Tried, convicted and executed: but was Kosoul Chanthakoummane guilty?

Tried, convicted and executed: but was Kosoul Chanthakoummane guilty? 

The victim, Sarah Walker

This is a look back at some of my previous work. I published this comment piece, with full references to source material, about the 2006 murder of Sarah Walker by Kosoul Chanthakoummane and the subsequent appeals and innocence claims prior to his execution on August 17, 2022. 

The latest relatively high-profile claim of innocence from a convicted killer on Death Row was that of Kosoul Chanthakoummane, convicted of murdering Sarah Walker in 2006. While Chanthakoummane always denied the crime, DNA evidence places him at the scene, bleeding, with his blood under the victim’s fingernails. Chanthakoummane was executed on August 17th.

Innocence advocates claimed there was “too much doubt” in Chanthakoummane’s guilt to proceed with his death sentence; they cited DNA results, hypnotised witnesses and “junk science”. 

One piece of defence advocacy proclaimed that “aside from the DNA that the state asserts was found under the fingernails of the victim, there is nothing else that conclusively ties Mr Chanthakoummane to the murder”. That really isn’t the winning argument they think it is – and it isn’t even true.

These claims are uncritically half-repeated from the defendant’s various unsuccessful post-conviction relief proceedings, and all have been ruled by the courts to be inadequate evidence to undermine or overturn his conviction.

Here are some of the claims from the defence, followed by the reality and how the courts have already ruled on the issue.

“Kosoul was convicted based on bite mark evidence that’s been ruled inadmissible because it’s junk science.”

Parts of the bite mark evidence used in Chanthakoummane’s trial have since been ruled inadmissible, yes. Specifically Dr Brent Huston, the forensic odontologist (dental expert), testified “within reasonable dental certainty beyond a doubt” that Chanthakoummane was responsible for the bitemark on the victim’s neck. At the time of trial this was considered acceptable — but more recent developments in the field of bitemark analysis have concluded that it is not possible to “match” a person to a particular bitemark, merely to either include or exclude them as a possible source.

Chanthakoummane was still included as a possible source of the bite, and the testimony of the medical examiner that the bite was inflicted at or near the time of death remains admissible. Frankly, Hutson wasn’t entirely wrong — while it is clearly not possible to match a bitemark to any individual, it is beyond a reasonable doubt that Chanthakoummane inflicted it as he killed Sarah.

The bitemark evidence itself was not central to the State’s case anyway — in closing arguments the State didn’t even use it to argue that it proved the Defendant’s guilt, but that it showed how savage the attack on the victim was.

The state would still be able to use the bitemark evidence at trial to show the savagery of the attack. Their case against Chanthakoummane was never based on the bitemark identification — it was based on DNA.

The Texas Court of Criminal Appeals ruled that Chanthakoummane failed to show a reasonable likelihood the bitemark identification even affected the jury’s judgement, and that it played “a minimal role” in the State’s case — he would have been found guilty without it.

“The eyewitnesses the State used were hypnotised, and statements given after hypnosis are unreliable.”

Two of the State’s eyewitnesses, realtors Mamie Sharpless and Nelson Villavicencio, underwent hypnosis to see if they could provide additional information about what they saw on the day of the murder. Issues with witness statements given after hypnosis are widely known, and Chanthakoummane argued that new discoveries in the field meant their testimony was unreliable.

Sharpless and Villavicencio first spoke to the police the day after the murder when Sharpless contacted them. Sharpless described receiving a phone call from a man introducing himself as “Chan Lee”, asking to see a house she was showing. When she turned up to work with Villavicencio they saw an Asian male in a white Mustang, asked him if he was Chan Lee and he said no. They saw him drive away, and then saw him parked outside the model home Sarah Walker was showing between 12.30 and 1. By 1.10, Sarah had been murdered.

After giving these initial accounts, they agreed to undergo hypnosis from Texas Ranger Richard Shing to see if their recollections could be improved. This sounds bizarre, like something from the 1970s or 80s when hypnosis to recover memories was often used and led to some genuine wrongful convictions. However, it turns out it still happens in some states, Texas included.

Obviously it’s a controversial topic. Hypnosis can be used to lead witnesses and the words used by the practitioner can be suggestive. We don’t have a transcript of the hypnosis session that Sharpless and Villavicencio went through, but criticisms of the session raised by the defence were rejected by the courts. Shing was trained and licensed to practice hypnosis.

These statements and the descriptions of the man they saw did not change, and they identified Chanthakoummane in court. And, even if their testimony was unreliable or inadmissible, their main purpose as witnesses is to place Chanthakoummane at the scene — we already know he was there, his blood was all over the home and under Sarah’s fingernails, and he eventually admitted to police that he went into the model home. These witnesses are just further confirmation of something we already know.

Three appeals judges dissented from the majority opinion denying Chanthakoummane’s Habeas writ in 2020 specifically on the issue of hypnosis, arguing that the court ought to “thoroughly examine the issue”. The judges did not endorse Chanthakoummane’s claims of innocence, they simply wanted to revisit the court’s position on “hypnotically enhanced” testimony.

