CHAPTER TEN: A MODEL FOR THE NATION

 

 

            Presiding Court of Criminal Appeals Judge Michael McCormick has described the Texas criminal justice system as a “model for the nation.”[1] And now that George W. Bush is President, it is a model for the nation. Which makes it all the more important to understand exactly how Texas enforced the laws of the state “on his watch.”

            Since the U.S. reinstated the death penalty in 1976, Texas has executed a third of the approximately 480 people put to death in this country.[2] One would hope that, with such large numbers both executed and slated for execution, Texas would proceed with extreme caution. It is not clear that it does.

            A study of the Texas death penalty under Governor George W. Bush was performed by three Chicago Tribune reporters – Steve Mills, Ken Armstrong, and Douglas Holt – in June 2000. Their study found glaring and pervasive failures in the death penalty process under the presidential hopeful.

            By the time of the study Gov. Bush had executed 131 alleged murderers. The investigative journalists found that, of those 131 executions, defense attorneys in 40 cases presented either no evidence whatsoever or only one witness during the trial’s sentencing phase. In 29 of the cases, James “Dr. Death” Grigson testified that the defendant would commit future violent acts, although in most of these cases he had never interviewed the client. In 43 (one-third) of the cases the defendant was represented at trial or on initial appeal by an attorney who had been or was later disbarred, suspended, or otherwise sanctioned. In 23 of the cases prosecutors utilized jailhouse snitches, a form of testimony so notoriously unreliable that some states warn jurors to view it skeptically. In several of these cases the jailhouse snitches’ testimony was the sole evidence against the accused. In 23 cases the prosecution visually compared hairs from the crime scene, a form of evidence so inexact that it is barred or restricted in some jurisdictions. Questionable expert testimony was rampant – in one case a forensic scientist was temporarily released from a psychiatric hospital to testify for the prosecution.[3] According to the Texas Defender Service, in nearly 10 percent of Texas death penalty cases reviewed, a prosecutor or police officer either deliberately presented false or misleading testimony, concealed important evidence favorable to the defendant, or used unreliable evidence from a jailhouse snitch.[4]

            Any criminal defendant needs a good lawyer, and according to the U.S. Supreme Court they have a right to one. In a 1984 decision the Court ruled that “the right to counsel is the right to effective assistance of counsel.”[5]

            But some legal analysts have questioned if poor defendants in Texas are receiving effective assistance of counsel. In a 1999 survey of Texas judges by the State Bar of Texas, 26 percent of the judges said court-assigned indigent defense attorneys don’t have the investigators or forensic, mental health, and other expert assistance necessary to properly defend their clients. Fully 87 percent of the judges surveyed said attorneys spend less time representing indigent clients than they do working for those who pay them directly. Regarding attorney preparation, 72 percent said court-assigned counsel are less prepared than private attorneys. And 66 percent of the judges surveyed said court-assigned lawyers put on a less vigorous defense. Half said that campaign contributions from attorneys are a factor judges consider in deciding which attorneys get assigned to cases, and perhaps most alarmingly, many judges admitted to consulting with prosecutors for advice before appointing a defense attorney.[6]

            The payment ceiling for court-appointed lawyers under Gov. Bush was $25,000-$30,000. Given the massive number of hours demanded by capital cases, this is not enough money to secure competent lawyers. A private attorney in a capital case would ask for at least $100,000-$200,000.[7] The situation was so extreme that the Texas Criminal Defense Lawyers Association warned its members about the financial perils of court-appointments. It said, “The Court’s [$25,000] limitations [on fees and expenses] will place you in the untenable position of having to choose between competently representing your client and performing about 250-750 hours of uncompensated work, or, if your practice precludes such a large number of pro bono hours, not being able to competently represent your client.”[8]

            Gov. Bush did not address this situation, and may have worsened it. Of the $153 million in federal assistance that Texas received for criminal justice programs during his tenure, not one penny was used for indigent defense.[9]

            Perhaps the only good to come out of all this neglect is some of the most hilarious closing statement in the history of trial law. Jose Luis Pena had been an attorney for only 17 months when he was appointed to defend Davis Losada for the rape and murder of a 15-year-old girl. He had a bit of a conflict of interest, since he had represented the key prosecution witness against Mr. Losada in a previous trial. When he cross-examined his former client (the prosecution witness), he asked him the same question three times and nothing else in order to avoid delving into areas covered by attorney-client privilege.

            Having already compromised Mr. Losada’s case through unethical conduct, Mr. Pena made up for it with a rousing closing statement. He began, “Ladies and gentleman, yesterday when I was talking to you all the lights went out. I don’t know. Maybe that was a message. Today it rained. Maybe that was a message. Maybe the rain drops are key issues, but that’s what you have to decide today . . .” He rambled on for a while, and closed with, “The system. Justice. I don’t know. But that’s what y’all are going to do.”

