January 31, 2003

Henry Dunn is a handsome young man, with a big genuine smile and an easy-going demeanor. On May 13, he spent what he thought would be the last full day of his life talking to friends and family from one of those prison phone booths we've all seen on TV.

Because it was the eve of his scheduled execution, Dunn was allowed eight hours of visitation, from 9 to 5. Normally, death row offenders spend 23 hours in their cells, relieved by one hour of supervised individual recreation.

By that Monday, the 28-year-old Dunn had picked out his last meal. A cheeseburger with everything, two roast beef sandwiches with cheese, and everything. A tray of fries. Twenty breaded shrimp. A bottle of ketchup. Three cokes, and a banana split.

A week or so later, he's laughing about it. Death row press liaison, Michelle Lyons shakes her head when she hears the menu. I'm laughing, too. How could you possibly eat all that? It's all a big joke now that Dunn won a last-minute stay of execution from the U.S. Court of Appeals for the Fifth Circuit. What's not discussed, of course, is the fact that a month from now, three months from now, or maybe a year from now, Henry Dunn may well have to select another final meal, and relive that final day. If that happens, chances are he won't be around to give interviews a week later.

And what was it really like to count the rest of your life in hours? Dunn is an articulate man, but when it comes to questions like that, his permanent smile recedes and he just says softly: "It's extremely stressful." He has spent seven years facing a lethal injection, the last three in the new death row in Livingston's Polunsky Unit (pictured below), 44 miles east of Huntsville.

Since January, when his execution was scheduled for May 14, he has been on "death watch," a special area monitored by guards every 20 minutes or half hour, night and day. He's happy now to be back on death row, in a cell with a view. "Now I get up, I can watch the sunrise. I can see the prison."

I liked Henry Dunn, one of a trio of men that abducted Nicholas West from a park in Tyler, took him out to a remote spot, tortured him, and killed him. West was 23 at the time, a good natured medical records clerk with a close circle of friends. His body was riddled with bullets, maybe a dozen or more. His finger was shot off. He was stripped naked, and killed with a bullet to the back of the head, possibly fired by Dunn. His roommate and best friend, Laurel Taber, says that he was so scared, he defecated on himself. After they killed him, the three men threw his body into a clay pit.

In that winter of 1993, West became the latest in a string of murdered gay men all over Texas. Prison sentences had been light. The gay panic defense had ruled. One Dallas judge had even admitted that he went easy on a killer, because the victims were homosexual. In Austin, Diane Hardy-Garcia had about a week or two under her belt as the new director of the Lesbian and Gay Rights Lobby of Texas, when she got a call from a community member in Tyler.

"You know, this young man's been murdered and no one's talking about it, no one's saying why, and I've heard the murderers brag about it," he told her. "I think they're going to get away with it." With no better options, Hardy-Garcia promised to drive to Tyler. "It was the only thing I could do. There was no one to call, so I went up there. And I remember it was the first time that I removed my rainbow stickers from the back of my car. Because I was scared."

At 29, Donald Aldrich was an ex-con with a decade on many of the young men like Dunn who followed his lead. Tyler's Bergfeld Park was not exactly a cruising spot, but functioned more as a gathering place in the absence of bars or other centers of community life. Aldrich told investigators that targeting the gay men in the park was a simple business decision of sorts. Gay men carried more money, were easier to rob than a convenience store, and were less likely to even report a crime. But that didn't explain why Aldrich and his entourage went further.

Before West's killing, Hardy-Garcia recalls that another man had escaped Aldrich and company by diving into a lake and keeping his head under water as bullets flew around him. Other witnesses suffered more than robbery as well. Indeed, Aldrich, who may have committed dozens of gay assaults of varying degrees, told police that he didn't approve of homosexuality for religious reasons.

