Texas set to resume executions after delay during pandemic

A Texas death row inmate condemned for fatally shooting an 82-year-old man nearly three decades ago was scheduled to die by lethal injection Wednesday, as the nation’s busiest death penalty state prepared to resume executions following a five-month delay during the coronavirus pandemic.

Prosecutors say Billy Joe Wardlow killed Carl Cole during a June 1993 robbery at his home in Cason, about 130 miles (209 kilometers) east of Dallas in the East Texas piney woods, near the Louisiana and Arkansas borders.

Wardlow was 18 at the time of the slaying, and his attorneys have argued that one of the issues Texas jurors have to determine before imposing a death sentence — whether a defendant will be a future danger — can’t be reliably made for people younger than 21 because scientific research has shown their brains are still developing. Wardlow’s attorneys have asked the U.S. Supreme Court to stop his execution, saying he committed a “poorly-thought-out and naively-motivated robbery” to steal a truck so he could run away with his girlfriend.

“The science really supports precluding the death penalty for anyone under 21 because brain development is still happening,” said Richard Burr, one of Wardlow’s attorneys.

Prosecutors argue there was no constitutional error when the jury considered the issue of future danger and that society has long used the age of 18 as the point where it draws the line for many distinctions between childhood and adulthood.

“Wardlow senselessly executed elderly Carl Cole to steal his truck, something that could have been taken without violence because the keys were in it,” according to a petition filed with the Supreme Court by the Texas attorney general’s office.

Wardlow, now 45, also has two other petitions before the Supreme Court — one over claims of ineffective assistance of counsel and another tied to the dismissal of a previous appeal in state and federal court. On Monday, the Texas Board of Pardons and Paroles denied a request to delay Wardlow's execution or commute his sentence to life in prison.

If Wardlow’s execution is carried out, it would be the first in Texas since Feb. 6. Missouri was the first state in the U.S. to carry out an execution following pandemic-related shutdowns. No other executions have taken place in the U.S. since that one on May 19.

A judge moved Wardlow's execution date from April 29 to July 8 after Morris County District Attorney Steve Cowan requested the change citing the statewide disaster declaration due to the virus.

In Texas, the number of confirmed COVID-19 virus cases and hospitalizations have risen in recent weeks. But state prison officials say safety measures they’ve put in place will help executions to go forward.

Six executions scheduled in Texas for earlier this year were postponed by the courts because of the outbreak. Two others, including one scheduled execution last month, were delayed over different issues.

Wardlow’s petition on brain development before the Supreme Court has its roots in a 2005 decision in which the high court banned the execution of offenders younger than 18 when they commit crimes. The court pointed to research showing that character and personality traits of juveniles are not fully formed like adults.

Since that ruling, scientific research has established that the brains of those between the ages of 18 and 20 are functionally indistinguishable from someone who is 17, making their executions a violation of the constitutional protection from cruel and unusual punishment, Burr said.

In a clemency petition to the Texas Board of Pardons and Paroles, Burr argued that as Wardlow grew older on death row, “kindness and compassion have been his defining characteristics.” Two jurors who condemned Wardlow have asked the board to commute his sentence to life without parole.

A group of academics and professionals in neuroscience and brain imaging are also asking the Supreme Court to stop the execution, saying the prediction of Wardlow’s future dangerousness “was scientifically unfounded when made and refuted by his character today.”

But the attorney general’s office points out that Wardlow had previously threatened to shoot an officer and threatened jail staff and other inmates after his arrest. They also note that in his written confession, Wardlow said Cole “was shot like an executioner would have done it.”

Wardlow would be the third inmate executed this year in Texas and the seventh in the U.S.

Follow Juan A. Lozano on Twitter: https://twitter.com/juanlozano70

Texas’ oldest death row inmate faces execution Thursday for killing a Houston police officer nearly 32 years ago during a traffic stop.

Carl Wayne Buntion, 78, was sentenced to death for the June 1990 fatal shooting of Houston police officer James Irby, a nearly 20-year member of the force.

Buntion had been on parole for just six weeks when he shot the 37-year-old Irby. Buntion, who had an extensive criminal record, was a passenger in the car Irby pulled over. In 2009, an appeals court vacated Buntion’s sentence, but another jury resentenced him to death three years later.

Before his death, James Irby had talked of retirement and spending more time with his two children, who were 1 and 3 years old at the time, said his wife, Maura Irby.

“He was ready to fill out the paperwork and stay home and open a feed store,” Maura Irby, 60, said. “He wanted to be the dad that was there to go to all the ballgames and the father-daughter dances. He was a super guy, the love of my life.”

Various state and federal courts have turned down appeals by Buntion’s lawyers to stop his execution. The Texas Board of Pardons and Paroles on Tuesday rejected his clemency request.

Buntion’s attorneys say he is responsible for Irby’s death and “deserved to be punished severely for that crime.”

But they argue his execution would be unconstitutional because the jury’s finding he would be a future danger to society — one of the reasons he was sentenced to death — has proven incorrect. Also, they said, his execution would serve no legitimate purpose because so much time has passed since his conviction. His attorneys describe Buntion as a geriatric inmate who poses no threat as he suffers from arthritis, vertigo and needs a wheelchair.

“This delay of three decades undermines the rationale for the death penalty ... Whatever deterrent effect there is diminished by delay,” his attorneys David Dow and Jeffrey Newberry, wrote in court documents.

If Buntion is executed, he would become the oldest person Texas has put to death since the Supreme Court lifted its ban on capital punishment in 1976. The oldest inmate executed in the U.S. in modern times was Walter Moody Jr., who was 83 years old when he was put to death in Alabama in 2018.

Buntion would also be the first inmate executed in Texas in 2022. Although Texas has been the nation’s busiest capital punishment state, it’s been nearly seven months since it carried out an execution. There have been only three executions in each of the last two years, due in part to the pandemic and delays over Texas’ refusal to allow spiritual advisers to touch inmates and pray aloud in the death chamber.

In March, the U.S. Supreme Court said states must accommodate such requests, and Texas prison officials have agreed to allow Buntion's spiritual adviser to pray aloud and touch him while he is being executed.

Maura Irby said she had believed Buntion would die of old age on death row.

“I had stuffed so much of it away in a big trunk and shut the lid on it in my mind, in my heart because I didn’t think anything was really going to come of it,” Irby said.

While the pending execution has stirred up painful memories for her, Irby said it has also reminded her of her advocacy work in public safety after her husband’s death, including helping put together legislation that allowed victim impact statements at trials.

Irby said she and her two children are hoping with the execution, a painful chapter in their lives can finally come to an end.

“So, I hope Jimmy will finally rest in peace and then we can all kind of breathe a sigh of relief and just keep him in our prayers now and in our hearts,” Irby said.

Follow Juan A. Lozano on Twitter: https://twitter.com/juanlozano70