States of execution

Texas, California contrast reality of capital punishment

Nov 16, 1997 - By Dan Malone and Howard Swindle / The Dallas Morning News
Copyright 1997, The Dallas Morning News

In a just world, Aaron Lee Fuller and John Lee Holt would share the same fate.

Both men were 23 years old in 1990, when they were sentenced to die for robbing, raping and killing women old enough to be their grandmothers. Both had troubled childhoods. Both had problems with marijuana. And both had been behind bars before.

But Mr. Holt, who killed in California, is years away from execution. And Mr. Fuller, who killed in Texas, was executed 10 days ago.

In a final interview before his execution, Mr. Fuller readily admitted his guilt. The 30-year-old former diesel mechanic, one of about 440 Texas death row inmates, predicted that the final appeal of his 7-year-old death sentence would fail.

"What I did was inexcusable. It was wrong," said Mr. Fuller, the 141st man executed from the nation's deadliest death row. "I've been through the whole process - all the way to the Supreme Court. I always knew it would come to this."

Mr. Holt, one of 488 condemned men on the nation's largest - and least lethal - death row, lingers in the early stages of his appeals. Since 1976, California has executed four men. Mr. Holt is in no immediate danger of joining the list. About 250 prisoners have been there longer than Mr. Holt, his attorney said.

Twenty-five years ago, when Mr. Fuller and Mr. Holt were just starting school, the U.S. Supreme Court, in a landmark decision called Furman vs. Georgia, declared the death penalty unconstitutional because of its arbitrary use against minorities and the poor.

Four years later, the court approved new standards for the death penalty and put the nation's executioners back in business.

Much about capital punishment has changed since the Furman decision, but actual executions, at least in their geography, remain as inconsistent as many of the arbitrary practices the Supreme Court sought to end.

To explain the disparity between the two states, The Dallas Morning News analyzed hundreds of appeals filed by the 1,162 people condemned to death in Texas and California in the last 20 years.

A computer analysis of those cases, combined with interviews and the results of a death row survey by The News, revealed:

In California, death row inmates often languish at the California State Prison at San Quentin for years before a lawyer is appointed to file their required appeal. In Texas, lawyers are appointed soon after conviction to begin the same process, speeding up the first level of appeal.

To illustrate: The judge who presided over Mr. Fuller's case appointed a lawyer to handle his appeal to the Court of Criminal Appeals on Feb. 12, 1990, the same day that he was sentenced to die. But Mr. Holt waited almost three years after his conviction before the California Supreme Court named an appellate lawyer for him.

While Mr. Holt's case gathered dust for three years, Mr. Fuller's appeal was considered and rejected by the highest Texas court.

Mr. Holt's case is not an aberration. About one-third of California's death row inmates are waiting for a lawyer. Some, like Mr. Holt, have waited for years.

State and federal appellate court judges with California jurisdiction advance cases more slowly than jurists on Texas cases. In the seven years since his death sentence, Mr. Holt's appeal was heard by a single appeals court, and Mr. Fuller's was considered - and repeatedly rejected - by judges on five courts stretching from the Texas Panhandle to Washington, D.C.

If executions in Texas are being carried out at what some consider a gruesome pace, California officials complain that judges sit on death penalty appeals for as long as nine years.

Throughout the appeals process, judges with jurisdiction over Texas death penalty cases have tended to side with the prosecution. Judges of California cases have been more likely to side with the prisoners.

According to the computer review of published cases in the U.S. circuit courts of appeals, the 9th Circuit Court of Appeals has heard far fewer California death penalty cases than its Texas counterpart, but ruled in favor of prisoners in two-thirds of the cases. Some jurists on that court were deemed so philosophically opposed to capital punishment that California resumed executions only after the U.S. Supreme Court temporarily stripped them of their power to halt them.

Writing for The New Yorker earlier this year, 9th Circuit Court Justice Alex Kozinski said the appeals process has turned "judges into advocates."

