Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

Texas’s First Death Sentence of 2018 Crystallizes the State’s Longstanding Capital Case Crisis

A marker for the founding of rural Hardin County
Nicolas Henderson / Flickr [CC BY 2.0]

Texas’s First Death Sentence of 2018 Crystallizes the State’s Longstanding Capital Case Crisis

A Texas man tried and convicted in late February of murdering his girlfriend’s daughter is the state’s first death sentence in 2018 — but it also may be its latest example of prosecutorial misconduct in a capital case.

On February 28, a jury in Hardin County, a small East Texas county near the Louisiana border, handed down a death sentence to 40-year-old Jason Wade Delacerda. According to Delacerda’s defense attorneys, it was the conclusion of a trial in which prosecutors attempted to hide exculpatory evidence, violated a rule barring witnesses from talking with other witnesses about the case, and played an emotional song from the hit 2012 movie Pitch Perfect in a bid to allude to evidence the judge had already ruled inadmissible.

Such allegations of misconduct in Texas are not limited to Delacerda’s case — in 2017, nearly half of the stays of execution granted in the state involved cases that “may have been tainted by false or unreliable evidence,” according to the website The Open File, which tracks prosecutorial misconduct.

“I’d say that this is a pervasive problem,” Amanda Marzullo, executive director of Texas Defender Service, a nonprofit working to improve the quality of representation afforded to those facing death sentences, told The Appeal“This is in part because, in general, emotions run high in death penalty cases on both sides and prosecutors are particularly aggressive.”

Attorneys representing Delacerda — who faced a capital murder charge for the 2011 murder of his girlfriend’s four-year-old daughter, Breonna Loftin — claim that his trial was marred by multiple acts of prosecutorial misconduct.

One of Delacerda’s attorneys, Ryan Gertz, said that Hardin County District Attorney David Sheffield brought Delacerda’s two sons — who were set to testify against their father — into a room with their mother and her husband, who were potential witnesses, to confer with them about their testimony. Gertz said that this meeting represented a violation of Rule 614, which states that witnesses must not share their testimony with other witnesses.

Judge Steven Thomas did not formally acknowledge the Rule 614 violation, but prevented Delacerda’s sons from testifying in the guilt phase of the trial on the grounds that it included inadmissible character evidence. Thomas, however, allowed one of Delacerda’s sons, the son’s mother, and her husband to testify during the trial’s penalty phase, which led to another alleged act of misconduct. Gertz claimed that prosecutors failed to provide notice to the defense that the testimony of the stepfather of Delacerda’s sons would include alleged crimes that Delacerda had not been convicted of, allowing him to tell the jury about being punched in the face by the defendant in a parking lot.

Additionally, Gertz alleged that the state committed three Brady violations, meaning that it failed to disclose evidence that is favorable to the defense as required by law. In one instance, prosecutors allegedly failed to disclose that one of the investigators in the case was arrested for child pornography and lying to a postal inspector about having it shipped to him by mail.

And during his closing statement, Assistant District Attorney Bruce Hoffer made what Gertz said was an improper attempt to appeal to the jury’s sympathies by displaying a picture of Breonna while playing the song “Cups” from Pitch Perfect featuring the refrain “You’re gonna miss me when I’m gone.”Hoffer later told the media that the song choice was inspired by a statement Breonna allegedly made to her grandmother, “Will you miss me when I die?” weeks before her death that the judge had ruled inadmissible because it was considered hearsay.

“It was ridiculous,” Gertz said. “I’ve never had anybody so blantantly appeal to a jury’s emotions as that, the only thing that would’ve been worse than that song would’ve been ‘Wind Beneath My Wings.’”

The Hardin County district attorney’s office did not return a request for comment from The Appeal.

Claims of prosecutorial misconduct — including Brady violationsjunk scienceand unreliable witnesses — in capital cases like Delacerda’s are commonplace in Texas.

In 2017, the execution of Paul David Storey — who was convicted in the 2006 murder of Jonas Cherry during a robbery of a mini golf course — was stayedafter his attorneys discovered that prosecutors lied to the jury about the victim’s family’s wishes to pursue the death penalty.

During Storey’s 2008 trial, prosecutors insisted that Cherry’s parents sought to have Storey executed, despite the fact that they had told the state that they didn’t believe in the death penalty. “As a result of Jonas’ death, we do not want to see another family having to suffer through losing a child and family member,” Glenn and Judith Cherry later wrote in a 2017 letter to the Texas Board of Pardons and Paroles, “due to our ethical and spiritual values we are opposed to the death penalty.”

