The story behind a defining case and the transformation of death penalty trials in the U.S.
Image via The Texas Department of Criminal Justice
A Shooting in Austin
David Lee Powell was on his way to sell methamphetamine on the south side of Austin, Texas. It was shortly after midnight on the evening of May 17, 1978, and he sat in the passenger seat of his girlfriend Sheila Meinert’s red Mustang as they cruised through the neighborhood. He wore white pants and a chain around his neck, and his eyes gaped wide under a stringy mop of long brown hair that looked a bit like a hastily placed wig.
Ralph Ablanedo, a 26-year-old police officer on routine patrol duty, saw that the car in front of him was missing a rear license tag and flashed his lights. Ablanedo did not know that the 27-year-old man in the passenger seat was a former University of Texas honors student, the once-amiable son of a respected rural family who had dropped out of school, taken to drugs, and was now living in ambiguous relation with two women.
He also did not know that Powell, deep in a methamphetamine-induced haze, was carrying $5,000 worth of the stuff, a .45 caliber pistol, an AK-47 with nearly forty rounds of ammunition, and a hand grenade. Ablanedo took the couple’s names back to his car to check for warrants. He radioed the dispatcher, who told him that Meinert was not wanted.
Ablanedo handed Meinert a ticket and returned to his car, asking the dispatcher to check on Powell’s name as the Mustang begin to crawl away. Then, the dispatcher called back and told Ablanedo that Powell had a warrant out for writing bad checks. Following protocol, another young cop named Bruce Mills was sent to the scene as backup.
The back window of the Mustang had been blown out by gunfire. Mills cradled Ablanedo’s head in his lap in the grass as he cried out, before succumbing to his wounds, “He got me with the shotgun.”
Minutes later, over his garbled hand-held radio, Mills heard screams. He raced to find Ablanedo lying in the street, shouting, “That damn girl.”
The back window of the Mustang had been blown out by gunfire. Mills cradled Ablanedo’s head in his lap in the grass as he cried out, before succumbing to his wounds, “He got me with the shotgun.”
“He hadn’t even pulled his weapon,” Mills later said.
A group of officers chased Powell and Meinert to a parking lot near an apartment complex and traded shots. A grenade flew toward the police with its pin pulled out, but its safety device in place. The cops caught Meinert and handcuffed her, while Powell ran off toward a high school several blocks away. A few hours later, in the early morning, police found Powell hiding in some shrubs.
“I kept asking him why he killed [Ablanedo],” one officer later remembered, “and he never said a word.”
Once Powell was booked at the county jail, detectives raided his house, finding numerous pamphlets and books about gun ownership and rudimentary tools for cooking methamphetamine. They handed the results of their investigation off to the District Attorney’s office, which would prosecute Powell for capital murder. They would have the choice of whether to seek the death penalty.
In the 1970s, Austin was a small city oriented mostly around the state legislature and the University of Texas, but it was growing. The number of university students doubled in the 1960s. It was also slowly developing the liberal, laid-back culture for which it is still known today, with small punk, blues and country music clubs springing up around the university and on the South side, hosting future stars like Willie Nelson and Janis Joplin.
Austin’s place in the turbulence of the 1960s had been cemented in 1966, when a University of Texas student Charles Whitman took a rifle to the top of the tower in the middle of the campus and opened fire, killing fourteen and wounding thirty-one. Whitman was an expert marksman who had won awards as a sniper for the U.S. Marine Corps. The Austin Police Department was at first unable to do anything to stop him, but finally they discovered an underground tunnel could get them access to the building. As others shot back at Whitman, several officers reached the tower. He turned and began shooting at them. One officer shooting back hit him several times. It was one of the worst mass shootings in American history, and helped lead to the creation of SWAT teams around the country.
He would become the longest serving death row inmate in Texas to ever be executed. The trials would span several decades and legal arguments in Powell’s case would encompass almost the entire history of the death penalty since the 1970’s in Texas… The friction born of this conflict would produce a thicket of legal argument questioning the efficacy, morality, and methodology of the death penalty as it has come to be practiced in the United States today.
Austin police were national heroes and the story of their success was told locally for decades. Still, they weren’t invincible, as Ablanedo’s death made clear. By the time of Powell’s arrest in 1978, Austin prosecutors still tended to seek the death penalty less often than their Texas counterparts, but Officer Ablanedo’s death was the third cop slaying in the 1970s, and it made the front-page news. A prosecutor would later tell Powell’s jury, “If [the police] are not protected by us, then our freedom will be lost. It’s quite as simple as that.”
