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BEFORE THE GOVERNOR FOR THE STATE OF TEXAS
AND
THE BOARD OF PARDONS AND PAROLES
In Re
Toronto Markkey Patterson,
Applicant
APPLICATION FOR REPRIEVE FROM EXECUTION,
AND COMMUTATION OF SENTENCE
REQUEST FOR INTERVIEW PURSUANT TO
37 Texas Administrative Code '143.43(d),(e) and
37 Texas Administrative Code '143.57(e),(f)
REQUEST FOR HEARING PURSUANT TO
37 Texas Administrative Code '143.43(b)(3) and
Administrative Procedures Act '2001.001 et seq
REQUEST FOR COMPLIANCE WITH
Texas Open Meetings Act
Texas Government Code '551.001 et seq
REQUEST FOR COMPLIANCE WITH
Texas Constitution
Article 4, '11
A. INTRODUCTION
Toronto Markkey Patterson (hereinafter, AToronto@) is scheduled for
execution after 6:00 p.m. on
August 28, 2002. Toronto's case presents this Board and the Governor
with a request for reprieve and
commutation to a sentence less than death. Residual doubt remains whether
Toronto even committed
this offense, and the most damning evidence that was presented against
him was a confession he gave
that did not even match the physical and forensic evidence in the case.
That confession was given in
response to a technique of police interrogation that, a month later
in another capital murder
investigation, caused another young suspect to confess to a capital
crime it was later shown he did not
commit. This fact was kept from Toronto's jury during his trial. More
importantly, Toronto was only
seventeen years old at the time of the offense. Given the Supreme Court's
recent prohibition against
the execution of mentally retarded offenders, it seems likely that
in the near future the execution of
seventeen year old offenders will be banned as well, since many of
the same considerations apply. It
would be a shame and an embarrassment to execute Toronto (or any other
juvenile offender) only to
have the Supreme Court announce in a year or two that such a practice
violates the Eighth
Amendment. To spare his life now would also relieve Texas and its citizens
from the disapprobation of
the rest of the world, which universally considers the execution of
offenders younger than eighteen to
be on a par with such practices as lynching, slavery, torture, piracy
and genocide. Moreover,
Toronto's trial attorneys failed to present substantial evidence in
mitigation of the death penalty, and
failed to educate his jury with respect to the lesser culpability attached
to a juvenile offender, who for
reasons of simple biology has a lesser capacity for reflective judgment
and impulse control than a
comparable adult offender. Ordinarily it might be expected that the
judicial system could account for
such deficiencies of counsel by offering relief in the habeas corpus
context. Unfortunately, Toronto's
initial state habeas lawyer failed to challenge the competency of his
trial attorneys in any of these
respects. Issues not raised in state habeas corpus cannot successfully
be raised in federal court, so
Toronto's complaints were lost to him in the federal forum as well.
At this point only the executive
branch can rectify the fact that Toronto was sentenced to death by
a jury that never got to examine
many of the very best reasons he should have been spared the death
penalty. Finally, in light of
persuasive evidence that Toronto is no danger in prison and is unlikely
to commit criminal acts of
violence in the future which will pose a continuing threat to society,
it would be contrary to the public
policy of Texas to end his life as a punishment for crime. Toronto
has demonstrated by his conduct
since commission of the offense for which he was convicted that he
can be rehabilitated successfully
in prison and that there is no need to execute him in order to assure
the safety of society.
B. INFORMATION REQUIRED BY 37 TAC '143.42
1. Name of Applicant:
Toronto Markkey Patterson
2. Identification of Agent Presenting Application:
J. Gary Hart, Attorney for Toronto Markkey
Patterson
3. Required Copies of Court Documents:
The required
court documents are attached as Exhibit A to this application.
Toronto's execution
date is set for August 28, 2002.
4. Statement of the Offense:
Toronto Markkey
Patterson was convicted of the capital murder of Ollie
Brown in Dallas
County, Texas and sentenced to death on November 21,
1995.
5. Statement of the Appellate History:
The Texas Court
of Criminal Appeals affirmed Toronto's conviction and
death sentence
in an unpublished opinion on January 13, 1999. Patterson v.
State, (Tex.Cr.App,
No. 72,282, delivered January 13, 1999). The United
States Supreme
Court denied Toronto's petition for certiorari on October 4,
1999.
Toronto applied
to the 291st District Court of Dallas County and the Texas
Court of Criminal
Appeals for a post-conviction writ of habeas corpus on
September 8,
1997. On February 3, 1999, the Court of Criminal Appeals
denied relief
based on the recommended findings of fact and conclusions of
law made by
the convicting court without an evidentiary hearing.
On October 4,
2000 Toronto filed a Petition for Writ of Habeas Corpus in
the United States
District Court for the Northern District of Texas. Judge
Joe Fish denied
relief on August 17, 2001, based on the findings and
recommendation
of Magistrate Judge William Sanderson, Jr. The United
States Court
of Appeals for the Fifth Circuit denied Toronto's Application
for Certificate
of Appealability on February 26, 2002, in an unpublished
opinion. Toronto
filed a Petition for Writ of Certiorari in the United States
Supreme Court,
which was denied on June 28, 2002.
6. The Legal Issues Raised:
On direct appeal,
Toronto raised 23 points of error. Toronto challenged the
legal and factual
sufficiency both of the evidence adduced to convict him,
and of the evidence
tendered at the punishment phase to show his future
dangerousness.
In three points of error he contended that the trial court
erred in excluding
defense evidence that the detective who took Toronto's
confession had
extracted a false confession from another capital murder
suspect a month
later using similar interrogation tactics. In a related point of
error, Toronto
claimed it was a violation of due process to have denied him
access to police
records regarding the detective's interrogation of the
innocent capital
murder suspect. Toronto complained of the admission of an
oral statement
he made before receiving his constitutional Miranda
warnings, and
of the prosecutorial use of his post-arrest silence once he had
been Mirandized.
In three points of error he complained of the failure of
the trial court
to instruct the jury at the punishment phase of trial regarding
minimum parole
ineligibility for a capital life sentence. Toronto argued that
his final summation
at the punishment phase of trial was illegally restricted,
preventing him
from arguing he would not be a future danger to anyone if
incarcerated
on a capital life sentence. He also argued he was prejudiced
by the introduction
of gruesome autopsy photographs. Finally, Toronto
raised certain
challenges to the constitutionality of Texas's statutory death
penalty which
were summarily dismissed as having been raised and
rejected before
in previous cases.
In his state
application for writ of habeas corpus, Toronto's counsel raised
only five issues
in a six page document. State habeas counsel alleged that
Toronto's trial
counsel were constitutionally ineffective for failing to call
Toronto to the
stand at a pre-trial suppression hearing to establish that his
statements to
the detective had been a product of coercion. He also alleged
ineffectiveness
because Toronto's trial counsel had made certain allusions
to Toronto's
extraneous criminal conduct, and failed to object to evidence
suggesting gang
affiliation, during the course of the trial. State habeas
counsel also
complained of trial counsel's failure to object to the State's
erroneous jury
argument at the punishment phase of trial. Finally, State
habeas counsel
contended that Toronto's due process and equal protection
rights were
violated because he was forced by the statutory post-conviction
scheme under
Article 11.071 of the Texas Code of Criminal Procedure to
pursue his state
habeas remedies contemporaneously with his direct appeal.
Before proceeding
into federal court, represented by a new attorney,
Toronto filed
a subsequent post-conviction application for writ of habeas
corpus under
Section 5 of Article 11.071. There he argued that his trial and
appellate counsel
had rendered constitutionally deficient assistance of
counsel in failing
to raise the provisions of the International Covenant on
Civil and Political
Rights in bar of his execution. That treaty, which the
United States
has signed and ratified, expressly prohibits execution of
seventeen year
old offenders.
In his federal
petition for writ of habeas corpus, Toronto did not re-raise
any of the issues
that his initial state habeas counsel had raised. Instead,
federal habeas
counsel once again argued that Toronto's federal
constitutional
rights were compromised when the trial court prohibited
testimony that
the same detective who interrogated him extracted a false
confession from
another youthful suspect, using similar tactics, in another
capital murder
investigation a month after Toronto's interrogation. Federal
habeas counsel
also reiterated Toronto's appellate claim that the jury
should have
been instructed at the punishment phase about his minimum
parole ineligibility
if serving a capital life sentence. In addition, federal
habeas counsel
argued that both his trial and appellate counsel had rendered
constitutionally
deficient performances in failing to argue that imposing the
death sentence
would violate international law under the International
Covenant on
Civil and Political Rights. Finally, Toronto argued that his trial
counsel had
been ineffective in failing to investigate and present significant
mitigating evidence
at the punishment phase of his trial.
7. Requested Length of Reprieve:
Toronto seeks a reprieve of at least 120 days.
8. Grounds for Reprieve:
On June 3, 2002,
Toronto filed a petition with the Inter-American
Commission on
Human Rights (hereinafter, AIACHR@), alleging
violation of
a jus cogens peremptory norm of international law by the
United States.
On June 10, 2002, the Commission formally
requested the
United States to Atake precautionary measures to
preserve Mr.
Patterson's life pending the Commission's
investigation
of the allegations in the petition.@ See Exhibit B. On
June 12, 2002,
Roger F. Noriega, United States Ambassador to the
Organization
of American States, forwarded the request for
precautionary
measures to preserve Toronto's life pending
disposition
of his petition with the IACHR. Exhibit B, supra.
Toronto now
asks that the Texas Board of Pardons and Paroles
(hereinafter,
ABoard@) respond to this request by recommending a
reprieve of
sufficient length to allow the IACHR to release its
report in the
case of another juvenile from Nevada who is under a
sentence of
death, Michael Domingues. Pursuant to the IACHR's
procedures,
the final Domingues report should be issued no later
than December
of 2002. The IACHR has already issued a
confidential
preliminary report in Domingues's case finding that the
United States
is in violation of international law in the execution of
juvenile offenders.
9. Victim Impact
No evidence of
the effect of Toronto's crime on the family of the victims
was produced
at trial. It would, therefore, be presumptuous for undersigned
counsel, or
for Toronto himself, to speculate about how the family of the
deceased children
were impacted by their loss. Clearly, the death of Ollie
Brown was, as
in all cases of this kind, a terrible tragedy, the mental and
emotional consequences
of which most of us cannot even imagine.
