In an impor­tant rul­ing, the Texas Court of Criminal Appeals has thrown out the death sen­tence of Kenisha Berry, who was sen­tenced to death in 1998 for the mur­der of her infant son, Malachi. The 5 – 4 deci­sion stat­ed that Jefferson County pros­e­cu­tors mis­stat­ed the spe­cial issue pre­sent­ed to jurors regard­ing Berry’s like­li­hood of being a future dan­ger to soci­ety, one of the key ques­tions Texas jurors con­sid­er when they are delib­er­at­ing a death sen­tence. Berry’s attor­neys argued that there was insuf­fi­cient evi­dence of future dan­ger­ous­ness because Berry, a for­mer cor­rec­tions offi­cer and day care work­er, had no pre­vi­ous crim­i­nal record and defense experts tes­ti­fied that she had a low risk of com­mit­ting future acts of vio­lence, espe­cial­ly with­in the con­fines of prison. The court’s major­i­ty opin­ion, writ­ten by Judge Cheryl Johnson, agreed.

Johnson wrote, ​“While the state quite cer­tain­ly proved that (Berry) showed a pat­tern of keep­ing the chil­dren sired by one man and dis­card­ing the chil­dren sired by oth­er men, it did not prove that any oth­er stim­u­lus led to a vio­lent or dan­ger­ous act in any oth­er con­text.… We rarely reverse a judg­ment on a claim of insuf­fi­cient evi­dence to sup­port a find­ing that the defen­dant will be a dan­ger in the future, and we do not do so light­ly. In this case, we under­stand the jury’s deci­sion in response to the death of one infant and the aban­don­ment of anoth­er, even if that deci­sion is not sup­port­ed in law.”

Berry was one of 10 women on the state’s death row, and she will now serve a life term in prison for her crime. Texas has exe­cut­ed three women since it resumed exe­cu­tions in 1982. Next month, the state has sched­uled the exe­cu­tion of Cathy Henderson, who was giv­en the death penal­ty for the mur­der of an infant she was babysitting. 

(Dallas Morning News, May 23, 2007). See Women.

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