Chicago Tribune
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.”
