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