Thursday, May 21, 2009

Darryl Durr *


Murdered by the State of Ohio on April 20, 2010

Darryl Durr

Race: B
County: Cuyahoga
Clemency Hearing Date: September 30, 2009

Clemency Report

Justice for Darryl Durr

I. Inadequacies in Darryl's Legal Proceedings
A. The State's Case rested on the testimony of Deborah Mullins. If Ms. Mullins was telling the truth, she had ample opportunity to go to the police the night Angel Vincent disappeared. Instead she waited over nine months to come forward with her story, at a time where her relationship with Darryl seemed to be breaking apart.
B. The funding for investigative and expert witness assistance was so meager ($500.00) that defense counsel could not obtain the assistance that was needed to find and talk to witnesses and to assist in the mitigation phase of the case.
C. The State failed to turn over reports that included information that would have assisted the defense. These included statements:
a. That the deputy coroner's initial findings concerning the date of death indicated the body had been dead "from days to a couple of weeks". Angel Vincent disappeared on January 31, 1988 and the decomposed body that was later identified as hers was found on April 30, 1988, three months later.
b. An expert opinion that the body was that of a 20 - 30 year old female. Angel Vincent was 16 years old when she disappeared.
c. Police reports that identified other reasons for Angel Vincent's disappearance. The week prior to her disappearance, Angel Vincent had telephoned her father in Texas and expressed her desire to visit him. The authorities had previously charged the decedent with being habitually truant from school. The police treated her January 1988 disappearance as if she had run away.
d. The trial court rushed the case forward to trial. The trial began 53 days after counsel was appointed.
e. The trial court severely limited defense counsel's questioning of potential jurors, and seated a jury in four hours. Voir dire in a capital case usually takes anywhere from three to five days.
f. The racial overtones in the case overshadowed the trial. Darryl Durr is African American. The victim was a young Caucasian female. Deborah Mullins was a white female as was Darryl's common - law wife Janice Jackson Durr. During a break in the trial proceedings, the judge stated that he "wanted to see Darryl's black person ass in the chair for messing with white women". A police officer told Darryl's stepfather that he did not like him "because I was like Martin Luther King".
g. Trial counsel failed to investigate Darryl's family life and background in anticipation for the penalty phase of the case as is required by the ABA Guidelines for Capital Counsel in the Representation of those charged with an offense punishable by death. After Darryl was convicted, the case proceeded quickly to the penalty phase. The defense called Darryl's mother and his common law wife. Defense counsel failed to present a cohesive mitigation case and to explain to the jury information to give Darryl less than a defense sentence.
II. Defense Counsel were ineffective in the Penalty Phase
A. Counsel representing the capitally charged must meet minimum standards of proficiency - both in defending against the state's charges and in convincing the sentencer that death is not the appropriate sentence.
B. Counsel failed to investigate and conduct a thorough review of Darryl's background.
C. Counsel failed to present the following information to the jury, because they failed to investigate:
a. Tammy Jackson was a friend of Darryl's and a former girlfriend. She stated in her affidavit that Darryl was a nice person and he was never physically or verbally abusive to her and was never disrespectful.
b. Charles Johnson was Darryl's step-father. Mr. Johnson could have testified concerning some of the attitudes and experiences of a black man. He also could have discussed incidents from Darryl's childhood that would have humanized Darryl in the jury's eye.
c. Michael Durr was Darryl's older brother. Michael could have related what Darryl's childhood was like and his perceptions of Darryl's childhood.
d. Denise Durr was Darryl's older sister. She indicated that her father used to beat her mother. She spent time watching Darryl while her mother worked. Darryl found out as an older child that he had a different father (Eddie Wright) than the one who lived in the house. Darryl was very proud of his son and daughter and was a good father.
D. Counsel failed to obtain the assistance of experts
a. A social worker or mitigation specialist: This person is responsible for the gathering of records relating to the client's life including education and employment records. They also locate and interview persons, who are familiar with the client, be it family, friends, employers, teachers, etc. The mitigation specialist then creates a social history or overview of the client's life to aid defense counsel in creating a strategy for the penalty phase. No such person was retained, documents located, or social history created.
b. An independent psychologist: This person could have done psychological interviews and testing of Darryl. In state post-conviction, Dr. James Eisenberg examined Darryl and obtained the following information.
