Arturo Diaz Executed In Texas
For Murder Of Michael Nichols
By Michael Graczyk - Associated Press
September 26, 2013
HUNTSVILLE, Texas -- A South Texas man was put
to death Thursday for a slaying 14 years ago in which the victim
was bound with shoelaces and strips of bedding, stabbed 94 times
and robbed of $50.
The execution of Arturo Diaz, 37, was carried
out after the U.S. Supreme Court refused a last-ditch appeal to
block his lethal injection. It was the 13th execution this year in
Texas, the nation's most active capital punishment state.
Diaz smiled and blew a kiss to several
witnesses watching through a window, including his mother and
He then turned to the father of his victim,
watching through an adjacent window to the death chamber. "I hope
this can bring some relief for you and your family," he told him.
He spoke in Spanish to his own friends and
relatives, telling them: "I am with God."
He also added that he hoped his fate "serves as
an example for some youngsters. ... Think about it before you do
He was pronounced dead 17 minutes later, at
6:30 p.m. CDT.
"It was way too easy," Forrest Nichols, whose
son was murdered in 1999, said as he stood watching Diaz.
Texas Department of Criminal Justice officials
have used pentobarbital as the single execution drug for more than
a year, but Diaz became the first in the state given the sedative
procured from a vendor or manufacturer the prison agency has
declined to identify.
Diaz's reaction to the drug was similar to
other Texas inmates who have been executed with pentobarbital. He
took several deep breaths, began snoring and ceased movement in
less than a minute.
The expiration date of the department's
existing inventory passed this month, possibly diluting its
potency. Like other death penalty states, Texas officials needed
to go to nontraditional sources because the usual suppliers bowed
to pressure from capital punishment opponents and refused to make
their product available.
In his appeal to the Supreme Court, Diaz's
attorney, James Terry Jr., argued recent high court rulings
allowed another look at previously unsuccessful appeals where
inmates had shoddy legal help. Diaz had deficient counsel at his
2000 trial in Hidalgo County and early in the appeals process, his
Diaz, from Las Milpas, a small town between
McAllen and the Mexican border, was convicted of the April 1999
slaying of Michael Nichols, 25, at Nichols' apartment in McAllen.
Diaz also was given two life terms for attempted capital murder
and aggravated robbery of another man who survived.
Cregg Thompson, the lead prosecutor at Diaz's
murder trial, said evidence showed Diaz tried to steal Nichols'
pickup truck but couldn't open a locked gate at the apartment
complex. His shoe print was found on the keypad box at the gate,
and his DNA was found on a beer bottle at Nichols' apartment.
Diaz said he was high on drugs and alcohol
during the attack on Nichols. He also confessed to a slaying that
took place a month earlier. In that case, the victim's head was
stomped and face beaten with a hammer. Diaz also received a
94-year prison term for aggravated sexual assault for raping a
"You know it's going to take some time for all
the appeals and everything to go through," Thompson said this week
of Diaz's execution. "But when you say 14 years, that sounds like
an awful long time."
Arturo Eleazar Diaz
Jul 8, 2007
A Las Milpas native convicted of
stabbing a man nearly 100 times during a 1999 robbery moved one
step closer this week to expected execution.
On Tuesday, a federal appeals
court rejected Arturo Eleazar Diaz's challenge to his death
sentence for that crime, despite the 31-year-old's claims that his
family members were never called to the stand during the penalty
phase of his trial.
Diaz has previously confessed to
stabbing Michael Ryan Nichols, of McAllen, 94 times in the head
neck and chest. But the convicted killer's relatives said Thursday
they still believe he is innocent.
"The system has been unfair,"
Diaz's grandmother, Maria Elena Camacho, said in Spanish. "My
grandson is not guilty."
Diaz's relatives argued that his
childhood filled with poverty, neglect, violence and self-mutilation
may have swayed a jury toward a more lenient punishment. But they
were never asked to testify on his behalf, according to sworn
affidavits included in his appeal.
But Tuesday, the New Orleans-based
5th U.S. Circuit Court of Appeals agreed with a federal district
judge who had already ruled Diaz's attorneys were following their
client's instructions when they did not call family members to
During a 2002 interview with The
Monitor, Diaz admitted that he had stabbed Nichols and his
roommate John Shepard while high on marijuana, cocaine and
alcohol. But he maintained throughout the meeting - conducted at a
state prison in Livingston - that he had no idea what he was doing.
"I did it, but my mind says it
wasn't me," he said.
Diaz also confessed to killing
another man - David Anthony Nichols, of Combes - by stomping on
his head and bludgeoning his face beyond recognition with a hammer
during a March 25, 1999, fistfight.