            Mr. Losada was sentenced to death in 1985 and executed by Governor George W. Bush in 1997. Mr. Pena was later disbarred for pocketing money that belonged to clients. Reflecting on Mr. Losada’s case, Mr. Pena admitted, “I think the judge knew I would take the case and maybe dispose of it quickly. I think he thought perhaps I would roll over and play dead.”[10]

            In October 1997, in his closing statement, the defense attorney for Mr. Kenneth Mosley told the jury that Mr. Mosley should die, but that they should send him to prison instead since that was a worse punishment. After refusing to allow Mr. Mosley’s mother to testify on behalf of her son, the attorney stated before the jury, “You saw what a pitiful, hollow, insignificant, sniveling human being he [Mosley] has become. Is this the kind of person you want to put out of his worthless misery?” The jury took less that 30 minutes to reach a recommendation of death.[11]

            All these abstract statistics and hilarious closing arguments actually have real life (and real death) consequences. In July 2001 Supreme Court Justice Sandra Day O’Connor noted her own reservations about the death penalty and growing concern that innocent people were being executed. In doing so, she cited evidence from Texas that indigent defendants represented by court-appointed counsel were 28 percent more likely to be convicted and 44 percent more likely to receive a death sentence if convicted.[12] Of the handful of capital murder acquittals in Texas in the last decade, all except one belonged to expensive, privately retained lawyers.[13]

            Walter Rowe of George Washington University, an expert defense lawyer, says that for poor defendants “the unfortunate fact of life is, if you ain’t got bucks, you’re going to take it in the shorts.” When defendants solicit his services as an expert witness, he asks them, “How much justice can you afford?”[14]

            The Dream Team. As further evidence of the incompetent legal representation that poor defendants receive in Texas, several attorneys for impoverished defendants seem to have been affected by “Sleeping Lawyer Syndrome.” George McFarland, indicted on capital murder charges in Houston, Texas, hired attorney John Benn to defend him. Mr. Benn spent four hours preparing for trial and “did not examine the crime scene, interviewed no witnesses, prepared no motions, did not request that any subpoenas be issued, relied solely on what was in the prosecutor’s file, and visited his client only twice.”[15] Moreover, once the actual trial began, he slept through much of it. A reporter noted, “Benn spent much of the trial in apparent deep sleep. His mouth kept falling open and his head lolled back on his shoulders and then he awakened just long enough to catch himself and sit upright. Then it happened again. And again. And again. Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the November 19, 1991 arrest of George McFarland in the robbery-killing of Kenneth Kwan. When State District Judge Doug Shaver finally called a recess, Mr. Benn was asked if he truly had fallen asleep during a capital murder trial. ‘It’s boring,’ the 72-year-old longtime Houston lawyer explained . . . Court observers said Benn seems to have slept his way through virtually the entire trial.”[16]

            Justice Shaver later recalled that he knew that Mr. Benn “wasn’t competent” and observed that Mr. Benn looked like “a heavy drinker” because of his rumpled clothes and watery red eyes.[17] Nevertheless, he denied that Mr. McFarland was denied adequate legal representation by his attorney. “The Constitution says everyone’s entitled to the attorney of their choice . . . The Constitution doesn’t say the lawyer has to be awake.”[18]

            The Texas Court of Criminal Appeals agreed. They gave Mr. McFarland’s appeal to Marcelyn Curry, an inexperienced attorney who had never before handled a capital appeal. At the time, she had Hepatitis A, Hepatitis B, anemia, dizzy spells, and needed surgery. Ms. Curry recalls, “The Court of Appeals was informed of the fact that during this [appeals] process I was sick, I was in need of surgery and still they demanded a brief. All they wanted was a brief so that they could get the appeal behind them.”[19]

            All but two of the Court’s justices voted to deny Mr. McFarland relief. The dissenting justices noted that Mr. Benn would sleep through a witnesses’ testimony, and then cross-examine the witness. They doubted that Mr. Benn could adequately represent Mr. McFarland with such methods, and asserted that “sleeping counsel is no counsel at all.”[20] Mr. McFarland’s case is now in federal appeals court.

            On April 17, 1983 Calvin Jerold Burdine and Douglas McCreight allegedly robbed and murdered the former housemate and companion of Mr. Burdine, W.T. “Dub” Wise. Although evidence indicated that Mr. McCreight was the primary actor, Mr. Burdine was charged with capital murder and Mr. McCreight was offered an eight-year sentence in exchange for his testimony. Some speculation occurred that Mr. Burdine was singled out for prosecution due to his homosexuality.

            Mr. Burdine was appointed Joe Frank Cannon (not to be confused with Joseph John Cannon: see Chapter One) to represent him; there was no co-counsel. Mr. Cannon liked to boast of hurrying through capital trials “like greased lightning,” and over a long career ten of his twelve capital clients went to death row.[21] He also had a well-known problem with falling asleep during trials. The Court clerk in Mr. Burdine’s trial testified, “I know Joe Cannon. I had seen him before. I knew that he had this problem.”[22]

            The sleeping-lawyers-syndrome kicked in again at Mr. Burdine’s trial. Court Clerk Rose Marie Berry declared, “I do know that he fell asleep and was asleep for long periods of time during the questioning of witnesses.”[23] Two jurors testified that they observed Mr. Cannon “nodding,” with his head down, his chin on his chest, and his eyes closed.[24] One juror recalled seeing a red-eyed Mr. Cannon suddenly awaken from a ten-minute nap when a clerk dropped a book. These naps happened “five to ten times” during the trial.[25]

            Mr. Burdine was found guilty and the sentencing phase of his trial began. Mr. Cannon’s presentation to the jury during this phase is offered in its entirety below:

            Cannon to Burdine: Calvin, do you want to take the stand and plead for your life?

            Burdine: No, sir, they didn’t listen to me the first time, I don’t see –

            The Court: What says the Defense, gentlemen?

