Set for execution, death row inmate alleges legal fraud in hopes of a stay

With two days left before TaiChin Preyor's scheduled execution, his lawyers have tried just about everything to stop it. That includes alleging that his previous counsel — a disbarred California attorney and a probate and real estate lawyer who reportedly relied on Wikipedia to research Texas legal procedure — committed fraud against a federal court.

So far, they've had no luck. 

Preyor, 46, is set to be executed Thursday night for the 2004 killing of a 20-year-old San Antonio woman during a home invasion. If he doesn't receive a stay, it will be the state’s fifth execution of the year — and end the unusually long four-month lull in Texas’ death chamber.

In recent weeks, Preyor's attorneys have filed a flurry of pleas, with the Texas governor and in state and federal court. They have argued Preyor should be spared the death penalty because his original attorney overlooked an abusive childhood and because his appellate attorneys were incompetent. 

"Even if you are someone who believes that there is a role for the death penalty to play with respect to certain crimes, there has to be a baseline there that the person ... was capably and competently represented throughout all of his proceedings," said Cate Stetson, one of Preyor's current attorneys. "And that baseline clearly was not met here." 

On Monday afternoon, both the Texas Court of Criminal Appeals and a federal district court rejected Preyor's requests for a stay. Preyor will appeal now to the 5th U.S. Circuit Court of Appeals.

Texas and Bexar County have requested that the execution proceed, noting that it “has been postponed for over a year in order to accommodate [Preyor] and his attorneys, but at the expense of the victims and the state’s interest in finality.”

In court, Bexar County prosecutors accused Preyor of breaking into Jami Tackett’s apartment in the early hours of a February morning. Tackett was in bed with Jason Garza, who testified that Preyor attacked and stabbed him before he ran away to call for help. With Garza gone, Preyor stabbed Tackett multiple times, killing her. He was arrested at the scene covered in her blood.

Preyor claimed he acted in self-defense. In a statement to police, he said Tackett, who sold him drugs, had invited him over and ambushed him with Garza. Preyor said he pulled out his knife after the two began attacking him and that he didn’t intend to hurt Tackett “that bad.”

A jury was unconvinced. They found him guilty and sentenced him to death.

Preyor’s current attorneys aren’t focusing on his conviction but on his death sentence. They argue the lawyer who represented Preyor during his sentencing, Michael Gross, failed to present evidence about Preyor's abusive childhood, which they argue could have swayed a jury to give him life in prison.

“Gross failed to hire a mitigation specialist, failed to investigate known red flags regarding Preyor’s childhood, neglected to interview family members regarding Preyor’s childhood and social history, and neglected to follow up on not one, but two, medical professionals’ recommendations that Preyor be screened for mental illness or other executive-function issues affecting his capacity and judgment,” Stetson and attorney Hilary Sheard wrote in a filing to the Texas Court of Criminal Appeals last week. “The cumulative effect of these omissions was disastrous.”

But Gross said in an affidavit filed to the court that he “adequately” represented Preyor, and talked to many family members, school officials, friends and even Preyor himself, none of whom mentioned abuse. “If they had given me any such information, I would have developed that evidence and presented it as mitigation at trial,” Gross said in his affidavit.

Sheard and Stetson argue concerns about Gross' representation should have been raised during Preyor's appeals. Preyor blames this on his unusual appellate lawyers.

After becoming frustrated with Preyor's court-appointed lawyer during his post-conviction appeal, Preyor’s mother turned to Philip Jefferson, a disbarred California attorney who claimed he was retired, according to Preyor’s most recent court filing. Preyor claims Jefferson did most of the heavy lifting in the case and had Brandy Estelle, a California attorney who specialized in probate and real estate law, file documents to the court.

Estelle relied on Wikipedia to research Texas habeas procedures, Preyor alleged, and Preyor's appeals were denied in federal court.

“The federal habeas petition filed in this court ... was so abysmal that it subsequently became an exemplar, circulated among habeas attorneys, as an example of what not to do,” Preyor’s attorneys wrote.

Preyor also alleged that Estelle committed fraud against the court by hiding Jefferson’s role and requesting payment for her legal services from the appellate court, even though Preyor’s family had already paid her. 

Estelle did not respond to requests for comment for this story, and Jefferson could not be reached for comment. But on Monday afternoon, a federal court dismissed that fraud allegation, saying Estelle "competently represented" Preyor.

“There has been no showing of any attempt to defile the court, much less egregious misconduct that rises to the level of bribery or fabrication of evidence,” District Court Judge Fred Biery wrote.  

Preyor has also requested that the Texas Board of Pardons and Paroles and Texas Gov. Greg Abbott grant him clemency and commute his sentence to life in prison. The board is expected to vote on his case Tuesday afternoon, but rarely recommends relief to the governor. Abbott has not stopped an execution since taking office in 2015.

"Mr. Preyor experienced severe sexual and physical abuse as a child, but that compelling mitigation evidence has never been heard by any court," Stetson said Monday evening after the court rulings. "The appellate courts or the Governor should allow Mr. Preyor the opportunity to be represented by capable, competent, and licensed attorneys before his execution proceeds."