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https://www.austinchronicle.com/news/2020-01-31/mitigation-appeal-denied-abel-ochoa-set-to-die/

Death Watch: Mitigation Appeal Denied, Abel Ochoa Set to Die

He’ll become the first person executed in Texas in 2020

By Brant Bingamon, January 31, 2020, News

As they left church with their two daughters in August of 2002, Abel Ochoa asked his wife, Cecilia, for $10. He'd been off crack for two weeks and was craving a rock. She gave in to his pestering, and when they got home Ochoa smoked the crack in the backyard. Two of Cecilia's sisters came over and sat in the living room, talking with her and their father and playing with the kids.

Lying on the bed after smoking the crack, Ochoa craved more. But he knew his wife wouldn't hand over another $10 bill. In a confession to police, Ochoa later wrote, "I got up and went to my closet and I got my Ruger 9mm gun. The gun was already loaded and I walked into the living room where my family was. I started shooting while they were all sitting on the couch."

Ochoa killed Cecilia, their 9-month-old daughter Anahi, his father-in-law Bartolo Alvizo, and his sister-in-law Jacqueline Smith. He gravely wounded his sister-in-law Alma Alvizo. Crystal, his 7-year-old daughter, had seen the murders. She ran, but Ochoa chased her into the kitchen and shot her four times. He grabbed his wife's purse, drove to an ATM, and while trying to withdraw money was arrested by police, less than 30 minutes after killing his family.

At the trial the next year, Ochoa's lawyer said his client, who'd never had so much as a parking ticket before, had suffered from drug-induced delirium at the time of the murders. The Dallas jury was unpersuaded and found Ochoa guilty. Deciding he would continue to be dangerous and that nothing from his background or his mental state mitigated his guilt, they sentenced him to death. He's set to be executed Feb. 6.

Since his conviction, Ochoa's appeals have stressed that his trial lawyers didn't find and present enough evidence of his difficult childhood. He has repeatedly asked for, and been denied, funds to redo his mitigation defense, which if successful could see his sentence reduced to life without parole. Mitigation defenses in capital cases are frequently inadequate or absent entirely; this area of law continues to evolve, so it's fertile ground for an appeal.

Ochoa's appellate attorneys had hoped the U.S. Supreme Court's recent ruling in Ayestas v. Davis would help his case. At his original trial, Carlos Ayes­tas had refused to allow his attorneys to contact his family; with little material to work with, they wound up spending only two minutes on the trial's punishment phase. Ayestas was later diagnosed with schizophrenia and found to have been abused as a child – both powerful mitigating circumstances. However, the 5th U.S. Cir­cuit Court of Appeals refused his counsel's request for funds to put together a mitigation case. That decision was overruled by SCOTUS in March 2018, with Justice Samuel Alito writing that the funding was "reasonably necessary" for Ayestas to have a good chance to prove his case.

Ochoa's attorneys subsequently argued that the 5CA should apply the same "reasonably necessary" standard to his case, saying further investigation might show that Ochoa had been sexually abused as a child or was mentally ill. In late 2018, they declined, ruling that unlike Ayestas, Ochoa had actually received a mitigation defense at trial. Sixteen witnesses had been called during his punishment phase, including his father, who admitted he had been an alcoholic and had beaten his wife when Ochoa was young.

In October 2019, SCOTUS refused to review Ochoa's case; unless another court intervenes or he is granted clemency, he'll be put to death next week, becoming the first person executed in Texas in 2020.

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