They had to awaken Billy Wayne White to give him the news. He had sat, sound sleep, snoring loudly, in front of the jury while his lawyer pleaded for leniency.
he pleas did no good, and White, rubbed "Sleeping Billy" by the prosecutor, awoke to find himself sentenced to die by lethal injection.
He thus joined 71 others on Texas' Death Row, waiting for the day, if it over comes, when a medical technician will fit a catheter into a vein to deliver a fatal dose of sodium thiopental.
Two of the Texas inmates have some within four days of their scheduled executions, but they, like White, now have at least months and perhaps years to live. For despite the execution of Gary Gilmore in Utah one year ago, there have been no others in the United States since, and none is likely soon.
Gilmore's execution before a firing squad on Jan. 17, 1977, was the nation's first since 1967, and there was speculation that it would begin a wave of them. But it has not, and in fact if gilmore ahd not been so eager to die, he would be alive today -- only last month did the Utah Supreme Court uphold the state's capital punishment law.
Lawyers on both sides of the death penalty question say there have been no additional executions because of the lenthy appeals procedures open to every convict on death row. And at the same time, a major new challenge to the constitutionality of the death penalty is also being mounted.
"Gary Gilmore deliberately elected not to use the appellate process, and it shortened the time when the legal issues were put to rest," says Utah Attorney General Robert B. Hansen. "We think it's going to take at least a year, probably two years, to get a decision" on when there will be more executions in Utah.
The state now has five people on Death Row and a sixth expected soon.
"Even the most advanced cases are no where near execution," says Joel Berger with the NAACP Legal Defense and Educational Fund. "Only one case is as far as the U.S. Court of Appeals or habeas corpus. The process works slowly."
"It will probably be another year before there's an execution in Texas," says Anita Ashton, an assistant attorney general. "The defense attorneys are trying to buy time.As long as the courts wart to review them, there is nothing the state can do."
The death penalty has long been under attack as being cruel and unusual punishment and thus prohibited by the Constitution. But the U.S. Supreme Court has refused to rule that way. Instead, in a series of decisions in the late '60s and early '70s, the court found fault with the way capital punishment was applied, forcing states to redraw, sometimes more than once, their death penalty laws.
Currently, 32 states have penalty laws in effect, and there are 421 prisoners on Death Row. And today unlike the past, most of them are white.
But civil rights lawyers still see a racial pattern to the way the death sentenced is handed down, a pattern they believe the courts will find constitutionally unacceptable. Today, they say, it is the race of the victim, rather than the defendant, that is a determining factor.
"The death penalty is almost exclusively reserved for killers of white people," said John Carroll, an attorney with the Southern Poverty Law Center in Birmingham, Ala. "Prosecuters and juries don't see killers of black people as reason to impose the death penalty."
This constitutional challenge in one of the issues in the case that has advanced farthest up the appellate ladder, a Florida case that has reached the Fifth U.S. Circuit Court of Appeals in New Orleans.
The issues that can be raised on appeal are of course not limited to challenging the death penalty. The appellant, is free to raise any issue that he thinks will help him, including points that could come up in almost any legal case.
In Texas, for example, the death penalty law was upheld by the U.S. Supreme Court in 1976, the high court declined to hear an appeal by one prisoner out of the state appeals court, so he raised other issues on an appeal to a federal district judge.
The judge subsequently ruled in favor of the prisoner, saying he should have been told that the contents of a psychiatric interview could be used against him at sentencing.
While noting that any executions may be months or years off, Ashton and Berger cite the possibility of another Gary Gilmore seeking a quick kill. "In the case of non-consensual executions, I don't anticipate any (soon)," said Berger. "Consensual is a whole different bag," he added that "the fact of no further executions" since Gilmore's "really illustrates what a travesty the Gilmore case really was."
Says Hansen, the Utah attorney general, "I think the flood gates are going to open (for more executions) but not so soon as people expected."