The 2 killings were found to be
unrelated, despite the last names both victims shared.
Charges in connection with David
Nichols' death were dropped because no one came forward to
identify the victim.
It was Camacho, who had raised
Diaz from the age of 5, who eventually turned her grandson in.
After seeing his photo in news reports, she led authorities to his
sister's home on April 11, 1999.
Police charged Diaz with capital
murder and aggravated robbery for Michael Nichols' death and
attempted capital murder for the attack on Shepard, who survived
"I turned him in," Camacho said
in 2002. "I told him, 'If you're guilty, you have to pay.'"
At the time, her grandson told
her that he killed Michael Nichols in self-defense during a fight
over the use of the man's pickup truck. But evidence presented
during his trial showed that Michael Nichols' hands and feet were
bound shortly before his death.
The stabbing left deep wounds in
his liver, kidney, lungs and heart and cuts to his head and neck,
prosecutors argued. The tip of the knife broke off in his rib.
Diaz never testified on his own
behalf during the portion of his trial that determined whether he
was guilty or not guilty of the charges. His attorneys called no
witnesses, arguing instead that the case did not merit a capital
After an Hidalgo County jury
found him guilty, his lawyers only called one witness - a
psychologist who testified that Diaz had suffered head injuries
during several fights and that those injuries could have impaired
his judgment and perception of reality.
But the testimony was undercut
by a written report, prepared by the practitioner, that portrayed
Diaz as uncooperative and accused him of trying to fake mental
On Feb. 16, 2000, Diaz was
sentenced to two concurrent life sentences and the death penalty.
Although he now claims his
family's testimony could have helped his case, he expressed
discomfort during the 2002 interview with having his relatives in
the courtroom during his trial.
"When they sentenced me, it felt
weird," he said. "My family was there. I knew it hurt them to hear
Despite this week's setback,
Diaz's appeal could still be considered by the U.S. Supreme Court,
and no execution date has been set, Camacho said.
"They did a very bad thing for
denying his appeal," she said. "He didn't do it."
Shoddy lawyering can prove fatal in death row
September 24, 2006
With his client's life on the line, the lawyer
appointed to file the death row inmate's final state appeal
cobbled together arguments that were incomplete, vague and, in at
least one place, just plain wrong.
They perplexed the prosecutor and provoked a
606-page response from the judge.
"Applicant totally misinterprets what actually
occurred in this case," State District Judge Noe Gonzalez of
Edinburg wrote about one of the attorney's claims.
Appalled by the lawyer's work, a committee of
attorneys and citizens formally complained to the agency that
polices attorney misconduct, the State Bar of Texas.
The attorney, Mark Alexander of McAllen,
remains on the state's list of 136 lawyers who can be appointed to
the cases that challenge convictions and help ensure no one
unfairly convicted reaches the execution chamber.
The State Bar dismissed the grievance against
Alexander. His former client, Arturo Eleazar Diaz, remains on
death row, arguing the courts never really reviewed his case
because Alexander botched the appeal.
Confusing as they may have been, Alexander's
arguments are the last words Texas courts are likely to hear about
Diaz. They remain fixed in the record, an example of a dilemma
apparent to observers of all political stripes:
Texas tolerates and even finances questionable
legal work in the closing chapters of its death penalty cases —
the court challenges known as applications for writs of habeas
"It's a problem. It needs to be addressed,"
said Judge Cheryl Johnson, a Republican on the Texas Court of
Criminal Appeals. "But I don't think there are any easy solutions
Examples of troubling habeas cases abound,
activists say. Just last month, Texas executed Justin Fuller,
whose appointed lawyer filed a habeas challenge with rambling
claims, glaring typos and incoherent repetitions.
Another execution is scheduled in January for
an inmate whose appointed lawyer filed two pages — upward of 100
is more common — that raised only one claim, and experts say it
was fatally flawed.
Yet another habeas attorney failed to show the
main witness against his client had recanted. With help from other
lawyers, that inmate, Anthony Charles Graves, now is off death row
and awaiting a retrial.
The habeas attorney's job is to catch
misconduct and mistakes made by the defendant's trial lawyers, as
well as the investigators, prosecutors, judges and jurors who
touched the case beforehand.
If the state habeas attorney misses a detail,
the inmate may never get another chance to raise it. An inmate can
try filing in federal court, but, except in rare extenuating
circumstances, federal judges won't consider anything that wasn't
already raised in state court.
It's an area of law that goes largely unchecked
by traditional safeguards against shoddy legal work. For instance:
The State Bar disciplines lawyers who file
nothing at all for their clients, but not necessarily attorneys
who file worthless paperwork. It leaves those to malpractice
Lawyers who mishandle divorces, employment
disputes or other civil matters can be sued by their clients. But
not in criminal cases. The law essentially forbids malpractice
claims from convicts.
