The StandDown Texas Project

Board of Pardons & Paroles Recommends Commutation in Law of Parties Case

Allan Turner writes, "Board: Commute death sentence in Houston case," for the Houston Chronicle.

The state pardons board today recommended that Houston killer Robert Thompson's scheduled Thursday execution be commuted to life in prison after his lawyer successfully argued that he was not the triggerman in a December 1996 convenience store robbery-murder.

Gov. Rick Perry, who has only once in his tenure as chief executive voluntarily commuted a death sentence, was expected to rule on the case tonight or tomorrow.

“I'm too scared to be optimistic,” said Thompson's attorney Pat McCann, “but Perry has been receptive to law of parties cases.”

Thompson was sentenced to death in a law of parties case stemming from the slaying of Mansoor Rahim in a Dec. 5, 1996, robbery of a Braeswood Boulevard convenience store. Thompson's partner in the crime, Sammy Butler, fired the fatal shot, but was sentenced only to life in prison.

Under the state's law of parties, all participants in a crime are held fully responsible and can be assessed the death penalty.

Perry's office did not immediately respond to queries about when the governor might decide the case, but McCann said the governor's legal counsel advised him a decision likely would come tonight or tomorrow.

Although Perry has commuted death sentences in accordance with U.S. Supreme Court decisions, only once, in the case of San Antonio killer Kenneth Foster, has the governor commuted of his own accord.

Foster was convicted of capital murder in a law of parties case although he was not the triggerman. His death sentence was commuted in August 2007.

McCann said executing Thompson would neither deter crime or provide retribution.

Governor Perry may accept the Board's recommendation and commute Thompson's death sentence, however, he is not obligated to do so.  He will announce a decision Thursday.

In 2004, the Board recommended that he commute the death sentence of Kelsey Patterson due to Patterson's severe mental illness.  Perry rejected that recommendation and Patterson was executed.  As noted by Allan Turner, Perry's only commutation of an inmate facing imminent execution was that of Kenneth Foster.

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:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Lise Olsen on Gov. Perry & Clemency

"Perry uses clemency sparingly on death row," is Lise Olsen's report in the Sunday edition of the Houston Chronicle.  It's a must-read.  Here are extended excerpts:

In nearly nine years as Texas governor, Rick Perry has never spared a life based on a claim of innocence and only once delayed an execution in such a case, according to a Chronicle review of public records, clemency statistics and information from the governor's office.

During that same period, officials in other death penalty states granted clemency for humanitarian reasons at least 200 times — 171 based on questions of innocence in Illinois alone.

Texas has executed 200 convicts under Perry's watch, but he has spared just one condemned man's life in a case in which he was not compelled to do so by the U.S. Supreme Court. In that case, the inmate Perry saved in 2007 was not a killer but the admitted driver of a getaway car, condemned alongside the triggerman in a joint trial under Texas' tough “law of parties.”

Clemency — the use of executive power to reduce, forgive or delay a sentence — is considered the last fail-safe in the death penalty review process nationwide.

Yet in Texas, it is almost never granted. In fact, at least 50 of the past 200 executions were carried out without any clemency board review at all, a Chronicle analysis of state execution and parole board statistics shows. Other death row inmates' final pleas for mercy were rejected for arriving after the board's deadline.

Most of the nation's 35 death penalty states grant clemency powers to the governor. In the other eight states, including Texas, the governor relies on recommendations from a parole board. Perry uses the State Board of Pardons and Paroles, whose members he appoints, to decide whether to commute death sentences or grant longer reprieves — though he can and has carried out an execution the board voted to halt.

On his own, the governor can issue last-minute reprieves of up to 30 days. Perry has done so only twice.

And:

In Texas, alone among the states that use parole boards for execution cases, the board never meets to review applications from the condemned. Instead, its members vote via fax. Efforts to reform the process have been unsuccessful.

“No matter where you stand on capital punishment, I think we can all agree that life and death decisions should be taken more seriously than sending a fax,” said Sen. Rodney Ellis, D-Houston, a longtime reform advocate and death penalty supporter who oversaw three executions as acting governor in 2000.

“Since 1999, I have been pushing legislation to make the Board of Pardons and Paroles' clemency process in death penalty cases more fair and open, to at least get on a conference call before they vote to take someone's life,” he said.

Paddy Burwell, a retired Exxon geophysicist who served on the parole board from 1999-2005, recalled several troubling death row reviews when he said he received subtle pressure from other members to vote against clemency.

“I don't think they care whether a person is guilty or not guilty,” Burwell said.

Perry had used his power to issue last-minute delays twice before Willingham's execution in 2004. But neither involved a claim of potential innocence. He granted a 30-day reprieve in 2002 to allow authorities to interview a condemned man about other crimes. He delayed another execution because of court closures caused by the Sept. 11 attacks.

Perry granted his first and only reprieve for a death row inmate claiming innocence in December 2004, 10 months after Willingham's execution. Acting on a board recommendation, Perry delayed for 120 days the execution of Frances Newton, a Houston woman convicted of the 1987 shooting of her husband and children, “to allow the courts the opportunity to order a retesting of gunpowder residue on the skirt the defendant wore at the time of the murders and of the gun used in the murders.”

And:

In 2005, Perry commuted the sentences of 28 death row inmates convicted of murders committed before turning 18. Those commutations were ordered by the U.S. Supreme Court decision. He did the same thing in the two other cases involving severely mentally disabled offenders affected by another high court decision.

Only rarely has the Texas parole board recommended commutation of a death sentence without a high court mandate. But it did so in May 2004.

Kelsey Patterson shot and killed two people in Palestine in 1992 and then returned home, laid down his gun, removed everything but his socks and began walking up and down the street. Though found competent, Patterson, a paranoid schizophrenic, ranted at trial about devices planted inside him. As his execution approached, Patterson failed to recognize his lawyers. The board voted to spare his life.

Perry sent him to his death.

In 2007, the board again recommended commutation in the case of Kenneth Foster, the admitted getaway driver in a San Antonio murder who had been convicted in the same trial as the shooter. Perry commuted Foster's sentence to life in prison on the day he was to have been executed.

More on Kenneth Foster's 2007 commutation is here. Unfortunatley for Francis Newton, evidence from her trial was not properly stored and items that could have been tested had been contaminated.  She went to her death proclaiming her innocence.

There's much more in the clemency category index, including:

• Clemency and Kenneth Foster
  
• A New Examination of Clemency
• The Role of Mercy

The Appendix of The Role of Mercy contains comparative state information.

