Tuesday, April 26, 2011
Media Advisory: Cary Kerr scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Cary D. Kerr, who is scheduled to be executed after 6 p.m. on Tuesday, May 3, 2011. A Texas jury sentenced Kerr to death in March of 2003 for sexually assaulting and murdering Pamela Horton.

FACTS OF THE CRIME

In the early morning hours of July 12, 2001, the body of Pamela Horton of Haltom City was found in a street by a taxicab driver. An autopsy determined that Horton had been beaten and strangled.

On the evening of July 11, Horton left a nightclub with Cary Kerr. After escorting Horton from the nightclub, Kerr returned briefly to the club and whispered to another woman that he was taking Horton home and that he would be right back.

An ambulance was summoned shortly after 2 a.m. the next day when Horton’s body, wearing shorts but nothing else, was discovered in the street.

After the paramedics had wrapped the victim’s body, Kerr approached them and asked them to pull back the sheet because he believed he could identify her. The paramedics responded that they would not pull back the sheet but asked Kerr to tell them who it was if he knew. Kerr stated that he was the one who found the body and had called them. The paramedics responded that no one “called” them; they were on the scene because they had been approached by a taxicab driver. Kerr then responded that he had flagged down the taxi. Kerr further stated that he had not stopped his car upon discovering her body because he thought she might be a robbery decoy and that he had seen a black sedan with two male passengers parked nearby. Kerr also stated that he recognized the woman as someone who frequented bars in the area.

Police officers arrived at the scene, secured it, and talked to Kerr. The officers saw a purse in Kerr’s car and asked whose purse it was. Kerr first stated it was the victim’s and then added, “If that’s the girl I picked up, maybe it’s hers.” He became very nervous after this admission. Kerr retrieved the purse from his vehicle for the officers’ inspection. A broken, comb-like hair clip was attached to the handle of the purse. During their conversation with Kerr, the officers noticed a long strand of blonde hair on his face. Kerr did not have blonde hair but the victim did. One of the officers took the strand of blonde hair. The officers later arrested Kerr at the scene.

A search of Kerr’s home yielded a brassiere, panties, and a plastic “tooth” for a comb or a hair clasp. The brassiere was severely torn in two places. Examination of the comb-like hair clip revealed that it had been manufactured with fourteen teeth but eight had broken off. The comb tooth retrieved from Kerr’s residence was the same color as the hair clasp, and microscopic analysis showed a match. The forensic examiner testified that considerable force would be needed to cause the observed damage to the hair clasp.

The brassiere and the panties contained DNA from the victim, and DNA testing showed that semen found in the victim matched Kerr’s DNA profile.

EVIDENCE OF FUTURE DANGEROUSNESS

Michelle Landdreth and Kerr were married from 1987 to 1991. During their marriage, Kerr injured Landdreth on several occasions. He would beat and choke her—resulting in black eyes, busted lips, and bruises. She did not seek medical attention or press charges because she was afraid of Kerr.

Diana Forgeson and Kerr were married from 1993 to 1996. Due to excessive drinking, Kerr became angry and jealous and would hit Forgeson if she said anything wrong or looked wrong.

Cindy Huffman and Kerr were romantically involved from 1989 to 1996. Kerr was often violent, both hitting her and threatening her with a gun. Huffman reported Kerr to the police and obtained several restraining orders against him.

On August 10, 1999, about 7 p.m., a woman returned home with some decorating items from a store. When she got out of her car, Kerr—who was house-sitting next door —was waiting. Kerr inquired whether the woman wanted to come over for a swim. The woman joined Kerr for a swim, but when she attempted to go home, Kerr pushed her back into the pool.Kerr grabbed the woman and asked her to show him her breasts. Kerr had both of the woman’s hands behind her back. When the woman threatened to scream, Kerr responded that he would kill her and dump her body into a lake. Kerr then held the woman’s head under water. She was choking when she managed to surface. Kerr ripped the woman’s shirt and brassiere, and demanded oral sex. The woman submitted. The next day, the woman contacted police. Kerr pled guilty to assault causing bodily injury and was sentenced to one year in jail.

Officer Tim Clontz testified that, while transporting Kerr to the Haltom City Police Department, Kerr began cursing and kicking the passenger window. During the change-over into jail attire, Kerr threw his blue jeans at Officer Clontz. Kerr then threatened to kill Officer Clontz. A Tarrant County jailer testified that when she was transferring Kerr to a different cell, she found contraband, including tennis shoes, and attempted to confiscate them. Kerr displayed a bad attitude and, when the jailer turned away, he tossed the shoes at her and hit her with one..

PROCEDURAL HISTORY

07/12/01 - Kerr sexually assaulted and murdered Pamela Horton.
09/20/01 - A Tarrant County grand jury indicted Kerr for capital murder (re-indicted 01/13/03)
03/25/03 - A Tarrant County jury convicted Kerr of capital murder.
03/28/03 - The 297th District Court of Tarrant County sentenced Kerr to death.
10/20/04 - Kerr filed an original application for a state writ of habeas corpus.
01/12/05 - The Texas Court of Criminal Appeals upheld Kerr’s conviction on direct appeal.
08/31/05 - The Texas Court of Criminal Appeals denied Kerr’s request for habeas relief.
05/30/06 - Kerr filed a petition for a federal writ of habeas corpus.
12/20/06 - The Texas Court of Criminal Appeals dismissed Kerr’s subsequent application.
09/17/09 - A Fort Worth federal district court denied habeas relief and issued final judgment.
06/30/10 - The U.S. Court of Appeals (5th Circuit) affirmed denial of habeas relief.
01/10/11 - The Supreme Court denied Kerr’s petition for certiorari review.
01/19/11 - The 297th District Court of Tarrant County scheduled execution for May 3, 2011.

Texas Execution Information Center by David Carson.

Cary Kerr, 46, was executed by lethal injection on 3 May 2011 in Huntsville, Texas for the rape and murder of a 34-year-old woman.

