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  Preventing a Wrongful Death
 
    The Case of Jack Outten

    This webpage provided courtesy of the Canadian Coalition Against the Death Penalty
       The information provided here was written by Jack Outten's wife.

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    If the person you love most in the world would eventually die without a
certain kind of medicine, and if there was only one doctor in the world who
had the cure -- and he wouldn't give it to you -- wouldn't you do everything
in your power to expose that doctor and force him to help you?  Wouldn't
you tell everyone who would listen?  Wouldn't you hope that someone in a
position of power would believe you enough to help you?  And wouldn't you
pray to God daily for that doctor to have enough compassion to change his
mind and give the cure?  That "doctor" is the powerful, faceless entity called
the State of Delaware, and it has the cure for my husband, Jack Outten, but
refuses to act.  The cure is freedom from a sentence of death -- indeed,
freedom from prison altogether.  The State continues to deny his freedom and hold him under a death penalty despite incontrovertible facts that somehow,
ludicrously, got lost in the criminal justice process.  In Jack's case, the
criminal justice process turned out to be no more than a three-ring circus in
which the State sought not the facts or the truth but avidly pursued what for
them would be a novelty: sentencing three men to death for one crime.  A
new feather in prosecutorial hats.  A wonderful opportunity for Delaware to
show how "tough on crime" it can be, even at the expense of an innocent man.

    I believe in Jack's innocence for a few reasons -- because of who I know
him to be and because I understand what happened and didn't happen among all the legal maneuverings that took place six years ago when he was first
wrongfully convicted and sentenced to death.  I now understand the legal
circus acts that led to a process of railroading.  It's easy enough to turn a
court of law into a circus when the defendants are unable to hire adequate
attorneys.  It's easy to do when the State of Delaware's public defenders
notoriously fall short of ABA guidelines in capital cases -- a fact openly
recognized by the State Supreme Court in a recent civil suit.  It's easy enough
to do when your public defender is the kind of attorney who is suspended
from practicing law due to misappropriating client funds.

    The following is an account of the facts that got lost in Jack's case.
Consider the facts and then ask yourself if the State of Delaware really gave
Jack due process.  Any of these facts are enough to make any reasonable
person question the validity of his conviction and penalty:

1.  Jack was convicted solely on the basis of perjured testimony, the
"witness" having admitted to lying to police, lying on the stand, changing her story many times, and stating to a private investigator that on several
occasions prior to testifying, she drank alcohol and ingested cocaine.  A
friend of this witness confirmed her admission of alcohol and drug abuse on
these occasions.  Additionally, the Court most certainly erred by relying on
personal observation when he claimed he would have known if the witness
were under the influence of any substance, as she was sitting four feet from
him.  The witness also admittedly suffers from brain damage and has great
difficulty concentrating and maintaining lucidity of thought.  (It is no wonder that even the small but important details she recounts turn out to be invalid.
For example, she claims on one occasion that Steve, one of Jack's cousins,
was in the bushes by the side of the road during the murder.  This claim is
inconsistent with photographs taken at the crime scene which clearly showed
that there were no bushes).  This witness, then -- unreliable, inconsistent, by
her own admission a perjurer under the influence of drugs and alcohol, is the
only thing that links Jack to a killing.  There is no physical, scientific, concrete or circumstantial evidence that puts Jack's hands on the murder victim.  There was no weapon with his fingerprints on it, no hair or blood or other biological material belonging to Jack on the victim.

2. The witness also told the private investigator that the only reason she named all three co-defendants as being perpetrators of the crime was because the State threatened to send her to jail for perjury if she didn't name all of them -- and she also had concerns she herself would be indicted for the crime.  That this admitted perjurer was allowed to be considered a competent witness is hard to fathom given the many egregious inconsistencies in her stories.  For example, she goes from saying "Nelson (one of Jack's cousins) had nothing to do with the murder" and then changes that story to say that Nelson had in fact struck the victim.  In another version she says Steve had nothing to do with the murder, then says he was involved.  She interchanges the actions of the crime among all three co-defendants at various times, unable to give a clear and cohesive account of events.

3.  The witness was involved romantically with both of Jack's cousins,
but not with Jack.  Indeed, she admittedly "didn't like" Jack.  She had great
reason to protect his cousins, being pregnant by one Jack's cousins at the
time, and being in great fear of Nelson's rage.

