_________________________________________________________ BEFORE THE GOVERNOR FOR THE STATE OF TEXAS AND THE TEXAS BOARD OF PARDONS AND PAROLES

_________________________________________________________ In re ANTHONY CARDELL HAYNES Applicant. _________________________________________________________ APPLICATION FOR REPRIEVE FROM EXECUTION OF DEATH SENTENCE AND COMMUTATION OF SENTENCE TO IMPRISONMENT FOR LIFE

Submitted by:

A. Richard Ellis Texas Bar No. 06560400 75 Magee Avenue Mill Valley, CA 94941 (415) 389-6771 FAX: (415) 389-0251

Counsel for Anthony Cardell Haynes

APPLICATION FOR CLEMENCY AND MEMORANDUM IN SUPPORT THEREOF TO THE TEXAS BOARD OF PARDONS AND PAROLES: ANTHONY CARDELL HAYNES, through counsel,1 respectfully submits this application for clemency and petitions the Texas Board of Pardons and Paroles to recommend to the Honorable Rick Perry, Governor of the State of Texas, (a) that he commute Mr. Haynes’ sentence of death to life imprisonment. In the alternative, Mr. Haynes asks the Board to recommend to the Governor (b) that he grant a reprieve of his execution, now scheduled for October 18, 2012, for a period of 90 days so that the Board may fully investigate and consider the facts of Mr. Haynes’ case and wrongful sentence of death and the merits of this Application.2 Unlike a pardon, commutation does not cancel the defendant's guilt, nor does it imply forgiveness. Thus, if the Board and the Governor choose to commute Mr. Haynes’ sentence, he will still stand convicted of the most serious offense known to Texas law. Commutation may be granted for a variety of reasons, including a

Pursuant to TEX. ADMIN. CODE § 143.42(2), undersigned counsel A. Richard Ellis is the applicant’s agent presenting this application. See enclosed notarized Fee Affidavit Form and Registration Form for Representation of Offender.

TEX. ADMIN. CODE § 143.58 provides that “[t]he board shall investigate and consider a recommendation of commutation of sentence in any case, upon the written request of the governor (Texas Code of Criminal Procedure, Article 42.18, '18).”


determination that the original sentence was excessive, for reasons relating to the rehabilitation of the prisoner, or “for any reason that the commuting authority deems adequate, or as an act of mercy.” National Governor’s Association, A Guide to Executive Clemency Among the American States, 5 (1988). The executive clemency power in capital cases derives from the recognition by the framers of the Texas Constitution that in imposing the ultimate punishment -- the taking of a human life -- no legal process, however complex, lengthy, or ingenious, is sufficient in all cases to ensure that a just and reliable result is reached. As the U.S. Supreme Court explained in the case of Ex Parte Grossman, 267 U.S. 87, 120-121 (1925): Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts the power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. This is such a special case. For the rule of law to be respected, the relationship between blameworthiness and punishment must be preserved. Clemency assures that punishment is administered only to those whose moral culpability at the hour of death still justifies the imposition of society’s most severe penalty -- a necessary predicate to the legitimacy of executions. Clemency also guarantees that some responsible -3-

decision-maker -- someone accountable for the final decision to extinguish the life of the condemned -- will seriously weigh his fundamental humanity before doing so. Both of these historic mandates require that the Board and the Governor take a few moments to contemplate the life the State is about to take, the life of Anthony Cardell Haynes. TEX. ADMIN. CODE tit. 37, §143.43(g) (1996), authorizes this body to find “good and adequate cause to suspend [§ 143.43]’s provisions and adopt a different procedure which it finds to be better suited to the exigencies of the individual case before it.” The circumstances of Mr. Haynes’ case, for the reasons explained herein, counsel that the Board grant a reprieve in order to give adequate consideration to the case before placing its imprimatur on his execution. Attached to this document are a number of exhibits. The items required by TEX. ADMIN. CODE tit. 37, §143.42(3) (1996), certified copies of the indictment, judgment, verdict of the jury, and sentence in the case, and official documentation verifying the scheduled execution date, are included herein as Appendix 1. Statements from relatives, friends and supporters of Mr. Haynes are included herein as Appendix 2 (people who were not called to testify at Anthony’s trial) and Appendix 3 (people who have known Anthony since his conviction and can attest to his positive role in their lives and to his being a model prisoner on death row).


STATEMENT OF THE OFFENSE AND APPELLATE HISTORY OF THE CASE (TEX. ADMIN. CODE tit. 37, §143.42(4) & (5) (1996)) i. Introduction. On May 22, 1998 Anthony Haynes was a 19-year old Houston teenager and a recent high school graduate with no criminal record whatsoever. He dreamed of attending college and a military career. Anthony’s parents, one of whom was an arson investigator with the Houston Fire Department, had provided a strict but loving environment for their son, who was well liked and admired by family, relatives and friends alike. He was seen by them as having an essentially happy-go-lucky attitude toward life, and was respectful toward his family and authority. He was the last person his loved ones expected to commit a tragic act of violence that would end the life of a Houston police officer. In 1997, Anthony graduated from Dulles High School in Sugar Land, in the Houston area, and then enrolled in the Navy “Boost” Program in Rhode Island. This selective and competitive program was designed for students who had excelled in high school ROTC and were thinking of a career in the Navy, possibly with a view to acceptance to the United States Naval Academy. Anthony liked the discipline and routine of the military, had excelled in high school ROTC, and tried hard to succeed in the Boost Program. -5-

Unfortunately, he did not quite make the needed grades, and had to return home to Houston. This, the first major failure in his life, triggered a number of events that were to have tragic consequences for two families. He lost his scholarship to Morehouse College, an offer he had been very proud of. He also began to experiment with drugs. On the night of May 20, 1998, for the first time in his life Anthony took a particularly dangerous drug, crystal methamphetamine (“crystal meth”). The potent effects of the drug caused him to lose all sense of himself and his ability to make measured judgments. It also led him to become involved in a number of acts that would land him on death row. After first sampling the drug, Anthony could not sleep, but instead wandered around Houston in a manic state, randomly visiting friends, without any plans or purpose. On May 22, 1998, Anthony got together with two friends, one of whom, Tim Reese, had a significant history of delinquent behavior. They drove around Houston in Anthony’s father’s pickup. To raise some money, they drove up to pedestrians, pretended to ask directions, and then pointed a gun at them. The gun was not fired and the victims who refused to hand over their wallets and ran away were not pursued or fired upon. The unplanned and amateurish nature of these mostly unsuccessful robberies attests to the potent influence of the crystal meth on Anthony at this time.


Later that evening, Anthony randomly fired the pistol into the air as he drove. As fate would have it, the bullet landed on the windshield of off-duty Houston Police Department officer Kent Kincaid’s SUV, shattering it. The off-duty officer, who was on his way to a sports bar with his wife, was understandably irate and thought someone had thrown an object at his vehicle. He turned around and followed Anthony’s truck until it turned into a driveway. The officer, dressed in plain clothes in his personal vehicle without any police markings, pulled up and blocked the driveway, jumped out and confronted Anthony, who was holding the pistol on his lap. As the off-duty officer reached behind to pull out his identification from the back pocket of his pants, Anthony, fearing he was going to be shot, fired his pistol once. Anthony did not know the victim was a police officer when he fired. Anthony was soon arrested and charged with the murder of Officer Kent Kincaid. It was charged as a capital crime, after Anthony was coerced into making statements about the killing that were not true, namely that he knew the victim was a police officer when he shot. Anthony’s family initially hired private counsel to represent their son, but this soon proved too expensive and the privately-retained attorney and another were eventually appointed by the court. Unfortunately, these attorneys did little to defend Anthony at either the guilt or the punishment phase of his trial. Relying almost totally on the fact that the officer


was off-duty at the time of his death, and the defense theory that this meant the shooting was not a capital crime, many crucial details were not investigated or pursued.3 Despite a wealth of mitigating evidence, and a huge number of important witnesses who were eager to testify, the punishment phase was almost an afterthought. Many family members were never interviewed, and even when they volunteered to testify, their help was inexplicably refused. This failure was especially prejudicial, because the State’s case for Anthony’s probability of committing future acts of criminal violence was especially weak, as he had no prior arrests or police contacts of any kind. The almost complete lack of any indications of a high probability of his committing future acts of criminal violence can be seen by the State’s resort to minor disciplinary incidents in high school, amounting to verbal altercations, to bolster their case as to this special issue. Even these incidents could have been effectively challenged, but, due to the deficient investigation, they never were. The robberies immediately prior to the shooting were introduced as aggravating evidence, and they were the basis of the State’s case for “future dangerousness.” But the jury was never told about Anthony’s drug use that night that was the precipitating factor in these incidents.

As the Texas Court of Criminal Appeals recognized, the crucial question was not whether or not the officer was on or off-duty, but whether “he was acting in the lawful discharge of his official duties as a peace officer at the time of his murder.” Haynes v. Texas, No. 73,685, at 2. The CCA ruled that “[t]he record establishes that Sergeant Kincaid ...was off-duty at the time of his death.” Id. at 3.