On 11 July 2001, Kerr, then 36, was socializing with Pamela Horton and her friend Jennifer York at a Fort Worth nightclub. York danced briefly with Kerr, but as she walked away, he grabbed her arm, so she punched him. York told Horton that she didn't like Kerr, but Horton defended him as being "a nice guy." Horton had been seen socializing with Kerr, who lived in the same trailer park as she, in Fort Worth bars for about a month.

Later, Horton, who was intoxicated, told York she was ready to go and needed a ride home, but York was not yet ready to leave. Kerr took Horton outside, then returned briefly and whispered to Cathy Dawson, "I'm taking this drunk bitch home and I'll be right back." Kerr then took Horton to his home, where he raped and strangled her with his hands. He then put her body in his car. After driving around a little, he pushed her body out of the car.

At 2 a.m., a taxi driver spotted Horton's body lying in the street. The driver located an ambulance. The paramedics went to the scene and found the body. She was wearing only a pair of shorts, with no underwear. Only the top button of the shorts's button fly was fastened. There was "fuzz" on the victim's feet, indicating she had recently worn socks.

After the paramedics wrapped the body, Kerr approached them. He asked them to pull back the sheet because he believed he could identify the body. The paramedics responded that they would not uncover the body, but asked him to tell them who he thought it was. Kerr said he was the one who found the body and had called them. The paramedics responded that no one called them; they had been approached by a taxi driver. Kerr then said that he saw the body while driving by. He saw a black sedan parked nearby with two males sitting in it and thought the body might be a robbery decoy, so he didn't stop, but he flagged down the taxi. Kerr said he thought he recognized the woman as a regular at some of the local bars.

Next, police officers arrived at the scene and talked to Kerr. They saw a purse in his car and asked whose it was. Referring to the victim, he answered, "If that's the girl I picked up, maybe it's hers." He retrieved the purse from his car and gave it to the officers. In it, they found a plastic hair clip, of which 8 of the 14 teeth were broken off, and the hinge was damaged. The officers also noticed a long strand of blonde hair on Kerr's face. Horton had long blonde hair, but Kerr had brown hair. The officers then arrested him.

A search of Kerr's home yielded a torn bra, panties, and a plastic tooth that matched the broken hair clip.

An autopsy indicated that the victim had a fractured hyoid bone and that the cause of death was manual strangulation. The victim also suffered bruises on her head, on and around her eyes, on her chest, and arms. In addition, she had abrasions in various places. The medical examiner testified that the abrasions were inflicted after her death and were consistent with a body being thrown onto the street from a moving vehicle. The victim also had semen in her mouth. The blood alcohol concentration at the time of the autopsy was 0.465.

DNA testing showed that the semen in the victim's mouth matched Kerr's DNA. The bra and panties found in Kerr's apartment contained DNA matching the victim.

At Kerr's trial, the defense argued that the state could not prove that the victim was raped. Without rape as an aggravating factor, the crime would not qualify as capital murder, and thus would not be eligible for the death penalty.

Kerr had a prior conviction for assault causing bodily injury. In August 1999, he invited a woman who lived next door to a house where he was house sitting to come over for a swim. She did, and as she was attempting to go home, Kerr pushed her back into the pool. He grabbed her, asked her to show him her breasts, and held her hands behind her back. When she threatened to scream, he told her he would kill her and dump her body into a lake. Kerr then held the woman's head under water until she started choking. He then ripped open her shirt and bra and forced her to give him oral sex. The next day, the woman contacted police. Kerr pleaded guilty and was sentenced to a year in jail. The woman testified against Kerr at his punishment hearing.

Additionally, two ex-wives and an ex-girlfriend testified that Kerr was often violent. Michelle Landdreth, his wife from 1987 to 1991, testified that he beat her - resulting in black eyes, busted lips, and bruises - and choked her, but she did not seek medical attention or press charges because she was afraid of him. Diana Forgeson, his wife from 1993 to 1996, also testified that Kerr hit her. Cindy Huffman, his girlfriend from 1989 to 1996, testified that he often hit her and threatened her with a gun. Huffman reported Kerr to the police and obtained several restraining orders against him.

A jury convicted Kerr of capital murder in March 2003 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in January 2005. All of his subsequent appeals in state and federal court were denied.

From 1982 until February 2011, all executions in Texas, as well as in most other states using lethal injection, were performed using a series of three drugs. The first drug in the series was sodium thiopental, a sedative. In late 2010, a nationwide shortage of sodium thiopental began forcing states to either obtain the drug from overseas or find alternatives.

Texas performed two executions in February 2011 using sodium thiopental it had in stock, but for Kerr's execution, it switched from the three-drug series to a single drug, pentobarbital. Pentobarbital has long been used across the U.S. for veterinary euthanasia, as well as for human euthanasia in Oregon and the Netherlands. Oklahoma used pentobarbital in combination with other drugs for an execution in December 2010, and Ohio used pentobarbital alone for an execution in March 2011.

In an interview from death row, Kerr expressed worries about being the first prisoner in Texas to be put to death with pentobarbital. "It's very scary," he said. "I'm not volunteering to test nothing for the state." In an apparent misunderstanding, he said "This is a drug not even supposed to be used on pets and yet they're saying we're using it on a human being? That's preposterous it's come to that."

Kerr also denied that he raped and murdered Horton. He said after leaving the bar, they went to his place, had sex, and then had an argument. Kerr said she left his home alive. "I've never denied being with her," he said. Kerr said he was "half drunk" after consuming "about 18 beers". After he told detectives he and Horton had been arguing, "They didn't look at nobody. They looked at me and me only."

Kerr dismissed the testimonies from the four women at his punishment hearing who described his violent acts toward them. "They just made up all that stuff and the jury bought it hook, line, and sinker," he said.

Kerr repeated his claim of innocence on the execution gurney. "To the state of Texas: I'm an innocent man," he said in his last statement. "Never trust a court-appointed attorney." Kerr then asked his friends to search for the person who he claimed committed the crime. "Check that DNA," he said. "Check Scott." The lethal injection was then started. As the drug began to take effect, he sighed deeply and said, "Here we go. Lord Jesus. Jesus." He was pronounced dead at 6:19 p.m.