            Cannon: We close, your honor.[26]

 

In his closing argument, Mr. Cannon gave a rambling discourse on the history of torture in medieval England, and then offered a plea for mercy based on the Biblical account of Cain and Abel.[27] When prosecutors asserted that life in prison is not so bad for a homosexual, Mr. Cannon did not object.[28] Mr. Cannon himself later referred to homosexuals as “queers,” “fairies,” and “tush hogs.”[29] Mr. Burdine was sentenced to die; Mr. McCreight has since been paroled.[30]

            On appeal, an experienced trial judge ruled that Mr. Burdine had been denied “effective assistance of counsel” since Mr. Cannon had slept through much of his trial, and recommended that he receive a new trial. But the Texas Court of Criminal Appeals disagreed, and in a one-page unsigned order affirmed his death sentence. Then, a federal district court judge overruled the Court of Criminal Appeals since it “failed to provide any justification for its rejection of the trial court’s conclusions.”[31]

            What was Governor Bush’s reaction to the news that his state occasionally represented capital defendants with sleeping lawyers? When asked about the Burdine case in a March 2, 2000 presidential primary debate, he simply asserted that since Mr. Burdine had received relief from a federal court, “the system worked.”[32]

            But the system didn’t work for Carl Johnson, another capital defendant represented by a sleeping Joe Frank Cannon for the October 1978 murder of a security guard. Reviewing the transcripts, an investigator concluded, “In Carl Johnson’s case, the ineptitude of the lawyer who represented him [Mr. Cannon] jumps off the printed page. During long periods of jury voir dire, while the State was asking questions of individual jurors, the transcripts give one the impression that Johnson’s lawyer was not even present in the courtroom. Upon investigation, it turned out that he was in fact present; it’s just that he was asleep.”[33] Mr. Johnson’s appeals were denied. Although informed that Mr. Johnson was represented by a sleeping lawyer, Governor Bush was unconcerned. The Governor denied any reprieve, and Mr. Johnson was executed on September 19, 1995. Mr. Burdine’s sentence has been reduced from death to life in prison.

            More on Dr. Death. Dr. James Grigson is a Dallas psychiatrist who has often testified for the prosecution in death penalty cases. In Texas, in order to receive the death penalty, a convicted murderer must be established to pose a clear threat of violence in the future. Prosecutors would therefore hire Dr. Grigson to argue (in the sentencing phase of trials) that the defendant posed an extreme threat of violence in the future and therefore necessitated execution. So successful was his testimony that defense attorneys and the media began referring to him as “Dr. Death.”[34] Over his career Dr. Grigson has testified for the prosecution in over 140 Texas capital trials; in 98% of those trials juries imposed the death sentence.[35] For his testimony Dr. Grigson charged $150/hour. In the 1980s he was in such high demand by prosecutors that he usually earned more than $150,000 per year.[36]

            Dr. Grigson even claimed the ability to predict the future dangerousness of defendants he had never interviewed, simply by responding to hypothetical questions put to him by prosecutors. He has a certain folksy charm, and his medical credentials easily impress juries: “You couldn’t help but listen to what he was saying. He’s a doctor. He had a lot of influence on what we decided,” said Myrom Grisham, a juror in one case in which Dr. Grigson testified. The defendant in that trial, David Wayne Stoker, was later executed although doubts about his guilt persisted.[37]

            Dr. Grigson would classify defendants as to their dangerousness. On a scale of one to ten, with ten representing the worst kind of sociopath, he would often rate defendants as twelve, thirteen, or fourteen. Despite the ambiguity of the guesswork, Dr. Grigson spoke with certainty: Bernard Amos would “most certainly” be violent in the future, James Clayton was “absolutely certain” to be a repeat offender. Asked if William Little would be violent again, Dr. Grigson replied, “It’s an absolute. It’s not 99.5 or 99.8. It’s absolutely 100 percent sure.” But in a somewhat unprofessional oversight, Dr. Grigson never interviewed Mssrs. Amos, Clayton, or Little.

            So how accurate were Dr. Grigson’s forecasts? According to one study Dr. Grigson was correct exactly 0% of the time. In 1988 First Assistant District Attorney Norman Kinne of Dallas County studied Dr. Grigson’s predictions to determine their accuracy. The study traced 11 former death row inmates who had their sentences commuted to life in prison or long term imprisonment. Although Dr. Grigson had described them all as inevitably violent sociopaths, not one had committed an act of serious violence after their convictions.[38]

            Texas criminal defendant Doyle Boulware was described by the good doctor as having a “sociopathic personality disorder” that was “as severe as one can become.” His behavior would become “increasingly worse” and could never be improved: “This is not a passing fancy or a – growing pains or anything of this sort. This is a – it’s fixed. It’s been there for years. It will remain there for years . . . There is absolutely nothing in medicine or psychiatry that modified, changed in a beneficial way [sic].” Mr. Boulware, said the good doctor, would “certainly” kill someone “if there is any way at all he was given the opportunity to.” Mr. Boulware was sentenced to death and imprisoned, and his sentence later commuted. Over the next twelve years he had only one disciplinary report for an unarmed fistfight. Otherwise, he was a State approved trustee who “causes no problems” and was evaluated positively for parole review.[39]

            Dr. Grigson also evaluated Randall Dale Adams for future dangerousness; Mr. Adams had no criminal record prior to his capital trial. Dr. Grigson described him as having a “sociopathic personality disorder,” claiming he was “at the very extreme, worse or severe end of the scale.” “Nothing known in the world today” could help to change Mr. Adams, he testified. Upon incarceration, Mr. Adams served as an “ideal inmate” and garment worker with no disciplinary record. He was found to be factually innocent of the crime and released, and has not been convicted of any crime since.[40]

            In 1983 the American Psychiatric Association condemned predictions of future dangerousness as unscientific and inaccurate. The APA cited the best scientific studies which have found that psychiatrists are wrong more often than right when they give such opinions.[41] It reprimanded Dr. Grigson twice in the 1980s, and finally expelled him in 1995. He was also expelled from the Texas Psychiatric Association. Nevertheless, he continued to testify in capital trials, although his notoriety made him less popular with prosecutors.

