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In a case that’s drawn international attention, the Texas Court of Criminal Appeals stayed the execution of Napoleon Beazley on Aug. 15 only hours before he was scheduled to die for a murder committed when he was 17. By all accounts, this is not the firmly conservative Court of Criminal Appeals of the late 1990s, where last-minute death penalty appeals were almost certainly denied. Attrition at the court, including the departure of longtime Presiding Judge Michael J. McCormick in December 2000, has created a moderate shift at the CCA. David Dow, a University of Houston Law Center professor, says the court has “surprised” the death penalty community in Texas three times in the last four months by granting stays within two days of inmates’ scheduled executions. CCA Clerk Troy Bennett says the all-Republican court has granted five stays of execution — including one to allow an inmate to undergo DNA testing under a new state law — in the term that began on Sept. 1, 2000. “That’s an indication the Court of Criminal Appeals is looking at some of these cases more seriously than it has in the last five or six years,” Dow says. “Two years ago, the Court of Criminal Appeals was a non-existent court in death penalty cases,” he says. “You didn’t get reversals in that court in habeas cases. Now it’s a little bit different.” In a 6-3 split, Judges Lawrence Meyers, Tom Price, Sue Holland, Paul Womack, Cheryl Johnson and Charles Holcomb voted for the stay. Dissenters included Presiding Judge Sharon Keller and Judges Mike Keasler and Barbara Hervey. The CCA had denied Beazley’s direct appeal, which is automatic in death penalty cases, in February 1997. His habeas appeal was denied in January 1998. Tim Floyd, a professor at Texas Tech University School of Law, says the court’s decision to stay Beazley’s execution was “stunning” given that the U.S. Supreme Court on Aug. 13 voted 3-3, with three justices abstaining, against the request for a stay. But legal experts disagree about the court’s reason for granting the stay in Beazley’s case. The two-page order in Ex Parte Napoleon Beazley does not specify which of the 10 issues raised in Beazley’s petition the judges found compelling. “The main issue we’re raising is that Napoleon’s death sentence is illegal because he was under 18 when the murder was committed,” says Walter Long, one of the Austin lawyers who represents Beazley. “I think Beazley was stayed for the age issue,” Dow says. “My opinion is the court is going to address the age issue in a more direct way than ever before.” Smith County District Attorney Jack Skeen did not return a phone call seeking comment by press time. RECUSAL REASONS Beazley, now 25, was convicted of murdering a Tyler businessman during an attempted carjacking in 1994 when he was 17. The victim, 63-year-old John Luttig, was the father of 4th U.S. Circuit Court of Appeals Judge J. Michael Luttig. The younger Luttig had clerked for Justice Antonin Scalia and advised Justices Clarence Thomas and David Souter during their confirmation hearings, prompting all three to abstain from voting on Beazley’s case. Neil McCabe, a professor at South Texas College of Law, suggests that the court may not be interested in the Beazley case itself but is trying to give the nation’s highest court more time to decide what to do about it. “Essentially, they’re stepping in and saying, ‘We’re not going to let him [Beazley] be executed while his case is pending in the U.S. Supreme Court,’ ” McCabe says. Floyd is doubtful that’s the reason. “The three who recused themselves are not going to get back in the case,” he says. “I’d be even more surprised if the three votes for not granting the stay would grant cert to hear the case.” Beazley’s petition for writ of certiorari is still pending before the U.S. Supreme Court. A number of legal experts and lawyers say they believe Beazley was granted a stay because of a case pending before the CCA. Ex Parte Anthony Graves deals with the issue of ineffective counsel on a habeas writ. Austin criminal-defense attorney David A. Schulman says presumably the six judges who voted to stay the execution wanted to consider granting relief on a Graves claim under the proper circumstances. “I think that’s all this case means at this point,” Schulman says. The CCA stayed the executions of Gary Wayne Etheridge in November 2000 and Michael Patrick Moore in March of this year. Graves claims were raised in both of their cases, Long says. Roy Greenwood, the Austin criminal-defense lawyer who represents Graves, says there are easily 15 to 30 more death row inmates who may have issues that would entitle them to relief if their lawyers had done any kind of investigation at all. At the center of the controversy is a law passed by the Texas Legislature in 1995 that requires the state to provide a lawyer for a death row inmate in habeas appeals. The same law limits an inmate, in most instances, to only one application for a state habeas writ. If the CCA holds in Graves that an inmate has a right to claim ineffective assistance of counsel in habeas proceedings, “then you’ve got another black hole in the writ system,” says Chuck Mallin, chief of the appellate section at the Tarrant County District Attorney’s Office. But Greenwood says the CCA appointed some lawyers who did not know what they were doing to represent inmates in habeas writ proceedings and they “screwed up.” El Paso attorney Robin Norris, who represented Beazley in the writ proceedings, has admitted making mistakes in an affidavit filed with the CCA. “I acknowledged that the investigation of Mr. Beazley’s case was inadequate to discover all of the potentially important issues affecting the legality of his conviction and death sentence,” Norris, a former CCA staff attorney, says in the affidavit. Norris says the investigator he hired did not follow his instructions in conducting the investigation. Among other things, Norris says, the investigator failed to talk to his client’s co-defendants, Cedric and Donald Coleman, who testified that Beazley had said he wanted to know what it would be like to kill or hurt someone — testimony that made Beazley appear to be a cold-blooded killer. The Coleman brothers recanted those statements in a July 13 affidavit. According to Norris, he and his partner, Gary Hart, another former CCA staff attorney, were appointed to 10 habeas cases in December 1996. “I know you cannot do 10 of those cases all at one time,” says Greenwood, who specializes in direct appeals and habeas writs. Another unusual aspect of Beazley’s case is a letter that 114th District Judge Cynthia Kent of Tyler wrote to Gov. Rick Perry requesting that Beazley’s sentence be commuted from death to a life sentence. Kent was the presiding judge for Beazley’s trial. Elaine Holmes, Kent’s court administrator, says the judge “cannot make a statement on any case that is pending in the court.”

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