Petition

The following is copied from the Clemency Petition (exhibits not included, and in fact derived from an earlier draft).

INTRODUCTION

Richard Allen Masterson is factually and legally innocent. He did not kill the decedent in this case, Darrin Honeycutt. Mr. Honeycutt died of a heart attack, not strangulation as the State  theorized at trial. The State’s medical examiner, Paul Shrode, lied on his application for employment, and he lied every time that he took the stand to qualify as an expert witness. And he  lied when he took the stand in Richard’s case. Mr. Shrode’s lack of education caused him to miss elementary cardiology principles and incorrectly determine the cause of death. Mr. Shrode was not exposed as a fraud until after Richard’s case.

But Mr. Shrode is not the only problem with Richard’s case. Richard’s case was also a perfect storm of uninterested and underqualified defense lawyers. Richard’s state habeas lawyer, J. Sidney Crowley, is widely regarded as the worst capital defense lawyer in the state. He lived up to his billing when representing Richard. Mr. Crowley’s work can barely be qualified as the bare minimum required to give the appearance that he tried.

Richard’s federal habeas lawyer started strong, but he lost interest in the case at the crucial moments. Before this lawyer filed Richard’s federal habeas petition, Mr. Shrode’s fraud had been exposed. Richard’s petition contained nothing about the issue.

And this lawyer finally raised the most glaring red flag that was present since Richard’s youth, his brain damage. He asked the federal court for authorization to have an MRI performed to conclusively show Richard’s brain damage. But he never followed through to get it done. So Richard’s strongest mitigation argument was dismissed because Richard could not provide proof, despite the court’s offer to fund and authorize it.

The federal court has now funded and authorized the MRI brain scan. It will be performed on December 30, 2015. Richard will provide the results to this Board.

Because Richard’s lawyers failed him, the court system will not provide relief to him. His last chance is executive clemency. The Governnor is the last line of defense to stop the execution of an innocent man.

TABLE OF CONTENTS

HISTORY OF MR. MASTERSON’S LITIGATION
I. Richard’s trial lawyers failed to recognize and investigate the primary defenses to the State’s desire to impose a death sentence.
II. The State’s expert medical examiner, Paul Shrode, lied about his qualification to get his job, lied on the stand to qualify as an expert witness, botched Mr. Honeycutt’s autopsy, and sent an innocent man to death row.
III. Richard’s state habeas lawyer performed below any acceptable professional level, as he repeatedly does.
a. James Sidney Crowley is an ineffective capital defense attorney who has been found ineffective for similar poor performances and who has a disciplinary history for neglect with the State Bar of Texas.
b. James Sidney Crowley provided ineffective assistance of counsel to Richard Masterson when he filed a nineteen-page writ of habeas corpus in which he presented only two allegations challenging the validity of Mr. Masterson’s conviction and resulting sentence.
IV. Richard’s federal habeas lawyer neglected Richard when it mattered most.
WHO IS RICHARD MASTERSON?
I. Richard’s infancy was filled with terror and violence at the hands of the people who should have protected him.
II. Richard escaped his house of horrors and landed on the streets where he was forced to fend for himself.
III. Richard accidentally contributed to Darrin Honeycutt’s death, who most likely died from a heart attack – not strangulation.
IV. When Richard was in jail, his brain malformation caused him to become severely depressed and suicidal, causing him to falsely confess and behave antagonistically toward others to accomplish his suicidal desires.
V. Richard’s brain damage and malformations caused him to behave bizarrely and to continue his suicidal behavior during trial and post-conviction litigation.
CONCLUSION 

HISTORY OF MR. MASTERSON’S LITIGATION

I. Richard’s trial lawyers failed to recognize and investigate the primary defenses to the State’s desire to impose a death sentence.

For Richard’s trial before the 176th Judicial District Court for Harris County, Texas, the court appointed two familiar lawyers. Robert K. Loper and Layton W. Duer previously represented Richard’s brother, Joe Masterson. They represented Joe in a burglary  case. Joe got twenty-five years in that case.

The Masterson family felt that Messrs. Loper and Duer did a poor job defending Joe. Richard felt a sense of dread when he discovered they would be the thin line of defense between him and a death verdict. Richard’s fears about Messrs. Loper and Duer were well founded.

Any hope to which Richard clung evaporated when Mr. Loper visited Richard in the county jail. When the two sat down to talk about Richard’s case, Mr. Loper immediately asked Richard how many people Richard had killed. Richard was appalled. He has killed no one aside from the one accidental death for which he faced the death penalty.

But Mr. Loper, Richard’s defender, did not believe Richard. He tried to cajole Richard into confessing to more murders. And he seemed disappointed when Richard maintained that he was not a serial killer. This introduction certainly did not inspire confidence that Mr. Loper would zealously defend Richard. And Messrs. Loper and Duer did not zealously defend Richard. Richard’s penalty phase highlighted their lack of care and preparation.

The only expert they consulted was a psychiatrist, despite notations in Richard’s TYC files that doctors had opined when he was a juvenile that Richard had likely suffered organic brain damage. Richard’s lawyers did not notice that crucial red flag in their client’s own file. And they did not seriously investigate his aggressively suicidal behavior, which was indicative of severe mental illness. They just carried their initial assumption, that Richard was a serial killer.

If Messrs. Loper and Duer had exerted more effort in Richard’s case, they would have noticed and investigated clear signs of Richard’s brain damage and severe mental illness. They would have investigated the biological causes of his suicidal behavior to explain it to the jury. If they had used more care with Richard’s case, the jury would have understood why Richard behaved the way that he did. Instead, the jury just saw a suicidal, dangerous man. And it granted Richard his wish: a death verdict.

II. The State’s expert medical examiner, Paul Shrode, lied about his qualification to get his job, lied on the stand to qualify as an expert witness, botched Mr. Honeycutt’s autopsy, and sent an innocent man to death row.

