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Joseph Stanley FAULDER
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder:
July 8,
1975
Date
of arrest:
April
1977
Date of birth:
October 19,
1937
Victim profile: Inez Phillips
(female, 75)
Method of murder: Stabbing
with knife
Location: Gregg County, Texas, USA
Status: Executed
by lethal injection in Texas on June 17,
1999
AUSTIN - Texas Attorney General John Cornyn offers
the following information on Joseph Stanley Faulder who is scheduled
to be executed after 6 p.m., Thursday, June 17th.
FACTS OF THE CRIME
On the morning of July 9, 1975, the body of Inez
Phillips, a widow seventy-five years of age, was found on a bed in her
home in Gladewater, Texas, by her maid. A butcher knife was found
thrust six and a half inches into her chest, tape covered her mouth,
and her arms were bound.
The medical examiner testified that the victim had
a number of bruises on the left side of her body and legs, on her face,
on a wrist, and on her fingers. Five small puncture wounds were on her
right shoulder. The stab wound to the chest penetrated through a
cartilaged area of a rib and the heart, almost to the back bone. The
back of the victim's skull had a two inch long depressed fracture,
consistent with a "heavy blow" from a blackjack (a club encased in
leather). Both the stab wound and the skull fracture were sufficient
to cause death. The following events led to the victim's death.
In 1974, the victim had a floor safe installed in a
closet in her home. One of the employees involved in installing the
floor tile which concealed the safe was James Moulton. At Faulder's
trial, Moulton confirmed that he had performed floor work on the
victim's house in 1974, and that he went with Lynda McCann, also known
as Stormy Summers, to a bar on June 27, 1975, where he met Doyle
Hughes and Faulder for the first time. Faulder bragged about being a
safecracker, and Moulton told him about the victim's safe, sketched a
diagram, and told them that only the seventy-five year old woman lived
there.
Moulton drove the four of them to see the victim's
house. Moulton testified that he was not involved in the actual
burglary and murder, that he called a police hotline to give
information on the case, and that Hughes was not involved in the
discussions regarding the offense. Moulton pleaded guilty to
conspiracy to burglarize a house and received a five year sentence,
but the sentence was not part of a plea bargain.
Doyle Hughes testified that he met Faulder in April
or May of 1975, and that Faulder lived with Hughes and Hughes' mother
for about two weeks between that time and July of 1975. Two or three
weeks before the murder, Hughes went with Faulder to a bar, where he
met, for the first time, Moulton and Lynda.
Hughes saw Moulton draw a diagram of the victim's
house and mention that there was supposed to be some money or jewelry
in it. Moulton drove the four of them to the victim's house that night
and described how they could tie up the victim and open the safe.
Although Hughes did not participate in the conversation, Faulder said
he could open the safe, and Lynda said she was behind on her rent. A
week later, Hughes was at Lynda's house with Moulton, Faulder, and
Lynda's husband when Faulder showed Hughes a pistol.
Lynda McCann confirmed that she met Faulder and
Hughes for the first time when she went to the bar with Moulton on
June 27th. She confirmed that Moulton drew a map of the victim's house,
that there was a discussion of a burglary, that Faulder said he could
crack safes, and that they all drove to the victim's house that night.
She added that Hughes did not participate in the conversations
regarding the proposed burglary. She testified that Faulder stayed at
her house around July 5th and told her that, if anyone asked about the
house they had looked at, she was to tell them Faulder had forgotten
about it.
On July 8th, Faulder told Lynda he wanted her to go
with him to check out the house again and see if it felt right.
Faulder, who had no car, had obtained a car which had been "hot-wired."
The two drove to a convenience store, which Faulder entered with a gun
to determine if it looked right for a robbery. Faulder decided against
that robbery. After declining Lynda's request to take her home,
Faulder proceeded to the victim's house.
When they arrived at the victim's house, the two
approached the house, at Faulder's instructions, and Lynda knocked on
the door. When no one answered, Lynda asked Faulder to leave, but he
said no, and they walked to the back of the house. Faulder possessed a
pistol and a blackjack at the time. When Lynda knocked on the back
door, the victim opened the door slightly and Faulder then forced his
way inside with the gun in his hand. Faulder told the victim that she
would not be hurt if she cooperated, and made her go to her bedroom.
Faulder questioned her about the safe, but she said there was nothing
in it and that she did not remember the combination. However, she
directed Faulder to where the combination was written down. Faulder
left the gun with Lynda while he went to open the safe.
While they waited, Lynda put the gun down to calm
the victim, but Phillips grabbed for the weapon, they struggled over
it, and it went off. Faulder returned, angry because of the gunshot
and because there was nothing in the safe. Faulder put tape over the
victim's mouth and told Lynda to leave the room. Shortly thereafter,
Lynda began to hear thumps and moaning. Lynda then saw Faulder obtain
a long knife from the kitchen and heard one more thump from the
bedroom. Faulder then came out with a bag and they left. While driving
away from the scene, Faulder said that he knew the victim was dead
because he had stabbed her. Faulder also threw the blackjack out the
car window.
When they returned home, Lynda told her husband,
Harold Ernest "Ernie" McCann, that they had been to the victim's house
and that she was dead. Lynda testified that the charges against her
were eventually reduced to conspiracy to commit burglary of a
habitation and that she had pleaded guilty in exchange for her
testimony and a sentence of ten years probation.
Ernie McCann testified that Faulder stayed with him
and Lynda, and that he overheard them talking about criminal activity.
For instance, he heard Faulder say something like "I might have to
knock her in the head." He was also present when Lynda and Faulder
came home on July 8th and Lynda said, "She is dead." He saw that
Faulder had a bag with him which was filled with jewelry. McCann then
followed Faulder to a gas station where Faulder left his car and rode
back with McCann. Faulder told McCann that "there was an accident,
that they didn't mean to kill the woman," but that she fell on a knife
and then they hit her in the head because she was still alive. McCann
also confirmed that Faulder had possessed a blackjack and a pistol.
PROCEDURAL HISTORY
Faulder was originally indicted on June 1, 1977, in
the 124th Judicial District Court of Gregg County, Texas, in Cause No.
11,139-B, for the murder of Inez Phillips committed in the course of
aggravated robbery, a capital offense. Faulder was convicted of the
capital offense and sentenced to death. However, in 1979, the Texas
Court of Criminal Appeals reversed Faulder's conviction and sentence,
having concluded that police had obtained a confession from Faulder in
violation of constitutional protections. In 1980, the United States
Supreme Court denied a petition for writ of certiorari filed by the
State.