4.  Jack did not have a violent criminal record; his record consisted
primarily of thefts, but not involving violence of any kind.  Not only did Jack have a non-violent record (his m.o. was NOT to steal by force) but he was
not the one who was enraged the night of the murder.  His cousin Nelson was
clearly on a violent rampage, smashing a car window shield and punching his
girlfriend, the witness, prior to committing the homicide.  Additionally,
following the murder, Nelson immediately committed a sexual assault and
robbery.  Both Steve and Nelson had armed robbery, rape, and assault and
battery on their records.

5.  Being tied to his cousins in the trial did not allow Jack to stand out
as an individual, a kind and loving human being for whom violence was not
a way of life.  What the jury saw instead was Cerberus, the three headed dog
which guards the gates of the underworld.  Jack was denied the opportunity
to have a separate trial and so was wrongfully lumped together in the jury's
mind with his two cousins.  Original trial counsel failed to file a motion to
sever the trial AND they failed again to sever the penalty proceedings,
thereby violating Jack's rights under the sixth and fourteenth amendments of
the United States Constitution, causing Jack prejudice by allowing the jury to hear aggravating evidence introduced by the State against his co-defendants.
Most importantly, the Judge himself had suggested that the penalty
phase be severed, but this was never followed up on or even questioned
by Jack's original trial counsel.  That this suggestion was left hanging is
unconscionable and speaks to the extreme lack of diligence on the part of
trial counsel.  The fact that Nelson was apparently on a suicide mission of
seeking the death penalty, coupled with Steve's conscious choice not to
present mitigating evidence, also hurt Jack's case fatally.  What little mitigating evidence Jack's original trial counsel produced at the penalty phase was lost in the bizarre race to their deaths in which his cousins seemed to be engaged. (Note: Nelson Shelton dropped all appeals and consented to his own execution on March 17, 1995).

6.  Jack's intention was clearly NOT to commit murder that night.  In
fact, he called his then girlfriend to obtain a ride home so as not to have to
ride anymore with his cousins.  She was unable to provide transportation and
so when Jack left the bar where he was with his cousins that night, he went
with them as a means to get home.  Jack requested trial counsel to interview
and subpoena his girlfriend, the person he was speaking to on the phone at
the bar the night of the murder, to support his contention that he was apart
from his co-defendants and that he wanted a ride home, rather than intending to accompany and assist the perpetrator of the murder. 
Trial counsel failed
to do so.

7.  Jack was denied effective assistance of counsel when his attorneys
failed to cross-examine the State's "witness" aggressively enough and failed to raise concern regarding her alcohol and drug use during the trial.  Examples of the witness's perjury that were not fully exposed by trial counsel are:

    - Witness claimed that she stayed in her car in the passenger seat and
observed the murder.    From the passenger seat in the front of the car, it would have been impossible for her to view  the murder, given that the victim was prone on the ground directly in front of the car.  She  would have had to have been standing up to see what transpired.  Also, if she were not involved in the crime and were merely an observer, why was it necessary for her to take a shower that night to remove biological and other evidence from her
person?  Trial counsel did not pursue possible lines of discrediting her.

    - Witness cannot even properly identify the supposed murder weapon that
she claims Jack used to murder the victim.  She refers to a washing machine top as a "sink like object."
    How is it possible to confuse a washing machine top with a sink?  Was it a
sink?  Was it not a sink?  What was it?  Trial counsel did not adequately question the witness in this regard.

    -  Witness claims that Jack struck the victim on a particular portion of his
head between ten and twenty times with this "sink."  She is unable to clarify how anyone would be able to strike so deftly at such a particular part of the human head using a sink as a weapon.  Did it look heavy?  Did Jack supposedly have to bend his knees to use this object?  Did he struggle with
    the object?  How, specifically, did he supposedly carry this act out?
Witness repeatedly answers "I don't know" to various questions, yet there is no follow-through by trial counsel to her apparent not knowing.

    -  It is interesting and telling that the witness can say in great detail what
Nelson did that night,  but she cannot apply the same level of detail to Jack in terms of how the crime was committed.
    Again, trial counsel did not properly attempt to cross-examine the witness.

