Life After Death

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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.

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Robert Wilonsky
Contact: Robert Wilonsky

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