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Tony Egbuna Ford |
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Petition on his case |
Petizione sul suo caso |
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CLAIM NINE APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO CHALLENGE THE DISMISSAL FOR CAUSE OF PROSPECTIVE JUROR JOHNSON.
A. The Basis for the Claim Venireperson Tita Casundra Riley Johnson was questioned by the state on voir dire with the apparent purpose of eliminating her from consideration as a juror. The prosecutor asked rambling confusing questions in an attempt to narrow an area for attack. The court ultimately sustained the attack, but it was not supported by anything Ms. Johnson said or did. First, Ms. Mungerson, the lead prosecutor, questioned Ms. Johnson about her brother-in-law who had been in prison for robbery. [SF Vol. IV p. 1186]. Ms. Johnson was not very close to her brother-in-law and thought he was wrong, got help in jail, and rehabilitated himself. Next, Ms. Mungerson carried on a monologue for over six pages explaining the two stages of trial and the two anticipated special issues interrupted only briefly by Ms. Johnson saying she did not understand the process. When finally allowed to explain her response to a question in the jury questionnaire as to how she feels about capital punishment, Ms. Johnson said, I know I put on my paper I'm not for it, I'm not against it. I think that you really have to prove what a person does to want to take that person's life, too. That's how I feel. I don't - it has to be proven to me. I don't know. I'm not really for it, I'm not against it. It depends on what the person does, how he does it, what state of mind he was, that kind of stuff.
[SF Vol. IV p. 1195]. Ms. Mungerson asked if there was something about the death penalty that Ms. Johnson thought was wrong. In response, Ms. Johnson said, I kind of believe a little religiously about that.... I'm like - that's like taking a person's life, too. To me it's not right, either. That's how I feel.... But then I feel another way... If a person is just constantly taking people's lives, then I feel, too, why should he live, too? So I kind of like feel both ways. I don't know.
[SF Vol. IV p. 1196-1197]. Ms. Mungerson tried to tie her down to a multiple killing situation, when Ms. Johnson responded, Or just - yeah, just doing it to be - to be - I don't know. Just taking a person's life just to be doing it. You know, keep taking people's lives just to be doing it. I don't think that's right, either. I don't think the person deserves to live his life fully, either. But then, who are we to say that? I feel that's a judgment of God, you know. I don't know, that's how I feel.
[SF Vol. IV p. 1197]. Ms. Mungerson again carried on for a page and one-half about what capital murder is apparently with the intent of seeing if Ms. Johnson thought only a multiple killing situation would warrant a death sentence. At the end, Ms. Mungerson asked Ms. Johnson with that explanation what she thinks about capital punishment and Ms. Johnson said, I just feel, okay, I just feel that if I was going to - if I was going to say put someone to death, it would have to just really be proven, I guess, to me. It would really have to proven that person is a terrible person to society, that he couldn't get help, that he just was plain a terrible person. Other than that, I wouldn't want to put him to death. You know, I wouldn't. I would say people can get help. That's how I feel.
[SF Vol. IV p. 1200-1201]. Ms. Johnson expressed her belief that people can be rehabilitated. But her repeated assertions that the person would have to "do it over and over again" showed more of Ms. Johnson's belief that the system can rehabilitate rather than her bias against giving the death penalty for a first time capital killer. Ms. Mungerson never asked that question. In an attempt to nail Ms. Johnson down on this point, Ms. Mungerson finally asked the right question. Ms. Mungerson asked: You've indicated that you're a religious person and you believe in God and that God should be making these judgment calls. Would your views, as you've expressed them here today, would your views about the death penalty prevent or substantially impair the performance of your duty as a juror in accordance with your instructions and your juror's oath to render a true verdict according to the law and the evidence?
