Published: November 04, 2009 11:15 am      

Bible plays role in Texas execution case

HUNTSVILLE, Texas (AP) — One witness who saw 64-year-old Joe Collins being beaten over the head by a rifle-swinging assailant compared it to someone getting pummeled with an ax or a golf club. Lawyers for his convicted attacker complained that jurors improperly viewed the weapon as a biblical iron rod.

Collins was hit so severely and so many times — and also was shot five times — he was nearly unrecognizable when a neighbor found him dead in the front yard of his rural eastern Texas home about 20 miles north of Nacogdoches.

Khristian Oliver, 32, convicted of the 1998 slaying during a burglary of Collins’ home, was set to die Thursday evening. He would be the 20th inmate executed this year in Texas.

Rebuffed in the courts, Oliver’s attorneys asked Gov. Rick Perry to grant him a 30-day reprieve.

Unsuccessful appeals, including a challenge refused earlier this year by the U.S. Supreme Court, argued that Oliver’s constitutional rights were violated by jurors who may have consulted a Bible during deliberations.

“The issue in this case is not the facts of the case and not the death worthiness of the defendant,” Tim James, one of the prosecutors at Oliver’s 1999 trial, said this week. “We proved up some 19 other offenses. The issue was whether a Bible was in the jury room and whether jurors were influenced.”

Defense attorneys interviewing jurors after Oliver’s capital murder trial discovered that jurors had had Bibles with them during punishment deliberations and may have reviewed a biblical passage stating that a murderer who used an iron object to kill “shall surely be put to death,” according to a verse in Chapter 35 of Numbers. Some versions of the Bible refer to an “iron rod” as the weapon, which Oliver’s lawyers said could be likened to the rifle used to kill Collins.

State and federal courts upheld Oliver’s death sentence despite testimony at a hearing that some jurors consulted the passage.

In his letter this week to Perry, Oliver’s attorney, David Dow, said the Nacogdoches County jury “was improperly influenced, and a reprieve is required to correct that improper influence.”

“It is troubling because if jurors consult the Bible, they are consulting a legal authority that is inconsistent with Texas law,” Dow said.

Jurors who testified at a hearing gave differing accounts, ranging from one Bible to several being present. One testified they had them because they went to Bible study after court proceedings. Another said any reading from the books came after they reached a decision. A third said the reading of Scripture was intended to make jurors feel better about their decision.

The 5th U.S. Circuit Court of Appeals said evidence was contradictory on whether jurors consulted the Bible before or after deliberations and that several jurors testified the Bible “was not a focus of their discussions.”

Jurors brought the Bibles on their own without knowledge of the trial judge, the appeals court found.

Collins went out to pick up dinner on March 17, 1998, and returned to find Oliver, then 20, and 16-year-old Benny Rubalcaba inside his home. Rubalcaba’s 15-year-old brother, Lonny, and Oliver’s girlfriend were outside waiting in a pickup truck.

As the two intruders tried to run away, evidence showed that Collins got a rifle and shot Benny Rubalcaba in the leg. Oliver fired his pistol at Collins, then grabbed the man’s rifle and beat him with it.

One of the teenagers testified that he saw Oliver swinging the rifle at Collins, who also was shot. Evidence showed that at least two of the five shots were fired while Collins was on his back on the ground outside his house.

Rubalcaba, taken by friends to a hospital, told police about the attack. Oliver was arrested in Houston with his girlfriend, Sonya Reed. She received 99 years in prison. Benny Rubalcaba got five years and his brother 10 years. They are now free.

Dow said the sentences were inequitable, that Oliver denied participating in the beating and that a reprieve was warranted to test the rifle for DNA samples to determine if someone other than Oliver handled it during the beating.

Testimony showed that Oliver was responsible for numerous burglaries and thefts over a year-and-a-half period that culminated with Collins’ slaying. Among the crimes, many in the Waco area, was the theft of a large fishing boat, a carjacking and shooting at a janitor and security guard during an attempted break-in at Waco High School.