Interview with Leon Grizzard
Description:
A lawyer since 1978, Leon Grizzard has spent most of his professional career as a criminal defense attorney in Austin, Travis County. In this interview, Grizzard recalls three capital murder trials. John ("Jackie") Elliott was convicted of the 1986 capital murder of Joyce Munguia and executed in 2003. David Madrigal was convicted in the 1991 capital murder of Department of Public Safety (DPS) Trooper Carlos Ray Warren and sentenced to life imprisonment. Paul Vallejo was acquitted of a 1990 capital murder charge in the killing of cab driver Eleazar Hinojosa, after Austin Police Department investigator Brett McDonald expressed doubts about Vallejo's guilt. Two months after this interview, a jury convicted another man for murders originally attributed to Paul Vallejo. This interview took place in Austin, Travis County, Texas on June 4, 2008.
Transcription:
RAYMOND: I'm here today to interview Leon J. Grizzard, an attorney, a criminal defense attorney here in Austin, Texas. We're at his office, it's June 4, 2008 and behind the camera is Gabriel Solis. So first of all, thank you, Mr. Grizzard.
LEON GRIZZARD: My pleasure.
RAYMOND: For granting us this interview. I wanted to just, so you've reviewed the information about our project.
LEON GRIZZARD: Yes.
RAYMOND: And you know that it is for a public archive but only after you approve it.
LEON GRIZZARD: Yes.
RAYMOND: And any other questions?
LEON GRIZZARD: I don't have any now.
RAYMOND: Any so you have signed the consent for the interview?
LEON GRIZZARD: I have.
RAYMOND: Thank you very much, okay. So, why don't you just do this first, cause I don't want to forget it and I'm so happy we've met before at the Cactus Cafe.
LEON GRIZZARD: Uh huh.
RAYMOND: And then you brought this up to show me?
LEON GRIZZARD: Well you asked about why I was there. My interest in the Butch Hancock band or the Butch Hancock and the Lubbock Mafia and I played bass for the Butch Hancock band both before and while I was in law school. And that poster there to show you with me and Butch on the other hand and Guy Juke, the poster artist and guitarist, and Jerry Parnack that played the drums and I played in a number of bands with them over the years.
RAYMOND: And that's from 1976?
LEON GRIZZARD: That's correct. We played every Wednesday night at the Split Rail.
RAYMOND: Uh huh.
LEON GRIZZARD: On South Lamar.
RAYMOND: Great. Thank you so much. So, why don't you just tell us a little about yourself first? Where you're from.
LEON GRIZZARD: I'm an army brat and so although San Antonio is my family home, that's where my maternal grandparents and my mom is from and that's always been the family home where we've been stationed. I was born in Georgia and we've been stationed in France and Alabama and New Jersey and Texas. So I graduated from high school in San Antonio in 1967, went to junior college in San Antonio for two years, finished up at UT, swung a hammer for four years in Austin and then went back to law school in 1976 and graduated in 1978. I've started out as a general practitioner as people could be back then, but then over a period of time began to gravitate towards and specialize in criminal law, got board certified as a criminal law specialist in 1987, I guess. So that's kind of who I am.
RAYMOND: Okay, and so you're a solo practice today. Can you tell me a little about after 1978 when you got licensed, who did you— did you work for yourself?
LEON GRIZZARD: I just-- Yeah. After going through law school and all that is attendant with that didn't participate in interviews, had a somewhat older lawyer, more experienced lawyer who— who took me in sort of and officed with him for six months. And then after I'd been practicing for about six months, I got a— wouldn't call it a job— I got an officing opportunity with an older lawyer and generally older, more established lawyer, and had a officing arrangement and what you would think of as a law partnership with him for eight years approximately. And then went off on my own, had my own office, up, further up Rio Grande Street from where we are now for I guess about seven years. And I've been in this building here since 2001. I'm in an office with seven other lawyers, six of whom are board certified criminal law specialists, and so it's a very good atmosphere where we have folks that we can staff our cases with and ask for advice and insight and so forth.
03:48
RAYMOND: And who were those older lawyers that you mentioned earlier?
LEON GRIZZARD: Well, Phil Pressey was the older attorney that I would really call the, you know, he was a good ten or twelve years older than I am. And the other gentleman was a fellow by the name of Paul Hanneman that just was— he hasn't been in this area for a long time. He just had some office space and told me he would show me the ropes, introduce me to judges that, that type of thing.
RAYMOND: So let's just go right to 1986, this horrible thing happened. The murders of the Johnson's family— Jackie— No, no, no, no. I am so sorry. Jackie - this was Joyce Mungia was murdered.
LEON GRIZZARD: Yes.
RAYMOND: And Jackie Elliott was charged with this, or John Elliott. Can you tell me what you remember about that or how you got into this?
LEON GRIZZARD: Sure. Another attorney had been appointed a lawyer, by the name of Louis Jones, had been appointed originally as lead counsel on the case. And Ira Davis who in fact is in the building here was appointed as the second chair on it. After some pretty good period of time, and I just don't remember if that would be nine months or a year and a half or something like that, it became facts became known to Mr. Jones that called, it caused him to withdraw for what he, what were some ethical considerations. And I don't know if Mr. Elliott now being deceased, I think the attorney-client relationship continues on and so I can't discuss them. But he asked for permission to get off the case, and that was granted. And Judge John Wisser asked me to step in to take his place on the case. And so there was some stuff that had been done on the case, and I just don't quite recall where along the process it was in terms of pre-trial hearings on evidence and that type of thing. But that's how I came on to it.
RAYMOND: So when you were appointed, you were appointed as lead?
LEON GRIZZARD: Yes, ma'am. And Ira Davis was still working on the case.
LEON GRIZZARD: Yes. Right. Right. And at that point, so I had been practicing for about eight years at that point, and but had really been trying cases only for about three years at that point. It took a while. I was four or five years into practice before I really began to do felony work. And I had done a number of cases by that time, although I can't tell you how many. But there certainly is a limit to how many I could have acquired during those three or four years that I had been trying cases. Ira, I think, had sat second chair on one case at that point and so he didn't feel at all like he could take over as the first chair on the case. And so that's how it came to pass.
RAYMOND: And what kinds— I guess how was the most— What kinds of criminal cases had you done in those three years? Anything of this magnitude?
LEON GRIZZARD: Oh no, certainly not of this magnitude. Although, I'm sure— I know I was trying serious cases. Aggravated robberies and that type of thing and I can't remember specifically what the half a dozen or so cases that I must of tried by then. And it feels I tried more cases, as I think about it, it just could not have been. And so I had been in for some, some heavy cases. I had tried as second chair one murder case that should have been or could have been a capital case had they chose to pursue it that way. And so I've been through some pretty serious cases at that point. But as I'm thinking back on it thinking, and thinking about your coming to do this interview that, My gosh, I'd only been trying cases for three or four years at that point. And that's not an ideal amount of experience for somebody doing a death penalty case.
RAYMOND: Judge Wisser appointed you. Do you remember how the appointment process worked at that point for capital cases, specifically?
LEON GRIZZARD: It was entirely informal. The judges just asked attorneys if they would do it. That was back at a time that we didn't have a formal appointment list like we do now, much less a capital list. And so, I mean, I remember where it was. It was at a political gathering of some sort, and I don't recall what it was. And he approached me and said, 'I have a problem here that Mr. Jones had to withdraw from the case and I'm looking for somebody who can do it, is willing to do and so would you do it?' And so that's how it happened.
RAYMOND: And you had practiced before Judge Wisser quite a bit?
LEON GRIZZARD: Yes. Yes. Back then we only had four courts, I guess, and so we were in all the courts all the time. So, sure.
RAYMOND: So just what do you remember coming into this case, meeting Mr. Elliot?
LEON GRIZZARD: Well, the thing that sticks in my— I don't, it's not necessarily the important things. I remember the first time I met Ira, him coming over to my office and our talking about the case and our, my wondering— first time, Oh my goodness, what have I gotten myself in for here? He talked about his concerns about doing the case, why he couldn't be the lead counsel and so on and so forth. And so, I, it's been so long ago at this point that I don't remember the first time that I met Jackie. I mean I remember meeting him and so forth. He already had a sort of a relationship with Ira at that point and I was the new guy on the case. And so I have some vague recollections but nothing that really struck in my mind. Mr. Elliott always had a certain not reserve, like he was holding back, or something like that, but he wasn't a loud or boisterous person or something like that and our relationship was business-like is what I would say. I mean it just was congenial and workman-like and so forth, but there was nothing, he didn't like I say have an outspoken personality or anything like that.
