October 10, 2002

1) 3rd Annual MARCH FOR A MORATORIUM – October 12
2) Trial has started for man who murdered Jeanette Popp’s daughter.
4) Jeanette Popp speaking at UT-Austin on Thursday, October 10.
3) Help Convince the Austin City Council to Pass a Resolution Supporting a Moratorium on Executions- We are incredibly close!
5) Ross Byrd to visit photo exhibit in Austin on Friday, October 11.

Dear Moratorium Supporters,

This is an exciting week. The March for a Moratorium is Saturday. We have a great lineup of speakers. Just this week we heard from Clarence Brandley saying he will be at the march this Saturday. Clarence is an innocent African-American who was wrongfully convicted and sentenced to death by an all-white jury. He spent ten years on Texas’ Death Row before walking free in 1990. Come to the march and hear his story.

1) The 3rd Annual MARCH FOR A MORATORIUM – October 12

It’s here! Many, many people have volunteered hours and hours preparing to make The 3rd Annual March for a Moratorium a great success. The march takes place in Austin on Saturday, October 12. Let’s send a message to the Legislature, the Governor, the Texas Court of Criminal Appeals, the Texas Board of Pardons and Paroles and all the candidates in this year’s elections: MORATORIUM NOW! STOP EXECUTIONS!
http://www.texasmoratorium.org/marchonthemansion.php

There are two buses bringing people to the march from Houston, so if you =
live in Houston and need transportation, contact Gloria Rubac at =
713-523-8454.

The timeline for the march is:
1 pm – Gather at Republic Park (4th and Guadalupe)
2 pm – March to the Capitol
2:30 pm – Rally at the Capitol
4 pm – Wrap yellow crime-scene tape around the Governor’s Mansion
6 pm – Post-march party at 1311 East 13th Street

There is also a pre-march brunch from 10 AM to 1 PM. The brunch is being organized by Inside Books Project as a benefit for their program to send free books to inmates in Texas prisons. The brunch will be at 810 E. 13th St., on the corner of E. 13th & Olander, one block east of the highway. They are asking for a $5 donation from adults,while CHILDREN ARE WELCOME TO EAT FOR FREE. There will be vegan, vegetarian, and meat dishes available. For more information, please contact Inside Books at 512-647-4803 or insidebooksproject@yahoo.com.

The brunch will be a great opportunity to network and socialize with other supporters of a moratorium from around the state and to grab a bite to eat before the march.

Scheduled to speak at the march are: Clarence Brandley, Ross Byrd (son of Jasper dragging death victim James Byrd, Jr.), Jeanette Popp (mother of Austin murder victim, Nancy De Priest), Rep. Harold Dutton (sponsor of moratorium legislation in the last legislative session), Javier Alejo (Consul General of Mexico), 
Sandra Reed (mother of Rodney Reed, who is on Death Row despite a strong case of innocence), Jeannine Scott (wife of Michael Scott), Renny Cushing (Executive Director of Murder Victims’ Families for Reconciliation), Will Harrell (Executive Director of ACLU-TX), Yolanda Cruz (mother of Oliver Cruz, a man with mental retardation who was executed by Texas in 2000), Rick Halperin (President of Texas Coalition to Abolish the Death Penalty), Walter Long (appeals attorney for Napoleon Beazley and Karla Faye Tucker), Nelson Linder (President of Austin NAACP), Akwasi Evans (Publisher of Nokoa newspaper), Njeri Shakur (Texas Death Penalty Abolition Movement) and Raul Garcia (who teaches at Lamar University and has done work among migrants, school dropouts, refugees, immigrants, and prisoners nd their families). Houston City Council member Ada Edwards is sending an aide to read a statement of support.

We just made a bunch of puppets for the march. Come to the march and enjoy the company of people who share similar opinions about the death penalty. Call us at 512-302-6715, if you want to help out on the day of the march. We will meet Friday, October 11 at 6 PM at 1311 E 13th Street in Austin to go over everything one more time. You are welcome to join us for that last planning meeting.

2) The trial of the man who has confessed to murdering Jeanette Popp’s daughter is underway in Austin.

