SAN ANTONIO (AP) – Death penalties have become a rarity from juries in some parts of Texas in the wake of a string of prison inmates — including some on death row — who have been exonerated by DNA and other new evidence.
The last death sentence returned by a Bexar County jury in San Antonio came in 2009, when only one defendant was condemned in that county, the San Antonio Express-News reported. In the 11 years ending in 2006, Bexar County juries meted out at least 24 death sentences.
“We don’t go get the death penalty just because we can. It’s a very serious decision-making process,” First Assistant District Attorney Cliff Herberg told the Express-News.
Recent state and national surveys continue to show strong support for the death penalty, but less so when the option of life imprisonment without parole is offered to juries. Texas began offering that option in 2005. That, Herberg said, “definitely changed the dynamics” in Bexar County.
As for appeals, “I think you do see the courts are saying, no matter what, let’s test it,” Herberg said.
By way of illustration is a recent federal court reprieve of Anthony Bartee hours before his scheduled May 2 execution for a 1996 San Antonio slaying. That shows judges are choosing to err increasingly on the side of caution when death row inmates appeal for new DNA testing of evidence in their cases.
“The courts are more cautious and most people think they should be, there is a question about it,” Professor John Blume of the Cornell University Law School told the Express-News.
“I think it’s moved the pendulum to at least introduce an element of skepticism in capital cases,” said Professor John Schmolesky of the St. Mary’s University School of Law in San Antonio.
That is only appropriate, said civil rights attorney Jeff Blackburn, head of the Innocence Project of Texas. The nonprofit advocacy group says DNA testing has led to the exoneration of more than 280 people nationally, most of them over the past 12 years and 17 of them death row inmates. The new National Registry of Exonerations shows that at least 890 inmates — perhaps as many as more than 2,000 — have been falsely convicted nationally since 1989.
“We have to err on the side of finding out every fact that we can,” Blackburn told the newspaper.
However, prosecutors say DNA-based appeals can be used purely to stall executions. In the case of Bartee, said Assistant District Attorney Rico Valdez, “He wasn’t convicted with DNA evidence but by his own behavior.”
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