Sean Derrick O'Brien #1030

Sean Derrick O'Brien

Executed July 11, 2006 06:19 p.m. CST by Lethal Injection in Texas

26th murderer executed in U.S. in 2006
1030th murderer executed in U.S. since 1976
14th murderer executed in Texas in 2006
369th murderer executed in Texas since 1976

Since 1976 Date of Execution State Method Murderer
(Race/Sex/Age at Murder-Execution) Date of
Birth Victim(s)
(Race/Sex/Age at Murder) Date of
Murder Method of
Murder Relationship
to Murderer Date of
Sentence

1030 07-11-06 TX Lethal Injection Sean Derrick O'Brien
B / M / 18 - 31
04-05-75 Jennifer Ertman
W / F / 14
Elizabeth Pena
W / F / 16 06-24-93 Strangulation with belt None 04-07-94

Summary:
O'Brien was one of six members of a fledgling street gang drinking beer after initiating a new gang member. Elizabeth Pena, 16, and Jennifer Ertman, 14, were walking home from a friend's house, taking a shortcut along some railroad tracks when they stumbled upon the group. Evidence showed the girls were gang raped for more than an hour, then were kicked and beaten before being strangled. A red nylon belt was pulled so tight around Jennifer Ertman's neck that the belt snapped. The belt was later recovered from O'Brien's home. The bodies of the two teenage girls were found four days after they failed to return from a friend's house. When the bodies were discovered, they were decomposing and mummifying in 100-degree heat. O'Brien, who confessed to police, was one of six gang members convicted in the case and the first to be executed. The ninth-grade dropout, who had previous arrests for shoplifting a pistol, assault and auto theft, also was a suspect in a murder six months before the girls were killed but never was charged. Evidence put him at a Houston park where the body of Patricia Lopez, 27, was found. A beer can carrying his fingerprints was found under the remains of the woman. She had been raped, eviscerated and had her throat cut.

Two of the gang members, Efrain Perez and Raul Villarreal, had their death sentences commuted to life in prison when the Supreme Court last year barred executions for those who were 17 at the time of their crimes. Peter Cantu, described by authorities as ringleader of the gang, remains on death row without an execution date. Jose Medellin, who was condemned and who O'Brien said was at one end of the belt being pulled around Ertman's neck as he yanked on the other, had his case returned to the state courts under an order from President Bush. Medellin is among some 50 Mexican-born offenders who argue that under international law they should have been allowed assistance from the Mexican Consulate before trial. A sixth person convicted, Medellin's brother, Vernancio, was 14 at the time and received a 40-year prison term.

Citations:

Final Meal:
Declined.

Final Words:
"I am sorry. I have always been sorry," O'Brien said, holding his head up and looking straight at relatives of his victims. "It is the worst mistake that I ever made in my whole life. Not because I am here but because of what I did and I hurt a lot of people, you and my family." He repeated again and again that he was sorry.

Internet Sources:

Texas Department of Criminal Justice - Executed Offenders (Derrick O'Brien)

Inmate: O'Brien, Sean Derrick
Date of Birth: 4/5/75
TDCJ#: 999131
Date Received: 11/18/94
Education: 9 years
Occupation: laborer
Date of Offense: 6/24/93
County of Conviction: Harris
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5 ft 08 in
Weight: 177

Texas Department of Criminal Justice

Texas Attorney General Media Advisory

MEDIA ADVISORY - Wednesday, July 5, 2006 - Derrick Sean O'brien Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Derrick Sean O’Brien, who is scheduled to be executed after 6 p.m. Tuesday, July 11, 2006. On September 9, 1997, Derrick Sean O’Brien was sentenced to die for the June 1993 capital murder of Houston teenager Jennifer Ertman. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

On the night of June 24, 1993, O’Brien participated in the gang initiation of Raul Omar Villareal. Four other gang members, Peter Cantu, Roman Sandoval, Joe Medellin, and Efrain Perez, were present at the initiation, as were Frank Sandoval and Vernancio Medellin, brothers of two of the gang members. The initiation consisted of Villareal fighting each of the other gang members for several minutes. Following this ritual, the gang members drank beer.

At about 11:30 p.m., 14-year old Jennifer Ertman and 16 year old Elizabeth Pena ran across the gang initiation as they were returning home. The girls were raped and strangled. O’Brien and other gang members later boasted that they gang raped both girls. Autopsies revealed that both girls died of trauma to the neck consistent with strangulation. The girls’ bodies were found on June 28, 1993. They were close to each other, and were both in an advanced state of decomposition.

O’Brien was arrested on June 29, 1993, as were Peter Cantu, Efrain Perez, Jose and Vernancio Medellin, and Raul Villareal. When police knocked on O’Brien’s door and announced their presence, O’Brien attempted to run out the back door. He was arrested by officers waiting in back. After he was advised of his rights and informed he was under arrest for capital murder, O’Brien told police that he gave his belt to Joe Medellin, who used it to strangle one of the girls. At Medellin’s instruction, O’Brien grabbed one end of the belt and helped strangle the victim. They pulled so hard that one end of the belt broke off. O’Brien consented to a search of his apartment, and the police found the belt.

PROCEDURAL HISTORY

February 4, 1994 -- O’Brien was indicted by a Harris County grand jury for the capital murder of Jennifer Ertman.
April 7, 1994 -- O’Brien was found guilty by a jury of capital murder.
April 9, 1994 -- Following a separate punishment hearing, O’Brien was sentenced to death.
May 15, 1996 -- The Texas Court of Criminal Appeals affirmed O’Brien’s conviction and sentence.
January 21, 1997 -- The U.S. Supreme Court denied O’Brien’s petition for writ of certiorari.
August 23, 2001 -- O’Brien filed an application for writ of habeas corpus in the state trial court.
February 6, 2002 -- The Court of Criminal Appeals denied O’Brien’s application for writ of habeas corpus.
May 16, 2002 -- O’Brien filed a federal petition for writ of habeas corpus in a U.S. district court.
January 14, 2005 -- The federal district court dismissed O’Brien’s federal habeas petition and denied a certificate of appealibility.
May 9, 2005 -- O’Brien requested permission to appeal from the 5th U.S. Circuit Court of Appeals.
December 27, 2005 -- The Fifth Circuit Court denied O’Brien’ request to appeal the district court’s denial of his federal habeas petition.
March 25, 2006 -- O’Brien petitioned the U.S. Supreme Court for a writ of certiorari. This petition is currently pending.
April 26, 2006 -- O’Brien asked the Supreme Court for a stay of execution.
June 5, 2006 -- The Supreme Court declined to hear the case. PRIOR CRIMINAL HISTORY O’Brien had three prior arrests before committing this capital murder. He was arrested for shoplifting a pellet pistol, simple assault, and for stealing a car.

Houston Chronicle

"Girls' killer apologizes before execution," by Michael Graczyk. (Associated Press July 11, 2006, 8:48PM)

HUNTSVILLE — Condemned murderer Derrick Sean O'Brien apologized profusely before being executed this evening for the torture, rape and strangling of two teenage Houston girls 13 years ago. "I am sorry. I have always been sorry," O'Brien said, holding his head up and looking straight at relatives of his victims. "It is the worst mistake that I ever made in my whole life. Not because I am here but because of what I did and I hurt a lot of people, you and my family." He repeated again and again that he was sorry. O'Brien was pronounced dead at 6:19 p.m., seven minutes after the lethal drugs began.

O'Brien was one of six members of a fledgling street gang arrested in the slayings of Elizabeth Pena, 16, and Jennifer Ertman, 14. Their bodies were found four days after they failed to return from a friend's house. The girls had been attacked as they took a shortcut along some railroad tracks and stumbled on the group drinking beer after initiating a new gang member.

Ertman's father and Pena's parents were among the witnesses to the lethal injection, the 14th this year in Texas, the nation's most active death penalty state. "It's been a long time coming," Adolfo Pena, who lost his daughter in the attack, said after watching the execution. "I wish we could have done all six at once. "We finally, finally got some justice for Elizabeth and Jennifer. You don't know how that feels to have some justice for my daughter, for the stuff that she had to go through."

Pena, who wore a T-shirt with the photos of the two slain girls beneath his shirt, said O'Brien's apology from the death chamber gurney "didn't mean much to me." "It doesn't bring my daughter back, but it's just a little bit late for that, don't you think?" he said.

O'Brien, 31, was spared a trip to the death house May 15 when his lawyers won a reprieve from the Texas Court of Criminal Appeals the day before he was to be executed. Days later, however, the same court lifted its order, clearing the way for today's execution.

The prisoner's attorneys asked the U.S. Supreme Court to stop the execution so justices could review his case. They argued there's no legal procedure allowing condemned Texas prisoners to raise challenges that drugs used in lethal injections "will cause O'Brien to endure unnecessary, excessive, and excruciating pain during the course of this execution." About 20 minutes before O'Brien was scheduled to die, the high court rejected his appeal.

Evidence showed the girls were gang raped for more than an hour, then were kicked and beaten before being strangled. A red nylon belt was pulled so tight around Jennifer Ertman's neck that the belt snapped. When the bodies were discovered, they were decomposing and mummifying in 100-degree heat. A smiling O'Brien, then 18, was seen on a videotape of the crowd that gathered as investigators worked the scene of the grisly discovery. A tip from the brother of one of the gang members led police to the arrests in the killings that shocked even crime-hardened Houston.

"I'm no fan of the death penalty, but that guy brought it on himself," said Steve Baldassano, who prosecuted O'Brien. "It was horrible."

O'Brien, who confessed to police, was one of six gang members convicted in the case and the first to be executed. The ninth-grade dropout, who had previous arrests for shoplifting a pistol, assault and auto theft, also was a suspect in a murder six months before the girls were killed but never was charged. Evidence put him at a Houston park where the body of Patricia Lopez, 27, was found. A beer can carrying his fingerprints was found under the remains of the woman. She had been raped, eviscerated and had her throat cut.

On the Web:
Texas Department of Criminal Justice execution schedule http://www.tdcj.state.tx.us/stat/scheduledexecutions.htm
Derrick Sean O'Brien http://www.ccadp.org/derrickobrien.htm
Jennifer Ertman, Elizabeth Pena http://www.murdervictims.com/Voices/jeneliz.html

Reuters News

"Texas executes man for rape, murder of two teens." (Tue Jul 11, 2006 8:13pm ET)

HUNTSVILLE, Texas (Reuters) - A Texas man was put to death by lethal injection on Tuesday for his part in the 1993 gang-rape and murder of two Houston teenagers. Derrick O'Brien, 31, was condemned for raping and killing Jennifer Ertman, 14, and Elizabeth Pena, 16, in a Houston park on June 24, 1993.

Prosecutors said O'Brien was one of six gang members who raped Ertman and Pena for over an hour in a Houston park before strangling them. The girls were taking a shortcut home through the park when they were attacked. O'Brien told police he helped strangle Ertman with his belt, which snapped from the strain put on it during the murder.

O'Brien's execution was delayed in May after his lawyers claimed lethal injection violates the U.S. Constitution's ban on cruel or unusual punishment. The claim was rejected by a Texas appeals court.

While strapped to a gurney in the death chamber on Tuesday, O'Brien apologized to Ertman's and Pena's families. "I am sorry," he said. "I have always been sorry. It is the worst mistake that I ever made in my whole life. Not because I am here, but because of what I did, and I hurt a lot of people -- you and my family. I am sorry. I have always been sorry."

O'Brien was the 14th person executed in Texas this year and the 369th put to death since the state resumed capital punishment in 1982, six years after the U.S. Supreme Court lifted a national death penalty ban. Both totals lead the nation.

O'Brien did not request a final meal.

ProDeathPenalty.com

Jennifer Ertman and Elizabeth Pena were 14 and 16 years old, respectively. They were friends who attended the same high school in Houston, Texas, Waltrip High School. On June 24, 1993, the girls spent the day together and then died together. They were last seen by friends about 11:15 at night, when they left a friend's apartment to head home, to beat summer curfew at 11:30. They knew they would be late if they took the normal path home, down W. 34th Street to T.C. Jester, both busy streets. They also knew they would have to pass a sexually-oriented business on that route and so decided to take a well-known shortcut down a railroad track and through a city park to Elizabeth's neighborhood.

