Crime and punishment: After 32 years, has Powell's execution lost its meaning?

Austin American-Statesman
Monday, June 7, 2010

Heavily armed, deeply paranoid and strung out on drugs, David Lee Powell was a nightmare personified in 1978.

Sitting in a car that had been pulled over on a dark Austin side street, Powell sighted his AK-47 through the rear window. Police radios caught officer Ralph Ablanedo's scream as the first bullet penetrated his bulletproof vest. Nine more shots found their mark.

The well-liked father of two young sons died shortly after the 12:30 a.m. attack .

Barring the unexpected, Powell will be executed for that crime on June 15 — 32 years, three weeks and five days after Ablanedo was buried with honors.

Texas has never executed a man after so much time has passed, giving rise to a question that speaks to a basic concept of punishment and justice: Has Powell's execution been robbed of its meaning and purpose?

The clean-cut 59-year-old man who will be strapped to the Huntsville gurney to receive a trio of lethal drugs is nothing like the nightmare from another era. Powell's time in prison long ago removed the methamphetamine taint that helped turn a promising honors student into a jittery, lank-haired killer, and a fiercely loyal group of supporters insists that putting him to death now would be a travesty.

"He's the old David Powell" — intelligent, compassionate, articulate and thoughtful — and no longer poses a danger to society, said attorney David Van Os, who befriended Powell in 1968. "This is not how the death penalty was intended to be used."

But for those most touched by Ablanedo's murder, Powell's execution remains a meaningful — and desired — goal.

Irene Ablanedo, Ralph's sister, plans to stand at the window in the Huntsville death chamber to watch Powell die from five feet away. She will be thinking about her brother, what he meant to his family and how he was taken away too early. The pain of loss still burns.

"I can't wait for that bastard to take his last breath," she said. "That is what he deserves."

For some officers, Powell's death is a matter of fairness — an eye for an eye — that validates their service in a dangerous profession and adds a measure of protection by sending a clear message: If you kill a cop, you die.

More than 100 current and retired Austin police officers — including Ablanedo's friends and some who weren't even born when he died — will drive or take a chartered bus for an execution-day trip to Huntsville, which they're calling the Journey to Justice. Those who can't make it will toast Ablanedo in a downtown Austin bar at 6 p.m., the time set for Powell's execution.

"It is a matter of unfinished business," said retired police Lt. George Vanderhule, who helped Ablanedo's widow plan his funeral. "This has gone on for 32 years, and he has managed to evade justice."

But defense lawyer Richard Burr argues another perspective. Powell, he said, has led an exemplary life in the harsh conditions of death row — teaching illiterate inmates to read, defusing guard-prisoner tensions and offering true friendship to many in the "free world."

"Powell is someone who contributes much more to life than his execution would contribute to the symbolic goal of retribution 32 years after the murder of Ralph Ablanedo," Burr wrote to the Texas Board of Pardons and Paroles in hopes of getting Powell's sentence reduced to life in prison.

Speaking recently from death row, Powell said he wants to live. "I think I still have something to offer in this life," he said. But he's also begun preparing for an execution that appears increasingly likely.

Saying he is horrified to have caused Ablanedo's murder, Powell has tried to apologize to the officer's family and to express regret for the pain he caused by "an act that was a betrayal of everything I believed in and aspired to be."

"I had wanted to do it for decades," Powell said of his December 2009 letter to Ablanedo's family. "Although it was obviously too little too late, it seemed like the right thing to do. It seemed like a small, tentative first step towards healing the tear in the social fabric that was caused" by the murder.

'You'll be all right'

It was shortly after midnight on May 18, 1978.

Powell — carrying an automatic rifle with 38 rounds in the clip, a .45-caliber handgun, a hand grenade and $5,000 in methamphetamine — was on his way to Killeen for a drug deal. Girlfriend Sheila Meinert was driving his red Mustang, which was missing its rear license tag.

Ablanedo — a five-year officer who loved fishing, married his high school sweetheart and had two boys, ages 5 and 1½ — was patrolling South-Central Austin. He pulled the Mustang over on Live Oak Street and ticketed Meinert. Computer trouble prevented dispatchers from checking on Powell, so the officer let them go.

