"Another life gone because of bad law," is the Fort Worth Star-Telegram editorial. It appeared in the Friday edition.
On Nov. 19, Robert Lee Thompson, 34, became the 23rd person to be executed in Texas this year.
He should still be alive.
Not because he was a good man, because he wasn’t — or least he was not 13 years ago when the 21-year-old Thompson and his buddy, Sammy Butler, were involved in the armed robbery of a Houston store in which clerk Mansoor Bhai Rahim Mohammed was killed.
Evidence showed that Butler shot Mohammed to death, and for this act a Harris County jury sentenced him to life in prison.
Another jury sentenced Thompson to death.
Thompson was guilty of a crime that day. He shot a different store clerk, who survived the incident.
But now this criminal has fallen prey to a flawed, often-misinterpreted law and the callous decision of a governor focused on political ambition rather than justice.
The Thompson case speaks to the capriciousness of how capital punishment is applied in Texas: an actual killer gets to live while his accomplice dies for the same crime. It also brings into clear focus once again the bad piece of state legislation known as the "law of parties."
And:
On a 5-2 vote on Nov. 18, the Texas Board of Pardons and Paroles made a rare recommendation that the governor commute Thompson’s sentence to life in prison. Gov. Rick Perry, who is not obligated to follow the board’s recommendation, denied the request the afternoon of Nov. 19 and Thompson was executed 45 minutes later.
"After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed, I have decided to uphold the jury’s capital murder conviction and capital punishment for this heinous crime," the governor said in a statement. "There is no reason to set aside the capital murder conviction handed down by a Texas jury and upheld by numerous state and federal courts."
Wrong, governor. There was a reason. You simply were blind to it.
The governor, who is engaged in a tough re-election campaign against U.S. Sen. Kay Bailey Hutchison, perhaps could not see past next March’s Republican primary.
In 2007, Perry did follow the recommendation from the Board of Pardons and Paroles in commuting the death sentence of Kenneth Foster six hours before Foster was to have been executed. Foster also had been convicted under the "law of parties" statute, but the governor did not cite that as his reason for the commutation. Instead, he noted his concern that Foster and his co-defendant had been tried together.
Texas is one of only five states with a law of parties statute. It is the only state that applies that law in death penalty cases.
The Star-Telegram Editorial Board is on record calling for the Texas Legislature to address this awful and misapplied law. Bad people should be held accountable for their crimes, but execution based on the law of parties is not right.
A half dozen people have died under this law. That’s six too many.
Patrick McCann, Thompson's attorney, wrote the OpEd, "Texans deserve public, open clemency process," for the Sunday Houston Chronicle.
I represent the indigent condemned. This means that I try to keep those men and women on death row from being executed. It is not all I do as a criminal defense lawyer, but it is what I started doing fresh out of law school 15 years ago, and it is a still a large part of what I deal with every day. I started doing this work out of a combination of the intellectual arrogance of a young man and a curiosity as to how this system worked. I have satisfied the second, and the first has been, as my father once told me it would be, beaten out of me pretty thoroughly. I have stayed in this work because I cannot find a morally acceptable way to walk away from something that needs doing.
My colleague, Rodney Brown and I, recently persuaded the Board of Pardons and Paroles to recommend sparing the life of our client, Robert Lee Thompson. We were grateful for that vote, and for the consideration of the men and women who serve on the board. We were both deeply saddened when Gov. Rick Perry declined to follow the advice of his own appointees and did not exercise his powers of mercy. That is how it goes in this line of work. I wish brighter and better people than me were doing it most days, but I wanted the reader to know this information before they decide whether to continue on.
I am not starting a debate on the death penalty, as people's opinions are their own on this topic. I am simply here to discuss whether it is time we as a state looked hard at the way we decide who is or is not worthy of mercy, and thus, how our clemency and pardon process works. I cannot think of a better time to do this than around Thanksgiving, and as we approach the celebration of the life and death of history's most well known wrongfully convicted man. One of that gentle man's last acts was to forgive a condemned thief, if I recall correctly. We could probably do well to relearn this lesson.
And:
Our current procedures for requesting either a pardon in a noncapital case or a commutation of sentence in either a capital or noncapital case do not require an actual hearing. They do not require a public meeting, open to those who wish to attend. They do not require any explanation to the public for whatever reasons a person's request to have such relief was denied. They require no record, no witnesses, no affidavits, no depositions, nor even a short explanation of the board's reasoning, or the governor's in those rare cases where the two views diverge on a particular case. There is no rational standard for deciding when to grant commutation in non-capital cases, as no one seems to know or to have laid out when too much time is enough. To any outsider, the process seems shrouded in mystery, or at the very least difficult to understand.
This is a shame, because having dealt with the people whom the governor appointed to the Board of Pardons and Paroles, I have found them to be dedicated and hard-working men and women who take their jobs quite seriously. They deserve a more open procedure, one that would inspire confidence in the people of the state, who could see their system hard at work, and who could review the notes or witness statements of an open, public process. This is not what we have now, and it is a shame. It is a shame because given the number of individuals who have been publicly exonerated by the Innocence Project, and given the impact of the Texas habitual offender laws, it would seem sensible to have some process to correct or mitigate the impact of bad laws, mistakes in trials or the actions of corrupt police or other public officials. As it stands now, we do not, at least not in reality. The Houston Chronicle and other news agencies have detailed at some length the lack of clemency here in Texas, and the truth is that there are literally thousands of individuals who are in prison for nonviolent crimes, often for lengthy terms that do not comport with any actual public threat. They deserve the real chance for commutation. Likewise, there are individuals who finished their terms of sentence for minor crimes years ago and went on to lead enormously productive lives as law-abiding citizens. They merit the opportunity for an actual pardon. Finally, there are the wrongfully convicted, who deserve some accessible and open process to clear their names. As has been sadly shown these last few years, that process does not yet truly exist. Courts are reluctant to admit mistakes, nearly as much as police, prosecutors and defense attorneys.
All Texas citizens deserve to have an open, public clemency process, with actual mandated hearings, by which deserving individuals, without the intrusion of politics, can present recorded evidence of rehabilitation, reform, mitigating evidence and even actual innocence, in order to have a means of ensuring that the original results in their cases were the just ones. Whether that comes from a change in the rules the board uses, or an actual constitutional amendment to make that system a reality, it needs doing. The Supreme Court has always believed, perhaps a bit hopefully, that the clemency process could correct the all too human possibility of errors in the system. It is time we made that hope the truth here, and gave Texans a system that could be a model for others across the country. Shakespeare once wrote, in his play The Merchant of Venice, that “mercy is mightiest in the mighty.” It is time we proved that.
Earlier coverage begins is here and here. More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:
Another commentary on Texas clemency is:
In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.
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