Alan Berlow

In response to questions from Democratic Sen. Russell Feingold and Judiciary Committee chairman Arlen Specter, Gonzales repeatedly stated that each of the so-called execution memos he wrote for then Texas Gov. George W. Bush was nothing more than a “summary” of what he suggested had been an elaborate, ongoing review process for each and every execution Bush approved. “It was not unusual — in fact, it was quite common that I would have numerous discussions with the governor well in advance of a scheduled execution,” Gonzales told Feingold. “There would be a rolling series of discussions in connection with every execution.”

This explanation of how executions were reviewed is essential to Gonzales’ defense of his record because the documentary evidence is so damning. What it shows is that the only reports Bush reviewed were Gonzales’ three-to-seven-page summaries, which not only were heavily biased against clemency but repeatedly failed to make any mention of the most powerful claims on a defendant’s behalf, including plausible claims of innocence. Rather than writing a balanced summation of arguments for and against commutation, Gonzales’ work product was frequently little more than a brief for execution.

Because the written summaries were so thoroughly unprofessional, Gonzales no doubt felt he had to downplay their significance in his Senate testimony. He did this by suggesting that the summaries were invariably preceded by a real meat-and-potatoes review — in-depth, scrupulous and balanced discussions of the evidence. Yet senators never asked Gonzales to substantiate this claim, which is unfortunate because Gonzales would have been hard-pressed to do so.

In fact, in virtually all 57 cases for which Gonzales and his staff prepared written execution summaries (Bush signed off on 152 executions in all), there is no record of any additional work having been done for the governor.

Gonzales wants senators and the rest of us to believe that in the 57 cases he chaperoned to the executioner, the most important and substantive work was done in ad hoc conversations, with no scheduled meetings and with nothing beyond his brief and one-sided memoranda committed to paper.

But when did all these conversations about executions take place? Bush’s appointment logs typically show one, and only one, 30-minute meeting per execution. And that meeting almost always took place on the day of the execution itself, leaving Gonzales little time to explore any issues or questions about an impending execution Bush might have raised. It was at those meetings that Gonzales presented his appallingly incomplete summaries of the cases.

Gonzales told Feingold that if he “expressed concerns or questions” about an execution, “the governor would direct me to go back and find out and to be absolutely sure.” Yet in not one instance did Gonzales actually write a memo or report for the governor following up, elaborating on or clarifying these life-or-death questions that both he and the governor claimed to take so seriously. Indeed, Gonzales wants senators to believe that these purported discussions, of which there is no record, were so thorough that by the time execution day rolled around and he presented his truncated written summary to Bush, there was no need to include in that document the most salient facts about a case — hence the persistent omissions.

In his testimony, Gonzales could barely recall details of the notorious Carl Johnson sleeping-lawyer case or the Henry Lee Lucas serial murderer case, one of the most infamous death penalty matters to come before Bush, and one of only two Bush writes about in his autobiography. Yet Gonzales wants us to believe that he was able to keep the critical facts and details of the 57 cases he handled clear in his own mind and convey the crucial arguments in each to Bush without committing a single word — beyond the eleventh-hour summaries — to paper.

The written record on executions under Bush is both vast and meticulously cataloged by the Texas State Library and Archives Commission, and it suggests just how implausible this claim really is. Records provided by the archives make it shockingly clear that in not one case did Gonzales send Bush a clemency petition, the one document that would have laid out the most forceful argument on behalf of an individual condemned to death. We also know from the archives’ own review of the files left behind by Gonzales and his staff that for nearly every inmate executed under Bush, there was voluminous correspondence that never made it to Bush’s desk — correspondence from the Board of Pardons and Paroles, district attorneys, local law enforcement officials, inmates, attorneys for the condemned, and family and friends of victims. “The letters are generally addressed to either the Governor or his General Counsel,” a report prepared by the archives state, noting that “while many of the letters are directed to the Governor, they are stamped as received at the General Counsel’s office and there is no indication that the Governor reviewed them” (emphasis added).

The archives leave no doubt whatsoever that Gonzales could have provided Bush far more detailed information about each of these executions, but instead chose not to. In the end, Bush made his decisions on each of these life-or-death cases by relying almost entirely on the summaries Gonzales himself now dismisses, acknowledging that they were, at best, incomplete. “What the Governor did review are the execution summaries prepared by the General Counsel,” the archives state in an analysis accompanying its “Inventory of the General Counsel’s Execution Files.” The archives found no other documents that had been reviewed by Bush.

Astonishingly, the archives also make clear that far more complete execution summaries than those prepared by Gonzales were in his possession but were never presented to Bush. These confidential summaries, which have not been made public, were prepared by the Board of Pardons and Paroles or the Texas Department of Criminal Justice. “There is a difference between the execution summaries prepared by the governor’s general counsel [Gonzales] and those done by or for the BPP,” the archivist states. “The summaries by the BPP contain more information about the crime, the criminal history and the defendant’s prison record than do those prepared by the governor’s general counsel. Additionally, execution summaries prepared by TDCJ or BPP often contain attachments, including correspondence between the BPP and inmates with victims and inmates’ families, correspondence to the BPP from its legal counsel, recommendations from trial officials, medical and psychological reports, and criminal histories.”

These more complete summaries, the archives report, were sent to the governor’s office along with affidavits, court records and clemency petitions — none of which Gonzales saw fit to submit to Bush, in all likelihood because Gonzales knew his boss would not be interested in them and had no desire to commute the sentences of anyone on death row.

During the period that Gonzales was handling clemency matters for Bush, there were sometimes as many as two executions per week, as many as eight in a single month. And Bush’s top legal advisor would have us believe that the way he and Bush kept track of these executions and ensured that no innocent person died — and that all of the condemned had had a full and fair review in the courts — was through a series of informal discussions. That’s just not believable.