Although the State’s case for “future dangerousness” was extraordinarily weak, Anthony’s attorneys never effectively challenged it, even though they had a lot of material to work with. As this application shows,4 there were literally dozens of

family and friends who could have testified about Anthony’s non-violent nature, his good deeds in the community, his willingness to help others and other facets of his good character. This information was made available to the trial attorneys, and Anthony’s parents compiled long lists of people who wanted to help. Yet, tragically, this help was ignored, and Anthony’s punishment phase trial was a non-event. The jury never received a picture of Anthony for what he really was and is: a young man who made a tragically bad decision one night, but who never intended to kill anyone, who did not know the person who approached him was a police officer; whose statements were coerced by the police, and who does not deserve to be on death row. Capital punishment is reserved for the worst of the worst. Anthony Haynes simply does not qualify. ii. Statement of the offense. On May 25, 1998 a complaint was filed in Harris County District Court charging Anthony Haynes with the shooting of Houston Police Department Officer Kent Kincaid and on July 22, 1998 an indictment was filed against Mr. Haynes. On September 19, 1999, after a jury trial, Mr. Haynes was found guilty of capital murder

See affidavits in Appendices 2 and 3.


in Cause No. 783872 in the 263rd Judicial District Court of Harris County, Texas, and on September 24, 1999, in accordance with the special issues submitted pursuant to Tex. Code Crim. Pro. Article 37.07, he was sentenced to death. See Appendix 1. iii. Appellate history of the case. On November 12, 1999, after a hearing, the trial court denied a motion for a new trial. On September 29, 1999 Mr. Haynes, through counsel, filed a Notice of Appeal. Anthony Haynes filed his direct appeal in the Texas Court of Criminal Appeals on June 2, 2000. His appeal of this conviction and death sentence was denied by that Court on Oct. 10, 2001. Haynes v. State, No. AP-73,685 (Tex. Crim. App. Oct. 10, 2001)(slip op.)(not designated for publication). Mr. Haynes, through appointed counsel Richard Wheelan, filed his petition for state habeas corpus relief with the 263rd Judicial District Court of Harris County, Texas on February 15, 2001. On August 2, 2004, Mr. Haynes submitted his proposed findings of fact and conclusions of law and on August 3, 2004, the State submitted their proposed findings and conclusions. On August 5, a mere two days after they were submitted, the trial court adopted verbatim the State’s proposed findings, without altering a comma. On October 6, 2004, the Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied Haynes’ state habeas application.


Ex Parte Anthony Cardell Haynes, No. 59,929-01(not designated for publication). Mr. Haynes filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Texas. That Court denied any finding for expert and investigative services. On January 25, 2007, the federal district court denied the petition and also denied a Certificate of Appealability. Quarterman, 2007 WL 268374 (S.D. Tex. Jan. 25, 2007)(“Haynes I”.) Mr. Haynes appealed to the Fifth Circuit Court of Appeals. On April 23, 2008, in a published opinion, a unanimous panel of the Fifth Circuit granted Haynes a Certificate of Appealability (“COA”) on the issue of racially discriminatory use of prosecutorial peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986). Haynes v. Quarterman, 526 F.3d 189, 202-203 (5th Cir. 2008)(“Haynes II”). Oral argument was held on January 13, 2009 and on March 11, 2009, a unanimous panel of the Fifth Circuit issued another published opinion reversing the district court’s denial of habeas relief and remanding the case to the state trial court with instructions to order the State to either grant Haynes a new trial or release him from custody within 180 days. Haynes v. Quarterman, 561 F.3d 535 (5th Cir. 2009)(“Haynes III”). The State then filed for rehearing en banc, which was unanimously denied by the Fifth Circuit on June 2, 2009, no member of the panel or the Fifth Circuit having requested that the Court be polled. Haynes v.


The State sought certiorari review in the United States Supreme Court. After five conferences and a request for the record, that Court granted the State’s petition for certiorari, summarily reversing and remanding the case to the Fifth Circuit. Thaler v. Haynes, 130 S. Ct. 1171, 1175 (2010)(“Haynes IV”). On remand, on August 19, 2011, the Fifth Circuit reversed their earlier holding and denied relief in Haynes v. Thaler, 2011 WL 3652598 (5th Cir. 2011)(unpublished)(“Haynes V”). A petition for rehearing en banc was denied on September 20, 2011. On December 15, 2011 Haynes filed a petition for writ of certiorari in the United States Supreme Court. After being conferenced twice, the petition was denied by the Supreme Court on April 23, 2012. On June 28, 2012, the trial court, the 263rd District Court of Harris County, Texas set an execution date of October 18, 2012 for Mr. Haynes. The current status of the case is that there are no appeals pending in state or federal court. Mr. Haynes does intend, however, to raise in federal court an issue in regard to trial counsel’s ineffective assistance of counsel at the penalty phase, pursuant to the United States Supreme Court’s recent decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012). This issue was procedurally defaulted due to the failure of state postconviction counsel to investigate and raise it in Mr. Haynes’ initial state postconviction proceedings.



The legal issues and claims which have been raised during the judicial process of the case include the following: Issues raised on direct appeal: 1) Insufficiency of the evidence to support the jury’s verdict. 2) Factual insufficiency of the evidence to show that Sergeant Kincaid was acting in the course of his official duties. 3) Legal insufficiency of the evidence to show that appellant presents a continuing threat to society. 4) Trial court error in not suppressing two audio-taped confessions. 5) Trial court error in refusing to suppress the confessions. 6) Trial court error in failing to make findings and conclusions regarding the admission of the confessions. 7) Trial court error in denying defense challenges for cause for four venire-persons. 8) Trial court error in overruling his Batson v. Kentucky, 476 U.S. 79 (1986) objections to the State’s peremptory challenges against four venire-persons. 9) Denial of due process because the judge who presided over and made demeanor rulings at the Batson hearing did not preside over the voir dire and did not observe the prospective jurors’ demeanor, which the State cited to defend their challenges. 10) Challenges to the Texas sentencing scheme and mitigation special issue. 11) Bias against the defense by the trial judge. The following issues were raised on state post-conviction:


1) The unconstitutionality of the mitigation special issue. 2) Unconstitutionality of the jury charge for failure to instruct the jury that a life sentence would result if they were unable to answer a special issue. 3) Trial counsel were ineffective for not allowing Mr. Haynes to testify. 4) Prejudicial final argument by the prosecution. The following issues were raised in federal habeas proceedings: 1) Ineffective assistance of trial counsel for various reasons. 2) Prosecution used peremptory challenges in a racially discriminatory manner, contrary to Batson v. Kentucky. 3) Violation of rights because trial judge did not oversee jury selection. 4) Prosecutorial misconduct. 5) Trial error in admission of Haynes’s statements. 6) Trial error in refusing to strike several jurors. 7) Haynes’ state habeas attorney violated his rights to due process and meaningful access to the courts. 8) Challenges to the Texas sentencing statute, jury instructions, and mitigation special issue. 9) Challenge to the lethal injection procedure. 10) Insufficient evidence of future dangerousness. 11) Error in denying new trial. 12) Erroneous victim impact evidence. 13) lack of volitional capacity. 14) Trial court bias. 15) Challenges under international law. 16) Prosecutorial suppression of evidence. 17) Cumulative error.


THE COMMUTATION POWER This application presents, and a hearing would further establish, compelling reasons for the Board to exercise its power to recommend commutation of Anthony Haynes’s death sentence to one of life imprisonment without the possibility of parole. The primary reason is that, unlike virtually all capital cases that come before this Board, Anthony Haynes lived an exemplary life before this crime (see Appendix 2) and has continued to do so since then (see Appendix 3). The State’s case for “future dangerousness” rested largely on acts committed on the same night as the killing of Sergeant Kent Kincaid. Before Anthony “came off the rails” he was a well-liked young man who had numerous friends and family who saw him in a very positive light. Evidence not heard by the jury shows that Anthony was under the influence of crystal methamphetamine at the time of the crime. Many of the details of Anthony’s background and compelling legal issues were never presented to his jury, or on appeal or in state habeas, due to ineffective assistance of counsel. His life before and since then has been exemplary. Prior to May 22, 1998 there was no history of escalating violence so often seen in capital cases, save for the robberies committed on the same night as the murder. This Board is no doubt habituated to the commonly-seen pattern of months or years of escalating pre-capitalcrime violence, bad or anti-social behavior, or generalized inability or unwillingness


to conform to accepted societal norms. Until May 22, 1998, that pattern was entirely absent in Anthony’s life. The Board is respectfully urged to read the affidavits and statements in Appendix 2, which show an entirely different young man than Anthony’s jury saw. Since then, Anthony has been a model prisoner, influencing many with his change of direction, religious devotion, and cheerful positive attitude. Anthony’s life since 1998 is an exemplary case study in the possibility of redemption, as many of the affidavits herein attest. The Board is respectfully urged to read the amazing

statements in Appendix 3, from people whose lives have been transformed by Anthony. If capital punishment is properly reserved for the “worst of the worst,” this crime simply does not qualify. But before the Board commences its review of the factual bases underlying this application, it is appropriate to recall the purpose and history of the commutation power. In Texas, as in other states, the power to commute a death sentence is an unrestricted power vested in the Board and the Governor. [Texas Const. Art. IV., sec. 11 (Except in cases of treason and impeachment, upon recommendation of the board, the governor may grant a commutation of sentence.)] Note the intermingling legal and political components of the clemency power: legal because the authority comes from a constitution; political because an executive can consider factors that judges and


juries cannot or did not. The power to grant clemency is broad, and is intended to be so as indicated in the constitutional text creating this discretionary authority. The executive clemency power is the embodiment of compassion deeply rooted in our Anglo-American criminal justice system. It has its origins in the JudeoChristian ethics of both punishment and forgiveness. Sculpting this traditional authority into its current democratic form, Alexander Hamilton said that such a power is required “by considerations of justice, of humanity and of public policy.”5 The clemency power is, therefore, an integral component of the American constitutional structure of checks and balances. As the United States Supreme Court said in 1925: Executive clemency exists to afford relief from the undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of the circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential to popular governments, ? to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. Ex parte Grossman, 267 U.S. 87, 120-21 (1925). In this special case, we are asking you to provide the check constitutionally entrusted to you; reviewing this case for the “evident mistake” that occurred when Anthony’s lawyers failed to present evidence to the jury which would have shown that