Perry Keeps Willingham Memo a Secret

That's the title of another R.G. Ratcliffe report in today's Houston Chronicle.  LINK

Embroiled in a national controversy over whether he allowed the execution of an innocent man, Gov. Rick Perry adamantly has refused to release an advisory memo from his general counsel about granting a 30-day reprieve for Cameron Todd Willingham.

“That information has been privileged information back when Ann Richards was the governor and George Bush was the governor, and I suggest it will be privileged information after I am the governor,” Perry told reporters last week.

Perry's office has a demonstrated record of applying the attorney-client privilege to him.

When a national news organization in 2003 asked the state archives for the execution memoranda written for former Gov. George W. Bush, there was no objection from Perry's office to the public having the information. Because of Perry's silence, Attorney General Greg Abbott ordered the documents' release.

But when the Houston Chronicle and other news organizations sought similar memos written for Perry by his general counsel, the governor's office has fought it repeatedly and obtained rulings from Abbott that the information does not have to be made public.

It is part of a pattern, a shroud of secrecy that has descended on the governor's office since Perry took over as governor from Bush.

“Taxpayers are being shortchanged when it comes to the public record for this governor,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas. “That's not what transparency is all about.”

And:

Perry's office has sought rulings from Abbott's office 173 times against releasing records, and he twice sued Abbott when he didn't like a ruling that records should be made public. Both lawsuits later were dropped.

The most recent brush is over releasing copies of a clemency memo written for Perry prior to the 2004 execution of Willingham for the murder of his three daughters in a Corsicana house fire. Shortly before the execution, Perry's office received a forensics report that the fire could not be proved to be arson.

Peggy Fikac's Chronicle column today is, "Perry's fingerprints all over state."

So, this is what you get with a governor who's appointed everyone to everything after nearly nine years in office: You name it, Gov. Rick Perry has a hand in it.

You get landmarks, such as his appointment of Eva Guzman as the first Latina to serve on the Texas Supreme Court.

And you get landmines, such as his nationally controversial replacement of Forensic Science Commission appointees looking into whether arson evidence supported the execution of Cameron Todd Willingham in his children's deaths.

Perry appointees oversee and administer agencies on everything from transportation to prisons, public safety to health care for the poor, public schools to state universities to environmental regulation.

“He stands astride Texas state government,” said SMU political scientist Cal Jillson, noting that because of six-year staggered terms on appointed boards, such a clean sweep can only can happen with longevity.

How you see that depends on how you view Texas' longest-serving governor. Critics see a heavy-handed use of power; his camp says he wields his authority responsibly.

Since taking office in December 2000, the GOP governor has made 4,759 appointments, including reappointments and replacements. That's 1,500 more than George W. Bush, who left in his second term to become president. It's nearing twice as many as one-term Democratic Gov. Ann Richards.

Earlier coverage of Todd Willingham begins with the preceding post; a related post on Gov. Perry's secrecy, here.  One controversial Perry appointee to the Board of Pardons and Paroles, Shanda Perkins, was rejected by Texas Senators in this year's legislative session, as noted here.

Prison Release Is the First Surprise of Many

That's the title of Cindy Horswell's report in today's Houston Chronicle.  LINK

When Michael Eubanks was convicted of capital murder in 1978 and given a life sentence, his hair was as flaming red as his temper.

The 20-year-old from Houston got into prison fights daily. His first year he was even thrown into solitary confinement for organizing what officials called a mutiny.

After all, he never expected to make it out of prison alive. Nobody cared what happened to him. He didn't know his birth parents and had burned bridges with his adopted ones. He saw his chances for parole as “slim to none.”

Yet, after three decades in a 6-foot-by-9-foot cell, he felt he had mellowed like his strawberry-blond hair.

He's now 52. He earned a college degree behind bars and became a master leather craftsman.

Still, since becoming eligible for parole in 1997, Eubanks' application had been rejected five times. In Texas, parole for capital murder is next to impossible. Again he pensively waited this summer to learn his fate. He didn't feel anything like the person who made prison his home, never expecting to rejoin society.

And:

He had barely squeaked past with the necessary five of seven votes from the state's parole board. Harris County prosecutors sent a letter of protest based on the “sheer brutality of the crime.”

Family members of his murder victim could not be reached for comment, but the Houston mayor's crime victim advocate, Andy Khan, found Eubanks' release “surreal,” believing anyone committing such an insidious act should remain imprisoned until he dies. In the past 14 years, nearly 2,000 capital murderers serving life sentences have been eligible for parole in Texas, but only 3 percent made it, records show.

The granting of Eubanks' parole was his first surprise.

One of his Christian exit courses was taught by former district Attorney Carol Vance, who was not only the namesake of the Sugar Land unit but also a prosecutor who helped send Eubanks to prison.

“I recognized him the moment he walked in the room,” Eubanks said. “I once hated him with a passion, but now I admire him.”

Although Vance said he's been conned before, he said he would trust Eubanks as his next-door neighbor.

Upon his release, he moved to the Isaiah House, a halfway house in northeast Houston. He landed a job quickly, working as sales manager for an electric sign company.

However, the most amazing development has been finding his biological family.

DNA, the BPP, and 'Sex' Crimes

There are two news articles today involving the Board of Pardons and Paroles.  One involves a new law passed by Texas legislators in this year's legislative session; the second, a BPP practice under fire. The second story may give even more concern for application of the new law. 

Today's Wall Street Journal reports, "Links to Sex Crimes to Follow Texas Suspects," by Ann Zimmerman.  Here's an extended excerpt:

Desirée Wood gave up hope that the man who raped her 20 years ago in Dallas would ever be caught and sentenced for the crime. Now, she says, she has reason to believe her attacker might see some form of justice, after all.

On Tuesday, a law takes effect in Texas that lets prosecutors and parole boards for the first time see DNA evidence that links a suspect to an old sexual assault, even though the statute of limitations has expired on the case and the suspect was never tried. Previously, there would be no record linking the suspect to the old crime.

Supporters of the law, the first of its kind in the country, hope it means that suspects in those old cases will face more-vigorous prosecutions and sterner parole boards should they find themselves in trouble with the law again. Opponents say the law could rob suspects of due-process rights.

The change attempts to close a gap created by improved technology and an outdated law. Advances in genetic testing have enabled prosecutors to access even the smallest DNA samples to identify suspects in old criminal cases. But even though the Texas Legislature in 2001 removed the state's five-year statute of limitations on sexual-assault charges, the change doesn't apply to alleged assaults before 2001.

In Ms. Wood's case, the DNA evidence collected after her rape 20 years ago was processed by the Dallas Police Department in 2008 as part of its novel Sexual Assault Cold Case Program, which focuses on cases too old to prosecute.