i. Darryl Durr is a 28 year old, single African-American male. He describes himself as an extremely private person who was quite naive about racism. Mr. Durr has shown a preference for white women beginning in his late adolescent years and had little or no understanding of the intolerance that he might experience from both the black and white communities. He grew up in a family with inconsistent discipline and little supervision. He never knew his biological father and lacked appropriate male role models through much of his childhood. He was mostly supervised by his siblings. During his early teens he spent much time away from home without any serious consequences upon his return. His family seemed somewhat "unconcerned" about his absences and would give him a bath upon his return. It appears that everyone within Darryl's immediate family were isolated emotionally from each other, though they loved each other.
ii. As a result of his emotional isolation from his family, Darryl grew up with strong feelings of ambivalence concerning relationships. Ambivalence, in this sense, is a psychological state noted by the existence of mutually conflicting feelings or thoughts, such as hate or love together, about the same person, object, or idea. Without adequate understanding of emotions, feelings, or even sexual tensions, Darryl responds to the external world often with opposing forces.
iii. The Minnesota Multiphasic Personality Inventory - 2 (MMPI - 2) is a standardized questionnaire which elicits a wide range of self descriptions that are scored to give a quantitative measurement of an individual's level of emotional adjustment. Mr. Durr responded to the test with sincerity and a normal degree of expressiveness. The profile is likely to be valid. Individuals obtaining similar profiles have difficulties around the issue of impulse control and setting limits. They tend to be impulsive and overactive. Individuals with similar profiles experience repeated failures in interpersonal relationships. Although dependent and having strong needs for affection, they are anxious much of the time, feel easily threatened, and are overly suspicious of others. They have difficulty expressing emotions in a modulated fashion. There is also an extraverted, active, and outgoing quality to the overall MMPI-2 profile. There are no indications of any underlying thought disorder. There are no indications of any involvement with drugs or alcohol.
iv. Records reveal little in the way of any singularly traumatic event. His family pretty much let him do what he wanted. In his early schooling, Darryl had a rather optimistic attitude towards the world as reflected in his own statement written for the Diocese of Cleveland. In my opinion, this optimism ended when he began dating white women. He was then confronted with racial issues from both the black and white communities and had little ability to cope with those reactions and his own feelings. His family is not one to talk about these kinds of things. As such, Darryl's developing ambivalence towards these relationships resulted in confusion and a lack of identity, with the accompanying psychological defense mechanisms of denial and projection. These are defense mechanisms used to ward off the feelings of anxiety, isolation, and rejection.
v. Defense Counsel's presentation of mitigation excluded a psychological explanation of Mr. Durr and gave the jury no professional understanding of his life history and the developmental consequences he experienced as a result of his immediate family environment. Without such an explanation, the jury had no understanding of Mr. Durr's life, his particular family background, his strengths, his weaknesses, or of any underlying psychological issues. All the jury heard at mitigation was the testimony of his mother and ex-wife and an unsworn statement by the defendant which rarely sheds light on psychological issues.
vi. It is my opinion, with reasonable scientific certainty, that a psychologist's testimony at mitigation would have provided the jury additional and necessary information upon which to deliberate as to whether or not the aggravating factors outweighed the mitigation factors. At a minimum, a psychologist's input into mitigation was necessary for the attorneys to develop a meaningful and coherent strategy. At the time of this mitigation, December 12, 1988, psychologists were available for the specific evaluation of capital defendants for purposes of providing testimony at mitigation. Without such testimony, the jury had no understanding of the defendant, his personal development history, his strengths and weaknesses, his psychological functioning, and the way in which these possible mitigating factors related to the crime and the aggravating factors.
vii. It is my opinion, with reasonable scientific certainty, that Mr.Durr's lack of appropriate role models, absence of a biological father, emotionally isolated family, and his early environment should have been presented to the triers of fact and would have been considered as a mitigating factor under Section (B) (7) of the O.R.C. 2929.04.c. An expert on cross-cultural racial issues: Dr. Judith Skillings, a clinical psychologist with a specialty in cross-cultural racial issues also provided an affidavit for Durr's post conviction petition. Dr Skillings lengthy affidavit shed light on issue present in Darryl's case, which involved his relationships with three white women. She could have explained to the jury some of the reasons that Darryl seemed to be drawn to white women, other than his own attorneys’ explanation that he had to either be a drug dealer or a pimp. She could have also testified concerning racial issues that are not well known or understood by white people.
