Bush's death penalty dodge

The Texas governor has issued his first reprieve in a death penalty case; the question is whether he's seen the light or is just playing politics.

By Alan Berlow

Published June 12, 2000 11:00AM (EDT)

When George W. Bush announced a 30-day reprieve June 1 for condemned murderer Ricky McGinn, the Texas governor said he took the action because "I want the man to have his full day in court." But a "full day in court" in Texas may not be what most Americans have in mind.

Less than a week after Bush's announcement, the Texas attorney general's office was in New Orleans trying to convince a federal appeals court that Calvin Burdine had received his full day in court and adequate legal representation despite the fact that Burdine's lawyer slept through major portions of his murder trial. "He must show harm," the state's deputy solicitor general told the judge. "Burdine has not done that." There was, however, the small matter of Burdine's death sentence. ("But other than that, Mrs. Lincoln, how did you enjoy the play?")

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.

  • Earlier this year, Bush approved the execution of Odell Barnes, whose court-appointed lawyers failed to interview witnesses who might have helped their client, and conducted no scientific investigation of blood and semen evidence the state said linked Barnes to the crime. (Texas is notorious for appointing poorly paid and unqualified lawyers in capital cases.)

  • Last year the governor signed off on the execution of Canadian Joseph Stanley Faulder, convicted of murdering a wealthy oil heiress, despite the fact that the prosecutor had been hired and paid for by the victim's family, and that the state had withheld evidence that its principal witness was paid more than $10,000 to testify against Faulder. The state's chief psychiatric witness, whose testimony was essential to securing a death sentence, was later expelled from the American Psychiatric Association for presenting unprofessional testimony in Texas death penalty cases.

  • Bush refused to stop the execution of James Beathard, whose co-defendant, Gene Hathorn Jr., recanted his testimony following Beathard's conviction and said he, not Beathard, had been solely responsible for the murder of three members of Hathorn's family. The Texas Court of Criminal Appeals refused to grant Beathard a new trial because state law requires that new evidence be presented within 30 days after a judgment is entered. Hathorn's recantation came 11 months too late.

  • Bush also failed to intercede last year on behalf of Andrew Cantu, who ended up representing himself after two lawyers assigned to his case withdrew and a third never even interviewed the defendant, claiming he didn't know where to find him. (He apparently didn't try death row.) Cantu was executed without either state or federal habeas corpus review of his claims.

  • In 1997, Bush approved the execution of David Spence for the grisly stabbing deaths of three teenagers, despite evidence that Spence may have been framed by police and the lack of physical evidence linking him to the crime.

    As these cases make clear, the complex issues the governor has been asked to consider in weighing the possibility of clemency often have little or nothing to do with DNA. And Bush's assent to a single DNA test does little to suggest a serious appreciation for the pitfalls in capital cases.

    Certainly, there is understandable enthusiasm for DNA testing in law enforcement circles. (Legislation before Congress would allow any convicted murderer access to DNA testing to establish innocence, a right now provided to inmates in only two states. Neither Bush nor Democrat Al Gore has endorsed it.) But DNA has been totally irrelevant in most cases where innocent people have been condemned to death. Of the 87 released from death row nationwide as a result of evidence of innocence, only eight relied on DNA. Others were released after the actual murderers confessed; because evidence emerged that police or prosecutors had framed the suspects; because police informants and other witnesses lied; because police made simple mistakes or exacted false confessions; and because attorneys, private investigators and journalism students finally dug up the truth.

    Maurie Levin, an attorney representing McGinn, says DNA is involved in only a "fraction of the cases" she's seen in Texas and argues that, for all the value of DNA testing, there are a multitude of other problems with the way capital cases are handled in Texas. "Yes, we need procedures to allow for DNA testing, but we also need funding for quality counsel; time to file appeals; money for investigations; an end to the use of jailhouse-snitch testimony without any procedural safeguards; and an end to the entrenched system of greased-lightning, move-'em-quickly-and-cheaply lawyers."

    That is not to disparage DNA. Kirk Bloodsworth, a former Marine with no arrest record who was condemned to death in 1984 (his sentence was later commuted to life) for the rape and murder of a 9-year-old girl, would probably be rotting on Maryland's death row today had it not been for DNA evidence. Several eyewitnesses who said they saw Bloodsworth with the girl on the day of the murder convinced the jury that he should die for the crime. Had the actual assailant murdered the child but not raped her, there would have been no DNA and the innocent Bloodsworth might have been executed.

    As the Bloodsworth case makes clear, jurors make mistakes. They do it all the time. So do police and prosecutors and defense lawyers and judges. And they don't just make mistakes in cases where DNA is conveniently left behind to prove them right or wrong.

    A major statistical study released Monday, which examines every death sentence handed down in the United States between 1973 and 1995 (5,760 sentences and 4,578 appeals), reveals that state and federal courts found serious, reversible error -- errors that undermined the reliability of the sentence -- in nearly seven out of every 10 capital cases (68 percent). Author James S. Liebman, a Columbia University law professor, concluded that such rampant error rates, which were found in nearly every state that handed down a death sentence, put large numbers of people at risk of wrongful execution. Fully 7 percent of those individuals whose cases were overturned were found to be not guilty of the capital crime. In Texas, reversible error was found in 52 percent of capital cases.

