Board Denies Clemency for Texas Man Convicted Under Law of Parties Who Was Not Present When Killing Occurred

The Texas Board of Pardons and Paroles denied clemency for Patrick Murphy (pictured) on March 27, 2019, moving the state one step closer to executing him on March 28 for a murder he neither committed nor intended to commit nor was present when it occurred.

Murphy was convicted under the state’s “Law of Parties,” which allows defendants to be sentenced to death based upon the actions and intent of others, if the defendant played even a small role in a crime that resulted in someone’s death. Critics of the law argue that it violates the U.S. Supreme Court’s 1982 constitutional prohibition against executing a person who did not kill or intend that a killing take place and was a minor participant in an offense that resulted in a killing.

Murphy was one of the “Texas 7,” a group of prisoners who escaped from prison in 2000. Days after their escape, the men planned to rob a sporting goods store, but Murphy told the group’s leader, George Rivas, that he did not want to participate in the robbery. Murphy waited outside the store in a truck, radioed the others when he saw police arriving, and drove away from the store to a nearby apartment complex. After he left, Officer Aubrey Hawkins was killed in a shootout with the other men.

In 1982, in Enmund v. Florida, the U.S. Supreme Court wrote that “the death penalty … is an excessive penalty for the robber who, as such, does not take human life.” The Court ruled that the focus of a capital punishment trial must be on the culpability of the defendant for his own acts, “not on that of those who committed the robbery and shot the victims.” Murphy’s court-appointed trial lawyer failed to object to the capital charges against him and his state-appointed post-conviction lawyer failed to raise trial counsel’s ineffectiveness, barring the issue from federal review. Murphy’s current lawyers asked the Texas Court of Criminal Appeals to reopen his case to consider the issue, but the court denied that request on March 25. They also sought clemency from the Texas Board of Pardons and Paroles. However, the Board rejected that request and an alternative request for a temporary reprieve until the state legislature acts on pending legislation that would eliminate the death penalty for people convicted under the law of parties.

In a statement, Murphy’s attorneys David Dow and Jeff Newberry said, “It is unconscionable that Patrick Murphy may be executed for a murder he did not commit that resulted from a robbery in which he did not participate, at the exact moment when lawmakers are considering whether anyone possibly convicted under Section 7.02(b) of the Texas Penal Code should be eligible for the death penalty.” Following the Board’s action, Murphy’s lawyer’s submitted a request for a one-time 30-day reprieve from Governor Greg Abbott “so that he is not executed before additional legislation is passed that would [make] clear convictions obtained in trials identical to his are not eligible for a sentence of death.” While that bill would not be retroactive to Murphy’s case, his lawyers wrote, there is “a substantial possibility” that if the bill passes, the state courts “would hold Mr. Murphy’s death sentence is unconstitutional.”

Murphy also has filed motions in the Texas Court of Criminal Appeals and the U.S. District Court for the Southern District of Texas in which his attorneys argue that Texas is violating the Establishment Clause of the First Amendment by refusing to allow Murphy’s Buddhist spiritual advisor to be present in the execution chamber instead of a Christian or Muslim chaplain. The Texas Department of Criminal Justice employs Christian and Muslim chaplains, who are allowed to be present in the execution chamber, but does not allow chaplains of other faiths, saying that they present a security risk because they are not employees.

“A law or policy that is not neutral between religions, like TDCJ’s policy, is inherently suspect and strict scrutiny must be applied when determining whether the policy violates the First Amendment’s Establishment Clause,” Murphy’s attorneys wrote. A similar claim was raised before the Alabama execution of Domineque Ray, a Muslim prisoner who was not allowed to have his imam present at his execution. The state court denied Murphy’s motion on March 25 and the federal court followed suit on March 27, both saying his claim was untimely filed.

[UPDATE: On March 28, 2019, the U.S. Supreme Court granted Murphy a stay of execution “pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”]