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                                                         CAPITAL PUNISHMENT     

THE GARY GRAHAM CASE

In Texas, a Battle Escalates As Execution Draws Near

By Paul Duggan
Washington Post Staff Writer
Thursday , June 22, 2000 ; A03

AUSTIN, June 21 –– As Texas's pardons board prepares to vote Thursday on Gary Graham's petition for a sentence commutation or reprieve, opponents and supporters of his planned lethal injection have escalated their public relations battle over one of the most debated death penalty cases of Gov. George W. Bush's tenure.

To his many supporters, Graham is not a murderer but a "victim," an innocent man railroaded into a "killing machine" known as the Texas death penalty system. But to those in favor of his scheduled execution Thursday, Graham is not only a murderer but a remorseless one, a manipulator whose highly publicized campaign for clemency is based on lies and misguided sympathy.

After a week of demonstrations here and elsewhere in the country, Graham's supporters said they intend to show up in huge numbers Thursday outside the state penitentiary in Huntsville, 130 miles east of Austin, where Texas carries out its executions.

Officials there said security would be exceptionally tight around the prison, where 221 inmates have been put to death since the restoration of capital punishment in 1976, including 134 since Bush took office 5 1/2 years ago.

Secluded from the turmoil, the 18 members of Texas's Board of Pardons and Paroles--all Bush appointees--are studying hundreds of pages of legal briefs, police reports and court records filed by prosecutors and Graham's attorneys.

Graham, charged with killing a man in a 1981 parking lot robbery in Houston, was convicted based solely on the testimony of a woman who said she glimpsed the shooter's face for a few seconds. In statements videotaped by Graham's current laywers, two witnesses who were not called to testify at the trial said Graham was not the gunman they saw. Graham's attorneys point out that those witnesses have never been heard by a judge or jury.

In affidavits filed with Graham's clemency petition, three trial jurors who recently viewed the videotaped statements said they would not have voted to convict Graham if they had heard those witnesses in court.

Graham is seeking a commutation of his sentence to life in prison or a four-month reprieve so that the two witnesses can testify before the pardons board.

If a majority of the board votes against clemency, it would spare Bush, the presumptive GOP presidential nominee, a difficult political decision, because he would be legally powerless to stop the execution. But if a majority favors clemency, it would be up to Bush to grant or deny it. The board's decision likely will come just hours before Graham's scheduled 6 p.m. (CDT) execution.

While Graham's supporters staged demonstrations this week in Austin, New York, Chicago and other cities, anti-death penalty activists dogged Bush at campaign stops in California. At a Los Angeles news conference today, Bush avoided commenting specifically on Graham's case, but reiterated his faith in the Texas death penalty system.

"I analyze each case when it comes across my desk," Bush said, in what has become his standard reply to death penalty questions during the presidential campaign. "And as far as I'm concerned, there has not been one innocent person executed since I've been the governor."

Texas law allows the governor to issue a one-time, 30-day stay of execution for a condemned prisoner.

But Bush's office said he cannot issue a 30-day reprieve for Graham, because Graham was granted a temporary reprieve by then-Gov. Ann Richards (D) on the eve of an execution date in 1993. A court later issued a longer-term stay.

Death penalty opponents, noting that the pardons board members were appointed to their $80,000-a-year jobs by the governor, said they have focused their protests on Bush because they believe he can influence their vote. Bush's office said he has no such power.

Asked about the Graham case today, Vice President Gore, the presumptive Democratic presidential nominee, said that a moratorium on executions would be justified in any state where there have been numerous errors by the criminal justice system in capital cases.

Gore, a death penalty supporter, was careful to say he did not not know the situation in Texas, but pointed to Illinois, whose governor has imposed such a moratorium.

"In my opinion, any state that finds it has a record comparable to what was found in Illinois, would be justified in having a moratorium," Gore told reporters.

Bush has said he does not favor a moratorium on executions in Texas, and he lacks the legal authority to impose one unilaterally.

Graham, who was 17 when the killing occurred, has been cast by some supporters as the personification of black victimhood, an innocent young man wrongly caught in a racially skewed death penalty system. The Rev. Jesse Jackson has compared his plight to Jesus being judged by Pontius Pilate.

"He asked the mob, 'What do you think?' And he enforced the mob rule," Jackson said this week. "George Bush is asking, 'What do the polls say?' "

In the days following the May 13, 1981, slaying, Graham went on a crime binge. He eventually admitted to committing 10 armed stickups in which he shot and seriously wounded two victims, though he has always denied the murder charge. Police said they suspect he carried out at least 22 robberies. But the jury in his trial heard about those crimes only during the penalty phase, not during testimony preceding the guilty verdict.

Jackson described those crimes as "heinous youthful indiscretions" that in no way suggest that Graham also committed the parking lot killing.

Proponents of the execution, including Texas Attorney General John Cornyn, a Republican and Bush political ally, also have been spinning the facts in their favor.

Taking an unusually public role in the case this week, Cornyn repeatedly asserted in nationally televised interviews that the two witnesses cited in Graham's clemency petition have already told their stories in court.

But neither of the two witnesses has testified in court. By the time Graham's appellate lawyers found them and obtained their affidavits in the mid-1990s, appeals courts were barred by Texas and federal laws from considering their testimony because too much time had passed since Graham's 1981 trial.

Staff writer Ceci Connolly contributed to this report.

