Austin Chronicle: Should Have Been Anticipated

Thats title of Jordan Smith's article in the Austin Chronicle about execution of Jeff Wood. There is also a rally planned this weekend to support Jeff Wood in San Antonio, Texas.

Should Have Been Anticipated

Jeffrey Wood

Scheduled for execution Aug. 21: Jeffrey Wood

Jeffrey Wood did not enter the Gold Star Texaco in Kerrville until after he heard the gunshots.

He was sitting in a pickup truck parked outside the gas station – almost a second home to him, his sister Terri Been says, a real hangout where Wood often went to socialize with friends who worked there, including clerk Kris Keeran – when he heard gunfire. He ran inside, where he found his friend Keeran slumped over near the counter, dead from a single .22-caliber round that caught him between his left eye and the bridge of his nose. Holding the gun was another friend, Danny Reneau. Wood was shocked. Reneau pointed the gun at Wood and barked an order for him to grab a video surveillance camera and VCR. Wood was afraid, he later told police, and did as he was told. Reneau removed the store safe and the pair fled to the home of Wood's brother in Devine.

Wood did not fire the fatal shot and did not participate in the robbery that preceded the Jan. 2, 1996, murder. Nonetheless, Wood was sentenced to die, based on the state's "law of parties," also known as the "conspirator liability" statute. The law provides that if two or more people agree to commit one crime but in the process commit another, each person is guilty of the crime committed – if the crime was "one that should have been anticipated." This is a more nebulous form of traditional accomplice liability (aiding and abetting) that requires the state to prove specific, individual culpability. The difference here is in intent and foresight: Accomplice liability requires intent; conspiracy requires only a finding that the crime was foreseeable.

Photo courtesy of The Wood Family

In Wood's case, the state argued that he had planned with Reneau to rob the Texaco and therefore was responsible for Keeran's death. But it isn't at all clear that Wood was planning to rob the store. Wood told police that he'd heard Reneau talking with someone else (the store manager, Been says) about a possible robbery – the place had taken in $17,000 over Christmas, and the pair speculated that a similarly hefty stash could be expected just after New Year's Eve, since the bank holiday would mean the money would not yet have been deposited – but Wood also said he believed the talk was "bullshit in the breeze." (Family members have said that Wood did initially talk about robbing the store, along with Reneau, the store manager, and Keeran, but insisted that Wood, Keeran, and the manager all dismissed the idea.)

Critics have argued that Texas' use of the law of parties unconstitutionally broadens the field of death-eligible defendants; the death penalty, they argue, should be reserved for the most culpable and most heinous crimes. In fact, Texas is the only state that uses a conspiracy statute to make defendants eligible for the death penalty. "To pass constitutional scrutiny," Wood's attorney Scott Sullivan argued on appeal, "a sentencing statute must not only narrow the class of persons eligible for the death penalty, it must also ensure sentencing decisions are based upon an individual inquiry" of culpability. Texas' law of parties fails to do that, he wrote. The state, however, argues that the law of parties is not implicated in a decision to impose death: "The Texas capital murder scheme does not allow an individual to be put to death merely for being a party because the law-of-parties cannot be applied in answering the special issues" that jurors must answer, argued then-Bexar Co. Assistant District Attorney Lucy Cavazos. A death sentence is assessed only if jurors find that a defendant would pose a continuing threat to society and that there is no mitigating evidence that might lessen the defendant's culpability. Yet Cavazos' argument evades the fact that without the law-of-parties, defendants like Wood wouldn't be eligible for death in the first place. The courts have sided with the state.

Wood's case is similar to that of Kenneth Foster, who was sentenced to death for the 1996 murder of Michael LaHood by a companion, based on the Bexar Co. district attorney's use of the conspiracy statute. Foster was scheduled to die last year but was spared when Gov. Rick Perry accepted the recommendation of the Board of Pardons and Paroles and commuted his sentence to life in prison. "I believe the right and just decision is to commute Foster's sentence," he said. Perry did not directly implicate the law of parties in explaining his decision but did raise the issue of culpability, saying he was "concerned" that state law allowed Foster to be tried jointly with triggerman Maurecio Brown.

Given the parallels between the Wood and Foster cases, Wood's supporters question how the state can execute Wood without further damaging the credibility of the Texas death system. (Indeed, Wood's sister, Been, argues that her brother is even less culpable of murder than was Foster.) "There will be a full package going to the governor, and I think you will see a lot of similarities between us and Foster," Sullivan said last week.

Wood's family and supporters also question whether Wood is actually competent to face execution. He was originally found incompetent to stand trial, because he could not adequately work with his attorneys and participate in his defense. During the sentencing phase, District Judge Stephen Ables ruled that Wood would not be allowed to fire his court-appointed lawyers and represent himself. Nonetheless, Wood would not allow his attorneys to present mitigating evidence – including evidence that Wood was abused as a child and had been diagnosed with serious learning disabilities. Moreover, school records show that Wood's maturity was notably retarded – school officials noted that although he looked his age, he behaved like a child, constantly sought approval for actions, and was easily led and influenced by others. The evidence further erodes Wood's culpability, Been argues. "Jeff was just dumb. He's so trusting of people and has to get burned in order to learn a lesson," she says. "He doesn't deserve to die."