The Austin Chronicle

Death Watch: Last Minute Reprieve Sought for Condemned Woman

By Jordan Smith, January 29, 2013, 1:50pm, Newsdesk

UPDATE: A Dallas judge this afternoon halted the impending execution of Kimberly McCarthy, who would have been executed tonight. According to press reports, Judge Larry Mitchell has postponed the execution until April 3. The news comes on the heels of the report below on efforts to halt the execution pending further review of the case.

Just hours before she is slated for execution, lawyers representing Kimberly McCarthy, doomed to die for the 1997 robbery and murder of her neighbor, are waiting to hear if Gov. Rick Perry will issue a 30-day stay so lawyers can determine whether Dallas prosecutors unlawfully struck all but one minority potential juror from McCarthy's jury pool.

If executed tonight, McCarthy would become the 493rd inmate executed since reinstatement of the death penalty, the first woman executed since 2005, and the fifth woman – and third black woman – executed in Texas since 1854.

A pair of letters, one to Perry and the other to Dallas Co. District Attorney Craig Watkins, written by UT School of Law professor Maurie Levin, argue that statistics on death row inmates and cases demonstrate racism in capital punishment in Dallas County.

In her Jan. 25 letter to Watkins, Levin points out that at the time of McCarthy's trial racial discrimination "pervaded" the county's jury selection system. Although the county is 22.5% black, just four minority individuals – including just three blacks – were questioned as part of the jury selection process in McCarthy's case. Of those, the state struck three; in the end, McCarthy faced a jury with 12 whites and one minority. Although the U.S. Supreme Court has ruled that discriminatory strikes of jurors is unconstitutional, the issue of discrimination in McCarthy's case has never been explored. Indeed, in her letter to Watkins – also signed by Frederick Haynes, senior pastor of the Friendship-West Baptist Church – Levin notes that Watkins has said he would advocate for passage in Texas of a law akin to North Carolina's Racial Justice Act, which allows death row inmates to appeal their convictions based on the claim that race played a factor in their conviction.

Indeed, there is little doubt that race has – and does – play a role in determining which Texas defendants face death penalty. Of the 31 people currently on death row from Dallas County, just 37% are white, Levin points out. Moreover, defendants accused of killing white victims are far more likely to get the death penalty – in Dallas County, 68% of victims were white. "Of all those cases, there is not a single one reflecting the prosecution of a white defendant for the murder of either an African American or Latino victim," Levin wrote.

Levin has asked Watkins to join her in asking Perry to halt McCarthy's impending execution. "Ms. McCarthy is facing imminent execution despite having been sentenced by a jury selected by unconstitutional and unacceptable means, out of a county and system that undeniably sentences African Americans to death at a disproportionate rate, and appears to value the lives of whites over that of African Americans," Levin wrote. "To permit her execution to proceed would only further undermine faith in the Dallas County criminal justice system."

As of this writing, neither Perry nor Watkins' office had responded to requests for comment.

More on McCarthy's case is here.

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