The State retried Faulder, this time on a change of
venue to Angelina County. Faulder was again found guilty of the
capital offense and was sentenced to death on July 10, 1981. His
conviction and sentence were affirmed by the Court of Criminal Appeals
on September 30, 1987.
In 1991 and 1992, Faulder filed for state habeas
review in the form of an application and three amended applications.
After an evidentiary hearing, the state trial court recommended the
denial of habeas relief on November 23, 1992, and the Court of
Criminal Appeals denied relief.
On December 2, 1992, Faulder filed a federal
petition for writ of habeas corpus in the United States District Court
for the Eastern District of Texas. After an evidentiary hearing, the
federal district court denied relief on March 31, 1995. On appeal, the
United States Court of Appeal for the Fifth Circuit affirmed. The
Supreme Court denied Faulder's petition for writ of certiorari on
November 18, 1996.
On May 30, 1997, Faulder filed another application
for state writ of habeas corpus. The Court of Criminal Appeals denied
relief on September 16, 1998, and denied Faulder's motion for
reconsideration on October 21, 1998. The Supreme Court denied
Faulder's petition for writ of certiorari on January 25, 1999. Prior
to that time, Faulder had filed another application for state writ of
habeas corpus, which was dismissed by the Court of Criminal Appeals
the following day. On June 4, 1999, Faulder filed another application
for state writ of habeas corpus. As of June 8, 1999, the application
is pending before the Court of Criminal Appeals.
Additionally, Faulder has been involved in civil
litigation, in state and federal court, regarding the clemency
policies of the Texas Board of Pardons and Paroles. In state court, a
Travis County state district court denied relief on January 8, 1999,
after a hearing. That decision was affirmed by the Third Court of
Appeals on May 18, 1999. Faulder's federal court action was filed
December 8, 1998, in the United States District Court for the Western
District of Texas, Austin Division. After a hearing, the federal
district court denied relief on December 9, 1998. As of June 8, 1999,
an appeal is pending in the Fifth Circuit.
PRIOR CRIMINAL HISTORY
At the punishment phase of trial, the State
presented two witnesses who testified that Faulder had a bad
reputation in his community for being a peaceful and law abiding
citizen. Additionally, psychiatrist Clay Griffith testified, based
upon a hypothetical question derived from the facts of the case, that
a defendant who committed such acts had an anti-social personality and
would kill again. Psychiatrist James Grigson similarly testified from
a hypothetical that the individual would continue to commit acts of
violence. Finally, psychiatrist James Hunter testified from a
hypothetical that the individual would be highly likely to engage in
continued acts that would be a danger to society.
DRUGS AND/OR ALCOHOL
There was no evidence of drug or alcohol use in
connection with the instant offense.
Joseph Stanley Faulder, 61, 99-06-17, Texas
Convicted killer Joseph Stanley Faulder became the 1st Canadian in
almost a half-century to be executed in the United States Thursday
evening.
Faulder, 61, was pronounced dead at 6:18 p.m., 6 minutes after the
flow of lethal drugs began. He coughed twice, let out 2 gasps and
then stopped moving.
Faulder nodded to his lawyer, Sandra Babcock, as she walked into the
death chamber. Ms., Babcock stood right against the glass and asked
Faulder, "You O.K.?" He didn't respond.
When the warden asked Faulder whether he had any last words, Faulder
shook his head and said, "No statements."
Faulder, 61, didn't deny killing 75-year-old Inez Phillips during a
burglary of her East Texas home in 1975. But attorneys for the
former auto mechanic from Jasper, Alberta, argued his conviction was
tainted because he never was told after his arrest that he could
seek legal assistance from Canadian authorities as allowed under
international law.
The Canadian government filed documents in Faulder's appeals
protesting his treatment and won the backing of U.S. Secretary of
State Madeleine Albright in calling for a reprieve. The federal
courts, however, rejected Faulder's appeals and state officials,
including Gov. George W. Bush, refused other requests that could
have blocked the execution.
The Supreme Court late Thursday afternoon denied another request for
a reprieve, clearing the way for the execution. Faulder's attorneys,
asking the punishment be stopped, cited a 200-year-old law that
allows foreign citizens to sue American officials if they have been
harmed by breaches of treaties.
"There is no new evidence that questions the jury's verdict that he
is guilty of this crime," Bush said, refusing to issue a one-time
30-day reprieve.
In December, the high court halted Faulder's scheduled execution
about 30 minutes before he could have received lethal injection. In
January, the justices rejected his appeal, lifted their reprieve and
state officials set the new execution date for Thursday.
It was his 10th execution date.
"I'm at peace with my maker," Faulder told prison officials Thursday
as he was moved from death row to a holding cell adjacent to the
death chamber. "I'm ready to go."
He refused repeated requests in recent months for interviews with
reporters.
"12 jurors have spoken by convicting Mr. Faulder and sentencing him
to death," Attorney General John Cornyn said. "10 different courts
and more than 38 judges have reviewed a total of 17 appeals, each
time rejecting his appeal and affirming the capital murder
conviction."
Faulder would be oldest of the 178 inmates executed in Texas since
the state resumed carrying out capital punishment in 1982. The total
is the highest in the United States.
Faulder's case attracted much media attention in Canada, a country
that outlawed capital punishment in 1976. In Canada, convicted
murderers can be sentenced to life in prison with no chance for
parole until at least 25 years are served. The last execution of a
Canadian in the United States was in the early 1950s.
Faulder was being held in Colorado in 1977 on unrelated charges when
he was charged with the murder 2 years earlier of Mrs. Phillips at
her home in Gladewater, about 115 miles east of Dallas.
His attorneys contended Canadian authorities should have been told
of his murder arrest and detention under terms of the Vienna
Convention on Consular Relations. Also under that treaty, Texas
authorities should have informed Faulder of his right to contact the
Canadian government for help, his attorneys said.
"We continue to regret the long delay between the time Mr. Faulder
was arrested and when Canadian consulate officials learned of the
case," a State Department spokesman, who asked that he not be
identified by name, said Thursday. "But under our system, we've
exhausted all of our possibilities and recognize that the final
decision is in the hands of the state."
Odis Hill, the former Gregg County district attorney who prosecuted
Faulder, said while authorities knew of Faulder's ties to Canada
because he spent at least 2 prison terms there, it was at Faulder's
insistence Canadian authorities were kept in the dark.
"He has had every legal resource that any individual could ever ask
for or enjoy under our Constitution," Hill said.
When arrested, Faulder was carrying a Colorado driver's license and
had applied for a Texas license. It wasn't until 15 years later that
his family, who believed he was long dead, and the Canadian
government discovered he was alive.
