Anthony Allen Shore’s trial lawyers opened the punishment phase of his 2004 capital murder trial in Houston by telling the jury something few defense lawyers ever say aloud. Their client, they said, wanted to be sentenced to death. They were passing on his wish "against our advice, against our better judgment, against our 40 years of experience," the Fifth Circuit later recorded. They waived closing argument. The judge asked Shore whether his lawyers had stated his instructions accurately. He said they had: it was "very accurate."
A lawyer in a serial case speaks in two places. In court he speaks for a client, under the rules of the court, and often under instructions he would not have chosen. Later, in a book, an interview or a filing, he can speak for himself, and what he says is limited by what the record already holds and by what the lawyer is permitted to reveal. Six lawyers or teams of lawyers follow, in the United States, Ukraine and the Czech Republic: what they said while the cases were open and what they said once they were over. Several of them had every reason to see the case from the client’s side.
David Owen Brooks was 18 when he went to the Houston police on August 9, 1973, with his father and his uncle, saying he had information about Elmer Wayne Henley. By the next day he had signed two written statements. He was indicted in four deaths, two of the indictments joint with Henley, the Associated Press reported in October 1974, and he was tried on one: the murder with malice of William Ray Lawrence, 15, as a party to the crime.
His lawyers were the story for months before the trial began. In September 1974 the judge set a jury hearing on whether Brooks was competent to stand trial. His court-appointed lawyer, Ted Musick, planned to argue that Brooks was insane, and said that if Brooks were ruled competent he might advise him to accept a state offer to plead guilty to one count of murder in exchange for a 99-year sentence. In October Musick asked the court to stop the jail cutting Brooks’s hair, saying inmates and a jailer had forced a haircut on him; a sheriff’s lieutenant testified that Brooks had been made to have it but not abused, and the judge declined to step in.
The competency hearing opened in early November and ended almost at once. Musick and his co-counsel, Elaine Hocker, withdrew after a disagreement over strategy, above all over the insanity plan. "There’s a basic disagreement between me, the boy and the boy’s father," Musick said. Brooks’s father hired a Houston lawyer, Jim Skelton, who did not believe his client was insane. Hocker stayed on privately. On November 13, 1974, Judge William Hatten refused a prosecution suggestion to move the trial out of Houston, as had been done for Henley, saying the defendant believed he could get a fair trial in Harris County. He also barred lawyers on both sides from commenting on the case.
The order meant that, while the case was open, the lawyers on both sides said nothing for publication about it. A jury convicted Brooks in early March 1975, and the next day a jury of eight women and four men sentenced him to life. The prosecutor had urged jurors to "consider the nature of the animal." Brooks was 20. His father said the conviction would be appealed. Skelton argued that the trial had been unfair because Judge Hatten let the jury hear evidence about all the killings, though Brooks was tried for only one, and he noted that Brooks could still be tried on the three other indictments. No later prosecution on them was reported. The Texas Court of Criminal Appeals affirmed the conviction on May 16, 1979.
Decades afterward Skelton gave Texas Monthly a different kind of recollection. Brooks had come to see Dean Corll as a father figure, the magazine reported in 2011, and Skelton recalled Brooks saying that Corll was the first adult man who did not make fun of him. It is a lawyer’s memory of a client’s explanation, offered thirty-six years later and not tested in any courtroom. Brooks died on May 28, 2020, aged 65, at the prison hospital in Galveston after testing positive for COVID-19, wire reports said.
Richard Ramirez was arraigned in 1985 on 68 felony counts, including 14 murders, and tried on 43 of them in Los Angeles County Superior Court. Much of the record on his defense concerns how he came to have it.
On October 9, 1985, Municipal Court Judge Elva Soper relieved the public defender on condition that Ramirez sign an agreement retaining a private lawyer, Joseph Gallegos. He did not. On October 22 he asked instead to retain two other lawyers, Arturo Hernandez and Daniel Hernandez, who were not related. Judge Soper told the court that neither would qualify for appointment in a capital case under the county bar’s plan, which required among other things ten years of bar membership and fifty trials. She noted that both had been held in contempt in Santa Clara County on at least two occasions and that another contempt matter and a request for sanctions against Daniel Hernandez were pending. She ordered both men to tell Ramirez of any facts that might affect their ability to represent him, and she offered him an independent lawyer, Victor E. Chavez, to review their contract. On October 24, in chambers, Ramirez said he had read and understood it, declined to talk with Chavez, and substituted the Hernandez lawyers in open court.
