by Erica C. Barnett
There's an old cliché in Texas that likens its execution rate to a speeding locomotive. Equal parts convention and logic, the reasoning behind the old saw goes like this: You can't stop a speeding train once it picks up steam, and once it's going, it literally plows down everything in its path. Likewise, the Texas death row system, which has been dubbed "the Execution Express" by both detractors (who wish Texas would put the brakes on) and proponents (who complain that it doesn't go fast enough). After picking up momentum in 1995 and reaching top speed in 1997, when Texas executed 37 prisoners, the highest number for any state since executions resumed in 1977, the Texas death system appeared as invincible and deadly as any speeding train; its shiny exterior was invulnerable even to the religious-conversion appeals of pickax murderer Karla Faye Tucker, and has deflected numerous court challenges since first coming under close examination during Gary Graham's appeal in 1994.
Attorney Maurie Levin holds a photo of her client, Lesley Gosch, plaintiff in the clemency lawsuit before his execution last April.
photograph by Jana Birchum
But there may be signs that this old locomotive is starting to show some rust. The intense scrutiny that has been brought to bear on the Board of Pardons and Paroles and its closed-door policies in recent weeks is largely without historical precedent, and it marks a significant shift in focus for those old-guard death penalty opponents who have been fighting the system for years. Previously, when faced with the overwhelming reality that upward of 80% of Texans support capital punishment, they pointed to the fact that Texas law does not provide the option of life without parole and forbids lawyers from telling jurors that a life sentence means at least 40 years; now, they're homing in on the issue of open government as it applies to a post-conviction remedy, a principle that even conservative Texans may be able to embrace.
Death row lawyers are challenging two primary components of Texas' clemency process: first, parole board members do not meet, either in person or by telephone, before faxing in their clemency decisions to the governor; and second, they provide no reasons for their votes, making the validity of their decisions suspect and their motivations cryptic if not utterly impenetrable. This system, which has endured in its present form since 1989, has resulted in only one recommendation for clemency: that of Henry Lee Lucas, whose sentence Gov. George Bush commuted after a 17-1 board vote last year.
Although board chairman Victor Rodriguez insists that Lucas' commutation was "not about guilt or innocence" but about "alternative punishment," several board members have testified that they granted Lucas' clemency because of compelling evidence that he was innocent of the crime for which he was sentenced to die. If that is the case, say several capital attorneys -- if clemency is a "fail-safe" ensuring that innocent prisoners aren't executed without cause -- then parole board members should be willing to look at new evidence when deciding if a prisoner will live or die.
Debbie Crosby, a Central Texas homemaker whose brother, David Stoker, was executed in 1997, says her brother might have been spared if board members had been willing to carefully consider his petition, which contained evidence that did not come out at Stoker's trial. Convinced that the never-seen evidence would exonerate her brother, Crosby says, she wrote a letter to every board member asking them to review the case. Only one, Thomas Moss, wrote back. Moss was the only board member who voted for clemency in Stoker's case. "I was told that the decision was unanimous, but later (Moss) wrote me a letter saying he voted against the death penalty and that was the first time he ever had, because he believed my brother was innocent," Crosby says. "He took the time to read my brother's case, and consider how he voted. ... If they would take the time to look, maybe more would vote that way."
After talking to other members of the board, Crosby became convinced the board did not thoroughly examine the evidence in her brother's petition. Crosby says that one board member, Charles Shipman, told her during a telephone call that he didn't even read the information; in fact, she says, he sounded offended that she had attempted to challenge his decision. "I was a family member and I had insulted him by asking him. Life or death is about the most you can do, and he's paid to do that," Crosby says. "When you're taking a person's life and they don't even take the time to read it, that's disgusting. You have to start to wonder if they do their jobs at all."
Maurie Levin, an Austin lawyer who helped challenge the parole board in state and federal court, says the problem is that there's no way of knowing if they do. "In Texas, where we kill more people than any other state, the system for mercy is something we should be ashamed of," Levin says. "I believe the board is accountable to the public and to the victim's family, and the method through which clemency is processed now allows them to hide from accountability."
Resistant to Change
Board members insist that their refusal to divulge their procedures has more to do with ensuring that members do not influence one another than with hiding from accountability, but this concern has not been reflected in their lopsided votes against clemency, which have been virtually unanimous in 75 capital cases since 1993. The board is also unanimous in its resistance to changing its secretive procedures, which were lambasted harshly in Sam Sparks' federal district court in December and more mildly rebuked by state District Court Judge Scott McCown last week.
