Erica Sheppard had decided she wanted to die. For three years, she had been on death row, convicted of the murder of Marilyn Sage Meagher, a Houston real estate agent and mother of two. Although Sheppard would later claim that she didn't receive a fair trial, she confessed to her part in the slaying, to the grisly details that portrayed her as an all too willing accomplice to a robbery that had spun violently out of control. It ended in the stabbing, smothering, bludgeoning, and killing of Meagher. Random violence--that's the way the jury saw it when it said Sheppard had acted deliberately, and branded her a continuing danger to society. It demanded by its verdict that she pay with her life.
Appeals would follow the sentence, first directly to the Texas Court of Criminal Appeals, which affirmed her conviction; then with a habeas corpus petition. Once known as the "great writ of liberty," the procedure governing habeas appeals had recently been amended by the Texas Legislature and the U.S. Congress. Capital punishment advocates and crime-busting politicos had pushed for the changes, hoping to ensure that people sentenced to death actually die.
But when Sheppard met with Houston attorney James Keegan, who had been appointed by the appeals court to handle her writ, lawyer and client didn't hit it off. She claims he told her she didn't have a case; there was little hope that a higher court might overturn her conviction. Keegan, however, adamantly denies he discouraged his client and contends that correspondence in Sheppard's sworn affidavit belies her complaints about him.
After their second meeting, Sheppard says, she wrote a letter to the appeals court requesting another attorney, but was never given one. Growing hopeless about her case, she drew strength from the other six women at Mountain View Unit's death row in Gatesville, particularly Karla Faye Tucker, the born-again Christian whose jailhouse conversion caused an odd alignment of televangelists and death-penalty opponents to plead unsuccessfully for clemency from Governor Bush. Before her execution in February, Tucker would pray with Sheppard and counsel her, helping Sheppard make peace with herself, her family, her God.
On November 7, 1997, Sheppard wrote a letter to the appellate court, this time asking that "my appeal immediately be stopped and my execution date be carried out as promptly as possible." Complying with her wishes, the trial court scheduled her execution date: April 20, 1998.
With the clock ticking, her case now grabbed the attention of Amnesty International and others fundamentally opposed to capital punishment. Bianca Jagger wrote her a letter urging her to reconsider her decision. Sheppard's mother, Madelyn McNeil, wrote the Reverend Jesse Jackson, pleading for his assistance in persuading her daughter to once again fight for her life.
Sheppard remained unmoved by these efforts, believing her case was hopeless, that it was God's doing that led her to waive her appeal. She would only change her mind, she told her mother, if she received some other sign, some miracle indicating that God wanted her to live. Only weeks before her execution date, the Rev. Jackson agreed to visit Sheppard in prison. Apparently this was all the miracle she needed; she instructed her attorney to reinstate her appeal.
On April 8, Sheppard was brought into the visitors' area, where she greeted her celebrated guest. "Reverend Jackson came down, and he gave me such spiritual encouragement," says Sheppard. "He just got involved."
By the day's end, Jackson had asked Houston attorney David Marshall, who serves as counsel for Amnesty International, to find a replacement for Keegan. Marshall, in turn, contacted Dallas civil attorney Alan Wright, a 14-year veteran of the silk-stocking law firm Haynes and Boone. But Wright had no idea that by volunteering his services and those of seven other lawyers in his firm, he had stepped deeply into a legal quagmire that has defined the debate over habeas corpus in death penalty cases. That debate pits the Texas Legislature against the state's judiciary and the judiciary against the criminal bar. In 1995, the legislature enacted a law to shorten the delay between sentence and execution; time limits were tightened, filing deadlines were to be rigidly adhered to. Because the goal was speedier justice, the new law also mandated that the appeals court appoint "competent counsel" to represent indigent inmates.
