By Stephen Young
By Stephen Young
By Stephen Young
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
Lewis does not have that dream anymore. Death, which used to loiter outside his cell door like an impatient old friend, has moved on to claim some other poor soul. For the first time in a long time, Andre Anthony Lewis does not have the precise date of his demise penciled on some executioner's calendar. Today he knows there will be a tomorrow and a day after--a day when he might learn a skill he could use in the real world, should he ever be given the chance to walk out of prison.
"And hopefully one day I can talk to youngsters heading down the wrong way and explain what I've been through and detour them," Lewis says now, his 6-foot-4, 250-pound frame squeezed into a tiny cell at the Allred Unit of the Texas Department of Criminal Justice, located just outside Wichita Falls in Iowa Park. The voice, soft and reflective, does not match the vision of this hulk clad in a prisoner's white jumpsuit. Some of the guards have taken to calling Lewis "The Green Mile," because he reminds them of the gentle giant from that movie.
Soon he will begin taking vocational classes, perhaps something to do with bricklaying or woodwork, something to make him useful in a world that once regarded him as useless. He is slowly adjusting to life off Death Row. He now has a cellmate, takes his meals outside his cell and watches television or plays checkers in a communal break room with other inmates. During his 16 years in the Ellis Unit and then the Polunsky Unit, he was isolated, confined to his cell for 23 hours a day. When a guard came to fetch him, Lewis was always sure it was to tell him that today was the day he was going to die. Now, someone comes to retrieve him three times a day for three-hour stretches in the yard or the TV room. Life is better now, because at least it's a life.
"At least now I have something to look forward to--my freedom," he says. "And I want to help others from heading down the wrong road." Few would make better tour guides than Lewis. He knows the path by heart.
On February 18, 1993, Lewis was supposed to die, and it was almost certain he would. His attorneys had little hope; Lewis, none at all. Six years after a Dallas County jury had sentenced him to die, Lewis was a mere eight hours from becoming the 55th life taken by the state since 1973, when a revision to the Texas Penal Code allowed for executions to resume in the state--after the U.S. Supreme Court had ruled them unconstitutional just one year earlier.
Lewis, now 38, had been convicted of capital murder for killing a 17-year-old named Matt McKay during the botched November 20, 1985, hold-up of a Carrollton convenience store. Of his guilt, there is no doubt: The crime, set up by Lewis' uncle, had been captured on black-and-white surveillance video. Lewis had been in trouble before for stealing cars and breaking into buildings, and in 1985 he was sentenced to seven years' probation for burglary and car robbery. The shooting, though, was the only time he'd done anything violent. Problem was, it doesn't get much more violent than killing a kid.
Lewis, then 19, and his half-brother Tommie Ronnie Berry, carrying loaded guns their uncle had given them, walked into the PDQ Texaco Food Mart on Stemmons Freeway pretending to be customers. Berry asked for a restroom key; Lewis, a pack of cigarettes. The clerk asked if they wanted anything else. Yeah, Lewis told her. All the money in the drawer. "Get on the floor, bitch," he ordered, in monotone voice flattened by cocaine and booze. Lewis also wanted what was in the safe, but the clerk said she didn't know how to open it. "You can open the safe, or you're going to be the killed one!"
Berry came over to help his half-brother, but they fumbled around so long that customers, including two men in their late teens, began filing into the store. The two men, Dave Masters and Matt McKay, had come from Houston and were heading home to Oklahoma City. Lewis pretended to be a clerk, but in his addled state he couldn't maintain the ruse for long. Brandishing the gun, he ordered the customers to hit the ground, and all complied save for McKay, who appears on the videotape to be oblivious to the commotion around him. Lewis shouted at McKay, then finally lost his temper and pulled the trigger, firing a single bullet into his gut. A red stain spread across his white shirt. He asked his friend Dave, "I'm dying, aren't I?" On the tape, Lewis appeared to kick McKay.