2000 The Washington Post Company



 

Eyewitness Resolute as Texas Execution Nears

By Paul Duggan
Washington Post Staff Writer
Friday , June 16, 2000 ; A03

HOUSTON, June 15 –– A small gunshot 19 years ago echoes loudly today. People close enough to hear the sound when the killer pulled the trigger outside a supermarket here described it as a "pop" in the night. Bernadine Skillern heard it, and glimpsed the shooter's face. She later pointed to a street thug named Gary Graham in a police lineup.

And now, with Graham scheduled to be executed June 22, the only eyewitness to identify him said she remains certain of his guilt.

"There has never been any doubt in my mind," Skillern declared today, speaking publicly about Graham's controversial conviction for the first time in years. "The public is being informed that an innocent man is going to be executed, and that's not true. He shot and killed that man."

With Texas Gov. George W. Bush (R) seeking the presidency, and his state's vigorous death penalty system under intense scrutiny, the Graham case is the latest national lightning rod for opponents of capital punishment. 

Barring a temporary reprieve from Bush, or a grant of clemency from the governor and the Texas pardons board, Graham will become the 135th Texas inmate executed since Bush took office Jan. 17, 1995.

Graham was found guilty based only on the testimony of Skillern, a stranger who saw the gunman briefly. And under Texas and federal laws enacted since 1995 to speed death penalty appeals, courts have declined to review evidence that, according to Graham's supporters, undercuts Skillern's testimony. Graham's defense attorney did not use that evidence at the trial.

Skillern, though, is resolute. "I'm not 'that poor black woman that's sadly mistaken,' " she said, referring to the way some Graham supporters have portrayed her.

Facing news cameras in a lawyer's conference room here, Skillern, 53, an elementary school clerk, said those supporters have been duped by an apparently remorseless murderer. And she said that despite threats and other harassment she has endured, she does not regret getting involved in the case.

"I taught my children you've got to do what's right, no matter what," she said, dabbing her eyes with a tissue. She added, "We should not let criminals feel like we're going to run from them, because eventually they're going to take over our world."

Bush's office rarely comments on pending clemency petitions and would not do so in Graham's case. Texas law allows a governor to grant a one-time, 30-day reprieve to a death row inmate. But it is unclear if Bush would be permitted to temporarily spare Graham's life because, on the eve of a 1993 execution date, Graham received a 30-day reprieve from Gov. Ann Richards (D). A judge later issued an indefinite stay of execution so Graham could continue fighting his conviction.

Bush's office also declined to comment on a May 30 letter it received from the Rev. Pat Robertson, urging a stay of execution for Graham and further investigation of his case. Robertson, founder of the Christian Coalition, has said he favors a nationwide moratorium on capital punishment.

The Texas governor may commute a death sentence to life in prison with a majority recommendation from the parole board, whose 18 members were appointed by Bush. When they will vote in Graham's case is unclear.

As for that small gunshot, it sounded on the night of May 13, 1981, outside a Houston Safeway. The weapon, never recovered, was a .22-caliber revolver. The dead man, Bobby Grant Lambert, 53, was the victim of a mugger, police said. Five adult witnesses described a black male suspect in his late teens to early twenties. He had a slim build, a narrow face, a close-cut Afro hairstyle and no facial hair. Skillern put his height at 5-foot-10 to 6 feet.

She testified she saw his face for a few seconds from 30 to 40 feet away.

Graham, then 17, was arrested a week later for an unrelated crime and eventually confessed to shooting and wounding two people in 10 street stickups in the days after Lambert was slain. But he has always denied attacking Lambert. The 5-foot-9 Graham weighed 150 pounds at the time and had a short Afro and no facial hair.

Shown an array of five mug shots by police, Skillern focused on Graham's face but could not positively identify him. Graham was the only man pictured who did not have a mustache. Only when she saw his face again--in a lineup the next day, flanked by four different men--did Skillern point to Graham as the shooter.

Skillern, who said she has no firm opinion about capital punishment, did not testify at the penalty phase of the trial, in which jurors heard about Graham's other robberies. That evidence, which was not admitted in the trial's guilt phase, is most likely what led the jury to vote for a death sentence, Skillern believes.

But it was her testimony that led to the guilty verdict, and her life has not been the same since, she said. Because of harassment that began in 1993, when Graham's execution appeared imminent, Skillern said, "My house has been egged, my car, my mailbox. . . . I used to go to a lot of social events. I don't do that anymore. I used to be heckled."

Of the four other witnesses, two testified at the trial without identifying Graham as the assailant. The other two witnesses were not called to testify. In affidavits filed with Graham's clemency petition, they said they have since viewed Graham's mug shot and are sure he was not the gunman.

Graham's trial lawyer never interviewed those witnesses, nor did he raise the allegedly suggestive nature of the identification procedure in cross-examining Skillern. Because Graham's first appellate attorney, in the 1980s, had a chance to raise those issues and failed to do so, they may never be heard. A 1995 Texas law signed by Bush, and a federal statute enacted in 1996, generally bar the introduction of new appellate claims that could have been made in earlier proceedings.

"No one is questioning her veracity, her sincerity, or her confidence," said Lawrence C. Marshall, director of the Center on Wrongful Convictions at Northwestern University law school. "What we're saying--and science backs this up--is that people can be absolutely veracious, absolutely sincere, absolutely confident, and absolutely mistaken."

