Holiday's Filing Asking For New Lawyers

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Document: 00513265976
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Date Filed: 11/10/2015
No. 15-70035
In The United States Court Of Appeals
For The Fifth Circuit
RAPHAEL DEON HOLIDAY,
Petitioner-Appellant,
v.
WILLIAM STEPHENS, DIRECTOR

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
On Appeal from the United States District Court
for the Southern District of Texas, Houston Division
USDC No. 4:11-CV-01696
REPLY TO RESPONDENT-APPELLEES OPPOSITION TO STAY
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Petitioner-Appellant respectfully files this Reply to the Opposition filed by

Respondent-Appellee Williams Stephens (the State) in support of his Motion for
Stay of Execution.
INTRODUCTION
While an execution date looms, Mr. Holiday is having to litigate against two
distinct entities now aligned against him: (1) the State and (2) Mr. Holidays own
counsel appointed under the Criminal Justice Act, Seth Kretzer and James
Volberding (CJA Counsel). The impropriety of this circumstance underscores
why Mr. Holiday sought relief from the district court, why the district court abused
its discretion in denying that relief, and why a 2251 stay is warranted so that
relief from this Court will be meaningful, as binding precedent requires. See,
e.g., Harbison v. Bell, 129 S. Ct. 1481, 1491 (2009) (In authorizing federally
funded counsel to represent their state clients in clemency proceedings, Congress
ensured that no prisoner would be put to death without meaningful access to the
fail-safe of our justice system.) (quoting Herrera v. Collins, 506 U.S. 390, 415
(1993)) (emphasis added).
Mr. Holiday has a statutory right to conflict-free counsel willing to pursue
all relief available to him under 18 U.S.C. 3599. See Christeson v. Roper, 135 S.
Ct. 891, 894 (2015) (per curiam) (finding district court did not adequately account
for all of the factors we set forth in Clair in adjudicating a motion to substitute
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counsel); Martel v. Clair, 132 S. Ct. 1276, 1284-86 (2012) (emphasizing the court
would have to appoint new counsel if the first lawyer developed a conflict with or
abandoned the client).
The record plainly shows that a conflict emerged by at least June 30, 2015
when Mr. Holidays CJA Counsel informed Mr. Holiday of their decision to cease
working for him, invited him to find pro bono counsel to take over, then, once he
turned to the district court for help, actively resisted his efforts to obtain substitute
appointed counsel in time to seek various forms of relief still available to him.
That conflict between client and counsel has continued to escalate and is now
playing out before this Court.
The conflict is so manifest that the State, in opposing a stay, is invoking the
very same arguments made by CJA Counsel in asking the Court to summarily
dismiss this appeal. See Opp. at 21 (quoting and embracing CJA Counsels Motion
to Dismiss at 24).
That CJA Counsel here have been laboring under a conflict with their client
cannot be a subject of reasonable debate. They aligned themselves against their
client before the district court and now align themselves against their client and
join arms with the State while suggesting that the only attorney authorized to
undertake this appeal on Mr. Holidays behalf, see TAB A, is somehow a rogue
interloper.
This Kafkaesque scenario is what breeds cynicism about the

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representational rights that Congress enacted and the procedural safeguards that the
Supreme Court has developed specifically for the capital context. See 18 U.S.C.
3599(d) (explaining the statute was enacted due to the seriousness of the possible
penalty and . . . the unique and complex nature of the litigation.); see also Clair,
132 S. Ct. at 1284-85 (discussing the enhanced rights of representation in such
serious cases reflec[t] a determination that quality legal representation is
necessary in all capital proceedings to foster fundamental fairness in the
imposition of the death penalty.) (quoting McFarland v. Scott, 512 U.S. 849, 855
(1994)).
The State, under the auspices of opposing a stay, has now jumped into a
dispute in which its representative expressly declined to participate before the
district court. TAB B. The State took no position in the dispute over Mr. Holidays
right to substitute counsel; but it now purports to describe the procedural events
that culminated in Mr. Holidays proper counsel filing a motion to dismiss their
own clients appeal while asserting that undersigned counsels appearance is
somehow improper and even unlawful. Opp. at 12, 19, 25. The States
pronouncements and basis for opposing a stay are divorced from both the facts and
applicable law.
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ARGUMENT
I.
The State Proffers Only Two Points Responsive to the Motion for Stay
of Execution; Neither Withstands Scrutiny.
The State devotes fewer than 5 pages of a 35-page brief to an argument
regarding Mr. Holidays request for a stay. See Opp. at 10-14. The State argues,
incorrectly, that a federal court lacks jurisdiction to enter a stay under the
circumstances presented here. The State then makes the conclusory assertion that a
stay is not warranted because the State does not believe that the appeal has merit.
Both of these arguments should be rejected.
A. The Court has jurisdiction.
The ability to enter a stay under McFarland v. Scott is not limited to cases
where a capital defendant has not had an initial round of federal habeas review
as the State contends. Opp. at 11. [O]nce a capital defendant invokes his right to
appointed counsel, a federal court also has jurisdiction under 2251 to enter a stay
of execution. . . . [b]ecause 2251 expressly authorizes federal courts to stay statecourt proceedings for any matter involved in the habeas corpus proceeding.
McFarland, 512 U.S. at 858. And as the Supreme Court demonstrated recently in
Christeson, a federal court has jurisdiction to enter a stay where a death-sentenced
individual had filed a 3599 motion (which was denied) seeking substitute counsel
because appointed counsels conflict of interest with the client had hindered his
ability to pursue long-shot relief. Christeson, 135 S. Ct. at 894-95. The Supreme
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Court acknowledged that, [t]o be sure Christeson would face a host of

procedural obstacles even after he obtained substitute counsel, which meant he
might well fail to obtain relief. Id. at 895. Yet the Supreme Court rejected the
futility argument and concluded that [h]e should [nevertheless] have that
opportunity, and is entitled to the assistance of counsel in doing so. Id. at 896.
That is precisely the context here. Mr. Holiday is appealing the denial of his
3599 motion seeking substitute counsel. His appointed counsel opposed the
motion below, creating a patent conflict with their client on this issue, which has
culminated in their seeking to dismiss his own appeal so as to avoid scrutiny of the
de facto abandonment of their client.
See Opening Brief.
This de facto
abandonment occurred while their client still had avenues of relief available to him
through habeas and otherwise, and a stay is warranted to enable him to obtain
conflict-free counsel to assist him in pursuing his remaining options.
Moreover, the State incorrectly characterizes the procedural posture of this
case, suggesting that no further habeas litigation is contemplated because Mr.
Holiday only complained that appointed counsels [sic] initially refused to file a
clemency petition. Opp. at 13. A central argument in Mr. Holidays Opening
Brief is that he still has preserved claims that could be pursued in a second, but not
successive, federal habeas petition, which his CJA Counsel simply abandoned. See
Opening Brief at 32-33. There is no requirement that a current habeas action be in
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process, as the State suggests, only that a potential habeas corpus proceeding [be
pending] before the court. Rosales v. Quarterman, 565 F.3d 308, 311 (5th Cir.
2009) (emphasis added); see also In re Hearn, 376 F.3d 447, 458 (5th Cir. 2004)
(concluding stay of execution is imperative to ensure the effective presentation
of remaining bases for relief).
In short, there is no lack of subject matter jurisdiction with respect to Mr.
Holidays request for a stay of execution. Opp. at 2, 12.
B. The States view of the merits of Holidays appeal are neither
relevant nor accurate.
The States only other argument specifically addressing the requested stay is
the conclusory assertion that Mr. Holidays appeal is not meritorious enough to
confer jurisdiction.
Opp. at 14.
The State does not explain how its view
regarding the merits of an issue about which it took no position before the district
court is somehow relevant to adjudicating jurisdiction. What the State endeavors
to do through its Opposition is put before the Court a covert response to Mr.
Holidays Opening Brief.
As explained below, that procedural maneuver is
improper, and the States substantive responses to the merits of Mr. Holidays
appeal are unsound.
II.
Most of the States Opposition Purports to Address the Merits of the

Appeal in a Manner That Is Procedurally Improper and Substantively
Unfounded.
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A. The State demurred before the district court, taking no position with
respect to the issue raised by this appeal.
After Mr. Holidays CJA Counsel had successfully opposed his pro se
motion seeking appointment of substitute counsel, and after undersigned counsel
then initiated this appeal on his behalf, further litigation ensued before the district
court to try to obviate the need for the appeal. For instance, in response to the
notice of appeal, CJA Counsel filed a motion asking the district court to substitute
counsel after all; but instead of agreeing with Mr. Holidays request for substitute
counsel under 3599, CJA Counsel asked the district court to permit them to
withdraw and leave Mr. Holiday without any CJA counsel and to impose the duties
of CJA counsel on the pro bono attorney assisting Mr. Holiday with his effort to
secure adequate CJA counsel. ROA.15-70035.857. The district court denied this
odd request stating:
Mr. Kretzer requests that this court allow Ms. Sween
to represent Holiday not only for an appeal, but as
his only attorney.
In the certificate of conference
accompanying the motion, however, Mr. Kretzer says
that Ms. Sween wishes to limit her involvement in this
case to the appeal currently before the Fifth Circuit
and to request a stay of execution in order that a new
attorney can be appointed.
ROA.15-70035.880.1 Because the district court ruled on CJA Counsels motion

without probing the nature or source of the conflict that had arisen between Mr.
The district court did not suggest that it was improper for pro bono counsel to represent Mr.
Holiday, as both CJA Counsel and the State intimate.
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Holiday and his CJA Counsel, undersigned counsel, on Mr. Holidays behalf, filed
a Motion to Reconsider the Orders Denying Relief under 18 U.S.C. 3599.
ROA.15-70035.927-.935. Before filing that motion, undersigned counsel sought to
confer with the State. Counsel for the State responded: As I explained to [CJA]
counsel yesterday the State takes no position on matters of representation. TAB B.
Because the State took no position on the very subject matter of this appeal, the
State waived its right to take a position now in the context of opposing a stay
motion. Cf. Kelly v. Foti, 77 F.3d 819, 823 (5th Cir. 1996) (noting that a party
must press, not merely intimate, an argument).
Because the State took no
position below, its decision to become an advocate for Mr. Holidays conflicted
CJA Counsel, under the guise of opposing a stay, is improper.
B. The States arguments regarding the merits of the appeal are
unavailing.
A series of recent Supreme Court cases emphasizes that, under federal law,
indigent capital defendants are entitled to appointed counsel to represent them in a
wide variety of circumstancesincluding applications for executive clemency and
in pursuing all available post-conviction process[.]
18 U.S.C. 3599(e).
McFarland expressly recognizes that the right to 3599 counsel necessarily

includes the right to counsel to conduct meaningful research and client-specific
investigations. 512 U.S. at 855, 858. Christeson expressly recognizes that the
right to 3599 counsel necessarily means the right to conflict-free counsel: Even
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if a capital defendant has appointed counsel who were actively representing him
in some matters, that is not enough. 135 S. Ct. at 895. If their conflict prevented
them from representing him in this particular matter[,] he is entitled to a
substitution. Id. When the conflict surfaced, CJA Counsel were not actively
representing Holiday in any respect; and their conflict prevented them from
representing him in the particular matter for which he sought appointment of
substitute counsel. Id.
1.
The States mootness argument is factually incorrect.
Mr. Holidays Opening Brief indicates grounds for relief still available to
him: both unexhausted claims for a second (not successive) federal habeas petition
and clemency.
a. Mr. Holiday has habeas claims that his CJA Counsel
preserved but failed to pursue.
Mr. Holiday has ripe, preserved claims about the constitutionality of Texass
clemency process as applied to him.
In 2012, during habeas proceedings, the district court dismissed two of Mr.
Holidays claims without prejudice since they were not yet ripe for adjudication
because Holiday did not [then] have an execution date[.] ROA.15-70035.786.
Counsel had pled that Texass clemency proceedings were so biased that they were
a sham.
Sham clemency proceedings are, as CJA Counsel noted in the
amended habeas petition, subject to judicial review. See Ohio Adult Parole Auth.
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v. Woodard, 523 U.S. 272, 289 (1998) (OConnor, J., concurring). In light of the
district courts dismissal without prejudice, CJA Counsel could have raised the
claim in state habeas proceedings. Harbison, 556 U.S. at 190 n.7 (Pursuant to
3599(e)s provision that counsel may represent her client in other appropriate
motions and procedures, a district court may determine on a case-by-case basis
that it is appropriate for federal counsel to exhaust a claim in the course of her
federal habeas representation.). If unsuccessful in state court, CJA Counsel could
then have raised the clemency claim in a second-in-time federal petition. A new
federal petition challenging the constitutionality of Texass clemency proceedings
as applied to Mr. Holiday would not be a successive petition under 28 U.S.C.
2244(b). See Panetti v. Quarterman, 127 S. Ct. 2842 (2007).
Therefore, in September 2015, when CJA Counsel opposed their clients pro
se motion seeking substitute counsel, the challenges to the clemency proceedings
had becomeand remainripe.
The record does not indicate why CJA Counsel failed to pursue these nowripe claims they had raised in Mr. Holidays habeas petition approximately four
years ago so as to preserve them. CJA Counsel, along with the State, now argue
that Mr. Holiday has no claims of any kind or, if he does, they are meritless. As
explained above, they are wrong in the first instance; and if the alternative
argument is to be accepted, that means CJA Counsel believe that federal tax dollars
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were properly spent to pay them to raise new, unexhausted claims they nonetheless
viewed as meritless from the outset. Such a position is wholly inappropriate. That
the State is clinging to this kind of strange bedfellow in its haste to see Mr.
Holiday executed is even more unseemly.
b. Mr. Holidays habeas claim is distinguishable from those
this Court has previously rejected.
The State further contends that any challenge to Texass clemency
proceedings would be meritless by recourse to Tamayo v. Perry, 553 F. Appx 395
(5th Cir. 2014). Tamayo, however, did not involve the same issue Mr. Holidays
case presents.
Tamayo involved a section-1983 facial challenge to Texass
clemency procedures. See id. at 397.2 By contrast, the issue here is an as-applied
challenge that implicates the most basic due-process right: the right to a neutral
decision-maker. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004) (holding
that even those being held as an enemy combatant must be given a meaningful
opportunity to contest the factual basis for that detention before a neutral
decisionmaker.). Under Texas law, the ultimate decision-maker with respect to
clemency is Governor Greg Abbott; yet Governor Abbott, the former Attorney
General, represented the State in litigating against Mr. Holiday during his habeas
The Court was not sure if Tamayo also intended to bring an as-applied challenge, but
concluded that his argument lacked any facts specific to him and instead reflected the same
challenge to Texass proceedings that had been previously made and rejected in Faulder v. Tex.
Bd. of Pardons and Paroles, 178 F.3d 343 (5th Cir. 1999). See Tamayo, 553 F. Appx at 402.
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proceedings. ROA.15-70035.243. This conflict suggests that Mr. Holiday, at the

very least, has a good-faith basis for arguing that Texass clemency procedures, as
applied to him, are unconstitutional.
In Woodard, Justice OConnor observed that a clemency scheme whereby a
state official flipped a coin to determine whether to grant clemency, or in a case
where the State arbitrarily denied a prisoner any access to its clemency process
might not withstand judicial scrutiny. 523 U.S. at 289 (1998) (OConnor, J.,
concurring). In Mr. Holidays situation, the States scheme essentially involves a
state official flipping a coin that has the same face on both sides and then permits
that same state official to call the coin toss for his side. In other words, the facts
here give rise to a legitimate, ripe challenge to Texass clemency procedure that is
distinct from the claim made in Tamayo.3
2.
The States attack is at odds with the core rationale of

McFarland.
As explained above, the State waived its right to take a position with respect
to the issue of representation raised by this appeal. Moreover, in weighing in now,
the State misconstrues the key authority animating this appeal: McFarland v.
Scott. In McFarland, the Supreme Court made clear that courts should not put the
3
The State also cites Bible v. Stephens, 2014 WL 5500722 (5th Cir. Oct. 30, 2014), which is also
distinguishable because (1) no execution date had yet been set in that case, so this Court found
any harm from the alleged defects in Texas clemency process was not yet ripe; and (2) in
dicta the Court suggested that the facial challenge was the same as that raised in Tamayo and
Faulder and thus did not seem promising. Id. at *11-*12.
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cart before the horse where the issue is the right to substitute counsel, as it is here.
Specifically, Mr. Holiday is not obligated under controlling law to identify the
specific bases upon which he would prevail in obtaining relief, although he has
provided the essential parameters. Quite sensibly, the Supreme Court concluded
that an unrepresented prisoner should not be required to proceed without counsel
in order to obtain counsel. McFarland, 512 U.S. at 856.
This rationale was developed further in Christeson, decided last term in a
context markedly similar to the one presented here. Christeson had appointed
counsel who developed a conflict of interest with their client. 135 S. Ct. at 892-93.
After initially seeking guidance from outside counsel who were working for
Christeson pro bono, his appointed counsel soon became antagonistic toward the
volunteer lawyer once it became clear that appointed counsels nonfeasance had
potentially jeopardized their clients interests. Id. at 893. Christesons pro bono
counsel then filed a series of motions to substitute counsel, which his appointed
counsel resisted; and the district court denied the motions for similar reasons as
those offered belowparticularly, the district courts view that appointed counsel
had not entirely abandoned the client because appointed counsel had continued to
do some work for him and the court was concerned about abusive delays in
capital cases. Id. The Supreme Court granted a stay and rejected the district
courts reasoning, finding that the interests of justice compel appointment of new
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counsel if the first lawyer develop[s] a conflict. Id. at 895 (quoting Clair, 132 S.
Ct. at 1286).
3.
The clemency application that CJA Counsel hastily assembled

is a sham.
As explained in his Opening Brief, Mr. Holidays appeal is not moot. Mr.
Holiday did not have conflict-free counsel to pursue clemency on his behalf. The
putative clemency application that CJA Counsel threw together in 48 hours was
solely a self-interested face-saving measure. See TAB C. The sham application
was not prepared to serve Mr. Holidays interests and was undertaken without his
knowledge.4
The bad faith with which the sham clemency application was prepared is
evident on the documents face. For instance, on the first page, CJA Counsel twice
misreport Mr. Holidays execution date as February 18, 2015a date that
passed seven months ago. See id. at 1. Most of the sham clemency application
focuses on the gruesome details of the crime, quoting virtually verbatim the factual
recitation found initially in a Texas Court of Criminal Appeals decision and then
in the district courts decision denying Mr. Holidays federal habeas petition.
Compare id. at 2-5 with Holiday v. Stephens, 2013 WL 3480384, *1-*2 (S.D. Tex.
CJA Counsels decision to reverse course and throw together the sham clemency petition
without Mr. Holidays input implicates additional ethical concerns. See Ex Parte Mendoza, No.
WR-76,979-02 (Nov. 4, 2015) (Unpubl.) (admonishing appointed counsel for filing a pleading
that was not authorized by his client and directing that a copy of the order shall be sent to the
Office of the Chief Disciplinary Counsel of the State Bar of Texas.).
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July 10, 2013) (quoting Holiday v. State, Nos. AP74,446, AP74,447, AP74,448
at 25 (Tex. Crim. App. Feb. 8, 2006)). This same materialthat no rational
person could suggest was prepared to evoke an executives sense of mercyis
quoted yet again in full in the States brief to this Court. See Opp. at 6-10. Only in
affidavits, prepared years ago for other proceedings, can one find descriptions of
the horrific abuse to which Mr. Holiday was subjected throughout his childhood.
See id. The sham applications superficial bulk is created by required attachments,
ten-year-old affidavits, and an academic article that has nothing to do with Mr.
Holiday or his quest for clemency.
Worst of all, the sham application ends with a cursory statement that It is
not possible to address the impact of this crime on the family of the children killed.
Neither Raphael nor his attorneys have had any communication with them. Id. at
21. One victim of the crime is the grandmother of the children, Angela Nickerson,
who is also Mr. Holidays mother. CJA Counsel have been in communication with
herprompting pointed anguish over their refusal to pursue clemency for her son
and then their eleventh-hour attempt to manufacture the appearance of a clemency
application solely because, in their words, [a] lawyer from Austin intervened.
See Opening Brief, TAB 4. Mrs. Nickerson is part of the larger untold story of
extreme poverty, degradation, and virtual torture that characterized Mr. Holidays
childhood and that culminated in his responsibility for a devastating crime 15 years
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ago when he was 20 years old. That story has not been investigated let alone
toldnor has the story of his transformation during years spent in prison haunted
by the spirits of three lost innocents.
The States speculation as to whether Mr. Holiday has any hope of evoking
mercy from the executive branch demonstrates a fundamental lack of
understanding of the unique role clemency plays in our criminal justice system.
Clemency does not involve presenting grounds in the form of legal arguments.
See Wood v. Thaler, 2009 WL 3756847, *6 (W.D. Tex. Nov. 6, 2009) (noting
clemency is not a forum in which to relitigate issues that have already been
considered extensively and thoroughly by courts); see also 37 TEX. ADMIN. CODE
143.42(8) (providing an inmate shall not call upon the board to decide technical
questions of law which are properly presented via the judicial process.). As
explained at length in the Opening Brief, clemency involves an act of grace and
proceeds from the power entrusted with the execution of the laws, which exempts
the individual, on whom it is bestowed, from the punishment the law inflicts for a
crime he has committed. United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833). It
allow[s] the executive to consider a wide range of factors not comprehended by
earlier judicial proceedings and sentencing determinations. Woodward, 523 U.S.
at 280-81 (Rehnquist, C.J., concurring).
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Death-sentenced indigents are entitled to appointed counsel who are not

conflicted by self-interest and thus will zealously pursue clemency proceedings
and all other available post-conviction relief on the clients behalf.5 The sham
application that CJA Counsel threw together reflects no more than a desire to save
face before a district court that had appointed them and then stood behind them
even when the record reflected that doing so did not comport with the interests of
justice.
C. The State is wrong with respect to Mr. Holidays burden before the
district court and on appeal.
The State is also incorrect that Mr. Holidays request for appointment of
substitute counsel was properly denied because neither he nor his pro bono counsel
had lined up a specific qualified CJA counsel to accept an appointment. See Opp.
at 2, 25. As a practical matter, neither Mr. Holiday nor his volunteer lawyer has
access to the list of qualified lawyers maintained by the Southern District of Texas
who are willing to accept appointments. More importantly, the fact that Mr.
Holiday did not name a specific alternative to Messrs. Kretzer and Volberding is
not relevant to the analysis under Clair and Christeson. See Opening Brief at 2333 (demonstrating how all Clair factors weighed entirely in favor of granting Mr.
See, e.g., Mosley v. Quarterman, 325 F. Appx 394 (5th Cir. May 22, 2009) (vacating denial of
compensation for clemency proceedings and remanding for further consideration in light of
Harbison); Rosales v. Quarterman, 565 F.3d 308 (5th Cir. 2009) (noting Harbison authorizes
counsel pursuant to 18 U.S.C. 3599 for available clemency proceedings).
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Holidays motion to substitute counsel and how the district court failed to apply
them). Additionally, as the Supreme Court noted in Christeson, the statute leaves
it to the court to select a properly qualified attorney. 135 S. Ct. at 894 (citing
3599(a)-(d) (emphasis added)). And the statute contemplates that a court may
replace appointed counsel with similarly qualified counsel upon motion of
the petitioner. Id. (citing 3599(e) (emphasis added). Neither the statute nor
Supreme Court precedent condition an indigent capital defendants right to
replacement counsel on a requirement that he or a volunteer lawyer identify a
specific lawyer who is qualified and prepared to step in.
See id. at 893-96
(granting relief to an indigent capital defendant who sought appointment of

substitute CJA counsel following an appeal brought by a volunteer lawyer).
III.
The State Fundamentally Misunderstands the Concept of Standing.

The State also devotes a great deal of its Opposition to arguing that Mr.
Holidays pro bono counsel has no standing to represent him before this Court.
The State is mistaken. Standing is not a concept that applies to attorneys, but to
parties with respect to the specific claims they have brought to a court. See Warth
v. Seldin, 422 U.S. 490, 498 (1975) (In essence the question of standing is
whether the litigant is entitled to have the court decide the merits of the dispute or
of particular issues.) (emphasis added).
Mr. Holiday obviously has standing to
appeal the district courts denial of his motion to substitute counsel. He also has a
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right to retain counsel to represent him in pursuing this appeal. As noted in Mr.
Holidays Opening Brief and in his Motion to Strike, Mr. Holidays CJA Counsel
cannot represent him in this proceeding because they were directly adverse to him
belowand continue to be adverse to him here, as evidenced by their attempt to
dismiss this appeal and to align themselves with Mr. Holidays adversary, the
State.
See ROA.15-70035.848; ROA.15-70035.850-.851; ROA.15-70035.924;
ROA.15-70035.857; ROA.15-70035.960-.961; ROA.15-70035.965; see also CJA

Counsels Motion to Dismiss Appeal.
CJA Counsel may not represent Mr. Holiday with respect to the issue
presented on appeal, not because they lack standing, but because they are
conflicted. As the Supreme Court recently held, counsel cannot reasonably be
expected to denigrate their own performance so as to advance their clients
legal position because mak[ing] such an argument . . . threatens their professional
reputation and livelihood. Christeson, 135 S. Ct. at 894 (citing the Restatement
(Third) of Law Governing Lawyers 125 (1998)). A significant conflict of
interest arises when an attorneys interest in avoiding damage to [his] own
reputation is at odds with his clients strongest argument. Id. (quoting Maples
v. Thomas, 132 S. Ct. 912, 925 n.8 (2012)). See also Tex. Disciplinary R. Prof.
Conduct 1.06 (a lawyer shall not represent a person if the representation of that
person: (1) involves a substantially related matter in which that persons interests
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are materially and directly adverse to the interests of another client of the lawyer or
the lawyer's firm; or (2) reasonably appears to be or become adversely limited by
the lawyers or law firms responsibilities to another client or to a third person or
by the lawyers or law firms own interests.); see also ABA Model Rule of
Professional Conduct 1.7(a) (a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest.).
The State confuses standing, a threshold justiciability issue, with
authority, arguing that undersigned counsel cannot serve as Mr. Holidays
appellate counsel because he already has appointed counsel. The State goes so far
as to characterize undersigneds appearance on Mr. Holidays behalf as
unlawful. See Opp. at 19. Neither the State nor CJA Counsel, with whom the
State is now aligned, has offered any basis for their assertion that a deathsentenced indigent, unlike other individuals, may not retain a volunteer lawyer
once he has nominal appointed counsel. If undersigned counsels appearance is
unlawful, then this Court will need to explain why the Supreme Court allowed
pro bono counsel to represent Christeson last term before the nations highest court
on a similar 3599 issue although Christeson still had CJA counsel at the time
whose conflicts were the subject of the appeal, as is the case here.6
See Supreme Courts docket for Christeson v. Roper, No. 14-6973, available at
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/14-6873.htm, demonstrating
that Mr. Christeson was represented before the Court by pro bono counsel Jennifer Merrigan of
Saint Louis University School of Law although he had appointed counsel, whom the Supreme
20
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In short, the doctrine of standing has nothing to do with whether undersigned

counsel may represent Mr. Holiday. The entity that lacks standing with respect to
the merits of this appeal is the State, which took no position on the issue below
because the State sustains no cognizable injury if Mr. Holiday is appointed
conflict-free counsel.
Likewise, the States next friend analysis is utterly inapplicable to this
situation. As the Court well knows, next friend status is a means whereby a third
party can serve as a party on behalf of another who cannot do so as a matter of
lawas when a parent represents a minor in a personal injury case. See, e.g., In
Re Bridgestone Americas Tire Operations, LLC, 387 S.W.3d 840 (Tex. 2012) ( per
curiam) (discussing the scope of next friend status under Texas law).
Mr.
Holidays competence to act on his own behalf is not at issue here. And he did
act.7 He retained undersigned counsel to serve as his representative in preserving
and pursuing his right to conflict-free substitute counsel under 3599. See TAB A.
Lawyers qua lawyers are not acting as a partys next friend when they
represent them in litigation. A lawyer serves as a clients agent, not next friend.
Court decided could not be expected to argue that Christeson was entitled to equitable relief
where Christeson, like Mr. Holiday, had filed a pro se motion seeking substitute, conflict-free
counsel. 135 S. Ct. at 891.
7
As explained in Mr. Holidays Opening Brief, he sought pro bono counsel at the express
direction of his appointed counsel; they urged him to look for pro bono counsel elsewhere in the
same June 30th letter in which they announced that they would no longer do any work for him.
ROA.15-70035.949-.950.
21
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Indeed, a lawyer is a fiduciary bound by certain ethical responsibilities, such as the

obligation not to continue to represent a client once asked to withdraw or when a
direct conflict of interest with the client has arisen. Those rules are not suspended
simply because a lawyer has been appointed to represent a client who has been
sentenced to death.
A lawyer whom a client has authorized to represent him has authority and,
indeed, an obligation to advocate for that person. The States suggestion that
undersigned counsels role in this appeal is somehow improper and even
unlawful is not only incorrect but intemperate. See Opp. at 19. That argument
has no bearing on the legitimate basis for entering a 2251 stay based on the
circumstances and arguments developed in Mr. Holidays Opening Brief.
CONCLUSION AND PRAYER FOR RELIEF
For the foregoing reasons, Mr. Holiday respectfully asks that the Court grant
the Motion for Stay of Execution filed with his Opening Brief so that the relief
sought through this appeal is not meaningless. Further, Mr. Holiday respectfully
asks that the Court award any other relief to which he shows himself justly entitled.
22
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Respectfully submitted,
BECK REDDEN LLP
By: /s/ Gretchen Sims Sween
Gretchen Sims Sween
515 Congress Avenue, Suite 1900
Austin, TX 78701
Telephone: (512) 708.1000
Facsimile: (512) 708.1002
Pro Bono Counsel for PetitionerAppellant Raphael Holiday
23
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CERTIFICATE OF COMPLIANCE
I hereby certify that this filing complies with the ECF filing standards and
Federal Rule of Civil Procedure 32(a)(7)(b), in that the non-exempt portions of this
brief contain 5,444 words and the brief is prepared in Microsoft Word 2007 Times
New Roman 14-point font.
CERTIFICATE OF SERVICE
I hereby certify that on November 10, 2015, I electronically transmitted this
Reply to Respondent-Appellees Opposition to Stay to the Clerk of the Court using
the Courts ECF System. I further certify that counsel of record for RespondentAppellee are being served with a copy of this Reply by electronic means via the
Courts ECF system, as follows:
Ellen Stewart-Klein
Office of Attorney General
Capitol Station
P.O. Box 12548
Austin, TX 78711-2548
Counsel for Respondent-Appellee William Stephens
I further certify that, on this same day, I transmitted a copy of this pleading
to Raphael Holiday at the Polunsky Unit by express mail.
/s/ Gretchen Sims Sween
Gretchen Sims Sween
24
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TAB A
Letter of Representation dated October 19, 2015
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Beck Redden..
I
515 Congress Avenue, Suite 1900 Austin, TX 78701

Phone 512.708.1000 I Fax 512.708.1002
www.beckredden.com
gsween@beckredden.com
October 19, 2015
Re:
Holiday v. Stephens, Civil Action No. 4:11-CV-1696
Rafael Holiday
Polunsky Unit
3872 FM 350 South
Livingston, TX 77351
c/ o Richard Burr via email: dick@burrandwelch.com
Dear Mr. Holiday:
Thank you for the opportunity to represent you as per discussions regarding your
case with Richard Burr that you initiated. This letter describes the terms and scope of the
representation that I will provide you through my law finn Beck Redden LLP (the "Firm").
I realize that this must be a very difficult time for you, but having a letter like this one will
help ensure that we have the same understanding about the services I will provide. Most of
these terms are standard in agreements regarding pro bono representation or in engagement
letters generally.
Scope of Represenration. Through the Firm, I will represent you in an appeal to the
Fifth Circuit Court of Appeals of the district court's Order denying your request to have
substitute counsel appointed to represent you under 18 U.S.C. 3599 in clemency proceedings
and, if necessary, to the United States Supreme Court. In connection with these proceedings, I
will seek a stay of your execution scheduled for November 18, 2015. If relief is granted, I will
withdraw from the representation upon ensuring that you have counsel to represent you in
seeking clemency. We agree to provide you with updates relating to this representation.
Legal Fees. We will be providing legal services on a pro bono basis, which means no
fees will be charged for my services as an attorney. I will have primary responsibility for this
engagement.
Expenses. I will do my best t<? avoid incurring any expenses beyond basic copying,
postage, and filing fees. You will not be billed for these expenses.
Tennination. Either you, as the client, or my Firm may terminate the engagement
upon written notice for any reason.
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Authorization. You specifically authorize me to communicate with your current

counsel, Seth Kretzer and James Volberding, with the court and its personnel as necessary to
enforce your right to seek counsel willing to represent you in seeking clemency.
Work Product. All of the Finn's work product will be owned by the Finn. But in the
event of any termination of the engagement or the Firm's withdrawal, you will be promptly
furnished copies of papers relevant to the proceedings for which the Pinn was engaged
including copies of the Finn's work product
State Bar Notice. The State Bar of Texas requires that we advise you that the State
Bar investigates and prosecutes professional misconduct committed by Texas attorneys.
Although not every complaint against or dispute with a lawyer involves professional
misconduct, the State Bar's Office of General Counsel will provide you with information
about how to file a complaint. Please call 1-800-932-1900 for more information.
If you need to reach me regarding this matter, please feel free to write to me at the
address above. If you agree to the engagement on the terms described here, please sign
below. Keep one copy for you and give the other copy to Mr. Burr to send back to me I
look forward to doing all I can to assist you with this appeal.
I have read this letter and agree to the terms after discussing the scope of the limited
representation you will provide with Mr. Burr:
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TAB B
E-mail exchange between counsel
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Melissa Patak
From:
Sent:
To:
Subject:
Attachments:
Gretchen Sween
Tuesday, November 10, 2015 11:31 AM
Melissa Patak
FW: Raphael Holiday
image001.jpg
OriginalMessage
From:StewartKlein,Ellen[mailto:Ellen.StewartKlein@texasattorneygeneral.gov]
Sent:Thursday,October22,20159:23AM
To:GretchenSween
Subject:RE:RaphaelHoliday
Iamoutoftheofficetoday.AsIexplainedtocounselyesterdaytheStatetakesnoposition
onmattersofrepresentation.
_______________________________________
From:GretchenSween[gswebeckredden.com]
Sent:Thursday,October22,20159:16AM
To:StewartKlein,Ellen
Subject:RaphaelHoliday
Goodmorning,Ms.StewartKlein.Asyouhavelikelyobserved,Ihavenoticedanappealofthe
orderdenyingMr.Holidaysrequestforsubstitutecounsel.Iamnowpreparingaresponseto
themotionhisappointedCJAcounselfiledlastnight.Iamhopingyoumightgivemeacall
sothatImayquicklyappriseyouofmyperspectiveonthismatteranddischargemy
obligationtoconferbeforeIfilemyresponse.
Thankyouinadvance,
GretchenS.Sween
OfCounsel
[cid:1AF66CB2433F47E3BC66074CA20002EA@gbltd.com]
515CongressAvenue,Suite1900
Austin,TX78701
Phone512.900.3217
Fax512.708.1002
gsween@beckredden.com<mailto:lcrain@beckredden.com>
http://cp.mcafee.com/d/FZsScCQm67TQShPP1KVJ6WqbVEVvusudETjhvd7bVEVhudETjhvd7bXPxEVdETjjvohpsp
dAq6f0a8voH7Q4fxOVIxZyIvgg
7bCNP2bHOrz_nVwsYzRXBQSkPhPOdT7SemKDp55mWqfaxVZicHs3jq9JcTsTsSkUxZyIvgg
7bCRECq73CrKcLLcKDuuvYeFfP6NCnaD_a0aDUvJdDeIoum8_3UWvN6FASUesodwIqid40bRoDLDCy0bRfAxFoQg6QXCV
1gRXgui<http://cp.mcafee.com/d/FZsS92gArhoovvjp7fc6XCQrFELCzBZVNUSztd5YQsLCzB5USztd5YQsLLe6zA
SztddZx5BNAShEo_U0ExZyIvgg
7bCO7SaNZ13UsKr7c8KL9KfZvC1POfnKnjpjd7f8TsvoVqWtAklrFEYG7DR8OJMddFCQPtPtPo08xZyIvgg
7bCRECq73CrKcLLcKDuuvYeFfP6NCnaD_a0aDUvJdDeIoum8_3UWvN6FASUesodwIqid40bRoDLDCy0bRfAxFoQg6QXC
D5PbR8Ee6zW>
*********************************************************************************************
*******************************************************************************************
CONFIDENTIALITYNOTICE:Unlessotherwiseindicatedorobviousfromthenatureofthe
transmittal,theinformationcontainedinthisemailmessageisattorneyprivilegedand
1
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confidentialinformationintendedfortheuseoftheindividualorentitynamedabove.Ifthe
readerofthismessageisnottheintendedrecipient,ortheemployeeoragentresponsibleto
deliverittotheintendedrecipient,youareherebynotifiedthatanydissemination,
distributionorcopyingofthiscommunicationisstrictlyprohibited.Ifyouhavereceived
thiscommunicationinerror,immediatelynotifythesenderbytelephoneat713.951.3700and
returntheoriginalmessagetoBeckReddenLLPat
gsween@beckredden.com<mailto:beckredden@beckredden.com>.Thankyou.
*********************************************************************************************
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TAB C
CJA Counsels Facially Inadequate Application for
Commutation of Sentence, or Alternatively, Reprieve from
Execution of Death Sentence
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TO THE TEXAS BOARD OF PARDONS AND PAROLES

