BEFORE THE

TEXAS BOARD OF PARDONS AND PAROLES

___________________________________________

In re DAVID LEE POWELL,

TDCJ No. 000612,

Applicant.

___________________________________________

________________________________

APPLICATION FOR
COMMUTATION OF DEATH SENTENCE
________________________________

Richard Burr

Texas Bar No. 24001005

2307 Union Street
Houston, Texas 77007

Telephone (713) 628-3391

Facsimile (713) 893-2500
E-mail: dick@burrandwelch.com

Counsel for Applicant

 TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MR. POWELL’S PRESENT STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

PRIOR LEGAL PROCEEDINGS

A. Course of Prior Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

GROUNDS FOR COMMUTATION OF SENTENCE

I. For More than Three Decades, David Powell Has Lived an Exemplary Life
on Death Row, Embodying and Living Human Virtues as Few of Us Do. . . . . 10

A. Death Row Inmates’ Accounts of Mr. Powell . . . . . . . . . . . . . . . . . . . . . 11

B. Free World Citizens’ Accounts of Mr. Powell . . . . . . . . . . . . . . . . . . . . 25

II. Mr. Powell Is, Without Doubt, No Longer a Future Danger . . . . . . . . . . . . . . . . 34

III. Mr. Powell Would Not Have Been Sentenced to Death Had the Alternative
Sentence to a Death Sentence Been Life Without Parole . . . . . . . . . . . . . . . . . . 38

MR. POWELL’S REMORSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

i
 INTRODUCTION

David Powell was 27-years-old when he was first committed to Texas’ death row in the

fall of 1978 for the killing of Austin Police Officer Ralph Ablanedo. Mr. Powell is 59-years-old

now and has been on death row for nearly thirty-two years. After a difficult period of adjustment

in the first few months he was on death row – he became very depressed, quit eating, and was

sent to Rusk State Hospital – Mr. Powell became a model prisoner and extraordinary human

being. For more than three decades, he has lived an exemplary life on death row, embodying and

living human virtues as few of us do. It is this extraordinary record that calls for the

commutation of Mr. Powell’s death sentence to a life sentence.

Mr. Powell has made invaluable and innumerable contributions to the betterment of many

other people’s lives, both in and out of the Texas Department of Criminal Justice (hereafter,

“TDCJ”). He has for decades been a powerful force for good:

• he has helped scores of other inmates on death row in as many ways as there are people

he has helped,

• he has taught and mentored numerous death row inmates,

• he has lived with a positive attitude and demeanor and has inspired many others to do the

same,

• he has made peace between inmates in conflict and has protected correctional officers

from assault by other inmates,

• he has expressed genuine concern for the victims of death row inmates’ crimes and has

felt and expressed deep remorse for the victim and survivors of his own crime,

• he has been a good friend to many, and

1
• he has inspired many people to live their lives more positively, with greater compassion

for others, and to be of service to others.

Because of who he is, David Powell is beloved by many on death row and by many in the

world. He is seen as a human being of immense value, whose execution would deprive the world

in and outside of TDCJ of an unwaveringly good person who does considerable good every day

of his life. Ever mindful of the immense hurt and loss he inflicted on Officer Ralph Ablanedo

and his family, Mr. Powell has lived his life on death row with profound humility and with an

abiding sorrow. He knows that he can never make amends for what he did, and he knows that he

will carry the shame and burden of what he did the rest of his life. He seeks only to live out his

life to its natural conclusion, acutely mindful that he did not allow Ralph Ablanedo to do that. It

is with this humility and perspective that David Powell asks for the measure of mercy that this

Board is authorized to recommend to the Governor.

While the primary measure of David Powell’s worthiness of clemency is the gauge of him

as a human being, there are additional reasons to recommend clemency. Mr. Powell’s life since

the killing of Ralph Ablanedo has served as a stark and unambiguous refutation of the prediction

that he would be dangerous to others in the future. The prosecution urged each of Mr. Powell’s

three juries to base their prediction on the facts of the crime – an unprovoked killing of a police

officer with an assault rifle to avoid arrest for the possession of a quantity of illegal drugs – and

the threat that Mr. Powell might resume his drug-using-and-dealing activities, and the dangers

posed by such activities, if he ever got out of prison. The second and third juries were persuaded

to discount Mr. Powell’s growing record of human virtue in prison in lieu of this. In the face of

the life Mr. Powell has lived for now more than three decades, the knowledge that he will never

2
get out prison, and the peaceful, positive, compassionate, and helpful life he continues to live, the

unreliability of the prediction that he is a future danger must now be acknowledged. The

consequence of that acknowledgment is that Mr. Powell should no longer be seen as eligible for

the death sentence since future dangerousness is a statutory prerequisite to the imposition of the

death sentence.

Finally, there is additional reason to recommend commutation because the alternative to

the death sentence for Mr. Powell in all three of his trials was a parolable life sentence, not life

without the possibility of parole (LWOP). Recent interviews of several members of Mr.

Powell’s third jury have revealed that one juror would not have voted for death for Mr. Powell

had the alternative sentence been LWOP. This is consistent with the experience of other capital

juries. All the available data has shown that when the alternative to a death sentence is life

without the possibility of parole, jurors tend to sentence people to death much less often. That

has certainly been the trend in Texas where the death sentencing rate has gone down by 40%

since 2005 when LWOP became the alternative to a death sentence in a capital prosecution.

All of the reasons for commuting Mr. Powell’s death sentence thus coalesce. He is an

indisputably good person in prison, as good as any person could be, having made innumerable

positive contributions to people in and out of TDCJ. He indisputably does not pose any risk of

danger if he is allowed to live out his life in prison. And, had his most recent jury been given the

option of sentencing him to live out his life in prison, the jury would not have been unanimous

for death, and for that reason, Mr. Powell would have been sentenced to life.

3
 MR. POWELL’S PRESENT STATUS

Mr. Powell is an indigent man on Texas’ death row. He is housed at the Polunsky Unit,

Livingston, Texas. His TDCJ number is 000612. The state official responsible for confining and

executing Mr. Powell is Rick Thaler, Director of the Texas Department of Criminal Justice

Correctional Institutions Division.

By order of the 167th Judicial District Court of Travis County, Mr. Powell’s execution is

set for June 15, 2010. See Appendix 1.

PRIOR LEGAL PROCEEDINGS

A. Course of Prior Proceedings

David Powell was first convicted and sentenced to death for the capital murder of Austin

Police Officer Ralph Ablanedo in 1978. The Texas Court of Criminal Appeals affirmed, Powell

v. State, 742 S.W.2d 353 (Tex. Crim. App. 1987), but the Supreme Court vacated his death

sentence. Powell v. Texas, 492 U.S. 680 (1989).

In 1991, Powell was again tried for capital murder, convicted and sentenced to death.1

On appeal the Court of Criminal Appeals affirmed the conviction but vacated the sentence and

remanded for a new sentencing proceeding, Powell v. State (Powell II), 897 S.W.2d 307 (Tex.

Crim. App. 1994), because the trial court failed to instructed the jury to consider the

deliberateness special issue. Id. at 318.2 Powell sought certiorari, alleging that he was entitled to

1
At that time, Texas law required a retrial of the entire case even if the reversal was only
for sentencing error.
2
By this time, Texas law had changed, no longer requiring a retrial of the entire case if the
reversal was only for sentencing error.

4
a complete new trial, but certiorari was denied. Powell v. Texas, 516 U.S. 808 (1995).

On February 22, 1999, Powell’s new sentencing trial began. 33 at 1.3 The jury answered

the special issues on March 6, 1999, and the court sentenced Powell to death. 43 at 18. The

Court of Criminal Appeals affirmed, Powell v. State, No. 71,399 (Tex. Crim. App. 2002)

(unpublished), and the Supreme Court denied certiorari. Powell v. Texas, 537 U.S. 1015 (2002).

Thereafter, Powell filed a state habeas application, and the Court of Criminal Appeals

denied it on the basis of the trial court’s recommendation. A timely federal habeas petition was

then filed. ROA 41-158 (dkt. 21).4 The magistrate judge recommended denial of the petition on

February 28, 2005, ROA 439-526 (dkt. 49), and on December 27, 2005, the federal district court

adopted in its entirety the magistrate’s report and recommendation and entered final judgment

against Powell. ROA 559-62 (dkt. 53, 54).

Thereafter, on July 16, 2008, the Fifth Circuit affirmed the district court’s denial of Mr.

Powell’s habeas petition, Powell v. Quarterman, 536 U.S. 325 (5th Cir. 2008), and the Supreme

Court denied Mr. Powell’s petition for writ of certiorari on March 23, 2009. Powell v.

Quarterman, 129 S.Ct 1617 (2009).

B. Statement of Facts

On the night of May 17, 1978, Mr. Powell asked his former girlfriend Sheila Meinert to

3
The transcript is referred to by volume number and page number, with “at” referring to
the page number. Exhibit volumes are a part of the transcript and are also referred to by volume
and exhibit number, using “at” to refer to the exhibit number. The clerk’s record for the third
trial, which includes the relevant filings in the case, is referred to by volume and page number,
with “CR” appearing between the volume and page number.
4
“ROA” is the Record on Appeal in the United States Court of Appeals for the Fifth
Circuit. For the convenience of the Board, whenever Mr. Powell refers to the record on appeal,
he will also note the docket number of the document in the federal district court’s record.

5
drive him from Austin to Killeen to conduct a drug deal. 39 at 43-44. Meinert knew that Powell

had an outstanding arrest warrant and a large quantity of drugs in the car. 39 at 45, 48. Powell

had with him a loaded .45 semi-automatic pistol in a holster, a loaded automatic rifle, a hand

grenade with tape wrapped around the spoon, and a back pack that contained 2¼ ounces of

amphetamines, which had a street value of $5,000. 35 at 172; 37 at 66-68; 39 at 52; 46 at Ex. 73.

There was a small glass pipe with traces of amphetamine powder on it in the car that Powell

could have used to inhale some of the speed as Meinert drove. 33 at 239, 241-42.

Austin police officer Ralph Ablanedo was riding alone in his marked patrol car when he

saw Meinert driving on East Live Oak without a rear license tag. 33 at 66, 223-24; 38 at 45-46.

Meinert pulled over to the curb and got out of the Mustang when she saw Ablanedo flash his

lights. 39 at 45-46, 52. Powell did not say anything to her. 39 at 52. Ablanedo checked

Powell’s driver’s license and asked the dispatcher to run a warrant check on him. He gave

Meinert a traffic ticket and allowed her to drive off with Powell before the warrant check was

completed because the dispatcher told him that her computer system was malfunctioning. 33 at

223-24; 39 at 45-46, 49-50. The dispatcher informed Ablanedo that Powell had a “possible

wanted” for misdemeanor theft shortly after the Mustang started driving away. 33 at 223-24. The

car only traveled half a block before Ablanedo signaled for Meinert to pull over again. 39 at 50.

Powell did not say anything to Meinert when she stopped the car. 39 at 52-53. She did not see

him reach for the carrying case where he kept his automatic rifle. 39 at 53.

Meinert claimed that she got out of the Mustang, walked towards Ablanedo’s car, then

“heard a very, very loud noise.” 39 at 51-52. She said that she had the “sense of all hell breaking

loose” and “just ran back to the car.” 39 at 54. She claimed, “I think I was just screaming and

6
crying and yelling and just scared.... So what did I do was, I think, just go forward in the car and

drive.” 39 at 54.

As Bobby Bullard happened to drive by Meinert’s and Ablanedo’s cars, he witnessed the

shooting of Ablanedo. 34 at 42-45. He saw Ablanedo get out of his car and walk toward the

Mustang. Id. He could not see the occupants of the Mustang, but he heard two or three single

shots fired from the Mustang and saw Ablanedo fall. 34 at 45. Shortly thereafter, Ablanedo got

up and “a bunch” of shots hit him. 34 at 46. Bullard saw Powell firing these shots from inside

the Mustang. 34 at 46. Bullard and others, who heard gunshots but did not see what happened,

came to Ablanedo’s aid. Ablanedo told these people that “a girl” shot him and then “a guy ... got

[him] with a shotgun.” 33 at 61, 203; 34 at 21, 203. Ablanedo died during surgery. 33 at 89.

After the shooting, Meinert drove away with Powell. 39 at 53-54. Another police

officer, Joe Villegas, spotted their car in a parking lot after he heard the report of the Ablanedo

shooting. As he pulled into the lot, a burst of automatic weapon fire came from the car. 34 at

80-81. Other officers joined Villegas, and gunfire was exchanged with the occupants of the

Mustang, but no bullets hit any of the officers or their cars. 34 at 83, 90-91, 99, 109-113, 118-

119, 131-134. Powell was identified as the person who fired some of the shots. 34 at 84, 131-

134. During the standoff, Officer Bruce Boardman saw a person he later thought was Powell

throw something at the officers. 34 at 118-119. Later, a live grenade was found on the ground

about 12 feet from the driver’s door of Villegas’ car. 33 at 134-35.

When the gunfire stopped, Meinert was apprehended in the parking lot. 34 at 111.

Powell was apprehended shortly thereafter. 34 at 168-170. Meinert denied shooting Ablanedo,

39 at 53-54, denied that she fired any shots in the exchange of gunfire in the parking lot, 39 at 54,

7
57, and denied throwing the grenade. 39 at 56-64.

In Mr. Powell’s third trial – solely a re-sentencing proceeding – defense counsel told the

jury in his opening statement that Powell was responsible for every aspect of the crime, that

Meinert had no part in it, and that because of this, he would not cross-examine most state

witnesses. 33 at 39. The defense was that Powell was no longer – in 1999 when the re-

sentencing proceeding trial was held – a future danger. The defense presented evidence that

Powell had been a good, law-abiding young person with great promise until he fell into drug

usage in college, which then led to chronic and debilitating addiction, drug dealing, a variety of

thefts, and increasingly irrational and erratic behavior, between 1970 and 1978. See generally 38

at 71-202, 39 at 74-158, 40 at 8-17. The defense also demonstrated that after the first few

months Powell was on death row in 1979, until the time of the trial, Powell had become a model

prisoner, see 40 at 33-113, and had developed positive relationships with a number of Texas

citizens. See 40 at 128-143, 41 at 9-40.

While Mr. Powell’s attorneys decided not to present Mr. Powell’s drug addicted state as a

mitigating factor in his third trial, it is important for the Board to understand the evidence of Mr.

Powell’s condition. This is not offered as a ground for clemency, but the evidence does help the

Board understand how Mr. Powell could have gotten into a situation that allowed him to kill

Officer Ablanedo. All of the following evidence was presented in Mr. Powell’s second trial.

Ms. Meinert testified that by the time of the shooting, Powell had become addicted to

drugs and had told her he was going to a doctor for help. 19 Tr2 150.5 His behavior was

progressively becoming more extreme, 19 Tr2 159, including times that, by his account, he could

5
References are to the transcript of Mr. Powell’s second trial.

8
not drive his car because he was hallucinating. 19 Tr2 160.

Others confirmed that during the two years that preceded the shooting of Officer

Ablanedo, Mr. Powell appeared to have a serious drug problem or mental illness. In 1976, an old

college friend, David Van Os, saw Mr. Powell and had the impression that he was using speed.

33 Tr2 356. He testified that Powell had an unkempt appearance and a “hyperactive edginess.”

Id. His first thought was that Powell was using speed, because in his experience speed had this

effect, causing “paranoia.” Id. Mr. Powell’s father testified that he saw his son thereafter in

1977 at an energy seminar, and that David looked thin and haggard and had been up all night

reading literature from the seminar. 32 Tr2 135. Mr. Powell’s maternal aunt, Frida Malone,

testified about an encounter she had with David in July or August, 1977, in which he looked

extremely abnormal – his hair was a mess, his eyes looked wild, he had no shoes on, 32 Tr2 158,

he was very thin, 32 Tr2 159 (he had not eaten in four days, id.) – and he conversed wildly while

shuffling through business cards. 32 Tr2 159. Ms. Malone was so disturbed that she called

David’s mother and told her he needed to go to a mental hospital. Id. He disappeared, however,

before his mother could get him committed. 32 Tr2 160. Ms. Malone saw David in jail on May

19, 1978, and he looked like a “wild animal” with his hair “a mess.” 32 Tr2 161.

Dr. John Luker testified that Mr. Powell was a former patient, whom he had attempted to

treat for methamphetamine abuse in late 1977. 32 Tr2 241. Dr. Luker testified that Powell told

him he was taking 1000 milligrams of methamphetamine per day. 32 Tr2 242. He noted that

Powell was underweight, anxious, and hyperactive. Id. In December, 1977, Dr. Luker

prescribed a drug called Cylert, which is also a central nervous system stimulant but unlike

methamphetamine, does not increase blood pressure. 32 Tr2 243.

