September-October 2009

A new punishment ­hearing for a mass ­murderer

Dallas prosecutors recently retried a defendant whose death sentence was overturned on appeal. Here’s how they tracked down witnesses and prepared for a case decided 18 years prior.

Patrick Kirlin

Assistant Criminal District Attorney in Dallas County

In the late night hours of Saturday, August 19, 1989, Mark Robertson walked approximately three miles with a loaded Smith and Wesson revolver to “visit” Sean Hill, a friend who lived with his grandmother, Edna Brau, in an affluent part of North Dallas. When Robertson arrived at the house, Sean was fishing, kneeling at the edge of a creek that flowed through the backyard. Robertson pulled out the revolver and fired a single gunshot into the back of Sean’s head, and he slumped over into the creek.

Robertson then went into Ms. Brau’s home where she was asleep in front of the television. Her legs were crossed at the ankles as they rested on a coffee table in front of the couch. At close range, Robertson fired another gunshot—this time right between the eyes. He covered Edna’s head with a blanket, a classic move by a murderer who intends to rummage through the victim’s house after the kill. Ultimately, Robertson stole a small amount of cash, a purse and wallet, a wristwatch, and the keys and registration papers to Edna’s Cadillac, which he drove from the crime scene.

Robertson tossed the purse into a dumpster and spent the next couple of hours at a topless bar. He then went to his apartment, where he napped for a few hours. While the bodies of Edna and Sean remained undiscovered, Robertson spent his Sunday morning hanging out at the apartment pool with a friend and smoking marijuana. After the bodies were discovered that evening, he stayed a couple of days in Dallas to watch the news story unfold. Robertson then stole $700 from his roommate and drove the Cadillac to Las Vegas.

On August 29, 10 days after the double murder, a conscientious Las Vegas patrol officer ran a routine license plate check on the Cadillac as it passed by. The car came back as stolen out of Dallas and connected to a homicide there. After some strategic planning by the Las Vegas Police Department, Robertson and a male passenger were apprehended as they drove out of a casino parking lot.

According to several seasoned Las Vegas police officers, Robertson was unbelievably calm, collected, and unbothered. He wanted to know if he was on “America’s Most Wanted.” He casually talked to the SWAT officers about how quick and good they were with the takedown because he had had no time to reach for his gun on the back floorboard. Indeed, a search of the Cadillac revealed a wooden jewelry box with a .38 revolver inside it. Ballistics testing on the revolver later determined that it was the weapon used to murder both Edna and Sean.

Robertson readily and matter-of-factly admitted appalling details of the double murder to any Las Vegas police officer who would listen, including the part where he waited until the bubbles stopped rising from Sean’s body in the creek before proceeding to his elderly victim. Dallas Police Detective Jesus Briseno flew to Las Vegas and obtained a written statement from Robertson, who again readily admitted the details of this offense. In shocking, “true crime” style, Robertson also admitted to a detective that he had robbed and killed a 7-Eleven clerk in Dallas just 10 days before committing the double murder and robbery at the Brau residence. Based on this admission, Dallas police had the .38 revolver compared with the autopsy bullet from the 19-year-old clerk, Jeffrey Saunders. The revolver that killed Jeffrey and the revolver that killed Sean and Edna were one and the same.

Before he could be brought back to Dallas to stand trial for these murders, Robertson tried unsuccessfully to escape from a Nevada jail. While awaiting trial in the Dallas County jail, Robertson set fire to a newspaper in his cell and shoved it under his door out into the walkway, creating a major disturbance and safety concern.

In February 1991, Robertson was tried for the capital murder of Edna Brau, convicted, and sentenced to death. He also pleaded guilty to murdering Sean and Jeffrey, for which he received two life sentences. But after 17 years of post-conviction litigation and six execution dates, the Court of Criminal Appeals ruled on March 12, 2008, that Robertson deserved a new punishment hearing in the capital case due to jury charge error. In short, 17 years of appeals had kept the case—and Robertson—alive long enough for him to take advantage of a change in the law. Specifically, the trial court’s jury instruction regarding mitigating evidence—which had been upheld on direct and collateral review and denied certiorari review by the United States Supreme Court—was no longer constitutionally viable after 2004. That year, the Supreme Court issued its opinion in another Dallas County death penalty case, Smith v. Texas.1 The Court of Criminal Appeals held that the Smith opinion created a new rule of law and allowed Robertson to re-assert the jury charge issue in another habeas writ, which he did, this time with success. We had to prepare for a new punishment trial.

Getting ready for trial

The victims’ family anticipated this setback, as they had maintained a close relationship with our appellate team and followed the changes in law as they developed. Nevertheless, they were rightly disappointed and angry. Robertson, an inmate who wrote fluent German and had above-average intelligence, was retroactively given the benefit of a new legal rule which, at its inception, was intended to benefit the mentally challenged. No amount of legal rhetoric could justify this turn of events to the victim’s family, particularly to the woman who had lost both her mother and her only child to Robertson’s brutal handiwork.

The punishment charge in our case on retrial would contain the “deliberateness” special issue from 1991 law along with the “future dangerousness” special issue, but in keeping with the Penry rule, the charge would also contain the current statutory language of the mitigation special issue.
Never having retried a death row inmate for punishment, I had the luxury of a great team of very dedicated attorneys and investigators who pulled together on the case. We were presented with eight storage-size boxes jammed with paperwork from this prosecution, starting with the police and crime lab reports from 1991 to everything that had accumulated during the post-conviction process. Where to start?