But before the Mustang had traveled half a block, the computer sprang to life and revealed that Powell was wanted for theft and writing bad checks to dozens of Austin merchants. Ablanedo again signaled Meinert to pull over as the dispatcher alerted officer Bruce Mills to provide routine backup.

Mills heard a scream over the police radio — it sounded like Ablanedo, but he wasn't sure — and arrived a short time later to find his friend bleeding on the street.

"He got me with a shotgun. He got me," Ablanedo told Mills, also describing the weapon as a machine gun.

Trying to sit up, Ablanedo asked how badly he was hurt. Running a hand over his stomach, he felt blood and lay back down.

You'll be all right, Mills replied.

As paramedics arrived, other officers cornered Powell in the parking lot of a nearby apartment complex. Somehow, nobody was hurt in the shootout that followed or when the grenade with a 16-foot kill radius, its pin pulled but a safety device still engaged, failed to explode after being thrown near police.

Meinert was quickly arrested. She served four years of a 15-year sentence for being a party to attempted capital murder. (Now living near Seattle, she hung up on a reporter who recently contacted her by phone.)

Powell ran. Police, believing they had him boxed into a wooded area, sent in six officers and two bloodhounds. Everyone else was told to stay out; anything moving would be considered a target.

About the same time, Ablanedo, 26, died on a hospital operating room table.

Powell, only one year older than Ablanedo, was found hiding in bushes at Travis High School about 4 a.m. and arrested without incident. His capital murder conviction four months later prompted this line in the American-Statesman: "Given the long, complex appeal process that is automatic upon conviction of capital murder, Powell probably will remain in a cell for several years."

It was a lot longer than that. Powell's appeals resulted in two new trials, in 1991 and 1999. Both times, Powell was returned to death row after jurors concluded he still posed a threat to society.

'Not a troublemaker'

Before the death penalty can be imposed — today and when Powell was first convicted in 1978 — jurors must find beyond a reasonable doubt that the defendant will probably commit future acts of violence that pose a "continuing threat" to society. Powell's supporters say it's absurd to believe the gentle, intelligent man of 2010 poses any such risk.

While on death row, Powell was disciplined a few times, but only for minor rules infractions such as having too many prison-issued socks or refusing to remove a poster from his cell wall, prison officials said. Four guards and a supervisor, testifying at Powell's 1999 retrial, called the inmate respectful and nonviolent.

"He was very quiet, always well-mannered," Mark Morrow, a 14-year guard, testified. "Not a troublemaker, by any means."

Psychiatrist Seth Silverman of Houston has concluded that Powell poses "virtually no risk" of future violence.

Powell has no history of violence beyond that one horrific act in 1978, understands the string of bad choices that led to Ablanedo's murder and displays a superior intellect that allows him to learn from past mistakes, said Silverman, an expert in addiction and forensic psychiatry, in an affidavit supplied by defense lawyers.

In addition, Powell's age adds an element of safety, Silverman said, pointing to research showing that arrest rates fall 90 percent from age 20 to 60.

Silverman began treating Powell about three years ago when the inmate became convinced that voices from androidlike robots were telling him to commit suicide. Aided by his intellect and ability to form healthy relationships, Powell quickly responded to psychotherapy, and the symptoms disappeared within several months, Silverman said.

Longtime friend Genevieve Hearon of Austin said Powell has kept a remarkably even temperament and displayed consistent concern for others despite living in harsh conditions, including confinement in a 60-square-foot cell since death row moved into new quarters in the Polunsky Unit in 1999.

Hearon's nonprofit, Capacity for Justice, works on behalf of prisoners with disabilities and presented Powell with its first Brothers' Keeper Humanitarian Award in 2008. Powell, she said, helped speed accommodations for deaf and wheelchair-using prisoners at the Travis County Jail, where he was held during his retrials, and worked to connect disabled death row inmates with outside help.

"In all of my contact with him, he's been helping other prisoners," Hearon said.