Facing pressure from the community, prosecutors began preparing for a lengthy trial, in which they would attempt to convince a jury to sentence Powell to death. The message needed to be sent that this kind of crime would be harshly punished.
They would succeed in this, but not cleanly: Powell would eventually sit through three trials for the same crime. Juries mulled over the question of whether he should be given a death sentence, as appeals courts rejected his convictions for various technical issues. He would become the longest serving death row inmate in Texas to ever be executed. The trials would span several decades and legal arguments in Powell’s case would encompass almost the history of the death penalty since the 1970’s in Texas, a state where retribution and the rights of defendants are often in conflict. The friction born of this conflict would produce a thicket of legal argument questioning the efficacy, morality, and methodology of the death penalty as it has come to be practiced in the United States today.
Six years before the murder, in 1972, the U.S. Supreme Court decided that the death penalty, as it was then practiced in Texas and numerous other states, was unconstitutional. In the decision Furman v. Georgia, several of the justices lamented that the system for determining who would be sentenced to death and who would not was unconstitutional because it was arbitrary. Justice Potter Stewart compared the likelihood of receiving a death sentence to that of being struck by lightning.
The next year, the Texas legislature met and drafted a new death penalty law. With various tweaks, it has lasted until today: In order to hand down a death sentence in Texas, a jury would first find the defendant guilty. Then, in a second part of the trial, the same jury would have to find that the defendant would be a “continuing threat to society” if spared execution.
The goal of the legislation, explained attorney Eric Citron in a legal journal, was to work as a “safety valve” or, “a way that the extraordinarily sympathetic killer might be spared” (emphasis in original). If the murderer didn’t seem like the kind of person who normally killed people, and this one act was a fluke rather than part of a pattern, then the jury could decide he was not a “threat to society,” that it would never happen again, and give him a life sentence.
Prosecutors and defense attorneys would come to call this provision “future dangerousness” and use everything—from psychological profiles to actuarial data to childhood biography—to argue whether a convicted murderer was or was not likely to kill again.
American courtroom trials have always been competitions over which lawyer can tell the best story about what has already happened. The style of narration favored by prosecutors in high stakes murder trials shares a great deal with the genre of true crime. Both use suspense and a rhetorical drive towards surprise in order to highlight the ghastly horror of what has been done. The presentation of future dangerousness allows this style to reach new heights, since it invites the jury to imagine all of the horrible things a defendant may yet still do, to write their own version of the end of an already haunting story.
Defense attorneys counter this with their own narratives, which focus on the life histories of the defendants and arguments for why they deserve the jury’s sympathy. The stories are often heart-breaking histories with the flavor of Toni Morrison or Carson McCullers. There’s often mental illness, addiction, parental abuse, sometimes rape or incest, and nearly always crushing poverty.
Though David Powell was an outlier in many ways—he was not poor growing up, he attended college—his three trials and sets of appeals reflected the way these styles of storytelling have changed and not changed over the last three decades. Since Powell himself was largely silent until the final months of his life, he became an empty vessel for the competing accounts told by lawyers, doctors, activists, friends, and enemies of his past and present, and most of all, his future. By murdering a police officer, he had started writing a story over which he soon lost all control.
Death is Never Tragic
Within days of his arrest, Powell met with a state psychiatrist, Dr. Richard Coons, at the county jail, who determined that he was operating with an IQ of 128. In the meantime, the defense hired a forensic psychiatrist, Dr. Emanuel Tanay, and he conducted his own interviews with Powell and his family and friends.
Tanay, then fifty years old, had been born to a Jewish family in 1928 in Poland and raised during the rise of the Third Reich. In 1943, he escaped through Hungary and immigrated to the U.S., where he built a career as a forensic psychiatrist, later testifying at the trials of Theodore Bundy and Jack Ruby. In his 1976 book, The Murderers, a study of why people commit homicide, he wondered whether his early exposure to Nazism explained his interest in American murderers.
He speculated that the connection lay in his desire to understand scientifically why people kill one other. “I would think the time has come when the problem of killing a human being should be approached in rational fashion,” he wrote. “Prevention is the result of comprehension.”
The doctor explained to the jury at Powell’s trial how he refused to rely solely on his interviews with a patient to make an evaluation. Instead, he relied just as much on interviews with family members and other outside information, seeing how these other sources either verified or contradicted the patient’s statements.