Trial testimony revealed how Faulder and his girlfriend, Lynda
McCann, barged into Mrs. Phillips' house July 8, 1975.
Faulder ordered Mrs. Phillips to surrender the combination to a
floor safe. While Faulder worked on the safe, Ms. McCann, carrying
Faulder's gun, and Mrs. Phillips struggled over the weapon and it
discharged.
Faulder became enraged over the gunfire and also that he found the
safe empty. He ordered Ms. McCann from the room. A maid found Mrs.
Phillips' body the next morning. A 6 1/2-inch butcher knife was
embedded in her chest. Her arms were tied and tape covered her
mouth. Ms. McCann later testified against Faulder.
"Too often we lose sight of the horrific circumstances of the crime
and the tragic plight of the victims and their families," Cornyn
said.
Faulder's first conviction was thrown out by an appeals court which
found his confession was improperly obtained. He was retried,
convicted and condemned again in 1981.
Faulder becomes the 14th condemned inmate to be put to death this
year in Texas, and the 178th overall since Texas resumed executions
on Dec. 7, 1982.
Joseph
Stanley FAULDER
Mary Robinson, the U.N. High Commissioner for
Human Rights, made a last-minute appeal to U.S. Secretary of State
Madeleine Albright to block the Texas execution of a Canadian
national scheduled for Thursday.
"I urge you to use your influence with a view to stopping the
execution and initiating a thorough review of this case," Robinson,
the former president of Ireland, wrote.
"The loss of life resulting from the execution of death sentence is
irreparable," she said, adding that the legal process was fraught
with irregularities.
The United States is the only western democracy to retain the death
penalty.
Barring a reprieve from Texas Gov. George W. Bush, Canadian Stanley
Faulder, on death row since 1996, was scheduled to die by lethal
injection at the state prison in Huntsville shortly at 7 p.m. EDT
(2300 GMT) on Thursday.
A 61-year-old native of Jasper, Alberta, Faulder was convicted of
the December 1975 murder of an elderly widow, Inez Phillips, during
a botched robbery at her home in Gladewater, Texas, 120 miles (190
km) east of Dallas.
Robinson, in her letter, said Texas violated Faulder's right to
Canadian consular services under international law and obtained a
confession from him without a lawyer present.
"I have received reports alleging several irregularities in Mr.
Faulder's trial and appeals process, among these being the fact that
he was not informed of his rights under the Vienna Convention on
Consular Relations to seek assistance from his consulate after his
arrest," she said.
Canadian authorities were unaware of Faulder's situation until 1992
when his lawyer contacted the Ottawa government, Robinson added.
"It is further reported that immediately after his arrest Mr.
Faulder was interrogated for four days during which time he was
denied access to legal counsel," she said. "It appears that after
these 4 days he was also made to sign a confession without the
presence of a lawyer."
The U.S. federal government has had little success in getting
executions stayed on grounds of international law in similar cases
despite the Vienna treaty that allows foreigners to seek consular
services, a provision used frequently by American citizens in
trouble abroad.
In Texas, one lower court 2 years ago refused to allow the
extradition of a Rwandan indicted for participating in the 1994
genocide in his country by a U.N. war crimes tribunal the United
States had helped to set up.
Texas Executes Canadian
Killer Despite International Pleas
By Barbara Whitaker - The New York Times
A Canadian
man who survived nine dates with death in 22 years on death row in
Texas was executed today despite international pleas again to halt the
proceeding.
The man, Joseph Stanley Faulder, 61, who was
sentenced to death for the 1975 murder of a wealthy elderly woman, was
the first Canadian to be executed in the United States since 1952.
Canadian officials, as well as human rights groups
and international legal authorities, had sought to halt the execution
for several reasons, among them that Mr. Faulder was never notified of
his right to contact the Canadian Consulate.
In a final appeal, which was rejected by the United
States Supreme Court about 75 minutes before the execution, Mr.
Faulder's lawyer, Sandra Babcock, turned to a 200-year-old law, the
Alien Tort Claims Act, that allows foreign citizens to sue the United
States for violations of international law. Ms. Babcock argued that
Texas violated the Vienna Convention on Consular Relations' guarantee
that citizens arrested abroad be allowed to seek assistance from their
consulates.
She also argued that the 22 years Mr. Faulder spent
on death row were excessive and that his nine prior execution dates
resulted in cruel and unusual punishment.
The appeal was rejected without comment, clearing
the way for Mr. Faulder's death by injection shortly after 6 P.M. His
execution was the 14th this year in Texas and the 178th since the
death penalty was reinstated in the state in December 1982.
Asked about the international legal aspects of the
case, a spokeswoman for Gov. George W. Bush said that was a matter for
the courts.
Pressed on the diplomatic nature of the issue,
particularly since Governor Bush is a Presidential candidate, the
spokeswoman said, ''Canada is a friend and neighbor of the United
States and we hope Canadians understand that Governor Bush has taken
an oath to uphold the laws of Texas, including the death penalty.''
The Pardons and Paroles Board voted 18 to 0 on
Wednesday to deny Mr. Faulder's request for reprieve or commutation of
sentence. Governor Bush cannot grant a reprieve without the support of
the board, though he could grant a one-time 30-day delay.
Attorney General John Cornyn of Texas defended the
execution, noting that ''10 different courts and more than 38 judges
have reviewed a total of 17 appeals, each time rejecting his appeal
and affirming the capital murder conviction.''
Mr. Faulder was arrested in Colorado in 1977 nearly
two years after the stabbing death of Inez Phillips in a July 1975
robbery of her home in Gladewater, Tex. Ms. Phillips was also severely
beaten.
The issues regarding Mr. Faulder's citizenship did
not come to light until 1991 when Ms. Babcock began representing him,
and she contacted the Canadian Consulate in Dallas, which had no
record of Mr. Faulder. She has argued that the consulate's involvement
in the case could have bolstered his defense.
The case also focused attention on questionable
practices of the Texas Pardons and Paroles Board. In an appeal that
the United States Supreme Court denied on Wednesday, Ms. Babcock
argued that the clemency process in Texas failed to meet minimum
standards of fairness.
Texas executes Canadian
Stanley Faulder
By Kate
Randall - World Socialist Web Site
June 19, 1999
Stanley Faulder, a 61-year-old native of Jasper, Alberta, was
executed by lethal injection in Huntsville, Texas on Thursday. His
final appeal to the US Supreme Court was rejected 75 minutes before
he was put to death. Faulder became the first Canadian executed in
the US since 1952.