In federal court, two death row inmates -- Danny Lee Barber and Joseph Stanley Faulder -- took advantage of a recent Supreme Court ruling called Woodard v. Ohio Adult Parole Authority, which gave the judicial branch the authority to review due process claims, to claim that the board's "arbitrary and capricious" procedures violated their right to due process. In that case, Sparks ruled that although "the Texas clemency procedure is extremely poor and certainly minimal," it meets the standards for "minimal due process" as established in the Supreme Court case. However, Sparks suggested in his ruling, the board could prevent future challenges to its clemency procedures "by simply adapting the current procedures to require members to succinctly state their reasons for recommending or not recommending clemency." Currently, the form which board members use to fax in their votes on clemency matters is a simple ballot, with lines for board members to sign indicating their recommendation.
The ruling did nothing to change the board's procedures, but the hearings did create a few important precedents. For one thing, it was the first time board members had ever been called to testify about their procedures in court; the testimony of a dozen board members provided the clearest picture yet of the board's clemency procedures. "Just having a hearing and having the board members come in and testify and expose the farce that is clemency in Texas is very significant," said Minneapolis attorney Sandra Babcock, who is representing Faulder in his death row appeals. All the members (except board chairman Rodriguez, whose testimony Judge Sparks called "suspect") testified that they usually do not read every page of an inmate's clemency petition; often, they testified, they vote on clemency matters before even receiving all of the relevant information -- such as, in Faulder's case, a letter from Secretary of State Madeleine Albright imploring Gov. Bush to grant a stay. Some even admitted that they took only a few hours to review Danny Lee Barber's file, a stack of papers over four inches thick. "It's insulting to me that they're making life and death decisions on the cases when they don't carefully consider the evidence," Babcock says.
Moreover, the federal court case showed clearly that board members and their staff workers make mistakes; in the case of Faulder, a Canadian on death row who was never allowed to contact his consulate, and whose existence was concealed from Canada for 15 years in violation of the Vienna Convention, those mistakes included the omission of at least 10 significant letters from his clemency petition file. Those documents included letters from Faulder's friends and family members, a letter from a church association representing 10,000 Texas congregations, and several missives from doctors and the American Bar Association disavowing the testimony of Dr. James Grigson, aka "Dr. Death," who was disbarred from the American Psychiatric Association for testifying falsely in dozens of cases about the future dangerousness of convicted murderers. Grigson's testimony, lawyers say, was a crucial factor in Faulder's death sentence; if board members had known he was disbarred, they contend, they might have decided differently on his clemency petition.
Another thing that was abundantly clear after the two days of hearings was how little formal guidance board members receive in making their decisions. "There are a lot of things you consider in each case, because each case is very different," said board member Sandie Walker in her testimony. "I don't think you could set out guidelines. ... I think that's why we have a board. There are 18 of us and we all bring our life experiences and all the choices we have made in our life and all of these things come to bear on our decision." Board member Daniel Ray Lang, a criminal defense attorney, was even more circumspect: "You can't really define justice and mercy, but when you see it, you know it," he said. "It's an abstract concept." Lawyers for the inmates say this lack of guidelines is exactly why the board, whose members receive only one week of training to prepare them for the 59,000 parole cases and 400 clemency petitions they will be faced with every year, needs to meet in public and establish criteria for its actions. "It seemed to me in listening to their testimony, the only thing they look at is whether they had a trial, and other board members only look at whether the person is guilty or innocent," says Babcock. "Historically, it's been about mercy and redemption and rehabilitation, and these board members have no concept of those philosophical ideas."
Attorney Kurt Sauer
photograph by Jana Birchum
Overwhelming evidence suggests that one philosophical idea -- mercy -- plays little role in most board members' clemency determinations; but death row attorneys insist it should. If a death row client is not innocent -- and Barber's attorney Kurt Sauer acknowledges that most are not -- the only reason the board might grant clemency is mercy, which Sauer says appears to be in short supply. "If there's a question about guilt or innocence or somebody hasn't gotten due process, we're not showing them mercy by granting them clemency. We're doing something that only a barbarian would do otherwise," Sauer said in court. "If Ms. [Karla Faye] Tucker didn't get it, we don't have it."
Victor Rodriguez, who testified at length in Sparks' courtroom, counters that the board is willing to consider any information submitted in a clemency petition; the challenge, Rodriguez says, is convincing board members that a guilty death row inmate deserves mercy, which he views as an act of grace. "Our responsibility is to consider the petition -- if they argue rehabilitation, improvement, religious conversion, it is considered," Rodriguez says. "They've argued all kind of things before us. Some have been successful. ... My job is to look at the question of the case and decide it in the best possible way. It is not my fault that they have not presented good enough cases for clemency."
Sparks' rejection of the lawyers' claims sent the case catapulting into state court, where the lawyers had, they felt, a stronger legal case. This time, the issues were more clearly defined: Did the board violate the Texas Open Meetings Act by refusing to hold hearings and make its deliberations open to the public? and, did it violate the Texas Constitution, which states that "the Legislature shall by law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for its actions"?