Van Os, who befriended Powell when they were University of Texas freshmen in 1968, believes Powell could safely be released from prison.

"Everything that is known about David Powell demonstrates that the horrific act of violence that he perpetrated against officer Ablanedo and the Ablanedo family is an anomaly in his life. He is a very peaceful, nonviolent person," said Van Os, a former Austin lawyer who now practices in San Antonio.

"I'm not trying to excuse what he did. I don't excuse it. It was a murder, and it was horrible," Van Os said. "But the death penalty is supposed to be imposed only on a person who's a continuing danger to society and in his case, that is being made into a farce."

'Just really scary'

With details of Ablanedo's murder still fresh in 1978, Travis County prosecutors had little trouble arguing that Powell posed a lasting threat. And during the 1991 and 1999 retrials, with defense lawyers presenting evidence that Powell had appeared to reform while behind bars, prosecutors never wavered.

"I want you to picture the blood of Ralph Ablanedo seeping through his bulletproof vest," prosecutor Robert Smith told jurors in 1991. "David Powell is here because of a character disorder that cannot be rectified."

Lead prosecutor Terry Keel placed Powell's handgun on a table in front of Powell and asked jurors: "Does this make you feel safe? The death penalty is society's self-defense. You have a very manipulative, very dangerous individual here."

Jurors in the 1991 trial deliberated for 10 hours. Nine of those hours were spent on Powell's dangerousness, said Charles Carsner, the jury foreman who still lives in Austin.

The turning point was a psychologist's notes discussing Powell's vision or dream "where he was driving at night on a lonely road, and a cop pulls him over, and he kills the cop," Carsner recalled recently. "It was just really scary."

After jurors in the 1999 retrial came to the same conclusion, Powell's appeals argued that his death sentence was unconstitutional because there is no evidence that he still posed a danger. U.S. Magistrate Judge Andrew Austin disagreed.

"Powell contends that he was 'a different person' when he was retried in 1999. Regardless of whether this court might agree with that statement, the jury was not compelled to accept that contention, and it plainly did not," Austin wrote in 2005, adding that a federal appeals court has "explicitly rejected the argument that improving oneself after committing a heinous crime prevents a jury from concluding that one is a future danger."

Powell supporters remain convinced that such a legalistic argument ignores Powell's character, contributions and contrition.

But Ronnie Earle, the former Travis County district attorney who prosecuted Powell in 1978, is unconvinced.

"There was never any doubt about the applicability of the law and the appropriateness of the sentence. It was an ambush totally out of nowhere," Earle said. "His soul is between him and his own personal higher power. His actions are between him and the law."

'He was a genius'

Powell was a fish out of water when he arrived at UT for the fall 1968 semester.

Described as shy and naive, he came to Austin from his family's 80-acre dairy farm near Campbell, a town of fewer than 500 about 60 miles northeast of Dallas. He had been voted most likely to succeed at Campbell High School and was valedictorian of his 15-member graduating class even after skipping his junior year.

"He was the class nerd; he was a very bright man," former classmate Karen Hair testified at Powell's 1999 trial. "We thought he was a genius. He had very thick glasses, and he walked around with a smile on his face all the time."

His SAT scores were almost perfect, and officials with Plan II, UT's honors program, were excited to have him, UT adviser Donette Moss testified in 1999.

After initial trouble adjusting, Powell's grades and schoolwork improved — but trouble arose during his sophomore year, Moss said. Powell got involved in the anti-war movement and began experimenting with drugs. He dropped out of UT in 1970 and slid deeper into addiction over the next eight years.

In the years before Ablanedo's death, Powell's family was alarmed to find the calm, responsible boy replaced by a flighty, fast-talking man with paranoid delusions. Former friends had trouble recognizing him in his thin, disoriented, disheveled state.

"He called me once and said he had to be careful talking to me because the CIA was after him," uncle Clem Struve said.

"I've had mental illness in my family, and I thought he was having a nervous breakdown," Marjorie Powell, his mother, said recently from her Dallas home. "I called a psychiatrist, different people for help."