Aspiring presidential candidate and Texas
Governor George W. Bush did not intervene to halt the execution. The
Texas Board of Parole and Pardons voted 18-0 Wednesday to deny
Faulder's request for reprieve or commutation of sentence. Although
Bush could not override their ruling, he could have granted a
one-time 30-day delay.
Plans to execute Faulder had provoked
international protest because Texas authorities failed at the time
of his arrest to inform him of his right to seek assistance from the
Canadian consulate. In violation of the Vienna Convention on
Consular Relations, Faulder had been in prison for 15 years before
the Canadian government was informed of his arrest and conviction.
The United States is a signer to the treaty, although Texas claims
it is not required to abide by it, as the state did not sign it.
Amnesty International, the human rights group,
has reported that it knows of 73 foreign nationals from 24 countries
currently sitting on death row in the United States. Of these, only
three were informed of their consular rights. Texas has executed
three foreign nationals—Carlos Santana, Ramon Montoya and Irineo
Tristan Montoya. The state of Virginia executed Paraguayan Angel
Francisco Breard early last year, despite protests from the
International Court of Justice.
Secretary of State Madeleine Albright had
intervened in the Faulder case, urging a full clemency review and
the granting of a 30-day reprieve. The Canadian government had also
called for a stay of the execution. Faulder's lawyer Sandra Babcock
argued as well that the 22 years the prisoner spent on death row and
his nine previous execution dates constituted cruel and unusual
punishment.
Faulder was convicted in 1977 for the 1975 murder
of an elderly woman in Gladewater, Texas, and was sentenced to death.
The victim's wealthy family hired private prosecutors, and their
case relied upon the testimony of an alleged accomplice in the crime,
who was granted immunity. The family offered this witness a large
cash payment in exchange for testimony incriminating Faulder. The
prosecution also hired "expert" witnesses to testify to Faulder's
supposed sociopathic tendencies.
Faulder was provided with a court-appointed
lawyer, who never brought out at trial that Faulder had suffered a
massive head injury at the age of three, causing permanent brain
damage and mental impairment. The attorney carried out no pre-trial
investigation and called no witnesses. Texas law does not forbid the
execution of the mentally impaired.
In a related development, Governor Bush is
expected to veto a bill passed by the both houses of the Texas state
legislature that would provide the most minimal protection for
indigent defendants. The bill would require that defendants be
provided with legal counsel within 20 days of requesting one. In
most states, the court must appoint an attorney within 72 hours. In
Texas the appointment of attorneys to the indigent is the
responsibility of local judges, who determine their fees. Judges,
who are elected in the Texas, often assign these cases to lawyers
who have contributed to their campaigns.
As of April 1, there were 436 prisoners on death
row in Texas, including 24 juveniles. Those as young as 17 can
receive a death sentence. Since the death penalty was reinstated in
the US in 1974, the state has carried out 176 executions, the
greatest number of any US state.
Adding Insult to Injury:
the case of Joseph Stanley Faulder
Joseph
Stanley Faulder, age 61, is a Canadian citizen facing imminent
execution in Texas. After 21 years under sentence of death,
Faulder has exhausted all normal avenues of appeal; he is now
scheduled to die by lethal injection on 10 December, 1998 -
International Human Rights Day. In a morbid irony, Faulder's
execution would thus coincide precisely with the 50th
anniversary of the UN Universal Declaration of Human Rights.
The case of
Stanley Faulder illustrates many of Amnesty International's
long-standing concerns over the administration of the death
penalty in Texas, including grossly deficient trial procedures,
inadequate appellate review, violations of international law and
the absence of any meaningful clemency process.(1) Amnesty
International is calling on authorities in the USA to reaffirm
their commitment to universal human rights standards by
commuting Stanley Faulder's death sentence on humanitarian
grounds.
Case
Summary
On 8 July
1975, Inez Phillips, age 75, was murdered during the burglary of
her home in Gladewater, Texas. The crime shocked and outraged
the town's residents: Mrs. Phillips was the widow of the former
mayor of Gladewater and the matriarch of a wealthy and
influential Texas oil family.
According
to the prosecution's version of the events, Stanley Faulder and
Linda McMann, a former prostitute, planned to rob a floor safe
in the Phillips’ home. McCann later testified that, while she
was struggling with the victim, Faulder subdued Inez Phillips
with a cosh and then fatally stabbed her with a knife which he
found in the kitchen.
The
victim's son, Jack Phillips, immediately offered a $50,000
reward for information on the crime. Linda McCann was quickly
arrested and accused Faulder of planning the burglary and
committing the murder. In 1977, Faulder was arrested in Colorado
and returned to Texas.
Faulder was
never informed after his arrest that he could seek assistance
from his consulate, an essential legal right guaranteed to all
detained foreigners under the Vienna Convention on Consular
Relations.(2) Following a four-day interrogation during which
his requests for an attorney were ignored, Stanley Faulder
signed a "confession".
No physical
evidence of any kind links Faulder to the crime, leaving the
prosecution reliant on his "confession" or the testimony of his
accomplice to prove he was the actual killer. However, on the
strength of his statement to the police, he was speedily
convicted and sentenced to death. Linda McCann was charged only
with conspiracy to commit burglary and did not testify at
Faulder's trial.
In 1979,
the Texas Court of Criminal Appeals overturned Faulder's
conviction, finding that his statement to the police was
illegally obtained. Without any corroborating evidence, the
local District Attorney lacked a sufficiently strong case to
re-prosecute Faulder on a capital murder charge. Learning that
the authorities were contemplating a plea offer of life
imprisonment, Jack Phillips hired two private prosecutors for
the express purpose of obtaining a new death sentence against
Stanley Faulder.
The private
prosecutors concluded that Linda McCann's testimony was crucial
for a conviction. Prior to any recorded contact with the
District Attorney's office, Phillip's attorneys offered Linda
McCann immunity on the murder charge in exchange for her
incriminating testimony--even though McCann was equally eligible
for the death penalty under Texas law. Her cooperation was
further induced when Jack Phillips offered her up to $15,000 in
"relocation expenses".
Since
McCann was an admitted participant in the crime, her testimony
could not be used to convict Faulder without corroboration. The
Phillips family paid her husband, Ernie McCann, a member of a
local motorcycle gang, $2,000 in exchange for testimony
supporting his wife's version of the events. This testimony
simply consisted of McCann stating that his wife had told him
the same version of event as the one she told the Court.