But legislators failed to define what they meant by "competent counsel," or to appropriate enough funds for the judiciary to efficiently manage the procedure. The Texas Criminal Defense Lawyers Association accused the appellate court of appointing unqualified, uncaring attorneys and accused the Legislature of not adequately funding the compensation of habeas attorneys. It advised its own members not to volunteer to handle habeas appeals, seeing their participation as simply expediting the "killing of their clients," as one local attorney puts it.
With Texas leading the nation as the state that has executed the most people since the death penalty was reinstated in 1976, there are those who believe that in our zeal to expedite justice, we have gone too far. They fear that the recent changes to the writ system will deny due process and increase the likelihood that innocent people will die. "If the punishment is going to be extremely harsh," says Houston attorney Cynthia Orr, chairman of TCDLA's death-penalty committee, "then the procedure that allows it to be imposed has to be especially accurate and careful, and that costs money."
Lawmakers counter that they never intended the court to hire shysters. Neither do they expect prisoners convicted of a capital offense to spend the remainder of their lives on death row filing multiple appeals. And ask any attorney if he's making enough money, they say, and he'll always say no.
But the problem was complicated again in 1995, when the Republican-controlled Congress cut funds for the Texas Resource Center, and a major source for the training of "competent attorneys" in habeas cases was lost. A crisis now looms as the courts scramble to find those attorneys willing and able to represent death-row inmates.
Into this void came Alan Wright, a lawyer whose job as a habeas attorney would be to tear down the work of every lawyer who came before him, discover what, if any, evidence had not been introduced at trial, and find some way to save his client's life. Wright was a literal godsend as far as Erica Sheppard was concerned. "[Jackson] got me new legal representation. It was a miracle. It was a miracle from God."
Regrettably, she wasn't privy to the same kind of divine guidance on June 30, 1993, when she became an accomplice to the savage robbery and murder of Marilyn Sage Meagher.
In large part, it was Erica Sheppard's own words that condemned her to death. In her confession, which was introduced at trial on February 28, 1995, she relates how at 19, she and her 10-month-old child had been living with her brother Jonathan when she met James Dickerson, her brother's blue-eyed roommate and lover.
On the evening of June 29, 1993, Sheppard, Dickerson, and another friend, Korey Jordan, were sitting around their Houston apartment when Dickerson popped off that he needed some money and was willing to "jack some cars and some people" to get it. Dickerson enlisted Sheppard's help the next afternoon, and together, they began to scout out victims, spotting a black Mazda parked with its trunk open. A woman was apparently unloading the car and had her apartment open as well. "We had decided that we would go into the apartment and rob whoever was in the apartment and steal the Mazda," Sheppard confesses.
She admits she was carrying a small kitchen knife; she was the first to enter, with Dickerson close behind. Once inside, their movement startled the woman. "Who's there, who's there?" she asked, as her two assailants jumped her, knocking her to the hallway floor. Dickerson held her down, but the woman kept screaming. Sheppard handed him the knife, and Dickerson shouted that he would slit her throat if the woman didn't shut up.
"Don't hurt me, don't hurt me!" the woman continued to yell. "I have two kids."
"Give me your car keys," demanded Sheppard.
For some reason, the woman doubted her. "My keys, you're crazy."
Dickerson raised the knife to her throat, showing he meant business.
"I'll give you anything. Don't hurt me. I have a little money; take my money." She reached into her pocket as best she could, taking out money and throwing it on the floor. But she wouldn't stop yelling, so Dickerson forced her on her back and tried to cut her throat. Only the knife wasn't sharp enough.
Sheppard ran to the kitchen and pulled out a butcher knife from one of the drawers, then ran back to Dickerson and handed it to him. Next, she went into the woman's bedroom, rummaging through her things, finding some money and car keys. Dickerson called out for Sheppard, and she returned, only to find blood gushing from the woman's throat. She was still breathing, and Dickerson told Sheppard to hold the woman down, which she did, as he reached for a plastic bag, placed it over the woman's face, and tried to suffocate her. While the woman was still gasping for air, Dickerson wrapped a bedsheet around her, then grabbed a heavy statue off of a glass table and smashed it over her head.
