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August 18, 2016

New York Times editorial pushes for "Mercy on Texas’ Death Row" for condemned getaway driver

Today's New York Times has this notable new editorial discussing a notable capital case in Texas under the headline "Rare Chance for Mercy on Texas’ Death Row." Here are excerpts:

When it comes to capital punishment, there is not much official mercy to be found in the state of Texas.  As 537 death row inmates were executed there over the last 40 years, only two inmates were granted clemency.  The last commutation to life in prison occurred nine years ago, when Gov. Rick Perry, despite his formidable tally of 319 executions, chose to make an exception and spare a man convicted of murder under the state’s arcane and patently unfair “Law of Parties.”

This law in effect holds that someone waiting outside at the wheel of a getaway car deserves the same capital punishment as his associate inside who shoots and kills a store clerk.  This is the rough equation that now finds Jeffrey Wood on death row in Texas, 20 years after his involvement in just such a crime.  The actual killer was executed in 2002; Mr. Wood faces execution next Wednesday as a somehow equally culpable party, unless the state commutes his sentence to life in prison.

The Law of Parties has been on trial as much as Mr. Wood has in the arduous criminal justice process in which he faces death. With an I.Q. of 80 and no criminal history, Mr. Wood, who was 22 then, was initially found by a jury to be incompetent to stand trial. But the state persisted, and he was convicted in a slipshod proceeding in which no mitigating evidence or cross-examination was attempted in his behalf during the crucial sentencing hearing....

The theory underpinning the Law of Parties — that an accomplice deserves to die even though he did not kill the victim — has been abandoned as difficult to apply if not unjust in most state jurisdictions in recent decades.  It holds that an accomplice should have anticipated the likelihood of a capital murder and deserves the ultimate penalty.  Since the death penalty was restored in 1976, there have been only 10 executions in six states under accomplice culpability laws, in which defendants did not directly kill the victim, according to Texas Monthly.  Five of them have been in Texas. Jared Tyler, Mr. Wood’s lawyer, who specializes in the state’s death row cases, says he has never seen a sentence of execution “in which there was no defense at all on the question of death worthiness.”

This is just one of many grounds for the clemency that four dozen evangelical leaders have recommended to avoid a gross injustice. The state parole board would have to make this recommendation, with the final decision by Gov. Greg Abbott, who has not granted clemency in 19 executions.

The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is. The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared.

UPDATE:  For more interesting and timely coverage of this case, check out this new Texas Tribune article headlined "State Rep. Leach Tries to Stop Jeff Wood Execution."  Here is how the article gets started:

It’s not often that a staunch conservative loses sleep over imposition of the death penalty, but state Rep. Jeff Leach, R-Plano, says he is up nights over the impending execution of Jeff Wood.

The two-term legislator has spent the past week poring over court documents and speaking with the governor’s office and Texas Board of Pardons and Paroles, hoping to prevent what would be the state’s seventh execution of the year. Wood is set to die by lethal injection Aug. 24.  “I simply do not believe that Mr. Wood is deserving of the death sentence,” Leach told the Tribune. “I can’t sit quietly by and not say anything.”

August 18, 2016 at 10:24 AM | Permalink


It holds that an accomplice should have anticipated the likelihood of a capital murder and deserves the ultimate penalty.

I don't think the New York Times Editorial Board does such a good job in this crucial detail. I think the law in Texas is that, if in the attempt to commit a felony one accomplice to that felony should have anticipated that the first felony would result in the commission of a second felony by a second accomplice, then the first accomplice is responsible for the second felony as well. The Editorial Board, however, makes it sound like the law presumes that an accomplice must have known the second offense would be committed, and I don't think that presumption is in the law.

Nevertheless, from everything I've read about this case, I cannot disagree with the opinion that this man's life should be spared. He is mentally retarded, and the reports of the trial process indicate (as this editorial mentions) all kinds of problems. Indeed there is even a good question of whether the "Law of Parties," correctly understood, nonetheless is too readily subject to prosecutorial abuse or abuse or misunderstanding by triers of fact. It may very well be reasonable to hold someone responsible for a crime he should have known would result from a felony he knowingly took part in, but perhaps some defendants, even under such a law, are being held responsible for secondary offenses they did not in fact have reason to anticipate. That would be an interesting question for an editorial to explore but without too loosely or just incorrectly characterizing the law, as seems to have happened here.

Posted by: Virgil T. Morant | Aug 18, 2016 11:42:38 AM

The NYT editorial is sloppy. To be precise, the law in Texas for death-eligibility is that the defendant at least that he should have anticipated, if charged as a conspirator. In the penalty phase, the standard is whether the defendant caused the death or anticipated the death. The difference being "should have anticipated" versus "anticipated."

Regardless, Jeff Wood should not be killed.

Posted by: Jay | Aug 18, 2016 12:48:14 PM

I have serious questions about the factual accuracy of the statistic that only ten accomplices have been executed since 1976. I know of at least three or four individuals executed in Missouri in which the evidence was either that they were clearly the accomplice or it was unknown which of the co-defendants killed the victim(s).

The Law of parties in Texas may be slightly different than in the rest of the country, but most states have some form of accomplice liability which permits the non-killer to be held liable and subject to execution if they have the necessary intent -- e.g. the person who hires a hitman can be executed in most states.

Posted by: tmm | Aug 18, 2016 1:53:52 PM

The description is somewhat confusing given Enmund v. Florida.

Posted by: Joe | Aug 19, 2016 3:53:53 PM

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