Barristers in death row case

John Malpas reports

THE FATE of two Texan prisoners on death row may hinge on last minute pleas drawn up by two UK barristers for their sentences to be commuted.

Bar Human Rights Committee members Philip Sapsford QC and David Marshall were last week drawing up amicus curiaes briefs on behalf of Calvin Burdine and Clarence Lackey, whose executions by lethal injection are imminent.

The Texas legal centre which asked them to intervene believes the submissions could help convince the Supreme Court it is inhumane to allow prisoners to languish on death row as appeals are delayed and execution dates repeatedly set and then stayed.

Burdine, who was sentenced to death for murder 12 years ago, was due to be executed on 28 February until he was granted a temporary stay of execution last week. Lackey, who received his sentence for rape and murder 17 years ago, is due to be executed on 6 March.

According to Sapsford, of Cloisters, and Marshall, of 5 King's Bench Walk, the US, as a signatory to the International Covenant on Human Rights, is bound to a judgment made by the Judicial Committee of the Privy Council in 1993.

The judges concluded it was inhumane to keep two Jam-aican prisoners on death row for a period of 16 years.

Marshall, vice chair of the human rights committee, says Burdine has twice been forced to go through the "death watch" routine when prisoners are moved to a cell adjoining the execution chamber and told to prepare for death.

Both times his prison had mislaid a document confirming a stay of execution and refused to admit its mistake until execution was just hours away.

He adds there is evidence that Burdine's defence lawyer fell asleep during his trial and there are grounds for questioning the safety of his conviction.

The two barristers, who visited Texas last year to examine the implementation of the death penalty, believe their submissions may be influential because the English Bar is highly regarded by the US legal establishment.

Marshall says: "We feel that we cannot stand by and be silent. Now the US has committed itself to an international treaty it has certain international obligations.

"For the first time it will have to consider the death row phenomenon."

Contrary to media reports the amicus curiae filed on behalf of Burdine by the barristers did not influence the granting of his temporary stay of execution, says Brent Newton, of the Texas Resource Center. He adds the Supreme Court may be influenced by the submissions, if it agrees to hear them.

"The Supreme Court sets great store on what the law was in England at the time the constitution was drawn up. The Privy Council judgement was based on English common law and I believe the court may find it compelling."