Eric Nenno and Texas Clemency

Even in Texas the death penalty is supposed to be reserved for the worst of the worst.

One of the unique aspects of Texas criminal law is a reliance on predictions of future behavior in determining whether or not a person is sentenced to death.  In order for any person to receive a death sentence, all 12 jurors must agree that the individual will represent a continuing threat; a future danger.  Some have likened it to a ticking time bomb, bound to explode.

That charge to the jury, “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” is written into the Texas Criminal Code.

Keep in mind that means being a continuing threat in a prison setting, one of the most secure, locked down environments on the planet.  It means being a danger to cause harm not to the general public, but to other inmates, prison employees and guards.

Eric Nenno assaulted and killed a child in 1995.  When he was convicted in Harris County in 1996, all 12 jurors voted that he would be a future danger, and Nenno was sentenced to death.  He faces a scheduled execution tonight in Huntsville.

But what if that prediction was wrong?

During his pre-trial incarceration in the Harris County jail, Nenno was not deemed to be a danger, and was assigned to tasks assisting guards and others. 

In the 160 months that Eric Nenno has been on Texas death row he has not received a single disciplinary infraction.  He has not been a continuing threat to other inmates or guards.  He has expressed deep remorse for the crime he committed and the void that it has left in the family of his victim.  On death row, Eric Nenno has worked to help others and to resolve conflicts.  He has been respectful to other inmates and his guards. 

Eric Nenno has shown by his actions over the past 12 years that he has not been a continuing threat to those around him.  How does our state’s criminal justice system take that fact into account?

The courts have no judicial remedy for a prediction that turned out to be wrong.  Nor does the Texas Department of Criminal Justice have an administrative process to remove an inmate from death row by virtue of his conduct.  Eric Nenno’s only option was executive clemency.

The Texas Board of Pardons and Paroles is the one body with the authority to recommend a commutation of a death sentence to life in prison.  Governor Rick Perry must then approve such a recommendation.

Executive clemency in Texas has been criticized by many criminal justice watchers as failing to live up to its historic responsibility as a failsafe.  The facts of Eric Nenno’s case called out for serious review by the Board.  He has proven on a daily basis over the past 160 months that he has not been a continuing threat.  He has demonstrated that he is not the worst of the worst.  But the Board of Pardons and Paroles rejected Nenno's clemency petition, as noted in this earlier post.

The prediction answered in 1996 got it wrong.  It seems that the Texas Board of Pardons and Paroles was not interested in revisiting the question or how to set it right.

This reliance on predictions of future behavior was the subject of Texas Defender Service's, "Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness."  It was published in 2004.

In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.

Comments

[Calvin Wilhelm]

I served on the jury for the Eric Nenno trial as the jury foreman. In this case, the issue of guilt was never in doubt and therefore the deliberations during the guilt phase of the trial were relatively quick.

However, even though the jury carefully considered most of the evidence during the guilt phase, it is never as comprehensive as one thinks; particularly in a case where guilt is a forgone conclusion.

I remember a particular incident after the guilt phase and before the penalty phase of the trial that troubled me. I was driving down I-45 in Houston one afternoon thinking about the trial. A particular aspect came to mind (which I forget at this point) and I remember thinking ‘geez, we didn’t really explore that very much.’ That experience really bothered me, but the consolation was that I was certain of the defendants’ guilt. I swore that I would do everything possible not to experience that feeling again after the penalty phase.

Because of the heinous nature of the crime and unwavering doubt as to the defendants’ guilt, most in the jury wanted to “vote” immediately after returning to the deliberation room at the conclusion of the penalty phase of the trial. The general feeling was that the defendant was scum and should die for what he did. I also sensed a bit of “lets get it over with” attitude amongst some of the jurors.

First, I objected to the notion of having a “vote” explaining that we were not sent to deliberate and vote specifically on life in prison or death, although that was the net result from the answers to the questions we were to answer. I wasn’t too popular with my fellow jury members because I told them to have their “vote” but to put me down on the opposite side of whatever they decided. My explanation was that I wasn’t going to answer either of the two questions without fully reviewing, discussing and deciding the veracity of the evidence. This position was based somewhat on the uncomfortable feeling I experienced during the guilt phase of the trial which I shared with the jury, and I was determined not to repeat it.

