Bush’s free-market proposal, which closely tracks a bill favored by Republicans in Congress, is sure to appeal to the party faithful. It attacks what Republicans see as Medicare’s “big government,” “one-size-fits-all” approach to healthcare. Yet it is not at all clear that Medicare’s 39 million elderly and disabled beneficiaries are anywhere near as disillusioned with the program as Bush and more conservative members of his party who have long viewed Medicare as the prologue to socialized medicine.

The bigger problem with Bush’s proposal, and the reason it’s so politically risky, is that it provides no guarantee that all seniors would get the drug benefit he says he wants to give them.

Bush’s plan allows seniors to stay within the existing Medicare system — which provides only in-hospital drug benefits — if they choose to. But Bush can’t tell those who opt for one of the new insurance plans how much coverage they’ll get or how much they’ll have to pay for it because those new drug plans don’t yet exist. Furthermore, it’s not at all clear that the insurance industry would find drug insurance a profitable venture. Many private insurers have already indicated that drug coverage programs would be uneconomical because the only people who would want to buy them would be people with large prescription bills.

In short, the Bush proposal risks creating substantial uncertainty among seniors who are looking for rock-solid guarantees that their health needs, and particularly their prescription drug costs, will be provided for. Whether Bush can sell a plan which remains something of a pig in a poke remains to be seen.

Gore’s program, which he has been heavily promoting for the past month, is relatively simple and straightforward by comparison: provide all seniors a new, heavily subsidized entitlement, a drug benefit under an expanded Medicare program.

During each of the past five years the cost of prescription medications has risen anywhere from 10 to 14 percent, and prices are projected to rise another 10 percent annually until 2008. About a third of Medicare patients have no drug coverage at all, and many insurance plans for those who are covered provide only limited benefits.

Although both the Gore and Bush drug plans are voluntary, Gore’s plan is much more expensive and much more generous in its benefits. The total cost of Gore’s drug benefit plan is estimated to run $253 billion over 10 years, whereas Bush’s plan would cost $198 billion over 10 years.

Both Gore and Bush would provide free drug coverage for the poorest Medicare recipients, individuals making less than $11,300 a year. Those with higher incomes would have to pay half their premiums under Gore but 75 percent under Bush. It is that provision that leads Gore to charge that Bush “leaves millions of seniors without any prescription drug coverage.”

Kenneth Thorpe, a professor of health policy at Emory University estimates that nearly all of the 11.7 million Medicare recipients who currently have no drug coverage would enroll in the Gore plan whereas only 3.8 million would choose to enroll in the Bush plan. The lower participation in Bush’s plan is attributable to the relatively small 25 percent federal premium coverage.

Both Gore and Bush would also provide what is known as “catastrophic” coverage, paying for all prescription drug costs once they reach a certain threshold. But for Bush an individual would have to spend $6,000 a year out of pocket before the government would take over, while Gore would start picking up the tab once expenses rose above $4,000 in a single year. On this provision Thorpe projects that Bush’s proposal would help only about 300,000 Medicare recipients while Gore’s would help 2.7 million.

What would seniors have to spend for premiums under Bush’s voluntary drug benefit plan? This largely depends on the private insurance companies. His own lack of precision hasn’t stopped Bush from running down Gore’s premium proposal, which Bush says would require seniors to pay more in annual fees than they receive in benefits. Gore would require seniors to pay $25 a month starting in 2002, but the amount would rise to more than $50 a month by 2009. Similarly, Gore specifies that the government would pay half of a senior’s annual drug bill ($1,000 of $2,000 in 2002, rising to $2,500 out of $5,000 in 2008), while the amount of this so-called co-payment under Bush’s plan is left unstated.

While the Gore proposal would not take effect until 2002, assuming it were to win approval in Congress, Bush proposes sending $48 billion to the states starting as early as next year to help pay for prescription drugs for the poorest seniors and those with particularly large prescription bills. This interim measure is designed to allow states to get a head start on addressing the problem while Congress fashions a comprehensive national program to take effect in 2004. Fourteen states currently have some form of prescription drug assistance for the elderly (though Texas is not among them). But the coverage of state programs is generally quite limited. And it is not at all clear what kind of coverage they would get with Bush’s $48 billion “Immediate Helping Hand” program.