9
 Two experts testified on Mr. Powell’s behalf concerning the effect of his

methamphetamine abuse. Dr. Lester Grinspoon, a nationally recognized authority on drug abuse,

32 Tr2 184-188, 194, testified about the effects of amphetamine abuse. Methamphetamine abuse

has more serious effects because it is more potent than amphetamine. 32 Tr2 201. People who

use the kind of daily quantity of methamphetamine reported to Dr. Luker by Mr. Powell have the

worst effects – psychosis, in which someone loses touch with reality, 32 Tr2 199, which often

produces paranoia and violent defensive behavior. 32 Tr2 202-209. Dr. Richard Pesikoff, a

psychiatrist from Houston, testified about his evaluation of Mr. Powell. 33 Tr2 394, et seq. Dr.

Pesikoff saw in Mr. Powell’s gradual deterioration a classic pattern resulting from

methamphetamine abuse. 33 Tr2 401-411. By 1977 and 1978, Mr. Powell manifested the

symptoms of a methamphetamine abuser: he was skinny, agitated, hypermanic, unable to

concentrate, paranoid, incoherent, and shaky. 33 Tr2 411. By the late 1970's Mr. Powell was

also experiencing hallucinations and believing that he was going to be attacked. 33 Tr2 412.

At the time he shot Officer Ablanedo, Powell was agitated, had impaired judgment, and

felt that he was being chased down by an enemy. 33 Tr 436. Mr. Powell was so debilitated at

the time of the shooting that Dr. Pesikoff believed he was insane – all due to methamphetamine

abuse, the effects of which were worsened by the medication prescribed by Dr. Luker. 33 Tr2

459, 495, 518, 524.

GROUNDS FOR COMMUTATION OF SENTENCE

I. For More than Three Decades, David Powell Has Lived an Exemplary Life on Death
Row, Embodying and Living Human Virtues as Few of Us Do.

Mr. Powell has made invaluable and innumerable contributions to the betterment of many

10
other people’s lives, both in and out of the Texas Department of Criminal Justice. He has for

three decades been a powerful force for good. To end his life makes no sense. As death row

inmate Robert Will has said, “If David is executed his death will take away a person who has had

a profoundly positive impact on Texas Death Row.” Appendix 13. And as death row inmate

Charles Thompson has said, “ It would be a tremendous loss not only to prison society, but to

society as a whole, to take away a life that has touched so many lives.” Appendix 12.

To present the evidence of Mr. Powell’s exemplary life to the Board, counsel for Mr.

Powell has interviewed twelve inmates currently on death row and one inmate who had been on

death row with Mr. Powell for 24 years but is now serving a life sentence. Each of these inmates

has signed an affidavit which has been included in the appendix to this application. Counsel for

Mr. Powell has also sought statements from eleven people outside TDCJ, ten of whom have

gotten to know and developed relationships with Mr. Powell since he was first sentenced to

death, and one of whom is his maternal uncle. Each of these people has prepared a written

statement which has also been included in the appendix to this application.

A. Death Row Inmates’ Accounts of Mr. Powell

The people who know Mr. Powell the best are the people he lives with – other people

sentenced to death. The thirteen death row inmates who have presented information about Mr.

Powell have lived with him on death row for as long as 26 years (Les Bower) and as little as just

under 4 years (Ramiro Gonzales). All of their accounts reflect their individual perspectives but

all clearly are describing the same person. The proof of the truth of their accounts is in both the

uniqueness and the similarity of their descriptions of Mr. Powell.

The accounts of the death row inmates are set forth in sworn affidavits, included in the

11
Appendix as Appendices 2-14.6 The affidavits were written in handwriting by the person

interviewing each inmate, with the assistance of each inmate to assure accuracy. For ease of

reading, each affidavit has also been typed, and the typed version is included right after the

sworn, handwritten affidavit of each inmate in the appendix containing that inmate’s affidavit.

Counsel has excerpted comments of each inmate and organized these comments thematically,

according to Mr. Powell’s behaviors and virtues. Following each separate quotation is the

Appendix number of the affidavit of the inmate from whose affidavit the quotation is taken.

David Powell is a very intelligent man. His intelligence, however, is not in any respect

coupled with arrogance. To the contrary, his intelligence and approachability have proved a

powerful draw to many inmates.

David is an extremely smart man with a very high I.Q. I’m not as smart as him but found
he could carry on a conversation using words I couldn’t use with anyone else. His
intelligence helped me along and I gravitated towards him. (App. 2)

David is an incredibly intelligent person. There was nothing that I discussed with him
that he knew nothing about. He helped lead me to the pursuit of self education. He did
this by stimulating my mind, he subtly inspired me through conversation. (App. 3)

When David walks into a day room it’s like someone turned the light on, it’s someone to
talk to, he’s not a dull person at all. More times than not he’ll lose me when I’m talking
to him but he seems to always gone back into your level. He can definitely knock you off
your understanding skill. (App. 6)

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, learn more so that
the next time I saw him, I could be more on his level. David is so intelligent and
knowledgeable that of course that was impossible, but he inspired me to try. (App. 8)

6
The Affidavits are from Les Bower (App. 2), Noah Espada (App. 3), Cleve Foster (App.
4), Ramiro Gonzalez (App. 5), Bobby Hines (App. 6), Preston Hughes (App. 7), Roger
McGowen (App. 8), Rodney Reed (App. 9), Mariano Rosales (App. 10), Vaughn Ross (App. 11),
Charles Thompson (App. 12), Robert Will (App. 13), and Clinton Young (App. 14).

12
 With me and David, I like to pick his brain, it helps keep me alive, stops me from
shutting down. He stimulates me, he keeps me going. Me and David have similar
backgrounds – I was at Texas Tech studying architecture when I got arrested so we have
bonded with each other having similar backgrounds like that. David is a good friend to
me, just recently we got outside together to talk, I can actually talk about things with
David like politics, the legal system, we can have little debates. (App. 11)

One of the most pervasive experiences death row inmates have had with Mr. Powell is his

helpfulness. He helps people understand things they have a hard time understanding, he shares

the knowledge he has when it helps someone, he provides emotional support and kindness that

many people have never gotten, he helps people cope with problems, he provides information to

people according to their interests and needs, he provides material things (e.g., stamps, food,

snacks, writing materials, personal hygiene products) that people need without their having

asked, and he provides comfort in times of great anxiety and stress. His fellow inmates have

explained all of this and more:

In the many years I have known David I have seen him become increasingly open and
gregarious. He didn’t isolate himself. David is a real repository of knowledge and was
free with his advice. He is someone that people know they can go to and David will most
likely have the answer to their question. (App. 2)

If you ask him a question he’ll do his best to point you in the right direction – and he’s
normally right, he knows what he’s talking about. David would help anyone, he is not
selective in who he helps, in here certain people group together, David is different like
that he doesn’t discriminate on the grounds of race or age or what you’ve done. (App.
11)

David has dedicated a lot of his time to helping others. He does not waste his time. He is
always reading scientific digests. He is a very inquisitive person and I was drawn to that.
You can read something in a book but still not understand it. You could go to David and
he could explain it. I would regularly go to him with legal issues. We would discuss it
and he would ask me what I thought too. (App. 2)

Dave is probably unequaled here education-wise. There are not many like him. His
knowledge and high I.Q. make him unusual and a resource. (App. 2)

13
David is like an uncle to me, I have known him 5 years, he supports me, emotionally and
legally. I am actually from Kentucky, I got no-one here, no-one so I rely on David
heavily. I have no family here, I rely on David for support, he talks me through to another
day, he talks me through, and out, of bad times – like when my appeals are denied. David
will calm me down when I’m pissed – he’s always right. (App. 4)

When David hears people’s problems he will help them, he tells them what cases to look
up or tell them he is in the same predicament and how he handled it. David sends them
letters with instructions 2 or 3 days after he hears about the problem. (App. 4)

Dave is a strong man, mentally and physically, if he hadn’t of helped me stay focused I
probably would have lost my damn mind. (App. 7)

David had a lot of hope. He just stayed positive. I was going through a depression, and
David was the one who told me to go outside. He would tell me to keep seeing the
psychiatrist, they can help you. (App. 10)

David has helped me with personal crisis. A girlfriend of mine left me for another man. I
was devastated. David told me the reality of the situation, that it’s hard to keep a young
girl happy when you’re locked up. He had me look at myself, he told me “you’re walking
around like a zombie, you’re not studying, reading, working, you need to snap out of it.”
(App. 12)

Since then he’s counseled me in my current relationship. David has given me advice on
how to show my girlfriend that I care being that I’m incarcerated and don’t have contact
with her. We share ideas on how to show our girlfriends’ affection, such as the 29th
sonnet by William Shakespeare which David introduced me to. (App. 12)

David is always thinking of other people and shares his stuff, like his newspapers – I have
waited a month before for his newspapers to make the rounds. People here don’t mind
waiting for David’s newspapers, by the time he is finished with them he has comments
everywhere. David will circle articles of interest and put the name of the guy next to it
and a big arrow pointing to it with a comment about why he should look at it. He is
always thinking of others like that. David cuts out pictures of outside scenery for me and
makes sure I get them, he does this because he knows I like to paint outside scenery. So
David will send me these pictures and I will paint them if I have the supplies. (App. 4)

I have never had as much help as I received from Mr. Powell in the year and a half that
we met and talked. He has helped me more than my own family. (App. 5)

Mr. Powell is a man that gives his life for his friends. When a person gets an execution
date, they stop speaking to others and they start to have very negative thoughts. Mr.
Powell, although he has an execution date set, continues to give people advice. He

14
continues to help people with their emotional struggles, despite his own inner turmoil.
(App. 5)

David is a link in a chain that keeps the helping going. There’s a country song, “Hey Joe”
it’s about the chain of love, gotta keep the love going, back here we’re like that chain and
David is a link in that chain, he is always there despite any arguments or conflicts – he is
always there to help the next person. (App. 6)

Dave always likes to help people out, he gives people anything he can, he’s given
something to eat, stamps, things like that. (App. 7)

David, he would buy little things from the commissary and give it to some of the other
guys, like candy, or soup. You just know who goes and who doesn’t go to commissary,
and David would give them something small, like an ice cream or soup. They wouldn’t
ask for it, it was just out of his good heart. (App. 10)

I first remember David giving out candy, it was around Halloween and he was giving out
the candy bars for trick or treat. It was surprising to me because you always hear bad
things about people on death row, I didn’t expect them to be kind or giving, I didn’t
expect him to be celebrating the holidays and giving out candy. (App. 11)

When I came from county I had nothing, I wasn’t allowed to bring anything except my
legal papers, my pictures and my bible. The guys in my pod, including David, gave me
things – shower shoes, toothpaste, toothbrush, soap, shampoo, pencil, paper, stamp,
envelopes and even food to snack on – they gave me everything. This changed my
impression of people on death row and David was a part of that. (App. 11)

David is a very community minded person. When new people arrive on death row, he has
helped them in basic needs like food, clothes, and hygiene. When people first arrive on
death row, they aren’t the most stable, and these things that David did for them brought
them down a few notches. (App. 3)

David helps the new guys. When you come here from county you can’t bring any of your
stuff, just shower shoes and legal papers. So we try to get a bag together with stuff, I
might put in legal pads, someone else put in some stamped envelopes, another person
puts a deodorant and someone else a toothbrush or toothpaste and David is a part of that.
He helps like that. (App. 6)

We get to go to commissary here where we can buy stuff, if David knows someone didn’t
go he’ll send them something – an ice cream, or anything. David has even asked ahead of
time if people need anything and will get them stuff. (App. 11)

David is easy to talk to and can and will talk about anything. When new kids get here

15
 they are standoffish and David talks to them, tells them not to be scared, tries to calm
them down. (App. 4)

When we were on the Ellis Unit, people with an execution the next day could call a few
people to their cell to visit with them. I know David comforted a lot of people at Ellis
before they made their transition, speaking with them through the bars. It is striking how
soft-spoken David is, but there is steel in him. He gives people comfort and strength.
After all these years David has kept his humanity and if anything, it has grown. (App. 8)

David helped me be honest with who I am here and now. He did this by leading by
example. Watching David’s routine, and listening to him, made me more conscious of
myself and my place in this world. (App. 3)

Most people on death row see Mr. Powell as a teacher and mentor, and most have

benefitted from his teaching and mentoring. He teaches basics – how to read, how to write, word

meaning. He teaches people how to live the lives they have been given. And he mentors people

he has taught, helping them make sense of and respond to what is happening in their lives. As

his fellow inmates explain:

After the 8th grade, I started to be home schooled, after having unfruitful academic
experiences. As all learning depended on myself, I imagined at times the perfect teacher
and mentor. Through the years I never found it, but in meeting David Powell I have come
to realize such a person is possible. When I met David, I felt he was a teacher I could
follow, and that he would lead me to a place not questionable to myself or to the world
outside. (App. 3)

My vocabulary and understanding of many subjects has improved tremendously as a

result of interacting with Mr. Powell. He shared many reading materials with me,
materials about poetry, theater, and philosophy. When I didn’t understand a word, I
would ask Mr. Powell what it meant, and he would have me use it in a sentence. (App. 5)

Mr. Powell taught me proper English. He showed me how to write a letter properly,
without grammatical errors like run-on sentences. These were things I didn’t learn in
school, but Mr. Powell showed me the importance of these things and explained them to
me in a way that I could understand. He was my English teacher. (App. 5)

Everything that Mr. Powell has taught me is my foundational genesis. Exercising these
character traits is something I enjoy. Mr. Powell taught me to use my time wisely, that
time doesn’t wait on you and it shouldn’t be wasted. (App. 5)

16
David is an older cat, he tries to help people with their legal problems. The help he has
offered me has always been mental, like just talking to me, or legal advice. He gives me
lists of cases to look up and how to look them up, and I would take notes and take it back
to David and say “I don’t understand this and I don’t understand that” and he corrects me
and puts me back on the right track. I can never figure this stuff out but he guides me.
(App. 6)

I have had a lot of intelligent conversations with David. Most guys back here are not able
to talk on that level. We’d spend two hours talking about law and politics. He’d always
take me through things I didn’t understand – dissect it and walk me through it until I got a
clearer idea. He’s my professor. No matter what he’s doing, he will always make time
for you. (App. 8)

David’s persona, his whole being, is about teaching. He sees everything as a learning
moment. He would go to people who needed guidance. There are people back here in
gangs, controlled by other people. He wouldn’t shy away from them. He saw potential in
people like that and encouraged them to think about things in another way. (App. 8)

David would get the court rulings and bring them to the day room. He would pass them
around and after every one had read them, discuss them and engage us in conversation.
He regularly helped guys with their legal work – guys that didn’t understand. I’ve seen
him stand patiently and tell people something over and over and over again until they get
it. (App. 8)

When I was out in the “free world” I attended college for a year – this sparked an interest
within me for learning. Sadly enough, this environment is extremely deplorable – anger
and hatred pervade throughout Texas Death Row. Animosity amongst inmates is
common and antagonistic behavior by prisoners towards staff members is a frequent
occurrence. When I first arrived here I was shocked by this. Constant scream-talking and
general nonsense was what went on daily. I thought “I’m going to lose my mind if I don’t
find something to read!” I expressed this to my neighbor and he said “You need to talk to
David Powell, he’s the guy downstairs in 46 cell. (App. 13)

The next day I met David. It was very evident that he was not a “common prisoner”. I
asked him for some reading material and David introduced to me to several great writers
including Dostoyevsky and Gandhi – writers who I still read today with a passion. I
quickly learned that David – or “Professor Powell” as many call him – was quite an
extraordinary individual. (App. 13)

And indeed I do mean “taught” in the truest sense of the word – David is a mentor and
educator. He has helped guys learn to read and advance their education. (A number of
those who he has mentored to [sic] have recieved [sic] life sentences and two have been
released from prison; they were exonerated). (App. 13)

17
 I can’t think of anyone that has given me more – intellectually and spiritually. David still
has so much to offer. There are so many people that can learn from him. (App. 8)

I saw David a lot on Ellis because I was a porter. Every time I saw him he was reading,
studying, talking to someone about the law. In all the years I have known David I have
never seen him read a novel. He reads about innovations in science a lot – he is always
learning and sharing his knowledge with others. He does not sit back and idly waste
time. (App. 8)

Many inmates commented on Mr. Powell’s positive attitude and demeanor and how he

has inspired the same attitude in others:

Meeting David showed me that learning never ends. He showed me this [is] not just
about academic subjects, but learning about yourself and living more positively. He
showed me that life in prison is more appropriately lived for the people who care about
me on the outside world, friends and family. (App. 3)

There was a time when David noticed that I was becoming affiliated with a
counterproductive group of people. He brought this to my attention so that I would
refocus my attention to my friends and family knowing that anything thoughtless I did
would hurt them more than it would me. (App. 3)

David is a positive influence on people here on death row, especially the youngsters.
When new guys come to death row some of the gang old timers might pull them aside
and try and fill their heads with crap. David will try and show them that they don’t have
to go down that avenue, they don’t have to go with the gangs or drugs and alcohol. David
will find out what they like and teach them to fight for themselves. Most of the time they
listen to him, I listen to him. He taught me to fight for myself. (App. 4)

Mr. Powell has had a positive influence on many of the people incarcerated here. He will
conform to your level of vocabulary to communicate with you. He has impacted a lot of
people on Death row in a positive manner. If you listen to Mr. Powell, he’ll come to you.
(App. 5)

