Litigating for Life

    It has been almost six years since a colleague in San Antonio called me to ask if I would handle a death penalty matter.   The client, Steve Rodriguez, had killed a woman (Agnes Herden) in the course of a burglary in 1990.   He pleaded guilty so the only issue for the jury to decide was whether to impose a death sentence or imprison him for life.  The jury chose death.  His sentence was automatically appealed and he lost the appeal.  After the appeal a petition for a writ of habeas corpus alleging that his lawyers did not represent him properly was also filed.   That too was denied.   A similar petition had been filed in Federal court.   While it was pending the Supreme Court held that it was unconstitutional to execute a mentally retarded offender.   Because Rodriguez had a history of I.Q. scores below 70,  a petition needed to be filed back in State court at which a determination could be made with respect to the issue of mental retardation.   My colleague asked me to get involved at this point.  It was unclear whether I would receive any compensation and I had less than thirty days to draft the petition addressing the mental retardation claim.  I agreed to do it.
    About a year later the issue finally came up for hearing.   Both the state and the defense agreed it was a close question.  Given the horrible crime, it was no surprise to me that the courts decided against me.  After this stage of the process was over, it was time to return to Federal court and pick up where we left off before the digression back to the state courts.  I noticed that my colleagues had not raised an issue concerning the jury instructions at use during the first trial.  Although it was too late to raise the issue at this point, I decided to raise it in any event.   Much to my surprise the Federal judge hearing the case decided to override the procedural problem and ruled that due to this instructional error Mr. Rodriguez should get a new sentencing trial.
    I was sure the State would appeal this decision and win.  Once again I was surprised when the State agreed to give up its appeal of the Federal judge's decision if I gave up my appeal on the mental retardation issue.  I agreed and our case was sent back to San Antonio for trial.  Michael Gross, a well respected lawyer in San Antonio, with substantial death penalty litigation experience, was appointed to be my co-counsel.
    On January 11th we began the lengthy process of selecting a jury for a death penalty trial.   Once again I was surprised.  The prosecutor was interested in agreeing to life sentence.   She did not want my client to simply get a life sentence under the old law applicable to his case because this would result in his immediately being eligible for parole.    Although as a practical matter no one who was once on death row is ever going to get paroled, this allowed for some room for negotiation.  Ultimately a plea bargain was reached whereby the original crime was broken out into several crimes.  This would normally violate the Double Jeopardy clause, but we agreed to waive this double Jeopardy violation in the plea agreement.   On Monday January 14th the case was resolved.  Steve Rodriguez avoided execution and will remain in prison for the rest of his life.  In the world of death penalty litigation, we consider that a win.  Nevertheless the tragedy of Agnes Herden's murder left wounds that will not heal even over a lifetime of imprisonment.

Comments

[Katerina Smith]

I'm still not quite sure whether the death penalty or life sentence is more appropriate for this man. I have forgiven him, & I pray that he accepts Jesus into his heart.
Agnes Herden was my grandmother. My father was the 1st person on the scene & found his mother in her bed.
By God's hand, I was in San Antonio while all this negotiation for Mr Rodriguez was going on in January. My own mother had died just before Christmas, & my father was a huge part of me getting through her death. I think I also was a distraction for him to focus on.
The whole family was very agitated that this was surfacing again, but then relieved that my father did not have to testify again. I'm especially very thankful for that.
Thank you for your informative blog.

Katerina Smith

[Nathan Herden]

I have forgiven this man and pray for him, I am one of the family members, as well, Nathaniel Joseph Herden son of Matthew Zuehl Herden, I pray for this mans soul in hopes that when he does pass that he finds redemption in the light of jesus christ our lord and savior.