The justices, Antonin Scalia, David H. Souter and Clarence Thomas, all have professional relationships with J. Michael Luttig, a prominent federal appeals court judge whose father was murdered in a botched carjacking in Texas in 1994.

Mr. Luttig clerked for Justice Scalia and advised Justices Souter and Thomas in confirmation hearings.

Legal scholars said the court now found itself in a situation that the founding fathers hoped to avoid by creating a Supreme Court with an odd number of members.

Because a majority is needed for a stay of execution, the court's 3-to-3 decision was a defeat for the death row inmate, Napoleon Beazley.

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer voted to grant the stay, the court's three-paragraph order said. Chief Justice William H. Rehnquist, and Justices Anthony M. Kennedy and Sandra Day O'Connor voted to deny it.

An hour after the court's action, the Texas Board of Pardons and Paroles turned down Mr. Beazley's request for clemency by a vote of 10 to 6. The six votes for clemency is one of the highest numbers that a death row applicant has received from the board, which has granted clemency in only one capital case since Texas resumed executing inmates in 1982.

Mr. Beazley's case has drawn international attention, especially from groups opposed to executing offenders who commit their crimes before the age of 18, including the European Union. Mr. Beazley was 17 when he shot John Luttig, a Tyler, Tex., businessman, twice in the head in his driveway during a botched carjacking.

One of the parole board members, Filiberto Reyna, said he voted with the majority in denying commutation because he said the brutality of the crime demanded a death sentence.

He discounted arguments by Mr. Beazley's lawyers that key testimony in the trial had been invalidated by the decision of two co-defendants to recant part of their statements.

"I'm convinced it was premeditated, I'm convinced he knew what he was doing," Mr. Reyna said. "It's extremely unfortunate that we have such young members of our society involved in such offenses, and I believe that it's a very poor commentary on our society. But I still believe the nature of the offense warrants the punishment imposed in this case."

Another board member, Paddy Burwell, said he voted in favor of commutation because of his concerns about the fairness of the trial convinced him that the death penalty was too harsh. "I don't think he's innocent," Mr. Burwell said. "I don't think he claims to be innocent. But if you consider all the factors, it's not the right thing to do."

Mr. Beazley still has pending a motion before the Supreme Court to review his case on the merits, including the question of whether the constitution bars the execution of someone who was under the age of 18 when he committed the crime.

It takes four members of a nine- member Supreme Court to agree to review a case on its merits. But with three justices having recused themselves, the six-member court will be proceeding on largely uncharted waters as it decides how many votes are necessary to grant Mr. Beazley's motion.

"The court has been haunted in the past by situations like this," said Richard Pildes, a former Supreme Court clerk and now a professor of constitutional law at New York University Law School. "One of the reasons the court has an odd number of members is precisely to avoid situations like this, where major issues are decided by a tie vote, particularly in capital cases," he added.

A vote of a majority of justices is required for a stay of execution, which would be five in normal cases, and four in this case, with only six justices sitting. In 1985, the court denied a stay of execution to a Georgia death row inmate, Roosevelt Green, on a 4-to-4 vote, with Justice Lewis F. Powell Jr. not voting because of illness. That a man could be executed on a tie vote brought tremendous criticism on the court, Mr. Pildes said.

Today, the head of the NAACP Legal Defense and Educational Fund Inc. and a veteran death penalty lawyer, George Kendall, said, "A tie shouldn't go to the executioner."

The problem for the court is compounded, Mr. Pildes and other legal scholars said, when there are not enough votes for a stay, but enough votes on the court to hear a case on the merits. Only four votes are required for the court to grant a motion to review a case.

This sets up the possibility that there are enough votes to hear a case on the merits, but not enough to stop the execution so that such a hearing can held. Mr. Pildes said that in the past justices have recognized that this would cast the Supreme Court in a bad light, and so some justices have therefore voted for a stay even when they did not think the inmate's assertions were meritorious.

The rule on how many votes are needed for a review on the merits is set by the court, and because the situation of the court having only six members is so rare, Supreme Court officials and legal scholars were scrambling today to determine how many votes would be needed in this case. In a 1971, with two vacancies on the court, Justice William O. Douglas expressed his opinion that only three votes were needed to grant a petition for review, in a case involving constitutional questions about the rights of a Jehovah's Witness to avoid military conscription.

Legal scholars and death penalty lawyers said today that they were not aware of an instance in which a single justice had disqualified himself in a death penalty case, let alone three.

A Supreme Court spokesman said a federal statute governed justices in recusal matters. The law says a justice "shall disqualify himself in any proceeding in which his impartiality might reasonably be called into question."

Death penalty lawyers said it was likely that the three justices who voted for a stay, Justices Stevens, Ginsburg and Breyer, would also vote to hear the case on the merits.

The constitutional question is whether executing a juvenile offender is cruel and unusual punishment in violation of the Eighth Amendment. In 1989, the Supreme Court, in Stanford v. Kentucky, ruled 5 to 4 that it did not. The majority opinion was written by Justice Scalia.

Mr. Beazley's lawyers also want the court to rule that the United States is bound by international law and treaties not to execute a juvenile offender. In the last decade, only six other countries have executed a juvenile offender — Congo, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen — a report by Amnesty International said.

Separate from the Supreme Court, Mr. Beazley's case will now be reviewed by Gov. Rick Perry. Under Texas law, Mr. Perry has only two options now that the parole board has rejected commutation; he can either grant a one-time 30-day stay or allow the execution to proceed. Mr. Long, the appellate lawyer, said he hoped that Mr. Perry would be swayed by the dissenters on the parole board. "I do think that the governor should look closely at the fact that there were six board members who voted for a commutation in the case and 10 who voted not to," Mr. Long said.

He also said he planned to file a motion with the Texas Court of Criminal Appeals seeking a stay.

Copyright 2001 The New York Times Company

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