BY JOLIE MCCULLOUGH for the TEXAS TRIBUNE
Hours after his execution was originally scheduled to begin, the U.S Supreme Court stopped the death of one of the infamous “Texas Seven.”
The high court granted Patrick Murphy’s last appeal Thursday night which said the Texas Department of Criminal Justice violated his religious rights by not allowing a Buddhist priest into the execution chamber with him. The department only allows prison employees in the death chamber, and only Christian and Muslim clerics are employed with the state.
Murphy, 57, is one of seven in a group of escaped prisoners who committed multiple robberies and killed a police officer near Dallas in 2000 during more than a month on the run. Four others have already been executed, one killed himself when police caught up to them in Colorado, and one other remains on death row with Murphy.
But Murphy’s death sentence and execution differ from the other men’s in one distinctive way: Records indicate he didn’t participate in the officer’s murder and wasn’t there when it happened. In the weeks before his death, his lawyers hoped bills proposed in the Texas Legislature to take the death penalty off the table for some accomplices who didn’t pull the trigger would convince the courts or the governor to delay Murphy’s execution.
On Christmas Eve in 2000, Murphy was the lookout in the robbery of a sporting goods store in Irving, remaining in the car in front of the store and listening to a police scanner while the other six men went inside, according to court records. He and another escapee later said that Murphy used a two-way radio to warn the others to flee when he heard that police were on their way. And as 31-year-old Officer Aubrey Hawkins began to drive to the back of the store where the other robbers were, Murphy left the scene on the instruction of the group’s leader.
He said he didn’t find out the other men had shot Hawkins 11 times and run over him in a stolen car until the group reunited later.
Under Texas law, Murphy is just as culpable as the men who fired their weapons at Hawkins because he was participating in the robbery, and a jury determined that either Murphy was acting with the intent to help in the crime, or, even if he had no intent to kill anyone, the murder “should have been anticipated as a result” of the robbery. To be sentenced to death, the jury must have agreed that Murphy at least anticipated the death. The statute is part of a controversial law commonly referred to as the “law of parties,” under which accomplices and triggermen are treated alike.
State Rep. Harold Dutton, D-Houston, for a decade has filed bills to eliminate the death penalty in the law-of-parties instances that hinge on that “anticipation” clause, but they have never made it to a vote on the chamber floor. In 2017, the issue picked up some attention from other lawmakers, including a staunch conservative, after death row inmate Jeff Wood, who was a getaway driver in a planned robbery that became a murder, narrowly avoided execution the year before.
“[Wood] may have suspected, he may have anticipated, but he didn’t know,” said state Rep. Jeff Leach, R-Plano, at the beginning of the 2017 legislative session. “You can’t be executing people like that — you just can’t. We can keep them in prison for life, but to execute them is an entirely different conversation.”
Still, the 2017 bills — authored by two House Democrats — died before going to the floor for a vote. This year, Leach and state Sen. Juan “Chuy” Hinojosa, D-McAllen, have also put their names on similar legislation. The bills have not been scheduled for a committee hearing yet, and although Leach was vocal on the Wood case in 2017, he declined to comment on Murphy’s execution. It’s unclear if a jury found Murphy guilty under the anticipation clause of the law of parties which is targeted by the legislation, or the first section, which includes intent to assist in the crime.
When prosecutors have argued against the bills in the past, they have used the Texas Seven case as an example as to why the law is needed, giving more tools to those pursuing heinous cases. Before the prison escape, Murphy was serving a 50-year sentence after being convicted of breaking into a woman’s home and sexually assaulting her at knifepoint. And court rulings note that Murphy told police after his arrest that his “purpose ‘was to initiate firefight’” if he was pursued by police when he left the store.
His lawyers said this week it would be “unconscionable” for Murphy to be executed while lawmakers consider changing the law in cases similar to his. They acknowledge that the law, even if passed, wouldn’t have applied retroactively to Murphy’s case, but they believed it would open the way for the courts to find his death sentence unconstitutional.
“Carrying out the execution of Patrick Murphy, who neither fired a shot at Officer Hawkins nor had any reason to know others would do so, would not be proper retaliation but would instead simply be vengeance,” wrote David Dow and Jeff Newberry in a petition to the parole board asking for a recommendation to change his sentence to life in prison or delay the execution.
On Tuesday, the board voted against such a recommendation in Murphy’s case, and state and federal courts also ruled against stopping his execution.
In a letter Wednesday, Dow and Newberry asked Abbott to grant a 30-day delay of execution while the legislation on the law of parties plays out at the Capitol. Abbott has stopped one execution since he took office in 2015, when he changed the sentence of Thomas Whitaker to life in prison after a unanimous recommendation by the parole board.
But despite Abbott’s silence, Murphy’s lawyers also raised late appeals claiming prison policy violated his religious rights because the Texas Department of Criminal Justice would not let a Buddhist priest into the death chamber with him. The filings said only those employed by the department can be in the death chamber, and TDCJ only employs Christian and Muslim clerics. Often, a chaplain will rest his hand on the condemned man’s lower leg while he is injected with lethal drugs.
The appeals relate to a case out of Alabama that recently drew national attention. In that case, the federal appellate court agreed to halt the execution of Domineque Hakim Marcelle Ray because the state would not allow a Muslim spiritual adviser in the execution room, but the U.S. Supreme Court overturned it based on the late timing of the filing.