The assistant medical examiner would later testify that the death of Marilyn Meagher was caused by a five-and-a-half-inch deep stab wound. The knife not only severed the jugular vein, but was delivered with such force that it remained lodged in the vertebrae. This witness opined that the blow was so powerful, it could possibly have been caused by two people. A fingerprint expert also testified that Sheppard's bloody handprint was found at the scene of the crime; only the blood wasn't Sheppard's, it was the victim's.
The prosecution's case was further bolstered by the testimony of Korey Jordan, who claimed that while he was in the apartment with Sheppard and Dickerson the night before, the pair had planned the robbery and discussed their willingness to kill, if necessary.
Sheppard was represented at trial by her court-appointed lawyer, Charles Brown, who had never before been lead counsel on a death-penalty case. The two other lawyers appointed to assist him had even less experience than he did. Brown barely put on a defense, and the jury had little trouble finding his client guilty of capital murder.
Under Texas law, for a person to be sentenced to death, the jury, in the punishment phase of the trial, must answer "yes" to three questions: Did the defendant act deliberately? Was the defendant's conduct unreasonable in response to any provocation offered by the deceased? Was there a probability that the defendant would commit future acts of violence that would pose a continuing threat to society? If the jury answers "no" to any one of these questions, the defendant will be sentenced to life in prison. Any factor that might mitigate the punishment from death to life is admissible at this point in the trial.
In Sheppard's punishment phase, the prosecution called 11 witnesses, the first being Korey Jordan, who testified that on the evening before the murder, he saw Sheppard and Dickerson try to rob another woman in the complex. But they aborted their attempt when the woman ran into her apartment. Paula Allen then took the stand and said that she was the ex-wife of Sheppard's current husband, Jerry Bryant Jr., who had committed a drive-by shooting on Allen's friend Wayland Ray Griggs. Sheppard, she claimed, was an accomplice to this shooting as well. Griggs also testified that it was Sheppard who lured him onto the street, setting him up so Bryant could finish the job. Two of Sheppard's jailmates then told the jury that Sheppard bragged about the murder of Marilyn Meagher, after news accounts of the crime aired on television at the Harris County jail.
Sheppard's attorney did not call her to the witness stand in either the guilt/innocence or the punishment phase, and he offered little evidence that tended to mitigate or explain the heinous crime for which the jury had found her guilty. Sheppard's grandmother was called by the defense, but she was asked almost no questions about Sheppard's background or character. No one else was called in an attempt to put a human face on the person the prosecution characterized as being a "jackal" and a "predator."
The result seemed almost summary and not surprising: death by lethal injection.
There would be an appeal, of course, to the Texas Court of Criminal Appeals in Austin. But on June 18, 1997, in an unpublished opinion, the court handed down its ruling. There was no reversible error: judgment of the lower court affirmed. Sheppard's only hope to avoid execution was by post-conviction relief, a remedy out of antiquity that was meant to release English prisoners who had been unlawfully deprived of their liberty. It was called the great writ of habeas corpus, which, translated loosely from the Latin, was a court order instructing prison authorities thus: Bring me the body.
By the early 1990s, both sides of the death penalty debate could agree upon one thing: The appellate system for handling writs of habeas corpus was no longer working. Death-penalty advocates, seizing on the sentiment of a tough-on-crime populace, took issue with a system that allowed inmates to languish on death row for interminable amounts of time. In Texas, the average period between sentence and execution was eight years. Even today, convicted murderer Excell White has been on death row for 24 years, Ronald Bell for 23 years, Ronald "Buffalo" Chambers for 22 years.
