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Sean Derrick
O'BRIEN
Classification: Murderer
Characteristics: Rape
- Gang
Number of victims: 2
Date of murders: June 24,
1993
Date of arrest: 5 days after
Date of birth:
April 5, 1975
Victims profile: Elizabeth Pena
(female, 16) and Jennifer Ertman (female, 14)
Method of murder: Strangulation
Location: Harris County, Texas, USA
Status: Executed
by lethal injection in Texas on July 11,
2006
Summary:
O'Brien was one of six members of a fledgling street gang drinking
beer after initiating a new gang member.
Elizabeth Pena, 16, and Jennifer Ertman, 14, were
walking home from a friend's house, taking a shortcut along some
railroad tracks when they stumbled upon the group.
Evidence showed the girls were gang raped for
more than an hour, then were kicked and beaten before being
strangled.
A red nylon belt was pulled so tight around
Jennifer Ertman's neck that the belt snapped. The belt was later
recovered from O'Brien's home.
The bodies of the two teenage girls were found
four days after they failed to return from a friend's house. When
the bodies were discovered, they were decomposing and mummifying in
100-degree heat.
O'Brien, who confessed to police, was one of six
gang members convicted in the case and the first to be executed.
The ninth-grade dropout, who had previous arrests
for shoplifting a pistol, assault and auto theft, also was a suspect
in a murder six months before the girls were killed but never was
charged.
Evidence put him at a Houston park where the body
of Patricia Lopez, 27, was found. A beer can carrying his
fingerprints was found under the remains of the woman. She had been
raped, eviscerated and had her throat cut.
Two of the gang members, Efrain Perez and Raul
Villarreal, had their death sentences commuted to life in prison
when the Supreme Court last year barred executions for those who
were 17 at the time of their crimes.
Peter Cantu, described by authorities as
ringleader of the gang, remains on death row without an execution
date.
Jose Medellin, who was condemned and who O'Brien
said was at one end of the belt being pulled around Ertman's neck as
he yanked on the other, had his case returned to the state courts
under an order from President Bush. Medellin is among some 50
Mexican-born offenders who argue that under international law they
should have been allowed assistance from the Mexican Consulate
before trial.
A sixth person convicted, Medellin's brother,
Vernancio, was 14 at the time and received a 40-year prison term.
Final Meal:
Declined.
Final Words:
"I am sorry. I have always been sorry," O'Brien said, holding his
head up and looking straight at relatives of his victims. "It is the
worst mistake that I ever made in my whole life. Not because I am
here but because of what I did and I hurt a lot of people, you and
my family." He repeated again and again that he was sorry.
ClarkProsecutor.org
Texas Department of Criminal
Justice
Inmate: O'Brien, Sean Derrick
Date of Birth: 4/5/75
TDCJ#: 999131
Date Received: 11/18/94
Education: 9 years
Occupation: laborer
Date of Offense: 6/24/93
County of Conviction: Harris
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5 ft 08 in
Weight: 177
Texas Attorney General
Media Advisory
Wednesday, July 5, 2006
Derrick Sean O'brien Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Derrick Sean O’Brien, who is
scheduled to be executed after 6 p.m. Tuesday, July 11, 2006.
On September 9, 1997, Derrick Sean O’Brien was
sentenced to die for the June 1993 capital murder of Houston
teenager Jennifer Ertman. A summary of the evidence presented at
trial follows.
FACTS OF THE CRIME
On the night of June 24, 1993, O’Brien
participated in the gang initiation of Raul Omar Villareal. Four
other gang members, Peter Cantu, Roman Sandoval, Joe Medellin, and
Efrain Perez, were present at the initiation, as were Frank Sandoval
and Vernancio Medellin, brothers of two of the gang members.
The initiation consisted of Villareal fighting
each of the other gang members for several minutes. Following this
ritual, the gang members drank beer.
At about 11:30 p.m., 14-year old Jennifer Ertman
and 16 year old Elizabeth Pena ran across the gang initiation as
they were returning home. The girls were raped and strangled.
O’Brien and other gang members later boasted that
they gang raped both girls. Autopsies revealed that both girls died
of trauma to the neck consistent with strangulation.
The girls’ bodies were found on June 28, 1993.
They were close to each other, and were both in an advanced state of
decomposition.
O’Brien was arrested on June 29, 1993, as were
Peter Cantu, Efrain Perez, Jose and Vernancio Medellin, and Raul
Villareal.
When police knocked on O’Brien’s door and
announced their presence, O’Brien attempted to run out the back door.
He was arrested by officers waiting in back.
After he was advised of his rights and informed
he was under arrest for capital murder, O’Brien told police that he
gave his belt to Joe Medellin, who used it to strangle one of the
girls.
At Medellin’s instruction, O’Brien grabbed one
end of the belt and helped strangle the victim. They pulled so hard
that one end of the belt broke off. O’Brien consented to a search of
his apartment, and the police found the belt.
PROCEDURAL HISTORY
February 4, 1994 -- O’Brien was indicted by a
Harris County grand jury for the capital murder of Jennifer Ertman.
April 7, 1994 -- O’Brien was found guilty by a
jury of capital murder.
April 9, 1994 -- Following a separate punishment
hearing, O’Brien was sentenced to death.
May 15, 1996 -- The Texas Court of Criminal
Appeals affirmed O’Brien’s conviction and sentence.
January 21, 1997 -- The U.S. Supreme Court denied
O’Brien’s petition for writ of certiorari.
August 23, 2001 -- O’Brien filed an application
for writ of habeas corpus in the state trial court.
February 6, 2002 -- The Court of Criminal Appeals
denied O’Brien’s application for writ of habeas corpus.
May 16, 2002 -- O’Brien filed a federal petition
for writ of habeas corpus in a U.S. district court.
January 14, 2005 -- The federal district court
dismissed O’Brien’s federal habeas petition and denied a certificate
of appealibility.
May 9, 2005 -- O’Brien requested permission to
appeal from the 5th U.S. Circuit Court of Appeals.
December 27, 2005 -- The Fifth Circuit Court
denied O’Brien’ request to appeal the district court’s denial of his
federal habeas petition.
March 25, 2006 -- O’Brien petitioned the U.S.
Supreme Court for a writ of certiorari. This petition is currently
pending.
April 26, 2006 -- O’Brien asked the Supreme Court
for a stay of execution.
June 5, 2006 -- The Supreme Court declined to
hear the case.
PRIOR CRIMINAL HISTORY
O’Brien had three prior arrests before committing
this capital murder. He was arrested for shoplifting a pellet pistol,
simple assault, and for stealing a car.
Girls' killer apologizes before execution
By
Michael Graczyk -
Houston Chronicle
Associated Press - July 11, 2006
HUNTSVILLE — Condemned murderer Derrick Sean
O'Brien apologized profusely before being executed this evening for
the torture, rape and strangling of two teenage Houston girls 13
years ago.
"I am sorry. I have always been sorry," O'Brien
said, holding his head up and looking straight at relatives of his
victims. "It is the worst mistake that I ever made in my whole life.
Not because I am here but because of what I did and I hurt a lot of
people, you and my family." He repeated again and again that he was
sorry.
O'Brien was pronounced dead at 6:19 p.m., seven
minutes after the lethal drugs began.
O'Brien was one of six members of a fledgling
street gang arrested in the slayings of Elizabeth Pena, 16, and
Jennifer Ertman, 14. Their bodies were found four days after they
failed to return from a friend's house.
The girls had been attacked as they took a
shortcut along some railroad tracks and stumbled on the group
drinking beer after initiating a new gang member.
Ertman's father and Pena's parents were among the
witnesses to the lethal injection, the 14th this year in Texas, the
nation's most active death penalty state. "It's been a long time
coming," Adolfo Pena, who lost his daughter in the attack, said
after watching the execution. "I wish we could have done all six at
once. "We finally, finally got some justice for Elizabeth and
Jennifer. You don't know how that feels to have some justice for my
daughter, for the stuff that she had to go through."
Pena, who wore a T-shirt with the photos of the
two slain girls beneath his shirt, said O'Brien's apology from the
death chamber gurney "didn't mean much to me." "It doesn't bring my
daughter back, but it's just a little bit late for that, don't you
think?" he said.
O'Brien, 31, was spared a trip to the death house
May 15 when his lawyers won a reprieve from the Texas Court of
Criminal Appeals the day before he was to be executed. Days later,
however, the same court lifted its order, clearing the way for
today's execution.
The prisoner's attorneys asked the U.S. Supreme
Court to stop the execution so justices could review his case.
They argued there's no legal procedure allowing
condemned Texas prisoners to raise challenges that drugs used in
lethal injections "will cause O'Brien to endure unnecessary,
excessive, and excruciating pain during the course of this execution."
About 20 minutes before O'Brien was scheduled to
die, the high court rejected his appeal.
Evidence showed the girls were gang raped for
more than an hour, then were kicked and beaten before being
strangled. A red nylon belt was pulled so tight around Jennifer
Ertman's neck that the belt snapped. When the bodies were discovered,
they were decomposing and mummifying in 100-degree heat.
A smiling O'Brien, then 18, was
seen on a videotape of the crowd that gathered as investigators
worked the scene of the grisly discovery. A tip from the brother of
one of the gang members led police to the arrests in the killings
that shocked even crime-hardened Houston.
"I'm no fan of the death penalty, but that guy
brought it on himself," said Steve Baldassano, who prosecuted
O'Brien. "It was horrible."
O'Brien, who confessed to police, was one of six
gang members convicted in the case and the first to be executed.
The ninth-grade dropout, who had previous arrests
for shoplifting a pistol, assault and auto theft, also was a suspect
in a murder six months before the girls were killed but never was
charged.
Evidence put him at a Houston park where the body
of Patricia Lopez, 27, was found. A beer can carrying his
fingerprints was found under the remains of the woman. She had been
raped, eviscerated and had her throat cut.
Two of the gang members, Efrain Perez and Raul
Villarreal, had their death sentences commuted to life in prison
when the Supreme Court last year barred executions for those who
were 17 at the time of their crimes.
Peter Cantu, described by authorities as
ringleader of the gang, remains on death row without an execution
date.
Jose Medellin, who was condemned and who O'Brien
said was at one end of the belt being pulled around Ertman's neck as
he yanked on the other, had his case returned to the state courts
under an order from President Bush. Medellin is among some 50
Mexican-born offenders who argue that under international law they
should have been allowed assistance from the Mexican Consulate
before trial.
A sixth person convicted, Medellin's brother,
Vernancio, was 14 at the time and received a 40-year prison term.
Texas executes man for rape, murder of two teens
Reuters News
July 11, 2006
HUNTSVILLE, Texas (Reuters) - A Texas man was put
to death by lethal injection on Tuesday for his part in the 1993
gang-rape and murder of two Houston teenagers.
Derrick O'Brien, 31, was condemned for raping and
killing Jennifer Ertman, 14, and Elizabeth Pena, 16, in a Houston
park on June 24, 1993.
Prosecutors said O'Brien was one of six gang
members who raped Ertman and Pena for over an hour in a Houston park
before strangling them.
The girls were taking a shortcut home through the
park when they were attacked. O'Brien told police he helped strangle
Ertman with his belt, which snapped from the strain put on it during
the murder.
O'Brien's execution was delayed in May after his
lawyers claimed lethal injection violates the U.S. Constitution's
ban on cruel or unusual punishment. The claim was rejected by a
Texas appeals court.
While strapped to a gurney in the death chamber
on Tuesday, O'Brien apologized to Ertman's and Pena's families. "I
am sorry," he said. "I have always been sorry. It is the worst
mistake that I ever made in my whole life. Not because I am here,
but because of what I did, and I hurt a lot of people -- you and my
family. I am sorry. I have always been sorry."
O'Brien was the 14th person executed in Texas
this year and the 369th put to death since the state resumed capital
punishment in 1982, six years after the U.S. Supreme Court lifted a
national death penalty ban. Both totals lead the nation.
O'Brien did not request a final meal.
ProDeathPenalty.com
Jennifer Ertman and Elizabeth Pena were 14 and 16
years old, respectively. They were friends who attended the same
high school in Houston, Texas, Waltrip High School.
On June 24, 1993, the girls spent the day
together and then died together. They were last seen by friends
about 11:15 at night, when they left a friend's apartment to head
home, to beat summer curfew at 11:30.
They knew they would be late if they took the
normal path home, down W. 34th Street to T.C. Jester, both busy
streets.
They also knew they would have to pass a sexually-oriented
business on that route and so decided to take a well-known shortcut
down a railroad track and through a city park to Elizabeth's
neighborhood.
The next morning, the girls parents began to
frantically look for them, paging them on their pagers, calling
their friends to see if they knew where they were, to no avail.
The families filed missing persons reports with
the Houston Police Department and continued to look for the girls on
their own.
The Ertmans and Penas gathered friends and
neighbors to help them pass out a huge stack of fliers with the
girls' pictures all over the Houston area, even giving them to
newspaper vendors on the roadside.
Four days after the girls disappeared, a person
identifying himself as 'Gonzalez' called the Crimestoppers Tips
number. He told the call taker that the missing girls' bodies could
be found near T.C. Jester Park at White Oak bayou.
The police were sent to the scene and searched
the park without finding anything. The police helicopter was flying
over the park and this apparently prompted Mr. 'Gonzalez' to make a
911 call, directing the search to move to the other side of the
bayou.
When the police followed this suggestion, they
found the badly decaying bodies of Jenny and Elizabeth. Jennifer
Ertman's dad, Randy Ertman, was about to give an interview regarding
the missing girls to a local television reporter when the call came
over a cameraman's police scanner that two bodies had been found.
Randy commandeered the news van and went to the
scene that was now bustling with police activity. Randy Ertman
appeared on the local news that evening, screaming at the police
officers who were struggling to hold him back, "Does she have blond
hair?Does she have blond hair?!!?"
Fortunately, they did manage to keep Randy from
entering the woods and seeing his daughter's brutalized body and
that of her friend Elizabeth.
The bodies were very badly decomposed, even for
four days in Houston's brutal summer heat and humidity, particularly
in the head, neck and genital areas.
The medical examiner later testified that this is
how she could be sure as to the horrible brutality of the rapes,
beatings and murders.
The break in solving the case came from, of
course, the 911 call. It was traced to the home of the brother of
one of the men later sentenced to death for these murders.
When the police questioned 'Gonzalez', he said
that he had made the original call at his 16 year-old wife's urging.
She felt sorry for the families and wanted them to be able to put
their daughters' bodies to rest.
'Gonzalez' said that his brother was one of the
six people involved in killing the girls, and gave police the names
of all but one, the new recruit, whom he did not know.
His knowledge of the crimes came from the killers
themselves, most of whom came to his home after the murders,
bragging and swapping the jewelry they had stolen from the girls.
While Jenny and Elizabeth were living the last
few hours of their lives, Peter Cantu, Efrain Perez, Derrick Sean
O'Brien, Joe Medellin and Joe's 14 year old brother were initiating
a new member, Raul Villareal, into their gang, known as the Black
and Whites.
Raul was an acquaintance of Efrain and was not
known to the other gang members. They had spent the evening drinking
beer and then "jumping in" Raul.
This means that the new member was required to
fight every member of the gang until he passed out and then he would
be accepted as a member.
Testimony showed that Raul lasted through three
of the members before briefly losing consciousness. The gang
continued drinking and 'shooting the breeze' for some time and then
decided to leave.
Two brothers who had been with them but testified
that they were not in the gang left first and passed Jenny and
Elizabeth, who were unknowingly walking towards their deaths.
When Peter Cantu saw Jenny and Elizabeth, he
thought it was a man and a woman and told the other gang members
that he wanted to jump him and beat him up. He was frustrated that
he had been the one who was unable to fight Raul.
The gang members ran and grabbed Elizabeth and
pulled her down the incline, off of the tracks. Testimony showed
that Jenny had gotten free and could have run away but returned to
Elizabeth when she cried out for Jenny to help her.
For the next hour or so, these beautiful,
innocent young girls were subjected to the most brutal gang rapes
that most of the investigating officers had ever encountered.
The confessions of the gang members that were
used at trial indicated that there was never less than 2 men on each
of the girls at any one time and that the girls were repeatedly
raped orally, anally and vaginally for the entire hour.
One of the gang members later said during the
brag session that by the time he got to one of the girls, "she was
loose and sloppy." One of the boys boasted of having 'virgin blood'
on him.
The 14-year-old juvenile later testified that he
had gone back and forth between his brother and Peter Cantu since
they were the only ones there that he really knew and kept urging
them to leave.
He said he was told repeatedly by Peter Cantu to
"get some". He raped Jennifer and was later sentenced to 40 years
for aggravated sexual assault, which was the maximum sentence for a
juvenile.
When the rapes finally ended, the horror was not
over. The gang members took Jenny and Elizabeth from the clearing
into a wooded area, leaving the juvenile behind, saying he was "too
little to watch".
Jenny was strangled with the belt of Sean O'Brien,
with two murderers pulling, one on each side, until the belt broke.
Part of the belt was left at the murder scene, the rest was found in
O'Brien's home. After the belt broke, the killers used her own
shoelaces to finish their job. Medellin later complained that "the
bitch wouldn't die" and that it would have been "easier with a gun".
Elizabeth was also strangled with her shoelaces,
after crying and begging the gang members not to kill them;
bargaining, offering to give them her phone number so they could get
together again.
The medical examiner testified that Elizabeth's
two front teeth were knocked out of her brutalized mouth before she
died and that two of Jennifer's ribs were broken after she had died.
Testimony showed that the girls' bodies were
kicked and their necks were stomped on after the strangulations in
order to "make sure that they were really dead."
The juvenile, Venancio Medellin, pled guilty to
his charge and his sentence was reviewed when he turned 18, at which
time he was sent to serve the remainder of the sentence in prison.
The five killers were tried for capital murder in
Harris County, Texas, convicted and sentenced to death.
UPDATE: The Texas Court of Criminal Appeals
issued a stay 27 hours before Sean O'Brien's scheduled execution in
order to consider his appeal regarding the constitutionality of
lethal injection.
Two days later, the same court reversed itself
and lifted the stay, however the death warrant had expired and the
process of setting a new execution date will begin again.
Derrick O'Brien, TX - July 11
Do Not Execute Derrick O'Brien!
Democracyinaction.org
Derrick Sean O’Brien was convicted of capital
murder and sentenced to death for the 1993 rape and murder of two
teenage girls, Jennifer Entman, 14, and Elizabeth Pena, 16, in
Houston.
On the night of June 24, Entman and Pena were
walking home from a friend’s house when O’Brien, along with five
others, attacked the two high school sophomores.
According to court documents, the attack was part
of a gang initiation. The bodies of the two girls remained
undiscovered until police received an anonymous tip from the brother
of one of O’Brien’s accomplices four days after the attack. O’Brien
was arrested at his home the following day.
O’Brien’s trial began on April 4, 1994 and he was
found guilty of capital murder only two days later. On April 9,
1994, O’Brien was sentenced to death.
Although there is no question as to O’Brien’s
guilt, there are circumstances surrounding the punishment phase of
O’Brien’s trial that do warrant closer consideration.
For one, O’Brien’s defense counsel presented only
one witness. In the punishment phase of a death penalty trial a jury
is asked to weigh mitigating factors, such as certain aspects of a
defendant’s character or background, including moral culpability, as
a basis for a sentence less than death.
The one witness brought to testify on O’Brien’s
behalf was a records custodian employed by the Harris County Jail
who testified that there were no disciplinary actions taken against
O’Brien during his time at the jail. O’Brien’s counsel also choose
not to call several witnesses to discuss O’Brien’s mental health.
These witnesses would have attested that O’Brien
experienced child abuse and that O’Brien was diagnosed with an
“anti-social disorder.”
The combination of the defense not calling the
above witnesses allowed O’Brien to argue in his appeal that counsel
was ineffective and that mitigating factors were not taken into
account.
The ability of the jury to
properly weigh mitigating factors against the potential sentence of
death is further called into question by the fact that the
prosecutor repeatedly told the jury that there must be a connection
between the mitigating evidence and the crime.
Contrary to the prosecutor’s statements otherwise,
the Supreme Court has set a “low threshold of mitigating
circumstances.” Therefore, both the fact that O’Brien was 18 at the
time of the crime, as well as evidence regarding his good behavior
while in jail, are relevant mitigating factors. Such comments were
made by the both during jury selection, as well as during the
prosecutor’s closing arguments. During closing arguments the
prosecutor stated:
Then you move on to [Special Issue] No. 3, then
you look at the Charge. And it tells you to ask yourself if there's
anything mitigating. And we talked about what does mitigating
mean.... What, if anything, is mitigating about him that you heard?
The only thing that I can possibly think of is that the guy's
learning disabled in arithmetic, he can't add... It doesn't take a
rocket scientist to figure out if you can't add that doesn't give
you the right to go out and kill ... other people. So there's not
anything at all that you heard from any witness that is mitigating.
Thus, the proper procedural instructions given to
the jury by the judge regarding mitigating evidence were negated by
the prosecutor’s comments.
In other words, it is likely that the jury,
believing the prosecutor’s statement that there must be a connection
between the mitigating evidence and the crime, did not properly
weigh the mitigating evidence that they were presented with and
ultimately decided upon a sentence that they would not have
otherwise.
In December of 2005 the U.S. Fifth Circuit Court
of Appeals denied O’Brien’s request for a certificate of
appealability despite the evidence presented in support of the
issues outlined above.
There is no way to say for sure that a different
jury, one that had been spared the prosecutor’s commentary, would
not have decided upon a different fate for O’Brien.
On May 15th of 2006, Derrick O’Brien was granted
a temporary stay of execution in response to a last minute writ of
habeas corpus.
O’Brien argued that the three chemical
combination used by Texas to carry out executions may "unnecessarily
create a risk that O’Brien will suffer excruciating excessive pain
during the administration of his lethal injection." In a similar
case in Florida, Clarence Hill was granted a stay of execution on
the same grounds.
Two days later on May 17th O’Brien’s stay of
execution was lifted. The main argument for lifting the stay was
that O’Brien brought forth no scientific or factual evidence showing
that the chemicals used in a lethal injection cause any pain.
Judge’s Holcomb and Price, in a dissenting
opinion, stated that they believed the stay of execution was
originally made to give the court time to rule on this appeal, but
that the decision to lift the stay was rushed.
Neither judge makes a statement about whether or
not the method of lethal injection in Texas violates the eighth
amendment; however they do express an interest in seeing the matter
resolved in an actual hearing where O’Brien would be able to present
such evidence.
Derrick Sean O’Brien should not be executed
without being able to present all of the above evidence in court,
including mitigating and scientific evidence.
Rapist/Murderer Scheduled to Die Tonight
The Houstonist
July 11, 2006
Derrick O'Brien, the former gang member who at
the age of 18 killed two young Houston girls, is scheduled to die
tonight after his reprieve, issued May 15th by the Texas Court of
Criminal Appeals, was recinded.
O Brian and several friends, members of a gang,
gang-raped and strangled Jennifer Ertman and her friend Elizabeth
Pena in 1993. The girls were killed after they took a shortcut home
one night and stumbled upon some teenagers drinking beer after
intiating a new gang member, says KHOU.
Fingerprint evidence, and a tip from a brother of
one of the gang members, led police to O'Brien, one of 6 gang
members convicted for the slaying. (He had also been a suspect in
another murder, though he was never charged).
Several of the convicted killers are on death row:
two others have had their death sentences commuted to life in prison
because they were only seventeen at the time of the crime. One of
the convicted killers is a major plaintiff in a suit that claims
Mexican nationals accused of crimes in Texas have been convicted
unlawfully because they were not alllowed access to help from the
Mexican Consulate.
O'Brien himself was one of the Texas inmates
claiming that lethal injection constitutes cruel and unusual
punishment. Though the claim led to a temporary stay of execution,
he has now exhausted his appeals and will likely be executed as
scheduled tonight, making him the first to die for this crime and
the fourteenth to be executed in Texas this year.
CCADP.org
Derrick O'Brien writes on the Abolition movement:
Sept. 2002 -
As you know, the current fight against the death
penalty is growing, but is it taking the right direction ? Lots of
people support the d/p, especially now with 9/11, but most are not
educated on the negatives of death row other than the innocence
issue and the execution of mentally retarded ending. To be blunt,
most Americans are concerned with money more than anything else;
capitalism rules here. I believe that if the general public knew
that millions are spent (per inmate) on the death penalty from trial
to executions, there would be an outcry.
If it can be shown that these monies could be
better spent on the betterment of communities and comprehensive
programs that head off crime, I believe many people would come
around. The wrongness of the d/p is being shown solely from a
moralistic standpoint but is this effective here where morals have
deteriorated to a large extent ? We are geared up to go and raze
Iraq to the ground (again) because of one man. The public supports
it but in doing so also supports the killing of hundreds of people
who have absolutely no control over there. If the majority of
Americans don't really care about the killing of hundreds of people
then how can they care for us on death row ?
No, morals aren't the way to approach the
struggle, financially is. If we had people out saying that they
don't want millions of their tax dollars going for a useless system
every year. I'll bet the politicians'll reach then. We have to show
that its cheaper and more effective to house an offender for life
than to execute. The extra money can be used for better law
enforcement, better educational programs, community centers, etc. On
average, about 4 million dollars is spent per inmate on death row
from trial to execution; there are close to 500 inmates here in
Texas alone. Nationwide this is a lot of money spent for no other
reason than retribution. There are a whole array of beneficial
programs that can be actualized with the money used for capital
defense and prosecution; lets say children's healthcare for instance.
I wonder how many children could be saved or kept
living, who would otherwise die, with the monies, states use to kill
men and women on death row. Isn't it a worthwhile thing to explore ?
I believe that it is. How many much needed operations and treatments
could be given that are now too costly by some ? How many people who
need specialized treatment would receive it? It is a shame that it
comes down to money versus morals and what's right, but with revenge
and vengeance being so much a staple of American society now, the
struggle has to take on a new dimension.
Education is the key, and if we can show how many
people can benefit from the abolition of the death penalty I believe
many would support it although not for the right reasons. Imagine
how a person whose wife, child, parent is sick would feel to know
that with just half of what their state spends on death row inmate
they (or he) could get the very best of treatment for a loved one.
This could be a reality if people would just see
with their hearts. On a deeper level though, it is incumbent that we
all develop a genuine respect for all forms of life if systems like
the death penalty are to become obsolete. As it stands, our nations
youth (and future) are losing this inherent humanity because of our
own lack of it. It all comes down to us, the adults, to show the way
to a world where a persons sole wish is for the happiness of the
next.
We bear the responsibility of showing our
children how to be human and if we can't then our world will
continue to suffer for it. Life is a miracle and therefore precious
each time one is taken before its time , the world loses something
special. All of this may sound strange coming from me, a death row
inmate, but if I never strove to change even knowing my wrongs, I
couldn't call myself human. ....
Derrick Sean O'Brien 999131
3872 FM 350 South
Livingston Texas 77351 USA
Derrick's Original Pen Pal Request to the CCADP:
Hello my name is Sean, and I'm writing...because
I'm very interested in receiving a friend. I look forward to you
hearing from you soon, and till I do I remain sincerely yours,
UrbanGrounds.com
On June 24, 1993 while walking home, Elizabeth
Pena (16) and Jennifer Ertman (15) were kidnapped, brutally beat and
raped, and then strangeled to death by a gang known as the Black and
Whites.
Peter Cantu, Raul Villareal, Efrain Perez, Jose
Medellin, and Sean Derrick O’Brien were all convicted and sentenced
to die for their participation in these two little girls’ deaths.
Tomorrow —nearly 13 years after the crimes were
committed — Sean Derrick O’Brien will be the first person involved
to be executed by the State of Texas. 13 years to carry out the
sentence of a man who confessed to using his own belt to strangle
one of the girls to death after he raped her. Sickening. He should
have been drug behind the courthouse and shot in the head within
second of uttering that confession.
NOTE — Villareal and Perez have since had their
sentences commuted to life after the Supreme Court of the United
States ruled that the execution of killers who were under 18 when
they committed their crimes was no longer constitutional. Perez and
Villareal were both 17 at the time they killed these two little
girls.
Another One of Jennifer Ertman’s Killers Trying
to Avoid the Death Penalty
On March 1, the Supreme Court of the United
States (SCOTUS) ruled that the Constitution forbids the execution of
killers who were under 18 when they committed their crimes.
Unbelievably, Monsieurs Kennedy, Breyer, Souter,
and Stevens, and Madame Bader Ginsburg based their decisions on
International opinion. With that ruling, pieces-of-shit like Efrain
Perez and Raul Villarreal will not face the death sentence that they
deserve.
You remember these two fine young men, right?
They were responsible for the deaths of Jennifer Ertman (14) and
Elizabeth Pena (16). Each girl was repeatedly raped by Villarreal
and his fellow gang members, and then strangled to death. Villarreal
later bragged that he stepped on the neck of Jennifer Ertman in an
effort to strangle her because the “bitch wouldn’t die” after being
strangled with a belt.
Well, today, one of Villareal’s ‘fellow gang
members’—Jose Medellin—who helped to rape and murder those two young
girls, is looking to have his death sentence commuted, too. Not
because of his innocence. Nobody, not even Medellin, claims he’s
innocent of the crimes he’s sitting on death row for. Medellin’s
biggest mistake was not being under the age of 18 when he committed
rape and murder. But now he’s also appealing to International law to
avoid the death penalty:
WASHINGTON — The Supreme Court, confronting a
case that tests the effect of international law in domestic death
penalty cases, showed little interest Monday in deciding whether the
U.S. government can deny foreign suspects access to legal help from
their consulates.
Jose Medellin came to our country illegally and
raped and murdered our children. I don’t give a damn what country
he’s from—he should be put to death by our country in accordance
with our laws…International law be damned.
Killer's death date up again
Execution set for
Tuesday in '93 rape, slaying of 2 teens at park
By Allan Turner and Rosanna Ruiz -
Houston Chronicle
July 10, 2006
It wasn't news to anyone that Derrick Sean
O'Brien was bad news. He fought often at school, once breaking a
kid's jaw. Lots of times he was drunk. Sometimes he carried a knife.
He was full of bluster about his prowess as a car thief.
But it was in 1993 that O'Brien hit rock bottom.
In January of that year, O'Brien later admitted, he murdered and
tried to rape Patricia Lopez, a 27-year-old mother of two young
children, in Melrose Park.
And on June 24, 1993, he took part in the brutal
gang rapes and murders of Jennifer Ertman, 14, and Elizabeth Peña,
16, after the girls stumbled into a drunken midnight gang initiation
rite in T.C. Jester Park. Tuesday, O'Brien, 31, is scheduled to be
executed for his role in that crime.
The death date is the killer's second this year.
In May, O'Brien received a brief stay as judges considered his claim
that death by injection is cruel and unusual punishment.
O'Brien's attorney, Catherine Burnett, an
associate dean at the South Texas College of Law, filed a new appeal
on his behalf with the U.S. Supreme Court. "I hope the son of a
bitch rots in hell," Ertman's father, Randy, said last week. "He
deserves it." "It doesn't make me happy," Peña's father, Adolfo,
said in a recent interview. "But this is the punishment he was given,
and it's justifiable. ... I kind of feel numb in a way, knowing that
I've been waiting so long for this day to come. ... I've been
looking forward to this for a long time."
The murders of Ertman and Peña rocked the city in
a way that few deaths could. The Waltrip High School students,
balanced at that awkward point between childhood and young womanhood,
spent the hours before their deaths at a poolside party at a
northwest Houston apartment complex.
As their midnight curfew approached, they debated
the best way to Peña's home. Their normal route would have taken
half an hour, but they chose a well-known shortcut down the railroad
tracks through the park.
Minutes after the girls left the party, they were
intercepted by O'Brien and five other members of the loose-knit gang,
who had just concluded a track-side initiation rite. The girls were
pulled from the tracks, raped and strangled.
Court testimony revealed that O'Brien grunted
with exertion as he tightened a belt around Ertman's neck. Then,
after stomping on the girls' throats, the killers divided the
victims' belongings.
O'Brien was at the crime scene four days later
when police, alerted to the bodies' location by the brother of a
gang member, began their investigation. Unobtrusively, the killer
stood among spectators who gathered in the park. Ertman's father
also was in the crowd. Days later, O'Brien was arrested. He will be
the first of the convicted gang members to be put to death.
Others facing execution are Peter Anthony Cantu,
described as the gang's leader, and Jose Ernesto Medellin, both 31.
Death sentences for two others — Efrain Perez and Raul Omar
Villarreal — were commuted to life in prison when the U.S. Supreme
Court ruled that those who were minors when they committed murders
could not be executed.
The sixth gang member, Venacio Medellin, who was
14 at the time of the murders and testified against the others,
received a 40-year sentence.
"Don't say time makes things better," Peña's
father said. "It never goes away. It's never going to go away. The
hurt is still the same. I still find myself crying just out of the
blue."
The Murders of Jennifer Ertman and Elizabeth Pena
MurderVictims.com
What happened...
Jennifer Ertman and Elizabeth Pena were 14 and 16
years old, respectively. They were friends who attended the same
high school in Houston, Texas, Waltrip High School. On June 24,
1993, the girls spent the day together....and then died together.
They were last seen by friends about 11:15 at
night, when they left a friend's apartment to head home, to beat
summer curfew at 11:30. They knew they would be late if they took
the normal path home, down W. 34th Street to T.C. Jester, both busy
streets.
They also knew they would have to pass a sexually-oriented
business on that route and so decided to take a well-known shortcut
down a railroad track and through a city park to Elizabeth's
neighborhood.
The next morning, the girls parents began to
frantically look for them, paging them on their pagers, calling
their friends to see if they knew where they were, to no avail.
The families filed missing persons reports with
the Houston Police Department and continued to look for the girls on
their own. The Ertmans and Penas gathered friends and neighbors to
help them pass out a huge stack of fliers with the girls' pictures
all over the Houston area, even giving them to newspaper vendors on
the roadside.
Four days after the girls disappeared, a person
identifying himself as 'Gonzalez' called the Crimestoppers Tips
number. He told the call taker that the missing girls' bodies could
be found near T.C. Jester Park at White Oak bayou.
The police were sent to the scene and searched
the park without finding anything. The police helicopter was flying
over the park and this apparently prompted Mr. 'Gonzalez' to make a
911 call, directing the search to move to the other side of the
bayou. When the police followed this suggestion, they found the
badly decaying bodies of Jenny and Elizabeth.
Jennifer Ertman's dad, Randy Ertman, was about to
give an interview regarding the missing girls to a local television
reporter when the call came over a cameraman's police scanner that
two bodies had been found.
Randy commandeered the news van and went to the
scene that was now bustling with police activity. My first knowledge
of the death of Jennifer was seeing Randy, on the news that evening,
screaming at the police officers who were struggling to hold him
back, "Does she have blond hair?? DOES SHE HAVE BLOND HAIR?!!?"
Fortunately, they did manage to keep Randy from
entering the woods and seeing his daughter's brutalized body and
that of her friend Elizabeth, but they were unable to escape that
fate themselves. I saw hardened, lifelong cops get tears in their
eyes when talking about the scene more than a year later.
The bodies were very badly decomposed, even for
four days in Houston's brutal summer heat and humidity, particularly
in the head, neck and genital areas. The medical examiner later
testified that this is how she could be sure as to the horrible
brutality of the rapes, beatings and murders.
The break in solving the case came from, of
course, the 911 call. It was traced to the home of the brother of
one of the men later sentenced to death for these murders.
When the police questioned 'Gonzalez', he said
that he had made the original call at his 16 year-old wife's urging.
She felt sorry for the families and wanted them to be able to put
their daughters' bodies to rest. 'Gonzalez' said that his brother
was one of the six people involved in killing the girls, and gave
police the names of all but one, the new recruit, whom he did not
know.
His knowledge of the crimes came from the killers
themselves, most of whom came to his home after the murders,
bragging and swapping the jewelry they had stolen from the girls.
While Jenny and Elizabeth were living the last
few hours of their lives, Peter Cantu, Efrain Perez, Derrick Sean
O'Brien, Joe Medellin and Joe's 14 year old brother were initiating
a new member, Raul Villareal, into their gang, known as the Black
and Whites. Raul was an acquaintance of Efrain and was not known to
the other gang members.
They had spent the evening drinking beer and then
"jumping in" Raul. This means that the new member was required to
fight every member of the gang until he passed out and then he would
be accepted as a member. Testimony showed that Raul lasted through
three of the members before briefly losing consciousness.
The gang continued drinking and 'shooting the
breeze' for some time and then decided to leave. Two brothers who
had been with them but testified that they were not in the gang left
first and passed Jenny and Elizabeth, who were unknowingly walking
towards their deaths.
When Peter Cantu saw Jenny and Elizabeth, he
thought it was a man and a woman and told the other gang members
that he wanted to jump him and beat him up. He was frustrated that
he had been the one who was unable to fight Raul.
The gang members ran and grabbed Elizabeth and
pulled her down the incline, off of the tracks. Testimony showed
that Jenny had gotten free and could have run away but returned to
Elizabeth when she cried out for Jenny to help her.
For the next hour or so, these beautiful,
innocent young girls were subjected to the most brutal gang rapes
that most of the investigating officers had ever encountered. The
confessions of the gang members that were used at trial indicated
that there was never less than 2 men on each of the girls at any one
time and that the girls were repeatedly raped orally, anally and
vaginally for the entire hour.
One of the gang members later said during the
brag session that by the time he got to one of the girls, "she was
loose and sloppy." One of the boys boasted of having 'virgin blood'
on him.
The 14-year-old juvenile later testified that he
had gone back and forth between his brother and Peter Cantu since
they were the only ones there that he really knew and kept urging
them to leave. He said he was told repeatedly by Peter Cantu to "get
some". He raped Jennifer and was later sentenced to 40 years for
aggravated sexual assault, which was the maximum sentence for a
juvenile.
When the rapes finally ended, the horror was not
over. The gang members took Jenny and Elizabeth from the clearing
into a wooded area, leaving the juvenile behind, saying he was "too
little to watch".
Jenny was strangled with the belt
of Sean O'Brien, with two murderers pulling, one on each side, until
the belt broke. Part of the belt was left at the murder scene, the
rest was found in O'Brien's home. After the belt broke, the killers
used her own shoelaces to finish their job. Medellin later
complained that "the bitch wouldn't die" and that it would have been
"easier with a gun".
Elizabeth was also strangled with her shoelaces,
after crying and begging the gang members not to kill them;
bargaining, offering to give them her phone number so they could get
together again.
The medical examiner testified that Elizabeth's
two front teeth were knocked out of her brutalized mouth before she
died and that two of Jennifer's ribs were broken after she had died.
Testimony showed that the girls' bodies were
kicked and their necks were stomped on after the strangulations in
order to "make sure that they were really dead."
The juvenile pled guilty to his charge and his
sentence will be reviewed when he turns 18, at which time he could
be released. The other five were tried for capital murder in Harris
County, Texas, convicted and sentenced to death. I attended all five
trials with the Ertmans and know too well the awful things that they
and the Penas had to hear and see in the course of seeing Justice
served for their girls.
Two VERY important things in the criminal justice
system have changed as a result of these murders. After the trial of
Peter Cantu, Judge Bill Harmon allowed the family members to address
the convicted. This had not previously been done in Texas courts and
now is done as a matter of routine.
The other change came from the Texas Department
of Corrections which instituted a new policy allowing victims'
families the choice and right to view the execution of their
perpetrators. I had an ever-swaying opinion on the death penalty
before this happened to people I know, before I watched the justice
system at work firsthand. I have now come to believe that there are
some crimes so heinous, so unconscionable that there can be no other
appropriate punishment than the death penalty.
This is why I joined Justice For All. Charlene
Hall
Update - 1996
Vinnie Medellin was sentenced at age 14 to forty
years in the Texas Department of Corrections for the crime of
aggravated sexual assault upon Jennifer Ertman, to which he pled
guilty.
As a juvenile, he was remanded to the custody of
the Texas Youth Commission where he would remain until age eighteen.
He testified at all of the other trials except for that of his
brother, Jose Medellin. He refused to answer any questions at his
brother's trial and was held in contempt of court and sentenced to
six months in county jail, to be served at the end of his current
sentence.
On September 26, 1996, after three years in the
custody of the TYC, a hearing was held to determine the future of
the juvenile. Three outcomes were possible; he could have been
released on parole, a possibility which was never even discussed; he
could have been returned to TYC custody until he reached the age of
21 at which time another hearing would have been held; or he could
have been sent to TDC to serve the remainder of his sentence as an
adult.
The recommendation of TYC was that he continue
treatment at TYC until age 21. He was said to be an excellent inmate
and did not have behavior problems and participated in all required
therapies. On the other hand, his counselors reported that he still
seemed to show no remorse for his part in the crimes and also did
not take responsibility for his part.
The courtroom was filled with supporters of the
girls' families, most of whom did not know them before the murders
and who have become friends through Justice For All or Parents of
Murdered Children. There was testimony about the details of the
crime from a detective who was present at the murder scene and
participated in the investigation and arrests.
A therapist from TYC testified as to Vinnie's
stay at TYC and the reports of various counselors and therapists.
Vinnie's father testified as to his good behavior before this
incident.
Randy Ertman took the witness stand to tell the
court about his daughter, Jennifer. When asked what Jenny's hobbies
were, he elicited bittersweet smiles in the courtroom when he
responded, "Shopping!" Randy told the judge that he was living
through the worst possible thing that could happen to a family and
implored the judge to send Vinnie to TDC and to not make the
families repeat this process in three years.
Vinnie took the stand and was asked about his
past behavior, his grades at school and how he happened to be with
his brother on this night. He read a letter that he had written,
telling the parents of the victims that he was sorry for their
losses and warning other teenagers away from gangs, saying that he
had gone with this gang for one hour and had ruined his life forever.
Judge Pat Shelton did not take a recess to ponder
his decision. He said that he agreed with Mr. Ertman, that this is
the nightmare of nightmares for a parent. He said that he also
agreed with Vinnie Medellin that gangs were destructive but that "you
have to mean what you say when you are walking out the front door of
your house, not just when you are walking in the door of the
courtroom."
He also said "I'm not sure that your future
parole officer has even been BORN yet and I'm not sure that you
deserve for him to have even been born yet." He rejected the report
from the TYC as "psycho-babble" and transferred custody of Venancio
Medellin to the Texas Department of Corrections.
Charlene Hall
Update
I just wanted to let visitors know what is going
on with the killers' appeals. Two of the murderers had an execution
date set for June 2004, on and the day after the 11th anniversary of
the murders. The two were Efrain Perez and Raul Villarreal.
They both received a stay because of an appeal
that was to be heard before the US Supreme Court regarding a case
from Missouri that challenged the execution of any murderer who was
under the age of 18 at the time of the crime. Both of these killers
were not yet 18 when they brutally attacked and killed the girls.
Villarreal turned 18 in three months, and Perez turned 18 five
months after the murders.
The arguments in this case were heard in the fall
of 2004 and the decision was handed down a few months later; no more
death penalties for "juvenile" murderers. This will result in these
two killers, plus dozens more across the country, being removed from
death row and given life sentences instead.
In this case, it is life without the possibility
of parole for 35 years because that was the alternative to a death
sentence in a capital case at the time of the murders. They will
certainly never be released from prison, but they should have been
executed.
The only consolation is that they will no longer
have the protection they now have on death row - they will be in the
general population of the prison system and most regular prisoners
do not like people who rape and murder children. They might have
gotten a reprieve but it may be much worse in the end, a true case
of be careful what you wish for...
Additionally, a third killer out of the five who
were put on death row for this crime had an appeal pending before
the US Supreme Court. In this instance, Joe Medellin claims that he
should get a new trial because he is a Mexican national and should
have been allowed to contact the Mexican consulate for legal
assistance. However, he had lived in the US since he was six years
old and had gone to elementary, middle and high school here. The
Supreme Court heard arguments in the case in spring of 2005 and sent
the case back to the state court for a hearing.
Killer's death date up again
Execution set
for Tuesday in '93 rape, slaying of 2 teens at park
07/10/2006
It wasn't news to anyone that Derrick Sean
O'Brien was bad news. He fought often at school, once breaking a
kid's jaw. Lots of times he was drunk. Sometimes he carried a knife.
He was full of bluster about his prowess as a car thief. But it was
in 1993 that O'Brien hit rock bottom. In January of that year,
O'Brien later admitted, he murdered and tried to rape Patricia Lopez,
a 27-year-old mother of two young children, in Melrose Park. And on
June 24, 1993, he took part in the brutal gang rapes and murders of
Jennifer Ertman, 14, and Elizabeth Peña, 16, after the girls
stumbled into a drunken midnight gang initiation rite in T.C. Jester
Park. Tuesday, O'Brien, 31, is scheduled to be executed for his role
in that crime.
The death date is the killer's second this year.
In May, O'Brien received a brief stay as judges considered his claim
that death by injection is cruel and unusual punishment. O'Brien's
attorney, Catherine Burnett, an associate dean at the South Texas
College of Law, filed a new appeal on his behalf with the U.S.
Supreme Court. "I hope the son of a bitch rots in hell," Ertman's
father, Randy, said last week. "He deserves it." "It doesn't make me
happy," Peña's father, Adolfo, said in a recent interview. "But this
is the punishment he was given, and it's justifiable. ... I kind of
feel numb in a way, knowing that I've been waiting so long for this
day to come. ... I've been looking forward to this for a long time."
The murders of Ertman and Peña rocked the city in
a way that few deaths could. The Waltrip High School students,
balanced at that awkward point between childhood and young womanhood,
spent the hours before their deaths at a poolside party at a
northwest Houston apartment complex. As their midnight curfew
approached, they debated the best way to Peña's home. Their normal
route would have taken half an hour, but they chose a well-known
shortcut down the railroad tracks through the park. Minutes after
the girls left the party, they were intercepted by O'Brien and five
other members of the loose-knit gang, who had just concluded a track-side
initiation rite. The girls were pulled from the tracks, raped and
strangled. Court testimony revealed that O'Brien grunted with
exertion as he tightened a belt around Ertman's neck. Then, after
stomping on the girls' throats, the killers divided the victims'
belongings.
O'Brien was at the crime scene four days later
when police, alerted to the bodies' location by the brother of a
gang member, began their investigation. Unobtrusively, the killer
stood among spectators who gathered in the park. Ertman's father
also was in the crowd. Days later, O'Brien was arrested. He will be
the first of the convicted gang members to be put to death. Others
facing execution are Peter Anthony Cantu, described as the gang's
leader, and Jose Ernesto Medellin, both 31. Death sentences for two
others - Efrain Perez and Raul Omar Villarreal - were commuted to
life in prison when the U.S. Supreme Court ruled that those who were
minors when they committed murders could not be executed. The sixth
gang member, Venacio Medellin, who was 14 at the time of the murders
and testified against the others, received a 40-year sentence.
"Don't say time makes things better," Peña's
father said. "It never goes away. It's never going to go away. The
hurt is still the same. I still find myself crying just out of the
blue."
High court axes foreigners' plea
Denial of
suspects' claims of consular rights violations could affect Texas
case
06/29/2006
In a ruling that could have implications for a
Houston death row case, the U.S. Supreme Court on Wednesday ruled
against foreign suspects who want to suppress statements they gave
to police during interrogations when they were not informed of their
right to contact consulate officials from their home countries. The
court ruled 6-3 that Mexican Moises Sanchez-Llamas' and Honduran
Mario Bustillo's rights under the Vienna Convention were not
violated because the treaty's consulate-notification provision does
not apply to searches or interrogations.
Those cases originated in Oregon and Virginia,
respectively. But the court's ruling could affect a Texas death-penalty
case as well. Mexican national Jose Ernesto Medellin raised the same
issue of Vienna Convention violations in his appeals. Medellin was
one of six defendants convicted in the 1993 rape and murder of
Jennifer Ertman, 14, and Elizabeth Peña, 16, in a northwest Houston
park. "The court could have used Jose's case a long time ago to hand
down the same ruling they handed down today," Medellin's attorney,
Michael B. Charlton, said from his office in El Prado, N.M. "That
pretty much ends Vienna Convention claims on confession claims but
not on the other issues," he added. Medellin's case is under review
by the Texas Court of Criminal Appeals after President Bush's edict
last year for courts in Texas and other states to review his and 50
others involving foreign nationals who raised consular violation
claims. But the court's decision does not relate to Bush's order.