AUSTIN, TEXAS
*
*
*
*
IN THE MATTER OF
RAPHAEL HOLIDAY,
Petitioner.
RAPHAEL HOLIDAY'S APPLICATION FOR COMMUTATION

OF SENTENCE, OR ALTERNATIVELY, REPRIEVE FROM
EXECUTION OF DEATH SENTENCE
TO THE HONORABLE TEXAS BOARD OF PARDONS AND PAROLES:

RAPHAEL HOLIDAY, a Texas death row inmate, currently scheduled for
execution February 18, 2015, at 6 p.m., respectfully submits this, his application for
commutation of sentence, or alternatively, reprieve from execution of his death sentence.
I
APPLICANT INFORMATION
Applicant:
Raphael Holiday
Inmate Number:
999419
Location:
Polunsky Unit, Death Row
Attorney:
Mr. Seth Kretzer

Contact information below
Scheduled Execution:
February 18, 2015, 6 p.m., CST
Required Documents:
Copy of indictments
Copy of judgment
Execution Order
Jn the Matter ofRaphael Holiday

Application for Reprieve ofExecution of Death
Puge I
Attachment 1
Attachment 2
Attachment 3
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'
Document: 00513265976
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'
Jury verdict, guilt

Jury verdict, death
Attachment 4
Attachment 5
II
REQUEST FOR INTERVIEW WITH MEMBER OF THE BOARD
Pursuant to Texas Administrative Code 143.43(d), Mr. Holiday's attorney

respectfully requests the opportunity to discuss this application with one of the members
of the Board of Pardons and Paroles. Mr. Kretzer's cell phone is (713) 775-3050. He is
available to meet at the Polunsky Unit with Mr. Holiday at any time.
III
STATEMENT OF THE OFFENSE
The testimony at trial is briefly summarized as follows:

Holiday and Tammy Wilkerson formed a romantic relationship in mid-1996 or
1997. Prior to the relationship, Wilkerson had already birthed two daughters, Tierra
Shinea Lynch and Jasmine Rockell DuPaul, by two different fathers. During the
relationship with Holiday, Wilkerson gave birth to Holiday's daughter, Justice Holiday.
The family couple moved to Plantersville in 1998, and then moved to Madison
County, where they lived in a residence owned by Wilkerson's parents, Beverly and
Louis Mitchell. The residence was located approximately a mile from the Mitchells' own
home in a rural area.
In March 2000, Holiday was charged with aggravated sexual assault of Tierra, and
was excluded from Wilkerson's residence by a protective order. Nevertheless, Holiday
and Wilkerson saw each other on several occasions, and sometimes engaged in sexual
relations on several instances between March 2000 and September 5, 2000. They also
maintained daily phone contact. Although Wilkerson later claimed during the trial of this
case that she was coerced into continuing her relationship with Holiday, Wilkerson never
notified the authorities regarding the alleged violations of the protective order. In August
2000, Holiday was arrested for violation of a protective order after attempting to see her
at her place of employment. Nevertheless, the relationship between Wilkerson and
Holiday continued after his release from jail.
In the Matter ofRaphael Holiday
Application for Commutation, or alternatively, Reprieve of Execution ofDeath
Page2
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-- ------
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On the day of the incident, Holiday drove to Wilkerson's house in the late evening
with two friends, Robert Lowery and John White, got out of the car and sent his friends
away. When he got out of the car, Holiday took with him a pistol, a can of gasoline, and a
screwdriver.
After Holiday's friends left, Wilkerson became alarmed after seeing a figure at the
window and called her parents. Wilkerson's mother, Beverly Mitchell, and Mitchell's
brother, Terry Keller, arrived at Wilkerson's residence. Keller was armed with a shotgun.
As they were placing the girls in the car, Holiday appeared in the house. Wilkerson
immediately left through the backdoor of her house to call for help, leaving her mother,
uncle and children with Holiday. Holiday compelled Keller to put down the shotgun.
Holiday started to pour gasoline from the can he had brought on the ground and on
Wilkerson's car. He attempted to light the gasoline, but it would not ignite. Holiday then
directed Mitchell and Keller to bring the girls inside the house and sit on the sofa.
Holiday and Mitchell left in Mitchell's car to go to her house, leaving Keller alone in the
house with the three girls. At this point, Keller left the house - and the girls - to seek
help.
On arriving at Mitchell's house, Holiday and Mitchell retrieved two five-gallon
containers of gasoline and returned to the Wilkerson's residence. Holiday directed
Mitchell to pour gasoline through the residence, allegedly starting at some recliners in the
living room -kitchen area of the residence and moving throughout the house into the
washroom and bedroom. While in the bedroom, Mitchell testified that she heard one of
her grandchildren call her name and she looked into the living room. Mitchell stated that
she saw Holiday bend down toward the floor, and then she saw a fire start and move
through the room. Mitchell escaped through a window in the back bedroom; Holiday
escaped through the front door. The girls, who had been sitting on the couch when the
fire started, did not escape.
Outside, Holiday took Mitchell's car and started to drive away. As he was driving
away, he collided with a car driven by Madison County Sheriffs Deputy Ivan Linebaugh.
Holiday and Linebaugh engaged in a high speed, multi-agency car chase until Holiday's
car crashed and caught fire.
After Holiday was removed from the car and taken into custody, police and
medical personnel observed that Holiday was burned on his hands, fingers, arms, and
neck. A forensic pathologist who reviewed the photographs taken of Holiday's bum

Application for Reprieve of Execution ofDeath
Page 3
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Document: 00513265976
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injuries opined that the bums were "consistent with" a person being burned by a flash
after bending and reaching down as if to light an floor-level accelerant.
A forensic analysis of the debris recovered from the Wilkerson residence and from
the person of Holiday and Mitchell revealed the presence of gasoline on debris collected
from the laundry room, the kitchen and Holiday's tennis shoes. The results were negative
for gasoline on Holiday's shirt and pants, Mitchell's nightshirt and pants, clothing from
one of the decedents, debris under the couch on which the decedents had been sitting, and
on two cigarette lighters taken from Holiday after his arrest.
.,
I
Wilkerson's father, Louis Mitchell, testified that the residence had a propane gas
stove in which the pilot light was ignited, and a Dearborn heater on which the pilot light
had been turned off. The house also had several electric utilities, the refrigerator, water
heater, washer and dryer, and three air conditioners, all of which were in working order.
'
The State presented testimony regarding the causation of the fire by John DeHaan,
a fire/arson investigator, and president of Forensic Scientists, Inc., from Viejo, California.
DeHaan opined that the only scientifically supportable basis for causation of the fire was
Holiday's having ignited the fire. DeHaan excluded as possible bases for the fire's
causation the stove pilot light, the refrigerator, the air conditioner units, the water heater,
and the floor heater.
The defense expert, Judd Clayton, presented the defense's theory of ignition that
the fire could have started from the water heater located in the bathroom, an electrical
spark the refrigerator, the window mounted air conditioner units, or the pilot lights on the
stove top. Although Clayton agreed with DeHaan that the broiler pilot light could not
have been a possible ignition source, his reasons differed from DeHaan; DeHaan
identified the broiler pilot light as a continuously burning gas pilot but concluded that the
broiler pilot could not reasonably have ignited the gas vapors because the light was
placed too high from the vapors, the light was placed in a compartment which retarded
the entrance of the fumes, and that there had been no resulting explosion. Clayton
excluded the broiler as a possible ignition source because he believed it to be an electrical
ignition system.
The jury found Holiday guilty of capital murder as alleged in each of the three
indictments.
At the punishment phase of trial, the State presented evidence that in addition to
the facts leading up and involved in the incident ultimately leading to the fire in the
Page 4
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Wilkerson residence, Holiday had previously sexually assaulted his maternal aunt and a
cousin, and struck his mother in an argument when he was 15 years of age before leaving
home. A forensic psychiatrist testified on behalf of the State, asserting that based on a
hypothetical set of facts relating to Holiday, that Holiday had an anti-social personality
disorder, and that he was likely to constitute a future danger of violent conduct.
The defense presented several witnesses who testified that Holiday had
experienced a normal, uneventful and Church-going childhood, that he had been
respectful to others, that he had been proud of his (deceased) daughter, and had adjusted
well to incarceration. A forensic psychiatrist testified for the defense that Holiday's
profile on a personality test, the MMPI revealed that he had suffered from depression and
had poor internal mechanisms for coping with stress and frustration.
The jury answered the future dangerousness question in the affirmative, and
answered the mitigation question in the negative, resulting in the imposition of a sentence
of death.
Affidavit of Janette
Wilkerson
Conroe ISD application
for residence in district
Affidavit of Majorie
Minor
Affidavit of Michael
Blackshear
Affidavit of Eric
Nickerson
Angella Diane
Nickerson
8
Raphael's brother. Abuse and injuries by
arents. Severe ove
She was 15 when Raphael was born, the
product of a rape when she was 14. She
verifies abuse of Raphael and dysfunctional
u brin in .

Page5
9
10
Case: 15-70035
Affidavit of Gerald
Hurst, Ph.D.
Second affidavit of
Gerald Hurst, Ph.D.
.,
I
ATF Investigation
Report
Affidavit of Gerald
Bierbaum
Letter from Gerald
Bierbaum
Affidavit of Gerald L.
Byington
Testimony of Prison
Chaplain Rev. Carol
Pickett
Testimony of Louis
Mitchell
Testimony of Beverly
Mitchell
Document: 00513265976
Page: 38
Forensic fire expert hired by defense. The fire

11
investigation presented at Raphael's trial
overstated causation. In his opinion, it is
reasonably possible the fuel was ignited by an
existin broiler ilot Ii ht, not b Ra hael.
The Ph.D. dissertation of the State's fire expert 12
at trial contradicts the methodology and
o inions the ex ert told 'urors at trial.
An ATF fire expert named Special Agent
13
Opperman investigated the fire. "S/A
Opperman was asked to assist in determining
the cause of the ignitition of the gasoline
fumes. Opperman advised the DA that the
piloted natural gas stove and other appliances
in the area could not be ruled out as ignition
sources."
Defense private investigator. There is evidence 14
that Holiday may suffer organic brain damage
as the result of in uries sustained as a child.
15
Description of Raphael's dysfunctional
upbringing and family. Raphael has positive
characteristics and did some good things given
his limited intelli ence.
Defense mitigation investigator. Raphael's
16
court appointed trial lawyers should have told
urors about his abuse as a child.
Description of execution and her role in
17
counseling.
Family friend. Problems in Raphael and
Tami's relationship, illustrating emotional
mindset of Raphael and sources of his
emotional stress.
Same.
In the Matter of Raphael Holiday

Application for Commutation, or alternatively , Reprieve of Execution ofDeath
Page 6
18
19
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Law review article by

distinguished scholar
Gretchen Sween,
Adjunct Professor at
U.T. Law School
20
IV
STATEMENT OF APPELLATE HISTORY OF CASE
AND CURRENT STATUS
A.
Course of Proceedings and Disposition in State Court
Holiday was indicted for capital murder in the 278th District Court of Madison
County, Texas, and tried in consolidated cause numbers 10,423, 10,425 and 10,427,
styled State of Texas v. Raphael Deon Holiday. Following a jury verdict in favor of the
state, the court imposed a death sentence.
Holiday's conviction and sentence were automatically appealed to the CCA in
cause numbers AP-74,446, AP-74,447 and AP-74,448. The CCA denied the appeal
entirely on February 8, 2006. Holiday v. State, 2006 Tex. Crim. App. Unpub. LEXIS 737
(Tex. Crim. App. Feb. 8, 2006).
Holiday's motions for rehearing were denied April 26, 2006. Holiday v. State,
2006 Tex. Crim. App. LEXIS 848, 849 and 850 (Tex. Crim. App. Apr. 26, 2006).
Holiday timely sought a writ of certiorari from the Supreme Court, which denied
his petition November 13, 2006. Holiday v. Texas, 549 U.S. 1033, 2006 U.S. LEXIS
8661 (Nov. 13, 2006).
Holiday timely sought state habeas relief in an application filed in the same trial
court, and assigned the cause numbers 10,423(A), 10,425(A) and 10,427(A), and styled
Ex parte Raphael Deon Holiday.
The trial court recommended denial of all relief and on May 26, 2009 signed
without any changes findings of fact and conclusions of law written by the local
prosecutors.
Application for Reprieve of Execution of Death
Page 7
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The CCA denied relief May 5, 2010 in a summary order in cause numbers WR73,623-01, WR-73,623-02 and WR-73,623-03. See Ex parte Holiday, 2010 Tex. Crim.
App. Unpub. LEXIS 262 (Tex. Crim. App. May 5, 2010).
B.
Course of Proceedings and Disposition in Federal District Court
Holiday timely sought federal habeas relief. In an opinion dated July 10, 2013, the
federal court denied relief and stated that no COA would issue. Holiday v. Stephens, 2013
U.S. Dist. LEXIS 98004.
C.
Course of Proceedings in the Fifth Circuit
On November 12, 2013, Holiday filed a petition in the Fifth Circuit raising
twenty-eight claims. The Fifth Circuit denied relief on October 1, 2014, and denied
Holiday's petition for rehearing on December 29, 2014. Holiday v. Stephens, 587 Fed.
Appx. 767 (5th Cir. 1, 2014).
D.
Course of Proceedings in the Supreme Court
The Supreme Court denied Holiday's petition for writ of certiorari on June 29,
2015 . Holiday v. Stephens, 2015 U.S. LEXIS 4316 (U.S., June 29, 2015).
There are no legal actions by Holiday's court appointed lawyers currently pending
before any court. None are planned.
v
STATEMENT OF LEGAL ISSUES RAISED DURING APPEAL
The most important legal issues presented by Mr. Holiday during his appeal were
these:
1.
The evidence underlying Holiday's capital murder conviction failed to meet

the sufficiency standard of Jackson v. Virginia.
2.
The State violated the Sixth Amendment fair trial jury clause and
Wainwright v. Witt, 469 U.S. 412 (1985), by granting the State's request to
remove juror Sessions.
3.
The State violated Holiday's Sixth Amendment right to confrontation by

Page8
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allowing nurse Jane Riley to relate damaging banned testimonial hearsay by

Tierra Lynch in violation ofCrawfordv. Washington, 541U.S.36 (2004).
4.
The State violated the Fifth and Fourteenth Amendment due process Clause
provisions by allowing nurse Jane Riley to relate banned testimonial
hearsay by Tierra Lynch.
5.
The State violated Holiday's right to adequate notice of the offense and due
process of law provided by the Fifth and Fourtt'.enth Amendment, by
refusing to quash the indictment for: (1) failure to notify the manner and
means that Holiday was alleged to have ignited the fire in an arson case,
and (2) by failing to allege whether the State sought to impose liability by
means of conspiracy or parties law.
6.
The State violated Holiday's Sixth Amendment right to be informed of the

nature and cause of the accusation against him by refusing to quash the
indictment for ( 1) failure to notify of the manner and means that Holiday
was alleged to have ignited the fire in an arson case, and (2) by failing to
allege whether the State sought to impose liability by means of conspiracy
or parties law.
7.
The State violated the Eighth Amendment by barring Holiday's attorneys

from informing jurors that when answering the special issues that state law
does not require a "yes" or "no" answer, but will be satisfied if jurors are
unable to reach a verdict on any special issue.
8.
The State violated Holiday's Sixth Amendment right to a fair jury trial by
denying his challenge for cause of juror Linda Masters.
9.
The State violated Holiday's Sixth Amendment right to a fair jury trial by
denying his challenge for cause of venireman Kenny Penny.
10.
Holiday asserts ~arious constitutional due process

impropriety of allowing Dr. John DeHaan to testify
not have been accidentally ignited, and asserts
false/misleading in its nature or alternatively,
testimony.
11.
The state trial court violated the due process clause of the
Fourteenth
Amendment when it permitted evidence that Holiday committed the

Applicationfor Reprieve ofExecution of Death
Page 9
claims regarding the

on that the fire could
such testimony was
unreliable scientific
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extraneous offense of raping of Tierra Lynch.

12.
The State violated Holiday's right to remain silent clause of the Fifth
Amendment and the due process clause of the Fourteenth Amendment by
commenting to jurors on Holiday's failure to testify.
13 .
The state trial court violated the due process clause of the
Fourteenth
amendment by permitting a state expert Dr. Gripon to testify that Holiday
would likely commit future acts of violence.
14.
The state trial court violated the cruel and unusual punishment clause of the
Eighth Amendment by permitting a state expert Dr. Gripon to testify that
Holiday would likely commit future acts of violence.
15.
The state court violated the due process clause of the Fourteenth
Amendment, the cruel and unusual punishment clause of the Eighth
Amendment and Skipper v. South Carolina, 476 U.S. 1 (1986), by refusing
to permit Holiday's expert, Carroll Pickett, to explain how the death
penalty would be administered against Holiday if ordered.
16.
to permit Holiday's expert testimony of Carroll Pickett of the effect that
administration of death penalty would have on prison employees required
to cany out the execution of Holiday.
17.
to permit Holiday's expert testimony of Carroll Pickett concerning the
effect of the death penalty on the survivors of the victim.
18.
to permit Holiday's expert testimony of Carroll Pickett to explain how
inmates permitted to serve life sentences often make positive changes in
their lives.

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19.
Amendment by restricting Holiday's cross-examination of Beverly Mitchell
at the punishment phase of trial.
20.
The state court violated the cruel and unusual punishment clause of the
Eighth Amendment by restricting Holiday's cross-examination of Beverly
Mitchell at the punishment phase of trial.
21.
(1988),
The state court violated Franklin v. Lynaugh, 487 {J.S. 164
restricting Holiday's cross-examination of Beverly Mitchell at
punishment phase of trial.
22.
the cruel and

Texas Code of Criminal Procedure article 37.071 violates
because
it
unusual punishment clause of the Eighth Amendment
impermissibly restricts mitigating evidence to merely that evidence which
the jurors might regard as reducing moral blameworthiness .
23.
The trial court violated the Sixth, Eighth and Fourteenth Amendments by
failing to instruct the jury that the "no" vote by a single jury member would
result in a life sentence instead of death, despite the statutory requirement
of IO votes for a "no" answer to article 37.071 2(b)(l) or for a "yes" vote
to article 37.071 2(e).
24.
Texas Code of Criminal Procedure article 37 .071 violates the cruel and
unusual punishment clause of the Eighth Amendment because it fails to
place the burden of proof on the mitigation special issue to the state to
establish a "no" answer, and thereby implicitly assigned the burden of proof
to Holiday.
25.
Texas Code of Criminal Procedure article 37.071 violates Ring v. Arizona

because it fails to require the State to prove beyond a reasonable doubt that
the mitigating evidence is sufficient to warrant a life sentence.
.I
Document: 00513265976
by
the
VI
REQUESTED LENGTH OF DURATION OF REPRIEVE
Obviously, Raphael requests clemency and a transfer from death row to general
population to serve out his sentence. That aside, he requests a thirty-day reprieve.
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VII
REASONS WHY CLEMENCY FOR MR. HOLIDAY IS APPROPRIATE
1.
Raphael's actions were the result of unconstrained emotion and

stupidity, not of deliberate callousness and depravity. He never
intended to harm the children.
Holiday never intentionally or knowingly caused the death of the three children.
The fire was an accident. Raphael Holiday was emotionally hell-bent on scaring Tami,
but he never intended that the three children be harmed. Their deaths were a tragic
accident. There has not been a moment since that tragic day until now that Raphael has
not anguished over his irresponsible actions. To preserve the credibility and deterrence of
capital punishment, the government should reserve its most severe punishment,
execution, for those depraved individuals who calculatingly set out to kill another.
Raphael is not among those. He acted with unconstrained emotion, never reason or logic,
and without thinking out the risks or consequences to the children. While a life sentence
is appropriate, execution is not.
2.
.,
There is substantial doubt - or at least residual doubt -- as to whether

Holiday actually lit the gasoline.
There remains substantial doubt, or at least residual doubt, on a central question:

what mechanism actually ignited the gasoline. This is a question of causation. This is an
important question because the answer determines whether Holiday intentionally or
knowingly started the fire, and whether he actually started the fire .
A. Although there was some evidence that Holiday started the fire,
that evidence is indeterminate.
The night of the incident, Holiday drove to Tami Wilkerson's house; he had taken
with him a screwdriver, a gas can and a pistol. RR 36, p. 51. Holiday was prior to this
event charged with aggravated sexual assault of his step-daughter Tierra Shinea Lynch,
and a protective order prohibited him from being near Tami Wilkerson or the three
children, Tierra, Jasmine Rockell DuPaul, and Holiday's daughter Justice Holiday. RR
39, pp. 92-93. Holiday and Wilkerson spoke on the phone daily, and Holiday was
overheard threatening to kill Tami if "I can't get my kid/' though Holiday stated he was
joking. RR 36, p. 9. Holiday on other occasions threatened to kill Wilkerson; he also
said "he was going to go [to Tami's] and bum the house down and watch her [Tami] run
out." RR 36, pp. 11-12, 37-38.
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Holiday pulled out a pistol and held it to his head stating, "I'm going to make
Tami pay for what she did to me taking my baby away." RR 33, p. 84. Tami ran to a
neighbor's to call 911. Holiday started pouring gasoline he brought with him in the house
and on the cars; he repeated he would make "Tami pay." RR 33, p. 83, 89. A woman
named Beverly Mitchell poured additional gasoline, on Holiday's instruction, in the
bedroom, living room and near the washer and dryer. RR 33, pp. 96-98, 118.
Mitchell saw "Raphael [Holiday] with his foot up on the high chair and he was
saying something, and I don't know what he was saying, and he bent down and the fire
started." RR 33, pp. 97-98. Though Ms. Mitchell did not see a lighter or match in his
hand when Holiday bent down, the fire started "immediately as he reached down." Ms.
Mitchell admitted that during the pretrial hearing she did not remember saying anything
about "seeing Raphael [Holiday] bend down at the time the fire started." RR 38, p. 169.
Holiday was transported to Madison County Jail and during booking, two cigarette
lighters were taken from him and sent to the lab for analysis. RR 34, pp. 95-96. Holiday
had also "suffered some bums" and he was taken to the hospital. RR 34, p. 21.
Dr. Janie McLain, a forensic pathologist, was shown the photographs of Holiday's
bums he sustained in the fire. She said that Holiday's burns were consistent with a
situation where a person "reached down with their right arm and bent down and that the
accelerate ignited." RR 35, pp. 173, 175.
Louis Mitchell testified that Tami's house had three air conditioner units-two
which were approximately thirty-two inches off the floor and one about four feet off the
floor. RR 33, pp. 151-152. The house also had a Dearborn heater which used propane
and had a pilot flame-which he claimed was not on the night of the fire. RR 33, pp.
152-153. There was also a gas stove in the house that had a pilot flame that "should have
been" on. RR 33, p. 153. Also, the refrigerator, water heater, and washer and dryerlocated in the house-were electric. RR 33, p. 153.
Dr. John DeHann, the State's fire expert, said that gasoline vapors have to mix
with air in a process called diffusion, and a flammability range is established by the
process. RR 36, p. 174. He said that gasoline vapors have a very narrow flammability
range. RR 36, pp. 175-176. There can be ignition by "some other source in that room that
is not in the immediate vicinity of where the gasoline is poured" if there is "time for the
vapors" of a sufficient concentration to move either horizontally or upward. RR 36, p.
179.

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Dr. DeHann excluded the water heater, the room heater, the refrigerator, the stove
and air conditioner as potential ignition sources. RR 36, p. 181-183. He eliminated the
stove unit in the northwest comer of the kitchen because the pilot flame was in a closed
compartment, was too high from the floor, and was too far from the areas where the
gasoline was poured. RR 36, pp. 183-184. He eliminated the Dearborn heater on the
west wall-which was near where Holiday was standing-because Louis Mitchell said
the pilot flame was turned off. RR 36, p. 187. He eliminated the refrigerator because
there was not enough .time for the vapors to get into the concealed space where the
ignition source was located. RR 36, p. 189. He said that the "thirty seconds or so" that it
took Ms. Mitchell to pour the gasoline in the house would not be "enough time for the
vapors to spread" and be of "high enough concentration" with any of the ignition sources
in the house. He said that if the time-frame was doubled or tripled his opinion would be
no different. RR 36, p. 195.
B. Other evidence cast doubt on whether Holiday actually lit the fire,
or did so accidentally, not intentionally.
No doubt Holiday was up to no good and attempting to scare Tami. He did not
intend actually to light the gasoline, however; his objective was merely to express anger.
If indeed his assertion is correct --- that he poured gasoline but never intended to light it -- then this tragic episode was an accidental fire but not intentional homicide. Holiday
would be guilty of three counts of manslaughter, offenses predicated on mens rea of
recklessness.
Jim Swindall, an expert in determining the presence of liquid accelerants, said: (1)
he found the "presence of gasoline" on the shoes Holiday was wearing (RR 35, p. 122);
(2) he found no presence of gasoline on Holiday's pants or his shirt (RR 35, p. 123); (3)
he found the presence of gasoline in the debris collected from the laundry room (RR 35,
p.126); (4) he found the presence of gasoline on the debris collected from the kitchen
floor (RR 35, p. 127); (5) the "clothing from the body" found in the living room and the
fire debris under the "couch where the victims were found" were negative for the
presence of gasoline (RR 35, pp. 127-128); (6) the night shirt and pants Beverly Mitchell
was wearing were negative for the presence of gasoline (RR 35, pp. 128-129); and (7)
the two cigarette lighters taken from Holiday at the jail were negative for the presence of
gasoline (RR 35, p. 133).
Judd Clayton --- the fire expert for Holiday --- said the Dearborn heater was the
"number one candidate" as the source of the fire. RR 39, p. 96. He said that during April
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of 2000 there were two days that approached freezing and that there was no "way that
you can determine from the physical condition" of the heater whether its pilot flame was
"on or off at the time of the fire." RR 39, p. 97. If the pilot was off, then it would be
eliminated as a source. The pilot on the stove was the second most likely source of
ignition, followed by the air conditioner, the refrigerator, and lastly the water heater. RR
39, p. 106.
Regarding the distribution of the gasoline vapors, Clayton said what is important
"is how the vapors that emanate from that liquid [the gasoline] mix with the air." RR-39,
p. 107. He said that in a small area-like the house-the "majority of the vapors will be
very rich, that is in excess of the flammable liquids." RR 39, p. 108. The air movement
caused by the air conditioner and the ceiling fan will "stir those vapors up." RR 39, p.
108. According to him, Ms. Mitchell's movement would stir the vapors, and "you reach
an area where you can't predict where you're going to have ignitable mixtures." RR 39,
p. 108. He said that the amount of time it "takes for gas vapors to travel from the area
where it is poured to the possible source of ignition" cannot be accurately predicted. RR
39, p. 109. He was "very confident that the air conditioner was going to have a tendency
to force the gas vapors to the outer extremity of the walls." RR 39, p. 130.
When asked if Clayton found any physical evidence that indicated an intentional
source of ignition he said he saw "no indication of evidence that was recovered at that
scene that would have provided a source of ignition." RR 39, p. 116. He said there was
"ample physical evidence of accidental sources of ignition." RR 39, p. 116. As to the
movement of the gasoline vapors, he said:
I can say that at some point in time an ignitable mixture would envelope the
area surrounding the gas range. I don't know at what point in time. It may
be in five seconds, it may be in a minute and-a-half. But that air will be
circulating and sooner or later the proper mixture is going to happen
because that is a very closed, confined area.
RR 39, p. 133.
Importantly, as to whether the lighters-found on Holiday-could have been a

possible source of ignition, Mr. Clayton said that he did not see any "sooting or
discoloration that would indicate" they were. near any ignitable liquids. He said the
lighters were "perhaps a remote possibility" as an ignition source. He said that he could
not foresee "somebody using one of these lighters to light a fire and then stick it back in
their pocket." RR 39, p. 186.
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The problem in this case is lack of proof of one of the elements of the State's
elements for conviction: causation.
The eyewitness testimony of Ms. Mitchell only established that Holiday bent
down and the fire started. Though she said she was looking at Holiday when the fire
started, she never testified that she saw him actually set the fire. Holiday directed Ms.
Mitchell to pour the gasoline in the house, and at his direction, it was poured away from
the children. Holiday's lighters revealed no presence of gasoline, sooting, or
discoloration. If Holiday had started the fire with one of his lighters, it would have been
reasonable to infer that there should have been some physical evidence to indicate such;
there was none. An accidental ignition of the fire is a more reasonable inference because
Holiday was burned, he dropped his pistol, he left the shotgun in the house, and he was
not near an exit when the fire started. There were at least five potential sources of ignition
in the house. Judd Clayton found no evidence which indicated that the fire was started
intentionally. He said that the time it takes vapors to move through the house cannot be
accurately predicted. Viewing "the evidence in the light most favorable to the
prosecution" no rational jury could have found beyond a reasonable doubt that Holiday
started the fire. Insufficient evidence supports that he intentionally or knowingly did so.
In conclusion, therefore, the weakest aspect of this case is causation. While
Raphael is certainly responsible for severe misconduct, he did not cross the final divide
and intentionally ignite the fire that killed the children. Had another external flame source
set off the fire, Raphael would have raced off with no harm to anyone. Once he regained
his senses and emotions, he likely would have returned to clean up the gasoline and take
care of his responsibilities, as he had done before.
3.
Raphael possesses redeeming and positive characteristics that justify

clemency.
The harshest punishment, execution, should be reserved for the worst of the worst
- depraved individuals without redeeming qualities. Raphael possesses redeeming and
positive characteristics that justify clemency.
His mother, Angella piane Nickerson, explained at trial there were no .

significant problems in the home with Raphael. She raised him in religion,
taking him to church and teaching him to pray. Before his arrest in this case
she made an appointment for him to receive mental health services.

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.i
His step-father, James Nickerson, testified that Raphael never gave him any
trouble.
J.C. Henry, who knew Raphael when he was young, found that he worked
hard and was respectful. He was impressed with Raphael's concern for
Henry's well-being.
Jerry High testified that Raphael obtained his GED quickly while in the
Madison County Jail. Raphael was dedicated and respectful. He attended a
Bible study while in jail.
.j
4.
Sheriff Dan Dauget, Officer Bill Matzke and Deputy Paul Cannon all
testified that Raphael had been a courteous, well-behaved inmate without
disciplinary violations.
Raphael's deplorable physical and psychological abuse at the hands of

those who should have protected him --- his mother and step-father --tells a sad story that goes a long way to explain why he is here. This
abuse --- a circumstance for which Raphael cannot be blamed --- is
worth clemency.
Raphael suffers from mental health problems, all traced to his abusive mother and
step-father. The jurors never heard this evidence. No wonder they could not find any sort
of explanation for Raphael's actions.
A defense forensic psychologist, Dr. Fred Fason, testified that Raphael had
an "unusually mixed profile, with paranoid, passive-aggressive, depressive
and hysterical conversion and dissociative elements." He also demonstrated
severe depression, tension, worrying, irritability, and poor tolerance for
frustration. Fason attributed Raphael's low frustration tolerance level to his
failure to make an adequate transition from childhood to adulthood.
Raphael's method of coping with rejection or frustration was "by regressing
back to an earlier level of development. And then he becomes self-centered,
hostile, and the other things in the report come out."
Janet Wilkerson, the girlfriend of Raphael's uncle, explains that Raphael

was badly treated by his mother and step-father. He was abused violently
by Angella, his mother. He was essentially a household slave. Raphael once
considered suicide when he thought he would have to return home. Raphael
was traumatized by his home experiences. See Attachment 6.
ln the Matter of Raphael Holiday

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Marjorie Minor, Raphael's grandmother, explains that Raphael was born to

a 15-year-old mother who was raped by a married twenty-year-old. She
describes Raphael's sad and dysfunctional upbringing. See Attachment 7.
(Angella and Diane are the same person.)
Michael Blackshear, Raphael's cousin, confirms the abuse by the parents.

See Attachment 8.
Eric James Nickerson, Raphael's half-brother, describes the family's

poverty, lack of food, lack of running water, and that Raphael could barely
read. See Attachment 9.
Had the jury heard this testimony, discovered later after the trial, surely one or
more of the jurors would have found Raphael's abuse as a child in poverty and near
slavery as reasonable justification for sparing his life by answering the sentencing
mitigation question favorable for a life sentence. This Board and the Governor can
correct that error by ordering clemency now.
5.
Raphael's offense occurred during the period when Texas imposed a

40-year minimum sentence for capital murder as the only alternative to
execution. Given Holiday's age, clemency in his case would make him
parole eligible at age 61, an age when his risk level would be sharply
reduced. More likely, however, he would be denied parole and
compelled to serve his entire life in prison. As a practical matter, he
would likely die in prison and will never go free. This is a therefore a
reasonable basis for clemency.
If the Board and Governor grant clemency, Raphael will merely be transferred out
of the death row wing at Polunsky and to the general population there. He will almost
certainly never leave that prison.
Raphael was born July 20, 1979. He is therefore currently 36-years-old. The date
of offense is September 6, 2000, which is also when he was arrested.
He was tried during the period when the Texas capital murder statute imposed a
minimum of 40 years flat time before parole eligibility as the alternative to execution.
Therefore, on a life sentence, he would become eligible for parole September 6, -2040,
when he would be 61.
As a practical matter, it is unlikely that a future Board will parole him, although it
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would have that option. Most likely, a future Board will compel him to remain in prison
and die there. Clemency, therefore, could be a means of merely transferring his execution
from one means to another. This circumstance is therefore a reasonable basis for granting
clemency.
I
I
6.
As a simple matter of dollars and cents, capital punishment in Texas

costs the taxpayers far more than they receive in reduction of crime, or
any advancement of public interests in achieving justice for victims.
The Board may wish to consider the financial benefits to a life sentence
as a justification for clemency.
Capital punishment is expensive. Add up the costs of a trial lasting months, and
defense lawyers, prosecutors and experts at each stage of the state and federal litigation
process, and the taxpayers are on the hook for hundreds of thousands of dollars for each
execution.
Well-regarded scholar Gretchen Sween (intermittent adjunct professor at the
University of Texas Law School), writes:
Texas is a conservative bastion by most objective measures. Yet the state
continues to spend enormous sums executing what may be a large number
of people relative to other states but is still a handful compared to its
general population. Since at least 1997, the public has had constructive
notice that each execution costs Texas taxpayers about three times as much
as incarcerating someone for life. Yet Texas has been willing to spend
those sums even as many of its citizens' basic needs - healthcare, education,
better job opportunities - go unmet.
Gretchen Sween, Texas Ain 't Tuscany: How a Truism Might Further
Invigorate Contemporary 'Cost Arguments ' for Death-Penalty Abolition,
41 AM. J. CRIM. L. 151, 162 (Spring 2014) (citations and footnotes
omitted).
Dr. Sween's article is attached. See Attachment 20.
We recognize that Raph~el is now at the end of the litigation process and that the
money has been spent. Nevertheless, granting clemency would be an important statement
of public policy that the costs of execution exceed the benefits, and that more inmates
should be sentenced to prison for life rather than executed. Cost, therefore, is an
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appropriate justification for granting clemency.
VIII
STATEMENT OF EFFECT OF PRISONER'S
CRIME UPON VICTIMS' FAMILIES
It is not possible to address the impact of this crime on the family of the children
killed. Neither Raphael nor his attorneys have had any communication with them.
There is no doubt, however, that the murder of these children devastated their
family. All of them are surely suffering pain that will never heal.
CONCLUSION
Raphael Holiday would be an appropriate candidate for clemency.

