commutes death sentence of Doil E. Lane
Doil Lane was convicted of murdering 8-year-old
San Marcos girl.
By Katie Humphrey - American
Saturday, March 10, 2007
The only Hays County killer to receive a death
sentence in the last 30 years will instead serve life in prison.
Gov. Rick Perry commuted 45-year-old Doil
Edward Lane's sentence from death to life imprisonment on Friday,
finding that Lane had mental retardation. Lane was convicted in
1994 of killing 8-year-old Bertha Martinez.
A 2002 U.S. Supreme Court decision bars the
execution of killers who have mental retardation.
"It's the right decision from every aspect,"
said Bill Allison, a defense attorney and clinical professor of
law at the University of Texas, who has represented Lane along
with a team of volunteers since 1997.
The U.S. Supreme Court ruled in 2002 that
executing prisoners with mental retardation was "cruel and unusual
punishment" and therefore prohibited by the Eighth Amendment.
Texas law has not changed to reflect the
decision. "The ruling is obviously what is abided by," Perry
spokesman Ted Royer said.
Lane is the second such Texas inmate to have
his death sentence commuted since the Supreme Court ruling. In
2004, Perry commuted the sentence of Robert Smith, also known as
Robert Lee Johnson, who was sentenced to death in Harris County
for the 1990 murder of James Wilcox.
The American Association of Mental Retardation
defines retardation as having an IQ below 70 and an inability to
learn basic tasks.
Bertha disappeared March 20, 1980. After a man
approached a group of children playing outside her San Marcos home,
asking whether they had seen a dog, Bertha followed the man on her
Six days later, searchers found her body in a
tin shed in a field blocks from her home. She had been sexually
assaulted, stabbed and strangled. Her killer had taken her
prescription glasses and her underwear.
Lane, who lived in Hays County at the time,
moved to Kansas. There were no breaks in the case for more than a
Then 9-year-old Nancy Shoemaker of Wichita, Kan.,
disappeared on July 30, 1990, when she went to get soda for a
younger brother with an upset stomach. After a massive hunt, her
body was found in a wooded area. She had been sexually assaulted
An anonymous tip and an FBI psychological
profile led investigators to Lane, who had a job as a dishwasher.
When authorities searched his Wichita home, which he sometimes
shared with his mother, Murlene Broughton, they found more than
200 pairs of children's underwear.
Lane confessed to both murders in 1991.
In his confession, Lane detailed how his
mother's husband, Woody Broughton, lured Bertha to a park, where
Lane and Broughton sodomized her while his mother, Murlene
Broughton watched. The three then took the girl to their home,
where Woody Broughton stabbed Bertha and forced Lane to strangle
her before Murlene Broughton washed the girl's body, Lane said in
Murlene and Woody Broughton were also charged
in connection with Bertha's murder, but the charges were later
dropped. Woody Broughton died in January 1994, and when Lane was
on trial in Hays County, Murlene Broughton was in a mental health
facility in Wichita, Kan.
A Hays County jury deliberated less than two
hours before sentencing him to death at the conclusion of his 1994
trial. Lane was later convicted of murder and sentenced to 40
years in prison in Kansas for killing Nancy.
Defense attorneys in both trials argued that
Lane's diminished mental capacity made him vulnerable to
suggestion and made it easier for investigators to get him to
Lane's 1994 capital murder case was Hays
County's first in more than 20 years. Since then, no one has
received a death sentence in Hays County, said Assistant District
Attorney Wesley Mau.
Mau said the governor's commutation was
expected and that prosecutors did not object to the ruling.
"It was uncontested at the point when it
reached the governor's desk," Mau said.
Lane's case is unusual because his defense team
jumped from the judicial branch to the executive branch when they
filed a petition for clemency with the Board of Pardons and
Paroles after a state District Court found that Lane had mental
retardation, Allison said.
