Through the Window (25 page)

“Yes.”

“Then you talked about motivation. Are you telling us that Tommy Lynn Sells is not going to have any type of conflict in prison?”

“I am certainly not,” Doctor Miers replied. “All I’m telling you is that the range and nature of that conflict will be—and potential targets coming out of that will be— seriously circumscribed.”

“If he’s in the general population, there is not a potential for conflict?”

“Yes, there is, but . . .”

Hernandez interrupted. “In fact, for him it is probably pretty high?”

“Perhaps.”

“Because of the nature of the offense.”

“Oh yeah. Oh yeah.”

“Then you talk about intent. The fact of the matter is, if somebody wants to stab somebody or slash somebody or kill somebody in the penitentiary, if they are intent on doing it, they are going to do it.”

“If they really make up their mind, they are going to do it unless restrained.”

“Now, do prisoners ever escape from the penitentiary?” From the look on Hernandez’s face, it was obvious he’d looked forward to asking this question. He eagerly waited for the answer he knew he would get.

“Occasionally.”

“In fact, they even escape from death row.”

“Yes.”

THE State next called Royce Smithey, chief investigator for the Special Prison Unit. His job responsibility was the investigation and prosecution of felony offenses that occur inside the prison system.

District Attorney Thomas F. Lee questioned him about the likeliness of violence in prisons, then asked him, “So if, in other words, if an individual goes into prison and his mind is set on doing violent acts, there is no way you can stop that?”

“No, sir,” he answered, “there is no way.”

VICTOR Garcia stepped forward for cross-examination. “Mr. Smithey, how many inmates does the Texas prison system hold?”

“Do they hold now?”

“Yes.”

“Approximately one hundred fifty thousand.”

“So you are telling this jury that you handle one hundred fifty thousand complaints every year?”

“No, sir.” His answer snapped back like a sneer.

“You have led this jury to believe that in the prison system, [ . . . ] your unit is involved on a daily basis because
every inmate in that prison is violent and every inmate in that prison system does some sort of violent act, every inmate in that prison system has a knife . . .”

Garcia was interrupted by an objection from District Attorney Lee. Once it was overruled, the defense continued, “Is that what you are telling this jury?”

“No, sir. No, sir.”

“The last question Mr. Lee asked you, if a person, if an inmate has an intense desire to commit an act, he can do it.”

“Yes, sir,” Smithey agreed.

“If an inmate does not have an intent to do the act, then he won’t.”

“Correct.”

“And the majority of inmates that are in the prison system don’t do violent acts.”

“That’s correct.”

“As a matter of fact,” Garcia continued, “there is a very small percentage of the hundred and fifty thousand that actually do commit criminal acts of violence?”

“Yes, sir, that’s correct.”

“Sometimes it is the same inmate that does multiple ones.”

“That’s correct.”

“Are you also telling us that the prison system that you said is not working . . .”

Smithey cut him off. “I don’t believe I said it wasn’t working. I said I believe it works probably better than any other system in the United States, maybe in the world.”

“Okay. I believe your last answer to his question was that the current prison system is not working?”

“I don’t believe I answered that question. No, sir. I don’t believe that question was asked. I think the last question was asked, ‘If a person wants to be violent they can be violent’ and my response was, ‘Yes, they can.’ “

“No, let me ask it again, then. You were talking about a prison system that is not very effective [ . . . ] keeping acts of violence from occurring within the prison system.”

“Well, first part of your question, no, I’m not talking about a system that doesn’t work. The system does work. It works as well as humanly possible. The Texas prison system is by far the best system in the United States when it comes to violence. [ . . . ] The second part of your question is, basically, if a person wants to be violent, they can be violent, and there is nothing that this prison system, or any other prison system in the United States, can do under the way that they are allowed to operate. There are things that you can do to guarantee a person won’t be violent, but some of those are illegal, and other ways—go ahead.” Smithey paused, concerned that he was about to step on forbidden ground. He looked over to the district attorney, then to the judge and back to the defense attorney. “You probably—You want me to go ahead and answer?”

“Go ahead and answer,” Garcia responded.

