CHAPTER ELEVEN: WAS IT REALLY HIS FAULT?

 

           

            Gov. Bush’s 2000 Presidential campaign brought a lot of scrutiny to Texas’ death penalty system, and this scrutiny heightened with the controversial execution of Gary Graham. His innocence seemed so probable that protests arose all across the country and in much of the Western world. Celebrities, European parliaments, civil rights organizations, and the media drew attention to the Graham case, much to the consternation of the Bush campaign. The candidate found himself in a bit of a pickle: execute Mr. Graham despite strong evidence of his innocence and appear insensitive to issues of racism and injustice, or grant him a reprieve and ask the Board of Pardons and Paroles for a commutation, in which case he might appear soft on crime to his right-wing supporters.

            Gov. Bush chose to proceed with the execution of Mr. Graham. At the same time, his campaign staff began to distance him from Texas’ high rate of capital punishment. State operatives suddenly began pointing out how little control over the death penalty process was granted to the Governor, how he was caught up in a system that he didn’t create, and how the high rate of executions under Governor Bush were merely the result of a backlog that accumulated before he even took office.[1] Critics alleged that the Governor had inherited a bad system and made it worse.

            In order to determine Gov. Bush’s involvement in and influence over the Texas death penalty, it is necessary to look at his candidacy for Governor and tenure as Governor.

            Running on death. George W. Bush public support for the death penalty began in 1994 during his campaign to unseat popular incumbent Governor Ann Richards. Candidate Bush had a tough sell: under Gov. Richards crime had gone down 18 percent.[2] Also, by the time of the campaign Gov. Richards had presided over 42 executions, the most of any Texas governor since the death penalty was reinstated there. And she had only granted two reprieves.

            But that wasn’t enough for candidate Bush. If Gov. Richards was tough on crime, then Gov. Bush would be tougher. He promised more executions faster if he was elected, dismissing Gov. Richards’ promise to accelerate executions as “all wind up and no delivery.”[3]

            It was well known that prior to his campaign six factually innocent men had been released from Texas’ death row after an average stay of seven years. One had stayed eight years and another thirteen.[4] So Mr. Bush’s desire to speed up executions raised a crucial question: If the average stay of an innocent man on death row is seven years, and if you want to make capital punishment “swift and sure” (presumably faster than seven years), then how will you ensure that innocent people aren’t executed?[5] Candidate Bush never answered this question, as candidate or, having won the election, as Governor.

            Quickening death. One of George W. Bush’s first actions as Governor of Texas was to sign legislation which would kill more people faster. It often takes many years to execute a condemned prisoner. Death penalty proponents argue that the process takes so long that the death penalty loses its effectiveness as a deterrent. They also claim that delays are caused largely by endless appeals based on frivolous grounds.

            Closer examination of the process, however, lays most of the blame for execution delays on appellate courts which often set hearing dates many years after an appeal is filed. Texas attorney Randy Shaffer had to wait five years for a ruling on an appeal that he filed for a condemned client. In Clarence Brandley’s case, attorneys had to work for nine years to establish his factual innocence, largely due to appellate court delays. (The entire time, of course, innocent Clarence Brandley waited on death row.) Randall Dale Adams spent twelve years on death row, and came within three days of execution, before his release – largely due to hearings delayed by appellate courts.

            Still, controversy rages about the cause of these execution delays. To death penalty supporters, they unnecessarily prolong murderers’ lives. To death penalty opponents, they allow for evidence of factual innocence to be uncovered. To the guilty on death row, they may very well serve as tools for manipulation. But to the innocent, death penalty delays are often their only hope for survival.

