By SOMMER INGRAM Associated Press
March 29, 2011
AUSTIN, Texas — A Texas lawmaker wants to suspend executions in the nation’s most active death penalty state and create a commission to study whether the process needs to be fixed.
A state House committee heard testimony Tuesday on a bill by Rep. Harold Dutton, D-Houston, that would create the Texas Capital Punishment Commission and establish a two-year moratorium on executions while the commission completes its study.
The nine-member commission would propose legislation to fix any inequities in state capital punishment procedures based on the study’s findings.
Advocates of the bill say that Texas has long needed to thoroughly vet its use of the penalty. At least 12 Texans have been exonerated from death row, and supporters say the state must carefully scrutinize the statute to erase any doubt about whether death row inmates are actually guilty.
“That’s a flaw in our system that I think deserves some attention from this Legislature,” Dutton said. “And we ought to stop the system from executing people while we fix it.”
Scott Cobb, president of Texas Moratorium Network, likened the penalty to a plane that has crashed and needs examination.
“After a plane crash, we look to see what the problem was,” he said. “The death penalty is a flawed system, but one we haven’t looked at in a comprehensive way to see if we can improve the system to protect people who are innocent.”
Dutton’s bill was just one of several bills the committee left pending to change the state death penalty and alter procedures in capital felony cases.
Dutton and Rep. Borris Miles, D-Houston, are working to amend a state law that has prompted nationwide criticism.
A Texas statute known as the law of parties allows a person to be held liable for a murder as a co-conspirator and possibly face the death penalty even if they didn’t physically commit the crime.
The bills would allow co-defendants to have separate trials in death penalty cases. Dutton’s bill would prohibit death sentences in such cases.
Family members and friends of Texans convicted under the law testified before the committee, pleading with lawmakers to fundamentally change the statute that unfairly sent their loved ones to death row.
The statute caught lawmakers’ attention in 2007 when the case of Kenneth Foster spurred national outrage and a massive grassroots effort to prove his innocence.
Foster was the driver of getaway car in a 1996 robbery-turned-shooting. Foster was tried with the murderer, and the jury invoked the law of parties to determine that Foster should have anticipated that the robberies could end in murder.
“Everything that applied to one, applied to the other,” Foster’s father, Kenneth Foster, Sr., said of the trial. “It was unfair for each one because the negative weight took a toll on both throughout the entire trial.”
After spending 10 years on death row, Foster was hours away from being executed as an accomplice to murder when Gov. Rick Perry spared his life.
Following the Texas Board of Pardons and Paroles recommendation that Perry grant Foster a death row reprieve, the governor expressed concern about defendants being tried at the same time and urged lawmakers to re-examine the practice.
“Foster’s story is a perfect example of why this needs to be changed,” Miles said. “To sentence a man to death who has not committed murder himself is inhumane, cruel and fundamentally unjust.”
Those advocating for reform say the law is based in unrealistic expectations akin to mind-reading.
“This law cries out for change,” said attorney Mary Phelps. “It’s so broadly written that it actually could involve people who had no connection to the eventual crime.”
Fort Worth Star-Telegram
March 29, 2011
AUSTIN — Clarence Brandley spent 10 years on Death Row for the slaying of a 16-year-old girl, a crime he didn’t commit. Now, more than two decades after being cleared, the former custodian hopes to convince Texas lawmakers that it’s time to abolish the death penalty in Texas — or least impose a moratorium on executions.
“To me, it’s just a tool that prosecutors use to enhance their political careers,” he said.
Maura Irby of Houston embodies the opposite side of the debate. Her husband, Houston motorcycle officer James B. Irby, was killed in June 1990 while making a routine traffic stop. A passenger, a paroled convict, shot him.
If the death penalty is abolished or suspended, Maura Irby said Tuesday, “what kind of message does that send to our law enforcement if we’re not making it safe for them to do their jobs?”
The opposing perspectives of one of society’s most contentious issues were on display Tuesday as the House Criminal Jurisprudence Committee heard testimony in the first extensive death penalty hearing of the 82nd Legislature.
Texas has executed more inmates than any other state — 446 since the death penalty was reinstated in 1976. Five have executions scheduled through midsummer, including two from Tarrant County.
One is Cleve Foster, who is scheduled to be executed Tuesday for the 2002 rape-slaying of Mary Pal, a Sudanese immigrant. The other is Cary Kerr, whose execution date is May 3 for raping, beating and strangling Pamela Horton in 2001. Foster would be the first Texas inmate executed with a new three-drug mixture.
Among the bills considered Tuesday was HB1641 by Rep. Harold Dutton, D-Houston, which would impose a two-year moratorium on executions while a select commission investigates how capital punishment is carried out in Texas. Dutton and Rep. Jessica Farrar, D-Houston, are also sponsoring separate bills to abolish the death penalty.
Dutton said his proposal is designed to “make sure that the people who are factually innocent don’t wind up being legally guilty.”
Former Gov. Mark White, who oversaw 19 executions while he was in office from 1983 to 1987, endorsed the moratorium in a letter to the committee. White, a Democrat who has previously raised questions about the death penalty, said he believes that the review is needed to deflect “the possibility of our justice system executing an innocent individual.”
Charles Terrell, former chairman of the Texas Criminal Justice Department, also supports the moratorium and investigative commission, calling Dutton’s bill a “matter of common sense.”
“Texas does not need to be executing innocent people, and what harm does a moratorium do?” he said. He noted that Death Row inmates “would not be released from prison while the study is done.”
More than 40 exonerations in Texas — including several of Death Row inmates — have fueled efforts to abolish or suspend the death penalty.
Opponents also cite the high-profile case of Cameron Todd Willingham, who was executed in 2004 after a Corsicana jury convicted him of killing his three daughters in a house fire.
Several fire experts have said that the arson investigation was based on outmoded science, raising the possibility that the fire may have been accidental. The Texas Forensic Science Commission is reported to be nearly finished with an inquiry into the case.
“Texas has a problem with its death penalty system and we need to take a two-year pause on executions,” said Scott Cobb of the Texas Moratorium Network, a leading supporter of Dutton’s bill.
But Charley Wilkison, director of public affairs for the Combined Law Enforcement Associations of Texas, said his organization strongly opposes Dutton’s bill, saying that lifting or suspending capital punishment would endanger officers.