McKay would survive his gunshot wound for 10 days, but after several surgeries, his parents told the doctors at Parkland Memorial Hospital to turn off the equipment keeping their son alive. Matt McKay was pronounced dead at 3:07 a.m. December 9, 1985.
Less than eight years later, Andre Lewis had consumed his last meal and been guided to a cell to await his escort, a Grim Reaper dressed as a Texas Department of Criminal Justice officer. He wondered if he'd see his family one last time and what awaited him "on the other side."
He was damned near in the ground when, at nearly the last moment, U.S. District Judge Joe Fish granted Lewis a stay of execution--and, as it turned out, released him from Death Row altogether.
Two days before Christmas last year, Lewis awoke from his nightmare. The 5th U.S. Circuit Court of Appeals vacated his death sentence--not because Lewis was innocent, but because during the penalty phase of his original trial in 1987, his court-appointed attorneys didn't present a single shred of evidence that could have softened the jury's deathblow.
They did not tell the jury that Lewis, picked on at Pinkston High School for his shabby, ill-fitting clothes and for being unable to understand anything other than a football coach's commands, was a victim of ghastly abuse--had been since he was a child, since he was old enough to remember anything. They did not utter a word about his life story, which, in court documents and the testimony of family members and medical professionals, reads like the screenplay of a horror movie, filled with stabbings and shootings, sexual abuse and mutilations. They did not mention his father, Odell, a junkie and convicted felon who threatened his own children with guns and knives and put out his cigarettes on their skin. They did not mention his mother, Betty Mae, who used drugs and drank heavily during her five pregnancies. They did not mention how the Lewis family lived in the George Loving Housing Project in West Dallas, near the infamous RSR lead smelter plant that poisoned the playground on which Andre and his sisters and brothers played as children.
So the jury did what it believed just and necessary: It sent a man portrayed by prosecutors as dangerous and habitually violent to die, never knowing that he, like so many men on Death Row, was doomed long before he and McKay crossed paths in that convenience store.
It took several attorneys, including a lawyer living in San Francisco, 11 years to convince the courts that Lewis did not have a fair trial. In that time, the federal courts intervened, and the U.S. Supreme Court handed down a ruling in another case that would directly impact Lewis'. Lewis' attorney persuaded the courts to hear the terrifying testimony the jury did not in 1987. Family members and psychiatrists paraded into court, each bearing their own horror stories. Lewis even became something of a poster boy for legal experts trying to link lead poisoning to mental deficiency and criminal behavior. And in that time, Lewis and his lawyer hoped he wouldn't be executed, but never had the temerity to believe his life would actually be spared.
"Being in prison for a long time will change anyone, for good or worse," Lewis says. "For me, it was for the good. When I first got here, I was young, angry, scared. I didn't have a sense of direction. All I did was react. Then one day I saw the older guys smiling, getting along. One day I said, 'I want that kind of peace.' I have always hoped, but I tried not to put all my hope into one basket. I tried to live day to day, and whatever happened, happened."
On November 15, the Supreme Court vacated the death sentence of LaRoyce Lathair Smith, sentenced to die for pistol-whipping, shooting and stabbing with a butcher knife a 19-year-old female manager of a local Taco Bell in January 1991. Smith's and Lewis' stories are almost identical: They're of below-average IQ and were lucky to have even survived ghastly childhoods. Seven of the justices believed Smith shouldn't die; only two, conservatives Antonin Scalia and Clarence Thomas, voted otherwise. Five months earlier, the court ruled the same way for Robert Tennard, insisting that if the jury had known about their life stories, perhaps they would have imposed "a sentence more lenient than death." And earlier this year, they took Delma Banks off Death Row, claiming he, too, didn't get a fair trial.
And so, in a state once known for killing its convicts with numbing regularity, there is now a bit of hope that one death need not guarantee another. Perhaps that will change as George W. Bush begins to reshape the Supreme Court in his image. After all, when he was governor of Texas, 152 people were executed while he opposed setting up a single legal roadblock that might have slowed their path to the death chamber.
Lewis survived because his legal battle was taken out of the hands of Texas. Instead it was waged in the federal courts, which are historically friendlier to the condemned.
