Inside Texas' Angels of Death, Who Refuse Hundreds of Death Row Pleas but May Expedite Daniel Perry Pardon

When Hasmukh Patel was shot to death in his San Antonio convenience store in 2004, it was his son, Mitesh, who identified the body. Two years later, Mitesh sat through the trial of Hasmukh’s killer, Christopher Young. He went on to attend the appeals after Young’s conviction. All through the process he had no doubt what he wanted for his father’s murderer.

“I’d been an advocate for the death penalty for as long as I could remember,” Patel said. “And from the day he killed my dad, I wanted to make sure that Chris died. I was waiting for the day he was executed. I was actually planning on being there to watch him die.”

But as Young’s execution grew near in 2018, Patel had a change of heart. His wife was pregnant with their first child and Patel began to think about Young’s family. “I realized – Chris has a daughter in high school,” Patel said. “And she visits him monthly. And he tells her, ‘Go to school. I’m not here because of ‘the man,’ I’m not here because of the Patel family, I’m here because of me and what I did. Don’t hang out with boys like me, or girls like me. Make something of yourself.’”

Patel set up a meeting with the chairman of the Texas Board of Pardons and Paroles, the obscure state agency that is a death row inmate’s last chance to escape execution, that can – with the approval of the governor – change a sentence from death to life in prison. Patel asked the board to recommend the commutation of Young’s sentence, so that his daughters would not lose their father, as Patel had. He also wanted Young to continue mentoring troubled youth. The board rejected Patel’s request on a 6-0 vote.

“When the execution happened, I didn’t have any change in my feelings of loss for my father,” Patel said. “The only thing I felt was another loss, of what could have been, with what Chris wanted to say to people. I didn’t feel re-victimized, but I felt empathy and pain for his daughters, because now they were victimized. ... It was new grief.”

Patel’s experience was not unusual. The Board of Pardons and Paroles has recommended clemency only five times in the estimated 500 death penalty cases it has considered since the 1980s. Gov. Greg Abbott, who appoints the board members and can fire them at will, has shown no more interest in mercy than the board has, even in the face of national movements for death row inmates with strong claims of innocence, like Rodney Reed and Melissa Lucio.

And yet, when Daniel Perry was convicted of murdering Black Lives Matter protester Garrett Foster on April 7, Abbott ordered the board to recommend a pardon for Perry less than 24 hours after the guilty verdict, before Perry had even been sentenced. Perry, an Army sergeant, had shot Foster to death during a demonstration against police violence in the summer of 2020. At his trial, Perry’s attorneys argued that he fired in self-defense after Foster threatened him with an AK-47 he was legally carrying. Travis County prosecutors responded by showing text messages Perry had written in which he fantasized about killing a protester: “I might have to kill a few people on my way to work, they are rioting outside my apartment complex,” and, “I might go to Dallas to shoot looters,” among them. After two days of deliberation, jurors decided Perry had provoked the confrontation with Foster, invalidating his self-defense claim.

On May 10, Perry was sentenced to 25 years in prison for Foster’s murder, as the prosecution had recommended. That sentence followed the revelation of additional texts and social media posts written by Perry not divulged at his trial because of their explosive nature. They include examples of Perry referring to Black Lives Matter protesters as monkeys and declaring, “It is official, I am a racist.” They also show him attempting to cultivate a relationship with a 16-year-old after searching online for “good chats to meet young girls.”

This material will presumably be added to the evidence that the Board of Pardons and Paroles has been studying since April 10, when it agreed to investigate Perry’s case. We say “presumably” because it’s difficult to know for sure. The board is regarded as the most secretive agency in state government. It doesn’t hold public hearings. It doesn’t explain its decisions. Its members avoid the press.

Two weeks ago, the Chronicle asked Board Chair David Gutiérrez what materials the board was examining, whether it would meet with Garrett Foster’s family, and when its decision might come. We were told to direct our questions by email to an unnamed public information officer. On April 26, we received a reply that answered none of our questions.

“The board will conduct a thorough investigation and provide the information to the board members,” the unsigned statement read. “Due to this being an ongoing investigation, the board will not be making any further comments.”

If the board does choose to recommend a pardon for Perry it will be a unique event. None of the half-dozen attorneys the Chronicle spoke to in compiling this story could summon up any instance in the board’s 100-year history in which it recommended a pardon in a case even vaguely similar to Perry’s. They noted that the judicial process in Perry’s case is not yet complete – he still has not filed an appeal of his sentence, something he will almost certainly do.

