Luckiest' killer in Texas sees a future now

Supreme Court decision adds impetus to debate on adding life without parole sentence in Texas

Austin American-Statesman

March 16, 2005

Convicted killer Johnnie Bernal considers himself a lucky man.

When the U.S. Supreme Court 2 weeks ago banned the execution of convicts who committed their crimes before they turned 18, the former Houston gangbanger's life was spared.

Bernal was just 1 day short of his 18th birthday the night college student Lee Dilley, 19, was gunned down during a botched robbery.

"I made it by one day, I know," Bernal, now 28, said from an interview cell just off death row at the Polunsky Unit outside Livingston, where he will soon depart for a regular prison - and the possibility of parole after he serves 40 years.

"Now, my focus is going to be on my appeal, on getting out - completely out."

Just as Bernal has become a national poster boy for critics of the high court's decision, he is a case study of what promises to be Texas' next hot-button issue: Whether the Legislature should enact a law allowing for life without parole to keep underage capital killers from one day becoming eligible to leave prison.

That debate begins Tuesday, when the Senate Criminal Justice Committee takes up Senate Bill 60, which would add life without parole as a 3rd sentencing alternative for capital crimes. At present, juries must decide between execution and life with the possibility of parole.

"Is there a danger to the public? Yes. Has this (Supreme Court) decision left a loophole in our law?

Yes," said state Sen. Eddie Lucio Jr., D-Brownsville, a self-proclaimed supporter of the death penalty and sponsor of SB 60, his 3rd try to pass life without parole in as many legislative sessions.

4 related bills are pending in the Texas House, including one that would keep the choices to 2: death and life without parole. Lucio's bill is the 1st to get a public hearing, a step that Sen. John Whitmire, the chairman of the Criminal Justice Committee, says promises to be "one of the most serious issues debated this session."

Whether it has the votes to pass into law this session is far from certain.

In all, the high court's decision freed Bernal and 28 other convicted killers from Texas' death row, including Robert Springsteen IV, who was convicted in Austin's infamous 1991 yogurt shop murders.

For Lucio and other supporters, the issue is simple: 47 other states lock up their most heinous killers without the chance of ever getting out. Only Texas, Alaska and New Mexico do not.

In the past, big-city prosecutors and victims' rights groups have steadfastly opposed the change, arguing that it will stack the legal deck in favor of a life term. Ironically, proponents of the change argue much the same position.

"There's no finality in all this unless there's an execution," said Dianne Clements of the Houston-based victims' advocacy group Justice for All.

Statistical studies in other states that have enacted life without parole show no decrease in death sentencing rates. Death penalty opponents insist that death penalty decisions have declined as news of DNA evidence and wrongful convictions have made jurors more cautious. Despite that, Lucio warns that inaction this year could pose a new risk.

"The way it is now, with the Supreme Court ruling in effect, someone on death row could eventually walk out of prison," Lucio said. "That shouldn't happen."

Freedom is exactly what Bernal hopes for.

"My goal is one day to get out of here," he said. "I want to get into school, to get my GED, to get married, to make something of myself ? maybe, someday."

On Friday, Aug. 19, 1994, Bernal was thinking about none of the such. The tall, quiet 10th-grade dropout, known as the Puppet by the neighborhood gang he hung out with, the Northwest Mafia, spent the evening cruising Northwest Houston with 4 friends, sniffing paint and looking for girls.

Shortly after midnight, their white-topped blue Buick Regal pulled up alongside three boys and a girl standing outside Nick's Drive-In, a neighborhood ice house.

"We were just going to mess with them, that's all," Bernal said.

In an instant, an occupant of the car pointed a pistol out the window and demanded their money. The girl ran, then the boys. 4 shots rang out, one hitting Dilley's left earlobe, another puncturing his back and piercing his heart. He died instantly.

Bernal went home, where Houston police found him 12 days later, a pistol and bullets in his nightstand drawer. Ballistics tests introduced at his trial linked the gun to the murder. Bernal was found guilty and sentenced to death, one of a spate of young killers sent to death row beginning in the mid-1990s as drug- and gang-related crimes swept the state.

Bernal insists that he is innocent, that one of his friends in the back seat, a 14-year-old boy, leaned across him with a pistol and fired the fatal shots.

That youth, who was on probation for weapons possession and evading arrest, was never charged in the attack. Neither were 2 others. The driver is serving a 35-year sentence for aggravated robbery.

In its decision, the Supreme Court drew a legal line at age 18 between criminals who are too young to fully comprehend their actions and those who are. Bernal says that played a role in his case.

"I was just a kid. I didn't know. I was hanging with the wrong crowd," he said. But in nearly 10 years on death row, Bernal added, "I've grown up. . .. I've found God. . . . I pray every day that (Lee Dilley) is in peace. I can never take back what happened, even though I wish I could."

Such words ring hollow to victims' survivors, Texans who have been among the most vocal in opposition to life without parole.

"The victims need to be heard," said Paula Kurland, a longtime advocate from Humble whose daughter, Mitzi Johnson Nalley, 21, was stabbed to death in a brutal 1986 attack at a North Austin apartment that also killed Nalley's roommate, Kelly Joan Farquhar, and seriously injured a friend who tried to come to her assistance. Jonathan Nobles was executed in 1998 for the crimes.

Kurland is among those who will be at today's hearing, to testify in favor of Lucio's bill.

"It would be truth in sentencing," Kurland said. "People should know that life is life. Sometimes lifeis a death sentence, because (offenders) have to live with their crime for the rest of their life."