I don’t never see my family, I talk to David and he says they got their world they live in
and we got ours. We talk a lot about family, about prison life and how it changes us. He
is not the person that he describes himself as once was. To me David [is] just about as
sound a guy I know, he ain’t gonna hurt nobody. David is respectful talking, calm-
leveled, he always offer an extended hand to help a man out. (App. 6)

David has taught me you have to look for the good in all things. The only thing you can
do is try to do more good and he showed me that by example. I know David does not

18
 harbor hate for anything or anyone. I have never heard him say a bad thing about anyone
or anything. David has definitely made me a better person. (App. 8)

The guards would treat him as a friend because David carries himself well. The others on
there don’t carry themselves like David. He was a gentle man. I’m older than David, but
I felt like he was more experienced than me in the way he carried himself. (App. 10)

David helped me adjust to death row, I was new here, I didn’t know what was going on, I
didn’t know what would go on, David helped relieve some of that tension and I thank him
for that. When you get to death row you can get around the wrong people that make it
bad to be here and then you can get around people like David who can make it a good,
positive experience. (App. 11)

David is a positive influence to other inmates, and not only because of his age; but also
his passive and quiet nature, I personally do not consider him a dangerous person and nor
does any other officer or inmate that I know. (App. 14)

David is a positive influence on Death Row. People go to him for advice, legal advice,
and also spiritual advice. A lot of guys don’t understand the legal arguments of their own
briefs, but David is able to break it down to them in layman’s terms. When guys have
questions about their appeals, they say “go ask the professor,” the professor is David
Powell. (App. 12)

Mr. Powell has made peace between inmates in conflict with each other and has protected

correctional officers from assaults by inmates:

When there have been rifts going on between two people David will wait for the fire to
die down, then, softly-spoken, he will tell them what he thinks, and you can tell what he
is saying is well thought out. These guys will be silent and listen and process what he has
said and then say “that old fart’s right.” Guys here listen to him. (App. 4)

Over the 8 years that I have known David I have seen him steadily work to be a positive
influence. Many times he has helped relieve tension between inmates and between
officers and inmates. One particular occasion comes directly to mind: A young rowdy
guy came out to the recreation cage. (Which is situated directly in front of the housing
cells.) He was extremely upset and belligerent and it was very obvious that a bad
situation was going to occur between him and staff members. (App. 13)

A few other individuals were actually intensifying the situation with negativistic
comments. David came to his cell door and acted as a rational calming voice and
completely discharged the situation and calmed the guy. He has done things like this a
countless number of times over the years but this particular instance has stayed with me

19
 because the inmate was speaking about engaging in violence against staff members.
(App. 13)

David has always strongly promoted the idea that all forms of violence are completely
and thoroughly unacceptable. David has taught others that if, say, a new policy change
occurs that guys are upset with, they should never take this anger out on staff members.
(App. 13)

David is a very passive person. When a situation of conflict arises here, many inmates
choose to resort to violence or a physical refusal to comply. David is a person who is
able to maintain his composure, and he resolves conflict through the proper channels.
(App. 14)

I remember one occasion when David was being denied his recreation by an officer.
Instead of lashing out on that officer like many inmates do, David calmly requested to
speak to a higher ranking official. When the ranking officer spoke with David, he aired
his grievance calmly and in a rational manner. The officer checked that he was owed a
recreation, which he was, and he was given his recreation. (App. 14)

Mr. Powell is known for treating other people with respect. He seems to have a knack for

making everyone feel that he has time for them and is eager to attend to their interests and needs:

Mr. Powell used to give me scripts to read from plays. I would read them and then talk
about them with Mr. Powell. He actually asked me for my opinion and then listened to
me. This made me open up to Mr. Powell, and he would explain to me other points of
view about the play. This gave me a sense of belonging that doesn’t exist in prison, and
that never existed with my family. (App. 5)

In the past 10 years I have maybe been in contact with him maybe 4 of the 10 years. But
when I see him, he always takes time to talk to me. (App. 6)

David always engaged me in conversation. He never talked at you, always with you.
We’d discuss a topic and he gave me other ways to think about things so you wouldn’t
get tunnel vision or one-dimensional thinking. I never once felt stupid around David,
despite his extraordinary intelligence. I just always anticipated learning something from
him. He was like one of your favorite teachers at school, where you couldn’t wait to get
to their class. David is one of the most knowledgeable people I have ever met. (App. 8)

Mr. Powell has expressed genuine concern for the victims of death row inmates’ crimes

and has felt and expressed deep remorse for the victim and survivors of his own crime:

20
 Just before Mr. Powell left my pod, I consulted him about writing a letter to the victim’s
family. The first thing he did was make sure I was sincere in my apology to the family.
(App. 5)

It is clear to me that David is remorseful for the death of the police officer. Not only for
the loss of officer’s life, but for the pain it has caused the officer’s family members. I see
this remorse in David through conversations with him. When he talks about how young
the officer was and the pain the officer’s family goes through, the degree of empathy
David has is clear by the emotions he displays. (App. 14)7

Many on death row consider Mr. Powell a good friend. He shares deeply in the lives of

others – he listens, he questions in a caring way. he shares his feelings about his own life, he

looks out for the well-being of others, he comforts others, he knows their interests and needs and

tries to accommodate them:

I really feel that David is my teacher, but he is also a very good friend. He is witty and
can tell a joke. He is so knowledgeable that I can talk to him about anything – law,
politics, but also football and music. He’s very easy to get along with. (App. 8)

I’m not someone who opens up too much, but I knew if I did have a problem, I could go
to David and he was someone that would give me a meaningful, straight answer. David
just has a comforting aura. It is a comfort to me just to have him around, to have his
presence. (App. 8)

I consider David a friend, I never heard anything come out of his mouth in a negative
light. He is an honest person. He is a conscious thinker and he gives me intelligent,
stimulating conversations. Our conversations assure me that I’m not the only one
thinking about what’s going on in the world around us – we talk about grown men things.
(App. 9)

David’s friendship means a whole lot to me, I been knowing David 11 years and we never
had a disagreement. He’s a friend to me where my freeworld friends and family can’t be.
(App. 9)

Back here you can tell when someone is in a different state of mind than the day before &
David comes and says to me “You wanna talk about it?” or say “hey walk, wanna cup of

7
In the last section of the clemency application, we address in greater detail Mr. Powell’s
feelings of remorse and the steps he has taken to communicate his feelings to the family of
Officer Ablanedo.

21
 coffee?” He has done this for me. He’s my friend, he shows concern and cares about me.
To me David is a friend. It may have started that I go to him about a legal question but
then we talked about different things and now he’s my friend. (App. 6)

Here at this Unit we have been on the same pod a few times and we have been in the
same section one time. Dave used to help me out by swapping out on rec. I don’t like to
go outside its like a hat box out there. Dave knows I don’t like it out there so if he is
inside and I am outside he would swap with me. Dave is my friend. (App. 7)

In 2003, I was going through Hepatitis C treatments, taking Interferon shots. During this
time I was embattled with depression, dealing with anger issues due to medication and
David Powell was a crutch of a friend during this time. David pushed me to exercise in
order to cope with the depression and anger. When I was feeling too down to go outside
and work out, David would say to me “you young people have no staying power.” This
motivated me to get up, go out, and show the old man. This support from David lasted
before, during, and after my treatment. (App. 12)

I have been able to confide in David. I’m comfortable talking to him and I know that
what I tell him, stops with him. (App. 2)

I trust David Powell. I trust him as a person that doesn’t live entirely selfishly. He
considers where he is at, and who is affected by his actions. There are a lot of irritable
people here, but David is able to communicate with people in a rational way. (App. 3)

I love David like a brother. I have seen him grow as our hair has turned gray together.
He is an open person who has encouraged me to be more open too. David makes a big
difference to the people that interact with him. I have valued him greatly as someone
who challenges me. (App. 2)

Mr. Powell has inspired many others by the way he has lived his life. His example has

encouraged other death row inmates to live their lives more positively, to have more compassion

for other people, and to be of service to others:

David showed me info on legal cases and that’s how I started trying to study law myself,
he inspired me to dig deeper into my case. David has been an inspiration to me, to not
just sit back and watch my attorneys. David encourages me to stay on top of my life, my
family, my case – everything. I take everything he says whole-heartedly. (App. 9)

David is someone you want to be around, he keeps you going, he has that life in him, he
has that spirit. (App. 11)

22
 David has been a personal inspiration to me as well. He taught me that it is possible – no
necessary – to live a positive and productive life even while on Death Row. Since being
here I have become an artist, poet, writer and have followed in David’s footsteps as a
mentor. I have become a certified Yoga Instructor and I am currently taking University
courses via correspondence and I have been maintaining an A+ average. David has
definitely been instrumental in helping me achieve all of this. (App. 13)

In the past I’ve been known to not be the most compliant individual when it comes to
following the rules. After moving back to the same section as David Powell, my
interactions with him have persuaded me to direct my energy to a more positive and
productive path of solving my problems. In the last year I’ve maintained a level I
classification, which is the most privileged level. Recently, even the guards have
complimented me on my good behavior. (App. 14)

Instead of focusing my energy on resisting the policies that I disagree with and feel are
unjust, I have diverted my energy toward more noble causes. I spend my time raising
awareness toward certain non-profits like Smile Train, an organization that provides cleft
surgery for under privileged children. (App. 14)

David is a mentor to me on many levels, personal, legal, spiritual and intellectual. He is

“the old wise one”, he is my go-to guy. David has inspired me to carry the torch, and
continue to counsel and mentor those in need. (App. 12)

Mr. Powell has taught me and shown me what love is. He has shared with me emails and
letters from his partner, showing me that love is shown through actions. He has inspired
me to write my own family despite conflict we have, and to show them my love even
when they don’t write back, and to continue to write them. (App. 5)

I’m currently corresponding with 4 penpals who have asked me for advice. They are
college students and mothers from Europe. I opened myself up to them, and in response
they have come to me asking for advice on personal issues. Sharing the emotional things
I have experienced with Mr. Powell to my penpals showed them that I can get on an
emotional level, and this is what helped them open up to me. It is because of Mr. Powell
that I have been inspired to help others. (App. 5)

In sum, people on death row cherish David Powell. He is consistently kind. He is

calming. He helps people learn about themselves and grow. He helps people stay rooted in the

tasks before them and to approach each day with hope. He is compassionate and wise. The

expression of many of those who provided affidavits sum up the life of David Powell with

23
eloquence:

David has been a very important person in my life. Whenever he was around me, he was
always trying to teach me. He tried to teach everyone around him and to enrich their
lives. He preferred human interaction to anything else. He would rather talk with
someone than listen to the radio. He openly showed his humanity. (App. 8)

You can always tell when someone is feeling down and David is someone who would
reach out to people, tell them to keep hoping, to keep their head up. David is one of the
most kind people I have ever met. He would always be aware of the people around him.
He is aware of the power of words and always considered that before he spoke. He has so
many beautiful qualities. There aren’t many people like him. (App. 8)

I call David Powell “Mr. Powell” because I consider him a teacher, an elder who deserves
respect, and a father figure. My family does not have any contact with me, but Mr.
Powell gives me an incredible sense of belonging by listening to me, talking to me, and
opening up to me on an emotional and intellectual level. (App. 5)

I consider Mr. Powell a father figure. My biological father was incarcerated for most of
the first 18 years of my life. Mr. Powell gave me a warmth of acceptance that allowed me
to open up without fear. Mr. Powell listened to me and taught me things that I have never
had the opportunity to do with my own father. Mr. Powell taught me that a man listens,
and that a man can cry and stand straight. When an individual here passed a message to
Mr. Powell that I wanted to talk to him, they would say “hey Mr. Powell, your son wants
to know....” (App. 5)

David said to me, “I don’t know if I’m helping you or you’re helping me,” because we
would talk together. But I knew it was him helping me. Even though I was older, he was
so wise. To me he was just a good man. And he was real talented. Just being there,
being who he was helped me. (App. 10)

After I had spent time with David I would sit and think how many people could benefit
from what he had taught me that day. I feel that he has so much love and wisdom in him
and it was not wasted on us, but I felt it was a terrible loss that more people couldn’t
benefit from a person of his capacity. (App. 8)

Even though David is scheduled to be executed he is still acting as an educator and

positive influence. If David is executed his death will take away a person who has had a
profoundly positive impact on Texas Death Row. (App. 13)

Sometimes I would see David struggle too. A lot of people back here shut people out
when they have something on their mind, but David let people in. He is receptive to
everyone. That is a rare quality in here. David has a core that doesn’t change. Most

24
 people here are guided by peer pressure. When David does something, he will make sure
it’s on the side of right. (App. 8)

It would be a tremendous loss not only to prison society, but to society as a whole, to take
away a life that has touched so many lives. (App. 12)

B. Free World Citizens’ Accounts of Mr. Powell

People out in the world have found David Powell to be just as others on death row have

found him. Eleven of these people have provided statements to the Board which are attached as

Appendices 15-25. These people include the following:

Rev. Larry Bethune, senior pastor of the University Baptist Church in Austin (Appendix

15),

Amon Burton, attorney in Austin and member of the faculty of the University of Texas

College of Law (Appendix 16),

Dr. Clement Struve, Mr. Powell’s maternal uncle and a retired ophthalmologist in Corpus

Christi (Appendix 17),

Frances “Sissy” Farenthold, resident of Houston and former Texas legislator and college

president (Appendix 18),

Judith Filler, resident of Austin and former executive director of the Texas Alliance for

Human Needs (Appendix 19),

Yolanda Sharp, resident of Austin and former store owner whom Mr. Powell defrauded

with a worthless check (Appendix 20),

Sara Graham, resident of Alameda, California, film-maker and former student at the

University of Texas (Appendix 21),

John Seebach, archeologist and resident of Alpine, Texas (Appendix 22),

25
 Vik Bahl, former graduate student at the University of Texas and now Professor of

English at Green River Community College in Auburn, Washington (Appendix 23),

Jamie Watson, former graduate student at the University of Texas and now Austin

resident (Appendix 24), and

Mariann Wizard, college friend of Mr. Powell and Austin resident (Appendix 25).

Many of these friends have seen the same gifts as teacher and educator that inmates on

death row have experienced:

During his years in prison he has taught many prisoners on death how to read and write.
He can make a very significant contribution to the general prison system by helping to
educate other prisoners. He literally is capable of running a school within the general
population of the prison. And that is desperately needed because so many in the general
population are released back into society. (App. 16)

As I look back over these years he has taught me so much about the human condition. He
practices his non-violence in his speech, his articulation of his thoughts as well as his
actions. In 32 years as an inmate he has been a model of good behavior. (App. 18)

Often in our discussions he is the one who will gently point out that there are other
positions to consider, ones that I had not considered. For me he has been a teacher in his
patience, forbearance and equanimity. (App. 18)

In our visits over the years the tables were turned. I did not bring the outside world to
him. He taught me by setting a standard as a caring and perceptive human being who
reached out to help those incarcerated with him and to share his thoughts and projects
with those who live outside the walls. (App. 18)

David is a gifted teacher who puts a great deal of care and thought in developing
appropriate lesson plans, often filling them with humor, as he did with my physical
therapy exercises, making the learning -- fraught with stress for men who had "failed"
education -- interesting and achievable. His teaching was careful to preserve these men's
dignity, removing the obstacle to learning which their previous failures had cemented.
(App. 19)

I am forever changed by having met David Powell. He has helped me to open my eyes
and gain a wider understanding of issues of human dignity, forgiveness, and redemption
than I would ever have come close to had I not intersected with him. He has enriched my

26
 life in ways I could never have imagined, and I am very grateful to have found him. He
has made a better person of me. (App. 21)

During his imprisonment, he has served as a devoted teacher to fellow prisoners. With
over 97 percent of all prisoners eventually returning back to our neighborhoods and with
budget cuts already being implemented at the Texas Department of Criminal Justice, we
need people like David Powell behind bars helping rehabilitate his fellow prisoners.
Research has never shown the death penalty serves as a deterrent, but research has fully
documented the efficacy of rehabilitation. Life imprisonment would allow David Powell
to continue to give back to society by helping rehabilitate other inmates. In this case,
public safety favors life imprisonment rather than the death penalty. (App. 24)

The deep and abiding friendship that Mr. Powell has extended to so many on death row

has also been extended to many on the outside. Judith Filler explains how when she became ill,

Mr. Powell’s friendship provided the critical support she needed:

Some years ago, I began being ill with a mysterious malady. It was twelve years before I
was diagnosed, by which time a rare cancer was spread throughout my body. I have little
family and none in Texas and all that time, David was my principal support. A science
major in college, he read the esoteric articles I downloaded from the web and mailed to
him. From these, he made up lists of questions for me and studied the doctors to steer me
to the best specialists. I am still alive and functioning years after my projected death, for
which I give him much credit. Without his aid, I don’t know how I could have navigated
through this difficult journey.

