David Powell's Clemency Application to the Texas Board of Pardons and Paroles

8/9/2019 David Powell's Clemency Application to the Texas Board of Pardons and Paroles

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BEFORE THE

TEXAS BOARD OF PARDONS AND PAROLES

___________________________________________

In re DAVID LEE POWELL,

TDCJ No. 000612,

Applicant.

___________________________________________

________________________________

APPLICATION FOR

COMMUTATION OF DEATH SENTENCE________________________________

Richard Burr

Texas Bar No. 24001005

2307 Union Street

Houston, Texas 77007


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TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

MR. POWELLS PRESENT STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PRIOR LEGAL PROCEEDINGS

A. Course of Prior Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

GROUNDS FOR COMMUTATION OF SENTENCE

I. For More than Three Decades, David Powell Has Lived an Exemplar

on Death Row, Embodying and Living Human Virtues as Few of Us

A. Death Row Inmates Accounts of Mr. Powell . . . . . . . . . . . .

B. Free World Citizens Accounts of Mr. Powell . . . . . . . . . . .

II. Mr. Powell Is, Without Doubt, No Longer a Future Danger . . . . . . .

III. Mr. Powell Would Not Have Been Sentenced to Death Had the Alter

Sentence to a Death Sentence Been Life Without Parole . . . . . . . . .

MR. POWELLS REMORSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


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INTRODUCTION

David Powell was 27-years-old when he was first committed to Texas death

fall of 1978 for the killing of Austin Police Officer Ralph Ablanedo. Mr. Powell is

now and has been on death row for nearly thirty-two years. After a difficult period o

in the first few months he was on death row he became very depressed, quit eating

sent to Rusk State Hospital Mr. Powell became a model prisoner and extraordinar

being. For more than three decades, he has lived an exemplary life on death row, em

living human virtues as few of us do. It is this extraordinary record that calls for the

commutation of Mr. Powells death sentence to a life sentence.

Mr. Powell has made invaluable and innumerable contributions to the betterm

other peoples lives, both in and out of the Texas Department of Criminal Justice (h

TDCJ). He has for decades been a powerful force for good:

he has helped scores of other inmates on death row in as many ways as there

he has helped,

he has taught and mentored numerous death row inmates,

he has lived with a positive attitude and demeanor and has inspired many oth

same,

he has made peace between inmates in conflict and has protected correctiona

from assault by other inmates,


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he has inspired many people to live their lives more positively, with greater c

for others, and to be of service to others.

Because of who he is, David Powell is beloved by many on death row and by

world. He is seen as a human being of immense value, whose execution would dep

in and outside of TDCJ of an unwaveringly good person who does considerable goo

of his life. Ever mindful of the immense hurt and loss he inflicted on Officer Ralph

and his family, Mr. Powell has lived his life on death row with profound humility an

abiding sorrow. He knows that he can never make amends for what he did, and he k

will carry the shame and burden of what he did the rest of his life. He seeks only to

life to its natural conclusion, acutely mindful that he did not allow Ralph Ablanedo

is with this humility and perspective that David Powell asks for the measure of merc

Board is authorized to recommend to the Governor.

While the primary measure of David Powells worthiness of clemency is the

as a human being, there are additional reasons to recommend clemency. Mr. Powel

the killing of Ralph Ablanedo has served as a stark and unambiguous refutation of th

that he would be dangerous to others in the future. The prosecution urged each of M

three juries to base their prediction on the facts of the crime an unprovoked killing

officer with an assault rifle to avoid arrest for the possession of a quantity of illegal

the threat that Mr. Powell might resume his drug-using-and-dealing activities, and th


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get out prison, and the peaceful, positive, compassionate, and helpful life he continu

unreliability of the prediction that he is a future danger must now be acknowledged.

consequence of that acknowledgment is that Mr. Powell should no longer be seen as

the death sentence since future dangerousness is a statutory prerequisite to the impo

death sentence.

Finally, there is additional reason to recommend commutation because the al

the death sentence for Mr. Powell in all three of his trials was a parolable life senten

without the possibility of parole (LWOP). Recent interviews of several members of

Powells third jury have revealed that one juror would not have voted for death for M

had the alternative sentence been LWOP. This is consistent with the experience of

juries. All the available data has shown that when the alternative to a death sentenc

without the possibility of parole, jurors tend to sentence people to death much less o

has certainly been the trend in Texas where the death sentencing rate has gone down

since 2005 when LWOP became the alternative to a death sentence in a capital pros

All of the reasons for commuting Mr. Powells death sentence thus coalesce

indisputably good person in prison, as good as any person could be, having made inn

positive contributions to people in and out of TDCJ. He indisputably does not pose

danger if he is allowed to live out his life in prison. And, had his most recent jury b

option of sentencing him to live out his life in prison, the jury would not have been


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MR. POWELLS PRESENT STATUS

Mr. Powell is an indigent man on Texas death row. He is housed at the Pol

Livingston, Texas. His TDCJ number is 000612. The state official responsible for

executing Mr. Powell is Rick Thaler, Director of the Texas Department of Criminal

Correctional Institutions Division.

By order of the 167th Judicial District Court of Travis County, Mr. Powells

set for June 15, 2010. See Appendix 1.

PRIOR LEGAL PROCEEDINGS

A. Course of Prior Proceedings

David Powell was first convicted and sentenced to death for the capital murd

Police Officer Ralph Ablanedo in 1978. The Texas Court of Criminal Appeals affir

v. State, 742 S.W.2d 353 (Tex. Crim. App. 1987), but the Supreme Court vacated hi

sentence. Powell v. Texas, 492 U.S. 680 (1989).

In 1991, Powell was again tried for capital murder, convicted and sentenced

On appeal the Court of Criminal Appeals affirmed the conviction but vacated the se

remanded for a new sentencing proceeding,Powell v. State (Powell II), 897 S.W.2d

Crim. App. 1994), because the trial court failed to instructed the jury to consider the

deliberateness special issue. Id. at 318. Powell sought certiorari, alleging that he w2


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The transcript is referred to by volume number and page number, with at 3

the page number. Exhibit volumes are a part of the transcript and are also referred t

and exhibit number, using at to refer to the exhibit number. The clerks record fo

a complete new trial, but certiorari was denied. Powell v. Texas, 516 U.S. 808 (199

On February 22, 1999, Powells new sentencing trial began. 33 at 1. The ju3

the special issues on March 6, 1999, and the court sentenced Powell to death. 43 at

Court of Criminal Appeals affirmed,Powell v. State, No. 71,399 (Tex. Crim. App. 2

(unpublished), and the Supreme Court denied certiorari. Powell v. Texas, 537 U.S.

Thereafter, Powell filed a state habeas application, and the Court of Crimina

denied it on the basis of the trial courts recommendation. A timely federal habeas p

then filed. ROA 41-158 (dkt. 21). The magistrate judge recommended denial of th4

February 28, 2005, ROA 439-526 (dkt. 49), and on December 27, 2005, the federal

adopted in its entirety the magistrates report and recommendation and entered final

against Powell. ROA 559-62 (dkt. 53, 54).

Thereafter, on July 16, 2008, the Fifth Circuit affirmed the district courts de

Powells habeas petition,Powell v. Quarterman, 536 U.S. 325 (5 Cir. 2008), and thth

Court denied Mr. Powells petition for writ of certiorari on March 23, 2009. Powell

Quarterman, 129 S.Ct 1617 (2009).

B. Statement of Facts

On the night of May 17, 1978, Mr. Powell asked his former girlfriend Sheila


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drive him from Austin to Killeen to conduct a drug deal. 39 at 43-44. Meinert knew

had an outstanding arrest warrant and a large quantity of drugs in the car. 39 at 45,

had with him a loaded .45 semi-automatic pistol in a holster, a loaded automatic rifl

grenade with tape wrapped around the spoon, and a back pack that contained 2 ou

amphetamines, which had a street value of $5,000. 35 at 172; 37 at 66-68; 39 at 52;

There was a small glass pipe with traces of amphetamine powder on it in the car tha

could have used to inhale some of the speed as Meinert drove. 33 at 239, 241-42.

