Perry May Decide Killer's Fate Tonight

Gov. Rick Perry may have to decide whether condemned killer Robert Lee Thompson, set for execution Thursday, lives or dies.

The Texas Board of Pardons and Paroles, in a rare ruling, recommended that Thompson's death sentence be commuted to life in prison. Thompson, 34, was set for lethal injection Thursday evening for his part in the fatal shooting of a Houston convenience store clerk.

He was not the triggerman when Mansoor Bhai Rahim Mohammed, 29, was gunned down 13 years ago during a robbery but was convicted under the Texas law of parties, which made him equally culpable for the slaying.

The shooter, Sammy Butler, was convicted and received life in prison.

Thompson, tried separately, got death.

Perry is not required to follow the recommendation of the board, whose members he appoints.

"The governor has received the board's recommendation but has not made a decision," Perry spokeswoman Allison Castle said Wednesday.

Thompson's lawyer, Patrick McCann, also has an appeal before the U.S. Supreme Court to stop the punishment.

The parole board's 5-2 vote Wednesday came in response to a petition from McCann, who argued that the case was similar to that of Kenneth Foster, also convicted and sentenced to die under the law of parties.

Perry two years ago commuted Foster's sentence to life. Foster became only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed.

In the first case, in 2004, Perry rejected the board's recommendation and mentally ill prisoner Kelsey Patterson was executed.

Perry's explanation for commuting Foster was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio. In Thompson's case, he and Butler were tried separately in Houston.

At least a half dozen other Texas inmates have been executed under the law of parties.

Under the law, offenders conspiring to commit one felony like robbery can all be held responsible for another ensuing crime, such as murder.

The U.S. Supreme Court since 1982 has barred the death penalty for co-conspirators who don't themselves kill. The justices, however, in 1987 made an exception, ruling that the Eighth Amendment didn't prohibit execution of someone who plays a major role in a felony that results in murder and whose mental state is one of reckless indifference.

McCann's appeal before the Supreme Court raised questions about the competence of Thompson's trial lawyers, arguing that jurors who decided Thompson should be executed never learned of his abusive childhood, an upbringing by a mentally ill and drug- and alcohol-addicted mother and a household where he was "raised in and among felons."

Evidence at his trial showed Thompson, who is black, told detectives he went on a two-month crime spree in 1996 because God told him to do something about store clerks who discriminated against blacks.

The killing was one of three he acknowledged to authorities. In two of the slayings, Thompson told detectives he was the gunman.