The procedure in Texas requires that before a defendant can file a habeas appeal, he must have first exhausted his direct appeal route--from the trial court to the Texas Court of Criminal Appeals to the U.S. Supreme Court itself. In a direct appeal, a defendant is limited to raising legal issues that were originally presented to the trial judge and overruled. If a defendant loses this appeal, he can then file a habeas writ, which gives him much broader scope, allowing him to raise issues outside the court record that have never before been considered by the trial judge. But under the old habeas law in Texas, the number of petitions as well as issues were limited only by the creativity of the defendant or his attorney, if he was lucky enough to have one.
If a defendant is unsuccessful with his state writ, he can then file a habeas petition in federal court. But under the old law, there was no limit to the number of times each jurisdiction could be petitioned as long as new evidence was presented or new issues were raised. And jailhouse lawyers were notorious for tying up the courts with frivolous petitions that cluttered dockets for years.
Anti-death penalty forces were outraged that despite the complicated nature of habeas cases, despite the finality of their judgment, indigent inmates were often not provided attorneys and were thereby denied due process. High-profile cases such as Randall Dale Adams and Clarence Brandley also brought attention to the manner in which Texas imposed its death penalty. Brandley, a black man, had been on death row for 10 years, convicted of murdering a white high school girl. In 1990, after an arduous habeas process and much publicity, the racist motives of the police officers who had arrested Brandley were revealed and his sentence overturned.
Adams, the subject of the documentary The Thin Blue Line, had been sentenced to death for the murder of a Dallas police officer. The Court of Criminal Appeals finally reversed his conviction in 1989 during a state habeas process, but not before he had been on death row for 12 years. In Dallas in May, Adams spoke about how the system takes advantage of the poor. "The state of Texas has all the money it needs. They can hire anybody. They can fly anybody in to look at the evidence. You can't fight the state of Texas, and you will be indigent when it is over with." A speedier habeas process, says Adams, would have deprived him of the time he needed to prove his innocence, and quite possibly would have cost him his life.
In 1990, the Texas Bar Association, concerned about the quality and availability of counsel representing impoverished capital defendants, commissioned a study conducted by The Spangenberg Group, a research organization based in Newton, Massachusetts. After three years, the group reported its findings: "The situation in Texas can only be described as desperate. The volume of cases is overwhelming. Presently no funds are allocated for payment of counsel or litigation expenses at the state habeas level."
But in a state where nearly 61 percent of the population is in favor of the death penalty, many had little patience for habeas filings and often viewed the process as a time-consuming obstruction of justice. Indigent defendants had already been tried and convicted at the county's expense and gone through their direct appeals, again at the county's expense--drumming up even more money to pay for habeas cases would be no easy task. "There's a lot of issues out there that are going to get a lot more support than the number of people on death row," says state Rep. Pete Gallego from Alpine, the eventual House sponsor of the habeas bill.
After the release of the Spangenberg study in 1993, a state bar committee began meeting with the objective of convincing the Legislature to create an attorney appointment system for indigent death-row inmates during their state habeas appeals. The committee recommended and the Legislature later enacted a system that required the Texas Court of Criminal Appeals to appoint "competent counsel" in all state habeas cases. Although the committee would later suggest that these attorneys be compensated at a rate of $31,000 per case, it deferred to the appeals court to decide what was an appropriate fee.
Once the Legislature convened in January 1995, it only considered the appointment issue as part of a broader package of habeas reform. Attorney General Dan Morales took up the mantle of victim's rights groups who were fed up with delays in death sentences. Morales proposed and the Legislature later enacted changes to the code of criminal procedure that would require direct appeals and state habeas appeals to be filed concurrently. Morales also convinced the Legislature to set stricter habeas deadlines and, except in special circumstances, to limit defendants to only one state habeas appeal.
"By allowing the Court of Criminal Appeals to review trial-record [direct appeal] and non-record [habeas appeal] issues at the same time," Morales told them, "we maintain the integrity of the system, yet cut up to two years off the legal process."
