A Young Man on Death Row

How does a 17-year-old kid who hasn't shot or stabbed someone wind up on death row? Speaking quickly and precisely, Randy Arroyo explains the legal concept known as the "law of parties." "You could be on the phone in another state, you see, in another state and arrange with someone to do a robbery, a 7-Eleven or something," said Arroyo. "They go in; they do the robbery; they get scared; they shoot the guy. And now, you didn't tell them to kill anybody, but because you planned the robbery -- it's the 'law of parties,' you see -- they got you for capital murder." He exhales and lowers his eyes.

The law of parties landed Arroyo on death row. On March 11, 1997, on the northwest side of San Antonio, he and Vincent Gutierrez, 18, carjacked 39-year-old Jose Cobo as the Air Force captain was leaving for work. With Arroyo driving, Gutierrez shot Cobo twice in the back and dumped his body into rush-hour traffic. At Arroyo's trial the prosecutors bundled his case together with the shooter's. They asked for the death penalty for both and, before a courtroom bristling with uniformed military men, got it. On April 14, 1998, Arroyo joined a group of 28 offenders scheduled to be executed by the state of Texas for crimes committed when they were children.

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"A Shameful Practice"

Huntsville is the world capital of juvenile offender execution. Since the Supreme Court reinstated the death penalty in 1976, 14 of the 21 young offender executions in the U.S. have occurred there. In the last 10 years, nations like Iran, Pakistan, Yemen, and the Congo have sought inclusion in the world community by writing laws to halt the execution of child offenders, and the practice has virtually ceased outside U.S. boundaries. In that time, though, Texas has picked up its pace. According to the Death Penalty Information Center, Texas is one of the few places in the world to have carried out juvenile offender executions in the last two years, during which time it has killed six.

In the nation, as in the world, there is movement on the issue. In March, Indiana became the 16th of the 38 death penalty states to ban child offender execution. In October, in a dissent from the Supreme Court's 5-4 vote refusing to take the case of Kentucky juvenile offender Kevin Stanford, Justice John Paul Stevens called child offender execution "a shameful practice" that is "inconsistent with evolving standards of decency in a civilized society." Although the court refused to hear Stanford's case, death penalty reformers say the close vote signals that the court may be ready to consider the issue. They say Stanford's petition was flawed because his lawyers presented arguments that weren't part of his original defense. This provides an excuse for swing voters like Sandra Day O'Connor to vote against review. (The justices prefer to rule on questions that lower courts have already had a chance to interpret.)

Austin attorney Walter Long, an expert on the subject, believes a break could come when the court considers Hain v. Gibson, an appeal on behalf of Oklahoma child offender Scott Hain. In Hain's trial and appeals, his lawyers consistently raised the three arguments that reformers say are most compelling -- that executing child offenders is cruel and unusual punishment; that it violates the provisions of treaties the U.S. has signed, which have the force of law; and that it violates international standards of decency, which lawyers call jus cogens norms. (Other practices which violate jus cogens norms are slavery, torture, and genocide.)

"Hain is the measuring stick," said Long. "If the court denies cert (a writ of certiorari, meaning the Supremes will review the case) in Hain, then we know that we don't have sufficient justices on the court on the merits of the issues." The court could take Hain's case at any time but will probably wait until Oklahoma sets an execution date, some time in the next year. At that point it will decide whether Hain and dozens of other child offenders live or die.

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Movement at the Capitol

In Texas the issue will be taken up for the second consecutive session when the Legislature convenes in January. Rep. Lon Burnam, D-Fort Worth, announced in August that he will reintroduce a bill he pushed last session to raise the age of eligibility for the death penalty to 18. (Within weeks of that August press conference, the state executed two juvenile offenders, T.J. Jones and Toronto Patterson.) Last session Burnam's bill was smothered in the Calendars Committee until April, passed the House after a dramatic public hearing in the Criminal Jurisprudence Committee, and then died in the Senate.

Although Burnam blames Gov. Rick Perry for reaching down to kill the bill, he is hoping to find Republican support for it this time. "In Texas that's the only way to get anything done," said Burnam. "It's not easy, but there are increasing numbers of Republicans that recognize we must reform our assembly-line approach to the death penalty."

Burnam will inevitably see opposition from law enforcement. Rob Kepple of the Texas District and County Attorneys Association says that, from the perspective of a prosecutor, it is juries who should decide if a defendant deserves a different sentence because of his youth. He notes that the age of a defendant is just one of several extenuating factors regularly seen at trial along with mental retardation, abusive parents, and impoverished childhoods. He asked, "What makes youth any more special than any of the other mitigating things that a defendant might raise?"

The last session was a surprisingly good one for death penalty reformers. The biggest success, given the near-universal impoverishment of those indicted for capital crimes, was passage of the Texas Fair Defense Act sponsored by Sen. Rodney Ellis, D-Houston. The new law seeks to raise the level of counsel given to poor defendants and end the era of sleeping court-appointed lawyers. Another reform signed into law was SB 3, authored by Rep. Harold Dutton, D-Houston, a measure that ensures inmates' access to DNA evidence. Ellis' SB 686, a bill prohibiting the execution of the mentally retarded, cleared both houses but was vetoed by Perry; last year, the U.S. Supreme Court declared the practice cruel and unusual punishment.

