By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
None of these facts, which were clearly relevant to the kinds of social background and character issues considered during the sentencing phase of a death-penalty trial, was ever heard by a jury. Neither her family members nor the head of the women's shelter were ever called to corroborate her story, although they were willing to do so.
Also known prior to trial and detailed in investigator Castillo's report was the fact that Sheppard claimed she had participated in the murder while under duress. Says attorney Brown, "I was aware that prior to and during the trial that Erica Sheppard claimed to have been under duress and in fear for her and her infant child's lives while in the company of James Dickerson."
Although her confession omits any facts constituting duress, and fails to mention that her baby was with her at the time of the murder, investigator Castillo's report reflects Sheppard's claim. "Erica stated that before going inside the apartment, James [Dickerson] grabbed her and threatened her verbally a second time, by saying, 'If you don't go in, I'll kill you and the baby.'" Even after the murder, claims Sheppard, Dickerson continued to threaten her and the baby, keeping her daughter with him as they made their getaway. "Erica stated that on the road to Bay City, James kept the knife on her and told her he would slit her throat if she attempted to escape."
Attorney Brown's own notes of his initial jailhouse meeting with Sheppard reflects Sheppard's contention that she participated in the murder because she was deathly afraid not to. "Inexplicably," argues the habeas petition, "even though duress was the only available defense, trial counsel presented none of this evidence to the jury."
Wright later learned that one of the most damning details in the punishment phase--the testimony of Paula Allen accusing Sheppard of being involved in yet another violent crime--had gone virtually unchallenged by her lawyers. Allen, Jerry Bryant's ex-wife, testified that in November 1991, Sheppard had driven the getaway car while Bryant shot her friend, Wayland Griggs. But the attempted-murder case was dropped after Allen later signed an affidavit swearing she had lied to the police and had not seen either Sheppard or Bryant on the night of the shooting. In the capital case, attorney Brown was in possession of this affidavit, but neglected to bring it to the jury's attention. As a result, his cross-examination of Allen was largely ineffective. And what better evidence could the prosecutor have of proving the defendant's propensity toward future dangerousness than showing she had tried to kill in the past?
Including the ineffective assistance of counsel claims, Wright alleged 40 grounds of error in Sheppard's habeas petition, which, when completed on the day it was due, was 142 pages long. To produce this document, Wright virtually abandoned his practice for two months, relying on other lawyers in his firm to pick up the slack. He and his defense team worked days, nights, and weekends, spending over 600 hours for which he could have otherwise billed $285 an hour. Haynes and Boone paid over $10,000 out of its own pocket for investigative fees; the firm even hired a psychologist who would testify, if allowed, that Erica Sheppard does not pose a future danger to society.
And what if Wright were to be successful in his petition? There would still be an evidentiary hearing at the trial level, and possibly further appeals at the state and federal levels. When asked if he could have done all this for $15,000, the fee cap awarded lawyers appointed by the appeals court, he could barely manage a laugh.
"The irony is that these cases end up costing so much during habeas because the state is willing to spend so little on the front end," he says. "If they were willing to spend realistically what it would take for first-rate representation at the first trial, you wouldn't have as many claims of ineffective assistance."
Because of Alan Wright's diligence, Erica Sheppard was given the "competent counsel" she was entitled to under the law. Perhaps none of the mitigating factors that he found would have made a difference at her trial; the jury might have sentenced her to death anyway. Wright's point is that Sheppard had every right for that jury to hear those facts and decide for itself, but she was deprived of that right by the bumbling incompetence of her trial counsel.
Whether the Court of Criminal Appeals agrees with him is still an open question.
Even after living on death row for three years, circumstances have not yet taken their toll on Erica Sheppard: at 24, her pecan-brown skin is smooth, her oval eyes eager, her smile amazingly naive--not the look you'd expect from a cold-blooded killer.
To a visitor separated by meshed iron and an expansive glass partition, she comes across as unthreatening, giggling nervously like a school girl being asked a hard question in class. She can explain away the horrific crime she was convicted of--perhaps a little too easily. She maintains she was "in the wrong place at the wrong time," as though she were "taken hostage" and just got "caught up in a situation."
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