Perry the Executioner

By midmorning on Aug. 30, 2007, Austin defense attorney Keith Hampton still had not heard a word from the Board of Pardons and Paroles. Time was of the essence; unless the BPP recommended a commutation and Gov. Rick Perry then accepted it, Hampton's client Kenneth Foster would be dead by dinnertime. Hampton was agitated. He grabbed his suit jacket and headed out, walking from his office toward the Capitol complex. He was going to the BPP office to do ... something.

Just days before, he'd made the same trek with Foster's father and grandfather for a meeting with BPP Chair Rissie Owens. They were there to plead Foster's case: He had been just 19 when a passenger in a car Foster was driving fatally shot Michael LaHood, son of a prominent San Antonio family. Although Foster did not pull the trigger and had no idea that his companion, Maurecio Brown, would shoot anyone, the state argued at trial that Foster should be put to death, pursuant to the state's law of parties. That statute posits that if a person should have anticipated that a crime would be committed, that person bears the same responsibility for the crime as the doer. As they talked, Hampton watched Owens "for a signal" as to which way the board might eventually rule. "Rissie was a good poker player, and she has to be," he said; Hampton detected no clues.

But Foster was special: He had killed no one. It wasn't that he had been fingered for a killing he didn't commit (like so many other claims of innocence to come from the row, some more disturbing – or more likely – than others); it was that Foster quite simply was not responsible for LaHood's murder. It was a point that earned the case attention from around the world. The mayor of Rome lit the Colosseum in support of Foster's case; Desmond Tutu and Nelson Mandela sent letters of support. It was a unique set of circumstances, and Hampton was hoping the BPP would see that Foster was worthy of mercy. "This is not a dress rehearsal; this is a one-shot deal," Hampton recalled thinking on the morning he pleaded Foster's case before Owens – and he knew, should he win a commutation, "it would be really unprecedented" in the modern era of Texas' death penalty. If the BPP denied the request, then Perry would be powerless to stop the execution; under Texas law, absent a recommendation from the BPP, the governor has the power only to issue one 30-day stay of execution. Even if the BPP issued a favorable recommendation to the governor, that wouldn't guarantee Perry would accept it; if history were any indication, it was likely that he would not.

On the day of Foster's scheduled execution, with no word from the BPP, Hampton was frustrated. As he reached the edge of the Capitol grounds, his cell phone rang. "The phone rings, and a reporter says, 'What's happening now?'" It took Hampton a minute to figure out that the reporter had somehow already been notified – before he had – that the BPP had voted, 6-1, to recommend that Foster be given a life sentence. "I turned and went directly ... toward the Governor's Office," Hampton recalled recently. At the elevators he ran into Mary Anne Wiley, Perry's deputy general counsel. "'He got the commutation,' I said; she said, 'I know, I know,'" Hampton recalled. "I said, 'Well, I need to talk to him.' She said, 'That's not possible; it's under advisement.'" Hampton persisted; he wanted a face-to-face with Perry, he told Wiley. "She said, very calmly, 'He's on a plane,'" headed to Dallas. Wiley had not been given a commutation order or Perry hadn't yet signed one, Hampton surmised.

Hampton left the Capitol and began walking back to his office; halfway across Lavaca Street, his phone rang again. It was Wiley. "'Keith, he signed it,' she said." Hampton turned his path toward the group of Foster supporters gathered across the street from the Governor's Mansion to deliver the news. They were elated; Hampton was worn out. He walked back to his office. He needed to get in touch with Foster. He called the prison and was told that his client had been given the news. "When he heard the news, he jumped for joy; he clapped his hands and said, 'I knew it!'" Hampton says he was told. He laughs wryly at the memory: "Yeah, commutations happen all the time."

