Seven inmates escaped from the John B. Connally prison facility near Kenedy, Texas in December 2000. They became known as the “Texas Seven.”
Eleven days after their escape, the men robbed a sporting goods store in Irving, Texas. Local police were alerted to the robbery in progress. Irving police officer Aubrey Hawkins responded to the call. He was ambushed immediately after arriving at the scene. He was shot 11 times before being run over by the stolen vehicle the men used to flee the scene. Officer Hawkins died from his injuries shortly after being transported to a local hospital. It was a brutal and merciless crime.
Between January 20 and 23, 2001, six of the seven men were recaptured in Colorado. The seventh man committed suicide rather than being taken into custody. All six of the captured men were tried separately, convicted, and sentenced to death.
Between 2008 and 2018, four of those men were executed by lethal injection in the state’s death chamber at Huntsville, Texas. The remaining two men, Patrick Murphy and Randy Halprin, were scheduled for execution in 2019, but received last minute stays of execution—Murphy by a federal district court and Halprin by the Texas Court of Criminal Appeals.
Culpability Through Law of Parties, Felony Murder
Of the seven men, Patrick Murphy was the least culpable in the killing of Officer Hawkins. He remained outside the sporting goods store as a “lookout.” The other six men were either directly or indirectly involved in the killing of Hawkins. Murphy was not aware that the officer had been shot and run over until after the event. Under Texas’s “law of parties,” however, he is considered equally guilty as though he had actually participated in the crime.
The law of parties statute, Texas Penal Code § 7:01(a) provides that “a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both… each party to an offense may be charged with commission of the offense.”
Law of Parties in Death Penalty Cases
Law of parties’ statutes have drawn widespread criticism across the nation by death penalty opponents. The central question is whether a person should be executed for a murder they could not have foreseen, much less participated in.
Eight states since 1980 have eliminated or limited the application of law of parties’ statutes—also known as “felony murder” statutes. California in 2018 greatly reduced the scope of its “felony murder rule” by requiring the prosecution to show “major” participation in the murder or knowledge of a specific intent to kill before the death penalty can be applied.
According to the The Appeal, Texas has executed six men under its law of parties statute since the state resumed executions in 1982—the most recent being the December 2018 execution of Joseph Garcia, another of the Texas Seven escapees whose actual participation in Officer Hawkins murder was never clearly established.
Law Makers Grow Uncomfortable with Law of Parties in Death Penalty Cases
Executing people under the law of parties’ theory has drawn increasing legislative criticism in Texas. Houston’s Rep. Harold Dutton has for the past decade introduced bills that would eliminate this state’s felony murder rule. Dutton’s efforts have garnered some unexpected support from conservative lawmakers who have also become uncomfortable with the practicing of putting individuals to death that have not killed someone.
In a March 28, 2019 article, Texas Tribune’s criminal justice reporter Jolie McCullough explained:
“State Rep. Harold Dutton, D-Houston, for a decade has filed bills to eliminate the death penalty in the law-of-parties instances that hinge on that ‘anticipation’ clause, but they have never made it to a vote on the chamber floor. In 2017, the issue picked up some attention from other lawmakers, including a staunch conservative, after death row inmate Jeff Wood, who was a getaway driver in a planned robbery that became a murder, narrowly avoided execution the year before.
“‘[Wood] may have suspected, he may have anticipated, but he didn’t know,’” said state Rep. Jeff Leach, R-Plano, at the beginning of the 2017 legislative session. ‘You can’t be executing people like that — you just can’t. We can keep them in prison for life, but to execute them is an entirely different conversation.’
“Still, the 2017 bills — authored by two House Democrats — died before going to the floor for a vote. This year, Leach and state Sen. Juan “Chuy” Hinojosa, D-McAllen, have also put their names on similar legislation. The bills have not been scheduled for a committee hearing yet, and although Leach was vocal on the Wood case in 2017, he declined to comment on Murphy’s execution. It’s unclear if a jury found Murphy guilty under the anticipation clause of the law of parties which is targeted by the legislation, or the first section, which includes intent to assist in the crime.”
Prosecutor Oppose Reforms to Eliminate Law of Parties
As unfortunate as it may be, this issue may not gain any meaningful traction in the Texas Legislature until the last two of the Texas Seven, Murphy and Halprin, are put to death. Prosecutors across the state have vigorously opposed any modification, much less elimination, of the law of parties’ statute—and, as McCullough pointed out, they use the Texas Seven case as the primary basis for their opposition.
Still, we agree with the position taken by Murphy’s two attorneys, David Dow and Jeff Newberry, in pleadings seeking reduction of their client’s death sentence:
“Carrying out the execution of Patrick Murphy, who neither fired a shot at Officer Hawkins nor had any reason to know others would do so, would not be proper retaliation but would instead simply be vengeance.”
Punishment grounded solely in vengeance should always be unconstitutional. While we mourn for the victims of crime and sympathize with their families, passion and pain should not be a substitute for fairness and constitutional principles.