WASHINGTON, Aug. 13 With three justices taking the rare step
of disqualifying themselves because of their ties to a murder victim's
son, an evenly divided Supreme Court today turned down a request for
a stay of execution from a Texas inmate who is scheduled to be put
to death on Wednesday.
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
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
"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
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
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