Austin police officer Ralph Ablanedo was riding alone in his marked patrol

saw Meinert driving on East Live Oak without a rear license tag. 33 at 66, 223-24;

Meinert pulled over to the curb and got out of the Mustang when she saw Ablanedo

lights. 39 at 45-46, 52. Powell did not say anything to her. 39 at 52. Ablanedo che

Powells drivers license and asked the dispatcher to run a warrant check on him. H

Meinert a traffic ticket and allowed her to drive off with Powell before the warrant c

completed because the dispatcher told him that her computer system was malfunctio

223-24; 39 at 45-46, 49-50. The dispatcher informed Ablanedo that Powell had a p

wanted for misdemeanor theft shortly after the Mustang started driving away. 33 at

car only traveled half a block before Ablanedo signaled for Meinert to pull over aga

Powell did not say anything to Meinert when she stopped the car. 39 at 52-53. She

him reach for the carrying case where he kept his automatic rifle. 39 at 53.


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crying and yelling and just scared.... So what did I do was, I think, just go forward

drive. 39 at 54.

As Bobby Bullard happened to drive by Meinerts and Ablanedos cars, he w

shooting of Ablanedo. 34 at 42-45. He saw Ablanedo get out of his car and walk to

Mustang. Id. He could not see the occupants of the Mustang, but he heard two or th

shots fired from the Mustang and saw Ablanedo fall. 34 at 45. Shortly thereafter, A

up and a bunch of shots hit him. 34 at 46. Bullard saw Powell firing these shots

the Mustang. 34 at 46. Bullard and others, who heard gunshots but did not see wha

came to Ablanedos aid. Ablanedo told these people that a girl shot him and then

[him] with a shotgun. 33 at 61, 203; 34 at 21, 203. Ablanedo died during surgery.

After the shooting, Meinert drove away with Powell. 39 at 53-54. Another

officer, Joe Villegas, spotted their car in a parking lot after he heard the report of the

shooting. As he pulled into the lot, a burst of automatic weapon fire came from the

80-81. Other officers joined Villegas, and gunfire was exchanged with the occupan

Mustang, but no bullets hit any of the officers or their cars. 34 at 83, 90-91, 99, 109

119, 131-134. Powell was identified as the person who fired some of the shots. 34

134. During the standoff, Officer Bruce Boardman saw a person he later thought wa

throw something at the officers. 34 at 118-119. Later, a live grenade was found on

about 12 feet from the drivers door of Villegas car. 33 at 134-35.


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57, and denied throwing the grenade. 39 at 56-64.

In Mr. Powells third trial solely a re-sentencing proceeding defense coun

jury in his opening statement that Powell was responsible for every aspect of the crim

Meinert had no part in it, and that because of this, he would not cross-examine most

witnesses. 33 at 39. The defense was that Powell was no longer in 1999 when the

sentencing proceeding trial was held a future danger. The defense presented evide

Powell had been a good, law-abiding young person with great promise until he fell i

usage in college, which then led to chronic and debilitating addiction, drug dealing,

thefts, and increasingly irrational and erratic behavior, between 1970 and 1978. See

at 71-202, 39 at 74-158, 40 at 8-17. The defense also demonstrated that after the fir

months Powell was on death row in 1979, until the time of the trial, Powell had beco

prisoner,see 40 at 33-113, and had developed positive relationships with a number o

citizens. See 40 at 128-143, 41 at 9-40.

While Mr. Powells attorneys decided not to present Mr. Powells drug addic

mitigating factor in his third trial, it is important for the Board to understand the evi

Powells condition. This is not offered as a ground for clemency, but the evidence d

Board understand how Mr. Powell could have gotten into a situation that allowed hi

Officer Ablanedo. All of the following evidence was presented in Mr. Powells sec

Ms. Meinert testified that by the time of the shooting, Powell had become ad

5


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not drive his car because he was hallucinating. 19 Tr2 160.

Others confirmed that during the two years that preceded the shooting of Off

Ablanedo, Mr. Powell appeared to have a serious drug problem or mental illness. In

college friend, David Van Os, saw Mr. Powell and had the impression that he was u

33 Tr2 356. He testified that Powell had an unkempt appearance and a hyperactive

Id. His first thought was that Powell was using speed, because in his experience spe

effect, causing paranoia. Id. Mr. Powells father testified that he saw his son ther

1977 at an energy seminar, and that David looked thin and haggard and had been up

reading literature from the seminar. 32 Tr2 135. Mr. Powells maternal aunt, Frida

testified about an encounter she had with David in July or August, 1977, in which h

extremely abnormal his hair was a mess, his eyes looked wild, he had no shoes on

he was very thin, 32 Tr2 159 (he had not eaten in four days, id.) and he conversed

shuffling through business cards. 32 Tr2 159. Ms. Malone was so disturbed that sh

Davids mother and told her he needed to go to a mental hospital. Id. He disappear

before his mother could get him committed. 32 Tr2 160. Ms. Malone saw David in

19, 1978, and he looked like a wild animal with his hair a mess. 32 Tr2 161.

Dr. John Luker testified that Mr. Powell was a former patient, whom he had

treat for methamphetamine abuse in late 1977. 32 Tr2 241. Dr. Luker testified that

him he was taking 1000 milligrams of methamphetamine per day. 32 Tr2 242. He


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Two experts testified on Mr. Powells behalf concerning the effect of his

methamphetamine abuse. Dr. Lester Grinspoon, a nationally recognized authority o

32 Tr2 184-188, 194, testified about the effects of amphetamine abuse. Methamphe

has more serious effects because it is more potent than amphetamine. 32 Tr2 201. P

use the kind of daily quantity of methamphetamine reported to Dr. Luker by Mr. Pow

worst effects psychosis, in which someone loses touch with reality, 32 Tr2 199, w

produces paranoia and violent defensive behavior. 32 Tr2 202-209. Dr. Richard Pe

psychiatrist from Houston, testified about his evaluation of Mr. Powell. 33 Tr2 394

Pesikoff saw in Mr. Powells gradual deterioration a classic pattern resulting from

methamphetamine abuse. 33 Tr2 401-411. By 1977 and 1978, Mr. Powell manifes

symptoms of a methamphetamine abuser: he was skinny, agitated, hypermanic, una

concentrate, paranoid, incoherent, and shaky. 33 Tr2 411. By the late 1970's Mr. P

also experiencing hallucinations and believing that he was going to be attacked. 33

At the time he shot Officer Ablanedo, Powell was agitated, had impaired jud

felt that he was being chased down by an enemy. 33 Tr 436. Mr. Powell was so deb

the time of the shooting that Dr. Pesikoff believed he was insane all due to metham

abuse, the effects of which were worsened by the medication prescribed by Dr. Luke

459, 495, 518, 524.

GROUNDS FOR COMMUTATION OF SENTENCE


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other peoples lives, both in and out of the Texas Department of Criminal Justice. H

three decades been a powerful force for good. To end his life makes no sense. As d

inmate Robert Will has said, If David is executed his death will take away a person

a profoundly positive impact on Texas Death Row. Appendix 13. And as death ro

Charles Thompson has said, It would be a tremendous loss not only to prison socie

society as a whole, to take away a life that has touched so many lives. Appendix 1

To present the evidence of Mr. Powells exemplary life to the Board, counse

Powell has interviewed twelve inmates currently on death row and one inmate who

death row with Mr. Powell for 24 years but is now serving a life sentence. Each of t

has signed an affidavit which has been included in the appendix to this application.

Mr. Powell has also sought statements from eleven people outside TDCJ, ten of who

gotten to know and developed relationships with Mr. Powell since he was first sente

death, and one of whom is his maternal uncle. Each of these people has prepared a

statement which has also been included in the appendix to this application.