Lawyers had filed a writ of habeas corpus on
Lane's behalf in 1998, but opted to refile it after the 2002
Supreme Court ruling. After a November hearing in Hays County,
state District Judge Charles Ramsay found Lane had mental
retardation, Allison said. With that evidence, the defense lawyers
filed the petition for clemency, he said.
Allison said that a death row warden talked to
Lane about the commutation, but the warden later said that Lane,
who functions at about a third-grade level, didn't understand what
"This is a grown man, in his 40s, who likes
coloring books," Allison said.
In addition to commuting Lane's sentence, Perry
also pardoned James Douglas Waller, who was originally convicted
of aggravated sexual abuse in Dallas County but later exonerated
by DNA evidence, and granted a conditional pardon to Tyrone Brown.
Brown was sentenced to life in prison 17 years
ago after smoking marijuana while on probation for taking part in
an armed robbery in which no one was hurt. He will have to live
with his mother, report to a parole officer, find a job and work
with a therapist, The Dallas Morning News reported in its online
Royer said violating any of those terms will
cause the conditional pardon to be revoked. The Board of Pardons
and Paroles must submit annual reports to the governor concerning
Brown's supervision, which will assist in determining the length
of supervision, Royer said.
Why Is Doil Lane Still on
Despite a Supreme Court ban, mentally retarded
Texas inmates await execution
Radostitz - The Austin Chronicle
October 17, 2003
Doil Edward Lane shuffles into
the small cage that is the visiting room for death row inmates at
the Polunsky Unit in Livingston. His head hangs down as he turns
to let the guards remove his handcuffs. When he looks up, his eyes
are red, his cheeks splotchy and wet. He crinkles up his face,
picks up the telephone that allows him to talk with the visitors
on the other side of the window, and says, "It's hard to talk
about." So hard, in fact, that Lane sets down the phone, puts his
face in his hands, and cries.
Lane is weeping not because he
is facing execution, nor even because of his incarceration on
death row. He's broken-hearted because prison officials have moved
him to another cellblock -- away from his best friend, Marion. Now
he has no one to talk to, no one to read and write letters for him.
"I really miss him," Lane says more than once, whining like a 7-year-old
whose best friend just moved out of town. He cries intermittently,
and then asks, "Do you want to see a picture I drew?" When he's
sure no guard is watching, he pulls from the waistband of his
pants a pencil drawing of his two best friends, Marion Dudley and
Leo Little. Lane says Dudley is the only other inmate who will
take the time to read and explain things to him. Little helped
Lane get books from the prison library -- not books to read (Lane
is essentially illiterate), but books with good pictures so that
Lane could look at them, trace the images, and color them in with
his pencils. His favorite book is The Apple Tree. "It has really
good pictures," he says.
Lane has been on death row for
more than nine years. He was found guilty and sentenced to death
by a jury in San Marcos in 1994 for the kidnapping and murder of
8-year-old Bertha Martinez. The crime was a parent's worst
nightmare -- Bertha was in her neighborhood playing with some
friends when she went off with a couple who said they needed help
looking for their lost dog. Her battered and bruised body was
found many days later in a small shack not far from her home.
Almost 12 years later, Lane
confessed to the crime, saying that his stepfather and mother
forced him to participate (neither was ever prosecuted). His
confession came while he was being questioned in Kansas about the
disappearance of 9-year-old Nancy Shoemaker, who had also been
kidnapped and killed. Lane also confessed to having participated
in that crime, this time saying that his friend Donnie Wacker made
him do it.
Lane's confessions were unusual
in a number of ways. His statements about what happened changed
frequently during questioning; details he recounted were
inconsistent with facts already known to the police; and there was
neither physical evidence nor eyewitness testimony linking Lane to
either crime. But the most unusual thing about Lane's confession
was his situation when he gave it: Lane, then 30 years old and
rather burly, was sitting in the lap of the police officer taking
his statement, with his arm around the officer's neck and his face
buried in the officer's chest, weeping.
