- The Washington Times - Thursday, July 6, 2000

AUSTIN, Texas Texas holds the dubious distinction of being the nation's leader in executions, but the road from conviction to the death chamber is as long as a West Texas mile.

That road takes all convicts through an appellate system that includes 23 judges, a taxpayer-funded investigation and an appeals process that Attorney General John Cornyn describes as "exhaustive."

"Super due process," he called it, adding, "No one has identified anyone here who was wrongfully convicted and executed."

Not that death-penalty opponents haven't searched for the innocent convict. The Texas criminal justice system is besieged by opponents as studies find instances of sleeping and intoxicated defense attorneys and flimsy evidence in capital punishment cases.

Following the release of one media expose, Illinois Gov. George Ryan halted the process in his state, where 13 inmates have been executed since 1987. That's not likely here, at least as long as the current administration holds sway.

Mr. Cornyn's office has assembled a rebuttal of some of the findings of the media, taking apart some of the reports case by case. The attorney general said many of the recent media reports are relying on "disinformation" coming from "someone who is not just mistaken but actively disseminating an erroneous agenda."

Among his points:

• Death-row inmates have more appeals and freer access to the justice system than other convicted people. "If anything, extra scrutiny means they are getting more justice, not less," Mr. Cornyn said.

• The state's three separate appeals processes for death-penalty cases take an average of 11 years, one of the longest in the United States.

• Indigent inmates on death row are represented by three separate court-appointed lawyers one for each appellate court.

• In addition to the judicial review, inmates can appeal to the governor, who can grant one 30-day reprieve, as Texas Gov. George W. Bush did last month in the case of Ricky McGinn, convicted of killing his stepdaughter.

It is a system that, while not foolproof, makes a strident effort for legal certitude. Mr. Cornyn pointed to the 31 percent of cases that have been overturned as proof that the system can and does find mistakes.

"In addition to a high burden of proof," Mr. Cornyn said, "there are two other questions that must be answered unanimously for the death penalty. One, is the individual likely to commit again? And two, are there any mitigating factors that would make a life sentence more appropriate?"

These questions are called "special issues" and must be answered by all 12 jurors before a death sentence is handed down. There is a third question as well: Was the defendant aware that the situation surrounding the crime could result in murder?

The ultimate punishment

Sondra Pirkle was part of a Midland, Texas, jury that placed Michael Blair on death row in 1994 for abducting and murdering a 7-year-old girl. She considered the issues and is sure of her verdict: Blair committed capital murder.

"I don't like the death sentence, but when we saw all this evidence …," she says, her voice rising defensively. "They tried to rehab him, but he caused trouble even in prison."

Jurors are told before deliberating that they can hand down a life sentence in death-penalty cases, which means that 40 years will pass before the convict can apply for parole.

"I just never wanted there to be a chance for this man to be on the street again," Miss Pirkle said.

Texas juries have doled out 222 death sentences since the state revived the death penalty in 1982. Under Mr. Bush's governorship, which began in 1995, 137 inmates have been executed.

Of those executed, 68 have asked for clemency, which must be granted first by the 18-member Board of Pardons and Parole, a panel composed of Bush appointees. Clemency has been given twice during Mr. Bush's tenure.

The governor has the legal authority to commute a death sentence to convert it into life in prison only on the recommendation of the parole board. The only independent authority he wields in executions is to order a one-time, 30-day delay.

The parole board deals with thousands of cases each year, weighing the risks of an inmate's release against state laws and the fundamentals of justice: in other words, has a convict paid his or her debt?

In death-penalty cases, the board can vote to commute a death sentence to life imprisonment, or can give the convict a 120-day reprieve or a pardon.

"If I vote for clemency, that doesn't mean I think the person is innocent," said Paddy Burwell, a 68-year-old rancher and a board member. "I pay attention to what kind of [legal] procedure they went through."

Johnny Sutton, criminal justice policy adviser to Mr. Bush, noted that in addition to numerous reviews and defense attorneys appointed to each case, the convict also gets $25,000 to use for an appeals investigation.

The case also gets the personal attention of Mr. Bush.

"The governor knows what each case is about," Mr. Sutton said. "He is given summarized presentations from staff lawyers, videos, photos. And he asks two basic questions: Is there any question of guilt, and did this person have full access to the courts?"

'Morally repugnant'

Texas has become the national focus of the death-penalty debate, in part because of Mr. Bush's bid for the presidency. Many death-penalty opponents are focusing their attacks on the governor himself, questioning his call for "compassionate conservatism."