Respectfully submitted this zgst day of October, 2015,
Seth Kretzer
Law Offices of Seth Kretzer
440 Louisiana Street, Suite 200
Houston, TX 77002
seth@kretzerfirm.com
LEAD COUN,SEL
(903) 597-6622
(866) 398-6883 (fax)
(713) 775-3050
(713) 224-2815 (fax)
COURT-APPOINTED ATTORNEYS FOR PETITIONER, RAPHAEL HOLIDAY

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this pleading has been delivered this
28 day of October 2015 to:
The Texas Board of Pardons and Paroles
Via Email: bpp_clemency@tdcj.texas.gov
Also via fax: 512-467-0945
Also via Federal Express to:
The Texas Board of Pardons and Paroles
ATTN: Clemency Section, Javid
8610 Shoal Creek Blvd
Austin, TX 78757
Ms. Fredericka Sargent
Office of the Attorney General for the State Capital Litigation Division
P.O. Box 12548, Capitol Station
Austin, TX 78711-2548
(512) 936-1600 (voice)
(512) 320-8132 (fax)
Fredericka. Sargent@texasattorneygeneral.gov
Mr. Raphael Deon Holiday
Inmate No. 999419
Polunsky Unit
3872 F.M. 350 South
Livingston, TX 77351
by the following means:
Delivery to Mr. Holiday by hand-delivery on Oct. 30.

~n;.9'r~e"'
SETH KRETZER
Jn the Matter of Raphael Holiday

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ATTACHMENT 1
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------
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Race: B
Age: 20
vs.
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RAPHAEL DEON HOLIDAY
DL#
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DOB: 7120/79
WT!l70
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TDCJ#:
Agency:
Agency No.:
WARRANT:
OFFENSE:
--- --
PRECEPT:
------
Capital Murder
See.19.&3
*****************************************t*~****fr******~*********************
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS

The Grand Jury of MADISON COUNTY, Texas. duly organized at the JULY, term,
AD. 2000 of the 1tn/2781h District Court of said County and State, present to said court at said
term, that RAPHAEL DEON HOLIDAY, hereinafter refened to as the defendant, on or about
the 6t\ day of September, A. D. 2000 and before the presentment of this indictment. in said
County and State did then and there intentionally or knowingly cause the death of an individual,
namely, Tierra Sbinea Lynch, by bwning said individual with fire. and did then and there
intentionally or knowingly cause the death of a second individual, namely, Jasmine Rockell
Dupaul, by burning said second individual with fire, and did then and there intentionally or
knowingly ause the death of a third individual, namely, Justice Nichole Holiday, by burning
said third individual with fire and all murders were committed during the same criminal
transaction.
AGAINST THE PEACE AND DIGNITY OF THE STATE,
.1
....
~~~
1 ~ 0FTHEGRANDJURY
2
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----------
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T~ STATE OF TEXAS
vs.
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Sex:M
DOB:7n0/79
WT:l70
Eyes: BRN
TDCJ#:
Agency:
Agency No.:
-----
WARRANT:
OFFENSE:
PRECEPT:
------
Capital Murder
See.19.D3
***********************************************************************.***
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS
The Grand Jury of MADISON COUNTY, Texas, duly organized at the- JULY term,
A.O. 2000 of the 12111/278m Distnct Court of said Cowity and State, present to said court at said
term, that RAPHAEL DEON HOLIDAY, hereinafter referred to as the defendant, on or about
the 6111 day of September, A. D. 2000 and before the presentment of this indictment. in said
...
County and State did then and there intenti-OnaJly or knowingly cause the death of an individual,
namely, Jasmine R0kell Dupaul, by. burning said individual with fire, and the said Jasmine
RockeJl Dupaul was then and there an individual younger than six years of age.
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Case: 15-70035
Document: 00513265976
Page: 58

------
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vs.
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Sex:: M
DOB: 7nOJ79
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Eyes: BRN
Agency No.:
WARRANT:
PRECEPT:
-----
OFFENSE:
------
Capital Murder
See.19.03
*****************************************************************************
IN THE NAME AND BY THE AUI'HORITY OF THE STATE OF TEXAS
The Grand Jury of MADISON COUNTY, Texas, duly organized at the JULY term,
. I
AD. 2000 of the 12th/278dt District Court of said Cowtty and State, present to said court at said
term, that RAPHAEL DEON HOLIDAY, hereinafter referred to as the defendant, on or about
:~
jl.I
the
6TH
day of September, A. D. 2000 and before the presentment of this indictment, in said
County and State did then and there intentionally or knowingly cause the death of an individual,
namely, Justice Nichole Holiday, by .burning said individual with fire, and the said Justice
Nichole Holiday was then and there an individual younger than six years of age.
II
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ATTACHMENT .2
Case: 15-70035
Document: 00513265976
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NO. 10425
-I
TIIE STA1E OF lEXAS
vs.
MADISON COUNTY, TEXAS
278TII RJDICIAL DISTRICT
JUDGMENT AND SENTENCE OF DEAffiPRIORTO APPEAL

On
the
day of
indicted in the above nwnbered and
entitle;
2002, the defi:mlant having beeo

for the felony oft"ense of CAPITAL MURDER, this
cause was called for trial. The State appeared by her Criminal District Attorney, William C. Bennett.
Jr., and Assistant Criminal District Attorneys, Laura Popps and Mac Cobb, and the Defendant,
RAPHAEL DEON HOLIDAY, appeared in open court, his
counsel. William F.
Carter and Frank
Blazek, also being present. The said defendant having been duly maisDed. entered a plea of NOT
Gun.TY to the charge contained in the indictment. Themipon, a jwy composed of twelve jurors
having been selected, impaneled and sworn, who, having heard the indictment read, the defendant's
plea of not guilty thereto, and havUtg heard the evidence submitted, and having been duly dJarged by
the Court, and having heaid the arguments of counsel, retired in charge of the proper officer to
consider their verdict as to the guilt of the defendant, and afterward on the 13 day of June, 2002,
were brought into open Court by the proper officer, the defendant and the defendant's counsel being
present, and in due form of law returned the following verdict, which was received by the Court, and is
here now entered upon the minutes ofthe Court:
"We, the jwy, find the defendant, RAPHAEL DEON HOLIDAY, guilty of capital murder, as
charged in the indictment."
Signed:
Roser Manis
PRESIDING JUROR
Thereupon, the jury, composed of Roger Morris and eleven others in accordance with the Jaw,
was called back into the box and heard the evidence relative to the que.,tion of punishment and having
been again clmged by the Comt and having heard the argnrnc:ms of counsel, the jwy retired in charge
of the proper officer to consider~ question of punishment, and reaumed into open Court on the 20*
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.e
THE STATE OF TEXAS VS.
CAUSE NO.
PAGE 2
day of June, 2002, the following verdict, which was received by the Court and is here now entered of
record upon the minutes:
SPECIAL ISSUE NO. 1

Is there a probability that the defendant, RAPHAEL DEON HOLIDAY, would commit
criminal acts of violenc.e that would constitute a continuing threat to society?
ANSWER
We, the jmy, unanimously find and determine beyond a reasonable doubt that the answer to
this Special Issue is "Yes".
Signed: Roger Morris
PRESIDING JUROR
'i
SPEQAL ISSUE NO. 2

Taking into consideration all of the evidence, including the ciramJstances of the
offense, the defendant's cbaracter and background, and the personal moral culpability of the
defendant, do you find that there is sufficient mitigating clrannstance or cirannstances to
warrant that a sentence oflife imprisonment rather than death sentence be imposed?
ANSWER
We, the jury, unanimously find and determine that the answer to this Special Issue is "No".
Signed: Roger Monis
PRESIDING JUROR
VERDICT
We, the Jwy, return in open court. the above answers as our answers to the Special
Ismes submitted to us, and the same is our verdict in 1his case.
Signed: Roger Mouis
PRESIDING JUROR
t/u
19
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e c.
CAUSE NO.
PAGE 3
Thereupon, in accordance with Tex:. Code Crim. Proc. Art. 37.071, it is ORDERED,
ADJUDGED AND DECREED by the Comt that the defendant, RAPHAEL DEON HOLIDAY, is
guilty ofthe offense of CAPITAL MURDER, committed on the 6th day of September, 2000, as found
by the jwy, and the jwy having further answered that there is probability that the defendant would
conunit aiminal acts of violence that would coDStitute a contimaing threat to society, and that taking
into consideration all of the evidence, including the cimamst,ancm of the offense, the defendant's
character and background, and moral culpability ofthe defendant, that there is not sufficient mitigating
circumstance or circumstances to
wammt
that a sentence of lite imprisonment rather than a death
sentence be imposed; and the Jaw providing that on sudi jury finding the Court shall assess the
DEATII PENALTY to the defendant.
It is therefure, the Order of the Comt that 1he derendant be punished by having the death
penalty~ against him.
Thereafter, on the 20th day of June, 2002, the cause was c::aJled fbr the purposes of
pronouncing sentence. The Defendant, RAPHAEL DEON HOLIDAY, and the defendant's counsel,
William F. Carter and Frank BJuek, personally appeaml. The S1ate appeared by and through her
.!
Criminal District Attorney, William C. Bennett, Jr. and Assistant Criminal District Attorneys, Laura
Popps and Mac Cobb. Thereupon the defendant, RAPHAEL DEON HOLIDAY, was asked by the
Court whether he had anything to say why said sentence should not be pronounced against him and be
answered nothing in bar thereo( whereupon the Court proceeded, in the prese:occ of said Defendant,
RAPHAEL DEON HOLIDAY, to pronounce senteoce .mst him as fullows:

Whereas, the Defendant bas been adjudged to be guilty of Capital Murder by the jury and the
jury having further answered that there is a probability that the De&mdant would ClOllUDit aDninal acts
of violence that would constitUte a continuing threat to society, and that 1aking into consideration an
ofthe evidence, including the cira.unstances ofthe offense, the defendant's ~and baclcgrouod,
and the moral c:ulpability of the defendant, that there is not sufficient mitigaing circnmstaQM or
circumstances to wamutt that a seotence of lite imprisonmatt rather than a death sentence be
imposed, and the law providing that OD such jury finding the Court shall senlellce the Deftwlant to
death.
It is, therefore., the ORDER of the Com1 that~ is seotenced to DEA1H; but the
20
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CAUSE NO.
PAGE 4
Jaw further providing for an automatic appeal to the Court ofCriminal Appeals ofthe State ofTexas,
the sentence is suspended until the decision of the Court of Criminal Appeals bas been received by the
Court.
The defendant is now remanded to the aJStody ofthe SheriffofMadison County, Texas, to be
transported to the Institutional Division of the Teicas Department of' Criminal Justice at Huntsville,
Texas, there to await the action of the Court of Criminal Appeals and the further orders of this
Court.
SIGNED thi\.2a._dayof ~
.2002.
21
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ATTACHMENT 3 .
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CAUSE NO. l0423 , 10425, 10427

THE STATE OF TEXAS
IN THE DISTRICT COURT
vs.
MADISON COUNY, TEXAS
278m JUDICIAL DISTRICT
DE ATH WARRANT
To the Director of the Institutional Division - Texas Department of Criminal Justice, or in case of his death,
disability or absence, the Warden of the Huntsville Unit of the Institutional Unit - Texas Department of
Criminal Justice or in the event of the death or disability or absence of both the Director of the Institutional
Division - Texas Department of Criminal Justice and the Warden of the Institutional Division - Texas
Department of Criminal Justice, to such person appointed by the Board of Directors of the Institutional
Division - Texas Department of Criminal Justice, Greetings:
, A.D. 20!}1., in the 278 1h Judicial Court of
Whereas, on the 1.3._th day of (} Uqt. A
Madison County, Texas RAPHAEL DEON HOLIDAY was duly and legally convicted of the crime of
CAPITAL MURDER, as fully appears in the judgment of said court entered upon the minutes of said
court, as follows, to-wit: Judgment attached and,
Whereas on the l.Y_th day of
fJ.n.,d
, A.D. 20.JS, the said court pronounced
sentence upon the said RAPHAEL DEON HOLIDAY, in accordance with said judgment and sentence,
fixing the time for the execution of the said RAPHAEL DEON HOLIDAY for anytime after the hour of
6:00pm on the lLth day
of~avemlutL
A.D. 20..J:i, as fully appears in the sentence of the
Court and entered upon the minutes of said Court as follows, to wit: Sentence attached.
These are therefore to command you to execute the aforesaid judgment and sentence any time
after the hour of 6:00 p.m. on the LR__th day
of'il. IJvenr./Jvu, A.D.
20..lS., by intravenous
injection of substance or substances in a lethal quantity sufficient to cause death until the said RAPHAEL
DEON HOLIDAY is dead.
Herein fail not, and due return make hereof in accordance with the law.
Witness my signature and seal of office on this the .1.Y_th day of
/JJ11'-"Jf.", A.O., 201S._.
Issued under my hand and seal of Office in the City of Madisonville, Madison .County, Texas, this
/!:i_th
dayof{).J;~t
,A.D. 20.JS.
Q~tlii Sew~
RHONDA SAVAGE, CL~ OF

THE DISTRICT COURTS OF
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CAUSE NO. 10423, 10425, 10427

THE STATE OF TEXAS
vs.
MADISON COUNY, TEXAS
278TH JUDICIAL DISTRICT
On this
/~ay of
au wud-
ORDER
, A.D. 2015, came on to be heard the Motion to Set
the Execution Date for RAPHAEL DEON HOLIDAY, by The State of Texas by and through the Criminal
District Attorney, Brian Risinger, and the court having considered the same find the Motion to Set Date of
Execution for RAPHAEL DEON HOLIDAY be granted.
IT IS ORDERED that the prisoner RAPHAEL DEON HOLIDAY, who has been adjudicated
guilty of Capital Murder as charged in the indictment and whose punishment has been assessed by the
verdict of the jury and the judgment of the court at death, shall be kept by the Director of the Institutional
Division of the Texas Department of Criminal Justice at Huntsville, Texas until the / !~ay of
,. A.D. 20 / 5
upon which day, at the Institutional Division of the Texas
Department of Criminal Justice at Huntsville, Texas at any time after 6:00p.m. in a room arranged for the
purpose of execution, the Director, acting as provided by law, is commanded to carry out this sentence of
death by intravenous injection of a substance or substances in a lethal quantity sufficient to cause the death
of RAPHAEL DEON HOLIDAY and until RAPHAEL DEON HOLIDAY is dead, such procedure to be
determined and supervised by the Director of the Institutional Division of the Texas Department of
Criminal Justice.
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The Clerk of this Court shall, within ten days after the Court enters this Order Setting Execution, issue and
deliver to the Sheriff of Madison County, Texas, a certified copy of this Order along with a Death Warrant
in accordance with Tex. Code Crim. Proc. Art. 43.15. The Death Warrant shall recite (1) the fact of
conviction, (2) set for the specific offense, (3) the judgment of the Court, and (4) the time fixed for
execution. The Death Warrant shall be directed to the Director of the Institutional Division of the Texas
I
I
Department of Criminal Justice at Huntsville, Texas, and command the Director to proceed to put into
execution the judgment of death against RAPHAEL DEON HOLIDAY.
The Sheriff of Madison County, Texas, is hereby ORDERED upon receipt of the Death Warrant, to
deliver the Death Warrant and a certified copy of this Order to the Director of the Institutional Division of
the Texas Department of Criminal Justice, Huntsville, Texas.
278111 Judicial District Court

Madison County
\Alo..CW.11.iA~.....ill*~.-.ertc
Court
MADISON COUNlY, TEXAS
_ _ _ _ _ _ Deputy
121h / 278111 Judicial DI
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ATTACHMENT 4
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CAUSE NO. 10425
..!
THE STATE OF TEXAS
vs.
OF MADISON COUNTY
278 JUDICIAL DISTRICT
LADIES AND GENTI.EMEN OF THE JURY:

The defendant, Raphael Deon Holiday, stands charged by indictment with the offense of capital
murder, alleged to have been committed on or about the 6 111 day of September, AD. 2000, in Madison
County, Texas. The defendant has pleaded not guilty.
1.
A person commits the offense of murder when he intentionally or knowingly causes the death of an
individual.
A person conunits the offense of capital ll1UJ'der if he intentionally or knowingly lllUfders an individual
younger than six years of age.
...
2.
A person acts intentionally, or with intent, with respect to a result of his conduct when it is his
conscious objective or desire to cause the result.
I
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A person acts lmowingly, or with knowledge, with respect to a result of his conduct when he is aware
that his conduct is reasonably certain to cause the result
A person acts recldmsly, or is reckle$, With respect to cimJmstaDces surrounding his conduct or the
result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk
that the circumstances exist or the resuJt will occur. The risk must be of such a nature and degree that
its disregard constitutes a gross deviation from the standard of care that an ordinary person would
exercise wider all circumstances as viewed ftom the actor's standpoint.
3.
You are ir,Jstructed that you may consider all relevant mas and ciraunstanoes swrounding the death. if
any, and the previous relationship existing between the BCalSed and the deceased, together with all
relevant facts and circumstances going to show the condition of the mind of the accused at the time of
the offense. if any.
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4.
You are instructed that if there is any testimony befure you in this case regarding the defendant's
having committed otre:osr-s other than the ofiense alleged against him in the indiCIDlmt in this case, you
may consider said testimony only in detennining the intent or ~e, if any, in co1D1ection with the
offense, if any, alleged against him in the indictment in this case, and fur no other purpose.
s.
A person is criminally respoDSible if the result would not have occurred but for bis conduct, operating
either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to
produce the remJt and the conduct of the defendant clearly insufficient.
6.
Now, if you find from the evidence beyond a reasonable doubt that on or about the f1i day of
September, AD. 2000, in Madison Cowny, Texas, the defen~ Raphael Deon HoHday, did then and
there intentionally or knowingly cause the death of an individual, namely, Jasmine Rockell Dupaul. by
burning said individual with fire, and the said Jasmine Rockell DupauJ was then and there an individual
younger than six years of age, then you will find the defendant guilty of capital nwrder as charged in
the indictment.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereo( you will
acquit the defendant of capital mmder and proceed to consider whether the derendant is~ of the
lesser included offense ofmurder.
7.
I
.I
In this regard you shall use the instructions and definition previously given in regard to the offense of
.1
capital murder.
In this regard, you are further instructed that a person commits the offense of murder if he coumlits a
felony, and in the course of and in furtherance of the commission or attempt, or in immediate flight
from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human
life that causes the death of an individual You are further instructed that arson is a felony.
A peison commits the ofreose of arson if the person starts a fire or causes an explosion with intent to
destroy or damage any building. habitation or vehicle, knowing that it is located on property belonging
to another or knowing that it bas .located within it property belonging to another, or when tile pmon is
reckless about whether the burning or explosion will endanger the lite of some individual or the safety
of the property of another.
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In this regard you are further instructed that "Habitation" means a structure or vehicle that is adapted
for the overnight accommodation of persons and includes each separately secured or occupied portion
of the structure or vehicle and each structure appmtenant to or connected with the sttudlD"e or vehicle.
"Building" means any structure or enclosure intended for use or ocaipation as a habitation or fur some
purpose of trade, manufilcture, omameat, or use. "Property" means real property, tangible or
intanglole personal property, including anything severed ftom land, or a document, including money,
that represents or embodies anything of value. "Vehicle" includes any device in, on or by which any
person or property is or may be propelled, moved, or drawn in qie nonnal course of conunerce or
transportation.
Now, if you find from the evidence beyond a reasonable doubt that on or about the 6" day of
Septembec, AD. 2000, in Madison County, Texas, the defeodaot, Raphael Deon Holiday, did then and
there commit or attempted to colDIDit a felony, to-wit: arson, or while in the course of and in
furtherance ofthe commission or attempt, or in the immediate flight
the commission or attempt of
said felony, the said Raphael Deon Holiday intentionally or knowingly committed or attempted to
commit an act clearly dangerous to human life, namely ca:using gasoline to be poured or igniting the
gasoline within the building occupied by the said Jasmine Rockell Dupaul, that c.aused the death of
Jasmine Rockell Dupaul, then you will find the defendant, Raphael Deon HoliclaY guilty of the offense
ofmurder.
from
You are fi.uther instructed that if you believe from the evidence beyond a reasonable doubt that the
defendant is guilty of capital murder or ODJider but you have reasonable doubt as to which then you
will find the defendant guilty of murder.
Unless you so find beyond a reasonable doubt. or if you have a nmsonable doubt thereo~ you will
acquit the defendant of capital murder and murder and proceed to coosider whether the defendant is
guilty of the lesser included offense of arson. You will use the instructions and definitions previously
given.
8.
Now. if you find from the evidence beyond a reasonable doubt that on or about the 6th day of
September, A.D. 2000, in Madison County, Texas, the defendant, Raphael Deon Holiday, did then and
there start a fire with the intent to destroy said habitation of Tammy Wilkason, the owner thereof: and
said defendant then and there knew that said habitation was located on property belonging to another,
and by reason ofthe commission of said offense by Raphael Deon Holiday and as a direct result ofsaid
fire and accompanying smoke, death was suffered by Jasmine Rockdl Dupaul. then you will find the
defendant. Raphael Deon Holiday guilty ofthe offense ofarson.
Unless you so find beyond a reasonable doubt, or ifyou have a reasonable doubt thereof: then you will
find the defendant not guilty.
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9.
Our law provides that a defendant may testify in bis own bebalfifhe elects to do so. This. however, is a
privilege accorded a defendant, and in the event he dects not to temfy, that :&ct cannot be taken as a
circumstance against him In this case, the defendant bas elected oat to testify, and you are instructed
that you cannot and must not refer or allude to that :&ct 1hroughout your deliberations or take it into
consideration for any p.upose whatsoever as a cin::umstance against the defendant
10.
A grand jury indictment is the means whereby a defmdaot is brought to trial in a telony prosecution. It
is not evidence of guilt nor can it be considen:d by you in passing upon the issue of guilt of the
defendant. The burden of proof in all criminal cases rests upon the State throughout the trial, and
never shifts to the defendant.
All persons are presumed to be innocent and no person may be convicted of an offense unless each
element of the offense is proved beyond a reasonable doubt. The &Ct that be bas been arrested,
confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his
trial. Jn case you have a reasonable doubt as to defendant's guilt after considering all the evidence
before you, and these instructions, you will acquit him and say by your verdict "Not Guilty.
The prosecution bas the burden of proving the deftindant guilty and it must do so by proving each and
every element of the oifeme dmrged beyond a iasonable doubt and, if it mils to do so, you must
acquit the defendant.
In the event you have a reasonable doubt as to the defendant's guilt after considering all the evidence
before you, and these instructions, you will acquit him and say by your verdict "Not Guilty."
You are the exclusive judges of the filcts proved, of the CRdbility ofthe ~ and the weight to
be given their testimony, but you must be governed by the law you shall receive in these written
instructions.
I
After you retire to the jwy room, you should select one of your members as your Foreman. It is his
duty to preside at your debberations, vote with you, and, when you have nnanhnously a.geed upon a
verdict, to certify your verdict by using the appropriate fonn attached hereto, and signing the same as
Foreman.
No one has any authority to communicate with you except the officer who has you in charge. During
your deh'berations in this case, you must not consiM, disaJSS, nor reJate any matters not in evidence
befure you. You should not consider nor mention any personal Jmowledge or infomJation you may
have about any &ct or person cmmected with this case which is not shown by the evidence.
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After you have retired, you may communicate with this court in writing through the officer who bas
you in charge. Do not attempt to talk to the officer who bas you in charge, or the attomeyS, or the
cowt, or anyone the conc:eming any question you may have. After you have reached a unanhnc>us
verdict, the Foranan will certify thereto by filling in the appropriate fonn attached to this clwge and
signing bis name as Foreman. You may now retire to consider your verdict
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VERDICT FORM
We the jwy find ftom the evidence, beyond a reasonabJe doubt, that the defendant, Raphael Deon
Holiday, is guilty of CAPrrAL MURDER as dwged in the indictment
We tbe jury find from the evidence, beyond a reasonable doubt, that the defendant, Raphael Deon
Holiday, is guilty ofthe 9fiCose ofMURDER.
Foreman
We the jmy find from the evidence, beyond a reasonable doubt. that the defimdant, Raphael Deon
Holiday, is guilty ofthe o1fense ofABSON.
Foreman
We the jmy find the de:ft:sdant, Raphael Deon Holiday, is not guilty.
:..
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ATTACHMENT 5
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CAUSE NO. 10425

THE STA TE OF TEXAS
IN THE DISTRICT COURT OF
vs.
COURTS CHARGE ON PUNISHMENT
LADIES AND GENTLEMEN OF THE JURY:
'
By your verdict returned in this case you have found the defendant, Raphael Deon Holiday
guilty of the offense of Capital Murder, which was alleged to have been committed in Madison
County, Texas on or about the 6th day of September 2000. It is necessmy, now, for you to determine
from all the evidence in the case, answers to certain questions called "Special Issues" in this charge.
The Court instructs you further, however, as follows:
I.
The mandatory punishment for capital murder is death or confinement in the penitentiary for
life.
In determining your answers to the questions, or special issues, submitted to you, you shall
consider all the evidence submitted to you in this whole trial, which includes that phase of the trial
wherein you were called upon to determine the guilt or innocence of the defendant, and this
punishment phase of the trial wherein you are now called upon to determine the answers to Special
Issues submitted to you by the Court.
You shall consider all evidence submitted to you during the whole trial as to the defendant's
background or character or the circ~ces of the offense that militates for or mitigates against
imposition of the death. penalty.
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You are instructed that when you deh"berate on the questions posed in the special issues, you
'
are to consider all relevant mitigating circumstances, ifany, supported by the evidence presented in
both phases ofthe trial, whether presented by the State or the defendant. A mitigating circumstance
may include, but is not limited to, any aspect of the defendant's character, background, record,
emotional instability, intelligence or circumstances ofthe crime which you believe could make a death
sentence inappropriate in this case. Jf you find that there are any mitigating circumstances in this
case, you must decide bow much weight they deserve, if any, and thereafter, give effect and
consideration to them in assessing the defendant's personal moral culpability at the time you answer
the special issue. Ifyou determine, when giving effect to the mitigating evidence, if any, that a life
sentence, as reflected by an affirmative finding to special issue number two, rather than a death
sentence, is an appr~priate response to the personal moral culpability ofthe defendant, an affirmative
finding should be given to special issue number two.
You are further instructed that you are not to be swayed by mere sentiment, conjecture,
passion, prejudice, public opinion or public feeling in
~sidering all
the evidence before you in
answering the special issues.
n.
You are further instructed that ifthere is any testimony before you in this case regarding the
defendant's having committed offenses other than the offense alleged against him in this indictment,
you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable
doubt that the defendant committed such other offenses, ifany were committed. and even then you
may only consider the same in detennining the answers to the special issues.
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m.
Our law provides that a Defendant may testify in his own behalf if he elects to do so. This,
however, is a privilege accorded a Defendant, and in the event he el~ not to testify, that tact cannot
be taken as a circumstance against him. In this case, the Defendant has elected not to testify, ml you
are instructed that you cannot and must not refer or allude to that filct throughout your deliberations
or take it into consideration for any purpose whatsoever as a circumstance against the Defendant.
Should any member of the Jury improperly comment on the Defendant's failure to testify, it is the
duty of the other jurors to instruct the offending juror to cease such comments and remind the
offending juror that such discussion is improper and the Defendant's fililure to testify cannot betaken
into consideration for any purpose whatsoever as a circumstance against the Def~dant.
IV.
You are instructed that under the law applicable in this case, a prisoner serving a life sentence
for the offense of capital murder is not eligible for release on parole until the actual calendar time the
prisoner has served. without consideration of good time, equals forty (40) years. During your
deliberations, you are not to consider or discuss the poSStble action of the Board of Pardons and
Paroles or the Governor, nor how long the Defendant would be required to serve to satisfy a sentence
of life imprisonment, nor how the parole laws would be applied to this Defendant after the expiration
of forty (40) years. Eligibility for parole does not guarantee that parole will be granted.
v.
You have been pennitted to take notes during the testimony in this case. In the event any of
you took notes, you may rely on your notes during your deliberations. However, you may not share
your notes with the other jurors and you should not permit the other jurors to share their notes with
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you. You may, however, discuss the contents ofyour notes with the other jurors. You shall not use
your notes as authority to persuade your fellow jurors. In your deh"berations, give no more and no
less weight to the views of a fellow juror just because that juror did or did not take notes. Your notes
are not official transcripts. They are personal memory aids, just like the notes of the judge and the
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notes of the lawyers. Notes are valuable as a stimulant to your memory. On the other band, you
might make an error in observing or you might make a mistake in recording what you have seen or
heard. Therefore, you are not to use your notes as authority to persuade fellow jurors of what the
evidence was during the trial.

Occasionally, duringjwy deliberations, a dispute arises as to the testimony presented. Ifthis
should occur in this case, you shall inform the Court and request that the Court read the portion of
disputed testimony to you from the official transcript. You shall not rely on your notes to resolve the
dispute because those notes, if any, are not official transcripts. The dispute must be settled by the
official transcript, for it is the official transcript, rather than any juror's notes, upon which you must
base your determination of the acts and, ultimately, your verdict in this case.
VI.
During your deh"berations upon the following special issues, you must not consider, discuss,
nor relate any matters not in evidence before you. You should not consider nor mention any personal
knowledge or information you may have about any filct or person connected with this case, which is
not shown by the evidence.
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e (.
ec;
You are the exclusive judges ofthe tacts proved and the credibility ofthe witnesses and the
weight to be given to their testimony, but you are bound to receive the law from the Court, which has
been given you, and you are bound thereby.

SIGNED this _ _ day of _ _ _ _ _ _ ____, 2002.
JUDGE PRESIDING
21s ruDICIAL DISTRICT COURT
s
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CAUSE NO. 10425

THE STATE OF TEXAS
IN THE DISTRICT COURT OF
vs.
COUNTY, TEXAS
SPECIAL ISSUES VERDICT FORMS
The- burden of proof of Special Issue No. 1 rests upon the State and it must prove the
affirmative of such issue beyond a reasonable doubt.

You are instructed that you may not answer Special Issue No. 1 "Yes" unless alljurors agree
to such ans\ver. Further, the jury may not answer Special Issue No. 1 "No" unless ten (10) or more
jurors agree. It is not necessary that members ofthe jwy agree on what particuJar evidence supports
a negative answer, that is, an answer of "No," to Special Issue No. 1.
Special Issue No. 1, with fonns for answers, is as follows:

SPECIAL JSSUE NO. 1
Is there a probability that the defendant, Raphael Deon Holiday, would commit criminal acts
of violence that would constitute a continuing threat to society?
ANSWER
We, the jury, unanimously find and determine beyond a reasonable doubt that the answer to
Special Issue No. 1 is 11 Yes."
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We, the jury, because at least ten (10) jurors have a reasonable doubt as to the probability that
the defendant would commit criminal acts of violence that would constitute a continuing threat to
society, detennine that the answer to this Special Issue No. 1 is "No."
PRESIDING JUROR
In the event the jury is unable to agree upon an answer to Special Issue No. 1 under the
conditions and instructions outlined above, the Foreperson will not sign either form ofanswer to the
Special Issue, but will infonn the Court that the Jury is unable to agree upon an answer to Special
Issue No. 1.
If you have answered the foregoing Special Issue No. 1 "Yes," then you will answer the
following Special Issue No. 2 below:

You will answer Special Issue No. 2 "Yes" or "No."
You may not answer Special Issue No. 2 "No" unless all jurors agree to such answer and you
may not answer, "Yes" unless ten (10) or more jurors agree to such answer.
SPECIAL ISSUE NO. 2
Taking into consideration all ofthe evidence, including the circumstances ofthe offense, the
defendant's character and background, and the personal moral culpability ofthe defendant, do you
find that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of
life imprisonment rather than a death sentence be imposed? You are instructed that the tenn
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"mitigating evidence" or "mitigating circumstances" means evidence that a juror might regard as
reducing the defendant's moral blameworthiness.
The jury need not agree on what particular evidence support an affirmative finding on this
Special Issue.
i
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ANSWER
We, the jury, unanimously find and detennine that the answer to Special Issue No. 2 is "No."
We, the jury, because at least ten (10) jurors find that there is sufficient mitigating
circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death
sentence be imposed, answer Special Issue No. 2 "Yes."
PRESIDING JUROR
In the event the jwy is unable to agree upon an answer to Special Issue No. 2 under the
conditions and instructions outliiled above, the Foreperson will not sign either form ofanswer to the
Special Issue, but will infurm the Court that the Jury is unable to agree upon an answer to Special
Issue No. 2.
8
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VERDICT
We, the jwy, return in open court the above answers to the Special Issues submitted to us,
and the same is our verdict in this case.
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ATTACHMENT 6
Case: 15-70035
Stllte of Texiu
County ofMontgomery
Document: 00513265976
Page: 86
Affidavit of Janette Wilkerson

My name.is Janette Hardy Wilkerson. I am over the age of eighteen. I have first-hand
.
knowledge of the &cts in this affidavit.
Raphael Deon Holiday spent many days in my house as he was growing up. I dated his
uncle Eddie Nickerson. 1 knew his family well.

Life was so hard on Raphael. He never had a chance to live. He never had one.
I used to bring Raphael to my house as often as I could, because of the way his family
treated him. Often Diane and James would not let Raphael go down to my house without his
brothers going also.
Raphael was his mom's punching bag. I remember oa.e time after my son spent the night
with Rap~eJ's fiunily, my son told me Diane woke him up by hitting him with board. When my
son popped out from under the blanket, she apologized and said she was 'trying to hit that
motherfucker there,' and pointed at RaphaeJ. Diane was angry that Raphael had not got up to
warm the house and make his brother's breakfast before she got up. I remember Diane beating on
Raphael because he let the baby spill something one time. Raphael was punished for everything
and responsible for everything. I remember Diane and James whooping Raphael with sticks or a
belt then making him pray to God that his wounds would heal ?Y Monday so he could go to
school. Both Diane and James whooped Raphael all the time. As Raphael got bigger, James
would even get bis dad to come over to help beat Raphael. I remember James hitting Raphael, and
Raphael asking 'why are you hitting me?' James told Raphael 'because you ai.nt mine and you got
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no business being here.' On a cliffi:rent day, Raphael was visiting me and told me that he thought
'Boo' [James] was going to kill him one diy anyway. Raphael told me, that day, and many times
"don't nobody care about me anyway."
Raphael had to wait on his brothers, hand and foot. He had to do all of the cooking, .
cleaning, getting the fire ready, dressing them. catering to them. Diane got in his face and he
would get a whooping when he wouldn't wait on the brothers. Diane even kept Raphael out of
school to babysit Tarver or Chase when they couldn't go to school They treat that boy like a
slave. He was a disgrace to them to be around. He bad a constant reminder that he didn't belong.
He was everybody's scapegoat.
I remember when Raphael was scalded by a pot of beans that was too heavy for him when
he was cooking for his brothers. He was trying to take a heavy pot of beans off the stove and
slipped and ran down bis arm. I remember this because Raphael was too young to have to cook
for the kids and got hurt in the process.
With Rapbae~ it was always gotta, gotta, gotta. James made Raphael get out and help
him hauling hay by the time he was 1Oyears old. Raphael was not allowed to play or hang out
even though the brothers could, because he bad to work whenever possible. Whenever Raphael.
wasn't working or at school, he bad to clean the house or do the wash or do other chores around
the house.
Diane constantly told RapbMl that he was worthless and didn't amount to nothing.
When Raphael was spending the weekend with me, and when he was living with me,
would curl up in a ball and cry. When he got like that we would have to wait it out. Raphael
would not respond to us when he was like that I saw Raphael curling up outside beside the house
after an argmnent with Tay. The argument started because Raphael jumped up to do something
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for me that I asked Tay to do. Tay was upset and told Raphael 'she aint your momma.' Raphael
was deeply hurt by that and ran outside crying. We fowid him a few minutes later, beside the
house, all curled up and out of it. He cried and cried till his eyes swoll shut. That hurted Raphael
so bad. He wanted to have a momma.
Raphael couldn't read anything or write when he lived with me in higbschool. When ttie
older kids found out he couldn' t read, they'd tease him and he .wouldn't go to school anymore.
The older kids would say "you dummy," and pick at Raphael and it would freak him out.
Raphael tried to kill himselfwhen he thought I was going to send .him baclc to his family.
He had skipped school one day. He knew I was going to find out. I worked late at night Raphael
slept with a boxcuttcr under his pillow so he could cut his wrists when I came home and told him
he had to leave. He was so cared of being sent back home.
Raphael came to live with me because James mom called me crying and begged me to
come get him. The whole family was upset and James and Diane were both beating on Raphael
when grandma came over to br~ the fight up; ~amcs.had ripped Raphael's shirt off of him and
was beating him badly. Raphael bad whelps on him from the fight. Grandma had enough of the
trouble between James and Raphael and wanted to get him out of the house. Grandma stayed in
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the middle, of what was going on in James' home.
Raphael could never stand to be around adult women when he was a teenager or child.
When he would stay with me and my sisters would come over, he would not let them bug him or
rub on the top of his h~. He would physically stay away from adult women.
Raphael used to cry in bis sleep, when he lived with me.

When Raphael was around me and at" my house as a child, he kept his head down, and
kept out of everyone's way. When he finally trusted me, be opened up and cried, about how he
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was treated at home.

My boyfriend Eddie, Raphael's uncle, was such a brute. He'd get jealous if another man
even looked at me. He didn't like another guy looking at me.
I suspected both Boo and Eddie were on crackwhile Raphael was in high school. Boo
eventually got off the pipe and kept his job but Eddie was temole about his addiction. Eddie's
tamily took up for him, whenever he wronged me. When Eddie was on crack, he'd take my car
and be gone for days. I had to call his mom and threaten to call the police before he gave the car
back.
..
GLORIA E. REBOU.OSO
MV COllMlSSION EXl'll'l!S
jlplll. 2IXl9
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ATTACHMENT 7
Case: 15-70035
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StaU of Texas
County ofGrimes
Affidavit of Ma~jorie Minor
./
I.
My name is Marjorie Minor. I am over the age of eighteen. I ahve first-band knowledge
of the facts asserted in this affidavit.
My daughter's son, Raphael Deon Holiday, was convicted and sentenced to death. My
daughter, Angela Diane Holiday Nickerson is Raphael's mother.
I had seven brothers
JZlsiaJai
S&Ri growing up. Out of all the girls in my family, I
was the one that had to stay home and do laundry and cook and clean for my brothers. I was the
mother.
Diane was my oldest child. Before Raphael was born, I was proud ofDiane. keeping her
grades up and working hard in school. Diane was going to go to coJlege until she got pregnant.
..
Diane never told me she was pregnant. I noticed it one evening when we were sitting
watching 'Sanford and Son,' and Diane had a hard time getting out of a chair. Diane had staned
spreading and had to be 3 or 4 months pregnant at the time. When I found out Andrew Taylor got
Diane pregnant, I was angry enough at him to want to shoot hlm. Diane was only 15 years old.
Andrew was in his twenties and married.
Diane told me, just a year or two ago, that Andrew raped her after blowing marijuana
smoke in her face. It made really angry to find out he had done her that way.
I was married for a while, when Diane was growing up. I got off work early one night and
came hoine unexpectedly. I went pushed in the bedroom and saw my husband had Diane in bed
and had thrown her panties on the floor. Diane was in tears. I got my gun and went after my
ds;:ga SD so
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husband. I ran him off.

After Raphael was born. I got a babysitter for him and let his momma go back to high
school. When I wasn't working, I brought Raphael everywhere with me. I used to even bring him
to the beer joints. I didn't want nobody else to keep him. Raphael called me 'momma' more than
be called Diane 'momma' when he was littie.
When Diane manied James, she moved and took Raphael off to Stoneham. Raphael's life
was much different in Stoneham than it had been with me. The first house they had in Stoneham
wasn't fit to live in.
RaphaeJ was the child that was made to do all the work in the family. Raphael would have
to come in from playing to change his brother's diaper or give him a bottle or rock the baby. As
he got bigger, he still had to do the majority of the chores. He cook, clean; he do it all for them
little brothers. He raised all them children. Diane could be watching t. v. or resting on the couch
and she would call Raphael, 'the baby wet, come take care of him.'
Raphael wanted to play football while he was going to school in Navasota. Neither James
nor Diane wanted to be bothered by picking him up after practice. Both James and Diane would
jump on him when he got home for missing the bus and having to stay with their fiunily in town.
They punished him because they couldn't be bothered by picking him up. They was against it and
James wouldn't pick him up.
It seemeq like James and Raphael could never get along. James would cons:tantly pick at
Raphael. All ofthe kids could be sitting around and James would say 'come hereand do this
here,' to Raphael and let the other brothers be. James and Raphael never did get along.
Raphael was upset by his daddy James picking at him. Raphael used to call to me crying
"momma I aint doing nothing and they jumping on me." Raphael felt like nobody cared about him.
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He has told me grandmother many times that his mom doesn't care about him and James doesn't
like him.
Raphael loved bis kids. Raphael always took good care ofbis child and her sisters. He
.j
fixed them food. cleaned up after them, made sure the}' had a bath, etc. I just can't see Poochie
man hurting his kids intentionally.
While Raphael was growing up, I used to cook big dinners most Sundays. My whole
family would come to my house and hang. out and eat.
Kenneth is my son and Raphael's uncle. Raphael bung around and looked up to Kenneth
wJu1e growing up. My son Kenneth tried to rape me when he was high. I eventually put Kenneth
out of my house and don't talk to him anymore. I try to support all of my children but K~
keeps on smoking and doing bad.
I get mad and lose.my temper sometimes. When I get lose my temper, I can get mad 'til I
just don't have no sense.
GLORIA E. REBOLLOSO
MY COMMISSION liXPIFB
Apdl&,2009
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. ATTACHMENT 8
Case: 15-70035
Document: 00513265976
StaJe of Texas
County of Grimes
Page: 97
Affidavit of Micha~ Blackshear
..... .
My name is Michael BJackshear. I am over the age of eighteen. I have first-hand
knowledge of the facts in this affidavit.

Raphael holiday is a cousin through his step-dad, James Nickerson. I am related to
Rapahel through James family but I know Diane and her family well also.
When Raphael was growing up in Ston~ It was all about Eric, Tarvis, and Chase.
Raphael was the odd one out iD the family. He wasn't James' son. He was treated like he was the
1
worker. He was the oldest had to take care of the younger children. He was doing all the chores.
James treated Raphael like anything ~e was doing was wrong.
Rap~l
could be doing
chores or sitting around not working and either way whatever he was doing was wrong. He was
doing the chore wrong or he was being lazy and not doing anything. I remember when Raphael
was pushing a baby carriage back and forth when he was up in age. He bit a rock and dumped the
baby over and James jumped on him for it. James started pushing and smacking Raphael. It was
not James way, to sit and talk to a child. James would get in Raphael's face or jump on him
Raphael's mom treated him the same way. Diane was the one that would slap or bit
whenever she was mad at Raphael. Diane could hit Raphael fot talking back or for not doing a
chore right. I saw Diane throw a cordless phone at Raphael because he stayed out in her car
longer than he was supposed to.

I remember one time Raphael stood up toDiane. She called her bi-others in Navasota and
they all went out to Stoneham to jump on Raphael.
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Raphael got blamed when anything went wrong or was broken in .the family home. Half
the time it'd be the other boy's fault, and Raphael would get the blame and get beaten.
James used to jump on Diane all the time when we were little. I've seen Diane with black
eyes, busted lips, bruises. James can be ajeaJous type guy. He'd come home late or suspect mom
was gone longer than she should be and he would jump on her. The tallc in the family was that
James wouJd run around with other women and then come home and accuse Diane of running
around and jump on her.
I stayed out at Raphael's house for a little while one summer. I called and asked to come
hclme because they were feeding me sandwiches everydiry. The family bad some~ to eat but
the food was poor and not much.
I was at the house in Bedias when Raphael, Anthony [Robert}. and Pooh were leaving to
r''