The next morning, the girls parents began to frantically look for them, paging them on their pagers, calling their friends to see if they knew where they were, to no avail. The families filed missing persons reports with the Houston Police Department and continued to look for the girls on their own. The Ertmans and Penas gathered friends and neighbors to help them pass out a huge stack of fliers with the girls' pictures all over the Houston area, even giving them to newspaper vendors on the roadside.

Four days after the girls disappeared, a person identifying himself as 'Gonzalez' called the Crimestoppers Tips number. He told the call taker that the missing girls' bodies could be found near T.C. Jester Park at White Oak bayou. The police were sent to the scene and searched the park without finding anything. The police helicopter was flying over the park and this apparently prompted Mr. 'Gonzalez' to make a 911 call, directing the search to move to the other side of the bayou. When the police followed this suggestion, they found the badly decaying bodies of Jenny and Elizabeth. Jennifer Ertman's dad, Randy Ertman, was about to give an interview regarding the missing girls to a local television reporter when the call came over a cameraman's police scanner that two bodies had been found. Randy commandeered the news van and went to the scene that was now bustling with police activity. Randy Ertman appeared on the local news that evening, screaming at the police officers who were struggling to hold him back, "Does she have blond hair?Does she have blond hair?!!?" Fortunately, they did manage to keep Randy from entering the woods and seeing his daughter's brutalized body and that of her friend Elizabeth. The bodies were very badly decomposed, even for four days in Houston's brutal summer heat and humidity, particularly in the head, neck and genital areas. The medical examiner later testified that this is how she could be sure as to the horrible brutality of the rapes, beatings and murders.

The break in solving the case came from, of course, the 911 call. It was traced to the home of the brother of one of the men later sentenced to death for these murders. When the police questioned 'Gonzalez', he said that he had made the original call at his 16 year-old wife's urging. She felt sorry for the families and wanted them to be able to put their daughters' bodies to rest. 'Gonzalez' said that his brother was one of the six people involved in killing the girls, and gave police the names of all but one, the new recruit, whom he did not know. His knowledge of the crimes came from the killers themselves, most of whom came to his home after the murders, bragging and swapping the jewelry they had stolen from the girls.

While Jenny and Elizabeth were living the last few hours of their lives, Peter Cantu, Efrain Perez, Derrick Sean O'Brien, Joe Medellin and Joe's 14 year old brother were initiating a new member, Raul Villareal, into their gang, known as the Black and Whites. Raul was an acquaintance of Efrain and was not known to the other gang members. They had spent the evening drinking beer and then "jumping in" Raul. This means that the new member was required to fight every member of the gang until he passed out and then he would be accepted as a member. Testimony showed that Raul lasted through three of the members before briefly losing consciousness. The gang continued drinking and 'shooting the breeze' for some time and then decided to leave. Two brothers who had been with them but testified that they were not in the gang left first and passed Jenny and Elizabeth, who were unknowingly walking towards their deaths.

When Peter Cantu saw Jenny and Elizabeth, he thought it was a man and a woman and told the other gang members that he wanted to jump him and beat him up. He was frustrated that he had been the one who was unable to fight Raul. The gang members ran and grabbed Elizabeth and pulled her down the incline, off of the tracks. Testimony showed that Jenny had gotten free and could have run away but returned to Elizabeth when she cried out for Jenny to help her. For the next hour or so, these beautiful, innocent young girls were subjected to the most brutal gang rapes that most of the investigating officers had ever encountered. The confessions of the gang members that were used at trial indicated that there was never less than 2 men on each of the girls at any one time and that the girls were repeatedly raped orally, anally and vaginally for the entire hour. One of the gang members later said during the brag session that by the time he got to one of the girls, "she was loose and sloppy." One of the boys boasted of having 'virgin blood' on him. The 14-year-old juvenile later testified that he had gone back and forth between his brother and Peter Cantu since they were the only ones there that he really knew and kept urging them to leave. He said he was told repeatedly by Peter Cantu to "get some". He raped Jennifer and was later sentenced to 40 years for aggravated sexual assault, which was the maximum sentence for a juvenile.

When the rapes finally ended, the horror was not over. The gang members took Jenny and Elizabeth from the clearing into a wooded area, leaving the juvenile behind, saying he was "too little to watch". Jenny was strangled with the belt of Sean O'Brien, with two murderers pulling, one on each side, until the belt broke. Part of the belt was left at the murder scene, the rest was found in O'Brien's home. After the belt broke, the killers used her own shoelaces to finish their job. Medellin later complained that "the bitch wouldn't die" and that it would have been "easier with a gun". Elizabeth was also strangled with her shoelaces, after crying and begging the gang members not to kill them; bargaining, offering to give them her phone number so they could get together again.

The medical examiner testified that Elizabeth's two front teeth were knocked out of her brutalized mouth before she died and that two of Jennifer's ribs were broken after she had died. Testimony showed that the girls' bodies were kicked and their necks were stomped on after the strangulations in order to "make sure that they were really dead." The juvenile, Venancio Medellin, pled guilty to his charge and his sentence was reviewed when he turned 18, at which time he was sent to serve the remainder of the sentence in prison. The five killers were tried for capital murder in Harris County, Texas, convicted and sentenced to death. See US 5th Circuit Court summary of this case.

UPDATE: The Texas Court of Criminal Appeals issued a stay 27 hours before Sean O'Brien's scheduled execution in order to consider his appeal regarding the constitutionality of lethal injection. Two days later, the same court reversed itself and lifted the stay, however the death warrant had expired and the process of setting a new execution date will begin again.

Texas Execution Information Center by David Carson.

Derrick Sean O'Brien, 31, was executed by lethal injection on 11 July 2006 in Huntsville, Texas for the rape and murder of two teenage girls.

Elizabeth Pena, 16, and Jennifer Ertman, 14, spent the evening of 24 June 1993, at the swimming pool of a friend's apartment complex in Houston. As their midnight curfew approached, they debated the fastest route to Pena's home. They decided to follow the railroad tracks through a city park.

That same evening, eight young men were in the park participating in a gang initiation ritual. Raul Villareal, 17, was being initiated into the Black and White gang. The other gang members present were O'Brien, Peter Cantu, and Jose Medellin - all 18 - Efrain Perez, 17, and Roman Sandoval. Frank Sandoval and Vernancio Medellin, brothers of two of the gang members, were also present. The initiation consisted of Villareal fighting each of the other gang members for several minutes. Following this ritual, they drank beer.

At about 11:30 p.m., the two girls walked by. As they passed, Jose Medellin grabbed Pena and dragged her down a hill. She screamed for help. Ertman tried to help Pena, but Medellin grabbed her and dragged her down the hill as well. The boys then raped both girls for more than an hour before beating and strangling them. Their bodies, which were left in the woods, were discovered four days later, decomposing rapidly in the sweltering Houston summer heat.

News crews came out to cover the story of two bodies being discovered in a Houston park. O'Brien was caught on videotape in the crowd that gathered at the scene of the discovery. He was smiling. He and the other suspects were arrested after police received a tip from a brother of one of the gang members.

At his arrest, O'Brien confessed that he and the other gang members raped both of the girls. He also confessed that he and Jose Medellin strangled Ertman. They wrapped his red nylon belt around her neck, then he pulled at one end while Medellin pulled at the other, until the belt snapped in two. The belt was found in a search of O'Brien's apartment.

The medical examiner testified that, in addition to both girls being raped and strangled, Ertman had three fractured ribs, and Pena had one tooth that was fractured and several that were missing, indicating that she had been punched or kicked in the mouth. O'Brien had previously been arrested for shoplifting, assault, and stealing a car. A Houston police officer testified that, about three months before the murder, he witnessed O'Brien and Cantu punch, kick and drag a man at a fast food restaurant. Gregory Ristivo testified that he and O'Brien stole between 25 and 50 cars together, and that O'Brien also assaulted people to steal their shoes. Ristivo also testified that O'Brien and Cantu would start fights with random people.

O'Brien's mother and grandfather also testified against him at his punishment hearing, describing him as "cruel" and "intentionally harsh." O'Brien was also suspected in the murder of Patricia Lopez, who was found stabbed to death in a Houston park on 4 January 1993. Jose Martin Medellin, the brother of Jose and Vernancio Medellin, testified that Cantu told him that O'Brien killed Lopez. O'Brien was present when Cantu made this statement, and agreed with it. O'Brien was also connected to the crime by fingerprints found on beer bottles found at the scene.

A jury convicted O'Brien of the capital murder of Jennifer Ertman in April 1994 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in May 1996. All of his subsequent appeals in state and federal court were denied.

Four of the other assailants that night were also convicted of capital murder and sentenced to death. Peter Cantu and Jose Medellin remain on death row. Raul Omar Villareal and Efrain Perez had their sentences commuted to life in June 2005 because they were 17 at the time of the crime. A sixth assailant, Vernancio Medellin, who was 14 at the time, was convicted of aggravated sexual assault and sentenced to 40 years in prison. He remains in custody as of this writing. No information was available on the disposition or status of Roman or Frank Sandoval.

The Pena and Ertman families were instrumental in getting Texas law changed so that victims' relatives are allowed to make statements at a trial's conclusion and to witness the execution of their loved ones' killers. According to Andy Kahan, crime victims advocate for Houston Mayor Bill White, 75 percent of victims' families elect to witness executions.

In September 2002, O'Brien wrote a statement advocating the abolition of the death penalty, which was posted an anti-death-penalty web site. O'Brien wrote, "I wonder how many children could be saved or kept living, who would otherwise die, with the monies, states use to kill men and women on death row ... We bear the responsibility of showing our children how to be human and if we can't then our world will continue to suffer for it. Life is a miracle and therefore precious each time one is taken before its time, the world loses something special." O'Brien did not address his crime in the statement. He refused media requests for interviews.

O'Brien's lawyer filed an unsuccessful last-chance appeal to the U.S. Supreme Court, alleging that the drugs used in lethal injection "will cause O'Brien to endure unnecessary, excessive, and excruciating pain during the course of this execution." The court rejected this appeal at about 5:40 p.m., twenty minutes before the execution was scheduled to begin.

"I am sorry. I have always been sorry," O'Brien said in his last statement. "It is the worst mistake that I ever made in my whole life." The lethal injection was then started. He was pronounced dead at 6:19 p.m.

Adolfo Pena, Elizabeth's father, watched O'Brien die. When asked if he witnessed any "excruciating pain," Pena answered, "I didn't see any suffering ... he just closed his eyes and went to sleep." "I wish to God my daughter could have died like that."

National Coalition to Abolish the Death Penalty

Derrick O'Brien, TX - July 11

Do Not Execute Derrick O'Brien!

Derrick Sean O’Brien was convicted of capital murder and sentenced to death for the 1993 rape and murder of two teenage girls, Jennifer Entman, 14, and Elizabeth Pena, 16, in Houston. On the night of June 24, Entman and Pena were walking home from a friend’s house when O’Brien, along with five others, attacked the two high school sophomores. According to court documents, the attack was part of a gang initiation. The bodies of the two girls remained undiscovered until police received an anonymous tip from the brother of one of O’Brien’s accomplices four days after the attack. O’Brien was arrested at his home the following day. O’Brien’s trial began on April 4, 1994 and he was found guilty of capital murder only two days later. On April 9, 1994, O’Brien was sentenced to death.

Although there is no question as to O’Brien’s guilt, there are circumstances surrounding the punishment phase of O’Brien’s trial that do warrant closer consideration. For one, O’Brien’s defense counsel presented only one witness. In the punishment phase of a death penalty trial a jury is asked to weigh mitigating factors, such as certain aspects of a defendant’s character or background, including moral culpability, as a basis for a sentence less than death. The one witness brought to testify on O’Brien’s behalf was a records custodian employed by the Harris County Jail who testified that there were no disciplinary actions taken against O’Brien during his time at the jail. O’Brien’s counsel also choose not to call several witnesses to discuss O’Brien’s mental health. These witnesses would have attested that O’Brien experienced child abuse and that O’Brien was diagnosed with an “anti-social disorder.” The combination of the defense not calling the above witnesses allowed O’Brien to argue in his appeal that counsel was ineffective and that mitigating factors were not taken into account.