The Federalist No. 74 (Alexander Hamilton).


the crime was committed while he was under the influence of a powerful and dangerous drug, that he posed no risk of future dangerousness, and that the crime was a shocking aberration in a life previously full of promise and hope. We are asking you to consider, through these documents and at a hearing, the mitigating evidence of Anthony’s drug use prior to and at the time of the crime, evidence that could and should have been presented to the jury at the guilt/innocence and punishment phases of his trial. But most of all, we are respectfully asking you to carefully read the

affidavits and statements in Appendices 2 and 3, as they show an Anthony that his jury did not have the opportunity to see. Many of these are from people who did not testify at Anthony’s trial and who knew and loved him at that time. Many have come to know and love him since then, in the time he has been on death row. We are confident that had a jury heard this evidence, it would not have found him guilty of capital murder and sentenced him to death. If that jury saw Anthony today, and were able to hear these people who know him best, they would see that he is not a danger to anyone. In fact he has been a source of positive inspiration for the many who have befriended him on death row. (Appendix 3). In exercising the review power in a capital case, it is critical that the Board and Governor have at their disposal accurate information not only about the offense, but also about the offender. Chief Justice Warren Burger underscored this constitutional


imperative while writing for the Court in the landmark case of Lockett v. Ohio, 438 U.S. 586, 605 (1978): Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in non-capital cases. A variety of flexible techniques,probation, parole, work furloughs, to name a few, and various post-conviction remedies, may be available to modify an initial sentence of confinement in non-capital cases. The unavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence. The respect due this case is, at a minimum, a hearing on the commutation of Anthony’s death sentence. This is the respect due not only because an individualized examination is integral to the proper functioning of the executive clemency power, but also because Anthony’s trial lawyers inexcusably denied the jury the opportunity to carry out its own individualized assessment at the judicial level.


GROUNDS FOR COMMUTATION OR ALTERNATIVE RELIEF (TEX. ADMIN. CODE tit. 37, §143.42(8)) The following is respectfully presented on behalf of applicant Anthony Cardell Haynes, who is requesting a commutation of his death sentence to life, or, in the alternative, a 90 day reprieve so that the Board may further investigate the

background of this matter at a live hearing. Without such a hearing, Mr. Haynes cannot ascertain the areas or issues of significance to individual members, and he can only guess about the Board’s concerns and any questions it may have about his request. Mr. Haynes’ grounds for commutation are hereby presented in question and answer format, in the belief that this will best assist the Board in clearly determining the grounds for the requested relief. It is not intended as a substitute for a live hearing, which would be the only adequate means of ascertaining the Board’s actual questions and concerns. This presentation also takes into account the dictate that “such grounds shall not call upon the board to decide technical questions of law which are properly presented via the judicial process.” Tex. Admin. Code §143.42(8). When and where did the crime and trial occur? As detailed above, Anthony was convicted of the May 22, 1998 murder of Sgt. Kent Kincaid in Houston, Texas. The trial took place in the On September 19, 1999, in the 263rd Judicial District Court of Harris County, Texas. On September 19, 1999, -20-

Anthony was found guilty of capital murder and on September 24, 1999, in accordance with the special issues submitted pursuant to Tex. Code Crim. Pro. Article 37.07, he was sentenced to death What is the current status of his appeals? As recounted above, Anthony has no current appeals pending, but intends to appeal in the federal courts on the basis of his state habeas counsel’s failure to present compelling mitigating evidence that would have made a strong case for a life sentence. Is Anthony Haynes guilty of the crime? Anthony has admitted he caused the death of Sgt. Kent Kincaid, and he has taken full responsibility for it, but he is not guilty of capital murder, as he did not know the victim was a police officer. The crime occurred at night when the victim was in casual, plain clothes, in his personal vehicle. Statements were introduced at trial that purported to show that Anthony admitted he knew the victim was a police officer, but Anthony has always stated that the statements were obtained under coercion. Was Anthony Haynes’s trial unfair? The trial is virtually a case study of the Texas death penalty system as it is currently administered. First, trial counsel were woefully inadequate, and did not take


the most basic steps in interviewing witnesses, developing mitigating evidence, or informing the jury of their client’s drug use at the time of the crime. That evidence would have been powerful mitigation at both the guilt phase and the punishment phase, as non-volitional acts are universally regarded as less culpable than planned and pre-meditated actions. Most seriously, they never bothered to show that Anthony’s acts on May 22, 1998 were an abrupt departure and aberration from a lawabiding life. From a young man who dreamed of a career in the Navy, Anthony went to being a convicted capital murdered in a shockingly fast time. The affidavits presented in Appendix 2 are all from people who did not testify at his trial and who could have given this information to the jury. When we compare the meager mitigation testimony Anthony’s jury did hear6 to the affidavits in Appendix 2, there can be no doubt that his jury was not afforded an opportunity to see him as the person he actually was. Additionally, Anthony’s trial was pervaded by racism. The prosecutor excluded four African-American venire-persons on the basis of their alleged “demeanor” which was not even viewed by the judge who ruled on the challenges to these potential


The defense presented hardly any mitigating evidence at the punishment phase. A chaplain, a colleague of Haynes’s father and a community center employee testified very briefly (28 RR 2630, 156-168, 29 RR 37-39), as did Haynes’s grandmothers (29 RR 51-59, 65-73) and his father (29 RR 78-121). The State’s false picture of the defendant as performing poorly at ROTC and having a history of prior violence were not effectively challenged despite many readily available witnesses and evidence to the contrary. (See Appendix 2.)


jurors.7 The judge who had actually observed the jurors’ demeanor was “cleaning pistols on his bench during the questioning of individual potential jurors” as the Fifth Circuit noted. Haynes V at *6.8 In an earlier opinion, the Fifth Circuit Court of

Appeals found the exclusion of the African-American potential jurors so disturbing that they granted Anthony a new trial on that basis. What were the worst failings of Anthony’s trial counsel? 1) His counsel failed to investigate the case, both for guilt/innocence and the penalty phase. They failed to discover Anthony’s use of crystal meth on May 20, 1998, two days prior to the murder and information that he was still under its influence at the time of the murder. 2) They also failed to investigate Anthony’s background. Had they done so, the


The Fifth Circuit initially granted relief and a new trial on this claim (in Haynes III) but the U. S. Supreme Court granted certiorari and reversed (in Haynes IV). 8 See, e.g., Affidavit of Patrica Davis, Exhibit 11 to the district court petition (“During the part where the jury was chosen, the judge presiding over it, Judge Lon Harper, was cleaning a pistol while he was on the bench, in full view of the potential jurors.”). Judge H. Lon Harper was officially reprimanded for his conduct at the voir dire in this case. See “Judge Reprimanded For Repairing Revolvers On Bench“ by Mary Flood, Houston Chronicle, July 13, 2000, Sec. A page 25 (“Visiting state District Judge H. Lon Harper was reprimanded for trying to repair two guns on the bench during a capital trial proceeding, the State Commission on Judicial Conduct announced today...Harper was sitting as a visiting judge in the fall of 1999 picking a capital murder jury in the case of Anthony Cardell Haynes...”); see also “Houston Judge Faulted For Fixing Guns In Court,” Dallas Morning News, July 13, 2000; “Pistol-Packing Judge Is Told Off,” Telegraph (UK), by Philip Belves Broughton, July 14, 2000 (“Judge H. Ron Harper was admonished...”for failing “to maintain order and decorum in the courtroom...Mr. Harper, a visiting state District Judge, was supposed to be overseeing jury selection in the case of Anthony Cardell Haynes, who was facing the death penalty...”); Public Reprimand of H. Lon Harper, Former District Court Judge, Texas Commission on Judicial Conduct (06/28/00)(“The judge disassembled and reassembled two revolvers during voir dire in a capital murder case.”)