"Bush is willing to sacrifice lives to become president," asserted Lily Hughes, a 27-year-old Austin protester, just hours before Gary Graham, convicted of killing a man outside a Houston supermarket, was executed on June 22.

She and a dozen other young people marched on the governor's mansion, outside the adjacent Capitol building and in front of the Attorney General's Office, firmly convinced of Graham's innocence.

Mr. Sutton vigorously addressed the political implications of those attacks. "It is morally repugnant to have politics play any role in this," he said. "Texas is a state that carries out the law. In other states, the politicians can pound their chests and talk about how serious they are about crime. To us, politics should never enter into this. And it won't."

Intense scrutiny has opened the door to lapses; though Mr. Bush usually carries a serious demeanor when speaking of the death penalty, in a televised debate in California in March, he chuckled when a questioner repeated reports that a defendant's attorney in a Texas capital murder case had nodded off during a trial.

Mr. Bush is also feeling pressure in his own state to do something, anything.

"There are too many reports of obviously inept defense work going on for anybody to feel comfortable with this," said Austin defense lawyer David Sheppard. He said the state's administration of capital punishment has become "freakish."

The dispute is, at its core, a fight over values and moral interpretation of punishment: Do we have the right to opt for such a revenge or to impose such a consequence?

Questionable defense?

At least 90 percent of death-penalty cases nationwide are defended by court appointment. Understandably, the recent deluge of criticism of the defense bench has angered some lawyers.

"It's very easy to point the finger at a court-appointed attorney," said Matt Goeller, a former prosecutor who is now one of seven lawyers on the death-penalty representation list in Collin County, Texas.

"There's always a stigma attached to 'court appointed,' " Mr. Goeller said. "Now, lawyers have come under attack, and in some cases rightly so. But the majority do a great job."

Lawyer Steve Miears lost his practice altogether when he defended death-row inmate Blair in 1994. It wasn't about money, he said. It was about time.

"We worked from 9 in the morning to 3 a.m. some days," said Mr. Miears, who now has a practice in rural Fannin County in north Texas.

In Harris County, where Houston is located and where more people are on death row than in any other county in the nation, any capital case defense attorney has to take a 20-hour course and a test each year in order to be eligible for appointments.

"I think we have some of the best criminal defense lawyers in the country in Houston," said Catherine Burnett, associate dean of the South Texas College of Law in Houston. "Many have undertaken criminal defense work even when the money comes out of their pocket because they believe its the right thing to do."

But in rural areas, finding a qualified defense lawyer is not so easy. Murder is generally a once-a-decade occurrence, if that, in such places.

While the state has a team of prosecutors to help convict, there is no provision for imported assistance at the defense level.

"Out there, the only thing required to defend someone from the death penalty is that the attorney is breathing," said Austin defense lawyer Roy Greenwood.

Court-appointed defenders are paid out of a combination of county and state funds. In most areas of the state, each lawyer and state law requires that two be appointed to defend a person from death receives a minimum of $500 a day.

Pat McDowell, an administrative judge in one of the state's nine judicial districts, said no judge would risk the reversal of a case based on improper finances being allocated for the defense.

"I don't know of any judges who have told a defense lawyer, 'No, you can't do this,' " said Mr. McDowell, whose district includes Dallas. "As long as it is regarded as reasonable, you won't see any gambles in capital cases."

When errors are made, the appeals process steps in.

In Texas, state district judges overturn 35 percent of capital cases, although the cases can be overturned at any judicial level.

There have been no reversals in Texas in the past five years in which the defendant was found not guilty during a second trial.

Several inmates have received a death sentence more than once. Charles Edward Smith, a Pecos County killer, was tried three times; each time the verdict was death.

Opponents of the death penalty often point to the supposed prevalence of wrongful death penalty convictions: 87 condemned persons in the United States have had their convictions overturned by exonerating evidence.

Add to this a perception that despite the many judges, lawyers and officials who view a case, the appellate process in Texas is much too stringent.

"These are standards that are far too high," said one lawyer who asked not to be named. "The courts are upholding cases that even a layman could see were flawed."

In Texas, the quest for the truth the cornerstone of the justice system is tempered by a realistic knowledge that there is no such thing as a perfect trial.

"I would say anything that involves human beings will never reach perfection," Mr. Cornyn said. "But criminal defendants are not entitled to a perfect trial, they are entitled to a fair trial. Our system does provide that."

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