In 1989, Hood was convicted of murdering Ronald Williamson and Tracie Lynn Wallace. The Holland-O’Connell affair was first reported by Salon in 2005, quoting anonymous sources. Judge Holland refused to either confirm or deny the affair at the time. A year ago this month, Holland and D.A. O’Connell, both since retired, acknowledged under oath that they had had a long-term sexual relationship, which was never revealed during more than a decade of appeals by Hood’s lawyers. In her defense, Judge Holland said the affair ended more than two years before Hood’s trial. But O’Connell also testified that the two had discussed marriage, and recalled that the affair continued as late as mid-1989 — just before Hood’s trial. He said the two continued to have a “good relationship,” sans sex, during and after the trial. He said the two took a trip together in 1991.

Rather than address the affair directly, the CCA ruled 6-3 on a technical question, concluding that Hood should have raised the issue at his original trial. But Hood’s lawyers couldn’t prove the widespread rumors of the affair before Hood’s trial. The CCA had earlier criticized Hood for failing to present any “personal knowledge” of the affair, a virtually impossible hurdle given that, as far as we know, there were no witnesses to the lovemaking other than the two principals, no Paris Hilton-style video, and the judge and her boyfriend weren’t talking. The CCA also said Hood’s claims were based on “rumor,” not fact. But when Hood’s lawyers were able to present the detailed facts of the affair, based on the confessions of the principals, the CCA said it was not interested in these facts.

Needless to say, some people have found the behavior of the since-retired judge and prosecutor, and that of the CCA, since Judge Holland was once a member of the very panel weighing her actions, more than a little unsavory. A score of legal ethicists concluded that the participation of the two at Hood’s trial was unethical, unprofessional and unconstitutional, and the legal basis for a new trial self-evident. Hood’s lawyers insist the affair rendered the conviction and death sentence invalid. Now they will have to convince a federal court that Hood has a right to a new trial.

Andrea Keilen, executive director of the Texas Defender Service, which represents Hood, said, “No one would want to be prosecuted for a parking violation — let alone for capital murder — by a district attorney who is sleeping with the judge. Yet the Court of Criminal Appeals is unmoved. We are outraged by this breakdown in the integrity of the justice system.” John Rolater, an assistant district attorney for Collin County, which is pursuing the case against Hood, called the CCA ruling “a significant procedural victory.”

Given the failure of a majority of the CCA to see any conflict of interest in the Hood case, it should come as no surprise that not one of the court’s justices saw fit to recuse him- or herself from hearing arguments about Hood, despite the fact that eight of the nine justices had served with Judge Holland. Holland served on the CCA for nearly four years after leaving the district court where she presided over Hood’s death sentence. Hood’s lawyers presented evidence suggesting that some of the justices might have been aware of the affair.

In addition, the CCA’s presiding judge, Sharon Keller, who has described herself as a “prosecution-oriented person,” was tried in August before the State Commission on Judicial Conduct on five counts of judicial misconduct, including violations of due process in another death case in 2007. Advised by her staff that lawyers for death-row inmate Michael Richard — scheduled to be executed that night — needed an extra 15 minutes to file a final appeal, Keller had replied, “We close at 5.” Richard was executed that night without having his appeal heard by the CCA. The outcome of Keller’s misconduct proceeding should be announced soon.

Sadly, the conflicts of interest in the Hood case don’t end with Judge Holland, D.A. O’Connell and the CCA. Before the Hood case reached the CCA, the case was briefly assigned to District Judge Robert T. Dry who presided over Judge Holland’s divorce, and was a defendant with Holland’s former husband in a million-dollar lawsuit. Dry issued several rulings unfavorable to Hood, including one that infamously scheduled a hearing for two days after Hood was set to die. Dry recused himself the day after I inquired whether his relationship with the Hollands created a conflict of interest. 

The state’s ongoing effort to see that Hood is executed is spearheaded by Collin County District Attorney John Roach, who succeeded O’Connell. Roach and Holland both crossed party lines in 1982 to urge voters to reelect O’Connell, a Democrat. Roach and Holland had overlapping terms as Collin County judges for 15 years, and for most of that time O’Connell was the county D.A. Roach told the CCA that Hood’s lawyers had been gaming the system to delay the execution, and that they “possessed a more than adequate factual basis upon which to raise his claim” about the affair long before Holland and O’Connell came clean. Among the evidence Roach cited were a series of motions and letters Hood filed — without a lawyer — which Roach acknowledged were based on nothing more than rumors, and various news reports about the alleged affair that quoted anonymous sources.

But if Hood had a “factual basis” to raise the claim, why didn’t Roach — who had access to the same information and an obligation to find the truth and not just win a conviction — use those facts to investigate whether the conviction of Hood obtained by his predecessor as D.A. had been compromised, and whether other attorneys in his office had knowledge of the affair?

He might start by asking his Assistant D.A. John Schomburger, who was O’Connell’s co-counsel at Hood’s trial,  and who now heads Roach’s felony trial division and continues to be actively involved in efforts to execute Hood. Given his decades-long association with the judge and former D.A., it is not entirely surprising that Roach opposed efforts by Hood’s attorneys to ascertain whether rumors of their affair were true. Hood’s lawyers asked that Roach be disqualified from any further participation in the case. Naturally, that motion was denied by the CCA.

Roach had several reasons for preventing the truth about the affair from coming out. In addition to his friendship with O’Connell and Holland, Roach no doubt realizes that a ruling that the relationship deprived Hood of a fair trial could mean that scores of cases O’Connell brought before Judge Holland were also tainted and could be reversed.

In 2008, Roach was named the state’s top prosecutor by the Texas District and County Attorneys Association. Accepting the award, Roach said: “Recognition by my fellow Texas prosecutors as Lone Star Prosecutor of the Year is a great honor — and doubly so because of our shared dedication to truth, justice and the rule of law.”

Like many D.A.’s, Roach has campaigned on his office’s high conviction rates, taking special note of murder convictions. Similarly, Judge Holland undoubtedly knew that winning convictions and death sentences in Texas was a career booster for her good friend O’Connell. Even if Holland were able to treat both parties fairly in every case she heard, the courts have ruled that the appearance of such bias is enough to compromise a judge. In the Hood case, Holland was obliged to recuse herself with or without a request from the defense. But she didn’t. Certainly, no defendant in his right mind would have elected to have a case tried by this pair of sometime lovers.

