It was just after 4 p.m. on July 23 and the temperature was firmly in the triple digits by the time 20-year-old Nick Been took to the microphone set up outside the iron gates that surround the Texas governor’s mansion in Austin. A small crowd of anti-death penalty activists had joined Been’s friends and family on the sunny street just steps from the state’s red granite Capitol. They were there to call for Gov. Greg Abbott to halt the impending execution of Been’s uncle, Jeff Wood, who is scheduled to die on August 24, just five days after his 43rd birthday, for a crime that everyone, including prosecutors, admits he did not commit. Nick Been was not yet born when Wood was arrested on January 2, 1996, for the robbery and murder of his friend Kriss Keeran, a clerk at a Texaco station in the Hill Country town of Kerville that Wood and his friends frequented. And he was just a toddler when Wood was sentenced to die in March 1998. Indeed, he and his brothers have lived their entire lives under the shadow of their uncle’s execution. The experience has made them fierce abolitionists.

Photo: Scott Cobb for The Texas Moratorium Network

In 2008, when Nick was 12, the same year Wood received his first execution date, the boys and Wood’s daughter officially formed Kids Against the Death Penalty. Wood’s execution was stayed that August, and over the years the kids’ activism grew. Subchapters of KADP were formed in Texas and Europe; the boys were invited to speak at the World Congress Against the Death Penalty in Switzerland, and they rallied at the Texas Capitol on execution days. They joined their mother, Terri Been, and other activists in lobbying activities during biennial sessions of the state legislature. In particular, they asked lawmakers to change a troubling provision of Texas law, a statute responsible for sending Wood to death row. Under Texas’ so-called law of parties, a person who never killed anyone can nonetheless be sentenced to death. Wood was sitting in a truck outside the Texaco when Danny Reneau went inside and shot Keeran dead. Wood has said he had no idea that Reneau even had a gun or that Reneau would shoot his friend. Yet under the law of parties, prosecutors were allowed to impute to Wood the same level of responsibility for Keeran’s death as Reneau, the triggerman. An extension of the theory of accomplice liability, the law holds that if two or more conspirators agree to commit one crime — say, a robbery — but instead, one of them commits another crime — say, murder — each party can be held responsible for the murder, regardless of individual intent, based on the notion that the conspirators should have anticipated that the crime committed would actually happen. Texas is among five states that approve “actively” pursuing the death penalty for an accomplice who lacked intent to kill; the vast majority require intent as a prerequisite to seeking the death penalty against a party to a crime. Put simply, Texas’s law is unjust, Been told supporters outside the governor’s mansion, because it “punishes affiliations” and not actions. “How does it get more unfair than that?” he asked the crowd, tearing up as he spoke. “My uncle is a victim of the Texas system. He is sentenced to be executed for a crime he did not — did not — commit.” On Death Row for Robbery According to the state, Wood conspired with Reneau to rob the Texaco station on January 2, 1996, when there would be a large amount of cash on hand because of holiday bank closures. That he was neither in the store when Keeran was shot nor responsible for shooting Keeran, the state argued, did not mitigate his responsibility for the murder. In one of two statements to police, Wood apparently acknowledged that he was aware that Reneau had a gun on him the morning of the murder. Wood’s family and attorneys dispute that narrative. There was a plot to rob the store of its cash receipts, but Keeran and another store employee were in on the plan, they say, which was actually supposed to occur on January 1. When the employees backed out, Wood did too, and so on the morning of January 2, he had no idea that Reneau intended to carry out the crime, let alone kill anyone. And it was not unusual for Wood to drop by the store multiple times a day, so the simple fact of going to the store that morning did not ring any alarm bells for him. “The plan was supposed to happen the day before, you know,” said Wood’s sister Terri Been. “It ceased to be a plan when it didn’t happen on the date it was scheduled for.” After the gunshot rang out, Wood entered the store and, under threat from Reneau, helped him to carry out the store’s safe and remove a video surveillance tape. Terri Been says it is clear that Wood is guilty of robbery — despite the fact that Reneau threatened the life of Wood’s young daughter if he did not help to remove the safe — and she agrees that he should be punished accordingly. But, as the U.S. Supreme Court has noted, robbery alone is not punishable by death. “People who murder people get out of prison in 15 years,” she told a television reporter during the rally outside the governor’s mansion. “My brother is on death row for robbery.” The idea that parties to a crime must be held responsible for their actions is widely accepted, and the concepts of accomplice liability and felony murder are broadly applied in the larger criminal justice system. Since reinstatement of the death penalty in 1976, just 10 individuals have been executed under this theory of liability for a murder they did not commit, according to the Death Penalty Information Center. Unless a court steps in to stop it, on August 24, Jeff Wood will be the 11th name added to that list — and the sixth from Texas. The use of the law of parties in Texas death penalty cases has been controversial. It earned the state harsh criticism from around the world in the case of Kenneth Foster, who was tried for capital murder in connection with the 1996 killing of Michael LaHood Jr., the son of a prominent San Antonio lawyer. Foster drove a car that the triggerman was riding in but said he had no idea the man would shoot anyone. The state pointed out that in the hours before LaHood was killed, Foster and three others, including the triggerman, had committed two robberies at gunpoint while driving around the city, and that Foster, as a “reasonable person,” should have anticipated that a murder might occur. Arguably, Foster’s culpability for the death of LaHood was greater than Wood’s in the murder of his friend Keeran. Yet in 2007, Gov. Rick Perry granted clemency to Foster, commuting his sentence to life in prison. During his tenure as governor, Perry presided over nearly 300 executions; Foster’s was the only case where he exercised his discretionary clemency power to spare a life. (Other inmates whose sentences were commuted by Perry were done so pursuant to court order.) Though Perry’s stated reason for granting Foster’s commutation was that he was jointly tried with the triggerman (co-defendants in Texas have no right to individual trials), Foster’s attorney, Keith Hampton, believes it was concern about Foster’s culpability that convinced the state’s Board of Pardons and Paroles to recommend to Perry that Foster’s life be spared. (Texas law only allows the governor to grant discretionary clemency on a recommendation of the BPP.) Part of Hampton’s argument to the board was a religious and moral one: If the death penalty was intended as an eye-for-an-eye punishment, executing Foster would serve no moral purpose, because Mauriceo Brown, the triggerman, had already been executed. The same logic applies to Wood’s case, Hampton points out. Reneau was executed in 2002.