The question of his mental state arrived the same week. A psychiatrist who had watched him in court, Lillian Imperi, told United Press International she thought he was psychotic and incompetent to stand trial, though she had not examined him. Arturo Hernandez said the lawyers saw him almost daily and considered him "very rational, very intelligent." The court concluded that he answered its questions in a logical and intelligent way.
At the trial the defense argued that there was little physical evidence tying Ramirez to particular crimes and that the identifications were unreliable. It called Elizabeth Loftus, a psychologist known for research on eyewitness memory, among other witnesses. The jury convicted him on all 43 counts on September 20, 1989, and the case moved to the penalty phase. On September 27 his lawyers announced that they had made a tactical decision to present no evidence at all. Daniel Hernandez said he had located witnesses in El Paso willing to testify. In an exchange on the record, Ramirez said he understood his right to testify, did not wish to, and agreed with his lawyers' choice. The court ruled his waivers "freely, voluntarily and intelligently made." The jury heard nothing about his childhood or background, and it returned a verdict of death. Judge Michael Tynan sentenced him to death on November 7, 1989.
The choice of those lawyers was tested on appeal. On August 7, 2006, the California Supreme Court unanimously affirmed the convictions and the death sentence, in an opinion by Justice Carlos Moreno. It held that the trial court had not erred in letting Ramirez substitute the lawyers he wanted, since a defendant has a qualified right to retained counsel of his choice and the court had warned him and offered independent advice. Ramirez had not claimed ineffective assistance on the appeal itself, leaving that for a later habeas corpus petition. The United States Supreme Court declined to review the case in 2007. Ramirez died on June 7, 2013, aged 53, at Marin General Hospital, of complications of lymphoma.
Donald Harvey worked in hospitals in Kentucky and Ohio from 1970 to 1987. He was charged on April 6, 1987 with a single death, that of John Powell, 44, a patient at Drake Memorial Hospital in Cincinnati, after a pathologist at the Hamilton County Coroner’s Office examined Powell’s body. William Whalen was appointed as his public defender. What Whalen said afterward is the most extensive of any lawyer’s account here, because he turned it into a book, "Defending Donald Harvey," written with Bruce Martin and published in 2005, and an excerpt appeared in Cincinnati Magazine that May.
At his arraignment Harvey pleaded not guilty by reason of insanity. Court-appointed psychologists reported no strong evidence of mental illness, and Whalen said he would probably drop the defense, Time reported in August 1987. Harvey also refused to pursue an insanity plea himself, according to Whalen’s account. Police had asked Harvey whether he had killed anyone else, Whalen wrote; an officer, Jim Lawson, put the question but dropped it when Harvey hesitated. Lawson said years later that he steered away from the subject to protect the case on Powell’s death.
The wider story came from outside the courtroom. According to Whalen, nurses from Harvey’s ward telephoned a Cincinnati television anchor, Pat Minarcin, with names of patients they suspected had been killed, and the list grew to 33. Drake’s management took a different line, Whalen wrote: the hospital’s chief administrator told staff that internal and police investigations had turned up no evidence of other killings and ordered them not to talk to reporters. WCPO aired a half-hour special report on June 23, 1987.
Whalen had been warned what the report would say. After a WCPO reporter told him the station would link Harvey to other deaths, he visited Harvey in the Hamilton County jail and asked whether he had killed anyone else. "Yes," Harvey said. Asked how many, Whalen wrote, Harvey began to estimate and settled on 70 as the upper limit. That figure, "as many as 70," is the one that stands in later reports as Harvey’s statement to his lawyer. Whalen then made a proposal to the prosecutor, Ney: Harvey would describe every killing, and the state would not seek death. In August, Whalen’s account says, Ney accepted. Harvey pleaded guilty in Ohio in August 1987, UPI reported, and also in Kentucky, and news reports since have given his total as 37 killings.
Whalen also set down what he understood of his client. Harvey had been shunned by schoolmates as a boy, he wrote, and had felt powerless all his life. That is a lawyer’s reading of a man he spent months with. Harvey died on March 30, 2017, aged 64, two days after he was beaten in his cell at the Toledo Correctional Institution; the inmate responsible pleaded guilty in September 2019, the Associated Press reported.
Anatoly Onoprienko was convicted in 1999 of 52 murders committed in two periods, nine in 1989 and 43 between October 1995 and March 1996. The Zhytomyr Regional Court tried him from November 23, 1998 to March 31, 1999, and sentenced him to death. The Supreme Court of Ukraine upheld the sentence in August 1999. After the Constitutional Court ruled the death penalty unconstitutional in December 1999 it was replaced by life imprisonment, and he died in Zhytomyr prison on August 27, 2013, aged 54, RIA Novosti and Interfax-Ukraine reported.
