For this Texas inmate, the wheels of justice nearly came off

Author: Arnold Garcia Jr.
Date Published: 04/18/2004

Jim Tenny is an admitted killer. He testified in excruciating detail about ending Joyce Mulvey’s life on a May night in 1997: ”When I shoved that knife in her, I shoved it with every bit of power I had. . . . I fell on top of her, basically pulling the knife to the side, and I could feel it twisting inside of her as I was pushing it and my weight was going down on it. It was going sideways, but it was in as far as it would go.” Tenny was convicted in May 1999 and sentenced to 65 years in the Texas prison system for killing his common-law wife. So, that’s that, right? He did it and got what was coming to him.

Not necessarily. Because life isn’t black and white, neither is the law. The Tenny case is a great example of how the black and white template can be a pattern for an injustice.

Tenny literally had to make a federal case out of it before he could get someone to hear that his lawyer gave poor advice, denying him an effective defense.

Sure, he killed Mulvey, but if you listen to his version of events, he didn’t have much choice. The way Tenny tells it, Mulvey was mad that he was moving out of the double-wide mobile home they shared in Blanco so his son could come live with him. She was so mad that she told acquaintances and co-workers that she was going to kill him, according to court documents.

On the night of their last fight, Tenny said Mulvey sloshed gasoline on him and tried to set him afire. He fought to keep her away and called 9-11. The call ended when Mulvey hit Tenny over the head with a platter. Mulvey then attacked with a knife, stabbing him in the chest and causing his lung to collapse.

Dr. William Penn, a friend of Tenny’s, visited the defendant in the hospital and testified: ”His right eye was black and blue, his right ear was cut, and there was a tube coming out of his chest emptying blood from the collapsed lung into a bag on the floor. It was clear that there had been a violent struggle in which (Tenny) had nearly lost his life.”

Yet Penn and other witnesses who could have testified about Mulvey’s aggressive behavior and threatening comments weren’t called at trial, denying Tenny a self-defense argument that usually plays well in Texas courts. Had Tenny’s lawyer pursued self-defense, who knows what would have happened — maybe acquittal or perhaps a lighter sentence.

The Texas Court of Criminal Appeals affirmed Tenny’s conviction. The defendant then turned to the federal courts. When U.S. Magistrate Stephen Cappelle agreed to hear Tenny out, he appointed a lawyer from the high dollar Vinson & Elkins law firm to represent him. That was the good news — Tenny got big bucks counsel for nothing. The bad news was that the appointee is a patent lawyer who thought Tenny was guilty.

The more Bill Schuurman dug into the case, though, the more appalled he became at the poor defense Tenny had received at trial. He enlisted the aid of Dave Sheppard, an Austin lawyer with extensive experience in criminal cases. Schuurman also had help from three other lawyers in his own firm.

This isn’t television, where justice prevails at the end of an hour. This was a long slog through a thicket of state and federal law, and the outcome was far from certain. Penn and other witnesses who could have testified at the original trial were finally heard at a federal appellate proceeding.

Though Tenny didn’t win all points in his petition, his plea of ineffective counsel prevailed. In his ruling, U.S. District Judge Sam Sparks had some pointed words for the Texas Court of Criminal Appeals: ”It bears repeating the Texas Court of Criminal Appeals denied Tenny’s application without written order based on irrelevant skeletal finding of the trial court without a hearing. . . . (This court) is persuaded the state habeas court’s result was based on an unreasonable determination of the facts in light of the evidence and unreasonably applied clearly established federal law regarding Tenny’s claim of ineffective counsel.”

For those who believe that Texas courts dispense justice efficiently and impartially, the Tenny case is a sobering counterpoint. Tenny’s bad luck at trial was only balanced by good luck on appeal. That he drew V&E, as the firm is known, was pure chance.

”What if a solo practitioner had been appointed to represent him? It was a roll of the dice,” noted David Weaver, another Vinson & Elkins lawyer who worked on the case.

What happens now? Sparks ordered in early April that Tenny be either retried or released in 90 days. Meanwhile, Tenny stays in prison.

agarcia@statesman.com; 445-3667