Texas' Confusing Jury Instructions Misled A Juror Into Voting For This Man's Death Sentence

In 1991, Brent Brewer was sentenced to death for fatally stabbing Robert Laminack during a robbery. Sixteen years later, the Supreme Court vacated his sentence, finding that jurors had not been allowed to adequately consider evidence of Brewer’s abusive childhood and his mental health and addiction struggles.

Michele Douglas, one of the jurors in Brewer’s 2009 resentencing case, didn’t think Brewer intended to kill Laminack and she didn’t want to sentence him to death. “It seemed to me that he was trying to steal a truck and things simply got out of hand, with a tragic outcome,” she wrote in a Houston Chronicle op-ed on Friday. “I also did not believe that Brent would be dangerous in prison. For these reasons, I felt a life sentence was warranted. At least one of my fellow jurors agreed.”

The case took place in Texas, where jurors are not directly asked whether to sentence someone to death. Instead the jury must determine how to answer a series of yes or no questions, including whether the defendant will pose a future danger to society. Ten of the 12 jurors must agree with any answer that would lead to a life sentence, while answers that lead to the death penalty must be unanimous.

Left unsaid in these complicated instructions is that the defendant receives a life sentence if the jury is deadlocked — meaning any one holdout juror can block a death sentence. But the law explicitly forbids jurors from being told they have this power: The judge, defense lawyer and prosecutors “may not inform a juror or a prospective juror of the effect of a failure of a jury to agree on issues,” the law reads. As a result, unless jurors come in with an advanced understanding of Texas’ criminal legal system, they will be unaware that they, on their own, can prevent a death sentence from being imposed.

This is what happened to Douglas. “Because of a deeply misleading aspect of Texas law, we were not told that if any one juror voted for life, that would be Brent’s sentence,” she wrote. “The way the jury instructions read, it seemed like at least 10 people had to agree on a life sentence.”

“Believing — incorrectly — that my vote was meaningless, I acquiesced in the majority’s death penalty verdict. I cried when it was read in court. I was haunted afterwards,” Douglas wrote. When she later spoke with Brewer’s post-conviction lawyers and learned that she, alone, could have blocked the death sentence, she felt “mislead and cheated,” she wrote in a 2012 affidavit.

Texas officials plan to execute Brewer on Thursday unless he prevails in pending litigation or receives clemency. In her op-ed, Douglas urged the Texas Board of Pardons and Parole and Gov. Greg Abbott (R) to commute Brewer’s sentence “to the life sentence that should have been the outcome of his trial.”

Junk Science

Like most people on death row, Brewer experienced neglect, poverty and abuse throughout his childhood. When he was born, his mother had recently fled an abusive relationship with Brewer’s father. After his parents reconnected, Brewer’s father beat him “several times a month, sometimes leaving bruises all over Brent’s face,” according to his commutation application. The violence culminated in his late teens when, while trying to protect his mother from his father, he hit his father in the head with a broom. His father threatened to kill him and he went to live with his grandmother.

Brewer used drugs and alcohol to cope with his depression and was involuntarily hospitalized after his grandmother found a suicide note. Shortly after his release, Brewer, then 19 years old, and his girlfriend asked Laminack for a ride to a Salvation Army. Once in the car, Brewer stabbed Laminack in the neck while demanding his wallet. Laminack turned over the wallet and died from his wounds.

At his first trial, the state called forensic psychiatrist Richard Coons, who, despite never meeting Brewer, predicted that he would likely join a gang in prison and present a long-term danger to society. Brewer was convicted and sentenced to death.

The state called Coons again as a witness in Brewer’s second trial. By that point, Brewer had 19 years of documented good conduct in prison. Nonetheless, Coons — who still had not met Brewer — testified that “violence is okay with him” and “doesn’t seem to bother him.” Coons dismissed Brewer’s good conduct record, claiming that most prison violence goes unreported.

Douglas, the juror, was unconvinced by Coons “because he didn’t seem to have much to base his opinion on, certainly nothing objective,” she wrote in a 2012 affidavit. But believing she was powerless to prevent a death sentence, she “quit fighting and agreed to make a unanimous verdict,” she wrote.

Shortly after Brewer’s second trial, Texas’ highest criminal court found that Coons should not have been allowed to testify in a separate case because his claims were unreliable and unscientific. Coons “forthrightly stated that ‘he does it his way’ with his own methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate,” the court noted in its opinion.

The state has not used Coons as an expert for predicting future dangerousness since that opinion, according to Brewer’s commutation application. But Texas’ Court of Criminal Appeals held that Brewer’s lawyers had not properly objected to the issue during the resentencing hearing and blocked him from litigating it on appeal. Brewer filed twomotions last week asking the court to stay his execution to allow for the consideration of evidence that his death sentence was the result of false testimony by Coons.

‘I Am Sorry For What I Did’

The death verdict weighed heavily on Douglas. Shortly after the trial, she wrote Brewer a letter apologizing for the outcome. He wrote back and the two developed a friendship, Douglas wrote in the Houston Chronicle op-ed. “With Brent’s encouragement, I decided to channel my confusion and anger over this death sentence into action,” she wrote, describing how she earned her paralegal certificate, associate’s degree and bachelor’s degree in criminal justice.

Texas lawmakers have repeatedly introduced legislation to clarify the state’s confusing jury instruction language in death penalty cases. Such legislation passed the Texas state House with broad bipartisan support in 2019, 2021 and 2023, but has never cleared the state Senate.

“In a matter of life and death, the least we can do is provide jury instructions that are clear and don’t lead to confusion amongst jurors,” bill sponsor state Rep. Joe Moody (D) tweeted last week in response to Douglas’ op-ed about her confusion over the jury instructions. “Seems simple enough, but apparently not to the other chamber.”

For much of Brewer’s incarceration, he had no access to educational or rehabilitative programming inside the highly restrictive death row unit. In 2021, the Texas Department of Criminal Justice launched a faith-based program for people on death row. The 18-month program consists of lectures, readings, homework assignments and group conversations. Brewer joined the program as soon as he was approved last year and continued his studies even after receiving his execution date.

The narrative for people on death row, Brewer said in a video recently recorded by his legal team, “is that we’re not fixable, we’re not teachable, that we’re, legally speaking, we’re throwaways.” Participating in the faith-based program has given him a sense of purpose, he said.

In the video, Brewer spoke about the guilt he felt after killing Laminack. “I sobered up in the county jail and realized I had done something that I cannot undo and I had to live with that every day,” he said. “Words are kind of small when you’ve taken someone’s life, you know, when someone is permanently gone like that. But I am sorry for what I did.”

“I don’t even know if they want to hear that but that’s something I’d like to tell them personally, even if it’s just an advocate of theirs, a stand-in, I’d like them to know that,” Brewer continued, choking back tears. “Even if it doesn’t change the outcome, at least they get to hear it before I go.”