Murder convict receives state’s first commutation hearing in six years

Thomas Koonce in his Marine uniform, a photo taken at Marine Boot Camp in 1985, when he was 18.

Thomas Koonce was a 20-year-old Marine home on leave in July 1987 when a night out with friends turned violent. A fight at a nightclub between rival groups from Brockton and New Bedford quickly escalated as it spilled into the streets.

Koonce was in a car trying to escape an angry crowd wielding bats when he stuck his gun out the window and fired a single shot, killing 24-year-old Mark Santos, according to trial testimony. Koonce told police he feared for his life and fired in self-defense, meaning to scare off the crowd with a warning shot. He said he accidentally killed Santos and rejected a deal by prosecutors that would have allowed him to plead guilty to manslaughter and serve five to 10 years in prison.

In 1992, an all-white jury convicted Koonce, who is Black, of first-degree murder, resulting in a mandatory sentence of life without parole. A decade ago, the trial prosecutor unsuccessfully urged the Massachusetts Parole Board to reduce that sentence, saying he believed it was unjust because the evidence didn’t support deliberate premeditation by Koonce.

Now, after 28 years in prison, Koonce has a chance at freedom, the first Massachusetts inmate to be granted a commutation hearing in six years.

“It certainly is a blessing,” Koonce, 53, said in a phone interview from MCI-Norfolk. “I’m not that same 20-year-old that committed that crime in 1987.”

The Parole Board’s decision to grant the hearing follows sharp criticism from criminal justice reform groups for letting commutation and pardon petitions languish for years, effectively closing off a path to clemency for inmates who may have been sentenced too harshly or have been rehabilitated.

In August, the American Civil Liberties Union launched a national campaign to have 50,000 prisoners released over the next five years through clemency, and the Massachusetts Supreme Judicial Court recently urged Governor Charlie Baker’s administration to consider commutations and pardons for deserving inmates “to mitigate the spread of COVID-19″ in the state’s prison system.

“I’m a huge believer in second chances in life,” said Terrence Kennedy, a member of the Governor’s Council who has been pressuring the Parole Board and the Baker administration to resume pardon and commutation hearings.

Just one Massachusetts inmate has been granted a commutation over the past 23 years, a record of inaction that Kennedy called “outrageous.” Baker’s predecessor, Governor Deval Patrick, granted only one commutation and four pardons.

“The whole commutation-pardon system exists for a reason,” Kennedy said. “When they turn their lives around and do the right things they should have a meaningful opportunity to have a second chance.”

There are 117 commutation and 209 pardon petitions pending before the Parole Board, said Jake Wark, a spokesman. The state constitution gives the governor authority to grant clemency, or leniency, to those convicted of crimes. A commutation reduces an inmate’s sentence, paving the way for immediate release or parole eligibility, while a pardon erases a conviction.

The Parole Board is reviewing every pending petition “with the understanding that clemency is an extraordinary form of relief,” Wark said. Koonce is the only petitioner to be granted a hearing since Baker took office in 2015. The hearing has not been scheduled, he said.

Massachusetts stands in stark contrast to a number of other states where governors have routinely commuted sentences as part of a national trend to reduce mass incarceration, according to Michael Meltsner, a Northeastern University Law School professor. In March, California Governor Gavin Newsom commuted the sentences of 21 inmates, then in June he commuted another 21. More than half of them were convicted of homicides. In Oklahoma, which was then the state with the nation’s highest incarceration rate, 527 people convicted of low-level drug and nonviolent offenses were granted commutations on a single day in November.

In May, the Massachusetts Parole Board notified those with pending clemency petitions that they could update them in light of new guidelines Baker approved in February.

Commutations are “an extraordinary remedy“ and are “intended to serve as a strong motivation for confined persons to utilize available resources for self-development and self-improvement as an incentive for them to become law-abiding citizens and return to society,” the guidelines state.

Timothy C. Foley, a lawyer who represents Koonce, wrote to the board in June that Koonce, whose petition has been pending since 2014, “presents the truly exceptional case that merits this type of extraordinary remedy.”

