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Dallas�In an unusual move, the normally conservative Texas Court of Criminal Appeals recently overturned two death-row cases. But the court’s move isn’t the only thing unusual about the cases. In a 6-2 decision, with one judge abstaining, the court, Texas’ highest for criminal cases, reversed Kenneth Vodochodsky’s capital murder conviction and death sentence for the 1999 ambush slaying of Atascosa County Sheriff’s Deputy Thomas Monse Jr., one of three law enforcement officers allegedly shot to death by Jeremiah Engleton, who subsequently killed himself. According to the majority opinion in Vodochodsky v. State, an 81st District Court jury found Vodochodsky guilty as a party in the murders. The criminal appeals court also reformed the death sentence of Willie Mack Modden, who has been twice convicted and sentenced to die for stabbing to death Deborah Davenport in 1984 while robbing the Lufkin, Texas, gas station where she worked. The 7-2 decision in Ex Parte Modden came after 217th District Judge David Wilson found that Modden is retarded. According to the majority opinion, written by Judge Tom Price, the criminal appeals court reversed Modden’s conviction on his initial application for habeas corpus relief in 1992, but Modden was retried that same year and again convicted and sentenced to death. In 2002, the U.S. Supreme Court held in Atkins v. Virginia that the Eighth Amendment’s “evolving standards of decency that mark the progress of a maturing society” prohibit execution of mentally retarded people. Modden is the first Texas death-row inmate whom the criminal appeals court has granted habeas corpus relief under Atkins. Michigan attorney Gregory Wiercioch, who represents Modden, said the Supreme Court stayed Modden’s execution hours before he was scheduled to die on June 11, 2002. The high court ruled in Atkins nine days later. The ruling in Modden was among a flurry of capital case opinions the criminal appeals court handed down on April 21. The court affirmed the convictions in all but two. In Vodochodsky, it ruled that the evidence presented at trial that Vodochodsky aided Engleton in the 1999 massacre of officers lured to a rural Atascosa County home was so weak as to undermine confidence in the jury’s determination. Judge Mike Keasler, who seldom sides with defendants, wrote for the majority: “Vodochodsky had the bad luck of being the friend and roommate of a man determined to kill police officers and himself.” San Antonio solo practitioner Richard Langlois, Vodochodsky’s attorney, said in an interview that his client probably was at the scene of the killings. “Mere presence and knowledge of a crime is insufficient to support a conviction for the crime,” Langlois argued in a brief he filed for Vodochodsky with the criminal appeals court.

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