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| Doubts Still Plague the 31-Year-Old Lester Bower Case But Texas is About to Kill Him Anyway | Doubts Still Plague the 31-Year-Old Lester Bower Case But Texas is About to Kill Him Anyway |
| (2 days later) | |
| On Saturday, April 28, 1984, the day Lester Leroy Bower was sentenced to death, his wife, Shari, remembers a carnival taking place on the courthouse square. Through the open windows of the historic 1936 building in Sherman, Texas — north of Dallas and just miles from the Oklahoma state line — jurors could hear live music as they considered Bower’s fate. The band played “Jailhouse Rock,” Shari recalls. | On Saturday, April 28, 1984, the day Lester Leroy Bower was sentenced to death, his wife, Shari, remembers a carnival taking place on the courthouse square. Through the open windows of the historic 1936 building in Sherman, Texas — north of Dallas and just miles from the Oklahoma state line — jurors could hear live music as they considered Bower’s fate. The band played “Jailhouse Rock,” Shari recalls. |
| Bower’s trial was big news in Grayson County. The day before, Friday, he had been found guilty of killing four men, two of them former law enforcement officers, execution style, in a plane hangar on a private ranch, in order to steal an ultralight aircraft. Now the jury had a choice between life in prison or death. As jurors heard from witnesses attesting to Bower’s gentle and non-violent character — he was a religious man who’d never been in trouble with the law — curious carnival-goers moved in and out of the room. There were clowns in full make-up and others eating popcorn and carrying balloons, Shari says. “It was … surreal.” | Bower’s trial was big news in Grayson County. The day before, Friday, he had been found guilty of killing four men, two of them former law enforcement officers, execution style, in a plane hangar on a private ranch, in order to steal an ultralight aircraft. Now the jury had a choice between life in prison or death. As jurors heard from witnesses attesting to Bower’s gentle and non-violent character — he was a religious man who’d never been in trouble with the law — curious carnival-goers moved in and out of the room. There were clowns in full make-up and others eating popcorn and carrying balloons, Shari says. “It was … surreal.” |
| Shari and Les knew what would happen. Shari, who was allowed to sit next to her husband during the trial, was holding his hand. “I turned to him and said, ‘You know what they’re going to do, don’t you?’ He said, ‘Absolutely.’ He said, ‘Why would they find me guilty of such a heinous crime and not give me the death penalty?’” she recalls. The death sentence was “inevitable,” she says. Indeed, that day the jury sentenced Bower to die by lethal injection. | Shari and Les knew what would happen. Shari, who was allowed to sit next to her husband during the trial, was holding his hand. “I turned to him and said, ‘You know what they’re going to do, don’t you?’ He said, ‘Absolutely.’ He said, ‘Why would they find me guilty of such a heinous crime and not give me the death penalty?’” she recalls. The death sentence was “inevitable,” she says. Indeed, that day the jury sentenced Bower to die by lethal injection. |
| More than 30 years later, Bower is still alive. Now 67 and one of Texas’s oldest and longest-serving death row inmates, he has faced seven execution dates. His eighth — and most likely final — is scheduled for Wednesday, June 3. This time, unless the U.S. Supreme Court intervenes, he will almost certainly be executed. | More than 30 years later, Bower is still alive. Now 67 and one of Texas’s oldest and longest-serving death row inmates, he has faced seven execution dates. His eighth — and most likely final — is scheduled for Wednesday, June 3. This time, unless the U.S. Supreme Court intervenes, he will almost certainly be executed. |
| Bower maintains his innocence. He has alleged his defense at trial was deficient, and that prosecutors withheld critical evidence from his attorneys. Moreover, since his conviction, witnesses have come forward to say that they know who really killed the four men in the aircraft hangar at the B&B Ranch — and it wasn’t Les Bower. Although the issues raised by Bower’s case are significant, and questions about his guilt linger, the case has nonetheless escaped wider scrutiny. | Bower maintains his innocence. He has alleged his defense at trial was deficient, and that prosecutors withheld critical evidence from his attorneys. Moreover, since his conviction, witnesses have come forward to say that they know who really killed the four men in the aircraft hangar at the B&B Ranch — and it wasn’t Les Bower. Although the issues raised by Bower’s case are significant, and questions about his guilt linger, the case has nonetheless escaped wider scrutiny. |