With West, Aldrich feigned interest, picked him up, and eventually drove with him to a Montgomery Wards parking lot, where he was joined on this particular night by Dunn and David Ray McMillan, another teen. Yes, they robbed him. Matthew Shepard was robbed as well. But neither murder was a robbery gone awry. Why do you shoot a man's finger off? Why do you strip him naked? Take his shoes? Tie him to a rail or throw him in a clay pit? Beat him? Scare him? Torture him? Because, by his very nature, he turns on a switch that lights you up with rage. If Aldrich's younger friends had any shadow of conscience, they lost it in that glare. Aldrich is also on death row in Livingston's Polunsky Unit, but he has not exhausted his appeals.

Hardy-Garcia made the drive to Tyler several times. She talked to police. She talked to West's friends and other gay men. She talked to the New York Times, and to U.S.A. Today. She organized a rally, attended by 2,000 people, a remarkably high number. The one thing she couldn't do was to convince even one east Texas legislator to make a public condemnation she could read to the crowd. Back in her native state after working in New York City with the AIDS activists of the early '90s, Hardy Garcia had clearly returned to a different world. "That's when I knew what I was up against," she said. "I thought, 'Oh, my God. They won't even come out against this?'"

The cry for action did not fall entirely on deaf ears, however. The hammer of Texas justice fell hard on Aldrich and Dunn, while McMillan, who is white, drew a life sentence. Dunn, a 19-year-old African-American with no criminal record, was successfully painted by prosecutors as a potential repeat offender. Some of the evidence at sentencing included witnesses to previous unsolved crimes, who pointed sometimes-vague fingers at Dunn even though he had not been charged, let alone convicted of the past incidences. Technicalities, you say? Maybe. But maybe a sentence of death should require that all the procedures of the system be followed to a T. This does not happen in Texas.

You may know, perhaps, that Texas leads the nation in executions since the death penalty was revived by the Supreme Court in 1976. In these last 26 years, Virginia has put 85 people to death, and Missouri 57. Florida has killed 51, and Oklahoma 50. Seven states have executed an average of about one person per year, and six others have averaged half that. Fifteen states have executed six offenders or less, and the U.S. government has killed two.

But since 1976, 268 people have been executed in Texas. Texas doesn't just lead the nation, it laps the nation. In the next three months, eleven executions are scheduled in the U.S., ten of which will take place in Huntsville's death chamber. A few hours after I interviewed Henry Dunn, Johnny Martinez was put to death. Martinez, a gay man who also murdered at the age of 19, represented one of Dunn's longest friendships on death row. He was executed despite a plea from the family of the man he killed. As I write today, Tuesday, it is Napolean Beazley's turn to be euthanized for a crime he committed at the age of 17, arguably in violation of International Human Rights Law. Beazley will likely be dead by the time I finish this article. On Thursday the 30th, Stanley Baker's number comes up. Five more will die in June, and the parade will continue.

Too young to vote? Tough. Bad lawyers? Sorry. Henry Dunn's state-appointed appellate lawyer did not know how to write a brief, and didn't attend oral arguments before the Texas Court of Criminal Appeals in Dunn's case. Why? Because he had lost his temporary law license.

Dunn's next state-appointed lawyer appealed in federal court, and lost a summary judgment motion to the state. What did he do? Nothing. He missed the deadline to file an appeal to the Fifth Circuit. Then he missed the deadline to extend that time of appeal.

In a Kafkaesque journey through ever narrowing legal trails, Dunn filed his own motion to change counsel, and got a new lawyer to ask the federal court to grant the federal appeal on the basis of attorney negligence. The judge said no, insisting that Fifth Circuit precedent tied his hands on procedural grounds. Dunn's attorney, Michael Charlton of Houston, went back to the Fifth Circuit on an arcane point, winning the May 13 stay of execution while the appellate panel figures out what's what.

Henry Dunn isn't waiting for the Fifth Circuit to commute his sentence, or comment on his case. Dunn isn't even waiting for the judges to give him the chance to pursue his original aborted appeal. Dunn is simply waiting to find out some small point of order along the lines of: "Does a district court technically have the discretion and/or the obligation to restore an appeal under Fed.R.Civ.Pro.60(b)1 in the case of attorney negligence?" If the court rules yes, he must backtrack through the judicial maze before he even gets close to an appeal. If he ever gets an appeal, he must then win. The grand prize? Life in prison. The consolation prize? A few more sunrises out the prison window.