Fearing it could lead to government-mandated pricing, the nation’s leading drug manufacturers have sharply criticized the Gore plan. And indeed the Gore plan would give the federal government enormous bargaining leverage because they would be negotiating prices on behalf of literally millions of consumers. Of course, the large HMOs and hospital chains already exert considerable leverage of their own in this regard, and that leverage would almost certainly increase under Bush’s plan as well. Nevertheless, from the drug industry’s point of view, the Gore plan is clearly more threatening.

While in the coming weeks we’ll surely be hearing all about how these two plans differ, neither addresses the long-term issues of putting Medicare on a more sound financial footing. Over the next 30 years, the number of Americans covered by the program is expected to double, while the number of those paying into the program declines.

Given the importance of the senior vote in the upcoming election and the volatility of the drug price issue, it is not at all clear why Bush waited as long as he did to come forward with a proposal. Until this week his vague commitment to reform Medicare and provide seniors with a drug benefit left him vulnerable to a steady stream of attacks by Gore. Now he has proposed a drug plan that is in many ways less generous than one already approved by congressional Republicans. Does he really think this will help him get the senior vote?

Quirion was heading for Canada because she can purchase her drugs there — Relafen, an anti-inflammatory arthritis drug, and Prilosec, which treats her stomach problem — for nearly 60 percent less than she would have to pay at the drugstore in Waterville ($399 instead of $979). Like many seniors on fixed incomes, Quirion is acutely sensitive to the price of prescription medications, which have risen at rates of 10 to 14 percent in the past five years and are projected to rise another 10 percent annually until 2008. She says she simply can’t afford to pay U.S. prices for all the medications she needs.

“I skip ‘em a lot and buy the cheapest meals I can find,” she says. “Otherwise I couldn’t get by. I see a lot of my friends cutting pills in half or skipping meals or their drugs.”

The vision of low- and moderate-income seniors across the country skimping on servings of potato salad to afford a heart drug that could keep them alive is just the sort of nightmare that has politicians from both parties falling over one another to convince seniors they’re on the case. But where Gore, in his recent populist incarnation, has been accusing the drug industry of “price gouging” and has made the drug companies one of the cardinal bogeymen of his campaign, Bush appears to have recognized only belatedly that senior citizens view skyrocketing drug prices as a colossal problem.

Bush’s decision to attack Gore on this particular issue is more than a little perplexing. He still doesn’t have a plan of his own for voters to examine. Nor does he seem to realize that it’s not only Gore who is out in front of him on this issue. A sizable number of state legislators, including many from his own party, are pushing initiatives that are far more radical than anything the Texas governor is likely to come up with, and far more consistent with the approach Gore is taking.

The Gore campaign has been hitting two big points in this debate. The first has to do with a new government-financed drug benefit under Medicare, which provides coverage to 39 million elderly and disabled Americans. The second has to do with whether the government can force down the prices it pays for drugs provided under Medicare.

Gore and many state legislators are proposing efforts that would have government or government-authorized agencies negotiate drug prices with manufacturers. This may not seem like a terribly radical idea, given the fact that government negotiated prices are the rule in just about every other country in the world. But these proposals are making the drug industry apoplectic because it fears that government entities representing millions of consumers could effectively try to dictate the price they pay for drugs.

Bush’s new television ad attacks Gore for “pushing a big government plan that lets Washington bureaucrats interfere with what your doctors prescribe.” In fact, the only limitations on drugs would be decided by the same sort of pharmacy benefit managers who make such decisions for Medicare patients today in hospitals around the country. The new managers would simply be choosing drugs for a vastly larger population at, presumably, a substantially reduced price. The big difference between Gore and Bush is that Gore would provide drugs free to the poorest seniors and pay up to half of the drug bill for other seniors until they had paid out $5,000 and everything on top of that, while Bush seems to favor something closer to a plan approved by House Republicans that would help seniors buy insurance to pay for their drugs. Bush has yet to suggest any plan for reducing the cost of drugs purchased either by the government under Medicare or by ordinary citizens.

In the abstract, Bush’s claim that he will provide seniors a “choice” of providers to pay for their drugs rather than a single government-mandated plan may sound appealing. But when the governor takes the details of his program on the road, he’s likely to find that many Republican state legislators are so exasperated by the huge drug price increases and the clamor against high prices from their constituents that they are ready to take some very un-Republican measures to force lower drug prices down the throats of the pharmaceutical manufacturers.

“The pharmaceutical companies are getting away with murder in this country,” says Florida state Rep. Nancy Argenziano, a Republican in a key presidential battleground state with a huge population of senior citizens. “And until someone has the gumption to tell them they have to come to the table and talk [about lowering prices], we’re going to have to threaten them with price caps on drugs.”

