Carl Nance Jr

HOUSTON -- A federal appeals court has upheld a lower court’s ruling ordering a new sentencing trial for a Houston man on death row for raping and killing an 11-year-old boy in 1987.

The 5th U.S. Circuit Court of Appeals in New Orleans ruled late Thursday that jurors weren’t given sufficient instructions on how or whether to consider mitigating circumstances—such as mental impairment or a difficult childhood—before they deliberated the sentence of 43-year-old Warren Darrell Rivers. It did not overturn Rivers’ capital murder conviction, as Rivers’ attorneys had hoped it would.

Rivers’ trial was held during a time when trial rules for Texas capital cases were evolving, particularly in the area of mitigation evidence and how it should be applied to punishment. The U.S. Supreme Court has visited the issue several times, refining trial procedures through their rulings, and several cases of that era have been returned to trial courts for new punishment hearings.

State lawyers argued unsuccessfully that the jury instructions in Rivers’ case amounted to harmless error because of ample evidence of Rivers’ propensity for violence and the horrific facts of the slaying.
Rivers’ attorneys had asked the appeals court to overturn his conviction. They argued that Rivers, who is black, was convicted in 1988 by an all-white jury, and that prosecutors improperly used peremptory strikes during jury selection to remove three potential jurors because they were black.

The appeals court, however, said Rivers doesn’t contend race was an issue in the case and that most of the participants in the case are black, including the victim.

Prosecutors say Rivers lured Carl Nance Jr. to an abandoned house a few miles south of downtown Houston on May, 3, 1987, while the boy was running an errand for his mother. They say Rivers beat Nance, sexually abused him and stabbed him in the heart and back, killing him. The boy’s body was found in the house the next day.

Rivers, who was 20 at the time, was arrested days later. He told detectives the boy went with him voluntarily for sex, and that he attacked the boy with the knife after falling asleep and waking from a nightmare about being chased.

Huntsville attorney John Wright, one of Rivers’ attorneys, said Friday that he might appeal the new ruling to the U.S. Supreme Court to try to get the conviction tossed.

"I don’t know exactly what the tactic is going to be," he said.

The Texas Attorney General’s Office, which handles Texas death penalty cases in the federal courts, also may appeal the sentencing ruling to the high court.

Warren Rivers was convicted of the May 1987 sexual assault and stabbing death of 11-year-old Carl Nance, Jr. in Houston. Nance was lured to an abandoned house where he was sexually assaulted and then beaten and sexually mutilated with a broomstick. The boy was stabbed four times in the back and chest with a knife. Rivers was arrested after people told police they saw him with the boy before the killing. Rivers later confessed to the crime.



Rivers was sentenced to death in December 1988.

Update: the 5th Circuit tossed Rivers' death sentence on August 5, 2010.