"There are those of my colleagues who have never voted to uphold a death sentence and doubtless never will," wrote Justice Kozinski, who has voted to uphold California's death penalty.

Meanwhile, the New Orleans-based U.S. 5th Circuit Court of Appeals, with a much more conservative reputation, issued rulings favorable to prisoners in fewer than one-fifth of the Texas cases, according to The News' examination of published cases.

A similar disparity has existed at the state appeals level. During the early 1980s, when the Texas Court of Criminal Appeals was affirming death penalty convictions, it was virtually impossible to obtain approval for a death penalty case from the California Supreme Court.

Of the first 80 or so cases heard after the death penalty was reinstated, only four were approved, according to the California attorney general's office.

Although Texans and Californians disagree on many issues, the death penalty is not one of them. Public opinion surveys show that capital punishment is supported by three quarters of the population in both states.

But the attitudes and expectations of death row prisoners reflect the differences between the two states, according to "America's Condemned," The News' survey of death row prisoners.

In California, about 15 percent say they expect to be executed. In Texas, more than 30 percent say they expect to be put to death.

The threat of execution is so distant in California that four of five inmates in the survey there said they have never been given an execution date. In Texas, more than half said they had received at least one execution date during their years on death row.

And while executions may have become commonplace in Texas, records show that an inmate in California is more likely to die by his own hand than by execution. For every death row inmate who has been executed in recent California history, three have commit ted suicide.

The appeals process

The journey from the courtroom to the death chamber can last a few months - or a few decades.

Gary Gilmore, the first person executed since the death penalty was reinstated, was killed by a Utah firing squad on Jan. 17, 1977, three months after his conviction. A few others, such as Fort Worth courthouse gunman George Lott, are executed within a few years of their convictions.

Perhaps a dozen - such as Montana's Duncan McKenzie Jr., who was executed in 1995 after 20 years on death row - stretched their appeals over two decades. And some - such as Kerry Max Cook of Tyler, who was released on bail last week pending a fourth trial in a 20-year-old murder - are tried, retried and tried again.

However, most death row inmates, such as Mr. Fuller and Mr. Holt, fall somewhere in between. The average stay on death row for the more than 400 people executed nationwide since 1976 is about 8 1/2 years, according to the Death Penalty Information Center in Washington, D.C.

Appealing a death sentence is usually a two-step process involving a hierarchy of judges that stretches from the trial court to the U.S. Supreme Court.

The first step, mandatory in most states, is the direct appeal, which deals with what happened during trial. Did the judge issue proper rulings? Was the evidence used to convict legally admitted? Were the instructions to the jury appropriate?

The direct appeal is heard by the highest criminal court in the state, such as the Texas Court of Criminal Appeals or the California Supreme Court. But sometimes, issues raised at this level of appeal also are taken up by the U.S. Supreme Court.

In the second step of the appeal - optional, but nearly always pursued - a condemned prisoner challenges the death sentence on constitutional grounds with a writ of habeas corpus, a Latin term meaning "you may have the body." Dating to 13th century England and the Magna Carta, this procedure allows a prisoner to raise issues that did not come up during the trial. Were the defense attorneys ineffective? Has new evidence been unc overed? Did prosecutors hide evidence? Is the state's prescribed manner of execution unconstitutional?

This phase of the appeal starts out in state courts and then can proceed through the federal court system - from district judge, to appellate court, to the U.S. Supreme Court.

Appeals can obtain relief that is either temporary - such as a stay of execution or a fact-finding hearing on a key issue - or permanent - such as being sentenced to life or being set free. Until recently, there was no limit on the number of successive habeas corpus appeals that could be filed - or a time limit for filing them.

Of the approximately 6,000 people who have been sentenced to death since 1976, about one-third have attained some relief through appeals, according to the Death Penalty Information Center.

In most cases, only the sentence was overturned or the prisoner was sent back for another trial. Many escaped the death penalty but remained in prison. But in 73 cases, the center says, individuals once sentenced to death walked away free.