Argenziano, whose mother lives on an income of $900 a month and has a difficult time paying for her medications, insists that manufacturers should be forced to negotiate discounts of at least 25 percent for senior citizens. “I’m a Republican. I believe in private enterprise,” she says, but “Americans are subsidizing all of these other nations,” because all other countries mandate lower prices. Argenziano plans to introduce legislation that would have Florida buy drugs in bulk for all uninsured senior citizens.

In a similar vein, John Marchi, a conservative Republican state representative in New York, has proposed a law stipulating that drugs not be sold in his state at prices higher than the lowest price paid by any federal or state entity. This crowd-pleasing proposal would effectively give every citizen in the state drugs at discounts of 30 percent or more.

Are New York and Florida exceptions to the rule? Hardly. More than two dozen states are considering initiatives to control drug pricing. And unlike the presidential candidates’ debate or the debate in Washington, where Republicans and Democrats are largely divided along party lines, there is a surprising degree of bipartisan agreement at the state level.

In May advocates of lower drug prices were given a major shot in the arm when Maine enacted a law that seeks to force drug companies to negotiate prices for any citizen of that state lacking prescription drug coverage — about 325,000 of the state’s 1.2 million people.

Chellie Pingree, a Democratic state senator, insists that the new Maine law, which she wrote, creates a system that is really no different from what an HMO does when it negotiates prices for its patients, or what hospitals do when they negotiate large bulk purchases. But Pingree says she would like to see Maine negotiate discounts that are even deeper than those provided to the typical HMO.

“We really want to get a price like that negotiated by the Federal Supply Service, a discount of 30 to 40 percent,” she says referring to the federal buying agency that negotiates deep discounts for veterans hospitals, Medicaid patients, the Public Health Service and other government-run programs.

The Pharmaceutical Research and Manufacturers Association (PhRMA), the powerful lobbying organization for the country’s major drug producers, has assailed the Maine law as “anti-patient, anti-innovation, anti-business and unconstitutional” and recently filed a lawsuit in the U.S. district court in Bangor to stop the law from taking effect. PhRMA officials argue that the statute is unconstitutional because it would regulate commerce beyond Maine’s borders. They also claim that it would deprive the companies of the money they need to research and develop lifesaving drugs and would lead to inferior healthcare.

But Joe Bruno, a Republican state representative who owns 10 pharmacies and helped negotiate passage of the Maine law, doesn’t buy it. He says he’s not worried about the industry cutting back on R&D.

“I’ve heard that argument a zillion times, and I’ve never seen it happen. My response is, ‘Why are you spending more on advertising than research and development? Why don’t you cut back on your advertising?’” Still closer to home, Bruno rejects another industry claim — that the law would put many pharmacists out of business.

“I think I understand the retail pharmacy business pretty well,” Bruno says, “and I wouldn’t anticipate much difference in profits, because I think the lower prices will mean higher sales.”

Indeed, a 1999 Merrill Lynch study reached the same conclusion. It projected a “worst case” scenario in which industry profits would decline six percent if all Medicare recipients without drug coverage were able to purchase drugs at a 40 percent discount. “On a best-case scenario,” the report predicted, “the sales impact could be slightly positive.”

Jeff Trewhitt, a PhRMA spokesman, acknowledges that the industry already negotiates discounted prices for Medicaid recipients, the Veterans Administration, American Indian health services and a variety of other federal programs, and that these are all “a form of price controls.” He says the industry has lived with controls on 15 percent of the American market but won’t extend such discounts to millions of additional customers. “You have to draw the line somewhere,” Trewhitt said.

In practical terms, drawing the line means keeping that other 85 percent of the market unregulated so the drug companies can set prices at whatever levels the market will bear. It also means stopping state initiatives such as the one in Maine before they take effect. “The last thing we need,” says Trewhitt, “is a patchwork quilt of differing state laws that will slow development of new medicines.”

But in the absence of any fix from Washington, industry efforts to thwart new state laws are becoming increasingly difficult. The Vermont legislature very nearly approved a bill similar to that on the books in Maine. And legislators in Maine, New Hampshire, Vermont, Massachusetts and New York are discussing creation of a single, gigantic buying cooperative that would negotiate prices on behalf of those states’ 25 million citizens.