His trial lawyer, Ruslan Moshkovsky, later gave an extended interview. The interview, with Tatyana Nikulenko of the magazine Bulvar Gordona, was published in 2006 and republished by the news site OBOZ.UA that January. It is first-hand and partisan, the account of a lawyer about the man he represented, and every claim in it is his.
He said he did not treat Onoprienko’s childhood in an orphanage as a reason for leniency. He said Onoprienko lost his place in the merchant fleet for dishonesty and small thefts. After 1989 Onoprienko spent about five years in western Europe, Moshkovsky said, and was expelled twice; he sought political asylum in more than one country, committed petty thefts, and said he had tried to join the French Foreign Legion and had been held in prison in Germany. After one expulsion, in 1992 by Moshkovsky’s account, Onoprienko stood on one leg for a whole day in Boryspil airport near Kyiv, apparently to appear mentally ill, and was taken to a psychiatric facility in Kyiv and registered as a patient there. Moshkovsky said Onoprienko told him he killed for money, yet most of the robberies yielded very little: cosmetics, shoes, even a bucket of herring. Moshkovsky also put the arrest on April 16, 1996, while the Suspilne archive and Espreso say April 14.
The psychiatric stay came up in court. ZN.ua reported in December 1998 that when his lawyer asked him to explain a stay in the Kyiv City Clinical Psychiatric Hospital, Onoprienko answered that the court "does not have all the data." The same newspaper had reported earlier that month that Onoprienko was demanding a lawyer. In November 1998, in the first week of the trial, Amnesty International criticized President Kuchma over a comment on the case and the death penalty, according to its statement and a report by Radio Free Europe.
The sentence of death was never carried out. Ukraine had stopped carrying out executions in 1997, and by 2000 life imprisonment had entered the law.
Petr Zelenka was a nurse on the anesthesiology and resuscitation ward of the hospital in Havlíčkův Brod. Between May and September 2006 he gave patients on the ward a medicine that no doctor had prescribed for them. Seven died and ten survived. He was arrested on December 1, 2006, in Jihlava, where he had taken new work. The Regional Court in Hradec Králové convicted him of seven murders and ten attempted murders on February 21, 2008 and sentenced him to life imprisonment.
His first lawyer, Vítězslav Menšík, spoke to the press in December 2006, within days of the arrest. He said his client had given a consistent explanation: he had wanted to see how the doctors would respond to sudden changes in a patient’s condition. The lawyer described him as calm and cooperative under questioning, neither evasive nor denying the allegations. He had been confident that he could hide what he was doing and had believed he would not be suspected. His arrest had surprised him, the lawyer said, and he now seemed resigned to a long sentence and said he regretted what he had done. Radio Prague reported that, according to the lawyer, he may have acted to test whether the doctors were good enough to discover the truth, and that he reportedly said he had wanted to "see some action."
His family replaced that lawyer on December 8, 2006. The next day the new defense said he suffered from a mental disorder and regretted the killings. By the time of the trial he was represented by Jan Herout. The trial opened on January 21, 2008, and on its first day, Aktuálně.cz reported that he had retracted his confession and blamed madness. In February the same site reported that experts had said he was mentally healthy. The presiding judge said, Radio Prague reported, that had the death penalty not been abolished in 1990 he would have imposed it.
Herout also argued the appeal. Novinky reported on June 6, 2008 that Zelenka would seek a new trial; the High Court in Prague confirmed the conviction and the sentence on June 11, 2008. The Supreme Court rejected an appeal in April 2009 and the Constitutional Court rejected a complaint in November 2009. He may first apply for conditional release in 2038.
The two defense accounts did not agree. The first lawyer described a man who wanted to see how doctors would respond; the second described a mental disorder, which experts then told the court he did not have. The court convicted him on seventeen counts.
Anthony Allen Shore was identified in 2003, when a DNA profile taken from him after an unrelated 1998 plea in Houston matched evidence from the 1992 murder of Maria del Carmen Estrada, 21. Prosecutors charged him only with her death, the case with the strongest physical evidence. At the trial, in Harris County in 2004, his defense lawyers did not dispute that he had killed her, according to the Fifth Circuit. They asked the jury to find him guilty of murder, not capital murder. The jury convicted him of capital murder.
At the punishment phase the state called 35 witnesses, the Fifth Circuit recorded, and the jury heard four days of evidence about the other killings he had confessed to, the Associated Press reported. Defense counsel opened by telling the jury that Shore wanted to be sentenced to death, in the words quoted above, and told the court he had made it clear they were not to argue for any other result. The jury returned a death sentence. ABC13 gives the date as October 21, 2004. The Texas Department of Criminal Justice records his arrival on death row on November 15, 2004.