In the majority opinion, Chief Justice John
Roberts specified that Article 36 of the Vienna Convention "secures
only a right of foreign nationals to have their consulate "informed"
of their arrest or detention - not to have their consulate intervene,
or to have law enforcement authorities cease their investigation
pending any such notice or intervention." Under the convention,
ratified by the United States in 1969, when a national of one
country is detained by authorities in another country, authorities
must notify the consular offices of the foreigner's home country
when requested.
Roberts also wrote that a detained foreign national,
"like everyone else in our country, enjoys under our system the
protections of the Due Process Clause." He set aside, however, the
matter of whether police must advise defendants of their legal
options. Roberts was careful to stipulate that the ruling "in no way
disparages the importance of the Vienna Convention."
In a dissenting opinion, Justice Stephen Breyer
wrote that the decision runs afoul of the treaty's interpretation "not
only with the treaty's language and history, but also with the (International
Court of Justice's) interpretation of the same treaty provision."
Justices John Paul Stevens and David Souter joined in the dissent.
Breyer wrote that the ruling may weaken respect abroad for the
rights of foreign nationals and diminishes the treaty's proviso that
foreign nationals are deserving of fair treatment throughout the
world. A spokesman for the Texas Attorney General's Office, which is
handling the Court of Criminal Appeals case involving Medellin,
declined to comment about the potential impact of the court's ruling.
Ertman, Peña murderer set to die on July 11
Appeals court had granted, then reversed, a stay for teens' killer
05/25/2006
A man whose execution for the murders of two
teenage girls was blocked recently has been rescheduled for the
death chamber on July 11.
State District Judge Jan Krocker set the new
execution date for Derrick Sean O'Brien, one of six gang members
convicted in the 1993 slayings of Waltrip High School sophomores
Jennifer Ertman and Elizabeth Peña.
O'Brien, 31, originally was set to die on May 16,
but the Texas Court of Criminal Appeals granted a stay of execution.
The appeals court reversed course the next day, voting 5-4 to lift
the stay and dismiss O'Brien's claim that Texas' lethal-injection
procedure would violate his Eighth Amendment protection against
cruel and unusual punishment.
O'Brien would be the first of Ertman's and Peña's
killers to die. Four others also were condemned, but two later saw
their sentences commuted to life in prison after the U.S. Supreme
Court banned the execution of those who were juveniles when they
committed murder. Another gang member, who was 14 at the time of the
attack, received a 40-year sentence.
Ertman, 14, and Peña, 16, were walking home
through a wooded area in northwest Houston on the night of June 24,
1993, when they were gang-raped and tortured, then strangled and
stomped. Their bodies were found four days later.
Ertman, Peña killer again faces execution
Case reversed; another inmate who challenged lethal injection is put
to death
05/18/2006
In a reversal with life-or-death consequences,
the Texas Court of Criminal Appeals on Wednesday lifted the stay of
execution it granted earlier this week for Derrick Sean O'Brien of
Houston, who likely will be rescheduled for lethal injection for his
role in the notorious slaying of two teenage girls in 1993. "See,
we're back on the ride again, riding up and down," said Melissa
Peña, mother of one of the girls who was gang-raped, tortured and
strangled. "At least this is some good news. Maybe things will swing
back our way."
The appeals court also denied a claim by another
death row inmate, Jermaine Herron, who was then put to death in
Huntsville for killing a South Texas mother and son nine years ago.
Both men had argued that the state's use of a three-drug cocktail
would cause pain and therefore violate their constitutional
protection against cruel and unusual punishment.
After the court issued its stay for O'Brien on
Monday, his attorney and legal experts wondered whether the move
signaled the court's willingness to wait for the U.S. Supreme Court
to decide the issue over lethal injections raised in a Florida case
now before it. Herron's attorneys filed a similar claim late Tuesday.
In a 5-4 ruling Wednesday, the Texas court
rescinded the stay it had issued for O'Brien and dismissed his claim
that the state's lethal injection procedure would violate his Eighth
Amendment rights. At issue, in this and a growing number of claims
around the country, is whether an anesthetic administered as part of
the lethal-injection cocktail can fail, and whether the dying
inmate's agony is masked by a second drug that paralyzes the muscles.
The U.S. Supreme Court has so far
declined to address the constitutional question directly. But in a
Florida case argued last month, Hill v. McDonough, the justices
pondered a related procedural issue.
In an opinion issued Wednesday concurring with
the majority vote, Texas Court of Criminal Appeals Judge Cathy
Cochran explained that the court postponed O'Brien's execution to
look more closely at the procedural issues as well as the merits of
O'Brien's claim.
She wrote that O'Brien failed to do more than
speculate about the "problems or mistakes that "might" occur." She
wrote further that he has not provided evidence that the three-drug
protocol used during executions "is subject to any realistic risk of
unnecessary pain or suffering."
On Monday, Cochran had voted with
five other judges to grant O'Brien a postponement. In a dissenting
opinion Wednesday, Judge Tom Price wrote that the question before
the court was not whether O'Brien's appeal proved an Eighth
Amendment violation.
It was the court's job, he wrote, to
determine whether the appeal was appropriately filed as a state
habeas corpus petition. "It is manifestly unfair, in my estimation,
to fault the applicant for a failure of proof without first
affording him an opportunity to present evidence at a hearing or
through one of the other mechanisms that the statute allows for
presentation of evidence," Price wrote.
Rob Owen, a University of Texas law school
adjunct professor and death penalty expert, agreed with Price,
saying that the court skirted the procedural question. "It sounds
like Price is criticizing the court saying it has gone around that
question and gone straight to the underlying constitutional question,"
Owen said. "He's saying they're putting the cart before the horse."
Roe Wilson, a Harris County prosecutor, said she
will file a request for a state district court to reschedule
O'Brien's execution. She said she had not received the order
Wednesday afternoon and would not comment further. A new execution
date could be set within 30 days.
The reversal was the latest twist in a case that
has already seen two death sentences commuted to life. O'Brien and
four other gang members were sentenced to death for the June 24,
1993, deaths of Waltrip High School sophomores Jennifer Ertman, 14,
and Elizabeth Peña, 16. Another gang member, a juvenile, received a
40-year sentence.
Last year, two gang members were spared from the
death chamber after the Supreme Court ruled those who kill when they
are younger than 18 should not be put to death.
Randy Ertman, father of Jennifer Ertman, said he
is frustrated that the waiting process now starts anew. "It's just
nerve-racking," he said. "I don't know what the hell to think
anymore." Andy Kahan, Mayor Bill White's crime victims advocate,
said the court relented because the judges concluded "it would be
foolhardy to put a halt to justice." "It's a bleeping roller coaster
ride," Kahan said. "Everything that can possibly happen on these
cases has. ... The (families) have been belted around so much this
week by the system."
Murderer of Ertman, Peña given a stay of
execution
Families irate that his claim has put his death on hold
05/16/2006
An appeals court on Monday postponed the
execution of Derrick Sean O'Brien for the vicious gang rape and
murder of two teenage girls in Houston in 1993, enraging the victims'
parents and extending the debate over how condemned inmates are put
to death.
The Texas Court of Criminal Appeals issued the
order Monday afternoon, in response to an appeal filed last week
challenging the injection process as unconstitutionally cruel.
The ruling marked the third time that an
execution has been scheduled - then postponed - in connection with
the June 24, 1993, slayings of Jennifer Ertman, 14, and Elizabeth
Peña, 16, as the girls took a shortcut home through T.C. Jester Park.
"We were all ready for this to happen," fumed Adolph Peña, who had
planned to witness the execution tonight in Huntsville with his wife,
Melissa. "You talk about cruel? ... We've been waiting 13 years for
this son of a bitch to be executed. It's time for him to be executed."
O'Brien was "emotional" when he heard about the
court's ruling, said his attorney, Catherine Burnett, who spoke to
him by telephone at death row in Livingston. Monday's stay comes at
a time when condemned inmates around the country increasingly are
challenging the injection method as unconstitutionally "cruel and
unusual punishment." Lethal injection has long been used in 37 of
the 38 states that have the death penalty because it is considered
more humane than shooting, hanging or electrocution.
But defense attorneys have recently cited new
medical information that they say shows the inmates may suffer
excruciating pain because they are sometimes conscious when the
lethal drug takes effect. The inmates are unable to indicate they
are in pain because of a paralyzing agent that is part of the three-drug
combination used in such executions, the attorneys say.
O'Brien's scheduled execution is the ninth this
year to be postponed to consider such claims. The U.S. Supreme Court
has so far declined to address the constitutional question directly.
But in a Florida case argued last month, Hill v. McDonough, the
justices pondered a related procedural issue.
By July, the high court will decide whether
Clarence Hill, who was convicted in the 1982 murder of a police
officer, can get a last-minute hearing to challenge the execution
method. That likely influenced the state court, O'Brien's attorney
said. "I think the Court of Criminal Appeals is taking the
prudential view not to rush this issue when it's pending before the
Supreme Court," said Burnett, who also is an associate dean of the
South Texas College of Law.
O'Brien - who admitted to but was never tried for
killing a 27-year-old woman months before the Ertman and Peña
slayings - also has a separate appeal pending before the Supreme
Court.
Despite the court's ruling Monday, a spokesman
for the Attorney General's office denied there is a de facto
moratorium on executions in Texas. Another execution is scheduled
for Wednesday; 14 more are set through October. Harris County
Assistant District Attorney Roe Wilson said she was surprised by the
stay for O'Brien and suggested the Texas court may be awaiting
movement from the high court on the issue. "We have had some (death
penalty cases) where that has been a claim, and those executions
have gone through," Wilson said. "So it's very surprising."
It also dealt another frustrating blow to the
families of the victims. Last year, two other men convicted in the
Ertman-Peña case had their death sentences commuted to life in
prison after the Supreme Court determined that people could not be
executed for crimes committed when they were minors.
O'Brien, who was 18 at the time of the crime,
would have been the first of the killers to die; two others remain
on death row, while a sixth man, who was 14 at the time, is serving
a 40-year sentence.
Ertman's father, Randy Ertman, on Monday called
the Texas appellate judges "spineless" and thanked "the people of
Houston for their thoughts, concerns, overwhelming support and
prayers over the past week, actually over the last 13 years." "And
that's about it," he added. "There's nothing else I can say that's
printable. ... We'll get over it, like everything else. It's just
another bump in the road of the justice system."
Ertman, who also had planned to view the
execution, said he no longer intends to. "I'm not going to view any
executions now. I'm not going to allow them to beat me again," he
said. "I feel like I've gone a round with Muhammad Ali. I'm not
going to view it. There's no sense to it."
ERTMAN-PEÑA CASE
As the first execution
nears, the effects of two girls' slayings linger in both court
procedures and their survivors' lives / Murders still felt across
city
Sun 05/14/2006
Catching up with friends after a family vacation
in Florida, Elizabeth Peña beamed as she showed off the stuff she'd
bought with her 16th birthday money: a new pager, some new
underclothes.
As the summer evening waned, Jennifer Ertman,
another Waltrip High School sophomore, checked her Goofy wristwatch
and saw that it was pushing midnight. She and Peña would break their
curfews if they didn't get home in a hurry.
The girls debated how to get to Peña's Oak Forest
home in northwest Houston. One route would take half an hour; a well-known
shortcut along the railroad tracks through T.C. Jester Park would
save about 10 minutes. The shorter route instead led the girls into
the hands of six teenage gang members who had just finished an
initiation ritual.
For an hour, the six raped and tortured the girls
before strangling them - stomping on their necks for good measure.
Their bodies were discovered four days later, horrifying a city that
shrugs off hundreds of homicides each year. The Ertman-Peña case
captivated a generation of Houstonians the way the Dean Corll-Elmer
Wayne Henley multiple murders had an earlier one.
On Tuesday, the first of Ertman and Peña's
killers is set to die by injection. "I've waited 13 years to view an
execution," said Ertman's father, Randy Ertman, who will witness the
act thanks to a policy change prompted by the case. "In the grand
scheme, it may not mean a whole hell of a lot. But Derrick Sean
O'Brien will never kill again."
Barring court intervention or a last-minute
reprieve, O'Brien, a ninth-grade dropout who last month turned 31,
will be the ninth killer to die in Texas' death chamber this year.
He turned down requests to be interviewed for
this article. But in affidavits that appellate attorneys have filed
in an effort to save O'Brien's life, relatives said his behavioral
problems began in school, after he claimed a teacher made sexual
advances toward him. Administrators sided with the teacher, and
O'Brien was transferred to an alternative school.
During his trial, other evidence was presented
about O'Brien's violent past, which included another murder months
before the girls' slayings. The five other gang members involved,
most of whom are in their early 30s, remain in state prisons.
The former gang leader, Peter Anthony Cantu, 30,
and Jose Medellin, 31, are on death row, but their execution dates
have not been set. Two others who were sentenced to death had their
sentences commuted to life in prison last year after the U.S.
Supreme Court determined that it was cruel to execute those who were
juveniles when they killed.
Raul Villarreal and Efrain Perez, now both 30,
were months away from turning 18 when they participated in the gang
rapes and murders. Venacio Medellin, 14 at the time of the crime,
testified against the others and is serving a 40-year sentence.
In the years since, as the killers became adults
behind bars, Adolph and Melissa Peña became grandparents. They said
they were "saved" by their two other children, who gave them a
reason to wake each morning, though their son, Michael, remains
bitter.
The Peñas, like Randy Ertman, plan to witness
O'Brien's execution. For years, Randy Ertman sought escape through
alcohol, but he now remains sober for the sake of his wife, Sandy.
The couple, who have no other children, now live
a quiet life tending to their garden at their small, two-story
lakefront home in Somerville. By the time Villarreal and Perez were
scheduled to die - on the 11-year anniversary of the crime - the
Supreme Court already had begun considering the juvenile-killer
issue and the executions were postponed.
The ruling that followed was hard on the girls'
parents. But they cling to the expectation that, at least, the state
will dispatch three of the killers.
On the moonless night of June 24, 1993, members
of a little-known gang had gathered near a patch of woods along
White Oak Bayou near West 34th. Villarreal, who was 17, had trash-talked
his way into being "jumped into" the gang. It was time to prove
himself.
The gang members - Cantu, O'Brien, Perez,
brothers Roman and Frank Sandoval, Medellin and his brother Venacio
- took turns pummeling the inductee. Then, they all downed beer and
talked about what it meant to be in a gang.
The Sandovals, heading home, passed two girls
along the railroad tracks. A moment later they heard: "What's
y'all's name?" The brothers watched as Jose Medellin grabbed
Elizabeth and threw her to the ground.
She screamed for help. Jennifer broke away but
returned and was grabbed by Cantu and O'Brien. The girls cried and
struggled while the gang members repeatedly sexually assaulted them.
At times, two would assault one girl. Afterward, according to court
records, Cantu flatly told Jose Medellin, "We're going to have to
kill them."
The girls pleaded for their lives, but the gang
members took them into a clearing beneath a canopy of trees. O'Brien
and Villarreal forced Jennifer to her knees and looped O'Brien's
belt around her neck. Jennifer clawed at the belt and struggled to
breathe.
O'Brien grunted as both pulled on the belt so
hard it snapped. Jose Medellin, Perez and Cantu killed Elizabeth in
a similar manner. They then stomped on the girls' throats to make
sure both were dead. Later that night, the gang members divided up
money and Jennifer's jewelry. Cantu handed Venacio Medellin her
Goofy watch. The girls' clothes, including Elizabeth's new
undergarments, were strewn among empty beer cans.
When Jennifer did not return home that night, her
parents began to frantically page her. After the Peñas returned from
work the next day, they realized that their daughter, too, was
missing. They figured that if she and Jennifer had simply fallen
asleep at their friend's apartment on West 34th, she would have
called.
The parents called police and began papering the
neighborhood with fliers. An anonymous tipster, later revealed as
Cantu's brother, led police to the site where the bodies had been
left. Ramon Zaragoza, a Houston police homicide investigator, was
struck by the grotesque condition of the girls' bodies.
Decomposition had claimed their facial features.
Jennifer had three fractured ribs, and Elizabeth had several missing
teeth. Zaragoza encountered Jennifer's father at the park. "Does she
have blond hair?" Randy Ertman screamed as he was being restrained
by police.
Zaragoza, now retired, told Ertman that
investigators would need dental records to identify the bodies. "I
think that gave him an idea of what the situation was," he said.
When O'Brien was arrested a day later, he told officers he had been
expecting them. The other killers also were arrested.
Randy Ertman will be inside the death house in
Huntsville on Tuesday because of a simple request he made during the
trials. His inquiry ultimately led to policy changes granting
victims' relatives the chance to witness executions.
The case also established what has become
accepted court procedure that allows victims to address defendants.
"This case set a lot of precedents," said Andy Kahan, the mayor's
victims rights advocate. " ... and it has enhanced victims' rights
in the state." Catherine G. Burnett, O'Brien's appellate attorney,
said it did something more. "This case has become part of the
collective consciousness of the city of Houston," she said. "It's
definitely part of that ethos."
The Ertmans and Peñas all will be in Huntsville
on Tuesday, though Sandy Ertman has decided not to watch the
execution. None plans to celebrate. "I kind of feel numb in a way
knowing that I've been waiting so long for this day to come," said
Peña, who lives in Hockley with his wife. His wife added, "I don't
want anyone to think we are happy. This will not be a happy day for
us. It's going to be a difficult day for us."
The Peñas' other children, Michael and Rachel,
were 12 and 5, respectively, when their sister was murdered. "I
don't think it affected Rachel like it did her brother," Adolph Peña
said. "Michael is still really, really angry about the deaths."
Peña often wonders what he could have done
differently that day, whether he failed to keep his daughter safe.
He warned her that her beauty might attract unsavory characters. "You
have to be careful. You can't trust just anybody," he told her. "At
your age, as pretty as you are, you can't trust anyone you don't
know."
The girls knew, their parents said, they could
always call home, and they always had money for cab fare. Why they
chose to walk home is a mystery. Jennifer, who had played on a
basketball team but decided it wasn't for her, had just started
dabbling with makeup, her mother said. Elizabeth was known to wear
distinctive red lipstick that contrasted with her fair skin. Both
girls were well-liked at Waltrip.
Anne-Marie Franz, a former physical education
teacher, said she was close to both. After their deaths, she
organized the planting of a crape myrtle and the erection of a
memorial plaque on campus. Jennifer was a girl "who walked the line
without getting in trouble, but knew where the magic line was," said
Franz, now a teacher in Austin. "She didn't want to cross it or get
in trouble at home." Elizabeth, she said, was a social butterfly who
loved to talk to her friends. After their murders, many of the girls'
friends found it difficult to even walk the same halls as they had,
Franz said. Some transferred or dropped out. "The events that took
place that day changed our lives," former student Carrie McCleary
wrote in an e-mail to the Chronicle. "Tears come to my eyes as I sit
here and remember all of the details. I remember that day as the day
that ended our innocence." Mike Maddux, another student, wrote that
Waltrip became "a very large family after that."
Before his trial, O'Brien's mother, Ella Jones,
and his stepgrandfather described O'Brien as "cruel and
intentionally harsh," according to court records.
Neither testified because his defense attorneys
concluded both would be more helpful to the prosecution. "What the
hell went wrong with this guy?" asked Harris County Assistant
District Attorney Steve Baldassano, who prosecuted O'Brien. "How bad
could it be in his head that he could walk around and do this stuff?
I'm not a huge fan of the death penalty, but this is the kind of guy
I think it's for. It fits the crime."
During his trial, one of his teachers testified
that a "very aggressive" O'Brien fought with other students and
often had to be restrained. She witnessed him break another
student's jaw.
A school bus driver said O'Brien was often drunk,
sometimes carried a knife and often spoke of stealing cars.
Testimony of an assault at a fast-food restaurant was presented.
Jurors also were told during the punishment phase of his trial that
he was a model inmate while at the Harris County Jail. But appellate
attorney Burnett said that wasn't enough. "The question at
punishment is whether there is anything in this person's life that
warrants a finding of life rather than death," said Burnett, also an
associate dean of the South Texas College of Law. "I don't think the
jury got to make that decision fairly because they didn't get
anything else."
Acknowledging that the crime was "devastating,"
Burnett said O'Brien was not what she expected. "The portrait the
jury saw was that of a terrifying monster," she said. "The man I
know does not seem to be the defendant in this case."
From his prison cell four years ago, O'Brien
posted a lengthy Internet essay about the costliness of capital
punishment and reflected on the value of life. "Life is a miracle
and therefore precious. Each time one is taken before its time the
world loses something special," O'Brien wrote. "All of this may
sound strange coming from me, a death row inmate, but if I never
strove to change even knowing my wrongs, I couldn't call myself
human."
Baldassano noted that after O'Brien's arrest, he
confessed that he was behind another slaying months before the
Ertman and Peña murders.
On Jan. 4, 1993, police found the partially nude
body of Patricia Lopez, a 27-year-old mother of two, in Melrose Park.
Empty beer cans, cigarettes and a broken belt were found nearby.
O'Brien attempted to rape Lopez, then he killed her. She was stabbed
in the abdomen, neck and back.
Now, life for Jennifer and Elizabeth's parents
revolves around simple pleasures: fishing and gardening for the
Ertmans; caring for grandchildren for the Peñas. The grief remains.
"It's never going to go away. The hurt is still the same," Peña said.
"I still find myself crying just out of the blue." Today, Elizabeth
would likely revel in her role as an aunt. She probably would be
married herself with children, her parents muse. Jennifer's parents
simply say that if she were alive today, their only daughter would
be happy.
And, if O'Brien had chosen a different path, his
attorney asks, where would he be today? "I wonder when I'm meeting
and talking with him how his life could've been different," Burnett
said, "how all of our lives could've been different."
GANG VICTIMS
Lives cut short: Jennifer Ertman and Elizabeth Peña, both Waltrip
High School sophomores, were raped and murdered in the summer of
1993 by members of the Black and White Gang. One member, Derrick
Sean O'Brien, will be executed Tuesday.
THE AFTERMATH
Jennifer Ertman and Elizabeth Peña were attacked, gang-raped and
strangled as they walked through T.C. Jester Park on June 24, 1993.
Six gang members were convicted and punished for the murders:
Derrick Sean O'Brien is set to be the first
person executed in the case. O'Brien, now 31, also admitted to the
Jan. 4, 1993, strangulation murder of Patricia Lopez, a mother of
two.
Jose Ernesto Medellin, a Mexican native who was
raised in Houston, is also on death row. He is appealing on the
grounds that he was denied access to a Mexican consulate official
during his arrest.
Efrain Perez, 17 at the time of the crime, also
had his death sentence commuted by the Supreme Court ruling.
Venacio Medellin, who was 14 at the time of the
rapes and murders, received a 40-year sentence and testified against
the others. A parole hearing will be conducted in the coming weeks.
Raul Omar Villarreal was 17 when he was inducted
into the Black and White Gang. His death sentence was commuted to
life in prison when the Supreme Court ruled last year that juvenile
killers could not be executed.
Peter Anthony Cantu was considered the ringleader
of the gang. He was also condemned, but no execution date is set.
Justices skeptical consul calls would change
verdicts
Foreigners want new trials because they were never told
they could contact consulates
03/30/2006
WASHINGTON - Lawyers for two foreign nationals
found guilty of violent crimes tried to convince the Supreme Court
on Wednesday that those convictions should be thrown out, because
the men were not told they could contact their consulates before
talking to police. But the justices appeared skeptical that the
oversight would justify suppressing the evidence that led to the
guilty verdicts.
The two cases, which are being considered
together by the high court, were brought by Mario Bustillo, a
Honduran convicted of killing a Virginia teenager with a baseball
bat in 1999, and Moises Sanchez-Llamas, a Mexican found guilty of
attempted murder in the shooting of an Oregon police officer in
1997.
Lawyers for both men said the Vienna Convention,
a treaty signed by the United States in 1969, required American
officials to contact the embassies of foreign nationals "without
delay." It is not enough for arrested foreigners to be told they can
remain silent, hire a lawyer or have a lawyer appointed, the Miranda
rights extended to Sanchez-Llamas, said his attorney, Peter Gartlan.
"Foreign nationals have a fourth option" - to immediately contact
their consulate, Gartlan said. Failure to observe that right, he
said, should compel prosecutors to throw out all evidence obtained
by police from interrogations.
The high court justices on Wednesday did not
appear to buy the argument of the convicted men's attorneys. Justice
Antonin Scalia said the Vienna Convention set up a mechanism for one
country to protest the actions of another country toward its
citizens, not establish a set of individual rights for foreign
nationals.
He also noted that no other country has
interpreted the treaty as requiring evidence obtained before
consular notification to be suppressed. "It is implausible that we
signed a treaty that requires us to suppress (evidence from
interrogations), but it lets other countries do what they like,"
Scalia said. Justice Stephen Breyer said he was inclined to accept
that the men's rights under the treaty had been violated. But he
said he doubted that suppressing evidence obtained by police was the
proper remedy.
The court is expected to rule on the cases before
July. The decision could have an impact on thousands of foreigners
in U.S. jails and prisons. In Texas, 10,205 inmates claimed to be
citizens of a foreign country at the end of 2005, according to the
state's Department of Corrections. Medellin is one of 17 Mexicans on
Texas' death row.
The Vienna Convention, signed by 168 countries,
established the ground rules under which countries must treat the
citizens of other nations that signed it. But Gregory Garre, U.S.
deputy solicitor general who argued Wednesday in support of the
states of Virginia and Oregon, said the treaty set up ways for
governments to address violations through diplomatic channels. It
did not give Americans overseas or foreigners in the United States
individual rights not granted the citizens of those countries, he
said. Several justices suggested that police need to make a better
effort to let foreigners know they have the right to contact their
country's officials. "It's not like rocket science. Give the advice.
End of case," said Justice Anthony Kennedy.
BACKGROUND
In Texas: The cases before the Supreme Court
echoed the claim last year by Texas death row inmate Jose Medellin,
who sought to have his conviction in the 1993 murders of two Houston
teenagers - Jennifer Ertman, 14, and Elizabeth Peña, 16 - overturned
because Mexican authorities were not contacted. The high court
appeal was dismissed after President Bush told Texas to give
Medellin another hearing to comply with international law. The
hearing has not yet been held.
Killer in Ertman-Peña case loses appeal
12/29/2005
Convicted killer Derrick Sean O'Brien, one of
five gang members condemned for the savage rape-slayings of two
teenage Houston girls more than a dozen years ago, has lost an
appeal before the 5th U.S. Circuit Court of Appeals.
O'Brien, now 30, was 18 in June 1993 when he and
five companions attacked Jennifer Ertman, 14, and Elizabeth Peña,
16, both high school sophomores who were walking home at night after
visiting a friend.
In the ruling released Tuesday, a three-member
panel of the New Orleans-based court denied O'Brien's request for a
certificate of appealability, which is needed before he can appeal a
federal district court's January denial of his case.
Death row case returns to Texas
Supreme
Court says state must review conviction of Mexican killer
05/24/2005
WASHINGTON - The fate of a Mexican on Texas'
death row for killing two Houston teenagers more than a decade ago
is back in the hands of state courts following the U.S. Supreme
Court's denial of his appeal Monday.
The conviction of Jose Medellin, one of five gang
members sentenced to die for raping and killing Jennifer Ertman and
Elizabeth Peña in 1993, remains in question because Medellin was not
advised of his right to get help from Mexican consular officials
before his trial.
In a 5-4 decision, the court ruled that Texas
must reconsider the case as directed by President Bush in February.
Bush instructed Texas and other states where similar appeals are
pending to give Mexican defendants new hearings to comply with
international law. Medellin already has filed an appeal with state
district court in Houston based on Bush's order.
In its unsigned opinion, the high court reserved
the right to reconsider Medellin's case based on the state's
decision. Justice Sandra Day O'Connor said in a dissenting opinion
that the court was avoiding a central issue. "It seems to me unsound
to avoid questions of national importance when they are bound to
recur," she wrote. "Noncompliance with our treaty obligations is
especially worrisome in capital cases."
The decision puts the merits of the appeal on
hold, "but it does it in a way that certainly leaves open the
opportunity for a change in sentence perhaps, or better compliance
with the Vienna conventions," said Richard Dieter, executive
director of the Washington-based Death Penalty Information Center,
which opposes capital punishment. Under international law, Medellin
and 50 other Mexicans on death row in the United States, 16 of them
in Texas, should have been able to seek help from their consulates
when preparing their defense, Mexican officials argued. They said
they learned of Medellin's sentence when he wrote to them from death
row.
The International Court of Justice in The Hague
agreed with Mexico last year, ruling that the United States violated
the 1963 Vienna Convention by failing to inform Mexican nationals of
their right to confer with their consulates. That's when Bush
stepped in and ordered states to reconsider the cases.
The administration maintained that the Vienna
accord and international law had no legal binding in U.S. courts but
said the president had the right to decide whether to comply with
international conventions in the interests of American foreign
policy.
His intervention in the death row cases was
widely viewed as designed to improve strained relations with Mexico.
Days after issuing his memorandum, Bush withdrew the United States
from the part of the treaty that gives the World Court the final say
in international disputes. Bush can give executive orders to states,
but it's unclear whether he can do the same with courts. That's a
question the Texas court will address in the Medellin case, Dieter
said.
When Ted Cruz, solicitor general for the Texas
Attorney General's office, argued the case before the Supreme Court
in March, he said Medellin failed to show that the outcome of his
case would have been different had the Mexican consulate been
notified of his arrest.
In earlier appeals, attorneys for the state said
his conviction should be upheld because he did not ask for consular
help during his initial trials. Donald Donovan, Medellin's attorney,
said Monday's Supreme Court ruling clears the way for his client to
exercise his rights in Texas. "We are confident that the Texas
courts will agree with the president that the United States must
comply with the treaty commitments made by its elected
representatives, especially when the United States itself depends on
that treaty for the safety of Americans working and traveling abroad,"
he said.
Medellin admitted that he and several other gang
members abducted the two girls when they were walking home in the
dark, then raped and strangled them.
Reviews give hope to Mexicans on death row
Possible violation of right to local consular notification may
lighten sentences
03/29/2005
On a sultry summer night in 1993, Jose Medellin
and a loose band of friends entered the ranks of local infamy by
committing one of the worst crimes in the city's collective memory.
Half-drunk, stoked by an evening of fighting and
trash talking, the group abducted two girls walking home in the dark
and raped them repeatedly before finally strangling and stomping
them to death. "This crime was every parent's nightmare," Medellin's
prosecutor, Terry Wilson, said at the trial during closing arguments.
"That nightmare has a face, and there he is." The jury wasted little
time in sentencing Medellin to die, one of five death sentences
handed down for the brutality visited upon Jennifer Ertman and
Elizabeth Peña.
Eleven years later, Medellin's attorneys are
hoping to convince a judge that if he had the benefit of a better
trial counsel and more money for an investigation, the jury might
have settled on a different punishment. It may be a hard sell, but
at least they are going to get a hearing, something that did not
look likely until earlier this month when President Bush ordered
that the convictions of Medellin and 50 other Mexican nationals on
American death rows be reviewed by a court because their rights to
have local Mexican consuls notified after arrest - a right
guaranteed by an international treaty - were violated.
Bush said he felt that the United States' full
participation in the Vienna Convention on Consular Rights required
him to uphold a ruling by the International Court of Justice that
the 51 Mexicans are entitled to individual judicial review.
Ten days later, in a move to prevent the issue
from coming up again, the administration decided to withdraw from
the optional provision of the convention that allowed the world
court to have a final say on cases brought to it.
Though it may be a moot point now, the state of
Texas on Monday challenged Medellin's right to have additional
access to federal courts because of the international court. In U.S.
Supreme Court arguments scheduled before Bush agreed to comply with
the ruling, the state contended there is no valid constitutional
claim for federal courts to consider. It also disputed the authority
of President Bush to order state courts to do anything.
For Mexico, just getting Bush to order the
hearings was a long-anticipated victory. A staunch opponent of the
death penalty, the Mexican government now helps pay for the legal
defense of its citizens charged with capital murder in the United
States. That can make a difference in result, especially in Texas,
where the quality of capital defense has been inconsistent.
"The government of Mexico would be finding first-class
lawyers," said Mike Charlton, one of Medellin's appellate lawyers. "That's
a huge advantage over your average court-appointed lawyer." Whether
the unusual hearing will prove of real benefit to Medellin is
questionable, at best.
Barring surprising revelations, it might be an
uphill battle to convince a judge that a better lawyer would have
led a Houston jury to a different conclusion - assuming that is the
standard that will be applied. If his attorneys are required to
prove only that the performance of Medellin's trial counsel was poor
enough to harm his case, that might be another matter. "Nobody knows
what the standards are going to be, or much anything else yet,
because there are still so many questions," Charlton said. "But the
sad fact is that the guy who tried the case didn't do jack. He
didn't do anything to help his client. He called one witness. He did
not talk to any members of his family."
In at least a few cases, the chance to be heard
anew offers real hope. Attorneys for Cesar Fierro, for instance,
relish the opportunity to get back into court to challenge a
conviction that has been troubled almost from the beginning. Fierro,
49, was convicted in the February 1979 shooting death of an El Paso
taxi driver. He insists officers coerced him into a confession by
telling him his parents were in jail and they would remain there
until he admitted to the crime.
A district judge in 1994 recommended a new trial
for Fierro. The prosecutor in the case later said he would have
moved to dismiss the indictment had he known of the circumstances of
the confession and if he could not have uncovered significant
evidence to corroborate it.
Appellate courts, however, have so far provided
no relief. "He has a very compelling consular assistance claim - his
parents were in essence abducted and held and threatened with
torture," said Mark Warren, a legal analyst who specializes in
consular rights. "Had he been advised of his consular rights, one
thing that would have happened was Mexican officials would've
secured his parents' release from custody."
Francisco Molina Ruiz, former attorney general of the state of Chihuahua, has submitted a
sworn statement that his office would have intervened with police
had it been notified and ordered the release of Fierro's parents.
The international court stopped short, however,
of suggesting there should be a new outcome in Fierro's case or any
other, said Richard Dieter, executive director of the Death Penalty
Information Center. "It may be the minority of cases where there is
even an argument to be made," Dieter said. "It may be in some cases
there would be a little more mitigating evidence to be presented.
Each case will have to make it on its merits that (consular
assistance) would have made a difference.
In some cases there could be an entirely new
sentencing trial, or perhaps a new guilt trial, though the
prosecutors are already required to prove guilt beyond a reasonable
doubt." At the moment, no one knows the precise procedure to be
followed in the hearings. Some might occur in state courts, some in
federal.
The issues that these judges may take into
account will not be as limited as in a normal appeal, in part
because the rules that prohibit consideration of an issue not raised
at the original trial - the rules of so-called procedural default -
will not be enforced. The only real issue to be resolved is whether
the lack of consular assistance, and whatever that implies, likely
affected the outcome of the trial.
THE ECHOES OF A MURDER CASE
The 1993 murders of Jennifer Ertman and Elizabeth
Peña shocked the city of Houston as no other crime has in recent
memory. The criminal proceedings against their six assailants have
made legal headlines as well. Five of the defendants were certified
as adults and each received a death sentence - at the time the most
for a single crime in the modern era. Other legal issues in which
they have been involved include:
Victim impact: Texas law was changed during the
1980s to give crime victims or their families the right to make a
statement at the end of a trial. The Ertman/Peña prosecutions,
however, marked the first time a judge permitted it in a high-profile
case.
Juvenile killers: The U.S. Supreme Court's
decision earlier this year to ban the death penalty for juvenile
offenders took two of the Ertman/Peña killers off death row. Efrain
Perez and Raul Villarreal were 17 at the time of the slayings. Their
capital murder convictions stand, and they will serve life sentences.
Consular access: President Bush's decision to
order the judicial review of the cases of 51 Mexican citizens on
death row in the United States was brought about in part through the
efforts of attorneys for Jose Medellin, one of the Ertman/Peña
killers. Bush's order enforces the ruling of the International Court
of Justice, which said the lack of consular notification could have
compromised the defense of the 51 defendants.
Houston killer `had his day,' U.S. Supreme
Court told
Lawyers argue Mexican's guilt in 2 girls' murders
should be upheld
03/29/2005
WASHINGTON - The conviction of a Mexican national
for the infamous killing of two Houston girls should be upheld even
though he was not advised of his right to help from his country's
consulate, a lawyer for the state of Texas told the U.S. Supreme
Court Monday.
In the dispute over the domestic application of
international law, Texas contends the case of Jose Medellin, who was
sentenced to death in 1994, should not be reconsidered because he
failed to raise the consular advice issue during his state court
trials.
"It is time for the Supreme Court to rule that Mr.
Medellin has had his day in court," said R. Ted Cruz, solicitor
general for the Texas Attorney General's office. Medellin "had no
constitutional claims," he added.
Medellin's attorneys have seized on the
International Court of Justice's ruling that U.S. courts must review
Medellin's sentence and that of 50 other foreign nationals in nine
states on death row.
The ruling was based on the 1963 Vienna
Convention, signed by the United States, which requires consular
access for people detained in a foreign country. Donald Donovan,
Medellin's attorney, told the justices that an international treaty
signed by the president and ratified by Congress is legally binding
on the courts.
Medellin's case was bolstered by a directive from
President Bush, who has asked that state courts review the 51 death
penalty cases, he said. After agreeing to comply with the
international body's decision, the White House notified the United
Nations that it was dropping out of the provision of the treaty that
allows the court to referee disputes.
The Bush administration also weighed in
separately in the Medellin case, with the Justice Department asking
the Supreme Court to let the Texas courts decide how to handle the
matter.
Michael Dreeben, U.S. deputy solicitor general,
told the court that a ruling favoring Medellin could hamstring the
president if he wanted to reject a finding by the international
court. Medellin was one of five boys and men involved in the 1993
rape and murder of Jennifer Ertman, 14, and Elizabeth Peña, 16, who
were attacked while on their way home.
The justices appeared divided Monday on whether
they should rule now or wait until the state courts to decide. Chief
Justice William Rehnquist said that it seemed "topsy-turvy" that the
legitimacy of an international treaty should be decided in a state
court rather than the Supreme Court.
But Justice John Paul Stevens said that by
deferring to the state courts, the high court could sidestep some
thorny issues. "Isn't it true that the Texas proceedings could make
this moot?" Stevens asked.
Donovan argued that if the Supreme Court
dismisses the case, state courts might take that as a sign that they
do not need to act. Sandra Babcock, counsel for Mexico, said the
case's outcome is important for Americans who may find themselves
unfairly arrested by local authorities in foreign countries and need
the help of U.S. officials.
Medellin's attorneys have also filed a challenge
with the state district court in Houston. Cruz said the state will
fight Bush's order to reconsider the case of Medellin and 14 other
foreign nationals on death row in Texas. The president overstepped
his authority by ordering the courts to automatically review all of
the sentences without considering the merits of each case, he said.
Peña's father, Adolph, who traveled from Houston,
was present for Monday's Supreme Court proceedings with his wife,
Melissa, and 17-year-old daughter, Rachel. With all the legal
wrangling, the crime against his daughter was being overlooked,
Adolph Peña said. "Those scumbags have been in there (prison) long
enough," he said. "It is time for them to be executed."
Peña also expressed anger at Bush for intervening
in the case, saying the president was acting for political reasons.
The issue of Mexican nationals on death row in the United States has
been a source of friction between the White House and the Mexican
government.
The high court agreed to take up the case after
the 5th U.S. Circuit Court of Appeals in New Orleans ruled Medellin
was not entitled to federal court relief because he had not objected
during his trial to the fact that the Mexican consulate was not
notified.
BUSH ORDERS HEARINGS FOR MEXICAN NATIONALS
The directive in death row cases sparks
challenge from Texas officials
03/09/2005
In a move that could spawn a fight over
presidential powers, the Bush administration has ordered Texas and
other states to conduct hearings for 51 Mexican nationals on death
row who claim their rights were violated when local consulates were
not notified of their arrests.
The directive came after years of criticism from
foreign governments and an adverse decision last year by the
International Court of Justice, which decreed that U.S. courts
should provide "effective review" of each case to determine whether
the lack of consular assistance could have affected the outcome.
"It's historic. It's a first," said Mark Warren,
an international legal analyst who specializes in consular rights. "Whether
it will end up providing the rule of decision, as judges like to say,
remains to be seen. It is a remarkable development and a very
important step toward satisfactory resolution to this issue. But the
final chapter has yet to be written."
The Vienna Convention on Consular Relations,
ratified by the U.S. Senate in 1969, provides that "consular
officers shall have the right to visit a national of the sending
State who is in prison, custody or detention; to converse and
correspond with him; and to arrange for his legal representation."
The Mexican government has complained loudly for
years that these rights are often ignored by U.S. authorities. Legal
experts were uncertain precisely how the courts in eight states
holding the 51 inmates would comply with the executive order, or
whether all would even try. Texas Attorney General Greg Abbott
immediately challenged the right of President Bush to tell Texas
courts what to do.
"We respectfully believe the executive
determination exceeds the constitutional bounds for federal
authority," Abbott said in a prepared statement. His comment echoed
Gov. Rick Perry's rejection last year of the international court's
opinion. Perry said the court had no jurisdiction over the state's
criminal justice system.
Bush's order covers 15 of the 16 Mexican
nationals on death row in Texas. Only admitted serial killer Angel
Resendiz, convicted of one murder in Houston and implicated in a
dozen others in five states, failed to join the case.
Houston lawyer Danalynn Recer, who represents
Mexican nationals in capital murder cases on behalf of the Mexican
government, said Bush's order was significant because it recognizes
the importance of U.S. courts complying with established
international rights. "When any foreign national is not notified of
their right to contact their consulate, they're being denied their
government's assistance," Recer said.
Bush's order comes weeks before the U.S. Supreme
Court is scheduled to hear arguments in the case of Jose Medellin,
who was sentenced to death along with four others for the 1993
murders of Houston teenagers Jennifer Ertman and Elizabeth Peña.
Medellin, who was born in Mexico but lived most
of his life in Houston, has asked the high court to order a new
hearing based the violation of his consular rights under the Vienna
Convention. "Medellin has the best chance for a new trial he has
ever had," said Mike Charlton, one of his attorneys, who claims that
better legal representation paid for by the Mexican government could
have made a difference during the sentencing portion of his trial.
Abbott said Medellin's conviction has been given
ample review and he is not entitled to another one based on the
decision of the international court. "Medellin voluntarily confessed
to the brutal gang rape and murder of two teenage girls," Abbott
said. "He was convicted after a fair trial, applying U.S. and Texas
law. The state of Texas believes no international court supersedes
the laws of Texas or the laws of the United States."
As a matter of law, the Bush administration
agreed with Abbott's assertion. In a brief filed in connection with
Medellin's case by the U.S. solicitor general, the administration
said neither the Vienna accord nor the international court ruling
was legally binding on U.S. courts.
However, it also claimed the president had an
absolute right to decide, on the basis of foreign policy interests,
if and how the U.S. would comply with its international obligations.
"The president, the nation's representative in foreign affairs, has
determined that the United States will comply with the ICJ decision,"
the brief states. "Compliance serves to protect the interests of U.S.
citizens abroad, promote the effective conduct of foreign relations,
and underscores the United States' commitment in the international
community to the rule of law. That presidential determination, like
an executive agreement, has independent legal force and effect, and
contrary state rules must give way under the Supremacy Clause."
Death penalty expert Dudley Sharp said that,
barring a similar directive by the U.S. Supreme Court, the state
courts likely will decide that their previous reviews have been
adequate. "The states are already handling it the way the solicitor
general put it in his brief," Sharp said.
Mexico cheers U.S. decision on Texas inmates
03/09/2005
WASHINGTON - Mexico welcomed the Bush administration's decision
to allow Mexican citizens on Texas' death row to have their
sentences reviewed. The reception in the president's home state, in
contrast, was varied.
The development came in the Supreme Court case of Jose Medellin,
one of five alleged gang members sentenced to die for the Houston
killing of Jennifer Ertman and Elizabeth Peña in 1993.
Texas Attorney General Greg Abbott said the Bush administration's decision
intruded on the state's legal authority. But he did not immediately
decide whether to appeal.
U.S. Sen. John Cornyn, a Republican and frequent Bush backer,
said last week that "Texas is simply trying to enforce its laws;
Medellin has been given access to an attorney, a right to a fair
trial, and all of the appeals and habeas corpus rights our system
affords."
But on Tuesday the senator had no quarrel with the Bush decision,
because the American president, not the international court, was
passing judgment, Cornyn spokesman Don Stewart said Tuesday. The
administration's call for new hearings in state or federal courts,
depending on where the cases were originally tried, goes forward
unless Texas decides to contest the order in court.
Richard Stoll, a Rice University political science professor,
said Bush's decision showed a proper willingness to buck Texas
Republicans now that he has broader responsibilities. "There is a
certain amount of irony in the president siding against Texas in
this case, but when he changed jobs he changed his perspective." he
said.
Mexican officials cheered.
"It is very important that the Mexican government express its
satisfaction and its recognition of this determination by the United
States' executive power, which without a doubt will have an
important effect on the cases of our compatriots," said Arturo Dager,
legal representative to Mexico's foreign ministry.
Ruling is a `relief,' but inmates not
celebrating
Harris County killers spared by Supreme Court
action ponder new sentences
03/03/2005
LIVINGSTON - Locked away on Texas' death row for
more than a decade, Raul Villarreal knew the meaning of good days
and bad. The good days came when appeals were filed to free him from
the death sentence he received for the 1993 rape and murder of two
teenage Houston girls; the bad, when those appeals met rejection.
The worst day came not long ago when the U.S.
Supreme Court turned down his most recent appeal, thereby clearing
the way for him to be put to death. The best came Tuesday when the
same court ruled the execution of murderers who were minors when
they committed their crimes is unconstitutional.
On Wednesday, Villarreal, 29, still was
struggling to digest the meaning of the ruling, which has spared him
and 27 other Texas death row inmates from the executioner's needle.
Eleven of those inmates are from Harris County. "In a way," he said
after a thoughtful sigh, "it's a big relief. But I didn't act like I
was celebrating. It's bittersweet. There are still a lot of guys
left behind facing execution."
Villarreal, who was 17 when he and a group of
other youths fatally attacked Jennifer Ertman, 14, and Elizabeth
Peña, 16, said he has spent recent days coming to grips with the
probability that he would be executed.
The high court had stayed his scheduled June 24
execution pending a decision in the case resolved Tuesday. "My main
worries concerned my family," he said of his mother, Louisa
Villarreal, and his four siblings. "They're the ones who would be
left behind. I tried to take things one day at a time. I've worked
at accepting my responsibilities for the actions that brought me
here. It's helped me accept my fate."
Similar thoughts of life, death and the long
prison sentences they now likely will have to serve have occupied
other Harris County killers spared by the ruling.
Johnnie Bernal, 28, who claims he is innocent of
the August 1994 killing of Lee Dilley at a Houston ice house, has
been on death row since July 1995. He thinks Tuesday's ruling is "a
step in the right direction." Villarreal and Bernal were caught up
in a spike in juvenile crime in the late 1980s and early 1990s that
resulted in an unprecedented number of young offenders on death row.
And because those crimes were concentrated in
gang-heavy urban centers, the bulk of those offenders were
minorities. Of the 28 "juvenile" offenders on Texas' death row, 21
were black, Hispanic or Asian; nine of 13 such offenders executed
since 1982 were minorities.
Perry wants cases reviewed
In the wake of Tuesday's ruling, Gov. Rick Perry
has directed the Texas Board of Pardons and Paroles to review the 28
cases and recommend appropriate action. It is likely that many will
receive life sentences, requiring that they serve 40 years in prison
before becoming eligible for consideration for parole.
