D.A.s Are Asking Biden to End the Death Penalty. But Some Are Still Wielding It Themselves

On the morning of Jan. 29, 1998, Jill Barganier saw two men outside the home of her neighbor, Elizabeth Black, in Farmers Branch, Texas, according to a statement she later gave police. A short time later, Black’s husband arrived home, and found his wife and dog, both fatally shot. 

Barganier told police the men she saw were white, with shoulder-length hair. She identified the driver from photo arrays as Richard Childs. Less than a week after the crime, police administered a hypnosis session for Barganier at her request, according to her trial testimony. The session was conducted by Officer Roen Serna, who had never hypnotized anyone before, according to Flores’s court filings. The goal, Barganier would later testify, was to help her relax so she could create a “good composite” of the passenger.

Afterwards, she was shown an array of six photos, including one of a man named Charles Flores, an associate of Childs’s. At the time, Flores had short, shaved hair, as depicted in his mug shot. She didn’t choose anyone, according to court filings.

More than a year after the crime, Barganier testified at Flores’s capital murder trial. She wasn’t expected to identify Flores, but after she saw him at the defense table, she told prosecutors that he was the passenger, according to appellate documents. On the stand, Barganier told the jury she was “over 100 percent” certain that Flores was one of two men she saw outside her neighbor’s home. 

Eyewitness identification is a leading cause of known wrongful convictions, according to the National Registry of Exonerations. Memory, contrary to what was once popular belief, does not work like a recording; rather, it can be corrupted by a number of factors, including repeated viewing of a suspect.

Flores was convicted and sentenced to death. 

Flores claims he is innocent and is seeking a new trial. Fighting Flores’s efforts is a surprising adversary: Dallas County District Attorney John Creuzot. A former judge, Creuzot was elected in 2018, after campaigning on the promise of criminal justice reform. Once in office, he was hailed in national media as a progressive prosecutor in a notoriously conservative state. 

In January, Creuzot’s office filed a motion arguing Flores’s death sentence should stand. That same month, Creuzot was a signatory on an open letter to President Biden, urging him to support legislation to end the federal death penalty and to commute the sentences of those on death row. The letter was signed by 50 current chief prosecutors. 

Creuzot’s seemingly opposing positions are not unique among other reform-minded prosecutors, including several of the letter’s signatories, who still seek death sentences, oppose death row prisoners’ appeals, and take no action to remove those on death row. In some cases, they have petitioned the court for execution dates. 

The letter to Biden urged him to “disassemble the machinery of death.” 

“Every federal prosecutor who still seeks death sets in motion the wheels of a failed system and the government-sanctioned taking of the life of a fellow American,” they wrote.  

In a phone interview with The Appeal, District Attorney Creuzot said he does not oppose the death penalty. Capital punishment, he said, “should have a very, very limited applicability.” 

Creuzot, like some of the letter’s other signatories, is defending old death sentences on appeal and seeking new death sentences. While Creuzot’s office has filed a motion seeking death in an upcoming case and Creuzot reiterated in an interview with The Appeal that the office is seeking death in the case currently, he also said that the office might not end up trying it as a death case if and when it goes to trial. The Appeal asked the name of the person. Creuzot replied, “He has a very odd last name.” After he spelled it, he said, “Don’t ask me what that is, but that’s his name. I think he’s from an African country, but I don’t know that’s a name from the country he’s from.” The man is Billy Chemirmir, an immigrant from Kenya. He is accused of killing more than 20 people.

Fellow signatory Bexar County, Texas, DA Joe Gonzales is pursuing a death sentence in the case of Otis McKane, who is accused of shooting a police officer. McKane’s trial was scheduled to begin last year, but after being intermittently postponed because of the pandemic, jury selection restarted in March. In another case, Gonzales is urging an appeals court to uphold the death sentence for Mark Gonzalez. Gonzalez was convicted in 2015 of killing a Bexar County Sheriff’s Office sergeant, more than three years before Gonzales took office. 

“We will continue to closely scrutinize all cases with a pending death sentence and will support reversal of the death penalty in appropriate cases,” DA spokesperson Nicole Perez wrote in an email to The Appeal.

So far during Gonzales’s tenure, one death sentence has been reversed, with the DA’s support and assistance, according to Perez. There are currently seven people on death row from Bexar County. 

“Under DA Joe Gonzales, the District Attorney’s Office will only seek the death penalty in extreme cases,” wrote Perez.

As support for capital punishment has declined, prosecutors even in traditionally conservative districts have said the death penalty should be used sparingly. 

Texan Harris County DA Kim Ogg, who did not sign the letter, has criticized the death penalty as retributive. From 2017 to 2020, eight people from Harris County were removed from death row, according to the Texas Coalition to Abolish the Death Penalty; Ogg’s office supported at least several of these efforts.

“I consider myself smart on crime,” she told the Texas Observer in 2019, when asked if she was ‘smart on crime’ or ‘tough on crime.’ “I am part of the national reform movement.”

The death penalty should only be used, she has said, for the “worst of the worst.” In February, she supported Raymond Riles’s request for a new sentencing hearing. Riles, 70, is the longest serving death row prisoner in the United States. “Death penalty law has evolved and now requires jurors to be able to meaningfully consider and weigh mitigation evidence,” Ogg said in a statement. “In 1976, Riles’ capital murder jury was not given this opportunity.”

But Ogg has also sought new death sentences and defended existing ones, even in cases where there is evidence of an intellectual disability. Since taking office in 2017, three people from Harris County have been executed and two people prosecuted by her office have been sentenced to death; 76 people remain on death row. 

