The Secret Pardon

Every couple of minutes, attorney Rob Owen glances nervously at the calendar in his office. Barring the intervention of the U.S. Supreme Court, a reprieve from the secretive Texas Board of Pardons and Paroles is the last hope for his client, Hank Skinner, to avoid the poison-filled syringe that awaits him on Wednesday.

The seven-member board makes life-or-death decisions, recommending to the governor whether an execution should be delayed, called off or carried out. Yet it’s one of the least transparent agencies in state government, making it all but impossible for Owen, or any other member of the public, to decipher how or why it makes decisions. The board doesn't have to hold public meetings on clemency cases like Skinner's. It's not required to give any reasons for its recommendations. Most times, the seven members simply fax in their votes. Without a majority vote, clemency is denied. What’s more, there are no guidelines in statute or in the board’s rules that outline a basis for decision-making. And nearly all the documents the board uses to make its decisions are kept secret under state law — even after an inmate is executed. “To the extent we assume that the clemency review process is a meaningful safeguard for cases like Hank’s, where there might be doubt about guilt … our trust is misplaced,” says Owen, co-director of the University of Texas at Austin School of Law's Capital Punishment Clinic.

Criminal justice advocates and some lawmakers have called for reform of the Texas clemency process for years, calling the current system opaque and arbitrary. Especially in the wake of high-profile cases like that of Cameron Todd Willingham, who was executed in 2004 despite serious concern about his guilt in an arson that killed his daughters; and of Tim Cole, who was exonerated of a rape conviction after he died of an asthma attack in prison, proponents of reform say the time for change is now — before Texas puts an innocent person to death. Even Gov. Rick Perry has supported past efforts to require the board to meet in public in capital clemency cases. Rissie Owens, chairwoman of the Board of Pardons and Paroles, and a member of the Huntsville school board, declined an interview for this story and did not answer written questions about calls for reform. She sent an e-mailed response outlining the board's current rules. 

Skinner was sentenced to death in 1995 for a triple homicide he says he did not commit. On New Year’s Eve 1993, police in the Panhandle town of Pampa found Skinner’s live-in girlfriend, Twila Busby, strangled and beaten and her two mentally disabled adult sons stabbed to death. Investigators immediately turned to Skinner, who had a history of petty crime and drug and alcohol abuse. A jury convicted him in less than two hours, based largely on evidence that showed the victims’ blood on Skinner’s clothes and on the testimony of an ex-girlfriend who later recanted her story.

But Skinner argues he was so smashed on vodka and codeine that he was unconscious at the time of the murders. He maintains he would not have had the physical stamina or coherence to kill three people. And he’s pretty certain that Busby’s uncle — who is now dead but had an incestuous relationship with Busby and had a violent history — was the real murderer. His original trial attorney, a former Gray County district attorney who had prosecuted two previous cases against Skinner, did not request testing on a slew of DNA evidence found at the crime scene. For a decade, Skinner has pleaded with the courts to allow testing of that evidence, including a rape kit from Busby, skin found under her fingernails, knives, and sweat and hair from a man’s windbreaker. Repeatedly, Texas courts have denied Skinner’s requests, arguing that he should have had the testing done at trial. Skinner’s final chances for testing now rest with three sources: the U.S. Supreme Court, Gov. Rick Perry and the Texas Board of Pardons and Paroles.

Skinner’s attorneys have asked the Supreme Court to force Texas courts to do DNA testing in Skinner’s case. They have written Perry, asking him to use his authority to grant a one-time 30-day reprieve — something he has only done twice — and order the testing. And Skinner has applied to the Board of Pardons and Paroles for clemency and has had an interview with board staff to plead his case.  

Owen says his only hope about the prospects for board intervention is based on the arbitrariness of the process. He figures it's so arbitrary that the board might make a decision in his favor for a reason he'll never understand. In 2008, the board reviewed 199 clemency applications. It recommended a pardon or reprieve in 33 cases, 10 of which Perry granted. But how or why the board made its recommendations is a mystery.