Also in 2017, the execution of Kosoul Chanthakoummane, a man convicted and sentenced to death for the 2007 murder and robbery of a real estate agent in Collin County, Texas, was stayed after defense attorneys argued that the state had relied upon discredited forensic evidence, including bite marks. As of January of 2017, bite mark evidence has resulted in more than two dozen wrongful arrests and convictions.

Such cases demonstrate that even though executions are on the decline in Texas, the state remains a locus for misconduct in death penalty prosecutions.

Compounding the misconduct crisis is the fact that systemic issues in death penalty cases are less likely to be remedied in small counties like the one where Delacarda was tried. Redirecting limited public resources toward costly capital cases means that pressure on prosecutors to secure a death sentence is high, encouraging a do-whatever-it-takes-to-win approach.

“For the rural counties they’re going to decide, can we fix our broken drainage systems,” Jim Marcus, a University of Texas law professor specializing in capital punishment told The Appeal, “or put this guy on death row?”

But difficult, longstanding problems like capital case funding do not justify misconduct, Marcus added, noting that although it is often forgotten, prosecutors are supposed to be carrying out an important duty:

“The prosecutor’s ethical obligation is not to win at all costs, their role is to do justice.”

In Louisiana, Defendants Facing the Death Penalty Face a Wait List for An Attorney

Louisiana’s House of Representatives. Last year, a bill to eliminate the death penalty in the state failed by just one vote to make it out of committee.
Jeffrey Schwartz / Flickr [CC BY 2.0]

In Louisiana, Defendants Facing the Death Penalty Face a Wait List for An Attorney

In 2016, Louisiana Democratic Governor John Bel Edwards made good on a campaign promise to fix his state’s wildly underfunded public defender system by pushing the state legislature to increase funding to public defender offices working on regular felony and misdemeanor cases.

But there was a catch: the majority of the increased funding didn’t come from new taxes or other sources of additional revenue — instead, $3 million was simply cut from the $8.5 million budget for death penalty defense.

As a result, indigent defendants charged in death penalty cases in Louisiana, in either the pre-trial or post-conviction phase, are facing capital defense lawyers resisting new appointments as well as a waiting list for an attorney.

This is the first time that indigent capital murder defendants in Louisiana have faced a wait list since 2007, when the state’s capital defense standards were overhauled by the Louisiana Public Defender Board (LPDB).

“Before the [2016] budget cuts, we had just begun to meet standards for trial and appeal, but not post-conviction,” said Ben Cohen, a capital defense lawyer who is of counsel with the Promise of Justice Initiative, a New Orleans-based criminal justice reform non-profit, referring to the creation of the LPDB in 2007 and the capital standards it adopted.

The LPDB oversees the state’s public defender offices, including law offices specializing in indigent death penalty defense, such as the Capital Post Conviction Project of Louisiana.

But after the 2016 cuts to capital defense, the wait list returned, a shocking reversal for a state that was just beginning to meet constitutional minimums for indigent capital defendants. Historically, Louisiana has consistently struggled to adhere to the Sixth Amendment’s right to counsel requirementespecially in death penalty cases.

Traditionally, Louisiana has spent a fifth of its indigent defense funding on capital appeal cases, a drain on its already modest public defense system. Louisiana funds its indigent defense through a combination of state funding and local revenue, which is mostly provided by traffic tickets and differs from district to district. In 2017, for example, just 38% of funding came from the state, while 62% came from local revenue sources.

State lawmakers are cognizant of capital punishment’s enormous costs and in March of 2017 a death penalty abolition bill was introduced in the state house but then failed to pass the criminal justice committee by a single vote. In late April that year, a similar bill in the senate successfully advanced out of committee but then died after it lost critical political support.

One of the death penalty abolition bill’s fiercest opponents was Hugo Holland, a former assistant district attorney with the Caddo Parish district attorney’s office, which became notorious in 2015 when then-DA Dale Cox said that the state should “kill more people.”

