Death Watch: “An Intentional Smothering”

Tilon Carter says he never meant to kill James Tomlin

Tilon Carter faces execution on Tuesday, Feb. 7, after 10 years on death row. The 37-year-old was convicted of capital murder in a Tarrant County court in 2006 for the murder of James Eldon Tomlin.

In April 2004, Carter and his girlfriend, Leketha Allen, robbed Tomlin, an 89-year-old retired veteran with jars of cash stashed throughout his home. Carter taped Tomlin's hands and legs together and covered his mouth with duct tape before the couple ransacked the house and stole $6,000 and a shotgun. Tomlin's daughter discovered her father's body that day. An autopsy indicated Tomlin had been beaten and smothered, and died of positional asphyxiation.

Carter admitted before his trial that he planned to rob Tomlin, though he maintained that he did not mean to kill him. The Tarrant County medical examiner testified that it wasn't exactly clear how Tomlin suffocated. The position and restraints were "consistent" with positional asphyxiation, but marks on the victim's lips "indicated an intentional smothering." Carter's history of misdemeanors and armed robbery made it easy for prosecutors to convince the jury that he was a career criminal. Carter pleaded not guilty. Jurors disagreed and sentenced him to death. Allen accepted a plea for 25 years in prison. She's eligible for parole this year.

Carter's appeals have hinged on arguments that his trial attorneys failed to offer contradicting testimony regarding the cause and manner of Tomlin's death, thereby violating his Sixth Amendment right to effective counsel. Attorneys have also focused on the court's alleged failure to prove the death penalty was warranted (as opposed to life in prison), and that state law pertaining to a jury's right to know is in fact a violation of the Eighth and 14th amendments. Those appeals have all failed – most recently, last March, at the U.S. Supreme Court.

On Nov. 2, 2016, Carter's appellate attorney Robin Norris requested permission from a federal court to withdraw as Carter's attorney – at Carter's request. Norris wrote: "All judicial avenues for review of Mr. Carter's capital murder conviction and death sentence have been exhausted." What remained were procedural filings for clemency and commutation to the governor and state Board of Par­dons and Paroles. Those, Norris suggested, could be taken over by new counsel. The court has not yet responded.

Carter is expected to be the third Texan executed this year. John Ramirez's execution, scheduled for today (Feb. 2), was stayed in a Corpus Christi federal court on Tuesday. Attorney Greg­ory Gardner, who played a crucial role in the stay of Kosoul Chantha­koum­mane's execution last month, took over Ramirez's case Jan. 27. Judge Nelva Gon­zal­es Ramos wrote in her order that "the short time remaining before Ramirez's execution" meant that the substitution of counsel "could only be given effect through a stay."

Last week, despite newly discovered forensic evidence, and proof that Dallas County prosecutors falsified evidence to secure a conviction, the Supreme Court denied Terry Edwards' last-minute appeal. He was executed Jan. 26 at 10:17pm, nearly four hours after his scheduled court-ordered time of death.

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