by BRAD ROLLINS
A longtime death row inmate represented by a San Marcos attorney has been granted a new sentencing phase after the state’s highest criminal appeals court ruled that jurors at his 1985 trial were not told they could consider childhood abuse as cause to spare his life.
Gene Hathorn Jr., now 48, was convicted 24 years ago of killing his father, Gene Hathorn Sr., with a shotgun at his family’s home in Trinity County. Hathorn’s stepmother and half-brother were also killed, crimes for which Hathorn was charged but never tried. An accomplice and former co-worker at Rusk State Hospital, James Lee Beathard, was executed in 1999 for his role in the murders.
In an April 8 ruling, the Texas Court of Criminal Appeals said the original trial judge’s instruction to jurors were not flawed by legal standards of the time but are inadequate in light of subsequent case law established by the U.S. Supreme Court.
“Rather than characterize this as a jury charge error, we interpret the Supreme Court cases related to this particular issue to have broader due process implications,” Judge Lawrence Meyer wrote. “…It is likely that … the jury believed that all they needed to decide was whether he had acted deliberately and would likely be dangerous in the future, disregarding any concern they may feel that, given [Hathorne’s] troubled childhood, he may not deserve a death sentence.”
According to court records, Hathorn testified that his father regularly beat him and at one point shot his dog which Hawthorn then had to bury. Prosecutors said Hathorn sought to plant hairs and cigarette butts to implicate black people and intended to inherit his father’s $150,000 estate, not knowing he had been cut out the will weeks before.
Hathorne could receive another death sentence in his new punishment phase but his case will be helped, attorney David Sergi said, because “he has an almost perfect record while he’s been in prison.”
Sergi, who has four other death row clients, said, “I’m frankly opposed to the death penalty on moral grounds, but we’ve seen so many mistakes made in prosecutions. … Once you’ve executed somebody, it’s hard to make things right.”
One of the longest-serving of 350 prisoners on Texas’ death row, Hathorn achieved international notoriety last fall when he agreed, should he lose his appeals, to let goldfish eat his corpse as part of a death penalty protest by Danish artist Marco Evaristti.
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