RAYMOND: What does stick in your mind from that period? I know it's a long time ago—
LEON GRIZZARD: Well, I remember just the feeling inadequate at doing it, both you know just from the amount of experience and from the magnitude of the task. There was not as much material or support for attorneys doing death penalty litigation then. There was a Texas Resource— Texas Legal Resource Center, but it seemed like they were much more focused on post-conviction stuff than being able to give us practical ideas as to what we ought to be doing, what motions we ought to be doing to preserve issues for future stuff. I was very unaware of the writ process and how that might impact the litigation. I was certainly looking for legal errors or potential things to do. But there— it just was not as readily available to the trial lawyers as it seems it is now. So there was a lot of shaking out of stuff in the meantime, the ways you're supposed to do stuff and so forth. And so we felt inadequate, had problems finding the guidance on the death penalty specific stuff. Stuart Kinard was a lawyer here in town that had moved here from Houston and had done a number of death penalty cases. So Ira and I went and talked about the process and what we were looking at in terms of legal issues and helping to get our mind around things. And so that was very helpful to us to do that. But that was a sort of informal help that we had to find rather than the sort of institutionalized help that there is now. I remember during the Christmas holidays before we tried the case, my recollection is we tried it in a January or something like that, and I just remember going through the Christmas holidays going with my wife at the mall and not being able to you know look at stuff in the store, think about anything than what was about to, you know, what was happening, and what I ought to be doing, or really just, Oh my gosh, oh my gosh, oh my gosh was a great deal of it. And so I remember that. You always remember how long and how depressing the case is. This lengthy sort of studied contemplation of whether or not you're going to execute this person, and it takes a long time to do it. We were sort past the era when they first began to resume doing death penalty litigation, it seems like the trials took three months at that point. And we were down to about the one-month or five week process, which I think has kind of stayed about the same, you know, since that period of time. About two weeks or maybe a little more for jury selection, and then it takes a couple of weeks to try the case. But it's the longest four or five weeks of your life. The jury selection is just a grueling process. Doing individual voir dire, and again talking to people about stuff and trying to get people to be truthful about what their feelings are and so forth, and it's a little bit of a sobering experience if you live in the downtown Austin or Central Austin or old Austin and you associate with other people who live down there and then you see where the real cross-section of the community is like. There are quite a number of conservative and rural people in Travis County at the time and so you see what the real slice of life and how few people had problems with the death penalty at that point. We certainly had our Witherspoon issues and challenges and that type of thing. But one of the things that was striking was how strong the support for the death penalty was at the time. And so that's kind of what I remember.
RAYMOND: If I can go back just a little before that. There had been work done on the case by the time you got in were you still investigating, talking to witnesses?
LEON GRIZZARD: I just do not— at this point I don't recall. At this point, you know, I seem to recall going to the jail and talking to some of the state's witnesses who were represented by other lawyers, and I think I remember doing that. But I don't remember. And I remember going with Ira out to the scene of course and walking through it all and so forth. And I remember— this isn't the guilt-innocence stuff but I remember speaking to his mother and speaking to his wife. So I think that a fair amount of it— and then of course I had to sort of start from scratch to a certain extent in terms of looking at the police report and autopsy and the photographs, all that kind of stuff that you have to do even if it's been done by somebody else, of course. And so I remember doing those things. But I just don't, again, I don't remember at what point exactly I came in.
RAYMOND: Do you remember anything about talking to Mr. Elliott's wife or mother or anything?
14:44
LEON GRIZZARD: Well nothing that's— we didn't really know what mitigating evidence was gonna be. This was all so right at the beginning of when we were aware of Penry. And I want to say that Judge Wisser gave us some sort of mitigating evidence charge. But I don't remember what it was. I remember we didn't quite know what evidence we should be putting on. We certainly didn't know to ask for a mitigation expert. If there wasn't— if anything existed like that back then. Because of our investigation, we couldn't put— there were some violent offenses, some violence against his wife, and so forth. So we remembered, we didn't seem like we had an awful lot. We had a momma who loved him. But I don't really recall what else— not a question of recall— I don't know what would have been there if we knew the right stuff to ask or had the right person you know digging in there. I think that we knew enough and to ask about his childhood and so forth. And I don't recall mom saying anything that caused us any great alarm or something. We need to do something about this. But I certainly, I know that people don't— you sometimes have to really dig to find out things. And we didn't know whether to dig or how to dig and so forth. So I just don't know what would have been there had we you know, had we known more and done more.
RAYMOND: Okay. Anything else that you remember about the preparation up until the trial? Or how it affected your life?
LEON GRIZZARD: Well, it takes over your practice and your entire life. I mean you really, if you're not working on it, you're worrying about it, and not— neglecting other tasks, it really does hurt your law practice to do it when you're out of your office for a month trying a case. You don't have any new business at the back end of it because you're not there to return phone calls or take business in. And so it has a bad effect like that and you just have, like every case you try you wind up feeling awfully drained and exhausted at the end. But this is like a magnitude of ten or something like that.
RAYMOND: You talked about picking the jury, or rather, unselecting—
LEON GRIZZARD: Yeah, sure.
RAYMOND: Anything else, I mean, you're surprised—
LEON GRIZZARD: Struck.
RAYMOND: Struck by the support. Anything else you remember about the jury you did get?
LEON GRIZZARD: No. I really do not remember. I remember being— I remember with the, you know, the how do I call it, bizarre, cause that's totally the wrong word, but in order— we were' trying— we wanted to make sure we used up all of our strikes so that we could request other strikes and eventually get denied additional strikes, and then they're identifying an objectionable juror, trying to, you know, get some potential error in the jury selection process in there. And I remember that that led us to striking somebody or saying somebody who was objectionable that I think in fact my gut would have said this is somebody who was a combat infantryman in World War II or something like that, that I thought really, if I'd a— I would like to have had him on there but you have all these things that you need to do to do it the right way. And that is even more so now. There are things that you're— the courts would consider you ineffective if you actually tried to win the guilt-innocence phase of a case. But the— what I've been told is, ‘No, no, no, no, no. You don't even think about it.’ So those choices that you might make as a lawyer as a practical matter or as trial tactics, you're restrained in doing those things. So that's what I remember about it.
RAYMOND: And the trial, what do you remember about the trial?
LEON GRIZZARD: Just that it took forever, forever and ever. When it came to trying the case, you know, the bad thing about trying cases in my mind is preparing for them and picking the jury. And after the jury is picked, then things sort of, you know, I feel much more in my comfort zone in terms of handling the case. And I think we tried the case well. I don't know how well we tried the case. I haven't gone back to look at the transcripts and you know maybe I wish we'd been harder on the “white knight” or something like that, one of the State's witnesses on the case. But I don't know that we could've done much more on the guilt-innocence phase. I just don't have an opinion about that. But it just takes a long time and it's grueling and it's a jury that was, I don't want to say hostile, but you feel like these are all twelve people who say they can assess the death penalty. Or they wouldn't be there. And we had two tough prosecutors we were trying the case against: Brenda Kennedy who is now a judge, and Carla Garcia who is no longer in the DA's office, but still is practicing. Very tough lawyers and hard to try the case against.
20:05
RAYMOND: When you said the “white knight”, do you mean the other people who might—
LEON GRIZZARD: Yes, there was a— yes, there was a young man by the name of Danny Hanson, who ran away— and I'll be vague on the facts cause I'll say 'em wrong— but who ran away when the bad stuff started happening, and then came back and saw more bad things happening. And he was the main state's witness because he had not, as I recall, been implicated in being involved in the sexual assault itself. And so we should maybe have tried harder in terms of getting him involved in the sexual assault, or implying that he was, cause maybe that would discredit his testimony, or perhaps even cast some blame on him, or something like that. But I just don't— You know, I know I am a much better lawyer now, and when I've done the other death penalty case that I did than I was at that time. There's just no question about it. And that's the— that's sort of the problem, or my big beef with the death penalty, I guess, in general, is if you posit good, experienced, hard-working defense lawyers, well that is one thing, but not everybody has the experience and not everybody works hard. And even people that work hard don't necessarily have the skills to do it. And there just is so much room for human inadequacy to strongly affect the outcome of the case. It's just— it's worrisome.