Powell, however, disappeared. No amount of searching could turn him up, Struve said.

Then came the phone call from Austin about Ablanedo's death. "I remember screaming. Nobody could stop me from screaming," Marjorie Powell said. "It destroyed me, really. I love him with all my heart, of course. And I have never stopped loving him."

Marjorie Powell spent her life savings on lawyers and sat through emotionally wrenching trials, crying out in anguish when her son was sentenced to death, again, in 1991. She and her husband divorced, and Bill Powell died in 2007.

If there has been any silver lining, Marjorie Powell said, it has been watching her son regain the sweet disposition he had as a child.

"He tries to help anybody that's around him, even the guards. One guard talked to me and said he was all for David, that David seemed like a wonderful person — and that's a guard," she said. "I've had mothers of different cellmates call to say how David has been so kind to their sons."

'What a hero'

Before he reported to duty for his final patrol shift, Ralph Ablanedo spent a few minutes sitting with his wife, Judy, on the front porch of their South Austin home. He was sniffling from spring allergies but eager to work, Judy recalled.

"He was absolutely the model that you would want a police officer to be," said former Austin police Sgt. Sam Cox, who was Ablanedo's supervisor. "He had an even temperament, a great family, a supportive wife and a bright future, and he loved what he was doing. He was just a good, decent human being."

Soon after her husband drove away, Judy Ablanedo put their children to bed. Several hours later, she was awakened by pounding on the front door.

The officer at the door had already summoned a neighbor to care for the Ablanedo children, and he whisked Judy to the hospital in his patrol car.

How bad is it? she asked.

It's serious, he told her.

They were at the hospital only a few minutes before Police Chief Frank Dyson and a doctor walked into the waiting room. Judy sank into a chair and sobbed.

"Nobody had to say anything," she said. "It was written on everyone's face."

Mills was already there, having ridden in the ambulance with his friend and patrol partner. Together, he and Judy took on the grim task of telling Ablanedo's parents, who had moved to Austin in 1964, that their son was dead.

Over the next two years, Judy Ablanedo and Mills spent a lot of time together. He'd listen to her anger and sadness in late-night phone calls. A relationship bloomed, and they married in October 1980.

David Ablanedo, only 17 months old when his dad was killed, has learned about the man through stories shared by other family members, from reading scrapbooks of newspaper clippings and from photographs. One of his favorite photos hangs on a wall at the Austin Police Department. He had seen it while visiting Bruce Mills, whose last name he assumed.

"You think about, 'Who was my dad?'" David Mills said. "Naturally, you want to know who he was."

Over the years, he has thought of his father as a hero, not just because of what happened that night, but because of his devotion to his family and desire to make the world a better place.

"He died in the line of duty serving the city, and as a boy, you look up to your dad," he said. "You look to Ralph and say, 'What a hero.'"

'Nobody wins'

For years, Ablanedo's family has watched in frustration as Powell's case, which they viewed as clear-cut, prompted new trials and appeals.

With Powell's execution now days away, they are making plans for their own journey to justice.

David, who works in the San Francisco area for a human resources consulting firm, is flying in for the execution. His older brother, Steve, a 911 dispatcher in Boston, also will attend.

Ralph's sister Irene, his brother Armand and their 87-year-old mother, Betsy, are driving to Huntsville a day early to make sure nothing comes between them and the execution witness room. Ablanedo's father died of natural causes in 1981.

They predict relief will be the prevailing emotion when the death sentence is carried out — mostly because it will mark the end of any legal proceeding.

"But it is one of those things where nobody wins," Judy Mills said. "He will be put to death, and Ralph will still be gone. It's not about feeling better. There is nothing to feel good about."

In recent months, Bruce Mills has pondered the death penalty and Powell's execution. He thinks that in this instance, part of the purpose of the execution has lost its meaning.

"I don't think it is about deterrent," he said. "It is about retribution."

Judy Mills said, "If it had been done in a timely fashion, it might have been a deterrent, but when you can play the system for that many years, I don't think it is."

