Life After Death

Andre Lewis was eight hours from being executed, until the courts realized they had made a big mistake

By the time Babcock and Cohen introduced me to Odell, he was a shriveled, rotting 49-year-old man confined to a wheelchair in an Oak Cliff nursing home that smelled like piss and death. His penis had been removed because of gangrene, the result of his shooting heroin into the last remaining vein he could find worth a damn. He had syphilis. He denied everything. "I never did nothing to hurt those kids," he said. "I just got these demons in my head, and I gotta get rid of them." He finally died in September 1994, when cancer and syphilis did him in.

The Observer's story about Andre Lewis, "Who We're Killing," appeared February 11, 1993. He was to die seven days later, but Judge Fish granted him a reprieve hours before the needle was to be jabbed into Lewis' arm. That stay set into motion 11 years' worth of appeals, legal filings and hearings, during which one man in faraway San Francisco struggled to keep Lewis from dying. That he actually succeeded surprised the hell out of him.


When attorney Richard Ellis took Andre Lewis' case in late 1992, he had already been practicing law for 17 years, during which he had represented kids accused of murder. But in the early 1990s--"after much thought and reflection," he says now--Ellis decided to take on death penalty cases, which he viewed as "a civil rights struggle." And where better to begin than in Texas, where killin' criminals is a way of life?
Andre Lewis, top, is off Death Row now, trying to adjust to life without a Grim Reaper over his shoulder. His father, Odell, bottom left, died in 1994 after years of abusing his children. Ruth Sims, bottom right, hasn't spoken with Andre in three years.
Andre Lewis, top, is off Death Row now, trying to adjust to life without a Grim Reaper over his shoulder. His father, Odell, bottom left, died in 1994 after years of abusing his children. Ruth Sims, bottom right, hasn't spoken with Andre in three years.
San Francisco-based attorney Richard Ellis, the man who saved Andre Lewis
James Sanders
San Francisco-based attorney Richard Ellis, the man who saved Andre Lewis

"It's all about race and class and the poor who don't get adequate representation all the way through, from trial to appeal to post-conviction," Ellis says from his Bay Area offices. "It's about poor people not being able to afford decent attorneys who can do a decent job in court, not being given the funds by the state to fund their court-appointed attorneys. To do death penalty, one should be on the front lines of the death penalty, which is Texas and not California. It's like if you were doing civil rights work in the 1960s and going to New York City or Minneapolis. It's not where the center of action was. And the center of action regarding the death penalty is, and has been for the last who knows how long, Texas."

So he went looking for a case and found Lewis', boxes of files that had piled on Sandra Babcock and Elizabeth Cohen's desks and their floors and everywhere else they could see in their tiny Austin offices. They were happy for the assistance--desperate for it, in fact. It would take months for Ellis to catch up with the case, but initially he had little time: Lewis' first execution date was rapidly approaching, and the two Texas attorneys were buried beneath paperwork. "It was like a relay race in the Olympics: You hand off the baton," Ellis says. "They handed it off, and here's where it stayed for the next 11 and a half years."

The attorneys had always viewed Lewis' case as a million-to-one shot to win: There was the video, after all, that damning residue that proved Lewis had pulled the trigger. To most juries and judges, it wouldn't matter who gave him the gun, and it wouldn't matter who planned the crime or how Lewis ended up crossing paths with McKay. All anyone needed to know was right there: Andre Lewis held up a convenience-store clerk, threatened to kill her and then murdered a kid who just got in the way.

But Ellis, in his hundreds of pages of legal briefs, never said Lewis was innocent. All he ever argued was that Lewis never got a fair shake after the jury handed down its verdict--that the jury that convicted him never heard a single word about his childhood, never factored in the overwhelming mitigating circumstances that might have led 12 people to spare his life. During the original 16-day trial in May 1987, Lewis' original court-appointed attorneys, Mike Byck and Jan Hemphill, had put on a single witness during the penalty phase: Lula Mae Berry, Andre's grandmother and Betty Mae's mama, who was asked yes-or-no questions to which she provided brief, unrevealing answers. Even though their case file reveals they spent some eight hours interviewing Lewis' family about his abusive childhood, Byck and Hemphill claimed they didn't have the time or money to do a proper investigation.

"Many lawyers assigned to capital cases don't have the skill or experience or don't have experts to help them develop evidence of mitigating circumstances," Maher says. "Many death cases shouldn't have even been death cases, but this is among the most profound failures in all capital cases."

But Ellis knew all about Lewis' past; Babcock and Cohen provided him with enough horror stories to last a lifetime. All he needed to do was convince a judge that they were horrifying enough to warrant vacating his death sentence. Seemed simple enough. It took only 11 years to find a court that agreed with him.

Lewis' case bounced in and out of courts throughout the 1990s: Ellis, who came to Texas several times a year to meet with Lewis, would petition for rehearings, always with the courts denying Lewis relief. In the meantime, Lewis went under the microscope of psychologists and law professors who believed his growing up in a violent household on lead-poisoned soil doomed Lewis before he was old enough to tie his shoes. 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."

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