The Court of Criminal Appeals decides who's
qualified to handle habeas appointments, but has done little, if
anything, to ensure lawyers actually live up to their credentials.
Trial attorneys in death penalty cases must, by
law, perform to certain constitutional standards. When, for
example, lawyers fail to adequately investigate, their clients can
get do-overs. Not in Texas' habeas cases. By contrast, 14 of the
nation's 37 states with the death penalty hold habeas attorneys to
the same standards as trial lawyers.
"We don't have any watchdog organization that
checks for quality control" in capital habeas cases, said
Catharine G. Burnett, a South Texas College of Law professor and a
member of the committee that complained about Alexander.
A poor track record
Habeas corpus is the Latin term for the
centuries-old legal tool that double-checks the fairness of a
conviction or punishment. In capital cases, it acts as the
Unlike the direct appeals that automatically
follow every death sentence and examine what might have gone wrong
at trial, applications for writs of habeas corpus dig deeper.
Not confined to what occurred in the courtroom,
habeas attorneys are supposed to consider the whole picture, from
what detectives did at the crime scene to what jurors discussed in
the deliberation room.
It's a daunting responsibility, and many
qualified attorneys steer clear of it, partly because they say the
amount the state will pay — up to $25,000 — won't cover what's
required for the sizable task. Comparable cases in federal court
normally pay up to $35,000 in legal fees alone, not including
Texas started supplying habeas lawyers for
death row inmates in 1995. Seven years later, a nonprofit monitor
of capital cases, the Texas Defender Service, looked at what the
state was getting for its money.
Reading all but a dozen of the 263 habeas
applications bankrolled by Texas, the nonprofit found nearly 40
percent had fatal technical flaws and provided "nothing for the
courts to consider."
Since the study, "nothing has improved," said
Andrea Keilen, director of the Defender Service.
Mark Alexander was preparing a habeas
application around the time the Defender Service completed its
study. His client, Arturo Eleazar Diaz, had been convicted of
stabbing his victim dozens of times during a 1999 robbery in
Filed in 2002, Alexander's petition crammed 19
separate arguments into 35 pages. Its brevity came at the expense
When Alexander complained the prosecutor had
made inflammatory remarks to the jury, he never cited specifics.
Judge Gonzalez responded with a shrug, writing: "It is practically
impossible to discern which particular comment, if any, he
believes had been objectionable."
When Alexander criticized the trial attorneys
for failing to discover potentially significant evidence,
specifically "the tape" and "all the witnesses," he never
identified the tape. Or the witnesses.
Two paragraphs long, his final assertion was
that jurors hadn't been told how long parole laws would keep Diaz
locked up if he received a life sentence — crucial information for
any jury weighing between prison time and lethal injection.
"Simply not true," the judge stated in his
order rejecting all Alexander's claims. The record showed the jury
had been given precisely that information.
What Alexander's petition failed to include was
Diaz's contention that his trial lawyer spent only 15 minutes
discussing the plea bargain offered by prosecutors.
Had Diaz better understood the plea and the
risks of trial, the inmate says, he would have accepted a life
sentence. When he tried raising this issue in federal court, the
judge there said it was too late.
No way to grade quality
By chance, Diaz's case caught the attention of
a State Bar group concerned about the quality of appointed counsel,
the Committee on Legal Services to the Poor in Criminal Matters.
Alarmed by the Defender Service's study,
committee members decided to look at random habeas petitions.
Overall, they weren't impressed. One case especially disturbed
The committee's minutes show the group voted
8-1 to file a grievance.
Committee members wouldn't name in interviews
the subject of their complaint, but court documents identified
Alexander as the target and, although he says it was unjustified,
he acknowledged the grievance.
Three months ago, committee members learned the
State Bar's disciplinary office had dismissed the complaint
against Alexander without a hearing. By its standards, his work
didn't violate the bar's rules.
"It was frustrating to us," said Michael K.
Moore, a committee member and political science professor at the
University of Texas at Arlington. "It never saw the light of day."
Reached by phone, Alexander said the grievance,
together with the heart attack he survived about a year ago, have
convinced him to steer clear of capital cases.
Alexander said his medical problems have
blurred his memory so that he no longer remembers enough to
explain every assertion in Diaz's case. But, he insisted he
labored long and dutifully on the case.
The $13,040 bill he submitted to Hidalgo County
listed 326 hours of work, the equivalent of two months. Primarily,
Alexander said, he knew the habeas represented Diaz's last chance
to present new claims.
As a result, Alexander said he alleged things
he couldn't prove simply to put them on the record. That way, if
someone eventually found evidence to bolster them, the issues
could be resurrected in federal court.
