New York Times


There’s a new report out today on the death penalty in Texas.

It’s a chilling report, and as I began reading an advance copy I couldn’t help but think of the governor of Texas, a candidate for president of the United States, gloating on national television about executions still to come.

“Guess what?” said George W. Bush, whose home state is already the champion of the Western world when it comes to executions. “The 3 men who murdered James Byrd, guess what’s going to happen to them? They’re going to be put to death.”

There was a disturbing, upbeat quality to the governor’s tone as he said this during last week’s debate with Vice President Al Gore. His face brightened in a way that was unsettling to much of the nation. He was so obviously and inappropriately pleased.

They’re going to be put to death.

Actually, only 2 of Mr. Byrd’s killers have been sentenced to death. But whether it’s 1, 2 or 3, and whether a person is for or against capital punishment, there is absolutely nothing to be pleased about when it comes to the death penalty in Texas.

The new study reads like a horror story in which fairness and justice are the 1st casualties in a system that often seems deliberately designed not to find the truth but to keep the state’s assembly line of death rolling at all costs - even at the cost of executing the innocent.

There are myriad examples of grotesque injustices, including the sentencing of innocent defendants to death, the deliberate falsification of evidence, the execution of profoundly retarded defendants, the routine misuse of so-called expert testimony and rampant racism.

One chapter in the study profiles the cases of 6 men who were actually executed despite “substantial and compelling doubts about their guilt.” One of those men was David Wayne Spence, whom I’ve written about a number of times. Mr. Spence was executed April 3, 1997, even though he was almost certainly innocent.

The study is the most comprehensive ever done on the death penalty in Texas. It was conducted by the Texas Defender Service, a nonprofit organization, partially financed by the American Bar Association, that provides legal representation to condemned inmates and offers training and consultation to other lawyers handling death penalty cases.

The study found that “an intolerably high number of people are being sentenced to death and propelled through the appellate courts in a process that lacks the integrity to reliably identify the guilty or meaningfully distinguish those among them who deserve a sentence of death.”

The system is plagued with problems from the beginning to its irreversible end. At the trial level there are problems with incompetent and otherwise impaired defense lawyers, including some who are unable to stay sober and some who are incapable of staying awake. The study noted 1 case in which the defendant “was represented at trial by an attorney who ingested cocaine on the way to trial and consumed alcohol during court breaks.” The defendant was nevertheless convicted and sentenced to death.

The study details frequent instances of egregious misconduct by public officials, including the use of patently false evidence, the deliberate withholding of exculpatory evidence and the use of threats against witnesses to ensure that they will testify falsely.

Those problems are compounded by the state’s awful appellate review system, a maddeningly dysfunctional apparatus that seldom catches the misconduct or corrects the errors that occur at the trial level.

“The big problem in Texas,” said Jim Marcus, one of the authors of the study, “is that there is not really a stage in the system where we can be confident that these problems will be exposed and addressed.”

The attorney general of Texas, John Cornyn, has said that Texas provides “super due process” to defendants in death penalty cases, and that the Texas way of administering capital punishment is “a model for the nation.”

If he honestly believes that, he’s deluded. If he and Governor Bush are at all interested in the truth, they could start by reading the Texas Defender Service study, which is titled, “A State of Denial: Texas Justice and the Death Penalty.”