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In Ryan's Words: "I Must Act"

In Ryan's Words: 'I Must Act'

Following is the prepared text of Illinois Gov. George Ryan's speech at Northwestern University College of Law before granting clemency to all inmates on the state's death row
(NYTimes.com, January 11, 2003)

Four years ago I was sworn in as the 39th Governor of Illinois. That was just four short years ago; that's when I was a firm believer in the American System of Justice and the death penalty. I believed that the ultimate penalty for the taking of a life was administrated in a just and fair manner.

Today, 3 days before I end my term as Governor, I stand before you to explain my frustrations and deep concerns about both the administration and the penalty of death. It is fitting that we are gathered here today at Northwestern University with the students, teachers, lawyers and investigators who first shed light on the sorrowful condition of Illinois' death penalty system. Professors Larry Marshall, Dave Protess have and their students along with investigators Paul Ciolino have gone above the call. They freed the falsely accused Ford Heights Four, they saved Anthony Porter's life, they fought for Rolando Cruz and Alex Hernandez. They devoted time and effort on behalf of Aaron Patterson, a young man who lost 15 years of his youth sitting among the condemned, and LeRoy Orange, who lost 17 of the best years of his life on death row.

It is also proper that we are together with dedicated people like Andrea Lyon who has labored on the front lines trying capital cases for many years and who is now devoting her passion to creating an innocence center at De Paul University. You saved Madison Hobley's life.

Together you spared the lives and secured the freedom of 17 men ? men who were wrongfully convicted and rotting in the condemned units of our state prisons. What you have achieved is of the highest calling ? Thank You!

Yes, it is right that I am here with you, where, in a manner of speaking, my journey from staunch supporters of capital punishment to reformer all began. But I must tell you ? since the beginning of our journey ? my thoughts and feelings about the death penalty have changed many, many times. I realize that over the course of my reviews I had said that I would not do blanket commutation. I have also said it was an option that was there and I would consider all options.

During my time in public office I have always reserved my right to change my mind if I believed it to be in the best public interest, whether it be about taxes, abortions or the death penalty. But I must confess that the debate with myself has been the toughest concerning the death penalty. I suppose the reason the death penalty has been the toughest is because it is so final ? the only public policy that determines who lives and who dies. In addition it is the only issue that attracts most of the legal minds across the country. I have received more advice on this issue than any other policy issue I have dealt with in my 35 years of public service. I have kept an open mind on both sides of the issues of commutation for life or death.

I have read, listened to and discussed the issue with the families of the victims as well as the families of the condemned. I know that any decision I make will not be accepted by one side or the other. I know that my decision will be just that - my decision ? based on all the facts I could gather over the past 3 years. I may never be comfortable with my final decision, but I will know in my heart, that I did my very best to do the right thing.

Having said that I want to share a story with you:

I grew up in Kankakee which even today is still a small midwestern town, a place where people tend to know each other. Steve Small was a neighbor. I watched him grow up. He would babysit my young children ? which was not for the faint of heart since Lura Lynn and I had six children, 5 of them under the age of 3. He was a bright young man who helped run the family business. He got married and he and his wife had three children of their own. Lura Lynn was especially close to him and his family. We took comfort in knowing he was there for us and we for him.

One September midnight he received a call at his home. There had been a break-in at the nearby house he was renovating. But as he left his house, he was seized at gunpoint by kidnappers. His captors buried him alive in a shallow hole. He suffocated to death before police could find him.

His killer led investigators to where Steve's body was buried. The killer, Danny Edward was also from my hometown. He now sits on death row. I also know his family. I share this story with you so that you know I do not come to this as a neophyte without having experienced a small bit of the bitter pill the survivors of murder must swallow.

My responsibilities and obligations are more than my neighbors and my family. I represent all the people of Illinois, like it or not. The decision I make about our criminal justice system is felt not only here, but the world over.

The other day, I received a call from former South African President Nelson Mandela who reminded me that the United States sets the example for justice and fairness for the rest of the world. Today the United States is not in league with most of our major allies: Europe, Canada, Mexico, most of South and Central America. These countries rejected the death penalty. We are partners in death with several third world countries. Even Russia has called a moratorium.

The death penalty has been abolished in 12 states. In none of these states has the homicide rate increased. In Illinois last year we had about 1000 murders, only 2 percent of that 1000 were sentenced to death. Where is the fairness and equality in that? The death penalty in Illinois is not imposed fairly or uniformly because of the absence of standards for the 102 Illinois State Attorneys, who must decide whether to request the death sentence. Should geography be a factor in determining who gets the death sentence? I don't think so but in Illinois it makes a difference. You are 5 times more likely to get a death sentence for first degree murder in the rural area of Illinois than you are in Cook County. Where is the justice and fairness in that ? where is the proportionality?

The Most Reverend Desmond Tutu wrote to me this week stating that "to take a life when a life has been lost is revenge, it is not justice. He says justice allows for mercy, clemency and compassion. These virtues are not weakness."

"In fact the most glaring weakness is that no matter how efficient and fair the death penalty may seem in theory, in actual practice it is primarily inflicted upon the weak, the poor, the ignorant and against racial minorities. " That was a quote from Former California Governor Pat Brown. He wrote that in his book ? Public Justice, Private Mercy he wrote that nearly 50 years ago ? nothing has changed in nearly 50 years.

I never intended to be an activist on this issue. I watched in surprise as freed death row inmate Anthony Porter was released from jail. A free man, he ran into the arms of Northwestern University Professor Dave Protess who poured his heart and soul into proving Porter's innocence with his journalism students.

He was 48 hours away from being wheeled into the execution chamber where the state would kill him.

It would all be so antiseptic and most of us would not have even paused, except that Anthony Porter was innocent of the double murder for which he had been condemned to die.

After Mr. Porter's case there was the report by Chicago Tribune reporters Steve Mills and Ken Armstrong documenting the systemic failures of our capital punishment system. Half of the nearly 300 capital cases in Illinois had been reversed for a new trial or resentencing.

Nearly Half!

33 of the death row inmates were represented at trial by an attorney who had later been disbarred or at some point suspended from practicing law.

Of the more than 160 death row inmates, 35 were African American defendants who had been convicted or condemned to die by all-white juries.

More than two-thirds of the inmates on death row were African American.

46 inmates were convicted on the basis of testimony from jailhouse informants.

I can recall looking at these cases and the information from the Mills/Armstrong series and asking my staff: How does that happen? How in God's name does that happen? I'm not a lawyer, so somebody explain it to me.

But no one could. Not to this day.

Then over the next few months. There were three more exonerated men, freed because their sentence hinged on a jailhouse informant or new DNA technology proved beyond a shadow of doubt their innocence.

We then had the dubious distinction of exonerating more men than we had executed. 13 men found innocent, 12 executed.

As I reported yesterday, there is not a doubt in my mind that the number of innocent men freed from our Death Row stands at 17, with the pardons of Aaron Patterson, Madison Hobley, Stanley Howard and Leroy Orange.

That is an absolute embarrassment. 17 exonerated death row inmates is nothing short of a catastrophic failure. But the 13, now 17 men, is just the beginning of our sad arithmetic in prosecuting murder cases. During the time we have had capital punishment in Illinois, there were at least 33 other people wrongly convicted on murder charges and exonerated. Since we reinstated the death penalty there are also 93 people ? 93 ? where our criminal justice system imposed the most severe sanction and later rescinded the sentence or even released them from custody because they were innocent.

How many more cases of wrongful conviction have to occur before we can all agree that the system is broken?

Throughout this process, I have heard many different points of view expressed. I have had the opportunity to review all of the cases involving the inmates on death row. I have conducted private group meetings, one in Springfield and one in Chicago, with the surviving family members of homicide victims. Everyone in the room who wanted to speak had the opportunity to do so. Some wanted to express their grief, others wanted to express their anger. I took it all in.

My commission and my staff had been reviewing each and every case for three years. But, I redoubled my effort to review each case personally in order to respond to the concerns of prosecutors and victims' families. This individual review also naturally resulted in a collective examination of our entire death penalty system.

I also had a meeting with a group of people who are less often heard from, and who are not as popular with the media. The family members of death row inmates have a special challenge to face. I spent an afternoon with those family members at a Catholic church here in Chicago. At that meeting, I heard a different kind of pain expressed. Many of these families live with the twin pain of knowing not only that, in some cases, their family member may have been responsible for inflicting a terrible trauma on another family, but also the pain of knowing that society has called for another killing. These parents, siblings and children are not to blame for the crime committed, yet these innocent stand to have their loved ones killed by the state. As Mr. Mandela told me, they are also branded and scarred for life because of the awful crime committed by their family member.

Others were even more tormented by the fact that their loved one was another victim, that they were truly innocent of the crime for which they were sentenced to die.

It was at this meeting that I looked into the face of Claude Lee, the father of Eric Lee, who was convicted of killing Kankakee police officer Anthony Samfay a few years ago. It was a traumatic moment, once again, for my hometown. A brave officer, part of that thin blue line that protects each of us, was struck down by wanton violence. If you will kill a police officer, you have absolutely no respect for the laws of man or God.

I've know the Lee family for a number of years. There does not appear to be much question that Eric was guilty of killing the officer. However, I can say now after our review, there is also not much question that Eric is seriously ill, with a history of treatment for mental illness going back a number of years.

The crime he committed was a terrible one ? killing a police officer. Society demands that the highest penalty be paid.

But I had to ask myself ? could I send another man's son to death under the deeply flawed system of capital punishment we have in Illinois? A troubled young man, with a history of mental illness? Could I rely on the system of justice we have in Illinois not to make another horrible mistake? Could I rely on a fair sentencing?

In the United States the overwhelming majority of those executed are psychotic, alcoholic, drug addicted or mentally unstable. The frequently are raised in an impoverished and abusive environment.

Seldom are people with money or prestige convicted of capital offenses, even more seldom are they executed.

To quote Governor Brown again, he said "society has both the right and the moral duty to protect itself against its enemies. This natural and prehistoric axiom has never successfully been refuted. If by ordered death, society is really protected and our homes and institutions guarded, then even the most extreme of all penalties can be justified."

"Beyond its honor and incredibility, it has neither protected the innocent nor deterred the killers. Publicly sanctioned killing has cheapened human life and dignity without the redeeming grace which comes from justice metered out swiftly, evenly, humanely."

At stake throughout the clemency process, was whether some, all or none of these inmates on death row would have their sentences commuted from death to life without the possibility parole.

One of the things discussed with family members was life without parole was seen as a life filled with perks and benefits.

Some inmates on death row don't want a sentence of life without parole. Danny Edwards wrote me and told me not to do him any favors because he didn't want to face a prospect of a life in prison without parole. They will be confined in a cell that is about 5-feet-by-12 feet, usually double-bunked. Our prisons have no air conditioning, except at our supermax facility where inmates are kept in their cell 23 hours a day. In summer months, temperatures in these prisons exceed one hundred degrees. It is a stark and dreary existence. They can think about their crimes. Life without parole has even, at times, been described by prosecutors as a fate worse than death.

Yesterday, I mentioned a lawsuit in Livingston County where a judge ruled the state corrections department cannot force feed two corrections inmates who are on a hunger strike. The judge ruled that suicide by hunger strike was not an irrational action by the inmates, given what their future holds.

Earlier this year, the U.S. Supreme Court held that it is unconstitutional and cruel and unusual punishment to execute the mentally retarded. It is now the law of the land. How many people have we already executed who were mentally retarded and are now dead and buried? Although we now know that they have been killed by the state unconstitutionally and illegally. Is that fair? Is that right?

This court decision was last spring. The General Assembly failed to pass any measure defining what constitutes mental retardation. We are a rudderless ship because they failed to act.

This is even after the Illinois Supreme Court also told lawmakers that it is their job and it must be done.

I started with this issue concerned about innocence. But once I studied, once I pondered what had become of our justice system, I came to care above all about fairness. Fairness is fundamental to the American system of justice and our way of life.

The facts I have seen in reviewing each and every one of these cases raised questions not only about the innocence of people on death row, but about the fairness of the death penalty system as a whole.

If the system was making so many errors in determining whether someone was guilty in the first place, how fairly and accurately was it determining which guilty defendants deserved to live and which deserved to die? What effect was race having? What effect was poverty having?

And in almost every one of the exonerated 17, we not only have breakdowns in the system with police, prosecutors and judges, we have terrible cases of shabby defense lawyers. There is just no way to sugar coat it. There are defense attorneys that did not consult with their clients, did not investigate the case and were completely unqualified to handle complex death penalty cases. They often didn't put much effort into fighting a death sentence. If your life is on the line, your lawyer ought to be fighting for you. As I have said before, there is more than enough blame to go around.

I had more questions.

In Illinois, I have learned, we have 102 decision makers. Each of them are politically elected, each beholden to the demands of their community and, in some cases, to the media or especially vocal victims' families. In cases that have the attention of the media and the public, are decisions to seek the death penalty more likely to occur? What standards are these prosecutors using?

Some people have assailed my power to commute sentences, a power that literally hundreds of legal scholars from across the country have defended. But prosecutors in Illinois have the ultimate commutation power, a power that is exercised every day. They decide who will be subject to the death penalty, who will get a plea deal or even who may get a complete pass on prosecution. By what objective standards do they make these decisions? We do not know, they are not public. There were more than 1000 murders last year in Illinois. There is no doubt that all murders are horrific and cruel. Yet, less than 2 percent of those murder defendants will receive the death penalty. That means more than 98% of victims families do not get, and will not receive whatever satisfaction can be derived from the execution of the murderer. Moreover, if you look at the cases, as I have done ? both individually and collectively -- a killing with the same circumstances might get 40 years in one county and death in another county. I have also seen where co-defendants who are equally or even more culpable get sentenced to a term of years, while another less culpable defendant ends up on death row.

In my case-by-case review, I found three people that fell into this category, Mario Flores, Montel Johnson and William Franklin. Today I have commuted their sentences to a term of 40 years to bring their sentences into line with their co-defendants and to reflect the other extraordinary circumstances of these cases.

Supreme Court Justice Potter Stewart has said that the imposition of the death penalty on defendants in this country is as freakish and arbitrary as who gets hit by a bolt of lightning.

For years the criminal justice system defended and upheld the imposition of the death penalty for the 17 exonerated inmates from Illinois Death row. Yet when the real killers are charged, prosecutors have often sought sentences of less than death. In the Ford Heights Four Case, Verneal Jimerson and Dennis Williams fought the death sentences imposed upon them for 18 years before they were exonerated. Later, Cook County prosecutors sought life in prison for two of the real killers and a sentence of 80 years for a third.

What made the murder for which the Ford Heights Four were sentenced to die less heinous and worthy of the death penalty twenty years later with a new set of defendants?

We have come very close to having our state Supreme Court rule our death penalty statute - the one that I helped enact in 1977 - unconstitutional. Former State Supreme Court Justice Seymour Simon wrote to me that it was only happenstance that our statute was not struck down by the state's high court. When he joined the bench in 1980, three other justices had already said Illinois' death penalty was unconstitutional. But they got cold feet when a case came along to revisit the question. One judge wrote that he wanted to wait and see if the Supreme Court of the United States would rule on the constitutionality of the new Illinois law. Another said precedent required him to follow the old state Supreme Court ruling with which he disagreed.

Even a pharmacist knows that doesn't make sense. We wouldn't have a death penalty today, and we all wouldn't be struggling with this issue, if those votes had been different. How arbitrary.

Several years after we enacted our death penalty statute, Girvies Davis was executed. Justice Simon writes that he was executed because of this unconstitutional aspect of the Illinois law -- the wide latitude that each Illinois State's Attorney has to determine what cases qualify for the death penalty. One State's Attorney waived his request for the death sentence when Davis' first sentencing was sent back to the trial court for a new sentencing hearing. The prosecutor was going to seek a life sentence. But in the interim, a new State's Attorney took office and changed directions. He once again sought and secured a death sentence. Davies was executed.

How fair is that?

After the flaws in our system were exposed, the Supreme Court of Illinois took it upon itself to begin to reform its' rules and improve the trial of capital cases. It changed the rule to require that State's Attorney's give advance notice to defendants that they plan to seek the death penalty to require notice before trial instead of after conviction. The Supreme Court also enacted new discovery rules designed to prevent trials by ambush and to allow for better investigation of cases from the beginning.

But shouldn't that mean if you were tried or sentenced before the rules changed, you ought to get a new trial or sentencing with the new safeguards of the rules? This issue has divided our Supreme Court, some saying yes, a majority saying no. These justices have a lifetime of experience with the criminal justice system and it concerns me that these great minds so strenuously differ on an issue of such importance, especially where life or death hangs in the balance.

What are we to make of the studies that showed that more than 50% of Illinois jurors could not understand the confusing and obscure sentencing instructions that were being used? What effect did that problem have on the trustworthiness of death sentences? A review of the cases shows that often even the lawyers and judges are confused about the instructions - let alone the jurors sitting in judgment. Cases still come before the Supreme Court with arguments about whether the jury instructions were proper.

I spent a good deal of time reviewing these death row cases. My staff, many of whom are lawyers, spent busy days and many sleepless nights answering my questions, providing me with information, giving me advice. It became clear to me that whatever decision I made, I would be criticized. It also became clear to me that it was impossible to make reliable choices about whether our capital punishment system had really done its job.

As I came closer to my decision, I knew that I was going to have to face the question of whether I believed so completely in the choice I wanted to make that I could face the prospect of even commuting the death sentence of Daniel Edwards ? the man who had killed a close family friend of mine. I discussed it with my wife, Lura Lynn, who has stood by me all these years. She was angry and disappointed at my decision like many of the families of other victims will be.

I was struck by the anger of the families of murder victims. To a family they talked about closure. They pleaded with me to allow the state to kill an inmate in its name to provide the families with closure. But is that the purpose of capital punishment? Is it to soothe the families? And is that truly what the families experience.

I cannot imagine losing a family member to murder. Nor can I imagine spending every waking day for 20 years with a single minded focus to execute the killer. The system of death in Illinois is so unsure that it is not unusual for cases to take 20 years before they are resolved. And thank God. If it had moved any faster, then Anthony Porter, the Ford Heights Four, Ronald Jones, Madison Hobley and the other innocent men we've exonerated might be dead and buried.

But it is cruel and unusual punishment for family members to go through this pain, this legal limbo for 20 years. Perhaps it would be less cruel if we sentenced the killers to TAMS to life, and used our resources to better serve victims.

My heart ached when I heard one grandmother who lost children in an arson fire. She said she could not afford proper grave markers for her grandchildren who died. Why can't the state help families provide a proper burial?

Another crime victim came to our family meetings. He believes an inmate sent to death row for another crime also shot and paralyzed him. The inmate he says gets free health care while the victim is struggling to pay his substantial medical bills and, as a result, he has forgone getting proper medical care to alleviate the physical pain he endures.

What kind of victims services are we providing? Are all of our resources geared toward providing this notion of closure by execution instead of tending to the physical and social service needs of victim families? And what kind of values are we instilling in these wounded families and in the young people? As Gandhi said, an eye for an eye only leaves the whole world blind.

President Lincoln often talked of binding up wounds as he sought to preserve the Union. "We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection."

I have had to consider not only the horrible nature of the crimes that put men on death row in the first place, the terrible suffering of the surviving family members of the victims, the despair of the family members of the inmates, but I have also had to watch in frustration as members of the Illinois General Assembly failed to pass even one substantive death penalty reform. Not one. They couldn't even agree on ONE. How much more evidence is needed before the General Assembly will take its responsibility in this area seriously?

The fact is that the failure of the General Assembly to act is merely a symptom of the larger problem. Many people express the desire to have capital punishment. Few, however, seem prepared to address the tough questions that arise when the system fails. It is easier and more comfortable for politicians to be tough on crime and support the death penalty. It wins votes. But when it comes to admitting that we have a problem, most run for cover. Prosecutors across our state continue to deny that our death penalty system is broken ? or they say if there is a problem, it is really a small one and we can fix it somehow. It is difficult to see how the system can be fixed when not a single one of the reforms proposed by my Capital Punishment Commission has been adopted. Even the reforms the prosecutors agree with haven't been adopted.

So when will the system be fixed? How much more risk can we afford? Will we actually have to execute an innocent person before the tragedy that is our capital punishment system in Illinois is really understood? This summer, a United States District court judge held the federal death penalty was unconstitutional and noted that with the number of recent exonerations based on DNA and new scientific technology we undoubtedly executed innocent people before this technology emerged.

As I prepare to leave office, I had to ask myself whether I could really live with the prospect of knowing that I had the opportunity to act, but that I failed to do so because I might be criticized. Could I take the chance that our capital punishment system might be reformed, that wrongful convictions might not occur, that enterprising journalism students might free more men from death row? A system that's so fragile that it depends on young journalism students is seriously flawed.

