Dead man waiting

After a decade on death row, Andre Lewis grasps at straws Andre Lewis is a dead man waiting.

Ellis insists that had the jury known of such a deal--if it did indeed exist, and attorneys from the Dallas County District Attorney's Office claim it didn't--they likely would have "taken his testimony with a high degree of skepticism."

"We could at least show that his testimony was possibly perjured," Ellis says. "The jury wasn't even told about this deal. It is true that Andre is on video doing this, but Willie also testified in the sentencing phase that Andre had some involvement in another robbery in Mesquite, and that was a lie. Willie sold Andre down the river, and this casts a cloud not only on the death sentence Andre got, but the trial itself."

Berry has extensive criminal files with the Texas Department of Public Safety, the Dallas County Sheriff's Department, the Dallas Police Department, and the FBI, and he was the only witness at the time of Lewis' trial who could place Lewis at the scene. This was especially important for the prosecution since several eyewitnesses at the scene of the crime originally picked another man out of a police lineup.

At the time of Lewis' arrest, Berry was sitting in the Van Zandt County jail on aggravated robbery charges. While in custody, Berry informed officials that he knew who was responsible for the Carrollton shooting: his nephew. Berry, however, said he would not cooperate with the District Attorney until Kinne made him a deal concerning his aggravated robbery charges and a possible murder charge in connection with the Carrollton robbery.

Kinne and Gene Lipe, a criminal investigator for the Van Zandt County District Attorney's Office, claim there was only "the possibility of a deal," but that none was struck in exchange for Berry's testimony. Ellis, though, insists he has uncovered notes in some of Berry's files that hint otherwise.

On July 16, 1987, a little more than a month after Lewis' trial, Berry had the aggravated robbery charges dropped in Van Zandt County. According to court documents, there was a note in Berry's file that read: "case dismissed in return for trial testimony in capital murder case in Dallas." Twelve days later, Ellis says, Dallas County Assistant District Attorney Paul Macaluso--who was the chief prosecutor in Lewis' case, and is now with the U.S. Attorney General's Office--recommended that all charges in connection with the Carrollton case against Willie Berry be dropped.

In addition, Berry had also received 99 years on another aggravated robbery conviction in Dallas County in 1985, but the sentence was knocked down to 25 years after Lewis' trial. For that crime, Berry is up for parole in October of this year.

Ellis says the Dallas County District Attorney's Office will not let him look at the prosecution's files for Lewis or Berry's cases. In an affidavit filed with the court, Ellis says he was told by Assistant District Attorney Don Davis that all files relating to the Lewis and Berry cases were lost.

Kinne confirms that Lewis and Berry's files are indeed missing, though he doesn't know why. "If I knew how they were missing," he says, "then I'd know how to find them."

He also maintains he made no deals with Berry in exchange for his testimony, and that he knows of no deals being struck with Macaluso or anyone else in the District Attorney's Office at the time.

"I don't know why they would have [struck a deal]," he says. "I didn't try the case, and if we say there were no deals made, there were no deals made. We're not in the habit of putting on perjured testimony."

In one respect, Andre Lewis is a lucky man. In 1993, his case--as well as the cases of every other Texas death-row inmate--was being handled by the Texas Resource Center, a group of pro bono lawyers and investigators who guaranteed that every inmate had his or her right to a federal appeals process after a death sentence was imposed.

In September of 1995, the federal government cut off funds for the resource centers around the country as a small part of the new budget-cutting by the Republican Congress. The Texas Resource Center no longer exists, and though it is difficult to tell exactly how many death-row inmates have counsel to represent them at the federal level, here is one telling statistic: One of Lewis' Texas Resource Center lawyers, Liz Cohen, once oversaw the handling of about 50 death-row cases. Now a lawyer in private practice in Austin, she handles the cases of only three men sentenced to die.

"Some of the lawyers are taking them as court-appointed cases, but most of the lawyers no longer handle death-row cases," Cohen says. "Some of the inmates have been lucky enough to have stayed with attorneys, but so many others have fallen by the wayside."

Not Lewis. Ellis is still trying to stave off the very likely prospect Lewis will die sometime soon, and he's trying to do it long-distance. He visits Lewis twice a year and sends occasional word to his Aunt Ruth about his condition, but Ellis and Lewis know the score. In nine years, the Texas Resource Center won only one reversal on a death sentence.

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