A. Death Row Inmates Accounts of Mr. Powell

The people who know Mr. Powell the best are the people he lives with oth

sentenced to death. The thirteen death row inmates who have presented information

Powell have lived with him on death row for as long as 26 years (Les Bower) and as

under 4 years (Ramiro Gonzales). All of their accounts reflect their individual persp


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Appendix as Appendices 2-14. The affidavits were written in handwriting by the p6

interviewing each inmate, with the assistance of each inmate to assure accuracy. Fo

reading, each affidavit has also been typed, and the typed version is included right a

sworn, handwritten affidavit of each inmate in the appendix containing that inmate

Counsel has excerpted comments of each inmate and organized these comments the

according to Mr. Powells behaviors and virtues. Following each separate quotation

Appendix number of the affidavit of the inmate from whose affidavit the quotation i

David Powell is a very intelligent man. His intelligence, however, is not in a

coupled with arrogance. To the contrary, his intelligence and approachability have p

powerful draw to many inmates.

David is an extremely smart man with a very high I.Q. Im not as smart as h

he could carry on a conversation using words I couldnt use with anyone else

intelligence helped me along and I gravitated towards him. (App. 2)

David is an incredibly intelligent person. There was nothing that I discussed

that he knew nothing about. He helped lead me to the pursuit of self educatithis by stimulating my mind, he subtly inspired me through conversation. (A

When David walks into a day room its like someone turned the light on, its

talk to, hes not a dull person at all. More times than not hell lose me when

to him but he seems to always gone back into your level. He can definitely k

your understanding skill. (App. 6)

David is one of the people that I am so glad Ive met because he has made m

Every time Id seen him, Id go back to my cell and try to read more, learn m

the next time I saw him, I could be more on his level. David is so intelligent

knowledgeable that of course that was impossible, but he inspired me to try.


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With me and David, I like to pick his brain, it helps keep me alive, stops me

shutting down. He stimulates me, he keeps me going. Me and David have s

backgrounds I was at Texas Tech studying architecture when I got arrestedbonded with each other having similar backgrounds like that. David is a goo

me, just recently we got outside together to talk, I can actually talk about thin

David like politics, the legal system, we can have little debates. (App. 11)

One of the most pervasive experiences death row inmates have had with Mr.

helpfulness. He helps people understand things they have a hard time understanding

the knowledge he has when it helps someone, he provides emotional support and kin

many people have never gotten, he helps people cope with problems, he provides in

people according to their interests and needs, he provides material things (e.g., stam

snacks, writing materials, personal hygiene products) that people need without their

asked, and he provides comfort in times of great anxiety and stress. His fellow inm

explained all of this and more:

In the many years I have known David I have seen him become increasingly

gregarious. He didnt isolate himself. David is a real repository of knowled

free with his advice. He is someone that people know they can go to and Dalikely have the answer to their question. (App. 2)

If you ask him a question hell do his best to point you in the right direction

normally right, he knows what hes talking about. David would help anyone

selective in who he helps, in here certain people group together, David is dif

that he doesnt discriminate on the grounds of race or age or what youve do

11)

David has dedicated a lot of his time to helping others. He does not waste h

always reading scientific digests. He is a very inquisitive person and I was d

You can read something in a book but still not understand it. You could go

he could explain it. I would regularly go to him with legal issues. We woul


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David is like an uncle to me, I have known him 5 years, he supports me, emo

legally. I am actually from Kentucky, I got no-one here, no-one so I rely on

heavily. I have no family here, I rely on David for support, he talks me throuday, he talks me through, and out, of bad times like when my appeals are d

will calm me down when Im pissed hes always right. (App. 4)

When David hears peoples problems he will help them, he tells them what c

up or tell them he is in the same predicament and how he handled it. David

letters with instructions 2 or 3 days after he hears about the problem. (App.

Dave is a strong man, mentally and physically, if he hadnt of helped me stayprobably would have lost my damn mind. (App. 7)

David had a lot of hope. He just stayed positive. I was going through a depr

David was the one who told me to go outside. He would tell me to keep see

psychiatrist, they can help you. (App. 10)

David has helped me with personal crisis. A girlfriend of mine left me for awas devastated. David told me the reality of the situation, that its hard to ke

girl happy when youre locked up. He had me look at myself, he told me yo

around like a zombie, youre not studying, reading, working, you need to sna

(App. 12)

Since then hes counseled me in my current relationship. David has given m

how to show my girlfriend that I care being that Im incarcerated and dont h

with her. We share ideas on how to show our girlfriends affection, such as sonnet by William Shakespeare which David introduced me to. (App. 12)

David is always thinking of other people and shares his stuff, like his newspa

waited a month before for his newspapers to make the rounds. People here d

waiting for Davids newspapers, by the time he is finished with them he has

everywhere. David will circle articles of interest and put the name of the guy

and a big arrow pointing to it with a comment about why he should look at i

always thinking of others like that. David cuts out pictures of outside scener

makes sure I get them, he does this because he knows I like to paint outside

David will send me these pictures and I will paint them if I have the supplies

I have never had as much help as I received from Mr. Powell in the year and


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continues to help people with their emotional struggles, despite his own inne

(App. 5)

David is a link in a chain that keeps the helping going. Theres a country son

its about the chain of love, gotta keep the love going, back here were like th

David is a link in that chain, he is always there despite any arguments or con

always there to help the next person. (App. 6)

Dave always likes to help people out, he gives people anything he can, hes g

something to eat, stamps, things like that. (App. 7)

David, he would buy little things from the commissary and give it to some o

guys, like candy, or soup. You just know who goes and who doesnt go to c

and David would give them something small, like an ice cream or soup. The

ask for it, it was just out of his good heart. (App. 10)

I first remember David giving out candy, it was around Halloween and he wa

the candy bars for trick or treat. It was surprising to me because you always things about people on death row, I didnt expect them to be kind or giving,

expect him to be celebrating the holidays and giving out candy. (App. 11)

When I came from county I had nothing, I wasnt allowed to bring anything

legal papers, my pictures and my bible. The guys in my pod, including Davi

things shower shoes, toothpaste, toothbrush, soap, shampoo, pencil, paper,

envelopes and even food to snack on they gave me everything. This chang

impression of people on death row and David was a part of that. (App. 11)

David is a very community minded person. When new people arrive on dea

helped them in basic needs like food, clothes, and hygiene. When people fir

death row, they arent the most stable, and these things that David did for the

them down a few notches. (App. 3)

David helps the new guys. When you come here from county you cant bring

stuff, just shower shoes and legal papers. So we try to get a bag together wit

might put in legal pads, someone else put in some stamped envelopes, anoth

puts a deodorant and someone else a toothbrush or toothpaste and David is a

He helps like that. (App. 6)


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they are standoffish and David talks to them, tells them not to be scared, trie

them down. (App. 4)

When we were on the Ellis Unit, people with an execution the next day coul

people to their cell to visit with them. I know David comforted a lot of peop

before they made their transition, speaking with them through the bars. It is

soft-spoken David is, but there is steel in him. He gives people comfort and

After all these years David has kept his humanity and if anything, it has grow

David helped me be honest with who I am here and now. He did this by lead

example. Watching Davids routine, and listening to him, made me more comyself and my place in this world. (App. 3)

Most people on death row see Mr. Powell as a teacher and mentor, and most

benefitted from his teaching and mentoring. He teaches basics how to read, how t

meaning. He teaches people how to live the lives they have been given. And he me

he has taught, helping them make sense of and respond to what is happening in their

his fellow inmates explain:

After the 8 grade, I started to be home schooled, after having unfruitful acath

experiences. As all learning depended on myself, I imagined at times the pe

and mentor. Through the years I never found it, but in meeting David Powelto realize such a person is possible. When I met David, I felt he was a teach

follow, and that he would lead me to a place not questionable to myself or to

outside. (App. 3)

My vocabulary and understanding of many subjects has improved tremendou

result of interacting with Mr. Powell. He shared many reading materials wit

materials about poetry, theater, and philosophy. When I didnt understand a

would ask Mr. Powell what it meant, and he would have me use it in a sente

Mr. Powell taught me proper English. He showed me how to write a letter p

without grammatical errors like run-on sentences. These were things I didn

school, but Mr. Powell showed me the importance of these things and explai


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David is an older cat, he tries to help people with their legal problems. The

offered me has always been mental, like just talking to me, or legal advice. H

lists of cases to look up and how to look them up, and I would take notes andto David and say I dont understand this and I dont understand that and he

and puts me back on the right track. I can never figure this stuff out but he g

(App. 6)

I have had a lot of intelligent conversations with David. Most guys back her

to talk on that level. Wed spend two hours talking about law and politics. H

take me through things I didnt understand dissect it and walk me through

clearer idea. Hes my professor. No matter what hes doing, he will always for you. (App. 8)

Davids persona, his whole being, is about teaching. He sees everything as a

moment. He would go to people who needed guidance. There are people ba

gangs, controlled by other people. He wouldnt shy away from them. He sa

people like that and encouraged them to think about things in another way.