The results of the DNA test were fed into a national crime database and matched the profile of a Louisiana man who has been in and out of prison for burglary and other small offenses. He has denied to police that he raped Ms. Wood, but under the new law, the DNA results will be attached to his criminal file maintained by the Texas Department of Public Safety.

"The next time he gets in trouble for petty things, the prosecutors will see this guy is a bigger threat," said Ms. Wood, who said she struggled for years after the attack with anger issues and nightmares.

The new Texas law was conceived and championed by a small group of rape survivors who had joined a Dallas Police Department support group launched as part of the city's cold-case project. Reopening old cases also can reopen emotional wounds, and though the women were grateful the police were trying to identify their attackers, for many that wasn't enough.

"The women wanted the men to be held accountable in some way," said Sgt. Patrick Welsh, who runs the department's sexual-assault unit and launched the cold-case program nine years ago.

The law has its critics. The American Civil Liberties Union is concerned that it could punish suspects without the benefit of due process. After objections from the ACLU, the proposed law was revised to allow only law-enforcement agencies to access DNA information linking someone to an old sexual assault. The law also allows suspects to petition for removal of the information from their files if they believe it has been wrongly included.

Mike Ward reports, "Court cases forcing change at Texas parole agency," in today's Austin American-Statesman.

U.S. District Judge Sam Sparks had heard enough. After several days of listening to attorneys for the State of Texas defend the state parole board's operations, he became exasperated by the testimony of a parole board lawyer.

"The lady is wrong. She is stating issues of the law that are wrong," he told the jury.

The rare display of judicial pique resulted in a mistrial after state lawyers objected that his remarks could have improperly influenced jurors. But Sparks had already made it clear that he had serious questions about whether parole board policies violate a prisoner's right to due process.

Sparks is not the first judge to make such findings. In three other cases in two years, Austin federal judges have questioned the legality of the state's policies for placing restrictions on parolees, particularly sex offenders, who face some of the strictest conditions on their parole. Across Texas, parole officials said, more than a dozen other lawsuits on the issue are pending.

The court cases have highlighted criticism of the parole board for not taking time to adequately review parole cases, for operating in secret, for not detecting errors in paperwork and for placing conditions on parolees that are not justified by the evidence. Although most of the cases so far have dealt with sex offenders, observers say that changing the rules for those cases could open the door to broader changes, including more openness.

Although most Texans probably find it hard to sympathize with red-tape travails of convicted felons, a growing chorus of former and current parole officials agree that systemic troubles that have nettled Texas' secretive system for decades seem to be coming to a head.

"This is all on a collision course," said Scott Medlock, director of the prisoner rights program for the Austin-based Texas Civil Rights Project. "Three federal judges and two appellate courts have told them the system has to change ... but the state's litigation strategy is that the (5th U.S. Circuit Court of Appeals) will bail them out. I don't think so."

For their part, state parole officials say the current process is constitutional.

"We have been advised by attorney after attorney after attorney that it is correct," said Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles.

Even so, some officials on both sides concede that some change appears to be coming.

Related articles are in the TX Board of Pardons and Paroles category index.

Controversial BPP Nominee Rejected by Texas Senate

Mike Ward reports, "Shanda Perkins nomination busted," on the Austin American-Statesman Postcards blog.

In a rare public rebuke, the Texas Senate this afternoon just blocked the controversial nomination of unemployed Burleson banker Shanda Perkins to become a member of the state Board of Pardons and Paroles.

The Senate vote was 24-7 to send Perkins’ nomination back to the Nominations Committee, where it is expected to die.

“This person is not qualified,” said state Sen. John Whitmire, D-Houston, who moved to block the confirmation. “This is not a partisan issue. This is not a personal issue … This is a life-and-death position. It demands qualifications.”

Perkins’ nomination, which had been approved last week by the Nominations Committee, was had been set for Senate confirmation today along with dozens of other nominees — including three other nominees to the parole board, all of whom Whitmire said were highly qualified compared to Perkins.

Whitmire said Perkins has no college degree, while the others “have multiple degrees,” and she has no criminal justice experience, as the others do. Whitmire said while Perkins had done some volunteer work in prison ministries, “that is not enough” to qualify her for the $95,000-a-year, full-time job.

And:

Sen. John Carona, R-Dallas, joined with Whitmire to block the nomination. “The basis question is: Are there more qualified people out there?” Carona said.

The Senate agreed.

The four votes to confirm the nomination were Sens. Craig Estes, R-Wichita Falls; Troy Fraser, R-Horseshoe Bay; Mike Jackson, R-La Porte, chairman of the Nominations Committee, and Jane Nelson, R-Flower Mound.

Earlier coverage of the Perkins' nomination begins here.

A Texas Senate Hearing for Shanda Perkins

"Perry appointee criticized as unqualified," is Jim Vertuno's AP report, via the Houston Chronicle.

One of Gov. Rick Perry's nominees to the state Board of Pardons and Paroles is facing opposition from critics who say she has no criminal justice experience and is best known as a Republican campaigner and crusader against the sale of sex toys in Texas.

Shanda Perkins, a retired banker from Burleson, was appointed by Perry in February to serve on the board that has the power to grant or revoke parole, and recommend when the governor should grant clemency or a pardon.

If approved by the Senate, she would serve a term that expires in 2015.

Opponents, including the American Civil Liberties Union of Texas, say she is unqualified to serve on the board that sometimes makes life and death decisions.

Perkins' banking expertise includes marketing, business trusts and retirement accounts. She is also a past ambassador of the Burleson Chamber of Commerce and has been a youth pastor and Sunday school teacher.

Appearing before the Senate nominations committee on Wednesday, Perkins said she is qualified to serve on the parole board because she has often counseled youth and women who have been through drug and physical abuse and had family members in prison.

"I can bring empathy to the situation as well as uphold the law," Perkins said before her nomination was sent to the full Senate on a 4-1 vote. Sen. Eliot Shapleigh, D-El Paso, cast the only no vote.

The panel also approved the re-nomination of board member Juanita Gonzalez and chairwoman Rissie Owens and the nomination of new member Thomas Leeper.

The ACLU sent Perry's office a letter Wednesday saying Perkins' has "no relevant qualifications for the position and no identifiable experience in the area of corrections policy" and her nomination should be withdrawn.

Perkins' approval "will fail to promote fairness on the parole board or confidence in the criminal justice system," the letter said.

No one testified against Perkins' appointment in the hearing.

Shapleigh questioned Perkins about her role in a 2004 case in Burleson where police arrested a woman who was selling sex toys in apparent violation of a city ordinance and what was Texas law at the time.

Perkins said she had informed city officers about the city ordinance that prohibited the sale of sex toys as a business or near a school.

