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NO. 388,428-B

EX PARTE § IN THE 180TH JUDICIAL

§

§ DISTRICT COURT OF

§

KARLA FAYE TUCKER § HOUSTON, TEXAS

APPLICATION/PETITION FOR POST-CONVICTION WRIT OF HABEAS CORPUS

THIS IS A SUCCESSOR APPLICATION/PETITION IN A CAPITAL CASE

WITH A CURRENT EXECUTION DATE OF FEBRUARY 3, 1998

GEORGE McCALL SECREST, JR.
BENNETT & SECREST, L.L.P.
333 Clay Street, Suite 3830
Houston, Texas 77002-4177
713/757-0679
713/650-1602 (Fax)

DAVID L. BOTSFORD
WALTER C. LONG
LAW OFFICE OF DAVID L. BOTSFORD
1307 West Avenue
Austin, Texas 78701
512/480-9764
512/480-9768 (Fax)

ATTORNEYS FOR APPLICANT

EVIDENTIARY HEARING REQUESTED

TABLE OF CONTENTS

ILLEGAL CONFINEMENT AND RESTRAINT

NOTICE TO DISTRICT COURT CLERK

NOTICE TO THE COURT OF CRIMINAL APPEALS: STATEMENT OF IMPORTANT POLICY ISSUES

1. The Court of Criminal Appeals should address the issue whether the federal and state constitutions require it to consider the merits of uncontested, post-conviction claims of lack of death-eligibility and future dangerousness, when the State does not seek commutation and commutation is de facto unavailable

2. The Court of Criminal Appeals should address the issue whether the federal and state constitutions require it to consider the merits of an uncontested, post-conviction claim of lack of future dangerousness because, although there is a statutory right to seek commutation, the lack of precedent and the Governor's policy demonstrate that commutation is not available as an option for relief

3. The Court of Criminal Appeals should examine the merits of Applicant's due process and equal protection claims regarding the clemency process, because of the nature of the right involved and the irretrievable loss caused by imminent deprivation of that right

4. The Court of Criminal Appeals should examine Applicant's claims to be constitutionally ineligible for the death penalty as an opportunity, critically needed by the defense bar, to clarify the requirements to be met under the new 11.071, Section 5(a) gateway provisions for successor applications for writ of habeas corpus.

5. The Court of Criminal Appeals should examine Applicant's Second through Sixth Claims for Relief as an opportunity to clarify within its own jurisprudence whether claims pertaining to a defendant's right to avoid unconstitutional punishment may be barred in a successive state writ without unconstitutional suspension of the writ.

6. The Court of Criminal Appeals should examine Applicant's Eighth Amendment Claims because such claims are more properly reviewed by a court than left for review in clemency proceedings, due to the almost unreviewable nature of clemency proceedings

7. The Court of Criminal Appeals should examine Applicant's Eighth Claim for Relief -- that denial of merits review of her claims would "shock the conscience" -- because Applicant has shown that the Texas death penalty system as it presently operates (not as it is constituted) will not prevent the unconscionable and unconstitutional denial of her right to life

PROCEDURAL HISTORY

PROCEDURAL ARGUMENTS

A. General Arguments for Merits Review of All Claims under Texas Code of Criminal Procedure Article 11.071, Section 5 (a) (1) and (3) 18

B. Specific Argument for Merits Review of Applicant's Claims for Relief Two through Seven on the basis of Texas Code of Criminal Procedure Article 11.071, Section 5 (a) (3). 20

RELEVANT FACTUAL HISTORY

1. Trial Record Evidence Relevant to Rehabilitation and Lack of Dangerousness

2. Post-Trial Evidence of Rehabilitation and Lack of Dangerousness

CLAIMS FOR RELIEF 53

CLAIM FOR RELIEF NUMBER ONE: EXECUTION OF APPLICANT AFTER REVIEW UNDER CURRENT TEXAS CLEMENCY PROCEDURES WOULD VIOLATE HER RIGHTS TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 19 OF THE TEXAS CONSTITUTION, AND HENCE VIOLATE THE EIGHTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 13 OF THE TEXAS CONSTITUTION.

