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Death row inmate, 76, is ancient by Texas standards

By by Mike Tolson Houston Chronicle
Jan. 20, 2014 at 5:51 p.m.

Two weeks after he turned 40, Jack Harry Smith showed no signs of letting middle age slow him down. So on the first Saturday in January, he put on a ski mask, grabbed his pistol and a buddy, and went charging into a Pasadena convenience store.

As career criminals go, Smith never had been newsworthy nor successful. That changed by the time he ran out the front door of Corky's Corner, and it wasn't because of the small sack of cash in his hand.

Behind him lay the body of Roy Deputter, the store's bookkeeper who lived in a trailer behind the store and had rushed inside with a gun when he heard the commotion. Before him loomed capital murder charges.

Smith's lawyer says his client recalls little of the event. Prosecutors and lawmen typically are skeptical of convenient memory loss, but there's a good chance he is telling the truth. On the day that Smith earned his ticket to death row, Jimmy Carter was threatening to slap a tariff on imported steel, Egypt and Israel were closing in on a historic peace accord, and the Dallas Cowboys were on the verge of their second Super Bowl title.

Which is another way of saying that Smith is old. By the standards of Texas' death row, in fact, he is ancient. No one lasts that long in the nation's most aggressive capital punishment state, certainly not a three-time loser who has spent most of his life behind bars. This isn't California, which sends many people to death row but rarely executes them. The only inmates to escape the death chamber are those spared by appeals courts or those so mentally ill they are not competent for execution. And there are but a handful of those.

Smith is not one of them, and by rights he should not be alive. Yet he has beaten the odds and lingered on since 1978 - through six presidential administrations, countless Middle East negotiations and too many Super Bowls to remember. Tragedy has stalked his case for years and put his appeal on hold again and again. Now he is 76 and there's no end in sight, at least not one imposed by the courts.

Should that day ever come, Smith would be the oldest person in the U.S. to be put to death in modern times.

"There would be absolutely no purpose to be served by his execution," said his current attorney, David Dow, a University of Houston professor who oversees the law school's innocence project. "This was not a notorious case, or a case involving a child, say. This was an instance of guys who knew each other stealing from each other, as I understand it. He didn't kill a clerk. This case would not be prosecuted as a capital case if it happened today."

True or not, that particular notion has not deterred the Harris County District Attorney's Office from pursuing execution dates in other cases. But Dow said he doubts that Smith is high on anyone's to-do list.



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