McCarthy is on death row for a 1997 murder of her neighbor. She is to be executed on Wednesday, and will be the number 500 to be put to death by the state of Texas. Capital punishment in the state is more utilized than anywhere else in America.
"She is a very spiritual person. She believes what's meant to be is meant to be, and it's all in God's hands," said Maurie Levin, McCarthy's legal counsel since January. Now Levin has filed a final opportunity for a stay of execution with the Texas court of criminal appeals. The filing will argue that McCarthy suffered under two flaws in the death penalty case.
"As it turns out, Kimberly McCarthy is an African American woman scheduled to be the 500th person to be executed in Texas. Her case raises two of the most typical issues in the administration of the death penalty: race discrimination and the quality of counsel," Levin told the Guardian.
Levin charges that the 2002 trial was rigged through what he describes as blatant racial discrimination. He asserted the case was clearly racially charged from its very outset due to McCarthy being African-American and the victim being white.
Out of the 64 prospective jurors for the trial, four were non-whites that made their way to the final selection. Three of those four were rejected thanks to strikes by the prosecution lawyers.
Such a habeus application has been used many times. In 2005, an investigation held by the Dallas Morning News found that many prosecutors were pointedly excluding black jurors at twice the rate of their white counterparts.
Levin has taken his concern further, and in a second filing, she asked the judge of the Texas court of criminal appeals to rescue McCarthy on the grounds that the presiding judge served in the same Dallas County prosecutors' office. Levin stated it was a county where discriminatory jury selection was known to exist.
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