Like his onetime boss Cox, Holland is a death penalty evangelist. “If a stray kitten was hit in the street, I’d pick it up and take it to the vet, pay the bill and then try to adopt it out,” Holland, who owns a cat named after Lee Harvey Oswald, told the Advocate in 2017. “But it would not faze me in the least to watch a man executed, and that would include hanging or firing squad.” After being forced to resign from the Caddo DA’s office in 2012 for falsifying paperwork to obtain eight M-16 rifles from a military surplus program for supposedly dangerous “front line” prosecutions, Holland began contracting with DA’s offices in Louisiana to handle high profile capital cases, including a cold murder case that was the oldest prosecution of a suspected serial killer in United States history. Holland serves as a prosecutor on such significant cases despite the fact that he’s faced numerous accusations of misconduct, such as withholding exculpatory evidence.

But Holland is not just a prosecutor; he has been hired by the Louisiana District Attorneys Association (LDAA) to lobby against criminal justice reformas well as state funding for indigent defense.

Holland’s role as Louisiana’s prime public defense antagonist was on display during a February 1 hearing in Alexandria, Louisiana regarding legal representation for Matthew Sonnier, who was indicted for first-degree murder in November of 2017. In Louisiana, first-degree murder is punishable by life without parole — or death — and Holland is prosecuting Sonnier on behalf of the Rapides Parish district attorney’s office.

At the hearing, Sonnier’s appointed attorney Richard Bourke filed a motion to withdraw from the case, based on his already overwhelming workload. According to the American Bar Assocation guidelines for death penalty representation, “in making assignments of counsel to a particular capital case, the Responsible Agency should give careful consideration to counsel’s qualifications, skills, and experience…and the relative onerousness of prospective lawyers’ existing caseloads.”

Bourke explained that his office, the New Orleans-based Louisiana Capital Assistance Center, had already reached the maximum contractual hours it could bill the state to possibly hire more attorneys, and that given his own workload, he could not effectively represent another capital defendant.

“Your honor, my workload at the minute makes it impossible for to ethically accept the appointment of another capital case,” Bourke told the court. “The workload associated with these cases is simply too great for me to assume responsibility in another case, without then having to fail to perform adequately in the cases I’m already on, and for Matthew Sonnier.”

Holland simply declared that attorneys representing indigent capital clients waste state resources, and questioned the LPDB’s James T. Dixon about its funding of offices like Bourke’s, claiming “I can show you the funds are being misspent … What I’m gonna do is ask those people … sitting over here to do their jobs.” But during the hearing, Holland didn’t present any actual evidence of misspending by any law office specializing in indigent capital defense.

Nonetheless, since the reemergence of the wait list for indigent defendants facing the death penalty, Dixon has been subpoenaed by Holland and other prosecutors over a dozen times to testify on the lack of sufficient funds for defense in capital cases, as attorneys attempt to resist their appointments. In an interview with The Appeal, Dixon of the LPDB dismissed Holland’s claims of misspending. “We have a waiting list because of a lack of funding, not anything else,” Dixon said.

Holland declined to be interviewed for this article, writing in an e-mail that after a “quick perusal” he concluded that The Appeal has a “particularly anti-prosecutor and anti-capital punishment leaning.” He then said that the “meat” of his claims would be revealed in a future hearing.

In keeping with Holland’s theory that defense attorneys misspend public funds, he lobbied for the 2016 budget cuts that eviscerated the budget for death penalty defense. “Hugo Holland lobbied to move that funding from capital defense organizations to non-capital services,” said Cohen, the capital defense lawyer. “But they just robbed Peter to pay Paul.”

Cohen says that Holland is singularly influential in moving the conversation around the death penalty and capital defense spending.

“The only person who would be that kind of counterweight would be the pope,” Cohen remarked, “Holland attacks anyone who gets in his way and everyone else is much more measured and restrained.”

Because of the crisis in capital defense spending, according to Cohen, it would be 20 years, at the earliest, before a defendant could be put to death if he or she were arrested anytime after August 2018 and had exhausted all of their appeals. Until that time, he estimates, the state will spend a quarter of a billion dollars to execute a single defendant.

It’s particularly wasteful spending because over the past 30 years, more than half of death sentences in Louisiana have been reversed by higher courts, by far the highest rate in the nation among states that still have the death penalty, spotlighting the need for funding of post-conviction appeals. And the years of overworked and ineffective counsel in Louisiana have left many on death row without any chance to remedy the mistakes of their lawyers.

