"GOVERNOR RICK PERRY DID NOT PARDON COLE LAST SESSION, CITING A LACK OF AUTHORITY FROM LAWMAKERS TO PARDON A MAN AFTER HIS DEATH. "THE CONSTITUTIONAL AMENDMENT THAT WOULD GIVE A GOVERNOR THE ABILITY TO GIVE A POSTHUMOUS PARDON WAS ONE OF THOSE [BILLS THAT DIED AT THE END OF SESSION]," SAID PERRY, IN AUGUST OF LAST YEAR. THE COLE FAMILY BELIEVED THAT THE GOVERNOR HAD LEGAL OPTIONS TO GRANT A PARDON."
REPORTER ELISE HU; THE TEXAS TRIBUNE; FAMILY PHOTO OF TIMOTHY COLE;
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PUBLISHER'S NOTE: As the Texas Tribune reported earlier this month, Texas Governor Rock Perry has done an about turn and now says he has the legal authority to grant posthumous pardons. As the Texas Moratorium Network recently noted, "Rick Perry plans to issue a posthumous pardon to Timothy Cole, who died in prison before he could prove his innocence. Now, that Perry has acknowledged and plans to use the power to grant posthumous pardons, the door is open for him or future governors to issue pardons to innocent people already executed, such as Todd Willingham, Carlos De Luna or others, if they are convinced of their innocence." In short, Perry has opened an important door which cannot return lives wrongly taken by the State - but at least can allow them to be remembered as the innocent people they were and ensure that the State will take accountability for its actions. This Blog recently focused on the efforts by the late Ludovic Kennedy and others to help obtain a posthumous pardon for Timothy Evans in the United Kingdom. Further posts on posthumous pardons will follow.
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"A posthumous pardon is possible after all, according to an opinion from Attorney General Greg Abbott's office," the Texas Tribune story by reporter Elise Hu begins, under the heading "AG says posthumous pardons possible.
"This clears the way for the possible post-death pardon of Tim Cole, who was exonerated of a sexual assault conviction in a Travis County court last year, but had died in prison many years prior," the story continues.
"The summary of the AG opinion is below, but the even quicker summary is this: A previous AG opinion said posthumous pardons could not be granted because the person wasn't alive to accept it. But more recent SCOTUS decisions have shifted, so the AG opinion concludes the governor can grant a posthumous pardon.
The Texas Constitution does not expressly address or limit the Governor's authority to grant a posthumous pardon. While a prior attorney general opinion concluded he could not grant a posthumous pardon due to the recipient's inability to accept it, modern United States Supreme Court decisions reject the common-law acceptance requirement that formed the basis of that opinion and the underlying Texas authorities. Given this shift in Supreme Court precedent and the Legislature's apparent recognition of this shift, we believe a Texas court would likely conclude that the Governor may grant a posthumous pardon under current Texas law, so long as all other constitutional requirements are met.
While they are persuasive authority, attorney general opinions are not binding; however, to the extent that the Governor was previously advised in an attorney general opinion that Texas law prohibited him from issuing a posthumous pardon, it was reasonable for him to rely on such advice.
Only those able to prove a concrete injury that can be redressed by the courts will have standing to challenge the Governor's decision to grant a pardon. Texas courts generally refuse to review the Governor's exercise of the pardon power so long as he operates within the constitutional restraints of that power.
We believe a court would likely conclude that the Board of Pardons and Paroles is authorized to recommend that the Governor grant a posthumous pardon.
Governor Rick Perry did not pardon Cole last session, citing a lack of authority from lawmakers to pardon a man after his death.
"The constitutional amendment that would give a governor the ability to give a posthumous pardon was one of those [bills that died at the end of session]," said Perry, in August of last year.
The Cole family believed that the governor had legal options to grant a pardon.
"We don't want to have to wait through another session to start all over again," said Cole's brother, Reginald Kennard.
DNA proved in 2008 it was actually someone else who sexually assaulted a Texas Tech student in Lubbock more than two decades ago, the crime for which Cole was serving time. The victim, whose eyewitness testimony led to Cole's wrongful conviction, said "I really thought I had the right guy."
In February 2009, Cole's name was posthumously cleared by a judge after a trial in Travis County.
The story can be found at:
http://www.texastribune.org/blogs/post/2010/jan/07/tribblog-ag-says-posthumous-pardons-possible/
Harold Levy...hlevy15@gmail.com;
