CAMERON TODD WILLINGHAM CASE: 4 'THE WRONG MAN'; A CLASSIC ARTICLE BY ALAN BERLOW PUBLISHED A DECADE AGO WHICH IS EXTREMELY RELEVANT TODAY; PART FOUR;

"THIRD, ROUTINE DNA TESTING MUST BE MADE AVAILABLE TO INMATES WHO BELIEVE THAT IT WILL DEMONSTRATE THEIR INNOCENCE. AND BETTER PROCEDURES ARE NEEDED TO ENSURE BOTH THAT DNA AND OTHER EVIDENCE IS PRESERVED AS LONG AS A PERSON IS INCARCERATED AND THAT THE DEFENSE IS GIVEN FULL ACCESS TO IT."

ALAN BERLOW: THE ATLANTIC MONTHLY;

----------------------------------------------------------------------------------

Background; In November 1999, the Atlantic Monthly published a four-part article on capital punishment which bore a title which takes great significance with revelations that Cameron Todd Willingham was wrongfully executed: "The Wrong Man."

A preamble to the series noted that: "The prospect that innocent people will be executed in America is horrifyingly likely, the author argues in this unsparing report on the criminal-justice system. Police officers and prosecutors have suppressed evidence. Many public defenders are incompetent. And the appeals process is becoming more difficult."

The article - a classic in death penalty literature - is equally, if not more valid in 2009, a decade after it was first published. The series is a testament to Alan Berlow's powerful journalism. Berlow was honored for excellence in coverage of capital punishment by the Death Penalty Information Centre at the Eight Annual Thurgood Marshall Awards. The article is also a testament the Atlantic Monthly's commitment to exploring this crucial, truly life and death issue. The spirit of the article is reflected in the Quote attributed to Voltaire which accompanies it: "It is better to risk saving a guilty person than to condemn an innocent one."

-------------------------------------------------------------------------------


PART FOUR: Speeding Up Executions

"MANY of the more than eighty prisoners who have been freed from death row over the past two decades are alive today only because their executions were stayed long enough for the truth about their cases to emerge," this part begins.

"Some had to wait fifteen or twenty years," it continues.

"Nevertheless, the drumbeat for speedier executions continues. The Supreme Court, Congress, and many states have moved during the past decade to expedite executions by making it more difficult for defendants to have their appeals heard. States have, for example, placed stringent time limits on appeals. In Virginia a person convicted of murder is given twenty-one days after conviction to present new evidence of innocence. Suffice it to say that new evidence rarely, if ever, materializes in a capital case during the first three weeks following conviction.

In 1995 Congress weighed in on the need for speedier executions when it eliminated the $20 million annual budget for Post-Conviction Defender Organizations, which had provided some of the most sophisticated and effective counsel for death-row inmates in twenty death-penalty states. The following year Congress passed the Antiterrorism and Effective Death Penalty Act, slapping a one-year statute of limitations on the filing of habeas corpus petitions in capital cases. Until then Americans had lived quite comfortably with the notion that there should be no time limit on habeas appeals -- that the right to be free from illegal restraint never expired.

The radical revision of habeas law was sold to the House of Representatives by Henry Hyde, the chairman of the Judiciary Committee, as the "Holy Grail" of criminal-justice reform, a long-sought change that would address what he called "the absurdity, the obscenity" of "endless appeals" in death-penalty cases. The average time between sentencing and execution is a little over eight years. "Eight years is ridiculous, fifteen and seventeen years even more so," Hyde proclaimed during House debate on the act, insisting that such delays "make a mockery of the law." Orrin Hatch, the chairman of the Senate Judiciary Committee, declared that "support for an end to frivolous death-penalty appeals is the most authentic evidence of an elected official's support for the death penalty." Hyde and Hatch directed their spleen at the pariahs on death row, but 99 percent of habeas petitions relate to noncapital cases. Still, this fundamental right has now been circumscribed for everyone. As for the one percent of habeas petitions filed by death-row inmates, neither state nor federal courts have found them entirely "frivolous." On the contrary: in nearly two thirds of the cases courts have found violations so serious as to warrant overturning the convictions.

Will the new one-year statute of limitations increase the likelihood that innocent people are executed? Congressman Bill McCollum, of Florida, a leading advocate of capital punishment and one of the authors of the anti-terrorism bill, thinks not. "It simply speeds up the process of execution where someone's truly guilty," McCollum says, adding that there is no time limit on filing a claim of innocence. He would like to see the time between sentencing and execution reduced from the current national average of eight years to four to six years. But in the past, evidence of innocence has taken seven, twelve, fifteen, or more years to surface. McCollum insists that speeding up the process will actually benefit death-row inmates, because the expert resources brought to bear just before an execution will now come into play in the fourth year rather than the fourteenth. That may be wishful thinking. And it clearly doesn't apply to the cases whose outcomes have nothing to do with the typical legal actions brought on behalf of the condemned -- the cases that turn on pure serendipity, that need time for the real murderer to step forward and confess, or time for police officers or witnesses who perjured themselves to feel safe in talking. Time may heal all wounds, but it won't do much for a lethal injection.

Robert E. Morin, who got Kirk Bloodsworth released from prison, told a conference at American University in 1995 that speeding up executions will result in the execution of innocent people. "It's not a question of increasing the probability; it's going to happen," Morin says. "It's just a matter of when, and when we discover their innocence." Morin, now a superior-court judge in the District of Columbia, said that "anybody who wants to compress the time" should "sit down and have a conversation with Mr. Bloodsworth and his family about why you wanted to shorten the period of time he had to work on his case."

For its part, the Supreme Court has sought in recent years to give maximum discretion to state-court constitutional determinations. It has, for example, expanded the so-called harmless-error doctrine, making it easier for states to uphold convictions regardless of whether errors or prosecutorial misconduct contributed to an unfair trial. And under Chief Justice William Rehnquist it has seized on every available opportunity to limit federal-court review of state habeas rulings. A provision of the new anti-terrorism law limiting federal habeas review to cases in which a state-court decision "involved an unreasonable application of clearly established federal law" has already been narrowly interpreted by several of the most conservative circuit courts. And if the Supreme Court follows their lead, says John Blume, a habeas expert and the director of the Cornell Death Penalty Project, "it would be impossible for a person to get federal habeas relief."

Where the Court is headed on claims of innocence is not at all clear. In January of 1993, in Herrera v. Collins, Rehnquist bemoaned "the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in death penalty cases" and dismissed the argument that "claims of actual innocence based on newly discovered evidence" provide a rationale for habeas relief. At the same time, the court's majority ruled that it would be unconstitutional to execute a defendant with "a truly persuasive demonstration of actual innocence made after trial." What a "truly persuasive" case would be, however, remains unclear, because the court has yet to identify one. Leonel Herrera's case was evidently not what the justices had in mind. He was executed three and a half months after the Supreme Court issued its ruling. His final words were "I am innocent, innocent, innocent.... Something very wrong is taking place tonight."

The Public-Opinion Factor

AS executions become increasingly common, the media seem to find them less and less newsworthy, and the public grows decidedly more blas� about them. (The five-hundredth execution since capital punishment was reinstated, in 1976, received a 141-word notice in the New York Times "National News Briefs" column.) Dozens of stories about innocent people wrongly condemned to death have provided entertaining fodder for TV newsmagazines, yet they've provoked little public outcry and few demands for compensation of victims or calls for action against police officers, prosecutors, and judges who perpetrate these miscarriages. Only a handful of states have addressed the need for preventive measures, such as better-funded defense services.

Unquestionably, support for the death penalty remains high -- the proportion in favor of it has ranged from 70 to 76 percent over the period 1982-1996, as against 38 percent in 1965 and 47 percent in 1970. It is these numbers that drive the debate on capital punishment. Nevertheless, when questioners suggest that the death penalty "has a built-in racism" or that "many people have been sentenced to death who have later been found innocent," support for capital punishment declines abruptly. In one survey 48 percent of respondents had "some doubts" or "serious doubts" when the race factor was introduced, and 58 percent expressed doubts when the possibility of innocence was introduced. Even in the states most strongly in favor of the death penalty support drops dramatically -- to anywhere from 50 to 61 percent, depending on the poll -- when the alternative of life imprisonment with absolutely no possibility of parole is mentioned to respondents.

Studies of capital juries buttress the idea that Americans are far less gung-ho about the death penalty than the polls suggest. Because capital juries are "death-qualified," one might expect the typical jury to be much more inclined to impose death than the public at large, of which approximately 25 percent opposes the death penalty under any circumstances. But a 1993 Justice Department study indicated that where death was an option, juries imposed it in only one out of eight cases. One reason for this is that almost all death-penalty states now offer life without parole as an option for jurors. Studies also show that in some cases jurors have been concerned about executing an innocent person; they have "lingering doubts" about the defendant's guilt, and although those doubts may not be strong enough to warrant letting the defendant go free, they forestall a vote for death.

Finally, unlike normal citizens responding to the latest sensational murder case on television, jurors are required to consider mitigating evidence in sentencing. Although the idea of a murderer is an abstraction to most of us, jurors must confront flesh-and-blood human beings. And the evidence suggests that when they get to know a defendant, when they learn the details of an individual case, many jurors find it difficult to take a person's life.

Building In Safeguards

ENGLAND'S experience might lead one to expect that public support for the death penalty would decline dramatically if it could be proved that an innocent person had been executed. Yet some death-penalty advocates believe, like Congressman Bill McCollum, that what they see as the remote possibility of executing an innocent person is no reason to abolish capital punishment. Others have argued that the occasional accidental execution of an innocent person is the price the country must pay to combat violent crime. William Kunkle, the Chicago prosecutor who both secured the death penalty for the serial killer John Wayne Gacy and brought the unsuccessful case against police officers and prosecutors for allegedly framing Rolando Cruz, argues that the execution of innocent people is inevitable. "Sooner or later it's going to happen," he says. "It comes with the territory. It is not humanly possible to design a system that is perfect. And if people are not prepared for the eventuality that human institutions are going to make mistakes, then they shouldn't support the death penalty, and they shouldn't elect legislators who support it."

Although it is undoubtedly impossible to design a perfect system, that hardly argues for tolerating the status quo. Nevertheless, the idea that this system is the best that human beings can design remains an article of faith among many prosecutors, death-penalty supporters, and citizens in general. William Otis, the former aide to President Bush, argues, "It goes back to first principles. It depends on what a person really believes about the nature, honesty, and legitimacy of government in this country. And a person who basically has faith in those things is more likely to believe that the death penalty is a permissible remedy than the person who doesn't."

But the first principles with which many of us grew up were designed to protect innocent and powerless individuals from an abusive and overweening government, whether federal or state. From that perspective there can be no greater offense by a state, and nothing more damaging to its legitimacy, than the execution of an innocent person. The fact that we are not able to guarantee that no innocent person will be executed remains the most powerful argument against the death penalty. If the government and we citizens want to continue executing men and women, we might at least take some steps to reduce the risk that the ultimate sanction will be imposed on innocent people. That won't be easy. In an environment in which defendants are typically presumed to be guilty, any legislator who tries to provide safeguards for the accused is certain to be attacked as "soft on crime." The problem is one not only of reclaiming some fundamental notions of fairness but also of building in new safeguards at virtually every stage of the criminal-justice process.

First, reforming the system might begin at the investigative level, where the police should be required to record, on either videotape or audiotape, both interrogations and confessions.

Second, serious efforts must be made to eliminate criminal abuses of law-enforcement power. Attorney General Janet Reno knows firsthand the kind of outrageous behavior that goes on in high-profile murder cases. In 1989, as a Florida district attorney, Reno was personally responsible for the release of James Richardson, the man who was sentenced to death for the murder of his seven children, when evidence emerged that police officers and prosecutors had framed him. As the nation's top judicial officer, Reno knows, particularly since Waco, how unwilling law-enforcement officers are to police their own. She should therefore appreciate the need to establish independent special prosecutors or inspectors general in every state to investigate and prosecute police, prosecutorial, and judicial misconduct.