    -Witness testified that Jack cashed a check in her presence at a particular
liquor store, a detail  important to other of the witness's claims.  Jack implored his counsel to disprove this by simple investigation, including the following: interviewing the actual liquor store clerk who cashed the check at a location other than where the witness said it had been cashed, a subpoena to obtain the canceled check, and production of the store's security videotape.
Counsel failed to do any and all of this and the witness's testimony was left unchallenged.

    -  Witness told Jack's then girlfriend that Jack did not commit the murder.
This information was not presented to the jury.

8.  The Prosecutor, in closing arguments, said that Jack lacked remorse for his actions.   Because Jack wasn't allowed to talk about the circumstances of the crime, it follows that it was reasonable not to discuss the issue of remorse.  (If you didn't do the crime, you wouldn't feel or express remorse).  This statement by the prosecutor was PREJUDICIAL.

9.  Jack was DENIED the opportunity to tell his story to the jury, despite his desire to do so.  His lawyers would not allow him to take the stand, afraid that his history of theft would do him damage.  However, the jury was already aware of his theft history -- and given the fact that his history
did not include violence, there is no reason to believe the jury would have
discounted his testimony.  In fact, hearing Jack speak about the crime events
may have helped distinguish him from his co-defendants and would have
provided the jury with an arguably more coherent and consistent version of
the crime compared with that of the State's "witness."  Had the perjury of the
State's witness been shown to the jury, they might have reached a different
conclusion.  Had Jack been able to confront her testimony, the jury would
have had a more reasonable chance of making an informed decision about
the events of the crime.

10.  There was no definable defense strategy in the case of Jack
Outten other than to hope he looked better than his cousins. There was
no defense strategy specifically tailored to Jack.  Original trial counsel failed
to investigate and research all possible defenses.  Furthermore, in the penalty
phase, trial counsel violated Jack's rights under the sixth and fourteenth
amendments of the United States Constitution by failing to investigate the
availability of witnesses.  Jack gave them a list of twenty-four witnesses.  Trial
counsel told Jack that the trial had gone on long enough and they didn't want
to "bore" the jury any longer.  They also failed to investigate and produce
psychiatric evaluations on behalf of Jack.  In effect, by these sins of omission
they said to a jury who had just found him guilty "we know you think Jack is
guilty of a a horrendous murder, but he's a really nice guy."  This is hardly a
proper defense at the penalty phase when you're staring the possibility of the
death penalty in the face.

    I can tell you who Jack is and I can tell you that there is ample evidence of
his positive qualities before he became embroiled in this horrible circus act of
a trial.  Jack held steady work as a carpenter before his imprisonment; he
held successful relationships and helped former girlfriends parent their
children (not fathered by Jack); and competently and lovingly fathered a child
himself.  He reconciled with his abusive father prior to his father's death from
cancer, moving back in with his father for the express purpose of caring for
him.  Jack nursed his father with compassion and was profoundly distraught
at the time of his death.  He had finally found peace with his father -- a goal
he consciously worked toward -- only to lose him.

    It is indisputable that Jack had a record of theft when he walked into the
courtroom six years ago.  The prosecution would like you to believe that
because of his theft record he was such a hardened criminal that he was
capable of murder.  Whatever his past record of theft, Jack did not and could
not commit murder.  He is not someone who harbors murderous impulses or
seeks to act on them.  He never has and he never will.  He has come to
understand his past stealing behavior.  He understands the link between the
emotional deprivation he suffered and his acts of theft and has taken full
responsibility for how he used to manifest the emotional pain of his past.  For
all the abuse he suffered as a child, he always retained a strong sense of
compassion for others.  He sought out and gave love.  He raised his son with
that same love and compassion, vowing never to repeat what his father had
done to him.  He understand, as he always has, that what matters is the
quality of relationships, the nurturing give and take that make up those relationships.

    Jack is someone who cares profoundly about the well-being of others,
especially those closest to him.  Since he's been in prison, I've known of
times when he has helped others around him, giving them articles of clothing
and shoes that they might need.  And then there is the way he loves and treats
me, his wife.  The popular image of a criminal tells us that they are just out to
use others, that they will use any means necessary to threaten or control
especially their women on the outside.  Nothing could be farther from the
truth with Jack.  This is a man who supports my sense of self, who has never
once threatened me in any kind of way, who respects my independence, and
fosters my emotional and spiritual growth.  I have never experienced the
depth of respect that Jack shows me in any other man.  I have never had the
privilege, until now, of understanding how love from a soul mate builds up
and maintains spiritual strength. It is a joy and a profound blessing to be with Jack.