Roach’s resistance to any investigation of the affair brought Hood within minutes of execution on June 17, 2008, with Roach rejecting a 30-day postponement so Hood’s lawyers could investigate the affair rumors. Hood, who had eaten his “last meal,” was spared when his execution warrant expired. The execution was rescheduled for Sept. 10. Roach next rejected an appeal from Texas Attorney General Greg Abbott, who filed a highly unusual friend of the court brief on the defendant’s behalf, asking the court to investigate the affair allegations, even if it meant delaying the execution. In a personal letter to Roach, Abbott argued that, “if the execution proceeds as scheduled, before questions about the fairness of his trial are legally resolved, neither the victims nor justice will be served.”

Hood would almost certainly be dead had it not been for two people: Matthew Goeller, a former assistant district attorney under O’Connell, signed an affidavit in June 2008, stating that it was “common knowledge in the district Attorney’s Office, and the Collin County Bar, in general,” that O’Connell and Holland had a “romantic relationship.” Taking note of this affidavit, District Court Judge Greg Brewer ruled in a highly unusual civil action that the failure of Hood’s lawyers to develop hard facts about the affair was “squarely attributable to Judge Holland and Mr. O’Connell’s deception and non-disclosure, rather than the lack of reasonable diligence on Hood’s part.”

Judge Brewer said that Holland and O’Connell failed in their “duty to disclose the fundamental conflict caused by their relationship,” and that, “State officials prevented him [Hood] from obtaining concrete evidence of the Holland-O’Connell affair.” Three of the CCA judges agreed with Brewer’s analysis, concluding that the unsuccessful efforts of Hood’s lawyers to obtain concrete evidence of the affair were due entirely to “the principal’s longstanding efforts to keep the affair hidden.” But they were outnumbered by the six members of the panel who decided to endorse the state’s questionable prosecution of Charles Dean Hood, and write another episode in the lamentable saga of Texas justice. 

Allegations that Judge Holland and District Attorney O’Connell were romantically involved when Holland presided over the murder case prosecuted by O’Connell were first reported in Salon in June 2005. But yesterday’s petition, which cites the original Salon report, marks the first time Hood’s lawyers have taken the matter to court. The “wall of silence that has long protected Judge Holland must now come down,” the lawyers argue in their filing.

Hood’s claims rely in part on Matthew Goeller, who was an assistant district attorney in O’Connell’s office at the time of Hood’s conviction. Goeller signed an affidavit earlier this month, nearly 18 years after Hood’s conviction, stating that “it was common knowledge in the District Attorney’s Office, and the Collin County Bar, in general,” that O’Connell and Holland “had a romantic relationship.” According to Goeller, “This relationship … was in existence in 1987 when I joined the District Attorney’s Office, and continued until approximately 1993.”

Neither the judge nor the prosecutor has publicly confirmed or denied the relationship. Neither returned phone calls yesterday. Asked about the case and any such relationship in 2005, Holland told Salon it would be “unethical to comment” about a pending case and refused comment on her personal ties with O’Connell.

Hood, 38, was sentenced to death in August 1990 for the 1989 murder of Ronald Williamson, 46, and Williamson’s girlfriend, Tracie Wallace, 26. Hood had worked as Williamson’s bodyguard and was living with him and Wallace at the time of the murders. The victims were found in Williamson’s house.

O’Connell and Assistant District Attorney John Schomburger prosecuted Hood. O’Connell delivered closing arguments in the penalty phase of the trial at which he asked the jury to sentence Hood to death. The jury sentenced him to death, a sentence imposed by Judge Holland the following day, as required by Texas law. Schomburger also did not respond to a request for comment.

Lawyers for Hood admit they cannot prove that Judge Holland and D.A. O’Connell were having an affair, but they believe the law and the Texas Constitution oblige the courts to investigate the matter. “It’s clear the parties did not want to make the affair public and they took steps at the time and now to keep it private,” said Gregory W. Wiercioch, one of Hood’s attorneys, insisting that Judge Holland was disqualified from hearing the case and that her judgment therefore has no authority. Wiercioch, an attorney with the private, nonprofit Texas Defender Service, a law firm that represents indigent capital defendants in Texas, says the courts should ask O’Connell and Holland to confirm or deny the relationship, arguing that asking Hood to offer concrete proof of a private affair is unreasonable.

The Texas Constitution bars a judge from sitting in a case “where either of the parties may be connected with the judge, either by affinity or consanguinity.” As district attorney, O’Connell represented the State of Texas, the party seeking to execute Hood. The constitution further states that “Public policy demands that the judge who sits in a case act with absolute impartiality. Beyond the demand that a judge be impartial, however, is the requirement that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or integrity of the court.”

Judge Verla Sue Holland was divorced from the late Earl Holland, a banker, in 1987. Friends of Earl Holland told Salon in 2005 that his wife had a relationship with O’Connell, and that it began while Judge Holland and Earl Holland were still married. One woman close to Earl Holland told Salon that Earl had a shoebox filled with tape recordings of his wife and O’Connell conversing. This source said, “I am 100 percent sure there was an affair.” One of Earl Holland’s closest friends said, there was “a mountain of circumstantial evidence of an affair,” and that Earl Holland discussed the affair with him frequently, both while he was married to Judge Holland and after.

Earlier this week, Ray Wheless, a Collin County judge who previously argued cases before Judge Holland, told Salon that he had asked Judge Holland to recuse herself in a family law case in 1987 in which O’Connell was representing one of the parties and Wheless the other. Wheless said there was “a lot of speculation about that relationship” and “a long history of them being close friends.” Wheless’ recusal motion makes no mention of a romantic relationship, but notes that O’Connell represented Holland’s sister in a divorce matter, and that “Judge Holland was previously employed by Tom O’Connell as an assistant district attorney.” Wheless argued that both the attorney-client relationship and the employer-employee relationship created potential conflicts of interest.