RAYMOND: Your witness? Did you have witnesses?
LEON GRIZZARD: I do not recall that we had any— I mean I know we called his mother at punishment, but I do not think that we had any witnesses that we called at guilt-innocence phase.
RAYMOND: I don't think so. Verdict? How about that punishment phase? I mean that sounds like—
LEON GRIZZARD: Well, they had a— Jackie had a previous conviction for murder, and that was the troublesome thing, of course. And that was at a time when they put on just the fact of the conviction. And we didn't— And I don't even recall what Jackie's— I just don't recall if he was the shooter or what he was at that point. But that was another area where we should have, you know, now it is commonplace to put on the actual evidence itself and we didn't— I don't recall whether or not we just didn't think we could or, or whether it would not be favorable anyway. And so we just argued the state failed to show you anything about the circumstances of that, and he could've has been a party as well as the shooter himself, and they didn't prove that and therefore that's not strong evidence. But we did not have any mitigation type expert testimony or psychological testimony. And here I cannot recall whether Mr. Elliott had been looked at before I got into the case when-- I sort of want to think that perhaps he had been, but I just don't recall. But perhaps he had been but there wasn't anything that was that favorable to us in that or not. And I just don't recall about that. I don't recall.
RAYMOND: The verdict when it came or the sentence when it came—
LEON GRIZZARD: It didn't surprise me, no. I think if you answer the special issues, that's the thing, when it comes down to it, you answer these issues. And it seems like they have the deliberateness, they have the intentionality and they certainly had deliberateness because he left the scene where the rape had taken place and went and got the motorcycle chain that he used to beat her to death, and then came back with it. And so it seemed like they kind of had all of that. And so the question was the future dangerous or not. I think that Dr. Coons was the state's expert on that and the testimony, you know, was the way you look to see what someone will be like in the future is to look in the back. And there was an area where I certainly know some areas to you know be exploring about when people age out on doing violent things and so forth. But we didn't know, you know, that was another area. And we didn't know about that stuff.
RAYMOND: Right. Right. Looking back at this case there was a lot of involvement at some point of the British press because--
LEON GRIZZARD: Oh, that's right, his father or mother, one was a citizen of Britain.
RAYMOND: He was actually born in Britain.
LEON GRIZZARD: That's right. That's right. I recall that. Yeah.
RAYMOND: Did any of that play a part in the trial? Was anybody calling you at that point?
LEON GRIZZARD: No. No. Not at all. Or not that I recall. And I think I would recall something like that.
RAYMOND: So that would be later—
LEON GRIZZARD: Yes, I think it'd be during the post-conviction phase.
RAYMOND: Okay. And so the sentence is assessed. At that point, did you ask to be relieved? Did John Wisser, Judge Wisser take it? How did that work at that time?
25:00
LEON GRIZZARD: I— well, here's what else I guess I will remember before I forget it, one more thing that I remember was that, you know, is everybody that you represent is a human being, no matter how bad a thing they have done. And many people are very, very dangerous, and you would think sort of unredeemable people. But when you get to know them, everybody is a human being, and I'm always struck by that. And I remember when Jackie's mother was on the stand I remember Jackie sitting there at counsel table and was wiping his eye with his tie while was his mom was— that's just one thing that certainly stuck in my mind. In terms of— I don't know that we filed a— I do not recall. But it was certainly the standard practice. If you tried the case, you got off and somebody else was appointed to do the appeal. And we had gotten Terry Kirk, I think it was, involved pre-trial, talking to us about some, about some issues, I think being there during— I don't know what pre-trial— we must have had— I must have conducted some pre-trial hearings because there was a “knock-and-talk” that led to really making the case against Jackie. The Street Crimes Unit or whatever they would've been called then, the word was out on the street as to what happened, and detective Howard Hall showed up at Jackie's apartment and knocked on the door and had his little tape recorder going in his pocket and sort of talked his way in and that led to ultimately Jackie's being arrested. There was a spot of her blood in his ear and on his shoe. And I think he had washed his clothes or something like that. And so that initial entry and whatever was said there was certainly the subject of some pre-trial hearings. And I don't remember what the inquiry was that led to my saying that. I've lost what your question was.
RAYMOND: I don't remember— you started talking about Terry Kirk.
27:00
LEON GRIZZARD: Oh right, right, right, sure. So Terry had been not appointed but was sort of waiting in the wings I think to take the appointment and so he counseled with us some also. And I don't think at that time he would have done tons of you know death penalty stuff. And I don't really know if we failed to preserve anything that the state of the lawyering at the time we ought to have preserved. But we certainly had some help on that. But at any rate, it has always been the practice, you know, to, if you, the trial lawyer on the case, you step out, you step aside and the court appoints someone else. And I guess Terry may not have ultimately wound up doing the appeal for some reason, but anyway he was there during part of it.
RAYMOND: Other than those conversations with Terry Kirk, do you have any, you know, conversations with the appellate lawyers or the post-conviction lawyers?
LEON GRIZZARD: No. No. No. I mean we knew there was gonna be the automatic appeal if there was a death penalty and so forth. And so we had Terry you know to sort of, as being our person to keep us on track we hoped or to tell us what we ought to be doing or thinking about in terms of these larger issues of constitutionality and that type of thing that you know you just don't know in your normal practice.
RAYMOND: So did you follow the case as it went through the appellate— I mean, obviously didn’t work on it. But did you follow it just generally?
LEON GRIZZARD: I— well I followed it in the sense that— sort of yes and no. I followed it sort of automatically in that I read all the slip opinions, all the reported opinions by the Texas Court and the Supreme Court and the Fifth Circuit on a spottier basis than that. And so I was certainly aware of the steps it was taking it, but I didn’t inquire particularly because it just came across my desk in the due course of business.
RAYMOND: So the last contact you had with Jack Elliot, Jackie Elliot was—
LEON GRIZZARD: —After the conviction. You know, before they transferred him off. And I don’t remember if we went to you know say good-bye and wish him luck and tell him what would happen next. But that was the last time. I’ve had no contact with him since then. There was the vignette of his wife— now I can’t recall whether I saw this or whether the jail chaplain told me about it. But his family came to pick up his suit that he had worn and his other effects when he got transferred down to TDC and they brought his son with him. And it must have been the chaplain reported that the son had a toy knife that someone had wrapped tape around the handle for a better grip, and I remember thinking, Man. Again, I’m wondering what was Jackie’s childhood like? Or where did he learn to act the way that he acted?
RAYMOND: Do you remember anything about his mother on the stand?
LEON GRIZZARD: No. Just it was pitiful. She was a, you know, what do you wanna say, a stereotypical mother. But we were almost trying to put her up there like that, you know. And so I don’t recall. It was very— it was wrenching. The mother up there not directly pleading for her son’s life, but by, you know, by implication, and that was her purpose. It was just sad. It was a shame we could not call his wife. But that was just the way it was.
RAYMOND: And the reason you couldn’t call his wife was cause the—
LEON GRIZZARD: Because the violence towards her. And I can’t— I don’t recall if he had been charged with assaulting her or just simply she told us that’s what had happened, that’s what she would say if somebody asked.
RAYMOND: Yeah. Okay. And, the execution, were you aware of when it was coming up?
LEON GRIZZARD: Sure. We were contacted by a lawyer from New Orleans who was working on post-conviction stuff. And so I was aware. I was there in court. Just kind of coincidentally when Judge Wisser set the execution date. And so I actually laid eyes on Jackie. But he didn’t, you know, he was sort of had tunnel vision I think. He didn’t notice us there. I don’t look exactly the same as I did either.
RAYMOND: Any other things that you remember about that experience that you would want to share with people for the historical record about what it was like to try a death penalty case in 1986, or I guess 1987 in Texas, Travis County?