"There is no honorable way to kill, no gentle way to destroy. There is nothing good in war. Except its ending."

That's what Abraham Lincoln said about the bloody war between the states. It was a war fought to end the sorriest chapter in American history--the institution of slavery. While we are not in a civil war now, we are facing what is shaping up to be one of the great civil rights struggles of our time. Stephen Bright of the Southern Center for Human Rights has taken the position that the death penalty is being sought with increasing frequency in some states against the poor and minorities.

Our own study showed that juries were more likely to sentence to death if the victim were white than if the victim were black--three-and-a-half times more likely to be exact. We are not alone. Just this month Maryland released a study of their death penalty system and racial disparities exist there too.

This week, Mamie Till died. Her son Emmett was lynched in Mississippi in the 1950s. She was a strong advocate for civil rights and reconciliation. In fact just three weeks ago, she was the keynote speaker at the Murder Victims' Families for Reconciliation Event in Chicago. This group, many of whom I've met, opposes the death penalty even though their family members have been lost to senseless killing. Mamie's strength and grace not only ignited the civil rights movement--including inspiring Rosa Parks to refuse to go to the back of the bus--but inspired murder victims' families until her dying day.

Is our system fair to all? Is justice blind? These are important human rights issues.

Another issue that came up in my individual, case-by-case review was the issue of international law. The Vienna Convention protects U.S. citizens abroad and foreign nationals in the United States. It provides that if you arrested, you should be afforded the opportunity to contact your consulate. There are five men on death row who were denied that internationally recognized human right. Mexico's President Vicente Fox contacted me to express his deep concern for the Vienna Convention violations. If we do not uphold international law here, we cannot expect our citizens to be protected outside the United States.

My Commission recommended the Supreme Court conduct a proportionality review of our system in Illinois. While our appellate courts perform a case by case review of the appellate record, they have not done such a big picture study. Instead, we tinker with a case-by-case review as each appeal lands on their docket.

In 1994, near the end of his distinguished career on the Supreme Court of the United States, Justice Harry Blackmun wrote an influential dissent in the body of law on capital punishment. 20 years earlier he was part of the court that issued the landmark Furman decision. The Court decided that the death penalty statutes in use throughout the country were fraught with severe flaws that rendered them unconstitutional. Quite frankly, they were the same problems we see here in Illinois. To many, it looked liked the Furman decision meant the end of the death penalty in the United States.

This was not the case. Many states responded to Furman by developing and enacting new and improved death penalty statutes. In 1976, four years after it had decided Furman, Justice Blackmun joined the majority of the United States Supreme Court in deciding to give the States a chance with these new and improved death penalty statutes. There was great optimism in the air.

This was the climate in 1977, when the Illinois legislature was faced with the momentous decision of whether to reinstate the death penalty in Illinois. I was a member of the General Assembly at that time and when I pushed the green button in favor of reinstating the death penalty in this great State, I did so with the belief that whatever problems had plagued the capital punishment system in the past were now being cured. I am sure that most of my colleagues who voted with me that day shared that view.

But 20 years later, after affirming hundreds of death penalty decisions, Justice Blackmun came to the realization, in the twilight of his distinguished career that the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake." He expressed frustration with a 20-year struggle to develop procedural and substantive safeguards. In a now famous dissent he wrote in 1994, " From this day forward, I no longer shall tinker with the machinery of death."

One of the few disappointments of my legislative and executive career is that the General Assembly failed to work with me to reform our deeply flawed system.

I don't know why legislators could not heed the rising voices of reform. I don't know how many more systemic flaws we needed to uncover before they would be spurred to action.

Three times I proposed reforming the system with a package that would restrict the use of jailhouse snitches, create a statewide panel to determine death eligible cases, and reduce the number of crimes eligible for death. These reforms would not have created a perfect system, but they would have dramatically reduced the chance for error in the administration of the ultimate penalty.

The Governor has the constitutional role in our state of acting in the interest of justice and fairness. Our state constitution provides broad power to the Governor to issue reprieves, pardons and commutations. Our Supreme Court has reminded inmates petitioning them that the last resort for relief is the governor.

At times the executive clemency power has perhaps been a crutch for courts to avoid making the kind of major change that I believe our system needs.

Our systemic case-by-case review has found more cases of innocent men wrongfully sentenced to death row. Because our three year study has found only more questions about the fairness of the sentencing; because of the spectacular failure to reform the system; because we have seen justice delayed for countless death row inmates with potentially meritorious claims; because the Illinois death penalty system is arbitrary and capricious - and therefore immoral - I no longer shall tinker with the machinery of death.

I cannot say it more eloquently than Justice Blackmun.

The legislature couldn't reform it.

Lawmakers won't repeal it.

But I will not stand for it.

I must act.

Our capital system is haunted by the demon of error, error in determining guilt, and error in determining who among the guilty deserves to die. Because of all of these reasons today I am commuting the sentences of all death row inmates.

This is a blanket commutation. I realize it will draw ridicule, scorn and anger from many who oppose this decision. They will say I am usurping the decisions of judges and juries and state legislators. But as I have said, the people of our state have vested in me to act in the interest of justice. Even if the exercise of my power becomes my burden I will bear it. Our constitution compels it. I sought this office, and even in my final days of holding it I cannot shrink from the obligations to justice and fairness that it demands.

There have been many nights where my staff and I have been deprived of sleep in order to conduct our exhaustive review of the system. But I can tell you this: I will sleep well knowing I made the right decision.

As I said when I declared the moratorium, it is time for a rational discussion on the death penalty. While our experience in Illinois has indeed sparked a debate, we have fallen short of a rational discussion. Yet if I did not take this action, I feared that there would be no comprehensive and thorough inquiry into the guilt of the individuals on death row or of the fairness of the sentences applied.

To say it plainly one more time- the Illinois capital punishment system is broken. It has taken innocent men to a hair's breadth escape from their unjust execution. Legislatures past have refused to fix it. Our new legislature and our new Governor must act to rid our state of the shame of threatening the innocent with execution and the guilty with unfairness.

In the days ahead, I will pray that we can open our hearts and provide something for victims' families other than the hope of revenge. Lincoln once said: " I have always found that mercy bears richer fruits than strict justice." I can only hope that will be so. God bless you. And God bless the people of Illinois.


Return to Clemency.


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The Future of the Death Penalty in the U.S.: A Texas-Sized Crisis by Richard C. Dieter, Esq. Executive Director Death Penalty Information Center May 1994

TABLE OF CONTENTS
Executive Summary
Introduction
The Death Penalty in Texas: A State of Crisis
Official Misconduct (National Implications)
Racism in Deciding Who Should Die (National Implications)
The Crisis in Representation in Texas (National Implications)
Clemency in Texas (National Implications)
Texas Crime and the State's Response (National Implications)
Conclusion


Executive Summary Texas is the nation's foremost executioner. It has been responsible for a third of the executions in the country and has carried out two and a half times as many death sentences as the next leading state. Death warrants are being signed at an unmanageable pace, yet the Texas death row is bulging with unprecedented numbers of inmates. But this accelerated form of justice comes at a price. The rest of the country should heed the warning of the Texas experience before it embarks on a wholesale expansion of the death penalty.

The death penalty in Texas is in a state of crisis. Numerous death penalty convictions have been tainted by overzealous prosecutions and the use of perjured testimony. State paid medical "experts" make unreliable predictions about defendants' future dangerousness while other doctors simply lie about tests they never performed. Six innocent people have been sentenced to death and later released since 1987. The race of the defendant and victim play a major part in which cases are selected for the death penalty. Legal representation of indigent defendants at trial is frequently incompetent, and representation for appeals is often non-existent. And the costs of the death penalty in Texas are in the hundreds of millions of dollars with no end in sight.

And yet, Texas has little to show for all this expense and the sacrifice of judicial due process. During the period when Texas rose to become the nation's leading death penalty state, its crime rate grew by 24% and its violent crime increased by 46%, much faster than the national average. Texas leads the country in numbers of its police officers killed and more Texans die from gunshot wounds than from car accidents.

But Texas's death penalty problems are certainly not unique. Many states with large death rows have also been plagued by prosecutorial misconduct, innocent defendants sentenced to death, racism in the application of justice, inadequate representation, and the high costs of the death penalty. Forty-eight defendants have been released from death row since capital punishment was reinstated after evidence of their innocence was discovered. Half of the nation's death row is made up of minorities and almost all capital cases involve white victims.

Many in America are pushing for a faster pace and a wider use of the death penalty on both the state and federal levels. Texas is a paradigm of what can happen under such an expansion.

Some politicians and law enforcement officers in Texas are beginning to have second thoughts about their state's practice of the death penalty. While people want to address the problem of crime, they also want solutions that really work. Nationally, there should be a careful examination of death penalty justice in Texas before we embrace an expansion of executions as an answer to crime.

When in Gregg v. Georgia the Supreme Court gave its seal of approval to capital punishment, this endorsement was premised on the promise that capital punishment would be administered with fairness and justice. Instead, the promise has become a cruel and empty mockery. If not remedied, the scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it continue.

--Justice Thurgood Marshall, 1990 [1] From this day forward, I no longer shall tinker with the machinery of death. . . . I feel morally and intellectually obligated to concede that the death penalty experiment has failed.

--Justice Harry Blackmun, 1994 [2]

Introduction Between 1967 and 1977, executions in the United States were halted as evidence of racial injustice and arbitrariness in the use of the death penalty mounted. When most states revised their capital punishment laws, the Supreme Court allowed the death penalty to resume in 1976. But this approval inaugurated a new period of experimentation regarding the application of the death penalty. In the eyes of many, including Justice Blackmun who oversaw this entire critical period of death penalty history, that experiment has failed to meet even the minimal standards of fairness and justice. And nowhere are these failings more evident than in the state of Texas.

No other state comes close to the number of executions being carried out in Texas. It has put to death more than twice as many inmates as any other state since the death penalty was reinstated. In 1993 alone, Texas accounted for more than three times as many executions as any other state and carried out almost half of the death sentences in the entire country.

The accelerated pace of executions and the disturbing number of inmates facing death without legal representation in Texas has drained both the state's resources and the ability of the defense bar to adequately respond. At the same time, the political pressure to achieve even more death sentences and more executions has frequently given due process a back seat.

But the size and problems of capital punishment in Texas are not unique to that state. The United States is perched on the precipice of a wholesale expansion of the death penalty. Before it takes the plunge, the country should look at Texas' experience. The warehousing of hundreds of people awaiting execution, half of whom are minorities, the constant signing of death warrants, the grisly spectacle of weekly executions, and the erosion of due process by the relentless press to execute will be much more common in the years ahead if the United States chooses to follow the Texas model. The problems which Texas has been experiencing in its rise to the position as the nation's foremost executioner are already emerging in other states throughout the country.

This report will look at various dimensions of the death penalty crisis in Texas:

  • The examples of official misconduct and resulting mistaken convictions;
  • The evidence of racism infecting the application of the death penalty;
  • The crisis in death penalty representation which serves to perpetuate Texas' death penalty problems.
  • The absence of clemency as a realistic remedy to prevent wrongful executions; and
  • The way in which Texas' emphasis on the death penalty interferes with addressing the larger problem of crime.


The United States is perched on the precipice of a wholesale expansion of the death penalty. Before it takes the plunge, the country should look at Texas' experience.

At each step of the way, the report will look at the national implications of what is happening in Texas. It will identify the extent to which the Texas death penalty is likely to be mirrored in the rest of the United States in the near future. Finally, the report will point to the signs of official disillusionment with the death penalty in Texas. The death penalty crisis in Texas should be a warning to our entire country as we struggle to respond to the national problem of crime.

The Death Penalty in Texas:
A State of Crisis To get an idea of the size of the death penalty in Texas, it is instructive to look at what the death penalty in the entire country would be like today if every state had proportionately followed Texas' lead.

"[T]he scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come."

--Justice Thurgood Marshall In 1993 alone, there would have been 250 executions, one for every business day of the year and the largest number of executions in the country's history. In the last ten years, the U.S. would have executed over 1,000 people. The nation's death row would house more than 5,300 condemned individuals. The national cost for the death penalty would be at least two billion dollars, with much more expense to come. The courts of appeals and the Supreme Court would be deluged with petitions from condemned inmates, while at the same time hundreds of inmates would have no attorney as their execution dates approached. Meanwhile, all of these executions would have done nothing to lower the nation's murder rate. [3]

In achieving this proficiency in executions, Texas has sacrificed the pursuit of justice. It was probably no coincidence that Justice Blackmun chose a Texas case to condemn the death penalty. Justice Thurgood Marshall had earlier warned that the entire country was in similar danger because of the death penalty: "[T]he scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come." [4] As the nation moves toward an even greater expansion of this practice, it should consider whether capital punishment is worth the mantle of such a pall of shame.

1. Official Misconduct: The Death Penalty With A Vengeance Texas has pursued the death penalty with a vengeance. Prosecutors and politicians have staked their careers on getting people executed. Unfortunately, such political grandstanding results in more than rhetoric -- individual rights have been sacrificed and innocent people have been sent to death row.

This phenomenon is certainly not unique to Texas, but Texas politicians have campaigned shamelessly on the strength of their commitment to ever more executions. In the 1990 gubernatorial race, former Governor Mark White portrayed his "toughness" by walking through a display of large photos of people executed during his term, while Attorney General Jim Mattox insisted that he was the one who should be given credit for the many executions under his watch. And the Republican candidate, Clayton Williams, claimed that his proposed laws to expand the death penalty were "the way to make Texas great again." [5]

The end result of all this political posturing was a spoof of Texas on "Saturday Night Live" and the election of Ann Richards as governor. Governor Richards was the least vociferous of the candidates on the death penalty but has nevertheless presided over a dramatic increase in the pace of executions in Texas.

Convicting the Innocent

Among elected state prosecutors, death penalty rhetoric has sometimes spilled over into serious abuses in order to secure a death sentence. Two of the most famous Texas examples of this misconduct involved Randall Dale Adams and Clarence Brandley, both of whom were released from Texas' death row after years of struggle to prove their innocence. Adams' story was eloquently told in the award winning movie, The Thin Blue Line, and Brandley's struggle with Texas racism is related in Nick Davies' book, White Lies.

The original convictions of Adams and Brandley were not simply the product of honest prosecutorial mistakes. When Randall Dale Adams had his murder conviction unanimously overturned by the Texas Court of Criminal Appeals, Judge M. P. Duncan sharply castigated the prosecution: "[T]he State was guilty of suppressing evidence favorable to the accused, deceiving the trial court during the applicant's trial, and knowingly using perjured testimony." [6]

"The State was guilty of suppressing evidence favorable to the accused, deceiving the trial court during the applicant's trial, and knowingly using perjured testimony."

--decision overturning Randall Dale Adams' conviction

Similarly, when Texas Special District Judge Perry Pickett reviewed Clarence Brandley's conviction in 1987, he concluded that the state's investigative procedure was "so impermissibly suggestive that false testimony was created, thereby denying . . . due process of law and a fundamentally fair trial."[7] Furthermore, the state had "wholly ignored any evidence or leads to evidence that might prove inconsistent with their premature conclusions that Brandley had committed the murder. The conclusion is inescapable that the investigation was conducted not to solve the crime, but to convict Brandley."[8]

In their zeal to obtain capital convictions, Texas prosecutors have made wide use of medical "experts" selected because of their willingness, in case after case, to parrot the exact words the prosecutor needs to get a conviction. One such "expert" is Dr. James Grigson -- or "Dr. Death," as he came to be known.

Dr. Death, I

In Texas, jurors are required to determine "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." [9]

Not only is it difficult for a lay person to make such a judgment, it is also impossible for professionals. Naturally, a jury would give considerable weight to a state psychiatrist who unhesitatingly predicts with scientific certainty that the person sitting in front of them will invariably kill again if he [10] is allowed to live.

Dr. James Grigson offered just such predictions in at least 124 death penalty cases, 115 of which resulted in death sentences. [11] Dr. Grigson traveled the plains of Texas offering his testimony in exchange for sizable fees. At first, Grigson would personally examine the defendant, perhaps for 90 minutes. Based on this cursory interview, Dr. Grigson would then be asked by the prosecutor in court:

Can you tell us whether or not, in your opinion, having killed in the past, he is likely to kill in the future, given the opportunity?
Grigson would reply:
He absolutely will, regardless of whether he's inside an institutional-type setting or whether he's outside. No matter where he is, he will kill again.[12]
Grigson made these same predictions about Randall Dale Adams, despite Adams' having no history of violence. The fact that Adams was exonerated of all charges and was freed from prison a number of years ago has done nothing to sway Grigson's certainty about his predictions. [13]

In later cases, Grigson would offer his absolutely certain view of the future without even interviewing the defendant. He would simply listen to the prosecutor's description of the defendant's crime and background and then offer the conclusion that such a person would certainly kill again, no matter what the setting.

The American Psychiatric Association has unequivocally condemned the process that Dr. Grigson has used so liberally. "[P]sychiatric testimony of future dangerousness impermissibly distorts the fact-finding process in capital cases," [14] they said in a brief to the Supreme Court.

Moreover, empirical studies have shown the inaccuracies of predicting future dangerousness. One study in Texas examined 92 former death row prisoners whom juries had sentenced to death because of their future dangerousness. For various reasons, these inmates had their sentences changed from death to life imprisonment. The study concluded:

Overall these former death row prisoners were not a disproportionate threat to the institutional order, other inmates, or the custodial staff. Indeed, their total rate of assaultive institutional misconduct was lower than those of both the capital murder offenders who were given a life sentence [to begin with] and the general prison population.[15]

Despite the unreliability of such predictions, Dr. Grigson's testimony has been used by the prosecution in one-third of Texas' death sentences.[16] The problem of manipulating juries with fear is compounded by Texas law which forbids telling the juries what the alternative to a death sentence really means. A life sentence in a capital case in Texas now means that the defendant must serve 40 years before even being considered for parole. But jurors are told only that their alternatives are the death penalty or a life sentence. They are left with their erroneous assumptions that a life sentence will allow a dangerous murderer to be released in 10 years or less. [17]

Dr. Death, II

Another critical element of the prosecution's case in a capital trial is proof that the victim's death resulted from the defendant's violent actions. To tie that knot, many prosecutors in Texas have utilized a pathologist by the name of Ralph Erdmann, who has also earned the name "Dr. Death." Erdmann received his medical degree in Mexico in the 1950s and traveled to 40 Texas counties supposedly performing 400 autopsies a year in capital and non-capital cases. Lubbock County alone paid Dr. Erdmann $140,000 a year for his work. Now the verdicts in at least 20 capital murder cases and dozens of other prosecutions are being appealed because Erdmann lied, falsified reports and even neglected to perform some of the autopsies he testified about. [18]

Erdmann's word began to be doubted when one family read his autopsy report indicating that the deceased's spleen had been examined and weighed as part of the examination. However, the family knew that the dead man's spleen had been removed years earlier. As a result of the family's intervention, the body was exhumed and no incision marks from an autopsy were found.[19] At that point, attorney Tommy Turner of Lubbock was appointed special prosecutor to look into Erdmann's deceptions. Turner concluded that Erdmann was a liar and a con man: "If the prosecution theory was that death was caused by a Martian death ray, then that was what Dr. Erdmann reported."[20]

"If the prosecution theory was that death was caused by a Martian death ray, then that was what Dr. Erdmann reported."

--Special prosecutor Tommy Turner

Killing the Messenger

When Erdmann's methods and testimony came under increasing criticism in death penalty cases, some prosecutors retaliated by prosecuting Erdmann's critics. Two police officers, Patrick Kelly and William Hubbard from Lubbock County, who had testified about Erdmann's misdeeds, were indicted for alleged perjury. And nationally famous death penalty defense attorney, Millard Farmer of Atlanta, was indicted for supposedly tampering with a witness. However, this effort to cover-up the growing scandal around Dr. Erdmann fell apart.

A federal District Court judge ordered a halt to the prosecutions and stated that those being attacked "have offered substantial evidence that the prosecutions were brought in bad faith and for purposes of retaliation." [21]

A suit brought by the police officers and Mr. Farmer against the prosecutors who indicted them was settled in favor of the plaintiffs with the agreement that the prosecutions be permanently stopped, that the policemen be restored to their jobs with full back pay, and that they be awarded $300,000 in damages.[22]

Dr. Erdmann had earlier pleaded no contest to seven felony charges. He was sentenced to 10 years probation, and fined $17,000 for botched autopsies and exhumation expenses. He also surrendered his medical license and moved to another state. [23]

As disgraceful as the behavior of these medical "experts" has been, the real scandal is that prosecutors were willing to repeatedly utilize such witnesses in order to get convictions and death sentences. In other instances, prosecutors failed to investigate cases thoroughly and allowed defendants, later found innocent, to be sentenced to death. Besides Randall Dale Adams and Clarence Brandley, at least four other Texas death row inmates have been found innocent in recent years (Muneer Deeb, 1993; Federico Macias, 1993; John Skelton, 1990; and Vernon McManus, 1987) and that number could increase as further abuse is examined. Unfortunately, this pattern of prosecutorial misconduct in capital cases is not unique to Texas.