    In recent years, both Congress and state legislatures have sought to speed up the execution process in response to suggestions that death row inmates have delayed justice by filing "frivolous" appeals. Shortly after taking office, Bush signed legislation designed to reduce the time between sentencing and execution from an average of nine to seven years or less. But Liebman's analysis suggests that the real reason death cases drag out for as much as a decade or more after sentencing is that "capital sentences are so persistently and systematically fraught with error." He says efforts to cut back on judicial review make "no more sense than responding to the insolvency of the Social Security System by forbidding it to be audited." And for practical purposes, Liebman says the evidence shows the system of capital punishment is itself effectively insolvent because its central purpose, carrying out death sentences, is thwarted 94 percent of the time.

    The major reasons for all of these errors, Liebman found, are "egregiously incompetent defense lawyers who didn't even look for -- and demonstrably missed -- important evidence that the defendant was innocent or did not deserve to die," and police and prosecutors who either did not discover that evidence or deliberately suppressed it.

    A clemency petition now on Bush's desk rests, in part, on claims of attorney incompetence. Gary Graham, who is scheduled to be executed June 22 for a murder the state says he committed when he was 17 years old, says his court-appointed lawyer failed to question numerous witnesses who could have proved him innocent. Graham's current lawyers say there was no physical evidence linking him to the crime, that Graham didn't know the victim and had no apparent motive for killing him.

    Although the state called it a "robbery," the victim was found with $6,000 cash in his back pocket. And police forensics established that Graham's .22 pistol was not the murder weapon.

    Graham was convicted and sentenced to die on the basis of testimony from a single eyewitness, Bernadine Skillern, who acknowledged that she only saw the assailant for two seconds at a distance of 30 to 40 feet. Graham's lawyers allege that Skillern was effectively coached because she was shown a photo array of possible suspects before being asked to examine a group of live suspects in a lineup. The only suspect in both the photo array and the live lineup was Graham. A second witness, Ronald Hubbard, who said he also saw the shooter, was also present at the live lineup but did not identify Graham as the assailant. But neither Hubbard nor a third eyewitness, who also excluded Graham, was ever interviewed by Graham's lawyer, and neither testified at Graham's trial.

    Although a juror hearing such claims might have had a "reasonable doubt" as to Graham's guilt, no jury ever heard these arguments. Bush's own standard for clemency is far more severe than "reasonable doubt," and virtually requires absolute proof of innocence. It's a standard Graham will have a hard time satisfying. Whether he can convince the governor that he never got his "full day in court" remains to be seen. If he does, he'll be the first Texas death row inmate to do so.

    The mounting evidence that innocent people have been condemned to death (including seven in Texas since 1987) has begun to register with a wider segment of the American public in large measure because of the decision of Bush's Illinois campaign manager, Gov. George Ryan, to declare a moratorium on executions in Illinois until such time as he can be "sure with a moral certainty that no innocent man or woman is facing a lethal injection." Ryan's "moral certainty" standard for carrying out a death sentence is probably the most restrictive in the country.

    In the wake of Ryan's announcement, Bush has repeatedly stated that he is "absolutely certain" that no innocent person has been executed during his watch. Bush insists he carefully scrutinizes each pending execution before signing off on it. But the sheer numbers of executions in Texas tend to undermine any claim to certainty. Ryan said he had lost faith in the system for meting out death sentences because 13 innocent men had been found on his state's death row since 1977. But during those two decades, Illinois governors had to review only 25 executions. In Texas, there are seven executions scheduled before the end of the month of June alone and there have been 218 executions since the death penalty was restored 25 years ago. Bush himself says he's reviewed more than half of those (131) or about a fifth of all the executions in the United States during that period.

    Bush's main line of defense to the voluminous evidence of unfairness in his state's execution system is that he's out of the loop, that he plays only a minor part compared to that of juries and courts. "The executive branch role is much more limited," he writes in his autobiography, "A Charge to Keep."

    "I view it as a fail-safe, one last review to make sure there is no doubt the individual is guilty and that he or she has had the due process guaranteed by our Constitution and our laws."

    Bush's role, however, is limited largely as a matter of choice. Although it is true that he cannot grant a pardon or a reprieve without a recommendation from the state's 18-member Board of Pardons and Paroles, no one familiar with Texas politics believes that Bush couldn't get the board (all the current members are Bush appointees) to grant a reprieve whenever he saw fit.

    But even if Bush can distance himself from the actual process of executions, as the state's chief executive and an aspirant to the highest executive office in the land, it is difficult for him to claim he is unaware of how that system functions from one day to the next. Texas papers have been filled, after all, with horror stories about sleeping lawyers, lawyers who have come to court drunk or addicted to cocaine, and others who have failed to present mitigating evidence that might have saved their clients from a lethal injection.

    The death penalty has not yet emerged as a major issue in the presidential campaign. But it is an issue that is unlikely to go away, if for no other reason than that Texas has no less than 17 executions already scheduled before election day, and more are almost certainly on the way.

  • Alan Berlow

    Alan Berlow is the author of "Dead Season: A Story of Murder and Revenge." His writing has appeared in the The New York Times Magazine, Atlantic Monthly and Harper's.

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