Execution Report: John Balentine

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A jury found Balentine guilty of capital murder in April 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in 2002.

The core issue of Balentine's first rounds of appeals was his claim that his trial attorneys were ineffective because they failed to present mitigating evidence at his punishment hearing that could have prevented him from receiving the death penalty. U.S. case law concerning the allowable ways to raise ineffective assistance of counsel (IAOC) claims upon appeal is complex. Many IAOC claims are dismissed on procedural grounds, without ever being considered on their merits. Balentine received two execution dates, one in 2009 and another in 2011, which were both stayed while the courts decided whether the law permitted his IAOC claim to be considered. In 2012, the U.S. Supreme Court issued a ruling in Martinez v. Ryan that removed one of the procedural bars to IAOC claims. Balentine's lawyers attempted to seek relief using this new ruling, but the state courts, federal district court, and U.S. Fifth Circuit Court of Appeals held that the circumstances the Supreme Court attempted to remedy in Martinez did not exist in Texas, so the ruling did not apply to IAOC claims in cases coming from Texas. The Supreme Court overruled the Fifth Circuit in 2013, and Balentine's appeal was remanded down the line.

When finally ordered to consider Balentine's IAOC claim, a U.S. district court dismissed it as meritless. The court found that the trial attorneys were following Balentine's instructions. One, Paul Herrmann, testified that his strategy was to make proving Balentine's guilt as difficult as possible, and his strategy worked: the state offered to drop the death penalty in exchange for a guilty plea and a life sentence, but Balentine rejected the deal.

Another of Balentine's trial attorneys, Randall Sherrod, testified:

"[Balentine] told me, he said, 'With my background and the fact that I killed three Aryan Nation kids, they're going to try to stick a shiv in me every day.' And he basically told me that he would rather be on Death Row, where he wouldn't have to worry about that, and he said something to the effect of, 'Who in the hell wants to spend their life until they're fifty or sixty years old in the penitentiary?' And he said, 'I want the death penalty.'"

Sherrod further testified that he had mitigation witnesses ready to testify at Balentine's punishment hearing, but Balentine directed him not to call them.

Balentine did not dispute that he instructed his attorneys in this manner, but said he was influenced by their acquiescence, fatalism, and pessimism.

The district court denied Balentine's appeal. The Fifth Circuit affirmed this decision in 2021. All of his subsequent appeals were denied.

In January, Balentine was a plaintiff in a lawsuit against the Texas Department of Criminal Justice over the agency's use of doses of the lethal injection drug, pentobarbital, that had passed their expiration date. The TDCJ won the case, which was later rendered moot after it received a new batch of the drug and confirmed that this batch was now in use. Neither Balentine nor Wesley Ruiz, a prisoner executed last week, raised the expired drugs issue in their final appeals. Nevertheless, news outlets continue to imply that the TDCJ is currently using expired drugs and that this practice is still being challenged. The Texas Tribune reported that Balentine was "involved in an ongoing legal battle" over expired TDCJ drugs. The Associated Press wrote that Ruiz and Balentine were allowed to be executed "despite a civil court judge in Austin" agreeing that expired drugs should not be used.

In their final appeals, Balentine's attorneys claimed that Balentine did not get a fair trial because of racial bias. They presented a handwritten note that they labeled "James Durham trial notes," that included a sentence reading "Can you spell LYNCHING?" where an insert mark was made before the word "lynching" and the word "justifiable" was added. In their brief, they claimed that two of Balentine's trial lawyers passed this note between each other, with one writing the sentence "Can you spell lynching?" and the other making the "justifiable" insertion.

Attorney Randall Sherrod said on the day of Balentine's execution that he did not remember the note. He denied that he or James Durham, who died in 2006, had any racist attitudes toward Balentine.

"I think he got a fair trial," Sherrod said.

The appeal also presented a sworn affidavit made by the jury foreman, Dory England. England stated in Balentine's case, "life in prison without the chance of parole was never an option" because there would still be a chance he could get paroled, and then "I would need to hunt him down." He stated that four jurors did not want to give the death penalty, but "I am pretty stubborn and pretty aggressive" and "made it clear" that "the death penalty was the only answer."

England, who has died since giving the affidavit, said that race was not a factor in the deliberations. He stated that one man "started going off about this black guy killing these white teenagers. I corrected him and said a man shot three other people" and warned him that if he made any more racial remarks, he would have to report it to the judge.

News articles about Balentine's case universally omitted any mention of Balentine and Chris Caylor being friends at one point and only incurring his and Mark's animus after he beat Misty. Instead, the media claimed that the Caylors hated and threatened Balentine simply because they could not tolerate a black man being in a relationship with their sister and cousin.

As witnesses entered the viewing rooms adjacent to the execution chamber, Balentine jokingly asked someone standing near the gurney where he was strapped down to remove the sheet covering the lower two-thirds of his body "and massage my feet," chuckling. After a brief prayer from a spiritual advisor who held Balentine's left foot with his right hand, Balentine made a short statement thinking his friends for supporting him. He then turned his head the other way to look at seven relatives of his three victims.

"I want to apologize for the wrong I did to y'all. Forgive me. I'm ready, ma'am." he said.

The lethal injection was then started. He was pronounced dead at 6:36 p.m.

The victims' witnesses, which included Misty, her mother, and the mothers of the other boys, shared high-fives before leaving the death chamber. They declined to speak with reporters afterward.

By David Carson. Posted on 9 February 2023.
Sources: Texas Department of Criminal Justice, court documents, Associated Press.