He urged the board to reduce Koonce’s sentence to make him immediately eligible for parole.

After the board holds a hearing, it makes a recommendation to the governor. If the governor grants a commutation or pardon, it goes to the Governor’s Council for final approval.

Koonce, who had no previous criminal record, graduated from Brockton High School in 1985 and joined the Marines. He was stationed on a nuclear submarine in Washington state when he returned home for a two-week leave in the summer of 1987.

On the night of July 20, Koonce was at a Westport nightclub with friends when the fight broke out, according to court transcripts. Koonce and his friends from Brockton weren’t involved, but at a nearby Burger King a short time later they were confronted by the New Bedford group, who were carrying bats, tire irons, and chains. The crowd dispersed when the police showed up.

Prosecutors said that Koonce and his friends then drove to New Bedford seeking revenge, but Koonce’s lawyers said he and his friends were simply hoping to meet girls at a party. As they were walking toward a housing development at around 1:30 a.m., a large crowd chased Koonce and his friends to their car. As they tried to drive away, they watched as the crowd smashed the windows of another car from Brockton, pulled a passenger out and beat him, according to court testimony.

As Koonce’s friend drove over a curb to escape, Koonce fired his pistol as he was crouched in the passenger seat, killing Santos, according to court testimony. He told his friends he was aiming at the sky but was bumped by his friend as the car accelerated.

Days later, Koonce went to the police station with his mother after his friend, who had been driving the car, was arrested. He told police that he had fired the shot and didn’t want his friend to pay for his mistake.

“I had no business in that neighborhood, no business carrying a gun,” Koonce recalled. “It was youthful arrogance.”

Koonce’s first trial ended in a mistrial, with 10 jurors favoring acquittal and two voting for manslaughter, according to Koonce’s petition. He had been free on bail, honorably discharged by the Marines, and working full time when he was convicted two years later.

In his years in prison, Koonce has counseled inmates and at-risk youths about the price of bad choices. He earned a degree from Boston University, participated in numerous self-improvement programs, and cofounded a restorative justice program. He has written a letter of apology to the Santos family and said he recognizes the pain he caused.

But Virginia Santos said she and her family have never recovered from the death of her son, Mark, and she opposes his petition for commutation.

“My son can’t come home, so I don’t believe he should be able to come home,” she said.

The jury was right to convict Koonce of first-degree murder, she said, and his work in prison doesn’t change her mind.

“It can never be enough for me,” she said.

Yet the prosecutor who won Koonce’s conviction testified during a 2010 commutation hearing that the case bothered his conscience because he didn’t believe the evidence supported a first-degree murder conviction.

“I cannot be silent when I helped bring about the conviction of a man for the wrong crime, a verdict that went too far,” John Moses wrote to the Parole Board after testifying.

Moses, who has since died, said the evidence did not support premeditation by Koonce and was more consistent with second-degree murder, which would have allowed him to become eligible for parole after 15 years.

He also said he was concerned that Koonce did not receive a fair trial because his lawyer failed to question prospective jurors about racial bias, even though he had done so at the first trial.

The Parole Board rejected Koonce’s commutation bid a decade ago, writing that he had made significant strides in prison but his efforts “focused on helping others rather than addressing the underlying causes of his own criminal conduct.”

Since then, Koonce said he has done everything the board asked him to do and accepts full responsibility for his crime.

Through a spokesman, Bristol County District Attorney Thomas M. Quinn III said he is reviewing the case to decide whether he will oppose Koonce’s current petition.

Several months before Koonce was sentenced to life in prison, he fathered a son, Thomas Andrews, who is now 28 and works as a marketing and branding consultant in Atlanta. He said his father has inspired him by never giving up on himself or their relationship.

“That night was a tragic mistake,” Andrews said.

He said his father has taught him that “a single moment can change the rest of your life. But also you have the power to be accountable, to take responsibility and find ways to really give back in a way that’s meaningful.”