Third, routine DNA testing must be made available to inmates who believe that it will demonstrate their innocence. And better procedures are needed to ensure both that DNA and other evidence is preserved as long as a person is incarcerated and that the defense is given full access to it.

Fourth, the use of jailhouse snitches, many of whom are known pathological liars, must be drastically curtailed. Such informant testimony should be inadmissible unless it is backed by corroborating evidence.

Fifth, better methods of judicial selection are needed to ensure an independent judiciary. Ultimately this means eliminating the election of judges and thus removing the blight of judges who not only take campaign contributions from the attorneys who try cases before them but also routinely place their own political and financial interests above the Bill of Rights.

Sixth, the American Bar Association should press for adoption by the states of a provision in the American Law Institute's "Model Penal Code" which is designed to minimize the risk of convicting and executing innocent people. The provision would prohibit a death sentence if the evidence, albeit sufficient to sustain a guilty verdict, "does not foreclose all doubt respecting the defendant's guilt." To date no state has adopted this "residual doubt" provision.

Seventh, whether an official's corruption, simple witness error, or the racism of an arresting officer led to wrongful imprisonment, the victims of such miscarriages should be compensated. Unfortunately, those who have been wrongfully sentenced find it nearly impossible to rid themselves of the taint of criminality, and tough-on-crime legislators don't seem terribly distressed about these victims of the system. Only fourteen states have statutory compensation for people who have been wrongfully incarcerated. Federal law provides a miserly $5,000, regardless of time served.

Eighth, and most important, the right to counsel and to due process must be given substance through the creation of adequately funded nationwide public-defender services. Both the existing systems of court-appointed counsel, which are rife with conflicts of interest, and the unconscionable contract systems that rely on low-bid attorneys have to go. In addition, states need to adopt and enforce reasonable standards for the appointment and performance of defense attorneys in capital cases, such as those proposed by the American Bar Association a decade ago. The Strickland decision's grant of immunity to incompetent lawyers should be overturned, and the Justice Department should facilitate this by joining the next viable Sixth Amendment challenge to go before the Supreme Court. The history of the Sixth Amendment since Gideon demonstrates that it is not enough to assert that everyone has a right to an attorney. Criminal defendants, and capital defendants especially, need attorneys who are well trained, experienced, and adequately paid.

Some outspoken death-penalty supporters who favored defunding the Post-Conviction Defender Organizations now say they favor funding post-conviction representation in capital cases. Others say they want to see competent counsel provided at the trial stage, in order to avoid unnecessary appeals and overturned convictions. But there's a catch: conservatives invariably want to consign the issue of spending to the states, which is where the Sixth Amendment has been moldering, a sort of discretionary constitutional right, since its adoption, in 1791.

How much should the states be spending to ensure equal protection for every U.S. citizen? Nobody really knows. Robert Spangenberg, the country's leading authority on indigent-defense programs, says the country spent about $1 billion on indigent defense in 1986, or about $200 per case -- a "totally inadequate" figure, he says. The quality of indigent defense varies state to state, from quite good to reprehensible. Spangenberg says that it would cost the State of Florida, to cite one example, about $25 million a year to properly handle its backlog of capital appeals alone. The state legislature has currently budgeted $6 million. Where the states will get the money to defend the rights of a constituency with no political power remains the big question. What is clearly needed is some sort of permanent funding mechanism that is not subject to annual budget skirmishes and political fashions. One idea is to make indigent defense a fixed percentage of some other annual budget, such as the prosecutor's budget -- which, in particular, would lock in the notion that fair representation is a sine qua non for both sides if justice is to be genuine. As a result of lawsuits that successfully challenged the constitutionality of programs that often provided defendants with unqualified or horribly overworked lawyers, several states and counties have been forced to increase indigent-defense spending and to adopt basic standards of competency for their public defenders. Most recently the State of Connecticut agreed to hire approximately eighty new attorneys and support-staff members for its public-defender system in response to a lawsuit brought by the American Civil Liberties Union. More challenges along these lines by, among others, the organized bar should be encouraged.

For its part, the organized bar shares responsibility for the fact that there are currently scores of people on death row without lawyers, and for the state of indigent defense in general. In 1982 the American Bar Association issued a report on what it called "the crisis in indigent defense funding," in which it advised, "We must be willing to put our money where our mouth is; we must be willing to make the constitutional mandate a reality." Seventeen years later there is little for which to thank the ABA. It does provide expert resources to law firms handling capital cases, and it funds its own Death Penalty Representation Project, which over the past eighteen months has enlisted forty-five law firms to defend death-row inmates without charge. But the project's director calls it little more than a "small Band-Aid on a gaping wound." The ABA has done a good job of documenting serious problems with the administration of the death penalty and the crisis in indigent defense. But the ABA, the largest voluntary professional association in the country, also represents one of the wealthiest and most privileged segments of American society. With a few notable exceptions, these generally well-informed professionals from one year to the next do little more than approve high-minded resolutions condemning the status quo that has been so good to them. If state and local bar associations were really serious about addressing these problems (and there's little evidence that they are), they might underwrite a model indigent-defense program or two, or a capital-representation office. If nothing else, they should be standing up for equal justice by lobbying their state legislators to find the money to finance public defenders at levels that don't make a mockery of the Sixth Amendment.

Finally, the Justice Department or a presidential commission should follow the example of Canada, and examine why our courts continue to sentence innocent people to death, and whether we have in fact executed innocent people. The steady accumulation of wrongful convictions and death sentences in the United States constitutes a prima facie case that we are dealing with widespread, systemic flaws in the administration of justice. Until those flaws are corrected, we should declare a moratorium on executions."

This part can be found at:

http://www.theatlantic.com/issues/99nov/9911wrongman4.htm

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM CASE 3 'THE WRONG MAN'; A CLASSIC ARTICLE BY ALAN BERLOW PUBLISHED A DECADE AGO WHICH IS EXTREMELY RELEVANT TODAY; PART THREE;

"ALMOST THIRTY-SEVEN YEARS AFTER GIDEON V. WAINRIGHT IT IS DIFFICULT TO ESCAPE THE UNPLEASANT CONCLUSION THAT THE FAILURE OF STATE AND LOCAL JURISDICTIONS TO PROVIDE ADEQUATE LEGAL REPRESENTATION IN CRIMINAL CASES IS ANYTHING OTHER THAN A DELIBERATE POLICY -- ONE THAT PROBABLY ARISES FROM A PERVASIVE BELIEF THAT MOST CRIMINAL DEFENDANTS ARE GUILTY AND THEREFORE UNWORTHY OF COMPETENT COUNSEL. THIS INATTENTION -- BY NOW A MATTER OF TACIT NATIONAL POLICY -- TO WHAT SHOULD BE A FUNDAMENTAL CONSTITUTIONAL RIGHT IS BOLSTERED BY A SELF-JUSTIFYING LOGIC THAT BECOMES ALMOST IRRESISTIBLE WHEN ONE CONSIDERS THE TANGIBLE "BENEFITS." BY FAILING TO FUND COUNSEL FOR INDIGENTS ADEQUATELY A STATE OR LOCALITY NOT ONLY SAVES AN ENORMOUS AMOUNT OF MONEY BUT ALSO MAKES MEANINGFUL DEFENSES DIFFICULT IF NOT IMPOSSIBLE, THUS EASING THE GOVERNMENT'S BURDEN IN WINNING CONVICTIONS AND IMPOSING DEATH SENTENCES, AND DIMINISHING THE LIKELIHOOD THAT HEINOUS ERRORS WILL EVER BE DISCOVERED."

ALAN BERLOW: THE ATLANTIC MONTHLY;

----------------------------------------------------------------------------------

Background; In November 1999, the Atlantic Monthly published a four-part article on capital punishment which bore a title which takes great significance with revelations that Cameron Todd Willingham was wrongfully executed: "The Wrong Man."

A preamble to the series noted that: "The prospect that innocent people will be executed in America is horrifyingly likely, the author argues in this unsparing report on the criminal-justice system. Police officers and prosecutors have suppressed evidence. Many public defenders are incompetent. And the appeals process is becoming more difficult."

The article - a classic in death penalty literature - is equally, if not more valid in 2009, a decade after it was first published. The series is a testament to Alan Berlow's powerful journalism. Berlow was honored for excellence in coverage of capital punishment by the Death Penalty Information Centre at the Eight Annual Thurgood Marshall Awards. The article is also a testament the Atlantic Monthly's commitment to exploring this crucial, truly life and death issue. The spirit of the article is reflected in the Quote attributed to Voltaire which accompanies it: "It is better to risk saving a guilty person than to condemn an innocent one."

-------------------------------------------------------------------------------

PART THREE: "How Much Justice Can You Afford?"

"NO doubt most judges, police officers, and prosecutors are committed to the principle that a defendant is innocent until proven guilty," this part begins.

"The single greatest threat to an innocent defendant, however, may be his or her own attorney," it continues.

"In Illinois, Gary Gauger was sentenced to die in 1994 for murdering his parents, after his well-paid attorneys failed to conduct a serious investigation into the prosecution's paper-thin case. Eventually Gauger was released and members of a Wisconsin motorcycle gang were indicted for the crime.

Perhaps Gauger was just unlucky. After all, anyone can hire a bad lawyer. The average capital defendant doesn't have the money to hire O. J. Simpson's "dream team." More likely than not, he has no money at all. At the very least, three fourths of state-prison inmates and half of federal-prison inmates have taxpayer-financed court-appointed counsel. The quality of this representation is questionable.

In its historic 1963 decision in Gideon v. Wainright the Supreme Court stated, "In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him." Since then the Court has ruled that in all criminal proceedings that carry prison sentences adequate counsel also means access to expert witnesses and investigative services. But how those rights are implemented has been left entirely to the states, and often such rights in fact belong only to those who can afford them.

Eighteen death-penalty states lack statewide public-defender organizations, and many of those that have them underfund them so seriously that lawyers end up handling huge caseloads that would be considered unconscionable, to say nothing of impractical, in the private sector. Most public defenders are so poorly paid that many talented lawyers tend to shy away from this sort of practice. Some jurisdictions award capital cases to the attorney making the lowest bid. In one Georgia county the low-bid public-contract attorney tried fourteen cases, entered a grand total of seven motions, and entered 262 guilty pleas for his court-assigned clients from 1993 to 1998. Other states randomly assign lawyers from a general list, a system that almost ensures that lawyers lacking appropriate qualifications will frequently be found. Aden Harrison Jr., a black man indicted for murder in Georgia, was assigned an eighty-three-year-old attorney who had been an imperial wizard of the Ku Klux Klan. Dennis Williams, one of the four men exonerated in 1996 with the help of Northwestern University students, was defended on a murder charge in Illinois by a lawyer who was simultaneously defending himself in disbarment proceedings. Federico Martinez-Macias was represented in Texas by a court-appointed attorney who failed to present witnesses, including an alibi witness who could have disputed the prosecutor's case. Martinez-Macias spent nine years on death row and came within two days of execution before a pro bono attorney in Washington, D.C., having thoroughly investigated his case, managed to demolish the state's evidence. In ruling that Martinez-Macias had been denied his constitutional right to counsel, the court noted that the defendant's trial attorney had been paid $11.84 an hour by the state and that "unfortunately, the justice system got only what it paid for."

