Hello, Ms. Ingram,
it is good to see you. I said I could talk but I donít think
I am gonna be able to. I heard one of your nieces had some
angry words. I didnít have anything to do with the stay. I
spent the last twenty years waiting to figure out whatís
going on. I pray that you get over it and thatís the only
thing I can think to say. Iím regretful for what I done, but
Iím a different person from that time. If you could get to
know me over the years, you could have seen it. Iíve got
some people over here that believes that.
I want to talk to
my friends over here for a second. Well, itís good to see
you guys. Look after Mary Lynn for me. Like I said, Iíve
called my mother already, so she knows. Goodbye.
Danny Lee Barber was
condemned for the October 1979 beating and stabbing death of Janice
Louise Ingram during a burglary of her home in Balch Springs in
Dallas County, a suburb southeast of Dallas.
Janice's mother, found the naked, beaten and dead body of her
daughter. Barber described it as a burglary that went wrong.
Barber confessed to
killing Janice with a piece of pipe as he tried to rob her home.
Barber gave various accounts but told authorities in his confession
he found a piece of pipe in her back yard, where he had previously
done lawn work, and planned to use it to break a window.
Instead he found a
door open and walked in, startling Mrs. Ingram, who began screaming.
When she wouldn't be quiet, he began clubbing her with the pipe.
He was charged with
the murder while being held in the Dallas County Jail on charges of
breaking into a flea market.
In the 2 days after
his arrest for Janice's death, he confessed to killing 3 other
Dallas-area residents in a 2-year period.
Barber, from Los
Angeles, was given life sentences for the three other Dallas County
murders, one committed on June 18, 1978, Mercedes Mendez, (48) on
Jan. 17, 1979 and another, Mary Caperton, on April 21, 1980. He
sells cross-stitch crafts he makes on death row via a web page.
Danny Lee Barber - 43 years -
99-2-11 - Texas
In Huntsville, condemned
killer Danny Lee Barber was executed Thursday evening for fatally
beating a Dallas County woman almost 20 years ago.
was pronounced dead at 6:26 p.m., 6 minutes after the lethal
injection was started and less than an hour after the U.S. Supreme
Court denied his final application for a stay.
In a brief
final statement, he greeted 6 members of his victims' families and
apologized for his crimes.
for whatever pain I've caused. I pray you get over it. I am
regretful for what I (sic) done, but I am a different person from
that time," Barber said.
turned toward witnesses he selected and said he had talked to his
mother. "Okay. Goodbye," he said in closing.
drugs took effect, Barber uttered a gasp and a snore before he
witnesses was 93-year-old Ruth Clowers, who found the body of her
daughter, Janice Louise Ingram, after the murder for which Barber
was sentenced to die.
Clowers and other witnesses emerged from the death house, a woman
down the street chanted her opposition to capital punishment into a
bullhorn. The witnesses stopped, turned and started clapping.
lady has finally sung," said Otto Lowrance, Ms. Ingram's cousin.
was slain on Oct. 8, 1979, at her home in Balch Springs, a suburb
southeast of Dallas. Barber described the murder of the 50-year-old
woman as a burglary that went wrong, and blamed it on alcoholism and
It was one of 4 murder
convictions for Barber, who was within an hour of lethal injection
on Dec. 9 when a federal judge halted the punishment.
attorneys had raised questions about the legality of the Texas
clemency process. U.S. District Judge Sam Sparks in Austin issued a
stay but later upheld the clemency procedures, and Barber's
execution was reset.
