Has this inmate outlived his death sentence?

By Mike Tolson / Houston Chronicle

Two weeks after he turned 40, Jack Harry Smith showed no signs of letting middle age slow him down. So on the first Saturday in January, he put on a ski mask, grabbed his pistol and a buddy, and went charging into a Pasadena convenience store.

As career criminals go, Smith never had been newsworthy nor successful. That changed by the time he ran out the front door of Corky’s Corner, and it wasn’t because of the small sack of cash in his hand.

Behind him lay the body of Roy Deputter, the store’s bookkeeper who lived in a trailer behind the store and had rushed inside with a gun when he heard the commotion. Before him loomed capital murder charges.

Smith’s lawyer says his client recalls little of the event. Prosecutors and lawmen typically are skeptical of convenient memory loss, but there’s a good chance he is telling the truth. On the day that Smith earned his ticket to death row, Jimmy Carter was threatening to slap a tariff on imported steel, Egypt and Israel were closing in on a historic peace accord, and the Dallas Cowboys were on the verge of their second Super Bowl title.

Which is another way of saying that Smith is old. By the standards of Texas’ death row, in fact, he is ancient. No one lasts that long in the nation’s most aggressive capital punishment state, certainly not a three-time loser who has spent most of his life behind bars. This isn’t California, which sends many people to death row but rarely executes them. The only inmates to escape the death chamber are those spared by appeals courts or those so mentally ill they are not competent for execution. And there are but a handful of those.

Smith is not one of them, and by rights he should not be alive. Yet he has beaten the odds and lingered on since 1978 — through six presidential administrations, countless Middle East negotiations and too many Super Bowls to remember. Tragedy has stalked his case for years and put his appeal on hold again and again. Now he is 76, and there’s no end in sight, at least not one imposed by the courts.

‘No purpose’

Should that day ever come, Smith would be the oldest person in the U.S. to be put to death in modern times.

“There would be absolutely no purpose to be served by his execution,” said his current attorney, David Dow, a University of Houston professor who oversees the law school’s innocence project. “This was not a notorious case, or a case involving a child, say. This was an instance of guys who knew each other stealing from each other, as I understand it. He didn’t kill a clerk. This case would not be prosecuted as a capital case if it happened today.”

True or not, that particular notion has not deterred the Harris County District Attorney’s Office from pursuing execution dates in other cases. But Dow said he doubts that Smith is high on anyone’s to-do list. Visitors who go see him at the Polunsky Unit in Livingston have to wait for guards to push him out in a wheelchair equipped with a bottle of supplemental oxygen.

“The optics of wheeling this guy into the execution chamber for his execution would be astonishing,” Dow said. “It might even be great for the anti-death penalty movement. But I don’t think that will happen.”

Neither does Shirley Cornelius, a former prosecutor who worked on the Smith case for years. “Texas does not need that,” said Cornelius, imagining a scene in which a feeble octogenarian only vaguely aware of what is happening gains worldwide attention. “I don’t think that strengthens the case for the death penalty.”

‘Too old to die’ case?

Yet State of Texas v. Smith is still very active. A hearing was held on a mental retardation claim in 2011 (state District Judge Belinda Hill found insufficient evidence of retardation). The most recent filing came last year when the Court of Criminal Appeals rejected his claims, clearing the way for the appeal to move back to federal courts. Assuming Smith’s repaired heart does not give out, there will be filings to come.

Should an execution date be set, Dow said he would aggressively fight it. Among his tactics would be the filing of what is known as a Lackey claim, in which a petitioner claims that undue delay in carrying out a death sentence is an unconstitutional violation of protections against cruel and unusual punishment.

The U.S. Supreme Court has never accepted a case making such an assertion. Most notably, it declined to hear the appeal of Florida inmate Manuel Valle, who spent 33 years on death row before his execution in 2011. It is not even clear whether the high court recognizes the validity of the premise “too old to die,” though it has hinted otherwise.

If ever there was a reasonable basis to make that claim, Smith might provide it. He’d likely be about 20 years older than Valle, who was 61 when executed, and in much poorer health. If, however, courts rejected the unusual claim, Dow said Smith still would have to be found mentally competent to be eligible, which he doubts would happen.

