The Houston Chronicle has an article in today’s paper that casts doubt on whether Texas should carry out the execution of Johnny Conner on August 22. Conner’s execution would be the 400th since Texas resumed using the death penalty in 1982 after an 18 year moratorium. It would be emblematic of the many problems in the Texas death penalty system if the 400th execution is carried out despite the issues in the case that the Chronicle article brings up, including ineffective assistance of counsel during Conner’s trial that could have resulted in a conviction based on faulty witness identification of Conner as the perpetrator.
From the Chronicle:
Three people identified Johnny Ray Conner as the man they saw running from a north Houston grocery store after 49-year-old Kathyanna Nguyen was fatally shot in May 1998. During Conner’s trial, none of the witnesses mentioned the gunman had a limp.
But, then again, none of them was asked.
A federal judge in 2005 ruled that Conner deserved another trial because his defense attorneys failed to investigate Conner’s medical record. His trial attorneys said they never noticed Conner limp and he only mentioned the issue in passing and never to dispute the witnesses’ testimony. The 5th Circuit U.S. Court of Appeals overturned the federal judge’s decision without addressing the attorneys’ performance. Now the issue rests with the Supreme Court.
If the high court lets the ruling stand, Conner on Wednesday will become the 101st Harris County inmate to be put to death since 1982. He declined to be interviewed.
Customer saw robbery
During the May 19, 1998, robbery, the gunman stuffed a revolver into the small opening of the store’s counter, surrounded by bulletproof glass, and demanded money from Nguyen. There was no escape for Nguyen, who owned the business. She died from three gunshot wounds to the head. A customer, Julian Gutierrez, who interrupted the robbery was also shot, but he survived.
“I heard somebody say, ‘Give me all your money!’ ” Gutierrez testified at Conner’s trial. “He was pointing a gun at Kathyanna Nguyen and had his hand all the way inside the booth. She was shaking.”
Gutierrez was shot in the shoulder when he turned to run.
The gunman was seen by six witnesses, three of whom identified Conner as Nguyen’s killer.
Conner said he told his attorneys before the trial about a broken leg he suffered a year before the shootings that led to a condition known as “foot drop.” Weakened muscles around his right shin made him shuffle his right foot forward to walk.
No medical testimony about the injury was presented at this trial.
But other evidence may have been too much to overcome.
Conner’s fingerprint was lifted from a plastic orange juice bottle police found near the store’s cash register. The bottle does not appear in police photos of the crime scene — a point hammered by the defense during the trial. Conner told his attorneys he was at the store hours before the holdup.
Although three witnesses, including Gutierrez, picked Conner’s mugshot from a photo spread, all of them gave inconsistent descriptions. None of them mentioned seeing the teardrop tattoo on his face.
Gutierrez told police the gunman was wearing white tennis shoes, brown shorts, a white T-shirt and a red cap. Another witness, who saw the gunman running down the street, said he wore dark shorts and no hat. A third witness, who saw the gunman as she drove along Fulton, said he wore jeans, tennis shoes and no hat.
Conner’s appellate attorneys persuaded U.S. District Judge Vanessa Gilmore to conduct a hearing about Conner’s ineffective assistance of counsel claim.
“The state had him videotaped walking in the prison, unbeknownst to him that he was being videotaped, and it shows he has a limp,” said Robert Rosenberg, who argued Conner’s case during the hearing.
Ricardo Rodriguez and his co-counsel Jonathan Munier never noticed Conner with a limp during his trial. Rodriguez testified during the hearing that Conner told him “I broke my leg, but I’m fine now. I went for therapy.”
“The defense attorneys failed to conduct a reasonable investigation that would permit them to make a reasonable choice among trial strategies,” said Jim Marcus, a University of Texas School of Law professor who filed a petition with the Supreme Court about Conner’s case. “That’s no way to make an informed decision.”