High Court Split Over Texas Death Cases

The Associated Press
Wednesday, January 17, 2007; 10:10 PM

WASHINGTON -- The Supreme Court appeared closely divided Wednesday in considering pleas to throw out death sentences for three Texas murderers in arguments held on the 30th anniversary of the resumption of capital punishment.

The cases were heard on the same day Texas executed its 381st prisoner since the high court reinstated capital punishment. That total is far more than in any other state.

Nine death penalty opponents were arrested on the court's plaza when they unfurled a 30-foot banner reading "Stop Executions."

Inside the courtroom, the justices, lawyers and the audience were unaware of the protest.

The three cases involve problematic instructions to juries that were choosing between a sentence of death or life in prison.

LaRoyce Lathair Smith was before the court for the second time. Smith was sentenced to die for the murder of Jennifer Soto, a former co-worker at a Taco Bell who was stabbed and shot in a failed robbery.

In 2004, the justices overturned Smith's sentence because jurors were not allowed to consider sufficiently the abuse and neglect Smith suffered as a child.

The Texas Court of Criminal Appeals reinstated the death penalty, however, saying any errors involving the jury instructions were harmless.

Jordan Steiker, Smith's lawyer, urged the justices not to allow the state court to throw up a procedural hurdle that would, in effect, allow the state to sidestep the Supreme Court ruling.

But at least four justices seemed willing to accept the state court's reasoning. "I would say the way they approached it in this case is the more desirable way," Chief Justice John Roberts said.

In the other consolidated case heard Wednesday, the 5th U.S. Circuit Court of Appeals has upheld the death sentences of Brent Ray Brewer and Jalil Abdul-Kabir.

They raised similar questions about the jury instructions, which Texas no longer uses.

Edward Marshall, a Texas assistant attorney general, said 47 inmates on Texas' death row were sentenced under the rules the state abandoned in 1991.

There have been 1,060 executions in the United States in the past 30 years. The first of those was Gary Gilmore, who was killed by a Utah firing squad on Jan. 17, 1977.

The Supreme Court invalidated state death penalty laws in 1972, but an informal freeze already was in effect. The last execution had taken place in 1967.

The court reinstated capital punishment in 1976 and Gilmore's execution followed six months later.

Shortly after the court session ended Wednesday, the justices received and quickly denied an emergency request to block the execution of Johnathan Moore, a self-described fascist who killed a San Antonio police officer. Moore's execution was scheduled for Wednesday evening.

The cases are Smith v. Texas, 05-11304, Brewer v. Quarterman, 05-11287, and Abdul-Kabir v. Quarterman, 05-11284.

© 2007 The Associated Press