Supreme Court Boots Texas Death Row Appeal

(CN) - The Supreme Court on Monday declined to take up the appeal of a Texas death row inmate who claims, among other things, that the state used an unconstitutional sentencing procedure in deciding his fate.

Lester Bower Jr. was sentenced to death for the Oct. 8, 1983, murders of four men in an aircraft hangar outside Sherman, Texas. Each of the four men had been shot multiple times, and an ultra light aircraft was missing.

Bower admitted he contacted at least one of the victims to express interest in buying the aircraft, but denied being the murderer, even after incriminating evidence was found in his possession. His attorneys have always maintained their client was railroaded, but they've never gained traction with this assertion. Over the years, they've lost appeal after appeal.

Then, a week before his conviction became final, the Supreme Court held in Penry v. Lynaugh, that Texas' sentencing procedure impermissibly prevented a jury from considering or acting on potentially mitigating evidence.

Bower petitioned the Federal Court for habeas corpus, but his petition was denied and the 5th Circuit upheld the ruling, although in a separate case, it said that it had erred in Bower's case. Based on that admission, a Texas trial court ruled Bower should get a new sentencing proceedings, but that decision was reversed by the Texas Court of Criminal Appeals.

Bower then petitioned the Supreme Court for a writ of certiorari. In the meantime, he was scheduled to be executed on February 10. The Supreme Court stayed his execution so it could consider his appeal.

While a majority of the court's nine justices ultimately decided not to hear Bower's case, three of the justices said they would have heard the cases.

Justice Stephen Breyer wrote the dissent on behalf of himself and Justices Ruth Bader Ginsburg and Sonia Sotomayor. In it, he also leaned heavily on Penry.

"Penry's holding rested on the fact t hat Texas' former special issues did not tell the jury 'What "to do if it decided that [the defendant] ... should not be executed"' because of his mitigating evidence ... Bower's sentencing procedure suffered from this defect just as Penry's did. The distinction that the Texas court drew between Penry's and Bower's evidence is irrelevant. ... The trial court and the Fifth Circuit both recognized that Bower's Penry claim was improperly rejected on that basis."

As a result, the dissenting justices said, Bower is entitled to a new sentencing proceeding.

"I recognize that we do not often intervene only to correct a case-specific error," Breyer wrote. "But the error here is glaring, and its consequence may well be death. ... In these circumstances, I believe we should act and act now. I would grant the petition and summarily reverse the judgment."

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