Hood’s original attorney, David K. Haynes, also signed an affidavit filed yesterday stating that he was “aware of rumors concerning a romantic relationship” at the time of the trial. But Haynes never mentioned the matter when his client was facing a death sentence.

Court records show that Holland presided over at least six other cases argued by O’Connell during the six-year period in which Goeller says they were romantically involved, and numerous other cases before and after. Were a court to overrule Hood’s conviction based on a finding that Judge Holland had compromised her office, judgments in all of these cases could be called into question.

Judge Holland served on the state district court from 1981 through 1996 and then on the Texas Court of Criminal Appeals (CCA) until 2001. Hood’s lawyers filed their motions in both courts. Seven of the nine judges now on the CCA served with Holland. O’Connell retired from the prosecutor’s office in 2001 and practices law in Plano.

Hood’s lawyers also filed a petition with Texas Gov. Rick Perry, seeking a 30-day reprieve so that the new evidence can be considered by the courts.

The clear implication was that Justice Scalia does not believe in an absolute ban on torture — at least when it comes to suspected terrorists. That’s a popular view these days, particularly among members of the Bush administration, although the hard questions of whether there are any limits on the use of torture have yet to be fully tested in the courts. We may get a somewhat better idea of just how far Scalia and his colleagues would go in tolerating abusive treatment of prisoners — or what some would call torture — next week when the Supreme Court considers a case challenging the use of lethal injections in execution.

The case, Baze v. Rees, is the first since 1878 in which the Court has agreed to examine the constitutionality of a specific method of execution. A de facto moratorium on execution by lethal injection has been in place nationwide pending the outcome of this case. Although the Court will not rule on the constitutionality of the death penalty itself, the federal government and states that employ lethal injection fear an adverse ruling could make it much more difficult, if not impossible, to carry out executions.

But what does lethal injection have to do with torture? Lethal injection was, after all, designed as a humane, indeed painless, alternative to electrocution and has been used by 36 states and the federal government to conduct some 929 executions since 1976. Witnesses to many of these executions have reported seeing nothing more dramatic than the condemned “going to sleep.”

Attorneys for the plaintiffs in Baze — one the murderer of two Kentucky deputy sheriffs, the other the murderer of a man and his wife — have pulled together a sizable body of evidence suggesting not only that killing someone painlessly with the three-drug “cocktail” employed by today’s executioners may be a lot harder than was previously thought, but that witnesses to executions may not realize they are watching someone being tortured to death.

Scientists agree that the three-drug concoction can kill a person painlessly if everything goes right. But the court will hear arguments that so many things can and do go wrong in the administration of these chemicals that there is an “unnecessary risk” that an execution may, in effect, involve the torture of the condemned. Plaintiffs have filed evidence from a handful of botched executions, including one in which witnesses heard the inmate moaning for 50 minutes before he expired.

Why things go wrong has to do both with the chemicals used and the personnel who administer them. Lethal injections typically employ sodium thiopental, a fast-acting barbiturate, to ensure that the condemned is fully unconscious before the second drug, pancuronium bromide, is administered. If the individual is not fully anesthetized, pancuronium bromide — which paralyzes the muscles, including the diaphragm — will make him feel as if he is suffocating to death, a feeling not unlike that of having a severe heart attack. In a case challenging Tennessee’s use of lethal injections, state medical examiner Bruce Levy testified that “suffocating to death would be a most violent form of death.” It is precisely this sensation of suffocation that has made the CIA’s use of waterboarding, or mock drowning, so controversial. Prior to the Bush administration the U.S. government had condemned the use of waterboarding as torture.

Because pancuronium bromide is used principally to immobilize the condemned — so observers don’t have to watch him gasping, choking or thrashing about in his death throes — the plaintiffs contend it is unnecessary for accomplishing the purpose of execution. They also argue that because the chemical paralyzes the voluntary muscles, an individual who feels as if he is suffocating to death would be unable to speak and witnesses would have no idea that he was suffering. This problem would continue as the condemned is hit with the third chemical, potassium chloride, which is designed to stop the heart but which also irritates the lining of the veins, creating a sensation that the person is on fire.

Dr. Dennis Geiser, a professor of veterinary medicine at the University of Tennessee, told me that the use of potassium chloride and pancuronium bromide without proper anesthesia would result in an “agonal type of death.” “It would be like tying you up to a wall and torturing you. You’re wide awake but you can’t respond.” Geiser, a death penalty supporter, and three other veterinarians have filed a friend-of-the-court brief in the Baze case in which they note that the pain caused by potassium chloride is so severe that its use on conscious animals has been condemned by the American Veterinary Medical Association.

Veterinarians normally euthanize animals using an overdose of a single barbiturate, pentobarbitol, and critics of the three-drug formulation argue that this might provide a simple alternative to the current formulation, providing the condemned a death at least as dignified as that provided the average household dog or cat.

If Justice Scalia and his colleagues have any doubt that inmates may remain conscious during execution, they can also examine a brief from the Anesthesia Awareness Campaign that presents painful-to-read testimony of patients who have undergone surgery in which neuromuscular blocking agents were administered without sufficient anesthesia. Kathleen LaBrie described waking up to “grinding and pushing in my nose” during sinus surgery. “I really thought I was slowly dying and not one person in that room cared. If anyone wants to know what HELL is like this is it.” Kelly Haapala, who was conscious during surgery for a hip-socket joint replacement, said, “I felt like they were killing me and I needed to do anything I could to move and let them know I was awake! I still have nightmares that this has happened to me.” Diana Todd, who was conscious during a hysterectomy, described it as “the most traumatizing experience of my life. It takes away your basic humanity. That kind of terror is cruel beyond description.”

The Anesthesia Awareness Campaign cites a 2007 study suggesting that there are 26,000 cases a year of conscious paralysis or intraoperative awareness during surgery. That’s about one in every 1,000 surgical procedures. Although the group does not take a position for or against lethal injection, opponents of the current protocols argue that if error rates are that high among trained anesthesiologists and medical professionals whose job is to alleviate suffering, then it’s extremely unlikely that the hodgepodge of doctors, nurses, paramedics and technicians — some with little or no training — employed to kill people will be getting it right often enough to ensure that an execution is not a form of “cruel and unusual” punishment.

