Death Watch: The Constitutionality of Intent

What if the people you killed were not who you hoped to kill?

Erick Davila is scheduled to die on Wednesday, April 25. The 31-year-old from Fort Worth was convicted of capital murder for the 2008 deaths of 5-year-old Queshawn Stevenson and her grandmother Annette at a child's birthday party. Though the U.S. Supreme Court ruled against Davila last June, his lawyers Jonathan Landers and Seth Kretzer on Friday filed an appeal at the high court to stay the execution.

Like the first effort, this appeal challenges the Texas Court of Crim­in­al Appeals' April 9 decision to deny Davila's most recent appeal in that court, which argued that, among other things, his appellate attorney David Richards provided ineffective counsel. In particular, Davila's current attorneys argue, Richards never mentioned Davila's assertion that on the day he shot the Stevensons, he was "dangerously intoxicated" and shot them unintentionally; Davila had entered the party and began shooting, but has maintained that he intended to shoot a single rival gang member. Richards also did not argue that should Davila's story be true, he wouldn't have been eligible for a capital murder conviction and therefore the death sentence. And the trial jury was never informed that Davila could only be sentenced to death if they believed he intended to kill multiple people. Seeing all this, Justice Clarence Thomas wrote in SCOTUS's first opinion that because a prisoner "does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default."

Landers and Kretzer on Monday filed a successor petition with the 5th Circuit Court of Appeals seeking permission to file a second appeal and motion to stay Davila's execution. Meanwhile, Davila's petition for clemency is pending. In February, Gov. Greg Abbott commuted Thomas Whit­ak­er's death sentence one hour before his scheduled execution, but that was the first such commutation in Texas in over a decade, and the circumstances were rather unique. Kretzer told me Mon­day he's "hopeful," but he also acknowledged, "all I can do is make the legal arguments. Then I leave it to powers-that-be to resolve them. But we will fight for Mr. Davila and all his constitutional rights to the last hour of the last day."

Death Row Details

SCOTUS on Monday refused without comment to hear the case of Daniel Acker, convicted of murdering his girlfriend Marquetta George in 2000. That decision will likely bring a death warrant to Hopkins Coun­ty. Next on the state's schedule is Juan Castillo, scheduled to die on May 16. The San Antonio man is on his fourth execution date. He had a May 2017 date withdrawn on a technicality associated with the filing of his death warrant; Hurricane Harvey caused the second to be rescheduled; and a Dec­em­ber date was called off due to claims of false testimony.

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Death Watch, Erick Davila, Queshawn Stevenson, Annette Stevenson, Jonathan Landers, Seth Kretzer, David Richards, Daniel Acker, Juan Castillo

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