Reuters News

"Texas executes first inmate using drug used on animals," by Corrie MacLaggan. (May 4, 2011)

AUSTIN, Texas (Reuters) - Texas on Tuesday carried out its first execution using a sedative often used to euthanize animals. Cary Kerr, 46, was put to death by lethal injection for the 2001 sexual assault and strangling of Pamela Horton.

The new drug, pentobarbital, replaced sodium thiopental in Texas' three-drug execution protocol. The change was necessary because Hospira Inc. of Illinois announced in January it would stop making the sodium thiopental after Italy objected to Hospira manufacturing an execution drug in that country. That caused a shortage of the drug throughout the United States. Ohio and Oklahoma have already switched to use of pentobarbital in executions.

Another Texas inmate, Cleve Foster, had been scheduled to be the first person in the state executed using the new drug last month. But Foster received a temporary stay of execution from the U.S. Supreme Court over concerns his state-appointed lawyers were ineffective.

Kerr was pronounced dead at 6:19 p.m. on Tuesday, said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice. "To the state of Texas: I am an innocent man," were among Kerr's final words, according to Lyons. "Never trust a court-appointed attorney. I am ready, warden."

For his last meal, Kerr requested a long list of food, including lasagna, spaghetti, pizza, fried chicken, baked chicken, tacos, pork ribs, deep-fried mushrooms, a cheeseburger, french fries, quiche and ice cream, according to Jason Clark, a spokesman for the Department.

Kerr was the third prisoner to be put to death this year in Texas, which executes more prisoners than any other state. Texas executed 17 people in 2010, down from 24 in 2009.

Huntsville Item

"Texas inmate executed using new drug mix," by Tori Brock. (Tue May 03, 2011, 10:34 PM CDT)

HUNTSVILLE — Texas used a new three-drug combination to execute a condemned inmate for the first time Tuesday. Cary Kerr, 46, of Dallas was pronounced dead at 6:19 p.m. Tuesday in the death house at the Huntsville Unit, nine minutes after the administration of a lethal dose of drug that included for the first time pentobarbital in place of sodium thiopental, which is no longer available. The state has used sodium thiopental since 1982.

Just before the lethal dose of drugs began to flow, Kerr proclaimed his innocence in the 2001 rape and murder of 34-year-old Pamela Horton in Haltom City near Fort Worth. “To the state of Texas: I'm an innocent man,” Kerr said in his last statement. “Never trust a court-appointed attorney.” Kerr then asked his friends to search for the person he claimed committed the crime. “Check that DNA,” he said. “Check Scott.” As the sedation drugs began to take effect, Kerr sighed deeply and said, “Here we go.” “Lord Jesus,” he said. “Jesus.”

Earlier Tuesday, the U.S. Supreme Court refused to block Kerr’s execution. Kerr's appeal didn't challenge the drug switch. Rather, he argued that a lawyer didn't properly represent him in earlier appeals, according to the Associated Press.

Kerr told the AP he first met Horton when they lived in the same trailer park, then ran into her the evening of July 11, 2001, at a bar where he was celebrating passing the test to get his commercial truck driving license. "I've never denied being with her," he said recently from death row. Kerr said he was "half drunk" and Horton was drunk when he decided to take her to his place where they had sex and then argued. She left alive, he insisted.

Authorities said Kerr pushed Horton out of a moving vehicle after sexually assaulting her, which caused her death. A taxi driver discovered her body in the street at 2 a.m. the following morning.

Kerr requested a final meal of pizza, fried chicken, baked chicken, lasagna, tacos, pork ribs with picante sauce, cheeseburger, quiche with meat, cheese and broccoli and ice cream for dessert.

Kerr was the third Texas prisoner executed this year. The next execution, of Gayland Bradford of Dallas County, is scheduled June 1.

ProDeathPenalty.Com

The victim in this case was Pamela Horton. Although another man was her boyfriend, Pamela had been seen at bars in Cary D. Kerr's company for about a month. On the evening of July 11, 2001, Pamela Horton socialized with Jennifer York and Kerr at a bar called the Swan Club, and the three later moved to a nearby nightclub called Cowtown. Jennifer briefly danced with Kerr but when he grabbed her arm as she was walking away, she punched him. Jennifer did not like Kerr and told Pamela so, but Pamela defended him as being "a nice guy." Pamela Horton later told Jennifer that she needed a ride home, but Jennifer was not yet ready to leave. Pamela was clearly intoxicated. In her testimony, Jennifer York characterized Pamela Horton as an "impatient" person, who could be predicted to look for someone else to take her home immediately, rather than wait until Jennifer was ready. Later, a bartender noticed Pamela leaving with Kerr. After escorting her from the nightclub, Kerr returned briefly and whispered to Cathy Dawson, "I'm taking this drunk bitch home and I'll be right back."

At 2:00 a.m. on July 12, a taxicab driver spotted Pamela Horton's dead body, lying in the street. The taxicab driver located an ambulance and notified the paramedics of the body's location. Pamela was wearing shorts but nothing else: no shirt, socks, shoes, or underwear. Only the top button of the shorts' button-fly was fastened. There was "fuzz" on the victim's feet, indicating the victim had recently worn socks.

After the paramedics had wrapped the victim's body, Kerr approached them and asked them to pull back the sheet because he believed he could identify her. The paramedics responded that they would not pull back the sheet but asked Kerr to tell them who it was if he knew. Kerr stated that he was the one who found the body and had called them. The paramedics responded that no one "called" them; they were on the scene because they had been approached by a taxicab driver. Kerr then responded that he had flagged down the taxi. Kerr further stated that he had not stopped his car upon discovering her body because he thought she might be a robbery decoy and that he had seen a black sedan with two male passengers parked nearby. Kerr also stated that he recognized the woman as someone who frequented bars in the area.

Police officers arrived at the scene, secured it, and talked to Kerr. The officers saw a purse in Kerr's car and asked whose purse it was. Kerr first stated it was the victim's and then added, "If that's the girl I picked up, maybe it's hers." The victim's boyfriend would later identify the purse as one he had bought for her. He became very nervous after this admission. Kerr retrieved the purse from his vehicle for the officers' inspection. A broken, comb-like hair clip was attached to the handle of the purse. During their conversation with Kerr, the officers noticed a long strand of blonde hair on his face. Kerr did not have blonde hair but the victim did. One of the officers took the strand of blonde hair. The officers later arrested Kerr at the scene. On the way to the police station, Kerr started kicking the back window of the patrol car and began "cussing" and saying he was going to get out of the car.

