GIST: "Unless the courts or Gov.
Greg Abbott step in to stop it, Texas will execute Terry Edwards on
Thursday. This would be a reprehensible miscarriage of justice. Edwards’
conviction for capital murder was won at least in part due to a faulty
forensic argument pushed by the prosecution and what appears to be a
racially biased and likely unconstitutional jury-selection process. If
this execution proceeds as planned, it would be an irrevocable stain on a
state justice system that leads the nation in
wrongful convictions. Terry Edwards is not a saint. He and his cousin Kirk Edwards
were responsible for the 2002 homicides of Tommy Walker and Mickell
Goodwin. But while Terry Edwards took part in the burglary that led to
the murder of two of his former co-workers at a Subway restaurant in the
Dallas suburbs, it’s less clear that he was the triggerman. In a series
of filings earlier this month, Edwards’ attorneys requested that his
execution be stayed and a new
writ of habeas corpus be considered. It will be up to the 5
th
Circuit Court of Appeals to decide whether new evidence ought to be
considered at the federal level, while the Texas Court of Criminal
Appeals is also considering whether to stay the execution. The appeal makes for damning reading, dismantling key
portions of the case against Terry Edwards. The principal evidentiary
problem with Edwards’ case surrounds the use of forensic testimony about
gunshot residue. Despite the shooting having occurred at point-blank
range, Edwards had no blood on his body, no gunshot residue on his
hands, and none of the victim’s DNA on his person when he was picked up
by police immediately after the crime occurred. He was tested for
gunshot residue within an hour of his arrest, according to the appeal. A state forensic analyst named Vicki Hall tested Edwards’
hands for gunshot residue and found it wasn’t there. Given that negative
result, the defense called Hall to testify at Edwards’ trial; she was
the defense’s only witness during the guilt-innocence phase. On
cross-examination, though, Hall explained away her test results,
testifying that Edwards might have either sweated away or wiped off
“some of that residue.” Hall had also indicated in her forensics report
that one of the three elements that would have been found in the gunshot
residue was present on Edwards. In closing arguments, prosecutor Thomas
D’Amore used Hall’s testimony to argue that the presence of that one
element—the relatively commonplace barium—proved that gunshot residue
had been present, and that Edwards had somehow wiped off the other two
chemicals. In Edwards’ appeal, a former FBI agent writes that this wipe theory is “scientifically unsupportable”: The three chemicals, barium, antimony, and lead, exist in
the same particle, or in particles that contain two of the three. If you
remove any of the components they would be removed linearly. It does
not occur that just one of the components is removed; the components all
increase or decrease together. It is not possible that a defendant who
had gunshot residue on his hands could simply wipe two of the three
components off of his hands and not the third. Or, as one of Edwards’ current attorneys John Mills put it
to me, “It is scientifically impossible to remove trace elements of two
chemicals and not one.” According to Mills, there is reason to believe gunshot
residue would have been present on the shooter in the immediate
aftermath of the attack. Hall, the forensic analyst, ran a trace
analysis of the victim Mickell Goodwin and found all three elements on
her right hand near a defensive wound. That result is “important for two
reasons,” Mills told me. “It does demonstrate that the gun that was
used does emit a relatively high volume of gunshot residue when fired,
and it heightens the significance of the absence of gunshot residue on
Mr. Edwards.” Hall and the state, however, failed to disclose this test
to Edwards’ lawyers in advance of the trial, and his new legal team
didn’t uncover this fact until very recently. At trial, though, Hall did
testify about the negative results from tests conducted on the hands of
the other victim, Tommy Walker. D’Amore, meanwhile, has had three previous convictions
overturned. In one of those cases, Hall testified that the presence of
two of three chemicals on the hands of defendant Richard Miles indicated
that he had “fir[ed] a weapon or handl[ed] a very dirty weapon.” Miles
was convicted, but the disclosure that Hall’s trace-evidence testimony
was faulty—a fact she later admitted herself—
helped exonerate him years later.
Edwards’ attorneys argue in his appeal that “Hall’s testimony and the
direct examination by D’Amore in the Miles case were dishonest in a
manner that reflects not only collusion and fraud, but also bears
substantial similarities to the erroneous forensic testimony that the
two presented at Mr. Edwards’s trial.” (Mills pointed out to me that in
D’Amore’s closing argument about the hand-wiping in Edwards’ case, he
said specifically, “We’ve dealt with this situation before.”) Whether or not Terry Edwards is guilty or innocent,
it would be criminal to deny his attorneys the time to investigate his
case further.........The most damning portion of the appeal, though, has to do with jury selection. Back in May, the Supreme Court
ruled 7-1 in the case
Foster v. Chatman
that Georgia prosecutors had used a blatantly unconstitutional practice
to pick the jury in a murder trial. Prosecutors in that case had
written a
B next to the name of every black juror, then used
peremptory challenges—which attorneys can use to strike jurors without
explaining why—to remove some of those black men and women from the pool
and select an all-white jury, which ultimately convicted a black
defendant of murder. The court found that these actions violated the
Equal Protection Clause of the 14
th Amendment. Nearly all of the jury information in the Terry Edwards
case—including the vast majority of jury questionnaires—has gone
missing. But Edwards’ defense team did find a “strike list apparently
maintained” by prosecutors that includes “a handwritten, encircled ‘B’ ”
next to 32 of the jurors’ names. “When we saw it,
Foster vs. Chatman had just come
down and we couldn’t believe the similarity,” Mills told me. According
to the limited information the appellate team has in its possession, at
least 30 black people were struck from the jury, which was ultimately
all white with a single Hispanic alternate. Two of these potential black
jurors were struck for cause, while the other 28 were removed thanks to
an agreement made by the defense team and prosecution as part of a
jury-strike bartering system used in Texas at the time. In this case, it
seems possible that this trade allowed the prosecution to get rid of
all of the black jurors without having to use peremptory challenges.
(What the defense attorneys got out of this exchange is anyone’s guess.)
If it can be proved that the “B” in the marking means
black, the courts would likely have to clarify whether this scheme was as unconstitutional as the peremptory-challenge one. “
Foster v. Chatman
could greatly bolster the defendant’s [unconstitutional jury selection]
claim, provided there is some indication that ‘B’ signifies ‘black,’ ”
Daniel S. Medwed, a professor at Northeastern University School of Law who focuses on wrongful convictions, told me.".........Edwards’ attorneys believe that if the latest stay request
is granted, they might be able to find those missing questionnaires or
track down the jurors to determine whether or not “B” meant
black.
Whether or not Terry Edwards is guilty or innocent of pulling the
trigger in those 2002 homicides, it would be criminal to deny Edwards’
attorneys the time to investigate this basic constitutional question. If
Edwards doesn’t get that stay, he’ll be executed by the state of Texas
on Thursday. There would be no rectifying that injustice.""