go rob the store in Shiro. I didn't want to bave anything to do with it and thought they shouldn't
do it. I was like don't do that.' They were drinking and high and sw-e they were going to get
I!
some money. The talkthat evening was that they were going to rob the store. Neither Raphael
nor anyone else was_talldng about going over to Tammy's or causing trouble with Tammy's
family.
When they came back from the store in Shiro. I first saw the gun. When they Jeft again,
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they were taking Raphael to meet Tammy in Madisonville. I thought Tanuny was going to meet
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Raphael in Madisonville.
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I thought that Raphael and Tammy were going to work things out. She came by to see
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him in Bedias when he was staying there. She would call b:irn on the phone and he would get
J1appy. Raphael wanted to get through the problems and get married with Tammy. I've seen
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Raphael crying over being separated from the kids and Tammy. At Bedias, Raphael had a bottle
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with his kids picture in it that he looked at all the time.
rve ~ Eric with ,essica on more than once. Jessica messed with the boys in the family.
I wasn't there when Raphael supposed to have raped Jessica but I know she mess with boys in the
family.
GLORIA E. REBOLLOSO
MY COMMISSION EXPIAES
Aprl0,ZDD9
dss=Eo so so
F\iti,.i
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ATTACHMENT 9
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State of Texas
Couniy of Grimes
Affidavit of Eric Nickerson

My name is Eric Nickerson I am over the age of eighteen. I have first-hand
knowledge of
the tacts in this affidavit.
My brother Raphael Holiday got a death sentence for ca.using a :fire that burned up his and
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Tammy's children.
My brother raised us. Raphael had to cook, clean, everything. Raphael did evesything for
me and my brothers. Our mom and dad worked often and Raphael did all the work around the
house. Grandma was next door whenever mom wasn't home but Grandma put him to cooking
and taking care of us.
We had a wood-burning stove for warmth and to cook. Raphael had to cut all the wood
when we was kids. I remember Raphael cutting wood and me and Chase watching and picking up
the little pieces when Raphael was about 7 years old.
When Raphael was.not working around the house, he would go find odd jobs to do. He
worked end brought momma home the money. Raphael was working in the hayfields or mowing
grass or working on fanns at 10 or 11 years old.
Raphael used to black out every once in a while. Raphael kicked and fell out at school
one time, bitting his head on a desk. It was big news at school. l remember my brother frequently
had headaches growing up.
My brother never could read very well, he wasn't at all a good reader. Raphael wasn't
good in math either. He could barely do homework and had a very bard time at school.
l"d
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I
Raphael and my dad always had trouble getting along because Raphael would think he can
run things, and his dad would knock him back down .. My dad was very strict about the house. My
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dad woUld get mad if we were sitting around running the air conditioner or bad .the lights on all
day. If dad said something to Raphael and Raphael said an)'thing back, my dad wasn't trying to
hear it.
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The house we grew up in didn't have running water, then didn't have hot water, for a long
time. We bad to bring a hose from Grandpa's house to have water. We had to fill a bucket up to
flush the commode. We had to cut wood up to keep wann on cold nights.
As a &mily, we went over to my mom's mom's house on Sundays for dinner. The get
togethers whb mom's family got rowdy, all the time. We went over to ~dmother's almost
every Sunday and there would always be drinking and brothers fighting.
All of1:he boys of our family messed with Jessica ever since we was little. Raphael had
messed with Jessica before he supposed to have raped her. I was with Iessicajust a few minutes
before Raphael went to see her. i messed with Jessica then she told me she wan~ed to get high. I
told Jessica 'Poochie man [my brother] got s~me weed.' Jessica told me "go get him." Raphael
came over but Jessicajustwanted to get high. Raphael let her smoke then wanted to mess with
her. Jessica kept saying 'nab, nab,' and Raphael insisted. She finally let hlm. They got caught by
my mom when they made noise. I was right there in the li~g room next to the bedroom, and
Raphael wasn't trying to rape her.

Jessica had been messing with all of the boys since they were little and no one ever knew.
Jessica was embarrassed that mom found out.
l was with Anthony, my brohter Poochle man, and Pooh when we went to shoot the gun
on the afternoon ofthe fire. Pooh ha.d come up with the guns, and we went to shoot them. While
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we were shooting the guns, Anthony told Pooh and Poocbie man about a old woman that closed a
store in Shiro and come out with a bank bag of money every night. Anthony convinced Raphael to
help him rob the woman that night, Pooh gave them the gun but wanted to go with them to do the
robbery. I heard Tammy called Raphael that night while they were either in Bedias or at Shiro,
saying her boyfriend Eric was over at the house.
Tammy brought the babies by to see mo~ on the Tuesday, a week before the incident.
I visited Poocbie man and Tammy many times, either when they lived behind me in the trialer or
when Poochie inan lived in Madis0nville. My brother never whooped Tammy. The kids respected
him and obeyed him. The kids weren't afraid of Raphael. I know my brother. I grew up with him.
I know he had problems but I can't see him burning his kids up. He just didn't do that on purpose.
GLORIA E. REBOLLOSO
~;_,
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otar;Pllblic .... :. State Tens
M'I OOMMISSION exPIRl!S
llprl
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Document: 00513265976
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GLORIA E. ReBOU.OSO
MY COMloGSSION EXPIRES
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ATTACHMENT 11
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Document: 00513265976
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-------- -
State of Texas
County of Travis
--
}
}
}
STATEMENT
F GERALD HURST, Ph.D
BEFORE ME, the undersigned uthority personally appeared Gerald Hurst, and
being sworn, stated as follows:
I.
My name is Gerald Hurs . I am over the age of 18 and have
knowledge of the matters dis cu sed within this affidavit. I am a consultant
in the field of explosion and fir analysis. I earned a BS in Chemistry from
Central State University in 195 , pursued graduate studies in Chemistry at
Iowa State University in 1960,
d received a Ph.D. in Chemistry from
Cambridge University, in Cam ridge, England in 1963. I have been a

private consultant in the field o fire and explosion analysis since 1972.
From 1963 to 1980, I worked a a research scientist in the fields of study
including fire initiation, propa tion and arson techniques, propellants, and
explosives.~
I hold appr9!'hp.~t ly a dozen patents in United States and many
other countries for inventions r lating mainly to explosives technology. I

have spoken on the subjects of
e and explosion science matters before the
National Safety Counsel, Unit
States Forest Service, United States Army,
and United States Air Force. I addition to working for private individuals,
I have also provided consultati n to several military and civilian
government agencies, includin the Federal Bureau of Investigation, the
Bureau of Alcohol Tobacco
Firearms, the United States Forrest Service.

II.
The field of study addr ssing the initiation 1 mechanism, prevention

and analysis of fires and exp lo ions is scientific discipline based upon
1
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objective principles. Through ut much of its history, fire investigation was

often treated by practitioners a an art rather than a science, resulting in
systema;tic errors in the analys of cause and origin. With the advent of the
key publication NFPA 921 Gu de to Fire and Explosion Investigation and
the nearly concurrent adoption of the Daubert Rule, it became obvious to
both the technical and legal co unities that, in the interest of justice, fire
investigation must necessarily e conducted in accordance with the
principles of the scientific me
Two aspects of the scie tific method which are particularly relevant
to this case are:
I. The scientific metho requires that any hypothesis be tested by a
thorough attempt to falsify the proposition. This is a simple but powerful
concept which has great relev
2. The scientific metho demands that conclusions be derived by
rational methods based on de onstrably proven principles.
In preparation of this c se, I have reviewed the following documents:
trial testimony from John De an, the State's fire expert, Judd Clayton, the
defense's fire expert, David R iter, an electrical engineer, David Opperman,
an ATF Agent who participat in the investiga~ion, Ken Moore, a manager
for Sears Product Services, To y Pleasant and Harry Bowers,
investigators with the State F' Marshall's Office, Jim Swindall, a State
Fire Marshall criminalist, Be erly Mitchell, who was inside the residence
when the fire started, ATF rep rts relating to the fire, Texas Department of
Public Safety - Texas Ranger eports relating to the investigation,
diagrams of the crime scene p epared by the State Fire Marshall's Office,
diagrams of the "pour pattern' by Beverly Mitchell, laboratory notes from
the DPS, color photographs o the crime scene taken by the State Fire
2
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Marshall's Office, color photo aphs of the crime scene taken by the
Madisonville County Sheriff s Department, and color photographs of the
crime scene taken by defense ounsel William Carter. These materials are
adequate for a review of the s entific accuracy of the testimony relating to
the fire analysis during trial.
III.
A.
In Mr. Holiday's case,
e ultimate conclusion, that the pilot light on

the oven broiler could be reas nably excluded as a probable source of
ignition of gasoline vapors in e house is not based upon an objectively
reasonable evaluation of the ci cumstances. In essence, John DeHaan's
conclusion that the broiler pil
ignition source was not scienti
conclusion was not scientific
anyone qualified to conduct a
light was not likely to have been the

1cally reliable. Moreover, that DeHaan's
y reliable would have been apparent to
e analysis using the scientific method.
The ideal scientific met od to determination or to rule out possible

causes of a fire would involve
all the envirorunental factors
duplicated. In the absence of
necessitates a review of all rel
substantially similar condition
circumstances is indisputably
series of controlled experiments in which

hich existed immediately prior to the fire are
at, however, objective scientific procedure
vant information involving identical or
. What has occun:ed under similar
levant in a causal analysis.
DeHaan' s exclusion of
broiler pilot light as a reasonably possible
ignition source of the gasoline apors is based on several misleading, if not
outright false, assumptions by eHaan. A key factor i~ DeHaan's
exclusion of the broiler pilot li t appears to be the fact that the broiler pilot
3
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light was approximately 6 inch s off the floor, and for that reason, the
gasoline vapors would likely n t have come within sufficient range of the
flame in order to ignite. DeHa
's basis for this conclusion rests upon his
anecdotal account of an experi ent he conducted with a candle and a

gasoline spill which he conduc ed at some unspecified date in Australia for
the Australian Fire Service.
's demonstration is not a published study,
and the specific conditions of e experiment are not clear from his
testi~ony.
The scientific relia ility ofDeHaan's candle demonstration is .
lacking for the purpose of dra 'ng an objective conclusion with respect to
Mr. Holiday's case.

DeHaan's experiment c nsisted of pouring gasoline onto a carpet in
a room in which a 6-inch candl was burning on the floor. At trial, he
suggested that since the candle ad not ignited the fumes in his experiment,
the pilot light of the broiler, w 'ch was at a similar height, would have also
failed to ignite the fumes at the fire scene.
In order to overcome ob ections that conditions at the fire scene were
not exactly the same as in his
eperiment, DeHaan asserted that the validity
of his conclusions was support d by two additional alleged facts:

A. That the moving air in the subject room would further inhibit or
delay ignition as co pared with the conditions of relatively still
air in his experimen .
B. That gasoline poure on the vinyl floor of the subject house
would generate vap r at a lesser rate than gasoline absorbed in a
porous medium - s h. as in his experiment.
Both of the alleged facts, A an B, are incorrect. As is described later in this
report, scientific research has s own that moving air actually increases both the
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speed and frequency of the igni ion of gasoline vapors by open flame sources near
the floor. Furthermore, researc conducted under the auspices of the National
Institute of Justice has shown
carpet and on vinyl, the liquids
the area of a corresponding spil
Liquid Spill/Bum Patterns," NI
evaporate faster from the much
measured heat release rates of
rate during the fire is substanti
t when the same quantity of gasoline is poured on

reads over an area of the vinyl averaging 10 time
on carpet. (See: "Flammable and Combustible
Report 604--00). It follows that the gasoline will
arger area. This conclusion is verified by the
e ignited pools, which show that the evaporation
ly greater from the vinyl surface.
Thus, DeHaan erred in t tifying that the conditions of his experiment were
more conducive to ignition th
were the conditions at the fire scene.
Essentially, DeHaan's ca die experiment provided an "anecdotal"

rather than a scientifically faun ed basis to draw a conclusion in Mr.
Holiday's case. It should be.no ed that at the time of Mr. Holiday's trial,
there were several other "anecd tal" accounts relating to gasoline fire
ignitions in the presence of 9pe flames which contradicted DeHaan's own
demonstration. Several instanc s could be found.in the National Fire
Protection Association's trade p blication, the NFPA Journal: Teenager
Sniffing Gasoline Fatally Burne When Vapors Ignite, NFPA Journal, May,
p. 26 (1992); Man Dies When umacelgnites Gasoline Vapors, NFPA

Journal, June, p. 28 (1992); 0 e Child Dies, Another Injured When Water
Heater Ignites Vapors, NFPA J umal, February, p. 21 (1993); Two Die in
Garage Fire, NFPA Journal, J uary, p. 26 (1997). DeHaan did not refer
to these news items when relyin upon his Candle demonstration and this
failure to address these instance of gasoline vapor ignition is significant for
two reasons. First, if, for the p ose of reaching a conclusion regarding
Mr. Holiday's case, DeHaan w e unaware of these anecdotal instances
addressing gasoline vapor fires imilar to his own demonstration, but
suggesting a contrary conclusio , then he clearly did not follow established
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scientific methodology in reac g his conclusion. The scientific method

involves thorough research int all available infonnation, including any
contrary date, in order to chall nge the validity of the hypothesis.
conclusion cannot be consider d scientifically valid ifthe scientist has

failed to detennine the existen e of contrary data which undennine the
initial hypothesi~. Second, if eHaan was aware of these contrary
anecdotal data but simply faile to address it because it would undermine
his desired conclusion, then hi conclusion is scientifically invalid, as well
as intentionally misleading.
B.
There is an even more 'gnificant flaw in DeHaan's conclusion
based upon his candle demons ration and that is the existence of
scientifically valid experiment by a reputable authority regarding gasoline
vapors and water heater pilot I ghts which demonstrate a contrary finding
than that reached by DeHaan. In 1994, the Consumer Product Safety
Commission (CPSC) was pro 'ded test data commissioned by the Gas
Appliance Manufacturer's As ciation (GA.MA) which addressed safety
hazards associated with the i
ition of gasoline vapors by the pilot lights
and/or burners of water heater . Arthur D. Little Inc (ADL), an engineering

safety consulting firm commis ioned by GAMA, conducted extensive
testing on the ignition of gasol e vapors by water heaters. The test data
were ultimately provided to th CPSC and published in a memorandum
entitled Briefing Package for
as-Fired Water Heater Ignition of
Flammable Vapor. This doc
ent has been available to the public on the
CPSC web site. The Briefing ackage, in its executive swmnary, identifies
the problem of gasoline vapor 'gnition by water heaters as a considerable
problem:
"Gas-fired water heate
igniting flammable vapors cause an
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estimated 1,961 fires ea h year, resulting in an estimated 316

injuries, 17 deaths, and 26 million in property damage for a
total societal cost whic may be as high as $395 million.
Typically, injuries occ
when the victim is using :flammable
liquids (usually gasolin ) for cleaning purposes, or when the

liquid leaks or acciden Uy spills near the water heater."
The CPSC's Briefing P ckage is-not only significant in identifying
gasoline vapor ignition as a co siderable phenomena - something which
itself casts doubt upon DeHa 's anecdotal candle demonstration. The
Briefing Package includes wi in its appendices the testing data provided
by ADL, identifying several fi tors contributing toward increased
likelihood of gasoline vapor i
ition, most significant of which is air
movement.
The ADL data have p
'cular applicability to Mr. Holiday's case
because a review of the testin data demonstrates that Test No. 7 is

particularly analogous to the c cumstances in the present ~ase,
a~
well as
analogous to DeHaan's Candl demonstration. In Test No. 7, ADL spilled

one gallon of gasoline 8 feet
m a floor mounted water heater in a room
measuring 10' x 20' x 8 Tuer was no air movement in the room.

Nevertheless, the gasoline vap rs were ignited by the pilot light in 51
seconds.
The results of Test No. , conducted as a controlled experiment are
materially at odds with DeHaa 's candle demonstration, which does not
appear to have been conducte along the same scientific procedural
guidelines as a controlled exp iment. Although DeHaan's candle
apparently did not ignite after 0 minutes after having a gallon of gasoline
spilled proximately to the fla e source, the ADL experiment produced
ignition from a pilot light wi
one gallon of gasoline spilled 8 feet from the

7
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flame source after 51 seconds. The results from the ADL experiment
undermine the accuracy, and
refore the reliability, ofDeHaan's Candle
experiment.
The environmental and esting circumstances of Test No. 7 are
analogous to those in the prese t case, but not identical. These differences
however, would support a hyp thesis of an even greater likelihood of
ignition in Mr. Holiday's case.
lthough the ADL experiment involved only
one gallon of gasoline, the am
nt of gasoline poured on the floor of the
Wilkerson residence appears t be between 3 - 5 gallons.

unlike.the ADL experiment, in
In addition,
hich the air was still, in the case, the air
conditioner(s) were likely runn g, as well as possible movement by the

occupants in the house, contrib ting to air movement and consequent vapor
distribution. ADL identified a movement as the most significant factor in
decreasing ignition time of gas line vapors.
The ADL testing data w re available prior to DeHaan's evaluation of
the evidence in Mr. Holiday's ase and are highly material to the central
hypothesis of this case -wheth r the broiler pilot light can be reasonably
excluded as a possible ignition source. Not only do the ADL test data
conflict with DeHaan's demon tration- on which he appears to have
heavily relied for his exclusion of the broiler pilot light, but it would
concurrently have supported th reasonableness of the hypothesis that the
broiler pilot light was a possibl source of ignition. It would have been
unreasonabfo for a scientist to isregard these data in arriving at the
conclusion reached by.DeHa
and DeHaan's conclusion is not objectively
reasonable in light of the ADL data.
c.
A second false assumpt on presented by DeHaan in excluding the
broiler pilot light rests in his c nclusion that the broiler box would have
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significantly impeded the gaso ine vapors from reaching the pilot light.
broiler is ~ot sealed against air flow in the sense that DeHaan suggested in
his testimony. Broilers are des gned to draw air into the chamber to
facilitate burning because the roiler fire cannot burn without sufficient
oxygen. It is not accurate to s ggest that a closed broiler would impair the
ingress of gasoline vapors in a ignificant way as to preclude possible
ignition in this case.
D.
Still another scientifical y false or misleading assumption by
DeHaan involves his conclusio that ignition of gasoline vapors by the
broiler pilot light would have r sulted in an explosive type force which
would have opened the broiler
awer, or pushed the drawer out of the
broiler. DeHaan's statement i misleading because it suggests that in order

to ignite within the broiler, it ould necessarily require sufficiently high
quantity of gasoline vapor to p oduce an explosive effect. This is incorrect.
It is universally recognized in
e scientific community that the ignition of
gas vapors does not necessaril always result in an explosion. Whether an

explosion occurs may depend pon many factors, such as the amount of
premixed gas present and the d gree of confinement of the mixture. If the
gas simply flows as a layer int and under the pilot light, the subsequent
burning at the interface of the as layer and air may proceed at the low rate
of about 1.5 feet per second, re ulting in no more than a gentle whoosh of
combustion gases back out of e inlet vents. Explosions generally occur
after enough time has passed t build up a substantial quantity of wellmixed air and gas. The gas in
e broiler would have failed to explode for
the same reason that the room self did not explode: insufficient time for
mixing. This fact is recognize in the NFPA 921.
Thus, a low quantity of
mixed gasoline vapor in the br iler box would not have produced an
explosion, but would simply h e produced a flash fire which would have
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run along the vapor trail, ultim tely igniting secondary sources of fuel. A
conclusion that the pilot light ould not be an ignition source based on the
lack of explosion evidence is t scientifically reasonable, and is a plainly
inaccurate and misleading stat ment.
I
In sum, it is not scienti cally reasonable to have excluded the broiler pilot
light as a possible ignition so ce for gasoline vapors which resulted in the fire in
this case. DeHaan's heavy rel" ce upon his own ~ecdotal experience does not
comply with established scient fie methods in ruling out possible causation. There
were readily available eontr anecdotal data which contradicted DeHaan's own
personal experience, but more portantly, there were reliable scientific data
which indicated that the broile pilot light could not reasonably be excluded as a
possible source. Similarly, the onclusion that the broiler box design would have
impeded the ingress of gasolin vapors to any meariingful extent with regard to
ignition is unsupported. Fina ly, the conclusion that ignition of gasoline vapors
would have resulted in an exp! sion is also scientifically unsupported, and
therefore misleading.
IV.
The prosecution's case egarding the fire origins also appears to have
rested upon scientifically unre aole opinions regarding gasoline "pour
patterns" on the concrete slab this case. State Fire Marshall's Office
arson investigator Harry Bowe s prepared several diagrams of the arson
scene as well as a reference in s arson investigation report. Within
Bower's report, at page 4, Bo ers has stated that the investigators identified
from an examination of bump ttems on the concrete slab specific pour
patterns extending from the fr nt door of the house to the couch area,
behind the couch, then to the ea of the space heater. Bowers stated that
these "pour patterns" were attr butable to Mr. Holiday because Ms. Mitchell
10
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denied pouring gasoline in the e areas. Mr. Bowers concluded that "[w]hen
[Ms. Mitchell] was in the bedr om of the residence, Raphael Holiday
poured gasoline in the area of e couch, refrigerator and trailed the pour
pattern near the front door. H ignited the gasoline, burning himself in the
process of ignition." Bowers lso prepared diagrams of the arson scene
identifying as an "area of ori " swaths from the front door extending to
the couch, the couch area, incl ding the couch, and a portion from the area
of the space heater, proximate o the gas oven, extending to the pour areas
claimed by Ms. Mitchell. D
g trial, Mr. Bowers referred to the
"irregular" bum patterns on th slab. It is unclear whether the diagram
depicting the floor bum patte s were admitted. Mr. Bower's report and
diagrams were among the evi ence on which John DeHaan relied in making
his determination of causation
The bum patterns on
slab cannot be relied upon as a basis to
conclude that Mr. Holiday, or yone else poured gasoline on those areas.
Where a prolonged fire resul in structural collapse, the burning debris may
produce buril. patterns on the ooring which mimic or mask patterns which
may be caused by the pouring of flammable liquids. This fact is well
recognized in the arson inves gation community. For example, it is well
known among fire investigato s the investigation carried out by fire
investigator, John Lentini, ass sted by John DeHaan, in which a controlled
fire experiment in a home, .no involving the use of gasoline produced burn
patterns which were widely taken to be pour patterns. See, "The Lime
Street Fire: Another Perspecti e" The Arson and Fire Investigator, Vol. 43,
No. 1 (Sept 1992).
Further, NFP A 921 sp cifically cautions arson investigators that:
Irregular, curve , or "pool-shaped" patterns on floors
and floor coverings sh uld not be identified as resulting from
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ignitable liquids on the asis of observation of the shape

alone. In cases of full r om involvement, patterns similar in
appearance to ignitable iquid bum patterns can be produced
when no ignitable liqui is present.
***
These patterns ar common in situations of post
flashover conditions, lo g extinguishing times, or building
collapse. These pattern may result from the effects of hot
gasses, flaming and sm ldering debris, melted plastics, or
ignitable liquids .... In
y situation where the presence of
ignitable liquids is sugg sted, the effects of flashover, airflow,

hot gasses,.melted plas c, and building collapse should be
considered.
The fire in this case inv lved a full structural collaps~, which would
have resulted in burning debri upon the floor, and produced bum patterns,
possibly mimicking those of p ur patterns for gasoline. To the extent that
the arson investigators and the xpert relied upon pour patterns for a
of the origins o the fire, such reliance would have been
determipation
.... . ::.:..
scientifically unreliable becau
it would have been impossible under the
circumstances to differentiate
e bum patterns as caused by poured
flammable liquid, from a patte

to the extent that any witness
resulting from burning debris. Similarly,

nveyed the impression that these patterns
were necessarily the result of oured gasoline, without acknowledging the

possibility that the patterns co ld also have been caused by burning debris,
the testimony would have bee
v.
As a part of my review fthe testimony and other evidence in this
case, I have reviewed the testi ony by the defense expert, Judd W. Clayton,
12
Case: 15-70035
Document: 00513265976
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and tried to estimate the effec of Clayton's assistance upon the defense's
ability to present a cogent cha enge to the State's theory that the cause of
ignition is necessarily attribut ble to Mr. Holiday. I conclude that Mr.
Clayton made a serious error his analysis of the stove which would
necessarily have affected his :vice to the defense, and as a result, the
defense's ability to focus on e possibility that the stove pilot light was the
source of ignition.
It appears that Mr. Hol' ay 's defense lay in a theory of accidental ignition
of the gasoline vapors. Mr. C yton testified about several possible sources of
ignition steriunii:ig from the ap liances throughout the house, the refrigerator, the
electric water heater, the air c nditioner, the gas heater, etc. While Mr. Holiday's
trial counsel addressed the sto e as a possible source of ignition, Clayton
acknowledged that the stove t p broilers were possible ignition sources, but
misidentified the broiler igniti n system as an electric ignition, rather than a
continuously burning pilot Ii t. For this reason, Clayton testified that the stove
broiler was not a likely source of ignition.
The State contradicted layton' s testimony about the broiler pilot
light with a technical manager for Sears, where the Mitchell's purchased the
stove. The technical manager estified that the Mitchell's stove was a gas
model with a standing pilot Ii ht in the broiler area. I believe the testimony
reflects that the stove model c uld not have had an electrical ignition
system because the model wa not electrical because it did not come with an
electrical power cable, nor di it include any "igniters" which would
indicate that it had an electric l ignition system
Mr. Clayton's misident fication of the stove ignition system seriously

compromised the defense in s case. From a scientific standpoint, the
probability that gasoline vapo s would have been ignited by an electrical
spark from the household app iances other than the broiler pilot light was
13
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Document: 00513265976
Page: 122
exceedingly remote. It is sitn ly improbable that the gasoline vapors would

have ignited at the time they
d from an electrical spark or from the
relatively elevated range-top ilot lights. But it is a different matter when

the question is whether igniti
stove broiler pilot light. Cla
could reasonably have resulted from the

n even acknowledged that a burning broiler
pilot light would have increas d the probability of ignition, but undermined
this option by concluding the roiler had an electronic ignition system. As a
result, Clayton's testimony el ' 'nated the defense's most scientifically valid
theory in favor of more remot hypotheticals. It is also probable, if not
conclusive, that as a result of layton's misidentification of the broiler
ignition system, he failed to u dertake sufficient research into possibilities
of broiler pilot light ignition, pecifically the Arthur D. Little experiments
with water heater ignition, wh ch would have contradicted John DeHaan's
exclusion of the broiler pilot 1 ght as an ignition source. The end result,
from a scientific standpoint, i that Clayton's misunderstanding of a key
factor in this case, deprived t
defense of its most viable theory of ignition.
It is clear that the defe se expert was not using a rational approach to the
case. He was aware that the t p burners had pilot lights. It would be unexpected
to find a hybrid kitchen range that is, a stove with mixed electronic ignition/pilot
light systems. The presence
the top pilots should have been a red flag for him
as it was for the writer.

The writer quickly det nnined that broiler had a standing pilot light before
reading that fact in anyone's t stimony. The presence of the upper pilots mandated
a search of Sears' publicly av ilable database on Kenmore appliances. Using the
owner's receipt for the model umber1 it was a routine exercise to establish that the
broiler had a standing pilot li ht equipped with a thermo magnetic safety valve.
The defense expert si ply guess.ed wrong based on what he saw (probably
in the picture at trial). Sears arts catalog shows that the pilot is equipped with a
14
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Document: 00513265976
Page: 123
thennomagnetic valve. Possibl , the expert confused the probe of this device for
an electric wire. In any case,
error is not excusable. Fire investigation is based
on identifying ignition sources.
Further, affiant sayeth n t.
Gerald Hurst
3Ml'
day of May 2005.
SUBSCRIBED AND SWORN 0, before me on the
M~
I
Notary Public, State of Texas

~;:::
J.{~~?-"~-~!(.f;\ DE~BY WOLVERTON

~ H~)! Nolruy Pl.'bfi~, Sl&ls of Texas
'
',..,\-..~.~ '
~-;~':.~~Ji~
~:!:?..,.,<:J;
MyC!lll'; m."8foo Explr;is
FEBRUARY 13, 2009

;
#PO(lQ -.'1)022z;::aC$C;f~
15
Case: 15-70035
Document: 00513265976
Page: 124
ATTACHMENT 12
Case: 15-70035
Document: 00513265976
State of Texas
Page: 125
}
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County of Travis
SECONl> AEFID ,"VIT'0F GERALD HURST, Ph.D

BEFORE ME, the unqe_ts.lgil d 'authority personally appeared Gerald Hurst, and
being sworn, stated as foliOws:o
I.
My name is OeratdtH frst. lam over... .the

... age
- - of
. _, I~
- and
'
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'~
h~ve
knowledg~ of the matters .dJ :ss.edw.ithin this affidavit. I am a c~ns_ultant
Jn th~ fle~d of 'CJfQ~Rs}on ~4 lI~..8:E~:~Y:~!~ 1 earned ~:BS in ~hemistry from

GnJf:a:J.
State University !n.:li
graduate
studies
in Chemistry at
...,.....
. .59, p~~suep
.
-.
.
~
'Iowa State' Univer?j~y in, !'96 ., a~!<l .~:o.~.~v.e<hail~h O~ .W.~Ch.emistcy, fr0m

Cambd<lge lJniver.si.ty~,iJ"rt~ :1bridg.61 Eng1aa:d.i~l'B~S::fi11av..@t.b_e:en, a
pr.ivratt.l!cmn~D;lta:rtt;~~~~~~ ; otJ!~ct
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From 1963 to.19.80, Tworke.

<lS a i~sei\,rch scientist iri'the fieldsof study
...
incJuding fire init(atien; p:ro ~~;:t!on and arson techniques; ptopellarits., and .
explosives. I hoJd .~ppfQ~~'!l te'.:: a qq~en patent$ in Unitea States and many
other countries for inYeh~l~p re .. :: rig' riiairily to expl0sives technotdgy. l
have.spoken on th~~suBJp:~ts- f '.i . . : W\tl ~xplosjon science matters before the
National Safety Ce~n~e!;;Ui: .Led sta:fes,Fotest Service, United States Army,
and' Urt.fred S1!:ates ~;it.For~,ct: In " 'dlti'on to ~orking{tbr private individuals,
l hi;ve1
'irs.d!prijf'1~~ ~~n~-~f 11 i~ ji~.~~ral mmtarjaQ:d ci-vfli'an
gove~ent age't'r~~s.;. t~~iu' in~"

.
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Bureau,of
A;l'cohtil 'Pe.ba~co
n.'
.
: :
Service.
.
: ~F.cier~hB~ea1i anhv,esrigatipn, the

' l ,. ....
'
..
:~ear1i1's; and theUnited
'
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States Forrest
ir.
'l
. ~tidavit:feg~rdihg my review of the
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Case: 15-70035
Document: 00513265976
Page: 126
scientific testimony and oth r arson-related evidence given in the

prosecution of Raphael Hofi ay. During his testimony, the State's fire
expert, John DeHaan made 1 ention that his PhD thesis was inspired by his
earlier "candle experiment" onducted on an undetermined date in
Australia.
After submittin my first affidavit, I was provided by Mr.
Holiday's post-conviction c unsel a copy of DeHaan's thesis, entitled The

Reconstruction of Fires Inv lving Highly Flammable Hydrocarbon Liquids,
which he prepared as part o his studies at the University of Strathclyde; in

Glasgow, Scotland. Mr. Ho iday's counsel asked me to review the thesis to
detennine whether, and tow at extent it might support or refute Mr.
DeHaan's Lestimony in this ase.
I have reviewed DeH an's thesis and found several portions which
e.ither do not support, or flat conflict with OeHaan's testimony at trial. I
ave set my observations ou
1.
DeHaan' s methodol.o
in conducting the experiments differed from,
and did not necessarily corr pond to the circumstances which existed in the
fire at the Wilkerson residcn e. DeHaan ran only small vapor flow
experiments from pools and
etted substrates. He-did not measure the
vapor concentration gradien above the "spills" but merely tracked the
vapor roughly with a smoke en. This is significant in the context of his
testimony during the Holida trial. Under the methodology employed in
the experiments, DeHaan di not measure the limiting height at which
ignition of the vapors would occur. The height at which gasoline vapor
ignition would occur was a gnificant question at Mr. Holiday's trial.
2.
DeHaan's measurem nts of the velocity of vapor flow show that a
layer of vapor could easily h ve tlowed from the area of initial pour to the
gas stove in the reported tim frame. He observed that pours from a height
of one meter resulted in the vaporation of 25% of the pentane poured. He
2
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Document: 00513265976
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"''
further noted that the initial
v~poration
of gl'.lsoHne (top 25%) occurs a rate
comparableto pentan~: The efore. the pour by Mrs)viitchell
etvertne
chairs 1n the riving room ~~ td have created a ta~gV.olmrte offlowi~gj~as

vapor. This ~apqr'WoUldfla, e been, deeper than that from a simple
evaporating-.spill, tl\e type er ted by DeHaan in his experiments.
3.
l,)eHaan ~ckno~l'e~g , that the movement of vapors cqula :b~ .
spe!!dcl up by th;e~c0,n.~qci1v .flow :ftom an ignition stll.irce." Oh :j:>'ag~.-~:

1
D~Haran wrote ' S.u ~h slyr~e f~ fltepl~~~~; vfate~ heaters, fumac~~? ,~!iPr.
electFiC reom heat~rS',-~,e{-Q$e ~ _'\RS, evet\'a canal~ in some circttfust~n~es;
could all provide oonv~t1:ve 0WS ofvatious sfrengthsthat could entrain ..
vapours from the spill and e_-li.ance theit ho,r.ii:ontal spread.,. It imp! icitly
follows from this acJmewled enl, that the convective flow (of a pilot
:Hgpt) ,.q :ndd ,~ls.o .draw :v.ape?r, both to\vard .it
upward.
and
4.
DeHaan qualified the pplicabilify of hisexperimenis:outsideonhe
controlled situation i~ whieh he'conducted the exp.etiment. rnhis sufupi.~,
" .
D~Flaan warfred that his.met od of est-imating the behavior o.fspi'll v~g.Q~:.~S
0
not appJicable to,S:it'l!ati_9hs.i volyin-g movihg-air. onp'age 296.he V:..lfiti~
"this model is '-iali'd. ~n"J~:;r~: \;0~m~ wi,th no rriechimt~al. ve~titatjoo; '~ith
lll,i.t\ltn:il~Jea~ag~dQe.~~~e'it~ ~;r(t~fot's or wih'd,<i>ws, and .tb'at;pciuot have.

.
0:.
..
...
. i
~'si_gnifie,~ttt 'humal): pr v.eliicLII ~'ttraffrc." .
. .
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: '
5..
There is ~nother part fDeHaan' s'tlie$i:s, located-behind the
appendiees, on~pag~ 361, V:J. 'chis J?arti.culahly imp'prtanJ in the conte~rqf
1H~ t~~iweny itj tlre.Holid~y, ,~~e~. b~a~s~ it undeqniii~.~ 'th~a.e~uF~'9Y. qr,
I~ . ~a-atl; f)' r~]_i1~tt~~)~~~prS.; ~w~:- ~<qa?-ilie xp~iitne~1~~ 1~~SJ~tj~ti~~~t~'ei .. .

~ireW.Os.titn~~s:i1~~~1ititt,t$~he fire at tnewai<ers'on:t~sideFe: deEi~"ah-Wi'.6,. :!~\1
!.
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in hi$ tiisis:
'~e0nd_i~i,ons and'Jau. oq9
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Case: 15-70035
Document: 00513265976
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.,
Because these proces es are slow and easily affected by
.~
environmental featur . [sic] Leaks at floor level will reduce

the overall contributi n to the developing layer. Reductions in
ambient temperature r allowances for evaporative cooling)
will reduce the evapo ation rate. The use of camping, fuel will
reduce evaporation ra e. Draughts. a turbulent pour. or
mechanical moveme in the oom will all increase the
m and roduce localized and
time predicted here." (underlining mine)
In light of this discus ion, DeHaan's testimony that his candle

experiment results were app icablc to the Holiday fire scene was incorrect.
DeHaan maintained in hist timony that the moving air in the Wilkerson's
house would reduce the like ihood of ignition as compared with his candle
,i
experiment in relatively still air. This testimony is in direct contradiction to

what he later cautioned with n his thesis. The following excerpt from the
DeHaan's testimony (page 197, \st testimony sequence) should be
compared to the previous q ote from his thesis:
9
10
Welt, for iost ce, the air conditioner is an

example of h something can affect the distribution of
11
vapors. It's go ng to piCk the vapors up. It's going
12
13
to cause faste distribution of the vapors throughout

the room. But that means it's also diluting the vapors
14
further and fu ther as it mixes them through the rootn.
15
16
And that dilu on is many times the effect of basically

pushing the v pors away and causing the pool to
l7
evaporate fas r.
4
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Document: 00513265976
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18
So if I turned a fan on, for instance, I'm going to
19
get vapors spr d faster, but they will be so dilute
20
they are almos impossible to ignite at any position.
This testimony in relation to ilution of vapors through air movement is

plainly inconsistent with De aan 's thesis. Even more to the point, on pages
l 04 through 109 of DeHaan s second testimony sequence there is an
extended exchange in which De Haan insists in the midst of overruled
Daubert objections that air c rculation would tend to inhibit ignition. The
testimony flies in the face o the conclusion in the thesis. (And, as I have
t'
mentioned in my first state
nt, it is categorically wrong based on the
experiments reported by the
onsumer Product Safety Commission/Arthur
D. Littk in the water-heater gnition experiments).
6.
Finally, DeHaan's le :ves an open question about whether DeHaan
possessed at the time of the hesis a sufficient base of information to

subsequently conclude, duri g Holiday's trial, that the gasoline vapors
would not have ignited at th level of the pilot light flame within the broiler.
DeHaan 's vapor ignition e. periments were all conducted after the "candle
experiment"in Australia. D Haan indicated near the end of this thesis that
h~gid Qi~!--~~ye en2~@.~~a _to
predict_ ~_h_t?!ber.,.9,r_n2!_!~~ition of a
substance containing simila ignition properties to gasoline would occur six
inches above a spill. He ex lained that he planned future experiments to
make this determination usi g hexane:
"Tests of the ignitab ity of layers of hexane vapors arc
planned for the Fire
esearch Station - Cardington during
1995. These tests wi I involve the production of a floor-level
at
layer of hexane vap
r by evaporation from a 1 m2 pool
20C in the 20 m 3 e
losion test chamber. This vapour layer
will be ignited via a equence of electric match devices at
Case: 15-70035
Document: 00513265976
Page: 130
heights ofO.S, 0.35, 0 15, and (if necessary) 0.05m. The

pressures produced at various locations within the chamber
will be monitored."
Hexane is somewhat less vo atile than gasoline, meaning that it is less likely
to ignite at a given temperat re. nius if DeHaan had inadequate
information from his experit ents to determine whether Hexane would
ignite at 0.15 m (6 inches) a ove the spill, he could not, based upon the
infonnation he had at the tin e he was conducting these experiments, predict
the corresponding behavior f gasoline.
DeHaan's testimony at trial
strongly suggests that he ne er actually performed the proposed

experiments with Hexane; i he had, then it seems likely that, in utilizing the
scientific method in support of his theory about the fire's causation. he
would have cited this later e periment, rather than the 'candle experiment"
at least if it were favorable
his theory of ignition in the Holiday case.
Further, affiant sayeth not.
SUBSCRIBED AND SWO
//~"I"'
TO, before me on the _L1!!... day of June 2005.
M;:~~-
otary Public, State of Texas
~'.~~.
\~r.~)\
DEBBY WOLVERTON
Notary Public. Slate ofTem
My Conwnlslion E>1>1re1
vtf'-~'
:~~D'ft/ FEBRUARY 13, 2009
Case: 15-70035
Document: 00513265976
--
Page: 131
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. ATTACHMENT 13
Case: 15-70035
Document: 00513265976
Page: 132
------FEIH!1-1900
P,e<:!
elill~-~ Dll'Alt
WT OJ 'Jiii: DEASUaY
Vau.u OF AlA...dOI.. 'IOJIACCOAND l'la!ADU
..
..
.... latJ
REPORT OF INVESTIGATION
-:
--'II'"-- -
-'U"l"I
Houtton Alld Dlvi1lan
SptlCial Agent In Ohlfp

.iCMISIDn Field DiYlllon
11a...,uw ...., .. _ --
- -.
t=V~1
1'eportaos
--=
*dllon CQUnly Triple Hornldc CFI Con9Ullallon (Oetteral ca)

exD RDliiiiii
78203M1.0001
ltlUfmDJ ft' {ntl1 WtllQJ/bJ
Spacilll AQellt, Ho1,1810n Ill (Arson) Flelcl otftce
...
up Su~. Houall:ln IQ (Arion} Fla~ ~

AffllOVED BY tnW ()fftt.J
Special A;nt In Cha9, Houston Field Dlvlllon
\,_.,~ON or ACfl'iITY:
Request for A TF ccrimc.d F'ue Investiptor (CPI) assistance by the Tnas Attorney Ocnml and the Madisott
Couat]t District Attorney.
SYNDPSJS:
.
omce
On April 26, 2001 Sergeant Forrest Mite.hell ot the Texas Attor=y Ocncral't
contacted ATF ri:quesdnJ the
~ of a CF1 in m inwltipion of a uiplc homicide mMadison County, Texas. OD Apn1 26, 2001 SIA CFI
. David Oppe:nmm met with Madi.son County District AUOmcy and the Texu AG office
...
NARRA.nvJ:r
...
1. On Septcmhc::r 6, 2000 at spproximarely midnight the Madison County Sbcri:trs Office .rapoaded 10 a domestic
dispute at 1be mddcm:e of Tammy Wllkenon. The suspect wu Rafael HolidaYi Wilkerson's cstruaed
bo)'fi:illld IDd 1be fadle:r cf their youngelt child.
...
2. Holiday, while under a rcnrainina otdct, forcibly catered W'tlkerson's n:siclencc shortly before midniahl oo
~ 6, lOOJ. Wilkerson wu at homo with her three childmt Tiena Lynch 1 yoa, Jumim DupauJ 5 ,-oa,
alld Jusd.cc Holiday l ya.a.
3. W"'Ukcnoo was Ihle to llOl:ify h ptmUS lbal Holiday wu at the house and d=y rcaponded. At one point
Holiday held a &1m. to the grandmother, Beverly Miu:hc:IJ, and farecd her husband to drop his p ,
...
002506
...
...
..
Case: 15-70035
Document: 00513265976
Page: 133
P.B3
"'
- -.
' '
Houl10n ~ Dlvi1lon
..__
FV-01
R~OOI
ttiU at IWiiiiitlfidN1
Madllan Counly T Hanticl CFI Can~ CGtnnl caN)
I;iwf
atiNOAiiii
"'
7G03H1~1
...
NUMl~l
4. Holiday made tbrncs of'ldlllna everyone pze&llll. He also made threats ofbmnin& evezyone in the house.
Wilker90D aid b9r father wtn able to escape ud ~atact the authorities.
S. VJ.th the cbildnm. iD the ,'flhicle Holiclay poured psoline on the W" and attempted to set it on ftri=. There 'WU 11ot
miougb fUcJ to IUltlin ttw fire. Holiday tha took the pndmotbar at gunpoint to her house and forced, her to.
cmy two (2) - 5-pllcm uas cans fblJ of gasoline and 1hcy ~ to W-llkenon's. Holiday then held Mitchell
at P.Dpoint IOd fbrccd hH' to pour the paollila in the home as the children sat o~ the c:ouch.
...
6. The Guolim t\mles ignited ed the cbildnn were unable to escape. Holiday and Mitchell did manage to ucapc.
When the Shcritt1 Dcpltty arrived the n:sidcmce was on fin. Holiday rammed the patrol unit iD m attempt to
Holiday was anested and chlll"led with Capital
Murder in the doaib oftb, children.
...
1.
...
8. On A.Pril 24, 2001 the Texas Attomcy General' Oflicc iequcstcd assistance from an ATF CFl to review the fue
...
e5eape. the pmwit ended when Holiday wtccked the vehicle.
and tbs case in!omwion.
'-(. On April 26, 2001, SIA - CPI Opperman met with Madison Couaty Distdet ~Bill Bemu:tt and Sergeant
Porrcst Mi1dlcll of the Tc."XU At:tomcy Oenenl's Office/ Prosecutor Assbtance Dlvmon.
~
r
-
...
...
...
o. SIA Oppmman was asked to asslsi In dcft:nnining the cause ofthe ignitian ofthD gasoline tumes.
Opperman
advised the DA that the pilotecfiiatural pa stOVe and other appliances ln the.- could not be ruled out u
lpitlon sources.
11. SIA Oppe:rmaD re-~ Beverly Mitchell u to the eve:nu that night. MilClmll Mid that she bepn pouriDg psolino on a =cllntZ l,a tho llvinl room. md uavolod along the wall Ind into tlle adlity room. Fn>m the utility
:i:oom she went in to 1be beckoom w~ she emptied the first gas can; Holiday wu holding a bandi'U' and rlfle
u be lemied on a table in between tbe mcliner uui the stD'\111. The other ps cm was to 1he kiumen Mil' the door.
Mitcbell said the children were ~tting on the couch which was po1itioned to separate the kitcben and the Iivillg
room.
12. Mftchc:U said tbar q sbe exi1l:d 1he bedroom to retrine die oth=- ps can die ftn: jumped llt lw and the cadre
livma room. wu on &e. Al 1he 'lime the tumes ipited she wu &Cf09S the roop:i ftom the children. Holiday had
to Nil past the ~hildnm to =scape. Mitchell~ to the bedroom and jumped from a window
1.3. Holiday attempted to fatt.e Mitchell to leave wim mm but lbe ni'uJed. The Sheri1f' I Deputy arrived and
Holiday &Uemptod to
14. Afta'tbe
tscllpC
u.mcw ()ppcnrw1. Mitchell (AQ Iave:sdpror) and DA Bennett apiD diacuued the cue. Opperman
l\lacated ~bing proeecution with Holiday mllklnt the 1hn:m.s to bum ewryone in the house, Holiday
002507
Y'
Case: 15-70035
FEIHU-19ae
Document: 00513265976
P,B4
.....
"-port ()(13
r"
NUWitlti
fmdaa Mitcball to pour lhe saolim. and the that the fimu!a may have prermmrely lpited or wetC intendonally
Mt by Holiday. The Wrt that 1hc fumes igcited before Holiday waa ~ u in'elevant, and take the apprcaoh
