Kimberly McCarthy was executed in Huntsville, Texas, on June 26, 2013, for the murder of her neighbor Dorothy Booth, a 71-year-old retired college psychology professor. The killing took place in Booth's home in Lancaster, a suburb about 15 miles south of Dallas, in July 1997. Prosecutors said McCarthy, a former nursing home therapist who had become addicted to crack cocaine, came to the door asking to borrow sugar, attacked and killed Booth, took her wedding ring, and then drove off in her car, pawned the ring and used her credit cards.
McCarthy was convicted twice. The Texas Court of Criminal Appeals threw out her first conviction in 2001 because police had questioned her after she asked for a lawyer, and a second Dallas County jury convicted her again in 2002. At both stages of her case, evidence about the December 1988 deaths of two elderly Dallas women, Maggie Harding and Jettie Lucas, played a part. DNA evidence linked her to those deaths, according to news reports. She was indicted for them but never tried, and she denied any involvement. Her execution was the 500th in Texas since the state resumed executions in 1982, and she was the first woman put to death in the United States in nearly three years.
Dorothy Booth was a retired college psychology professor; the Court of Criminal Appeals referred to her as Dr. Dorothy Booth and described her as an elderly retired professor. She lived in Lancaster, and Kimberly McCarthy lived next door. Booth had a daughter, who testified at the retrial and identified her mother's stolen property. She had a godson, who spoke for the family at the time of the execution, and a best friend, the godson's mother, who was 87 in 2013. Her granddaughter was among the family members at Huntsville when the sentence was carried out.
At the end of the case her daughter called her "an incredible person who was taken before her time," in a statement reported by the Associated Press. Little else was reported about her life, her career or the college where she had taught.
Kimberly Lagayle McCarthy was born on May 11, 1961, according to the Texas Department of Criminal Justice. Her prison record lists the 12th grade as the highest grade she completed and gives her past work as occupational therapist, waitress, home health care and laborer. News reports described her as a former nursing home therapist, and The Nation called her a former occupational therapist from Lancaster.
She had one earlier prison term. TDCJ records a two-year sentence for one count of forgery, received in February 1990; she was paroled in June 1990 and discharged in December 1991.
She had married a man the Associated Press described as the founder of the New Black Panther Party. The two had separated before Booth's death, and he testified on her behalf at trial. In her last statement she thanked him as the father of her son. At some point she became addicted to crack cocaine, and prosecutors and reporters linked that addiction to the killing of Dorothy Booth. Her trial lawyer, Doug Parks, said in 2013: "I think when she's off dope, she's probably a pretty good person."
In December 1988, two elderly women were killed in Dallas. Maggie Harding was 81, according to the Associated Press; the Dallas Observer gave her age as 85. Jettie Lucas was 85. The Dallas Observer described both women as friends of McCarthy's mother. According to evidence reported by CBS News and the Associated Press, Harding was stabbed and beaten with a meat tenderizer, and Lucas was beaten with a claw hammer and stabbed; the Dallas Observer reported that Lucas was found in her kitchen.
Blood DNA evidence later linked McCarthy to both deaths, the Associated Press reported. She was indicted for the two killings but was never tried for either, and she denied any involvement. The evidence was instead put before the jury at the punishment phase of the Booth case, and the AP reported that it helped persuade jurors to choose a death sentence. Prosecutors told the jury that she may have killed the two women to get money for drugs, as the Austin Chronicle summarized the punishment evidence. The Chronicle also noted that because she was never tried, whether she committed the 1988 killings was never resolved in court.
Some time before her death, Dorothy Booth told her daughter about a call from a neighbor. According to the daughter's testimony, as the 2001 opinion records it, Booth said "the black lady that lived across the alley" had called asking to borrow money.
The state's account of July 21, 1997, is set out in the federal court rulings. McCarthy went to Booth's door saying she wanted to borrow sugar, and Booth let her in. Inside, McCarthy attacked and killed Booth and took her diamond wedding ring. McCarthy left with Booth's purse and the ring and drove away in Booth's car. The prison system's summary of the crime says she entered the house intending to rob Booth, that a struggle followed, and that Booth was stabbed many times.