NATIONAL IMPLICATIONS:
Official Misconduct The pressure on prosecutors and police to succeed in death penalty cases has resulted in miscarriages of justice all over the country. Representative Don Edwards, Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, released a staff report in October, 1993, recounting 48 cases since 1970 in which the defendants were sentenced to death but later exonerated and released. [24] In many of these cases, the prosecutors or police illegally withheld vital information from the defense, encouraged witnesses to lie, and deceived the court in a variety of ways. In other cases, prosecutors pushed for the death penalty in headline cases in which they lacked sufficient evidence even to sustain a conviction.

For example, when Attorney General Janet Reno was a prosecutor in Dade County, Florida, she helped uncover a pattern of official abuse in the death penalty conviction of James Richardson. Richardson had been sentenced to death for poisoning his own children in 1968. He was spared the electric chair when the Supreme Court overturned all existing death sentences in 1972, but he remained in prison. Reno's 1989 investigation affirmed what had long been claimed by the defense: the state had "knowingly used perjured testimony and suppressed evidence helpful to the defense."[25] Richardson was released in 1989.

Just last year, five people were released after years on death row for crimes they did not commit. [26] In the case of Walter McMillian in Alabama, prosecutors admitted that the case had been mishandled. Evidence was improperly withheld from the defense, the state's three main witnesses all admitted that they had lied, and the "eyewitness" said that he had been pressured to pin the blame for the murder of the young white woman on McMillian, who is black. [27]

In the case of Kirk Bloodsworth in Maryland, prosecutors improperly withheld evidence of a different suspect who bore a striking resemblance to the police sketch in the rape and murder of a young girl. The other suspect had been found in the woods near the murder scene, had a blood-like spot on his shirt, and was very dirty except for his hands, which were meticulously clean. Moreover, the police found a young girl's underwear in this suspect's car. The suspect had a prior conviction for indecent exposure and had failed a polygraph test. [28] Nevertheless, prosecutors sought and obtained a death sentence against Bloodsworth. Fortunately, he was completely cleared in June, 1993, when a new DNA test confirmed that someone else had committed the crime. [29]

Federal prosecutors are also not immune from such practices. If Congress passes a greatly expanded federal death penalty in 1994, U.S. Attorneys will be responsible for a much larger number of death penalty cases. However, recent investigations into abuses in the El Rukin gang prosecution in Illinois and a major racketeering case in Los Angeles in which an appellate court described the government's conduct as "intolerable," [30] have shown that some federal prosecutors also engage in misconduct to obtain convictions.

Attorney General Janet Reno has promised much swifter investigations into allegations of abuse by federal prosecutors. But experience has shown that evidence of prosecutorial abuse, if discovered at all, may come only long after the defendant's conviction. In capital cases that may be too late. This problem raises the almost certain specter that innocent people will be executed, especially if capital punishment is expanded. [31]

2. Racism In Deciding Who Should Die Judge (Roy) Bean opened the session by spending two hours reading the Texas statutes aloud to the courtroom spectators. He then closed the law book, and, dropping it on the bench, declared: "That's . . . the complete statutes of this here state from the Alamo on ahead, and there ain't a damned line in it nowheres that makes it illegal to kill a Chinaman. The defendant is discharged."

--Judge Roy Bean, presiding at the trial of his son for murdering a Chinese laundryman who overcharged him [32] The cop paused and stared at the two of them, the black man in his white T-shirt and shabby jeans, the little white man with the thick glasses and the ballooning belly.

"One of you two is gonna hang for this," said the cop. Then he turned to Brandley. "Since you're the nigger, you're elected."

--Nick Davies in White Lies, quoting testimony leading to Clarence Brandley's release [33]

In 1993, national attention was drawn to two murder cases in Texas. In one case, the defendant was given the death sentence; in the other, he was placed on probation. Although, the cases differ in some respects, the most glaring inequity is that a young white man was given leniency for the murder of a black man, while a young black man was condemned to death for the murder of a white man. This disparity is symptomatic of broader inequities in Texas depending on the race of the defendant and the race of the victim.

Both of those convicted of the crimes were 17 years old at the time of the murders. In the first case, a white supremacist skinhead, Christopher Brosky, was given 10 years probation for the murder of Donald Thomas, a black man. One of the jurors responsible for the sentence commented: "We just felt like this might be a man who might be able to turn his life around . . . . If we had sent him to Huntsville, he might have come back in worse shape." [34]

In the second case, a young black man, Gary Graham, was given the death penalty for the murder of Bobby Lambert in Houston back in 1981. Graham has been on death row in Huntsville ever since. Both cases have split the community and resulted in demonstrations raising issues of race and the administration of justice. Graham's case gained particular attention in 1993 because of new evidence pointing to his innocence. [35] His execution has been stayed three times, but he remains on death row.

Racism in Texas' Earlier Use of the Death Penalty

Outcomes based on race in death penalty cases have a long history in Texas. From the time of the first state executions, the race of the defendant played a large role in who was given the death penalty. For example, between 1924, when centralized state executions were begun, and 1972, 361 people were put to death in Texas. About 70% of them were either African- or Mexican-American, with blacks constituting 63% of those executed.[36] Of the whites sentenced to death during this period, 34% had their sentences commuted. Only 20% of the blacks received clemency. [37]

The race of the victim was an even more certain predictor of which cases would receive the death penalty. Prior to 1972, 80% of the victims in Texas death penalty cases were white. [38] In rape cases where the death penalty was applied, 95% of the victims were white. When a black man was convicted of raping a white woman, the sentence was virtually always death. No white man, however, was executed for raping a black woman. [39]

Before 1924, central state records on executions were not compiled, since the death penalty was carried out locally. However, Texas' part in the history of lynchings in the U.S. reveals an even more severe practice of racial bias. In post-Civil War Texas, lynchings were often used as a form of punishment and intimidation. Not surprisingly, almost all of those who suffered this illegal form of vigilante justice were black. From 1889 to 1899, over 95% of the recorded lynchings in Texas were of blacks. [40] The geographical pattern of lynchings in Texas closely followed those areas where slavery had been most prevalent. [41]

As part of a response to the embarrassment of racial lynchings, state legislators voted to move executions to a central state location in Huntsville and to change the method of execution from hanging to the electric chair.[42] Interestingly, the warden of the Huntsville prison, Captain R.F. Coleman, resigned over this unwanted duty, saying: "A warden can't be a warden and a killer too. The penitentiary is a place to reform a man, not to kill him." [43] Coleman was replaced by a more accommodating warden, and four days later on Feb. 8, 1924, the State of Texas electrocuted its first five prisoners, all black.[44]

"Coleman was replaced by a more accommodating warden, and four days later on Feb. 8, 1924, the State of Texas electrocuted its first five prisoners, all black."

Racism in the Current Use of the Death Penalty

Racial discrimination in the application of capital punishment was one of the factors that led the U. S. Supreme Court in 1972 to throw out virtually all existing death penalty statutes and sentences. Their ruling required states to more carefully craft new statutes that narrow the class of defendants who can receive the death penalty. Texas was one of the first legislatures to approve new death penalty laws, less than one year after the High Court's decision. In 1976, when the Court allowed the death penalty to resume, the Texas statute was one of three such laws that the Court approved.

The racial composition of Texas' death row has improved only slightly since the death penalty resumed. The percentage of minorities on Texas' death row has decreased from 70% to 55%, still a large disproportion. However, the racial disparities with respect to victims has changed little. In capital cases, if you murder a white person in Texas, you are over five times more likely to receive the death penalty than if you murder a black person.[45] In none of the 74 Texas executions was the victim black and the defendant white. In fact, a recent Texas study of homicide cases between 1980 and 1988 found that no white offender who killed a black victim has even been charged and convicted with capital murder. [46]

Racism in the death penalty does not fully explain the pace of executions or the size of death row in Texas. However, it is a recurrent and largely untreated sore which skews the use of the death penalty in Texas and eats away at the hope for better relations among the races. A Texas governmental report showed that racial disparities are evident in other areas of criminal justice, as well. For example, the incarceration rate for blacks in Texas is over eight times the rate for whites. [47] Almost half of black offenders are sentenced to prison, but less than one-third of white offenders are so sentenced. [48]

But in many respects, the racial problems in other states are as severe as they are in Texas.

Source: NAACP Legal Defense & Educ. Fund, Death Row USA (1/94)

NATIONAL IMPLICATIONS:
Race and the Death Penalty Racism is also apparent in national death penalty statistics. Half of those on death row are from minority populations that make up only 20% of the country's population. Blacks are represented on death row at three and a half times their proportion in the population as a whole. As is the case in Texas, however, the form of racial discrimination which is most directly attributable to capital punishment concerns the race of victims.

Blacks constitute about 50% of the victims of homicide in this country.[49] One might expect, therefore, that the percentage of death penalty cases involving black victims would approximate 50%. That has never been the case, and all the reforms instituted at the insistence of the Supreme Court in 1976 have done nothing to alleviate the problem.

Since 1976, 84% of the victims in the cases resulting in an execution were white. In 1993, the numbers were even worse: 89% of the cases resulting in an execution involved white victims. Only one out of the 226 executions between 1976 and 1993 involved a white defendant who had killed a black victim. This represents a consistent pattern since the founding of this country.

In all, only 31 of the over 18,000 executions in this country's history involved a white person being punished for killing a black person.[50] In 1990, the U.S. General Accounting Office reviewed the existing studies on racism and the death penalty in the United States and concluded:

Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision.

In 82% of the studies, race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.[51]

The federal government's use of the death penalty has been even more racially disproportionate than the states. Under a new 1988 statute aimed at murders by drug "king-pins," almost 90% of those approved by the Attorney General for capital prosecutions have been either black or Hispanic defendants. [52]

"[T]hose who murdered whites were found more likely to be sentenced to death than those who murdered blacks."

--U.S. General Accounting Office

The continuation of racial disparities in the use of capital punishment is an embarrassment for the entire country. The riots following the verdict in the first Rodney King beating case in California indicate the serious repercussions possible when a jury appears to ignore the facts and decide a case based on the status of who committed the crime and who was the victim. There have been some Congressional attempts to rectify the problem in capital cases, but these were defeated when prosecutors argued that any law that prohibited racially disproportionate death sentencing would mark the end of the death penalty in the entire country.

This ongoing problem of racial disparities was addressed by Supreme Court Justice Harry Blackmun in his dramatic dissent to a death penalty ruling: "Even under the most sophisticated death penalty statutes," said Blackmun, "race continues to play a major role in determining who shall live and who shall die." He announced that he would no longer "tinker with the machinery of death" because he had concluded that "the death penalty experiment had failed." [53]

As the number of people on death row and the number of people executed in this country continue to grow, the patterns of racial disparity will become clearer and more disgraceful. What has been a perennial problem in Texas' administration of the death penalty will become apparent as a national problem as well.

"Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die."

--Justice Harry A. Blackmun

3. The Crisis of Representation in Texas You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say.

--entire defense offered by a Texas attorney for his client, Jesus Romero, at a capital sentencing [54]

The state [of Texas] paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for."

--U.S. Court of Appeals overturning Federico Macias' death penalty conviction[55]

The enormity of the death penalty in Texas has overtaken the state's willingness to mete this punishment out with even a modicum of fairness and due process. Of all the factors which determine whether or not a particular defendant will ultimately receive the death penalty, probably the most important is the quality of representation he or she receives. In Texas, death penalty defendants are frequently given inexperienced and underpaid attorneys at trial. For some critical stages of their appeal, the defendants are given no attorney at all.

As in other states, almost everyone who is charged with a capital crime in Texas cannot afford his own attorney. The state is therefore required to provide him with one. Texas delegates that responsibility to the local county which is trying the case. The State of Texas itself provides no funds for the representation of those charged with a capital crime. The selection and qualifications of the attorney, the fee he or she will be paid, and the amount of resources which will be made available for investigation and expert witnesses are totally in the hands of the 375 local judges, who have widely varying economic resources.

In the larger counties, such as those encompassing Houston or Dallas, the judge might select from more experienced defense counsel and pay them a higher rate. In poorer counties, a general practitioner might be chosen and paid as little as $800 for an entire case. [56] In Randall County, for example, defense counsel Mallory Holloway was told that he had better not ask for investigation funds since he had already drained the county's budget by insisting on co-counsel. [57]

Recently, the State Bar of Texas commissioned a study of the system of representation in death penalty cases. A comprehensive report prepared by the Spangenberg Group of Massachusetts was released in March, 1993. The report found that capital representation in Texas was plagued with tremendous problems at both the trial and appellate level. It described the lack of counsel and the inadequacy of funding as "desperate" and "urgent" and 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.[58]
Representation At Trial The problem of representation in capital cases in Texas is multi-layered, beginning at the trial stage. Texas is the only death penalty state which makes practically no use of a public defender system to provide attorneys. Instead, Texas allows each county to secure counsel through the private bar, often on a contract basis. The county judges can individually determine what they believe to be a "reasonable attorney fee" and compensation for "reasonable expenses." Until 1987, the statute regarding payment of attorneys for such work made no mention of compensation for the investigation, research and consultation with experts before trial. The statute did provide minimum payments for in-court appearances and these often became the de facto maximum paid to attorneys for the entire case. Although the statute was changed in 1987, the rates paid in many counties did not change, and Texas' compensation for court-appointed attorneys remains near the lowest in the country. [59] The prosecutors, on the other hand, represent a team of salaried state employees with ample resources and ready access to other law enforcement agencies for investigating and pursuing their cases. [60]

The rate of compensation often determines the quality of representation. The Spangenberg Report concluded that defending death penalty cases in Texas is frequently a losing financial venture for attorneys: "The rate of compensation provided to court-appointed attorneys is absurdly low and does not cover the cost of providing representation." [61] Without adequate compensation, it would be unrealistic to expect the consistent provision of a thorough defense. The consequences of poor representation can be disastrous. Federico Macias, for example, came within two days of execution in Texas because his trial attorney did almost nothing to prepare for trial. Today he is a free man, thanks to volunteer counsel from a large Washington law office that intervened just before Macias' execution. With qualified counsel and ample resources, Macias was not only granted a stay of execution but was eventually cleared of all charges in 1993. The federal court's order overturning the conviction noted that the first attorney had missed evidence of Macias' innocence:

We are left with the firm conviction that Macias was denied his constitutional right to adequate counsel in a capital case in which actual innocence was a close question. The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for.[62]
Another man who was freed from death row this past year in Texas was Muneer Deeb. Deeb said he was poorly represented at his first trial. At his re-trial, however, he was represented by one of Texas' best known criminal attorneys, Dick DeGuerin, and was acquitted of all charges. [63] Other death row inmates who may also be innocent are not so fortunate.

Post-Trial Representation: A Desperate Situation

Access to the appeals process is critical to sparing the lives of those who are mistakenly sentenced to death. Former Texas death row inmates like Randall Dale Adams, Clarence Brandley, Federico Macias, and Muneer Deeb were extremely fortunate that others became interested in their cases and helped them attain freedom. But Texas has severely limited that access by not providing attorneys during critical appeal stages. And most recently, the state has even pushed for executions prior to the completion of a defendant's appeals.

Death row inmates are entitled to representation for only one direct state appeal of their conviction or sentence. After that appeal, Texas generally provides no attorney for subsequent appeals. Unless some court grants a stay, execution warrants can be signed and carried out despite the fact that an inmate might have significant issues requiring state and federal review.

With respect to this period of post-conviction representation, the Spangenberg Report found that:

[T]he situation in Texas can only be described as desperate. The volume of cases is overwhelming. Presently no funds are allocated for payment of counsel or litigation expenses at the state habeas level.[64]
Whereas most other states have a system for appointing and compensating attorneys after the direct appeal is over, [65] Texas leaves this important step to the discretion of the local judge. In almost every case, no attorney is appointed for state post-conviction relief, and those who do the legal work do it without pay. Similarly, funds for expert witnesses and expenses are almost never approved. [66]

With the defendant unrepresented, local prosecutors have recently begun to push for executions, and some local judges are no longer granting stays until an attorney can be found. The dangerous consequences of this procedure were seen in the recent case of Lesley Lee Gosch, who was scheduled to die just after midnight on September 16, 1993 and who had no attorney. Despite the fact that the Texas Attorney General's office acknowledged that Gosch still had legitimate appeals to pursue, the prosecution persuaded federal District Judge Hippo Garcia to refuse a stay of execution, which was just hours away.

As time was running out, the Texas Resource Center told Judge Garcia that an attorney had been found to represent Gosch. The Judge still refused to stay the execution and instead appointed the Resource Center to represent Gosch. Finally, just 25 minutes before the execution, with the inmate already being prepared for the lethal injection, Judge Garcia relented and granted a stay because, he said, new unresolved legal questions deserved review.[67] Jay Jacobson, Executive Director of the ACLU of Texas, sharply criticized this unnecessarily close call: "Texas justice is in mortal danger of reverting back to the speedy vigilantism of Roy Bean; a rush to judgment in place of justice." [68]

In response to this crisis, the Texas Resource Center recently brought a case before the U.S. Supreme Court to clarify the federal courts' authority to stay executions while attorneys are being found to properly prepare death row appeals. [69] In an amicus curiae brief filed supporting the Resource Center's position, the American Bar Association called Texas' attempted denial of an opportunity to appeal a "perverse process" which "effectively nullifies the Great Writ" of habeas corpus. [70]

Thus, the death penalty in Texas is caught in a spiraling crisis:

  • The volume of cases in Texas which has reached the post-conviction stage surpasses that of any other state and is exhausting the supply of volunteer attorneys from Texas and around the country.
  • No state funds are available for carrying on the appeals necessary to prevent an inmate's execution, thus discouraging attorneys who might represent death row inmates. [71]
  • With the defendant unrepresented, the state pushes ahead for executions. Death warrants are signed, putting prospective volunteer attorneys under more pressure and creating even more reluctance to take these cases.
The Texas Resource Center

In response to the inadequate system of representation for death row inmates in Texas, representatives from the University of Texas School of Law and a committee of attorneys concerned about the crisis proposed a resource center to recruit and train volunteer attorneys to handle death penalty cases after the direct appeal. The Texas Resource Center was created in 1988 and receives the bulk of its funding from the federal government's Administrative Office of the U.S. Courts.

With over 360 people on death row and with new cases being constantly added to the list, there is no way that the 16 attorneys of the Resource Center can represent even a significant proportion of the appeals. The Resource Center recently estimated that more than 75 death row inmates in Texas had no representation, many of whom were scheduled for execution within 5 weeks.[72] Much of the Center's efforts go into recruiting and assisting counsel from other

states who agree to represent Texas' death row inmates. Despite Texas' relatively high rate of executions, the situation would be much graver without the Resource Center. The Spangenberg Report concluded that the Resource Center's staff provides "an invaluable array of services under truly unique pressures and circumstances." [73] They are not staffed, however, to fill all the gaps created by Texas' failure to appoint and pay counsel in capital cases.

Not surprisingly, the Resource Center's pursuit of legal representation and their success in stopping many executions has drawn reactions from prosecutors and politicians intent on an expeditiously functioning death penalty. There have been attempts to discredit the Resource Center in the media and to have Congress withdraw its funding. [74] These challenges have, in turn, been met by prominent members of the Texas Bar, some of whom serve on the Board of Directors of the Resource Center.[75] The dispute illustrates the highly political nature of the death penalty in Texas.



The Pressure to Execute: A Chronology February 17 Federal District Court judge grants a stay to hear constitutional claims regarding the execution of an innocent person.

February 18 Texas Attorney General's office obtains a Circuit Court order vacating the stay on the grounds that a claim of innocence is irrelevant in federal court.

9:30 PM Defense attempts to obtain another stay of execution from the state or federal courts.

10:00 PM Request for stay filed with U.S. Supreme Court.

12:05 AM Defense checks with local weather station regarding the exact time of sunrise: Texas law requires that the execution take place before sunrise on the appointed day.

1:00 AM Supreme Court rejects stay by vote of 5-4.

4:30 AM Supreme Court again refuses to stay execution but indicates it will entertain a request to review the issue of executing the innocent.

4:35 AM State of Texas informs attorneys that it will begin the lethal injection of Herrera in 30 minutes if a stay is not in place.

