Texas attorneys brace for new death penalty appeals after Supreme Court ruling

Tomas Gallo smiled and laughed as Harris County jurors decided his fate for the rape and murder of his girlfriend's 3-year-old daughter.

Gallo had covered the girl's body with bruises and bite marks before sexually assaulting and bludgeoning her while her mother was at work just a few days before Christmas in 2001. He then cleaned up the blood-spattered bathroom, dressed the child in clean clothes and called her mother to say the girl was not breathing.

Jurors agreed he should be sentenced to death, despite his lawyers' arguments that he was intellectually disabled.

Now, however, Gallo and at least nine other death row inmates from across Texas - including five others from Harris County - are seeking to have their death sentences thrown out in exchange for life in prison under a ruling earlier this year by the U.S. Supreme Court that changed how Texas determines intellectual disability.

Some, including Gallo, could eventually walk free, since life without parole was not an option in Texas when they were convicted.

"When we think about it, it just tears us up again," said Rosa Flores, the child's paternal grandmother. "I don't feel that this young man has any kind of problem. He might have a low IQ but that doesn't mean he's stupid or dumb. He knows what he's doing."

Their fears are echoed among other families awaiting execution of a capital murderer, said Andy Kahan, victim's advocate for the city of Houston.

"There's a lull where you're waiting on justice, for maybe a decade, and you're riding that roller coaster and all of a sudden that coaster gets taken down because you're right back in court again," Kahan said. "And you have to re-live all the nightmares of what happened to your family."

The U.S. Supreme Court abolished the death penalty in 2002 for people with intellectual disabilities, but left it up to states to set standards for determining disability. A follow-up ruling by the Supreme Court in March in a different Harris County case overturned Texas' method for determining intellectual disability, saying it was out of date and ineffective.

The March ruling left Texas prosecutors and defense attorneys scrambling to review cases, some dating back decades. Harris County has 82 inmates on death row, though it remains unclear how many cases in Houston or across Texas will be affected by the ruling.

Attorneys on both sides are bracing for what could be a wave of appeals, with some putting the number in the dozens.

"They could be looking at a nightmare," said Tom Moran, a Houston criminal defense and appellate attorney who is representing another inmate, Joel Escobedo, in his attempt to get his death penalty overturned.

District Attorney Kim Ogg said her office is keeping a close eye on the legal developments and she is sympathetic to the families of the victims.

"Taking a person's life is the most serious action a government can take against an individual," Ogg said, "and we are making every effort to ensure that offender's Constitutional rights are respected."

Moore and the law

The March ruling came in the case of Bobby Moore, convicted of capital murder in the death of a Houston store clerk in April 1980.

Moore, now 57, shot and killed 73-year-old James McCarble at Birdsall Super Market near Memorial Park, a store he and two accomplices picked because two elderly people were running the customer-service booth and the cashier was pregnant. After shooting McCarble with a shotgun, Moore fled and was arrested 10 days later in Louisiana.

He was sentenced to die by lethal injection.

His attorneys appealed the conviction, arguing that the judge and jury should have considered his intellectual disability as outlined in a landmark 2002 ruling from the U.S. Supreme Court that prohibited execution of the intellectually disabled.

The ruling stemmed from the conviction of Daryl Atkins, a mentally disabled Virginia man who was sentenced to death for the kidnapping, robbery and murder of an air force serviceman in 1996.

The Atkins decision set off waves of appeals by inmates, many of whom had their death sentences changed to life in prison. At least 15 Texas inmates were removed from death row for being mentally disabled in the wake of the decision, according to the Texas Coalition to Abolish the Death Penalty.

To qualify for the Atkins exemption, inmates must have a low IQ, typically under 70, and significant problems adapting to their surroundings that were evident even in childhood. Figuring out how to determine that fell to the Texas Court of Criminal Appeals, which adopted a seven-pronged test to determine intellectual disability in the state.

The test, named after plaintiff Jose Briseno, referenced Lennie, the fictional character from John Steinbeck's novel "Of Mice and Men," as someone most Texans would agree should be exempt from the death penalty.

The "Briseno factors," as they came to be known, consisted of seven questions to help courts decide whether someone shows "adaptive behavior" that suggests they are not intellectually disabled. The questions ranged from whether someone can lie effectively to whether his conduct shows leadership.

In Moore's case, however, Supreme Court Justice Ruth Bader Ginsberg wrote in a 5-3 majority opinion that the Texas courts relied too heavily on IQ scores and non-clinical evaluations by judges. She said the state should have used evaluations by mental health professionals to determine intellectual disability.

Moore's precedent-setting case was sent back to the Texas Court of Criminal Appeals, which has yet to issue a ruling on how the state's courts will determine intellectual disability.

In the meantime, other death row inmates are asking for reconsideration of their sentences.

Joshua Reiss, head of the post-conviction writs division at the Harris County District Attorney's office, has been notified that at least three inmates, including Gallo, are appealing under the March ruling. He said he expects 6 to 10 death row inmates from Harris County to appeal over the next few years. Even though they are being appealed under the same decision, he said each one would be different.

"They're very fact-intensive, they're going to be expert-intensive," he said. "We're going to take each one individually."

Last week, the U.S. Supreme Court sent the San Antonio case of convicted killer Obie Weathers back to the Fifth U.S. Circuit Court of Appeals to be reevaluated under the new law.

Local cases affected

The first Houston case reconsidered under the Moore ruling was Robert James Campbell.