The victim's body exhibited a large number of injuries, some of which were inflicted before death, and some after death. Injuries to the victim while she was still alive included: bruising of the right temple and the top of the right eye, a bruise on the top side of the left eye or eyelid, tiny pinpoint bruises on the neck and the collarbone, a bruise on the chest above the right breast, and bruises on the arms. Also, the hyoid bone of the neck was fractured. Post-mortem injuries included abrasions on the trunk of the body, the front part of the breasts, the abdomen, the left arm, the right leg, and the right foot. These post-mortem abrasions were "gliding abrasions" that could be found on someone thrown out of a motor vehicle. It was determined that the victim also had semen in her mouth. According to the deputy medical examiner who performed the autopsy, the bruises on the neck indicated that the cause of death was manual strangulation and that the death was a homicide. A forensic anthropologist testified that the broken hyoid bone was also a sign of manual strangulation. The deputy medical examiner indicated that the injuries and sexual activity occurred within a short time of each other, but he conceded in cross-examination that the physical condition of the body was not inconsistent with consensual sexual activity followed by a homicide.

DNA testing showed that the semen in the victim's mouth matched the defendant's DNA profile. The probability of a match with another person was 1 in 21 trillion for Caucasians, 1 in 159 trillion for those of African descent, and 1 in 615 trillion for Southwestern Hispanics. Hair analysis of the strand of blonde hair picked off Kerr's face showed similarities to the victim's hair but with enough differences that the hair examiner could say only that the strand could not be ruled out as having come from the victim. Pamela's blood alcohol concentration at the time of autopsy was determined to be 0.465 - over five times the legal limit. The deputy medical examiner estimated that the concentration probably had peaked at 0.5 and was on its way down, and that the victim would have to have been a "seasoned drinker" to be able walk around with that much alcohol in her body.

A search of Kerr's home yielded a brassiere, panties, and a plastic "tooth" for a comb or a hair clasp. The brassiere was severely torn in two places. In one place there was a complete separation of the strap from the cups in the front, and in another place there was a tear on one of the cups at the side. A forensic examiner testified that the tears were significant enough to interfere with the brassiere's function, and he testified that a great deal of force would be required to produce the tears in question. Examination of the comb-like hair clip revealed that it had been manufactured with fourteen teeth but eight had broken off. In addition, part of the gripping surface was missing and the hinging mechanism was damaged. The comb tooth retrieved from Kerr's residence was the same color as the hair clasp, and microscopic analysis showed a match. The forensic examiner testified that considerable force would be needed to cause the observed damage to the hair clasp. The brassiere and the panties contained DNA from the victim.

Pamela Horton's aunt, Joann Mazyck, who said she helped raise Horton, wished Kerr would at least show some remorse. "I want him to be punished," she said. "I hate to use 'dead.' I just want to know he's not here."

Stand Down Texas Project

Office of Capital Writs Involved in Kerr Litigation

UPDATE: Convicted murderer Cary Kerr tonight became the first Texas inmate to be executed with the state's new three-drug lethal injection cocktail, including pentobarbital.The U.S. Supreme Court today denied Kerr's request for a stay.

The Tribune's original story about Kerr's case is below.

Less than a month before his scheduled execution, Cary Kerr had no attorney. And the ones he had had up to that point, he argues, didn’t do him much good. Now, he’s asking the U.S. Supreme Court to stop his execution — scheduled for tonight — and allow him another opportunity to argue for his life. “This was a life history that wasn’t told,” says Brad Levenson, Kerr’s new attorney. “No one has done this investigation.”

Levenson is director of the state’s new Office of Capital Writs. Created by lawmakers in 2009 to provide better representation for people on death row who can't afford to pay their own lawyers to challenge their sentences, the office opened in September 2010. Kerr’s case is the first the office has taken with an impending execution date. And prophetically, the appellate lawyer whose previous work Kerr lambasts is the same one who helped spur lawmakers to create the office of writs in the first place.

Kerr was sentenced to death in 2003 for the rape and murder of Pamela Horton. He’s not arguing that he didn’t strangle the woman and leave her badly beaten corpse in the middle of the street in a Fort Worth suburb. Rather, Kerr says, his attorneys never gave the jury a chance to hear about his abusive upbringing and mental problems, a background he believes could have persuaded jurors or appellate courts to issue a sentence other than death.

Lawyers for Texas Attorney General Greg Abbott argue, however, that Kerr’s original trial lawyer did present jurors with mitigating evidence. And, they say, the courts have not recognized that death row inmates have a constitutional right to effective appellate attorneys.

After he was sentenced, Richard Alley was appointed as Kerr’s state habeas corpus attorney. The main goal of habeas proceedings is to uncover new evidence that either proves the inmate’s innocence or shows a constitutional violation during trial proceedings. Alley, though, didn’t do any investigating, Kerr contends. He never even retrieved Kerr’s case file. When he drafted the habeas pleading, he copied and pasted from older filings in Kerr’s case and others he had handled. Kerr’s first name was misspelled on the cover page. One section of the pleading compared Horton’s murder to “any other shooting death.” Horton was strangled. The pleading said Kerr’s youth should be a mitigating factor, but Kerr was 39 at the time of his trial. The petition was quickly denied.

Levenson argues that Alley should never have been appointed to handle Kerr’s case because the State Bar of Texas had twice disciplined him for unethical behavior, including using false evidence and making false statements. In 2006 — shortly after an investigative report from the Austin American-Statesman about the shoddy work of Alley and other death row lawyers — he was removed from the Texas Court of Criminal Appeals list of capital appointments because of his work on Kerr’s case and others. And reports about Alley’s work and the troubled capital appellate system were a major factor that led lawmakers to establish the office of writs in 2009.