In total,
Jack Phillips paid the private prosecutors approximately
$100,000 for their successful effort to obtain a new death
sentence against Faulder. A month before the trial, the District
Attorney formally appointed a lawyer to the prosecution team, to
preserve the semblance of public control over what was, in
effect, a private vendetta launched by a wealthy person against
an indigent defendant.
At trial,
Faulder was represented by a court-appointed attorney who called
no witnesses and who failed to investigate his client's
background. The defence strategy consisted of challenging the
credibility of Linda McCann--who deliberately misled the jury by
denying that she had been offered money in exchange for her
incriminating testimony.
During the
sentencing phase of the trial, the jury heard from Dr. James
Grigson, a Dallas psychiatrist notorious for providing testimony
for the prosecution in Texas death penalty trials. In response
to hypothetical questions about the nature of the crime, Grigson
stated that Faulder was an untreatable sociopath "of the
severest kind", who would certainly kill again, even if
imprisoned. Grigson's testimony was crucial: under Texas law,
jurors must unanimously decide that the defendant represents a
continuing danger to society before they can impose a death
sentence.
Confronted
with this devastating testimony from a medical "expert", the
jury heard no rebuttal from the defence. Faulder's attorney
presented no mitigating evidence of any kind, even though
readily-available medical records and character testimony could
have completely discredited Grigson's diagnosis. In July 1981,
Stanley Faulder was once again convicted and sentenced to death.
The Faulder
case languished in the state appeal courts for nearly a decade
before an attorney from the Texas Resource Center was appointed
to file his first state habeas corpus petition. Learning
of her client's nationality, the attorney contacted the Canadian
Consulate in Dallas. Consular officials informed her that they
had no record of Faulder. His name had never appeared on the
annual list of imprisoned foreigners provided by state officials
to facilitate consular visits.
Upon
contacting the Faulder family in Canada, the attorney learned
that they had been unaware of his whereabouts for many years and
were deeply distressed when informed of his death sentence.
Family members and friends remembered Stan Faulder as a kind and
non-violent person and would gladly have testified on his behalf
at the trial. They also informed the attorney of a severe
childhood head injury Faulder sustained, which resulted in
periodic 'blackouts' and impulsive behaviour throughout his
youth.(3)
Armed with
this new information which the trial lawyer had failed to
obtain, Faulder's appellate attorney filed a comprehensive
habeas corpus petition alleging serious irregularities in
the trial procedures. During 1992, Faulder survived six
consecutive execution dates obtained by Texas officials while
the lower courts reviewed his claim.
At a 1992
evidentiary hearing, a completely different picture of Stanley
Faulder emerged than the one presented to the jury, based on
information from medical experts, family members and friends.
Two clinical psychologists who conducted extensive evaluation
and testing of Faulder concluded that he suffered brain damage
as a child, impairing his ability to make appropriate
behavioural decisions in stressful situations.
Numerous
family members and friends testified that Stanley Faulder was a
generous person with no history of violent behaviour, as well as
a loyal friend and a loving father. The court agreed that
Faulder's defence attorney was deficient for failing to present
this mitigating evidence, but concluded that this positive
testimony would not have altered the outcome of the trial.
A
subsequent hearing in 1993 revealed new evidence of misconduct
by the prosecution. Buried in their files was a hand- written
note prepared by one of the private prosecutors. The note
revealed that, according to Linda McCann, her husband Ernie was
involved in the planning of the crime. If true, Ernie McCann
would thus be an accomplice, making his trial testimony both
inadmissible and false. Both McCanns testified that Ernie was
not involved and only learned of the crime after it occurred.
The
prosecutor's note was never revealed to the defence. Faulder's
trial attorney was thus unable to properly challenge the
truthfulness and credibility of both of the prosecution's key
witnesses. Without the testimony of Linda and Ernie McCann, the
case against Faulder would have collapsed. With that testimony,
Stanley Faulder was convicted and sentenced to death; Linda
McCann was given a suspended sentence for her participation in
the burglary and walked out of court a free woman.
In 1996,
the US Fifth Circuit Court of Appeals dismissed Faulder's
habeas corpus petition on all grounds. The Court found that
the hiring of private prosecutors by the victim's family was
permissible, because the District Attorney had retained
"control" of the case. The failings of Faulder's court-appointed
attorney were likewise excused; the Court was "not persuaded"
that the testimony of more than a dozen available defence
witnesses would have resulted in a single juror voting against
the death sentence.
The Fifth
Circuit concluded that the admitted breach of Faulder's consular
rights was "harmless error", because the defence had access to
all of the information that could have been obtained from the
Canadian government. The mere fact that Faulder's attorney
"could have obtained" crucial mitigating evidence (which he did
not) was deemed sufficient to excuse a grave violation of human
rights under a binding international treaty.
Yet, there
is every indication that the timely intervention of Canadian
consular officials could well have altered the entire course of
the trial and its outcome. In a series of amicus curiae(4)
briefs submitted in support of Faulder's appeals, Canada has
stated that the consulate would have assisted in pre-trial plea
negotiations, found competent legal representation for Faulder
and facilitated the presentation of extensive mitigating
evidence (including medical records) available only from
Canadian sources.
Far from
being harmless, Canada has submitted to the US courts that the
violation of the Vienna Convention "deprived Mr. Faulder of a
right under international law which may have prejudiced his
ability to receive a fair trial and sentencing hearing".
Canada's position was recently supported by the findings of a
United Nations report. In a 1998 survey of death penalty
procedures in the USA, the UN Special Rapporteur on
extrajudicial, arbitrary and summary executions made specific
reference to the Faulder case and the appellate courts' finding
of "harmless error". The report determined that "not informing
the defendant of the right to contact his/her consulate for
assistance may curtail the right to an adequate defence", as
provided for by the International Covenant on Civil and
Political Rights.(5)
Stanley
Faulder was scheduled to be executed on June 13, 1997, following
the dismissal of his appeal by the US Supreme Court. Well in
advance of the date, his attorney filed a substantive clemency
application with the Texas Board of Pardons and Paroles. The
petition contained more than 20 exhibits and affidavits in
support of the commutation of his death sentence.
Among the
many statements of support was one from a woman who believes
that she owes her life to Faulder. In 1965, the woman was
seriously injured in an automobile accident. Arriving on the
scene moments later, Faulder rescued her from the wrecked car.
At considerable personal risk, he drove her through a blinding
blizzard to the nearest hospital in time for life-saving medical
treatment--hardly the actions of a remorseless sociopath.
The
clemency application also addressed the testimony of Dr. Grigson,
pointing out that his self-proclaimed total accuracy in
predicting defendants' future behaviour was completely false. In
1995, James Grigson was expelled from the American and Texas
psychiatric associations for unethical behaviour, resulting from
his grossly misleading and unscientific testimony in death
penalty trials.