4:35-6:20 AM Frantic efforts to obtain a stay from state and federal courts; two members of the Texas Court of Criminal Appeals and a federal District Court judge agree to stay execution so the Supreme Court can hear the case; Texas Attorney General attempts to have stays vacated; State court stay upheld.

6:20-6:55 AM Silence regarding Herrera's status.

7:00 AM Clerk of Supreme Court announces that state court stay is valid.

7:08 AM Texas sunrise: no execution. [76]

Leonel Herrera's case was eventually argued before the Supreme Court eight months later, in October 1992. He argued that he should be given a hearing to review new evidence of his innocence and that it would be unconstitutional to execute someone who was innocent. Witnesses, including a former Texas judge, revealed that Herrera's brother had actually confessed to the crime. A decision was reached on January 25, 1993, with Herrera losing on a vote of 6-3. Herrera was executed on May 12, 1993.

NATIONAL IMPLICATIONS:
The Crisis in Representation The crisis in death penalty representation is starting to spread to other death penalty states as well. Because of the number of people on Texas' death row and the rate at which those people are now being processed for execution, the problem in Texas is more acute than in other places. But the size of the national death row is also increasing rapidly: at

least 250 people are sentenced to death each year and other states are experiencing both a shortage of attorneys and a shortage of funds to pay for the death penalty.

A six month study by The National Law Journal of death penalty representation in the south concluded:

Southern justice in capital murder trials is more like a random flip of the coin than a delicate balancing of the scales. Who will live and who will die is decided not just by the nature of the crime committed but equally by the skills of the defense lawyer appointed by the court. And in the nation's Death Belt, that lawyer too often is ill-trained, unprepared and grossly underpaid.[77]
The study found high disbarment rates for attorneys who represented death row inmates, widespread inexperience among those appointed to capital cases, and wholly unrealistic caps on the funds available for defense. With limits on attorneys' fees of $1,000 in states like Alabama, Louisiana, and Mississippi, lawyers offering even minimal representation were working for $5 an hour.[78] Such meager pay obviously can affect performance.

In Tennessee, a state not included in the Law Journal study, it is not uncommon for trial attorneys to spend less than 100 hours preparing a capital case, while it typically takes over 1,000 hours in other states. In two death row cases, the attorneys spent 10 and 16 hours respectively preparing for trial. [79]In 17 Tennessee cases, no mitigation evidence whatsoever was offered during the penalty phase of the trial. Under Tennessee law, if no mitigation evidence is presented, the court is compelled to direct a sentence of death, assuming the prosecutor has presented aggravating circumstances.[80]Tennessee has one of the lowest compensation rates for indigent defense in the country: $20/hr. for out-of-court time and $30/hr in-court. [81]

In contrast, the state of Ohio allowed $40,000 for two attorneys in capital cases. [82] In California, attorneys are paid about $75 an hour and total fees often exceed $100,000 just for the appellate work. [83] But even in California, which recently surpassed Texas as the state with the largest death row, nearly a third of those on death row lack lawyers for their appeals. [84]

In Georgia 60 of the 80 people on death row who have gone beyond their direct appeals are being represented by lawyers from outside the state. "Many [Georgia] firms view defending a person on death row as politically unpopular, bad public relations and bad business," said Robert Remar, who heads a state bar committee to correct the problem. [85]

Ronald Tabak, chair of the ABA's Individual Rights and Responsibilities death penalty committee, said that the situation is "getting materially worse because demand for lawyers is growing substantially as the number of inmates moving into state post-conviction and federal habeas proceedings is increasing."[86] States like California, Ohio, Pennsylvania and Illinois, with bulging death rows but few executions so far, are a warning that the crisis in death penalty representation will soon be spreading.

4. Clemency in Texas The U.S. Supreme Court recently ruled in the Herrera case that a defendant with a claim of innocence still has the opportunity to apply for executive clemency. [87] Even though Texas has by far the most death row inmates who have reached the end of their appeals and whose last chance for relief lies with the governor, there have been no commutations granted at a defendant's request since the death penalty was reinstated. [88] Texas has refused clemency in one case where it was requested by the prosecutor and by the father of the victim, [89] and in another case where it was even requested by the Pope. [90] Clemencies have been rare in other states as well, but most of those states have had few inmates who had exhausted all their appeals and sought clemency.

The case of Gary Graham, discussed above, is testing the seriousness of Texas' clemency procedure. Graham was convicted and sentenced to death on the basis of one eyewitness who viewed him only from a distance at night. New evidence indicating that Graham may be innocent has emerged, but it has been barred by Texas procedural rules which forbid introducing new evidence more than 30 days after a conviction. [91]

Graham was denied clemency and the Pardon Board did not even meet to hear his evidence. He has filed a suit claiming that his due process rights have been violated because he was not given a hearing by the Pardon Board. The Graham case tests whether there is any substance to Texas' clemency process. Texas courts are still considering whether the Board will be required to hold the hearing and possibly spare Graham's life. But regardless of the outcome in Graham's case, clemency in Texas has not been the safety-valve recommended by the High Court.

NATIONAL IMPLICATIONS: Clemency With respect to clemency, the extreme hesitancy of governors to utilize this process in death penalty cases is also a national problem. Clemency used to be granted more liberally by governors in capital cases. Prior to the Furman decision in 1972, commutations were granted in approximately one in five death sentenced cases. The current rate is roughly one out of forty. [92] The increased politicization of the death penalty has meant that a governor could suffer a sharp decline in popularity for granting a commutation.[93] Indeed, of the 31 clemencies granted since 1972, more than half were by governors as they were leaving office. [94]

Thus, despite the Supreme Court's assurances that clemency exists as a protection against executing an innocent person, it has never been used in Texas, or most other death penalty states, since 1972. As long as the issue of capital punishment is thought of as a litmus test for politicians to attain and retain office, the prospect of clemency for any death row inmate will remain dim.

5. Texas Crime And the State's Response The word 'crisis' is used far too often in politics and government -- but a crisis is precisely what Texas faces today.

The Texas criminal justice system is failing.

--Report from the Texas Office of the Comptroller [95]

Closely intertwined with the death penalty is the broader response which a state makes to the problem of crime. Not surprisingly, the turmoil exhibited in Texas' administration of the death penalty is reflected in an even larger crisis with crime. In the same period in which Texas moved from its first execution in 1982 to become the undisputed leader in the use of the death penalty, the state also experienced a tremendous growth in its violent crime rate. From 1982 to 1991, the national crime rate rose by 5%. In the same period, the Texas crime rate rose by 24%, and the violent crime rate in Texas rose by nearly 46%. In 1990, Texas earned the dubious distinction of being the first state in which more people died from gunshot wounds than from traffic accidents. [96] In 1991, Texas' overall crime rate was third in the nation, and its murder rate was the second highest.

But the problems in Texas go far beyond mere crime statistics. A recent report from the Texas Office of the Comptroller pointed to a larger crisis in the state's response to crime:

[D]espite the need for real solutions, public debate over crime in Texas revolves around hollow calls for the state to become "tougher." In fact, this is a call for the status quo -- for more of the same, only more so. It is a call for a continuing cycle of cynical quick fixes and stop-gap measures, for costly prison construction that cannot keep pace with the demand for new prison space -- for a constant drain on state and local treasuries that make Texas taxpayers poorer, not safer.[97]

The death penalty is precisely one of those "quick fixes" that drain the taxpayers' money. A 1992 study by the Dallas Morning News reported that each death penalty case, followed through to the federal appeal, is costing taxpayers $2.3 million. That is in line with the costs that other states have projected. New York estimated that each capital case would cost $1.8 million, without including costs past the direct appeal. Florida calculated the cost of each execution to be about $3.2 million. [98]

With over 70 executions since 1976 and close to 400 other people waiting on death row, Texas has likely spent several hundred million dollars on the death penalty, far more than it would have if there were no death penalty and people were sentenced to life imprisonment.

As a response to crime, then, the death penalty is exceedingly expensive and focuses on only a tiny fraction of the problem. Nevertheless, politicians throughout Texas have consistently seized on the death penalty as an answer to violence. They have pushed the death penalty at every possible turn and have lashed out at anyone opposing them. But when the causes of crime are rooted in guns, gangs, drugs, and the deterioration of the social fabric, capital punishment offers nothing in the way of a solution.

The Winds of Change

Crime was recognized as a paramount problem in Texas well before national media attention began to focus on crime. In the 1990 gubernatorial race, the candidates tripped over each other in an effort to look tougher in their responses to violence. The death penalty became the leading symbol of toughness. In fact, populist Democrat Jim Hightower described the campaign as "a race to see who could kill the most Texans." [99] The rapid rise in the pace of executions in Texas also began in 1990, but now dissatisfaction with both the process and the results is starting to emerge.

Jim Mattox, the former Attorney General of Texas who oversaw 36 executions in the state, was one of the candidates for governor who campaigned on his support for the death penalty. But cases like Gary Graham's and Clarence Brandley's, which raised the prospect of innocent people being executed, have given him second thoughts.

For one thing, Mattox doesn't believe the death penalty is a deterrent to crime: "It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law," he said.[100] "I think in most cases you'll find that the murder was committed under severe drug and alcohol abuse." [101]

As an alternative to the death penalty, he suggests a sentence of life without parole, which other Texas prosecutors have resisted so far: "Life without parole could save millions of dollars," said Mattox. "It currently costs three times as much -- more than $2 million per inmate -- to carry out the death sentence than to keep an inmate in prison for 40 years."

"In other words," he wrote, "it's cheaper to lock 'em up and throw away the key . . . . As violent crime continues to escalate, it's something to consider." [102]

Others in law enforcement agree. Norman Kinne, First Assistant District Attorney of Dallas County, praised a new Texas law which allowed sentences for life with no possibility of parole for 35 years (now 40) [103]: "I think we can take more violent offenders out of society for longer periods of time with less expense to the taxpayers."[104]

He pointed out that the new law can also bring a sense of finality to the victim's family: "On a death penalty case, I can't ever tell them they won't have to come back and live it all over again. This can go on ad nauseam." But under the new life sentence law, "there's a finality to all this." [105]

On another occasion he said:

"Even though I'm a firm believer in the death penalty, I also understand what the cost is. If you can be satisfied with putting a person in the penitentiary for the rest of his life . . . I think maybe we have to be satisfied with that as opposed to spending $1 million to try and get them executed."[106]
Dr. George Beto, who headed the Texas prison system for ten years, also favors the death penalty in theory but opposes it in practice. He has clearly recognized some of the problems with the application of capital punishment: "[I]n a democratic society like ours, the death penalty is capriciously and inequitably administered. Whether a person is convicted depends on the quality of his defense, the hysteria of the moment in the community and the culture."[107]

And in Washington, some of Texas' Congressional delegation have been leading the way towards alternatives to the death penalty. Rep. Craig Washington (D-TX) has spearheaded the effort to present an alternative federal crime bill which excludes the death penalty and emphasizes a range of positive responses to crime, and Rep. Henry Gonzalez (D-TX) is the perennial sponsor of a constitutional amendment to end the death penalty altogether.

Meanwhile, juries in Texas are also beginning to see things differently, especially with the availability of longer guaranteed sentences. Formerly, criminals in Texas were serving only 20% of their sentence and some of those with life sentences were released after only five years. [108] Now that life can mean no parole for 35-40 years, juries have real alternatives to a death sentence. Dallas County District Attorneys, for example, used to have a perfect record when seeking the death penalty. But three of the past six capital cases have ended in life sentences. "Sometimes it makes you think the public isn't 100 percent with you," said Assistant District Attorney Hugh Lucas, who recently "lost" a capital case when it ended in a life sentence for Anthony Hampton. [109]

NATIONAL IMPLICATIONS:
The Crime Problem The issue of violent crime has now reached national prominence as well. Politicians all over the country have been using the headlines of crime to promote the death penalty as a quick fix solution. If the people buy this promotion as they did in Texas, then it is likely that other states will match Texas' high rate of executions. The federal government, for example, has increased death penalty prosecutions and is seeking ways to greatly expand their role as a response to the national problem of violence. States like New York, Kansas, and Alaska have all been considering reinstating capital punishment.

On the other hand, states that have used capital punishment extensively, like Texas, have been beset with its problems. The death penalty has failed to reduce the number of murders, it has proved enormously expensive, and there continues to be the uncomfortably present danger of executing an innocent individual. As a result of these problems, some states are relying more on the alternative of life sentences with severe restrictions on parole.[110] The political tug of war between more and faster executions on the one hand, and more efficient and effective ways of reducing crime on the other, is a battle raging in the entire nation, as well as in Texas.

CONCLUSION:
Foreshadowing A National Crisis The death penalty in Texas is in a state of crisis. Even more alarming, however, is the prospect that what is happening in Texas will be happening across the country if the U.S. expands its use of the death penalty. The size of the national death row, the willingness of the courts to accept the practices utilized in Texas, the increasing pace of executions, the public's concern about crime -- all indicate that the use of the death penalty could become as common nationwide as it is in Texas.

On the other hand, the problems in implementing the death penalty in Texas are a warning to the rest of the country that it is wading into a swamp that it should avoid. The death penalty skews the process of prosecution and leads to official abuse. The death penalty has also been a symbol of racial division. As the numbers of executions begins to rise, the impact of these injustices will force itself more clearly into our consciousness.

Similarly, the costs of the death penalty are not a problem only in Texas. As thousands of cases move into the later stages of appeal and as more and more people are added to death row every year, the costs will become greater and the strain on other crime fighting programs will become more severe. It is clear even to proponents of capital punishment that this expansion of the death penalty will mean that hard choices must be made between preventive methods of law enforcement and more costly and ineffectual executions.

Furthermore, the crisis in death penalty representation, which is closely related to the problem of costs, augurs poorly for the country as a whole. What is a crisis in Texas because of the numbers involved and the scarcity of qualified counsel willing to take these cases, will become a national problem as the number of inmates approaching execution continues to grow.

Such a death penalty may not be acceptable to the American public. Moreover, such a death penalty may not meet the standards of the High Court, which set this experiment in motion 18 years ago. That experiment, as Justices Marshall and Blackmun have pointed out, has so far established that the death penalty remains arbitrary and capricious. Texas has been the nation's crucible for this experiment with the death penalty, and the results of this experiment should speak volumes to those who choose to listen.

References [1]. Speech at Annual Dinner in Honor of the Judiciary, American Bar Association, 1990, quoted in The National Law Journal, Feb. 8, 1993.

[2]. Callins v. Collins, No. 93-7054, slip opin., at 4 (Feb. 22, 1994) (Blackmun, J., dissenting).

[3]. Projections based on Texas population of 17.66 million and United States population of 259 million. The cost projection was based on a cost of $2 million per execution and a national projection of 1,027 executions. See, e.g., P. Cook & D. Slawson, The Costs of Processing Murder Cases in North Carolina (Duke University, May, 1993), at 1 ("the extra cost . . . per execution exceeds $2 million.")

[4]. See note 1.

[5]. See Millions Misspent: What Politicians Don't Say About the High Costs of the Death Penalty, The Death Penalty Information Center, October 1992, at 13.

[6]. M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 71-72 (1992).

[7]. Id. at 133.

[8]. Id. at 134 (emphasis added).

[9]. Texas Penal Code Art. 37.071(b)(2) (Vernon's 1985).

[10]. Since executions were centralized at one state facility in 1924, Texas has not executed any women. There are, however, four women currently on Texas' death row. Since defendants in capital cases are almost exclusively male, the male pronouns will sometimes be used in a generic sense.

[11]. See R. Rosenbaum, Travels With Dr. Death, Vanity Fair, May, 1990, at 142.

[12]. Rodriguez v. Texas, trial transcript, p. 2136 (1978), quoted in J. Marquart, et al., Gazing Into The Crystal Ball: Can Jurors Accurately Predict Dangerousness in Capital Cases?, 23 Law & Society Review 449, 458 (1989).

[13]. See R. Rosenbaum, note 11, at 142.

[14]. Barefoot v. Estelle, 463 U.S. 880 (1983) (amicus curiae brief).

[15]. Marquart, et al., note 12, at 464.

[16]. See id. at 457.

[17]. Although the defense can offer their own experts to refute such claims that the defendant will be a danger to society, they are at a distinct disadvantage for two reasons. First, the defense is severely limited in the funds available for such experts. Secondly, even if a psychiatrist could be found who would predict with absolute certaintly that someone would not be a danger in the future, the jury is less likely to believe that claim since it has already convicted the defendant in the underlying crime.

[18]. R. Suro, Impact of a Pathologist's Misconduct Ripples Through West Texas Courts, The New York Times, Nov. 22, 1992, at 22.

[19]. Id.

[20]. R. Fricker, Pathologist's Plea Adds to Turmoil, American Bar Association Journal, Mar. 1993, at 24.

[21]. G. Simmons, Judge Condemn's Ware's Tactics, The Lubbock Avalanche-Journal, Mar. 5, 1993, at 1 (emphasis added).

[22]. V. Salazar, Parties Settle Federal Suit, The Globe News, April 19, 1993, at 1A.

[23]. R. Suro, note 18, at 22.

[24]. Innocence and the Death Penatly: Assessing the Danger of Mistaken Executions, Staff Report by the Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary (1993) (reprint available from the Death Penalty Information Center).

[25]. M. Curriden, No Honor Among Thieves, American Bar Association Journal, June, 1989, at 54 (quoting Janet Reno).

[26]. Walter McMillian (Ala.), Federico Macias (Tex.), Muneer Deeb (Tex.), Kirk Bloodsworth (Md.), and Gregory Wilhoit (Ok.).

[27]. See P. Applebome, Black Man Freed After Years on Death Row, The New York Times, Mar. 3, 1993, at A1.

[28]. Bloodsworth v. State, 307 Md. 164, 173 (1986).

[29]. See P. Valentine, Jailed for Murder, Freed by DNA, The Washington Post, June 29, 1993, at A1.

[30]. A Reno Reform, The Washington Post, Dec. 20, 1993 (editorial).

[31]. See, e.g., Justice Blackmun's comments on ABC-TV's Nightline, in which he said that he believed innocent people have been executed during his term. Transcript, ABC-TV News, Nightline, Nov. 18, 1993.

[32]. M. Radelet, Executions of Whites for Crimes Against Blacks: Exceptions to the Rule?, 30 The Sociological Quarterly 529, 530 (1989) (citing B. Botkin, A Treasury of American Folklore (1944)).

[33]. N. Davies, White Lies: Rape, Murder, and Justice Texas Style 23 (1991) (the story of Clarence Brandley's conviction and eventual exoneration for a murder in Texas).

[34]. J. Floyd & S. Crawford, Skinhead Gets Probation in Murder of Black Man, The Dallas Morning News, Mar. 24, 1993, at 1A.

[35]. See, e.g., N. Hentoff, Death and Reasonable Doubt in Texas, The Washington Post, May 29, 1993.

[36]. J. Marquart, S. Ekland-Olson, & J. Sorensen, The Rope, The Chair, and The Needle: Capital Punishment in Texas, 1923-1990 21-22( 1994).

[37]. Id. at 24.

[38]. Id.

[39]. Id. at 65.

[40]. Id. at 6.

[41]. See id. at 4 & 6, maps 1.1 & 1.2.

[42]. Id. at 14-15.

[43]. Id. at 15.

[44]. Id.

[45]. See J. Sorenson & J. Marquart, Prosecutorial and Jury Decison-Making in Post-Furman Texas Capital Cases, 18 N.Y.U. Review of Law & Social Change 743, 765-72 (1990-91).

[46]. Marquart, et al., note 36, at 169.

[47]. See Criminal Justice Trends in Texas: Overview by Race, Criminal Justice Policy Council of Texas, at 2 (April, 1992) (1991 rates).

[48]. Id. at 8.

[49]. See, e.g., S. LaFraniere, FBI Finds Major Increase in Juvenile Violence in Past Decade, The Washington Post, Aug. 30, 1992, at A13 (half of U.S. murder victims are black).

[50]. See D. Margolick, White Dies for Killing Black, For the First Time in Decades, The New York Times, Sept. 7, 1991.

[51]. U.S. General Accounting Office, Death Penalty Sentencing, February, 1990, at 5 (emphasis added).

[52]. See Racial Disparities in Federal Death Penalty Prosecutions, 1988-1994, Staff Report by the House Judiciary Subcommittee on Civi and Constitutional Rights (March, 1994) (reprint available from Death Penalty Information Center).

[53]. Callins v. Collins, No. 93-7054, slip opin. at 4 (Feb. 22, 1994) (Blackmun, J., dissenting).

[54]. See Romero v. Lynaugh, 884 F.2d 871 (5th Cir. 1989) (Romero was executed in 1992), cited in National Law Journal, see note 56, at 34.

[55]. Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992) (Macias was freed in 1993).