            Dr. Grigson testified in 16 cases in which inmates were put to death by Governor Bush. The Governor (now President) has never commented on the practice.

            The Mother of All Hanging Juries. In the early 1990s the state of Texas was having frequent problems with federal courts overturning Texas criminal court verdicts. In order to correct this situation, in 1995 the Texas legislature enacted Article 11.071 of the Texas Code of Criminal Procedure, and Gov. Bush signed it into law. The purpose of the bill was to speed up executions by demanding direct (evidentiary) appeals and habeas corpus (constitutional rights) appeals at the same time, rather than sequentially as they had occurred in the past. The bill also established minimum standards of legal representation in the appeals process in order to avoid federal interference (many of the verdicts had been overturned on the basis of incompetent legal representation). According to 11.071 appeals attorneys must be “competent” and the Court of Criminal Appeals (CCA) is responsible for ensuring that competence.

            In some ways the bill was successful – inmates on death row in Texas are executed much faster now. But in other ways it failed – the soon-to-be-executed still don’t receive adequate legal representation.

            The problems started right away. Although the legislature commanded the Court of Criminal Appeals (CCA) to hire competent attorneys, it gave them half the money they needed. So the CCA put a cap on appellate lawyers’ fees of $7,500. A 1993 study had shown that the average Texas lawyer spent approximately 350 hours representing death-sentenced Texas inmates in post-conviction proceedings. The federal government estimated that such appeals required several hundred to several thousand hours. Given the amount of time a legitimate capital appeal demands, the $7,500 cap would have compelled the lawyers to work for impossibly low wages, given their overhead and staff costs.

            It immediately became apparent that Texas couldn’t get “competent” attorneys to take appeals cases for such low compensation. But fortunately, 11.071 hadn’t defined “competent,” so the CCA did. It began appointing counsel, some of whom had less than two years of experience. With such inexperienced attorneys in such a complicated and consequential field of law, the system became plagued by incompetent representation once again. So this time the CCA lifted the $7,500 cap but soon ran out of money. The Texas legislature gave it some more, and the CCA set a new cap of $25,000 which was a nice improvement but far from the $100,000 to $200,000 that a private law firm would charge.[42]

            Once again, due to the substandard pay, there weren’t enough lawyers interested in taking appeals. Without lawyers to handle the mandatory procedures, Texas couldn’t execute its huge backlog of convicted inmates. So the CCA came up with a plan: draft the lawyers needed. Compel them to argue death penalty appeals. By December 6, 1996 it had forced 48 lawyers to take cases. The State Bar of Texas protested, saying that the lawyers lacked the experience, expertise, time, or resources to handle the appeals properly. But the CCA was undeterred: “We were in a drastic situation,” said CCA Judge Frank Maloney. “We had to bite the bullet and do it.”

            Actually, it was the drafted lawyers who had to bite the bullet and do it. Five immediately filed motions to be removed from their cases based on lack of experience. Others protested that they would either have to accept an unreasonably low wage per hour or else do a bad job. According to Keith Hamilton, there just wasn’t enough money to pay the lawyers for their work. He explained, “You’re asking, ‘Will you undertake one of the most momentous cases you can, in an area of the most complex litigation that exists, and do the virtually impossible for no money?’” He pointed out that freeing factually innocent inmates such as Clarence Bradley and Randall Dale Adams on the grounds of actual innocence took more than a decade of work by a team of good lawyers and cost close to $1,000,000.[43]

            Throughout all this, as defense attorneys operated on extremely low budgets, district attorneys in Texas had (and have) virtually unlimited resources to support the prosecution. To some critics, a system in which defense lawyers are on shoestring budgets and prosecution lawyers are flush with cash seems slanted in favor of the prosecution.

            Why does it take so much time and money to adequately appeal a death-penalty conviction? Because at minimum, a competent appeals attorney must: 1. Perform a thorough investigation of the case, including the thousands of pages of defense, prosecution, and police documents, as well as relevant information from the defendant’s history. 2. Bring in new evidence to show violations of her client’s rights. 3. Plead every possible claim: any objection that can legitimately be raised should be raised, since an objection which is not raised can never be raised again.[44]

            An appeal filed by a properly paid, experienced criminal attorney will generally be well over 150 pages long. In a study of death-row appeals under 11.071 by the Texas Defender Service, Texas appeals rarely met this standard. Instead, 17.5% were 15 pages long or less, and 35% were 30 pages or less. Although it would take five pages just to note proper procedural motions, 7% of the applications were under ten pages long. A law clerk for the Court of Criminal Appeals commented, “And I’ll look through a [habeas] writ, and I’ll just think, ‘Is this all I’m getting because there wasn’t anything else, or is this all I’m getting because someone wasn’t putting a lot of time into it?’”[45]

            Robert Earl Carter was on death row for a heinous multiple murder; there was little doubt as to his guilt. On October 6, 1997 his CCA-appointed appeals attorney filed an appeal only three pages long. The habeas writ (constitutional rights appeal) merely regurgitated the arguments of the prior direct appeal, all of which had been rejected by the CCA. It also denied the need for an evidentiary hearing, which is absolutely necessary to any legitimate appeal. The lawyer failed to sign his work. Nevertheless, the CCA denied relief, Gov. Bush denied any reprieve, and Mr. Carter was executed on May 31, 2000.

