Lawyer fights for client's life

October 27, 2012

"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual...” Mr. Justice Potter Stewart, U.S. Supreme Court

Waco – A very special audience of 6 men and 7 women are witnessing an exclusive tournament of legal jousting in a local district courtroom.

Though executions of convicted capital murderers have become routine in Texas, ordinary items in the routine of unremarkable news days, this is the first time in 8 years a McLennan County jury has heard a capital murder case.

The key elements of conservative legal thinking on the death penalty are on full display for the 12 jurors and one alternate at the capital murder trial of one of four accused gangster gunmen who allegedly shot down two rivals in a surprise attack to avenge the shooting death of an associate nearly one year earlier.

The opposing counsel carry out their strategy with similar methods of surprise.

For instance, prosecutors suddenly and unexpectedly rested their case early in the day Friday.

The trial will resume Tuesday after 19th Criminal District Court Judge Ralph T. Strother, who said he was just as surprised as the defense team, gave the attorneys some time to prepare their case.

Walter Reaves, co-counsel for the defense, said the move was totally unexpected and caught the defense team of three seasoned attorneys completely by surprise. Mr. Reaves is involved in other cases with the Innocence Project run by New York attorney Barry Scheck, which often clears men falsely accused and convicted of crimes they did not actually commit, by using DNA analysis.

Lead defense attorney Russ Hunt, Sr., is a member of the State Bar College of defense counselors who promulgate the continuing education program for lawyers who defend criminal defendants.

Prosecutors led by Michael Jarrett, delivered a classic right jab, left cross and right uppercut combination when they presented the testimony of a woman who claims to have seen one of the murder weapons – an assault rifle – and a fearful young man who said he heard the defendant, Ricky Cummings, say he was about to shoot someone.

A retired Dallas police detective who is now a custodian of telephone records presented evidence of cell phone calls and text messages sent and received at the time of the March 28, 2011, shooting ambush that left two men dead and two others severely wounded at Lakeside Villas apartments in east Waco.

Yet another witness testified earlier that an uncle of the accused gunman threatened her, an offense for which the man is languishing in the McLennan County Jail. The following morning, she found her tires slashed when she made ready to come to the courthouse and give her testimony.

Tensions are running high between two extended families of African-Americans who are forced to sit on opposite sides of the courtroom, prohibited from carrying cell phones for fear they might take pictures of jurors in an effort to intimidate them, and constantly surveilled for signs of impending hostility.

In the midst of all this drama, the rival prosecution and defense teams are engaged in the sweet science of the joust, the boxing ring and the debate, that of keeping the opponent off balance and moving in reaction to an aggressive game of proactive attack and thrust, parry and blockade.

At the heart of the matter, a peculiarly Texan conservative philosophy that swift and sure retribution is the single greatest deterrent to vicious and violent behavior that leads to the murder of public officials, children, more than one person at a time, or committed for profit, with premeditation, or in retaliation.

The Texas track record speaks for itself. Since the U.S. Supreme Court allowed a reinstatement of the death penalty as other than cruel and unusual punishment in 1976 when it handed down Gregg v. Georgia, Texas has executed by lethal injection more than 480 convicted murderers, while the much more populous state of California has carried out the death penalty only 13 times.

Many legal scholars point out that not only is the entire top tier of Texas appeals courts decidedly Republican and politically conservative, but the United States 5th Circuit Court of Appeals, which sits at New Orleans, is much more Republican and conservative than that of the 9th Circuit at San Francisco. Republicans have occupied the Governor's office since the year 2000, when President George W. Bush unseated liberal Democrat Ann Richards in a landslide victory before going on to the White House.

Nearly the entire first day of evidence and testimony presented on Monday, October 22, concerned another crime, the shooting death of Emuel Lee Bowers, III, which occurred in April of 2010.

Prosecutors sought to get into the record evidence that the motive for the offense for which the first of the four defendants is facing the death penalty was retaliation for the earlier killing of another victim.

The defense team did not protest as to its relevance. Seasoned defense lawyers in close observation of the trial were of the united opinion that Mr. Hunt chooses not to cloud the issues or confuse the jurors with ill feelings over constant objections, preferring to remain calm and sanguine in the best interest of his client, whose life depends on a single impression yet to be created in the minds of the jury.

The question at hand, should they find “beyond a reasonable doubt” that Ricky Cummings caused the death of two human beings, is if he would present “a continuing threat to society” if he is allowed to live the remainder of his life behind bars without the possibility of parole.

Society, each juror was assured during the jury selection phase of the trial, includes corrections officials, civilian staff members, and other inmates of the Texas Department of Corrections Institutional Division.

To comply with the Supreme Court decision, Texas juries who recommend the death penalty are required to answer two questions in the jury charge prepared for the punishment phase of capital cases in exactly this way, and no other.

According to an on-line discussion of the matter: The first question is whether there exists a probability the defendant would commit criminal acts of violence that would constitute a "continuing threat to society". "Society" in this instance includes both inside and outside of prison; thus, a defendant who would constitute a threat to people inside of prison, such as correctional officers or other inmates, is eligible for the death penalty.

The second question is whether, taking into consideration the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there exists sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence.

If the person was convicted as a party, the third question asked is whether the defendant actually caused the death of the deceased, or did not actually cause the death of the deceased but intended to kill the deceased, or "anticipated" that a human life would be taken.

In order for a death sentence to be imposed, the jury must answer the first question 'Yes' and the second question 'No' (and, if convicted as a party, the third question 'Yes'). Otherwise the sentence is life in prison.

Russ Hunt laid back and waited to make his move until prosecutors elicited testimony from the first eye witness to testify that she saw the defendant at the scene of the murders, gun in hand, struggling to clear a jammed spent cartridge casing from its firing chamber as he confronted her face to face in pursuit of two wounded men who had fled into her apartment, bleeding.

Mr. Hunt began his cross examination of Nickoll Henry, who suffered a grazing bullet wound to her leg when a round from a high-powered assault weapon penetrated the brick wall of her apartment where she lay dozing on a couch, by quizzing her about her record of past convictions for theft by credit card and aggravated assault.

She is court-ordered to psychiatric treatment for paranoid schizophrenia and post traumatic stress disorder, as are her children. She neglected to testify as to her treatment for borderline personality disorder, he pointed out.

At that point, Mr. Jarrett, who was lead prosecutor at Dallas County and at ultra-conservative Williamson County, bounced out of his chair as if it had become red hot. He objected that the testimony was irrelevant and prohibited by the Texas Rules of Criminal Evidence.

After two brief hearings out of the presence of the jury, Judge Strother allowed the testimony into the record exclusive of the facts of Ms. Henry's mental diseases and the exact nature of the revocation of her probation status on suspended sentences for theft and assault.

Once testimony resumed, Mr. Jarrett asked on redirect, “Ms. Henry, how long have you been treated for blindness?”

Exasperated, she thought hard for a moment, then said she is not under treatment for blindness, that's she's never been blind, to the uproarious laughter of the gallery.

Even the judge smiled.

The only persons present in the courtroom who did not break a smile were jurors. They sat stone-faced, taking it all into consideration, knowing the task before them won't be made any easier by their laughter.

One would have been hard-pressed to even glance at the visage of Ricky Cummings, a man fighting to get a chance to live out the rest of his life behind bars.

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