May 14, 2000

ON THE RECORD: Capital Punishment in Texas

Bush Candidacy Puts Focus on Executions

By SARA RIMER and RAYMOND BONNER

	Phillippe Diederich for The New York Times
	The death chamber in Huntsville, Tex., where 20 people are to die in the next four months.
	ON THE RECORD
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	Phillippe Diederich for The New York Times
	"I worry that we may execute an innocent person. ... I think our system needs to be improved." Paddy Burwell, Pardons Board

USTIN, Tex. -- Gov. George W. Bush is certain that the 127 people who have been executed in Texas during his tenure were all guilty.

"I'm confident that every person that has been put to death in Texas, under my watch, has been guilty of the crime charged, and has had full access to the courts," Mr. Bush said on the NBC News program "Meet the Press" in February.

But here in Texas, which under Mr. Bush has executed more people than any other state, some of the officials who administer the death penalty, reviewing the case records, considering inmates' appeals and weighing final pleas for clemency, are not so sanguine. These officials, who support Mr. Bush's presidential candidacy and believe in the death penalty, said in interviews that they believed Texas ran the risk of executing an innocent person.

"I believe in the death penalty and I don't want to do anything that will cause George Bush to lose the election," said Paddy Lann Burwell, a retired Exxon manager who was appointed by the governor two years ago to the Texas Board of Pardons and Paroles, which reviews all clemency requests in capital cases and makes recommendations to the governor. Still, in an interview at his cattle ranch outside Westhof, south of Austin, Mr. Burwell voiced concerns about the fairness of the state's judicial system, particularly several cases in which he said prosecutors seemed more concerned with scoring victories, in the form of capital convictions, than with justice.

Over all, Mr. Burwell said, he thinks the system is conscientiously administered. "But I worry that we may execute an innocent person," he said. "Any person would know that is a possibility. I think our system needs to be improved."

Another member of the board, Tom Moss, a retired federal parole officer, talked about his vote for clemency for Troy Farris, who was executed for killing a police officer. The Farris case, Mr. Moss said, was one of two cases in which he "saw something that may have indicated that they were innocent."

Cynthia Tauss, who has studied law, is also on the board. She said she "cried all day" after Texas executed Mr. Farris. "I wasn't sure he should have been given the death penalty," she said. "That's why I voted to commute." A majority of the 18-member board would have to have voted for clemency in order to make a recommendation of it to Mr. Bush.

Charles Baird, a judge on the Texas Court of Criminal Appeals until 1998, was in Washington this week to announce the formation of a national committee to prevent wrongful executions. Asked whether he agreed with Mr. Bush that no one had been wrongfully executed under his watch, Mr. Baird said: "Everyone in Texas hopes and prays that that's the case. I do not share his view." For such certainty to exist, he added, "You have to take the position that this very fallible system has worked flawlessly."

Mr. Baird, along with other judges, law enforcement officials and death penalty lawyers, agrees that some of the conditions that have created doubt elsewhere and have sent innocent people to death row in other states -- especially bad lawyers, a lack of resources for lawyers to mount a vigorous defense and overzealous prosecutors -- exist in abundance in Texas. The state also has endemic problems, including elected judges who are under political pressure to mete out the death penalty and a speeded-up appeals process with a low reversal rate, which trouble some officials and experts. A System's Built-in Risks

No one can point with certainty to a case in which an innocent person has been executed here since Texas reinstated the death penalty in 1976. Death penalty lawyers say it is almost impossible to prove a dead man was innocent; once a person is executed, crucial evidence that might prove innocence disappears and lawyers and investigators want to put their resources into trying to save clients who are still on death row.

But a close look by The New York Times at a half dozen executions carried out during Governor Bush's tenure -- including interviews with jurors, prosecutors, judges, witnesses and co-defendants still on death row -- makes clear that a legal and judicial system rife with these conditions creates, at the very least, the risk of an innocent person being sent to death row. Although most of the officials interviewed said they believed that the executed men were guilty, they questioned aspects of the legal system that sent them to their deaths.

Across the country there have been 87 exonerations in the last 27 years, more than a third of them in the last seven years. These cases have prompted a growing national concern over executions. In January, Gov. George Ryan of Illinois, a Republican who supports the death penalty, announced a moratorium on executions while a thorough review is conducted of the state's criminal justice system. Mr. Ryan, who is Mr. Bush's state campaign chairman, described his state's system, where 13 death row inmates have been exonerated since 1987, 11 of them since 1994, as "fraught with error."

Seven death row inmates were exonerated in Texas from 1983 to 1997 after evidence of witnesses who had lied, mistaken eyewitnesses and prosecutorial misconduct led to the discovery of their innocence.