Booth's caller ID later showed two calls from an anonymous number on the morning of July 22, at 6:19 and 6:29 a.m., according to the 2001 opinion, which gives July 21 as the date of the alleged offense. The Dallas Observer reported that Lancaster police found Booth stabbed to death in her dining room on July 22, 1997, with her left ring finger severed.
The trial evidence traced McCarthy's movements over the next three days. On July 22, a man testified, she was driving Booth's white Mercedes-Benz station wagon when she pulled up and asked him about buying crack cocaine. The Dallas Observer, citing a Dallas Morning News report, said she drove the car to a drug house, gave the keys to someone inside and said: "I need some crack bad, give me a bump or something." The Fifth Circuit summarized the state's evidence that she drove the Mercedes to a crack house to try to buy drugs.
The same day she pawned Booth's diamond ring for $200. On July 23 she used Booth's credit cards at several places, at least four times in all according to the Fifth Circuit, including a liquor store, the AP reported. In her own later written account, quoted by the courts, she also described selling items taken from the house, among them a portable stereo, a caller ID unit and a cordless phone, buying cigarettes with the cards and reselling them for cash, and renting out the car in exchange for drugs.
Police arrested McCarthy after finding her name on a pawn receipt, the AP reported. Sergeant Patrick Stallings of the Lancaster Police Department made the arrest on July 24, 1997. As she was taken into custody she tried to carry off a tote bag that held Booth's driver's license and several of her credit cards.
Officers then searched McCarthy's house. In a kitchen cabinet above the refrigerator they found a large knife stained with Booth's blood. It matched the other knives in her kitchen drawers, the 2001 opinion records. News reports later described it as a 10-inch butcher knife on which Booth's DNA was found. On August 18, 1997, she was charged with capital murder, on the ground that she had caused Booth's death in the course of a robbery.
What happened next decided the fate of her first trial. Stallings questioned McCarthy after her arrest. She asked him to write down her statement for her, then said she wanted a lawyer. Stallings stopped the interview. No lawyer was provided, and she was moved to the Lew Sterrett Justice Center, the Dallas County jail.
On July 28, Detective Dwayne Bishop of the Dallas Police Department called Stallings. McCarthy's husband had asked Bishop to talk to her. Stallings testified that he told Bishop she had asked for a lawyer; Bishop testified that Stallings never mentioned it. The next day, July 29, Bishop went to see McCarthy at the jail, read her the Miranda warnings, and she said she wanted to keep talking without a lawyer. Bishop did not try to find out whether she had one. She had not asked for the meeting.
She then gave a written statement. In it she blamed two men she called "Kilo" and "J.C." They had forced her, she said, to call Booth and get her to the door so that they could rob her and take her car. She said she waited in the car for "3 - 5 minutes or so" before driving away. The statement went on to describe the pawning of the ring, the use of the credit cards and the sale of the stolen goods. After she signed it, Bishop testified, she told him that parts of it were untrue, and said that if she was facing death "she wanted to get one rock of cocaine before she died." The Dallas Observer reported that an officer testified she had promised to confess if he gave her crack.
No evidence was ever found that either man existed, according to the AP. Her trial lawyer, Doug Parks, later said their existence could never be verified.
McCarthy's first trial was held in Dallas County in 1998. The trial court refused to suppress the written statement, and the state offered it as its last exhibit, through its last witness. Prosecutors used it in several ways: to cast doubt on whether "Kilo" and "J.C." were real, to show that she had called Booth that morning and knew a robbery was planned, to show that she stayed at the scene, to show her flight from police and her false statements, to establish a motive (money problems and a craving for crack), and to tie her to the knife. To show how long she had sat in the car, a prosecutor timed five minutes on his watch while Bishop sat silent on the witness stand. In closing argument the state mentioned the statement at least ten times, and in rebuttal it argued that she could be convicted as the killer, as a party, or as a co-conspirator, relying on the statement for each theory.