A native of
Torrance, Calif., Barber also confessed to 3 other murders committed
in Dallas County over an 18-month period between 1977 and 1979,
earning him life prison sentences for each.
regret what happened that night," he said before his December death
date. "I can't undo the crimes I've done in the past."
relatives of his victims came to Huntsville in December to watch him
die and were irate and in tears when they were told of the last-minute
reprieve. They returned to Huntsville Thursday.
heartbreaking," said Sue Korioth, a Dallas County assistant district
attorney who handles capital case appeals. "It's very difficult for
them. You know, they never volunteered for this assignment."
refused to speak with reporters since the December reprieve, said
earlier he was bitter his good behavior while on death row meant
nothing in his appeals.
that I spent 15 years in the work program, counseled other inmates,
gone to school and I'm not getting any credit for it," he said. "I've
apologized to everyone I could. I've learned to read and write. I've
done all I could from in here. I don't feel I'm a threat to anybody.
I've learned my lesson. I believe I've earned a right to live."
however, termed him deserving of the death penalty, especially
considering the brutality of Mrs. Ingram's death.
various accounts but told authorities in his confession he found a
piece of pipe in her back yard, where he had previously done lawn
work, and planned to use it to break a window.
found a door open and walked in, startling Mrs. Ingram, who began
screaming. When she wouldn't be quiet, he began clubbing her with
He was charged with the murder
while being held in the Dallas County Jail on charges of breaking
into a flea market.
don't recall striking her, though there's a lot that I've blocked
out," he said in an interview last year. "Things were hell, and when
I gave the confession it eased things."
145 F.3d 234
Gary L. Johnson, Director, Texas Department of Criminal
Justice, Institutional Division,
United States Court of Appeals,
June 23, 1998
Appeal from the United States
District Court for the Northern District of Texas.
Chief Judge, and KING and DENNIS, Circuit Judges.
POLITZ, Chief Judge:
Barber invoked 28 U.S.C. ß 2254 and sought a
writ of habeas corpus, challenging his
conviction and death sentence for capital
murder. The district court rejected his
petition. Barber seeks appellate review,1
contending that the penalty phase testimony
by Dr. Clay Griffith relating to the future
dangerousness issue violated his fourth,
fifth, and fourteenth amendment rights, as
well as the rules of Estelle v. Smith2
and Satterwhite v. Texas.3
In his competency examination of Barber
prior to trial Dr. Griffith gave no Miranda4
warnings, nor did he obtain consent of
Barber's counsel for the examination.
Considering the record, briefs, and oral
argument of counsel, in light of our
controlling precedents, the request for a
certificate of probable cause must be denied.5
indicted for the October 8, 1979 murder of
Janie Ingram during the burglary of her home.
Prior to trial Barber sought a competency
examination by Dr. Charles Lett. The court
granted the request and, sua sponte,
directed that a second psychiatrist, Dr.
Clay Griffith, examine Barber and report
thereon. The court found Barber competent to
stand trial essentially on the basis of the
testimony of Dr. Griffith.6
1980 Barber was found guilty of capital
murder and sentenced to death. On direct
appeal the Texas Court of Criminal Appeals
affirmed in part but remanded with
directions to the trial court to conduct an
evidentiary hearing to determine whether
Barber had been competent to stand trial.7
That hearing was conducted and the trial
court found Barber competent and the Texas
Court of Criminal Appeals affirmed.8
Barber petitioned for state habeas relief,
challenging the testimony of Dr. Griffith.
The Texas Court of Criminal Appeals denied
that relief, concluding that the admission
of the testimony of Dr. Griffith about
was error but was harmless error,10
in light of other overwhelming evidence. The
instant proceeding followed.