It was just four months after the murder. Powell sat in the courtroom, wearing a dark cardigan. His hair had been trimmed from the original unruly mass to a neat, ’70s-style bob, and he had grown a thin mustache. Tanay presented his scholarly analysis of Powell’s mind to the jury. He had found that Powell had a hereditary disposition to psychotic illness. According to Tanay, his parents’ divorce in his teenage years, followed by drug use, triggered increasing signs of paranoid schizophrenia: “It’s as if he answers a question,” Tanay told the court, “it sounds logical, but there’s no answer to the question you have asked.”
He determined that Powell, once off drugs, would not pose a threat to anyone. Between his drug use, depression, and subsequent psychosis, Tanay argued, the rope between his mind and the world had been slashed. With drug treatment and lots of counseling, that rope could be rewoven, and Powell could be saved from himself.
At the trial, Powell himself did not testify. Though the reason he refrained from doing so is not clear, usually criminal defendants avoid testifying so that they cannot be cross-examined.
Reading these transcripts years later, I was struck by the way the anecdotes Tanay believed showed Powell’s sanity–that showed he was made mad by trauma and drug use–seemed instead to portray a monster. When Tanay had asked Powell, weeks before the trial, “How do you feel about having killed another human being who has done you no wrong?” Powell had responded, “Death is never tragic, only life is.”
Dr. Richard Coons, the state psychiatrist, followed Tanay on the stand. He played an easy game of catch with the prosecutor.
“Did you see any evidence of any sort of psychosis?”
“Did you see any evidence of any sort of paranoid schizophrenia?”
“Paranoid schizophrenia, no.”
“Did you see any delusional behavior, any delusions on the part of the defendant?”
While Tanay’s account had rationality, Coons’ picture provided a certain clarity for the jury. To Coons, Powell was simply a murderer: sane, smart, and culpable. A murderer who would kill again.
Although speaking as experts, Tanay and Coons were paid for their testimony, and their arguments echoed those of the defense and prosecution, respectively. Tanay saw outside factors influencing Powell and his behavior as the result of those factors. Coons stressed Powell’s choices and self-awareness. Implicitly, Tanay and Coons were battling over whether, and at what point, Powell could exercise free will.
The legislature had meant to use future dangerousness as a “safety valve” to save a handful of sympathetic murderers, but it had now become an insoluble paradox. Both sides of Powell’s case could see free will as well as uncontrollable influences in his actions. The only difference was on which side of the murder, before or after, they placed the two competing concepts.
For Tanay, Powell lacked much of his free will in the past but had it in the future, whereas for Coons, he had it in the past, abused it, and now was incapable of exercising it. In order to decide that a murderer would kill again, the jury would need to be convinced that he no longer had the free will to renounce violence. And yet, in order to make the defendant irredeemable, the actions that got him to a death penalty trial in the first place needed to be the products of free will.
Because Powell’s family had enough money to hire Tanay, someone who could credibly challenge the state’s case with his own analysis, this was one of the first times these issues had been brought to life in a courtroom. It was no longer a question of “safety valves,” as the legislature had intended. Every death penalty trial would now involve this fundamental battle over future dangerousness, between two narratives of free will and fate.
Powell’s defense lawyer closed his arguments by bringing to the surface what Tanay had only gestured towards, that they too would be regular people responsible for murder if they sentenced Powell to be executed. “There is nothing you can do… to bring that man [Ablanedo] back,” he told them, “so what are you going to do if you give the death penalty is commit murder… . You are the twelve that will answer to your Maker on judgment day, and murder is still murder… . You sleep with it. I don’t. I’ve done my work.”
Closing for the prosecution, District Attorney Ronnie Earle called Powell a “spoiled brat,” referring perhaps to his privileged upbringing, and argued that of course they would not be committing murder. It was simply a matter of civic duty. “How many times have you heard in PTA meetings and neighborhood gatherings… ‘Why don’t they do something about crime?’” he asked them. “How many times have you heard people talk about ‘they,’ this mysterious body of people who have the responsibility to enforce our laws for us? Well there is no ‘they’ except you.”
It was their civic duty to assess whether Powell would be a “continuing threat to society” when making their decision. “That’s a moral responsibility that you have,” he said. “You have to be sure before you answer that David Lee Powell won’t kill again.” On September 28, 1978, the jury sentenced Powell to death.
Powell’s lawyers appealed the verdict, objecting to Coons’ testimony. They argued that Powell had never been told that the results of their meetings would be used against him in the trial and he should have had a lawyer appointed at that early stage. But it would be more than a decade later, in 1989, before the Supreme Court agreed and reversed Powell’s conviction, allowing him to be retried. This time the prosecution could not have a psychologist examine him. Powell and the Ablanedo family would again sit through a grueling trial, debate over future dangerousness, and decide whether he would be executed.