[56]. Fatal Defense, National Law Journal, June 11, 1990, at 34.

[57]. See Hafdahl v. Texas, 69,646 (Texas Crim. App., 1988), cited in Fatal Defense, note 56, at 34.

[58]. The Spangenberg Group, A Study of Representation of Capital Cases in Texas, at 4 & 152 (March, 1993) (emphasis added) [hereinafter Spangenberg].

[59]. Id. at 14-15.

[60]. "State funding pays the salaries of the primary district or county felony prosecutor . . . and provides cash supplements for partial funding of assistants' salaries and other expenses." Texas Crime, Texas Justice 49, Office of the Comptroller (Sept., 1992). There is also an Office of the State Prosecuting Attorney to represent the State's interests in the Court of Criminal Appeals. Id. at 47.

[61]. Spangenberg, note 58, at vi (Major Findings).

[62]. Martinez-Macias, note 55, 979 F.2d at 1067.

[63]. B. Kessler, Fighting the System, The Dallas Morning News, Nov. 4, 1993, at 1A.

[64]. Spangenberg, note 58, at ii (emphasis added).

[65]. Id. at 127.

[66]. Id. at vii.

[67]. M. Graczyk, Death Row Inmate's Lawyers Had Close Call, The Dallas Morning News, Sept. 18, 1993, at 26A.

[68]. ACLU press release, Sept. 16, 1993 (on file with Death Penalty Information Center).

[69]. See McFarland v. Collins, No. 93-1954, on Writ of Certiorari to the U.S. Court of Appeals for the 5th Cir. (argument Mar. 29, 1994).

[70]. Id., Brief of the American Bar Association, at 7.

[71]. Federal funds are available for indigent defendants in federal habeas corpus proceedings. See Anti-Drug Abuse Act, 21 U.S.C. SS 848 (1988). However, federal procedure requires that an inmate first exhaust all possible state remedies. Thus, lack of funds and attorneys at the state level directly affects what, if anything, can be accomplished at the federal level.

[72]. C. Hoppe, Center Sees Crisis in Shortage of Public Defenders for Death Row, The Dallas Morning News, Oct. 27, 1993.

[73]. Spangenberg, note 58, at 9.

[74]. See, e.g., R. Walt, Ending the Death Penalty Chaos, Texas Lawyer, Dec. 6, 1993, at 20 (quoting former Assistant Texas Attorney General: "Unlike any governmental entity, as best as can be determined the [Texas Resource] center is answerable to nobody."); S. Warren, Taking Offense at Death Row Defense, Houston Chronicle, Nov. 7, 1993, at 20A ("Prosecutors, though, were in a lousy mood, complaining of more trouble, more stress and more frustration in their jobs than ever before. Accusing fingers pointed in one direction: the Texas Resource Center.").

[75]. See, e.g., C. Hoppe, note 72 (Resource Center has been responsible for proving the innocence of a number of people on death row but current surge of cases endangers adequate representation); see also letter and accompanying report to Meryl Silverman of the Administrative Office of the U.S. Courts from Edward Sherman, Chair of the Board of Directors of the Texas Resource Center, Oct. 29, 1993, on file with the Death Penalty Information Center; see also, Crisis in Representation of Texas Death Row Inmates, released by the Board of Directors of the Texas Resource Center, Oct. 25, 1993.

[76]. Unpublished chronology from Leonel Herrera's defense attorneys on file with the Death Penalty Information Center (Feb. 20, 1992).

[77]. Fatal Defense, The National Law Journal, June 11, 1990, at 1.

[78]. Id. at 33.

[79]. W. Redick, The Crisis in Representation of Tennessee Capital Cases, Tennessee Bar Journal, Mar./April, 1993, at 23.

[80]. Id. at 24.

[81]. Id. at 25.

[82]. Id. at 32.

[83]. M. Coyle, Death Counsel Shortage Grows, The National Law Journal, Sept. 27, 1993, at 3, 46.

[84]. R. Smothers, A Shortage of Lawyers to Help the Condemned, The New York Times, June 4, 1993.

[85]. M. Curriden, Ga. Bar Calls on Local Lawyers, The National Law Journal, Dec. 6, 1993, at 3.

[86]. See M. Coyle, note 83, at 3.

[87]. See Herrera v. Collins, 113 S.Ct. 853 (1993).

[88]. There have been 36 commutations granted in Texas for the sake of judicial expediency when the death sentence has been overturned by the courts. In Texas, the trial jury determines the sentence of the defendant in capital cases. If a mistake was made in the sentencing process, the whole case, including the guilt/innocence phase, would have to be tried again before a new jury. To avoid this re-trial, when courts have discovered errors in the sentencing process, the state has frequently asked the governor for a commutation of the death sentence to a life sentence, thus avoiding the necessity for a new trial and possible exoneration of the defendant. These should be distinguished from the cases in which the defendant requests clemency. None have been granted in this latter category. See, e.g., M. Radelet & B. Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 Univ. of Richmond Law Review 289, 293-94 (1993).

[89]. See Slayer of Store Manager Executed Despite Plea By Father of Victim, The New York Times, June 20, 1986, at A13, col. 1.

[90]. See Pope's Plea Stops Execution, The New York Times, Jan. 8, 1992 (Johnny Frank Garrett was granted a 30 day stay by the governor, but was then executed on Feb. 11, 1992).

[91]. A recent ruling by the Texas Court of Criminal Appeals will allow Graham to petition for a new trial based on new evidence. He will have to show that the new evidence "shows that no rational trier of fact could find proof of guilt beyond a reasonable doubt." See S. Verhovek, Texas Opens Door for Death-Row Appeals, The New York Times, April 21, 1994.

[92]. M. Vandiver, The Quality of Mercy: Race and Clemency in Florida Death Penalty Cases, 1924-1966, 27 Univ. of Richmond Law Review 315, 315 n.2 (1993).

[93]. See, e.g., former California Governor Pat Brown's book, Public Justice, Private Mercy: A Governor's Education on Death Row (1989) (with Dick Adler) for a discussion of the political pressures surrounding clemency.

[94]. Governor Tony Anaya commuted all five death row inmates in New Mexico as he left office. Governor Celeste of Ohio commuted eight death sentences at the end of his term. Governor Wilder of Virginia commuted the sentence of Earl Washington in 1994 on his last full day in office.

[95]. See Texas Crime, Texas Justice, note 60, at 119.

[96]. Id. at 4. Also, "[f]or the sixth straight year, Texas was the most deadly state in which to be a law enforcement officer." C. Flournoy, Texas Tops Lethal List for Officers, The Dallas Morning News, Jan. 2, 1994, at 25A.

[97]. Id. at p.119 (emphasis in original).

[98]. For a discussion of the costs of the death penalty, citing the cost studies mentioned, see Millions Misspent: What Politicians Don't Say About the High Costs of the Death Penalty, The Death Penalty Information Center, October 1992.

[99]. See id. at 13.

[100]. R. Dugger, In the Dead of the Night, The Texas Observer, April 22, 1988, at 7.

[101]. Id.

[102]. J. Mattox, Texas' Death Penalty Dilemma, The Dallas Morning News, Aug. 25, 1993.

[103]. For crimes after Sept. 1, 1993, the sentence is no parole for 40 years. See S. Scott, Prosecutors Find Juries Balking at Death Penalty, The Dallas Morning News, Dec 26.,1993, at 42A.

[104]. D. Barber, Law Could Curb Texas Executions, The Dallas Morning News, April 18, 1993, at 35A, 37A.

[105]. Id. at 37A.

[106]. C. Hoppe, Executions Cost Texas Millions, The Dallas Morning News, Mar. 8, 1992, at 12A.

[107]. Texas Town Leading in Executions In a New U.S. Era of Death Penalty, The New York Times, Sept. 6, 1986, at 8, col. 4.

[108]. See, e.g., B. Denson, The Pros, Cons of Throwing Away Key, The Houston Post, July 14, 1991, at A-1.

[109]. S. Scott, Prosecutors Find Juries Balking at Death Penalty, The Dallas Morning News, Dec. 26, 1993, at 41-42A.

[110]. See, e.g., Sentencing for Life: Americans Embrace Alternatives to the Death Penalty, Death Penalty Information Center, April, 1993, at 19 (decrease in death sentences in states giving jurors the option of life without parole).
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Illinois Death Row Inmates Granted Commutation by Governor George Ryan on January 12, 2003 Illinois Death Row Inmates Granted Commutation

(sentences were commuted to life in prison unless otherwise indicated)

1. ALLEN, KENNETH (B)
2. ALVINE, RONALD (W)
3. ARMSTRONG, DONALD (B)
4. ASHFORD, JAMES (B)
5. BALLARD, MARK (W)
6. BANKS, RANDY (B)
7. BARROW, RONALD (W)
8. BEAN, HAROLD (W)
9. BRISBON, HENRY (B)
10. BRITZ, DEWAYNE (W)
11. BROOKS, TERRENCE (B)
12. BROWN, ANTHONY (B)
13. BROWN, ANTON (B)
14. BURGESS, RAY (W)
15. BURT, RONALD (W)
16. BURTON, PETER (W)
17. BUSS, TIMOTHY (W)
18. CABALLERO, JUAN (L)
19. CAFFEY, FEDELL (B)
20. CASILLAS, ROBERT (L)
21. CASTEEL, LUTHER (W)
22. CEJA, RAUL (L)
23. CHAPMAN, REGINALD (B)
24. CHILDRESS, JOHN (B)
25. CLOUTIER, ROBERT (W)
26. COLE, JR., JOHN (W)
27. COLEMAN, DEDRICK (B)
28. CORTEZ, JUAN (L)
29. DAMERON, TONY (W)
30. DANIELS, ERIC D. (B)
31. DAVIS, CHRIS (B)
32. EASLEY, IKE (B)
33. EDWARDS, DANIEL (W)
34. EMERSON, DENNIS (B)
35. ENIS, ANTHONY (B)
36. EVANS, JOHNNIE LEE (B)
37. EVANS, JR., ROBERT L. (B)
38. FAIR, ROBERT (B)
39. FAYNE, LORENZO (B)
40. FLORES, MARIO (L) (sentence commuted to 40 years)
41. FOSTER, JAMES (B)
42. FRANKLIN, WILLIAM (B) (sentence commuted to 40 years)
43. GANUS, VICTOR (W)
44. GILLIAM, OASBY (B)
45. GOSIER, HARRY (B)
46. GRAHAM, EDWARD (B)
47. GRIFFIN, HENRY (B)
48. GRIFFITH, EVAN (B)
49. GUEST, ANTHONY (B)
50. HALL, ANTHONY (B)
51. HALL, FELIPE (B)
52. HARRIS, DAVID (B)
53. HARRIS, JAMES (B)
54. HARRIS, RALPH (B)
55. HAYNES, JONATHAN (W)
56. HEARD, DELBERT (B)
57. HENDERSON, DEMETRIUS (B)
58. HESTER, JOHN (B)
59. HICKEY, ARTHUR (W)
60. HICKS, JOJULIEN (B)
61. HOLMAN, TAFFORD (B)
62. HOOPER, MURRAY (B)
63. HOPE, EDGAR (B)
64. HUDSON, RENALDO (B)
65. JACKSON, LAWRENCE (B)
66. JAMISON, ERNEST (B)
67. JANES, RON (W)
68. JOHNSON, ANDREW (B)
69. JOHNSON, GRAYLAND (B)
70. JOHNSON, LENARD (B)
71. JOHNSON, MARK (B)
72. JOHNSON, MILTON (B)
73. JOHNSON, MONTELL (B) (sentence commuted to 40 years)
74. JONES, ANDRE (B)
75. JONES, ROBERT K. (W)
76. JONES, WILLIAM T. (B)
77. KARIM, SAMUEL (B)
78. KEENE, WILLIAM (W)
79. KIDD, LEONARD (B)
80. KING, DERRICK (B)
81. KING, MAURICE (B)
82. KIRCHNER, WILLIAM B. (W)
83. KITCHEN, RONALD (B)
84. KLINER, RONALD (W)
85. LASH, DALE (W)
86. LEAR, TUHRAN (B)
87. LEE, ERIC (B)
88. LUCAS, ROOSEVELT (B)
89. MACRI, GENO (W)
90. MAHAFFEY, JERRY (B)
91. MAHAFFEY, REGINALD (B)
92. MATA, BERNINA (L)
93. MCCALLISTER, MAYNARD (W)
94. MCDONALD, MAURICE (B)
95. MCLAURIN, CHARLES (B)
96. MCNEAL, ALDWIN (B)
97. MILLER, JOSEPH (W)
98. MITCHELL, ANTHONY (B)
99. MONTGOMERY, ULECE (B)
100. MOORE, COREY (B)
101. MOORE, EDWARD (W)
102. MORRIS, RICHARD (B)
103. MOSS, SANANTONE (B)
104. MUNSON, JAMES (B)
105. NEAL, JR., JOHN (W)
106. NEILSEN, NEILS (W)
107. NIEVES, HECTOR (L)
108. OAKS, DOUGLAS (W)
109. ODLE, THOMAS (W)
110. OWENS, ROBIN (B)
111. PAGE, PATRICK (W)
112. PECORARO, JOHN (W)
113. PEEPLES, WILLIAM (B)
114. PITSONBARGER, JIMMY (W)
115. PULLIAM, LATASHA (B)
116. RAINES, DANIEL (W)
117. REYNOLDS, SEAN CLAY (W)
118. RICHARDSON, FLOYD (B)
119. RILEY, WILLIAM (B)
120. RISSLEY, JEFFREY (W)
121. SANCHEZ, HECTOR (L)
122. SCOTT, LARRY (B)
123. SHATNER, DARRIN (W)
124. SHURN, KEITH (B)
125. SILAGY, CHARLES (W)
126. SIMMS, DARRYL (B)
127. SIMPSON, ROBERT (B)
128. SIMS, BOBBY (B)
129. SIMS, PARIS (B)
130. SMITH, DAVID (W)
131. SOLACHE, GABRIEL (L)
132. SPREITZER, EDWARD (W)
133. STRICKLAND, TYRONE (B)
134. SZABO, JOHN (W)
135. TAYLOR, PAUL ERIC (W)
136. TENNER, JAMES (B)
137. TERRELL, DREW (B)
138. THOMAS, WALTER (B)
139. TODD, ROBERT (W)
140. TOWNS, SHERRELL (B)
141. TURNER, ROBERT (W)
142. UMPHREY, THOMAS (W)
143. URDIALES, ANDREW (W)
144. WARD, JERRY (B)
145. WATFORD, MARLON (B)
146. WATSON, HENRY
147. WESTRAY, JAMES (W)
148. WILEY, HOWARD (B)
149. WILLIAMS, BOBBY (B)
150. WILLIAMS, DOROTHY (B)
151. WILLIAMS, ELTON (B)
152. WILLIAMS, FRANK (B)
153. WILLIAMS, JACQUELINE (B)
154. WILLIAMS, MICHAEL (B)
155. WILSON, GLENN (B)
156. WOOLLEY, MARTIN (W)
157. WRIGHT, PATRICK (W)

Governor Ryan also granted clemency to additional inmates who had been on death row but who had their sentences vacated and were awaiting a new sentencing hearing. These commutations are being challenged. (Chicago Tribune, January 15, 2003)

158. BRACEY, WILLIAM (B)
159. BROWN, CORTEZ (B)
160. COLLINS, ROGER L. (B)
161. ERICKSON, PAUL S. (W)
162. FULLER, TYRONE (B)
163. KANTU, JUIUS (B)
164. MADEJ, GREGORY (W)
165. MORGAN, SAMUEL (B)
166. ST. PIERRE, ROBERT (W)
167. THOMPKINS, WILLIE (B)


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Flawed Trials Lead to Death Chamber Flawed Trials Lead to Death Chamber CHICAGO TRIBUNE

June 11, 2000

Flawed Trials Lead to Death Chamber
Bush Confident in System Rife with Problem

By STEVE MILLS, KEN ARMSTRONG and DOUGLAS HOLT
Tribune Staff Writers

First of two parts.

AUSTIN, Texas — Under Gov. George W. Bush, Texas has executed dozens of Death Row inmates whose cases were compromised by unreliable evidence, disbarred or suspended defense attorneys, meager defense efforts during sentencing and dubious psychiatric testimony, a Chicago Tribune investigation has found.

While campaigning for president, Bush has expressed confidence in the fairness and accuracy of the death penalty system in Texas, the nation's busiest executioner. He has said he sees no reason for Texas to follow Illinois' lead by declaring a moratorium on executions.

But an investigation of all 131 executions during Bush's tenure found that the problems plaguing Illinois are equally pronounced in Texas and that additional flaws undermine the state's administration of society's ultimate punishment.

While Texas' death penalty system has come under increasing scrutiny since Bush announced his candidacy, the Tribune investigation is the first comprehensive examination of every execution during his administration. The Tribune examined trial transcripts, legal briefs, appellate rulings and lawyer disciplinary records, and it interviewed dozens of witnesses, lawyers and judges.

The investigation found that:

With their client's life at stake, defense attorneys in 40 cases presented no evidence whatsoever or only one witness during the trial's sentencing phase.

In at least 29 cases, the prosecution presented damaging testimony from a psychiatrist who, based upon a hypothetical question describing the defendant's past, predicted the defendant would commit future violence. In most of these cases, the psychiatrist offered this opinion without ever examining the defendant. Although this kind of testimony is sometimes used in other states, the American Psychiatric Association has condemned it as unethical and untrustworthy.

While capital cases make the greatest demands on defense attorneys, the lawyers in these cases do not always represent the legal community's best. In 43 cases, or one-third, a defendant was r represented at trial or on initial appeal by an attorney who had been or was later disbarred, suspended or otherwise sanctioned. Though most were punished after they handled these cases, their disciplinary records raise questions about their suitability for such a complex job.

In at least 23 cases, the prosecution's evidence at trial or sentencing included a jailhouse informant—a form of testimony so unreliable that some states warn jurors to view it with skepticism. The prevalent use of jailhouse informants in capital cases was one of the central problems Gov. George Ryan cited when he declared the moratorium in Illinois.

In at least 23 cases, the prosecution presented a visual comparison of hairs, a kind of evidence so inexact that it is restricted or barred in some jurisdictions.

In many of these 131 cases, justice has been shaped by witnesses, experts and lawyers of questionable merit.

They include a forensic scientist who was temporarily released from a psychiatric ward to provide incriminating testimony in a capital case; a pathologist who has admitted faking autopsies; a psychiatrist, nicknamed "Dr. Death," who was expelled from the American Psychiatric Association; a judge on the state's highest criminal court who has been reprimanded for lying about his background; and a defense attorney infamous for sleeping during trials.

Yet all 131 of these cases cleared every hurdle designed to prevent flawed cases from proceeding to execution—from the trial court through appeals to the governor.

Since reinstating the death penalty in 1976, Texas has executed 218 men and women, far more than any other state and about a third of the country's total. Many of the condemned were clearly guilty and even admitted their crimes, apologizing in final statements shortly before they were executed.

At the same time, seven condemned inmates have been exonerated in Texas, and questions of innocence linger in some cases where inmates have been executed or still sit on Death Row.

As governor, Bush has the final say on whether a death sentence is carried out, even though most cases were tried long before he took office in 1995. By his own account, Bush is loath to second-guess jury verdicts, and he almost always defers to reviewing courts to settle whether the trial was fair.

In individual cases, he can grant clemency—life in prison—upon the recommendation of the Texas Board of Pardons and Paroles or grant a one-time, 30-day reprieve. Bush has exercised each power once. He also can order an investigation.

Bush declined to be interviewed for this article. His criminal justice policy director, Johnny Sutton, said the governor views his role as that of a "safety valve."

Sutton said Bush carefully reviews each case, weighing two questions he considers critical: Is there any doubt about guilt? And, have courts reviewed all the legal issues in the case?

"We have a system in place that is very careful and that gives years and years of super due process to make sure that no innocent defendants are executed and that the defendant received a fair trial," Sutton said. "We think we have a good criminal justice system in Texas. It's not perfect, but it's one of the best around."

In 1995, Bush signed a bill designed to speed the pace of executions. He later opposed a legislative proposal to ban the execution of mentally retarded defendants, saying he believes that decision should be left to juries. The measure ultimately died. Bush also vetoed a measure that legislators called a modest effort to improve legal representation for the indigent.

After a Tribune investigation that exposed flaws in the state's capital system, Illinois Gov. Ryan in January imposed the nation's first moratorium. The governors of Indiana and Maryland have since ordered studies of their death penalty systems. Measures have also been proposed in Congress to reform or suspend the federal death penalty.

