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Will the Supreme Court Kill The Death Penalty This Term?

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Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

Texas executes Coy Wesbrook

Wesbrook Coy
Coy Wesbrook | Photo by Michael Graczyk/AP
AUSTIN, Texas (Reuters) - Texas executed a man on Wednesday who fatally shot five people in 1997 with a hunting rifle in a killing spree launched when he found his ex-wife having sex with other men, a prison official said.

Coy Wayne Wesbrook, 58, was pronounced dead at 08:04 p.m. CST -- 18 minutes after the lethal dose of the sedative pentobarbital began taking effect.

The execution was delayed about 90 minutes after a death penalty opponent's late appeal that was rejected by the Texas Court of Criminal Appeals hours earlier appeared to be headed to a higher court. The appeal sought another review of claims that Wesbrook was mentally impaired and ineligible for the death penalty under U.S. Supreme Court rulings.

Before being executed, the 58-year-old Wesbrook apologized profusely to relatives to some of his victims who witnessed the punishment.

Wesbrook was convicted of murdering his second ex-wife, Gloria Coons, and Antonio Cruz on Nov. 13, 1997 at the woman's Channelview, Texas, apartment.

According to trial testimony, Wesbrook and Coons married in 1995 and divorced the following year, although the couple occasionally lived together.

Wesbrook moved out of their shared apartment in the summer of 1997, but on November 12 of that year, he had lunch with Coons, and she expressed interest in possible reconciliation.

When he arrived at her apartment that evening, he found Coons with four others. Wesbrook testified he felt humiliated when Coons exposed her breasts to the group; she and one of the men then had sex.

Wesbrook testified that his ex-wife then said she would have sex with a second man, at which point Wesbrook  attempted to leave.

Cruz, he told jurors, followed him and took the keys to his truck. He retrieved a hunting rifle and followed Cruz back into the residence, ostensibly to get his keys. Once inside, he testified, the group harassed him, with someone throwing beer on him.

Wesbrook testifed he "went off," and fatally shot everyone in the apartment, including Ruth Mooney, Anthony Rogers and Kelly Hazlip. Afterward, he announced to neighbors what he had done and waited for police.

During the punishment phase after his conviction, Wesbrook's lawyers presented testimony that, about the time of the killings, the former security guard had learned that his 9-year-old daughter had been sexually abused by his first wife's boyfriend.

A county inmate, who testified that Wesbrook had plotted killing his first ex-wife and her boyfriend, said on cross examination that Wesbrook  had seemed remorseful for killing Coons and the others.

A psychologist testified that Wesbrook suffered from major depression with an underlying dependent personality disorder. Additionally, she said, he had poor coping skills and "very much was at the end of his rope" at the time of the murders.

Wesbrook's sister testified that he had left school after the eighth grade. Former co-workers and supervisors testified that he had been a dependable worker.

For the murders of Gloria Jean Coons and Anthony Cruz, Wesbrook was convicted and sentenced to death in 1998. 

On two occasions, the Texas Court of Criminal Appeals requested the trial court to reexamine the Texas prisoner’s claims of diminished mental abilities.

According to Atkins v. Virginia, a Supreme Court case from 2002, executing people with intellectual disabilities is cruel and unusual punishment—but states are allowed to define intellectual disabilities for themselves. Texas’ longtime standard has been based on IQ, with anyone with an IQ of under 70 being seen as disabled.

Wesbrook appealed his conviction, with his lawyers arguing that he was incapable. Prosecutors hired a psychologist named George Denkowski to test Wesbrook’s capacity. In 2006, Denkowski submitted a report finding that Wesbrook had an IQ of only 66. But a few months later, he filed an updated report saying that based on “non-intellectual factors,” Wesbrook’s “actual adult general intelligence functioning is estimated to be of about 84 IQ quality.”

Denkowski, who examined 16 death penalty defendants and found them all mentally capable for execution, was later reprimanded by the Texas State Board of Examiners of Psychologists for ignoring standard testing practices. In a 2011 settlement with the board, he paid a fine and agreed to never testify in a criminal case again. “There’s absolutely no scientific basis to his procedure,” Marc Tassé, an Ohio State professor, told The New York Times.

After Denkowski’s ouster, the trial court that handled Wesbrook’s case again denied his claim of mental incapacity in 2014 and didn’t allow for a new psychiatric evaluation. “It’s like trying to put the toothpaste back in the tube,” Vernay said of Denkowski’s determination.

After review, the trial court could not find enough evidence to support the claims, so the Court of Criminal Appeals sustained the conviction and sentence. Don Vernay, Wesbrook’s attorney, says the court’s decision was wrong, as his client met the criteria for mental impairment and was ineligible for the death penalty.

“This execution should not happen, but it’s Texas, man,” Vernay said.

Wesbrook devoted his time in his last days on death row to studying his Bible, reading religious books and listening to gospel shows on the radio.

"I'm looking forward to it," he said of his seemingly imminent death.

All of Wesbrook's appeals, raising such issues as purported mental retardation and the admissibility of testimony concerning his desire to kill trial witnesses, have come to naught.

Two days before his execution, the Texas Board of Pardons and Paroles rejected 7-0 Wesbrook's petition to commute his death sentence to life in prison.

Death row inmate Coy Wayne Wesbrook becomes the fourth person this year to be executed in Texas by lethal injection and the 535th in Texas since the U.S. Supreme Court reinstated the death penalty in 1976. Two more are scheduled for later this month.

Sources: Houston Chronicle, Allan Turner; Inquisitr, Fusion, Reuters, Fresno Bee, March 9, 2016

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