“If you guarantee a person won’t be violent, you put them on death row and execute them, and I guarantee they won’t be violent after that.”

HERB Betz had one more role to play in this phase of the trial. He had been asked to read a statement written by Krystal’s father, Mark. Her father could not be in the courtroom because he was hundreds of miles away, serving time in jail on a marijuana charge.

Herb thought he was ready to read this statement. He’d been watching Sells throughout the trial. He saw him writing, drawing, jiggling his leg, and always with that smirky grin that never seemed to leave his face. That grin filled Herb with righteous indignation—enough, he thought, to read this statement without an emotional display.

“This is, by far, the most difficult statement I have ever given, but it is the most urgent and heartfelt.” As Herb read on, he felt the lump building in his throat.

“Though I choose to follow what Jesus Christ would do, and that is to forgive you, Tommy Lynn Sells, this does not change the fact that we must reap what we sow. The depth of the losses you have brought into our lives with
your own hands cannot and will not be accepted or tolerated. The senseless brutal sexual assault and murder of the little girl, Kaylene Harris, and the attempted murder of my daughter, Krystal Surles, is nothing short of evil.” Herb blinked and swallowed hard, taking a sip of water before he continued.

“Taking lives away from families to satisfy your own lust is a disgrace to mankind, America and the State of Texas, not to mention God. Maybe the court and you, Tommy Lynn Sells, will never know how much Krystal’s and our lives have changed, i.e., the memories of Krystal’s friend dying at your hands, the nightmares and physical scars that may never heal. Yes, your run of terror has changed lives forever.

“As a father and a man who knows our judicial system, first-hand, I am asking this court and the ones who represent these two little girls, their families and all of us who will never tolerate such acts of violence, that you, Tommy Sells, be given the death penalty. And that from this time forth, no one else will ever suffer at your hands again. May God have mercy on your soul. Mark Surles.”

Then Herb read the note at the bottom that Mark had addressed to his daughter. Before he opened his mouth, the tears began to flow. “To you, Krystal, you are the most precious, honest, loving, brave and toughest little girl in the world. The Lord, our Lord, has a special plan for you. I am also the proudest father ever. I love you, baby, your Dad.”

A shaken Herb Betz took his seat as he relived the pain and wonder of the first day he met Krystal Surles.

THE defense called Dr. Wendell Lee Dickerson, a psychologist who once worked in a prison system and now works there on an occasional contract basis. Before the trial, Dr. Dickerson had administered an electroencephalogram or EEG, a test that measures brain waves.

Garcia asked, “What did you find after you ran your EEG?”

“[ . . . ] We did find evidence that there are a fairly large number of abnormalities in his scan.”

“What do those abnormalities tell you about Tommy Lynn Sells?”

“Well, that there are abnormalities. They [ . . . ] can further tell you something about what the nature of those abnormalities are. He has a fairly high frequency of what are called phase and symmetry problems in his EEG. There [ . . . ] is some evidence that the communication between the front part of his activity in his head and the rear part of the activity don’t work very well together. [ . . . ] This tells you something about his capacity to regulate himself and to inhibit and guide his own conduct.”

Dr. Dickerson discussed the high fever Sells and his twin sister experienced that resulted in the girl’s death, his “very long and very bad substance abuse history” and the pedophile who had abused him.

Garcia knew his client’s only hope for life rested in this man’s hands. He continued his questioning. “Now, the information that you have now put together, of all the testing you have done, did that lead you to be able to put some sort of label on what you believe [are] the problems that Tommy Lynn Sells has now?”

“Yes, sir.”

“And what would that be?”

“Well, my diagnostic preference, Mr. Garcia, is, he’s a borderline personality disorder with schizoid, avoidant and anti-social features, probable brain damage.” People with borderline personality disorder can maintain a warm, friendly and competent facade until their social defenses break down in stressful situations. But, essentially, they are unstable individuals. Moods can shift from depression to elation to anger in minutes. Their self-image jumps from elevated to devalued. Relationships with others are stormy— one day a person is an admired friend, the next a despised enemy. They are prone to demonstrate self-damaging behavior such as burning or cutting themselves or even attempting suicide. Treatment of this disorder includes
individual psychotherapy and group therapy as well as the use of pharmaceuticals—anti-depressants, anti-psychotics and mood stabilizers. Many improve with proper psychiatric care and are able to lead productive lives.