Bernal has appeals pending and is optimistic he
ultimately will be cleared of the crime and freed from prison. But
he acknowledged that a long sentence would be daunting. "Watching
your loved ones passing away and not being able to be there would be
heartbreaking," he said.
A long prison sentence would also be a
continuation of a near-decade behind bars that he said has been
filled with remorse. "Every time I pray, I include the Dilley family,"
he said. "A life's been lost, lives have been destroyed and crushed.
Every year I've been in here the depth of my feeling for his family
has grown."
Life on death row, he said, has not been easy. "I've
seen friends almost every other day going to their last Mass,"
Bernal said. "I've been around. All you could do is prepare yourself
mentally and spiritually. ... The more I've thought of the thing,
the more at peace with God I've become. I'm not afraid, but I feel
sorrow."
"They treat you like you are already dead," added
Robert Acuna, 19, who has been on death row about six months for the
2003 killing of his Baytown neighbors, James Carroll, 75, and his
wife, Joyce, 74. "They are as life-draining as they legally can be.
They keep you out of society. There is no contact visitation, no
watching the news on TV, no contact with other inmates. They don't
go by names, you have a number. They make you feel unimportant."
Acuna said his trial and incarceration often have
seemed unreal. "I've seen all this stuff on TV," he said. "But then
I realize there's no TV screen." Only when Tyler murderer Donald
Aldrich was executed shortly after Acuna's arrival last fall did the
young killer recognize the seriousness of his situation. "They took
him away and I knew I wasn't going to see him again," Acuna said.
Acuna, too, insisted he is innocent, and expressed confidence he
will be cleared. "Forty years in prison is a long time," he said. "But
if I'm alive, I can't complain."
Hoping to help others
Acuna and Bernal said they would like to work to
end the death penalty. "I can't see myself in prison just wasting
time," Villarreal said of his expected future. "I would like to use
my experience to help others. Maybe in a youth program or something."
Villarreal said he is deeply remorseful for his
crime, and he is aware that the Supreme Court ruling sparing his
life angers his victims' families. "If the shoe were on the other
foot," he said. "If my children were dead ... I would feel the same
way."
THE SUPREME COURT RULING
Families of victims attempt to come to grips
with ruling. They voice their concern that the killers someday may
be set free
03/02/2005
Janet Green was teaching her sixth-grade class in
Conroe when her husband called with news about Tuesday's high court
decision. A hush came over the classroom as her expression darkened.
Green said she remained composed and only began
to cry hours later when she spoke publicly about the court's
decision that spares the life of her son's killer, Michael Lopez. "I've
been a teacher for 30 years and I've never had a kid that did not
know right from wrong," Green said.
Lopez was convicted of capital murder in the Sept.
29, 1998, slaying of 25-year-old Michael Eakin, a Harris County
deputy constable who had pulled him over for speeding. Lopez, who
was just 7 months shy of his 18th birthday, jumped out of his car
and ran into a field, followed by Eakin. The pair struggled before
Eakin was shot twice at close range.
Another family outraged During a news conference
with other crime victims' relatives, Janet and Bill Green said they
are concerned Lopez may be released one day. "We don't want these
guys on our streets to kill other sons and daughters," Bill Green
said.
The Supreme Court decision outraged Adolph and
Melissa Peña. The couple's daughter Elizabeth Peña, 16, and her
friend Jennifer Ertman, 14, took a shortcut home June 24, 1993, and
unwittingly walked into a drunken gang initiation in northwest
Houston.
The Waltrip High School sophomores' badly mauled
bodies were found four days later. "We're shocked and appalled our
judicial system can let this happen," Melissa Peña said Tuesday.
Her husband added, "They will be able to get out
in 40 years - it's just not right. Where would the justice be for
the girls?" The couple, like the Greens, had intended to witness the
executions of their daughters' killers. "Hell yeah, I was gonna be
there," Adolph Peña said.
Now the couple said they will have to make
sure that Efrain Perez and Raul Villarreal, who were both 17 at the
time of the murders, get life without parole. In all, six young men
were convicted in the crime.
Others praise decision
Perez and Villarreal, both now 29, were convicted
for the abduction, rape and murder of the girls. Three other
defendants received the death penalty. The sixth, who was 14 at the
time, was sentenced to prison.
While those families struggled with Tuesday's
decision, Villarreal's mother, Louisa, said she considers the high
court's decision a "miracle." "I'm so happy that the Supreme Court
has removed the death penalty," the mother of five said, choking
back tears. "This is a miracle. I'm happy like never before. This is
the best good news in all my life."
Villarreal said she last visited her son in
prison Saturday, and "he and me and a lot of other people" prayed
for a favorable ruling from the high court. She said she has no
illusions about her son's guilt in the crime. "I will tell you," she
said, "I think he was in the wrong place with the wrong boys at the
wrong hour. He was very nice, and he still is very nice. I don't
know what happened on that horrible day."
A `vicious generation' spawned push to
condemn
03/02/2005
Juvenile offenders were infrequent arrivals to
Texas' death row until the 1990s, when escalating juvenile violence
and a new breed of young killer prompted a severe reaction from the
criminal justice system. Only four Texas juvenile offenders were
executed for crimes committed in the 1970s. Ditto for the 1980s,
though one inmate from that decade remains on death row.
The turbulent 1990s saw a different story. An
explosion of juvenile crime, including a huge increase in juvenile
homicides, brought the gloves off. Most juvenile offenders currently
on Texas' death row - 25 of 28 - committed their crimes in that
decade. Half of the total occurred from 1994-99. In this case, Texas
mirrored a national trend.
Across the country, 76 juveniles were given death
sentences during the last half of the 1990s. That's almost as many
as the previous 12 years. Typically, getting a death sentence for a
juvenile offender has been harder than for an adult, not only
because of age but because of a more limited criminal record. That
changed in the last decade.
Experts think the impact of publicity about
juvenile crime made its way to the courthouse. Not only were there
more cases to consider, but people had been shocked by news reports
of gang violence, crack wars, drive-bys, school shootings and youths
everywhere with guns. "You had local news pounding on the issue, so
presumably the jury came in sort of primed to accept the message
that the juvenile crime rate is a problem," said Victor Streib, a
law professor at Ohio Northern University and an expert on the
juvenile death penalty. "The arguments in court were no different
than they ever were, but the public awareness of juvenile violence
was."
Robert Blecker, a New York law professor who
researched the wave of juvenile killers firsthand, thinks they were
a frightening aberration that had never been seen in society or the
criminal justice system.
Blecker spent more than 2,000 hours interviewing
young offenders in a Virginia prison that served Washington, D.C.,
one of the early venues in the outbreak of juvenile violence. He
said the death sentences that ensued from their murders were
understandable when details of the crimes are explored.
"It was an incomparably vicious generation, so it
doesn't surprise me there were these death penalties," said Blecker,
who teaches at New York Law School. "There was a depraved
indifference to human life that I think has peaked. There reached a
point where it got so out of control that even the older street
criminals recognized themselves that they wanted something better
for their younger brothers. The older kids were now reining in the
younger kids."
Dianne Clements, head of the Houston-based
victims rights group Justice for All, said she was disappointed that
the court would treat juvenile offenders with a broad brush instead
of letting their crimes be considered individually. "I was hoping
the majority of justices would give credence to the types of murders
that these 16- and 17-year-olds commit," she said, "and understand
how important it is to impose the type of penalties states permit
and (let) juries decide, instead of turning their backs on innocent
victims and families."
No state will be more affected by Tuesday's
ruling than Texas, which leads the nation by far in sentencing
juvenile offenders to death, even though state law permits only 17-year-olds
to be considered. Texas' 28 juvenile offenders on death row is
double that of Alabama, the only other state in double digits.
Alabama, which allows 16-year-olds to receive
death sentences, has never executed any of its juvenile offenders.
Texas has executed 13. No other state has more than five juveniles
on death row.
For those familiar with Texas' willingness to use
capital punishment, such numbers are hardly surprising. Its 338
executions since the resumption of capital punishment in 1977 - more
than a third of all those carried out in the United States - have
earned it worldwide distinction.
Many are not sad to see that distinction end, at
least with respect to juveniles. "Up until today, I think there were
six nations in the world that executed people for crimes they
committed as children - including China, Saudi Arabia, Republic of
Congo and Iran," said Jim Marcus, director of the Texas Defender
Service, which handles the appeals of a number of Texas death row
inmates. "So it's about time that the United States conformed to the
criminal justice standards of the Western Hemisphere."
For the families of victims, however, the
argument for standards pales beside their pain and outrage. "They
were certified as adults, they should be executed like adults," said
Adolph Peña, whose daughter Elizabeth and her friend Jennifer Ertman
were murdered in 1993 by a gang of teenagers that included three
juveniles. "Let those guys up in D.C. worry about whether they knew
what they were doing. I know my 16-year-old knew what they were
doing."
The reasons behind the rise in juvenile homicides
in the early '90s - the reaction to which may be indirectly
responsible for Tuesday's court ruling - will be debated by social
scientists for years. Blecker said several factors played a role.
The first was a widely observed phenomenon: the
flight of the minority middle class from communities that had
previously been segregated.
When the merchants and dentists and postal
workers left, the only people with money were those involved in
crime. Of greater influence, he said, was an epidemic of abuse of
crack and marijuana soaked in PCP. The drug culture seized control
of a sizable segment of youth.
Its assumptions - kill or be killed, no one makes
it past 21, live entirely for the moment - went hand in hand with
violence. The drugs themselves left the teens feeling both
invulnerable and paranoid, a lethal combination. As the epidemic
waned, the killings dropped. And so did death sentences. There have
been only 22 in the last five years and only two in Texas.
Streib, however, said only some of that decrease
should be attributed to fewer killings. In recent years, he said,
the practice of executing juvenile offenders has become less
palatable for society.
Death penalty opponents have campaigned steadily
against it, increasing their effort after the Supreme Court banned
execution of the mentally retarded in 2002. "The (death) sentencing
rate is much, much lower than the (juvenile) homicide rate," Streib
said. "There has been a lot of campaigning against the juvenile
death penalty. It's sort of out of favor politically now. And
whether they face the death penalty depends on what the local
prosecutor wants to do."
THE SUPREME COURT RULING
Juvenile offenders on death row from Harris
County
03/02/2005
Efrain Perez
Born: Nov. 19, 1975
Raul Villarreal
Born: Sept. 25, 1975
Their offense: June 24, 1993
Of all the juvenile offenders on Texas' death row,
two who will never provoke sympathy are Perez and Villarreal, who
were involved in the abduction, rape and murder of Jennifer Ertman
and Elizabeth Peña in Houston's most notorious crime of the 1990s.
The two girls were taking a shortcut home along
some railroad tracks near T.C. Jester late at night when they were
set upon by a group of young men who had been drinking and fighting
as part of a gang initiation. The violence that ensued shocked a
city normally numb to crime news.
Unwittingly, Villarreal set the chain of events
in motion when he ran into Perez, an old friend whose car had broken
down outside the convenience store where Villarreal was playing a
video game. The two began to chat and eventually went together to
the house of one of Perez's friends, Joe Medellin. An afternoon of
loose banter and trash talking among those three and others led to
Villarreal's initiation into a loose gang.
The initiation session, which mostly involved
beer drinking and Villarreal's fighting the gang members, was about
to break up when the girls, who had been enjoying a pool party at a
nearby apartment complex, crossed their path near a train trestle.
For logistical reasons, the five adults charged
with the crime were tried simultaneously. All received the death
penalty. Villarreal had no criminal record. Perez did. Neither was
the instigator of the assault, but both participated fully, both in
the rapes and murders.
Each had received an execution date in 2004 (on
the anniversary of the murders), set aside when the Supreme Court
said it would consider the issue of juvenile offenders. A juvenile
who was involved in the assault received a 40-year sentence.
High court considers rights of convicted
foreigners Killer on Texas death row says his case violated
international agreements
12/11/04
WASHINGTON - The U.S. Supreme Court stepped into
an international controversy over the legal rights of foreigners
Friday, agreeing to hear the appeal of a Mexican national sent to
Texas' death row for the gang rape and murder of two Houston
teenagers.
The high court will hear arguments next spring in
the case of Jose Medellin, one of five gang members condemned in the
deaths of 14-year-old Jennifer Ertman and 16-year-old Elizabeth
Pena. The girls were raped, sodomized and strangled with a belt and
their shoelaces on their way home one night in 1993.
At issue is whether lower federal courts should
have allowed Medellin to appeal his conviction and sentence on the
grounds that his rights under international treaties were violated.
Under the treaties, his lawyers argue, the
Mexican government should have been told of Medellin's arrest and
given a chance to help defend their countryman. In reviewing the
case, the Supreme Court will enter a larger debate that strained
relations between the United States and Mexico and could affect the
treatment of U.S. citizens accused of crimes while traveling or
living abroad.
A decision, expected by July, could determine the
fate of more than 50 Mexicans on death row in the United States,
including 16 in Texas. Friday's announcement comes eight months
after the International Court of Justice at The Hague, the United
Nations' highest court to resolve disputes, ruled that U.S.
officials should review the convictions and sentences of 51 Mexicans
on death row.
It said the United States had violated the Mexicans'
rights under the 1963 Vienna Convention by failing to inform their
government of their arrests and trials.
Attorneys for the state of Texas had argued in
lower courts that it was too late for Medellin to appeal because he
did not object at his trial. But Sandra Babcock, who represents
Mexico, said in court papers that if Mexico had been told about
Medellin's trial, the country would have made sure he had a good
lawyer and enough money to hire investigators and expert witnesses.
Medellin's case has widespread support outside the United States.
Dozens of countries, the European Union, former
diplomats, international law experts and legal and human rights
groups have weighed in on Medellin's side. "The Hague said the
United States had breached the treaty and the remedy is an
opportunity to review the convictions and sentences," said Lori
Damrosch, a Columbia law professor who filed a supporting brief on
behalf of a group of international law experts.
"The International
Court of Justice is binding on the United States as a whole and
therefore is biding on all courts in the U.S., and the Supreme Court
has the responsibility to clarify its previous rulings so lower
courts know what to do." Medellin's lawyer, Donald Donovan of New
York, could not be reached Friday for comment.
The Texas Attorney General's Office, which will
argue for the state before the high court, released a statement
Friday saying: "These crimes were committed in Texas, the cases were
tried in Texas courts and the defendants sentenced by Texas juries.
We will continue to enforce Texas state law."
Andy Kahan, director of the Mayor's Crime Victims
Assistance Office in Houston, said the court's decision to hear
Medellin's appeal came as a blow to the victims' families, who have
waited years for the executions of their daughters' killers. "I
continue to be shocked and amazed by the actions of a system that is
supposed to protect our victims and their families, but seems to go
out of its way to protect brutal, violent, remorseless killers," he
said. "No ruling will ever bring back these two young girls, but the
families are hopeful the court will see through this attempt to
circumvent the justice these two families so richly deserve."
Former U.S. diplomats and others told the
justices that following the Hague's order also would set a good
example if it cares about the rights of its own citizens in other
countries.
About 6,000 Americans arrested or detained each
year in other countries need consular help to understand foreign
legal systems, the diplomats said. Last year, the high court refused
to consider the case of Osbaldo Torres, another Mexican national on
Oklahoma's death row whose case was similar to Medellin's.
But Justices John Paul Stevens and Stephen Breyer
said they had misgivings. Because Oklahoma's governor commuted
Torres' sentence to life after the ruling at The Hague, Medellin's
case becomes the first to make it to the Supreme Court since the
World Court ruled in April.
Mexican President Vicente Fox canceled a meeting
with President Bush at his Crawford ranch in August 2002 after the
state of Texas refused to grant clemency to Mexican Javier Suarez,
who was on death row. Fox still raised the touchy issue when he
finally visited Crawford 19 months later.
The fate of two other killers of Pena and Ertman
- Efrain Perez and Raul Omar Villarreal - also could be determined
by the high court this term when it decides in a Missouri case
whether 16- and 17-year-old killers are too young for the death
penalty. "It's like it's never going to end," Melissa Pena said
Friday of the long vigil she and husband Adolph Pena have kept over
their daughter's killers. "I'm just kind of shocked."
Melissa Pena said the Supreme Court case will be
"just another hurdle for us to jump through." It would have been
nice, she said, if her daughter had been given 10 years to argue for
her life. "Where were her appeals?" she said.
Fate of state's youngest killers in justices'
hands 28 murderers on Texas' death row will live or die by court's
ruling in Missouri case
10/13/04
WASHINGTON - The murders are brutal and hideous.
The murderers are 16 or 17. And the question before the U.S. Supreme
Court today in a case from Missouri is whether, like mentally
retarded killers, young killers should be spared execution under the
Constitution's ban against "cruel and unusual punishment."
Awaiting the justices' ruling, expected by next
summer, are 28 killers on Texas' death row who were 17 at the time
of their crimes and will live or die by the decision, and the
families and friends of their victims, many of whom insist the
ultimate punishment must be carried out. "It would have been fine
with me if they had gotten life without parole, but we're in Texas
here, and they get execution," said Houstonian Adolph Peña, whose
16-year-old daughter, Elizabeth, and her 14-year-old friend Jennifer
Ertman were gang-raped, sodomized, and strangled with a belt and
their shoelaces on their way home one night in 1993.
One of the rapists was 14 and was sentenced to
prison. The girls' five killers - two of whom were 17 at the time -
were sentenced to death. Efrain Perez, who admitted raping and
strangling Elizabeth Peña, and Raul Omar Villarreal, who bragged
that he stepped on Ertman 's neck when she didn't die fast enough,
are now 28 and 29, respectively.
Their executions were scheduled back-to-back for
June, but were put on hold pending the Supreme Court's decision. "They
knew exactly what they did to my daughter," Peña said as he prepared
to travel to Washington to hear today's arguments in the Missouri
case. "I think of that every day, and I say, `Hey, they are going to
die, too.' But I wish my daughter could have been put to death like
that, with lethal injection. . . . Any man, in my book, would stand
up and take what he's got coming."
The problem, say those opposed to executions for
the nation's youngest death row inmates, is that the murderers
weren't adults when they committed their crimes, but adolescents
still developing. They plan to argue today that young killers, like
many mentally retarded killers, know right from wrong.
But their brains are immature, making them
biologically incapable, in many cases, of controlling their impulses
and thinking through the consequences of their behavior, and are
therefore less blameworthy than adults who commit the same crimes.
"Adolescents
engage in harmful, aggressive, stupid behavior - but it passes" when
they grow up, said Dr. David Fassler, a child psychiatrist who
opposes the death penalty for those under 18 because of new research
indicating the brain is still developing in teenagers. That doesn't
mean they shouldn't be held accountable for their crimes, Fassler
said.
They should be punished severely, he said, but
they should be spared the needle. "Junk science mumbo-jumbo,"
counters Dianne Clements, president of Justice For All, a pro-death-penalty
group in Houston that filed a "friend-of-the-court" brief supporting
Missouri.
"The five murderers that killed Jenny and Elizabeth just
didn't know what they were doing when they raped them and strangled
them? That's outrageous. That is just a pathetic argument and those
scientists, or those anti-death-penalty doctors, should be ashamed."
The high court last reviewed the issue of
executing juveniles in a Kentucky case in 1989. At that time, the
justices OK'd executions for killers as young as 16. Under Texas law,
killers as young as 17 may be executed. In a 6-3 ruling in a 2002
case, Atkins v. Virginia, the justices said 31 states that once
allowed executions of the mentally retarded indicated a significant
change of heart and became opponents of the practice.
Today, the court considers the case of
Christopher Simmons, who was 17 when he and a young accomplice broke
into the Fenton, Mo., home of a woman in 1993, bound her with
electrical tape, drove her to a railroad bridge and pushed her off,
leaving her to drown.
After the court's decision in Atkins, a Missouri
court used the high court's reasoning on the mentally retarded case
to overturn Simmons' death sentence because of his youth. The death
penalty supporters on the bench are Chief Justice William Rehnquist
and Justices Antonin Scalia and Clarence Thomas.
Four justices - John Paul Stevens, Ruth Bader
Ginsburg, Stephen Breyer and David Souter - have written in court
papers that the practice of executing juveniles is "a relic of the
past" and a "shameful practice." Justice Sandra Day O'Connor and
Justice Anthony Kennedy both voted against the death penalty with
regard to mentally retarded killers.
TEEN KILLERS
Capital murderers who were 17 or older at the
time of their crimes can be executed in Texas. Since 1982, the state
has executed 12 such killers. 28 now on Texas death row.
Two inmates on Texas death row given reprieves
Expected ruling on juvenile crimes affects two other Harris County
cases
03/13/04
CORRECTION: Because of an editing error, this
story misstated the number of Texas death row inmates who committed
their crimes when they were younger than 18 and whose executions are
scheduled.
Although the U.S. Supreme Court recently stayed
the execution of Edward Capetillo and Harris County prosecutors say
they will ask judges to withdraw the execution dates for Raul
Villareal and Efrain Perez, a fourth inmate, Mauro Barraza, is still
scheduled to die on June 29. Correction published 3/16/04.
The U.S. Supreme Court's order to postpone the
lethal injection of a Harris County man who committed murder when he
was 17 has spurred local prosecutors to back away from the scheduled
executions of two other inmates with similar cases.
The three Harris County killers who were
scheduled to die this year will get a reprieve until after the
Supreme Court considers whether the death penalty is constitutional
for juvenile crimes. They were the only inmates in the nation with
scheduled executions for murders committed when they were younger
than 18.
The high court last week stayed the execution of
Edward Capetillo, who was scheduled to die on March 30 for a 1995
robbery and double murder. His attorney had urged the court to put
off the execution until it hears a Missouri case in October.
In the wake of Capetillo's successful appeal,
Harris County prosecutors say they will ask judges to cancel the
execution dates for Raul Omar Villarreal and Efrain Perez, who were
set to die on June 24 and 25, respectively.
Both men were 17 when they raped, kicked, stomped
and strangled Jennifer Ertman and Elizabeth Pena in northwest
Houston as the two high school students walked home one summer night
in 1993. "We will wait and, obviously, see what the U.S. Supreme
Court does," Assistant District Attorney Jane Scott, who is handling
Perez's appeal, said Friday. "If we took any other action, we would
be pursuing an execution that we know would probably eventually be
stayed."
District Attorney Chuck Rosenthal said in January
that he intended to pursue the executions on this year's calendar
despite the Supreme Court's plan to consider the Missouri case, in
which a death sentence was overturned because the defendant was 17
at the time of the murder.
The prosecutors' new position came as a surprise
to some in Houston. "The general policy of the DA here is to force
the lawyers representing the death row inmates to do everything
possible to obtain relief, whether temporary or permanent," said
David Dow, a professor at the University of Houston Law Center who
also represents condemned inmates.
But others outside of Texas said the prosecutors
have little choice. "The writing is clearly on the wall: The Supreme
Court is going to grant stays in these cases until it has heard the
issue at hand," said Richard Dieter, director of the Death Penalty
Information Center in Washington, D.C. "That is, whether they can
execute juvenile offenders."
Harris County prosecutors may be showing some
deference to the nation's highest court, which has heard numerous
capital appeals from Texas in recent years, Dieter said. "You don't
want to be in defiance of the Supreme Court," he said. "When a
signal is sent, it's good to take the hint and not have to be
shouted at."
Prosecutors had opposed the initial request for a
stay in January from Capetillo's attorney, Elizabeth DeRieux of
Longview, and state District Judge William Harmon ordered that
Capetillo be executed as scheduled. DeRieux then went to the high
court, and Justice Antonin Scalia signed the order staying the
execution last week.
Capetillo, now 26, was 17 when he and two other
teens killed Matt Vickers, 19, and Kimberley Williamson, 20, during
a robbery at a Champions Park home in January 1995.
The Supreme Court has repeatedly found the death
penalty to be constitutional, but has imposed limits on its use. It
ended capital punishment for rapists in 1977 and for those judged
insane in 1986.
Two years ago, the court barred executions of
people with mental retardation. The justices look at "evolving
standards of decency that mark a maturing society" to determine what
punishments are too extreme, according to a 1958 ruling.
The Texas attorney general's office maintains
that the question of whether a death sentence is appropriate for a
crime committed by someone under age 18 should be decided by juries
on a case-by-case basis.
A sweeping ban on executions in all such cases is
beyond the Supreme Court's authority, according to Texas' state
attorneys, who handle death row appeals in federal court. "It is the
job of the courts to identify `evolving standards of decency,' not
to create them by judicial fiat," Assistant Attorney General
Margaret Schmucker wrote in a Supreme Court brief opposing
Capetillo's stay.
OTHER TEEN KILLERS
Harris County prosecutors say they will ask
judges to cancel the execution dates for Raul Omar Villarreal and
Efrain Perez. The two Houston inmates were scheduled to be executed
on June 24 and 25, respectively. Both men were 17 when they raped
and murdered two teenage girls - Jennifer Ertman and Elizabeth Pena
- in northwest Houston in 1993.
High court to revisit age in executions Debate
pits scientific data against horror of crimes
02/29/04
Convicted killer Raul Villarreal groped for words
to explain the inexplicable: how a kid who had never been in serious
trouble with the law could take part in murders so horrible they
shocked a city all but numb to crime reports.
He mentioned the mob mentality that overwhelmed
the group of young men after a night of drinking and fighting. But
he had no real answer for why he participated in the rape and murder
of two high school girls, seemingly aware that anything he could say
would sound like an excuse.
"I look back on all that and carry a lot of guilt,"
Villarreal said behind the sheet of Plexiglas that separates inmate
and visitor on Texas' death row. "It's one of the things I struggle
with when I think about whether I deserve to be here. I know these
are the consequences of decisions I made. I just don't think I was
mature enough to make a wise decision, especially under the pressure
of what was going down at the time."
Immaturity is a subject close to the heart of any
parent of a teenager; in the next few months, it will become fodder
for the U.S. Supreme Court. For the first time since 1989, when it
set 16 as the minimum age for the death penalty, the high court will
wrestle with whether inmates who committed crimes while 16 or 17
should be executed.
The argument will pit believers in retributive
justice and the deterrent effect of executions against child welfare
experts and scientists specializing in human brain development.
Villarreal, who is scheduled to die June 24, was
17 when he and five others raped, kicked, stomped and strangled
Jennifer Ertman and Elizabeth Pena as they made their way home in
northwest Houston on a summer night in 1993.
A young 17, he says. He had never spent much time
on his own, held down a steady job or had a serious girlfriend. He
never really thought about the future. The justices will be
inundated with medical research suggesting that offenders such as
Villarreal deserve lenience, no matter how serious the crimes
committed.
Much as advocates claimed that mental retardation
should reduce criminal culpability, those who oppose executing
juvenile offenders will argue there is an emerging scientific
consensus that even 16- and 17-year-olds are not the emotional or
intellectual equivalent of adults.
"The reason we ought to abandon the juvenile
death penalty is not because I am a bleeding-heart liberal - I'm not,"
said Laurence Steinberg, a Temple University psychologist who
specializes in adolescent development and juvenile justice. "It's
because the science says it's a bad practice."
Steinberg cites repeated psychological testing he
has done of young people regarding impulse control, thinking ahead
and understanding the consequences of what they are doing.
Performance keeps improving into early adulthood, he said. It does
not plateau in adolescence.
Over the last two decades, researchers at Harvard
Medical School, the National Institute of Mental Health and other
institutions have used magnetic resonance imaging to chart the
development of different regions of the human brain.
One of the most surprising discoveries was that
the frontal lobe undergoes significant change in the years 12 to 22.
Because that part of the brain has great bearing on judgment and
control of impulses and aggression, there is an important connection
to criminal behavior in teens.
Adolescents may look mature, but often they are
making decisions and evaluating consequences using different parts
of the brain - those associated with emotions - than adults in the
same circumstances, researchers have learned. "Understanding of
context, possibilities, future consequences of what they are about
to do is not there," said Ruben Gur, chief of the Brain Behavior
Laboratory at the University of Pennsylvania Medical Center. "If you
talk to them later, they can understand it. But the information gets
there a little bit too late, and the consequences can be devastating."
Gur attributes the lapses in part to the
uncompleted process of myelineation, in which fat tissue, often
referred to as white matter, grows around the pathways that conduct
the exchange of information between different parts of the brain.
This insulation is essential for proper
functioning of the brain's circuitry. A related process called
pruning also continues during adolescence to clear away unused brain
cells and connections. When that is done, the brain works more
efficiently.
Gur said the research is at odds with current law
or any likely revision of it. "Scientifically, if you want to make a
line in the sand, 21 or 22 would be more reasonable than 18," he
said. "And 18 is more reasonable than 16, certainly. For the average
person, that maturation process is complete between 21 and 22. That
would be the biological definition of adulthood in the brain."
The matter of executing juvenile offenders landed
in the Supreme Court's lap when the Missouri high court overturned
the death sentence of Christopher Simmons in August.
The Missouri justices concluded that condemning
those 16 and 17 is no longer in keeping with prevailing opinion or
common practice, employing similar logic to that used by the Supreme
Court two years ago when it banned execution of the mentally
retarded.
Missouri prosecutors appealed, and the Supreme
Court was all but forced to decide whether the state court's use of
the so-called Atkins rationale, the one it used in the mental
retardation ruling, is correct. Fewer than 80 juvenile offenders are
among the 3 ,500 inhabitants of the nation's death rows. But 26 of
those are in Texas, which leads all states in juvenile offenders
executed with 13.
The small number of inmates affected is used by
both sides as ammunition. Those who argue against executing them say
banning the practice would do nothing to undermine the purported
benefits of capital punishment because few would notice.
Proponents, however, say that because the cases
are so few and the interest of justice so profound it is reasonable
to allow juries to consider a defendant's maturity on a case-by-case
basis. "I know 17-year-olds who are more mature in every way than
some 25-year-olds," said Dudley Sharp, a policy analyst for Justice
For All, a Houston-based victims rights organization. "It should be
up to the jury to decide whether the individual is fully culpable
for the crime they have committed."
True, Steinberg countered, but when dealing with
an irrevocable act such as execution, it is better to err on the
side of caution. "I'm not saying 18 is a magic number," Steinberg
said. "Under the law, at some point, we just pick an age above which
we say we don't care if you're immature - you're old enough. Of
course, there is going to be variability on either side of the line.
We live with it. "But if we have to pick our best guess where to
draw the line, it seems to me that if we are going to say a person
who is 16 is not mature enough to see an R-rated movie, sign a lease
or buy a car, I don't see how we can say he is mature to be held to
the adult level of criminal responsibility."
Villarreal had no hope for reprieve until the
Supreme Court decided to review the Simmons case. He has expressed
remorse for his role in the Ertman and Pena murders, but he knows
that only a landmark ruling can save his life. "It was an impulse, a
reaction in the moment," Villarreal said. "When you are young, there
are things that don't cross your mind. My whole situation has made
me change my way of thinking and change who I am. I was a different
person. I've experienced a little bit of life now, even in here."
CASES IN THE STATE
Texas law allows the death penalty to be used on
anyone who committed a crime when they were 17 or older. The state
leads the nation with 28 juvenile offenders on death row.
Five of those recently have been given execution
dates, though one, Anzel Jones, received a stay last week by the U.S.
Supreme Court.
Mauro Barraza (Tarrant County): In 1989, he broke
into the Haltom City home of 73-year-old Vilorie Nelson. He hit the
woman in the head with garden shears, cut her throat and stomped on
her chest. His robbery netted costume jewelry and a carton of
cigarettes.
Edward Capitello (Harris County): In 1996, he led
three others in the robbery and murders of Matt Vickers and Kimberly
Williamson in a Champions Park home. A third victim, Grant Barnett,
was shot but escaped.
Anzel Jones (Grayson County): In 1995, Jones
broke into the Paris home of Sherry Kay Jones and her mother, Edith
Jones. The women offered him $125. He took the money, then stabbed
both before setting the house on fire. The older woman lived.
Efrain Perez and Raul Villarreal (Harris County):
In 1993, both were part of a group of six young men that abducted,
raped and murdered Waltrip High School sophomores Jennifer Ertman
and Elizabeth Pena. The group had been drinking and fighting in a
northside park when the pair was spotted walking along railroad
tracks nearby. Five of the six attackers received the death penalty.
The sixth was ineligible because he was too young.
High court will rule on under-18 killers Capital cases from
Harris County could be affected
01/27/04
The decision echoed loudest in Houston. The U.S. Supreme Court
said Monday it will consider whether to ban as "cruel and unusual
punishment" the execution of murderers who were younger than 18 when
the crimes took place.
The move stems from a Missouri case, and the
court is expected to settle the issue sometime after October. But in
the entire nation, experts said, only three such killers are
scheduled for execution on specific dates. All are from Harris
County. Efrain Perez and Raul Omar Villareal are set for lethal injection in June for their role in the notorious
1993 gang-ritual rape and murder of teenagers Jennifer Ertman and
Elizabeth Pena.
Edward B. Capetillo is scheduled to die March 30 for
a 1995 slaying. Most likely, those executions will be postponed
until the top court rules, legal experts said. Twenty-three other
Texas inmates await execution, without set dates yet, for crimes
they committed as 17-year-olds.
Texas limits execution to those 17
or older, while some other states also make 16-year-olds eligible
for capital punishment. Outside of Texas, about 50 other U.S.
inmates await execution for crimes committed at 16 or 17.
Of the 22
such youthful killers executed across the country since 1973, 13
were put to death in Texas, according to Ohio Northern University
law professor Victor L. Streib. But in Texas, which leads the nation
in executions, only 4 percent of the inmates put to death were
classified as juvenile murderers.
Predictably, death penalty
opponents hailed the court's decision to re-open the constitutional
issue of proper punishment for teen killers while victims' advocates
shook their heads.
David Atwood of the Texas Coalition to Abolish
the Death Penalty said 17-year-olds are not able to take
responsibility for their crimes the way adults can, and therefore
should be exempt from the death penalty. "Teenagers do things that
are spontaneous, without thinking," he said in Houston, being sure
to add that the organization does not try to minimize the horror of
the crimes.
Randy Ertman , father of 14-year-old murder victim
Jennifer Ertman , said killers should be judged by their acts rather
than their age, and that the court's re-opening of the issue is
unneeded. "After our daughters were kidnapped, robbed, raped,
sodomized and murdered, I am disappointed in the (national) criminal
justice system," Ertman said. "But I am very happy with the way the
system works in Texas, and I thank the people of Texas for standing
behind us."
Texas victims advocates pointed out that juries are
allowed to consider a killer's age when deciding whether the
punishment should be life in prison or death. Supreme Court justices
vote in secret on whether to accept a case, and at least four of the
nine must say yes for a case to be heard on appeal.
In 2003, four
justices wrote that it is shameful to execute juveniles. "The
practice of executing such offenders is a relic of the past and is
inconsistent with evolving standards of decency in a civilized
society," Justice John Paul Stevens said. He was joined by David H.
Souter, Ruth Bader Ginsburg and Stephen Breyer.
The statement came a
few months after the court ruled 6-3 to ban as unconstitutional the
execution of the mentally retarded. The appeal from Missouri stems
from the case of Christopher Simmons, who was 17 when he and a young
accomplice broke into the Fenton, Mo., home of a woman in 1993.
They
bound her with electrical tape and pushed her off a railroad bridge
to drown. Simmons told teenage friends that they would avoid
punishment because of their young ages, prosecutors said.
A Missouri court overturned Simmons' death sentence, adopting Supreme Court
thinking on its ban on executing the mentally retarded. Missouri and
Texas are among 21 states that allow the execution of convicts under
18. It is banned for capital crimes prosecuted in federal courts.
The Texas attorney general's office would not comment on why it has
not joined the legal arguments in the Simmons case in support of the
death penalty for 17-year-olds. Nor would it comment on the Texas
cases that could be affected.
In Harris County, Assistant District
Attorney Roe Wilson said prosecutors will review the local cases to
see if they should ask that the execution dates be postponed.
If the
Supreme Court preserves the death penalty for young killers, a
postponed execution could be carried out more quickly than if the
original date was halted by Supreme Court order, Wilson explained.
The execution of Napolean Beazley in May 2002 drew internal
criticism of Texas for allowing such punishment. He was 17 when he
committed a 1994 murder in Tyler.
Lawyer Walter Long, who
unsuccessfully asked for Beazley's punishment to be blocked, said it
is fascinating that the Supreme Court will decide on the clashing
approaches to the law in Texas and Missouri. "Two different states,
two different results," he said of the Beazley and Simmons cases.
Now that Beazley is dead, he said, the Supreme Court action "is
ironic, I guess."
Dianne Clements of Houston, president of Justice
for All, took a different view as someone who favors the death
penalty option for the worst young offenders.
She said that if the
Supreme Court bans the punishment, it will be saying it doesn't care
about victims' survivors. "If the ultimate outcome is that
defendants who are 17 are not eligible to be executed, then we have
taken an entire process and completely dismantled it," she said.
TRIO FROM COUNTY AWAIT EXECUTIONER
Three inmates from Harris County are the only ones in the nation
with execution dates set for crimes they committed while 17,
according to experts.
Edward Brian Capetillo, 26, former laborer
born in Harris County; March 30 execution date. Convicted in 1996 as
one of five men who killed two young Houston adults in their home
after the victims refused to buy a gun and a scale.
Efrain Perez,
28, former painter born in Cameron County; June 23 execution date.
Convicted in 1994 as one of six young men who committed the rape and
murder of Jennifer Ertman and Elizabeth Pena in Houston. Admitted
raping and strangling Pena.
Raul Omar Villareal, 28, former
carpenter born in Harris County; June 24 execution date. Convicted
in 1994 in the Ertman-Pena murders. Bragged that he stepped on
Ertman's neck.
Second execution is set for deadly anniversary Two teens raped,
killed in 1993
12/09/03
Back-to-back executions next summer will mark the anniversary of
the 1993 gang-ritual rape and murder of two Houston girls. Efrain
Perez, 28, on Monday was the second man scheduled for lethal
injection for his role in the killings of 14-year-old Jennifer
Ertman and 16-year-old Elizabeth Pena.
The girls were walking home
through a wooded area on June 24, 1993, when they were sexually
assaulted, beaten and strangled. State District Judge Jim Wallace
set Perez's execution for June 23, 2004.
He chose the date in part
because, last month, another judge set the execution of Raul Omar
Villarreal for the following day to coincide with the 11th
anniversary of the killings. Wallace said he was thinking of the
victims' families when he set Perez's execution. "I wanted to put
the two days together so the families, if they are there, would not
have to make two separate trips," Wallace said.
Five men were
convicted in the crime that shocked the city and sparked a change in
the way Texas' criminal justice system deals with victims' families.
Perez maintained his innocence Monday when he appeared in court in a
prison-issue orange jumpsuit. "I never killed nobody," he said. "And
if I did, after all the things that I've been through . . . I would
tell you that I did, and I'd even apologize for it. But I didn't."
Perez has exhausted nearly all of his appeal options but still has a
standing request for a hearing before the U.S. Supreme Court.
Perez's attorney, Kevin Dunn, was unavailable for comment. Randy
Ertman , whose daughter was killed in the gang attack, said he plans
to attend the executions and hopes that another of the five men,
Jose Medellin, also can be scheduled for execution next summer. "I
like this," Ertman said. "We've got to get the other one on (June)
25th and we're set."
Medellin, who was 18 at the time of the murders,
is expected to be sentenced in 2005. The remaining two men convicted
of capital murder in the girls' deaths, Peter Cantu and Derrick
O'Brien, both also 18 at the time, are expected to be executed in
2006.
The death chamber in Huntsville can accommodate more than one
execution in a day, said Michelle Lyons, spokeswoman for the Texas
Department of Criminal Justice.
But prison officials discourage
scheduling more than one per day because of the logistics, such as
providing a last meal and visits by relatives and the chaplain, said
Harris County Assistant District Attorney Jane Scott.
Pena and
Ertman were high school sophomores walking home late at night near
White Oak Bayou and T.C. Jester Park, on the northwest side, when
they happened upon the group of young gang members engaged in a
violent initiation.
The girls' bodies were found four days later.
The gang members were arrested after police received a tip. It was a
landmark case for victims' rights advocates. Cantu's trial was one
of the first in which a judge permitted a victim's relative to speak
directly to a convicted murderer.
Although criticized at the time,
the practice is common today. The state also had prohibited victims'
family members from viewing executions, but that policy has also
been changed.
Victim's dad, death penalty foe in heated debate
11/17/03
PERHAPS DAVID ATWOOD picked a touchy time to debate the death
penalty with Randy Ertman. Atwood, of the Texas Coalition to Abolish
the Death Penalty, was hanging out on the eighth floor of the Harris
County Criminal Justice Center last week, right after a judge set an
execution date for one of the men who raped and killed Ertman 's
daughter.
"You're not proving anything with the death penalty,"
Atwood told Ertman. "You're just repeating what was done to your
daughter." "I think he's a piece of crap who deserves to die,"
Ertman told Atwood, referring to his daughter's killer, Raul
Villarreal.
Ertman was on his way out of the courtroom, where he had
just saluted Judge Mike Anderson for setting Villarreal's execution
date for June 24, the 11th anniversary of the rape and murder of
Ertman's 14-year-old daughter, Jennifer, and her 16-year-old friend,
Elizabeth Pena.
"The death penalty's not good for anybody," Atwood
told Ertman, a painter. "Well, it's good for me," Ertman said,
looming over Atwood. "It's vengeance," Atwood said. "I'm not into
vengeance," Ertman said. "You are, too, into vengeance," Atwood
insisted. "If you've got something to say to me, you want to say it
outside?" Ertman asked.
The exchange was broken up by bystanders and
the two parted without further incident. "We also care very much for
the victims of crime and their family," Atwood explained afterward.
"But sometimes they are so angry, they will totally reject any type
of concern that we might have."
Judge schedules execution for murders of 2 teen girls Date to
be on anniversary of deaths
11/12/03
A judge Tuesday announced the first execution date to be set in
the brutal 1993 murders of two teenage girls, Jennifer Ertman and
Elizabeth Pena, who stumbled onto a gang initiation while walking
home.
Raul Omar Villarreal is to die on June 24 - the 11th
anniversary of his victims' deaths. "You committed a crime against
two young girls and against the entire community on the 24th of June,"
state District Judge Mike Anderson told Villarreal, who stood before
the bench in handcuffs and an orange jail jumpsuit.
Because his
crime had made the girls' families and friends "dread the coming of
June 24," Anderson said, "I am setting that date for your execution.
That may give you some idea how they feel about that date."
Asked if
he had anything to say, Villarreal replied, "No sir." Jennifer's
father, Randy Ertman, tossed Anderson a salute. Ertman, 14, and
Pena, 16, both high school sophomores, were taking a shortcut home
from a party when they happened upon Villarreal and five other young
men, ages 14 through 18, near railroad tracks in a wooded area of
northwest Houston.
The girls were sexually assaulted, beaten and
strangled with a belt and a shoelace. Their bodies were found four
days later. A Crime Stoppers tip led to the arrests. he case was a
landmark for families of crime victims.
Largely through the efforts
of Randy Ertman, the parents won the right to make statements in
court to their daughters' murderers, and to witness the executions.
Both are now common practice for most courts. Outside the courtroom,
Ertman said he and his wife, Sandy, will attend Villarreal's
execution in Huntsville. Elizabeth's parents, Adolph and Melissa
Pena, said they will be there, too. "It seems kind of fair for him
to go down the same day our daughters did," Randy Ertman said. "He's
going down a lot easier, but I think it's pretty good for the judge
to do that. "This is why we have a death penalty. He deserves to be
executed, and now he's going to be," Ertman said.
After waiting 10
years, he said, "six months ain't nothing." Adolph Pena agreed. "It's
been a long time coming, but I feel good," he said. "I've been
looking forward to this a long, long time." Ertman, a house painter,
now lives with his wife at Lake Somerville.
Pena, who does drywall
work, and his wife live near Hockley. Villarreal's mother, Luisa,
choked back tears and declined to comment. But Dave Atwood, of the
Texas Coalition to Abolish the Death Penalty, said, "Every time we
have an execution, we create another set of victims. Luisa and her
family are now the other set of victims . . . It just keeps this
cycle of vengeance and violence going."
Villarreal's attorney, John
Wynne, said he will appeal to the U.S. Supreme Court on grounds that
his client, now 28, was a 17-year-old juvenile at the time of the
murders. But Wynne said the high court in 1989 held that it is
constitutional to execute defendants who were juveniles when they
committed their crimes.
Crime victims advocate Andy Kahan said
execution dates are expected to be set for 2005 for defendants
Efrain Perez and Jose Medellin, who were 17 and 18, respectively, at
the time of the killings, and in 2006 for Peter Cantu and Derrick
O'Brien, both 18 at the time. Another juvenile, Venancio "Vinny"
Medellin, who was 14, is serving a 40-year sentence as a juvenile.
OTHER DEFENDANTS
Possible execution dates for others in the case:
2005 for Efrain Perez, Jose Medellin
2006 for Peter Cantu, Derrick O'Brien
Venancio "Vinny" Medellin is serving a 40-year sentence.
TEENAGERS' LEGACY
Double murders changed Texas law
06/25/03
Adolph and Melissa Pena rarely have to wait long for another
reminder of what might have been. In their home they have photos of
a smiling, teenage girl with long, curly hair cascading over her
shoulders.
And then there are the occasional visitors, whose
presence revives happy thoughts of that girl, and painful memories
of a life cut short. "Friends of hers still come over to see us,"
Adolph Pena said. "Some of them have babies now."
The Penas'
daughter, Elizabeth, was 16 when she and a friend took a shortcut
home from a party 10 years ago and unwittingly walked into a drunken
gang initiation in northwest Houston.
Their badly mauled bodies were
found four days later, leading to a real-life horror story that hit
the city, and even the nation, like a kick in the gut.
The vicious
murders of Pena and 14-year-old Jennifer Ertman led to major changes
in how the criminal justice system deals with crime victims and
their families. It also gave momentum to the victims' rights
movement.
Five men remain on death row and another is serving a
prison sentence for their roles in the murders. "I'd like to have
been a grandpa, but those sons of bitches took that away from me,"
Adolph Pena said this week.
The two girls, sophomores at Waltrip
High School, were walking home on the night of June 24, 1993, when
they took a shortcut down a trail near White Oak Bayou and T.C.
Jester Park. hey walked into the midst of the Black and White Gang,
a small, violent group of teens who were initiating 17-year-old Raul
Omar Villarreal.
To join the gang, Villareal had to fight members
Derrick Sean O'Brien, Peter Anthony Cantu and Jose Ernesto Medellin,
all 18, and Efrain Perez, 17. Medellin had brought his brother,
Venancio "Vinnie" Medellin, 14.
The group had been drinking heavily
when the girls walked up, police said. Ertman and Pena were
subjected to every kind of sexual assault, police said, before being
beaten, kicked, stomped and strangled with a belt and a shoelace.
The deaths were the 250th and 251st homicides in a year that totaled
497, but the police and prosecutors who worked on the case will
never forget them, said Harris County Assistant District Attorney
Kelly Siegler. "They were horrible," she said. "Those pictures - all
of us were seasoned prosecutors, and they were the worst any of us
had ever seen."
The adult defendants were convicted and sentenced to
death. Vinnie Medellin received a life sentence. A major precedent
was set at the end of Cantu's trial, when state District Judge Bill
Harmon allowed Ertman's father, Randy, to address the convicted
murderer.
His blistering comments shocked many onlookers and
outraged a few. Harmon was castigated by fellow judges and newspaper
editorials for allowing the display.
But while few people knew it,
victim impact statements were allowed by the Crime Victims' Bill of
Rights, which the Legislature adopted in the late 1980s. "It was the
law at the time," Harmon said recently. "I wish I could say I was
smart enough to know that.... It just seemed like the right thing
to do."
Harmon said he believed the parents deserved the right to
speak after conducting themselves with dignity through days of
gruesome testimony. He made the same offer to Adolph Pena, who
declined in Cantu's case but later made statements after other
trials.
Andy Kahan, director of the Houston Victims' Assistance
Center, hailed Harmon's decision as the start of a statewide trend.
