Death Watch: “Texas Seven” Member Contests “Law of Parties”

Editor’s Note: After this story went to press, the Texas Court of Criminal Appeals denied Patrick Murphy’s request to reconsider its April 2006 Denial of Relief without issuing a written order. Murphy has since filed two additional requests in the CCA: another motion to reconsider, but for the court’s 2009 Denial of Relief during his appeal proceedings. The second pleading addresses a First Amendment issue regarding Murphy’s request to the Texas Department of Criminal Justice to have his Buddhist “spiritual adviser” present at his execution. The filing alleges the TDCJ denied the request and said he could choose whether or not he wished to have a Christian Chaplain present. “Murphy’s execution pursuant to TDCJ’s policy of excluding non-Christian religious clerics from the execution chamber clearly would violate his rights under both the Free Exercise and Establishment Clauses of the First Amendment,” argues the pleading. Murphy is scheduled to be executed on Thursday, March 28.

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If the state has its way, 57-year-old Patrick Murphy of "Texas Seven" infamy will be executed on March 28, though he didn't commit the murder that landed him on death row.

Murphy, along with six other prisoners (including Joseph Garcia, who was executed in December), achieved the biggest prison escape in Texas history in 2000 when they broke out of a maximum-security facility near San Antonio armed with stolen weapons. The men committed several robberies across Texas before hitting a sporting goods store outside of Dallas on Christmas Eve, an act which went awry, leading to the shooting death of Irving police officer Aubrey Hawkins. Murphy, however, maintains he did not wish to participate in the robbery and instead waited outside in the car. He, Garcia, and four others were caught in Colorado soon thereafter (the seventh committed suicide), and each was sentenced to death for Hawkins' capital murder under the controversial Texas "law of parties," which allows accomplices to another felony – such as robbery – that results in murder to be held responsible for the slaying even if they had no part in the killing.

As his death date nears, Murphy, who was originally serving a 50-year sentence for aggravated sexual assault, has asked the Texas Board of Pardons and Paroles to commute his sentence or offer a 90-day reprieve to await possible new "bipartisan and bicameral" legislation. Several bills have been filed this Lege session, including Sen. Juan Hino­josa's Senate Bill 929 and Rep. Jeff Leach's House Bill 4113, which would prohibit executions of those found guilty of capital murder under the law of parties (section 7.02(b) of the Penal Code). So the filing asks the BPP to "recognize that Mur­phy should not be executed when his conviction was obtained pursuant to a charge" that state lawmakers have "recognized cannot sustain a death sentence." If nothing else, the filing argues, Murphy's execution should be put on hold until the fate of the bills is known, so the Texas Court of Criminal Appeals could reconsider his case if the law is changed.

Murphy's BPP filing also points out that while Texas law allows juries to sentence an accomplice of a lesser crime to death, under the Supreme Court's Eighth Amendment jurisprudence, a defendant "can only be" executed for the crime "if he was a major participant in the felony." But Murphy's trial jury was never asked to determine whether or not he played a major role in the robbery that resulted in Hawkins' murder. Hence, executing him without putting this question before a jury would be a violation of the Eighth Amendment. Killing Murphy, the filing argues, who "neither fired a shot at Officer Hawkins nor had any reason to know others would do so," would "simply be vengeance."

In addition to his commutation plea, Murphy has asked the CCA to reconsider its April 2006 Denial of Relief, or otherwise allow him to file for a rehearing. Like his motion before the BPP, Murphy's CCA filing cites pending legislation and violation of his constitutional rights. However, here Murphy's counsel notes that the proposed legislation would not "provide relief for those" like Murphy, because the change in law would only apply to criminal proceedings that start on or after the effective date of Sept. 1, 2019. Instead, the motion insists, "The same concern that has led these legislators to propose the now-pending legislation is nonetheless present in Murphy's case."

It's been a long legal fight for Mur­phy; his last round of appeals – largely arguing ineffective counsel – ended in denial at SCOTUS in November. Without intervention, he'll the third man executed by the state this year and the fifth member of the "Texas Seven" to be put to death, leaving only Randy Halprin alive. Though Halprin has not yet been given an execution date, he has also maintained he didn't fire any of the five guns that killed Hawkins.