            The point here isn’t that Mr. Carter was innocent of the crime or that he was a good, law-abiding citizen mistakenly swept into some horrible frame-up. The point is that he was denied due process. The CCA appointed Robert Earl Carter an incompetent attorney, then rejected the incompetent appeal written by the incompetent attorney it appointed, and sent Mr. Carter to die. The injustice of the practice has not gone entirely unnoticed. Former Court of Criminal Appeals Judge Charles Baird noted, “We’ve appointed some absolutely terrible lawyers. I mean lawyers that nobody should have, much less somebody on death row on his last appeal.”

            In the case of Ricky Kerr the CCA once again appointed an incompetent lawyer who wrote an incompetent appeal that the Court rejected in order to send him on to execution. Mr. Kerr had been convicted of the murder of his landlord and her son; there was little doubt as to his guilt. His appeals attorney, Robert McGlohon, completely messed up the habeas appeal where new evidence can be entered because he thought that new evidence couldn’t be presented until after the direct appeal, as is the case in most jurisdictions. Actually, 11.071 states that new evidence must be presented before the direct appeal is over. Since Mr. McGlohon didn’t know that’s what habeas writs were for, he filed an appeal protesting the details of 11.071 and nothing more.[46]

            The mistake was understandable. Mr. McGlohon was in such poor health that he hadn’t been able to practice law consistently for several months. He had never tried or appealed a capital case and had only begun practicing law three years earlier. The CCA knew this when it appointed him to represent Mr. Kerr, but disregarded his lack of experience and ill health and appointed him anyway. Even prosecutors were not opposed to Mr. Kerr receiving a new lawyer.[47] Still, without remorse, the CCA denied his ineffectual appeal and set Mr. Kerr’s execution date.

            In a dissent written with regard to Mr. Kerr’s case, Court of Criminal Appeals Judge Morris Overstreet wrote, “Must applicant suffer the ultimate punishment, death, because of his attorney’s mistake? According to a majority of this Court, yes, he must . . . For this Court [to] refuse to stay this scheduled execution is a farce and travesty of applicant’s legal right to apply for habeas relief. It appears that this Court, in approving such a charade, is punishing applicant, rewarding the State, and perhaps even encouraging other attorneys to file perfunctory ‘non-applications.’ Such a ‘non-application’ certainly makes it easier on everyone – no need for the attorney, the State, or this Court to consider any potential challenges to anything that happened at trial . . . I do not know what the majority thinks is going to happen to applicant, but he does have an imminent execution date set. If applicant is executed as scheduled, this Court is going to have blood on its hands for allowing [it]. By this dissent, I wash my hands of such repugnance.”[48]

            Federal Judge Orlando Garcia said the appointment of such an inexperienced appellate attorney “constituted a cynical and reprehensible attempt to expedite [Kerr’s] execution at the expense of all semblance of fairness and integrity.”[49] He granted Mr. Kerr a stay of execution and demanded that he receive a new appeal.

            In March 1993 Joe Lee Guy was the lookout for a burglary that went bad, resulting in the death of Larry Howell, 52. Strangely, the triggerman, Thomas Howard, and an accomplice, Ronald Springer, received sentences of life in prison. Mr. Guy, who had been outside during the time of the store robbery and never even saw Mr. Howell, was sentenced to death.

            What a difference legal counsel makes. Lubbock Attorney Richard Wardroup had had his license suspended five times by the State Bar of Texas before he took Mr. Guy’s case. He was also struggling with alcoholism and an addiction to cocaine. Every member of Mr. Wardroup’s defense team has sworn that he used drugs and alcohol during the trial, and his secretary has sworn that she and Mr. Wardroup snorted coke one day before Mr. Guy’s trial proceedings. Mr. Wardroup failed to have the gun used in the murder fingerprinted, which would have established that Mr. Guy was not the gunman. Establishing this fact of the case would have been helpful; the U.S. Supreme Court has established that it is unconstitutional to execute an individual for participation in a robbery in which a murder takes place, if the participant is not the actual murderer.[50]

            Complicating matters further, the private investigator that Mr. Wardroup hired for the case became interested in the murder victim’s mother, and eventually became the executor of her estate. This generated a small conflict of interest.

            After Mr. Guy was convicted, Mr. Wardroup was unable to handle his appeals since his law licence was suspended once again.[51] So a CCA-appointed attorney took over Mr. Guy’s appeals. The initial appeal was nine pages long and only raised four old points based on trial records; no new investigation had been performed, no motions beyond the existing legal records were made, no new evidence was presented, no proper habeas claims were made.[52] Unimpressed by the unimpressive work done by the unimpressive attorney they had appointed, the CCA simply accepted findings that were nearly identical with the prosecutor’s, rejected Mr. Guy’s appeal, and set an execution date.

            A large law firm, working pro bono, took over Mr. Guy’s case and filed an appeal that was over 100 pages long. He is currently in a second round of appeals, and has received a stay of execution.

            One may feel that, since the above defendants were probably guilty of their crimes, it doesn’t matter that their appeals process was a sham. But sometimes innocent people get convicted of capital murder as well, and if their appeals process is a sham, then a terrible mistake might be made. The purpose of the capital appeals process is to distinguish between guilt and innocence, and sham appeals can’t.

