Death Penalty Not Certain for Alleged Texas Cop Killer

May 07--Brandon Montgomery Daniel is the first suspect in decades who could face the death penalty if convicted of fatally shooting an Austin Police Department officer.

Travis County District Attorney Rosemary Lehmberg has not yet announced whether she will seek the death penalty in the incident, which police say was caught on video.

However, attorneys and legal experts who are not involved with the case say her decision whether to seek the ultimate punishment for Daniel will not come as automatically as some might think. They add that if Daniel is found guilty, a death penalty verdict may not be a sure thing.

"Most prosecutors are going to do their due diligence and look into the facts of the case very closely," said Shannon Edmonds, the staff attorney for the Texas District & County Attorneys Association.

The 24-year-old software engineer remains jailed on a capital murder charge following the shooting of Austin officer Jaime Padron last month. If convicted, Daniel will either face death or life in prison.

To seek capital punishment, prosecutors must establish that Daniel would be a danger in the future. And legal experts have said that killing a police officer usually fits the bill.

Lehmberg's first assistant, prosecutor John Neal, said the decision has not been made yet.

Edmonds said Lehmberg likely will seek the death penalty and said the district attorney likely is under a tremendous amount of pressure from the law enforcement community to do so.

"Killing a police officer is one of the things that almost always motivates a prosecutor to seek the death penalty," Edmonds said.

Police officials say Daniel fatally shot Padron, a former Marine and father of two young girls, when the officer tried to stop him from shoplifting at a North Austin Wal-Mart in the early hours of April 6. Police Chief Art Acevedo said video evidence shows Daniel shooting Padron before being subdued by two employees.

Daniel's lawyer, Bill White, declined to comment for this story but has previously said that his client has expressed deep remorse over Padron's death. Daniel's mother has told reporters that before the incident, he had been taking the anti-anxiety drug Xanax and drinking tequila, and that he remembers nothing of the incident.

That drug- and alcohol-induced fugue state will be an important issue at the trial, said Richard Dieter, a law professor in Washington and the executive director of the Death Penalty Information Center, a nonprofit organization that compiles statistics on capital punishment and has been critical of it.

Daniel's state on the night of the shooting could even sway the district attorney away from seeking the death penalty, Dieter said.

"If there is enough of that evidence that is credible, that might convince a prosecutor that they're not likely to get a death sentence," Dieter said.

"A lot of cases look like the death penalty because the victim is an officer, but it's not always prosecuted that way. They don't want to try a long death penalty case and not get the death penalty," he said.

However, George Dix, a criminal law expert and University of Texas law school professor, said that if convicted of killing the Austin officer, Daniel would "obviously be a contender" for the death penalty.

"This act, in and of itself, is sufficient to establish his dangerousness," Dix said, even though Daniel's prior criminal record mostly involves arrests for drugs, driving while intoxicated and evading police -- not violent offenses.

But jurors must agree unanimously that there are no mitigating circumstances that would lessen Daniel's responsibility for the act.

"It could be that he's young, that he has mental health issues, that he was under the influence of drugs or alcohol at the time," Edmonds said.

Daniel's background will take center stage during his trial, the experts said. To spare him the death penalty, Daniel's attorneys will need to create a narrative that would explain why the shooting happened, a narrative that a jury can sympathize with, Dieter said.

"The main event (in a capital murder case) is the sentencing hearing, because usually the person is guilty," Dieter said.

A capital murder suspect with Daniel's background -- educated with a promising job at Hewlett-Packard and a lack of violent criminal history -- is "a little unusual," but not unprecedented.

In the handful of times over the past few decades when an Austin-area law enforcement official was killed in the line of duty and a suspect was apprehended, the Travis County district attorney's office has not always sought the death penalty.

David Lee Powell was arrested shortly after gunning down Austin officer Ralph Ablanedo in 1978. Former district attorney Ronnie Earle sought and won the death penalty for Powell. After more than three decades of appeals, Powell was executed in 2010.

Powell's case bears some similarities to Daniel's. Powell was about the same age as Daniel and was once considered a promising student. Powell was high on drugs the night he shot Ablanedo and threw a hand grenade -- that did not explode -- at officers.

But when Edwin Delamora was charged with ambushing Travis County sheriff's Deputy Keith Ruiz while Ruiz was serving an arrest warrant in 2001, Earle decided not to pursue the death penalty -- a move that drew sharp criticism from law enforcement officers, Ruiz's family and then-Texas Attorney General John Cornyn. Delamora was convicted and received a life sentence.

Earle never said why he didn't seek death in the case, telling the American-Statesman in 2003 only, "We did what we thought was right."

Earle did not respond to calls for comment for this story.

A Harris County case shows that a jury might not agree to the death penalty, even if a suspect is convicted of killing a police officer.

In Houston in 2008, Juan Quintero-Perez was convicted of killing Houston officer Rodney Johnson after he was stopped for a traffic violation in September 2006. A Harris County jury sentenced him to life in prison without parole, a decision that shocked many people in the community.

Jurors told the Houston Chronicle that they found several mitigating factors that caused them to opt for life in prison, including that Quintero-Perez "has value" and is loved by many family and friends.

Dieter said that after the Texas Legislature in 2005 passed a law allowing juries to consider life without the possibility of parole in death penalty cases, the number of death sentences handed down has dropped significantly.

Before that law, about 40 people a year in Texas received death sentences, Dieter said. That number has gone down to eight or nine a year recently, he said. The state still leads the country in executions.

If Daniel is convicted, a jury could decide to give him life without parole if they believe it is possible for him to be rehabilitated and atone for his crime and believe that he is not a danger to other inmates or guards in prison, Dieter said.

But Sgt. Wayne Vincent, the president of the Austin Police Association, said officers are adamant that they want Lehmberg to seek capital punishment for Daniel.

"I think there's no better clear-cut case for the death penalty," Vincent said. "We wouldn't dare contemplate anything else from our district attorney."

Contact Patrick George at 445-3548

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