Florida State Attorney Melissa Nelson, who, like Ogg, has positioned herself as a reformer, has taken similarly divergent positions. Nelson defeated incumbent Angela Corey, who had made national headlines for her prolific pursuit of death sentences. 

“We’re trying to bring broader thinking about what public health and public safety look like,” Nelson told the ABA Journal in 2019. In 2018, Nelson launched the state’s first conviction integrity unit to review potential wrongful convictions. 

Nelson does not oppose the death penalty—she also didn’t sign the letter to Biden—but has previously told local media that there will be a deliberative process to determine when her office seeks death. However, she’s currently pursuing a death sentence in the case of Dennis Glover, even though he is intellectually disabled, according to his lawyers with the American Civil Liberties Union. In letters to community members, Nelson seemed to suggest that she would consider dropping the death penalty if not for Glover’s innocence claim and his plans to appeal his conviction. 

District attorneys are responsible for their jurisdiction’s death sentences, whether or not the sentencing occurred on their watch, said Natasha Minsker, a member of Los Angeles District Attorney George Gascón’s transition team on the death penalty. Gascón, along with an increasing number of candidates for prosecutor, had promised to never seek the death penalty. At least seven such chief prosecutors were elected nationwide last year.

“There are over 2,000 people on death row in this country,” said Minsker. “We cannot continue to ignore that.”

In December, Gascón, a signatory on the letter, announced that his office will seek to resentence the more than 200 people on death row from Los Angeles County. However, his office will not request a new sentencing hearing for Michael Gargiulo, according to the Los Angeles Times. In 2019, before Gascón took office, a jury sentenced Gargiulo to death, but he still has to be sentenced by a judge. 

During his first year in office, San Francisco DA Chesa Boudin agreed to resentence the one person on death row from his county, and has said he will not seek the death penalty. 

In 2019, California Governor Gavin Newsom imposed a moratorium on the death penalty, which halts executions for the duration of a governor’s tenure, but does not prevent executions under a future governor. That reality was most recently made clear at the federal level when former President Trump resumed executions after a de facto 17-year moratorium. Before President Obama left office, advocates urged him to commute the sentences of those on federal death row, said Minsker. But during his last few months in office he removed only two people from death row. 

Local prosecutors can, and must, help remove people from death row, said Minsker.  “Any district attorney who has qualms about the death penalty or is clearly opposed to the death penalty, they also have a moral responsibility to act to correct the wrong of these ongoing death sentences,” said Minsker. “It is their responsibility to step up and fix this injustice.” 

But some prosecutors who claim the progressive mantle leave their death rows mostly intact, and say they have little authority to change them. 

Fellow California prosecutor and signatory Contra Costa DA Diana Becton has, like Boudin, not authorized a death penalty case since taking office in 2017. But she has no policy to review the cases of the 14 death row prisoners from Contra Costa County, according to Becton’s statement to The Appeal, noting that the attorney general’s office handles death penalty appeals. “The capital punishment system is inherently flawed and is disproportionately applied to people of color and those with serious mental health issues,” she said. 

St. Louis County Prosecuting Attorney Wesley Bell, another signatory, promised to never seek the death penalty and has urged other prosecutors to do the same. In a statement to The Appeal, Bell said that his office “lose[s] jurisdiction over our cases after they reach the appellate/post-conviction stage to the Missouri attorney general.” In 2019, his office started a new Conviction and Incident Review Unit to review past convictions for “integrity and constitutionality.” “It has not yet led us to question a past death penalty conviction made by this office before our administration,” he wrote.

There are currently 19 people on death row from Dallas County, where Creuzot is DA. The district attorney is “reviewing several death penalty cases that remain on appeal,” according to DA spokesperson Tasha Tsiaperas. During Creuzot’s tenure, three people have been removed from death row, with the DA’s support, she said. 

“There isn’t a pathway in Texas for a district attorney to simply remove someone from death row,” Tsiaperas wrote in an email to The Appeal. “The office supports an individual’s right to fully litigate his or her case and to show under the law that there’s a reason to overturn the sentence. And the DA will review any case brought before the office.” 

Since Creuzot’s inauguration, two people from Dallas County convicted by Creuzot’s predecessors have been executed: Robert Sparks, in September 2019, and Abel Ochoa, in February 2020. Flores may be the third. 

Last October, Creuzot’s office petitioned the court to set Flores’s execution date for 2021. The Dallas County district court ruled that due to the COVID-19 pandemic, the State’s motion would be on hold until April 1. On April 2, Creuzot’s office petitioned the court to set an execution date of July 22, 2021. 

In January, Flores’s appellate attorney, Gretchen Sween, filed a petition, which runs approximately 800 pages, seeking a new trial, based, in part, on Flores’s actual innocence. According to Flores’s latest appellate filings, his case was replete with errors. Trial prosecutors withheld potentially exculpatory evidence, including a statement from a State’s witness that cast doubt on Flores’s guilt. 

After Flores was sentenced to death, Childs, Flores’s co-defendant, signed a confession that he shot Black, and pled guilty. Childs received a 35-year sentence, and was released on parole after serving 15 years. 

When The Appeal spoke with Creuzot in March, he said he had not read the 800-page petition. “It’s too much of my time,” he said of Sween’s filing. “Somebody is going to have to condense it for me.”

Creuzot told The Appeal it was appropriate to go forward with Flores’s execution.

“Based on everything I know at this point in time,” said Creuzot. “That’s not to say I can’t change my mind.”

Update: This piece has been updated to clarify that Creuzot’s office could change its plan to pursue death in an upcoming case.