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Published on Friday, August 15, 2008 by The Guardian/UK

Death and Texas

Governor Rick Perry and his state's flawed judicial system are now executing convicts for crimes they did not commit

by Maura Kelly

Texans - or at least governor Rick Perry and his supporters - seem to love the death penalty almost as much as flying the state flag. And last week, the good ol' Texan bloodlust came under international scrutiny once again when the state put to death a man born in Mexico, where capital punishment is prohibited.

During the trial of death row inmate José Ernesto Medellín, he was not given the opportunity to seek legal help from Mexican consulates, a right granted under the 1963 Vienna Convention. Appeals from all over the world - including one from the UN's International Court of Justice and another from President Bush himself - pointed out the discrepancy and asked the state to delay the execution till Medellín's case could be further reviewed. But Perry refused to put on the brakes, and Medellín died of a lethal injection on August 6.

"Texans are doing just fine governing Texas," Perry said last year in response to the European Union's request that he reconsider another death row case involving a young man who had never been accused of directly participating in the murder to which he was linked. Given Perry's audacity, perhaps it's no surprise he has single-handedly overseen more executions than any other governor in the country since the death penalty was reinstated in 1976. He also vetoed a ban on the execution of mentally handicapped inmates in 2002. And since 1976, Texas has carried out more executions than any other state: 409 - more than four times as many as Virginia, its nearest competitor, with 99.

At the same time, it's not that difficult to understand why Perry might not have been terribly sympathetic to Medellín: There seems to be no question that the Mexican took part in the raping and killing of two teenage girls in 1993 as part of a gang initiation rite. But the story of a young man named Jeff Wood, set to be put to death on August 21, more poignantly highlights the injustices of the Texan judicial system.

Despite the fact that the death penalty is supposedly reserved for only the most heinous crimes, Wood is sentenced to death for a murder that prosecutors have never accused him of committing - one that took place when he wasn't even in the same building. Rather, he was outside in a gas station parking lot, waiting in a pick-up truck for his buddy, Daniel Reneau, to come out of a road-side store with drinks and snacks. Wood contends that he didn't know Reneau was planning to rob the store - a frequent hang-out spot for the two of them - and that he also had no idea Reneau was going to murder the store clerk, Kris Keeran, a friend of both men.

But after hearing a shot ring out on the morning of January 2, 1996, Wood ran inside and saw Keeran laying dead from a single .22-calibre bullet that entered between his eye and his nose. Reneau was holding the gun, which he then turned on Wood, ordering him to grab the store's surveillance video. Wood - who suffers from learning disabilities and mental problems as a result of severe physical abuse during his childhood - complied. Reneau took the store's safe, and the two of them fled to Wood's brother house.

Wood and Reneau had talked with the manager of the store about robbing the place on New Year's Day, when the register would be full of money from the night before. But after Wood backed out, he assumed, since he heard no more about it, that the robbery plan was kaput. Instead, Reneau decided to go through with it on his own. Wood contends he had no idea Reneau was even packing a gun at the time of the robbery.

Reneau was executed for the murder in 2002. But thanks to the Texas "Law of Parties", anyone who conspires with another person or a group to commit one crime (like robbery) and happens to commit another crime in the process (like murder) can be found guilty of the secondary crime - even if the individual in question wasn't directly involved in planning it or carrying it out. And when the secondary crime is murder, that person can also be put to death for it. That's the state's justification for why Wood is on death row - except, of course, that Wood claims he wasn't involved in planning the robbery and that he would never have helped Reneau try to get away with it if Reneau hadn't trained a gun on him. As such, there's been a huge public outcry in support of Wood; the second of two rallies this month to draw attention to his plight will take place on Saturday, August 16.

Wood's situation is similar to another recent case in Texas, that of Kenneth Foster - the one that drew the attention of the European Union. Like Wood, Foster did not participate in the actual murder he was sentenced to die for. Like Wood, Foster did not hold a gun at any point while the crime he was linked to was committed. Like Wood, Foster has maintained - convincingly - that he had no foreknowledge the murder was going to happen. Like Wood, Foster was forced to drive the "get-away" car.

Following demands from around the world that Texas review the Foster case, the Texas board of pardons and paroles recommended that his sentence be commuted - a rare occurrence. Even more unusually, Governor Perry actually took the board's advice and, three hours before Foster's execution was set to happen, stopped it: the first time in nearly seven years in office that he had done so (excluding cases in which Supreme Court rulings had barred the execution of juveniles and the mentally disabled).

Will Perry commute the sentence this time, for Wood, like he did for Foster? The cases are so similar that there seems to be hope that he will. Then again, when announcing his decision in the Foster case, Perry didn't mention how problematic the Law of Parties is; instead, he cited a procedural flaw. (Foster was tried simultaneously with the guy convicted of the actual murder; that's what Perry referred to after commuting his sentence.) So who knows.

But maybe Perry and the state of Texas should finally start to think about how unconstitutional it is to execute someone based on the Law of Parties. After all, in their 1982 ruling in the case of Enmund v Florida, the Supreme Court found it was unconstitutional to execute the driver of a get-away car in an armed robbery. The court's rationale was that the eighth amendment forbids imposing capital punishment on someone "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed". Why can't Texas see that by using the "Law of Parties" as a justification for execution, they are not just aiding and abetting but planning and carrying out pre-meditated murders which should not be occurring - and contributing to a cycle of violence and injustice?

Maura Kelly has written for Slate, Salon, the New York Observer, the Washington Post, Marie Claire, the Believer and other publications. She is working on a novel.
© Guardian News and Media Limited 2008

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