Laurel Taber has little sympathy for Henry Dunn. Her taxes are paying the $53.15 a day that it costs to keep him clothed, fed and jailed while his appeals continue. She would prefer to shell out the one-time fee of $86.08, which covers the three equally-lethal drugs that Texas uses to end a life. Her sympathies are reserved for West, the handsome son of missionary parents who she had met a couple of years before his death.

West, she said "was the kind of guy that no matter what was going on in his life he would be there for you. He would listen to you. He always cared about what you had to say. At the time, we had a pretty tight group of friends and he was probably the center of it and everybody loved him, especially the girls, the girls absolutely adored him. And he was pretty much the center of attention not because he tried to be, but because he just stood out. He just had that type of personality."

On that Tuesday evening in November of 1993, West, Taber and some other friends were hanging around in the apartment, when West borrowed a friend's truck to do an errand. It was payday, Taber recalls, and he wanted to deliver some money to his former landlord. Hours passed, and the group became worried. "It wasn't like him," said Taber, "because he's very responsible. He would never take someone's vehicle and not return it or not call." The next day, Taber went to West's job, and called his mother. That evening, after 24 hours had elapsed, his panicked friends called the police.

A couple of days later, Taber walked into her apartment and found her friends watching TV, where Nicholas West's body was being retrieved from the pit on Clay Hill. The news stunned the small community, where Taber says everyone knew everyone else, or at least knew each other's faces. Taber, who led off Hardy-Garcia's rally with her memories of West, said she was in denial for a long time. "It was unbelievable," she said, "that someone who was so upbeat and lively just wasn't around anymore."

As I write, Napoleon Beazley has about 3 1/2 hours left to live. He has already taken the drive from Livingston to Huntsville, over the long causeway that spans Lake Livingston, and past the Hilltop Ice House, where I stopped for a beer last week and thought about Johnny Martinez. At Huntsville, he is waiting in a cell near the death chamber, where he will be strapped down and injected at about six. It will take him about seven minutes to be declared dead. Beazley was interviewed for the Austin American Statesman by Alberta Phillips the other day. A thoughtful man, who regrets the cold blooded murder of 63-year-old family man John Luttig, he leaves a large family and lot of frustrated attorneys. "I'm not afraid to die," he told Phillips. "Do I want to? Hell, no."

And nor does Henry Dunn. Like Martinez, Beazley and the others, Dunn was a violent young man. Dropping out of high school, he was working at a Sonic restaurant during the day, hanging out with McMillan, Aldrich and other hoods at night. Nine years later, Dunn is a lay expert in criminal law, a smart, soft-spoken man who plays chess, helps his fellow inmates with legal questions and has studied the law surrounding his own case for years.

"One thing I have a problem with right now is that a court does not want to acknowledge that an attorney is ineffective," says Dunn. " [But] when your attorney fails to file an appeal to the federal appellate court, every issue in your case is procedurally barred. You cannot raise them again. You cannot take them to the Fifth Circuit. You cannot take them to the Supreme Court. They will not look at them. And the problem I have with that is that I did not waive my appeals. You're telling me that you're going to dismiss my appeals process because of a mistake? Because of something that a state-appointed attorney did, which is paid for by the state? He does not have to answer to the courts for anything that he does, but I suffer the consequences for it."

Who would argue with that? Well, amazingly, the state of Texas disagrees.

UPDATE: As the Triangle goes to press, the U.S. Supreme Court has ruled that a mentally ill lawyer, who failed to make a closing argument at the sentencing of Gary B. Cone, did not deprive Cone of constitutional rights.

The U.S. Court of Appeals for the Sixth Circuit had granted the double-murderer a petition for a writ of habeas corpus, based on what appears to be a violation of Cone's right to effective counsel. But the Court reversed that decision with a majority of 8-1.

