Robert Jennings has been on Texas’ death row for nearly 30 years. On Wednesday, the 61-year-old is set to die in the nation’s first execution of 2019.
Jennings was sentenced to death in the 1988 murder of Houston police officer Elston Howard. According to court records, Jennings walked into an adult book store to rob it, and Howard was there arresting the store clerk for a municipal violation. The clerk testified that Howard had no time to even reach for his gun before Jennings shot him multiple times, killing him.
The lengthy stretch of time between Jennings’ 1989 sentencing and his scheduled execution shines a light on the complications that can arise during the appeals process in the face of constantly evolving death penalty law. In their current attempt to halt Jennings’ execution, his lawyers are zeroing in on changes in how death penalty juries weigh “mitigating evidence”— factors that can lessen the severity of the punishment that are largely based on the defendant’s background, like an abusive childhood or intellectual disability.
An appeal to the U.S. Supreme Court points out that, at the time of Jennings’ trial, Texas juries were not told they could opt for a sentence of life in prison rather than death if they believed the defendant’s background or character warranted mercy — a key aspect of death penalty trials now.
Rather, the so-called “special issue” questions Texas juries were required to answer after finding someone guilty of capital murder asked them to determine whether the murder was deliberate or provoked — and whether the defendant was a potential future danger.
At the punishment portion of Jennings 1989 murder trial, where the jury was supposed to answer those questions, the prosecution brought up Jennings’ long rap sheet — he had been to prison multiple times for aggravated robbery, and had been released on parole only two months before Howard’s murder, according to court records. In his confession to police after his arrest, he also confessed to several other robberies in the two-month span.
Meanwhile, Jennings’ lawyers only brought forth a Harris County jail chaplain, who said Jennings wasn’t “incorrigible,” in reference to potential danger posed. The jury also heard Jennings’ recorded confession, where he admitted he had been drinking and using drugs and expressed remorse for the shooting.
But days before the trial, the U.S. Supreme Court had ruled in an unrelated case that a death penalty jury must be specifically directed to determine whether mitigating evidence warrants sparing the defendant from execution. In an attempt to address the ruling at the last minute, Jennings’ jurors were told after closing arguments to consider any mitigating evidence already introduced and, if they found it appropriate, to answer against the death penalty in one of the already-existing questions.
The jury was unconvinced, and Jennings was sentenced to death. It wasn’t until more than a decade later that the Supreme Court again took up the issue and determined that telling a jury to weigh mitigating evidence by overwriting an existing special issue is not constitutional.
Jennings’ lawyers have argued that the jury’s inability to properly weigh his drug use and how remorseful he was for Howard’s death warrants him a new trial with the new special issue questions, which now include a question on mitigating evidence. They’ve also said if the trial counsel had known to raise other mitigating evidence, including mental deficits and a troubling childhood, the jury would have reached a different conclusion.
“It gets extremely complicated because the law evolves and then the question is: Do new decisions get applied retroactively?” Randy Schaffer, one of Jennings’ lawyers, told The Texas Tribune.
But not every death sentence handed down before juries were instructed to consider mitigating factors was tossed after the Supreme Court ruling.
Rather, the nation’s highest court said it depended on the nature of the evidence presented at trial. So far, the courts have ultimately said Jennings’ remorse doesn’t make the cut — though he did get one execution date taken off the calendar as a Texas court took up the issue in 2016.
Jennings’ lawyers have argued against the court decisions by pointing to dozens of other capital murder cases that got new sentencing trials after the Supreme Court rulings. Specifically, they point to the case of Arthur Williams, another man who was sentenced to death for the murder of a Houston police officer under the old punishment standards and eventually re-sentenced to life in prison based largely on showing remorse for the killing.
“Both Williams and Jennings exhibited remorse after killing a police officer in Houston. They were convicted and sentenced to death in the same court,” Schaffer wrote in a pending appeal before the Supreme Court. “However, they have been treated differently thereafter.”
The state said in its response that the Supreme Court “has never held that remorse alone is sufficient to grant” a new punishment trial.
“In this case, Jennings attorneys presented their limited evidence of remorse to the jury. And the jury rejected it,” wrote Texas Assistant Attorney General Ellen Stewart-Klein.
Complicating matters further is another appeal that just landed in front of the U.S. Supreme Court, where Jennings’ other lawyers are faulting Schaffer, Jennings’ longtime appellate lawyer, and his trial lawyers for “bad lawyering.” They argue that the trial lawyers were at fault for not calling for changes to the trial after the Supreme Court ruling on mitigation, instead blindly accepting improper jury instructions from the prosecution. And they said Schaffer, as the appellate lawyer, didn’t properly raise the trial counsels’ mistakes in the appeals process to get Jennings a new punishment trial.
Unless the court steps in, Jennings is scheduled to be put to death in the Huntsville execution chamber after 6 p.m. on Wednesday. It would be the first execution of the year in the nation. Earlier this month, the Texas Court of Criminal Appeals stopped the execution of Blaine Milam based on changes to forensic science and death penalty law.
The executions of those convicted of killing law enforcement often draw a small crowd of officer supporters on motorcycles who rev their engines at the time of execution. Jennings’ scheduled death comes only two days after four Houston police officers were shot during a narcotics bust.