The ability of the jury to properly weigh mitigating factors against the potential sentence of death is further called into question by the fact that the prosecutor repeatedly told the jury that there must be a connection between the mitigating evidence and the crime. Contrary to the prosecutor’s statements otherwise, the Supreme Court has set a “low threshold of mitigating circumstances.” Therefore, both the fact that O’Brien was 18 at the time of the crime, as well as evidence regarding his good behavior while in jail, are relevant mitigating factors. Such comments were made by the both during jury selection, as well as during the prosecutor’s closing arguments. During closing arguments the prosecutor stated:

Then you move on to [Special Issue] No. 3, then you look at the Charge. And it tells you to ask yourself if there's anything mitigating. And we talked about what does mitigating mean.... What, if anything, is mitigating about him that you heard? The only thing that I can possibly think of is that the guy's learning disabled in arithmetic, he can't add... It doesn't take a rocket scientist to figure out if you can't add that doesn't give you the right to go out and kill ... other people. So there's not anything at all that you heard from any witness that is mitigating.

Thus, the proper procedural instructions given to the jury by the judge regarding mitigating evidence were negated by the prosecutor’s comments. In other words, it is likely that the jury, believing the prosecutor’s statement that there must be a connection between the mitigating evidence and the crime, did not properly weigh the mitigating evidence that they were presented with and ultimately decided upon a sentence that they would not have otherwise.

In December of 2005 the U.S. Fifth Circuit Court of Appeals denied O’Brien’s request for a certificate of appealability despite the evidence presented in support of the issues outlined above. There is no way to say for sure that a different jury, one that had been spared the prosecutor’s commentary, would not have decided upon a different fate for O’Brien.

On May 15th of 2006, Derrick O’Brien was granted a temporary stay of execution in response to a last minute writ of habeas corpus. O’Brien argued that the three chemical combination used by Texas to carry out executions may "unnecessarily create a risk that O’Brien will suffer excruciating excessive pain during the administration of his lethal injection." In a similar case in Florida, Clarence Hill was granted a stay of execution on the same grounds.

Two days later on May 17th O’Brien’s stay of execution was lifted. The main argument for lifting the stay was that O’Brien brought forth no scientific or factual evidence showing that the chemicals used in a lethal injection cause any pain. Judge’s Holcomb and Price, in a dissenting opinion, stated that they believed the stay of execution was originally made to give the court time to rule on this appeal, but that the decision to lift the stay was rushed. Neither judge makes a statement about whether or not the method of lethal injection in Texas violates the eighth amendment; however they do express an interest in seeing the matter resolved in an actual hearing where O’Brien would be able to present such evidence. Derrick Sean O’Brien should not be executed without being able to present all of the above evidence in court, including mitigating and scientific evidence.

The Houstonist

"Rapist/Murderer Scheduled to Die Tonight." (7/11/06) Derrick O'Brien, the former gang member who at the age of 18 killed two young Houston girls, is scheduled to die tonight after his reprieve, issued May 15th by the Texas Court of Criminal Appeals, was recinded. O Brian and several friends, members of a gang, gang-raped and strangled Jennifer Ertman and her friend Elizabeth Pena in 1993. The girls were killed after they took a shortcut home one night and stumbled upon some teenagers drinking beer after intiating a new gang member, says KHOU. Fingerprint evidence, and a tip from a brother of one of the gang members, led police to O'Brien, one of 6 gang members convicted for the slaying. (He had also been a suspect in another murder, though he was never charged).

Several of the convicted killers are on death row: two others have had their death sentences commuted to life in prison because they were only seventeen at the time of the crime. One of the convicted killers is a major plaintiff in a suit that claims Mexican nationals accused of crimes in Texas have been convicted unlawfully because they were not alllowed access to help from the Mexican Consulate.

O'Brien himself was one of the Texas inmates claiming that lethal injection constitutes cruel and unusual punishment. Though the claim led to a temporary stay of execution, he has now exhausted his appeals and will likely be executed as scheduled tonight, making him the first to die for this crime and the fourteenth to be executed in Texas this year.

Candian Coalition to Abolish the Death Penalty (Inmate Homepage)

Derrick O'Brien writes on the Abolition movement:

Sept. 2002 -

As you know, the current fight against the death penalty is growing, but is it taking the right direction ? Lots of people support the d/p, especially now with 9/11, but most are not educated on the negatives of death row other than the innocence issue and the execution of mentally retarded ending. To be blunt, most Americans are concerned with money more than anything else; capitalism rules here. I believe that if the general public knew that millions are spent (per inmate) on the death penalty from trial to executions, there would be an outcry.

If it can be shown that these monies could be better spent on the betterment of communities and comprehensive programs that head off crime, I believe many people would come around. The wrongness of the d/p is being shown solely from a moralistic standpoint but is this effective here where morals have deteriorated to a large extent ? We are geared up to go and raze Iraq to the ground (again) because of one man. The public supports it but in doing so also supports the killing of hundreds of people who have absolutely no control over there. If the majority of Americans don't really care about the killing of hundreds of people then how can they care for us on death row ?

No, morals aren't the way to approach the struggle, financially is. If we had people out saying that they don't want millions of their tax dollars going for a useless system every year. I'll bet the politicians'll reach then. We have to show that its cheaper and more effective to house an offender for life than to execute. The extra money can be used for better law enforcement, better educational programs, community centers, etc. On average, about 4 million dollars is spent per inmate on death row from trial to execution; there are close to 500 inmates here in Texas alone. Nationwide this is a lot of money spent for no other reason than retribution. There are a whole array of beneficial programs that can be actualized with the money used for capital defense and prosecution; lets say children's healthcare for instance.

I wonder how many children could be saved or kept living, who would otherwise die, with the monies, states use to kill men and women on death row. Isn't it a worthwhile thing to explore ? I believe that it is. How many much needed operations and treatments could be given that are now too costly by some ? How many people who need specialized treatment would receive it? It is a shame that it comes down to money versus morals and what's right, but with revenge and vengeance being so much a staple of American society now, the struggle has to take on a new dimension.

Education is the key, and if we can show how many people can benefit from the abolition of the death penalty I believe many would support it although not for the right reasons. Imagine how a person whose wife, child, parent is sick would feel to know that with just half of what their state spends on death row inmate they (or he) could get the very best of treatment for a loved one. This could be a reality if people would just see with their hearts. On a deeper level though, it is incumbent that we all develop a genuine respect for all forms of life if systems like the death penalty are to become obsolete. As it stands, our nations youth (and future) are losing this inherent humanity because of our own lack of it. It all comes down to us, the adults, to show the way to a world where a persons sole wish is for the happiness of the next. We bear the responsibility of showing our children how to be human and if we can't then our world will continue to suffer for it. Life is a miracle and therefore precious each time one is taken before its time , the world loses something special. All of this may sound strange coming from me, a death row inmate, but if I never strove to change even knowing my wrongs, I couldn't call myself human. ....

Derrick Sean O'Brien 999131
3872 FM 350 South
Livingston Texas 77351 USA

Derrick's Original Pen Pal Request to the CCADP:

Hello my name is Sean, and I'm writing...because I'm very interested in receiving a friend. I look forward to you hearing from you soon, and till I do I remain sincerely yours,

UrbanGrounds.Com

On June 24, 1993 while walking home, Elizabeth Pena (16) and Jennifer Ertman (15) were kidnapped, brutally beat and raped, and then strangeled to death by a gang known as the Black and Whites. Peter Cantu, Raul Villareal, Efrain Perez, Jose Medellin, and Sean Derrick O’Brien were all convicted and sentenced to die for their participation in these two little girls’ deaths.

Tomorrow —nearly 13 years after the crimes were committed — Sean Derrick O’Brien will be the first person involved to be executed by the State of Texas. 13 years to carry out the sentence of a man who confessed to using his own belt to strangle one of the girls to death after he raped her. Sickening. He should have been drug behind the courthouse and shot in the head within second of uttering that confession.

NOTE — Villareal and Perez have since had their sentences commuted to life after the Supreme Court of the United States ruled that the execution of killers who were under 18 when they committed their crimes was no longer constitutional. Perez and Villareal were both 17 at the time they killed these two little girls.

Another One of Jennifer Ertman’s Killers Trying to Avoid the Death Penalty

On March 1, the Supreme Court of the United States (SCOTUS) ruled that the Constitution forbids the execution of killers who were under 18 when they committed their crimes. Unbelievably, Monsieurs Kennedy, Breyer, Souter, and Stevens, and Madame Bader Ginsburg based their decisions on International opinion. With that ruling, pieces-of-shit like Efrain Perez and Raul Villarreal will not face the death sentence that they deserve.

You remember these two fine young men, right? They were responsible for the deaths of Jennifer Ertman (14) and Elizabeth Pena (16). Each girl was repeatedly raped by Villarreal and his fellow gang members, and then strangled to death. Villarreal later bragged that he stepped on the neck of Jennifer Ertman in an effort to strangle her because the “bitch wouldn’t die” after being strangled with a belt.

Well, today, one of Villareal’s ‘fellow gang members’—Jose Medellin—who helped to rape and murder those two young girls, is looking to have his death sentence commuted, too. Not because of his innocence. Nobody, not even Medellin, claims he’s innocent of the crimes he’s sitting on death row for. Medellin’s biggest mistake was not being under the age of 18 when he committed rape and murder. But now he’s also appealing to International law to avoid the death penalty:

WASHINGTON — The Supreme Court, confronting a case that tests the effect of international law in domestic death penalty cases, showed little interest Monday in deciding whether the U.S. government can deny foreign suspects access to legal help from their consulates. Jose Medellin came to our country illegally and raped and murdered our children. I don’t give a damn what country he’s from—he should be put to death by our country in accordance with our laws…International law be damned.

Houston Chronicle

"Killer's death date up again; Execution set for Tuesday in '93 rape, slaying of 2 teens at park," by Allan Turner and Rosanna Ruiz. (July 10, 2006, 2:42PM)

It wasn't news to anyone that Derrick Sean O'Brien was bad news. He fought often at school, once breaking a kid's jaw. Lots of times he was drunk. Sometimes he carried a knife. He was full of bluster about his prowess as a car thief. But it was in 1993 that O'Brien hit rock bottom. In January of that year, O'Brien later admitted, he murdered and tried to rape Patricia Lopez, a 27-year-old mother of two young children, in Melrose Park. And on June 24, 1993, he took part in the brutal gang rapes and murders of Jennifer Ertman, 14, and Elizabeth Peña, 16, after the girls stumbled into a drunken midnight gang initiation rite in T.C. Jester Park. Tuesday, O'Brien, 31, is scheduled to be executed for his role in that crime.

The death date is the killer's second this year. In May, O'Brien received a brief stay as judges considered his claim that death by injection is cruel and unusual punishment. O'Brien's attorney, Catherine Burnett, an associate dean at the South Texas College of Law, filed a new appeal on his behalf with the U.S. Supreme Court. "I hope the son of a bitch rots in hell," Ertman's father, Randy, said last week. "He deserves it." "It doesn't make me happy," Peña's father, Adolfo, said in a recent interview. "But this is the punishment he was given, and it's justifiable. ... I kind of feel numb in a way, knowing that I've been waiting so long for this day to come. ... I've been looking forward to this for a long time."

Minutes after the girls left the party, they were intercepted by O'Brien and five other members of the loose-knit gang, who had just concluded a track-side initiation rite. The girls were pulled from the tracks, raped and strangled. Court testimony revealed that O'Brien grunted with exertion as he tightened a belt around Ertman's neck. Then, after stomping on the girls' throats, the killers divided the victims' belongings.