The words of his trial lawyers became the ground for the next stage. New lawyers brought a federal habeas petition with seven exhibits that had never been put before the state courts, among them two reports describing brain damage. They argued that he had been denied the right to present mitigating evidence, that his trial lawyers had failed him by not investigating his background, not presenting the brain-damage evidence and not representing him at the punishment phase, and that executing a man with a brain injury would violate the Eighth Amendment. The federal district court in Houston denied relief on February 19, 2016. On January 6, 2017, a panel of the Fifth Circuit denied a certificate of appealability. The court held that the record supported a knowing waiver of mitigating evidence, that his lawyers could not be faulted for following his instructions, that the new evidence could not be considered because the state courts had never seen it, and that the brain-injury claim was barred.
When an execution date was set for October 18, 2017, Shore’s lawyer, Knox Nunnally, spoke to reporters. He said Shore’s demeanor was that of any condemned man and that, given the choice, he would rather live out his life on death row. That date was called off hours before it was due, after prosecutors raised an alleged plan involving another condemned man, the Texas Tribune and the Associated Press reported. The district attorney, Kim Ogg, who had called him "a true serial killer" whose victims were "the most vulnerable in society," said the death penalty was appropriate. By January 2018 his appeals were exhausted and his lawyers filed no last-minute challenges. "We’ve made the best arguments we can," Nunnally said. Shore was executed at Huntsville on January 18, 2018, the first person put to death in the United States that year.
The six accounts do different work. Skelton’s, Moshkovsky’s and Whalen’s are retrospective: a lawyer telling a reader what the client was like, years after the verdict. The Hernandez lawyers and Shore’s lawyers spoke in court, on the record, where an appeal court could test the words: the California Supreme Court upheld Ramirez’s choice of counsel, and a federal appeals court held that Shore’s lawyers could not be faulted for following his instructions. Menšík’s was a press statement made in the first weeks of a case and replaced within days when the family changed counsel. Musick’s was a statement made as he left the case.
None of them can be judged by the record alone. The words and the dates survive, and so do the courts' rulings. What the lawyers would have said if they had been free to say more does not. In the Brooks case a judge’s order had said, while the case was open, that they could not.
• 1973 (August 9 and 10): David Owen Brooks goes to Houston police as a witness and signs two written statements.
• 1974 (September to November): Brooks’s competency hearing is set, then ends when his appointed lawyers withdraw; Jim Skelton takes over. November 13: Judge Hatten keeps the trial in Houston and bars lawyers from commenting.
• 1975 (March): a Houston jury convicts Brooks of one murder and sentences him to life.
• 1979 (May 16): the Texas Court of Criminal Appeals affirms.
• 1985 (October 9 to 24): Judge Elva Soper allows Richard Ramirez to substitute Arturo and Daniel Hernandez for the public defender.
• 1987 (April 6): Donald Harvey is charged with one death in Cincinnati; William Whalen is appointed his public defender.
• 1987 (August): Harvey pleads guilty in Ohio under an arrangement Whalen proposed.
• 1989 (September 20 to 27): Ramirez is convicted on 43 counts; his lawyers present no penalty evidence. November 7: sentenced to death.
• 1998 (November 23): Anatoly Onoprienko’s trial begins in Zhytomyr.
• 1999 (March 31): Onoprienko is sentenced to death; the sentence is later replaced by life imprisonment.
• 2004: Anthony Allen Shore is convicted of capital murder in Houston; his lawyers tell the jury he wants a death sentence.
• 2005: Whalen’s book on the Harvey case is published; an excerpt appears in Cincinnati Magazine in May.
• 2006 (January): Moshkovsky’s interview on Onoprienko is republished online.
• 2006 (August 7): the California Supreme Court affirms Ramirez’s convictions and sentence.
• 2006 (December 1 to 9): Petr Zelenka is arrested; his first lawyer speaks to the press; the family replaces him and the new defense cites a mental disorder.
• 2008 (February 21 and June 11): Zelenka is convicted and sentenced to life; the High Court in Prague confirms.
• 2011: Texas Monthly publishes Skelton’s recollection of David Owen Brooks.
• 2013: Ramirez dies (June 7); Onoprienko dies (August 27).
• 2017 (January 6 and October 18): the Fifth Circuit denies Shore a certificate of appealability; his first execution date is called off hours before it falls due.
• 2017 (March 30): Harvey dies after a beating in prison.
• 2018 (January 18): Shore is executed at Huntsville.
• 2020 (May 28): Brooks dies in prison custody.