LEON GRIZZARD: Well just— No. The problem I think I have spoken of was that there just simply was not the materials around for defense attorneys. Or we weren’t able to find them to make sure that we were doing everything that we ought to do. The idea— the Penry idea— the mitigation evidence and charges was still in its, you know, in the nascent stages. And so we didn’t know what to do and we tried to do something with that, but we didn’t really know what we were doing. So a lot of those issues have thrashed out. I think that support for the death penalty has eroded somewhat, although I think Texas still is very much in favor of it. But I remember in hearing from the earliest days when capital cases started being tried again, that there were many more excusals for cause— challenges for people who could not participate in the death penalty than the time we had the case. We certainly had a number of challenges based on that, but it was not— I expected more, honestly. And so it’s been a big change. I’ve— I was appointed to do this death penalty case and, as I said a while ago, I’m a much better lawyer than I was at the time. And then I’m— I don’t want to say that in an ideal world lawyers who’ve been trying criminal cases for three or four years ought not be trying you know death penalty cases. And now it’s changed a great deal more. When I tried my second death penalty case in— I guess I don’t know when that would have been, late, boy, I’ll say it wrong. Oh, no, that would have been in the early nineties. There was a great more. I knew much more and the defense bar knew a great deal more about what we were supposed to do at the time. And so there was just a lot more material that was available. I think the public’s opinion is more nuanced now. People understand the issues. They understand the problems that of wrongful conviction much more than they did back in those days. And so I think it’s been a big change.
RAYMOND: Well, I was gonna ask you about that. How’d you get into the second death penalty case? And could you talk a little bit about that?
LEON GRIZZARD: Sure. That was David Madrigal and he is accused— he was convicted of having shot a DPS trooper in the back three times at a rest stop out on Highway 71. David had, and his brother had kidnapped a neighborhood sort of tough who had, I don’t remember, stolen something from David’s brother or something like that. And they took him out and were— they were giving him a talking to out at the rest stop. The officer came upon them and, you know, things seemed suspicious and one thing led to another and David panicked. Or, I guess perhaps the 100% truth will never be known, but shot him in the back three times and fled in his car to San Antonio and shot at a police officer down there. I guess, and I think at that time maybe we did not really have a death penalty list also. I think the judges just asked you to do it. And so Judge Flowers, that I have tried a bunch of cases before, asked me to do that one. And so we knew a lot more about what we were doing. We knew what psychologist that we wanted as our mitigation person. We knew who the state would use, and so we thought we had the right person to counter balance that. And so we just knew a lot more what we doing. There was a lot more materials available and so on and so forth. And so that’s the main thing. I just was much more confident in what we were doing. It still was scary. And picking the jury was still as big a drag as it ever was. But I just felt like we had, you know, for better or worse, we had done better for our client, or had done a good job for our client. And then he wound up getting the death— I mean he wounded up getting life instead of the death penalty. So it worked out.
RAYMOND: For killing a law enforcement, it’s something.
LEON GRIZZARD: Yes. It was very unusual. Right. And it was unique facts: He had been terrorized by an employee at a place where he worked, had trapped him in the storage room and terrorized him with a knife for an hour or so, trying to get money. The guy was strung out on crack. And it was after that, immediately after that that David had— he had purchased a gun and put bottles inside his windows and his doors so people couldn’t get him at night and so forth. And so there was a very direct cause and effect between that incident and the paranoia. We brought that inmate back from prison to testify about it and so forth. And David was an affirmatively otherwise sweet, little guy that would bake for his mother and was a very meek and mild mannered, you know, guy. And so it was not totally inexplicable that the jury would think that this guy might not be a danger. But still it was unusual. Usually, kill a police officer and you’re not gonna get a lot of sympathy. In talking about death penalty, I would be remiss if I didn’t mention the Paul Vallejo case. That is a case that was a death penalty case up until about a matter of weeks before we began jury selection. And that is another one that I just remember being sick to my stomach about trying, going to trial on that case cause it seemed pretty hopeless to us. It just seemed like it was just gonna be awful. And, in fact, it was awful, even though we got an acquittal on the case. But the significant thing there was the lead investigator for the Austin Police Department, Brett McDonald, did not believe that Mr. Vallejo was guilty on the case. And he wrote a memo to that effect that the DA’s office at first did not reveal to us and I don’t know all of the— well, and I could see in that it is not exculpatory evidence because it is just the opinion of the officer and it’s based on other pieces of evidence that were known to us. And so I don’t know if I really think it strictly is mitigating evidence, but it is certainly interesting to know. And when that came out then the State conferred and waived the death penalty. We tried the case a few weeks later and he was acquitted. The guy that apparently may have really committed the murder, based on the fingerprints found at the scene— and I don’t know enough about it, but I know on a mirror in one of the cabs and on a plastic bag in one of the cabs is the finger prints or palm prints of the person who was now about to go to trial for the case. And so if things had fallen out a little bit differently, if that police officer had not put that, had not put his feelings into that memo and it coming out the way it was, then Paul Vallejo could very well be a dead man now. And the real perpetrator, if indeed this person that’s about to go to trial, would be walking around free. And that is to me the biggest scary thing about the death penalty is it is so fraught with human factors. If you can make it 100% clean and you pick your people, I can see the argument for retribution. It might not be the one that I would buy, but you know, it’s a I guess a legitimate urge to punish people. But as long as people are involved in it there’s gonna be the potential for serious things to go wrong, for people to not get a fair shake, for innocent people to get convicted and killed. And the Paul Vallejo case is an example of that to me. He could’ve been a matter of weeks away from getting a death penalty. And if that had happened, the chances of this other stuff coming out or changing or anything are extremely slight.
RAYMOND: That officer who wrote the memo, did you talk to him specifically? Or how did that all come out?
LEON GRIZZARD: I do not recall now and I have heard gossip I guess I would just call it, from members of the DA’s office that is contrary to what— I’m hearing two things from people who purport to know something about it. And so I don’t know what to think about it. I know that Brett McDonald, I think, spent the, you know, maybe it’s an overstatement to say he spent the rest of his career in you know in weights and measures, or something like that. But it sure didn’t do his career one bit of good. And I’m sure he knew that at the time he wrote the memo.
RAYMOND: Good. Well, are there any other things? Do you want to talk about how these cases have effected you or that you would want people to know from your experiences, if they had walked a mile in your shoes, what it would’ve—
LEON GRIZZARD: Well, I just think that you’re never— you need to try to do the best job that you can. Death really is different. And it really is not just like a case that has a big punishment or something like that. But it’s a human being’s life. And I realize I’ve got plenty of inadequacies as a lawyer at the present time that I smart from the knowledge of every day, but and yet I know I can do a good job for my clients. But somebody who is a, who’s only been practicing for five years or eight years or something like that, you can’t possibly know enough. And you need to— it takes studying the law as well as working on the facts, and trial skills and all those kind of things. And it’s just a big responsibility. And I’m not sure who really is up to doing that, or ought to consider themselves up to doing that. It’s too much to do.
RAYMOND: If somebody— are you on the capital punishment list again?
LEON GRIZZARD: I’m not anymore. No. I figured out— and there are other factors. My wife is a prosecutor in the DA’s office and so I got off the appointment list in general about the time she and I started to hang around together. There’s some clients that don’t mind, or recognize that that’s not going to have a big effect on what the assistant DA handling their case is gonna do. But some people do feel uncomfortable about that. Or they can say they feel uncomfortable about it. And so I’m not on it anymore. I am, however, I have been appointed to second chair— Ira Davis, as a matter of fact, on two cases. One has been resolved, and the other is just starting up. And so I, even though I’m not on the appointment list, the judges appoint me from time to time from the bench on things. And so I have some involvement and have tried to keep up my knowledge of the law on that, as I always have read, like I said, try to read all the Court of Criminal Appeals slip opinions and the Supreme Court cases that deal with legal matters. And so I have tried to stay up. We’ll see that the death penalty committee has not met yet or not resolved whether or not they’re gonna seek the death penalty on Ira’s case. So, I don’t know what direction that will take.
RAYMOND: And just for the record, cause not everybody that watches this will know what the ‘committee’ means.
LEON GRIZZARD: The DA’s office has a committee of senior prosecutors who meet to review cases and give advice or recommendations to the elected DA about whether or not to seek the death penalty on the case. Ronnie Earle, the District Attorney, is the one that ultimately makes the call. But the attorneys who have— the prosecutors who have the case give presentations to the committee on the facts, the background of the defendant, and that type of thing. And then the committee meets and makes a recommendation and then Ronnie Earle makes the ultimate call.
RAYMOND: And that’s in Travis County?
LEON GRIZZARD: Yes. Yes.
RAYMOND: Is that fairly unusual? Do you know?