David would get the court rulings and bring them to the day room. He woul

around and after every one had read them, discuss them and engage us in con

He regularly helped guys with their legal work guys that didnt understand

him stand patiently and tell people something over and over and over again u

it. (App. 8)

When I was out in the free world I attended college for a year this sparke

within me for learning. Sadly enough, this environment is extremely deploraand hatred pervade throughout Texas Death Row. Animosity amongst inma

common and antagonistic behavior by prisoners towards staff members is a f

occurrence. When I first arrived here I was shocked by this. Constant screa

general nonsense was what went on daily. I thought Im going to lose my m

find something to read! I expressed this to my neighbor and he said You n

David Powell, hes the guy downstairs in 46 cell. (App. 13)

The next day I met David. It was very evident that he was not a common p

asked him for some reading material and David introduced to me to several g

including Dostoyevsky and Gandhi writers who I still read today with a pa

quickly learned that David or Professor Powell as many call him was q

extraordinary individual. (App. 13)


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I cant think of anyone that has given me more intellectually and spiritually

has so much to offer. There are so many people that can learn from him. (Ap

I saw David a lot on Ellis because I was a porter. Every time I saw him he w

studying, talking to someone about the law. In all the years I have known D

never seen him read a novel. He reads about innovations in science a lot h

learning and sharing his knowledge with others. He does not sit back and id

time. (App. 8)

Many inmates commented on Mr. Powells positive attitude and demeanor a

has inspired the same attitude in others:

Meeting David showed me that learning never ends. He showed me this [is]

about academic subjects, but learning about yourself and living more positiv

showed me that life in prison is more appropriately lived for the people who

me on the outside world, friends and family. (App. 3)

There was a time when David noticed that I was becoming affiliated with a

counterproductive group of people. He brought this to my attention so that I

refocus my attention to my friends and family knowing that anything though

would hurt them more than it would me. (App. 3)

David is a positive influence on people here on death row, especially the you

When new guys come to death row some of the gang old timers might pull th

and try and fill their heads with crap. David will try and show them that theto go down that avenue, they dont have to go with the gangs or drugs and al

will find out what they like and teach them to fight for themselves. Most of

listen to him, I listen to him. He taught me to fight for myself. (App. 4)

Mr. Powell has had a positive influence on many of the people incarcerated h

conform to your level of vocabulary to communicate with you. He has impa

people on Death row in a positive manner. If you listen to Mr. Powell, hell

(App. 5)

I dont never see my family, I talk to David and he says they got their world

and we got ours. We talk a lot about family, about prison life and how it cha

is not the person that he describes himself as once was. To me David [is] ju


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harbor hate for anything or anyone. I have never heard him say a bad thing a

or anything. David has definitely made me a better person. (App. 8)

The guards would treat him as a friend because David carries himself well.

there dont carry themselves like David. He was a gentle man. Im older tha

I felt like he was more experienced than me in the way he carried himself. (A

David helped me adjust to death row, I was new here, I didnt know what wa

didnt know what would go on, David helped relieve some of that tension an

for that. When you get to death row you can get around the wrong people th

bad to be here and then you can get around people like David who can makepositive experience. (App. 11)

David is a positive influence to other inmates, and not only because of his ag

his passive and quiet nature, I personally do not consider him a dangerous pe

does any other officer or inmate that I know. (App. 14)

David is a positive influence on Death Row. People go to him for advice, le

and also spiritual advice. A lot of guys dont understand the legal arguments

briefs, but David is able to break it down to them in laymans terms. When

questions about their appeals, they say go ask the professor, the professor

Powell. (App. 12)

Mr. Powell has made peace between inmates in conflict with each other and

correctional officers from assaults by inmates:

When there have been rifts going on between two people David will wait for

die down, then, softly-spoken, he will tell them what he thinks, and you can

is saying is well thought out. These guys will be silent and listen and process

said and then say that old farts right. Guys here listen to him. (App. 4)

Over the 8 years that I have known David I have seen him steadily work to b

influence. Many times he has helped relieve tension between inmates and bofficers and inmates. One particular occasion comes directly to mind: A you

guy came out to the recreation cage. (Which is situated directly in front of th

cells.) He was extremely upset and belligerent and it was very obvious that

situation was going to occur between him and staff members. (App. 13)


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because the inmate was speaking about engaging in violence against staff me

(App. 13)

David has always strongly promoted the idea that all forms of violence are c

and thoroughly unacceptable. David has taught others that if, say, a new pol

occurs that guys are upset with, they should never take this anger out on staf

(App. 13)

David is a very passive person. When a situation of conflict arises here, man

choose to resort to violence or a physical refusal to comply. David is a perso

able to maintain his composure, and he resolves conflict through the proper c(App. 14)

I remember one occasion when David was being denied his recreation by an

Instead of lashing out on that officer like many inmates do, David calmly req

speak to a higher ranking official. When the ranking officer spoke with Dav

his grievance calmly and in a rational manner. The officer checked that he w

recreation, which he was, and he was given his recreation. (App. 14)

Mr. Powell is known for treating other people with respect. He seems to hav

making everyone feel that he has time for them and is eager to attend to their interes

Mr. Powell used to give me scripts to read from plays. I would read them an

about them with Mr. Powell. He actually asked me for my opinion and then

me. This made me open up to Mr. Powell, and he would explain to me otheview about the play. This gave me a sense of belonging that doesnt exist in

that never existed with my family. (App. 5)

In the past 10 years I have maybe been in contact with him maybe 4 of the 10

when I see him, he always takes time to talk to me. (App. 6)

David always engaged me in conversation. He never talked at you, always w

Wed discuss a topic and he gave me other ways to think about things so youget tunnel vision or one-dimensional thinking. I never once felt stupid aroun

despite his extraordinary intelligence. I just always anticipated learning som

him. He was like one of your favorite teachers at school, where you couldn

to their class. David is one of the most knowledgeable people I have ever m


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Just before Mr. Powell left my pod, I consulted him about writing a letter to

family. The first thing he did was make sure I was sincere in my apology to t

(App. 5)

It is clear to me that David is remorseful for the death of the police officer. N

the loss of officers life, but for the pain it has caused the officers family me

this remorse in David through conversations with him. When he talks about

the officer was and the pain the officers family goes through, the degree of e

David has is clear by the emotions he displays. (App. 14)7

Many on death row consider Mr. Powell a good friend. He shares deeply in

others he listens, he questions in a caring way. he shares his feelings about his ow

looks out for the well-being of others, he comforts others, he knows their interests a

tries to accommodate them:

I really feel that David is my teacher, but he is also a very good friend. He is

can tell a joke. He is so knowledgeable that I can talk to him about anything

politics, but also football and music. Hes very easy to get along with. (App

Im not someone who opens up too much, but I knew if I did have a problem

to David and he was someone that would give me a meaningful, straight ans

just has a comforting aura. It is a comfort to me just to have him around, to

presence. (App. 8)

I consider David a friend, I never heard anything come out of his mouth in a

light. He is an honest person. He is a conscious thinker and he gives me int

stimulating conversations. Our conversations assure me that Im not the onl

thinking about whats going on in the world around us we talk about grow

(App. 9)

Davids friendship means a whole lot to me, I been knowing David 11 yearshad a disagreement. Hes a friend to me where my freeworld friends and fam

(App. 9)

Back here you can tell when someone is in a different state of mind than the


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coffee? He has done this for me. Hes my friend, he shows concern and ca

To me David is a friend. It may have started that I go to him about a legal qu

then we talked about different things and now hes my friend. (App. 6)