10. Grounds for Commutation:
Some residual
doubt remains that Toronto even committed the instant
offense. He
testified at trial to deny it, and continues to deny it to this day.
Evidence was
withheld from Toronto's jury that would have shown that
the police detective
who took his incriminating statement had extracted a
false confession
from another youthful capital murder suspect, using the
same interrogation
techniques used against Toronto, just one month after he
took Toronto's
statement.
Toronto was only
seventeen years old at the time of the offense. Like the
mentally retarded,
juveniles as a class are an inappropriate subject of capital
punishment.
Juvenile brain development is insufficient to attribute to them
the same level
of culpability as an adult, and without the requisite degree of
culpability,
the retributive and deterrent goals of capital punishment simply
cannot be met.
Execution of juvenile offenders violates international law.
Texas is one
of the few remaining Arogue@ states that continue to execute
seventeen year
old offenders, a practice that the rest of the world regards
to be as morally
reprehensible as torture, slavery, piracy, and genocide.
With respect
to the appropriateness of the death penalty for Toronto in
particular,
he received grossly ineffective assistance of counsel at every
stage of the
proceedings against him. Trial counsel failed to present more
than a thumbnail
sketch of his abused and rudderless childhood; much more
could have been
presented at the punishment phase of his trial. Nor did trial
counsel attempt
to argue that execution of a seventeen year old offender
would violate
either the Eighth Amendment or international law. Indeed,
trial counsel
failed even to try to highlight the fact of his youth as a
mitigating factor,
neglecting to present expert testimony to persuade the jury
on an individualized
basis that as a juvenile Toronto should not be held as
accountable
for his actions as would an adult. Toronto's initial state habeas
counsel then
failed to raise these deficiencies of trial counsel in Toronto's
initial writ
application, thus rendering such claims forever lost for purposes
of judicial
review. Although Toronto's federal habeas counsel attempted to
highlight the
deficiencies of trial counsel, because of the operation of the
Antiterrorism
and Effective Death Penalty Act (hereinafter, AAEDPA@),
the federal
courts declined to review the merits of his claims.
Evidence not
available to the jury at the time of Toronto's sentencing
establishes
that he is not, or is no longer, likely to commit criminal acts of
violence in
the future such that he will be a continuing threat to society.
C. WHY A COMMUTATION / REPRIEVE SHOULD BE GRANTED:
1. RESIDUAL DOUBT
a. Toronto has always maintained his innocence
Toronto testified at the guilt phase of his capital murder trial, and
denied committing the offense. He
admitted being at the scene shortly before the offense occurred, and
that he had taken the gold rims
from the premises under duress from two Jamaican drug dealers, but
testified that his cousin Kimberly
and her two daughters were still alive when he and the Jamaicans left
the house. Toronto continues to
deny he shot and killed anyone.
b. Other Suspects
Significant questions remain about whether Toronto did indeed commit
this offense. The Jamaican drug
dealers in Toronto's account did, in fact, exist, and were not a figment
of his imagination. Kimberly's
sister, Valerie Brewer, testified that she knew AJamaican Clyde@ and
AJamaican Dee,@ and so did
Kimberly. (19 RR 3211, 3222) Dallas Police Department offense reports
indicate that Kimberly was
arrested in August of 1993 for peddling drugs, and skipped town in
January of 1994, not to return until
shortly before her death. See Exhibit C, Dallas Police Department Offense
Reports. It is at least
conceivable that the Jamaicans returned to the house to kill Kimberly
and her children for some reason
relating to their business of selling illicit drugs. Moreover, Ollie
Brown, who was Kimberly's sometime
boyfriend and the father of her two children, arrived at the scene
of the killings simultaneously with the
paramedics who were called to the scene. (22 RR 3801) When the police
arrived, they tested his hands
for the presence of antimony and barium, finding levels that were consistent
with someone who had
recently discharged a firearm. (22 RR 3756-3758) And though the jury
was not allowed to hear it, Ollie
Brown=s polygraph results when asked whether he murdered his family
proved Ainconclusive, but
were leaning toward deception.@ (22 RR 3820-3825) See also Exhibit
C, supra. Nevertheless, once
the police focused their investigation on Toronto, any investigation
of Ollie Brown ceased.
c. Questionable Interrogation
The most damning evidence against Toronto was unquestionably the second
statement he made to
Homicide Detective K. W. Wiginton, in which he admitted for the first
and only time that he in fact
shot Kimberly and her two children. But his description of the shootings
of the children is at odds with
the physical and forensic evidence, and there is good reason to believe
the confession was false.
Toronto's jury never got to hear evidence that, only a month after
his interrogation of Toronto, using
interrogation techniques similar to those Toronto told the jury he
had used to question him, Wiginton
obtained a confession from another youthful capital murder suspect
that proved to be utterly false. It is
only natural for a jury to doubt that a truly innocent person would
ever confess to a brutal crime under
any circumstances short of torture. Toronto's jury was not allowed
to hear critical evidence that may
have overcome that doubt and persuaded them that his second statement
was false. Nor was
Toronto's jury privy to an expert evaluation whether the circumstances
of the interrogation might have
been such as to cause a juvenile of Toronto's particular psychological
makeup falsely to confess.
i. Toronto's Account of the Interrogation
Toronto testified that he was taken to a small interrogation room with
carpet on the walls and floor
sometime between 7:00 and 7:15 p.m. on June 7, 1995, and left waiting
there for about a half an hour.
(23 RR 4025-4026) The room had a table and two chairs. (23 RR 4026)
When Wiginton first entered
the room, he was friendly, and Toronto felt he could trust him. (23
RR 4027-4028) But he was also
confused, and a little bit afraid of Wiginton, since this was his Afirst
time being in a room and in some
trouble like that.@ (23 RR 4028-4029) He had, in fact, never been interrogated
by a police officer
before. (22 RR 4038) He gave Wiginton a statement in which he admitted
his presence at the crime
scene, but not to the murders themselves. (23 RR 4027-4031)
When Wiginton re-entered the room to take a second statement after consulting
with Detective
Penrod, he began to shout and forced Toronto to sit in the corner.
(23 RR 4031) He was red-faced and
angry, and close enough to spit in Toronto's face. (23 RR 4031-4032)
He accused Toronto of lying in
his first statement, and told Toronto (falsely) that police had recovered
the gold rims and the murder
weapon. (23 RR 4032) Toronto then asked for a lawyer, and repeated
the request a number of times.
(23 RR 4032, 4042, 4048) Wiginton told Toronto he should not bankrupt
his family with a lawyer, and
that nobody would Aever want to talk to me, ain't going to be able
to get no lawyer unless I sign this
paper.@ (23 RR 4033, 4034) Wiginton then described the murder scene
to Toronto, which was the
first Toronto heard of the details of the shootings. (23 RR 4034) Wiginton
accused Toronto of killing
Kimberley, Jennifer, and Ollie, in order to obtain the rims. (23 RR
4034) He yelled at Toronto, and
poked and pushed him with his finger in various places to illustrate
where the victims had been shot,
causing his head to move to the side. (23 RR 4036, 4038, 4047) The
accusations persisted for a half an
hour before Wiginton began to write out the second statement. (23 RR
4043) Toronto was upset, and
cried the whole time Wiginton wrote out the second statement. (23 RR
4034-4035, 4038) Toronto had
never asked to make a second statement, but once Wiginton began to
write, Toronto asked that the
statement be electronically recorded. (23 RR 4039, 4043) Wiginton refused,
claiming the room lacked
electrical outlets. (23 RR 4039-4040) At one point Wiginton's beeper
went off, and after looking at the
display, he informed Toronto (falsely) that Toronto's fingerprints
had been found on the murder
weapon. (23 RR 4045) Toronto only signed the second statement because
he had been held
incommunicado in the room for over four hours, scared and confused.
(23 RR 4047)
ii. Michael Martinez's Interrogation
Earlier Michael Martinez had testified, outside the jury's presence.
(22 RR 3915) A twenty-one year
old man, Martinez was arrested and charged with capital murder in July
of 1995. (22 RR 3916) He
was placed in a small interrogation room with two chairs and a table,
and carpet on the walls, and
made to wait for fifteen minutes. (22 RR 3918-3919) Martinez had never
been in trouble with the law
before, and never subjected to police interrogation. (22 RR 3921) At
first Wiginton was friendly with
Martinez, but he turned Arude@ and forced him to sit in the corner
when Martinez told him where he
had been on the night of the murders. (22 RR 3926-3927) Wiginton sat
up very close to Martinez and
looked at him Astraight in the eyes.@ (22 RR 3926) Wiginton assured
Martinez that he knew Martinez
was guilty, and that Martinez was Agoing to go down for these crimes.@
(22 RR 3921) After taking
one statement from Martinez, Wiginton told Martinez that he knew he
was a liar. (22 RR 3924) He
yelled at Martinez and intimidated him, telling him he would Aget the
needle.@ (22 RR 3925-3927) He
told Martinez he had witnesses Athat can say you did it.@ (22 RR 3926)
Wiginton then wrote out a
second statement, telling Martinez that the first was Abullshit.@ (22
RR 3925) He told Martinez to
Asign right here and you can go home.@ (22 RR 3928) He threatened to
lock up Martinez's girlfriend
and take her children away from her if he did not sign. (22 RR 3928)
This continued Aall night.@ (22
RR 3928) Martinez continually denied Wiginton's accusations, but he
ultimately signed all three
statements because he was Aconfused.@ (22 RR 3929-3932) He was eventually
exonerated of the
offense. (22 RR 3916)
iii. The Judicial Response
The trial court would not allow the jury to hear Martinez's testimony.
When Toronto complained on
appeal that Martinez's testimony should have been admitted as relevant
to both the voluntariness and
the truthfulness of Toronto's second statement, the Texas Court of
Criminal Appeals upheld the trial
court. The Court of Criminal Appeals reasoned that admitting Martinez's
testimony might lead the jury
to believe that Detective Wiginton was of questionable character and
credibility with respect to Athe
topic of interrogation of capital murder suspects.@ Patterson v. State,
(Tex.Cr.App., No. 72,282,
delivered January 13, 1999) (unpublished slip op. at 20). When Toronto
attempted to raise the issue
again in his federal habeas corpus proceedings, the federal courts
were constrained to defer to the
Court of Criminal Appeals's holding, under the provisions of the Antiterrorism
and Effective Death
Penalty Act (hereinafter, AAEDPA@). Thus, the courts have proven to
be much more solicitous of
the reputation of a Dallas police detective than of the rights of a
juvenile offender standing trial for his
life.