The Holt and Fuller cases are not identical. Mr. Holt, for example, is black; Mr. Fuller is white. But their cases - coupled with the history of executions in Texas and California - demonstrate how two similar crimes can produce such dramatically different results.

Early executions in Texas

The earliest executions in Texas were local affairs - a killer tried in a county courthouse was often quickly strung up on a nearby tree. In 1924, the state took over the business of executions and replaced the hangman's noose with the electric chair - a relic known as "Old Sparky" now preserved in a museum in downtown Huntsville. During the next 40 years, 361 people were electrocuted in Texas - an average of just over nine a year, according to state records.

Old Sparky's last victim was Joseph Johnson Jr., a 30-year-old Houston robber who went to death praising Jesus and proclaiming his innocence. Mr. Johnson was convicted of killing Joseph Ying Chiu, 38, during a 1962 robbery. His appeals kept the executioner at bay until July 30, 1964, when the state sent 2,000 volts of electricity through his body.

Mr. Johnson, like most of those who died in the electric chair, was black. Increasingly, in the late 1960s, the death penalty was being attacked as racist - a view adopted by the Supreme Court in the 1972 Furman case, which invalidated about 600 death sentences in 39 states.

Four years later, the Supreme Court approved new guidelines for the death penalty - and state legislatures began to recast their death penalty statutes. Texas resumed executions in 1982, making national news - and starting a national trend - by being the first state to execute by lethal injection.

Eighteen years after the state electrocuted Mr. Johnson, condemned killer Charlie Brooks Jr. was strapped to a hospital gurney in Huntsville and put to death in what some called the first "humane execution."

Mr. Brooks, convicted for the 1976 murder of David Gregory, a 26-year-old mechanic, had been on death row for five years - twice as long as Mr. Johnson. His final statement was a proclamation of love for his girlfriend, who witnessed his death. Like Mr. Johnson, the convicted killer was black.

The life and death of Aaron Lee Fuller

During the last 15 years, 141 men have been executed in Huntsville, the same nine- per-year average as before the Furman decision. But this year alone there have been 34 executions. Aaron Lee Fuller's Nov. 6 execution was only the most recent. Three more are scheduled this week.

In an interview the week before his execution, Mr. Fuller was the picture of health. A muscular man just shy of 6 feet, he had a full head of light brown hair cropped high at the sideburns and combed straight back in a pompadour, hazel eyes, solid white teeth, bushy reddish eyebrows and a strong chin. He smiled a lot.

He said he underwent a spiritual awakening on death row, and he professed disinterest when asked about his impending death. "I have no concern for this," Mr. Fuller said, touching the flesh of his right forearm with his left hand for emphasis.
"This goes back into the ground and turns into dust. Right now, I only have spiritual concerns. I know this may sound messed up, but as each day it grows closer, I grow more peaceful inside. I have no fear at all."

On death row for seven years, Mr. Fuller recalled how he felt lured to the outlaw life even as a child. Small acts of rebellion, he said, "felt good at the time - just being bad."

He bounced between the police station, the probation office and state prison for a series of thefts. Released from prison in 1988, the thief turned killer in less than a year.

Arrested for the March 1989 murder of Loretta Stephens, a 68-year-old Lamesa woman, he was convicted and sentenced to die the following year.
On Valentine's Day 1990, Mr. Fuller arrived at the Ellis I prison unit and was assigned Texas death row No. 964.

During the first stage of his appeal, Mr. Fuller argued that his conviction should be set aside because of the damning testimony of a controversial psychiatrist, the revelation of his alleged links to a neo-Nazi prison gang and the exclusion from his jury of a woman with reservations about the death penalty.

The Texas Court of Criminal Appeals rejected all of Mr. Fuller's arguments, noting the senselessness of Mrs. Stephens' death. Mr. Fuller, the court wrote, could have easily spared Mrs. Stephens' life. He had been able to break into her house and steal $500 while she was sleeping and could have left, "no one the wiser."