district court dismissed Barber's petition
for a writ of habeas corpus, concluding that
the admission of Dr. Griffith's testimony as
to future dangerousness was erroneous but
that it did not result in actual prejudice.11
The district court then denied Barber's
request for CPC and Barber timely sought
district court denied a CPC which we may
grant only upon a "substantial showing of
the denial of a federal right."12
the Supreme Court held that in a direct
appeal "before a federal constitutional
error can be harmless, the court must be
able to declare a belief that it was
harmless beyond a reasonable doubt."14
In federal habeas cases, however, the Court
in the non-capital case Brecht v. Abrahamson15
held that federal courts may grant relief
only when the error "had a substantial and
injurious effect in determining the jury's
contends that neither the Texas Court of
nor the district court,18
applied the correct harmless error analysis,
urging that the more rigorous standard
announced in Chapman19
should apply, even though this is a habeas
proceeding, because his Estelle claim was
not addressed on direct review and therefore
never received scrutiny under the more
stringent and constitutionally mandated
December 1997, we decided this issue in
Hogue v. Johnson.21
Hogue had contended in a habeas proceeding
that his death sentence was unconstitutional
because a guilty plea rape conviction from
1974, set aside because of ineffective
assistance of counsel, was admitted during
the sentencing phase of his trial. Our panel
concluded that not only was Hogue's claim
procedurally barred, but even if error had
occurred the conviction did not have a "substantial
and injurious effect" on the jury.
rejected Hogue's contention that the Chapman
standard should apply, stating: "Brecht
rather than Chapman, enunciates the
appropriate standard for determining whether
a constitutional error was harmless in a
federal habeas challenge to a state
conviction or sentence even though no state
court ever made any determination respecting
whether or not the error was harmless."22
The court reiterated that Brecht divided
cases by two criteria--"structural errors
versus non structural errors" and "direct
versus collateral review"--and "[n]o third
classification of cases was made for those
where the state court determined the error
was harmless and those that did not address
the prior panel's decision, we would note
that our holding in Hogue may be viewed as
inconsistent with the Supreme Court's
underlying reasoning for applying the Brecht
standard in federal habeas review. The
Brecht court based its adoption of the
Kotteakos standard on federal habeas review
on three important considerations: (1)
state's interest in finality of convictions
that have survived direct review within
state court systems; (2) the principles of
comity and federalism; and (3) that "[l]iberal
allowance of the writ ... degrades the
prominence of the trial itself."24
The Supreme Court in Brecht stated:
State courts are fully
qualified to identify constitutional error
and evaluate its prejudicial effect on the
trial process under Chapman, and state
courts often occupy a superior vantage point
from which to evaluate the effect of trial
error. For these reasons, it scarcely seems
logical to require federal habeas courts to
engage in the identical approach to harmless-error
review that Chapman requires state courts to
engage in on direct review.25
capital case, unlike in Brecht which reached
the Supreme Court after two state appellate
courts, a federal district court, and a
federal court of appeals had reviewed the
error under Chapman, no court, at the state
or federal level, has reviewed Barber's
constitutional error under the Chapman
persuaded that Hogue is inconsistent with
Brecht, we may not ignore the decision, for
in this circuit one panel may not overrule
the decision of a prior panel. Absent
intervening legislation or a decision of the
only our en banc court is so empowered.
Accordingly, we must deny Barber's
application for a CPC on these issues.
also alleged numerous other constitutional
errors, including a charge that the
inordinate delay in carrying out his
execution violates the eighth amendment;
that the retrospective competency hearing
violated his due process rights; that he
received ineffective assistance of counsel;
and prosecutorial misconduct. After
reviewing all of same, we find no basis
therein for appellate review.
request for a certificate of probable cause
Circuit Judge, specially concurring:
recognize that this panel is bound by this
court's prior decision in Hogue v. Johnson,
131 F.3d 466 (5th Cir.1997), cert. denied,
--- U.S. ----, 118 S.Ct. 1297, 140 L.Ed.2d
334 (1998), I write specially to express my
belief that the Supreme Court's holding in
Chapman v. California requires that when
state courts on direct review have
disregarded their constitutional duty to
apply the rigorous "beyond-a-reasonable-doubt"
standard to constitutional error, federal
courts on collateral review must apply the
Chapman harmless-error standard as part of
their obligation to vindicate federal
constitutional rights and to protect
criminal defendants from unconstitutional
convictions and sentences. See Chapman v.