In fact, commutations are exceedingly rare in Texas – virtually nonexistent. In Rick Perry's 11-year tenure, Foster's was the sole commutation based on a recommendation of the BPP – i.e., made without some court action (such as the U.S. Supreme Court's 2005 ruling that banned the execution of juvenile offenders). By the same token, independent commutation recommendations from the board have also been few and far between: Since 2001, the BPP has made three recommendations that a death sentence be commuted to life. In two of those cases, Perry rejected the recommendation and allowed the offender to be executed. In fact, Perry stands in the annals of history as the governor who has presided over the most executions during the modern era of the death penalty. Since 1976, when the death penalty was reinstated, Texas has executed 474 inmates; Perry has presided over 235 of those, far outpacing the second most killing governor, George W. Bush. "Texas still by far leads ... in executions with four times as many as any other state [in the U.S.]," says Richard Dieter, executive director of the D.C.-based Death Penalty Information Center. As executions nationally have declined over the last decade, Texas' death machine has not slowed, even as the number of new death sentences imposed by Texas juries (and sought by Texas prosecutors) has decreased. "The decline is a national phenomenon," says Dieter, "but Texas still leads the way" in executions.

As concerns about the death penalty have increased nationally – with 16 states now banning capital punishment and several more (Maryland, Montana, Colorado) likely to do so soon, says Dieter – Perry has not hinted that he has any concerns either about flaws within the machinery of justice or that tinkering with life and death might be a risky business. (He reiterated that conviction last week in a GOP presidential primary debate when the mention of his record of executions elicited cheers from the partisan crowd.) In fact, he's said the opposite. When Anthony Graves was freed last year after 18 years behind bars – including 12 on death row – for a crime that essentially no one, including Perry, now believes he committed, the governor said Graves' exoneration was an example of how well the Texas system works. "I think we have a justice system that is working, and [Graves is] a good example of .... You continue to find errors that were made and clear them up," Perry told reporters. "That's the good news for us, is that we are a place that continues to allow that to occur." With a backdrop of questions and concerns about capital punishment rising across the country, Perry's emergence as a tough-on-crime candidate for president raises its own serious question for voters: What does Perry's record in dealing with death say about the governor's approach to and feelings about capital punishment?

Out of the Norm

Keith Hampton

Should Perry wish to commute a death sentence, under state law he must wait for the BPP to recommend he do so before he can act accordingly. In that sense, says Jordan Steiker, a professor at the University of Texas' School of Law and co-director of its Capital Punishment Clinic, a Texas governor's hand is not as strong in death cases as some might suppose. "The sort of large picture ... is that the governor isn't all that powerful," he says. Yet the governor is responsible for appointing the members of the BPP (because Perry has been governor for three terms, all of the current appointees were named by him) and so is effectively able to stack it as he wishes. If Perry were at all skeptical of capital punishment, one would expect that skepticism to be reflected in his choices for the board.

As it stands, the current members are a not a bleeding-heart bunch. That is one reason that the Foster case stands out: "The Foster case was unusual; it was an actual vision of the death penalty as being disproportionate," says Steiker. "But [Perry] hasn't been consistent with that principle since Foster." Indeed, although "his powers are significantly limited in terms of clemency procedures," notes Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty, Perry has demonstrated clearly that he runs the show, rejecting the two other cases where the board recommended clemency – including one similar to Foster's. In 2009, the BPP recommended that Perry commute the sentence of Robert Thompson, also convicted and sentenced to die under the state's law of parties. Thomp­son had participated in a robbery that left a store clerk dead, but he had not fired the fatal shot. His accomplice, Sammy Butler, was responsible for Mansoor Mohammed's death; at trial, Butler was given a life sentence. In rejecting the BPP's recommendation, Perry noted that Thompson had a "murderous past."

(It's necessary to point out that the state of Texas only employs a "clemency" process at all because the U.S. Supreme Court has ruled that one is required for any state that allows the death penalty. In fact, the Texas system is designed so that actual clemency – an extrajudicial judgement of mitigating circumstances requiring mercy – has as little effect as possible. State officials, including the governor and his appointed members of the BPP, routinely cite the existence of "due process" – trial, conviction, and appeals – for their confirmation of death sentences, and potential reasons for clemency are rarely addressed at all.)

