Photo of Koonce and his son, Thomas Andrews at MCI Norfolk (2012) via Koonce family
“I cannot be silent when I helped to bring about the conviction of a man for the wrong crime”
On Tuesday, Oct. 27, Massachusetts held its second commutation hearing for life-sentenced prisoner Thomas Koonce, who was denied a commutation by then-Gov. Deval Patrick’s Advisory Board of Pardons in 2010. No one serving a life without parole sentence has been granted a commutation since 1997.
While Koonce was rejected in 2010 for needing to do more “work on himself,” he made a “compelling” case for commutation on Tuesday, said several members of the Parole Board who technically became the Advisory Board of Pardons to the governor. One raised serious questions about the fairness of his original conviction.
The hearing was held remotely, and over five-and-a-half hours Koonce answered questions amidst nine dropped connections and despite poor sound quality, which made it especially difficult for those listening in on the phone to hear every word.
Koonce clarified why he deserves this “extraordinary remedy.” He described how he has lived a life of “restoration and reparations” since he came to grips with killing Mark Santos in a clash between New Bedford and Brockton young adults in 1987. Koonce was one of the main people to bring restorative justice programs to Norfolk MCI, and said he has been instrumental in “making the prison a safer place.”
Koonce’s character was praised by numerous supporters, only four of whom testified, including Janet Connors, who lost her son to homicide and worked with Koonce’s restorative justice program inside prison. Conan Harris met Koonce behind bars and now fights for prisoner reentry justice. Harris, married to US rep. Ayanna Pressley, said he hoped to work with Koonce if he is released, and added, “Our people need you.”
Four members of the Santos family testified that Koonce should not be released, including Virginia Santos, Mark’s mother, and sister Michelle who said how hard this second hearing was on her family.
One might conclude that a headline from the fifth hour of the hearing was “Bristol County District Attorney, Thomas Quinn, in a surprising twist, says that Thomas Koonce’s case ‘warrants serious consideration for commutation.’” DAs most often recommend more prison time.
What was not acknowledged at the hearing is the back story of Koonce’s sentence, which his advocates argue should have long ago been commuted from life without parole to second-degree murder with parole eligibility. That story reverberated in comments by Parole Board member Charlene Bonner, the lone psychologist, who raised the question of Koonce’s “unjust verdict.”
Koonce’s “unjust verdict” was previously acknowledged by the trial prosecutor on this case, John Moses, the now deceased 16-year veteran of the Bristol DA’s office. The petition for Koonce’s commutation, which was not acted on for six years by the Parole Board (which let the petition languish for reasons unknown), contained a post-conviction letter by Moses to the 2010 Advisory Board of Pardons.
In that letter, Moses wrote, “I cannot be silent when I helped to bring about the conviction of a man for the wrong crime, a verdict that went too far, and is unjust when it denies Mr. Koonce the possibility of parole.”
Part of his reasoning came from how the actual crime occurred. The Board of Pardons in 2010 concluded in their commutation decision that the defendant, “having shot indiscriminately into a crowd,” should not have been convicted of premeditated murder. Koonce did indeed shoot and kill Mark Santos, but what was at issue was the intentionality of the crime associated with a life without parole sentence. Moses recommended a sentence of life with the possibility of parole, which is certainly no guarantee of release. The 2010 Board of Pardons said their “research” had found that in Massachusetts no such case like Koonce’s had previously warranted a life without parole sentence.
Koonce had two trials. There was a hung jury in the first trial, and at the second trial in 1992, the jury was not questioned for racial bias. Lawyers could have requested that but did not, as is now required in Massachusetts. Koonce, an African American, faced an all white jury, which added to concerns by Moses and others of the fairness of the verdict.
The fairness of Koonce’s conviction is supposedly no longer a consideration for commutation, according to new guidelines issued by Gov. Charlie Baker, which are quite different from those issued by Gov. Patrick.
Patrick said one must consider if “further incarceration would constitute gross unfairness” from both “the severity of the sentence received in relation to sentences received by other equally culpable and similarly situated defendants,” and “the extent of petitioner’s participation in the offense.” There is no such guideline under Baker.
Gloriann Moroney, chair of the Parole Board, said during the hearing, “The paramount considerations here for executive clemency are the nature and circumstances of the crime and how that affects the victims and/or victim’s family and … the behavior of the petitioner.”
But David Harris, managing director of the Charles Hamilton Houston Institute of Race & Justice said in an email, “As Governor Patrick recognized and as we are all coming to learn, questions of racial justice and justice in general cannot be detached from the consideration of a commutation petition. Mr. Koonce’s conviction of premeditated murder is so riddled with such questions that his life sentence constitutes a serious miscarriage of justice, fortunately correctible through the commutation process.”
At the end of the hearing, Konnce’s attorney, Timothy C. Foley said, “Mr. Koonce presents a truly exceptional case,” and that his commutation could “pave the way for commutation to indeed become an integral part of the correction process.”
If Koonce’s petition is advanced, Baker then has 90 days to approve or deny it. If the governor grants the commutation, then our elected Governor’s Councilors vote on it. Koonce will then need to come back before the Parole Board. And as is the case for all seeking parole, he would wait for a decision, which at this point takes seven to eight months after the hearing is held.
As of Aug. 31, per the Boston Globe, there are 117 commutation and 209 pardon petitions that the Parole Board has not acted on.