Kahan recalls that, after Harmon told Ertman he could address the
killer, one of the deputies in the courtroom told Kahan that they
would give Ertman a few minutes and, "If he comes over the rail,
we'll give him a few more."
Ertman declined to be interviewed for
this article, except to praise Kahan as "a good man." Adolph Pena
said the statements he made in court helped, but true closure won't
come until he sees his daughter's killers executed. "Unless I'm dead,
I'll definitely be there to see them die," he said. "It just seems
to go on forever," he said, noting that no execution dates have been
set. "I met a woman in Parents of Murdered Children who waited 20
years. God forbid it takes that long."
Another change that resulted
from the Ertman-Pena case was the decision to allow victims'
relatives to witness executions. Randy Ertman expressed such a
desire after Cantu's trial, but Kahan said he found that victims'
families, along with prison inmates, were prohibited from viewing
executions.
With help from the then-fledgling group Justice for All,
Kahan said, two sponsors were found for a bill that would change
that. It died without coming to a full vote, however. Kahan, the
Ertmans and the Penas then went to the Texas Board of Criminal
Justice, which voted unanimously to change the policy.
Today, Kahan
said, about 75 percent of executions are viewed by victims' families.
"The Ertman-Pena legacy will live on in this state," he said.
PRECEDENTS SET
Victim impact statements: Although a 1980s state law allowed the
statements, few people knew about the provision until state District
Judge Bill Harmon allowed Randy Ertman to address killer Peter Cantu
after Cantu's conviction.
Victims' relatives witnessing executions:
Ertman and Adolph Pena expressed a desire to witness the executions
of their daughters' killers. Victims' rights advocates helped to get
the prison system's policy changed, and now most executions are
viewed by victims' families.
Killer stabs guard with metal spear
Investigation of incident
under way
07/02/99
Efrain Perez, a young Houston killer once described by a
prosecutor as "a predatory animal," stabbed a death-row guard with a
homemade spear, a prison official said Thursday.
The guard,
identified as Curt Jarry, 30, was hospitalized. Jarry was walking
past Perez's cell at the Ellis Unit near Huntsville around 7 p.m.
Wednesday when he was stabbed in the left forearm by a piece of
sharpened flat metal attached to a full-length broom handle,
according to prison officials.
They said Perez, 23, thrust the spear
through a hole torn in the wire mesh across the front of his cell.
Jarry was taken to the prison medical unit and later transferred by
ambulance to Huntsville Memorial Hospital.
Texas Department of
Criminal Justice spokesman Glen Castlebury said the officer
underwent surgery Thursday to repair nerve damage to the arm.
Castlebury said an internal affairs investigation is under way to
determine how Perez obtained the metal piece used to fashion the
blade of the spear, how long it had been in his cell and if it had
been overlooked during inspections.
The attack by Perez occurred in
the same unit where seven inmates staged a daring escape attempt by
using a hacksaw to cut their way out of a recreation yard last
November.
One of them, Martin Gurule, made it outside the prison but
was found dead a week later floating in a creek not far away. Last
Sunday a convicted murderer from Dallas escaped from the Estelle
high-security prison, located not far from the Ellis Unit.
That
inmate, Clifford Jones, 33, slipped his hand out of handcuffs and
shoved a guard away. He was captured two days later. Perez was 18
years old when he was convicted, along with four other Houston men,
of murdering two teen-age girls in a gang initiation ritual in 1993.
The girls, Jennifer Ertman, 14, and Elizabeth Pena, 16, were walking
home near T.C. Jester and West 34th Street when they came upon Perez
and the others, who were drinking and beating a new gang member as
part of his initiation.
The girls were raped, strangled, kicked and
stomped to death. Arguing for the death penalty at Perez's trial,
prosecutor Marie Munier told the jury he was "a predatory animal and
Houston and Harris County was his roaming ground."
Life in prison,
she said, would not declaw him. "Just because you put him in a cage
doesn't make him any less a predator," she said. "You stick your
hand in a lion's cage and he's going to try to scratch it."
FIVE YEARS LATER
For families of young murder victims, living
getting a bit easier
06/28/98
THE fifth anniversary of his daughter's vicious murder mostly
means one thing to Randy Ertman - he is five years closer to
watching her killers die.
On June 25, 1993, his daughter, Jennifer,
14, and her friend, Elizabeth Pena, 16, were sexually assaulted,
beaten and strangled by a gang they happened upon as they hurried
home from a party.
The girls, both high school sophomores, were
strangled with a belt and a shoelace after stumbling upon the gang's
initiation ceremony. Now, five years later, the Ertmans and the
Penas say day-to-day living is finally getting a bit easier.
The
sadness is far from gone, but it's not all-consuming anymore.
Anniversaries of their deaths always bring up the old emotions. For
Ertman, 46, it's still rage. "I'm five years closer to seeing those
pieces of dog dung die," he said, while putting his cigarette butt
into his third drained beer bottle of the afternoon. "I'd pull the
switch in a New York minute."
The anger, however, stays dormant in
his mind until people ask about his girl, his only child. He said
the madness doesn't burn inside like it once did.
These days Ertman
and his wife, Sandy, 55, worry about more mundane things, like
finding the day's good fishing spots and keeping pesky deer away
from their fledgling tomato plants. They laugh and have fun together
again.
He works as a painter and they live on three-quarters of an
acre in the peaceful country in Lyons, miles and miles away from
their Heights-area neighborhood where there are constant reminders.
There's the bayou where the teens had the misfortune of taking a
shortcut across railroad tracks as a gang was finishing its
initiation "ceremony" - the beating of an inductee.
The girls'
partially decomposed bodies were found near White Oak Bayou and T.C.
Jester Park four days later. Since then the Ertmans and Melissa and
Adolph Pena have tried to survive the grief of losing a child in one
of the city's most vicious crimes.
The families endured the graphic
testimony in five separate capital murder trials, where all five
were sentenced to die. Another defendant, a juvenile, is serving 40
years. Over and over again they listened to the confessions, which
detailed the hour-long torture of the girls.
Now the families can
think of the girls differently, as the happy-go-lucky, innocent
girls they were when they were alive. Others will join the families
in remembering the girls in a short memorial service at 6 p.m. today
near the benches on the south side of T.C Jester Park.
Victims
rights volunteers organized the memorial with the parents blessings,
however, Sandy Ertman said she will not be there. She said it is too
painful. Hardly a person who read or heard about the crime has
forgotten the details. There is still disbelief that six young men
could be so vicious - egging each other on like a pack of wolves.
Prosecutors, police officers and victims rights activists - who are
regularly exposed to gruesome crimes - say their lives still are
affected by the murders. The Ertmans, who moved into a small, yellow,
country home near Somerville four months ago, do not talk much about
the murders anymore.
They can relax with a short walk to a pond, and
an even shorter walk to the shaded porch. "We are not escaping,"
said Sandy Ertman. "We just changed our lives."
In the old house,
there was a photographic shrine to Jennifer. In the new house, there
are two pictures on display. Neighbors don't know about the killings
unless they notice Randy Ertman's tattoo shrine to his daughter on
his arms.
On one arm is a rising sun with Jennifer's name and birth
date. On the other is the Grim Reaper with the date of her death.
Living in the country has offered them a hideaway from the anger and
bitterness that simmered as they sat through the trials. "I was
getting eaten up with rage and revenge," said Randy Ertman. "I was
tired of death."
But he never tires of talking about the death of
the perpetrators, expected to be executed in the next five years. He
is obsessed with their deaths. He plans to quit smoking this year so
he can live long enough to witness each one of them receive the
lethal injection.
Ertman even visited death row to get a feel for
the killers' new home. While touring it, he spotted Efrain Perez,
one of the defendants, in the day room. Perez charged at Ertman -
they were separated by plastic shield and bars - and began cursing
him in Spanish.
Soon after the murders, Ertman said, he gave serious
thought to having the defendants killed. He said he was consumed
with anger. And that rage combined with about 20-30 beers a day made
for a very "crazy" man, he said.
He said he is much mellower now,
but still drinks about eight beers a day. Sandy Ertman also hit
bottom after the murders and during the trials. She took Valium to
help calm her and soon became addicted. She was hospitalized and
needed four months at home to break her habit.
Now she's content to
learn how to can fruit, and has started learning how to bake bread.
With money they had saved for Jennifer's college education and money
they made from selling their Houston home they paid for the land
near Lake Somerville.
The couple built the little yellow house that
has been a haven for them. They are enjoying their marriage and the
outdoors. Life is renewed.
They return to Houston every two weeks
only to visit their daughter's grave. They no longer go to victim
rights meetings; the focus on death and crime was not helping them
heal, they said. Being away from constant talk about crime has done
wonders for them, they said.
The only group Sandy Ertman belongs to
is her neighborhood ladies club. The Penas also are considering
moving to the country. They want to shield their 10-year-old
daughter from the crime in Houston, and Melissa Pena, 40, wants to
own a horse.
The past five years have brought the same exhausting
sorrow for them. But unlike the Ertmans, the Penas still live in the
same house, near the park where their daughter was killed. At least
now, Melissa Pena said, they think of happy things about Elizabeth,
not just about her death.
The family, however, is not the same.
There are problems at home that have gotten worse over the past five
years. The couple's 18-year-old son has had serious problems since
his sister's death, and has not learned to cope with the tragedy,
Melissa Pena said. "From age 13 to 18 for him has been a living hell,"
she said.
Adolph Pena, 42, a drywall contractor, said he now has an
appreciation for more of the little things in life. The other day he
witnessed a heated argument between a friend and his son over a
fishing lure. He said he thought to himself, if they only realized
how silly they were.
As the June 25 date approaches each year, the
Penas say they brace themselves for an onslaught of emotions. At the
beginning of the month, the sadness creeps in and then it builds as
the day gets closer. Elizabeth would have been 21 on Father's Day.
The Penas also have backed off their involvement in victims rights
groups because their efforts seemed fruitless. Now they volunteer
with the Houston Livestock Show and Rodeo, helping children.
Even
those who were not related to the girls get a familiar lump in their
throats this time of year. Prosecutor Kelly Siegler said she is
still affected by the case, though she has had numerous murder
trials.
Siegler, who prosecuted Raul Villareal, 18, said the murder
scene was the worst she has seen in her career. Siegler said back
then she wasn't sure about seeking the death penalty for young first
offenders, like Villareal. "That was my fourth death penalty case. I
used to think if they were young we ought to cut them some slack,"
she said. "Youth doesn't bother me anymore. It made me a little
harder."
She said Houstonians also have not forgotten the girls, or
the horrific nature of the crime. In every capital case, she asks
potential jurors if they could sentence someone to die. Each time,
there is at least one person who uses the Ertman-Pena case as an
example of why they could.
Houston police Sgt. Ray Zaragoza was an
investigator on the case, and he also thinks about the case
regularly. He said he will never forget the murder scene, and what
the girls looked like after four days in the woods. He said he can
still picture their partially decomposed bodies, and the injuries
they sustained.
Zaragoza, who now works as an investigator for the
district attorney's office, took vacation time to watch the trials
when he was not testifying. Victim rights volunteers say the murders
changed the city, in tangible and subtle ways.
Justice for All was
just starting to draw members when the girls were murdered. That
crime was the last straw for people, and the group began to grow,
said Dianne Clements, president. "It was so unbelievable," she said.
"Because of the absolute innocence of these two girls. "Everybody
looked at Jennifer and Elizabeth and said this could have been my
daughter, my sister, or my friend."
She said that crime motivated
people to join the group, which now has 2,000 members and is
influential, successfully lobbying legislators. In the aftermath of
the murders there were also a few policy changes.
After the final
trial, Ertman asked the mayor's crime liaison, Andy Kahan, if he
could watch the executions. At that point, only family members of
the inmates watched. With Ertman and Kahan's advocacy, the
Legislature passed a law making it possible for the victim's family
to watch executions.
Since the law changed in 1996, 75 percent of
the families have opted to watch, Kahan said. Also, Ertman was the
first family member of a victim to address defendants face to face
in court after sentencing. The policy had existed, but judges had
not allowed it. Now the practice is common.
The Ertmans and Penas
know this memorial service will unleash their grief again, but they
also know they have come a long way. "It sounds kind of trite to say,"
Melissa Pena said, "but life does go on."
Punishment affirmed
03/20/97
The last of 5 young gang members sent to death
row for the rapes and murders of 2 teenage girls in Houston 3 1/2
years ago had his death sentence upheld Wednesday by the Texas Court
of Criminal Appeals.
Jose Medellin has been on death row since
September 1994 for the slayings of Jennifer Ertman, 14, and
Elizabeth Pena, 16.
Appeals court affirms 2 murder convictions
01/30/97
The Texas Court of Criminal Appeals on Wednesday
affirmed the capital murder convictions of serial killer Kenneth
Allen McDuff and gang leader Peter Anthony Cantu.
It was the second time this month the court has
affirmed a capital conviction against McDuff, 50. Last week, it
refused to overturn his death sentence in the 1991 kidnap-murder of
Austin accountant Coleen Reed.
On Wednesday, the court affirmed McDuff's
conviction in the 1992 kidnap-murder of pregnant Waco convenience
store clerk Melissa Northrup. He was tried in Harris County on a
change of venue.
McDuff, currently dying of untreatable cirrhosis
and hepatitis, was on death row for a 1966 triple killing in a Fort
Worth suburb when, because of a U.S. Supreme Court ruling, his
sentence was commuted to life. He remained imprisoned until 1989 and,
after being paroled, went on another killing binge.
Various law enforcement agencies believe that
McDuff, after being released from prison, murdered as many as a
dozen Waco-area women while he was a student at Texas State
Technical Institute in Waco.
In the Cantu case, the appeals court, in an
opinion written by Judge Steve Mansfield, brushed aside each of the
45 points of error challenging his capital conviction in the 1993
murders of Elizabeth Pena, 16, and Jennifer Ertman, 14.
Only the capital conviction of Cantu's co-defendant,
Jose Medellin, remains unresolved at the state appellate court.
Earlier, the court affirmed the convictions of Derrick Sean O'Brien,
Raul Villarreal and Efrain Perez.
Cantu and the "Black and Whites" gang he led were
initiating Villarreal as a member one night, forcing him to fight
each of them in turn in a clearing off T.C. Jester. Soon after they
finished, the two girls approached on nearby railroad tracks, taking
a shortcut home.
Jose Medellin ran up and grabbed Pena, who
screamed for help. Ertman might have escaped, but she, too, was
caught when she ran back to help her friend. Both girls were dragged
into a wooded area, sexually assaulted, tortured and killed.
The appellate decision notes that Cantu, wearing
steel-toed boots, kicked out several of Pena's teeth and stood on
Ertman's throat until she quit moving. Afterward, the gang went to
see Cantu's brother and sister-in-law.
At his trial, the couple told how the gang
members gleefully described how they had raped and killed the girls.
All five were sentenced to death. Attorney Robert Morrow, who
represented Cantu at trial and on appeal, said it was the most
difficult of the many capital cases he has handled.
The appeal made no effort to show Cantu did not
commit capital murder, but focused largely on the issue of his "future
dangerousness," one of the key questions Texas jurors must decide
before returning a death penalty. "On the facts, it's an
overwhelming proposition to try and convince a jury that they
shouldn't give somebody the death penalty on a case this bad,"
Morrow said. He said he will now appeal the case in federal court.
Verdict upheld in murders of two teen girls
01/22/97
The U.S. Supreme Court on Tuesday upheld the
capital murder conviction of Derrick Sean O'Brien, one of five teens
sent to death row in the rape-murders of two northwest Houston girls
during a gang initiation.
He was 19 on June 24, 1993, when Jennifer Ertman,
14, and her friend Elizabeth Pena, 16, stumbled onto a late-night
drinking party and gang initiation at a railroad trestle near 34th
Street and T.C. Jester.
The girls were raped, strangled, beaten and
stomped, their bodies left to be found four days later. Prosecutor
Steve Baldassano said Monday that O'Brien's role was especially
aggravated, since others present testified that he raped the girls,
then handed over his belt to help strangle them, pulling on one end
to choke the life out of Ertman.
O'Brien, 21, also could be seen in a photo taken
before his arrest, smiling in an onlooking crowd as police searched
the crime scene, Baldassano said. Baldassano said an execution date
is usually set by the trial judge. That was state District Judge Bob
Burdette, who has since been succeeded by state District Judge Jan
Krocker.
Appeals court upholds conviction in gang rape-slaying
of two teens
11/28/96
The Texas Court of Criminal Appeals has upheld
the conviction of one of five youths condemned to die for killing
two teen-age girls during a gang initiation in 1993.
Judges affirmed the 1994 capital murder
conviction of Raul Omar Villarreal in the rape-murders of Elizabeth
Pena, 16, and Jennifer Ertman, 14, in a clearing near T.C. Jester
and 34th Street.
The panel previously affirmed the convictions of
Jose Medellin, Peter Cantu, Derrick Sean O'Brien and Efrain Perez.
All five cases are being appealed to federal courts.
Testimony showed the girls were hurrying home to
meet a parental curfew on the night of June 24, 1993. They were
walking along railroad tracks in the darkness when they happened
onto the initiation of Villarreal, then 17, into the Black and White
gang.
To get into the gang, he had to fight each of the
other members, all of whom had been drinking heavily. Ertman might
have escaped, but she returned to help her friend, Pena, who was
calling for help.
Both girls then were dragged into a wooded area
and repeatedly raped by all five defendants. Villarreal's appeal did
not challenge the jury's guilty verdict, but instead attacked the
jury's finding in his trial's punishment phase that he poses a
future danger to society.
Although Villarreal did not have the history of
violence of some of his co-defendants, Judge Lawrence Meyers wrote
in his opinion that the sheer viciousness of the killings, the giddy
way the youth acted afterward and the fact that he stabbed someone
in jail while awaiting trial supported arguments that he is likely
to be violent in the future.
The appellate opinion devoted a full page to
describing how Villarreal behaved in the aftermath of the murders.
He was among gang members who told Medellin's relatives what they
had just done. "Appellant was laughing and giggling and appeared
very excited," the opinion says. "Appellant bragged about numerous
sexual and sadistic acts he performed on both victims. Appellant
also laughed about how the girls pleaded for their lives."
Medellin looped a belt around Ertman's neck, and
O'Brien and Villarreal pulled on opposite ends of it to strangle her.
When the belt broke, the opinion says, Villarreal began "jumping up
and down on her throat."
'It's too big a battle to fight'
Hearing to decide youth's
fate in Pena-Ertman killings
10/06/96
Before the events of one particularly dark night in June 1993,
Venancio Medellin Jr. was regarded as a decent kid who had something
that was not always evident on the streets of his North Side
neighborhood: potential.
He got good grades, stayed out of trouble,
kept away from gangs and made a good enough impression to be
admitted to a magnet school that would cultivate his artistic
ability. But he also had an older brother who could boast none of
those things.
When Jose Medellin, a troubled 9th-grade dropout,
invited 14-year-old Vinny along to watch a gang initiation, the
prospect of a little excitement among the street-wise crowd was a
temptation the younger boy couldn't resist.
He did not bargain on
the sudden eruption of predatory violence that occurred when the
group snatched two young girls who had the misfortune of crossing
their paths in an isolated patch of north Houston. Nor could he have
believed that he would have a significant part in it.
The final
consequences were literally unimaginable: two innocent teen-agers
savagely raped and strangled, five young men ticketed for death row,
and Vinny - half-man, half-boy - placed in a legal limbo that would
certainly mean a few years at a youth facility and perhaps decades
more in prison.
Medellin returned to Houston 10 days ago for a
mandatory hearing pegged to his soon turning 18. At issue was
whether he would be transferred from the Giddings State School, the
Texas Youth Commission site for serious offenders, to the adult
prison system.
Having been given what is called a determinate
sentence, he could have been paroled at that time, held by TYC until
he is 21 and then released, or sent to prison to serve the remainder
of his 40-year term. TYC's recommendation, glowing in its praise,
was to keep him till 21.
Medellin held out hope that would happen.
Everybody else, including his attorney, knew it would not. "The
crime is so heinous it's like the blob - it just spreads over
anybody involved in it," said Esmerelda Pena-Garcia, who has
represented him from the beginning. "His past record, his actions
that night, his exemplary behavior before and since then, none of
that matters. It's too big a battle to fight."
No local case has better represented the new dimension of teen-age violence than the
murders of Jennifer Ertman and Elizabeth Pena. It was no surprise
that neither the prosecutor nor the judge wanted to hear talk of
Medellin's potential.
Though Medellin was not accused of complicity
in the abduction or the killings, the simple fact that he had been
part of a brutal assault that turned bestial at its conclusion was
all that needed to be known. "Medellin's offense in and of itself is
sufficient to justify that sentence," said Judge Pat Shelton, who at
the end of the hearing dismissed TYC's report as "psychobabble" and
said he hopes Medellin's future parole officer has not been born yet.
"What we are saying (to him) is that we can't trust you based on
what you did that one day, no matter how perfect you were before and
after. I think the system has got to put the interests of the victim
and the public first," Shelton said.
Shelton's opinion is that
serious crimes deserve serious time no matter what the age of the
offender. Period.
It is a philosophy that stands sharply in contrast
to the traditional rehabilitative mission of the juvenile justice
system, but he does not apologize for it. "Can we rehabilitate the
15-year-old, and is it worth the time and expense (considering) the
crime committed? The answer is no." Shelton said. "At the time of
the transfer hearing, I have to consider what that offense was worth,
not what the offender is worth. That's the difference between the
court and TYC."
Juvenile authorities, however, strongly defend their
recommendation for Medellin. And they worry that the rush to heap
maximum punishment on young offenders will only backfire down the
line. "I said in my cover letter to the judge it would be easy to
transfer him," said Giddings Superintendent Stan DeGerolami.
"It
would be easy in many of these cases . . . But I'd rather have a kid
who spent four to five years in TYC living next to me than one who
spent 15-20 years in the adult prison. We make every effort to take
violent young people and make them less violent and likely to re-offend."
Given how messed up their lives are, that is no easy task. Within
three years of release from TYC, 42 percent of youthful offenders
are re-incarcerated. The rate for the adult prison system is only
slightly worse, running just under 50 percent.
The statistics on
violent offenders have not been broken out, however. Nor has the ""new
TYC" been around long enough to fully demonstrate an impact, its
backers say.
TYC has changed in recent years, putting much more
emphasis on punishment and accountability. Discipline is serious and
offenders' days are highly structured. Treatment programs have been
enhanced.
But for many judges and prosecutors, this change begs the
question of punishment for violent young criminals. "That's not time
to do sufficient penance," Shelton said of the handful of years an
offender serves at TYC.
There is no doubt that the increase and
severity of juvenile crime has resulted in youthful offenders being
treated far differently than they were a decade ago.
The determinate
sentencing law, first passed in 1987, gave authorities the ability
to imprison youths guilty of violent offenses for up to 40 years
instead of having to release them at 21.
The law has proved a useful
and often used tool. Almost 700 offenders have been sentenced with
it, half of them getting terms 15 years or longer.
And of those
whose hearing had come up by the end of 1995, 40 percent were sent
on to prison. On Jan. 1, 1996, the age at which juveniles can be
tried as adults was lowered to 14.
There is talk of pushing it lower,
and some, like Judge Shelton, would like to do away with age limits
altogether. Hearings to "certify" juveniles as adults are now
commonplace. Shelton said he alone did 70 last year and is already
up to 64 in 1996.
The three local juvenile courts combined to
certify 131 last year. Five years earlier, the total was 20. Head
juvenile prosecutor Elizabeth Godwin said her office is taking
advantage of the broader certification law, especially now that TYC
has been given authority to keep offenders till 21 or parole them
before without having to get a court's permission.
That scenario,
under which Medellin never would have gone to the adult system,
makes using determinate sentencing much less palatable to
prosecutors. Unless the crime rate dips dramatically, more and more
juvenile offenders are likely to be certified as adults.
"The public
and the Legislature came to the conclusion we (the juvenile system)
shouldn't be wasting time with kids like this," said Godwin, who
wholeheartedly agrees with them. "I have no sympathy for violent
offenders no matter what age."
That black-and-white view, which
enjoys much public support, troubles experienced juvenile system
officials. Left unchallenged, it could lead to the undoing of the
system.
"I would hate to see what this society would be like if
everybody gave up hope that we can make a difference with some of
these kids," said Judy Briscoe, TYC chief of staff and head of
delinquency prevention. "I realize there are some kids who need to
be locked up for the rest of their lives. But not all of them."
Briscoe argues that even those who have committed a very serious
violent crime deserve a chance to go through the program. If they do
well in it, they should be considered for release, she said.
Added
DeGerolami: ""I don't think the adult system is such a good system
that you can send a 14-year-old over there and like what you see
when he comes out."
That may be, but to those who view themselves on
the victims' side - including some judges - rehabilitation simply
does not enter into the equation. The issue of punishment is
paramount.
Mark Kent Ellis, another Harris County juvenile judge,
has rejected TYC's recommendation to keep offenders under its
custody six out of eight times this year. Medellin is an example
that can be used for both sides of the debate.
He did very well in
the TYC treatment program. He got into no trouble and received his
GED. Over time he accepted full responsibility for his actions. For
the record, he also cooperated with authorities and testified in all
of the murder trials save his brother's.
But the crime in which he
was involved was very serious. Shouldn't he have to pay for that? "We've
lost the whole history of the juvenile justice system," said Pena-Garcia,
who saw in Medellin a good kid who made one mistake for one minute
of his life. "Until we have a system where a judge feels safe making
a ruling on law rather than popular opinion, we're going to have
that problem."
Responded Shelton: "Our system is as rational as it's
ever been. What is a crime worth? You make your best call. He was
lucky. If he'd been a year older, he'd be in prison for life and
have to serve at least 40 years."
Teen rapist transferred from youth home to prison
09/27/96
The youngest of six defendants convicted in the savage rape,
torture and killing of two Houston girls in 1993 was ordered
transferred from a Texas youth facility to prison Thursday.
Venancio Medellin Jr., 17, must serve the remainder of his 40-year sentence
for the aggravated sexual assault of Jennifer Ertman. Medellin -
described as a role model in the youth home - will earn credit for
the three years served there and be eligible for parole in seven
years.
The other five, who were gang members and include Medellin's
older brother, are on death row. Family members of the victims,
Ertman, 14, and Elizabeth Pena, 16, were surrounded by victims
rights advocates in state District Judge Pat Shelton's packed
courtroom.
Shelton ignored the Texas Youth Commission's
recommendation to keep Medellin under its jurisdiction until he is
21. Ertman's father, Randy, had begged the judge to send Medellin to
prison. ""I'll look forward to him catching AIDS in prison and dying,"
said Ertman. I am happy again."
On June 24, 1993, the two girls were
walking on railroad tracks in the 3600 block of T.C. Jester when
they encountered the gang members, who had just finished an
initiation event. The girls were raped, beaten and strangled. The
murders sparked immense community outrage and remain one of the
city's most notorious crimes.
Medellin, then 14, pleaded guilty to
aggravated sexual assault and was sentenced to the maximum juvenile
sentence of 40 years. He was not accused in the murders.
During
Thursday's transfer hearing, a TYC psychologist said Medellin had
perfect behavior in the home and was making excellent progress
toward rehabilitation. Medellin testified that he has remorse for
raping Ertman.
Prosecutor Beverly Malazzo said she asked for the
prison time because of the heinous nature of Medellin's crime and
concern for the safety of the victims' families. After hearing Randy
Ertman testify that his daughter's murder has destroyed his life,
Shelton said more penance is needed.
The judge's other options were
to send Medellin back to TYC until he turns 21 or parole him.
Defense attorney Esmerelda Pena Garcia said the ruling makes
Medellin's chances of rehabilitation slim now. She called him an
intelligent man who has talent in art and wants to be an architect.
Death sentence upheld in 1993 slayings of girls
05/16/96
The Texas Court of Criminal Appeals on Wednesday upheld the death
sentence given to one of the five youths convicted in the 1993
slayings of two teen-age girls.
The court rejected 32 points raised
in Derrick Sean O'Brien's appeal, including not being allowed to
move the trial due to publicity and the use of a prior murder
against him.
O'Brien was the second to be tried and sentenced to
death for the 1993 rapes and murders of Jennifer Ertman, 14, and
Elizabeth Pena, 16.
The first was Peter Anthony Cantu, who led the
assault on the girls as they took a shortcut home from a party. On
June 24, 1993, Cantu, 18; O'Brien, 18; Jose Ernesto Medellin, 18;
Raul Omar Villarreal, 17; Efrain Perez, 17, and Vinny Medellin, 14,
were gathered in a clearing near T.C.
Jester and West 34th Street,
drinking beer and taking turns pummeling a gang initiate when the
girls walked by. O'Brien's was the first case to be heard by the
high court. After his arrest, prosecutors learned of a murder six
months earlier involving O'Brien and used it against him in the
punishment phase.
Patricia Lopez, 27, was found with her throat and
abdomen slashed open, her clothes torn off and scattered about a
northeast Houston park. O'Brien admitted that he, Cantu and Medellin
bought Lopez gasoline in exchange for beer. She was killed when
O'Brien ordered her to perform oral sex and she failed to arouse him.
Execution-witness bill dies in House
05/25/95
A bill that would allow crime victims' families to witness
executions died Wednesday in the Texas House, but it may be
resurrected. The bill, sponsored by Sen. J.E. "Buster" Brown, R-Lake
Jackson, would have allowed five relatives to attend the execution
of their loved one's killer.
Approved by the Senate 28-0 in March,
the bill died in the House because it ran out of time to consider
the measure. "I cannot understand why this bill died," said Andy
Kahan, director of the Mayor's Crime Victims Office. "It sailed
through committee and the Senate with no opposition. It does not
cost anything."
Louisiana is the only state that by law allows
families of victims to witness executions. California, Washington
and North Carolina allow such witnesses through its prison
department policy, Kahan said.
He said he would try to resurrect the
bill as an amendment to the pending Crime Victims' Bill of Rights. "That's
where it belongs anyway," Kahan said. "If that fails, I'll go to
Plan B."
That would be requesting the Texas Department of Criminal
Justice to include the new witnesses in its policy on viewing
executions. "This is an issue of fairness," Kahan said. "Right now,
the inmate is allowed five witnesses, so why shouldn't the victim? "Most
families would not want to witness it, but the option should be
available."
If those measures fail, Brown said, he would attempt to
reintroduce the bill in the next legislative session. He said he
doubts it can be resurrected this session.
The bill's biggest
supporters include Houstonians Randy Ertman and Melissa Pena, whose
daughters were raped and killed by a gang of youths, five of whom
are on death row. "I want to watch them die," Ertman said. "That's
the final chapter, and I can close the book."
He, among other
families, testified before the Legislature in support of the bill. "We
spent a lot of time going up there," he said. "It kicks your butt to
rehash all that in your head and to have it come down to politics of
whose bill to ignore."
Prison officials also testified before
committees, showing blueprints of wall dividers that could separate
inmates' witnesses from victims' witnesses, Ertman said.
The right to witness executions
03/22/95
Victims' rights advocates won a small victory Tuesday when the
Senate Criminal Justice Committee approved a bill that would give
relatives of murder victims the opportunity to witness the killers'
executions.
The bill -- sponsored by Sen. J.E. "Buster" Brown, R-Lake
Jackson -- was sought by the Houston families of Jennifer Ertman and
Elizabeth Pena. They want to watch as the five youths now on death
row for raping and murdering the girls are put to death by lethal
injection.
Committee members limited to five the number of victims'
family members who could view an execution, and said that some sort
of partition should be placed between viewers and the person to be
executed.
Apology demanded of killer's attorney
Group protests "insensitive"
remark
10/15/94
A local victims' rights organization wants a defense attorney in
the Ertman -Pena murder case to apologize publicly for his "insensitive
and unprofessional" comments earlier this week. But the attorney,
Ricardo Rodriguez, said Friday that his comments had been
misconstrued.
About 30 members of Justice for All demonstrated
outside Rodriguez's downtown law office Friday. They said his
comments made them believe he meant the two teen-age victims'
families were in some way responsible for their deaths.
Rodriguez
was the attorney for Raul Villareal, one of five gang members given
the death penalty. The comment that sparked the protest was made
after a Tuesday court hearing where the parents of Jennifer Ertman,
14, and Elizabeth Pena, 16, were allowed to address the court with
three of their daughters' killers -- including Villareal -- present.
During an interview in a hallway, Rodriguez said, "I'll say this,
and you may not like it, but the parents bear some responsibility,
too . . . the parents of the victims." "Those thugs did what they
chose to do," said Pam Lychner, president of Justice for All. "These
families and all crime victims' families deserve an apology."
Lychner said Rodriguez's comments were unprofessional, insensitive,
outrageous and unethical, and she has asked the State Bar of Texas
to see whether he should be reprimanded and possibly disbarred.
Rodriguez said he was talking about all parents' basic duty to raise
their children in a proper way and to know where they are. "The
parents are zero percent responsible for these crimes," he said. "The
defendants are." But Rodriguez added, "I don't think I have to make
a public apology."
He said his comments had been misrepresented and
he never used the words "contribute," "blame" or "death" when he
spoke about parental responsibility. He said he would be willing to
meet with the Ertman and Pena families privately to discuss the
incident.
As for a State Bar inquiry, Rodriguez said he felt
confident he would be vindicated, because "I've done nothing wrong."
Ertman and Pena were walking home through a park near midnight in
1993 when they were raped and murdered by six youths.
Group pushes right to view executions
Victims advocates want
families to have a say
10/15/94
Victims' rights advocates are preparing to launch a campaign to
give relatives of murder victims the opportunity to witness the
killers' executions.
The families of Jennifer Ertman, 14, and
Elizabeth Pena, 16, say they want to watch as the five youths now on
death row for raping and murdering the girls are put to death by
lethal injection.
Andrew Kahan, head of the city's victims'
assistance office, said he expects the Ertman-Pena murders to
provide impetus for a successful effort to change state law, which
now authorizes only five witnesses to executions -- none of them
family members of victims. "From the victims' perspective, it is
equal opportunity, and for those who choose to take it, it will be
closure," he said. "I don't expect a lot of family members to do
this, but again, the issue is they should have that opportunity if
they are so inclined."
While prison wardens in some states allow
victims' families to witness executions, Louisiana is the only state
with a law that explicitly authorizes the practice.
The first people
to take advantage of that law were Elizabeth and Vernon Harvey,
whose 18-year-old daughter was slain in 1980. "Until you are in that
position, you do not know how it feels. You really see how out of
balance the system is," Elizabeth Harvey said. "It is not something
that is taken lightly. It is a door you can open, or not open, but
you should have that choice."
She said the idea of observing the
execution emerged when her husband was interviewed by a reporter
after their daughter's body was discovered, eight days after she
disappeared from a nightclub where she had been in a fashion show.
"Somebody
asked my husband if he had the choice of a million dollars or seeing
him (Robert Lee Willie, the convicted killer) put to death, which
would he take," Harvey recalled. "He said they could keep the money."
The prospect of victims' families watching executions in Texas is
not universally acclaimed, however. "I would not want the victims'
family to be there if they are just going to gloat over the
execution," said Jimmy Dunne, head of the Death Penalty Education
Center, which opposes capital punishment. "That would just bring the
execution down to a lower level to have someone there cheering a
man's homicide."
Steve Hall, the director of administration at the
Texas Resource Center, a group that provides legal assistance for
indigent death row inmates, said authorizing families to observe
executions is an idea that is "ripe for problems."
Hall pointed to a
shouting and shoving match between families of Ertman and Pena and
the father of a defendant in the case after one of the killers was
sentenced this week. "The kind of display you saw in the courthouse,
there is some potential for that to happen at an execution," he said.
South Texas College of Law professor Neil McCabe said the effort to
authorize families to watch executions has a good chance of success.
"It is politics. The victims' rights groups have a lot of political
clout now," McCabe said.
"The pendulum has swung and I don't see
that it has gone as far as it will." Whether watching an execution
would help a grieving relative heal would depend on the individual,
said University of Houston psychology professor Dr. John P. Vincent.
"I think for each it will have to be an individual thing," Vincent
said. "What works for one victim may not work for another."
In Louisiana, Harvey said she has no regrets about her decision. "I
kept being told that it was going to be so awful," she said. "His
death was not near what my daughter went through. He had his last
meal, his friends all around. I wish I could have said goodbye to my
daughter, served her her favorite meal. "I had to see that it was
really over," she said. "I had to know no one was going to hurt like
we do again."
Speaking up over speaking out in court
Tense monologues in
Ertman-Pena cases lead many to back more controls
10/13/94
Highly emotional remarks from two grieving fathers after the
sentencing of their daughters' killers is stirring debate about
whether a state law allowing the speeches provides victims a chance
to publicly purge their emotions or creates a courthouse sideshow.
"I just left there yesterday kind of thinking, "Man, I don't know if
that did anybody any good or not,' " prosecutor Kelly Siegler said
Wednesday. "To expect someone to stand up there and sound dignified
and stay in control when all they really want to do is get their
hands on that defendant's neck, I have to wonder, "What's the point?'
"
Siegler summed up the feelings of many who witnessed the tense
monologues delivered by Randy Ertman and Adolph Pena after the last
three of their daughters' killers were sentenced to die.
The highly
charged courtroom face-off spilled into a nearby hallway and ended
in a shouting and shoving match between families of the victims and
families of the killers.
Though no one Wednesday suggested the
victims or their families should not be allowed to address the court,
everyone agreed there needs to be more control. "My greatest fear is
that this will absolutely degenerate into a free-for-all inside the
court just like it did outside the courtroom," said defense attorney
Jerry Guerinot.
District Attorney John B. Holmes Jr. said he
supports the victims' right but opposes the event being played out
before the cameras, which he said makes people behave differently.
"I am one of those old-fashioned guys," Holmes said. "I don't think
the proceedings should be made to be a spectacle. The proceedings in
the halls of justice are not meant for entertainment."
Until Randy
Ertman stood before the media floodlights earlier this year and
lambasted Peter Cantu, the 19-year-old leader of the gang that
savaged Ertman's daughter Jennifer, 16, and her friend Elizabeth
Pena, 14, many prosecutors and judges did not even know about the
law allowing victims to speak out.
The right to speak was approved
by the state Legislature in 1991 at the behest of victims' rights
advocates, who argued that crime victims should have a role in the
justice system other than bystander or witness. "From what we have
seen, anything can happen when you let people express their pain
without guidelines," said Robert Keppel, general counsel for the
Texas District and County Attorney's Association and a participant
in drafting the law.
Janie Wilson of Victims Organized To Ensure
Rights and Safety predicted the law will be used more as the public
become aware of it. "The victims' rights movement in Texas has shown
a lot of maturity on the whole."
The law specifically provides
victims a chance to address the court, not the defendants. Still,
despite admonishments from the judge, victims tend to aim their
remarks at the defendants.
To avoid situations similar to what
happened in the Ertman -Pena cases, state District Judge Jim Barr
said he would push to have victims write their statements before
delivery.
In addition, he wants to consider limiting who can be at
the hearings where the victims are allowed to speak. "I don't think
it was meant for a whole room of victims' rights people," Barr said.
"It sets up a volatile situation. It is the judge's responsibility
to keep the order of the court."
State District Judge Caprice Cosper
also wants to establish guidelines. "The law only gives us
parameters," she said. "I think the courts would hope this
particular statute would afford victims the chance to say what they
feel, but I think that everyone should always be mindful that this
is a courtroom and these are legal proceedings."
Dr. John P. Vincent,
a University of Houston psychology professor, said the law, despite
its pitfalls, affords what can be an important part of the healing
process for crime victims. "For many of these people, there is a
depth of rage that is beyond most of our comprehension," he said.
"Their
feelings and needs often get lost in the shuffle. "I think there are
instances where confronting the person that has caused you grief and
distress provides you some measure of relief," even if it is
indirect, he said. South Texas College Law Professor Neil McCabe
supports the practice but says an argument can be made against it as
a throwback to the Dark Ages.
"All these kinds of public punishments
tend to demean society," he said. "One could make an argument that
this is the modern-day equivalent of the pillory where you were put
before the community and subject to ridicule. Why not just turn them
over to the victims' families?"
Heated exchange outside court
"You belong in hell,' convicted
killers told
10/12/94
Two fathers, whose teen-age daughters were raped and murdered
last year, Tuesday spoke angrily to their convicted killers during
an emotion-packed court hearing that ended in a shouting match in a
courthouse hallway.
"In 16 months I have never seen any remorse,"
said a tearful Randy Ertman, after the three -- Efrain Perez, Raul
Villareal and Joe Medellin -- were sentenced to die by lethal
injection. "You belong in hell," Ertman told the trio. "We live for
the day that you die."
Jennifer Ertman, 14, and Elizabeth Pena, 16,
had left a party and were taking a shortcut home June 24, 1993, when
they crossed paths with six youths engaged in a drunken gang
initiation rite. The girls were repeatedly raped before being
strangled and stomped to death.
Separate juries found Perez, 18,
Villareal, 18, and Medellin, 19, guilty of capital murder last month
and sentenced them to die for the girls' rapes and murders.
Two
other gang members, Peter Cantu and Derrick Sean O'Brien, both 19,
were already sentenced to die in the case. Because of the high level
of emotion surrounding the case, and in the interest of avoiding
conflict, a request by the victims' parents to address the court in
the defendants' presence was postponed for 19 days to allow both
sides to cool down.
Texas law allows victims or their surviving
relatives to speak at sentencing. One of the criminal court's larger
courtrooms was chosen for the sentencing. The overflow crowd of
spectators consisted largely of crime victims who have supported the
girls' families.
State district Judges Caprice Cosper, Doug Shaver
and Ruben Guerrero occupied the bench and each judge sentenced a
youth to die by lethal injection for the slayings.
Afterward, the
families were offered the chance to address the court from the
spectator's gallery. Randy Ertman, who lashed out at Cantu after the
gang leader's trial earlier this year, this time read from a
prepared statement.
"When these killers are in the ground, our job
as parents is over with," he said tearfully. "For someone to destroy
two loving children is sick." Ertman also said, "You are worse than
spit. You belong in hell."
Sandra Ertman stood at his side holding a
plastic bag containing a watch and rings of Jennifer's still tagged
as police evidence.
Testimony showed gang members traded the items
among themselves and their girlfriends after stomping, kicking and
strangling the girls and leaving their bodies in woods off T.C.
Jester and W. 34th in northwest Houston. "I wish that these guys
could get executed the way they (the girls) did and be left there,
just left there on the ground to die," Adolph Pena said, challenging
the youths to look at him as he spoke.
Villareal kept his back to
Adolph Pena while Medellin turned to him periodically. Perez, eyes
rimmed with tears, looked at Pena often.
Defense attorney Jerry
Guerinot repeatedly objected when comments were directed at the
defendants but otherwise could not prevent the monologues. "I just
want to say that, well, the way they are going to be executed is not
fair to us," Adolph Pena concluded.
Afterward, the crowd spilled
outside the courtroom into the spotlights of television cameras. It
was then that the shouting broke out between families of the victims
and the killers.
Adolph Pena became angry after overhearing a
comment by Perez's stepfather, Ismael Castillo, about being insulted
by the comments made in court and suggesting that the girls' parents
also shared in the blame for the girls' deaths.
Finger-pointing led
to a brief, but intense, face-to-face confrontation. Randy Ertman
plunged into the fray and was held back by Adolph Pena while it
appeared Castillo raised a fist.
The huge crowd gathered in the
hallway outside the courtroom pressed into the pair, adding to the
chaos. Bailiffs quickly pushed the Perez family out a side door
while Ertman, Pena and their wives left via another route without
comment. Castillo's comments enraged many of the onlookers.
Justice
For All's Pam Lychner said, although she can understand the Perez
family's pain, "it is not their right to lash out at the families
either. The Ertmans and Penas have not lashed out at them, they were
lashing out at the boys who are responsible."
Prosecutor Johnny
Sutton concurred. "It's a sad day for them (the killers' parents) as
well, and I don't think it was their fault," Sutton said. "Those
boys made choices. There was time for them to have turned back."
The
outburst surprised no one given the intensity of anguish on all
sides of the case. Nearly every emotion the Ertmans and Penas have
had since the girls' bodies were discovered has been captured by the
media.
Randy Ertman's pained and angry rebuke to Cantu after he
received the death penalty was shown on television. A small band of
protesters who appeared to protest the death penalty caused an angry
exchange on the streets outside the courthouse.
Prosecutor Marie
Munier said the victim-impact law affords an important moment for
victims, allowing them to feel a part of the system they became a
bystander to by a cruel act of fate. "It's cleansing."
Times may be changing
By D. J. Mothen
09/27/94
Are times changing? Five killers, five trips to death row (in the
deaths of Jennifer Ertman and Elizabeth Pena). It seems if this had
happened a few years ago the men convicted in Houston recently would
have served possibly 10 years of a life sentence and then be set
free on parole. Is the country rebelling against such crimes? I hope
so.
Congratulations to all the jurors and prosecutors on the superb
jobs they did. And sincerest condolences to the Pena and Ertman
families.
Jurors' message clear
By Lee Flowers
09/26/94
We should all be very proud of some of our recent jurors'
willingness to deliver very appropriate verdicts and truly proper
sentencing to the heinous killers of Tracy Gee (slain in 1990) and
Jennifer Ertman and Elizabeth Pena, who were raped and murdered last
year.
The expedience in which they arrived at their decisions should
serve as a loud and very clear message to all of the "scum" that so
coldly and willingly take our children from us without as much as a
second thought in their sick minds.
Victims' kin grateful
By RANDY ERTMAN, SANDRA ERTMAN, ADOLF PENA,
MELISSA PENA
09/25/94
Hoping we forget no one, we wish to thank the many people who
helped in the process of convicting those responsible for the
murders of our daughters, Jennifer Ertman and Elizabeth Pena.
To the
Houston Police Department, special thanks to Sgt. Ramon Zaragoza,
Sgt. Robert Parish, Sgt. Robert Ruiz, officer Todd Miller and
officer Roy Swainson. Also any other officers involved.
To the
Harris County District Attorney's office, we thank Harris County
District Attorney Johnny Holmes and prosecutors Don Smyth, Jeannine
Barr, Steve Baldassano, Donna Goode, Mark Vinson, Terry Wilson,
Marie Munier, Johnny Sutton and Kelly Siegler -- our deepest thanks
for your compassion and understanding.
To the victim-rights group,
Justice For All, thanks to all of you for showing up rain or shine.
To members of Parents of Murdered Children, you know the pain. To
all our friends, especially Bob Carreiro and Woody Clements, no one
forced you to be there, but you were. Thanks.
To the people of
Houston, we don't know you all, but we do love you. And thank you
for your prayers. And finally, to the 60 people who convicted the
five of capital murder, we know the hell you went through. You did
the right thing. To all of you, our sincerest love. God bless you.
5 rape-murder trials shake city inured to crime
09/25/94
THE ENTRANCE to an unnamed patch of woods hugging a short stretch
of White Oak Bayou just above West 34th Street is scarcely
noticeable from a distance.
Even close up, even when professionally
photographed and made into an 8x10 glossy, it looks like, well, not
much at all. The hole in the wall of green becomes ominous only in
the retelling of the events that turned the canopied lair beyond it
into Houston's own heart of darkness.
On one moonless night in the
summer of 1993, a pair of teen-age girls -- dazed, wounded and
shivering with fear -- disappeared through the opening, re-emerging
only on funeral home gurneys four days later, well after climate and
insects had rendered them featureless.
Murders seldom claim hold on
the daily chatter of the nation's fourth-largest city. One might as
well talk of the humidity.
During the wild days of Houston's boom,
when the promise of jobs lured the dispossessed of a dozen depressed
states, more than 700 were committed one year. And even by the end
of a relatively tame 1993, Houston police had been confronted with
497.
But the woods across from T.C. Jester Park were destined to
remain a site of distinction. Few nightmares are as wrenching as the
hour-long destruction of Elizabeth Pena and Jennifer Ertman.
Public
imagination, at first only teased by news of their disappearance,
was stoked to an unbearable height by quickly revealed details of
their final moments. This does not happen.