In the last year, 13 states have had bills pending that would have halted executions. Asked on "Meet the Press" if he would consider following the lead of Governor Ryan, Mr. Bush said he would not. Asked why he thought Mr. Ryan had taken the action, Mr. Bush answered: "Maybe they've had some problems in their courts. Maybe they've had some faulty judgments."

Governor Bush declined an interview request for this article. His top criminal justice policy adviser, Johnny Sutton, answered questions about Mr. Bush's criminal justice record and some specific capital cases in a lengthy telephone interview.

"We have to deal with the harsh reality of the death penalty and we take that responsibility very seriously," said Mr. Sutton, a former prosecutor. "This is probably the most important thing we do in state government. The governor takes it very seriously."

Despite glaring examples of bad lawyering at the trial level in Texas, including at least three widely publicized cases of lawyers who have slept through the proceedings, the state appeals court has reversed only eight death penalty cases in the last five years, while affirming the convictions and death sentences in 256 cases, according to court statistics. This is the lowest reversal rate in capital cases in the country. In contrast, Florida, which ranks behind Texas with the nation's third-highest death row population, has a 50 percent reversal rate. Illinois's rate is nearly 30 percent.

In the Farris case, the one that caused Ms. Tauss of the parole commission to break down into tears, the Court of Criminal Appeals said there was no forensic evidence to link Mr. Farris to the crime or to support the testimony of the two key witnesses against him. But the appeals court upheld the jury's decision.

Then, in an unusual move, seven members of the state parole board voted for clemency, but 10 opposed it and one abstained. Mr. Farris was executed in January 1999. During Mr. Bush's tenure, the parole board has granted clemency to only one death row inmate, according to the board's statistics; as of the end of April, it had rejected 68 clemency petitions. Texas Leads in Executions

Since George W. Bush took office in 1995, Texas has put to death more than twice as many people as the next state, Virginia, with 52, and more than all the executions put together in the next four states -- Missouri with 31, Oklahoma with 21, South Carolina with 20 and Arizona with 18. Texas has 12 executions scheduled for May and June. The state has 462 people on death row, second only to California, with 561 death row inmates (California, in contrast, has executed 8 people). Ann W. Richards, the liberal Democratic governor who preceded Mr. Bush, presided over the executions of a then-record 50 death row inmates.

Unlike juries in many states, those in Texas do not have the option of life without parole.

Mr. Bush has been praised by victims' rights groups. "The families of victims want resolution," said Dianne Clements, the president of one group in Houston, Justice for All. Her 13-year-old son Zachary was killed nine years ago in an accidental shooting.

But the sheer number of executions in Texas, a fiercely pro-death-penalty state, has attracted criticism. The cases of two Texas death row inmates, David Spence and Odell Barnes, drew considerable national attention around the time of their executions (Mr. Spence was sent to his death in 1997, Mr. Barnes two months ago). Questions about their innocence were raised by their lawyers and news organizations. In the Spence case, one of the state's investigators expressed doubt after the trial about Mr. Spence's involvement in the murder for which he was convicted. In the Barnes case, there were questions about forensic evidence. There were accusations of police misconduct in both cases.

Other cases examined by The New York Times also raise lingering questions of possible innocence. More broadly, the cases expose systemic failings in the administration of the death penalty in Texas.

One of those failings is a pattern of overzealous prosecution. In the case of James Lee Beathard, for example, who was executed in 1999, the prosecutor, in a subsequent trial, branded the chief witness against Mr. Beathard a liar and offered a different version of who committed the murders.

A lack of legal resources available to murder defendants in Texas may have sealed the fate of David Castillo, an impoverished high school dropout, who was convicted of murdering a liquor store owner. Mr. Castillo's defense was hampered by the court's refusal to give him an additional $600 for an investigator, and his court-appointed lawyers failed to prepare character witnesses who might have persuaded the jury to spare his life. He was executed in September 1998.

Last year, Governor Bush vetoed a modest indigent defense bill that its backers said would have improved the quality of representation in criminal cases. It would have given counties the authority to set up public defender offices, which only a handful now have, and curbed the power of judges to appoint their friends and campaign contributors to represent indigents. For a small-town practitioner, these appointments can be a lucrative source of income; to remain in the good graces of the judges who dole them out, some lawyers feel bound to move cases quickly. The bill would also have required that a lawyer be appointed within 20 days after a person is arraigned. There is no limit now.

Explaining his veto at the time, Mr. Bush said, among other things, that the bill would not improve legal counsel for the poor. Asked about the bill on "Meet the Press," Mr. Bush said he could not remember it, though he insisted that he was "for public defenders."

Texas also puts a premium on the speed of its executions, aided by an appeals court that rarely overturns capital cases and a clemency board that has voted only once to stop an execution.

