Death Watch: A Dying Breed

Officials down at Texas' once-proud and prolific death chamber must be beginning to wonder if they'll ever execute another inmate. The state hasn't executed anyone since Pablo Vasquez on April 6 and has since seen the past 12 inmates avoid the imminent within a few days of their death dates. Those stays – and in Perry Williams' case, a straight withdrawal (see "Death Watch: A First Time for Everything," July 15) – have come through questions over innocence, certain legal statutes, and a creeping feeling that the death penalty might not be that good of an idea. Look no further than the June opinion from Elsa Alcala, a judge on the traditionally death-friendly Court of Criminal Appeals, in the case of Julius Murphy. The judge saw "serious deficiencies" that have "caused ... great concern about this form of punishment as it exists in Texas today." One begins to sense a changing tide.

A stay was the case again late Friday, Sept. 2, when the CCA put the execution of Robert Mitchell Jennings on ice pending further order of the court. Jennings, 58, was convicted in 1989 for the 1988 murder of Houston Police Officer Elston Howard, who was issuing a citation to the owner of an adult novelty store when Jennings burst in to rob the place and shot Howard four times. The Houston native already had two convictions for aggravated robbery, and one for a home burglary, and had only been out for two months when he killed Howard. Even during that short time, his appeals attorneys acknowledge, Jennings had committed five different robberies.

In his CCA appeal this summer, Jennings argued that the state destroyed mitigating evidence that could have spared his life – particularly a recording of a police interview conducted shortly after Jennings' arrest in which he expressed "remorse in the way I feel about the incident that happened." Jen­nings has said that he had been drinking, that Howard "ran towards him" before he shot, and that he wished he could "take it all back." The trial court issued a "nullification" instruction during punishment, rendering the recording irrelevant during trial. Jennings' attorney Randy Schaffer cites precedent from the U.S. Supreme Court establishing the "nullification" instruction as unconstitutional. The high court has held since 2001 that "nullification" instruction requires reversal of a death sentence if there was mitigating evidence that the jury was not afforded the opportunity to consider. (Jennings has also asserted that he received ineffective counsel during his trial and that the death penalty violates the constitutional prohibition against cruel and unusual punishment.)

Jennings' name has also been included in the joint lawsuit filed Aug. 12 in Judge Lynn Hughes' court with Jeffery Wood, Ramiro Gonzales, Rolando Ruiz, and Terry Edwards – the five inmates on the execution calendar at the time of the suit's filing (see "Death Watch: The Quality of State Killings," Aug. 26). The five argue that they should be granted the right to have their doses of compounded pentobarbital (the cocktail used in state killings) tested for purity. The state said it would extend the courtesy to Perry Williams earlier this summer after Williams filed his own complaint, but in six months never got around to running the quick test (for some reason). Williams eventually got his date withdrawn.

Hughes dismissed Wood et al. three weeks ago, holding that: "The Con­sti­tution protects the rights of the people [to have their death doses tested] – not rights held collectively by groups." An appeal is currently pending in the 5th Circuit.