Here at this Unit we have been on the same pod a few times and we have bee

same section one time. Dave used to help me out by swapping out on rec. I

go outside its like a hat box out there. Dave knows I dont like it out there s

inside and I am outside he would swap with me. Dave is my friend. (App. 7

In 2003, I was going through Hepatitis C treatments, taking Interferon shots.

time I was embattled with depression, dealing with anger issues due to mediDavid Powell was a crutch of a friend during this time. David pushed me to

order to cope with the depression and anger. When I was feeling too down t

and work out, David would say to me you young people have no staying po

motivated me to get up, go out, and show the old man. This support from D

before, during, and after my treatment. (App. 12)

I have been able to confide in David. Im comfortable talking to him and I k

what I tell him, stops with him. (App. 2)

I trust David Powell. I trust him as a person that doesnt live entirely selfish

considers where he is at, and who is affected by his actions. There are a lot o

people here, but David is able to communicate with people in a rational way

I love David like a brother. I have seen him grow as our hair has turned gray

He is an open person who has encouraged me to be more open too. David mdifference to the people that interact with him. I have valued him greatly as

who challenges me. (App. 2)

Mr. Powell has inspired many others by the way he has lived his life. His ex

encouraged other death row inmates to live their lives more positively, to have more

for other people, and to be of service to others:

David showed me info on legal cases and thats how I started trying to study

he inspired me to dig deeper into my case. David has been an inspiration to

just sit back and watch my attorneys. David encourages me to stay on top of


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David has been a personal inspiration to me as well. He taught me that it is

necessary to live a positive and productive life even while on Death Row.

here I have become an artist, poet, writer and have followed in Davids footsmentor. I have become a certified Yoga Instructor and I am currently taking

courses via correspondence and I have been maintaining an A+ average. Da

definitely been instrumental in helping me achieve all of this. (App. 13)

In the past Ive been known to not be the most compliant individual when it

following the rules. After moving back to the same section as David Powell

interactions with him have persuaded me to direct my energy to a more posit

productive path of solving my problems. In the last year Ive maintained a leclassification, which is the most privileged level. Recently, even the guards

complimented me on my good behavior. (App. 14)

Instead of focusing my energy on resisting the policies that I disagree with an

unjust, I have diverted my energy toward more noble causes. I spend my tim

awareness toward certain non-profits like Smile Train, an organization that p

surgery for under privileged children. (App. 14)

David is a mentor to me on many levels, personal, legal, spiritual and intelle

the old wise one, he is my go-to guy. David has inspired me to carry the to

continue to counsel and mentor those in need. (App. 12)

Mr. Powell has taught me and shown me what love is. He has shared with m

letters from his partner, showing me that love is shown through actions. He

me to write my own family despite conflict we have, and to show them my lwhen they dont write back, and to continue to write them. (App. 5)

Im currently corresponding with 4 penpals who have asked me for advice.

college students and mothers from Europe. I opened myself up to them, and

they have come to me asking for advice on personal issues. Sharing the emo

I have experienced with Mr. Powell to my penpals showed them that I can g

emotional level, and this is what helped them open up to me. It is because o

that I have been inspired to help others. (App. 5)

In sum, people on death row cherish David Powell. He is consistently kind.

calming. He helps people learn about themselves and grow. He helps people stay r


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eloquence:

David has been a very important person in my life. Whenever he was arounalways trying to teach me. He tried to teach everyone around him and to enr

lives. He preferred human interaction to anything else. He would rather talk

someone than listen to the radio. He openly showed his humanity. (App. 8)

You can always tell when someone is feeling down and David is someone w

reach out to people, tell them to keep hoping, to keep their head up. David i

most kind people I have ever met. He would always be aware of the people

He is aware of the power of words and always considered that before he spomany beautiful qualities. There arent many people like him. (App. 8)

I call David Powell Mr. Powell because I consider him a teacher, an elder

respect, and a father figure. My family does not have any contact with me, b

Powell gives me an incredible sense of belonging by listening to me, talking

opening up to me on an emotional and intellectual level. (App. 5)

I consider Mr. Powell a father figure. My biological father was incarcerated

the first 18 years of my life. Mr. Powell gave me a warmth of acceptance th

to open up without fear. Mr. Powell listened to me and taught me things tha

had the opportunity to do with my own father. Mr. Powell taught me that a m

and that a man can cry and stand straight. When an individual here passed a

Mr. Powell that I wanted to talk to him, they would say hey Mr. Powell, yo

to know.... (App. 5)

David said to me, I dont know if Im helping you or youre helping me, b

would talk together. But I knew it was him helping me. Even though I was

so wise. To me he was just a good man. And he was real talented. Just bein

being who he was helped me. (App. 10)

After I had spent time with David I would sit and think how many people co

from what he had taught me that day. I feel that he has so much love and wi

and it was not wasted on us, but I felt it was a terrible loss that more people cbenefit from a person of his capacity. (App. 8)

Even though David is scheduled to be executed he is still acting as an educat

positive influence. If David is executed his death will take away a person w


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people here are guided by peer pressure. When David does something, he w

its on the side of right. (App. 8)

It would be a tremendous loss not only to prison society, but to society as a w

away a life that has touched so many lives. (App. 12)

B. Free World Citizens Accounts of Mr. Powell

People out in the world have found David Powell to be just as others on deat

found him. Eleven of these people have provided statements to the Board which are

Appendices 15-25. These people include the following:

Rev. Larry Bethune, senior pastor of the University Baptist Church in Austin

15),

Amon Burton, attorney in Austin and member of the faculty of the Universit

College of Law (Appendix 16),

Dr. Clement Struve, Mr. Powells maternal uncle and a retired ophthalmolog

Christi (Appendix 17),

Frances Sissy Farenthold, resident of Houston and former Texas legislator

president (Appendix 18),

Judith Filler, resident of Austin and former executive director of the Texas A

Human Needs (Appendix 19),

Yolanda Sharp, resident of Austin and former store owner whom Mr. Powel

with a worthless check (Appendix 20),


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Vik Bahl, former graduate student at the University of Texas and now Profes

English at Green River Community College in Auburn, Washington (Appendix 23),

Jamie Watson, former graduate student at the University of Texas and now A

resident (Appendix 24), and

Mariann Wizard, college friend of Mr. Powell and Austin resident (Appendi

Many of these friends have seen the same gifts as teacher and educator that i

death row have experienced:

During his years in prison he has taught many prisoners on death how to read

He can make a very significant contribution to the general prison system by

educate other prisoners. He literally is capable of running a school within th

population of the prison. And that is desperately needed because so many in

population are released back into society. (App. 16)

As I look back over these years he has taught me so much about the human c

practices his non-violence in his speech, his articulation of his thoughts as w

actions. In 32 years as an inmate he has been a model of good behavior. (A

Often in our discussions he is the one who will gently point out that there are

positions to consider, ones that I had not considered. For me he has been a tpatience, forbearance and equanimity. (App. 18)

In our visits over the years the tables were turned. I did not bring the outside

him. He taught me by setting a standard as a caring and perceptive human b

reached out to help those incarcerated with him and to share his thoughts and

with those who live outside the walls. (App. 18)

David is a gifted teacher who puts a great deal of care and thought in developappropriate lesson plans, often filling them with humor, as he did with my ph

therapy exercises, making the learning -- fraught with stress for men who ha

education -- interesting and achievable. His teaching was careful to preserve

dignity, removing the obstacle to learning which their previous failures had c


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life in ways I could never have imagined, and I am very grateful to have foun

has made a better person of me. (App. 21)

During his imprisonment, he has served as a devoted teacher to fellow prison

over 97 percent of all prisoners eventually returning back to our neighborhoo

budget cuts already being implemented at the Texas Department of Criminal

need people like David Powell behind bars helping rehabilitate his fellow pri

Research has never shown the death penalty serves as a deterrent, but researc

documented the efficacy of rehabilitation. Life imprisonment would allow D

to continue to give back to society by helping rehabilitate other inmates. In t

public safety favors life imprisonment rather than the death penalty. (App. 2

The deep and abiding friendship that Mr. Powell has extended to so many on

has also been extended to many on the outside. Judith Filler explains how when she

Mr. Powells friendship provided the critical support she needed:

Some years ago, I began being ill with a mysterious malady. It was twelve ywas diagnosed, by which time a rare cancer was spread throughout my body

family and none in Texas and all that time, David was my principal support.

major in college, he read the esoteric articles I downloaded from the web and

him. From these, he made up lists of questions for me and studied the docto

to the best specialists. I am still alive and functioning years after my project

which I give him much credit. Without his aid, I dont know how I could ha

through this difficult journey.