| Yet with more details having emerged about the murders after Bower was sentenced to die, his case is as surreal today as was the scene at the courthouse on the day he was condemned 31 years ago. In the intervening decades, it has become a potent example of problems that plague the criminal justice system, raising serious questions about death penalty prosecutions in particular. Among them: How much prosecutorial misconduct is acceptable? Is a defendant entitled to a reasoned defense? If a compelling alternative theory of a crime exists, should a defendant be permitted a second chance at trial? And, does three decades behind bars render an execution cruel and unusual punishment? | Yet with more details having emerged about the murders after Bower was sentenced to die, his case is as surreal today as was the scene at the courthouse on the day he was condemned 31 years ago. In the intervening decades, it has become a potent example of problems that plague the criminal justice system, raising serious questions about death penalty prosecutions in particular. Among them: How much prosecutorial misconduct is acceptable? Is a defendant entitled to a reasoned defense? If a compelling alternative theory of a crime exists, should a defendant be permitted a second chance at trial? And, does three decades behind bars render an execution cruel and unusual punishment? |
| In the face of these questions, Texas courts have repeatedly denied Bower relief. In a 2012 ruling that denied the majority of his claims on appeal, state Judge James Fallon opined that while Bower’s evidence that someone else committed the crime “could conceivably have produced a different result at trial, it does not prove by clear and convincing evidence that [Bower] is actually innocent.” | In the face of these questions, Texas courts have repeatedly denied Bower relief. In a 2012 ruling that denied the majority of his claims on appeal, state Judge James Fallon opined that while Bower’s evidence that someone else committed the crime “could conceivably have produced a different result at trial, it does not prove by clear and convincing evidence that [Bower] is actually innocent.” |
| Before moving to the Dallas suburb of Arlington in July 1983, Bower and Shari lived with their two young daughters in Colorado, where Bower was an avid hobbyist. He was a bow hunter. He was a whitewater rafter who built his own raft frames. He designed and sewed his own tents, sleeping bags and down vests. He was federally licensed to sell firearms, which he also collected. He once scored a rare permit to trek high up into the San Juan Mountains to hunt mountain goats. | Before moving to the Dallas suburb of Arlington in July 1983, Bower and Shari lived with their two young daughters in Colorado, where Bower was an avid hobbyist. He was a bow hunter. He was a whitewater rafter who built his own raft frames. He designed and sewed his own tents, sleeping bags and down vests. He was federally licensed to sell firearms, which he also collected. He once scored a rare permit to trek high up into the San Juan Mountains to hunt mountain goats. |
| When the family moved to the flatland of North Texas, many of Bower’s favorite hobbies became moot — there was no white water to raft, no mountains or mountain goats. In search of a new activity, he fixated on flying — ultralight aircraft flying. Shari was not having it; Bower was nearly six feet tall and weighed 250 pounds. An ultralight aircraft was propelled by a lawnmower engine. Shari said no, “over my dead body,” to Bower’s prospective new hobby. | When the family moved to the flatland of North Texas, many of Bower’s favorite hobbies became moot — there was no white water to raft, no mountains or mountain goats. In search of a new activity, he fixated on flying — ultralight aircraft flying. Shari was not having it; Bower was nearly six feet tall and weighed 250 pounds. An ultralight aircraft was propelled by a lawnmower engine. Shari said no, “over my dead body,” to Bower’s prospective new hobby. |
