David Oliver Cruz, 33, was executed by lethal injection on 9 August in Huntsville, Texas for the murder of a 24-year-old woman he abducted and raped.
In August 1988, Kelly Elizabeth Donovan, a senior airman stationed at Kelly Air Force Base in San Antonio, left the base to take a walk. She was abducted by Cruz, then 21, and Jerry Daren Kemplin, also 21. Cruz and Kemplin had both been drinking and using LSD. They drove Donovan to an isolated area. According to court testimony, Cruz repeatedly raped Donovan while Kemplin stayed in the car. Then, as Donovan lay on the ground crying, Cruz told Kemplin, "The last thing I need to do is go to jail for rape." Cruz stabbed the woman 20 times until she was dead. He and Kemplin left her body alongside the road.
In the ensuing days, Cruz told several people what he had done. When he learned that the police were looking for him, he called them and confessed and gave blood and saliva samples that tied him to the crime.
Ten days before Donovan's murder, Cruz was found guilty of resisting arrest and was sentenced to five days in jail. Details about the reason for the arrest were not available.
In different IQ tests presented during his trial and appeals, Cruz scored 64 and 76. A person who scores below 70 is generally considered to be mentally retarded. Last year, the Texas legislature rejected a bill that would prohibit the execution of a mentally retarded person. The bill's sponsor said he would propose the bill again in the next session of the legislature. Cruz's lawyer asked the Texas Board of Pardons and Paroles for a stay of execution, in hopes that the bill would be proposed again and passed into law, possibly saving his client's life. Cruz's appellate lawyer also contended that the trial lawyer did not adequately inform the jury of the extent of Cruz's mental impairment.
The U.S. Supreme Court ruled in 1998 that the execution of a mentally retarded person did not violate the Eighth Amendment's prohibition against cruel and unusual punishment. The U.S. Fifth Circuit Court of Appeals rejected Cruz's claim that his death sentence was unconstitutional. Prosecutors noted that the jury was aware of Cruz's mental capacities and it was their decision to impose the death sentence. And, in a surprise move on the day before his execution, prosecutors presented an IQ test Cruz took when entering prison, on which he scored 83.
Current Texas law prohibits a mentally incompetent person from being executed, which means they must be able to understand that they are going to be executed and must understand the reason.
In a tearful death row interview last week, Cruz said "I know I was wrong." "I feel real bad about it," he said. There's nothing I can do to change it, bring that person back." He added, "Keep me locked up, but don't kill me. I know I could help people." He then put his head in his hands and wept. "I'm not ready to die," he said.
The Texas Board of Pardons and Paroles denied Cruz's request for a stay, by an 18-0 vote. On Wednesday, the U.S. Supreme Court rejected his appeal by a 6-3 vote. Lieutenant Governor Rick Perry, who was acting governor Wednesday night because Gov. George W. Bush was out of the state, declined to grant Cruz an emergency 30-day stay.
Cruz was sobbing and teary-eyed during his last statement, which went as follows: "First of all, I want to apologize to the family of Kelly Elizabeth Donovan. I'm sorry for what I did to her twelve years ago. I wish they could forgive me for what I did. I am sorry. I'm sorry for hurting my family; I'm sorry for hurting my friends. Please forgive me. Take me home, Jesus, I'm ready. I love you all." As the drugs began to take effect, a tear came from his right eye and ran down the side of his face. He was pronounced dead at 6:50 p.m.
Cruz's execution began at about 6:30 p.m. because another prisoner, Brian Roberson, was being executed at the customary 6:00 p.m. time. Execution dates are set by local district judges and, as a result, two executions sometimes happen to be scheduled for the same day. Multiple executions are carried out in the same chamber and on the same gurney, although new sheets, needles, and tubing are used each time.
Jerry Kemplin accepted a plea bargain in exchange for his testimony against Cruz. He is serving a 65-year sentence for murder and will be eligible for parole in 2004.
By David Carson. Posted on 10 August 2000.
Sources: Texas Department of Criminal Justice, Associated Press, Dallas Morning News, Houston Chronicle, Huntsville Item, New York Times.