The death sentence Richard Hale Austin received for his role in the murder-for-hire fatal shooting of a Memphis undercover agent was affirmed Monday in a 4-1 decision by the Tennessee Supreme Court.
Austin has twice been sentenced to death for paying Jack Charles Blankenship to kill Julian Watkins in 1977. His first death sentence was affirmed by the Tennessee Supreme Court but overturned in 1997 by a federal court. After a second sentencing hearing, a Memphis jury again imposed the death penalty.
Writing for the majority, Justice Janice M. Holder said the issues raised by Austin in his direct appeal do not warrant a reversal of his sentence. Austin, 37 years old at the time of the crime, was convicted and sentenced as an accessory before the fact in the premeditated murder of Watkins. The victim’s work as an undercover agent resulted in illegal gambling indictments against Austin and others connected with a pool hall Austin owned in Memphis. He hired Blankenship, an escaped convict, to murder Watkins. Blankenship, who fired the fatal shots, pleaded guilty to first degree murder and received a life sentence. His accomplice, Terry Lee Casteel, pleaded guilty to second degree murder and received a 20-year sentence.
Issues raised by Austin, and addressed by the court in its opinion, were whether the trial court erred in excluding certain mitigating evidence during the sentencing hearing; whether the court erred in allowing victim impact testimony by Carolyn Watkins-Cupp and Steve Watkins, the victim’s widow and son; and whether the sentence was disproportionate.
“Having carefully reviewed these issues and the remainder of the issues raised by Austin, we conclude that they do not warrant relief,” Holder said in the opinion affirming a Court of Criminal Appeals decision in the case.
Also, she wrote, his sentence of death is not disproportionate when compared to similar cases in which the death penalty has been sought and a jury has determined the penalty.
Under state law, the court is required to review death penalty cases to determine whether the sentences are aberrant when compared to similar cases.
“. . . We have considered the entire record and conclude that the sentence of death has not been imposed arbitrarily, that the evidence supports the jury’s finding of the statutory aggravating circumstance, that the evidence supports the jury’s finding that the aggravating circumstance outweighs mitigating circumstances beyond a reasonable doubt, and that the sentence is not excessive or disproportionate,” Holder wrote.
In a dissenting opinion, Justice Adolpho A. Birch, Jr., said the process used by the court to compare cases is not effective.
“In a line of dissents, I have maintained that the comparative proportionality review process currently embraced by this court fails,” Birch wrote. “It fails because it does not operate to protect defendants from the arbitrary and disproportionate imposition of the death penalty.”
Birch said in his dissenting opinion that the protocol used by the court “just does not work.” He wrote that the proportionality test is too broad; the pool of cases used for comparison is too small; and the review process is too subjective.
“Until the issues I have continually raised are addressed, I hold that this court cannot thoroughly and adequately fulfill its statutory duty to review death penalty cases to ensure that a defendant’s death sentence is proportionate,” he concluded.
The majority, however, said the proportionality review process was sufficient and the aggravating circumstance found by the jury - that it was a hired killing - outweighed mitigating evidence presented during the sentencing hearing.
“In the present case, the victim was shot execution-style in the head and then several more times in the neck and chest,” Holder wrote. “The motive for the killing was to retaliate against the victim for his undercover work exposing Austin’s illegal gambling. The murder clearly was premeditated. . . Given the numerous similar cases in which the death penalty has been imposed, we are unable to conclude that the sentence of death imposed by the jury in this case represents an aberrant sentence.”
Concurring with Holder were Chief Justice Frank F. Drowota, III, and Justices E. Riley Anderson and William M. Barker.