Two Cases of Child Murder; Only One Faces Death Penalty


By: Criminal Houston Criminal Defense Attorney John T. Floyd and Senior Paralegal Billy Sinclair

The District Attorney’s Office in Galveston, Texas, has in recent months confronted death penalty decisions in two high profile cases involving parents brutally murdering their children. Both cases allegedly involved parents killing their children in a calculated, premeditated manner. In April 2008 the District Attorney elected not to seek the death penalty in one case but in August 2008 decided to seek the death penalty in the other. Why?


Let it be stated very firmly at the outset of this piece that we do not support the death penalty in any case under any circumstances. We are a criminal defense law firm dedicated to the preservation of life and liberty– not death. But the disparity in the decision-making by the Galveston County District Attorney’s Office in these two capital child murder cases begs scrutiny.


The first case involves Riley Ann Sawyers, a beautiful two-year-old child who became known to the nation as “Baby Grace.” The child’s biological mother, Kimberly Trenor, and her stepfather, Royce Zeigler II, were reportedly upset with the child’s manners. By the mother’s account, Riley Ann either did not know when or how to say “please” and “no sir.” So the parents decided to discipline the child. This allegedly led to a, enraged and brutal beating that killed the child. In October 2007, a fisherman found a plastic storage box floating in Galveston bay containing Riley Ann’s body, which had been wrapped in trash bags.


The second case involves Alijah Mullis whose diaper-clad three-month old body was discovered in January 2008 in an isolated area on the eastern end of Galveston Island by a couple cruising for wildlife. The child’s father, Travis Mullis, allegedly dumped the body there after repeatedly stomping on the child’s head, snuffing out its precious life. The child’s mother, Karen Kohberger, said Mullis indicated to her shortly before the child’s death that he was having flashbacks from being sexually abused as a child.


After Alijah’s battered body was discovered the police launched a nationwide manhunt for Travis who, four days later, walked into a Philadelphia police station and surrendered.  He was returned to Galveston and charged with capital murder. Karen Kohberger was arrested in February 2008 and charged with child endangerment for handing the child over to Mullis knowing he was suffering from some sort of psychological problem.


Galveston County District Attorney Kurt Sistrunk defended his decision to seek the death penalty in the Mullis case but not in the Baby Grace case. He referred to an unnamed state appeals court decision that held when a parent charged with killing his/her child does not have a history of violence, the legal requirements for the death penalty are not met.  Mullis has also been charged with taking an 8-year old girl from a mobile home and trying to entice her to take off her pants.

Texas Penal Code, Article 19.03(a)(8), provides that a person commits capital child murder when he/she knowingly and intentionally causes the death of a child less than six years of age.


Riley Ann Sawyers and Alijah Mullis were both under six years of age. The parents of Baby Grace and the father of Alijah are both charged with knowingly and intentionally causing the death of those children.


Citing the fact that the United States Supreme Court has consistently recognized that states have a legitimate and compelling interest to protect the well-being of children, the Texas Court of Criminal Appeals has said that crimes against children are among the most “morally outrageous” because they are committed against the most innocent and vulnerable in our society. Armed with that fundamental legal principle, the state’s highest court of criminal appeals found that § 19.03(a)(8) is “rationally related” to the state’s interest in protecting children and expresses our society’s moral outrage against the murder of young children. The court said that the “demarcation” line of six years of age in § 19.03(a)(8) was definitely constitutional. See: Henderson v. State, 962 S.W.3d 544, 560-63 (Tex.Crim.App. 1997).


The Court of Criminal Appeals in Black v. State, 26 S.W.3d 895 (Tex.Crim.App. 2000) reaffirmed its Henderson ruling and adding:


“By writing the law so that the intentional or knowing killing of an individual under six years of age elevates a murder to capital murder, the legislature designated the victim’s status as a young child as the aggravating element. The appellant’s assertion that the statue does not require proof of an aggravating element is incorrect, for the State must prove that the victim was a child under six. The only difference between the child capital-murder provision and other capital-murder provisions is that the child capital-murder provision does not require proof of an offender’s specific intent as to the nature of the circumstances surrounding the crime.


”We hold that there is no requirement in section 19.03(a)(8) that an offender know or intend that his victim be a child under six. In interpreting the meaning of a statute, we start with the plain language of that statute unless that would lead to an absurd result. The text of the capital-murder statute reflects that the legislature understands how to require specific intent as to the nature of the circumstances surrounding a particular method of committing capital murder. In section 19.03(a)(1), the legislature requires that the offender know that his victim is a peace officer or a fireman before authorizing a capital charge. See sec. 19.03(a)(1).  Section 19.03(a)(8) contains no similar requirement, so the text of the statute reflects that the legislature intends to dispense with a specific intent as to the victim’s status as a young child.” Id., at 897-98 (Emphasis added and internal citation omitted). See also: Ripkowski v. State, 61 S.W.3d 378 (Tex.Crim.App. 2001) [declined opportunity to revisit Henderson and Black].


Under the dual Henderson and Black rationale, all three parents in the Baby Grace and Alijah Mullis cases qualified for the death penalty. The decision not to seek the death penalty against Trenor and Zeigler because they have no prior allegations of violence is a pie without filling. It’s an empty excuse.


But the decision-making process in child capital case must be guided by the intent of the legislature; namely, that any individual (including a parent) who knowingly and intentionally causes the death of a child under six years of age is eligible for the death penalty. The legislature did not intend – and it certainly did not say – that parents who knowingly and intentionally cause the death of their children are exempt from the death penalty if they have no history of violence. It is inconceivable to think that the legislature would pass a law mandating the death penalty for the killers of children but apply it only to those with a history of violence.


Following District Attorney Sistrunk’s logic, § 19.03(a)(8) was not intended for parents who kill their children and who have no history of violence. The fact that a parent charged with capital child murder has no history of violence could – and should – be considered a mitigating factor by the jury deciding the death penalty issue. But this mitigating factor should have little bearing on a District Attorney’s decision about whether to seek the death penalty in capital child murder cases – especially in those cases as horrific as the Baby Grace and Alijah Mullis cases.


The decision of whether a death penalty verdict should issue in similar cases like Baby Grace and Alijah Mullis should be made by a jury that represents a fair cross-section of the community in which those crimes occurred. If a court of appeals should decide at some point in the future that a given case does not qualify for the death penalty, then that is precisely why we have courts of appeal.


The decision by the Galveston County District Attorney’s Office to seek the death penalty in the Alijah Mullis case but not in the Riley Ann Sawyer case undermines public confidence in our criminal justice system.  Such decisions also contribute to the inequity in the application of the death penalty that has led to contradictory decisions as to when seek the ultimate punishment.  The District Attorney in any community has a fundamental obligation to maintain public confidence in his/her office by making decisions, especially in capital cases, that are fair, equitable, and even-handed. Anything less violates the integrity of the District Attorney’s Office.


It is the very fact, that a single individual holds the power to decide who will face death and who will live, especially in cases with very similar fact scenarios, that contributes to the often unfair application of this cruel system of state sanctioned homicide and further undermines its legitimacy.