WASHINGTON – The Supreme Court let stand a Texas death sentencing law yesterday, but four dissenting justices said it “unquestionably tips the scales” against defendants.

The four justices, the court’s most liberal, questioned Texas’ practice of preventing jurors from being told how long convicted murders would remain behind bars if given life sentences instead of death.

The unusually strong comments came as the high court rejected the appeal of Arthur Brown Jr., a Texas Death Row inmate convicted of the drug-related killings of four people in Houston in 1992.

Brown’s attorneys were prevented from telling jurors that he would serve at least 35 years in prison if given a life sentence instead of death.

“The situation in Texas is especially troubling,” wrote Justice John Paul Stevens, whom Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined in dissent.

“The Texas rule unquestionably tips the scales in favor of a death sentence that a fully informed jury might not impose. ” Of the 59 executions in the United States this year, 31 have been in Texas. Since the Supreme Court ended a four-year legal moratorium on capital punishment in 1976, 417 people have been executed – 138 of them in Texas.

There are now 434 men and seven women on Death Row in Texas.

During his trial, Brown’s attorneys, Tom Moran of Houston and Patricia Nasworthy of Menard, had asked the judge to let them inform the jury that a life sentence would keep Brown behind bars for at least 35 years. They also wanted to show evidence that convicted murderers, after such an extensive prison term, are unlikely to kill again.

Both requests were denied.

Stevens said the ruling conflicts with a 1994 high court ruling in a South Carolina case that said defendants in murder cases could inform juries at sentencing that there is little or no chance that they will be paroled if given a life sentence.

He noted that, in Texas, juries can be told of the likely length of a defendant’s prison term before sentencing in noncapital felony cases.

“In Texas, the jury determines the sentence to be imposed after conviction in a significant number of noncapital felony cases,” Stevens wrote. “In those . . . cases, the jury is given an instruction explaining when the defendant will become eligible for parole.

“Thus, the Texas Legislature has recognized that, without such an instruction, Texas jurors may not fully understand the range of sentencing options available to them.

“Perversely, however, in capital cases, Texas law prohibits the judge from letting the jury know when the defendant will become eligible for parole if he is not sentenced to death. ” Under Supreme Court rules, four votes are needed to accept a case.

But in issuing their opinion, the four justices did not explain why they did not force a review. They urged further study by lower courts instead.

“My primary purpose in writing . . . is not to comment on the merits of Brown’s constitutional claims,” Stevens wrote for the four, “but to reiterate the important point that the court’s action . . .

does not constitute either a decision on the merits . . . or an appraisal of their importance. ” Nevertheless, Stevens wrote a lengthy footnote showing that polls from various states show that jurors informed about parole eligibility are less likely to vote for the death penalty.

Ward Tisdale, a spokesman for Texas Attorney General Dan Morales, said he believes that the full court backed up the Texas law by rejecting Brown’s appeal.

“Obviously, the state prevailed in this case,” he said. “It’s a victory for the state. We have a sound system in the state of Texas.

If there are any errors in a Death Row case that is what higher courts are there for. ” Brown was sentenced to death in November 1993. The Texas Court of Criminal Appeals upheld his death sentence.

Houston police found the bodies of three men and one woman in a blood-soaked house June 21, 1992. All four had been tied up with torn linens and shot in the head.

Two others were also tied up and shot, but they survived and testified against Brown and two other defendants who were tried and convicted separately.

Prosecutors said Brown and the other men shot the six people because they wanted to eliminate them as business partners in a drug ring that shuttled cocaine from Houston to Tuscaloosa, Ala.

Nasworthy said the jury, because of Brown’s age and other factors, might not have given him a death sentence had it known that he would be in prison for more than three decades.

“I just think that had those people known that he would be locked up until he was almost 60, at least, it would have made a big difference,” she said.

“Basically, this was drug dealers shooting drug dealers. ” In his opinion, Stevens noted that surveys in several states have shown that informing jurors of sentences would have an impact.

A study in Nebraska, for example, showed that while 80 percent of people support capital punishment, only 51 percent prefer the death penalty when a defendant would be in prison for 25 years or more.

October 21, 1997

Edition: FINAL AM Section: NEWS Page: 1

Author: MICHAEL D. TOWLE; Star-Telegram Writer – Washington Bureau

Copyright 1997 Star-Telegram, Inc.