    I want Jack to stay alive.  I want Jack to be released from prison.  I want
someone in a position of power to consider his case -- no matter how briefly
or minimally -- and to lend whatever support possible.  Jack needs your
help.  His son and his mother need your help.  And so do I.  I have to believe
that the faceless entity known as the State will have to provide the cure for
this situation: vindication and release.

To help, please contact abolish@dmv.com

and/or:

Charles J. Slanina, Esquire
Tybout, Redfearn & Pell
300 Delaware Ave., Ste. 1100
Wilmington, DE 19801
(302)658-6901
 

William W. Erhart, Esquire
300 Delaware Avenue
Ste 1130, PO Box 234
Wilmington, DE 19899-0234
(302)651-0113
  


Write to Jack Outten:

  Jack Outten #180640
D-U-6, M.S.U.
Delaware Correctional Center
Smyrna, DE 19977



                    Living with Death Row  by Jack Outten's wife.

There’s never been anything more difficult to speak about than this. I try to avoid putting feelings into words, mostly because there are only a few people I can tell and I’m conscious of not leaning on them too much. It’s painful for them, too, to watch me go through this. These are people who’ve seen me get through tremendously difficult times. But anything I’ve had to
endure -- surviving the suicide of a friend, having been the victim of a vicious homicide attempt, nearly losing my life to grief on the streets of Madrid -- all of that was easier than this: having a loved one on death row.

I want to talk about it but then again I don’t. Every day I grapple with the reality and every day I distract myself in any way possible. I’ve looked at every angle of this phenomenon called the death penalty and I’m sick of it and sick because of it. I’d rather shut down, but I have to pick my head up and keep looking for any signs of hope. I have to because the alternative is to sink into numbness and internal death. I have to because my husband needs me to stay alert and functioning. I have to because of all the voices that speak about the death penalty, very few of them come from those of us who live with this pain. Usually those of us with loved ones on death row stay silent, afraid of people knowing about us. Afraid of being branded lunatics,
bleeding hearts, emotional wrecks.

For me, writing this article is a way of facing the stigma, the seemingly automatic response from people who can’t imagine that you could be anything other than a lunatic, bleeding heart or emotional wreck if you’re married to a death row inmate. I’ve heard it all: you must be a lonely person; you must be afraid of really getting married; you must be afraid of intimacy. (As if that’s it, that’s all there is to it. It couldn’t possibly have anything to do with who my husband is as a person, his warmth, integrity, and depth of spirit). I can’t be any more "psychologized" over this issue, truly. I also know I can’t afford to worry anymore about who will think what of me because they know I’m married to a death row inmate. I’ve come to the conclusion that if people automatically judge me based on my husband’s status in society, then that’s their failure.

Primarily, though, writing and speaking up is my way of adding another much needed voice to all of the dialogue about the death penalty. Lawmakers talk about reasons for and against the death penalty; politicians usually talk about it as if it’s the only means of being "tough on crime"; victims of crime talk about it; judges, lawyers, activists, reporters... We hear a lot
from the media about the inmate’s guilt or innocence, the atrocious events and details of the crime, and the impact on the victim’s family. It is horrible to be a victim or the loved one of a victim. I’ve been the victim of horrendous violence in my life time and I can tell you that the urge to retaliate is all-engulfing. I can also tell you that it is possible to arrive at a point of forgiveness and healing. I know of others, the family members of murder victims, who have been able to do the work of healing. But mostly we hear about the revenge-seekers for whom a thousand executions will never quell their pain. I hope that even they can recognize that the pain of loss is the pain of loss regardless of the source. Whether your child is murdered or your husband is executed amounts to only one thing: pain. There’s no getting around it.  Unspeakable, ongoing, wrenching pain.

I’m here to talk about that pain from my perspective. I just want you to hear my voice and to understand what it means to live with the death sentence. Not to gain your pity. That means nothing to me anymore. I knew when I first took my husband’s hand that this would be a long, difficult, pitiless road. I could have turned away and told him this would be too much. I can only say that my decision to stay with him has brought tremendous joy and growth to both of us. I refuse to walk away from that joy on account of the suffering that comes with the death penalty. As horrible as this suffering is for both of us, to be without each other’s love in this whole death penalty maze would be worse. It would be like refusing to dive for pearls just because the water all around is murky. It would be like saying no to life.

