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Thursday, August 30, 2007

Texas governor Rick Perry accepts Texas Board of Pardons & Paroles' recommendation to commute death sentence of getaway driver Kenneth Foster

The Associated Press is reporting that the Texas Board of Pardons & Paroles has today, by a six to one vote, recommended to Texas Governor Rick Perry that he spare the life of convicted capital murder defendant Kenneth Foster, about whom I wrote at length earlier this month:

Foster was to die in the state death chamber in Huntsville tonight for being the getaway driver in the 1996 attempted robbery and murder of Michael LaHood in San Antonio.

The vote from the seven-member board was 6-1. Perry doesn't have to accept the highly unusual recommendation from the board, whose members he appoints.

From the Board's website:

The governor has the authority to grant executive clemency upon the written recommendation of a majority of the Board of Pardons and Paroles. Executive clemency includes full pardons, conditional pardons, pardons based on innocence, commutations of sentence, and emergency medical reprieves. In capital cases, the Board considers petitions for commutation of sentence to life in prison and for a reprieve of execution. If the Board recommends clemency in a death penalty case, the governor may grant commutation or reprieve. The governor can also grant a one-time thirty-day reprieve of execution in these cases.

That last sentence isn't what's at issue here. In the typical and ordinary case in which a majority of the Board has not made a clemency recommendation, the only power the Texas governor has is to grant one thirty-day reprieve — requests for which Perry, like most other Texas governors, have almost always refused. But what appears to have happened today is a formal, and statistically very unusual, recommendation by the Board in favor of executive clemency. That opens up a whole range of options to Gov. Perry under Texas Code of Criminal Procedure article 48.01 that generally are otherwise foreclosed to him.  Realistically, however, the most generous degree of executive clemency that Perry might be expected to show would be to commute Foster's death sentence to life imprisonment instead.


The Board's recommendation must be in writing. I don't know, and the news reports don't say, whether that's been issued yet. At a minimum, I would presume that the governor will want to read it before making any final decision on it.

Because recommendations like this from the Board are so rare, however, I will also hazard a guess that Gov. Perry will grant a stay of tonight's scheduled execution. He could still thereafter, upon due consideration of the Board's written recommendation and its grounds, decline to follow the recommendation, in which event the execution would be rescheduled and would likely proceed.

Nevertheless, precisely because of the Board's role in the Texas system, Perry or any other Texas governor is far, far more likely to pay attention to, and perhaps to go along with, a recommendation from the Board than he is to be affected by lobbying from the likes of the European Union, Amnesty International, or Jimmy Carter. So to go a bit further out on a limb in my predictions:

If the Board's recommendation is based on a general squeamishness about the propriety of executing someone who wasn't a triggerman himself, notwithstanding this particular jury's affirmative findings on every element that Texas law requires in order to impose a capital sentence on an accomplice like Foster, then I would expect Perry to refuse the recommendation, probably with a statement to the effect that deciding whether Texas law can ever permit capital punishment based on one's status as a non-triggerman accomplice is a question properly for the legislature and the executive to decide, not the Board.

Likewise, Perry would be highly unlikely to go along with the Board's recommendation if it were based on a legal re-review (like my critique of the Fifth Circuit panel's ostensible deference to the state-court record). He is not going to agree that the Board has any business second-guessing the Texas and federal trial and appellate courts who have refused to block Foster's execution.

But if instead, as I suspect is the case, the Board's recommendation is closely tied to the specific facts of Foster's case, then I believe Perry will likely go along with it (as he did, for example, in a recent non-capital case). The Board, and then the governor upon its recommendation, are entitled to consider a variety of factors that were not before the sentencing jury and judge — including, for example, the fact that neither of the other two accomplices was sentenced to death. The members of the Board are hardly "bleeding hearts" or easy marks, and they've seen and heard hundreds of contrived and exaggerated tales of woe in capital and other cases. Moreover, I'm highly confident that the Board wasn't swayed by the gross distortions of the facts of Foster's case from death penalty opponents like The Nation's Peter Rothberg. So it will be interesting to see what the six members of the Board's majority have written here, and what Gov. Perry then does with their recommendation.


Finally, lest you wonder: I'm not a bit distressed by the Board's decision, although I'm certainly intrigued by it. I believe in the system, and in the individuals who do their best to uphold their respective roles in it. The Board has such a role, and I have no more reason to doubt their competency or integrity than I do the prosecution's, jurors', or judges'. I was distressed, and felt that I had an opportunity to influence, the egregious mis-reporting of the facts about Foster's case. That doesn't mean that I would be disappointed were his sentence commuted; and indeed, at the conclusion of my prior post I expressed my position that I would not have joined in the Fifth Circuit panel opinion affirming his conviction and sentence because of a narrow procedural point that I nevertheless believe ought to have been treated more carefully.