The cancer diagnosis was preceded by years of increasing illness, through wh

coached me. Early on, when I needed physical therapy and he was still in Tr

he would trade his popcorn, coffee and other prison perks for more phone tim

through my painful exercises multiple times a day. He spent the time betwe

devising funny counting routines to make the painful exercises bearable. I w

always very pleasant in these sessions, yet he was invariably patient and cari

gentleness I had never before or since encountered.

Appendix 19.

John Seebach met Mr. Powell because his fianc Norma Padilla had been a g


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Judith Filler connected Mr. Seebach with Mr. Powell in the wake of this tragedy. M

writes of the friendship Mr. Powell extended to him:

It was a true friendship David was a person who made you feel at home an

whom you immediately felt comfortable. We would speak of life, literatu

philosophy and any number of other subjects. I found David to be erudite, e

incredibly sensitive not qualities generally associated with hardened crimin

encouraged me as I prepared to embark on a graduate career. He was happy

him I had started dating again. I tried to describe to him as much as possible

was doing on the outside, which is much more difficult than it sounds....

He and I became friends during one of my lifes darkest moments. He tried

help me through those moments. And in many ways he did. In many ways I

damaged. Maybe he understood given the circumstances in his life. I dont

looking back on it now, what a strange state of affairs! Here was David, a m

of capital murder, reaching out to me, just some guy who was all of seven ye

he was handed his death sentence! But, such is David. With the exception o

horrible night, he tries to make the world a better place for everyone.

Appendix 22.

The same generosity of spirit was extended to Vik Bahl in the friendship he

Powell developed:

[W]hen we began communicating by telephone I was immediately struck by

unpresuming manner, and he consistently demonstrated sensitivity, thoughtf

warmth. I never felt that he was asking anything from me. We didnt discus

but we discussed my academic work, my new experiences with teaching, and

state of the world, including the criminal justice system. Eventually, we lear

each others personal lives as well.

Appendix 23.

Many of Mr. Powells free world friends have seen and experienced the sam

exemplary qualities that many on death row have experience and remarked on, inclu


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frank and direct, and David did not pretend to agree with me when he did no

experienced him as intelligent, insightful, and genuinely interested in my exp

conversations were mutual. (App. 15)

his steadfast helpfulness

David is an extraordinary listener and many young people found in him the e

needed to help them through difficult times and decisions. He helped many

way through college choices and helped them to understand and better use re

their studies. (App. 19)

his inspiration to live life better and more positively

David Powell has been a supporter of peoples positive creativity. Over the

word of mouth, he became a friend to a number of poets, playwrights, photo

artists who found inspiration from him. The quality of his spirit, especially c

the circumstances of his incarceration is truly exceptional and inspiring. (Ap

From time to time, I received letters or calls from men leaving prison or jail thank David for them and telling me how he had changed their lives. They s

sent me art he had encouraged them to do and they always talked about how

had changed their view of what they could be and do in life, that they were g

out and do good rather than the kind of bad they had done before. (App. 19)

his engagement in peacemaking in the prison

I had a role for 10 years as a volunteer contact for Amnesty International wit

Texas death row. During that time I got to know many men there, four of w

and many who wrote me. Their letters often included stories of David Powe

in intervening between violent inmates (they were not in isolation then) at th

own life. Again and again, I was told that he is different from everyone else

row, that he is known as a peacemaker and wise counsel, that he has never u

dealt in contraband. The 7 guards who testified on his behalf at his [third] tr

what the other prisoners had told me. (App. 19)8

and his positive approach to life


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He has not waited 32 years, plotting his next act of violence if he gets out of

instead he has taken what he is dealt, and has tried consistently to try to mak

it not just for himself, but for so many around him. (App. 21)

As with the death row inmates, many of Mr. Powells friends have comment

deep remorse Mr. Powell feels about the killing of Officer Ablanedo, a remorse that

apparent to anyone who spends much time with him:

In our conversations about his specific crime and trial, David reflected genuinot only for the family of Officer Ablanedo, but for all of the people his actio

including his own family. (App. 15)

He feels extreme remorse for the tragedy involving the Ablanedo family. (A

David was heartsick over the damage that the murder he was involved in had

asked me if there was any way he could help the grieving family, but his atto

counseled him against trying to connect with them. As an alternative, I agreother victims of murder he could try to help. Over the years he was in Austi

fact, introduce him to half a dozen people I happened to meet whose loved o

murdered. I met these individuals by chance and, hearing about their loss, I

thought it might help them to be able to talk about their pain and anger with

murderer. Though they were nervous, after hearing about the kind of person

they agreed to meet with him. Several went only a few times, while several

personal friends of his. All of them reported to me that knowing him and talhim about their pain had helped them to heal. One woman, whose mother ha

murdered, wrote a book on forgiveness after visiting with David for some tim

His remorse for death of Officer Ablanedo has never faltered nor has his sorr

family of the murdered man ever ceased. He has expressed these feelings to

(App. 19)

You cannot visit with David, know David, interact with David, and remain ohis remorse. His demeanor, his gait, his eyes especially they speak reams o

sadness, of the desire to be forgiven. He is a man who has paid his debt to s

interest. To know David is to know that justice has been served. (App. 22)


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Yolanda Sharp, has written the following:

David was a customer of Circle K when we met. He gave me checks withou

When David was in jail here in Austin, he called me by telephone to apologi

me that he wanted to pay me what he owed. Thinking that he found himself

situation, I accepted his apology, but I did not accept the money he was offer

David and I established a friendship. I consider that David is a good person

good-hearted.

Appendix 20.9

Resonating with a theme that ran through many of the death row inmates af

many of Mr. Powells friends and family have noted that the continuing belief that M

a danger is utterly unfounded, and that Mr. Powell can do far more continuing to liv

death would accomplish:

David Powell has reached out to numerous people during his long stay on de

formed meaningful friendships. I find the contention that he is a continuing

disingenuous and false. To the contrary, I think his experience is meaningfu

story a cautionary tale that is more likely to be a deterrent to those who hear

(App. 15)

Mr. Powell presents one of the very unusual cases coming before you seekin

He made a terrible mistake when he was in his 20s, but he has an unblemishe

prison over all these years, he has matured and is extremely intelligent. Mos

importantly, from my visits with him he does not have a criminal personality

capable of making a contribution to society. (App. 16)

He is such a fine person that I hope you can see past the worst thing he ever

David Powell is not the one who took Officer Ablanedos life. The real Davgiven better life to everyone he has had contact with in prison. (App. 17)

If he were allowed to live, he would still be such a valuable asset to society!

continue to help younger people get off the wrong track, inspire them to bett


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David live would not pose any risk of violence. (App. 21)

Reiterating the universal view of death row inmates, Mr. Powells free world

no good coming from his execution, only profound loss:

His execution would be grievous to a number of people who consider David

including me and would not bring healing to the family of the victim. I be

meaningful redemptive purpose will be served by Mr. Powells execution, an

you to choose clemency as a more productive service for the healing of our c

(App. 15)

After 32 years on death row, a life sentence for some, what public good does

execute David Powell? Will the citizens or the state of Texas be better for h

submit that we will, in fact, be poorer, and I again request clemency and mer

of David Lee Powell. He unreservedly deserves punishment for his crime. B

injection after so many years is vengeance, not justice. (App. 22)

I have often imagined that under different circumstances he would have beenas a community elder, providing resources of strength and leadership. As yo

many have attested to his rare gifts. How has he won the respect, friendship

so many perfect strangers from various walks of life? Isnt it a mystery that

rebuild or resuscitate his spirit in this way? Though nothing can excuse or m

the heart-rending loss of Officer Ablanedo, I cannot understand what we wou

extinguishing Davids unique and generous spirit. (App. 23)