Doil Lane is mentally retarded;
doctors believe his brain may have been deprived of oxygen during
his birth. His biological father was 74 years old and died shortly
after Lane was born. His mother and her new husband neglected him,
and later abused him both psychologically and sexually. Lane was
special-education classes at school, and consistently did poorly
Eventually the state of Kansas stepped in, removed him from his
home and sent him to the Brown School in San Marcos, a residential
treatment center for children with developmental disabilities.
Testing from his time at the Brown School, and later for his
appeals, shows that his intellectual functioning is
significantly impaired, that his full scale IQ is 65-67 -- among
the lowest 1% of the population -- and that his mental and
emotional development is that of an 8- to 10-year-old child.
In 2001, the
Texas Legislature passed a bill that would have banned the
execution of the mentally retarded. Gov. Rick Perry called it
unnecessary and vetoed it, saying, "We do not execute mentally
retarded murderers today." The governor's statement was inaccurate
on its face -- nobody involved in the capital cases of Mario
Marquez and Terry Washington disputes that both were mentally
retarded at the time of their Huntsville executions in the late
1990s -- but at the time, Perry could at least have argued that no
national standard required Texas to refrain from such executions.
Then last year,
in a case called Atkins v. Virginia, the U.S. Supreme Court held
that the "evolving standards of decency" in this country would no
longer tolerate the execution of people with mental retardation,
noting that no other Western democracy allows their execution. The
court thereby officially abolished capital punishment for the
national reinstatement of the death penalty in 1976, prosecutors
had been acting under the assumption that seeking a death sentence
for a person with mental retardation was permissible as long as
the jury was able to consider the issue in deciding whether to
impose a sentence of death. The Atkins decision changed that --
but the Supreme Court left it to the individual states to adopt
procedures for ensuring that no person with mental retardation
would be executed. The court gave scant guidance as to what those
procedures should be, but did suggest that a finding of mental
retardation require that the defendant have subaverage
intellectual functioning, significant limitations in adaptive
skills, and that the deficiencies manifest before the age of 18 --
requirements consistent with both medical and governmental
definitions of mental retardation.
opinions of the death penalty, Texans should wonder why, more than
a year after the Atkins decision, Doil Lane remains on death row.
in Lane's case has never disputed that he is mentally retarded. In
fact, at trial, Hays Co. District Attorney Michael Wenk presented
the fact of Lane's mental retardation as part of the expert
opinion regarding whether Lane would be a danger to the community
if he were not sentenced to death. In his questioning of the
state's expert witness on the issue of future dangerousness, Wenk
asked the expert to assume "that [Lane] has been diagnosed as
borderline or mildly retarded, with an IQ in the range of 70."
Wenk told the jury: "There is no question that there is something
wrong with [Lane]. ... He's mildly retarded; he comes from a
dysfunctional family. We're not disputing that."
Lane's attorney, Austin lawyer and UT law professor Bill Allison,
filed a motion asking the trial court to remove Lane from death
row because of his mental retardation. According to Rick Wetzel,
former chief counsel for the Court of Criminal Appeals, the
statutory process requires that the trial court forward such
motions to the CCA within a short period of time. However, for
reasons that the Hays Co. clerk's office can't explain, that has
not been done in Lane's case.
office has never responded to Lane's motion, and District Attorney
Wenk declined comment, replying instead that "pursuant to the Code
of Professional Responsibility ... all prosecutors are ethically
mandated not to discuss the facts or other substantive matters
relevant to 'ongoing' criminal prosecutions [emphasis in
original]." Wenk did not respond to a question regarding what
obligations the Code of Professional Responsibility might place on
a prosecutor when the Supreme Court declares that a person he has
prosecuted is no longer eligible for the punishment imposed. So,
16 months after the Supreme Court ruled that a person with mental
retardation cannot be executed, Doil Lane remains on death row,
and the prosecutor has yet to move to comply with the court's
inaction means to Doil Lane, it is costing Texas taxpayers at
least an extra $6,500 a year. The Texas Department of Criminal
Justice estimates that the cost of housing an inmate on death row
is about $22,500 per year, while the yearly cost of housing
somebody in the general prison population is around $16,000.
