DATE: Wednesday, October 22, 1997           TAG: 9710220559

SECTION: FRONT                   PAGE: A3   EDITION: FINAL 

SOURCE: STAFF AND WIRE REPORT 

DATELINE: WASHINGTON                        LENGTH:   62 lines

SUPREME COURT WARNS TEXAS ON DEATH PENALTY

Four Supreme Court justices have warned Texas officials that their rules in death penalty sentencing may be unfair to some convicted killers.

The warning was attached to the court's refusal to consider the case of Texas death row prisoner Arthur Brown Jr. Brown was sentenced to death by jurors who were never told that, if sentenced to life, he would be ineligible for parole for 35 years.

Texas law decrees that, while jurors in non-death penalty cases can be told when a defendant will be eligible for parole, jurors in death penalty cases cannot.

That rule, noted Justice John Paul Stevens, ``unquestionably tips the scales in favor of a death sentence that a fully informed jury might not impose.''

A Virginia appeal, similar to Brown's, was filed with the U.S. Supreme Court earlier this year. In that case, convicted Norfolk killer Derek Barnabei argued that jurors should have been told he would not have been eligible for parole for 25 years if sentenced to life.

Barnabei was sentenced to death for a crime committed in September 1993 - 16 months before Virginia's ``true life sentence'' went into effect. Under the new law, those sentenced to life for capital murder are ineligible for parole. Under the old statute, which applied to Barnabei, those sentenced to life were parole-eligible after 25 years.

The high court denied Barnabei's appeal without comment on May 12. Barnabei, whose case is now pending in the Virginia Supreme Court, will have two more shots at the U.S. Supreme Court during the appeals process.

In his statement, Stevens also said that there is ``obvious tension'' between the Texas law and a 1994 Supreme Court holding that convicted murderers can tell juries when there's no chance they could be paroled if sentenced to life.

Three other justices - David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer - joined Stevens' opinion.

But the four did not vote to hear Brown's appeal. That means Brown's death sentence, already upheld by the Texas Court of Criminal Appeals, still stands.

Stevens' warning to Texas could have implications for Virginia, said Michelle Brace, a lawyer with the Virginia Capital Representation Resource Center in Richmond.

``It has two implications for Virginia,'' Brace said.

``One is that it suggests the court may be more willing to consider this issue in a Virginia case in the future. And secondly, it puts Virginia on notice that at least four of the nine justices have serious concerns about the failure of states, including Virginia, to give this information to juries.''

In Virginia, juries are never told about a defendant's parole eligibility except in death penalty cases where a defendant would be ineligible for parole if sentenced to life.

In that sense, said Norfolk Commonwealth's Attorney Chuck Griffith, the situation in Virginia is the opposite of that in Texas.

``We have no statute in effect here that creates the kind of inconsistency they have in Texas between the treatment of capital defendants and non-capital defendants,'' Griffith said.

The four justices who expressed misgivings with Texas' death penalty procedures served notice that they're carefully watching how states let juries choose between death or life in prison for convicted murderers. MEMO: Laura LaFay and The Associated Press contributed to this report.

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