Levenson found out about Kerr from other lawyers who told him the death row inmate didn’t have an attorney even though he was about to be executed. Despite having little time for investigation and a small staff, Levenson says, on April 6, he took on Kerr’s case and delved into his past. “What normally takes a year and a half, we did in two and a half weeks,” he says. They interviewed family members, including Kerr’s sister and stepsister and his biological mother, and talked to Kerr’s friends and neighbors. They reviewed school and jail records.

The story they found, Levenson says, was disturbing. Kerr was born to alcoholic parents. His mother left when he was young, and he was raised mostly by his sister, who was only a couple of years his senior. His youth was riddled with poverty, and the children often went hungry. Kerr’s father and grandfather introduced him to alcohol when he was about 10. He was sexually assaulted twice, once at age 5 and again at 12. His stepmother openly disdained him and routinely slapped him in the face in public. By the time Kerr was a teenager, his father and stepmother repeatedly kicked him out of the house; at one point he lived in an old car under a neighbor’s carport.

“This is a pretty sad and traumatic childhood, and I think a jury should hear all the evidence before they make a decision,” Levenson says. “We found this in two-and-a-half weeks. What could competent habeas counsel have found if they had worked for much longer?”

The primary question in the Kerr case, however, is whether he even had a right to effective habeas counsel. So far, the courts have ruled the U.S. Constitution makes no such guarantee. Recent action by the U.S. Supreme Court have fueled hopes among defense lawyers that the nation’s top court might be ready to take up that issue. Last month, the court stayed the execution of Texas death row inmate Cleve Foster, who has made similar ineffective counsel claims. The court also stayed the execution of Daniel Cook in Arizona, another case that raises questions about ineffective counsel. “For years, people have wanted that question answered,” Levenson says.

ALIVE

About Cary D. Kerr
DOB 10/06/1964
Date of crime 07/12/2001
On death row since April 2003
We mourn about Cary Kerr, executed on May 3, 2011...

The Crime

The victim in this case Ms. Pamela Horton was found on the side of the road wearing only a pair of cut off blue jean shorts.

Horton and Cary Kerr lived in the same trailer park for 5 ½ months, they both knew each other, they were friends and they spent time together from time to time. The night Pamela Horton was murdered, she and Cary had spent some time together earlier that same evening. They engaged in oral sex “only” and afterwards Pamela Horton left his home and started walking to her home at around 12:30 am. She never made it.

Her body was found at 2:05 am halfway between her home and Cary’s home lying on the side of road. She was beaten, strangled and then run over by a vehicle according to police reports and the state prosecution. The police found a tire print on the upper leg of Ms. Horton and stated that she was run over in an attempt to cover up the crime.

When the police arrived at the place where Ms. Horton’s body lay in road, Cary went to the scene and tried to tell the police that he knew her and that they were even out together earlier the evening. Cary tried to tell the police about a dark colored car that was parked close to the body but the police ignored him and told him to wait in a police car until a detective arrived. After a detective arrived Cary was allowed to talk to him and allowed police to search his vehicle. The detective told Cary that since he was out with the victim earlier the same night that that was good enough for him. Cary was then arrested.

After waiting almost two years for a trial, Cary D. Kerr was convicted in March of 2003, and sentenced to death by lethal injection.

The Case of the State

The case of Cary D. Kerr is 100% circumstantial and factually has no evidence that Mr. Kerr committed any crime at all.

The state prosecutor withheld DNA evidence from Mr. Kerr’s defense lawyers that showed Mr. Kerr was not the attacker! Only when a DNA expert testified for the state did defense attorneys learn about the DNA evidence that excluded Mr. Kerr from this crime. The state prosecutor told the jury that they had to disregard this DNA evidence that does not belong to Mr. Kerr. The prosecution stated that just because it does not match to him does not mean that it is not his! The prosecution stated, “don’t even think about it!”

The prosecution told the jury that Mr. Kerr had just met Ms. Horton that night and preyed upon her because she was drunk. The prosecution further stated that Mr. Kerr was a lion and that he has preyed upon women for years and has eluded police for years. They stated that Mr. Kerr was a serial rapist, a lion preying on gazelles.

The prosecution told the jury that Mr. Kerr sexually assaulted Ms. Horton, while beating her with a bloody club and strangling her to death. He then placed her dead body into his vehicle and took her out to some remote woods, but before he could get there Ms. Horton “while dead“ accidentally opened the car door and fell out onto the street. The prosecutor then stated that when Ms. Horton fell out of the vehicle Mr. Kerr in an attempt to cover up the crime ran her body over with his vehicle. The prosecutor told the jury that the reason they could not find any evidence of this is because Mr. Kerr went home, took a shower and then cleaned his home of all evidence!

The lead detective in Mr. Kerr’s case Glen Diviney has a record of tampering with evidence. Mr. Glen Diviney testified to going out to Mr. Kerr’s home at 4:00 am to have a look around. Mr. Diviney did not have a warrant, did not have Mr. Kerr's permission and was alone. He stated that the door war not locked, but he did not enter. Ms. Horton’s brassiere was found torn, laying just inside the door next to Mr. Kerr clean and folded laundry on the couch. Mr. Glen Diviney was supposed to lead the search of Mr. Kerr’s home at 7:00 am but for some strange reason, Mr Diviney did not show up and told crime scene investigators to go ahead without him.

The jury was not allowed to hear that this detective has tampered with evidence in other case(s). The trial judge refused the defense this evidence in Mr. Kerr‘s favor.

Why is Cary Kerr innocent?

There was semen found in the victim’s vagina that did not match to Cary Kerr. There were skin-cells found on the victim’s brassiere that did not match to either Mr. Kerr or Ms. Horton. This proves that someone other than Mr. Kerr attacked and sexually assaulted Ms. Horton.

There was a blonde hair that police removed from Mr. Kerr’s beard stubble and trace analyst could not match this single hair to the victim. This hair was not the same length as the victim’s hair but only similar in color as being blonde. Ms. Horton was not the only blonde in the club and Mr. Kerr did dance with other women, some blonde and some brunette. The tire print that was found on the victim’s upper leg did not match to any of Mr. Kerr’s tires on his vehicle.

