AUSTIN, Texas – Texas parole board on Tuesday made a rare recommendation to commute a death sentence, unanimously agree to a “lesser punishment” for a man to be executed this week for the mastermind behind the murder of his mother and brother.
Thomas “Bart” Whitaker, is scheduled for lethal injection Thursday for the shooting of his mother and brother in their suburban Houston home in 2003. Whitaker’s father, Kent, was also shot in the attack, but survived. He said that he wants his 38-year-old son to live.
The recommendation of the seven members of the Board of Pardons and Paroles go to Republican Gov. Greg Abbott. It is unclear whether Abbott will accept or reject. The governor appoints the parole board members.
It is only the fourth time since the state resumed executions in 1982 that the parole board has recommended clemency in the days of the prisoner of the planned execution. In two of those cases, then-Gov. Rick Perry rejected the board recommendation and that prisoners are some of the 548 is executed in Texas, more than any other state.
David Gutierrez, the parole board’s presiding officer, said the panel recommended the governor commute Whitaker’s sentence “to a lesser punishment.” Members of the jury who convicted him and sentenced him to death in 2007 had only one other option, a life sentence.
In the clemency petition, Whitaker’s lawyers said that his execution would be “a permanent compound” of his father’s suffering and grief, and the comparison of the case to the biblical story of Cain and Abel, where God sent Cain “restless wandering” after the killing of his brother.
Kent Whitaker has said that he’s seen “too many dead already” has forgiven his son, and he believes that his son is a changed person.
Whitaker, his son is a lawyer and supporters awaited the decision in a conference room in the Texas Capital. As a lawyer, Keith Hampton, read the outcome, Whitaker covered his face with his hand and cried softly. After about 15 seconds, he looked at Hampton and said, “Thank you.”
“I’ve never believed that we would go for a unanimous decision,” he said, while he and Hampton went immediately about the building to Abbott’s ceremonial office — even though the governor was not there — to plead with the governor that he in honor of the board of recommendation.
“The best we hoped for was a 4-3,” he said. “This is more than great. I can’t tell you.”
During his trial, Bart Whitaker said he took “100 percent” responsibility for the planning and execution of the murders. The prosecutors said he hated his parents and was hoping to collect an inheritance.
“I think it’s the wrong decision, and clearly the wrong decision,” said Fort Bend County District Attorney John Healey, whose office prosecuted Whitaker and convinced the jury to convict him and send him to death row.
He said Tuesday that he did not know whether he could speak with Abbott for the governor made a decision.
“I don’t know if that is a part of the allowed protocol,” Healey said. “It is a unique situation.”
Evidence showed the murder plot involves two of Whitaker’s friends and was at least Whitaker’s third attempt to kill his family. The recording was made to look like an interrupted burglary in the house of the family in Sugar Land, southwest of Houston, and Bart Whitaker was a shot in the arm to draw attention away from him.
About six months after the shootings, he disappeared. A year later he was arrested in Mexico.
The shooter, Chris Brashear, pled guilty in 2007 to a murder charge and was sentenced to life in prison. Another man, Steve Champagne, who rode Brashear of the Whitaker home on the night of the shooting, took a 15-year prison sentence in exchange for testifying at Whitaker’s trial.
In 2007, the death row inmate Kenneth Foster was spared and his sentence commuted to life. The council had voted 6-1 in favor of a commutation. Perry said Foster and a co-suspect in a fatal robbery in San Antonio should not have been tried together for the murder. Foster was the getaway driver in the death, and both he and his partner received death sentences. His co-defendant was executed.
In 2004, Perry-interpretation of the parole board’s 5-1 vote in favour of the grace and convicted killer Kelsey Patterson was executed. He took the same action in 2009 in the case of death row inmate Robert Lee Thompson was executed despite a favourable a 5-2 decision of the board of directors.
Michael Graczyk reported from Houston.