The Bush Justice Department and 21 death penalty states contend that they not only can but do perform painless executions. They’ve filed briefs arguing that no method of execution is pain-free, and that the risks of pain from lethal injection are not “substantial” but are purely hypothetical. They contend that the risks are certainly no greater than they are from either electrocution, firing squad or hanging, none of which has been found unconstitutional. Furthermore, they say a method is not “cruel and unusual” under the Eighth Amendment unless it is administered with “deliberate indifference” to the pain and suffering of the condemned. In short, if the inmate suffers, it’s not because the authorities in charge of executing him meant to have him suffer.

Elisabeth Semel, director of the Death Penalty Clinic at the University of California at Berkeley, says the Supreme Court “will have to articulate a standard [for a method of execution] for the first time,” and that the “unnecessary risk” standard proposed by plaintiffs could force death penalty states to consider not only the severity of the potential pain and the likelihood of that pain occurring, but also procedures that would result in less pain and suffering.

Although the court has not previously mandated such a standard for executions, it has found punishments that involve “torture or lingering death” to be unconstitutional. In 1878 it provided a short list of “atrocities” it counted as torture, among them beheading, drawing and quartering, burning at the stake, live disembowelment, and public dissection. More recently the court concluded that exactly what constitutes “cruel and unusual punishment” relies on “the evolving standards of decency that mark the progress of a maturing society.”

At a time when waterboarding, which this country once prosecuted as a war crime, is not only condoned but enshrined as a national security imperative by the president and presidential wannabes Rudy Giuliani and Mitt Romney, some may wonder whether our standards are instead devolving. Last month nearly every Republican in the House (189 of 194 who voted) — along with 10 Democrats — opposed legislation that would have prohibited the CIA from using waterboarding, mock executions and attack dogs during interrogation, while requiring CIA adherence to the Geneva Conventions on the treatment of prisoners of war.

It is difficult to predict what level of torture, or pain short of torture, the Supreme Court may be willing to stomach. In 1992, Justice Scalia and Clarence Thomas were the only two justices who disagreed with the George H. W. Bush administration in a case argued by then Deputy Solicitor General (now Chief Justice) John G. Roberts, Jr. that prison officials violated a shackled prisoner’s Eighth Amendment protections against “cruel and unusual punishment” when they “maliciously and sadistically” beat him up. In his dissent in Hudson v. McMillian, Scalia argued that there was no Constitutional violation in beating a shackled prisoner unless there was “significant injury.” It’s useful to recall that it was precisely this view that was revived in an extreme form by the current Bush administration, ten years after Scalia’s dissent, in the infamous 2002 “torture memo” of Assistant Attorney General Jay S. Bybee, who argued that torture applied only to physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of body function or even death.” Of course the Bush administration insists that it does not and has not engaged in torture. Likewise Scalia, in his McMillian dissent, stated that “torturous punishments” would be prohibited under the Eighth Amendment.

Scalia’s originalism may allow him to denounce medieval tortures condemned by the founders, such as drawing and quartering, while tolerating more modern innovations lacking a legislative proscription. But Scalia has also acknowledged that there are limits on what authorities may do to a prisoner. Last year, during oral arguments in a Florida death penalty matter where the condemned inmate claimed that a lethal injection could cause him “gratuitous and unnecessary pain,” Scalia suggested that he might have a problem with the procedure were it to cause “excruciating pain.”

So, there you have it. Every man has his breaking point. For Scalia it would seem to be “excruciating pain.” Now, if only there were a way to force him to tell us what level of pain short of torture violates the Eighth Amendment. Perhaps Baze will get him to talk.

There’s not much Warner can do for Roger Keith Coleman. Virginia executed Coleman in 1992 for the rape and murder of his sister-in-law. But Warner says he’ll decide whether to allow new DNA testing of evidence from the case, which could establish that Virginia executed an innocent man. Such a finding would have historic repercussions for the death penalty debate nationwide. Warner must also consider the fates of no less than five inmates who, more than likely, were wrongly convicted of murder. All five have clemency petitions sitting on the governor’s desk.

In the case of the so-called Norfolk Four, four Navy sailors were sentenced to life in prison for a 1997 rape and murder. But a fifth man has since confessed to the crime and his DNA alone — not that of the other four — was found inside the victim.

The fifth petition, on Warner’s desk for more than a year, is for another Virginia inmate whose case is a veritable textbook study of how justice can go awry. The case is that of Larry Donnell Fowlkes, who is serving what is likely to be a life sentence for a 1996 murder — despite the fact that the Commonwealth of Virginia acknowledges he was nowhere near the scene of the crime.

Warner knows that a prerequisite to winning the modern presidency is to insist that he’s a badass when it comes to criminals, particularly murderers. And what better way to prove it than by signing off on an execution or two — or 152, as was the case with George W. Bush when he was governor of Texas. Shortly before commuting Lovitt’s sentence, Warner was quick to remind voters in red-state Virginia — which is second only to Texas in the number of people it has executed — that he had previously denied clemency to 11 death row inmates. It is by now second nature for any Democratic presidential hopeful with a memory of Willie Horton, the furloughed Massachusetts murderer who many believe doomed the 1988 campaign of Gov. Michael Dukakis, to avoid any decision that could be construed as “soft on crime,” or manipulated to the same end by an opponent. While still governor, the White House-bound Bill Clinton was the first Democrat to demonstrate that he’d imbibed that lesson when he returned to his home state from the campaign trail in 1992 for the controversial execution of a severely brain-damaged Arkansas death row inmate.

At the same time, Warner seems to appreciate that Americans are increasingly concerned that prosecutors, juries and courts don’t always get it right. To date, 122 innocent people have been discovered on the nation’s death rows, while scores of people — 163 at last count, including eight in Virginia — have used DNA to establish that they were innocent of crimes for which they’d been incarcerated.

