As courts consider death penalty questions, other states stopping 05/19/2002 By ED TIMMS / The Dallas Morning News Texas' bigger-than-life ethos is sometimes more brag than fact, but one  distinction is apparent: No other state has executed more inmates this year. So far, 28 offenders have been put to death nationwide, 12 in Texas. And  Texas accounts for all but two of the 15 executions scheduled in the United  States through mid-September. Because of legal complications and angst over how the death penalty is  administered, several other states that until recently executed offenders  have stopped - at least for the present. Several factors contribute to Texas' sobering record. Those include a political climate in which the penalty is not a liability,  as well as state and federal appeals courts that are not hostile to the  death penalty. Texas Gov. Rick Perry repeatedly has voiced his support for the death  penalty, vetoed a bill last year that would have barred the execution of  mentally retarded offenders and opposes a moratorium on executions. Such sentiments are not uncommon among political leaders in the states where  most executions are carried out. "You have a lot of states outside the South with very large death row  populations and no executions," said University of Texas law professor  Jordan Steiker, an authority on capital punishment who once served as a law  clerk law clerk to Supreme Court Justice Thurgood Marshall. "Outside the  South and the border states, there simply hasn't been the same political  will." Some critics claim that the Texas Court of Criminal Appeals, the state's  highest criminal court, repeatedly has turned a blind eye to serious  shortcomings in how capital cases are tried. Similar charges are leveled  against the 5th U.S. Circuit Court of Appeals, which also reviews Texas  death penalty cases. "We have a politicized, partisan judicial system," said Steve Hall, director  of the StandDown Texas Project, which is seeking a death penalty moratorium. Juries continue But even as national and international attention focuses on the Lone Star  State because of the death penalty, and legal challenges continue, juries in  Texas, which decide punishment in capital cases, continue to sentence  defendants to die. "If people in Texas are really, by and large, disgusted with the fact that  we have a death penalty, I think you would see far fewer death penalty cases  handed out," said Diane Beckham, staff counsel for the Texas District and  County Attorneys Association. She said she sees little evidence that Texas legislators are being  encouraged by their constituents to oppose the death penalty. Texans who oppose the death penalty, or seek a moratorium so that its  application can be reviewed, assert that the system under which defendants  are convicted for capital crimes and sent to death row is profoundly flawed.  And they suggest that Texans are increasingly concerned about how the death  penalty is applied. "No other state carries out executions at such a relentless pace as Texas,"  said Mr. Hall. "This headlong dash occurs in spite of many controversies  over police and prosecutorial misconduct, inadequate standards of legal  representation, dubious testimony by so-called experts, an appeals court  that puts a seal of approval on sleeping lawyers, and a clemency process  that simply does not fulfill its historic responsibility." What some have described as isolated incidents, Mr. Hall said, represent  systemic problems. Roe Wilson, chief of post-conviction writs for the Harris County district  attorney's office, said that Texas' death penalty statute has been examined  repeatedly by higher courts and has withstood the scrutiny. "Anyone who is executing the death penalty, putting it into place and  carrying it through like we do in Texas ... then you've got a vested  interest in doing it the right way and making sure that the law is as tight  and well-defined as you possibly can," Ms. Wilson said. Litigation avoided Mr. Steiker said that by defining what qualifies as a capital murder  narrowly at the guilt-innocence stage of trial, Texas has avoided much of  the litigation in other states, as has having juries sentence the defendants  in capital cases. Still, some Texas executions have been held up, as courts  consider the merits of appeals. Whether that's part of a cycle, is a fluke,  or reflects a broader hesitation about the death penalty, is open to  speculation. Last-minute reprieves this month postponed the executions of two Texas death  row inmates, Curtis Lee Moore and Brian Edward Davis, after the U.S. Supreme  Court received petitions alleging that they were mentally retarded. The 5th U.S. Circuit Court of Appeals intervened and delayed the execution  of Smith County death row inmate Henry Dunn last week; in that case,  questions were raised about the competence of Mr. Dunn's appellate counsel. And in February, the Supreme Court also agreed to hear the case of Thomas  Miller-El, who was sentenced to death in 1986 for the murder of an Irving  hotel clerk during a robbery. Mr. Miller-El's attorneys claimed that  potential jurors were excluded from his trial because of their race. Supreme Court cases Two cases before the Supreme Court, neither from Texas, could have a  significant impact on the death penalty in America. One case, Atkins vs. Virginia, resulted in reprieves for Mr. Moore and Mr.  Davis. It examines whether executing mentally retarded offenders is cruel  and unusual punishment, which is prohibited by the Eighth Amendment of the  U.S. Constitution. The court is expected to rule in the Atkins case this  summer. More than a decade ago, the Supreme Court overturned the conviction of Texas  death row inmate Johnny Paul Penry, ruling that instructions to his jury did  not allow proper consideration of mitigating evidence, such as his mental  retardation. Justice Sandra Day O'Connor wrote in the majority opinion that,  at that time, there was not sufficient evidence of a "national consensus  against executing the retarded." Mr. Penry was convicted in a subsequent trial, but his death sentence was  overturned by the Supreme Court last year. A new punishment hearing is under  way. Mr. Steiker theorized that if the Supreme Court decides in the Atkins case  "that there is now an emerging, prevailing consensus against executing  people with mental retardation," that would suggest that the way the court  gauges "societal consensus" is shifting. Such a shift, he said, could have ramifications for other death row inmates.  For example, he said, the Supreme Court justices might find that executing  offenders who were under the age of 18 at the time of the offense is  unconstitutional, or they might revisit the issue of executing offenders who  were not directly responsible for a capital murder, so-called  "non-triggermen." 'Up to the states' Richard Dieter, executive director of the nonprofit Death Penalty  Information Center, said that if the Supreme Court decides to bar the  execution of the mentally retarded, the justices "may not lay down neatly  what mental retardation is, and leave it up to the states and courts to  figure this out." And that, he said, is likely to set off considerable debate and legal  wrangling. Harris County prosecutors, for example, assert that Mr. Davis, convicted for  the 1991 stabbing death of Michael Alan Foster in Humble, is not mentally  retarded - and that claim was first raised in legal petitions on the day he  was to be executed. His attorneys point to Mr. Davis' long history of difficulties in coping  with day-to-day life, placement in special education classes while in  school, and a test that placed his IQ at 74 - four points above 70, one  benchmark for retardation, but within the margin of error. The Supreme Court also could decide that the execution of the mentally  retarded does not constitute cruel and unusual punishment. If that occurs,  inmates who were granted reprieves because of Atkins could be facing  execution again in the near future. Sentencing by judge In the second case, Ring vs. Arizona, Supreme Court justices will examine  the constitutionality of death sentences being handed down by a judge rather  than a jury. The case does not directly affect cases in Texas, where juries in capital  cases decide punishment. But the Ring case has contributed to Texas'  dominance of death row statistics in 2002: Pending a ruling by the Supreme  Court, several states in which judges assess the death penalty are not  executing offenders. Ms. Wilson, the Harris County prosecutor, predicts that frequency of  executions in Texas will increase. Death penalty reforms in 1995, she said, which restructured the appeals  process, resulted in "a tremendous number of cases in the federal system." "We had a huge glut of cases that arrived ... about the same time," she  said. "And now they're starting to come out."
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