And it was the U.S. Supreme Court that in June 2003 lifted the death sentence of a borderline retarded Maryland man named Kevin Wiggins, convicted of killing an elderly woman for whom he worked as a handyman. The court ruled that the jury that sentenced Wiggins to die might have ruled differently had it heard about how he was starved, beaten and repeatedly raped as a child and how his mother used to punish her young son by burning his hands on a stove.
"The Wiggins case did not break new ground," says Robin Maher, director of the American Bar Association Death Penalty Representation Project. "It was reaffirming a well-established position about mitigating evidence. It served as an important reminder that this was essential evidence in death penalty cases. It put an exclamation mark behind the importance of developing and putting mitigating evidence in front of a jury before sentencing. That evidence is usually painful, too, facts nobody wants to admit to, and it's the same story in case after case. As compelling as the facts were in Wiggins, his story was not unusual. Many, many clients are executed without evidence presented that was far more compelling."
Lewis and dozens like him waiting to die in Texas and elsewhere do not have the market cornered on tragic, grisly childhood tales. They're but tiny chapters in thick books spread out over hundreds of volumes. Lewis isn't special. He just survived long enough for someone to tell his story.
He would have disappeared down the well long ago had it not been for three attorneys who believed Lewis had been poorly represented during his original trial and who believed he did not mean to kill McKay and did not deserve to die for pulling the trigger that awful afternoon.
It was almost 12 years ago this week that two of those lawyers, Sandra Babcock and Elizabeth Cohen, first contacted the Dallas Observer about Lewis. They worked for the Texas Resource Center back then, a federally funded group of attorneys and investigators who made sure every inmate had his or her right to a federal appeals process after a death sentence was imposed. (The Resource Center has become a thing of the past; in September 1995 the federal government cut off funds for resource centers around the country.)
To them, Lewis was a special case and not so special at all, meaning they wanted to save his life, absolutely, but also to use his case to reveal how broken the system had become in sentencing to death a man who never had a chance at any kind of normal, decent life. Babcock and Cohen, and one of the TRC's investigators, spent nearly two months introducing me to Lewis' family members--the aunt and grandmother who tried to raise and rescue him, the sisters who had their own minor run-ins with the law, and the junkie father who tortured his children so often and so brutally that they came to believe that his killing them would have been the kindest thing their dad could have done.
Odell Lewis, who spent time in Louisiana's infamous Angola Penitentiary for breaking into a drugstore and had his own FBI file, beat his kids with firewood, threatened them with the pistol he kept in his belt and cut them with the knife he always had on him. He tore their clothes to shreds, kicked his daughter Tammy so hard when she was 11 she had to have an emergency hysterectomy and tried to rape her when she was 14. When Andre was 6, Odell threw him down a flight of stairs, and the boy suffered massive head injuries; a few years later, Odell punched him in the face with such force Andre's teeth busted through his lips.
Odell would also put out his cigarettes on the kids' arms and force them to pull down their pants so he could whip their genitals with extension cords. Andre's aunt Ruth Ann Sims and Tammy always believed he was into black magic: They recalled the nights when he would sleep in a cemetery and told of how he would "splash blood on the walls and holler voodoo." A few weeks ago, Sims said Odell was "one of the evilest things."
Odell's wife, Betty Mae, was no better. She was a pill-popping drunk, as violent as her old man, whom she met and married when they were living in Shreveport, Louisiana, in the late 1960s. In front of the kids, Odell would put a cooking pot over Betty Mae's head and beat the pot till she passed out. In the summer of 1969, Odell shot her in the leg and arm with a .22-caliber pistol after a fight at a car wash. He used to beat her with baseball bats; he used to stab her, too. Years later, after the family moved from Shreveport to the West Dallas housing projects, Betty Mae slashed Odell with a butcher knife, spilling his blood and guts all over the floor, then told Andre to call an ambulance. Andre would dream about the incident for years, even after he'd been confined to Death Row. She, too, would spend time in prison and finally died in 1991, at the age of 47, of a massive heart attack.