But Bruce Mills said the passage of three decades doesn't make Powell's execution any less deserved. He said he supports Powell's rights, including his ability to appeal, but said the legal course that wound through 30 years has been unfair.

"That is the injustice to the family and what the death penalty was meant for," Bruce Mills said.

'Terribly sorry'

Hands cuffed behind his back and a guard at each shoulder, Powell is led into a cramped booth in the Polunsky Unit's visitor lounge. The cuffs are unlocked through a hole in the metal door behind him, and he smiles widely as he picks up the phone to begin his first-ever interview with newspaper reporters.

Powell at 59, his hair gone silver and his gaze steady, is a far cry from the dazed, unkempt man who appeared in photos after his arrest.

He pauses often to collect his thoughts, which tend toward the philosophical.

"Thirty-two years ago, I was responsible for an enormously evil act, and it must have affected most or all people who lived in Austin and their level of comfort, the way they saw themselves and their neighbors," he said. "And no apology I could give would be powerful enough to express my regret for that.

"But every person is more than the worst thing they have ever done, and I am no exception."

Powell's lawyers always advised him to avoid contact with Ablanedo's family and the media, but with his appeals exhausted, he is free to try to explain himself.

He's also free to pursue a goal he knows will be elusive: redemption.

Powell's letter to the Ablanedo family — the first time he publicly took responsibility for the officer's death — was meant to let them "know how terribly sorry I was." Powell also offered to meet with anybody who feels they might be helped by the conversation, but Ablanedo's family wasn't interested.

"I guess the question I'm asking myself is how much pain is sufficient to achieve redemption in the aftermath of irreparable damage. And I don't guess you can ever achieve redemption in this," he said.

"I hope I'm a better person now than I was then. But the truth is, most of my life I was a better person than what you know of me. Time has allowed my true character to re-emerge and show itself. That's how I understand it."

With his execution looking more and more likely, Powell said he hopes to "connect with family and loved ones outside family — let them know what they've meant to me, apologize for my departure and say goodbye."

Inmates can have up to five people at the execution chamber, where they gather in a separate room from the one holding the victim's family. Powell said he has tried to discourage family and friends from watching, fearing they "will be damaged by what they witness."

"I have encouraged everybody to stay away, to be honest. Nonetheless, there will be some there."

An indelible impact

Today, Ralph Ablanedo Drive runs more than a half-mile through a South Austin neighborhood.

The officer's name is read aloud at an annual ceremony commemorating fallen officers.

And sometime soon, a 5-foot-tall gray granite memorial will mark the site, near Live Oak Street and Travis Heights Boulevard, where Ablanedo was shot.

Powell has spent more of his life on death row than in freedom. Friends and supporters continue to rally on his behalf, primarily through the website letdavidlive.org, but his appeals are over. His lawyer, Burr, has compiled an extensive application asking the parole board for clemency, knowing that only five of 58 such petitions have been granted over the past four years.

The governor can accept or reject the recommendation of the parole board, which has not yet acted on the request.

However it ends for Powell, his case has left an indelible impact on Austin.

Carsner, the jury foreman from Powell's second trial, recalls several jurors crying and others shaking their heads as they voted by rising from their chairs.

"Nobody verbalized, 'Let's get rid of this guy; he needs to die,' or anything like that," he said. "I was voting my own thoughts about the matter, and thinking about the community and how they felt about a police officer's death."

As for Powell, Carsner said he walked away disappointed in the man.

"It looked like he really could've made something of himself. He just really screwed up, and it didn't happen to him all at once," Carsner said. "He got into drugs, selling and using more, then got interested in guns.

"He was just going down this trail, and there didn't seem to be any way back for him."

Lives interrupted

Since Powell's first conviction in 1978, Texas has executed 459 inmates, including six from Travis County.

Of the 322 inmates on death row, only five have been there longer than Powell.

If executed, Powell will be the state's longest-serving member of death row to receive lethal injection. Excell White was executed in 1999 after 24 years, three months.

clindell@statesman.com; 912-2569 tplohetski@statesman.com; 445-3605