The victim was beaten bloody with what the prosecutors called a bloody club. The victim had 26 cuts on her head and upper body and lost some amount of blood. Police and crime scene investigators never found any blood or tissue in Mr. Kerr’s vehicle that was said to be the vehicle that ran Ms. Horton over. Police and crime scene investigators never found any blood or tissue on or even under Mr. Kerr’s vehicle. Police and crime scene investigators never found any blood or tissue at Mr. Kerr’s home and never found any blood or tissue on Mr. Kerr himself. The police and crime scene investigators also never found any kind of weapons, especially this bloody club they said was used by Mr. Kerr. When Mr. Kerr’s home was searched there were no signs of any violence and no evidence to support the prosecution's allegations.

An eyewitness told defense investigators that he seen a white Land Rover stop at where the victim’s body lay in the road and a white male got out and this white male was about five foot nine to five foot ten inches in height and had a tattoo on his left shoulder. Mr. Kerr does not own and was not driving a white Land Rover and Mr. Kerr is six foot one inch tall and had no tattoos on either of his shoulders. Mr. Kerr’s vehicle was a Dodge Raider suv (small 2 door ) and it was blue, silver and black. During trial the eyewitness changed the color of the “Land Rover” to blue (only) and stated that the car he had seen was a “Land Rover” “For Sure a Land Rover”.

The medical examiner, Doctor Konzelman, testified that he could not determine a sexual assault by Mr. Kerr, the defendant. The sexual assault was what made this case a capital case. We have prepared a Fact Sheet with excerpts from the trial record. These excerpts show the injustice against Cary and also back up that he was wrongly convicted..

If you are a lawyer or investigator and would like to look deeper in this case, please contact us and we are going to send you the complete trial-transcrip as pdf-file: info@alive-gegen-todesstrafe.deThis e-mail address is being protected from spambots, you need JavaScript enabled to view it

Other Strange Points

The medical examiner testified that Ms. Horton fought her attacker back and that he found evidence that shows this, but then went on to testify that he does not know what he did with the fingernail clippings and scrapings from his examination. Where is this apparently lost DNA? The lead detective has a history of TAMPERING WITH EVIDENCE and it is on his employment record as well as in the court record. There was an ex-police officer that was willing to testified for Mr. Kerr about the detectives tampering charges. The trial judge did not allow the jury to hear this information.

Police let a dark colored vehicle leave the crime scene that was parked close to the body upon their arrival and the emergency technician (EMT) pointed this vehicle out to police as suspicious. This is the exact same vehicle that Mr. Kerr pointed out as well but the police ignored it and allowed it and the driver to leave without checking on the driver or taking down information.

The prosecution re-indicted Mr. Kerr 60 days before trial was to begin adding an additional charge of robbery. Mr. Kerr was accused of taking a wallet/day planner from the victim. There was a young woman that sat in the court room with the victim's family through the entire trial and listened to several people testify to this missing wallet/day planner including the victim's family that testified that this wallet/day planner was missing. At the very end of trial and during the last break the prosecution told the judge that this young lady has just approached them and told them that she has had this missing wallet/day planner for the last 23 months. Why didn’t this young woman come forward at the beginning of all of this testimony? Because this was a scheme by the prosecutor to make Mr. Kerr look bad and let several people testify in order to find the jurors' hearts.

The prosecutor told the trial judge that the state would like to dismiss the robbery element of the indictment because of this new news. The trial judge failed to order the jury that they had to disregard all of the robbery testimony because the wallet/day planner was in fact never missing.

How was it possible that Cary Kerr got convicted

Cary D. Kerr was convicted because of over zealous prosecutors and lazy, poor court appointed attorneys. Mr. Kerr’s court appointed attorneys did very little to help Mr. Kerr. They did not do a full investigation of their client's case and refused to let Mr. Kerr review evidence that the state was going to use against him. His attorneys told Mr. Kerr that there was no evidence to review. Mr. Kerr's attorneys also told the jurors several times that they as defense attorneys do not have to do anything except just show up. They did not have to prove that Mr. Kerr is innocent and it is the state's job to prove that Mr. Kerr broke the law! “All we have to do as Mr. Kerr’s attorneys is just show up.”

The lead detective in Mr. Kerr’s case stated that he did not do a full investigation like he was supposed to have done. He stated: “I should have done a full investigation but I did not, I wish that I did!” The prosecutors in Mr. Kerr’s case told the jury they had to disregard DNA evidence that excluded Mr. Kerr. That they have not to even think about it! The prosecution further told the jury that Mr. Kerr was a serial rapist. That he has preyed on women and has eluded police for a long time. This was a lie and defense attorneys objected to it, but still it was said and heard by the jury. Mr. Kerr has never been convicted of any rape, has no history of violence and has no felony convictions.

All in all Cary D. Kerr’s conviction became possible because the prosecutors in his case lied and mislead the jury and told jurors to disregard DNA evidence. This violated Mr. Kerr’s constitutional rights and the laws of the state of Texas. Mr. Kerr’s court appointed attorneys failed to assist Mr. Kerr with effective counsel and failed to investigate. In Mr. Kerr’s case they were unable and/or unwilling to challenge the prosecutors claims against Mr. Kerr, but they did show up!

Cary D. Kerr needs help! The situation for Cary Kerr has not changed. He is still represented by an attorney that is not willing to file a proper appeal. His attorney will not even respond to Mr. Kerr’s letters or visit with Mr. Kerr. He has ignored Mr. Kerr’s cries for help completely! His court appointed federal appeal attorney did not file any of Mr. Kerr’s issues from the trial. His attorney was supposed to take Mr. Kerr’s case back into the state courts so that all the issues in Mr. Kerr’s case including the DNA would be filed. He said he would, but he lied to Mr. Kerr.

