16 February 2007
Death penalty / Legal concern
Donald Anthony Miller (m), white, aged 44
Donald Miller is scheduled to be executed in Texas on 27 February 2007. He
was sentenced to death in 1982 for the murder of Michael Mozingo earlier
Donald Miller was 19 years old at the time of the crime. He has been on
death row for nearly 25 years.
Michael Mozingo and another man, Kenneth Whitt, were robbed and shot dead on
2 February 1982. Three men were charged with the crime: Eddie Segura, Danny
Woods and Donald Miller. Before Donald Miller's trial, Eddie Segura pleaded
guilty to aggravated robbery and became a key witness against Donald Miller.
Segura was sentenced after Miller's trial, to 25 years in prison.
Before Miller's trial, Danny Woods, who admitted to shooting Kenneth Whitt,
pleaded guilty to murder and was sentenced to life imprisonment. Woods did
not testify at Miller's trial. Donald Miller, according to his trial
attorney (now deceased), faced a death penalty trial after he refused a plea
bargain of a life sentence in return for a guilty plea.
Following an evidentiary hearing in 2002, a federal district court judge
ruled in 2004 that the prosecution had withheld exculpatory evidence at
Donald Miller's trial, in violation of the US Supreme Court's 1963 ruling,
Brady v. Maryland. The federal judge found that the withheld evidence was
material to the question of sentencing: that is, the sentence might have
been different if the evidence had not been suppressed.
The evidence in question related to statements made by witnesses prior to
the trial. The federal judge noted that pre-trial statements made by Ray
McCall, who was the brother of Eddie Segura's then-girlfriend, were
inconsistent with his trial testimony against Miller and could have been
used by the defense to undermine McCall's credibility. At the 2002
evidentiary hearing, Miller's trial lawyer had described McCall's testimony
as ''the most devastating testimony in the whole trial'' in that it depicted
Donald Miller as a cold-blooded and remorseless killer. The federal judge
also noted inconsistencies in the statements of another witness, Archie
Morris, who was Ray McCall's grandfather. Prior to the trial, Morris had
told investigators that he only owned a .22 caliber handgun and had not
given it to Donald Miller. At the trial, however, he testified that on the
day of the crime Miller had borrowed from him the .38 caliber gun used in
In addition, the state suppressed affidavits from four people who did not
testify at the trial. Robert White, for example, stated that Danny Woods had
told him that after one of the victims had been killed with a shotgun,
''either Danny or the guy with Danny then reached down into his boot and
pulled a .38 pistol and shot the other guy when he started to run''.
Miller's appeal lawyers have argued that this was important because it was
established at trial that Miller was not wearing boots at the time of the
murders. White's affidavit also states that the day after the murders, Woods
had denied that Miller was involved. The federal judge found that the
affidavits indicated that Woods may have killed both victims and that Segura
was armed at the time.
On appeal to the US Court of Appeals to the Fifth Circuit, the state argued
that District Court's decision was wrong, and Miller's appeal lawyers
countered that the suppressed evidence not only went to the question of the
reliability of the sentence, but also to the question of Miller's guilt. The
Fifth Circuit panel rejected Miller's arguments about guilt and overturned
the District Court's ruling on sentencing. One of the three judges
dissented, arguing that ''the various pieces of evidence, taken together,
could have raised a reasonable doubt in a juror'' when deciding whether to
vote for a death sentence. On McCall's testimony, the dissenting judge noted
that although McCall was ''generally impeached on cross-examination as a
dishonest criminal who was not always truthful with the police during the
witness is generally not truthful and specific evidence that he gave
inconsistent statements with respect to the subject of his crucial
corroboration of Segura's account of the crime, which portrayed Miller as a
leader in the killings, so weakening his testimony could have cast doubt on
whether Miller planned the killings and was an actual shooter''. Similarly,
testimony had provided ''critical corroboration . . .
linking Miller to one of the murder weapons'' and yet the credibility of his
testimony had gone unchallenged at the trial.
In Texas, a jury can only pass a death sentence if it unanimously agrees
that the defendant would likely commit future criminal acts of violence if
allowed to live, even in prison (the ''future dangerousness'
question). The dissenting Fifth Circuit judge noted that undermining the
crime could have affected the jury's finding that he posed a future danger.
A study published by the Texas Defender Service in
2004 concluded that predictions of ''future dangerousness'
death penalty system were wrong in a majority of cases, and that ''basing
capital sentencing decisions on predictions of future dangerousness is
unjustifiable - and not only because a system that so allots punishment in
effect punishes defendants for offences they may or may not commit, thus
violating the fundamental legal principle that the accused is innocent until
proven guilty.'' During his nearly 25 years on death row, Donald Miller is
reported never to have been disciplined for violent or aggressive behaviour
towards other inmates, guards, or anyone else. He was reportedly once
accused of assaulting a guard, but was cleared of this by the prison system.
In 1995, a US Supreme Court Justice wrote that executing a prisoner who had
been on death row for 17 years - eight years less than Donald Miller has
suffered - arguably negated any deterrent or retributive justification for
the punishment. In 2002, in the case of an inmate who had been on death row
for about 27 years, another Justice wrote of this ''extraordinarily long
confinement under sentence of death, a confinement that extends from late
youth to later middle age.'' If executed, the Justice stated, the prisoner
would have been ''punished both by death and also by more than a generation
spent in death row's twilight. It is fairly asked whether such punishment is
both unusual and cruel'', in violation of the US Constitution.
Since the USA resumed judicial killing in 1977, there have been 1,062
executions, of which 383 (36 per cent) have been carried out in Texas. Texas
has executed nearly four times as many people as the next leading death
penalty state, Virginia. Although there are signs that the USA is slowly
turning against capital punishment (see USA: The experiment that failed: A
reflection on 30 years of judicial killing, 16 January 2007,
the rate of judicial killing in Texas remains high.
In 2006, Texas carried out 24 executions, five times as many as the next
highest state total. Four of the five executions in the USA so far in 2007
have been carried out in Texas. Governor Perry's governorship of Texas has
seen 144 executions in the state (since 2001). There were 152 executions in
Texas during the five-year term of his predecessor, George W. Bush.
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:
- expressing sympathy for the family and friends of Michael Mozingo and
Kenneth Whitt, stating that you are neither seeking to condone the manner of
their deaths in 1982 nor to downplay the suffering caused;
- opposing the execution of Donald Miller for the murder of Michael Mozingo;
- expressing concern that the prosecution suppressed evidence at his trial,
and noting that two federal judges have concluded that the evidence could
have made a different to the sentencing outcome;
- noting that despite doubts about whether Donald Miller was the ringleader
in the crime, as the prosecution depicted, he would be the only defendant to
be executed, raising questions of arbitrariness;
- noting that the jury's determination that Donald Miller would be a future
danger to society, even in prison, has not been borne out by his past 25
years on death row;
- calling on the Governor to stop this execution and do all in his power to
bring about clemency.
Governor Rick Perry
Office of the Governor
P.O. Box 12428
Austin, Texas 78711-2428, USA
Fax: 1 512 463 1849
Salutation: Dear Governor
PLEASE SEND APPEALS IMMEDIATELY.
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with this appeal.
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END OF URGENT ACTION APPEAL