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A Brownsville man got a rare
ticket off death row Monday, trading his death sentence for 20 years in
prison thanks to a deal struck with prosecutors.
Under the terms of the agreement, Paul Colella, 34, pleaded guilty to 2
counts of murder and the more serious charge of capital murder was
dropped. He accepted the 20-year sentence and agreed not to request an
early release, meaning he will be eligible for release in September
2012.
The Colella case frequently has been cited by defense attorneys as
emblematic of the problems with capital punishment in Texas.
It involves an indigent defendant who swore he was innocent, a trial
judge who refused to provide the most basic aid to the defense,
allegations that prosecutors withheld evidence and allowed witnesses to
lie, and an appellate attorney who prepared an inadequate brief that
the Texas Court of Criminal Appeals rejected without even reading
because it was filed late.
The plea bargain that finally put an end to the case was negotiated in
June just days before a federal judge was to hear evidence on the
allegations of prosecutorial misconduct and ineffective assistance by
defense counsel. It was approved by the court Monday.
"You draw whatever conclusions you wish" about the timing of the plea
bargain, said Andrew Hammel, one of Colella's current attorneys. "We
fully anticipated being able to prove all or most all of those
allegations during the hearing."
Cameron County First Assistant District Attorney Karen Betancourt said
it was the Texas attorney general's office that conceded in federal
court that Colella's trial defense was inadequate.
She referred questions about that decision to the AG's office, but a
spokesman there was unable to comment on the case Monday.
Betancourt also noted that U.S. District Judge Filemon Vela did not
mention prosecutorial misconduct in the 19-page order he wrote
overturning Colella's death sentence in June and remanding the case
back to Cameron County for a new sentencing hearing.
Betancourt said the plea bargain was the most effective way to settle
such an old case.
"It was the passage of time," she said. "The ability to retry a case
like that becomes extremely difficult. It's a combination of many
things, missing witnesses, difficulty in relocating evidence."
Other capital law experts said the timing and leniency of the plea
bargain indicate there were more problems with the case than just
hard-to-find witnesses.
"That's a red flag," said University of Houston Law School professor
David Dow, who also represents capital defendants on appeal. "I think
part of the explanation for the apparent dramatic difference between
the sentence he received at trial and the sentence he received now is
the state was aware there were major constitutional violations at the
time of his trial."
Colella was sentenced to die for the 1991 murders of two men on South
Padre Island. Cameron County prosecutors claimed Colella shot the men
in a jealous rage because he believed -- wrongly -- that they had raped
his wife.
>From day one, Colella insisted he was innocent. His claim was
supported by a bus station attendant who testified Colella was in
Victoria, some 240 miles from the crime scene, around the hour of the
murders. Colella was convicted largely on the testimony of a man who
knew Colella and said he saw him ambush the men.
Repeatedly during Colella's 1992 trial, defense attorney Abel Limas –
who is now a state district judge in Cameron County -- asked for
another lawyer to help with the case. He also asked for an investigator
and a social worker or psychologist who could testify on Colella's
behalf during the sentencing hearing. The trial judge refused all of
the requests.
Further hampering Limas' ability to adequately prepare for the case was
the fact that he did not get paid for his work until 2 years after the
trial, when he received $9,000.
"That is just an outrage," said Hammel, co-director of the University
of Texas Capital Punishment Clinic.
Colella's fortunes did not get much better at the beginning of the
appellate process. The Texas Court of Criminal Appeals rejected his 1st
appeal, even though 2 of its members believed the evidence showed
Colella likely was innocent.
Then, the attorney appointed to represent Colella on his second round
of appeals -- a complicated area of constitutional law known as the
writ of habeas corpus -- filed just a 9-page brief on Colella's behalf.
The lawyer also filed it late, and the Court of Criminal Appeals
rejected it without even reading it.
Such briefs typically are hundreds of pages in capital cases. The
supplemental brief filed in federal court that won Colella the new
sentence totaled 212 pages and contained more than 1,000 pages of
supporting exhibits. The brief was prepared by Hammel, Susan
Karamanian, an associate dean of comparative legal studies at George
Washington University Law School, and Mike Powell, a partner with
Locke, Liddell & Sapp in Dallas.
"We were the first to do any investigation" in this case, Hammel said.
Among the allegations of prosecutorial misconduct raised in the most
recent court filing is a charge that prosecutors failed to turn over to
the defense the original death certificate, which placed the time of
death at about 6 a.m., when Colella was in Victoria. At trial,
prosecutors presented witnesses who testified the time of death was
much earlier in the morning, giving Colella time to commit the crime
and make the 240-mile drive.
In Colella's most recent appeal, defense attorneys included affidavits
from two jurors, one who said he would not have voted to convict had he
been aware of the evidence, and another who said she would have voted
against the death penalty, Hammel said.
It has become unusual for someone to be released from Texas' death row
by any means other than execution.
Between 1974 and 1993, 179 people were taken off death row, according
to Texas Department of Criminal Justice records. The vast majority of
those had their sentences reduced or their convictions overturned. But
in the last 10 years, only 13 people have had their sentences reduced.
The last was David D. Ovalle of Navarro County, whose sentence was
reduced from death to life in prison 3 years ago because the trial
judge told the jury it could not consider trial evidence when
contemplating a sentence.
Hammel said the reluctance of the Court of Criminal Appeals and the 5th
U.S. Circuit Court of Appeals to side with defendants in capital cases
prompted him to advise Colella to take the plea bargain.
"You have to take the reality of the system into account as an
attorney," he said. "If you don't, you are playing with your client's
life."
(source: Houston Chronicle)