that lw wu commhdn& the overt aci md he lilrcady aid he wu aolng set the ftre. lt wu also suuClted to
include possible leaer charpa in the juzy imtructfon to III ow the jury to convict him llDd not llmil lt to capiial
..,. . ~_..,,T_--
......
HOUltcn FltlCI Divlalon

FY-01
Blille?
Page: 134
murder. Oppemwi sugemd.that this approach should mke the defense out of the az'iWDCni by1hc proseeurlon
ac:fmfUiDa IA appliance rr.ay have premalUrely ignited the t\imes.
lS. Tbe Dis1rict Anorncy micwcd the wonfins oftbo hMlictmem l1ld advised that this approach would wort.
16.. SIA CFI Opperman bu 11eintainied contaet widi the MadillOn I>tstrlct Atunncy' 1 Office and has offered
uitltaDCe durJna the tri& which is scbedu1ed in November.
.
.._.
TOTFt.. P.B4
() fi2508 .
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Document: 00513265976
Page: 135
ATTACHMENT 14
Case: 15-70035
Document: 00513265976
Page: 136
:-:
Ha~
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05 05 04:42p
p.3
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State of T es:as
County of Hanis
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STATEMENT OF GERALD BIERBAUM

BEFORE ME, the undersigned authority personally appeared GERALD BIERBAUM,
and~
swom, stated as follows:
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My name is Gerald Bierbawn. I am over the age of 18 and have
knowledge of the matten: di$cussed within this affidavit. I am an attorney

licenced in the State of Texas. The bulk of my practice lies in post-conviction
habeas corpus of death penalty cases, both in state and federal court. Jn this
capacity, I have considerable experience in both supervising and actually

conducting the factual and.legal basis for investigating evidence relating to the
punishment phase of a capital case - termed a "mitigation investigation." Prior
to obtaining my law licence, I worked as an investigator on eapfial cases, both for

attorneys in the State of Texas, as well as the ACLU mLos Angeles, California,
undertaking factual investigations for mitigation evidence.
I have been retained by Alex Calhoun to undertake the mitigation
investigation in the Raphael Holiday post-conviction writ. & part oftbis
investigation, I have reviewed the evidence presented during the punishment'
phase of trial, reviewed witness statements obtained through discovery of the
District Attorney's files. interviewed the psychiatrist and reviewed the tile of the
psychiatrist who testified for the defense in this case, Dr. Fred Fason, reviewed the
file of mitigation infonnatlon collected by the defense through the investigator,
Kay Saunders, and mitigation specialist, Gerald Byington. as well as personally
lnterviewed several members of Mr. Holiday's immediate and extended family,
and family associates.
Through my ieview of the records in. this case, as well as interviews with
family members and associates of Mr. Holiday, I have determined that there is
evidence which.raises a concern regarding the possible existence of organic brain .
damage. Mr. Holiday bas a reported a history of ''black out" periods. These
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"black outs" are com>borated by a recorded statement made by one ofMr.

Holiday's associates, Robert Lowery, to police shortly after 1he offense. This
recorded statement was disclosed to the defense prior to trial and was located in
the mitigation expert's case file. I have also interviewed Mr. Holiday's family
members and learned from two of bis younger half-brothers of incidents in which
Mt. Holiday had "dazed out"
There are also incidents in w~ch Mr. Holiday may have received closed
head injwies during bis childhood. One of Mr. Holiday's brothers revealed an
incident in which Ml. Holiday fell out of his seat at school and hit his head. This
apparently was a big deal at school Mr. Holiday's mo~ has reported to
~yself or Mr. Calhoun that Mr. Holiday was struck on one oceasion in the head
with a metal pipe as a child. I have also determined. from interviews with Mr.
Holiday's family memben, as well as fiunily associates having knowledge of Mr.
Holiday's childhood that he was frequently subject to physic.lal discipline
involving strikes to his head.
Mr. Holiday's school records demonstrate sub-par academic pcrfomiance

-primarily D's and F's, and it was known (and presented at trial) that Mr.
Holiday had problems reading which were labeled as "learning difficulties."
Finally, Mr. Holiday has reported a history of migraine headaches
includina headaches that las for several days and prevent day to day activity.
This combination of factors, most predominantly the existence of
"blackouts" raises concerns about poible brain damage. Other instances such as
injuries or blows to Mr. Holiday's head, are also factors which may be a cause of
organic brain damage. Mr. Holiday's low cogoitivc :functioains at school is also
a motor which may suggest organic impairment.
From my review of the inforination provided to me, as well as
independently learned by me, it appears that Mr. Holiday was not specifically
~aluated for brain damage by defense counsel during their investigation of this
case. For this reason, the possibility of brain damage cannot be ruled out.
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Based upon these factors, I advised Mr. Calhoun of the advisability of having Mr.
Holiday evaluated by a neuropsychOlogist. I also contacted, as did Mr. Calho1JD. Dr.
Steven Martin, a neuro-psychologist.. After having advised Dr. Martin of the information
I had learned, Dr. Martin advised me that there is evidence which suggests the possibility
of brain damage, but that it would be impossible to diagnose Mr. Holiday without neuropsychological testing.
It is my understaiiding that 8eVeral weeks prior to the vw'rit application's

due date, Mr. Calhoun requested approval of funding from the state habeas court
in order to retain Dr. Martin's services. This is the standard practice among state
post-conviction writ attorneys - to seek pre-approval of expenses for experts and
investigat()rs: It is also
understanding that as of the date of this affidavit,
funding has not been approved, and for that reason, Mr. Holiday has not been
evaluated. For this reason, it is impossible to plead the existence of brain damage,
or to plead with any specificity the nature or effect of such brain damage, if it does
my
exist.
Furth~,
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afffiant sayeth not.
L~
SUBSCRIBED AND SWORN TO, BEFORE ME,
on~day of May, 2005.
flnu2. ~-- ~
NOtafY.Public, State ofTl!XaS
GLORIA e. REBOLLOSO
!KV COMMISSION E)(PIRS8

.
AldUGOll
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ATTACHMENT 15
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Gerald Bierbaum
2137 Chestnut . Harrisburg, PA. 17104
(702) 945-6017
geralcl77084@gmail.com
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10/26/2015
.I
Dear Board Members,

I am writing to urge you to grant clemency for Raphael Holiday.
I worked on Raphael's state writ with Alex Calhoun. I came to know him, most of his family and
many of his friends and supporters. I also studied the details of his offense.
Raphael's acts resulted in the most horrible consequence one can imagine - the death of his child
and stepchildren. His regret about the offense, the fights with his baby's mother and his
avoidable participation came out every time I spoke with him. Raphael is not great with words,
and takes a while to contribute in conversation, but he does feet for what he did. He wishes and
weeps.
Raphael fought with Tammy. He brought accelerant to the house in a very disturbed attempt to
resolve their fights. He did not intend to start the fire with the girls in the house. But the fire
ignited and the girls died. Raphael will pay for his acts by being incarcerated until the day he dies
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but I am asking you to put that day off.

Raphael came to his troubled relationship with Tammy by seeing troubled relationships growing
up and by being debased and humiliated into thinking that he was not worthy of a "normal"
relationship.
Raphael's mother actively assaulted and debased him from gestation forward . She drank
turpentine and whiskey while pregnant to attempt to abort him. He endured that and was born
only to endure constant negligence and abuse until late adolescence. Raphael's care-givers
brought him to bars as an infant, filled his bottle with alcohol to stop his crying and had sex in
front of him with the belief that he would not know what they were doing.
As he grew, they disciplined him with punches, kicks, and derogatory jabs. As the family grew,
both Rapheal's mother and his stepfather saw that he did all the menial work around the house
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including changing his brother's diapers, cleaning up their spills and taking their beatings.
Raphael belonged only to serve the family and constantly heard that he was not one of them; his
stepfather's children were the only children in house. Even to Rapheal' s mother he was nothing
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more than a servant.
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His mom and stepfather frequently physic:ally fought until Raphael became a teenager. He saw
domestic problems resolved by violence, threat and assault and he brought that model of a
relationship with him when he left home as a late adolescent; only a couple of years before he
met Tammy.
Raphael had many, many good days and many good deeds. He took jobs and earned money to
support himself and Tammy and he constantly cared for his brothers whether at home or not. But
unfortunately, he was not bright enough or capable enough to completely abandon his past.
When he and Tammy had trouble, and when he felt threatened or abandoned, he fought back,
the way his family always had; by drinking and lashing out.
Raphael did something unspeakably careless and risky of his own volition . He generated pain for
Tammy, her extended family, his own family the whole community and himself. I beseech this
Board to consider not only the pain that Raphael spread but also the pain he endured, and did
not have the wherewithal to avoid, throughout his whole life. I implore you to recommend a just
and fair life sentence.
Warm regards,
Gerald Bierbaum
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GERALD BYINGTON
PAGE
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County of Travis
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Affidavit of Gerald L. Byington. LCSW
My name ~s Gerald Byfugton. I am over the age of eighteen. I have first~hand

knowledge of the facts in this affi.da'Vit.
I worked as a mitigation specialiSt in the ttial of Raphael Holiday. Kay Sanders

worked as the investigator. Kay was hired o':1 the .case prior to my :involvement I believe
Kay was tO share :information and interview reports with me as well as with trial e<>unsel
I did not feel it wu my pllce in the trial team to direet Kayts efforts. I did not supervise
her in interviewingMr. Holidayts family or :friends.
On the trial team, I coordinated and reviewed records collected and helped trial
counsel understanding the mitigating impact 6f the evidence Kay Sanders developed.
I have reviewed the affidavits deVeloped by writ collDSel. This information varies
significantly from the information Kay Sanders developed or that was kn.own to the trial
team. at trial.
The information that Mr. Holiday was routinely physically abused by his
mother and stepfather, that he was exposed to p~ental drug and alcohol abuse ~d
fighting. that he
was treated ~e a family servant and made to do housework and
parenting chores for his brothers, and m?stly that he deeply felt rejection from his
placement and 1reatment by his family was important mitigating evidence. Similarly, the
cycle of abusive treatment received ai:.d expressed by Raphael's mother and grandmother
was important mitigating evidence. The inter generational abuse would have sho'Wll the
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GERALD BYINGTa-1
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jury .that the forces that corrupted Mr.
Holiday were not specific to him.
I. would have strongly advised trial counsel to put this information in .front of the .
jmy had we developed
it. I did not putposcly
.
. avoid
. developing this information.
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NOTARY P'CT8UC STA.TE 01 TEXAS
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State v Holiday
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Rl!PORTER'S RECORD
VOWMl!'--_ _.oP_ _ _voLUMl!S
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TRIAL COURT CAUSI! NO. 10,42) - 10,425 - 10,427
The State of Texas
In !he District Court of
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Walker County, Texas
vs.
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Raphael D. Holiday
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278th Judicial District
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---------'P~BNT_PHASB_ _ _ __
On the 18th day of June, 2002, the following

proceedings came on to be heard in the above entitled
and numbered cause before the Honorable Jerry A. Sandel,
Judge presiding, held in Huntsville, Walker County,

Texas;
Proceedings were reported by Computer Aided
Machine shorthand.
June 18th, 2002
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Huntsville, Texas
A-P-P-B-A-R-A-N-C-B-S
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Mr. William C. BeMett

Distrk:t Attorney
W7 Courthouse
101 W. Main
Madisonville, Tens 77864

JQ!LT!!..gfilll_Q!'JEXAS
Mr. Charles M. Cobb
Mrs. Laura Popps

#~& :O~Tz"/:sGeneral
Austin, Texas 78711-2'48
_FQ!L~~E_Q!'JEXAS
Mr. William F. Carter

Auorney at Law
102 East 26th S1reet
~:I:'ea~N~ 1~~~~8oo
-andMr. Frank Blazek

Smilher, Martin, HendCfliOn & Blazek
Attorneys at Law
1414 11111 Street
Huntsville, Texas 77340
_FOJLT~DANT
June 18, 2002
Page3
(Proceedings in open court)
nm COURT: Is the State ready?
MR. COBB: Yes, sir.
THE COURT: All right. Bring the jury'
(Jury in the box)
THB COURT: Welcome back. Quite amazing.
really that ya'll are able to keep up with the location
and the time. Well, we are now ready to commence with
evidence on the punishment phase of the trial. And both
sides have announced that they are ready to go and I
will ask the State to proceed.
MR. COBB: Thank Your Honor.
~O~STATEMENT
ON PUNISHMENT
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May it please the Court, ladies

and gentlemen, counsel. You know, it has been more than
a month since some of you heard about the other issues
in .this case. What you have be hearing for the last few
weeks about the guilt issues in this case is something
that I know you have kept in your mind and in your heart
and it's important that you bring that with you into
this stage.
You were told injury selection that there would be
two stages of the trial. And when you completed your
deliberations and found the defendant guilty of capital
murder that you would be then presented the issues about
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Page 4
punishment, the two special issues which you were shown
chans about. And I think right now what I really want
to do more than talk to you about the evidence you're
going to hear is just remind you for a few minutes about
those issues and how you have to approach them . I want
to talk to you just a little bit about evidence, but
before I certainly would want to begin with a reminder
that the first issue is that first special issue about
furore dangerousness. You heard so much about that in
the beginning. About things you could look at, evidence
you could consider in deciding whether that should be
answered either yes or no. Evidence that you heard
about the defendant and the acts that he committed that
brought us here, other bad acts that got him to that
point on that night that he murdered these three
children and committed the other offenses, which
eventually through the next couple of days and reminding
you about what you did hear, you will see that that
involved a large number of criminal offenses, separate
ones. The kidnaping, to assaults, the threats, and
That's not all I expect you to hear.
I think in regard to that first issue about future
dangerousness you're going to hear some other things
about the defendant. And you haven't heard too much
about him as a person in relation to this series of
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Eddie Nickerson.
And so James Nickerson is related to Eddie
Q And before coming to Huntsville where did you
Nickerson?
I moved here in the middle of August, I 967.
3 reside?
4 A Immediately previous to that I was minister of
A That's his brother.
5 a twelve hundred member church in Victoria, which is in

6 South Texas. And inunediately before that I was minister
7 of a smaller church in Sinton, Texas . And that was my
Q James and Eddie are brothers?

A Yes.
MR. BLAZEK: No further questions .

MRS. POPPS: No further questions.
8 first church after I got out of seminary.
THE COURT: You can be excused.
Q In Huntsville you were a minister at what
IO church when you arrived here'!
MR. COBB: The State will rest at this
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time.
THE COURT: Let me ask the jury to be
excused for just a few minutes, please.

(Jury out)
TIIE COURT: The defense, are you ready to
call witnesses.
MR. CARTER: We are, Your Honor.
me COURT: Is there any need to continue

to break? I just did it out of reaction to the State
resling.
MR. BLAZEK: I guess - he 's out to cheek
and see if the witnesses are here.

THE COURT: All right, be seated.
(Short recess)
THE COURT: Bring the jury.
A
Q
First Presbyterian Church.

And how long did you serve the community in
that capacity?
A
Q
Thirteen and-a-half years .

And you went to work at the prison system as a
Chaplain is my understanding. You were the - what was

your role at the prison system after your ministry at
the Presbyterian church?
A
When I went there on April 1st, 1980, my
primary role was to be the Minister, Chaplain to the

twenty-two hundred inmates there at the Walls Unit. Can
I use the term Walls Unit, not Huntsville.
Q Sure.
A
Because it's all walls. Twenty-two hundred
inmates at the Walls Unit. We also had the five story

Page 96
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(Jury in the box)
THE COURT: be seated. The defense is now
I hospital that was -- when we had just one hospital for

2 the system everybody was brought here. We had the
3 going to start calling witnesses to put on evidence. I
3 psychiatric unit and then we had the lock up unit fur
4 guess you heard the announcement by the State that they
4 cases, problem cases from other units. Men, women -
5 rested their case in co1U1ection with this part of lhe

6 trial. You may proceed.
MR. BLAZEK: Reverend Carol Picket.
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REVEREND CAROL.!!9ffil:r, after having first
been duly sworn, testified as follows :

DIRECT EXAMINATION
EXAMINATION BY MR.~K:
Q Reverend Pickett, would you tell your name to

the jury, please'!
A
Carol Lamar Pickett.
Q And could you give the jury a little bit about
your educational background first?

A
Well, J finished twelve years in ten years of
education so I only have ten years of public school.

Pour years of college, three years of graduate school
and seminary. Two more years getting my Doctorate and
one more year when I got my Doctorate in Clinical
Pastoral Education at a hospital in Dallas.
Q Now, if I recall you been in the Huntsville
community probably since before the early '?O's maybe
and back into the '60's?
5 men primarily who got in trouble on other units, they

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would transfer them to us for solitary, ad-seg.

Q So refresh -- that was April of what year that
you started here?

A
1980.
19807
A Yes, sir.
Q
And you retired from TDCI what year?
A At the end of August of I99S.

Q
And other than your ministry have you held any
other positions in public life in the Huntsville area?

A
Yes, sir.
Q Okay. Describe the other roles that you have
had in Huntsville?
A
Well, first function, first lhings we do is to
merge the two ministerial places. We had one for one

group of people and one for the other group of people
and we decided to merge that. And after awhile I ran
for the school board. I was on the school board of
Huntsville !SD. I was President of the school board for
several years. I was on the board that built the new
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1 hospital On 1-45. And I have served twelve years as
2 President of Huntsville Alcohol and Drug Abuse program.
And I take it even though you're retired from
4 TDC you're still active in some programs or at least one

5 program here in Huntsville, if I recall?
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A Well, it's the usAJump Rope program.
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A Right.
And what program is that?

And explain that to the jury.
A Right now I'm the executive director of a
11 national organization that head quarters here. And it
12 'came out of Jump Rope for Heart, which is a school for

13 mostly kids. But we met several years ago and we
14 decided that we needed to go beyond that into developing
15 camps throughout the country and competition and
16 workshops and making it a health and recreation

17 combined. And we worked with American Heart Association
18 on that, American Dutch League and all the heart
19 associations in all the states. We go all over the

20 country for that.
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Q And in your fl&en years at the Walls Unit did
22 you develop a certain knowledge of the prison system,
23 prison employees and some of the functions there at the

24 Walls Unit?
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A Yes, sir.
Page 98
And did you develop a knowledge of what went on
in the death chamber there at the Walls Unit'?
A Very much.
Q Okay. Is that the correct term for it, the
death chamber? I have heard some people refer to it A Well, we call it - two places. There is the
death house, which is the actual room where the
execution takes place. And the death chamber are the
seven cells that are connected to that where people are
placed as they await the hour that they are sentenced to
die. That's a term that we developed ourselves.
Q And when you took your position in 1980 the
death chamber was not active at all was it?
A No. We didn't even -- most of us didn't even
know it was there. It hadn't been used since '64 and
nobody talked about executions. The only thing we knew
is that the rumors we heard about Old Sparky but_that
was it. None of us, nobody that worked there at the
prison had ever been in on an execution. We didn't talk
about it, it was never discussed.
Q And a few years after you were there the topic
came up again, did it not, and executions began; am I
correct?
A Yes, sir.
Q Because they occurred at the Walls Unit were
Q
1 you called upon to participate in some capacity in the
2 administration of the death penalty in Texas?

3 A That's correct.
4 Q And what was your role in how the death penalty
5 was administered in Texas'?
6 A My role was basically two-fold. One of them
7 was - an official capacity, to be the warden's
8 representative during the time that the inmate was at
9 the death house. Because the warden would greet him
10 when he came there and then he would not come back down
11 until midnight. And the warden would tell him that if
12 you want anything this is the person you have to go
13 through to get to me. Anything you want you go through
14 me. And the other one was to be what would be either a
15 pastoral or spiritual or psyche psychologist, what ever
16 you want to call it, whatever it took to do. The
17 warden's primarily desire, primary commission to me was
18 do whatever it takes so he won't tight coming out of the
19 cell and don't fight -- and he won't fight getting up on
20 the table.
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Q And, if you could, describe generally the
22 events of the day leading up to an execution in Texas.
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MR. COBB: Your Honor, the State - there
24 is no relevance to what they have done in the past.
25 This witness is testifying about some things that have
Page 100
1 no application in this case and it's just not relevant.
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THE COURT: Sustained.
3 Q (By Mr. Blazek) Could you describe - not
4 going into the events of the day, but how an execution,
S what a person would see if they were to see an execution
6 as it's being conducted.
7
MR. COBB: Your Honor, the sole issues are
8 future dangerousness and mitigation. This is not
9 relevant.
10
11 Q (By Mr. Blazek) Have you come to know the
12 people that have been called upon to administer the
13 lethal injection to the defendants?
14
MR. COBB: Your Honor, again, none of this
1S is relevant.
16
17 Q (By Mr. Blazek) Have you come to know the
18 family of the victims who have come to see the
19 executions carried out'!
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MR. COBB: Especially in that regard, Your
21 Honor, it would be totally irrelevant.
22
THE COURT: Sustain the objection.
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MR. BLAZEK: Judge, we would like to make
24 ourBiU.
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THE COURT:
All right. The jury will be
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1 excused for just a few minutes while we take testimony
2 outside your presence. So it will require probably

3 fifteen minutes or so. If you want to go back outdoors
4 do so now. We can carry on the business at hand.
5
(Jury out)
6 Q (By Mr. Blazek) Reverend Pickett, if you would
7 describe or outline the events of the day in a typical
8 execution that you will be a party of at the Walls Unit?
9 A We were always notified as a thing to do, you
10 know, notified when they leave the death row, which now
11 is in Livingston. And we are to be in the death
12 chamber, death house when they get there. When the unit
13 officers from Ellis or Polanski, wherever they are
14 coming from, they would bring them in and my
15 responsibility would be to inside waiting to be the
16 first face they saw. Most of them had been there so
17 long or had been so long that they wanted to s.ee
18 somebody they didn't know. I never went to death row,
19 that wasn't the policy. So I would be standing there
20 and they would come in in shackles and chains and their
21 hands and feet tied with -- and with cuffs and the belt.
22 And lhe sending unit would then transfer the party to
23 the Walls Unit. And the Walls Unit officers would take
24 over and take off the chains, take off the handcuffs,
25 take off the belts and totally strip the individual of
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all his clothes and do a complete body check. The
entire body, all crevices and openings for possible
weapons or whatever. Then the Ellis people would leave
and he was now assigned to the Walls Unit. He was
immediately placed -- he is immediately placed in the
cell. The cell was right next to the visitor's cell,
which is eight feet from the door lhat goes into the
execution chamber. And that was where he would spend
his time. And there would be with me two guards there
to do all the security and I would do everything else
that wasn't considered security. Whatever that would
take to help him through that day to be -- for whatever
else you want to call it, to be the last friend that was
not wearing gray and to try to see that he would accept
the fact that this is probably going to take place. And
also to be honest with him, to help him as to what was
going to take place and how.
We - at that time we would allow visitors there.
Visitors no longer came there but I would handle the
visitors. I would explain to him the total details of
what would take place when the hour came, detail by
detail. We found out from the very beginning that they
were all, so many of the men who were sentenced to die
had misconceptions that were gotten from either
newspapers or magazines or Discovery Channel. Or they
June 18, 2002

Page 103
1 had read about executions taking place in other states,
2 about the way other states did it, and they wanted to
3 ask a lot of questions. They asked the questions and I
4 would be honest with them and straight forward and tell
5 them the straight -- the truth about what would take
6 place. And two hours before the time I would explain to
7 them in detail the process, the telephone calls that we
8 would expect from Austin, the time they would have from
9 then on, if any. We would practice -- I use the term
10 practice. I would assist him in his final statement to
11 get the words right that he wanted to say, whatever he
12 wanted to say. And I would help him sign and figure out
13 all of his paperwork as to what he wanted done with his
14 body, what he wanted done with his money, ifhe had any
15 left, what he wanted done with his property. If he had
16 written any letters, you know, I would take the letters,
17 I would mail the letters if the event went through. If
18 it didn't I would give them back to him. And then I
19 would explain to him in detail the whole process of
20 injection of needles and tie down team and lhe events
21 that were going take place.
22 Q And that would lead you up to the actual event,
23 itself, would it not?
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A Righi.
25 Q And rhen what were the typical events that you
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Page 104
would see in the administration of the death penalty
after those preliminaries?
A Well, when midnight came or when the time came
to be executed some of them asked time just for
different things. Maybe a minute or two, which was -the warden was always generous in a allowing that. But
then I will tell him - this was our procedure. I would
tell him when the warden gave me the signal it's time to
go. A~d that we had talked about that and he knew that
that was it. Regardle_ss of what time it was, it's time
to go. The auards would unlock the doors, the heavy
chain link locks, plus the big old - as you see the old
iron doors, very heavy. And soon as they were unlocked
I would ask him to follow me. And we had discussed the
possibility of resistance. And I told them all it
doesn't do any good to resist because you're going to
have to go. And there will be four guards, five guards,
and just follow me and we'll go in there together. And
all of the ones that I did followed me eight steps into
the death chamber and climb up on the table and lie down
facing the direction that we had told them in advance.
They had nine straps placed upon there - on their body
in different places. And they were put in place by the
guards, the tie down team. Two of which were people who
has been with me all day and he knew the man pretty
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well. I mean, soon as he was tied down the warden would
always ask him if there is anything uncomfortable. And
if there is, was a crease in a pants leg or crease in
the shirt he would -- they would adjust that. Then the
warden would, if he had some special request, the warden
would step out and there were some certain things that
we would do just between he and I, just between he and
I. The warden would come back in. Two men would step
in from the door, which was just to the left of the
gurney or the table, whatever you want to call it, and
they would begin to administer the needles, insert
needles. They would insert one needle into lhe left ann
and - near a major artery here and then they would
insert another needle in this arm. Originally they
would also tie down the hands either with tape or gauze
so the hands could not move in order to make it easier
to get the needles in. Sometimes it was easy to get the
needles in and sometimes it was not. Sometimes it took
very few minutes and sometimes it took a long time. And
there was nobody in there at all during this period
of - except the warden and I and these two medical
technicians. When they finished !hey would step into
the other room, start the flow of salt water, saline,
which was just to clear out the veins to be sure it's
working. When that was done the warden would give the
Page 106
1 signal to the Major who was in another room and he would
2 go outside and bring in the witnesses that the inmate
3 had requested, the witnesses that - the family members
4 were there, the witnesses from the State Attorney
5 General's Office and local Sheriffs Office, Justice of
6 the Peace, so forth. They would be brought into the
7 witness area and a big, heavy, heavy door would slam
8 shut. And that door was never to be opened until the
9 process was completed. No matter what took place it was
10 not to be opened.
11 At that time the warden would turn to the man and
12 ask him do you have any last words. And some did and
13 some didn't. Most of them had discussed it with me and
14 so I would know when the end of his time was not - that
1S we set a time but we cannot, we did not want to ever cut
16 a man short if he had final words to say. And the
17 warden was very defmite that he was never going to give ,
18 the signal to start the lethal process until the man had
19 finished what he wanted to say. And most of the time I
20 knew his final words. And most of the time he would
21 look at me since I was standing right next to him. And
22 the very beginning most of these men did not have family
23 there and they wanted to maintain contact with somebody.
24 And I placed my right hand on their right leg. And at
25 their request, that was their request, for they just
June 18, 2002
Page 107
1 wanted to feel that somebody was - somebody was there
2 that was not in the process of killing them. And so
3 soon as he had finished his last words then they would
4 look at me and lhey would either give me a signal lhat
5 we had agreed on or that they had wanted and then they
6 turned their head most of the time. The warden gave the
7 signal to the -- went through - there is a two-way
8 window in that room. And the men who - the
9 executioners, they could see when he gave the signal and
10 they would immediately start with lhe first drug. And
11 the first drug would most of time put them to sleep
12 within seven to twelve seconds. Then when that was
13 completed, that drug was through, then they would
14 administer another one and then another one. Warden
15 would wait a few minutes and then he would knoct on the
16 door and call in a doctor. The doctor would come in and
17 do a brief examination and give the tune. He would look
18 at his watch and give the time of death.
19 Q Reverend Pickett, have you come to know in your
20 years there at the prison the people that were called
21 upon to administer the death penalty, carry out that
22 role in the execution team'!
23 A Yes, sir.
24 Q In your experience based upon what you saw that
2!l role of carrying out those executions, does that take a
Page 108
1 toll on the individuals that are called upon to perfonn
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Very much.
Q Could you describe in general terms what sort
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upon to perform the executions?
A In the beJliMing, of course, we had never -none of us had never done, we didn't know what to face,
what was going on. In the beginning most of the guards
that we had down there, they were doing shifts. And
some of them just being - just being there would cause
them to become nauseated, very sick and had to be
replaced. Just have to get another guard to come in.
As we progressed and in developing a better program
which would work better for the State -- and also my
primary concern was better for the inmates, is that we
started weeding out; to use a plain expression, those
that we felt like were not going to be able to be there
through the whole process. Because it was much better
for me to have the same people there through the whole
process. And we found that there were several of them
who became very well versed and th.ey did a very good
job. They were excellent people. They were very well
in tune with the program and the policy that the warden
and I had developed as to what was to take place during
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Case: 15-70035
State v Holiday
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that day. And then after a while many ofus began to
feel worse. We began to see people quit. We began to
see guards refuse to do service in the death house. One
particular got very ill in the middle of the night and
he saw in his mind's eye the faces of every person that
he had been with and strapped down on that table and he
quit. And following him practically all of those better
people that we had trained and worked with, they sought
other employment, they left our unit. We can see - I
could see it in our wardens that it did take a toll on
them. It was difficult for them to come to work the
next day. It was difficult for us to come to work the
next day. You just don't watch people die andjust say
let it go because these were people.
Q In the course of your years there at the Walls
Unit on these executions, when these executions were
perfonned did you get to know the witnesses that came on
behalf of the victims family as they came to see the
executions as well?
A Yes, sir. I got to meet some of those and also
got to meet other people who were part of other
executions that I was not there.
Q And did you come to have an understanding as to
whether or not the death penalty gave them any relief or
solace for their grief?
Page 110
1 A I can quote a couple of girls who came to see
2 their mother's killer be put to death and after visiting
3 with them at 3:00 o'clock in the morning their words
4 were "my children will never feel their grandmother".
5 This doesn't mean anything, it doesn't bring closure.
6 There is no such thing as closure. I have talked to
7 people in Houston and who have been relatives of people
8 who were murdered and killed and the person has been
9 executed and they have told me they don't feel that it
10 did them any good at all. Because they still miss them,
11 they still think about them. The only thing that it did
12 is it cut down on their trips to death row.
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MR. BLAZBK: Judge, that's our Bill. We
14 would specifically proffer his observations of the
15 routines leading up to the execution. I think we think
16 it is appropriate for the jury to know that the inmates
17 are transferred from. death row to the death chamber and
18 the death house. We think it is appropriate that they
19 know the inmates are searched, that the inmates spend
20 time with people leading up to it. That they are these
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arrangements made where they are allowed to discuss and

prepare and understand the process. We think it's
appropriate for the jury to know that they walk from one
room when the time comes into the area where the
execution is to be completed. The jury is entitled to
June 18, 2002
Page 111
1 know who is in that room. That the jury is entitled to
2 know they are laid down on a bed, that needles are
3 placed in their veins, that they are allowed to make a
4 last statement. That they are allowed, if they request,
5 to have someone touch their leg who is not involved in
6 the execution to have contact with them as they are
7 being executed. That they are allowed to know how the
8 lethal injection is administered, first saline and then
9 sedative that helps them go to sleep, and then the
10 toxins that cause their death. And then a doctor is
11 then ealled in to make the detennination. We think this
12 is all important infonnation that the jury needs to
13 know.
14 Further, we think that the jury is entitled to know
15 how the administration of the death penalty affects the
16 people that it does. We believe that this witness is
17 competent to testify that he's observed and knows these
18 people and that it has taken its toll, a physical,
19 psychological toll on them when they administer it, and
20 that it has had this effect that he has been acquainted
21 with.
22 And finally we think they are entitled to know that
23 there - he's talked to victims and that the victims
24 have not been assuaged and healed by these executions.
25 That their injuries and grief is still there.
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Page 112
So we would offer that individually, each of those
separate proffers, as competent evidence and relevant to
the issue of whether or not life or death should be
imposed. We think it goes 10 the mitigating and
militating issues that the jury, in order to decide
whether or not the death penalty is appropriate, has to
have some understanding about what the death penalty is.
And we think there is a big difference between some
imaginative or speculative idea about what the death
penalty is. And we would point out there have been
cases very recently that courts allowing prison
officials to testify about conditions in the prison when
those issues are relevant. There was a Court of Appeals
decision that I read in the latest prosecutors -- the
TCDLA monthly magazine that came out where prison warden
was allowed to testify for the State about what is
prison like in response to an applicatio11 for probation
and, you know, so that's going on in Texas courts now
with the approval of the appellate courts. That prison
officials are allowed to come in and iestify about the
cin:umstances regarding confinement or where confinement
is an issue. I know of no case that says the
circumstances and the observations surrounding the
24 administration of the execution aren't relevant. When

25 the jury is being asked docs the defendant deserve-the
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1 death penalty be applied to him, we think it is relevant
2 to those issues and we would ask the Court to allow all
3 or part of that testimony in as it has been proffered on

4 the Bill.
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THB COURT: Your request is denied. My
6 ruling stands.
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MR. BLAZEK: Judge, before I leave this I
8 want to make sure I made the Bill - it's not all or
9 nothing. We are offering each question and response
10 individually.
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TifE COURT: I understood that. Each one
12 of them is overruled.
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MR. BLAZEK: All right. Judge, we have a
14 couple of other areas I just want to briefly touch on
15 before. I didn't bring them up before the jury but I
16 might as well bring them up now. I think th~ State
17 might object, we'll see. It's very brief.
18 Q (By Mr. Blazek) Reverend, I want to touch upon
19 a couple of other areas here. Might be one other area.
20 In your experience with people serving long prison
21 sentences have you noticed whether or not some of them
22 have had the capacity to change?
23
A Yes.
24 Q What is your experience in that regard about
25 inmates serving long prison sentences?
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Many of them do change. A person who comes in
when he is seventeen years old is going to change
naturally. If he wants to - whether he wants to or
not. And you put somebody in prison for a long, long
time they are nonnally -- we are all changing every day,
all of us. None of us are the same thing we were
yesterday or next month. But a lot of people, you put
them in prison and they adjust, they do adjust to
prison. They do begin to do some better things. They
change their lives - I'm not saying everybody, but
there are many of them who realize that they have got to
change in order just to exist in this institution. And
part of thal is a positive relationship with other
people. Many times they make a positive change in the
relationship with lheir families and they make different
relationship with the attitude toward the Jaw and
enforcement of the law and following of the law, so
forth. Many of them change.
Q So in your experience there have been -- some
have come in real outlaw types and by the time they got
out been rehabilitated where they are good members of
the community again after many years?
A Certainly. I'm going to a wedding of one next
week.
MR. BLAZEK: Judge, we would offer that
A
Page 115
1 type of evidence in addition to what we offered before.
2
MR. COBB: State would object, also, that
3 is not relevant.
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THE COURT: 1 sustain the objection.
MR. BLAZl!K: Judge, I think we have
6 concluded the presentation of the evidence from Reverend
7 Pickett. There is nothing left for us to present to the
8 jury other than what has been objected to and sustained.
TIIE COURT: All right. Reverend, I guess
9
10 that will get us to the point where you're excused.
11 Thank you so much for being here.
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THE WITNESS: Thank you, sir.
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THE COURT: Do you have another one?
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MR. CARTER: Two more, Louis and Beverly
15 Mitchell. They are both here waiting outside.
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Tiii! COURT: Bring the jury.
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(Jury in the box)
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THE COURT: You were sworn earlier were
19 you not?
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THE WITNESS: Yes, sir.
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THE COURT: You're still under oath.
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THE WITNESS: Yes, sir.
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TIIE COURT: y OU may be seated.
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having previously been
2 duly sworn, testified as follows:
3
~EXAMINATION
4 l!XAMINATION BY MR. BLAZEK:
5 Q Good afternoon, Mr. Mitchell.
6 A Yes.
7 Q How long have you known Raphael Holiday?
8 A Before this happened?
9 Q Well, how long have you known him? When did
10 you meet him?
11 A Probably three years ago.
12 Q And do you recall the occasion of your meeting
13 Raphael Holiday?
14 A He was over at Tami's apartment.
15 Q And were you visiting or what was the
16 circumstances?
17 A Justvisitirig.
18 Q Was the visit a pleasant visit?
19 A Fairly.
20 Q And was it your understanding that they had
21 been living together already or were they just getting
22 to know each other at that time?
23 A Living together already.
24 Q Tami was pregnant at this time or was this
25 after Justice's birth?
MR. LOUIS MITCHELL,
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1 intellectual skills, that sort of thing?
She was pregnant at the time.
2 A I knew he couldn't read too good at one time.
Q And is it - if I have this right, Tami is a
few years older than Raphael; is that right?
3 He had dyslexia or something. I tried to help him on
A I'm not sure.
4 that.
Q What is Tami's birthday?
S Q Really. How did you help him with that?
A February 25th, I believe it's '76. I'm not
6 A I told him he could put a sheet of paper on top
sure.
7 and bottom of the lines and read across it and that way
Q And all three children were living there with
8 you wouldn't read two lines at one time.
9 Q Did that seem to help him?
Tami and Raphael at that time in the apartment?
A Well, she was pregnant.
10 A I don't know. He didn't show me he had done
Q That's right, I'm sorry . The two children and
11 it.
Tami and Raphael were living there at the apartment at
12 Q Did he have much interest in that sort of
that time?
13 thing?
A I assume they were.
14 A Not really.
IS Q When it came to work roles, I mean, Tami had no
Q Had you been out of touch with Tami for awhile
during that time?
16 trouble moving up in her job? She became a manager?
A Nri, sir.
17 A Yes, sir.
Q Just hadn't met Raphael? The occasion hadn't
18 Q And she was well regarded and given
come up?
19 responsibility at work?
A Right.
20 A Yes, sir.
Q And were there any troubles in the relationship
21
Q And Raphael, he never moved up did he?
at that time when you first got to know Raphael?
22 A No, sir.
A Well, they had squabbles is all I know.
23 Q He was the cook at the restaurant?
Q What sort of squabbles were you - did they
24 A Yes, sir.
confide in you about?
25 Q Did they ever discuss wilh you issues about
A
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1 A His drinking and 2 Q And is that about it7 Just his drinking?
3 A That's about it.
4 Q Did any of that change as the months went by?
5 Did Tami or Raphael confide with you about other
6 problems besides his drinking?
7 A Well, one time be asked me something about why
8 Tami done something and I well, she's just Tami, she's
9 that way.
10 Q So even he came to you and confided about a
11 problem?
12 A Yes.
13 Q But so as far as you could tell they did not
14 appear to be a troubled relationship?
15 A No.
16 Q Tami was a pretty bright young lady when she
17 was in school wasn't she?
18 A Yes, sir.
19 Q How did she do grade-wise?
20 A Straight A student.
21
Q And knowing Raphael, I know you didn't
22 administer any test to him, but you didn't get the
23 impression generally that academically that was his
24 strong suit? I mean, we probably - tell me what did
25 you think about Raphael's academic skills and
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jealousy or infidelity or anything like that?

A No, sir.
Q Now, the two older children, Tierra and