Others facing execution are Peter Anthony Cantu, described as the gang's leader, and Jose Ernesto Medellin, both 31. Death sentences for two others — Efrain Perez and Raul Omar Villarreal — were commuted to life in prison when the U.S. Supreme Court ruled that those who were minors when they committed murders could not be executed. The sixth gang member, Venacio Medellin, who was 14 at the time of the murders and testified against the others, received a 40-year sentence.

"Don't say time makes things better," Peña's father said. "It never goes away. It's never going to go away. The hurt is still the same. I still find myself crying just out of the blue."

MurderVictims.Com (Elizabeth Pena and Jennifer Ertman)

The Murders of Jennifer Ertman and Elizabeth Pena

What happened...

They were last seen by friends about 11:15 at night, when they left a friend's apartment to head home, to beat summer curfew at 11:30. They knew they would be late if they took the normal path home, down W. 34th Street to T.C. Jester, both busy streets. They also knew they would have to pass a sexually-oriented business on that route and so decided to take a well-known shortcut down a railroad track and through a city park to Elizabeth's neighborhood.

Jennifer Ertman's dad, Randy Ertman, was about to give an interview regarding the missing girls to a local television reporter when the call came over a cameraman's police scanner that two bodies had been found. Randy commandeered the news van and went to the scene that was now bustling with police activity. My first knowledge of the death of Jennifer was seeing Randy, on the news that evening, screaming at the police officers who were struggling to hold him back, "Does she have blond hair?? DOES SHE HAVE BLOND HAIR?!!?"

Fortunately, they did manage to keep Randy from entering the woods and seeing his daughter's brutalized body and that of her friend Elizabeth, but they were unable to escape that fate themselves. I saw hardened, lifelong cops get tears in their eyes when talking about the scene more than a year later. The bodies were very badly decomposed, even for four days in Houston's brutal summer heat and humidity, particularly in the head, neck and genital areas. The medical examiner later testified that this is how she could be sure as to the horrible brutality of the rapes, beatings and murders.

His knowledge of the crimes came from the killers themselves, most of whom came to his home after the murders, bragging and swapping the jewelry they had stolen from the girls.

The gang continued drinking and 'shooting the breeze' for some time and then decided to leave. Two brothers who had been with them but testified that they were not in the gang left first and passed Jenny and Elizabeth, who were unknowingly walking towards their deaths. When Peter Cantu saw Jenny and Elizabeth, he thought it was a man and a woman and told the other gang members that he wanted to jump him and beat him up. He was frustrated that he had been the one who was unable to fight Raul.

The gang members ran and grabbed Elizabeth and pulled her down the incline, off of the tracks. Testimony showed that Jenny had gotten free and could have run away but returned to Elizabeth when she cried out for Jenny to help her. For the next hour or so, these beautiful, innocent young girls were subjected to the most brutal gang rapes that most of the investigating officers had ever encountered. The confessions of the gang members that were used at trial indicated that there was never less than 2 men on each of the girls at any one time and that the girls were repeatedly raped orally, anally and vaginally for the entire hour. One of the gang members later said during the brag session that by the time he got to one of the girls, "she was loose and sloppy." One of the boys boasted of having 'virgin blood' on him.

The 14-year-old juvenile later testified that he had gone back and forth between his brother and Peter Cantu since they were the only ones there that he really knew and kept urging them to leave. He said he was told repeatedly by Peter Cantu to "get some". He raped Jennifer and was later sentenced to 40 years for aggravated sexual assault, which was the maximum sentence for a juvenile.

The medical examiner testified that Elizabeth's two front teeth were knocked out of her brutalized mouth before she died and that two of Jennifer's ribs were broken after she had died. Testimony showed that the girls' bodies were kicked and their necks were stomped on after the strangulations in order to "make sure that they were really dead." The juvenile pled guilty to his charge and his sentence will be reviewed when he turns 18, at which time he could be released. The other five were tried for capital murder in Harris County, Texas, convicted and sentenced to death. I attended all five trials with the Ertmans and know too well the awful things that they and the Penas had to hear and see in the course of seeing Justice served for their girls.

Two VERY important things in the criminal justice system have changed as a result of these murders. After the trial of Peter Cantu, Judge Bill Harmon allowed the family members to address the convicted. This had not previously been done in Texas courts and now is done as a matter of routine.

The other change came from the Texas Department of Corrections which instituted a new policy allowing victims' families the choice and right to view the execution of their perpetrators. I had an ever-swaying opinion on the death penalty before this happened to people I know, before I watched the justice system at work firsthand. I have now come to believe that there are some crimes so heinous, so unconscionable that there can be no other appropriate punishment than the death penalty.

This is why I joined Justice For All. Charlene Hall

Update - 1996

Vinnie Medellin was sentenced at age 14 to forty years in the Texas Department of Corrections for the crime of aggravated sexual assault upon Jennifer Ertman, to which he pled guilty. As a juvenile, he was remanded to the custody of the Texas Youth Commission where he would remain until age eighteen. He testified at all of the other trials except for that of his brother, Jose Medellin. He refused to answer any questions at his brother's trial and was held in contempt of court and sentenced to six months in county jail, to be served at the end of his current sentence.

On September 26, 1996, after three years in the custody of the TYC, a hearing was held to determine the future of the juvenile. Three outcomes were possible; he could have been released on parole, a possibility which was never even discussed; he could have been returned to TYC custody until he reached the age of 21 at which time another hearing would have been held; or he could have been sent to TDC to serve the remainder of his sentence as an adult.

The recommendation of TYC was that he continue treatment at TYC until age 21. He was said to be an excellent inmate and did not have behavior problems and participated in all required therapies. On the other hand, his counselors reported that he still seemed to show no remorse for his part in the crimes and also did not take responsibility for his part.

The courtroom was filled with supporters of the girls' families, most of whom did not know them before the murders and who have become friends through Justice For All or Parents of Murdered Children. There was testimony about the details of the crime from a detective who was present at the murder scene and participated in the investigation and arrests. A therapist from TYC testified as to Vinnie's stay at TYC and the reports of various counselors and therapists. Vinnie's father testified as to his good behavior before this incident.

Randy Ertman took the witness stand to tell the court about his daughter, Jennifer. When asked what Jenny's hobbies were, he elicited bittersweet smiles in the courtroom when he responded, "Shopping!" Randy told the judge that he was living through the worst possible thing that could happen to a family and implored the judge to send Vinnie to TDC and to not make the families repeat this process in three years.

Vinnie took the stand and was asked about his past behavior, his grades at school and how he happened to be with his brother on this night. He read a letter that he had written, telling the parents of the victims that he was sorry for their losses and warning other teenagers away from gangs, saying that he had gone with this gang for one hour and had ruined his life forever.

Judge Pat Shelton did not take a recess to ponder his decision. He said that he agreed with Mr. Ertman, that this is the nightmare of nightmares for a parent. He said that he also agreed with Vinnie Medellin that gangs were destructive but that "you have to mean what you say when you are walking out the front door of your house, not just when you are walking in the door of the courtroom."

He also said "I'm not sure that your future parole officer has even been BORN yet and I'm not sure that you deserve for him to have even been born yet." He rejected the report from the TYC as "psycho-babble" and transferred custody of Venancio Medellin to the Texas Department of Corrections.

Charlene Hall

Update

I just wanted to let visitors know what is going on with the killers' appeals. Two of the murderers had an execution date set for June 2004, on and the day after the 11th anniversary of the murders. The two were Efrain Perez and Raul Villarreal. They both received a stay because of an appeal that was to be heard before the US Supreme Court regarding a case from Missouri that challenged the execution of any murderer who was under the age of 18 at the time of the crime. Both of these killers were not yet 18 when they brutally attacked and killed the girls. Villarreal turned 18 in three months, and Perez turned 18 five months after the murders.

The arguments in this case were heard in the fall of 2004 and the decision was handed down a few months later; no more death penalties for "juvenile" murderers. This will result in these two killers, plus dozens more across the country, being removed from death row and given life sentences instead. In this case, it is life without the possibility of parole for 35 years because that was the alternative to a death sentence in a capital case at the time of the murders. They will certainly never be released from prison, but they should have been executed.

The only consolation is that they will no longer have the protection they now have on death row - they will be in the general population of the prison system and most regular prisoners do not like people who rape and murder children. They might have gotten a reprieve but it may be much worse in the end, a true case of be careful what you wish for...

Additionally, a third killer out of the five who were put on death row for this crime had an appeal pending before the US Supreme Court. In this instance, Joe Medellin claims that he should get a new trial because he is a Mexican national and should have been allowed to contact the Mexican consulate for legal assistance. However, he had lived in the US since he was six years old and had gone to elementary, middle and high school here. The Supreme Court heard arguments in the case in spring of 2005 and sent the case back to the state court for a hearing.

News articles about these murders
(if you want to read them in chronological order,start at the bottom of the page)

Mon 07/10/2006
Killer's death date up again / Execution set for Tuesday in '93 rape, slaying of 2 teens at park

The murders of Ertman and Peña rocked the city in a way that few deaths could. The Waltrip High School students, balanced at that awkward point between childhood and young womanhood, spent the hours before their deaths at a poolside party at a northwest Houston apartment complex. As their midnight curfew approached, they debated the best way to Peña's home. Their normal route would have taken half an hour, but they chose a well-known shortcut down the railroad tracks through the park. Minutes after the girls left the party, they were intercepted by O'Brien and five other members of the loose-knit gang, who had just concluded a track-side initiation rite. The girls were pulled from the tracks, raped and strangled. Court testimony revealed that O'Brien grunted with exertion as he tightened a belt around Ertman's neck. Then, after stomping on the girls' throats, the killers divided the victims' belongings.

O'Brien was at the crime scene four days later when police, alerted to the bodies' location by the brother of a gang member, began their investigation. Unobtrusively, the killer stood among spectators who gathered in the park. Ertman's father also was in the crowd. Days later, O'Brien was arrested. He will be the first of the convicted gang members to be put to death. Others facing execution are Peter Anthony Cantu, described as the gang's leader, and Jose Ernesto Medellin, both 31. Death sentences for two others - Efrain Perez and Raul Omar Villarreal - were commuted to life in prison when the U.S. Supreme Court ruled that those who were minors when they committed murders could not be executed. The sixth gang member, Venacio Medellin, who was 14 at the time of the murders and testified against the others, received a 40-year sentence.

"Don't say time makes things better," Peña's father said. "It never goes away. It's never going to go away. The hurt is still the same. I still find myself crying just out of the blue."

Thu 06/29/2006
High court axes foreigners' plea / Denial of suspects' claims of consular rights violations could affect Texas case

In a ruling that could have implications for a Houston death row case, the U.S. Supreme Court on Wednesday ruled against foreign suspects who want to suppress statements they gave to police during interrogations when they were not informed of their right to contact consulate officials from their home countries. The court ruled 6-3 that Mexican Moises Sanchez-Llamas' and Honduran Mario Bustillo's rights under the Vienna Convention were not violated because the treaty's consulate-notification provision does not apply to searches or interrogations.

Those cases originated in Oregon and Virginia, respectively. But the court's ruling could affect a Texas death-penalty case as well. Mexican national Jose Ernesto Medellin raised the same issue of Vienna Convention violations in his appeals. Medellin was one of six defendants convicted in the 1993 rape and murder of Jennifer Ertman, 14, and Elizabeth Peña, 16, in a northwest Houston park. "The court could have used Jose's case a long time ago to hand down the same ruling they handed down today," Medellin's attorney, Michael B. Charlton, said from his office in El Prado, N.M. "That pretty much ends Vienna Convention claims on confession claims but not on the other issues," he added. Medellin's case is under review by the Texas Court of Criminal Appeals after President Bush's edict last year for courts in Texas and other states to review his and 50 others involving foreign nationals who raised consular violation claims. But the court's decision does not relate to Bush's order.

