Responding to requests for clemency

After years of post-conviction litigation in a death penalty case, the trial court finally sets an execution date. Likely, the death row inmate’s petition for certiorari in his federal writ of habeas corpus is either pending or was recently denied. What’s next?

The application
In most cases, federal habeas counsel1 files a clemency application with the Texas Board of Pardons and Paroles, seeking a recommendation to the governor for a delay of execution (a reprieve) or a commutation of the offender’s death sentence to a sentence of life in prison.2 The clemency application to the board must be filed not later than 21 days prior to the offender’s execution date.3 To calendar the offender’s deadline to submit his clemency request, start with the day before the execution date and count back 21 days. If the 21st day falls on a weekend or state holiday, the deadline extends to the next business day. An offender may supplement or amend his application not later than the 15th calendar day before the scheduled execution.
    The clemency section of the board notifies the district attorney, presiding judge of the court of conviction, county sheriff, and relevant police chief when an offender files a clemency application, specifying the particular relief sought. The notice offers the officials an opportunity to provide a statement of their views regarding the offender’s clemency request. The board currently allows trial officials to respond to a clemency application not later than the 15th calendar day prior to the scheduled execution.4

Preparing to respond
A district attorney who wishes to respond to a clemency request may contact the board’s clemency administrator prior to the offender’s deadline and advise that the DA intends to respond to the clemency application if one is filed. The clemency administrator will inform the caller whether it has received notice yet that a clemency application will be filed.
    Much of the preparation for responding to a clemency application can be done prior to receipt of the notice; this work overlaps with preparation for any last-minute litigation in the case. Preparation may include review of the trial transcript (if the assigned attorney has not previously worked on the case); preparation of a chronology of all state and federal court proceedings and a summary of the issues raised and addressed by the courts; review of the prosecution’s trial and post-conviction files; Internet search for any websites, blogs, publications, or media outlets associated with the offender; review of the inmate’s Texas Department of Criminal Justice classification and medical and mental health files; and contact with the victim’s family.
    Information obtained and maintained by the board for an inmate’s executive clemency file is confidential and privileged.5 The prosecuting attorney, however, may obtain a copy of an offender’s clemency application from the board’s general counsel under the provisions of §508.313 of the Government Code.
    The Administrative Code sets out what an offender must include in an application for a reprieve, including a statement of the offense, appellate history of the case, legal issues raised in the courts, the grounds upon which a reprieve is requested, and, surprisingly, “a brief statement of the effect of the prisoner’s crime upon the family of the victim.”6 The grounds specified in the application may not call upon the board to decide technical questions of law properly presented to a court.7

Be creative!
A clemency response should be written in the form of a letter, not a legal pleading. Although the board members are cognizant of current issues in death penalty litigation, the board may have non-attorney members.8 Draft your arguments accordingly. The gist of the response to a clemency application is that the district attorney opposes executive clemency to the offender in any form, albeit a delay of execution or reduction of his sentence. A clemency response should also briefly describe the offense and respond to the offender’s primary grounds for relief. The whole of the response should reassure the board that carrying out this execution serves to further justice in the case.
    For the assistant district attorney assigned to the case, preparing the clemency response is one of the few prosecutorial tasks that allows for something akin to creative writing. It is the prosecutor’s opportunity—hopefully for the last time—to tell the victim’s story, to tell that story free of the usual legal formalities, and to seek fulfillment of the jury’s verdict.
    A clemency response should include a description of the facts of the case—but keep it brief. This should not be the rendition of the facts set out in the appellate brief. Tell the story as you would to a lay audience, in a less formal manner than in a court filing. There is no need to include record or case citations. A responder is not constrained by the trial judge’s rulings on admissibility or the evidence the parties chose to present at trial and may incorporate reliable facts from sources other than the trial record, such as those contained in investigative reports and witness statements not admitted at trial or information a surviving victim or witness has personally given the DA’s office. The clemency response is an opportunity to do what the prosecution does not always get to do:  provide the State’s unadulterated view of the case, with a little flair where desired. In addition to the facts of the offense, the background portion of the clemency response should include the procedural history of the case and a description of any pending litigation. Again, case citations are not necessary.
    When possible, develop themes in response to the offender’s grounds for relief. Common themes in clemency responses might be: the offender’s lack of remorse or refusal to accept responsibility; the offender is not deserving of mercy; the impact of the offender’s heinous acts on family, witnesses, or surviving victims; the offender’s continuing future dangerousness; or the victim’s family’s position on the scheduled execution. Go beyond the trial record and incorporate information developed or obtained post-trial if available. A post-conviction development representative of the extensive impact of the defendant’s acts might be, for example, that a child survivor, who witnessed his mother being stabbed to death and was injured in the assault, required multiple psychiatric hospitalizations as a teen.
    Frequently an offender will present a legal issue to the board that was argued at trial or raised on appeal or in a writ. If so, advise the board that this legal issue has been addressed and rejected by the courts and does not warrant relief. If the offender presents a legal issue that is currently pending, advise the board of this.
    A common tactic is for the offender to present his alleged mitigating issue, such as a history of severe drug addiction or childhood abuse, and ask for mercy on this basis. If he merely duplicates an issue presented to the jury, explain to the board that the jury heard this evidence but did not find the circumstances sufficiently mitigating to warrant a life sentence; ask the board not to supplant the jury’s verdict and to refuse relief on this basis. If the offender was subject to re-trial for any reason, remind the board that not just one but multiple juries heard this evidence and rejected it. For fabricated or baseless eleventh-hour issues never before raised, emphasize to the board that the offender, in his (for example) 15 years of post-conviction filings, never saw fit to raise this issue.
    The clemency response is an opportunity to include fascinating facts or nuances about the case or the offender that you or your predecessors have encountered over the years. The offender may have made statements about the offense or himself in correspondence, to the media, or on the Internet. A surviving victim may have provided insightful information about the offense or trial that is not included in the formal record of the case. If this information is relevant to the issues being discussed, share them with the board.