Will buying pools solve the problem of senior citizens like Violet Quirion? Not likely. The proliferating state efforts to negotiate or force lower drugs prices don’t begin to help those people without any health insurance, or those seniors who still can’t afford drugs even at a 40 percent discount. In the end, there is also broad agreement that some sort of federal remedy is necessary.

But Maine’s Pingree isn’t holding her breath. “Everyone says, ‘Why don’t you allow a federal solution?’ Well, welcome to our world. The fact of the matter is the Congress isn’t doing it, so we’re trying to be creative and do something for our people and put some pressure on the Congress.”

For the rest of this week, Bush’s TV ad will hammer away at Gore’s prescription drug proposal in nine key states, and Gore will be answering with ads of his own. But it’s unlikely that these 30-second skirmishes will have much effect on the target population. Large numbers of senior citizens are well-versed in this issue and they are unlikely to be sedated with placebos and anodynes.

Unless Washington acts to provide senior citizens a drug benefit under Medicare, it’s a solid bet that more and more states will follow the example of Maine and try to force the pharmaceutical industry to lower its prices. In the meantime, there’s no question that the growing momentum of those state efforts is being heard in Washington. But nothing is likely to come out of the Capitol until after the elections.

Quirion insists neither presidential candidate is proposing the broad solution she believes is necessary. “We need national healthcare,” she says. “That way everyone will get the care that they need.”

But the Clinton-Gore administration tried that approach and paid a heavy political price. For the foreseeable future voters are probably going to have to settle for incremental health care reforms, if they get anything at all.

Bush’s decision in the McGinn case has been widely seen as an astute move by the presumptive GOP presidential nominee to moderate a perception that he may be too zealous about executing people. “By granting a reprieve to a convicted murderer,” a Time magazine headline opined, “Bush highlights the first part of compassionate conservative.”

Because Bush had signed off on 131 executions without granting a single reprieve, his action on McGinn was a man-bites-dog novelty story deserving the full-blown front page coverage it received. Whether or not this constitutes evidence of “compassion,” it begs the question of why 131 earlier cases were so undeserving. And the answer speaks volumes about Bush’s notion of justice as well as the way the Texas criminal justice system is administered.

On its face, the McGinn case was an easy and, some would argue, safe call. McGinn was convicted of the 1993 rape and ax murder of his 12-year-old stepdaughter. At the time of his trial, a sophisticated DNA test that could positively determine if semen and pubic hair taken from the victim were McGinn’s was not yet available. McGinn says the test, now available, will prove he was innocent. All Bush has done is stay the execution so that the science can be performed. If the test shows McGinn was not the rapist, his lawyers will seek to have his conviction overturned. If the test shows McGinn was the rapist, he will die and Bush will be able to say he bent over backwards to insure that justice prevailed.

“If there is any doubt, any outstanding evidence that exonerates him of the rape, we ought to look at it,” Bush said in granting McGinn’s reprieve. Sounds reasonable enough. But there have been numerous cases since Bush took office in which the doubts raised by individuals selected for execution were far more serious than those of McGinn.

Consider, for example, Betty Lou Beets, the 62-year-old grandmother executed last February. Like McGinn, Beets was eligible for a death sentence under Texas law because she was convicted not only of murder but of aggravated murder. In McGinn’s case the aggravating factor was rape. In Beets’ case it was the state’s claim that she killed her husband in order to recover his insurance and pension benefits. Without the aggravation, neither McGinn nor Beets could legally be condemned to death.

The difference between the two cases is that McGinn’s alleged rape is now easily tested with DNA. Beets, on the other hand, could not give the governor the near-absolute certainty he demands in granting a reprieve. Beets was almost certainly guilty of murdering her fifth husband and burying him under a little wishing well at the front of her mobile home near Gun Barrel, Texas. But the evidence that Beets was not guilty of capital murder — a murder that qualifies for a death sentence — was stunning.

Beets’ attorney, E. Ray Andrews (who later served a three-year federal prison sentence for soliciting a bribe while serving as district attorney in another murder case), never told the jury that Beets didn’t even know about the insurance policy on her husband at the time he was murdered. She learned of it more than a year later thanks to Andrew himself. Why would an attorney withhold such critical evidence from a jury? Who knows. But Andrews had obtained the literary and movie rights to Beets’ life story in lieu of payment for defending her. Had he revealed her ignorance of the insurance policy, he would have had to withdraw from the case and testify on her behalf. That would have also meant losing lucrative rights to Beets’ story — and, perhaps, a better ending for the movie.