Jeanette Popp, whose daughter was murdered in 1988, is in Austin all this week attending the trial of Achim Joseph Marino. http://www.texasmoratorium.org/article.php?sid=3D166 Several TMNers have been attending the trial with Jeanette. She is our dear friend, TMN’s chairperson, and a tireless advocate for a moratorium on executions. A reporter asked her yesterday if she has changed her mind about asking the DA not to seek the death penalty against Marino and she emphatically answered “no”, and then launched into an impassioned statement against the death penalty. Jeanette is having a difficult week having to attend another trial concerning her daughter’s murder. She has shed many tears this week. She said Tuesday that she feels like she has walked into a time machine and is back in 1990 when two men were wrongfully convicted of her daughter’s murder. This time, thankfully, the system has the right person.

Please send Jeanette messages of support. We will forward all emails to her if you write her at: admin@texasmoratorium.org.

3) Jeanette will be speaking on the campus of The University of Texas at Austin, Thursday October 10 at 7 PM in Painter Hall, Room 2.48. Painter Hall is on 24th Street, between Guadalupe and Speedway. Please come listen to her in the intimate environment of a small room. She will also be speaking at the TX Cure convention on Saturday morning and at the March for a Moratorium on Saturday afternoon.

4) Austin City Council Resolution Supporting a Moratorium on Executions

We are very close to winning passage of a moratorium resolution in the Austin City Council. We now need to concentrate our efforts on getting the votes of two specific council members. The resolution may pass any week now, if we can just get these two council members to support the resolution. Please email, call, fax or write the following two council members:

The Honorable Danny Thomas
Council Member Place 6=20
Danny.Thomas@ci.austin.tx.us
Phone: (512) 974-2266
Fax: (512) 974-1890
Mailing Address
P. O. Box 1088
Austin, Texas 78767

The Honorable Will Wynn
Council Member Place 5=20
Will.Wynn@ci.austin.tx.us
Phone: (512) 974-2256
Fax: (512) 974-1884
Mailing Address
P. O. Box 1088
Austin, Texas 78767

5) TMN is arranging for Ross Byrd to make an appearance at a photo exhibit in Austin on Friday, October 11.

What: Ross Byrd will address questions and speak with the press at the George Washington Carver Museum and Cultural Center’s photo exhibit entitled: “Jasper, Texas – The Healing of a Community in Crisis.” http://www.dailytexanonline.com/vnews/display.v/ART/2002/09/20/3d8ab2e5df68e

The exhibit honors the efforts of individuals who worked to keep peace in Jasper in the aftermath of the brutal death of James Byrd, Jr.

Who: Ross Byrd is an important new voice in the movement to abolish the death penalty. His father, James Byrd Jr., was chained to the back of a pickup truck and dragged three miles to his death in a racially 
motivated killing on June 7, 1998 in Jasper, Texas. During the trial of his father’s murderers, Ross Byrd wanted the killers to receive the death penalty, but his sentiments have since changed. He now opposes all 
executions – including those of his father’s killers.

When: Friday, October 11, 2002, 3 p.m.
Where: Carver Museum and Cultural Center, 1165 Angelina, Austin, Texas 78702

See you at the March!

Sincerely,

Your friends at Texas Moratorium Network

Prosecutor says need for sacrifice drove killer 
Man plead insanity in slaying of Pizza Hut worker as trial opens with details of crime. 

By Jason Spencer 

AMERICAN-STATESMAN STAFF 

Wednesday, October 9, 2002 

Achim Josef Marino pleaded not guilty by reason of insanity Tuesday to a capital murder charge, even though a psychiatrist hired by his defense team has concluded that Marino knew right from wrong when he raped and killed Nancy De Priest 14 years ago. 

Marino, 43, faces an automatic life sentence if convicted because prosecutors are not seeking the death penalty. 

He has said he originally planned to plead guilty to De Priest’s slaying, but he changed his plea to protest the guilty verdict in the Andrea Yates case last spring. 

The jury in that case rejected her insanity plea and sentenced her to life in prison for drowning her five children at her Houston home. 

Marino is expected to testify later in the trial. 