The Board of Pardons and Paroles need not make the same choice. Toronto's
jury might have
believed that, even if Toronto's testimony about the circumstances
of the confession were true,
Wiginton's coercive tactics were simply not of such a character as
to induce an innocent man to
falsely confess. Martinez's testimony shows that, while investigating
another brutal capital crime, the
same interrogator, using substantially the same method of interrogation
on another young man who had
never submitted to police interrogation before, had in fact extracted
a false confession. This would
serve to support the inference that Wiginton's particular method of
interrogation could have caused
Toronto to sign a statement that was not true, and would tend to deflate
the jury's natural and
entrenched presumption that an innocent man would not have confessed
under the circumstances.
Martinez did. It is more than conceivable that Toronto did too. The
Board should take Martinez's
testimony into account in considering the weight of residual doubt
that Toronto committed the crime for
which the jury convicted him.
d. False Confessions
There are other reasons to doubt the reliability of Toronto's second,
and most incriminating statement;
reasons that the jury also did not hear. Toronto's jury heard nothing
of the recent developments in the
psychology of false confessions. While these developments do not definitively
show that Toronto's
second statement was false, they are relevant to the issue. The Board
should take them into account as
well.
In his ground-breaking 1992 book, The Psychology of Interrogations,
Confessions, and Testimony,
Dr. Gisli Gudjonsson identifies three types of false confession. One
of those he calls the
Acoerced-compliant false confession.@ He describes this type of false
confession thus:
AThe coerced-compliant
type of false confession results from the pressures
of coerciveness
of the interrogation process. The suspect does not confess
voluntarily,
but comes to give in to the demands and pressures of the
interrogators
for some immediate instrumental gain. * * * The perceived
instrumental
gain may include the following:
1. Being allowed to go home after confessing;
2. Bringing the interview to an end;
3. A means of coping with the demand
characteristics, including the perceived pressure,
of the situation;
4. Avoidance of being locked up in police
custody.
AThe suspect's
perceived immediate instrumental gain of confessing has to
do with an escape
from a stressful or an intolerable situation. The suspect
may be vaguely
or fully aware of the potential consequences of making the
self-incriminating
confession, but the perceived immediate gains outweigh
the perceived
and uncertain long-term consequences. In addition, making a
false self-incriminating
admission or confession is perceived as more
desirable in
the short term than the perceived punishment of continued
silence or denial.
ASuspects may
naively believe that somehow the truth will come out later,
or that their
solicitor will be able to rectify their false confession.@
Pp. 227-228.
It is not just physical coercion that can result in this type of false
confession. AObservational studies
have shown that the use of physical force has given way to more psychologically
oriented methods,
such as feigned sympathy and friendship, appeals to God and religion,
the use of informants, the
presentation of false evidence, and other forms of trickery and deception.@
Richard P. Conti, The
Psychology of False Confessions, 2 The Journal of Credibility Assessment
and Witness Psychology
14, at 26 (1999). (Attached as Exhibit D) The length of the interrogation
is also a factor, as is isolation.
Id., at 27, 28. So are the particular character traits of the suspect
being interrogated, with children at
particular risk, since they are suggestible and relatively easily conditioned.
Id., at 25. APerhaps a
certain amount of stress applied to a normal person may get the truth
out of him or her; but if a lot of
stress is applied to the psychologically inadequate, the result could
likely be a false confession.@ Id.
Applying these factors to Wiginton's interrogation of Toronto, it is
not hard to imagine he might well
have confessed falsely to shooting Kimberly and her children. He was
taken to an isolated room and
held there incommunicado for more than four hours, which is a long
time for a seventeen year old to sit
still. Never having submitted to police interrogation before, Toronto
had no idea what to expect.
Wiginton was friendly at first, but when he did not immediately get
the results he wanted, he ratcheted
up the pressure until Toronto was crying, and no doubt would have said
anything just to escape the
room. Wiginton presented Toronto with an informant's story and false
evidence against him, making it
clear that he rejected Toronto's initial story (the one he has steadfastly
reiterated ever since), that he
believed Toronto was guilty, and that Toronto would go nowhere until
he confirmed Wiginton's belief.
That the confession Toronto eventually did make does not even comport
with the forensic facts of the
shooting bolsters the likelihood that, by that time, he was willing
to say anything that would relieve the
pressure of the immediate situation, with either little thought for
future consequences (a trait that is
typical of teenagers, and especially teenagers of disadvantaged backgrounds),
or the perception that his
immediate escape was more desirable even than the trouble such a confession
would surely bring
down upon him.
The jurors in Toronto's trial heard nothing about the psychological
factors that go into the
Acoerced-compliant@ type of false confession. Perhaps the reason is
that at that time, in 1995, the
psychological study of the dynamics behind false confessions was in
its infancy. If they had, they may
have begun to harbor doubts about the verity of his second statement
B particularly had they also been
allowed to learn that Wiginton had in fact extracted a false confession
a month later from Michael
Martinez using the same psychologically coercive interrogation tactics.
Unlike Toronto's jury, the
Board may take these factors into account in its consideration of the
possibility that Toronto may be
innocent of this crime.
e. Residual Doubt
Nothing that has been said up to this point establishes what the courts
would call evidence of Aactual
innocence.@ See Elizondo v. State, 947 S.W.2d 202 (Tex.Cr.App. 1997).
Nor does Toronto have any
such evidence to offer. For, although Aactual innocence@ is a claim
that can be raised in a state
post-conviction application for writ of habeas corpus, Toronto's initial
state habeas counsel conducted
no investigation into his innocence -- or for that matter, any investigation
at all. See Exhibit E, Affidavit
of Attorney Barry Bryant. Instead, state habeas counsel raised nothing
but record based claims, in a
six page pleading citing only one case. See Exhibit F, State Post-Conviction
Application for Writ of
Habeas Corpus. Although undersigned counsel was later able to secure
limited funds from the federal
courts for investigation, he felt it more imperative to investigate
trial counsel=s performance at the
punishment phase of trial in an effort to save Toronto=s life than
to attempt a more wide-ranging and
undoubtedly cost-prohibitive investigation into actual innocence. See
note 6, post.
For this reason Toronto is unable to present evidence of his Aactual
innocence@ to justify a
commutation of his sentence from death to life. He would ask the Board
instead, however, to take into
account the significant questions about his guilt that linger even
after the jury's verdict in this case.
The Board should keep those lingering questions in mind as it considers
the remaining grounds Toronto
asserts do justify a commutation to a life sentence. It is always a
terrible prospect that an innocent
man might be executed at the hands of the State. It is all the more
terrible a prospect that an innocent
juvenile could be put to death.
2. EXECUTION OF JUVENILES VIOLATES THE EIGHTH AMENDMENT
The United States Supreme Court recently declared that the execution
of mentally retarded offenders
violates the Eighth Amendment to the Constitution, in Atkins v. Virginia,
122 S.Ct. 2242 (2002).
Practically every consideration that went into the Court's conclusion
that executing the mentally
retarded is Aexcessive@ punishment would apply with equal or greater
force to the question whether
executing offenders who are younger than eighteen also constitutes
Aexcessive@ punishment for
Eighth Amendment purposes. There is reason to believe, therefore, that
before very long the issue will
go to the Supreme Court, and that the Court will categorically prohibit
application of the death penalty
to seventeen year old offenders like Toronto. Surely it would be preferable
to commute the sentence of
an offender like Toronto to a term of life imprisonment rather than
risk executing him, only to be told
within the next year or two that his execution violated the Eighth
Amendment to the United States
Constitution.
a. The Eighth Amendment Standard
Whether a particular punishment is excessive for purposes of the Eighth
Amendment is a question of
whether it is disproportionate in relation to the crime, according
to the Aevolving standards of decency
that mark the progress of a maturing society.@ Atkins v. Virginia,
supra, at 2247, quoting Trop v.
Dulles, 356 U.S. 86, at 100-101 (1958). The clearest and most reliable
indicium of the evolution of
society=s standards of decency is the action of the legislatures of
the various states. Id. But legislative
enactment does not Awholly determine@ the proportionality issue. Id.
Also relevant are the actual
punishments imposed by juries. Id., at 2249. See also, Thompson v.
Oklahoma, 487 U.S. 815, at 831
(1988) (plurality opinion). The Supreme Court looks further to the
views of relevant professional
organizations, the world community, and the general American public
as reflected in polling data.
Atkins v. Virginia, supra, at 2249, n. 21; Thompson v. Oklahoma, supra,
at 830-831. Moreover, in the
end, the Supreme Court will bring its own judgment to bear on the question,
inquiring further Awhether
there is reason to disagree with the judgment reached by the citizenry
and its legislators.@ Atkins v.
Virginia, supra, at 2247-2248. In making this latter judgment in the
context of juveniles, as in Atkins
with the mentally retarded, the Court will first ask whether the relative
culpability of the category of
offender at issue should be measured differently than the general run
of offenders, and second,
whether application of the death penalty to that category of offender
measurably contributes to the
social purposes the death penalty is thought to serve. Id., at 2250-2251;
Thompson v. Oklahoma,
supra, at 833.
Bringing these criteria to bear on the question whether the Eighth Amendment
currently prohibits the
execution of a seventeen year old offender, it is clear what the result
must be. The number of states
which have outlawed the execution of an offender younger than eighteen
is roughly equivalent to the
number that ban executing the retarded. In only fifteen states have
juries returned death sentences for
juvenile offenders in the last thirteen years (and only three states
have actually executed a juvenile in
the past nine). Every relevant professional organization condemns the
practice. The American public
generally disapproves. And the world community uniformly condemns the
execution of juvenile
offenders, including seventeen year olds. The relative culpability
of a seventeen year old offender is
low in comparison with a fully formed adult, for reasons similar to
those adduced to establish the
relative lack of culpability for the mentally retarded. Because of
this relative lack of culpability, it
cannot reasonably be said that the death penalty measurably serves
either the retributive or the
deterrent function that normally justifies imposition of the death
penalty. In short, all the relevant
indicators demonstrate that Texas' practice of executing seventeen
year old offenders presently
violates the Eighth Amendment.
b. The Legislative Judgment
At the present time, 28 states, plus the District of Columbia and the
federal government, do not
authorize the execution of a seventeen year old offender at all, under
any circumstances. This is
roughly equivalent to the number of states (30) that currently ban
execution of the mentally retarded.