defense would have been able to effectively counter prosecution testimony that Anthony would be a danger in the future and would present a threat to society going forward. 3) They failed to allow Anthony to testify and present evidence that he was afraid he was about to be shot when the victim was killed. This would have been the only way to show that Anthony’s confession was coerced and that he did not know the victim was a police officer. 4) Anthony’s mental health problems, including his attention deficit disorder, manic-depressive and bipolar illness, were not presented. 5) They failed to obtain background information, family history, medical records, and testimony from family members. This failure had an important effect, as it was mitigating evidence, so that even though it did not amount to a legal defense to the charges, would have been seen as mitigating at the punishment phase. Were post-conviction proceedings in the case also flawed? Yes. Mr. Haynes’s state habeas attorney, Mr. Richard Wheelan, has been singled out as among the five or six worst and most ineffective capital habeas practitioners in Texas in a series of articles in the Austin American-Statesman.9 The

See “Sloppy Lawyers Failing Clients On Death Row,” by Chuck Lindell, Austin AmericanStatesman, October 29, 2006. (“Houston lawyer Dick Wheelan had done ‘nothing more’ than copy issues already raised and rejected [on] direct appeal...Wheelan had done much the same thing in five previous death penalty cases, each time submitting copied arguments that do not belong in a writ of habeas corpus...”)


obviously inadequate writ Mr. Wheelan filed in state court was 51 pages of generic boilerplate previously-raised argument, and only four claims, none of which involved any extra-record evidence, save for an affidavit from Mr. Haynes. The factual summary and a generic attack on the constitutionality of the Texas death penalty statute constitute 40 of the pages and another generic claim occupies a further four pages. This failure ultimately caused all non-record-based claims to be procedurally defaulted. What were some items of mitigating evidence that the jury never heard at his trial? There was a multitude of additional mitigating evidence not presented to the jury, involving Anthony’s essentially non-violent nature, the fact that this crime was wildly out of character for him, that he had no history of violence, and the like. This potential testimony, never heard by Anthony’s jury, is only hinted at by the selection of letters and documents contained in Appendix 2 herein, to which the Board is respectfully referred. Haynes’ trial attorneys presented very little mitigating evidence at the brief punishment phase of his trial. The defense presented only a minister who testified regarding the BOOST program and Haynes’s remorse, a staff chaplain who testified only as to Haynes’s good behavior in jail awaiting trial, two very brief witnesses who had little to say about Haynes’s background, and Haynes’s father and two -25-

grandmothers, all of whom had were only perfunctorily questioned. 28 RR 156-174; 29 RR 26-119. The evidence Anthony’s jury did not hear are in Appendix 2. They are voluminous and we will attempt to briefly summarize them here. Included herein are the following: The Declaration of Eric Haynes (Anthony’s uncle)(Appendix 2 at 1-2)(“Neither of the defense attorneys spoke to me at the time of the trial”; he was a willing witness had he been asked; would have testified to Anthony’ good character, low risk of future dangerousness, and pride in his ROTC progress); Declaration of Tiffany Deckard (close friend)(Appendix 2 at 3-4)(talked to defense attorneys only briefly, “I did not talk to Mr. Jones at all, and he was distant. Mr. Jones basically brushed me off;” was a willing witness; would have testified to Anthony’s low risk of committing future dangerous acts, could have discredited key prosecution witness Col. Davis, Haynes’ version of the ROTC events and his remorse); Declaration of Earl Washington, Sr.(Houston Fire Dept. Colleague of Anthony’s father)(Appendix 2 at 5-6)(the attorneys “never contacted” [him]; would have been a willing witness to testify to Anthony’s church activities, religious faith and church attendance, participation in Sunday school and youth ministry, pride in ROTC, that he heard Col. Davis speak well of Anthony, knew Anthony as a good kid and non-violent); Declaration of


Lawrence Hughes (Appendix 2 at 9-10) (was never asked to testify but if asked he would have provided crucial testimony about Anthony’s use of crystal methamphetamine, irrational behavior, and paranoia at the time of the murder, and that Anthony was a victim of a recent robbery); Declaration of Kenneth Porter (Appendix 2 at 11)(neighbor)(defense investigators or attorneys never contacted him, would have been willing to testify for Anthony regarding his good character and low probability of committing future violent acts); Declaration of Lee Esther Porter (Appendix 2 at 12)(neighbor)(defense attorneys or investigators never contacted her; would have been willing to testify for Anthony regarding his good character, respectful attitude and low probability of committing future violent acts); Declaration of Beverly Scott (Appendix 2 at 13) (next-door neighbor)(defense attorneys or investigators never contacted her; would have been willing to testify for Anthony regarding his good character, respectful attitude and low probability of committing future dangerous or violent acts); Declaration of Debra Swisher (Appendix 2 at 14)(friend of Anthony’s)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony being “soft-spoken, intelligent, polite,” his pride in ROTC, low risk of future violent acts); Declaration of Sheila Haynes (Appendix 2 at 15) (aunt)(talked to by attorneys, never called as a witness; would have testified to Anthony’s good attitude and low risk of future


dangerousness); Declaration of Sgt. Allen Harris (Appendix 2 at 16-17)(teacher, ROTC instructor)(talked to attorneys superficially, was willing to be a witness regarding Haynes’ success in ROTC; he was actually running the ROTC program, not Col. Davis; would have given a completely different picture of the ROTC “shouting match” than key prosecution witness Col. Davis; and Haynes’ low probability of future dangerousness );10 Declaration of Bonita Thierry (Appendix 2 at 20)(friend of family)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony’s non-violence, low risk of future violence, good behavior); Declaration of Leon Tousant (Appendix 2 at 21)(friend of Anthony)(defense attorneys or investigators never contacted him; would have been willing to testify regarding Anthony’s good character, hard working attitude, aversion toward violence and he saw the crime as an aberration); Declaration of Barbara Taveras (Appendix 2 at 22) (ROTC friend of Anthony)(defense attorneys or investigators never contacted her; would have been willing to testify about Sgt. Harris as really running the ROTC program, Anthony’s respectful attitude, interest in a military career, and she saw the crime as an aberration); Declaration of Ron Royal (Appendix 2 at 23) (friend)(defense attorneys or investigators never contacted him;


Sgt. Harris actually had much more contact with Anthony than Col. Davis in the high school ROTC program. Had Sgt. Harris been called, the prosecution would not have been able to exaggerate a minor classroom argument into a case for a likelihood of committing future violent acts.


would have been willing to testify about Anthony’s non-violence, attraction to a military career, and he saw the crime as out of character); Declaration of Debra Elaine Haynes (Appendix 2 at 24)(aunt)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony being a “good boy, obedient...did not cause problems and was well behaved,” very low risk of committing future dangerous acts); Declaration of Richard Haynes (Appendix 2 at 25)(uncle)(defense attorneys or investigators never contacted him; talked with them briefly at trial; was given the brush-off; would have been willing to testify regarding Anthony’s non-violent nature, good behavior, strong religious background); Declarations of Sharon Davis McElroy (Appendix 2 at 26-27)(friend of family)(defense attorneys or investigators never contacted her; would have been willing to testify that Anthony was quiet and obedient, never violent, and she saw the crime as very out of character); Declaration of Rhonda Jackson (Appendix 2 at 28)(friend)(defense attorneys or investigators never contacted her; would have been willing to testify that Anthony was well behaved, respectful, the crime was out of character and he was a low risk of committing future acts of violence, and he showed remorse); Declaration of Sheila Waters (Appendix 2 at 29)(friend of family)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony’s church and bible class attendance, orientation toward a military


career, the crime was out of character and he would be a low risk to commit future dangerous acts); Declaration of Socorro Herda (Appendix 2 at 30-33)(friend and ROTC classmate)(defense attorneys or investigators never contacted her; would have been willing to testify regarding Anthony’s wish for a military career, that he “is one of the most sincere and honest people [she] had ever known,” his “fervent” involvement in a church group, his non-violent nature and the crime as out of character, his low risk of future offenses); Declaration of Renee Lewis (Appendix 2 at 34) (friend)(defense attorneys or investigators never contacted her; would have been willing to testify about her life-long knowledge of Anthony’s good character, politeness, and low chance of re-offending); Declaration of Renita Royal (Appendix 2 at 35)(friend)(defense attorneys or investigators never contacted her; would have been willing to testify about his good nature and low risk of committing future dangerous acts); Declaration of Yolondo Gaines (Appendix 2 at 36) (family friend)(defense attorneys or investigators never contacted her; would have been willing to testify about her long knowledge of Anthony’s good character, respect toward authority, ADHD, passion for the military, spiritual values, and the crime as out of character); Declaration of Debbie Moerbe (Appendix 2 at 37-40)(family friend)(only received a short telephone call from investigator, was not called by defense, would have testified regarding her long knowledge of Anthony being “honest