Assistant District Attorney Bryan Case told jurors in his opening statement that Marino set out the morning of Oct. 24, 1988, looking for a victim to kill in a satanic sacrifice. 

Marino posed as a soda machine repairman to trick De Priest, 20, into letting him into the Pizza Hut on Reinli Street, Case said. 

“Nancy De Priest didn’t know it, but the minute she opened that door, she was a dead woman,” Case said. 

Inside, Marino handcuffed and raped De Priest, the married mother of a 14-month-old girl, before shooting her in the back of the head, Case said. 

Austin police Detective Scott Ehlert was a patrol officer in 1988 and was the first officer dispatched to the Pizza Hut after a store manager found De Priest naked in a pool of bloody water outside the women’s restroom. 

Ehlert testified that at first he thought De Priest was dead. 

“Once I got closer to her, I was able to see that she was still breathing,” Ehlert said. She had a faint pulse but was unconscious, Ehlert said. 

De Priest died at Brackenridge Hospital. 

Marino sat upright, appearing to pay close attention to the day’s testimony. 

Across the courtroom, De Priest’s mother, Jeanette Popp, sat on the front row, clutching an unframed picture of her daughter. She wept as police described her daughter’s death. 

Popp asked prosecutors not to seek the death penalty against Marino after meeting him in prison. 

Marino stole between $100 and $150 from the store safe, wiped the counters free of fingerprints, then searched frantically for the spent .22-caliber shell casing that ejected from his pistol, Case said. He didn’t find it. 

Another psychiatrist is expected to testify that Marino’s attempt to cover up the crime helped prove that he knew killing De Priest was wrong, although he probably suffered from bipolar disorder. 

Marino confessed to the crime in 1996, telling authorities that he wanted to set the record straight after converting to Christianity while serving three life sentences for robbery. 

Christopher Ochoa and Richard Danziger, two men serving life sentences for De Priest’s death, were freed from prison in 2001 after DNA evidence confirmed that Marino was the killer. Ochoa and Danziger had spent nearly 11 years behind bars. 

Ochoa has said Austin police detectives coerced him into confessing to the murder by threatening him with the death penalty. Ochoa pleaded guilty and testified against Danziger. 

In his three-minute opening statement Tuesday, defense lawyer Larry Sauer asked the jury of eight women and four men to scrutinize police officers’ testimony against Marino, reminding them that another jury wrongly convicted Danziger of the crime after hearing much of the same evidence. 

“You need to look at everything they’ve done with a very critical eye,” Sauer said. 

He told jurors that Marino has been tormented by what he believes are demons in his head since 1964. 

Sauer, however, did not mention the insanity defense in his opening statement. 

Outside the courtroom, Sauer said he intends to argue later in the trial that Marino’s mental illness prevented him from knowing right from wrong when he killed De Priest.

Pizza Hut slaying trial opens today
Defendant could plead insanity in ’88 rape and killing.

By Jason Spencer

AUSTIN AMERICAN-STATESMAN STAFF

Monday, October 7, 2002

It took Achim Josef Marino four years to convince authorities that he — not the two men serving life sentences for the crime — raped and killed 20-year-old Nancy De Priest at a North Austin Pizza Hut in 1988.

Prosecutors paid attention in 2000 when DNA tests conclusively linked Marino
to the slaying. A judge freed Christopher Ochoa and Richard Danziger in 2001
after each had served 11 years in prison.

But when Marino’s capital murder trial begins today, his lawyer says, he
will ask a Travis County jury to find Marino not guilty. Defense attorney
Larry Sauer does not dispute the confession but said he is considering an
insanity defense.

Marino has been in prison since 1990, serving three life sentences for
aggravated robberies in 1988 and 1990. He will be eligible for parole in
2005.

Marino has told Sauer that he wants to plead not guilty by reason of
insanity. Sauer said he hired a psychiatrist to examine Marino over the
weekend to determine whether Marino meets the legal standard for criminal
insanity.

To be found not guilty by reason of insanity, a defendant must have a severe
mental disease or defect that prevented him from knowing right from wrong at
the time of the crime.

In the spring, a court-appointed psychiatrist determined that Marino’s
mental illness falls short of criminal insanity.

