Man convicted of killing 6 in El Paso files new appeal days ahead of scheduled execution

This is the final story in a two-part series. Previously: After almost 4 decades, El Paso mom prepares to watch daughter’s killer die

The lawyer for David Leonard Wood has filed last-ditch appeals in state and federal courts in hopes of stopping the March 13 scheduled execution of the man convicted in the slayings of six El Paso girls and young women more than 37 years ago.

Wood is scheduled to be put to death by lethal injection more than 32 years after he arrived on death row. No inmate has ever been held on Texas’ death row longer before being executed. At age 67 years and 8 months, he would be the third oldest person executed by the state of Texas.

His attorney, Gregory Wiercioch of Wisconsin, filed a new appeal with the Texas Court of Criminal Appeals on Friday, Feb. 21, saying there’s evidence that Wood is innocent, and that he had ineffective counsel in his 1992 trial. He also has a separate appeal before the U.S. Fifth Circuit Court of Appeals.

“David Wood is innocent. I am convinced of it like no other case I’ve worked on in 30 years of death penalty defense representation,” Wiercioch said in an interview with El Paso Matters.

The Texas Attorney General’s Office, which is representing the prosecution in appeals, hasn’t filed a formal response to Wood’s latest appeals. But the state has long maintained the evidence proves Wood’s guilt and the death sentence should be carried out.

In 1992, Wood was convicted of capital murder and sentenced to death in the 1987 deaths of six girls and young women whose bodies were found buried in shallow graves in the Northeast El Paso desert. Prosecutors acknowledged their case was circumstantial, in part because the bodies were decomposed by the time they were found.

In their latest appeal, Wood’s lawyers say police focused on him as a suspect because they were under immense public pressure in 1987 and 1988 to solve the case. 

Wood was scheduled to be executed in 2009, but the Court of Criminal Appeals granted a stay to allow his attorneys to argue that he had an intellectual disability that should preclude his execution. The appeals court eventually rejected those arguments in 2014, then rejected his pleas for DNA testing of evidence in 2024.

He faces a steep challenge in his efforts to again stave off execution. His appeal to the Court of Criminal Appeals is going to a court that has repeatedly rejected prior appeals from Wood and last year scolded Wiercioch for “piecemeal litigation and delay” in his efforts to stave off the executioner.

The Court of Criminal Appeals initially declined to accept the appeal, called a writ of habeas corpus, because it was more than twice as long as permitted by court rules. The defense team filed an amended 313-page appeal Feb. 27, down from the original 373 pages and within the range allowed by the Court of Criminal Appeals.

In recent days, both the U.S. Supreme Court and a federal judge in Austin turned down separate appeals from Wiercioch. He has appealed the federal court ruling to the 5th Circuit Court of Appeals in New Orleans, one of the nation’s most conservative appellate courts. The 5th Circuit has asked that all briefs be filed by March 7. That appeal could wind up at the Supreme Court before Wood’s scheduled execution.

Wiercioch said the Texas Attorney General’s Office is responsible for the years of litigation in Wood’s case, because its lawyers consistently opposed his efforts to get DNA testing on evidence collected decades earlier.

“The only explanation I can figure out is, they don’t want to know. They don’t want to know what that DNA results may be,” Wiercioch said.

But the Court of Criminal Appeals disagreed with Wiercioch. Texas law allows DNA testing after conviction if several convictions are met. One of those is “the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.”

The Court of Criminal Appeals ruled last year that Wiercioch was doing precisely that in a series of appeals over the years.

The state’s top criminal appeals court, in an 8-0 ruling, said “over the entire period that his subsequent DNA motions have been pending, he has a pattern of piecemeal litigation and delay. And as can be seen with his latest flurry of motions filed with his reply brief, he is still doing it.”

Wiercioch, who began representing Wood in 2008, filed six separate requests for DNA testing of more than 250 items between 2010 and 2017. In court filings, Wiercioch has said he made the requests as he became aware of possible DNA material held by the state.

The state agreed to the first testing request in 2010, for DNA testing of blood samples recovered from three of the victims. Two of the samples were inconclusive, and the third came back from an unidentified male and excluded Wood as a contributor of the sample. 

Wiercioch said the sample that excluded Wood pointed to his innocence and justified further testing, but the Attorney General’s Office disagreed. Eventually, so did the courts.

In March 2022, the judge assigned to hear appeals in Wood’s case, Bert Richardson of San Antonio, rejected the requests for additional DNA testing, without offering an explanation. The Court of Criminal Appeals upheld the ruling in May 2024, and the Austin federal judge rejected a challenge of those findings Feb. 19.

A complicated death row appeals process

Wood’s appellate path has been complicated, even by Texas capital punishment standards.

His 1992 trial, which was moved to Dallas because of extensive pretrial publicity in El Paso, was prosecuted by the El Paso District Attorney’s Office, which was led then by Steve Simmons. Judge Peter Peca Jr. of El Paso’s 171st District Court presided over the trial and handed down the death penalty, as ordered by the jury in the case, in November 1992.

Peca left the 171st District Court in 1998 and Richardson was later appointed to hear Wood’s appeals of his conviction. Richardson was elected to the Court of Criminal Appeals in 2014 but has continued to oversee Wood’s trial court appeals. He doesn’t participate in the appellate court’s deliberations on Wood’s case.

As prosecutors were preparing for Wood’s trial, Simmons lost the Democratic primary election for district attorney to Jaime Esparza, who took office in January 1993.