The State’s expert witness, Paul Shrode, is a fraud. He conned the State of Texas into giving him a job as an Assistant Medical Examiner, lying about his background to get the job. Exh. 13. Then, without the necessary qualifications, he performed autopsies and testified about expert matters.

After Richard’s trial, the Harris County Medical Examiner’s Office reprimanded Mr. Shrode for his deficient work, specifically for a wrong determnation of cause of death. Exh. 14.

In Richard’s case, Mr. Shrode botched Mr. Honeycutt’s autopsy. He opined that Mr. Honeycutt died from strangulation, most likely conforming his opinions to the prosecution’s theory of the case.

But Richard’s qualified medical expert has now exposed Mr. Shrode’s shoddy work product and erroneous conclusions.

Darrin Honeycutt did not die from strangulation; he died from a heart attack. Richard Masterson did not kill him.

And Richard’s case is not the first that Mr. Shrode’s fraud impacted. In Ohio, Mr. Shrode helped send another man to death row with his fraudulent expert opinion. Richard Nields petitioned the Ohio Governor for clemency. Ohio granted that clemency request based on Mr. Shrode’s misconduct. [Exh. 15.] But none of Richard’s lawyers ever raised the issue during his post-conviction litigation.

III. Richard’s state habeas lawyer performed below any acceptable professional level, as he repeatedly does.

The Guidelines and Standards for Texas Capital Counsel set forth the professional norms that post-conviction habeas counsel must meet, and Mr. Crowley has repeatedly failed to meet these standards. As with so many other clients, he failed Mr. Masterson because he does not adhere to even the basic professional standards for postconviction habeas counsel. In 1995, the Texas Legislature enacted the Habeas Corpus Reform Act of 1995, which provided for appointment of counsel to represent all those convicted of capital murder and sentenced to death in their habeas petitions. See Ex Parte Kerr, 64 S.W.3d 414, 418 (Tex. Crim. App. 2002).

Then Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which granted federal courts authority to grant habeas relief if the state court’s adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . .28 U.S.C. § 2254(d)(1) (April 24, 1996).

Under the Texas Act of 1995, state appellate counsel must immediately request the appellate record from the convicting court clerk under Tex. R. App. P. 34.5 and 34.6. The professional norm for state habeas lawyers is to investigate the factual and legal grounds for filing an application for a writ of habeas corpus and to timely file the application in the convicting court. See Tex. Code Crim. P. Ann. art. 11.071, § 3(a).

Here, as discussed above, Mr. Crowley failed to meet the professional norms for state habeas counsel. He did not even request the complete record for review. Moreover, he did not timely file Mr. Masterson’s application for a writ of habeas corpus, and the meager nineteen-page, thinly supported application failed to meet professional standards for writs of habeas corpus because the highly technical law applicable to habeas litigation dictates [that the writs] be lengthy. Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals, The Texas Defender Service, 2002, available at http://texasdefender.org/wp-content/uploads/Lethal-Indiff_web.pdf.

As set forth in more detail below, Mr. Crowley’s negligent representation left significant evidence that Mr. Masterson is innocent of capital murder and of the death penalty undiscovered, causing compelling postconviction claims to go unadjudicated in both the state and federal habeas courts. For these reasons, and those set forth below, Mr. Masterson should be granted clemency because the facts of Mr. Masterson’s case raise serious doubt that the he is guilty or that a sentence of death is justified.

a. James Sidney Crowley is an ineffective capital defense attorney who has been found ineffective for similar poor performances and who has a disciplinary history for neglect with the State Bar of Texas. James Sidney Crowley neglects his duties to the court and his clients and has a troubling history of procrastination that is not unique to Richard Allen Masterson. On May 5, 2005, Mr. Crowley was appointed as lead counsel to represent Francisco Castellano, who was indicted for capital murder. Mr. Crowley neglected his duty when, on December 15, 2005, the 130th Judicial District Court of Matagorda County, Texas found that prior to trial, Mr. Crowley provided ineffective assistance of counsel to Mr. Castellano. State v. Francisco Castellano, Trial Cause No. 05-138, 130th Judicial Dist. Court of Matagorda County, Texas. For nearly seven months after his appointment, Mr. Crowley did not file a single motion for Mr. Castellano. Mr. Crowley did not seek funds for investigation, mitigation, or experts. Mr. Crowley visited Mr. Castellano only once in seven months. Mr. Crowley did not examine the evidence nor did anyone else on his defense team.

Mr. Crowley did not even ask Mr. Castellano for records releases to do so.

And Mr. Crowley did not interview any witnesses for the state. Yet on November 23, 2005, Mr. Crowley represented to the court that he would be prepared to proceed to trial on March 6, 2006.

The court ordered Mr. Crowley to appear on December 15, 2005, to demonstrate that Mr. Castellano’s case would be ready for trial or to show cause why he should not be found ineffective. That same day, December 15, 2005, Mr. Crowley refused to join his second chair’s, Tommy James Stickler, motion to continue, in which Mr. Stickler concluded that the defense could not be prepared to effectively represent Mr. Castellano in a capital trial.

Finally, after an ex parte proceeding with Mr. Stickler and Mr. Crowley on December 15, 2005, the court found that as a matter of Federal constitutional law, Mr. Crowley provided ineffective assistance of counsel to Mr. Castellano. Id. at 10-16. The court immediately removed Mr. Crowley as first chair counsel and found that heexhibited serious contempt for the court and for the legal system.

Because Mr. Crowley, as the court ruled from the bench, neglected his obligations to a defendant charged with capital murder and who [stood] trial with his life at stake, the court, in the administration of justice, issued a continuance of Mr. Castellano’s trial. Id. at 10-13.

And notably, after new counsel reached a plea agreement with the State in November 2007, the State waived the death penalty for Mr. Castellano.