In the majority opinion, Chief Justice John Roberts specified that Article 36 of the Vienna Convention "secures only a right of foreign nationals to have their consulate "informed" of their arrest or detention - not to have their consulate intervene, or to have law enforcement authorities cease their investigation pending any such notice or intervention." Under the convention, ratified by the United States in 1969, when a national of one country is detained by authorities in another country, authorities must notify the consular offices of the foreigner's home country when requested. Roberts also wrote that a detained foreign national, "like everyone else in our country, enjoys under our system the protections of the Due Process Clause." He set aside, however, the matter of whether police must advise defendants of their legal options. Roberts was careful to stipulate that the ruling "in no way disparages the importance of the Vienna Convention."

In a dissenting opinion, Justice Stephen Breyer wrote that the decision runs afoul of the treaty's interpretation "not only with the treaty's language and history, but also with the (International Court of Justice's) interpretation of the same treaty provision." Justices John Paul Stevens and David Souter joined in the dissent. Breyer wrote that the ruling may weaken respect abroad for the rights of foreign nationals and diminishes the treaty's proviso that foreign nationals are deserving of fair treatment throughout the world. A spokesman for the Texas Attorney General's Office, which is handling the Court of Criminal Appeals case involving Medellin, declined to comment about the potential impact of the court's ruling.

Thu 05/25/2006
Ertman, Peña murderer set to die on July 11 / Appeals court had granted, then reversed, a stay for teens' killer

A man whose execution for the murders of two teenage girls was blocked recently has been rescheduled for the death chamber on July 11. State District Judge Jan Krocker set the new execution date for Derrick Sean O'Brien, one of six gang members convicted in the 1993 slayings of Waltrip High School sophomores Jennifer Ertman and Elizabeth Peña. O'Brien, 31, originally was set to die on May 16, but the Texas Court of Criminal Appeals granted a stay of execution. The appeals court reversed course the next day, voting 5-4 to lift the stay and dismiss O'Brien's claim that Texas' lethal-injection procedure would violate his Eighth Amendment protection against cruel and unusual punishment. O'Brien would be the first of Ertman's and Peña's killers to die. Four others also were condemned, but two later saw their sentences commuted to life in prison after the U.S. Supreme Court banned the execution of those who were juveniles when they committed murder. Another gang member, who was 14 at the time of the attack, received a 40-year sentence. Ertman, 14, and Peña, 16, were walking home through a wooded area in northwest Houston on the night of June 24, 1993, when they were gang-raped and tortured, then strangled and stomped. Their bodies were found four days later.

Thu 05/18/2006
Ertman, Peña killer again faces execution / Case reversed; another inmate who challenged lethal injection is put to death

In a reversal with life-or-death consequences, the Texas Court of Criminal Appeals on Wednesday lifted the stay of execution it granted earlier this week for Derrick Sean O'Brien of Houston, who likely will be rescheduled for lethal injection for his role in the notorious slaying of two teenage girls in 1993. "See, we're back on the ride again, riding up and down," said Melissa Peña, mother of one of the girls who was gang-raped, tortured and strangled. "At least this is some good news. Maybe things will swing back our way."

The appeals court also denied a claim by another death row inmate, Jermaine Herron, who was then put to death in Huntsville for killing a South Texas mother and son nine years ago. Both men had argued that the state's use of a three-drug cocktail would cause pain and therefore violate their constitutional protection against cruel and unusual punishment. After the court issued its stay for O'Brien on Monday, his attorney and legal experts wondered whether the move signaled the court's willingness to wait for the U.S. Supreme Court to decide the issue over lethal injections raised in a Florida case now before it. Herron's attorneys filed a similar claim late Tuesday. In a 5-4 ruling Wednesday, the Texas court rescinded the stay it had issued for O'Brien and dismissed his claim that the state's lethal injection procedure would violate his Eighth Amendment rights. At issue, in this and a growing number of claims around the country, is whether an anesthetic administered as part of the lethal-injection cocktail can fail, and whether the dying inmate's agony is masked by a second drug that paralyzes the muscles. The U.S. Supreme Court has so far declined to address the constitutional question directly. But in a Florida case argued last month, Hill v. McDonough, the justices pondered a related procedural issue.

In an opinion issued Wednesday concurring with the majority vote, Texas Court of Criminal Appeals Judge Cathy Cochran explained that the court postponed O'Brien's execution to look more closely at the procedural issues as well as the merits of O'Brien's claim. She wrote that O'Brien failed to do more than speculate about the "problems or mistakes that "might" occur." She wrote further that he has not provided evidence that the three-drug protocol used during executions "is subject to any realistic risk of unnecessary pain or suffering." On Monday, Cochran had voted with five other judges to grant O'Brien a postponement. In a dissenting opinion Wednesday, Judge Tom Price wrote that the question before the court was not whether O'Brien's appeal proved an Eighth Amendment violation. It was the court's job, he wrote, to determine whether the appeal was appropriately filed as a state habeas corpus petition. "It is manifestly unfair, in my estimation, to fault the applicant for a failure of proof without first affording him an opportunity to present evidence at a hearing or through one of the other mechanisms that the statute allows for presentation of evidence," Price wrote. Rob Owen, a University of Texas law school adjunct professor and death penalty expert, agreed with Price, saying that the court skirted the procedural question. "It sounds like Price is criticizing the court saying it has gone around that question and gone straight to the underlying constitutional question," Owen said. "He's saying they're putting the cart before the horse."

Roe Wilson, a Harris County prosecutor, said she will file a request for a state district court to reschedule O'Brien's execution. She said she had not received the order Wednesday afternoon and would not comment further. A new execution date could be set within 30 days.

The reversal was the latest twist in a case that has already seen two death sentences commuted to life. O'Brien and four other gang members were sentenced to death for the June 24, 1993, deaths of Waltrip High School sophomores Jennifer Ertman, 14, and Elizabeth Peña, 16. Another gang member, a juvenile, received a 40-year sentence. Last year, two gang members were spared from the death chamber after the Supreme Court ruled those who kill when they are younger than 18 should not be put to death.

Randy Ertman, father of Jennifer Ertman, said he is frustrated that the waiting process now starts anew. "It's just nerve-racking," he said. "I don't know what the hell to think anymore." Andy Kahan, Mayor Bill White's crime victims advocate, said the court relented because the judges concluded "it would be foolhardy to put a halt to justice." "It's a bleeping roller coaster ride," Kahan said. "Everything that can possibly happen on these cases has. ... The (families) have been belted around so much this week by the system."

Tue 05/16/2006
Murderer of Ertman, Peña given a stay of execution / Families irate that his claim has put his death on hold

An appeals court on Monday postponed the execution of Derrick Sean O'Brien for the vicious gang rape and murder of two teenage girls in Houston in 1993, enraging the victims' parents and extending the debate over how condemned inmates are put to death. The Texas Court of Criminal Appeals issued the order Monday afternoon, in response to an appeal filed last week challenging the injection process as unconstitutionally cruel. The ruling marked the third time that an execution has been scheduled - then postponed - in connection with the June 24, 1993, slayings of Jennifer Ertman, 14, and Elizabeth Peña, 16, as the girls took a shortcut home through T.C. Jester Park. "We were all ready for this to happen," fumed Adolph Peña, who had planned to witness the execution tonight in Huntsville with his wife, Melissa. "You talk about cruel? ... We've been waiting 13 years for this son of a bitch to be executed. It's time for him to be executed."

O'Brien was "emotional" when he heard about the court's ruling, said his attorney, Catherine Burnett, who spoke to him by telephone at death row in Livingston. Monday's stay comes at a time when condemned inmates around the country increasingly are challenging the injection method as unconstitutionally "cruel and unusual punishment." Lethal injection has long been used in 37 of the 38 states that have the death penalty because it is considered more humane than shooting, hanging or electrocution. But defense attorneys have recently cited new medical information that they say shows the inmates may suffer excruciating pain because they are sometimes conscious when the lethal drug takes effect. The inmates are unable to indicate they are in pain because of a paralyzing agent that is part of the three-drug combination used in such executions, the attorneys say.

O'Brien's scheduled execution is the ninth this year to be postponed to consider such claims. The U.S. Supreme Court has so far declined to address the constitutional question directly. But in a Florida case argued last month, Hill v. McDonough, the justices pondered a related procedural issue. By July, the high court will decide whether Clarence Hill, who was convicted in the 1982 murder of a police officer, can get a last-minute hearing to challenge the execution method. That likely influenced the state court, O'Brien's attorney said. "I think the Court of Criminal Appeals is taking the prudential view not to rush this issue when it's pending before the Supreme Court," said Burnett, who also is an associate dean of the South Texas College of Law. O'Brien - who admitted to but was never tried for killing a 27-year-old woman months before the Ertman and Peña slayings - also has a separate appeal pending before the Supreme Court.

Despite the court's ruling Monday, a spokesman for the Attorney General's office denied there is a de facto moratorium on executions in Texas. Another execution is scheduled for Wednesday; 14 more are set through October. Harris County Assistant District Attorney Roe Wilson said she was surprised by the stay for O'Brien and suggested the Texas court may be awaiting movement from the high court on the issue. "We have had some (death penalty cases) where that has been a claim, and those executions have gone through," Wilson said. "So it's very surprising."

It also dealt another frustrating blow to the families of the victims. Last year, two other men convicted in the Ertman-Peña case had their death sentences commuted to life in prison after the Supreme Court determined that people could not be executed for crimes committed when they were minors. O'Brien, who was 18 at the time of the crime, would have been the first of the killers to die; two others remain on death row, while a sixth man, who was 14 at the time, is serving a 40-year sentence.

Ertman's father, Randy Ertman, on Monday called the Texas appellate judges "spineless" and thanked "the people of Houston for their thoughts, concerns, overwhelming support and prayers over the past week, actually over the last 13 years." "And that's about it," he added. "There's nothing else I can say that's printable. ... We'll get over it, like everything else. It's just another bump in the road of the justice system." Ertman, who also had planned to view the execution, said he no longer intends to. "I'm not going to view any executions now. I'm not going to allow them to beat me again," he said. "I feel like I've gone a round with Muhammad Ali. I'm not going to view it. There's no sense to it."

Sun 05/14/2006
ERTMAN-PE-A CASE / As the first execution nears, the effects of two girls' slayings linger in both court procedures and their survivors' lives / Murders still felt across city

Catching up with friends after a family vacation in Florida, Elizabeth Peña beamed as she showed off the stuff she'd bought with her 16th birthday money: a new pager, some new underclothes. As the summer evening waned, Jennifer Ertman, another Waltrip High School sophomore, checked her Goofy wristwatch and saw that it was pushing midnight. She and Peña would break their curfews if they didn't get home in a hurry. The girls debated how to get to Peña's Oak Forest home in northwest Houston. One route would take half an hour; a well-known shortcut along the railroad tracks through T.C. Jester Park would save about 10 minutes. The shorter route instead led the girls into the hands of six teenage gang members who had just finished an initiation ritual. For an hour, the six raped and tortured the girls before strangling them - stomping on their necks for good measure. Their bodies were discovered four days later, horrifying a city that shrugs off hundreds of homicides each year. The Ertman-Peña case captivated a generation of Houstonians the way the Dean Corll-Elmer Wayne Henley multiple murders had an earlier one.

On Tuesday, the first of Ertman and Peña's killers is set to die by injection. "I've waited 13 years to view an execution," said Ertman's father, Randy Ertman, who will witness the act thanks to a policy change prompted by the case. "In the grand scheme, it may not mean a whole hell of a lot. But Derrick Sean O'Brien will never kill again." Barring court intervention or a last-minute reprieve, O'Brien, a ninth-grade dropout who last month turned 31, will be the ninth killer to die in Texas' death chamber this year. He turned down requests to be interviewed for this article. But in affidavits that appellate attorneys have filed in an effort to save O'Brien's life, relatives said his behavioral problems began in school, after he claimed a teacher made sexual advances toward him. Administrators sided with the teacher, and O'Brien was transferred to an alternative school. During his trial, other evidence was presented about O'Brien's violent past, which included another murder months before the girls' slayings. The five other gang members involved, most of whom are in their early 30s, remain in state prisons. The former gang leader, Peter Anthony Cantu, 30, and Jose Medellin, 31, are on death row, but their execution dates have not been set. Two others who were sentenced to death had their sentences commuted to life in prison last year after the U.S. Supreme Court determined that it was cruel to execute those who were juveniles when they killed. Raul Villarreal and Efrain Perez, now both 30, were months away from turning 18 when they participated in the gang rapes and murders. Venacio Medellin, 14 at the time of the crime, testified against the others and is serving a 40-year sentence.