Four days
before his 1997 execution date, Faulder was granted a stay of
execution to permit further review of evidence indicating that
the prosecution permitted its key witnesses to lie under oath at
the trial. The Board of Pardons did not respond to Faulder's
application for executive clemency.
In
September 1998, the Texas Court of Criminal Appeals lifted the
stay of execution, paving the way for the setting of Joseph
Stanley Faulder's ninth--and possibly final--execution date. The
government of Canada continues to support his efforts to obtain
a new trial or the commutation of his sentence.
Conclusion
Despite
inadequate legal representation, prosecutorial irregularities
and a glaring violation of treaty law, the US courts of appeal
have consistently failed to grant Faulder a new trial or
sentencing hearing. Two decades after the trial, serious doubts
have emerged over the credibility of the evidence used to
convict and sentence him to death.
Since 1992,
when Faulder first raised his Vienna Convention claim, seven
foreign nationals have been executed in the USA. None were
informed after arrest of their international legal right to
consular assistance. The US government continues to assert that
the protection of the consular rights of its nationals abroad is
a matter of the highest importance; domestic violations of those
selfsame rights which contributed to death sentences are
minimized or ignored.(6) To date, the US Department of State has
declined to intervene in the Faulder case, failing even to
apologize to Canada for the violation of its sovereign treaty
rights.
For the
citizens and governments of many nations worldwide, the fiftieth
anniversary of the Universal Declaration of Human Rights will be
a cause for celebration and an opportunity for rededication to
the stirring principles enshrined in the Declaration. But in
Texas, barring a last-minute intervention to halt Stanley
Faulder's execution, December tenth will be just another day of
state sanctioned killing.
On 26
October 1998, Amnesty International issued an “urgent action”
calling for the Texas authorities to spare the life of Joseph
Stanley Faulder. To take part in this action please contact your
countries’ Amnesty International section and request UA index
number AMR 51/85/98.
****
(1) For a
comprehensive summary of AI concerns, see The Death Penalty
in Texas: Lethal Injustice, AI Index: AMR 51/10/98, March
1998.
(2) Although the USA has ratified the Convention without
reservations and insists on its application to US nationals
arrested abroad, foreign nationals facing the death penalty in
the USA are rarely informed of their consular rights--with
disastrous consequences for their trial defence. For additional
information, see: USA: Violation of the Rights of Foreign
Nationals Under Sentence of Death, AI Index: AMR 51/01/98,
January 1998.
(3) Faulder assumed that his family were aware of the murder
charge and had simply disowned him. He has also stated that he
had no knowledge of the presence of Canadian consular
representatives in Texas or of his right to seek their crucial
assistance after his arrest.
(4) A "friend of the court" brief which may be filed (with the
court’s permission) by parties interested in the outcome of the
case but not directly involved.
(5) Report to the UN Commission on Human Rights (document
E/CN.4/1998/68/Add.3), Findings of the Special Rapporteur, 117-
121.
(6) For a summary of recent developments, see:,USA: The
Execution of Angel Breard: Apologies Are Not Enough, AI
Index: AMR 51/27/98, May 1998.
Amnesty International
81 F.3d 515
Joseph Stanley Faulder, Petitioner-Appellant, v.
Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
No. 95-40512
Federal Circuits, 5th Cir.
April 10, 1996
Appeal from the United States District Court for
the Eastern District of Texas.
Before JONES, DUHE and WIENER, Circuit Judges.
DUHE, Circuit Judge:
Petitioner appeals from denial of his petition for
writ of habeas corpus seeking relief from his death sentence. We
affirm.
Petitioner, Joseph Stanley Faulder, is a Canadian
citizen who was twice convicted and sentenced to death for the murder
of Inez Phillips, an elderly widow, during the armed robbery of her
home. The first conviction was reversed by the Texas Court of Criminal
Appeals because Faulder's confession, which was admitted into evidence,
was obtained in violation of the Fifth Amendment. Faulder v. State,
611 S.W.2d 630 (Tex.Crim.App.1979), cert. denied
449 U.S. 874 , 101 S.Ct. 215, 66 L.Ed.2d 95 (1980). The
second conviction was obtained with testimony from Faulder's
accomplice, Lynda McCann, who did not testify at the first trial.
Because no physical evidence connects Faulder to the murder, McCann's
testimony was critical.
After unsuccessful direct appeals, Faulder filed a
petition for habeas corpus and a motion for stay of execution in state
court. The court held an evidentiary hearing on Faulder's ineffective
assistance of counsel claim and recommended that relief be denied. The
Court of Criminal Appeals denied Faulder's petition.
Faulder now seeks relief from the federal courts.
He filed a petition for writ of habeas corpus and motion for stay of
execution. The district court granted the stay of execution and held
an evidentiary hearing on the use of special prosecutors and whether
the prosecution allowed McCann to testify falsely. After the hearing,
the court denied Faulder's petition but granted a certificate of
probable cause to appeal. Faulder claims he is entitled to relief
because: (1) the use of special prosecutors violated the Eighth and
Fourteenth Amendments, (2) the prosecution allowed its chief witness,
Lynda McCann, to testify falsely in violation of Faulder's Fifth,
Sixth and Fourteenth Amendment rights, (3) Faulder received
ineffective assistance of counsel, and (4) Faulder's right to
compulsory and due process was violated when law enforcement officials
violated the Vienna Convention on Consular Relations.
We review the district court's findings of fact for
clear error, but review issues of law de novo. Williams v. Collins, 16
F.3d 626 (5th Cir.1994). A finding of fact is clearly erroneous only
when the reviewing court, after reviewing the entire evidence, is left
with the definite and firm conviction that a mistake has been made. Id.
I. The use of special prosecutors
There is no per se constitutional prohibition
against the use of special prosecutors. Powers v. Hauck, 399 F.2d 322
(5th Cir.1968). However, the use of special prosecutors raises
concerns that the prosecutor's loyalty to the person who pays the
special prosecutor may override the interests of society in justice
and a fair trial for the accused. We require, therefore, that the
district attorney retain control of the prosecution, the special
prosecutor not be guilty of conduct prejudicial to the defendant, and
the rights of the defendant be duly observed. Id. at 325.
Faulder argues that the special prosecutors
controlled his prosecution. Control of the prosecution means control
of crucial prosecutorial decisions, such as whether to prosecute, what
targets of prosecution to select, what investigative powers to utilize,
what sanctions to seek, plea bargains to strike or immunities to grant.