On March 5, the Supreme Court refused to hear the case of Todd Wessinger, who was sentenced to death in 1997 for killing two restaurant employees by a Baton Rouge jury that hadn’t been presented with serious mitigating evidence including Wessinger’s brain damage. Wessinger’s first post-conviction attorney suffered “a mental breakdown” wrote Justice Sonia Sotomayor in her dissent, and did no work on his appeal, while his next appellate attorney exerted almost no effort on the case. “The layers of ineffective assistance of counsel that Wessinger received,” Justice Sotomayor wrote, “constitute precisely the type of error that warrants relief under this Court’s precedent.”

While Wessinger’s Cert Petition was denied by SCOTUS, Matthew Sonnier found some temporary relief in a Louisiana courtroom. At the end of the February hearing in Alexandria, the judge released Bourke from Sonnier’s case and halted the prosecution for four months to determine if new funding could be identified. There will be a new hearing in June regarding whether the state will have enough money to pay for his defense; until then, he’ll stay on a wait list for an attorney, which has ballooned to a dozen defendants as of February 21.

It’s unclear if the future will bring further funding for capital defense in Louisiana because the state legislature is currently in the midst of a special session focused on closing a massive budget gap. In previous years, that gap had been filled with cuts to healthcare and education that have cut both of those services in the state to the bone. Perhaps this time, to help plug that hole, state representatives might return to the house bill that died by a single vote in committee last year and abolish the death penalty.

More in Explainers

Columbus Activists Turn Out to Support ‘Black Pride 4’ Protesters During Sentencing

Local supporters rally for the Black Pride 4 on the eve of their sentencing, part of a national day of action.
Credit: Prince Shakur

Columbus Activists Turn Out to Support ‘Black Pride 4’ Protesters During Sentencing

On March 13, roughly two dozen community activists and supporters gathered outside a courtroom in Franklin County Municipal Court to support four young activists accused of disrupting last June’s pride parade in Columbus, Ohio.

The Black Pride 4 — Wriply Bennet, Ashton Braxton, Deandre Miles-Hercules, and Kendall Denton — and six other activists blocked the path of the parade for seven minutes last June “to protest the acquittal of Jeronimo Yanez, the Minnesota police officer who killed Philando Castile in 2016, as well as to shed light on the lack of safe spaces for black and brown people in the LGBTQIA+ community,” according to their press release.

Three out of four of those arrested were sentenced Wednesday to two years of probation and dozens of hours of community service; two of them were fined. They were told by Judge Cynthia Ebner that if they completed half of their community service hours, they could request to have their probation and remaining community service requirement lifted.

Constance Gadell-Newton, the attorney who represents Bennet, said that’s not the result she hoped for. “Although there was no jail time imposed immediately, probation is very burdensome,” she told The Appeal after the sentencing. “There is always the potential of future jail time that could come out of that, so I was very disappointed.”

The day before the sentencing, a crowd of over 100 people gathered for the “Columbus Is Guilty” rally and march at Columbus City Hall. The action, which was organized by Black Queer and Intersectional Columbus, was meant “to show solidarity with the #BlackPride4 and continue to shame CPD [the Columbus police department] and Stonewall [the group that organizes the annual pride parade] for their blatant disregard for Black lives.”

Protesters hold signs during Columbus Is Guilty Rally in Columbus, OH.
Credit: Prince Shakur
Dkeama Alexis, co-founder of Black Queer and Intersectional Columbus, speaks to crowd during Columbus Is Guilty rally.
Credit: Prince Shakur

“We’re dealing with an increasingly hostile [Trump] administration. We’re seeing what that looks like for us here on the ground,” said Aaryn Lang, movement building and campaign manager for national LGBT organization GetEQUAL, who helped organize the national day of solidarity. “They’re trying to make an example out of [the] Black Pride 4 and I hope you all are paying attention.”

After being arrested at the June parade, the protesters — all of whom are people of color and two of whom identify as transgender — faced a range of charges including disorderly conduct and resisting arrest, and were held for several hours before being booked by Franklin County. Bennet said she was misgendered by Columbus police officers, placed in a men’s facility, and kept in solitary confinement during her day in jail. Miles-Hercules’s bail was initially set at $100,000 as they, who has not yet been indicted, could face more serious charges, including aggravated robbery, for allegedly attempting to take an officer’s weapon.

After bail was posted for all four protesters with the help of online fundraisers, the eight-month journey to trial began. On February 12, three of the four arrestees — Bennet, Braxton, and Denton — were found guilty of six out of eight charges by a mostly white jury after a five-day trial.

Meanwhile, community organizers have led efforts to support the the protesters, hosting marches and petitions drops and disrupting a community conversation set up by Stonewall Columbus about the arrests to call out the organization for not fulfilling its promise to support the Black Pride 4.