Powell’s first trial had taken place before any actual executions had been carried out under the new laws in Texas. But since the lethal injection of a young black man named Charlie Brooks in December 1982, over forty more men had been put to death by the new method, which had replaced the electric chair.
During that period, the issue of future dangerousness in death penalty cases had exploded as a source of controversy, migrating out of legal circles and into the popular press. Just four months after Powell had shot and killed Ablanedo, in August of 1978, a man named Thomas Barefoot shot Police Officer Carl Levin in Bell County, an hour’s drive north of Austin. Barefoot was already wanted in New Mexico on charges that he had raped a 3-year-old girl, and he had likely shot Levin to avoid arrest. The prosecutors sought the death penalty and won.
Five years later, when it too wound up before the U.S. Supreme Court, the Barefoot case completely reshaped the way prosecutors approached future dangerousness by giving them a new set of courtroom tools. The District Attorney in Barefoot’s trial was a young lawyer named Arthur Eads. His friends affectionately called him “Cappy.”
Assume with Me
I met Cappy on a balmy afternoon two years ago in Salado, Texas, where he had retired into working once a week as a local judge. I was interviewing him for the Texas After Violence Project, an oral history organization based in Austin.
Though Eads was suffering from the cancer that would take his life several months later, he appeared spry, wrinkling his brow and taking long pauses to emphasize the gravity of the prosecuting tasks that had checkered his long career. He waxed at length on the importance of stoicism in his line of work. “You don’t want your heart surgeon crying over a missed stitch,” he told me. “You don’t want your lawyer or DA to become so emotionally involved that it affects their judgment.”
Eads said that around the time of Powell’s conviction, defense lawyers were starting to feel like their clients were being cheated, under the guise of medical objectivity, into giving up evidence that would be used against them in the trial. Powell, like others, had talked to psychiatrists like Coons freely, only to be attacked with their own words in the courtroom. The Supreme Court agreed, and psychological evaluations were no longer allowed. “That whole line of thinking was in one fell swoop out the window,” Eads explained.
His small staff of prosecutors was stumped for days. They needed a psychiatrist to make their case for future dangerousness credible, but what psychiatrist would testify without having ever met the defendant?
An appellate lawyer in the office came to Eads with an idea. They would ask a “hypothetical,” or a series of suppositions. An expert, in this case a psychiatrist or psychologist, would be asked to give an opinion based on “hypothetical” information. But it wouldn’t be hypothetical, exactly, since Eads would use the facts of the case at hand.
He would describe the actions of the murderer, not only presenting information to the expert but also repeating all of the grisly facts of the defendant’s actions to the jury. “You can cover every aspect of his conduct,” Eads told me, “and those aspects that you know speak to a mental state—like psychotic behavior, no remorse, total lack of guilt, non-caring, insensitive,” and most importantly, that he would present a danger in the future.
Although the tactic had been used in civil cases, the Barefoot case was the first time a criminal defendant had been the subject of hypothetical testimony. Barefoot’s lawyer objected, his objection was noted in the record, and the issue was appealed to higher courts. The Supreme Court sided with Eads. Barefoot was executed in 1984. He is mostly lost to the historical record. Eads called him a “slug.” A longtime death row inmate recently told me he only remembered that Barefoot was quiet and “kind of strange,” and that Barefoot had been friends with Powell.
Grigson told the prosecutor his theory about the woman, and the prosecutor “dug up” a little bit of information about her from the jury questionnaire, finding that she had a fourteen-year-old daughter… . “I got back on the stand and had the prosecutor ask me [about the defendant] ‘Is this the kind of man that would rape and kill fourteen-year-old girls?’ And we went into that. And she uncrossed her legs.” The jury voted for death, unanimously.
Defense attorneys were outraged. The American Psychological Association submitted a brief siding with them, and challenging the credibility of psychology experts who purported to be able to predict future behavior.
But with the Supreme Court’s blessing, the practice of asking hypothetical questions flourished. One psychiatrist, Dr. James Grigson, became the standard-bearer, taking fees to testify in hundreds of trials that the defendant in question would be a continuing danger to society.
