Texas exe­cut­ed Robert Jennings (pic­tured) on January 30, 2019 for the 1988 mur­der of Houston police offi­cer Elston Howard, amid ques­tions as to his eli­gi­bil­i­ty for cap­i­tal pun­ish­ment and the con­sti­tu­tion­al­i­ty of his death sen­tence. Jennings was con­vict­ed under a sen­tenc­ing pro­ce­dure that the U.S. Supreme Court had struck down short­ly before his tri­al in 1989 because it did not ade­quate­ly allow jurors to con­sid­er evi­dence sup­port­ing a sen­tence less than death. The jury instruc­tions giv­en in his case to redress that error were also lat­er declared uncon­sti­tu­tion­al, and 25 Texas death-row pris­on­ers had their death sen­tences over­turned as a result. However, Jennings’s court-appoint­ed tri­al and appeal lawyers failed to raise the issue in Texas state court and the Texas fed­er­al courts refused to con­sid­er the issue on the grounds that the state court lawyers had pro­ce­du­ral­ly default­ed the claim. The U.S. Supreme Court lat­er changed fed­er­al habeas cor­pus pro­ce­dures to per­mit review if inef­fec­tive state-court rep­re­sen­ta­tion caused the default. But when Jennings’s fed­er­al lawyers attempt­ed to raise the issue again, the Texas fed­er­al appeals court ruled on January 28 that its pri­or deci­sion had not been based on pro­ce­dur­al default and that it had already reject­ed the claim. Without com­ment, the Supreme Court issued an order on January 30 declin­ing to hear Jennings’s case, and he was executed.

In chal­leng­ing Jennings’s death sen­tence, his cur­rent lawyers also argued that both Jennings’s tri­al lawyer and his pre­vi­ous appel­late attor­ney pro­vid­ed inad­e­quate rep­re­sen­ta­tion. Jennings’s tri­al attor­ney was defend­ing two death-penal­ty cas­es at the same time and did not inves­ti­gate sig­nif­i­cant mit­i­gat­ing evi­dence that includ­ed Jennings’s his­to­ry of brain dam­age from a car crash and an injury with a base­ball bat, an IQ of 65, and intel­lec­tu­al and adap­tive deficits asso­ci­at­ed with his low IQ. Trial coun­sel also failed to present read­i­ly avail­able evi­dence of Jennings’s impov­er­ished, abu­sive, and neglect­ful upbring­ing: he was born as the result of a rape, and his moth­er fre­quent­ly told him she did not want him. His orig­i­nal appeal lawyers also failed to raise these issues. Edward Mallett, one of Jennings’s cur­rent lawyers, said, ​“There has not been an ade­quate pre­sen­ta­tion of his cir­cum­stances includ­ing men­tal ill­ness and mental limitations.”

U.S. District Judge Lynn Hughes took the unusu­al step ear­li­er in January of ask­ing the state to con­sid­er sup­port­ing clemen­cy for Jennings, cit­ing the 30-year delay between the crime and the sched­uled exe­cu­tion. Jennings’s attor­neys argued in his clemen­cy peti­tion that the state had grant­ed clemen­cy last year to a white death-row pris­on­er with few­er mit­i­gat­ing cir­cum­stances. ​“Denying a com­mu­ta­tion tru­ly will demon­strate that race, class, and priv­i­lege mat­ter in deter­min­ing who is exe­cut­ed in Texas,” attor­ney Randy Schaffer wrote. ​“This would send a ter­ri­ble mes­sage to the world.”

Two oth­er exe­cu­tions sched­uled for January 2019 were not car­ried out. Elwood Jones’s January 9 exe­cu­tion date was resched­uled for April 21, 2021 by Ohio Governor John Kasich. The Texas Court of Criminal Appeals stayed Blaine Milam’s January 15 exe­cu­tion to per­mit fur­ther lit­i­ga­tion “[b]ecause of recent changes in the sci­ence per­tain­ing to bite mark com­par­isons and recent changes in the law per­tain­ing to the issue of intellectual disability.”

(Juan A. Lozano and Michael Graczyk, Texas inmate exe­cut­ed for Houston officer’s death, Associated Press, January 30, 2019; Keri Blakinger, Houston cop killer exe­cut­ed in Huntsville, three decades after offi­cer slay­ing, Houston Chronicle, January 31, 2019.) Read Robert Jennings’s peti­tion for writ of cer­tio­rari. See Executions.

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