This emphasis on speed hurt Jerry Lee Hogue. Although there was strong evidence, including two eyewitnesses, that he had committed the arson-murder for which he was convicted, on the eve of his scheduled execution nearly 20 years later a law enforcement official had gnawing doubts. The official, Joseph Stewart, an arson investigator in Wichita Falls, arrested a man for a different arson who it turned out had been at the arson for which Mr. Hogue had been convicted. The arsons seemed disturbingly similar, Mr. Stewart said in an interview, and he called Governor Bush's office several times, pleading for a reprieve of 30 days in order to pursue the new evidence.

"I'm not a defense lawyer, I'm a Texas peace officer," said Mr. Stewart, a death penalty supporter who has voted for Mr. Bush and has been in law enforcement since he was 21. For this reason he thought Governor Bush would listen to him. He was wrong.

Mr. Sutton said that the governor had rejected Mr. Stewart's entreaties because "the jury decision was right." The execution of Mr. Hogue on March 11, 1998, left Mr. Stewart with grave doubts about how the death penalty is administered. "Being in law enforcement, I am not against the death penalty," he said in an interview in the county building in tiny Crowell. "I had always assumed there was a good set of checks and balances. I was pretty disillusioned afterward." A Blow to Death Row Inmates

Since 1995, the state has appointed all death row inmates' lawyers for post-conviction review. But the Court of Criminal Appeals controls the list of those lawyers, and many highly qualified death penalty lawyers are not on it. There are numerous instances of court-appointed lawyers missing crucial deadlines and filing habeas petitions that raise few if any legal arguments.

Mr. Baird, who served on the appeals court from 1989 to 1998 and reviewed hundreds of death penalty cases, said, "Even in cases where the lawyers did care and worked hard to represent their clients, they were not given the resources necessary to make that representation effective." Mr. Baird, a Democrat, was defeated in his bid for re-election to the court and is now teaching law.

Until 1996, death row inmates in Texas had access to a federally financed resource center, whose lawyers handled post-conviction appeals, helped pro bono firms with those appeals, and monitored all death cases in the system to make sure that everyone had a lawyer. The Texas resource center, which helped several death row inmates gain exoneration, closed after Congress eliminated its financing.

Elisabeth Semel, who directs the American Bar Association's Death Penalty Representation Project, finances two lawyers for the nonprofit Texas Defender Service, but she said that her effort cannot begin to make up for the loss of the resource center.

Other states provide considerable resources to death row inmates seeking to prove their innocence. Most states, for example, have post-conviction offices. Illinois put state money into a post-conviction office after its federal resource center closed. Illinois also has a tradition of private law firms working pro bono on capital cases. In addition, a journalism class at Northwestern University specializes in investigating the innocence claims of death row inmates. With this system in place, evidence has been uncovered that has led to the exonerations of 13 death row inmates in Illinois since 1987. Parole Board Criticized

The Texas pardons and paroles board, another institution that is supposed to safeguard against the execution of the innocent, has been criticized for the fact that it meets in private, votes by fax and is not required to give reasons for decisions. The board members are appointed by the governor to six-year terms.

Ruling on a lawsuit filed by death row inmates in December 1988, Judge Sam Sparks of the Federal District Court in Austin called the board's procedures "appalling," and held that they barely met the minimal procedural safeguards required by the United States Constitution.

"The board would not have to sacrifice its conservative ideology to carry out its duties in a more fair and accurate fashion," the judge ruled. The judge said it was up to the Texas Legislature to make any changes. Governor Bush said he saw no need for a change.

Perhaps because the rate of clemency is so low, lawyers may not always put their full energies into applying for it, said a former lawyer in the governor's general counsel office from 1989 to 1998, Jim Sallans, who reviewed hundreds of clemency petitions in capital cases. He said he "supports the way Governor Bush handles clemency in capital cases," and he said he had no doubt that all those executed under the governor were guilty.

But he faulted the preparation of many clemency petitions and the quality of legal representation for some death row inmates making their final pleas for mercy. "Too many clemency petitions were hastily prepared, and poorly written," Mr. Sallans said. "The attorneys would often call up and ask us for a response, and we would politely tell them that we were doing our best with what little they had submitted."

Governor Bush, who has never witnessed an execution, weighs all clemency petitions, as well as all other cases set for execution, sometimes several days, or more, before an execution, sometimes the morning of the lethal injection. His powers to act are limited by the recommendations of the parole board, except that he may grant a 30-day reprieve on his own. He has never done so.

Finally, unlike many other states, there is no office in Texas that systematically tracks the cases of the nearly 500 condemned inmates. As the pace of executions quickens, with 20 scheduled to die over the next four months, the handful of death penalty lawyers struggle to keep abreast of as many cases as possible.

One of them is Maurie Levin, who runs a one-person branch of the Texas Defender Service in Austin that handles death penalty appeals, with financing from the American Bar Association's Death Penalty Representation Project.

"Reporters keep calling, asking, 'Got an innocence case?' " Ms. Levin said the other day. She threw up her hands in frustration. "How would we know?"