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Request For Commutation Whitaker
Request For Commutation Whitaker
Respectfully submitted by
penalty is submitted pursuant to Texas Administrative Code, title 37, part 5, chapter
Thomas Bartlett Whitaker was convicted in Fort Bend County for the capital
murders of Patricia Whitaker and Kevin Whitaker. This Request for Commutation
of Death Sentence to a Lesser Penalty is filed more than 21 days from the date of the
scheduled execution. Counsel for Mr. Whitaker requests an interview with a member
Counsel for Mr. Whitaker waives any and all objections, real or potential, to
any communication this Board and/or its agents may wish to instigate with Mr.
Whitaker at any time or date. Undersigned counsel welcomes anyone and everyone
Kent Whitaker is Thomas’ father. Together with his wife, Patricia, and his son,
Kevin, Kent was shot. Patricia and Kevin died. Kent survived and desperately seeks
This case is unique. Kent Whitaker was almost murdered during the same
ambush that took the life of Kent’s wife, Patricia, and son, Kevin. He survived to
learn that the person who was behind his attempted murder and the murders of Tricia
There is only one person on Earth who is intimate with the murderous attack,
the lives and deaths of the other victims, and the life of Thomas Whitaker – Mr.
Whitaker’s father, Kent. Kent was there. He speaks to clemency with a moral force
and detail of experience that no district attorney or judge or anyone else can possess.
For the rest of us, the case against commutation to a life sentence seems clear.
moral question rendered far more complex by the unique circumstances of this case.
Imagine two people in your family who you love most. Now, imagine one of
them murders the other. There must be punishment. But would you prefer
Kent lived the assassinations. He watched his son, Kevin, walk into the house,
heard the first and fatal shot, and saw his son’s fallen body in their darkened home.
He heard Tricia’s last, wet coughs as Kent himself lay dying from his own gunshot
nearly six inches from his heart. He also later experienced the revelation that his own
son was behind the killing of his beloved wife and younger son and his own
attempted murder. Kent’s anguish and tribulations are beyond the ken of our
imagination.
The moral choice now before each member of this Board is a diminished and
distant version of the deeply personal choice Kent Whitaker faced. You are asked:
Is clemency warranted where execution might be justice for a wicked crime, yet
would also permanently compound the suffering and grief of the remaining victim?
Kent looked to God. He found the answer early in his tragedy, as he has
written. While lying in his hospital bed, Kent considered whether he should slip into
bitterness and despair. His faith rescued him from that fate.
We know from the Bible that God’s first decision regarding humankind was
to expel Adam and Eve from the Garden of Eden. God’s third decision should be just
as instructive. God let humanity spring forth from Adam and Eve. But in the face of
the first murder, God set an example. One of Adam’s sons – Cain – killed Adam’s
The Bible does not detail Adam’s grief or shock or bewilderment about what
should be done. Like, Adam, we cannot know Eve’s judgment. But we do know that
as God’s answer to her grief. While the details are hidden from us, we do know what
God did in the face of it, which, perhaps, is all we need to know.
God did not forgive Cain. God did not kill Cain. God marked Cain for his
crime, as well as for Cain’s own protection, and sent him into oblivion.
This Board has the power to recommend the same fate for Thomas “Bart”
not forgive Bart Whitaker. We do not execute Bart Whitaker. We will instead mark
him to wander his own mind within the oblivion of his own cell. And this
punishment will continue until God decides otherwise. We should mark him, like
Cain, as “Thomas Whitaker” for reasons that will become very clear.
When Kent Whitaker, in his hour of greatest tragedy, sought the answer to his
moral dilemma, he found two telling stories in the Bible, one found in the Old
Testament, the other in the Gospel. Both are consistent with God’s decision to spare
Adam’s murderous son, Cain. They also help explain Kent Whitaker’s fervent effort
King David’s son, Absalom, killed the king’s other son, Amnon. Absalom then
took up arms against his own father and despite King David’s orders to not kill him,
Absalom was killed in battle. King David wept: “O my son Absalom, my son, my son
Jesus told the story of the prodigal son. The son demanded his inheritance
from his father, then left and squandered all of it. That son then found himself hungry
and poor and miserable. When he returned home repentant, his father unhesitatingly
welcomed him home. His other son was puzzled by his father’s reaction. But the
father explained that for his sins, this son “was dead,” but his repentance had
None of us can follow Kent Whitaker’s journey of horror, sorrow, shock and
loss. It is territory we can barely explore. But Kent has emerged from the deep forest
of his despair. He deserves to be listened to, and his viewpoint fairly considered.