Despite the violation of judicial norms represented by Abbott’s request, most believe the board will make the recommendation. Bill Habern is among them. Habern, now in his 80s, is legendary among Texas parole attorneys. His firm has worked on parole and prison administration cases for over 45 years. He has deep respect for its current members but doesn’t think they’ll refuse Abbott.

“The governor appointed them and the governor can fire them, and I think that pretty well determines what’s going to happen,” Habern said. “If the governor didn’t have the power to terminate, then my view of things might be different. But I think the governor is going to get his way.”

“Extremely Poor and Certainly Minimal”

Roger Nichols is another parole attorney who knows the board intimately. He served as its general counsel in the 1990s and has practiced before it for over 20 years. Nichols reminded us that the board members have a heavy workload and do not spend much time investigating pardons for convicted murderers. Most of their work concerns paroles. In 2021, the board made decisions in 65,000 cases, choosing whether to release inmates from state prison, and with what conditions, or whether they should be put back in prison for violating parole. Assuming the members work 40 hours a week, the 65,000 cases translate to one decision by the board every 2 minutes.

Nichols also cautioned against a knee-jerk reaction in appraising the board members’ handling of clemency requests. “There’s nothing nefarious going on,” Nichols said. “The people on the board are good and decent and honorable people. But they are appointed by a governor who has an agenda and they are participants in that agenda. They are not reluctant to vote clemency, they are simply following their own personal and political beliefs that got them into the offices that they hold.”

The seven board members work from towns near large prison complexes – Huntsville, Palestine, Angleton, Amarillo, and Gatesville – along with Austin and San Antonio. Almost all have backgrounds in law enforcement. Five are former sheriffs, deputies, or parole officers. The board chair, Gutiérrez, was, for 11 years, the sheriff of one of the most conservative areas in the nation – Lubbock County. Carmella Jones, Elodia Brito, and Brian Long worked as sheriffs or deputy sheriffs. Marsha Moberley was a parole officer and a case manager at the notorious Texas Youth Commission. Linda Molina was a prosecutor. The only member without a criminal justice background is Ed Robertson, a career bureaucrat who has worked alongside Abbott for 20 years in one capacity or another.

The board’s tilt toward law enforcement is controversial among death penalty opponents. In 2018, death row inmate Joseph Garcia filed a complaint as his execution neared, saying the board “does not present an impartial decision-maker” and alleging that its composition violates state law because its members are not representative of the general public. The complaint was rejected and Garcia was executed five days after making it.

This session, state Rep. Alma Allen introduced a bill, House Bill 2718, that would allow only three of the board members to come from law enforcement. The bill would require its composition to reflect the racial makeup of Texas prisons – one-third Black, one-third Hispanic, one-third white – and for half of its members be female. It would also require at least one member to have a relative who is, or was, incarcerated. HB 2718 is dead for this session.

Another criticism of the board is how it performs its work. Unlike other state agencies, it is not required to hold public meetings. It provides no guidelines for clemency applications. Those requesting clemency don’t have a right to appear before the board. Their family members and attorneys are not permitted to appear before the board either, but may request a meeting with the board chair. The board members vote individually, without discussion – by fax, according to our sources. They provide no explanation of their votes.

The secretive and disjointed elements of the board’s process led to a lawsuit in 1999 – Faulder v. Texas Board of Pardons and Paroles – brought by Joseph Stanley Faulder, a Canadian citizen. Faulder was imprisoned on Texas’ death row for 15 years before prison officials notified the Canadian Consulate that they intended to kill him. When the Canadians learned this, they accused Texas of violating the international Vienna Convention on Consular Relations. Then-U.S. Secretary of State Madeleine Albright urged the board to recommend a commutation of Faulder’s sentence. The board refused.

In his suit, Faulder accused the board of violating due process by holding its meetings in private, voting by fax, and refusing to record its votes or state the reasons for them. Faulder’s attorneys presented testimony demonstrating that the members did not fully read the thick files supplied to them laying out the arguments for and against clemency. They were unaware they’d been sent hundreds of letters supporting clemency for Faulder, including Albright’s. Board members testified that before rejecting clemency they simply confirmed that the prisoners had been convicted of their crimes and that the convictions had not been overturned – things that are necessary prerequisites to applying for clemency in the first place.

