soraya
05-02-2002, 04:35 AM
Dear Friends,
Please find attached the model of the protestation letter addressed to Mr. Rick Perry, Governor of Texas, urging him to commute Brian’s death sentence. Please copy and paste this letter, sign it and send it via fax to the Governor's office at the soonest.
Please forward it to as many people as possible.
You may also write a brief letter of less than 250 words to:
Letters to the Editor
Houston Chronicle
801 Texas Ave.
Houston, Texas 77002
e-mail: online@chron.com
Thank you very much in advance for your concern and precious help in this matter
Sincerely
Danièle Dagand
Governor Rick Perry
Office of the Governor
State Capitol
P.O. Box 12428
Austin, Texas 78711
FAX- 1-512-463-1849
Dear Governor,
Brian E. Davis, age 33, is scheduled to be executed in Texas on May 7, 2002. He was sentenced to death in June 1992 for the murder of Michael Foster committed in August 1991.
An actual innocence claim was submitted to the Texas Court of Criminal Appeals on April 15, 2002. On April 29, 2002 the Texas CCA dismissed the writ of habeas corpus and denied a stay of the execution scheduled for May 7, 2002.
Brian Davis’ claim of evidence is supported by numerous facts:
On August 13, 1991, the body of Michael Foster was found at his apartment around noon by his neighbor. Dr. Eduardo Bellas, an assistant medical examiner for Harris County, determined that Mr. Foster had been stabbed a total of 11 times, of these 10 were fatal stab wounds. All stab wounds were consistent with being inflicted by one knife, having 1 sharp edge and 1 blunt edge. The wounds were not inflicted with a dagger type knife with 2 sharp edges. Dr. Bellas testified that Foster died sometime after 1:00am on August 13, 1991.
A little after 2:00am on August 11, 1991, Foster was seen leaving the Pik 'N Pak with a white male with shoulder length hair and a thin red headed female in an old Camaro. Brian Davis was identified later primarily by a single photo of a tattoo shown to the owner of the Pik 'N Pak; he could only tentatively pick him out from a photo spread. Tina McDonald was identified from photos shown to the owner.
On August 17, 1991, Brian and Tina were arrested on an unrelated charge and taken to Harris County jail. Both were appointed counsel on this charge. Shortly after their arrest, Detective Smith's investigation of Foster's murder began to focus on Brian and his wife, Tina McDonald. Smith informed Sheriff's Deputy Strickland at the jail of developments in the investigation of Foster's murder. Smith and his partner, Detective Hendrix, made regular visits to Brian and Tina even though both of their attorneys had told the detectives not to contact them without attorneys being present.
Smith and Strickland implemented a plan, which eventually led to Brian giving a videotaped confession. Strickland had the authority to move Brian and Tina around in jail and allowed them to communicate with one another, even though they were co-defendants as well as husband and wife. Smith also discussed the current status of the Foster investigation numerous times during September, October and November 1991 and informed Tina if a case was filed it would be for capital murder. He told her that she had been positively identified as being with Foster the last time he was seen alive, that Foster's property was recovered from her car, that red hair matching hers was found in Foster's hand, and that her handwriting sample was comparable to that found at the crime scene. McDonald admitted to writing on Foster's apartment wall and actually wrote the exact words for the detective. Smith told her all evidence pointed to her and none of the evidence linked Brian to the crime.
Approximately, 6 to 7 times from Sept. 16 to Nov. 19, 2001,Strickland would bring Brian to his office then relay to the jailer on Tina's floor and Tina would call Brian from a phone on her cell block. Tina told Brian she was afraid she would be charged with capital murder because all evidence pointed to her while Brian could not be linked at all. Brian and Tina were also allowed a face to face communication while sitting outside a courtroom.
On November 19, 1991, Brian requested to see Smith and told Smith that he would confess in exchange for immunity for Tina, if he could be moved from administrative segregation, and have a contact visit with Tina, but his main concern was immunity for Tina. Brian was known to have a low IQ and a very strong attachment to Tina with a need to protect her. Smith told Brian he did not have this authority and that he believed Tina was involved in Foster's murder. Brian was moved from administrative segregation shortly after his confession.
On November 21, 1991 Smith took Brian to a magistrate who Mirandized him. These warnings were videotaped. The judge warned Brian that he would be charged with capital murder but Casey O'Brien, an assistant District Attorney, interrupted and said they had not decided what the case should be.
