3 Patent Lawyers, 2 Years, 1 Prisoner

Author: Mary Alice Robbins
Date Published: 04/12/2004
Publication: Texas Lawyer

A man serving 65 years in prison for stabbing to death his common-law wife has a chance for a new trial as a result of the efforts of three patent attorneys, who spent the past two years tracking down witnesses and collecting evidence that was never presented at the man’s first trial.

On April 5, U.S. District Judge Sam Sparks of Austin ordered the state to retry James B. Tenny within 90 days or release him. Sparks found that the “ineffectiveness” of Tenny’s trial attorney, John Bennett, “clearly prejudiced Tenny’s case” in the 1999 trial in Blanco County.

“This court’s analysis reveals a reasonable probability, absent
Bennett’s obvious incompetence, the jury would have been presented with substantial and critical evidence supporting Tenny’s claim to self-defense, and the jury could well have had a reasonable doubt of guilt.” In addition, Sparks wrote, “Bennett’s deficient performance at sentencing served to prejudice Tenny as the mitigating evidence available
to be presented would have in reasonable probability resulted in a significantly less harsh sentence.”

“As most criminal lawyers will tell you, they do the best they can,” Bennett says. “If they did something wrong, they hope it’s brought up and looked at.”

He says he hopes that Tenny gets a new trial. “I wish the best for him,” Bennett says.

Bennett, a San Marcos solo, declines further comment because Tenny is a former client. “If he’s going to get a new trial, I could not comment on anything; it could have an effect on his case,” Bennett says.

Willem G. Schuurman, lead counsel for Tenny in the federal
habeas corpus proceeding, says he’s “overjoyed” by Sparks’ decision. Schuurman, a partner in Vinson & Elkins and head of the firm’s appellate section in Austin, says he always gets personally involved with his clients.

“But this is very different when you represent someone and you know you can make a difference between him spending his life in [prison] or getting out,” Schuurman says.

Avelyn Broughton, a V&E associate who joined Schuurman and David Weaver, another partner in the firm, in representing Tenny, says a 65-year sentence is, in effect, the death penalty because Tenny will die in prison unless he gets a new trial.

“That’s one of the things that got us all tied up in this and to pour our hearts into it,” Broughton says. “Seeing what this would mean to [Tenny] really pulls at your heart strings.”

In his order in Tenny v. Cockrell, Sparks said that Bennett
“failed to investigate or otherwise assess the probative value
of testimony” offered by two witnesses that the victim, Joyce
Mulvey, was “absolutely out of control” on the day of her death and had said she would kill Tenny and burn the house down if any of his sons came to live with them. According to the order, Tenny and Mulvey had been arguing over a several-day period preceding and on the day of Mulvey’s death because Tenny wanted to bring one of his sons to live in the mobile home that Tenny and Mulvey shared. Sparks said in the order that Bennett also failed to call witnesses or develop relevant testimony of certain witnesses he did call to support Tenny’s claim that he acted in self defense when he stabbed Mulvey and that Mulvey had poked him with a knife three days before she died in 1997.

According to Sparks’ order, among the potential witnesses
who weren’t called to testify but could have offered evidence
supporting Tenny’s self-defense claim were two Christ of the
Hills Monastery monks who, at the time of the trial, were under indictment on indecency-with-a-child charges. Although Bennett claimed in a November 2002 evidentiary hearing that his fears that bringing the monastery “taint” into Tenny’s trial justified his decision not to call the monks as witnesses, Bennett failed to consider available mechanisms