            Nevertheless, the Texas Legislature passed and Gov. Bush signed Article 11.071 (see Chapter Nine: A Model for the Nation) which was intended to end death penalty delays. Some Texas lawmakers called it the “speed up the juice” law.[6] It did so by uniting the direct appeal (evidentiary) and habeas corpus (constitutional) proceedings so that they would take place at more or less the same time. It also limited the grounds of appeal.[7]

            The previous appeal process had in fact occasionally helpful in weeding those pesky innocent people out of death row, although more innocent-but-condemned inmates were freed by outside intervention than the Texas criminal justice system. Having the habeas petitions after the direct appeal helped the plaintiff to gather new evidence, especially regarding police or prosecutorial wrongdoing, if there was any. It also allowed the plaintiff to argue on grounds of ineffective counsel during the direct appeal, a legitimate right since, in Texas, there often was ineffective counsel during direct appeal. Finally, the delay of having the two sequentially rather than concurrently allowed time for evidence of factual innocence to come forward. By demanding both appeals concurrently, the new law severely reduced the likelihood of discovering factual innocence on death row.

            Nevertheless, Gov. Bush was intent on fulfilling his campaign promise to speed up executions. He signed Article 11.071 and enforced it throughout his tenure.

            Don’t jail them . . . kill them. Before her execution, Karla Faye Tucker wrote a letter to Gov. Bush asking that her sentence be commuted to life in prison so that she could continue her Christian ministry. She waived any possibility of parole. Gov. Bush denied her request for commutation and Ms. Tucker was executed.

            Death penalty supporters had opposed the commutation of her sentence because they feared she might be offered parole by a later Governor (with the Board of Pardons and Paroles) for good behavior. Then, she would walk free again, something her victims never had a chance to do.

            So why didn’t Ms. Tucker ask that her sentence be commuted to life in prison without possibility of parole, a request which would have assured her detractors that she would never be released? Because that sentencing option does not exist in Texas. In murder trials, juries must choose between a sentence of life in prison (with eventual possibility of parole) and death. Texas is one of only three death penalty states in the country that does not have the option of life in prison without possibility of parole.[8]

            The lack of a “life without parole” option encourages the sentence of death. Life without parole necessitates at least 40 years in prison, and then parole only becomes legally possible, not probable. But the Texas Constitution specifically forbids judges from instructing juries as to how long a murderer sentenced to life must spend in jail. Juries are simply not allowed to know that a life sentence will result in a minimum of 40 years in jail, and probably more.[9]

            At the same time, outraged media pundits have given Texas citizens completely distorted ideas as to how long a lifer will actually spend in jail. Frightened by overzealous prosecutors who describe streets swarming with young murderers released from prison, Texas jurors often choose a death sentence simply because they fear that a sentence of life in prison means that a killer will be back on the streets in no time. One juror commented, “We had to sentence him to death. If we had given him a life sentence, he would have been back on the streets in four or five years.”

            In 1998, State Senator Eddie Lucio sought to correct this problem by introducing the option of life in prison without possibility of parole into the Texas law books. Polls revealed that a majority of Texans supported the change.[10]

            The addition of a life without parole option met immediate resistance from the Governor’s Mansion. Gov. Bush expressed his reservations about the measure, noting that Texas already had a “near life-without-parole option” in its life sentence, since that mandated a minimum of 40 years. He didn’t note that jurors couldn’t be told this. Gov. Bush also expressed some concerns that a life without parole option would “weaken the death penalty,” since it might be preferred by juries too squeamish to condemn another human being to death.[11]

            Faced with resistance from the Governor, Sen. Lucio’s bill died in session. To this day, Texas lacks the sentencing option of life in prison without possibility of parole, a lack which often necessitates a death sentence where otherwise life incarceration would adequately protect the public from murderers.

