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Friday, May 22, 2009

Rusty Hubbarth's Misinformation in Austin American-Statesman

The Austin American-Statesman has an article in today's paper about the Law of Parties bill being altered by the Senate Criminal Justice Committee yesterday after Governor Rick Perry threatened to veto the bill if it passed the Senate with a provision to end the death penalty in Law of Parties cases. The article contains some misinformation from Austin lawyer William "Rusty" Hubbarth, vice president of Justice for All. Hubbarth claims that a 1992 murder-for-hire case was a law of parties case, but he is wrong. Hiring someone to kill someone else is not a Law of Parties case. Murder for remuneration is itself a capital crime. Law of Parties cases are very rare. There have been only 3 Law of Parties executions in Texas out of the total of 438 executions, which is less than one percent.

A person who who hires someone to kill another person is charged with capital murder under section 19.03 of the Texas Penal Code, not under Section 7.02 of the Texas Penal Code, which is the Law of Parties section. Both the hiring of the person and the one who actually commits the murder is charged with capital murder and can receive the death penalty.

The Law of Parties is a different concept in which a person can be charged with capital murder if they are participants in another felony, such as robbery, and in the course of that first felony, an accomplice commits a second felony (murder), then anyone who was an accomplice in the first felony (robbery) can be charged with the second felony (murder), because the law says they "should have anticipated" that a murder could occur.

The Statesman is doing a disservice to its readers if it does not correct the misinformation in the article. A newspaper has an obligation to correct false information it gives out, so that its readers can make informed judgments about public policies reported in the news. It is just this sort of false understanding of the Law of Parties that leads some people to oppose ending the death penalty under the Law of Parties without understanding what the Law of Parties actually is. It is a law that allows people who have not killed anyone and who had no intention to kill anyone to be sentenced to death.


Veto threat dooms change in death penalty law
Measure banning execution of people who haven't killed won't advance.
By Mike Ward
AMERICAN-STATESMAN STAFF
Friday, May 22, 2009

Death penalty opponents have long decried a Texas law that allows the state to impose the ultimate punishment — execution — on people who have not killed anyone.

Legislation to change that was working its way toward Gov. Rick Perry's desk Thursday, when its sponsor said a threatened veto forced him to drop the controversial provision that would have exempted participants in capital crimes who did not pull the trigger.

"We wanted that provision to stay in, but the governor's office made it clear they would veto the bill if that went through," said state Sen. Juan "Chuy" Hinojosa, D-McAllen.

Hinojosa amended the legislation to require only separate trials for co-

defendants in capital murder cases in which one or more of the defendants did not kill anyone.

Though he was not satisfied with the change, Hinojosa said, "we're not going to get any progress on this area of law until we get another governor. I realize that, so we do what we can."

Perry's office did not return phone calls Thursday evening.

Austin lawyer William "Rusty" Hubbarth, vice president of Justice for All, a national victim advocacy group based in Houston, applauded the veto threat.

"I congratulate Gov. Perry for showing he has the courage to protect the interests of victims," Hubbarth said.

The problem with the bill, he said, was letting all capital co-defendants off the hook if they didn't pull a trigger.

As proof, he cited a 1992 case in which a husband hired a hit man through Soldier of Fortune magazine to kill his wife; the husband was convicted of premeditated murder and sentenced to death.

As approved by the House last week, the bill would have made a significant change in the state's death-penalty law, a change vehemently opposed by prosecutors and cheered by death-penalty opponents.

Under current law, multiple defendants in a capital murder case can face execution, even though not all caused a death.

Texas has been criticized nationally in past years for cases in which the triggerman cut a deal with police and escaped execution, while a co-defendant who did not kill anyone was executed.

Although other states also hold accomplices responsible for others' crimes under the so-called law of parties, few of those states have a death penalty. None executes as many people as Texas, which has put to death more than 400 people since the state resumed executions in 1982.

Prosecutors in the past have argued that if defendants participate in a crime, even if they stood and watched an accomplice commit murder, they should be held equally accountable — and several have been sentenced to death.

After the disputed wording was deleted Thursday, the bill was passed unanimously by the Senate Criminal Justice Committee, the last stop before the measure goes to the full Senate for a vote.

When the measure passed the House on May 15, its sponsors tagged it the "Kenneth Foster Jr. Act," after a man whose death sentence was commuted to life imprisonment by Perry in 2007.

A former member of a San Antonio crime gang, Foster was sentenced to die as an accessory to the Aug. 25, 1996, slaying of Michael LaHood Jr., a 25-year-old law school student who was gunned down during a botched robbery.

Foster, then 19, drove the getaway car, which was parked 80 feet away.

Foster's impending execution had drawn a flood of protests from around the world, with South African peace activist Desmond Tutu and former President Jimmy Carter among the hundreds who filed written protests to stop the execution — all arguing that Texas was taking the life of a man who had not killed anyone.

In commuting the sentence, Perry noted that Foster was tried, convicted and sentenced alongside the triggerman, Mauriceo Brown. Perry said that could have tainted the jury's decision.

"After carefully considering the facts of this case, along with the recommendation from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster's sentence," Perry said at the time. "I am concerned about Texas law that allowed capital murder defendants to be tried simultaneously, and it is an issue I think the Legislature should examine."

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