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Death Watch: Texas Court Declines to Consider Final Appeal

McCarthy would be 500th inmate and 5th woman to be executed
Jordan Smith, 11:55am, Wed. Jun. 26, 2013
Illustration by Jason Stout

The Court of Criminal Appeals on Monday declined to consider an appeal brought by death row inmate Kimberly McCarthy, slated for execution tonight. McCarthy would become the 500th inmate executed in Texas since reinstatement – and with the CCA's ruling, a claim that her conviction was tainted by racial bias will likely go unaddressed.

McCarthy was convicted in 2002 for the robbery-murder of her neighbor, Dorothy Booth, five years earlier. According to the state, McCarthy's addiction to crack cocaine prompted her to use a ruse to gain entry to the 71-year-old Booth's home – she apparently told the retired professor that she wanted to borrow sugar. Once inside, McCarthy repeatedly stabbed Booth. McCarthy also cut off Booth's finger – with the ring still on it – and stole her credit cards and car.

Tonight's date with the executioner is the third McCarthy has faced this year. Her two previous dates were pulled amid concerns that her conviction might have been tainted by racial bias. At issue is whether Dallas County prosecutors impermissibly struck from the jury pool all but one qualified minority potential juror. District Attorney Craig Watkins this spring agreed to postpone McCarthy's execution until today in order to give state lawmakers, during the then-ongoing 83rd Legislature, an opportunity to pass a so-called "Texas Racial Justice Act," which would allow death row inmates to claim on appeal that racial bias influenced their conviction.

The measure failed to pass, however, so McCarthy instead filed another appeal earlier this month, again arguing that prosecutors denied her equal protection under law by striking minority potential jurors otherwise qualified to sit in judgement. In that appeal McCarthy's lawyer, Maurie Levin, argued that McCarthy's trial attorney provided ineffective assistance by failing to preserve an objection related to the improper jury selection, and that McCarthy's appellate attorneys were also ineffective for failing to previously raise that claim. (Levin also filed a motion seeking to recuse Presiding Judge Sharon Keller and Judge Michael Keasler from considering the appeal because the jurists previously worked as Dallas prosecutors during the era when biased jury selection was condoned – and even encouraged. Keasler apparently chose not to participate in the case, according to the court's opinion; Keller presumably did participate, and agreed that the appeal should be denied.)

Ordinarily, raising an ineffective assistance claim in a habeas appeal is barred – there is no right to habeas counsel – but pursuant to a U.S. Supreme Court ruling earlier this year, an exception to that rule has been made in certain states, including in Texas. Texas' system, the court ruled, does not otherwise give inmates a meaningful chance to pursue ineffective assistance of trial counsel claims.

But the CCA on Monday nonetheless declined to allow McCarthy's appeal, concluding in a brief unsigned opinion that McCarthy's ineffective assistance claim does not "meet the dictates" of state law. In other words, the claim is not cognizable in a post-conviction writ in Texas. "Accordingly, we dismiss the application as an abuse of the writ without considering the merits of the claim, and we deny applicant's motion to stay her execution," reads the per curiam opinion.

Still, a group of accompanying, signed opinions – two concurrences and one dissent – reveal that the judges are at odds over whether and how ineffective assistance claims such as McCarthy's should be treated.

In dissent, Judge Elsa Alcala, joined by Judge Cheryl Johnson, argues that the issue decided by the Supremes may in fact "expand a defendant's right to counsel" beyond the trial stage, and that the CCA should reexamine its previous rulings that would deny an inmate's ability to raise a claim of ineffective assistance such as McCarthy's in a writ.

By issuing it's "cursory dismissal," and failing to address the matter directly, the state's highest criminal court is ceding to the federal courts the ability to decide on its own all such claims of ineffective assistance, she wrote. Deliberately shirking the CCA's duty to address the matter is akin to a child's taking his toys and leaving the playground.

By merely denying McCarthy's appeal without any analysis, Alcala charges that the court chooses to ignore the larger implications of the Supremes' recent decision – and the chance to explain its reasoning for both decisions. "At the very least, this Court should address [McCarthy's] arguments regarding the implications of [the Supreme Court decision] and write an opinion explaining what approach we will take going forward," she wrote. "Instead, there is only the sound of crickets."

In a weedy 10-page reply, Judge Cathy Cochran disagrees that the court's denial is an act of silence on the issues at hand. The CCA doesn't have authority to change the law to carve out an exception that would allow a habeas appeal based on an ineffective assistance claim, such as McCarthy's, to be heard, she argues. Moreover, she wrote, if the court were to recognize such an appeal it would cost the state millions to litigate such claims. The federal courts have found this exception and to the federal courts such claims should be puntedĀ – and by it, paid for, she wrote.

Judge Tom Price, joined by Judge Larry Meyers, agreed that the case should be dismissed, but did not accept Cochran's reasoning. Indeed, he wrote that while he understood – and was "not unsympathetic" – with Alcala's point about bouncing such claims to the federal courts to decide, he doesn't think that McCarthy's case is the right vehicle through which to address the issue. The record reflects that McCarthy could have made the ineffective assistance claim earlier in her appeals, Price wrote, and she hasn't provided any evidence that the failure of her trial attorney to object to the allegedly discriminatory jury-selection actually did her any harm at trial. McCarthy's appeal "fails to contain specific facts sufficient to establish" that she would prevail on the claim if the CCA had accepted her appeal, he wrote.

To Levin, the decision to deny McCarthy's appeal is an exercise in "form over substance." Racial bias "infected" the Dallas DA's office and has been repeatedly recognized by the Supreme Court, as recently as 2005. "Yet the CCA has nonetheless refused to even consider the merits of Ms. McCarthy's claim," she said in a statement.

Unless Levin can prompt a federal court to intervene – or unless Gov. Rick Perry grants a reprieve – McCarthy will be put to death tonight. She would become the fifth woman – and third black woman – executed in Texas since the mid-1800s.

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