            As is clear in the case of Paul Colella. Mr. Colella was convicted of the 1992 double murder of two men vacationing on South Padre Island. Although he had a very strong alibi, he also had a very weak defense attorney. The case against him consisted of the testimony of a suspect in the crime, Anthony Randall “Red” Wilson, who avoided prosecution for the crime by agreeing to testify against Mr. Colella.

            Some people thought that Mr. Wilson might have committed the murders himself. It was almost uncanny how much he knew about the crime, and he was known to have been on the island that night. Curiously, the truck owned by the murder victims had been pushed into the water by another pickup – Mr. Wilson (the witness) owned a truck, but Mr. Colella (the accused) didn’t. Moreover, Mr. Colella’s wife testified that she was with him at the time of the murder at a bus station in Victoria, Texas, 240 miles from South Padre Island. A bus station attendant who had no connection to the Colellas corroborated her testimony.

            As the trial date neared Mr. Colella’s defense attorney recognized that he was too inexperienced to handle the case and asked for co-counsel; the request was denied by the judge. He asked for money for an investigator; the request was denied by the judge. He asked for more money for himself so that he could spend more time on the case; the request was denied by the judge. (He wasn’t even paid for his work until two years after the case, and then he was only paid $9,000 for 400 hours of work, barely enough to cover his overhead.) Not surprisingly, Mr. Colella was found guilty and sentenced to die.

            Mr. Colella’s appeal was handled by Edward Cyganiewicz. Mr. Cyganiewicz got permission from the trial judge and local prosecutor to file the writ of habeas corpus late, but the CCA decided to rigidly enforce the official deadline and rejected Mr. Colella’s appeal without reading it. It was only nine pages long anyway.

            An execution date was set for 1998. Judges J. Baird and J. Overstreet dissented not only because they thought Mr. Colella deserved a true appeal, but because they thought he was factually innocent of the crime. Judge Baird wrote, “After a painstaking review of the entire record, I am convinced the non-accomplice evidence is insufficient to corroborate the accomplice witness testimony. I would reverse the judgment of the trial court and order an acquittal. Judge Learned Hand once wrote that ‘our procedure has always been haunted by the ghost of an innocent man convicted. It is an unreal dream.’ I fear, in the instant case, that unreal dream is a reality.”[53]

            Of course, had everyone known Mr. Colella to be innocent, it still isn’t clear that would have done him any good, since there seemed to be some confusion in Texas as to who was responsible for pardoning innocent convicts. The CCA didn’t think that was its responsibility, but the Board of Pardons and Paroles (BPP) didn’t think that was its responsibility, either. “Actual innocence claims have to go through the [BPP] clemency process; that’s what its there for,” explained CCA Presiding Judge Michael McCormick. But Gerald Garrett, the Chairman of the Board of Pardons and Paroles disagreed, saying, “The Board is appointed to advise the governor on mercy, not to consider claims of innocence. The argument about guilt or innocence should rest with the courts.”[54] When the interviewer pointed out to him that neither the CCA nor the BPP were investigating whether death-sentenced inmates might be innocent, Mr. Garrett noted, “That certainly is a quandary.”

            Experienced criminal attorneys took over Mr. Colella’s case and filed a 212 page appeal with 1,000 pages of supporting exhibits. The appeal alleged prosecutorial misconduct including withholding evidence of innocence, perjury, inadequate defense, and violated rights. The state, faced with lost evidence and a new, vigorous defense team, decided to plea bargain. They offered him a sentence of 20 years with time served if he would plead guilty to the two murders. Although Mr. Colella continues to insist that he is innocent, he pled guilty in order to avoid any more interaction with the Texas justice system. It is unusual for a prisoner to get off of Texas’ death row by any means besides execution, but Mr. Colella did it. The fact that he was in all likelihood innocent of the crime certainly helped, although it offered no guarantees.

            El Paso taxi driver Nicolas Castanon was murdered in 1979. Two men whom witnesses had placed in his cab before the murder were arrested but never tried. Five months later 16-year-old Gerardo Olague came to police and implicated Cesar Fierro, saying that Mr. Castanon had given them a ride to Juarez, and Mr. Fierro had shot him on the way there. Mr. Olague had a criminal record, and there was no physical evidence linking Mr. Fierro to the crime. Mr. Fierro was arrested and, after a lengthy interrogation with no lawyer present, signed a confession. Solely on the basis of that confession and Mr. Olague’s somewhat inconsistent testimony, Mr. Fierro was sentenced to die.

            Accomplice testimony (the testimony of Mr. Olague) is inherently unreliable since the accomplice always seeks to downplay his role and culpability in the crime and place the blame on another; the judge instructed the jury of this in Mr. Fierro’s trial. Since accomplice testimony is held suspect, the confession became especially important in this case.

            But the circumstances under which the confession was obtained were somewhat troubling. Mr. Fierro claims that his mother and father-in-law were arrested by Juarez police and threatened with torture if he didn’t confess; this information was relayed to him by the El Paso police. To prove to him that his parents were in fact in custody, the El Paso police showed him two letters that he and a brother had written to them, which the Juarez police had secured in their raid on his parents’ house. Mr. Fierro claims that his parents were threatened with torture; specifically, that his father-in-law would be shocked with electrical current attached to his genitalia.