Executive Clemency Case Report
As with all writing tasks, it is important to be cognizant of information the audience already possesses about the subject matter. To accomplish this, the DA may obtain the Executive Clemency Case Report, or ECCR, which an institutional parole officer prepares for the board for every offender scheduled for execution. Like a clemency application, the ECCR is confidential pursuant to §508.313 of the Government Code but may be obtained by the prosecuting attorney via a written request to the Board’s General Counsel.9 An institutional parole officer prepares the ECCR for the board, summarizing the case. The sources of information in compiling the ECCR are listed within and include items and information obtained from the prosecution, court records, TDCJ records and contacts, and—one thing the prosecution does not have access to—a recent interview with the offender. ECCRs are extensive and summarize the offender’s personal information; criminal and incarceration history; the capital murder; the offender’s substance abuse history; physical and mental history; social, marital, and family history; the offender’s visitation list; his institutional adjustment; disciplinary violations; the interview and observations by the parole officer; statements by the victim’s family members from the victim information sheet; the offender’s statement regarding the capital murder; and any verbatim statement by the offender addressed to the board and the governor. The ECCR is an invaluable tool in preparing a clemency response. From it, the responder can glean what the board already knows about the offender, what to emphasize, and what gaps to fill, if any.
    The information the offender reveals in the interview may be particularly useful. The clemency response is an opportunity to shed light on statements the defendant makes in his interview and to refute any last-minute misrepresentations or lies. In those instances in which the offender was silent in the pre-trial phase, never testified, has never discussed his case in jail correspondence, and does not currently trumpet his story on the World Wide Web, this may be the first time the DA has ever heard his version of the facts or perhaps his outright denials. If the offender’s description of the offense is false, demonstrates his lack of insight into his actions, or proves his lack of remorse, point this out to the board.
    The responder can develop the presentation of the case or determine the information to emphasize in light of the ECCR’s content. For example, there is no need to provide a detailed recounting of the offender’s criminal history or disciplinary incidents while on death row in the clemency response. Certainly the responder can answer any questions the ECCR poses. Or if the resources relied upon to compile the ECCR do not explain why the offender’s extraneous charges or separate indictments related to the capital murder were dismissed, the responder might explain and reassure the board the dismissals were not related to the offender’s culpability for those additional crimes.
    In addition to the interview conducted by the institutional parole officer, an offender may request an in-person interview with a board member in his clemency applica-tion.10 Only the offender, board member, board staff, and Texas Department of Criminal Justice staff may be present.11 If such an interview occurs, it is documented in an ECCR addendum, which, like the original ECCR, is available to the prosecuting attorney pursuant to written request to the board. During the interview, the offender may provide additional materials to the board to be considered in conjunction with the application.
    The victim’s family members may submit letters to the board opposing the offender’s clemency request. Although the Clemency Section and Victim Services Division of the Texas Department of Criminal Justice coordinate submission of letters by the victims’ families, due to the short turnaround required, the prosecutor may want to inform the family ahead of time of the opportunity to respond. Do not share a copy of the application with the family, however, due to its confidential nature.
    Board members usually vote on an offender’s clemency application at 1:00 p.m. two days before the scheduled execution.12 In response to a request for commutation, the board may only:
    1) recommend to the governor the commutation of the death sentence to a lesser penalty;
    2) not recommend commutation; or
    3) set the matter for a hearing pursuant to title 37, §143.43 of the Administrative Code.13
    In response to a request for a reprieve, the board may only:
    1) recommend to the governor a reprieve from execution;
    2) not recommend a reprieve; or
    3) recess the proceedings without a decision if the governor has granted a reprieve or a court has granted a stay of execution.14
    After the vote occurs, the board will provide the DA, presiding judge, sheriff, and police chief with a notice indicating the result of the vote. The board will include a summary listing the voting members by name and how each member voted.15