Warner seemed to acknowledge some of these concerns in the Lovitt case. He said executing Lovitt would be problematic because a Virginia court clerk had allowed the destruction of DNA evidence that might have established the condemned man’s innocence. The state, Warner said, “must ensure that every time this ultimate sanction is carried out, it is done fairly.” Warner also said he was commuting Lovitt’s sentence “to reaffirm public confidence in our justice system.” And that is precisely the task that confronts him now with the Coleman case and the clemency petitions awaiting his attention, in particular that of Fowlkes.

The story of Fowlkes’ bizarre odyssey, from arrest through the Virginia courts to prison, shows how the pursuit of justice can go so far off track — throwing a poor and poorly represented defendant into the dark obscurity of the nation’s penal system, with little if any chance of ever emerging. As is often true in cases of wrongful conviction, the devil is literally to be found in the details. What at first glance seems an indecipherable web of contradictory claims, the Fowlkes case ultimately comes down to the word of a single, highly suspect witness, Sheila Barbour Stokes, an incarcerated career criminal who, in exchange for her testimony, had a pending felony dropped and thereby avoided what could have been an additional 10 years in prison.

In his closing argument to jurors at Fowlkes’ second murder trial in Nottoway County in southern Virginia (jurors deadlocked 7-5 in favor of acquittal in the first trial), prosecutor Mayo Gravatt acknowledged that his star witness came with a lot of baggage: “Sheila Barbour is not the kind of witness I’m happy to bring in court here and sit down in front of you and put under oath and have be a key witness in the case.”

But Gravatt put her on the stand anyway, for the very simple reason that Sheila Barbour Stokes was really all he had. He had no physical evidence linking Fowlkes to the crime and he acknowledged in his closing arguments to the jury that at the time of the crime, Fowlkes was probably 30 miles from the scene of the murder attending a church service, where no less than a dozen witnesses, including a police officer, saw him. Only Stokes linked Fowlkes to the planning of the crime and the disposal of evidence. Gravatt’s case was so thin, in fact, that he’d proposed a plea bargain, which would probably have resulted in a three- to five-year sentence, if Fowlkes would testify against the state’s primary suspect, Bruce Allen. Fowlkes refused, insisting he knew nothing about the crime. Allen, who was identified by the surviving victim, is serving two life sentences for the crimes.

Without Sheila Stokes, Gravatt could not have even considered indicting Fowlkes. But why did she testify? Nottoway County court records strongly suggest that there was a deal. They show that a pending felony charge against Stokes was dismissed after she testified at Fowlkes’ first trial. In addition, Gravatt failed to inform Fowlkes’ defense of the deal until Stokes was literally on the witness stand testifying against Fowlkes, an apparent violation of the law. The jury, which almost certainly did not understand that there was a deal and that Stokes had a personal motive for testifying as she did, took just 40 minutes to find Fowlkes guilty of the brutal stabbing murder of Ida Bowlin and the robbery and attempted murder of her husband, Albert, in Crewe, Va. It took less than 10 minutes to send Fowlkes away for 45 years.

Equally important, the evidence suggests that Gravatt knew his star witness was committing perjury. Gravatt told jurors, “I want you to really study hard, each of you” a statement Stokes gave police in January 1996 in which she claimed Fowlkes confessed to her that he was in his car, outside the Bowlin home, when the murder and robbery took place. But Stokes’ statement to police is completely contradicted by Gravatt’s own admission that Fowlkes was not at the murder scene, but in church. Either Gravatt knew that Stokes was lying when she placed Fowlkes at the scene of the crime, or he believed that Fowlkes was stupid enough to tell Stokes he was involved in a murder when he wasn’t. Unfortunately for Fowlkes, his lawyer failed to point up this contradiction to the jury. He also failed to call Stokes’ brother who was prepared to testify that Stokes lied at Fowlkes’ first trial when she said the perpetrators had planned the crime at his house.

Stokes’ most incriminating statement at trial, that she helped Fowlkes clean blood from the rear seat of his car the day after the murder, would also seem inconsistent with Gravatt’s admission that Fowlkes was in church when the crime was going down. At trial, Gravatt speculated to the credulous jurors that the perpetrators might have waited until Fowlkes could join them the following morning to dispose of the bloody evidence. But why would the murderers wait eight hours to get rid of hot evidence? And wouldn’t the blood have dried by then? If so, how did it get all over Fowlkes’ car? Why would they need Fowlkes, and why let him know where the incriminating evidence was dumped?

Fowlkes’ lawyer never asked any of these questions, and Gravatt never volunteered any clarifications. Fowlkes’ lawyer also failed to call to the stand Stokes’ sister, who signed an affidavit saying she was with Sheila the whole day after the crime — and that Sheila could not have been with Fowlkes.

Then there’s the astonishing fact that the state’s own forensic expert found no blood in Fowlkes’ car. Once again, Fowlkes’ lawyer didn’t ask the expert to testify. Equally important, Stokes told police that she had used Dawn dish detergent to scrub the car. Given that the forensic analysis found no blood, the presence of a specific brand name detergent would have greatly enhanced Stokes’ credibility, while its absence would have been very damaging. But when police sent Fowlkes’ car to the forensic lab for analysis they apparently didn’t bother to ask it to look for traces of the detergent, and no mention of it is made in the forensic report.

So why didn’t Fowlkes’ lawyer ask the most seemingly obvious questions or put up exculpatory witnesses? Shawn Armbrust, director of the Mid-Atlantic Innocence Project, which advocates on behalf of wrongfully convicted defendants, says lousy lawyers are a recurring theme in wrongful conviction cases, and “very common in states such as Virginia” that have no statewide defender system. “People assume that if you get a bad lawyer at trial it is corrected later in the process,” says Armbrust. “But it actually dooms the defendant throughout the appeals process.”