Several proposals that didn't make it last session are coming back this year, but with longer odds now that Republicans have completed their takeover of the Legislature. Ellis' people say they will reintroduce the bill banning the execution of the mentally retarded. They are uncertain whether they will reintroduce a bill to make the Board of Pardons and Paroles meet in person instead of voting over the phone.

Reps. Dutton and Elliott Naishtat, D-Austin, will once again pursue a moratorium on Texas' death penalty. Dutton wants to create a commission to study the system and suggest legislation to improve it; no executions would be conducted during the two years of the study. Naishtat proposes a constitutional amendment that, if approved by voters, would allow the governor to place a moratorium on executions.

Rep. Pete Gallego, D-Alpine, isn't sure whether he will reintroduce his proposal to give the governor more power to commute death sentences, but former Rep. and incoming Sen. Juan Hinojosa, D-McAllen, says he will reintroduce his bill to provide juries with the sentencing option of life without parole. This option remains unavailable in Texas and, to the displeasure of some prosecutors, would take the heat off juries to hand out death sentences.

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"I've Had My Hours of Crying"

Randy Arroyo's background and trial experience will sound all too familiar to those who know Texas' death row. His family was poor and troubled. His mother died of AIDS when he was 13. He was then placed with his father, a severe alcoholic he barely knew. By 16, his father absent, he had abandoned school and was raising himself, living in an apartment in northwest San Antonio and washing dishes at a Chinese restaurant to pay the bills. Although he denies he was in a gang, gangs were all around him. "They say, 'Don't hang out with gang members,'" Arroyo said. "Don't hang out with gang members? I couldn't go outside!"

The San Antonio papers reported that while the triggerman, Gutierrez, returned from the murder of Jose Cobo joking and boasting, Arroyo came back silent, in a daze. Arroyo had two previous offenses, one for graffiti and one for car theft, but had never been in trouble for violence. He and his family were broke. He took a court-appointed attorney, a man Arroyo says "didn't do anything for me." The attorney told him to accept a deal for life. Arroyo walked out on him.

The victim's status as a military man made the case a career maker -- or breaker -- for the prosecutors. A show of leniency could have threatened their future advancement. Determined to get a conviction, they bundled the cases of Arroyo and Gutierrez together, equating driver with shooter, an arrangement that Arroyo's new appeals attorney, Anthony Smith, says "just flies in the face of individualized consideration" and is of doubtful constitutionality. The most damaging testimony against Arroyo came from co-conspirator Christopher Suaste, with whom prosecutors cut a deal. Although he wasn't in the car during the crime, he testified that Arroyo cried "Shoot him!" as Cobo tried to escape. At the punishment phase, the prosecution's most effective witness was Graciela Hernandez, a neighbor of Arroyo's who testified that she lived in fear of him and on one occasion let a security officer from their housing complex into her apartment to escape Arroyo's gunfire.

"Turned out," said Smith, "that the government never revealed that she had a history of mental illness, was a convicted arsonist, was generally not believed by the law enforcement community. None of that information was provided to the trial counsel." (Arroyo notes that security officers are usually off-duty law enforcement and that he would have been arrested immediately for shooting at one.)

The bundling of the cases and the withholding of information on Hernandez's character, along with the three arguments cited earlier (cruel and unusual punishment, treaty provisions, international decency), are elements of a petition that Smith filed for Arroyo on Oct. 4 in state court. When the state rejects the writ, as is expected, Smith will file it in federal court.

With his wire-rimmed glasses, rapid speech, constantly flitting hands, and propensity for quoting cases and arguing points of law, Arroyo could pass for a first-year law student. He turned 23 on Halloween, and though he has grown three inches, to 5 feet 7 inches, since the time of his arrest, he remains thin and boyish. He complains that death row is worse since the move from Huntsville to Livingston two years ago. Inmates are now kept in their cells 23 hours a day and medical care, recreation, and religious services have become harder to access. (Arroyo has reportedly become an adherent of Islam while in prison and also uses the name Abdullah.) "I've had my hours of crying. I've had my hours of wanting to give up," he said. But he is still able to make jokes, to tease and laugh, and he is pleased that Smith, though new to the process of filing death row petitions, has put together a case that so well represents his complaints.

Texas has seen a succession of executions in recent years that have drawn international condemnation -- Karla Faye Tucker, Gary Graham, and most recently, Napoleon Beazley. Beazley's attorney, Walter Long, was heartbroken when Beazley was put to death in May. "I truly loved Napoleon, and frankly, you know, I consider myself to still be representing him. And my job is not going to be finished until we've changed the law here," said Long. In his petition to the Supreme Court on behalf of Beazley, Long wrote that two-thirds of the child offenders on death row have arrived since 1995 and that they have begun to exhaust their appeals.

He warned that after Toronto Patterson's Aug. 28 execution, "A floodgate of executions of child offenders will open, because many of these inmates like Napoleon will have suffered from foreshortened review due to incompetent representation ... and, along with adult offenders in the same unenviable situation, they will be killed with dispatch." If nothing changes, Randy Arroyo -- on his final appeal in a system designed to ignore appeals and hasten executions -- will be part of that flood. If his petition is rejected, he guesses he has about two years.