New York Times
August 14, 2001

Justices Turn Down Stay of Execution in Texas Case

By JIM YARDLEY with RAYMOND BONNER

With three justices having disqualified themselves, the Supreme Court this afternoon turned down a stay of execution request from Napoleon Beazley, who is scheduled to be put to death in Texas on Wednesday.

The vote to grant a stay was 3 to 3, but a tie is insufficient. Justices Antonin Scalia, David H. Souter and Clarence Thomas did not take part because of their relationship to J. Michael Luttig, a federal court judge whose father was murdered by Mr. Beazley.

The high court's action did not end the defendant's hopes, since the justices still have before them a motion from his lawyers to review the case on its merits and decide whether the Constitution permits the execution of juvenile offenders. Mr. Beazley was 17 years old at the time of the killing.

The Texas Board of Pardons and Paroles was also meeting today to consider Mr. Beazley's application for clemency.

Walter Long, an appellate lawyer for Mr. Beazley, faxed a letter to the clerk of the Supreme Court on Friday evening saying he believed that Justice Thomas should withdraw from the case because the victim's son, Judge Luttig, was a close adviser during the justice's contentious confirmation hearings in 1991.

Mr. Long's letter noted that Justice Scalia had disqualified himself. Judge Luttig, now a federal appellate judge, was once his law clerk. Officials in the Supreme Court clerk's office could not be reached for comment over the weekend.

"It's an appearance-of-bias issue," Mr. Long said in a telephone interview on Sunday afternoon, referring to Justice Thomas. "We were unaware of the closeness of his relationship with Judge Luttig. He credited Judge Luttig with his having achieved his position on the Supreme Court."

As it turned out, Justice Souter also recused himself, apparently because Judge Luttig worked for the justice's confirmation in 1990.

Justices Ruth Bader Ginsburg, John Paul Stevens and Stephen G. Breyer wanted to grant a stay, while Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Anthony M. Kennedy did not. The brief announcement of the denial did not give reasons.

A federal law requires that judges and justices disqualify themselves if their "impartiality might reasonably be questioned." The law also gives instances in which a justice must disqualify himself, including when he has a "personal bias or prejudice concerning a party," when he has a financial interest in the matter or when he has been a lawyer in the matter before the court.

But one prominent legal ethics scholar said before today's announcement that the law might not require that Justice Thomas withdraw from the case regardless of any relationship with Judge Luttig.

"Popular sentiment might say he shouldn't participate, and that's a factor Thomas might want to take into account in exercising his personal, moral judgment," said the scholar, Geoffrey C. Hazard Jr., a professor of professional ethics at the University of Pennsylvania Law School.

"But on the question — Does the law require it? — I'd say no," he added.

Professor Hazard, who said he was not aware of a Supreme Court justice ever stepping down from a death penalty case, said he did not believe the law required Justice Scalia to disqualify himself, either. "He was exercising personal, moral discretion," Professor Hazard said.

In his letter, Mr. Long asked whether Justice Thomas would be voluntarily recusing himself. He requested that he be notified if the justice did not do so, so that he would have an opportunity to make a formal motion.
Mr. Beazley is scheduled to be executed for the murder of John Luttig, a Tyler businessman and civic leader, in 1994. Mr. Beazley, then 17 and president of his senior class, shot Mr. Luttig twice in the head in his driveway during a botched carjacking with two friends.

The United States is one of only a handful of countries that permit the execution of someone who was under 18 at the time of his crime. Of the 38 states that have the death penalty, 15 bar the execution of such offenders.

Mr. Beazley had no prior record at the time of the shooting, and his two co-defendants have recanted parts of their testimony in which they said he had boasted about wanting to kill someone. Mr. Long said this testimony was critical in convincing jurors that the crime was worthy of a death sentence. Prosecutors say the original testimony was truthful.

In the days leading up to an execution, the Supreme Court routinely gets appeals for a stay of execution.

In his letter to the court, Mr. Long cited several newspaper articles that described Judge Luttig as a close adviser to Justice Thomas during the Senate confirmation hearings. At the time, Mr. Luttig was a high-ranking Justice Department lawyer in the administration of President George Bush. He continued to advise Justice Thomas during the hearings after his own appointment to the United States Court of Appeals for the Fourth Circuit, a decision for which he was criticized.

Mr. Long also referred to an article last October in The New York Times Magazine in which Judge Luttig was described as a likely candidate for the Supreme Court in a Republican administration. The article described photographs in his office of Justice Thomas, "one of which shows him in shirt sleeves with his arm around Luttig's shoulder. Another picture has an inscription from `Clarence,' which reads: `This would not have been possible without you! Thanks so much, buddy!' "

The same article mentions that Judge Luttig "worked tirelessly for the confirmation of David Souter in 1990." Mr. Long had not asked that Justice Souter recuse himself, and said on Sunday that he was unaware of his connection to Judge Luttig.

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