Luckiest' killer in Texas
sees a future now
Supreme Court decision adds
impetus to debate on adding life without parole sentence in
March 16, 2005
Convicted killer Johnnie Bernal
considers himself a lucky man.
When the U.S. Supreme Court 2 weeks ago banned
the execution of convicts who committed
their crimes before they turned 18, the former Houston
gangbanger's life was spared.
Bernal was just 1 day short of his 18th
birthday the night college student Lee
Dilley, 19, was gunned down during a botched robbery.
"I made it by one day, I know," Bernal, now 28,
said from an interview cell just off death
row at the Polunsky Unit outside Livingston, where he
will soon depart for a regular prison - and the possibility
of parole after he serves 40 years.
"Now, my focus is going to be on my appeal, on
getting out - completely out."
Just as Bernal has become a national poster boy
for critics of the high court's decision,
he is a case study of what promises to be Texas' next
hot-button issue: Whether the Legislature should enact a
law allowing for life without parole to
keep underage capital killers from one day becoming
eligible to leave prison.
That debate begins Tuesday, when the Senate
Criminal Justice Committee takes up Senate
Bill 60, which would add life without parole as a 3rd
sentencing alternative for capital crimes. At present,
juries must decide between execution and
life with the possibility of parole.
"Is there a danger to the public? Yes. Has this
(Supreme Court) decision left a loophole in
Yes," said state Sen. Eddie Lucio Jr., D-Brownsville,
a self-proclaimed supporter of the death
penalty and sponsor of SB 60, his 3rd try to pass
life without parole in as many legislative sessions.
4 related bills are pending in the Texas House,
including one that would keep the choices
to 2: death and life without parole. Lucio's bill is the
1st to get a public hearing, a step that Sen. John Whitmire,
the chairman of the Criminal Justice
Committee, says promises to be "one of the most
serious issues debated this session."
Whether it has the votes to pass into law this
session is far from certain.
In all, the high court's decision freed Bernal
and 28 other convicted killers from Texas'
death row, including Robert Springsteen IV, who was
convicted in Austin's infamous 1991 yogurt shop murders.
For Lucio and other supporters, the issue is
simple: 47 other states lock up their most
heinous killers without the chance of ever getting out. Only
Texas, Alaska and New Mexico do not.
In the past, big-city prosecutors and victims'
rights groups have steadfastly opposed the
change, arguing that it will stack the legal deck
in favor of a life term. Ironically, proponents of the
change argue much the same position.
"There's no finality in all this unless there's
an execution," said Dianne Clements of the
Houston-based victims' advocacy group Justice for All.
Statistical studies in other states that have
enacted life without parole show no
decrease in death sentencing rates. Death penalty opponents insist
that death penalty decisions have declined as news of DNA
evidence and wrongful convictions have made
jurors more cautious. Despite that, Lucio
warns that inaction this year could pose a new risk.
"The way it is now, with the Supreme Court
ruling in effect, someone on death row
could eventually walk out of prison," Lucio said. "That
Freedom is exactly what Bernal hopes for.
"My goal is one day to get out of here," he
said. "I want to get into school, to get my
GED, to get married, to make something of myself ?
On Friday, Aug. 19, 1994, Bernal was thinking
about none of the such. The tall, quiet
10th-grade dropout, known as the Puppet by the neighborhood
gang he hung out with, the Northwest Mafia, spent the
evening cruising Northwest Houston with 4
friends, sniffing paint and looking for girls.
Shortly after midnight, their white-topped blue
Buick Regal pulled up alongside three boys
and a girl standing outside Nick's Drive-In, a
neighborhood ice house.
"We were just going to mess with them, that's
all," Bernal said.
In an instant, an occupant of the car pointed a
pistol out the window and demanded their
money. The girl ran, then the boys. 4 shots rang out, one
hitting Dilley's left earlobe, another puncturing his back
and piercing his heart. He died instantly.
Bernal went home, where Houston police found
him 12 days later, a pistol and bullets in
his nightstand drawer. Ballistics tests introduced at his
trial linked the gun to the murder. Bernal was found guilty
and sentenced to death, one of a spate of
young killers sent to death row beginning in
the mid-1990s as drug- and gang-related crimes swept the
Bernal insists that he is innocent, that one of
his friends in the back seat, a 14-year-old
boy, leaned across him with a pistol and fired the
That youth, who was on probation for weapons
possession and evading arrest, was never
charged in the attack. Neither were 2 others. The driver
is serving a 35-year sentence for aggravated robbery.
In its decision, the Supreme Court drew a legal
line at age 18 between criminals who are
too young to fully comprehend their actions and those
who are. Bernal says that played a role in his case.
"I was just a kid. I didn't know. I was hanging
with the wrong crowd," he said. But in
nearly 10 years on death row, Bernal added, "I've grown up. .
.. I've found God. . . . I pray every day that (Lee Dilley)
is in peace. I can never take back what
happened, even though I wish I could."
Such words ring hollow to victims' survivors,
Texans who have been among the most vocal
in opposition to life without parole.
"The victims need to be heard," said Paula
Kurland, a longtime advocate from Humble
whose daughter, Mitzi Johnson Nalley, 21, was stabbed to death
in a brutal 1986 attack at a North Austin apartment that
also killed Nalley's roommate, Kelly Joan
Farquhar, and seriously injured a friend who
tried to come to her assistance. Jonathan Nobles was
executed in 1998 for the crimes.
Kurland is among those who will be at today's
hearing, to testify in favor of Lucio's
"It would be truth in sentencing," Kurland said.
"People should know that life is life.
Sometimes lifeis a death sentence, because (offenders) have
to live with their crime for the rest of their life."