Roving packs of young men
do not devour two unknown girls scurrying home to beat their curfew.
"There is a point where the inhumanity of it, the brutality of it,
just flows," said Don Smyth, an assistant district attorney.
That
point was reached three times last week, as Smyth and his colleagues
prosecuted the final three defendants in the case. Each received the
death penalty, as had two others before them.
The lone juvenile
involved had previously been sentenced to 40 years. His age saved
his life but not did not spare him from the duty of testifying again
and again about the savage rapes and awkward strangulations.
By trials' end the tally was this: two deaths likely to grow to seven,
scores of shattered relatives on both sides, 60 jurors seared by the
photographs they saw and confessions they heard, millions of dollars
in current and future legal expenses, and a city forever disabused
of any lingering notion that crime somehow contains its own logic.
There was no logic here, no sense. In the primeval silence of the
woods by the bayou, there was only opportunity and attack.
ONE MIGHT like to think that the killings of Ertman and Pena,
which spawned more death sentences than any murder in recent
American history, began with a plan. If somehow the girls, however
innocent, stood between the design and execution of a great criminal
notion, then the talk can turn to fate.
Their deaths become less
threatening, if no less horrible. In truth, however, the sequence of
misbegotten events began out of nothing, a momentary impulse, an
innocuous request by a bored 17-year-old boy who lived with his
parents in a poor neighborhood on the near north side. It all
started with a quarter.
Around 3 o'clock on the afternoon of June
23, 1993, Raul Villareal, a sporadically employed 7th-grade dropout,
asked his mother for a quarter so he could go play a video game at
the corner store. When he got there he came across an old friend,
Efrain Perez, who was dealing with a broken-down car.
They chatted
briefly and Villareal went inside for a session of Streetfighter.
Perez was still there when he came back out.
The conversation
resumed, an invitation to drink some beer was extended, and soon
Villareal was at the home of a friend of Perez's, someone he did not
know named Joe Medellin who lived in a fraying subdivision out
toward Greenspoint.
They drank, smoked cigarettes and talked trash.
Villareal was invigorated. Another friend, Peter Cantu, showed up in
his red pickup and the trash talking heated up. Villareal said he
could take any of them on.
Cantu, the de facto leader of the group,
was not impressed by the newcomer despite the fact he was taller and
heavier than anyone else. "You talk too much sh-t," Cantu said. "Man,
I'll come to your house and rape your mom and then kill you."
Soon
Villareal learned that the guys were a gang, more or less, and they
called themselves the Black and White. Though he could not have
known how serious they were or what their past crimes may have been,
he must have recognized amid the bluster of punkspeak that their
lives seemed more exciting than his. By then the seduction was a
fait accompli.
Cantu could see him for what he was, a wannabe among
badasses, but if the sturdy new guy could manage to prove himself .
. .What happened next -- the rounding up of more guys, the so-called
initiation fight, the drinking, the unexpected arrival of two girls
taking a short-cut home, the frenzy of sexual assault and its segue
into murder -- have become details stored in Houston's collective
memory.
Again and again, with each trial or journalistic recount, we
heard Pena imploring her friend for help, heard them both plead for
their lives, heard the thud of fist against face and the final,
gagging sounds of their deaths. We saw Villareal prove himself in a
baptism of fire, no longer a wannabe.
In his final speech to the
jury, Terry Wilson, who prosecuted Joe Medellin, spoke of the "cloud
of darkness he brought over the community." Don Smyth, who
prosecuted Cantu and Efrain Perez, said that the specifics of these
crimes have a resonance that will endure. "These people (the jurors)
will not be the same people they were when they came in here a few
days ago," Smyth said during a break in the punishment phase of
Perez's trial, well aware of the effect the testimony was having.
"Houston as a corporate entity will not be the same again."
Harris
County District Attorney John B. Holmes Jr. made the decision early
to go after all five adult defendants for capital murder and seek
the death penalty for each. This was unusual even for Houston, the
hotbed of capital punishment prosecution in the nation. Those who
regularly keep track of death penalty cases can recall only one
crime this century with as many or more defendants sentenced to die,
the 1949 gang rape of a Martinsville, Va., woman by seven men. All
seven were executed.
The men were black, the victim white. As Holmes
and his assistants explained it, the decision arose not out of
zealotry but from the circumstances of the murders. Each of the
adult defendants had a direct role in the killing. "It's not like
you had one main actor and others standing around," said Jeannine
Barr, who prosecuted Sean O'Brien. "You don't usually get all of the
people with that much participation. That case gave me nightmares."
Her and every other prosecutor. Of the nine assistant DAs involved
in the cases, all said it was the most savage they had ever seen. "The
first week of jury selection, I dreamed they were alive, running
from the wood line," said Mark Vinson, one of Medellin's prosecutors.
"Hollywood wouldn't write a script like this and let those girls die
like they did. But they (the defendants) outdid Hollywood. This was
worse than Friday The 13th. They made Jason look like a baby."
The
self-imposed pressure on the prosecutors was tangible during the
final three trials. There was no danger of not getting a capital
murder conviction -- the facts of the crime and the young men's
confessions assured that -- but death penalties can be undone by one
balky juror. And anything less than a death sentence would have been
regarded as failure. Because of a history of extraneous offenses and
violent behavior on the part of Perez and Medellin, it was very
unlikely that any juror would conclude they did not represent a
continuing menace to society, or that there was anything that
significantly mitigated their acts, the two most important issues
juries must answer.
The only real chance to get a life sentence
belonged to the defendant who had unwittingly set the fatal sequence
of events in motion, Villareal. He had no juvenile record, and he
had dropped out of school so early there was no history of problems
with administration. A string of defense witnesses painted him as a
shy, deferential boy likely to be easily led by others. Girls who
knew him said they had no fear of him. Other than one jailhouse
incident involving Villareal and another inmate, the prosecution had
nothing to make a case that he was a continuing menace other than
the facts of the crime itself. Defense attorneys emphasized what
they claimed was Villareal's lesser role. They said he was not a "monster"
like Peter Cantu and Joe Medellin.
Prosecutor Kelly Siegler said it
did not matter if Villareal was not as bad as the others. "Don't
fall into the grading game," she told jurors. "They're all monsters.
They all deserve to die." Much if not most of Houston agrees. One of
Villareal's attorneys, Jerry Guerinot, understood that his cause was
all but hopeless. Villareal's jury stayed out longer than any other
on punishment, 10 hours, but the verdict was still death. "There are
cases so bad it does not matter what you individually did," Guerinot
said while he was waiting for the punishment decision to be made. "The
jury just can't get beyond the facts of the crime."
DEATH PENALTY opponents constantly hold Houston up as a
jurisdiction where bloodlust has grown to extreme proportions. The
county sends more defendants to death row than most states, they
point out, and far more than any other Texas county. It can't be,
opponents argue, that simply more heinous murders are committed here
than elsewhere. "I absolutely think prosecutorial discretion is a
major factor," said Jordan Steiker, a University of Texas law
professor and death penalty specialist. "I think it (Harris County)
is known to have a zealous DA's office." Even so, even with the
unprecedented number of potential death penalties at stake, it took
nerve -- some would say gall -- for Jimmy Dunne and a half-dozen
other local death penalty opponents to show up in front of the
courthouse during the trials, demonstrating for an end to the "cycle
of killing." The young men whose lives they would spare could serve
as poster boys for the death penalty.
The protesters were quickly
surrounded by outraged relatives of the dead girls, friends of their
families and members of a local chapter of Parents of Murdered
Children. There was no pretense of civility. Substantially
outnumbered, the protesters were more decisively outshouted.
"Every
time you kill a murderer, it's good for society," yelled one. "We
want to be purged. We want the murderers out of our society,"
screamed another. "Your information does not match the look in
Elizabeth Pena's eyes," spit a third.
Upstairs on the third floor,
in the narrow hallways where families of victims and defendants
wordlessly passed each other for two weeks, a young man sat on a
windowsill and stared out toward the roofs of nearby buildings.
He was related to one of the defendants, and he was despondent, not
only at the likely resolution of events, but at the pointlessness of
all that had happened. "Understand it?" he said. "There's no way to
understand it. It is senseless."
He talked some more about the boys
who had committed the crime, now men in the eyes of the law, and
said it was not too surprising where they had ended up. Guys like
that, he said, were not made to succeed.
Asked about himself, he
allowed that he was married but had no children and never would have.
"Why would I bring children into this screwed up world?"
Experiment with simultaneous trials called successful
09/24/94
An experiment in speedy justice involving the simultaneous trial
of three co-defendants in separate courtrooms was called a success
Friday, but it was a learning experience no one wants to go through
again any time soon.
Faced with five defendants accused of the rapes
and slayings of Jennifer Ertman, 14, and Elizabeth Pena, 16, state
district court officials in Harris County set out to speed up the
trial process.
Initially, the idea of having five juries seated in
the same courtroom to hear the cases was tossed around, but some of
the judges and attorneys in the case balked, so the notion was
dismissed.
Peter Cantu and Derrick Sean O'Brien, both 19, were tried,
convicted and sentenced to death earlier this year for their roles
in the June 24, 1993, slayings of the two girls. Left to be resolved
were the cases against Joe Medellin, 19, Raul Villarreal, 18, and
Efrain Perez, 18.
State District Judges Caprice Cosper, Doug Shaver
and Ruben Guerrero agreed that three defendants was a workable
number to try simultaneously, an agreement that led to Harris
County's first-ever simultaneous trials of three defendants on the
same charges.
The decision by Cosper, Shaver and Guerrero set in
motion a series of meetings with prosecutors, a law enforcement
representative and court coordinators Joseph Debruyn and Joan
Taliaferro. "We had to be very open-minded," Taliaferro said. "We
took all their ideas and expectations and figured out how to make it
work."
Debruyn said their biggest concern was that prosecutors' work
had as little disruption as possible. "Our job was to coordinate
things so that they could focus on the business at hand," he said.
The coordinators' tasks included taking a list of nearly 30
witnesses in two of the cases and timing their movements from court
to court to avoid delays in testimony. Debruyn and Taliaferro, who
went through three years of training to be certified for their jobs,
also coordinated security for each courtroom when a particularly
ticklish witness took the stand or was brought to or from court.
They spent most their time in the halls connecting the courtrooms
and the judges' chambers.
Although some involved were skeptical
initially, it appears that it all went as planned. For the Ertman
and Pena families, the biggest concern was the end result -- death
sentences for Medellin, Villarreal and Perez, who have been moved to
death row with Cantu and O'Brien. Randy and Sandra Ertman said
afterward that they were satisfied with the way things were handled
and were relieved it was over. Although Adolph and Melissa Pena
seemed to share the sentiment, Melissa Pena said not being able to
stay together as they had in the prior two trials was difficult. "All
of us not being able to be together was about the worst thing," she
said Friday. "I do thank the judges for waiting so we could hear all
the closing arguments together."
Prosecutor Johnny Sutton, who
handled the Villarreal case, said having an understanding and
flexible judge helped. "The danger is not getting it coordinated
well," Sutton said. "I think in this case, the prosecutors were so
well coordinated and the judges were so reasonable it was able to
work. "I am not ready to sign on for this every time we have a case
with five co-defendants. It will have to be evaluated on a
case-by-case basis." Prosecutor Mark Vinson said, "I would like to
think we would never have to do this again because I would hope that
nobody would go out and create an offense like this again, (but) it
may be a viable alternative. The coordination was excellent."
Vinson,
who prosecuted Medellin, credited the enthusiasm of all involved for
seeing it through successfully. Perez's prosecutor, Marie Munier,
held sentiments similar to Vinson's. Debruyn said that, although the
process was streamlined in these cases, "this is not streamlined
justice, it was just effective justice."
5 killers, 5 trips to death row Last trial ends in rape-murders
09/23/94
Jurors took about 10 minutes Thursday to return a verdict of
death for 18-year-old Efrain Perez, the last of five young men to be
tried on capital murder charges for the savage gang-rape and murder
of two teen-age girls in 1993.
The verdict brought to four the
number of death sentences Harris County jurors handed down to
defendants over three days, the most in so short a time in recent
memory. Perez was the fifth man sentenced to die by injection for
his role in the June 24, 1993, murders of Jennifer Ertman, 14, and
Elizabeth Pena, 16. He will join Peter Cantu, 19, and Derrick Sean
O'Brien, 19, on death row, where they have been since early this
year. Joe Medellin, 19, and Raul Villarreal, 18, whose trials were
held simultaneously with Perez's, were sentenced to death on
Wednesday.
The brutal murder of the two girls, who were attacked
while taking a shortcut home to make a parental curfew, shocked city
residents. The victims' parents, who have attended all five trials,
have had to recount repeatedly to jurors how it felt to awaken and
find that their daughters had failed to return from a party. They
told of the panic that gave way to horror at the news that while
they were printing up fliers with the girls' pictures, police were
finding their battered and decomposing bodies in some woods off T.C.
Jester and West 34th in northwest Houston.
The Ertmans and Penas
have had to listen to excruciating details about their children's
final moments, the repeated sex acts forced on them just before
their lives were strangled, kicked and stomped out of them. They
watched the sneering, scowling bunch of toughs paraded into the
police station after their arrests and they tried to control their
emotions as they sat within a few feet of the young men in court.
Tears flowed and relief showed in the faces of both sets of parents
after the final verdict came in Thursday.
Perez also wept after the
sentence was heard. Melissa Pena, clutching a laminated white doily
with her daughter's picture in the center, said the end of the
trials brought no comfort to her. "Nothing will ever make me feel
good again," she said. "But we'll take it one day at a time." Adolph
Pena thanked his supporters and the jurors and prosecutors "who had
to go through all this. I know it was very difficult."
Randy Ertman
said all parents should learn from his pain that "if you have a
child, make sure you love them because they may not be there in the
morning." His wife, Sandra, said she takes solace in the knowledge
that "those terrorists and killers are off the streets. The city of
Houston can rest easier."
Likely accelerating the jury's decision to
impose the death penalty in Perez's case was his lengthy and violent
history. Testimony showed that he grew from schoolyard brawler to a
robber and murderer, having shot two people and killed a third.
Defense attorney Terry Gaiser said Perez was a follower who fell in
with the wrong crowd. Prosecutor Marie Munier called Perez "a
predatory animal, and Houston and Harris County was his roaming
ground."
Arguing against the defense request for a life sentence,
Munier said: "Just because you put him in a cage doesn't make him
any less a predator. You stick your hand in a lion's cage, and he's
going to try to scratch it." Prosecutor Don Smyth, who also
presented the state's case against Cantu, told jurors that because
of what they know about Perez, "you will hold your loved ones closer
every time you say goodbye."
September has been a month of record-setting
events in Harris County courts. Two weeks ago, an unprecedented six
juries in separate courts were preparing to hear death penalty
cases. This week, the 100th juvenile this year was certified to
stand trial as an adult. In addition to the three death sentences
handed down to the killers of the two teen-age girls, Lionell
Rodriguez, 23, was sentenced to die this week for shooting Tracy Gee,
22, at a Meyerland-area traffic light in September 1990.
Two other
defendants in separate cases narrowly escaped execution and were
sentenced to life in prison. Just as his trial was slated to begin,
Andy Douglas Baptiste, 24, pleaded guilty to capital murder for the
January 1993 slayings murders of a Baytown convenience store clerk
and a customer. And Edward John Benavides, 22, facing capital murder
charges for the slaying of a Pasadena SWAT officer, was convicted of
a lesser charge of murder.
District Attorney John B. Holmes Jr. said
he does not know whether the death penalty total is a record because
it is not the kind of statistic he tracks. "You don't brag about
things like this," he said gruffly. "I am turned off by that kind of
thing. I don't think it is appropriate."
Gang members sent to death row Pair raped and killed two teen
girls
09/22/94
Jurors handed down death sentences Wednesday against two young
men being tried separately in the killings of two teen-age girls,
while another youth is awaiting sentencing in a third courtroom for
his role in their deaths.
Joe Medellin, 19, and Raul Villarreal, 18,
were sentenced to die by lethal injection for the June 1993 gang-rape
and murders of Jennifer Ertman and Elizabeth Pena. The verdicts
returned by juries in state District Judge Caprice Cosper's and Doug
Shaver's courtrooms were the third and fourth death sentences to be
handed down in connection with the Ertman -Pena slayings and the
third rendered in Harris County in less than 24 hours.
Two other
teens -- Peter Cantu and Derrick Scott O'Brien -- were convicted in
the girls' slayings earlier this year and already are on death row.
In an unrelated case on Tuesday, Lionell Rodriguez, 23, was
sentenced to die for the 1990 slaying of 22-year-old Tracy Gee, who
was fatally shot while sitting in her car at a traffic signal. "This
is never a victory. We can't bring the victim back," prosecutor Mark
Vinson said after Medellin was sentenced Wednesday.
Medellin's fate
was discussed by the jury in Cosper's court for about four hours
over Tuesday and Wednesday. Medellin was said to have been the one
that first grabbed the girls as they walked past a drunken gang
initiation. Ertman, 14, and Pena, 16, had taken a shortcut home
after a party and ran into the group near some railroad tracks off
T.C. Jester and West 34th in northwest Houston.
Medellin, who has
displayed little emotion throughout the trial, remained stoic as the
verdict was read, but was said to have tearfully embraced his family
behind closed doors. After the verdict, family members of the
victims and their supporters moved across the hall to Shaver's court,
where they shared a crowded courtroom with Villarreal's family and
friends to await a verdict.
Villarreal was being tested for entry
into the gang led by Cantu, 19, and O'Brien, 19. Villarreal's
involvement in the girls' killings is the only criminal offense he
was known to have committed, which gave defense attorney Ricardo
Rodriguez a glimmer of hope that he could convince jurors to spare
Villarreal.
Jurors in Shaver's court deliberated for 10 hours over
two days before determining that Villarreal should die. Rodriguez
said Villarreal's family was rocked by the decision. "One family
lessens their grief and the other's is increased," he said. "You
always have mixed feelings when a death sentence is handed down for
someone so young," said prosecutor Johnny Sutton. "But when you hear
all the facts in this case you know that this is the only punishment."
Jurors in state District Judge Ruben Guerrero's court will continue
hearing testimony in the punishment phase of Efrain Perez's trial
today. Much of the testimony has been about other shootings,
including a fatal one during a botched robbery, in which Perez is
alleged to have been involved prior to the girls' murders.
Prosecutors Marie Munier and Don Smyth are expected to ask jurors to
return a verdict of death for Perez, 18. The three trials were held
simultaneously over the past two weeks in an effort to save time and
money and to reduce the demands on witnesses.
"He does not deserve to ... live among us ever again'
09/21/94
Prosecutors asked jury members Tuesday to hand down death
sentences against two youths being tried separately in the rapes and
murders of two teen-age girls.
Raul Villarreal, Efrain Perez and Joe
Medellin, whose trials were held simultaneously in separate
courtrooms, were convicted of capital murder last week for killing
Jennifer Ertman and Elizabeth Pena.
The punishment phase of the
trials started Monday for all three defendants, but final arguments
by the prosecution and defense were heard only in Villarreal's and
Medellin's cases as witnesses were still being called in the Perez
hearing.
Among the witnesses called by prosecutor Marie Munier, who
was trying to show that Perez is a continuing threat to society, was
Jose Orellano, who was flown from California to testify before the
jury in state District Judge Ruben Guerrero's court.
Orellano, who
was wounded in a botched robbery in which Jose Adiel Acosta was shot
to death in December 1992, identified Perez as the triggerman in
what until Tuesday was an unsolved murder. Orellano testified that
he and Acosta were shot by Perez as they arrived at a Houston
apartment complex for a wedding.
In state District Judge Doug
Shaver's court, prosecutor Kelly Siegler urged jurors to return a
death sentence for Villarreal, 18, who she said has shown no remorse
for his role in the rapes and strangulations of Ertman and Pena. He
does not deserve to have the right to live among us ever again," she
said.
Defense attorney Ricardo Rodriguez reminded the jury that
assessing the death penalty will not bring the murdered girls back.
"This is not an eye for an eye or a life for a life," he said.
Rodriguez said that the prosecution did not present any evidence
that Villarreal posed a future threat to society and asked the
jurors to sentence him to life in prison. "I am asking you to have
some compassion," he said.
Villarreal was the reason Perez, 18,
Medellin, 19, Peter Cantu, 19, and Derrick Scott O'Brien, 19, were
together the night of June 24, 1993. The youths got together for a
night of drinking and planned to initiate Villarreal into their gang
by making him fight each of them. Shortly after the young men
finished fighting, Ertman, 14, and Pena, 16, walked past.
The girls
had left a party and took a shortcut near T.C. Jester and West 34th
to get home by curfew. They were grabbed by the five teens, raped
and then strangled. Their bodies were found four days later. In
state District Judge Caprice Cosper's courtroom, defense attorney
Jack Millin reminded the jury that giving Medellin the death penalty
will not restore life to the victims. "What you have here is a
chance for saving a life," Millin said.
However, prosecutor Terry
Wilson told the jury that Medellin has a long history of violence
and that he would be a threat to society if he were not sentenced to
death. "This crime was every parent's nightmare. That nightmare has
a face, and there he is," Wilson said, pointing to Medellin.
Prosecutors to seek death for young rapist-murderers
09/20/94
Juries hearing the cases against the last three of five Houston
youths convicted in the rapes and murders of two teen-age girls are
expected to be asked today to sentence them to death. Raul
Villarreal, Efrain Perez and Joe Medellin, whose trials were held
simultaneously in separate courtrooms, were convicted of capital
murder last week for killing Jennifer Ertman and Elizabeth Pena.
On
Monday, jurors in state District Judge Doug Shaver's court heard
from a series of witnesses who said Villarreal showed no signs of
violence before the girls were killed. In separate courtrooms before
state District Judges Caprice Cosper and Ruben Guerrero, witnesses
testified of violent episodes involving Perez and Medellin, one
involving a gang-related shooting and the other a shooting during a
robbery attempt.
Villarreal, 18, was the reason Perez, 18, Medellin,
19, Peter Cantu, 19, and Derrick Sean O'Brien, 19, were together the
night of June 24, 1993. The youths got together for a night of
drinking and planned to test Villarreal's mettle before letting him
join their gang. Shortly after they finished taking turns fighting
the initiate, Ertman, 14, and Pena, 16, walked past.
The girls had
left a party and took a shortcut near T.C. Jester and West 34th to
get home by curfew. After a search by their parents, police followed
up on a tip and found the girls' battered bodies. They had been gang-raped
and strangled. Cantu and O'Brien were convicted in earlier trials
and already are on death row.
On Monday, jurors in Cosper's court
were told that Medellin and Perez showed contempt for authority in
the wake of a gang-related shooting shortly before the Ertman-Pena
slayings. Witnesses testified that the two said "they could take
care of it themselves" rather than let police handle the shooting
incident.
Also, a Harris County Jail deputy testified that he
removed an L-shaped shank from Medellin's mattress Monday morning.
One end of the metal bracket had been sharpened. Defense attorney
Jack Millin suggested that the homemade weapon had been in the
mattress before Medellin occupied the cell.
In Guerrero's court,
evidence was offered about Perez's involvement in a robbery-related
shooting. The shooting victim testified that Perez confronted him on
a northwest Harris County street in the Chimney Hill subdivision
Feb. 8, 1992, and threatened to rape his mother if he did not
surrender his L.A. Raiders jacket.
The youth was shot as he fled and
was hospitalized for a week with chest and shoulder wounds.
Prosecutors said they plan to ask the juries in the cases to
sentence Villarreal, Perez and Medellin to death.
A guilty verdict for the final teen to be tried for the gang rape
and murder of two young friends ended quietly in the courtroom, but
the emotion spilled out to the sidewalk as several anti-death
penalty protesters clashed with victims' families and their
supporters Friday.
A jury in state district Judge Caprice Cosper's
court took only about 15 minutes to decide that Joe Medellin, 19,
was guilty of capital murder. Two other juries found co-defendants
Raul Omar Villarreal and Efrain Perez, both 18, guilty of the same
Thursday.
Prosecutors now will prepare to push for the death penalty
for the trio. The punishment phase is scheduled to begin Monday for
all three. Peter Cantu, 19, and Derrick Sean O'Brien, 19, were
handed death penalties after being convicted earlier this year for
their roles in the slayings of Jennifer Ertman, 14, and Elizabeth
Pena, 16.
Venancio Medellin, Joe's younger brother, received a 40-year
sentence in the juvenile system for aggravated sexual assault.
Ertman and Pena had left a party and were taking a shortcut home
June 24, 1993, when they crossed paths with the six youths engaged
in a drunken gang initiation rite.
The girls were repeatedly raped
before being strangled and stomped to death. Joe Medellin was said
to have been the first to grab one of the girls when they spotted
them near railroad tracks at T.C. Jester and West 34th. Prosecutor
Mark Vinson likened the group to "a pack of wolves" and said the
actions brought "a darkness about this city."
The elder Medellin --
who trembled with tears a day earlier when his brother was sentenced
to six months in jail for refusing to testify against him as he had
against the others -- showed no visible reaction to the verdict.
Adolph Pena and Randy Ertman each leaned over and kissed their wives,
Melissa Pena and Sandra Ertman.
In an effort to ease some of the
stress on witnesses and victims' families, and to save money and
time, state District Judges Cosper, Ruben Guerrero and Doug Shaver
agreed to the unprecedented step of conducting the defendants'
trials simultaneously. Witnesses have been shuttled from court to
court on the same floor with seeming success, but the Ertmans and
Penas were forced to split up so as to hear something from all of
the trials.
Emotions had been well-contained until Friday just after
the families and several dozen of their supporters left the
courthouse and found a lone anti-death penalty protester outside the
door. Ronald Carlson was awaiting back-up for a scheduled protest
outside the courthouse at 1302 Preston when Randy Ertman, Adolph
Pena and Bob Carreiro spotted him.
The three linked arms, creating a
barrier between Carlson and passers-by, pinning him next to a
garbage can and against a wall. "This is the wrong time for you to
be here, man," Randy Ertman said. "I think it is a matter of opinion,"
said Carlson, who added that he came to the courthouse because he
knew the city's media would be there for the trials.
An increasingly
tearful and impassioned crowd, consisting largely of people who have
had loved ones murdered, surrounded Carlson as he moved away from
the three men. They accused Carlson of being insensitive. But
Carlson, whose sister Deborah Thornton was one of death row inmate
Karla Faye Tucker's victims, stood his ground, saying, "There is no
right or wrong place."
Protest planner Jimmy Dunne, head of the
Death Penalty Education Center, finally arrived with one other
protester, an anti-death penalty attorney with her children, ages 9
and 7, in tow and carrying hand-made signs. Dunne struggled to be
heard, especially after a motorcycle rider with opposing views
revved his bike to drown him out. Dunne said he feels compassion for
the families but cannot condone death. "We don't want to do the same
thing the killers do."
He denied being insensitive, saying he chose
to make his platform there because it was a perfect example of "assembly
line justice." "An eye for an eye leaves us all blind," Dunne said,
raising the ire of the crowd, mostly from Justice for All and
Parents of Murdered Children. "Have you been to the morgue? Do you
have a daughter? You are not a victim! How dare you!" were some of
the shouts.
Carreiro's daughter Kynara, 7, and her playmate Kristin
Wiley, 10, were murdered in July 1992. Feeling a kinship in tragedy
with the Ertmans and Penas, he has attended the five trials to show
support. Almost nose-to-nose with Dunne, he challenged him to spend
five minutes in his shoes. "Then we will see how you feel," he said.
"The guy that is executed won't have the opportunity to kill anymore."
Joe Medellin's brother, Jose, stepped up and took a sign from Dunne.
Someone from the crowd asked if he would be there holding a sign if
he had not had a relative facing death. "I don't know," he said
coolly. "I am holding it now." Jeanne Bayley, whose stepson Robbie
was murdered in Bear Creek Park last September, gave this analogy to
justify death for someone guilty of a murder: "Do you teach a pit
bull to bite? No, But once they taste blood, you have to put them to
sleep."
Guilty -- times two Trial continues for last gang member in
Ertman-Pena slayings case
09/16/94
Two more youths have been found guilty of capital murder in the
rape-slayings of two two-age girls caught by a drunken gang as they
took a shortcut home late at night. Raul Omar Villareal and Efrain
Perez, both 18, were convicted Thursday in the June 24, 1993, deaths
of Jennifer Ertman and Elizabeth Pena, while the trial of Joe
Medellin, 19, continues today -- without the testimony of his
juvenile brother, convicted earlier.
Peter Cantu and Derrick Sean
O'Brien, both 19, are already on death row for their roles in the
killings. In an experiment designed to save money, time and stress
for the victims' families and witnesses, the state set the three
remaining defendants' cases to run simultaneously and separately
this week. Ironically, the last to start was the first to finish,
with jurors in state District Judge Doug Shaver's court convicting
Villareal in about three hours.
His trial began Tuesday with Sandra
Ertman's emotional testimony about her "sensitive, modest,
compassionate and childlike" only child. She recounted the agony of
waking to find that her reliable daughter had failed to come home
from a party the night before. She described the outfit her daughter
wore the last time she saw her -- baggy jeans, purple high-tops and
a shirt her father bought her for graduation.
The items, soiled and
torn, were shown the jury by prosecutors Johnny Sutton and Kelly
Siegler. Ertman detailed the copious amounts of jewelry her 14-year-old
daughter insisted on wearing -- two gold chains, several rings and a
Goofy watch -- that were later shared among the gang members, "like
trophies of their night," Sutton said.
The young men were together
that night to initiate Villareal into their gang -- if he could
withstand the customary pummeling of initiates. They gathered near
railroad tracks off T.C. Jester and West 34th to drink and take
turns beating Villareal. Ertman and Pena, 16, anxious to make curfew,
cut across the youths' paths and were repeatedly raped before being
strangled, kicked and stomped to death.
Cantu's brother, Joe,
testified the defendants bragged about the rapes to him, and he
asked them with exasperation, "Who did you kill this time?" He
admitted he was not bothered by what they told him. He said he
helped get rid of a bloody shirt and took some of the jewelry from
them, but ultimately he tipped police at the urging of his wife, who
had been a victim of a gang rape and was having nightmares.
Perez,
whose case began in state District Judge Ruben Guerrero's court on
Monday, stared at the defense table, bracing himself with
outstretched arms and trembled, occasionally swiping a sleeve across
his tear-filled eyes.
The jury returned a guilty verdict against him in about 90
minutes. Prosecutor Marie Munier said she will spend the next three
days preparing for the punishment phase. Pivotal to the state up to
now has been the testimony of Venancio Medellin, 15, who pleaded
guilty in the killings and was sentenced to 40 years in juvenile
lockup. But he balked at testifying against his brother, Joe, being
tried in state District Judge Caprice Cosper's court.
Venancio's
attorney, Esmeralda Pena Garcia, said she told prosecutors he would
cooperate in every case except his brother's. "He said he wanted no
part in the case in which the state was seeking to kill his brother,"
Garcia said. Prosecutor Terry Wilson angrily denied having made any
such arrangement, and as Joe Medellin sobbed and quivered -- his
first public display of emotion in his trial -- an obviously
irritated Cosper sentenced Venancio Medellin to six months in jail,
to be served after his juvenile term is complete. Prosecutor Mark
Vinson said closing arguments would be held today. If Joe Medellin
is convicted, the punishment phase in all three trials will begin
Monday, with the death penalty being sought in all three.
The trials have been running smoothly, with many participants
expressing relief at getting their roles completed at one time.
Perhaps the most difficult aspect has been for the victims'
parents, who have divided time among the trials. But when told the
jurors had made their decisions, the parents positioned themselves
on the front rows of both courts and held hands until the verdicts
were read, then embraced in relief.
3 trials move smoothly in girls' slayings
09/14/94
The simultaneous trials of three defendants accused of raping and
murdering two teen-age girls were held Tuesday without any problems
as court officials juggled witnesses and evidence to keep the
proceedings moving smoothly.
Joe Medellin, 19, Efrain Perez, 18, and Raul Villareal, 18, are
being tried in three different courtrooms on the third floor of the
Harris County Courthouse annex. Just a few feet separate the three
rooms where chilling and graphic testimony is being given in the
deaths of Jennifer Ertman, 14, and Elizabeth Pena, 16. The girls
were walking home late at night in June of last year when they came
across a group of youths who had been fighting and drinking as part
of a gang initiation. The girls were grabbed, gang-raped for an hour
and strangled.
Peter Anthony Cantu and Derrick Sean O'Brien, both
19, already have been sentenced to die, and a juvenile, Medellin's
brother, Venancio, was given a 40-year sentence. The state is
seeking the death penalty for the remaining three. Holding the
trials at the same time is being done to make it easier for
witnesses and to save court costs. "There have not been any problems
yet. There have been no stoppages due to delayed witnesses or any
evidence not being available," said court coordinator Joseph DeBruyn.
However, the decision to try all three defendants at the same time
in different courtrooms was criticized by Andrew Kahan of the city's
Crime Victims Division. "It's a problem for the family members
because they want to be in the court for all the testimony, and they
can't be in all three places at the same time," Kahan said. "But we
will just have to make the best of it. They are shuffling from one
place to another. The positive aspect of this is that in a few weeks,
if everything goes as scheduled, this will all be over for them."
In testimony in state District Judge Ruben Guerrero's court,
where Perez is being tried, the defense moved for a mistrial after a
witness mentioned that the defendants had talked of committing other
crimes.
In response to a question from the prosecution, Joe Cantu, older
brother of Peter Cantu, testified that the defendants had taken part
in at least one other offense. After the defense motion for a
mistrial, the jury was removed from the courtroom. Guerrero then
ruled against the motion, and the trial resumed.
Chilling testimony in trials Three face death in rape-murders
of teen-age girls
09/13/94
Gruesome and often chilling testimony marked the beginning of
simultaneous trials for two of the three remaining defendants
accused of raping and murdering two teen-age Houston girls. The
capital murder trials of Joe Medellin, 19, and Efrain Perez, 18, got
under way Monday in courtrooms separated by just a few steps, and
the trial of Raul Villareal, 18, begins today.
By coincidence, three
other capital murder trials also began Monday, a fact that certainly
will underscore Houston's growing reputation as a center for death-penalty
convictions. Holding the simultaneous trials in the deaths of
Jennifer Ertman, 14, and Elizabeth Pena, 16, is being done to make
it easier for witnesses and the victims' parents and to save money.
Peter Anthony Cantu and Derrick Sean O'Brien have already been
sentenced to die, and a juvenile -- Medellin's brother, Venancio --
was given a 40-year sentence. The state is seeking the death penalty
for the remaining three. So far, the tricky matter of coordinating
witnesses and evidence has not proved a problem. "We thought it
would be, but apparently it's not," said state District Judge Ruben
Guerrero, presiding over Perez's trial. "The biggest problem is with
the physical evidence."
Because the same physical evidence must be
used in all three trials, it is being kept in a central room. After
the evidence is introduced, a photo of it is substituted and the
item returned for use elsewhere. The order of witnesses is slightly
different in each trial to eliminate delays. Because different
officers interrogated each defendant, many of the witnesses do not
overlap.
Ertman and Pena were walking home late at night on June 25,
1993, when, while taking a shortcut across some railroad tracks,
they came across eight boys who had been fighting and drinking. The
girls were grabbed, gang-raped for an hour, strangled and left in an
isolated patch of woods. The bodies were found several days later
after Cantu's brother, Joe, called authorities.
Christina Cantu,
Joe's wife, testified in Perez's trial that the group of young men,
minus O'Brien and Venancio Medellin, showed up at their house in the
middle of the night and gradually revealed their crime, often
laughing about it. "I kept walking out of the room," she said. "I
know what those girls went through. I was crying." She said Perez
admitted holding one end of the shoelaces used to strangle Pena.
In Joe Medellin's trial, Roman Sandoval, one of two gang members who
left when the girls were grabbed, testified he saw Medellin knock
Pena down on the tracks. She cried out for Ertman to help her, he
said, and her friend came running back. Eventually, Sandoval said,
all except his brother, Frank, disappeared down the other side of
the tracks. "I told the others, "Let's go, let's get out of here,' "
Sandoval said. "But there was no reply."
Last trials set this week in girls' slayings
09/12/94
Another chapter in the slayings of Jennifer Ertman and Elizabeth
Pena gets under way this week as the last three defendants are tried
simultaneously before three separate juries. Joe Medellin, Efrain
Perez and Raul Villareal face execution if they are convicted of the
rapes and murders of Ertman, 14, and Pena, 16, whose bodies were
found near some railroad tracks off T.C. Jester and W. 34th in June
1993.
Already on death row for the girls' deaths are Peter Cantu,
19, and Derrick Sean O'Brien, 19. When the trials of Medellin, 19,
Perez, 18, and Villareal, 18, begin, a total of six capital murder
trials -- the most ever at one time -- will be under way at the
Harris County Criminal Courthouse.
Three other defendants also go to
trial this week on capital murder charges in unrelated cases. Late
last week, jurors in state District Judge Michael McSpadden's court
began hearing the case of Edward Benavides, a 22-year-old grocery
sacker and suspected drug dealer who fatally shot Pasadena SWAT
officer Les Early, 28, during a drug raid at Benavides' home, 5526
Robertson.
Also scheduled for trial this week is Lionel Rodriguez,
23, whose earlier capital murder conviction was overturned on a
technicality. Rodriguez is accused of shooting Tracy Gee, 22, to
steal her car because his vehicle was running low on fuel. Rodriguez
was sentenced to die for the September 1990 murder of Gee, who was
fatally shot at a Meyerland-area stop light. Her body was dumped
into the street and her killer drove away in her car.
Also going to
trial early this week on capital murder charges is Andy Douglas
Baptiste, 24, one of five people accused in the execution-style
slayings of convenience store clerk Lanorah June Tetzman of Baytown
and store customer Todd Ray Thompson of Pittsburg, Texas. Today,
state district judges Ruben Guerrero, Caprice Cosper and Doug Shaver
will undertake the unprecedented step of trying three defendants at
the same time on the same floor of the courthouse.
The judges plan
to stagger the starts of the trials today and Tuesday. They opted to
try the three cases simultaneously to save money, time and to reduce
the emotional stress of the victims' families and the witnesses,
some of whom have already testified in two other trials. By the end
of 1994 in Harris County, known as the death-penalty capital of
Texas, court officials expect to have tried at least 22 capital
murder cases, each which could result in the death sentence for the
defendant.
Parallel trials in slayings of girls
07/12/94
Three juries will be seated simultaneously for the capital murder
trials of the last three youths charged with raping and strangling
two young girls in June 1993. Jury selection began Monday for Efrain
Perez, 18, and separate juries will be seated for Jose Medellin, 19,
and Raul Omar Villarreal, 18.
The trials are scheduled to begin Sept.
12, with Perez in state District Judge Ruben Guerrero's court,
Medellin in state District Judge Caprice Cosper's court, and
Villarreal in state District Judge Doug Shaver's court. To expedite
the court proceedings, all the trials will be conducted on the same
floor of the Harris County criminal courts annex, which allow for
swifter exchange of witnesses and transfer of evidence.
Prosecutors
said they do not foresee any serious problems with the simultaneous
trial format in prosecuting the defendants charged in the murders of
Elizabeth Pena, 16, and Jennifer Ertman, 14, on June 24, 1993. The
trials will involve many of the same witnesses covering the same
ground -- the people who found the bodies, the coroner who performed
the autopsies, and others such as evidence technicians.
Harris
County Assistant District Attorney Johnny Sutton, who will prosecute
Villarreal, said he expects witnesses to have an easier time with
the three trials running concurrently; otherwise they would be
coming back to the Harris County Courthouse repeatedly for two more
trials that could take many months. "This way they can have it over
in a few weeks," Sutton reasoned. "They may have to testify three
times back to back, but at least it is over with and out of their
lives."
Perez's attorneys have filed a change-of-venue request with
Judge Guerrero, who will continue to hear arguments on the issue
Wednesday. Defense attorney Jerry Guerinot, who represents
Villarreal, said that if the trials remain in Houston, he does not
believe the defendants can get a fair trial. "The real concern is
publicity," Guerinot said. "I'm sure the media will be there in
droves. If I were a judge, I would move the trial. I think what they
are doing is compromising any chances that they will get a fair
trial."
Prosecutor Mark Vinson, who will handle the case against
Medellin, said that "publicity is not that big of an issue." "The
issue is, can you get 12 fair citizens who have not formed an
opinion one way or another that can hear this case and return a
verdict based on the law and based on the evidence," Vinson said.
Five adults and a juvenile have been charged in connection with the
slayings of Pena and Ertman. Their bodies were found days after they
stumbled onto a drunken gang initiation near T.C. Jester and West
34th.
Ringleader Peter Cantu, 19, and Derrick Sean O'Brien, 19, are
now on death row. A juvenile was sentenced to 40 years in juvenile
custody. State District Judges Bill Harmon and Bob Burdette, who
presided over those cases, were not persuaded to move those trials
outside Harris County because of the publicity.
Local crime victims form lobbying group
07/09/94
Parents whose children were slain, women who were raped, and
others whose lives have been scarred by violent crime gathered
Friday at City Hall to announce creation of a new anti-crime
lobbying group -- the Houston Crime Commission. "The criminal
element in this society completely dictates the way we live our
lives," said state District Judge Mike McSpadden, who participated
in the announcement of the group to lobby for crime reform and to
assist in raising funds for victims of violent crime. "Five percent
of the population commits the crime, and the other 95 percent live
in fear," said McSpadden. "This group is our chance to do something
about it."
The father of a jogger killed by a group of young men in
MacGregor Park last month asked all Houstonians, not just those
directly affected by crime, to help. Levi Perry Jr., the 38-year-old
son of Dr. Levi Perry, was running in the park when he was attacked
and shot to death by four men who have yet to be arrested. "This is
a bad situation, when people live a good life and someone takes it
away. It's not right," said Dr. Perry.
Watching quietly was Randy
Ertman, whose daughter Jennifer Ertman, 14, was slain with her
friend Elizabeth Pena, 16, a year ago. The two girls were raped and
strangled near T.C. Jester Park as they walked home. Two of five
gang members have been convicted and sentenced to death in the
slaying. Three are awaiting trial. Robert G. Carreiro stood and
watched, too, as lawyers and judges and City Council members offered
the new commission their support.
Carreiro wears a tattoo of his
daughter, Kynara, 7, who was stabbed to death with Kristin Wiley,
10, in 1992. A former neighbor has been charged in the crime. Hester
Pollard held up a sign saying "He got 5 years. I got life." She was
attacked in her apartment 21 years ago by a man who poured acid on
her face. She has since had 59 operations trying to repair the
damage. "It has affected every area of my life, my relationships, my
employment," she said.
The man who committed the crime served five
years in prison. Pollard is a registered nurse but is unable to get
a job, she said, because of her scars. "The people that interview me
say, "How would patients deal with your appearance?' We do not live
in a caring society. It's hard to compete when you're abnormal." She
believes, as do other victims of crime, that the new commission will
help. "Maybe, if enough victims fight, make noise, let the
government know we're here, people will listen," she said. One of
the first items on the agenda of the organization is to fight the
early release of Texas inmates.
Service held for girls a year after slayings
06/26/94
Melissa Pena released a butterfly from a small plastic bag
Saturday during a memorial service at T.C. Jester Park. The insect
stood on her finger for several minutes, flapping its colorful wings;
then it flew away. The service was for Melissa and Adolph Pena's
slain daughter Elizabeth, 16, and her friend Jennifer Ertman, 14.
A year ago last Friday, the two girls were raped and strangled near
the park as they were walking home. The butterfly on Pena's finger
and 49 others were released during the service as a symbolic gesture,
said Dianne Clements, a family friend who organized the service. "The
butterflies are free; they are not earthbound," she said. The 50
butterflies were donated by breeder Hoa Chua.
An estimated 200
people gathered under two large trees near the back edge of the
northwest Houston park. Under one of the trees, two white crosses
had been erected. They were surrounded by dozens of flowers and the
girls' pictures. During the service, Earl Hatcher, a neighbor and
friend of the Ertman family, spoke on the family's behalf. He said
the family had not dwelled on hatred and self-pity and wanted to
thank everyone for their diligence, compassion and support.
He said
he and Sandra Ertman wrote the remarks for the service. And Sandra
Ertman selected the poem "I'm Free" to be read on her daughter's
behalf. Elizabeth Pena's aunt, Patti Zapalac, spoke on her family's
behalf. She read a brief poem. "I think it's an absolutely amazing
tribute to the girls that people continue to come to this park day
after day," said Zapalac after the service. As Jane Vandiver sang
her rendition of Eric Clapton's Grammy-award winning song "Tears in
Heaven," many in the crowd wiped away tears.
Six youths were charged
in the girls' murders. Two have been sentenced to death, a juvenile
was sentenced to 40 years and the others await trial. "A year has
passed, yet our hearts still yearn," said the Rev. Sara Owen-Gemoets,
pastor of Grace United Methodist Church. City Parks Director William
Smith said Friday that the city is researching a request to rename
the park for the two girls.
Anytime a request comes in, he said, the
department has to investigate whether the park land was donated to
the city with a covenant attached to it. If no covenant is found, a
notice will be posted for 45 days in the park asking residents to
offer their opinions about a name change. Then the parks department
will deliver a recommendation to the City Council. But during the
entire process, Smith said, "The position of the department is
neutral."
Reliving a family tragedy Teen girls slain a year ago today
06/24/94
For the past year, Sandra Ertman has grieved for her teen-age
daughter, who was savagely raped and killed a year ago today. She
has tried to cope, but knowing that she must sit through three more
trials is almost too much to bear. Jennifer Ertman, 14, and her
friend Elizabeth Pena, 16, were tortured and killed after crossing
paths with a group of male youths near T.C. Jester Park. They were
walking home from a party late at night and took a short-cut through
the woods. I
n the past year, two youths were sentenced to die for
the killings and a juvenile was sent to jail for 40 years. This
summer, two more defendants will be tried, forcing the families to
continue reliving the tragedy and to hear the gory details again and
again. "The trials, believe me, are not easy," Sandra Ertman said. "It
puts you in a very deep depression. But we do have to be there for
our daughters." To mark the anniversary, Ertman and her husband,
Randy, have planned a memorial service for 1 p.m. Saturday at T.C.
Jester Park. They will place two white crosses there in memory of
the girls.
Derrick Sean O'Brien, 19, and Peter Anthony Cantu, 19,
are on death row for their part in the murders. Awaiting trial are
Efrain Perez, 18; Jose "Joe" Ernesto Medellin, 19; and Raul Omar
Villarreal, 18. Medellin's younger brother, Vinny, 15, is serving a
40-year sentence. With some justice carried out, the loss has become
a little easier over time, Ertman said. One year ago, a drive past a
swimming pool or a Taco Bell would leave Ertman in tears. Her
daughter loved both.
Now, she still cries, but not every day. "What
you do, like an alcoholic, is take it one day at a time," she said.
"You just never know when you wake up in the morning what kind of
day you will have." The families have also coped by working with
victims' rights groups and with children. They believe their
daughters would have approved.
The murders outraged the city and
generated extensive press coverage. Strangers grieved with the
families. Harris County prosecutor Steve Baldassano said he has
never worked on a case that received so much publicity. It was, he
said, his toughest case of the year. "I remember driving down Kirby
and I was doing my final argument in the car and I was really choked
up," he said. Baldassano said the case wasn't hard to prove because
of the facts, but it was hard to deal with the attention it drew. "They
were girls who had nothing to do with anything, but were just late
for curfew," he said. "They weren't in a gang, they weren't shooting
up drugs."
The girls were gang-raped, kicked, stomped and finally
strangled with a shoelace and O'Brien's red nylon belt. Nan Gurski
of the group Parents of Murdered Children sat with the families
during the trials and will sit with them when they resume in July.
Gurski thinks the case has received so much attention in the past
year because the public can relate to the parents' fears.
Memorial crosses approved by city
06/23/94
City officials Wednesday approved a father's request to place
memorial crosses in T.C. Jester Park near where his teen-age
daughter and her friend were raped and murdered.