According to Linda Greenhouse of the New York Times, the justices relied on one of their previous rulings, which sets out a two-pronged test for evaluating legal performance. First, the defense has to be horrendous, but second, the lawyer's incompetence has to have an impact on the result.

In the lone dissent, John Paul Stevens wrote that the Court should have followed one of their other precedents, which holds that a lawyer who "entirely fails to subject the prosecution's case to meaningful adversarial testing," does not meet the definition of effective counsel.

The Supreme Court had shelved the Texas challenge to the Fifth Circuit's sleeping lawyer decision in Burdine, pending the resolution of the Cone case. Greenhouse reports that the justices are likely to take action on this case shortly.

Last January, the Texas Court of Criminal Appeals ruled 6-3 that the right to a defense does not include the right to competent counsel. That was in the case of a lawyer who ignored obvious exculpatory evidence and did not know how to file a motion for habeas corpus, the constitutionally-based criminal appeals process. But that ruling really wasn't surprising. Six months ago, when the Fifth Circuit ruled that Calvin Burdine had the right to a new trial because his lawyer slept through the first one, Texas actually challenged the federal appellate decision.

The Burdine opinion, wrote Texas Solicitor General Julie Parsley, "will invite countless ineffective assistance claims based on any type of intermittent 'unconsciousness' by counsel during trial" by "…imaginative petitioners." According to the court reporter in Burdine's trial, his lawyer fell asleep "for long periods of time during the questioning of witnesses," once for "at least ten minutes."

But this type of representation is just fine in Texas, where once convicted by an emotional jury, many condemned men find themselves on an assembly line of routine court hearings, where mediocre public defenders go through the motions of an appeal and indifferent judges move the line along like shop foremen. It's no wonder Texas has performed well over a third of all the executions in the country since 1976. Here, we don't waste time and tax payer money with long drawn out legal hokey pokey. The man's guilty. Let's get on with it.

Even those who support the concept of capital punishment must think twice about killing a man, or a woman, without the benefit of a professional defense and a full appeal. They must have doubts about condemning teenagers to pay for their actions with their lives, whether they're 17 like Beazley or 19 like Dunn and Martinez. They must have qualms about the realization that there are no rich men or women on death row - ever. Or that death sentences are handed out disproportionately to blacks, and again disproportionately to blacks who kill whites. They must wonder when they hear about the DNA evidence that exonerates men who were just a few appeals away from losing their lives. As for those who oppose the death penalty, a confessed serial killer with Johnny Cochran for a lawyer still has the right to live, albeit forever behind bars.

All these stories and issues merge as I sit in the phone booth across from Henry Dunn. It's possible to be a stone killer at 19, and a nice guy at 28. He is both. But even if he were unpleasant and belligerent, I personally would not want to participate in his, or anyone's death. "I believe in the death penalty," says Laurel Taber. "That's what the law states should happen, and that's what should happen." I didn't know Nicholas West, so I think of the man in front of me whose life is on the line, rather than my best friend whose life was cut short.

Many others believe that the death penalty is profoundly wrong, including the hundred or so protesters who demonstrated outside the Governor's mansion this evening as Napoleon Beazley received his injection. And even in the GLBT community, where fighting hate crimes like the murder of Nicholas West is a high priority, putting a man to death is not generally considered a victory.

"The point of our hate crime law," says Hardy-Garcia, "was to prevent hate crimes and focus on intervention by stiffening penalties at a lesser stage. We know that hate crimes escalate. The gang that Henry Dunn was involved in, the group of young people he was hanging around started out with little petty things, terrorizing people, and you eventually don't get as high off that. You escalate. And perhaps if they had been stopped earlier, and would have been punished, Nicholas would still be alive."

Now that would be a victory, and not just for Nicholas West. What Dunn misses most is "touching someone." The human touch of his parents and friends that he hasn't felt for years. Does he regret what happened that night? He looks down, and replies in a tone I can't capture in print:

"Oh, yeah."

Canadian Coalition to Abolish the Death Penalty