Federal judge delays execution of “Texas Seven” prisoner over claims of religious discrimination

^{Editor's note: This story was updated Nov. 12 after a federal appeals court upheld the delay of Murphy's execution.}

Patrick Murphy's execution was again halted Nov. 7 because Texas death row inmates' final access to spiritual advisors of their faith differs for Christians and Buddhists.

Five days later on Nov. 12, the U.S. 5th Circuit Court of Appeals upheld the federal district judge's order to stay Murphy's execution, rejecting an appeal from the Texas Department of Criminal Justice.

Murphy, a 58-year-old Buddhist, is one of two surviving members of the infamous "Texas Seven," a group of escaped prisoners who committed multiple robberies and killed a police officer near Dallas in 2000 during more than a month on the run. Four others have already been executed, one killed himself when police caught up to them in Colorado, and one other remains on death row with Murphy.

In March, the U.S. Supreme Court took the rare step of stopping Murphy's execution hours after it was originally scheduled to begin. Murphy had argued the Texas Department of Criminal Justice violated his religious rights by not allowing a Buddhist chaplain into the execution chamber with him. The department only allowed prison employees in the death chamber, and only Christian and Muslim clerics are employed with the state. Often, a Christian advisor would be in the chamber with the prisoner set to die, reading quietly from the Bible with one hand on the inmate's leg as lethal drugs were injected.

"As this Court has repeatedly held, governmental discrimination against religion — in particular, discrimination against religious persons, religious organizations, and religious speech — violates the Constitution," Justice Brett Kavanaugh wrote in a concurring opinion at the time.

In response, the department changed its policy to disallow spiritual advisors in the execution chamber, regardless of their religion. The state then set a new execution date for Nov. 13.

Murphy then went back to federal court, now arguing that the state's pre-execution procedure still discriminates against Buddhists. According to the Nov. 7 court ruling, all prisoners have access to their spiritual advisor in the 2.5 days before the execution. On the day they are scheduled to die, however, they can only meet with religious advisors not employed by TDCJ between 3 and 4 p.m. Executions are scheduled to begin after 6 p.m., but there are often delays into the evening. Advisors employed by TDCJ, however, are not limited to that one-hour window in the afternoon and "appear to have access to an inmate until the minute he enters the execution chamber," the district court ruling states. All of TDCJ's chaplains currently authorized to be with inmates just before their execution are Christian.

TDCJ argued that the protocol doesn't favor one religion over another, because their chaplains will listen to, help and be a "calming presence" for all inmates regardless of their religious affiliation, the Nov. 7 court order states. They said TDCJ chaplains are encouraged to learn about many religions and may pray with an inmate in his or her faith. But the three Christian chaplains authorized now said they either wouldn't or were not sure if they would engage in Buddhist chants with an inmate, according to the order.

"Because Murphy believes he can be reborn in the Pure Land and work towards enlightenment only if he is able to remain focused on Buddha while dying, and that being able to chant with his spiritual advisor in the execution chamber would greatly assist him in maintaining this focus, TDCJ’s newly hostile policy violates Murphy’s First Amendment rights," wrote Murphy's attorney, David Dow.

U.S. District Judge George Hanks Jr. said in his stay Nov. 7 that Murphy had demonstrated valid concerns about TDCJ's execution policy.

"The concerns raised by the amended complaint’s focus on the pre-execution procedure are as compelling as those in the original complaint," he wrote. "If Murphy were Christian, he would have the benefit of faith-specific spiritual support until he entered the execution chamber; as a Buddhist he is denied that benefit."

With the stay of execution, Hanks said the court will "explore and resolve serious factual concerns about the balance between Murphy’s religious rights and the prison’s valid concerns for security."

Murphy was the lookout in the robbery-turned-murder that landed him on death row.

On Christmas Eve in 2000, Murphy remained in the car in front of an Irving sporting goods store, listening to a police scanner while the other six men went inside to rob it, according to court records. He and another escapee later said that Murphy used a two-way radio to warn the others to flee when he heard that police were on their way. As 31-year-old Irving police officer Aubrey Hawkins began to drive to the back of the store where the other robbers were, Murphy left the scene on the instruction of the group’s leader.

He said he didn’t find out the other men had shot Hawkins 11 times and run over him in a stolen car until the group reunited later.

Under Texas law, Murphy is just as culpable as the men who fired their weapons at Hawkins because he was participating in the robbery, and a jury determined that either Murphy was acting with the intent to help in the crime, or, even if he had no intent to kill anyone, the murder “should have been anticipated as a result” of the robbery. To be sentenced to death, the jury must have agreed that Murphy at least anticipated the death. The statute is part of a controversial law commonly referred to as the “law of parties,” under which accomplices and triggermen are treated alike.

Murphy's execution is the 11th in Texas this year to be stayed or withdrawn, including his earlier March execution date, according to the Death Penalty Information Center. Eight men have been executed in the state.