Death Watch: Last-Ditch Efforts to Avert 2019’s First Execution

Robert Jennings files new motions in 1988 murder case


The state still hopes to execute its first inmate of 2019 before January's end. Blaine Milam was scheduled to die by lethal injection on Jan. 15, but with 24 hours left to live, he was granted a stay by the Texas Court of Criminal Appeals and his case was remanded back to the trial court. Now Robert Jennings is fighting for a similar outcome. Sched­uled to die on January 30 – his second execution date – the Houston native filed in November a stay request and appeal with the U.S. Supreme Court, and a separate motion for relief in federal court on Tuesday, Jan. 22.

Jennings, now 61, was convicted of capital murder for killing Houston Police Officer Elston Howard in 1988 while attempting to rob an adult bookstore. SCOTUS last denied Jennings relief in January 2016, but eight months later he narrowly escaped the needle when the CCA first stayed his execution to further review claims that the state destroyed a police interview from shortly after his arrest, in which Jen­nings expressed remorse for shooting Howard. The interview, Jennings argued, should have been used as mitigating evidence that could have swayed the sentencing jury.

Jennings' most recent motion argues ineffective trial counsel – specifically that his previous claims "received no review on the merits in any court," which "seriously affects the integrity of the prior proceedings in this case." The filing references the Supreme Court's 1976 decision to reinstate the death penalty, which calls for execution only if a jury was "empowered to give a reasoned moral response to evidence of that person's life and character," an opportunity Jennings argues he was denied. He also argues that the Supreme Court's ruling in Penry v. Lynaugh, which was decided during his trial, found that Texas' statute on capital sentencing often "failed to comply" with the Eighth Amendment because it didn't allow jurors to "impose a sentence directly related to the personal culpability of the defendant." Though the Penry decision made headlines in Houston when Jennings was being tried, his appeal argues, his trial attorneys didn't take notice and the jury received inaccurate instructions.

In September, shortly after Jennings' latest death date was set, his longtime appellate attorney Randy Schaffer filed a motion to appoint "conflict-free" counsel for his client in federal court. Jennings' Jan. 22 appeal argues that Schaffer failed to raise all available "extra-record" claims, and that Jennings' new legal team (led by Edward Mallett) had less than 90 days to review the case and take action before his looming execution. The 60-page filing concludes that Jennings' case is "extraordinary" and deserves to be reopened; according to the Houston Chronicle, Jennings has also asked the Texas Board of Pardons and Paroles to grant him a commutation. Should Jennings be the first inmate to die in the new year, he'll be the 559th person killed by the state since the death penalty's return in 1976.

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KEYWORDS FOR THIS STORY

Death Watch, Robert Jennings, capital punishment, death penalty, Edward Mallett, Randy Schaffer, Penry, Court of Criminal Appeals

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