Unconstitutional Procedure May Not Halt Execution

Mark Robertson, who is to be executed in Texas tomorrow, is a member of a small fraternity of death row prisoners there. They were sentenced from 1989 to 1991 by juries under a procedure that the United States Supreme Court has held to be unconstitutional. . .

[F]rom the 1970's, when the death penalty was reinstated in Texas, until 1989, Texas juries were generally asked only two questions at the sentencing phase of a capital trial: Was the killing deliberate? Does the defendant pose a danger to others?

If the jurors unanimously answered yes to both, the judge was required to impose a death sentence.

The Supreme Court had long held, however, that jurors must be able to take account of mitigating evidence. In 1989, the Supreme Court ruled that the Texas procedure was flawed because it did not allow the jury to consider mitigating factors of mental retardation and child abuse. But the Texas Legislature did not revise the procedure until it reconvened 1991.

The Fifth Circuit, which affirmed Robertson's sentence, has the biggest capital caseload in the nation. Many blame this for the Circuit's often quick decisions -- many with no oral argument and little analysis in the opinions -- in death cases. Read all about it here from The New York Times.

UPDATE: A Texas state appellate court has stopped Robertson's execution, the AP reports here. (via How Appealing)