Executed July 11, 2001
The Honorable Rick Perry
Governor of the State of Texas
P.O. Box 12428
Austin, TX 78711-2428
Re: James Joseph Wilkens, Jr.
Dear Governor Perry:
James Joseph Wilkens, Jr. is scheduled to be executed on Wednesday, July 11, 2001. On behalf of the American Civil Liberties Union, we urge you to commute Mr. Wilkens sentence of death to life imprisonment. Such action is clearly merited in this case because Mr. Wilkens has been denied proper access to the courts.
Mr. Wilkens was initially convicted and sentenced to death on or about February 18, 1988. This conviction was reversed on direct appeal on the ground that his Fifth Amended right against self-incrimination was violated when the trial court admitted the expert testimony of two psychiatrists who had examined Mr. Wilkens without first warning him of the possible use of his statements to them. On retrial, Mr. Wilkens was again convicted and sentenced to death. The judgment and sentence were affirmed by the Court of Criminal Appeals of Texas.
The record here plainly shows that Mr. Wilkens did not receive the effective assistance of counsel at the trial level. In the second trial, his trial counsel did not object to the same type of expert psychiatric testimony by prosecution witnesses that led to the reversal of the first conviction. Such testimony would have been inadmissible in the second trial as well, but for the trial counsel subsequent decision to assert an insanity defense. Not only was Mr. Wilkens insanity defense unsupported by any expert testimony whatever, but, by raising it, Mr. Wilkens trial counsel also validated the prior expert testimony on behalf of the prosecution.
While relying on a groundless insanity defense, Mr. Wilkens trial counsel failed to introduce, as mitigating evidence during the punishment phase, very substantial and compelling expert testimony of other mental disabilities that had been developed earlier. A highly renowned psychiatrist was prepared to testify that Mr. Wilkens adult antisocial personality disorder resulted directly from the severe physical and sexual abuse he suffered as a child, yet this mitigating evidence was never used at trial.
Notwithstanding the fundamental errors committed by his trial counsel, Mr. Wilkens has been denied meaningful access to the federal courts as well. When his habeas corpus petition was initially rejected, his counsel received no notice of the denial for nearly three months, when a faxed copy of the district court opinion was finally faxed to counsel office. The Fifth Circuit denied Mr. Wilkens subsequent appeal as untimely, ruling that the faxed copy of the district court opinion constitutes requisite notice under federal procedural rules. In a well-reasoned dissent, however, one of the three circuit court judges explained that a faxed copy of an opinion does not constitute proper notice, and that Mr. Wilkens appeal should be entertained on the merits. See James Joseph Wilkins, Jr. v. Gary L. Johnson, Director, Texas Department of Criminal Justice, 238 F. 3rd 328 (5h Cir. 2001) (descent). An appeal is now pending before the U.S. Supreme Court, but it will not be considered before Mr. Wilkens execution date.
The ACLU opposes capital punishment in all cases as a barbarous anachronism and in violation of the U.S. Constitution. Clemency is particularly justified in Mr. Wilkens case because he has been unable to obtain access to any forum that could ultimately correct the grievous mistakes committed by his defense counsel at trial. In light of these very troubling circumstances, we urge you to grant clemency to Mr. Wilkens and to commute his sentence to life imprisonment.
Sincerely,
Diann Rust-Tierney
ACLU Capital Punishment Project
William Harrell
ACLU of Texas
James V. Dick
Pro Bono Counsel
Squire, Sanders & Dempsey L.L.P.