In March of last year, on the thirty-fifth anniversary of the Gideon decision, Attorney General Janet Reno wrote in USA Today, "No prosecutor wants to prosecute someone whose defense counsel lacks the necessary skills and experience to put up a defense, and face the likelihood of having the conviction reversed on appeal." In the real world, however, one doesn't hear the National Association of Attorneys General making the case for better-funded defense lawyers, or complaining that indigents have been defended by law students, clerks, and lawyers with no courtroom or capital-defense experience. In Texas, where a state bar committee has estimated that defending a post-conviction capital client requires 400 to 900 hours of work, the Court of Criminal Appeals limits state-funded attorney compensation to 150 hours. When judges routinely reject defense requests for investigators or expert witnesses, prosecutors don't jump to their feet to object that this will make the proceeding unfair, even though they face no similar constraints on resources. Nor does one hear prosecutors carping about the lack of a level playing field in Mississippi, where attorneys are paid no more than $1,000, plus a small allowance for overhead, to try a capital case. (A private attorney defending a capital case would typically earn $100 to $500 an hour.) If these lawyers actually put in the hours needed to defend complex death-penalty cases, they would earn less than the minimum wage. Many don't put in the necessary time, and their clients pay the price.

Asked if they would favor a judicial system in which only the prosecution could present its case, most Americans would presumably be aghast. But in many courtrooms such ex parte proceedings are, for all intents and purposes, what happens. The adversary system simply doesn't exist. Convicted by Juries, Exonerated by Science found that a major cause of wrongful convictions was incompetent attorneys who neglected to examine the prosecution's forensic evidence or failed to have it tested. Nancy Gist, the director of the Bureau of Justice Assistance, which dispenses $1.7 billion a year to state and local criminal-justice systems, has described the quality of counsel in capital cases as "mostly abysmal." One innocent man spent eleven years on Georgia's death row because his lawyer failed to have a vital piece of evidence analyzed by a laboratory. In Kentucky an investigation by the Department of Public Advocacy found that 25 percent of death-row inmates had been represented at trial by attorneys who had since been disbarred or had resigned to avoid disbarment. A 1990 study found that 13 percent of the defendants executed in Louisiana had been represented by lawyers who had been disciplined, a rate sixty-eight times as great as that for the state bar as a whole. The pervasive inadequacy of defense counsel in capital cases was a major reason that the American Bar Association's House of Delegates overwhelmingly approved a 1997 resolution calling for a moratorium on executions. "In case after case," a report accompanying the resolution stated, "decisions about who will die and who will live turn not on the nature of the offense the defendant is charged with committing, but rather on the nature of the legal representation the defendant receives."

Death-penalty advocates are right to insist that the public should not be required to provide every capital defendant with a team of $400-an-hour lawyers. Nevertheless, no one seriously doubts that a defendant's prospects -- whether he is guilty or innocent -- will be improved by a skilled attorney. A study commissioned by the Texas Judicial Council in the mid-1980s showed that a defendant's chances of being convicted in a capital case were 28 percent higher if he was represented by court-appointed counsel than if he retained counsel. The study also showed that 55 percent of those who retained counsel but 79 percent of those with appointed counsel were sentenced to death. Walter Rowe, of George Washington University, says that for a defendant in state court the "unfortunate fact of life is, if you ain't got bucks, you're going to take it in the shorts." Rowe says he asks defendants who solicit his services as an expert witness, "How much justice can you afford?" "Numerous innocent people are presently incarcerated because of the inadequacy of their attorneys," he says.

"One Half Justice"

ALMOST thirty-seven years after Gideon v. Wainright it is difficult to escape the unpleasant conclusion that the failure of state and local jurisdictions to provide adequate legal representation in criminal cases is anything other than a deliberate policy -- one that probably arises from a pervasive belief that most criminal defendants are guilty and therefore unworthy of competent counsel. This inattention -- by now a matter of tacit national policy -- to what should be a fundamental constitutional right is bolstered by a self-justifying logic that becomes almost irresistible when one considers the tangible "benefits." By failing to fund counsel for indigents adequately a state or locality not only saves an enormous amount of money but also makes meaningful defenses difficult if not impossible, thus easing the government's burden in winning convictions and imposing death sentences, and diminishing the likelihood that heinous errors will ever be discovered. In providing counsel to the poor "we set our sights on the embarrassing target of mediocrity" and "halfway justice," Harold Clarke, the chief justice of Georgia, said in 1993. "To my way of thinking, one half justice must mean one half injustice, and one half injustice is no justice at all."

Public officials see themselves, of course, not as skimping on justice or constitutional rights but as conscientious guardians of the budget who are tough on crime and determined to provide law-enforcement authorities with the very best tools possible to get criminals off the streets. Death-penalty advocates avoid questions about the condemning of innocent people by focusing on the number of murderers never prosecuted or mistakenly freed and by asking "How many innocent people will die if we do not execute vicious murderers?" Most prosecutors I have interviewed seemed to accept as an article of faith that adequate legal resources are provided to capital defendants, even when those prosecutors hadn't a clue what the actual resources were in their respective states.

If a hospital assigned a cosmetic surgeon to perform a heart-bypass operation, the hospital would be held accountable when the patient died. But when states make a practice of appointing cosmetic attorneys to defend indigents, they declare that justice has been served, regardless of the outcome. Astonishingly, the Supreme Court has endorsed that position, ruling that jurisdictions appointing incompetent attorneys bear virtually no responsibility for the miscarriages that occur. "The government is not responsible for, and hence not able to prevent, attorney errors," the Supreme Court ruled in 1984 in Strickland v. Washington. Who, then, is responsible? According to the Supreme Court, apparently, the defendant is responsible. Under its landmark ruling state courts have typically found no violation of the Sixth Amendment, which guarantees the assistance of counsel in all criminal prosecutions, even when lawyers have been addicted to heroin or cocaine during a trial, have come to court drunk, have conducted no investigation of their clients' claims, or have been unable to cite a single relevant capital case. In one death-penalty case a lawyer presented no evidence during the penalty phase of a trial and made the following closing argument (quoted in its entirety): "You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say." The defendant was executed. In a Texas case in which the defense lawyer slept through most of his client's trial, the judge found no denial of due process. "The right to be heard," the Supreme Court ruled in 1932, in the famous Scottsboro Boys case, "would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." But the Texas court didn't think it essential that defense counsel hear the case, or even be conscious: "The Constitution doesn't say the lawyer has to be awake," the judge ruled.

How does the highest court in the land justify what to a layman appears to be a brazen denial of due process? By referring the hapless defendant to the healing succor of his national or local bar association. "The Sixth Amendment refers simply to 'counsel,' not specifying particular requirements of effective assistance," the Strickland court ruled. "It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions."

It's an extraordinary presumption. The legal profession has, after all, produced reams of ethical and professional standards to guide lawyers, but they are widely ignored and largely unenforced or unenforceable, and the justices of the Supreme Court know this better than anyone. In 1989 the American Bar Association approved "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases," which set rigorous standards. Invaluable though these guidelines may be in establishing goals for state and local governments, they remain purely hortatory and are rarely put into practice. The ABA's "Rules of Professional Conduct" require attorneys to communicate adequately and promptly with their clients, and forbid conflicts of interest. The ABA's "Model Rules" include a pie-in-the-sky provision that stipulates, "Every lawyer, regardless of professional prominence or professional workload, has a responsibility to provide legal services to those unable to pay." Yet in a country with a million lawyers more than 200 condemned prisoners await execution without counsel, and thousands of indigents accused of crimes are processed through the courts each year with only the barest semblance of counsel. Naturally, the ABA also has standards regarding ability ("A lawyer shall not handle a legal matter which he knows or should know that he is not competent to handle"), but lawyers routinely handle matters they know little or nothing about with the full complicity of the courts -- often with grave consequences to their clients and not a whimper from the state or local bar. The world would truly be a better place if all good people heeded the wisdom of the bar's sage oracles, but they don't. Justice Thurgood Marshall knew they wouldn't when he wrote in his dissent to Strickland, "To tell lawyers and the lower courts that counsel for a criminal defendant must behave ... like 'a reasonably competent attorney,' is to tell them almost nothing."

The predicament of an innocent defendant represented by an incompetent lawyer has been further complicated by Supreme Court rulings on what is known as "procedural default," which effectively punishes the client for his lawyer's incompetence or stupidity. In practice, procedural default sets up a classic Catch-22 situation. An indigent defendant is assigned a lawyer who fails to investigate the case properly, puts on a perfunctory defense, ignores exculpatory evidence, and collects his fee, while his client goes to prison. When the defendant, now a convicted felon, tries to have the exculpatory evidence raised on appeal, it is barred by the court, which announces that it should have been presented by counsel at the initial trial. Meanwhile, any claim against the lawyer is conveniently excused, thanks to Strickland.

In one of its most controversial procedural-default rulings the Supreme Court allowed Roger Coleman to be executed in Virginia after finding that he had no right to present in court what he claimed was evidence of innocence, because his attorney had missed a filing deadline by three days. In a ruling that seemed to give process precedence over life and liberty, the Court concluded that Coleman "must bear the risk of attorney error that results in a procedural default." Justice O'Connor wrote one of the more astounding death-penalty decisions in recent memory: "This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus" claims -- habeas being the procedure that allows prisoners to petition state and federal courts to determine whether a sentence violates the laws or the Constitution of the United States. A 6-3 majority of the Court appeared to be saying that state procedures were more important than Coleman's claim of innocence, and the defendant was executed. Justice Blackmun called the execution "an affront to principles of fundamental fairness," adding, "The more the Court constrains the federal courts' power to reach the constitutional claims of those sentenced to death, the more the Court undermines the very legitimacy of capital punishment itself."

Not only has the Supreme Court given its seal of approval to incompetent counsel; in some capital cases it has even sanctioned a lack of any counsel whatsoever. Coleman's execution was justified by the Court in part on the basis of another precedent-setting Virginia case, Murray v. Giarratano, in which the Court ruled that a capital defendant is not entitled to a court-appointed lawyer in a post-conviction proceeding. Citing Giarratano, the Court ruled that because Coleman had no right to counsel, he had no basis on which to make a claim of ineffective counsel. But why would the Supreme Court under any circumstances conclude that a person facing the ultimate sanction did not need an attorney -- particularly since federal law does recognize a right to counsel in post-conviction proceedings? Because, the Court reasoned, a state "may quite sensibly decide to concentrate the resources it devotes to providing attorneys for capital defendants at the trial and appellate stages of a capital proceeding." This sounds reasonable enough. But the Court's abstract rationale bears no relation to reality. Had the justices bothered to examine what resources Virginia was actually devoting to trials and appeals, they would have found that the state has one of the worst records on indigent defense anywhere in the nation, and routinely ignores the needs of the poor at both the trial and appellate stages.

Then again, perhaps the justices believe that a post-conviction appeal, one of the most complex areas of death-penalty law, is best handled by an illiterate high school dropout facing a lethal injection or the electric chair. If so, they might want to examine the abysmal success rate of capital defendants who try to play lawyer. Stephen Bright, the director of the Southern Center for Human Rights and one of the nation's pre-eminent capital-defense attorneys, says the chance that a person of normal intelligence could successfully represent himself without counsel on a murder charge is "equivalent to our going to the airport, and the pilot isn't there, and we say, 'Well, we'll just fly the Concorde to Paris ourselves.'" Bright recalls the 1996 case of Exzavious Gibson, a man with an IQ below 85, who was condemned to die by the State of Georgia and was forced to represent himself in a state post-conviction proceeding. "It was a farce, of course. The state had an expert lawyer and the defendant had no idea what he was doing.""

