Death Watch: Conflicts of Interest

The state's death chamber fires up again after a year in which the total number of state-sanctioned killings (seven) was the fewest since 1996, when former Gov. George W. Bush oversaw the execution of only three. First set for strapping in is 48-year-old Christopher Wilkins, convicted of capital murder in 2008, two-and-a-half years after confessing to the shooting deaths of two men – Willie Freeman and Mike Silva – near Ft. Worth during a drug deal gone awry.

Several weeks before the murders, Wil­kins left a halfway house in Houston, stole a truck, and drove to Ft. Worth, where he made plans to meet Freeman to buy drugs. Instead, Freeman presented Wil­kins with a $20 piece of gravel and laughed at him. Williams testified during trial that he decided at that moment to kill his new acquaintances. During testimony Wilkins also expressed a desire to plead guilty, skip the remainder of the trial, and await sentencing. He told jurors they had a job to do.

Jurors took only 90 minutes to return a guilty verdict and sentenced Wilkins to death. Despite the verdict, the Fort Worth Star-Telegram reported that two of the jurors cried during the announcement, while Wilkins mouthed "It's okay. It's okay." In 2010, the state's Court of Crim­inal Appeals affirmed Wilkins' conviction.

Wilkins' appellate lawyers, led by Hilary Sheard, filed a federal petition for relief in May 2012 that claimed Wilkins' trial counsel conducted a "belated inadequate and cursory investigation" and violated his Sixth Amendment right to effective assistance of counsel. They also claimed their client suffered from a conflict of interest because one of his previously assigned lawyers had formerly represented another of Wilkins' victims: Gilbert Vallejo, whom Wilkins confessed to killing the night before he shot Silva and Free­man. They also argued that the original trial violated their client's 14th Amendment right to due process, in that the defendant was self-destructive and therefore incapable of entering a plea deal or standing trial. The petition was denied by a federal judge, and the Supreme Court declined a motion to stay the proceedings.

A 2015 execution date was stayed in order to address potential DNA concerns with the case, and the execution was eventually rescheduled for this Wednesday, Jan. 11.

On Dec. 21, Sheard requested another stay of execution from the state's Court of Criminal Appeals, asking that Wilkins be given a full and fair review of his claims. Sheard cited the poor quality of capital habeas representation in "some Texas cases and the devastating consequences" such conditions have on the convicted. Specifi­cally, Jack Strickland, who represented Wil­kins at trial, was also assigned to be Wilkins' attorney during appeals. Strick­land, however, had begun working for the Tarrant County D.A.'s office, which sentenced his client to death, before resigning from Wilkins' case. According to Wilkins' appeal, Strickland made public his plans to return to the D.A.'s office in May 2010, prior to filing Wilkins' habeas application, but waited until Feb. 2011 to withdraw from the case – after habeas had been denied. "He should have been appointed a new attorney, or at least been given a hearing on the issue," Sheard told the Chronicle. "Strickland took the case, but failed to reinvestigate the trial, and [he] had agreed to work with the prosecutor's office that put Wilkins on death row. Wilkins tried to fire Strickland repeatedly, but to no avail."

Late on Wednesday (Jan. 4), the CCA denied Wilkins' appeal. He currently has a petition for writ of certiorari pending with the U.S. Supreme Court regarding an absence of funding for reinvestigating the case and trial; SCOTUS has not issued a ruling on that. If the state moves forward with the execution, it will mark the 539th execution in Texas since the state reinstated the death penalty in 1976. The Department of Criminal Justice currently has two additional executions scheduled for January: Kosoul Chan­tha­koum­mane on Jan. 25 and Terry Edwards the following evening.

"For Law Enforcement Purposes Only"

The Texas Department of Criminal Jus­tice filed a lawsuit on Jan. 3 in a Galveston federal court against the Food and Drug Administration and Commissioner Robert Califf, arguing the FDA has failed to make a prompt final decision on the lethal injection drug sodium thiopental. The two agencies have been in a standoff since July 2015, when the FDA intercepted a shipment of sodium thiopental being sent from India, arguing on three grounds that the drug shouldn't be allowed into domestic commerce. The FDA issued a tentative decision last April that "thiopental sodium appeared to be an unapproved new drug that violated" several FDA guidelines. The agency has not yet issued a final ruling. TDCJ is calling the delay "unreasonable." The suit states the FDA is exempt from regulating drugs that do not affect public health. The department considers its 2015 shipment aboveboard and in accordance with this exemption: The labels are marked "For law enforcement purposes only."

It's been a rough go for the state and its effort to obtain execution drugs recently, as more and more companies refuse to have their drugs used for lethal injection. In 2011, Danish pentobarbital manufacturer Lund­beck prohibited sales to U.S. pharmacies. Last May, Pfizer (the last FDA-approved manufacturer of execution drugs) established new rules preventing death penalty states from obtaining those drugs. The state has contracted with anonymous compounding pharmacies to get its supply of pentobarbital since 2013, but that supply has dried up. Sodium thiopental, a barbiturate that produces unconsciousness and anesthesia and works as a primer drug for a cocktail that kills inmates, was the choice sedative in Texas and a more common execution drug nationwide until the UK banned its export in 2010.