Earlier this week, at a Houston news conference organized by Marshall, 10 men and a woman who were convicted of heinous crimes based on eyewitness testimony, and were later exonerated, spoke against Graham's execution.

Also at the news conference was Jennifer Thompson, who was raped in her bedroom in Burlington, N.C., by an intruder in 1984, when she was 22. "During the ordeal, I studied every detail of [the rapist's] face," Thompson recalled.

Police arrested a man named Ronald Cotton. Thompson picked his face from a photo array and later identified him in a lineup.During two trials, she twice identified him in court as her attacker. Cotton, found guilty and sentenced to life in prison, spent 11years behind bars before DNA tests indisputably cleared him in 1995.

"I'm here to tell you that eyewitnesses can make mistakes," Thompson said.

Cotton's case was among 28 DNA-related exonerations studied in 1996 by a group of criminal justice researchers convened by the Justice Department. The group's task was to identify the investigative and prosecutorial flaws that led to the wrongful convictions.

"The most compelling evidence [leading to the guilty verdicts] in the majority of those 28 cases was the eyewitness testimony presented at trial," the study found.

Skillern does not care what the study found.

"Mr. Graham shot and killed that man in the parking lot," she said. And she said that next Thursday night, if Graham is strapped to the lethal-injection gurney, "I'm going to pray for his soul."

 © 2000 The Washington Post Company



 

Texas Executes Graham After Appeals Fail

By Paul Duggan
Washington Post Staff Writer
Friday , June 23, 2000 ; A01

HUNTSVILLE, Tex., June 22 –– Texas executed Gary Graham tonight, 19 years after he was implicated in a murder by one witness, a stranger who said she glimpsed his face during a robbery. The state pardons board denied him clemency earlier in the day, sealing Graham's fate in a life-or-death legal drama that played out against the backdrop of Gov. George W. Bush's presidential campaign.

Graham, who had vowed not to go quietly to his death, kept his word. Officials said it took 30 seconds for five corrections officers to haul him out of a holding cell in the death house at the state prison here, and about a minute to carry him into the lethal injection chamber a few steps away. He was strapped to the gurney with extra restraints and, after his angry, rambling, six-minute final statement, the chemicals flowed.

"You can kill a revolutionary, but you can't stop the revolution," Graham said. "The revolution will go on . . . you are the people that must carry that revolution on in order to liberate our children from this genocide and from what is happening here in America tonight."

Graham, who again proclaimed his innocence tonight, was pronounced dead at 8:49 p.m. local time, ending his nearly two decades on death row and closing one of the most contentious death penalty cases of Bush's 5 1/2-year tenure.

"After considering all the facts, I am confident justice is being done," Bush said at the state Capitol in Austin shortly before the exection, which was delayed for about 2 1/2 hours by a last-ditch flurry of appeals by Graham. "May God bless the victims of these crimes, their families and Mr. Graham," Bush said.

Graham was 17 in 1981 when Houston police charged him in the shooting death of a man during a stickup in a grocery store parking lot. Defended at his trial by an allegedly incompetent attorney, Graham was convicted solely on the testimony of a woman who said she saw the killer's face for a few seconds through her car windshield. Opponents of capital punishment say Graham's case belied Bush's frequent assertion that Texas's vigorous death-penalty system is fair and mistake-free.

The state Board of Pardons and Paroles voted this afternoon not to recommend clemency for the 36-year-old Graham. Without such a recommendation from the board--which consists of Bush appointees--the governor was legally powerless to stop the execution.

Board Chairman Gerald Garrett said members "are fully aware of the responsibility we have in rendering our votes as part of the executive clemency review process. I can say, unequivocally, that the board's decision not to recommend clemency was reached after a complete and unbiased review of [Graham's] petition and evidence submitted."

Had a majority of the pardons board voted in Graham's favor, the case would have landed on the governor's desk, forcing him to make a difficult political choice.

By agreeing with a clemency recommendation and sparing Graham, Bush might have appeared to be giving in to anti-death penalty activists who have made Graham's case a cause celebre in a growing campaign to abolish capital punishment. By disregarding the board's pro-clemency vote and allowing the execution to take place, Bush might have been accused of stubbornly acting against the interests of justice.

Bush, the presumptive Republican nominee, was dogged by anti-death penalty protesters during a three-day California campaign swing this week.

"I support the board's decision," Bush said in a brief public appearance in which he did not answer questions. "Mr. Graham has had full and fair access to the state and federal courts," including the U.S. Supreme Court, which voted 5 to 4 tonight not to halt the execution.

After visiting with Graham earlier today, Jesse L. Jackson said that Bush should have exerted influence on the pardons board in Graham's favor. Noting that the 18 members owe their $80,000-a-year jobs to the governor, Jackson said "a nod" from Bush to the board could have resulted in a vote for clemency. Bush's office has denied he has such influence.

Jackson said he and other Graham supporters sought a meeting with Bush, to no avail. "The governor will not accept our calls," he said.

Jackson was among the witnesses to Graham's execution tonight, along with Al Sharpton, a civil rights activist and founder of the National Action Network; and Bianca Jagger, an anti-death penalty activist and a former wife of rock star Mick Jagger. Other witnesses said Graham's final statement was an angry tirade against a racist justice system and the "genocide" of black people.

"This death, this lynching, will be avenged," he said in portraying himself the victim of a wrongful execution. "It must be avenged. The people must avenge this murder."