LEON GRIZZARD: I don’t know that I would think that it would be. I would think that most elected DA’s in serious matters, like everyone else, you’re gonna want to hear some input from people you trust about what to do on the case. And because the special nature of these cases I would be surprised if they, if the elected DA simply would read the file himself and make the call without some input from his staff.
RAYMOND: Okay. Good. Anything else you want to share?
LEON GRIZZARD: No, I don’t really think so. Thank you for letting me talk.
RAYMOND: Thank you very much for granting this interview. I really appreciate it.
LEON GRIZZARD: Okay.
RAYMOND: Thank you.
LEON GRIZZARD: My pleasure.
RAYMOND: For granting us this interview. I wanted to just, so you've reviewed the information about our project.
LEON GRIZZARD: Yes.
RAYMOND: And you know that it is for a public archive but only after you approve it.
LEON GRIZZARD: Yes.
RAYMOND: And any other questions?
LEON GRIZZARD: I don't have any now.
RAYMOND: Any so you have signed the consent for the interview?
LEON GRIZZARD: I have.
RAYMOND: Thank you very much, okay. So, why don't you just do this first, cause I don't want to forget it and I'm so happy we've met before at the Cactus Cafe.
LEON GRIZZARD: Uh huh.
RAYMOND: And then you brought this up to show me?
LEON GRIZZARD: Well you asked about why I was there. My interest in the Butch Hancock band or the Butch Hancock and the Lubbock Mafia and I played bass for the Butch Hancock band both before and while I was in law school. And that poster there to show you with me and Butch on the other hand and Guy Juke, the poster artist and guitarist, and Jerry Parnack that played the drums and I played in a number of bands with them over the years.
RAYMOND: And that's from 1976?
LEON GRIZZARD: That's correct. We played every Wednesday night at the Split Rail.
RAYMOND: Uh huh.
LEON GRIZZARD: On South Lamar.
RAYMOND: Great. Thank you so much. So, why don't you just tell us a little about yourself first? Where you're from.
LEON GRIZZARD: I'm an army brat and so although San Antonio is my family home, that's where my maternal grandparents and my mom is from and that's always been the family home where we've been stationed. I was born in Georgia and we've been stationed in France and Alabama and New Jersey and Texas. So I graduated from high school in San Antonio in 1967, went to junior college in San Antonio for two years, finished up at UT, swung a hammer for four years in Austin and then went back to law school in 1976 and graduated in 1978. I've started out as a general practitioner as people could be back then, but then over a period of time began to gravitate towards and specialize in criminal law, got board certified as a criminal law specialist in 1987, I guess. So that's kind of who I am.
RAYMOND: Okay, and so you're a solo practice today. Can you tell me a little about after 1978 when you got licensed, who did you— did you work for yourself?
LEON GRIZZARD: I just-- Yeah. After going through law school and all that is attendant with that didn't participate in interviews, had a somewhat older lawyer, more experienced lawyer who— who took me in sort of and officed with him for six months. And then after I'd been practicing for about six months, I got a— wouldn't call it a job— I got an officing opportunity with an older lawyer and generally older, more established lawyer, and had a officing arrangement and what you would think of as a law partnership with him for eight years approximately. And then went off on my own, had my own office, up, further up Rio Grande Street from where we are now for I guess about seven years. And I've been in this building here since 2001. I'm in an office with seven other lawyers, six of whom are board certified criminal law specialists, and so it's a very good atmosphere where we have folks that we can staff our cases with and ask for advice and insight and so forth.
03:48
RAYMOND: And who were those older lawyers that you mentioned earlier?
LEON GRIZZARD: Well, Phil Pressey was the older attorney that I would really call the, you know, he was a good ten or twelve years older than I am. And the other gentleman was a fellow by the name of Paul Hanneman that just was— he hasn't been in this area for a long time. He just had some office space and told me he would show me the ropes, introduce me to judges that, that type of thing.
RAYMOND: So let's just go right to 1986, this horrible thing happened. The murders of the Johnson's family— Jackie— No, no, no, no. I am so sorry. Jackie - this was Joyce Mungia was murdered.
LEON GRIZZARD: Yes.
RAYMOND: And Jackie Elliott was charged with this, or John Elliott. Can you tell me what you remember about that or how you got into this?
LEON GRIZZARD: Sure. Another attorney had been appointed a lawyer, by the name of Louis Jones, had been appointed originally as lead counsel on the case. And Ira Davis who in fact is in the building here was appointed as the second chair on it. After some pretty good period of time, and I just don't remember if that would be nine months or a year and a half or something like that, it became facts became known to Mr. Jones that called, it caused him to withdraw for what he, what were some ethical considerations. And I don't know if Mr. Elliott now being deceased, I think the attorney-client relationship continues on and so I can't discuss them. But he asked for permission to get off the case, and that was granted. And Judge John Wisser asked me to step in to take his place on the case. And so there was some stuff that had been done on the case, and I just don't quite recall where along the process it was in terms of pre-trial hearings on evidence and that type of thing. But that's how I came on to it.
RAYMOND: So when you were appointed, you were appointed as lead?
LEON GRIZZARD: Yes, ma'am. And Ira Davis was still working on the case.
LEON GRIZZARD: Yes. Right. Right. And at that point, so I had been practicing for about eight years at that point, and but had really been trying cases only for about three years at that point. It took a while. I was four or five years into practice before I really began to do felony work. And I had done a number of cases by that time, although I can't tell you how many. But there certainly is a limit to how many I could have acquired during those three or four years that I had been trying cases. Ira, I think, had sat second chair on one case at that point and so he didn't feel at all like he could take over as the first chair on the case. And so that's how it came to pass.
RAYMOND: And what kinds— I guess how was the most— What kinds of criminal cases had you done in those three years? Anything of this magnitude?
LEON GRIZZARD: Oh no, certainly not of this magnitude. Although, I'm sure— I know I was trying serious cases. Aggravated robberies and that type of thing and I can't remember specifically what the half a dozen or so cases that I must of tried by then. And it feels I tried more cases, as I think about it, it just could not have been. And so I had been in for some, some heavy cases. I had tried as second chair one murder case that should have been or could have been a capital case had they chose to pursue it that way. And so I've been through some pretty serious cases at that point. But as I'm thinking back on it thinking, and thinking about your coming to do this interview that, My gosh, I'd only been trying cases for three or four years at that point. And that's not an ideal amount of experience for somebody doing a death penalty case.
RAYMOND: Judge Wisser appointed you. Do you remember how the appointment process worked at that point for capital cases, specifically?
LEON GRIZZARD: It was entirely informal. The judges just asked attorneys if they would do it. That was back at a time that we didn't have a formal appointment list like we do now, much less a capital list. And so, I mean, I remember where it was. It was at a political gathering of some sort, and I don't recall what it was. And he approached me and said, 'I have a problem here that Mr. Jones had to withdraw from the case and I'm looking for somebody who can do it, is willing to do and so would you do it?' And so that's how it happened.
RAYMOND: And you had practiced before Judge Wisser quite a bit?
LEON GRIZZARD: Yes. Yes. Back then we only had four courts, I guess, and so we were in all the courts all the time. So, sure.
RAYMOND: So just what do you remember coming into this case, meeting Mr. Elliot?
LEON GRIZZARD: Well, the thing that sticks in my— I don't, it's not necessarily the important things. I remember the first time I met Ira, him coming over to my office and our talking about the case and our, my wondering— first time, Oh my goodness, what have I gotten myself in for here? He talked about his concerns about doing the case, why he couldn't be the lead counsel and so on and so forth. And so, I, it's been so long ago at this point that I don't remember the first time that I met Jackie. I mean I remember meeting him and so forth. He already had a sort of a relationship with Ira at that point and I was the new guy on the case. And so I have some vague recollections but nothing that really struck in my mind. Mr. Elliott always had a certain not reserve, like he was holding back, or something like that, but he wasn't a loud or boisterous person or something like that and our relationship was business-like is what I would say. I mean it just was congenial and workman-like and so forth, but there was nothing, he didn't like I say have an outspoken personality or anything like that.