Perkins said she did not file a criminal complaint that led to the arrest, which she called "wrong" and "terrible." The state law banning the sale of sex toys was ultimately ruled unconstitutional by a federal appeals court in 2008.

In February, Perkins distributed fliers linking U.S. Sen. Kay Bailey Hutchison to President Barack Obama and abortion rights. Perry, who is running for re-election, is expected to face a tough battle with Hutchison in the Republican primary.

And:

Shapleigh also asked how she would vote if there was new evidence that could show a death row inmate may be mentally disabled, which would prevent them from being executed.

"I would vote against," execution, Perkins said.

Earlier coverage of the Perkins appointment is Lisa Falkenberg's Houston Chronicle column, "Perry Pandering to the Far Right."

Jose Briseno

Jose Briseno is scheduled to be executed by Texas on Tuesday, April 7.  A clemency petition has been filed on his behalf with the Texas Board of Pardons and Paroles.

Supporters of Mr. Briseno are urging people to learn about his case and sign an online petition calling upon the Board of Pardons and Paroles to recommend clemency to Governor Rick Perry.

Mr. Briseno's attorney, Richard Burr, has prepared this video about Jose Briseno and his case.

In a recent string of cases the Board has failed to consider an inmate's rehabilitation, and Jose Briseno's case involves this and other serious issues.  The Board has a responsibility to examine this case and take the time it needs to make an informed decision.

TCADP has more on this case, here.

Death Penalty Reform

That's the title of an editorial in the Saturday edition of the Dallas Morning News.  LINK

A convicted capital murderer in Texas is sentenced to death in open court, face to face with judge and jury. They typically are the last people with life-or-death authority that the condemned defendant will see before lethal drugs are injected into his arm.

A bill filed by Sen. Rodney Ellis would change that. It would require the Board of Pardons and Paroles to hold a meeting with the condemned prisoner in attendance. The meeting can be in person, by phone or through videoconference.

This bill, SB 166, is a good one. It grants access to a person whose life is at stake and allows for a last-ditch plea that may, someday, avert the rare tragedy of a fatal error.

Today's system has safeguards built in, but it's hard to have too many. Upon request, an inmate is now afforded an interview with a parole board member in response to a clemency application. That member makes a report to the full board. At decision time, however, members may inform the chairman of their votes by phone or by fax. That means the business of death is decided remotely and in relative isolation.

Final judgment by this deliberative state body should occur with the subject of the proceeding and his attorney as witnesses to votes cast by each member. We would make one fundamental change in the bill and require that the meeting be open to the public. The state has the technology to make that manageable.

The board, which makes reprieve recommendations to the governor, is in a position to weigh factors that courts haven't. For example, the execution of Larry Swearingen of Montgomery County was stayed by federal court in January based on information that a key forensic prosecution witness changed her mind and concluded he could not be the killer. State courts didn't consider that new evidence.

Another worthwhile Ellis measure, SJR 7, would allow Texans to vote on changing the state constitution to give the governor more than the one 30-day reprieve he can now grant without a parole board recommendation. We repeat: It's hard to build in too many safeguards when it comes to taking a life in the name of the state.

Willie Pondexter

Attorneys for Willie Pondexter have filed this petition with the U.S. Supreme Court, today.  He is scheduled to be executed tomorrow evening.

Last week, Pondexter's attorneys filed a federal civil rights lawsuit complaining that the Polk County Sheriff's office and TDCJ were interfering with their ability to gather evidence to plead for clemency from the Texas Board of Pardons and Paroles.  The U.S. Fifth Circuit Court of Appeals dismissed the suit without ruling on the questions presented in the suit.

Earlier coverage of the harrasment by Polk County officials is here.

Pondexter's case for clemency is based on rehabilitation and not being a future danger.  Backing that up is one TDCJ guard who has urged that Pondexter's death sentence be commuted to life in prison.  The Board of Pardons and Paroles would have to make such a recommendation and the governor would have to approve the recommendation.

Texas' unique reliance of predictions of future behavior does not allow any judicial remedy for a faulty conclusion reached by trial jurors.  Only the BPP with the governor's agreement can make such a correction under the Texas system.

I discussed this unique Texas criminal justice problem last October in this post.  Here's an excerpt:

Even in Texas the death penalty is supposed to be reserved for the worst of the worst.

One of the unique aspects of Texas criminal law is a reliance on predictions of future behavior in determining whether or not a person is sentenced to death.  In order for any person to receive a death sentence, all 12 jurors must agree that the individual will represent a continuing threat; a future danger.  Some have likened it to a ticking time bomb, bound to explode.

That charge to the jury, “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” is written into the Texas Criminal Code.

Keep in mind that means being a continuing threat in a prison setting, one of the most secure, locked down environments on the planet.  It means being a danger to cause harm not to the general public, but to other inmates, prison employees and guards.

Eric Nenno assaulted and killed a child in 1995.  When he was convicted in Harris County in 1996, all 12 jurors voted that he would be a future danger, and Nenno was sentenced to death.  He faces a scheduled execution tonight in Huntsville.

But what if that prediction was wrong?

And:

Executive clemency in Texas has been criticized by many criminal justice watchers as failing to live up to its historic responsibility as a failsafe.  The facts of Eric Nenno’s case called out for serious review by the Board.  He has proven on a daily basis over the past 160 months that he has not been a continuing threat.  He has demonstrated that he is not the worst of the worst.  But the Board of Pardons and Paroles rejected Nenno's clemency petition, as noted in this earlier post.

The prediction answered in 1996 got it wrong.  It seems that the Texas Board of Pardons and Paroles was not interested in revisiting the question or how to set it right.

This reliance on predictions of future behavior was the subject of Texas Defender Service's, "Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness."  It was published in 2004.

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.

Federal Court Rejects Pondexter Suit

"Court rejects inmate’s request to delay execution," is Allan Turner's report in today's Houston Chronicle.

A federal court Thursday refused to delay Tuesday’s execution of Willie Pondexter Jr., who was sentenced to die for the 1993 murder of an 85-year-old Northeast Texas woman.

Represented by lawyers from the Houston office of the Texas Defender Service, Pondexter, 33, claimed that Texas prison officials and Polk County sheriff’s officers wrongfully interfered with efforts to collect information for a clemency petition.

Polk County is the home of the Allan Polunksy Unit, which includes the state’s death row.

Pondexter was sentenced to die for fatally shooting Martha Lennox after burglarizing her Clarksville home.

The panel of the Court of Appeals for the Fifth Circuit gave no reason for its decision.

“I think the Fifth Circuit realized that Pondexter’s legal position is unassailable, and so they decided to run out the clock — to let him die so that they do not have to address the merits of his allegations,” said Texas Defender Service lawyer David Dow.