This part can be found at:

http://www.theatlantic.com/issues/99nov/9911wrongman3.htm

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM CASE: 2 'THE WRONG MAN'; A CLASSIC ARTICLE BY ALAN BERLOW PUBLISHED A DECADE AGO WHICH IS EXTREMELY RELEVANT TODAY; PART TWO;

"TRUE, COURTS HAVE FREQUENTLY ORDERED MURDER CONVICTIONS OVERTURNED AS A RESULT OF OFFICIAL MISCONDUCT. BUT A CHICAGO TRIBUNE INVESTIGATION PUBLISHED EARLIER THIS YEAR FOUND THAT SINCE 1963 AT LEAST 381 HOMICIDE CONVICTIONS NATIONWIDE HAVE BEEN OVERTURNED BECAUSE PROSECUTORS CONCEALED EVIDENCE OF INNOCENCE OR PRESENTED EVIDENCE THEY KNEW TO BE FALSE. NOT ONE OF THOSE PROSECUTORS HAS BEEN CONVICTED OF A CRIME OR BARRED FROM PRACTICING LAW."

ALAN BERLOW: THE ATLANTIC MONTHLY;

----------------------------------------------------------------------------------
Background; In November 1999, the Atlantic Monthly published a four-part article on capital punishment which bore a title which takes great significance with revelations that Cameron Todd Willingham was wrongfully executed: "The Wrong Man."

A preamble to the series noted that: "The prospect that innocent people will be executed in America is horrifyingly likely, the author argues in this unsparing report on the criminal-justice system. Police officers and prosecutors have suppressed evidence. Many public defenders are incompetent. And the appeals process is becoming more difficult."

The article - a classic in death penalty literature - is equally, if not more valid in 2009, a decade after it was first published. The series is a testament to Alan Berlow's powerful journalism. Berlow was honored for excellence in coverage of capital punishment by the Death Penalty Information Centre at the Eight Annual Thurgood Marshall Awards. The article is also a testament the Atlantic Monthly's commitment to exploring this crucial, truly life and death issue. The spirit of the article is reflected in the Quote attributed to Voltaire which accompanies it: "It is better to risk saving a guilty person than to condemn an innocent one."

-------------------------------------------------------------------------------

PART TWO: Accumulating Aberrations

"JOHN Justice, the former president of the National District Attorneys Association, and like-minded supporters of capital punishment don't dispute that innocent people have been sentenced to death," the second part begins.

"But they insist that wrongful death sentences are aberrations," it continues.

""The system is not perfect," says Justice, a South Carolina district attorney, arguing that "the reversals prove that the system works."

Governor George Ryan, of Illinois, advanced the same argument -- "The system does work and ... the checks and balances are there" -- last February, when his state released Anthony Porter from death row after a group of Northwestern University journalism students working with a private investigator proved that Porter was innocent and obtained a videotaped confession from the actual murderer. But as details of Porter's wrongful sixteen-year incarceration emerged, the governor apparently began having second thoughts about Illinois justice. Police officers involved in Porter's case allegedly ignored suspects identified by a relative of one victim and pressured witnesses and other suspects to testify against Porter. Porter's lawyer acknowledged that he had barely conducted any investigation, because his client's family had come up with only part of his fee. Porter, who has an IQ of 51, came within forty-eight hours of execution by lethal injection in September of last year. He was granted a reprieve so that the state could determine whether he was mentally competent to be executed. Had his IQ been 50 points higher, he would almost certainly be dead.

Governor Ryan recently told reporters that he's "not sure the system worked" in the Porter case. " I think everybody understands what's at stake here," Ryan said. "An innocent man was about to die, and thank God he didn't. And now we want to make sure that scenario doesn't ... come back and haunt us in the future." But Ryan knows as well as anyone that this scenario has reappeared repeatedly in Illinois. Since 1994 ten innocent people have been discovered on the state's death row. Porter's was actually the second Illinois case to be demolished by Northwestern students taking an investigative-reporting class. In 1996 students helped to establish the innocence of four Chicago black men convicted in a 1978 rape and murder involving a young white couple. Dennis Williams, Verneal Jimerson, Kenneth Adams, and Willie Raines spent a combined sixty-five years in prison. Williams and Jimerson spent fifteen and eleven years respectively on death row. In an effort to prevent erroneous death sentences in the future, the Illinois legislature recently passed, and Governor Ryan signed into law, legislation to increase funding for capital defenders and to require that they meet basic standards of competency.

Not surprisingly, Williams, Anthony Porter, and many of the other inmates released from death row over the past two decades are unforgiving of the system's imperfections. Williams says the State of Illinois "attempted to murder me." Immediately after his release Porter told reporters that he'd been "railroaded" by the Chicago police.

That law-enforcement authorities would plot to have a man executed for a crime he didn't commit is probably the most Kafkaesque scenario imaginable for the U.S. justice system -- a scenario that gives paranoids and conspiracy theorists a good name. But even if former death-row inmates truly believe they were framed by police officers and prosecutors, such claims are nearly impossible to prove. In the Rolando Cruz case a special prosecutor, William Kunkle, actually indicted four policemen and three former prosecutors for falsely accusing Cruz, charging them with perjury and obstruction of justice. But this is believed to be the only death-penalty case in U.S. history that has led to such high-level indictments, and earlier this year all the defendants were acquitted.

True, courts have frequently ordered murder convictions overturned as a result of official misconduct. But a Chicago Tribune investigation published earlier this year found that since 1963 at least 381 homicide convictions nationwide have been overturned because prosecutors concealed evidence of innocence or presented evidence they knew to be false. Not one of those prosecutors has been convicted of a crime or barred from practicing law. Although law-enforcement officials invariably insist that miscreants in their ranks should be punished, in practice prosecutors rarely find any reason to investigate, let alone indict, their colleagues. Under existing law, law-enforcement officials are virtually immune from civil and criminal liability. "If a prosecutor withholds evidence, it's not a crime," says Bennett L. Gershman, a professor at Pace Law School, in White Plains, New York, and the author of Trial Error and Misconduct. "The fact is that criminal prosecutions of prosecutors for matters relating to their professional responsibilities in American law are virtually unknown, inconceivable, unthinkable." Gershman believes that there are hundreds of cases of prosecutorial abuse each year, but says that the Justice Department acts on only one or two, "as if to show that they're really being vigorous and diligent in their oversight." And he insists that the same lax oversight prevails among the states. As for the bar associations, which are supposed to discipline their members, Gershman says they are far too timid to take on prosecutors.

The Justice Department contends that instances of prosecutorial misconduct represent a minute percentage of the tens of thousands of criminal cases brought each year. And there is no question that the public generally sees prosecutors as "white hats" who are working to rid our streets of certifiable bad guys like the Unabomber and Timothy McVeigh, who in a single act of terror murdered 168 people in Oklahoma City. Undoubtedly, the country's prisons contain many dangerous predators who are actually guilty of the crimes of which they were convicted, and most of those sentenced to death committed unspeakable acts.

But whether or not one believes that the system works fairly most of the time, there is no denying that innocent people have been found on death row, and that many owe their freedom to factors having little to do with a properly functioning system of justice. The innocence of James Richardson, who was sentenced to death in Florida for the murder of his seven children, was established only after someone broke into a prosecutor's office and stole a file on the case which showed that the state had suppressed evidence of Richardson's innocence and that key witnesses, including a local sheriff, had lied under oath. Richardson spent twenty-one years in prison for a crime he didn't commit. No law-enforcement official was ever held accountable.

Rolando Cruz owes his life to Brian Dugan, who told the police about his own involvement in the Nicarico murder only to escape the death penalty. Joseph Burrows spent five years on death row for murdering an elderly man in 1988. He was freed after the key witness against him, Gayle Potter, was persuaded by a conservative Republican pro-death-penalty lawyer to tell the truth: that she had committed the murder. Most murderers never confess to their crimes, and it's fair to assume that most don't care if innocent people are executed in their place.

Walter McMillian, a black Alabaman who spent six years on death row for murdering an eighteen-year-old white woman, probably owes his freedom to a judge who was determined to have him executed. McMillian, who was dating a white woman at the time of his arrest, was sent to death row before even being tried. Although he had no prior felony record and twelve alibi witnesses placed him at a church fundraiser at the time of the murder, a jury convicted him of murder after a trial lasting a day and a half and sentenced him to life in prison without parole. But that wasn't good enough for Judge Robert E. Lee Key Jr., who overruled the jury. Citing the "vicious and brutal killing of a young lady in the first full flower of adulthood," Key condemned McMillian to die in Alabama's electric chair.

Today Judge Key says he doesn't want to talk about the McMillian case, and volunteers that McMillian "had one of the finest criminal attorneys in the state of Alabama representing him -- a black attorney, by the way." Key says, "I'll go to my grave believing [McMillian] was guilty as hell." What Key doesn't say is that he had the trial moved from a county that was 40 percent black to one that was 13 percent black; that prosecutors withheld exculpatory evidence; that the state's principal witness avoided a capital murder charge by testifying against McMillian; that other witnesses were paid thousands of dollars for their false testimony; that the state's three primary witnesses all later recanted; and that the State of Alabama eventually admitted it had made a terrible mistake. Had Key not demanded the death penalty, however, Walter McMillian would probably be wasting away in prison along with the scores of other convicted murderers who, precisely because they are not facing execution, generate neither public interest nor the attention of the country's top capital defenders, who employ an emergency-room triage system that focuses on those in greatest need.

Just how often the police actually get the wrong man is nothing short of astounding. A 1996 Justice Department report, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, found that in 8,048 rape and rape-and-murder cases referred to the FBI crime lab from 1988 to mid-1995, a staggering 2,012 of the primary suspects were exonerated owing to DNA evidence alone. Had DNA analysis not been available (as it was not a decade earlier), several hundred of the 2,012 would probably have been tried, convicted, and sentenced for crimes they didn't commit.

Related link:
The National Commission on the Future of DNA Evidence
A division of the National Institute of Justice created by the Attorney General whose mission is "to maximize the value of forensic DNA evidence in the criminal justice system."
DNA testing has without question revolutionized forensic science. Particularly in rape cases, its use is already preventing injustices of the kind that resulted from mistaken eyewitness identifications in the past. The attorney Barry C. Scheck says that his Innocence Project, at the Benjamin N. Cardozo School of Law, at Yeshiva University, has successfully employed DNA evidence to exonerate thirty-six convicted felons, and that nationwide DNA testing has been used to secure the release of sixty-two men sentenced for crimes they didn't commit, including eight on death row. Two death-penalty states, New York and Illinois, have found recent DNA-assisted cases so compelling that they have enacted laws allowing any inmate who feels he has a legitimate claim of innocence to demand post-conviction DNA testing.
The bad news is that there is no logical reason to think that police-error rates in criminal investigations lacking DNA evidence are any better than the 25 percent error rate in those where it is present. In 1984 a Maryland jury concluded that Kirk Bloodsworth, a former Marine with no arrest record, was guilty of raping and murdering a nine-year-old girl, after hearing several eyewitnesses testify that they'd seen him with the girl on the day of the crime. In June of 1993, after Bloodsworth had spent nearly nine years in prison, a new DNA test, unavailable at the time of his trial, demonstrated that semen found on the victim's clothing could not have been his. Had the actual assailant in this case simply murdered the victim and not raped her, DNA testing would have been irrelevant, and Bloodsworth, whose sentence had been commuted to life, would probably still be rotting away in a Maryland prison.

"I was separated from my family and branded the worst thing a man can be called -- a child killer and rapist," Bloodsworth says today. "I don't know why all these things happened to me. Maybe God had a reason. Maybe He was trying to say these things happen to ordinary people."

One can, of course, argue that Kirk Bloodsworth is that rare exception to the proper functioning of the judicial system. But one can make the same case for Walter McMillian, and Joseph Burrows, and Anthony Porter. At some point the accumulating aberrations begin to suggest a more pervasive problem. At some point they raise the troubling suspicion that we as a nation may be tolerating the execution of innocent people.