Not since Karla Faye Tucker's execution on Feb. 3, 1998, drew worldwide attention and a crush of protesters to Huntsville had a Texas death row prisoner been the focus of as much public debate as Graham has in recent days.

In the case of Tucker, the first woman put to death in Texas since the Civil War, the major issue was  philosophical--whether the state should execute an admitted killer who committed her crime while addicted to drugs, then was spiritually reborn on death row.

Graham's case highlighted issues that are central to the larger debate over capital punishment nationally, including what death penalty foes contend is the unreliability of eyewitness testimony in many trials, the incompetence of court-appointed lawyers for many capital defendants, and the unfairness of recent laws meant to speed condemned inmates through the appeals process.

Graham's 19-year-old case reached its climax during the presidential campaign, when Texas's death penalty system, by far the busiest in nation, has been under a news media microscope for months. Graham's execution was the 222nd in Texas since capital punishment was restored in 1976, and the 135th execution since Bush took office Jan. 17, 1995.

Bush has repeatedly said he is confident that no innocent prisoner has been executed here during his tenure, prompting reporters to scour Texas's death penalty records. Graham's supporters say neither a judge nor jury fairly reviewed evidence of his innocence.

The testimony of one witness led to his conviction. She picked Graham out of a police lineup and identified him as the killer after he was arrested for unrelated crimes. He later pleaded guilty to committing 10 armed street stickups and shooting two people in May 1981, but always denied committing the parking lot killing, which occurred that May 13.

Two other witnesses, both employees of the grocery store, were never called to testify at the trial or even interviewed by Graham's court-appointed trial lawyer. In affidavits accompanying Graham's clemency petition, both witnesses said they have since looked at Graham's 1981 mug shot and are certain he was not the assailant.

Because their accounts came to light more than a decade after the crime, appeals courts declined to hear them, citing recent Texas and federal laws that were meant to speed death penalty appeals. Those laws greatly restrict the introduction of new evidence in such appeals.

On one corner outside the prison, about 400 protesters, many of them behind the banner of the United National Black Front, listened as speakers denounced Bush. "Free Shaka Sankofa!" they chanted, using the African name that Graham adopted on death row. About 100 yards away, a few dozen Ku Klux Klan members and sympathizers, some hooded and robed in white, some in camouflage, some waving Confederate battle flags, cheered for Graham's end.

 © 2000 The Washington Post Company



 

    THE CALVIN JEROLD BURDINE CASE


In Texas, Defense Lapses Fail to Halt Executions

By Paul Duggan
Washington Post Staff Writer
Friday , May 12, 2000 ; A01

AUSTIN –– Like a vast majority of inmates on Texas's death row, Calvin Jerold Burdine could not afford a lawyer for his trial. So the court paid a lawyer named Joe Frank Cannon to represent him. Today, 16 years after Burdine was convicted of murder and sentenced to die, no one disputes that Cannon did a lackadaisical job. In fact, during important stretches of testimony, he was asleep at the defense table.

Yet despite Cannon's documented incompetence, Texas authorities argue that Burdine should be executed. He remains on death row, facing lethal injection as his appellate lawyers fight the state's attempt to deny him a new trial.

In his Republican presidential campaign, Gov. George W. Bush, a strong proponent of "swift and sure" capital punishment, has repeatedly said he is "absolutely confident" that Texas's death penalty system works fairly. A review of the state's death penalty files show that Burdine is one of many capital defendants whose legal proceedings were poorly handled by lax, inept or inexperienced lawyers.

With few public defender offices in Texas, most indigent defendants must rely on court-appointed lawyers. Interviews with lawyers and other experts, as well as a review of 16 Texas death penalty cases, revealed instances in which lawyers in capital trials slept though key testimony, failed to file crucial legal papers correctly or on time, or had been cited for professional misconduct repeatedly in their careers.

As governor, Bush has relatively little authority over death penalty cases--for example, he does not have the power to impose a moratorium on executions, as Illinois Gov. George Ryan (R) did in February. Last year, however, Bush vetoed a bill that its supporters said would have improved the quality of legal representation for poor defendants. He has defended the prerogative of elected judges to appoint lawyers for indigent capital defendants, despite evidence that some appointments have been tainted by patronage. And in 1995, he signed a law hastening the death penalty appeals process, leaving condemned prisoners even more dependent on court-appointed attorneys.

"At every stage of the death penalty process, Texas is far below any measure of adequacy in terms of the legal representation it provides," said Elisabeth Semel, head of the American Bar Association's Washington-based Death Penalty Representation Project.

Since Jan. 17, 1995, the day Bush took office, 127 prisoners have been put to death in Texas, an average of one execution every two weeks for 5 1/2 years. As of today, 465 inmates, almost all of them indigent, are awaiting lethal injections. No one has yet produced incontrovertible evidence of an innocent person being put to death. However, at least one prisoner has been executed during Bush's tenure despite the fact that his attorney slept through significant parts of his trial. And besides Burdine, at least two other death row inmates whose lawyers snoozed in court are seeking new trials.

Other dead or condemned prisoners were represented by court-appointed lawyers with extensive disciplinary records for professional misconduct, usually for negligent handling of previous clients' cases. One of those lawyers, who represented death row inmate Joe Lee Guy, 28, acknowledged in an interview that he was "an active alcoholic" and cocaine user at the time of Guy's trial, although he said he was sober in court. The lawyer was later unable to file an appeal in Guy's robbery-murder case because his law license had been suspended by the State Bar of Texas, which eventually ordered him to undergo substance abuse counseling.

