On Tex. Death Row, Old Issues Renewed

Legal Cases Target Age, Representation

By Paul Duggan

May 18, 2002

AUSTIN, May 17 -- He was a high school football star, the president of his senior class, a son of a respected family in his hometown of Grapeland, Tex. But that was before his arrest at age 17 on a murder charge stemming from a botched carjacking. Now Napoleon Beazley, 25, is awaiting his scheduled execution this month in a case that has become a lightning rod for death penalty opponents.

 His death sentence has attracted international attention because he was a juvenile at the time of the crime and because the victim was the father of a federal judge. Beazley also is one of three death row plaintiffs in a lawsuit filed against Texas today, echoing a long-standing complaint by capital punishment foes: They allege that the state is violating a 1995 state law that guarantees the court appointment of competent lawyers to handle condemned prisoners' appeals.

 Otherwise, Beazley is just another face in the death row crowd here -- one of 11 inmates due to be strapped to Texas's lethal injection table in a busy stretch of planned executions before the end of the summer.

 After a slow year for capital punishment in Texas in 2001, the state's death chamber is again the most active in the nation -- particularly this month. Two convicted killers already have been executed in May, and three more are scheduled to be put to death in the next two weeks.

 Of the 11 Texas inmates who have execution dates before Aug. 29, three were charged with committing murders when they were juveniles, including Beazley, who is scheduled to die on May 28. He was convicted in the 1994 slaying of Texas businessman John Luttig, 63, the father of Judge J. Michael Luttig of the Virginia-based U.S. Court of Appeals for the 4th Circuit.

 The European Union, the American Bar Association, Amnesty International and numerous other organizations have called for Beazley's life to be spared because of his age at the time of the killing. His attorneys have asked the U.S. Supreme Court to use Beazley's case to revisit the issue of whether the Constitution permits states to execute inmates who commit murders before age 18.

 "Our society, in every other respect, protects 17-year-olds," said Walter Long, one of Beazley's most recent appellate lawyers. "There are all sorts of limits. They can't vote, can't contract, can't serve on a jury, can't join the military [without parental permission]. . . . Yet they can be sentenced to death at 17 in a criminal case."

 The last time the high court dealt with the issue of age, in 1989, it ruled that imposing a death sentence on a defendant who committed murder at age 15 or younger would violate the Eighth Amendment ban on cruel and unusual punishment. Today, of the 38 states with capital punishment, 17 allow death sentences for 16-year-old convicted murderers. Sixteen states set the age limit at 18, and five states, including Texas, set the limit at 17.

 Complicating Beazley's appeal is the fact that three of the Supreme Court's nine justices -- Antonin Scalia, Clarence Thomas and David H. Souter -- have recused themselves from the case because of their familiarity with the victim's son. Judge Luttig, 48, who is often mentioned as a potential Supreme Court nominee, has worked with Scalia, Thomas and Souter at various points in his career.

 Beazley, a son of Grapeland's first black City Council member, had no criminal record before his arrest in Luttig's slaying, though he later told authorities he had sold crack and owned a gun. Last August, Gov. Rick Perry (R) said he had no qualms about the state's pending execution of Beazley.

 Texas has "sent a clear message that when you reach 17 years of age, you're going to be held responsible for your actions," Perry said, according to the Associated Press.

 Of the 777 inmates put to death in the country since executions resumed a quarter-century ago, 18 were charged with committing murders as juveniles, 10 of them in Texas, according to the Washington-based Death Penalty Information Center, which keeps statistics on capital punishment. Nationwide, 83 such inmates are awaiting executions, including 26 of Texas's 455 death row prisoners.

 Texas's pace of executions this year is approaching that of 2000, when a record 40 convicted murderers were put to death. The annual total dropped to 17 last year, when Texas, for only the second time in a decade, was not the nation's leading death penalty state. Oklahoma executed 18 inmates in 2001.

 On Thursday, Ronford Lee Styron Jr., 32, was put to death for the fatal beating of his 11-month-old son. His execution was the 12th in Texas in 2002 -- four fewer than the total for the rest of the nation this year.

 No one attributes Texas's widely fluctuating execution totals in recent years to any change in death penalty sentiment in a state where 268 lethal injections have been carried out since 1982. "It's just the ebb and flow of the appeals process," said Richard Dieter, director of the Death Penalty Information Center. "Occasionally there'll be delays, and then suddenly you'll see a surge of executions."

 Just as Beazley's case highlights the debate over death sentences for juveniles, the case of Johnny Joe Martinez illustrates another frequent complaint about capital punishment: Execution opponents argue that death row inmates -- including Martinez, 29, who is scheduled to die on Wednesday -- often are denied meaningful court review of their convictions because of laws meant to speed the appeals process.

 A condemned prisoner's appellate lawyer routinely files what is called a "habeas corpus" petition, asking Texas's Court of Criminal Appeals to throw out the inmate's conviction and sentence based on alleged constitutional violations during the trial. In the past, some Texas death row inmates waited for years until experienced appellate lawyers volunteered to prepare their habeas petitions.

 But under a 1995 law signed by then-Gov. George W. Bush, a habeas lawyer is court-appointed for a newly condemned prisoner and has 180 days to file a petition. Any issues the lawyer neglects to raise are usually lost forever -- because later, during the federal appeal, under federal law, judges are allowed to consider only claims that were made at the state level, except in rare instances.

 Although the law promises that court-appointed habeas lawyers will be competent, Texas's death row files are littered with poorly researched, sometimes garbled habeas petitions hastily prepared by lawyers who later conceded that they were not trained to handle such complex cases. Among those who made such admissions are the initial, court-appointed habeas lawyers for Martinez, Beazley and Gary Etheridge, a third Texas prisoner who is due to be executed soon.

 In the lawsuit filed today, the three inmates' current lawyers said: "These cases represent only the tip of the iceberg. The Court of Criminal Appeals is frequently confronted with stark evidence that the attorneys it has appointed in other state habeas cases are failing to perform basic and necessary tasks, yet the court stubbornly refuses to intervene to correct the situation."

 The state has yet to respond to the complaint, which asks a federal judge to halt the three scheduled executions until the lawsuit is settled.

 Martinez's case is just one example of how "a thin writ," as lawyers call it, can permanently foreclose a prisoner's chance of raising appellate issues that might result in a new trial or sentence.

 After Martinez was convicted of fatally stabbing a store clerk in 1993, his court-appointed appellate lawyer filed a habeas petition that was just 5 1/2 pages long. "The trial record is never quoted," one judge angrily wrote. "Only three cases are cited in the entire application, and no cases are cited for the two claims for relief. Those claims comprise only 17 lines with three inches of margin."

 The state court turned down the cursory appeal in 1998, and Martinez was barred from raising new issues in U.S. District Court, where a judge in 1999 acknowledged his hands were tied.

 "Pitiful, pitiful, pitiful," said the judge, adding later, "I don't know what's holding up the state of Texas from giving competent counsel to persons who have been sentenced to die."

Martinez's new lawyer, David R. Dow, a University of Houston law professor, is still fighting for a hearing on what he said are legitimate appellate issues in the case. But time is running short.

"It's the bottom of the ninth," he said. "And there are two outs."