Maro Robbins Express-News
Seldom do judges on Texas' top criminal court side with death row inmates, but last month they did so twice.
And last week they did it twice again, this time in decisions issued only a day apart.
Sparing a mother who smothered her infant and delaying the executions of three other convicts, including a San Antonio kidnapper, the rulings aroused speculation that something new might be afoot at the Texas Court of Criminal Appeals.
"The last few weeks have been striking," said Jordan Steiker, co-director of the Capital Punishment Center at the University of Texas School of Law.
The court's willingness to reconsider so many death sentences in such a short span is, some believe, a direct response to the exacting scrutiny and repeated criticisms that the U.S. Supreme Court has aimed at Texas' handling of capital cases.
The high court in recent years has overturned several Texas death penalties and, in the term alone, the justices have ruled in favor of three inmates condemned by the state.
On the heels of those criticisms from Washington, the Texas court has in at least one way clearly followed the Supreme Court's example.
Its recent flurry of decisions halting executions or overturning death sentences all rested on the narrowest majority of five judges — the same slim margin that typically settles death penalty questions at the high court.
That was the decisive margin in April when the justices in Washington found that the Texas court had repeatedly ignored flaws in the sentencing instructions that once guided juries in capital cases.
About two weeks later, with his execution only days away, the case of Jose Angel Moreno, a kidnapper who murdered a San Antonio college student, reached the court in Austin.
He too complained about faulty jury instructions, but the judges in Austin already had rejected this argument years earlier. At first, the court said it couldn't reconsider his case.
Then, a day later, hours before the execution, five judges agreed to delay Moreno's death so that they could revisit his case in light of the newest Supreme Court decision.
Additional rulings favoring death row inmates piled up in the weeks that followed. Though the prisoners raised different legal questions, they all won support of the same five judges.
Rethinking vs. yielding
Death penalty opponents like Steiker praised the majority for seriously weighing the issues rather than simply searching for ways to endorse the inmates' executions.
Others worried that the judges had surrendered to political expediency.
"One could wonder if they're now trying to err on the side of more liberal rulings to avoid Supreme Court review," said John Bradley, Williamson County district attorney.
Weeks after Moreno was returned to his cell to await further review, the court turned its attention to Kenisha Berry, a mother who smothered her 4-day-old infant, disposed of his body in a trash bin and then, five years later, abandoned another newborn in a ditch.
Concluding that Berry posed a danger only to her own children, the majority found that prosecutors failed to prove that execution — rather than life imprisonment — was necessary to neutralize her threat.
Then, on Monday, the judges again confronted an infant's death in the case of Cathy Lynn Henderson, a babysitter convicted of murdering a child in her care.
This time, the rhetoric boiled when the majority stopped Henderson's execution and ordered a trial court to consider new evidence that the baby's death might have been accidental.
Judge Michael Keasler called the result "breathtaking" and, after denouncing his colleagues' analysis of the rules governing the reopening of old cases, added an attack on their previous decision to spare Berry.
"In Berry, and again today, I detect a tendency in the majority of this Court to minimize the culpability of criminals who victimize the most vulnerable of human beings — our children," he wrote.
Others, such as the prosecutor Bradley, wondered if the rulings favoring Berry and Henderson rested less on the victims' youth than on the inmates' sex.
Executions of women have drawn extensive attention from both courts and the public, though Texas has put three females to death since the state resumed capital punishment in 1982.
Apparently undeterred by Keasler's rebuke, the judges just two days later ordered a new sentencing for Irving Alan Davis, an El Paso rapist. It found the trial judge had unfairly allowed the state's expert — but not the defense's witnesses — to address the life-or-death question of whether Davis would be dangerous in the future.
As in the other rulings, Judges Paul Womack, Tom Price, Cheryl Johnson, Charles Holcomb and Cathy Cochran formed the majority while their colleagues Keasler, Sharon Keller, Barbara Hervey and Lawrence Meyers dissented.
Cochran, a former prosecutor, defense lawyer and law professor, described the string of inmate victories as a fluke — a coincidental cluster of four cases that warranted closer examination.
The judge said she hadn't changed her mind about the death penalty and hadn't voted with the majority because of a change of heart.
Limited by rules against discussing the court's internal deliberations, Cochran was however quick to acknowledge the obvious influence from Washington.
"I follow the law as the Supreme Court gives it," she said. "And I always try to do that when the Supreme Court speaks, no matter who it favors."
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