My brother Bill was executed on 8/7/02 by Texas without ever having his
DNA evidence tested.
If we can show that an innocent man was executed, maybe it will be enough
to get a moratorium on the death penalty. We are going to try to have the
DNA tested but the expense is about $5,000. If anyone wishes to contribute
a donation can be sent to the Bill Kutzner DNA fund c/o Texas Defender Service,
412 Main Street, Suite 1150, Houston, TX 7700. The Texas Defender
Service is a non-profit organization that helps death row inmates when all
other avenues have failed or given up.
I have attached my recent letter to Texas Rep. Jerry Madden explaining
some of the arugments against the death penalty. It also contains a letter
from Bill to Rep. Madden.
August 19, 2002
Hon. Jerry Madden
P.O. Box 2910
Austin, TX 78768-2910
Re: Richard W. (Bill) Kutzner – Date of Execution 8/7/02
Dear Representative Madden:
I received your letter after the execution of my brother. I also
received a letter from my brother to you. I’m sorry that it has taken me
this long to get to this, but as you might understand, I have had other
things on my mind.
When my brother was alive, I did all of my brother’s legal typing and
many letters that he wanted to look nice and be readable. It was
also a way for him to have a copy of all correspondence. Copies of
all letters received from various Texas legislators were forwarded to Bill.
I never held back from him, the good or the bad. Here is what he wrote:
“Sis, even if I don’t survive, please follow-up on this to maybe help
the next guy. Here is a partial answer to Jerry Madden, who doesn’t
understand that I easily met the standard intended by the Legislature,
which was why the CCA adopted a different and far more difficult one to
meet. By the way, you missed two points in your Madden letter – 30
fingerprints including some on her purse and its scattered contents (none
of which were mine) and a person seen at the crime scene that the State
lied about knowing who it was.”
“Dear Mr. Madden:
You stated in your letter that prisoners were getting tests and that’s
partly true. The example you gave in the Dallas article, the exoneration
of Richard Danziger and Chris Ochoa, was a result of tests given prior to
the new law. As of last Friday (8/2/02), the DPS claims to have run
tests for 27 prisoners under the new law but none were on Death Row.
Population prisoners do not have to appeal to the CCA. Rather, if
the trial court denies testing the appeal goes to the lower appellate courts,
which have adopted the plain wording of the Bill.
The standard for testing under the new DNA law (Chapter 64) is that
the prisoner show by a preponderance of the evidence that given favorable
DNA results there is a reasonable probability that he would not have been
prosecuted or convicted.
On April 2, 2001, during the Senate floor debate the author of the Bill,
Senator Duncan, said, “It is the Legislative intent that the person make
a showing that a reasonable probability exists that the person would not
have been convicted if exculpatory results had been obtained through DNA testing.”
In other debate, Representative Keel asserted that the standard was
reasonable because it permitted testing “simply on the lowest burden of
proof – that you are reasonably probable to have had a different result.”
The Court of criminal appeals said that the phrase “a reasonable probability
exists that the person would not have been prosecuted or convicted if exculpatory
results had been obtained through DNA testing” can have different meanings,
and is, therefore, ambiguous. They then resorted to the legislative
history which they said “makes it very clear that the Legislature intended
the foregoing language from Article 64.03(a)(s)(A) to mean a reasonable
probability exists that exculpatory DNA tests will prove a convicted person’s
Rep. Madden, in your last letter to me, you again stated that the victims
deserved closure. At what price? How can killing an innocent
man bring peace to the family of a victim? And how will they feel
if/when that person is later exonerated? That certainly won’t bring
them peace. I understand that they want closure. But the best
way to serve the families of victims is to ensure that the system works in
the first place.
Some of the problems with the system are these:
1. Inadequate defense: Those attorneys who defend
the accused do not have the budget that the State has to prosecute and there
is no way they can compete. The State has a budget to try a case,
there should be equal money made available to defend it And to say that
the accused person doesn’t deserve that kind of a defense is to say they
are guilty before tried. In my brother’s case, his attorneys
didn’t take the time to read through all the evidence. If they had,
they would have done what Jim Marcus did, put on a better defense. But
these attorneys don’t have the time (time is money) or resources to have
others take the time to properly research the case and follow-up on leads.