| Bower was undeterred. He researched ultralight aircraft, deciding he might be able to build one himself. He procured samples of the material that covered an ultralight’s fixed wings to determine if Shari’s sewing machine could handle the job. Eventually, he found an ad for an ultralight for sale in Grayson County — roughly 83 miles north of Arlington. A man named Philip Good was looking to sell an aircraft for $4,500. Bower made a total of three calls to Good and eventually arranged to meet him, on October 8, 1983, at a hangar at the B&B Ranch, where the aircraft, actually owned by a guy named Bob Tate, was stored. | Bower was undeterred. He researched ultralight aircraft, deciding he might be able to build one himself. He procured samples of the material that covered an ultralight’s fixed wings to determine if Shari’s sewing machine could handle the job. Eventually, he found an ad for an ultralight for sale in Grayson County — roughly 83 miles north of Arlington. A man named Philip Good was looking to sell an aircraft for $4,500. Bower made a total of three calls to Good and eventually arranged to meet him, on October 8, 1983, at a hangar at the B&B Ranch, where the aircraft, actually owned by a guy named Bob Tate, was stored. |
| Bower did not tell Shari. He left that morning in his International Scout, an old-school utility vehicle, for a day of hunting, he told her. Instead, that afternoon, Bower headed to the ranch where he met Tate, Good and another man named Jerry Brown. As Bower has described it, he agreed to buy the ultralight, paying $3,000 upfront in cash that he’d saved up. For the remaining $1,500, he penned an IOU on a business card from his job as salesman for a chemical company. Tate slipped Bower’s card into his pocket. Bower says the men helped Bower disassemble the aircraft, which he loaded onto his Scout. When he drove off, Bower has insisted, the three men were very much alive. | Bower did not tell Shari. He left that morning in his International Scout, an old-school utility vehicle, for a day of hunting, he told her. Instead, that afternoon, Bower headed to the ranch where he met Tate, Good and another man named Jerry Brown. As Bower has described it, he agreed to buy the ultralight, paying $3,000 upfront in cash that he’d saved up. For the remaining $1,500, he penned an IOU on a business card from his job as salesman for a chemical company. Tate slipped Bower’s card into his pocket. Bower says the men helped Bower disassemble the aircraft, which he loaded onto his Scout. When he drove off, Bower has insisted, the three men were very much alive. |
| That night, Bob Tate did not come home at his usual time. As his wife Bobbie would later testify at Bower’s April 1984 trial, she went to the hangar on the couple’s ranch and found the place locked up. When she opened the door, she found Tate’s friend, Ronald Mayes. He was dead. She quickly retreated and called the cops. | That night, Bob Tate did not come home at his usual time. As his wife Bobbie would later testify at Bower’s April 1984 trial, she went to the hangar on the couple’s ranch and found the place locked up. When she opened the door, she found Tate’s friend, Ronald Mayes. He was dead. She quickly retreated and called the cops. |
| When police arrived, they found a small-town massacre: four men dead inside the metal hanger. Mayes, found at the entrance, had been shot five times. Farther inside there were three more bodies. Good, Tate and Brown had each been shot twice in the head, execution style, their bodies laid out side by side and covered with carpet. Tate’s own ultralight aircraft was missing. | When police arrived, they found a small-town massacre: four men dead inside the metal hanger. Mayes, found at the entrance, had been shot five times. Farther inside there were three more bodies. Good, Tate and Brown had each been shot twice in the head, execution style, their bodies laid out side by side and covered with carpet. Tate’s own ultralight aircraft was missing. |
| The cops recovered 11 shell casings that examiners would determine were of an exotic brand of ammunition that had been fired from a .22 pistol. The Texas Rangers and the FBI were called into the investigation. (Why the FBI got involved so deeply in the investigation is not entirely clear.) Before long, FBI investigators discovered Bower’s repeated calls to Good. They sought to question him. Bower ultimately acknowledged that he had spoken to Good, but insisted he’d never been to the hangar — a lie — and didn’t know about the murders or the missing ultralight. | The cops recovered 11 shell casings that examiners would determine were of an exotic brand of ammunition that had been fired from a .22 pistol. The Texas Rangers and the FBI were called into the investigation. (Why the FBI got involved so deeply in the investigation is not entirely clear.) Before long, FBI investigators discovered Bower’s repeated calls to Good. They sought to question him. Bower ultimately acknowledged that he had spoken to Good, but insisted he’d never been to the hangar — a lie — and didn’t know about the murders or the missing ultralight. |
