Board's ruling not seen as shift in favor of killers

The Texas Board of Pardons and Paroles' role in saving a San Antonio killer from execution Thursday may have delighted death penalty opponents, but legal experts said the panel's recommendation of mercy does not portend a policy of sympathy for capital killers.

The board's 6-1 recommendation that Kenneth Foster's death sentence be commuted to life in prison was only the fifth time in more than a dozen years that the board has acted in favor of a killer.

Thursday's action also marked the fourth time in that period in which a governor accepted the board's recommendation of a life sentence.

Gov. Rick Perry made the move about seven hours before Foster's scheduled execution and explained that his concern centered on the fact that Foster, who drove the getaway car, and the gunman were tried together.

While Texas' position as the nation's busiest death penalty state remains secure, Thursdays action may lead to greater discretion in the filing of capital cases against those other than the actual killers.

"With the death penalty under tighter scrutiny if someone isn't the actual shooter, it's going to be harder to get the death sentence," said Richard Dieter, executive director of the non-partisan Death Penalty Information Center.

Perry's commutation of Foster's death sentence "was very unexpected," said Rob Owen, a clinical professor at the University of Texas School of Law.

"This decision by the governor today, which I applaud, can be justified in that Mr. Foster did not anticipate that a killing would take place," Owen said. "That will serve to distinguish this case from any other case."

But it would be "over interpreting the case" to conclude that the parole board has become more receptive to killer's appeals, said David Dow, a University of Houston law professor also with the Texas Innocence Network.

"I think Gov. Perry's statement illuminates the highly unusual nature of the board's action in this case," Dow said, alluding to the governor's expressed concern about the pair being tried together.
The lesson to be drawn from the board's action, Dow said, is that appellate attorneys should submit clemency petitions to the pardons board more often. He said they are not filed in 75 percent of capital cases in Texas because "attorneys don't get paid for doing it."

Source: Houston Chronicle