In addition to Mr. Crowley’s ineffective assistance in the Castellano case, the Commission for Lawyer Discipline of the State Bar of Texas sued him for mishandling George S. Guo’s appeal in State of Texas v. George S. Guo, Trial Cause No. 0032362, 240th Judicial District Court of Fort Bend County, Texas. See Petitioner’s Original Disciplinary Petition Commissioner for Lawyer Discipline v. James S. Crowley, Cause No. 05-CV-140898, 240th Judicial District Court of Fort Bend County, Texas. Mr. Crowley was appointed to handle Mr. Guo’s appeal on September 5, 2003, and the Appellant’s Brief was due on October 6, 2003. Id. at 2. Mr. Crowley failed to timely file the Appellant’s Brief because he was occupied with several other matters. Id. He further failed to file a Motion to Extend Time to file the Appellant’s Brief before October 21, 2003, and he did not notify Mr. Guo of the status of his appeal or that he missed the filing deadline. Id. at 2-3. Mr. Crowley did not file a Motion to Extend Time to file until March 12, 2004, after receiving two written correspondences from Mr. Guo demanding that he file his brief. Id. The 13th Court of Appeals extended the time to file until April 8, 2004, but still Mr. Crowley did not file the Appellant’s brief until April 29, 2004 six months overdue. See id.

On May 26, 2006, the 240th Judicial District Court of Fort Bend County, Texas issued a public reprimand finding that Mr. Crowley had committed professional misconduct in representing Mr. Guo. See Agreed Judgment of Public Reprimand, Cause No. 05-CV-140898, 240th Judicial District Court of Fort Bend County, Texas. The court found that Mr. Crowley had violated rules 1.01(b)(1), 1.01(b) (2), and 1.03(a) of the Texas Disciplinary Rules of Professional Conduct. Id. at 2. Moreover, Mr. Crowley’s lack of diligence is widely known among Texas capital counsel as he, as state habeas counsel in Ex Parte Nenno, Ex Parte Rousseau, Ex Parte Villareal, Ex Parte Arthur, and Ex Parte Smith, has been cited as among the worst capital defense attorneys in Texas. See Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals, The Texas Defender Service, 2002.

In Ex Parte Nenno, Mr. Crowley filed a state habeas petition consisting of only eight pages in which he made only two record-based claims. See Ex Parte Nenno, Writ No. 50, 598 (Tex. Crim. App. Nov. 14, 2001). In Ex Parte Rousseau, Mr. Crowley swore that when the court appointed him, he did not know how to litigate a capital habeas corpus case and was not aware of the need to investigate facts outside of the trial record. Affidavit of CCA Appointed State Habeas Counsel, Rousseau v. Johnson, No. 00-CV-2588 (S.D. Tex. July 25, 2000).

Mr. Crowley also showed his gross lack of diligence when he filed a nine-page petition in Ex Parte Villareal, a fourteen-page writ with no exhibits in Ex Parte Arthur, and a nine-page writ in Ex Parte Smith. See Ex Parte Villareal, Writ No. 50, 599 (Tex. Crim. App. Oct. 31, 2001); Ex Parte Arthur, Application for Writ of Habeas Corpus, No. 763189 (Tex. Dist. Ct. 180th Jud. Dist. Nov. 17, 1999); Ex Parte Smith, Writ No. 48, 130 (Tex. Crim. App. Jan. 17, 2001).

Mr. Crowley continually conceded his inexperience and unawareness of the basic requirements of competent representation. Lethal Indifference at 20. Yet this is no excuse for his dismal performances in each case, nor does it justify his continued lack of due diligence in recent cases after over thirty years of experience.

Similarly, Mr. Crowley exhibited his lack of diligence and ignored his duty to provide effective counsel in his representation of capital defendant, Derrick Dewayne Charles. See Charles v. Quarterman, Amended Petition for Writ of Habeas Corpus, No. 09-CV-00592 (S.D. Tex. Sept. 22, 2009).

There, Mr. Crowley and co-counsel, Connie Williams, failed to present available mitigation evidence during the punishment phase of Charles’ trial. See id. at 85. The state took five days to present its case for the death of Derrick Charles, but Crowley and Williams presented only a two-hour defense. Id. at 85-86. Most troubling, Crowley and Williams did not include any mitigating evidence despite Charles’ extensive history littered with mental illness, violence, poverty, and drug abuse. Id. at 86. The jury had no opportunity to hear any of the incidences of mitigating evidence
because Crowley and Williams conducted their defense in an unprecedented in camera hearing with only Judge Krocker and the court reporter. Id. at 80, 86. As a result, the jury had no choice but to sentence Charles to die, which it did.

b. James Sidney Crowley provided ineffective assistance of counsel to Richard Masterson when he filed a nineteen-page writ of habeas corpus in which he presented only two allegations challenging the validity of Mr. Masterson’s conviction and resulting sentence. Richard Masterson has similarly been prejudiced by Mr. Crowley’s gross lack of diligence, which, as evidenced above, was all but inevitable because Mr. Crowley is one of Texas’ worst capital defense attorneys; Mr. Crowley does not take his duty to the court and his duty to his clients seriously. On February 26, 2004, thirty-six days after the original deadline, Mr. Crowley filed Mr. Masterson’s initial state application for postconviction writ of habeas corpus. See Ex Parte Masterson, Application for Post-Conviction Writ of Habeas Corpus, No. 867834A (Tex. Dist. Ct. 176th Jud. Dist. Feb. 26, 2004). Knowing the application was over one month late, Mr. Crowley did not file a Motion to Extend the Filing Deadline until June 28, 2004 four months after the habeas application was originally filed. See Ex Parte Masterson, Motion to Extend Filing Deadline for 11.071 Writ, No. 867834A (Tex. Dist. Ct. 176th Jud. Dist. June 28, 2004).

In the original state habeas application, Mr. Crowley raised only two allegations of error: (1) Mr. Masterson was denied his due process right to a jury trial when a juror slept through the medical examiner’s testimony, and (2) Mr. Masterson was deprived of the right to effective assistance of counsel at the guilt-innocence and punishment phases of trial. See Ex Parte Masterson, Application for Post-Conviction Writ of Habeas Corpus at 11-12. Mr. Crowley simply drew a conclusion for the first allegation of error and did not explain to the court how a juror sleeping through trial testimony prejudiced Mr. Masterson.