California, 386 U.S. 18, 24, 87 S.Ct. 824,
828, 17 L.Ed.2d 705 (1967) ("[W]e hold ...
that before a federal constitutional error
can be held harmless, the court must be able
to declare a belief that it was harmless
beyond a reasonable doubt."). "The State
bears the burden of proving that an error
passes muster under this standard." Brecht
v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct.
1710, 1718, 123 L.Ed.2d 353 (1993). The
Chapman standard protects those rights that
are "rooted in the Bill of Rights, offered
and championed in the Congress by James
Madison, who told the Congress that the 'independent'
federal courts would be the 'guardians of
those rights.' " Chapman, 386 U.S. at 21, 87
S.Ct. at 827. Therefore, the Chapman
harmless-error rule is of constitutional
magnitude because it is the "necessary rule"
fashioned by the Supreme Court to fulfill
its responsibility "to protect people from
infractions by the States of federally
guaranteed rights." Id.
Supreme Court's subsequent holding in Brecht
v. Abrahamson did not lessen that
requirement, but only relieved federal
habeas courts of the obligation of
duplicating the Chapman analysis when state
courts on direct review already have
satisfied this constitutionally mandated
harmless-error review. It is clear to me
that the Brecht Court's new rule assumes
that a finding of harmlessness by the state
courts under the rigorous Chapman rule
always will precede federal habeas corpus
review of the harmlessness question under
the less stringent rule of Kotteakos v.
United States, 328 U.S. 750, 66 S.Ct. 1239,
90 L.Ed. 1557 (1946). See Brecht, 507 U.S.
at 636, 113 S.Ct. at 1721 ("[I]t scarcely
seems logical to require federal habeas
courts to engage in the identical approach
to harmless-error review that Chapman
requires state courts to engage in on direct
of its decision, the Brecht Court adverted
to the State's interest in the finality of
convictions that survive direct review
within the state court system. Id. at 635,
113 S.Ct. at 1720. The Court relied also on
the principles of comity and federalism: "
'Federal intrusions into state criminal
trials frustrate both the States' sovereign
power to punish offenders and their good-faith
attempts to honor constitutional rights.' "
Id. (quoting Engle v. Isaac, 456 U.S. 107,
128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783
(1982)). Federal courts cannot justify
abstaining from the enforcement of an
individual's constitutional right in
deference to the systemic values of finality,
federalism, and comity, however, unless
there has in fact been a good-faith State
effort to protect constitutional rights by
applying the Chapman standard. See id.; John
H. Blume & Stephen P. Garvey, Harmless Error
in Federal Habeas Corpus After Brecht v.
Abrahamson, 35 WM. & MARY L. REV. 163,
183-84 (Fall 1993).
Furthermore, Brecht was a non-capital case;
it did not present, and the Court did not
address, the applicability of its new rule
to capital cases. "[T]he Eighth Amendment
requires increased reliability of the
process by which capital punishment may be
imposed." Herrera v. Collins, 506 U.S. 390,
405, 113 S.Ct. 853, 863, 122 L.Ed.2d 203
(1993). Moreover, because of the unique "severity"
and "finality" of the death penalty, capital
cases demand heightened standards of
reliability. Beck v. Alabama, 447 U.S. 625,
637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392
(1980). In this case, Barber will be
executed with no state court ever having
demanded that the State prove beyond a
reasonable doubt that the constitutional
error did not contribute to the verdict
obtained. By repeating the state court's
error, this court will have failed in its
obligation to "protect people from
infractions by the States of federally
guaranteed rights." See Chapman, 386 U.S. at
21, 87 S.Ct. at 827.
reasons, I conclude that this court in Hogue,
by adopting a per se rule that all
constitutional error on federal collateral
review shall be analyzed under the lenient
Brecht/Kotteakos standard, regardless of
whether the state court applied the correct
harmless-error standard on direct review,
mistakenly failed to recognize its federal
duty to determine whether there has been a
good-faith State effort to protect
constitutional rights by applying the