Jasmine, their natural fathers, were they - did they
maintain a relationship with the children and with Tami?
A One did.
Q Who maintained the relationship?
A Kerry.
Q Would that be Jasmine's father?
A Jasmine's.
Q How did Raphael feel about that, do you know?
Did you ever A Didn't seem like it bothered him any.
Q What about Tierra's father? What was his
situation?
A He's in the pen.
Q Was he in the pen when Raphael and Tami got
together or do you know?
A Yes, sir.
Q Did you ever discuss with Tami and Raphael
whether or not they should have a ceremonial marriage as
opposed to just the infonnal marriage that they had?
A No, sir. That's their business.
Q When you would see Raphael and the children
together how did they interact?
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Pretty good.
Q Did you ever see Raphael's parents and the
children together?
A Yes, sir.
Q How did they interact?
A Real well.
Q Do you know if they had any financial troubles?
A At one time they did.
Q What sort of -- what was your understanding of
their financial troubles?
A That's why she moved over from where they was
living at over to my house.
Q Had they tried to buy a mobile home?
A Yes, sir.
Q Did they ask you for advice in that regard'1
A Yes, sir.
Q What was your advice to them about buying a
mobile home?
A I told them if they could get it, get it.
Q Really? Do you think they could afford it?
A At that time they could.
Q Do you know how much money they had to borrow
to buy that mobile home?
A No, sir, I don't.
Q You realize some time shortly after that that
A
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1 for whatever reason, changes in employment status,
2 whatever, they weren't able to afford it?
3 A Yes, sir.
4 Q So what options did they have when they
5 couldn't afford !hat mobile home they were living in?
6 A Either move out or get somewhere else to live.
7 Q Did you provide them an option?
8 A Yes, sir.
9 Q Okay. Would you explain what help you offered?
10 A I told Tami Lynn we had found a house up the
11 road and we was able to buy and that I would sell her
12 the house we was living in.
13 Q And that's when they moved out to live in the
14 log cabin'1 That was what was burned in the fire?
15 A Yes, sir.
16 Q And did you notice any stress in the
17 relationship between Tami and Raphael after they moved
18 out to the log cabin?
19 A Yes, sir.
20 Q What did you notice?
21 A He wouldn't go to work.
22 Q And did that make -- did that cause a problem
23 with Tami or with you or with whom?
24 A Well, everybody.
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1 did people come to see it? I mean, other than just know
2 it was there, how did it get talked about or were there
3 discussions about it?
4 A Yes. I told him he needed to go get a job.
5 Q You talked to Raphael about it?
6 A Yes, sir.
7 Q And how did he respond to you about it?
8 A He said he was going out looking for jobs.
9 Q Did you talk to Tami about It?
10 A Yes, sir.
11 Q What did she say about it?
12 I( He needed lo get a job.
13 Q No anger or anxiety about it, just an
14 expression'1
15 A Not really.
16 Q Were you familiar with any of the church
17 activities of Raphael and the children and Tami'!
18 A Yes.
19 Q Do you know what church they belonged to?
20 A Well, I don't think they was belonged to any,
21 but the kids went with my wife to Mequite Hill a lot.
22 Q Which church was that?
23 A Mesquite Hill Baptist Church.
24 Q Do you know whether or not Raphael took the
25 children to the church in Stoneham with his mother?
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I think they did at one time. We went over
!here with them one time for -- I believe it was his
Christening or something of Jasmine.
Q A Baptism?
A Christening or Baptism.
Q Christening or Baptism?
A Yes.
Q And that was of Jasmine?
A I think it was Jasmine.
Q Did you attend the Christening'?
A Yes, sir.
Q One of Raphael activities, from what I
understand, was the garden out there near the log cabin;
is that right?
A He had one growing.
Q Okay. What - did you participate in that
gardening activity as well?
A I helped him out. Tilled it up.
Q Did the children get involved in the gardening
activity?
A Yes, sir.
Q Did that seem to be a wholesome, productive
thing for the family to get involved in?
A Well, I guess you can could say it did.
Q Was it a good garden?
A
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No, sir.
Q What was wrong with the garden'?
A Too much grass in it.
Q You think it was productive otherwise?
A Not too productive.
Q Did you give Raphael advice on how to do a
better job on the garden?
A Yes.
Q What did you tell him?
A Need to till it before the time to plant.
Q Did he fail to do that?
A Well, we was late getting it done, anyway.
MR. BLAZEK: Pass the witness.
MR. COBB: Take just a second, Your Honor.
THECOURT: Okay.
A
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Page 126
You said that you tried to help them out some.
Did you have to give them any food or money?
A Oh, they always didn't want to run to town so
they come by and get bread or something like that, milk
or - when they needed milk.
Q What was your arrangement about the house when
they moved out to the place you built7
A She was to pay me $300 a month.
Q Was that going to be a house payment?
A Yes, sir.
Q Did you owe a mortgage on the house?
A Yes, sir.
Q Were you still having to make payments at that
time?
A Yes, sir.
Q Was Tami able to keep up the payments to you?
A Up until right at the last.
Q What changed?
A With the rape and everything she just - I
don't know, she got tore up and wasn't making enough
money, I guess.
Q All right. You said that you had tried to help
Raphael in several ways. One of them was about his
reading. I think you said a minute ago that he really . -
dido 't lake an interest in it. Is that what you meant?
Q
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16
CROSS EXAMINATION
17 EXAMINATION BY Mit._2!.B:
18 Q Mr. Mitchell, during the time period when
19 Raphael was living with Tami who was supporting the
20 family?
21
A Tami was.
22 Q What kind of jobs did she have?
23 A She worked at IHOP.
24 Q Do you know what her position was'/
25 A She was manager.
Page: 156
June 18, 2002
Page 127
Yes, sir.
Q How about his efforts to find a job or to
improve himself at work. Did he ever show any interest
in doing that?
A Not that I can see. He lost his job at IHOP
and then he didn't go back to work.
Q What did he do?
A Stayed around the house. He said he was going
to look for a job. Got in the car and left and come
back and couldn't get a job. Then he finally got a job
at mushroom plant for about two weeks.
Q Didn't have much interest in that, either?
A No, sir.
Q Well, if you helped him get garden started but
it had too much grass in it did he not lake an interest
in the garden'!
A Evidently if the grass was growing in it it was
not interesting enough to get the grass out.
Q How big was it'I
A It was about twenty-five by thirty.
Q Was it the size of a earden or the type of
garden that a man with nothing to do but work in the
garden with time on his hands to do that that he could
24 keep the grass out of it7
ZS A Yes, sir.
1
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Page 128
1
Q Raphael didn't do that?
2 A No, sir.
3 Q Raphael really didn't go to church with the
4 kids?
S A No, sir. Not when he was out there .
6
Q How long did they live out there?
7 A From some time in January - well, until the
8 house burned down. He didn't live there after March,
9 though.
10 Q He dido 't live there after the rape came to
11 light?
12 A Right.
13 Q How often would he go off in the car like he
14 was looking for a job?
15 A About twice a week.
16 Q Go off during regular working hours when you
17 would be applying for a job. Ever go out at night or
18 what'l
19 A He go during the day.
20 Q How was Tami getting to work?
21 A In her car.
22 Q How was Raphael &oing to look for a job'!
23 A I helped him get a car so he could go back and
24 forth to work.
25
Q What was the agreement on that car?
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Page 129
I
2
He had to pay me for it when he got a job.

And did he ever pay for it?
No, sir.
MR. COBB: Pass the witness.
Q When did they move over there to the log cabin?
8 Do you recall'!
9
10
11
12
.,
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14
15
16
17
18
19
20
21
Q Do you remember where it was?
MR.~K:
Some time in January, I believe.

Q They were just there for a couple of months
before these serious allegations arose of the sexual
assault?
A I believe it was, yes, sir. Well, I'm sorry.
It was in August, I believe, some time in there .
Q Okay.
A Yes. It was in August or September whenever
they moved over there.
Q Okay.
A Of the year before.
Q Okay. So if it was March of 2000 when Raphael
moved out we are talking maybe like September or August
A
It's been a long time ago. I can't remember.
3
4
REDIRECT EXAMINATION
6 EXAMINATION BY
1 there.
2 Q Do you recall when that was?
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22 of '99?
22
23 A Yes, sir.
24 Q Maybe seven months, seven or eight months they
25 lived out there'!
23
24
25
First time it was in Villa Torres Apartments.

And how many children did Tami have at that
time?
A Two.
Q Was she pregnant with Justice at that time?
A No, sir.
Q So you met Raphael before she became pregnant
with Justice?
A Yes, sir.
Q Were they living together at that time?
A No, sir.
Q She had her own apartment?
A She was living with a friend of hers.
Q Okay. Who was she living with? Do you recall?
A I can't remember the name, no, sir.
Q And just so that I can understand this right,
the friend, was this another romantic relationship or
was this just, you know, a platonic relationship as they
say or do you know?
A It was a girlfriend.
Q A girlfriend. So just a platonic relationship.
A
Page 132
Page 130
Yes, sir.
Q And prior to the difficulties in March,
3 although they had financial troubles and Raphael wasn't

4 motivated enough, it appeared that this relationship was
S not overly stressed. They loved each other and getting
6 along all right?
7 A Seemed to.
8
MR. BLAZBK: Pass the witness, Your Honor.
9
MR. COBB: No other questions at this
10 time, Your Honor.
11
THE COURT: Okay . You can be excused,
12 sir. Next witness.
13
MR. CARTER: Beverly Mitchell, Your Honor.
14
MRS. BEVERLY MITCHELL, having previously
15 been duty sworn, testified as follows:
16
DIRECT EXAMINATION
1 They were just sharing expenses more or less?
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17 EXAMINATION BY MR. BLAZEK:
17
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24
25
Q Mrs. Mitchell, good afternoon.
Good afternoon.
19
20
Q Do you recall when you first met Raphael
21 Holiday?
22
23
Yes, sir.
Okay. What were the circumstances of that
24 meetlng?
25
A I went to see Tami and the girls and he was
Yes, sir.
And on that occasion how did you meet Raphael?
A He was outside and he came up and Tami
introduced him to me.
Q And did you know at that point that there was
some relationship between them?
A She said he was her boyfriend.
Q And do you recall about when this meeting was?
A No, sir.
Q And did you stay in touch with Tami and Raphael
as their relationship grew'?
A Yes, sir.
Q What was your impression of the relationship
!hey had?
A It was kind of shaky.
Q And why would you describe it as shaky?
A Because every time I went over there they was
fighting.
Q What were they fighting about?
A I really don't know.
Q Did Tami ever confide to you in lhe
difficulties of lhe relationship during the early
stages?
A No, sir.
A
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Page 135
Page 133
Financial problems?
Q Later on as you know, as the relationship grew
2 and they moved in together, did she ever confide to you
A She never told me.
3 about any problems they were having?
Q What about health problems?
Q So there was a faithfulness problem there. He
Q Did they have any health problems in the
Just that he had a girlfriend.
What do you mean?
6 was unfaithful to her']

A She said he was.
8 Q She believed it. And so how did you console
9 her or how did you consult with her about that
10 infidelity problem?
11
A I asked her ifl could help her any way.
12 Q Did you give her any advice']
13
A No, sir. Because she does her thing.
14 Q How concerned was she about this problem']
10
15
15 behaved in a loving fashion?
6 family']
Q As far as you know she was healthy?
She was worried because they had found out she
Shedidn'tsay.
A Yes.
Q And Raphael was healthy?
11
Yes, sir.
12
And the children were healthy?
13
A Yes, sir.
14
Q When you saw Raphael and the kids together they
16 was pregnant.
16
17
Q She didn't want to be abandoned?
17
Q Really? Explain to me what was missing there
Not really, no.
18
A No, sir.
18 when you saw the kids and Raphael together?
19
19
A They were scared.
20 pregnant, someone had left her kind of in lhe lurch?
20
21
Well, off and on, yes, sir.
21
A Yes, sir.
22
Did the father of Tierra leave her alone? I
22
Q Did you talk to Tami about that?
Had that happened to her before after getting
23 mean, after she was pregnant? Or do you know?

24
I can't really recall. I think she came and
25 lived with me.
They were always scared of Raphael?
Not really, no, sir.
23
24
Q Did Tami talk to you about that?
25
A No, sir.
Page 136
Page 134
Q Did you talk to the children about that?
2 that Be-Bo Merchant?
A I just asked them how come they was scared and
A Yes, sir.
3 lhey said just like that, they wouldn't tell me.
Okay. Was the father of Tierra that was - is
Q Be-Bo was the legal father?
A Yes, sir.
Q And did she feel abandoned by him or do you
5 going to school; is that right?

6 A Yes, sir.
7 know?
8
I really don't know.
She didn't discuss that relationship?
10
11
No, sir.
Q And what about the father of Jasmine?
They broke up before she was born.
12
13
Q Okay. Did she feel abandoned by him?
14
I really didn't know.
15
Q But she didn't want to be abandoned by Raphael?
16
17
Q Do you know if they worked through that; the
She didn't want to be by herself.
18 girlfriend problem?
19
I don't know. She didn't talk to me any more
Q Tami was a pretty smart young lady when she was
Q Did you ever discuss with her why she decided
8 to, you know, a abandon school?

9 A No, sir.
IO
Q Raphael, on the other hand, did you see
11 anything in him when you knew of him that he had any

12 interest in school or academics or reading at all?
13
No, sir.
14
Did you ever discuss that with him?
15
My husband did.
16
Q But you didn't talk to Raphael about that sort
17 ofthing?
18
19
Q Despite the fights, despite the fidelity
No, sir.
20 about it.
20 problems, despite the children's fears, it appeared that
21
Q Did it appear that they bad?
21 at least up until March of2000 that this was - this
22
A They were together.
22 couple was going to make it or not']
23
Q And did they have any other problem that you
23
A No, sir.
24 learned about in the relationship?
24
Q What did you see was going on that made you
25
25 think before March that just wasn't going to make it?
A No, sir.
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Page 139
Page 137
1
He wouldn't work.
And did that trouble Tami?
Q I want to show you what purports to be a
Yes, sir.
3 transcript of an interview of Beverly Mitchell by
Q
A
Did they fight about that?

Yes, sir.
4 Sergeant Frank Malinak. And this is - referred to a
S
6
What advice did you give her about that?
6 part of the meeting. You identify yourself as Beverly
I didn't give her any.
7 Mitchell and he's Frank Malinak. Do you remember any of
Mrs. Mitchell, I want to go back and revisit an
I can't remember.
S Harry Bowers and Ivan Linebaugh identify themselves as
9 area that was talked upon during the first part of the
8 that conversation?
9
A Yes, sir.
10 trial. It deals with the moment the fire started. Is
10
11 it my understanding that the first statement you gave in
11 various individuals involved in law enforcement asked

12 you questions and you tried to answer them;.is that
12 this regard was the written statement on September 6th,
And here this was question and answer. These
13 20007 Is that your recollection?
13 right?
14
A September 6th?
14
A Yes, sir.
IS
Q September 6th, 2000.
15
16
It might have been the day after - the day
And I'm going to start on page eighteen of that
16 report, Bate stamped 2227. You described going through
17 after.
17 the house.
18
MR. BLAZEK: Could I approach the witness?
19
THE WITNESS: I
don't have my glasses.
18
TIIE COURT:
19
MR. BLAZEK: 1 guess we need to mark it as
How is it marked, Mr. Blazek?
20 Okay, I see the date, yes, sir.
20 a defendant's exhibit, Judge.
21
21
(Defendant's Exhibit No. 2 for Punishment marked)
22
Q (By Mr. Blazek) Let see if I've got - where
Q (By Mr. Blazek) Okay,
22
MR. BLAZEK: Could we have this marked as
23 Defendant's Exhibit 1, please.
23 you put the gas in the back seat of the car and you
24
(Defendant's Exhibit No. 1 for Punishment marked)
24 drive back to Tami's house. And he orders you to
25
Q (By Mr. Blazek) And just to make sure we
25 sprinkle it over everything and you say okay. And you

Page 140
Page 138
1 understand, in this very first statement made on
1 sprinkle it and he tells you to get the comforter. And
2 September 6th basically you were describing what you
2 you describe pouring gasoline throughout the house.
3 observed out there at the time; is that right?
3 Going to her bedroom, sprinkle it and it was empty and I
4
S
4 turned and -- I don't know if I turned around to go get
Yes, sir.
Q And it's not question and answer, it's just a
6 long narrative that you prepared in your own
S the other one because I was afraid he was going to shoot

6 me or not, but I turned around and the baby said Me-Me
7 handwriting; is that right?
7 and whoosh, they were gone.
A Uh-huh.
Q Let me see if I can find the section here. I'm
Yes, sir.
10 having trouble reading your handwriting, too. But ifl
Whoosh, the fire went towards the bathroom,
10 just wiped out the sofa. Is that your description?
11 understand that, you write that you poured on Tami's bid
11
That's what I said, yes, sir.
12 and you ran out of gas, that one container?
12
On that day. And there you didn't mention
13
13 anything about seeing Raphael near the start of the
A Uh-huh.
14 Q And I was fixing to go check on the girls, the

15 gas exploded?
16
A Yes. That's what I wrote.
17 Q Okay. And that's not out of context or

18 anything is it?
14 fire, seeing him bend down or anything like that did

15 you?
16
A No, sir.
17
18
Q And I'm not taking that out of context am

A
I?
No, sir.
19
20
Q That's - you didn't say anything about seeing
20
21 Raphael or seeing anybody bend down or seeing anyone
21
22 standing. That's just what you wrote at that time?

A Yes, sir.
23
22 proper for this stage of the proceedings. Can you tell
24
No, sir.
Q And the next statement you gave was September
25 8th of2000; is that right?
19
THE COURT:
Approach the bench, please.
(Following discussion at the bench)

THE COURT: I just don't
see how this is
23 me?
24
MR. BLAZEK: Yes, Judge. We think.that at
25 the end of the guilt-innocence stage that there was a
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Page 141
1 contention made that these -- somehow I was taking
(Jury excused for the day)
2 things out of context when I was saying that Beverly
THE COURT: We will continue with the
3 Mitchell didn't see Raphael standing. And so I'm just
3 testimony outside the presence of the jury at this time.
4 trying to put it -- show that it is in context and that
S she really - these are her statements. She didn't see
S will go smooth. Mrs. Mitchell, in the third pre-trial
Q (By Mr. Blazek) Mrs. Mitchell, hopefully this
6 Raphael standing or bending down at the time of the fire
6 statement you made, of which there is a record, is the
7 starting, that's all. We think it goes -- it's a
7 January 3rd, 2002, pre-trial testimony; is that right?
8
9
10
11
12
13
8 mitigation issue. So we want to - offering in

9 testimony of the January 2nd, 2002, testimony as wetl to
10 show in context how that relates to what she observed.

11
me COURT: 1 frankly don't see that it is
12 proper. What does the State say?
13
MR. COBB: I don't think it is. We are
Yes, sir.
Okay. And first the State examined you and I
believe Mr. Cobb was asking you questions. And just to

show the context, he asked you "how many of the cans did
you empty?" You said one. "What about the other one?"
You described where it was located. I'm on page 122 of
14 the transcript. And say "it was still behind the
14 trying not to block something that has a different point

lS to it, but that was all resolved in the guilt stage.
lS kitchen table as far as I know. Because when I got to
16 Certainly not offering anything new here that he didn't
16 the bedroom to tum around - because Tierra said my
17
18
19
20
21
22
23
24
2S
you' re saying that at the close of the guilt-innocence
17
18
19
20
21
22
23
stage part of the trial that there was a suggestion made
24 name called? She said Me-me. That's all I heard,
in final argument by the State?
2S Question, Me-Me, is that what she called you? Answer
go through the first time. I do.n' t see the point of it,

of trying to make sure that some objectionable reason to
keep it out because all that evidence is already in and
we re-offered all the evidence. This is not going
anywhere new. Not going to any issue aboutTHE COURT:
My understanding, Mr. Blazek,
name and I went to tum around and I didn't see the

girls and all of a sudden I just seen fire and that was
it". That was your description during your sworn
testimony, right? About what you saw; is that right?
A
Yes, sir.
Q And then later on, a couple of pages later they
asked you again "what did Tierra say when you heard your
Page 142
MR. BLAZEK: Not only in final argument
2 but even on redirect of Beverly. The State asked, no
Page 144
1 Yes, sir. Question, and then what did you do'? I turned
2 around to see what she wanted but I couldn't see them.
3 one asked you whether or not he bent or did they. No
3 Why couldn't you see them'? I don't know ifl blocked it
4 one ever asked you, yes. And it was my recotlection
4 out or not. I just couldn't see them. Then the fire
S they asked her that but no one ever asked if he was
5 start. Where did the tire start7 The first recliner.
6 bending over. And then argued that if - that it was
6 That's where you began to pour gasoline? Yes, sir."
7 out of context. And I just wanted to go back and, you
8 know, I thought about it and I think it really was in
8 started?" And you say "over there by the baby's high
9 context. I'm just trying to clear it up to show that
And they asked you "where was Raphael when the fire
9 chair, right before you get to the recliner. He was
10 her complete testimony - her conflicting testimony is
10 close to where it started? Yes, sir. Did you see the
11 conflicting and not assertion out of context and clear
11 children after the fire started? No, sir."
12 that up for the punishment hearing.
12
13
TifE COURT: 1just can't agree with you.
13 when you turned and the fire started; is that right?
14
MR. BLAZEK: I understand. I would like
And that was your testimony there about what you saw
14
IS to make a Bill on that.
IS
Q And then turning to page 135. Mr. Carter asked
16
16 "all right, so he was standing here the whole time you
THB COURT:
Okay. Excuse the jury for the
17 day .
18
19
20
17 were pouring gasoline here, here, here and here?

MR. BLAZEK: Just a second, Judge.
(Short pause)
18 Answer, yes, sir. Question, were you in the bedroom

19 when the fire started? Yes, sir. What do you remember
MR. BLAZEK: Judge, I'm ready to do the
20 again about the fire starting? You're in the bedroom?
THE COURT: Members of the jury' I will
22 and Tierra had called me and I turned around - which is
21 Bill .
22
Yes, sir.
21 Yes, sir. I had poured all the gas on the bed and stuff
23 excuse you until 9:00 o'clock in the morning. You're
23 the oldest grandbaby. I turned around and the fire
24 free to go have a good night and see you back here at
24 started that recliner, was coming around and it was
2S 9:00.
2S already to the bedroom by the lime I really noticed it.
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Page 145
1 So you noticed the fire starting on this - at the
1 examination of this witness. So I think they have the
2 recliner? Answer, yes, sir. And it was coming this way
2 right to cross examine her. In terms of other
3 or what do you remember? All I remember just a big
3 witnesses, let's see, pretty straight forward.
4 gush, all I remember". Thal was page 135.
4 Background of our client from his family - well, we
And then page 136. "Now, when the fire ignited
6 where was Raphael standing? By the baby's high chair
5 have Tami to call. There may be something there but she

6 is not here so -
7 where he was all the time. All right. Did you see him
8 immediately prior to the fire starting? Yes, sir. I
8 be - Judge, with Tami, I don't think that's going to be
9 looked at him. What was he doing immediately prior to
MR. CARTER: I don't think there will
9 some stuff I'm going to go into, I don't believe.
10 the fire starting? He had his foot propped up on the
10
11 high chair and he said something, I don't remember what
TIIE COURT:
All right.
12 it was. When the fire started you were seeing Raphael
MR. BLAZEK: It will be our friends and

11
12 families and characteristics. I think we' II probably
13 Holiday? Answer, yes, sir. And he had his foot propped
13 safely be able to present most of it to the jury.
14 up on the high chair. Did he have the pistol in his
14
15 hand? Answer, yes, sir. Question, so you didn't see
15 adjourn and resume at 9:00 o'clock in the morning.
16 him light the fire then did you? Answer, not that I can
16
17 recollect, no, sir. And, in fact, you didn't see him do
17
18 anything to start the fire did you? No, sir. When I
18
19 seen him the tire was going. But you saw him right
19
20 before? Answer, yes, sir. You were looking at him
20
21 right before the fire started? Well, when I looked
21
22 around the fire he had said something and the fire
22
23 started and I was looking at him but I did not see him."
23
24
THE COURT: That's 137?
24
25
MR. BLAZEK: Yes. Ends page one 37.
25
THE COURT:
All right. Then we will
(Proceedings concluded for the day)
Page 146
Q (By Mr. Blazek) That's the full context of
2 this isn't it?
.!
Page 148
1 THE STATE OF TEXAS
COUNIT OF WALKER
A Yes, sir.
4 Q Okay. Now, at this stage is it your

5 recollection that if someone had asked you, Mr. Carter
6 or Mr. Cobb had asked you instead of what was he doing
7 immediately prior to the fire starting, if they had
I, Johnny D. West, Official Court Reporter in and
S for the 278th Judicial District Court of Walker County,

6 State of Texas, do hereby certify that the above and
7 foregoing contains a trqe and correct transcription of
8 asked you was he bending down you would have said at
8 all portions of evidence and other proceedings requested
9 that time that he was bending down?
9 in writing by counsel for the parties to be included in
10
11
I don't recollect, sir.
10 this volume of the Reporter's Record, in the
MR. BLAZEK: I don't have anything further
11 above-styled and numbered cause, all of which occurred
12 on the Bill, Judge.
12 in open court or in chambers and were reported by me.
13
13
THE COURT: All right. Do you have
14 anything?
15
MR. COBB: Yes, Your Honor. The State
16 would object to this line of questioning. But in the

17 alternative, we would ask the Court to admit those
18 documents that be just now asked and, in the interest of
19 completeness, that we went through this during the first
20 trial and it's nothing new.
21
THE COURT: I agree with you.
I'm g<;>ing
15 if any, admitted by the respective parties.

16
I further certify that the total cost for the
17 preparation of this Reporter's Record.is _ _ _ _ _ and
18 was paid/will be paid by - - -- - - - -19
20
WITNESS MY OFFICIAL HAND this the--21 of _ _ __ _ _ _ _ _ , _ _ _ __
22 to sustain the objection. Now, anything else that is
22
23 remotely objectionable that we could make a record on
23
24 this afternoon other than excusing the jury?

25
I further certify that this Reporter's Record of the
14 proceedings truly and correctly reflects the exhibits,
MR. BLAZEK: I think that concludes our
24
lohMy 0, West, csk 342
25
Exp. Date: December 31st, 2004
- - - day
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Lexis Nexis
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Copyright (c) 2014 The University of Texas School of Law
American Journal of Criminal Law
Spring, 2014
American Journal of Criminal Law
41 Am. J. Crim. L.151
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Mass Incarceration and the Death Penalty Symposium: ARTICLE: Texas Ain't Tuscany: How a Truism Might Further
Invigorate Contemporary "Cost Arguments" for Death-Penalty Abolition
NAME: Gretchen Sween*
* Gretchen Sween is an adjunct professor at The University of Texas School of Law, a meip.ber of the Board of
the Texas Defender Service, and an attorney in private practice. She thanks the participants in the symposium for their
inspiration and the members of the journal's editorial staff for their hard work and support.
BIO:
LEXISNEXIS SUMMARY:
... The cost arguments persuading state legislators across the United States have, however, fallen flat in Texas, the
execution capital of Western civilization .... But even accepting the conservative premise that the only truly just
punishment for the worst crimes is death, for many that ideal loses some luster when the economics of the death penalty
are viewed through a purely rational lens .... Despite this, death-penalty proponents in Texas who are in a position to
make policy remain remarkably resistant to efforts to reform the procedural processes that govern capital defense, to
fund indigent capital defense, and to impose categorical bans on death-penalty eligibility - thereby ensuring that Texas
continues to obtain death sentences and conduct executions in high numbers. ... And many scholars of the death penalty
believe that complete abolition will only happen if the Supreme Court intervenes, most likely by applying the "evolving
standards of decency" methodology that has shown new vitality in the last decade .... The Medellin decision - which
gave the victory to Texas against its own former Governor-turned-President and against most of the civilized world must have suggested to Cruz and other like-minded Texas elites that Texas was unstoppable. ... Aside from ignoring
the number of states that had long before abandoned the practice of executing juvenile offenders or that had rejected the
death penalty altogether, the argument is undercut by a rather striking non sequitur: "And, at least in the instant case, a
jury of his peers unanimously agreed that Patrick Kennedy's crime merited the death penalty." ... By contrast, Tuscany's
Beccaria spoke to the elites of his day about the death penalty's costs in terms that resonated with those elites'
fundamental values.
IDGHLIGHT:
In all negotiations of difficulty, a man may not look to sow and reap at once, but must prepare business, and so
ripen it by degrees. nl
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[*151]
I. Introduction
Tuscany and Texas both start with the letter "T." And Tuscany shares some topographical features with the Texas Hill
Country, such that [*152] vineyards and olive trees grow in both places, although they flourish more readily in the
former. There the similarities seem to end. For this article, the key difference between these two places is their
relationship to the death penalty. Tuscany abolished the death penalty at an early date; Texas, on the other hand,
continues to earn international notoriety as the biggest killing state in the United States - and thus in the Western world.
By drilling down into the differences between these two venues, I propose that instead of waiting around for the
"standards of decency" in Texas to evolve (i.e., until the cows come home), Texas's contemporary posture with respect
to the death penalty may prove a positive stimulus for the only actors in a position to effect wholesale abolition in this
country.
My argument assumes the following premises:
. Changing most people's minds about the death penalty's moral efficacy is virtually impossible because
humankind's primal desire for revenge, which is always in tension with its (only slightly) more evolved desire for
community, is essentially hard-wired, emotional, and reactionary .
. Reason-based arguments about the death penalty should be pursued in hopes of persuading those (l) who are
persuadable and (2) who occupy positions of power sufficient to effect real change - i.e., elite policy-makers. n2
. "Elites" are those who have the luxury, in terms of time and training, to make momentous policy decisions - about
the legitimate means at the State's disposal for punishing crime - in a contemplative manner consciously detached from
the instinctive, vengeful emotions that virtually all human beings feel when presented with the details of, and fallout
from, heinous crimes .
. Decisions about whether to have a death penalty and, if so, how to implement it are reason-based arguments that
presuppose the rule of law and thus are decisions made by elites (even in a democracy) .
. Elites are more likely to make momentous policy decisions at odds with popular consensus (and human instinct) if
these elites believe that doing so will accrue to the benefit of the institution wi~h which they feel most closely aligned.
These general premises are home out by the circumstances that led to the death penalty's abolition in
eighteenth-century Tuscany . Therefore, this article begins there. The reason-based argument for abolition that resonated
in Tuscany can be summarized as follows: the death penalty costs too much and yields meager dividends . n3 The
reason-based rationale for [*153] abolition resonating today in the United States makes the same basic points and is
reinforced by a literal cost argument. The cost arguments persuading state legislators across the United States have,
however, fallen flat in Texas, the execution capital of Western civilization. Because Texas leads the way in executions,
abolition is not possible unless Texas is made to stand down. But elites with power in Texas resist abolishing the death
penalty because it provides elites with a powerful political tool from which they can reap tremendous benefits despite
the considerable costs to the state. Texas, therefore, can only be made to stand down by elites operating outside of the
state. Yet the very prospect that outside elites may try to dictate to Texas any kind of policy - and certainly criminal
justice policy - is a fear stoked by a contingent of elites within Texas as a means to maintain their power.
In short, the challenge is great. Even so, there are reasons t~ believe that Texas's affinity for the death penalty can
be harnessed to help convince the Supreme Court of the United States to act towards wholesale abolition. I contend that
the Supreme Court, the only elites in our federalist system in a position to eliminate the death penalty completely, are
more likely to take on Texas if they see Texas as a threat to their own institutional integrity.
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Carol and Jordan Steiker, leading scholars of the American death penalty, have aptly described the Supreme Court's
incremental, but notable, movement toward abolition during the past decade. n4 This article suggests a way to capitalize
on this momentum by honing in on Texas's remarkable losing streak in recent death-penalty cases before the Supreme
Court and by identifying rhetorical strategies that, while powerful, have failed to resonate with the particular elites to
whom they have been addressed, thereby making Texas an unlikely ally in death penalty abolition.
II. Eighteenth-Century Tuscany: Where Rational Arguments for Abolition First Bore Fruit
The death penalty was abolished in Tuscany in 1786, and the region never looked back. n5 Except that, in 2000, the
region looked back to [*154] celebrate, proudly launching La Festa della Toscana to promote the concepts of
"international peace, justice and liberty." n6 The date chosen for the festival, November 30, was the same as the day in
1786 when a law promulgated by an elite - the Grand Duke Peter Leopold di Lorena - abolished Tuscany's death penalty
with a mere stroke of his autocratic pen. n7 The law also banned torture and mutilation, which Leopold saw as being of
a piece with the death penalty. all instruments of barbarism. n8 Peter Leopold's legislative decree made Tuscany the first
state in the world to take this bold step - for good.
The Grand Duke, a member of the Hapsburg dynasty who reigned over the duchy after the last Medicis, was
inspired to take this unilateral action after reading a treatise by Cesare Beccaria, a relatively obscure Enlightenment
thinker from Tuscany. Beccaria's On Crimes and Punishments n9 was first published anonymously in 1764, when
Beccaria was in his twenties. After hammering out his ideas with a group of friends who, like him, were highly
educated nobles, Beccaria applied the humanistic, Enlightenment values promulgated by Locke and Rousseau to the
criminal justice system, concluding that a rational approach to crime and punishment could not include the death
penalty. nlO
While Beccaria proposes refonning the entirety of the criminal law, abolishing capital punishment plays a central
role in his theory that the State's integrity depends on criminal punishments being rational. Beccaria argues that the
State is not endowed with the power to dole out any more punishment than necessary to try to prevent a particular
crime. Ultimately, he concludes that the death penalty has no utility and, in fact, only imposes costs on the State due to
the punishment's excessiveness and vengeful character. The chapter "On the Death Penalty" provides a lucid roadmap
for most contemporary arguments for abolishing the penalty:
. The State killing as a means to send a message that killing is execrable is self-contradictory. The "calm rule of
law," nl 1 which is the basis for state-sanctioned punishment in the name of deterrence, is at odds with the bestial
impulse to kill, "an example of cruelty" nl2 [*155] that can have only a demoralizing effect on the State. nl3 On one
hand, executions harm public morality in that they are "spectacles" that appeal to the prurient interests of some; on the
other hand, the spectacle sparks in others "compassion" for the condemned "mixed with indignation" for the authorities
responsible for the criminal's ultimate suffering. n 14 But neither result ennobles the State .
. Executions fail to instill respect for the State; instead, this harsh, irrevocable penalty suggests tyranny . The poor
recognize that much crime arises from more fundamental injustices such as hunger. From the perspective of the poor,
state-sponsored killing does nothing to remedy the root causes of crime and so does not endear the poor to the State. nl5
Executions do not deter the commission of crime - otherwise crime would already have vanished from the earth (for
instance, execution in Beccaria's day had long been the default punishment human societies had chosen for many
crimes). nl6 Deterrence is not accomplished through a punishment's severity but through its length. Hard labor,
therefore, is a far better solution and less likely to attract those who out of "fanaticism" or "vanity" n 17 might pursue
public martyrdom at the hands of the State. Some who are inclined [*156] to kill are motivated by fanaticism or
vengeance; thus, they may well relish the idea of a public death for themselves. nl8 In other words, those most likely to
commit a heinous act like murder are not going to be deterred by the prospect of their own death at the hands of the
State.
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. Victims are not made whole by state-sponsored killing. A better way to compensate the victims of homicide than
another death is to give them something tangible, like money .
. The death penalty cannot be justified simply because every human society has had a death penalty. Human history
contains "a vast sea of errors, in which a few widely scattered truths are floating" about with large and distant gaps
between them. nl9 In short, the argument that "it has always been" is unsound. Principle should trump "blind habit,"
which is why the decision-makers must be "benevolent monarchs" who "love peaceful virtue, the sciences and the arts"
and who steel themselves against the "cries" of the masses. n20
Most of Beccaria's points should sound familiar to anyone conversant with contemporary death-penalty polemics.
Notably, though, he does not make a classic "dignity of man" argument. His position is grounded entirely in rationalism,
not emotional appeals regarding moral imperatives. n21
[*157] Beccaria's reason-based analysis was calibrated to appeal to his audience. He was not writing for most of
his compatriots. n22 He was writing for European nobles, consisting of "benevolent monarchs" who, like would-be
philosopher-kings, felt compelled to make a reasoned choice to do the right thing despite tradition and public
preference. n23 Indeed, the ruling elites competed to provide patronage to the likes of Beccaria. n24 Those rulers were
persuadable because they cared about being seen as aligned with Enlightenment values, and they were in a position to
effect real change because they were not burdened with institutions like representative democracy and a federalist
system of bifurcated government. n25
His book's success demonstrates that Beccaria's arguments resonated with the elites of his day. It was an immediate
publishing sensation. The arguments inspired Enlightenment thinkers like Thomas Jefferson n26 and Voltaire, n27 as
well as contemporary criminal justice [*158] reformers worldwide. n28 Despite the apparent gulf between the United
States and all other Western democracies today, during the Enlightenment, Beccaria's treatise was quickly translated
into English, widely read in both northern and southern American cities, n29 and was hugely influential on several of
the United States' founding fathers. n30
.I
The book also sparked controversy. The Venetian Inquisition banned it, perhaps as a result of one monk's emotional
counter-attack in which he reputedly described Beccaria's polemic as "socialist." n31 The book was placed on the
Roman Inquisition's 1766 Index of Prohibited Books. n32 The objections from these quarters can perhaps be attributed
to the fact that Beccaria's thesis hinged on the concept of natural limits on sovereign power, a concept at odds with
traditional notions of "might makes right" and the divine right of kings (and popes). That is, not all elites took kindly to
a concept that threatened some of the elites' own power. But eighteenth-century European culture was such that many
elites were inclined to perspectives that may have seemed counter to their short-term self-interest because they
genuinely believed it was rational to serve the interests of humanity at-large.
Admittedly, Beccaria's great influence on Enlightenment rulers and thinkers did not spur immediate abolition of the
death penalty anywhere except his native Tuscany. n33 Instead, his treatise inspired incremental reforms that continue
into the present - such as transforming the death penalty from a public spectacle to a private, controlled event, and
curtailing the availability of the death penalty - until European elites succeeded in abolishing the death penalty entirely.
n34 Beccaria's name receded into [*159] relative obscurity, but his argument - that the death penalty was not worth its
costs - has been embraced by elites, including those who took immediate action in Beccaria's homeland of Tuscany. n35
That development was, and remains, a symbol of the region's enlightened sensibilities.
III. Twenty-First Century United States: Where a New Cost Argument has Been Grafted onto Beccarian Root Stock
Lately, Beccaria has resurfaced, garnering considerable attention from contemporary death penalty scholars n36 who
recognize that Beccaria provided "the first coherent, comprehensive and sustained argument against the state's right to
kill." n37 Today, variants ofBeccaria's reason-based cost argument have emerged and are shaping the debate about the
death penalty's ultimate demise in the United States. One variation focuses on the moral costs, where the risk that the
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State will execute innocent people remains despite all of the checks supposedly provided by the constitutionalization of
the penalty during the decades since Furman v. Georgia. n38 The "risk of executing the innocent" argument has gained
considerable traction due to the remarkable work of organizations like the Innocence Project, whose efforts exposing
wrongful convictions relying heavily on DNA evidence routinely receive significant press coverage. n39 Another
variation on the cost argument focuses on the expense of capital trials and the ensuing appeals, as well as the cost of
confining death-row [*160] inmates in high-security penitentiaries. n40 Even law enforcement personnel have begun
to cite these literal costs as the central reason to abandon the death penalty. For instance, in a 2012 referendum effort in
California where voters were asked to repeal the death penalty, many individuals on the prosecutorial side joined
abolitionists in noting just how many millions of dollars California stood to save if the death penalty were repealed. n4 I
Although the m~sure failed, those same arguments have been resonating elsewhere as a null}.ber of states have recently
passed repeal statutes or are debating such measures. n42
Even a new conservative group, "Conservatives Concerned About the Death Penalty," has emerged to emphasize
economic costs as a reason to reject the death penalty. n43 The group's leaders note that the death penalty costs more
than a life sentence, and yet does not seem to deter crime. n44 Texas native Richard A . Viguerie, whom some describe
as the "Funding Father" of the conservative movement, supports the new group and has framed the argument in terms
that might prove palatable to many on both ends of the current American political spectrum. n45 That argument is that
the death penalty is just another government program, and since the government cannot be trusted to do anything well, a
"system marked by inefficiency, inequity, and inaccuracy" should be abandoned. n46
The ascendency of the "economic-costs" argument may seem surprising since the American criminal justice system
rests on two diametrically different premises , both of which implicitly eschew cost concerns. First, there is the
conservative notion that certain ills are so [*161] heinous that a secure society requires that those who perpetrate them
must be punished with a loss of liberty; therefore, the State should shoulder whatever costs are necessary to ensure that
a sufficient deprivation of liberty occurs. n47 Second, there is the countervailing liberal notion that depriving someone
of liberty is the most extreme thing a State can do; therefore, harsh criminal sanctions should not be permitted unless the
person has been found guilty beyond a reasonable doubt through a public process reflecting due process and equal
protection under the law; therefore, the State should shoulder whatever costs are necessary to ensure sufficient and
equal process.
The ascendancy of the economic-costs argument may be understandable since the United States is among the most
unapologetically capitalist societies in the world. Money - making and spending it - matters a great deal to Americans
generally. And virtually every American understands on some level that the way money is spent is a vote about what
matters in our culture. Most citizens understand that budgets - particularly in times of economic instability, strained
finances, and ballooning public debt - are a zero-sum game: money spent on the military, for instance, is money not
spent on health care. Particularly astute citizens have recognized that, because budgets reflect what we value, budgets
are a kind of "moral document." n48
All the resources that state and federal governments spend litigating capital cases and incarcerating death-sentenced
inmates in extreme isolation are resources not spent on other things. And some Americans - who are essentially
pragmatists - are starting to balk when confronted with the death penalty's precise costs. n49 Perhaps this recent
development belatedly validates Thurgood Marshall's hypothesis, which posits that a properly "informed citizenry"
could not support the death penalty. n50 But even [*162] accepting the conservative premise that the only truly just
punishment for the worst crimes is death, for many that ideal loses some luster when the economics of the death penalty
are viewed through a purely rational lens. n51 Certainly, for the first time in decades, numbers of conservatives now
seem willing to concede that economi.c concerns should trump their idealism about the death penalty's legitimacy '.
But wait!
Texas is a conservative bastion by most objective measures. Yet the state continues to spend enormous sums
executing what may be a large number of people relative to other states but is still a handful compared to its general
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population. n52 Since at least 1997, the public has had constructive notice that each execution costs Texas taxpayers
about three times as much as incarcerating someone for life. n53 Yet Texas has been willing to spend those sums even