For the system to work fairly and expeditiously, the new law envisioned that the Court of Criminal Appeals would appoint competent counsel who were adequately paid for their time. Although the Legislature had originally appropriated $4 million as compensation for these attorneys, it cut that amount to $2 million, woefully underfunding the program and dooming it to chaos. At first, the Court of Criminal Appeals paid lawyers only $7,500 for handling habeas writs; although last January, after lobbying the Legislature and the governor for more money, the judges were able to boost that cap to $15,000.
Not every judge agrees with setting limits on fees. "When the court imposed the $15,000 cap, I was against it, and I still am," says Court of Criminal Appeals Judge Charlie Baird. "I don't think it's adequate. I think it's very difficult to get competent counsel in cases like these for $15,000."
Originally, the court had counted on the altruism of the Texas criminal defense bar, hoping its lawyers would volunteer pro bono for what those in its rank and file had historically considered a noble cause. But when the appeals court issued a series of decisions strictly interpreting the new law, many criminal lawyers from across the state staged an unofficial boycott and refused to offer their services.
One case, in particular, aroused their ire: Death-row inmate Ricky Kerr had been convicted in October 1995 of killing his San Antonio landlady and her son. After losing his direct appeal, the court appointed Robert McGlohon Jr., an inexperienced San Antonio lawyer, to handle Kerr's state habeas appeal. However, McGlohon did not raise any issues regarding the guilt/innocence or sentencing phase of Kerr's trial. In response, the court not only rejected the appeal, but also counted it as Kerr's one and only petition. The trial court promptly set Kerr's execution date for February 25, 1998.
In his dissenting opinion, published only two days before Kerr was scheduled to be executed, Texas Court of Criminal Appeals Judge Morris Overstreet wrote: "For this court to approve of such and refuse to stay this scheduled execution is a farce and travesty...If applicant is executed as scheduled, this court is going to have blood on its hands..."
Only a last-minute stay issued by a federal judge has prevented Ricky Kerr's execution.
On June 6, the Texas Criminal Defense Lawyers Association chose to formalize its boycott by passing a resolution encouraging its 1,860 members not to seek appointments to represent condemned inmates. "Serious questions have arisen concerning whether it is morally correct for our members to participate in such a meaningless farce, where their efforts simply result in the removal of a procedural hurdle to execution, without regard to the justness of the conviction or sentence."
The stand of the defense bar has only compounded a problem that began in 1995 after Congress cut all federal funds for 21 death-penalty support organizations, including the Texas Resource Center, with its two branches in Houston and Austin. When the center closed its doors, no organization was left to recruit and train attorneys who were willing to take on state habeas cases, but who were unfamiliar with the nuances of the process.
That process, unlike a direct appeal, is not limited to the trial record. The entire case must be reconstructed to see if it meets constitutional standards. An attorney must look for things that didn't happen, but should have; witnesses who should have testified, but weren't called. "It wouldn't be enough to say, 'My lawyers never left their office and never investigated this case,'" says Houston defense attorney Jim Marcus. "You would have to say, 'My lawyers never investigated, and here's what they would have found had they gone out and investigated and brought in the new evidence.'"
Representing condemned prisoners has always been complex and exhausting work for attorneys, pressured by time and the highest stakes imaginable. But it became even more difficult after Congress responded with legislation in 1996, which again shortened deadlines and limited all federal habeas cases to one appeal. And that appeal could only address issues that had earlier been raised and lost in state habeas proceedings (unless new evidence is discovered). These changes put an added burden on the habeas lawyer to get things right the first time around and an added disincentive for them to take the case in the first place.
Small wonder that when Alan Wright, a civil appellate lawyer and partner in the downtown Dallas law firm of Haynes and Boone, LLP, made it known that he was willing to handle a habeas appeal pro bono, death penalty opponents were only too willing to oblige him.