RAYMOND: What does stick in your mind from that period? I know it's a long time ago—
LEON GRIZZARD: Well, I remember just the feeling inadequate at doing it, both you know just from the amount of experience and from the magnitude of the task. There was not as much material or support for attorneys doing death penalty litigation then. There was a Texas Resource— Texas Legal Resource Center, but it seemed like they were much more focused on post-conviction stuff than being able to give us practical ideas as to what we ought to be doing, what motions we ought to be doing to preserve issues for future stuff. I was very unaware of the writ process and how that might impact the litigation. I was certainly looking for legal errors or potential things to do. But there— it just was not as readily available to the trial lawyers as it seems it is now. So there was a lot of shaking out of stuff in the meantime, the ways you're supposed to do stuff and so forth. And so we felt inadequate, had problems finding the guidance on the death penalty specific stuff. Stuart Kinard was a lawyer here in town that had moved here from Houston and had done a number of death penalty cases. So Ira and I went and talked about the process and what we were looking at in terms of legal issues and helping to get our mind around things. And so that was very helpful to us to do that. But that was a sort of informal help that we had to find rather than the sort of institutionalized help that there is now. I remember during the Christmas holidays before we tried the case, my recollection is we tried it in a January or something like that, and I just remember going through the Christmas holidays going with my wife at the mall and not being able to you know look at stuff in the store, think about anything than what was about to, you know, what was happening, and what I ought to be doing, or really just, Oh my gosh, oh my gosh, oh my gosh was a great deal of it. And so I remember that. You always remember how long and how depressing the case is. This lengthy sort of studied contemplation of whether or not you're going to execute this person, and it takes a long time to do it. We were sort past the era when they first began to resume doing death penalty litigation, it seems like the trials took three months at that point. And we were down to about the one-month or five week process, which I think has kind of stayed about the same, you know, since that period of time. About two weeks or maybe a little more for jury selection, and then it takes a couple of weeks to try the case. But it's the longest four or five weeks of your life. The jury selection is just a grueling process. Doing individual voir dire, and again talking to people about stuff and trying to get people to be truthful about what their feelings are and so forth, and it's a little bit of a sobering experience if you live in the downtown Austin or Central Austin or old Austin and you associate with other people who live down there and then you see where the real cross-section of the community is like. There are quite a number of conservative and rural people in Travis County at the time and so you see what the real slice of life and how few people had problems with the death penalty at that point. We certainly had our Witherspoon issues and challenges and that type of thing. But one of the things that was striking was how strong the support for the death penalty was at the time. And so that's kind of what I remember.
RAYMOND: If I can go back just a little before that. There had been work done on the case by the time you got in were you still investigating, talking to witnesses?
LEON GRIZZARD: I just do not— at this point I don't recall. At this point, you know, I seem to recall going to the jail and talking to some of the state's witnesses who were represented by other lawyers, and I think I remember doing that. But I don't remember. And I remember going with Ira out to the scene of course and walking through it all and so forth. And I remember— this isn't the guilt-innocence stuff but I remember speaking to his mother and speaking to his wife. So I think that a fair amount of it— and then of course I had to sort of start from scratch to a certain extent in terms of looking at the police report and autopsy and the photographs, all that kind of stuff that you have to do even if it's been done by somebody else, of course. And so I remember doing those things. But I just don't, again, I don't remember at what point exactly I came in.
RAYMOND: Do you remember anything about talking to Mr. Elliott's wife or mother or anything?
14:44
LEON GRIZZARD: Well nothing that's— we didn't really know what mitigating evidence was gonna be. This was all so right at the beginning of when we were aware of Penry. And I want to say that Judge Wisser gave us some sort of mitigating evidence charge. But I don't remember what it was. I remember we didn't quite know what evidence we should be putting on. We certainly didn't know to ask for a mitigation expert. If there wasn't— if anything existed like that back then. Because of our investigation, we couldn't put— there were some violent offenses, some violence against his wife, and so forth. So we remembered, we didn't seem like we had an awful lot. We had a momma who loved him. But I don't really recall what else— not a question of recall— I don't know what would have been there if we knew the right stuff to ask or had the right person you know digging in there. I think that we knew enough and to ask about his childhood and so forth. And I don't recall mom saying anything that caused us any great alarm or something. We need to do something about this. But I certainly, I know that people don't— you sometimes have to really dig to find out things. And we didn't know whether to dig or how to dig and so forth. So I just don't know what would have been there had we you know, had we known more and done more.
RAYMOND: Okay. Anything else that you remember about the preparation up until the trial? Or how it affected your life?
LEON GRIZZARD: Well, it takes over your practice and your entire life. I mean you really, if you're not working on it, you're worrying about it, and not— neglecting other tasks, it really does hurt your law practice to do it when you're out of your office for a month trying a case. You don't have any new business at the back end of it because you're not there to return phone calls or take business in. And so it has a bad effect like that and you just have, like every case you try you wind up feeling awfully drained and exhausted at the end. But this is like a magnitude of ten or something like that.
RAYMOND: You talked about picking the jury, or rather, unselecting—
LEON GRIZZARD: Yeah, sure.
RAYMOND: Anything else, I mean, you're surprised—
LEON GRIZZARD: Struck.
RAYMOND: Struck by the support. Anything else you remember about the jury you did get?
LEON GRIZZARD: No. I really do not remember. I remember being— I remember with the, you know, the how do I call it, bizarre, cause that's totally the wrong word, but in order— we were' trying— we wanted to make sure we used up all of our strikes so that we could request other strikes and eventually get denied additional strikes, and then they're identifying an objectionable juror, trying to, you know, get some potential error in the jury selection process in there. And I remember that that led us to striking somebody or saying somebody who was objectionable that I think in fact my gut would have said this is somebody who was a combat infantryman in World War II or something like that, that I thought really, if I'd a— I would like to have had him on there but you have all these things that you need to do to do it the right way. And that is even more so now. There are things that you're— the courts would consider you ineffective if you actually tried to win the guilt-innocence phase of a case. But the— what I've been told is, ‘No, no, no, no, no. You don't even think about it.’ So those choices that you might make as a lawyer as a practical matter or as trial tactics, you're restrained in doing those things. So that's what I remember about it.
RAYMOND: And the trial, what do you remember about the trial?
LEON GRIZZARD: Just that it took forever, forever and ever. When it came to trying the case, you know, the bad thing about trying cases in my mind is preparing for them and picking the jury. And after the jury is picked, then things sort of, you know, I feel much more in my comfort zone in terms of handling the case. And I think we tried the case well. I don't know how well we tried the case. I haven't gone back to look at the transcripts and you know maybe I wish we'd been harder on the “white knight” or something like that, one of the State's witnesses on the case. But I don't know that we could've done much more on the guilt-innocence phase. I just don't have an opinion about that. But it just takes a long time and it's grueling and it's a jury that was, I don't want to say hostile, but you feel like these are all twelve people who say they can assess the death penalty. Or they wouldn't be there. And we had two tough prosecutors we were trying the case against: Brenda Kennedy who is now a judge, and Carla Garcia who is no longer in the DA's office, but still is practicing. Very tough lawyers and hard to try the case against.
20:05
RAYMOND: When you said the “white knight”, do you mean the other people who might—
LEON GRIZZARD: Yes, there was a— yes, there was a young man by the name of Danny Hanson, who ran away— and I'll be vague on the facts cause I'll say 'em wrong— but who ran away when the bad stuff started happening, and then came back and saw more bad things happening. And he was the main state's witness because he had not, as I recall, been implicated in being involved in the sexual assault itself. And so we should maybe have tried harder in terms of getting him involved in the sexual assault, or implying that he was, cause maybe that would discredit his testimony, or perhaps even cast some blame on him, or something like that. But I just don't— You know, I know I am a much better lawyer now, and when I've done the other death penalty case that I did than I was at that time. There's just no question about it. And that's the— that's sort of the problem, or my big beef with the death penalty, I guess, in general, is if you posit good, experienced, hard-working defense lawyers, well that is one thing, but not everybody has the experience and not everybody works hard. And even people that work hard don't necessarily have the skills to do it. And there just is so much room for human inadequacy to strongly affect the outcome of the case. It's just— it's worrisome.
RAYMOND: Your witness? Did you have witnesses?
LEON GRIZZARD: I do not recall that we had any— I mean I know we called his mother at punishment, but I do not think that we had any witnesses that we called at guilt-innocence phase.
