Derrick Sean O’Brien was convicted of capital murder and sentenced to death for the 1993 rape and murder of two teenage girls, Jennifer Entman, 14, and Elizabeth Pena, 16, in Houston.  On the night of June 24, Entman and Pena were walking home from a friend’s house when O’Brien, along with five others, attacked the two high school sophomores.  According to court documents, the attack was part of a gang initiation.  The bodies of the two girls remained undiscovered until police received an anonymous tip from the brother of one of O’Brien’s accomplices four days after the attack.  O’Brien was arrested at his home the following day.  O’Brien’s trial began on April 4, 1994 and he was found guilty of capital murder only two days later.  On April 9, 1994, O’Brien was sentenced to death.

While there is no question as to O’Brien’s guilt, there are circumstances surrounding the punishment phase of O’Brien’s trial that do warrant closer consideration.  For one, O’Brien’s defense counsel presented only one witness.  In the punishment phase of a death penalty trial a jury is asked to weigh mitigating factors, such as certain aspects of a defendant’s character or background, including moral culpability, as a basis for a sentence less than death.  The one witness brought to testify on O’Brien’s behalf was a records custodian employed by the Harris County Jail who testified that there were no disciplinary actions taken again O’Brien during his time at the jail.  In other words, O’Brien’s counsel did not call to the stand family, friends of the family, or anyone else that could have testified on O’Brien’s behalf.

The ability of the jury to properly weigh mitigating factors against the potential sentence of death is further called into question by the fact that the prosecutor repeatedly told the jury that there must be a connection between the mitigating evidence and the crime.  Contrary to the prosecutor’s statements otherwise, the Supreme Court has set a “low threshold of mitigating circumstances.” Therefore, both the fact that O’Brien was 18 at the time of the crime, as well as evidence regarding his good behavior while in jail, are relevant mitigating factors.  Such comments were made by the prosecutor in both the voir dire examination of the jury, as well as during the prosecutor’s closing arguments.  During closing arguments the prosecutor stated:

Then you move on to [Special Issue] No. 3, then you look at the Charge. And it tells you to ask yourself if there's anything mitigating. And we talked about what does mitigating mean.... What, if anything, is mitigating about him that you heard? The only thing that I can possibly think of is that the guy's learning disabled in arithmetic, he can't add... It doesn't take a rocket scientist to figure out if you can't add that doesn't give you the right to go out and kill ... other people. So there's not anything at all that you heard from any witness that is mitigating.

Thus, the proper procedural instructions given to the jury by the judge regarding mitigating evidence were negated by the prosecutor’s comments.  In other words, it is likely that the jury, believing the prosecutor’s statement that there must be a connection between the mitigating evidence and the crime, did not properly weigh the mitigating evidence that they were presented with and ultimately decided upon a sentence that they would not have otherwise.