| Bower lied because he was afraid, Shari says. He didn’t know what had happened after he left the hangar — or if he had been seen by the killer or killers — and wanted to protect his family. “If I came forward, what might happen about the safety of my family? Then, of course, I had not exactly been truthful with my wife, so there was a level of embarrassment there, family-wise,” Bower told Texas journalist Tim Madigan, who has covered the case extensively. “And once you kind of start a lie, it just kind of grows and it rolls along. It just consumed me.” | Bower lied because he was afraid, Shari says. He didn’t know what had happened after he left the hangar — or if he had been seen by the killer or killers — and wanted to protect his family. “If I came forward, what might happen about the safety of my family? Then, of course, I had not exactly been truthful with my wife, so there was a level of embarrassment there, family-wise,” Bower told Texas journalist Tim Madigan, who has covered the case extensively. “And once you kind of start a lie, it just kind of grows and it rolls along. It just consumed me.” |
| In a subsequent search of the Bower home, investigators found pieces of the ultralight. On Jan. 20, 1984, Bower was arrested. He was charged with four counts of capital murder. | In a subsequent search of the Bower home, investigators found pieces of the ultralight. On Jan. 20, 1984, Bower was arrested. He was charged with four counts of capital murder. |
| In addition to Bower’s lies and the pieces of plane found at his home, the state also had another piece of evidence it considered damning, the Italian-made Fiocchi ammunition shell casings collected at the scene. The ammunition was exceedingly rare and had no other purpose than for killing people, the state insisted — and it had evidence that Bower was one of very few people who had purchased it. No murder weapon was ever recovered, but the rare nature of the ammo was enough to draw a direct line between Bower and the murder. | In addition to Bower’s lies and the pieces of plane found at his home, the state also had another piece of evidence it considered damning, the Italian-made Fiocchi ammunition shell casings collected at the scene. The ammunition was exceedingly rare and had no other purpose than for killing people, the state insisted — and it had evidence that Bower was one of very few people who had purchased it. No murder weapon was ever recovered, but the rare nature of the ammo was enough to draw a direct line between Bower and the murder. |
| Other evidence remained unaccounted for. The $3,000 Bower said he paid Tate was never found. A business card was found in Tate’s pocket, but was not described in detail in any report. The card was later lost, says Bower’s attorney Peter Buscemi. | Other evidence remained unaccounted for. The $3,000 Bower said he paid Tate was never found. A business card was found in Tate’s pocket, but was not described in detail in any report. The card was later lost, says Bower’s attorney Peter Buscemi. |
| Less than three months after he was arrested, and after just two hours of deliberation, Bower was convicted of murder. | Less than three months after he was arrested, and after just two hours of deliberation, Bower was convicted of murder. |
| It was not until Bower was entering his fifth year on death row that his new defense team would start to understand how much was previously unknown about the state’s case against their client. Those lawyers, who have represented Bower pro bono for 26 years, argue that the state hid key information that undercut its case, that Bower’s original defense attorney — currently a sitting Texas judge — failed to adequately defend Bower, and that new evidence proves that Bower did not commit the crime. | It was not until Bower was entering his fifth year on death row that his new defense team would start to understand how much was previously unknown about the state’s case against their client. Those lawyers, who have represented Bower pro bono for 26 years, argue that the state hid key information that undercut its case, that Bower’s original defense attorney — currently a sitting Texas judge — failed to adequately defend Bower, and that new evidence proves that Bower did not commit the crime. |