Bush and his aides say that in reviewing death sentences he takes into account an individual’s personal history — including evidence of sexual abuse and family violence — as well as whether there was a fair trial. But Beets’ attorney failed to present evidence of a long history of sexual abuse, including her rape by her father when she was 5 years old, at the sentencing phase of the trial, which might have convinced a jury to impose a sentence other than death. Although the jury never heard this evidence, it was laid out for Bush in Beets’ clemency appeal. Apparently, he was not impressed.

Bush has consistently maintained that he applies two standards in considering clemency appeals. One is evidence of innocence, the other whether a condemned prisoner had full access to the courts or due process. But Beets is not the only case that calls those standards into doubt.

Given Bush’s near-perfect record of spurning clemency requests in capital cases (he’s granted it just once), Graham’s anticipated appeal would appear a certain nonstarter. In 1998, Bush denied clemency to Karla Faye Tucker, the cute, white, born-again Christian, despite appeals from the pope and Pat Robertson. In February he signed off on the execution of Betty Lou Beets, a 62-year-old great-grandmother, despite evidence that strongly suggests her own attorney — who secured literary and movie rights to her story, and later served a three-year federal prison sentence for extorting a bribe in another murder case — gave her miserable representation.

Nevertheless, Graham’s case is likely to prove problematic for the governor because the condemned man, unlike Tucker, claims he is innocent. A lot of people believe him. Graham’s attorneys will argue that his conviction was based entirely on the testimony of a single witness who picked Graham out of a lineup after first being shown a photograph of Graham by police.

Graham’s case also resurrects the unpleasant question of whether Bush, in his unstinting embrace of Texas-style justice, has tolerated the execution of innocent people. That question has come up with increasing regularity since January, when Bush’s Illinois campaign chairman, Gov. George Ryan, announced a moratorium on executions in his state because 13 innocent people had been discovered on the state’s death row since 1977 (more people than Illinois executed during the same period). A supporter of the death penalty, Ryan said, “I cannot support a system which, in its administration, has proven so fraught with error and has come so close to the ultimate nightmare, the state’s taking of innocent life.” For Ryan, 13 innocents was too many.

Shortly after Ryan’s announcement, Bush dismissed any consideration of a moratorium on executions in Texas, insisting he is “confident that every case that has come across my desk — I’m confident of the guilt of the person who committed the crime.”

Not surprisingly, reporters immediately began wondering how many erroneous death sentences Bush would abide. Seven men have been released from Texas’ death row in the past dozen years, including one under Bush, after courts determined that they had been wrongly condemned. Critics claim the only reason more people haven’t been released is because the state has already executed them. It naturally raises questions about the guilt of the other people on its heavily populated death row (population 462, second only to California’s).

Conservative luminaries Pat Robertson and George Will recently got religion on the issue, expressing concerns about the possibility that innocent people may be executed, given that 87 wrongfully condemned individuals have been freed from the nation’s death rows since 1976. And Thursday, the newly formed National Committee to Prevent Wrongful Executions, whose members include death penalty supporters such as William S. Sessions, the former Texas judge and FBI director in the Reagan and Bush administrations, will call for a reexamination of the process that leads to wrongful death sentences.

A short list of the committee’s concerns reads like a legal brief of the problems in the Texas judicial system, including inadequate provision of counsel; short filing deadlines; limits on evidentiary hearings that prevent defendants from presenting new evidence; and the execution of juveniles (such as Graham, who was 17 at the time of the offense) and the mentally ill, both of which Bush endorses.

Bush has, of course, found a receptive audience for his strong anti-crime and pro-death-penalty position in Texas. But it is not yet clear how this will play with voters who are not used to reading about an execution each week. The Illinois moratorium and publicity about wrongful convictions — including the recent movie “The Hurricane,” about the wrongful conviction of boxer Rubin Carter — accompany polls that show public support for the death penalty, at 66 percent, is the lowest it has been in 19 years.

The “compassionate conservative” in Bush realizes he must not appear completely callous on the subject of taking a human life. In his campaign autobiography, “A Charge to Keep,” he writes: “The worst nightmare of a death penalty supporter and of everyone who believes in our criminal justice system is to execute an innocent man.” Nevertheless, Bush signed off on at least one execution in which the condemned man had a compelling claim of innocence. And many people believe Gary Graham is likely to be the next.

