- The Washington Times - Thursday, January 10, 2002

A Supreme Court newly divided on death-penalty issues yesterday voted 5-4 to ease the way for convicted murderers striving to avoid death sentences to advise their juries if they are ineligible for parole under life sentences.
The decision sets the stage for resentencing William A. Kelly, who was convicted for the murder of his former boss at Kentucky Fried Chicken and sentenced to death by a South Carolina jury unaware that a life sentence did not allow for his parole.
Kelly was characterized by a prosecutor in the 1996 trial as "Bloody Billy" and the "Butcher of Batesville." At age 17, the former Boy Scout with no criminal record kidnapped, tortured and cut the throat of Shirley Slade Shealy, 25, who had fired him from the Batesville KFC franchise she managed.
Justice Sandra Day O'Connor provided the swing vote for four traditional execution opponents in the first capital-punishment decision since her July 2 speech expressing misgivings about the administration of the ultimate punishment. That speech marked a dramatic step away from longtime support of capital punishment even for murderers who were moderately retarded or were teen-agers when they committed their crimes.
Yesterday, she voted with Justice David H. Souter, who wrote the court's opinion also joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.
In a rare dissent, Chief Justice William H. Rehnquist, joined by Justice Anthony M. Kennedy, predicted the new test would virtually require the persuasive rationale against execution anytime a life sentence did not permit the chance of parole.
A separate dissent by Justices Antonin Scalia and Clarence Thomas raised anew their objections to the underlying 1994 decision that required such statements only when the prosecution claimed a prisoner would be dangerous if not executed.
Richard Dieter, who heads the Death Penalty Information Center, said Justice O'Connor's objections to sloppy administration of the death penalty that causes innocent people to be convicted include questions about sentencing the guilty.
"One way to avoid the worst outcome sentencing an innocent person is to invoke a higher standard of proof to make sure the jury has the most leeway to avoid the death sentence and impose a life sentence. This might be seen as a way to facilitate that," Mr. Dieter said.
In the 1994 case, Justice O'Connor wrote a concurring opinion saying the right of a murderer to say he never would be paroled was required by the Constitution's "due process" clause to rebut prosecutors who raised the specter of "future dangerousness."
Chief Justice Rehnquist said yesterday's ruling erased that distinction.
"The rule is invoked, not in reference to any contention made by the state, but only by the existence of evidence from which a jury might infer future dangerousness and evidence there will surely be in a case such as the present one, correctly described by the Court as an extraordinarily brutal murder," the chief justice wrote.
When she was killed after closing the restaurant on the night of Jan. 5, 1996, Mrs. Shealy and her husband, Neal, had a 6-year-old son and she was 23 weeks pregnant. The fetus did not survive.
Prosecutor Donnie Myers said he dwelt on Kelly's vengeful "butchery" to meet state death-penalty requirements, but carefully avoided mentioning "future dangerousness."
Yesterday's opinion said he failed.
"Characterizations of butchery did go to retribution, but that did not make them any the less arguments that Kelly would be dangerous down the road," Justice Souter wrote. "A jury hearing evidence of a defendant's demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee."
Kelly's case is the first of four death-penalty appeals the court will decide by June. The others involve a new review of executing mentally retarded murders, questions of ineffective counsel, and a claimed conflict of interest by the defense attorney in a capital case.
In one of two speeches raising "serious questions" about fairness of death-penalty procedures, Justice O'Connor told the Minnesota Women Lawyers in Minneapolis that since 1973 new evidence exonerated 90 death-row inmates.
"If statistics are any indication, the system may well be allowing some innocent defendants to be executed," she said, suggesting Minnesotans were fortunate to live in a state that did not execute murderers.

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