Death and Texas

Death and Texas

The state’s justice system crushes poor people like Ernestina Rodriguez.


Bandera, Texas

Men in spurs still ride on horseback to the Eleventh Street Cowboy Bar here, hitch Smokey or Pancho to the post and, after enough beers, sing songs of their own making that are wry or a bit bawdy but, above all, stake the singer’s claim to the “real” in a region too open to infection from potpourriana and the bric-a-brac of kowboy kulture. Bandera, “Cowboy Capital of the World,” has only 975 people, but it’s getting dicey to take a horse through town now that some 13,000 cars travel up Main Street every day.

Thirty-seven miles northwest of San Antonio, Bandera is in the heart of the Hill Country, where dude ranches outnumber the working variety and No Trespassing signs sprout like bluebonnets in the spring, demarcating the property of “Winter Texans” or city folk with money to invest in the rustic experience. It is the fourth-fastest-growing county in Texas, outpacing those that hold Dallas and Austin. Realtors’ brochures tout premium property in an area that’s “on the way to nowhere,” and people mention that a nearby ranch of 300-some acres recently sold for $3.2 million, but the houses most easily in view in Bandera are modest affairs with scrappy yards that speak of too little money and too little time. Local men work for ranches or work construction or “work for each other,” according to a real estate agent in town, “but how much are you going to make shoeing horses?” Women work mostly in the services. Father Stanislaw Oleksy of St. Stanislaus Church says the churches in the area have a well-coordinated relief system to pay a heating or electric bill or cover a prescription or distribute food if once in a while someone doesn’t make payroll and families need something to help them hold on. “Of course you have a lot of roads where you never see these people. You never know they exist.”

Off Highway 173 five miles to the north and not far from a ranch where the rich pay to shoot exotic creatures is one of those places you won’t see unless you’re looking. It’s a colonia, unincorporated, unregulated territory not too different in appearance from the pictures of maquiladora communities that Ross Perot held up as an argument against NAFTA back in 1992. Three years ago a baby died to a Chicana/Mexican family living there in a one-room shack attached to animal pens of similar design, and before the grief-struck mother knew what was happening the state had transformed her personal tragedy into a case of capital murder.

Ernestina Rodriguez lived in that colonia off 173, in that shack measuring ten feet by fourteen feet, with her husband and four little children, without plumbing or running water, a place patched together out of wood and corrugated metal for which they paid $200 a month rent. On February 11, 1998, her two-and-a-half-month-old son, Ramiro, stopped breathing. Now at 28 she’s serving a life sentence at the Hobby Unit in Marlin, Texas, for knowingly, intentionally killing him by starvation.

Last year’s presidential campaign directed enough unwelcome light on the more outrageous features of the Texas criminal justice system that the state legislature spent a fair portion of its session this spring trying to make some face-saving adjustments, but this is not one of those cases that would cause a politician embarrassment. Nor is it the kind of case, like the one involving the Texas woman recently charged with drowning her five children, that whips up national comment. Except for the relatively rare allegation of starvation, it is crushing in its ordinariness. Like most prisoners in Texas, which ranks tenth in the country for poverty and third in the world for having a population in chains (after the United States and Russia), Rodriguez is poor. And as in most cases in which someone dies mysteriously and the people involved are poor, the first assumption was murder. At the Eleventh Street Cowboy Bar a perfectly nice rodeo rider said he’d been called for jury duty in the case but was excused after he admitted he was sure of the mother’s guilt before hearing any evidence. “I know these people,” he said at the bar–not Rodriguez and her family per se but these people, “inbred sons-of-bitches.”

In the autopsy, baby Ramiro was found to have milk in his stomach, which suggests he had been fed, and throughout his short life the family’s neighbor heard him cry the way any baby does, which is inconsistent with death by starvation. Recall the stock image of a thousand famine stories in which the African village has “an eerie silence, the babies too weak even to cry.” Rodriguez says she fed the baby alternately at the breast and by bottle, with formula or watered-down cow’s milk, not the best approach but hardly murderous. She says he was a hungry baby, yet he didn’t grow. When he stopped breathing and she ran to her landlord’s trailer to use the phone, she was hysterical. But the coroner presumed the child had been starved from the get-go, and alternative explanations were never pursued. Rodriguez was charged with capital murder.

Overcharging, getting a grand jury to indict on the most severe rap in hopes that a defendant will take a plea and do some jail time, is a common prosecutorial tactic; in Texas it is practically the rule. Rodriguez has always insisted on her innocence. After she was sentenced to life, her husband, Noel Perez, pleaded guilty–he says his lawyer demanded it–and avoided the same outcome. He was sentenced to twenty-five years and could be out in 2012. Unless she wins on appeal, it will be thirty-eight years before Rodriguez is eligible for parole.