            Guarding the Star Chamber. As Texas executed more and more inmates, its Board of Pardons and Paroles came under increasing scrutiny. The Board was criticized for its secretive proceedings, absence of deliberation or debate, refusal to give reasons for its decisions, increasing harshness, and tendency to vote by fax. The situation was worsened when Texas’ death chamber was temporarily shut down by a federal judge who had reservations about the constitutionality of the state’s clemency process. Judge Sam Sparks wrote, with regard to the Texas Board of Pardons and Paroles, “It is abundantly clear the Texas clemency procedure is extremely poor and certainly minimal. Legislatively, there is a dearth of meaningful procedure. Administratively, the goal is more to protect the secrecy and autonomy of the system rather than carrying out an efficient legally sound system. The Board would not have to sacrifice its conservative ideology to carry out its duties in a more fair and accurate fashion.”[12]

            Concerned Texas legislators wanted to improve the process, and Texas State Representative Elliot Naishtat filed legislation to reform the system. The legislation would have required the Board to meet in public and justify its decisions, hardly unreasonable demands in an open, democratic society. Reminiscent of Karla Faye Tucker, the bill would also have required the Board to consider the rehabilitation of a prisoner as a mitigating factor in the clemency process.

            The reforms met with immediate resistance from the Governor’s mansion. Gov. Bush stated that there was nothing wrong with the current system and that a more open version could be flawed: “There may be a case made that having it in public is going to end up having another trial or a chance for people to rant and rail, a chance for people to emotionalize the process beyond the questions that need to be asked,” he said.[13] For these reasons, he continued, “It’s going to have to take an awfully compelling argument for me to support the change because I’m convinced that in every death penalty case I’ve reviewed the two major questions [regarding guilt and due process] have been answered satisfactorily by the Pardons and Paroles Board [sic] and by me and my legal staff.”[14]

            Facing opposition from the Governor, Rep. Naishtat’s legislation died in session. The Texas Board of Pardons and Paroles continued its closed proceedings, voting by fax, failing to discuss the cases at hand and refusing to explain its decisions.

            Executing the mentally retarded. Texas was having a lot of trouble getting Johnny Paul Penry executed. Mr. Penry was undoubtedly guilty of a senseless murder, and he was undoubtedly mentally retarded. Department of Social Services records from his infancy and childhood revealed a history of physical and emotional abuse, and school records indicated an extremely low IQ, never measuring above 60. Nevertheless the state of Texas, in a budget cutting measure, threw people like Mr. Penry onto the streets in an effort to cut budgets and taxes. The result was a brutal killing and Mr. Penry’s entry into the Texas judicial system.

            The Texas judicial system condemned Mr. Penry to death despite his long history of physical abuse and mental retardation. The case immediately became internationally notorious. As human rights groups, religious denominations, and foreign states registered their opposition to Mr. Penry’s execution, some Texas legislators also began to develop qualms about executing mentally retarded citizens. Texas State Senator Rodney Ellis introduced a bill which would ban executions of the mentally retarded: “We do not execute children in Texas; we should not execute those that have the mental capacity of a child,” he argued. “The ultimate penalty should be reserved for those that can clearly comprehend why they are going to die. It is time for Texas to do the right thing and stop executing the mentally retarded.”[15]

            In many ways the bill was quite strident. It substituted a sentence of life in prison without possibility of parole for the death penalty. It set the cut off point for mental retardation at 65, five points lower than the standard cut off point of 70. And it demanded that the defendant establish a lifetime of mental retardation through school and Department of Social Services records, so that murderers wouldn’t all of a sudden “develop” mental retardation after their arrest.

            Opponents of the bill argued that Texas already safeguarded the mentally incompetent from execution. But proponents argued that the case of Johnny Paul Penry, and others, proved that anyone in Texas could be executed, no matter how mentally retarded or mentally ill.

            The bill showed promise and had gained some momentum in the legislature. Then Governor Bush registered his opposition to it. Faced with such an emotionally charged, legally complicated, and morally profound issue, Texans may have expected a serious explanation of his position from the Governor. None was forthcoming. “I like the law the way it is right now,” Gov. Bush said. The Governor’s staff avoided publicly muscling the bill, but allegedly tried to “slow it down” behind the scenes.[16]

            Strangely, Gov. Bush’s opposition to the bill didn’t appear to be a political necessity at all. In a 1988 poll, 86% of Texans supported capital punishment, but 73% opposed execution of the mentally retarded.[17] Apparently Bush opposed excluding the mentally retarded from capital prosecutions for personal rather than political reasons.

