Bill Kutzner

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.

Cathy Derick

August 19, 2002

Hon. Jerry Madden
Capitol Office
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 innocence.”


Bill Kutzner

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    

Was an Innocent person executed?

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