Death penalty opponents hold a small rally in front of the Supreme Court on Aug. 29, 2007, to protest the slated execution of Kenneth Foster in Texas. Photo: Bill Clark/Roll Call/Getty Images

Excessive Punishment More to the point, in Wood’s case the imposition of the death penalty seems almost certainly unconstitutional, given the U.S. Supreme Court’s 1982 decision in Enmund v. Florida. In that case, Earl Enmund was tried and sentenced to death for the murder of an elderly couple committed in the course of a robbery, even though he was not present during the robbery or the murders. Instead, he was sitting in the getaway car while the crime was committed. Florida’s highest court agreed that Enmund was a party to the robbery scheme and upheld the conviction and sentence, ruling that it was irrelevant whether he was present or whether he intended to kill anyone. The Supreme Court disagreed, noting that the death penalty was an excessive punishment for a robber. “Here, the focus must be on the petitioner’s culpability, not on those who committed the robbery and killings,” Justice Byron White wrote for the majority. “He did not kill or intend to kill, and thus his culpability is different from that of the robbers who killed, and it is impermissible for the State to treat them alike and attribute to petitioner the culpability of those who killed the victims.” In 1987, the court issued a second opinion on the matter in a case known as Tison v. Arizona, carving out an exception to Enmund if the defendant was substantially involved in the crime at hand and “had the culpable mental state of reckless indifference to human life.” In short, Hampton argues, it would appear that Wood’s execution, like Enmund’s, should be barred by the Eighth Amendment’s ban on cruel and unusual punishment. Yet, this argument has never been made in any of Wood’s appeals, and one of Wood’s current lawyers, Jared Tyler, who has worked on the case since 2008, said he believes strongly that a court should consider the issue before it’s too late. “It is correct that no court has determined whether Mr. Wood’s execution is barred by the Eighth Amendment because [the punishment] would be disproportionate to his culpability,” Tyler wrote in an email to The Intercept. “We believe a court should do so before he is executed.” And there are other aspects of Wood’s case that make his conviction and likely execution troubling. Wood’s trial was initially postponed because a jury deemed him incompetent to stand trial. Wood has borderline intellectual functioning and a history of emotional issues. Even after he was deemed competent and put on trial, questions persisted about his ability to aid in his defense. After he was convicted, but before the punishment phase of his trial began, Wood tried to fire his attorneys in favor of representing himself. The judge found he was not competent to do so, but failed to launch a wider inquiry into whether he was competent enough at that time to continue the trial, Tyler said. With his request for self-representation denied, Wood instead instructed his attorneys not to do anything during the punishment hearing. They neither put on any evidence about his life and background that could have mitigated his sentence, nor did they cross-examine any of the witnesses put on by the state — not even the wildly speculative and inflammatory testimony of Dr. James Grigson, the infamous forensic psychiatrist known by many, including his peers, as “Dr. Death,” for testifying in nearly every death penalty case he appeared in that the defendant would present a future menace unless executed. Grigson had already been expelled from the American Psychiatric Association and its Texas counterpart for his unethical behavior long before he testified against Wood — a fact the jury never knew. Responding to a hypothetical robbery-murder scenario presented to him by prosecutors, Grigson predictably testified that unless sentenced to death, Wood would pose a continuing threat to society, including to those behind bars. He based this conclusion, he said, on the fact that Wood didn’t wear a mask during the proposed robbery. “Surely, you would have thought in terms of using a mask or a disguise where you wouldn’t have to kill somebody, so this was a deliberate and intentional act in terms of the clerk that was going to be killed,” he testified. Claims on appeal related to these issues have been denied. Today, Wood’s lawyers filed a writ of habeas corpus in state court seeking a new punishment hearing, arguing that his initial hearing was “prejudiced” by Grigson’s false and misleading testimony.

Photo: John Davis

My Uncle Didn’t Kill Anyone In the absence of a ruling on the fundamental question of whether Wood’s sentence is constitutional, Terri Been and her children have pressed to amend the Texas law of parties to bar its use in death penalty cases — and possibly to provide Wood some retroactive relief. During the 2009 session they came tantalizingly close when a bill that would have banned the practice made it out of the fractious and largely pro-death penalty House and sailed through a Senate committee only to languish without being called up for a vote on the chamber’s floor. That was heartbreaking for Terri, who had quit her job in 2008 in anticipation of the start of the biennial session the following January. Throughout the first part of 2009, she and her kids, under the banner of Kids Against the Death Penalty, were at the Capitol nearly every day, organizing with other abolitionists, talking to legislative staff, and testifying at committee hearings. She found an ally in Rep. Harold Dutton, an attorney from Houston, who signed on to the legislation. By the end of May, she was optimistic about the chances of getting the bill passed. But then, in the waning hours of the session, while waiting for the bill to be called up for a vote, she got a call from the aide of another of the bill’s sponsors saying that Gov. Perry was threatening a veto unless the bill was rewritten.

Photo: Harry Cabluck/AP