Death Watch

The Court of Criminal Appeals on Monday declined to consider an appeal brought by death row inmate Kimberly McCarthy, slated to be executed tonight – 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 gain entry to the 71-year-old Booth's home, repeatedly stab her, cut off her finger – with the ring still on it – and steal 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 over whether Dallas prosecutors impermissibly struck from the jury pool all but one qualified, potential minority juror. District Attorney Craig Watkins this spring agreed to postpone McCarthy's execution in order to give state lawmakers an opportunity to pass a so-called "Texas Racial Justice Act" during the lege session. When the measure failed to pass, McCarthy's lawyer, Maurie Levin, instead filed another appeal earlier this month arguing that McCarthy's trial attorney and appellate attorneys both provided ineffective counsel regarding the improper jury selection. Ordinarily, raising such a claim in a habeas appeal is barred, but pursuant to a U.S. Supreme Court ruling earlier this year an exception to that rule has been made in certain states, including Texas. Our system, the court ruled, does not otherwise give inmates a meaningful chance to pursue ineffective-assistance-of-trial-counsel claims.

But the CCA concluded in a brief unsigned opinion that the ineffective assistance claim does not "meet the dictates" of state law. So unless Levin can prompt a federal court to intervene – or unless Gov. Rick Perry grants a reprieve – McCarthy will become the seventh woman, and fourth black woman, executed in Texas since the mid-1800s.