Another appointed lawyer with a disciplinary record--whose client, Anthony Ray Westley, was executed under Bush's watch--was arrested in the courtroom during jury selection in Westley's trial, charged with contempt of court for failing to file legal papers in the death penalty appeal of an earlier client. The lawyer's subsequent performance in Westley's case was so poor, according to a judicial report, that it resulted in a "breakdown of the adversarial process."

But Texas's highest criminal court, the conservative Court of Criminal Appeals, rejected the report's recommendation that Westley be given a new trial. The court, which has one of the lowest death penalty reversal rates in the country, also rejected requests for new trials in the sleeping lawyer cases, saying an attorney who slumbers at the defense table is not necessarily ineffective.

Leading in Executions

Texas has the busiest death penalty system in the Western world. Since 1982, the state has executed 214 inmates, including one last night. The next highest total is Virginia's 76. Only a few states have reached 25.

Texas law allows Bush to grant clemency to a death row prisoner only if a majority of the state's 18-member pardons board--currently made up of Bush appointees--recommends that he do so. Only once has that happened. On his own, Bush may grant a condemned inmate a one-time, 30-day reprieve. He has said he carefully reviews the case history of every prisoner who seeks a reprieve. But he has never granted one.

Bush has repeatedly voiced unflinching faith in the Texas system. "I'm confident that every person [who] 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," Bush declared on NBC's "Meet the Press" shortly after Ryan declared the Illinois moratorium.

Harris County, which includes Houston, is the epicenter of the death penalty in Texas. No jurisdiction in America imposes more death sentences. If Harris County had a death row, it would be bigger than the death rows in 29 states.

And it was there that the attorney for Calvin Burdine slept in court. Convicted in 1984 of fatally stabbing a former roommate during a burglary, Burdine, now 47, was sentenced to death in Houston. His case is now before the New Orleans-based U.S. Court of Appeals for the 5th Circuit, which includes Texas. Burdine's appellate attorneys say trial lawyer Cannon, now deceased, did such an atrocious job that it amounted to "ineffective assistance of counsel," a constitutional violation.

Although the Texas attorney general's office does not defend Cannon's sleeping, it wants Burdine to be executed anyway.

As for the napping, "I saw it happen a lot," the trial judge's clerk testified at a 1995 appellate hearing, recalling that Cannon, who had no co-counsel, "was asleep for long periods of time during the questioning of witnesses." Three trial jurors who testified at the hearing said Cannon, who was in his mid-sixties when he represented Burdine, did most of his "nodding off" in the afternoons, following lunch.

"As soon as the prosecutor would get on maybe a long spiel of talk for a while, [the sleeping] would start," one of the jurors said. A court administrator recalled being approached outside the courtroom by the prosecutor, who warned that Cannon was incompetent and should not be assigned to any more death penalty trials.

In an argument typical in such cases, Burdine's appellate attorneys contend that Cannon's inattention ruined any chance Burdine had of being acquitted or sentenced to life in prison. For example, they cite highly incriminating hearsay testimony and other damaging statements that reached the jury with no objection from Cannon. In death penalty cases in the United States, no defendant may be sentenced to death unless a jury decides it is warranted.

The Sixth Amendment entitles a defendant to "the assistance of counsel" at a trial, and the U.S. Supreme Court has said that such assistance must not be "ineffective." But in a 1984 case, Strickland v. Washington, the court ruled that when an appeals court weighs a claim like Burdine's, it must start with a "strong presumption" that the trial lawyer's conduct was reasonable and require the appellant to prove otherwise. Even when an appellant makes that case, he must convince the appeals court that if not for the attorney's inadequate work, the outcome of the trial most likely would have been different.

Citing the tough Strickland standard, Texas's Court of Criminal Appeals affirmed Burdine's death sentence in 1995. But a U.S. District Court judge disagreed last September and ordered a new trial.

Asked about Burdine's case during a March 2 campaign debate in Los Angeles, Bush chuckled when the moderator used the phrase "sleeping lawyers." Then Bush referred to the federal judge's new-trial order as evidence that the death penalty process is fair. "The system worked in that case," he said. But the day after the debate, the 5th Circuit stayed the new-trial order at Texas's request, keeping Burdine on death row while it reviews the case.

"It's inexplicable why the attorney general's office would want to uphold a death sentence in a case where the record is as outrageous as this," said Mandy Welch, one of Burdine's appellate lawyers.

Burdine's case is just one of several involving sleeping trial lawyers in which Texas has pushed for executions, citing the Strickland rule. "We don't in any way condone sleeping during trials, and we're never going to do anything to defend that conduct," said Shane Phelps, Texas's deputy attorney general for criminal matters. "But there are [legal] standards by which we measure ineffectiveness of counsel. Those are the rules that we're supposed to play by."

As in Burdine's case, the state argues that George Edward McFarland should be executed despite the performance of his lead trial attorney.

McFarland, now 39, was charged in the 1991 robbery-shooting of a Houston grocer. McFarland's family hired lawyer John Benn, who was then in his early seventies. Benn had not represented a capital defendant in at least 18 years. The trial judge, doubting Benn's stamina, appointed lawyer Sanford Melamed to assist him. Melamed had been practicing law for 13 years, but had never been in a death penalty case.