and open,” being a mediator, kind and helpful, good deeds, good relationship with his stepfather, lack of anger or violence, untrustworthiness of key prosecution witness Timothy Reese, Anthony’s low risk of future violent acts); Declaration of Lawrence Tate (Appendix 2 at 41) (friend, ROTC classmate)(defense attorneys or investigators never contacted him; would have been willing to testify about Anthony’s good nature, ability to get along with people, crime as out of character); Declaration of Ryan Braud (Appendix 2 at 42)(friend)(defense attorneys or investigators never contacted him; would have been willing to testify about Anthony being picked on, outgoing and nonviolent nature, his nervousness and lack of sleep the day after the crime, and low probability of being violent in the future); Declaration of Cherrie McGlory (Appendix 2 at 43)(friend)(defense attorneys or investigators never contacted her; would have been willing to testify for Anthony); Declaration of Ivory Jackson (Appendix 2 at 44)(great-aunt)(defense attorneys or investigators never contacted her; would have been willing to testify about her 19 year long knowledge of Anthony’s good manners, politeness, respectful attitude, church attendance, and low risk of future violence); Declaration of Melvin Brock (Appendix 2 at 45)(friend)(defense attorneys or investigators never contacted her; has known Anthony from his birth and would have been willing to testify about his knowledge of Anthony’s politeness and low risk of future violent acts); Declaration of Portia Rose (Appendix 2 at 46)(local attorney


friend of the family)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony’s respectful attitude, church and ROTC activities, pride in the BOOST program, and non-violent nature); Declaration of Darryl Smith (Appendix 2 at 47)(friend)(defense attorneys or investigators never contacted him; has known Anthony since he was a child, would have been willing to testify about his good manners, respect, politeness and low risk for future violence); Declaration of Bonita Padmore (Appendix 2 at 48-49) (friend)(defense attorneys or investigators never contacted her; would have been willing to testify regarding Anthony’s good manners and respect, military plans, and low risk of future violence); Declaration of Devlin Jackson (Appendix 2 at 50)(friend)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony’s good character, non-violent nature and low risk of future violence); Declaration of Nezdra Ward (Appendix 2 at 51) (friend)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony’s good behavior and manner, the crime as out of character and low risk of future violence); Declaration of Toya Terry (Appendix 2 at 52-53)(friend)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony’s participation in a medical volunteer visiting program, respect toward others, extreme remorse after the crime, good nature and low danger of future violence); Declaration of Cleophis Lewis


(Appendix 2 at 54)(neighbor)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony’s decent and responsible character and low risk of future dangerous acts); Declaration of Courtney Davis (Appendix 2 at 55)(stepfather)(talked to by investigator, never called at trial, would have testified to his good relationship with Anthony); Declaration of Angela Malcolm (Appendix 2 at 56)(friend)(defense attorneys or investigators never contacted her; would have been willing to testify about Anthony’s courtesy and respect for authority figures); Declaration of Tiombe Davis (Appendix 2 at 57)(friend)(defense attorneys or investigators never contacted her; would have been willing to testify about Sgt. Harris as actually running the ROTC program, could have given another version of the verbal incident with Col. Davis, Anthony’s non-violent character and low risk of future violence). Since the trial, how has Anthony lived on death row? Is this any reason to spare his life? In the thirteen years since his trial and conviction, Anthony has had an extraordinary and truly inspiring redemptive life. He has changed and he has changed others. The testimony of these people who have come to know Anthony since his trial are contained in Appendix 3, and the Board is respectfully urged to read them carefully. Here is a summary of what they tell about the kind of person Anthony is now: -33-

Ms. Sabine Courreges, of Ogeu, France (Appendix 3 at 1), who has corresponded with Anthony for ten years, writes that he “has become one of my best friends.” She is currently pregnant and “will probably give his name to my child, if a boy” because he is “run by a trust for the Creator, exemplary for me” and his determination “is a daily inspiration for me.” “He realized his own responsibility and expresses only love, avoiding anger, hatred and madness in which his companions in misfortune almost sink.” She also writes that Anthony’s “openness, tolerance and generosity are example[s] in my life.” “I think he is no longer the person he was when he committed this crime. I think he is good and lightful. Anthony’s death could be a big loss for humanity because his kindness state is now a benefit for everyone. He prays, hopes and believes daily.” Ms. Courreges writs “I love and will always love him no matter what will happen. He is one of those beautiful flames in my life, and I just hope he can continue to sow such seeds.” (Appendix 3 at 1.) Elisa Oliveri of Genoa, Italy (Appendix 3 at 2) writes that she too has corresponded with Anthony for ten years. Anthony is a person that made some serious mistake[s] at the very beginning of his youth, he had the time to reflect about it, to wonder about the reasons that bring him to do that...I see he is a different person from the boy who killed a man, I mean that he is the same person changed by more than ten years of study, meditation, reflection, about himself, about living and about God. His intense spiritual life changed him deeply. -34-

Anthony has “been able to use this time for a personal path of growth.” Although Ms. Oliveri has written to others on death row, she writes that “I hadn’t seen this kind of change in other person[s]: some people refuse to speak about their crime, or claim that they are innocent in spite of all the proofs, or show a sort of religious fanaticism...But you don’t find those things in Anthony.” “I personally believe that Texas should not execute him because this would be a heavy loss for all the person[s] that Anthony can benefit with his presence, his words, his teachings. His friendship means so much for the ones that had the luck to meet him.” “Anthony Haynes is a young man that has much to give, that his death would be a loss for all his friends, for his family, and for Texas too.” (Appendix 3 at 2.) Shannaiko Bryant of Houston (Appendix 3 at 3) has known Anthony for 15 or 16 years, since high school. She became his girlfriend. When she heard that Anthony had been arrested, she was in shock, hardly able to believe it. Since his conviction, they have remained close through letters and Ms. Bryant continues to be close to Anthony’s mother. Anthony really means a lot to me. He is such a beautiful person. He is smart, funny, and caring. I love our conversations and he gives me great advice on life, relationships, and GOD. He helps me keep my faith. I do believe that what Anthony did is wrong and he should be punished, but not by execution. I love him dearly and I would be devastated if he were to leave this earth and I know his family would be to[o]. -35-

(Appendix 3 at 3.) Kate Buser of San Francisco, California (Appendix 3 at 5), a licensed psychologist, has been writing to Anthony for ten years. She has also visited him and become close to his mother and family. During the time they have corresponded, she has “benefitted from his insight, love, and continued faith in humanity despite his incarceration.” Ms. Buser was encouraged by Anthony to continue her studies for a doctorate when she considered withdrawing. “With Anthony’s support and

encouragement I attained my doctorate and initially worked in the United Kingdom before moving to California four years ago...” “I firmly believe that without Anthony’s support and encouragement I would not be in California today providing this service [clinical director of a state-funded early psychosis program]...In this way people who have never met Anthony Haynes, or indeed heard of him, have benefitted from his presence in the world.” Ms. Buser mentions Anthony’s faith: In the ten and a half years that I have written to Anthony, I have witnessed him become a deeply spiritual individual with a strong and unfailing faith in God. This spirituality is expressed in his obvious caring and love for his family and friends and humanity at large. If Anthony can inspire me to continue my studies and complete a famously difficult Doctorate, which has led to the program development described above, I wonder what else he can inspire the people in his life to do for the greater good. If the execution on October 18th proceeds as scheduled we will sadly never know the other ways in which Anthony may inspire and encourage others in life. -36-

(Appendix 3 at 5.) Melinda Martin of Katy, Texas (Appendix 3 at 6) has known Anthony for 13 years, from when she was summoned to jury duty at his trial and “that is where I met my best friend. I did not know it, at that point, but it changed my life forever.” Ms. Martin writes about how Anthony has changed: Anthony is a changed man. Anthony has never denied what he did, he has always taken ownership of what he did. He has asked for forgiveness from everyone involved and God and he has to live with the consequences of his actions everyday. He has used this time to study the word of God and get closer to God....to teach others around him the word of God....to stay positive and continue to live his life, as much as he can, from behind bars....He does not deserve to die, and I beg of you to look at his life and how he choose to live it, from behind bars, and spare his life...Some men in his shoes may have choose to be angry and lash out at the people around him, but Anthony is a model inmate. He gets along with everyone and shows respect to everyone that he comes into contact with. Anthony is kind, gentle and so smart....He is not a threat to society. If he were released today, Anthony would go on to live a very productive and healthy life in the real world. He is the most positive person I know and that is due to his relationship with God.” (Appendix 3 at 6.) When she visits Anthony, “he is able to point out all the good things and positive things. If he can see good, from back there, then I can see good too.” “Anthony is a great person so please do what you can to help us keep this positive person in our lives. We need him. I don’t know what I would do if I could not see his -37-

smile.” (Appendix 3 at 6.) Jennifer Jackson of Calgary, Alberta (Appendix 3 at 7), has corresponded with Anthony since February of 2010. She writes that he is “caring and

unselfish...Anthony has always been honest and has never hesitated to admit his faults regarding his conviction. I strongly believe that he deserves the chance to live.” “...he has become a close friend of mine...Anthony is an amazing person and I truly feel that society could benefit from his presence.” Anthony himself has admitted that he is thankful that God put him behind bars when he did because he was going down the wrong path, however he has taken responsibility for his actions...a lot of people could benefit from learning about his story, as he is a truly inspirational person....I also believe strongly that the State of texas should not execute him as he poses no threat to the public.” “Anthony is very close to my heart and he has touched the lives of many people who care a great deal about him. Again, I beg you to have mercy upon his soul. (Appendix 3 at 7.) Nolwenn Gremillet, a French citizen working for a multinational company in Athens, Greece (Appendix 3 at 8), writes that she has exchanged over 300 letters with Anthony since January of 2009. Although Anthony never asked her to judge the justice of his sentence, “a precious lesson I learned from him is that there is no place, no situation that does not allow you to somehow better yourself.” Ms. Gremillet has