After receiving a
legal opinion on the matter, the Parks and Recreation Department has
approved the request by Randy Ertman, the father of one of the girls,
said Susan Christian, assistant parks director. Ertman asked the
city if two homemade crosses could be placed in the park Friday in
memory of his daughter Jennifer, 14, and her friend Elizabeth Pena,
16. The two girls were killed a year ago Friday as they were walking
home from a party.
City Attorney Benjamin L. Hall III concluded that
there is no law permitting or prohibiting such memorials on city
property. However, Don Sanders, a Houston atheist activist, said the
erection of the crosses on public property violates the principle of
separation of church and state, and said he will go to court if
necessary to prevent it. The crosses were made by the victims'
friends at Waltrip High School. "I think it's a beautiful gesture on
the part of the kids," Ertman said.
A memorial service is planned
for 1 p.m. Saturday at the site. Ertman said the city has offered to
supply the public address system for the short service. Six youths
were charged in the murders of Pena and Ertman. Two have been
sentenced to death and a juvenile was sentenced to 40 years. The
others are waiting for trial.
City plans to OK memorial crosses T.C. Jester Park site
selected near where 2 girls slain
06/22/94
The city plans to approve a request by a slain girl's father to
place memorial crosses in T.C. Jester Park, near where the girl and
a friend were slain a year ago this Friday. Because of
considerations over the mingling of church and government, City
Parks Director William Smith asked City Attorney Benjamin L. Hall
III for an opinion about the three crosses, made by friends of the
victims.
Hall's response was there are no existing laws permitting
or prohibiting the erection of such memorials on city property, and
city officials plan to move ahead with the project. "You'd have to
be a blithering idiot to stand in the way of something like that,"
said Dave Walden, chief of staff to Mayor Bob Lanier. "As long as
it's legal and we can justify it, anyone can sue if they want to."
The girls, Jennifer Ertman, 14, and Elizabeth Pena, 16, were raped
and strangled near the park as they were walking home in northwest
Houston the night of June 24, 1993. Six youths were charged in their
murders. Two have been sentenced to death; a juvenile was sentenced
to 40 years and the others await trial. Ertman's father is to meet
with city officials today to discuss plans for the installation of
the crosses. Elizabeth Pena's birthday was Tuesday.
Ertman was
quoted as saying he did not understand the city's slowness in
responding to his request. "The possible confusion may derive from
the fact I had to get guidance from the Legal Department," Smith
said Tuesday night. "I've gotten guidance on that, and we can make
the decision to do that. Part of the confusion may also come from
that I was ill today (Tuesday) and didn't take his (Ertman's) call.
We have a lot of empathy with those families and we want to show our
concern with their situation. I'm a parent, too. Even though those
two awful murders didn't occur in that park, I believe it's a good
idea (to erect a memorial)."
The late County Commissioner Bob Eckels
once erected a Christian cross in the county's Bear Creek Park,
sparking protests by the American Civil Liberties Union. Its claim
that the cross violated the constitutional separation of church and
state forced Eckels to remove the cross.
DNA test links murder suspect to another killing
05/03/94
Authorities have positively linked a teen-ager, already accused
of participating in the gang rape-slaying of two young girls last
summer, to the brutal murder of another woman five months earlier.
Semen found on the body of 27-year-old Patricia Lopez on Jan. 4,
1993, and blood samples recently taken from Jose Ernesto Medellin,
19, matched genetically, sources close to the investigation said
Monday.
The positive match made through DNA testing suggests that
Medellin raped the woman before she was stabbed to death and left to
die in a northeast Houston park in the 400 block of Carby, sources
said.
Medellin is awaiting trial in the rape-slayings of Jennifer
Ertman, 14, and Elizabeth Pena 16, on June 24. The girls took a
short cut home to meet a parental curfew when they came upon a group
of youths off T.C. Jester and West 34th Street and were attacked.
Peter Anthony Cantu, 19, and Derrick Sean O'Brien, 19, have been
convicted of capital murder and sentenced to death by lethal
injection for their roles in the girls' brutal deaths. Days before
O'Brien's trial started last month, investigators confronted him
with information linking him, Medellin and Cantu to Lopez's death.
O'Brien gave a statement to authorities about the Lopez murder.
Details of Lopez's death and O'Brien's statement were revealed
during the punishment phase of his trial. Lopez ran out of gas and
was looking for help when the trio found her and offered gas money
in exchange for beer.
Further testimony showed O'Brien bragged that
he had told Lopez he would kill her if she could not arouse him. She
was found with her throat and abdomen slashed open, her clothes torn
off and scattered about. A beer can bearing O'Brien's fingerprint
was discovered beneath her body.
Blood samples were obtained from
O'Brien, Cantu and Medellin, but only Medellin's positively matched
semen found on Lopez's body, sources said. It is unlikely that Cantu
and O'Brien, now on death row, will be charged with Lopez's murder.
Unless Medellin is found not guilty, the information will likely be
used during the punishment phase of his trial, similar to the way it
was used in O'Brien's trial, sources said. "I think they should file
some more charges," Cathy Lopez, Patricia Lopez's mother-in-law,
said. "I think whatever they did, no matter how much there is, they
should stand trial for every single thing." Medellin's attorney,
Jack Millin, said he was surprised. Based on conversations with his
client, "I had no reason to think he would be a positive match."
O'Brien gets death sentence
04/10/94
After days of testimony painting Derrick Sean O'Brien as an teen-ager
with a propensity for crime, alcohol and mistreating women that
likely included the rape and evisceration of a woman, a jury took
only 33 minutes to decide he should die. O'Brien, 19, was
immediately escorted from the courtroom as many in the audience
quietly sobbed. He was convicted Thursday of capital murder for his
role in the 1993 rapes and murders of Jennifer Ertman and Elizabeth
Pena.
The families of the girls occupied the front row throughout
the trial and Saturday their supporters occupied three of the five
rows in State District Judge Bob Burdette's courtroom. New among
them were relatives of Patricia Lopez, whom the state said died by
O'Brien's hand six months before the girls' bodies were found. As
many in the crowd embraced in celebration of the verdict, Cathy
Lopez and her family sobbed in relief.
Peter Anthony Cantu, 19, is
already on death row as the leader of the gang that savaged Ertman,
14, and Pena, 16. Cantu, O'Brien, Jose Ernesto Medellin, 19, Raul
Omar Villarreal, 18, Efrain Perez, 18, and Vinny Medellin, 14, were
gathered June 24 in a clearing off T.C. Jester and West 34th Street,
drinking beer and taking turns pummeling an initiate into their gang
when the girls happened past while taking a shortcut home.
The girls
were gang raped, kicked, stomped and finally strangled to death with
the two things the young men had handy -- a shoelace and O'Brien's
red nylon belt. There was little going for O'Brien when the state
began laying out its case. Witnesses said O'Brien raped the girls
before handing over his belt to help strangle them, straining and
grunting as he pulled one end of it to choke the life from a
flailing Ertman.
Once arrested, he tearfully confessed and led
police to a broken piece of his belt which he kept like a trophy
after fleeing the death scene. After jurors found him guilty, the
story of O'Brien's past began to unfold. Elementary school teachers
told of a boy who, at age 11, would rage so intensely he had to be
physically restrained. Psychologists who worked with him evaluated
him as being of average intelligence, with a problem working math
and an increasing resistance to authority. He was also building a
habit of blaming others for his bad behavior.
Alicia Siros, 17, testified that O'Brien and classmate Cantu were among a group of
boys who dragged her off of a swing set and around a park. Outside
of school, O'Brien continued his drinking and sometimes drugging and
passed the time bouncing around in stolen cars -- at least 45 of
them before his arrest last July.
He threatened to kill his
girlfriend when she tried to break up with him. But the most damning
evidence to be presented against O'Brien was coming to light behind
the scenes of the trial. Joe Cantu, whose tip that his brother and
his friends had bragged about the Ertman and Pena slayings led to
arrests in that case, called authorities again and told them O'Brien
had bragged of another murder.
Prosecutor Steve Baldassano said they
knew little when they turned to Houston police Officer Todd Miller
and asked him to search for the case. The case that emerged was that
of Patricia Lopez, 27, who was found with her throat and abdomen
slashed open, her clothes torn off and scattered about a northeast
Houston park.
When confronted in jail recently, O'Brien admitted
that he, Cantu and Medellin bought Lopez gasoline in exchange for
beer. A friend of O'Brien's testified that O'Brien told him that he
had ordered Lopez to give him oral sex or die and that he killed her
when she failed to arouse him.
A belt, with the same belt buckle and
type of belt he handed over to kill Ertman, and the same type he
wore upon his arrest, was found under her neck. O'Brien, whose
fingerprint was found on a beer can under Lopez's right knee, said
he was simply a drunken bystander in the incident. Before turning
the case over to the jury, prosecutor Jeannine Barr said O'Brien had
proved incorrigible. His history of "wilding and criming with his
friends" should "make your blood boil," she told the jury. O'Brien,
"packed 50 years of crime into 19," Baldassano said.
Williams and co-defense
counsel Steven Greenlee maintained their client used the gang to
fulfill insecurities he felt after a disrupted childhood, an abusive
stepfather and oft-absent mother. Greenlee said O'Brien has been
prepared for the sentence. "He told me he would prefer they would
give him death because he couldn't spend 35 years in prison."
Witness: O'Brien admitted killing Jurors in sentencing told of
his link to unsolved murder
04/09/94
Derrick Sean O'Brien told a friend that it was true what others
were teasing him about -- that O'Brien had killed a woman because
she could not arouse him, a witness testified Friday. Jurors, who
Thursday convicted him of capital murder for his role in the
slayings of Jennifer Ertman and Elizabeth Pena last summer, listened
as investigators and witnesses put the pieces of evidence together
linking O'Brien to an unsolved murder six months earlier.
O'Brien,
Peter Anthony Cantu, Jose Ernesto Medellin, all 19; Raul Omar
Villarreal, 18; Efrain Perez, 18; and Vinny Medellin, 14, were all
charged in the girls' slayings. Cantu was sentenced to die last
February for leading the group from a drunken night of gang
initiation into the gang rape and stranglings of the girls who took
a shortcut home from a party on June 24. Their brutalized bodies
were found in a clearing off T.C. Jester and West 34th Street.
The
Medellin's middle brother, 17, also named Jose, testified that
O'Brien, Cantu and brother Jose Medellin were gathered at Cantu's
home early last year when Cantu said that "Sean O'Brien had killed
this girl some days ago and that Sean had tried to rape her and he
couldn't so he killed her." Medellin said he was skeptical until
O'Brien chimed in saying he forced her instead to have oral sex and
told her if he could not be aroused he would kill her.
The woman,
who was found stabbed to death in a northeast Houston park on Jan.
4, was later identified as Patricia Lopez, 27. Houston police crime
scene investigator K.H. Webb told of finding a Budweiser beer can
under Lopez' body. A fingerprint expert testified that a print from
the can matched O'Brien's right ring finger. O'Brien, who has not
been charged with Lopez' murder, has given a statement to police
placing him with Jose Medellin and Cantu. Closing arguments are
scheduled for today. Jurors will be deciding whether to give O'Brien
death or life in prison.
O'Brien convicted of killing 2 girls
Jurors take 90 minutes in decision
04/08/94
Derrick Sean O'Brien was convicted Thursday of
the capital murders of two teen-age girls raped and killed when they
stumbled into a gang initiation while taking a shortcut home.
Jurors took only 90 minutes to convict O'Brien in
state District Judge Bob Burdette's court. O'Brien, 19, who admitted
to police he handed over his belt to be used to strangle Jennifer
Ertman, 14, and Elizabeth Pena, 16, after raping the terrified pair,
stared straight ahead and showed no emotion after the verdict.
Testimony showed he had a direct hand in helping
to strangle Ertman. The family of the victims said they would
reserve comment until after the case is complete, though Randy
Ertman, Jennifer's father, offered thanks to all who have been
showing support.
O'Brien is the second teen convicted of capital
murder in the June 24 slayings. The girls were gang-raped, stomped
and strangled when they took a shortcut to Pena's house across
railroad tracks near T.C. Jester and West 34th in northwest Houston.
The girls wanted to be home to meet a parental
curfew, but stumbled into a gang initiation led by Peter Anthony
Cantu. Cantu, who lead the violence against the girls, was convicted
in February and sentenced to death by lethal injection.
Three other teens, Efrain Perez, 18; Jose "Joe"
Ernesto Medellin, 19; and Raul Omar Villarreal, 18, are awaiting
trial for capital murder. All could get the death penalty.
Medellin's younger brother, Vinny, is serving a 40-year sentence --
the maximum under juvenile law -- for his part in the rape-killings.
Before turning the case over to the nine-man,
three-woman jury, prosecutors Steve Baldassano and Jeannine Barr
gave closing statements rehashing some of the testimony presented
since Tuesday.
Jurors heard from two brothers who passed the
girls as they walked toward the drunken bunch the brothers had just
left, and who saw Jose Medellin grab Pena by the arm.
Vinny Medellin, then 14, described how the boys
took turns raping the girls, and how O'Brien and Villarreal tugged
at each end of O'Brien's red nylon belt as it encircled Ertman's
neck.
Testimony showed a large piece of the nylon belt
was found in O'Brien's apartment. Jurors heard O'Brien's statement
in which he confessed to raping the girls but portrayed himself as a
bystander to the murders.
He told of his concern that beer cans left
littered around the bodies might have fingerprints that could link
the gang to the girls' bodies. A noise he heard coming from the
murder scene frightened him away from collecting the cans later that
night because he thought the girls were still alive. "If you are not
talked into the fact that this defendant is guilty, I don't know
what else to say," Baldassano told jurors.
Defense attorney Connie Williams tried to
discount Vinny Medellin's testimony. He also suggested O'Brien's
statement was improperly obtained, though the state provided
substantial evidence that it was legal. "Give him the label he
richly deserves," Barr said. "Label him what he is and that is a
capital murderer."
After the verdict, the state moved into the
punishment phase, presenting one witness after the other to show how
O'Brien grew from a troubled fifth-grader into a prolific car thief.
Testimony showed he used alcohol and drugs heavily. The jury must
sentence him to death or a life prison term that can't end in parole
until he's served 35 years.
When testimony continues today, investigators are
expected to testify to O'Brien's jail statement regarding the murder
of a woman six months before the Ertman and Pena deaths.
Sources have confirmed that O'Brien has admitted
being present during the rape and murder of Patricia Lopez, a 27-year-old
mother of two whose body was found in a northeast Houston park Jan.
4, 1993. She had been raped, disemboweled and her throat cut.
O'Brien has told investigators that he, Cantu and Jose Medellin
approached Lopez after she ran out of gas and pushed her car to a
station in exchange for beer.
Suspect's videotape details '93 slaying
04/07/94
Derrick Sean O'Brien, on trial for his alleged
role in the rape-slaying of two teen-age girls last summer, gave a
videotaped statement to police last week that he was present during
the rape and killing of another woman last year.
O'Brien was questioned after homicide
investigators received a tip that he and two other Houston teens
implicated in the slayings of 14-year-old Jennifer Ertman and 16-year-old
Elizabeth Pena had bragged about killing Lourdes Patricia Lopez, a
27-year-old mother of two.
The tipster is listed in court records as Joe
Cantu, the brother of Peter Anthony Cantu, 19, who was convicted of
capital murder and sentenced to death in February for his role in
the deaths of Ertman and Pena. Joe Cantu's previous tip led
investigators to Peter Cantu, O'Brien, Jose "Joe" Medellin, 19,
Efrain Perez, 19, Raul Villarreal, 18, and Venancio "Vinny" Medellin,
then 14, who have all been charged in the Ertman/Pena case.
Authorities declined to provide details, but
sources said O'Brien also placed Peter Cantu and Jose Medellin at
the scene of the Lopez murder.
Lopez's body was found Jan. 4, 1993, in a parking
lot at Melrose Park in the 1000 block of Canino in northeast
Houston. Her body was naked from the waist down. She had been raped,
disemboweled, and her throat cut.
O'Brien has told investigators that he, Peter
Cantu and Jose Medellin approached Lopez after she ran out of gas.
The trio offered to push her car to a convenience store for gas in
exchange for beer, which they were not old enough to buy legally,
sources said.
The youth, now 19, did not say where the store
was or where they found Lopez, but that after getting beer and gas,
all four left the store together. It was not clear from his
statement whether Lopez went willingly, sources said. O'Brien said
he was "too drunk to know who did what" but maintained that he had
nothing to do with her rape or murder, sources said.
Fingerprints found on a beer can beneath the
woman's tortured body matched O'Brien's, sources said. Results of a
DNA test comparing tissue and blood of O'Brien's to semen on the
victim cleared him of having intercourse with her, sources said.
Peter Cantu just recently complied with a request
for blood and tissue samples, but neither he nor Jose Medellin has
made any statements regarding the Lopez case, sources said.
In O'Brien's current capital murder trial, jurors
Wednesday listened as O'Brien's statement regarding the Ertman/Pena
murders was read. In it, he admitted being present, having sex with
the two girls, and allowing his nylon belt to be used to strangle
Ertman.
Ertman and Pena were killed June 24 when they
took a shortcut to Pena's house in northwest Houston and stumbled
into a gang initiation lead by Peter Cantu.
According to his statement, O'Brien later
expressed concern that beer bottles left over from the gang rite and
drinking party would be found with their fingerprints on them.
Cantu sent him to retrieve them but O'Brien said
he turned back when he neared the area because he thought he heard a
noise and that the girls might be alive. "Peter said no way, not to
worry," the statement read. The state rested its case and closing
arguments are expected today.
Perez, Jose Medellin, and Villarreal are awaiting
trial for capital murder in the case. All of the defendants face the
death penalty. Medellin's brother Venancio is serving a 40-year
sentence -- the maximum under juvenile law -- for his part in the
rape-slayings.
O'Brien trial focuses on red belt used to kill girl
04/06/94
A large piece of the red nylon belt used to strangle to death one
of two teen-age girls last summer was found in Derrick Sean
O'Brien's apartment, a Houston homicide investigator testified
Tuesday. Detective Todd Miller was among the witnesses to take the
stand as testimony began in O'Brien's capital murder trial.
O'Brien
is the second teen to go on trial for his role in last summer's gang
rape-slaying of two girls. The gang leader, Peter Anthony Cantu, was
convicted of capital murder and sentenced to death in February.
Three others are awaiting trial. Jurors, who were returned to
seclusion at the close of testimony Tuesday, heard details of the
final hours of Jennifer Ertman and Elizabeth Pena as told by
witnesses starting with Ertman's mother and ending with a juvenile,
who pleaded guilty to raping Ertman and was sentenced to 40 years,
the maximum under juvenile law.
After a frantic search by their
families, the battered bodies of Ertman, 14, and Pena, 16, were
found June 28 near some railroad tracks off T.C. Jester and W. 34th
in northwest Houston. The girls apparently stumbled into a drunken
gang ritual four days earlier on June 24 when they took a shortcut
home.
Though the order of witnesses has changed, the testimony
closely resembled testimony heard in Cantu's February trial.
Ertman's mother, Sandra Ertman, described the last time she saw her
daughter, saying goodbye with an "I love you" as she left for the
grocery. A girlfriend of the girls' testified to seeing the pair at
the pool party they attended just before their deaths.
The juvenile,
Vinny Medellin, 15, who testified for the prosecution in the Cantu
trial, testified against O'Brien Tuesday, telling of watching
O'Brien and Raul Villarreal, 18, strangle the life out of Ertman.
O'Brien and Villarreal wrapped O'Brien's red nylon belt around a
kneeling Ertman's neck and pulled so hard it broke, the young man
testified.
Detective Miller said once in custody, O'Brien led him to
his apartment where he produced the large piece of the belt. Judge
Bob Burdette has ordered the jury in this case sequestered after
having dismissed a juror who admitted he discussed the case against
O'Brien with a friend.
The friend apparently alerted the juror to
news reports that O'Brien was being investigated in connection with
the murder of another woman. Search warrants were served last week
seeking blood and tissue samples from Cantu, O'Brien and Jose "Joe"
Medellin, Vinny's 19-year-old brother, in an effort to link them to
the rape, stabbing and strangulation of Lourdes Patricia Lopez.
The
27-year-old mother of two was found in the 400 block of Carby in
northeast Houston Jan. 4, 1993. Efrain Perez, 18, Medellin, 19, and
Villarreal are awaiting trial for capital murder in the Ertman-Pena
case. All of the defendants face the death penalty.
Judge to sequester jury in slaying case
Teen accused in rape,
death of 2 girls
04/05/94
The judge overseeing the capital murder trial of one of the
youths accused in the rape-slayings of two teen-age girls said
Monday the jury will remain sequestered throughout the trial. State
District Judge Bob Burdette announced his decision after having
dismissed a juror who admitted he discussed with a friend the case
against Derrick Sean O'Brien, 19.
The friend apparently alerted the
juror to news reports that O'Brien was being investigated in
connection with the murder of another woman. To allow jurors time to
pack enough clothes to last to Saturday, Burdette scheduled
testimony in the case to begin today.
O'Brien is accused of
participating in last summer's murders of Jennifer Ertman, 14, and
Elizabeth Pena, 16. Assistant Harris County District Attorney Steve
Baldassano told jurors how Ertman and Pena were at a pool party the
night of June 24, while a mile away, O'Brien and his companions
prepared to initiate a new member into their gang. The beer drinking
and fist fights included in the initiation were under way as the
girls were preparing to take a shortcut across railroad tracks near
T.C. Jester and West 34th in northwest Houston to be home by curfew,
Baldassano told jurors.
The girls were grabbed as they attempted to
walk past the group. The defense declined to make an opening
statement. In February, Peter Anthony Cantu, believed to have been
the gang leader, was convicted of capital murder and sentenced to
death for the rape-murder of the two girls. Capital murder is
defined as a killing that has occurred in the course of another
felony.
The other suspects, Efrain Perez, 18, Jose Ernesto Medellin,
19, and Raul Omar Villareal, 18, are awaiting trial. All of the
defendants face the death penalty. A juvenile, Vinny Medellin, 15,
pleaded guilty to raping Ertman and was sentenced to the maximum
under juvenile law -- 40 years.
He testified for the prosecution in
Cantu's case and is expected to do the same in O'Brien. Defense
attorneys have said O'Brien had a troubled childhood and that he has
shown remorse since the Ertman-Pena killings as evidenced by two
suicide attempts in jail. Search warrants were served last week for
blood and tissue samples from Cantu, O'Brien and Medellin in an
effort to link them to the rape, stabbing and strangulation of
Lourdes Patricia Lopez.
The body of the 27-year-old mother of two
was found in the 400 block of Carby in northeast Houston Jan. 4,
1993. Defense attorney Connie Williams said he believed the
publicity so close to the start of the trial tainted the jury and
asked Burdette to dismiss the panel. Burdette agreed to poll the
jury about what members may have read about the case after the one
juror admitted he knew about the other killing, and was dismissed
from the panel.
Recent events shed light on earlier victim
04/02/94
Patricia Lopez died the way she lived -- hard. Her death, like
her life, was of interest to only a few people: the investigators
assigned to the case, the estranged husband they first suspected,
the two small children she left behind.
Two years later, there is
renewed interest in the death of Patricia Lopez, who police now
believe may have been a victim of young gangsters now facing capital
murder charges in the highly publicized murders of two teen-age
girls last summer.
Peter Anthony Cantu, Jose "Joe" Medellin, and
Derrick Sean O'Brien, all 19 and all accused in the brutal 1993
rape-slayings of 16-year-old Elizabeth Pena and 14-year-old Jennifer
Lee Ertman, are now suspects in the earlier death of Lopez. Pena and
Ertman were killed June 24 when they stumbled across an initiation
rite being conducted by the Black and White Gang, a small group led
by Cantu.
Cantu is on death row, convicted and sentenced in February
for his role in the two deaths. O'Brien and Medellin both await
trial on charges of capital murder. The gang members were arrested
after Joe Adam Cantu, Peter's older brother and a former Black and
White Gang member disgusted by his little brother's violence, tipped
police.
Sources say it was again the elder Cantu who told
investigators recently that his brother, Medellin and O'Brien had
boasted in January 1993 of raping a woman at Melrose Park after she
ran out of gas. Thursday, police got permission to take blood and
tissue samples from Cantu, Medellin and O'Brien, for comparison with
samples taken from Patricia Lopez's body.
Patricia was last seen on
Dec. 31, 1992, when she went by her mother-in-law's house in the
1100 block of Warwick to see her estranged husband, Joe Lopez, and
their two children. "The kids weren't here," said Joe's mother,
Cathy. "She left crying, because she wanted to see them so."
Patricia's son and daughter, now 10 and 11, would never see their
mother again. Early in the morning of Jan. 4, 1993, a Houston patrol
officer checking Melrose Park in the 1000 block of Canino found
Patricia's body, naked from the waist down, in a back parking lot.
She'd been raped, then stabbed repeatedly.
As soon as they heard,
Joe and Cathy went to the park, just down the street from their
house. "There was so much blood," Cathy said. "Blood on the ground,
on a post to keep cars out. And beer cans, Budweiser, all over, like
a big party." When Joe Lopez went downtown with detectives afterward,
Cathy said, "He had no idea they would think he had done it. They
kept him for hours, and the kids were so upset and needed him here.
"And then, after that, we kept in touch with the police for a while,
but there just didn't seem to be any clues."
Cathy Lopez was shocked
to learn that police suspected the trio in Patricia's death: "Oh my
God, Cantu? That animal?" Still, she said, it would be a blessing to
have the case resolved. "We always felt more than one person killed
her," said Cathy Lopez. "She was very strong.
She would have fought."
"I'm glad Patricia is going to get some attention finally, even if
it's because the people who killed her are famous," said Rebecca
Delgado, who described herself as "a friend of Patricia's, when she
would let anyone be her friend. "Patricia was lost. She and her
mother had a real bad relationship, and she had a hard life, and she
never really seemed to get past it. But she was human, you know.
Sometimes she'd feel real bad about herself, and her kids, and she'd
decide to straighten up and do right. She may have, someday, too,
but they didn't give her that chance, did they?"
Cathy Lopez said
most of Patricia's problems stemmed from her use of drugs, "but she
could be a sweet person when she wasn't using them. She liked to do
things for people. She wanted to be liked. "And what it comes down
to is, nobody deserves what she and those other girls got, do they?"
Girls' slaying trial may be postponed Teen a suspect in
another death
04/01/94
Revelations that a young man scheduled for trial Monday in the
rape-murders of two teen-age girls is a suspect in another murder
will likely cause his trial to be delayed. Defense attorney Connie
Williams said he will ask that the jury impaneled to hear the
capital murder case against Derrick Sean O'Brien be thrown out
because of the latest publicity. O'Brien is the second of five
suspects to be tried for the deaths of Jennifer Ertman, 14, and
Elizabeth Pena, 16.
The young women were sexually assaulted and
murdered last June as they took a shortcut to get home before curfew.
"I tell you, after the article, I guess the first thing we are going
to do is probably ask this panel to be excused," Williams said,
referring to a story in Wednesday's Chronicle that said authorities
are seeking blood and tissue samples from O'Brien, 18, Peter Anthony
Cantu, 18, and Jose Medellin, 19, that could link them to a murder
prior to the girls' murders.
Prosecutors would not comment on the
latest developments. The case against the young gang members has
gotten a lion's share of publicity both locally and on national
tabloid television shows since the bodies of Ertman and Pena were
discovered last summer.
Cantu, who reportedly led the brutal attack
on the girls, was convicted last month and sentenced to die for his
part in the rape-murders. The case continued to get attention after
its conclusion when the judge allowed Ertman's emotional father to
shout his disdain for Cantu in front of rolling news cameras and
reporters.
The continued publicity resulted in repeated requests for
changes of venue, repeatedly denied for O'Brien and the others --
Medellin, 19, Raul Villareal, 18, and Efrain Perez, 18 -- facing
death in the case. A total of 212 potential jurors were interviewed
for O'Brien's trial in recent weeks, the majority of whom had heard
of the case, Williams said.
But despite defense contentions that an
unbiased jury could not be found, 12 jurors and an alternate was
impaneled and the case was set for opening arguments Monday.
Williams said the recent turn of events likely tainted the jury.
Clearly exasperated, Williams said: "I don't know where it leaves us."
3 gang members suspected in a third death
03/31/94
Search warrants were being sought Wednesday for blood and tissue
samples from three of the Houston teens charged in the rape-slayings
of two teen-age girls last summer after police received a tip the
trio may have been involved in another homicide. The samples will be
sought from Peter Anthony Cantu, Jose "Joe" Medellin and Derrick
Sean O'Brien for comparison with samples taken from the victim in
the unsolved case. Authorities declined to specify to which case the
three -- all 19 years old -- are suspected.
Cantu is on death row
after his conviction in February for his role in the June 1993 rape-slayings
of 16-year-old Elizabeth Pena and 14-year-old Jennifer Lee Ertman.
Pena and Ertman were killed June 24 when they took a shortcut to
Pena's house and stumbled into an initiation being conducted by the
Black and White Gang, a small group led by Cantu.
Pena and Ertman
were beaten and repeatedly raped for about an hour before the girls
were strangled with shoelaces and a belt. Cantu told police he stood
on the girls' throats to be sure they were dead. O'Brien and
Medellin both await trial on charges of capital murder. O'Brien's
trial is scheduled to begin Monday. Also awaiting trial is 19-year-old
Raul Villarreal.
Medellin's 15-year-old brother, Venancio "Vinnie"
Medellin, who testified against the others, is serving a 40-year
juvenile court sentence for his part in the rape-slayings. Sources
said police received a tip this week implicating Cantu, Medellin and
O'Brien in the rape and killing of a young female prior to the
Ertman-Pena deaths.
Authorities are planning to compare DNA in blood
and tissue samples from the three teens with a DNA "fingerprint"
already obtained from samples taken from the victim in that case.
Beyond that, sources familiar with the case declined to elaborate.
Attorney Connie B. Williams, who represents O'Brien, acknowledged
Wednesday that he knew his client, Cantu and Medellin are considered
suspects in another case. Williams said he was aware police planned
to get search warrants for the teens' blood and tissue samples, but
said he did not know any details of the case.
Other sources who
asked not to be named said the tip was being treated very seriously.
They declined to say why, other than pointing out that it was a
telephone tip that solved the Ertman-Pena case last year. That
telephone tip came from Joe Adam Cantu, Peter's 21-year-old brother
and a member of the same gang.
When making that call, Joe Adam Cantu
called himself Gonzalez and told police where to find the bodies of
the two girls, who had been missing four days. Police traced the
call to the Cantu apartment in the 1100 block of Ashland. The elder
Cantu eventually implicated his brother and the other gang members
and testified at his brother's trial.
The motive for that call
apparently was disgust, police said. Testimony in Peter Cantu's
trial indicated he and other gang members went to the Ashland
apartment after Ertman and Pena were killed and gloated about the
deaths in front of the elder Cantu and his young wife.
One source
told the Chronicle the caller who tipped police to the trio's
possible involvement in the previous case apparently waited to be
reasonably certain the three would not be freed soon out of fear of
retaliation. Another source familiar with the case said the search
warrants probably would be executed today.
O'Brien denied change of venue
03/09/94
A judge decided Tuesday that an unbiased jury could be found in
Houston to hear the capital murder case of the second youth to be
tried for last summer's rape-slayings of two teen-age girls. State
District Judge Bob Burdette joined attorneys in quizzing 55
potential jurors in the case against Derrick Sean O'Brien. Of those,
52 said they had seen or read reports of the case, but only 19 said
they formed an opinion. The bodies of Jennifer Ertman and Elizabeth
Pena were found June 24, about five days after they were accosted by
a gang of youths involved in a drunken initiation rite.
A jury last
month decided that Peter Anthony Cantu orchestrated the murders, and
sentenced him to death. O'Brien and three others will be tried as
accomplices. Lawyers for O'Brien were earlier denied a change of
venue, but made the request again after Cantu's trial ended in an
emotional courtroom outburst by Jennifer's father, Randy.
Jury selection to proceed in teen rape-killing case
02/23/94
Jury selection in the trial of a second teen-ager accused in the
capital rape-killings of two northwest Houston girls is to proceed
next week despite renewed efforts by defense attorneys to get a
change of venue. State District Judge Bob Burdette bypassed the
venue-change bid and ordered jury selection in the case of Derrick
Sean O'Brien to begin Wednesday.
If it turns out juror candidates'
views were shaped by news coverage of the Peter Anthony Cantu
capital trial this month, Burdette said, he could still opt to move
O'Brien's trial out of Harris County. "We'll see how we do,"
Burdette said. "I have no earthly idea what to predict."
Cantu and
O'Brien are among five 18-year-olds charged in the June 24 slayings
of Jennifer Ertman, 14, and Elizabeth Pena, 16. Ertman and Pena were
attacked as they took a short-cut across a railroad trestle and
walked into a drunken gang initiation rite. All five defendants
previously lost bids to have the cases tried outside Houston, but
their efforts were renewed Feb. 9 after jurors in state District
Judge Bill Harmon's court sentenced Cantu to die by injection.
Judge's sentencing expedites Cantu's transfer to death row
02/19/94
A judge cleared the way for Peter Anthony Cantu's immediate
transfer to death row on Friday when he ruled that the murderer
violated the probation he received for trying to stab another youth
when he directed the June 24 murders of two girls. The 19-year-old
gang leader, sentenced to death last week for the murders of
Jennifer Ertman, 14, and Elizabeth Pena, 16, could not have been
taken to the Huntsville prison as long as a case remained pending
against him.
At the time of the murders, Cantu was on probation for
a January 1993 incident at a monster truck show at the Astrodome
where he tried to stab another youth, apparently just for kicks. He
pleaded guilty and was sentenced to four years probation, the terms
of which included avoiding "injurious and vicious habits," adhering
to a curfew that began at midnight and ended at 5 a.m. and enrolling
in a program to pass a high school equivalency test.
By February, a
urine test taken by his parole officer revealed he had smoked
marijuana. He never signed up for the GED program. It was about 30
minutes before midnight when Pena and Ertman, taking a short cut to
get home, were seized by Cantu and his gang near some railroad
tracks at West 34th and T.C. Jester. After being raped repeatedly,
they were choked, strangled and finally stomped to death.
Cantu, who
had smirked and rolled his eyes through most of his trial, was more
polite Friday before Judge Woody Densen. Wearing an orange county-jail
jumpsuit and white high-top athletic shoes, he answered "yes sir"
and "no sir" to the judge's questions. Before Densen sentenced him
to 10 years in prison for violating probation, he asked Cantu if he
had anything to say.
Cantu replied, "Would it help?" The judge
indicated it would not. Prosecutor Don Smyth said sentencing Cantu
for probation violation means that if the capital-murder conviction
were to be overturned for any reason Cantu would have to remain in
prison. More importantly, he said, it expedites his transfer to
death row. "We cannot send him on to (prison) with a pending case,"
Smyth said. "It is not a wasted effort."
Judge deserves a thumbs up
By ANDY KAHAN
02/16/94
State District Judge Bill Harmon deserves kudos for having the
guts and foresight to grant a few moments of relief to surviving
family members of a homicide. (Harmon allowed Randy Ertman, whose
daughter was raped and murdered by Peter Cantu, to address the
condemned killer in court.) For over eight days we heard gruesome
testimony of the tortuous, slow, agonizing death Elizabeth Pena and
Jennifer Ertman underwent, not to mention being sexually violated
every which way known to mankind. Now all of a sudden we are shocked
and upset because a grieving parent was granted the opportunity for
some emotional healing.
Unbelievable. You are right when you state
in your Feb. 13 editorial, "Unjudicial," that crime victims cannot
vent their frustrations toward their perpetrators in a Texas court,
however several states do allow victims to address their
perpetrators in court after sentencing. Recently, Wisconsin allowed
surviving family members of serial killer Jeffery Dahmer to speak
their mind about how their lives were destroyed forever by Dahmer.
Ertman's statements were directed at Peter Anthony Cantu only, not
the other four defendants; therefore concern over the pending trials
is unjustified. If the presiding judges are worried about moving the
trials out of Harris County, then why make statements such as, "It
can't be anything but detrimental," when referring to the courtroom
scene. Such statements only add fuel to the fire.
Finally, perhaps
we should consider legalizing Judge Harmon's precedent-setting move
where it became obvious, at least in his courtroom, that the system
cared more about victims' rights than of those convicted of brutally
destroying our families. It is difficult to change the status quo
and Judge Harmon deserves a thumbs up for trying to change the
criminal-justice system to the "victim-justice system."
Wrong to slam judge
By AUDREY SCHAMBON
02/15/94
I am amazed and appalled at the editorial, "Unjudicial -- Judge
Harmon wrong in sanctioning confrontation," branding state District
Judge Bill Harmon "unjudicial" because he allowed Randy Ertman to
address in court that scum ball Peter Cantu, who was sentenced to
death for raping and murdering Ertman's daughter (Editorial page,
Feb. 13). Harmon is the most "judicial" judge we have in the
courtroom, and we will remember his critics, state District Judges
Bob Burdette, Miron Love and Doug Shaver, when we cast our votes.
Randy Ertman showed remarkable restraint in addressing the fiend.
Whose side are you on, Chronicle?
Judge made right call
By G. JAMES
02/14/94
Regarding the story, "Verdict on court drama divided," about
state District Judge Bill Harmon allowing Randy Ertman, whose
daughter was raped and murdered by Peter Cantu, to address the
condemned killer in court (Chronicle, Feb. 11): I can't believe the
idiocy of the people complaining about Harmon allowing Randy Ertman
to confront Cantu in the courtroom over the rape and murder of his
daughter. This punk not only freely admitted his guilt, but has
shown only contempt and disrespect for the court system and the
victims' families. I don't care how he was brought up or what he has
gone through in life, he knows that what he did was wrong, even
before he did it.
EDITORIAL: UNJUDICIAL
Judge Harmon wrong in sanctioning
confrontation
02/13/94
It is understandable that Randy Ertman would want to yell across
a crowded courtroom at Peter Cantu, the man sentenced to die for the
rape-murders of Ertman's daughter and another girl. What is not
understandable is that state District Judge Bill Harmon would
sanction such a scene. It was improper for Harmon to permit the
confrontation last week. Harmon is known for his unjudicial actions
and comments in the past, such as his remark in open court during a
capital murder trial some three years ago that he was "doing God's
work to see that the defendant is executed."
This newspaper
sympathizes with the natural emotions of Ertman in wanting to
confront the man convicted of murdering his daughter. But the scene
had no place in a courtroom. Such theater is damaging to the
judicial atmosphere and to the judicial system.
The Texas Code of
Criminal Procedures has been altered to allow families of crime
victims to tell judges about the effect on them of the crimes, and
what they think of the accused. But the revised code says nothing
about the right of family members to call defendants names in open
court. What impact, if any, this confrontation will play in Cantu's
appeal or what effect it may have on the trials of the four other
defendants in this case is unclear. Several judges were shocked by
Harmon's action and have expressed concerns about the pending trials.
Apparently, there will be a renewed effort to move one or more of
the trials out of Harris County. If granted, such moves could result
in delays and additional costs to taxpayers. Courts have no real way
of controlling possible outside influences in criminal cases, but
they do not need to add to such outside influences. Judge Harmon's
decision to permit this confrontation does not help.
Courtroom confrontation stirs bid to change venue
Murder defendants' attorneys fear adverse publicity from a
father's speech
02/12/94
Attorneys for two teen capital murder defendants said Friday that
the courtroom confrontation between convicted murderer Peter Anthony
Cantu and the father of one of his victims has rekindled efforts to
move their trials out of Houston. Four of six defendants in the
Jennifer Ertman-Elizabeth Pena murder case were denied changes of
venues to move their trials out of Houston after judges ruled that
all could get fair trials here.
Especially anxious is the attorney
for Derrick Sean O'Brien, 18, the next in the batch of defendants
facing the death penalty for his alleged role in the rape-slayings
of Ertman, 14, and Pena, 16. The girls were attacked as they were
taking a shortcut home to make curfew and stumbled into a drunken
gang initiation rite June 24.
Minutes after the jury delivered the
death sentence to gang leader Cantu on Wednesday, Judge Bill Harmon
allowed Randy Ertman, father of one of the dead girls, to make
personal remarks to the killer of his only child. Although the
courtroom address was perfectly legal -- and emotionally healing for
Ertman -- it has caused some fallout around the courthouse.
O'Brien's attorney, Steven Greenlee, who already has had one change
of venue request rejected by state District Judge Doug Shaver, said
Ertman's speech could be considered adverse publicity for his client,
therefore compelling him to take another shot at moving the trial.
As for his chances of getting a venue change, "I think they have
improved."
Friday, Ertman defended his admittedly emotional display
at the end of Cantu's trial and apologized for using a swear word,
but said he was grateful to the judge for the opportunity to release
some the feelings he was told not to show during the proceedings. "It
made me feel excellent," said Ertman during a news conference Friday.
He said having the opportunity to publicly speak to Cantu helped the
grieving father in his healing process. He said all crime victims
should have the opportunity to address defendants in court. But
Ertman did take issue with how a Houston Chronicle article published
Friday described his comments to Cantu. Ertman said he only uttered
one swear word at the defendant and then apologized to the audience
for making it.
Defendant Raul Omar Villarreal's attorney, Ricardo
Rodriguez, also previously denied a change of venue for his client,
agreed with Greenlee that his chances for getting the trial moved
have improved. "We intend to do the same thing (request moving the
trial), more than likely," he said. "Of course we are not at all
pleased with the way that Judge Harmon handled the situation,"
Rodriguez said, but the result has given him "a stronger reason to
re-urge" the move.
Two cases of two dead girls
02/11/94
It made for great theater -- a crime victim's grieving father
screaming obscenities across a crowded courtroom at the belligerent
young man sentenced to die for the rape and murder of his teen-age
daughter. Randy Ertman's outburst at condemned killer Peter Anthony
Cantu, sanctioned if not encouraged Wednesday by state District
Judge Bill Harmon, infuriated defense lawyers, horrified some Harris
County judges and pleased victims' rights advocates.
Not only were
senior administrative district Judges Miron Love and Doug Shaver
unhappy that Harmon set up a confrontation where Ertman was able to
shout profanities at the defendant, they also were not overjoyed
that the judge had allowed a small herd of newspaper and television
photographers to gather in front of the courtroom to capture the
scene on film. "I'm shocked," Love lamented. "That shouldn't have
happened. It may not be reversible, but it doesn't show proper
procedures. It wouldn't happen in my court or any court I know of."
Harmon was attending a friend's funeral in San Antonio and was
unavailable for comment. Marinell Timmons of the county's Victims
Assistance Center initially said she liked the idea of victims being
able to have their say in court but added that judges should set
boundaries about what can and cannot be said.
But after thinking
about it for a moment, she added: "We're telling the man (Ertman) in
court all those horrible things that happened to his daughter, and
then we're backing up and being shocked by his language. "I guess
it's not even proper to tell him to use proper language. Anybody
would be angry in those circumstances." Timmons added that it made
her feel much better when she was able to tell off the man who
killed her son in a drunken-driving manslaughter case.
Shaver
earlier turned down motions to move the trials for four of Cantu's
co-defendants out of the county, and now he's worried that he may
have to conduct another hearing because of the massive burst of
publicity evoked by the dramatic conclusion to the Cantu trial. When
co-defendant Raul Villarreal, 19, goes on trial in Shaver's court
for the June 24 gang rape and strangulation killings of Jennifer
Ertman, 14, and Elizabeth Pena, 16, Shaver said he'll allow no
repeat of the finale Harmon sanctioned.
State District Judge Bob
Burdette clearly was not happy to have such a widely publicized
emotional display just before he starts jury selection on the
capital murder case of Cantu co-defendant Derrick Sean O'Brien, 19,
on Feb. 28. "If it has an effect at all," Burdette said, "it can't
be anything but detrimental." Defense attorney Jim Skelton accused
Harmon of "exploiting an unspeakable tragedy" for his own gain via
media coverage.
Defense attorney Mary Conn groused that existing
public dissatisfaction with the American justice process can only be
amplified by such displays. "That was the biggest circus I've ever
seen," trial lawyer Stan Schneider said. "It should never have been
allowed. There's no reason for it." Word spread among the 90 or more
people watching Ertman yell at Cantu that the Legislature recently
altered the Texas Code of Criminal Procedure to allow the families
of crime victims to address convicted defendants. Not so, state
District Judge Ted Poe said.
A reading of Chapter 56 in the code
lists numerous ways crime victim's can tell courts -- meaning judges,
not defendants personally -- about the impact of crimes on them and
what they think about the accused. But the code says nothing about
giving unhappy fathers the right to call defendants names in open
court. Poe does favor altering court procedures to give victims more
say about the crimes and their impact. "Victims were victimized by
the system for years," Poe said. "They were kept out of the
courtroom, but now they have the right to be informed and know about
their cases."
Murders expose our vulnerability
Cantu becomes symbol of social
ills
02/11/94
It was a typical Monday morning, complete with the usual news
reports of weekend mayhem in Houston: An unidentified man found shot
and dumped in a ditch. Another fellow discovered murdered and left
in a grassy field. As the day wore on, however, word began to spread
of a crime that seemed shocking even by Houston standards. A pair of
teen-age girls, missing for several days, had been located in woods
near White Oak Bayou. They were dead, but that simple fact did not
hint at the horror that had befallen them.
By the next morning --
June 29, 1993 -- their names were on the lips of thousands of people
who had never met them. With speed that can only attend the truly
awful, Jennifer Ertman and Elizabeth Pena became symbols of
collapsed values, of unthinkable barbarity among our young and,
ultimately, of our complete vulnerability to violent criminals. With
the quick arrest of the six teen-age gang members accused of raping
and strangling them, the cry for vengeance was swift and loud.
That
cry was answered, in part, by the death sentence imposed Wednesday
on Peter Anthony Cantu, 19, leader of the gang. "They were so young,
and the way they were murdered -- it was like the "Texas Chainsaw
Massacre" in reality," said Andy Kahan, Houston Mayor Bob Lanier's
director for victims' rights. "It was a slow torturous death. They
had to undergo that treatment for more than an hour and were left to
rot." Ertman and Pena died because they took an ill-advised short
cut to beat a midnight curfew.
Nan Gurski, a past president of the
local chapter of Parents of Murdered Children, wonders what hope
there is if children have to pay the ultimate penalty for such a
little mistake. "What does any parent have to give his child to
protect them when somebody else makes a conscious decision (to hurt
them)?" she said.
Coincidentally, the death sentence against Cantu
in this case was imposed on the same evening Rex Mays confessed to
another incident that captured our attention the year before, the
vicious slayings of two young girls in northwest Harris County.
The
murders of 7-year-old Kynara Carreiro and 10-year-old Kristin Wiley
in their northwest Harris County neighborhood were the talk of
Houston in the summer of 1992, much as the Pena-Ertman killings were
a year later. Kynara's father, Bob Carreiro, befriended Ertman's
father and sat through much of Cantu's trial.
While the cases were
similar in some obvious ways, they also had some important
differences. David Klinger, a sociologist at the University of
Houston who specializes in crime, has no trouble ticking off the
reasons why the Ertman-Pena case touched all of Houston.
It was a
multiple murder with a sexual angle. It involved innocents set upon
by palpable evil. And it heightened a contemporary fear -- youth
gangs -- by turning them into wolf packs eager to attack given the
slightest opportunity, and against whom there is little defense. The
Carreiro-Wiley case also heightened fear.
The fact that the killings
went unsolved for so long raised the specter of a child-killer on
the loose in the community. Added to that was the fact that the
girls were slain in Wiley's home. "So you've got a situation where
the home is not even safe," Klinger said. No neighborhood was more
affected than the near North Side area where Jennifer Ertman and
Elizabeth Pena lived and died.
The Rev. Thomas Wendland, a priest of
St. Rose of Lima Catholic Church, where Pena worshipped, has watched
fear and paranoia grow among his parishioners. He spoke of their
desire for higher fences to keep evil out, of a growing "siege
mentality."