Death-Qualified Juries
LTHOUGH there is a common perception that the average murderer has endless forums in which to make his case, the reality is that once a defendant is found guilty by a jury, doors to an appeal begin slamming shut, and the burden of proof becomes far greater: where the defendant once had to convince a jury that he was not guilty "beyond a reasonable doubt," he now goes before the court under a presumption of guilt and must attempt to prove his innocence. Therefore a defendant's first trial may be his only real opportunity to present a complete case. In gruesome, high-profile cases like the Nicarico murder, a defendant may go to trial with a theoretical presumption of innocence but he or she will have a difficult time proving that innocence. Jurors are naturally reluctant to acquit someone who may have murdered a child, and the more violent and vicious the crime, the more likely a jury is to convict. So-called death-qualification procedures, in which potential jurors are questioned, often for days on end, about their ability to impose the death penalty (they must be willing to call for the death penalty in order to be seated), tend to create an atmosphere in which jurors go into a courtroom assuming that the defendant is guilty and that their only job is to decide on the appropriate sentence. Numerous studies have demonstrated that death-qualified jurors are more likely to convict.

Mike Callahan, who sat on the death-qualified jury in the first Rolando Cruz trial (in which Cruz was tried with a co-defendant), believes that "half of the jurors had their minds made up before the trial even started." Callahan says that on the very first day of the trial, after the judge had ordered jurors not to discuss the proceedings among themselves, the jury foreman said, "Well, they're here, they must have done something." When the jurors finally began their deliberations, Callahan recalls, the first thing the foreman told them was "This'll be a mere formality, so we might as well get on with it." Callahan says he had grave reservations about the defendants' guilt and was stunned when the judge imposed the death sentence. "It wasn't an open-and-shut case, it absolutely wasn't, and to give the death penalty -- I was absolutely appalled." Nevertheless, Callahan had voted to convict, because "I was more than willing to say, 'All right, we'll put you in the slammer for a while, and sooner or later the truth is going to come out.'" That's not exactly how the system is supposed to work.

Callahan and his fellow jurors might be forgiven their erroneous verdict, since they were not presented with all the evidence of innocence. If prosecutors present inaccurate, incomplete, or fabricated evidence, even the most unprejudiced and fair-minded juror may vote to convict an innocent man. And although most prosecutors and police officers presumably do not "cook" the facts, it is difficult to ignore the all-too-common exceptions. The Justice Department's DNA study found that eight of twenty-eight rape and rape-and-murder cases in which juries had convicted innocent men involved allegations of perjured trial testimony, fabricated lab evidence or expert testimony, or the withholding of exculpatory evidence by the police and prosecutors. Manufacturing evidence against an accused murderer may not be easy to get away with, but if the defendant has a criminal record, jurors are likely to give prosecutors the benefit of the doubt.

One troublesome and increasingly frequent source of perjured testimony is the "jailhouse snitch" -- the convicted felon who will testify to just about anything for the prosecution in exchange for a reduced sentence. Walter F. Rowe, a professor of forensic science at George Washington University, says, "The dirty little secret in this country, and it's not such a secret, is that if you perjure yourself for the prosecution, no one's going to prosecute you." One Los Angeles County Jail inmate, Leslie White, acknowledged that he had fabricated a dozen "confessions" by fellow inmates, which he reported to authorities in exchange for more-lenient treatment.

But perjured evidence may come from sources far more insidious than convicted felons. In West Virginia, Frederick Zain, a police chemist and a popular expert witness for the prosecution, was accused of repeatedly falsifying laboratory results and presenting perjured testimony at trial. No fewer than 170 rape and murder convictions in West Virginia and Texas, all based in part on testimony by Zain, were called into question, and six men who served a total of forty years in prison have had their convictions overturned. In Texas, the nation's execution capital, where more than seventy-nine people have been executed in the past three years, prosecutors relied for years on the expert testimony of Ralph Erdmann, a forensic pathologist, who repeatedly falsified autopsy reports to support prosecution arguments in death-penalty cases. A special prosecutor's investigation of Erdmann concluded, "If the prosecution theory was that death was caused by a Martian death ray, then that was what Dr. Erdmann reported." Texas prosecutors also repeatedly relied on James Grigson, a psychiatrist who became known as "Dr. Death" because his expert opinion in 124 capital cases contributed to 115 death sentences. One of those sentenced was Randall Dale Adams, whose wrongful conviction was the subject of the movie The Thin Blue Line. Grigson testified at Adams's 1977 trial that the defendant had a "sociopathic personality disorder" and that "there is no question in my mind that Adams is guilty." Asked if Adams was likely to kill in the future, given the opportunity, Grigson replied, "He will kill again." In fact Adams was innocent, and had never killed anyone. He came within seventy-two hours of execution.


Winning at Any Cost
N Canada, which has no death penalty and only a handful of known wrongful murder convictions, the Ontario government conducted a year-long investigation into a case strikingly similar to that of Rolando Cruz. Guy Paul Morin was convicted of raping and murdering a nine-year-old girl and was freed in 1995 after a DNA test helped to establish his innocence. His family was awarded $1.25 million and an official apology from the attorney general's office. When Fred Kaufman, a retired judge, released a 1,400-page report on the case, in April of last year, he said, "This case is not unique. This case is not an aberration. The causes of Mr. Morin's conviction are rooted in systemic problems as well as the failings of individuals." The report made 119 recommendations for reforming the Canadian criminal-justice system.

In contrast, law-enforcement officials in the United States are just beginning to wake up to the fact that the growing numbers of innocent prisoners who are being discovered on death row raise profound constitutional issues. Although the Justice Department and a handful of state legislatures have examined pieces of the wrongful-conviction puzzle, no government agency, federal or state, has conducted a comprehensive analysis of why such miscarriages occur -- not even in Florida, where at least eighteen innocent men have been discovered on death row since 1977.

In 1935 Supreme Court Justice George Sutherland wrote that a prosecutor is


the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.... It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Since 1977 more than 570 people have been executed in the United States. Executions have become so routine that they are rarely given anything but perfunctory notice by the media. Rational debate over the benefits versus the costs of all these executions has been replaced by the rhetoric of "the paladins and pillars of justice and equity," as William Faulkner described them in Old Man -- men who have become "blind apostles not of mere justice but of all human decency, blind instruments not of equity but of all human outrage and vengeance." In many prosecutorial offices Sutherland's conception of American justice has been replaced by an ethos of winning at any cost.

Examples of the take-no-prisoners approach to justice are legion. In 1995 Newt Gingrich, then the speaker of the House, suggested that Communist Chinese-style executions of "twenty-seven or thirty or thirty-five people at one time" might deter would-be drug smugglers. When flames burst from the head of Pedro Medina during his execution, in March of 1997, Florida's highest law-enforcement official, State Attorney General Bob Butterworth, saw a silver lining. He commented that the incident would send a message to potential lawbreakers: "People who wish to commit murder, they better not do it in the state of Florida, because we may have a problem with our electric chair." Television advertising in recent election campaigns has often featured candidates trying to persuade voters that they're "tougher" with respect to the death penalty than their opponents. Kirk Fordice promised in his campaign for governor that he would make Mississippi the "capital of capital punishment." Texas Governor Ann Richards, who presided over fifty executions during her four years in office, lost to George W. Bush in 1994 after a campaign in which he attacked her for not executing more people more quickly. During his first term Bush presided over seventy-seven executions. To date no fewer than 100 people have been executed on Bush's watch. Elected governors have also taken to boasting about the number of death warrants they have signed, as if this provided some objective yardstick of their fitness to serve. Kentucky Governor Paul Patton signed five execution warrants on his second day in office, though all five cases were still pending in court. Bob Martinez has bragged that he signed some ninety death warrants during his four years as governor of Florida. And Governor Bill Clinton flew to Arkansas during the 1992 New Hampshire presidential primary for the execution of a brain-damaged man who had killed a policeman. Flouting Supreme Court rulings against executing the mentally incompetent, Clinton seized control of the crime issue for the Democratic Party.

Many of these same death-penalty champions dismiss concerns about mistaken convictions and the execution of innocents, assuring voters that gubernatorial clemency provides what Chief Justice William Rehnquist referred to in 1993 as "the fail-safe in our criminal justice system." In several prominent cases where innocent men had exhausted all avenues of redress, clemency proved their only salvation. In Maryland, for example, the wrongfully condemned Kirk Bloodsworth might still be in jail had the pardon power not been available.

Clemency, however, presupposes a degree of integrity and political courage that is not readily apparent among the governors of most death-penalty states. Governors often eschew clemency, citing the sanctity of the jury process and their obligation to carry out the will of the people or to uphold the laws of the state. In cases where evidence of innocence is anything short of overwhelming, a governor facing a tough re-election in a strong pro-death-penalty state might decide against clemency for largely political reasons. The "fail-safe" case that Rehnquist wrote about involved a man convicted of killing two police officers in Texas. No governor would be inclined to grant clemency in that kind of situation.

Since 1973 there have been more than 6,000 death sentences and only forty cases of clemency nationwide. Clemency is most often granted when a governor is leaving office and needn't worry about voter reaction. In Texas, where it's difficult to keep up with reported miscarriages of justice, the Board of Pardons and Paroles almost never consents to defense requests for clemency. The only recent defense request granted was in 1998, when Governor Bush stopped the execution of Henry Lucas, who, although he was an established serial killer, had falsely confessed to dozens of other murders, including the one for which he was about to be executed. Bush wisely decided that it would be unseemly to execute him for a crime he didn't commit.

Unfortunate though political motives may be in the gubernatorial court of last resort, they are far more perfidious in the courthouse. Yet the idea of an independent judiciary -- of judges willing to stand above politics -- has come under relentless assault. Senate Republicans made it clear at the outset of the Clinton presidency that they would challenge any judicial nominee who lacked strong capital-punishment credentials, although the precise standard of political correctness has sometimes been difficult to discern. When Rosemary Barkett, the chief justice of Florida's Supreme Court, was nominated to the U.S. Court of Appeals, Senator Orrin Hatch said he wanted to see if she was "serious enough about the death penalty," even though Barkett had upheld more than 200 death sentences.

In 1996 Supreme Court Justice John Paul Stevens told the American Bar Association that "a campaign promise to be 'tough on crime,' or to 'enforce the death penalty,' is evidence of bias that should disqualify a candidate from sitting in criminal cases." Such a view probably seems tiresomely old-fashioned to a great many lawmakers today. Nowadays politicians are too busy seeking recalls, resignations, and impeachments of judges whose opinions are politically unpopular to be concerned with judicial independence or the separation of powers. In Tennessee, Republican Governor Don Sundquist proclaimed before a 1996 judicial election that he would appoint only death-penalty supporters to be criminal-court judges. Some judges and judicial candidates who must run for office have clearly imbibed a similar message, campaigning for office with promises to impose the death sentence at every opportunity. In thirty-two of the thirty-eight death-penalty states judges may be subjected to voter approval. In most it is highly implausible that a candidate who refused to take a strong position in favor of the death penalty could be elected. Judges are also elected in eight out of the nine states where it is a judicial prerogative to impose a death sentence or to override a jury's sentence of life. Can such judges fairly examine the facts in a gruesome murder case when the public is demanding execution?" Continued...