witnessed his daily commitment to humanist and Christian values, his solicitude towards others in need or in pain, his insatiable thirst for knowledge. The Anthony I know is honest, kind, sincere, compassionate, curious, loving, funny. He has a rich spiritual life, cares for his loved ones and is always there for them. From what I’ve heard, he already had in him many of these qualities when a child and a teenager. If so, why shouldn’t we see him today as a continuity of that child, grown into a good man in spite of that terrible mistake he did in 1998, rather than a living threat to society? Anthony has been paying for that mistake every single day of the last thirteen years and continues to. Anthony’s death...will crush another innocent family...And what an unbearable pain must it be to lose your child that way... (Appendix 3 at 8.) Yolanda Gaines is a family friend who has known Anthony since he was five years old. She has stayed in touch with him since his incarceration and has visited him: He has uplifted, encouraged, and edified everyone in contact with him...He has made an impact on my life as well as many others. During these years he has been a strong, spiritual, and positive person. Despite his situation, he was always there to encourage and support the people around him. He has often given me advice on how to talk and listen to my son who is now 19 years of age. His perspective was genuine and full of wisdom. Sometimes it scares me that he has so much wisdom and has looked at things in a manner that a 70 year old would with many years of experience...But through all of that, I think he has been molded for something special and I do not think that is death...He has changed and I think he will be a powerful source of inspiration for youth. (Appendix 3 at 9.) -39-

Ms. Gaines feels that “once someone has been transformed they should be given a second chance...I am not condoning what happened...because it was clearly a mistake and bad judgment, along with being in the wrong place at the wrong time. Anthony was an above-average student in middle/high school and had no prior convictions and the threat to society mitigation appeared to take none of that into consideration. He is clearly not a murderer by heart; only by law” (Appendix 3 at 9.) Emanuela Oddi of Caste di Lama, Italy (Appendix 3 at 10-11) states that she has been writing Anthony for nine years. She had second thoughts about initiating the correspondence, but Anthony brought me back down to heart in [a] few letters. He taught me to appreciate my life and what I had.” “He was strongly thinking that he deserved what he had for taking the life of a man...He was remorseful and sad for the family of that man and praying every day for their and God’s forgiveness. But never, not one single time he complained or cried or tried to inspire pity to me. He was asking for nothing but my loyal friendship. (Appendix 3 at 10.) Ms. Oddi writes that “Anthony not only has become a special and dear friend but also a very bright light in my life. In every hard situation of my life he was there, with his support, his advices, his words of comfort. I’ve always thought that he was wiser than a boy of his age, he always managed to give me precious advices for my problems.” Anthony was dealing with “[f]ear, loneliness, remorse, sorrow, pain, -40-

regret. Still, never complaining, but dealing with it with great dignity and maturity.” “Today [he is] a strong beautiful man. Someone who can do only good to others. His deep faith in God is something that you can feel from every word that he speaks.” (Appendix 3 at 10.) Ms. Oddi went to visit Anthony in 2007. She found him to be [a] joyful, great talker, curious, smart, caring, attentive very funny guy dealing with his life in prison with resolution and honesty...I don’t think that this letter could convince someone to change his mind about executing my friend, I’m just here to say that Anthony deserve[s] to live because nowadays the world need[s] more people like him. Despite the fact that in the last ten years and more he’s been living in a place with no love or joy or hope, he has so much to give to the world as a man today. His faith enriched him... We are not talking of a psychopathic, a serial killer, a crazy, we are talking about a 19 years old boy who made a mistake that already cost him his life. It cost him a life of sacrifices and sadness. (Appendix 3 at 10-11.) Sara Hester of Vista, California (Appendix 3 at 12), has been writing Anthony for ten years. In that time I have seen him grow as a person in his character, attitude and in his relationship with God. I would not be here today if it weren’t for the way Anthony has helped me in my life and changed my life for the better. I know he has several friends and loved ones who would agree their lives have been changed for the better because of Anthony. In the way he has helped me in my life and others as well, Anthony Cardell Haynes is helping not only make our lives better but he is making the world a better -41-

place. (Appendix 3 at 12.) She also writes that “I recently re-read an early letter from Anthony, I could immediately see the difference in his life now. In his letters now his attitude and character are so positive and he has a desire to live and do something worthwhile in his life now.” (Id.) Anthony made a crucial contribution to her life: A few years ago I had become very depressed and was suicidal. I had written to Anthony to let him know that I wanted to kill myself. He was the only person in my life who was able to talk to me in the way that I needed to change my mind about suicide. If it weren’t for him helping me out during that time in my life I know I wouldn’t be here today. My children would not have a mother and my husband would not have his wife. I am eternally grateful for how he saved my life. He hasn’t just saved my life but through the years he has helped me to become a better person. He asks me questions about myself that really make me look deep within and that has helped me to know who I really am. I am alive today and a better person because of Anthony Cardell Haynes. (Appendix 3 at 12.) Ms. Hester also writes that Anthony has made an impact not only in my physical and emotional life but in my spiritual life as well. We read and study the bible together, pray, and fast. Anthony makes sure that I understand the bible and more importantly that I live it out. When Anthony knew I was starting to live a sinful lifestyle he was quick to remind me that what I was doing was against God and that my actions would not just -42-

separate me from God but would also bring negative consequences into my life. If it were not for Anthony Cardell Haynes I would have continued in what I was doing to bring those consequences into my life. (Appendix 3 at 12.) Ms. Hester asks the Board to consider how Anthony has changed: I know Anthony has changed the lives of the, many, family, friends and loved ones that he knows. In doing this Anthony is not just changing our lives for the better but he is making the world a better place. Anthony has so much more to offer the world if you would just give him the chance. That’s why I believe Texas should not execute Anthony Cardell Haynes on October 18, 2012. If they do Texas will be making a big mistake and causing the world to miss out on the positive impact Anthony wants to make in this world. (Appendix 3 at 12.) Carly Wilder has also come to know Anthony on death row. She writes “[i]n my time being close friends with Anthony, I can let you know with 100% certainty he is not the boy he was 13 years ago. He has grown to become a vivid, intelligent and passionate young man. He has a close relationship with God and strives to live his life in accordance with the fundamentals in the bible.” She also writes “Anthony truly touches everyone he meets and has continued to be there for many friends and family in whatever way he can despite being incarcerated. He has a deep love for all his family and friends, especially his mom. Anthony is not a cold-blooded killer, he was at the time of the incident a young man who felt trapped and made a horrible


impulsive decision which he truly regrets.” (Appendix 3 at 13.) Anthony was only slightly then a minor at age 19 at the time of his offense, not even old enough to legally purchase an alcoholic beverage. Since the offense, Anthony has tried adamantly to reach out to the wife and daughters of the victim on multiple occasions to express his sincere remorse and condolences, but his attempts have repeatedly been denied. This shows he truly regrets his actions and has genuine remorse about his involvement in the crime. Anthony deeply regrets his action leading to the incident, and would do anything to take them back if he could... If given the opportunity, Anthony holds far greater value to the world alive than dead. He has passion in his heart to help people, and he could help prevent other youth from going down the same path he did. He has expressed a strong desire if given the chance to work towards becoming a minister and work with youth. The community could benefit much more from giving Anthony the chance to live, and using him as a tool to other young adults. He could lead and inspire them to a better way of life and to make better choices. He can’t relate to anything from a coffin....Please look at the 33-year old man Anthony is today, and please don’t take away his life judging him only by his worst action. One’s life should be judged by so much more than the worst thing they ever did. It was once said that ‘bravery resides in every heart, and there will come a time where it has to be summoned.’ Please summon that bravery today within yourself... (Appendix 3 at 13-14.) Ms. Desiree Pasquali of Rome, Italy (Appendix 3 at 15-16) has been corresponding with Anthony for ten years. She writes that I started writing to Anthony Cardell Haynes when I was 22 and he was 23 and the thing that struck me at first has been that a so young boy (my same age) was in a death row. -44-