| According to documents maintained by the FBI, but never turned over to Bower’s defense by prosecutors, what the state presented to the jury about the Fiocchi ammunition was not accurate. Amid thousands of pages of records ultimately released to the lawyers was evidence that the state knew the ammunition was nowhere near as rare as prosecutors and witnesses had suggested; that it was marketed for small game hunting and often used for practice shooting, not just for killing people; and that Bower was hardly alone in having purchased it. (Bower’s lawyers had to file multiple Freedom of Information Act requests and, ultimately, sue to get all the of the withheld documents.) | According to documents maintained by the FBI, but never turned over to Bower’s defense by prosecutors, what the state presented to the jury about the Fiocchi ammunition was not accurate. Amid thousands of pages of records ultimately released to the lawyers was evidence that the state knew the ammunition was nowhere near as rare as prosecutors and witnesses had suggested; that it was marketed for small game hunting and often used for practice shooting, not just for killing people; and that Bower was hardly alone in having purchased it. (Bower’s lawyers had to file multiple Freedom of Information Act requests and, ultimately, sue to get all the of the withheld documents.) |
| Also in the records was a detailed and previously undisclosed tip that the murders were actually connected to drug dealing in the area. In December 1983, the FBI was told that local drug supplies had dwindled after a source was “knocked off in Sherman.” Bower’s lawyers point out that, at the time, there were no other murder victims in Sherman, Texas apart from the bodies found in the hangar. What’s more, at the time, allegations existed that one of the victims, Tate, had been involved in cocaine trafficking in the years leading up to the murders — allegations that investigators knew about. But these claims went un-investigated — including by Jerry Buckner, Bower’s trial attorney. | Also in the records was a detailed and previously undisclosed tip that the murders were actually connected to drug dealing in the area. In December 1983, the FBI was told that local drug supplies had dwindled after a source was “knocked off in Sherman.” Bower’s lawyers point out that, at the time, there were no other murder victims in Sherman, Texas apart from the bodies found in the hangar. What’s more, at the time, allegations existed that one of the victims, Tate, had been involved in cocaine trafficking in the years leading up to the murders — allegations that investigators knew about. But these claims went un-investigated — including by Jerry Buckner, Bower’s trial attorney. |
| The unraveling of the case continued when in 1989, a woman, identified publicly only as “Pearl” (her identity has been protected by the courts), read an article about an appeal of Bower’s case. She told Bower’s lawyers she knew who killed the four men inside the plane hangar, and that Bower wasn’t one of them. According to Pearl, her then-boyfriend, Lynn, and his friends — Ches, and either Rocky or Bear — committed the murders in connection to a drug deal gone wrong. She heard Lynn and Ches talk about the killings; she knew that Lynn suffered from a repeated nightmare where he saw one of the victim’s eyes staring at him, and heard the sound of gunshots reverberating off the metal walls at the crime scene. Pearl’s story, which she has testified to several times, has been corroborated by others — including the wife of one of the men, who said she too knew that her husband had been involved in the hangar murders. In an interview with a defense investigator, Ches also admitted that in the 1980s he owned a .22 pistol and used Fiocchi ammunition. | The unraveling of the case continued when in 1989, a woman, identified publicly only as “Pearl” (her identity has been protected by the courts), read an article about an appeal of Bower’s case. She told Bower’s lawyers she knew who killed the four men inside the plane hangar, and that Bower wasn’t one of them. According to Pearl, her then-boyfriend, Lynn, and his friends — Ches, and either Rocky or Bear — committed the murders in connection to a drug deal gone wrong. She heard Lynn and Ches talk about the killings; she knew that Lynn suffered from a repeated nightmare where he saw one of the victim’s eyes staring at him, and heard the sound of gunshots reverberating off the metal walls at the crime scene. Pearl’s story, which she has testified to several times, has been corroborated by others — including the wife of one of the men, who said she too knew that her husband had been involved in the hangar murders. In an interview with a defense investigator, Ches also admitted that in the 1980s he owned a .22 pistol and used Fiocchi ammunition. |