“This whole thing is about fairness,” says Houston criminal defense attorney Patrick McCann. “Clemency cannot be so random. … Otherwise, it has no meaning.” McCann started pushing for clemency reform after representing Robert Lee Thompson, one of the few death row inmates for whom the board did recommend clemency. Thompson was sentenced to death for his role in the 1996 shooting death of a Houston convenience store clerk. But he did not pull the trigger on the gun that killed the clerk; Thompson’s accomplice, who was sentenced to life in prison, made the fatal shot. The board recommended that Thompson’s sentence be commuted to life, but Perry rejected that decision. Thompson was executed on Nov. 19, 2009.

Though he had a positive experience with the board, McCann says, he is still at a loss to tell anyone else how or why they made a recommendation in his case. “Unfortunately, there’s not a record of any discussion,” McCann says. “Nor is there a formal recommendation with the reasoning behind it.” His experience prompted McCann to push for reform of the clemency process. The board, he says, should be required to meet in public, and the Legislature should issue guidelines for clemency decisions.  

Texas Appleseed, a social justice organization, and the Texas Innocence Network, a group that investigates inmates’ claims of actual innocence, published a study of the state’s clemency process in 2005. The study found that, in comparison to 37 other states that had the death penalty at the time, Texas had “unnecessary obstacles in the paths of those who seek pardon and commutation” that essentially closed the door on clemency to most applicants. Texas is the only death penalty state that does not require the board to meet for clemency decisions, according to the report. Instead, the board’s practice is to send materials to board members across the state who make full-time salaries ranging from about $95,000 to $115,000 for chairwoman Owens. They review the information and then fax in their votes, a process the Fifth Circuit Court of Appeals upheld in 1999 in a lawsuit in which a death-row inmate unsuccessfully sued the state, claiming the clemency process was unconstitutional. Like McCann, the study authors concluded that, to make the process fair, Texas should require the board to conduct open meetings and there should be some criteria for decision-making.

Despite those recommendations and despite reform proposals from lawmakers including state Sen. Rodney Ellis and state Rep. Senfronia Thompson, both Houston Democrats, the process has remained essentially unchanged. Ellis says state leaders are resistant to “bringing fairness and transparency to the process of deciding whether the state should take someone's life.” He co-authored an editorial that appeared last weekend in the Dallas Morning News calling on Perry to intervene in Skinner’s case and allow DNA testing. “Science proved Timothy Cole’s innocence 10 years too late. It threw Cameron Todd Willingham’s case into doubt several years too late,” Ellis wrote, along with Barry Scheck, co-founder and co-director of the Innocence Project, and Cory Session, Cole’s brother. “And it will soon be too late for science to definitively resolve Hank Skinner’s case before he is executed.”

Ellis says he plans to reintroduce measures to reform the Board of Pardons and Paroles during the 2011 legislative session. Under his plan, the board would have to meet in person, by conference call or by videoconference to decide on clemency in capital cases. The attorney representing the inmate and representatives of the victim's family would be allowed to make presentations. The inmate could attend in person or be on the call unless there was an overriding security issue. And, the clemency recommendation and the reason of each board member would be announced publicly.

Steve Hall, director of the Stand Down Texas Project, a group that is seeking a moratorium on the death penalty, says the reforms that advocates and lawmakers are calling for could be made by the board without legislative action. “Thus far, the board has been resistant to doing that,” he says. Because the members are dispersed throughout the state and because thousands of parole cases create an enormous workload for the board, he says, they haven’t been keen to draw additional attention to hot-button death penalty cases like Skinner’s.

Hall says he’s not optimistic that change will come to the clemency process unless a scandal rocks the board. The issue, he says, is just too low a priority for legislators who meet every other year to decide how to run a state with 24 million residents and a $180 billion budget. Until there’s a change, for Skinner and others interested in trying to predict how or why the Texas Board of Pardons and Paroles recommends some inmates get clemency and others get the needle, Hall says their best bet  “is probably a Ouija board.”

[Editor's note: An earlier version of this story incorrectly reported the vote needed to make a clemency recommendation. A clemency recommendation requires a simple majority vote.]