Texas Must Fix Uneven Application of Death Penalty

Editorial Board

AUSTIN AMERICAN-STATESMAN

Tuesday, November 25, 2003

Even those who favor the death penalty agree that it should be applied as evenly as possible. But to do so is extremely difficult, because prosecutors in one county might pursue the death penalty while those in another county, given the same case, might not.

Prosecutors in Jefferson County have put their own twist on this problem in the case of Walter Bell Jr., 49, who in 1974 murdered a Port Arthur couple, Ferd and Irene Chisum. (He confessed to the murders.) Their twist is this: When it was to their advantage in securing a death penalty sentence in the past, the prosecutors argued that Bell was mentally retarded. But now that it has become a legal disadvantage, they will argue that he was not mentally retarded.

Nothing about Bell has changed; he certainly has not gotten any smarter sitting on death row for almost 28 years now. What did change was the U.S. Supreme Court, which ruled last year that it violates the Constitution's bar on cruel and unusual punishment to execute a convict who is mentally retarded.

As reporter David Pasztor noted in an article in Monday's editions of the Austin American-Statesman, a six-member team of state experts -- state experts, not the defendant's -- unanimously concluded that Bell had mental retardation. And at one of his trials, a state prison psychologist testified that he had retardation.

Yet, Rodney Connerly, the Jefferson County assistant district attorney who is now handling the case, dismisses the retardation findings as just "based on numbers," and said the fact that Bell could commit the killings shows he is not mentally retarded.

In short, the Jefferson County prosecutors are hell-bent on executing Bell; the truth about his mental state is irrelevant and the requirements of the law are something to be evaded.

Again, that's the problem with the death penalty. It is not applied uniformly. It is not applied fairly. And prosecutors will even reverse themselves logically and factually in their zeal to win.

So Bell, who has been on death row longer than any other inmate in Texas, will for the fourth time go on trial for the murder of Ferd Chisum. Once more, the central issue will not be his guilt but his sentence.

Bell's case also is indicative of the failure of the Legislature this year to rewrite state law to reflect the Supreme Court's ruling, and the failure of the executive branch, including the governor, to review the inmates on death row to see which ones should not be there because of mental retardation.

The state's evidence in the past has helped establish that Bell is mentally retarded. Now prosecutors want to argue precisely the opposite. The state should not be allowed to have it both ways.