With time we became friends and I had the honor and good fortune to know a person very rare. Anthony is a really good man, deep, with a big heart and a faith that I have rarely known in people. Anthony is a real friend, he is able to understand people, he is able to forgive your fault: during these years sometimes I was wrong with him and anytime he was able to understand me. He is able to listen you with mind and, above all, with heart. (Appendix 3 at 15.) Ms. Pasquali has been touched and improved through her contact with Anthony: ...as well as a good friend, he is an honest person. His heart is honest, his soul and his mind are honest. And I have always trusted him because he deserves every kind of confidence. His letters and words over the years helped me to grow and improve as a person. And it is rare that we can to say this to someone. Anthony is a person of whom it can be said that. In my life Anthony is a true friend and a special person. And I would like that he remain in my life for a long time. (Id.) She strongly feels that Anthony has much to contribute: Anthony does not deserve the death penalty. He is a great guy and he is important for his family, for his friends and for all the people who have had the good fortune to meet him. He is an intelligent man who when he was a boy has committed a serious error, but who has paid and is paying for years. And for years, even if locked in a prison, he was able to do many good things, to give friendship, comfort and faith to others. From many years Anthony is in my life and if the state of Texas will take away the life of him, take away important light in the lives of many people. Anthony is honest and sincere with himself and with others. He is a person who can look at his mistakes and those of others and to understand them in a healthy, honest and right -45-

way. Above all, I want to repeat, Anthony has a rare gift: he is able to understand and forgive. Anthony deserves all the best because he's a guy who can give you all the best. (Id.) Ms. Pasquali also has come to know that Anthony has accepted full responsibility for his crime: Anthony has taken the life of a man but he has always admitted his guilt with honesty and intelligence. He was very young and he did not have a fair trial, not at all. He has not ever been given the opportunity to have a fair and equitable trial. He spent the best years of his life in a death row, with the perennial threat of death. I think he has already assumed his guilt. Despite all this, over the years, he has been able to grow and be the beautiful person that is now. Important for many people. And this is a miracle that Anthony with his heart was capable of doing. I hope that the people responsible for his death sentence understand all this and especially that Anthony does not deserve to die. Anthony does not deserve the death penalty. Anthony deserves another chance in life. (Appendix 3 at 15-16.) Sheila Haynes, Anthony’s aunt writes: I dearly love Anthony and he holds a special piece of my heart. It pains me to have to write this letter. I have known Anthony all of his life. He has been a very loving, helpful and respectful young man. Anthony had always been available and willing to help me in whatever way he could. He has matured and he has truly found God. Yes. He went to church as a youth. But he has a much better understanding of and relationship with God. He has truly inspired me. I remember when he was growing up that he and I could always talk. He is a very insightful and extremely intelligent young man. Anthony is a very special -46-

person. Yes, I admit I am biased due to the love I have for him. I am so sorry for the death of Mr. Kincaid and my soul aches for his family. I offer prayers for them. I truly believe that Anthony regrets his actions. I urge you to issue a Stay of Execution. (Appendix 3 at 17.) Anthony’s great-aunt Geraldine Green has known Anthony all his life and has kept in touch with him since his conviction. She writes: I have known Anthony C. Haynes all of his life and watched him progress throughout the years. Anthony was raised in a Christian home where the principles of God’s word were taught and personified. He accepted God at an early age and demonstrated throughout his teenage life, sincere obedience. Since you have his personal data in your files, I would like to comment on some of the sterling qualities I have observed in Anthony since his incarceration, a spiritually gifted young man whose life has greatly changed for the best. The pain of that very unfortunate crime has made him more sensitive to the pain of others. The sorrow and remorsefulness to the man’s family has made him more sympathetic to the sorrow of others. For the past fourteen years, I have included the family in my prayers each night with hopes that they would forgive Anthony for taking their love[d] one’s life. Anthony chose the wrong road which was hurtful and very embarrassing to both families, but he accepted the wrongdoing with the harshest punishment. Now I ask the Texas Board of Pardons/Clemency Section prayerfully, to give this offender another chance at life by lowering his punishment. (Appendix 3 at 18.) Reginald Davis, who formerly worked with the Department of Corrections as


a Corrections officer and Parole Officer, writes as follows: Therefore, I understand the seriousness of Anthony’s crime and the importance of community safety. I also know that Anthony was raised in a very loving and supportive family. He finished high school and earned an ROTC scholarship and was very excited about completing college and serving his country as an officer in the military. I think that Anthony’s family and educational background shows that he would not be a future threat to society, however, he made a horrible mistake. I want the officer’s family to know that I am very sorry for their loss and since I have worn the uniform and worked closely with police officers I also grieve when an officer loses his or her life. Therefore, I would not write this letter on behalf of Anthony if I felt he was some type of monster or would be a future threat to the community. As I type this letter my thoughts are I wish that the officer’s family knew Anthony better and although he took the life of their love[d] one he is not a monster but a very spiritual young man who made a very bad mistake. If Anthony is executed I will have to reevaluate why for so many years that I worked in a system that took a young man’s life where his personal and criminal history did not fit his punishment. (Appendix 3 at 19.) Anthony’s mother Patrica Davis writes this: Anthony was raised in a Christian environment and was taught the essence of courtesy. Treating Others As You Would Like To Be Treated. Since Anthony has been incarcerated, it has changed his entire life. To God be the glory of the great things Anthony has done for others in his spiritual walk and continues to do so. The pastor said in church last month that no parent should have to bury their child. I cannot imagine this happening. I also cannot imagine what the Kincaid family has gone through for the past fourteen years. -48-

Anthony unfortunately made a wrong decision on May 22, 1998 that changed not only my families life but Officer Kincaid’s family. There is not a day that goes by that I don’t pray for the Kincaid family. I can’t imagine their pain. We have all suffered dearly. I am pleading for you to spare my son’s life. Not because he is my son, but because he truly regrets taking the life of Sgt. Kent Kincaid, husband and father. (Appendix 3 at 20.) Anthony’s father, Donald Haynes (Appendix 3 at 21-22), has himself had a career in law enforcement: I am a retired Assistant Chief Investigator with the Houston Fire Department with over 31 years of service. TwentyTwo of those years were served as a Texas Certified Peace Officer in the Houston Arson Bureau. My educational background consists of a B.S in Psychology from University of Houston in 1974 and a M.S. in Criminal Justice Administration from Sam Houston State University in 1988. I have been a State of Texas Certified Polygraph Examiner since 1978. I am also a graduate of the Federal Bureau of Investigation (FBI-NA) 166th session. (Appendix 3 at 21.) As a result, the circumstances of the crime have been particularly painful for him: As a former peace officer, I always sought justice for all involved in criminal matters. It is extremely painful to see my son being denied that same type of justice I worked so hard to provide. At the very instant Sgt. Kincaid reached behind his back and was shot, Anthony did not know what Sgt. Kincaid was reaching for and he also did not know Sgt. Kincaid was a police officer. Anthony was in fear of his life and he acted in self defense. (Appendix 3 at 21.) -49-

Mr. Haynes tells about Anthony’s developmental years: Anthony’s mother, Patrica Hinton-Davis and his grandmother Mrs. Myrtle Hinton raised Anthony until he was about 13 years old at which time Anthony came to live me until he graduated from Dulles High School at age 18 in 1997. While at Dulles High School Anthony was in the Band in his freshman year and played football in his sophomore, junior and senior years. He was an active member of the Air Force ROTC for 4 years. In his senior year Anthony was one of the commanding officers of ROTC program. It should be noted that Anthony suffered some emotional and psychological problems during his senior year at Dulles High School in which he was hospitalized. In spite of this setback Anthony graduated with his class and was offered two military scholarships. He received an Army ROTC Scholarship to Prairie View University, and was selected to attend the Naval Boost Program. He was also conditionally accepted to Morehouse College upon completion of the Boost Program. Upon graduating from high school Anthony entered the Naval Boost Program in Newport, Rhode Island in the summer of 1997. Anthony was released from the Naval Boost Program in April of 1998 and he returned to Houston somewhat disappointed and depressed because he did not finish the program. (Appendix 3 at 21.) Donald Haynes wants to tell the Board about Anthony’s spiritual journey since he has been on death row: Since the day of the tragic incident in which Sgt. Kincaid lost his life due to a decision made by my son, Anthony has been on a true spiritual journey seeking GOD’S forgiveness for the fatal mistake he made. Anthony has influenced and inspired many of his family members, friends and other death row inmates to come to -50-

Jesus Christ. In the last 14 years Anthony has developed a relationship with GOD the out matches many spiritual leaders. He has written spiritual devotionals and writings to encourage others and give them hope. I find myself at awe at his knowledge of GOD’S Word. I have so much respect for his biblical knowledge that he has even inspired me to seek a deeper relationship with GOD and studying the word along with him. I feel that if you allow this execution to take place, just as Anthony’s decision denied the Kincaid family of their loved one by a split second decision, you will deny the world of an opportunity to see and experience the work of one of GOD’S anointed vessels by an analytical decision. He has even influenced me to rededicate my life to GOD. On just about every visit I have with Anthony we discuss biblical issues and subject matters. I know that GOD has given Anthony the ability to understand and share GOD”S Word with others. (Appendix 3 at 22.) Mr. Haynes also wishes to convey his sincere and heartfelt feelings of regret to the family of Sgt. Kent Kincaid: To the Kincaid family of whom I pray for daily. I can’t imagine the pain, loneliness and sorrow of not having a husband, a father and a provider in the Kincaid household. I am so sorry that this fatal incident occurred. I’m sure that precious family moments were taken from the Kincaid family. I know these words have little effect on your unwarranted circumstances. I want you to know that Anthony sincerely regrets the decision he made that night which caused the death of Mr. Kincaid and denied his family his presence with them. We know nothing can replace your husband or father, but we ask for your forgiveness and mercy and we will continue to pray for the Kincaid family. (Appendix 3 at 22.) -51-

Lastly, Mr. Haynes asks the Board for mercy: The execution of my son, Anthony C. Haynes by the State of Texas will have a devastating effect on my whole life. It is not the natural order of things in life for parents to have to bury their children. Since Anthony is my only child, one of my main purposes for living will be taken away from me by his execution. I beg and plead that you spare Anthony’s life. I know you have a very important decision to make and I pray that GOD will guide and bless you in your decision making process. I am asking you to spare my son’s life, because I know the decisions he made as a teenager are not the decisions he has made as a man. My son is a changed person who has a heart of remorse for taking Sgt. Kincaid’s life. (Appendix 3 at 22.)