Bush has never commented publicly on the 1997 execution of David Wayne Spence, but the case is worth examining both because Spence made a compelling claim of innocence, and because his case goes directly to the governor’s role in the state’s execution process. Under Texas law, Bush can only commute a death sentence if he receives a recommendation to do so from the state Board of Pardons and Paroles. Absent such a recommendation, Bush’s legal authority is limited to granting a 30-day reprieve.

Bush has used this legal technicality repeatedly to suggest that he actually has no power to stop an execution, and he seems to believe his own rhetoric. Following the execution of Karla Faye Tucker, Bush said, “Despite the call being sounded around the country and world, I could not convert Karla Faye Tucker’s sentence from death to life in prison.” And shortly before Betty Lou Beets was executed last February, Bush’s office issued a press release with this afterthought: “Note: Governor Bush does not have the independent authority to stop the execution of Betty Lou Beets.”

In reality, no one honestly believes that Bush could not have stopped the execution of Tucker, Beets or any other death-row inmate had he seen fit to do so. “One of the myths in Texas is that the governor doesn’t have any power,” says David Dow, a law professor at the University of Houston. “All the governor has to do is communicate his wishes to the members of the Board of Pardons and Paroles who are, after all, his political appointees, and they will do exactly what he wants.” Dow notes that in the one case where Bush commuted a death sentence to life in prison — serial killer Henry Lee Lucas — the governor made it clear what he thought and the board carried it out.

Unlike the Lucas case, in which the Texas attorney general presented Bush with all-but-incontrovertible evidence that the condemned man could not have committed the specific murder for which the state sought to execute him, the Spence case required a bit of rumination. More than any other execution to date, however, Spence’s raises questions as to whether Bush really takes his responsibility in the clemency process at all seriously.

Spence was tried and convicted by two separate juries in connection with what were known as the “Lake Waco Murders.” The three teenage victims, Kenneth Franks, Jill Montgomery and Raylene Rice, were brutally stabbed to death at a Waco, Texas, park in July, 1982. The two girls had also been sexually assaulted.

On its face, the state’s evidence against Spence seems overwhelming. It included, most importantly, testimony from two of Spence’s co-defendants, who pleaded guilty to two of the murders in exchange for life sentences, and testimony from a forensic odontologist who said that bite marks inflicted on the two girls could have only come from Spence. The state also presented seven jailhouse informants who claimed they heard Spence talk about or confess to the murders, and a friend of Spence who said he’d told her that he and “some friends” had raped some “chicks” at Lake Waco.

But in the years following Spence’s convictions, Spence’s lawyers uncovered an astonishing body of potentially exculpatory evidence that had been withheld from the defendant’s trial lawyers. Police investigative files discovered by Raoul Schonemann, who represented Spence post-conviction, from 1991 until his execution, showed that the state falsely informed the court that no other suspects had been identified by police.

In fact, police records showed that although not one of the 20-odd Waco citizens who were at the lake on the night of the murders had mentioned seeing Spence or his co-defendants, they had identified several other potential suspects, among them one Terry Lee Harper, who the same police files showed had actually boasted about having committed the murders.

Seven witnesses reported that Harper had told them of his involvement in the murders and no less than three said they had heard Harper make the statement before the murders were publicly reported on the radio. Harper also had a rap sheet listing 25 assaults, including several against teenagers at Lake Waco. When police tried to interview Harper, he refused to cooperate. When Spence’s lawyers did question him, Harper denied any involvement, and signed an affidavit saying he was home watching “Dynasty” at the time of the murders. But “Dynasty” wasn’t shown that night. When police finally went to arrest Harper in 1994 in connection with another crime, the fatal stabbing of an elderly man, he killed himself with a shotgun.

There are other reasons to doubt Spence’s guilt. Given the grisly nature of the murders, the multiple stab wounds and extensive loss of blood, one might have expected police to find some physical evidence from the assailants.

Yet pubic and head hairs found on the victims’ bodies matched neither Spence nor the state’s other suspects. And the hairs were never tested against any of the other suspects identified in the police investigation. No hair sample was taken, for example, from Harper.

The only forensic evidence the state ever produced linking Spence to the crime was so-called bite marks on the two girls, which an expert state witness testified could only have come from Spence’s teeth. But the state didn’t bother to take bite-mark impressions from either of the other two suspects allegedly at the crime scene.