We went through everything in those boxes to get a good feel for our case, our victims, the defendant, and what, if anything, he had done on death row for 18 years. After reading the transcript from the original trial, we determined which of those original witnesses we needed and could track down for the punishment hearing. Because we were seeking the death penalty again, we planned to put on everything the original jury had heard.

DA investigators Hoyt Hoffman and Tonia Silva set out to locate more than 40 witnesses from so many years ago. Armed sometimes with only a name, they gave their computer databases and IT skills a workout. Through their determination and persistence, all of those witnesses were located. Several are now deceased; one key witness was not in good health and could not testify. Needless to say, there was quite a bit of “former testimony” we had to read to our jury pursuant to Rule 804(b)(1).

Additionally, our investigators subpoenaed all TDCJ records, but reviewing them produced little in the way of additional punishment evidence. There were only five or six disciplinary reports from Robertson’s years on death row, each of which dealt with the possession of various contraband, which we knew the defense would characterize as “minor” violations. (Our classification expert, though, showed that even things such as an altered coffee pot or copper wire are ingeniously used to create safety and security risks in prison.)

Countering defense ­arguments

We also knew from the previous testimony and trial records that the defense would present mitigating evidence of Robertson’s terrible drug addiction at the time of the murders, as well as his father’s physical and emotional abuse of his mother and siblings. This knowledge did not give us cause for concern, however, as it is all standard fare in death penalty cases. Given the lack of violent behavior for the last 18 years, we focused on the defense’s theory that the TDCJ records alone showed that Robertson is not a future danger because TDCJ could and would control him if he were given a life sentence.

Our presentation and argument to counter this theory was to emphasize to the jury that death row inmates are confined to their 8×10-foot single cells for 23 hours a day and only one hour for individual recreation, leaving little opportunity for violence to others. Then, we contrasted this picture of life on death row (and we did introduce photos of the death row area and individual cells) with the much less restrictive prison life in general population, where Robertson would be housed if given a life sentence.
There was only one problem with our description of life on death row. The 23-hours-a-day-lockdown policy came into existence in 1999 when death row was moved (after an inmate escape) from the Ellis Unit to its current location at the Polunsky Unit. Robertson entered death row at the Ellis Unit in 1991, when death row inmates were still work-eligible and not on lockdown, so the defense argued that Robertson was not a future danger because he never committed a single violent act even during those eight years on the Ellis Unit. Our response to this argument was simple and fact-based: Robertson is a coward who targets only the unsuspecting and defenseless—something he would not find with inmates on death row. We may have used more colorful language, but the point is obvious.

By now, it may be apparent that the “facts alone” theme was our starting and ending point. That is, our case was going to be won or lost based on the horrendous facts of this offense and the murder of Jeffrey Saunders, the 7-Eleven clerk. Our jury selection was based in large part on whether prospective jurors could answer the special issues so as to result in a death verdict based solely on the facts of the offense. Josh Healy and Ellyce Lindberg, my trial colleagues in this case, set out to find 12 jurors who could do just that. And they did: The jury returned a death sentence in a little over three hours. Talking to the jury afterwards, it was apparent that the facts of the case were the overriding factor in their decision, along with the callousness with which Robertson described the murders to the police.

We had used this callousness to our benefit during the examination of a defense expert who testified that Robertson suffered from antisocial personality disorder. The expert could only concede on cross-examination that Robertson was a sociopath/psychopath at the time of the murders because he exhibited characteristics from each category on the Hare psychopathy checklist, including callousness.2 We then argued that once a psychopath, always a psychopath—there is no cure, no magic pill, and no treatment. We argued that if Robertson received a life sentence and went into the much less-restrictive environment of the general prison population, coupled with his psychopathic personality and ability to manipulate and charm most people, he would definitely be a danger to the people who work with the general prison population. The key was drawing a clear distinction between life on death row and life in the general population.

It bears noting that parole has not been mentioned in this article. If given a life sentence, under the law in effect at the time of the offense, Robertson would be eligible for parole after serving 15 years which, of course, he had already served. Based upon the advice of Lisa Smith and Kim Schaefer, our incredible appellate attorneys on this trial team, we never mentioned parole during the trial or in closing argument. This advice was aimed at avoiding a claim on appeal that the 15-year eligibility requirement unfairly persuaded the jury to avoid a life sentence. As a trial attorney, it was difficult to see the defendant sitting in the courtroom, knowing that he was already eligible for parole if the jury gave him a life sentence. But during voir dire, both sides agreed that the judge alone would read the general law regarding parole, including that the jury cannot consider it for any reason, and this same instruction was included in the charge. Those were the only times that parole was ever mentioned.

Some factors, such as having multiple victims, made this case an easy one to retry for death, but other factors, such as an 18-year period of proven non-violence, made it one of the more difficult. In the end, our success can be attributed to a thorough and relentless investigative search for witnesses, tireless co-counsel who used the facts creatively, and conservative appellate advice to keep us well within the law. The jury heard the facts and applied the law to reach a just punishment, one we hope this time is carried out.  i


1 534 U.S. 37 (2004) (per curiam).
2 See Robert D. Hare, Psychopathy Checklist-Revised (1991).