This part can be found at:

http://www.theatlantic.com/issues/99nov/9911wrongman2.htm

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM CASE: 1 'THE WRONG MAN'; A CLASSIC ARTICLE BY ALAN BERLOW PUBLISHED A DECADE AGO WHICH IS EXTREMELY RELEVANT TODAY; PART ONE;

"ALTHOUGH WE HAVE NO WAY OF KNOWING HOW MANY INNOCENT PEOPLE REMAIN ON DEATH ROW, OR HOW MANY ARE SERVING LIFE OR OTHER LENGTHY PRISON SENTENCES FOR CRIMES THEY DIDN'T COMMIT, SURELY THE NUMBER OF INNOCENT PEOPLE DISCOVERED AND FREED FROM PRISON IS ONLY A SMALL FRACTION OF THOSE STILL INCARCERATED. THE OTHER UNANSWERED QUESTION IS, OF COURSE, HOW MANY, IF ANY, INNOCENT PEOPLE HAVE ACTUALLY BEEN PUT TO DEATH."

ALAN BERLOW: THE ATLANTIC MONTHLY;

----------------------------------------------------------------------------------
Background; In November 1999, the Atlantic Monthly published a four-part article on capital punishment which bore a title which takes great significance with revelations that Cameron Todd Willingham was wrongfully executed: "The Wrong Man."

A preamble to the series noted that: "The prospect that innocent people will be executed in America is horrifyingly likely, the author argues in this unsparing report on the criminal-justice system. Police officers and prosecutors have suppressed evidence. Many public defenders are incompetent. And the appeals process is becoming more difficult."

The article - a classic in death penalty literature - is equally, if not more valid in 2009, a decade after it was first published. The series is a testament to Alan Berlow's powerful journalism. Berlow was honored for excellence in coverage of capital punishment by the Death Penalty Information Centre at the Eight Annual Thurgood Marshall Awards. The article is also a testament the Atlantic Monthly's commitment to exploring this crucial, truly life and death issue. The spirit of the article is reflected in the Quote attributed to Voltaire which accompanies it: "It is better to risk saving a guilty person than to condemn an innocent one."

-------------------------------------------------------------------------------

"ON the afternoon of February 25, 1983, a sunny, dimple-cheeked little girl named Jeanine Nicarico reportedly heard a knock on the front door of the comfortable split-level house where she, her two older sisters, and their parents lived in Naperville, a Chicago suburb," the article begins.

"The ten-year-old, home from school with the flu, listened through the door as a man said his car had broken down and he needed help," it continues.

"Jeanine, dressed in a nightgown picturing one of Snow White's dwarfs, with the words "I'm Sleepy," told him she was all alone and couldn't let him in. The man kicked in the front door, carried Jeanine to an upstairs bedroom, wrapped her in a sheet, and taped a towel around her eyes. Her body was discovered forty-eight hours later, less than two miles from the house. An autopsy revealed that she had been sodomized and that her skull had been crushed by a blunt instrument.

The Nicarico murder is every parent's worst nightmare, one that Thomas and Patricia Nicarico have lived with for the past sixteen years. It's the kind of case that leads 75 percent of Americans to support the death penalty. For nearly as many years Rolando Cruz has lived with another kind of nightmare. On February 22, 1985, Cruz was convicted of murder, rape, deviant sexual assault, kidnapping, and burglary in the Jeanine Nicarico murder trial. Despite the fact that the police found no physical evidence linking him to the victim, a judge sentenced Cruz to die by lethal injection. Because of a prosecutorial error, the Illinois Supreme Court ordered a second trial for Cruz, and in February of 1990 he was again found guilty and sentenced to death. That verdict was overturned in 1994. Then, on November 3, 1995, as a third trial got under way, one of the police officers who had provided critical evidence against Cruz acknowledged that he had lied under oath. The judge ordered a directed verdict of not guilty, and Rolando Cruz, having spent nearly twelve years in jail, was a free man.

The policeman's revelation alone didn't prove that Cruz was not guilty, but by then the state's case was a shambles. DNA evidence had all but eliminated Cruz as a suspect in the rape, and implicated another man, Brian Dugan, who, astonishingly, had claimed ten years earlier that he raped and killed Jeanine Nicarico. Dugan had also confessed to five other vicious crimes, including the rape and murder of a seven-year-old girl. Those confessions were credible enough for prosecutors in nearby Kane and LaSalle Counties, who used them to win Dugan's conviction and two consecutive life terms without parole. But the state attorney for DuPage County, James Ryan, now the Illinois attorney general, was convinced that Dugan was lying, and Illinois prosecutors fought for another decade to keep Dugan's testimony out of court while they tried Cruz twice more. They continued with their case despite the resignation of one of their own detectives, who was so certain of the state's error that he had offered to testify for the defense in Cruz's first trial. And they pressed on even after an assistant attorney general, too, resigned, protesting that the state was attempting to execute an innocent man. To date the Nicarico murder remains officially unsolved.

"The Worst Kind of Mistake"

WHY prosecutors were so zealous in their pursuit of Cruz has been a matter of considerable speculation. Clearly, there was enormous public and political pressure on the state attorney's office to solve the highly publicized Nicarico case; it is quite possible that the police and prosecutors became convinced of Cruz's guilt before they had accumulated the facts to prove it, and then stuck with their hunch even as the holes in their case multiplied. Short of unimpeachable exculpatory evidence, prosecutors are loath to back away from an indictment, much less a conviction. No doubt Cruz shares responsibility for his lengthy ordeal, because he foolishly sought to sell the police a fabricated story about the murder in exchange for a $10,000 reward, thereby injecting himself into a situation he might otherwise have avoided. If law-enforcement officials had any doubt about Cruz's guilt, it presumably evaporated with the jury's guilty verdict in the defendant's first trial. When that verdict was set aside, prosecutors probably satisfied themselves that the court's decision turned on nothing more than a technicality. By the time Cruz's third trial rolled around, even the exculpatory DNA evidence was insufficient to shake the prosecution's belief in the rightness of its cause. Even today the leading prosecutors and police officers in the Cruz case insist that he was involved in the crime.

If Rolando Cruz were the only person ever mistakenly condemned to death in the United States, one could find any number of ways to explain his case away. But since the Supreme Court reinstated the death penalty, in 1976, more than eighty death-row inmates have been freed from prison, their convictions overturned by evidence of innocence. That may not sound like many, given the huge U.S. prison population, but it is more than one percent of the 6,000 men and women who were sentenced to death in that same period, and equal to almost 15 percent of those actually executed -- not good odds for the defendants, given the stakes. The reasons for these miscarriages of justice range from simple police and prosecutorial error to the most outrageous misconduct, such as the framing of innocent people, and everything in between: perjured testimony, erroneous eyewitness testimony, false confessions (including the confessions of innocent defendants), racial bias, incompetent defense counsel, and overzealous police officers and prosecutors who may or may not genuinely believe they have the perpetrator of a heinous crime. Taken together, these miscarriages are not only shocking but also a powerful indictment of the way our criminal-justice system operates, particularly with regard to those at the margins of American society. Although we have no way of knowing how many innocent people remain on death row, or how many are serving life or other lengthy prison sentences for crimes they didn't commit, surely the number of innocent people discovered and freed from prison is only a small fraction of those still incarcerated. The other unanswered question is, of course, how many, if any, innocent people have actually been put to death.

Opponents of the death penalty believe that the execution of an innocent person would have a profound impact on public support for capital punishment. In England several wrongful executions played a crucial role in the decision, in 1964, to abolish the death penalty for murder. The execution of an innocent man in Michigan led to abolition in that state in 1846. Death-penalty supporters in this country have invested considerable energy in reassuring the public that the execution of an innocent person is virtually impossible. William G. Otis, formerly a special counsel to President George Bush and now an adjunct professor of law at George Mason University, in Virginia, says, "The administration of the death penalty ought to be, and in my view in fact is, surrounded with the most elaborate and exacting sort of safeguards of any decision that the government makes, and properly so." Paul G. Cassell, a professor of law at the University of Utah and a leading advocate of capital punishment, is even more categorical. "There is no documented case,"he says, "of a factually innocent person who has been executed for at least the last fifty years." Ironically, it is the safeguards Otis refers to -- the often time-consuming constitutional and legal challenges to convictions and death sentences -- that death-penalty supporters have successfully undermined during the past decade, thereby increasing the likelihood of executing an innocent person.

Proving that an innocent person has been executed is difficult. Once a convicted murderer is dead, few people have any incentive to pursue claims of innocence. Witnesses and evidence disappear, memories fade, and defense resources that may have been marshaled to save a life evaporate. Nevertheless, a handful of cases over the past decade have raised troubling questions as to whether the person executed was guilty "beyond a reasonable doubt."

Last December, Florida Supreme Court Justice Gerald Kogan said he had "grave doubts" that at least two people executed during his twelve years on the bench were guilty. In one of the most controversial capital cases to reach the Supreme Court, the late Justice Harry A. Blackmun pointed out that the condemned man had an affidavit from a former state judge swearing that his own client, and not the defendant, was the actual killer. "The execution of a person who can show that he is innocent comes perilously close to simple murder," Blackmun wrote in 1993 in a dissenting opinion.

The 1992 execution of Roger Coleman remains controversial even today. Only hours before Coleman was scheduled to die in Virginia's electric chair, Governor Douglas Wilder allowed the condemned man to take a polygraph test. Coleman flunked and was executed later the same day. "If he had passed it," Wilder said at the time, "it obviously could have -- could have -- influenced my decision [about clemency]." Aside from the fact that some polygraph experts claim that administration of a test under such extreme stress would make it virtually worthless, Wilder's action suggested to many people that he had at least some doubt about Coleman's guilt -- raising the question of why he allowed the execution to proceed. Today Wilder says he is absolutely certain that Coleman was guilty.

Doubts about the guilt of capital offenders have also been raised by jurors who learned after an execution of evidence they hadn't heard during the trial, and by others intimately involved with the fate of capital defendants. Don Cabana, a former warden of the Mississippi state prison, who presided over the 1987 execution of Edward Earl Johnson, says he believes that Johnson was probably innocent. Howard Marsellus, a former chairman of the Louisiana pardon board, admits that he was responding to political pressure when he voted, in 1984, to execute Timothy Baldwin, a man he believed was innocent of the bludgeoning death of an eighty-five-year-old woman. "I'm guilty as sin," Marsellus says. "I did something morally wrong. I gave in to the prestige and power, the things that went with my job. I knew what the governor, the man who appointed me, wanted: no recommendation for clemency in any death case." Marsellus says he is haunted by Baldwin's execution. "The man walked in [to the execution chamber], grabbed the microphone, and looked dead in my face and said, 'Y'all are about to execute an innocent man and someday you'll have to answer for this.' Man, I will carry this to my grave."

Indisputable evidence that an innocent person has been executed in recent years has yet to be produced. But the close calls, as much as any actual execution, expose a myriad of potentially lethal fault lines in the administration of death sentences.