Although it has become a commonplace to associate Texas with miscarriages of justice with capital punishment, the three linked as if by some perverse force of nature, the state didn’t ask for the death penalty in this case. In fact, it rarely does in small counties, where the mechanics involved could be financially ruinous and politically problematic, as resources would be strained and other cases would have to go waiting. So Rodriguez had a standard trial, before a white male judge and a jury of twelve men. The only women involved in the trial besides herself were a prosecutor, a Latina who displayed contempt for her and her entire family, and an alternate juror, who is so upset over the verdict that her husband has asked Rodriguez’s appellate lawyer, Adrienne Urrutia, not to call anymore, since discussing it rips her up.

Rodriguez didn’t have a court-appointed lawyer who fell asleep at trial or was senile or drunk or about to be indicted for a crime himself, all conditions that have attended some of the state’s most notorious cases. Instead, her family members pooled all the money they had, $10,000, and hired attorneys (also men) who didn’t know what they were doing or didn’t feel it was worth it to care. Defense attorneys called the most damaging witness, Rodriguez’s landlady, who, they learned too late, had a vendetta against her and handed the prosecution its theory of the case: that this mother just didn’t want her baby. They repeatedly opened doors to speculation that they didn’t close, or allowed the prosecution to make speculations that went unchallenged. They never hired an investigator, never called their own expert witnesses to rebut the starvation charge, never called witnesses who could testify that Tina Rodriguez welcomed the birth of Ramiro. Again and again they asked questions whose answers they didn’t know, each time giving the prosecution’s experts more credence than they deserved.

Urrutia has noted this and more in her appeal brief, and has presented testimony of a nutrition specialist and a pediatric expert in malnutrition who studied the autopsy report and concluded that Ramiro may have died from something more rare than starvation: a genetic defect that prevented him from metabolizing the milk he drank; that caused it, in effect, to ferment rather than build flesh and bone and keep him alive. She calls this the “most compelling case” she’s had in twelve years of practice. To take it on, working day and night under deadline, hiring an investigator, finding experts and filing a motion for a new trial, she put her entire practice on hold for more than a month. “Clients came and went; it cost me everything.” And she was appointed to this case, paid $3,280, including expenses.

Urrutia says there are plenty of people in Texas who defy the stereotype of court-appointed lawyers being lazy or worse, but it’s not a surprise, given the rate of payment, that so many cut corners. The Court of Appeals has ordered the district court to hold a hearing on Rodriguez’s motion for a new trial, and the state is resisting all the way. “I shouldn’t have to fight this hard just for a hearing,” Urrutia says. “People forget, but the state’s job isn’t to win; the state’s job is to secure justice.”

Back in Austin legislators were tinkering with the mechanisms of what passes for justice. Bills to place a moratorium on the death penalty didn’t have a chance (though they got farther than anyone had expected), but legislators did manage to ban executions of mentally retarded persons, a ban Governor Rick Perry, like George W. Bush before him, recently vetoed. Outside the Capitol before that bill was finalized, Perry was on hand, with police, FBI, DEA, highway patrol, various county officers and a gaggle of prison wardens, all representatives of the institution that has guys with IQs of 57 and such sitting on death row, for the symbolic kickoff of the Texas Law Enforcement Torch Run for Special Olympics. Texas is first in the country in executions, first in executions of the retarded, first in fundraising for Special Olympics. Perry made some treacly remarks about “the special in Special Olympics” and then lit four torches with the Flame of Hope, sending runners out on the Austin streets. It was all phony (after a few blocks the runner-lawmen would quench their torches and go back to work), a photo-op for Perry to show off Texas as a bighearted place that rewards the “good retards” for hard work–run! jump!–while holding the needle in reserve for the bad ones. Now some in the State Senate vow they’ll try to override Perry’s veto.

The legislators did succeed in granting convicts access to state-paid DNA testing in cases where the results might determine innocence, a law that could benefit 13,000 incarcerated people. They set minimum standards for lawyers appointed to defend poor people in criminal cases and allocated $20 million to counties to help pay those lawyers. They banned racial profiling and barred judges and expert witnesses in the course of sentencing from using a defendant’s race or ethnicity to determine his or her future dangerousness. They increased money damages for persons wrongfully convicted of a crime, to $25,000 for each year of imprisonment plus legal fees.