Faulder’s suit succeeded only in delaying his execution. Judge Sam Sparks ruled that the board was operating legally, but referred to its process as “extremely poor and certainly minimal,” adding that “a flip of the coin would be more merciful than these votes.” Sparks offered a thought on why the board functions as it does: “Administratively, the goal is more to protect the secrecy and autonomy of the system rather than carrying out an efficient, legally sound system.”

Death penalty opponents say nothing about the board’s process has changed in the 24 years since Faulder. They continue to suspect that its members don’t actually read the clemency applications they receive. They say even Oklahoma has a fairer system. Oklahoma requires its board to conduct open hearings on clemency applications. Prisoners have a right to address the board for 20 minutes. Their family members and attorneys can address the board for 40 minutes. Victims are allowed to address the board as well. The members vote publicly before the conclusion of the hearing. (Oklahoma has granted clemency four times in approximately 100 scheduled executions since 1990, according to the Death Penalty Information Center.)

Again, legislation has been proposed to reform the Texas board’s practices. State Rep. Joe Moody reintroduced a bill this session – HB 156 – that would require the board to meet in person or by phone or video and hear testimony from inmates’ attorneys and family members. It would encourage the board to hold clemency hearings at the prison where an inmate is housed and would allow the inmate to appear before the board. After deliberating, the board members would be required to publicly announce their decisions and the reasons for them. HB 156 is in the Senate now, but, like Allen’s bill to change the board’s membership, it’s expected to die this session.

The Time Before Moses

Last spring, Moody made a personal appeal to the Board of Pardons and Paroles, trying to save the life of Melissa Lucio, a mother of 12 who had been scheduled for execution on April 27, 2022. Eighty-three of Moody’s House colleagues joined him to ask the board to stop Lucio’s execution so a court could examine her claims of innocence.

Lucio has been on death row since 2008, convicted of murdering her infant daughter, Mariah. She denied killing Mariah over 100 times during a five-hour interrogation on the night of her child’s death but finally offered an exhausted confession, saying, “I guess I did it.” The unconvincing confession, along with equally suspect forensic evidence, was enough to convict her. Lucio’s supporters say the confession was coerced and Mariah’s death was an accident.

Moody, one of the House’s most respected members, fought passionately for Lucio. “It is easy to dismiss people like Melissa Lucio,” he told reporters that April. “In fact, the system is set up for us to forget her and treat her as less than human. That’s the way it’s been set up, for years and years ... [W]e think of those people as less than human and we throw them away.”

The board is part of the system to which Moody referred. Still, he and the other representatives treated its members with respect in their letter. “We appreciate how seriously you take your unique responsibility by approaching every execution with the utmost care and caution so that Texas never executes someone for a crime they did not commit,” the letter read. “That is why we are confident that you will come to the same conclusion we have: that the State of Texas cannot, in good faith, execute Ms. Lucio next month.”

Their confidence, genuine or not, was misplaced. Lucio came within two days of being executed before the Texas Court of Criminal Appeals stepped in on April 25 to order a look at the new evidence. That process is ongoing.

Moody and the representatives concluded their letter by drawing comparisons between Lucio’s case and that of Thomas “Bart” Whitaker, one of the five death row inmates for whom the board has recommended clemency. In both cases, the victims of the crime – the families of those murdered – begged the board to commute the sentence of the person scheduled for execution.

Whitaker’s attorney, Keith Hampton, holds the distinction of being the only attorney to have twice convinced the Board of Pardons and Paroles to recommend clemency – once for Bart Whitaker and once for Kenneth Foster. Foster came within six hours of being executed for driving the getaway car during the 1996 murder of Michael LaHood Jr., which Foster said he had no knowledge was about to occur. Whitaker came within one hour of being killed for arranging the murders of his mother and brother – and the attempted murder of his father, Kent – in 2003.

Hampton explained how he crafted Foster’s appeal. “You look for something that is extraordinary in the case, and I happened to find the thing that resonated with the board. What I said was, ‘The guy who actually committed the murder has been executed. Kenneth Foster has never killed anybody. To have him executed would mean that we would be taking two lives for one life, and the Old Testament says a life for a life. So if we did that, it would take us back to the time before Moses.’