Brian gave a lengthy confession, but at several points on the tape he is clearly confused on the facts. He stated he stabbed Foster with a double-edged dagger at Foster's home, which is contradicted by the testimony of Dr. Bellas regarding the wounds as being inflicted by a single edge with blunt edge knife. Detectives Smith and Hendrix tried to correct Brian on this issue and he states that he stabbed Foster also with a single edged knife. Remember all evidence shows all stab wounds were inflicted with one knife with one single edge.
The time of death described by Brian is also at least 40 hours off. Brian's confession stated the murder occurred early in the morning of August 11, 1991, but Dr. Bellas' testimony places the time of death after 1:00am on August 13. On the videotape, Smith refers to this time disparity as a "problem" and tries to correct Brian's statement somehow to match the physical evidence.
A motion to suppress this confession was made at Brian's trial in June 1992. Tina McDonald was called to testify by Brian's trial attorney, Alan Myrtle, who was involved with his first capital defense. Other than stating her name for the record, Tina exercised her Fifth Amendment right not to testify.
Tina McDonald was never charged with capital murder or any other charge for her involvement in Foster's murder. On June 26, 1992, ten days after Brian was sentenced to death she was granted immunity for any actions regarding Foster and then pled guilty to another offense (aggravated robbery). This offense was the August 17, 1991 attempted robbery and murder of Steven Sherman with a knife. The same assistant District Attorney prosecuted both Brian and Tina.
David Cunningham was appointed by the trial court to represent Brian on direct appeal to the Texas Court of Criminal Appeals and filed his brief on September 1993. On January 27, 1997 the Texas CCA appointed Stephen Taylor to represent Brian in state habeas corpus proceedings under article 11.071. On July 28, 1997, while Brian' s direct appeal was still pending, Taylor filed the Application for Writ of Habeus Corpus without even visiting Brian at the Ellis Unit in Huntsville. Mr. Taylor only brought forth four points presented in the direct appeal prepared by David Cunningham. He seems to have made no attempt to develop any new claims or points to help Brian's appeal.
On January 7, 1998 the Texas CCA affirmed Brian's conviction and sentence on direct appeal. Then on March 10, 1999 the CCA denied the relief requested in the state habeas corpus.
On March 3, 2000, Tina McDonald wrote an affidavit regarding her appearance on the witness stand. She was willing to provide answers but was instructed by the trial judge that she could not plead the fifth to selective questions. She states she would have testified about pressure exerted by Detective Smith and that she was afraid of being filed on for capital murder, because all evidence pointed to her and none to Brian. She also stated she would have testified that she told Brian of her fears through phone calls, letters, and in person and that Brian had written her before his confession stating that he had worked out a deal to confess in return for her immunity.
On March 9, 2000, a second Application for Writ of Habeas Corpus was filed in state court by attorneys retained by Brian's family. This was dismissed by the Texas CCA on September 13, 2000. On March 9, 2000 they also filed his federal Petition for Writ of Habeas Corpus in the U.S. District Court. On September 30, 2001, the District Court dismissed the petition as being procedurally barred. A notice of appeal to the Fifth Circuit Court was never filed by these attorneys even though it is a normal procedure in death penalty cases.
On September 29, 2000 and October 11, 2001, Tina McDonald provided affidavits confessing to the murder of Foster. She states that she and Brian left the Pik 'N Pak, she dropped Brian off at the Red Coach where they were staying, then she drove Foster home. She admits that she stabbed Foster with her buck knife having a single edge and a blunt edge. She states she acted alone and Brian was not involved. Ms. McDonald's affidavits are consistent with the evidence presented at trial by Dr. Bellas, as well as the presence of her hair and handwriting at the crime scene reinforcing her confession Ms. McDonald's confession constitutes a factual basis claim that was unavailable until her statements were drafted. Unfortunately, her statements are subsequent to the dates of filing on Brian's previous state and federal writs. The Texas Court of Criminal Appeals has refused to act on this new evidence and grant a stay of execution. It is our belief that had this evidence been available at trial that no reasonable juror could have found Brian guilty.
The execution of an innocent person violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
On the other hand, the power of executive clemency exists to address errors and inequities in the legal system; For this reason we ask you to consider this new evidence and any mitigating evidence that the jury was not presented.
In the interest of justice, decency, constitutional law, and the reputation of the State of Texas, I urge you to commute Brian Davis’s death sentence.
