The state's flip-flops on testimony have made a mockery of the system
Capital punishment is always a controversial issue. A fair trial should not be. Joseph Nichols' execution should be halted.
The murder of Claude Shaffer Jr. at Joseph's Delicatessen near downtown Houston on Oct. 13, 1980, was a heinous crime by any measure, but if Joseph Nichols is executed by the state as planned on Wednesday, it will also be a terrible injustice. Nichols has been on death row since 1982, convicted of firing the single bullet that killed Claude Shaffer.
At Nichols' trial, the state knew that Nichols did not shoot the single bullet that killed Claude Schaffer, because the state had previously tried and convicted Willie Ray Williams for firing the same single bullet. In January of 1981, Williams, who had confessed to shooting Shaffer, was tried, convicted and sentenced to death as the shooter. Williams has since been executed. According to the trial transcripts, the state argued: "Willie Williams is the individual who killed Claude Schaffer. That's all there is to it. It is scientific. It is complete. It is final and it is evidence."
Six months after Williams' conviction, Joseph Nichols' first trial began. Nichols was tried as an accomplice under the law of parties, through which a person can be held criminally responsible for an offense committed by the conduct of another under certain circumstances. The jury found him guilty but hung in the punishment phase. After the trial, the prosecutor questioned some of the jurors at a local bar. They stated they were reluctant to impose the death penalty because, as the prosecutors had admitted, Nichols was not the shooter.
Six months later, in February 1982, Nichols' second trial began. This time the state changed its story, and Nichols was tried as the shooter and not the accomplice. He was convicted and sentenced to death. In complete contradiction to the state's previous argument, the trial transcripts reveal that the state contended: "Willie Ray Williams could not have shot [Shaffer]. And I submit to you from this evidence [Nichols] fired the fatal bullet that killed the man in cold blood and he should answer for that."
The prosecution further argued: "You should think about justice when you think about this case. Is it fair and equal for Willie Williams to sit up there on death row when this man [Nichols] planned the whole thing and fired the fatal shot?"
It is an undisputed fact that a single shot killed Shaffer. For their convenience, Harris County prosecutors changed the facts from day to day and case to case, making a mockery of our justice system. This apparently doesn't matter to the state of Texas, as it refuses to give Nichols a new trial.
The state also suppressed evidence favorable to Nichols' defense. There were two witnesses to the crime, Cindy Johnson and Teresa Ishman. Johnson was the state's star witness because she testified to witnessing the entire murder. However, Ishman informed the police that Johnson "could not have seen the fatal shot being fired, because she (Johnson) was hidden in the bathroom when the shooting started." The state suppressed the identity and location of Ishman from the defense so that she could not testify at the trial.
The state of Texas now claims her testimony would not have made a difference and does not matter. If the state doesn't think Ishman's testimony would have altered the outcome of the trial, one has to wonder why they hid her true identity and whereabouts from the defense — and further, why they refuse to grant Nichols a new trial, one in which the jury hears both witnesses, instead of just one.
Joseph Nichols' court-appointed appellate attorney was shamefully negligent. After two years and being granted 11 extensions for filing an appellate brief, Nichols' attorney ignored the orders of the Texas Court of Criminal Appeals. He was held in contempt, arrested and put in jail. Nichols' appellate brief was written by his attorney while incarcerated. His attorney was so inept he was ultimately disbarred, but the damage to Nichols' case was done. The state doesn't think this matters either, even though the U.S. Constitution guarantees its citizens effective counsel.
Capital punishment is always a controversial issue, a fair trial shouldn't be. It is simply outrageous that Nichols' attorney was in jail while writing his trial brief. It is also fair to conclude that the judge who failed to replace Nichols' counsel had little regard for due process, much less a human life. The state deliberately misled the jury by claiming two people fired the same bullet. That is simply dishonest. Finally, suppressing the identity of a witness whose testimony directly contradicts that of the only other witness is the ultimate corruption of justice.
According to the state of Texas, none of these issues matters. If a human life and the U.S. Constitution don't matter, what does? Joseph Nichols deserves a new trial.
Nichols is scheduled to be executed on Wednesday. Anyone who feels these issues do matter should immediately contact the Texas Board of Pardons and Paroles and the governor's office. Unless the U.S. Supreme Court intervenes, only Gov. Rick Perry can stop this terrible injustice now.
Published with author's permission. Lubetkin, a native Houstonian, is a documentary filmmaker. He can be e-mailed at alubetkin@gmail. com.
Office of the Governor
P.O. Box 12428
Austin, Texas 78711-2428