            The bill died in session. Speculation began to arise that the Legislature was deliberately killing bills (such as the Board of Pardons and Parole reforms, the life without parole sentencing option, and a ban on executing the mentally retarded) which might embarrass the Governor in his campaign for President. In any event, another reform of Texas’ death penalty had been stifled and the mentally retarded remained vulnerable to execution.

            Nevertheless, the story did receive some coverage in the national media, and came to a head while Gov. Bush was running for President. When told that several states had banned the execution of mentally retarded inmates, Bush said, “So do we, in Texas.”[18] He said this only hours before Oliver Cruz, with an IQ of 64, was executed.

            Thou shalt not have competent legal defense. Texas’ criminal justice system, in which elected judges appoint defense counsel, is inherently rife with conflicts of interest. If a heinous crime occurs in a judge’s jurisdiction, and if that judge desires re-election, then it will behoove that judge to secure a conviction in the case of the heinous crime. The easiest way to secure a conviction is to appoint the defendant incompetent counsel. That way, the defendant is found guilty, the case is closed, the judge gains a reputation as a law and order type, and re-election is assured.

            The counsel appointed to defend such clients often have quite a lucrative opportunity. On the one hand, their per hour wages would be terribly low if they were to put in the time needed to wage a full defense. On the other hand, if they more or less blow off the case and just show up in court they can end up making a lot of money quickly, with very little time investment. In addition, their cooperation with the prosecution may very well please the judge, who will then appoint them to more capital cases, so long as they lose. Recall the phenomenon of Ronald Mock, Esq. (see Chapter Seven: Did He Execute Anyone Who Was Innocent?), who lost sixteen of the nineteen capital cases he was assigned, including that of Gary Graham. Mr. Mock was disciplined five times by the Texas Bar and served jail time after being held in contempt for mishandling criminal proceedings.[19] Nevertheless, he continued to receive capital cases from judges, to the point where he became one of the top earning court-appointed lawyers in Houston, making by his own estimation $120,000 to $130,000 a year.[20]

            The claim that elected judges are too biased to appoint competent defense counsel has been supported Texas judges themselves. Two-thirds of Texas judges responding to a survey admitted appointing attorneys who needed supplemental income. More than a third of the judges reported they had given appointments to retired attorneys short on cash. In campaign years, certain judicial candidates will actually tout their efficiency in dispensing with death penalty cases.[21]

            In 1993 the Texas Bar Association commissioned the Spangenberg Group, a research organization specializing in criminology, to do a study of the capital defense system in Texas. The conclusions were not reassuring to those Texans who were interested in a just justice system. The Spangenberg report concluded, “We believe, in the strongest terms possible, that Texas has already reached the crisis stage in capital representation and that the problem is substantially worse than that faced by any other state with the death penalty . . . The situation in Texas can only be described as desperate.”[22]

            Certain legislators became concerned about the problem and sought legislation to improve the legal representation of poor defendants. Texas State Senator Rodney Ellis introduced Senate Bill 247, which would have required appointment of counsel to indigent defendants within 20 days of the defendant’s request for counsel, allowed rural counties to band together and establish regional public defender offices with attorneys specializing in criminal defense, and giving county commissioners the responsibility to establish the procedures governing the appointment of counsel. This final aspect of the bill would have deprived Texas judges of their appointment powers on the grounds that they often based their decisions on personal or political factors.[23]

            The bill passed the Texas House and Texas Senate unanimously. That is, not a single Texas Representative or Texas Senator, Republican or Democrat, opposed improving the legal representation of poor criminal defendants in Texas.

