Dallas man gets stay of execution in '97 slayings

The order by the state Court of Criminal Appeals grants a stay of
execution for Charles Anthony Nealy, who was set to die Thursday, and
sends the case back to the Dallas trial court where he was convicted.

District Judge Janice Warder will now have to determine whether the
recantation is credible and, if so, whether the new information would
have changed the outcome of the original trial.

Mr. Nealy's appellate attorney, John Nation, said he is encouraged by
the appeals court's ruling.

"I'm very pleased with this," he said. "It's long enough for us to
have a hearing and do everything we need to do."

Mr. Nealy was convicted in September 1998 of the August 1997 robbery
and shooting deaths of two clerks at the Expressway Mart convenience
store in South Dallas. The testimony of Mr. Nealy's nephew, Memphis
Nealy, played a role in his conviction.

Although the robbery was captured on a video surveillance tape, the
image is of such poor quality that it is difficult to positively
identify the suspects on the tape. Memphis Nealy testified during the
trial that the two men were his uncle, Charles Anthony Nealy, and his
brother, Claude Nealy.

Memphis Nealy also testified that his uncle told him before the
slayings that he had a grudge against the convenience store and was
planning to rob it.

Memphis Nealy now says that he lied during the trial and that former
prosecutor George West had threatened to charge him with capital
murder if he didn't implicate the two other men.

"I didn't have no choice but to cooperate," Memphis Nealy said during
an Oct. 11 hearing on the matter.

"He backed me into a corner, you know."

Mr. West said the allegations are without merit.

"That's absurd," Mr. West said, noting that Memphis Nealy's
oppression claims conflict with police reports of how he implicated
his uncle and brother.

"He's trying to help his uncle. There's no question about his guilt."

Mr. West resigned from the district attorney's office in July 2003,
shortly after a defense attorney sought a new punishment trial for a
Dallas man sentenced to death in another case, arguing that Mr. West
failed to correct testimony he knew was inaccurate.

At the time, Mr. West said his resignation was not related to the
allegation.

Earlier that year, Mr. West was placed on a 30-day unpaid suspension
for prosecutorial misconduct. A judge at that time admonished him for
not turning over evidence in another capital murder trial.

The most recent allegations surfaced last month after prosecutors
monitoring Mr. Nealy's prison mail and his Web site in the weeks
before his execution began to suspect that he was going to try to
pressure his nephew to recant his testimony before his execution,
according to court records.

Two Dallas County district attorney investigators visited Memphis
Nealy in early October, and at that time, he told investigators that
Mr. West had threatened him but that his court testimony had been true.

During a second meeting with the investigators a week later, Memphis
Nealy watched the surveillance video again and said he did not
recognize either man in the tape. He also recanted his other
testimony that had implicated his uncle.

Prosecutors immediately notified Mr. Nealy's attorneys of the
allegations to give them time to file legal motions before the
execution date.

Even after securing a stay of execution, reversing the death penalty
conviction will not be easy.

Judge Warder has already indicated that she does not place much value
in Memphis Nealy's recent testimony. In a Nov. 1 letter to the state
Board of Pardons and Paroles, Judge Warder wrote that she believes
Charles Nealy's guilt is supported by other witnesses in his trial.

A surviving victim of the robbery identified him as one of the two
robbers who was holding a shotgun inside the store. The getaway
driver in the robbery testified that he drove Charles Nealy and
Claude Nealy to the store but did not go inside while the robbery
took place. Charles Nealy also told police that he took part in the
robbery but that he was not present when the two men were killed.

In the letter, Judge Warder said she believes Memphis Nealy's
recantation was the result of pressure from his uncle and other
relatives. While the district attorney's office immediately notified
Charles Nealy's attorneys when they learned that a witness had
recanted, prosecutors have indicated that they still believe he is
guilty and the death sentence should stand.

"He was hostile, and it was obvious to me that it was a desperate
attempt, most likely influenced by others in his family, to put off
the execution of his uncle," Judge Warder wrote.

"I am convinced beyond any reasonable doubt of the guilt of the
accused," she said. "This is a death worthy case."

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