Clemency denied
With capital punishment emerging as a major national issue, it likely will become part of the presidential campaign. The presumptive Democratic nominee, Vice President Al Gore, also supports the death penalty, but he has never held an office where he would authorize an execution or grant clemency.

The case of David Wayne Stoker, executed June 16, 1997, illustrates many of the problems in Texas' death penalty system.

The star witness was paid by a crime-stopper program and had drug charges against him dropped. The district attorney's investigator and the police gave false testimony. Stoker's lead attorney surrendered his law license less than two years after Stoker's trial and pleaded guilty to criminal charges. Stoker's other court-appointed attorney had been a lawyer less than a year.

Stoker's case was so troubling for Thomas Moss, a Bush appointee to the Board of Pardons and Paroles, that he voted to grant Stoker clemency—one of only two times he has favored commuting a death sentence. In a letter to one of Stoker's sisters, Moss said he believed there was "the possibility that [Stoker] was innocent."

The board usually denies clemency requests without dissent.

Stoker, a carpenter and handyman, was convicted and condemned for the 1986 murder of a convenience store clerk in Hale Center, a small, dusty town just north of Lubbock. The gunman shot the clerk three times and stole $96.

Five months later, Carey Todd, a man prosecutors described later as a "low-life scum drug dealer," went to police and implicated Stoker. He also gave police the murder weapon. One month later, authorities arrested Stoker, who had an assault conviction and, according to his own lawyer, was involved in drugs.

To defend Stoker's life, a district court judge appointed Ronald Felty and Gary A. Taylor.

Felty, the lead lawyer and a former prosecutor, later gave up his law license in the face of disciplinary action. Felty forged the signatures of two clients on a settlement check, then pocketed the money, records show. He also pleaded guilty to felony charges for forging a judge's signature on a court order and falsifying a government document. He was sentenced to 5 years of community service.

Taylor had been a lawyer only 11 months when Stoker stood trial in October 1987.

Stoker's lawyers alleged that although the jury did not know it, Todd had ample motive to lie.

Under questioning by the prosecutor, Todd said he received nothing for his testimony. But, according to court records, Todd was facing drug and weapons charges in nearby Potter County. On the day he testified, those charges were dropped. Moreover, he received a $1,000 crime-stoppers reward passed on to him by the Hale County district attorney's office.

Stoker's appellate attorneys found documents that, they say, indicate the charges were dropped against Todd in exchange for his testimony. Those documents include a telephone message showing that Hale County District Atty. Terry McEachern called a Potter County prosecutor regarding Todd's case. The other prosecutor noted in his court file, "Dismissed: this defendant helped Terry McEachern D.A. solve a murder case."

Hale Center's police chief, Richard Cordell, testified there was no local crime-stoppers' group but was forced to acknowledge on the witness stand that he was, in fact, one of the group's founders.

Riley Rogers, an investigator for the district attorney's office, took the stand and denied any knowledge of the $1,000 payment. The appeals team later uncovered bank records that linked the $1,000 payment to him.

In a recent interview, McEachern denied that Todd's drug charges were dropped in exchange for his testimony, but he acknowledged Todd received reward money with the help of his office.

"Yes, the record indicates that that happened," McEachern said. "Is that of substantial importance? I don't know whether I wore white socks or blue socks on that day, and I really don't think it matters."

Todd testified that Stoker had given him the murder weapon following the shooting. Stoker never disputed he had the gun at one point; he said he got it from Todd, who asked him to repair it. Stoker said he then returned the gun.

Two other prosecution witnesses, Ronnie Thompson and his wife, Debra, testified that Stoker bragged about the murder.

Ronnie Thompson, who works cotton and corn fields in Hale County, has maintained for years his statement to police and his testimony were false—the result of pressure from his wife, who had become romantically involved with Todd and was angry at Stoker.

"I told McEachern I didn't mean to sign it," Thompson said of the police statement. "He said, 'It's too late. You signed it."'

McEachern denies pressuring Thompson to testify untruthfully.

Debra Thompson stuck by her testimony in a brief interview, while Todd, who works as a laborer for an irrigation company, declined to comment.

Prosecutors claimed a shell casing found in Stoker's car also linked him to the murder, but Stoker didn't own the car when the crime occurred. He bought it months later, according to records unearthed by his appellate attorney.

During sentencing, McEachern called Dr. James P. Grigson, the psychiatrist nicknamed "Dr. Death." Although Grigson never examined Stoker, he testified Stoker was a sociopath who would "absolutely" be violent again.

Grigson was one of the state's most feared witnesses, but Felty assigned the inexperienced Taylor to cross-examine him. With Stoker's life in the balance, Felty put on only one witness at sentencing: Stoker's mother. She testified briefly about the most superficial aspects of the Stoker family.

Felty, who works as a supervisor at Home Depot, defended his work. "When we went to trial, we were a hell of a lot better prepared than the D.A.'s office," Felty said.

McEachern said he had no doubt he prosecuted the right man. "Twelve jurors believed [the witnesses] were credible and reliable," he said.

Sutton, Bush's criminal justice aide, said the courts had an opportunity to review all these issues on appeal and found they did not merit a new trial. He described the evidence against Stoker as "very strong" but not overwhelming.

In recent interviews jurors said that had they known of the problems with the Stoker case, they might have reached a different verdict.

"I don't know that we would have believed everything," said juror Myron Grisham. "Knowing [Todd] was paid or he got a deal, I would have had a harder time believing his testimony."

Said Wanda Carter: "If we had known some of these things, I'm sure it would have weighed on us."

Police Chief Cordell acknowledged there was no "direct tie" between Stoker and the crime.

"I was really surprised we did what we did with the amount of evidence we had," he said.

Attorneys under a cloud
The roster of attorneys who have defended the 131 men and women executed under Bush includes convicted felons, disbarred and suspended lawyers, and attorneys who were inexperienced or whose work was inept, according to the Tribune's investigation.

At least 43 of those 131 defendants were represented at trial or on their initial appeal by a lawyer who had been or was later publicly sanctioned for misconduct by the State Bar of Texas. Trial and the initial—or direct—appeal are the two stages of a criminal proceeding where district court judges are called upon to appoint counsel for indigent defendants.

In 34 of those 43 cases, the sanctioned attorney was disbarred, suspended or given what is called a "probated suspension." A probated suspension allows the lawyer to continue practicing if certain requirements are met—for example, seeking drug treatment or paying restitution to victimized clients. In the other nine cases the attorney was reprimanded.

The misconduct included lying to clients and judges, accepting money to pursue a case and then ignoring it, repeatedly missing filing deadlines, and attempting to fix a criminal proceeding.

Although most of these attorneys were disciplined after handling the death penalty case in question, at least seven had been sanctioned before trying the case or handling the appeal.

Though having a disciplinary record does not automatically mean an attorney handled every case poorly, it raises questions about an attorney's skills or integrity.

Without a vigorous defense, certainty when applying the death penalty is all but impossible. That's why Illinois' nascent reform efforts have focused on minimum standards for defense attorneys—standards similar to those already adopted by at least a dozen other states for death penalty representation.

Most of the sanctioned attorneys in Texas were appointed by local judges to represent defendants too poor to hire their own lawyer. Last year, Bush vetoed a bill that would have allowed counties to take that power away from elected judges, who have been criticized by legislators for appointing friends, campaign contributors and attorneys who rush cases to verdict.

The bill's intent, according to its sponsor, was to create a system where appointments would be made by a panel motivated more by the quality of defense than the speed of trials or cronyism.

Under the bill, which passed the Texas legislature unanimously, counties would have been allowed to transfer appointment power to an authority created by county commissioners. The bill also would have allowed rural counties to band together and establish regional public defenders' offices with attorneys who specialize in criminal defense. Few counties in Texas currently have a public defender's office.

Under lobbying from the judges whose power was being threatened, Bush vetoed the bill, saying judges "are better able to assess the quality of legal representation." Sutton, Bush's aide, contended the bill would not have applied to capital cases.

Texas Senate President Rodney Ellis, a Houston Democrat who sponsored the bill, said it was, indeed, intended to apply to the death penalty as well as other criminal cases.

Ellis, a supporter of the death penalty, has authorized three executions when Bush was out of state. He said the number of disciplined attorneys who handled death penalty cases reinforces the need for reform.

"That says the lawyers have not been the crown jewels of the legal profession," he said. "That kind of statistic should embarrass every right-thinking Texan."

But Sutton said a disciplinary record doesn't automatically mean a defense attorney is incapable.

Lawyers such as Jose Luis Pena epitomize the role that poor representation has played in the state's death penalty cases.

Although an attorney for only 17 months, Pena was appointed by Judge Darrell Hester in 1985 to defend Davis Losada, accused of raping and murdering a 15-year-old San Benito girl.

Pena later admitted that his work suffered from a conflict of interest because he had briefly represented the key witness against Losada. That witness' testimony was crucial to the prosecution's case, but Pena asked him only three questions on cross-examination—and even then, it was the same question asked three times. Pena said in an affidavit that he limited his questioning to avoid delving into areas he and the witness had discussed while attorney and client.

Losada was found guilty, and when it came time to plead for his client's life, Pena delivered a disjointed and brief argument.

"Ladies and gentlemen," Pena began, "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 the key issues, but that's what you have to decide today."

Those initial remarks typified his argument, which rambled and failed to mount a persuasive case for his client.

Pena added later: "The system. Justice. I don't know. But that's what y'all are going to do."

Losada was sentenced to death in 1985 and executed in 1997.

Three years before Losada's execution, Pena was disbarred for pocketing money that belonged to clients, disciplinary records show.

"I think the judge knew I would take the case and maybe dispose of it quickly," Pena said recently. "I think he thought perhaps I would roll over and play dead."

Hester said he appointed Pena because he had handled other cases in his courtroom and performed competently. He said there were few qualified attorneys.

"You desperately look for sufficiently able people for these cases," he said. "I think he did a quite credible job."

Pena is one of eight defense attorneys involved in the 131 cases who were later disbarred.

Three court-appointed attorneys were later convicted of felonies. Stoker's attorney, Felty, is one. Another was imprisoned for sexually assaulting two teenage girls. The third, who became a prosecutor, was convicted in connection with an extortion plot.

Some attorneys in the 131 cases have lengthy disciplinary records. One was sanctioned eight times, two others seven times and one six times, records show.

Ronald Mock, who has been disciplined five times, represented three defendants at trial who have been executed under Bush.

Mock and another attorney, Walter Prentice, have each served jail time after being held in contempt for mishandling criminal cases. Like Mock, Prentice has represented three defendants executed under Bush. In each case, Prentice was appointed to handle the defendant's direct appeal.

One of the most notorious criminal attorneys in Texas never was sanctioned.

Joe F. Cannon, a Houston attorney who died two years ago, was infamous for sleeping during trials and speeding through cases to please judges with heavy backlogs, according to affidavits filed by other attorneys. Cannon was the court-appointed attorney for three men executed under Bush.

In Willie Williams' case, Cannon's appointed co-counsel at trial was Mock. Among other lapses noted by federal courts, Cannon and Mock never checked the full written statement of an eyewitness whose testimony could have been helpful to the defense.

After Williams was sentenced to death, Cannon and a second attorney—who would later be diagnosed as mentally ill and suspended in Virginia—were appointed to handle William's direct appeal. They filed a three-page brief in which they said they had reviewed the trial and concluded there were no issues worth arguing, essentially raising a white flag.

Mock has been harshly criticized by other attorneys on appeal. A special investigator appointed by a judge concluded that Mock's work was so poor in one death penalty case that it contributed to "a breakdown in the adversarial system of justice."

"I know I have represented these folks to the best of my ability," Mock said recently. "I'm a good lawyer. It ain't bragging if you can do it."

He tried 19 capital cases, Mock said, and in 16 the defendant was sentenced to death. He said the state's resources overwhelmed his own. "You really had no chance," he said.

One Mock client, Gary Graham, is scheduled to be executed later this month in a case where Mock has been criticized for doing little work.

In 22 of the cases where a defendant has been executed under Bush, the defense presented no witnesses during sentencing, court records show. In 18 others, the defense presented only one witness. One defense attorney who put on no case whatsoever later testified that he didn't know he was allowed to present witnesses.

Many defense attorneys did not present evidence of a defendant's brain damage, low IQ or childhood abuse—the kinds of factors that Illinois and many other states consider mitigating factors to be used in pleas for mercy.

Texas long employed a sentencing scheme that in effect turned such factors against defendants. Evidence of brain damage, a history of abuse or a defendant's youth could be used by prosecutors to argue that a defendant would be more likely to commit future violence—one of the key factors jurors considered in deciding on the death penalty.

But responding to a U.S. Supreme Court decision, Texas changed its sentencing rules in 1991, asking jurors to take into account any evidence that might reduce "the defendant's moral blameworthiness."

Records show that of the 131 inmates executed under Bush, 115 were sentenced before the new law took effect, meaning they were condemned at trials where jurors were restricted in considering a defendant's background as cause for mercy.

Terry Washington was executed in 1997. His attorneys never presented evidence to the jury showing Washington had been born with fetal alcohol syndrome and was brain-damaged and mentally retarded. He couldn't count or tell time, and was described as having the mental capacity of a 7-year-old.

'Dr. Death' testifies
In the annals of the death penalty in Texas, few figures have proved as controversial as James Grigson, a Dallas psychiatrist who came to be known among defense attorneys and the media as "Dr. Death."

Grigson was reprimanded twice in the early 1980s by the American Psychiatric Association, then expelled from the group in 1995 because it found his testimony unethical and untrustworthy. In his heyday from the mid-1970s through the late 1980s, Grigson helped send scores of people to Texas' Death Row.

Grigson repeatedly claimed that he could predict that defendants would be violent again—even though in many of those cases Grigson never even examined the defendants. Instead, he responded to hypotheticals posed by prosecutors in which they described a defendant's criminal history.

This type of psychiatric testimony played a critical role in the cases of at least 29 defendants executed in Texas since Bush became governor. Grigson testified in 16 of those cases.

Grigson said recently that over his career he has testified in 166 capital cases in Texas, all but nine for the prosecution.

With his folksy charm, Grigson made things easy for juries. He measured defendants on a 1-to-10 scale, with 10 representing the worst kind of sociopath. He placed many there—and some past that point, up to 12, 13, even 14.

On questions of future dangerousness, Grigson also offered guarantees. He testified that Bernard Amos "most certainly" would be violent in the future, though he did not examine him.

James Clayton was "absolutely certain" to be a repeat offender, Grigson told a jury. Asked by a prosecutor if William Little would be violent in the future, Grigson left no room for doubt. "It's an absolute," he testified. "It's not 99.5 or 99.8. It's absolutely 100 percent sure." Grigson hadn't examined Clayton or Little, either.

Some jurors say Grigson's testimony had a significant impact. "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 Myron Grisham, one of the jurors in Stoker's case.

Another psychiatrist, E. Clay Griffith, often testified along the same lines as Grigson—making predictions without examinations. Danny Lee Barber was a "10 plus" on a scale of 1 to 10. Griffith testified that James Fearance would be at the "highest number, however you're going to judge it." David Wayne Spence, Griffith testified, was as "severe, in my opinion, as one can get."

Such bold predictions sometimes misfired. Grigson, who had testified during the punishment phase of Randall Adams' 1977 trial, described Adams as a "severe sociopath." Adams had no prior criminal record and eventually was freed from Death Row, thanks in large part to the documentary, "The Thin Blue Line."

Grigson has made a career of testifying in criminal cases. He charges $150 an hour, and in the 1980s he was in such demand from prosecutors that he usually earned more than $150,000 a year, according to court records.

The controversy surrounding Grigson made him less attractive to prosecutors. He now only testifies in one or two capital cases a year, although he remains busy with other court cases.

In an interview, he defended his work. "I feel like I really have helped the image of psychiatry rather than hurt it," Grigson, 68, said. "I've really brought psychiatry out of the clouds."

Although the U.S. Supreme Court has ruled this kind of psychiatric testimony admissible, it has been repeatedly criticized by other courts.

Just last month, Judge Emilio Garza of the U.S. Court of Appeals for the 5th Circuit sharply criticized the use of hypothetical psychiatry in a Texas case.

"[W]hat separates the executioner from the murderer is the legal process by which the state ascertains and condemns those guilty of heinous crimes," Garza wrote. "If that process is flawed because it allows evidence without any scientific validity to push the jury toward condemning the a ccused, the legitimacy of our legal process is threatened."

Unreliable evidence
Nationally, testimony from jailhouse informants—inmates who provide incriminating testimony about other inmates, often in exchange for special treatment—has contributed frequently to the conviction of defendants who were later cleared.

Such testimony played a role during the guilt or sentencing phase of at least 23 cases in which a defendant was executed under Bush.

Seven jailhouse informants testified against David Wayne Spence at his 1984 trial for his alleged role in a triple slaying in Lake Waco. The credibility of all seven informants, or snitches, was suspect.

One testified Spence admitted the murders during a jailhouse conversation, though Spence was not locked up at the time he allegedly confessed.

Several later contended that investigators fed them details of the crime, showed them crime-scene and autopsy photos, and the statements of other witnesses.

Court records show that they also claimed to have received special privileges, from unlimited cigarettes to unsupervised visits with wives or girlfriends. Moreover, some got what jailhouse informants usually want most—recommendations for leniency.

Several later recanted, adding further questions to a case that already had troubling flaws.

Other suspects had implicated themselves by bragging to other people about the murders, although defense attorneys were not given that evidence. Physical evidence found at the crime scene failed to implicate Spence. Even top police officials on the case said they doubted Spence was guilty.

Still, he was executed in April 1997.

Despite its unreliable history, another form of evidence, visual hair comparisons, was used by prosecutors in at least 23 cases where a defendant has been executed under Bush, court records show.

A recent study examined 62 convictions nationally where a convicted defendant was cleared by DNA and found that in 18 prosecutors had used hair analysis to help win the original conviction.

In Texas, one of the most frequently used experts in hair cases has been Charles Linch. In cases where a defendant has been executed under Bush, prosecutors used Linch's hair comparison results twice. In a third instance, Linch testified about other forensic evidence.

The Dallas Morning News reported last month that Linch had been committed in 1994 to a psychiatric ward due to concerns about his depression and drinking. Linch was considered a danger to himself or others, but he was temporarily released to provide incriminating hair-analysis testimony against Kenneth McDuff, who was executed in 1998.

The prosecution did not disclose Linch's status to the defense, even though Linch's residence in a psychiatric ward might have been used to challenge his credibility.

Linch, who now works in a crime lab in Virginia, said in an interview that his stay in a psychiatric ward does not undermine his trustworthiness as a forensic examiner. He said he was clinically depressed. "So I took a break," he said. "I think it's a lot more egregious when people don't know when to take a break."

Autopsy evidence also has proved problematic in Texas, thanks to a pathologist who worked throughout West Texas.

Dr. Ralph Erdmann, who frequently testified in capital cases, pleaded no contest in 1994 to seven felonies tied to falsified evidence and botched autopsies, and surrendered his medical license. He once claimed to have examined organs that had been removed in surgery years before the victim's death. He also claimed to have examined a woman's brain—but there was no incision in her head.

A special investigator appointed to examine the allegations against Erdmann concluded that "if the prosecution theory was that death was caused by a Martian death ray, then that was what Dr. Erdmann reported."

Erdmann testified in six cases where defendants have been executed under Bush.

Two executions halted
Since the death penalty was reinstated in 1976, Texas governors—both Republican and Democratic—have been reluctant to halt or suspend executions.

Bush has been no different. He has provided relief twice to Death Row inmates.

Earlier this month, Bush granted a reprieve to condemned prisoner Ricky McGinn, sentenced to death for the murder and rape of his 12-year-old stepdaughter, so DNA testing can be conducted. And two years ago, Bush commuted the death sentence of Henry Lee Lucas to life in prison, saying he had doubts that Lucas had committed the murder for which he faced execution.

Under state law, Bush also can order the Board of Pardons and Paroles to conduct additional investigation of a case. The board has 18 members, all appointed by Bush.

The board's procedures have come under harsh criticism, with one federal judge calling them "appalling." The board's members do not hold public meetings while reviewing cases, vote by fax and don't provide reasons for their decisions.

Two years ago, Bush discouraged a legislative effort that would have required the board to hold public meetings while considering clemency requests. That proposal never passed the legislature.

In his autobiography, Bush says he will second-guess a jury's verdict if new evidence emerges that the jury never heard.

But new evidence isn't always enough.

In the case of James Beathard, who was executed last year for his role in a 1984 triple murder, the prosecution's key witness recanted his testimony after trial, casting additional doubt on the case against him. Three members of the parole board had recommended clemency for Beathard.