Moreover, he did not cite to Federal Rule of Criminal Procedure 24(c) that authorizes the trial court to replace jurors who are found to be unable to perform their duties or to any cases in which the courts found defendants were prejudiced because of a juror’s failure to pay attention to the evidence presented at trial. See, e.g., United States v. Smith, 550 F.2d 277, 285 (5th Cir. 1977) cert. denied sub nom. (finding that a juror who sleeps through much of the trial testimony cannot be expected to perform his duties); United States v. Warner, 690 F.2d 545 (6th Cir. 1982) (finding that the district court’s dismissal of the sleeping juror was properly within its discretion); see also Wallace v.United States, 434 U.S. 841 (1977); United States v. Cameron, 464 F.2d 333 (3d Cir. 1972).

Furthermore, Mr. Crowley did not explain that the proper method to preserve error regarding jury misconduct was to file a motion for a new trial, which Mr. Masterson’s trial counsel should have done. See Tex. R. App. P. 21.2, 21.3(g); Trout v. State, 702 S.W.2d 618,620 (Tex. Crim. App. 1985); James v. State, No. 14-98-01083-CR, 2000 WL 123771, at *1 (Tex. App. Feb. 3, 2000).

Additionally, while Mr. Crowley supported the second allegation of error with more analysis and support, he still failed to corroborate Mr. Masterson’s mitigating evidence with additional evidence and witness testimony that was available when the original state habeas application was filed. See Part III, IV, and V infra.

Even more troubling, when Mr. Crowley was questioned about his investigation into Mr. Masterson’s history and review of the trial records to use for the state habeas application, he stated that he only reviewed the trial records once because the records were so voluminous. See
Dore Affidavit ¶4. Mr. Crowley also did not review Mr. Masterson’s juvenile records or have copies of the trial records to reference for the habeas application. See id.

Thus, with a thinly supported initial habeas application in which Mr. Crowley made conclusory statements with little-to-no support, it came as no surprise that the CCA issued a per curiam order with no explanation affirming the lower court’s denial of Mr. Masterson’s state habeas application. See Ex Parte Masterson, Order, Writ No. 59, 481-01 (Tex. Crim. App. Aug. 20, 2008).

Indeed, as a legendarily deficient capital defense attorney in Texas, Mr. Crowley’s lack of diligence in Mr. Masterson’s case should cause this Board to evaluate the record anew without any of the other compelling evidence presented. Mr. Crowley’s continued contempt for Texas courts, his death-row clients, and Richard specifically is enough to warrant a commutation of Richard’s death sentence.

IV. Richard’s federal habeas lawyer neglected Richard when it mattered most.

The United States District Court asked Mr. Crowley to continue his representation in federal court. Mercifully, Mr. Crowley declined. So the district court appointed a new attorney, Patrick F. McCann.

Mr. McCann noticed that Mr. Crowley had done an inadequate job representing Richard. So he filed another action in state court trying to supplement Mr. Crowley’s deficient state-habeas application. The Court of Criminal Appeals, however, declined to hear Mr. McCann’s effort.

Mr. McCann recognized the one issue that could have saved Richard’s life, his probable organic brain damage. So Mr. McCann sought to develop a claim that Richard’s trial lawyers performed below professional norms when they failed to identify the red flags pointed toward his brain damage.

To prove prejudice, a requirement for federal habeas relief, Mr. McCann needed to show that Richard did, in fact, have brain damage. So Mr. McCann petitioned the district court for authorization and funding for a brain scan to demonstrate brain damage.

The Court, weary of needlessly spending federal money, authorized and funded a psychiatrist to opine on whether Richard had brain damage. It asked Mr. McCann to file a renewed motion if the psychiatrist believed Richard had brain damage, or that a brain scan would assist in a diagnosis.

The psychiatrist, Dr. Williams-Anderson, evaluated Richard and informed Mr. McCann that in her expert opinion Richard did indeed suffer organic brain damage, but that a brain scan would assist in a more complete diagnosis. She sent this expert opinion to Mr. McCann on February 11, 2013.

Mr. McCann, however, did nothing with the report before filing Richard’s federal habeas petition. He did not request the crucial brain scan, despite the federal court’s invitation to do so, and his expert’s opinion that one was necessary to offer a complete diagnosis of his client.

On April 8, 2013, Mr. McCann filed his Amended Petition for Writ of Habeas Corpus, which included the claim about Messrs. Loper and Duer’s failure to present evidence of Richard’s brain damage in mitigation of a death sentence.

The State responded that Mr. McCann did not prove his claim, and, therefore, Richard was not entitled to relief. The district court agreed with the State and ruled against Richard.

Richard responded with anger. He wrote the district court and requested new counsel to properly litigate his brain-damage claim.

Mr. McCann responded with a motion that, for the first time, disclosed Dr. Williams-Anderson’s expert opinion. He still did not ask for a brain scan, though. The district court again denied relief for basically the same reasons in it’s original denial. In essence, Mr. McCann did not prove the brain-damage claim because he never asked for the crucial brain scan to prove that Richard had brain damage.

In fact, Mr. Masterson was the only one who requested the brain scan.

He filed a pro se motion asking the district court to order it. Mot., Masterson v. Stephens, ECF No. 69, 2014 U.S. Dist. LEXIS 26226 (S.D. Tex. 2014) (No. 4:09-cv-2731). But the district court ignored that motion because Richard had a lawyer. And Mr. McCann did nothing afterward.

WHO IS RICHARD MASTERSON?

I. Richard’s infancy was filled with terror and violence at the hands of the people who should have protected him.

Richard Allen Masterson was born on March 5, 1972, in Houston, Texas, to James Ivan Masterson and Ellabelle Burnett Masterson (TYC Records p. 10-11). He was the youngest of eight children (TYC Records p. 11). Even before birth, Richard was already predisposed to mental and psychological health problems arising from the chaotic environment his parents experienced: his father’s continuous alcoholism and drug addiction and his mother’s childhood abuse (TYC Records p. 10-11).

