The Austin-American Statesman now has more about this new filing:
With David Lee Powell scheduled to be executed shortly after 6 p.m. tonight, defense lawyer Richard Burr this morning asked an appeals court to halt the lethal injection because of alleged misconduct by Travis County’s top prosecutor.
The filing with the Court of Criminal Appeals accuses District Attorney Rosemary Lehmberg of providing false statements to the Texas Board of Pardons and Paroles, which was considering Powell’s request to have his death sentence reduced to a life term.
To counter the defense argument that Powell had led an exemplary life on death row, Lehmberg’s June 4 letter included testimony from Powell’s 1999 retrial, when a witness claimed Powell made an assassination threat against the nine justices of the U.S. Supreme Court.
According to Lehmberg, a former member of an anti-death penalty group — Jonathan Shrag — related the assassination threat to a lawyer with the Attorney General’s Office in a 1996 phone call.
But according to Powell’s latest appeal, Lehmberg failed to note Shrag’s testifimony that he had conversations with four or five death row inmates in 1993 and could not say for certain that Powell was the inmate who made the threat. Nor did Lehmberg acknowledge that a prosecutor declined to present the testimony to the jury “because of the uncertainty about whether Mr. Powell made the threat,” the appeal said.
“The district attorney had to know that this representation of the trial record was false and that it would have a devastating effect on the claim that Mr. Powell was not only not dangerous, but that he did not have the character to pose a risk of dangerousness,” the appeal reads.
New Motion for Stay of Execution for David Powell Filed to CCA
Stay Motion in Case of David Powell to CCA filed June 15, 2010