[North-NV-Greens] Fwd: Death in Texas by Sister Helen Prejean (NYRB)

Thu Dec 30 22:46:48 PST 2004

>
>
>Death in Texas
>By Sister Helen Prejean
>
>New York Review of Books
>Volume 52, Number 1 
 January 13, 2005
>
>1.
>
>In the twenty-first century, a state governor
>represents the last vestige of the "divine right of
>kings," because he has absolute power over life and
>death-- especially when such power is entrusted to
>politicians motivated more by expediency than by
>conscience. Faced with a pending execution, no governor
>wants to appear callous about human life. So governors
>appoint pardons boards and meet with legal counselors,
>who take the political heat for controversial cases.
>All governors claim to agonize over death penalty
>decisions. All claim to scrutinize every possible angle
>of the cases of condemned persons facing execution
>under their watch.
>
>George W. Bush during his six years as governor of
>Texas presided over 152 executions, more than any other
>governor in the recent history of the United States.
>Bush has said: "I take every death penalty case
>seriously and review each case carefully.... Each case
>is major because each case is life or death." In his
>autobiography, A Charge to Keep (1999), he wrote, "For
>every death penalty case, [legal counsel] brief[s] me
>thoroughly, reviews the arguments made by the
>prosecution and the defense, raises any doubts or
>problems or questions." Bush called this a "fail-safe"
>method for ensuring "due process" and certainty of
>guilt.
>
>He might have succeeded in bequeathing to history this
>image of himself as a scrupulously fair-minded governor
>if the journalist Alan Berlow had not used the Public
>Information Act to gain access to fifty-seven
>confidential death penalty memos that Bush's legal
>counsel, Alberto R. Gonzales, whom President Bush has
>recently nominated to be attorney general of the United
>States, presented to him, usually on the very day of
>execution.[1] The reports Gonzales presented could not
>be more cursory. Take, for example, the case of Terry
>Washington, a mentally retarded man of thirty-three
>with the communication skills of a seven-year-old.
>Washington's plea for clemency came before Governor
>Bush on the morning of May 6, 1997. After a thirty-
>minute briefing by Gonzales, Bush checked "Deny"-- just
>as he had denied twenty-nine other pleas for clemency
>in his first twenty-eight months as governor.
>
>But Washington's plea for clemency raised substantial
>issues, which called for thoughtful, fair-minded
>consideration, not the least of which was the fact that
>Washington's mental handicap had never been presented
>to the jury that condemned him to death. Gonzales's
>legal summary, however, omitted any mention of
>Washington's mental limitations as well as the fact
>that his trial lawyer had failed to enlist the help of
>a mental health expert to testify on his client's
>behalf. When Washington's postconviction lawyers took
>on his defense, they researched deeply into his
>childhood and came up with horrifying evidence of
>abuse. Terry Washington, along with his ten siblings,
>had been beaten regularly with whips, water hoses,
>extension cords, wire hangers, and fan belts. This was
>mitigation of the strongest kind, but Washington's jury
>never heard it. Nor is there any evidence that Gonzales
>told Bush about it.
>
>Bush wrote in his autobiography that it was not his job
>to "replace the verdict of a jury unless there are new
>facts or evidence of which a jury was unaware, or
>evidence that the trial was somehow unfair"[2] (italics
>added). But new information about a mentally retarded
>man's battered, abused childhood that his jury never
>got to hear--wouldn't that qualify?
>
>When Berlow asked Gonzales directly whether Bush ever
>read the clemency petitions, he replied that he did so
>"from time to time." Instead, Bush seems to have relied
>on Gonzales's summaries, and they clearly indicate that
>Gonzales continuously sided with the prosecutors. One
>third of his summary of Terry Washington's case is
>devoted to a detailed description of the gruesome
>aspects of the crime, while he fails to mention
>Washington's mental limitations and his miserably
>ineffective defense lawyer. In response to Berlow's
>direct question, Gonzales admitted that his conferences
>with Bush on these cases typically lasted no more than
>thirty minutes. Berlow confirmed this for himself when
>he looked at Bush's appointment calendar for the
>morning of Washington's execution and saw a half-hour
>slot marked "Al G--Execution."
>
>To distance himself from his legal and moral
>responsibility for executions, Bush often cited a Texas
>statute that says a governor may do nothing more than
>grant a thirty-day reprieve to an inmate unless the
>Texas Board of Pardons and Paroles has recommended a
>broader grant of clemency. But any time he wanted to,
>Bush could have commuted a sentence or stopped an
>execution. By the end of his governorship Bush had
>appointed all eighteen members of the board of pardons.
>He could easily have ordered a thirty-day reprieve and
