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06-25-2002, 12:41 PM

Etheridge execution on hold

ANGLETON — The state appeals court on Monday delayed Gary Wayne Etheridge’s execution based on claims the judge who once called him a piece of trash should not have signed the execution order.

Etheridge was scheduled to die by lethal injection Thursday for the 1990 murder of Richwood teen-ager Christie Chauviere.

It is the second time Etheridge has won a reprieve within days of a scheduled execution. The first was in November 2000.

The court stopped the execution this time based on an argument filed last week by Etheridge attorney Jim Marcus. The filing claims District Judge J. Ray Gayle III had no right to set the date because he had recused himself from part of the case before and had another defense recusal request pending.

The state Court of Criminal Appeals on Monday delayed the execution to have time to hear the argument. However, a footnote to the order explains that it does not prevent Gayle from “taking any appropriate action” to recuse himself.

Marcus claims Gayle is biased against Etheridge because when he accepted a jury’s recommendation and sentenced Etheridge to death in 1990, Gayle called him a “piece of trash” and “blight on society.”

Gayle later removed himself from hearing evidence in an appellate hearing but said that should not have prevented him from signing the death warrant.

Gayle would not say Monday whether he will recuse himself now, but said he will make a decision today.

If Gayle does remove himself from the case, the county’s administrative judge would appoint another judge who would sign the death warrant.

“I believe it’s a technicality,” said District Attorney Jeri Yenne.

Yenne said it is unclear how long it will take to set another execution date, but her office will request one soon.

Marcus said the court would have to remove the stay before another execution date could be set.

“This case is very clear-cut,” said Marcus, who is with the non-profit Texas Defender Service. “Judge Gayle clearly didn’t have any authority to do what he did.”

Carolyn Barrett, Christie Chauviere’s sister, was discouraged but not surprised at news the execution was delayed again. She would not lay odds on when another date will be set.

“It has taken us two years to get another one, so I really don’t know,” Barrett said. “It questions your faith in the Texas justice system.”

Barrett questions the importance of Gayle’s comments after Etheridge’s sentencing. Comments Etheridge made to Gail Chauviere as he left the courtroom that same day are more important, Barrett said.

“Gary looked at my mother and said ‘We are all going to die someday,’” Barrett said. “I know because I was sitting at her right side holding her hand. My mother held his stare until he looked away and walked out.

“I think it’s very ironic that people will quote Judge Gayle and what Judge Gayle said and ignore what Gary said to my mother,” Barrett said. “He can do and say what he wants and nobody cares.”

Marcus notified Etheridge’s mother that the execution was delayed, but he was not allowed to speak to Etheridge. Prison officials may have notified him, Marcus said.

“That would be the humane thing to do,” Marcus said. “I know there’s not a lot of sympathy for people on Death Row and their families but it’s very difficult for the Etheridge family to be put through this, as I’m sure it’s very, very difficult for the victim’s family.”

Canceled execution dates are a consequence of premature scheduling, Marcus said. If judges waited until appeals had run their course to set execution dates, there would not be so many canceled dates, Marcus said.

“In 2000, Mr. Etheridge came within two days of being executed and this time he came within three days,” Marcus said.

But Yenne said Etheridge has had 12 years worth of appeals. His case is a model for how safeguards in the legal system should work, Yenne said.

“The Gary Etheridge case should be a stellar example of due process,” Yenne said. “When people complain and moan about the death penalty I want them to look at the Gary Etheridge case and see how many bites at the apple he has had.

“It would have been nice if Christie Chauviere had had as much due process as Gary Etheridge is afforded before he executed the death warrant on her,” Yenne said.

In November 2000, Etheridge was two days away from lethal injection when the state Court of Criminal Appeals granted an indefinite stay, to allow time to consider competency of an attorney who represented Etheridge at a critical point in his appeal.

Earlier this year, the court removed the stay and, in May, Gayle set the execution date.

Since then, Etheridge attorneys unsuccessfully sued the Court of Criminal Appeals, accusing the court of violating the constitutional rights of condemned killers by appointing incompetent lawyers to handle their appeals.

Last week, Marcus wrote a letter asking Gov. Rick Perry to recuse himself from consideration of Etheridge’s pending clemency request. Marcus claims Perry could be biased since Etheridge was the focus of a 1998 political ad blasting Perry as soft on crime.

Source: The Facts