In addition, the execution of Mr. Powell will further decimate his family, alr

hurt by the loss of him for 32 years on death row:

I saw the same regret and sadness when I called on Marjorie Powell, Davids

after my visit with her son. He was not yet dead, but he had been lost to her

This has been devastating for Marjorie. She has spent all of her money for Dthis has left her severely mentally and emotionally disturbed. (App. 17)

Through all the years I have known David Powell, he has been constant in hi

his family and sorrowful for the tragedy, which destroyed both his life and an


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awful I have never felt before. Just since the execution date was announced

pounds because I cannot eat or sleep. (App. 21)

In the end, the views of those who know David Powell outside the walls of th

Unit are the same as those inside its walls: Mr. Powell is someone who contributes

to life than his execution would contribute to the symbolic goal of retribution 32 yea

murder of Ralph Ablanedo. An Austin police officer who is not willing to let his na

said the following in an email to forwarded to undersigned counsel

I met Ralph Ablanedo and his wife. I know Bruce Mills, Ralphs partner wh

Ralphs widow and adopted his children... We all wanted David and his girl

put to death for that needless murder of a good man and a good cop. Throug

appeals, we cursed a justice system that kept giving him chances to avoid be

for that callous act. The newspaper story says that David has apologized for

he did terribly wrong in a few frightened seconds of his life, but that is notcase. He fired the shots not because he was afraid, but because he was angry

establishment and the pigs. It was not a few frightened seconds, because

the life that led him to those seconds for years. He was carrying an AK-47 a

pack full of drugs and a hand grenade. He must have made some decisions a

might do if the cops stopped him long before it even happened, or why carry

arsenal? That David Lee Powell deserved to be put to death, I think.

However, that was a very long while ago. I think that punishment should be

sure. I think David should have paid for his decisions and his crime with his

ago. I do not think that putting him to death today will serve any good purpo

death penalty should be a deterrent to horrific crime, a message that such crim

be tolerated, and a means to ensure that someone who is capable of such crim

repeat that behavior ever again. That message loses its potency when 30 yea

before the sentence is carried out. If David Powell was the type of man who

blaming society, or spewing forth anger at the injustice of it all, or had been in prison, then I would have a different opinion, I suppose. The fact is, thou

to agree with one of the speakers in that You Tube film. The man who will b

death for the killing of Ralph Ablanedo is not the man who committed the cr

David Powell is an elderly man who has shown what I believe to be true und


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I dont have the answers. Im in favor of the death penalty. I just wish it had

while some part of the David Lee Powell who so needlessly and brutally kill

Ablanedo still lived. The David Lee Powell who sits on death row today is n

who was sentenced to death, I fear.

Vik Bahl speaks for others in the community of Mr. Powells friends when gets to th

as the Austin police officer:

So much was lost that night. Incalculable losses. First and foremost, Office

Ablanedos life but also other losses for the Ablanedo-Mills families that havto unfold over time. And for Davids own family, too. And must we not als

of Davids own life over the last 32 years and the beauty and potential it had

David carries the spiritual, emotional and psychological burdens of all of the

he has never attempted to shirk or lift them. Yet he has rebuilt a life and a p

that is capable of genuine and compassionate connection with others, both in

outside prison. He manifests unmistakable generosity, is sensitive and solic

others, and embodies modesty, kindness and dignity. His wisdom and humiof relentless self-examination and an unblinking awareness of lifes sufferin

what he himself irreparably caused.

I do not ask that David be spared so that he can go on enjoying life. Please s

because we have discovered beyond a reasonable doubt that he consistently a

extraordinarily contributes something valuable to the lives of others. Prison

seemingly a world apart. What happens inside, how lives and relationships uthe culture that evolves within impact all of us and are part of us. Let David

force for good inside the dark and desperate world of the prison, and let clem

be an occasion for all of us o discover our common humanity and what the h

is capable of achieving.

Appendix 23.

II. Mr. Powell Is, Without Doubt, No Longer a Future Danger

Viewed from the perspective of future dangerousness, the testimonials given

Powell by thirteen prisoners and eleven free world citizens boil down to one commo


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third jury that he did present a risk of future dangerousness. The jury reached that c

more than eleven years ago, on March 6, 1999. The jury could not then have known

Powell would cause no trouble in prison over the next eleven years. The Board now

Moreover, the jury was not presented with the testimony of other death row inmates

with Mr. Powell for years and knew him better than anyone and who, to a person,

the assessment of inmate Roger McGowen: David has a core that doesnt change.

here are guided by peer pressure. When David does something, he will make sure it

of right. Appendix 8. The Board now knows this and a lot more about Mr. Powell

third jury knew. On the basis of the passage of more than another decade without in

with abundant evidence of good works by Mr. Powell since then the Board is in a

position than the third jury. The Board cannot have any doubt that David Powell no

presents a risk of danger.

However, if the Board needs more, there is more. In December 2007, Mr. P

seriously mentally ill. He was hallucinating (both hearing voices and seeing things

planning on killing himself. Appendix 26 (report of Dr. Seth Silverman). At the r

counsel for Mr. Powell, Dr. Silverman board certified in adult, addiction, and fore

psychiatry began seeing Mr. Powell therapeutically. The intervention was success

Silverman explains:

I have evaluated David Powell and treated him in psychotherapy for well ove

As stated previously, Mr. Powell was initially evaluated because of concerns


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constructively and therapeutically, and form a healthy relationship with me,

came to understand how his psychotic internal world was just that. And, wit

understanding and trust, the android-like robots began to disappear during th

months of treatment.

Mr. Powell was able to heal within months and has been able to interact mor

constructively, logically, consistently, and empathically with his internal and

world.

Appendix 26.

As a result of this intervention, Dr. Silverman has continued to see Mr. Powe

present. On the basis of the scores of hours he has spent with Mr. Powell, Dr. Silve

concluded:

Mr. Powells intellectual functioning probably puts him in the exceptional ra

(assessed by vocabulary, ability to integrate and abstract information, short arecall,). This functioning allows him to introspect and learn and to relate the

of his choices at a very sophisticated and complex level. He has demonstrat

abilities in his interactions with other inmates on Death Row and with me.

1. His ability to understand the path and decisions he chose that

killing a police officer is unique. His superior intellect and m

him to trace the decisions he made--one by one--to demonstrabad decision affects the likely making of another decision, an

so on.

2. He also has the ability to relate his choices in prison and how

choices did not result in the kind of outcome he anticipated.

the ability to relate how he learned and made different choice

that have resulted in outcomes he did anticipate.

Succinctly stated, David Powell has a unique ability to educate others about

choices have affected his path and he has a unique ability to educate other

to learn and make better choices.


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own untoward footsteps and paths with great clarity and wisdom. David Pow

ability to educate others about how his choices have resulted in a path that re

severe criminal behavior. And he has the ability to educate others about how

make better choices.

David Powell has unique insight, experience, and intellect that has helped ot

all medical probability if given the opportunity, will continue to help others t

likely consequences of their choices before they are made, and as a result, to

choices. His ability to contribute positively to the lives of other inmates in T

my years of experience as a forensic psychiatrist, unmatched.

Id.

Directly addressing the risk of future danger, Dr. Silverman also found the ri

mninimal:

Mr. Powell is at minimal risk to reoffend .

1. He has one violent offense and none after the instant offense

almost 32 years of incarceration.

2. He has not used drugs and ongoing prevention of that use furt

minimizes the chances of him committing a future violent off

3. He is too old to commit a future violent offense [on the basis

research studies showing that inmates of Mr. Powells age, w

any other factors into account, rarely commit acts of violence

Id.

Accordingly, expert risk assessment, together with the experiences of twenty

who know Mr. Powell extremely well, point to but one conclusion: Mr. Powell doe

any risk of dangerousness now or in the future. As the Board knows, there must be

probability that a capital defendant such as Mr. Powell will be dangerous in the fu


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not go forward.

III. Mr. Powell Would Not Have Been Sentenced to Death Had the Alternat

to a Death Sentence Been Life Without Parole

There is an additional reason to recommend commutation, because the altern

death sentence for Mr. Powell in all three of his trials was a parolable life sentence,

without the possibility of parole (LWOP). Recent juror interviews have shown that

would not have been sentenced to death had LWOP been an option.

