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Texas Department of Criminal Justice - Executed Offenders (Gerald Lee Mitchell)

Texas Attorney General Media Advisory

Thursday, October 18, 2001 - MEDIA ADVISORY - Gerald Lee Mitchell to be Executed.

AUSTIN - Texas Attorney General John Cornyn offers the following information on Gerald Lee Mitchell, who is scheduled to be executed after 6 p.m. on Monday, October 22, 2001.

On April 11, 1986, Mitchell was sentenced for the capital murder of Charles Angelo Marino, which occurred in Houston, Texas, on June 4, 1985. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

On June 4, 1985, Gerald Lee Mitchell abducted and shot Charles Angelo Marino and his 15-year-old brother-in-law, Kenneth Fleming, killing Marino.

Marino and Fleming drove to Lincoln City Park in Houston to purchase marijuana. Mitchell and another man approached Marino's car, a Trans-AM, and offered to sell them marijuana. Mitchell and the other man got into Marino's car and directed him to drive to a house. Mitchell left the car to get a shotgun, which he hid in his warmup pants. When Mitchell returned, the men drove to a dead-end street where Mitchell pulled out the shotgun, demanded the car keys, and tried to force Marino and Fleming into the trunk. When they refused, Mitchell made them walk to a vacant house. After getting the car keys from Marino, Mitchell directed the men into the vacant house, taking Marino's wallet as they walked. Mitchell pumped the shotgun, stating, "You don't believe I'll shoot you, man?" He then kicked in the door and all went inside.

Once inside the vacant building, the second man, who had not been an active participant in the abduction, told Mitchell to take Marino's and Fleming's clothing and leave them there. Mitchell whispered to him to get some rope, at which point the second man left and did not return. Mitchell forced Marino and Fleming to sit on the floor and said, "Raise your hands white boy, you don't want to die with your hands down." Mitchell then shot Marino in the chest. Fleming rolled into a ball and Mitchell then shot him. Fleming heard the gun pump before being shot, and Mitchell stating, "You in the white shirt, I don't think you're dead, white boy," referring to Marino. Marino died from a shotgun wound to the chest. Fleming, who was wounded in the chest, hip and arm, survived by feigning death.

Donald Newsome was walking in the vicinity of the vacant house, heard shots, and saw Mitchell come out of the back of the house with a shotgun over his shoulder. When Mitchell saw Newsome, he was laughing and said, "You don't have to be scared of me, I'm just shooting at some birds." Mitchell then put the gun in the backseat of a "tan or goldish Trans-Am" and drove off.

Mitchell was later arrested in Corpus Christi in possession of Marino's car. Mitchell was transported back to Houston, where he told Sergeant Parish of the Houston Police Department something like, "I want to get if off my chest, I shot the two white boys." Mitchell gave a written confession admitting the shootings, but claiming they were accidental.

PROCEDURAL HISTORY

Mitchell is confined pursuant to a judgment and sentence of the 338th Judicial District Court of Harris County, Texas, Cause No. 426,583, styled The State of Texas vs. Gerald Lee Mitchell. Mitchell was indicted on June 8, 1985, for the capital offense of the intentional murder of Charles Angelo Marino while in the course of committing and attempting to commit robbery of Marino on or about June 4, 1985. The case against Mitchell was heard by a jury, which found him guilty of capital murder on April 7, 1986. Following a separate punishment hearing, the jury affirmatively answered the two special issues submitted pursuant to former Tex. Code Crim. Proc. Ann. art. 37.071 § 2 (West 1985). In accordance with Texas law, the trial court on April 11, 1986, sentenced Mitchell to death.

Mitchell's conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals. The Court of Criminal Appeals affirmed Mitchell's conviction and sentence on January 27, 1993. Mitchell v. State, No. 69,631 (Tex. Crim. App. Jan. 27, 1993) (unpublished). Mitchell next filed a petition for a writ of certiorari, which was denied by the United States Supreme Court on October 4, 1993.

Mitchell filed an application for writ of habeas corpus under Article 11.071 of the Texas Code of Criminal Procedure in state court on September 19, 1994. Mitchell then filed an amended application on January 19, 1995, and a second amended application on March 4, 1997. The court entered findings of fact and conclusions of law recommending that relief be denied on February 18, 1998. Ex parte Mitchell, No. 426,583-A (338th Judicial District Court of Harris County, Texas, Feb. 18, 1998). The Court of Criminal Appeals denied relief based on its own review of the record and the trial court's findings and conclusions on September 16, 1998. Ex parte Mitchell, No. 37,044-01 (Tex. Crim. App. Sept. 16, 1998). Mitchell filed a subsequent application in the trial court for writ of habeas corpus under Article 11.071 on September 23, 1998. The Court of Criminal Appeals ruled that the application failed to satisfy the pleading requirement imposed by Article 11.071 § 5, and dismissed the application as an abuse of the writ on December 16, 1998. Ex parte Mitchell, No. 37,044-02 (Tex. Crim. App. Dec. 16, 1998).