And the “bite marks” were only discovered a year after the victims were buried, when the prosecutor examined photos of the victims and concluded that faint markings described as lacerations in the autopsy were actually made by teeth. A blind panel of scientific experts brought together by Spence’s lawyers, years after his trial, concluded that it was not even clear that the marks in the photos had been caused by teeth — but if they were, they were not consistent with those of Spence.

Schonemann also obtained an interview transcript and statements written by the state’s principal witnesses against Spence, Gilbert and Anthony Melendez, both of whom agreed to testify against Spence in exchange for life sentences. But when Schonemann compared the state’s early interviews of the Melendezes with subsequent statements and testimony, he noticed critical differences in the latter that patched up inconsistencies in the state’s case.

Where Gilbert Melendez initially told detective Truman Simons that the killers had transported the bodies of the victims in Spence’s white station wagon, when Simons learned that Spence bought the white station wagon after the murders, Melendez revised his statement, correctly identifying Spence’s car as a gold Chevy Malibu. Because the Malibu had only two doors, Gilbert also revised his initial statement that Spence had approached one of the victims “by the back door” of his car. The new statement had Spence approach the victim “on the passenger side in the back seat.”

Still other problems with Spence’s car arose after the FBI dismantled the Chevy and found no evidence that the bloodied victims had been transported in it as Simons’ witness had initially claimed. According to Gilbert, “they [the state] didn’t like the car because [it] didn’t seem logical that you could put three bodies in a car and not find bloodstains or anything … “

So Gilbert again changed his testimony, claiming the bodies were moved in Gilbert’s truck. But the defense was able to produce Gilbert’s mechanic, who testified that the truck was on blocks and inoperable on the night of the murders.

Similarly, Gilbert revised his statement concerning the time he and Spence supposedly arrived at Lake Waco. Initially, Gilbert said they’d arrived at 11:30 p.m. But that couldn’t be true, because the gates to the park closed at 11 p.m. In order to allow the assailants enough time to get to the park, commit the murders, and move the bodies from one part of the park to another, Gilbert moved up the time of arrival by an hour and a half.

But perhaps the most bizarre change in testimony involved the apparent contradiction between Gilbert’s earlier statements describing how the victims had been “screaming” and “hollering” during the murders, and the fact that the victims were found gagged. Actually, Gilbert testified, the victims were gagged after they were murdered.

Gilbert Melendez later testified, against the advice of his attorney, that he had fabricated the case against Spence. Melendez said Simons had promised him that he would be given immunity from prosecution if he went along with the scam (Simons could not be reached for comment). Tony Melendez said in an affidavit that he’d confessed because he feared that if he didn’t, he would be executed.

The Fifth Circuit Court of Appeals found that the Melendez brothers’ recantations lacked credibility, reasoning that no one would willingly subject themselves to a life sentence for a crime he didn’t commit. But there have, in fact, been several proven cases in recent years of innocent men who confessed to murders they didn’t commit after police intimidation. Furthermore, the recantations were not risk-free: By changing their testimony, the Melendez brothers subjected themselves to the capital murder charges they had hoped to avoid.

They were also not the only ones who changed their stories. Two of the state’s jailhouse snitch witnesses later claimed they had fabricated their stories in exchange for favors from Simons. One, Jesse Ivy, signed an affidavit in which he said: “You could say that Truman Simons and [district attorney] Ned Butler put the facts of the case in my mouth, and I put them into the mouths of the other guys in the jail.” Ivy claims he was given conjugal visits with his wife in return for his cooperation.

Another inmate who had testified against Spence signed an affidavit saying he knew Ivy’s story was fabricated. “We all fabricated our accounts of Spence confessing in order to try to get a break from the State on our cases,” said Robert David Snelson. Although testimony by jailhouse informants is highly suspect to begin with, and recantations may be viewed in a similar light, it is also true that in recanting, these witnesses may subject themselves to prosecution for perjury.

Schonemann believes the state of Texas executed an innocent man. But he insists a condemned individual should not have to prove his innocence to have a death sentence commuted by a governor. “The governor had a lot more information available to him than the jury, and there is no way a rational person looking at it would believe Spence was guilty beyond a reasonable doubt,” he said. “The standard for a governor should not be less than for a jury. If there’s significant doubt, he should commute. We’re not asking that he let him go home.”

Was Bush at all disturbed by the questions Schonemann raised? Did he have any lingering doubts whatsoever about Spence’s guilt? Or did he discern anything in the record that might suggest a violation of Spence’s due process rights? Apparently not. In response to a reporter’s inquiries about how the governor made his decision to send Spence to the death house, Bush’s deputy counsel, Stuart W. Bowen, sent a four-page letter noting that both the Fifth Circuit Court of Appeals and the Texas Board of Pardons and Paroles had rejected Spence’s claims.