Possibility of reprieve ­without a recommendation
Even absent a recommendation from the board for a delay or commutation of sentence, the offender may seek a 30-day reprieve directly from the governor.16 To be available to answer any questions the governor or his staff has about the case, contact the Governor’s Office of the General Counsel and inquire which assistant general counsel is assigned to the case. Ask the assistant general counsel to notify the DA’s office if the offender requests a reprieve, and offer to answer any questions that arise.

Conclusion
A reprieve of execution or commutation of sentence is an act of clemency, or grace, which the governor may grant upon recommendation of the Board of Pardons and Paroles. Without such a recommendation, the governor may still grant an inmate scheduled for execution one 30-day reprieve. Although there is no requirement for a district attorney to respond to an inmate’s request for clemency, a response provides the prosecutor with an opportunity to advise the board why the offender is not deserving of grace and to honor the victim(s) and the jury’s verdict. A DA’s participation in the clemency process is furthermore an informative vehicle through which to learn about the offender’s latest strategies or interpretation of his case—which may foreshadow or outright reveal the claims the offender plans to file in last-minute litigation, including potentially a subsequent writ of habeas corpus. In such an instance, the prosecutor’s work on the clemency response can be applied to the upcoming task of opposing last-minute litigation. Conversely, a clemency application lacking new issues or claims may indicate the offender and his counsel have simply run out of maneuvers.

Endnotes

1 Texas has no state law provision for appointment and payment of clemency counsel. When certain conditions are met, federal habeas counsel is required to represent a state inmate (who is under a sentence of death) in clemency proceedings unless counsel has been released from the case by the federal court. See 18 U.S.C. §3599(e) (2008); Harbison v. Bell, 556 U.S. 180, 183-86 (2009); Gary v. Georgia Diagnostic Prison, 686 F.3d 1261, 1262-63 (11th Cir. 2012). The federal court provides the attorney’s compensation for representation in the clemency proceedings, and counsel may request funding for expert, investigative, or other services reasonably necessary for the representation of the inmate. 18 U.S.C. §3599(f), (g).
2 See Tex. Const. art. IV, §11(b) (granting the governor the power in criminal cases except treason and impeachment, on the written recommendation of a majority of the Board of Pardons and Paroles, to grant reprieves and commutations of punishment); Tex. Crim. Proc. Code art. 48.01(a)  (same); 37 Tex. Admin. Code §§143.41(b) (Tex. Bd. of Pardons & Paroles, Governor’s Reprieve) (granting the governor the power, upon the written recommendation of a majority of the Board, to grant a reprieve in any capital case), 143.43 (Tex. Bd. of Pardons & Paroles, Procedure in Capital Reprieve Cases), 143.51 (Tex. Bd. of Pardons & Paroles, Commutation of Sentence) (granting the governor the power, upon recommendation of the Board, to grant a commutation of sentence), 143.57 (Tex. Bd. of Pardons & Paroles, Commutation of Death Sentence to a Lesser Penalty).
3 37 Tex. Admin. Code §§143.43(a), 143.57(b).
4 Telephone interview with Thanh Nguyen, Clemency Administrator, Board of Pardons & Paroles, General Counsel’s Office (May 2, 2013).
5 See Tex. Gov’t Code §508.313(a)(1).
6 37 Tex. Admin. Code §143.42 (Tex. Bd. of Pardons & Paroles, Reprieve Recommended by the Board).
7 Id.
8 There is no requirement for board members to be licensed attorneys. See Tex. Gov’t Code  §508.032 (listing the requirements for board membership, which do not include a license to practice law).
9 See Tex. Att’y Gen. OR2004-7699, OR2004-7006 (concluding that ECCRs are confidential and not subject to disclosure to the general public under public information statutes).
10 37 Tex. Admin. Code §§143.43(d), (e), 143.57(e), (f).
11 Id. §§143.43(e), 143.57(f).
12 Board Directive 143.300, Tex. Bd. of Pardons & Paroles (Sept. 15, 2009).
13 37 Tex. Admin. Code §143.57(g).
14 Id. §143.43(j).
15 The board consists of seven members. Tex. Gov’t Code §508.031(a).
16 Tex. Const. art. IV, §11(b) (stating the “governor shall have the power to grant one reprieve in any capital case for a period not to exceed thirty (30) days”); Tex. Crim. Proc. Code art. 48.01(a); 37 Tex. Admin. Code §143.41(a).