| Defense attorneys have argued that the state failed to comply with its legal obligation under Brady v. Maryland to turn over to the defense exculpatory and impeachment evidence. They say Bower was also hamstrung by the deficient performance of his defense attorney, Buckner, who not only failed to investigate the background of the victims, but adopted a hasty and untenable defense strategy, blocking Bower from testifying on his own behalf. | Defense attorneys have argued that the state failed to comply with its legal obligation under Brady v. Maryland to turn over to the defense exculpatory and impeachment evidence. They say Bower was also hamstrung by the deficient performance of his defense attorney, Buckner, who not only failed to investigate the background of the victims, but adopted a hasty and untenable defense strategy, blocking Bower from testifying on his own behalf. |
| Bower wanted to take the stand. Although he had lied to the FBI about being at the hangar and buying the ultralight, he quickly confessed once he had been jailed, telling both family members and his attorney the real story, Shari recalls. Buckner told the press that he could prove Bower was not at the scene — and he considered that enough. “Les and I said, ‘He’s got to tell his story,’” Shari says. But Buckner “said, ‘Well, I don’t think that’s a good idea’ — and he said, ‘I’ve already told them that you weren’t here so we’re going to go with that.’” | Bower wanted to take the stand. Although he had lied to the FBI about being at the hangar and buying the ultralight, he quickly confessed once he had been jailed, telling both family members and his attorney the real story, Shari recalls. Buckner told the press that he could prove Bower was not at the scene — and he considered that enough. “Les and I said, ‘He’s got to tell his story,’” Shari says. But Buckner “said, ‘Well, I don’t think that’s a good idea’ — and he said, ‘I’ve already told them that you weren’t here so we’re going to go with that.’” |
| Buckner has denied that he provided lackluster service to his client, failed to do necessary investigation or prevented Bower from testifying. | Buckner has denied that he provided lackluster service to his client, failed to do necessary investigation or prevented Bower from testifying. |
| In its response to Bower’s appeals, the state of Texas has agreed with Buckner’s self-assessment. Moreover, it has argued that the alternate theory of the crime testified to by Pearl and others is “preposterous,” and that the materials it failed to turn over to the defense regarding the availability and uses of the Fiocchi ammunition were “meaningless” and would not have done anything to help Bower to avoid a conviction. “[I]t was the evidence concerning the ultralight and Bower’s nefarious behavior in that regard that was most damaging,” the state opined in a 2006 filing. The FBI documents “do not undermine this evidence.” | In its response to Bower’s appeals, the state of Texas has agreed with Buckner’s self-assessment. Moreover, it has argued that the alternate theory of the crime testified to by Pearl and others is “preposterous,” and that the materials it failed to turn over to the defense regarding the availability and uses of the Fiocchi ammunition were “meaningless” and would not have done anything to help Bower to avoid a conviction. “[I]t was the evidence concerning the ultralight and Bower’s nefarious behavior in that regard that was most damaging,” the state opined in a 2006 filing. The FBI documents “do not undermine this evidence.” |
| To date, the courts have essentially agreed. | To date, the courts have essentially agreed. |
| It is not uncommon for defense lawyers to raise on appeal issues of prosecutorial misconduct — such as withholding evidence from the defense — or of ineffective assistance of counsel. It is also not uncommon for defendants to lose these arguments. Indeed, the threshold is high: To prevail, a defendant must prove, in part, that there is a reasonable probability that the outcome of the trial would have been different but for the misconduct. | It is not uncommon for defense lawyers to raise on appeal issues of prosecutorial misconduct — such as withholding evidence from the defense — or of ineffective assistance of counsel. It is also not uncommon for defendants to lose these arguments. Indeed, the threshold is high: To prevail, a defendant must prove, in part, that there is a reasonable probability that the outcome of the trial would have been different but for the misconduct. |