Named in the civil rights lawsuit considered by the court were top prison officials, Polunsky Warden Tim Simmons and Polk County Sheriff Kenneth Hammack. Pondexter had sought a stay of execution so that his lawyers could interview prison guards to support the contention that he has “become a wholly different man” on death row.

In sworn affidavits accompanying the lawsuit, Harvard Law School students Ariel Rothstein and Andrew Freedman, working with Houston lawyers, detailed their Jan. 17 encounter with a sheriff’s deputy after they left the home of a prison guard they had tried to interview.

The AP report by Michael Graczyk is, "Inmate set to die next week loses federal lawsuit," via the San Antonio Express-News.

The suit also said Polk County sheriff's deputies last month detained two legal interns working for the inmate and intimidated them as they tried to gather information favorable to Pondexter from corrections officers.

"I think the Fifth Circuit realized that Pondexter's legal position is unassailable, and so they decided to run out the clock - to let him die so that they do not have to address the merits of his allegations," one of Pondexter's lawyers, David Dow, said.

State attorneys had argued the court had no legal jurisdiction to consider the case and that condemned inmates have no constitutional right to clemency. They also noted the law students questioned by deputies were not arrested.

Top executives of the corrections agency, the Polunsky Unit warden and the Polk County sheriff were named as defendants in the suit that was rejected.

Dave Mann has more details in a Texas Observer web-only article, "Condemned Inmate: Prison Officials Won't Let Guards Speak Out."

Pondexter was sentenced to death for taking part in the 1993 killing of 85-year-old Martha Lennox in the northeast Texas town of Clarksville. Pondexter, then 19, and James Lee Henderson broke into Lennox’s home, shot her in the head and made off with $18, according to state records.

Pondexter’s guilt is not in doubt. In their case for clemency, his attorneys have contended that Pondexter has changed in his years in prison from a violent young gang member into a peaceful, responsible adult. Many condemned prisoners have made this argument. What makes Pondexter different is that prison guards on death row are vouching for him.

Pondexter has endured almost half his life on death row. The correctional officers in the Polunsky Unit are the people who perhaps know him best. At least half a dozen of them told Pondexter they didn’t want to see him executed and that they would speak up on his behalf.

Last fall, after Pondexter’s execution date had been set, Dow and his legal team set out to talk with correctional officers who knew Pondexter. Hardly any were willing to talk for fear of retaliation. “Those prison guards that we have reason to believe would give affidavits that Pondexter is not dangerous, that he’s fully rehabilitated, that there’s no reason to execute him--they have been prevented from talking to us and we have been prevented from interviewing them," Dow says.

Lloyd Coker, the only corrections officer who did speak with the legal team, told Kate Black, an attorney with the Texas Defender Service, that “Willie Pondexter has never posed any threat within the prison, even when given the opportunity,” according to an affidavit Black filed with the federal lawsuit. “I have seen some guys on death row who are extremely dangerous, and some of them I believe ought to be executed. Willie Pondexter isn’t one of those people…..he could safely live out his days in a structured environment. In fact, if Willie Pondexter were out here in the free world, I would be willing to give him a job working on my property.”

Although Coker spoke with Pondexter’s attorneys, he told them he was too scared to sign any documents advocating for clemency for fear he would incur retaliation. “If people are not talking, it is probably because they are scared to lose their jobs or scared of being written up,” Coker told Black, according to her affidavit. “And I likely wouldn’t talk to you about another inmate either. But Willie Pondexter is one of the few inmates I’d be willing to speak up for. ... I would really hate to see him go.”

Earlier coverage begins with this post.

Guards’ ‘Code of Silence’ Hinders Clemency Efforts

That's the title of an OpEd in today's Houston Chronicle by former Florida prison warden Ron McAndrew.  He is now a consultant on prison and jail issues.  The OpEd is subtitled, "Officers afraid to speak in favor of sparing inmates."

If Willie Pondexter, Jr., is executed on Tuesday, part of the reason will be that the truth about his rehabilitation and dangerousness (or lack thereof) has been kept under lock and key. When it comes to assessing these factors of a person on death row, we should listen and give weight to the opinions of the prison officers who know him best.

But that doesn’t ordinarily happen because there is code of silence among corrections officers enforced by their supervisors and employers. The average correctional officer fears both the prison hierarchy — it could ruin his career or get him fired to say something out of line — and the corrections officers who keep prisoners and other correctional officers in their place through violence and other terrible means. The average correctional officer lives every day of his career with an absolute fear of speaking up.

I know because I worked in Florida prisons for almost 25 years, starting out as a corrections officer and rising through the ranks to supervise three state prisons, including Florida’s death row. I also know it would be very unlikely to find a Texas prison warden willing to blow the whistle on the unspoken, but enforced, code of silence.

I admire the few rare corrections officers who step forward and give decision-makers critical information, especially about clemency. In Pondexter’s case, one such courageous officer came forward and reported that Pondexter is not a danger to anyone, stays calm even in challenging situations, does everything that is asked of him and “could safely live out his days in a structured environment.” In fact, this correctional officer said, if Pondexter were a free man, he would be willing to give him a job working on his property.

This is the kind of information the Texas Board of Pardons and Paroles, the governor and the courts need to hear, but almost never do.

Significantly, this officer also said: “You would be hard-pressed to find anyone to say something bad about Pondexter.

If people are not talking, it is probably because they are scared to lose their jobs or scared of being written up.” This remark about the code of silence that prohibits corrections officers from speaking the truth, even when a man’s life is at stake, is consistent with all I know from my quarter-century in corrections.

There are likely dozens of other corrections officers who feel the same way and believe Pondexter’s life should be spared. They are not cooperating in Pondexter’s clemency case because they are afraid of being disciplined, losing their jobs, health care and pensions because they did what they thought was right, even on their own time. As a result, Pondexter is being denied the ability to investigate, gather evidence and present his case for clemency.

And:

Texas has the right to execute people convicted of murder. But if it sets up a process to make sure only the worst offenders receive the death penalty, it must let the process work.

It is an irrevocable wrong to send a man to his death without giving a fair hearing to favorable information about his demeanor, rehabilitation and lack of dangerousness to prison employees and other inmates. But that’s exactly what may happen on Tuesday.

Earlier coverage of the case is here.

Eric Nenno and Texas Clemency

Even in Texas the death penalty is supposed to be reserved for the worst of the worst.

One of the unique aspects of Texas criminal law is a reliance on predictions of future behavior in determining whether or not a person is sentenced to death.  In order for any person to receive a death sentence, all 12 jurors must agree that the individual will represent a continuing threat; a future danger.  Some have likened it to a ticking time bomb, bound to explode.

