Dead man waiting

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

Three years ago this Sunday, Lewis was secured in a special cell reserved for those about to receive the deadly cocktail of muscle relaxants and surgical anaesthesia that will kill them. Lewis, who was sentenced to death on June 2, 1987, by a Dallas jury for killing a young man during a Carrollton convenience store holdup gone awry, was on what they call "death watch" down in Huntsville. He was waiting to become the 55th life taken by the state of Texas since the death penalty had been reinstated here in 1976.

"I had a lot of things on my mind," Lewis recalled of the hours before he was set to die on February 18, 1993. "I thought, 'Am I going to get to see my family or friends? How will it be on the other side, where I'm going?'" Lewis made the comments in a Reuters report for European television about Texas being the United States' premier executioner: Besides Lewis, 400 other men are waiting to die.

Lewis, who is now 29 years old, was granted a stay of execution by federal judge Joe Fish just seven hours before he was to die ("Who we're killing," Observer, February 11, 1993). Since then, he has done what most death-row inmates do in Texas--waited, filed appeals, and found religion.

Lewis' lawyer, Richard Ellis, has filed motions with the federal courts seeking an evidentiary hearing that will allow the courts to hear mitigating circumstances about Andre's tragic, violent young life. He wants the court to hear, for the first time, about the savage beatings Lewis experienced at the hands of his father and about his exposure to lead-tainted West Dallas soil that may have caused violence-inducing mental defects.

"Andre didn't have a chance at the sentencing hearing," Ellis says. "The jury was not made aware of the plethora of mitigating circumstances at the time of sentencing, and what we hope to do is show the federal court that this cast a giant cloud on the fairness of the whole sentencing hearing."

Lewis' guilt is not in doubt. A surveillance camera recorded the act. On November 20, 1985, Lewis cocked a pistol and fired a bullet into convenience-store clerk Matt McKay's gut. McKay clung to life until December 9, 1985, when McKay's parents asked doctors at Parkland to turn off the life-support machines.

For the past three years, Lewis' lawyers have all insisted Lewis was a victim long before he was a criminal. Medical documents and affidavits filed with the court document the severe abuse--sexual, mental, and physical--that Lewis and his brothers and sisters received as children at the hands of their father, a vicious junkie named Odell Lewis. Odell died in September 1994 from cancer and syphilis, but the scars he left behind on his children have yet to heal.

Andre once watched as Odell shot Andre's mother, Betty Mae, in the stomach and leg. On other occasions, Odell stabbed his wife and beat her with a baseball bat. Betty Mae, whose body finally gave out in 1991, had her revenge: She once slit open Odell's stomach with a kitchen knife, then told Andre to call an ambulance.

The various lawyers who have handled Andre Lewis' appeals all agree that if the jury members had heard the facts of his young life from experts--mitigating circumstances that often evoke sympathy and mercy from juries--they never would have sentenced the young man to die. At least, that's the crux of the documents Ellis has been filing in U.S. District Court for the past three years.

Lewis has even become something of a poster boy for experts trying to link lead poisoning to mental deficiency and criminal behavior. In December 1993, Dallas Independent School District psychologist Richard Peck spent several hours with Lewis, studying his school records, and talking with family members. Peck determined that Lewis' long-term exposure to lead in the George Loving Housing Project soil--Peck estimated that from 1972 to 1974, Lewis' body had absorbed more than 20 times the Environmental Protection Agency's allowed amount of lead--had "serious consequences in his early development."

In 1994, law professor Deborah Denno of Fordham University in New York wrote an article for the American Judicial Criminal Law journal in which she uses Peck's research to establish a "nexus between Lewis' disadvantaged background and his lack of culpability at the time he committed the crime."

"Lewis' background and cognitive defects, in addition to his intoxicated condition at the time of the crime," wrote Denno, "contributed to the kind of 'damaged personality' required by the Texas court...so that the defendant in that cause could excuse his criminal behavior."

Ellis, who is handling the case long-distance from San Francisco, also believes Lewis' conviction is invalid because the Dallas County District Attorney's Office violated his client's constitutional rights. In documents filed with the court, Ellis alleges that Assistant Dallas County District Attorney Norm Kinne cut a deal with Andre's uncle, Willie Charles Berry--the man police say masterminded the fatal convenience-store robbery--in exchange for Berry's damning testimony at the time of Andre's 1987 trial. Berry testified not only that his nephew, who has an IQ of 80, was the brains behind the Carrollton robbery, but that Andre had been involved in a similar crime in Mesquite. There existed no evidence, outside of Berry's testimony, that this was true; in fact, Berry had previously testified that someone else, not Andre, was responsible for the Mesquite incident.

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.

"He's a devout Muslim now," Ellis says of the young man who went into the state penitentiary as a dimwitted, slow, hulking, soft-spoken convict. "He has found God and is at peace with himself. He's very knowledgeable about the case. He knows what's going on, and he knows the odds are bad.

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