Mr. Kerr’s court appointed state habeas corpus attorney has refused to correspond with him and also refuses to visit with him on a legal visit to discuss Mr. Kerr’s case. Mr. Kerr’s attorney filed the direct appeal as Mr. Kerr habeas corpus along with verbatim issues that are raised on all of the attorney’s appeals. Mr. Kerr’s attorney would not file issues that he was instructed to file by Mr. Kerr himself. His attorney did not raise the DNA issues or any other issues from Mr. Kerr’s trial. This attorney has been reported to the Texas state bar over and over and was suspended by the federal courts for a period of one year for filing the same type of brief that he filed Mr. Kerr’s case! Mr. Kerr’s habeas attorney has managed to make himself known to news papers and magazines. News week magazine did a story on this attorney back in the year 2000, and the Austin American statesman has reported on him and his incompetent practice in year 2006.

Cary D. Kerr is 100% innocent of this crime and has the evidence to prove it! His cries to the courts have been unheard. His letters to the courts have been unanswered. Cary needs help! He needs your help! Cary asks for pen-friends that are willing to give mental support as well as physical. He is searching for legal support as well. Please don’t let Cary become another statistic in the Texas Death Penalty Murder Scheme! He has the evidence to prove his innocence, he just needs help to get this evidence into the courts.

Please, let us all come together for a good cause. This cause is called LIFE and it is worth living. If you would like to contact Cary Kerr personally, you can write to the address below, if you have questions or need further information please contact ALIVE e.V. at info@alive-gegen-todesstrafe.de

Cary D. Kerr # 999449
Polunsky Unit
3872 FM 350 South
Livingston, TX 77351 USA

Death Row - USA

April 23, 2004

How to start? Well, I guess I'll start by writing a little about myself first. I am a white male of 39 years of age born October 6th 1964 in Dallas, Texas.

I spent half my childhood in the country with grandparents. The rest in the Dallas Fortworth area. I am six (6') foot one and a half (1½') tall, weigh in @ 224 ibs. I work out some to stay in good shape. I have brown hair, green eyes. I do not have a good picture to send or I would send one. Fact is, I do not have any pictures of myself at all. I enjoy outside activities such as motorcycling, camping, golf, swimming and lake side cookouts. I also enjoy writing and I have a good sense of humor.

I would enjoy a pen-friend to write to and to help me through some of my frustrations.

I have no financial support in order to purchase writing supplies such as stamps, envelopes, paper and pens and other much needed supplies such as soaps, toothpaste, deodorants and a fan or chothes, also snacks and food items. I also believe in being honest up front. I pray that I receive a pen-friend that will understand my situation.

I have never been in serious trouble before or prison, in fact, the worst trouble I have had is a D.W.I. (Driving while intoxicated) in 1994.

I will also tell you I am 100% innocent of the crime I was charged with. I am fighting to prove my innocence but it is very difficult with court appointed attorneys who will not even write and discuss the case! I have DNA that helps prove my innocence along with several other facts. The problem is trying to get that information to the criminal courts by appeal.

All I ask of my pen-friend is a chance. You then can decide for yourself.

I am seeking a pen-friend male or female that would not mind helping me in order to write and have a few supplies. I will write honest letters (No games) and I would like honesty in return. All I need is a chance to prove myself. Thank You.

Very Sincerely

Cary D. Kerr # 999449
Polunsky Unit D.R.
3872 FM 350 South
Livingston - Texas 77351 C.A.5 (Tex.),2010

Kerr v. Thaler, 384 Fed.Appx. 400 (5th Cir.) (Habeas)

Background: Defendant convicted of capital murder in Texas state court filed petition for federal habeas relief. The United States District Court for the Northern District of Texas, Terry R. Means, J., 2009 WL 2981906, denied petition, and defendant applied for certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) capital murder defendant had no Fifth or Fourteenth Amendment right to grand jury indictment; (2) defendant's Sixth and Fourteenth Amendment rights were not violated when jury was not instructed that it would have to find lack of mitigation beyond reasonable doubt; (3) defendant had no Eighth Amendment or due process right to have jurors instructed on consequences of failing to agree on special issues alleged at punishment phase of case; and (4) grant of federal habeas relief to defendant convicted of murder and sentenced to death in Texas state court, on theory that wording of Texas's future dangerousness special issue was unconstitutionally vague, would amount to a prohibited retroactive application of rule of constitutional law not yet announced at time defendant's conviction became final, in violation Teague anti-retroactivity doctrine. Denied.

PER CURIAM:

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Cary Kerr (spelled “Carey Kerr” in some court records) was convicted of capital murder and sentenced to death. Kerr brought an application for a writ of habeas corpus in the appropriate federal district court. The application was denied and so was a Certificate of Appealability (“COA”). Upon review of his application here, we also DENY a COA.

In March of 2003, a jury in Tarrant County, Texas convicted Kerr of sexually assaulting and murdering Pamela Horton. The Texas Court of Criminal Appeals affirmed Kerr's conviction. During the pendency of his appeal, Kerr sought a writ of habeas corpus in a Texas trial court, which was denied. Subsequently, he petitioned the district court for habeas relief under 28 U.S.C. § 2254. The court determined that Kerr had not made an adequate showing of entitlement to a writ of habeas corpus. It further denied a COA.

In order to appeal the district court's denial of habeas relief, a petitioner must obtain a COA either from the district court or from this court. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA only if the petitioner makes “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). That showing requires a petitioner to “demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citation omitted). When habeas relief is denied on procedural grounds, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination.” ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir.2007) (citation omitted).

Kerr seeks a COA on the grounds that his constitutional rights were violated in these ways: (1) the indictment failed to set forth aggravating factors later submitted as special issues; (2) the prosecution was not required to disprove mitigation beyond a reasonable doubt; (3) the grand jury was not required to consider the aggravating factors warranting the capital murder charge; (4) the instructions did not inform the jury of the consequences of its failure to agree on a special issue; (5) the trial court rejected Petitioner's requested jury charge on a special issue relating to future dangerousness; (6) the future dangerousness special issue did not properly charge the burden of proof; and (7) the current method of execution by lethal injection violates the Eighth Amendment.

We will group some of his arguments for analysis.