E. Counsel failed to act as an advocate on Darryl's behalf in the penalty phase:
a. trial counsel gave a one (1) page opening statement in which they never discussed any of the legal aspects of mitigation, the burden of proof, or offered any defense theory of the case.
b. trial counsel called only two witnesses, Darryl's mother and his common law wife (whose testimony had already been rejected by the jury in the trial phase of Darryl's case), because they had not interviewed other members of Darryl's family or other significant others in his life.
c. trial attorneys developed no theory of mitigation and had no organized method for examining the mitigation witnesses.
d. counsel gave a three (3) page closing argument in which they improperly discussed all mitigating factors, including those not raised by the Darryl.
e. counsel went through the first six mitigating factors listed in R.C. 2929.04(B)(1)-(6) and told the jury that none of them applied, implying he had no mitigating evidence.
f. In regard to the final mitigating factor listed in R.C. 2929.04(B)(7), counsel told the jury that he did not know what this mitigating factor meant, but if it had "any applicability at all," it might include residual doubt about Darryl's guilt.
g. counsel limited the jury's consideration of mitigation to one factor only, and then further limited this final factor to residual doubt. Then counsel further conceded that residual doubt may not even be a "legally" appropriate matter to consider under R.C. 2929.04(B)(7). In so doing defense counsel once again made the State's argument for the State.
h. trial counsel also failed to provide the jury with any plausible explanation as to why Darryl would be involved in a relationship with two white women at the same time, conceding instead that this was a "very unusual relationships."
i. Trial counsel failed to make appropriate objections to the prosecuting attorney's closing argumentj. Trail counsel failed to make appropriate objections to the jury instructions
III. Darryl has made productive use of his time on Ohio's Death Row
In the 20 years that Darryl has been on Ohio's Death Row, he has made the following contributions and enhancements to other lives:
A. He developed a ongoing friendship and "marriage" with Gina Vincente, a woman in the Philippines.
B. He became a legal clerk and tutor to other inmates. He has studied civil law to be able to assist incarcerated fathers to get contact and/or custody of their children and to preserve their parental rights. Darryl, on his own, filed many legal documents concerning his own child Angel Durr. Angel's mother, Deborah Mullins, lost custody of Angel in 1991 because of drug abuse and neglect.
C. In his early years on death row he staged a hunger strike to get the cells of the inmates painted since they were dirty.
D. He regularly donates what he can to the international charity "Toy Box" that sells children's handicrafts that are then sold with the money going to the children.
E. He helped Filipino burn victims May and Myla Santiago to get medicine and school supplies. Along with Gina, he tried to help them come to the United States for treatment at the Shriner's Hospital.
F. He is assisting another Filipino woman to prepare to go to college for nursing school by assisting them through the paperwork maize and application process.
G. He has developed a close relationship with a Filipino family that considers Darryl a father and grandfather and tries to help them with school supplies.
H. He mentors prisoners by helping them join the African Methodist Episcopal Church, and the African Hebrew Israelites.
I. He writes letters to "at-risk" youth at the African Methodist Episcopal Church to help them stay on the right path.
J. He helps fellow inmates to get things they need or want like books and to draft the paperwork necessary to get medical help.
K. He helps fellow inmates with their legal proceedings.
L. He helped to prevent a possible assault-murder of CO Propst by encouraging prisoners to go to OSP psychologist Dr. Ceremiele. The psychologist was then able to talk to the administration and to stop CO Propst from further harassing prisoners and destroying their property which was creating a hostile and dangerous environment. CO Propst was eventually fired for this and assaulting another guard.
M. He has filed many grievances to try to improve the conditions of all inmates on death row.
Some abbreviated speaking points are listed below.
Trial counsel was ineffective for failing to:
Interview members of his family and obtaining a social history.
Object to portions of the State's closing argument.
Object to allegedly improper jury instructions.
Obtain experts for mitigation.
Trial counsel stated because the court would not cover the costs for a pathologist, criminalist, psychologist, or mitigation specialist, they didn’t attempt to get any sort of expert where a psychologist would have provided the jury with mitigation evidence.


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