Instead, the court said, Mr. Fuller was "overcome by a sudden, inscrutable impulse to take a human life," and he began to beat and suffocate his victim. As a final affront, the court said, Mr. Fuller then "raped her dying body."

Asked about his crime during the interview, Mr. Fuller said he robbed Mrs. Stephens for money to buy drugs and killed her to eliminate a witness. He had no easy answer for why he raped a dying woman.

"I'd like to know the answer to that question myself. [It's] one of the things that's made my time hard down here. Tried to erase it from my mind for years. It keeps coming back to haunt me."

The Texas Court of Criminal Appeals upheld Mr. Fuller's death sentence in March 1992. The U.S. Supreme Court refused to examine the case in June 1993, ending the mandatory phase of his appeal.

Mr. Fuller's attorneys began the second phase of his appeal, using many of the same facts to argue that his constitutional rights had been violated.

A writ of habeas corpus was filed with the judge who presided over Mr. Fuller's trial - and rejected in October 1994. The Court of Criminal Appeals heard the new appeal, and also rejected it five months later.

Rejected by a federal district court judge a year later, the appeal then moved to the 5th Circuit. Mr. Fuller argued that his constitutional rights had been violated because he was denied state funds to hire expert witnesses during trial, specifically a psychiatrist and pathologist of his own.

The court said Mr. Fuller should have been permitted to demonstrate his need for those witnesses but ruled that the mistake was a "harmless error, not the denial of a constitutio nal right."

Rejecting his appeal in May, the court wrote that "the contemptible facts of this case need not detain us long."

A request for the U.S. Supreme Court to take up the case was made on Sept. 22. While that request was pending, the trial judge issued a death warrant ordering Mr. Fuller's execution on Nov. 6.

About an hour before his execution, Mr. Fuller's attorneys received by fax a final notice from the U.S. Supreme Court: "The application for stay of execution of sentence of death þ is denied."
As his last words, Mr. Fuller uttered a prayer to Jesus: "Thank you for saving me." Seven years after arriving on death row, Aaron Lee Fuller was executed.

"Most people," said Ricky Smith, the district attorney for Dawson County who prosecuted Mr. Fuller, "here or anywhere else, think that's a long time."

Death in California

Before the 1972 federal moratorium on the death penalty, California's record of capital punishment rivaled that of Texas. Between 1893 and 1967, the state of California executed 501 prisoners, almost seven per year.

Hanging remained the preferred form of execution until 1938, when it was replaced by the gas chamber.

The last man executed before the federal moratorium was Aaron Mitchell, a seasoned car thief executed April 12, 1967, for the murder of a Sacramento policeman during a robbery. His final words after 21/2 years on death row: "I am Jesus Christ."

Where Mr. Johnson's death marked only a pause in executions in Texas, Mr. Mitchell's death in the California gas chamber marked an end to anything other than an occasional execution in the Golden State.

In 1977, under the new Supreme Court guidelines, the California Legislature put a new death penalty on the books. And a new generation of death row inmates started showing up at San Quentin in 1978.

In 1978, Robert Alton Harris was a 25-year-old thief and killer. Just released from prison, where he had served time for fatally beating a roommate, Mr. Harris kidnapped and murdered John Mayeski and Michael Baker, both 16, who had stopped at a Jack-In- The-Box in San Diego while on a fishing trip.

Mr. Harris was sentenced to die in 1979. But his execution - California's first in 25 years - did not occur until 1992. By that time, 19 other states had resumed executions in the country, having killed 168 prisoners.

Mr. Harris' execution became a battle of wills between the 9th Circuit Court of Appeals, which seemed determined to block his execution at all costs, and the U.S. Supreme Court, which wanted it to proceed.