Counsel for Mr. Powell is in the process of conducting interviews of the elev

jurors from his third jury to determine whether, had there been an option of life with

possibility of parole, any juror would have voted differently on the future dangerous

issue. Thus far, he has conducted interviews of five jurors. One of these jurors, Ga

has provided an affidavit in which she says that, had there been such an option she w

have voted to find that Mr. Powell was likely to be a danger:

When the trial concluded, we went back to the jury room to deliberate. We w

answer two questions. I do not remember the exact wording of the questions

whether Mr. Powell killed Officer Ablanedo deliberately, and the other was

Powell would be dangerous in the future. We were told we had to agree una

the answers to these questions. We understood that if we answered yes to

questions, Mr. Powell would be sentenced to death.

We easily agreed unanimously that the killing was committed deliberately. W

harder time on the future danger question. Several jurors believed that Mr. Pnot be dangerous if he stayed in prison. Life without parole did not appear t

as a sentence then. If there has [sic] been life without parole, I believe that s

would have voted no on the future danger question. I know I would have.


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Ms. Olsen wrote in the Chronicle:10

Texas was the last of the nation's 35 death penalty states to adopt life withou

alternative in capital cases. The law offered a legal guarantee to jurors and palike that convicted killers sentenced to an isolation cell in lieu of an executi

could never be freed.

Statewide, only about 50 inmates have been added to death row since the law

S 1 200 f S b 2001 S b 200 h f

possibility of parole, jurors tend to sentence people to death much less often. In res

conducted by the Capital Jury Project, involving extensive interviews with people w

actually served as jurors in capital trials that went to a penalty phase, researchers fou

following:

Using data gathered from the South Carolina segment of the nationwide Cap

Project, we find that capital jurors, like members of the general public, do in

the death penalty. But jurors, like members of the general public, have doubfairly the penalty is administered. Moreover, and yet again like members of

public, jurors are also prepared to abandon the death penalty in favor of life

without parole (LWOP), especially if the offender is also required to make re

the victim's family (LWOp+).

Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells, The Deadly Paradox of C

Jurors, 74 S.CAL.L.REV. 371, 373 (2001).

Consistent with this data, in Texas the death sentencing rate has gone down b

40% since 2005 when LWOP became the alternative to a death sentence in a capital

See American Bar Association, The State of Criminal Justice 2010 215 (April 2010)

Harris County Loses State Lead in Executions,Houston Chronicle, December 28,


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This information raises a very substantial basis, apart from the other reasons

herein, to recommend the commutation of Mr. Powells death sentence. In a recent

capital case, the Pardon and Parole Board recommended clemency, in part, because

sentenced condemned prisoner, Richard Smith, to death did not have an LWOP opti

sentence. As reported by the Death Penalty Information Center on April 5, 2010,

Governor Brad Henry of Oklahoma recently granted a stay to Richard Smithscheduled for execution on April 8. The governor wanted to allow more time

the recommendation of the Oklahoma Pardon and Parole Board that Smith's

sentence be commuted, and to meet with prosecution and defense attorneys t

perspectives. Smith was convicted of a 1986 murder during a time when ev

fundamental errors in the criminal justice system was not as apparent as it is

after his conviction, Oklahoma's legislature passed a law adopting life witho

a sentencing option. Three jurors from Smith's trial have since signed affida

that if life without parole had been an option, they would have voted for it. Jalso signed affidavits recalling that they were unimpressed by the perform

Smith's defense lawyer at trial. In 2005, a U.S. District Court stated that, by

standards, the defense's failure to request a psychiatrist to assist him for the p

was unreasonable.

http://www.deathpenaltyinfo.org/oklahoma-execution-stayed-jurors-did-not-have-li

role-option (emphasis supplied). On May 19, 2010, the governor granted clemency

Smith. Appendix 28.

Echoing these concerns, Ohio Supreme Court Justice Paul E. Pfeifer a form

Republican legislator deemed to be the father of Ohios death penalty has recent

recommended full review of all the cases of people sentenced to death in Ohio to de

which cases warrant execution and which should be commuted to life without the po


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sentenced to death, the article notes, Pfeifer said the majority of the old cases, had t

tried today under current law and societal standards, would not have resulted in capi

punishment.

Accordingly, even apart from the other grounds for clemency, the Board sho

recommend a commutation for Mr. Powell. Had his jury been give the LWOP alter

death penalty, he would not have been sentenced to death.

However, the Board should not consider this ground apart from the other two

presented herein, because all three grounds are interconnected. Mr. Powell is an ind

good person in prison, as good as any person could be, having made innumerable po

contributions to people in and out of TDCJ. He indisputably does not pose any risk

he is allowed to live out his life in prison. And, had his most recent jury been given

sentencing him to live out his life in prison, the jury would not have been unanimou

and for that reason, Mr. Powell would have been sentenced to life. For these reason

should recommend commutation of Mr. Powells sentence.

MR. POWELLS REMORSE

While not a ground for commutation, Mr. Powells remorse for the killing of

Ablanedo does bear mention, because it provides important confirmation that Mr. P

kind of person inmates on death row and people in the world believe he is. Many pe

in this application have referred to Mr. Powells remorse for the killing of Officer A


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Counsels advice to Mr. Powell is one that arises out of the way the legal sy11

and how the constraints imposed by it sometimes collide with the needs of the survi

indeed the needs of the offender, concerning apology and expression of remorse.

If Mr. Powell had taken full responsibility with his own words before he lost

round of his appealsin March of 2009 he could have compromised himself lega

ll li i i i h ld h l d i i l

mentioned by Judith Filler (Appendix 19), Mr. Powells attorneys would not allow h

before his legal proceedings were final.11

In the wake of the conclusion of litigation for Mr. Powell, he did write a lette

survivors of Ralph Ablanedos murder, and with the assistance of the Travis County

Attorney, the letter was delivered to the family. A family member decided to make

public. See Plohetski, Death Row Inmate Apologizes to Family of Officer He Kill

Austin American Statesman, January 28, 2010 (http://www.statesman.com/news/loc

inmate-apologizes-to-family-of-officer-198804.html). For this reason, counsel is vi

confidence by including Mr. Powells letter in the appendix to this application. See

29. The letter is too long to reproduce in the text here, but this is how it begins:

Dear families Ablanedo and Mills,

I am infinitely sorry that I killed Ralph Ablanedo. I shot Officer Abl

take responsibility for his death. In a few frightful seconds, I stole from you

world the precious and irreplaceable life of a good man, and destroyed your

shared love, dreams, and possibilities.

Every time I have seen you in the courtroom, your pain has been palp

rightly rebuked. There is no excuse for what I did. Counsel have always adv

show no emotion, but my heart breaks whenever I contemplate the enormity

In thirty-one years of imprisonment, I have had much time to contemplate m


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Appendix 29.

Counsel urges the Board to read the entire letter and to use it as a measure of

of the views of Mr. Powell held by the twenty-four people who have been quoted he

CONCLUSION

Mr. Powell requests, on the basis of the grounds set forth herein, that the Bo

recommend commutation of his death sentence.

In the course of considering his request, Mr. Powell requests a hearing befor

as provided for by Rule 143.57(g) of the Boards rules. He also requests a meetin

Board member as provided for by Rule 143.57(e) of the Boards rules.

Respectfully submitted,

_________________________

RICHARD BURR

TBA No. 24001005

2307 Union Street

Houston, Texas 77007

(713) 628-3391

(713) 893-2500 fax

Counsel for David Lee Powell


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Appendix 1


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Appendix 2


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AFFIDAVIT OF Lester Bower


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AFFIDAVIT OF Lester Bower

1. My name is Lester Bower. My TDCJ number is 000764. I am currently incarcera

Row at the Polunsky Unit. I arrived on Death Row May 10, 1984. I was incarcerateRow at the Ellis Unit prior to Polunsky.

2. When I arrived on Death Row in 1984, Dav

Documents

David Powell's Clemency Application to the Texas Board of Pardons and Paroles