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§ § § § § § § § § IN THE 85th DISTRICT COURT OF BRAZOS COUNTY, TEXAS
DEFENDANT’S SUPPLEMENT TO MOTION TO DETERMINE EXECUTION COMPETENCY UNDER ARTICLE 46.05 Defendant Marcus Druery is scheduled to be executed by the State of Texas on August 1, 2012. Counsel filed a Motion to Determine Execution Competency under Article 46.05 on July 11, 2012. This Court has set that motion, among others, for hearing on July 24, 2012. Counsel for Mr. Druery supplement the Article 46.05 motion with the following additional factual support for the contention that he suffers from a severe, active psychotic condition that renders him unable to rationally understand the reason for his impending execution. I. Marcus Druery’s recent and prolific writings to the courts, to himself, and to individuals whom he does not know, are further evidence that he lacks a rational understanding of the reason for his impending execution. On January 19, 2012, the Brazos County District Clerk received a letter from Marcus Druery dated January 16, 2012. Exhibit 1 at 22249-52 (Brazos County District Clerk Records from JusticeWeb). Attached to the letter were two I-60
Inmate Requests to Official dated December 10, 2010, and December 28, 2010. In the first I-60, in the section called “SUBJECT: state briefly the problem on which you desire assistance”, Mr. Druery wrote: Why am I on this unit after: I was fed something that caused me to upheave blood and lay on floor sick for hours. An officer was trying to pull my kidney out of my body & was caught by Sgt. Horton while doing it. Also cut w/ razor when arm was in slot and was hit by lead bullets on a string. Was stabbed coming out of shower on a couple of occasions. Was tortured in a cell by officers and had a use of force team enter my cell without camera and was beaten.
During this I was denied medical attention and worse they were listening to it! Exhibit 1 at 22251.1 In the second I-60, Mr. Druery complained: The State/wires continually tell me to get “Gangster” because other people want my settlement or freedom. They don’t know how to unwire me and grant my freedom back. Please explain. Id. at 22252. On March 27, 2012, the District Clerk for the United States District Court for the Southern District of Texas received a letter from Marcus Druery. In that letter, dated March 16, 2012, Mr. Druery claimed that he was shot by Skyyler Brown and that, as a result of the incident, he now suffers from a thyroid condition:
The excerpts from Mr. Druery’s writings are reproduced in this supplement without correction to spelling or grammatical errors.
Please be advised that I was shot by Skyler Brown on the day in question. I took 9mm rounds to the right side of my neck. It caused years of thyroid problems. (Lou Gherigs disease & Parkinsons disease) …. Id taken all kinds of medications ect & had multiple hospital trips ect. I had to have surgery so they had to do X-ray on my neck & found circular hole shaped wounds in my neck. (2006 & 2007) My thyroids had a healed hole in one & lip node growths. Exhibit 2 at 22222 (Brazos County District Clerk Records).2 Mr. Druery appears to believe that there is evidence that not only was he the victim of a shooting on the night of the crime, but that others were as well, and that this fact is somehow legally relevant to his conviction. On a page dated March 10, 2012: In 2009 & 2010 people had settlements for being attacked by the deceased on the day in question. Plus one witness had a gun shot wound to the head & there was a picture of it healing. Yet she testified without revealing that. The deceased shot Joquisha Pitts on the day in question. She was in love & scorned and testified wrongly to keep me from being with other women. I also got shot with XXX years of complications by the deceased. I received an execution date and these things were known but not filed by my attorney. I would request a stay of execution, full reversal, new trial or complete freedom if possible. Thank you for your time! Id. at 22223.3
While Mr. Druery has been treated for a thyroid disorder, none of Mr. Druery’s medical records suggests that he has ever been diagnosed with, or treated for, Parkinson’s Disease or amyotrophic lateral sclerosis (Lou Gehrig’s Disease).
Mr. Druery sent an identical copy of this letter—also dated March 10, 2012—over three months later. The Brazos County District Clerk received the letter on July 3, 2012, after it had been forwarded from the Texas Court of Criminal Appeals. See Exhibit 2 at 22213.