In Jerry Hogue's case, a law-enforcement officer urged Bush's office to order DNA testing before Hogue's 1998 execution, saying he believed it might help resolve lingering questions about Hogue's conviction for a 1979 murder. In Stoker's case, his attorney presented Bush a lengthy and detailed petition for clemency, carefully outlining newly discovered evidence that, the lawyer said, showed Stoker might well be innocent.

In the cases of Beathard, Hogue and Stoker, Bush denied their requests for a reprieve. He did not order additional investigation or request new tests, as he did in halting McGinn's execution. Sutton said that in those three cases the governor had no doubt the defendant was guilty.

All three declared their innocence to the end. In a written statement that Stoker released through a prison chaplain after his execution, he thanked his friends, family and pen-pals for their support.

He also thanked his lawyers for all of their work, saying they had done a good job.

Then Stoker addressed the victim's family.

"I am truly sorry for your loss ... but I didn't kill anyone."

(Read Part 2)

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    New DNA Tests Are Seen as Key to Virginia Case New DNA Tests Are Seen as Key to Virginia Case NEW YORK TIMES

    September 7, 2000

    New DNA Tests Are Seen as Key to Virginia Case

    By FRANCIS X. CLINES

    RICHMOND, Va., Sept. 6 - Lawyers for Earl Washington Jr., a model prisoner with the mental development of a 10-year-old, filed a petition today for a full pardon after 17 years in prison, 6 years after a DNA test raised strong doubts about his conviction in a rape and homicide.

    Even as the petition was filed, the lawyers were awaiting results of a more definitive DNA test that they said in the petition they were certain would clear Mr. Washington of the crimes.

    The new DNA test was ordered by the governor in the spring. Though Mr. Washington's lawyers maintain that the test usually takes a month or less to complete, a spokesman for the governor said the test was not concluded.

    His lawyers, who specialize in the increasingly successful DNA challenges of criminal convictions, describe Mr. Washington as an amiable, passive farmhand with an I.Q. of 69 who has a weakness for agreeing with authority figures. They maintain his case is a summary of the main problems prompting the rising national concern about fairness in capital convictions: race, mental incapacity, prosecutions based solely on confessions, appeal limitations and the inevitable pressures of politics.

    Mr. Washington was only days from execution in 1994 when his death sentence was commuted to life by former Gov. L. Douglas Wilder, a Democrat, after the initial DNA test. That test raised the possibility that someone else might have been involved in the crime, but state officials insisted it was not conclusive. Mr. Washington accepted the offer of life without parole, but a battery of lawyers has continued to fight to overturn his conviction.

    "Earl's case has it all, beginning with bad lawyering and a false confession," said Barry C. Scheck, a professor at the Benjamin N. Cardozo School of Law at Yeshiva University, who is co-director of the Innocence Project, a pro bono DNA defense program.

    Defense lawyers expressed concern that Gov. James S. Gilmore III, a Republican close to Gov. George W. Bush of Texas, the Republican presidential candidate, might choose to "split the baby" politically and keep Mr. Washington in prison as part of a 30-year sentence in an assault case not connected to the murder. Typically, the assault conviction by itself would have merited parole by now, they noted.

    "That's a ridiculous and unsubstantiated thing to say," Governor Gilmore's spokesman, Mark A. Miner, said in rejecting any suggestion that politics was a factor in the case. He noted that Mr. Gilmore had ordered the new DNA test in the first place. "The governor takes each petition very seriously and personally reviews the details," Mr. Miner said.

    Mr. Washington was convicted of raping and murdering Rebecca L. Williams, a 19-year-old mother of two, in Culpeper, Va., in 1982. During years of legal criticism, police and prosecutors have defended their methods, noting that a federal appeals court upheld the conviction in 1991. The court did so while finding that Mr. Washington was "easily led" by the police and that the prosecution evidence - the confession - presented "difficulties for any fair- minded jury."

    The Culpeper police chief, C. B. Jones, who headed the Williams investigation, emphasized that it was a jury, not the police, who found Mr. Washington guilty. "Even if he didn't do the rape, there's still a possibility he did the other," Mr. Jones said when asked about the latest DNA appeal.

    The police began questioning Mr. Washington about the unsolved murder and three other sexual assaults when he was arrested in 1983 after a drunken family dispute in which he assaulted a neighbor. Agreeing to waive his right to a lawyer, Mr. Washington initially confessed to all four unsolved crimes, but three of the inquiries were later dropped when evidence and witnesses contradicted his confessions. "I guess I told them what they wanted to hear," Mr. Washington said in an interview this summer at Keen Mountain Correctional Center in southern Virginia. "I didn't commit the murder," he added. When asked why he confessed, Mr. Washington was almost inaudible as he answered with a smile and a shrug, "I don't know."

    His conviction was based on a confession constructed of one-word "yes" answers to a series of leading questions. The transcript showed detectives repeatedly correcting, if not coaching, Mr. Washington when he offered erroneous details, such as misidentifying the crime scene, confessing at first to stabbing the victim twicewhen her body bore 38 wounds, and identifying the victim as black.

    Mr. Washington, a 40-year-old black man, quickly corrected himself when contradicted. "Well that's wrong, Earl, she was white," a detective informed him about the victim after one crucial answer, according to the interrogation transcript that appeal lawyers underlined after his conviction.

    "Oh, she was white," Mr. Washington amended.

    "You can get Earl Washington to agree he shot President Kennedy or did just about anything else," said Eric M. Freedman, a professor at Hofstra University. He has helped Mr. Washington across 15 years of court and executive appeals, arguing that his retardation was exploited repeatedly in the criminal justice system.

    Mr. Washington's original defense did not challenge the confession or bring to light serology evidence that no trace of the defendant was found on a blanket used in the rape and homicide. The lawyers who later took up his cause emphasized that their task was greatly burdened by the fact that Virginia has one of the most restrictive appeal procedures in the nation, allowing only 21 days after sentencing to present new evidence. In contrast, the most liberal states set no time limit.

    "This necessarily politicizes the appeal process by leaving it solely in the governor's hands," said Peter Neufeld, co-director of the Innocence Project. Mr. Neufeld conceded that part of the reason for making the pardon petition public was to openly press the governor to reject keeping Mr. Washington in prison solely for an assault conviction.

    The new DNA test is more sophisticated than the original in being able to check at least 13 genetic markers for a possible match rather than the single marker studied six years ago.

    In the last nine years, there have been 67 DNA exonerations of inmates across the country. Of these, one in 5 involved convictions based solely on confessions, said the Innocence Project, which was involved in 41 of the 67 exonerations.

    Before DNA was used as an appeals tool, Virginia was the first state in the nation to use genetic technology in creating a DNA identity bank to which state felons are required to provide blood samples. The decade-old program contains more than 120,000 samples and has been used to find suspects who matched DNA evidence in about 30 killings and more than 150 other crimes.

    In their optimism, Mr. Washington's lawyers have speculated that the DNA bank might be powerful enough now to identify another party as Mrs. Williams's murderer, providing Mr. Gilmore with a dramatic outcome for the Washington case.

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    Clinton Is Urged to Declare Moratorium on Federal Executions Whether to Kill Those Who Killed as Youths NEW YORK TIMES

    November 20, 2000

    Clinton Is Urged to Declare Moratorium on Federal Executions

    By RAYMOND BONNER

    WASHINGTON, Nov. 20 — An array of religious, civil rights and political leaders are appealing to President Clinton to declare a moratorium on federal executions in the closing days of his presidency.

    A letter delivered to the White House today and signed by 40 people, including the former White House counsel Lloyd N. Cutler and several other onetime members of the Clinton administration, urged the president to "prevent an unconscionable act — executing individuals while the government is still determining whether gross unfairness has led to their death sentences."

    Asked about the initiative, White House officials said Mr. Clinton had indicated no inclination to declare a moratorium.

    Organizers sought signers who they thought would have influence with the president. The signers included the Nobel laureate and Holocaust historian Elie Wiesel, the financier and philanthropist George Soros, members of the committee established by Mr. Clinton to study race relations in America and three Roman Catholic bishops.

    In a separate letter calling for a moratorium, former President Jimmy Carter and his wife, Rosalyn, told Mr. Clinton that a federal execution "would diminish the United States' moral authority abroad." The letter, sent by the Carters last month, is to be released at a news conference that the organizers have scheduled for Tuesday.

    The activity precedes by three weeks the scheduled execution on Dec. 12 of Juan Raul Garza, sentenced to death for three drug-related murders. Mr. Garza is one of 21 federal prisoners on death row. His would be the first federal execution since 1963.

    Mr. Garza was earlier scheduled to be executed on Aug. 5. But Mr. Clinton granted a reprieve because of concerns about racial and geographic disparities in the application of the federal death penalty, along with what was then an absence of federal clemency procedures.

    Then, in September, a Justice Department survey concluded that in 75 percent of the cases in which a federal prosecutor had sought the death penalty, the defendant was a member of a minority group, and in more than half the cases, an African- American.

    In addition, the survey found that a handful of United States attorneys accounted for about 40 percent of the death penalty cases. Attorney General Janet Reno said at the time that she was "sorely troubled" by the findings, and ordered further study.

    The letter sent to the president today called for a moratorium until the study was completed and there had been a period of public debate. This would surely carry any moratorium into the next administration.

    Other signers of the letter include Mary Francis Berry, chairwoman of the United States Commission on Civil Rights; Julian Bond, chairman of the N.A.A.C.P.; Kerry Kennedy Cuomo, founder of the R.F.K. Center for Human Rights; Bishop Joseph A. Fiorenza of Galveston-Houston, president of the National Conference of Catholic Bishops; John Hope Franklin, chairman of the President's Initiative on Race; the Rev. Theodore M. Hesburgh, former president of the University of Notre Dame; Fred Korematsu, Japanese- American civil rights leader; Anthony T. Kronman, dean of the Yale Law School; Mario Obledo, president of the National Coalition of Hispanic Organizations; and Robert B. Reich, former secretary of labor.

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    Clemency Without Clarity Clemency Without Clarity NEW YORK TIMES

    January 17, 2003

    Clemency Without Clarity

    By SCOTT TUROW*

    CHICAGO — Before he left office on Monday, Gov. George Ryan of Illinois, a longtime supporter of capital punishment, emptied the state's death row by pardoning four condemned men and commuting the sentences of the remaining 167 prisoners. Some are calling this an act of tremendous bravery, while prosecutors and the families of victims claim justice was thwarted. Many others believe he should have acted in the most questionable cases without providing leniency to some of the state's most brutal and unrepentant murderers.

    Personally, I think the former governor did not have an easy or clear way out, and I would defend him for that reason. Yet, as a member of the governor's commission that issued a report on death-penalty reform that led to lawyers filing the clemency claims for virtually all of these prisoners, I am concerned about what we have wrought. The stability and reliability of the law as an institution are brought into question when the work of many years by the police, prosecutors, judges and juries — as well as the implied promise to victims' families — is overturned because of the actions of a single individual, no matter how well intended or even necessary.

    This issue — the risk of undermining Americans' faith in the legal process — is perhaps the most overlooked aspect of the death-penalty debate. And, paradoxically, it may be the most compelling reason for those who now favor the death penalty to reconsider their position.

    Governor Ryan found himself in an all-too-familiar position. Despite clear problems in the capital system, the public passion to see the worst crimes subjected to the most severe punishment makes legislators fearful of intervening, forcing executive officials or the courts to step in. Prosecutors have a natural unwillingness to undo their own work. Those with clemency powers have to steer between playing God and incurring public wrath. And the courts have given us three decades of conflicting decisions and shifting legal grounds on the issue.

    Since 1972, the United States Supreme Court has declared capital punishment unconstitutional, then restored it but subjected it to an endless variety of shifting procedural standards. Last year, the court declared that executing the mentally retarded constituted cruel and unusual punishment. It also deemed unconstitutional capital systems that allowed judges to impose death sentences after guilty verdicts by juries.

    These two rulings brought countless death sentences across the country, including in Illinois, into doubt. And things here were already confused enough: historically in Illinois nearly a third of the people first sentenced to death have had the sentences reversed and reduced. More pointedly, including the four men pardoned by the governor this week, the state has sent 17 men to death row who were later exonerated.

    In short, Governor Ryan was hardly upending a stable system producing predictable results.

    Rather, the 14-member commission on which I served found persistent problems: false confessions that had been coerced or dubiously reported by the police; mistaken eyewitness identifications; murderers who portrayed innocent people as accomplices; jailhouse informants who became witnesses in exchange for the kinds of favors that clearly tempted lies; and a statutory structure that provided an obvious pathway to arbitrariness in deciding who was to die.

    We made 85 substantive proposals for reform, including requiring the police to videotape the full interrogation of murder suspects, reducing the number of circumstances making defendants eligible for the death penalty and establishing a statewide commission to review any case in which a local prosecutor wanted to seek a death sentence.

    These proposals were greeted respectfully, although hardly with universal acclaim. Still, the state prosecutors' organization, the two candidates hoping to succeed Governor Ryan, the state's major newspapers and a host of legislators joined in the call for substantial reforms.

    Yet none have been passed because of political wrangling and the chronic timidity of officials when it comes time to take positions that can later be labeled as soft on crime. When I testified last summer before the State Senate judiciary committee in favor of reducing the scope of the death penalty statute, one member confessed on the record how dangerous a yea vote might be in the hands of future political opponents.

    Moreover, the failure to reform the system also left unanswered the question of how to deal with past cases. No one — not the legislature, the prosecutors, the candidates, or even the commission on which I served — offered any alternative to Governor Ryan. He either had to accept the results of a system everyone agreed needed to be fixed or exercise the clemency powers the state constitution imposed on him.

    And, because a scrupulous review of the death row cases was likely to require the governor to act in some cases, it left him in the position of having to decide whether he was obliged to reduce all the state's death sentences. Knowing the details of so many of these cases, I could see how difficult it was to draw the line.

    Again and again, the cases that seem to present the most compelling facts favoring execution prove, under scrutiny, to contain elements raising doubts. Probably the most dangerous man in the Illinois penitentiary system is a twice-convicted murderer, believed to have killed at least five people. He has compiled a record of repeated serious assaults on inmates and guards with a startling variety of deadly weapons. But his death sentence was based on the testimony of two eyewitnesses who now claim they implicated him falsely because of pressure from prosecutors.

    Another man who murdered two police officers had been in mental institutions for more than 20 years and may well have been incompetent at the time he plead guilty. And there were also several horrible murders where one defendant was sentenced to die, while prosecutors or juries allowed a highly culpable co-defendant to live in prison. In the end, the governor says he could find no principled way to pick and choose.

    What happened in Illinois is a cautionary lesson. Inaction by legislatures forces more and more of the responsibility for creating remedies into the hands of government executives or the courts. The solutions they arrive at are often unpopular, and the principles that guide them prove subject to constant change because of the irreconcilable tension between individualized decision-making and the constitutional demand that we impose this ultimate sanction on a consistent and reasoned basis.

    At the end of the day, perhaps the best argument against capital punishment may be that it is an issue beyond the limited capacity of government to get things right.

    *Scott Turow is the author, most recently, of "Reversible Errors."

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    Missteps On Road To Injustice Missteps On Road To Injustice WASHINGTON POST

    Friday , December 1, 2000
    Page A01

    Missteps On Road To Injustice

    By BROOKE A. MASTERS
    Washington Post Staff Writer

    "Did you stab a woman in Culpeper?" the state police detective asked.

    The illiterate farm worker nodded.

    "Was this woman white or black?"

    "Black."

    A few questions later, Special Agent C. Reese Wilmore tried again. "Was she white or black?"

    This time Earl Washington Jr. said, "White." That answer launched the biggest mistake ever made by Virginia's judicial system--and landed Washington on death row.

    It wasn't until Oct. 2--17 years after that police interview--that new DNA tests cleared Washington of the 1982 rape and slaying of Rebecca Lynn Williams. Recent interviews with Washington and Williams's widower as well as dozens of police officers, judges and lawyers involved in the case turned up warnings that went unheeded along the way:

    * Police and prosecutors moved forward with a case based almost entirely on a statement full of inconsistencies from an easily persuaded, somewhat childlike special-education dropout. Washington told investigators he "stuck her . . . once or twice," but Williams bled to death from 38 stab wounds. He said she was alone. But there was a baby in a playpen and a toddler roaming through the small apartment. The defense made no mention of most of these inconsistencies during the trial.

    * A judge ruled that the statement was admissible after hearing from a state mental health expert that a man with an IQ of 69 was competent to waive his rights to a lawyer during initial questioning--even though Washington still doesn't know what the words "waive" and "provided" mean.

    * No eyewitness or physical evidence put Washington at the scene. His blood type did not match a semen stain, and police instructed the state lab not to test key hair evidence. A judge rejected defense efforts to test the hair, and the defense lawyers never told the jury about the mismatched blood types.

    * Six courts rejected the inmate's claims of innocence, including a panel of federal judges who determined that Washington's trial attorney had failed to meet minimal standards but upheld the conviction anyway. Virginia's appeals judges, who overturn fewer death sentences than in any other state, ruled that Washington's confession was properly admitted and the blood evidence was inconclusive.

    * In 1993, DNA testing contradicted the prosecution's theory and Washington's confession that he alone attacked Williams. State officials reduced Washington's sentence from death to life in prison but did not clear him.

    In October, Gov. James S. Gilmore III (R) pardoned Washington after more sophisticated genetic testing found no trace of him at the scene. But two families have been forever changed by Virginia's unwillingness to reexamine the case. Washington, now 40, spent 17 1/2 years as a convicted murderer and came within five days of the electric chair. And Rebecca Williams's killer remains unknown.

    Although state officials have reopened the investigation, Williams's widower, Clifford, feels betrayed by Culpeper authorities, who assured him that Washington was the right man and now won't talk to him, he says.

    "What do they have to hide? Why won't they talk about it?" he asked in a recent interview. "I went for nearly 18 years believing Washington did it. Now I don't know what to think."

    The mistakes in the Washington case have led to the first comprehensive examination of the state's death penalty. The Virginia Supreme Court has proposed eliminating the legal rule that prevented Washington from seeking a new trial based on the first DNA test. Both the State Crime Commission and a bipartisan legislative committee are studying that issue as well as the quality of defense lawyers in capital cases and whether to help other convicts get genetic testing.

    Still, determining what went wrong is difficult. The Washington Post tried to contact everyone involved in the Washington case. Several of them refused to comment. And nearly all the others defended their roles and insisted that the system worked. Only a single juror and a retired federal judge expressed misgivings about their actions.

    The juror, Debera Ann Holmes, who, like Washington, is black, said she wasn't convinced of his guilt when the trial ended: "With him being slow, he probably didn't understand what the police were talking about . . . and if you're a black man and they think you're guilty, they're going to make it so."

    But when most of the other jurors said they would stay all night to fight for a conviction, Holmes, now 41, capitulated. "I pray to God to forgive me for what I did," said Holmes, one of only two black jurors. "It just hurts me."

    Seven years and five courts later, J. Dickson Phillips Jr. was also unhappy with what he saw. "My intuition was that there was something very, very wrong about the case in the first place," said Phillips, who recently retired from the 4th U.S. Circuit Court of Appeals. In 1991, that court sent Washington's case back for more hearings--the only Virginia capital case to get that kind of scrutiny for 10 years. But after a lower court pronounced potentially exculpatory evidence inconclusive, Phillips said he felt legally bound to uphold the sentence.

    "I wish I could have found a way to stop it. . . . I am delighted to hear about the pardon," he said.

    However, several investigators said they still believe Washington was involved.

    "I feel as strongly about the case as I did back then," said Fauquier County sheriff's deputy Terry Schrum, who helped take Washington's first statement.

    Multiple Confessions

    On June 4, 1982, Rebecca Williams stumbled to the front stoop of her Culpeper apartment, still conscious and begging for help. Her husband, who had been out with a friend, came home as his wife was waiting for the ambulance.

    "I say 'What happened?,' and she says, 'It was a black man with a beard,' and she put her hands up like she was praying and kind of went to sleep," Clifford Williams, now 41, recalled.

    A neighbor reported seeing a lone black man jumping the fence behind the complex, and investigators took biological samples from five men. But the investigation seemed to run aground.

    Nearly a year later, an illiterate farm laborer was arrested in neighboring Fauquiera. Angry with his brother, Earl Washington had broken into his elderly neighbor's house to get a gun she kept there. When Hazel Weeks surprised him, he hit her with a chair.

    Washington says he was so drunk that he doesn't remember what happened next. But police notes and court records show he was immediately contrite about hurting Weeks. Investigators then asked about several other unsolved crimes in Fauquier, and Washington confessed each time.

