MORRIS COUNTY, Texas (CBSDFW.COM/AP) — A Texas death row inmate condemned for fatally shooting an 82-year-old man nearly three decades ago is scheduled to die by lethal injection Wednesday, as the nation’s busiest death penalty state prepared to resume executions following a five-month delay during the coronavirus pandemic.
Prosecutors say Billy Joe Wardlow killed Carl Cole during a June 1993 robbery at his home in Cason, about 130 miles east of Dallas in the East Texas piney woods, near the Louisiana and Arkansas borders.
Wardlow was 18 at the time of the slaying, and his attorneys have argued that one of the issues Texas jurors have to determine before imposing a death sentence — whether a defendant will be a future danger — can’t be reliably made for people younger than 21 because scientific research has shown their brains are still developing. Wardlow’s attorneys have asked the U.S. Supreme Court to stop his execution, saying he committed a “poorly-thought-out and naively-motivated robbery” to steal a truck so he could run away with his girlfriend.
“The science really supports precluding the death penalty for anyone under 21 because brain development is still happening,” said Richard Burr, one of Wardlow’s attorneys.
Prosecutors argue there was no constitutional error when the jury considered the issue of future danger and that society has long used the age of 18 as the point where it draws the line for many distinctions between childhood and adulthood.
“Wardlow senselessly executed elderly Carl Cole to steal his truck, something that could have been taken without violence because the keys were in it,” according to a petition filed with the Supreme Court by the Texas attorney general’s office.
Wardlow, now 45, also has two other petitions before the Supreme Court — one over claims of ineffective assistance of counsel and another tied to the dismissal of a previous appeal in state and federal court. On Monday, the Texas Board of Pardons and Paroles denied a request to delay Wardlow’s execution or commute his sentence to life in prison.
If Wardlow’s execution is carried out, it would be the first in Texas since Feb. 6. Missouri was the first state in the U.S. to carry out an execution following pandemic-related shutdowns. No other executions have taken place in the U.S. since that one on May 19.
A judge moved Wardlow’s execution date from April 29 to July 8 after Morris County District Attorney Steve Cowan requested the change citing the statewide disaster declaration due to the virus.
In Texas, the number of confirmed COVID-19 virus cases and hospitalizations have risen in recent weeks. But state prison officials say safety measures they’ve put in place will help executions to go forward.
Six executions scheduled in Texas for earlier this year were postponed by the courts because of the outbreak. Two others, including one scheduled execution last month, were delayed over different issues.
Wardlow’s petition on brain development before the Supreme Court has its roots in a 2005 decision in which the high court banned the execution of offenders younger than 18 when they commit crimes. The court pointed to research showing that character and personality traits of juveniles are not fully formed like adults.
Since that ruling, scientific research has established that the brains of those between the ages of 18 and 20 are functionally indistinguishable from someone who is 17, making their executions a violation of the constitutional protection from cruel and unusual punishment, Burr said.
In a clemency petition to the Texas Board of Pardons and Paroles, Burr argued that as Wardlow grew older on death row, “kindness and compassion have been his defining characteristics.” Two jurors who condemned Wardlow have asked the board to commute his sentence to life without parole.
A group of academics and professionals in neuroscience and brain imaging are also asking the Supreme Court to stop the execution, saying the prediction of Wardlow’s future dangerousness “was scientifically unfounded when made and refuted by his character today.”
But the attorney general’s office points out that Wardlow had previously threatened to shoot an officer and threatened jail staff and other inmates after his arrest. They also note that in his written confession, Wardlow said Cole “was shot like an executioner would have done it.”
Wardlow would be the third inmate executed this year in Texas and the seventh in the U.S. Last month the Supreme Court granted a reprieve to a Texas inmate scheduled to die for fatally stabbing an 85-year-old woman more than two decades ago.
(© Copyright 2020 CBS Broadcasting Inc. All Rights Reserved. The Associated Press contributed to this report.)