In 1990, a year before Powell’s second trial, Ron Rosenbaum, a writer for Vanity Fair, spent two intense days with Grigson in which he testified at three trials in three small Texas towns. The article, “Travels with Dr. Death,” powerfully suggests that Grigson—a “traveling salesman” for the death penalty—was remorseless about helping to secure death sentences. Rosenbaum highlights in particular one instance where Grigson had a holdout juror, a woman who he felt “had her mind set against voting for the death penalty.”
During a coffee break in the middle of the trial, Grigson told the prosecutor his theory about the woman, and the prosecutor “dug up” a little bit of information about her from the jury questionnaire, finding that she had a fourteen year-old daughter. When Grigson took the stand after the break, as he regaled to Rosenbaum, “I got back on the stand and had the prosecutor ask me [about the defendant] ‘Is this the kind of man that would rape and kill fourteen-year-old girls?’ And we went into that. And she uncrossed her legs.” The jury voted for death, unanimously.
By 1991, the year of Powell’s second trial, Grigson’s career was in full swing. An Austin prosecutor named Terry Keel hired him to testify against Powell. But before he could utilize Grigson’s expertise, Keel had to convince a new jury that Powell—who hardly looked the part, now wearing a suit and neatly combing his short hair—had indeed killed Ablanedo. This was difficult partly because the memories of witnesses, over the course of ten years, had blurred. Sheila Meinert, Powell’s girlfriend, could only recall, “I was just totally in a panic, and my main memory is not of something I saw, but of what I heard, which was a deafening noise.”
But there was still enough damning evidence. The jury found Powell guilty again. To open the sentencing phase of the trial, Keel brought up a psychiatrist named Clay Griffith, who according to the Supreme Court order had not examined Powell himself. “Assume with me, Dr. Griffith,” Keel began, “that David Lee Powell in 1978 is living in Austin, Texas.”
“Assume that David Lee Powell has become fascinated with firearms… things such as firearm silencers, forward pistol grips, muzzle breaks, grenade launchers… ”
This type of hypothetical question, mixed with the use of perfect progressive verbs to tell a story rather than just relate facts, had become popular by 1991, as Eads’s 1983 performance influenced other prosecutors throughout the state. Keel continued in the present tense, as if he was a screenwriter laying out the climax of a film to his Hollywood agent:
“Assume that the police officer stops the car, turns on his red lights, and pulls the car over. Just moments later, as the car is leaving, he receives a broadcast that the passenger he had checked on is wanted… ”
Griffith responded, “My opinion is that he would be a continuing threat to society.”
And that was just the warm up. After Griffith, Dr. Grigson took the stand, having by then claimed to examine over 12,000 charged criminals, hundreds of them murderers. Keel launched into the hypothetical, with more harrowing detail than he had used with Griffith, adding, with the flair of a Capote: “The officer,” again in the present tense, “tries to struggle and gets up a little bit, and David Lee Powell shoots him again, and the officer rolls down an embankment and lays there.”
The defense rebutted with two experts who had researched Grigson’s work empirically and found that the vast majority of defendants he testified against never went on to commit violent acts. Perhaps the hard data would counter Grigson’s confidence.
It didn’t. And during closing arguments, something else in the courtroom happened that made much of the testimony a secondary matter.
In later appeals, Powell’s lawyers narrated the scene as well as any true crime writer. “Austin police officers in uniform suddenly began to stream into the small semicircular courtroom,” they wrote. “They passed around the metal detector. A woman from an office being used by the District Attorney placed a strip of purple tape over the badge of each officer as a sign of mourning. The parade continued until every seat [in] the courtroom was filled, and then officers began to sit on the floor between the defense counsel and the jury box.” After ten hours of deliberation, the jury sentenced Powell to death again.
According to news reports, as the sentence was read, Powell’s mother cried out. Powell looked back and then placed his hand on his forehead. Bruce Mills, who had first discovered Ablanedo and later married his widow, Judy, said to a reporter, “Relief would be the word to describe it.”
Powell’s defense attorneys argued that the officers lined up around the courtroom had created a “lynch mob atmosphere,” but the appeals courts, which uphold most convictions and death sentences, were not convinced.
They were convinced instead by one technical detail about the trial: In addition to future dangerousness, juries also must decide whether or not the crime itself was deliberate. It is a foregone conclusion most of the time that the crime is deliberate, since in order for it to be murder there must be “intent,” but the jury must still technically answer it, and in this trial, they simply had not done so.
It seems farcical that so much time and effort by so many people would be invalidated on this one issue, but such is the legal framework within which the death penalty is administered in the United States. All the threads must be intricately woven together with no mistakes, and now one small thread was frayed. The Texas Court of Criminal Appeals sent Powell’s case back for a third trial.