In the years since, as the killers became adults behind bars, Adolph and Melissa Peña became grandparents. They said they were "saved" by their two other children, who gave them a reason to wake each morning, though their son, Michael, remains bitter. The Peñas, like Randy Ertman, plan to witness O'Brien's execution. For years, Randy Ertman sought escape through alcohol, but he now remains sober for the sake of his wife, Sandy. The couple, who have no other children, now live a quiet life tending to their garden at their small, two-story lakefront home in Somerville. By the time Villarreal and Perez were scheduled to die - on the 11-year anniversary of the crime - the Supreme Court already had begun considering the juvenile-killer issue and the executions were postponed. The ruling that followed was hard on the girls' parents. But they cling to the expectation that, at least, the state will dispatch three of the killers.

On the moonless night of June 24, 1993, members of a little-known gang had gathered near a patch of woods along White Oak Bayou near West 34th. Villarreal, who was 17, had trash-talked his way into being "jumped into" the gang. It was time to prove himself. The gang members - Cantu, O'Brien, Perez, brothers Roman and Frank Sandoval, Medellin and his brother Venacio - took turns pummeling the inductee. Then, they all downed beer and talked about what it meant to be in a gang. The Sandovals, heading home, passed two girls along the railroad tracks. A moment later they heard: "What's y'all's name?" The brothers watched as Jose Medellin grabbed Elizabeth and threw her to the ground. She screamed for help. Jennifer broke away but returned and was grabbed by Cantu and O'Brien. The girls cried and struggled while the gang members repeatedly sexually assaulted them. At times, two would assault one girl. Afterward, according to court records, Cantu flatly told Jose Medellin, "We're going to have to kill them."

The girls pleaded for their lives, but the gang members took them into a clearing beneath a canopy of trees. O'Brien and Villarreal forced Jennifer to her knees and looped O'Brien's belt around her neck. Jennifer clawed at the belt and struggled to breathe. O'Brien grunted as both pulled on the belt so hard it snapped. Jose Medellin, Perez and Cantu killed Elizabeth in a similar manner. They then stomped on the girls' throats to make sure both were dead. Later that night, the gang members divided up money and Jennifer's jewelry. Cantu handed Venacio Medellin her Goofy watch. The girls' clothes, including Elizabeth's new undergarments, were strewn among empty beer cans. When Jennifer did not return home that night, her parents began to frantically page her. After the Peñas returned from work the next day, they realized that their daughter, too, was missing. They figured that if she and Jennifer had simply fallen asleep at their friend's apartment on West 34th, she would have called. The parents called police and began papering the neighborhood with fliers. An anonymous tipster, later revealed as Cantu's brother, led police to the site where the bodies had been left. Ramon Zaragoza, a Houston police homicide investigator, was struck by the grotesque condition of the girls' bodies. Decomposition had claimed their facial features. Jennifer had three fractured ribs, and Elizabeth had several missing teeth. Zaragoza encountered Jennifer's father at the park. "Does she have blond hair?" Randy Ertman screamed as he was being restrained by police. Zaragoza, now retired, told Ertman that investigators would need dental records to identify the bodies. "I think that gave him an idea of what the situation was," he said. When O'Brien was arrested a day later, he told officers he had been expecting them. The other killers also were arrested.

Randy Ertman will be inside the death house in Huntsville on Tuesday because of a simple request he made during the trials. His inquiry ultimately led to policy changes granting victims' relatives the chance to witness executions. The case also established what has become accepted court procedure that allows victims to address defendants. "This case set a lot of precedents," said Andy Kahan, the mayor's victims rights advocate. " ... and it has enhanced victims' rights in the state." Catherine G. Burnett, O'Brien's appellate attorney, said it did something more. "This case has become part of the collective consciousness of the city of Houston," she said. "It's definitely part of that ethos."

The Ertmans and Peñas all will be in Huntsville on Tuesday, though Sandy Ertman has decided not to watch the execution. None plans to celebrate. "I kind of feel numb in a way knowing that I've been waiting so long for this day to come," said Peña, who lives in Hockley with his wife. His wife added, "I don't want anyone to think we are happy. This will not be a happy day for us. It's going to be a difficult day for us." The Peñas' other children, Michael and Rachel, were 12 and 5, respectively, when their sister was murdered. "I don't think it affected Rachel like it did her brother," Adolph Peña said. "Michael is still really, really angry about the deaths." Peña often wonders what he could have done differently that day, whether he failed to keep his daughter safe. He warned her that her beauty might attract unsavory characters. "You have to be careful. You can't trust just anybody," he told her. "At your age, as pretty as you are, you can't trust anyone you don't know." The girls knew, their parents said, they could always call home, and they always had money for cab fare. Why they chose to walk home is a mystery. Jennifer, who had played on a basketball team but decided it wasn't for her, had just started dabbling with makeup, her mother said. Elizabeth was known to wear distinctive red lipstick that contrasted with her fair skin. Both girls were well-liked at Waltrip. Anne-Marie Franz, a former physical education teacher, said she was close to both. After their deaths, she organized the planting of a crape myrtle and the erection of a memorial plaque on campus. Jennifer was a girl "who walked the line without getting in trouble, but knew where the magic line was," said Franz, now a teacher in Austin. "She didn't want to cross it or get in trouble at home." Elizabeth, she said, was a social butterfly who loved to talk to her friends. After their murders, many of the girls' friends found it difficult to even walk the same halls as they had, Franz said. Some transferred or dropped out. "The events that took place that day changed our lives," former student Carrie McCleary wrote in an e-mail to the Chronicle. "Tears come to my eyes as I sit here and remember all of the details. I remember that day as the day that ended our innocence." Mike Maddux, another student, wrote that Waltrip became "a very large family after that."

Before his trial, O'Brien's mother, Ella Jones, and his stepgrandfather described O'Brien as "cruel and intentionally harsh," according to court records. Neither testified because his defense attorneys concluded both would be more helpful to the prosecution. "What the hell went wrong with this guy?" asked Harris County Assistant District Attorney Steve Baldassano, who prosecuted O'Brien. "How bad could it be in his head that he could walk around and do this stuff? I'm not a huge fan of the death penalty, but this is the kind of guy I think it's for. It fits the crime." During his trial, one of his teachers testified that a "very aggressive" O'Brien fought with other students and often had to be restrained. She witnessed him break another student's jaw. A school bus driver said O'Brien was often drunk, sometimes carried a knife and often spoke of stealing cars. Testimony of an assault at a fast-food restaurant was presented. Jurors also were told during the punishment phase of his trial that he was a model inmate while at the Harris County Jail. But appellate attorney Burnett said that wasn't enough. "The question at punishment is whether there is anything in this person's life that warrants a finding of life rather than death," said Burnett, also an associate dean of the South Texas College of Law. "I don't think the jury got to make that decision fairly because they didn't get anything else." Acknowledging that the crime was "devastating," Burnett said O'Brien was not what she expected. "The portrait the jury saw was that of a terrifying monster," she said. "The man I know does not seem to be the defendant in this case."

From his prison cell four years ago, O'Brien posted a lengthy Internet essay about the costliness of capital punishment and reflected on the value of life. "Life is a miracle and therefore precious. Each time one is taken before its time the world loses something special," O'Brien wrote. "All of this may sound strange coming from me, a death row inmate, but if I never strove to change even knowing my wrongs, I couldn't call myself human."

Baldassano noted that after O'Brien's arrest, he confessed that he was behind another slaying months before the Ertman and Peña murders. On Jan. 4, 1993, police found the partially nude body of Patricia Lopez, a 27-year-old mother of two, in Melrose Park. Empty beer cans, cigarettes and a broken belt were found nearby. O'Brien attempted to rape Lopez, then he killed her. She was stabbed in the abdomen, neck and back. Now, life for Jennifer and Elizabeth's parents revolves around simple pleasures: fishing and gardening for the Ertmans; caring for grandchildren for the Peñas. The grief remains. "It's never going to go away. The hurt is still the same," Peña said. "I still find myself crying just out of the blue." Today, Elizabeth would likely revel in her role as an aunt. She probably would be married herself with children, her parents muse. Jennifer's parents simply say that if she were alive today, their only daughter would be happy.

And, if O'Brien had chosen a different path, his attorney asks, where would he be today? "I wonder when I'm meeting and talking with him how his life could've been different," Burnett said, "how all of our lives could've been different."

GANG VICTIMS
Lives cut short: Jennifer Ertman and Elizabeth Peña, both Waltrip High School sophomores, were raped and murdered in the summer of 1993 by members of the Black and White Gang. One member, Derrick Sean O'Brien, will be executed Tuesday.

THE AFTERMATH
Jennifer Ertman and Elizabeth Peña were attacked, gang-raped and strangled as they walked through T.C. Jester Park on June 24, 1993. Six gang members were convicted and punished for the murders:

Derrick Sean O'Brien is set to be the first person executed in the case. O'Brien, now 31, also admitted to the Jan. 4, 1993, strangulation murder of Patricia Lopez, a mother of two.

Jose Ernesto Medellin, a Mexican native who was raised in Houston, is also on death row. He is appealing on the grounds that he was denied access to a Mexican consulate official during his arrest.

Efrain Perez, 17 at the time of the crime, also had his death sentence commuted by the Supreme Court ruling.

Venacio Medellin, who was 14 at the time of the rapes and murders, received a 40-year sentence and testified against the others. A parole hearing will be conducted in the coming weeks.

Raul Omar Villarreal was 17 when he was inducted into the Black and White Gang. His death sentence was commuted to life in prison when the Supreme Court ruled last year that juvenile killers could not be executed.

Peter Anthony Cantu was considered the ringleader of the gang. He was also condemned, but no execution date is set.

Thu 03/30/2006
Justices skeptical consul calls would change verdicts / Foreigners want new trials because they were never told they could contact consulates

WASHINGTON - Lawyers for two foreign nationals found guilty of violent crimes tried to convince the Supreme Court on Wednesday that those convictions should be thrown out, because the men were not told they could contact their consulates before talking to police. But the justices appeared skeptical that the oversight would justify suppressing the evidence that led to the guilty verdicts. The two cases, which are being considered together by the high court, were brought by Mario Bustillo, a Honduran convicted of killing a Virginia teenager with a baseball bat in 1999, and Moises Sanchez-Llamas, a Mexican found guilty of attempted murder in the shooting of an Oregon police officer in 1997.

Lawyers for both men said the Vienna Convention, a treaty signed by the United States in 1969, required American officials to contact the embassies of foreign nationals "without delay." It is not enough for arrested foreigners to be told they can remain silent, hire a lawyer or have a lawyer appointed, the Miranda rights extended to Sanchez-Llamas, said his attorney, Peter Gartlan. "Foreign nationals have a fourth option" - to immediately contact their consulate, Gartlan said. Failure to observe that right, he said, should compel prosecutors to throw out all evidence obtained by police from interrogations.

The high court justices on Wednesday did not appear to buy the argument of the convicted men's attorneys. Justice Antonin Scalia said the Vienna Convention set up a mechanism for one country to protest the actions of another country toward its citizens, not establish a set of individual rights for foreign nationals. He also noted that no other country has interpreted the treaty as requiring evidence obtained before consular notification to be suppressed. "It is implausible that we signed a treaty that requires us to suppress (evidence from interrogations), but it lets other countries do what they like," Scalia said. Justice Stephen Breyer said he was inclined to accept that the men's rights under the treaty had been violated. But he said he doubted that suppressing evidence obtained by police was the proper remedy.

