by Jolie McCullough , The Texas Tribune
William Rayford’s lawyers are hoping two recent U.S. Supreme Court cases will stop his execution set for Tuesday night.
In multiple last-minute appeals, the 64-year-old death row inmate claims his sentencing trial in the 1999 murder of his ex-girlfriend was tainted by racial prejudice and that he was wrongly denied federal funding to further investigate evidence that could have persuaded a jury to give him a lighter sentence. His legal team said these issues “mirror” those of the recent cases the high court heard of fellow death row inmates Duane Buck and Carlos Ayestas and should therefore serve as reasons to put off his death.
Rayford has been on death row for 17 years. He was convicted in Dallas County for the kidnapping and death of 44-year-old Carol Hall. In November 1999, Rayford entered Hall’s house and the two began arguing, according to court documents. Hall’s 12-year-old son came into the room, and Rayford stabbed him in the back before chasing Hall as she ran out of the house. When the cops found her body in a nearby culvert later that day, she had been strangled, beaten and stabbed.
Rayford had previously pleaded guilty and served eight years of a 23-year sentence in the 1986 murder of his ex-wife, records show.
“Statistically, you lose more than you win,” said Bruce Anton, Rayford’s lawyer, when asked about his hope for a stay of execution. But he said he is optimistic based on the two Supreme Court cases.
Last February, justices ruled that Buck’s case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black. To sentence someone to death in Texas, the jury must unanimously agree that the person would likely be a future danger to society. Chief Justice John Roberts wrote in the court’s majority opinion that the defense attorney was ineffective by bringing forth the psychologist who made the racial remarks. Buck has since been re-sentenced to life in prison.
“When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record,” Roberts said in the opinion. “Some toxins can be deadly in small doses.”
Rayford, who is also black, presented what he claims is a similar situation in his petition to the Texas Court of Criminal Appeals earlier this month. During his sentencing trial, Rayford’s defense lawyer asked the state’s expert on prison violence if the racial makeup of the unit is something that relates to the number of prison assaults.
“It has a factor on it,” said the Royce Smithey, chief investigator of the state unit that prosecutes crimes in prison, according to court records.
The state appellate court rejected Rayford’s appeal Friday, with Judge Barbara Hervey writing in the majority opinion that the Buck decision was based partially on the specific psychologist who had made the remark, since his testimony on race and danger had been knocked down by the high court in another case involving a Hispanic inmate. She also said that Smithey did not give any opinions about a particular race or how race factored into prison violence, unlike in Buck’s case.
“I do not read Buck as holding that defense counsel is ineffective for merely allowing a witness to use the word “race” in his or her testimony about future dangerousness,” Hervey wrote in her concurring opinion, which was joined by Presiding Judge Sharon Keller and judges Michael Keasler and David Newell.
Judge Elsa Alcala, known death penalty critic on the all-Republican court, said in a dissent that she would stop the execution until the court could fully examine the claim that Rayford’s attorney was ineffective for evoking race-based testimony in the trial, pointing to Roberts’ statement about the power of small doses.
“It is unconstitutional to carry out a death sentence that was imposed on the basis of a powerful racial stereotype — that of black men as ‘violence prone,’” she wrote, joined by Judge Scott Walker.
Rayford has appealed the court’s ruling to the U.S. Supreme Court, which had not yet ruled in the case Monday.
In federal district court, Anton is putting more weight into the argument that he claims matches that of Carlos Ayestas, whose case was heard by the high court in October but has yet to see a ruling.
Ayestas’ lawyers argued that he was wrongfully denied funding from the federal courts during later appeals to investigate previously unexplored evidence that could sway a jury to opt for the lesser sentence of life in prison. The 5th U.S. Circuit Court of Appeals, which handles cases from Texas, requires appellants to show a “substantial need” for the funding. Ayestas’ lawyer said the rule forces the court to guess what the investigation will find and whether that supposed evidence would have made any difference to a jury.
Rayford was initially denied such funding, but a judge granted him money in September to allow him to compile an accurate and up-to-date mental evaluation for his petition to the state’s parole board and Gov. Greg Abbott asking for a stay of execution. (The board unanimously voted against any such relief Friday, and Abbott, a Republican, has not delayed an execution since taking office).
The investigation that stemmed from that funding led Rayford back to court this month with a new appeal. His lawyers presented previously undisclosed claims of brain damage due to lead poisoning, stemming from decades-old bullets and bullet fragments in his body and childhood exposure to contaminated water. He argues his lawyers failed him by not investigating and presenting the evidence to his jury when he was sentenced.
Texas disagrees, saying even though lead poisoning wasn’t mentioned at trial, his defense did present evidence of substance abuse, a troubled childhood and mental illness. The defense’s doctor who examined Rayford testified that he would not pose a future danger to prison society.
“Rayford simply cannot show that he was prejudiced because his trial counsel failed to present evidence that his mental deficiencies were of a different origin,” wrote Texas Assistant Attorney General Jay Clendenin.
The federal district court has yet to rule on the appeal, and it could still be appealed to the 5th Circuit and Supreme Court. Rayford’s execution is scheduled for 6 p.m. Tuesday, but it can be delayed until midnight, when the death warrant expires.
If no courts step in, it will be the second execution in Texas and the nation in 2018. Texas is also set to be the third execution in the country as well, with the execution of John Battaglia set for Thursday.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2018/01/30/texas-man-set-execution-hopes-supreme-court-cases-will-stop-his-death/ .
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