That charge to the jury, “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” is written into the Texas Criminal Code.

Keep in mind that means being a continuing threat in a prison setting, one of the most secure, locked down environments on the planet.  It means being a danger to cause harm not to the general public, but to other inmates, prison employees and guards.

Eric Nenno assaulted and killed a child in 1995.  When he was convicted in Harris County in 1996, all 12 jurors voted that he would be a future danger, and Nenno was sentenced to death.  He faces a scheduled execution tonight in Huntsville.

But what if that prediction was wrong?

During his pre-trial incarceration in the Harris County jail, Nenno was not deemed to be a danger, and was assigned to tasks assisting guards and others. 

In the 160 months that Eric Nenno has been on Texas death row he has not received a single disciplinary infraction.  He has not been a continuing threat to other inmates or guards.  He has expressed deep remorse for the crime he committed and the void that it has left in the family of his victim.  On death row, Eric Nenno has worked to help others and to resolve conflicts.  He has been respectful to other inmates and his guards. 

Eric Nenno has shown by his actions over the past 12 years that he has not been a continuing threat to those around him.  How does our state’s criminal justice system take that fact into account?

The courts have no judicial remedy for a prediction that turned out to be wrong.  Nor does the Texas Department of Criminal Justice have an administrative process to remove an inmate from death row by virtue of his conduct.  Eric Nenno’s only option was executive clemency.

The Texas Board of Pardons and Paroles is the one body with the authority to recommend a commutation of a death sentence to life in prison.  Governor Rick Perry must then approve such a recommendation.

Executive clemency in Texas has been criticized by many criminal justice watchers as failing to live up to its historic responsibility as a failsafe.  The facts of Eric Nenno’s case called out for serious review by the Board.  He has proven on a daily basis over the past 160 months that he has not been a continuing threat.  He has demonstrated that he is not the worst of the worst.  But the Board of Pardons and Paroles rejected Nenno's clemency petition, as noted in this earlier post.

The prediction answered in 1996 got it wrong.  It seems that the Texas Board of Pardons and Paroles was not interested in revisiting the question or how to set it right.

This reliance on predictions of future behavior was the subject of Texas Defender Service's, "Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness."  It was published in 2004.

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.

The Jeff Wood Case

Today's New York Times reports, "Texas Panel Rejects Plea to Halt Execution of Accomplice in 1996 Murder."

Jeffrey Lee Wood is sentenced to die this week for the murder of a store clerk during a robbery, even though he was sitting in a truck outside the convenience store when it happened.

Mr. Wood is the latest person to face the death penalty under a Texas law that makes accomplices subject to the death penalty if a murder occurs during a crime.

His lawyers say Mr. Wood is a gullible man of limited intellect who suffers from delusions. In their view, Mr. Wood was never mentally competent to stand trial in the first place.

Nor, they argue, was Mr. Wood aware that his partner in the robbery, David Reneau, was carrying a gun, according to testimony presented at Mr. Reneau’s trial but never brought up during Mr. Wood’s trial.

These arguments failed to sway the Texas Board of Pardons and Paroles, however. On Tuesday afternoon, the seven-member board unanimously rejected a petition from Mr. Wood’s lawyers for a commutation of his sentence.

That means he will be executed Thursday evening, unless Gov. Rick Perry grants a 30-day reprieve or a judge issues a stay. “The governor hasn’t made a decision,” Mr. Perry’s spokeswoman, Allison Castle, said.

And:

Under the Texas “law of parties,” the question of whether Mr. Wood anticipated the murder is important. People who conspire to commit a felony are all responsible for an ensuing crime, like murder, if it can be shown they should have known it would happen.

The United States Supreme Court has upheld the principle, ruling in 1987 that the Constitution does not forbid the death penalty for a defendant “whose participation in a felony that results in murder is major and whose mental state is one of reckless indifference.”

At least seven people have been executed in the United States since 1985 for being accomplices in crimes during which one of their partners committed murder, according to the Death Penalty Information Center. Three of those were executed in Texas.

David R. Dow, a law professor in Houston who oversees the Texas Defenders Project, which is trying to forestall the execution, said he doubted Mr. Wood was mentally competent to stand trial, much less that he knew in advance the murder would happen. In addition, Mr. Dow said, he did not receive proper legal representation during the sentencing phase.

“This case has in it virtually every feature that makes the death penalty system in Texas so scandalous,” he said.

"Parole board rejects clemency for non-triggerman," is the AP dispatch via the Houston Chronicle.

The Texas Board of Pardons and Paroles on Tuesday rejected a clemency request for condemned inmate Jeffery Wood, moving him a step closer to execution this week.    

The board voted 7-0 to not recommend Gov. Rick Perry commute Wood's death sentence.

Wood is set to die Thursday for the 1996 death of Kriss Keeran, a clerk at a convenience store in Kerrville. Wood's lawyers don't dispute he deserves punishment but argue he doesn't deserve to die for a murder that occurred while he was waiting in a car outside the store.

Daniel Reneau, the gunman, already has been executed.

Wood, whose 35th birthday was Tuesday, was convicted under the Texas law of parties, which makes accomplices as liable as the actual killer in capital murder cases.

"We're just very disappointed," said Scott Sullivan, one of Wood's lawyers.

Wood would be the ninth condemned prisoner put to death this year and the fifth this month in the nation's busiest capital punishment state. At least a dozen other Texas inmates have execution dates in the coming months.

Wood also lost an appeal in the Texas Court of Criminal Appeals on Tuesday. Sullivan had sought permission to hire mental health experts to pursue arguments that Wood is incompetent to be executed. He said the appeals would be taken to the federal courts.

Yesterday afternoon, before the CCA ruling, Texas Defender Service issued a news release, "Governor Perry Urged to Grant Thirty-Day Reprieve for Inmate Convicted under Texas 'Law of Parties' who did not actually Commit Murder."  Here's the beginning:

Attorneys for Jeff Wood are urging Governor Rick Perry to grant a
30-day reprieve from execution while the Texas Court of Criminal Appeals
considers an appeal by Mr. Wood. Late last week, Mr. Wood's lawyers filed a
motion with the Court for counsel and experts to be appointed to evaluate his
mental competency. Earlier today, the Texas Board of Pardons and Parole did
not recommend clemency.

"Despite today's decision by the Parole Board, we are urging Governor Perry to
grant a 30-day reprieve while the Court of Criminal Appeals considers
appointing a mental health expert to evaluate Mr. Wood," said Andrea Keilen,
executive director of Texas Defender Service. "Given his longstanding history
of mental illness, Governor Perry must not allow Mr. Wood's execution to go
forward without allowing the Court to rule on this rudimentary due process
right."