On May 3, 2012, the Brazos County District Clerk received a letter from Mr. Druery. In that letter, dated April 1, 2012, Mr. Druery claims that his legal claims have been denied because of a system of “options” and “settlements” in which individuals are conspiring against him. See Exhibit 2 at 22216. He further
complains that his cell remains wired against his will: Dear Constituents Greetings! My legal briefs filed to the courts continually get denied by Rick Thaler (Director of TDC) for wrongful reasons. (They all contain valid claims) Please look into these reasons: 1. 2. 3. They continually try to hide the past options or option I had for freedom in the past To keep me from having a large settlement as was once offered by TDC! Because they keep trying to hide me being wired in a cell against my will. Then wanting me to continually fight to remove wires they’ve blatantly REFUSED to move no matter how many times or how hard I fought. TDC investigated my case in ’08 or ’09 and sued TX State Technical college and offered me freedom and 1.1 million dollars & a full scholarship just by Skyler Brown being on campus. Some options had short sentences such as a 9 month sentence, house upon my release & certain female to live with. There was a 1 yr sentence w/ an apartment complex to run and 2 luxury vehicles with a different lady. Each person had a different option. Even option to go by myself to a different unit then free and even TDC officers were allowed to make options and settlements. I was instructed to fight use of force teams to receive my freedom and told it could end the death penalty. I had 3 or 4 use of forces just based on that.
Mr. Druery sent an identical copy of this letter—also dated April 1, 2012— to the Texas Court of Criminal Appeals over one month later. The letter was 4
In a letter dated May 1, 2012, and received by the Brazos County District Clerk on May 9, 2012, Mr. Druery reiterated that he was the victim of an assault by Mr. Brown. He also claimed that someone else committed the homicide: Dear Brazos County Courts, May the courts please be advised that there are medical records (Dental & otherwise) that would prove severe injuries I gained from the deceased on this case and at trial it was not known. The jury was told I never received any injuries from the deceased. Plus I requested to go to the Dentist recently to prove said claims. I had multiple bejeweled gold teeth (6 to 8 of them) and they were knocked out or broken by Skyler Brown. I lost some of the jewels in them also. Some of the enamel was also chipped on the 2 remaining ones that I have left. I also have before and after pictures if they need to be provided. And my mother or sister may still have the gold teeth because I was incarcerated. I did not have them while in prison. Thank you for your time! Sincerely, Marcus Druery PS: There are many other issues that could bring a stay that may need to be addressed. Such as some one else shot the deceased. Exhibit 2 at 22203.5 On May 29, 2012, this Court received an undated note from Mr. Druery, entitled “MAY I HAVE A STAY BECAUSE……….”: received on June 13, 2012. Exhibit 2 at 22205-09. The Clerk of the Court noted that the letter was mailed June 11, 2012. Id. at 22205. Mr. Druery sent identical copies of this letter—also dated May 1, 2012—to the Brazos County District Clerk and Texas Court of Criminal Appeals one month later; the letters were received on June 8, 2012, and June 25, 2012, respectively. See Exhibit 2 at 22189, 22213.