With Mr. Harris scheduled to die in the gas chamber just after midnight on April 21, 1992, the 9th Circuit issued a series of last-minute orders blocking the execution - one of which arrived after Mr. Harris was strapped into the gas chamber and on the cusp of death. Each order was overturned by an increasingly exasperated Supreme Court, which finally issued an unusual order blocking any additional delay.

"No further stays of Robert Alton Harris' execution," the high court decreed, "shall be entered by the federal courts except upon the order of this court."

Mr. Harris was returned to the gas chamber at 6 a.m. Ten minutes later, cyanide pellets were dropped into a sulfuric acid and water solution. Pronounced dead at 6:21 a.m., the three-time killer's last words were: "You can be a king or a street sweeper, but everyone dances with the grim reaper."

California has since executed three more prisoners, the last two by lethal injection. All four of those executed were white.

The life of John Lee Holt

John Lee Holt, according to court records, was a menace early in life. Brain damaged at birth, he engaged in acts of self mutilation and, records show, "gave a cousin pesticide to drink."

As a 13-year-old, he knocked an elderly woman to the ground and snatched her purse while masquerading as a helpful Boy Scout. A few years later, he raped a 90-year-old woman and robbed her of $500.

In 1988, he was convicted of an apartment burglary that netted a cash haul of $1.57.

Medical testimony indicated Mr. Holt suffered from a brain injury. But his parents claimed the teenage rapist was "born from the devil." And, according to court records, they wished that he, and not his twin, had died as an infant.

Mr. Holt's probation for the 1988 burglary was revoked for smoking marijuana, and a warrant had been issued for him when he was arrested for the July 1989 rape, robbery and murder of 66-year-old Marie Margie Axtell in her home in Bakersfield, Calif.

At the time, Mr. Holt had been working as a salesman peddling cleaning supplies door to door. Mr. Holt told police he "snapped" after Mrs. Axtell rebuffed his sales pitch. He forced himself inside her home, pocketed loose jewelry, downed a root beer, and so domized and choked her. She died from her injuries in a hospital nine days later.

A jury took 60 minutes on May 30, 1990, to sentence Mr. Holt to death. He was sent to California's death row as Inmate E58200. For the first three years, his mandatory appeal went nowhere because an attorney had not been appointed to represent him.

In the appeal that was eventually filed with the California Supreme Court, Mr. Holt's lawyer challenged numerous aspects of his trial - ranging from jury selection to questions about evidence. In an unusual twist, Mr. Holt also argued that the three-year delay in appointing a lawyer denied him a right to a speedy appeal.

In a 163-page ruling in July, the court rejected every element of Mr. Holt's appeal - including his complaint about the delay in appointing a lawyer.
The delays, said the court, are necessary to give the court time to screen lawyers to "ensure that competent representation is available" for death row prisoners.

Although his appeal was rejected, Mr. Holt is in no immediate threat of execution. The second stage of his appeal, one that frequently takes years to be heard by a succession of judges, is just beginning.

Appellate attorney Robert M. Myers, who said he believes Mr. Holt is "legally innocent" of the crime, declined to speculate how much longer his appeal might take.

A look to the future

As different as the history of executions in Texas and California might be, officials in both states have taken steps in recent years to expedite appeals.

In Texas, the law has been changed to allow both the direct appeal and the habeas process to start at the same time. And the state has recently made money available to pay attorneys handling some of the optional, second-stage appeals.

In California, officials have taken steps they hope will speed up the appointment of lawyers for death row appeals - increasing the pay for private lawyers appointed by the California Supreme Court.

Congress, too, has attempted to simplify the appeals process, setting deadlines for end- stage appeals and limiting the number that can be filed.

Mr. Fuller, nine days before his execution, said he knew what such changes will bring to death row.

"In the near future, we're going to see the death machine really crank up," he said in his final interview. "It's no holds barred on the death penalty - on executions anyway."

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Staff writer Tim Wyatt and staff researcher Jeanette Prasifka contributed to this report.