Thomas Whitaker’s life is in the governor’s hands as the clock ticks toward his Thursday night execution.
Whitaker, 38, is set to die after 6 p.m. for the 2003 murders of his mother and brother in Fort Bend County. But Republican Gov. Greg Abbott could spare him by approving the state parole board’s rare and unanimous recommendation for clemency.
While Abbott weighed his decision, Whitaker met with his father, Kent, for his final scheduled visitation Thursday morning. If Abbott doesn’t stop the execution, Kent Whitaker plans to stand behind a glass panel that peers into the state’s death chamber and watch his son die, according to Keith Hampton, Whitaker’s lawyer.
All seven members of the Texas Board of Pardons and Paroles suggested on Tuesday that Abbott change Whitaker’s death sentence to life in prison based on his clemency petition, which included pleadings for mercy from Kent Whitaker, who was also shot in the 2003 attack, and fellow death row inmates.
It was the first time the board had recommended to change a death sentence since 2009. A Texas governor has not approved a board proposal for clemency since 2007. Nearly 150 Texas executions have taken place since then.
Abbott, a staunch supporter of the death penalty, has until Thursday evening to make a decision. He could accept the board’s recommendation, reject it, or do nothing, which would also allow the execution to proceed, Hampton said.
On Tuesday night, Abbott said the decision deserved serious consideration.
“Any time anybody’s life is at stake, that’s a very serious matter,” Abbott told reporters at a political rally.
Whitaker, 38, was convicted in Fort Bend County for the 2003 murders of his mother, Patricia, and 19-year-old brother, Kevin. He planned the murders of his family with his roommate, Chris Brashear, who shot the three family members after they came home from dinner one evening. Whitaker had planned the murders to get inheritance money.
Whitaker was sentenced to death in 2007, despite pleas for a life sentence from his father, who survived a gunshot wound to the chest in the attack. The prosecutor rejected a guilty plea offer because he said Whitaker wasn’t remorseful and was being manipulative.
The prosecutor, Fred Felcman, now the first assistant district attorney in Fort Bend County, told The Texas Tribune Tuesday that the parole board didn’t take into account Patricia’s family and the other people affected by the murders in its decision. He said the board only listened to Whitaker’s father and shouldn’t have recommended clemency, and he didn’t see why Abbott “should even give it a second thought.”
One juror in Whitaker’s case anonymously told the Houston Chronicle Wednesday that since Whitaker had convinced his roommate to carry out the murders for him, “the only way people are safe is if he’s dead.”
Kent Whitaker has told the parole board and Abbott that he’d lost all of his family except for his son, and pleaded with the state of Texas not to take him away, too.
“There’s a chance for the governor to be tough on crime and still grant me the victim’s right to ask for mercy,” he told reporters at the Capitol Tuesday afternoon, just before the board vote came in.
Death row inmates and former prison guards also sent letters to the parole board, attesting to Whitaker’s good character, saying he was a model prisoner and helped other inmates on death row, according to his petition for clemency.
State Rep. Joe Moody, a Democrat from El Paso who chairs the House Committee on Criminal Jurisprudence, sent a letter to Abbott Thursday saying that he understood the jury’s desire to carry out the ultimate punishment, but asked the governor to grant clemency.
“The board did the hard work of examining how the offender has conducted himself since then and what impact his execution would have on the surviving victim, his father, who’s already lost his wife and other son,” Moody said.
This is the first time Abbott has been forced to make the final decision for a death row inmate facing execution. In his previous job as state attorney general, Abbott portrayed a “tough-on-crime” attitude and regularly fought in court to move death sentences and executions forward.
His predecessor, former Republican Gov. Rick Perry, rejected two clemency recommendations for inmates facing execution and accepted one during his 14 years in office, according to data kept by the Texas Coalition to Abolish the Death Penalty. None of the three were unanimous decisions by the pardons and parole board, like in Whitaker’s case.
Whitaker could avoid execution without Abbott. He has a final appeal pending before the U.S. Supreme Court, which largely focus on the drugs used in Texas executions. And his lawyers could also appeal a Texas Court of Criminal Appeals decision that rejected a challenge of jury instructions in death penalty trials.
If Whitaker loses on all fronts, he will become the fourth man executed in Texas in 2018.