The witnesses need to be questioned properly. Such as Kim Kardashian who may be able to get Johnny Cochrans records about my life. (He was my atty. once before) 2. Someone needs to locate Lisa Ray Kissic or Traci Ellis Rose to see if they can produce the letter Skyler Brown wrote about why he tried to kill me before. 3. Because I’m black and had an all white jury. 4. Because Skyler attacked many people in one day and it did not come up until later. 5. So the witnesses (some non-trial) that came forward can speak on why they had options for my freedom. And settlements. 6. Because someone else shot the deceased. 7. Skyler had puncture wounds w/ internal bleeding and shrapnel in his chest cavity, and torso. At trial it was unknown what put them there! They were later proved bullet wounds and that within itself is new trial evidence. 8. I had a 10 million dollar settlement. 9. The confession was’nt played to the jury. The DA’s requested that they not be allowed to hear it because it may throw out my case later. NOTE: The jury was told I confessed to the crime when the confession did not match the statement of facts and was not a confession of guilt. 10. Because they keep trying to settle people out that got attacked by the deceased or had options before INSTEAD of using their evidence and testimony as NEW EVIDENCE! 11. Because Jenifer Turner got shot by the deceased. 12. Because Devorick Robinson got shot by the deceased. 13. Because Keith Taylor got shot by the deceased. 14. Because I got shot by the deceased. And others! 15. I did not rob the deceased. 16. Skyler got shot in the foot and it fractured. Someone was warning him to stay back and cease attacks! That’s new trial evidence… (Coroner simply stated that his foot was fractured [[hairline]] and a report of a piece of lead in his shoe) 17. I’m one of the last surviving males of God’s lineage 18. I slept w/ DA Jarvis Parsons wife and he once used my money to go gamble in Las Vegas and couldn’t pay it back. 19. 2 officers who were at the TX Avenue store that night came to speak up on my behalf during a pre-trial hearing. The Judge did NOT ALLOW THEM TO because he said he was not prepared for their testimony. (Their testimony would’ve freed me) 6
I had a bad childhood. I was tortured before and even kidnapped for a couple weeks. The Supreme Court recently ruled on lying witnesses needing protection. (Justice Samuel Alito may not have known the witnesses lied on my case) That should be reversible error because the defendant suffers tremendously from that. Plus the witnesses all said in every statement (including their 1st recorded one) that they were high on drugs. They gave 8 or 9 hours long statements before trial.
Exhibit 2 at 22197. In addition, on May 29, 2012, this Court received a trio of a letters from Mr. Druery, dated May 12, 2012; May 10, 2012; and July 13, 2011. In the letter dated May 12, 2012, Mr. Druery asked for a stay of execution: Dear Courts Here and now comes, Marcus Druery, requesting a stay of execution due to the fact that I was offered a 8 hour federal sentence due to the fact that my life was on the line on my case. I should not have received an execution date. Can you please look into this matter quickly? Prayerfully submitted, Marcus Druery Exhibit 2 at 22198; see id. at 22199 (requesting a stay because counsel “may not be fighting for my freedom or life right now because [counsel] got scared of the enclosed page. Mainly number 3! None of these things were known during my trial….Is this the reason I received a execution date? If so, may I have a stay so they can be remedied?”) (ellipses added). In his letter dated July 13, 2011, Mr. Druery wrote the following:
LET IT BE NOTED: 1. Skyler Brown wrote a letter to a Federal Judge in the early 90’s after he got caught trying to assassinate me and Rihanna. Rihanna (singer) and Lisa Ray (model/actress) and me were trapped in a house together under protection. He was ordered to do time by the Judge and asked to write the reasons he wanted me dead and all his reasons were concluded jealousy. Why have’nt they questioned Rihanna and Lisa Ray? They may still have a copy of the letter. Traci Ellis Rose may also have a copy of it. (This gave me complete freedom in ’09 but Joquisha Pitts threatened Lisa to hide it) I started a protection Agency as a pre-teen and later turned it over to Marion Knight and we did protection world wide. I’ve had and done protection for whole families and celebs such as Beyonce, Tupac Shakur, Vida Guerrera Tom Cruise, Traci Ellis Ross, Will Smith & Family. Ect! Several inmates who were already on death row tried to force me here claiming to need protection in prison and help and knew I once worked with a Protection Agency and had protection myself. Garcia White threatened Jarvis Parsons to send me here no matter what kind of case I had. Even though I had no capital case. I received one 7 months later. Ray & Donna Druery proclaimed I would not live if I refused their legal visit which is simply a recorded visit. During my visit when I tell them something about my case that they already know, they try to hide it or speak against it. (As if it’s XXX untrue or they simply DID NOT want me to bring it up) Such as happened the last 30 minutes of my visit 6/24/11. I asked about things that happened at the corner store after the club on the night in question and they played like they knew nothing about it. Then on 6/29/11 they spoke on it in great detail in my cell over the speaker system. My parents claimed they have made to many threats to me and did’nt want me to have my settlements through the courts or my county. Since they are the ones that made the threats neither do they need a settlement.
