Judge Elsa Alcala cut to the chase of this important issue in her published concurring opinion. Before I get to Judge Alcala's opinion, some knowledge of the law surrounding the death penalty and non-triggermen is required. According to the Supreme Court of the United States (SCOTUS), a defendant is eligible for the death penalty even if they themselves did not kill. Instead the inquiry is whether there is evidence of a sufficient level of culpability in the killing, even if carried out by another.
Defining "sufficient level of culpability" has always been the legal bother.
Two cases from SCOTUS attempt to define this area. First, Edmund v. Florida, which seemed to limit the death penalty to those who it was proved had intent to kill. This bright line seemed to be the standard until SCOTUS decided Tison v. Arizona, which held the death penalty does not violate the 8th Amendment, even if the defendant lacked specific intent to kill, so long as it was proved the defendant acted with reckless indifference to human life and was substantially involved in a violent felony under circumstances likely to result in the loss of innocent human life.
One problems with this Tison standard? In application it has the legal consistency of jello - it can mean almost anything. In death decisions, inconsistency means arbitrary and capricious results.
But I digress.
Judge Alcala's concurring opinion accepts Tison, but raises the question of whether Texas' capital scheme is nevertheless inconsistent with it. The death penalty necessarily requires as a pre-condition conviction of a capital offense. The problem (as Judge Alcala has noted in prior opinions) is there are a literally hundreds of ways a Defendant can be convicted of Capital Murder in Texas - supposedly reserved for the worst of the worst. Many of these ways include conviction under the Texas criminal law of parties. A conviction under the law of parties requires less than necessary to be death penalty eligible under Tison. To convict in Texas, it is only required that the non-killing defendant should have anticipated death would have resulted from a conspiracy to commit the underlying crime which their confederate's separate act of murder aggravates to Capital Murder.
As I have previously blogged, the criminal party liability theory necessary for conviction for Capital Murder (or any other penal offense) does not even have to be unanimous.
This was an issue in Wood's habeas application (minus the unanimity issue) yet will not be remanded for consideration under the unpublished per curium decision. Judge Alcala thought it should, hence her published concurring opinion to grant habeas relief for Wood. She wanted it known that there are systemic problems in the criminal law of parties as it applies to the Texas Capital Punishment scheme:
The guilt-innocence jury instructions permitted the jury to convict [Wood] of capital murder...if he acted with the intent to commit robbery and another person was killed as a result of that robbery under circumstances that showed that applicant should have anticipated that a death would result, even if he had no intent for a death to occur. The jury, therefore, may well have convicted of capital murder even if it believed that his sole intent was to rob the victim and that he should have anticipated, not that he actually did anticipate, the death of the victim by his co-defendant. Because the guilt-phase instructions permitted him to be found guilty of capital murder for a death that he may not have actually anticipated, applicant is correct that these instructions would have failed to comply with the requirement of Tison that the defendant exhibit at least reckless indifference to human life, coupled with major participation in a felony offense. (citation omitted) (emphasis added).So Jeff Wood's execution is off, and with it the issue of when, if ever, an individual who participated but did not kill should be death penalty eligible has receded back into the shadows. The issue will rise again, like a Phoenix, the next time arises a party head is on the block.
Oh, by the way, Presiding Judge Keller and Judge Meyers dissented from the granting of Wood's Application. No opinion on either dissent.
The next date with the Texas execution chamber belongs to Renaldo Ruiz on Wednesday, August 31, 2016.