RAYMOND: I don't think so. Verdict? How about that punishment phase? I mean that sounds like—
LEON GRIZZARD: Well, they had a— Jackie had a previous conviction for murder, and that was the troublesome thing, of course. And that was at a time when they put on just the fact of the conviction. And we didn't— And I don't even recall what Jackie's— I just don't recall if he was the shooter or what he was at that point. But that was another area where we should have, you know, now it is commonplace to put on the actual evidence itself and we didn't— I don't recall whether or not we just didn't think we could or, or whether it would not be favorable anyway. And so we just argued the state failed to show you anything about the circumstances of that, and he could've has been a party as well as the shooter himself, and they didn't prove that and therefore that's not strong evidence. But we did not have any mitigation type expert testimony or psychological testimony. And here I cannot recall whether Mr. Elliott had been looked at before I got into the case when-- I sort of want to think that perhaps he had been, but I just don't recall. But perhaps he had been but there wasn't anything that was that favorable to us in that or not. And I just don't recall about that. I don't recall.
RAYMOND: The verdict when it came or the sentence when it came—
LEON GRIZZARD: It didn't surprise me, no. I think if you answer the special issues, that's the thing, when it comes down to it, you answer these issues. And it seems like they have the deliberateness, they have the intentionality and they certainly had deliberateness because he left the scene where the rape had taken place and went and got the motorcycle chain that he used to beat her to death, and then came back with it. And so it seemed like they kind of had all of that. And so the question was the future dangerous or not. I think that Dr. Coons was the state's expert on that and the testimony, you know, was the way you look to see what someone will be like in the future is to look in the back. And there was an area where I certainly know some areas to you know be exploring about when people age out on doing violent things and so forth. But we didn't know, you know, that was another area. And we didn't know about that stuff.
RAYMOND: Right. Right. Looking back at this case there was a lot of involvement at some point of the British press because--
LEON GRIZZARD: Oh, that's right, his father or mother, one was a citizen of Britain.
RAYMOND: He was actually born in Britain.
LEON GRIZZARD: That's right. That's right. I recall that. Yeah.
RAYMOND: Did any of that play a part in the trial? Was anybody calling you at that point?
LEON GRIZZARD: No. No. Not at all. Or not that I recall. And I think I would recall something like that.
RAYMOND: So that would be later—
LEON GRIZZARD: Yes, I think it'd be during the post-conviction phase.
RAYMOND: Okay. And so the sentence is assessed. At that point, did you ask to be relieved? Did John Wisser, Judge Wisser take it? How did that work at that time?
25:00
LEON GRIZZARD: I— well, here's what else I guess I will remember before I forget it, one more thing that I remember was that, you know, is everybody that you represent is a human being, no matter how bad a thing they have done. And many people are very, very dangerous, and you would think sort of unredeemable people. But when you get to know them, everybody is a human being, and I'm always struck by that. And I remember when Jackie's mother was on the stand I remember Jackie sitting there at counsel table and was wiping his eye with his tie while was his mom was— that's just one thing that certainly stuck in my mind. In terms of— I don't know that we filed a— I do not recall. But it was certainly the standard practice. If you tried the case, you got off and somebody else was appointed to do the appeal. And we had gotten Terry Kirk, I think it was, involved pre-trial, talking to us about some, about some issues, I think being there during— I don't know what pre-trial— we must have had— I must have conducted some pre-trial hearings because there was a “knock-and-talk” that led to really making the case against Jackie. The Street Crimes Unit or whatever they would've been called then, the word was out on the street as to what happened, and detective Howard Hall showed up at Jackie's apartment and knocked on the door and had his little tape recorder going in his pocket and sort of talked his way in and that led to ultimately Jackie's being arrested. There was a spot of her blood in his ear and on his shoe. And I think he had washed his clothes or something like that. And so that initial entry and whatever was said there was certainly the subject of some pre-trial hearings. And I don't remember what the inquiry was that led to my saying that. I've lost what your question was.
RAYMOND: I don't remember— you started talking about Terry Kirk.
27:00
LEON GRIZZARD: Oh right, right, right, sure. So Terry had been not appointed but was sort of waiting in the wings I think to take the appointment and so he counseled with us some also. And I don't think at that time he would have done tons of you know death penalty stuff. And I don't really know if we failed to preserve anything that the state of the lawyering at the time we ought to have preserved. But we certainly had some help on that. But at any rate, it has always been the practice, you know, to, if you, the trial lawyer on the case, you step out, you step aside and the court appoints someone else. And I guess Terry may not have ultimately wound up doing the appeal for some reason, but anyway he was there during part of it.
RAYMOND: Other than those conversations with Terry Kirk, do you have any, you know, conversations with the appellate lawyers or the post-conviction lawyers?
LEON GRIZZARD: No. No. No. I mean we knew there was gonna be the automatic appeal if there was a death penalty and so forth. And so we had Terry you know to sort of, as being our person to keep us on track we hoped or to tell us what we ought to be doing or thinking about in terms of these larger issues of constitutionality and that type of thing that you know you just don't know in your normal practice.
RAYMOND: So did you follow the case as it went through the appellate— I mean, obviously didn’t work on it. But did you follow it just generally?
LEON GRIZZARD: I— well I followed it in the sense that— sort of yes and no. I followed it sort of automatically in that I read all the slip opinions, all the reported opinions by the Texas Court and the Supreme Court and the Fifth Circuit on a spottier basis than that. And so I was certainly aware of the steps it was taking it, but I didn’t inquire particularly because it just came across my desk in the due course of business.
RAYMOND: So the last contact you had with Jack Elliot, Jackie Elliot was—
LEON GRIZZARD: —After the conviction. You know, before they transferred him off. And I don’t remember if we went to you know say good-bye and wish him luck and tell him what would happen next. But that was the last time. I’ve had no contact with him since then. There was the vignette of his wife— now I can’t recall whether I saw this or whether the jail chaplain told me about it. But his family came to pick up his suit that he had worn and his other effects when he got transferred down to TDC and they brought his son with him. And it must have been the chaplain reported that the son had a toy knife that someone had wrapped tape around the handle for a better grip, and I remember thinking, Man. Again, I’m wondering what was Jackie’s childhood like? Or where did he learn to act the way that he acted?
RAYMOND: Do you remember anything about his mother on the stand?
LEON GRIZZARD: No. Just it was pitiful. She was a, you know, what do you wanna say, a stereotypical mother. But we were almost trying to put her up there like that, you know. And so I don’t recall. It was very— it was wrenching. The mother up there not directly pleading for her son’s life, but by, you know, by implication, and that was her purpose. It was just sad. It was a shame we could not call his wife. But that was just the way it was.
RAYMOND: And the reason you couldn’t call his wife was cause the—
LEON GRIZZARD: Because the violence towards her. And I can’t— I don’t recall if he had been charged with assaulting her or just simply she told us that’s what had happened, that’s what she would say if somebody asked.
RAYMOND: Yeah. Okay. And, the execution, were you aware of when it was coming up?
LEON GRIZZARD: Sure. We were contacted by a lawyer from New Orleans who was working on post-conviction stuff. And so I was aware. I was there in court. Just kind of coincidentally when Judge Wisser set the execution date. And so I actually laid eyes on Jackie. But he didn’t, you know, he was sort of had tunnel vision I think. He didn’t notice us there. I don’t look exactly the same as I did either.
RAYMOND: Any other things that you remember about that experience that you would want to share with people for the historical record about what it was like to try a death penalty case in 1986, or I guess 1987 in Texas, Travis County?
LEON GRIZZARD: Well just— No. The problem I think I have spoken of was that there just simply was not the materials around for defense attorneys. Or we weren’t able to find them to make sure that we were doing everything that we ought to do. The idea— the Penry idea— the mitigation evidence and charges was still in its, you know, in the nascent stages. And so we didn’t know what to do and we tried to do something with that, but we didn’t really know what we were doing. So a lot of those issues have thrashed out. I think that support for the death penalty has eroded somewhat, although I think Texas still is very much in favor of it. But I remember in hearing from the earliest days when capital cases started being tried again, that there were many more excusals for cause— challenges for people who could not participate in the death penalty than the time we had the case. We certainly had a number of challenges based on that, but it was not— I expected more, honestly. And so it’s been a big change. I’ve— I was appointed to do this death penalty case and, as I said a while ago, I’m a much better lawyer than I was at the time. And then I’m— I don’t want to say that in an ideal world lawyers who’ve been trying criminal cases for three or four years ought not be trying you know death penalty cases. And now it’s changed a great deal more. When I tried my second death penalty case in— I guess I don’t know when that would have been, late, boy, I’ll say it wrong. Oh, no, that would have been in the early nineties. There was a great more. I knew much more and the defense bar knew a great deal more about what we were supposed to do at the time. And so there was just a lot more material that was available. I think the public’s opinion is more nuanced now. People understand the issues. They understand the problems that of wrongful conviction much more than they did back in those days. And so I think it’s been a big change.