Although the notion that the state would kill someone who had not actually killed had drawn worldwide attention to Foster's case, that was not the reason Perry gave for commuting Foster's sentence. Rather, it was the fact that Foster and Brown, the triggerman, had been tried together, that Perry said compelled him to grant the commutation. "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 Lege has done so; in 2009 two bills were filed to address the issues raised in Foster's case, but both ultimately died. One version, by former Dallas Rep. Terri Hodge, took death off the table for a nontriggerman and required severance of capital trials. It passed the House but was then stripped of the provision that would ban death for a party like Foster or Thomp­son. Houlé recalls that this was because Perry indicated the bill would not otherwise earn his signature. "[T]he word came down from the governor that he would veto it," she said recently. Although the bill was stripped to require only severance in capital trials, it still did not make it to the governor's desk. Perry's tinkering in the process is telling, says Houlé. "It's interesting that he would intervene in [an attempt to outlaw] a practice that most people believe is wrong and out of the norm in terms of the death penalty."

It was not the first time that Perry has intervened, nor the most controversial. That occurred in 2001, when Perry vetoed a measure that would have banned the execution of the mentally retarded. "[A]fter many difficult and emotional days of analysis and decision-making – I am vetoing" the bill, he said in a prepared statement on June 17, 2001. The problem with the bill was that as written, he said, it would strip juries of their final decision-making power. The bill "is not about whether to execute mentally retarded capital murderers," he said. "We do not. It's about who makes the determination in the Texas justice system. I believe it is wrong to execute individuals with mental retardation," he continued. "And we do not allow for the execution of the mentally retarded today in Texas." Perry's assurance that the state doesn't execute – and hasn't executed – inmates with mental retardation was troubling to many criminal justice practitioners (indeed, the U.S. Supreme Court noted Perry's veto in its 2002 opinion outlawing the practice of executing those with mental retardations). Despite numerous attempts since to pass a bill to ensure compliance with the ban, lawmakers have yet to do so, allowing the determination to be made by jurors on a case-by-case basis.

Nothing To See Here

Blocking legislation – directly or behind the scenes – is just one facet of what criminal justice practitioners say is Perry's leadership style when it comes to capital punishment. "The cues to his leadership style are in the few moments where he executed a role that is unusual," says Steiker, such as vetoing the mental retardation bill or in commuting Foster's death sentence. Otherwise, says Maurie Levin, a veteran death penalty attorney who, with Steiker, directs UT Law's Capital Punishment Clinic, it is hard to know much at all about Perry and his role in the clemency process – and that itself is disturbing. "Another hallmark of [Perry's] administration is the number of people executed ... and the way in which he has made this a completely closed process," Levin says. "Whereas under Bush we were able to see" more clearly how decisions were made, she says, "Perry decided that was going to be a closed process."

Like Bush and those before him, Perry has said that deciding who dies at the hand of the state is a grave and most serious matter: "The power to make life-and-death decisions is the most sobering responsibility imaginable," he told the Texas Association of Broadcasters in 2001. "I have always exercised this power with the gravity due such a life and death decision. And I will continue to review each capital punishment case brought before me to ensure that due process has been served." It was an echo of his predecessor: Deciding capital cases is "by far the most profound" decision a governor has to make, Bush wrote in his autobiography. "I get the facts, weigh them thoughtfully and carefully, and decide."

Those words came back to embarrass Bush when a group of clemency memos, prepared by his general counsel Alberto Gonzales, was released – after then-Attorney General John Cornyn ruled in 2000 that the memos were subject to the state's open records law – and later became the basis of an article by Alan Berlow in The Atlantic. The memos belied the gravity with which Bush claimed he considered life and death matters. "Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die," Berlow wrote. "Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history." And each "repeatedly failed to apprise the governor of crucial issues in the cases at hand."

