Death Watch: Failures at Trial Anchor Last-Chance Appeal for Sparks

Robert Sparks was deep in the throes of a psychotic break at the time of his crimes – that is not disputed. He was hearing voices; he thought his wife was trying to poison him. He stabbed her and his two stepsons to death and raped his two stepdaughters, but he felt he'd be exonerated. Instead he was sentenced to death in 2008 in one of the most emotionally charged trials in the history of Dallas County. Now, his execution date approaches on Wednesday, Sept. 25.

Claiming insanity isn't a good strategy to overturn a death sentence; by law, defendants have to be not merely mentally ill, but uncomprehending of what is happening to them. Thus Sparks' lawyers, in what could be his final appeal before the U.S. Supreme Court, are looking elsewhere: to the flawed testimony of expert witness A.P. Merillat and inappropriate conduct of bailiff Bobby Moorehead.

Merillat was for many years a go-to witness for prosecutors in Texas in capital murder cases. His specialty was convincing juries that a defendant would be a future danger, a requirement to sentence a person to death. His testimony, according to the appeal, helped send at least 15 men to death row, including Sparks. But Merillat's star was tarnished in 2012 when the Texas Court of Criminal Appeals condemned his testimony as false in the trials of Adrian Estrada and Manuel Velez. In both cases, Merillat assured jurors that without a death sentence the defendants would land in general population, able to attack fellow prisoners in the mess hall, the library, the visitation area. But Merillat was mistaken; because of the viciousness of their crimes, both prisoners would have been segregated. The CCA knocked their death sentences down to life without parole, and Merillat was out of a job as an expert witness.

As a witness for the prosecution in Sparks' trial, Merillat again insisted Sparks would land in general population. Only upon cross-examination did he admit, reluctantly, that Sparks might be segregated from other prisoners. But at the end of cross-examination, he bizarrely doubled down on his original message. In Sparks' prior appeals, the CCA and 5th U.S. Circuit Court of Appeals ruled, in the words of the current filing, that "Merillat's false testimony was corrected when he briefly flirted with the truth on cross examination." Sparks' lawyers say Merillat's testimony, taken as a whole, left the jury with a false impression, thus violating due process.

The other major claim in Sparks' appeal concerns the conduct of bailiff Moorehead, who wore a black tie with a white needle emblazoned on it the last day of the trial. His attorneys argue the display violated Sparks' right to an impartial jury, a claim the CCA and 5CA have previously rejected, ruling the defense failed to prove that the jury saw the tie. But the appeal notes that Moorehead sat directly behind Sparks, 10 yards from the jury – "the media present at trial saw the tie, defense counsel saw the tie ... and portions of the jury box provided an unobstructed view of the tie."

If SCOTUS does not act, Sparks will be the third man executed at Huntsville this month – Mark Soliz was put to death on Sept. 10 and Billy Crutsinger on Sept. 4 – and the seventh since the start of the year. Another eight are scheduled to die between now and December 11. To date, 564 Texans have died at the hands of the state since the death penalty was reinstated in 1976.