Texas' too-secretive pardons and paroles process

Houston criminal defense attorney Patrick McCann made a persuasive argument for opening up Texas' too-secretive pardons and paroles process in Sunday's Outlook section ("Texans deserve public, open clemency process," Outlook, Nov. 29, Page B8).

We agree with McCann's contention that this important part of the criminal justice process should be far more transparent; regrettably, it could scarcely be more closed. That ought to be a matter of concern, not just for the accused and convicted, but for all who come in contact with the system.

McCann's client, Robert Lee Thompson, was executed recently after Gov. Rick Perry declined to accept a recommendation by the state Board of Pardons and Paroles that Thompson's sentence be commuted to life in prison.

The board vote to change Thompson's sentence was made after successful entreaties by McCann and his partner, Rodney Brown. Thompson had been given a capital sentence despite the fact that he did not fire the weapon in the murder of a store clerk; McCann and Brown had persuaded the board to change the death sentence.

As McCann noted in his Outlook piece, the pardons and paroles board's decision was made entirely in secret behind closed doors and without public input. No witnesses. No depositions. No affidavits. And no explanations as to why Perry ultimately declined to approve the recommendations of the board which, ironically, is made up of his own appointees.

This system, shrouded in mystery, could not be more certain to feed public suspicion if it had been specifically designed to do so. And Perry's silence about his decision to allow Thompson's execution to proceed has only heightened suspicions that the governor's decision had less to do with the facts in Thompson's case than with appealing to staunchly conservative voters in the March 2010 Republican gubernatorial primary, in which Perry faces a strong challenge from Sen. Kay Bailey Hutchison.

The secrecy is made that much more troubling by the lengthening history of false convictions based on faulty evidence that has bedeviled Texas criminal justice these past few years.

As McCann notes, scarcely a week passes without news that someone else has been exonerated by the Innocence Project. A credible, open process to appeal convictions is not a luxury for this state; it is a necessity. A more open review process in capital cases, and greater willingness than Perry has shown to allow for review of important details in a given case, are obviously paramount in death penalty cases. Once the convicted is strapped onto the gurney in Huntsville, there is no second chance to correct mistakes.

Better to have a thorough review than regrets.

The secretive system is on display once more this week, leading up to the scheduled Thursday execution of Bobby Wayne Woods for the 1998 kidnapping, rape and murder of 11-year-old Sarah Patterson. Attorneys for Woods have asked the Board of Pardons and Paroles for a stay of execution or clemency.

A 2002 U.S. Supreme Court ruling prohibits the execution of persons who are mentally retarded. Over the years, testing of Woods has shown that he has an IQ hovering around 70, the cutoff for mental retardation. His attorneys also contend Woods did not receive adequate representation at the appeals court level.

The crime committed against Sarah Patterson was heinous; of that there is no dispute. But the circumstances, including Woods' borderline test scores, questionable legal representation and the suicide of a cousin who he claims committed the crime, argue for careful review before a capital sentence is carried out.

Indeed, cases such as this one make perhaps the most compelling argumentfor opening up the whole process. Texas can and should do better.

Source: Houston Chronicle, December 2, 2009