The jury found her guilty of capital murder on November 17, 1998. On the jury's answers to the special issues, the trial judge sentenced her to death. She arrived on death row on December 7, 1998, at age 37.
On December 12, 2001, the Texas Court of Criminal Appeals reversed the conviction and ordered a new trial. Judge Cathy Cochran wrote for the majority, joined by five other judges. Presiding Judge Sharon Keller dissented, joined by Judge Hervey, and Judge Michael Keasler did not take part.
The court held that the written statement had been taken in violation of McCarthy's Fifth and Fourteenth Amendment right to counsel. Under Edwards v. Arizona and Minnick v. Mississippi, once a suspect asks for a lawyer, "all interrogation by the police must cease" until a lawyer is provided or the suspect herself starts a new conversation. Neither had happened. The state argued that Bishop had not pressured her and did not know about her request. The court answered that what one officer knows is imputed to the police as a whole, and that the rule does not depend on good intentions or on whether a statement was voluntary. It called Edwards "a bright and firm constitutional rule."
Weighing the harm, the court pointed to how heavily the state had relied on the statement and to the weight a confession carries with jurors. It said it found "it impossible to say there is no reasonable likelihood" that the statement had materially affected the jury's deliberations. Because the error required a new trial, the court did not reach her other complaints. In a later summary, the Fifth Circuit noted that the appeals court had treated the statement as powerful enough to prove her guilty as a party or conspirator.
McCarthy was tried again in Dallas County in November 2002, this time without the written statement. A second jury found her guilty of capital murder and again returned answers that led to a death sentence.
Booth's daughter was the first witness. She identified her mother and her mother's stolen belongings. Later in the trial, while a police lieutenant described crime-scene photographs, she became upset, cried and left the courtroom with her husband. The defense asked for a mistrial, which was refused, and then invoked the rule excluding witnesses from the courtroom for the rest of the trial. Her lawyers had earlier agreed not to exclude her in exchange for the state's agreement that McCarthy's own family could stay in the courtroom. The courts later found that trade a reasonable choice: the daughter had sat through the first trial without incident, her testimony was limited to identifying property, and ten witnesses testified after her brief outburst before the jury deliberated.
At the punishment phase the state presented the evidence of the 1988 deaths of Maggie Harding and Jettie Lucas. The defense chose not to offer McCarthy's written statement at this stage. Her later lawyers said it would have helped her, because it suggested she was not the one who stabbed Booth and tied the crime to her addiction. The state courts disagreed: the statement was a self-serving declaration that Texas law would have kept out, and it also contained material that could hurt her, including claims contradicted by the physical evidence and, in the appeals court's earlier words, a picture of her as "an unrepentant liar" with a "cruel and greedy motive."
The retrial jury had 11 white members and one Black member, according to Amnesty International and the AP. McCarthy is Black; Booth was white. Her trial lawyer did not object to the prosecutors' jury strikes or ask for a hearing under Batson v. Kentucky, the Supreme Court decision that bars striking jurors because of race.
The Court of Criminal Appeals affirmed the second conviction and death sentence in 2004, in an unpublished opinion, and the U.S. Supreme Court declined to hear the case in 2005. A state habeas application followed. The trial court recommended denying it without a hearing, and on September 12, 2007, the Court of Criminal Appeals denied relief.
McCarthy then filed a federal habeas petition in the Northern District of Texas raising nine claims. They included complaints about her lawyers' handling of Booth's daughter in the courtroom and of the written statement, about the wording of the Texas special issues, and about the performance of her appellate lawyer. On May 9, 2011, U.S. District Judge Reed O'Connor denied every claim and refused a certificate of appealability. On July 11, 2012, a Fifth Circuit panel of Judges Jolly, Garza and Stewart also refused one, in an unpublished opinion. The AP reported that the ruling moved her a step closer to execution. Her state-appointed appellate lawyer, according to her later attorney as quoted by Amnesty International, had visited her only once in the ten years he represented her.
