As courts consider death penalty questions, other states stopping 05/19/2002 By ED TIMMS / The Dallas Morning News Texas' bigger-than-life ethos is sometimes more brag than fact, but one distinction is apparent: No other state has executed more inmates this year. http://www.dallasnews.com/texassouthwest/stories/051902dntexdeathpenalty.65473.html So far, 28 offenders have been put to death nationwide, 12 in Texas. And Texas accounts for all but two of the 15 executions scheduled in the United States through mid-September. Because of legal complications and angst over how the death penalty is administered, several other states that until recently executed offenders have stopped - at least for the present. Several factors contribute to Texas' sobering record. Those include a political climate in which the penalty is not a liability, as well as state and federal appeals courts that are not hostile to the death penalty. Texas Gov. Rick Perry repeatedly has voiced his support for the death penalty, vetoed a bill last year that would have barred the execution of mentally retarded offenders and opposes a moratorium on executions. Such sentiments are not uncommon among political leaders in the states where most executions are carried out. "You have a lot of states outside the South with very large death row populations and no executions," said University of Texas law professor Jordan Steiker, an authority on capital punishment who once served as a law clerk law clerk to Supreme Court Justice Thurgood Marshall. "Outside the South and the border states, there simply hasn't been the same political will." Some critics claim that the Texas Court of Criminal Appeals, the state's highest criminal court, repeatedly has turned a blind eye to serious shortcomings in how capital cases are tried. Similar charges are leveled against the 5th U.S. Circuit Court of Appeals, which also reviews Texas death penalty cases. "We have a politicized, partisan judicial system," said Steve Hall, director of the StandDown Texas Project, which is seeking a death penalty moratorium. Juries continue But even as national and international attention focuses on the Lone Star State because of the death penalty, and legal challenges continue, juries in Texas, which decide punishment in capital cases, continue to sentence defendants to die. "If people in Texas are really, by and large, disgusted with the fact that we have a death penalty, I think you would see far fewer death penalty cases handed out," said Diane Beckham, staff counsel for the Texas District and County Attorneys Association. She said she sees little evidence that Texas legislators are being encouraged by their constituents to oppose the death penalty. Texans who oppose the death penalty, or seek a moratorium so that its application can be reviewed, assert that the system under which defendants are convicted for capital crimes and sent to death row is profoundly flawed. And they suggest that Texans are increasingly concerned about how the death penalty is applied. "No other state carries out executions at such a relentless pace as Texas," said Mr. Hall. "This headlong dash occurs in spite of many controversies over police and prosecutorial misconduct, inadequate standards of legal representation, dubious testimony by so-called experts, an appeals court that puts a seal of approval on sleeping lawyers, and a clemency process that simply does not fulfill its historic responsibility." What some have described as isolated incidents, Mr. Hall said, represent systemic problems. Roe Wilson, chief of post-conviction writs for the Harris County district attorney's office, said that Texas' death penalty statute has been examined repeatedly by higher courts and has withstood the scrutiny. "Anyone who is executing the death penalty, putting it into place and carrying it through like we do in Texas ... then you've got a vested interest in doing it the right way and making sure that the law is as tight and well-defined as you possibly can," Ms. Wilson said. Litigation avoided Mr. Steiker said that by defining what qualifies as a capital murder narrowly at the guilt-innocence stage of trial, Texas has avoided much of the litigation in other states, as has having juries sentence the defendants in capital cases. Still, some Texas executions have been held up, as courts consider the merits of appeals. Whether that's part of a cycle, is a fluke, or reflects a broader hesitation about the death penalty, is open to speculation. Last-minute reprieves this month postponed the executions of two Texas death row inmates, Curtis Lee Moore and Brian Edward Davis, after the U.S. Supreme Court received petitions alleging that they were mentally retarded. The 5th U.S. Circuit Court of Appeals intervened and delayed the execution of Smith County death row inmate Henry Dunn last week; in that case, questions were raised about the competence of Mr. Dunn's appellate counsel. And in February, the Supreme Court also agreed to hear the case of Thomas Miller-El, who was sentenced to death in 1986 for the murder of an Irving hotel clerk during a robbery. Mr. Miller-El's attorneys claimed that potential jurors were excluded from his trial because of their race. Supreme Court cases Two cases before the Supreme Court, neither from Texas, could have a significant impact on the death penalty in America. One case, Atkins vs. Virginia, resulted in reprieves for Mr. Moore and Mr. Davis. It examines whether executing mentally retarded offenders is cruel and unusual punishment, which is prohibited by the Eighth Amendment of the U.S. Constitution. The court is expected to rule in the Atkins case this summer. More than a decade ago, the Supreme Court overturned the conviction of Texas death row inmate Johnny Paul Penry, ruling that instructions to his jury did not allow proper consideration of mitigating evidence, such as his mental retardation. Justice Sandra Day O'Connor wrote in the majority opinion that, at that time, there was not sufficient evidence of a "national consensus against executing the retarded." Mr. Penry was convicted in a subsequent trial, but his death sentence was overturned by the Supreme Court last year. A new punishment hearing is under way. Mr. Steiker theorized that if the Supreme Court decides in the Atkins case "that there is now an emerging, prevailing consensus against executing people with mental retardation," that would suggest that the way the court gauges "societal consensus" is shifting. Such a shift, he said, could have ramifications for other death row inmates. For example, he said, the Supreme Court justices might find that executing offenders who were under the age of 18 at the time of the offense is unconstitutional, or they might revisit the issue of executing offenders who were not directly responsible for a capital murder, so-called "non-triggermen." 'Up to the states' Richard Dieter, executive director of the nonprofit Death Penalty Information Center, said that if the Supreme Court decides to bar the execution of the mentally retarded, the justices "may not lay down neatly what mental retardation is, and leave it up to the states and courts to figure this out." And that, he said, is likely to set off considerable debate and legal wrangling. Harris County prosecutors, for example, assert that Mr. Davis, convicted for the 1991 stabbing death of Michael Alan Foster in Humble, is not mentally retarded - and that claim was first raised in legal petitions on the day he was to be executed. His attorneys point to Mr. Davis' long history of difficulties in coping with day-to-day life, placement in special education classes while in school, and a test that placed his IQ at 74 - four points above 70, one benchmark for retardation, but within the margin of error. The Supreme Court also could decide that the execution of the mentally retarded does not constitute cruel and unusual punishment. If that occurs, inmates who were granted reprieves because of Atkins could be facing execution again in the near future. Sentencing by judge In the second case, Ring vs. Arizona, Supreme Court justices will examine the constitutionality of death sentences being handed down by a judge rather than a jury. The case does not directly affect cases in Texas, where juries in capital cases decide punishment. But the Ring case has contributed to Texas' dominance of death row statistics in 2002: Pending a ruling by the Supreme Court, several states in which judges assess the death penalty are not executing offenders. Ms. Wilson, the Harris County prosecutor, predicts that frequency of executions in Texas will increase. Death penalty reforms in 1995, she said, which restructured the appeals process, resulted in "a tremendous number of cases in the federal system." "We had a huge glut of cases that arrived ... about the same time," she said. "And now they're starting to come out."