Benn, who has since died, seemed detached from the case from the start, Melamed said in an interview. He said he and Benn barely communicated before the August 1992 trial. At the trial, Benn was "out of it," napping for long stretches, Melamed said.

"It grew worse as the days wore on," he recalled. "Benn's physical appearance also seemed to deteriorate. . . . I can remember days where it appeared that he had missed half his shave in the morning." A juror later said Benn's sleeping was "so blatant and disgusting that it was the subject of conversation within the jury panel a couple of times."

Early in the trial, the bailiff, seated near the defense table, kicked Benn's chair from time to time, but eventually gave up trying to keep him awake. "I also stopped making any attempt to keep Benn awake," said Melamed. Instead, he focused on trying to competently defend the case, but was hampered by inexperience, he said.

When the Court of Criminal Appeals, citing the Strickland standard, rejected McFarland's "ineffective assistance of counsel" claim in 1996, then-Judge Charles Baird dissented. "In my view," he wrote, "a sleeping attorney is no attorney at all."

Defense Slept Again

The first execution of Bush's tenure occurred two weeks after he was sworn in. The 12th execution under his watch took place nine months later, on Sept. 19, 1995. The inmate, Carl Johnson, 40, had been on death row for 16 years since a Houston jury convicted him of fatally shooting a security guard during a food store holdup. Johnson was less than ably represented at his 1979 trial by Calvin Burdine's future lawyer, Joe Cannon. Same story: Cannon slept.

In an interview, David R. Dow, a University of Houston law professor who took over Johnson's appeal in 1988, recalled being aghast as he read the trial transcript.

"It was like there was nobody in the room for Johnson," said Dow, who was thwarted by the Strickland rule in trying to save Johnson's life. He noted that the transcript "goes on for pages and pages, and there's not a whisper from anyone representing him."

Cannon's court-appointed co-counsel in the trial, Philip Scardino, was two years out of law school. "It was frightening, the whole experience," Scardino said recently. "All I could do was nudge him sometimes and try to wake him up."

Like Melamed, Scardino said he eventually asserted himself in his client's trial and did his best, but he was a novice. Cannon, on the other hand, had been practicing law since 1950. Today, two years after his death, he remains a courthouse legend in Harris County, which does not have a public defender office. By Dow's count, a dozen of Cannon's indigent clients went to death row in a span of about 10 years, before judges stopped assigning him to capital cases in the late 1980s. Most of those former Cannon clients have been executed in the last decade, Dow said. Of those still alive, at least one besides Burdine is seeking a new trial based on Cannon's snoozing.

Until the mid-1990s, lawyers in most of Texas's 254 counties needed no special qualifications to be appointed to death penalty cases. In 1995, however, the state's nine judicial districts began drafting standards for such lawyers. Harris County, meanwhile, adopted its own rules, requiring lawyers to attend a seminar on death penalty law and pass a certification test before being assigned to capital defendants.

The county's chief judge, George H. Godwin, said indigent capital defendants in his courthouse are "excellently represented" by those certified lawyers.

But he added: "I do not, and will not, defend some of the practices of years ago. There were many instances of bad lawyers, and even bad judges."

Partisan Patronage

Texas's 400-plus trial judges run in partisan, often hard-fought campaigns for their four-year terms. Advocates for indigent defendants contend that in courthouses across the state, judges frequently dispense court-paid cases--including capital cases--as a form of patronage to lawyers who help them politically. Bush, they say, has blocked reform of the system, also for political reasons.

The case of death row inmate Henry Watkins Skinner is an extreme example of cronyism in the appointment process, according to Skinner's appellate attorney.

Skinner, now 38, went on trial in a small Texas Panhandle city in 1995, charged with strangling his girlfriend and fatally stabbing her two grown sons. The judge, M. Kent Sims, appointed a longtime political friend, lawyer Harold Lee Comer, to defend Skinner. Comer had been the local district attorney before resigning in 1992 amid an investigation of his handling of seized drug money. After leaving office, he pleaded guilty to a misdemeanor in a deal that allowed him to keep his law license.

Comer had twice personally prosecuted Skinner for other crimes, which created a potential conflict for him in defending Skinner. State law required the judge to hold a hearing on the question, then give Skinner the option of a new lawyer if it became clear in the hearing that Comer had a conflict. But according to the trial record, Sims, who was aware of Comer's history with Skinner, did not hold such a hearing.

Sims later approved $86,000 in legal fees for Comer's work in the case, one of the biggest sums ever paid to a court-appointed attorney in Texas. At the time, Comer was in debt to the Internal Revenue Service for about the same amount, according to court documents.

In an interview, Comer said the fee and his debt "had nothing to do with one another." Although "there are a lot of lawyers in capital cases who are incompetent," Comer said, he is not one of them. Sims, who is no longer a judge, also has denied any impropriety.

The bill Bush vetoed last year would have given county officials control over the appointment process. Supporters said the measure was meant to promote the creation of independent appointment commissions, if not public defender offices.

But Bush, agreeing with judges who lobbied against the bill, said it "inappropriately takes appointment authority away from judges, who are better able to assess the quality of legal representation."