It wasn't a perfect legal brief, Alexander
concedes, but in his defense he says it was only his second habeas
case. "I was learning," he said.
"It wasn't like I just neglected it or whatever,"
he added. "I had reasons for what I did. I think my reasoning was
Neglecting a case would violate ethical rules
for attorneys. The State Bar regularly disciplines lawyers who
collect fees and then file nothing or abandon a case before it's
over. But if attorneys file glaringly bad claims, the bar
typically does nothing.
The bar's investigators find it difficult to
prove that someone who worked on a brief for more than 100 hours
neglected the case, said Betty Blackwell, chairwoman of the State
Bar's Commission for Lawyer Discipline.
Grading the quality of legal briefs is another
"Are you going to discipline somebody for a C,
D or F?" she said. "The rules don't really address that."
Blackwell, like many others, believes the job
of watchdog belongs to the Court of Criminal Appeals, the tribunal
that reviews every habeas application and vets the list of
attorneys who can be appointed to capital habeas cases.
Members of the court, in turn, want the State
Bar to take the lead.
Cheryl Johnson, one of two judges at the court
who vet the list of habeas lawyers, said the nine judges there
disagree about what to do with attorneys who submit abysmal habeas
Some believe that only a formal reprimand from
the State Bar would justify yanking a lawyer's name from the
roster. That was the issue with at least one attorney whose name,
Johnson said, doesn't belong on the list.
"I've been trying to get him off since I
reached the court in 1999," she said, "and I cannot get any
support for it because he has no disciplinary history with the
A check on the system
As with anything involving the death penalty,
personal biases cloud the discussion of habeas cases.
Judges and lawyers comfortable with capital
punishment won't necessarily be troubled by a habeas application
that fails to make any reasonable arguments.
In their eyes, lousy arguments in a habeas case
are likely the sign of a defense lawyer grasping at straws because
the conviction was fair and just.
"I'm not aware of and I don't believe there are
cases where there's gross injustices based on ineffective
assistance at the post-conviction writ stage," said Williamson
County District Attorney John Bradley, who once worked at the
Court of Criminal Appeals.
By contrast, opponents of the death penalty
believe reasonable claims can be found in most capital cases. To
them, superficial habeas applications signal a lack of effort or
"In every case I know of ... where someone
didn't do their duty as a habeas lawyer and someone else came
along and did it, there were new claims that were found," said Jim
Marcus, a lawyer with the University of Texas Capital Punishment
Marcus can point to such a case in Bexar County.
As much as any, it demonstrates why the quality of habeas counsel
Ricky Eugene Kerr was sentenced to death in
1995 for the murder of his new landlady and her 42-year-old son
after they cut off his water and moved to evict him.
His appointed habeas lawyer, Robert A. McGlohon
Jr., had three years' experience as a lawyer and, though he had
been a staff attorney for the Court of Criminal Appeals, he never
had handled a death penalty case.
Suffering from a debilitating illness and a
serious misunderstanding of habeas law, McGlohon filed a single,
generic claim critiquing habeas law. Nowhere did his brief say
anything about Kerr's trial.
The trial court, State District Judge Sharon
MacRae, rejected the petition. So did the Court of Criminal
A few months later, Marcus, then with the
Defender Service, interceded. He took the case to federal court,
where he showed how McGlohon had mishandled Kerr's habeas
application. The federal judge was appalled.
Concluding that Kerr never had a fair habeas
petition, U.S. District Judge Orlando Garcia kicked the case back
to the state courts. Confronted by the judge's ruling, the Court
of Criminal Appeals relented and made an unusual exception. It
allowed him to refile his habeas petition.
The second time around, Kerr was represented by
Marcus and Kathryn Kase, an attorney with the Defender Service.
They had plenty to say about Kerr's trial.
They showed that Kerr's trial attorneys had
never shown jurors a full picture of the man on trial. The defense
team had been so confident it would win, it only started preparing
for the punishment phase after the guilty verdict.
By then it was too late to complete the
detailed research expected in capital cases. Kerr's relatives
testified, but the jury never heard several potentially mitigating
details about the tattooed defendant with a history of domestic
violence and petty crimes.
Kerr had endured an abusive childhood and had
helped care for two brothers with mental retardation and an ailing
grandmother. He had a history of head injuries, drug abuse and
learning disabilities, possibly because of fetal alcohol syndrome.
At least one juror said the new information
might have convinced her to spare Kerr, and Judge MacRae revised
her previous findings. Earlier this year MacRae sent her
conclusions to the Court of Criminal Appeals, where they are under
This time, she urged the court throw out Kerr's
Arturo Eleazar Diaz