Exhibit 2 at 22200.
Attached to the trio of letters received May 29, 2012, was a Step 1 Offender Grievance Form that contained, among other things, complaints that Mr. Druery had unredeemed “options”: As you know, every word of my visit is heard and I had several things to speak on such as my last options, what they were and did I have any new ones & why couldn’t I go to my last options. It was a 120 hr sentence in the county jail the last time my minister came. In the near past they simply had my call out several options during visit room keys. I had options to leave to be a minister that were denied for various reasons such as people not winning a settlement and me refusing to pray long drawn out prayers where everyone can hear them to prove I was a real Christian. But I was going through so many slots slammed ect ect. That I couldn’t be a minister in here due to that & more. I was robbed of my ministry & freedom visit & settlements during said time. Also encouragement is important during this situation & in the very least I could’ve rec’d that from my minister. This whole situation has went on for far to long & it only creates problems and danger and it needs to come to an abrupt end. Id. at 22201. In July 2012, Donna Druery, Marcus Druery’s mother, received a package of several letters from her son addressed to various individuals. Among those were two greeting cards Mr. Druery had addressed to himself. Neither is dated. The first one contains no writing. Exhibit 3 at 1-3. The second one contains the following inscription: Dear Marcus Be ever prayerful and steadfast in the Lord. During this time it is imperative to know the Lord is with you. It is for a stay I pray and your freedom without death in it. You heard the Lord! Jeremiah 29:11 says His plans were not to harm…..
Man keeps wanting to see you down. Most wanted to see your settlement not be yours ect ect! Your dad keeps chasing everything yours. Let your God guide you & know that He is God. Be Blessed! Sincerely, Marcus Exhibit 4 at 2 (ellipses in original). In that same package of letters, Donna Druery received a letter addressed to Margie Viguet, a Bryan real estate agent whom the family has never met, dated July 9, 2012: Dear Ms. Viguet Greetings and wonderful day to you! I have this huge problem. I had a settlement of a large amount and I am having trouble receiving it. I would like to purchase this home you advertised in the newspaper. #77094! As of right now I am expecting a date of execution because I came to prison but was not guilty of the crime I was accused of. Can you please ask for me a stay of execution and for me to receive my settlement that was once offered to me through the state. You may want to contact the Governor or Brazos county if you are interested. My 1st settlement was 1.1 million from prison. Thank you for your time! Sincerely, Marcus Druery Exhibit 5 at 2. Enclosed was a clipped newspaper advertisement for a home listed at $549,900. Id. at 3.
Marcus Druery’s statements to the Court on June 29, 2012, are further evidence that he lacks a rational understanding of the reason for his impending execution. On June 29, 2012, the Court entered into a colloquy with Mr. Druery
regarding the retention of current counsel as his legal representatives.6
asked if he had anything he wanted to say on the matter, Mr. Druery stated that he believed he and others were the victims of attacks on the night of the crime: Your Honor, I think that I – I think my – my main complaint was some of the stuff I think didn’t come up on my behalf that should have came up on my – at my appeals and on my case; and I think that, you know, there was a medical record proof and other things that could have came forward on my behalf. I think that Schulman filed on some of it in the – I think in state habeas – in the CCA and state habeas and supplemental brief but some of it didn’t come forward and I think should have been able to come forward. And there were picture proof – medical record proof of several attacks upon myself and others that also came forward. And I think – I’m of the understanding that it cannot really be addressed or looked into without it being brought up or filed on my behalf. And so if it’s not filed, how do I – how is it possible for it to be addressed, you know, it if it was not brought up in trial, you know, properly? I don’t think that – now, I wasn’t given a say at trial so – I wasn’t allowed to take the stand and my own attorney’s behest at trial and there were other witnesses that, you know, came forward later that have not had a say either properly. And I think that, you know, I didn’t know what to say or do about that. And that was actual, you know, picture proof and medical record proof of those things. Exhibit 6 at 3-4. After again being asked by the Court if he had any concerns relevant to the retention of counsel, Mr. Druery stated that he was unclear why undersigned
The transcript of the June 29, 2012, hearing, entitled “Defendant’s Statements,” is attached as Exhibit 6.
