On November 15, the Supreme Court vacated the death sentence of LaRoyce Lathair Smith, sentenced to die for pistol-whipping, shooting and stabbing with a butcher knife a 19-year-old female manager of a local Taco Bell in January 1991. Smith's and Lewis' stories are almost identical: They're of below-average IQ and were lucky to have even survived ghastly childhoods. Seven of the justices believed Smith shouldn't die; only two, conservatives Antonin Scalia and Clarence Thomas, voted otherwise. Five months earlier, the court ruled the same way for Robert Tennard, insisting that if the jury had known about their life stories, perhaps they would have imposed "a sentence more lenient than death." And earlier this year, they took Delma Banks off Death Row, claiming he, too, didn't get a fair trial.
And so, in a state once known for killing its convicts with numbing regularity, there is now a bit of hope that one death need not guarantee another. Perhaps that will change as George W. Bush begins to reshape the Supreme Court in his image. After all, when he was governor of Texas, 152 people were executed while he opposed setting up a single legal roadblock that might have slowed their path to the death chamber.
Lewis survived because his legal battle was taken out of the hands of Texas. Instead it was waged in the federal courts, which are historically friendlier to the condemned.
And it was the U.S. Supreme Court that in June 2003 lifted the death sentence of a borderline retarded Maryland man named Kevin Wiggins, convicted of killing an elderly woman for whom he worked as a handyman. The court ruled that the jury that sentenced Wiggins to die might have ruled differently had it heard about how he was starved, beaten and repeatedly raped as a child and how his mother used to punish her young son by burning his hands on a stove.
"The Wiggins case did not break new ground," says Robin Maher, director of the American Bar Association Death Penalty Representation Project. "It was reaffirming a well-established position about mitigating evidence. It served as an important reminder that this was essential evidence in death penalty cases. It put an exclamation mark behind the importance of developing and putting mitigating evidence in front of a jury before sentencing. That evidence is usually painful, too, facts nobody wants to admit to, and it's the same story in case after case. As compelling as the facts were in Wiggins, his story was not unusual. Many, many clients are executed without evidence presented that was far more compelling."
Lewis and dozens like him waiting to die in Texas and elsewhere do not have the market cornered on tragic, grisly childhood tales. They're but tiny chapters in thick books spread out over hundreds of volumes. Lewis isn't special. He just survived long enough for someone to tell his story.
He would have disappeared down the well long ago had it not been for three attorneys who believed Lewis had been poorly represented during his original trial and who believed he did not mean to kill McKay and did not deserve to die for pulling the trigger that awful afternoon.
It was almost 12 years ago this week that two of those lawyers, Sandra Babcock and Elizabeth Cohen, first contacted the Dallas Observer about Lewis. They worked for the Texas Resource Center back then, a federally funded group of attorneys and investigators who made sure every inmate had his or her right to a federal appeals process after a death sentence was imposed. (The Resource Center has become a thing of the past; in September 1995 the federal government cut off funds for resource centers around the country.)
To them, Lewis was a special case and not so special at all, meaning they wanted to save his life, absolutely, but also to use his case to reveal how broken the system had become in sentencing to death a man who never had a chance at any kind of normal, decent life. Babcock and Cohen, and one of the TRC's investigators, spent nearly two months introducing me to Lewis' family members--the aunt and grandmother who tried to raise and rescue him, the sisters who had their own minor run-ins with the law, and the junkie father who tortured his children so often and so brutally that they came to believe that his killing them would have been the kindest thing their dad could have done.