The cancer diagnosis was preceded by years of increasing illness, through which David
coached me. Early on, when I needed physical therapy and he was still in Travis Co. jail,
he would trade his popcorn, coffee and other prison perks for more phone time to talk me
through my painful exercises multiple times a day. He spent the time between calls
devising funny counting routines to make the painful exercises bearable. I was not
always very pleasant in these sessions, yet he was invariably patient and caring, with a
gentleness I had never before or since encountered.

Appendix 19.

John Seebach met Mr. Powell because his fiancé Norma Padilla had been a graduate

student at the University of Texas and had gotten to know and cherish Mr. Powell during the

years she was in Austin. Before they married, Ms. Padilla was killed in a rare flood in El Paso.

27
Judith Filler connected Mr. Seebach with Mr. Powell in the wake of this tragedy. Mr. Seebach

writes of the friendship Mr. Powell extended to him:

It was a true friendship – David was a person who made you feel at home and one with
whom you immediately felt comfortable…. We would speak of life, literature,
philosophy and any number of other subjects. I found David to be erudite, engaging and
incredibly sensitive – not qualities generally associated with hardened criminals. He
encouraged me as I prepared to embark on a graduate career. He was happy when I told
him I had started dating again. I tried to describe to him as much as possible the things I
was doing “on the outside,” which is much more difficult than it sounds....

He and I became friends during one of my life’s darkest moments. He tried his best to
help me through those moments. And in many ways he did. In many ways I was far too
damaged. Maybe he understood given the circumstances in his life. I don’t know. But
looking back on it now, what a strange state of affairs! Here was David, a man convicted
of capital murder, reaching out to me, just some guy who was all of seven years old when
he was handed his death sentence! But, such is David. With the exception of a single
horrible night, he tries to make the world a better place for everyone.

Appendix 22.

The same generosity of spirit was extended to Vik Bahl in the friendship he and Mr.

Powell developed:

[W]hen we began communicating by telephone I was immediately struck by David’s

unpresuming manner, and he consistently demonstrated sensitivity, thoughtfulness and
warmth. I never felt that he was asking anything from me. We didn’t discuss his case,
but we discussed my academic work, my new experiences with teaching, and the general
state of the world, including the criminal justice system. Eventually, we learned about
each other’s personal lives as well.

Appendix 23.

Many of Mr. Powell’s free world friends have seen and experienced the same additional

exemplary qualities that many on death row have experience and remarked on, including Mr.

Powell’s respect for others –

I was impressed by his sincerity and honesty in our communications. He did not try to
manipulate me with a pretended conversion. Rather, our religious conversations were

28
 frank and direct, and David did not pretend to agree with me when he did not agree. I
experienced him as intelligent, insightful, and genuinely interested in my experience. Our
conversations were mutual. (App. 15)

– his steadfast helpfulness –

David is an extraordinary listener and many young people found in him the ear they
needed to help them through difficult times and decisions. He helped many find their
way through college choices and helped them to understand and better use resources in
their studies. (App. 19)

– his inspiration to live life better and more positively –

David Powell has been a supporter of people’s positive creativity. Over the years, by
word of mouth, he became a friend to a number of poets, playwrights, photographers and
artists who found inspiration from him. The quality of his spirit, especially coming from
the circumstances of his incarceration is truly exceptional and inspiring. (App. 19)

From time to time, I received letters or calls from men leaving prison or jail asking me to
thank David for them and telling me how he had changed their lives. They sometimes
sent me art he had encouraged them to do and they always talked about how knowing him
had changed their view of what they could be and do in life, that they were going to go
out and do good rather than the kind of bad they had done before. (App. 19)

– his engagement in peacemaking in the prison –

I had a role for 10 years as a volunteer contact for Amnesty International with people on
Texas death row. During that time I got to know many men there, four of whom I visited
and many who wrote me. Their letters often included stories of David Powell’s bravery
in intervening between violent inmates (they were not in isolation then) at the risk of his
own life. Again and again, I was told that he is different from everyone else on death
row, that he is known as a peacemaker and wise counsel, that he has never used drugs or
dealt in contraband. The 7 guards who testified on his behalf at his [third] trial confirmed
what the other prisoners had told me.8 (App. 19)

and his positive approach to life –

8
Five TDCJ correctional officers and three TDCJ non-correctional employees testified on
behalf of Mr. Powell at his third trial. 40 at 31-44, 69-75, 76-85, 85-90, 97-104, 105-108, 109-
122, and 123-126. Each testified that Mr. Powell would have been given the highest rating on a
scale of 1-10 for following the rules, maintaining non-violence, and being courteous to TDCJ
staff.

29
 He has not waited 32 years, plotting his next act of violence if he gets out of this. No,
instead he has taken what he is dealt, and has tried consistently to try to make the best of
it – not just for himself, but for so many around him. (App. 21)

As with the death row inmates, many of Mr. Powell’s friends have commented on the

deep remorse Mr. Powell feels about the killing of Officer Ablanedo, a remorse that is readily

apparent to anyone who spends much time with him:

In our conversations about his specific crime and trial, David reflected genuine remorse,
not only for the family of Officer Ablanedo, but for all of the people his actions hurt –
including his own family. (App. 15)

He feels extreme remorse for the tragedy involving the Ablanedo family. (App. 17)

David was heartsick over the damage that the murder he was involved in had done. He
asked me if there was any way he could help the grieving family, but his attorneys
counseled him against trying to connect with them. As an alternative, I agreed to find
other victims of murder he could try to help. Over the years he was in Austin I did, in
fact, introduce him to half a dozen people I happened to meet whose loved ones had been
murdered. I met these individuals by chance and, hearing about their loss, I asked if they
thought it might help them to be able to talk about their pain and anger with another
murderer. Though they were nervous, after hearing about the kind of person David is,
they agreed to meet with him. Several went only a few times, while several became close
personal friends of his. All of them reported to me that knowing him and talking with
him about their pain had helped them to heal. One woman, whose mother had been
murdered, wrote a book on forgiveness after visiting with David for some time. (App 19)

His remorse for death of Officer Ablanedo has never faltered nor has his sorrow for the
family of the murdered man ever ceased. He has expressed these feelings to me often.
(App. 19)

You cannot visit with David, know David, interact with David, and remain oblivious to
his remorse. His demeanor, his gait, his eyes especially – they speak reams of regret and
sadness, of the desire to be forgiven. He is a man who has paid his debt to society, with
interest. To know David is to know that justice has been served. (App. 22)

Mr. Powell also felt remorse for other things he had done wrong prior to his killing of

Officer Ablanedo. When he was back in Travis County for his second trial, for example, Mr.

Powell reached out to a store owner whom he had defrauded with a bad check. This person,

30
Yolanda Sharp, has written the following:

David was a customer of Circle K when we met. He gave me checks without funds.
When David was in jail here in Austin, he called me by telephone to apologize and to tell
me that he wanted to pay me what he owed. Thinking that he found himself in a difficult
situation, I accepted his apology, but I did not accept the money he was offering me.

David and I established a friendship. I consider that David is a good person and very
good-hearted.

Appendix 20.9

Resonating with a theme that ran through many of the death row inmates’ affidavits,

many of Mr. Powell’s friends and family have noted that the continuing belief that Mr. Powell is

a danger is utterly unfounded, and that Mr. Powell can do far more continuing to live than his

death would accomplish:

David Powell has reached out to numerous people during his long stay on death row, and
formed meaningful friendships. I find the contention that he is a continuing threat to be
disingenuous and false. To the contrary, I think his experience is meaningful and his
story a cautionary tale that is more likely to be a deterrent to those who hear him tell it.
(App. 15)

Mr. Powell presents one of the very unusual cases coming before you seeking clemency.
He made a terrible mistake when he was in his 20s, but he has an unblemished record in
prison over all these years, he has matured and is extremely intelligent. Most
importantly, from my visits with him he does not have a criminal personality and is
capable of making a contribution to society. (App. 16)

He is such a fine person that I hope you can see past the worst thing he ever did. The real
David Powell is not the one who took Officer Ablanedo’s life. The real David Powell has
given better life to everyone he has had contact with in prison. (App. 17)

If he were allowed to live, he would still be such a valuable asset to society! He could
continue to help younger people get off the wrong track, inspire them to better themselves
and inject that positive influence out into the free world. I am convinced that having
David alive in this world will prevent future violence – directly. I am certain that letting

9
Ms. Sharp is a native Spanish speaker and has written her statement in Spanish. A
translation follows her letter in Appendix 20.

31
 David live would not pose any risk of violence. (App. 21)

Reiterating the universal view of death row inmates, Mr. Powell’s free world friends see

no good coming from his execution, only profound loss:

His execution would be grievous to a number of people who consider David a friend –
including me – and would not bring healing to the family of the victim. I believe no
meaningful redemptive purpose will be served by Mr. Powell’s execution, and appeal to
you to choose clemency as a more productive service for the healing of our community.
(App. 15)

After 32 years on death row, a life sentence for some, what public good does it serve to
execute David Powell? Will the citizens or the state of Texas be better for his death? I
submit that we will, in fact, be poorer, and I again request clemency and mercy in the case
of David Lee Powell. He unreservedly deserves punishment for his crime. But a lethal
injection after so many years is vengeance, not justice. (App. 22)

I have often imagined that under different circumstances he would have been celebrated
as a community elder, providing resources of strength and leadership. As you know, so
many have attested to his rare gifts. How has he won the respect, friendship and love of
so many perfect strangers from various walks of life? Isn’t it a mystery that anyone can
rebuild or resuscitate his spirit in this way? Though nothing can excuse or make up for
the heart-rending loss of Officer Ablanedo, I cannot understand what we would gain from
extinguishing David’s unique and generous spirit. (App. 23)

In addition, the execution of Mr. Powell will further decimate his family, already deeply

hurt by the loss of him for 32 years on death row:

I saw the same regret and sadness when I called on Marjorie Powell, David’s mother,
after my visit with her son. He was not yet dead, but he had been lost to her. (App. 22)

This has been devastating for Marjorie. She has spent all of her money for David. All of
this has left her severely mentally and emotionally disturbed. (App. 17)

Through all the years I have known David Powell, he has been constant in his devotion to
his family and sorrowful for the tragedy, which destroyed both his life and another’s and
thus irrevocably damaged his own family. (App. 19)

If he is executed, I don’t know what it will do to me. I am very afraid but I know I must
walk with him in any way I can. It already torments me day and night, and the pain is
more than just psychological. It is physical, a weight that I cannot explain, something

32
 awful I have never felt before. Just since the execution date was announced I have lost 30
pounds because I cannot eat or sleep. (App. 21)

In the end, the views of those who know David Powell outside the walls of the Polunsky

Unit are the same as those inside its walls: Mr. Powell is someone who contributes much more

to life than his execution would contribute to the symbolic goal of retribution 32 years after the

murder of Ralph Ablanedo. An Austin police officer who is not willing to let his name be used

said the following in an email to forwarded to undersigned counsel

I met Ralph Ablanedo and his wife. I know Bruce Mills, Ralph’s partner who married
Ralph’s widow and adopted his children... We all wanted David and his girlfriend to be
put to death for that needless murder of a good man and a good cop. Through all his
appeals, we cursed a justice system that kept giving him chances to avoid being punished
for that callous act. The newspaper story says that David has apologized for something
he did terribly wrong “in a few frightened seconds” of his life, but that is not really the
case. He fired the shots not because he was afraid, but because he was angry at “the
establishment” and “the pigs.” It was not a few frightened seconds, because he had lived
the life that led him to those seconds for years. He was carrying an AK-47 and a back
pack full of drugs and a hand grenade. He must have made some decisions about what he
might do if the cops stopped him long before it even happened, or why carry that
arsenal? That David Lee Powell deserved to be put to death, I think.

However, that was a very long while ago. I think that punishment should be swift and
sure. I think David should have paid for his decisions and his crime with his life 25 years
ago. I do not think that putting him to death today will serve any good purpose. The
death penalty should be a deterrent to horrific crime, a message that such crimes will not
be tolerated, and a means to ensure that someone who is capable of such crimes can not
repeat that behavior ever again. That message loses its potency when 30 years pass
before the sentence is carried out. If David Powell was the type of man who had been
blaming society, or spewing forth anger at the injustice of it all, or had been violent while
in prison, then I would have a different opinion, I suppose. The fact is, though, that I tend
to agree with one of the speakers in that You Tube film. The man who will be put to
death for the killing of Ralph Ablanedo is not the man who committed the crime. This
David Powell is an elderly man who has shown what I believe to be true understanding
and remorse for his crime. This is a man who, in my feeble view, would not be any type
of menace to society today and is not, in even any small way, the guy who killed that cop
32 years ago. Texas missed its opportunity to put that man to death and, in my view,
accomplishes absolutely nothing in carrying out that man’s sentence on this man now.

33
 I don’t have the answers. I’m in favor of the death penalty. I just wish it had been done
while some part of the David Lee Powell who so needlessly and brutally killed Ralph
Ablanedo still lived. The David Lee Powell who sits on death row today is not the person
who was sentenced to death, I fear.

Vik Bahl speaks for others in the community of Mr. Powell’s friends when gets to the same place

as the Austin police officer:

So much was lost that night. Incalculable losses. First and foremost, Officer Ralph
Ablanedo’s life but also other losses for the Ablanedo-Mills families that have continued
to unfold over time. And for David’s own family, too. And must we not also add the loss
of David’s own life over the last 32 years and the beauty and potential it had promised?

David carries the spiritual, emotional and psychological burdens of all of these losses, and
he has never attempted to shirk or lift them. Yet he has rebuilt a life and a personality
that is capable of genuine and compassionate connection with others, both inside and
outside prison. He manifests unmistakable generosity, is sensitive and solicitous of
others, and embodies modesty, kindness and dignity. His wisdom and humility are born
of relentless self-examination and an unblinking awareness of life’s suffering, including
what he himself irreparably caused.

I do not ask that David be spared so that he can go on enjoying life. Please spare him
because we have discovered beyond a reasonable doubt that he consistently and
extraordinarily contributes something valuable to the lives of others. Prison is only
seemingly a world apart. What happens inside, how lives and relationships unfold, and
the culture that evolves within impact all of us and are part of us. Let David serve as a
force for good inside the dark and desperate world of the prison, and let clemency for him
be an occasion for all of us o discover our common humanity and what the human spirit
is capable of achieving.

Appendix 23.

II. Mr. Powell Is, Without Doubt, No Longer a Future Danger

Viewed from the perspective of future dangerousness, the testimonials given about Mr.

Powell by thirteen prisoners and eleven free world citizens boil down to one common theme:

Mr. Powell does not present any risk of dangerousness now or in the future.

To agree with this conclusion, the Board need not reject the conclusion of Mr. Powell’s

34
third jury that he did present a risk of future dangerousness. The jury reached that conclusion

more than eleven years ago, on March 6, 1999. The jury could not then have known that Mr.

Powell would cause no trouble in prison over the next eleven years. The Board now knows that.

Moreover, the jury was not presented with the testimony of other death row inmates, who lived

with Mr. Powell for years and knew him better than anyone – and who, to a person, agree with

the assessment of inmate Roger McGowen: “David has a core that doesn’t change. Most people

here are guided by peer pressure. When David does something, he will make sure it’s on the side

of right.” Appendix 8. The Board now knows this and a lot more about Mr. Powell than his

third jury knew. On the basis of the passage of more than another decade without incident – and

with abundant evidence of good works by Mr. Powell since then – the Board is in a very different

position than the third jury. The Board cannot have any doubt that David Powell no longer

presents a risk of danger.

However, if the Board needs more, there is more. In December 2007, Mr. Powell became

seriously mentally ill. He was “hallucinating (both hearing voices and seeing things) and was

planning on killing himself.” Appendix 26 (report of Dr. Seth Silverman). At the request of

counsel for Mr. Powell, Dr. Silverman – board certified in adult, addiction, and forensic

psychiatry – began seeing Mr. Powell therapeutically. The intervention was successful, as Dr.

Silverman explains:

I have evaluated David Powell and treated him in psychotherapy for well over two years.
As stated previously, Mr. Powell was initially evaluated because of concerns that he
might commit suicide. As a result of his mental illness, he had constructed an internal
world in which android-like robots had ongoing conversations with him. He was
clinically paranoid and was convinced that he was being told to kill himself.

He was treated with psychotherapy. Due in part to his ability to apply his intellect

35
 constructively and therapeutically, and form a healthy relationship with me, Mr. Powell
came to understand how his psychotic internal world was just that. And, with that
understanding and trust, the android-like robots began to disappear during the first
months of treatment.

Mr. Powell was able to heal within months and has been able to interact more
constructively, logically, consistently, and empathically with his internal and external
world.

Appendix 26.

As a result of this intervention, Dr. Silverman has continued to see Mr. Powell into the

present. On the basis of the scores of hours he has spent with Mr. Powell, Dr. Silverman has

concluded:

Mr. Powell’s intellectual functioning probably puts him in the exceptional range
(assessed by vocabulary, ability to integrate and abstract information, short and long term
recall,). This functioning allows him to introspect and learn and to relate the complexity
of his choices at a very sophisticated and complex level. He has demonstrated these
abilities in his interactions with other inmates on Death Row and with me.