“It was a straight-up, in-your-face, religious argument. And I will say this: One of the things I do not do, if I make a religious argument and I have Baptists in front of me, is make it about Jesus. You don’t quote from Matthew, Mark, Luke, or John. That won’t work. You make an Old Testament argument. That’s the only way you’re going to get through.”

In the case of Whitaker, an upper-class white man who paid to have his entire family killed, Hampton amplified the message that Bart’s father, Kent, had made – that he had forgiven his son and did not want to be hurt again by watching him die. “Again, I wrote, essentially, a sermon,” Hampton said. “It was about the circumstances of the case and I expressed it from the heart: ‘Hey, we don’t really care about Bart, but for God sakes, don’t do this to Kent!’ And that’s exactly how I actually felt. ‘Do not make this man watch his son get executed.’”

The board’s recommendation of clemency for Whitaker was, of course, an outlier. It was six months later that the board had the opportunity to honor the wishes of Mitesh Patel when he asked them to spare the life of his father’s murderer, Chris Young. Patel remembered the experience of meeting with Board Chair Gutiérrez. “He really made me feel like I was wrong for being there, asking for clemency,” Patel said. “Gutiérrez even said, ‘We’ve heard that a couple of actors and advocates have reached out to you’ – kind of insinuating that I was going to be part of some film or get some kind of financial benefit.”

Will They Go Through With It?

Clemency exists for two reasons: to right judicial wrongs and consider things that have nothing to do with guilt and innocence, like the wishes of victims or a condemned person’s reformation while behind bars.

It’s not a stretch to say that many of the 64 people executed during Abbott’s time as governor could have had their sentences commuted for these reasons. Some – John Balentine, Travis Runnels, and Robert Sparks, among many others – had ineffective lawyers and unfair trials. Others – John Ramirez, Quintin Jones, Billy Joe Wardlow – had reformed while on death row. Some inmates with legitimate claims of innocence have not received clemency – Melissa Lucio, Rodney Reed, and Larry Swearingen. Others with claims of mental illness and intellectual disability have not received it either.

Daniel Perry, who isn’t facing the death penalty, does not fall into any of these categories. Perry had good lawyers. He is considered to have received a fair trial. He can’t be described as “reformed.” The family of his victim, Garrett Foster, has not asked that he be pardoned – in fact, they have spoken against it.

Gary Cohen, a parole attorney who has practiced before the board for 35 years, said that in normal circumstances its members would never consider a pardon for Perry. “I know them all very well,” Cohen said. “They’re people of high morality and integrity, and they take their jobs very, very seriously. And I find it offensive that the governor, in his arrogance, directed them to do something as if they were his little toy soldiers. I find that offensive to the board. I find that offensive to the rule of law. I find it offensive to the family of the victim.”

Judge Cliff Brown referenced the controversy in his May 10 sentence of Perry. “I typically don’t give lengthy remarks, or any remarks at all, at final sentencing,” the judge said, defending the jurors whose decision Abbott has promised to replace. “But in this instance, I feel obliged to speak for one reason and one reason only – and that is on behalf of the fourteen citizens who served as jurors or alternates.” Brown went on to praise the jurors for spending two weeks of their lives to make certain that Perry got a fair trial. “And in this case, that’s exactly what Mr. Perry got: a fair and impartial trial,” Brown said. “And the hard work, the service, and the sacrifice of this jury deserves our honor and it deserves to be respected.”

Cohen is not convinced the board will recommend a pardon for Perry, especially after the damage done to his reputation by the April 12 release of texts and social media posts in which he declared himself a racist, referred to the protesters as “monkeys flinging their shit,” expressed a desire to kill Muslims, and attempted to establish a relationship with a 16-year-old girl. These posts and texts will be hard for the board to ignore, Cohen said. But so are the facts that Perry still has not formally appealed his case and has no prison record to review.

“I think the board is gonna slow walk this and take its time – and that’s fine, it’s a deliberative process,” Cohen said. “But the board is showing a whole lot more integrity by engaging in deliberation than Abbott did. And I don’t think the governor really wants that case to come to him now, given all the backlash from the public. ... I think Abbott realized way too late, after he opened his mouth, that he was stepping into a political firestorm. It’s a no-win situation for him, a classic example of the dog chasing after the truck. What the hell is he going to do after he catches it?”