Sauer said he will announce his defense strategy in court today.

At the request of De Priest’s mother, Jeanette Popp, prosecutors are not
seeking the death penalty. If convicted, Marino would be sentenced to life
in prison and would be eligible for parole in 2016, said Assistant District
Attorney Bryan Case. If found not guilty by reason of insanity, Marino would
simply serve out his other life sentences.

Case said he does not know what to expect when jury selection begins this
morning.

“He is unpredictable,” Case said.

Popp had hoped that Marino would plead guilty and accept a life sentence.
She requested that prosecutors not seek the death penalty after meeting with
Marino in prison.

Popp, who became an anti-death-penalty activist in 2000, said Marino
described her daughter’s death in detail and said he killed her to quiet the
demons inside his head.

“His quote to me was, `My spiritual adviser said that if I made a human
sacrifice, they would stop,’ ” Popp said. “So that’s what my daughter was, a
satanic sacrifice for him.”

Popp said Marino told her he decided to confess after becoming a born-again
Christian. Popp said she doubts the sincerity of his religious conversion
but does not want him executed.

“If that was the case, he would not be doing this,” Popp said of Marino’s
religious conversion and his plan to plead not guilty. “I told him, `If you
have any remorse at all, please don’t make me go through this again.’ “

Popp said she dreads the prospect of listening to detectives, and possibly
Marino, testify about her daughter’s death. De Priest, who had a
15-month-old daughter, was preparing to open the Pizza Hut on Reinli Street
when, Marino says, he got her to open the door by posing as a repairman.
Once inside, he forced her out of her clothes, raped her and shot her in the
back of the head. The restaurant has since gone out of business.

“Oh God, I can’t even imagine. I did not want to do this again,” said Popp,
who lives in Azle, near Fort Worth. “I just did everything I could to avoid
this fiasco again. I do not want to look at that man again.”

After Ochoa and Danziger were cleared, Popp became chairwoman of the Texas
Moratorium Network, which seeks to stop executions in the state. De Priest’s
daughter, now 14, lives with her father and stepmother, Popp said.

Last month, Popp was on her way to Austin to plead with Marino one last time
to forgo the trial. But Case abruptly called off the meeting, she said, when
he learned that Popp planned to videotape her conversation with Marino and
give the film to the news media.

“I told Mr. Case that I would be using the video for purposes of other
victims who want to meet with their killers so they would have an idea of
what it was like,” Popp said. “He said he didn’t know what kind of sick
agenda I had, that my behavior was unbelievable. . . . He told me I was
trying to profit from my daughter’s death.”

Case said he canceled the meeting because he feared the videotape’s release
would taint the pool of potential jurors. He denied accusing Popp of
capitalizing on her daughter’s death.

Popp said her death penalty opposition grew out of Austin police detectives’
handling of the investigation.

An internal Austin Police Department review of the case concluded that
detectives botched the investigation by misinterpreting evidence and failing
to corroborate Ochoa’s confession. Ochoa, who pleaded guilty to murder and
testified against Danziger, has said detectives coerced the confession.
Austin police turned over Ochoa’s complaint to the U.S. attorney’s office.
No officers were charged with wrongdoing.

In a letter to the Austin American-Statesman in April, Marino said he
decided to plead not guilty by reason of insanity because of the public
reaction to Andrea Yates’ murder trial. A Houston jury rejected the death
penalty in that case and sentenced Yates to life in prison for drowning her
five children.

“After Yates’ sentence was reported by the media, `normal’ society inundated
both talk and non-talk formatted radio with calls clamoring for vengeance
and Yates’ blood,” Marino wrote. “The vast majority of normal society are
passively hostile toward the mentally ill, and if given the chance, such as
during jury service, will injure such a person at the first opportunity.”

Marino said he hopes his case will expose flaws in the way the Texas
criminal justice system deals with mentally ill defendants.

“Originally, I had intended to accept a state plea bargain solely to spare
Jeanette Popp and her family and friends the trauma and pain of a subsequent murder trial,” Marino wrote. “However, because I am a former mentally ill person who was also subject to direct demonic influences . . . I cannot morally, or in good conscience plead guilty to the murder of Nancy Lena De Priest, and my reason for my change of heart can be summed up in two words. Andrea Yates.”