Houston lawyer Ron Mock said he quit seeking most appointed cases--and swore off all appointed capital cases--in the early 1990s. "I just don't kiss the judges' asses anymore," he said. "I don't have to bring doughnuts to the courthouse for all the staff anymore." But Mock was a regular in death penalty cases in the 1980s. He said "about 16 or 17" of his indigent clients went to death row, and "more than five" have been executed.

Anthony Westley got Mock as his attorney. Westley and an acquaintance, John Dale Henry, were charged in the 1984 robbery of a Houston bait-and-tackle shop. One of them fired the .22-caliber bullet that killed the owner. Then they fled, leaving just one witness, a clerk. Henry went on trial first. The evidence in Henry's trial, including the clerk's testimony, suggested Henry was the robber with the .22-caliber pistol, with Westley carrying a different gun. The prosecutor told jurors that all signs pointed to Henry as the victim's killer. But Henry was not sentenced to death.

Five months later, at Westley's trial, a different prosecutor gave the case a new slant, tailoring the presentation of evidence, and eliciting testimony from the clerk in a way that pointed to Westley as the robber who fired the fatal shot. Westley was sentenced to death. "I did the best I could for him," Mock recalled in an interview.

Except he did not take the basic step of attending Henry's trial or reading a transcript for a preview of the state's case against Westley. Had he done so, a judicial report later concluded, he would have been well-equipped to undermine the spin that Westley's prosecutor put on the crime. That was just one of many mistakes Mock made in the case, according to a 100-page report by a court-appointed special master, Houston lawyer Brian Wice. Wice reviewed the case in minute detail as part of Westley's appeal. He wrote that Mock's preparation for Westley trial was so lax, and his performance in court so inept, that "a breakdown of the adversarial process" occurred.

"Brian Wice is an [expletive], and you can quote me," Mock said recently.

The Court of Criminal Appeals rejected the report's conclusion that Westley deserved a new trial. The 5th Circuit appeals court also affirmed the death sentence, with Judge Harold R. DeMoss Jr. dissenting. "If [Wice's] findings in this case do not satisfy the 'ineffectiveness' and 'prejudice' prongs of Strickland," DeMoss wrote, "then in my view, there is no such animal as 'ineffective counsel' and we should stop talking as if there is."

Westley was 36 when he was put to death on May 15, 1997, the 30th execution of Bush's tenure.



 

EXECUTION ERRORS


Spotlight On Death Penalty

By William Claiborne and Paul Duggan
Washington Post Staff Writers
Sunday , June 18, 2000 ; A01

CHICAGO –– When Gov. George Ryan (R) announced on Jan. 31 that he was imposing a moratorium on executions in Illinois, little did he know he was igniting a national debate on capital punishment unsurpassed in intensity since the U.S. Supreme Court allowed reinstatement of the death penalty in 1976.

The surprise move by Ryan, a longtime death penalty supporter, came after the freeing of 13 wrongfully condemned inmates in Illinois in the past 13 years and a series of Chicago Tribune stories last year exposing inequities in the state's capital punishment system. In an interview Thursday, Ryan said he anticipated some local reaction to the moratorium but had "no idea it would grow into the national prominence that it has."

If this were a different time on the political calendar, Ryan's decision might have drawn nationwide attention for a while, then faded from the public consciousness. In a presidential election year, however, a prominent GOP governor's doubts about the reliability of the death penalty system have placed the long-dormant issue on the national agenda and energized a once-stalled abolitionist movement.

Ryan had barely finished his moratorium announcement when attention shifted to his political friend in Texas, George W. Bush, the presumptive Republican presidential nominee and the governor of the nation's leading execution state. Bush, a strong advocate of capital punishment, replied that Texas's system had none of the problems found in Illinois--a declaration of faith in the death penalty that has led to sustained national news coverage of the capital punishment process in Bush's state.

With the issue suddenly thrust in the public's face, death penalty opponents sense momentum beginning to shift their way after years of laboring to change what opinion polls have long shown: that most Americans support capital punishment.

Since Ryan's announcement, New Hampshire's legislature has voted to abolish the death penalty, a move vetoed by that state's governor, a Democrat; religious leaders in California have called for a moratorium despite the opposition of Gov. Gray Davis (D), a death penalty supporter; and moratoriums have been proposed in at least six other state legislatures, including Maryland's. In some states, ballot campaigns are underway to abolish capital punishment.

Meanwhile, according to the Maryland-based Quixote Center, a leader in the anti-death penalty movement, at least 20 local governing bodies in eight death penalty states have passed resolutions calling for moratoriums. That includes the governments in Montgomery and Prince George's counties and in Baltimore, the center said.

And in Congress, for the first time in 10 years, a bipartisan push has begun for new legal safeguards to ensure that innocent people are not executed. In the past, death penalty discussions on Capitol Hill usually concerned proposals to toughen the federal capital punishment law and hasten the appeals process.

"So much is happening in so many places now, it's hard to say what's going to happen next," said Diann Rust-Tierney, director of the Capital Punishment Project for the American Civil Liberties Union. "Concern is bubbling up all over the country."

With no Supreme Court justice fundamentally opposed to capital punishment, anti-death penalty activists hold little hope for a constitutional ban on executions in the foreseeable future. Instead, for years, they have focused their efforts on swaying public opinion against executions, hoping that legislators would respond by weakening or abolishing the death penalty laws on the books in 38 states.

A Gallup poll in February found that 66 percent of Americans support capital punishment, still a solid majority, but down from 80 percent in 1994.

