updated 12/21/2004 6:39:55 AM ET 2004-12-21T11:39:55

Texas remained the most active death penalty state in 2004 with 23 executions, down from a year ago and about average for the past decade. But legal experts and death penalty opponents suggest there are signs that increased judicial scrutiny is giving pause to juries and prosecutors considering capital punishment.

Earlier this year, the Supreme Court overturned two Texas death sentences — LaRoyce Lathair Smith and Robert Tennard — because jurors were not told of the defendants’ learning disabilities.

The court also lifted the death sentence of Delma Banks, condemned nearly 25 years ago, and criticized Texas officials and lower courts, saying prosecutors hid crucial information that might have helped Banks’ case.

“I think there’s a national trend toward greater scrutiny of the death penalty,” said Jordan Steiker, a University of Texas Law School professor. “One thing that obviously affects both juries and prosecutors is an increasing sensibility that the Supreme Court is looking over their shoulder at the American death penalty.”

Just this month, the high court for a second time heard arguments on whether a nearly all-white jury unfairly convicted and sentenced to death a black man, Thomas Miller-El, for the 1985 slaying of a Dallas motel clerk.

“We’ve been here almost 20 years,” Miller-El said from death row. “Innocence almost doesn’t matter at this point when they’ve taken your whole life away.”

Ernest Willis, 59, understands that. In October, he walked out of prison a free man — 18 years after he was arrested, convicted and condemned for the deaths of two women in a house fire.

Prosecutors decided not to retry him after a federal judge threw out his conviction in July, saying authorities concealed evidence and needlessly drugged him during his trial.

“It’s the small things everybody takes for granted,” he said of what he missed while in prison. “And when that’s taken away from you, it’s hard.”

Since executions resumed in 1982, Texas has executed a total of 336 inmates.

'Sense of hope' for death penalty opponents
At the state court level, the Texas Court of Criminal Appeals — considered by capital punishment opponents a rubber stamp for death sentences — ordered three men removed from death row because the prisoners are mentally retarded and ineligible for execution under a recent Supreme Court ruling.

The Texas Board of Pardons and Paroles, also a target of death penalty critics, recommended in May that mentally ill convicted murderer Kelsey Patterson be spared. Gov. Rick Perry, however, rejected the recommendation and Patterson was executed.

Then late last month, the panel sent a recommendation to the governor that Frances Newton, who would have been the first black woman executed in Texas, be spared for four months while her new lawyers investigate her case. Perry said he found no evidence of innocence but agreed to the delay.

The reprieve came two weeks after condemned prisoner Troy Kunkle avoided the death chamber for a second time this year when the Supreme Court stopped his execution about 40 minutes before he was scheduled to die. His lawyers raised concerns that jurors were not allowed to fully consider Kunkle’s troubled background in deliberations nearly 20 years ago.

“There seems to be, at the end of the year, a sense of hope among those of us who have concerns about the death penalty system,” said Dennis Longmire, a Sam Houston State University criminal justice professor.

He said the stays of Kunkle and Newton were encouraging, but they may give death penalty opponents false hope. When the Supreme Court lifted Kunkle’s reprieve, for example, a judge set a new execution date in January.

At least nine executions already are scheduled for 2005, including four next month.

“You can’t run from your mistakes forever,” said James Porter, who has dropped his appeals. He is volunteering to die Jan. 4 for killing another prison inmate 3½ years ago.

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