In a week, Thomas “Bart” Whitaker, 38, is scheduled to be executed for plotting a 2003 attack that left his mother and brother dead and almost killed his father.
That father, Kent Whitaker, is doing everything he can to halt the execution. Inspired by his Christian faith and his son’s repentance, the 69-year-old retired construction firm comptroller hopes to have his son’s sentence commuted.
“The death penalty in this case is the wrong punishment,” he said.
Kent Whitaker forgives his son. He paid for lawyers to fight the death sentence at trial in 2007, and got down on his knees and begged prosecutors to seek a life sentence.
Texas is known for capital punishment, executing more inmates than any other state in the country — three this year, seven last year. But Kent Whitaker notes that it is also a victims’ rights state, meaning his wishes should be taken into account.
“Juries routinely defer to victims in cases to spare the life of a killer,” he said.
Thomas Whitaker’s last chance is a clemency petition filed with the seven-member Texas Board of Pardons and Paroles, which makes a recommendation to the governor by majority vote. Clemency is rare.
One of Whitaker’s attorneys won it for another convicted murderer, Kenneth Foster, hours before he was scheduled to die in 2007, based on arguments drawn from Scripture. Parole board members in Texas are bound by their consciences, not the law, and some told the lawyer afterward that his biblical arguments had influenced their votes.
So in Thomas Whitaker’s clemency petition, his attorney cited the Old Testament story of Cain, who after murdering his brother Abel was marked — but not killed — by God. He also cited the New Testament parable of the prodigal son, forgiven and accepted by his father after he strayed because he repented.
“You have a collision between two interests. Every one of those board members is a death penalty supporter. And every one of them is there to protect victims’ interests. They have to decide if it is more important to execute Thomas Whitaker or spare Kent Whitaker,” attorney Keith Hampton said.
Board members don’t confer about clemency: They send their votes to the state individually. Condemned inmates and their families can request to meet a member of the board, but it’s not guaranteed.
Last week, board member James LaFavers, a former Amarillo detective, met Whitaker’s son on death row. They spent two hours talking.
On Tuesday, the chairman of the board, former Lubbock County Sheriff David Gutierrez, met with Kent Whitaker, his new wife and brother in Austin for half an hour.
The chairman didn’t ask any questions, just listened as Kent Whitaker made his case for clemency. He said his son had been a model prisoner for 11 years, that the family had asked prosecutors not to seek the death penalty at trial and “it ought to mean something when a victim asks for mercy.”
Thomas Whitaker has confessed to plotting the murder of his family. His father believes he has reformed behind bars. Prosecutors disagree.
Whitaker was a troubled teenager. After he was arrested for breaking into his high school with friends to steal computers, his parents sent him to a private Christian school, then Baylor University and Sam Houston State University. But he stopped attending. The night of the attack, the family went out to dinner to celebrate his graduation, unaware that it was a lie — he had missed too many classes.
Before they went back home, the family snapped one last photo together, all smiles — including Thomas.
As they entered their house in the Houston suburb, an accomplice shot them, fatally wounding his mother, Tricia, 51, and 19-year-old brother, Kevin. A bullet passed just inches from Kent Whitaker’s heart. Thomas Whitaker was shot in the arm to make it appear he too was a victim. He then called 911.
It would be years before he admitted his role in the crime.
A thousand people attended the funeral at the largest church in the family’s conservative suburb, Sugar Land — including Thomas Whitaker.
“He sat there smiling, acting as victim, knowing that he killed them,” prosecutor Fred Felcman said.
Shortly before Whitaker was to be charged in 2004, he fled to Mexico, where he was caught a year later.
Felcman argued at trial that Whitaker planned to kill his family for a million-dollar inheritance. He had two accomplices — the gunman, who pleaded guilty in exchange for a life sentence, and a getaway driver, who got 15 years in prison.
Although Whitaker was not the triggerman, Felcman argued, he “was the ringleader. He literally led his family back to be assassinated.”
Felcman said Kent Whitaker has been used by his son.
“Most people have a conscience so they don’t try to manipulate people outright. He does,” Felcman said.
The prosecutor has tried 13 capital cases. About half resulted in death sentences.
“There’s certain crimes you have to forfeit your life for,” he said, in part because it’s the will of the people. “As soon as Bart Whitaker gets executed I will feel safer, and there are other people who feel that way, too.”
Not Kent Whitaker.
During an interview over lunch last week in Sugar Land, he recalled watching his son evolve during their weekly prison visits. Thomas Whitaker has admitted that he felt estranged from his family before the murders. He has sought forgiveness.
Four guards submitted letters on his behalf seeking clemency. He used his time on death row to start a blog, “Minutes Before Six,” the time prisoners are executed, to complete a bachelor’s and master’s degree in English literature by mail from Cal State Dominguez Hills. The deadline for completing his master’s thesis is set for after his execution.
During the lunch, Kent Whitaker fielded a call from the university, checking a form he needed to send with the thesis.
If the board doesn’t grant clemency, Whitaker plans to attend his son’s execution. When his son looks out of the glassed-in chamber, he wants him to see a caring face among the crowd.
Kent Whitaker already has nightmares about what he will witness.
“I hope the board will focus on how this execution will affect those of us who are living,” he said. “We’ve all worked hard to get past our grief, and we’re all going to be thrown back into that, realizing that Bart’s gone too, that he was the last member of my immediate family. It looks like I’m going to be victimized all over again. What kind of justice is that?”