Robert Jennings was 31 years old when he entered a Houston adult book store on July 20, 1988 with the intent to rob it. He had already established an extensive criminal history, including some violent crimes. What Jennings didn’t anticipate was that Houston police officer Elston Howard was in the book store about to arrest its store clerk on a municipal violation, according to Texas Tribune writer Jolie McCullough. The store clerk, reported McCullough, testified at Jennings’s 1989 capital murder trial that Howard was gunned down before he could ever reach for his service weapon.
There was never any doubt that Robert Jennings killed the police officer. The Harris County District Attorney’s Office sought the death penalty. Jennings’s attorney tried to avoid the ultimate penalty by presenting a chaplain who told the jury that Jennings was not an “incorrigible” criminal and by calling jurors’ attention to the remorse Jennings expressed in his confession to killing the Officer Howard.
Prosecutors countered by stressing Jennings’s criminal history. The strategy was effective. At the time of his trial, a jury in a capital case was mandatorily required, under Article 37.07(b) of the Texas Code of Criminal Procedure, to consider the following three “special issues” before returning a death sentence:
- “whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
- “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
- If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”
The jury decided these three issues against Jennings. It returned a death sentence verdict.
As irony would have it, several days before the jury returned the Jennings death verdict the U.S. Supreme Court in Penry v. Lynaugh ruled that these three special issues violated the Eighth Amendment’s prohibition against cruel and unusual punishment because they were not broad enough for the jury to consider mitigating evidence, such as a defendant’s expression of remorse, intelligence deficiency, or child abuse.
Robert Jennings Death Penalty Upheld, Executed
After the Penry decision, Jennings repeatedly tried to have his death sentence set aside because his jury did not consider all the mitigating evidence in his case. The State responded to these post-conviction efforts by pointing out that the Supreme Court has never held that expressions of remorse, standing alone, are sufficient to undermine a death sentence. In her Tribune piece, McCullough quoted Texas Assistant Attorney General Ellen Stewart-Klein as saying:
“In this case, Jennings attorneys presented their limited evidence of remorse to the jury. And the jury rejected.”
Arthur Williams Death Sentence Vacated
An expression of remorse, however, was enough to get the death sentence imposed on another Harris County defendant convicted in a cop killing case.
This past December the Houston Chronicle reported that 59-year-old Arthur Williams had his death sentence vacated under the Penry rule and a life sentence with parole eligibility and an additional 60-year sentence imposed for a prior aggravated assault. In addition to the bad jury instructions, which would eventually lead to a new sentencing hearing, defense counsel presented evidence that the “practice and policy” of the DA’s office at the time was to strike all black jurors.
Not Eligible for Parole Until 100
“He won’t be eligible for parole until he’s nearly 100 years old,” Harris County prosecutor Lori DeAngelo was quoted as saying by the newspaper.
Williams had been sentenced to death for the April 28, 1982 killing of Detective Daryl Shirley while trying to avoid arrest for an outstanding Minnesota.
Tale of Two Cases
Up to the last moment before he was executed on January 30, 2019, Jennings’ attorneys tried to use the Williams case as a basis for having his death sentence set aside. It did not work.
One of Jennings’ attorneys was Houston criminal defense attorney Randy Schaffer who told the U.S. Supreme Court in a last-ditch effort to save Jennings from execution that:
“Both Williams and Jennings exhibited remorse after killing a police officer in Houston. They were convicted and sentenced to death in the same court. However, they have been treated differently thereafter.”
The Court did not listen. The result: One man lived; the other died.
According to the Houston Police Department, 83 police officers have been killed in the line of duty since 1860: 69 by gunfire, 11 through vehicular assault, and 1 by physical assault. Not all the offenders who killed those officers were executed.
Texas Puts 22 to Death for Killing Law Enforcement Officers Since 1982
Robert Jennings, however, was unfortunate enough to join the 22 other offenders put to death in this for killing law enforcement officers since Texas resumed executions in 1982. The others are:
- 1982 – Thomas Barefoot
- 1987 – Elisio H. Moreno
- 1993 – Ramon M. Facundo
- 1993 – Lionel T. Herrera
- 1997 – Michael L. Lockhart
- 2000 – David J. Hittle
- 2002 – Randall W. Hafdahl
- 2005 – Ronald R. Howard
- 2007 – Jonathan B. Moore
- 2007 – Charles E. Smith
- 2008 – Michael A. Rodriquez
- 2010 – Kenneth Mosley
- 2010 – Joshua J. Maxwell
- 2010 – David L. Powell
- 2011 – Franklin M. Garcia
- 2012 – George A. Rivas
- 2015 – Donald R. Newbury
- 2015 – Kent W. Sprouse
- 2015 – Manuel F. Garza
- 2015 – David L. Lopez
- 2015 – Licho Escamilla
- 2018 – Joseph C. Garcia
- 2019 – Robert Jennings
Death Penalty in US is Unfair, Unjust and Racist
The ACLU has stated its official position that “the death penalty system in the US is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place. People of color are far more likely to be executed than white people, especially if the victim is white.”
We agree. There is nothing fair about sparing one man’s life in December for killing a law enforcement officer and putting another man to death in January for killing a law enforcement officer—both of whom were tried and convicted in the same court, in the same county.