Update: First Texas Execution Done With New Drug Protocol

UPDATE: Convicted murderer Cary Kerr tonight became the first Texas inmate to be executed with the state's new three-drug lethal injection cocktail, including pentobarbital.The U.S. Supreme Court today denied Kerr's request for a stay. 

The Tribune's original story about Kerr's case is below.

Less than a month before his scheduled execution, Cary Kerr had no attorney. And the ones he had had up to that point, he argues, didn’t do him much good. Now, he’s asking the U.S. Supreme Court to stop his execution — scheduled for tonight — and allow him another opportunity to argue for his life.

“This was a life history that wasn’t told,” says Brad Levenson, Kerr’s new attorney. “No one has done this investigation.”

Levenson is director of the state’s new Office of Capital Writs. Created by lawmakers in 2009 to provide better representation for people on death row who can't afford to pay their own lawyers to challenge their sentences, the office opened in September 2010. Kerr’s case is the first the office has taken with an impending execution date. And prophetically, the appellate lawyer whose previous work Kerr lambasts is the same one who helped spur lawmakers to create the office of writs in the first place.

Kerr was sentenced to death in 2003 for the rape and murder of Pamela Horton. He’s not arguing that he didn’t strangle the woman and leave her badly beaten corpse in the middle of the street in a Fort Worth suburb. Rather, Kerr says, his attorneys never gave the jury a chance to hear about his abusive upbringing and mental problems, a background he believes could have persuaded jurors or appellate courts to issue a sentence other than death.

Lawyers for Texas Attorney General Greg Abbott argue, however, that Kerr’s original trial lawyer did present jurors with mitigating evidence. And, they say, the courts have not recognized that death row inmates have a constitutional right to effective appellate attorneys. Even if Kerr were entitled to such a right, the state’s lawyers say his unfortunate life story likely would not have changed the minds of jurors or the decisions of other courts, because he had a long history of physically and sexually abusing women.

“The instant crime was similarly brutal and kept in pattern with Kerr’s history of violence and misogyny,” state lawyers wrote.

It took a Tarrant County jury in March 2003 six hours to decide Kerr had sexually assaulted Horton and killed her, and another 45 minutes to sentence him to death. But in his pleading to the U.S. Supreme Court, Levenson argued that Kerr’s original trial lawyers conducted only a cursory investigation of his background, preparing witnesses to testify that, up until the crime, he was generally a good guy. Defense lawyers put Kerr’s stepsister and his father on the stand, but they didn’t ask much about Kerr’s formative years.

After he was sentenced, Richard Alley was appointed as Kerr’s state habeas corpus attorney. The main goal of habeas proceedings is to uncover new evidence that either proves the inmate’s innocence or shows a constitutional violation during trial proceedings. Alley, though, didn’t do any investigating, Kerr contends. He never even retrieved Kerr’s case file. When he drafted the habeas pleading, he copied and pasted from older filings in Kerr’s case and others he had handled. Kerr’s first name was misspelled on the cover page. One section of the pleading compared Horton’s murder to “any other shooting death.” Horton was strangled. The pleading said Kerr’s youth should be a mitigating factor, but Kerr was 39 at the time of his trial. The petition was quickly denied.

Levenson argues that Alley should never have been appointed to handle Kerr’s case because the State Bar of Texas had twice disciplined him for unethical behavior, including using false evidence and making false statements. In 2006 — shortly after an investigative report from the Austin American-Statesman about the shoddy work of Alley and other death row lawyers — he was removed from the Texas Court of Criminal Appeals list of capital appointments because of his work on Kerr’s case and others. And reports about Alley’s work and the troubled capital appellate system were a major factor that led lawmakers to establish the office of writs in 2009.

Levenson found out about Kerr from other lawyers who told him the death row inmate didn’t have an attorney even though he was about to be executed. Despite having little time for investigation and a small staff, Levenson says, on April 6, he took on Kerr’s case and delved into his past. “What normally takes a year and a half, we did in two and a half weeks,” he says. They interviewed family members, including Kerr’s sister and stepsister and his biological mother, and talked to Kerr’s friends and neighbors. They reviewed school and jail records.

The story they found, Levenson says, was disturbing. Kerr was born to alcoholic parents. His mother left when he was young, and he was raised mostly by his sister, who was only a couple of years his senior. His youth was riddled with poverty, and the children often went hungry. Kerr’s father and grandfather introduced him to alcohol when he was about 10. He was sexually assaulted twice, once at age 5 and again at 12. His stepmother openly disdained him and routinely slapped him in the face in public. By the time Kerr was a teenager, his father and stepmother repeatedly kicked him out of the house; at one point he lived in an old car under a neighbor’s carport.

“This is a pretty sad and traumatic childhood, and I think a jury should hear all the evidence before they make a decision,” Levenson says. “We found this in two-and-a-half weeks. What could competent habeas counsel have found if they had worked for much longer?”

The primary question in the Kerr case, however, is whether he even had a right to effective habeas counsel. So far, the courts have ruled the U.S. Constitution makes no such guarantee. Recent action by the U.S. Supreme Court have fueled hopes among defense lawyers that the nation’s top court might be ready to take up that issue. Last month, the court stayed the execution of Texas death row inmate Cleve Foster, who has made similar ineffective counsel claims. The court also stayed the execution of Daniel Cook in Arizona, another case that raises questions about ineffective counsel. “For years, people have wanted that question answered,” Levenson says.

But attorneys for the Texas AG's office say the question of competent habeas counsel is irrelevant in Kerr’s case not only because the courts have not ruled the right exists, but because it wouldn’t have affected his sentence. During trial, prosecutors presented witnesses who testified that Kerr beat two previous wives, that he beat, raped and sodomized a girlfriend, and that he pleaded guilty to sexually assaulting a neighbor.

“There is simply no reasonable likelihood that the outcome of the proceeding would have been any different in this case,” the attorneys wrote.

If the court declines Kerr’s petition, he is scheduled for execution at 6 p.m. His lethal injection would be the first in Texas carried out with pentobarbital in the three-drug cocktail. The Texas Department of Criminal Justice, like other corrections departments in death penalty states, decided to switch to pentobarbital earlier this year after the only U.S. manufacturer of sodium thiopental stopped selling that drug. Lawyers for death row inmate Cleve Foster are challenging the process state officials used to change drugs, and that case is pending in state court. Levenson says Kerr is not challenging the use of the new drug.