1. His ability to understand the path and decisions he chose that resulted in
killing a police officer is unique. His superior intellect and memory allow
him to trace the decisions he made--one by one--to demonstrate how one
bad decision affects the likely making of another decision, and so on and
so on.

2. He also has the ability to relate his choices in prison and how, at times, his
choices did not result in the kind of outcome he anticipated. He also has
the ability to relate how he learned and made different choices in prison,
that have resulted in outcomes he did anticipate.

Succinctly stated, David Powell has a unique ability to educate others about how his
choices have affected his path – and he has a unique ability to educate others about how
to learn and make better choices.

Appendix 26. After reviewing the affidavits from the death row inmates that have been

presented to the Board, Dr. Silverman further concluded:

David Powell has an exceptional ability to reach out and educate others. He can trace his

36
 own untoward footsteps and paths with great clarity and wisdom. David Powell has the
ability to educate others about how his choices have resulted in a path that resulted in a
severe criminal behavior. And he has the ability to educate others about how to learn and
make better choices.

David Powell has unique insight, experience, and intellect that has helped others and in
all medical probability if given the opportunity, will continue to help others to identify the
likely consequences of their choices before they are made, and as a result, to make better
choices. His ability to contribute positively to the lives of other inmates in TDCJ is, in
my years of experience as a forensic psychiatrist, unmatched.

Id.

Directly addressing the risk of future danger, Dr. Silverman also found the risk to be quite

mninimal:

Mr. Powell is at minimal risk to reoffend .

1. He has one violent offense and none after the instant offense during his
almost 32 years of incarceration.

2. He has not used drugs and ongoing prevention of that use further
minimizes the chances of him committing a future violent offense.

3. He is too old to commit a future violent offense [on the basis of numerous
research studies showing that inmates of Mr. Powell’s age, without taking
any other factors into account, rarely commit acts of violence in prison].

Id.

Accordingly, expert risk assessment, together with the experiences of twenty-four people

who know Mr. Powell extremely well, point to but one conclusion: Mr. Powell does not present

any risk of dangerousness now or in the future. As the Board knows, there must be a

“probability” that a capital defendant such as Mr. Powell will be dangerous in the future for the

death sentence to be imposed. Texas Code of Crim. Procedure, Art. 37.0711, § 3(b)(2). If there

is – without doubt – no longer such a probability at the time of execution, the execution should

37
not go forward.

III. Mr. Powell Would Not Have Been Sentenced to Death Had the Alternative Sentence
to a Death Sentence Been Life Without Parole

There is an additional reason to recommend commutation, because the alternative to the

death sentence for Mr. Powell in all three of his trials was a parolable life sentence, not life

without the possibility of parole (LWOP). Recent juror interviews have shown that Mr. Powell

would not have been sentenced to death had LWOP been an option.

Counsel for Mr. Powell is in the process of conducting interviews of the eleven living

jurors from his third jury to determine whether, had there been an option of life without the

possibility of parole, any juror would have voted differently on the future dangerousness special

issue. Thus far, he has conducted interviews of five jurors. One of these jurors, Gayle Windle,

has provided an affidavit in which she says that, had there been such an option she would not

have voted to find that Mr. Powell was likely to be a danger:

When the trial concluded, we went back to the jury room to deliberate. We were asked to
answer two questions. I do not remember the exact wording of the questions, but one was
whether Mr. Powell killed Officer Ablanedo deliberately, and the other was whether Mr.
Powell would be dangerous in the future. We were told we had to agree unanimously on
the answers to these questions. We understood that if we answered “yes” to both of these
questions, Mr. Powell would be sentenced to death.

We easily agreed unanimously that the killing was committed deliberately. We had a
harder time on the future danger question. Several jurors believed that Mr. Powell would
not be dangerous if he stayed in prison. Life without parole did not appear to be available
as a sentence then. If there has [sic] been life without parole, I believe that several jurors
would have voted “no” on the future danger question. I know I would have.

Appendix 27.

The views of Ms. Windle are consistent with the experience of other capital juries. All

the available data has shown that when the alternative to a death sentence is life without the

38
possibility of parole, jurors tend to sentence people to death much less often. In research

conducted by the Capital Jury Project, involving extensive interviews with people who have

actually served as jurors in capital trials that went to a penalty phase, researchers found the

following:

Using data gathered from the South Carolina segment of the nationwide Capital Jury
Project, we find that capital jurors, like members of the general public, do indeed support
the death penalty. But jurors, like members of the general public, have doubts about how
fairly the penalty is administered. Moreover, and yet again like members of the general
public, jurors are also prepared to abandon the death penalty in favor of life imprisonment
without parole (LWOP), especially if the offender is also required to make restitution to
the victim's family (LWOp+).

Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells, The Deadly Paradox of Capital

Jurors, 74 S. CAL. L. REV . 371, 373 (2001).

Consistent with this data, in Texas the death sentencing rate has gone down by more than

40% since 2005 when LWOP became the alternative to a death sentence in a capital prosecution.

See American Bar Association, The State of Criminal Justice 2010 215 (April 2010); Olsen,

“Harris County Loses State Lead in Executions,” Houston Chronicle, December 28, 2009.10

10
Ms. Olsen wrote in the Chronicle:

Texas was the last of the nation's 35 death penalty states to adopt life without parole as an
alternative in capital cases. The law offered a legal guarantee to jurors and prosecutors
alike that convicted killers sentenced to an isolation cell in lieu of an execution chamber
could never be freed.

Statewide, only about 50 inmates have been added to death row since the law took effect
Sept. 1, 2005. In contrast, from September 2001 to September 2005 — the four years
before the law was enacted — 90 were sentenced to death.

The post-life-without-parole decline in death sentences exceeds 40 percent.

http://www.chron.com/disp/story.mpl/metropolitan/6788682.html.

39
 This information raises a very substantial basis, apart from the other reasons presented

herein, to recommend the commutation of Mr. Powell’s death sentence. In a recent Oklahoma

capital case, the Pardon and Parole Board recommended clemency, in part, because the jury that

sentenced condemned prisoner, Richard Smith, to death did not have an LWOP option to a death

sentence. As reported by the Death Penalty Information Center on April 5, 2010,

Governor Brad Henry of Oklahoma recently granted a stay to Richard Smith, who was
scheduled for execution on April 8. The governor wanted to allow more time to review
the recommendation of the Oklahoma Pardon and Parole Board that Smith's death
sentence be commuted, and to meet with prosecution and defense attorneys to hear their
perspectives. Smith was convicted of a 1986 murder during a time when evidence of
fundamental errors in the criminal justice system was not as apparent as it is now. A year
after his conviction, Oklahoma's legislature passed a law adopting life without parole as
a sentencing option. Three jurors from Smith's trial have since signed affidavits stating
that if life without parole had been an option, they would have voted for it. Jurors have
also signed affidavits recalling that they were “unimpressed” by the performance of
Smith's defense lawyer at trial. In 2005, a U.S. District Court stated that, by today's
standards, the defense's failure to request a psychiatrist to assist him for the penalty phase
was unreasonable.

http://www.deathpenaltyinfo.org/oklahoma-execution-stayed-jurors-did-not-have-life-without-pa

role-option (emphasis supplied). On May 19, 2010, the governor granted clemency for Mr.

Smith. Appendix 28.

Echoing these concerns, Ohio Supreme Court Justice Paul E. Pfeifer – a former

Republican legislator deemed to be the “father of Ohio’s death penalty” – has recently

recommended full review of all the cases of people sentenced to death in Ohio to determine

which cases warrant execution and which should be commuted to life without the possibility of

parole. See Johnson, “Death Row Cases Should Be Reviewed,” Columbus Dispatch, May 15,

2010 (available on the website of the Columbus Dispatch, www.dispatchpolitics.com). In light

of the adoption of LWOP after many of the people on Ohio’s death row had already been

40
sentenced to death, the article notes, “Pfeifer said the majority of the old cases, had they been

tried today under current law and societal standards, would not have resulted in capital

punishment.”

Accordingly, even apart from the other grounds for clemency, the Board should

recommend a commutation for Mr. Powell. Had his jury been give the LWOP alternative to the

death penalty, he would not have been sentenced to death.

However, the Board should not consider this ground apart from the other two grounds

presented herein, because all three grounds are interconnected. Mr. Powell is an indisputably

good person in prison, as good as any person could be, having made innumerable positive

contributions to people in and out of TDCJ. He indisputably does not pose any risk of danger if

he is allowed to live out his life in prison. And, had his most recent jury been given the option of

sentencing him to live out his life in prison, the jury would not have been unanimous for death,

and for that reason, Mr. Powell would have been sentenced to life. For these reasons, the Board

should recommend commutation of Mr. Powell’s sentence.

MR. POWELL’S REMORSE

While not a ground for commutation, Mr. Powell’s remorse for the killing of Officer

Ablanedo does bear mention, because it provides important confirmation that Mr. Powell is the

kind of person inmates on death row and people in the world believe he is. Many people quoted

in this application have referred to Mr. Powell’s remorse for the killing of Officer Ablanedo and

its terrible consequences for those who loved him. Mr. Powell has felt this remorse for many

years and wanted to express these feelings to the Ablanedo family for as long. However, as

41
mentioned by Judith Filler (Appendix 19), Mr. Powell’s attorneys would not allow him to do so

before his legal proceedings were final.11

In the wake of the conclusion of litigation for Mr. Powell, he did write a letter to the

survivors of Ralph Ablanedo’s murder, and with the assistance of the Travis County District

Attorney, the letter was delivered to the family. A family member decided to make the letter

public. See Plohetski, “Death Row Inmate Apologizes to Family of Officer He Killed in 1978,”

Austin American Statesman, January 28, 2010 (http://www.statesman.com/news/local/death-row-

inmate-apologizes-to-family-of-officer-198804.html). For this reason, counsel is violating no

confidence by including Mr. Powell’s letter in the appendix to this application. See Appendix

29. The letter is too long to reproduce in the text here, but this is how it begins:

Dear families Ablanedo and Mills,

I am infinitely sorry that I killed Ralph Ablanedo. I shot Officer Ablanedo and I
take responsibility for his death. In a few frightful seconds, I stole from you and the
world the precious and irreplaceable life of a good man, and destroyed your worlds of
shared love, dreams, and possibilities.

Every time I have seen you in the courtroom, your pain has been palpable. I am
rightly rebuked. There is no excuse for what I did. Counsel have always advised me to
show no emotion, but my heart breaks whenever I contemplate the enormity of your loss.
In thirty-one years of imprisonment, I have had much time to contemplate my sin....

11
Counsel’s advice to Mr. Powell is one that arises out of the way the legal system works
and how the constraints imposed by it sometimes collide with the needs of the survivors, and
indeed the needs of the offender, concerning apology and expression of remorse.
If Mr. Powell had taken full responsibility with his own words before he lost the last
round of his appeals—in March of 2009 – he could have compromised himself legally. Mr.
Powell was litigating a very strong issue that could have resulted in a new trial on guilt and
innocence. Had he made the apology before that litigation concluded, and won, he would have
compromised severely his legal options at the new trial.
Of course, both the survivors and Mr. Powell needed him not to be so constrained, but the
legal system does not protect communications between an accused person and the survivors of
the murder with which he is charged.

42
Appendix 29.

Counsel urges the Board to read the entire letter and to use it as a measure of the accuracy

of the views of Mr. Powell held by the twenty-four people who have been quoted herein.

CONCLUSION

Mr. Powell requests, on the basis of the grounds set forth herein, that the Board

recommend commutation of his death sentence.

In the course of considering his request, Mr. Powell requests a hearing before the Board

as provided for by Rule § 143.57(g) of the Board’s rules. He also requests a meeting with a

Board member as provided for by Rule § 143.57(e) of the Board’s rules.

Respectfully submitted,

__________________________
RICHARD BURR
TBA No. 24001005
2307 Union Street
Houston, Texas 77007
(713) 628-3391
(713) 893-2500 fax

Counsel for David Lee Powell

43
Appendix 1
Appendix 2
AFFIDAVIT OF Lester Bower

1. My name is Lester Bower. My TDCJ number is 000764. I am currently incarcerated on Death

Row at the Polunsky Unit. I arrived on Death Row May 10, 1984. I was incarcerated on Death
Row at the Ellis Unit prior to Polunsky.

2. When I arrived on Death Row in 1984, David was my very first neighbor. David is an
extremely smart man with a very high I.Q. I’m not as smart as him but found we could carry on a
conversation using words I couldn’t use with anyone else. His intelligence helped me along and I
gravitated toward him.

3. In the many years I have known David I have seen him become increasingly open and
gregarious. He didn’t isolate himself. David is a real repository of knowledge and was free with
his advice. He is someone that people know they can go to and David will most likely have the
answer to their question.

4. David has dedicated a lot of his time to helping others. He does not waste his time. He is
always reading scientific digests. He is a very inquisitive person and I was drawn to that. You
can read something in a book but still not understand it. You could go to David and he could
explain it. I would regularly go to him with legal issues. We would discuss it and he would ask
me what I thought too.

5. I have been able to confide in David. I’m comfortable talking to him and I know that what I
tell him, stops with him.

6. Dave is probably unequalled here education-wise. There are not many like him. His
knowledge and high I.Q. make him unusual and a resource.

7. I love David like a brother. I have seen him grow as our hair has turned gray together. He is
an open person who has encouraged me to be more open too. David makes a big difference to the
people that interact with him. I have valued him greatly as someone who challenges me.
Appendix 3
AFFIDAVIT OF Noah Espada

1 My name is Noah Espada, I am over 18 years old.

2 I have been incarcerated at the Polunsky Unit for the past 5 years. I met David Powell a few
days after I arrived here, and a few months after that we were neighbors. When David and I were
neighbors, we spoke every day. We were neighbors for about a year, then he moved pods but we
stayed in contact.

3 David is an incredibly intelligent person. There was nothing that I discussed with him that he
knew nothing about. He helped lead me to the pursuit of self education. He did this by
stimulating my mind, he subtly inspired me through conversation.

4 David helped me be honest with who I am here and now. He did this by leading by example.
Watching David’s routine, and listening to him, made me more conscience of myself and my
place in this world. David’s routine was a lot of physical and mental excercises, healthy eating,
and he stayed current with the media.

5 I trust David Powell. I trust him as a person that doesn’t live entirely selfishly. He considers
where he is at, and who is effected by his actions. There are a lot of irritable people here, but
David is able to communicate with people in a rational way. The commissary lady and most
prison officials treat David with an exceptional amount of respect above that of other prisoners.

6 After the 8th grade, I started to be home schooled, after having unfruitful academic experiences.
As all learning depended on myself, I imagined at times the perfect teacher and mentor. Through
the years I never found it, but in meeting David Powell I have come to realize such a person is
possible. When I met David, I felt he was a teacher I could follow, and that he would lead me to a
place not questionable to myself or to the world outside.

7 Meeting David showed me that learning never ends. He showed me this not just about
academic subjects, but learning about yourself and living more positively. He showed me that life
in prison is more appropriately lived for the people who care about me on the outside world,
friends and family.

8 There was a time when David noticed that I was becoming affiliated with a counterproductive
group of people. He brought this to my attention so that I would refocus my attention to my
friends and family knowing that anything thoughtless I did would hurt them more than it would
me.

9 David is a very community minded person. When new people arrive on death row, he has
helped them in basic needs like food, clothes, and hygiene. When people first arrive on death
row, they aren’t the most stable, and these things that David did for them brought them down a
few notches.

10 I care for David and consider him a mentor. Regardless of what happens to David, I will
continue the legacy he left within me to help others in positive and progressive ways, for
themselves and the community.
Appendix 4
AFFIDAVIT OF CLEVE WASHINGTON FOSTER

1. My name is Cleve Foster, TDCJ # 999470. I am currently housed on death row in the
Polunsky Unit of TDCJ. I have been on death row since March 2004.

2. I first met David Powell about 1 year after I got here, sometime in 2005. We were on the same
section and had rec together one day and I told him my gran could do better push-ups than him.
Ever since then we’ve been friends, he calls me “youngster” and I call him “Old Man Powell”.

3. David is like an uncle to me, I have known him 5 years, he supports me, emotionally and
legally. I am actually from Kentucky, I got no-one here, no-one so I rely on David heavily. I
have no family here, I rely on David for support, he talks me through to another day, he talks me
through, and out, of bad times - like when my appeals are denied. David will calm me down
when I’m pissed - he’s always right.

4. David is a positive influence on people here on death row, especially the youngsters. When
new guys come to death row some of the gang old times might pull them aside and try and fill
their heads with crap. David will try and show them that they don’t have to go down that avenue,
they don’t have to go with the gangs or drugs and alchol. David will find out what they like and
teach them to fight for themselves. Most of the time they listen to him, I listen to him. He taught
me to fight for myself.

5. When David hears peoples’ problems he will help them, he tells them what cases to look up or
tell them he is in the same predicament and how he handled it. David sends them letters with
instructions 2 or 3 days after he hears about the problem.