The court is expected to rule on the cases before July. The decision could have an impact on thousands of foreigners in U.S. jails and prisons. In Texas, 10,205 inmates claimed to be citizens of a foreign country at the end of 2005, according to the state's Department of Corrections. Medellin is one of 17 Mexicans on Texas' death row.

The Vienna Convention, signed by 168 countries, established the ground rules under which countries must treat the citizens of other nations that signed it. But Gregory Garre, U.S. deputy solicitor general who argued Wednesday in support of the states of Virginia and Oregon, said the treaty set up ways for governments to address violations through diplomatic channels. It did not give Americans overseas or foreigners in the United States individual rights not granted the citizens of those countries, he said. Several justices suggested that police need to make a better effort to let foreigners know they have the right to contact their country's officials. "It's not like rocket science. Give the advice. End of case," said Justice Anthony Kennedy.

BACKGROUND

In Texas: The cases before the Supreme Court echoed the claim last year by Texas death row inmate Jose Medellin, who sought to have his conviction in the 1993 murders of two Houston teenagers - Jennifer Ertman, 14, and Elizabeth Peña, 16 - overturned because Mexican authorities were not contacted. The high court appeal was dismissed after President Bush told Texas to give Medellin another hearing to comply with international law. The hearing has not yet been held.

Thu 12/29/2005
Killer in Ertman-Peña case loses appeal

Convicted killer Derrick Sean O'Brien, one of five gang members condemned for the savage rape-slayings of two teenage Houston girls more than a dozen years ago, has lost an appeal before the 5th U.S. Circuit Court of Appeals. O'Brien, now 30, was 18 in June 1993 when he and five companions attacked Jennifer Ertman, 14, and Elizabeth Peña, 16, both high school sophomores who were walking home at night after visiting a friend. In the ruling released Tuesday, a three-member panel of the New Orleans-based court denied O'Brien's request for a certificate of appealability, which is needed before he can appeal a federal district court's January denial of his case.

TUE 05/24/2005
Death row case returns to Texas / Supreme Court says state must review conviction of Mexican killer

WASHINGTON - The fate of a Mexican on Texas' death row for killing two Houston teenagers more than a decade ago is back in the hands of state courts following the U.S. Supreme Court's denial of his appeal Monday. The conviction of Jose Medellin, one of five gang members sentenced to die for raping and killing Jennifer Ertman and Elizabeth Peña in 1993, remains in question because Medellin was not advised of his right to get help from Mexican consular officials before his trial.

In a 5-4 decision, the court ruled that Texas must reconsider the case as directed by President Bush in February. Bush instructed Texas and other states where similar appeals are pending to give Mexican defendants new hearings to comply with international law. Medellin already has filed an appeal with state district court in Houston based on Bush's order.

In its unsigned opinion, the high court reserved the right to reconsider Medellin's case based on the state's decision. Justice Sandra Day O'Connor said in a dissenting opinion that the court was avoiding a central issue. "It seems to me unsound to avoid questions of national importance when they are bound to recur," she wrote. "Noncompliance with our treaty obligations is especially worrisome in capital cases."

The decision puts the merits of the appeal on hold, "but it does it in a way that certainly leaves open the opportunity for a change in sentence perhaps, or better compliance with the Vienna conventions," said Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which opposes capital punishment. Under international law, Medellin and 50 other Mexicans on death row in the United States, 16 of them in Texas, should have been able to seek help from their consulates when preparing their defense, Mexican officials argued. They said they learned of Medellin's sentence when he wrote to them from death row.

The International Court of Justice in The Hague agreed with Mexico last year, ruling that the United States violated the 1963 Vienna Convention by failing to inform Mexican nationals of their right to confer with their consulates. That's when Bush stepped in and ordered states to reconsider the cases. The administration maintained that the Vienna accord and international law had no legal binding in U.S. courts but said the president had the right to decide whether to comply with international conventions in the interests of American foreign policy. His intervention in the death row cases was widely viewed as designed to improve strained relations with Mexico. Days after issuing his memorandum, Bush withdrew the United States from the part of the treaty that gives the World Court the final say in international disputes. Bush can give executive orders to states, but it's unclear whether he can do the same with courts. That's a question the Texas court will address in the Medellin case, Dieter said.

When Ted Cruz, solicitor general for the Texas Attorney General's office, argued the case before the Supreme Court in March, he said Medellin failed to show that the outcome of his case would have been different had the Mexican consulate been notified of his arrest. In earlier appeals, attorneys for the state said his conviction should be upheld because he did not ask for consular help during his initial trials. Donald Donovan, Medellin's attorney, said Monday's Supreme Court ruling clears the way for his client to exercise his rights in Texas. "We are confident that the Texas courts will agree with the president that the United States must comply with the treaty commitments made by its elected representatives, especially when the United States itself depends on that treaty for the safety of Americans working and traveling abroad," he said.

Medellin admitted that he and several other gang members abducted the two girls when they were walking home in the dark, then raped and strangled them.

TUE 03/29/2005
Reviews give hope to Mexicans on death row / Possible violation of right to local consular notification may lighten sentences

On a sultry summer night in 1993, Jose Medellin and a loose band of friends entered the ranks of local infamy by committing one of the worst crimes in the city's collective memory. Half-drunk, stoked by an evening of fighting and trash talking, the group abducted two girls walking home in the dark and raped them repeatedly before finally strangling and stomping them to death. "This crime was every parent's nightmare," Medellin's prosecutor, Terry Wilson, said at the trial during closing arguments. "That nightmare has a face, and there he is." The jury wasted little time in sentencing Medellin to die, one of five death sentences handed down for the brutality visited upon Jennifer Ertman and Elizabeth Peña.

Eleven years later, Medellin's attorneys are hoping to convince a judge that if he had the benefit of a better trial counsel and more money for an investigation, the jury might have settled on a different punishment. It may be a hard sell, but at least they are going to get a hearing, something that did not look likely until earlier this month when President Bush ordered that the convictions of Medellin and 50 other Mexican nationals on American death rows be reviewed by a court because their rights to have local Mexican consuls notified after arrest - a right guaranteed by an international treaty - were violated.

Bush said he felt that the United States' full participation in the Vienna Convention on Consular Rights required him to uphold a ruling by the International Court of Justice that the 51 Mexicans are entitled to individual judicial review. Ten days later, in a move to prevent the issue from coming up again, the administration decided to withdraw from the optional provision of the convention that allowed the world court to have a final say on cases brought to it.

Though it may be a moot point now, the state of Texas on Monday challenged Medellin's right to have additional access to federal courts because of the international court. In U.S. Supreme Court arguments scheduled before Bush agreed to comply with the ruling, the state contended there is no valid constitutional claim for federal courts to consider. It also disputed the authority of President Bush to order state courts to do anything. For Mexico, just getting Bush to order the hearings was a long-anticipated victory. A staunch opponent of the death penalty, the Mexican government now helps pay for the legal defense of its citizens charged with capital murder in the United States. That can make a difference in result, especially in Texas, where the quality of capital defense has been inconsistent.

"The government of Mexico would be finding first-class lawyers," said Mike Charlton, one of Medellin's appellate lawyers. "That's a huge advantage over your average court-appointed lawyer." Whether the unusual hearing will prove of real benefit to Medellin is questionable, at best.Barring surprising revelations, it might be an uphill battle to convince a judge that a better lawyer would have led a Houston jury to a different conclusion - assuming that is the standard that will be applied. If his attorneys are required to prove only that the performance of Medellin's trial counsel was poor enough to harm his case, that might be another matter. "Nobody knows what the standards are going to be, or much anything else yet, because there are still so many questions," Charlton said. "But the sad fact is that the guy who tried the case didn't do jack. He didn't do anything to help his client. He called one witness. He did not talk to any members of his family."

In at least a few cases, the chance to be heard anew offers real hope. Attorneys for Cesar Fierro, for instance, relish the opportunity to get back into court to challenge a conviction that has been troubled almost from the beginning. Fierro, 49, was convicted in the February 1979 shooting death of an El Paso taxi driver. He insists officers coerced him into a confession by telling him his parents were in jail and they would remain there until he admitted to the crime.

A district judge in 1994 recommended a new trial for Fierro. The prosecutor in the case later said he would have moved to dismiss the indictment had he known of the circumstances of the confession and if he could not have uncovered significant evidence to corroborate it. Appellate courts, however, have so far provided no relief. "He has a very compelling consular assistance claim - his parents were in essence abducted and held and threatened with torture," said Mark Warren, a legal analyst who specializes in consular rights. "Had he been advised of his consular rights, one thing that would have happened was Mexican officials would've secured his parents' release from custody." Francisco Molina Ruiz, former attorney general of the state of Chihuahua, has submitted a sworn statement that his office would have intervened with police had it been notified and ordered the release of Fierro's parents.

The international court stopped short, however, of suggesting there should be a new outcome in Fierro's case or any other, said Richard Dieter, executive director of the Death Penalty Information Center. "It may be the minority of cases where there is even an argument to be made," Dieter said. "It may be in some cases there would be a little more mitigating evidence to be presented. Each case will have to make it on its merits that (consular assistance) would have made a difference. In some cases there could be an entirely new sentencing trial, or perhaps a new guilt trial, though the prosecutors are already required to prove guilt beyond a reasonable doubt." At the moment, no one knows the precise procedure to be followed in the hearings. Some might occur in state courts, some in federal. The issues that these judges may take into account will not be as limited as in a normal appeal, in part because the rules that prohibit consideration of an issue not raised at the original trial - the rules of so-called procedural default - will not be enforced. The only real issue to be resolved is whether the lack of consular assistance, and whatever that implies, likely affected the outcome of the trial.

THE ECHOES OF A MURDER CASE

The 1993 murders of Jennifer Ertman and Elizabeth Peña shocked the city of Houston as no other crime has in recent memory. The criminal proceedings against their six assailants have made legal headlines as well. Five of the defendants were certified as adults and each received a death sentence - at the time the most for a single crime in the modern era. Other legal issues in which they have been involved include:

Victim impact: Texas law was changed during the 1980s to give crime victims or their families the right to make a statement at the end of a trial. The Ertman/Peña prosecutions, however, marked the first time a judge permitted it in a high-profile case.

Juvenile killers: The U.S. Supreme Court's decision earlier this year to ban the death penalty for juvenile offenders took two of the Ertman/Peña killers off death row. Efrain Perez and Raul Villarreal were 17 at the time of the slayings. Their capital murder convictions stand, and they will serve life sentences.

Consular access: President Bush's decision to order the judicial review of the cases of 51 Mexican citizens on death row in the United States was brought about in part through the efforts of attorneys for Jose Medellin, one of the Ertman/Peña killers. Bush's order enforces the ruling of the International Court of Justice, which said the lack of consular notification could have compromised the defense of the 51 defendants.

TUE 03/29/2005
Houston killer `had his day,' U.S. Supreme Court told / Lawyers argue Mexican's guilt in 2 girls' murders should be upheld

WASHINGTON - The conviction of a Mexican national for the infamous killing of two Houston girls should be upheld even though he was not advised of his right to help from his country's consulate, a lawyer for the state of Texas told the U.S. Supreme Court Monday. In the dispute over the domestic application of international law, Texas contends the case of Jose Medellin, who was sentenced to death in 1994, should not be reconsidered because he failed to raise the consular advice issue during his state court trials. "It is time for the Supreme Court to rule that Mr. Medellin has had his day in court," said R. Ted Cruz, solicitor general for the Texas Attorney General's office. Medellin "had no constitutional claims," he added.

Medellin's attorneys have seized on the International Court of Justice's ruling that U.S. courts must review Medellin's sentence and that of 50 other foreign nationals in nine states on death row. The ruling was based on the 1963 Vienna Convention, signed by the United States, which requires consular access for people detained in a foreign country. Donald Donovan, Medellin's attorney, told the justices that an international treaty signed by the president and ratified by Congress is legally binding on the courts.

