EXECUTED MAY 2002

BY FAX: 512-463-1849

May 17, 2002

Mr. Gerald Garrett
Chairman, Texas Board of Pardons and Paroles
Price Daniel, Sr. Building
209 W. 14th Street, Suite 500
Austin, Texas 78701

Re: Johnny Martinez

Dear Chairman Garrett:

On behalf of the American Civil Liberties Union, we urge you to stay the execution of Jonny Martinez, currently scheduled for May 22, 2002 and to commute his death sentence to life imprisonment without parole.  Such relief is merited by the circumstances of Mr. Martinez's case. Mr. Martinez was convicted of murdering a convenience store clerk after a night of heavy drinking and he was sentenced to death for the crime.  Texas should consider two important factors when deciding whether to commute his sentence to life in prison without parole.  First, Mr. Martinez was not afforded the effective assistance of counsel during critical stages of his case.  Second, Mr. Martinez simply does not pose a threat of future danger to other inmates.  The crime was Mr. Martinez's first encounter with the criminal justice system and he had no prior criminal history.  

Under the United States Constitution, Mr. Martinez had the right to counsel and that counsel would perform his duties at an objective standard of reasonableness.  In this case, Mr. Martinez's counsel performed far below the objective reasonable standard during critical stages of his trial.  During the punishment stage of the trial the State's case was weak and the State's attorneys presented no evidence.  The defense, however, presented only brief and superficial testimony from some of Martinez's friends and family members.  The defense had an opportunity to present more mitigating evidence as to Mr. Martinez's non-violent nature but failed to do so.  The failure to present such evidence was consistent with counsel's approach to Mr. Martinez's case.  State habeas counsel consistently showed little interest in his case, never once visiting Mr. Martinez and staying out of contact with him for as long as eight months.

After the sentencing phase of the trial was complete and Mr. Martinez failed in the Texas appeal process, Mr. Martinez's attorney was responsible for preparing a writ at the state habeas level.  In his preparation, Mr. Martinez's counsel hired no experts or investigators, never spoke to any family members or friends, and performed no investigation himself.  The entire application was a mere six pages long and counsel did not even send a copy to Mr. Martinez for review until after it had been denied.  The superficiality of the writ underscores the inadequacy of Mr. Martinez's habeas counsel.  After a judge on Texas' highest criminal court criticized the writ, state habeas counsel admitted that he never handled such a writ before, and even asked the Court to convene a hearing into whether he had competently represented Mr. Martinez.

The second factor that Texas should consider is whether Mr. Martinez poses a threat of future dangerousness.  In order for a jury to sentence someone to death, there must be sufficient evidence to support a finding of future dangerousness.  During the punishment phase of the trial the State re-offered all evidence from the guilt/innocence phase of the trial, and presented no further evidence.  That is, the State presented no psychiatric or character evidence at any stage of the trial that would suggest that Mr. Martinez was violent and posed a threat of future dangerousness.  Mr. Martinez did introduce some evidence of his non-violent nature.  The State, on cross-examination, elicited testimony of a physical confrontation Mr. Martinez was involved in during high school.  No other evidence was introduced regarding Mr. Martinez's future dangerousness.

In affirming the death penalty sentence, the Court of Criminal Appeals of Texas argued that Mr. Martinez habitually and blatantly disobeyed the law.  The violations the Court referred to were Mr. Martinez's underage drinking and shoplifting.  The State, however, never introduced evidence of any prior criminal convictions of Mr. Martinez.  Further, the infractions to which the Court referred do not rise to the level of severity to indicate a propensity for violence.

The ACLU opposes capital punishment in all cases as a barbarous anachronism and in violation of the Constitution.  Mr. Martinez's case particularly merits clemency.  Given the irrevocable consequences of a death sentence, we submit that Texas should afford Mr. Martinez full consideration for his plea to commute his sentence to life in prison without parole.

Sincerely,

Diann Rust-Tierney
ACLU Capital Punishment Project

William Harrel
ACLU of Texas

Bart T. East*
Pro Bono Counsel
Squire, Sanders & Dempsey L.L.P.