Lori Gum, former program director for Stonewall Columbus, resigned just days after the protest, citing the organization’s lack of effort to help the arrested protesters. Gum joined Stonewall Columbus in 2011 and created the “InsideOUT” program to help incarcerated people start their own LGBTQ support groups. She told The Appeal that the connection between mass incarceration and the LGBTQ was something that Stonewall Columbus “didn’t even know about.”

Stonewall Columbus did not respond to requests for comment for this story.

“I watched to see how the community and Stonewall handled this, and it was handled horribly,” Gum noted, “So it makes me afraid truly of where this city is going with … racial relations, but particularly people of color and [their] relations with CPD.”

Mike Brickner, senior policy director of ACLU of Ohio, said this isn’t the first time people of color in Ohio were treated unfairly by police officers for expressing dissent. In 2015, his organization filed a lawsuit against the city of Cleveland over protests stemming from a different police brutality case.

“Oftentimes, they [people of color] encounter more obstacles when trying to protest in public spaces, when organizing. We have to have a recognition from the very beginning that racial justice and free speech have a clear intersection here.”

The trial against the Black Pride 4 comes amid criticisms of the Columbus Division of Police for using excessive force, particularly against people of color. Between January 2013 and December 2017, the Columbus police killed 28 people, 21 of whom were Black, and over two dozen lawsuits are currently filed against the department, many claiming civil rights violations.

Recent high-profile deaths of Black residents at the hands of the police include Tyre King and Henry Green. King, a 13-year-old, was killed by a Columbus police officer while he reportedly had a BB gun and was running away. Green, 23, was shot seven times by two plainclothes Columbus police officers and then handcuffed.

Officer Zachary Rosen, who was involved in Green’s death, reportedly had a history of aggressive behavior and was fired in 2017 after video surfaced of him stomping on the head of a handcuffed man. Earlier this month, Rosen was reinstated to the police department, a decision that prompted community members to post flyers warning of Rosen’s “suspicious behavior” as an officer. Additionally, video of Columbus police officers tasering a pregnant woman in a jail cell prompted a rebuke by the United Nations special rapporteur on torture, who called such incidents “grave abuse.”

The office of Police Chief Kim Jacobs did not respond to requests for comment on the Black Pride 4 by press time. But previous interviews with Jacobs shed light on her leadership style. Jacobs spoke about working for the department’s complaint line, for instance, saying it taught her that most people who called in to file complaints “think [an officer’s actions] might be wrong, and they need clarification.” When asked about community distrust of the police, Chief Jacobs recommended that residents should simply comply with officer commands.

“When you fight us, first of all, you’re committing a crime, and if it turns into an assault, you’re committing a felony,” she told Columbus Alive in 2016, “It’s much easier to just go along with the program and then use the justice system to resolve issues that you have.”

But Dkeama Alexis, co-founder of BQIC, says “going along” with the police hasn’t worked for them and other activists. “Organizing for the #BlackPride4 showed me that you can grind nonstop for months trying to get justice,” Alexis said, “but that the criminal injustice system is so much of a ruthless machine, that you can still lose.”

Prior to the parade, Stonewall Columbus was on “high alert” following the Pulse nightclub shooting in Orlando, Florida and an anti-gay post on Facebook by a Columbus City School District employee who said he wished the 2017 parade would turn out like the “Boston Marathon.” As a result, roughly $25,000 was spent on special duty officers, private security, and undercover officers for the pride event. Deputy Chief Michael Woods noted just two days before the June 17 pride parade that the extra officers would be on the lookout for “strange behavior.”

After the arrests of the Black Pride 4, community members called on Columbus City Attorney Zach Klein to drop the charges against the four activists, since prosecutors have full discretion to pursue or drop such charges.

But Deputy Chief Prosecutor Joseph Gibson told The Appeal his office had public safety in mind, particularly after the Pulse nightclub shooting. “This wasn’t an ideological prosecution,” he said. “It was a prosecution where laws were broken and police filed the charges and we prosecuted them without regard to the message.”

In the wake of Tuesday’s sentencing, one of the Black Pride 4, Kendall Denton, was clear about the need for continued community support.“We got one more [who hasn’t faced trial],” Denton said. “We have to make sure that the support that came out for us, comes out for Deandre as well.”

Editor’s note: This story has been updated with Aaryn Lang’s job title.

More in Podcasts