Seeing A Shift

Houston is back in the death penalty spotlight, but is our bloodthirsty rep now overblown?

Houston is back in the death penalty spotlight, but is our bloodthirsty rep now overblown?

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Lethal-injection gurney in Huntsville Photo by Paul Buck/Britannica Online Encyclopedia

A glance at the Harris county legal docket for this week seems to confirm Houston's hang-'em-high reputation: Two men are set to begin unrelated trials in which prosecutors are asking for the death penalty.

It sounds like business as usual if you look at the defendants on death row in Texas — there are currently 104 from Harris County, solidly a third of the Texas death row population.

But despite the confluence of the trials, the death penalty in Houston has been undergoing a major shift, as documented by legal scholar Jeffrey Toobin in The New Yorker. As Toobin writes, Houston for years had a deserved reputation as the death penalty capital of America, with Harris County alone responsible for more executions than any other state except the rest of Texas. But in 2010, Harris County sent only two men to death row, and only five have been sentenced to death since 2008.

What caused the sudden decline? Toobin points out that there are national trends in the works, including a falling crime rate over the last decade and a wave on DNA exonerations that have made juries more wary of imposing the death penalty.

The biggest factor in Texas is probably the 2005 law instituting a potential sentence of life without parole. Before that option, juries had to either opt for the death sentence or risk a convicted killer someday being released on parole. A quick glance at Harris County capital convictions currently being appealed shows that life without parole has become by far the most popular sentence for a capital crime.

Toobin points to two other local factors that have made a difference in the Houston legal framework: District Attorney Pat Lykos, who replaced Chuck Rosenthal after his resignation in 2008, and the influence of the Gulf Region Advocacy Center, or GRACE.

Under Lykos' tenure Houston still prosecutes plenty of capital cases — 28 in 2010 and almost 60 scheduled in 2011. (The case load isn't doubling, a jury trial schedule is something like a starting offer, continually subject to change and delay.) But of those cases, Lykos and her staff only sought the death penalty in two trials in 2010, and won it in both.

Toobin takes a closer look at GRACE and its executive director Danalynn Recer. Recer has pioneered new death row defense strategies in mitigation by digging deep to find ways to present a defendents entire life to a jury, including potential abuse or mental deficiencies to create enough empathy and sympathy for a jury to keep them alive.

As Harris County prosecutor Jim Leitner told Toobin,

People like Danalynn will openly give you their mitigation evidence as soon as they have it. And it has caused us to look at these cases harder. We are never going to focus on that stuff, their medical histories, their MRIs, unless they show it to us first. We then go to our experts and ask them, 'What does it really mean?' We listen to those things ... It's hard to convince people generally that when someone has done something ghastly he deserves anything other than being treated the same way. But if anyone can do it, Danalynn can."

GRACE is not involved with the two capital cases about to go to trial, however. The prosecution of Joseph Francois Jean, who is accused of beating two teenaged girls in the Baytown home of his ex-girlfriend before setting the building on fire, and Tedderick Batiste, who allegedly shot a man in the course of a robbery before leading police on a high speed chase, could, if a guilty verdict is returned, remind jurors why Texans like the death penalty so much to begin with.

Does the death penalty have a place in America? It seems clear that it will always be sought, at least in the most extreme cases. The Supreme Court has essentially codified opinion that the death penalty is legally valid, and public opinion hasn't swayed.