Respectfully yours
Signature:
Please find attached the model of the protestation letter addressed to Mr. Rick Perry, Governor of Texas, urging him to commute Brian’s death sentence. Please copy and paste this letter, sign it and send it via fax to the Governor's office at the soonest.
Please forward it to as many people as possible.
You may also write a brief letter of less than 250 words to:
Letters to the Editor
Houston Chronicle
801 Texas Ave.
Houston, Texas 77002
e-mail: online@chron.com
Thank you very much in advance for your concern and precious help in this matter
Sincerely
Danièle Dagand
Governor Rick Perry
Office of the Governor
State Capitol
P.O. Box 12428
Austin, Texas 78711
FAX- 1-512-463-1849
Dear Governor,
Brian E. Davis, age 33, is scheduled to be executed in Texas on May 7, 2002. He was sentenced to death in June 1992 for the murder of Michael Foster committed in August 1991.
An actual innocence claim was submitted to the Texas Court of Criminal Appeals on April 15, 2002. On April 29, 2002 the Texas CCA dismissed the writ of habeas corpus and denied a stay of the execution scheduled for May 7, 2002.
Brian Davis’ claim of evidence is supported by numerous facts:
On August 13, 1991, the body of Michael Foster was found at his apartment around noon by his neighbor. Dr. Eduardo Bellas, an assistant medical examiner for Harris County, determined that Mr. Foster had been stabbed a total of 11 times, of these 10 were fatal stab wounds. All stab wounds were consistent with being inflicted by one knife, having 1 sharp edge and 1 blunt edge. The wounds were not inflicted with a dagger type knife with 2 sharp edges. Dr. Bellas testified that Foster died sometime after 1:00am on August 13, 1991.
A little after 2:00am on August 11, 1991, Foster was seen leaving the Pik 'N Pak with a white male with shoulder length hair and a thin red headed female in an old Camaro. Brian Davis was identified later primarily by a single photo of a tattoo shown to the owner of the Pik 'N Pak; he could only tentatively pick him out from a photo spread. Tina McDonald was identified from photos shown to the owner.
On August 17, 1991, Brian and Tina were arrested on an unrelated charge and taken to Harris County jail. Both were appointed counsel on this charge. Shortly after their arrest, Detective Smith's investigation of Foster's murder began to focus on Brian and his wife, Tina McDonald. Smith informed Sheriff's Deputy Strickland at the jail of developments in the investigation of Foster's murder. Smith and his partner, Detective Hendrix, made regular visits to Brian and Tina even though both of their attorneys had told the detectives not to contact them without attorneys being present.
Smith and Strickland implemented a plan, which eventually led to Brian giving a videotaped confession. Strickland had the authority to move Brian and Tina around in jail and allowed them to communicate with one another, even though they were co-defendants as well as husband and wife. Smith also discussed the current status of the Foster investigation numerous times during September, October and November 1991 and informed Tina if a case was filed it would be for capital murder. He told her that she had been positively identified as being with Foster the last time he was seen alive, that Foster's property was recovered from her car, that red hair matching hers was found in Foster's hand, and that her handwriting sample was comparable to that found at the crime scene. McDonald admitted to writing on Foster's apartment wall and actually wrote the exact words for the detective. Smith told her all evidence pointed to her and none of the evidence linked Brian to the crime.
Approximately, 6 to 7 times from Sept. 16 to Nov. 19, 2001,Strickland would bring Brian to his office then relay to the jailer on Tina's floor and Tina would call Brian from a phone on her cell block. Tina told Brian she was afraid she would be charged with capital murder because all evidence pointed to her while Brian could not be linked at all. Brian and Tina were also allowed a face to face communication while sitting outside a courtroom.
On November 19, 1991, Brian requested to see Smith and told Smith that he would confess in exchange for immunity for Tina, if he could be moved from administrative segregation, and have a contact visit with Tina, but his main concern was immunity for Tina. Brian was known to have a low IQ and a very strong attachment to Tina with a need to protect her. Smith told Brian he did not have this authority and that he believed Tina was involved in Foster's murder. Brian was moved from administrative segregation shortly after his confession.
On November 21, 1991 Smith took Brian to a magistrate who Mirandized him. These warnings were videotaped. The judge warned Brian that he would be charged with capital murder but Casey O'Brien, an assistant District Attorney, interrupted and said they had not decided what the case should be.