Mental health professionals on both sides agreed that he was mentally disabled. In a plea deal designed to make sure he never leaves prison despite being eligible for parole, he ended up with a life sentence earlier this year.

The new sentence was accepted bitterly by the family of his victim, Alexandra Rendon, a 20-year-old bank teller who was abducted from a gas station, raped and killed.

"To me, it's an extremely borderline case of whether Robert James Campbell is mentally well for execution," Israel Santana, Rendon's cousin, said at the time. "Me and my family, we strongly believe that he is. But in no way do we want to be a part of executing someone who is questionable."

Santana, an attorney, said he and his family have a duty to follow the law.

"As much as it hurts, we accept the State of Texas and the Supreme Court's ruling taking Robert James Campbell off death row," he said with tears in his eyes. "There are laws left and right that we may not agree with, but we have to abide by."

Gallo and two other condemned men, Harlem Lewis and Joseph Jean, have notified the Harris County District Attorney's Office they will also seek to have their death penalty sentences overturned.

Lawyers for Gallo argued during trial that someone else in the family killed the young girl. After he was convicted of capital murder, they argued that he was too mentally disabled to execute.

"It's not an act," said A. Richard Ellis, Gallo's appellate attorney. "Someone can't just rig up an (intellectual disability) claim after the fact and make it fit the law. He had abysmal school performance, was in special education and on and on. This is an ongoing disability."

The prosecutors who put Gallo on death row, who no longer work at the Harris County DA's office, did not return calls and emails. At trial, prosecutors and the jury relied on the Briseno test to determine that Gallo was not disabled.

In a more recent case, Lewis, now 26, landed on death row for gunning down Bellaire Police Officer Jimmie Norman and good Samaritan Terry Taylor after a police chase in 2012.

Lewis testified in his own defense that he was scared after a police chase and shot both men after a struggle to get him out of his car. His attorneys did not raise his intellectual capacity at trial but the issue is allowed in his appeal.

"A lot of us have the idea that if someone's not drooling in the corner, they can't have intellectual disability," said Gretchen Sween, an appellate attorney for Lewis. "Harlem Lewis's case shows that somebody can successfully mask all kinds of things, and it takes an expert to go in and investigate and understand what adaptive deficits mean."

In another case that is being appealed, Joseph Francois Jean, 45, landed on death row in 2011. He broke in to the home of an ex-girlfriend he was stalking and, finding just her teenage daughter and niece having a sleepover, beat the teens to death with a baseball bat on April 11, 2010. He then set the townhouse on fire using gasoline and fled. He was convicted of killing Chelsey Lang, 17, and her cousin, 16-year-old Ashley Johnson.

Those cases could be just the beginning. Attorneys who work on death penalty appeals agree there could be 8 to 12 more Harris County cases in which the new rule applies.

"If there's one case that would be affected by this, I'd be thrilled," said defense attorney Pat McCann. "And I'm pretty sure there's a dozen."

Other cases

Other cases are also working their way through the state and federal courts.

Attorney Moran has filed an appeal in federal court for Escobedo, who was convicted in 1999 of robbing and killing a 65-year-old man for drug money at an East End bus stop. Guadalupe Garcia was pistol-whipped, robbed, then shot.

In his pleadings, Moran cited two other death row inmates whose cases involved claims of intellectual disability: Raymond Martinez and James Henderson.

Martinez's case was closed in August when the 71-year-old died of natural causes after three decades on death row. A diagnosed paranoid schizophrenic with an IQ of 65, he was convicted of a 1983 crime spree that left five people dead. He died with claims still pending that he was mentally disabled.

Henderson, 44, was convicted in 1994 of shooting 85-year-old Martha Lennox while burglarizing her Clarksville home in East Texas. He was convicted in Bowie County.

Sween, an attorney for the state's Office of Capital and Forensic Writs, said the agency is handling at least five cases stemming from the Moore ruling.

"We shouldn't let unscientific biases come into play in this really important question," she said. "We should listen to what the scientists tell us about how you diagnose somebody."

Looking ahead

Death penalty opponents have cheered the Moore decision, saying courts have a tendency to look at a defendant's strengths and rule that they are not mentally disabled, rather than look at the disability.

"Based on Justice Ginsberg's opinion, you have to use the best medical standards available and focus on the disabilities to determine whether someone meets the standard," said McCann, Moore's attorney. "That's a game-changer because the courts have tended to put their thumb on the scale towards any showing of strength or some competency in some field as negating retardation, and that's just not how one determines that."

But critics argue that reducing old capital murder convictions obtained before the state's "life without parole" law was passed in 2005 means killers who have been behind bars for decades are eligible almost immediately for parole.

In most death penalty cases that have been changed to life sentences, defense attorneys work with prosecutors to craft elaborate sentencing arrangements to ensure that the former death row inmate never walks free. The common goal, both sides agree, is making sure killers never get out of prison, even if they get off death row.

But it's still possible.

In Campbell's case, District Attorney Ogg has promised to protest any possible parole. Similar arrangements are likely to materialize as other cases are considered in light of the new ruling.

In Gallo's case, the victim's family remains unconvinced that he is so mentally disabled that he should not be executed.

He has apparently been able to make jailhouse wine and give himself a jailhouse tattoo with a makeshift tattoo gun, said Flores, the child's grandmother.

"I don't think his IQ is all that low because he's got common sense," she said. "If you've got common sense, you've got a lot going for you."