No Mercy


For opponents of the Texas death penalty, victory occurs in very small measures. The latest tiny trophies are a couple of brief, handwritten notes on the bottom of two executive clemency forms used by the Board of Pardons and Paroles, each recommending commutation of capital punishment in the matter of one Troy Dale Farris. In the space called “Member comments,” board member Thomas Moss of Amarillo wrote, “My vote is based upon the veracity of the witnesses & circumstantial evidence that was not linked to Mr. Farris.” Beneath her recommendation of clemency, member Mary Leal of Houston wrote, “It is my belief that full due process has not been afforded in this case.”

The member comments were undoubtedly of little comfort to Farris, convicted in 1986 of the 1984 capital murder of Tarrant County Deputy Sheriff Clark Rosenbalm. Despite very contradictory evidence, persistent official misconduct, apparently suborned witnesses, numerous additional legal irregularities, and compelling evidence of subsequent rehabilitation — all matters only dimly suggested in the terse written comments of Thomas Moss and Mary Leal — of the eighteen Board members, only five voted for commutation or reprieve. On January 13, Farris was executed.

But the fact those comments exist at all is the first positive fruit of two recent — and unsuccessful — lawsuits against the Board of Pardons and Paroles, filed in both federal and state courts on behalf of death row inmates. In federal district court, the inmates alleged that the Board’s clemency procedure does not provide “minimal due process” under the U.S. Constitution (in the terms provided by a recent U.S. Supreme Court decision in an Ohio clemency case). In state district court, the plaintiffs claimed that because the Board holds no public meetings and states no reasons for its actions regarding clemency, the process violates both the state Constitution and the Open Meetings Act. Both the federal and, more surprisingly, the state court ruled in favor of the Board — the Texas clemency process, such as it is, was held to be minimally constitutional and legal.

But the testimony before both courts, and the opinions of federal Judge Sam Sparks and state Judge Scott McCown, opened a window on a state government process that has been virtually (and intentionally) closed for decades. For the first time, Board members were required to describe, explain, and to a degree justify their procedures in the plain light of day. Victor Rodríguez, chairman of the Board and a hearing witness, said he was happy with both judgments. “We’re glad that the decisions came down the way they did,” Rodríguez said. “We have felt all along that we have been meeting the minimum requisite of law in our process.” Attorney Sandra Babcock, who represented the inmates in federal court, was disappointed in Sparks’ final judgment (issued December 28), but described his opinion as “historic … a strong condemnation of the clemency system in Texas.” “To my knowledge,” Babcock added, “it’s the first time the clemency process has been exposed in a public forum. And it’s the first time that a federal judge has commented on the minimal and patently unmerciful nature of the clemency process in Texas.” While ruling in favor of the Board, Sparks had noted bluntly, “It is abundantly clear the Texas clemency procedure is extremely poor and certainly minimal…. Administratively, the goal is more to protect the secrecy and autonomy of the system rather than carrying out an efficient, legally sound system.”

McCown’s decision (issued January 8) was more legalistic in argument, relying on a strained reading of legislative history to allow the Board to continue its peculiarly constricted clemency procedures: no meetings or even discussions among members, individual voting by fax, no statement of reasons for its decisions. The plaintiffs appeared to have a very strong case that the system violates both the state constitution (which requires public meetings of state boards) and the open meetings act — but the judge apparently did not want to set another charge to this particular political dynamite, and deferred any reform to the Legislature.

But McCown was clearly uncomfortable with the Board’s structural evasion of the commonsense and commonplace notion that a government body should act together, publicly, when it does the public business — especially such serious business as capital punishment. “What is troubling to the court,” wrote McCown emphatically, “is that the Board of Pardons and Paroles never meets to consider any petition for clemency, but merely polls its members. Every other state board and commission must meet to take any action, however insignificant, yet the Board of Pardons and Paroles decides a plea for mercy from death without ever meeting.”