Richard’s childhood can only be characterized as violent, abusive, and traumatic.

His father, the dominant male figure in his life, James Masterson, engaged in habitual physical, verbal, emotional, and psychological abuse toward Richard and the rest of his family (TYC Records p. 42). Since infancy, Richard suffered horrific abuse at the hands of his father and later would suffer abuse, including rape, from an older sibling.

Richard’s father would often strike his head violently and repeatedly to the point that his head would swell to two or three times its normal size.

When discussing head injuries like this in children, John Hopkins Medicine notes: Head injuries are one of the most common causes of disability and death in children. The injury can be as mild as a bump, bruise (contusion), or cut on the head, or can be moderate to severe in nature due to a concussion, deep cut or open wound, fractured skull bone(s), or from internal bleeding and damage to the brain.

(http://www.hopkinsmedicine.org/healthlibrary/conditions/pediatrics/head_injury_in_children_90,P02
604/)

Richard’s siblings have spoken about the type of abuse Richard underwent and described the swelling of his head as a result of the abuse. Richard’s outward symptoms and experiences are congruent with bruising and trauma to the brain. The effects of this type of damage to the brain can be long- or short-term changes in personality or behavior.

Children who are subjected to this particular type of trauma require lifelong medical and rehabilitative (physical, occupational, or speech therapy) management.
(http://www.hopkinsmedicine.org/healthlibrary/conditions/pediatrics/head_injury_in_children_90,P02
604/).

Richard never received this type of treatment despite desperately and obviously needing it. In 2013, the American Psychiatric Association (APA) published The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). In this edition, the APA includes a new developmental subtype of PTSD called Post-Traumatic Stress Disorder in preschool children.

This is the first developmental subtype of PTSD. The APA based its decision to include the new sub-type on studies showing that the use of a developmentally-sensitive set of criteria specifically for children led to approximately three to eight times more children qualifying for the diagnosis compared to the DSM-IV.

The DSM-5 specifically cites abuse and witnessing interpersonal violence as risk factors for PTSD.
(http://www.ptsd.va.gov/professional/PTSDoverview/ptsd_children_6_and_younger.asp). These discoveries came long after Richard suffered his abuse providing no chance for a proper diagnosis and treatment of his injuries.

Richard witnessed first hand the domestic violence perpetrated by his father. Richard saw his father physically abuse and rape his mother and his siblings (TYC Records p. 42). At the age of seven or eight, Richard was sexually assaulted by his older brother who himself was the victim of rape by their father (MM Williams-Anderson Report p. 3).

Child sexual abuse survivors often show symptoms of PTSD, including agitated behavior, frightening dreams, and repetitive play in which
aspects of the abuse are expressed.
http://www.ptsd.va.gov/professional/trauma/other/child_sexual_abuse.asp).

Richard’s records document his frequent sleep disorders and bad dreams, symptoms of his ongoing and untreated PTSD. Richard lived with the secret of his sexual abuse until the age of 27, when for the first time in his life he spoke about it to his then girlfriend (MM Williams-Anderson Report p. 3).

Their father’s constant abuse became so unbearable that Richard and his siblings begged and urged their mother to leave their father, which she eventually did after 27 years of marriage (TYC Report p. 42). By that point, however, Richard had already experienced severe trauma, including brain damage, and had developed PTSD. The abuse at home and the recurring PTSD symptoms entrenched into Richard’s life outside of his home, severely crippling his educational advancement.

His performance in school suffered, and he repeated several grades after failing.

Richard’s attendance in school likewise suffered, and he missed school frequently, leading to truancy issues. He mirrored the fights he witnessed at home and frequently engaged in altercations with his classmates (MM Williams-Anderson Report p. 3). Moreover, his untreated ADHD exacerbated his existing mental health problems. Richard first engaged in consensual sex at age 11, far too early to understand the psychological and emotional effects of a sexual life that were thrown onto Richard at an early age by the abuse to which he was subjected.

Research conducted by Julia Whealin, Ph.D. and Erin Barnett, Ph.D. shows childhood sexual abuse that is not effectively treated may result in long-term symptoms that persist into adulthood. These include PTSD and anxiety; depression and thoughts of suicide; sexual anxiety and disorders, including promiscuity and difficulty maintaining appropriate boundaries with others; enmeshed or avoidant relationships; poor body image and low self-esteem.

Moreover, the use of unhealthy behaviors such as alcohol abuse, drug abuse, self-mutilation, or bingeing and purging are additional symptoms exhibited that are done to help mask painful emotions related to the experienced abuse.
(http://www.ptsd.va.gov/professional/trauma/other/child_sexual_abuse.asp)

By the age of 13, Richard hit rock bottom and felt hopeless and defeated. He dropped out of school, left his abusive home, and found himself homeless and living on the streets (MM Williams-Anderson Report p. 3).

The desperate need for money to survive led him to prostitution and selling drugs at the tender age of 13 (MM Williams-Anderson Report p. 3).

The idea of prostituting himself with older men brought back painful and unwanted memories of his earlier abuse. Richard began to rob these men who sexually preyed on children. His life experiences created a hatred for them.

Their unlikeliness to call the police to report a theft at the risk of being prosecuted for their association with the sexual exploitation of vulnerable children made them a rational means for survival (Masterson Ltr 8-26). In his mind, Richard was robbing child molesters just as they were robbing him of his dignity and innocence by engaging in sex with him, a minor child.

When Richard turned 16, the violence eventually caught up with him. During a drug deal gone wrong, Richard was shot in the chest, and the bullet lodged under his heart near his spine. This traumatic experience alone, separate from all of the other atrocities Richard had experienced up to this point in has life, further aggravated his PTSD diagnosis. The National Institute of Mental Health notes that PTSD can happen to anyone at any age, and the victim need not be physically hurt. Merely witnessing another person, such as a friend or family member, get hurt can trigger PTSD.