There were two primary issues that went into the jury’s decision to answer ‘yes’ to question 1. The first was whether the jury was absolutely convinced that Nenno was either a predatory or situational pedophile and that he couldn’t help himself. Essentially, if he were ever exposed to young girls again, would he potentially commit the same crime? The jury believed that there was a better than even chance he would commit the same or similar crimes. There was no real argument on this point.

Interestingly enough, the issue you raise in your post was the second primary issue discussed by the jury when deciding the answer to question 1. The jury explored this issue in detail. The definition of “society” was discussed during the deliberation of question 1. I posed to the jury your very point. The debate was framed around the word “society.” The position discussed was that we had just convicted this fellow of capital murder and he would be spending his life in a maximum security prison. Given that his crime was the rape and murder of a child, the argument ensued as to whether Nenno would be a danger to “society” if his society were considered a prison population of adult males. Since there were no 7 year old females were amongst the prison population and his potential danger to society was limited to crimes against children, would it be reasonable to assume that he was no longer a danger to society so long as he remained in prison?

At one point during this very long debate by the jury, I wrote a note to the judge and asked her what the legal definition of “society” was. The response was; “whatever the jury determines it to be.” Since this didn’t clarify the issue much for the jury, our debate continued as to whether Nenno’s danger to society should be considered to be limited to the “society” (prison) where we would expect him to spend the remainder of his life or to society as a whole.

In the end, the jury could not convince itself that Nenno would be exclusively exposed to only the society represented by prison. We felt that given the legal system in America, it was entirely possible that Nenno’s sentence could be commuted to life and later paroled or that his conviction could be overturned by some technicality not having to do with his guilt or innocence. Given this uncertainty and even the remote possibility that Nenno would once again be exposed to society as a whole, the jury decided to answer ‘yes’ to question 1.

As for question 2, there was considerable discussion regarding the testimony of the various psychologists regarding whether he was a predatory or situational pedophile. The defense presented a case that Nenno was situational and offered some testimony on brain scans. The prosecution presented FBI behaviorists who claimed that Nenno was predatory but they never stated unequivocally that he could not be re-habilitated.

My opinion was that Nenno was a situational pedophile and did not prowl the streets looking for little girls to rape and murder. This crime was committed not trough pre-meditation but as a result of circumstances. Further, there was no real evidence that Nenno had a criminal background although the prosecution attempted to enter testimony that he acted inappropriately with a young girl a couple years before the crime. In my mind, it’s a big step from inappropriate touching to rape and murder.

My point to the jury was that this might be considered a mitigating factor that should be considered. It may be possible that combined with the notion that he would be given a life sentence for the crime, he might also be able to be controlled, supervised or rehabilitated if he were ever to be released into general society.

In the end, the jury (myself included) did not feel that the evidence was conclusive enough to attribute the crime to a mental defect or other physiological malady and agreed that the answer to question 2 should be ‘no.’

The whole process took longer than everyone expected it to (approximately 2-3 days of deliberation) and was agonizing from start to finish. I had enormous sympathy for Nicole and her family. This tragedy devastated their family. I also had sympathy for Nenno’s family.

I certainly take no solace in this mans’ death. I am definitely conflicted over the concept of capital punishment. I have deep reservations about state-sponsored murder which is pre-meditated by its very nature. I certainly don’t harbor any sympathy for criminals who kill innocents as well as less than innocent people.

However, the law in Texas is the law. While not completely comfortable with the concept of capital punishment, I recognize that it is the law of the land. I consider myself as a law abiding citizen. Therefore, when the court asked me to deliberate on the questions based on the law, I did so even though it ran counter to my personal feelings.

Is the world better off without Nenno? Probably.

Does it make a big difference one way or the other that he’s been executed by the state? Probably not.

Does capital punishment seem to serve as a deterrent to these most heinous of crimes? Maybe so, and maybe not.

There sure seems to be a lot of murder and other crime with aggravating circumstances being committed in Texas even with the reputation as the most aggressive death penalty state. So, in some sense, it doesn’t appear to be much of a deterrent. On the other hand, its not easy to quantify how many murders or other crimes with aggravating circumstances have been avoided because of the death penalty in the mind of the potential perpetrators.

In the end, until the law is changed, citizens can not be asked to interject their personal opinions into the deliberations required by the law.