Both judges nevertheless convinced themselves that the Board has the law on its side, effectively punting to the Lege. Prior to the rulings, Representative Elliott Naishtat had already filed two bills designed to reform the clemency process, and he was disappointed by the judgments (which may yet be appealed). “The Texas clemency process may technically be legal,” Naishtat said, “but it’s not good government.” His bills would require the Board to hold open clemency hearings, use specific standards for clemency (the bill lists a dozen possibilities, from questions of guilt to simple mercy), and state the reasons for its decisions. (Naishtat has company for death-penalty related legislation, of widely varying effects. See “Legislating Death,” page 10.) Naishtat remains convinced that the current procedure is unconstitutional and unfair, and criticized Governor Bush for arguing that public hearings would only give death-penalty opponents an occasion to “rant and rail.” “I would hope that the Governor would have a quick change of heart on this issue,” said Naishtat. “I think that he’s wrong in saying that the clemency process does not have to be changed. State judges, federal judges, even the attorney general of Texas have expressed their concern about the current process, and indicated that changes are long overdue.”

In their pre-Christmas testimony in federal court, it was apparent that most of the Board members, like the Governor who appointed them, believe the process works just fine. From Victor Rodríguez on down, they staunchly defended the seriousness with which they take their oaths and their duties, and insisted that despite their admittedly staggering workload, they thoroughly and completely review each and every petition for clemency and all the supporting documentation, pro and con. The headline executions — thirty-seven in 1997, twenty in 1998 (about half of those scheduled generate petitions for clemency) — represent only a tiny fraction of the Board’s numerical responsibilities; last year it made approximately 59,000 decisions on parole, and in three-member panels held 29,000 parole revocation “hearings.” (It must help move matters along that the only available answer is “No.”) Since most work at regional offices outside Austin, in court a few seemed mildly surprised at the sheer bulk of clemency-related correspondence that never reaches them, because the Board’s Austin staff decides it is not relevant or not important — as many as four thousand letters, at least some evidentiary, in the case of Stanley Faulder, the Canadian inmate who recently received a stay from the U.S. Supreme Court. Board members believe that they receive sufficient material to make their private decisions, and expressed no need to conduct independent verification or investigation of any of that material. As Victor Rodríguez put it, the burden is on the inmate petitioner: “The task is before them. The task is theirs to convince the majority of members that the Governor of the State of Texas should consider an alternative punishment.”

Clemency, by definition, tradition, and law, is an independent act of mercy, or as McCown put it in his state opinion, “an act of grace or mercy by the body politic acting by and through the executive department of its government.” It is only indirectly subject to the legal process, and is in theory a final opportunity for the community to consider whether some extra-judicial reason — possible legal error, exemplary rehabilitation, special human circumstances — might call out for mercy. But as the day wore on in Judge Sparks’ court, it became apparent that few if any of the Board members seemed even to conceive of a notion of clemency review that was other than a simple last-minute check-off of prior legal proceedings. Although none would venture specific criteria or information that might conceivably persuade them to recommend commutation, in detail they described their petition review as a final, quasi-legal judgment of the case history. In testimony that was repeated several times with minor variations, Cynthia Tauss (formerly chair of the Galveston County Republican Party) said it was her practice to confirm that the petitioner had been duly convicted of a capital crime, and that he had indeed received “due process” by access to the courts (i.e., initial trial and subsequent appeals). Yes to both questions — no clemency. Paul Prejean of Beaumont, a former parole supervisor, said much the same, as did Sandi Walker, once a Brazos County commissioner. Since by definition every single clemency case that reaches the Board concerns a convicted capital defendant who has exhausted his appeals, it appears unlikely, to say the least, that Tauss or her colleagues will find many occasions for mercy.