| Consider the case of Calvin Burdine, also sent to Texas’s death row in 1984. On appeal he argued that his lawyer, now deceased, was ineffective because he’d fallen asleep during Burdine’s trial. The Texas Court of Criminal Appeals ruled that a sleeping lawyer wasn’t necessarily a bad lawyer, and that there was no evidence the outcome of the trial would have been different had Burdine’s attorney been awake. A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled similarly that Burdine couldn’t prove when during trial his lawyer was actually asleep, and that there wasn’t an absolute right to an attorney who was awake throughout trial. The full Fifth Circuit reversed that decision and Burdine was ultimately granted a new trial. (Burdine ultimately pleaded guilty and is serving life in prison.) | Consider the case of Calvin Burdine, also sent to Texas’s death row in 1984. On appeal he argued that his lawyer, now deceased, was ineffective because he’d fallen asleep during Burdine’s trial. The Texas Court of Criminal Appeals ruled that a sleeping lawyer wasn’t necessarily a bad lawyer, and that there was no evidence the outcome of the trial would have been different had Burdine’s attorney been awake. A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled similarly that Burdine couldn’t prove when during trial his lawyer was actually asleep, and that there wasn’t an absolute right to an attorney who was awake throughout trial. The full Fifth Circuit reversed that decision and Burdine was ultimately granted a new trial. (Burdine ultimately pleaded guilty and is serving life in prison.) |
| Prosecutorial misconduct is at least equally as hard to prove — and can be at least equally difficult to ferret out in the first place. “Nine times out of ten, if a prosecutor wants to hide something it stays hidden — for good. Which means we only ever get to see the tip of the iceberg when it comes to Brady violations,” wrote Laura Fernandez, Senior Liman Fellow in Residence at Yale Law School, who researches prosecutorial misconduct, in an email to The Intercept. And when the information does come out — typically via a combination of dogged determination on the part of defense counsel and of luck — courts are often still unpersuaded by the breach of duty. “Unfortunately, the all-too-common response of appellate courts has been to conclude that the overall case against a defendant was so strong that the prosecutorial misconduct, in effect, didn’t matter: in other words, no harm, no foul,” Fernandez continued. “But of course there is harm when a prosecutor engages in misconduct. Prosecutorial misconduct amounts to a stain on the justice system itself.” | Prosecutorial misconduct is at least equally as hard to prove — and can be at least equally difficult to ferret out in the first place. “Nine times out of ten, if a prosecutor wants to hide something it stays hidden — for good. Which means we only ever get to see the tip of the iceberg when it comes to Brady violations,” wrote Laura Fernandez, Senior Liman Fellow in Residence at Yale Law School, who researches prosecutorial misconduct, in an email to The Intercept. And when the information does come out — typically via a combination of dogged determination on the part of defense counsel and of luck — courts are often still unpersuaded by the breach of duty. “Unfortunately, the all-too-common response of appellate courts has been to conclude that the overall case against a defendant was so strong that the prosecutorial misconduct, in effect, didn’t matter: in other words, no harm, no foul,” Fernandez continued. “But of course there is harm when a prosecutor engages in misconduct. Prosecutorial misconduct amounts to a stain on the justice system itself.” |
| It has been just more than 31 years since Bower was sent to Texas’s death row. In that time he’s seen lots of changes. Death row used to be far less oppressive: there were barred cells when he first arrived, interaction with inmates, even work assignments. After a group of six inmates plotted to escape the facility, the state in 1999 moved death row to a more secure facility where inmates are housed individually behind solid-door cells, 23 hours a day. | It has been just more than 31 years since Bower was sent to Texas’s death row. In that time he’s seen lots of changes. Death row used to be far less oppressive: there were barred cells when he first arrived, interaction with inmates, even work assignments. After a group of six inmates plotted to escape the facility, the state in 1999 moved death row to a more secure facility where inmates are housed individually behind solid-door cells, 23 hours a day. |
| Bower is among the longest-serving and oldest death row inmates in the country. If executed this week, he will become the oldest and longest-serving inmate executed in Texas. | Bower is among the longest-serving and oldest death row inmates in the country. If executed this week, he will become the oldest and longest-serving inmate executed in Texas. |
