AUSTIN - Texas Atorney General John Cornyn offers the following information on James Otto Earhart who is scheduled to be executed after 6 p.m., Wednesday, August 11th.
FACTS OF THE CRIME
On May 26, 1987, the body of nine-year-old Kandy Kirtland was found buried in a trash heap in Bryan, Texas. Her arms had been bound with part of an electrical cord, and she had been shot once in the head. She wore the same turquoise shorts, white shirt, white tennis shoes, and jewelry she had worn two weeks earlier when she had disappeared.
Several people testified to having seen Earhart and his car in the area on the day that Kirtland disappeared. Earhart admitted to having given Kirtland a ride on the afternoon of her disappearance, and made an incriminating statement while talking to his mother while in jail awaiting trial.
Due to the damage done to the bullet when it struck Kirtland in the head, it could not be traced to a six-shot .22 revolver owned by Earhart. However, an elemental analysis of the bullet by the FBI demonstrated that it was "analytically indistinguishable" from two of the five remaining bullets in Earhart's revolver and three other bullets found at Earhart's home. Numerous electrical cords were also found at Earhart's residence, but none were determined to be exactly like the one removed from the body of Kirtland.
Human blood was found on Earhart's gun and the car he drove at the time of the offense. Human blood was also found on shirts recovered from Earhart's automobile. The blood on Earhart's gun was consistent with "blow-back blood"--blood which sprays back from a gunshot wound at close range--but was too minuscule to test. Blood in the car was also too minuscule to test. However, tests on the blood found on the sleeve of Earhart's shirt revealed that it belonged to someone other than Earhart and was consistent with the blood type of Kirtland. Finally, the State presented evidence of Earhart's flight from the crime shortly afterward, during which time Earhart sold his car under an assumed name.
In June 1987, Earhart was indicted in the 272nd District Court of Brazos County, Texas, for the intentional murder of Kandy Kirtland while in the course of kidnapping, a capital offense. Pursuant to a defense motion, venue was transferred to the 21st District Court of Lee County, Texas, where Earhart entered a plea of not guilty to a jury. On May 18, 1988, the jury found Earhart guilty of capital murder. A separate punishment hearing ensued, and, on May 19, 1988, the jury answered affirmatively the two special issues submitted. In accordance with Texas law, the trial court assessed Earhart's punishment at death.
Earhart's conviction and sentence of death were automatically appealed to the Texas Court of Criminal Appeals, which affirmed on September 18, 1991, and denied a motion for rehearing on January 29, 1992. The United States Supreme Court granted a petition for writ of certiorari on June 28, 1993, remanding the case to the Court of Criminal Appeals for further consideration. On remand, the Court of Criminal Appeals again affirmed Earhart's conviction and sentence in a decision issued on April 6, 1994. Earhart's second petition for a writ of certiorari was denied by the Supreme Court on October 31, 1994.
On January 6, 1995, the trial court scheduled Earhart's execution for February 7, 1995. Earhart requested the trial court to withdraw his execution date and to appoint counsel to assist in the filing of a state habeas application. Both requests were denied by the trial court on January 23, 1995.
On January 27, 1995, Earhart initiated federal habeas proceedings in the United States District Court for the Western District of Texas by filing a motion for appointment of counsel and for a stay of execution. The district court granted both motions on February 2, 1995. Earhart filed a petition for federal habeas relief on September 29, 1995. On May 15, 1996, the district court rejected all claims raised by Earhart. On January 9, 1998, after full briefing and oral argument from the parties, the United States Court of Appeals for the Fifth Circuit affirmed the district court's denial of habeas corpus relief. The Supreme Court denied a petition for writ of certiorari on October 13, 1998.
Earhart then filed an application for habeas corpus relief in the state convicting court. On May 6, 1999, the trial court issued findings of fact and conclusions of law, which included a recommendation that the relief sought be denied. On June 30, 1999, the Court of Criminal Appeals denied habeas corpus relief based on the trial court's findings and conclusions and its own review of the record. A petition for writ of certiorari is pending before the Supreme Court.
PRIOR CRIMINAL HISTORY
At the punishment phase of trial, the State presented evidence of other violent conduct by Earhart. Earhart's sister, Johnnie Ruth Johnson, testified that in 1981 she and Earhart were returning from visiting the grave of their deceased brother when they stopped at a church. Earhart exited the car and went to the bathroom. When he returned, he went over and placed his hands on Johnson's neck. Johnson said, "James, I'm your sister. What's the matter?" Johnson then got out of the car and ran approximately four miles to her house and has not been alone with Earhart since the incident.
Sharon Brown, Earhart's cousin, testified that in 1981 she was watching television with Earhart when he put his arm across her throat and his hand on her stomach. Brown became angry and was able to persuade Earhart to take his hands off her. Brown then ran into her bedroom and locked the door.
Mary Husband, a resident of Brazos County, Texas, testified that Earhart answered an advertisement she had placed in a local paper for the sale of furniture. While there, Earhart behaved in very threatening manner toward Husband and her seven-year-old son. During his visit, Earhart had his pants down to where his pubic hair showed, and he held his hand cupped over his pelvic area. He also appeared to be holding something in his hand, which appeared to be a gun or a knife. Husband was so frightened that she sent her son to her next-door neighbor. After telling Earhart that her husband was on his way and that she had two trained guard dogs in the house, Husband was able to persuade Earhart to leave.
DRUGS AND/OR ALCOHOL
There was no evidence of drug or alcohol use connected with the instant offense.
08/17/99 Larry Keith Robison (Tarrant County)
08/18/99 Joe Mario Trevino (Tarrant County)
09/01/99 Raymond James Jones (Jefferson County)
09/10/99 Willis J. Barnes (Harris County)
09/14/99 William Prince Davis (Harris County)
09/21/99 Rickie Wayne Smith (Harris County)
10/21/99 Pedro Sosa (Atascosa County)
11/17/99 John Michael Lamb (Hunt County)
01/13/00 Johnny Paul Penry (Polk County)
If this execution is carried out, and if Kenneth Dunn is executed August 10, 1999, it will be the 184th execution since executions resumed in Texas in December 1982 and the 20th since General Cornyn took office.
This case has been handled by Assistant Attorney General, Chief of the Attorney General's Capital Litigation Division.
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