Thirty-One Minutes from Death

By Michael S. Serrill

Are legal procedures in capital cases lethally arbitrary?

James David ("Cowboy") Autry, 29, spent much of last Tuesday talking calmly with a Presbyterian minister and a Roman Catholic priest at the Huntsville, Texas, prison known as The Walls. At 6:30 p.m. he was served a final meal; he had chosen an unusually mundane one of hamburger with mustard, French fries, iced tea, water, and nothing else. His court-appointed attorney, Charles Carver, arrived, and they talked of his legal prospects. But both knew there was little hope. The day before, the U.S. Supreme Court had turned down his request for a stay. The time for his execution neared. "He was prepared," recalls Carver.

Just before 11, Autry took the ten paces from his cell to a small, green-painted room and climbed voluntarily onto a wheeled hospital gurney. He was to be the second man in the U.S. executed by injection, and after he was strapped down, a prison employee inserted an IV tube into each arm. A harmless saline solution began to flow, while executioners prepared to release a fatal dose of Pavulon, potassium chloride and thiopental sodium. He lay there waiting to die at the appointed time of 12:01.

Throughout that same day, lawyers from the American Civil Liberties Union had been frantically busy. Led by Stefan Presser in Marshall, Texas, the attorneys, who were newly involved in the case, saw their petitions turned down by two state courts, then by a federal district court. Presser asked the Fifth Circuit Court of Appeals to consider his motion for a stay. With no time for the parties to get together, the hearing was convened through a 68-minute conference call, with three appeals judges listening from Louisiana, Mississippi and Texas while Presser and Assistant State Attorney General Leslie Benitez talked from Marshall. The appeals court seemed mindful of the Supreme Court's growing desire to cut short apparently groundless last-minute challenges to death sentences. Shortly after 10:30 p.m. Texas time, the court rejected the petition in an eight-page opinion.

At the U.S. Supreme Court, Justice Byron White, who oversees the Fifth Circuit, was standing by for a possible new plea in the Autry case. While the circuit court's opinion was being read into a Supreme Court tape recorder, Alvin Bronstein, executive director of the A.C.L.U.'s National Prison Project, was sitting in the lobby writing out in longhand an application to stay the execution. As he wrote, the lights flickered on and off, a consequence of the drain on the building's electrical system caused by the refrigeration of historic documents in glass cases in the lobby. Only 51 minutes before the scheduled execution, a clerk handed Bronstein's two-page petition to Justice White. Twenty minutes later he issued an order for a stay. The news was flashed to Huntsville, but officials there waited until almost midnight before telling Autry about the reprieve. He was not unplugged from the IVs until 12:40. Still showing no visible emotion, he then got off the gurney and walked out of the death chamber.

Autry thus became the most vivid symbol to date of the seemingly endless legal confusion and complication that have characterized attempts to carry out the death penalty since the Supreme Court revived it in 1976. Recently, the court has sought to expedite the labyrinthine appeals process, but to little avail as yet. The Autry case seemed to be typical of how the Justices would like to see such cases handled. In 1980, Autry was sentenced to death for murdering Store Clerk Shirley Drouet, 43, in Port Arthur, Texas, when the mother of five asked him to pay $2.70 for a six-pack of beer. "Here's your $2.70," he said and shot her between the eyes. After the conviction, Autry's attorney had appeals turned down in state and federal courts. When his case reached the Supreme Court last Monday (it had been there once before), Autry's application raised a welter of arguments. But the court declined to grant a stay because fewer than four Justices indicated a belief that the issues would prove significant enough to merit a formal review. Autry would thus have died without a chance to file a fully argued petition.

Why did Justice White, who voted with the majority on Monday, grant a stay a day later? The answer is that the A.C.L.U. offered a new argument: Texas did not give Autry a "proportionality" review to determine whether his sentence was comparable in severity to similar cases in the state. Such reviews are already held in some states, and the Supreme Court has agreed to hear an appeal from California this term to determine if proportionality reviews are constitutionally necessary in every state that has capital punishment. "I cannot say that the issue lacks substance," wrote White in ordering a stay for Autry. White added a clear plea to Congress for a statute requiring prisoners to state all their federal claims in their first habeas corpus petition to the federal courts. But since that is not now the rule, the Justice concluded that he was "compelled" to issue the stay.

While Justice White's order will prolong the life of Autry and many other death-row inmates until the proportionality issue is decided, it does nothing to make future executions less likely. Says Texas Civil Liberties Union Executive Director John Duncan: "What we got was a short-term victory. I'm not at all optimistic about the long-term implications." Texas Attorney General Jim Mattox was not happy either. "It just seems to me that these considerations could have been made earlier," he said, "before you have a man strapped to the table with the saline solution going into his arms."

Certainly, the Autry affair did nothing to improve the Supreme Court's reputation for orderly decision making. And it left some death-penalty proponents impatient. Outside the Huntsville prison Tuesday night, a crowd made up partly of boozy collegians had gathered (one placard: WE PAY FOR OUR BEER; NOW IT'S TIME FOR AUTRY TO PAY FOR HIS), and news of the stay was greeted with boos and chants of "Kill him! Kill him! Kill him!" Candle-bearing opponents of capital punishment applauded the outcome. Still, critics on both sides of the issue were disturbed by a process that appears to have become lethally arbitrary. "Here was the same human being before the same court," said Presser after catching his breath. "On Monday, because he didn't invoke the right words and the right theory, the court was going to let him die. Then he said the right words, and the court gave him life."

--By Michael S. Serrill. Reported by Hays Corey/Washington and David S. Jackson/ Houston

With reporting by Hays Gorey, David S. Jackson This file is automatically generated by a robot program, so viewer discretion is required.