| The nation’s longest-serving death row inmate, Gary Alvord, a schizophrenic Florida prisoner who was sent to death row in 1974, died of natural causes in 2013; the nation’s oldest death row inmate, Viva Leroy Nash, died at 83 while awaiting execution in Arizona, where he was sent to death row in 1983. At the time of his death he was nearly blind, in a wheelchair, and suffering from dementia, according to the Death Penalty Information Center. | The nation’s longest-serving death row inmate, Gary Alvord, a schizophrenic Florida prisoner who was sent to death row in 1974, died of natural causes in 2013; the nation’s oldest death row inmate, Viva Leroy Nash, died at 83 while awaiting execution in Arizona, where he was sent to death row in 1983. At the time of his death he was nearly blind, in a wheelchair, and suffering from dementia, according to the Death Penalty Information Center. |
| Although current and former Supreme Court justices have questioned the constitutionality of execution after such a long sentence — often served out in near-solitary confinement — the court has never accepted a case that would have them directly confront the issue. “Executing defendants after such long delays is unacceptably cruel,” now-retired Justice John Paul Stevens wrote in 2009, dissenting from the court’s decision to allow the execution of a Florida prisoner who had served 32 years. (Justice Clarence Thomas disagreed, opining that “It is the crime — not the punishment imposed by the jury or the delay in petitioner’s execution — that was ‘unacceptably cruel.’”) | Although current and former Supreme Court justices have questioned the constitutionality of execution after such a long sentence — often served out in near-solitary confinement — the court has never accepted a case that would have them directly confront the issue. “Executing defendants after such long delays is unacceptably cruel,” now-retired Justice John Paul Stevens wrote in 2009, dissenting from the court’s decision to allow the execution of a Florida prisoner who had served 32 years. (Justice Clarence Thomas disagreed, opining that “It is the crime — not the punishment imposed by the jury or the delay in petitioner’s execution — that was ‘unacceptably cruel.’”) |
| As Bower runs out of time before his execution date, he and Shari want one thing: A new trial. Put all the evidence out on the table, let Bower testify and then see what happens. Shari doubts that a jury, knowing everything that could’ve been known back in 1984, would still send her husband to death. | As Bower runs out of time before his execution date, he and Shari want one thing: A new trial. Put all the evidence out on the table, let Bower testify and then see what happens. Shari doubts that a jury, knowing everything that could’ve been known back in 1984, would still send her husband to death. |
| But the only thing that could likely prevent Bower’s execution on June 3 is a ruling from the Supreme Court that would, at the very least, offer him a new punishment hearing. Bower was sentenced under an old scheme that the courts have ruled did not offer jurors an opportunity to properly consider mitigating evidence that might spare a defendant’s life. A lower court has agreed Bower should be granted that new hearing, but the state and federal appeals courts have disagreed. It’s now up to the high court to decide, which it may do at any time before 6 p.m. on Wednesday, when Bower’s death warrant takes effect. | But the only thing that could likely prevent Bower’s execution on June 3 is a ruling from the Supreme Court that would, at the very least, offer him a new punishment hearing. Bower was sentenced under an old scheme that the courts have ruled did not offer jurors an opportunity to properly consider mitigating evidence that might spare a defendant’s life. A lower court has agreed Bower should be granted that new hearing, but the state and federal appeals courts have disagreed. It’s now up to the high court to decide, which it may do at any time before 6 p.m. on Wednesday, when Bower’s death warrant takes effect. |
| And although Shari and Les Bower’s lives took a sharp turn from what they imagined life would be when they married in 1968, Shari has remained devoted to her husband and is awed by his sanguine attitude in the shadow of death. “Years ago I said to Les — it was probably right before an execution date — I said to Les, ‘When you die and get to heaven, isn’t the first thing you’re going to want to do is run up to God and say, what were you thinking? Why did we have to go through this?’” she recalls. “And he said, ‘When I die and go to heaven, I won’t care.’ That’s his testimony.” | |
| Photo: Michael Graczyk/AP | Photo: Michael Graczyk/AP |