Death Watch: One Man Spared, Another Set to Die

Mark Robertson seeks stay due to racist lawyer

Update: In light of the stay granted to Patrick Murphy by the U.S. Supreme Court on March 28, the Texas Department of Justice has issued new execution procedures barring all chaplains and ministers from the Huntsville execution chamber. Before his scheduled death, Murphy requested his Buddhist adviser be present during lethal injection, but the TDCJ denied the request claiming only TDCJ staff are allowed in the room and the department only staffs Christian and Muslim clerics. In his opinion, Justice Brett Kavanaugh provided the state two options: Allow all chaplains or none. Texas has chosen the latter, effectively immediately.

Just after 8pm on Thursday, March 28, the U.S. Supreme Court issued a last-minute stay to temporarily spare Patrick Murphy, one of the "Texas Seven" prison escapees, from lethal injection. Though Murphy's last round of appeals focused on Texas' controversial "law of parties," which holds accomplices to a felony murder responsible even if they took no part in the killing, his stay was granted because the Texas Department of Criminal Justice had refused his wish to have his Buddhist "spiritual adviser" present at his execution – a violation of his First Amendment rights. (Two months ago, SCOTUS denied a stay for Domineque Ray, an Ala­bama Muslim who sought to have his imam present for his execution. At least one justice, Brett Kavanaugh, switched his vote in Murphy's case, citing the "timely filing" of the request.) For now, SCOTUS has barred Texas from executing Murphy until it "permits" his "Buddhist spiritual advisor or another Bud­dh­ist reverend of the State's choosing to accompany Murphy" during his execution.

While TDCJ refreshes its memory of the Bill of Rights, Mark Robertson is now in line to be the third man put to death by the state this year, with an execution date of April 11. Robertson, sent to death row in 1991 for the double murder of his friend Sean Hill and Hill's grandmother Edna Brau, currently has several appeals and stay requests pending in different courts.

An appeal filed Tuesday, April 2, in the Texas Court of Criminal Appeals claims Robertson's trial attorney purposely excluded black people from jury selection. As quoted in the filing, Michael Byck admitted in a 1997 evidentiary hearing that he "really didn't" want any black men on the jury, for fear that they would not be "sympathetic" to Robertson – a white man. Byck admitted to sharing this plan with prosecutor Howard Wilson and alleged the two formed an agreement on it. To put an end to this type of blatant racism, Robertson argues the CCA should reconsider its previous denial of his 1997 appeal and stay his execution, especially in light of "multiple" Supreme Court cases – including Buck v. Davis – condemning racial discrimination in the criminal justice system. (In 2017, SCOTUS ruled that Duane Buck was sent to Texas' death row largely due to racial bias and racist testimony.) The filing also notes that court records of previous decisions in the case have gone missing.

Meanwhile, Robertson is also seeking relief at the 5th U.S. Circuit Court of Appeals, where his latest request is under seal. His previous appeals – which led to his original sentence being overturned, but then reimposed, in 2003 – focused on his trial counsel's failure to research and present mitigating evidence of Robertson's abusive childhood.

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