Then, she said, she dropped to her knees and prayed.
“Please don’t allow this to happen,” Rowan wrote. “Don’t take my father away.”
Been struggled to finish reading the text message, her voice breaking as she paused several times to regain her composure during an interview with The Washington Post.
The message was sent Sunday, Been said, less than three weeks ahead of the date her niece has come to dread: Aug. 24, when the Texas Department of Criminal Justice plans to inject Jeffery Lee Wood with a lethal dose of pentobarbital to stop his heart.
Rowan’s nightmares have been happening more often as her father’s execution date looms closer.
It is so close now that she can feel it, Rowan told her aunt.
The scheduled execution is Wood’s punishment for the 1996 death of a man he did not kill — and, by some accounts, did not know was going to be killed.
Legal experts say his case is rare, even in Texas, the execution capital of America — and a state that allows capital punishment for people who did not kill anyone or did not intend to kill.
Wood was convicted and sentenced to death under what’s called the law of parties, which has been in effect in Texas since the 1970s. It states that a person who “solicits, encourages, directs, aids, or attempts to aid the other person to commit an offense” is also criminally liable for that offense.
Under the law, prosecutors are not required to prove that a defendant had any part in committing a crime, or even intended to commit it. Jurors only need to find that there was a plan to commit a crime and that the defendant should have anticipated that the crime would occur.
In Wood’s case, he was sitting in a pickup outside a Texaco convenience store in Kerrville, Tex., in January 1996, when Daniel Reneau went inside and shot and killed the store clerk with a .22-caliber handgun.
Wood’s supporters say he was under the impression that Reneau, a drifter he had met months earlier, was only going to buy food and drinks.
But they also agree that Wood is not completely innocent.
Court records say he was involved in a scheme with Reneau and the store’s assistant manager to steal a safe that they believed contained thousands of dollars. While the others had backed out, Reneau took it upon himself to steal the safe, court records say.
Based on testimony from Wood’s then-girlfriend, he asked Reneau to not bring his gun before the two drove to the convenience store that day. Reneau did anyway, without Wood’s knowledge.
Wood’s attorney, Jared Tyler, said his client could not have anticipated the death of the clerk, Kris Keeran, and was unfairly held responsible for Reneau’s actions and decisions.
Both men were convicted of capital murder. Reneau was put to death in 2002.
Wood has been on death row since 1998, when his daughter, Paige Rowan, was a toddler.
If executed this month, Wood will be the “least culpable person executed in the modern era of death penalty,” said Scott Cobb, president of Texas Moratorium Network, a group that advocates against capital punishment.
Tyler has filed a writ of habeas corpus — used to review the legality of someone’s imprisonment — asking the state’s highest court for a new sentencing hearing for Wood, saying punishment should be proportional to culpability.
Wood’s death sentence, Tyler said, was based on “false and misleading” testimony from a psychiatrist who did not personally examine his client.
Bruce Curry, the Kerr County district attorney whose office prosecuted Wood’s case, said he could not comment because of the pending court decision. A spokeswoman for the Texas Attorney General’s Office, which is handling the case, also declined to comment.
Tyler is ultimately asking the court to declare the state’s death penalty unconstitutional “because of its arbitrariness and inability to ensure that only the worst of the worst receive death sentence,” according to court records.
That raises a question for Terri Been: How is her brother, a man without a violent criminal history, the worst of the worst?
A child in a man’s body
At 12, Wood was described as a “highly impulsive” and “very troubled” youngster who often had negative opinions of himself.
When he was 15, he frequently asked how he was doing at school, often assuming he’d flunked, according to the writ of habeas corpus.
By the time he reached high school, he was spelling at a fourth-grade level and reading at a fifth-grade level. He is borderline mentally disabled with an IQ of 80.
His mother described him as an “eight-year-old in a man’s body.”
These “debilitating emotional and intellectual impairments” made Wood vulnerable to Reneau’s manipulation and rendered him unable to comprehend what Reneau was capable of doing, court records say. Because of those impairments, his attorney argued, Wood should have been declared incompetent to stand trial.
And he was — at least initially.
Wood was committed to a mental health hospital after he was found incompetent. A neuropsychologist had testified that Wood was delusional, unable to grasp the issues about his case and the reality facing him.
But Wood was released after 15 days in the hospital. Court records say the hospital tested his factual understanding of legal proceedings but not his ability to be rational.
This time, he was deemed competent to stand trial. A jury, not knowing about the neuropsychologist’s assessment of his mental state, found him guilty of capital murder.
The writ of habeas corpus, filed in July, spotlights something else the jury did not know: the troubled history of a forensic psychiatrist whose testimony resulted in Wood’s death sentence.