Atkins v. Virginia, supra, at 2248. Of those states whose statutes
speak explicitly to the issue of
executing juveniles, roughly the same number of states that expressly
ban execution of the mentally
retarded (18) also ban execution of offenders younger than eighteen
(16). Id. At least six other states
have recently considered legislation that would raise the age of eligibility
to eighteen. The Supreme
Court found such pending legislation relevant in Atkins. Id., at 2248-2249.
No state has acted to
reduce its age of eligibility for the death penalty. The Supreme Court
found this fact significant in
Atkins as well. Id., at 2249. Thus, there currently exists practically
the same societal will to abolish the
death penalty for sixteen and seventeen year old offenders as for the
mentally retarded.
c. Jury Verdicts and Actual Executions
Over the last decade, only fifteen states have actually sent a juvenile
offender to death row. Amnesty
International, On the Wrong Side of History: Children and the Death
Penalty in the USA, AMR
51/058/1998, October 1, 1998 (Table 2); see also Juvenile Offenders
on Death Row (Washington
College of Law, American University (www.wcl.american.edu/humright/death
penalty/ juvstat.html)
(visited 7/01/02). Six states that provide statutorily for the death
penalty for sixteen and/or seventeen
year old offenders have no juveniles on death row. Since 1989, only
six states [Texas (most recently,
2002), Louisiana (1990), Missouri (1993), Georgia (1993), Virginia
(most recently, 2000), and
Oklahoma (1999)] have actually executed a juvenile offender. See Juvenile
Offenders on Death Row,
supra. This compares with five states over the same period of time
to conduct actual executions of
offenders who were at least arguably mentally retarded. Atkins v. Virginia,
supra, at 2249. Moreover,
in the last nine years, only three states, Texas, Virginia, and Oklahoma,
have actually executed an
offender who had not attained his eighteenth birthday at the time of
his offense. The percentage of the
total population represented by those three states is only 11 percent.
U.S. Bureau of the Census, 2000
Census (Total U.S. population, 281,421,906; Texas, 20,851,820; Virginia,
7,078,515; Oklahoma,
3,450,654).
In very recent years juries across the nation have shown even less of
a tendency than before to assess
the death penalty. The percentage of offenders sentenced to death who
were juveniles at the time of
the offense has declined dramatically over the last three years, from
5.1 % in 1999, to 1.8 % in 2001;
and as of June 30 of this year no juvenile offenders have been sentenced
to death. See Victor L.
Streib, The Juvenile Death Penalty Today: Death Sentences and Executions
for Juvenile Crimes,
January 1, 1973 - June 30, 2002 (Preliminary Compilation), at 8, Table
3, & 9 (http://www.
law.onu.edu/faculty/streib/juvdeath.htm). Thus, as with execution of
the mentally retarded in Atkins,
Athe practice@ of executing juvenile offenders Ahas become truly unusual,@
and, just as the Supreme
Court found in the context of the mentally retarded, here Ait is fair
to say that a national consensus has
developed against it.@ Id., at 2249. Moreover, there is A[a]dditional
evidence [that] makes it clear that
[the] legislative judgment reflects a much broader social and professional
consensus.@ Id., n. 21.
d. Relevant Professional Organizations
As was true for mental retardation, Aseveral organizations with germane
expertise have adopted
official positions opposing the imposition of the death penalty upon@
juvenile offenders. Id. They
include the American Bar Association, the American Psychological Association,
the American
Academy of Child and Adolescent Psychiatry, the National Mental Health
Association, The Children's
Defense Fund, The Center on Juvenile and Criminal Justice, The Coalition
for Juvenile Justice, The
Child Welfare League of America, The Juvenile Law Center, The Mid-Atlantic
Juvenile Defender
Center, The Youth Law Center, The Urban League, and Southwest Key Program,
Inc. The American
Law Institute's Model Penal Code contains a prohibition against the
death penalty for offenders
younger than 18. ALI Model Penal Code, ' 210.6, Commentary at 133 (Official
Draft and Comments,
1980).
e. The Views of Religious Organizations
In Atkins a majority of the Supreme Court also looked to Awidely diverse
religious communities in the
United States@ in ascertaining the status of society's attitude toward
executing the mentally retarded.
122 S.Ct. 2249, n. 21. A similar approach with respect to executing
juveniles reveals a similarly
widespread rejection of capital punishment for offenders younger than
eighteen within diverse religious
communities. See Stanford v. Kentucky, 492 U.S. 361, at 388, n. 4 (Brennan,
J., dissenting) (listing
amicus curiae).
Just by way of example, after Stanford was decided, the National Council
of the Churches of Christ in
the U.S.A., representing 140,000 congregations of many of the most
prominent Protestant
denominations in the country, and over 50 million churchgoers, adopted
a resolution in 1992 to voice its
specific opposition to the execution of offenders younger than eighteen,
and calling upon state
legislative bodies to ban the practice. The United States Conference
of Catholic Bishops filed an
amicus brief in Stanford, opposing the execution of juvenile offenders,
and given its general opposition
to the death penalty, there is no reason to believe the it does not
persist in that view. In joining the
amicus brief that the Atkins Court relied upon, the American Jewish
Committee, with 100,000
members and supporters, expressly alluded to the fact that it has earlier
joined other such amicus briefs
in opposition to the execution of offenders not yet eighteen years
old. See Brief Amici Curiae of the
United States Catholic Conference, et al. in McCarver v. North Carolina,
October Term 2001, No.
00-8727, at Appendix (List of Amici) (http://www.usccb.org/ogc/amicuscuriae
3.htm) The Commission
on Social Action of Reform Judaism has likewise taken a stand against
the death penalty in general,
and against executing juveniles in particular. Representing the Union
of American Hebrew
Congregations, with 900 congregations encompassing 1.5 million Reform
Jews, as well as the Central
Conference of American Rabbis, the Commission on Social Action of Reform
Judaism also joined the
amicus brief in McCarver, and similarly opposes the execution of offenders
younger than eighteen.
See Religious Action Center of Reform Judaism: Issues: Death Penalty
(www.rac.org//issues/issuedp.html); Press Release: Largest Jewish Organization
Calls on Okla.
Governor to Grant Clemency for Crimes Prisoner Committed as a Boy (www.rac.org//news/
020299.html).
f. Consensus of the World Community
Worldwide condemnation of execution of juvenile offenders is not simply
Aoverwhelming,@ as the
Supreme Court found international opposition to the execution of the
mentally retarded to be in Atkins.
Id., at 2249, n. 21. The opposition around the world to executing juveniles
is practically universal.
Every government in the world except the United States and Somalia
has ratified the United Nations
Convention on the Rights of the Child, without reservation to the provision
that bars the execution of
offenders younger than eighteen. Somalia has now signed the Convention,
and promises soon to ratify
it. The United States has signed and ratified the International Covenant
on Civil and Political Rights,
another international human rights treaty that categorically prohibits
the execution of offenders not yet
eighteen years old. Unfortunately, the United States has entered a
reservation to that portion of the
treaty that bars such executions, to the dismay of every other signatory
country. Only two countries in
the world continue actually to conduct juvenile executions (Iran and
the United States), and only the
United States does so under color and sanction of domestic law (actually,
only a small number of states
within the United States, excluding the federal government). The ban
on executing seventeen year old
offenders has attained the status of a jus cogens peremptory norm,
a kind of international Acommon
law@ that is so pervasively accepted that it is not even regarded by
the rest of the world as a subject
of valid exception. Other practices that have been recognized world-wide
to violate a jus cogens
peremptory norm include slavery, torture, piracy, and genocide. Toronto
has filed a petition with
the Inter-American Commission on Human Rights alleging that his execution
would violate
such a peremptory norm, and the IACHR has requested that the United
States take
precautionary measures to preserve his life until it can investigate
and rule on the petition.
g. Public Opinion Polling Data
A national Gallup poll on May 20, 2002, found that 69 percent of Americans,
or more than two-thirds,
oppose imposition of the death penalty upon juveniles. See Death Penalty
Information Center,
Summaries of Recent Poll Findings, at p. 3. (http://www.deathpenaltyinfo.org/Polls.html).
Thus, both
legislative judgment and actual practice are merely reflective of the
attitude of the general public.
h. Relative Culpability of Juvenile Offenders: Retribution & Deterrence
The Supreme Court Ahas already endorsed the proposition that less culpability
should attach to a crime
committed by a juvenile than to a comparable crime committed by an
adult.@ Thompson v.
Oklahoma, supra, at 835. The Court found it Aobvious@ that A[i]nexperience,
less education, and less
intelligence make the teenager less able to evaluate the consequences
of his or her conduct while at
the same time he or she is much more apt to be motivated by mere emotion
or peer pressure than is an
adult.@ Id. What was Aobvious@ to judicial intuition about fifteen
year olds in 1988 has since been
borne out in scientific research; and not only with respect to fifteen
year olds, but with respect to
seventeen year olds as well. Dr. Ruben C. Gur is a neuropsychologist
and tenured professor at the
University of Pennsylvania, with a primary appointment in Psychiatry,
and secondary appointments in
Neurology and Radiology. He is currently Chief of the Brain Behavior
Laboratory and Directory of
Neuropsychology, Department of Psychiatry at the Hospital of the University
of Pennsylvania. In June
of 2002, Dr. Gur conducted a detailed review of the published literature
on the topic of brain maturation
in humans. See Exhibit G, Declaration of Ruben C. Gur (verified), at
1-2. From that review Dr. Gur
has concluded:
Au. Summary and conclusions: The review of
neuroanatomic studies across methods and
approaches, and the few neurophysiologic
studies in humans, indicates considerable
convergence of findings with respect to brain
maturation during childhood, adolescence and
early adulthood. The overwhelming weight of
the evidence supports the early post mortem
studies indicating that the main index of
maturation, which is the process called
myelination, is not complete until sometime in
the beginning of the third decade of life
(probably at around age 20-22). Other
maturational processed, such as the increase in
subsequent elimination (pruning) in cell
number and connectivity, may be completed by
late adolescence, perhaps by age 15-17. More
data are needed to pinpoint the age at which
these maturational processes are complete.