            Gov. Bush vetoed the bill, arguing that “judges are better able to assess the quality of legal representation.” He did not mention that his gubernatorial campaign had received a large contribution from the judges’ lobbying group. Nor did he offer any alternative plan to improve the legal representation of poor defendants in Texas.

            Not even a pause in the killing. Following Illinois Gov. George Ryan’s decision to issue a moratorium on executions, pressure began to rise on Texas Gov. George Bush to issue a similar moratorium. In March 2000 members of the Texas Criminal Defense Lawyers Association, flanked by freed (and factually innocent) death row inmates Clarence Brandley and Randall Dale Adams, asked for a moratorium until Texas’ capital defense system could be improved. “Texas, like Illinois, has a record of convicting innocent people and putting them on death row,” said a spokesperson for the organization. “The Texas system is fraught with error, and had the changes in the current law been applicable to the cases of Mr. Adams and Mr. Brandley, both of them would have been executed before their claim of innocence could be established.”[24]

            Several months later, after a report condemning Texas’ capital punishment system was issued, U.S. Representative Ciro Rodriguez (D-Tex) and former Bexar County prosecutor Sam D. Millsap, Jr. issued a similar call for a moratorium. “People’s lives are at stake,” Rep. Rodriguez said. “It’s serious enough to call a special (session). I just hope that after Nov. 7, he [Gov. Bush] decides to do something, if not before.”[25]

            But Gov. Bush saw no need for a moratorium. He responded to critics, “As far as I’m concerned there has not been one innocent person executed since I’ve become governor.”[26] Despite the release of seven factually innocent men from Texas’ death row over the previous two decades, no moratorium on the death penalty was issued (or requested of the Legislature) by presidential candidate Bush.

            Odds and ends. A number of other issues cast doubt upon the Bush Presidential campaign’s assertions that Gov. Bush was merely clearing a backlog of condemned inmates and not actively harshening the Texas death penalty. For example, in 1997 the Texas Supreme Court ruled that criminal records could be kept secret from the public. This ruling made it almost impossible to discover and free factually innocent inmates, since in many cases only the incompetent lawyers appointed by the state would ever have access to a defendant’s records. Journalists, human rights groups, documentary makers, and prisoner advocates were effectively barred from investigating questionable convictions. Had interested parties been denied access to the records of Clarence Brandley, Randall Dale Adams, Federico Macias, and Kerry Max Cook, all four men would in all likelihood have been executed despite their factual innocence.

            And who demanded that criminals’ records be kept from public hands? None other than Harris County District Attorney John B. Holmes, chief prosecutor for the most aggressive death penalty county in the country where, not incidentally, some of the most egregious misconduct by law enforcement officials and prosecutors had been uncovered.

            For 23 years citizens had had access to such records under the Texas Open Records Act, but no more. A bill was introduced to restore transparency to the criminal justice system but, unsupported by Gov. Bush, it died in session.[27]

            What else? When a Texas death row prisoner escaped from prison and drowned in 1998, all death row inmates were put on a 23-hour lock-down with a single hour a day outside of their cells for segregated recreation. Hobbies, crafts, socializing and attendance at worship services were all forbidden to the condemned inmates, and remained so throughout Gov. Bush’s tenure.[28] Enacting a new policy which critics described as voyeuristic, Gov. Bush’s Justice Department website began listing prisoners killed as well as their last meal.[29]

            Campaigning for the Republican nomination for President in 1999, Gov. Bush told Tim Russert of “Meet the Press” that he was proud of having established a “rational system of justice” in Texas.[30] This rational system of justice was one of the most severe in the world. In 2000 the People’s Republic of China led the world in capital punishment with 1,356 known executions.[31] The same year, Gov. Bush of Texas presided over 40 executions. Relative to their populations, that was a greater number of executions than China, and it may have been the highest number of executions per capita in the world. It was the largest number of executions by any U.S. state since 1930.[32]