Three Executions Pending

l-r: Kimberly McCarthy, Rickey Lynn Lewis, Rigoberto Avila

Last week Dallas District Attorney Craig Watkins asked for a postponement of the April 3 execution date for Kimberly McCarthy, scheduled to become the fifth woman executed in Texas since 1854. The execution has been moved to June 26. The question is whether racial bias affected her case; in 1998, in keeping with a historic practice, prosecutors struck from McCarthy's potential jury pool all but one minority candidate. "When I sign a death warrant in Dallas County, I want the public to trust that the inmate who was sentenced to death by a jury received a fair trial," Watkins said. And proposed legislation is pending at the Capitol (including Dallas Democrat Sen. Royce West's Senate Bill 1270, the Texas Racial Justice Act) that could allow inmates to appeal when there is evidence a trial may have been tainted by racially discriminatory actions.

Meanwhile, the state is readying for two more executions: Rickey Lynn Lewis and Rigoberto Avila, scheduled respectively for April 9 and 10. Serious questions remain in each case – including whether Avila is actually innocent. They would be the 494th and 495th inmates executed in Texas since 1982.

IQ Limbo

In the case of Lewis, the issue is whether he is mentally retarded, and thus ineligible for the death penalty. On Sept. 16, 1990, Lewis, a three-time burglar, broke into the Smith County home of George Newman and his wife, Connie Hilton. Hilton spied Lewis in the hall holding a shotgun; she screamed; Newman came to her aid and was shot and killed. Hilton was then beaten, raped, blindfolded, bound, and left for dead; Hilton said two other men were also involved in the attack, but only Lewis was arrested, tried, convicted, and condemned to death.

Lewis was initially slated for execution in 2003, but that was stayed to consider his claim of mental impairment, made on the heels of the U.S. Supreme Court's landmark 2002 decision that outlawed the practice of executing the mentally retarded as cruel and unusual punishment. Lewis was granted an evidentiary hearing in district court, where a state district judge concluded that Lewis had not demonstrated by a preponderance of evidence that he is deficient; in November 2012, the Fifth U.S. Cir­cuit Court of Appeals agreed. On Monday, April 1, the U.S. Supreme Court declined to review the case.

Lewis subsequently appealed to the state Court of Criminal Appeals, arguing that the district court decision was incorrect and relied on an incorrect assessment of Lewis' IQ score. The CCA has established a test comprised of three factors: low IQ, deficits in adaptive functioning, and onset before age 18. The expert the state deemed most credible, Dr. Susana Rosin, concluded that Lewis had impaired adaptive functioning from childhood, but that his IQ was too high for him to be considered retarded. In the CCA appeal, attorney Mike Charlton argues that Rosin, the only expert placing Lewis' IQ above 70 – generally accepted as the cutoff for mental retardation – made significant errors in administering a test with which she had no previous familiarity, rendering her conclusions useless. Rosin, Charlton wrote, "employed a methodology in conducting Mr. Lewis' evaluation that deviated in virtually every respect from the established scientific principles governing mental retardation evaluation."

Unless the CCA issues a stay, the 50-year-old inmate will be executed on April 9.

Connie Hilton now works for Bridges to Life, a program that connects crime victims with prison inmates in an effort to reduce recidivism.

Contradictory Evidence

The state had planned to execute Avila April 10 for the 2000 death of 19-month-old Nicholas Macias in El Paso. On Tuesday, the execution was postponed to July 10. Prosecutors said Avila, who had no criminal record or any history of violence, stomped repeatedly on the toddler because he was jealous that Macias' mother, Marcelina, was spending more time with her toddler than with him.

On Feb. 29, 2000, Marcelina Macias asked Avila if he would babysit, as he'd done before, for her two children – four-year-old Dylan Salinas and the toddler Macias. Marcelina left the house just after 6pm – the two children were in another room playing while Avila watched television. At 7:02pm Avila called 911, saying that Macias was not breathing; when paramedics arrived, Avila said that he was watching TV when Salinas came into the room to say he'd been playing with Macias, had placed his hands over the toddler's mouth, and that now Macias wasn't breathing. According to court records, paramedics noticed what appeared to be a boot print on Macias' abdomen; in surgery, doctors discovered that Macias' pancreas had been severed. Macias died on the operating table.

Avila was questioned by police for seven hours; in his initial statement he maintained his original story. After being shown pictures of the boot-shaped bruise, Avila allegedly broke down and confessed to killing the toddler, police said. In fact, Avila vehemently denied hurting Macias then and continues to maintain his innocence, says his attorney Cathryn Crawford of the Texas Defender Service; Avila trusted the officers and signed off on the second statement without reading it, she says.

At the request of the state, the Texas Department of Public Safety compared the shoes Avila had been wearing the night Macias was killed with blown-up shots of the bruise on his abdomen; DPS concluded there was no match. At trial the state proffered medical testimony that posited that Macias had actually been kicked several times and then stomped with such force that it severed the organ. Indeed, the state used the idea that the killing was so brutal and unprovoked to argue not only that Avila would pose a future danger unless sentenced to death, but also that there was nothing that would mitigate the imposition of the death penalty. The jury ultimately complied and sentenced him to die.

The postponement of the execution date will give Crawford more time to investigate before filing a writ* that will not only challenge the medical evidence, but proffer additional details that strongly suggest Avila is actually innocent of the crime. The writ will posit that advancements in medical science demonstrate that the injury to Macias was far more likely caused by a single fatal blow than by being repeatedly kicked. Moreover, the writ will point to evidence not previously heard in court that suggests strongly that the ultimately fatal injury was the result of a tragic accident caused by Macias' older brother, Salinas – the boys were known to roughhouse, and Salinas was known to imitate television wrestlers.

Crawford hopes the courts will order a hearing to consider the new medical evidence and other issues that remain unresolved in the case.

*In the original version of our story, we reported that a writ of habeas corpus was filed last week in support of Rigoberto Avila. In fact, the writ has not yet been filed. Instead, Avila's execution date was rescheduled in order to give lawyers more time to investigate before filing the appeal. We regret the error.