Popp said she does not think Marino is legally insane.

“The man is not insane, (but) he’s not completely rational,” she said. “He sat and looked me in the face and told me exactly what he did to my daughter and why he did it.”

Dr. Richard Coons, an Austin psychiatrist who often performs court-ordered mental evaluations of criminal defendants, examined Marino in the spring at state District Judge Bob Perkins’ request. Coons agreed that Marino was not insane in 1988.

“Mr. Marino may have suffered from bipolar disorder at the time of the offense, but he knew that his conduct was wrong and illegal,” Coons wrote in a report to Perkins. “He set out to murder someone, gained the cooperation of his victim by guile, robbed her, sexually assaulted her, and murdered her. Fearing detection . . . he spent a great deal of effort trying to locate the spent shell casing. All of this strongly indicates that he not only wasn’t prevented from knowing that his conduct was wrong, but affirmatively knew that it was illegal and wrong.”

Man executed for 1989 murder

Sept 18, 2002
By Mark Passwaters/Huntsville Item Staff Writer

Jesse Joe Patrick, a Dallas County man sentenced to death for the 1989 rape and murder of a neighbor, was executed Tuesday evening in the death chamber of the Huntsville “Walls” Unit.

Patrick was found guilty of brutally killing 80-year-old Nina Rutherford on the night of July 8, 1989. Patrick, who had previously served two years of a four year term for aggravated assault, was 44.

Wearing a red shirt, Patrick made no final statement but nodded to his British wife Hester, who had married by proxy while on death row. As the lethal dose of drugs began flowing at 6:10 p.m., Hester Patrick said “I love you” to her husband through the plexiglass divider.

After a few moments, Patrick made one long sputter and lost consciousness. His wife began to sob and emitted a loud wail. After a few moments, she turned away and began to address Texas Department of Criminal Justice employees in the room with her, calling them “bastards.”

“I hope you are satisfied now,” she said. “You ought to do something about your justice system. This is a disgrace and you should be ashamed of yourselves.”

Patrick was pronounced dead at 6:17 p.m. In a statement released after the execution, Rutherford’s family expressed compassion for the Patrick family.

“Our prayers are for the Patrick family during this sad time of grief,” they wrote. “This is not a vendetta or a social event. We all hurt and hope the Patricks can understand our grief for the past 13 years waiting for justice to be done.”

Patrick was arrested on July 22, 1989, in Jackson Miss. and was extradited to Texas to face a capital murder charge filed in Rutherford’s death. Patrick became a suspect within hours after Rutherford was found beaten with her throat slit by a rusted butcher’s knife. He had called police to report a burglary at his house — two doors down from Rutherford’s — but was gone by the time police arrived.

Police obtained a search warrant and searched Patrick’s house the next day, finding a sock caked in dried blood, an amount of toilet paper with dried blood on it, and a pair of denim jeans also covered in blood. Testing showed the blood on the sock and toilet paper to be a genetic match with Redd’s; Patrick’s girlfriend identified the butcher knife as her’s and a partial palm print from Redd’s bathroom window sill matched Patrick’s.

Patrick confessed to the crime shortly after his arrest, but later recanted. He was found guilty by a Dallas County jury on the capital murder charge and sentenced to death on April 16, 1990. He had attempted to obtain a stay of execution so DNA testing could be done on the semen found in Rutherford’s body, but that appeal was rejected on the grounds that there was no “reasonable probability” such a test would prove his innocence.

Probable innocence case goes back to court

Sept. 11, 2002 

Death row case goes back to court 
Defense lawyers didn’t get crucial ballistics results 

By MIKE TOLSON 
Houston Chronicle 

Harris County prosecutors will have to explain how several key pieces of information that could have helped clear a capital murder defendant were never turned over to his defense attorney. 

The Texas Court of Criminal Appeals on Wednesday ordered the case of Anibal Rousseau returned to district court for further review of allegations that ballistics test results favorable to his defense were not made known either before or after the trial. 