East v. Scott, 55 F.3d 996 (5th Cir.1995). Control is not determined
according to a quantitative analysis or a determination of who was
lead counsel at trial. Person v. Miller, 854 F.2d 656 (4th Cir.1988) (cited
with approval in East, 55 F.3d at 1001). In fact, "[w]e can conceive
of situations in which without ever relinquishing effective control of
the prosecution government counsel might for tactical reasons give
over even more substantial portions of the actual conduct of trial to
particularly skilled or knowledgeable private counsel." Person, 854
F.2d at 663.
The special prosecutors in the second trial were
Odis Hill, the former district attorney who prosecuted Faulder at his
first trial and Phil Burleson, a former prosecutor and well known
criminal defense attorney. Mr. Hill resigned from his position as
district attorney between Faulder's first and second trial. After the
new district attorney, Robert Foster, was appointed, Hill offered to
assist in retrying Faulder. Within thirty days of taking office,
Foster faced two other demanding trials and the death of his mother.
Considering his professional and personal demands and the relative
inexperience of his remaining staff, Foster accepted Hill's offer.
Five months later, the victim's son agreed to pay fees to Hill's law
firm.1
After the first conviction was overturned, Burleson
was hired by the victim's son to determine whether a second
prosecution was possible without the use of Faulder's confession.
Burleson retained investigators and a Canadian law firm to aid in
rendering his opinion that a second prosecution could proceed provided
McCann would testify. All of Burleson's fees and expenses were paid by
the victim's son.
Foster assigned Jim McCoy, an assistant district
attorney with two years experience, to be his representative. McCoy
kept a low public profile both before and at trial and allowed Hill
and Burleson to take the lead in the proceedings. At the district
court evidentiary hearing, however, Hill testified that he always
understood that the district attorney had the final word and would
maintain control and management of the case. Hill maintained contact
with Foster and he and Foster were in agreement on decisions made
throughout the case. Burleson worked with Hill and Hill in turn made
the necessary contacts with Foster. Further, Hill, Burleson and McCoy
testified that they made decisions together, prepared witnesses
together, were in agreement on most issues and worked out the
differences on all others.
In light of Hill's prior relationship with the
district attorney's office, the frequent communication between counsel
and clear understanding of the district attorney's final decision-making
authority, we agree with the district court's conclusion that the
district attorney controlled Faulder's prosecution.
Faulder claims that Burleson's investigative
activities were conducted without the involvement or knowledge of the
district attorney's office and therefore, he is entitled to relief.
This argument does not merit reversal. First, use of investigative
resources is only one of several prosecutorial decisions which we must
consider in determining control. Second, even if Burleson's actions
were violative of our standard, the violations were corrected once
Hill began to assist in the prosecution and McCoy was assigned by
Foster.2 From at
least that point on, the district attorney was in control of the
prosecution. See Woods v. Linahan, 648 F.2d 973 (5th Cir. Unit B June
1981).
Faulder also contends that the use of special
prosecutors violates the Eighth Amendment and causes arbitrary and
capricious imposition of the death penalty. He reasons that defendants
who kill wealthy victims are more likely to receive the death penalty
because their cases are more vigorously prosecuted by special
prosecutors hired by family and friends of the victim. We find no
merit in Faulder's argument. To accept this argument would mean that
prosecutions involving special prosecutors would be per se
unconstitutional in direct opposition to the rule of Powers.
II. Failure to correct false testimony
Faulder argues that he was denied due process when
the prosecution did not correct McCann's false testimony. At trial,
defense counsel asked whether McCann was promised $10,000 to $15,000
in return for her testimony. McCann stated, under vigorous cross
examination, that she had not been promised money in return for her
testimony. She said she expected relocation expenses although not in
the form of cash payment. The government's witnesses corroborate
McCann's testimony that McCann would be provided relocation expenses
by the victim's son to protect McCann from Faulder should he be
acquitted.
A state denies a criminal defendant due process
when it knowingly uses perjured testimony at trial or allows untrue
testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 92
S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79
S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Cordova v. Collins, 953 F.2d 167
(5th Cir.1992). To obtain relief, the defendant must show that (1) the
testimony was actually false, (2) the state knew it was false and (3)
the testimony was material. Kirkpatrick v. Whitley, 992 F.2d 491, 497
(5th Cir.1993). Faulder has not shown that McCann's testimony was
actually false.
III. Ineffective assistance of counsel
Faulder maintains that he received ineffective
assistance of counsel because his attorney presented no mitigating
evidence during the sentencing phase of the trial. Defense counsel
testified that he did not know that presentation of evidence at
sentencing was allowed under Texas procedure even though he was board
certified in criminal law and was a state criminal district attorney
for approximately four years.
To prevail on an ineffective assistance of counsel
claim, a defendant must show that (1) counsel's performance was
deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). The district court agreed that counsel's performance was
deficient3 but that
the performance did not prejudice the defense. To show prejudice, the
defendant must show that it is reasonably likely that the jury would
have reached a different decision absent counsel's unprofessional
errors. Strickland, 466 U.S. at 696, 104 S.Ct. at 2069.
Faulder argues that the following evidence could
have been introduced and would have caused the jury to deliver a
sentence other than death:
(1) Defendant sustained brain damage near his
fourth birthday when his head was split open on both sides after
falling out of a moving car.
(2) Expert testimony that Defendant suffered from
organic brain disorder which impaired his judgment and impulse control
and disqualifies a diagnosis of sociopathy and that Defendant suffered
from depression and alcoholism.
(3) Prison records from both Canada and the
United States which show that Defendant was a peaceable prisoner.
(4) Testimony from family and friends that the
Defendant was a loyal friend, a trusted employee, the father of two
girls and had once saved the life of an accident victim when he drove
the woman to the hospital in a blizzard.
This evidence, however, is double edged. Despite
Faulder's head injury, he did not exhibit confusion, uncertainty or
mental impairment during the murder. Faulder abandoned his children
and their mother when he left Canada. Faulder had no contact with his
family for the twenty years prior to trial and at trial, he instructed
his lawyer not to contact his family.4
The evidence also indicates that Faulder is intelligent and came from
a loving, supportive family which would make him less sympathetic. And,
the Canadian prison records contain information that despite his
mental abilities, he was unable to keep his behavior under control.
Testimony available from Texas authorities would have indicated that
he had a bad reputation.
We are not persuaded that had all this evidence
been introduced, a different sentence is a reasonably likely result.