Esparza had been appointed by Peca to represent Wood in 1990, but Wood quickly asked that Esparza be removed from the case because he had worked for the DA’s office during the early stages of the desert death investigations.

Because Esparza briefly represented Wood, the District Attorney’s Office couldn’t handle appeals once he took office. Courts appointed district attorneys pro tempore to represent the state in appeals. The current district attorney pro tem is Rachel Patton, an assistant attorney general for the state of Texas.

For Wiercioch, the most expedient way for Wood to get a stay of execution would be for current El Paso District Attorney James Montoya to reclaim the case from the Attorney General’s Office and join in the defense motion for additional DNA testing. He said Montoya, who doesn’t have a conflict of interest that would prevent him from reclaiming the case, has rebuffed his efforts to discuss the idea.

“If you’re running for DA, part of your job description is dealing with a case like this. Don’t tell me you don’t have the bandwidth for a death penalty case. Don’t tell me that,” Wiercioch said. 

In a statement to El Paso Matters, Montoya said he’s not interested in involving the DA’s office in the case after three decades. He said the case is best handled by the special prosecutors who are most familiar with the evidence.

“Whether additional DNA testing is appropriate would require a comprehensive review of the entire case and the state of the evidence, both as it was in 1987 and now in the present day – which is precisely why our office is ill-suited to offer an opinion one way or another; it has not been our case for over 30 years,” Montoya said.

“Furthermore, the courts have already ruled. In 2022, after more than 10 years of protracted litigation, a Texas district judge denied Mr. Wood’s multiple requests for additional DNA testing and in 2024, the Texas Court of Criminal Appeals unanimously upheld that denial, ruling that Mr. Wood’s requests were made to unreasonably delay the execution of his sentence.”

Wiercioch said Montoya lacks courage.

“That is unconscionable, unconscionable, to say you, as the elected district attorney, are unwilling to take this case back, now that there’s not a conflict in the office. And the attorney general’s office has no interest in seeing justice done in this case. They’ve proven that over the last 12 years. They’re not seeking justice, they’re seeking an execution,” he said.

The Attorney General’s Office did not respond to a request for comment.

David Leonard Wood’s latest execution appeal

Wood’s most recent appeal has two key claims – that Wood is innocent, and that he had ineffective legal representation in his trial.

In the innocence claim, Wiercioch attacks the testimony of two men who were incarcerated with Wood – so-called “jailhouse snitches” – who testified that he had confessed to them that he committed the killings.

“That’s the most unreliable evidence there is in the criminal justice system. We call it the canary of the coal mine of wrongful convictions. Because if you’ve got a jailhouse snitch, that means you don’t have anything else,” Wiercioch said.

He said the two men had incentives to lie that Wood had confessed – a reduction in sentence, and access to a reward offered in the slayings. The new challenge to the testimony of the two men, Randy Wells and James Sweeney, is a declaration of another man jailed with them and Wood – George Hall.

In a written declaration to Wood’s defense team in October 2024, Hall said prosecutors asked him to testify against Wood, but he refused. He said police gave their investigative files to him, Wells and Sweeney to review. Hall said Wells and Sweeney read through the files but he just quickly looked at them “because I wasn’t going to railroad David Wood.”

After reviewing the files, “Wells and Sweeney confirmed that David Wood had confessed to them what they had just seen in the file,” Hall said in the declaration.

He said hadn’t made the statements earlier because he was afraid his parole might be revoked. Hall said he came off parole in February 2024.

The appeal also said “newly discovered evidence” raises questions about Wood’s guilt. But the appeal shows that much of the information has been known to Wood’s attorneys for years, even decades.

The appeal says Wood’s truck, which prosecutors said was used in the crimes, was damaged in July 1987 and in a salvage yard throughout August, when some of the women Wood was accused of killing disappeared. Weircioch also said a police report showed Wood was under surveillance when two of the women disappeared; an expert witness gave misleading testimony about fibers collected from the crime scene; and that three witnesses said they saw one of the victims months after prosecutors said she was last seen with Wood.

Wieroch raises many of these same issues in his claims of ineffective counsel during the trial. A motion for a stay of execution includes a Feb. 12 affidavit from one of Wood’s trial lawyers, Dolph Quijano Jr.

In the affidavit, Quijano said prosecutors did not give him the report showing surveillance of Wood in August 1987. But he acknowledged that he was aware of much of the evidence raised in the latest appeal, but said he did not use it during the trial.

“I did not have a strategic reason for failing to put on this evidence,” Quijano said repeatedly in the affidavit.

When asked by El Paso Matters when he became aware of the evidence cited in his appeal, Wiercioch said he couldn’t recall. He said he didn’t raise these issues until the latest appeal because he needed to first exhaust the legal fight over DNA testing.

“If we had filed before we were finished litigating DNA testing, then it would be extremely difficult to bring that (DNA testing) up later because they’d say, why didn’t you raise it beforehand?” he said, blaming the Attorney General’s Office for refusing to agree to the testing for more than a decade.

Wiercloth acknowledged that the Court of Criminal Appeals, which could decide whether Wood lives or dies on March 13, has previously accused him of what he called “playing games.” He rejects that criticism, and says he hopes the court may rule in Wood’s favor after years of rejecting his appeals.

“One, I don’t think they’ve ever seen a case like this before, this powerful evidence of actual innocence. Secondly, we’ve got three new judges on the CCA. They just started on January 1st. I would like to think seeing a case like this in their first couple of months on the bench is going to make them sit up and take notice and say, ‘We need to take a closer look at this case.’”