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Legal limitations constrain Texas death penalty case

by Ed Lyon

Shortly after Adolph Hitler’s election as Germany’s chancellor; on the night of February 27, 1933; the Reichstag in Berlin, Germany, was allegedly burned by an arsonist. The next day, Hitler persuaded President Paul von Hindenburg to sign a lawful decree called “For the Protection of the People and the State” (“the decree”). This law abrogated the German constitution’s Bill of Rights and, on April 24, 1933, was used to hamstring Germany’s judiciary and abolish the writ of habeas corpus.

Fast forward to 1995, Oklahoma City, Oklahoma, U.S.A. A disaffected citizen, Timothy McVeigh, effects the bombing of the Alfred P. Murrah Federal Building. Led by then-Texas Congressman Tom DeLay, the U.S. Congress enacted its own version of the decree — the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). AEDPA has, like its historical predecessor, effectively managed to reduce the scope of the U.S. Constitution’s Bill of Rights and severely weaken what was once “The Great Writ” of habeas corpus. Ironically, the correlation between the Reichstag burning and Murrah bombing was first made by The Daily Oklahoman in its headline of June 29, 1985. The correlation between the decree and AEDPA naturally follows.

Robert Will’s case is a perfect example.

Harris County Sheriff’s Deputy Barrett Hill was gunned down in December 1999. Suspect Robert Will was in handcuffs when the shooting occurred. Investigators found no traces of nitrates that would have been left by a discharging pistol on Will’s hands. The impression of a footprint taken at the shooting scene did not match either of Will’s feet. Several witnesses related to authorities another man confessed to shooting Deputy Hill, and one of the prosecution’s own witnesses was proven to be problematic. As icing on the prosecutor’s case, at every day of Will’s trial the courtroom was packed with uniformed police officers who were no doubt staring at each juror throughout each day. Not unexpectedly, under those circumstances, the jury convicted Will of capital murder. He was sentenced to death.

A state habeas attorney, who was ill, failed to investigate, uncover and bring these many irregularities to the Texas trial court’s attention. The court merely signed the prosecutor-prepared findings of fact and conclusions of law, effectively turning an adversarial denial into a state court finding. One of AEDPA’s ill-thought-out requirements is that federal courts must defer to state court’s findings.

Federal Judge Keith P. Ellison’s hands are tied by AEDPA’s procedural bars from granting Will the relief he deserves. Judge Ellison beseeched the Fifth Circuit federal appeal court, which has fewer reviewing constraints under AEDPA than the district courts do, to grant Will a certificate of appealability, then hear the merits of Will’s case.

The “Anti-Terrorism” aspect of AEDPA’s title did nothing to deter the 2001 attacks that destroyed the World Trade Center, damaged the Pentagon, and culminated in a death toll exceeding that of Pearl Harbor in 1941. The only thing AEDPA has accomplished is to deprive U.S. citizens of their constitutional rights and pare the judiciary’s power and authority. As pointed out by retired federal appeals Judge Alex Kozinski, federal judges “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”

Robert Will’s case is a perfect example. See: Will v. Davis, U.S.D.C. (S.D. TX), Case No. H-07-CV-1000 (2018).


Additional sources: deathpenaltyinfo.org; The Rise And Fall of the Third Reich, William R. Shire, pp. 267, 271, Fawcett Publications, Inc., (1962); The Daily Oklahoman, June 29, 1995

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