In September 2012 the Dallas County District Attorney's office announced that McCarthy had been given an execution date of January 29, 2013. At that point she was one of 10 women on Texas death row and the only one with a date. Only three of the 482 people Texas had executed since 1982 were women, the AP reported.
In January 2013 the U.S. Supreme Court declined to review her case and the Texas Board of Pardons and Paroles denied clemency. Her lawyers asked Governor Rick Perry for a 30-day reprieve and asked District Attorney Craig Watkins, who had called for a law allowing death sentences to be challenged on racial grounds, to withdraw or change the date. Watkins at first rejected the request.
On January 29, less than five hours before the scheduled execution, State District Judge Larry Mitchell in Dallas granted a reprieve and moved the date to April 3 so that her lawyers could pursue the jury-selection claim. McCarthy, who was in a holding cell near the death chamber, was in good spirits and seemed calm before she learned of the delay, a prison spokesman said. Prosecutors had opposed the delay but did not appeal, and Watkins called it "appropriate." Before the reprieve, the former prosecutor Greg Davis told the AP: "She took the most defenseless, the most helpless people, people that trusted her, that she chose to attack." Doug Parks said that in prison "Kim would be absolutely no danger to anyone."
In March 2013 McCarthy asked Judge Mitchell to delay the April 3 date again while the Legislature considered a bill, filed on March 6 by Senator Royce West and Representative Eric Johnson, both Dallas Democrats, to bar racial discrimination in capital prosecutions. Watkins then said he wanted to wait to see what the Legislature did with several death penalty bills, and the execution was reset for June 26. The bill did not pass, the Austin Chronicle reported.
In June 2013 Maurie Levin, a University of Texas law professor who now represented McCarthy, filed a new application with the Court of Criminal Appeals. She argued that prosecutors had improperly excluded Black jurors and that both trial and appellate lawyers had failed her by not raising it. She relied on Trevino v. Thaler, decided 5 to 4 by the U.S. Supreme Court on May 28, 2013, which opened a route for some ineffective-assistance claims in Texas. She also asked Presiding Judge Keller and Judge Keasler, both former Dallas County prosecutors, to step aside.
On June 24 the court dismissed the application as an abuse of the writ, without reaching the merits, and refused a stay, saying the claims should have been raised earlier. The ruling was brief and unsigned. Judge Elsa Alcala, joined by Judge Cheryl Johnson, dissented and urged the court to reexamine its precedents in light of Trevino, writing that on that question "there is only the sound of crickets." Judge Cochran wrote a ten-page reply arguing that the court had no power to create the exception Alcala wanted. Judge Tom Price, joined by Judge Larry Meyers, agreed with the dismissal but not with Cochran's reasoning, writing that McCarthy could have raised the claim earlier and had not shown that her trial lawyer's failure to object harmed her. Levin called the decision "form over substance." Because it rested on procedure, she said, there was nothing to take to the U.S. Supreme Court: "If there was something to appeal, I would."
McCarthy was executed by lethal injection at the Walls Unit in Huntsville on the evening of June 26, 2013. She was 52. She was pronounced dead at 6:37 p.m., 20 minutes after prison officials began giving her a single dose of pentobarbital.
In her final statement she thanked her spiritual adviser, the father of her son, and her lawyer. "This is not a loss, this is a win," she said, according to the prison system's record. She said she was going home to be with Jesus and urged those listening to keep the faith. As the drug took effect she said "God is great" and closed her eyes, the AP reported. She did not mention Booth or Booth's family, or the fact that she was the 500th person executed in Texas.
Her former husband watched as a witness, according to the AP; The Nation reported that he waited across the road, and that three people expected to attend as her witnesses, her son among them, did not come. About 40 to 60 protesters gathered outside the prison, behind a police cordon, with a smaller group of death penalty supporters at the other end of the road.
Booth's godson said the number 500 was "just a number." "We're just thinking about the justice that was promised to us by the state of Texas," he said, adding that the family had waited 16 years. Booth's daughter thanked friends, family and law enforcement and said nothing could fill the family's loss. The godson's mother, Booth's best friend, said she would never heal, The Nation reported. A prison spokesman, Jason Clark, said: "We simply carried out the court's order." Levin said that "500 is 500 too many."
