Marie telling Henry that it was important for her to know the truth about the robbery.

"Okay," Henry replied, "let me tell you what happened in that place."
"Okay," said Marie.
"When we went in there, Tyrone and Black was up front. I was in the back by myself when the shooting started. I didn't even know the man who owned the place that got killed had even come in there. Okay? After the shooting stopped for a minute, I came up to the door and was going to try and sneak out."

"Uh-hum."
"The man had his back to me."
"Who's that? That Chester Hall man they talking about?"

"Yeah, Chester Hall. He didn't even know I was behind him. Okay? About that time .... By the time I walked up to the door, he started shooting back at Black and Tyrone. Okay? I pushed him in the back. I didn't shoot him then. I pushed him in the back. And, uh, but he was a fat man, and he just took a step up when I didn't push him enough. And he just took a step up and stuck a gun in my gut and shot me and turned back around, started shooting at them. Okay. After he shot me, I shot him."

(The Press was unable to locate Henry following Westley's execution; a tape recording and written transcript of the call were provided to the Press by Abrams.)

Abrams tried to control his excitement, tried not to be overly optimistic about the difference the tape could make in Westley's appeal. But immediately, in the wee hours of the morning, he and his staff began updating the appeals that had been rejected the afternoon before.

He considered calling a press conference. During the eight years Abrams had worked on the appeal, he'd chosen not to court the media. Though he knew that media attention had bolstered the appeals of death row inmates Ricardo Aldape Guerra, Clarence Brandley and Gary Graham, Abrams feared a backlash from the courts.

But this morning -- on the day Westley was scheduled to be executed -- Abrams had nothing to lose. Laws on Texas's books still allow for "rough justice," in which a person can be executed for being part of a crime in which someone was killed. But Abrams believed that if Westley could prove he hadn't fired the shot that killed Hall, not even Texans would put him to death. At 8 a.m., the lawyer whipped together a press release and faxed it to news organizations across the state, along with copies of the new appeal.

Two hours later, Abrams and partner Bob Scott were on the road to Huntsville. Inside Scott's black BMW, the two lawyers were mostly silent. Abrams ventured that, given the new evidence, there was a slim chance that Bush might grant Westley a 30-day stay. The governor, an advocate of capital punishment, had never before granted such a stay, but doing so, said Abrams, "would certainly vault him into the pantheon of people with gonads."

The lawyers, both Democrats, agreed to call friends in the GOP, people who might hold some sway over Bush. "We do have some Republican friends," quipped Scott. "We even socialize with them."

Shortly before noon, Abrams and Scott pulled into the Ellis I Unit's parking lot. As they got out of the car, they met some of the 17 members of Westley's extended family who'd come to the prison in a van hired by Abrams's firm. Walking to the guard tower, the attorneys made sure that the visitors had been allowed to say their good-byes to Westley.

Also on hand to say good-bye was a large white woman in a raspberry-colored pant suit. Ten years before, 53-year-old Judy Embry began corresponding with Westley through a Christian support group for inmates. She said proudly that during that time, Westley went from being a repeat troublemaker to a model prisoner well-liked by guards and the warden. Westley designated Embry as his next of kin and gave her the few possessions he was allowed to keep in prison.

 

Embry noted that another of her pen pals had been executed four years before, and that she wasn't ready to repeat the experience. "A lot of people accuse me and my family of not living in reality because we don't watch trash movies and trash television," she said. "But this is reality."

Abrams and Scott didn't have much time to socialize: In only a short time, Westley would be transferred to the Walls Unit, where the execution was scheduled to take place. The attorneys disappeared into the prison to brief Westley on the events of the morning.

The lawyers left their client only a few minutes before he was transferred. As Scott drove to Huntsville, Abrams tried to prepare himself: In a little over four hours, his client was scheduled to die. He bitterly wondered aloud what the attorney who had represented Westley at his trial was doing at that very moment. When Westley had gone on trial, attorneys who were appointed to represent capital murder defendants in Harris County required no certification; the rules have since changed. Abrams took some small comfort in knowing that Ron Mock, Westley's former attorney, was not among those currently certified to handle capital cases through judicial appointment.

In Huntsville, Abrams arranged to have one more meeting with Westley, this one inside the Walls Unit.

Meanwhile, Westley's family gathered two blocks away at Hospitality House, a one-story brick building set up by church groups as a place where a condemned man's family and friends can console each other before his execution. The prison chaplain dropped by but seemed to offer little comfort. The family's weeping and wailing could be heard outside the building.

Martha Dunbar came out for a smoke. A bony, hard-looking woman, she explained through her tears, and between long drags on her cigarette, that she felt it was her fault Westley was about to be put to death. She knew, she said, that when Henry and Dunbar were leaving that morning 13 years ago, something bad was about to happen. As a favor, she asked Westley to go along and watch her husband's back.

"They are going to kill an innocent man!" she screamed to no one in particular, doubling over with grief. "He'll just be one more dead nigger to them."

At about 6:15 p.m., prison guards and Texas Rangers escorted those who would view the execution into two rooms, one on each side of the death chamber. Frank Hall's wife, daughter and two stepsons took their places in one room. Abrams stood in the other, with Westley's friends and family. Through the room window, he saw Westley strapped to a gurney. Marie Walker -- who had secured the recording she hoped would save Westley's life -- and Westley's brother, Ellis Williams, pressed their bodies against the Plexiglas, as close as they could get to the condemned man.

Only four news organizations sent reporters to the execution: Associated Press, United Press International, the Houston Press and the Huntsville Item. All had planned to cover the execution before Abrams issued his press release.

The warden asked Westley if he had any last words. Westley turned toward Hall's family and, one final time, claimed that he hadn't shot the man. Then he faced his own friends and family. "I love you all," he said. "God be with you."

Ellis Williams couldn't stand to watch the chemicals do their work. He walked to the back of the witness room and banged on the door, demanding to be let out.

Marie Walker pounded at the Plexiglas window and continued to stare at Westley's half-open eyes. "Wake up!" she cried. "Wake up!"

She collapsed on the floor. Abrams helped her to her feet, and then out the front door of the prison. Down the street, demonstrators were chanting anti-death penalty slogans.

After a few last words with Westley's family, Abrams and Scott got into their car and headed back to Houston. Abrams spent the long ride back second-guessing himself, thinking about things he might have done differently, strategies that might somehow have kept Westley alive. Later, he would say he never wanted to appeal another death penalty case: "My lance isn't long enough for that windmill."

Back at the law office, Abrams read the opinions that had arrived while he was in Huntsville, and then drove home. He was silent as he walked inside his house. Just as silently, his wife and two daughters put their arms around him.


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