To speak of my pain immediately puts me at a loss for words. So far I’ve gotten up half a dozen times to distract myself from writing this. I don’t know where to begin to tell you what this is like so I’ll just start:

Imagine having a knife stuck in your chest permanently. You can go on living but it’s stuck there. Here are the rules: you can’t pull it out yourself and no hospital or doctor can help you. So you have to hide it. You might wear big clothes to hide the handle sticking out. You carry rags with you to mop up the blood that leaks out. You have to sit a certain way because if you
slump down too far, the blade cuts a little bit more into you. So you sit up. You smile. You carry on conversations with people who say "have a nice day" at the end. You even say it yourself. You pretend like there is no knife. It’s almost like leading a double life. By day you’re a competent whatever you are and by night you come back to the same impossible question:
how can you possibly perform emergency surgery on yourself? But you know the rules: you can’t pull out the knife.

I’ve got one of those knives. Sometimes I want to just stop everything in my life so I can deal with the knife full-time. So I can move to the state that holds my husband captive and be closer to him. But there are the ongoing questions: would that make it all worse? If I’m closer, will the sense of hopelessness only intensify? The sense of helplessness is perhaps the worst. And an oppressive sense of obsession about doing something. What can I do? What, really, can I do? I can’t talk to the judge. That’s not done. I can’t call the Governor. He can only take recommendations from the Pardon’s Board -- and we’re not at that point yet. If I could call the Governor, would he care? If he knew my husband as a whole person and if he knew all
about my husband’s case, would he still want him to die? Does he want anyone to die? How does he sign death warrants without wondering what he’s really doing? What about my husband’s court-appointed attorneys? I can barely talk to them. They’re busy. I’m afraid that to them I may very well seem like a lunatic running around with a knife stuck in my chest, almost quite literally a bleeding heart. I don’t know any high-profile, prominent attorneys and if I did would they get involved? I’m hoping it would suit their purposes to do so, that by fighting a wrongful conviction and sentence maybe they could benefit from the press. Even if that were their only motivation, surely it would help. Some very famous people stand in opposition to the death penalty, but few want to publicly support a real-live inmate. Again I feel the blade. Something, someone, anything has got to help.

All I can do is hold my husband’s hand at our weekly visits. I can kiss him for about 20 seconds of that hour-long visit. I can make him laugh sometimes. I can write articles like this. But mostly I can wait and pray. And not get enough sleep. Or get far too much sleep. And have stomach pains. And mentally fight the fear of death. And fight off the nightmares about execution. And change the channel when anything about execution comes on t.v. And fight the sense of being a moving target for Death. And carry on the great battle between maintaining hope and facing the reality: my husband could die. Any of our husbands, wives, mothers, fathers could die at any time. But knowing that it is being arranged all the time, even as I write this, is excruciating.

All of this takes its toll. I wonder if my physical self will hold out. Will my lungs keep working tomorrow or have I already smoked too many cigarettes? Will my lips, mouth, head, and neck stop working? Will something have to be cut away from my body because something will go bad, give in, give up? Will my heart be the first to go? My heart being so close to the blade....

I have to remind myself: these fears are a normal response to an abnormal situation. Nothing could be more abnormal or perverse than the conscious, deliberate attempt to kill a human life. Some faceless entity, a state, is planning on doing just that, the very thing they claim to abhor. They want to kill the person I love most in this world. The person for whom I hold all
the passion in the world. When I drive through the state that wants to kill him and I look into the faces of the people that make up that state, I think: if they knew what I know about my husband’s case, they would want to stop his execution.

I can’t talk anymore now. I’ve said all of this because I believe that it needs to be heard by lawmakers, attorneys, judges, politicians, the general public. What happens to those of us who live with the death penalty matters. What happens to me because of this matters. What happens to my husband’s mother, his siblings, his six year old son matters. The pain we endure every day because of the death penalty is no less valid than the pain the victim’s
family feels. Murder is murder. Death is death. Pain is pain. There is no getting around that. It’s like having a knife stuck in your chest. And now you know the rules.


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Last updated December 24, 2010  Canadian Coalition Against the Death Penalty
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