Bryce Benjet of Texas Defender Service, a private nonprofit
capital defense firm in Austin, nobody knows exactly how many
people with mental retardation remain on death row in Texas. No
state agency is required to track whether an inmate on death row
is mentally retarded, and prosecutors have taken the position that
it is up to the defense to raise the issue. Unfortunately, most
defense counsels do not have sufficient resources to do the
required testing, nor to hire an investigator to search for the
According to the
statute governing appointment of counsel in post-conviction
proceedings, if an inmate wants to rely on a new ruling of the
Supreme Court issued after he filed his first round of appeals,
the inmate must first make a showing that he may be entitled to
relief before he is entitled to appointment of counsel. As Benjet
says, "The inmate has to prove that he is mentally retarded in
order to be appointed an attorney who will be paid to develop the
evidence of mental retardation."
In part because
Texas Defender Service attorneys have helped a number of inmates
gather the materials to make the initial showing of mental
retardation, the Court of Criminal Appeals has ruled since last
June in 38 cases raising the issue, and found in 28 cases that the
inmate is entitled to a hearing to see whether he meets the
standard set in the Atkins case. However, not a single inmate has
been removed from death row based on an Atkins claim.
The person most
likely to be the first removed from death row based on Atkins is
Willie Mack Motton. Motton was convicted and sentenced to death
for the 1984 robbery and murder of Deborah Davenport in Lufkin.
Davenport was working at a gas station when Motton and two friends
robbed her, and according to prosecutors, Motton stabbed and
killed her in order to eliminate witnesses. (For unknown reasons,
all the pleadings in Motton's case misspell his name, as either "Moddon"
1984 conviction was reversed on appeal because evidence regarding
his mental retardation had not been properly admitted at his first
trial. In 1993, he was again convicted and sentenced to death
during a trial in which the fact that he is mentally retarded was
not contested by the state. Last June, Motton's attorney, Greg
Wiercioch of Texas Defender Service, filed a motion for a stay of
his execution and relief based upon the Atkins decision. The stay
was granted, and at a March hearing Wiercioch and the prosecutors
began discussing a settlement. Wiercioch suggested that in return
for dropping the death penalty, Motton would plead guilty to other
as yet uncharged offenses and waive any right he has to parole.
District Attorney Clyde Herrington had been involved in Motton's
first trial and was lead prosecutor in the second. He had a great
deal of time and energy invested in securing the conviction and
the death sentence. He also had a personal reason to be interested
in the outcome of the case -- he had gone to high school with
Deborah Davenport, and was in the same graduating class as her
of Herrington's potential conflicts, Assistant District Attorney
Janet Cassels was assigned to research the options in the Motton
case. Cassels says she "couldn't find anybody who could tell me
what the procedure should be." She was troubled by the Atkins
decision, not only because it dramatically changed the law in
capital cases, but because she believes the Supreme Court was
somewhat disingenuous in declaring a categorical exemption
prohibiting the execution of people with mental retardation
because it "doesn't lend itself to a bright-line [precise] rule."
that the Supreme Court's reasoning for adopting a prohibition
against the execution of the mentally retarded -- that their
abilities to reason and control their impulses are diminished and
therefore their moral culpability is also diminished -- does not
take into account that there is a great disparity in abilities
even among those officially diagnosed as mentally retarded.
But despite her
misgivings about Atkins, Cassels -- and later Herrington as well
-- came to believe that it was likely that the courts would grant
relief to Motton, and their biggest concern became that he would
then be eligible for release on parole as early as 2005.
Herrington met with the victim's family members and explained the
situation. The family eventually agreed that they would feel more
secure with a deal which would, with certainty, keep Motton in
prison for the rest of his life, rather than take the risk that
they would not prevail on the mental retardation issue and Motton
could be out of prison in just a few years.