[SF Vol. IV p. 1203]. Ms. Johnson responded, "Would I be able to hear all the evidence and be fair about it?" Id. Mrs. Mungerson replied, "Well, this question asks you, would the feelings that you have about the death penalty prevent or substantially impair your ability to perform as a juror?" Id. To which Ms. Johnson said, "I don't think so. I don't think that it would impair me, but I believe one way, you know, and I don't know how that would be, me believing one way and hearing something else. I guess it really depends on what the - how - what the person did. I really - it does." Ms. Johnson said it would have to be something "really awful." Id. Ms. Johnson said she thought that people should be punished for things they do wrong. But, to just put a person to death, "it would really have to be proven. It would really have to be something, really, really bad." [SF Vol. IV p. 1204]. Ms. Johnson said she did not always believe in turning the other cheek, but that she had a serious reservation about the death penalty as the appropriate punishment in a particular situation. [SF Vol. IV p. 1205]. Ms. Mungerson then went into a long narrative about lesser offenses. [SF Vol. IV pp. 1205-1207]. At the end, she asked Ms. Johnson if she could assess a five year probation for murder. When Ms. Johnson hesitated, Ms. Mungerson challenged for cause. Mr. Anderson then questioned Ms. Johnson for the defense. He asked, "[T]here are some circumstances where you can contemplate wherein the death penalty would be the appropriate sentence for an individual. There are some circumstances. Am I correct?" [SF Vol. IV p. 1211]. Ms. Johnson responded, "Some." Id. Ms. Johnson agreed that the burden of proof standard was fair, and that if it were proven that a person was guilty of a crime she would convict. She would be able to follow the law. [SF Vol. IV p. 1212]. She would just simply require "sufficient proof." [SF Vol. IV p. 1214]. On questions as to future dangerousness Ms. Johnson once again said the State would have to prove it. [SF Vol. IV p. 1216]. Mr. Anderson asked, "They must convince you by beyond a reasonable doubt that the person would constitute a continuing threat to society. And if they were able to prove that to you, could you and would you answer yes to that question [Special Issue #1]." Ms. Johnson answered, "Yes." [SF Vol. IV p. 1218]. And on the mitigation issue, she was asked if she could follow the law and she answered "yes." [SF Vol. IV p. 1219]. On the issue of the lesser included offenses, Mr. Anderson asked Ms. Johnson to search her memory for fact situations where she could consider assessing five years' probation after one has been convicted of murder. To this Ms. Johnson replied, "Well, to answer that, wouldn't I have to know what someone did?" She would "have to hear the facts." [SF Vol. IV p. 1222]. Exasperated by the endless questions over areas in which she had no experience, Ms. Johnson finally said, "My feelings are if you do something wrong, then you should be punished for it. But it depends on why you did it, for what reason, and - ." And finally, when asked the right question, Ms. Johnson agreed that she could under the right set of circumstances consider five years' probation, but always, "Depending on the circumstances." [SF Vol. IV p. 1225]. Ms. Mungerson then challenged Ms. Johnson for cause. In a cryptic ruling, the court granted the challenge, explaining only that he was "sustaining the state's challenge for cause under 35.16B-3 and some consideration to B-1." [SF Vol. IV p. 1229].1 Appellate counsel did not challenge this ruling on appeal. That decision was ineffective, for Ms. Johnson never once indicated that she could not follow every aspect of the law that was explained to her. She did have some "conscientious scruples" against imposing the death penalty but always reiterated that she could follow the law and impose death if a sufficient case was made for it. Her standard of "sufficiency" was high but not insurmountable or allocated only to the extraordinary case. She was not excludable for cause under Wainwright v. Witt, 469 U.S. 412, 425 (1985), even when appropriate deference is given to the trial judge as factfinder. Id. at 426, 429. In failing to raise a non-frivolous claim on direct appeal, for which there was a reasonable probability of success on appeal, appellate counsel deprived Mr. Ford of effective assistance of counsel. B. State Court Proceedings
This claim was presented as Claim 8 in the Amended Original Application for Writ of Habeas Corpus in the state courts. The state courts rejected the claim on the merits.
1Article 35.16(b) of the Texas Code of Criminal Procedure states: A challenge for cause may be made by the State for any of the following reasons: 1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty; 2. That he is related within the third degree of consanguinity or affinity, as determined under Article 5996h, Revised Statutes, to the defendant; and 3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment. |