Was the Law of Parties Provision in HB 2267 Scuttled Based on Misinformation?

First published on the Stop Executions blog.

by Scott Cobb

The Law of Parties provision of HB 2267 was taken out of the bill in the Senate Criminal Justice Committee yesterday after Governor Perry threatened to veto it if the bill was sent to him in the same form that it passed the House last Friday. I am concerned based on a couple of quotes in newspaper articles that the Law of Parties provision was scuttled based on misinformation and misunderstanding about the Law of Parties and about HB 2267.

For instance, the Austin American-Statesman has a quote from Williamson County Attorney John Bradley that indicates that he does not understand what the Law of Parties is and how HB 2267 would have affected it. He says in the Austin American-Statesman: "To exempt all defendants in capital cases because they didn’t pull the trigger “is irrational,” said Williamson County District Attorney John Bradley. “Under that reasoning, Hitler, Osama bin Laden and Charles Manson could never get the death penalty. You have to look at the facts of each case … whether their participation merits holding them culpable".

People like Hitler, Manson and Osama bin Laden would not have been prosecuted under Section 7.02(b) of Texas' Law of Parties, which is the section that would have been affected by HB 2267. Furthermore, for those people who are and would continue to be prosecuted under section 7.02 (b) (again not Hitler, Manson or bin Laden), HB 2267 would still hold them culpable, it just would limit the maximum punishment for non-killers convicted solely under that section to life in prison without parole.

HB 2267 said

(b) A defendant who is found guilty in a capital felony case only as a party under Section 7.02(b), Penal Code, may not be sentenced to death, and the state may not seek the death penalty in any case in which the defendant's liability is based solely on that
section.

Bradley's statement is one of the most absurd, irresponsible comments by a legal professional that I have ever heard. It is no wonder that prosecutors were able to get Perry to threaten to veto HB 2267 if they were telling lies like Bradley.

The Law of Parties in section 7.02 (b) says "If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy".

That section, together with Article 37.0711 of the Code of Criminal Procedure, allows the state to prosecute and sentence to death people who have no intent to kill and who in fact do not kill anyone, people like Kenneth Foster, Jr and Jeff Wood.

The Austin American-Statesman has a front page article in today's paper that also contains 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 about murder-for-hire falling under the Law of Parties statute. The article says:

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.

Hiring someone to kill someone else is not a Law of Parties case. Murder for remuneration is itself a capital crime in Texas.

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.

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.

The Statesman is doing a disservice to its readers by publishing misinformation from people like Bradley and Hubbarth. Ignorant misinformation given out by an elected county attorney like Bradley is particularly appalling. 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.

Bradley and Hubbarth made their statements for the Statesman after the action in yesterday's committee meeting, but I am concerned that similar misinformation may have been spread before the committee meeting. In light of the possibility that the Law of Parties provision in HB 2267 was taken out based on a misunderstanding of the bill and of the Law of Parties, I urge senators to have an informed discussion of the Law of Parties when HB 2267 reaches the floor of the senate and to then decide based on actual facts whether the Law of Parties provision should re-attached by amendment to HB 2267.