(http://www.nimh.nih.gov/health/publications/post-traumatic-stress-disorder-easy-toread/
index.shtml).

The totality of the abuse and violence Richard experienced in his early life speak to the undiagnosed brain injury and PTSD. At the time Richard suffered the majority of trauma in his life, PTSD was not yet understood the way it is today nor diagnosed in children.

Only within the last decade has the psychological community begun to truly understand the depth and severity of the consequences of PTSD. Brain trauma, PTSD, and other symptoms of sexual and physical assault help to shed light on Richard’s path in life. In a 2005 study, Smith, Ireland, and Thornberry noted that substantiated cases of adolescent maltreatment (against children ages 12 to 17) increased the odds of arrest, general and violent offending, and illicit drug use in young adulthood. (Smith, C.A., T.O. Ireland, and T.P. Thornberry, “Adolescent Maltreatment and Its Impact on Young Adult Antisocial Behavior” Child Abuse & Neglect 29(10) (2005): 1099 1119). The existence of these diagnoses alone does not condemn Richard to a continued life of tribulation.

Research conducted by Sonya Norman, Ph.D., Eric B. Elbogen, Ph.D. and Paula P. Schnurr, Ph.D. shows individuals with PTSD are not dangerous and are not likely to commit acts of violence. (http://www.ptsd.va.gov/professional/cooccurring/assessing_risk_violence_ptsd.asp).

Richard’s traumatic past has gone untreated for his entire life and as a result, he has never been given the chance to live a normal life much less the opportunity to succeed.

II. Richard escaped his house of horrors and landed on the streets where he was forced to fend for himself.

Mr. Masterson endured a tumultuous childhood and suffered abuse and neglect from an early age.

When the Masterson family lived together, their father would frequently come home drunk late at night to beat the children. T. 4/25/2002, 58. (Vol. 22). Their father would select one of the children, pull him out of bed, kick him from one end of the house to the other, and beat him. Id.

When Mr. Masterson was three, their father kidnapped their mother and left all eight children alone for a month. Id. at 56.

When their mother was able to return, she was arrested for abandoning the children. Id. at 57. The State jailed her, leaving Richard at the mercy of his father.

Mr. Masterson was eventually placed in a foster home, which was the only time Mr. Masterson had a normal home situation. Id. at 63. In addition to the beatings, Mr. Masterson reported that his older brother molested him when he was around seven- or eight-years-old. Exh. 8 at 2.

His brother most likely learned the predatory behavior from their father, who sexually abused this brother and at least one of his sisters. Id. By the age of eleven or twelve, Mr. Masterson was no longer attending school regularly. He dropped out completely by the sixth grade. Id.

By age thirteen, Mr. Masterson fled his home to escape his parents’ abuse and neglect. But he had nowhere to go, so he decided to live on the streets instead of his home.

Richard’s family never looked for him or tried to bring him home. To survive on the streets, Richard turned to prostitution, drugs, and criminal activity. Id.

During his trial, the State argued that Mr. Masterson robbed rich homosexuals during these desperate years living on the streets. As a thirteen- or fourteenyear- old, he would only rob older male clients. Mr. Masterson admitted he stole, but only from child molesters. These older men were not random targets, singled out because of their homosexuality.

They were looking for vulnerable, young boys who were susceptible to the money from performed sex acts. These older men wanted to molest children who society would not believe if they reported these rich men’s criminal behavior. Richard understandably hated these men who preyed on him.

Because they were looking for child victims, Richard robbed them to get even. And even though he robbed these sexual predators, he killed no one and never had the desire to do so.

During these desperate early-teenage years, Richard began using cocaine daily and developed an addiction at the most vulnerable time for human addiction, during adolescence. Exh. 9. He would continue to indulge in daily drug binges, including intravenous cocaine, for the rest of his life. Exh. 8.

Due to years of drug abuse, Mr. Masterson developed a host of medical issues, including further aggravated brain damage. Id. at 3. He was previously diagnosed with Hepatitis C, attributed to his intravenous drug use. Id. In addition, he has a history of seizures because of his crack use. Exh. 9. Mr. Masterson reported experiencing as many as three seizures a day during the time he used crack. Exh. 8.

Dr. Shawanda Williams-Anderson, the neuropsychologist evaluating Mr. Masterson during his federal habeas proceedings, opined that his substantial drug use was a contributing factor. Id.

Richard’s recent symptoms included daily migraines, a deep heaviness inside his cranium, and pain that shoots from the front of his head to the back. Id.

During the neuropsychological exam to assess brain function, Dr. Williams-Anderson found multiple deficits, particularly with cognitive
processing speed and abstract reasoning. Id.at 4.

Dr. Williams-Anderson concluded that his results were typical of a person with a history of substance abuse and subtle brain dysfunction, and believes the chronic substance abuse exacerbated existing brain damage due to a brain anomaly or brain dysfunction. Id. at 5.

III. Richard accidentally contributed to Darrin Honeycutt’s death, who most likely died from a heart attack not strangulation.

The central issue in Richard’s trial was what caused Mr. Honeycutt’s death.

Richard maintained that the death was accidental. The State argued that Richard killed him in the course of robbing him. Richard did not dispute that he went to Mr. Honeycutt’s apartment that night. But he forcefully avowed that he did not intend to kill Mr. Honeycutt. He did not know just how correct he was. Richard and Mr. Honeycutt left a bar together in the early morning hours of Friday, January 26, 2001. They were drinking, and Richard was, as usual, using cocaine. Richard and Mr. Honeycutt decided to go to Mr. Honeycutt’s apartment to have consensual sex with each other. Once inside the apartment, the pair engaged in sexual relations.

Mr. Honeycutt performed oral sex on Richard. Then Mr. Honeycutt asked Richard to have anal sex with him while performing autoerotic asphyxiation on him. Richard agreed. Richard tried to insert his penis into Mr. Honeycutt but could not due to the prolactin released during his refractory period. But Richard did comply with Mr. Honeycutt’s request for autoerotic asphyxiation.

Autoerotic asphyxiation is a sexual technique that heightens an individual’s climax by temporarily depriving the brain of oxygen. The technique is fraught with danger, and many famous people have died attempting it, including David Carradine, Albert Dekker, and Stephen Milligan.

To accomplish the sexual technique, Richard applied pressure to Mr. Honeycutt’s neck, temporarily cutting oxygen for the heightened climax.

And Mr. Honeycutt did climax. The State later tested DNA found in semen on Mr. Honeycutt’s thigh; the semen was Mr. Honeycutt’s. After this sexual act, Mr. Honeycutt fell off his bed and onto the floor. He was breathing but not responsive. Richard thought he was still alive but unconscious. 

After a little more time had passed, Richard believed that Mr. Honeycutt had died. He panicked. He knew no one would believe the death was accidental given his history. And he also feared that homophobia would become a factor contributing to hostility against him.

Richard remembered that others knew he went to Mr. Honeycutt’s apartment. So he tried to make the apartment look like it had been burglarized in a misguided attempt to deflect suspicion away from him.

Richard was ultimately correct. While his efforts to cut oxygen to Mr. Honeycutt’s brain likely contributed to Mr. Honeycutt’s death, Richard did not strangle him to death. The State’s expert pathologist at trial was Medical Examiner Paul Shrode. The parties did not know at the time, but Mr. Shrode had lied about his qualifications to work as a medical examiner. In fact, Mr. Shrode was not qualified to give an expert opinion about what caused Mr. Honeycutt’s death, and was dismissed from his post in 2010 after an Ohio prisoner received clemency on the basis of Dr. Shrode’s fraudulent testimony. Shrode’s lack of qualification was no mere technicality. Mr. Shrode made fundamental errors when testifying about his expert opinion in Richard’s trial. Because Mr. Shrode did not understand basic medical principles of pulmonary pathology, he could not understand the physiological signs that pointed towards a heart attack.

And Richard’s expert pathologist, Christena Roberts, MD, properly looked at Mr. Honeycutt’s autopsy and gave a qualified medical expert opinion based on the evidence still available. Dr. Roberts’s expert opinion, the only expert opinion available to the Board, opines that no evidence shows that Mr. Honeycutt died from strangulation. Based in part on the autopsy records and in part on Richard’s trial testimony, Dr.
Roberts opined that Mr. Honeycutt most likely died from a heart attack triggered by Mr. Honeycutt’s pre-existing severe coronary artery disease.

So Richard was more accurate than he knew. Not only did he not mean to kill Mr. Honeycutt, but the only qualified expert to look at the data concluded he actually did not directly cause Mr. Honeycutt’s death. Mr. Honeycutt died from the sudden stress of their consensual sex on his heart, burdened by severe coronary artery disease.

IV. When Richard was in jail, his brain malformation caused him to become severely depressed and suicidal, causing him to falsely confess and behave antagonistically toward others to accomplish
his suicidal desires.

After Richard’s arrest, he suffered from drug withdrawal and severe depression, neither of which combined well with his brain damage. Richard used cocaine intravenously all day at the time of the Mr. Honeycutt’s death, and he consistently used methamphetamines until two days before his arrest.

Richard’s withdrawal after this prolonged drug use made him feel vulnerable, extremely depressed, and with no desire to live. In essence, Richard committed suicide by confession when Officer David S. Null confronted him in a Florida jail on February 9, 2001.

At trial, Richard testified that he voluntarily confessed to capital murder because he wanted a death penalty rather than a life in prison.

Unfortunately, the jury did not believe him because his trial attorneys did not spend the time to consult with experts about Richard’s brain damage, trauma, PTSD, and general mental illnesses.

But in addition to that readily available scientific evidence, Richard had other serious brainchemistry problems that science had not recognized yet.

Dr. Williams-Anderson examined Richard’s brain function in 2013 and found that he exhibited multiple neuropsychological deficits in his reasoning ability, and had a brain anomaly. Dr. Williams-Anderson believed that Richard’s substance abuse triggered frequent seizures, and the repeated seizures could lead to brain damage. When the brain is repeatedly exposed to drugs, it naturally adjusts its chemistry to tolerate the effects of the drugs and achieve stimulation.

Because stimulant drugs release dopamine and stimulate the brain to anticipate pleasurable events, Richard became profoundly energized and euphoric. So when Richard discontinued the stimulant drug use, his brain developed symptoms of hyperactivity and craved more drugs to maintain normality.

Dr. Williams-Anderson also conducted a research study on the effects of drugs on the adolescent brain, but general awareness of the research was not available until after the trial. Following a 2002 publication on psycho-stimulant drug use, the scientific community acknowledged a correlation between acute stimulant withdrawal and the symptoms of major depressive disorder. See AM Barr, A Markou, AG Phillips. A Crash Course on Psychostimulant Withdrawal as a Model of Depression. TRENDS in Pharmacological Sciences Vol. 23 No. 10 (1041-1052) October 2002. Severe depression combined with withdrawal from stimulants produces suicidal ideation.

At the time of Richard’s police interview, he was suffering a major depression as a result of stimulant withdrawal, known as transient stimulant withdrawal depression.

His confession was a desperate attempt to commit suicide by confession. When the depression subsided, Richard no longer wanted the State to put him to death. He testified on his own behalf in a doomed attempt to convince the jury that he was not guilty of capital murder. Without this evidence to explain why Richard would make a false confession to capital murder, the jury rejected Richard’s pleas that he was innocent.

After the jury convicted Richard of capital murder, he sank into his depressed, suicidal shell again. To further his suicidal goal, Richard once again took the stand during the sentencing phase, and pled for a sentence of death:

DA Mitchell: You mentioned that you wanted you think the jury should answer the special issues in such a way that you get the death penalty, right?
Masterson: If they’re following the law, yes.
DA: They have to, right?
Masterson: Yes, if they’re following the law.
. . .
DA: You’re positive there’s no way you could stay in prison probably even for a year without
getting violent again, right?
Masterson: Probably not. Probably not even a month.