Av. These results have rather profound
implications for understanding behavioral
development. The cortical regions that are last
to mature, particularly those prefrontal areas,
are involved in behavioral facets germane to
many aspects of criminal culpability. Perhaps
most relevant is the involvement of these brain
regions in the control of aggression and other
impulses, the process of planning for long-range
goals, organization of sequential behavior, the
process of abstraction and mental flexibility, and
aspects of memory including >working
memory. If the neural substrates of these
behaviors have not reached maturity before
adulthood, it is unreasonable to expect the
behaviors themselves to reflect mature thought
processes.@
Aw. The brain scan techniques have
demonstrated conclusively that he [sic]
phenomena observed by mental health
professionals in persons under 18 that would
render them less morally blameworthy for
offenses have a scientific grounding in neural
substrates. The evidence now is strong that the
brain does not cease to mature until the early
20s in those relevant parts that govern
impulsivity, judgment, planning for the future,
foresight of consequences, and other
characteristics that make people morally
culpable. Therefore, a presumption arises that
someone under 20 should be considered to have
an underdeveloped brain. Additionally, since
brain development in the relevant areas goes in
phases that vary in rate and is usually not
complete before the early to mid-20s, there is no
way to state with any scientific reliability that an
individual 17-year-old has a fully matured brain
(and should be eligible for the most severe
punishment), no matter how many otherwise
accurate tests and measures might be applied to
him at the time of his trial for capital murder.
This is similar to other physical characteristics
such as height. While we know in detail the age
at which the average adults reach their maximal
height, predictions for individuals are not easy to
make. Thus, although 18 is an arbitrary cutoff,
given the ongoing development of the brain in
most individuals, it must be preferred over 17 as
assuring that only the most culpable are
punished for capital crimes. Indeed, age 21 or
22 would be closer to the biological age of
maturity.@
Id., 13-15.
Indeed, recent research involving MRI techniques has shown that teenagers
actually respond to stimuli
with a different part of the brain than adults. Asked to identify the
emotion displayed in a series of
images of faces, the adults uniformly and correctly identified Afear,@
using the prefrontal cortex of the brain, which is the part of the brain
associated with Aexecutive@ functions such a planning,
goal-directed behavior, judgment and insight. Teenagers more often
than not misidentified the emotion
as Ashock,@ Asurprise,@or Aanger,@ perhaps because the MRI revealed
they were using a different
Alower@ part of the brain called the amygdala, associated with instinctual
Agut@ reactions to stimuli.
This difference may well explain the characteristic impulsiveness of
adolescents. See Sarah Spinks,
One Reason Teens Respond Differently to the World: Immature Brain Circuitry
(http://www.pbs.
org/wbgh/pages/frontline/shows/teenbrain/work/onereason.html); see
also Interview with Psychologist
Deborah Yurgelun-Todd (http://www.pbs.org/wgbh/pages/frontline/shows/
teenbrain/interviews/
todd.html). As Dr. Daniel R. Weinberger, a psychiatrist and Director
of the Clinical Brain Disorders
Laboratory at the National Institute of Health, has so succinctly and
alliteratively put it: AIt takes at
least two decades to form a fully functional prefrontal cortex.@ See
Exhibit F, Daniel R Weinberger,
Editorial: Teen Brains Lack Impulse Control, Seattle Post-Intelligencer,
Tuesday, March 13, 2001.
(Attached as Exhibit H)
Thus, research reveals that the adult brain is not fully developed until
an individual is in his early
twenties. As a result, the brain of a seventeen year old has a greater
tendency toward impulsiveness,
lesser reasoning skills, and less awareness of the consequences of
his decisions or actions. He is, in
short, developmentally unable to problem-solve and control his actions
as a mature adult would.
Accordingly, he cannot be considered among the Aworst of the worst@
for Eighth Amendment
purposes, in service of the retributive function of capital punishment,
and he is unable to respond to the
prospect of the death penalty as a deterrent in the way an adult would.
See D. Keating, Adolescent
Thinking, in AAt the Threshold,@ 54-89 (S. Feldman et al. eds., 1990);
W. Overton, Competence
and Procedures, in AReasoning, Necessity and Logic,@ 1-32 (W. Overton
ed. 1990); National
Institute of Mental Health, Teenage Brain: A Work in Progress, 2/6/01,
(http://www.nimh.nih.gov/publicat/teenbrain.cfm). The lack of higher
cognitive processing abilities that
regulate impulse control and decision making in the seventeen year
old reduces the degree of
culpability that can be attributed to him relative to a normal adult
engaging in the same criminal
behavior. Studies have shown that an adolescent typically does not
plan and often gets caught up in
unanticipated events, reacting in the moment, and regarding as Aaccidental@
what most adults would
have foreseen as likely consequences. Marty Beyer, Immaturity, Culpability
& Competency in
Juveniles: A Study of 17 Cases, Criminal Justice (Summer 2000), at
p. 27. And when under stress,
even the more cognitively developed adolescents are typically unable
effectively to use their most
advanced judgment and decision-making skills. Id.
The retributive purpose of the death penalty is a function of the relative
culpability of the offender.
Atkins v. Virginia, supra, at 2251. A seventeen year old's brain development
B or more precisely, the
lack thereof B necessarily reduces his culpability, much as the diminished
capacity of the mentally
retarded offender reduces his. Because a seventeen year old's ability
to control his impulses or
foresee the logical consequences of his conduct are not appreciably
better than that of a fifteen year
old, and only marginally better than that of the mentally retarded,
the retributive purpose of the death
penalty Ais simply inapplicable@ to him. Thompson v. Oklahoma, supra,
at 835-837; Atkins v.
Virginia, supra, at 2251. Likewise, the seventeen year old's relative
inability to deliberate on the
consequences of his conduct nullifies the deterrent function of the
death penalty. What is true of the
fifteen year old essentially holds true for the seventeen year old
offender as well: AThe likelihood that
the teenage offender has made the kind of cost-benefit analysis that
attaches any weight to the
possibility of execution is so remote as to be virtually nonexistent.@
Thompson v. Oklahoma, supra,
at 837. Moreover, what the Supreme Court said of the mentally retarded
with respect to the deterrent
function applies with equal force to a seventeen year old, viz: A[I]t
is the same cognitive and behavioral
impairments that make these defendants less morally culpable B for
example, the diminished ability to
understand and process information, to learn from experience, to engage
in logical reasoning, or to
control impulses B that also make it less likely that they can process
the information of the possibility of
execution as a penalty and, as a result, control their conduct based
upon that information.@ Atkins v.
Virginia, supra, at 2251. Thus, execution of a seventeen year old offender
makes no measurable
contribution to the purposes capital punishment is meant to serve,
and must be considered
Aexcessive.@
In Atkins the Supreme Court identified one more reason capital punishment
was peculiarly
inappropriate for the mentally retarded that has application to the
class of juvenile offenders as well.
The Court found that the Areduced capacity@ of the mentally retarded
increased the risk of imposition
of the death penalty despite factors that might call for a less severe
punishment. Id., at 2251-2252.
Like the mentally retarded, juvenile defendants in capital cases may
be peculiarly susceptible to the
danger of false confessions. Id. Indeed, in Applicant=s own case, he
gave an inculpatory statement
that not only failed to match the physical evidence in the case, but
which may also have been the
product of an interrogation technique that caused another youthful
suspect, a month later, to give a
demonstrably false confession. (21 RR 3601, 3610, 3650, 3691-3694;
22 RR 3734, 3915-3932; 23 RR
4025-4047) Moreover, a seventeen year old offender, like a mentally
retarded one, might be less able
to give meaningful assistance to counsel, may make a poor witness in
his own defense (as Toronto
undoubtedly did), and may display a demeanor at trial that creates
an unwarranted impression of a lack
of remorse, all to the detriment of his ability to persuade the jury
that sufficient mitigation exists to
justify a life sentence. Id., at 2252. For these reasons, like the
mentally retarded, juvenile capital
offenders Ain the aggregate face a special risk of wrongful execution.@
Id.
There exists, therefore, no justification to buck the legislative trend
to abolish the death penalty for
offenders under eighteen years of age, or to disagree with the view
of professionals, the American
public, and the world community that such executions are categorically
inappropriate. Execution of a
seventeen year old does not facilitate the retributive or deterrent
functions that otherwise justify such
an extreme sanction, and juveniles as a class face an intolerably disproportionate
risk of wrongful
execution. Construing the Eighth Amendment in accordance with Aevolving
standards of decency,@
the Supreme Court will almost surely hold in the not-too-distant future
that executing seventeen year
old offenders is per se excessive.
i. Toronto's Trial and Habeas Lawyers Failed to Raise the Issue
However, at no point in the course of his regular judicial proceedings,
including during his state habeas
corpus proceedings, did Toronto's lawyers ever attempt to argue that
to execute him would violate
either the Eighth Amendment or international law. Perhaps that is because,
until the Supreme Court
granted review in Atkins, there was no reason to believe that the issue
of evolving standards of
decency would be revisited any time soon in the context of the mentally
retarded, much less juvenile
offenders. Undersigned counsel has made several attempts to raise these
arguments belatedly, but they
have been and will almost surely continue to be rejected by the courts
as untimely. Toronto could be
executed without the benefit of any judicial review of these claims.
It would be shameful and
embarrassing for the State of Texas to execute Toronto in three weeks
time, only to have the courts
announce next year or the year after that the Eighth Amendment categorically
prohibits such
executions. The Supreme Court has made it clear in another context
that such a holding would be
retroactive. See Penry v. Lynaugh, 492 U.S. 302, at 328-330 (1989).
But because of the lack of
foresight of Toronto's attorneys, the courts are presently powerless
to rectify this situation. The
executive branch is not powerless, however, and the Board should guarantee
that the Eighth
Amendment will not be violated, while at the same time garnering the
gratitude and praise of
professional and religious organizations and, perhaps most importantly,
the international community, by
recommending that Toronto (and every other juvenile with an impending
execution date) receive a
commutation of his sentence to life imprisonment.
3. INEFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT
The lawyers who represented Toronto at every stage of his state proceedings,
from trial through his
state habeas corpus, utterly failed to utilize the fact of his juvenile
status as a mitigating factor militating
for a sentence of life imprisonment. Trial counsel never investigated
or presented significant evidence
about the details of Toronto's deprived and rudderless childhood. They
made no attempt whatsoever
to obtain expert assistance to educate the jury about the relative
lack of culpability that can be ascribed
to a seventeen year old offender. They never even argued to the jury
that Toronto's youth constituted
sufficient mitigation to justify a life sentence under the second special
punishment issue. The manifest
deficiencies of Toronto's trial lawyers could have been exploited by
the lawyer who represented
Toronto in his initial state habeas application. But that lawyer conducted
no investigation into Toronto's
childhood, and made no attempt whatsoever to fault trial counsel for
wholly neglecting the most
promising aspects of his defense against the death penalty. Because
of the limitations imposed upon
Toronto's federal habeas lawyer by the AEDPA, Toronto was unable to
persuade the federal courts
to reach the merits of his claim of ineffectiveness of his trial counsel.
As a consequence, no jury or
judge, state or federal, has ever reviewed Toronto's claim that because
of the fact that he was only
seventeen at the time of the offense, and because of the particular
circumstances of his young life, he
does not deserve the ultimate punishment. The judicial system has utterly
failed him. But the Board can
rectify that failure now, as part of its executive prerogative to dispense
mercy whenever it is apparent
that an injustice exists that is not amenable to judicial remedy.
a. Toronto's Own Childhood as Mitigating
Evidence
i. Mitigation at
Trial
To be sure, some mitigation was presented at the punishment phase of
Toronto's trial. Toronto's
mother was only 16 or 17 years old when Toronto was born. (25 RR 4330,
4376) She was abandoned
by Toronto's father before he was born, and he never had a significant
male role model growing up.
(25 RR 4376-4378) His infant sister, to whom Toronto was close, died
of a birth defect when he was
still young. (25 RR 4325-4326, 4379-4380) By the time he got to the
ninth or tenth grade, Toronto was
no longer living with his mother. (25 RR 4324) Instead, he migrated
from household to household, living
at one point with his grandmother, his aunt, his cousins, the mother
of his best friend, and the parents of
his girlfriend, Foria Rider. (25 RR 4323, 4327-4328, 4336) Although
he sold crack cocaine for his
cousin Vernon in the Prince Hall Chambers apartments, he never used
drugs himself, nor did he drink.
(25 RR 4336-4337) He was respectful of his elders, and abided by the
rules of whatever household he
was living in. (25 RR 4330, 4358-4359) He managed to make above-average
grades in school before
he dropped out of the tenth grade. (25 RR 4325) He was generally peaceable,
and once, when he was
16, he refused to fight his cousin Vernon, whom he was much bigger
than, even though Vernon
persisted in punching him in the face. (25 RR 4330, 4359, 4360-4365,
4370, 4388-4389) Nor was
Toronto a threat while incarcerated, causing no infractions while awaiting
trial in the county jail. (25
RR 4393)
Toronto's trial lawyers made no attempt to use this evidence, such as
it is, to persuade the jury that an
affirmative answer to the mitigation special issue was appropriate.
Instead, the entirety of counsels'
brief final argument to the jury was focused on the first special issue,
concerning future dangerousness.
(25 RR 4414-4422, 4431-4444) The only reference they made to Toronto's
age was to argue briefly,
with reference to the future dangerousness issue, that he would surely
grow out of his violent
tendencies. (25 RR 4439-4440) But no expert testimony was offered to
back this assertion up. Thus,
they effectively abandoned the most promising use that could have been
made of the limited mitigating
evidence they did produce. Moreover, they wholly failed to explore
expert testimony to explain both
the lesser culpability of juvenile offenders in general, and the exacerbating
circumstances of Toronto's
own childhood on his already-immature mind.
ii. Toronto's Story:
The Mitigation that
Could Have Been
Had Toronto's trial counsel delved further and conducted a more comprehensive
examination of his
background and social history, however, they could have presented a
far more detailed and humanizing
picture of Toronto than that which the jury saw. Although he testified
at the guilt phase of his trial,
Toronto was not encouraged by his trial counsel to testify again at
the punishment phase. Had he done
so, Toronto could have given graphic testimony about the deprivations
and abuse he suffered as a child,
leading him ineluctably to a life of transience and drug dealing. See
Exhibit I, Affidavit of Toronto
Patterson. Moreover, his story could have been supplemented and corroborated
by family and friends.
See Exhibit J, Affidavits of Patricia Patterson, Mary Patterson, Deidra
Patterson, Michael Patterson,
Jerry Patterson, Floria Rider, and Calvin Walker, respectively. But
Toronto's trial counsel questioned
none of these witnesses extensively about the circumstances of his
childhood, and so could not have
been prepared to present it to the jury. Finally, Toronto's trial counsel
could have sought expert
testimony to help the jury comprehend the mitigating significance of
Toronto's story, see Exhibit K,
Affidavit of Psychologist Dr. Paula Lundberg-Love, effectively countering
the impression the State
made with the jury that Toronto was nothing but drug dealer and a willful
incorrigible.
Toronto was raised by his mother, Patricia Patterson, with the support
of her mother, Mary Patterson.
Clearly his mother meant well for him, having bought him a miniature
library when he was only three
years old. (Patricia Patterson) And indeed, Toronto proved to be a
promising student when he was in
grade school. But his home life was erratic, and his mother changed
jobs often and evidently had
trouble maintaining employment. (Patricia Patterson) Having been raised
herself by a single mother,
and punished inappropriately herself as a child, Patricia continued
this legacy with Toronto. (Patricia
Patterson, Mary Patterson) She was a very young, single mother, easily
upset and short tempered, who
would sometimes take out her frustrations on Toronto in the form of
whipping him too hard. (Patricia
Patterson, Mary Patterson, Michael Patterson, Calvin Walker) She rarely
if ever showed Toronto any
love or affection. (Mary Patterson, Deidra Patterson) Although a good
student, Toronto occasionally
acted out in school, and on those occasions when his misbehavior was
reported to Patricia, Ashe would
beat me, I'm talking about with extension cords, sticks, or whatever
she could get her hands on.@
(Patricia Patterson) On one particular occasion when Toronto and some
friends accidentally set fire to
an abandoned house, Patricia Awent into her room and got a stick that
was as long as a yardstick and
as thick as a club, and began to beat me with it. I think she broke
my ankle, and I had knots all over my
body afterwards. * * * That big stick she had used to whoop me with,
I got rid of that the first chance I
got.@ When Toronto's uncles warned Patricia about such a beating, she
told Toronto that Ajust
because I ran to my uncles and told them about it wasn't going to keep
her off my ass, since I was her
child and she would do what she wanted with me.@
Drug and alcohol abuse were pervasive in Toronto's world while he was
growing up. Patricia and at
least one of her brothers would drink beer and smoke marijuana in Toronto's
presence. (Patricia
Patterson, Deidra Patterson, Michael Patterson, Floria Rider) AIt was
not uncommon for him to see
people using drugs. This was an accepted way of life where he lived.@
(Michael Patterson, Jerry
Patterson,) The neighborhood in which Toronto largely grew up was rife
with gang violence and drug
abuse. (Foria Rider, Calvin Walker) Toronto:
spent a lot of
his childhood staying in a neighborhood we refer to as
ADixon.@ Dixon
was a place where the people who stayed there were
constantly exposed
to drug use; people would smoke weed and crack on
the streets.
Drug sales took place in front of you. There was gambling,
fights, and
partying everywhere you turned in this neighborhood. Many of
the homes in
Dixon were run by single mothers. There were few good male
role models
for the boys growing up there. * * * In fact, I cannot think of
any boy who
grew up in Dixon who did not get involved in drugs or a gang
lifestyle.
(Foria Rider) Nevertheless, although it was unavoidable that Toronto
would come into contact and
befriend gang members during his short life, he never used drugs or
alcohol or became a gang-banger
himself. (Floria Rider, Calvin Walker)
When Toronto was about nine years old, Patricia got pregnant with her
second child. (Patricia
Patterson) During the pregnancy she continued to drink and use drugs,
and when Kenisha was born,
she was premature and suffered a serious birth defect. (Patricia Patterson)
Though just a child himself,
Toronto was often left to care for Kenisha on his own because Aall
my mother wanted to do was run
the streets all the time.@ (Patricia Patterson, Mary Patterson) Toronto's
family would often find
Toronto caring for Kenisha while Patricia was gone. (Michael Patterson,
Jerry Patterson, Calvin
Walker) It was as if Kenisha were his own child. (Deidra Patterson,
Jerry Patterson) Whenever he
was not in school, it was Toronto who fed and diapered Kenisha, and
cared for her medical problems.
(Mary Patterson, Michael Patterson) Fortunately, Toronto loved his
sister deeply, and for the most part
did not mind her being left in his care.
Kenisha lived to be almost two years old, far longer than the doctors
had predicted. On the night before
she died, Kenisha was sleeping with Toronto as she usually did. As
Toronto recounts:
That night was
unusual because the whole time she was in bed with me she
just cried and
cried. In between her cries I heard her call Momma,
Momma, Momma.
This was unusual also, so I got up to go wake my
mother up. My
mother got mad and cursed me out, telling me to give
Kenisha her
bottle, etc. I did so, but Kenisha still wouldn't be quiet and go
to sleep. So
I got my sister and took her into the room with my mother . . .,
and laid her
down in the bed. My mother was pissed because I brought my
sister in there.
She knew I had to go to school the next morning, but acted
like she didn't
care. I got up the next morning and went to school, not
knowing that
the night before would be the last time I would see my sister
alive. I knew
my mother was planning to take Kenisha to the hospital, and I
just knew she
was going to be alright. But after I made it to school I all of a
sudden started
not to feel well. A teacher asked me what was wrong. I told
her my mother
was taking my sister to the hospital, and she asked me if I
wanted to go
home, or at least call home to check on the situation. I did, but
no one was home.
