New York Times


In a broad critique of capital punishment in Texas, a new report concludes that the state’s death penalty system is in dire need of change because of problems like prosecutorial misconduct, racial bias, phony experts and inadequate lawyers for poor defendants.

The report was written by the Texas Defender Service, a nonprofit group that represents death row inmates and has often been critical of the state’s capital system. It follows another critical study, presented last month by a committee of the State Bar of Texas, that described the state’s system of providing legal representation to the poor as “a national embarrassment.”

The issue of capital punishment has been a recurrent theme during the presidential campaign of Gov. George W. Bush of Texas. Under Mr. Bush, the state leads the nation in executions, and the governor has repeatedly defended the state’s system as fair and unbiased. This afternoon, protesters held a rally outside the governor’s mansion in Austin to call for a moratorium on executions in Texas.

Maurie Levin, a lawyer for the Texas Defender Service, said the group examined hundreds of capital trials and appeals, including every published death penalty decision rendered by the Texas Court of Criminal Appeals, the state’s highest criminal court, since 1976.

“We did this because the administration of the death penalty in Texas is in crisis,” Ms. Levin said. The report, titled “A State of Denial: Texas Justice and the Death Penalty,” is scheduled to be released on Monday.

Linda Edwards, a spokeswoman for Mr. Bush, said a copy of the study had not yet been made available to the governor’s office. “Governor Bush respects the opinion of those who oppose the death penalty, including this group,” she said. “In Texas, there are many checks and balances, including at least 9 thorough reviews of each death penalty case by the courts.”

One of the report’s central contentions, however, is that the appeals process is too cursory. It examined 103 appeals cases and found that in 79 % of them, the judge never held an actual hearing but instead relied on documents submitted to the court. In these appeals, the report also found, lawyers for death row inmates often did a shoddy job, failing to conduct a new investigation in search of new evidence or even neglecting to raise new issues for review.

The report includes many anecdotes detailing accusations of bad representation provided to poor defendants by court-appointed lawyers. In one highly publicized case, a defendant later sentenced to death was represented by a lawyer who fell asleep during the trial. Another man later sentenced to die was represented by a lawyer who ingested cocaine on the way to trial. Both cases remain under appeal in federal court.

Race was found to be a pervasive influence on how capital punishment is administered. The study concluded that prosecutors were far more likely to pursue the death penalty when the victim was white as opposed to black. Blacks and Hispanics often are likely to be excluded from capital juries. The result, the report said, is that black Texans are “least likely to serve on capital juries, but the most likely to be condemned to die.”

The report also alleges that 121 Texas inmates have been sentenced to death based on questionable psychiatric testimony used during the sentencing phase of a trial to convince jurors that a defendant was a future danger to society.

It cited cases involving Dr. James Grigson, a psychiatrist who in 1995 was expelled by the American Psychiatric Association “for arriving at psychiatric diagnoses without first having examined the individuals in question.” The report found that Dr. Grigson, who usually works for the prosecution, had testified in at least 390 capital cases in Texas, including one in August.

The report also documented the use of jailhouse informers and prosecutorial misconduct. In at least 43 cases, the report said prosecutors used jailhouse informers who had been deemed unreliable. The report also found 41 cases in which state officials “intentionally distorted the truth-seeking process,” including examples of prosecutors changing theories or presenting false evidence to win convictions.

Rob Kepple, general counsel for the Texas District and County Attorneys Association, said he could not comment on the specifics of the report because he had not seen it. But he questioned the impartiality of a study drafted by capital defense lawyers and predicted that he “could drive a truck through” the findings. “There are 2 sides to these stories,” he said.

One example cited in the report involved Willie Williams and Joseph Nichols, 2 men convicted of a murder in which a deli owner was shot to death by a single bullet. In the punishment phase of Mr. Williams’s trial, the prosecutor argued that he was the gunman. But in the punishment phase of Mr. Nichols’s subsequent trial, the same prosecutor argued that Mr. Nichols was the actual gunman, the report stated.

Both men were sentenced to death. Mr. Williams was executed in January 1995, shortly after Mr. Bush took office. Mr. Nichols remains on death row.