“In reviewing requests for reprieve, the Governor examines whether the applicant has had full access to the courts and whether there exists any credible new evidence indicating that the applicant is innocent,” Bowen wrote. “Spence’s application failed to meet these standards of review, and thus his application was denied.”

Although Bush’s “standards” suggest a genuine openness to appeals based on innocence and due process, in practice what Bush and his lawyers seem to require from those on death row is absolute proof of innocence. Such a standard applied in a court of law would, of course, be viewed as un-American, undermining one of the most fundamental precepts of our justice system. Although juries may not condemn a man unless they are convinced of guilt “beyond a reasonable doubt,” a governor may sign off on a death warrant without applying any standard or even looking at the case.

Bush’s insistence that no innocent person has been executed on his watch begs the question: How does he know? The claim is questionable for a number of reasons, particularly since Bush has endorsed efforts that actually increase the likelihood that an innocent person will be condemned. Bush campaigned for and, once elected, signed into law an act designed to limit appeals by death-row inmates and speed up the time between sentencing and execution from an average of nine years to seven or less. The law would probably have resulted in the wrongful execution of the seven men released from the state’s death row, had it been in effect during the previous 12 years, since all seven served more than seven years on death row before their release.

Bush also vetoed legislation, unanimously approved by the Texas Legislature, that would have made modest improvements in the quality of attorneys provided to indigent defendants, despite the fact that the state has, by any objective measure, one of the worst systems of indigent criminal defense in the country (only three of the state’s 254 counties have full-time public defender offices).

Although incompetent trial attorneys have been directly responsible for several high-profile cases that led to wrongful death sentences, the state of Texas leaves funding of criminal defense almost entirely to local governments. Of the $153 million in federal criminal justice grants the state has received since Bush took office, not one penny has gone to indigent defense. This has changed little since Gary Graham’s arrest 19 years ago. His court-appointed trial attorney failed to even interview several witnesses to the murder who said they were certain that Graham was not the killer, and those witness were never called to testify for Graham at trial, his lawyers claim.

Granting clemency, meanwhile, is an extra-judicial proceeding to which any governor may bring any standard he desires — or no standards at all. Bush says he reviews each and every death sentence. But the sheer volume of executions in Texas militates against any serious review.

Even Bush’s former counsel, Judge Alberto R. Gonzales, says that a typical execution would receive no more than 30 minutes of the governor’s time.

Because Bush doesn’t have the time to review these cases, he relies instead on jury verdicts, which he admits he is loath to reverse, and the recommendations of his hand-picked Board of Pardons and Paroles. But the BPP does not seriously review these cases. In fact, it has been shown to be little more than a clumsy charade of clemency review.

In 1998, Judge Sam Sparks of the U.S. District Court in Austin, Texas, found that the board hadn’t held a single hearing on a death-row clemency appeal nor conducted a single meeting among its members — not even a telephone conference call — nor investigated a single case in 25 years. “It is incredible testimony to me,” Sparks said, “that in 70-plus cases, in an 18-member board, that no person has ever seen an application for clemency important enough to hold a hearing on, or to talk with each other about.” Nevertheless, Bush has not contravened the board in a single case.

When the board declines to recommend clemency, Bush can stand up and say the case has been thoroughly reviewed by the courts and by the board, and salve any guilt he may have about executing a possibly innocent person by insisting that he was powerless to do anything more than grant a one-time 30-day reprieve. What the governor doesn’t say is that he could also order his board to hold a hearing or investigate a case or ask it to reverse one of its decisions because he has examined the evidence and has doubts about an individual’s guilt.

Bush doesn’t do that not because he is powerless, but because he has made a conscious decision to not seriously review nearly all the 126 (since an execution May 9) death sentences that have crossed his desk.

Is Gary Graham innocent? It’s hard to say. In addition to the questionable witness identification, his lawyers will also argue that crime scene witnesses who would have testified that Graham was not the assailant were either not put on the stand or were not asked if Graham was involved. Also, while Graham was found with a .22 pistol, police concluded it was not the .22 used in the murder.

Graham’s lawyers believe that a jury will acquit him if it hears the critical evidence never presented at his trial. But that will only happen if he’s granted clemency. And in George W. Bush’s Texas, that’s probably expecting too much.