The majority disagreed, pointing out that — as noted above — the issues with hypnosis have been established for decades. Many states have already banned such testimony, even before Chanthakoummane’s trial. Given that Chanthakoummane’s guilt is clear from the DNA evidence, it’s difficult to argue that the verdict would have been different without this testimony — and under Texas law, as upheld by the CCA, it is admissible. The court also ruled that, even if the evidence had been inadmissible, it would not have changed the jury’s verdict.

“The DNA evidence was flawed. The statistics used at trial were incorrect and subsequently had to be recalculated.”

That’s true. The DNA results given at trial had some statistical inaccuracies — but none of these meant that Chanthakoummane had been misidentified and wasn’t present, or that the DNA evidence against him was weak.

Even after the inaccuracies were corrected, the evidence that was weak at trial — some degraded partial profiles which could not be conclusively matched to Chanthakoummane — remained weak, while the rest of the evidence that was strong at trial remained strong. At trial the blood under Sarah Walker’s fingernails was said to be 16.5 billion times more likely to match Chanthakoummane than anyone else. After being reanalysed, the results state it would match 1 in 5.09 billion people — including Chanthakoummane.

Chanthakoummane’s blood was found smeared throughout the model home, mixed with Sarah’s blood. The same samples were tested against all the police’s alternative suspects, and all of them were excluded from at least ten samples.

Sarah Walker was viciously attacked, and her hands and fingernails showed defensive wounds — she fought back, wounding her attacker and getting his DNA under her fingernails. That attacker was Chanthakoummane.

Some defence sources claim that Chanthakoummane had no visible wounds, implying that the DNA results were somehow faked, presumably. That simply isn’t true — Officer Copin testified at trial that he had healing cuts on his hands when he was arrested two months later.

Now, here’s what the defence didn’t tell you.

Chanthakoummane was already on parole, having been released from prison after serving a sentence for assault and aggravated robbery.

The day before the murder, Chanthakoummane stalked and harassed another local realtor under the alias “Chan Lee”, leading her to call the police out of fear for her safety.

“Chan Lee” told Marie Sharpless on the phone that he was from North Carolina and was calling from an InTown Suites. Chanthakoummane had just put in an application for an apartment near an InTown Suites, and he had just moved to Texas from North Carolina.

Shortly after Sarah Walker was robbed and killed, Chanthakoummane pawned various items. Sarah’s brand-new Rolex was never found.

Chanthakoummane initially lied to police and said he had never been to the model home in which Sarah was murdered. He eventually admitted going in, while bleeding from a cut he got at work, trying to pour a glass of water but only being able to get the hot water to come on, before leaving without seeing Sarah.

At the punishment phase of his trial after he had been found guilty, Chanthakoummane’s own defence attorney admitted he was guilty: “he wanted to rob (Sarah Walker), and it didn’t go the right way, and he killed her.”

The jury found Chanthakoummane guilty of capital murder in just half an hour.

Those who argue for Chanthakoumanne’s innocence are distracting people from the heartfelt and serious message of Sarah’s father, Joseph Walker, who was absolutely opposed to the death penalty. The state pursued capital punishment in this case despite his staunch opposition. When asked what he would say to Chanthakoummane if he met him, he reiterated his previous message of forgiveness: “I forgive him. I truly do. I would say to him in person, ‘I hope in your heart you could really understand our Lord loves you.’ That would be it.”

I am opposed to the death penalty — but by concentrating its efforts on obviously guilty Death Row inmates, the innocence movement is abandoning genuinely wrongly convicted people. They’re using lies and myths to strengthen the basis behind the argument that the death penalty is wrong because innocent people could be executed. While that possibility is horrific, that doesn’t make Kosoul Chanthakoummane innocent.

Sources

Findings of fact and conclusions of law (2019) http://www.marxhowell.com/images/__20_Kosoul_61472_Chan_61472_Collin_Co._McK_Findings_of_Fact_and_Conclusions_of_Law_HC2.pdf

Chanthakoummane v. State (Tex. Crim. App. 2010)

Ex Parte Kosoul Chanthakoummane (Tex. Crim. App. 2013)

Chanthakoummane v. Texas, 2010 (certiorari denied on direct appeal)

Chanthakoummane v. Stephens, 2015 (federal habeas decision denying COA)

Chanthakoummane v. Stephens, 816 F.3d 62 (5th Cir. 2016) (affirming denial of COA)

Chanthakoummane v. Davis, 2016 (certiorari denied) https://caselaw.findlaw.com/us-5th-circuit/1727453.html

Ex Parte Kosoul Chanthakoummane (Tex. Crim. App., 2017) (subsequent habeas writ denied)

Ex Parte Kosoul Chanthakoummane (Tex. Crim. App., 2020) (second subsequent habeas writ denied) — https://drive.google.com/file/d/1G_NzJFtAjGEmwuSMuRgh1RXTFplfZNAx/view?usp=drivesdk

Chanthakoummane vs. Texas (Petition for Certiorari 2020) http://www.supremecourt.gov/DocketPDF/20/20-6799/165021/20201231084735973_Kosoul%20Chanthakoummane%20Petition%20for%20Cert%20Dec%2031%202020.pdf