James Grigson was no stranger to capital murder cases: By the time Wood went on trial, in 1998, Grigson said he had testified in 163 such cases.
Prosecutors often sought his testimony to secure the ultimate punishment for defendants.
Often, they were successful, earning Grigson a nickname: “Dr. Death.”
Grigson didn’t personally examine Wood. But during the sentencing phase of the trial, the forensic psychiatrist told jurors that Wood would “most certainly” commit violent crimes in the future, according to court records.
The prosecuting attorney elicited that response by describing a hypothetical situation that laid out the facts of the case.
What jurors didn’t know was that Grigson, so beloved by prosecutors, was reviled in his own field.
In 1995, three years before Wood’s trial, Grigson was expelled from the American Psychiatric Association and its Texas branch at that time, the Texas Society of Psychiatric Physicians, for predicting a defendant’s potential threat to society based solely on a hypothetical. The expulsions followed an investigation by the Texas association’s ethics committee, which cited Grigson’s “willfully narrow rendition of psychiatric knowledge.”
In a profile published after Grigson’s death in 2004, the Houston Chronicle cited his unusual willingness to testify against capital murder defendants. A former prosecutor who used Grigson in several trials told the newspaper that he was an “outstanding communicator who really connected with a jury.”
But the psychiatric association saw Grigson as a threat to the profession.
In the writ of habeas corpus, Tyler asked the Texas court to find that Grigson’s testimony about Wood was false and misleading.
A controversial law
Since 1976, there have been 1,437 executions in the United States.
Oklahoma and Virginia have the next-highest figures, with 112 and 111 executions respectively since 1976.
Executions of people who did not directly kill the victim are extremely rare: The Death Penalty Information Center lists just 10 such instances that didn’t involve contract killings. Half were in Texas under the law of parties.
In recent years, there have been efforts to reform Texas law so that someone who didn’t kill won’t be executed. So far, those efforts have failed.
Last year, state Rep. Harold Dutton, a Democrat from Houston, introduced a bill that would ban the death penalty in law of parties cases. The bill, however, did not get a vote on the floor.
Tim Cole, a former Texas prosecutor and defense attorney, said the law of parties erases the distinction between an accomplice and someone who pulled the trigger.
“The legal argument is that, obviously, if you look at moral culpability in terms of who’s most culpable, it’s the person who actually committed the crime,” Cole told The Post. “In most circumstances, most people would think the other person who pulls the trigger should be subject to a higher level of punishment than the other person.”
Cole echoes what the U.S. Supreme Court has said in the past.
In a 1982 case involving the robbery and murder of an elderly Florida couple, the high court threw out the death-penalty sentence of a man who was in a getaway car when the killings happened. Someone who participated in the robbery shouldn’t be treated the same as the person who committed the killings, the court said.
But there are exceptions, Cole said. One example is a murder-for-hire case in which the triggerman was following orders from someone else.
Wood’s looming execution comes as prosecutors are seeking the death penalty less frequently than they used to, partly because of budgetary reasons. The public’s attitude toward the death penalty also has dramatically shifted, as shown by Gallup’s documentation of public opinion. Thirty-five percent opposed capital punishment in 2013, up from 16 percent in 1994.
Had Wood been charged today, he wouldn’t have been facing the death penalty, said Cole, who now teaches Texas criminal procedure at the University of North Texas.
“I really don’t think that this case would be prosecuted under today’s standards and under today’s climate — even in Texas,” he said. “It’s just not the type of situation in today’s climate for the death penalty where most prosecutors would seek the death penalty.”
Wood’s case also has attracted attention from those outside the criminal justice system.
Earlier this month, 16 Roman Catholic bishops from across the state wrote a letter to Texas Gov. Greg Abbott (R) urging him to grant a stay on Wood’s execution.
“Mr. Wood has never taken a human life in his own hands,” the letter reads. “He was not even in the building at the time of the crime. It is extremely rare for any person in the history of modern death penalty to have been executed with as little culpability and participation in the taking of a life as Mr. Wood.”
The letter was sent not long after relatives and supporters of Wood gathered outside the Governor’s Mansion in Austin and called on Abbott to call off Wood’s execution and commute his sentence.
In 2007, then-Gov. Rick Perry granted clemency to Kenneth Foster Jr., who, like Wood, was convicted and sentenced to death under the law of parties.
He turns 42 on Aug. 19, a few days before his scheduled execution.
Been, a science department chair at a middle school in Dilley, Tex., said her brother has always believed he will be spared.
Been already said goodbye to her brother once, in 2008; his initial execution date was postponed because of issues with his competence.
Panic sets in every time she thinks about doing it all over again.
“I don’t have much time left,” she said.