The District Attorney did not listen. Kent Whitaker’s plea for life sentences
was disregarded. No one in either family sought the execution of Kent Whitaker’s
son. The prosecution coldly ignored the sentiments of these victims and survivors.
The Fort Bend District Attorney spared the actual killer, Christopher Brashear.
He did the same for the accomplice, Steven Champagne. His office was preparing to
Bart Whitaker’s attorneys, Dan Cogdell and James Ardoin, ran into the lead
prosecutor in the case, Fred Felcman at a local store. According to Mr. Cogdell and
Mr. Ardoin, Mr. Felcman stated that he would consider a life sentence if Bart
to Mr. Felcman. According to Mr. Ardoin, Mr. Felcman then rejected the proffer
because it failed to reflect any expressions of remorse. The outraged prosecutor then
used the confession at trial to secure a death sentence. Whitaker v. Stephens, No.
H-11-CV-2467, 2015 U.S. Dist. LEXIS 35434, at 8-9 (S.D. Tex. Mar. 17, 2015).
during the prosecutor’s use of the proffer during his cross-examination of Bart
Whitaker:
Q. It wasn’t my suggestion.
A. I’m sorry.
Q. Your father poured his heart out to me, and I saw no remorse on your
part.
A. I didn’t actually write that. The one that I wrote was in my cell, and
it did have remorse. It was really how I felt at the time, and I didn’t —
I was under the impression that I was going to be giving that copy to Mr.
Q. The proffer that presented — that you didn’t even have anything to
do with. You understand how insulting that is to somebody that has to
listen to the father plea, and I see no remorse on the Defendant?
A. Yes, extremely insulting. I knew it would be, if it had been done that
way. I wouldn’t have agreed to that at all. I was very upset about that.
Whitaker v. Stephens, No. H-11-CV-2467, 2015 U.S. Dist. LEXIS 35434, at 13-14
Board should consider the circumstances of the death sentence. Every member of
Kent Whitaker’s family and every member of Patricia Whitaker’s family have been
forced to undergo the long and gut-wrenching odyssey of a capital murder case
through state and federal courts since March, 2007. They all supported or accepted
a life sentence. But for ill-timed confusion, there would be no need for this Request.
This Board is not bound to treat the victims and survivors in this case in the
same manner as the prosecution. On the contrary, this Board can and should afford
their “right to be treated with fairness and with respect for the victim’s dignity ...
throughout the criminal justice process.” Tex. Const. art. I §30; Tex. Code Crim. Pro.
art. 56.01(1). While the Legislature designated this Board to participate in recording
lawmakers did not address the role of the impact upon victims by the execution of a
sentence. Instead, they left this consideration to this Board and the Governor. Kent
There is no reason for this particular execution to take place. No one close to
the people involved in this case want it to happen. Some passionately oppose it.
Others simply wish their lives could be restored to the time before the crime. It is
only the State of Texas, through its employees and representatives, that mechanically
marches forward onto the date of death, unlike the people closest to the crime and the
criminal.
You may object and believe that your approval of the killing of Thomas
definition of justice above those who have lived and survived the actual tragedy. As
dangerous for Man to replace God’s example with one of our own.
The belief that the execution will fulfill justice is also misguided. The planned
It is difficult to pinpoint the exact moment that Bart Whitaker left this Earth.
Perhaps it happened when he wrote his letter of remorse before his trial. But at some
point in time only God can identify, the demented mind and tortured spirit of Bart
Whitaker evaporated from our world. In his place, a genuinely good young man
resides who, even as this Request is written, continues to lift the lives of others. Read
the attached letters, but do not call him Bart Whitaker because he is Thomas
Whitaker, the son Kent always knew and loved and loves today.
celebrated, not destroyed. In darkness, he was lost. But Kent has found what we all
can find. He has discovered the conquest of light over that darkness in the very heart
of his own son with an intimacy we cannot know and should not presume to know.