Also puzzling is the notion that the Board members, untrained in criminal law and by appointment explicitly outside the judicial system, deem their expertise sufficient to interpret the complex legal history of capital cases for what they call “due process” — i.e., the guy had a whole bunch of trials, and enough is enough. One could understand the frustration of the inmates’ lawyers, who questioned the Board witnesses at least partially in hopes of finding some defensible grounds for their decisions — if nothing else, as a guide for future clemency petitions. Kurt Sauer, representing inmate Danny Lee Barber in the federal suit, said he was struck by the members’ expressed preoccupation with guilt or innocence, coupled with their reluctance to try to resolve conflicting evidence in the petitions. “The thing that amazes me, is they say ‘guilt or innocence,’ or whether there’s ‘due process’ — but they don’t do any investigation to see if there is a problem…. They wouldn’t know due process if it hit them in the face.” Attorney Maurie Levin, who has submitted several unsuccessful petitions for clemency, was stunned by the testimony. “I was shocked with the clarity with which the hollowness of the process was exposed. Thinking back over my clients for whom I’ve applied for clemency, I could barely keep myself from crying. It’s so horrifying.”

In his testimony, Board Chairman Victor Rodríguez (formerly the Brownsville chief of police) provided such a circular explanation of the Board’s decision-making process — variations on “the reason we recommended against clemency is that a majority of the Board members recommended against clemency” — that Sparks, in a sly allusion to the Clinton impeachment trial, warned him not to repeat it. “That answer, to me, is like the answer what does ‘is’ mean, or what does ‘alone’ mean?” Sparks said. When Rodríguez continued to argue with the plaintiffs’ lawyers, the judge warned him to “save the speeches for the television cameras” unless he was eager for a fine. In his judgment, Sparks specifically criticized Rodríguez’ testimony, questioning his credibility and his insistence that the Board members have time to thoroughly review clemency petitions.

On the stand and in a subsequent interview, Rodríguez made it clear that he considers the lawsuits just another devious tactic on the part of capital punishment abolitionists, who will not rest until they deprive the state of its authority to kill. “I don’t have any personal problem with any of the things that have been challenged in court,” he told the Observer. “If they want reasons I’ll give them all the reasons in the world. The key I’ve got to guard against, though, is the reasons why they want reasons. They want reasons so that if one of us makes a mistake, they can say, ‘Wait minute, they considered a conviction in that guy’s record that maybe they shouldn’t have. Was it truly a conviction?’ … All of this is designed to — they want a thread to hang on to and argue more, litigate more, these cases, which are already the most litigated cases in our system.” But in his judgment Sparks (who recommended, but did not require, public hearings and published reasons) specifically dismissed Rodríguez’ fear of litigation, saying, “If that fear was not nonsensical in the past, it is certainly nonsensical after Woodard [the Supreme Court decision which requires minimal due process]…. Without even a minimal institutionalized procedure to protect against arbitrary decision-making, every clemency denial will be subject to judicial review….” If not Rodríguez, perhaps at least the Board’s lawyers were listening to the judge — it may well have been that passage that produced the new clemency forms, with their space for “Member comments.”

But despite the courts’ misgivings, they left intact the secretive clemency procedure, which serves primarily to protect the Board (and the Governor who appoints it and then pretends to be helpless before it) from having to defend or justify its decisions to the public. The outcome is a uniquely extreme variation of the sort of “public input” offered by so many state agencies: the illusion of a public process in the designed absence of a real one. Although Rodríguez describes the Board as unfairly besieged by public protest and legal maneuvers, none of it has prevented the members from relentlessly and mercilessly denying clemency to all but one of seventy-six straight petitions. (The single exception was that of Henry Lee Lucas, because two attorneys general submitted evidence that Lucas simply could not have committed the crime for which he was convicted. To the court’s befuddlement, Rodríguez attempted to “clarify” that in the Lucas case, innocence was not an issue: “I voted for recommending [commutation], and I believe ten or fifteen or so others as well, because there was question about the matter, a question that was raised forward by a legitimate state agency. But it was not a petition for commutation based on innocence. And just to clarify that.”) As Sparks noted wryly concerning the members’ testimony that their recommendations are not arbitrary: “It is clear to the Court that members do not flip a coin to determine whether to recommend clemency…. It is elemental a flip of the coin would be more merciful than these votes.”