And:

In 1997, Wood was initially found incompetent to stand trial. A
neuropsychologist who evaluated Mr. Wood's competence to stand trial said that
Mr. Wood "ha[d] a delusional system, an inability to grasp the reality
surrounding the issues specific to this case, his role in it, in the crime, as
well as other things that present a direct threat to his own well-being, his
own sense of self."

Mr. Wood suffers today from the same psychological and emotional impairments
for which a jury found him incompetent to stand trial in 1997. He has never
received psychiatric or mental health care for these impairments. The same
deficiencies that prevented Mr. Wood from communicating with his trial lawyer
with a reasonable degree of rational understanding prevent Mr. Wood from
having a rational understanding of his death sentence and impending execution.
Therefore, Mr. Wood is potentially incompetent to be executed.

Earlier coverage is here.  John Gramlich's Stateline briefing on the felony murder rule (also known as the law of parties) is noted in this post.  My August 2007 commentary on clemency in Texas is here.  The 2005 report, The Role of Mercy, on best practices in executive clemency -- and Texas' shortcomings -- is available here.

Tx BPP Rejects Wood Clemency Bid - Updated

The Board of Pardons and Paroles has rejected Jeff Wood's clemency petition.  All seven members of the Board voting against recommending that the governor commute Wood's death sentence.  As I noted earlier, a Texas governor may only commute a death sentence upon a positive recommendation by the Board.

An AP report, via the Fort Worth Star-Telegram, is here.

Wood's execution is scheduled for Thursday evening in Huntsville.

Earlier coverage is here.  John Gramlich's Stateline briefing on the felony murder rule (also known as the law of parties) is noted in this post.  My August 2007 commentary on clemency in Texas is here.  The 2005 report, The Role of Mercy, on best practices in executive clemency -- and Texas' shortcomings -- is available here.

Texas Board of Pardons and Paroles Rejects Medellin Clemency

In the Dallas Morning News, Christy Hoppe reports, "Death-row inmate Medellín doesn't get a reprieve from Texas pardons board."

The Texas Board of Pardons and Paroles unanimously voted Monday against a reprieve for José Medellín, whose scheduled execution today has frayed relations with Mexico and the International Court of Justice.

Mr. Medellín's case has prompted Secretary of State Condoleezza Rice and Attorney General Michael Mukasey to ask Gov. Rick Perry for Texas' help in the case, but thus far the governor's office said he is disinclined to give "additional protection" to the condemned inmate.

"Medellin execution on after pleas fail," is the Houston Chronicle article by Rosanna Ruiz.

On Monday, the Texas Board of Pardons and Paroles denied Medellin's request for a 240-day reprieve and a request to commute his sentence to life in prison.

Donald Francis Donovan, one of Medellin's attorneys, said in a prepared statement he was disappointed with the board's action, saying it went against "the interests of the nation and risks the safety of thousands of Americans traveling and living abroad."

If the sentence is carried out, Medellin would be the first of 51 Mexican nationals on American death rows whose cases were at the center of a 2004 U.N. International Court of Justice order. The U.N. court ordered a review of the cases because the men had not been allowed to speak with their nation's consular officials following their arrests, in violation of international treaty.

AP is distributing Mike Graczyk's, "Lawyers for Mexican say execution violates treaty."

Mexico, which has no death penalty, initially sued the United States in the World Court in 2003. It and other opponents of capital punishment have sought to use the court to fight for foreigners facing execution in the U.S.

At least six other Mexican nationals have been executed in Texas since 1982, when the state resumed carrying out capital punishment.

"Mexican set for US execution in defiance of Intl Court of Justice," is the AFP dispatch from Washington.

The ICJ in 2004 ordered US officials to review the sentences for the Mexicans on death row.

On July 16 this year, the ICJ instructed the US authorities to do everything it could to stay the imminent execution of five Mexicans on death row, including Medellin, granting an urgent request by Mexico.

Since the 2004 ruling, some US states have agreed to review their death row cases at President George W. Bush's request.

But Texas has refused, arguing that its state courts, which decided the Medellin case, are not bound by the ICJ treaty. And their position was supported by a March US Supreme Court ruling.

That left the federal government in Washington with no legal tools to force Texas to put off the execution.

Medellin's lawyers are still hoping the US Supreme Court will issue a stay of execution that would give the US Congress time to pass a new law that can force individual states such as Texas to abide by ICJ decisions.

The US House of Representatives took up such a bill after the ICJ's July 16 ruling.

Earlier coverage is here.

More Commentary on Kenneth Foster's Commutation

Angela Tucker has, "Justice in Texas! At last!" at Huffington Post.

I used to be an active member of the community working to abolish the death penalty. This activism began around junior high school and reached its height after I finished producing and finally doing outreach on a feature length documentary about Former Illinois Governor Ryan's decision to issue blanket clemency, Deadline.

And:

This is just one of many loopholes in our legal systems that continue to keep innocent people incarcerated. Let me not even get into how our country profits off of the prison industrial complex and how many people are heavily invested in keeping warm bodies in prison any way they can. That rant is for another day.

This entry is a celebration and a congrats to everyone who has worked so hard for this victory. Dave Zirin, a sports writer for The Nation. (This is usually a stopping point for people so let me explain. Yes, it seems strange that a lefty mag like The Nation has a sports writer but it is true. Zirin, however, is more concerned with sports' place in the political and sociological arenas.)

Zirin wrote a great entry about Kenneth Foster and the joy he feels is palpable. "I sit here stunned: a goofy smile on my face, a tear on my cheek. This must be what victory feels like. Forgive me if I'm not familiar with its near-narcotic euphoria." His entry also features a letter Kenneth Foster wrote to him. Zirin thought this letter might act as a eulogy of sorts. Let us be happy it was not.

Point Austin: One Small Step

That's the title of Michael King's article on Kenneth Foster's commutation in the current Austin Chronicle, our independent alt-weekly.  LINK

God bless the Texas Board of Pardons and Paroles and Gov. Rick Perry.

That's a sentence I never anticipated writing, nor I suspect most Chronicle readers anticipated reading. But Perry's decision last week, to accept the 6-1 recommendation of the BPP and commute the death sentence of Kenneth Foster to life imprisonment, is a historic step toward greater justice and mercy. Perry's decision was essentially unprecedented – the only previous times he has commuted executions were when he was effectively ordered to do so by court rulings: for example, that minors or mentally retarded inmates could not constitutionally be executed.

