IN THE COURT OF CRIMINAL APPEALS OF TEXAS IN AUSTIN, TEXAS

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1 IN THE COURT OF CRIMINAL APPEALS OF TEXAS IN AUSTIN, TEXAS ) ) Ex Parte DAVID LEE POWELL, ) ) TRIAL CAUSE NO. ) ) Applicant. ) COURT OF CRIMINAL ) APPEALS ) NO. 71,399 ) NO. WR 7, ) ) MOTION FOR RECONSIDERATION ON THE COURT S OWN MOTION DUE TO PROSECUTORIAL MISCONDUCT David Lee Powell, by counsel, respectfully requests that the Court reconsider on its own motion its order dismissing his Subsequent Application for Post-Conviction Writ of Habeas Corpus, entered June 14, In support of this request, Mr. Powell set forth the following: 1. Before the subsequent application was transmitted to this Court on June 9, 2010, Mr. Powell asked the trial court to withdraw or modify his execution date. The District Attorney of Travis County filed the State s Response Opposing Motion to Modify Execution Date. In that response, the District Attorney drew the court s attention to a litany of acts and characteristics of Mr. Powell that would be considered relevant to the issue of future dangerousness under any conceptualization of that term. These are detailed on page 3 of the June 4, 2010, District Attorney s letter to the Texas Board of Pardons and Paroles, attached hereto as Exhibit A. Id. at 1-2. In the letter to the Board, at the page referenced by the State s Response, the District Attorney noted several incidents that she believed ran counter to Mr. Powell s claim that his

2 behavior in prison had conclusively refuted the prediction that he would continue to be dangerous. The most significant, and clearly most inflammatory incident, was recounted as follows: Laura Popps an attorney with the Capital Litigation Division of the Attorney General s Office testified that in 1996 she received a call from a person named Jonathan Shrag. She documented what he said in the phone call in a set of written notes. Popps testified that Shrag, an independent researcher, called her to tell her that in an interview with Powell, Powell told Shrag that the best thing he could do when he got out of prison was to assassinate the justices of the United States Supreme Court. Shrag had been to visit Powell in prison in 1993 and explained that Powell was upset about the Hererra decision and that was the context in which those statements came up. Powell further told Shrag that he had a good insanity claim that should have gotten him off in his first trial. Shrag, who officed at the time at the Texas Campaign Against the Death Penalty, claimed that he could not remember the conversation with Popps, but would not deny that it occurred. In fact he acknowledges he may have said it. Id., Exhibit A, at 3-4 (emphasis in original). 2. This pleading, with the attached letter to the Board of Pardons and Paroles, was transmitted to this Court on June 9, 2010, along with the subsequent habeas application, the motion to withdraw the execution date, and a letter response undersigned counsel had quickly filed after the District Attorney filed her opposition pleading. See Order of June 9, 2010, 167 th District Court of Travis County (transmitting the record to this Court). 3. The letter response that undersigned counsel filed within an hour of the District Attorney s filing of her pleading opposing the motion to withdraw the execution date was made th without reference to the trial record due to the shortness of time allowed by the 167 District Court for a response. Thus, the letter response did not argue to the trial court what undersigned counsel now argues to this Court in this pleading. With respect to Mr. Powell s alleged assassination threat, the letter simply tried to downplay the comments as angry rhetoric. 2

3 4. Late in the afternoon on June 13, 2010, while working on a Petition for Writ of Certiorari for the United States Supreme Court in anticipation of this Court s dismissal of Mr. Powell s subsequent habeas application, undersigned counsel had occasion to review the trial record with respect to the allegation that Mr. Powell had threatened to assassinate Supreme Court Justices. What counsel found was shocking and deeply troubling. (a) First, counsel found that the alleged testimony was only given in voir dire, outside the presence of the jury, and was not allowed to be given to the jury. See Exhibit, attached hereto (the transcript of testimony by Laura Popps and Jonathan Shrag). (b) Second, counsel found that Jonathan Shrag, after having difficulty remembering the incident in which an inmate made the assassination threat and his conversation with Ms. Popps, testified unambiguously as follows: A. I cannot testify that David Powell made that statement to me in the Texas department of Corrections in Q. And why is that, why can t you testify to that? A. Because I do not remember the face of I don t remember who I had the conversation with. Q. Oh, somebody down there said this to you, you just can t remember who it was? A. That s accurate. I can remember a conversation vaguely, some aspects of it more clear than others, but I think I visited four or five guys on death four or five guys in that jail and we and I talked about the Herrera case in particular with a number of them. I think it was sort of a big issue at the time. So exactly who said what is at this point in time confusing to me. Trial Transcript, Vol. 38, at At the end of his testimony, Mr. Shrag again testified, in response to the district attorney s characterization of his testimony: 3

4 Id. at 270. A. No, that s not my testimony. I can remember a conversation with a death row inmate on death row who threatened a Supreme Court judge, justice, yes. Q. (By Mr. Smith) You just can t remember who did it now? A. I cannot be certain of who did it, that s correct. (c) Third, in the face of this testimony, the trial court indicated that the testimony would be excluded, but before he could do that, Assistant District Attorney Robert Smith said, I don t want this in front of the jury. I wouldn t sponsor this, Judge. Id. at In light of the actual trial record, the District Attorney s characterization of this testimony in her letter to the Board of Pardons and Paroles is false in at least three respects. First, it was not testimony at all, in the sense that it was admitted into evidence. Second, it does not acknowledge in any respect that there was grave doubt about whether Mr. Powell, rather than one of three or four other death row inmates, actually made the assassination threat. Third, it does not acknowledge that the District Attorney s own assistant refused to continue sponsor[ing] this testimony because of the uncertainty about whether Mr. Powell made the threat. 6. The only conclusion to be drawn from this matter is that the District Attorney was trying to refute in the most inflammatory way possible the legion of evidence that Mr. Powell has not posed a risk of danger for more than three decades. The District Attorney had to know that this representation of the trial record was false and that it would have a devastating effect on the claim that Mr. Powell was not only not dangerous but that he did not have the character to pose a risk of dangerousness. 4

5 7. Mr. Powell cannot know whether this Court s order of dismissal of June 14, 2010 was influenced by this gross and grossly prejudicial mis-representation of fact. What he does know is that (a) the letter to the Board of Pardons and Paroles was transmitted to the Court from th the 167 District Court, (b) the District Attorney s pleading to which this letter was attached drew attention to this portion of the letter to the Board, (c) this Court simply noted that it was dismissing Mr. Powell s subsequent habeas application because of its failure to satisfy the requirements of Article , 5 of the Code of Criminal Procedure. What Mr. Powell also knows is that in reaching such a determination, this Court has said repeatedly that it considers the merits of the claim presented in a subsequent habeas application as well as the procedural requirements of Section 5. See Ex parte Campbell, 226 S.W.3d 418, 421 (Tex.Crim.App. 2007) (application of Section 5 requires consideration of whether a meritorious federal claim has been alleged) For these reasons, it at least appears that the District Attorney s false and inflammatory representation of the trial record could have influenced this Court s decision to dismiss Mr. Powell s subsequent habeas application. 1 See also Ex parte Brooks, 219 S.W.3d 396, (Tex.Crim.App. 2007) (noting that, in a subsequent application in a non-capital case, a habeas applicant must make a prima facie showing of facts that establish a cognizable constitutional claim along with a prima facie showing of innocence under a provision identical to Section 5(a)(2)); Ex parte Johnson, No. WR- 56,197-02, Unpublished Opinion (Tex.Crim.App. July 20, 2007) (dismissal of application as an abuse of the writ under article (5) for failure to make a prima facie showing that the State withheld any evidence from its files and for failure to show that the newly discovered evidence is either newly available or withheld by the state. ). 5

6 9. The Supreme Court has long taught that the decision to take a person s life must be as reliable as it can be, and that the process by which this is done must be, and appear to be, fair: From the point of view of the defendant, [the decision to impose the death penalty] is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion. Gardner v. Florida, 430 U.S. 349, (1977). The District Attorney s pernicious interjection of a falsehood into the heart of the claim made by Mr. Powell creates the risk that this Court s decision to dismiss Mr. Powell s claim was based on caprice or emotion, rather than reason. Id. The only way to dispel this risk is to reconsider Mr. Powell s case on the Court s own motion. WHEREFORE, Mr. Powell requests that the Court reconsider the dismissal of his subsequent habeas corpus application on its own motion. Respectfully submitted, RICHARD BURR TBA No Union Street Houston, Texas (713) (713) fax Counsel for David Lee Powell 6

7 CERTIFICATE OF SERVICE I certify that the foregoing application, with exhibit attached, was served on the State of th Texas by delivering a copy to Bryan Case, Assistant District Attorney, 509 W. 11 Street, Austin, th Texas 78701, and to Tina Miranda, Assistant Attorney General, 300 W. 15 Street, Suite 800, th Austin, Texas 78701, this 15 day of June, Richard H. Burr 7

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