In 1972, in the case of Furman v.Georgia, the Supreme Court ruled 5-4 that the death penalty as then administered violated the Eighth Amendment's proscription against cruel and unusual punishment and the Fourteenth Amendment's equal-protection clause. Individual justices in the majority found much they didn't like about the death penalty. They said that it was disproportionately applied to the "poor and despised," that it was frequently imposed on the "constitutionally impermissible basis of race," and that it was applied in an "arbitrary and capricious" fashion. Although one can make a compelling case that all these criticisms remain valid today, the Supreme Court has since rejected them. The Court has said, however, that it is concerned about the risk of imposing an arbitrary sentence as well as about the proven fact of one. Even Justice Sandra Day O'Connor, a vigorous death-penalty proponent, stated in a 1985 decision that a sentence would have to be struck down if it created "an unacceptable risk that 'the death penalty [had been] meted out arbitrarily or capriciously' or through 'whim ... or mistake.'" If nothing else, the wrongful sentencing to death of more than eighty innocent people would seem to suggest that there remains something both arbitrary and capricious about the way the death penalty has been administered since Furman. "If you have this many mistakes, you can't say we're only executing guilty people," argues Richard Dieter, the director of the Death Penalty Information Center, in Washington, D.C., a nonprofit research organization. "These cases illustrate the possibility of making the worst kind of mistake."Continued;

Part One can be found at:

http://www.theatlantic.com/issues/99nov/9911wrongman.htm

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGTON CASE; THE ILLUSION OF CLEMENCY; ALAN BERLOW'S "THE TEXAS CLEMENCY MEMOES";

"ALBERTO GONZALES TOLD ME IN 2000 THAT IN HIS EXECUTION BRIEFINGS HE ALWAYS PRESENTED GOVERNOR BUSH WITH A "DETAILED FACTUAL BACKGROUND OF WHAT HAPPENED," ALONG WITH "OTHER OUTSTANDING FACTS OR UNUSUAL ISSUES." YET A CLOSE EXAMINATION OF THE WRITTEN EXECUTION SUMMARIES HE PREPARED FOR BUSH CERTAINLY RAISES QUESTIONS ABOUT THE THOROUGHNESS OF GONZALES'S APPROACH—AND, ULTIMATELY, GIVEN THE BREVITY OF THE SUMMARIES AND THE TIMING OF THEIR ARRIVAL AT THE GOVERNOR'S OFFICE, ABOUT THE LEVEL OF ATTENTION BUSH COULD POSSIBLY HAVE DEVOTED TO THE CLEMENCY PROCESS. IN HIS SUMMARIES OF THE CASES OF TERRY WASHINGTON, DAVID STOKER, AND BILLY GARDNER, GONZALES DID NOT MAKE GOVERNOR BUSH AWARE OF CONCERNS ABOUT INEFFECTIVE COUNSEL, ESSENTIAL MITIGATING EVIDENCE, AND EVEN COMPELLING CLAIMS OF INNOCENCE. THESE WERE ALL MATTERS OF LIFE OR DEATH, REQUIRING IN-DEPTH EXPLANATION AND DISCUSSION, THAT NO ATTORNEY IN GONZALES'S POSITION SHOULD LEAVE OUT OF A WRITTEN CASE SUMMARY OR SAVE FOR A THIRTY-MINUTE ORAL BRIEFING—ESPECIALLY IF BOTH ARE TO BE DELIVERED ON THE VERY DAY OF A SCHEDULED EXECUTION."

ALAN BERLOW: THE ATLANTIC MONTHLY;

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The quality of America's clemency system is utterly crucial to any debate on the death penalty - such as the debate engendered by the wrongful execution of Cameron Todd Willingham.

A previous post on this Blog noted that writer Andrew Cohen had proposed a course on capital punishment in America in a commentary published on Sept. 8, 2009, in Vanity Fair, under the apt heading, "Texas Toast: Capital Punishment in America."

"I’d start with the famous Atlantic magazine article from 2003 called the “Texas Clemency Memos," Cohen wrote in Vanity Fair. "Writer Alan Berlow did a masterful job there of explaining how the future president of the United States, George W. Bush, and the future attorney general of the United States, Alberto Gonzales, mismanaged Texas’s clemency system a full decade ago. To call the piece an “eye-opener” is to do it disservice."

Who is Alan Berlow?

The Atlantic Monthly described him as: " (A freelance journalist, writes frequently about criminal-justice issues. He is the author of Dead Season: A Story of Murder and Revenge (1996). His documentary about jurors in capital murder cases, "Deadly Decisions," was produced for American RadioWorks and broadcast on NPR stations last year. His article "The Wrong Man" appeared in the November 1999 Atlantic."

Berlow's July/August 2003 Atlantic story, entitled "The Texas Clemency Memoes" was preceded by the following preamble: "As the legal counsel to Texas Governor George W. Bush, Alberto R. Gonzales—now the White House counsel, and widely regarded as a likely future Supreme Court nominee—prepared fifty-seven confidential death-penalty memoranda for Bush's review. Never before discussed publicly, the memoranda suggest that Gonzales repeatedly failed to apprise Bush of some of the most salient issues in the cases at hand."

"On the morning of May 6, 1997, Governor George W. Bush signed his name to a confidential three-page memorandum from his legal counsel, Alberto R. Gonzales, and placed a bold black check mark next to a single word: DENY," the article began.

"It was the twenty-ninth time a death-row inmate's plea for clemency had been denied in the twenty-eight months since Bush had been sworn in," it continued.

"In this case Bush's signature led, shortly after 6:00 P.M. on the very same day, to the execution of Terry Washington, a mentally retarded thirty-three-year-old man with the communication skills of a seven-year-old.

Washington's death was barely noted by the media, and the governor's office issued no statement about it. But the execution and the three-page memo that sealed Washington's fate—along with dozens of similar memoranda prepared for Bush—speak volumes about the way the clemency process was approached both by Bush and by Gonzales, the man most often mentioned as the President's choice for the next available seat on the Supreme Court.

During Bush's six years as governor 150 men and two women were executed in Texas—a record unmatched by any other governor in modern American history. Each time a person was sentenced to death, Bush received from his legal counsel a document summarizing the facts of the case, usually on the morning of the day scheduled for the execution, and was then briefed on those facts by his counsel; based on this information Bush allowed the execution to proceed in all cases but one. The first fifty-seven of these summaries were prepared by Gonzales, a Harvard-educated lawyer who went on to become the Texas secretary of state and a justice on the Texas supreme court. He is now the White House counsel.

Gonzales never intended his summaries to be made public. Almost all are marked CONFIDENTIAL and state, "The privileges claimed include, but are not limited to, claims of Attorney-Client Privilege, Attorney Work-Product Privilege, and the Internal Memorandum exception to the Texas Public Information Act." I obtained the summaries and related documents, which have never been published, after the Texas attorney general ruled that they were not exempt from the disclosure requirements of the Public Information Act.

Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die. Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history. Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes.

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.

The case of Terry Washington was typical. Gonzales devoted nearly a third of his three-page report on Washington to the gruesome details of the crime. He informed Bush that the victim, Beatrice Huling, was a twenty-nine-year-old restaurant manager, and wrote, "An autopsy determined she suffered 85 stab wounds, seven of which were fatal, and was eviscerated." But the summary refers only fleetingly to the central issue in Washington's clemency appeal—his limited mental capacity, which was never disputed by the State of Texas—and presents it as part of a discussion of "conflicting information" about the condemned man's childhood. (The page containing this discussion is missing from the copy of the summary signed by Bush, raising the possibility that he never actually saw it before authorizing Washington's execution.) Most important, Gonzales failed to mention that Washington's mental limitations, and the fact that he and his ten siblings were regularly beaten with whips, water hoses, extension cords, wire hangers, and fan belts, were never made known to the jury, although both the district attorney and Washington's trial lawyer knew of this potentially mitigating evidence. (Washington did not testify at his trial or his sentencing.)

Gonzales's lack of attention to Washington's mental retardation is particularly surprising because demand was growing nationwide to ban executions of the retarded, and because the most highly publicized case of a retarded defendant, that of Johnny Paul Penry, was even then playing itself out in Texas courts. The miscarriages in the Washington case were also precisely the kind of thing Bush claimed to want to be told about. "I don't believe my role is to replace the verdict of a jury with my own," he wrote in his autobiography, A Charge to Keep (1999), "unless there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair." Such information had indeed come to light in Washington's case, yet Gonzales's memorandum did not tell Bush about it.

Not only did Gonzales ignore Washington's mental limitations, but he didn't mention that Washington's trial lawyer had failed to enlist a mental-health expert to testify on Washington's behalf (although he was entitled to one under a 1985 Supreme Court ruling), which in a death-penalty case clearly suggests ineffective counsel. Nor did he mention that ineffective counsel and mental retardation were in fact the central issues raised in the thirty-page clemency petition. Gonzales noted only that the petition had been rejected by the Board of Pardons and Paroles, a body that one federal judge condemned in 1998 for its tendency to rule on clemency appeals without any investigation or discussion among its members.

Gonzales declined to be interviewed for this story, but during the 2000 presidential campaign I asked him if Bush ever read the clemency petitions of death-row inmates, and he equivocated. "I wouldn't say that was done in every case," he told me. "But if we felt there was something he should look at specifically—yes, he did look from time to time at what had been filed." I have found no evidence that Gonzales ever sent Bush a clemency petition—or any document—that summarized in a concise and coherent fashion a condemned defendant's best argument against execution in a case involving serious questions of innocence or due process. Bush relied on Gonzales's summaries, which never made such arguments.

Did Gonzales reserve the most important issues and documents in the Washington case for a more extensive oral briefing of the governor? Only he and Bush know. It is highly unlikely, however, given that Gonzales usually presented an execution summary to the governor on the day of an execution and that, as he has acknowledged, his briefings typically lasted no more than thirty minutes—far too little time for a serious discussion of a complex clemency plea. Bush's appointment calendar for the morning of Washington's execution shows a half-hour slot marked "Al G—Execution."

All governors claim that they agonize over death penalty decisions. During his time in office Bush made numerous statements to this effect, among them "I take every death penalty case seriously and review each case carefully" and "Each case is major, because each case is life or death." In his autobiography he wrote, "I review every death penalty case thoroughly" and added, referring to his legal staff, "For every death penalty case, they brief me thoroughly, review the arguments made by the prosecution and the defense, raise any doubts or problems or questions." Bush always maintained that this review provided what he called a "fail-safe" method for ensuring due process and certainty of guilt. Asked about the governor's handling of capital cases, Johnny Sutton, Governor Bush's adviser on criminal-justice policy, told The New York Times in May of 2000, "This is probably the most important thing we do in state government."

But Gonzales's execution summaries belie these assurances of thorough and judicious review. The memoranda seem attuned to a radically different posture, assumed by Bush from the earliest days of his administration—one in which he sought to minimize his sense of legal and moral responsibility for executions. Bush repeatedly cited a Texas statute that says a governor may do nothing more than grant a thirty-day reprieve to an inmate unless the Board of Pardons and Paroles has recommended a broader grant of clemency. Admittedly, the governor's clemency authority is far more limited in Texas than in, for example, Illinois, where Governor George Ryan unilaterally commuted the death sentences of 167 men and women last January, shortly before leaving office. Nevertheless, Bush's failure to intervene was governed as much by personal choice as by legal limitation. Had Bush wanted to commute a sentence or otherwise prevent an execution, he unquestionably could have done so. Members of the BPP are appointed by the governor to six-year rotating terms. By the end of his governorship Bush had appointed all eighteen members. If he or Gonzales had had any serious doubts about a particular case, even on the morning of a scheduled execution, Bush could easily have prevailed on the board to reconsider the matter—to conduct an investigation, hold hearings, interview witnesses, or do whatever else was necessary to resolve those doubts.

In fact, on one highly controversial occasion, in 1998, Bush intervened with the board before it had a chance to make a recommendation to him. Henry Lee Lucas had been convicted of nine other murders (for which he was serving six life sentences, two seventy-five-year sentences, and one sixty-year sentence) but had also confessed falsely to hundreds more. After the 1984 trial at which Lucas was sentenced to death, it became apparent that he hadn't even been in Texas when the victim had been murdered; investigations by two successive state attorneys general subsequently concluded that Lucas had been wrongly convicted. Concerned that Lucas was about to be executed for a crime he hadn't committed, Bush's office let the BPP know that Bush was unwilling to see that happen. The BPP soon recommended (with a 17-1 vote) commutation to life in prison, which Bush then approved. Explaining his decision, Bush noted that the jurors at Lucas's trial "did not know" certain facts that came out only after trial. Gonzales could have raised a similar concern in his Terry Washington summary, but didn't.

