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Texas Weighs Its Life or Death Decisions

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Times Staff Writer

Kelsey Patterson was babbling again, this time about somebody taking his money, just as the state of Texas was about to take his life.

To most in the execution chamber that May night, Patterson’s last words sounded like those of a madman. To J. Gary Hart, his lawyer of seven years, they merely matched the rest of his delusions -- that he had been programmed by remote control, that the beans on his plate were talking to him, that his own lawyers were trying to kill him.

“None of it was new to me,” Hart said. “That’s what was so disturbing.”

Prodded in part by what some saw as the troubling execution of Patterson, a schizophrenic who killed two people, Texas has in recent months begun considering ways to fine-tune the application of the death penalty -- an unusual step for the state that executes the most inmates in the nation.

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Although many states have inched away from capital punishment in recent years, Texas executes an inmate every 12 1/2 days, on average. The state is responsible for about a third of the nation’s executions.

But some officials here who favor capital punishment -- sheriffs, judges, prosecutors and state legislators -- are calling for a more measured approach. They want to give juries the option of sentencing defendants to life in prison without the possibility of parole.

Texas juries currently have two options when a defendant is convicted in capital murder cases: life in prison with the possibility of parole after 40 years and death by lethal injection. Texas is one of three states that applies the death penalty but does not allow juries to sentence a defendant to life in prison without parole.

“Texas is Texas,” said state Sen. Eddie Lucio of Brownsville, a Democrat who supports the death penalty. “We used to hang horse thieves, and hang ‘em high -- make a public display of it. That has carried over, and we have established a type of reputation. But we have a golden opportunity to show the rest of the country that we are a compassionate state.”

Lucio said he planned to introduce a bill this fall that would give juries the option of sentencing defendants to life in prison without parole. A spokeswoman for Gov. Rick Perry said he believed that the proposal deserved consideration and could be a way to “improve the criminal justice system.”

Similar plans have been floated unsuccessfully in Texas in past years. But Patterson’s execution has led to new support for the proposal.

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The Texas Board of Pardons and Paroles had voted 5-1 to recommend to Perry that the state commute Patterson’s sentence to life in prison.

Hart had argued that executing Patterson, considering his mental deficiencies, would not “serve either the retributive or deterrence goals of capital punishment.”

The board sent its recommendation to Perry, who decided against commutation less than an hour before Patterson was scheduled to die. Perry feared that because Texas did not offer a life-without-parole option, Patterson could one day be paroled.

Some prosecutors have protested the proposed sentencing measure, saying they would be less likely to secure a death penalty. But most say they sense that the public would like to see the change made.

“It is my thought that the public wants to have that option,” said Anderson County Dist. Atty. Doug Lowe. “I think it’s something that will happen.”

Residents of Huntsville, a city between Houston and Dallas that is home to Texas’ execution chamber, are conflicted about the proposal.

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On a recent afternoon, Randy W. Cooper, 52, a taxi driver, and Eddie Marsh, 62, owner of a uniform business, wiled away the time chatting on a town square bench. Huntsville is a city peppered with pawnshops, churches and mobile home parks, home to seven prison units and Sam Houston State University. When school is in session, about half the town’s residents are either university students or inmates.

Cooper feared that crime rates would soar if any effort was made to revise the death penalty and said suggestions that innocent people may be on death row didn’t bother him.

“For every guy that didn’t do it, there are 1,000 who did,” he said. “Most of them are just animals. Anybody that doesn’t like the death penalty, tell them to walk through death row and open all the doors and let them all out. I think they’d change their mind.”

Marsh, however, said Texas was ready for a more moderate approach to capital punishment.

“The numbers are just horrible,” he said. “We’ve got a stigma because of that.”

Texas isn’t planning anything dramatic, such as following Illinois’ decision to commute the sentences of death row inmates last year after determining that the capital punishment system was flawed, including a disproportionate number of executions among minorities and the poor.

Support for executions remains strong in Texas, a state where political candidates, Democrats and Republicans alike, routinely campaign by pledging that they have more zeal for the death penalty than their opponent.

Former Gov. Ann Richards, for instance, a Democrat who was vigilant in protecting a tough-on-crime image, repeatedly rejected clemency petitions from women who had killed their abusive husbands. George W. Bush, while campaigning for Texas governor in 1994, still criticized Richards for failing to execute people quickly enough. More than 150 people were executed during Bush’s five-year tenure as governor.

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But there is evidence that the state’s attitude toward the death penalty is changing.

After rejecting every clemency petition that came its way for nearly five years, the Texas parole board has recommended that the sentences of three inmates on death row be commuted to life prison terms. Perry accepted one recommendation, rejected another and is weighing the third.

Increased scrutiny has been placed on executions of people with low IQs. Last month, for instance, the U.S. Supreme Court determined that a jury was not permitted to give adequate weight to evidence that a murder suspect was mentally retarded. Justice Sandra Day O’Connor scolded appellate judges for failing to give “careful enough review to these ... cases.”

Robert Tennard, 41, has been on death row since 1986, when he was convicted in a killing in Houston.

Tennard’s parole officer, the only witness called in his defense at trial, testified that Tennard had an IQ of 67, three points below the threshold for what is considered mentally retarded.

The Supreme Court has outlawed executing the mentally retarded, calling it cruel and unusual punishment, and jurors in Texas are now allowed to give more weight to a person’s mental capacity. Tennard is one of 456 people on death row in Texas.

And in Plainview, a prosecutor who won a death sentence, the sheriff who investigated the case and a judge banded together recently to petition Perry to commute the sentence. In June, a federal judge threw out the death sentence and sent the case back to the state, and last week the man was sentenced to life in prison instead.

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Joe Lee Guy, 43, was convicted of acting as a lookout during the shooting death of a storeowner in a 1993 robbery. He had received a death sentence, while the two men who went into the store during the robbery received life prison terms.

Guy’s court-appointed attorney has acknowledged drug and alcohol abuse; his former secretary testified that he had snorted cocaine on the way to the trial.

An investigator hired to find witnesses who would ask jurors to spare Guy’s life produced none, though Guy had stumbled through a childhood of abuse and poverty. The investigator instead befriended the mother of the victim. The mother declared the investigator the sole beneficiary of her will, and the investigator helped her prepare to testify against Guy.

“The facts of this case are unprecedented,” the prosecutor, sheriff and judge wrote to Perry, “and have made clear to us that Guy’s death sentence should not stand.”

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