Texas juries find it hard to impose the death penalty

‘You gotta be perfect,’ Dallas County special prosecutor says of prospects

DALLAS -- The crimes were heinous, but Dallas County jurors couldn't condemn the convicted killers.

A college student killed three people at a drug house in a premeditated robbery.

A former special education teacher and U.S. Army veteran killed his girlfriend, her teenage daughter, his estranged wife and her adult daughter and severely wounded four children in a two-city rampage.

But neither killer received the death penalty, a punishment reserved for the "worst of the worst."

Statewide in Texas, juries have declined death sentences in nearly half of the cases presented to them in the past two years.

So, what does it take to win a death penalty sentence?

"You gotta be perfect probably these days," said Edwin King, a special prosecutor in one of the Dallas County cases.

Jurors couldn't agree to the death sentence in the two recent capital murder trials. They were the first Dallas County cases in which the state sought the death penalty since 2014.

The Dallas County district attorney's office is planning to seek death for Antonio Cochran, the man accused of kidnapping and killing 18-year-old Zoe Hastings in 2015 while she was on her way to a pharmacy to return a rental movie.

The decision to seek the death penalty is based on the severity of the crime, criminal background and what the victim's family wants, said Dallas County District Attorney Faith Johnson.

"Our office only seeks the death penalty in the most heinous and serious of crimes," Johnson said.

The death penalty case against Cochran is the first filed since Johnson took office in January. Prosecutors in the case may face an uphill battle.

National support for the death penalty has drastically declined in recent years. Less than half of the population supports capital punishment, according to the Pew Research Center.

"Even in Texas, the death penalty is dying," said Jason Redick of the Texas Coalition Against the Death Penalty.

In the 15 death penalty cases tried in Texas since 2015, jurors have sent only eight men to death row.

Death sentences peaked in the 1990s. Between 2007 and 2013, Dallas County led the state in defendants sent to death row. During that time, the county sentenced 12 people to death.

Executions in Texas are also declining because of legal reforms that give prisoners more chances to have their sentences reviewed.

Jurors are only selected after they agree that they can give the ultimate punishment. Even so, they appear to be split on the issue in recent years.

"We know these aren't folks who are anti-death penalty folks," Redick said. "At one point they said they could hand out a death sentence."

Capital punishment has been controversial for years. There have been botched executions. People sitting on death row have been exonerated. And critics point to the disproportionate number of minorities sentenced to death.

Pursuing the death penalty can cost taxpayers millions. For many small counties, the price is too high.

Seeking the death penalty in Montague County would've eaten up nearly a tenth of the yearly budget when Tim Cole was district attorney there. He is now a law professor at the University of North Texas at Dallas and tracks death penalty cases in the state.

His opinion of capital punishment has shifted over time.

"It is time for the death penalty to go away," he said. "My primary concern with it is we don't seem to get it perfectly. ... The execution of one innocent person isn't worth it to me."

He said the decision to pursue the punishment is too subjective. It's left to each county's district attorney and there are no standard guidelines to determine when the lethal injection would be appropriate.

And in 2005, Texas passed a bill creating an automatic sentence of life in prison without parole for anyone convicted of capital murder. The new punishment put an end to a time when the worst killers might have once been released into society.

Cole believes the automatic sentence is a factor in the death penalty decline. Prosecutors may seek the punishment less often knowing the defendant will die in prison.

Also, jurors who say they support the death penalty may have a tough time when faced with an actual decision.

"When you see the person, when you hear their history, their background, sometimes they were abused as children themselves, sometimes they're mentally ill ... it's a different thing," he said. "Now you have a face."

Jurors aren't simply asked to answer "yes" or "no" when considering the death penalty. They must unanimously agree that the defendant poses a continuing threat to society and that there are no reasons to save that person's life.

Those issues posed a problem for the two recent Dallas County cases.

In the case of Justin Smith, the college student who killed three people in a drug house, more than a dozen people vouched for him. They believed he was once a good man. He was known for mentoring his friends and regularly attending church. His loved ones believed he could be a good man behind bars.

Smith agreed to a plea deal while the jury was still deliberating his sentence. Jurors had indicated they couldn't agree on whether there were reasons to save his life.

King, the special prosecutor in the case, said the attorneys tried to settle before trial, but Smith wouldn't accept guilt.

King, who usually works as a defense attorney, said he still believes the death penalty is an appropriate punishment but can likely only be used in the most extreme cases -- when there are mass casualties, children are killed or someone kills a law enforcement officer.

"You've got to have some level of penalty to send a message," he said.

In the past, the horror of the premeditated murders of three people might have been enough for a jury to sentence a man to death.

"It just shows that the citizens of Dallas County, they're not bowled over merely by the facts of an offense," said Smith's defense attorney, Paul Johnson.

"They know that if they don't give them death, they're going to die in prison anyway," Johnson said. "Why put someone to death when you can give them life without parole?"

The Dallas County jury deliberating whether to send Erbie Bowser to death row couldn't agree on whether the 48-year-old man posed a continuing threat to society, even behind bars.

His defense attorneys had argued Bowser was insane when he killed four women and seriously injured four children. He has since been put on medications that stabilize his mood, and nearly a dozen guards at the Dallas County jail testified that Bowser was a model prisoner.

In both cases, the defendants didn't have lengthy rap sheets. Bowser and Smith had both been law-abiding men before their crimes.

Public defender Andy Beach said Bowser didn't fit the bill for a death penalty case. Not only did he have a history of mental illness, he didn't spend his life committing crimes.

"That's not who you're trying to kill. You're trying to kill people who have demonstrated from the time they were 15 years old that they've been a menace to society," Beach said.

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