6. When there have been rifts going on between two people David will wait for the fire to die
down, then, softly-spoken, he will tell them what he thinks, and you can tell what he is saying is
well thought out. These guys will be silent and listen and process what he has said, and then say
“that old fart’s right”. Guys here listen to him.

7. David is always thinking of other people and shares his stuff, like his newspapers - I have
waited a month before for his newspapers to make the rounds. People here don’t mind waiting
for David’s newspapers, by the time he is finished with them he has comments everywhere.
David will circle articles of interest and put the name of the guy next to it and a big arrow
pointing to it with a comment about why he should look at it. He is always thinking of others
like that. David cuts out pictures of outside scenery for me and makes sure I get them, he does
this because he knows I like to paint outside scenery. So David will send me these pictures and I
will paint them if I have the supplies.

8. David is easy to talk to and can and will talk about anything. When new kids get here they are
standoffish and David talks to them, tells them not to be scared, tries to calm them down.
Appendix 5
AFFIDAVIT OF Ramiro Gonzales

1 My name is Ramiro Gonzales. I am over the age of 18.

2 I have been incarcerated at the Polunsky Unit since 2006. I have known David Powell, who I
call Mr. Powell, since 2007.

3 Mr. Powell and I frequently met and spoke in the day room in front of my cell. I would spot
him while he worked out, and we spoke for 2 or 3 hours about 5 times a week. This frequent
contact lasted for about a year and a half.

4 I have never had as much help as I received from Mr. Powell in the year and a half that we met
and talked. He has helped me more than my own family.

5 My vocabulary and understanding of many subjects has improved tremendously as a result of

interacting with Mr. Powell. He shared many reading materials with me, materials about poetry,
theater, and philosophy. When I didn’t understand a word, I would ask Mr. Powell what it meant,
and he would have me use it in a sentence.

6 I call David Powell “Mr. Powell” because I consider him a teacher, an elder who deserves
respect, and a father figure. My family does not have any contact with me, but Mr. Powell gives
me an incredible sense of belonging by listening to me, talking to me, and opening up to me on
an emotional and intellectual level.

7 Mr. Powell taught me proper English. He showed me how to write a letter properly, without
grammatical errors like run-on sentences. These were things I didn’t learn in school, but Mr.
Powell showed me the importance of these things and explained them to me in a way that I could
understand. He was my English teacher.

8 Mr. Powell used to give me scripts to read from plays. I would read them and then talk about
them with Mr. Powell. He actually asked me for my opinion and then listened to me. This made
me open up to Mr. Powell, and he would explain to me other points of view about the play. This
gave me a sense of belonging that doesn’t exist in prison, and that never existed with my family.

9 Mr. Powell is a man that gives his life for his friends. When a person gets a execution date,
they stop speaking to others and they start to have very negative thoughts. Mr. Powell, although
he has an execution date set, continues to give people advice. He continues to help people with
their emotional struggles, despite his own inner turmoil.

10 Mr. Powell has taught me and shown me what love is. He has shared with me emails and
letters from his partner, showing me that love is shown through actions. He has inspired me to
write my own family despite conflict we have, and to show them my love even when they don’t
write back, and to continue to write them.

11 Mr. Powell has had a positive influence on many of the people incarcerated here. He will
conform to your level of vocabulary to communicate with you. He has impacted a lot of people
on Death row in a positive manner. If you listen to Mr. Powell, he’ll come to you.

12 I’m currently corresponding with 4 penpals who have asked me for advice. They are college
students and mothers from Europe. I opened myself up to them, and in response they have come
to me asking for advice on personal issues. Sharing the emotional things I have experienced with
Mr. Powell to my penpals showed them that I can get on an emotional level, and this is what
helped them open up to me. It is because of Mr. Powell that I have been inspired to help others.

13 I consider Mr. Powell a father figure. My biological father was incarcerated for most of the
first 18 years of my life. Mr. Powell gave me a warmth of acceptance that allowed me to open up
without fear. Mr. Powell listened to me and taught me things that I have never had the
opportunity to do with my own father. Mr. Powell taught me that a man listens, and that a man
can cry and stand straight. When an individual here passed a message to Mr. Powell that I wanted
to talk to him, they would say “hey Mr. Powell, your son wants to know...”

14 Mr. Powell left my pod back in March, and it hurt to see him go, to see him walk away from
the pod knowing that he had an execution date. Everything that Mr. Powell has taught me is my
foundational genesis. Excercising these character traits is something I enjoy. Mr. Powell taught
me to use my time wisely, that time doesn’t wait on you and it shouldn’t be wasted.

15 Just before Mr. Powell left my pod, I consulted him about writing a letter to the victim’s
family. The first thing he did was make sure I was sincere in my apology to the family.

16 If given the opportunity to speak with Mr. Powell again face to face, I would thank him for the
impact he has had on my life.
Appendix 6
AFFIDAVIT OF Bobby Lee Hines

1. My name is Bobby Lee Hines, TDCJ # 999025. I am currently housed on death row on the
Polunsky Unit of TDCJ. I have been on death row since April 1992. Prior to the Polunsky Unit, I
was on death row on the Ellis Unit.

2. I can’t really put a time on when I met David Powell, who I call David. It was on the Ellis
Unit, I been on Wings with him, he’s an older man, real laid back, he’s older.

3. I might not see David for years, he might be on B pod, and I on D pod and I might not see him
for 3-4 years. In the past 10 years I have maybe been in contact with him maybe 4 of the 10
years. But when I see him, he always takes time to talk to me.

4. David is an older cat, he tries to help people with their legal problems. The help he has offered
me has always been mental, like just talking to me, or legal advice. He gives me lists of cases to
look up and how to look them up, and I would take notes and take it back to David and say “I
don’t understand this and I don’t understand that” and he corrects me and puts me back on the
right track. I can never figure this stuff out but he guides me.

5. David helped me get penpals, he showed me how to write a letter, how to break it down. He
helped me put out an ad for penpals, asked me what age I was looking for, male or female, stuff
like that, he helped me do that. I tried to help someone and gave them a list of old penpal
addresses, and they all came back, wasted about 20 of his stamps. I felt like a dumbass, but I was
trying to help like David, I just assumed they was good.

6. David is a link in a chain that keeps the helping going. There’s a country song, “Hey Joe” it’s
about the chain of love, gotta keep the love going, back here we’re like that chain and David is a
link in that chain, he is always there despite any arguments or conflicts - he is always there to
help the next person.

7. David helps the new guys. When you come here from county you can’t bring any of your stuff,
just shower shoes and legal papers. So we try to get a bag together with stuff, I might put in legal
pads, someone else put in some stamped envelopes, another person puts a deoderant and
someone else a toothbrush or toothpaste and David is a part of that. He helps like that.

8. I don’t never see my family, I talk to David and he says they got their world they live in and
we got ours. We talk a lot about family, about prison life and how it changes us. He is not the
person that he describes himself as once was. To me David just about as sound a guy I know, he
ain’t gonna hurt nobody. David is respectful talking, calm-leveled, he always offer an extended
hand to help a man out.

9. Back here you can tell when someone is in a different state of mind than the day before &
David comes and says to me “You wanna talk about it?” or say “hey walk, wanna cup of coffee?”
He has done this for me. He’s my friend, he shows concern and cares about me. To me David is
a friend. It may have started that I go to him about a legal questions but then we talked about
different things and now he’s my friend.

10. When David walks into a day room it’s like someone turned the light on, it’s someone to talk
to, he’s not a dull person at all. More times than not he’ll lose me when I’m talking to him but he
seems to always zone back into your level. He can definitely knock you off your understanding
skill.

11. I’ve had to deal with a lot of executions, I’ve lost a lot of friends, but David’s execution
wouldn’t be just another day. I think about him, I pray he gets a stay or something and all I can
do is hope. I would miss his weird looking push-ups, I been around him so many years, it’d be
crazy not to see him no more.

12. I can say that in all the years I been here I ain’t never seen these group of people go to bat for
someone like this in their clemency.

13. Kirsty Davis of the Gulf Region Advocacy Center wrote this affidavit for me, but they are my
words and she has read them back to me.
Appendix 7
AFFIDAVIT OF PRESTON HUGHES III

1. My name is Preston Hughes III, TDCJ# 000939. I am currently housed on death row on the
Polunsky Unit of TDCJ, before here I was on death row on Ellis Unit, TDCJ. I have been on
death row since May 17 1989.

2. In January 1996 I went on the work program and that’s where I met David Powell, who I call
Dave. I didn’t really start talking to Dave til I got here - the Polunsky Unit.

3. Here at this Unit we have been on the same pod a few times and we have been in the same
section one time. Dave used to help me out by swapping out on rec. I don’t like to go outside its
like a hot box out there. Dave knows I don’t like it out there so if he is inside and I am outside
he would swap with me. Dave is my friend.

4. Dave always likes to help people out, he gives people anything he can, he’s given something to
eat, stamps, things like that.

5. Dave let me review some of his legal papers, stuff that’s been filed so that I knew the format to
file my own pro se Writ of Certiorari. He let me look at his State’s Response and his reply to
that, just for format.

6. I been outside with him a few times, times when I had to go outside, and I would talk to him
while he did his work out - sit ups, dips - he in better shape than the young guys around here.

7. Dave is a strong man, mentally and physically, if he hadn’t of helped me stay focused I
probably would have lost my damn mind. After being locked up as long as he has I feel he’s
been punished enough and should not be killed.
Appendix 8
AFFIDAVIT OF Roger Wayne McGowen

1. My name is Roger McGowen. My TDCJ number is 000889. I am currently housed on death

row at the Polunsky Unit. I arrived on death row in 1987. Prior to Polunsky, I was on the Ellis
Unit.

2. I first met David Powell in the late1980s on the Ellis Unit. The way that we clicked, it was like
I’d always known him and from the way he talked to me, it was as if he’d always known me.

3. David has been a very important person in my life. Whenever he was around me, he was
always trying to teach me. He tried to teach everyone around him and to enrich their lives. He
preferred human interaction to anything else. He would rather talk with someone than listen to
the radio. He openly showed his humanity.

4. 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, learn more so that the next
time I saw him, I could be more on his level. David is so intelligent and knowledgable that of
course that was impossible, but he inspired me to try.

5. I have had a lot of intelligent conversations with David. Most guys back here are not able to
talk on that level. We’d spend two hours talking about law and politics. He’d always take me
through things I didn’t understand - dissect it and walk me through it until I got a clearer idea.
He’s my professor. No matter what he’s doing, he will always make time for you.

6. I saw David a lot on Ellis because I was a porter. Every time I saw him he was reading,
studying, talking to someone about the law. In all the years I have known David I have never
seen him read a novel. He reads about innovations in science a lot - he is always learning and
sharing his knowledge with others. He does not sit back and idly waste time.

7. David and I could always pick up where we left off. He was the easiest person to do that with.

8. David always engaged me in conversation. He never talked at you, always with you. We’d
discuss a topic and he gave me other ways to think about things so you wouldn’t get tunnel vision
or one-dimensional thinking. I never once felt stupid around David, despite his extraordinary
intelligence. I just always anticipated learning something from him. He was like one of your
favorite teachers at school, where you couldn’t wait to get to their class. David is one of the most
knowledgable people I have ever met.

9. Sometimes I wouldn’t feel like going outside but David would encourage me to go outside
with him. I was always glad that I did because I would come back feeling, “that was a nice
lesson.”

10. You can always tell when someone is feeling down and David was someone who would
reach out to people, tell them to keep hoping, to keep their head up. David is one of the most
kind people I have ever met. He would always be aware of the people around him. He is aware of
the power of words and always considered that before he spoke. He has so many beautiful
qualities. There aren’t many people like him.

11. David’s persona, his whole being, is about teaching. He sees everything as a learning
moment. He would go to people who needed guidance. There are people back here in gangs,
controlled by other people. He wouldn’t shy away from them. He saw potential in people like
that and encouraged them to think about things in another way.

12. David would get the court rulings and bring them to the day room. He would pass them
around and after every one had read them, discuss them and engage us in conversation. He
regularly helped guys with their legal work - guys that didn’t understand. I’ve seen him stand
patiently and tell people something over and over and over again until they get it.

13. I really feel that David is my teacher, but he is also a very good friend. He is witty and can
tell a joke. He is so knowledgable that I can talk to him about anything - law, politics, but also
football and music. He’s very easy to get along with.

14. I’m not someone who opens up too much, but I knew if I did have a problem, I could go to
David and he was someone that would give me a meaningful, straight answer. David just has a
comforting aura. It is a comfort to me just to have him around, to have his presence.

15. David constantly stayed on me about my diabetes. Anything he read about advancements in
diabetes treatment, he would send to me. He would tell me what was good for me to be eating.
When we exercised, he encouraged me to go the extra mile because of my diabetes. He was
always conscious of my health and let me know he cared about me.

16. Sometimes I would see David struggle too. A lot of people back here shut people out when
they have something on their mind, but David let people in. He is receptive to everyone. That is a
rare quality in here. David has a core that doesn’t change. Most people here are guided by peer
pressure. When David does something, he will make sure it’s on the side of right.

17. After I had spent time with David I would sit and think how many people could benefit from
what he had taught me that day. I feel that he has so much love and wisdom in him and it was
not wasted on us, but I felt it was a terrible loss that more people couldn’t benefit from a person
of his capacity.

18. When we were on the Ellis Unit, people with an execution the next day could call a few
people to their cell to visit with them. I know David comforted a lot of people at Ellis before
they made their transition, speaking with them through the bars. It is striking how soft-spoken
David is, but there is steel in him. He gives people comfort and strength. After all these years
David has kept his humanity and if anything, it has grown.

19. I can’t think of anyone that has given me more - intellectually and spiritually. David still has
so much to offer. There are so many people that can learn from him.
20. David has taught me you have to look for the good in all things. The only thing you can do is
try to do more good and he showed me that by example. I know David does not harbor hate for
anything or anyone. I have never heard him say a bad thing about anyone or anything. David has
definitely made me a better person.

21. What David has given me I’ll never forget. I love, respect and cherish David. My only wish
is that I could spend more time with him.
Appendix 9
AFFIDAVIT OF Rodney Reed

1. My name is Rodney Reed, TDCJ # 999271, I am currently housed on death row on the
Polunsky Unit of TDCJ. Prior to being on the Polunsky Unit I was on death row on the Ellis
Unit. I have been on death row since May or June 1998.

2. I met David Powell sometime in 1999 while we were at the Ellis Unit, he was my next door
neighbor for a few months until we moved over here. We started conversing after he heard I was
from Bastrop, and he said he was from Austin, and we just started talking.

3. David showed me info on legal cases and that’s how I started trying to study law myself, he
inspired me to dig deeper into my case. David has been an inspiration to me, to not just sit back
and watch my attorneys. David encourages me to stay on top of my life, my family, my case -
everything. I take everything he says whole-heartedly.

4 Sometimes we get rec together and we just sit and talk - the old dude be trying to get his work
out on. We would talk about his penpals in California, about politics, you know a lot of guys
here aren’t politically inspired, me and David are concerned with the economy and the struggles
of our families, we are on the same level in that way. We got family out there and we talk about
their struggles. I know if I got to talk to him right now we would be talking about that
immigration law in Arizona.

5 I consider David a friend, I never heard anything come out of his mouth in a negative light. He
is an honest person. He is a conscious thinker and he gives me intelligent, stimulating
conversations. Our conversations assure me that I’m not the only one thinking about what’s
going on in the world around us - we talk about grown men things.

6. David’s friendship means a whole lot to me, I been knowing David 11 years and we never had
a disagreement. He’s a friend to me where my freeworld friend’s and family can’t be.

7. David reminds me of Mr. Rogers of “Mr. Rogers’ Neighborhood”. He is articulate, very

intelligent - we have had some pretty indepth conversations.

8. Our friends and family don’t really understand what it’s like here emotionally. I have always
tried to distance myself from others here - I only consider a handful of guys here as close
brothers, David is one of them.
Appendix 10
AFFIDAVIT OF Mariano Juarez Rosales

1. My name is Mariano Rosales. I am currently housed at the Michael Unit serving a life
sentence, but I was on death row up until last year.

2. I spent 24 years on death row, and I knew David for just as long. I would call him David, but
some of the younger guys, they would call him “Mr. Powell”, out of respect. I can’t remember
when I first met David, but we’ve been friends for 24 years & he was always helping people. I’m
70 years old now.

3. David, he would buy little things from the commissary and give it to some of the other guys,
like candy, or soup. You just know who goes and who doesn’t go to commissary, and David
would give them something small, like an icecream or soup. They wouldn’t ask for it, it was just
out of his good heart.

4. I used to be a barber on death row, and I would cut David’s hair. He liked the way I cut his
hair, and even after I stopped being a barber, I would cut his sideburns for him. He would say to
me he just couldn’t cut them straight. I would pass by David’s cell and he’d say “Rocky, Rocky”
- that’s what they called me - “will you do my sideburns?”. And I would reach through the bars
and do it. I did that for David several times.