UPDATE (Thu Aug 30 @ 12:30pm): And faster than the speed of blogging (but appropriately quickly, given tonight's scheduled execution): Gov. Perry has indeed already accepted the Board's recommendation and has announced the commutation of Foster's death sentence:

"After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment," Gov. Perry said. "I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine."

The TBPP voted 6-1 to recommend commutation, and the governor signed the commutation papers Thursday morning.

The governor’s action means Foster’s sentence will be commuted to life imprisonment as soon as the Texas Department of Criminal Justice can process this change.

Now that is indeed interesting! But best made the subject of a new post. (I've changed the original title of this post to reflect Perry's action.)

Last point for now: This commutation happened despite the media furor and, in particular, the widespread misreporting of the facts about Foster. Failure to deal candidly with unflattering facts, like rampant regional bigotry (both displayed, for example, in this Huffpo op-ed), saps credibility and otherwise detracts from death penalty opponents' legitimate arguments, and pundits who engage in those tactics do absolutely nothing to help anyone on Texas' or any other state's death row.

Posted by Beldar at 11:41 AM in Law (2007) | Permalink


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(1) DRJ made the following comment | Aug 30, 2007 2:49:34 PM | Permalink

I honestly don't get this, Beldar, so please educate me. I, too, have no problem with the Texas Board's recommendation since I assume it was made for valid reasons and I have no problem with Perry following that recommendation. In fact, I generally expect the Governor to seriously consider and often follow the Board's recommendations.

But I can't understand essentially vacating the jury's verdict without something more than "we don't like joint capital murder trials anymore." I hope the Board's findings will elaborate on what specific thing(s) were done in this trial to call the verdict into question. Did Brown try to shift blame onto Foster? Did counsels' arguments unfairly suggest this? Was the jury unduly swayed without a proper limiting instruction? All those things seem to me to be elements for appeal, although I recognize the executive's right to consider them, too.

Bottom line: Where is Govern Perry's statement that this trial and verdict were unfair, or am I being too hard on him?

(2) Beldar made the following comment | Aug 30, 2007 3:04:03 PM | Permalink

I'm trying to get a copy of the Board's written recommendation. Gov. Perry's comment makes little sense to me without more context. One ground for both Foster's and Brown's appeals were that they were tried with each other; those arguments were rejected by the state and federal trial and appellate courts, and correctly so (based on long-standing and unremarkable law). So I'm at a bit of a loss so far in trying to guess what Gov. Perry's reference meant.

I do think they need to rewrite section 7.02 to make it Enmund/Tison compliant for capital cases. But I doubt that's what Gov. Perry meant either.

(3) DRJ made the following comment | Aug 30, 2007 4:36:09 PM | Permalink

Unless the Governor clarifies his decision, think of how many cases this could affect - past, present and future. Those who have been convicted in joint trials will almost surely complain, and smart prosecutors need to think twice before trying current and future defendants together in capital and non-capital cases.

(4) DRJ made the following comment | Aug 31, 2007 5:19:31 PM | Permalink

As you know, the Texas Board of Pardons & Paroles website states that, in capital cases, "the Board considers petitions for commutation of sentence to life in prison and for a reprieve of execution. If the Board recommends clemency in a death penalty case, the governor may grant commutation or reprieve. The governor can also grant a one-time thirty-day reprieve of execution in these cases."

The commutation of sentence provision does not specifically mention capital cases but it seems to address the conditions that must be present to allow a commutation of any sentence: "Commutation of sentence results in a reduction of the sentence to a lesser time period. A commutation can be granted for time served. Commutations of sentence will be granted only upon the written recommendation of a majority of the applicant's trial officials in the county of conviction, stating that the penalty now appears to be excessive, recommending a definite term, based on new information not before the judge or jury at trial, or a statutory change in the penalty."

Do you think that happened in this case - that the local officials recommended commutation? I've only seen one of the trial prosecutors quoted but he was critical of Governor Perry's decision.

(5) sam made the following comment | Sep 1, 2007 1:20:18 PM | Permalink

I hope you follow up on this, Beldar. As you may know, the appellate courts rejected the claim that failure to sever the trial was error. Not sure why we need an entirely different rule for capital cases when it comes to severance.

(6) Beldar made the following comment | Sep 1, 2007 1:41:22 PM | Permalink

I will continue to follow up next week. So far, I've made two long distance calls and sent a pair of emails to the Texas Criminal Justice Department (which, I'm told, handles executive clemency inquiries for the Board). No response so far, but the approaching holiday might explain that.

(7) DRJ made the following comment | Sep 1, 2007 2:58:13 PM | Permalink

I'm interested, too. Let me know if I can help.

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