A Murder in Texas
Part Seven – The Appeals
Of course, as is the case in ALL death penalty cases, an immediate appeal is filed and this was certainly so in the case of Johnny Frank Garrett.
Unfortunately, due to lack of resources on the road, I haven’t been able to access all of those records.
Suffice it to say that all appeals in the case were eventually denied.
The following is the final finding of the appelate court.
Johnny Frank Garrett, Petitioner-appellant, v. James A. Lynaugh, Director, Texas Department of Corrections,respondent- Appellee, 842 F.2d 113 (5th Cir. 1988)
U.S. Court of Appeals for the Fifth Circuit – 842 F.2d 113 (5th Cir. 1988)
March 31, 1988
Jeff Blackburn, Selden Hale, Amarillo, Tex., for petitioner-appellant.
Robert S. Walt, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court For the Northern District of Texas.
Before GEE, JOHNSON, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Petitioner, Johnny Frank Garrett, appeals from the denial of his habeas corpus petition under 28 U.S.C. § 2254. Garrett is under a sentence of death on his conviction for murder committed during the course of rape and burglary. The district court denied habeas relief but granted a stay of execution and a certificate of probable cause. After thorough consideration of petitioner’s contentions, we affirm the denial of the writ of habeas corpus and dissolve the stay of execution.
The conviction and sentence were affirmed by the Texas Court of Criminal Appeals. Garrett v. State, 682 S.W.2d 301 (Tex.Crim.App.1984). A petition for writ of certiorari was denied by the United States Supreme Court. Garrett v. Texas, 471 U.S. 1009, 105 S. Ct. 1876, 85 L. Ed. 2d 168 (1985).
Garrett then sought habeas relief in the state court on a number of grounds. All relief was denied by the trial court and the Texas Court of Criminal Appeals. The instant federal petition for habeas relief was initially filed in the Southern District of Texas. A stay of execution was entered and the action was transferred to the Northern District of Texas. Following an evidentiary hearing, the district court denied habeas relief on all claims. The trial court rescheduled Garrett’s execution for October 30, 1987, but the district court granted a stay of that execution pending appeal and also granted petitioner’s application for a certificate of probable cause.
Although Garrett sought habeas relief on a number of claims in the district court, he restricts his appeal to this court to a single claim: By destroying potentially exculpatory evidence, the state denied him a fair trial and deprived him of due process of law.II.
Garrett argues that the state deprived Garrett of potentially exculpatory evidence because the state pathologist failed to test the deceased’s vaginal contents for the rapist’s blood type or to preserve the specimen so that the defense could have those tests conducted.
The district court held a hearing on the facts surrounding the autopsy. When Sister Benz’ body was recovered from the funeral home it was sent to Dr. Ralph Erdmann, a pathologist on retainer with Potter County, for an autopsy. After Dr. Erdmann found external evidence of a rape he injected saline solution into the vaginal vault and recovered a small quantity of fluid. From these vaginal washings Dr. Erdmann tested for the presence of sperm and prostate secretions and found both. In making these tests, Dr. Erdmann used the entire vaginal contents sample he recovered from Sister Benz’ body.
Garrett’s argument is straightforward: If Dr. Erdmann had tested the samples for the assailant’s blood type and those tests had revealed that the assailant had a blood type different from Garrett’s, the evidence would have been absolutely exculpatory. Garrett argues that under California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), the failure of the state to make this test or preserve enough of the sample for Garrett to conduct the test denied him a fundamentally fair trial.
In Trombetta the Court considered whether the due process clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers for later inspection and tests by the accused in order for the state to admit the results of breath analysis tests in criminal prosecutions. The Court held that the Constitution requires a state to preserve ” [material] evidence that might be expected to play a significant role in the suspect’s defense.” Id. at 489, 104 S. Ct. at 2534. Evidence meets the materiality standard for these purposes if it possesses an “exculpatory value that was apparent before the evidence was destroyed, and be of such nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id.
Garrett’s reliance on Trombetta is misplaced. No evidence was destroyed in the Trombetta sense. Dr. Erdmann completely used the available sample in making the tests that he considered necessary. Stated another way, there was in this case no evidence (whether or not potentially exculpatory) left for the state to preserve once Dr. Erdmann had used up the sample. Trombetta does not require a state to conduct its investigation in any particular way or perform tests on raw data in any particular order. Nor does it require a state to conduct additional or more comprehensive tests.
The district court correctly denied habeas relief on this claim.
The district court’s denial of habeas corpus relief to the petitioner is affirmed; the stay of execution is vacated.
AFFIRMED. STAY VACATED.
On January 6, 1992, within an hour of his appointed time, then governor, Ann Richards, granted a 30 day “reprieve,” following appeals for clemency from Pope John Paul and the nuns from the victim’s convent, along with a letter from the Texas Bishops requesting a stay of execution.
“Statement Of Texas Bishops Against The Execution Of Johnny Frank Garrett
We the undersigned Catholic bishops of Texas, gathered in prayer at Christ the King Retreat Center in San Angelo, urge that a stay of execution be granted to Johnny Frank Garrett, who is scheduled to die by lethal injection this coming Tuesday, Jan. 7. for the murder of Sister Tadea Benz, a Franciscan nun in Amarillo on Oct. 31. 1981.
While we abhor the brutal murder of Sister Tadea, we continue to be opposed to the death penalty. Our opposition to capital punishment is based on our strong belief in the inherent sacredness of human life and on our obligation to be faithful to the reaching of Jesus Christ, which calls us to reconciliation and to forgiveness of those who wrong us.
In the case of Johnny Frank Garrett, we believe that the courts should take into consideration not only the fact that he was a juvenile at the time of the crime, but also that there is evidence, not admitted in the previous court proceedings, that he had suffered brain damage, was abused as a child and was addicted to drugs. He is now diagnosed as chronically psychotic.
We raise our voices in union With those of Pope John Paul II, of Archbishop Agostino Cacciavillan, papal pro-nuncio to the United States, as well as with the Voices of Amnesty International, the Franciscan Sisters of Mary Immaculate of Amarillo and with the voices of other religious communities, as well as with other groups and individuals.
Our concern is raised to a new level in this case because, if executed, Garrett will be the third individual suffering the death penalty in Texas for a crime committed while a juvenile.
We, as religious leaders, are gravely concerned about the increase of violence in our state. Violence seems to be begetting more violence. At the same time, there is no compelling evidence that the death penalty is deterring murder in Texas or elsewhere.
We address this appeal first to Federal Judge Mary Lou Robinson of Amarillo, asking her to grant a new trial for Garrett so important evidence can be admitted to the court process. Second, we appeal to the Texas Board of Pardons and Paroles to commute Garrett’s death penalty to life imprisonment without parole. We further seek the support of Gov. Ann Richards for this request.
This appeal is raised through Archbishop Patrick Flores, archbishop of the Archdiocese of San Antonio representing the undersigned bishops of the state of Texas gathered in prayer in San Angelo.”
However, after a grossly inadequate clemency hearing, the Texas Board of Pardons and Paroles voted unanimously not to recommend commutation of his death sentence and the execution of Johnny Frank Garrett was allowed to proceed.
But, as I said before, it’s STILL not over!
Monday – Some Strange Endings