Rousseau, who has maintained his innocence since his arrest, was convicted of capital murder in 1989 and sent to death row. The lead prosecutor in the case, pleading ignorance of the information in question, has called for a new trial. The other, District Attorney Chuck Rosenthal, has said he did not remember seeing results of the tests. 

Technically, the appeals court allowed Rousseau to now raise issues that he did not raise in his first appeal following the conviction. His lawyers hope this will translate into a full-fledged hearing where they can present evidence — the first step in getting a new trial. 

“This is a rare move for the Court of Criminal Appeals,” said Phil Hilder, one of Rousseau’s lawyers. “We are delighted that we now have the opportunity to go back to the state court for a hearing.” 

First, however, state District Judge Susan Brown must grant one. Roe Wilson, who handles capital appeals for the Harris County District Attorney’s Office, said it would not be unusual for the trial court judge to rule on the merits of the new claim without hearing evidence. 

Rousseau, 61, was convicted of killing David Delitta, an Environmental Protection Agency agent, during an October 1988 robbery outside a southside restaurant. The conviction hinged on the eyewitness identification of Rousseau by David Sullivan, Delitta’s co-worker. 

Neither police nor prosecutors disclosed to the defense that the gun used to kill Delitta was found five months later in the possession of Juan Guerrero, a Dominican drug dealer. Guerrero, arrested after a traffic accident, was suspected of killing Leo Williams in March 1989. He later admitted to the murder. 

Two ballistics tests by the Houston Police Department firearms lab concluded that the bullets used to kill Delitta and Williams were fired from the same gun, the black .38-caliber revolver found with Guerrero. 

Presumably, the burden is on prosecutors to explain why this information did not reach defense attorneys, how the gun ended up with Guerrero and why it failed to match the description given by eyewitness Sullivan, who repeatedly told authorities — and Rousseau’s jury — that the gun pointed at him and Delitta was chrome or nickel-plated. 

Prosecutors made a point in the trial of linking Rousseau to a shiny, silver revolver that he used in a series of bank robberies in the months before the Delitta murder. 

Timing may be be part of the district attorney’s explanation. The results of the second ballistics test, the one that conclusively showed that Guerrero’s gun was the murder weapon, were not recorded until June 27, 1989, five weeks after the end of Rousseau’s trial. 

Rousseau’s lawyers contend that if the Guerrero connection had been pointed out to his defense counsel in the first place, it is likely that the trial would not have gone forward until the results of the second test were known. 

“I think we’ve uncovered some real substantial evidence of innocence,” said Bryce Benjet, another of Rousseau’s attorneys. “This guy Juan Guerrero was arrested with the murder weapon, he was known to be a violent offender and he made statements to our investigator indicating he was involved in the (Delitta) shooting.” 

Guerrero served a prison sentence in connection with Williams’ murder and was deported to his native Dominican Republic early this year. 

Former prosecutor Lorraine Parker signed an affidavit in February saying that Rousseau deserved a new trial. She said she was never informed of the ballistics tests or Guerrero’s arrest. 


“Disclosure of this evidence would have likely entailed additional investigation on both sides on such issues as whether Juan Guerrero could have been the assailant in Mr. Delitta’s case, whether Guerrero’s weapon could be linked to Anibal Rousseau, and whether there was an explanation for the difference between Sullivan’s description of the weapon and its actual appearance,” Parker stated. 

At the very least, police knew during Rousseau’s trial that the same gun was used to kill Delitta and Williams, as was recorded in the notes of their investigation into Williams’ killing. At the time they theorized — incorrectly — that the gun would turn out to be the silver revolver described by Sullivan. 


Now a civil attorney in Denver, Parker told the Chronicle in April that if Rousseau cannot be linked to the weapon, the case against him evaporates. 

Co-counsel Rosenthal, who was an assistant district attorney at the time, could not be reached for comment. He has previously said he did not remember seeing the reports that linked Guerrero’s weapon to the Delitta killing. He also has said he thinks it is plausible that the gun could have passed indirectly from Rousseau to Guerrero, criminals who lived near each other. 

Rosenthal’s office has 120 days to respond to the issues raised in Rousseau’s appeal.