Robert Pambianco, the chief policy counsel for the pro-death penalty Washington Legal Foundation, noted that most Americans still strongly back the use of executions in heinous murder cases. Yet he conceded that death penalty opponents have been "somewhat successful in shifting the terms of debate" in recent months.

"It's a very clever effort," Pambianco said. "But despite all the hype, there is no evidence that innocent people are being put to death. And there is no evidence that public support for the death penalty is weakening."

But Rust-Tierney sees much "good news" in the current debate. In the recent past, she said, "people were running for office in Florida holding up pictures of prisoners they wanted to execute. Now we're finally to the point where the debate is more sophisticated."

Despite the growing debate, the pace of executions nationwide has not slowed. In Texas, where 134 prisoners have been put to death since Bush took office in 1995, the case of condemned inmate Gary Graham, who claims to be innocent, has attracted wide attention in the last week. In the same period--on Monday, Wednesday and Thursday--three other Texas death row prisoners were given lethal injections.

In Oregon, a ballot campaign has begun for a state constitutional amendment that would ban capital punishment and require life prison terms in certain murder cases. In California, where more than 560 inmates are on death row, the most in the nation, the issue has not resulted in political action. But it is getting more attention than it has in years.

One of the state's most prominent religious leaders, Roman Catholic Cardinal Roger Mahoney of the Archdiocese of Los Angeles, recently called for a moratorium on executions. And earlier this year, the liberal-leaning governments of San Francisco and Berkeley adopted moratorium resolutions.

But Davis, an ardent supporter of capital punishment, has not budged.

"The governor feels very comfortable with his position on the death penalty," said Garry South, a political adviser to Davis. "The bottom line is that there is solid support for this in California. The debate is over in this state."

In Illinois, Ryan said in an interview that he still believes the death penalty is a "a proper societal response" to some murders. But he said he could not continue to permit executions without first reforming a criminal justice system that allows convictions of capital defendants represented by incompetent lawyers, with testimony from unreliable jailhouse informants and with tainted evidence.

Last week, a Columbia University law school study reported that nationally, two-thirds of death sentences from 1973 to 1995 were reversed on appeal because of errors.

Ryan said he was deeply troubled by Illinois's "shameful record of convicting innocent people and putting them on death row." The state has 161 inmates on death row and has carried out 12 executions since the reinstatement of capital punishment.

Four years before Ryan's moratorium announcement, the wheels that would drive this year's contentious debate were set in motion with the first of a series of sensational Illinois criminal cases in which men convicted of murder and sent to death row were exonerated by DNA testing or other conclusive evidence of their innocence.

The first of these was Rolando Cruz, who in two separate trials was convicted and sentenced to die for the rape and murder of a 10-year-old girl despite the fact that another man had confessed that he alone had committed the crime. In 1995, DNA tests excluded Cruz as the perpetrator and implicated the other man. Cruz was released after 10 years on death row.

Last year, Anthony Porter, who spent 15 years on death row and at one point came within two days of being executed, was released from prison after journalism students at Northwestern University uncovered evidence that was used to prove his innocence. Ryan said he was strongly influenced by that case, describing Porter as an "easy target" because he had a trial lawyer of questionable competence.

Between the Cruz and Porter cases, there was a flurry of high-profile controversies in which Illinois murder defendants who had been sentenced to die were exonerated and released from death row. In some cases, police misconduct--including torturing defendants to extract confessions and coercing witnesses into falsely identifying suspects--was responsible for the vacated convictions.

"Once a couple of these innocent guys got off and the public began to get a little nervous about improprieties in some cases, a market began to develop for wrongfully convicted defendants," said Lawrence C. Marshall, legal director of Northwestern University's Center on Wrongful Convictions.

Lawyers who previously were quick to dismiss claims of innocence as mere jailhouse rants began to take on capital appeals, Marshall said. Journalists began digging more thoroughly into questionable convictions. Legislators began considering laws making exculpatory evidence more accessible to inmates appealing their convictions. And even judges and prosecutors began to scrutinize police evidence-gathering procedures in capital cases more closely.

"Until then, it was, 'Oh, those crazies are at it again,' " Marshall said, referring to advocates for a death penalty moratorium and reform of capital punishment laws.

These advocates agree that a significant factor in stimulating the death penalty debate has been a shift toward the "innocence strategy" in challenging capital punishment and the increased attention that is being given to death row inmates who are exonerated while awaiting execution.

Previous national debates over the death penalty had centered primarily on questions about the morality of the state putting people to death, and whether executions were a form of cruel and unusual punishment.

Ironically, using claims of innocence as a tactic to oppose capital punishment was considered controversial among many death penalty opponents because they feared it might be seen as legitimizing executions in cases of clearly irrefutable guilt.

Marshall said that once the news media began focusing on incidences of convicted murder defendants being exonerated and released from death row, politicians who may have had qualms about capital punishment, but dared not publicly reveal them because of public opinion favoring the death penalty, began to realize that perhaps speaking out would not be political suicide after all.

Ryan said he should not have been surprised by the growing death penalty debate sparked by his moratorium announcement and fueled by Bush's presidential campaign.

"I think most people in the country feel that we need to [eliminate the possibility] of actual innocence before we execute someone," he said, "and I'm one of them."

Claiborne reported from Chicago, Duggan from Texas. Staff writer Rene Sanchez in California contributed to this report.

 © 2000 The Washington Post Company