Death penalty opponents at a protest last fall (Photo by Jana Birchum)

In the wake of that article, the Chronicle filed a request not only for the Bush memos but also for all of Perry's clemency memos. The Bush memos were released; Perry's were not. In 2002, Attorney General Greg Abbott was elected and the rules were changed. According to Abbott, the memos in their entirety could now be considered "privileged" attorney-client communications and thus exempt from disclosure. We filed a similar request this summer, only to have it once again sent to the A.G. for determination. Although we are still waiting for a formal ruling, we expect that we will again be denied. Indeed, where the state once considered that these sorts of communications should only be redacted – releasing "factual" information contained in the documents and obscuring the privileged information – Abbott's office ruled in 2003 that the entire document could be withheld regardless of how much factual information it contains. In addition to requesting the memos, this year we also requested all emails "to and from the governor," for a given period of time, concerning recently executed Mexican national Humberto Leal; in a new twist, Perry's office is also seeking to keep from the public the content of any of those emails, claiming that some of them are to or from legal staff and that these too are "privileged." We are expecting an opinion on this matter by the end of the month.

That Perry has clamped down on the release of his clemency memos is not surprising, says Levin, but it is nonetheless dismaying. "At any point where there was transparency in the process – and that's a generous word, transparency – it demonstrates the fallacies in the system. Perry shut down any transparency. Given the number of executions under his watch," she says, "that's a really damning legacy." Houlé suggests that this is a hallmark of Perry's general approach to the state's criminal justice system. "An unrepentant unwillingness to admit that mistakes are made," she says. "With Perry, he's never had any doubts. [To him] the exoneration of somebody shows that the system is working – no, a system that works wouldn't have put that person behind bars in the first place."

A Dangerous Mentality

Perry's unwillingness to admit there might be flaws in the system is what death penalty law veterans say has led to a more than two-year political battle to close an inquiry into the 2004 execution of Cameron Todd Willingham, convicted and sentenced to die for the arson-murder of his three young children in Corsicana. According to the fire investigators in 1991, Willingham intentionally set ablaze his home, killing his children. Since his conviction, however, fire science has evolved; to date, roughly a dozen leading fire experts across the country say that the "science" used to convict Willingham was junk, inadequate to determine a fire's origin. That is what the nation's preeminent fire expert, Austin-based Dr. Gerald Hurst, has been saying since 2004. Hurst's grave doubts about the Willingham fire were presented to Perry's office prior to Willingham's execution; Perry did nothing to stop it. At the very least, Willingham defenders argue, he should have imposed a 30-day stay to allow time for Hurst's information to be fully reviewed. "He hasn't been leading the way," says Hampton; "he's been reactive."

In fact, since Willingham's execution, Perry has remained locked into a position that Willingham was certainly guilty – "a monster," he's told reporters. Yet at the same time, Perry has gone out of his way to control an ongoing inquiry into whether the state relied on junk science in order to convict Willingham and ultimately to execute him. The Innocence Project in 2006 asked the nascent Forensic Science Commission to investigate that possibility (in both the Willingham case and in that of Ernest Willis, who was sent to death row based on the same science but later released after prosecutors concluded that he had been wrongly convicted). As the investigation was heating up in 2009, and just days before the panel was set to hear testimony from fire investigator Craig Beyler (who had written a report critical of the science the state had relied upon), Perry stepped in, replacing key members of the commission, including its self-selected chair, Austin defense attorney Sam Bassett, and installing instead his political ally, Williamson County District Attorney John Bradley, whom Perry also named as the FSC chair. Bradley quickly put the brakes on the inquiry.

Bradley ultimately lost his seat at the table this year – his was an interim appointment, and lawmakers during this year's regular session declined to confirm him (see "Texas Forensics: Politics vs. Justice"). Bassett calls his experience on the FSC "enlightening" – he's a supporter of the death penalty, when used sparingly and in guilt-certain cases, but says that his time on the panel changed his "perspective on how post-conviction matters are handled in Texas, including the work of the Governor's office," he wrote in an email to the Chronicle. In a system "flooded" with cases to review, it appears that expertise and experience in assessing cases for serious flaws is lacking. "The Willingham case is a great example," he wrote. Perry's office received Hurst's memo just hours before Willingham's execution, he recalled, which included information that had not previously been litigated. "In such a case, an experienced criminal law practitioner could have done a better job advising the Governor to grant a 30-day stay to study the issue since the memo did raise legitimate concerns," he wrote. "For whatever reason, that did not happen. It is likely that a serious examination of the points raised by Hurst would have resulted in a new trial for Willingham," he continued. "Our system is conditioned to ignore requests to re-examine evidence after a jury has found a person guilty. I think that mentality is dangerous."