In Bandera, Richard Trevino, overhearing talk on the legislature’s newfound interest in civil rights, said, “I’m a Yellow Dog Democrat and I voted for Gore. But I wish I’d voted for Bush so I could take credit for getting him out of Texas.” As Susan Smith of the Austin American-Statesman points out, though, it lets Democrats off the hook to attribute all the ills of Texas to Bush’s nearly six-year governorship. And significant as the new measures are, none of them (with the possible exception of the law regarding wrongful conviction) will affect people like Tina Rodriguez. There are things more intractable than the law, more deeply rooted, things that politicians, Democrats and Republicans alike, have come to accept almost as part of the landscape. Trevino himself is a lawyer, representing working-class people in civil actions, work he says he’s able to pursue only because his wife’s salary as a nurse covers the family’s bills. For Trevino, his clients, anyone on the short end, there’s no mistaking that law is the handmaid to power, and power is something the vast majority of people here haven’t got enough of.

Tina Rodriguez didn’t have enough of it–a woman yoked with poverty, isolation, a body weakened from successive birthings, a jealous and abusive husband who kept her on a psychic short leash and sent a large portion of the family’s money to his other wife and children in Mexico. If there was a way out, she couldn’t see it. Even if she could, as a woman ill disposed to discuss her problems, she was a good daughter of Texas, whose boosters strain to present stoicism in the face of the stuck life as a virtue.

In Austin I had visited the newly opened Bob Bullock Texas State History Museum, dedicated to the late Democratic lieutenant governor who was vital in establishing the Bush “legacy.” For the most part the museum’s permanent exhibit presents the state’s history as a provocative saga of colonial, racial and class conflict, but ticket-sellers were eager to steer tourists to a special installation called “It Ain’t Braggin’ if It’s True,” designed to cement the state in the caricature of Wild West individualism. “Texas is no place for the faint-hearted,” reads one panel. In addition to drought, floods, hurricanes and boom and bust cycles, “it tests the individual with social structures that resist change.” For this, “Texans have one tool that gets them out of most tight spots: perseverance.”

Paul Robbins and Andrew Wheat of Texans for Public Justice have put together a list of things to which Texas can claim bragging rights. Among the fifty states, it ranks second in hunger; third in malnourishment; fifth in children living in poverty; forty-sixth in prenatal care; forty-seventh in child immunizations. It ranks first in almost every category of environmental hazard; first in people without health insurance; second in poor children without health insurance; forty-fourth in public health spending; and fiftieth in per capita state spending. If Texas were a person, someone would move to take away its kids.

As it is, the state’s fitness is never on trial, and it decides who gets to be a parent. The day before Tina Rodriguez and Noel Perez buried Ramiro, Child Protective Services seized their three other children. In Kerrville, twenty-eight miles north of Bandera, Tina’s mother, Lionora, remembers how the family was just returning home when a white van and a police car came into view. In a flash, a woman grabbed 4-year-old Paublo and 3-year-old Kassandra. Another woman was pulling at eighteen-month-old Noel Jr., trying to rip him from Tina’s arms, while the older ones screamed, “Mommy, Mommy,” and the little one clutched on in terror. That was February 13, 1998. No one in the family–not their parents or grandparents, not their five aunts and five uncles, not their twenty-six cousins–has seen them since.

The State of Texas terminated Tina and Noel’s parental rights. Lionora Rodriguez says that when she asked Judy Brown of CPS if she and their grandfather could have the children, “she told me no because there were too many people living here, plus my house was too poor and we were too old.” Lionora, 56, whose house is crowded and down at the heels but vibrant with well-loved, good-tempered grandchildren, says she was never allowed even to propose how she might make room for more. “They just went around us as if we were nothing.” Now Paublo, Kassandra and Noel Jr. have been adopted out, severed permanently from their parents and familial roots, lost through a proceeding known as “the capital punishment of civil law.”

Amid the Hill Country’s ranchettes and antique shops, people don’t know the half of it. The only serious press treatment of the Rodriguez case was an excellent story by Debbie Nathan in San Antonio’s alternative paper, the Current. Otherwise, there’s just rumor and shards of fact and fiction, half-remembered. Someone wandering in the Guadalupe Cemetery in Kerrville might pause at the coincidence of names and dates on two little graves there. Ramiro Perez 1997-1998. Roman y Fabian Perez, 1998-1998. Now, what was that about?

Tina Rodriguez was pregnant again when she was arrested, and at five-and-a-half months, while awaiting trial in the county jail–her family, tapped out from retaining lawyers, couldn’t make bail–she gave birth to twins. They lived about an hour and a half. Their grandmother learned of this in a call from a funeral home; by then her daughter had been transported back to the cell. Lionora says Tina sleepwalked through the trial; “she wasn’t with us.” Grief is another country.

When she first got to the Marlin prison, about 175 miles from Kerrville, Rodriguez worked in the fields picking fruits and vegetables; sometimes she was part of a gang that would be driven out to clean local parks. Now she works in the print shop. She is allowed no personal phone calls, and can receive two visitors for two hours once a week. She has found Jesus. No longer the mother of six children, she is a Texas prisoner. Life as an endurance test.

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