The Austin Chronicle

Death Watch: Crutsinger Seeks Last-Ditch SCOTUS Appeal

Following the Aug. 21 execution of Larry Swearingen, Crutsinger could be the fifth Texan killed this year

By Sarah Marloff, August 30, 2019, News

By all prior accounts, Billy Crutsinger confessed to the double homicide of Pearl Magouirk and her daughter Pat Syren shortly after he was arrested in Galveston. Though he consented to the DNA testing used to convict him at his 2003 trial, Crutsinger has continued to fight his death sentence, even as his options dwindle and his Sept. 4 execution date nears.

On Aug. 26, the 5th U.S. Circuit Court of Appeals rejected Crutsinger's requests for both an appeal and a stay of execution, with Circuit Judge James E. Graves dissenting in each case. Days earlier, the Texas Court of Criminal Appeals also denied Crutsinger a stay as well as his request to "adequately address what it means for a lawyer to be competent when representing a death row inmate," according to his attorney Lydia Brandt, who told the Chronicle that her client "never had a competent lawyer" throughout his initial state appeals.

Brandt, who first took Crutsinger's case in 2008, said his prior appellate counsel Richard Alley, who died in 2017, was "great as a word processor, who cut-and-pasted claims from one client's pleading into the next client's pleading and into the next, and the next, and the next." The question now before the U.S. Supreme Court, in a petition filed Aug. 27 (in response to the CCA ruling), is whether his appointment by the trial court violated Crutsinger's 14th Amendment rights. Brandt asserts that Alley had a "substantial history in the state and federal courts of a lack of professionalism, unethical behavior, and an inability to competently represent" death row clients, based on her review of numerous cases of Alley's from 1999 to 2007. (The SCOTUS filing features several pages of charts outlining issues that had been "reproduced by Alley verbatim ... or were substantially similar" to the arguments made in Crutsinger's appeals.)

Under Texas law, those seeking relief from the death penalty are entitled to representation by "competent counsel," which Brandt now argues Crutsinger was denied in 2003, when Alley was appointed to his case; his rights are now further infringed because he has "no avenue to present documented evidence" of Alley's incompetence. Graves agreed in his dissent: "Crutsinger must prove his claim of ineffective assistance of counsel to ... establish that 'investigative, expert, or other services are reasonably necessary' to then be able to prove his claim of ineffective assistance of counsel. Such a circular application is illogical." On Aug. 27, Brandt confirmed that she's working on an additional request for relief from SCOTUS to be filed in response to the 5CA's "adverse decision" Monday night.

Without such relief, Crutsinger will be the fifth man executed by the state this year, following the Aug. 21 death of Larry Swearingen, whose final motion, filed with SCOTUS that morning, claimed the Texas Department of Public Safety had "recanted and revised" "critical evidence" used to convict him. According to his co-counsel at the Innocence Project, DPS "provided inaccurate testimony" and has "conceded that its trace analyst should not have testified that the two pieces of pantyhose entered into evidence" – one the murder weapon used to strangle 19-year-old Melissa Trotter in December 1998; the other allegedly found in Swearingen's residence – were a "'unique' match or a match 'to the exclusion of all other pantyhose.'" SCOTUS denied the motion that evening.

Earlier this month, however, the 5CA granted Dexter Johnson a last-minute stay based on new arguments that he is mentally unfit to be executed. It's the second stay Johnson's received this year; in April, a federal judge barred his execution to give his new counsel more time to review the case. Johnson was found guilty of capital murder in 2007 for the robbery, rape, and double homicide of Maria Aparece and Huy Ngo.

But Huntsville isn't seeing a lull any time soon; Mark Soliz is scheduled to die Sept. 10, with another nine men set for lethal injection before the year ends.

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