A. Defects in the Indictment

Kerr's first and third claims allege deficiencies in the indictment. Specifically, Kerr asserts that his Fifth and Fourteenth Amendment rights were violated because the indictment failed to allege aggravating factors that were later submitted to the jury in the punishment phase of his trial. Kerr relies on the Fifth Amendment's right to a grand jury indictment in support of this argument. He also cites one of our decisions which held that aggravating factors rendering a defendant eligible for the death penalty in a federal prosecution must be stated in the indictment. See United States v. Robinson, 367 F.3d 278, 288 (5th Cir.2004).

As the district court noted, however, the right to a grand jury indictment has not been extended to the States through the Fourteenth Amendment. See Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Indeed, in Robinson, we addressed only the requirement of a grand jury indictment in a federal prosecution. See Robinson, 367 F.3d at 288. Although Kerr argues that the grand jury clause “could and should be” extended to the states, neither the Supreme Court nor this court has done so to date.

To the extent that Kerr argues that the inadequate indictment impermissibly expands the prosecutor's discretion to seek the death penalty, he has not identified any precedent depriving state prosecutors of that discretion. Accordingly, reasonable jurists would not find the district court's resolution of these claims to be debatable or wrong.

B. Burden of Proof for the Mitigation Special Issue

Kerr alleges that his Sixth and Fourteenth Amendment rights to a jury trial were violated because the State was not required to prove beyond a reasonable doubt that no sufficient mitigating evidence warranted a sentence less than death. In Texas, once a defendant is found guilty of capital murder, the jury must answer two special issues unanimously to impose death. See Tex.Code Crim. Proc. Ann. art. 37.071 § 2. The first assesses the “future dangerousness” of the defendant, which the State is required to prove beyond a reasonable doubt. Id. § 2(c). The jury is asked “[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Id. § 2(b)(1). If answered in the affirmative, the jury next addresses issues of mitigation, asking “whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.” Id. § 2(e)(1). The mitigation issue assigns no burden of proof. If the jury answers “yes,” the defendant receives a life sentence. Id. § 2(g) If it answers “no,” the punishment is death. Id.

Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Kerr asserts that a jury must be required to find a lack of mitigation beyond a reasonable doubt in order to impose death. We disagree. We have previously addressed the necessity of an assigned burden of proof for the mitigation special issue in Texas's death penalty scheme. See Rowell v. Dretke, 398 F.3d 370, 376-78 (5th Cir.2005). We observed in Rowell that no Supreme Court or Circuit precedent requires mitigation to be proved beyond a reasonable doubt. Id. Consequently, we concluded that relief was not available under the AEDPA standard. Id. Kerr's claim in this regard is foreclosed. See also Avila v. Quarterman, 560 F.3d 299, 314-15 (5th Cir.2009) (finding that the court was bound by precedent to reject petitioner's argument that the jury was required to find a lack of mitigating evidence beyond a reasonable doubt).

C. Jury Instructions About Failure to Agree on a Special Issue

Kerr claims that his due process rights, as well as his Eighth and Fourteenth Amendment rights, required that the jury be instructed on the consequences of failing to agree on the special issues alleged in the punishment phase. The crux of Kerr's complaint is that jurors were not informed that a single “hold-out” juror could prevent the imposition of the death penalty and effectuate a life sentence. The Texas sentencing scheme requires a unanimous “yes” as to the future dangerousness issue and a unanimous “no” on the mitigation issue in order to impose the death penalty. Tex.Code Crim. Proc. Ann. art. 37.071 § 2(d)(2) & (e). The statute also requires that ten or more jurors vote together to answer the future dangerousness issue “no” or the mitigation issue “yes”-either of which would result in a life sentence. Id. The statutory instruction does not inform the jury that a failure to meet the “ten vote” requirement results in a de facto life sentence.

The Supreme Court has previously rejected this argument. Jones v. United States, 527 U.S. 373, 381-83, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). The Court concluded that a jury need not be told what happens procedurally when a verdict cannot be reached. While the jury may not be “affirmatively misled regarding its role in the sentencing process,” a court is not required to instruct the jury “as to the consequences of a breakdown in the deliberative process.” Id. at 381-82, 119 S.Ct. 2090. The instruction in this case accurately recited the governing law. Kerr's claim that the court's failure to instruct the jury on the effect of a deadlock is without merit.

D. Denial of Kerr's Requested Jury Instruction on the Future Dangerousness Special Issue Kerr's habeas petition argued that the trial court improperly rejected Kerr's requested jury charge on the burden of proof for the future dangerousness special issue in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. However, Kerr has not identified where in the record he requested a special instruction on this issue nor an instance where the court rejected it. He also did not argue on direct appeal or when seeking state habeas relief that any such instruction was refused. Habeas relief is precluded where the applicant has not exhausted his state court remedies. See 28 U.S.C. § 2254(b). Kerr's claim is therefore unexhausted and procedurally barred.

E. The Burden of Proof on the Future Dangerousness Special Issue

Kerr further asserts that the use of the word “probability” in the future dangerousness special issue impermissibly lowers the State's burden of proof. As previously discussed, the State must prove future dangerousness beyond a reasonable doubt. The word “probability,” Kerr claims, is unconstitutionally vague.

Kerr cites no authority supporting his theory that reasonable jurists could disagree that the wording of the special issue lowers the burden of proof. A claim not adequately briefed is deemed abandoned. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Moreover, we have previously refused to entertain an identical argument, because its application would violate the anti-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 316, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Rowell, 398 F.3d at 377-78. Pursuant to Teague, Kerr may not obtain habeas relief based on rules of constitutional law not yet announced at the time his conviction became final. Teague, 489 U.S. at 310, 109 S.Ct. 1060. Granting relief here would require retroactive application of a new rule of constitutional law on federal habeas review. Because no court has previously found the wording of Texas's future dangerousness special issue to be unconstitutionally vague, Kerr is not entitled to relief.

F. The State's Use of Pancuronium Bromide in its Execution Process

In his final argument, Kerr insists that Texas's use of pancuronium bromide in the lethal injection process violates the Eighth Amendment prohibition against cruel and unusual punishment. This claim is foreclosed by the Supreme Court's decision in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), in which the Court upheld the constitutionality of using pancuronium bromide in lethal injections. Kerr's argument is thus without merit.