When Garcia pointed out that Dr. Miers had testified that Sells had anti-social personality disorder, Dr. Dicker-son said, “I think, Mr. Garcia, that’s a fairly common mistake that is made at the courthouse. We encounter individuals all the time with criminal history of some length or another, and the first thing that pops into everybody’s mind is, ‘We’re dealing with an anti-social personality disorder.’ “

Now, Garcia asked an important question for the defense. “If Tommy Lynn Sells is removed from the opportunity, Tommy Lynn Sells is medicated, he would not carry out some of these disorders that you have found?” Then he waited for a response that would force the jurors to answer “yes” to special issue question number one, regarding the likelihood of continued acts of violence.

“I think, you know, if you remove him and medicate him, then you have changed the risk factors. Medication serves to raise the barrier. It serves to raise his capacity to inhibit these things. You are not going to make some of the stuff that is buried in him go away, but it [ . . . ] can improve his capacity for self-management, and I might say that the longer he stays drug-free, the better chance he’s got of making some improvement. Street drug–free.”

Wanting to embed this assessment in the minds of every juror, Garcia touched on the issue again. “You yourself have worked within the prison system, correct?”

“Yes.”

“You have seen how inmates are controlled?”

“Yes.”

“And you feel that if Tommy Lynn Sells was in that controlled environment in a penitentiary system, that that would, in your opinion, eliminate the risk of Tommy Lynn Sells committing acts of violence in the future?”

“Mr. Garcia, I have a great deal of confidence in our
penitentiary system. I think they can handle anybody.”

“[ . . . ] Is there a probability that Tommy Lynn Sells would commit criminal acts of violence and be a continuing threat to society, based on the information you have?”

“In or out of the penitentiary?”

“In the penitentiary.”

“Mr. Garcia, I’m not going to split some hairs with you on this one. I think Tommy Lynn Sells is probably going to be much more of a target than he is an instigator of trouble if he is in the general population. They are going to have to protect him.”

ON summation, Fred Hernandez first reviewed the instructions to the jurors. Then he proceeded with his argument. “Brutal, sadistic, cold-blooded crime. There is no other way to describe it. There is absolutely no other way to describe it. I told you it was gruesome, but it is really beyond that. Is this how anybody wants to end up dying? Is this how we want our children to end up dying?

“There are lots of photographs.” He displayed the autopsy photographs one by one as he talked to the jurors. “They are all horrible. Is this where we want our children to end up, on a cold slab as a forensic pathologist looks at the wounds, front and back? And just look at the nature of the wounds all over her little body, from the neck down to her legs.”

He ticked off a capsule summary of the points of evidence the prosecution had presented in the penalty phase. “Dr. Miers went on to talk about the videotapes and how they struck him, because there was such a lack of emotion, and you saw the tapes, and if you want to play them again when you go back to the jury room, take them with you and play them. He was so cavalier about it that it was like going to the grocery store and picking up fruit. That is how the defendant, Tommy Lynn Sells, looked in those two videos, that he showed a total lack of remorse. That goes along with what Dr. Dickerson thought in the MMPI [ . . . ] that he didn’t have any empathy means he doesn’t have
any feelings toward anybody else. He doesn’t care. He could care less.”

Often Hernandez referred back to evidence revealed in the guilt–innocence portion of the trial. He argued, “Now, we have all heard the term, you know, ‘Trouble follows some people around.’ Do you know what? Trouble doesn’t follow Tommy Sells around. He is the trouble. Where he goes, he takes trouble with him.

“And regardless of what you want to call him, whether you want to call him an anti-social person or a borderline personality disorder person, Dr. Dickerson said he’s a ‘very alarming person.’ Those were his exact words, ‘very alarming person.’ That’s a nice way for saying he’s a scary guy. That’s what that means.”