On September 14, 1999, Mitchell filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the District Court for the Southern District of Texas, Houston Division. That petition, and a certificate of appealability, were denied on September 7, 2000. Mitchell sought a certificate of appealability from the United States Court of Appeals for the Fifth Circuit, which was denied on March 12, 2001. Mitchell then sought a certificate of appealability for the United States Supreme Court, which was denied on April 16, 2001.

On September 12, 2001 Mitchell filed another subsequent application for writ of habeas corpus in state court. That application was denied by the Court of Criminal Appeals on October 10, 2001.

PRIOR CRIMINAL HISTORY

During the punishment phase of Mitchell's trial, the State introduced evidence that Mitchell had committed another murder only a few hours before he killed Marino. Mitchell admitted to police that he approached Hector Mungia and demanded a necklace that he was wearing. Mitchell killed Mungia with a shotgun blast when he refused to comply. Mitchell then went to a friend's house and went to sleep.

The State also introduced evidence that Mitchell committed a burglary a few days after killing Moreno and Mungia. Other punishment phase evidence included:

An armed robbery of a savings and loan in January 1985; Testimony that, while in Harris County jail before trial, Mitchell was often violent with other inmates and threatened them with assault or rape; An attempted robbery of a Baskin Robbins in 1983; Theft of a purse in 1983; Testimony that Mitchell carried a .357 pistol to school and told a classmate that he was going to shoot someone and; Testimony that Mitchell had a reputation at school for not being peaceful and law-abiding; that he threatened instructors and other students, and got in fights; and that he had been placed in various alternative school settings until eventually being expelled.

Texas Execution Information Center by David Carson.

Gerald Mitchell, 33, was executed by lethal injection on 22 October in Huntsville, Texas for the robbery and murder of a man who tried to buy marijuana from him.

In June 1985, Charles Marino, 20, and his brother-in-law, Kenneth Fleming, 15, went to a Houston park to buy marijuana. They met Mitchell, then 17, who offered to sell to them. Mitchell and an unidentified accomplice got in Marino's car. Mitchell then pulled a sawed-off 12-gauge shotgun on the men and forced them to drive to a vacant house. After Mitchell took $25 and Marino's car keys, the accomplice told Mitchell to leave them there. When Mitchell asked the accomplice to get some rope, the accomplice left and did not return. Mitchell then forced Marino and Fleming to sit on the floor. He shot Marino in the chest from a distance of ten feet. Fleming rolled into a ball and then Mitchell shot him. Marino was killed, but Fleming survived.

Donald Newsome was walking in the vicinity of the vacant house, heard shots, and saw Mitchell coming out of the back of the house with a shotgun over his shoulders. Mitchell told him he was "just shooting some birds," and drove off in Marino's 1980 Pontiac TransAm.

The same day he killed Marino, Mitchell shot and killed another man, Hector Manguia, 18, when he refused to give Mitchell a necklace he demanded.

Mitchell was arrested in Corpus Christi seven days later, driving Marino's car. He gave police a written confession where he admitted shooting Marino and Fleming, but he claimed it was an accident.

In April 1986, a jury convicted Mitchell of the capital murder of Charles Marino and sentenced him to death. All of his appeals in state and federal courts were denied. Mitchell was also convicted of attempted capital murder in the Fleming shooting and given a 60-year sentence. He was also given a 60-year sentence for the murder of Hector Manguia.

As a juvenile, Mitchell had been arrested for robbery, burglary and taking a pistol to school, and he had served time in a youth detention center. He also supposedly fathered seven children with six women. Since the murders, Mitchell's father has been shot to death, his brother has gone to federal prison for bank robbery, and his mother has been put on probation for drug charges.

On death row, Mitchell expressed remorse about the murders and the direction he took in life. "I was young, I didn't care about living," he said. "I was full of hate, full of rage. I really can't explain why. I was attracted to the wild side, the street life where you're trying to make a name for yourself." However, he believed that at the age of 33, he was no longer the same person who murdered two men. In a letter to the Texas Board of Pardons and Paroles, Mitchell wrote, "I have come so very long a way since the year of that mentally disturbed and unsettled 17-year-young person. I have truly matured."

At his execution, Mitchell asked Charles Marino's family for forgiveness, saying "I am sorry for the life I took from you. I ask God for forgiveness and I ask you for the same. I know it may be hard, but I'm sorry for what I did." He also thanked his family for their support and confessed his faith in Jesus. His last words were, "It's alright. I'm going to a better place." He was pronounced dead at 6:25 p.m.

ProDeathPenalty.Com

Gerald Mitchell was sentenced to death for the 1985 murder of Charles Marino. Charles and his brother-in-law met Mitchell in a Houston neighborhood park and Mitchell had offered to sell the pair some marijuana, but instead pulled out a sawed-off shotgun and forced them to drive to a vacant house. He robbed them of cash and their car keys, then shot them both. Charles died from his wounds but his brother-in-law survived being shot in the hip. Mitchell fled to Corpus Christi where he was arrested a week later. Mitchell was also convicted of the murder of Hector Manguia who was killed on the same day, after refusing to give Mitchell a necklace he demanded.