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.
"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."
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 used Peck's research to establish a "nexus between Lewis' disadvantaged background and his lack of culpability at the time he committed the crime." She concluded that "Lewis' background and cognitive defects, in addition to his intoxicated condition at the time of the crime, 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 would also find clinical and forensic psychologist Mark Cunningham to study Lewis' life story--full, Cunningham would later write, of "sequential emotional damage," the kind that keeps a child from ever having any shot of growing into an adult worth anything.
Finally, in late November 2001, Ellis was allowed to present to U.S. Magistrate William Sanderson three days of testimony no one had ever been allowed to hear. Family members paraded to the witness stand to recount their stories of Odell's abuse and violence and "evil behavior." Andre's old coaches at Pinkston showed up to talk about what a good kid he'd been and about how much trouble he had learning the simplest task. "We would have to repeatedly go over, over, over, over, over the same offensive plays," said Coach James King. And Cunningham and Peck showed up to repeat their findings that the abuse Lewis suffered is "the most severe of any type I have come across," as Peck told Sanderson.
Lewis never wanted that hearing, not because he wanted to stay on Death Row, but because he didn't want to relive those memories. He had stopped having those dreams. Enough already. Maybe they should have killed him. Woulda been easier to take.
"I tried to ignore a lot of things and not think about the abuse," he says now. "I can't change it, and I don't want to think about it. I didn't want to go down that path again, but Richard was trying to save my life, so I was willing to go through it. Sitting in the courtroom for that hearing was a struggle, but necessary. I prepared myself for it. I wasn't sad for myself. I was sad for my family, having to go through it again."
That was the last time Andre Lewis saw his family--the last time they had a chance to hug him, to tell him they loved him. What saved Lewis ultimately destroyed a family. Before the hearing, Aunt Ruth says, Lewis would write all the time. Afterward, they didn't hear from him at all, not even when the 5th Circuit Court vacated his death sentence on December 23 of last year.
"You don't like to tell stories about kids' parents with them right there," Ruth Sims says. "It was like we were ganging up on him. But we lived this, too. Every time you start to talk you'd break down, because you'd bring it up from memory. I told them we didn't have no reason to lie. Those kids went through hell. We can't change that. That's what happened. But after the hearing he would never write."
His grandmother Lula Mae Berry says she didn't even know Lewis had been taken off Death Row and that he was now in Wichita Falls. His sister Lisa says she, too, had no idea. "My grandmother always said the truth will set you free, and we told the truth," she says of that November 2001 hearing. "I guess Andre didn't like that."
From the moment he took the case, Ellis believed that Lewis deserved the fair trial he never received in Dallas County, deserved to be considered as more than a figure on a videotape doing a bad thing to a good kid. Had Ellis lost this case, and this client, he says he would have quit practicing law.
"I witnessed two executions of two of my clients, and I couldn't have gone through that again," he says. "It's too draining. It's awful. You can't imagine what it's like to see someone you know and like as a friend sit there on a gurney and be killed. It's an awful thing. I still remember...a lot...about the first ones I saw." His voice cracks. "It was very hard. I was ready to give it up. I was not going to continue had he been executed. I don't even like to talk about it. It's just too, too traumatic. Getting Andre off Death Row did give me hope in the sense that I am still doing it. And I hope maybe it will give other people hope."
The Dallas County District Attorney's Office could have tried Lewis again, but the district attorney concluded it wasn't worth the cost and time, and in May Lewis was given life in prison, with the possibility of parole. He has been a model prisoner. Maybe he will get out one day. Maybe he'll do something with his life after all, now that he has one at long last.
"Today it ain't even fully hit me yet," Lewis says, smiling for the first time at the end of an hour-long interview. "I realize I am off Death Row and what's expected of me and what I have to do. I know I came within 24 hours of being executed, and now I have a life. It's strange. Guys say, 'You're lucky,' and maybe I am. For so long I prepared myself to die. Now I have to prepare myself how to live."