>gotten word to the board that he had doubts about the
>fairness of a case and wanted an investigation and
>hearings. But the Texas pardons board has been a farce.
>In my home state the Louisiana Board of Pardons and
>Paroles meets and holds hearings. True, they routinely
>deny clemency, but they at least give the appearance of
>being a real, working board. The full Texas pardons
>board never meets to consider a death sentence. A few
>of them talk to one another on the phone. Sometimes. No
>one knows whether the clemency appeals are even read.
>As governor, Bush did nothing to reform the board's
>procedures.
>
>In the Henry Lee Lucas case in 1998, Bush showed where
>the real power lay. He intervened with the Texas
>pardons board before they had a chance to make a
>recommendation, and after his intervention, the board
>handed him the decision he wanted: a 17-1 vote for
>commutation of Lucas's death sentence. The Henry Lee
>Lucas case gained national attention when it came to
>light that Lucas had been condemned to death for a
>Texas murder he couldn't possibly have committed, since
>he wasn't in the state at the time. Additionally, it
>was clear that Lucas would never be a threat to society
>because he was already serving six life sentences for
>other murders, which he may or may not have committed,
>since on a fairly regular basis he confessed falsely to
>hundreds of murders. Bush pointed out that jurors at
>his trial "did not know" certain facts that later came
>to light.
>
>To make sure that he never had to examine death
>sentences seriously, Governor Bush used a legal tactic
>similar to the one used by the US Supreme Court to
>block death row petitioners' access to constitutional
>claims. He restricted the standard for clemency so
>severely that no petitioner could qualify. He stated
>that since the courts had "thoroughly examined" every
>obscure detail of a death row petitioner's claims and
>found no grounds for injustice, it was not his place to
>"second-guess" the courts. In his autobiography Bush
>wrote,
>
>     In every [death] case, 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?
>
>But, of course, the courts would already have reviewed
>and rejected the legal issues of death row petitioners'
>cases before they landed on Bush's desk. As governor,
>Bush was literally the court of last resort for a
>condemned man or woman, vested with authority to
>dispense mercy or withhold it, according to his
>personal judgment. Unlike the courts, he was not
>restricted to pure legalities. As far back as 1855, the
>US Supreme Court saw compassion and mercy as central to
>the exercise of gubernatorial clemency. This means that
>governors and their boards are free to consider any
>basis for mercy: mental handicaps, mental illness,
>childhood abuse, incompetence of defense counsel,
>remorse, racial discrimination in juries, signs of
>rehabilitation.
>
>Not uncommonly, such new mitigating facts come to light
>only years after the trial, facts that the trial jury
>has never heard and that appeals courts, following
>"procedural logic," routinely refuse to consider. In
>the commutation of Lucas's sentence, Bush well knew how
>to use "new facts" that the trial jury "did not know"
>to persuade the Texas pardons board to do his bidding.
>It was not a lengthy, morally complex process. Bush
>stated his request and his board delivered.
>
>If the jury that sentenced Karla Faye Tucker--another
>Texan whose death warrant Bush signed--had known of her
>drug-ridden childhood prostitution, would they have
>found mitigating circumstances to spare her life? And
>if, as her jury considered "future dangerousness," they
>could have been made aware of the potential for good in
>her character that would later make her such an
>exemplary prisoner, would they still have voted to kill
>her? The jury, deprived of foresight and without
>thorough investigation into Karla Faye's childhood, did
>not have access to these "new facts," but George W.
>Bush did. In the Lucas case, when "new facts" presented
>themselves, Governor Bush requested the Texas pardons
>board for commutation. When "new facts" in Karla Faye
>Tucker's case came to Bush's attention, he turned away,
>claiming that he was bound to follow the courts'
>decisions.
>
>Berlow writes, "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...--to conduct a scrupulous review." How, then,
>could Bush's legal counsel, Alberto Gonzales,
>systematically neglect to provide mitigating evidence
>or "new facts" that the petitioners' juries had never
>heard? For the man who said that the nature of the war
>on terror "renders obsolete [the Geneva conventions']
>strict limitations on questioning of enemy prisoners"
>and called the conventions "quaint" when issuing
>guidelines for the treatment of prisoners at
>Guant·namo, this is not surprising.
>
>for the rest of this article, go to
>
>http://www.nybooks.com/articles/17670
>_______________________________________________________
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-- 
Paul Etxeberri

"Forests precede civilizations and deserts follow"   ---Chateaubriand