Later I called again, and that is when I learned my sister
had passed away.
I just started to cry when my mother told me what had
happened. The
teacher got the phone and hung it up, and from that point on
I don=t remember
how I got home, or anything else until the day of the
funeral. I could
not cry at the funeral, even though I was hurting very badly
and had loved
my sister to the fullest. I didn't realize I wasn=' crying until
my cousin Cedric
Patterson said he must have loved my sister more than
me because he
was crying and I wasn't. All I know is that I was hurting
severely.
Toronto's family and friends confirm that Kenisha's death was an extremely
traumatic event in his
young life, and there was nobody available to him to help him cope
with his grief. (Deidra Patterson,
Floria Rider)
During the whole time he grew up, Toronto bounced from one school to
another because his mother
moved him so often. Still, he managed to perform well in school for
the most part, making grades that
were sufficient to place him on the honor roll. (Patricia Patterson)
Toronto craved recognition from his
mother for his scholastic achievements, but though she would promise
to reward him for making good
grades, she never did. (Deidra Patterson) Indeed, she never acknowledged
his good grades at all, and
only threatened to beat him if his grades were not good. Patricia would
not buy him new school clothes,
and Toronto felt Aseparated@ from the other students. At the end of
his eighth grade year, Toronto
got his first summer job at the Science Place in Fair Park, and Patricia
told him he could use his
earnings to buy new clothes for the coming school year. (Patricia Patterson)
But Patricia borrowed the
money from Toronto, and never paid it back. When Toronto quit lending
her the money, Patricia:
got mad and started
trying to get me to pay little bills around the house.
Now, all these
years she had managed to pay her bills and buy marijuana
without any
help from me, and now that I'm making a little money she
wants to take
it. My grandma wouldn't let her do it. This was at the root of
the problem
between my mother and me. She didn't only hate me, it seems
she hated my
grandma for taking up for me and what she was doing for
me.
Toronto's estrangement from his mother is echoed by members of his extended
family, and by friends.
(Mary Patterson, Deidra Patterson, Michael Patterson, Floria Rider,
Calvin Walker)
By the time Toronto started high school in 1992, Patricia had a new
boyfriend named Calvin Walker,
and had gotten pregnant again. Patricia continued using alcohol and
marijuana through this pregnancy,
and threatened to beat Toronto when he tried to warn her of their ill
effects on the fetus. Patricia and
Calvin often fought, and Toronto sometimes tried to intervene to protect
his mother. (Patricia
Patterson, Floria Rider, Calvin Walker) Other times when she was mad
at Calvin, Patricia would take
it out on Toronto. It became clear to Toronto that Patricia did not
want him around:
When she would
cook a meal, it would only be for Calvin, and I was told
not to touch
it. I had to eat at friends' houses when I wasn't at school, or
go out and cut
grass to make money to buy something to eat. My mother
didn't know
where I was getting money from, and told me that I better not
be stealing
from her purse or out there selling dope, which I wasn't doing. I
made an arrangement
with my mother that as long as I did not eat at her
house, I wouldn't
have to wash dishes. This arrangement worked fine until
the dishes started
to build up in the sink from her cooking only for Calvin
and him cooking
for himself. At that point she demanded that I wash the
dishes despite
our arrangement, and I refused. So now my mother got
highly pissed
off at me and tried to hit me but I dodged her. Then she
threatened to
put Calvin on me when he got home. After my mother told
Calvin about
our incident, he then came in my room and tried to whoop me.
Calvin slung
me around the room swinging the belt, but I wouldn=t cry or
holler, just
kept my balance and kept moving. Calvin then got very upset
because he couldn't
do anything with me, and left. But before he left out
the front door
he told my mother, AYou better get this damn boy before I
hurt him.@
After this incident Patricia expelled Toronto from the house.
Since Patricia also forbade Toronto to go live with his grandmother,
he contacted his Aunt Helen in
Oak Cliff, and was allowed to live with her and her family as long
as he abided by her rules and stayed
in school. He made good grades that year, and earned an allowance from
Helen for helping out around
the house. On weekends he stayed with his grandmother. On January 3,
1993, Toronto=s little brother,
Calvin, was born. But Toronto did not find out about the birth until
the next weekend, and Patricia
would not let Toronto see his new brother very often. Toronto continued
to alternate living with his aunt
and his grandmother through the summer of 1993.
Shortly before school started up again in the fall of 1993, Toronto:
had no money
or job, and didn't know what to do about school clothes. My
cousin, Vernon
Stiff, had just gotten out of prison in May of 1993, and I
knew he was
dealing dope. He knew I had lost my summer job, and he
knew I lacked
money to buy school clothes. He would tell me that this was
the year for
gaining popularity in school. He would flash his money, clothes,
and jewelry
around me to an extent, where it would leave a person wishing
they had those
things too. It seemed to me that Vernon was, but then again
wasn't trying
to influence me to sell dope for him. As the summer
continued to
wind down, it came to me that my last resort to make some
money for school
clothes was to sell some dope. Soon I was moving the
dope damn good
for my cousin, and with the money I made I would go buy
me school clothes,
shoes, and supplies. When my mother and grandma
found out, they
got on my butt and told me to quit. My mother tried to make
me come home,
but my grandma let me stay with her, and I told her I
would quit selling
dope when I had bought school clothes. I had several
uncles also
either selling dope or smoking, and some told me they would
look after me
and others said to be careful. My grandma told me not to
bring any of
that stuff in her house. I just wanted to be able to make money
without having
to rob anybody or steal.
Toronto's family believed that it was a positive thing that he looked
up to Vernon, because of
Vernon's past military service. (Deidra Patterson) Because his mother
was not providing him even the
basic necessities, Toronto began to sell drugs in order to support
himself. (Jerry Patterson)
When his grandmother's lease ran out, Toronto moved into the home of
Phyllis Fullwood, the mother
of a friend. AMrs. Phyllis,@ as Toronto called her, was aware he had
begun to sell drugs for Vernon,
but allowed him to stay with her on the condition that he quit as soon
as he started school, or within two
weeks thereafter. Although Patricia told Toronto she did not want him
selling drugs, she soon began to
ask him for money. (Floria Rider) She even began to threaten to call
the police if he had none to give
her. Vernon began to pay Patricia to get her to stop hassling Toronto,
and after that AVernon just
continued to put dope in my hand, and I was influenced to continue
to sell even more, because all I
could see now was more money, more money.@ Although she lectured Toronto
against his drug
dealing, his grandmother nevertheless accepted money from him, knowing
how he had earned it. (Mary
Patterson, Floria Rider) When Mrs. Phyllis discovered that Toronto
had continued selling drugs past
her two week deadline, she asked Toronto to move out of her house.
So, at the age of fifteen, Toronto moved in with his cousin Vernon.
Soon Vernon began to complain
that Toronto was not making enough money selling drugs because he kept
going to school. Toronto
began to stay out late at night peddling drugs, and to fall asleep
in class. Eventually he simply quit
attending school for the most part. Although never a gang member himself,
Toronto began to gain the
respect of the Dixon neighborhood as a dope dealer. When Toronto had
a falling out with Vernon, he
moved back in with Mrs. Phyllis and began attending school again. But
by the summer of 1994, he was
selling dope again, and Mrs. Phyllis kicked him out a second time.
He began to live variously with his
grandmother and Mrs. Phyllis. By the end of 1994 Toronto was staying
with the family of his girlfriend,
Floria Rider. (Foria Rider) He lived there for about seven and a half
months, and would remark how
nice it felt to live in a Anormal@ two-parent family for a change.
(Floria Rider)
Everyone who knows Toronto well can attest to his love for, and nurturing
attitude toward, small
children. As a child himself, he enjoyed playing with his younger cousins.
(Deidra Patterson) He helped
his mother take care of Kimberly's children when she would run off
and leave them for days at a
time, and was as good with them as he had been with Kenisha. (Patricia
Patterson) When living with
Floria Rider's family, he spent a lot of time playing with and caring
for her small nieces and nephew,
feeding, diapering, bathing, and playing with them. (Floria Rider)
He had one of Kenisha's baby shoes
bronzed after she died. (Foria Rider) He often spoke to Floria about
having children of his own,
particularly a little girl whom he could name after Kenisha. (Floria
Rider) Toronto's family and friends
continue to find it incredible that it could have been within Toronto's
character ever to have killed Ollie
and Jennifer. (Patricia Patterson, Floria Rider)
iii. Expert Gloss on
Toronto's
Childhood
Several weeks before trial, Toronto was examined by a psychiatrist,
Dr. Lisa Clayton, for the purpose
of determining his competency to stand trial and his sanity at the
time of the capital offense. There is
no indication from an examination of trial counsel's files, however,
that Dr. Clayton was ever asked to
evaluate Toronto with an eye toward testifying as a mitigation witness.
Nor was Dr. Clayton supplied
with any detailed information about Toronto's abused and neglectful
background, that information
apparently being regarded as irrelevant to a determination of incompetency
or insanity.
Had Toronto's trial counsel done an adequate job of investigating Toronto's
background, and supplied
that information to an appropriately trained psychologist, they could
have presented expert testimony at
the punishment phase of his trial of the mitigating significance of
Toronto's difficult and disadvantaged
childhood. See Exhibit K, supra. Dr. Paula Lundberg-Love, a forensic
psychologist and psychology
professor who specializes, inter alia, in issues of family violence
and drug abuse, has reviewed the
information summarized above. From her professional perspective, she
(or some other comparably
trained and experienced expert) could have explained to Toronto's jury
just how neglectful and
abusive his childhood really was, and how that childhood inevitably
shaped Toronto's character. She
could also have explained how remarkable it was that many positive
aspects of Toronto's innate
personality persevered despite the profound neglect and abuse he suffered.
