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Death Sentence Reversed Due to “Accidental” Perjury by Texas Prison Investigator

by Matt Clarke

The Texas Court of Criminal Appeals reversed a death sentence imposed on a state prisoner convicted of capital murder, because a prison investigator had falsely described the prisoner classification system in the Texas Department of Criminal Justice (TDCJ).

In 2007, a Texas jury convicted Adrian Estrada, 27, of the capital murder of his pregnant girlfriend and her 12-week-old fetus. During the punishment phase, in an attempt to show that Estrada would not be a danger to others if given life without parole instead of the death penalty, the defense introduced the testimony of prison expert and former TDCJ spokesman Larry Fitzgerald. Fitzgerald described the classification system in Texas prisons, saying the least restrictive general population classification was G-1 (an outside trusty) and the most restrictive was G-5 (close custody). He testified that the least restrictive classification available to a person sentenced to life without parole for capital murder was G-3.

The state called A. P. Merillat, a criminal investigator for the Special Prosecution Unit, as an expert to counter Fitzgerald’s testimony. The Special Prosecution Unit, an independent office, prosecutes crimes statewide – primarily offences that occur at TDCJ facilities.
Merillat claimed that after ten years, a prisoner sentenced to life without parole for capital murder could achieve a less restrictive classification status than G-3. He was incorrect and his testimony was materially false.

During punishment deliberations, the jury sent the judge a note asking about the discrepancy and requesting clarification as to whether Estrada could achieve a custody level lower than G-3 after ten years. The judge did not answer the question, but told the jury to deliberate on the law and evidence. They returned a death sentence, finding that Estrada posed a future danger to society, and Estrada appealed.

The Court of Criminal Appeals took judicial notice of the fact that, effective September 1, 2005, the TDCJ had changed its regulations to specify that the lowest classification level for a prisoner serving life without parole was G-3. The state confessed error in the case, claiming Merillat’s perjury was accidental, and agreed that “in the interest of justice, [Estrada] should receive a new trial on punishment.”

The appellate court implied that previous versions of TDCJ regulations had allowed a prisoner sentenced to life with-out parole to advance beyond G-3. However, Texas did not have a crime on the books carrying a sentence of life without parole prior to September 1, 2005, when the alternative sentence in capital cases was changed from life with parole consideration after 40 calendar years to life without parole.

Excusing the defense’s failure to object to Merillat’s false testimony, the Court of Criminal Appeals reversed Estrada’s death sentence due to the state’s unintentional use of perjured testimony and remanded the case to the trial court for a new punishment hearing. See: Estrada v. State, 313 S.W.3d 274 (Tex.Crim.App. 2010).

On April 21, 2011, Estrada accepted a sentence of life without parole, and in return for the prosecution declining to again seek the death penalty he agreed to forfeit his right to appeal the sentence. He had served three years on death row after being sentenced to death due to Merillat’s inaccurate testimony.

Other death-sentenced prisoners may seek re-sentencing due to Merillat’s false description of the TDCJ’s classification system. “He has made the same error in other cases,” said Brian Stull, a staff attorney for the ACLU’s Capital Punishment Project. “We think it could have wide-ranging ramifications.”

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Related legal case

Estrada v. State