Death row inmate Jesse Joe Hernandez, set to be executed next week for the 2001
death of a 10-month-old boy in Dallas, is hoping that a ruling Tuesday from the
U.S. Supreme Court could give him another chance to prove that the tragedy was
not entirely his fault.
The nation’s highest court ruled that the failure of initial state habeas
lawyers to argue that their client’s trial counsel was ineffective should not
prevent the defendant from making that argument later on. Lawyers across the
country, including those for at least 2 Texas death row inmates, were eagerly
awaiting the court’s ruling in the Martinez v. Ryan case out of Arizona, which
could expand appeals access for inmates.
“A procedural default will not bar a federal habeas court from hearing those
claims if, in the initial-review collateral proceeding, there was no counsel or
counsel in the proceeding was ineffective,” the court majority held.
Habeas lawyers investigate issues that could or should have been raised during
a defendant’s original trial.
Brad Levenson, director of the Texas Office of Capital Writs, filed a petition
with the Texas Court of Criminal Appeals on Tuesday afternoon on behalf of
Hernandez, arguing that his March 28 execution should be stayed, in part,
because of the court’s ruling.
Although the ruling applies to federal courts, Levenson said, Texas’ highest
criminal court should take its cue from the nation’s highest court and hear
Hernandez was convicted in 2002 for the death of a child who lived in the home
where he lived at the time. Hernandez admitted he hit the child, who was rushed
to the hospital, where he was put into a medically induced coma and then died
after he was removed from life support.
In a writ filed Tuesday with the Texas Court of Criminal Appeals, Hernandez
argues that his actions did not directly cause the child’s death. Instead, an
expert who recently reviewed the medical records concluded that the hospital
gave the child a lethal dose of the drug pentobarbital and that he was pulled
from life support too soon.
“There’s no way to tell at end of day whether he would have survived,” Levenson
said. “Our expert said there’s a very real probability the child could have
Levenson said Hernandez’s trial lawyers and his initial appeals lawyers were
ineffective because they failed to do further investigation and hire their own
experts to find out why the child died. Levenson, who took the case only three
weeks ago, hired a doctor who reviewed the medical records and determined that
the little boy had not been diagnosed as brain-dead before he was removed from
life support and that he was given toxic doses of pentobarbital.
“It’s not to say that Mr. Hernandez is not guilty of a crime, but he’s not
guilty of capital murder,” Levenson said.
Current law, though, could prohibit Hernandez from arguing that because his
original trial lawyers were ineffective by not further investigating the cause
of death that he should get a new trial. Those kinds of claims must be raised
from the beginning of the appeals process to be valid later on. And Hernandez’s
previous habeas lawyers did not argue that he was inadequately represented.
Levenson said that even though Tuesday’s Supreme Court ruling applies to claims
made in federal court — not state writs like the one he filed — the same
principle ought to apply.
“We’re saying the state courts should also take a look at these claims for the
same reason the Supreme Court would take a look at them,” he said.
The ruling could also be a boon for death row inmate Rob Will, who was
convicted in 2002 of fatally shooting a Harris County sheriff’s deputy. Will
says that the man he was with that night was the real shooter and that he is
In January, U.S. District Court Judge Keith Ellison denied Will’s pleas for a
new trial but wrote that he lamented doing so because of “disturbing
uncertainties” raised about his guilt.
Will is hoping the court’s ruling in Martinez will allow him to argue that he
should get a new trial because both his trial lawyer and his state-appointed
habeas lawyer were ineffective when they failed to track down several witnesses
who have testified that the other man confessed to the killing.
(source: Texas Tribune)