IV. Vienna Convention
The Vienna Convention on Consular Relations
requires an arresting government to notify a foreign national who has
been arrested, imprisoned or taken into custody or detention of his
right to contact his consul. Vienna Convention on Consular Relations,
April 24, 1963, TIAS 6820, 21 U.S.T. 77. Canadian regulations require
the Canadian consul to obtain case-related information if requested by
the arrestee to the extent that it cannot otherwise be obtained by the
arrestee. Manual of Consular Instructions of the Department of Foreign
Affairs and International Trade of Canada, Volume 11, Chapter 2, Annex
D.
Texas admits that the Vienna Convention was
violated. After investigating the allegations, William Zapalac,
Assistant Attorney General of Texas, could find no evidence that
Faulder had been advised of his rights under the Convention. However,
the district court correctly concluded that Faulder or Faulder's
attorney had access to all of the information that could have been
obtained by the Canadian government. While we in no way approve of
Texas' failure to advise Faulder, the evidence that would have been
obtained by the Canadian authorities is merely the same as or
cumulative of evidence defense counsel had or could have obtained. See
United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73
L.Ed.2d 1193 (1982). The violation, therefore, does not merit reversal.
Judgment of the district court AFFIRMED, stay of
execution VACATED.
*****
1 Hill was also a special
prosecutor in Lynda McCann's case but was paid by the County
2 The exact point at which
Burleson's role changed from advisor to the victim's son to special
prosecutor is unclear. His investigation, therefore, may not have been
part of his prosecutorial activities
3 Compare Williams v. Collins,
16 F.3d 626 (5th Cir.1994) (failure to offer mitigating evidence at
sentencing phase not deficient if a result of a strategic choice)
4 Defense counsel asked
Faulder to have his family attend trial to humanize him before the
jury. Faulder argues that had he known they could testify, he would
have changed his mind about not contacting the family
178 F.3d 343
Joseph Stanley Faulder, Plaintiff-Appellant, v.
Texas Board of Pardons & Paroles, Et Al., Defendants-Appellees.
No. 99-50130
Federal Circuits, 5th Cir.
June 10, 1999
Appeal from the United States District Court for
the Western District of Texas.
Before JONES, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:
Appellant Stanley Faulder, now sentenced to be
executed on June 17, 1999, appeals from the district court's rejection
of his due process challenge to the procedures used by the Texas Board
of Pardons and Paroles. We find no error and affirm.
Faulder has been tried and sentenced to death twice
for murdering Inez Phillips in the course of committing aggravated
robbery. He has received dispositions on three state habeas petitions
and one federal habeas petition. He has participated in state court
civil litigation regarding the clemency policies of the Texas Board of
Pardons and Paroles (the Board).
The instant case was filed against the Board on
December 8, 1998, shortly before a previously scheduled execution
date, in order to contest the state's clemency procedures under 42
U.S.C. 1983. The district court temporarily stayed Faulder's execution,
but this court granted the Board's motion to vacate the stay, and this
court then denied Faulder's motion for en banc reconsideration. The
Supreme Court, however, stayed Faulder's execution pending a writ of
certiorari from one of his state habeas petitions. The Court denied
cert. on January 25, 1999. Faulder v. Texas, --- U.S. ----, 119 S.Ct.
909, 142 L.Ed.2d 907. A week earlier, the federal district court
denied section 1983 relief after a hearing.
On appeal, Faulder argues that the Board's
procedures do not meet "minimal due process" standards principally
because the Board allegedly violated applicable state law and its own
regulations, and Faulder received inadequate notice of issues the
Board would consider.1
In addition, Faulder alleges conclusionally in his brief that the
Board acts in secrecy, refuses to hold hearings, gives no reasons for
its decisions, and keeps no records of its actions. He describes the
Board's action as "an arbitrary exercise of administrative power."
These contentions are meritless. In Ohio Adult
Parole Authority v. Woodard, 523 U.S. 272, ----, 118 S.Ct. 1244, 1253,
140 L.Ed.2d 387 (1998), Justice O'Connor's concurring opinion stated
only that minimal procedural safeguards apply to clemency proceedings.
Id. at ----, 118 S.Ct. at 1254. The low threshold of judicial
reviewability is based on the facts that pardon and commutation
decisions are not traditionally the business of courts and that they
are subject to the ultimate discretion of the executive power. Id.
This is highlighted by Justice O'Connor's narrow view of when judicial
intervention into clemency decisions might be warranted: where a state
official "flipped a coin" to determine whether to grant clemency, or
the state arbitrarily denied a prisoner any access to its clemency
process. Id.
Faulder's clemency procedures exhibited neither of
these extreme situations. The federal district court conscientiously
explained the Board's procedures and the liberal, non-evidentiary
rules permitting Faulder to submit any information he thought
appropriate to the Board's decision. Board members testified at length
about their decision-making processes. The Board members reviewed the
information they believed material to Faulder's request, and each one
independently determined whether clemency ought to be recommended. The
Board staff furnished members with Faulder's or his family's
submissions and with such other information as was relevant or useful.
We need not go further in advising the Board what procedures it might
choose to adopt in the future, because what they did in this case
complied with the constitutional minimum set forth in Woodard.
Further, this court has previously rejected
arguments against the constitutionality of Texas's clemency procedures
for essentially the same reasons stated by the district court in this
case. Moody v. Rodriguez, 164 F.3d at 894. The state notes that Moody
is based on a slightly different voting form prepared for the Board in
capital cases after Faulder's petition was decided. The information
now contained on the form adds nothing relevant to the information
developed by the district court about the Board's actions in this
case.
Taken either individually or cumulatively under the
facts of this case, none of the objections that Faulder raises to the
Board's procedures represents an essential component of due process.
Procedural due process is an inherently flexible concept. And Woodard
emphasizes that extra flexibility is required when, as here, the
criminal process has reached an end and a highly individualized and
merciful decision like executive clemency is at issue. Faulder had
ample opportunity to present his best case to the Board, and the Board
gave it appropriate consideration.
For these reasons, the judgement of the district
court is AFFIRMED.
Faulder's motion to stay execution is DENIED. Moody
v. Rodriguez, supra note 1.
*****
1 This
court has jurisdiction over the district court's final judgment
adjudicating the section 1983 claim. 28 U.S.C. 1291. Unlike the
request for a stay of execution, the district court's judgment did not
purport to interfere with the state's carrying out of the death
penalty, an action that this court earlier considered an infringement
on habeas corpus jurisdiction. See Moody v. Rodriguez, 164 F.3d 893,
(5th Cir.1999); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36
L.Ed.2d 439 (1973); Buchanan v. Gilmore, 139 F.3d 982, 984 (4th
Cir.1998)