Although it would seem that Fowlkes was convicted on the basis of perjured testimony, it’s hard to be certain because Stokes’ credibility, highly questionable at the time of the trial, is now about as close to zero as is humanly possible. Despite repeated requests by Salon, Gravatt, the prosecutor, declined to answer any questions about the case. Likewise, Stokes, who is presently serving an eight-year sentence after pleading guilty to 29 felonies, including fraud and deceit, refused to discuss the case.

Meanwhile, Stokes has signed two contradictory affidavits. In the first, penned nearly five years after Fowlkes’ conviction, she recanted her trial testimony in its entirety, admitting that her statement to police implicating Fowlkes “was false,” that she’d never heard Fowlkes talk about the crime or plan the crime, and that she’d fabricated the story about helping Fowlkes clean blood from his car. Moreover, she admitted to cutting a deal for her testimony. “Mayo Gravatt told me that he could get the charges off of me if I help them. I was scared therefore I agreed to help.” Then, a year after acknowledging that she’d committed perjury at trial, Stokes recanted her recantation. Perhaps not coincidentally, she had new charges pending against her at the time, which the state was kind enough to dismiss.

In any case, Stokes’ initial confession of perjury came about four years too late for Fowlkes. Virginia law at the time gave a defendant only 21 days following conviction to introduce new exculpatory evidence. (To his credit, Warner worked to repeal this law, which was an affront to the most elemental notions of justice.) Meanwhile, a federal statute of limitations, enacted after the Oklahoma City bombing in order to speed up the execution process nationwide, set a one-year limit for appeals. Fowlkes’ situation was further compromised by the fact that Virginia does not provide convicted felons with lawyers once their state appeals are complete. Fowlkes filed his own federal appeal and messed up, missing a filing deadline, which prevented him from ever having his evidence of innocence considered by a court of law.

Today Larry Fowlkes remains incarcerated at Virginia’s Lawrenceville Correctional Center, in failing health. Diabetes and vascular disease led to the amputation of his left leg. Now 49, he continues to proclaim his innocence, but has exhausted all appeals. Fowlkes would probably be better off if he were there under a death sentence. With an execution date, the media might be more interested in his case. But Fowlkes has much in common with many of the innocents released from death row. His predicament appears to have been a result of lousy lawyering, questionable witness testimony, and a judicial system that has prevented him from gaining a full hearing on the evidence. It is, of course, unfortunate that no jury ever heard all of the evidence debated in open court. But that is precisely why the Founding Fathers provided for clemency.

A man at one extreme end of the debate over when and how to grant it currently resides in the Oval Office. Before he was elected president in 2000, George W. Bush denied clemency as governor of Texas to 152 men and women. Bush touted his high moral “character” and assured skeptical voters that he had reviewed each and every death penalty case “carefully” and “thoroughly.” It is now known that Bush systematically rubber-stamped executions and repeatedly ignored evidence that made a case for clemency, including evidence of innocence. At the other extreme, Illinois Gov. George Ryan, also a Republican, commuted the death sentences of 167 death row inmates after he became convinced that the justice system was fatally flawed. Ryan noted that he had personally come within hours of signing off on the execution of an innocent man.

In a country where two-thirds of the population continues to support capital punishment, it is not clear that most would support either the Bush or Ryan approach. What is clear is that the seemingly endless reports of wrongful convictions have had an impact on American opinion and on jurors fearful that they could make a lethal mistake. Death sentences are down by half since the late 1990s, while executions are down 40 percent from their peak in 1999. One Gallup poll found that 73 percent of Americans believed an innocent person had been executed in the U.S. in the last five years. Just last month, Virginia voters defied the state’s political profile by electing a Democrat and death penalty opponent, Lt. Governor Tim Kaine, to replace Warner when his term ends. And even some of the country’s most radical conservatives, such as Pennsylvania Sen. Rick Santorum — who has voted to make it harder for prisoners like Fowlkes to have their appeals heard — have expressed uneasiness about the death penalty because of the potential for a miscarriage of justice. “I felt very troubled about cases where someone may have been convicted wrongly,” Santorum said earlier this year.

It is no longer self-evident that Americans feel comfortable with a cavalier approach to clemency when people are literally pleading for their lives and liberty. As Warner contemplates the White House, more Americans may be looking for a politician who is not just tough on crime, but who is serious about insuring that our system of justice works — and when it doesn’t, has the courage to set it right.

Now, it should be stated at the outset that the private affairs of public officials, including extra-marital relations, should under all but the most extraordinary circumstances remain solely the business of the parties involved.

But when a person is charged with a serious crime and his life hangs in the balance, such a private relationship may well become a matter of public interest, because the public has a right to know that the judicial process that prosecutors and judges swear to uphold will not be compromised.

Hood was convicted in August 1990 of the brutal murders of his boss Ronald Williamson, 46, and Williamson’s girlfriend, Tracie Wallace, 26. Hood worked as Williamson’s bodyguard. Both victims were shot at close range in the head. Hood’s bloody fingerprints were found at the crime scene. Although Hood’s trial left a welter of unanswered questions — about a possible accomplice, the motive for the killings, Hood’s mental state, and the quality of Hood’s representation, to name just a few — there is little doubt that the state could easily have won a conviction of Hood by assigning a prosecutor whose presence in the courthouse would not raise a question of unethical conduct.

Yet District Attorney Tom O’Connell chose to prosecute the case himself and not to reveal that he and Judge Holland had been involved in a long-running romantic relationship.

Why O’Connell would have risked jeopardizing what had to have looked like a slam-dunk conviction over questions about his personal life is not at all clear, unless he was fairly confident that no one would dare to challenge him. O’Connell, who has since retired from public service, did not respond to phone calls seeking comment.

For her part, Judge Holland refused to either confirm or deny the alleged relationship with O’Connell, insisting that it would be “unethical to comment” on a pending case. Asked if it was also unethical to try a case in which she had been romantically involved with the prosecutor, the judge said, “I’m not going to comment on anything, and I resent the fact that you’re calling.” Judge Holland, who served on the Collin County court for 15 years before being elected to the state criminal appeals court, has since retired.