Transparent Ambitions

While it seems easy to lay at Perry's feet the responsibility for the real and perceived failings of Texas' capital punishment system, Amarillo attorney Jeff Blackburn, chief counsel for the Innocence Project of Texas, argues that in fact Perry has been more friend than foe to advocates for criminal justice reform. He bucked the courts and powerful state district attorney lobby in granting pardons for the victims of the notorious 1999 Tulia drug sting – a move that was "very risky," Blackburn says. "D.A.s all over the state were opposed to providing these people relief; the Court of Criminal Appeals was opposed to any relief. In hindsight we say it was no big deal. That's baloney. When you're in the middle of it, it is a big deal." Perry has signed into law numerous reforms: There is now prisoner access to post-conviction DNA testing, a life-without-parole sentencing option, and newly inked eyewitness identification reforms. "Perry's actually the least ideological governor that we've ever had – at least in recent memory – on criminal justice reform issues." Indeed, Scott Henson, who writes the Grits for Breakfast blog (and has worked with the Innocence Project of Texas, among other criminal justice reform groups), has echoed that sentiment. "I don't agree with Perry on every subject, by a longshot, and he's probably used the threat of the veto to scuttle as much good legislation as actually passed during his time in office," he wrote on Sept. 1. "But Perry's record on criminal justice is more moderate and complex than his fire breathing pronouncements on the death penalty might lead one to expect. If you're reading this from another state, there's a good chance your Governor can't match Perry's record on criminal-justice reform."

Yet where death is concerned – for which there are no do-overs – criminal justice practitioners are far less charitable. Levin points to the "aggressiveness with which he shut down the Willingham inquiry" as telling of Perry's approach to and attitude about capital punishment. "[T]hat one was directly attributable to him, with substantial potential for culpability or, at least, carelessness in his approach to the process," she said. That it appears he is trying to keep the truth – whatever it may be – from coming out is "scary at best, and really horrifying."

Whether Perry's approach to capital punishment in Texas will matter at all on the national stage remains to be seen. It's unlikely to hurt him – and might well improve his chances – with Republican primary voters. Nationally in a general election, however, with the number of new death sentences and executions dropping dramatically since the mid-Nineties and the growing number of cases of wrongful convictions – led by DNA exonerations – a traditionally tough-on-crime approach toward public safety may not play as well to an electorate increasingly aware of the criminal justice system's dysfunctions. "The national [stage] is probably more skeptical of the death penalty and sees its problems. That is why the numbers are decreasing," says Dieter. But those doubts – especially when it comes to flaws related to cases involving the ultimate punishment – do not appear to have plagued Perry. "To not see its flaws or to step in and say we need to look at this more closely" could pose a challenge for Perry as he broadens his national campaign, says Dieter. With so many executions in Texas, there has been plenty of "opportunity in Texas to say, 'This case is somewhat doubtful'" – yet that hasn't happened. What Perry's record says about his more general approach to crime and punishment may be mixed or even opaque. But there's one thing advocates consider clear. Perry "certainly hasn't stood up and said we have to be more careful," Dieter says. "That kind of image will have to be dealt with and defended."

Science Prevention

Last week, the state Forensic Science Commission indicated that it will close its Cameron Todd Willingham inquiry without issuing conclusions about whether state fire investigators had engaged in misconduct or negligence during their investigation into the fatal fire that claimed Willingham's children – and ultimately, through execution, Willingham. Attorney General Greg Abbott had issued an opinion strictly limiting the commission's jurisdiction – an issue brought to the A.G. by Perry's mid-investigation appointee, Williamson County D.A. John Bradley. For more on the latest developments, see "Texas Forensics: Politics vs. Justice."