5. I remember that my last days at Polunsky, we would walk around the yard, and talk. One of the
last things we talked about, was hopefully getting off death row, that one day we might be talking
about things going on in Polunsky.

6. David had a lot of hope. He just stayed positive. I was going through a depression, and David
was the one who told me to go outside. He would tell me to keep seeing the psychiatrist, they
can help you.

7. David said to me, “I don’t know if I’m helping you or you’re helping me”, because we would
talk together. But I knew it was him helping me. Even though I was older, he was so wise. To
me he was just a good man. And he was real talented. Just being there, being who he was
helped me.

8. It meant a lot to have David there. He just understood.

9. The guards would treat him as a friend because David carries himself well. The others on
there don’t carry themselves like David. He was a gentle man. I’m older than David, but I felt
like he was more experienced than me in the way he carried himself.

10. If I had the chance before I left Polunsky, I would have thanked David, for the support and
friendship he gave to me, but I didn’t get a chance. David is a good friend to me.
Appendix 11
AFFIDAVIT OF VAUGHN ROSS

1. My name is Vaughn Ross, TDCJ #999429. I am currently housed on death row on the
Polunsky Unit of TDCJ. I have been here since October 2002.

2. When I first got here I was on the same section as David Powell. This was the first time I met
him and I have known him since.

3. I first remember David giving out candy, it was around Halloween and he was giving out the
candy bars for trick or treat. It was surprising to me because you always hear bad things about
people on death row, I didn’t expect them to be kind or giving, I didn’t expect him to be
celebrating the holidays and giving out candy.

4. Before coming to death row I had never been incarcerated before. David changed my view of
what people on death row are like, you see on the media they make people look like monsters,
inhuman, but David is kind, giving and understanding. David will talk to anyone, give anyone a
chance. He is one of the better characters here on death row.

5. When I came from county I had nothing, I wasn’t allowed to bring anything except my legal
papers, my pictures and my bible. The guys in my pod, including David, gave me things -
shower shoes, toothpaste, toothbrush, soap, shampoo, pencil, paper, stamp, envelopes and even
food to snack on - they gave me everything. This changed my impression of people on death row
and David was a part of that.

6. David helped me adjust to death row, I was new here, I didn’t know what was going on, I
didn’t know what would go on, David helped relieve some of that tension and I thank him for
that. When you get to death row you can get around the wrong people that make it bad to be here
and then you can get around people like David who can make it a good, positive experience.

7. We get to go to commissary here where we can buy stuff, if David knows someone didn’t go
he’ll send them something - an ice cream, or anything. David has even asked ahead of time if
people need anything and will get them stuff.

8. With me and David, I like to pick his brain, it helps keep me alive, stops me from shutting
down. He stimulates me, he keeps me going. Me and David have similar backgrounds - I was at
Texas Tech studying architecture when I got arrested so we have bonded with each other having
similar backgrounds like that. David is a good friend to me, just recently we got outside together
to talk, I can actually talk about things with David like politics, the legal system, we can have
little debates. We also work out a lot, he does these upside down push-ups, he stands on his
hands and pushes up.

9. If you ask him a question he’ll do his best to point you in the right direction - and he’s
normally right, he knows what he’s talking about. David would help anyone, he is not selective
in who he helps, in here certain people group together, David is different like that he doesn’t
discriminate on the grounds of race or age or what you’ve done.
10. David is someone you want to be around, he keeps you going, he has that life in him, he has
that spirit.
Appendix 12
AFFIDAVIT OF Charles Thompson

1 My name is Charles Thompson. I am over the age of 18.

2 I am currently incarcerated at the Polunsky Unit. I have been on Death Row since May of
1999. I have known David Powell since 2001.

3 In 2003, I was going through Hepatitis C treatments, taking Interfusion shots. During this time
I was embattled with depression, dealing with anger issues due to medication and David Powell
was a crutch of a friend during this time. David pushed me to exercise in order to cope with the
depression and anger. When I was feeling too down to go outside and work out, David would
say to me “you young people have no staying power”. This motivated me to get up, go out, and
show the old man. This support from David lasted before, during, and after my treatment.

4 David has helped me with personal crisis. A girlfriend of mine left me for another man. I was
devastated. David told me the reality of the situation, that it’s hard to keep a young girl happy
when you’re locked up. He had me look at myself, he told me “you’re walking around like a
zombie, you’re not studying, reading, working, you need to snap out of it”.

5 Since then he’s counseled me in my current relationship. David has given me advice on how to
show my girlfriend that I care being that I’m incarcerated and don’t have contact with her. We
share ideas on how to show our girlfriends affection, such as the 29th sonnet by William
Shakespeare which David introduced me to.

6 David is a positive influence on Death Row. People go to him for advice, legal advice, and
also spiritual advice. A lot of guys don’t understand the legal arguments of their own briefs, but
David is able to break it down to them in lay man’s terms. When guys have questions about their
appeals, they say “go ask the professor”, the professor is David Powell.

7 David is a mentor to me on many levels, personal, legal, spiritual and intellectual. He is “the
old wise one”, he is my go-to guy. David has inspired me to carry the torch, and continue to
counsel and mentor those in need.

8 It would be a tremendous loss not only to prison society, but to society as a whole, to take away
a life that has touched so many lives.
Appendix 13
AFFIDAVIT OF Robert Will

1 My name is Robert Will and I am over the age of 18.

2 I have been incarcerated on Texas Death Row at the Polunsky Unit in Livingston Texas since
January 2002. I met David Powell shortly after arriving here; we were housed on the same
section. Over the approximately 8 years that I have been here - even though I have been moved to
different cells a number of times - David and I have stayed in touch.

3 When I was out in the “free world” I attended college for a year - this sparked an interest within
me for learning. Sadly enough, this environment is extremely deplorable - anger and hatred
pervade throughout Texas Death Row. Animosity amongst inmates is common and antagonistic
behavior by prisoners towards staff members is a frequent occurence. When I first arrived here I
was shocked by this. Constant scream-talking and general nonsense was what went on daily. I
thought “I’m going to lose my mind if I don’t find something to read!” I expressed this to my
neighbor and he said “You need to talk to David Powell, he’s the guy downstairs in 46 cell.

4 The next day I met David. It was very evident that he was not a “common prisoner”. I asked
him for some reading material and David introduced to me to several great writers including
Dostoyevsky and Gandhi - writers who I still read today with a passion. I quickly learned that
David - or “Professor Powell” as many call him - was quite an extraordinary individual.

5 Over the 8 years that I have known David I have seen him steadily work to be a positive
influence. Many times he has helped relieve tension between inmates and between officers and
inmates. One particular occasion comes directly to mind: A young rowdy guy came out to the
recreation cage. (Which is situated directly in front of the housing cells) He was extremely upset
and belligerent and it was very obvious that a bad situation was going to occur between him and
staff members.

6 A few other individuals were actually intensifying the situation with negativistic comments.
David came to his cell door and acted as a rational calming voice and completely discharged the
situation and calmed the guy. He has done things like this a countless number of times over the
years but this particular instance has stayed with me because the inmate was speaking about
engaging in violence against staff members.

7 David has always strongly promoted the idea that all forms of violence are completely and
thoroughly unacceptable. David has taught others that if, say, a new policy change occurs that
guys are upset with, they should never take this anger out on staff members.

8 And indeed I do mean “taught” in the truest sense of the word - David is a mentor and
educator. He has helped guys learn to read and advance their education. (A number of those
who he has mentored to have recieved life sentences and two have been released from prison;
they were exonerated).

9 David has been a personal inspiration to me as well. He taught me that it is possible - no

necessary - to live a positive and productive life even while on Death Row. Since being here I
have become an artist, poet, writer and have followed in David’s footsteps as a mentor. I have
become a certified Yoga Instructor and I am currently taking University courses via
correspondence and I have been maintaining an A+ average. David has definitely been
instrumental in helping me achieve all of this.

10 Indeed, he has mentored to many individuals here. Even though David is scheduled to be
executed he is still acting as an educator and positive influence. If David is executed his death
will take away a person who has had a profoundly positive impact on Texas Death Row.
Appendix 14
AFFIDAVIT OF Clinton Young

1 My name is Clinton Young. I am over the age of 18.

2 I have been incarcerated at the Polunsky Unity since 2003. I met David Powell in 2004, and
we’ve had frequent communication since then.

3 David is a very passive person. When a situation of conflict arises here, many inmates choose
to resort to violence or a physical refusal to comply. David is a person who is able to maintain
his composure, and he resolves conflict through the proper channels.

4 I remember one occassion when David was being denied his recreation by an officer. Instead
of lashing out on that officer like many inmates do, David calmly requested to speak to a higher
ranking official. When the ranking officer spoke with David, he aired his grievance calmly and
in a rational manner. The officer checked that he was owed a recreation, which he was, and he
was given his recreation.

5 In the past I’ve been known to not be the most compliant individual when it comes to following
the rules. After moving back to the same section as David Powell, my interactions with him have
persuaded me to direct my energy to a more positive and productive path of solving my
problems. In the last year I’ve maintained a level I classification, which is the most privaledged
level. Recently, even the guards have complimented me on my good behavior.

6 Instead of focusing my energy on resisting the policies that I disagree with and feel are unjust, I
have diverted my energy toward more noble causes. I spend my time raising awareness toward
certain non-profits like Smile Train, an organization that provides cleft surgery for under
priveladged children.

7 It is clear to me that David is remorseful for the death of the police officer. Not only for the
loss of the officer’s life, but for the pain it has caused the officer’s family members. I see this
remorse in David through conversations with him. When he talks about how young the officer
was and the pain the officer’s family goes through, the degree of empathy David has is clear by
the emotions he displays.

8 David is a positive influence to other inmates, and not only because of his age; but also his
passive and quiet nature, I personally do not consider him a dangerous person and nor does any
other officer or inmate that I know.
Appendix 15
Appendix 16
Appendix 17
Appendix 18
05/23/2010 07:00 3153645287 PAGE 01

Frances Tarlton FareDthold

Attorney At Law .
2929 Buffalo Speedway, Suite 1813
Houston, Texas 77098
(713) 621-5608 (Fax) 439-0810

Ro: David Lee PoweU

Texas Board of Pardons Ilnd Paroles

8610 Shoal Creek Boulevard
Austin, rx 78757

Dear Board Members:

I am writing with regard to the pending execution of David Lee Powell on June 15,2010.

r met David Powe1l20 years ago during his second tri.al for murder of the Austin Police
Offioer Ralph Abelanedo. I had been told he had been a bright and gifted student who
had killed a policeman whose mother, widow and children suffered an irreparable loss.

On the basis ofwhatI had observed since meeting him, I testified in his behalf at his trial
on sentencing in 1999, Since then I have followed him as he was moved from Austin to
Huntsville to the Polunski Unit in Livingston.

As I look back over these years he has taught me so much about the human condition. He
practices his non-violence in his speech, his articulation of his thoughts as well as his
actions. In. 32 years as an inm.ate he has been a model of good behavior.

Often in our discussions he is the one who will gently point out that there are other
positions to consider, ones that I had not considered. For me he has been a teacher in his
patience, forbearanoe and equanimity.

In out visits over the years the tables were turned. 1 did not bring the outside world to
him. He taught me by setting a standard as a caring and perceptive human being who
reached out to help those incarcerated with him and to share his thoughts and projects
with those who Iive outside the walls.

I urge you to recommend clemency.

His living in no way relieves him of the burden of the suffering he has caused. His living
by example to many others can lead the way to other lion' violent lives, I urge you to
examine the papers that are part of this clemency plea.

Sincerely Yours,

Frances Tarlton Farenthold

Appendix 19
Appendix 20
State of Texas

County of Harris

. Affidavit of Naomi E. Terr

On this day personally appeared the undersigned, who after being duly

sworn, stated under oath as follows:

I am licensed to practice law in the state of Texas. I am a bilingual and

bicultural Mexican American. I understand and am fluent in both the Spanish

language and the English language. To the best of my lrnowledge and belief, the

following statements in the English language have the same meaning as the

statements set forth in the Spanish language in the attached letter dated May 23,

2010 from Yolanda Sharp to the Texas Board of Pardons and Paroles:

May 23,2010

Texas Board of Pardons and Paroles

8610 Shoal Creek Boulevard
Austin, Texas 78757

Dear Board Members:

I met David Powell approximately 32 years ago, when I worked at Circle K

(Convenience Store). I am 85 years of age.

David was a customer of Circle K when we met. He gave me checks without

funds. When David was in j ail here in Austin, he called me by telephone to
apologize and to tell me that he wanted to pay me what he owed. Thinking that he
found himself in a difficult situation, I accepted his apology, but I did not accept
the money he was offering me.

1
David and I established a friendship. I consider that David is a good person and
very good-hearted. It is for this reason that I ask you and beg that you grant him
clemency.

I have the hope that you will read my letter and that you can grant clemency to
David.

Many thanks for reading my petition.

Respectfully,

[Signature]

Yolanda Sharp
910 Maryland Drive
Austin, Texas 78758

I declare under the penalty of perjury that the foregoing is true and correct.

SIGNED this 23rd day of May, 2010

AJr-:-~R
Naomi E. Terr

SWORN TO AND SUBSCRIBED before me, a notary public, on this 23 rd day of

~ay,2~10. ~

~C ary Public

My commission expires: 1 /zt ,1001'3

2
Appendix 21
Appendix 22
Appendix 23
 May 21, 2010

Texas Board of Pardons and Paroles

8610 Shoal Creek Boulevard
Austin, Texas 78757

Honorable Board Members:

I am writing with my most earnest and fervent plea for you to recommend clemency
for David Lee Powell. All that I have ever known and experienced of David over the
last fifteen years proclaims clearly and thunderously that this man should not be
executed, that he should be granted mercy. Let him live, even within the dark and
desperate walls of prison. Let him continue to serve humanity and to offer some
small compensation for the precious life that he took.

When I first came to know David through a mutual friend back in 1995 in Austin,
where I was completing my Ph.D. at the University of Texas, I have to admit that I
was a bit apprehensive. I had never had any prior contact with anyone under
criminal supervision (in fact, I haven’t been professionally or politically active with
regard to the criminal justice system in general or the death penalty in particular). Yet
when we began communicating by telephone I was immediately struck by David’s
unpresuming manner, and he consistently demonstrated sensitivity, thoughtfulness
and warmth. I never felt that he was asking anything from me. We didn’t discuss his
case, but we discussed my academic work, my new experiences with teaching, and
the general state of the world, including the criminal justice system. Eventually, we
learned about each other’s personal lives as well. I hardly anticipated that he and I
would develop a profound friendship that has lasted 15 years!

I felt fortunate to be able to see him several times at Travis County Jail while I was still
in Austin, which cemented our bond of friendship. I moved to the Seattle area in 1998
and have kept in regular touch with him since then, and have even been able to travel
to see him in Livingston on a few occasions that have been both difficult yet
meaningful.