So again came the news articles describing outrage amongst the victim’s family. Again came the complaints of police officers that their colleague’s killer was playing the system to his advantage. Again came the reports that the District Attorney’s office would prepare for yet another trial.
The Final Trial
As the years passed, and his lawyers appealed through the courts, Powell lived quietly on death row. He still could not speak about his case, because phone calls and personal visits are often monitored on death row.
He worked in the garment factory, loaned books to inmates, and taught several of them to read. He challenged another inmate to take up juggling. One of Powell’s friends remembers a visiting day when she saw a recreation yard full of convicted murderers struggling to toss hackie sacks and catch them in rhythm. That friend described Powell physically as “tall and lithe, like a willow.”
In 1999, Powell entered a courtroom in Austin for the third time. The stringy drug addict of 1978 had turned into a quiet man in a brown suit, now forty-eight years old. His once-shocking mass of hair had turned grey, which he wore parted with bangs that gave a slight hint of his haircut as a high school student.
The trial would only be for sentencing, because the higher court had not reversed his guilty verdict. The defense strategy would be to show that the pleasant and peaceful personality of Powell’s youth had reemerged over the course of his two decades on death row. He had already arguably proven that he would not kill again—something he easily could have done, working with scissors in a garment factory. The future had come and gone.
By 1999, Dr. Grigson had been expelled from the American Psychiatric Association. They had determined that his claims of “one hundred percent certainty” that a defendant would be dangerous in the future were breaches of professional ethics. Though he and other forensic psychiatrists still answered hypothetical questions when called, defense lawyers now had more credible rebuttals, so prosecutors asked them to testify less and less often.
So, in order to show that Powell was still dangerous, the prosecutors reminded the jury about the callousness of the murder, the shoot-out and the grenade, the methamphetamine in the backpack. They played a tape of Ablanedo’s cries, which had been recorded from the police radio in bursts between static.
The Texas legislature had originally created future dangerousness to function as a safety valve to save a killer who was otherwise sympathetic to the jury. It’s hard to imagine they could have predicted that the question would be asked decades after the murder, when the killer had lived nearly as long after the crime as before, and had been given the opportunity to almost completely transform.
Then they pulled out Powell’s prison records. In 1978, he spat on a corrections officer because he was unhappy with the television program. In 1988, he got in trouble for having an extra pair of socks and shorts. In 1990, he was written up for not having his bed made before 6 a.m. That same year, he kicked a door when he was not allowed to call his lawyer.
In response, Powell’s attorneys presented a wide-screen narrative arc of a genial farm boy overwhelmed by the 1970s drug culture of a big college town, who developed long latent mental problems with drug-use, and acted out in a single tragic moment, only to return to his earlier personality while in prison. They found prison officers to tell the jury about Powell’s peaceful demeanor and general lack of disciplinary problems. His friends testified that he had taught inmates how to read. The David Powell of the 1970s, they argued, and the David Powell of the 1990s were two different men.
The Texas legislature had originally created future dangerousness to function as a safety valve to save a killer who was otherwise sympathetic to the jury. It’s hard to imagine they could have predicted that the question would be asked decades after the murder, when the killer had lived nearly as long after the crime as before, and had been given the opportunity to almost completely transform. They certainly would have never expected men like Dr. Grigson to develop such an expertise in trial testimony, for prosecutors to develop virtuosic methods to elicit predictions of future dangerousness, for defense attorneys to compile elaborate life histories, and for, in the end, the issue to become the linchpin for a grand battle over a single human life.
After several hours behind closed doors, the jury came back without a clear decision on whether to sentence Powell to death. The judge could choose whether to call a hung jury, which would result in Powell being given a life sentence, or ask the jury to continue debating until it all agreed on life or death. For reasons still unknown, he sequestered them and said they had to come to a unanimous decision. The future dangerousness issue kept them deadlocked late into the night. After nearly fourteen hours, they reached 12-0 in favor of death.
The case again went to appeals. An Austin-American Statesman reporter named Tony Plohetski published a front-page feature story on Powell called “A 30-Year Wait for Closure.” He described how the victim’s mother, Betsy Ablanedo, “has spent the past three decades picturing the drive to Huntsville, where Texas houses death row inmates” and “imagines sitting down, family members beside her, looking through the glass window and seeing Powell strapped to a gurney.”
But after thirty years, Plohetski’s subjects were resigned, since Powell “may now have a fourth trial.”