T. 4/24/2002, 100 (Vol. 22). Richard directly told the jury to sentence him to death. His suicidal
urges won that day; the jury obliged.

V. Richard’s brain damage and malformations caused him to behave bizarrely and to continue his suicidal behavior during trial and postconviction litigation.

After Richard asked the jury to give him a death sentence, he continued his suicidal behavior. His filings started somewhat innocently; they were more bizarre than suicidal. But Richard was exhibiting disorganized and paranoid thinking that displayed his severe mental illness and brain damage. On October 20, 2011, Richard wrote a letter to the Clerk of the United States District Court for the Southern District of Texas, warning the court that another death-row inmate would be writing to sabotage his case. Petitioner Letter, Masterson v. Stephens, ECF No. 23, 2014 U.S. Dist. LEXIS 26226 (S.D. Tex. 2014) (No. 4:09-cv-2731).

The other inmate had no interest in writing the court about Richard’s case; that man had to worry about his own capital litigation. This bizarre paranoia revealed Richard’s brain was not functioning correctly. After Mr. McCann would not respond to Richard’s letters, Richard sank into another deep, suicidal depression. Over a period of eight months, Richard wrote the federal district court three times asking to drop his legal challenges.

On August 10, 2012, Richard wrote to the court saying that he wanted to be executed because his lawyers, family, and friends had abandoned him. He no longer had the will to live after everyone who was supposed to care for his fate abandoned him and lied to him. Id. at ECF No. 39.

When the court did not respond to that request, Richard wrote again on March 15, 2013. Id. at ECF No. 52. In that letter, Richard asked the court to forbid Mr. McCann from pursuing his best avenue for the relief, his organic brain damage. Richard knew that his habeas petition would fail without that issue, so he asked the court to set his execution date as soon as the petition would be denied. And less than a month later, Richard directly expressed his ultimate desire: to waive any further legal challenges and be put to death. Id. at ECF No. 61. Richard’s state of mind appeared to flip-flop almost every two to three months from reading his letters to the court. He seemed conflicted with a willingness to live and a hopelessness to end his suffering. Lawyer friends and family have all abandon me and lied to me and I am tired and I am ready to [accept] my punishment now as I am only suffering here. ECF 39. Due to stress and want of a fair trial, Richard’s depression worsened to include frequent headaches and unmanageable pain.

After Richard’s final letter asking the court to expedite his death, prison officials prescribed Zoloft, a common anti-depressant, to Richard. This common remedy alleviated the severity of Richard’s crushing depression, so he filed a motion in the district court withdrawing his three previous letters volunteering for execution. Id. at ECF No. 64. He realized that he had been so deeply depressed that he had been attempting to commit suicide. After receiving the simple anti-depression treatment, Richard wanted to fight for his life.

One must wonder what would have happened if someone, anyone, would have cared enough to seek treatment for Richard before he attempted to commit suicide from the beginning of the case. And what if someone had cared enough to help Richard get treatment before he met Darrin Honeycutt on that fateful night. Even though Richard did not kill Mr. Honeycutt, he probably would not have been using alcohol and drugs in that bar that night. He probably would have never met Mr. Honeycutt. Mr. Honeycutt probably would still be alive.

CONCLUSION

Mr. Masterson is not a monster. He is not a sociopath. He accidentally contributed to the death of one person. But this death did not qualify him for the death penalty. Mr. Masterson faces the death house because he has brain damage, severe mental illness, and suicidal tendencies.

The combination of his brain damage, severe mental illness, and suicidal tendencies caused Mr. Masterson to act irrationally and caustically after the death. Mr. Masterson decided that he wanted to die.

It is easy to see why Richard felt suicidal. Since his birth, Richard was destined to repeat the trauma of his parent’s past. His father’s alcoholism and addiction to drugs led to a chemical imbalance that was passed down to Richard at birth, giving him an overwhelming disadvantage that when left undiagnosed and untreated, exacerbated the effects of the horrific traumas he faced at home.

The repeated rape and physical abuse that Richard experienced prevented him from ever truly developing meaningful relationships with his parents, siblings, and any other person that came into his life. His sleep and bad dream disturbances, along with his suicidal ideation, angry and hostile demeanor, and depressed feelings are overwhelming evidence of an individual with deep trauma and unresolved post-traumatic stress disorder which at the time was not diagnosis within reach.

As a teenager living on the streets, Richard succumbed to the horrors that many teenage runaways must endure to survive. He prostituted himself for money to eat, and he used alcohol and drugs to numb the pain of his dismal existence. This substance abuse and stress aggravated his brain damage and mental illness. In response, Richard continued to use drugs in an attempt to self-medicate.

And that continued the vicious cycle, further harming his damaged brain.

Richard made many mistakes in his life, but he did not kill Darrin Honeycutt. Mr. Honeycutt died of a heart attack not strangulation. The State’s unqualified, perjurous expert medical examiner botched Mr. Honeycutt’s autopsy, making an exact cause of death impossible now. But we know that Mr. Shrode was wrong here.

And Richard’s jury never heard about Richard’s organic brain damage and the biological underpinnings of his suicidal behavior. His trial lawyers never bothered to further investigate doctor’s notes that requested brain scans to properly diagnose and treat his brain damage. Had the jury understood that his childhood abuse damaged Richard’s brain and that his brain chemistry caused him to act in a suicidal manner, it might have shown compassion for him and sentenced him to life.

But those opportunities to present a full picture of Richard Allen Masterton have passed. He will never have them again. He has only one last chance to convince anyone, at any point from his birth, to show him compassion and understanding: this Board.

Richard does not deserve the death penalty in these circumstances. He respectfully asks this board to commute his sentence to life in prison without the possibility of parole.

If the board is not immediately inclined to do that, Richard asks for a 102-day stay of execution to supply more documentation of his innocence.

Respectfully submitted etc.