Worse, he fears that Cantu and his group may not be
sociopathic freaks, but rather a shocking indication that moral
training has left too many households. "It says probably that most
of the parents are so deeply committed to trying to provide what
they consider the necessities that they missed the boat," Wendland
said. "They missed the point of what is a necessity."
Cantu gets death Killer scoffs at father of a victim
02/10/94
Peter Anthony Cantu was sentenced Thursday night to die by
injection for the rape-murders of two teen-age girls, then responded
"nah" when asked if there was any reason the sentence should not be
pronounced. Hands in his pockets, the 19-year-old killer of Jennifer
Ertman, 14, and Elizabeth Pena, 16, then sat down, and state
District Judge Bill Harmon ordered, "Please rise, Mr. Cantu."
Looking into the audience, Harmon took the unprecedented step of
allowing Ertman's father, Randy Ertman, to address the defendant.
But as Ertman began to speak, Cantu seemed to scoff and look away. "You
look at me!" Ertman yelled. "I've got cats that kill animals. When
they kill something, they eat it. You don't even eat it. You're not
even an animal. You're the worst thing I've ever seen." Again Cantu
looked away, scratching nervously at his face. "Look at me!" Ertman
roared. "Look at me good!"
The dramatic conclusion was captured by
eight newspaper and television photographers permitted in front of
the courtroom rail to capture the end of the two-week capital murder
trial. Their focus shifted from Cantu being handcuffed and led away
under heavy guard to the victims' relatives crying in the audience.
The jury deliberated four hours before deciding the sentence for
Cantu, the first of five members of the Black and White gang to be
tried in the killings. The only other option was life in prison.
Jury selection is to start Feb. 28 in the capital trial of
codefendant Derrick Sean O'Brien, 19. The killings occurred June 24,
a day Cantu reported to his probation officer.
He was on four years'
probation for bulling his way through an Astrodome crowd last March,
deliberately bumping into people and trying to pick fights,
ultimately cutting a teen-ager's shirt with a butterfly knife. On
the fatal June day, witnesses said, Cantu spent hours drinking beer
with friends and fellow gang members. After sundown, his focus was
on Raul Omar Villarreal, 19, who wanted so badly to be a Black and
White member that he offered to fight everybody to gain admittance.
The group moved to a railroad trestle off T.C. Jester for
Villarreal's initiation rites. The teen fared well against his first
three rivals, but the fourth one knocked him out cold. But
Villarreal's performance was enough to win him a membership, and the
group went to the center of the trestle to drink beer and
congratulate him. They were giving him tips on gang etiquette when
they noticed two figures approaching in the darkness.
Frustrated the
fighting ended before he could battle Villarreal, Cantu decided to
take it out on the larger figure, thinking it was a male. The
figures turned out to be Ertman and Pena, Waltrip High School
sophomores taking a shortcut home to make their families' curfews.
Two teens with the group, Roman and Frank Sandoval, already were
leaving, since they had wearied of the gang's drunken antics and
felt something bad was about to happen.
Roman Sandoval said he
glanced back to see gang member Jose "Joe" Medellin, 19, drag Pena
off the railroad tracks. She screamed for help, and Ertman rushed
back to help, only to be grabbed by Cantu.
The girls were then gang-raped
by five teens, who molested each girl in pairs. Venancio "Vinny"
Medellin, 15, who was on his first social outing with his older
brother, Jose, said he kept asking Cantu to stop, only to be told, "get
some." Finally, Venancio Medellin said he had intercourse with
Ertman.
That earned him a 40-year sentence in juvenile courts for
felony rape. When he was finished, Medellin testified, Cantu
whispered to him: "We're going to have to kill them." Pena was led
into a stand of towering pines and strangled with shoelaces by Jose
Medellin and Efrain "Junior" Perez, 19, witnesses said.
Nearby,
according to testimony, Ertman was strangled with a red belt by
O'Brien and Villarreal. Cantu's confession said he kicked out three
of Pena's front teeth with his steel-toed work boots. Prosecutor
Donna Goode theorized the same boots were used to break Ertman's
ribs.
Then, Cantu said, he stood atop each girl's throat to ensure
they were dead. Afterward, Jose Medellin, Villarreal and Perez went
to the Cantu home and boasted to gang member Joe Adam Cantu, 21, and
his wife, Christina, 16, they had had "a lot of fun" with "a couple
of chicks."
After Peter Cantu got there, he admitted to his brother
and sister-in-law that the "chicks" were dead. Jose Medellin,
witnesses said, joked he had "virgin's blood" in his underpants. He
also lamented it had been so hard to kill the girls, saying a gun
would have been much faster.
Four days later, pretending to be "Gonzalez,"
Joe Cantu called 911 to tell police where the bodies were. The call
was traced to the Cantu home, and Joe Cantu directed officers to the
homes of all the gang members except Villarreal.
All five defendants
confessed and were soon charged with capital murder. In court,
defense lawyers Donald Davis and Robert Morrow tried to portray
Cantu as a pitiable teen with learning disabilities and parents who
could not hope to cope with all the troubles their son caused.
Gang leader Cantu sentenced to death
Convicted in rape-murder of two teens, killer smirks
02/10/94
Peter Anthony Cantu drew the death penalty Wednesday for the June
1993 rape and murder of two teen-age girls who stumbled onto a gang-initiation
rite. The sentence ended an eight-day trial into charges that Cantu
led members of his Black and White gang in the rape and murder of
Elizabeth Pena, 16, and Jennifer Ertman, 14.
Cantu, 19, thrust his
hands in his pocket and smirked at state District Judge Bill Harmon
when the judge read the sentence returned by a jury that deliberated
a little over four hours. Ertman's father, Randy Ertman, jumped to
his feet and began screaming at Cantu, calling him names before he
was led away by sheriff's deputies. "Look at me," Ertman screamed at
Cantu. "My cat kills something to eat it. You don't even eat it.
You're not even an animal. You're the worst thing I've ever seen."
Cantu's death sentence came on the heels of testimony from dozens of
witnesses who depicted him as a bull-headed, argumentative youth who
was prone to yelling obscenities at people he passed, became
violently angry at anyone who aggravated him and bullied anyone who
seemed weak.
The girls, who stumbled onto the gang initiation while
taking a shortcut near White Oak Bayou in northwest Houston, were
raped for an hour before being strangled with shoelaces, a belt and
stomps to the throat. Cantu ordered the girls killed so they would
not identify their attackers, testimony showed. Yet he and other
defendants returned from the scene and gloated to family members
what they had done, witnesses said.
During the trial, prosecutors
introduced a statement from Cantu in which he admitted ripping a
gold chain from Ertman's neck as she was being forced to perform sex
acts.
Cantu's confession said the girls later were led into a wooded
area, where Joe Medellin began strangling Pena with his hands while
Raul Villarreal and Derrick Sean O'Brien used a belt and shoelaces
to strangle the girls. O'Brien, Medellin, Villarreal and Efrain
Perez are awaiting prosecution for capital murder.
For four days
after the attacks on Ertman and Pena, their bodies remained in the
woods. Police were led to the scene by a telephone tip from Cantu's
brother, Joe, 21, who testified during the trial that he was unhappy
to hear his fellow Black and White members boasting about having "a
lot of fun" with the two girls.
Slain girls' kin describe fear, anguish
02/09/94
The parents of two slain girls spent days putting up thousands of
fliers containing pictures of their missing daughters, pleading for
help on television and combing entire neighborhoods, they told
jurors Tuesday. But no sooner had they heard June 28 that the bodies
of two females had been found near a railroad trestle, they knew
that their children -- Elizabeth Pena, 16, and Jennifer Ertman, 14
-- were dead. Melissa Pena said she drove 90 mph down Loop 610 after
receiving the simple message to "come home."
Randy Ertman said he
literally hijacked a TV news crew and made them drive him to the
trestle off T.C. Jester. The girls, missing since June 24, lay
decomposing in a stand of towering pines, not far from where they
had been gang raped before being strangled -- only yards from the
tracks they had used as a shortcut to get home and meet their family
curfews. Upon reaching the spot where their bodies lay, Ertman
admitted to the jury that he went out of control, storming around
the area screaming while police fought to keep him back.
Ertman
testified Tuesday in the punishment phase of gang leader Peter
Cantu's trial where jurors will decide if the convicted capital
murderer gets life in prison or death. "I about lost it. I guess I'm
glad the police stopped me," Ertman testified. "I was in a rage."
As
Pena and Ertman related their feelings to the jury, Cantu stared
down at some pages before him, not making eye contact with the
parents as they spoke. It was much the same demeanor he maintained
last week while other participants and Black and White gang members
were describing the rapes and how Cantu decided to kill the girls
and eliminate witnesses.
Neither Ertman nor Pena looked into the
face of the man convicted of killing their daughters. Prosecutors
rested their capital murder case against Cantu, 19, after Ertman's
testimony. Final arguments will be late today or Thursday morning.
As their parents described it, the girls, both sophomores at Waltrip
High School, went out to see friends on the evening of June 23.
Ertman was expected to come home by midnight; Pena was expected home
before 11:30 p.m. Since they were reliable about not missing their
curfews, and since both were wearing electronic pagers so their
parents could reach them easily, neither family was immediately
concerned that the girls were late.
Ertman said he thought his
daughter had stayed overnight with a friend and he went to sleep.
Adolph and Melissa Pena also went to sleep. But by the next morning,
both families were frantically calling the girls' pagers. They began
ringing the phones of the girls' friends. Searches were organized.
Missing-persons reports were filed with the police.
Assisted by 28
friends, Pena and Ertman distributed flyers. They went up from
Cleveland to Galveston, taped to phone booths, stuck on utility
poles with staple guns, tucked under windshield wipers. "We put
fliers all over the city of Houston," Melissa Pena said. "We put out
at least 3,000 in three days."
Prosecutor Donna Goode asked both
parents about the impact on their families of having their children
brutally murdered. "There's no birthdays, no Christmases, but most
of all there's no children. She was my baby," Ertman said at one
point. "That's the only one we'll ever have. My wife's 50 years old."
State District Judge Bill Harmon allowed jurors to hear the
testimony despite the protests of defense attorney Robert Morrow,
who said the emotional displays were irrelevant to the choice the
jury has to make. Cantu's other lawyer, Donald Davis, said numerous
appeals courts have frowned on prosecutors encouraging such
testimony, but he doubts Harmon's decision will be enough to cause a
reversal of his client's conviction.
Witnesses portray increasingly violent Cantu
"I think I'd like to
kill somebody just to see what it felt like'
02/08/94
About a month before he led the rape-killings of two Houston
girls, Peter Anthony Cantu dropped in at the Harper Alternative
School and had a chat with his former auto mechanics teacher,
testimony showed Monday. "You know, Malveaux, I think I'd like to
kill somebody just to see what it felt like," Cantu said, Joseph
Malveaux Jr. told jurors at the 19-year-old's capital murder trial.
Malveaux said he quickly pointed out to the gang leader that he was
headed for trouble if he did anything of the kind. "I don't give a (expletive),"
Cantu remarked.
His testimony about the May 1993 remark was only a
fragment of the information related by numerous state witnesses, who
described the steadily increasing level of violence by Cantu. Jurors
in state District Judge Bill Harmon's court now must decide whether
to send him to death row or impose a life term that cannot end in
parole before the year 2028.
Cantu was convicted last week in the
June 24 murders of Jennifer Ertman, 14, and Elizabeth Pena, 16, who
were gang raped for an hour before they were strangled.
The girls
took a shortcut home near a railroad trestle over White Oak Bayou in
northwest Houston and walked into a Cantu-led gang initiation.
Other
state witnesses included Harper Alternative School principal Paul
Hanser and Dalton Hughes Jr., a former Houston school security
officer, who said Cantu became so enraged at them about separate
incidents in 1989 and 1990 that he threatened to kill them.
Worthing
High School student Mario Harkness, 18, told how Cantu deliberately
bumped into him on Jan. 9, 1993, at the Astrodome. Then, he said,
Cantu tried to pick a fight, pulled a knife and cut the teen's shirt.
That got Cantu placed on a four-year probation for assault.
Police
Sgt. Paul Stavinoha told of stopping a car driven by Cantu on July
18, 1992, on 28th Street and finding a .38-caliber revolver under a
seat.
Charges of unlawfully carrying a weapon were filed against
Cantu's passenger, Jose "Joe" Medellin, awaiting trial for capital
murder in the double rape-slayings.
Policeman James Godfrey
testified he stopped a stolen car driven by Cantu on Antoine on Dec.
7, 1991. That got Cantu placed on probation in Harris County's
juvenile courts.
The overall testimony of several teachers,
principals, school bus drivers and security guards depicted Cantu as
a bull-headed, argumentative youth who was prone to yell obscenities
at people he passed, became violently angry at anyone who aggravated
him and bullied anyone who seemed weak. Many witnesses said that
whenever they tried talking to Cantu's mother, Suzie Cantu, it was a
waste of time.
Cantu's mother barely seemed to listen, brushed them
off by saying "I'll take care of it," or else contended whatever had
happened was not her son's fault but that of someone who "provoked"
him.
Cantu described as bully as sentencing begins
02/05/94
Peter Anthony Cantu, convicted in the rape and murder of two teen-age
girls, was portrayed Friday as an undisciplined bully with a
defensive, overprotective mother.
Nine state witnesses, testifying
in the sentencing phase of Cantu's capital murder trial, told jurors
that he stole a bicycle, stalked a fifth-grade girl, assaulted a
middle school teacher and was basically uncontrollable from age 11
to 13.
They were the first of what could become a parade of
witnesses called by the prosecution in an effort to get the death
penalty for Cantu, 19. The day's testimony ended at noon when state
District Judge Bill Harmon left because of what court personnel
described as a "personal emergency."
The trial is to resume at 10
a.m. Monday. The jury found Cantu guilty Thursday in the June 24,
1993, rape-killings of Elizabeth Pena, 16, and Jennifer Ertman, 14.
Cantu's Black and White gang raped the girls for an hour, then
strangled them with shoelaces and a belt and finally stomped on
their throats.
Prosecutor Don Smyth's first witness was Darrin
McElroy, who described how he was knocked off his bicycle in 1986,
by a youth who then gave it to Cantu.
The bicycle was returned the
same day by Cantu to claim a $10 reward, then was stolen again two
days later. Amber Law testified Cantu tried to kiss her when she was
a fifth-grader.
She said she escaped then, but on July 27, 1988, he
came to her house and spent 10 minutes circling it, yelling: "Let me
in. I know you're in there."
She called her father, Sherman Law, who
went to Cantu's apartment and informed his mother, Suzie Cantu, that
her son had broken a window in his efforts to get to Amber Law. "She
seemed like she didn't believe he'd been over there," Sherman Law
testified. And when he spoke to Cantu, he was told: "(Expletive) you.
I can do whatever I want."
His visit to the Cantu apartment at 3405
N. Shepherd was followed up by Houston police juvenile Officer J.W.
Kirtley, who warned 13-year-old Cantu that such antics could "come
back to haunt him."
Houston schoolteacher Diane Caudill, saying she
is still "terrified" of Cantu, described an episode at Hamilton
Middle School in January 1988, on his second day as her student.
Just as class was about to start, she said, she noticed Cantu and
another student standing nose to nose, inches apart, in a sort of "face-off"
in the classroom's doorway.
When she touched his collar to end the
confrontation, she said, he put his hands on her chest and shoved
her the length of her classroom, saying: "Leave me alone, old lady."
Then, she said, he grabbed her hands and pushed her out of the
classroom and down a hallway. It ended with social studies teacher
Stephen Seale grabbing Cantu from behind, causing both of them to
fall to the floor. "I've never had that happen before or since,"
Caudill testified. "We had fights every day, but never an attack on
a teacher in a classroom." Cantu was expelled, only to be allowed
back in the same school the next month.
Seale's daughter, Alicia
Seale, 16, said she was at a concession stand during a football game
Nov. 17, 1988, when Cantu and his friends were behind her in a line
and began making threats. He said he hated my father and wanted to
kill him," Alicia Seale told jurors.
Jury convicts gang leader in murder of two girls
02/04/94
Gang leader Peter Anthony Cantu was convicted Thursday of the
capital murders of two teen-age girls who were raped for an hour
before being strangled with shoelaces, a belt and stomps to the
throat.
Cantu ordered the girls killed so they would not identify
their attackers, testimony showed, yet he and other defendants
returned from the scene and gloated to family members what they had
done.
Jurors took just over an hour to convict Cantu in state
District Judge Bill Harmon's courtroom, packed with at least 250
people. About 100 were Waltrip High School students, many of them
friends and acquaintances of the victims, who had left class to
watch.
While the families of the victims, Elizabeth Pena, 16, and
Jennifer Ertman, 14, wept happily and embraced after the verdict,
Cantu, 19, seemed to sigh and then smile faintly in resignation.
The
jury must sentence him to death or a life prison term that can't end
in parole until he's served 35 years. Harmon estimated the trial
should end by Tuesday.
Prosecutors Don Smyth and Donna Goode have
subpoenaed 42 witnesses who likely will describe every misdeed ever
blamed on the defendant.
Defense lawyers Robert Morrow and Donald
Davis said they will call some witnesses, but they would not detail
their plans.
The prosecution's last exhibit was Cantu's final
confession, in which he admitted almost every detail that state
witnesses Venancio "Vinnie" Medellin and brothers Roman and Frank
Sandoval had related earlier this week.
Cantu told a police
detective, Roy Swainson, how he had taken his Black and White gang
to a railroad trestle over White Oak Bayou in northwest Houston on
June 24 to drink beer and initiate a new member.
The latter, Raul
Villarreal, 19, was to fight four gang members, but he was knocked
out before Cantu had his turn.
That frustrated Cantu, and when two
figures were spotted approaching in the darkness, he decided to take
it out on the larger one, who appeared to be a male. It turned out
to be Pena and Ertman, taking a shortcut home from a party to save
15 minutes and avoid a parental scolding.
Almost immediately, gang
member Jose "Joe" Medellin, 19, grabbed Pena and dragged her away.
Cantu grabbed Ertman, who had run back to help her screaming friend.
In his confession, Cantu said he ripped a gold chain from Ertman's
neck as she was being forced to perform sex acts. "We were taking
turns having sex with them," the confession said, suggesting that
pairs of gang members were moving from victim to victim like "a pack
of dogs feeding on their prey," as Goode described it.
As that was
ending, Venancio Medellin, 15, testified, Cantu whispered that they
would have to kill the girls.
Venancio Medellin, younger brother of
defendant Jose Medellin, said he stood in shock between the victims
during the rapes as Cantu kept urging him to "get some."
Cantu's
confession said the girls were led into a wooded area, where Joe
Medellin began strangling Pena with his hands while Villarreal and
defendant Derrick Sean O'Brien, 19, used a red belt to strangle
Ertman. "Efrain (Perez, another defendant) started to help Joe
strangle the brunette (Pena)," the confession continued. "That's
when I kicked her once in the face. When she dropped to her back, we
checked for a pulse."
In closing arguments, Goode pointed to the
black, steel-toed work boots Cantu had used to knock out three of
Pena's teeth.
Despite all their efforts, Ertman's heart was still
beating. So, Cantu confessed, he stood on her throat with his left
foot, and then O'Brien did the same. "We did this to make sure they
were dead," Cantu said. "We didn't want to be identified."
Goode
suggested that Cantu's boots were used to break three of Ertman's
ribs after she was dead. The girls' decomposing bodies remained in
the woods for four days.
Then Cantu's brother, Joe, 21, unhappy to
hear his fellow Black and White members boasting about having "a lot
of fun" with two murder victims, called police and gave the location
of the bodies.
Joe Cantu said his name was "Gonzalez," but police
traced his 911 call to the Cantu family home in northwest Houston,
and he soon identified the culprits.
Venancio Medellin is serving a
40-year juvenile court sentence. Jose Medellin, O'Brien, Perez and
Villarreal await prosecution on capital murder charges.
Jury sees photos of decaying bodies
Families of slain girls hear testimony in Cantu murder trial
02/03/94
Jurors at the Peter Cantu capital murder trial spent hours
Wednesday listening to keenly detailed descriptions of the bodies of
two girls who were gang raped, strangled and their bodies left
abandoned for four days in 100-degree weather.
While the families of
Elizabeth Pena, 16, and Jennifer Ertman, 14, sat watching in the
audience, the jury was shown a series of photographs of the
decomposed bodies in a patch of trees near White Oak Bayou.
Harris
County Assistant Medical Examiner Marilyn Murr said decomposition
had reduced the bodies, particularly Pena's, to such a state that
she could only say they died of strangulation. She could not specify
the precise method used to kill the girls.
Nor could efforts by Murr
and Houston police technicians establish that they were raped, even
though one of Cantu's five co-defendants described how the teens
were subjected to an hour-long mass rape at the hands of the Black
and White youth gang.
It was established, though, that Pena's front
teeth were knocked out while she was still alive, and that three of
Ertman's ribs were broken after she died. Prosecutor Donna Goode
theorized the blows were struck with Cantu's steel-toed work boots.
As he has all week, Cantu, 19, scribbled, read documents and
whispered to defense attorney Donald Davis throughout the grueling
testimony, seldom looking up or appearing anything but placid. He
faces a possible death penalty if convicted of capital murder in the
June 24 slayings, which occurred after the girls took a shortcut
down a stretch of railroad tracks and walked into a gang initiation
late that night.
Cantu was leader of the gang and, prosecutors said,
directed the killings after Pena and Ertman had been raped. The
teens were strangled with a belt and shoelaces, and then had their
throats stomped, witnesses said.
State District Judge Bill Harmon
hopes attorneys can argue Cantu's guilt or innocence of the charges
Thursday after police witnesses describe his confession to jurors.
Stranglings solved after brother's tip
Disgusted by gang, he
revealed location
02/02/94
An older brother's long-simmering resentment of his cocky younger
brother helped police solve the rape-murders of two Houston teen-age
girls, according to testimony Tuesday at Peter Cantu's capital
murder trial.
Joe Adam Cantu, the accused killer's 21-year-old
brother, told jurors he was so disgusted to learn that Peter Cantu
had directed the Black and White gang in strangling the teens after
a mass rape June 24 that he telephoned police.
Pretending to be
someone named "Gonzalez," he dialed the police 911 emergency number
and informed authorities exactly where to find the bodies of
Elizabeth Pena, 16, and Jennifer Lee Ertman, 14.
The call not only
helped police locate the girls' decomposing remains near the
railroad trestle over White Oak Bayou on June 28, but the call
eventually led to the arrest of gang members who were charged with
raping and killing the girls.
Police traced the call to Joe Cantu,
who helped officers find Derrick Sean O'Brien, Jose "Joe" Medellin,
Venancio "Vinny" Medellin and Efrain "Junior" Perez, who were later
charged along with Peter Cantu.
The only person allegedly involved
who Joe Cantu did not identify for police was Raul Villarreal, who
had become a full-fledged gang member only minutes before the
killings. O'Brien, Jose Medellin, Perez and Villarreal, all 19, are
awaiting prosecution for capital murder.
While Joe Cantu was
testifying Tuesday, his brother Peter Cantu never looked directly at
him, only glancing toward him when he was asked to identify small
pieces of evidence.
Instead, Peter Cantu appeared to be reading
documents and whispering to his lawyer, Donald Davis, as Joe Cantu
spent more than an hour telling jurors in state District Judge Bill
Harmon's court about the Black and White gang and his brother.
As Joe Cantu explained, the gang was formed six years ago and was named
after the black and white clothing worn by its members.
The gang was
a small group of friends, according to Joe Cantu, who made it sound
like a social group that disdained serious crime. All that changed,
he told jurors, when Peter Cantu became the gang's "self-appointed"
leader.
Other gang members soon began following Peter Cantu's
directions, his brother said, and that tended to reinforce the
younger brother's control.
Although Joe Cantu never said he had been
leader of the gang, he described how his relationship with Peter
Cantu had become "poor" by June 1993.
By then, Joe Cantu said, he "only
now and then" accompanied the Black and White gang on outings. Yet
the gang continued to use the Cantu family home as its social center,
Joe Cantu said, and it was there that Jose Medellin, Villarreal and
Perez went after the Ertman-Pena killings. When Joe Cantu asked what
happened, he recalled someone responding: "You'll hear about it on
the news."
Cantu said he asked who got killed and Jose Medellin
answered: "A couple of chicks." Cantu testified that he and his wife,
Christina Cantu, 16, pressed Medellin, Villarreal and Perez for
details, at which point Villarreal and Perez admitted raping the
girls.
When Peter Cantu came in later, the older brother testified,
he watched as the group divided up the rings, chains and a small
amount of cash taken from the girls. Joe Cantu admitted that his
brother gave him a chain, which he subsequently pawned.
Once the
girls' belonging were split up, Joe Cantu testified, the group began
explaining what they had done, with Peter Cantu acknowledging that
it was all true. Medellin, the older brother said, complained about
the trouble they had killing one of the girls.
Joe Cantu recalled
Medellin observing: "It would've been easier with a gun." One of the
girls had bitten Perez during the rapes, Joe Cantu said, and the
gang members "all got a big laugh out of that."
Their laughing,
joking, blood-stained clothes and descriptions were so cold and
vivid, Joe Cantu told jurors, that Christina Cantu had nightmares
afterward. "I couldn't stand to see my wife that way," he said.
Joe
Cantu said he was so disgusted by what his brother and the gang had
done, and knew the victims' parents had to be worried about their
missing daughters, that he decided to call police.
Girls' hour of terror before death detailed 15-year-old tells how
gang initiation led to slayings
02/01/94
To get home 15 minutes faster and avoid a scolding, two teen-age
girls took a shortcut June 24 and blundered into a gang of drunken
youths who raped them for an hour before strangling them, testimony
showed Monday.
The deaths of Jennifer Lee Ertman, 14, and Elizabeth
Pena, 16, were described in sad, sterile terms by Venancio Medellin,
now 15, a key state witness in the capital murder trial of Peter
Anthony Cantu.
Now serving a 40-year sentence received in a juvenile
court, the teen repeatedly marveled aloud at the life-wrecking mess
he got into because he went out socially with his brother, Jose "Joe"
Medellin, 19, one of five Black and White gang members accused of
the killings.
The witness said he stood between the two girls as
they were being raped "every way you can assault a human being," as
a prosecutor phrased it. The teen-ager said he kept thinking, "Why
did this have to happen to me the first time?"
Venancio Medellin and
brothers Roman and Frank Sandoval, who left just as the girls were
being dragged away, said they were among seven teens who accompanied
Cantu to "the tracks" late at night to drink beer.
But after
reaching the site, a railroad trestle in northwest Houston over
White Oak Bayou, they discovered that Cantu's main objective was to
initiate a new Black and White member, Raul Omar Villarreal, 19.
To
gain admittance, Villarreal had to spend a half-hour having five-minute
punching and kicking fights with gang members to prove, in effect,
he was worthy of membership.
The youths then went to the middle of
the trestle to sip malt liquor, congratulate Villarreal and brief
him on gang etiquette, such as not getting too upset if another
member jokes about having sex with one's mother. The girls then
began approaching on the tracks, two indistinct forms on a dark
night.
The gang first thought they were a male and a female, and
Cantu, 19, decided immediately he wanted to fight the male. Frank
Sandoval was already leaving with his brother, largely because he
thought the members were "all hyper and drunk, getting out of
control."
As they left, the Sandovals passed two young girls, and
Roman glanced back. "Joe Medellin grabbed one of the girls, the tall
girl (Pena)," Sandoval told jurors. "She was screaming to Jennifer.
She was saying, "Help me, Jennifer.' "
Ertman was past the gang and
could have run to safety, testimony suggested, but she hurried back
to help her friend. Venancio Medellin said he saw Cantu grab
Ertman's wrist and drag her down the railroad embankment toward the
dirt area where Villarreal had just finished fighting for his
membership.
Moments later, the witness continued, Cantu made Ertman
undergo the first in a long series of sex acts, while Pena had been
stripped nearby and was being assaulted by two gang members in turn.
Venancio Medellin said he stood between the crying girls. He asked
his brother to stop, only to be ignored, then made the same request
of Cantu. Every time, he said, Cantu told him: "Get some." The boy
said he had felt that Jose Medellin and Cantu were the only ones who
might listen to him.
The third time he pleaded with Cantu, Venancio
Medellin admitted, he yielded to the defendant's demands and had
intercourse with Ertman. That landed him in sex offender therapy at
the Texas Youth Commission's maximum-security facility at Giddings.
The teen said he watched as the four youths who had raped Pena began
molesting Ertman, and that Cantu then spoke with him privately. "He
talked low to me," Medellin testified. "He said, "We're going to
have to kill them.' I said, "What?' "
At Cantu's directions, the
teen told prosecutor Don Smyth, the gang members led the girls
toward a nearby wooded area. Then, he said, his brother instructed
him to stay back because he was "too small to watch."
Still, he said,
he could see Villarreal and Derrick Sean O'Brien, 19, put Ertman on
her knees, get on either side of her and loop a belt around her neck.
He said he saw her gagging and clawing at the belt with her hands as
the pair strangled her. Pena was similarly killed, apparently with
shoelaces, at a point in the trees beyond his vision.
The day's
final witness, Cantu's sister-in-law, Christina Cantu, 16, said Jose
Medellin, Efrain Perez and Villarreal arrived at the family home at
1128 Ashland soon after the killings with blood on their clothes. "I
asked them what happened," she testified. Medellin and Perez said, "
"We had a lot of fun,' like it was a big joke." The trio later told
a rambling story of meeting "two bitches and having a lot of fun
with them," Christine Cantu explained.
When Peter Cantu arrived, the
gang quickly began dividing the $40 and the many rings and necklaces
stolen from the girls, she said. Jose Medellin, she said, boasted he
had "virgin's blood" on his underpants.
Memorial for Ertman and Pena is dedicated
11/19/93
Classmates of Jennifer Ertman and Elizabeth Pena have not
forgotten how they died. And Thursday they wanted to remind others
how violence is ripping apart their community.
About 100 students at
Waltrip High School in the Heights gathered in a circle clutching
each other's hands and fighting back tears as a memorial was
dedicated to Ertman, 14, and Pena, 16, who were raped, beaten and
strangled. Six teen-agers have been charged.
"We cannot become what
we need to be by remaining what we are," reads the plaque, calling
on the girls' friends to help end the kind of violence that ended
their lives. "I want everyone to know we will always remember them,"
said Leslie Rodriguez, 15, a student who organized the fund-raising
for the memorial. "It's here to ask people to change their ways and
make a difference."
Rodriguez said the students chose to plant a
crepe myrtle behind the 3-foot-tall memorial to represent the
fragility of life. After the tree was planted, the students prayed.
Pena's father Adolph Pena, stood in front of the plaque holding
hands with his daughter's friends.
A few spaces down, Ertman's
father, Randy Ertman, held hands with Bob Carreiro, whose daughter,
Kynara, 7, and her best friend, Kristin Wiley, 10, were stabbed to
death July 20, 1992, in the Wiley home in northwest Harris County.
The slayings remain unsolved. After a brief dedication by Rodriguez
and Anne-Marie Franz, a teacher who helped the students with the
memorial, the students wended their way to the plaque, many touching
it, then blessing themselves. Others just stood and stared as tears
welled.
Randy Ertman's eyes filled with tears as he walked away from
the plaque. "All of these children did this out of their own pockets,"
he said. "I can't ask for more than that. All I can do is thank them."
Pena's father said he is proud of the students' efforts. "But I'm
also sad that they have to do this for their friends," he said.
Boy, 14, gets 40 years for rape-slayings
10/01/93
The 14-year-old co-defendant of five youths facing death
penalties in the rape-murders of two Houston girls was sentenced
Thursday to a 40-year term that can end in parole in less than four
years.
State District Judge Robert Lowry sentenced Venancio Medellin
Jr. to the maximum term possible in Texas juvenile courts, but it
wasn't nearly enough to placate the parents of the girls killed June
24 when they happened onto a gang initiation near a northwest
Houston railroad trestle. "How can anyone tell us justice is working?"
said Adolfo Pena, father of 16-year-old Elizabeth Pena. "I don't
care if he's 14. He's a sick individual. He's an animal!" Randy
Ertman, father of 14-year-old Jennifer Lee Ertman, went even farther
and called for a death penalty for Medellin.
Medellin, whose brother
Jose Ernesto Medellin, 18, is charged with capital murder in the
same case, admitted in court that he'd forced sex on Jennifer Ertman.
Unlike the adult defendants, the 14-year-old was not accused of
stomping on the girls' necks and strangling them with shoelaces and
a belt. The 14-year-old said little in court, but he kept glancing
nervously at the large audience and cluster of television cameras
behind him.
One of his lawyers, Esmeralda Pena-Garcia, read a
statement from the teen outside the courtroom later. "I'm very sorry
for what happened," he said in the statement. "I wish I could go
back and do something to help the girls. I lay awake every night and
wish I had fought the other (defendants), even my brother, to
protect them." Weeks of discussion between prosecutor Robert Thomas
with Venancio Medellin's lawyers, Pena-Garcia and Joel Salazar,
preceded the brief proceeding in Lowry's court.
Defense attorneys
had been reluctant to let their client receive a maximum penalty,
but Pena-Garcia said she decided Wednesday it would be "the best
thing for the juvenile to do what we did today." If he stays out of
trouble in the Texas Youth Commission, he could be returned to the
same juvenile court a month before his 18th birthday and then be
freed on probation until he's 21.
If his conduct is bad, though, he
could be funneled from a juvenile lockup straight into the state
prison system for the rest of the 40-year term. However, he will
receive credit for time already served, making him eligible for
parole within months.
Regardless of which avenue he enters, he'll
likely be released by 1997-98. Since he's less than 15 1/2 years old,
he couldn't legally be certified as an adult and prosecuted in state
district court with his co-defendants.
One possibility is that
Venancio Medellin now may become a prosecution witness at the
capital murder trials early next year of his brother; Raul Omar
Villarreal, 18; Peter Anthony Cantu, 18; Efrain Perez, 17, and
Derrick Sean O'Brien, 18. Thomas and the defense attorneys said that
wasn't an ironclad condition attached to his admission in the Ertman
rape. "It's not out of the question," Pena-Garcia said. "It's
basically up to him." But attorneys for the adult defendants said
having the 14-year-old testify for the prosecution may not even be
necessary. Prosecutors are already armed with full confessions.
Judge may try case early
Move could prevent 5 trials at once
09/28/93
Judges handling capital murder cases against five teen-agers
accused in the killings of two girls agreed Monday it would cut
costs and pre-trial publicity to try the suspects simultaneously in
February.
However, state District Judge Bill Harmon, overseeing the
case against Peter Anthony Cantu, 18, said if his trial is moved out
of Houston, he plans to start it in January. Why? Because, Harmon
indicated, he's ready now. "I'm just not going to wait ... Not if I
have a change of venue," Harmon said, after the initial meeting
among judges, prosecutors handling the cases and attorneys for the
defendants.
Harris County judges have been working to devise a way
to avoid trying the five cases one after another, setting up massive
publicity for each separate case and increasing costs for
transcripts, witness travel and more as the trials drag on for years.
State District Judge Doug Shaver, handling the case against Raul
Villarreal, 18, favored all five judges starting jury selection Feb.
28 and starting testimony April 4.
Everyone agreed that would be a
good idea. But Harmon went on to say his plan, if his trial goes out
of Houston, is to start selection in early January. Cantu reportedly
was the leader of the group of teen-agers who allegedly were
conducting a gang initiation on June 24 when the victims, Elizabeth
Pena, 16, and Jennifer Lee Ertman, 14, happened to walk onto the
scene near a railroad trestle in northwest Houston.
The girls were
raped and strangled. It is widely expected that Harmon will move
Cantu's trial. And if that trial ends in a death penalty, the
outcome is expected to be massive media coverage in Harris County,
just as the other four trials are getting under way.
By having one
of the trials start early, Shaver indicated, it could cause
postponement of the others, upping publicity and trial costs. Other
defendants include Derrick Sean O'Brien, 18; Jose Ernesto Medellin,
18, and Efrain Perez, 17.
Five teens indicted for capital murder in 2 girls' deaths
08/31/93
Five Houston teens accused of gang raping and strangling two
girls were indicted Monday by a Harris County grand jury on capital
murder charges.
Derrick Sean O'Brien, 18; Raul Villarreal, 17;
Efrain Perez, 17; Peter Anthony Cantu, 18; and Jose Medellin, 18,
all face death penalties if convicted in the June 24 slayings of
Elizabeth Pena, 16, and Jennifer Ertman, 14.
All except Villarreal
were indicted for murder in the course of rape, robbery and
kidnapping. Villarreal's indictment differs in that while he is
accused of kidnapping and raping in the course of murder, he is not
accused of robbing either of them.
Assistant District Attorney Don
Smyth said there was insufficient evidence to believe Villarreal
shared in whatever may have been taken from the bodies.
Smyth would
not identify what the teens allegedly stole. "Either property or
cash was taken from the girls during the incident, but I'm not going
to say any more about it than that," Smyth said.
A 14-year-old, who
allegedly took part in the killings, is being prosecuted in juvenile
courts and will not face the death penalty. Investigators said the
girls were walking through a wooded area to Pena's house after a
party June 24 when they came across the group.
Cantu, the purported
leader, was conducting what was described as beer-drinking gang
initiation rites. The girls' bodies were found June 28. Both had
been sexually assaulted, beaten and strangled.
Police arrested the
six youths the next day. The grand jury met for two days, Wednesday
and Monday, before returning indictments.
The only witness to appear
before the panel whom Smyth would identify was the medical examiner
who performed autopsies on the girls. Asked if the two boys who were
present before the violence began appeared before the grand jury,
Smyth said: "I won't comment on that."
All now face arraignment in
the five courts in which they are charged. They remain in the Harris
County Jail with no bond. Cantu will be the first tried, in early
1994 in state District Judge Bill Harmon's court.
Slain girls' dads get letters from Clinton
07/27/93
The fathers of two teen-age girls who were slain last month said
Monday that letters of condolence from President Clinton helped ease
their sorrow. The bodies of Randy Ertman's 14-year-old daughter,
Jennifer, and her friend, Elizabeth Pena, 16, were found June 28.
Both had been sexually assaulted, beaten and strangled. The next day,
police arrested six youths, ages 14 to 18, in the case. The five
oldest have been charged with capital murder; the youngest is being
handled by juvenile authorities.
Investigators said the girls were
walking through a wooded area to Pena's house after a party June 24
when they came across the young gang members, who were conducting
initiation rites and drinking beer.
"I was deeply saddened by the
news of Jennifer's death," Clinton wrote to Ertman in a letter dated
July 14. "The death of a young person is especially tragic, and my
heart goes out to you. As a parent and as president, I feel strongly
that we must make America's streets safer for our children.
Working
together, as parents, neighbors, and law enforcement officials, we
must dedicate ourselves to preventing senseless violence in our
communities." The letter, similar to one sent to the Pena family,
concluded: "You are in my thoughts and my prayers."
Adolph Pena said
the letter was "pretty moving." At the same time, Pena said, he was
"pretty excited about it, to get one, from the president. It's hard
to put it in words." Ertman said the death of his daughter has
shattered his world.
He added: "I know I'm just a little person in
the giant scheme of things. This helps a lot," he said of Clinton's
letter. "It makes you feel pretty good, and I'd like to tell him, 'Thank
you.' I used to be a Republican," Ertman added. "Now I'm a Democrat."
Friends bid farewell to slain teen-ager
07/02/93
Hundreds of grieving teen-agers, overwhelmed by the tragic
reality of murder, packed a funeral home chapel Thursday to say
goodbye to a friend.
They spoke softly, often clinging together, in
a subdued effort to understand Jennifer Ertman's horrifying death. "It's
hard. It really is. It's supposed to be a free world, and you can't
go out," said Monica Alvarez, 16. "Jennifer was innocent. She had
her whole life, and dumb guys like that come and take it all away."
Jennifer, 14, and Elizabeth Pena, 16, were raped and brutally
murdered June 24 on their way home from a party near West 34th and
T.C. Jester in northwest Houston.
They apparently stumbled upon a
gang of drinking teen-age boys. Their bodies were found four days
later. Police say it was a crime of opportunity. Five teen-agers
have been charged with capital murder, and a 14-year-old is being
held by juvenile authorities.
Little was said about the crime
Thursday at the Heights Funeral Home. Friends and family wanted to
talk about Jennifer, not how she died. "No one who has ever known
her can say Jenny was not a good person. I believe she was. I know
she was," said Randy Ertman, her father, in a written eulogy. "Every
friend she has, either called, helped or looked for her when asked.
What more can be said?"
A family friend had to read the eulogy for
Ertman, who called Jennifer a "little stinker." "Her life was short,
but everyone here cared, and that's a lot right there," the eulogy
said. "All the young adults here, please believe in your parents so
that they don't have to do this for you."
One of the nearly 300 teen-agers
listening was Dallas Young, 17, who went to Waltrip High School with
Jennifer. Wearing dark glasses, she stood at the podium, near the
flower-laden casket, and said, "The thing I'll miss the most about
her is the way she laughed."
While putting up posters last week,
Young said she expected Jennifer to bound out of the woods, saying
she was embarrassed by all fuss her disappearance had caused.
More fond words were spoken at the brief funeral by longtime family
friend and neighbor Earl Hatcher. "To Jennifer: We love you. We need
you. We miss you. We are here for you," he said.
Talking through
tears, he reminisced about a younger Jennifer, buzzing tirelessly up
and down the street on a go-cart. "I watched her grow up, and her
interests changed from go-carts to cars," he said. "She was becoming
a woman and, like a butterfly, I saw the transition." When the
tributes were finished, young and old began solemnly passing by the
casket and an enlarged photograph of Jennifer.
Even a Houston police
homicide detective who investigated the case was there to pay his
respects. Tribute also was paid to Pena Thursday in a prayer vigil
at the Pat H. Foley Funeral Home.
Friends and family, many who also
were at Jennifer's funeral, gathered to pray for the young girl. "I
won't have anyone to talk to anymore, and I lost my best friend,"
said Gillian Hemphill, 15. "I just wish she was back, that's all."
Services for Pena are at 10 a.m. today at the funeral home, 1200 W.
34th St.
Community sense of shock and horror over a
crime
07/01/93
Violent crime -- some of it quite brutal -- is unfortunately not
a rarity here. But the sense of shock and horror the community feels
over the particular circumstances of the gang rape and murder of 14-year-old
Jennifer Lee Ertman and 16-year-old Elizabeth Pena reflects just
what a vicious act has been committed and how much of an aberration
has occurred.
This newspaper as a general rule does not editorially
comment on pending criminal cases, for the reason that they are
pending and have not come to legal judgment. In this case, we make
no judgments on its legal particulars, and would have no standing to
do so.
We simply wish to share the community's outrage that such a
thing could have happened, and offer an observation.
When a crime of
appalling nature and high public visibility occurs, it frequently
becomes a vehicle for various people or groups to try to advance
causes or interests or make a case for things that are essentially
peripheral.
It would be unusual if that did not happen in a case
where five teen-agers are charged with two capital murders with
overtones of gang activity, and an underage juvenile is also
implicated.
At this moment, these murders, regardless of their
notoriety, make no case for anything other than for the swiftest
possible resolution in the judicial system of who is responsible,
and of the appropriate punishment.
They do not make a case for
changes in the law, for stiffer punishments or more prison cells,
for implying blame to society or various hapless people or groups
for such a tragedy, or for careless and ill-informed speculation
about the state of the community. It is enough for now to handle the
aftermath of a stomach-wrenching crime.
'Animal-like' gang initiation snared 2 girls
Police say victims
subjected to "sadistic' sexual slayings
07/01/93
Two teen-age girls, strangled after they stumbled across a gang
initiation rite, were first subjected to what one source called "one
of the most vicious, sadistic, animal-like attacks I've ever seen."
About 6 p.m. June 24, six of the Black N White gang's approximately
10 members gathered at a favorite haunt, a railroad trestle crossing
White Oak Bayou near T.C. Jester and West 34th in northwest Houston,
to initiate two prospective members.
Police said the initiation,
which required that the two "wannabes" fight the existing gang
members, was accompanied by a lot of drinking.
About 11:15 p.m.,
Elizabeth Pena, 16, and Jennifer Ertman, 14, left a friend's
apartment in the 4200 block of West 34th to walk to Pena's house in
the 1600 block of Lamonte. They took a shortcut through the woods
behind the apartments. "They walked right by these guys," said
Houston Police Department Lt. John Silva. "I think it was purely a
crime of opportunity ... these girls happened along, and they were
in the wrong place at the wrong time."
When the attack on the girls
began, Silva said, the two would-be gang members left, but none of
the six gang members attempted to stop the assaults.
Prosecutor Ted
Wilson agreed: "They all participated in the rapes and the
strangulations." Charged with capital murder and held without bond
are Peter Anthony Cantu, 18, of 1128 Ashland; Derrick Sean O'Brien,
18, of 4000 W. 34th; Efrain Perez, 17, of 2100 Beaver Bend; Raul
Omar Villarreal, 17, of 4010 Chapman; and Jose Ernesto Medellin, 18,
of 9211 Brackley.
One suspect's 14-year-old brother is being held by
juvenile authorities. According to a source, the girls were forced
to submit to "just about every sex act you can imagine, and a few
you just couldn't imagine."
Statements by some of the suspects say
that after the girls stopped moving, the six took turns jumping up
and down on their bodies, to make sure both were dead.
Police have
said the ages of the girls, both Waltrip High School students, the
brutality of their deaths and the suspects' apparent lack of remorse
made it a particularly grueling case for the investigators. "This is
what we do for a living, and this is what we're constantly exposed
to," Silva said. "In a case like this ... it's a much bigger test of
your self-control. "These guys (investigators) spent hours with guys
who had done something like that ... it's very hard to work with."
Family members and neighbors of the suspects were unavailable or
reticent Wednesday, and little was known of their backgrounds.
Medellin, a Nuevo Laredo, Mexico-born, ninth-grade dropout, pleaded
guilty in September to illegally carrying a firearm, a misdemeanor,
and received a year of probation with deferred adjudication. Once
employed in construction, he apparently was neither employed nor
enrolled when arrested in the killings.
Cantu pleaded guilty Jan. 12
to third-degree aggravated assault, a felony, after threatening a
man with a knife. State District Judge Woody Densen sentenced him to
four years deferred adjudication and 240 hours of community service.
The five adult suspects made court appearances Wednesday.
The county
jail uniforms of Cantu, Perez and O'Brien bore the words "I am,"
along with various epithets, on the back. It was unclear whether the
slurs were written by other inmates or by sheriff's deputies, one of
whom called the five "not real popular" with inmates and guards.
Perez was late in court because of a trip to the jail clinic one
bailiff said was the result of a beating from other prisoners. Asked
to confirm reports that Perez turned in the other teens to police,
Silva said a lot of information was used to make the arrests, adding
that Perez "is not the only factor."
Medellin had no writing on his
uniform, but a deputy said other prisoners had harassed and
intimidated him and threatened him with sexual assault.
Attorney Lon
Harper, appointed to represent O'Brien, described his client as "scared
to death," and said he told Sheriff Johnny Klevenhagen to monitor
O'Brien closely because of three prior suicide attempts -- by
overdose, hanging and cutting his wrists.
Officials could not
confirm reports the 14-year-old suspect was attacked and beaten by
other inmates at juvenile facilities. More than a dozen homicide
officers were assigned to the case, and some were present at
Wednesday's news conference. Silva praised them for closing the case
within 24 hours.
Services for Ertman will be held at 3 p.m. today at
Heights Funeral Home, 1317 Heights Blvd. Services for Pena will be
at 10 a.m. Friday at St. Rose of Lima Catholic Church, 3600 Brinkman.
She, like Ertman, will be buried in Woodlawn Garden of Memories
Cemetery.
A memorial fund for the victims has been set up at Compass
Bank, and any of its offices in the Houston area will accept
contributions.
Daughters' deaths unite two fathers
06/29/93
Randy Ertman and Bob Carreiro stood in the front yard of Ertman's
Heights home Monday, two fathers with something horrible in common
-- both of their daughters were brutally murdered.