    Sgt. Alan Cubbage, a Warrenton investigator, remembers the call he got from Fauquier deputies that day about one of his cases. "They said, 'You better get down here. We've already got a confession on your rape case,' " said Cubbage, 47. "It was almost like a big party. 'Come on down, this guy is confessing to everything.' "

    Schrum eventually brought up the unsolved slaying in Culpeper. Washington looked at the floor. So Schrum raised his voice--"EARL DID YOU KILL THAT GIRL IN CULPEPER?" the investigator's notes say. "Earl sat there silent for about five seconds and then shook his head yes and started crying." Schrum declined to discuss the interrogation in detail.

    Investigators drove Washington all over Culpeper, trying to get him to show them where the killing took place. They had read him his Miranda warnings, and Washington waived his rights.

    "I figured I didn't need a lawyer [because I didn't do it]," he said.

    A mental health expert who examined Washington later found the inmate to be "extremely suggestible. . . . His innate orientation is to believe what others say." Washington copes with an IQ that puts him in the bottom 2 percent of the population by following other people's cues, University of New Mexico special education professor Ruth Luckasson wrote.

    Wilmore, the Virginia State Police detective, and another investigator have died, but several others said they are still convinced of Washington's involvement because he seemed to know so many details. According to a typed confession that Washington signed but could not read, he correctly said that the radio was on and the rape took place in a bedroom. Police also testified that when they showed Washington a shirt believed to have been left behind by the killer, he said it was his. And when they pointed out Williams's apartment, Washington said he recognized it and had escaped over the fence.

    "You would have to be associated with this crime in some fashion to know that," said H. Lee Hart, now sheriff of Culpeper County.

    Washington, who recanted his confession almost immediately, has a simple answer for where he got the information: "It's the cops that tell me everything."

    If that's true, said Culpeper Police Chief C.B. Jones, then Washington has to take the blame for what happened later.

    "If he didn't do it, then he did a miscarriage of justice. Even with his IQ, he knows better than that," Jones said. "Some good people were involved in that case. They didn't con him into confessing."

    Clifford Williams now wonders whether the authorities were as sure of their case as they claim. In the weeks after his wife's death, Culpeper police found several hairs in the pocket of the shirt that was left behind, and they asked the lab to run comparisons with hair samples from five suspects.

    But when Washington was arrested a year later, Investigator K.H. Buraker told the lab not to compare Washington's hair with those in the shirt, according to lab records.

    "You should run every piece of evidence and not pick and choose who you are going to pin it on," Williams said. "If it had been tested back then, maybe then the investigation could have gone in another direction while the trail was still hot and not 18 years later."

    Buraker, now a captain with the Culpeper police, said he did not remember why he did not want the comparison done. The hairs from the shirt have disappeared.

    Hiring a Lawyer

    Although Washington was eligible for a court-appointed lawyer, his family and the local NAACP were so concerned that local attorneys would feel uncomfortable defending a black man on charges of raping and murdering a white woman that they hired a black lawyer from 35 miles away.

    Neither John W. Scott Jr. nor his young associate, Gary A. Hicks, had ever handled a capital case. They immediately asked a judge to throw out the confession.

    But prosecutor John C. Bennett argued that the police had acted properly, and the court ordered a mental health evaluation. Bennett, now in private practice, did not respond to seven phone messages and a letter sent to his office.

    The state's expert, psychologist Arthur Centor, concluded that Washington, despite his illiteracy and low IQ, "would have the capacity to understand the Miranda warnings . . . and make a knowing and intelligent waiver."

    Centor, now retired, stands by that evaluation. "He was competent to give the statement. Whether it was a valid statement is not something I'm competent to judge. . . . That's for the jury," he said.

    The two Circuit Court judges who handled the case, F. Ward Harkrader Jr. and David Berry, declined to comment.

    Scott said he did not ask for public money to hire an independent mental health expert to counter Centor because he thought the court would turn him down.

    A year after Washington's trial, the U.S. Supreme Court ruled that a defendant in a capital case was entitled to his own mental health expert. Legal analysts said that an experienced death penalty lawyer would have known the issue was on appeal and would have tried to raise it.

    "Using 20-20 hindsight, it was a mistake," Scott said. "But under the circumstances, we did the best we could."

    Defense experts can be vital to point out the holes in a case that police and prosecutors may ignore or gloss over, analysts said. "Once police get the confession, the prosecutor is happy to say, 'Oh, now I can get rid of this case,' " said University of Richmond law professor Ron Bacigal.

    The three-day trial went badly for Washington. Scott failed to get the shirt evidence suppressed, even though Washington's sister, Alfreda Pendleton, told the jury that she did all her brother's laundry and had never seen the shirt. "The commonwealth said I was just up there saying things to protect Earl. I felt that, regardless of what I said, they had already decided the case, that he was guilty," she said.

    Washington did no better on the stand. He not only denied committing the offenses but also denied ever making the confessions. In the process, he looked like a liar, several jurors said.

    Scott made no mention in his brief closing argument of the serious inconsistencies in Washington's confession, and he said nothing about the lack of blood or other physical evidence. "We argued his basic IQ and education background. . . . There were an awful lot of things" to tell the jury, Scott said.

    The jurors, though, remember the trial differently.

    "I figured the defense was saying he was guilty, too, because they didn't put on much of a case," said juror Jacob Dodson, now 51. "The only thing they challenged was his [statement], but the judge ruled that admissible."

    Scott said he believes there was immense social pressure to send Washington to the electric chair. "I did a closing argument . . . and I heard people chewing gum. I heard newspapers rattling," he said. "I have never had such a feeling that I was climbing this wall by myself."

    The jury deliberated for just 50 minutes before finding Washington guilty. It took them 90 minutes to recommend a death sentence.

    "After what we heard, I didn't think we had a choice," said juror Frank Crescenti, now 76. "Thank goodness for DNA."

    Close to Execution

    After the U.S. Supreme Court rejected Washington's appeal in 1985, he came within five days of his execution date before a team of legal volunteers got a stay.

    When Scott turned over his files to Robert Hall, the Fairfax County lawyer made a startling discovery: State laboratory tests had discovered semen that was blood type A on a bloody blanket from Rebecca Williams's home.

    Both Washington and Clifford Williams were blood type O.

    "It jumps right out at you that we're dealing with a third party who hasn't been identified yet," Hall said.

    Yet Scott had told the jury nothing of the contradiction. He acknowledged in a 1989 affidavit that he had scanned the report but did not realize its significance. Prosecutor Bennett testified during an appeal that he knew the blood types didn't match but believed the difference was "explainable" if the semen had been contaminated with Rebecca Williams's vaginal fluid, which was blood type A.

    When the case reached the 4th Circuit, Phillips and two other judges ordered new hearings on the blood evidence. But U.S. District Judge Claude M. Hilton subsequently ruled that the blanket results were inconclusive and would not have affected a jury. Hilton did not respond to requests for comment.

    That ruling, Phillips said, put the 4th Circuit in a bind when it heard the case again. Although all three judges agreed that Scott's failure to introduce the lab report was "incompetence," Phillips and J. Harvie Wilkinson concluded that Hilton's decision on the factual evidence was not "clearly erroneous." Neither Wilkinson nor the dissenting judge, John Butzner, would comment.

    "The lesson from that case is the absolute necessity that whenever people are charged with these heinous crimes, that they have really competent lawyers at the trial level," Phillips said. "Once things go off track at the trial level, it is very difficult to undo the damage."

    Phillips also faults Virginia officials for defending Washington's conviction so vigorously in spite of the serious errors. "I remember one of the state's lawyers, how outraged he was that anyone could think that anything so terrible as the conviction of an innocent man could ever happen in the state of Virginia," the judge said.

    The state's lawyers declined to comment. But Stephen Rosenthal, who oversaw the case as acting attorney general, said the office had done its job properly.

    "Before any of the DNA testing, we didn't believe there was enough evidence of innocence to offset our duty to protect a valid jury verdict," he said. But, he added, "nobody on either side of this case has been very flexible, and perhaps that's a lesson to be learned."

    Analysts said the judges are to be faulted as well. "The problem in Virginia is inadequate appellate review. If mistakes are made early on, they don't get caught," said Washington and Lee University law professor Roger D. Groot. "These cases just roll on through."

    Nationally, two-thirds of death sentences are overruled, compared with just 18 percent in Virginia, according to a study by Columbia University law school.

    Washington was moving toward execution again when Rosenthal learned in 1993 that scientific advances had made it possible to do additional DNA testing. He ordered the lab work--even before the defense put in a request.

    The results thrilled Washington's defense team: The testing found genetic material that could not have come from Washington or Clifford Williams.

    Washington's attorneys were convinced he had been exonerated, as Rebecca Williams's dying words pointed to a single attacker. But Virginia's strict 21-day deadline for reopening a case based on newly discovered evidence had long since passed. Legally, the DNA results were irrelevant.

    So the defense team took a gamble. They dropped their appeals and asked then-Gov. L. Douglas Wilder (D) for a pardon. Wilder learned that the DNA results could not completely rule Washington out.

    "I suspected the evidence showed some kind of coercion in the confession, but I didn't have the proof," Wilder said.

    In 1994, Wilder commuted Washington's sentence to life in prison and urged the legislature to change the 21-day deadline for submitting new evidence so that the inmate could go back to court.

    Six years passed. Washington's parents died, and the inmate grew increasingly depressed. "I was mad with myself for getting my hopes up," Washington said.

    Then, last winter, his attorneys learned that DNA technology had improved to the point that their client could be ruled out entirely. They turned to Gilmore, who ordered the new tests.

    This time, the results showed no trace of Washington at the crime scene. The semen on the blanket had DNA that matched the genetic fingerprint of a man already imprisoned for rape. The last remaining vaginal swab had faint traces of DNA from an unknown man who was neither Washington, Clifford Williams nor the felon--widening the mystery. State police are questioning the imprisoned felon, but he has not been charged.

    The governor pardoned Washington for the murder. But he left the inmate in prison to serve the remainder of his 30-year sentence for the Weeks attack. The parole board is considering Washington's release, and he will be eligible for mandatory parole Feb. 12.

    Gilmore's legal counsel, Walter Felton, says the case points to the need for reform. "The governor's office is not the place to retry cases," he said. "The courts are the right forum with the right rules to look at new evidence."

    Timeline of a Tainted Death Penalty Case

    June 4, 1982: Rebecca Lynn Williams, 19, a Culpeper mother of three, is stabbed 38 times in her apartment. Before passing out, she tells her husband and a neighbor that she was raped and stabbed by a black man.

    May 21, 1983: Earl Washington Jr. is arrested by Fauquier County deputies after he breaks into the home of a neighbor and hits her with a chair. During two days of questioning, he confesses not only to attacking the neighbor, but also to a series of unrelated crimes, including the Williams killing.

    Nov. 2, 1983: A judge rules that prosecutors can use Washington's confession because the defendant understood his rights.

    Jan. 18-20, 1984: Washington is tried and convicted of capital murder, and the jury recommends the death penalty.

    May 13, 1985: Following the lead of the Virginia Supreme Court, the U.S. Supreme Court upholds Washington's conviction. Virginia officials then set a Sept. 5 execution date, though Washington has no lawyer.

    Aug. 27, 1985: The New York law firm of Paul, Weiss files for a stay of execution, which is granted five days before the planned electrocution.

    Dec. 19, 1991: The 4th U.S. Circuit Court of Appeals sends the case back for new hearings after learning that Washington's blood type does not match the blood type of semen found on a blanket at the crime scene.

    Sept. 17, 1993: After a lower court decides that the blood type evidence is inconclusive, the 4th Circuit upholds the death sentence, 2 to 1.

    Oct. 25, 1993: A DNA test done by the Virginia state laboratory finds genetic material on Williams's body that could not have come from Washington. But Virginia's 21-day rule prevents Washington from going back to court.

    Jan. 14, 1994: Gov. L. Douglas Wilder commutes Washington's sentence to life in prison but does not pardon him.

    June 1, 2000: Gov. James S. Gilmore III orders a new round of DNA testing. The results find no trace of Washington at the murder scene.

    Oct. 2, 2000: Gilmore pardons Washington for the capital murder and reopens the investigation into Williams's death.

    December 2000: Washington, who is still serving a 30-year term for the attack on his neighbor, is being considered for early release, and a decision is expected shortly.

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    Ruling Could Force Florida to Commute Execution Ruling could force Florida to commute execution

    BY LESLEY CLARK
    Miami Herald
    Tue, Feb. 12, 2002

    Some of Florida's most notorious murderers could see their sentences commuted to life in prison -- and many could even apply for parole -- depending on how the U.S. Supreme Court rules in a murder case out of Arizona. In its most far-reaching capital punishment case since the 1970s, the court will decide whether it is constitutional for a judge, rather than a jury, to sentence convicted killers to death. Judges make the final decisions in Florida, Arizona and seven other states.

    Legal experts watching the case say if the court rules that it is unconstitutional for judges to have the final say, it is highly likely to order states to commute death sentences to life in prison. That would affect 372 inmates on Florida's Death Row, along with 423 others convicted killers in the eight other states: Arizona, Alabama, Colorado, Delaware, Idaho, Indiana, Montana and Nebraska.

    The justices ''are seriously considering whether the jury should do the sentencing or the judge,'' said former Florida Supreme Court Justice Gerald Kogan, who has been outspoken about problems with the death penalty. 'If they come down with, `The jury should be doing the sentencing,' then we've got a problem.''

    If the high court rules against the state of Arizona and decides that the other states' sentencing schemes are unconstitutional as well, it could commute the death sentences in all those states to life, as it did in 1972 when it declared the death penalty unconstitutional nationwide.

    RESENTENCE

    Though the court might also simply order the states involved to resentence the inmates, experts think that's unlikely, because in essence the Supreme Court would have ruled that the entire sentencing scheme for capital cases would be unconstitutional. That would mean none of those 372 Florida inmates sentenced by a judge would be executed.

    For more than half -- the ones sentenced before 1995 -- it could also mean a shot at parole. In 1995, Florida law changed and the state began meting out life sentences without parole. But inmates sentenced to life for first-degree murder before then were eligible for parole after serving 25 years. Among the inmates whose sentences could be commuted to life would be Amos King, who was convicted of raping, choking and stabbing to death Natalie Brady, a 68-year-old widow who died in her Tarpon Springs home on March 18, 1977. King came close to being executed in January, but the U.S. Supreme Court ordered a stay until it rules in the Arizona case.

    Or Gary Alvord, the dean of Florida's Death Row, who as of April 9 will have served 28 years behind bars for the murder of three generations of women in a Tampa family.

    Some inmates who began serving their time before 1995 would not be eligible for parole because, besides their death sentences, they are also serving consecutive life sentences, calling for 50 or more years in prison. And parole is far from a sure thing for anyone. The governor-appointed three-member parole board sticks to a formula for determining how long an inmate serving a life sentence should remain behind bars.

    In 2000, for example, the board added 14 centuries to Miami-Dade child rapist and murderer Robert Frederick Carr's life sentence, imposed in 1976. His tentative release date: July 30, 3414. Parole ''is no guarantee,'' parole commission chairman Jimmie Henry said of the process.

    Many prosecutors and judges don't see the Supreme Court decision ever leading to parole. They argue that the conservative Supreme Court would be loath to abandon so many death sentences. Justice Antonin Scalia, a devout Catholic, recently said he believes Catholic judges who agree with the church's belief that capital punishment is wrong should resign from the bench.''I don't see that they're going to want to throw out all those death penalty cases,'' said St. Petersburg Circuit Judge Susan Schaeffer, who teaches judges statewide how to conduct the penalty portion of capital cases.

    ARIZONA CASE

    At issue in the case of Timothy Ring v. Arizona are two conflicting Supreme Court court decisions: In 1990 the justices found in the case of Walton v. Arizona that a trial judge can impose a death sentence without violating a defendant's right to a fair trial. But in a subsequent, nondeath case, Apprendi v. New Jersey, the court ruled that a jury must determine what facts should be considered before an ''enhanced sentence'' is imposed. In Apprendi, a judge tacked on an additional two years to a defendant's sentence, using the state's hate crimes law.

    But Seminole County Circuit Judge O.H. Eaton argues that death is already the maximum punishment for first-degree murder -- not an enhanced penalty. ''The question is whether judge-imposed death sentences are valid and constitutional and my prediction is that they are,'' Eaton said. ``When the maximum penalty is death, I think the argument fails, because you're not sentencing someone to a penalty that is greater than the one authorized.''

    DEATH ROW

    Attorneys who argue on behalf of Death Row inmates see it differently. Raag Singhal, a Fort Lauderdale-based defense lawyer, notes that before a death penalty can be imposed, a hearing is held to weigh the mitigating and aggravating facts in the case. In effect, he argues, that makes the death penalty an enhanced punishment. ''If you had to sentence immediately after conviction, it would have to be life,'' Singhal said.

    The justices are scheduled to hear arguments on the case the week of April 22; written arguments are due at the court in February and Florida Attorney General Bob Butterworth may weigh in with an opinion.

    If the Supreme Court ruling does go against the Florida law, expect legislators to act quickly to devise a solution. ''If they do find a constitutional problem, then we fix it,'' said Sen. Victor Crist, a Tampa Republican and staunch defender of capital punishment.
    Return to U.S. Supreme Court: Ring v. Arizona

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    Hangman, Be Gone Hangman, Be Gone WASHINGTON POST

    September 26, 2000
    Thursday, Final Edition

    Hangman, Be Gone

    By RICHARD COHEN
    OP-ED

    The motto of the New York Times is "All the News That's Fit to Print." The other day, the paper ran a story showing that capital punishment is not a deterrent. This was certainly fit to print. It just was not news.

    It may however be news to the millions of people who have listened to politicians--especially George W. Bush--tell them over the years that nothing deters all sorts of crime, particularly murder, like the specter of the hangman. This is simply not the case, and no one who has given the matter any thought could possibly believe it.

    Let's look at the Times' figures. The paper reports that the 12 states that do not have the death penalty do not have higher homicide rates than those which do. In 10 of the 12, in fact, the rate is lower. As for the states that instituted capital punishment after the Supreme Court reinstated it in 1976, their homicide rates have gone up, up, up. In other words, the death penalty does nothing.

    Bravo to the Times for pointing this out. But as I said at the outset, this is not news. Over the years, crime figures have been analyzed and reanalyzed, and always the conclusion is the same: Capital punishment fails to deter.

    But you don't need statistics to see this. Just read any newspaper. Killers come in two varieties--those in the grip of passion or drugs (alcohol, for instance) and those who think they cannot be caught. The former can't be deterred. Neither can the latter, but if they could, life without parole would surely do the trick.

    The Times has given us a wealth of data. Massachusetts, a populous, ethnically diverse state, has a lower murder rate than next-door Connecticut. The Bay State abolished the death penalty in 1984; Connecticut still has it--although a lot of good it does.

    But the real lesson has always been right there in the crime statistics: Texas. It's far and away the nation's No. 1 executioner--231 since 1976, 144 under Bush and 32 this year alone. Still, somehow, Texas has a murder rate of 6.78 per 100,000 residents. The figure for Massachusetts is 2.0. Massachusetts is no anomaly. Get the Justice Department's
    "Sourcebook of Criminal Justice Statistics" online (www.albany.edu/sourcebook) and see for yourself.

    Despite the figures, our politicians continue to support the death penalty. They sometimes argue that society has the right both to punish and to avenge. This is a harder argument to rebut, since it is based on emotion and, often, religious conviction. Who cannot understand the urge to do to some killer what he has done to someone else?

    And yet, government also has the obligation to set an example. Never mind that DNA testing has proved that mistakes can be made, or that the death penalty is exorbitantly expensive to administer or, for that matter, that the rich never are executed. Just ask yourself what capital punishment preaches. It is that, under certain circumstances, a life can be taken, a killing revenged. But if the state has its reasons, the killer had his. We play his game, accept his logic. This is why you read about murderers who waive all appeals and proceed at quick march to their death. They understand. The government's only doing what they would do.

    It would be one thing if the death penalty really was a deterrent. Then opponents like me would be in a fix. I'd still have the same moral qualms, but I'd be hard-pressed to argue that we ought to suffer a high murder rate just to make a point about the value of human life. It would be easier, too, to put up with the occasional mistake--here and there an innocent person executed. The "greater good" would be argued. But none of that is true. Instead, to accomplish nothing we run the risk of killing the innocent.

    Bill Clinton's quest, we are told, is for a legacy. Here is one within his reach: Commute the 21 federal death sentences to life in prison. In this way, the president could show moral leadership in an area where few politicians dare to speak their mind. He could say he has looked at the statistics, read stories about what DNA testing has shown--and changed his opinion.

    "I know the future is with me," Clarence Darrow told the court when he pleaded for the lives of the killers Richard Loeb and Nathan Leopold. That was 1924. Clinton could bring the future a bit closer. Call it a bridge to the 21st century. Walk it, Bill.

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