At the outset of his administration Governor Bush presented a standard for clemency that all but ensured that few if any death sentences would be seriously examined. "In every case," he wrote in A Charge to Keep, "I would ask: Is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?" This is an extraordinarily narrow notion of clemency review: it seems to leave little, if any, room to consider mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination in jury selection, the competence of the legal defense, or disparities in sentences between co-defendants or among defendants convicted of similar crimes. Neither compassion nor "mercy," which the Supreme Court as far back as 1855 saw as central to the very idea of clemency, is acknowledged as being of any account.

The record suggests that what Bush described in his autobiography as "a fair hearing and full access to the courts" meant in reality nothing more than that a case had received some sort of legal attention at all state and federal levels. In the case of Karla Faye Tucker, the first woman executed in Texas in more than a hundred years, Bush wrote to at least two constituents that he had refused to grant a reprieve precisely because "the courts, including the United States Supreme Court," had "reviewed the legal issues in this case" and denied all appeals. But clemency is a political act, not a judicial one. By eliminating "legal issues" from executive consideration, Bush in effect refused to address what were often the condemned person's strongest claims. Indeed, the fact that courts have rejected a defendant's legal claims arguably places an added burden on a governor—as the conscience of the state and the literal court of last resort—to conduct a scrupulous review. This is especially true in Texas, where more than a third of executions in the United States since 1976 have occurred; where half of all capital cases are overturned on appeal because of errors during trial; where seven innocent men have been freed from death row, including one under Bush; where, according to The Dallas Morning News, nearly a quarter of the condemned were represented by attorneys who had been disciplined for professional misconduct; and where 30 percent of those executed under Bush between his inauguration in 1995 and June 11, 2000, according to the Chicago Tribune, were represented by attorneys who presented no mitigating evidence or only one witness during the sentencing phase of the trial. Given this environment, Gonzales's neglect of mitigating evidence in the clemency-review process is highly problematic.

But the real problem with citing thorough court review as a standard for denying clemency is that none of the 152 executions Bush approved would have landed on his desk had the cases not already passed through all the courts. To assert—as Bush did—that defendants have "full access to the courts" does not establish any sort of guideline for ensuring due process; it merely describes the judicial process.

Although Terry Washington's guilt was never seriously disputed, in at least two other capital cases profound doubts about guilt were raised by the defense but virtually ignored by Gonzales. In the case of David Wayne Stoker, for example, Gonzales devoted just eighteen sentences to the extraordinarily complex circumstances of the crime, leaving out essentially all the mitigating evidence and failing to address a multitude of questions about both the evidence against Stoker and his due-process rights. Ronnie Thompson, a key state witness, initially told the police, and then the court, that Stoker had confessed to a 1986 murder. But following Stoker's conviction Thompson recanted, explaining that he'd lied in court because the prosecutor had threatened to bring a perjury charge against him if he didn't stick to his original account. Bush should have been told that. During Stoker's trial, in 1987, Thompson's wife, Debbie, left him to move in with Carey Todd, the prosecution's chief witness; she got a piece of the Crime Stoppers reward that Todd received for naming Stoker. Gonzales failed to mention that drug and weapons charges against Todd were dropped the very day he testified against Stoker; and that Todd thus had an apparent motive for setting him up. Gonzales also failed to mention that a state investigator, a police officer, and Todd all lied in court about what Todd received for his testimony; that the jury wasn't told about Todd's possible motive for framing Stoker; and that James Grigson, a psychiatrist who testified that Stoker was a sociopath who would "absolutely" be violent again (thereby making him eligible for a death sentence), had never even examined Stoker. Grigson, whose expert testimony has helped send dozens of men to death row, earning him the nickname Dr. Death, had been expelled from the American Psychiatric Association two years before the Stoker case was reviewed by Gonzales and Bush, because his testimony had repeatedly been found to be unethical. Another expert medical witness against Stoker, Ralph Erdmann, had relinquished his medical license in 1994 after pleading no contest to seven felonies tied to falsified evidence and botched autopsies. A special prosecutor's investigation of Erdmann concluded that he falsified evidence in at least thirty cases, and that if "the prosecution theory was that death was caused by a Martian death ray then that was what Dr. Erdmann reported." All this information was in the public record, yet Gonzales mentioned none of it in his memorandum to Bush.

Stephen Latimer, who represented Stoker in his clemency appeal, told me recently that he received a call from Gonzales's office about a week to ten days before the execution, advising him that there would be no reprieve. The timing is significant, because Gonzales's execution summary is dated June 16, 1997, the day of Stoker's execution. If that decision had been made a week or more before Bush even read the summary, it is fair to ask whether Bush was actually in the loop or—as many suspected—had simply made clear to both Gonzales and the BPP that he wasn't interested in commutations.

The handling of Stoker's clemency appeal was not unusual. Consider the case of Billy Conn Gardner, whose death-penalty case was plagued by issues of incompetent counsel, dubious witness testimony, and unheard mitigating evidence.

Gonzales's report to Bush gave no sense of these circumstances. It matter-of-factly described the robbery of a high school cafeteria in Dallas, during which Gardner, wearing a stocking to obscure his face, allegedly shot and fatally wounded Thelma Row, sixty-four, a cafeteria worker. Also in the cafeteria at the time was Paula Sanders, a co-worker who had told her husband, Melvin, that several thousand dollars in daily cafeteria receipts were processed in a back room at the school. Melvin, who drove the getaway car, claimed that he had persuaded Gardner to participate.

Paula, who knew Gardner, said that she could provide no description of the assailant, because her back was turned. Before Row died, however, she had been able to describe a man with a "bony face ... and a two-inch goatee." Gonzales didn't tell Bush that the state was unable to produce a single witness who recalled ever seeing Gardner with a goatee, or that two witnesses to the shooting—Carolyn Sims and the school custodian, Lester Matthews—described a man with reddish-blond hair, whereas Gardner's hair was black. Matthews nevertheless positively identified Gardner as the killer, and Gonzales accepted this testimony at face value—although Matthews didn't know Gardner, admitted to having seen the killer for only three or four seconds, and didn't actually identify him until his third police interview, three months after the crime. Also missing from Gonzales's memo were the facts that only after prosecutors threatened to bring other charges against Melvin Sanders did he finger Gardner as the murderer, and that in exchange for this testimony Sanders received complete immunity from prosecution for the murder and probation for pending forgery and firearms charges. The state also agreed not to prosecute Paula Sanders.

Gonzales told Bush in his summary that Paula "testified that she was unaware of the robbery plans"; but he neglected to mention that she had received several phone calls only minutes before the robbery and shooting, and that according to Carolyn Sims (whose name is absent from Gonzales's report), she appeared "nervous and upset" after taking these calls. Sims was not deposed until years after the trial, during Gardner's habeas corpus appeal. More important, Gardner's lawyer never interviewed Paula Sanders and met with Gardner only once before jury selection, for fifteen minutes, raising an obvious suggestion of ineffective counsel—which Gonzales also dismissed with no discussion.

The case is a disconcerting tangle of speculation and uncertainty. What Gonzales should have made clear to Bush during the clemency review is that the case involved many unanswered and troubling questions. Gardner was put to death on February 16, 1995.

The Gonzales memoranda suggest that Gonzales was rarely, if ever, prompted to delve deeply into the cases he was reviewing for Bush. In his summary of the case of Carl Johnson, for example, dated September 18, 1995, the day before Johnson's execution, Gonzales failed to mention that Johnson's trial lawyer had literally slept through major portions of the jury selection. His memo on Irineo Tristan Montoya, dated June 18, 1997, the day of Montoya's execution, omits the single most important issue in the case: an alleged violation of international law, which had been brought to Bush's attention by, among others, the U.S. Department of State. His memo on Bruce Edwin Callins, dated May 21, 1997, the day of Callins's execution, fails to note that Callins's appeal to the Supreme Court generated the most famous death-penalty dissent in the past quarter century, written by Justice Harry Blackmun, a longtime death-penalty supporter.

Karla Faye Tucker's 1998 clemency review is one of the few in which any evidence exists of a significant discussion between Bush and Gonzales, and the only instance in which Gonzales is known to have provided any documentation beyond the execution summary. Bush cites the Tucker case as evidence of his compassion and his attentiveness to the process of clemency review. Gonzales has said that he and Bush began discussing Tucker's case months before the execution. Bush's autobiography devotes fifteen pages to Tucker. He writes that he anguished over his decision and had difficulty sleeping the night before her execution, and that signing off on it "was one of the hardest things I have ever done"; in the moments leading up to Tucker's execution he "felt like a huge piece of concrete was crushing me as we waited."

Why should Bush have been so tormented by assenting to Tucker's execution? According to the Bush standard for clemency, her case wasn't even worthy of consideration. Tucker didn't claim that she was innocent of murdering Jerry Lynn Dean and Deborah Thornton with a three-foot-long pickax in 1983. She said that she had been treated fairly by the courts and deserved her punishment. What helps to explain Bush's concern, of course, is that Tucker's case was the most highly publicized of any during his tenure as governor. In prison Tucker had become a born-again Christian, like Bush. Her execution was opposed by, among others, one of Bush's daughters and a slew of otherwise ardent death-penalty supporters, including Pat Robertson and Jerry Falwell, who became convinced that she was remorseful, repentant, and rehabilitated. Nevertheless, dozens of Texas death-row inmates could claim similar conversion experiences, remorse, and repentance; and dozens had compelling claims regarding innocence or due process.

More than anything else, the Tucker case illustrates how Bush sought to deny responsibility for executions. "I could not convert Karla Faye Tucker's sentence from death to life in prison [without the BPP]," Bush stated, citing Texas law. Gonzales made the same point in a letter to the papal nuncio in Washington, who before the BPP made its recommendation had written Bush on behalf of the Pope to solicit clemency for Tucker: "Ms. Tucker's sentence can only be commuted by the Governor if the Texas Board of Pardons and Paroles recommends a commutation of sentence." Of course, Bush did intervene in the subsequent Lucas case before hearing from the BPP.

Gonzales did not tell the papal nuncio that even after the BPP denied clemency the governor could have invoked a thirty-day reprieve to postpone this or any other execution. Bush didn't use this power because he had no interest in impeding the BPP, which was infamous for rubber-stamping executions. In a December 1998 district court hearing on a lawsuit brought by the death-row inmate Joseph Stanley Faulder (in whose trial a principal state witness was promised more than $10,000 by the prosecutor to testify), Judge Sam Sparks concluded, "It is abundantly clear the Texas clemency procedure is extremely poor and certainly minimal." Sparks found that "none of the members" of the BPP read clemency petitions in their entirety; that "a flip of the coin would be more merciful than these votes"; and that the board provided no rationale whatsoever for its clemency recommendations. "There is nothing," Sparks said during the hearing, "absolutely nothing that the Board of Pardons and Paroles does where any member of the public, including the governor, can find out why they did this."

Alberto Gonzales told me in 2000 that in his execution briefings he always presented Governor Bush with a "detailed factual background of what happened," along with "other outstanding facts or unusual issues." Yet a close examination of the written execution summaries he prepared for Bush certainly raises questions about the thoroughness of Gonzales's approach—and, ultimately, given the brevity of the summaries and the timing of their arrival at the governor's office, about the level of attention Bush could possibly have devoted to the clemency process. In his summaries of the cases of Terry Washington, David Stoker, and Billy Gardner, Gonzales did not make Governor Bush aware of concerns about ineffective counsel, essential mitigating evidence, and even compelling claims of innocence. These were all matters of life or death, requiring in-depth explanation and discussion, that no attorney in Gonzales's position should leave out of a written case summary or save for a thirty-minute oral briefing—especially if both are to be delivered on the very day of a scheduled execution. In a state where the criminal-justice system has erred with well-documented regularity, this was a grave failing."

The article can be found at:

http://www.theatlantic.com/doc/200307/berlow

Harold Levy...hlevy15@gmail.com;