[Death Penalty Signs] Execution scheduled for Wed. March 29

[Rich Woodward]

Kevin Kincy is scheduled to be executed tomorrow, Wed. March 29.  If 
you are a holder of one of the Stop Execution lawn signs, please post 
it all day long.  Everyone is encouraged to participate in the 
protest to be held at the corner of Texas Ave. and Walton in College 
Station from 5:30-6:00 p.m. 

I paste below information about this case from the NCADP web site.

Rich Woodward

Kevin Kincy, TX - March 29

Do Not Execute Kevin Kincy! 

Kevin Christopher Kincy, a black man, was convicted of capital murder 
and sentenced to death for the murder of Jerome Harville in Houston, 
Texas.  Prosecutors alleged that Kincy and his cousin and co-
defendant Charlotte Marie Kincy went to Harville´s home with the 
intent to rob him.  Harville, who was romantically involved with 
Charlotte, allowed the two inside.  It is purported that upon gaining 
entrance Kincy shot Harville in the head and proceeded to load up 
Harville´s car with stereo equipment, furniture, a pistol and then 
fled.

Kincy´s central concern with regard to how his trial was conducted 
involves Charlotte.  Both Kincy and Charlotte were charged with 
capital murder, but after agreeing to testify against Kincy at trial 
Charlotte´s charge was reduced to first degree aggravated robbery.  
If she did not plead guilty to the reduced charge and testify against 
Kincy, the State retained the right to charge her with capital 
murder.  The prosecution did not call Charlotte as a witness in the 
conviction phase of the trial.  But when called to the stand by Kincy 
during the sentencing phase, Charlotte refused to testify, invoking 
her Fifth Amendment privilege against self-incrimination.  Kincy 
maintains that had Charlotte testified she would have stated that 
Kincy was acting in self-defense when he shot Harville.  Similarly, 
it is Kincy´s contention that the reason the State never called 
Charlotte to testify was to avoid the jury from hearing the 
possibility that Kincy was defending himself.  In a 1995 letter 
written by Charlotte, as well as in a written and signed statement, 
she claims Kincy was acting in self defense.  

In a recent decision, the U.S. Fifth Circuit Court of Appeals denied 
Kincy´s petition for a certificate of appealability (COA) upholding 
Charlotte´s invocation of the Fifth Amendment.  It is the Court´s 
opinion that because Charlotte´s plea agreement did not guarantee a 
specific sentence and, therefore, she had not been sentenced at the 
time of Kincy´s trial, she retained her Fifth Amendment rights.  

Kincy´s case also exemplifies the way in which the AntiTerrorism and 
Effective Death Penalty Act (AEDPA), a federal law enacted in 1996, 
has created an inordinate amount of obstacles that inmates must 
maneuver just to exercise their right to petition for habeas relief.  
In short, the AEDPA placed strict limitations on habeas corpus 
appeals in federal court.  One such obstacle is that in order to 
appeal on the federal level inmates must exhaust the state remedies 
available to them first.  Moreover, because inmates are limited to 
one federal appeal, in order to submit a second or successive 
petition an inmate must ask for a COA from an appellate court.  Thus 
when Kincy sought a COA to prove his innocence based on impeachment 
evidence pertaining to two witnesses that testified against him, the 
Court refused to grant him a COA because he had not presented this 
particular claim in a state court.  As a result of Kincy´s failure to 
"exhaust" his claims in the state courts before presenting it to the 
Fifth Circuit Court of Appeals, a procedural default occurred thereby 
making his claims procedurally barred.  In other words, because Kincy 
failed to jump through the appropriate hoops as dictated by the AEDPA 
he will no longer be able to present the new evidence he has 
regarding his innocence.

Kincy´s case is one of many that have been burdened by procedural 
complications.  Recognizing that ineffective assistance cannot serve 
as cause to excuse procedural default, Kincy took the opportunity in 
his appeal to discuss the uphill battle inmates face with both 
incompetent state habeas counsel and the lack of guiding standards in 
the State´s habeas proceedings.  In the end, Kincy´s petition for 
habeas relief was denied.

Please write to Gov. Rick Perry on behalf of Kevin Kincy!
--
Richard Woodward
www:  http://TCADP-BV.org  
e-mail:   r-woodward at TCADP-BV.org