In April, Motton
pled guilty to a number of previously uncharged crimes, including
arson, aggravated assault with a deadly weapon (in prison), and
possession of a deadly weapon in a penal institution. He also
agreed to consecutive life sentences, meaning that he will spend
the rest of his life in prison. In exchange, prosecutors agreed to
recommend that Motton's death sentence be overturned on the
grounds of mental retardation. The case has been pending in the
Court of Criminal Appeals for six months. Assuming that the CCA
affirms the trial court decision, Motton should soon be moved from
death row into the general TDCJ population.
Rick Wetzel of the CCA, Motton's case is thus far unique -- the
only Texas instance in which prosecutors have agreed that Motton
meets the standard for mental retardation and, based on Atkins, a
trial court has recommended that the death sentence be overturned.
In future cases raising an Atkins claim, the court will have to
determine exactly what relief should be granted should an inmate
be able to show that he is mentally retarded. The question then
will be whether the sentence should be automatically changed to a
life sentence, or whether the case should be sent back for a
retrial. The law seems to allow either result. But, adds Wetzel,
it would be "kind of ridiculous. Why would they want to retry the
case when the best they could get would be a life sentence?"
over these cases -- and any future cases affected by a question of
mental retardation -- could have been resolved by the Legislature.
In the 2003 regular session, Sen. Rodney Ellis, D-Houston, offered
a bill virtually identical to the 2001 bill vetoed by the governor
that would have created a procedure allowing a jury to make a
pretrial determination whether a defendant claiming mental
retardation met the definition set forth in Atkins.
health and mental retardation communities, as well as the criminal
defense bar, supported the bill; however, the state district
attorneys largely supported a bill drafted by former prosecutor
and Austin Rep. Terry Keel. Under Keel's bill, the issue of mental
retardation would be decided by the jury after a capital trial's
penalty phase -- after the same jury had already convicted the
defendant of capital murder, determined that he or she was a
future danger, and agreed on a sentence of execution. Only then,
if the same jury agreed on a finding of mental retardation, would
the defendant be ruled ineligible for execution.
House and Senate could not agree on a compromise, and no bill made
it to the floor. Andrea Keilen, who was on the team which tried to
reach a compromise piece of legislation, described the Keel bill
this way: "That legislation was not about complying with Atkins,
but about not letting Atkins affect the way we handle death
penalty cases in Texas." By failing to act, the Legislature
undermined at least part of the intent of the Atkins decision --
removing people with mental retardation from death row.
How Many Wait?
Both Lane and
Motton express frustration with life in the Polunsky Unit -- they
say the staff is disrespectful, and they are isolated 24 hours a
day, even during recreation time. Lane complains that his crayons
were taken from him when death row was moved from the Ellis Unit
in Huntsville. In a questionnaire he completed last year, in his
barely legible handwriting he wrote: "You tuck away my clores when
you can not hurt no one with a box [of] 24 cloros." Asked what he
might look forward to should he be removed from death row, Lane is
uncomprehending. "But where would they take me?" he asks.
says he doesn't really care where TDCJ puts him when he is removed
from death row -- "Anywhere is better than here." He is looking
forward to having a little more room to move around, and a chance
to play checkers or dominos. He is mostly looking forward to being
able to attend church, which has not been allowed since death row
moved to Livingston. Motton says that his strong faith has helped
him survive on death row, but he wants to be able to worship with
Doil Lane -- and
perhaps dozens like him among the 449 inmates in the Polunsky Unit
-- will remain on death row, essentially ignorant of the political
and legislative turmoil that surrounds him. For now, Lane spends
his days coloring his drawings, looking at his picture books, and
waiting, until some court finally gets around to deciding whether
-- and when -- he will be released from death row.
"You tuck away my clores when you
can not hurt no one with a box [of] 24 cloros." -- Death row
inmate Doil Lane (Photo
By Jana Birchum)