RAYMOND: Well, I was gonna ask you about that. How’d you get into the second death penalty case? And could you talk a little bit about that?
LEON GRIZZARD: Sure. That was David Madrigal and he is accused— he was convicted of having shot a DPS trooper in the back three times at a rest stop out on Highway 71. David had, and his brother had kidnapped a neighborhood sort of tough who had, I don’t remember, stolen something from David’s brother or something like that. And they took him out and were— they were giving him a talking to out at the rest stop. The officer came upon them and, you know, things seemed suspicious and one thing led to another and David panicked. Or, I guess perhaps the 100% truth will never be known, but shot him in the back three times and fled in his car to San Antonio and shot at a police officer down there. I guess, and I think at that time maybe we did not really have a death penalty list also. I think the judges just asked you to do it. And so Judge Flowers, that I have tried a bunch of cases before, asked me to do that one. And so we knew a lot more about what we were doing. We knew what psychologist that we wanted as our mitigation person. We knew who the state would use, and so we thought we had the right person to counter balance that. And so we just knew a lot more what we doing. There was a lot more materials available and so on and so forth. And so that’s the main thing. I just was much more confident in what we were doing. It still was scary. And picking the jury was still as big a drag as it ever was. But I just felt like we had, you know, for better or worse, we had done better for our client, or had done a good job for our client. And then he wound up getting the death— I mean he wounded up getting life instead of the death penalty. So it worked out.
RAYMOND: For killing a law enforcement, it’s something.
LEON GRIZZARD: Yes. It was very unusual. Right. And it was unique facts: He had been terrorized by an employee at a place where he worked, had trapped him in the storage room and terrorized him with a knife for an hour or so, trying to get money. The guy was strung out on crack. And it was after that, immediately after that that David had— he had purchased a gun and put bottles inside his windows and his doors so people couldn’t get him at night and so forth. And so there was a very direct cause and effect between that incident and the paranoia. We brought that inmate back from prison to testify about it and so forth. And David was an affirmatively otherwise sweet, little guy that would bake for his mother and was a very meek and mild mannered, you know, guy. And so it was not totally inexplicable that the jury would think that this guy might not be a danger. But still it was unusual. Usually, kill a police officer and you’re not gonna get a lot of sympathy. In talking about death penalty, I would be remiss if I didn’t mention the Paul Vallejo case. That is a case that was a death penalty case up until about a matter of weeks before we began jury selection. And that is another one that I just remember being sick to my stomach about trying, going to trial on that case cause it seemed pretty hopeless to us. It just seemed like it was just gonna be awful. And, in fact, it was awful, even though we got an acquittal on the case. But the significant thing there was the lead investigator for the Austin Police Department, Brett McDonald, did not believe that Mr. Vallejo was guilty on the case. And he wrote a memo to that effect that the DA’s office at first did not reveal to us and I don’t know all of the— well, and I could see in that it is not exculpatory evidence because it is just the opinion of the officer and it’s based on other pieces of evidence that were known to us. And so I don’t know if I really think it strictly is mitigating evidence, but it is certainly interesting to know. And when that came out then the State conferred and waived the death penalty. We tried the case a few weeks later and he was acquitted. The guy that apparently may have really committed the murder, based on the fingerprints found at the scene— and I don’t know enough about it, but I know on a mirror in one of the cabs and on a plastic bag in one of the cabs is the finger prints or palm prints of the person who was now about to go to trial for the case. And so if things had fallen out a little bit differently, if that police officer had not put that, had not put his feelings into that memo and it coming out the way it was, then Paul Vallejo could very well be a dead man now. And the real perpetrator, if indeed this person that’s about to go to trial, would be walking around free. And that is to me the biggest scary thing about the death penalty is it is so fraught with human factors. If you can make it 100% clean and you pick your people, I can see the argument for retribution. It might not be the one that I would buy, but you know, it’s a I guess a legitimate urge to punish people. But as long as people are involved in it there’s gonna be the potential for serious things to go wrong, for people to not get a fair shake, for innocent people to get convicted and killed. And the Paul Vallejo case is an example of that to me. He could’ve been a matter of weeks away from getting a death penalty. And if that had happened, the chances of this other stuff coming out or changing or anything are extremely slight.
RAYMOND: That officer who wrote the memo, did you talk to him specifically? Or how did that all come out?
LEON GRIZZARD: I do not recall now and I have heard gossip I guess I would just call it, from members of the DA’s office that is contrary to what— I’m hearing two things from people who purport to know something about it. And so I don’t know what to think about it. I know that Brett McDonald, I think, spent the, you know, maybe it’s an overstatement to say he spent the rest of his career in you know in weights and measures, or something like that. But it sure didn’t do his career one bit of good. And I’m sure he knew that at the time he wrote the memo.
RAYMOND: Good. Well, are there any other things? Do you want to talk about how these cases have effected you or that you would want people to know from your experiences, if they had walked a mile in your shoes, what it would’ve—
LEON GRIZZARD: Well, I just think that you’re never— you need to try to do the best job that you can. Death really is different. And it really is not just like a case that has a big punishment or something like that. But it’s a human being’s life. And I realize I’ve got plenty of inadequacies as a lawyer at the present time that I smart from the knowledge of every day, but and yet I know I can do a good job for my clients. But somebody who is a, who’s only been practicing for five years or eight years or something like that, you can’t possibly know enough. And you need to— it takes studying the law as well as working on the facts, and trial skills and all those kind of things. And it’s just a big responsibility. And I’m not sure who really is up to doing that, or ought to consider themselves up to doing that. It’s too much to do.
RAYMOND: If somebody— are you on the capital punishment list again?
LEON GRIZZARD: I’m not anymore. No. I figured out— and there are other factors. My wife is a prosecutor in the DA’s office and so I got off the appointment list in general about the time she and I started to hang around together. There’s some clients that don’t mind, or recognize that that’s not going to have a big effect on what the assistant DA handling their case is gonna do. But some people do feel uncomfortable about that. Or they can say they feel uncomfortable about it. And so I’m not on it anymore. I am, however, I have been appointed to second chair— Ira Davis, as a matter of fact, on two cases. One has been resolved, and the other is just starting up. And so I, even though I’m not on the appointment list, the judges appoint me from time to time from the bench on things. And so I have some involvement and have tried to keep up my knowledge of the law on that, as I always have read, like I said, try to read all the Court of Criminal Appeals slip opinions and the Supreme Court cases that deal with legal matters. And so I have tried to stay up. We’ll see that the death penalty committee has not met yet or not resolved whether or not they’re gonna seek the death penalty on Ira’s case. So, I don’t know what direction that will take.
RAYMOND: And just for the record, cause not everybody that watches this will know what the ‘committee’ means.
LEON GRIZZARD: The DA’s office has a committee of senior prosecutors who meet to review cases and give advice or recommendations to the elected DA about whether or not to seek the death penalty on the case. Ronnie Earle, the District Attorney, is the one that ultimately makes the call. But the attorneys who have— the prosecutors who have the case give presentations to the committee on the facts, the background of the defendant, and that type of thing. And then the committee meets and makes a recommendation and then Ronnie Earle makes the ultimate call.
RAYMOND: And that’s in Travis County?
LEON GRIZZARD: Yes. Yes.
RAYMOND: Is that fairly unusual? Do you know?
LEON GRIZZARD: I don’t know that I would think that it would be. I would think that most elected DA’s in serious matters, like everyone else, you’re gonna want to hear some input from people you trust about what to do on the case. And because the special nature of these cases I would be surprised if they, if the elected DA simply would read the file himself and make the call without some input from his staff.
RAYMOND: Okay. Good. Anything else you want to share?
LEON GRIZZARD: No, I don’t really think so. Thank you for letting me talk.
RAYMOND: Thank you very much for granting this interview. I really appreciate it.
LEON GRIZZARD: Okay.
RAYMOND: Thank you.
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2008 June 4thCreator:
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Texas After Violence ProjectType:
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