Lawyers seek stay of execution
Posted on 05/07/2002 2:57:42 AM PDT by MeekOneGOP
Lawyers seek stay of execution
Killer had recanted confession; prosecutors stand by conviction
05/07/2002
There's no dispute that Brian Edward Davis confessed to fatally stabbing Michael Alan Foster.
He later recanted, saying that he had wanted to spare his wife from the death penalty.
Several years after Mr. Davis was convicted and sentenced to death, Tina McDonald, his wife until their divorce in 1996, confessed that she alone was responsible. Then she, too, recanted.
Mr. Davis, 33, is scheduled to be executed Tuesday evening. His attorneys were unable to persuade the Texas Court of Criminal Appeals or the Texas Board of Pardons and Paroles to delay the execution
They also have alleged that jury instructions in his case did not permit jurors to sufficiently consider mitigating circumstances when they set the punishment. His attorneys continue to seek the intervention of the 5th U.S. Circuit Court of Appeals or the U.S. Supreme Court.
Defense lawyers say that they don't want the wrong person executed for Mr. Foster's murder, and that Mr. Davis' role is, at the very least, unclear.
Prosecutors and law enforcement officials say they are convinced that, whatever Ms. McDonald may have done, Mr. Davis was appropriately convicted and sentenced for the 1991 stabbing death.
More than a decade after Mr. Foster's body was found, details about what happened remain murky.
Mr. Foster's body was found in his Humble apartment, stabbed 11 times. Neo-Nazi slogans and symbols were written on the walls and on his body. Red hair, the same color as Ms. McDonald's, was found in one of the dead man's hands. Handwriting samples from Ms. McDonald matched the neo-Nazi graffiti.
Humble detective Charles W. Smith, who investigated the murder, acknowledges that physical evidence from the victim's apartment points to Ms. McDonald, and that there is no physical evidence placing Mr. Davis there. Still, he is certain that Mr. Davis is culpable in the death and that his videotaped confession was valid.
Had DNA evidence been readily available at the time, Mr. Smith said, the hair in Mr. Foster's hand might have been firmly established as Ms. McDonald's, and she, too, could have faced a capital murder conviction.
Subsequently, DNA tests were neither requested by Mr. Davis' attorneys nor sought by prosecutors or police officials.
Fort Worth lawyer Scott Brown, an attorney representing Mr. Davis, said courts would consider DNA tests as proof that she was in the apartment. Mr. Davis' whereabouts would remain unresolved.
Mr. Davis and Ms. McDonald were first arrested for another crime a robbery in which the victim also was stabbed but survived. Mr. Smith said that case convinced him of Mr. Davis' guilt.
"I talked to their second victim," he said. "They stabbed him multiple times Brian stabbed him."
According to court documents, investigators met with Ms. McDonald and told her she could be put to death. Frightened, she communicated with Mr. Davis several times and expressed fear of being charged with capital murder.
Mr. Davis offered to confess in exchange for immunity for Ms. McDonald. In a writ, his attorneys alleged that the confession contradicts several key facts in the case.
"If you know the facts as they're laid out, the scientific facts, what he says on the [confession] video is off in some pretty important regards," Mr. Brown said.
On June 26, 1992, 10 days after Mr. Davis was sentenced to death, Ms. McDonald agreed to a plea bargain in connection with the robbery that had landed the couple in jail. She got a 40-year prison sentence and immunity from prosecution in Mr. Foster's death.
About two years ago, she began writing letters to Mr. Davis, expressing regret about his conviction. In an affidavit on Sept. 29, 2000, she wrote that she and Mr. Davis had left a nightclub with Mr. Foster. Mr. Davis, who was drunk, was dropped off at a motel, she said.
She said she then went to Mr. Foster's apartment and stabbed him, leaving with his black leather jacket and several music tapes, the affidavit said.
Mr. Brown said that at the time Ms. McDonald confessed, Mr. Davis did not have an execution date. "Nobody was pressuring her to confess to save him. ... Maybe her conscience just got to her."
Terese Buess, a Harris County assistant district attorney, is not troubled by Ms. McDonald's purported confession.
"They keep bringing that up," she said of Mr. Davis' attorneys. "I have an affidavit in my file in which she absolutely recanted."
Twelve jurors, she said, found Mr. Davis guilty beyond a reasonable doubt. "Since then I have not seen anything that would call that verdict into question."
Staff writer Diane Jennings contributed to this report.
E-mail etimms@dallasnews.com
Here's the skin head Choir Boy.............
Nope, not tonight! And exactly what I thought might happen.......
White supremacist spared from execution Tuesday
05/07/2002
HUNTSVILLE, Texas – About two hours before he was scheduled to be executed Tuesday, a Texas inmate was spared from lethal injection with a reprieve from the U.S. Supreme Court.
Brian Davis, 33, a parolee with a history of violence that began in grade school, was condemned for fatally stabbing a Houston-area man and inscribing the victim's body with a swastika and initials of a skinhead group.
Attorneys for Davis, however, argued in an 11th-hour appeal that he was mentally retarded.
The high court is considering a Virginia case that challenges the constitutionality of executing the mentally retarded and a ruling is expected before July.
The same issue was raised last week when the Supreme Court halted the lethal injection of Curtis Moore, a parolee convicted of killing three people in a drug-ripoff robbery some seven years ago in Fort Worth.
Like Moore's case, Tuesday's petition for the reprieve was filed to Justice Antonin Scalia, who referred it to the entire court. The reprieve will remain in effect indefinitely until the court decides whether to review Davis' case. If the court refuses to review the case, the reprieve automatically is canceled and a new execution date could be set.
Davis would have been the 11th Texas prisoner executed this year and the first of two set to die this week. Another execution is scheduled for Thursday.
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