Naked City

"It was a bad week to ask for clemency twice," said Richard Bourke, a member of the pro bono British and Australian defense team that tried to save the life of John "Jackie" Elliott, convicted of an Austin homicide in 1987 and executed Feb. 4 in Huntsville. Bourke told the London Independent that the Travis Co. District Attorney's Office considered acting in favor of Elliott, in deference to the British government and in light of exculpatory evidence unearthed by Elliott's lawyers that had never been available to his original trial attorneys. But since prosecutors were simultaneously preparing to drop all capital charges against yogurt shop murder suspect Maurice Pierce, Bourke said, they were reluctant to act in favor of Elliott as well.

According to Elliott's attorney Clive Stafford Smith, an open records request uncovered 40 witness statements that had never been provided to Elliott's trial attorneys (court appointed, although they had neither capital nor even criminal-defense experience). Some of those statements pointed to the state's star witness as the actual murderer. There was also blood and other evidence that had never undergone DNA analysis; the defense contacted all 12 original jurors, who agreed that a stay should be granted. The argument was persuasive enough in Britain that 150 Members of Parliament wrote the governor in support of Elliott. His home MP Jack Gummer made a personal visit to Austin, and Foreign Secretary Jack Straw called Gov. Perry to intercede on Elliott's behalf.

At 10am on the day of Elliott's execution, prosecutors turned over 51 more pages of exculpatory evidence, and Stafford Smith learned that trial Judge Jon Wisser -- who told the Board of Pardons and Paroles that Elliott deserved to die -- had later written to the district attorney, "Ironically, today I finally read the defense DNA motions and felt that there might be merit to them." By then it was too late to help Elliott, whose requests for a stay were rejected within hours by the trial court, the Court of Criminal Appeals, the federal appeals court, and the U.S. Supreme Court (twice). The Board of Pardons and Paroles voted 18-0 against clemency, and Gov. Perry declined to grant a 30-day stay. "In the end, Caesar turned ... thumbs down in rapid succession," wrote Stafford Smith. "The Governor did not even have the decency to tell us: I had to learn that from the British consulate."

Elliott was the seventh person executed in Texas this year; he was followed two days later by Henry Dunn Jr., who had no pro bono team working on his behalf. Another nine executions are scheduled through April. Should Texas maintain this pace through 2003, the state could exceed its record of 40, set in 1999.