1. The Governor's policy is not in accord with substantive or procedural due process because it provides no procedure at all for a large category of cases involving fundamental miscarriage of justice, including Applicant's case

2. The policy and practice of the Board of Pardons and Paroles is not in accord with procedural due process because it provides no protection against wholly arbitrary decisionmaking

3. The undeviating post-Furman practice of commutation based upon judicial expediency alone violates Applicant's and others' rights to due process by hinging the only possibility of clemency on the whim of local officials

4. The undeviating post-Furman practice of commutation based upon judicial expediency alone violates Applicant's and others' rights to due process because it prevents any review of cases involving miscarriage of justice, including cases involving rehabilitation, which are afforded review and relief in other death penalty states

5. The undeviating post-Furman practice of commutation based upon judicial expediency alone deviates significantly from pre-Furman practice of commutation in Texas which respected rehabilitation as a legitimate basis

6. The combination of the Governor's stated policy, the Board's stated policy and practice, and the undeviating practice of commutation based upon judicial expediency alone reveal a system that affords no actual clemency process because there is no authority who will exercise the discretion required to make commutation decisions that will prevent miscarriage of justice

7. Conclusion: The Texas death penalty clemency/commutation process is a game of chance with loaded dice.

CLAIM FOR RELIEF NUMBER TWO: THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION FORBID THAT THE COURTS OR THE EXECUTIVE ALLOW THE EXECUTION OF APPLICANT BECAUSE HER COMPLETE REHABILITATION AS AN OFFENDER DEMONSTRATES THAT HER EXECUTION WOULD FAIL TO SERVE THE UNDERLYING GOALS OF THE CAPITAL SANCTION

CLAIM FOR RELIEF NUMBER THREE: THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION FORBID THAT THE COURTS OR THE EXECUTIVE ALLOW THE EXECUTION OF APPLICANT BECAUSE HER EXECUTION WOULD BE WANTON, ARBITRARY INFLICTION OF PAIN, UNACCEPTABLE UNDER CURRENT AMERICAN STANDARDS OF HUMAN DECENCY

1. The Social Science Evidence 92

2. Legislative Enactments 101

a. The Federal Government 103

b. The Model Penal Code 105

c. State Constitutions Establishing Rehabilitation as One (or the Only) Punishment Priority

d. Texas' and Other Death Penalty States' Statutes that Explicitly Require Punishment of Offenders to Hew to a Rehabilitative Goal

e. Death Penalty States' Statutes Requiring Less Explicit Consideration of Rehabilitation in Punishment

f. Non-Death Penalty State Statutes Requiring Rehabilitation as a Punishment Goal

3. The Behavior of Juries

4. Statements by American Religious Bodies

5. Commutation Actions by Governors and State Boards

6. International Opinion and Law

7. Conclusion 123

CLAIM FOR RELIEF NUMBER FOUR: THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION FORBID THAT THE COURTS AND THE EXECUTIVE PERMIT THE EXECUTION OF APPLICANT BECAUSE SHE NO LONGER POSES ANY RISK OF DANGER TO OTHERS AND, THUS, IS NOT DEATH-ELIGIBLE

CLAIM FOR RELIEF NUMBER FIVE: THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION FORBID THAT THE COURTS AND THE EXECUTIVE PERMIT THE EXECUTION OF APPLICANT BECAUSE A SYSTEM ALLOWING THEIR FAILURE TO ACT PERPETUATES THE SAME KIND OF ARBITRARINESS CONDEMNED BY THE SUPREME COURT IN STATE SYSTEMS CHARACTERIZED BY MANDATORY DEATH PENALTIES.

CLAIM FOR RELIEF NUMBER SIX: THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION FORBID THAT THE COURTS AND THE EXECUTIVE ALLOW APPLICANT TO UNDERGO THE DEATH PENALTY BECAUSE OF HER GENDER 132

CLAIM FOR RELIEF NUMBER SEVEN: EXECUTION OF APPLICANT WOULD VIOLATE HER RIGHT TO SUBSTANTIVE DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES BECAUSE SHE IS ACTUALLY INNOCENT OF THE DEATH PENALTY

CLAIM FOR RELIEF NUMBER EIGHT: APPLICANT'S EXECUTION WOULD VIOLATE INTERNATIONAL LAW, WHICH HAS BEEN ADOPTED BY THE UNITED STATES AND THE STATE OF TEXAS, AND THEREFORE, SHE CANNOT BE EXECUTED UNDER THE SUPREMACY CLAUSE OF THE CONSTITUTION OF THE UNITED STATES

CLAIM FOR RELIEF NUMBER NINE: DENIAL OF MERITS REVIEW BY THE TEXAS COURT OF CRIMINAL APPEALS OF APPLICANT'S CLAIMS WOULD BE FUNDAMENTALLY UNFAIR AND "SHOCK THE CONSCIENCE" IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES

SUMMATION AND PRAYER FOR RELIEF

AFFIDAVIT

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"An offender must be punished. . .; but to punish and not restore, that is the greatest of all offenses."

Alan Paton

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