Texas Today Executed Third Person in 2011; 467th Since 1982; 228th Under Rick Perry

Texas tonight executed Cary Kerr. He was the third person executed in Texas in 2011 and the 467th person executed in Texas since 1982.  Kerr was the 228th person executed in Texas since Rick Perry became governor. The next execution scheduled in Texas is June 1 when Gayland Bradford is scheduled for execution. There are four people scheduled for execution in Texas in June 2011.


From the Fort Worth Star-Telegram:

Tarrant County killer Cary Kerr was executed tonight, becoming the first inmate to receive the state’s new lethal injection cocktail.

Kerr, 46, who was convicted of raping and killing a Haltom City woman in 2001, had asked the U.S. Supreme Court for a stay but was denied Tuesday evening. The execution was scheduled for sometime after 6 p.m.

Kerr was the third person executed in Texas this year.

If the court had blocked the execution, it would have been the second time in four weeks that a convicted killer from Tarrant County had escaped his date with death.

On April 5, the Supreme Court gave Cleve Foster a temporary stay, knocking him out of position to be the first inmate injected with the new drug cocktail.

Earlier this year, the American manufacturer of sodium thiopental, one of three drugs used in Texas’ executions, stopped making the drug. In its place, prison officials plan to use pentobarbital, a drug used to euthanize animals.

The court’s decision, however, had nothing to do with Texas’ plans to use the new drug, nor did Kerr’s appeal.

Both condemned men claimed that they received poor legal help after they were convicted of capital murder in Fort Worth and sentenced to death.

The high court has agreed to hear an Alabama case with a similar claim of poor, post-conviction lawyers, and is also deciding whether to review Foster’s case and another similar case out of Arizona.

The background

In March 2003, Kerr was sentenced to death for raping and killing Pamela Horton, a mother of four whose body was found at 2 a.m. July 12, 2001, on Northeast 28th Street in Haltom City. Kerr was arrested after he drew attention to himself at the crime scene, asking paramedics to pull back the cloth covering her body so he could identify her.

Police found Horton’s purse in Kerr’s car and her torn bra and panties in his home. DNA tests showed Kerr’s semen in her mouth.

Kerr acknowledged that he had sex with Horton at his home after a night of drinking, but claims she left his apartment after an argument.

Last week, Kerr’s newest lawyer, Brad Levenson — director of the state’s new Office of Capital Writs, which was created by lawmakers to provide better representation for Death Row inmates — asked the Texas Court of Criminal Appeals to stay Kerr’s execution on the grounds that he has had poor legal representation.

Levenson argued that if Kerr’s trial attorneys had presented mitigating evidence about Kerr’s background, including his abandonment by his birth mother, his alcoholic father, and sexual assaults by neighbors, jurors might have sentenced him to life in prison, rather than death.

Levenson claimed that one of Kerr’s post-conviction attorneys, also known as “habeas counsel, should have raised those errors in his appeal, but he was “grossly incompetent.”

The Tarrant County District Attorney’s Office responded that prisoners don’t have a right to effective assistance of habeas counsel in post-conviction proceedings. While the Constitution guarantees the right to competent attorneys at trial, there is no constitutional right to an effective habeas lawyer.

The Texas court agreed with the district attorney’s office and denied Levenson’s request, but in a strongly worded dissent, two justices recommended staying Kerr’s execution until the issue can be further reviewed.

Levenson then petitioned the U.S. Supreme Court, urging it to grant Kerr a stay until it can explore whether there is a constitutional right to effective assistance of counsel in post-conviction proceedings — a claim that successfully halted the execution of Foster, who was set to die for the 2002 rape and murder of Mary Pal in Fort Worth.

Attorneys for the Texas attorney general’s office contended that the question of competent habeas counsel was irrelevant, not only because Death Row inmates don’t have the right to effective post-conviction attorneys, but because it wouldn’t have affected Kerr’s sentence.