ustxtxb_obs_2004_11_05_50_00030-00000_000.pdf

he said, “Oh, when Texas has you, they don’t want to let you go.” Ifinished law school in the spring of ’89 and came to Texas. I arrived in Austin on Juneteenth and have been doing death-penalty work more or less full time since then. I’ve had clients executed whom I believe were innocent. Ernie’s case is unique because it’s the only time that I have been involved with a case where we not only believed our client would walk free, we actually lived to see it. Whenever I would visit clients on death row, I’d try to end my day with Ernie, the one guy that I felt reasonably confident I would not have to eventually see killed at the hands of the state. I felt free to talk with him about what he hoped to do when he was released. I avoid those conversations with other clients, even the ones who also say, “I didn’t do it. I was wrongly convicted. My trial was unfair.” You think that maybe there’s a chance that the court will agree and this person may get out one day, but that’s so remote. So often, meeting with clients on death row is tough emotionally. It’s tough because it’s so far away that we don’t get to go as often as we would like to. And the courts being what they are and the law being what it is, often we are bringing bad news. It’s hard to maintain hope when you’re telling them, “Well, we just got turned down, but we might win the next one.” There’s only so many times you can tell that to somebody before they really stop believing it. That’s my normal experience. With Ernie it was so different. I would organize my visits at death row so that I could leave feeling like there’s someone who’s going to survive this. The case against him was never strong. He is the quintessential guy who was in the wrong place at the wrong time. He was one of two survivors of a house fire that killed two other people. Suspicion focused on him early on because he was not in as much evident physical distress when the fire department and the police arrived as his cousin, the other survivor. Based on that, they drew the conclusion that he must have set the fire and gotten out before it got really bad because he’s At some point, they stopped giving him medication for back pain and started giving him very heavy anti-psychotic medication …. in extraordinarily large quantities…. Ernie was never told. not coughing up smoke and unable to breathe. Everything from that point was sort of an avalanche of negative circumstances. The thing that hurt him the most was that at some pointand we were never able to ascertain why this happenedhis medication was changed. Ernie is a longtime oilfield worker who had injured his back on several occasions and had four separate surgeries on his back. At some point, they stopped giving him medication for back pain and started giving him very heavy anti-psychotic medication of the sort that would be indicated for a person who was acutely mentally ill. Perphenazine and Haldol were the two main drugs that he was receiving and in extraordinarily large quantities. The jail physician later acknowledged that it was his signature on the orders, but said he had no independent recollection of why the medication was ordered and had no documentation of why it would have been changed in that way. Ernie was never told. During the appeals process we had a psychopharmacologist look at the records, and he said these dosages are multiples of what you would give to an acutely psychotic person. The practical effect was that it dulled all of his senses. I keep describing it as being “zombified,” and that’s not an unfair description. Essentially, these are massive tranquilizers. While we were working on Ernie’s first post-conviction appeal, he was interviewed by a psychologist. One of the questions that psychologists routinely ask people was whether they’ve ever been interviewed before by a mental health expert. And Ernie said, “Well, yeah, I remember I talked to a psychologist before my trial. He came to the jail and spent a long time with me. But I never heard anything else about it.” With that information we were able to get the jail visiting records and identified one of the names on the list as a psychologist in San Angelo. We eventually discovered that the prosecutor had sent this psychologist to examine Ernie before the trial. The expectation was that he would come back and say that Ernie was a psychopath, that he was highly dangerous. Then they could present that testimony at a sentencing hearing if Ernie was convicted. Instead, the psychologist came back and said, “Based on my interview with this guy, I don’t think he’s dangerous at all. I don’t think he’s going to be a threat to society even if he did this crime because he doesn’t have a history of violence. He is a completely peaceful prisoner. He doesn’t suffer from any mental illness.” It’s worth noting that when this first arose as an issue in the appeals process, the response from the prosecution was that it didn’t happenthey didn’t hire him, they didn’t send him in to see Ernie in prison. And the psychologist said, “Well, that’s funny because here’s the bill that I sent them that they paid and here’s the FedEx receipt from when I sent them the report. And it’s signed for by the prosecutor?’ So, we basically demonstrated in the state post-conviction proceeding that the state was still lying about what had happened. One of the sad stories of this case is how long it took, once some of the pieces started coming together, for Ernie 30 THE TEXAS OBSERVER 11/5/04