Legal system's lethal execution by gibberish

by C.C. Simmons

On Aug. 24, 2006, at Huntsville, the state of Texas executed Justin Chaz Fuller for the 1997 robbery and fatal shooting of 21-year-old Donald Whittington III of Tyler. Fuller's execution would be little more than an unremarkable up-tick of the body count at the busiest death chamber in the nation if it weren't for the remarkable post-conviction brief filed by his court-appointed counsel.

Texas state law provides that death row prisoners receive "competent counsel" for their post-conviction appeals and writs of habeas corpus. For indigent prisoners, the Court of Criminal Appeals, the highest criminal court in Texas, decides which lawyers are competent to handle death penalty cases, compiles a list, and then relies on trial judges to make individual appointments from the "approved" list. Counsel is thus appointed for indigent prisoners on death row and paid with state funds. Those convicts who can afford to pay for outside counsel are spared the indignity and uncertainty of relying on court-appointed counsel.

In May 2001, Texas attorney Toby C. Wilkinson of Greenville was appointed to work for Fuller. Wilkinson prepared and filed a 111-page post-conviction petition for writ of habeas corpus, which, on first impression, appeared to be appropriate. On closer examination,  Wilkinson's petition was found to be unintelligible.

On page three, for example, the petition began quoting long sections of Fuller's trial testimony without clearly explaining their relevance. Half of page five repeats the exact same sections quoted a page earlier. On page six, similar repetition begins. The numbering of the paragraphs in the petition prepared by Wilkinson does not follow a logical sequence. Some paragraphs can only be described as gibberish. For example: "i &tilde hus, we diseeni no ab &tilde tse of discretion in h i &tilde coult &tilde s denial."

Part of Fuller's petition embodies wording copied from an appeal prepared and filed by Wilkinson seven years earlier for a different client, Henry Earl Dunn. Inexplicably Fuller's petition complains of improper testing of blood found on a gun used in Dunn's crime, an offense which was wholly unrelated to Fuller's case. Predictably Fuller's petition was denied and he moved one step closer to death by lethal injection. After the court rejected Fuller's petition, attorney Don Bailey was appointed to replace Wilkinson. In a later brief filed by Bailey, he wrote that Wilkinson's petition "should have been submitted on a Big Chief Tablet using an eight-count box of Crayolas." Wilkinson was paid $18,000 from state funds to prepare and file Fuller's petition.

Edward Marty, a former assistant district attorney in Smith County (Tyler), said he was "disturbed" by the quality of Wilkinson's petition. Marty pointed out that Wilkinson was given an opportunity for a hearing "to make up any differences and clear up anything he wanted to." There is no indication Wilkinson did so.

A short time later, a Texas District Court judge in Hopkins County (Sulphur Springs) appointed Wilkinson to prepare and file a petition for a writ of habeas corpus for Daniel Clate Acker, an indigent convicted prisoner on death row. Wilkinson's brief for Acker devotes 13 pages to naming virtually every document ever filed in Acker's case. The brief goes on to recite five claims that are almost identical to claims set out in Fuller's case, a totally unrelated crime.

The next 24 pages were apparently copied from client letters which seldom cite applicable case law and sometimes lapse into first-person narrative. For example, Claim 36 of Acker's petition states: "I'm just about out of carbon paper so before I run out I want to try and list everything that was added to and took from me to convict me on the next page. Then as soon as I get some more typing supplies I have about 30 more errors I want to tell you about and have brought up in my appeal." Wilkinson was paid another $18,000 to prepare and file Acker's brief.

When asked, Sharon Keller, the Presiding Judge of the Court of Criminal Appeals, said she couldn't comment on individual cases. She emphasized that her court carefully screens the attorneys who are selected to handle death penalty appeals. One wonders about the screening criteria and if, perhaps, demonstrably sub-competent attorneys are purposely selected to handle death penalty appeals. Perhaps Fuller wondered about that too.