She could explain how
Toronto=s mother neglected not only his medical needs, but she also
failed the basic parental duties of
supervision and care-taking, not only for Toronto, but for his baby
sister as well. Toronto's mother
abused him emotionally as well, depriving him of affection and even
a stable home environment, all of
which Acontributed to his long-standing sense of alienation and a starvation
for love, affection and
attention.@ Dr. Lundberg-Love could have explained to the jury just
how traumatic and life-altering
the death of Toronto's sister was to him. Indeed, in her opinion Toronto
should have been interviewed
and tested with a viewed toward determining whether this experience
may have triggered the onset of
Post-Traumatic Stress Disorder. Dr. Lundberg-Love could further have
explained how Toronto
managed to transcend the abuse and neglect for a remarkably long time
without dropping out of school
and degenerating into the lifestyle of violence and drug abuse that
surrounded him. Still, he was
ultimately forced from his mother's home, Adue to a need to escape
the neglect and conflict and
violence between his mother and her boyfriend . . . as opposed to a
volitional act of rebellion.@ It is
Anot particularly surprising[,]@ according to Dr. Lundberg-Love, that
Toronto Aeventually ended up
selling drugs, in order to support his basic survival needs[.]@ Nor
was it surprising that Toronto, Awho
initially felt compelled to deal drugs, and was then given mixed messages
regarding this behavior from
his family members, continued to support himself in this manner, particularly
after he started obtaining
the respect of his community.@ If anything, it is surprising he did
not succumb to the lifestyle of the
street much earlier.
b. Toronto's Juvenile Status as a
Mitigating Fact in Itself
Even putting aside for the moment the evidence that could have been
presented to flesh out Toronto's
own troubled childhood, his trial counsel made no effort whatsoever
to use the fact of his status as a
juvenile as a mitigating factor in and of itself. One of the reasons
the Supreme Court gave in its 1989
opinion holding imposition of the death sentence against a seventeen
year old not to violate the Eighth
Amendment per se was its trust in juries to take that fact into account
in determining the
appropriateness of such an extreme penalty in the individual case,
as part of the total package
presented in mitigation. See Stanford v. Kentucky, supra, at 374-377
(plurality opinion). Such trust
necessarily assumes a defense team that will be alert to the mitigating
potential of juvenile status as a
reason in and of itself to impose a lesser sentence than would apply
to a comparable adult offender.
But here, Toronto's own lawyers treated him as an adult offender, employing
a mental health expert
only to determine such non-juvenile-specific issues as his competency
to stand trial and his sanity at the
time of the offense. They made no effort to educate the jury about
the factors that typically make the
juvenile offender less culpable than adult offenders even for the most
heinous crimes.
An expert could have Ateased out@ the facts for a jury that demonstrate
the differences in the brains
of juveniles and adults that render the latter generally less culpable.
She could have told the jury that
even a seventeen year old's brain is less mature than an adult's, and
in just those areas of the brain,
such as the prefrontal lobes, that are most important to Aexecutive
functioning,@ including planning,
judgment, problem-solving, controlling impulsiveness, and foreseeing
the consequences of one's own
behavior. Seventeen year olds are not only less mature physically,
but also in their identity development,
moral frame of reference and moral judgment, assessment of risk and
future consequences, emotional
functioning (e.g., understanding emotions and sense of remorse and
responsibility to others), and in
their abilities to control impulses and regulate behavior. Moreover,
because a seventeen year old's
brain is still developing, he may be more susceptible to rehabilitation
than the adult offender. Armed
with such expert testimony, Toronto's lawyers could have argued to
the jury that the goals typically
ascribed to the death penalty simply would not be met by sentencing
him to death. Because he is less
culpable than a comparable adult offender, they could have argued,
executing him would serve no
substantial retributive purpose. And because of his limited ability
to assess risk and perceive the future
consequences of his behavior, the death penalty did not act as a deterrent
in the same way that it
would for an adult offender. Indeed, because expert testimony would
have shown the jury that
Toronto's immature brain made him more amenable to rehabilitation,
they could even have enhanced
the only age-related argument they did make at trial, that he would
not pose a significant future threat
to society.
Thus, it could be argued with expert assistance that a seventeen year
old offender is no more deserving
of the death penalty than is a mentally retarded offender. Moreover,
unlike the fact of mental
retardation, which can be disputed, Toronto's status as a seventeen
year old offender is a static fact,
not subject to contradiction or change. There is no conceivable reason
that Toronto's trial lawyers
should not have developed its full mitigating potential. Indeed, the
failure to do so undermines the
legitimacy of the only rationale still supporting the imposition of
the death penalty for juvenile offenders,
namely, that evidence of a juvenile's relative lack of culpability
as a class can be presented to the jury
on an individualized basis, and the jury can then make the best judgment,
in combination with any other
mitigating facts, whether he is one of those juvenile offenders who
are among the Aworst of the
worst@ killers deserving of the death penalty. Toronto's jury sentenced
him to death without ever
having made that individualized judgment.
Moreover, an expert could have explained that the circumstances of Toronto's
chaotic childhood might
also have stunted his brain development, rendering him even less culpable
than a normally undeveloped
seventeen year old. As a renowned expert in child and adolescent psychiatry,
Dr. Bruce D Perry,
M.D., Ph.D., has explained:
AA child raised
in a chaotic and threatening environment B one
impoverished
of emotional, social and cognitive experiences B will grow up
at a different
rate and in different ways from a child in a safe, nurturing,
predictable
and enriched environment. As these children grow up, they age.
But they do
not mature at the same rate or in the same ways as children
from healthy
environments. They can be seventeen chronologically, but
have the emotional
and social maturity and functioning of a five-year-old. A
five-year-old
in a seventeen year old body will show a capacity for
judgment, impulse
control, insight and social functioning expected for a
pre-school child.
This child suffers from, in some senses, a form of
emotional and
social retardation.@
See Exhibit L, Statement by Bruce D. Perry, M.D., Ph.D. That Toronto's
trial lawyers failed to
develop any in-depth evidence of his chaotic upbringing at his trial
meant that they were unequipped to
make this argument to the jury as well.
But assume for a moment that Toronto's trial counsel made a deliberate
decision to forego expert
testimony showing the relative lack of culpability of the class of
juvenile offenders, and of Toronto in
particular, for whatever reason. Such a Astrategic@ decision would
have been an intolerable gamble,
and it is hard to imagine any possible advantage. Even so, appellate
courts are wont to defer to such
Astrategic@ decisions on the part of trial counsel in gauging claims
of ineffective assistance of
counsel. But the Board of Pardons and Paroles owes no such deference
to Toronto's trial counsel,
and there is nothing to preclude the Board from now taking Toronto's
juvenile status, and the
particular circumstances of his tumultuous childhood, into consideration
in reaching its executive
decision with respect to clemency. Executive mercy would be particularly
apt in Toronto's case,
where trial counsel's failure prevented the jury, and hence the judiciary,
from making the individualized
assessment of the extent of Toronto's culpability in light of all,
and maybe even the best, mitigating
evidence. The Board but serves its legitimate executive function by
recommending a commutation to a
life sentence under circumstances such as these.
c. The Failure of the Judiciary to Remedy
the Deficiency
At this juncture, the Board may ask: Why haven't the courts remedied
this obvious deficiency? After
all, claims of ineffective assistance of trial counsel under the Sixth
Amendment may be resolved by
way of state and federal habeas corpus proceedings. Unfortunately,
the deficiencies of representation
did not end with Toronto's trial counsel. Because of the omissions
of Toronto's initial state habeas
counsel, Toronto's claims of ineffective trial counsel were never considered
in habeas corpus
proceedings, either in state or federal court.
i. Initial State
Habeas Counsel
On April 16, 1996, the Texas Court of Criminal Appeals appointed Texarkana
lawyer Barry Bryant to
represent Toronto in his initial post-conviction application for writ
of habeas corpus. Bryant was among
the hundreds of criminal defense attorneys state-wide who were essentially
conscripted to represent
the more than two hundred death row inmates entitled to appointed representation
under Article 11.071
of the Code of Criminal Procedure, enacted in 1995. Many of these attorneys
lacked any significant
experience with either capital jurisprudence and/or the complex body
of law surrounding state and
federal procedure in habeas corpus. Mr. Bryant himself had never before
prepared a post-conviction
writ application in a capital murder case. See, Exhibit E supra.
It showed. The initial state writ application filed by Barry Bryant
raised nothing but a handful of
record-based claims. See Exhibit F, supra. The writ application was
six pages in length, and cited
practically no law. When Bryant sent undersigned counsel his Afile@
in the case, it consisted of a copy of the appellate record, copies of
press clippings about the offense, some case law, and little else.
Indeed, in the initial state application Bryant filed on Toronto's
behalf, he prayed the convicting court
Afurther order production of all materials held by either Applicants
[sic] trial counsel or counsel for the
State prior to@ the evidentiary hearing he so futilely requested. But
no investigation into grounds for a
state post-conviction writ application in a capital case can be regarded
as properly begun, much less
completed, without the most rudimentary step of reviewing trial counsel's
files and, where available,
the State's files as well, before the writ application is filed in
the convicting court! Any experienced
capital habeas attorney knows to do this, but Bryant did not do so.
Bryant ultimately billed the Court of Criminal Appeals $12,151.44 for
his services. Approximately
two-thirds of those services consisted of simply reading the appellate
record of Toronto's trial, and
conducting preliminary research into purely record-bases claims. In
other words, Bryant's approach to
Toronto's habeas corpus application was to treat it very much like
a second direct appeal! He never
sought out the files of Toronto's trial lawyers for review, neither
did he attempt to interview those
lawyers. Nor did he attempt to review the prosecutor's files in the
case. These are all the most
obvious starting points in any investigation of non-record facts to
form the basis of a proper habeas
corpus application. After obtaining an extension of time to file the
state writ application, and with barely
a month left before the application was required to be filed under
that extension, Bryant for the first
and only time traveled to the penitentiary to interview his client
about the case. He took an investigator,
Mr. Randy Coburn, with him for that interview, which lasted between
two and three hours. Mr.
Coburn subsequently billed Mr. Byrant a total of $900 for services
he performed in the case, which
included ten hours driving to the penitentiary, two hours interviewing
Toronto, and apparently two hours
typing up notes of that interview. It is unclear how Coburn spent the
remainder of his investigative time
on the case, since his investigative reports have been misplaced. Both
Bryant and Coburn appear to
have spent some minimal amount of time in communication with members
of Toronto=s family, but
whatever else they may have been looking for in the way of non-record
based claims, they did not
investigate Avery thoroughly, if at all, whether mitigating evidence
existed which might have been, but
was not, developed at the punishment phase@ of Toronto's trial. Bryant
spent the remainder of his
attorney's ti