Texas: 'Will this apply to everybody?': Legal community reacts to rare death row commutation

One thing is clear after last week's eleventh-hour death row commutation: No one agrees what it means.

For the first time in a decade, a Texas governor - following a rare unanimous recommendation from the notoriously unforgiving Board of Pardon and Paroles – granted clemency to a condemned prisoner, sparing Thomas "Bart" Whitaker just minutes before his scheduled Feb. 22 execution and giving him instead a life sentence.

There's very little consensus in legal circles as to whether Gov. Greg Abbott's moment of mercy signifies another shift in capital punishment trends, shows a political calculation on the governor's part, opens the door to accusations of racial bias – or whether it simply means nothing at all.

"It's just too soon to tell if there is any significance to this beyond the Whitaker case itself," said Shannon Edmonds, staff attorney at the Texas County and District Attorneys Association.

The Sugar Land man at the center of the debate was convicted of masterminding a 2003 murder-for-hire plot apparently aimed at scoring a hefty $1 million inheritance. Though he wasn't the gunman, Whitaker was sentenced to death after his mother and younger brother were slain in the faked burglary.

But his father, Kent Whitaker, survived and went on to argue passionately against his son's death sentence, gaining national attention as he put his devout Christianity on display in an Old Testament-laced clemency plea that ultimately won the seven-member board's favor.

"This is confirmation that victims' rights matter in Texas," Whitaker's attorney James Rytting said after his client was spared. Though defense counsel disputed it, prosecutors said the slain mother's family did not support clemency in the end.

For Jeff Strange, a former Fort Bend prosecutor who worked the case more than a decade ago, the commutation seemed like a watershed moment, an act almost inexplicable given the heinous nature of the crime and Whitaker's other prior death plots.

"At some point, years from now, we're going to look back at this and it'll just be the tipping point, the beginning of the end," he said. "The governor has basically done something that he's never really going to be able to give a good explanation for and I think he's set himself up to be second guessed every time this comes up over and over."

But Robert Dunham, executive director of the Death Penalty Information Center, cautioned against labeling the commutation as any sort of turning point. Instead, he said, change is already underway.

"Texas is - like the rest of the country - changing when it comes to death penalty, and death penalty proponents are in some senses seeing this thing slipping away and that has produced some extreme and hyperbolic responses," he said. "Decline has now reached the point where proponents of capital punishment in some formerly very pro-death penalty states are concerned that the death penalty is going away - and they may be right."

Brian Stolarz, the attorney who secured the release of wrongly convicted former death row prisoner Alfred Dewayne Brown, concurred with Dunham in part.

"This is a one-off case with unique facts and unique racial issues," he said. "I don't think anyone should get false hopes that this will set a trend."

For some, the case revived troubling questions of racial bias in the capital-punishment process.

"What I'm really looking forward to finding out is whether the same consideration that is given to a white person raised in privilege and college educated who has killed or tried to kill his entire family is given to persons of color who have killed people under much less heinous circumstances," said Randy Schaffer, a Houston-based attorney defending a death-row inmate who recently lost a federal appeal. "Is this going to be a policy that only applies to the white and privileged who make a religious plea or will this apply to everybody?"

Yet a number of lawyers and law experts discounted the role of race. At least one said the possibility hadn't occurred to him, and others questioned the assertion.

"You can speculate as to what the outcome would have been if he had been black," Dunham said. "But I don't think that there's evidence one way or the other to make any judgement on that."

Defense attorney Patrick McCann forcefully disagreed.

"Anyone who looks at this and thinks race doesn't play a role is simply being willfully blind," he said. "That takes away nothing from the work of the lawyers, which has been tremendous and frankly heroic but it should illustrate to everybody that this is a system that has no rhyme and no reason to it."

Though many of the dozen or so lawyers and legal experts the Chronicle interviewed about the case either weren't willing to speak on the record about its political significance or doubted that there was any, some described the governor as "calculating" and speculated privately about a possible political motive.

Rick Dunham, a long-time Texas political reporter and analyst, said the commutation could score the governor some "brownie points" and wasn't likely to cause any "political grief," in part because it came after a unanimous board recommendation.

"If it means anything (politically) it's that he's not concerned about his right flank," he added. "He's not concerned about a lack of enthusiasm among conservatives."

Strange predicted the action would lay out a political map for eliminating capital punishment in Texas.

"People are going to see that the governor is subject to public pressure," he said. "And the people who have money and are against the death penalty can say, 'This is a hill we're going to die on' and put on a big publicity campaign."

Given the nature of executive clemency - issued at the governor's discretion - a number of lawyers on both sides predicted it wouldn't have any impact legally.

But Keith Hampton, who also represented Whitaker, said the swirl of last-minute questions leading up to the commutation could spark changes in how the Board of Pardons and Paroles conducts its voting.

"They don't meet as a body and I think that was not lost on some lawmakers," he said, pointing out that an in-person meeting and vote may have resolved some questions sooner.

Some attorneys speculated it could just make an already-rare commutation less likely moving ahead.

"This is the horrible lie of clemency," McCann said. "Because the governor has granted it this one time, he now gets a pass on every mentally infirm black or poor Hispanic to kill them because he did this one magnanimous act. That's the lie of clemency in Texas."

Source: chron.com, Keri Blakinger, March 3, 2018

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde