THE CALL WAS LATE: THE PRISONER DIED

LEAD: At 3:19 A.M., Central Standard Time, on Jan. 7, Texas began to execute Robert Streetman, who was strapped down at the state prison in Huntsville, by pumping lethal drugs into his veins. Before he was pronounced dead seven minutes later, the telephone rang in the death chamber. The Governor’s office had word that the United States Supreme Court was prepared to consider a new motion for appeal, and, in the words of a prison spokesman, wanted to know ”where we were in the process.

January 17, 1988, Page 27
The New York Times Archives

At 3:19 A.M., Central Standard Time, on Jan. 7, Texas began to execute Robert Streetman, who was strapped down at the state prison in Huntsville, by pumping lethal drugs into his veins. Before he was pronounced dead seven minutes later, the telephone rang in the death chamber. The Governor’s office had word that the United States Supreme Court was prepared to consider a new motion for appeal, and, in the words of a prison spokesman, wanted to know ”where we were in the process.” By then it was too late.

Mr. Streetman, 27, was the first in mate executed in the United States this year and the 27th in Texas since executions resumed here in 1982.

He was one of life’s losers. He dropped out of school in ninth grade and worked when he could as an oilfield roughneck. In 1982, he and two companions broke into a farm house in Kountze, Tex., and shot Christine Baker after taking the dollar she had in her purse. Although he maintained his innocence, Mr. Streetman was convicted of capital murder after the other two men cooperated with the prosecution in exchange for lenience.

A serious head injury in fifth grade triggered a lifelong procession of mental problems for Mr. Streetman, including persistent delusions and hallucinations. Yet his court-appointed attorney failed to raise the issue of mental impairment at his brief trial in 1983.

When his conviction was upheld upon automatic appeal in 1985, his lawyer dropped the case, because under Texas law he would no longer be paid for further work on Mr. Streetman’s behalf, even though a broad range of state and Federal legal appeals remained available. Eventually a volunteer lawyer was found, but the overworked lawyer failed to communicate with his client, and by the time of a Federal court hearing in May 1987 a despondent Mr. Streetman had decided to end his appeals.

The judge took six months to decide whether Mr. Streetman would be permitted to do so; meanwhile, his family worked to find another volunteer lawyer. On New Year’s Eve, a week before his scheduled execution, they found one, and Mr. Streetman changed his mind and agreed to go back into court and fight for his life.

The new lawyer, Robert McGlasson, knew the Supreme Court was reviewing the constitutionality of the Texas capital murder statute in the case of another Texas death row inmate, Donald Gene Franklin.

The issue, applicable to Mr. Streetman, was whether Texas sentencing juries are properly instructed to consider mitigating evidence about the prisoner’s possible future dangerousness. On the Monday after New Year’s, with three days to go, Mr. McGlasson went to court to seek a stay of execution. Although it had halted another execution on the same grounds months earlier, the Texas Court of Criminal Appeals in-explicably denied Mr. Streetman’s motion.

Finally, at 1:45 A.M. on Jan. 7, with Mr. Streetman waiting in the death chamber, a bitterly divided Supreme Court deadlocked 4-4, one vote short of enough for a stay. The Court’s clerk called Mr. McGlasson and began to read the order and Justice William J. Brennan Jr.’s unusual seven-page dissent, which noted that there were enough votes on the Court to take a different action with the same effect and simply hold the case until the Franklin case was decided.

Mr. McGlasson interrupted the clerk’s reading and tried to make the motion orally. Informed that the necessary papers would have to be filed, Mr. McGlasson then spent the next hour and a half on the telephone, much of the time on hold, in an unsuccessful effort to persuade the state Attorney General and the Governor to stop the execution so he could file the new motion, which would almost certainly be successful. He was still on hold when his client died.

If Donald Gene Franklin’s challenge to the Texas capital murder statute is successful, some death row inmates will get new trials. Like Mr. Streetman, virtually all death row inmates are poor and uneducated. Many have mental disorders. Many are convicted because of incompetent trial counsel, and most must rely on overworked volunteer lawyers to pursue their final appeals. All are the victims of an arbitrary and inconsistent justice system.

As Justice Brennan noted early on Jan. 7, if Mr. Streetman had been convicted of bank robbery this would matter much less. But the finality of death makes unfairness irrevocable. It’s time for the majority of Americans who say they support the death penalty on philosophical grounds to begin paying attention to how it works in practice. Because whatever is taking place in predawn hours in our nation’s death chambers, it certainly isn’t justice.