CHAPTER FIVE: WAS THE DEATH PENALTY UNDER GEORGE W. BUSH RACIST?

 

 

            Personally, George W. Bush is not a racist. He seems to like most folks, and responds to them based on the content of their character rather than the color of their skin. He is willing to give anyone a fair shake, and recognizes excellence in people regardless of their background. His hospitality and professional courtesy are extended to all.

            Nevertheless, there is strong evidence of racism in the administration of the death penalty under Governor George W. Bush. One need not be racist in order to govern a racist system; one need only be blind to racism.

            The elephant in the room. Evidence of racism in the Texas criminal justice system, and especially in its application of the death penalty, had been accumulating for years, and continued to accumulate while Gov. Bush was in office. A study conducted by the Dallas Times Herald in the mid-1980s showed that the killer of a white victim was up to ten times more likely to receive a death sentence than the killer of a black victim.[1] A study conducted by the Dallas Times Herald in 1991 showed that, while the average sentence for a black man who raped a white woman was 19 years, the average sentence for a white man who raped a black woman was ten years. Law enforcement was quite lax for same-race rape: the average sentence for a white man who raped a white woman was five years, and the average sentence for a black man who raped a black woman was one year. (Technically, Texas’ anti-miscegenation laws were overturned by the Supreme Court in 1967.)

            The harsh prosecution of capital (murder) defendants is even more closely related to the race of the victim than the race of the perpetrator. A 2000 study of all Montgomery County, Texas murders between January 1, 1995 and December 31, 1999 found rampant selective prosecution; in other words, blacks were hit harder by prosecutors than whites, even for the same crimes. Although 31% of the homicides in that county were of non-white victims, none of these homicides earned a death sentence.

            Racial differentiation began during the investigation and arrest phase of the process. Murders of whites led to arrests in 92 % of cases, while murders of black led to arrests in only 58% of cases. Then, of those arrested, racial differentiation also appeared in the trial phase of the process. Although prosecutors tried only two cases with non-white victims, a full 90% of the cases involving white victims went to trial. Cases involving non-white victims were generally resolved through plea-bargaining, often resulting in remarkably lenient sentences.[2]

            The case for racial differentiation in capital cases is also supported anecdotally. There was an unsolved homicide involving a white woman who was killed along with her husband during the robbery of their home. This double murder generated front page newspaper articles which tracked the investigation, a search of the countryside on horseback, demands from the couple’s family that “no stone be left unturned,” expression from the community that “good people are deserving of no less,” and the promise of a homicide detective to pursue the case until “the day he retired.”

            On the other hand, the families of several black male murder victims did not receive such community support. Woody Arnsworth was also killed in a home-invasion murder, but his daughter said that the District Attorney’s Office treated her rudely, never even acknowledging her loss. Though she was told the police had a suspect, no search warrant had been issued as of three months after the crime. And though seven Latinos were murdered during the period of the study, only one arrest was made.[3]

            Statewide, University of Texas Professors Jonathan Sorenson and James Marquart have concluded that, all other things being equal, a Texan who commits the capital murder of a white person is five times more likely to be sentenced to death than a Texan who commits the capital murder of a black person.[4] Moreover, with the rarest of exceptions, whites in Texas do not receive death sentences for the capital murder of blacks. A 1980-1986 study showed that a white who committed the capital murder of a black during those years had, statistically speaking, zero chance of receiving the death penalty; but a black who committed a capital murder of a white stood a 25% chance of receiving the death penalty.[5]

            Texas has never executed a white person for the murder of a black person. The only whites on Texas’ death row for crimes that did not involve white victims were convicted of racist hate crimes, including two men convicted of the dragging murder of James Byrd and a member of the Aryan Brotherhood convicted of a racially-motivated stabbing in prison.[6] At the same time, 23% of those executed in Texas were black men convicted of murdering whites.[7]

            As of 1998 the homicide rate for black Texans was 18.7 per 100,000, for Latino Texans it was 9.6 per 100,000, and for white Texans it was 4 per 100,000. In other words, the death-by-homicide rate for blacks is more than four times what it is for whites. But between 1972 and 1998 80% of those executed in Texas were condemned for killing whites.[8]