New Hampshire Coalition Against The Death Penalty

Monday October 22 8:17 PM ET - HUNTSVILLE, Texas (AP) - A man who spent nearly half of his life on death row was executed by injection Monday night for a murder he committed at the age of 17. Before he was put to death, Gerald Mitchell apologized to the mother of his victim.

``I am sorry for the pain. I am sorry for the life I took from you. I ask God for forgiveness and I ask you for the same,'' the 33-year-old convicted killer said, looking at Diane Marino, whose son Charles was killed by Mitchell. He then turned to his family and friends, advising them to be strong. His sister, Marsha, sobbed and slid to her knees on the floor of the witness area, By the time he was arrested for shooting three people in 1985, killing two of them, Mitchell had a history of robbery and theft and had been expelled from an alternative school.

Mitchell's attorneys, some mental health groups and death penalty opponents had contended his age at the time of the crime should have kept him from the Texas death chamber. ``Execution should not be the consequence of juvenile crime, no matter how horrendous,'' said Michael Faenza, president and chief executive officer of the Virginia-based National Mental Health Association. Mitchell's lawyers had asked the Supreme Court to block his execution, arguing that the penalty would violate international law. The high court on Monday turned down the request to delay the execution.

``It is impossible to ignore this widespread recognition by applicable international bodies and officials,'' his lawyers wrote in their petition to the high court. Congress, however, never has ratified provisions in treaties that would bar capital punishment for those convicted of crimes when they were less than 18. But in asking for a review of the case by the high court, Mitchell's lawyers contended customary international law is law in the United States and that a ``clear international consensus'' has developed against execution of people under the age of 18 at the time of their offense.

The Supreme Court has ruled that a defendant's rights were not violated when the death sentence was imposed on a murder convict who was at least 16 at the time of the offense. And Texas law allows the death sentence to be imposed on those convicted of capital murder at age 17. Mitchell was condemned for killing Marino, 20, in June 1985. Marino was fatally shot after he and his brother-in-law, Kenneth Fleming, tried to buy $1 worth of marijuana from Mitchell, court records show. That same day, Mitchell shot and killed Hector Munguia, 18, while trying to rob him. Mitchell had received two 60-year sentences for the Munguia and Fleming shootings.

This was the second capital punishment case involving a teen-ager in recent months in Texas. But Mitchell's case has failed to attract the global attention given in August to fellow inmate Napoleon Beazley, who was spared hours before he was to have been put to death for killing the father of a federal appeals court judge when he was 17. ``I think everyone's attention has been drawn to the terrorist attack,'' said David Atwood of the Texas Coalition to Abolish the Death Penalty. ``It's sometimes difficult to focus your attention on these local issues.''

National Coalition to Abolish the Death Penalty

“You can’t teach borderline intellectual functioning...but you can treat drug abuse,” testified Dr. Priscilla Ray during the sentencing phase of Gerald Mitchell’s trial. It was her conclusion that Gerald’s heavy drug use combined with a below average reasoning capacity greatly influenced his judgement and self-control. Also considered was the coincidence of Gerald’s past criminal activity and drug use: theft and cocaine at age fourteen, possession of a weapon and amp- a marijuana cigarette lined with PCP- at age fifteen. By his own admission, Gerald felt the need to prove himself on the street and keep up a tough exterior. Inevitably, this led to his experimentation and abuse of drugs.

More circumstances of Gerald’s life were brought to light during trial by his legal counsel. First and foremost, Gerald was a juvenile offender- only 17 years old when he robbed and murdered Charles Marino. Viola Mitchell, Gerald’s mother, testified at trial that she believed his drug use began at the same time she was battling cancer and her husband was unemployed, both of which contributed to the family’s poverty. School life wasn’t much help either: school counselors testified to Gerald’s inability to function in a normal school environment. He became belligerent and argumentative- erratic mood changes that were attributed to his emerging drug abuse. The picture that develops out of this scenario is all too familiar with juvenile offenders: neglect, drug use, and violence. Gerald was caught up in a cycle that takes over the lives of too many children who grow up in poverty.

In spite of declining support at home and a broad international consensus against it, Texas continues to execute juvenile offenders. The Houston chronicle has reported that only a third of Texans support these executions, and banning it has become a norm of international law, much like genocide or slavery, whereby all nations are required to obey. And while Texas does require that the execution of juveniles be imposed only on those deemed continuing threats to society, Gerald Mitchell does not fit this role. It had been proven during the sentencing phase of his trial, that without the stimulation of illegal drugs, Gerald was a peaceful and nonviolent member of society. Nevertheless, the jury was not allowed to use these considerations during the sentencing phase. On appeals, Gerald’s defense attorneys’ have continued to push for recognition of his juvenile offender status and his impaired reasoning ability. These factors, they contend, make Gerald less an unrepentant killer than a young man caught up in the violence and hopelessness of drug abuse and poverty.

Let the state of Texas know how they failed this young man by calling Governor Perry’s office to request clemency for Gerald Mitchell. Otherwise, on October 22, Gerald will just be another person in a long line to fall through the cracks of the Texas criminal justice system