Naked City

Rep. Terry Keel, R-Austin, chairman of the House Committee on Criminal Jurisprudence, offered an excellent impression of Joseph McCarthy at his panel's April 8 meeting -- grilling witnesses not about their Communist sympathies but their death-penalty attitudes. The major victim of Keel's baiting was UT law professor Jordan Steiker, testifying against Keel's HB 614, one of several competing bills to address when and how courts will decide if a capital defendant is mentally retarded. All are responses to the U.S. Supreme Court's 2002 ruling that executing the mentally retarded is unconstitutional.

Other bills before the Lege, and experts like Steiker and every other state that's addressed the issue, agree that this decision is best made before trial. But Keel's bill would ask the same jury that's already convicted a capital defendant to assess mental competency as part of the trial's punishment phase. This is likely unconstitutional, Steiker and others pointed out. "It is fundamentally unfair," he said, and "you can't expect it to pass Supreme Court scrutiny."

In response, Keel questioned -- actually, attacked -- not Steiker's position on the bill at hand, but his personal feelings about the death penalty. "I've never had one of you come here and say, 'Yes, I believe there are some occasions where the death penalty is appropriate,'" Keel told Steiker. "You're not really interested in a fair process; you're interested in putting up every barrier there could possibly be for a fair resolution to the issues so that justice can be served. ... Every one of you are anti-death penalty." Keel later brandished a law-review article by Steiker and his sister, Carol Steiker, arguing that death-penalty abolitionists should only support legislation to end, rather than reform, capital punishment. "You are under oath to this committee. ... Are you or are you not an abolitionist?" Keel asked Steiker. The rep "didn't care at all about my testimony -- whether his bill is unfair or unconstitutional was beside the point," an irritated Steiker later told Naked City.

Sources say that Keel is likewise irritated that anyone would think to contest his bill. But according to Keith Hampton of the Texas Criminal Defense Lawyers Association, legislators had already agreed to not offer any bills to address the Supreme Court ruling until they could decide the most constitutional approach -- until Keel filed his HB 614. "Under Keel's bill, the state will be able to execute the mentally retarded any time they want," he said. "We'd rather have no bill than that." Despite assuring Hampton and others that he wouldn't pass his bill on to the House floor, Keel did just that shortly before 1am on April 9. Still, Hampton predicts a fight: "It's not as greased as he thinks it is," he said.