            Such incriminating statistics are characteristic not only of the death penalty in Texas, but of the death penalty in the nation as a whole. The evidence was so conclusive that even Rev. Pat Robertson, a 1988 candidate for the Republican Presidential nomination and death penalty supporter, finally relented and in April 2000 voiced his opposition to the practice: “The death penalty has been administered in a way that discriminates against minorities and poor people who can’t afford high-priced attorneys.”[9]

            You know how dangerous those Hispanics are. Under the Texas capital sentencing statute, the “future dangerousness” of a capital defendant to society determines the punishment he or she will receive. The more dangerous they are, and the more likely to commit a crime in the future, the more eligible for execution. Such subjective determinations unfortunately allow quite a bit of racial prejudice to seep into the sentencing phase of capital trials. Texas juries tend to see white murderers as much more redeemable than black murderers.[10]

            Sometimes the prejudice is implicit and covert, but other times it is explicit and overt, as in the case of Victor Hugo Saldano. During his punishment phase clinical psychologist Walter Quijano testified that one factor used to establish Saldano’s “future dangerousness” was race (he was Argentinian). Dr. Quijano argued that there is a correlation between race and violent behavior, as evidenced by the disproportionate numbers of black and Hispanic men in prison.

            Mr. Saldano appealed his death sentence, arguing that such race-based testimony was illegal. The Texas Court of Criminal Appeals ruled that, because Mr. Saldano’s lawyer had not objected to the race-based testimony at his trial, Mr. Saldano could not raise the issue on appeal. They voted 7-2 to allow the execution to proceed.

            Mr. Saldano appealed to the U.S. Supreme Court when suddenly Texas Attorney General John Cornyn voiced his opposition to the Court of Criminal Appeals’ ruling and conceded error on the part of the state. With this concession, the Supreme Court vacated Mr. Saldano’s death sentence and sent him back to Texas for a new sentencing hearing by the Court of Criminal Appeals, which had of course allowed his execution to proceed in the first place. This ruling also vacated the death sentences of six other death row residents, all of whom had race-based testimony offered against them by Dr. Quijano.[11] Eleven Latin American nations, somewhat disturbed that Texas was now executing Hispanics on the basis of race, filed friend-of-the-court briefs asking that Mr. Saldano be given life in prison instead of the death penalty (his guilt has never been in question ).

            What was Governor George W. Bush’s reaction to this crisis? When informed that Texas had offered race-based testimony against seven Hispanic defendants, and when informed that the Court of Criminal Appeals had refused to vacate their death sentences, and when informed that a federal court had overturned a ruling of the highest state criminal court, Presidential candidate Bush simply replied that “the system is working.”[12]

            A big one that got away. On the night of July 13, 1982 Officer James D. Harris, who had a wife and two daughters waiting for him at home, pulled over a vehicle containing Roberto Carrasco Flores and Ricardo Aldape Guerra. Officer Harris was shot and killed. Minutes later, Roberto Carrasco Flores was killed in a shootout with police in which an innocent bystander was also killed (by Mr. Flores). On Mr. Flores’ body was found a 9mm pistol matching the bullets which had killed Officer Harris, additional ammunition for that 9mm pistol, and Officer Harris’ .357-caliber revolver. Found hiding nearby was Mr. Guerra, who had a .45 caliber pistol he claimed to have bought from Mr. Flores. No shots had been fired from the pistol. Mr. Flores’ fingerprints were on the 9mm which had killed Officer Harris, but Mr. Guerra’s fingerprints weren’t. Mr. Guerra claimed to be only a recent acquaintance of Mr. Flores.

            Police and prosecutors proceeded to charge Mr. Guerra for the capital and direct murder of Officer Harris rather than as an accomplice to murder. They argued that he had fired the 9mm and then switched guns with Mr. Flores. Several witnesses testified that they had seen Mr. Guerra shoot Officer Harris, the jury found him guilty, and he was sent to die by lethal injection.

            Then the troubles started. Although Mr. Guerra was clearly associating with dangerous types and had entered the country illegally and was in illegal possession of a firearm, evidence accumulated that he was not the killer of Officer Harris. Six of the witnesses claimed that they had been intimidated by police into offering perjured testimony against Mr. Guerra. In the lineup in which witnesses fingered Mr. Guerra, it became clear that police first allowed them to see him alone and in handcuffs. Fingerprint evidence, which supported the defense’s contention that Mr. Flores had killed Officer Harris, had been withheld from the jury by the police and prosecution.[13] Other witnesses were gathered together to re-enact the shooting, permitting them to overhear each other and conform their views in order to develop a consensus view.[14]

            The Texas Court of Criminal Appeals ruled that the new evidence was not relevant, and the execution should proceed. But in 1994 U.S. District Judge Kenneth Hoyt ordered Aldape Guerra be retried or released, saying the police investigating the case were “merchants of chaos” bent on revenge,[15] and that the lineup in which Mr. Guerra was targeted was “impermissibly suggestive”.[16] Later, retired Texas Court of Criminal Appeals Judge Frank Maloney said, “Police did intimidate witnesses by insisting they had seen more than they had seen . . . and threatening witnesses with punitive action.”[17]

            Without witnesses or physical evidence linking Mr. Guerra to the murder, and with fourteen years on death row covering any charges for illegal gun possession, he was released in April 1997 to return home to Mexico. Mr. Guerra died in a car accident four months later.

            What does any of this have to do with Governor George W. Bush? Very little, since he had no direct involvement in the case, most of which took place in the 1980s. The Texas Court of Criminal Appeals is elected, not appointed, as is the position of Attorney General. With other elected leaders addressing the issue (from opposite sides), Gov. Bush steadfastly avoided any mention of the controversy, skillfully maneuvering between Hispanic constituents who suspected racism and social conservatives who wanted someone executed in exchange for a police officer’s death. To resolve the dilemma, Gov. Bush did nothing.

            While Bush turned a blind eye, Mr. Guerra became a folk hero in Mexico, the subject of three songs, two books and a movie.[18] He captured the imagination of a nation which feared racism on the part of its northern neighbor, and suspected political leaders who would do nothing about it. Mr. Guerra returned to Mexico a celebrity, and was offered a role playing himself in a Mexican soap opera. Unfortunately, as mentioned above, he died in a car accident only four months after his release.

            Frame the black guy. Odell Barnes was a criminal, inclined to rape, robbery, and drug abuse. While the citizens of Texas needed to be protected from him, the state of Texas did not need to kill him for a crime he did not, in all likelihood, commit.

            On the night of November 29, 1989, someone beat, stabbed, shot, and raped Helen Bass, a 42-year old vocational nurse who worked in a state hospital in Wichita Falls, Texas. An anonymous tipster pointed the police to Odell Barnes, the son of Mary Barnes, a friend of Helen’s. The case seemed solid. Barnes fingerprints were at the scene, his semen was in the victim, her blood was on his coveralls, witnesses had him leaving the scene of the crime, witnesses had him giving them a gun similar to the one used in the crime, and Barnes had a record anyway. His inexperienced trial lawyers conducted little investigation into the evidence and, like the police, failed to pursue leads that suggested other suspects. Mr. Barnes was convicted and sentenced to death.[19]

            But like so many shut and tight cases in Texas, this one proved to be more open and loose than expected. Johnny Ray Humphrey, a roofer who worked with Mr. Barnes, had testified that Mr. Barnes had given him the gun the day after the murder, and that he had then given it to Pat Williams (who also testified against Mr. Barnes), from whom the police retrieved it.

            Although Pat Williams and Johnny Ray Humphrey had both been in possession of the murder weapon, detectives never considered them as suspects. Acquaintances Harvey Neil and Rodney Brown both told later defense investigators that Johnny Ray Humphrey had approached them with the gun wrapped in a bloody bandana, and that Mr. Humphrey seemed nervous and paranoid. A witness from the original trial told later defense investigators that Mr. Humphrey gave her the gun in a bloody rag, and that his pants had blood on them. He was with two other men whom she couldn’t identify, neither of which was Odell Barnes.

            Pat Williams’ testimony seemed purchased. While Mr. Barnes was awaiting trial Mr. Williams was busted on two felony drug charges. Two months before he appeared as a prosecution witness, Mr. Williams accepted a plea bargain and received ten years probation, a sentence which was entirely contrary to the district attorney’s policy at the time. Later, multiple parole violations on his part were overlooked.

            And the eyewitness who placed Mr. Barnes leaving the scene of the crime? Problematically, he had him leaving the scene 45 minutes before the crime occurred. Also, his court testimony dramatically conflicted with his initial report given to the police–the lighting improved, he saw Barnes closer up, the time of night changed, his car changed direction, and an uncertain identification became absolutely positive.[20]

            The lock in the case seemed to be the blood from the victim found on Mr. Barnes’ coveralls, confirmed by DNA testing. But then forensic scientist Kevin Ballard found crime-lab preservatives in the blood stain, suggesting that the blood had been placed on the coveralls in the lab. “This is the most blatant case of tainted evidence I’ve ever seen,” Mr. Ballard says.

            Moreover, the blood on the coveralls also didn’t match evidence from the crime scene. First of all, Ms. Bass was killed with several different instruments, which would be very unusual for a solitary killer. Second, the crime scene was extremely bloody. Had Barnes worn his coveralls during it, they would in all likelihood have been covered in blood. The two stains found were both nickel-sized. Certified forensic examiner John Jacobson believes that, based on his review of the evidence, at least two people were responsible for the crime, and that “these assailants would have had a substantial amount of blood on them.” Originally, the police had agreed with him. Lead investigator Joe Shephard wrote in his search-warrant request, “Because of the violent struggle and the splattering of blood, I believe that the offender would have blood on his person and the clothes, shoes, hat, or anything else that he was wearing at the time of the offense.”

            Increasingly, crime scene evidence seemed either manipulated, doctored, or unprofessionally managed. Evidence – including closet doors with visible fingerprints from the victim’s bedroom and a stained washcloth – had vanished. A shoe print described in the initial police report had been wiped clean. The print could have been measured, which would have provided significant evidence since Barnes had size 14EEE feet. Though Ms. Bass had two broken fingernails, possibly broken in the struggle, they were never tested for skin samples to compare with the suspect’s. A number of other fingerprints found in the house were never compared with those of other suspects.

            Even the Wichita, Texas police agreed that the evidence was mishandled. Detective Bill Pursley said, “There were parts of that crime scene that if you read the books today, you could look back and say, ‘Boy, did we do that wrong’ . . . It just kind of surprised me that those prints were never compared with anybody.”[21]

            The other lock in the case was Mr. Barnes’ semen in Ms. Bass, confirmed by DNA testing. But Mr. Barnes stated (and neighbors confirmed) that they had been an on-again, off-again item for some time. Mr. Barnes knew Ms. Bass well through his Mom, Mary Barnes, and had done roofing work and odd jobs for her. He claimed that they had slept together two nights before the murder. (Although he told his original defense team this fact, they never pursued it or introduced the testimony in trial.) Libby Johnson, an independent forensic scientist who established the Harris County Medical Examiner’s DNA lab in 1991, analyzed the sperm samples and concluded that Mr. Barnes probably had sex with Ms. Bass at least 24 hours prior to her death. “If they’re claiming that he raped her and killed her right away,” Johnson says, “the findings are not consistent with that.”[22]

            Also, whoever killed Ms. Bass kicked in her back door in order to gain entry to the house, knocking the door frame out of the wall. Mr. Barnes could simply have gained entry by knocking since he knew Ms. Bass well, according to neighbor Josie Rose.

            Then, an investigator was able to track down Felita McKinney, the former girlfriend of an associate of Johnny Ray Humphrey named Randy Harper. She signed an affidavit saying that late on the night of the Bass murder she was sleeping in Randy Harper’s car when she awoke to voices. She then saw her boyfriend, Randy Harper, talking to another man whom she couldn’t recognize. Mr. Harper was carrying a gun, and blood covered his shoes and pants. “Why did you have to shoot her?” Ms. McKinney heard the other man ask. Mr. Harper then got in the car and warned Ms. McKinney not to tell anyone that she’d seen him with a gun.

            The next day Ms. McKinney ran into a group of people behind a bar, including her boyfriend Mr. Harper and a man identified as “Johnny Ray,” who she thought was the same man she’d seen with Mr. Harper the night before. Again Mr. Harper warned her not to tell anyone about the gun and instructed her to be his alibi if anyone asked his whereabouts. “I know that Randy is capable of murder,” McKinney wrote, citing his violent behavior against her. “I believe he killed Mrs. Bass.”

            The scenario seems plausible. Johnny Ray Humphrey, Randy Harper, and a third male, possibly Pat Williams, broke into Ms. Bass’ home in order to rob it, expecting her to be working all night long. They are surprised to find her home, and brutally murder her so that she won’t testify against them. They leave, and try to figure out how to get out of the mess. Knowing that Odell Barnes has a record and is sleeping with Ms. Bass, they decide to pin the blame on him. One of them calls the police with an anonymous tip, and Johnny Ray Humphrey and Pat Williams boldly present the murder weapon to police, saying that Odell Barnes gave it to them. The police buy the story hook, line, and sinker, and never bother to investigate Mr. Humphrey, Mr. Harper, or Mr. Williams. In the forensic lab, some of Ms. Bass’ blood gets spilled on Mr. Barnes’ jeans in two round, nickel-sized drops.

            The police did at one point consider Mr. Harper a suspect. They printed up his rap sheet and tried to meet with him, but he refused to come to the police station. He called though, and talked with them a little bit about Mr. Barnes. The police then dismissed him as a suspect.[23] It may be significant that Mr. Barnes was black but the three other suspects were white.[24]

            Barnes protested his innocence: “I’m no angel, but I didn’t do this.” But these protestations, new evidence, and shoddy police work earned him no mercy. Nor did the probability that the real killers still roam Texas freely. Governor George W. Bush denied any reprieve, Mr. Odell Barnes was executed on March 1, 2000.

            One white man’s word against a whole bunch of black people. In order to discern whether or not the Texas death penalty was in fact racist, it is also helpful to look at some other aspects of the Texas criminal justice system, such as drug enforcement. We may infer that if one aspect of law enforcement was intolerably racist, then other aspects probably were as well.

            Tom Coleman worked as an undercover agent in Tulia, Texas from 1998 to 1999. His street name was “T.J. Dawson.” As an undercover agent, he kept no written records except for incident reports filed with seized evidence, many of which were later determined to be false. The only notes he took were written on his legs and stomach, and unfortunately tended to come off after a few showers. He took no photos. No video was shot. No conversations were recorded. No one observed his alleged undercover drug purchases. After eighteen months on the job, the only thing Tom Coleman had to show for all his work was his word against the word of those he indicted.

            Based on Mr. Coleman’s word 46 citizens of Tulia were arrested. None of them were caught with drugs or drug paraphernalia or guns on them, and none of them had much cash, which is unusual for drug dealers. (Indeed, that was a big part of the problem–they had to rely on state-appointed attorneys to defend them.) And on Tom Copeland’s word 38 people, 35 of whom were black, were convicted of selling small amounts of cocaine and sentenced to prison for as long as 90 years. Even those with absolutely no records were put away for 20 to 25 years. Seeing their innocent friends getting 20 to 25 years prompted some later defendants to confess to crimes they hadn’t committed and plea bargain for probation. In the end, the convictions incriminated almost ten percent of the black population of Tulia.[25] The now defunct local paper ran a headline: Tulia’s Streets Cleared of Garbage.

            The problem is that if Tom Copeland was as good as his word, then he really wasn’t very good. And although law enforcement officials and prosecutors and the judge knew that Mr. Coleman had a tarnished record in law enforcement, and in law generally, they withheld this information from the jurors and defense attorneys.

            The state of Texas appointed two special prosecutors early in 2003 to hold evidence hearings to determine if, in fact, Mr. Coleman’s testimony was indeed the sole basis for conviction in four cases, and if county officials withheld information damaging to their star witness. The prosecutors found that the answer to both questions was positive.[26] Retired Dallas District Judge Ron Chapman, appointed to oversee the evidence hearings, stopped the proceedings one day after Mr. Coleman took the stand, accusing Mr. Coleman of committing “blatant perjury.” “Coleman is the most devious, nonresponsive witness this court has witnessed in 25 years on the bench in Texas,” the judge wrote. Testimony also established Mr. Coleman to be a bigot who used the “n” word in front of task force supervisors while conducting an investigation against mostly black suspects. There was no reprimand.

            And what was the level of Mr. Coleman’s professionalism? Somewhat low, unfortunately. He perjured himself when he said that he’d never been arrested “except for a traffic ticket back when I was a kid” and when he testified that he’d left other law enforcement jobs in “good standing.” In fact, Mr. Coleman was arrested by his own employer, Swisher County Sheriff Larry Stewart in August 1998, in the middle of his Tulia investigation. Sheriff Stewart charged Mr. Coleman with theft and abuse of authority while a deputy with the Cochran County Sheriff’s Office. Mr. Coleman had walked off that job and left town owing more that $7,000 to local stores that extended credit to him, and he illegally gassed his private vehicle with over 100 gallons of gasoline from county pumps. Sheriff Stewart told him to take a week’s vacation and clear up the charges, which were dropped when Mr. Coleman made restitution.[27] He had also walked off his law enforcement job in Pecos County just before he was about to be fired for lying.[28]

            Even as the prosecutions began, Mr. Coleman was found to be conclusively lying. Tanya White, one of Mr. Coleman’s accused, established through banking records that she was not in Texas at the time that Mr. Coleman claimed he had bought drugs from her. Billy Don Wafer produced work records and his boss to prove that he had been on the job when Mr. Coleman claimed to have bought drugs from him. Despite these deceptions, Mr. Coleman’s testimony in other cases was still presented as authoritative by the sheriff, prosecutor, and judge.

            Another strange aspect in the trials was the prevalence of expensive powder cocaine over cheap crack cocaine. Tulia’s residents were poor, and what cocaine use was present in the town tended to be the cheaper crack But powder weighs more and hence brings in stiffer sentences, and is therefore a better collar for law enforcement officers. Suspiciously, the cocaine evidence was of inferior purity, in some cases as low as two percent, while the average purity of street sales is at least 60%. Defense attorneys later speculated that Mr. Coleman had smashed rock cocaine and mixed it with a white substance to manufacture several bags of evidence.[29]

            What was the Texas law establishment’s reaction to Mr. Coleman’s investigative work and resulting prosecutions? Well, the Texas Narcotic Control Program named him “Outstanding Lawman of the Year” in 1999 and he was presented an award by Texas Attorney General John Cornyn.

            In June of 2003 the remaining Tulia inmates were released from jail on their own cognizance. Their case will next move to the Texas Court of Criminal Appeals, which may take as long as two years. None have been cleared of the charges against them. In the meantime, the statute of limitations on perjury has run out for Mr. Coleman’s original testimony in the Tulia trials. But he has been charged with three counts of aggravated perjury over the later evidentiary hearing testimony. And his ex-wife has come forward and signed an affidavit that while they were married he belonged to the Ku Klux Klan.[30]

            What does any of this non-death penalty case have to do with Governor George W. Bush? It only serves to better depict how broken the Texas criminal justice system was “under his watch.” Gov. Bush is not racist, but a Governor need not be racist in order to preside over a racist criminal justice system. Late in Gov. Bush’s tenure, the Tulia defendants were undeniably investigated, arrested, and prosecuted on the basis of race, pure and simple.

            In October of 2000, during the height of the Presidential campaign, African-American residents of Tulia (who hadn’t been arrested) traveled to Austin, Texas. There, as part of a “Journey for Justice,” they protested the illegal and discriminatory treatment of their family members, relatives, friends, and neighbors. They rallied in front of the Governor’s mansion and asked him to hear their story, but Governor George W. Bush and his staff refused to meet with them. His tough-on-crime platform didn’t leave room for investigating charges of racial bias in small Texas towns. The participants left disappointed.[31]

            Governor Bush is now, of course, President Bush. Attorney General John Cornyn, who gave Mr. Coleman his “Outstanding Lawman of the Year” award, is now a U.S. Senator. And the Tulia convicts still await their pardon.