If Bill’s attorneys had done that, they would have found out that the State
was wrong and that the wire used was not rare at all, but commonly found
in stores around the Houston area. If Bill’s attorneys had had the
resources, they would have contacted the FBI lab, as I did, and found out
that not everyone at the FBI lab agreed on their experts findings. With
proper resources, they would have followed up on the State’s claims that
the DNA results were “inconclusive” instead of taking them at their word
(later to find out that it hadn’t been tested). The State said my
brother wore rubber gloves, but if that was the case, why were there fingerprints
on the woman’s purse and other belongings? Those fingerprints weren’t
Bill’s – the State tested them. So who else would have fingerprints
on her things right after a crime has been committed?
2. Change the law: Right now as the law stands,
you have three tries at a defense, and if your attorneys miss the mark,
you have no recourse. First you have your trial. Hopefully the
truth will come out, but for reasons stated in #1, that doesn’t happen.
Then you have your appeal attorney who will appeal matters of law that were
not followed. But if he doesn’t do the research, or doesn’t understand
the law and bring up mistakes that were made, you have no more recourse
– the issue is lost. You also have the writ attorney who brings things
that were left out by the trial attorney. But again, if he doesn’t
do the research (see #1) and doesn’t bring these areas out, again, you lose.
Rarely will the federal court overturn if you don’t get it right in these
areas. Since the chances of getting more money for defense are very
slim, change the laws so that if error is found at any point in the proceedings
it is appeal able.
Bill didn’t know about some of the evidence that was excluded until
after all his appeals were done. In order to find out about this evidence
Bill had to file his own request for release of the documents as his attorneys
wouldn’t do it. Of course, by then it was too late. All of the
rules/laws were followed for Bill, but because his counsel didn’t provide
an adequate defense (doing the research) Bill is dead. I know that
to the victim’s family it seems like it will never end. But is it right
to execute the wrong man because his attorneys made fatal mistakes?
Bill’s writ attorney in the other murder never filed the writ! When
asked, she said she did. The only thing that saved Bill was that he
found a loophole, but most prisoners wouldn’t have been able to do that.
3. Fast-tracking to the execution: Five years
seems like a long time, but there have been many cases where the truth
has come out 15 or more years later. I’m not saying change the law
to 15 years, but 5 is much to fast, considering how long it takes to do
some of the things necessary.
4. DNA testing – period: The D.A. said they
would have let us test the DNA anytime we wanted, they just didn’t want
to pay for it. So they spent $100,000 over the last year fighting
Jim Marcus. Hogwash! They never were willing to give it up
until they knew that it was too late! The State will pay $2,500 to
bury the prisoner when he is gone, but they won’t spend the money on the
DNA tests. Once again, only a rich man gets a fair defense.
5. Treatment of prisoners: Treat the prisoners
humanely. They might get out of prison but if you have destroyed them
as human beings by the isolation and poor treatment, you are sending them
back worse than when they went in to prison. Most Humane Societies
treat stray dogs and cats better than the State of Texas treats its prisoners.
We are supposed to be a Christian nation and yet we don’t treat our prisoners
in a way that reflects that.
The things that I have stated about Texas I would also have to say about
California. As I think you know, I am a court clerk in Superior Court.
I used to believe in the system, and that justice was done. But I
have seen too much over the years, and now know that that is an illusion.
Truth and justice is not what comes out of the Courts. We deny the
jury the right to know everything because a discovery rule wasn’t followed.
Whether it is civil or criminal law, the juries rarely know the whole truth.
Because of the inequities of the system, we shouldn’t be executing people.
Again, we say we are a Christian nation, and our law system is based upon
the Bible, hence the death penalty. However, even God wouldn’t let
them put someone to death without two eye-witnesses. I would say that
DNA evidence would be pretty damning, but barring that or two eye-witnesses,
we can never be sure. Circumstantial evidence can make a good case,
but as has been proven all to often in the past, it is a wrong case that
allows the guilty to go free. (However, the victims feel good because
they got their pound of flesh.)
One of the things that you stated several times to me was that Bill
was convicted of two murders, the inference being that surely the mistake
wasn’t made twice. Unfortunately, it did happen twice. By the
time the second trial came around, his defense attorneys didn’t really bother.
They just assumed, as you have, that Bill must be guilty since he was already
convicted of one murder. I know this because of what one of them
said to me. And the facts in each case were almost identical.
I know that barring a miracle I will never convince you that Bill was innocent.
I just wish you had taken time to talk to Jim Marcus. The more he
investigated the case, the more he believed Bill.
We are still going to have the DNA tested as was Bill’s last request.
I hope that you will think about all of these things, and pray about
them. I believe that you are a man who wants to see the right thing
done. And, as a legislator, you have the ability and the moral obligation
to see to it that justice is accomplished.
Cathy L. Derick
an Innocent person executed?