The Collin County District Attorney’s Office, where O’Connell served for more than a decade, also refused to respond to written questions, as did John Schomburger, the assistant district attorney who prosecuted Hood with O’Connell.

Close friends of the late Earl Holland, who was married to Verla Sue Holland for 17 years, say there is no question that she and O’Connell had an ongoing, intimate relationship that began while she was married to Earl, a prominent banker active in local Republican politics. Friends of Holland, who died earlier this year, insist that he told them the affair was the precipitating factor in his decision to file for divorce.

“I am 100 percent sure that there was an affair,” said one woman who refused to be named. This source recounted having listened to tape recordings Earl Holland obtained of conversations between the judge and O’Connell that provided irrefutable evidence that the two were intimately involved. Earl Holland had collected an entire “shoe box” of these recordings, she said, but she did not know how he obtained them.

Holland’s friend said Holland “thought he [O'Connell] was a family friend,” and invited him often to his home, only to learn later that O’Connell “was of course sleeping with Sue.” Earl Holland became convinced that the alleged affair had gone on for several years before he learned about it. The divorce was finalized in October 1987. Sources differ on when the relationship ended; according to Holland’s friend, the affair continued for at least a year after the divorce, possibly longer.

Another close personal friend in whom Earl Holland confided said there was “a mountain of circumstantial evidence of an affair,” and that Earl Holland frequently discussed the alleged affair with him, both while he was married to Judge Holland and after. “Earl was convinced that they [Verla Sue and O'Connell] were having an affair. He was absolutely convinced.”

Hood’s original trial lawyer, David K. Haynes, said, “Everyone in the courthouse had heard those rumors” about the judge and the DA. But Haynes said that without proof, he did not feel he could raise the issue at trial.

According to a report prepared by a private investigator in 1995 in connection with Hood’s appeals, Haynes may have had other reasons for failing to pursue “those rumors.” The report quotes a paralegal who worked for Haynes, Janet Heitmiller, claiming that her boss “feared raising the relationship as an issue in Dean’s [Charles Dean Hood's] case would cost them points with the judge concerning other cases” he might argue before her. According to the investigator’s report, Heitmiller learned of the alleged relationship while working for Haynes and believed that Judge Holland and O’Connell “were still dating up to a year after the case was resolved.”

The report, written by Tena S. Francis, also quotes a local attorney, Ray Wheless, as saying that “the judge and DA tried to keep their relationship as private as possible. People in the legal community knew about it, though, and the two could often be seen going to lunch together from the courthouse.”

The investigator concluded that “the relationship with O’Connell is what cost [Judge] Holland her marriage.” The report added that Wheless “does not know why or how or when O’Connell’s relationship with Holland ended.” Now a Collin County judge, Wheless did not return phone calls to his home and office. Although Hood’s appellate lawyers discussed the alleged affair over the years, the issue was never formally raised on any court proceeding.

Today, Hood’s trial attorney, David Haynes, says that evidence of the alleged affair “certainly would have made a difference in the way the defense was approached. It would have cast some doubt about the fairness of the tribunal.” But he says there is no way to know for sure if rulings Judge Holland made against his client were prejudiced due to the alleged relationship with the district attorney.

Richard Ellis, a San Francisco attorney now representing Hood, agrees that there is no way to connect Holland’s rulings to allegations about her personal life, but he considers at least one of her decisions, refusing a defense request for a psychological evaluation, “totally out of the mainstream of judicial authority,” given a Supreme Court ruling on the issue. Although Hood is not mentally retarded, a scientific presentation by a defense psychiatrist might have convinced the jury to forgo the death sentence. As a child, Hood suffered a traumatic head injury, and there was evidence that he was regularly whipped by his father.

David R. Dow, a University of Houston law professor who is also working on the Hood matter, insists, “It is a red herring to look for particular things that are challengeable, because what you have in a case like this is a complete and fundamental breakdown of all the premises of the adversary system.” Based on the relationship of the judge and the prosecutor, Dow says there is no question that Hood should be granted a new trial. “Any criminal defendant who stands to be sentenced to death is entitled to a proceeding that is not only fair, but has the appearance of fairness. At a minimum, there is no appearance of fairness in this case, and we have good reason to believe the judge made decisions that resulted in concrete harm. Did she make those decisions because she was sleeping with the prosecutor? Who knows. But we shouldn’t have to engage in that kind of idle speculation.” Dow says the judge should have recused herself from the case.

Stephen Gillers, a professor of law at New York University Law School, agrees. One of the country’s leading authorities on legal ethics, Gillers said, “There’s no question — it’s incontrovertible — this justice should not have sat in this case, at least not without informed consent on the record from the defense … The public has a right to complete confidence in the court’s disinterestedness, in the court’s objectivity. It’s simply not possible to know how the case might have gone differently or how the rulings might have been altered absent this relationship.”

Gillers cited the widely used ABA Code of Judicial Conduct, which provides that “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Where there is doubt, a judge is obliged to disclose information that lawyers might consider relevant to the question of disqualification.

Citing the same provision, Hofstra law professor Monroe Freedman, author of “Understanding Lawyers’ Ethics,” said, “Beyond any doubt, a judge’s romantic involvement with a lawyer appearing before him ‘might’ cause a reasonable person to ‘question’ his impartiality. I am confident that no one who works in the field of judges’ ethics would take a different view from mine in this case.”

Hood, 36, may have some of the country’s top legal ethicists on his side, but getting the courts to grant him a new trial is another matter. If Judge Holland’s behavior in the case is challenged, the state will almost certainly argue that the defense still cannot prove that her rulings were prejudiced or that they would have changed the outcome of the jury’s deliberations.

With his execution date imminent, Hood’s lawyers have raised several other legal issues. On Thursday, the Supreme Court was scheduled to hear Hood’s appeal for a new DNA test, with a decision expected on Monday. Hood’s lawyers are also contesting the constitutionality of the Texas jury instructions given at his trial, which used the same language as instructions since deemed unconstitutional by the Supreme Court.