Brian gave a lengthy confession, but at several points on the tape he is clearly confused on the facts. He stated he stabbed Foster with a double-edged dagger at Foster's home, which is contradicted by the testimony of Dr. Bellas regarding the wounds as being inflicted by a single edge with blunt edge knife. Detectives Smith and Hendrix tried to correct Brian on this issue and he states that he stabbed Foster also with a single edged knife. Remember all evidence shows all stab wounds were inflicted with one knife with one single edge.
The time of death described by Brian is also at least 40 hours off. Brian's confession stated the murder occurred early in the morning of August 11, 1991, but Dr. Bellas' testimony places the time of death after 1:00am on August 13. On the videotape, Smith refers to this time disparity as a "problem" and tries to correct Brian's statement somehow to match the physical evidence.
A motion to suppress this confession was made at Brian's trial in June 1992. Tina McDonald was called to testify by Brian's trial attorney, Alan Myrtle, who was involved with his first capital defense. Other than stating her name for the record, Tina exercised her Fifth Amendment right not to testify.
Tina McDonald was never charged with capital murder or any other charge for her involvement in Foster's murder. On June 26, 1992, ten days after Brian was sentenced to death she was granted immunity for any actions regarding Foster and then pled guilty to another offense (aggravated robbery). This offense was the August 17, 1991 attempted robbery and murder of Steven Sherman with a knife. The same assistant District Attorney prosecuted both Brian and Tina.
David Cunningham was appointed by the trial court to represent Brian on direct appeal to the Texas Court of Criminal Appeals and filed his brief on September 1993. On January 27, 1997 the Texas CCA appointed Stephen Taylor to represent Brian in state habeas corpus proceedings under article 11.071. On July 28, 1997, while Brian' s direct appeal was still pending, Taylor filed the Application for Writ of Habeus Corpus without even visiting Brian at the Ellis Unit in Huntsville. Mr. Taylor only brought forth four points presented in the direct appeal prepared by David Cunningham. He seems to have made no attempt to develop any new claims or points to help Brian's appeal.
On January 7, 1998 the Texas CCA affirmed Brian's conviction and sentence on direct appeal. Then on March 10, 1999 the CCA denied the relief requested in the state habeas corpus.
On March 3, 2000, Tina McDonald wrote an affidavit regarding her appearance on the witness stand. She was willing to provide answers but was instructed by the trial judge that she could not plead the fifth to selective questions. She states she would have testified about pressure exerted by Detective Smith and that she was afraid of being filed on for capital murder, because all evidence pointed to her and none to Brian. She also stated she would have testified that she told Brian of her fears through phone calls, letters, and in person and that Brian had written her before his confession stating that he had worked out a deal to confess in return for her immunity.
On March 9, 2000, a second Application for Writ of Habeas Corpus was filed in state court by attorneys retained by Brian's family. This was dismissed by the Texas CCA on September 13, 2000. On March 9, 2000 they also filed his federal Petition for Writ of Habeas Corpus in the U.S. District Court. On September 30, 2001, the District Court dismissed the petition as being procedurally barred. A notice of appeal to the Fifth Circuit Court was never filed by these attorneys even though it is a normal procedure in death penalty cases.
On September 29, 2000 and October 11, 2001, Tina McDonald provided affidavits confessing to the murder of Foster. She states that she and Brian left the Pik 'N Pak, she dropped Brian off at the Red Coach where they were staying, then she drove Foster home. She admits that she stabbed Foster with her buck knife having a single edge and a blunt edge. She states she acted alone and Brian was not involved. Ms. McDonald's affidavits are consistent with the evidence presented at trial by Dr. Bellas, as well as the presence of her hair and handwriting at the crime scene reinforcing her confession Ms. McDonald's confession constitutes a factual basis claim that was unavailable until her statements were drafted. Unfortunately, her statements are subsequent to the dates of filing on Brian's previous state and federal writs. The Texas Court of Criminal Appeals has refused to act on this new evidence and grant a stay of execution. It is our belief that had this evidence been available at trial that no reasonable juror could have found Brian guilty.
The execution of an innocent person violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
On the other hand, the power of executive clemency exists to address errors and inequities in the legal system; For this reason we ask you to consider this new evidence and any mitigating evidence that the jury was not presented.
In the interest of justice, decency, constitutional law, and the reputation of the State of Texas, I urge you to commute Brian Davis’s death sentence.
Respectfully yours
Signature: