William S. Sessions, who served as direc­tor of the FBI from 1987 to 1993, and Charles F. Baird, a for­mer Texas Court of Criminal Appeals Judge from 1990 to 1998, have called for a halt to exe­cu­tions in Texas because of the risk of exe­cut­ing an inno­cent per­son. Sessions and Baird, both of whom are native Texans, cit­ed the prob­lems at the Houston Crime Lab as a prin­ci­pal rea­son for their doubts about the reli­a­bil­i­ty of the death penal­ty sys­tem:

Since November 2002, when its police depart­men­t’s crime lab prob­lems first sur­faced, Houston cit­i­zens have react­ed with dis­may to each new rev­e­la­tion.

The prob­lems ini­tial­ly seemed lim­it­ed to fair­ly minor phys­i­cal break­downs at the lab build­ing. At every turn, how­ev­er, these prob­lems have mul­ti­plied. Most recent­ly, author­i­ties dis­cov­ered about 280 box­es filled with crime evi­dence involv­ing as many as 8,000 cas­es. What is most wor­ri­some is that these cas­es were con­sid­ered closed, many with a per­pe­tra­tor behind bars and the vic­tims seem­ing­ly assured that jus­tice had been done. But because these box­es remain unin­ven­to­ried, we can­not be sure that the right per­son is in prison, or if the true per­pe­tra­tor is still on the streets, endan­ger­ing us all.

We are Texans and mem­bers of a bipar­ti­san com­mit­tee spon­sored by the Constitution Project’s Death Penalty Initiative. We joined the com­mit­tee in 1999 because we believe the risk of con­vict­ing and exe­cut­ing the wrong peo­ple is unac­cept­ably high. Since the ini­tia­tive’s cre­ation, the num­ber of indi­vid­u­als who have been exon­er­at­ed and released from death row has reached 117 nation­wide, includ­ing eight from Texas. The dis­cov­ery of the box­es from the Houston crime lab rais­es the poten­tial that many more wrong­ful­ly con­vict­ed peo­ple are being housed in our Texas pris­ons.

While our com­mit­tee includes mem­bers who sup­port the death penal­ty, and oth­ers who oppose it, we all agree that the risk of wrong­ful con­vic­tions is too high and that sys­temic reforms are urgent­ly need­ed to try to make the sys­tem fair­er and more accu­rate.

One of our rec­om­men­da­tions is that states allow DNA and oth­er bio­log­i­cal evi­dence to be prop­er­ly test­ed in any case and any time if the evi­dence might shed light on the guilt or inno­cence of the inmate, so that we can be as sure as pos­si­ble that we are pros­e­cut­ing the right per­son.

Our com­mit­tee has not tak­en a posi­tion on a mora­to­ri­um, but the Houston trav­es­ty requires us to join with the many promi­nent Texans who are now call­ing for a mora­to­ri­um until the evi­dence in the Houston crime lab box­es is inven­to­ried and, if appro­pri­ate, test­ed.

We are in good com­pa­ny. Houston Police Chief Harold Hurtt has noted,‘I think it would be very pru­dent for us as a crim­i­nal jus­tice sys­tem to delay fur­ther exe­cu­tions until we have had time to review the evi­dence.’ The dean of the Texas Senate, John Whitmire, who rep­re­sents part of Houston and also chairs the Senate Criminal Justice Committee, joined in the chief’s call for a mora­to­ri­um. In a let­ter to Gov. Rick Perry, Whitmire stat­ed, ​‘It’s just nuts, to sum it up, that we would not hold off on exe­cu­tions until we go through each and every piece of evi­dence.’

Former Gov. Mark White and Charles Terrell, a for­mer chair­man of the Texas Department of Criminal Justice, have also called on the gov­er­nor to act, as have major Texas news­pa­pers. Judge Tom Price of the Texas Court of Criminal Appeals has also recent­ly joined the call for a mora­to­ri­um.

Yet, with­in the last few weeks, five exe­cu­tions have gone for­ward involv­ing death row inmates from Houston, with anoth­er sched­uled for ear­ly December. District Attorney Chuck Rosenthal has resist­ed an inde­pen­dent review of the crime lab and has joined the tri­al judges in oppos­ing a post­pone­ment of the exe­cu­tions, even just until a prop­er inven­to­ry and any appro­pri­ate test­ing of the evi­dence is done.

We can­not under­stand this posi­tion. If the evi­dence con­firms the guilt of the per­son sched­uled to be exe­cut­ed, the exe­cu­tion should go for­ward. But if the evi­dence exon­er­ates the inmate, no Texan would want to see an exe­cu­tion.

Texans know that the crime lab prob­lems are not just the­o­ret­i­cal and are not lim­it­ed to death row inmates. In 2003, Josiah Sutton was exon­er­at­ed of a crime he did not com­mit after spend­ing four years in prison. Earlier this month, George Rodriguez was released after spend­ing more than 17 years in prison. He was con­vict­ed on the basis of faulty DNA analy­sis.

Since rein­tro­duc­tion of the death penal­ty, Texas has exe­cut­ed 336 men and women. Our state has been respon­si­ble for more than 35 per­cent of all the exe­cu­tions in America. Too many of these exe­cu­tions occurred despite of pro­found ques­tions about the facts of these cas­es, includ­ing in some instances ques­tions about whether the defen­dant was actu­al­ly inno­cent.

The two safe­ty valves that sup­pos­ed­ly pre­vent our state from exe­cut­ing an inno­cent per­son have not worked as they should, and in some cas­es have failed entire­ly. The Court of Criminal Appeals, an elect­ed and par­ti­san body, has been crit­i­cized by the U.S. Supreme Court for not prop­er­ly review­ing cas­es. A just released Texas Monthly arti­cle about the court is called ​‘And Justice for Some.’ And — bor­row­ing a phrase from the Texas oil fields — clemen­cy in Texas is sim­ply a dry hole, with crit­i­cal facts either not pre­sent­ed to the gov­er­nor or not mean­ing­ful­ly con­sid­ered.

Many experts believe that the death penal­ty does not deter crime. Some of us are not sure one way or the oth­er. But, we should not be deterred from exer­cis­ing com­mon sense. We have a run­away train with no one at the con­trols, and that is no way to run a rail­road. We sup­port a mora­to­ri­um.

(Op-ed, Austin American-Statesman, November 25, 2004). See New Voices. See also Innocence.

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