The clemency decision seemed even more unexpected in light of Perry's recent response to an earlier appeal for an execution moratorium by the European Union. In the condescending voice of his spokesman, Robert Black, Perry had told the Europeans to go suck a lemon: "While we respect our friends in Europe, welcome their investment in our state, and appreciate their interest in our laws, Texans are doing just fine governing Texas." In other words: "Send us your money, and shut up."

So despite the worldwide outcry against the Foster execution – reportedly the governor's office received 11,000 letters opposing it, 11 in favor – I fully expected Foster's story to end in the same way as every one I'd followed before it. I've been writing about capital punishment in Texas for a decade and had long since concluded that the "clemency" system (presided over by the BPP) was thoroughly broken – indeed, that it doesn't really exist. The board is officially required to consider any extra-judicial, mitigating factors in a capital punishment case. Not only had their almost unblemished record of rejections belied that responsibility, but I had watched a previous group of board members troop into federal court and testify, "We review the files to confirm the condemned has been duly convicted and that he had full access to courts" – a mantra that explicitly violated their mandate but echoed the position of the man who appointed them, then-Gov. George W. Bush. Actual clemency was not just an afterthought – it was no consideration at all.

And:

It's one small step. Maybe it will be a turning point – death sentences slowly have been diminishing nationwide in recent years – but, as Texans, we've executed 402 people (at this writing) since the nationwide resumption of capital punishment in 1982, and several more Huntsville executions are scheduled for this month. Foster has noted that "there are several other people condemned under the 'law of parties' like me" and has asked advocates to continue working.

So may we all. It's only one small step. But for today, God bless Gov. Perry, and God bless Keith Hampton.

TxBPP Recommends Commutation for Kenneth Foster

AP reports:

The Texas Board of Pardons and Paroles voted today to recommend that Gov. Rick Perry spare condemned prisoner Kenneth Foster from execution and commute his sentence to life.

The vote from the seven-member board was 6-1. Foster was facing lethal injection this evening.

Perry does not have to accept the highly unusual recommendation from the board whose members he appoints.

There was no immediate response from the governor's office.

Foster was the getaway driver and not the actual shooter in the slaying of a 25-year-old man in San Antonio 11 years ago.

Governor Perry can approve or reject the Board's recommendation.  Governor Perry's press releases are posted here.

Another Stain on Justice, Texas Style

That's the title of an editorial in today's Austin American Statesman on the Kenneth Foster case.  LINK

Gov. Rick Perry can spare a life, uphold justice and bring a semblance of honor to Texas this week, if only he will seize the opportunity.

Perry has the power to stop the execution of death row inmate Kenneth Foster, scheduled to die Thursday for a crime everyone acknowledges that he did not commit. The state's Board of Pardons and Paroles also can halt the execution.

Foster, 30, is not the sweetheart anti-death penalty activists insist he is. He was a thug, armed robber and drug dealer in San Antonio. But he did not commit the murder that put him on death row.

And:

The inescapable problem with the Law of Parties is that a jury has to go back in time and read the defendant's mind, guess at his intention. The sentence is based on what the jury believed Foster was thinking when the crime occurred. No one's life should hinge on guesswork by jurors.

A federal district judge overturned the death sentence in 2005 after determining that Foster didn't play a major role in the conspiracy to rob LaHood. But the 5th U.S. Circuit Court of Appeals reversed the district court and reinstated the death sentence in 2006. The U.S. Supreme Court refused to hear Foster's appeal.

So now it's up to Perry or the Board of Pardons and Paroles to do the right thing and spare Foster's life by granting him a reprieve. It's the only just thing to do. If the governor or parole board allows this execution, Texas will be further stained by injustice.

The Board of Pardons and Paroles is expected to announce its recommendation to the governor on Kenneth Foster's clemency petition at 1:00 p.m., this afternoon.

Court TV has this report on the case.

Earlier coverage is here.

Alan Berlow's Excellent 2003 Article

In the wake of the Libby Clemency, The Atlantic Monthly website is highlighting Alan Berlow's, "The Texas Clemency Memos," from the July-August 2003 issue.  The first 57 memos were prepared by the current U.S. Attorney General, Alberto Gonzales, at the time, Governor Bush's General Counsel.

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.

Martin Draughon

Mike Ward has a lengthy story in today's Austin American-Statesman about Martin Draughon, back in prison while appealing a parole revocation.  The article is, "Freedom of speech or a question of justice."

Martin Draughon spent almost 20 years waiting to die.           

After a federal judge ordered him freed from Texas' death row, citing irregularities in the evidence that convicted him, and state officials paroled him from prison, the one-time Houston resident pledged never to go back.

He moved to the town of Livingston, just a few miles from death row, and did odd jobs. But rather than lie low, Draughon became a star on a local radio talk show broadcast to his former compatriots on death row, a move that rankled some prison officials. In fact, he was engaged to the station's manager and lived in the 105-year-old house from which the station broadcasts.

So, it came as no surprise to some when officials arrested Draughon for violating the rules of his parole twice within his first five months on the street. Officials say monitoring devices showed that Draughon, now 43, was not where he was supposed to be; Draughon says the devices malfunctioned both times.

While his supporters insist the case smacks of "Cool Hand Luke"-style retribution, parole officials say it is nothing of the sort. If anything, they say, the case highlights how modern technology makes it tougher for parolees to bend the rules.

Earlier coverage is here.

Austin American-Statesman on Parole in Texas

The Statesman's Mike Ward has a major story on problems with parole in Texas subtitled,"Poor enforcement of disclosure law hides 'consultants' who rip off inmates, faimilies.".  LINK

State supervision of this little-known multimillion-dollar industry rests largely on a single requirement — that attorneys hired to help inmates gain parole file regular reports showing whom they are being paid to represent.

What might seem like an insignificant exercise in paper-shuffling is actually much more: It is the only way for parole officials to track what has become a lucrative business rife with opportunities for fraud and influence peddling. It is the only way inmates and their families might know who is legally doing consulting work and to presumably protect themselves from getting ripped off. And it is one small check that might afford the public some assurance that the system is not improperly paroling dangerous convicts.

A sidebar pointed out the Board's history of scandal.  LINK

The Statesman wrapped its coverage with an editorial Tuesday.  LINK

But as Ward showed in Sunday's article, the law is not being enforced. Too many lawyers are filing incomplete reports or no reports at all. When asked why, the parole division said it didn't have any legal power to enforce the law. But now Bryan Collier, parole division director, is taking another look.

The fee affidavits and annual summaries are supposed to give the state a handle on overseeing a lucrative business, one vulnerable to fraud and influence peddling. The secrecy of the parole process helps those who claim they — for a fee — have some access to those behind the closed doors, and families desperate to get a loved one out of prison are sometimes ripe for being ripped off.