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AUSTIN, Texas (AP) — The Texas parole board on Tuesday made a rare recommendation to commute a death sentence, unanimously endorsing a "lesser penalty" for a man set to be executed this week for masterminding the killings of his mother and brother.
Thomas "Bart" Whitaker is scheduled for lethal injection Thursday for the shootings of his mother and brother at their suburban Houston home in 2003. Whitaker's father, Kent, also was shot in the attack but survived. He said he wants his 38-year-old son to live.
The recommendation from the seven-member Board of Pardons and Paroles goes to Republican Gov. Greg Abbott. It's unclear whether Abbott will accept or reject it. The governor appoints the parole board members.
It's only the fourth time since the state resumed executions in 1982 that the parole board has recommended clemency within days of an inmate's scheduled execution. In two of those cases, then-Gov. Rick Perry rejected the board's recommendation and those prisoners are among the 548 executed in Texas, more than any other state.
David Gutierrez, the parole board's presiding officer, said the panel recommended the governor commute Whitaker's sentence "to a lesser penalty." Jurors who convicted him and sentenced him to death in 2007 had only one other option, life imprisonment.
In the clemency petition, Whitaker's attorneys said his execution would "permanently compound" his father's suffering and grief, and compared the case to the biblical story of Cain and Abel, where God sent Cain to "restlessly wander" after killing his brother.
Kent Whitaker has said he's seen "too much killing already," has forgiven his son and believes his son is a changed person.
Whitaker, his son's attorney and supporters awaited the decision in a conference room in the Texas Capitol. As lawyer Keith Hampton read the outcome, Whitaker covered his face with his hand and wept softly. After about 15 seconds, he looked at Hampton and murmured, "Thank you."
"I never, ever believed that we were going to get a unanimous decision in favor," he said as he and Hampton headed immediately across the building to Abbott's ceremonial office — even though the governor wasn't there — to plead with the governor that he honor the board's recommendation.
"The best we were hoping was a 4-3," he said. "This is beyond amazing. I can't tell you."
At his trial, Bart Whitaker said he took "100 percent" responsibility for planning and carrying out the killings. Prosecutors said he hated his parents and hoped to collect an inheritance.
"I think it's the wrong decision and clearly the wrong decision," said Fort Bend County District Attorney John Healey, whose office prosecuted Whitaker and convinced a jury to convict him and send him to death row.
He said Tuesday that he didn't know if he could speak with Abbott before the governor made a decision.
"I don't know if that's part of the allowed protocol," Healey said. "It's a unique situation."
Evidence showed the murder plot included two of Whitaker's friends and was at least Whitaker's third attempt to kill his family. The shooting was made to look like an interrupted burglary at the family's home in Sugar Land, southwest of Houston, and Bart Whitaker was shot in the arm to draw attention away from him.
About six months after the shootings, he disappeared. A year later, he was apprehended in Mexico.
The gunman, Chris Brashear, pleaded guilty in 2007 to a murder charge and was sentenced to life in prison. Another man, Steve Champagne, who drove Brashear from the Whitaker house the night of the shootings, took a 15-year prison term in exchange for testifying at Whitaker's trial.
In 2007, death row inmate Kenneth Foster was spared and his sentence commuted to life. The board had voted 6-1 in favor of a commutation. Perry said Foster and a co-defendant in a fatal robbery in San Antonio should not have been tried together for capital murder. Foster was the getaway driver in the slaying and both he and a partner received death sentences. His co-defendant was executed.
In 2004, Perry overruled the parole board's 5-1 vote favoring clemency and convicted killer Kelsey Patterson was executed. He took the same action in 2009 in the case of death row inmate Robert Lee Thompson, who was executed despite a favorable a 5-2 ruling from the board.
Michael Graczyk reported from Houston.
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