As he waited for the courts to consider his appeals, Powell completed his third decade and became one of the longest serving death row inmates in Texas. Six months after his last trial in 1999, following an escape attempt by other inmates, Texas moved its death row to the Polunsky Unit in Livingston, Texas, a collection of sterile pods near the Louisiana border, past a pine forest and large lake. Now, they were basically held in solitary confinement, with a greasy diet consisting mostly of pork. They had recreation either alone or with one other inmate. Powell would live here for roughly a decade. “It’s a lonely place,” one inmate, Preston Hughes, told me recently. “Even though we talk and laugh amongst each other, I know people still feel lonely.”
While Powell lived alone in a cell for twenty-three hours a day, his new lawyer, Richard Burr, wrote a petition for clemency. The document reads at times like a character referral for a job, at others as an obituary for someone who is not yet deceased. Burr solicited letters from inmates, one of whom wrote that whenever Powell walked into the room, “it’s like someone turned the light on.” Another wrote, “David is one of the people that I am so glad I’ve met because he has made my life richer. Every time I’d seen him, I’d go back to my cell and try to read more.”
Burr also went back and interviewed several jurors from the third trial. He found one, named Gayle Windle, who told him, “several jurors believed that Mr. Powell would not be dangerous if he stayed in prison.” The problem was that at the time Texas did not have an option to sentence someone to life without parole. A “life sentence” meant that after forty years he would be eligible for parole (By then, Powell would have been 88 years old). “If there has [sic] been life without parole, I believe that several jurors would have voted ‘no’ on the future danger question,” Windle said. “I know I would have.”
Burr still seems angry when he discusses the efforts of prosecutors to paint Powell as likely to kill again. “Future dangerousness is bogus,” he told me recently. “It serves as a vehicle for the prosecutor to demonize the defendant.” In 1983, the Supreme Court had decided in the Barefoot case that prosecutors and psychiatrists like Dr. Grigson could say whatever they wanted and juries would sort it out, he explained, but “they haven’t done a very good job of sorting it out.”
“It’s based on fear,” he said. “The prosecution interjects fear into the courtroom and says ‘It’s okay for you to be afraid. This is a scary guy.’ There is no way to counter fear. Fear is invulnerable to information.”
Widely respected amongst death penalty defense lawyers, Burr had helped represent Timothy McVeigh in the Oklahoma City bombing trial. He told me the experience was hugely important to his understanding of how crucial it is for defendants to reach out to the family members and friends of the victims, since in that tragedy there had been so many victims.
He believed that Powell might have saved himself from being seen as a future danger in his third and last sentencing trial if he had asked his lawyers to reach out to the Ablanedo family sooner, gaining their trust, and then testifying in his own defense. “The genuineness of defendants’ remorse only works if there is a relationship between [defense] lawyers and victims,” he told me, explaining that this would have been the only way to overcome the finding of future dangerousness.
“For five years, I lived variations of the events of that night every night as nightmares. Every night I jolted awake in panic, gasping for breath, heart pounding wildly, from a bunk drenched in sweat. When I killed Officer Ablanedo, I killed some part of myself. I have known no peace since.”
Unlike Powell’s previous lawyers, Burr encouraged Powell to break decades of silence and write a letter to Ablanedo’s widow, Judy, and Bruce Mills, who had discovered his partner bleeding on the street thirty years before.
“I am infinitely sorry that I killed Ralph Ablanedo,” Powell wrote:
For thirty-two years, Judy and Bruce Mills had watched three trials, years of appeals, the testimony of character witnesses and investigators, the sympathetic analysis of some doctors and the damning analysis of others, the tactics of at least ten attorneys, and an endless debate over Powell’s future dangerousness. Mills went on to a long career in the Austin Police Department, much of it in the homicide division, and he too had to relive the night of the murder throughout his life. “I can envision everything being replayed” Mills told an interviewer after Powell’s verdict was overturned the first time, “it brings it back like it happened yesterday.”
Bruce Mills told me he never expected the process to take so long, and that the “yo-yo effect” of going to so many trials, worrying about the appeals process, and wondering if he would ever be released took a tremendous toll on Judy and the Ablanedo family. “But then at the end, for him to say ‘I’m reformed’,” Mills said. “That was the hardest part of the whole thing.”
“There’s the anxiety: What if he’s found not guilty? What if there’s a technicality? There’s a fear that somehow he would be out for time served and be released. That was the ultimate fear of the family. That would have been terrible, a travesty to justice.”