In their normal course of practice, Haynes and Boone's 300 lawyers are more likely to be found litigating in civil court on behalf of a growing list of prominent commercial clients, rather than sullying their white-gloved hands with the likes of a grungy death-penalty case. The firm's posh offices take up five and a half of the 72 floors in downtown's NationsBank Plaza. Founded here 25 years ago, Haynes and Boone now has branches in seven cities in this country and abroad. The firm has on occasion represented the Dallas Observer; its client list includes Atlantic Richfield, Cellular World Corporation, Dell Computer, National Instruments Corporation, the Tandy Corporation, and now Erica Sheppard--thanks to Alan Wright.
At 42, Wright has an easy-going, jocular manner that belies a fierce work ethic--one possible cause of his hair graying prematurely, he likes to think. Chairman of the firm's public-service committee, Wright had been looking for a death-row appeal to handle, but when David Marshall of Amnesty International phoned him last April to see if he was up to the challenge, it gave him pause. Texas had already executed Karla Faye Tucker in February. There was no reason to believe the state wouldn't do the same to another woman. Nonetheless, "we decided to take the case," says Wright. "If you are a millionaire, you get a lot of due process. But these defendants, they are on the bottom rung of the ladder, and they don't have anyone speaking up for them."
On May 1, Wright filed a motion for Sheppard requesting a new attorney and asking the appeals court to appoint his firm without compensation. Attorney James Keegan, who had been appointed to handle the habeas appeal in October, had already been granted the case's only 90-day extension, making July 1 the deadline for filing the petition. A reappointment of new counsel, as Wright requested, would restart the filing time line and give the firm another 180 days. While the court granted Sheppard's request to discharge Keegan, it did not "reappoint" Wright to the case, which effectively gave him only two months to fully prepare the habeas writ.
Wright committed himself and his firm's reputation to a task most solo practitioners would have found difficult to accomplish. Keegan had apparently read the trial record, says Wright, "but it appeared to me that very little, if any, factual investigation had been done, in terms of interviews with witnesses, interviews with jurors, or retaining experts." Immediately, Wright signed up the services of Tena Francis, a top-notch criminal defense investigator based in Wylie, and the firm assigned seven additional attorneys to the defense team.
Wright's first task was to read and study Sheppard's trial record. The lower court had appointed three lawyers to try her case. But after Wright read the transcript, he says, it became painfully apparent that her lead attorney, Charles Brown, had done virtually nothing to prepare himself for Sheppard's trial. Wright was appalled. "It made me angry," he says, "because I don't think the trial was fair. And it wasn't fair because the attorneys didn't make an effort to make it fair."
Wright intended to file several claims of ineffective assistance of trial counsel; surprisingly, he was helped in those claims by an affidavit he obtained from the trial counsel himself. In his sworn statement, Brown corroborates how little he prepared for Sheppard's capital case. He lists 10 possible witnesses that he did not interview prior to trial. Erica Sheppard, he says, also provided him with a list of 12 other witnesses who would testify in the punishment phase on her behalf; he interviewed only two of them. Instead, Brown claims, he relied on the assistance of his co-counsel to handle the investigation of all mitigating evidence in the sentencing phase, even though "I did not consider Attorney Bolden qualified to sit as second chair." And attorney Hazel Bolden claims by her affidavit that Brown--whom she did not consider qualified to sit as lead counsel--"did not assign her any responsibility for the investigation of the case."
The trial court had appointed private investigator John Castillo to aid Brown in the pre-trial investigation, and Brown admits that he was the only one of Sheppard's attorneys who was privy to Castillo's findings. Much of Castillo's report includes mitigating evidence about Sheppard's background and character that could have been used to humanize her during the sentencing phase, but wasn't. Brown acknowledges that it was a mistake not to allow Sheppard the opportunity to testify in her own defense. He did not return phone calls requesting an interview for this story.