“Just in the time I’ve represented him there has been a noted decline in his mental awareness,” Dow said. “The last time I had significant contact with him was during the (2011) hearing, and you could not have a linear conversation with him.”

A 36-year wait

The person in charge of capital writs for the DA’s office, Roe Wilson, said Smith has not been forgotten. And she disagreed with Dow’s assessment that Smith is too far gone mentally to be eligible to.

“The case is moving,” Wilson said. “At the appropriate time, we would request an execution. I saw him testify at the hearing. I think he’s still very sharp.”

Asked why Smith’s case could have taken so long when others that came long after are done, Wilson said there is no easy explanation other than each case being different.

“It’s very difficult to describe,” she said. “Each of these cases moves on their own timetable. You just can’t ever predict how long they will take.”

The average length of stay on death row in Texas is 10.6 years. The oldest inmate Texas executed since the resumption of capital punishment in 1976 was 66. Typically, they are just shy of 40. The oldest condemned inmate to die of natural causes in Texas was 65.

“What this does more than anything is point out deficiencies in the process,” said Cornelius, who was in the Harris County DA’s office for 27 years before leaving in 2010. “There shouldn’t be a 36-year wait.”

Outliving the system

But stuff happens. In Smith’s case, a lot of stuff.

When he arrived there in October 1978, nothing about him or his case suggested a long stay. Nothing at all stood out about his case — a run-of-the-mill robbery with fatal consequences — and the only thing going for him was a backlog created by Harris County’s enthusiastic embrace of the revived death penalty and a cumbersome appeals process that could mean a wait of five years or more for an appeal to get past the first step.

Whether Smith would even make it far into the first step was a fair question. A heart condition appeared likely to kill him before the state could get around to it. His appeal essentially was put on hold as everyone waited for him to die.

He did not, of course, as open-heart surgery succeeded in stabilizing his condition. But some of those connected to his appeals had no such luck. First came District Judge Joe Kegans, whose court maintained jurisdiction over him and would have been the one to set an execution date. She died of cancer in 1997. She never had signed the order based on her Finding of Facts and Conclusions of Law, required for the appeal to move forward.

“I think Joe Kegans did not want him to have a death sentence,” Cornelius said. “I loved Judge Kegans, but she was a tough old goat with a very tender heart. She felt that Smith was one of these people who did terrible things but never had a chance in his life — he was predestined for this because his life was ruined before he was 17.”

Kegans’ death cleared the way to ramp up the appeal, which Cornelius did. But then Smith’s lawyer, Will Gray, took ill and died. Already two decades old, the case was back in limbo. Smith eventually received a new lawyer, Ken McLean, who was optimistic that Smith’s appeal was at last on its way to resolution.

Stumped at a solution

As it happened, McLean was overly optimistic. And when he succumbed to cancer in 2009, the case was far from resolved. Enter new counsel, Dow, and the need for more time to become familiar with the appellate issues and what remained to be done. In time he filed a flurry of new claims.

With those now rejected and the case again out of state court, the Texas Attorney General’s Office will now represent the state. It’s anyone’s guess how quickly the courts choose to handle it, though several years is a reasonable guess. Were the appeals to reach a dead end, it would fall on the DA’s office to pursue an execution date.

Cornelius said the time for that has passed, regardless of what might be said officially. Texas has now embraced a sentence of life without parole for some of its capital murderers, and she said it makes sense to think of Smith in that vein, not as a vicious killer who luckily slipped through the cracks.

The codefendant in the robbery at Corky’s Corner, Jerome Lee Hamilton, was paroled a decade ago. Were Smith’s case to be commuted to life because of his physical condition, he, too, would have to be paroled. There is no family around to take care of him, say the lawyers still involved in his case.

With yet another round of Mideast peace talks dragging on, Smith remains in his cell. Since he was 15, all but a handful of weeks of his life have been spent in one. Asked the best thing to do with him and his endlessly ongoing legal appeal, those who still pay attention to his case — whether speaking on or off the record — quietly come to the same conclusion.

Nothing.