Carreiro's ordeal
began 11 months ago, when his 7-year-old daughter, Kynara, was found
stabbed to death, along with her 10-year-old playmate, Kristin Wiley,
in the Wiley's northwest Harris County home.
Ertman's began Monday,
when a nude, decomposed body believed to be that of his daughter,
Jennifer, 14, was found dumped in the woods in northwest Houston.
Next to her was another nude body thought to be that of her Waltrip
High School classmate Elizabeth Pena, 16. "I always figured if
anything was going to happen to someone in this family, it was going
to happen to me," Ertman lamented. "My baby was pure. She was
beautiful and innocent."
Carreiro crossed his arms, gave a
conciliatory nod and said, "I know how you feel." Ertman and
Carreiro met at a Sunday rally protesting efforts for a new trial
for convicted murderer Gary Graham.
Carreiro was there because he
had become a victims' rights advocate since his own loss. "It was
probably somebody very similar to (convicted murderer) Gary Graham
that killed my daughter," Carreiro said.
Ertman, a heavy-set
painting contractor, was at the rally, desperately seeking news
media assistance in finding his daughter, who had been missing since
Thursday night. "I told him yesterday (Sunday), "You're a good man,
but I never want to see you again,' " Ertman said. "Yesterday I was
an observer. Today I'm actively involved."
But in less than 24 hours,
Ertman saw Carreiro again. The two stood in Ertman's yard, drinking
beer, trying to find solace in each other's company. "He asked for
help, and I've been in this 11 months," Carreiro said. "I've gone
through all of it." "He's really helped me a lot," Ertman said.
Carreiro expressed a controlled anger, tempered by time, when asked
what he felt was proper punishment for his daughter's murderer, who
still hasn't been caught. "We want the same kind of justice they
dealt to our kids," he said. "Our kids deserve better than this."
But Ertman's rage was new and white hot. "I'd tell you (what he
would do to the murderer), but you couldn't print it anyway," he
growled. Carreiro, a thin man with graying hair, moved closer to
Ertman. "But we're going to get them," Carreiro promised Ertman. "We'll
never give up until we find the murderers of our children."
Ertman
nodded agreement. "Your baby is an angel looking down on us,"
Carreiro said, sounding like a father who has begun to deal with his
child's death. "I believed in God up until today; today God is in
hell," said Ertman, sounding like a father who hasn't.
Six arrested in death of girls
Bodies of slain teens believed to be Waltrip High
students
06/29/93
Houston police said six people were in custody
today in the slayings of two girls believed to be Waltrip High
School students reported missing last week.
Detectives, who worked all night on the case,
arrested five adults and a juvenile and were preparing charges early
today. Officers would not immediately explain who the suspects are
or how they were connected to the case.
The nude, badly decomposed bodies of the two
girls were found Monday in northwest Houston along the reported
route the two Waltrip students had taken when last seen Thursday
night.
The state of the bodies prevented positive
identification, but police and the families indicated other factors
led them to believe they are those of Jennifer Lee Ertman, 14, and
Elizabeth Pena, 16. "I know it's my daughter," said Randy Ertman,
Jennifer's father. "My daughter's dead."
The cause of death could not be immediately
determined. Houston police said an anonymous man called Monday to
report the bodies. Officers had also received such a call Sunday,
but it resulted in a search of the wrong side of railroad tracks in
the area.
The bodies were discovered about 12:30 p.m. in a
wooded area about 100 feet northwest of a railroad trestle that
crosses White Oak Bayou near T.C. Jester Boulevard and West 34th
Street.
The remains were about 15 feet beyond the tree
line, with clothing scattered around them. A tennis shoe and a hair
barrette were found near the north side of the railroad tracks, and
police recovered several beer cans from the bayou's bank.
Those items and several others made a southward
trail toward the back of the apartment complex where the girls were
last seen.
Randy Ertman said the girls left a party at
Springhill Apartments in the 4200 block of West 34th on Thursday
between 11 p.m. and midnight and were on their way to Pena's home in
the 1600 block of Lamonte, less than a mile away.
The bodies of the girls, who did not have a car,
were found between the apartments and Pena's home. Springhill
resident Jean Johnson, 59, said the densely wooded area is a haven
for criminals and youths who fancy themselves as street gangs.
Gang graffiti is spray painted on the bayou's
concrete banks. "You hear shooting over there all the time," Johnson
said. "A woman got raped in those woods a couple of months ago."
Another neighborhood man, who asked not to be
identified, said there is a "little hole down there in the woods. I
guess you can't call it a crack (cocaine) house because there ain't
no house. I guess it's a crack tree." The families said they began
looking for the girls about noon Friday.
They were reported missing to police at 5:50 p.m.
Friday. Since the information in that report did not indicate foul
play, the case was held for assignment to investigators until Monday
morning, said police juvenile division Sgt. C.L. Boone.
Randy Ertman was outraged about the 60-hour lapse
before the case was assigned. "There's no excuse for a 60-hour lapse,"
he said. Ertman said a juvenile officer, Gary Gryder, was helpful
after he was assigned to the case Monday, and an FBI agent stayed in
contact over the weekend, but no investigator came by during the
weekend to get a picture of the missing girls.
The girls' families spent the weekend peppering
the area where the two were last seen with posters bearing pictures
of the friends, a plea for information and a $10,000 reward.
Adolph Pena, Elizabeth Pena's father, telephoned
police about 7:30 a.m. Monday to say that some youngsters told him
during the weekend they thought they had seen the girls being pulled
into a red Dodge Shadow, said Boone.
Bodies of two girls discovered
Grim find ends weekend search in northwest
Houston
06/29/93
A weekend search for two northwest Houston teen-age
girls ended Monday with the discovery of two nude and badly
decomposed bodies along the pair's reported route when last seen
Thursday night.
The state of the bodies prevented positive
identification, but police and the families indicated other factors
led them to believe they are those of Waltrip High School friends
Jennifer Lee Ertman, 14, and Elizabeth Pena, 16. "I know it's my
daughter," said Randy Ertman, Jennifer's father. "My daughter's dead."
The cause of death could not be immediately
determined. Houston police said an anonymous man called Monday to
report the bodies. Officers had also received such a call Sunday,
but it resulted in a search of the wrong side of railroad tracks in
the area.
The bodies were discovered about 12:30 p.m. in a
wooded area about 100 feet northwest of a railroad trestle that
crosses White Oak Bayou near T.C. Jester Boulevard and West 34th
Street.
The remains were about 15 feet beyond the tree
line, with clothing scattered around them. A tennis shoe and a hair
barrette were found near the north side of the railroad tracks, and
police recovered several beer cans from the bayou's bank. Those
items and several others made a southward trail toward the back of
the apartment complex where the girls were last seen.
Randy Ertman said the girls left a party at
Springhill Apartments in the 4200 block of West 34th on Thursday
between 11 p.m. and midnight and were on their way to Pena's home in
the 1600 block of Lamonte, less than a mile away.
The bodies of the girls, who did not have a car,
were found between the apartments and Pena's home. Springhill
resident Jean Johnson, 59, said the densely wooded area is a haven
for criminals and youths who fancy themselves as street gangs.
Gang graffiti is spray painted on the bayou's
concrete banks. "You hear shooting over there all the time," Johnson
said. "A woman got raped in those woods a couple of months ago."
Another neighborhood man, who asked not to be
identified, said there is a "little hole down there in the woods. I
guess you can't call it a crack (cocaine) house because there ain't
no house. I guess it's a crack tree."
Patrol officers at the scene said the weekend
rain reduced normal pedestrian traffic along the bayou and may have
delayed finding the bodies. The families said they began looking for
the girls about noon Friday. They were reported missing to police at
5:50 p.m. Friday.
Since the information in that report did not
indicate foul play, the case was held for assignment to
investigators until Monday morning, said police juvenile division
Sgt. C.L. Boone.
Randy Ertman was outraged about the 60-hour lapse
before the case was assigned. "There's no excuse for a 60-hour lapse,"
he said. Ertman said a juvenile officer, Gary Gryder, was helpful
after he was assigned to the case Monday, and an FBI agent stayed in
contact over the weekend, but no investigator came by during the
weekend to get a picture of the missing girls.
The girls' families spent the weekend peppering
the area where the two were last seen with posters bearing pictures
of the friends, a plea for information and a $10,000 reward.
Minutes before learning about the bodies being
discovered, Ertman said, "I don't know what's happened. I'm afraid
to think right now, so I'm just doing things, anything I can think
of, calling and calling and working until I'm exhausted. That way I
don't have to think."
Adolph Pena, Elizabeth Pena's father, telephoned
police about 7:30 a.m. Monday that some youngsters told him during
the weekend they thought they had seen the girls being pulled into a
red Dodge Shadow, said Boone.
At that point, Boone said, he assigned two
additional investigators to the one already assigned the case and
notified homicide investigators and the FBI.
O'Brien v. Dretke,
156 Fed.Appx. 724 (5th Cir. 2005) (Habeas).
Background: Following appellate affirmance of his
state court conviction of capital murder and his sentence of death,
and the denial by the United States Supreme Court, 519 U.S. 1094,
117 S.Ct. 774, 136 L.Ed.2d 718, of his petition for writ of
certiorari, petitioner sought writ of habeas corpus in federal court.
The United States District Court for the Southern
District of Texas denied petition and declined to issue certificate
of appealability.
Holdings: Petitioner sought COA. The Court of
Appeals held that:
(1) petitioner did not receive ineffective assistance of trial
counsel;
(2) prosecutor's statements did not effectively withdraw relevant
mitigating evidence from jury's consideration;
(3) any error in admission of police officer's penalty phase
testimony with respect to petitioner's tattoos and gang affiliation
was harmless; and
(4) petitioner was not entitled to penalty phase jury instruction
with respect to his ineligibility for parole should jury recommend
sentence of life imprisonment. Certificate of appealability denied.
PER CURIAM:
Pursuant to 5th Circuit Rule 47.5,
the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set
forth in 5th Circuit Rule 47.5.4. Petitioner Derrick Sean O'Brien
was convicted in Texas state court of capital murder and sentenced
to death.
Subsequently, O'Brien filed a petition for habeas
corpus relief in federal district court, which denied the petition
and declined to issue a certificate of appealability (“COA”) on any
issue. O'Brien now asks this court to grant a COA pursuant to 28
U.S.C. § 2253(c). For the reasons that follow, we DENY the COA
request.
A summary of the facts as recounted by the
district court will suffice: On the night of June 24, 1993, eighteen-year-old
O'Brien participated in the initiation of Raul Omar Villareal into a
gang called the Blacks and Whites.
Four other gang members, Peter Cantu, Roman
Sandoval, Joe Medellin, and Efrain Perez, were present at the
initiation, as were Frank Sandoval and Vernancio Medellin, brothers
of two of the gang members. The initiation consisted of Villareal
fighting each of the other gang members for several minutes.
Following this ritual, the gang members drank beer.
At about 11:30 p.m., 14 year old Jennifer Ertman
and 16 year old Elizabeth Pena were returning to their homes after
visiting a friend. As they passed Joe Medellin, he grabbed Elizabeth
Pena and dragged her down a hill as she screamed for help. Jennifer
Ertman ran back to help Elizabeth Pena, but Joe Medellin grabbed her
and dragged her down the hill as well. Peter Cantu forced Jennifer
Ertman to perform oral sex on him and O'Brien raped both girls.
The gang rape continued for more than an hour.
O'Brien and other members of the gang later boasted that they gang-raped
both girls. The girls's bodies were found on June 28, 1993. They
were close to each other, and were both in an advanced state of
decomposition.
Joe Cantu, Peter Cantu's brother, testified that
he received a call from O'Brien after the murders. O'Brien admitted
raping and killing the girls, and he also expressed concern that the
girls might still be alive and that the gang left evidence,
including beer bottles with fingerprints, at the crime scene.
Both Roman Sandoval and Vernancio Medellin
testified that the gang had no formal leader, and O'Brien acted
voluntarily throughout the rape and murders of the two girls.
O'Brien, Peter Cantu, Efrain Perez, Jose and
Vernancio Medellin, and Raul Villareal were arrested on June 29,
1993. When police knocked on O'Brien's door and announced their
presence, O'Brien attempted to flee out the back door. He was
arrested by officers waiting in back.
Houston Police Officer Todd Miller read O'Brien
his rights and advised him that he was under arrest for capital
murder. O'Brien replied that he knew it was about the two girls who
were killed. O'Brien also said he wanted to make a statement.
The police then took O'Brien to the police
station where he was again informed of his rights and was brought
before a magistrate, who again informed O'Brien of his rights.
O'Brien subsequently informed police that he gave his belt to Jose
Medellin, who used it to strangle one of the girls.
At Medellin's instruction, O'Brien grabbed one
end of the belt and helped strangle the victim. They pulled so hard
that one end of the belt broke off. O'Brien consented to a search of
his apartment, and the police found the belt.
Dr. Marilyn Murr of the Harris County Medical
Examiner's Office testified that the bodies were badly decomposed
and covered with maggots. Most of the soft tissue on Jennifer
Ertman's head and the external portion of her vagina was eaten by
maggots, indicating that there was trauma, hemorrhaging and bleeding.
Autopsy photographs showed the differences in
decomposition between those areas that suffered trauma and those
that did not, such as Jennifer Ertman's legs, chest, and abdomen.
Dr. Murr explained that maggots and bacteria are attracted to blood,
and these cause decomposition.
Strangulation would cause blood to accumulate in
the head area, and cause hemorrhaging in the eyes and mouth, because
the pressure on the blood vessels in the neck prevents blood from
draining from the head. Dr. Murr concluded that Jennifer Ertman died
from trauma to the neck which could include strangulation.
Due to the state of decomposition, she could not
tell what was used to strangle Jennifer Ertman, but the evidence was
consistent with a belt or hands being used. Jennifer Ertman also had
three fractured ribs.
Elizabeth Pena's body was similarly decomposed.
Several teeth were missing, and one tooth was fractured. Dr. Murr
concluded from this that Elizabeth Pena was punched or kicked in the
mouth. Dr. Murr concluded that Elizabeth Pena, too, died of trauma
to the neck consistent with strangulation. The jury found O'Brien
guilty of capital murder for the murder of Jennifer Ertman.
Joyce Jones testified during the penalty phase of
the trial. Jones is a teacher at a Houston school for children with
behavioral problems. She taught O'Brien in 1987-1988. O'Brien fought
with other children and sometimes had to be restrained.
Jones described O'Brien as “very aggressive.” On
one occasion, O'Brien broke another child's jaw. She was not
surprised when she heard about O'Brien's involvement in the murders
of Jennifer Ertman and Elizabeth Pena.
Raymond Earl Ray testified that he worked as a
security guard at K-Mart in 1989. He arrested O'Brien for
shoplifting a pellet pistol. A security guard at a Houston public
school testified that she once *728 saw O'Brien brandish a handgun
at another school security guard. O'Brien threatened to kill the
other guard and fired the gun into the air.
On another occasion, O'Brien brought a toy gun to
school. On a third occasion, security guards received a report that
O'Brien had a gun, but no gun was found. O'Brien also bragged about
stealing cars, consumed alcohol on the school bus, and once jumped
out the bus emergency door with six other students when there was no
emergency.
Houston Police Office Timothy Sutton testified
that he witnessed O'Brien and Peter Cantu punch, kick, and drag
another man at Burger King restaurant about three months before the
murder. O'Brien and Cantu were charged with simple assault.
Gregory Ristivo testified that he engaged in
criminal activity with O'Brien including stealing cars and stealing
jackets and shoes from people. He estimated that he and O'Brien
stole between 25 and 50 cars.
They would then drive the cars, vandalize them,
and sometimes play bumper cars with two stolen cars. Once, O'Brien
tried to steal a gun from a car. O'Brien also used a gun to shoot at
lights and stop signs while joy riding with Ristivo. Sometimes,
O'Brien and Peter Cantu would start fights with random people.
O'Brien once grabbed a person at a mall, threw
him against a wall, and stole his shoes. This theft occurred at mid-day
with other shoppers around. O'Brien intimidated another student at
his school into giving O'Brien his Nike shoes.
Ristivo also saw O'Brien hit a teacher with a
piece of wood, and O'Brien bragged about stabbing someone with a
screwdriver while breaking into a car. Ristivo and O'Brien
burglarized Ristivo's father's house.
Houston Police Officer Jones testified that he
arrested O'Brien for stealing a car. When Officer Jones came upon
the scene, O'Brien was fighting with two wrecker drivers. After
Officer Jones arrested O'Brien and placed him in the police car,
O'Brien continued to yell at the wrecker drivers, threatening to
kill them.
Christopher Rodriguez testified that he knew
O'Brien from his neighborhood. O'Brien bragged about being a member
of the Crips gang and wore Crips colors. O'Brien often bragged about
robbing people.
Dr. Stanley Smoote, a psychologist with the
Houston Independent School District, testified that, based on
O'Brien's records, O'Brien has conduct disorder. This disorder
includes physical aggression toward others. Officer Mike Knox of the
Houston Police West Side Gang Unit testified that O'Brien has
tattoos that appear to be gang symbols.
Based on the tattoos, Officer Knox concluded that
O'Brien was a member of the Folk Nation, a group espousing “the
promot[ion] of the black race” and engaging in criminal activity.
Leslie William Morgan was housed on the same floor as O'Brien at the
Harris County Jail.
Morgan testified that O'Brien denied involvement
in the Ertman-Pena murders for the first six months he was in jail,
but changed his story when other inmates began taunting him after
some news stories came out about the case.
According to Morgan, O'Brien then said, “That
they were nothing but just whores anyway and that [the] pussy was
real good.”
O'Brien was also implicated in another murder. On
January 4, 1993, Houston Police found the dead body of Patricia
Lopez in a park. She was nude from the waist down. Police found a
broken belt a few feet from the body, and five empty beer cans,
cigarette butts and other items in the area.
Patricia Lopez' shirt was unbuttoned and heavily
blood stained; it *729 had three holes in the back. Her jacket also
had three holes in it, and her bra was cut. There was a stab wound
and a cutting wound on her neck, a stab wound on the abdomen, and
three stab wounds on the back.
Several of the stab wounds could have been fatal.
There was no evidence of strangulation, and no evidence of sexual
intercourse. No one was charged with this homicide, but one of the
fingerprints lifted from the crime scene evidence belonged to
O'Brien.
Jose Martin Medellin, the brother of Jose and
Vemancio Medellin, testified that Peter Cantu told him that O'Brien
admitted trying to rape the victim. He was unable to do so and
killed her. O'Brien was present when Cantu made his statement, and
O'Brien agreed with the statement.
Glenn Hanka testified for the defense. He is a
sergeant with the Harris County Sheriff's department, and was the
custodian of records for the Detention Bureau of Inmate Affairs.
Hanka testified that there was no record of O'Brien having any
disciplinary problems while in jail. The defense called no other
witnesses.
O'Brien was arrested on June 29, 1993 and charged
with capital murder. His trial began on April 5, 1994, and the jury
returned a guilty verdict on April 7, 1994.
Sentencing proceedings took place on April 9,
1994, and based on the jury's answers to special issues, O'Brien was
sentenced to death.
The Texas Court of Criminal Appeals affirmed his
conviction and sentence in an unpublished opinion. O'Brien v. State,
No. 71,859 (Tex.Crim.App. May 15, 1996). O'Brien pursued a petition
for writ of certiorari to the Supreme Court, which was denied.
O'Brien v. Texas, 519 U.S. 1094, 117 S.Ct. 774, 136 L.Ed.2d 718
(1997).
Subsequently, O'Brien timely filed a state writ
of habeas corpus. The state trial court adopted the State's proposed
findings of fact and conclusions of law, and recommended that the
writ be denied. The Texas Court of Criminal Appeals denied habeas
relief on February 6, 2002. Ex parte O'Brien, No. 51,264-01 (Tex.Crim.App.
Feb. 6, 2002).
O'Brien then timely filed this federal habeas
petition. The district court denied all claims for habeas relief and,
sua sponte, denied O'Brien a COA on any claim. O'Brien v. Dretke,
No. H-02-1865, slip op. at 47-49 (S.D.Tex. Jan. 14, 2005).
O'Brien filed his petition for writ of habeas
corpus in district court after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), pursuant to
28 U.S.C. § 2254.FN1 AEDPA, therefore, governs this petition. Lindh
v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481
(1997); Hughes v. Dretke, 412 F.3d 582, 588 (5th Cir.2005). FN1.
AEDPA became effective on April 24, 1996. See Martinez v. Dretke,
404 F.3d 878, 884 (5th Cir.2005).
Under AEDPA, a petitioner must obtain a COA
before he can appeal a district court's denial of habeas relief.
See28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 336,
123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)(“Until a COA has been issued[,]
federal courts of appeals lack jurisdiction to rule on the merits of
appeals from habeas petitioners.”). We will grant a COA if the
petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
More specifically, we will issue a COA if the
district court's application of AEDPA to petitioner's constitutional
claims was debatable among reasonable jurists. *730 Miller-El, 537
U.S. at 336, 123 S.Ct. 1029. “The question is the debatability of
the underlying constitutional claim.” Miller-El, 537 U.S. at 342,
123 S.Ct. 1029. “Because the present case involves the death penalty,
any doubts as to whether a COA should issue must be resolved in [petitioner's]
favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).
In deciding whether to grant a COA, we recognize
that section 2254(d) of AEDPA imposes a deferential standard of
review on a federal habeas court with respect to claims adjudicated
on the merits in state court. Brown v. Dretke, 419 F.3d 365, 371
(5th Cir.2005).
A federal court cannot grant habeas relief unless
the state court adjudication of that claim either “(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by
the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d); see Wiggins v. Smith, 539 U.S.
510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Brown, 419 F.3d at
371.
O'Brien seeks appellate review on four grounds:
(1) a Sixth Amendment ineffective assistance of counsel claim, (2)
an Eighth Amendment claim regarding the jury's ability to consider
mitigating evidence, (3) a First Amendment claim relating to
O'Brien's gang affiliation, and (4) a due process claim under
Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d
133 (1994).
A. Would reasonable jurists find it debatable
that O'Brien received effective assistance of counsel?
O'Brien seeks a COA because, according to O'Brien,
reasonable jurists could debate that his Sixth Amendment right to
the effective assistance of counsel has not been violated.
Strickland v. WashingtonFN2 governs ineffective assistance of
counsel claims. See Williams v. Taylor, 529 U.S. 362, 390-91, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000). In order to establish a
violation of the Sixth Amendment right to counsel, a petitioner must
demonstrate that his counsel's performance was deficient and that
the deficiency prejudiced his defense. 466 U.S. at 687-88, 104 S.Ct.
2052. Counsel's performance is deficient only when his
“representation [falls] below an objective standard of
reasonableness.” Id. We measure reasonableness against prevailing
professional norms, viewed under the totality of the circumstances.
Id. at 688, 104 S.Ct. 2052. “Judicial scrutiny of counsel's
performance is highly deferential ···· a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052.
FN2. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
O'Brien argues that a COA should issue because
reasonable jurists could debate that his trial counsel's failure to
adduce only the most perfunctory mitigation evidence did not
constitute ineffective assistance of counsel.
During the punishment phase of O'Brien's trial,
defense counsel presented only one witness: a records custodian who
testified that there were no disciplinary actions taken against
O'Brien during his incarceration at the Harris County Jail. O'Brien
maintains that reasonable jurists could debate the district court's
conclusion that his counsel was not ineffective for failing to
discover and present any additional mitigating evidence.
1. Mental Health Evidence
O'Brien first contends this court should grant a
COA because reasonable jurists could debate that his counsel's
failure*731 to pursue potentially mitigating mental health evidence
did not constitute ineffective assistance of counsel.
O'Brien's counsel retained a clinical
psychologist, Dr. Jerome Brown, a psychiatrist, Dr. Roy Aruffo, and
a clinical social worker, Ann Estus, to evaluate O'Brien. O'Brien
contends that his counsel was in possession of their psychological
reports, which were not presented to the jury during sentencing,
that suggested a long history of abuse and attendant psychological
problems and allegedly would have been beneficial to O'Brien's case.
O'Brien points to a list of factors, identified
in Dr. Aruffo's psychiatric evaluation, as having important
psychological significance: (1) O'Brien's mother's difficulties with
men at the time of O'Brien's birth; (2) early failures in
establishing a mother-infant bond; (3) asthma at an early age; (4)
attachment to a grandmother who proved to be over-indulgent and had
difficulties in setting boundaries; (5) having been treated harshly
in the formative years, by two jealous men-one married to his mother
and one married to his grandmother; and (6) becoming much too deeply
involved in one gang so that his behavior was controlled externally.
However, O'Brien's counsel chose not to call Dr. Aruffo, or any of
these mental health experts, to testify.
Nevertheless, reasonable jurists would not
disagree that O'Brien's counsel's decision regarding the testimony
of Drs. Brown and Aruffo was reasonable under the circumstances.
Dr. Brown's psychological report was unfavorable
to O'Brien, concluding that “[a]lmost all of the clinical scales [were]
elevated to pathological levels.” Dr. Brown stated in his report: [I]t
is my belief that the information obtained would be more harmful to
Mr. O'Brien in the long run than helpful···· Much of his personality
development and the documented problem behaviors he has exhibited
for a number of years reveal him to be essentially anti-social in
basic personality characteristics and as able to at least tolerate,
if not participate in, violent and poorly planned criminal
activities such as the crime for which he is now being tried. As you
know, if I testify in court my results will be available for
scrutiny and use by the prosecution···· I would not recommend that I
be asked to testify on his behalf in the punishment phase.
In addition, Dr. Aruffo noted that O'Brien's
“perception of reality is greatly colored by defects in his
personality.” Although Dr. Aruffo observed in his prognosis that
“[t]here is a possibility that in a few years [O'Brien] would be
more adult like and inhibited and restrained,” he diagnosed O'Brien
with Antisocial Personality Disorder and stated, “There is little or
no indication that Mr. O'Brien wants or needs to make amends when he
has transgressed conventional morality. People with a mature
conscience feel good about themselves when they obey the commands of
their conscience. This young man feels increased self esteem when he
offends society.”
Finally, Ann Estus, the clinical social worker,
concluded that due to O'Brien's “lack of judgment or impulse control
and his inability to empathize with his victims, it is likely he
would, in a new community, once again seek out an anti-social peer
group.”
The district court concluded that the state
court's refusal to grant habeas relief based on this evidence was
not unreasonable: counsel made a strategic decision not to call
these mental health witnesses, considering their negative
observations of O'Brien's character.
O'Brien's trial counsel recognized that the
mental health experts' testimony would be more harmful to the
defense than helpful, particularly given that counsel would have had
to make the expert reports available to the prosecution *732 if
these witnesses had been called to testify.
The petitioner also indicates that although
counsel investigated O'Brien's mental health, the investigation was
not conducted in a timely fashion. However, the record shows that
the mental health evaluations and reports were completed prior to
the commencement of O'Brien's trial. In addition, counsel conferred
with the mental health experts who expressed opinions that counsel
deemed detrimental to O'Brien.
2. Ella Jones
O'Brien contends this court should grant a COA
because reasonable jurists could debate that counsel's failure to
call his mother, Ella Jones, to testify on his behalf did not
constitute ineffective assistance of counsel. Ms. Jones submitted
statements to the state habeas court and federal district court,FN4
expressing concern that she was not given the opportunity to speak
on her son's behalf or say anything to contradict the other
witnesses.
In her statements, Ms. Jones explains that her
son had experienced some difficulties in school as a result of
alleged sexual advances by a male teacher. She describes her son as
a young man headed in a positive direction.
FN4. With respect to Ms. Jones' affidavits, we
only consider the factual allegations that were presented to the
state habeas court. See Dowthitt v. Johnson, 230 F.3d 733, 745-46
(5th Cir.2000).
However, the record reveals that counsel spoke
with Ms. Jones and made a strategic decision not to call her as a
witness. During Ms. Jones's interview with counsel, Ms. Jones stated:
she had attempted to take O'Brien to counseling, but that he
wouldn't attend faithfully; she was not surprised that the incidents
leading up to O'Brien's prosecution had occurred; and she had warned
O'Brien on numerous occasions about his conduct and the people with
whom he was associating.
In addition, O'Brien told his counsel that he did
not want his mother to testify because he did not want to subject
her to cross-examination and other harassment by the prosecution.
“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.”
Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. Further, “in
evaluating strategic choices of trial counsel, we must give great
deference to choices which are made under the explicit direction of
the client.” U.S. v. Masat, 896 F.2d 88, 92 (5th Cir.1990).
The state habeas court found counsel's
explanation as to why counsel did not call Ms. Jones to testify
credible. State court findings of fact are presumed to be correct,
unless rebutted by clear and convincing evidence. See28 U.S.C. §
2254(e)(1); Valdez v. Cockrell, 274 F.3d 941, 947-48 (5th Cir.2001);
see also Pondexter v. Dretke, 346 F.3d 142, 149 (5th Cir.2003).
Consequently, the district court agreed with the
state habeas court: counsel made a professional judgment that Ms.
Jones would not be a favorable witness. The district court explained
that “[w]hile hindsight might suggest that counsel should have
called [Ms.] Jones, the tactic was not so ill chosen that it
permeated the entire trial with obvious unfairness.” O'Brien v.
Dretke, No. H-02-1865, slip op. at 13 (S.D.Tex. Jan. 14, 2005)(internal
quotations omitted). Reasonable jurists would not find this
debatable.
3. James Fortson
O'Brien next argues this court should grant a COA
because reasonable jurists could debate that defense counsel's
failure to call James Fortson, O'Brien's step-grandfather, to
testify during sentencing did not constitute ineffective assistance
of counsel.
O'Brien contends that evidence of Mr. Fortson's
mistreatment of *733 him could have provided the foundation for a
meaningful mitigation case. O'Brien lived with Mr. Fortson, and
O'Brien's psychological evaluations indicate that Mr. Fortson was
abusive and intentionally cruel toward O'Brien when he was child.
However, the district court found that counsel's
decision not to call Mr. Fortson was a reasonable strategic decision.
Dr. Aruffo's psychiatric evaluation states that Mr. Fortson was
cruel to O'Brien because he was “jealous of the boy.” Given Mr.
Fortson's reported hostile feelings toward O'Brien, counsel
concluded that Mr. Fortson would not be a favorable witness to the
defense.
Mr. Fortson's affidavit, that he submitted during
the state habeas proceeding, states that he was never contacted by
defense counsel regarding O'Brien's childhood and that he would have
liked to discuss his role in O'Brien's life. However, Mr. Fortson's
affidavit does not indicate what the nature of his testimony would
have been.
Complaints based upon uncalled witnesses are
disfavored because “speculations as to what these witnesses would
have testified is too uncertain.” Alexander v. McCotter, 775 F.2d
595, 602 (5th Cir.1985); see Evans v. Cockrell, 285 F.3d 370, 377
(5th Cir.2002)( “[C]omplaints of uncalled witnesses are not favored
in federal habeas corpus review because allegations of what the
witness would have testified are largely speculative.”). Here, such
uncertainty precludes the debatability of a finding of prejudice.
4. Other Witnesses
O'Brien contends this court should grant a COA
because reasonable jurists could debate that counsel's failure to
identify potentially mitigating witnesses did not constitute
ineffective assistance of counsel. O'Brien submits affidavits from
Sheila and Lois Powers and Eddie and Gwendolyn Walker. FN5 Sheila
and Lois Powers are family friends of O'Brien and the Walkers are
O'Brien's aunt and uncle.
Their statements indicate that O'Brien is a soft-spoken,
respectful young man. The affidavits also suggest O'Brien felt that
he was not taken seriously after his school disregarded his
allegations of sexual advances by a male teacher. Eddie Walker
characterizes this incident as the source of O'Brien's difficulties.
All four declarants state that they would have testified on
O'Brien's behalf.
FN5. O'Brien submitted these affidavits, for the
first time, to the district court on federal habeas review. Section
2254(b)(1)(A) of AEDPA states that “a writ of habeas corpus ···
shall not be granted unless it appears that-the applicant has
exhausted the remedies available in the courts of the State.”
However, we will consider these affidavits to the
extent they do not present material evidentiary support to the
federal court that was not presented to the state court. See
Dowthitt, 230 F.3d at 745-46. In his state habeas petition, O'Brien
argued that his trial counsel failed to conduct a meaningful
investigation into potential mitigating testimony.
He further stated that, had counsel discovered
available potential witnesses, the testimony would have included
O'Brien's family history, character, background, and evidence
related to attempted sexual abuse by a teacher.
Despite counsel's failure to discover these
potential witnesses, reasonable jurists could not disagree that
counsel's investigation into O'Brien's background was reasonable.
See Williams v. Maggio, 679 F.2d 381, 393 (5th Cir.1982) (“Petitioner's
final argument charges counsel with failure to conduct a thorough
pre-trial investigation····
This challenge to counsel's performance attempts
to do precisely that which is barred by this Court; it invites us to
question counsel's trial strategy and judge his performance
incompetent if it was not errorless.”); see also Burger v. Kemp, 483
U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (“[C]ounsel's
decision *734 not to mount an all-out investigation into
petitioner's background in search of mitigating circumstances was
supported by reasonable professional judgment.”).
Counsel asked O'Brien to identify potential
mitigation witnesses, interviewed several of O'Brien's family
members and friends, and retained mental health experts.
Based on counsel's findings, he determined that
none of these potential witnesses would be favorable to the defense.
When counsel speaks with a great number of mitigation witnesses, but
reasonably determines those witnesses would do more harm than good,
he adequately investigates possible mitigating evidence. See Boyle
v. Johnson, 93 F.3d 180, 188 n. 18 (5th Cir.1996).
The district court's rulings regarding O'Brien's
ineffective assistance of counsel claim are not debatable among
jurists of reason. A COA may not issue as to this claim.
B. Would reasonable jurists find it debatable
that the jury was unhindered in its ability to consider mitigating
evidence during the punishment phase of trial?
O'Brien contends this court should grant a COA
because reasonable jurists could debate that his Eighth and
Fourteenth Amendment rights were not violated. According to O'Brien,
the jury was unable to consider all of the mitigating evidence
presented, in violation of those rights. Under Penry v. Johnson,“the
jury [must] be able to consider and give effect to a defendant's
mitigating evidence in imposing sentence.” 532 U.S. 782, 797, 121
S.Ct. 1910, 150 L.Ed.2d 9 (2001) (internal citations omitted).
O'Brien points out that the prosecutor told the jury there must be a
connection between mitigating evidence and the charged crime. He
concedes that the trial court gave the proper statutory charge, but
argues that its effect was negated by deliberate, constant
limitations imposed by the prosecutor.
During voir dire examination, the prosecutor told
some of the prospective jurors that the only relevant mitigation
evidence was evidence connected to the crime itself. For example,
the prosecutor stated: And you might consider whether or not those
things in his background or in the case background are connected to
the actual killing. For example, if there's something in a
defendant's background that you didn't think was even connected to
why he did what he did, then you might consider that as not
sufficiently mitigating.
In addition, during direct examination at the
punishment phase, a witness testified that O'Brien was learning
disabled in mathematics. The prosecutor asked whether this
disability could be connected to the crime as an excuse.
Finally, in his closing argument, the prosecutor
reiterated that a nexus between possibly mitigating evidence and the
crime was required; FN6 *735 he concluded that “there's not anything
at all [the jury] heard from any witness that is mitigating.”
O'Brien contends that, due to the prosecutor's
statements throughout the trial, the jury was unable to consider his
youthFN7 and his behavior while in the Harris County Jail.FN8 FN6.
During closing argument at punishment, the prosecutor stated:
Then you move on to [Special Issue] No. 3, then
you look at the Charge. And it tells you to ask yourself if there's
anything mitigating. And we talked about what does mitigating
mean···· What, if anything, is mitigating about him that you heard?
The only thing that I can possibly think of is that the guy's
learning disabled in arithmetic, he can't add···· Well, does that
have anything to do with raping and killing these two girls? Can
that have possibly somehow be connected as an excuse for what he's
done to them?
[Dr. Smoote] told you no. You didn't need a
psychiatrist or psychologist to tell you that. It doesn't take a
rocket scientist to figure out if you can't add that doesn't give
you the right to go out and kill ··· other people. So there's not
anything at all that you heard from any witness that is mitigating.
FN7.
O'Brien was eighteen years old at the time of the
murder. Youth is constitutionally relevant to the sentencing
determination. See Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct.
869, 71 L.Ed.2d 1 (1982). FN8. A good disciplinary record during
incarceration is a relevant mitigating circumstance. See Skipper v.
South Carolina, 476 U.S. 1, 7, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).
Prior to the Supreme Court's decision in Tennard
v. Dretke,FN9 we required a petitioner to show that mitigating
evidence was relevant by demonstrating that he had a uniquely severe
permanent handicap acquired through no fault of his own, and there
was a nexus between the offense and the petitioner's severe
permanent condition. See Davis v. Scott, 51 F.3d 457, 460-61 (5th
Cir.1995), overruled in part by Tennard, 542 U.S. at 283-84, 124
S.Ct. 2562; Cole v. Dretke, 418 F.3d 494, 499 (5th Cir.2005).
The Tennard Court, however, explicitly held our
“uniquely severe permanent handicap” and “nexus” tests incorrect and
rejected them. Tennard, 542 U.S. at 289, 124 S.Ct. 2562.
Instead, the Supreme Court clarified its “low
threshold for relevance” of mitigating evidence stating, “[A] State
cannot bar the consideration of evidence if the sentencer could
reasonably find that it warrants a sentence less than death.” Id. at
285, 124 S.Ct. 2562 (internal quotations omitted). FN9. 542 U.S.
274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004).
Although O'Brien's trial took place prior to
Tennard, the trial court's jury instructions were constitutional,
reflecting the proper statutory charge. In Lockett v. Ohio, a
plurality of the Supreme Court held that the “Eighth and Fourteenth
Amendments require that the sentencer, in all but the rarest kind of
capital case, not be precluded from considering, as a mitigating
factor, any aspect of a defendant's character or record ··· as a
basis for a sentence less than death.” 438 U.S. 586, 604, 98 S.Ct.
2954, 57 L.Ed.2d 973 (1978).
During the punishment phase of
O'Brien's trial, the jury was required to respond to the following
special issue, in accordance with Texas's current capital sentencing
scheme: Taking into consideration all of the evidence, including
evidence of the offense, the defendant's character and background,
and the personal moral culpability of the defendant, do you find
that there is a sufficient mitigating circumstance or circumstances
to warrant that a sentence of life imprisonment rather than a death
sentence be imposed? FN10
FN10. This was the third of three special issues
presented to the jury. The first special issue inquired, “Is there a
probability that the defendant, Derrick Sean Obrien [sic] would
commit criminal acts of violence that would constitute a continuing
threat to society?” The jury answered this first question in the
affirmative. The second special issued asked:
Do you find from the evidence beyond a reasonable
doubt that Derrick Sean Obrien [sic], the defendant himself,
actually caused the death of Jennifer Ertman, the deceased, on the
occasion in question, or if he did not actually cause Jennifer
Ertman's death, that he intended to kill Jennifer Ertman or another,
or that he anticipated that a human like would be taken? The jury
also answered this question in the affirmative. SeeTex.Crim.
Proc.Code Ann. art. 37.071(2)(e)(1).
The jury was further instructed that “the term
‘mitigating evidence’ or ‘mitigating circumstances' means evidence
that a juror might regard as reducing the defendant's moral
blameworthiness.” In addition,*736 the judge instructed the jury
that “[a] mitigating circumstance may include, but is not limited to,
any aspect of the defendant's character, background, record,
emotional instability, intelligence or circumstances of the crime
which you believe could make a death sentence inappropriate in this
case.”
In light of Tennard, these instructions “do not
unconstitutionally preclude the jury from considering, as a
mitigating factor, any aspect of a defendant's character or record
and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” Beazley v.
Johnson, 242 F.3d 248, 260 (5th Cir.), cert. denied,534 U.S. 945,
122 S.Ct. 329, 151 L.Ed.2d 243 (2001)(internal quotations omitted);
see Cole v. Dretke, 418 F.3d 494, 504 & n. 44 (5th Cir.2005)(indicating
that Texas's current capital sentencing scheme is constitutional
after Tennard because it includes a “catchall instruction on
mitigating evidence”). In the present case, the trial court's
instructions taken alone, allowed the jury to consider and give
effect to O'Brien's youth and post-arrest behavior.
However, the context of the proceedings is
relevant in determining whether the jury could reasonably have given
effect to the mitigating evidence. Boyde v. California, 494 U.S.
370, 383, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); Penry, 532 U.S. at
800-02, 121 S.Ct. 1910 (“[W]e will approach jury instructions in the
same way a jury would-with a commonsense understanding of the
instructions in the light of all that has taken place at trial.”) (internal
quotations omitted); Simmons v. South Carolina, 512 U.S. 154, 171,
114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)(“[I]n some circumstances the
risk that the jury will not, or cannot, follow instructions is so
great, and the consequences of failure so vital to the defendant,
that the practical and human limitations of the jury system cannot
be ignored.”) (internal quotations omitted).
In that vein, O'Brien argues that the
prosecutor's comments prejudiced the jury such that it was unable to
give meaningful effect to any of the mitigating evidence presented.
Indeed, the district court recognized that the
prosecutor's comments seemed intended to restrict the jury's
consideration of mitigating evidence. Although a “crucial assumption
underlying the system of trial by jury is that parties will follow
instructions given them by the trial judge,” Marshall v. Lonberger,
459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); see
Penry, 532 U.S. at 799, 121 S.Ct. 1910 prosecutorial
misrepresentations may have a decisive effect on a jury. Boyde, 494
U.S. at 384-85, 110 S.Ct. 1190; see Penry, 532 U.S. at 799-800, 121
S.Ct. 1910 (finding it logically and ethically impossible for the
jury to follow the jury instructions).
In an instance where prosecutorial statements
allegedly influence a jury's interpretation of the statutory charge,
the proper inquiry is whether there is a reasonable likelihood that
the jury has applied the instructions in a way that prevents it from
considering constitutionally relevant evidence. Boyde, 494 U.S. at
380, 110 S.Ct. 1190. This is particularly true in capital cases
where there is “a strong policy in favor of accurate determination
of the appropriate sentence.” Id.
In this case, reasonable jurists would not debate
the effectiveness of the trial court's statutory charge. In context,
rather than arguing that the jury was precluded from considering
these factors as mitigating circumstances, the prosecutor's
statements could have been interpreted to mean that the jury should
not consider the factors mitigating in O'Brien's case. See Jones v.
Butler, 864 F.2d 348, 360 (5th Cir.1988).
Even if the jury understood the prosecutor's
statements to mean the former, we do not attribute to a prosecutor's
comments the same force as instructions of the court. Boyde, 494 U.S.
at 384-85, 110 S.Ct. 1190.
Reasonable jurists would not *737 disagree that
the prosecutor's statements were not so pervasive as to overcome the
presumption that jurors follow their instructions. See, e.g.,
Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d
176 (1987); United States v. Hopkins, 916 F.2d 207, 218 (5th
Cir.1990).
There is not a reasonable likelihood that the
jury felt precluded from considering constitutionally relevant
evidence. Reasonable jurists would not disagree as to the district
court's resolution and a COA may not issue as to this claim.
C. Would reasonable jurists find it debatable
that introduction of evidence during the punishment phase of trial,
concerning O'Brien's gang affiliation, was harmless?
O'Brien contends this court should grant a COA
because reasonable jurists could debate that his First Amendment
right to freedom of association was not violated when, during
sentencing, the prosecution called Police Officer Knox to testify
about the significance of O'Brien's tattoos. Officer Knox testified
that one of O'Brien's tattoos indicated that O'Brien may be a member
of a gang, and that gangs are generally involved in criminal
activity.
O'Brien relies on Dawson v. Delaware,FN11 to
argue that the introduction of evidence of his gang affiliation
violated his constitutional rights because his gang affiliation had
no bearing on the issue being tried.
FN11. 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d
309 (1992) (stating that where both parties stipulated to the
defendant's membership in the Aryan Brotherhood prison gang, but the
prosecution offered no evidence of the gang's violent tendencies
relevant to sentencing, the use of that associational evidence
violated the defendant's First Amendment rights).
Finding any possible error harmless, the district
court concluded that the state habeas decision denying relief was
not unreasonable.FN12 The district court first noted that O'Brien's
case fell somewhere between Dawson and Fuller v. Johnson.FN13
The district court observed that a prosecutor can
validly introduce evidence of gang affiliation if it is relevant to
whether the defendant is a future danger. In O'Brien's case, the
state introduced evidence that O'Brien belonged to a gang that was
involved in criminal activity. FN12.
More specifically, the district court stated that
“[t]his case falls somewhere between Dawson and Fuller. ··· While
the facts of this case place it in a somewhat gray area, any error
in admitting this testimony was harmless.” O'Brien v. Dretke, No.
H-02-1865, slip op. at 27 (S.D.Tex. Jan. 14, 2005). FN13. 114 F.3d
491 (5th Cir.1997)(holding that where the State introduced evidence
that the defendant was a member of a gang that had committed
unlawful or violent acts the defendant's First Amendment rights had
not been violated).
Without deciding if the trial court erred by
admitting Officer Knox's testimony, the district court held that any
error in admitting the testimony was harmless. Brecht v. Abrahamson,
507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)(“[T]here
may be some constitutional errors which in the setting of a
particular case are so unimportant and insignificant that they may,
consistent with the Federal Constitution, be deemed harmless.”) (internal
quotations omitted).
We find that reasonable jurists would not
disagree. As the district court explained, O'Brien was convicted of
an exceedingly brutal rape-murder of a teenage girl. The jury heard
a large amount of evidence establishing O'Brien's long history of
criminality and violence.
Other witnesses, in addition to Officer Knox,
testified regarding O'Brien's gang membership; Chris Rodriguez and
Joe Cantu both testified as to O'Brien's affiliation with gangs.
Furthermore, testimony*738 presented during the
guilt-innocence phase of trial established that the rape and murder
of Jennifer Ertman occurred following the initiation of a new member
into O'Brien's gang. A COA may not issue as to this claim.
D. Would reasonable jurists find it debatable
that O'Brien was not denied due process under Simmons v. South
Carolina?
O'Brien argues this court should grant a COA
because reasonable jurists could debate that he was not denied due
process when the trial court refused to allow the jury to hear that,
if sentenced to life imprisonment, he would be ineligible for parole
for 35 years.
In Simmons, the Supreme Court held that when “the
alternative sentence to death is life without parole ··· due process
plainly requires that [the defendant] be allowed to bring [parole
ineligibility] to the jury's attention by way of argument by defense
counsel or an instruction from the court.” Simmons, 512 U.S. at 169,
114 S.Ct. 2187.
O'Brien concedes that, if sentenced to life
imprisonment, he would have been eligible for parole after 35 years.
However, O'Brien argues that Simmons applies to his case because, at
the time of his conviction, Texas was a de facto life without parole
state.FN14
However, “ Simmons applies only to instances
where, as a legal matter, there is no possibility of parole if the
jury decides the appropriate sentence is life in prison.” Ramdass v.
Angelone, 530 U.S. 156, 169, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000)(emphasis
added). We have repeatedly rejected claims that Simmons extends to
instances other than where, as a legal matter, there is no
possibility of parole. See Green v. Johnson, 160 F.3d 1029, 1045
(5th Cir.1998) (“[T]he Fifth Circuit has repeatedly refused to
extend the rule in Simmons beyond those situations in which a
capital murder defendant is statutorily ineligible for parole.”).
O'Brien does not fall within the scope of Simmons.FN15 Reasonable
jurists would not disagree with the district court's resolution of
this claim. We will not issue a COA.
FN14. In 2005, the Texas legislature amended the
Texas Code of Criminal Procedure, formally creating life without
parole. SeeTex.Crim. Proc.Code Ann. art. 37.071(2)(e)(2). FN15. The
district court also held that O'Brien was barred from any extension
of Simmons under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989).
We find that jurists of reason could not disagree
with district court's resolution of O'Brien's constitutional claims.
We DENY a COA on all claims.