Medellin's case was bolstered by a directive from President Bush, who has asked that state courts review the 51 death penalty cases, he said. After agreeing to comply with the international body's decision, the White House notified the United Nations that it was dropping out of the provision of the treaty that allows the court to referee disputes. The Bush administration also weighed in separately in the Medellin case, with the Justice Department asking the Supreme Court to let the Texas courts decide how to handle the matter. Michael Dreeben, U.S. deputy solicitor general, told the court that a ruling favoring Medellin could hamstring the president if he wanted to reject a finding by the international court. Medellin was one of five boys and men involved in the 1993 rape and murder of Jennifer Ertman, 14, and Elizabeth Peña, 16, who were attacked while on their way home.

The justices appeared divided Monday on whether they should rule now or wait until the state courts to decide. Chief Justice William Rehnquist said that it seemed "topsy-turvy" that the legitimacy of an international treaty should be decided in a state court rather than the Supreme Court. But Justice John Paul Stevens said that by deferring to the state courts, the high court could sidestep some thorny issues. "Isn't it true that the Texas proceedings could make this moot?" Stevens asked. Donovan argued that if the Supreme Court dismisses the case, state courts might take that as a sign that they do not need to act. Sandra Babcock, counsel for Mexico, said the case's outcome is important for Americans who may find themselves unfairly arrested by local authorities in foreign countries and need the help of U.S. officials.

Medellin's attorneys have also filed a challenge with the state district court in Houston. Cruz said the state will fight Bush's order to reconsider the case of Medellin and 14 other foreign nationals on death row in Texas. The president overstepped his authority by ordering the courts to automatically review all of the sentences without considering the merits of each case, he said.

Peña's father, Adolph, who traveled from Houston, was present for Monday's Supreme Court proceedings with his wife, Melissa, and 17-year-old daughter, Rachel. With all the legal wrangling, the crime against his daughter was being overlooked, Adolph Peña said. "Those scumbags have been in there (prison) long enough," he said. "It is time for them to be executed." Peña also expressed anger at Bush for intervening in the case, saying the president was acting for political reasons. The issue of Mexican nationals on death row in the United States has been a source of friction between the White House and the Mexican government. The high court agreed to take up the case after the 5th U.S. Circuit Court of Appeals in New Orleans ruled Medellin was not entitled to federal court relief because he had not objected during his trial to the fact that the Mexican consulate was not notified.

WED 03/09/2005
BUSH ORDERS HEARINGS FOR MEXICAN NATIONALS / The directive in death row cases sparks challenge from Texas officials

In a move that could spawn a fight over presidential powers, the Bush administration has ordered Texas and other states to conduct hearings for 51 Mexican nationals on death row who claim their rights were violated when local consulates were not notified of their arrests. The directive came after years of criticism from foreign governments and an adverse decision last year by the International Court of Justice, which decreed that U.S. courts should provide "effective review" of each case to determine whether the lack of consular assistance could have affected the outcome. "It's historic. It's a first," said Mark Warren, an international legal analyst who specializes in consular rights. "Whether it will end up providing the rule of decision, as judges like to say, remains to be seen. It is a remarkable development and a very important step toward satisfactory resolution to this issue. But the final chapter has yet to be written."

The Vienna Convention on Consular Relations, ratified by the U.S. Senate in 1969, provides that "consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention; to converse and correspond with him; and to arrange for his legal representation." The Mexican government has complained loudly for years that these rights are often ignored by U.S. authorities. Legal experts were uncertain precisely how the courts in eight states holding the 51 inmates would comply with the executive order, or whether all would even try. Texas Attorney General Greg Abbott immediately challenged the right of President Bush to tell Texas courts what to do. "We respectfully believe the executive determination exceeds the constitutional bounds for federal authority," Abbott said in a prepared statement. His comment echoed Gov. Rick Perry's rejection last year of the international court's opinion. Perry said the court had no jurisdiction over the state's criminal justice system.

Bush's order covers 15 of the 16 Mexican nationals on death row in Texas. Only admitted serial killer Angel Resendiz, convicted of one murder in Houston and implicated in a dozen others in five states, failed to join the case. Houston lawyer Danalynn Recer, who represents Mexican nationals in capital murder cases on behalf of the Mexican government, said Bush's order was significant because it recognizes the importance of U.S. courts complying with established international rights. "When any foreign national is not notified of their right to contact their consulate, they're being denied their government's assistance," Recer said.

Bush's order comes weeks before the U.S. Supreme Court is scheduled to hear arguments in the case of Jose Medellin, who was sentenced to death along with four others for the 1993 murders of Houston teenagers Jennifer Ertman and Elizabeth Peña. Medellin, who was born in Mexico but lived most of his life in Houston, has asked the high court to order a new hearing based the violation of his consular rights under the Vienna Convention. "Medellin has the best chance for a new trial he has ever had," said Mike Charlton, one of his attorneys, who claims that better legal representation paid for by the Mexican government could have made a difference during the sentencing portion of his trial. Abbott said Medellin's conviction has been given ample review and he is not entitled to another one based on the decision of the international court. "Medellin voluntarily confessed to the brutal gang rape and murder of two teenage girls," Abbott said. "He was convicted after a fair trial, applying U.S. and Texas law. The state of Texas believes no international court supersedes the laws of Texas or the laws of the United States."

As a matter of law, the Bush administration agreed with Abbott's assertion. In a brief filed in connection with Medellin's case by the U.S. solicitor general, the administration said neither the Vienna accord nor the international court ruling was legally binding on U.S. courts. However, it also claimed the president had an absolute right to decide, on the basis of foreign policy interests, if and how the U.S. would comply with its international obligations. "The president, the nation's representative in foreign affairs, has determined that the United States will comply with the ICJ decision," the brief states. "Compliance serves to protect the interests of U.S. citizens abroad, promote the effective conduct of foreign relations, and underscores the United States' commitment in the international community to the rule of law. That presidential determination, like an executive agreement, has independent legal force and effect, and contrary state rules must give way under the Supremacy Clause."

Death penalty expert Dudley Sharp said that, barring a similar directive by the U.S. Supreme Court, the state courts likely will decide that their previous reviews have been adequate. "The states are already handling it the way the solicitor general put it in his brief," Sharp said.

WED 03/09/2005
Mexico cheers U.S. decision on Texas inmates

WASHINGTON - Mexico welcomed the Bush administration's decision to allow Mexican citizens on Texas' death row to have their sentences reviewed. The reception in the president's home state, in contrast, was varied. The development came in the Supreme Court case of Jose Medellin, one of five alleged gang members sentenced to die for the Houston killing of Jennifer Ertman and Elizabeth Peña in 1993. Texas Attorney General Greg Abbott said the Bush administration's decision intruded on the state's legal authority. But he did not immediately decide whether to appeal.

U.S. Sen. John Cornyn, a Republican and frequent Bush backer, said last week that "Texas is simply trying to enforce its laws; Medellin has been given access to an attorney, a right to a fair trial, and all of the appeals and habeas corpus rights our system affords." But on Tuesday the senator had no quarrel with the Bush decision, because the American president, not the international court, was passing judgment, Cornyn spokesman Don Stewart said Tuesday. The administration's call for new hearings in state or federal courts, depending on where the cases were originally tried, goes forward unless Texas decides to contest the order in court.

Richard Stoll, a Rice University political science professor, said Bush's decision showed a proper willingness to buck Texas Republicans now that he has broader responsibilities. "There is a certain amount of irony in the president siding against Texas in this case, but when he changed jobs he changed his perspective." he said.

Mexican officials cheered.

"It is very important that the Mexican government express its satisfaction and its recognition of this determination by the United States' executive power, which without a doubt will have an important effect on the cases of our compatriots," said Arturo Dager, legal representative to Mexico's foreign ministry.

THU 03/03/2005
Ruling is a `relief,' but inmates not celebrating / Harris County killers spared by Supreme Court action ponder new sentences

LIVINGSTON - Locked away on Texas' death row for more than a decade, Raul Villarreal knew the meaning of good days and bad. The good days came when appeals were filed to free him from the death sentence he received for the 1993 rape and murder of two teenage Houston girls; the bad, when those appeals met rejection. The worst day came not long ago when the U.S. Supreme Court turned down his most recent appeal, thereby clearing the way for him to be put to death. The best came Tuesday when the same court ruled the execution of murderers who were minors when they committed their crimes is unconstitutional.

On Wednesday, Villarreal, 29, still was struggling to digest the meaning of the ruling, which has spared him and 27 other Texas death row inmates from the executioner's needle. Eleven of those inmates are from Harris County. "In a way," he said after a thoughtful sigh, "it's a big relief. But I didn't act like I was celebrating. It's bittersweet. There are still a lot of guys left behind facing execution."

Villarreal, who was 17 when he and a group of other youths fatally attacked Jennifer Ertman, 14, and Elizabeth Peña, 16, said he has spent recent days coming to grips with the probability that he would be executed. The high court had stayed his scheduled June 24 execution pending a decision in the case resolved Tuesday. "My main worries concerned my family," he said of his mother, Louisa Villarreal, and his four siblings. "They're the ones who would be left behind. I tried to take things one day at a time. I've worked at accepting my responsibilities for the actions that brought me here. It's helped me accept my fate."

Similar thoughts of life, death and the long prison sentences they now likely will have to serve have occupied other Harris County killers spared by the ruling. Johnnie Bernal, 28, who claims he is innocent of the August 1994 killing of Lee Dilley at a Houston ice house, has been on death row since July 1995. He thinks Tuesday's ruling is "a step in the right direction." Villarreal and Bernal were caught up in a spike in juvenile crime in the late 1980s and early 1990s that resulted in an unprecedented number of young offenders on death row. And because those crimes were concentrated in gang-heavy urban centers, the bulk of those offenders were minorities. Of the 28 "juvenile" offenders on Texas' death row, 21 were black, Hispanic or Asian; nine of 13 such offenders executed since 1982 were minorities.

Perry wants cases reviewed

In the wake of Tuesday's ruling, Gov. Rick Perry has directed the Texas Board of Pardons and Paroles to review the 28 cases and recommend appropriate action. It is likely that many will receive life sentences, requiring that they serve 40 years in prison before becoming eligible for consideration for parole. Bernal has appeals pending and is optimistic he ultimately will be cleared of the crime and freed from prison. But he acknowledged that a long sentence would be daunting. "Watching your loved ones passing away and not being able to be there would be heartbreaking," he said. A long prison sentence would also be a continuation of a near-decade behind bars that he said has been filled with remorse. "Every time I pray, I include the Dilley family," he said. "A life's been lost, lives have been destroyed and crushed. Every year I've been in here the depth of my feeling for his family has grown." Life on death row, he said, has not been easy. "I've seen friends almost every other day going to their last Mass," Bernal said. "I've been around. All you could do is prepare yourself mentally and spiritually. ... The more I've thought of the thing, the more at peace with God I've become. I'm not afraid, but I feel sorrow."

"They treat you like you are already dead," added Robert Acuna, 19, who has been on death row about six months for the 2003 killing of his Baytown neighbors, James Carroll, 75, and his wife, Joyce, 74. "They are as life-draining as they legally can be. They keep you out of society. There is no contact visitation, no watching the news on TV, no contact with other inmates. They don't go by names, you have a number. They make you feel unimportant." Acuna said his trial and incarceration often have seemed unreal. "I've seen all this stuff on TV," he said. "But then I realize there's no TV screen." Only when Tyler murderer Donald Aldrich was executed shortly after Acuna's arrival last fall did the young killer recognize the seriousness of his situation. "They took him away and I knew I wasn't going to see him again," Acuna said. Acuna, t


Since 1976	Date of Execution	State	Method	Murderer (Race/Sex/Age at Murder-Execution)	Date of Birth	Victim(s) (Race/Sex/Age at Murder)	Date of Murder	Method of Murder	Relationship to Murderer	Date of Sentence
1030	07-11-06	TX	Lethal Injection	Sean Derrick O'Brien B / M / 18 - 31	04-05-75	Jennifer Ertman W / F / 14 Elizabeth Pena W / F / 16	06-24-93	Strangulation with belt	None	04-07-94