Trial for 6th escapee may be challenge
Inmate was said to be lookout, driver when Irving officer was shot
10:24 AM CST on Monday, November 10, 2003
Five death-penalty trials have come and gone with the same outcome since members of the so-called Texas Seven prison gang were captured in the Colorado Rockies in January 2001.
As the last of the surviving gang members faces trial Monday, observers say the case against Patrick Murphy Jr. could be the most challenging yet for prosecutors seeking a sixth death-penalty conviction.
In the capital murder trials so far, prosecutor Toby Shook argued that each of the men was present when Irving police Officer Aubrey Hawkins was ambushed and shot during a botched Christmas Eve 2000 robbery.
Those five men were armed and contributed to the barrage of gunfire that killed the officer, investigators determined.
But Mr. Murphy's role in the heist was limited to that of a lookout and getaway driver. He was inside a car in the store's parking lot communicating with the men by two-way radio when the officer was fatally shot, according to previous trial testimony.
To convict Mr. Murphy, prosecutors will ask jurors to rely on the law of parties.
Under that law, a defendant can be found guilty of the crimes of his partners, provided that he should have anticipated that the violence was a possible outcome of their actions.
Death penalty opponent Jim Marcus, executive director of the Texas Defender Service, said it's not uncommon for juries to condemn to death defendants who may not have pulled the gun trigger but were parties to the crime.
"I think in a case like this, you get a certain level of community outrage, and it doesn't matter," Mr. Marcus said.
District Judge Vickers Cunningham has imposed a gag order during the trial. It forbids prosecutors and defense attorneys Brook Busbee and Juan Sanchez from discussing details of Mr. Murphy's case outside the courtroom.
Prosecutors have Mr. Murphy's statement to police after he was captured. The convicted burglar and rapist told police that he had a gun and was prepared to be a sniper in case anyone arrived while the men were still inside the store.
The defense plans to call ringleader George Rivas as a witness.
Mr. Murphy was serving a 50-year sentence for a 1984 aggravated sexual assault in Dallas County and was 15 months shy of his first possible parole date when he and six others escaped from the Connally Unit prison near San Antonio on Dec. 13, 2000.
After escaping from prison, the men committed a string of robberies that culminated with the holdup of an Oshman's SuperSports USA store in Irving.
Officer Hawkins had just finished a holiday dinner with family at a restaurant across State Highway 183 when he was dispatched to investigate suspicious activity at the store.
He drove up and was ambushed as the men were loading a cache of stolen guns, camping supplies and more than $70,000 in cash.
The seven escapees fled to Colorado and stayed together, living in an RV park near Colorado Springs for about three weeks.
A neighbor recognized them from media reports and alerted police.
Four of the escapees – Mr. Rivas, Joseph C. Garcia, Randy Halprin and Michael Anthony Rodriguez – were captured Jan. 22, 2001, at the RV campground. Mr. Murphy and Donald Newbury were caught two days later in a Colorado Springs motel. A seventh man killed himself rather than surrender.
In another case involving a lookout, Joe Lee Guy took part in a 1993 West Texas robbery that resulted in a convenience store clerk being fatally shot.
While Mr. Guy was not physically present when the convenience store clerk was shot, he was the only one sentenced to die.
The other two men received life sentences.
The eventual sentence for Mr. Murphy will probably come down to the work done by prosecutors and defense attorneys selecting the jury panel, observers agree.
During more than a month of jury selection, prosecutors took pains to question prospective jurors about their beliefs on the law of parties and whether they could consider the full range of punishment if they convicted someone.
Each of the 12 jurors and two alternates indicated that they could consider the death penalty for someone found guilty as a party to a capital murder.
"A lot of people say that death cases are won and lost on jury selection," Mr. Marcus said. "The difference between a fabulous attorney and an average one is often their jury selection."
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