as many of its citizens' basic needs - healthcare, education, better job opportunities - go unmet. Why is Texas peculiarly
resistant to the latest variation on Beccaria's cost argument for abolition such that, most agree, it will likely be the last
execution-state standing? n54
IV. Texas; Where Rational Arguments Against the Death Penalty Are Non-Adaptive
The let-the-marketplace-decide model is quite popular in Texas, and leading politicians like to argue that the low-tax,
low-regulation, part-time government model explains Texas's robust economy. n55 Because of Texas's pronounced
commitment to a relatively unbridled marketplace, one might think it would find pragmatic economic arguments for
death-penalty abolition appealing. Yet Texas is a death-penalty state where the economic- [*163] costs argument is not
gaining much traction whatsoever - at least not among elites in a position to effect real change. n56 These elites are
more inclined to capitalize on the political electorate's sense of Texas as "special," using a hardline stance with respect
to the death penalty as an efficient and powerful means to pander to that electorate.
Why is Texas so special?
In part, Texas is special because of its size n57 and geographic diversity. n58
Moreover, Texas has a uniquely colorful history. Ever since Davy Crockett reacted to losing reelection to the U.S.
House of Representatives in Tennessee by declaring, "You may all go to hell, and I will go to Texas," n59 Texas has
been seen as a place that welcomes those willing to reject the status quo and go their own way. Texas is the only U.S.
state that was wrested from both native peoples and colonizers, and then stood for a time as a Republic in its own right
before joining the Union. As a result, the state has long been infused with a siege mentality, which in tum contributes to
high gun ownership and a concern about fighting off both real and perceived intruders - whether "savages" fighting to
maintain their territory in the face of settlement during the frontier days or far-away Iraqis whom a president from Texas
purported were a threat to our "freedom." n60
Texas is not, of course, the only state that felt insufficient loyalty to the Union such that it seceded not long after
Abraham Lincoln's election. n61 [*164] But Texas voted by referendum to secede, not just from the Union, but so it
could resume its status as a sovereign state. n62 Then the state quickly demonstrated its frustration with process, as the
secession convention went beyond its mandate and moved to join the Confederacy despite the protests of the sitting
governor - war hero Sam Houston - who was summarily forced out of office and, essentially, out of town, as the
Confederate flag was hoisted over the Capitol. n63 Texas is certainly the only state where a contemporary sitting
governor has felt comfortable, nearly 150 years after secession, invoking that act in a political campaign presaging a run
for national office. n64 That same governor has, more recently, been using that Texas legacy - of seeing itself as a
country unto itself, a sovereign who can take or leave the allegedly supreme federal government - to resist federal
legislation that would dare, for instance, to thrust massive funds for Medicaid expansion upon its citizens. n65
While that governor, Rick Perry, may have proved a disastrous presidential contender in 2012, n66 his political
instincts about what plays [*165] well back home are keen. n67 Many Texans value their image as out-of-step with
elites in Washington and on the coasts. Likewise, these same folks welcome being at odds with international opinion
and tend to disdain humanistic, Hugo-esque notions of "evolving standards of decency." n68 Many Texans, who see
colloquial grammar and a homespun drawl as proxies for authenticity, are highly suspicious of intellectual rationalism,
due process, and even the rule of law itself - all of which elites who favor death-penalty repeal tend to value. n69
Action-oriented "frontier values" are perceived as preferable. n70 Indeed, sufficient numbers of non-Texans must find
the concepts of "swift justice" n7 l and "Texas tough" appealing such that they have, in recent decades, rewarded Texans
with an extraordinarily large number of seats at the table where national policy is made - which has, in turn, enabled
Texas to export criminal justice policy to the rest of the nation. n72
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[*166] Nothing symbolizes the deeply-rooted Texas-tough stereotype like Texas's approach to the death penalty.
n73 These roots, like those of the scruffy mesquite trees that flourish in some of the state's most inhospitable climes, are
hard to dislodge and easy to revive. n74 A contemporary pro-death-penalty stance stimulates root values, serving as a
shorthand to many Texans as well as non-Texans attracted to the oversized Texas mystique. n75 Talking tough about
the death penalty says: "I am pro community writ small. I understand that this community is surrounded on all sides by
threats - particularly from people of color (whose land Texans once seiged, whose ancestors were formerly held in
bondage, or who try to cross the border today). Other threats come from foreign governments who want to disarm you
and leave you exposed. Y'all can go about your business - but remain armed and vigilant. I'll make sure the Government
stays off your [*167] back. But if a threat ripens, you can be sure the State will step in and exact swift and certain
retribution ." This implicit message simultaneously plays to mob sensibilitie~ while promising a ballast against complete
mob rule. The message is neither rational nor pragmatic; it is instinctual and darkly palliative. n76
Certainly, for the last two decades, n77 a major proxy for "Texas values" has been the state's willingness not only to
sentence people to death, but also to carry out those sentences. n78 Two of the state's most successful politicians measured, respectively, in terms of attaining the nation's highest office and retaining control over the state's highest
executive office - are George W . Bush and Rick Perry. These men have aggressively defined themselves as Texans, as
leaders, and as defenders of a robust death penalty, almost as if the three were synonyms. For instance, even after the
American Bar Association published findings supporting the conclusion that Texas fell far below any measure in terms
of adequate indigent defense, Governor Bush signed a bill into law limiting the rights of death-sentenced inmates to
pursue appeals in state court n79 while publicly expressing absolute confidence "that every person that has been put to
death in Texas, under [his] watch, had been guilty of the crime charged, and has had full access to the courts ." n80 Bush
signed death warrants for 152 executions - including forty lethal injections in 2000 alone. n81 Bush's [*168] historic
record was broken only by his successor, Rick Perry. Perry also vetoed bills that would have prevented execution of
juvenile offenders and of persons with mental retardation n82 and took the unprecedented action of blocking a 2009
probe into the possible wrongful conviction (and subsequent 2004 execution) of Cameron Todd Wi11ingham after
investigative reporting suggested he probably should have been acquitted. n83
These men did not make the culture; n84 but they, like other elite, Texas conservatives, n85 have been willing to
exploit what is lurking deep in the soil. Because these Texas leaders understand their base, they are (not surprisingly)
disinclined to embrace the cost argument that attorneys general are embracing in other jurisdictions. n86
[*169) Rhetorically, both supporters and opponents of the death penalty agree that "if the death penalty exists, it
should be fair." n87 But supporters - particularly those actively involved in litigating death sentences in Texas - say that
sufficient safeguards of fairness are already built into the system. By contrast, opponents - particularly those actively
involved in defending against death sentences in Texas - say that beneath the surface of most death sentences lies a
dearth of due process, prosecutorial misconduct, woefully inadequate counsel, and overwhelming evidence of racial and
economic bias. Opponents of the death penalty also point to horror stories of childhood abuse and deprivation that trial
counsel did not bother to investigate, let alone present as evidence militating against a sentence as harsh as death.
The fact remains that at least a dozen people on Texas's death row have been exonerated since executions resumed
after Gregg. n88 Despite this, death-penalty proponents in Texas who are in a position to make policy remain
remarkably resistant to efforts to reform the procedural processes that govern capital defense, to fund indigent capital
defense, and to impose categorical bans on death-penalty eligibility - thereby ensuring that Texas continues to obtain
death sentences and conduct executions in high numbers . The infamous "sleeping lawyer case," for instance, exposed
Texas's paltry expectations regarding the level of competence expected of those defending persons accused of capital
crimes. n89 Despite years of extensive bad publicity, Texas continues to resist modest efforts to <;nsure that those
condemned to death have access to procedures that would enable them to challenge the ineffectiveness of their
(generally court-appointed) lawyers. n90
[*170) Similarly, Texas policy-makers resisted legislation that would have permitted jurors to choose life without
the possibility of parole (LWOP) instead of death, arguing that this alternative to death would "confuse juries." n91 In
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fact, polling data had long demonstrated that, when given the LWOP option, public support for the death penalty
dropped considerably . Therefore, it is not a stretch to suggest that Texas conservative political actors recognized that an
LWOP sentencing option would likely curtail the number of death sentences that prosecutors in Texas could secure, and
they did not see this prospect as a good thing. n92 Texas only enacted an LWOP option after the Supreme Court
decided Roper v. Simmons, which deprived the state of the right to execute juvenile offenders. n93 (Texas was only one
of three states in the ten years before that decision that had actually executed such offenders.) n94 In response to Roper,
the state finally passed legislation recognizing this reform in 2009, but it did so by requiring an extremely punitive
minimum 40-year prison sentence for juvenile murderers since execution was no longer an option. n95 Then, in 2013,
Texas pursued and enacted a mandatory life sentence (with the possibility of parole) for capital juvenile offenders,
which is, potentially even more punitive than a 40-year mandatory minimum. n96
Likewise, Texas continues to resist a ban on executing people with demonstrable mental retardation as a matter of
law and fact. First, Governor Perry vetoed a bill that would have abolished the practice, a fact the Supreme Court noted
in Atkins v. Virginia - the decision that categorically banned such executions despite Texas's resistance. n97 But over a
decade after Atkins was decided, Texas continues to execute persons with mental retardation, n98 because the Texas
Court of Criminal Appeals (the "CCA") has expressly rejected a "bright-line rule" with respect to death sentences for
persons with mental retardation, whereas a categorical ban is precisely what the Supreme Court mandated in Atkins.
n99 The CCA, in rejecting the categorical ban, reasoned that, while "most Texas citizens might agree that Steinbeck's
Lennie should, by virtue of his lack of [*171) reasoning ability and adaptive skills, be exempt" from execution, the
CCA was not sure that others with less severe mental retardation should be exempt as well. nlOO Therefore, the CCA
rejected the standard for diagnosing intellectual and developmental disabilities recognized universally among clinicians
and has instead articulated a set of "factors" (at odds with clinical best-practices) that courts are encouraged to "weigh"
in assessing mental retardation in the capital punishment context. nlOI Most of these factors focus the fact-finder's
attention on the grisly details of the underlying crime,suggesting that anyone capable of committing a capital crime
cannot be mentally retarded - though, were this true, that would render Atkins a nullity, which may be the objective.
nl02
Texas has been able to resist reform and project an image of impenetrable consensus with regard to the death
penalty because of political contingencies unique to Texas - what the Texas Coalition to Abolish the Death Penalty has
called the "Iron Triangle." The trio of conservative forces heavily invested in preserving an active death penalty in
Texas is comprised of right-wing politicians, district attorneys, and victims' rights groups such as "Justice for All," an
organization that is actively promoted on the Texas Attorney General's official website. nl03 Importantly, the elite
right-wing politicians who shape the Texas public-policy agenda include state and federal judges. nl04
In other states, where judges are not selected through partisan elections, the judicial branch of government is better
positioned to represent the rational vision associated with post-Enlightenment elites by serving as neutral arbiters of
justice. nl05 But where judges are selected in partisan ["'172] elections, as they are in Texas,judges must cater to
popular sentiment. Additionally, those seeking state-wide office - such as positions on the CCA, Texas's highest
criminal court - must cater to the Texas Republican Party, which for nearly two decades has controlled all state-wide
offices: Governor, Lieutenant Governor, Attorney General, U.S. Senate, as well as the justices sitting on Texas's two
highest courts. Further, U.S. Senators from a particular state are charged with vetting nominees to fill seats on the
federal bench in their jurisdiction; therefore, Texas's conservative senators have the ability to look for nominees who, if
appointed, might be more inclined by ideology to review death sentences in post-conviction proceedings, not just by
accepting that it is a state's prerogative to impose such punishments, but also by being pointedly skeptical of
process-based reviews of death sentences. In sum, the pronounced homogeneity among the political elites who hold
sway in Texl!s increases the ability of those committed to a particularly severe and expensive penal policy to maintain a
unified front and decreases the need for, or interest in, moderation as a matter of economic costs. nl06
Because of this uniformity n 107 among the political leadership that shapes criminal justice policy in Texas today,
Texas has been "holding strong" even as skepticism about the death penalty's efficacy as a penological tool has
increased in most other death-penalty jurisdictions. nl08
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V. The Supreme Court: Where Texa.s-Style Arguments for the Death Penalty Go to Die
As long as Texas continues to embrace the death penalty as a means to demonstrate that "Texas tough" is not just tough
talk, n109 there will be no [*173] comprehensive abolition in this country. nl 10 And as explained above, Texas
political elites are, at present, willing to commit significant tax-payer resources not only to maintain the death penalty,
but also to resist attempts to chip away at the death penalty through litigation. Therefore, abolition in the United States
will not happen without top-down intervention. The only entity in our federalist system in a position to effect such a ban
is the Supreme Court of the United States.
Contending that Texas seems the least likely state poised to abolish the death penalty on its own is hardly novel.
nl 11 And many scholars of the death penaltY believe that complete abolition will only happen if the Supreme Court
intervenes, most likely by applying the "evolving standards of decency" methodology that has shown new vitality in the
last decade. n 112 Carol and Jordan Steiker, for instance, have articulated compelling reasons to feel sanguine about the
possibility that the Supreme Court will be convinced one day by an "evolving standards" argument that relies on recent
legislative-repeal efforts nl 13 in tandem with those states that long ago abandoned the penalty. nl 14
The Steikers have also described obstacles and historical contingencies that suggest why the Supreme Court is
unlikely to find the death penalty categorically unconstitutional any time soon. nl 15 The biggest obstacle is the
principle of stare decisis. To find the death penalty per se unconstitutional, the Court will not only have to reverse itself
but reverse relatively recent precedent. nl 16 That is, the Court has not yet reached a [*174] moment with respect to its
death-penalty jurisprudence analogous to the moment when it was able to reverse Plessy v. Ferguson in Brown v. Board
of Education . nl 17 Before Brown, the Court had been gradually , but steadily, chipping away at the legal foundations
that had held state-mandated racial segregation compatible with the U.S. Constitution. n 118 Then, in Brown, the Court
spoke with one voice. By contrast, with the notably divided nature of the current Court, unanimity with respect to any
decision inhibiting the states' ability to execute people seems highly improbable, and an opinion announcing a
categorical ban would, at best, muster a bare majority. In short, a decision to strike down the death penalty entirely
would, at present, cost the Court more institutional capital than making such a move did when Brown was decided.
Moreover, top-down abolition by a handful of the most elite players in our federal system would likely stoke the
paranoid fantasies of the far right and the most vociferous death-penalty proponents in places like Texas, thereby
spawning another backlash as seen in the wake of Furman, hurting the Court's elite standing and even setting the cause
of abolition back.
What the Court needs - or at least what five members of the Court need - is sufficient confidence that flouting stare
decisis is worth it because failing to do so might cost the Court even more. This is where Texas recalcitrance might
prove useful. Texas's appetite for the death penalty, evidenced by its status as the leading killing state year after year
and by its commitment of more resources to resisting constitutional litigation challenging death sentences than to
indigent defense, is, in one sense, a threat to the Court's relevance . If Texas, with its halls of power packed with those
committed to keeping the machinery of death well oiled, can continue to thumb its nose at the Court's death-penalty
related mandates , how viable is the Court? How viable is federalism and the U .S. Constitution's Supremacy Clause and
the U.S. Constitution itself?
Perhaps exasperation with Texas may be the secret to bolstering enough members of the Court to risk short-term
popular backlash in the name of salvaging the Court's long-term integrity. The first step in testing this hypothesis is to
anatomize Texas's current approach to death-penalty litigation - an approach that stopped working some time ago.
A.person who played a salient role in shaping Texas's contemporary death penalty legal strategy is Ted Cruz,
Texas's former [*175] Solicitor General and now its junior U.S. Senator. nl 19 A death case about which Cruz is
particularly proud is Medellin v. Texas, nl20 wherein he defended "U.S. sovereignty against the UN and the World
Court." nl21 More accurately, he defended Texas sovereignty, as the case concerned Texas's ability to defy the Vienna
Convention and the International Court of Justice despite directives from the U .S. federal government. Ironically, in the
build-up to Medellin, Texas's former governor, then-President George W . Bush, had responded to significant
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international pressure by issuing a Memorandum to the United States Attorney General, ordering states like Texas to
review the convictions and sentences of foreign nationals who had not been advised of their rights under the Vienna
Convention before being sentenced. nl22 (In some cases, such as Medellin's, the sentences were ones that these foreign
governments, our allies, had expressly rejected as human rights violations.) n123 In this particular case, the U .S.
government was on the side of Mexican national Jose Ernesto Medellin as he sought federal habeas relief from a death
sentence imposed by Texas. n 124 But the Supreme Court sided with Texas, holding in a 5-4 decision that neither
international treaties to which the U.S. is a signatory nor decisions of the International Court of Justice are necessarily
binding domestic law, thereby enabling Texas to execute Medellin despite multi-national objections that doing so
violated international law. nl25
The Medellin decision - which gave the victory to Texas against its own former Governor-turned-President and
against most of the civilized world - must have suggested to Cruz and other like-minded Texas elites that Texas was
unstoppable. nl26 They had succeeded in using state [*176] sovereignty as a theme to corral a bare majority of
Justices on the Court to deny relief to a death-sentenced offender, thereby shoring up support for Texas's robust use of
the death penalty in terms that suggested disdain for the very phenomenon - international opinion - that had bolstered
the rationale for categorical bans on death-eligibility announced in recent cases like Roper and Atkins. n127
But since then - beginning that same term, in June 2008 - the relationship between Texas and the Court (or at least
between Texas and the pivotal swing voter, Justice Kennedy) underwent a sea of change. Starting with Kennedy v.
Louisiana, 554 U.S. 407 (2008), another case in which Ted Cruz played a prominent role, Texas commenced a
remarkable losing streak in death penalty cases before the Supreme Court that has, as of this writing, spanned at least
six years. nl28
Although Texas is the nation's number one killing state, and death penalty cases continue to consume a great deal
of the Court's docket, in the six years since Medellin Texas has been a party to only two of seventeen death penalty
cases that the Supreme Court has agreed to hear and that were fully briefed and given oral argument. n129 Texas played
a leading role as an amicus in two other death penalty cases , drafting an amicus brief on behalf of a compendium of
states in support of another state's position. n 130 Most recently, in Hall v. Florida, Texas attorneys wrote the amicus
brief that nine other states signed. n131 That is, Texas has played a meaningful role in only [*177] five of seventeen about one-fourth - of the Court's death penalty cases in the six years since Medellin; and in each of those five cases,
Texas has been on the losing side. n132 Moreover, of the eight other death penalty cases in the sample - cases in which
Texas played no part or merely signed on to an amicus brief spearheaded by another state's attorney general - the state
has won seven n133 of the eight cases. n134 While this sample is not statistically significant, the pattern is interesting in
that it suggests, without proving, that where Texas is the face of pro-death-penalty advocacy, the odds that traditionally
favor death penalty states are eviscerated.
That Texas's losing streak began in earnest just after one of Texas's most audacious wins (in Medellin) beckons us
to scrutinize the brief that Texas submitted in Kennedy v. Louisiana. n 135
In Kennedy, Ted Cruz was Counsel of Record for the State of Texas in an amicus brief supporting Louisiana. nl36
The Texas Brief, whose drafting Cruz supervised, was signed by eight other attorneys general from death-penalty states.
nl37 The case involved a death sentence imposed by Louisiana on a man named Patrick Kennedy for the horrific rape
of his eight-year-old step-daughter. nl38 The issue in the case was whether death as a punishment for a crime other than
murder was constitutional or if it offended evolving standards of decency, thereby violating the [*178] Constitution's
Eighth Amendment. n139 The Louisiana Supreme Court had concluded that the punishment was constitutional,
distinguishing the plurality decision in the Supreme Court's 1977 Coker v. Georgia decision, which had held that death
is an unconstitutional punishment for the rape of an adult woman. n14'o The Louisiana Court had cited the heightened
need for deterrence of and retribution for crimes against children . n 141 The Louisiana Court then took a novel tact,
explaining that in the Supreme Court's more recent decisions involving categorical bans - Atkins v . Virginia and Roper
v. Simmons - the Court had looked for a national consensus before finding a particular punishment excessive . nl42
Based on the trends discussed in Atkins and Roper, the Louisiana Court decided there existed a national consensus
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concerning the appropriateness of capital punishment for child rapists because five other states had recently enacted
laws similar to those of Louisiana. nl43 But in this context, the Louisiana Court saw a consensus trending toward
expanding the death penalty's reach, not curtailing its availability.
The Court granted Patrick Kennedy's petition for writ of certiorari on direct appeal, not waiting for habeas review.
nl44
That Texas - and, specifically , its Solicitor General at that time, Ted Cruz - wanted to be heard in this case is not
surprising. For a group of states to team up and file an amicus brief in a death penalty case pending before the Supreme
Court is hardly unusual these days. Of the seventeen death penalty cases that the Court agreed to hear and that were
fully briefed in the six-year period from Kennedy (2008) to Hall (2014), some group of states filed an arriicus brief to
support a fellow state in thirteen of seventeen cases. n145 But it was unusual for the representative of the amici states to
file a motion asking to share time during oral argument with counsel for the Respondent, Louisiana's Attorney General.
Yet that is what Ted Cruz did . n 146 Even more unusual was the Supreme Court's decision to grant Cruz's request. And
more unusual still was the fact that Cruz was making this unusual request for the second time in a single Supreme Court
term - and his effort to secure time during oral argument as an amicus succeeded in both instances . nl47
[*179] It seemed that a sufficient number of the Court's justices really wanted to hear what Texas-qua-Cruz had to
say.
Then, despite these unusual developments, despite what some described as Cruz's skillful performance during oral
argument, and despite the profoundly disturbing and highly publicized details of the underlying crime, the state of
Louisiana lost. nl48 Having Texas on its side had not proven helpful to Louisiana and others seeking to expand the
death penalty because Texas had failed to persuade those (1) who were amenable to persuasion and (2) who occupied an
elite position that would have enabled them to effect change.
How did Texas, et al. endeavor to persuade the Court in this case? What precise aspects of their brief were
wanting? And how might this failure prove useful to those developing contemporary arguments for death-penalty
abolition?
A close look at the Texas Brief reveals a series of rhetorical strategies that a skilled and highly educated lawyer like
Ted Cruz should have known were likely to rub elites, committed to reason-based argumentation, the wrong way.
First, the Texas Brief in Kennedy was signed by nine states - only six of which had laws on the books like the one
at issue in the case (petmitting death as a punishment for a non-homicide crime, rape of a minor). The mismatch
between the number of signatories and the number of states that truly had a vested interest in the type of law at issue in
the case suggests disrespect for a basic precept of federal court jurisdiction: standing. Further, the Texas Brief
repeatedly characterized the laws of these six states as "many statutes" that reflected a "national consensus," nl49 a
point that is facially hyperbolic when one considers that most people would not consider six of fifty, or 8%, equivalent
to "many."
Second, at the time of the briefs submission, Texas had only recently enacted its death-penalty-for-child-rape law,
nl50 and the way in which the brief describes that development is not so much a legal argument as an overt appeal to
emotion. Several pages are devoted to heralding the law's passage by explaining how it was named after a Florida girl
who had been killed (not just raped) by a serial sex offender in a highly publicized case in that state. n 151 The Texas
Brief cites a Fox News story about the Florida crime as support for how the Texas legislature chose the name for
[*180] the law. n 152 The Pox News story is not, however, about the legislative process in Texas. n 153 It is about the
gruesome crime and the jury's ultimate recommendation that the Florida killer be sentenced to death. n 154 The article
does mention that the "killing prompted Florida and a number of other states to pass new laws cracking down on sex
offenders and to improve tracking of them through databases and satellite positioning devices." n 155 But the article
predates the state's legislative efforts to add to the categories of crimes that are punishable by death . The Texas Brief
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then cites statements from the Texas legislative record indicating various legislators' sense that death is the appropriate
punishment for repeat perpetrators of violent sex crimes against children, as if expressions of (understandable) outrage
about a horrible homicide that occurred in another state is sufficient proof that sentencing someone to death as a
punitive measure for a non-homicide passes constitutional muster. n156
Texas's central argument n 157 is the same seemingly clever, paradoxical argument that had been adopted by
Louisiana's highest court in the decision under review. That argument had turned the U.S. Supreme Court's "evolving
standards of decency" jurisprudence on its head. nl58 The Texas Brief argues that these standards should be assessed
by reviewing "objective indicia of national consensus," such as current legislative trends. nl59 Thus the Texas Brief
implies that what matters are not raw numbers but recent momentum. Texas contends that "evolution" does not i~ply a
particular direction over an extended period of time, but a recent spurt in any direction. The Texas Brief does not
acknowledge that the source of this argument is the Louisiana Supreme Court. Instead, the Texas Brief cites a law
student "Note" published in the South Carolina Law [*181) Review. nl60 This student Note is remarkable for its
patently provocative tone. It begins by asking the reader to imagine a man who comes home from work one day in a bad
mood and commences serially raping his five-year-old daughter and her two prepubescent friends. nl61 The writer
suggests that he does so !'over and over" again until he is finally reported; then, years later, all three victims learn that
they are infected with HIV. nl62 The Note's author then concludes that South Carolina's (then recent) Sex Offender
Accountability and Protection of Minors Act of 2006, which would permit sentencing a person who had committed such
crimes to death, should be found constitutional pursuant to her novel conception of "evolving standards of decency."
nl63
The Texas Brief, in building upon the Note's thesis, argues that, when the Court decided Roper, which banned the
death penalty for juvenile offenders, "just five States" had recently moved to abolish the juvenile death penalty. n 164 .
Further, the Texas Brief reminds the Court of its precept that "the clearest and most reliable objective evidence of
contemporary [societal] values" is "legislation." nl65 Aside from ignoring the number of states that had long before
abandoned the practice of executing juvenile offenders or that had rejected the death penalty altogether, the argument is
undercut by a rather striking non sequitur: "And, at least in the instant case, a jury of his peers unanimously agreed that
Patrick Kennedy's crime merited the death penalty." nl66 The Texas Brief does not explain how twelve citizens serving
on a jury in one profoundly disturbing case is analogous to a trend of legislative enactments such that one jury - or any
number of juries - are an appropriate barometer of "evolving standards of decency." Instead, the Texas Brief presumes
that a jury's expression of outrage in one case is a sufficient basis to sustain its proffered interpretation of constitutional
text.
Then, while ostensibly applying the Court's Eighth-Amendment jurisprudence, the Texas Brief mocks that
precedent. Through a pastiche that mixes and matches holdings and rationales from several inapposite Eighth
Amendment cases, the Texas Brief forges a new legal proposition: [*182) that "child rapists" may "reliably be
classified among the worst offenders." nl67 The Texas Brief asserts, for instance, that this proposition is not really new
because the Court had already established that the ""critical facet' of the culpability determination" is the degree of
criminal intent and "reckless indifference to the value of human life." nl68 The new legal principle, which the Texas
Brief treats as an existing legal principle, is radical because it suggests that any crime that is subjectively perceived as
"heinous" and indicative of "moral depravity" reflecting a "reckless indifference" toward its victim is a crime that
"warrants the death penalty." nl69 But this is not something the Supreme Court has ever said. Moreover, Roper- the
principal case upon which the Texas Brief relies - is about abolishing death as a penalty for juvenile offenders in part
because, as cognitive psychiatry has demonstrated, impulse control and other psychological factors related to judgment
are less developed in young people. n 170 Similarly, Tison is about the felony-murder rule and what degree of
participation is necessary for an individual's death sentence to be proportionate to the crime. n171 In other words,
neither of these cases is about non-homicide rape or crimes against children (although both cases involved offenders
who were under twenty-one). The reasoning of the Texas Brief, though, is that any crime that is horrible - and all
violent crimes, especially those perpetrated against children, are horrible - should be death-eligible if at least a handful
of states had recently been moved to find such crimes death-eligible.
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Finally, the Texas Brief devotes several pages to a graphic description of Kennedy's crime, concluding that,
because "in the judgment of his peers," he is a scumbag, he deserves the death penalty. nl72 But if viewed seriously
through the lens of logic, this argument exposes the whole problem with a sentencing process that amounts to inciting
feelings of moral outrage such that a jury will be inclined to punish in a pique of vengeance.
After providing the Court with graphic details of Kennedy's truly repulsive crime, the Texas Brief then provides
infonnation about the long-term, devastating effects of child abuse - on the child, extended family, and society. n 173
This argument is problematic for two distinct reasons . First, this information is not the sort that states, as amici , are
particularly well-suited to share with the Court since the states lack any special expertise in the subject matter. Perhaps
this lack of expertise is why the Texas Brief [*183] indulges in a serious ipse dixit. The Texas Brief cites a Heritage
Foundation report regarding the massive costs associated with child abuse, admitting that "evidence further suggests
that child abuse is a frequent precursor to adult criminality." n174 Second, putting aside any reasonable doubts one
might have about the efficacy of a report derived from an unknown research methodology on behalf of a conservative
interest group, the proposition that the report is intended to support actually undercuts the fundamental theme in the
Texas Brief. n175 If research shows that an abused child is more likely to become an adult sex offender, then the
penologic;al justification for executing child abusers is undercut because killing such abusers does nothing to deter
future crime. Once they have been victimized as a child, the abused child is poised to pass on the heinous legacy
through "sexual revictimization." nl 76 Thus the study actually exposes the futility of executing such child abusers
because it does nothing to break the cycle that produces people who are damaged to the point that they are predisposed
to commit such crimes. The more cogent argument arising from the study is that society's limited resources should be
used to try to break the cycle of child abuse by addressing the root causes of such abuse and to lift children out of
demonstrably abusive circumstances.
In short, the Texas Brief, while well-written in terms of style and sentence-level flair, is riddled with classic
fallacies unlikely to persuade the audience to whom the brief is directed. The Texas Brief:
. Overstates the degree to which the signatories represent a consensus and leans too heavily on the notion of an
emerging popular consensus (argumentum ad populum);
. Engages in arguments by distraction designed to inflame the emotions instead of appealing to reason;
. Seeks recourse to suspect authorities (such as Fox News, the Heritage Foundation, and a law student's Note);
. Implicitly impugns the motive of the Court itself by mocking its modem Eighth Amendment jurisprudence;
. Cherry picks quotes from the Court's precedent instead of respecting the context from which holdings were
derived;
. Begs the question whether death as a punishment for child rape furthers any valid penological objective; and
. Assumes a false causation (post hoc ergo propter hoc) in maintaining that executing child abusers will protect
society from the harms of child abuse, while adding that being a victim of child abuse itself likely engenders the
impulse in (some) adults to abuse [*184] children.
Because these fallacies are so rampant, they are not difficult to spot. Certainly, they were not lost on Justice
Kennedy who authored the majority opinion in this case. n177
The opinion roundly rejects the notion that death is a constitutional punishment for raping a minor simply because a
handful of states had recently passed statutes permitting such a punishment. nl78 The Court begins the opinion with a
reminder of how the rule of law is supposed to operate in our federalist system: "The National Government and, beyond
it, the separate States are bound by the proscriptive mandates of the Eighth Amendment to the Constitution of the
United States, and all persons within those respective jurisdictions may invoke its protection." n179 Then, after
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acknowledging the horrific nature of the crime at issue, the opinion confronts virtually all of the logical fallacies on
display in the Texas Brief and mounts a pointed defense of the Court's Eighth Amendment, "evolving standards of
decency" jurisprudence that the Texas Brief had sought to upend. nl 80
Ultimately, one must conclude that the Texas Brief, which failed so miserably, was written for an audience other
than the Court itself. Considering the errors recounted above, the highly intelligent, skilled lawyers involved in the
briefs preparation back in Texas could not have believed the brief would convince Justice Kennedy to join the more
predictable contingent of Justices Alito, Scalia, Thomas, and Chief Justice Roberts, who ultimately comprised the
dissenting block. Therefore, the Texas Brief, as legal advocacy, was a failure.
Why spend considerable time and tax-payer money on such a brief, on preparing for and participating in oral
argument as an amicus, and on defending a brand-new law if the goal was not to secure a win? Perhaps the answer is
that the real audience for the brief was not the Court at all, but the folks back home.
The Texas Briefs principal architect was, at the time, an unelected state official. But shortly after appearing in the
Kennedy oral argument for Texas, et al. and before a decision in that case was announced, Cruz left Texas's Solicitor
General's Office and entered private practice. n 181 Thereafter, Cruz announced hfs intention to run for the seat Senator
Kay Bailey Hutchison was vacating. n 182 His bid for the open seat was successful, (*185) primarily because he
defeated the state's long-standing Lieutenant Governor, the Republican establishment candidate, in a primary runoff by
a 14-point margin. n183 Since taking office, the junior senator from Texas has exhibited a noteworthy ability to play to
a base of "Values Voters," which tend to include folks committed to retaining a robust death penalty.
Of course, after Cruz's exit from the Solicitor General's Office, Texas actors did not cease spending public time and
money fighting against further incursions upon the death penalty - nor did Texas cease losing those fights at the
Supreme Court level. n J 84
But by inviting the Supreme Court Justices to side with Texas in tenns that seem to mock concepts that are
fundamental to the Court's stability and legitimacy , Texas, et al. were not likely to carry the day. They were not
speaking in terms calibrated to persuade the particular elites in a position to effect the kind of change Texas seemed to
be after. By contrast, Tuscany's Beccaria spoke to the elites of his day about the death penalty's costs in terms that
resonated with those elites' fundamental values. This portrait of contrasts suggests that if Texas just keeps on being
Texas, it will be easier for the persuadable members of the Court to conclude that Texas cannot be trusted with the death
penalty. Texas's willingness to defy Supreme Court mandates, not to mention international standards, to preserve an
unbridled death penalty threatens the stability of the Court and the federal republic itself.
[*186]
VI. Conclusion
The point of an argument, particularly any legal or public policy argument, is to persuade. For decades after Furman v.
Georgia, when the Supreme Court imposed what proved to be a short-term moratorium on the death penalty, proponents
of abolition have been marshalling all manner of arguments in an effort to persuade the Supreme Court, legislators, and
the general public that the death penalty should be abolished. At bottom, most of these arguments have been premised
on a moral imperative: the death penalty is wrong. The problem with arguments that hinge on moral imperatives is that
they do not tend to persuade unless the audience already shares the advocate's nonnative presuppositions. Rational
arguments that support a particular moral position do not change minds so much as fortify people who already possess a
particular normative view, inspiring them to recommit to values they have instinctively embraced and are, in a sense,
part of their very identities. n 185
Endeavoring to persuade those who strongly believe that the death penalty is just that the death penalty is morally
repugnant has been a quixotic enterprise. n 186 Perhaps that is why the arguments that are gaining the most traction
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today are reason-based arguments for death-penalty "repeal" that shift the conversation further away from the (utterly
false) choice between the human dignity of crime victims and the human dignity of the criminally-accused, focusing the
audience instead on values that resonate with contemporary American, cost-conscious culture. The contemporary
American version of Beccaria's cost-argument for abolition focuses on the ineluctably error-ridden system that, quite
literally, costs too much to maintain and monitor. Even assuming the morality of the death penalty, the question many
conservatives are now asking is: Can this ideal notion of Justice - that society can only be made whole after the
commission of the most heinous offenses through the death of the perpetrator - ever be implemented in a way that is not
arbitrary, capricious, inefficient, or unfair when the Government is in charge of the penal system? Elites in charge in
Texas, however, have too much to lose to join in this collective soul-searching.
In this article, I have tried to use the Texas phenomenon to tease out additional nuances involved in making a cost
argument for our times. I submit that before Texas can look more like Tuscany, the benefits certain key actors garner
from maintaining the death penalty must be included in the calculus. Despite hopeful signs, like the emergence of a
conservative entity whose objective is to cast doubt on the death penalty's efficacy, the [*187] enormous political
benefits some can reap from retaining the death penalty mean that Texas will not likely be jumping on the
repeal-bandwagon any time soon. Therefore, the Supreme Court of the United States - the only contemporary entity that
is, like Peter Leopold of 18th century Tuscany, capable of abolishing the death penalty with the stroke of (five) pens must be convinced that doing so would be worth the costs. The argument that might do the trick must target those on the
Court who can be persuaded - either because they have deep-seated, if unstated, moral convictions that the death penalty
is wrong, or because they care more about the Court's integrity than about Republican hegemony in Texas. nl 87 For
those members of the Court, successful arguments are ones that resonate with the precise culture of the Court itself - an
elite institution committed in principle to argumentation that transcends ideology and regional self-interests. To prevail
with these jurists, who owe their ultimate allegiance to the idea of a federal republic, arguments must affirm the Court's
place in overseeing the ultimate contours of criminal punishment within that republic.
Legal Topics:
For related research and practice materials, see the following legal topics;
Criminal Law & ProcedureSentencingAppealsCapital PunishmentCriminal Law & ProcedureSentencingCapital
PunishmentGeneral OverviewMilitary & Veterans LawMilitary JusticeSentencingCapital Punishment
FOOTNOTES:
nl. Francis Bacon, On Negotiation, in Bacon's Essays 413 (Richard Whately ed., 1856). This same
quotation was an epigram to the third edition of Cesare Beccaria's influential 18th century treatise On Crimes
and Punishment.
n2. This premise is derived from Andrew Hammel's thesis that elites are the ones who can and have
historically taken the lead in abolishing the death penalty. See Andrew Hammel, Ending the Death Penalty: The
European Experience in Global Perspective 7 (2010) (describing the forces that led modem Europe to abolish
the death penalty).
n3. Paul Friedland, Seeing Justice Done: The Age of Spectacular Capital Punishment in France 206 (2012).

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Case: 15-70035

Date Filed: 11/10/2015

WILLIAM STEPHENS, DIRECTOR

REPLY TO RESPONDENT-APPELLEES OPPOSITION TO STAY

Date Filed: 11/10/2015

Petitioner-Appellant respectfully files this Reply to the Opposition filed by

Date Filed: 11/10/2015

This Kafkaesque scenario is what breeds cynicism about the

Date Filed: 11/10/2015

Date Filed: 11/10/2015

Date Filed: 11/10/2015

Court acknowledged that, [t]o be sure Christeson would face a host of

See Opening Brief.

Date Filed: 11/10/2015

The State does not explain how its view

As explained below, that procedural maneuver is

Most of the States Opposition Purports to Address the Merits of the

Date Filed: 11/10/2015

ROA.15-70035.880.1 Because the district court ruled on CJA Counsels motion

Date Filed: 11/10/2015

Because the State took no

McFarland expressly recognizes that the right to 3599 counsel necessarily

Date Filed: 11/10/2015

The States mootness argument is factually incorrect.

Sham clemency proceedings are, as CJA Counsel noted in the

Date Filed: 11/10/2015

Date Filed: 11/10/2015

Tamayo involved a section-1983 facial challenge to Texass

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proceedings. ROA.15-70035.243. This conflict suggests that Mr. Holiday, at the

The States attack is at odds with the core rationale of

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The clemency application that CJA Counsel hastily assembled

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Death-sentenced indigents are entitled to appointed counsel who are not

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See id. at 893-96

(granting relief to an indigent capital defendant who sought appointment of

The State Fundamentally Misunderstands the Concept of Standing.

Mr. Holiday obviously has standing to

Date Filed: 11/10/2015

See ROA.15-70035.848; ROA.15-70035.850-.851; ROA.15-70035.924;

ROA.15-70035.857; ROA.15-70035.960-.961; ROA.15-70035.965; see also CJA

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Date Filed: 11/10/2015

In short, the doctrine of standing has nothing to do with whether undersigned

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Indeed, a lawyer is a fiduciary bound by certain ethical responsibilities, such as the

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515 Congress Avenue, Suite 1900 Austin, TX 78701

October 19, 2015

Holiday v. Stephens, Civil Action No. 4:11-CV-1696

Date Filed: 11/10/2015

Authorization. You specifically authorize me to communicate with your current

representation you will provide with Mr. Burr:

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Date Filed: 11/10/2015