The execution was the 500th in Texas since the state resumed capital punishment in 1982, and Texas accounted for nearly 40 percent of the more than 1,300 executions carried out in the United States since 1976. McCarthy was the first woman executed in the country since Teresa Lewis was put to death in Virginia on September 23, 2010. The AP counted her as the 13th woman executed nationwide since 1976 and the fourth in Texas; the Austin Chronicle, counting from 1854, called her the fifth woman and the third Black woman executed in Texas. She was the eighth person executed in Texas in 2013.
Her case drew attention beyond Texas because of its race and counsel issues. Amnesty International issued urgent appeals before and after the execution. Levin said the "shameful errors" in the case, including race bias and ineffective counsel, made it a poor emblem for the 500th execution. In Austin, KUT radio marked the date with a history of the death chamber in Huntsville.
Proven in court and final: the capital murder of Dorothy Booth in July 1997, decided by the 2002 retrial verdict, affirmed on appeal and left in place by every later court.
Never tried: the December 1988 deaths of Maggie Harding and Jettie Lucas. McCarthy was indicted, the state told the sentencing jury that DNA evidence linked her to both, and a federal judge's summary of the case described the Booth killing as the last in a series of robbery-murders of elderly women she knew. No jury ever decided those charges, and she denied any part in them.
Her own version: in her July 29, 1997 statement she blamed two drug dealers, "Kilo" and "J.C." She later told the detective that parts of the statement were untrue, and no evidence that either man existed was ever produced. The statement was ruled inadmissible because it was taken after she asked for a lawyer.
Contested but never decided on the merits: whether prosecutors struck Black jurors at the 2002 retrial because of their race. The claim was raised only after her direct appeal and habeas cases had ended, and the Court of Criminal Appeals dismissed it on procedural grounds in June 2013.
Details that vary between accounts: Booth's age (70 in the prison system's summary, 71 in the courts and the press); Maggie Harding's age (81 or 85); the husband's surname (differs between the 2001 opinion and the press); the date of the killing (July 21 in the courts' records; the press reported that Booth was found on July 22); and the count of women executed in Texas, which depends on the starting year.
May 11, 1961: Kimberly Lagayle McCarthy is born.
December 1988: Maggie Harding and Jettie Lucas are killed in Dallas. McCarthy is later indicted in both deaths but never tried.
February 1990: received into prison on a two-year forgery sentence; paroled June 1990; discharged December 1991.
July 21, 1997: Dorothy Booth, 71, is killed in her Lancaster home.
July 22, 1997: two early-morning anonymous calls appear on Booth's caller ID; McCarthy is seen driving Booth's Mercedes and pawns the ring for $200.
July 23, 1997: Booth's credit cards are used at several places.
July 24, 1997: Sergeant Patrick Stallings arrests McCarthy; she asks for a lawyer; the knife is found in her kitchen.
July 29, 1997: Detective Dwayne Bishop takes her written statement at the Dallas County jail.
August 18, 1997: charged with capital murder.
November 17, 1998: convicted of capital murder; sentenced to death.
December 7, 1998: received on death row.
December 12, 2001: the Texas Court of Criminal Appeals reverses the conviction.
November 2002: convicted again at retrial and sentenced to death.
2004: conviction and sentence affirmed.
2005: the U.S. Supreme Court denies review.
September 12, 2007: state habeas relief denied.
May 9, 2011: federal habeas petition denied.
July 11, 2012: the Fifth Circuit refuses a certificate of appealability.
September 2012: execution set for January 29, 2013.
January 29, 2013: Judge Larry Mitchell grants a reprieve hours before the execution; new date April 3.
March 2013: execution reset for June 26 while the Legislature considers death penalty bills.
June 24, 2013: the Court of Criminal Appeals dismisses her final application.
June 26, 2013: executed at Huntsville, the 500th execution in Texas since 1982.