Only by doing the work that Brown should have done, such as contacting dozens of witnesses--friends, family, police officers--were Wright and his investigative team able to patch together the story of Sheppard's life that should have been presented to the jury. If Sheppard had been called as a witness, according to the habeas petition, she would have testified to the following:
Erica Yvonne Sheppard grew up hard, raised in Bay City just outside of Houston by an abusive mother who moved her constantly between homes and lovers. As a young child, she was sexually assaulted and forced to perform oral sex on a babysitter's boyfriend who threatened to kill her mother if Erica told anyone. "I can only remember him from here down," she says, placing her hand level with her chest. "I can't remember his face."
Sheppard says she tried to tell her mother what the man had done to her. "She didn't believe me," she says. "That's when the wall went up, and I said, 'I'll never tell whatever bad happens to me again. I'll just deal with it.'"
Her mother, who often left Sheppard and her brother in the care of their grandmother, would beat her so hard that her grandmother had to intervene. "Growing up, we really didn't have a mother-daughter relationship," says Sheppard. Her mother also had a series of lesbian lovers who were also abusive to Sheppard. Although she attended church regularly and relied heavily on her faith, Sheppard became pregnant at 13, and her mother, upon hearing the news, "beat her half to death." She then had her first abortion.
As a teenager, Sheppard was sexually assaulted twice, once by a man who forced her to perform oral sex at knifepoint; once during a party at a friend's house. A second pregnancy from a man she hardly knew resulted in the birth of a son; the father never had a relationship with the child, and never paid child support. Erica dropped out of high school in the 10th grade and made herself virtually unemployable; she got pregnant again, and the birth of a second child, another son, wasn't even acknowledged by the father, who denied paternity. Sheppard's mother continued to be physically abusive to her, once trying to strangle her with a phone cord.
"Children need to feel loved. They need to feel protected," says Sheppard. But in her mother's home, Sheppard didn't find the care and protection she craved. "If they're not getting that at home," she says, "they're going to get it from somewhere...They're going to find something to fill that hole that they feel like is empty.
"I was searching for love," she says. "So, you go out and you find it in sexual relationships, with whoever says, 'Hey, you're pretty'...You know, if a person has real low self-esteem, they're going to go for that."
In 1991, Sheppard met Jerry Bryant Jr., a Bay City auto mechanic more than 10 years her senior, who fathered her third child, a girl, and stayed around long enough to make her life miserable. By Sheppard's account, Bryant was overly possessive and jealous, outraged when she wanted to spend time even with her own children. He would beat her mercilessly, watching Sheppard cower as he held a knife to her throat or stuck a .45 revolver in her face, threatening to kill her if she ever tried to leave him. Several times she called the police, even got a protective order keeping him away from her, but she would always relent and let him back into her life.
In May 1993, their 9-month-old daughter was in the hospital suffering from milk intolerance, says Sheppard. By her side for days, Sheppard left only to go home and change clothes. On May 24, Bryant showed up at the hospital and, according to Sheppard, demanded that she come home and have sex with him. When she refused, he attacked her, punching her in the eye and beating her so severely, she lost consciousness.
Two days later, the otherwise submissive Sheppard found temporary shelter for herself and her baby at the Matagorda County Women's Crisis Center. She knew that Bryant was waiting for her at her grandmother's house where they lived together and was terrified he would make good on his threats to kill her. Weeks later, she decided that she and her baby would be safer in Houston, living with her brother Jonathan. Her two other children would stay with her mother and grandmother.
But it was here that she met James Dickerson, her brother's unemployed lover, and the man would change her life forever.
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."
Although she is currently in solitary confinement (by choice), it becomes obvious to those who visit that she will not allow her spirit to be caged. That determination is reinforced every time she walks past the recreation room on death row and notices the inmates' tribute to the first woman executed in the state since before the Civil War. The memorial is a black and white photo of Karla Faye Tucker, her smiling face forcing itself into the simple room above a poster that reads: "When you live in an 8' by 8' cell, the only thing that's free to wander is your mind.
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