Hasn’t this case already had a thorough review by many courts? The case has been reviewed by the trial court, the Texas Court of Criminal Appeals, a federal district court and the Fifth Circuit, and the United States Supreme Court. However, all of Mr. Haynes’s non-record-based claims were denied as procedurally barred for failure of his state habeas counsel to timely raise them. Mr. Haynes was represented by ineffective counsel through crucial stages of the legal process. Has Anthony had “fair access” to the courts? No. As detailed herein, Anthony has never had a fair trial and sentencing hearing, due to the ineffectiveness of his counsel. He was never evaluated by his


counsel, and thus never had a chance to show, through psychiatric testimony, that his actions were not voluntary. His jury was not told of his drug experimentation just prior to the murder, nor were they told of his background and character as shown herein. He also never had fair state post-conviction proceedings, as his state habeas petition was a bare-bones “boilerplate” document which failed to raise many meritorious issues. These flaws irrevocably tainted and rendered his legal process unfair. Until they are corrected, Anthony has not had “fair access” to the courts. Would the circumstances of Anthony’s crime alone merit the death penalty? No. While the intentional killing of a police officer certainly merits the death penalty, Anthony had no way of knowing that the off-duty, plain-clothed Sgt. Kent Kincaid, driving his private vehicle at night, was actually a police officer rather than an irate motorist experiencing road rage over a broken windshield who was about to shoot him. It is generally recognized that the death penalty should be reserved for the “worst of the worst” and this case, while certainly serious, simply does not qualify. There was no preconceived intent to commit murder, no planning and no premeditation. Yet Anthony’s jury was never given the opportunity to assess his crime for what it really was. Anthony is much more than the sum and substance of his worst act.


What does Anthony have to say to the victim’s family? From the day of his arrest, Anthony has expressed profound remorse about what he did, and is deeply sorry for the pain he has caused the Kincaid family and sincerely asks for their forgiveness, but also understands if they cannot forgive him. He has taken full responsibility for his actions and continues to do so. He has tried to reach out to the victim’s family to tell them this. Anthony and Sgt. Kincaid’s elder daughter are currently participating in the victim mediation program sponsored by TDCJ and Anthony will talk to her about anything she may wish. They will be meeting face to face. He believes it is important for the family, in order to achieve closure, to understand how the death of their loved one came about. If there is anything Anthony can do to promote the healing process for the family, he has expressed his willingness to help. He is eager to meet with any other members of Sgt. Kincaid’s family that should so desire. Anthony’s family and friends also wish to tell the victim’s family that they too feel their pain and sorrow for their tragic loss. What is Anthony requesting in this clemency application? He is not asking to be released or pardoned. He only wants the opportunity to live the rest of his life in prison. Why should this Board overturn the opinions of the courts that have reviewed this case, and overrule the jury’s verdict? This is, in essence, the crucial question for this Board to consider. The reasons -54-

are manifold: 1) At the time of the crime, Anthony Haynes was a nineteen year old youth, whose life had come apart when he as dropped from the Navy BOOST program. The condition rendered him volitionally incapacitated and unable to control his behavior and impulses. There was no intent to murder the victim. Yet the jury did not hear this evidence. 2) Anthony has not had “fair access” to the courts because he has never had an opportunity to present to a jury the overwhelming evidence of the kind of person he actually is and was. Appendix 2 contains a large number of affidavits from friends and acquaintances who paint a vastly different picture than the one the jury heard at his trial. His state habeas attorney filed a totally inadequate writ and failed to seek out these people. Since then, the courts have held these claims to be procedurally barred. 3) Under evolving standards of decency, it is generally accepted that one who acts not out of free will but as a result of some condition such as being under the influence of drugs, such as Anthony’s use of crystal methamphetamine, is less culpable than one who acts out of rational pre-meditation and free will. Therefore, the execution of such people would offend basic standards of justice. 4) The documents and letters contained in Appendices 2 and 3 contain literally dozens of reasons why this Board should commute Anthony’s sentence to life. It is


respectfully urged that the Board carefully review these submissions. These letters and declarations have been summarized herein. The outpouring of support for Anthony, and the testimony of those whose lives have been changed for the better by knowing him, are strong indications that he should be given a chance. 5) Anthony is deeply sorry and remorseful for the pain and sorrow he has caused the victim’s family. He was not a violent, dangerous person prior to the crime, as evidenced by his record totally devoid of any crimes of violence, and the testimony of his family as to his character. He has not been a violent person since then. He has reached outside the narrow confines of his life on death row to have an impact on many who have grown to love and respect him. 6) Anthony was only nineteen at the time of the crime. Many of the statements included herein mention Anthony’s young age at the time of the crime, nineteen, which is a significant mitigating factor in deciding punishment. 7) Anthony has shown great remorse for the crime. The letters and declarations in Appendices 2 and 3 virtually all attest to the great sorrow and remorse Anthony has felt every day he has been on death row. 8) Anthony has been a model prisoner during his time on death row. He has not engaged in violent acts in the more than thirteen years in prison after the crime. Anthony is not a danger to anyone. We firmly believe that at least one juror would


have voted to spare his life if they had been told of his positive character and background. Because his attorneys failed to provide that crucial information, the death sentence they rendered is fatally flawed. It should be commuted to the one alternative punishment that would have been available: life imprisonment. However, no arguments from counsel can ever take the place of the thoughts and feelings of Anthony’s loved ones, in their own words. Appendix 3 contains letters from Anthony’s family, friends and supporters, in which they give their own reasons for the Board to consider a commutation of Anthony’s sentence. STATEMENT OF THE EFFECT OF THE CRIME FOR WHICH MR. HAYNES HAS BEEN CONVICTED UPON THE FAMILY OF THE VICTIM (Pursuant to TEX. ADMIN. CODE tit. 37, §143.42(9) (1996)) The only members of the victim’s family known to be involved in this case are the victim’s wife and two daughters. At Anthony’s trial, Nancy Kincaid, the victim’s widow, testified that she had a very strong relationship with her husband, that they were married for 18 years, and were very close. 29 RR 127.11 Everybody liked the victim, and he would help people when they needed it, and he was very handy. 29 RR 127. Sgt. Kincaid worked the night shift so that he could be around his two daughters a lot. 29 RR 128. He helped them with softball and tee ball and karate classes. 29 RR 128. His daughter Courtney was six at the time and it was hard for her to

“RR” references the Reporter’s Record, the trial transcript in this case.


understand what was going on. 29 RR 128. As she had a hard time verbalizing, she did a lot of crying and had temper tantrums, and was at the nurse and counselor a lot at school. 29 RR 128. The other daughter, Jenna, who was eleven at the time of the trial, was devastated and would cry at night for two hours for several months, and, although she has gotten stronger, it still affects her a lot. 29 RR 129. Mrs. Kincaid depended on her husband a lot, he took care of the cars and the household, and she had to take a full-time job. 29 RR 129. Anthony understands, and this testimony, along with newspaper accounts, indicate that the victim was loved and is missed greatly by his family, relatives and friends. Anthony is participating with Sgt. Kincaid’s elder daughter in TDCJ’s victim mediation program.

CONCLUSION Execution, the most extreme and permanent of punishments, does not fit the circumstances of this crime or this defendant. If there has ever been a moment in which the clemency power, as described by Alexander Hamilton, is required “by considerations of justice, of humanity and of public policy,” this is it. Justice would right the wrong of exclusion of basic and essential defense testimony at Anthony’s trial, basic minimal norms of due process during in post-conviction proceedings, and give voice to the many eloquent statements presented herein that give reasons to -58-

choose life over death. WHEREFORE, for the reasons stated herein, and in the appendices submitted herewith, Anthony Cardell Haynes Jr. convicted in the County of Harris and ordered to be executed on October 18, 2012, by and through his undersigned counsel, respectfully requests that the Texas Board of Pardons and Paroles recommend to the Honorable Rick Perry, Governor of the State of Texas, that he commute his sentence of death to life imprisonment, pursuant to Texas Const., Art. IV, sec. 11 and Texas Administrative Code secs. 143.51 and 143.57, et. seq. In the alternative, Mr.

Haynes asks the Board to recommend to the Governor that he grant a reprieve of his execution for a period of 90 days so that the Board may fully investigate and consider the facts of his case and wrongful sentence of death and the merits of this Application. Dated: September 17, 2012. Respectfully submitted,

A. Richard Ellis Texas Bar No. 06560400 75 Magee Avenue Mill Valley, CA 94941 (415) 389-6771 FAX: (415) 389-0251

Counsel for Anthony Cardell Haynes, Jr.