There are those who argue that a more open clemency procedure would simply mean more process and less clemency — Paul Prejean testified as much, saying that while he didn’t have any irrevocable objections to holding hearings and stating reasons, that wouldn’t necessarily be better for the petitioners. Maurie Levin’s response was simple and pointed. “No one ever gets clemency — it couldn’t be any worse.… So it’s impossible for me to see a way that hearings or meetings could hurt inmates. Not only do I believe that they’re required by the law — but I think that the process needs to be opened to the public, because people need to know what’s going on, and [members of the Board] need to be accountable in a way that I just do not believe they are.”

Legislating Death

Capital punishment remains a hot-button issue for the 76th Lege. By late January, twenty death-penalty related bills were already filed, with more likely. The proposed bills listed here either attempt to (1
expand the death penalty; (2) restrict the death penalty; or (3) change the capital punishment process. A few attempt to expand the death penalty for otherwise progressive purposes – House Bills 663 and 684, for example, are intended to strengthen protections for victims of domestic abuse, but do so by expanding the definition of capital crimes.

Expanding Capital Punishment

H.B. 41 (Pitts, R-Waxahachie): Pitts’ high-profile reaction to last year’s schoolhouse murders. The bill would lower the minimum age of defendants eligible for the death penalty to sixteen.

H.B. 388 (Tillery, D-Dallas): Would make killing any individual at an educational facility, at a school-sponsored event, or on a school-owned vehicle, a crime eligible for capital punishment.

H.B. 663 (Hilderbran, R-Kerrville), H.B. 684 (Solomons, R-Carrollton): Would make capital any murder of an individual under court protection (e.g., a restraining order). Hilderbran’s office cites domestic violence as its impetus, but the bill would also cover witnesses turning state’s evidence and any other individuals under court protection.

H.B. 796 (Allen, R-Grand Prairie): Would make capital any murder by a defendant on parole for an earlier violent crime, or an earlier crime involving a deadly weapon.

S.B. 49 (West, D-Dallas): Would extend death penalty to murders motivated by bias or hate (e.g., the James Byrd murder).

Restricting Capital Punishment

H.B. 77 (Gallego, D-Alpine), H.B. 135 (McClendon, D-San Antonio), H.B. 151 (Naishtat, D-Austin), H.B. 172 (Garcia, D-Dallas), H.B. 425 (Tillery, D-Dallas), S.B. 38 (Lucio, D-Brownsville; et al.): Would mandate life-without-parole sentences for certain murders. Tillery’s bill addresses punishments for capital and non-capital crimes, mandating that defendants sentenced to life for murder, aggravated sexual assault, and sexual assault of children are not eligible for parole.

H.B. 150 (Naishtat, D-Austin), H.B. 761 (Dutton, D-Houston), S.B. 39 (Lucio, D-Brownsville): Would clarify life sentences for murder: juries would be told that defendants sentenced to life in prison would not be eligible even for a parole hearing for forty full calendar years.

H.B. 245 (Gallego, D-Alpine): Would establish guidelines for mental competency of death-row inmates (distinct from the insanity pleas of criminal defendants), and create a life-sentence procedure for mentally incompetent inmates.

Related Legislation

H.B. 212 (Hochberg, D-Houston): Would eliminate parole as a sentencing option for murder, and ensure that all murders lead to prison time or capital punishment.

H.B. 397 & 398 (Naishtat, D-Austin): Would require public hearings in capital clemency cases, and specify twelve clemency standards.

H.B. 657 (Keel, R-Austin): Would require the state to pay the costs of travel and accommodations for victims’ family members who wish to witness executions.

— Jeff Mandell