This Board should not only recognize the pointlessness of execution in this case.
Each member should fully recognize the light it will snuff out.
Recall the brother’s incredulity of his father’s reaction to the prodigal son. We
share it. This loyal, law-abiding son was struck at his father’s immediate, loving
reception because he did not understand. The father saw not the degenerate, greedy
miscreant who had left, but the good man who had returned home.
Jesus did not inform his disciples how the brother reacted. He left it to them
– and all of us – to reach the summit of the parable’s point on our own. Kent
believes that the skeptical son in the Parable of the Prodigal Son came to perceive
why his father celebrated. This Board should join those who have perceived what
Read these accounts from those who can attest to the truth of this case for
clemency. Look to Death Row itself and its witnesses. These are people whose lives
convicts,” Thomas told fellow death row inmate Arnold Prieto. (Letter, undated,
Arnold Prieto, Jr.). Another death row inmate speaks to Thomas’ “special affinity of
helping guys with mental illness.” (Letter, September 9, 2017, Keith Milam). Yet
another death row inmate, Faryion Wardrip, reflects on Thomas’ “uncanny ability to
calm others down,” and recounts how Thomas has inspired him and others to better
themselves, despite being on death row. (Letter, June 10, 2011, Faryion Wardrip).
Thomas sent unsolicited food to one of the most hated men on death row,
Johnathan “2 man” Green, and when asked about it, Thomas simply remarked, “the
man doesn’t make store, and as big as he is, he must be hungry.” (Letter, undated,
Arnold Prieto, Jr.). His acts are “genuinely extraordinary.” (Letter, September 6,
2016, Steven Bartholomew). Read why inmate Blain Keith Milam says, “I am
Milam). How often do you get pleas like these from Death Row?
with Thomas, I have a sense of peace that I did not have for over twenty years. A
peace that the justice system did not give me at the time of my own family tragedy.
I implore you to look at who Thomas Barlett Whitaker is today and not who he was.
We are all capable of change and this includes him.” (Letter, December 21, 2012,
Bonnie Pennybacker).1 Thomas has touched the lives of prisoners across the country.
From Washington State Reformatory, inmate Steven Bartholomew writes about his
future danger to inmates. We know this to be untrue. The judicial system got it
1
His genuine transformation is “very much evident” and inspiring to others. (Letter, January, 2013,
Tracey Evans). “Thomas believes in people, something he never imagined himself ever doing. He
wants to see the best in everyone and is eternally optimistic that we (himself included) can all strive
to be greater.” (Letter, September 2012, Maggie MacAulay). “That Thomas not only works hard
on himself, but additionally creates opportunities for others to do the same touches me deeply. I
believe in the person he has become.” (Letter, September 4, 2012, Dina Milito).
a Board member, you are effectively this state’s moral failsafe. When the imperfect
judicial system has failed to achieve justice, this Board and the Governor, as the final
branch of government to have a say in such matters, may yet right a wrong as well as
prevent another.
the State does not fulfill any interests of the surviving victims. It does not advance
Sparing Thomas Whitaker from execution means his good works in prison may
continue. It also means that Kent Whitaker can have a son. Don’t take that away
In a way, clemency is a test for each Board member. Every member of this
Board supports the death penalty. Every member also supports the rights of victims.
In this exceptional case, these two allegiances irreconcilably conflict. Only one path
can be selected.
Will the philosophy of the death penalty prevail over the constitutional duties
Whitaker more important than sparing Kent Whitaker? At the end of the day, this is
On February 23, 2018, the sun will rise. Each member of this Board will begin
a new day. From that day and every day thereafter, the impact of your decision will
reverberate in the lives of everyone connected to this case, both directly and beyond.
At the end of the day, you will close your eyes and you will know the path you chose.
When Kent Whitaker closes his eyes, he remembers the killings. This Board
can spare him from the indignity and cruelty of searing into his memory the image of
watching his son die. The Board can spare us all from such a miserable and
meaningless spectacle.
On February 23, 2018, Kent Whitaker will also begin his day. From that day
and every day thereafter, he will also know your path. May you choose justly and
wisely. May you let Kent Whitaker open his eyes to a new day under the sunshine
of your mercy.
Keith S. Hampton