            At trial, Juarez and El Paso police denied any wrongdoing. But on appeal, a police report found by Mr. Fierro’s appellate attorneys showed El Paso police had lied when they claimed to know nothing about Mr. Fierro’s parents being held. District Court Judge Herbert Marsh determined that police had not told the truth and that there was a “strong likelihood” that Mr. Fierro’s confession had been coerced. He granted Mr. Fierro a new trial.

            The original prosecutor of Mr. Fierro stated in a sworn affidavit that he believed that El Paso and Juarez police had “colluded to coerce Fierro’s confession” and that he would not have prosecuted Mr. Fierro on the basis of Mr. Olague’s word alone, since it was inherently unreliable.[55]

            The state appealed to the CCA, and the CCA denied Mr. Fierro’s appeal for a new trial, saying that the coerced confession was harmless and that Mr. Fierro would have been convicted on the basis of Mr. Olague’s testimony alone. A dissenting judge wrote that the decision was ludicrous, explaining that a confession is “the most powerful piece of evidence” a prosecutor can offer, and that it was “totally inconceivable” that Mr. Fierro’s confession did not convince jurors of his guilt.

            Mr. Fierro’s appellate lawyers appealed to the federal courts, but Gov. Bush’s Texas argued that under the 1996 Anti-Terrorism and Effective Death Penalty Act he had missed his deadline, no matter how questionable his conviction was. The federal courts refused to even hear his case. In May of 2000 the U.S. Supreme Court refused to hear his case. Mr. Fierro remains on death row to this day.

            Numbing. Between 1976 and 1994 the CCA reviewed more than 600 death penalty cases and reversed the sentences or convictions in 125 of them, or about one in five. Since 1994 the court has considered nearly 300 capital cases and found reasons to reverse the sentences or convictions in just 11 of them, or 4 percent.[56] The reversal rate for state courts nationwide is 66%.[57] Conservative Florida has a 50% reversal rate.[58] Statistics alone would suggest that Texas risks executing innocent people, and that the CCA has little interest in avoiding this tragedy.

            It isn’t even clear that they closely examine the appeals they receive. In 2000 a defense attorney asked the entire CCA to step down after it became evident that they had issued a ruling on an appeal they hadn’t read. The Court’s ruling referred to testimony which had never even occurred in the trial, but was mistakenly anticipated in the prosecutor’s opening statement. This oversight suggested that the CCA had simply read the prosecutor’s opening statement and regurgitated it as the Court’s findings. A few months later the Court issued a revised ruling without comment.[59]

            Star Chamber. The court of last resort for death-sentenced felons in Texas is the Texas Board of Pardons and Paroles (BPP), operating in tandem with the Governor. The Governor of Texas cannot grant a pardon without the recommendation of the BPP, and a BPP-recommended pardon is only effective with the signature of the Governor. The Governor can grant a 30-day reprieve to a condemned inmate and ask the BPP to consider (or re-consider) a pardon, but acting alone the BPP cannot grant a pardon; it can only recommend one to the Governor.

            It rarely does so. Of the 206 pleas for capital clemency received by the BPP between 1990 and 2000,[60] the BPP granted commutations in only two cases, one involving perjury by an expert witness and the other involving a false confession. During Gov. Bush’s tenure the Board granted only one of 68 requests for capital clemency.

            Some people accuse the Board of meeting in secret; actually, it doesn’t meet at all. In a process sometimes criticized as “death by fax,” its 18 members (each of whom is paid $75,000 per year, and all of whom are appointed by the Governor with Senate approval)[61] peruse thousands of pages of relevant information at seven satellite offices around the state and then fax in their votes without comment or elaboration. There is no debate and no transparency. “That doesn’t make any sense,” says state Rep. Glenn Lewis. “Nobody can determine how they make their decisions.”[62]

            According to Texas law, it’s not entirely clear that all this is legal. Article IV Section 11 of the Texas Constitution establishes the Board and requires it to “keep records of its actions and the reasons for its actions.” But no reasons are ever given – the BPP holds no hearings, offers no arguments, allows no challenge of erroneous evidence, allows no public commentary, and issues rulings without opinions. So the Board ends up in a rather ironic situation: while deciding if alleged lawbreakers are deserving of mercy, it breaks the law. As one former judge on the Court of Criminal Appeals stated, “The Board’s refusal to follow the law with apparent impunity is outlandish.”[63] In 1998 Federal District Court Judge Sam Sparks called the BPP’s procedures “appalling” and held that they only barely met the minimal procedural safeguards required by the United States Constitution.

            Gov. Bush often used the BPP to place some distance between himself and the executioner’s needle, pointing out in the case of Karla Faye Tucker that “despite the call being sounded around the country and the world, I could not convert Karla Faye Tucker’s sentence from death to life in prison.”[64] That’s technically true, but not practically true.

