HOUSTON (CN) – A black death-row inmate set to die Tuesday night claims that racism led the Texas Board of Pardons and Paroles to vote against sparing his life, and now a federal judge is considering whether to postpone the execution.
Christopher Anthony Young, 34, fatally shot and robbed Hashmukh Patel in November 2004 at Patel’s corner store in San Antonio. Surveillance cameras recorded the shooting and a Bexar County jury sentenced Young to death in March 2006.
Young has exhausted his state and federal habeas appeals. But in a last-gasp effort to get his sentenced reduced to life in prison, he has seized on a mercy decision the Texas parole board made in the case of white inmate Thomas Whitaker.
In a bid to collect life insurance money, Whitaker, 38, had hired his roommate to shoot his family as they returned to their suburban Houston home in December 2003.
His mother and brother were killed, but his father Kent survived a gunshot to the chest and asked the parole board and governor to spare the last member of his immediate family.
Moved by the pleas of Kent Whitaker, Texas Governor Greg Abbott granted Thomas Whitaker clemency after the board recommended it with a 7-0 vote.
The son of Young’s victim, Mitesh Patel, is also urging Texas not to execute Young. Patel has said in media interviews he does not want Young’s two young daughters to grow up without a father, and he believes Young can mentor troubled kids and prevent them from going to prison.
Young has reportedly been a positive influence on three of his family members since he received his death sentence, teaching them to use his mistakes to understand the importance of considering the consequences of their actions.
Nonetheless, six of the seven members of the Texas Board of Pardons and Paroles unanimously voted Friday not to recommend clemency for Young. One member abstained because she had not reviewed materials Young submitted for his clemency application.
Young promptly sued the parole board members who voted against him on Friday afternoon in Houston federal court, alleging they had violated his 14th Amendment right to not be discriminated against on the basis of his race.
“Whitaker is white, and his victims were white; Young is black, and his victim was South Asian. The members of the board do not announce reasons for their decisions, but the facts here speak for themselves,” the lawsuit states.
U.S. District Judge Keith Ellison on Monday heard arguments from Young’s attorneys and Texas on his motion to stay his execution.
The state argued in court filings and at the hearing that Whitaker was more deserving of clemency than Young because Whitaker was not the trigger man. Ellison disagreed.
“The fact that Whitaker recruited people and was a ring leader, in sentencing that calls for an enhancement, that calls for a tougher penalty,” he said. “Young’s crime does seem to be impetuous.”
Ellison did, however, question Young’s claim that he did not know he had killed Patel until police told him.
“That’s hard to believe. He shot him in the chest,” the judge said.
“He believes it was a ricochet,” said Young’s attorney David Dow, a University of Houston law professor and experienced defender of death-row inmates.
Dow told Ellison the board’s track record on similar cases since 2000 points to underlying racism.
“There have been six people in the 21st century, that I’m aware of, where the family member of the murder victim asked the Texas Board of Pardons and Paroles to commute the sentence of the person who was convicted of the murder,” Dow said in his opening statement for the one-hour hearing. “And of those six, three are black, two are Hispanic and one is white. Only in the case of the white guy [Whitaker] did they vote to recommend commutation.”
Texas Assistant Attorney General Stephen Hoffman countered that Fifth Circuit and U.S. Supreme Court precedent have established that clemency is the sole realm of the executive branch, and not the business of the courts.
Besides, Hoffman said, if Ellison did grant a stay he would essentially be calling the six board members who voted against Young’s clemency petition liars because their voting forms and the board’s policies contain a disclaimer that states they do not take race into account.
“Racial animus is not the kind of thing most people openly say they harbor,” Ellison said.
Ellison, a Bill Clinton appointee, asked Hoffman about the racial background of the board members.
“We don’t know that,” Hoffman said, adding that Texas had not had enough time to prepare for the hearing.
“It seems like we should gather a few facts before we kill this person,” Ellison said.
Dow urged Ellison to let him depose the board members under oath to find out why they voted against commuting Young’s sentence.
“Would the Fifth Circuit allow that?” asked Ellison, peering over his glasses at Dow.
“You tell me, judge,” Dow said.
“That’s the problem,” Ellison said.
To win a stay of execution, a death-row inmate, like a litigant lobbying for a preliminary injunction, must make a strong showing that he or she will likely succeed on the merits. Ellison also found that standard problematic for Young.
“My deepest concern is likelihood of success on the merits. The case does trouble me. But that is an incredibly high hurdle and I do not think you can meet that,” he told Dow.
Despite his misgiving about Young’s arguments, Ellison indicated he is leaning toward putting off Young’s execution.
“I think each side could take a deep breath and put this off for a few days,” he said.
He took the matter to his chambers. Dow said he expects Ellison will come back with a ruling late Monday.