Delay Granted to Texas Woman Hours Before Scheduled Execution

In 1997, Kimberly McCarthy of Texas was convicted of forcing her way into Dorothy Booth’s home under the pretext of borrowing some sugar, then killing 70-year-old Booth.  McCarthy proceeded to use Booth’s credit cards and attempted to pawn Booth’s wedding ring before she was caught.

McCarthy was found guilty of Booth’s murder and sentenced to death by a Dallas County jury in 1998, but the Texas Court of Appeals later overturned her conviction after they discovered she had no attorney present during questioning following her arrest.  McCarthy was tried again in 2002, and was once again sentenced to death. Double jeopardy did not apply in this situation because it was a retrial of a conviction that was reversed on appeal.

McCarthy would have been the first woman put to death in the United States in three years; in fact, she would have been the thirteenth woman to be executed since the United States Supreme Court allowed capital punishment to resume in 1976.  However, just hours before she was to be sent to the chamber on January 29, 2013, Dallas State District Court Judge Larry Mitchell granted her a reprieve based on the possibility of racial bias in her jury selection.  Dallas County prosecutors chose not to contest the motion to reschedule.  McCarthy’s defense counsel now has until April 3, 2013 to prove that racial bias occurred in the state’s jury selection.

So what happens between now and April 3?

McCarthy’s attorneys have been given the “opportunity to present evidence of discrimination in the selection of the jury that sentenced Kimberly McCarthy,” said Maurie Levin of the University of Texas capital punishment clinic and one of McCarthy’s attorneys.  If there is enough evidence to prove that racial bias did occur, McCarthy’s sentence will be reduced to life without parole.  If not, she will remain on death row and her execution will be rescheduled.

McCarthy’s defense counsel noted that out of thirteen jury members on the panel for McCarthy’s trial, all but one were white.  The population of Dallas County is almost one-quarter black.  The defense is ready to produce clear evidence that the prosecution excluded jurors based solely on their race and thus violated the U.S. Constitution.

According to The Guardian, Dallas County District Attorney Craig Watkins was the first African-American to be elected as a district attorney in Texas.  Watkins has recently “called for new law to be introduced that would allow death row inmates to appeal their sentences on grounds of general racial discrimination as underlined by statistics.”

A similar law, the Racial Justice Act (RJA), was passed several years ago by North Carolina, and just last month a judge erased the death sentences of three convicted killers and gave them life without parole as a result of the new act.

While the RJA has resulted in success for some inmates, a revision was recently adopted making it more difficult for attorneys to provide evidence that a jury was improperly selected on the basis of race.  Originally, when the act was passed in 2009, general statistics about race-based jury selections sufficed as evidence.  Now, defendants must show that prosecutors discriminated against them in their particular case, which makes it much more difficult to prove racial bias.

According to The Huffington Post, the North Carolina court hearings to “potentially change the three inmates’ sentences under the RJA at times proved volatile, with accusations of racism, interruptions from the gallery and a charge that the statute is ‘McCarthyist’ in its approach to racial discrimination.”  However, Bryan Stevenson, the executive director of the Equal Justice Initiative and an expert on racial inequities said the RJA was not enacted to lessen the weight of crimes.

“There is no dispute that some of these crimes are awful and tragic and terrible,” Stevenson told The Huffington Post.  “If you are excluding people from serving on juries on the basis of race, if you are compromising the integrity of the system of justice by engaging in systematic racial bias, then I don’t believe you deserve to execute people or that you should execute people.”

In an interview with The Los Angeles Times, Watkins announced that the RJA would soon be introduced in Texas.  In the meantime, he has created a conviction integrity unit and has also proposed other legislation giving defendants the opportunity to appeal on the basis of race.

McCarthy was not granted another appeal, but instead was given what the court is calling a “delay.”  Because Texas does not have legislation in place that sets forth specific standards for showing racial discrimination, it is unclear exactly what the defense counsel plans to present as evidence.

The most troubling issue in McCarthy’s case is not necessarily the number of white jurors, but the fact that eligible non-white jurors were excluded from serving by the state.  “These facts must be understood in the context of the troubling and long-standing history of racial discrimination in jury selection in Dallas County, including at the time of Ms. McCarthy’s trial,” Levin told MSN news.

Watkins has called for new law in Texas that will allow inmates to appeal their sentences on general grounds of racial bias.  However, if Texas chooses to take a stricter stance on determining racially based jury selection like North Carolina has recently done, looking at the general statistics will not be of much help.  The defense counsel will have to find enough sufficient evidence in the record from McCarthy’s trial to prove that racial bias occurred specifically in her jury selection.

Although Watkins is a strong advocate for legislation like the RJA, he is also a strong advocate of a fair judicial system.  He said the sixty-day delay was appropriate, but if no irregularities are discovered, he is ready to move forward with the execution.

McCarthy is hopeful that her defense team will be successful.  In response to how she felt about being granted a reprieve, she told prison agency spokesman John Hurt that she’s happy, commenting, “[t]here is still work to be done on my case.”



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About Rebecca Lopes, Senior Staff Writer (14 Articles)
Rebecca Lopes served as a Senior Staff Writer for the Campbell Law Observer. She is a graduate of North Carolina State University where she earned a degree in Communication with a focus in Media and a minor in Journalism. During law school, Rebecca interned at the Cumberland County District Attorney’s Office, Tally and Tally Law Firm and at The Richardson Firm, all in Fayetteville. She was also a member of Phi Alpha Delta and a case manager for the Campbell Law Innocence Project. Rebecca graduated from Campbell Law School in May 2014.
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