David has been an enduring presence in my life and consciousness over all these
years, a reference point for how dramatically and quickly life can be overturned or
even destroyed. We all have hopes and ideals and a sense of our own goodness as we
navigate, sometimes carelessly or aimlessly, through the waters of youth to find our
authentic direction. This was all true for David, too, and yet we know the horrific
results! To take another life, especially so senselessly, in a drug-induced frenetic,
psychotic state! So much was lost that night. Incalculable losses. First and foremost,
Officer Ralph Ablanedo’s life but also other losses for the Ablanedo-Mills families that
have continued to unfold over time. And for David’s own family, too. And must we
not also add the loss of David’s own life over the last 32 years and the beauty and
potential it had promised?
Appendix 24
Appendix 25
Appendix 26
Appendix A
Seth W. Silverman, M.D. swsilverman31@gmail.com
Google: Seth Silverman Psychiatry
5300 Memorial Drive, Suite 510 2881 East Oakland Park Blvd., Suite 402
Houston, TX 77007 Fort Lauderdale, FL 33306
(713) 528-1188 (954) 315-1743
(713) 522-5764 (fax) (954) 315-1744 (fax)

CAREER MILESTONES
Evaluation, diagnosis and treatment of alleged perpetrator, who was listed as one of
‘America’s Most Wanted’-by John Walsh. The clinical contact occurred during the
alleged perpetrator’s initial incarceration, 2010
Evaluated civilians returning from employ in Iraq, 2008-
Provided ongoing psychiatric treatment to a male and female offender on Texas' Death Row,
2007-
Flown to Washington, DC to brief international press on Mental Health Issues, 2007
Interviewed on NPR (Snippet can be found by Goggling Seth Silverman Psychiatrist and
scrolling to NPR), 2007
Participated in the defense team that helped stay the execution of one inmate on Texas’ death
row, two days prior to the scheduled execution, 2007
Evaluated both perpetrators who brutally killed the creator of Curious George (cartoon
character), 2007
Appointed as expert to the International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law (The International War
Crimes Tribunal), 2006
Testified in two mental health cases that were heard by the Supreme Court of the United
States, 2003, 2007
Retained by estate in the “Anna Nicole” case, in which J. Howard Marshall’s will was
contested, 2001
Consulted by prosecution and defense on death row cases (ongoing)

EDUCATION
B.A., Brandeis University, 1971–1975
M.D., Rutgers Medical School (now Robert Wood Johnson Medical School), 1975–1979
Internship: Flexible Internship, University of California at San Francisco-Moffit Hospital,
San Francisco General Hospital, 1979–1980
Residency: Psychiatry, Baylor College of Medicine, 1980–1983
Houston-Galveston Psychoanalytic Institute, 1984-85
Fellowship: Forensic Psychiatry, University of Washington, 1999–2000

BOARD CERTIFICATIONS
American Board of Psychiatry and Neurology
Added Qualifications in Forensic Psychiatry, 2009
S. W. Silverman, M.D. Curriculum Vitae 2

Added Qualifications in Addiction Psychiatry, 2006

Diplomate in Psychiatry, 1987
EMPLOYMENT
Consultant, Fort Bend County Sheriff, Fort Bend County, TX, 2008-
Interim Medical Director, Psychiatric Services, Newton Memorial Hospital (NMH),
Newton, NJ, 2001
Contract Staff Psychiatrist, Comprehensive Mental Health Center, Tacoma, WA,
2000–2001
Contract Staff Psychiatrist, King County Jail, Seattle, WA, 2000-2001
President, the Silverman Group, P.A., Houston, TX, 1985–
Assistant Professor of Psychiatry, Baylor College of Medicine, Houston, TX, 1983–1985

APPOINTMENTS
Appointment to Fort Bend County Criminal Justice/Mental Health Initiative Workgroup,
June 2008
Performed Risk Assessment and submitted affidavit included in the pleadings in death
penalty case, State v. Cathy Lynn Henderson, which is currently stayed by the
Criminal Court of Appeal (Texas Supreme Court for Criminal matters), June 2007
Testified in mental health case concerning competency to be put to death. Case was heard
by the Supreme Court of the United States, June 2007
Appointed as expert to the International Tribunal for the Prosecution of Persons
responsible for Serious Violations of International Humanitarian Law (The
Tribunal), 2006
Adjunct Faculty, University of Houston Law School, 2005-
Adjunct Faculty, Professional Writing, University of Houston-Downtown, 2003
Member of the Society for Psychiatric Physicians Forensic Psychiatry Committee, 2003-
Court Appointed Monitor of a Conditionally Released, Not Guilty by Reason of Insanity
Acquittee, United States District Court, Southern District of Texas, 2001-2002
Member NMH Task Force to reevaluate psychiatric services, 2001-2002
Chairperson, Ad-hoc Appeals Committee to determine whether it was appropriate to deny
treatment to a patient receiving psychiatric care at NMH, 2001
Clinical Instructor of Psychiatry, University of Washington, Department of Psychiatry
and Behavioral Sciences, Seattle, WA, 2001–2002
American Academy of Psychiatry and the Law
Member, Public Information Committee, 2000-2003
Member, Addiction and Forensic Psychiatry Committee, 1997–2000
Pierce County Jail, Volunteer, Tacoma, WA, 2000
Drug Enforcement Agency (DEA), Houston-Corpus Christi Region
Area Clinician, 1993–2000
Tejas Adolescent and Rehabilitation Education (T-CARE), a non-profit residential
treatment program for adolescents placed into custody by Child Protective Service or
Juvenile Detention, Houston, TX
Consultant, 1992-2005
Cypress Creek Hospital, Houston, TX
Chairperson, Utilization Review Committee, 1999

2
S. W. Silverman, M.D. Curriculum Vitae 3

Executive Committee, 1998-1999

Director, Residential Treatment Programs, 1998
Gulf Pines Hospital, Houston, TX
President-elect, Gulf Pines Medical Staff, 1998
Clinical Director, Chemical Dependency Adult Programs, 1997
Clinical Director, Adolescent Residential Programs, 1996–97
Clinical Director, Partial Hospital Programs, 1995
Communities in Schools (CIS), Pasadena, TX
President, 1996
Member, 1990–1996
FBI Special Non-Volunteer Critical Intervention Services, Houston, TX
Area Clinician, 1996–2000
Inter-professional Drug Education Alliance (IDEA), Harris County, TX
Co-Chair with Harris County Bar Association Co-chair, 1994–1995
Member Ad Hoc Committee, paired physicians and lawyers to speak to fifth
Graders about drug abuse, 1993–2000
Resolutions Day Hospital, Pasadena, TX
Medical Director, 1994–1995
Pasadena General Hospital, Pasadena, TX
Chair, Subcommittee on Psychiatry, 1992–1994
Twelve Oaks Hospital, Houston, TX
Medical Director, Adolescent Psychiatric Unit, 1988–1990
Deer Park Hospital, Deer Park, TX
Medical Director, Adolescent Psychiatric Unit, 1988–1990
Chairperson, QA Committee, 1988–1990
Chairperson, Credentials Committee, 1988–1990
Director of Staff Development and Training, 1988–1989
Crisis Hotline, Houston, TX
Consultant, 1985-1987
Deer Park Day Hospital, Deer Park, TX
Medical Director Day Hospital 1985–1986
Mental Health Association, Houston, TX
Member, Public Affairs Committee, 1985
Speaker, 1984–1988
Houston Psychiatric Society
Member, Educational Committee, 1985
Member, Ad-Hoc Committee on Direct Service, 1985
Representative, State Conference on Prevention and Control of Trauma, 1982
Mental Health Mental Retardation Authority (MHMRA), Harris County, TX
Director, MHMRA Mid-City Outpatient Commitment Clinic, 1984–1985
Medical Director, MHMRA Northwest Mental Health Clinic, 1983–84
Coordinator, Staff In-service Series, MHMRA West End Clinic, 1981–1984
Clinical Director, Day Hospital, MHMRA West End Clinic, 1981–1984
Baylor College of Medicine, Houston, TX
Coordinator and Lecturer, PGY-1 Seminar on Forensic Psychiatry, 1984–1985
Innovator, Coordinator, and Lecturer for “Human Sexuality” core curriculum course
for first year medical students, 1984–1985

3
S. W. Silverman, M.D. Curriculum Vitae 4

Member, Community and Social Psychiatry Educational Program for Psychiatric

Residents, 1983–1985
Faculty appointment to first year medical students' elective, “Humanism in Medical
Care,” 1982
Lecturer to medical students in courses on human sexuality, humanism in medical
care, and occupational medicine, Baylor College of Medicine, 1982
Coordinator, Consultant, and Lecturer, National College of Criminal Defense, Houston,
TX, 1984–1985
Special Consultant, Texas Rehabilitation Center, Houston, TX, 1982–1984

PRESENTATIONS
Fort Bend Regional Council on Substance Abuse, Inc. at the Fort Bend Chamber of
Commerce, “Broadening Mental Health Services within the Fort Bend County Jail,”
Seth W. Silverman, MD, and Fort Bend Country Sheriff Milton Wright, 2009
American Academy of Psychiatry and the Law, “Asperger Psychopathology and Internet
Sexual Crimes,” Seth W. Silverman, MD, J. Arturo Silva, MD, and Gregory B.
Leong, MD, 2007
South Texas Law School CME program, “Abnormal Behaviors,” 2007
National Public Radio (NPR) broadcast of comments concerning a mental health-related
Supreme Court Case, 2007
American Academy of Psychiatry and the Law, “Educating Judges and Attorneys about
their Mentally Ill Clients,” Seth Silverman and Ann Jennings, 2004
National Institute for Trial Advocacy (NITA), “Mental Health Considerations in Criminal
Proceedings,” Houston, TX, 2004
Harris County Continuing Legal Education Course, “Evaluating Insanity Evaluations,”
Houston, TX, 2004
Mystery Writers of America, “Forensic Psychiatry: Mental Health Considerations in the
Court Room,” 2003
Texas Criminal Defense Lawyers Association, “Intelligence Testing,” Seth Silverman
and Susana Rosin, 2003
American Academy of Psychiatry and the Law, “Supreme Court: Alcoholism, Treatment
and Recidivism,” Seth Silverman and Ann Jennings, 2002
Harris County Criminal Defense Lawyers’ Association, “Stress, Responsibilities and
Rewards of Criminal Defense,” 2000
Federal Public Defender’s Symposium, Fifth Circuit Court of Appeals, “The Role of
Psychiatric Expert Witnesses,” 1997
Harris County Criminal Defense Lawyer’s Association, “The Insanity Defense,” 1992
Methodist Hospital In-service Series, “Nuts and Bolts of Emergency Room Psychiatry,”
1985
American Psychiatric Association, “Success and Success Phobia in Contemporary
Women: Developmental Consideration,” author D. Krueger, M.D, 1985
Westbury High School (student assembly) “Alcohol and Alcoholism,” 1985
Harris County (TX) Psychiatric Hospital, “Management of Suicidal Patients,” 1985
Northwest Medical Center, “Atypical Psychosis, Diagnosis and Treatment,” 1985
Cities Service Company In-service Series, “Dealing with Difficult People,” 1984

4
S. W. Silverman, M.D. Curriculum Vitae 5

Ben Taub General Hospital, Psychiatric Services, Clinical Case Conference, 1984
CBS Television, Houston (Channel 11), interview, “Forensic Psychiatry,” 1984
KFMK and KACC Radio, Houston, interview, “Depression,” 1984
American Psychiatric Association Symposium, “Legal Issues in the Care of the Chronic
Patient,” G. K. Patterson and S. W. Silverman, 1984
Annual Meeting of Region VI, National Council of Community Mental Health Centers,
“Helping the Severe Chronic Patient: An Alternative to Hopelessness,” S. W.
Silverman, C. Moore, H. S. Moffic, 1983
American Psychiatric Association Symposium, Summary Paper: “Un-served Groups:
Comparison amidst Controversy,” H. S. Moffic, S. W. Silverman, H. Campbell,
1983
Community and Social Psychiatry Programs Seminar, Lecturer, 1982-1985
Lecturer to the Houston public elementary school teachers, “Stress and How to Make
Lemonade,” 1982
Baylor College of Medicine, Grand Rounds, “Teaching Family Therapy to Psychiatric
Residents,” 1982
Baylor College of Medicine and Mental Health Mental Retardation Authority of Harris
County representative to Mental Health Needs Council, “The West End Day
Hospital—Alternatives in Treatment,” 1982
Tarry Hall, The Jewish Community Center, and The Texas Rehabilitation Commission,
In-services, “Sensitizing Allied Health Professionals to the Care of Chronic Mental
Patients,” 1982
Robert Lang’s “Teaching Psychotherapy Seminar,” invited speaker, 1981
Baylor College of Medicine, Grand Rounds
“Suicidal Impulses in Treatment: High Risk Stakes for Trainees and Patients,” 1980
“The Psycho-Physiological Aspects of Stress in Juvenile Diabetes Mellitus,” 1979

INTERVIEWS
Interviewed for Texas Lawyer Assistance Program article referencing ‘The Depressed
Lawyer,” 2007
Interviewed for Texas Defender Service-produced documentary, “Executing the Insane:
The Case of Scott Panetta,” 2007
Invited by the Death Penalty Information Center to brief national press in Washington,
D.C., prior to the Supreme Court of the United States consideration of a mental
health-related case, 2007

PUBLICATIONS: Books and chapters

H. S. Moffic, S. W. Silverman, and G. L. Adams, Editors, Psychiatry: A Problem
Oriented Approach, Medical Examination Publishing Co., New Hyde Park, NY,
1986
A. Fink, S. W. Silverman, Chapter, and “The Homicidal Patient” in Psychiatry: A
Problem Oriented Approach, Medical Examination Publishing Co., New Hyde Park,
NY, 1986, 199–206

5
S. W. Silverman, M.D. Curriculum Vitae 6

S. W. Silverman, B. Perraino, Chapter, “The Patient and Examiner with Confusion” in

Psychiatry: A Problem Oriented Approach, Medical Examination Publishing Co.,
New Hyde Park, NY 1986, 149–158
S. W. Silverman, Chapter, “Cost Effectiveness of Psychotherapy” in the Last Taboo:
Money as Symbol and Reality in Psychotherapy and Psychoanalysis, David W.
Krueger, M.D. (Ed.) Brunner/Mazel Publishers, 1986, 236–243
S. W. Silverman, A. Fink, Chapter, “Legal issues in the Care of the Chronic Patient” in
The Chronic Mental Patient in a Community Context, Ranjit C. Chacko, M.D. (Ed.)
The Monograph Series, Clinical Insights Monograph, American Psychiatric
Association, Washington, D.C., 1985
Senior Author, Rutgers Medical School Handbook, 1976

PUBLICATIONS: Journals
H. S. Moffic, S. W. Silverman, C. Moore, “A New Treatment Model,” Hospital and
Community Psychiatry, 34 (12): 1200, 1983
H. S. Moffic, S. W. Silverman, and G. L. Adams, “General Clinical Considerations for
Minority Group Patients” American Journal of Social Psychiatry, 3 (2): 70–74,
spring, 1983
S. W. Silverman, “After Hinkley: A Psychiatric View,” Journal of Criminal Defense, 10
(3), May-June 1983
J. D. Tarnow, S. W. Silverman, “The Psychophysiological Aspects of Stress in Juvenile
Diabetes Mellitus,” International Journal of Psychiatry in Medicine, 11 (1): 25-44,
1981-1982

PUBLICATIONS: Other
S.W. Silverman, “Letter to the Editor” (Andrea Yates case), Texas Monthly, 30 (9), 16,
18, September 2002
S. W. Silverman, “Chronic Patients and Trainees – A Therapeutic Interface?” Psychiatric
Residents Newsletter, American Psychiatric Association, spring, 1984
S. W. Silverman, “Terms of Endearment,” Movie Review, Upstream, Houston
Psychiatric Society Newsletter, December 1983
S. W. Silverman, “Academic Psychiatry: A Terminal Transition of Residency,”
Psychiatric Residents Newsletter, Publication of the American Psychiatric
Association, 3 (2), Fall 1983
S. W. Silverman, “Return of the Jedi,” Movie Review, Upstream, Houston Psychiatric
Society Newsletter, July 1983
S. W. Silverman, “Tip of the Iceberg” Upstream, Houston Psychiatric Society Newsletter,
March 1983

COMMUNITY SERVICE
Chair of the Advisory Committee to the Master’s Level Professional Writing Program,
University of Houston- Downtown, 2005-2007
Judge, Science Writing Contest, Science Engineering Fair of Houston, 2002

6
S. W. Silverman, M.D. Curriculum Vitae 7

PROFESSIONAL ORGANIZATIONS
American Academy of Psychiatry and the Law, 1984–
Association for the Advancement of Psychotherapy, 1983–85
Houston Psychiatric Society, 1983–
American Psychiatric Association, 1983–
Texas Society for Psychiatric Physicians, 1983–
Texas Medical Association, 1980–
Harris County Medical Society, 1980–
American Medical Association, 1980–
Baylor House Staff Association, 1980–1983
American College of Emergency Physicians, 1980–1983

HONORS
Texas Center for Adolescent Rehabilitation & Education (T-CARE, a non-profit
residential center), Letter of Appreciation for Exceptional Care and Dedication, 2005
Texas Center for Adolescent Rehabilitation & Education (T-CARE, a non-profit
residential center), Citation for Clinical Excellence & Commitment to Patient Care
for Underprivileged Youth, 1999
Cypress Creek Hospital, Award for Outstanding Team Leadership, 1999
Twelve Oaks Hospital, Award for Excellence in Clinical Care, 1992
Association for Academic Psychiatry Fellowship Award, Charter Recipient, 1983
Brandeis University, graduated cum laude, 1975

7
Appendix B
84 M. D. Cunningham and T. J. Reidy

Age
Figure 3b. Age distribution of criminal offenders in the general population of the United States 1977.
(From: Hirschi & Gottredson, 1989; copyright 1989 by The University of Chicago Press; used by
permission of the publisher)

among community residents over age 45 as compared to those younger than 45

(Myers et al., 1984; Regier et al., 1988). In a study of 889 male prison inmates
ranging in age from 16 to 69, Harpur and Hare (1994) reported that over 60% of the
18-25 cohort was diagnosed ASPD, yet less than 20% of the post age 46 group was
diagnosed ASPD. Hare Psychopathy Checklist (PCL) scores reflected a marked
decline with age for Factor 2 (Socially Deviant Behavior).
Prison disciplinary problems also decrease as inmates get older, regardless of
how the inmates are treated (Alexander & Austin, 1992). Hirschi and Gottfredson
(1989) cited 1975 New York prison infraction base rates which were 10-fold greater
for inmates in their 20s than inmates over age 60 (Figure 5). The age related effects
demonstrated by this figure are remarkably similar to the distributions of
community criminal activity depicted in Figures 3a and 3b. In a study of death
sentenced and life-without-parole inmates, Sorensen and Wrinkle (1996) reported
that rates of infractions were higher for younger inmates, tended to rise during the
initial period of confinement, and then decreased over time. Flanagan (1980)

$3 1998 John Wiley & Sons, Ltd. Behav. Sci. Law, Vol. 16, 71-95 (1998)
Appendix 27
Appendix 28
Appendix 29