He never took Powell’s expressions of remorse seriously. When Powell’s lawyers approached him about talking to the man who had killed his partner, he told them “The answer is no.” “It’s what attorneys are paid to do,” he said, “but it was still frustrating.” The letter and Burr’s actions were just “a last ditch effort to get a stay of execution.”
Burr told me that by the time he took the case, after three trials, it was too late to drastically alter the narrative of Powell’s dangerousness. The only way things might have turned out differently, he explained, would have been if the Ablanedo family agreed to communicate with Powell before his third trial. But Mills makes it clear that they would have never been interested.
Executions in Texas are held at the “Walls Unit” in Huntsville, the state’s first and flagship prison, so nicknamed for the tall brick fortifications that are no longer necessary but give the impression of a castle. The execution is a closed affair to all but a few loved ones of the victim and the condemned, but anyone can stand outside, and on the day of Powell’s execution in June 2010 over a hundred police officers from Austin filed out of a chartered bus and stood at attention in the hundred degree heat. Few had been alive, much less police officers, when Ablanedo was killed. A group of older, retired officers followed behind them on motorcycles, wearing black T-shirts with the words “Journey to Justice” in red, white, and blue.
Across the street, over fifty protesters sat under umbrellas, holding up pictures of Powell and hand-written signs reading, “Stop Executions.” A friend who had stopped in Huntsville that day described them as “what seemed like a usual death watch crowd, old hands. Even the posters they held seemed old and generic.” Anti-death penalty advocate Gloria Rubac, a perennial presence at executions, occasionally addressed the crowd with a bullhorn, updating them on last minute appeals and accusing the Governor, Rick Perry, of murder.
In the preceding months, Powell’s supporters had created a website and a series of short videos, pleading with supporters to contact Austin’s District Attorney or the local newspaper and sign a petition calling for his sentence to be commuted to life in prison. Many inmates sentenced to death are given a last-minute push by supporters, especially in high profile cases like those of Gary Graham, who had the support of the Black Panther Party and Karla Faye Tucker, whose redemption narrative was widely publicized by Christian leaders. Powell’s media push, on the other hand, came mostly from people who had met him, a personal network built slowly over the decades of his incarceration.
Execution days, although a spectacular conclusion to a long legal process, are actually mundane, routine affairs. This was the thirteenth of the year. News stations and papers duly reported the last meal of eggs, pork chops, chicken, and a vanilla shake, and arrived on the scene to report the two competing narratives of the rightness and wrongness of executing Powell, which were no longer being told by lawyers but rather by protesters and police. Powell granted an interview, but instead of coming down strongly on one side or another, he asked, “How much pain is enough to make up for irreparable harm?”
When Powell was taken to the execution chamber, the prison left his belongings in three orange mesh bags on the street corner outside, as they had for every other “executed offender,” as the official terminology puts it. These were the only tangible remains of the last 32 years of his life, and included his letters, legal documents, a fan, shower slippers, a water heater, a desk light, a world atlas, two pairs of black-framed glasses, watercolor paints, frozen beef tips in gravy, a silver packet of Folgers coffee, amino acid tablets, kosher variety kugels, frozen chicken breasts, instant pinto beans, sardines, spam, ramen, rice, artificial tears, razors, ear plugs, a calculator, colored pencils, cream cheese, and frozen chili. A tag on each bag listed Powell’s name and the reason for confiscating his belongings: “Departure.”
Powell’s friends remember waiting endlessly, then walking into the chamber. They saw Powell through plexiglass, strapped to a gurney just four feet away.
“He didn’t say anything.” Ablanedo’s sister, Irene, told a writer for the Austin police department’s in-house newsletter. “I stared at him and he stared at me.”
Reporters for the Austin American-Statesman said that Powell “kept his eyes locked on members of officer Ralph Ablanedo’s family.”
He could never have “locked” his eyes on anything, Powell’s friends later told me angrily, because he was not wearing his glasses and was practically blind. They speculated that he must have been searching the blur in front of him for a familiar face. If the 27-year-old David Powell had ever presented a continuing danger, the nearly sixty-year old man struggling to see without his glasses was, they felt, now someone else entirely.
He had ACE bandages wrapped around his arms all the way up to his fingers, his hair was now completely white and neatly parted. A microphone hung down from the ceiling.
Asked if he had a final statement, Powell remained silent.
Maurice Chammah is a writer from Austin, Texas who was a 2011–12 Fulbright fellow in Egypt and plays in the band Mother Falcon. His reporting has appeared in the New York Times, the Texas Tribune, and Rolling Stone Middle East, and can be found at mauricechammah.com.