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.”]