            Gov. Bush did not mention that he did have the power to order the Board to conduct an investigation if there is a question of innocence or a denial of due process or any other matter that concerns him. He also could have instructed the BPP to hold a hearing or listen to the appeal of a death row inmate. He could have told the Board that he wants it to reconsider a rejection of clemency. And in the end Gov. Bush probably had the power to get any commutation he wanted. Board members tend to be thankful for their $75,000 jobs and respect the Governor’s wishes. When Gov. Bush decided that Henry Lucas shouldn’t be executed he told the Board this and the Board voted not to execute him. He chose not to do so with Ms. Tucker.[65]

            Gov. Bush always claimed to take the death penalty process very seriously. Campaigning for President in Los Angeles, he said, “I analyze each case when it comes across my desk, looking at innocence or guilt and whether or not the person had full access to the courts.”[66] His campaign spokesperson, Mindy Tucker, confirmed his statement, saying, “He thoroughly reviews every death-penalty case.”[67] In A Charge to Keep, the Governor wrote, “Making decisions is what governors and chief executives do. I try to do so thoroughly, thoughtfully, and fairly. I have assembled a top-quality staff that gets me accurate information and comprehensive briefings. I base my decisions on principles that do not change.”[68]

            But schedules released from the Governor’s Office revealed that Gov. Bush typically spent about 15 to 30 minutes reviewing each death penalty case, which by that time amounted to thousands of pages of paper. The brevity of his investigation raised questions about his alleged “thoroughness.”[69] And a Governor’s Office memo secured by Doug Magee under the Texas Public Information Act (the release of which was vigorously resisted by the administration) questions how accurate clemency reports prepared for the Governor were. The memo, which addressed the case of David Wayne Spence, contained a number of inaccuracies, distortions, and errors.

            The Governor received the memo only hours before Mr. Spence’s scheduled execution. It had been prepared by deputy counsel Stuart Bowen. The report simply regurgitated the prosecutor’s argument as the “facts” of the case. It described new evidence of Mr. Spence’s guilt as “publicity.” It stated that the prosecution had turned over all information in the case to the defense, although the prosecution had admitted that it hadn’t. Ramon Salinas, the lead detective in the case, had publicly stated that he believed Mr. Spence to be innocent of the murders. The memo claimed that he had been dismissed for incompetence, which wasn’t true. All testimony in favor of Mr. Spence’s innocence which had been offered in appellate hearings, even that which was backed by evidence, was dismissed as “tertiary.”

            It was based on this information that Gov. Bush decided to execute Mr. Spence. Unfortunately, much of the information was either wrong or distorted. Mr. Spence’s final prospect for clemency, the Governor, would not question even the most questionable capital cases.[70]

            Doubts. Illinois reinstated the death penalty in 1977 after the U.S. Supreme Court temporarily suspended it. By 2000, 23 years later, 13 factually innocent people had been freed from Illinois’ death row, and only 12 had been executed. More inmates were leaving death row by way of innocence than by way of lethal injection. Conservative Republican Governor George Ryan began to have concerns. A Chicago Tribune investigative series that examined each of the state’s nearly 300 capital cases found trials riddled with bias and error, incompetent legal work by defense lawyers, and dubious testimony by jailhouse snitches in 50 cases.

            Problematically, the factually innocent condemned inmates weren’t being exonerated by the system; they were freed by outsiders working on their cases. Northwestern University professor Lawrence Marshall freed two. In the case of Orlando Cruz, his work resulted in the freeing of an innocent man, the prosecution of law enforcement authorities who charged and prosecuted Mr. Cruz, and the identification of the real killer. Four black men were exonerated of the rape and murder of a white couple. They were freed through the work of journalism professor David Protess and his students at Northwestern University. The students also located the actual perpetrators of the crimes who proceeded to confess and are now serving life sentences. Professor Protess and his students also succeeded in freeing Anthony Porter from death row on grounds of actual innocence. Mr. Porter had come within two days of being executed. And in fact he would have been executed, but his IQ was so low that questions of constitutionality were raised.

            So conservative Republican Governor Ryan decided to issue a moratorium on executions in his state in order to allow for further study.[71] He declared that, with regard to the death penalty, “I cannot support a system which, in its administration, has proven so fraught with error and has come so close to the ultimate nightmare, the state’s taking of innocent life.” Due to this possibility, he continued, “Until I can be sure that everyone sentenced to death in Illinois is truly guilty; until I can be sure, with moral certainty, that no innocent man or woman is facing a lethal injection, no one will meet that fate.”[72]

            No doubts. Despite the overwhelming problems with death penalty procedures in Texas, Governor Bush had no such doubts. When asked about Gov. Ryan’s moratorium, Gov. Bush commented, “Maybe they’ve had some problems in their courts. I’ve reviewed every [Texas] case . . . and I’m confident that every case that has come across my desk, I’m confident of the guilt of the person who committed the crime.”[73] Throughout his campaign, as attention was drawn to his aggressive use of the death penalty, the Governor consistently reiterated his confidence in the system: “As far as I’m concerned, there has not been one innocent person executed since I’ve been governor.”[74] In other interviews he stated that he was “absolutely confident” that the 125 inmates executed on his watch (up to that point) had all been guilty, since all had received “full access to the courts” and “full access to a fair trial.” On NBC’s “Meet the Press,” he even expressed pride in having established a “rational system of justice” in Texas, pointing out proudly that “under his watch” [at the time of the interview] Texas had executed 125 people.[75]

            Doubts again. The citizens of Texas didn’t share Gov. Bush’s certainty about the death penalty. In a 2000 Scripps Howard Texas poll, 57% of all Texans said they believed that Texas had executed an innocent person. Moreover, 46% of all Texans believed that Gov. Bush himself had presided over the execution of an innocent person.[76] To former Texas Court of Criminal Appeals Judge Charles Baird, the reason was obvious: “We’ve had such an enormous amount of executions that it’s difficult to believe that the system worked flawlessly in all of those cases. I don’t share Governor Bush’s confidence in the judicial system. When I was on the court, I saw a lot of faulty trials from a lot of overzealous prosecutors and police officers . . .”[77]