New York Times

By BOB HERBERT

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.”