counsel refused to file claims relating to “a recorded confession from someone else exclaiming that they shot the deceased” even though “another attorney from Houston – not these same attorneys – did bring that up and filed it.” Id. at 5. In an attempt to explain to Mr. Druery what stage of the proceedings he was in, and the issue at hand, the Court said: “We are at the point of executing you for the crime for which you’ve been convicted.” Id. In response Mr. Druery said,
“Correct. But, see, that’s the problem. I -- I’m not really guilty of the crime that I was charged with.” Id. After the proceedings continued for a time, Mr. Druery interjected: Excuse me, Your Honor. If I may add – if I may say, I had – I had evidence of medical records of me being gunshot by the deceased with years [sic] worth of complications, you know, that – I wanted to know could that be brought forth on my behalf? I know the jury wasn’t allowed to hear any – anything like that but…” Id. at 6-7. After the Court again explained that the relevant issue at this stage was Mr. Druery’s competency for execution, Mr. Druery said the following: Okay. I have – I had a question. There was some old letters where I asked to take a lie detector test on my behalf and I wasn’t allowed and I was asking is there any way that I could also – you know, that I could take a lie detector test on my behalf based on this same case. I understand that – I understand what I was charged with, what I’m accused of. I also am a witness to seeing someone else shoot the deceased. I’m a witness myself. Id. at 7.
The Court responded: “Well, we’re not going to retry the case, Mr. Druery,” to which Mr. Druery answered, “The point is, sir, I’m not guilty of the charges. You know, that’s my main complaint.” Id. PRAYER FOR RELIEF Based on the information contained in the Motion to Determine Execution Competency under Article 46.05, and with consideration of the additional factual allegations contained herein, counsel for Mr. Druery request the following: 1. 2. Find that a substantial showing of incompetency has been made; Withdraw the execution date and refrain from setting a new one unless and until the Court finds, after holding an evidentiary hearing on the merits, that Mr. Druery is not incompetent; After reviewing recommendations from both parties, appoint at least two independent experts to review the pertinent records, interview collateral witnesses, evaluate Mr. Druery, and submit written reports; Order the State to videotape the evaluations conducted by the courtappointed experts; Allow counsel for both parties to attend the evaluations conducted by the court-appointed experts; Order the court-appointed experts to abide by the professional guidelines for execution competency evaluations set out in a previously-filed motion; Order the court-appointed experts to apply the definition of “rational understanding” set out in a previously-filed motion; Grant Mr. Druery adequate funding to retain an investigator who can identify and interview the most important collateral witnesses; Grant Mr. Druery copies at county expense of the TDCJ records provided to the Court by the District Attorney; 13
4. 5. 6.
7. 8. 9.
Order the District Clerk to seal from public view the exhibits attached to the original Article 46.05 motion and this supplement; Hold a “final competency hearing,” as required by Article 46.05(k), on a date to be announced by the Court after the parties have had a meaningful opportunity to develop their evidence and prepare for the hearing; Find that Mr. Druery is presently incompetent to be executed under the Eighth and Fourteenth Amendments; and Grant such other relief as law and justice require. Respectfully submitted,
______________________________ Katherine C. Black Texas Bar No. 24064907 TEXAS DEFENDER SERVICE 1927 Blodgett Street Houston, Texas 77004 (713) 222-7788 (713) 222-0260 (f) firstname.lastname@example.org Gregory W. Wiercioch Texas Bar No. 00791925 TEXAS DEFENDER SERVICE 430 Jersey Street San Francisco, California 94114 (832) 741-6203 (713) 222-0260 (f) email@example.com
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was delivered by hand to Douglas Howell, Brazos District Attorney, 300 East 26th Street, Bryan, Texas 77803, on this 23rd day of July, 2012.
______________________________ Katherine C. Black
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