The lawyers for the death row inmates in the state class action suit pointed to the fact that the board members' clemency voting sheets -- although recently amended to include a "comments" line -- do not require board members to provide reasons for their actions. This makes filing a clemency petition virtually impossible, lawyers said, because they have no idea what criteria the board has considered when it denies clemency; moreover, since no investigation is done, board members have no way of verifying whether the information in a petition is accurate, leaving that assessment at the whim of the member reviewing the petition. The state's attorneys, led by assistant attorneys general Reid Lockhoof and Dewey Helmcamp, countered that the board only has to give "written recommendation and advice" to the governor, as required in the constitution, when it votes to recommend clemency -- not when it chooses to maintain the status quo. Further, they said, the state's government code says that board members "are not required to meet as a body to perform the members' duties in clemency matters."
Although Kurt Sauer, representing the death row inmates, argued that McCown should consider the legislative history of the law, which was amended specifically "to not exempt clemency actions from the open meeting law," the judge sided with the parole board, agreeing that the constitution "does not require the board to give reasons when it denies clemency because in such a circumstance it has taken no 'actions.'" Moreover, McCown's ruling said, the Legislature provided the board with "a big loophole" in allowing it to avoid meeting as a body; "if no meeting is required, no open meeting is required."
Board members were buoyed by the ruling, which upheld all of their longstanding claims. Board chairman Rodriguez says that although "there are things for which we are subject to open meetings. ... We are not like any other entity in the state in the sense that we are not required to conduct board business in public." But that's no different, Rodriguez says, from the secrecy maintained by a jury or, for that matter, the Supreme Court. "God only knows what goes on inside that jury room. They don't meet in public. There are reams of information presented to them in the Supreme Court and they just say no. They don't have to explain." Lawyers pick on the board, Rodriguez says, because the courts allow them to. "I don't see them taking Judge A or Judge B to task, saying they didn't get to come and speak before them," he says. "I don't see them complaining how bad these guys are, how they wouldn't let them speak before the jury ... I am at odds to explain to you why they do that." The board, whose members unanimously testified that they feel more comfortable making their decisions individually and without deliberation, has only held one public hearing, called by then-Gov. Ann Richards in 1992 to address questions in death row inmate Johnny Garrett's case which had never come out at trial.
For the time being, it looks like the board's secretive process will continue; an appeal is possible, but lawyers on the case say they don't know yet if they will attempt to make one. Unlike two previous state court rulings, McCown's decision places the onus of changing the clemency system on voters, not the courts, leaving the lawyers on the case little wiggle room for any future legal maneuvers. "It belongs to the citizens to express their judgment through their assembled representatives in the 76th Legislature as to whether this system adequately ensures that Texas is able to determine when mercy should be given," the ruling says. Attorney Maurie Levin says the ruling smacks of political considerations. "Our judges are elected, so you can never discount the fact that politics play a part in their decisions," she says. "Judge Sparks' decision was a much stronger decision, and I think that has to do with the fact that he's not elected." The decision was at the very least a crushing blow for those battling for an open clemency process, made all the more painful, Levin says, by the fact that McCown seemed ready to rule in the lawyers' favor. "It's hard not to believe you have a chance when you feel that the law is behind you so strongly. I should have known better by now," says Levin, who has argued state and federal capital cases for years. "I was so mad at the decision. ... He led us to believe he was doing something else. Even the state thought we had won."
There are a few hopeful signs for death row inmates and their lawyers, though those are few and far between. Board chairman Rodriguez has indicated, as he has in the past, that he is warming to the possibility of making minor changes to the board's procedures. "We want to do everything we can to make sure we are as close to what (Sparks) wants as possible," Rodriguez says. According to the board's assistant director Hugh Campbell, several changes are planned for the next three months, including further modifications to members' voting forms and the installment of a statewide computer network that will allow board members instant access to clemency petitions and supplemental information as they arrive.
Meanwhile, public opinion appears to favor a more open process; the state's major dailies have all printed editorials chastising the board for its refusal to adhere to open meetings law. And former attorney general Dan Morales, as he was leaving office, told The Dallas Morning News that he thought the system could be constructively changed. "There's no question in certain cases that the process does not appear to be an absolutely fair and equitable system," the paper quoted Morales as saying. On the whole, however, the balance of court and governmental opinion weighs heavily in the parole board's favor. Governor Bush has stated repeatedly that he supports the current system, as long as doubts about guilt and whether the inmate had access to the court system are resolved. And new attorney general John Cornyn, who criticized the parole board's decision to commute Henry Lee Lucas' sentence during his campaign for office, has indicated that he, too, supports the current system. "We believe the procedures are in keeping with the state constitution and the federal constitution," says Cornyn's spokesman Ted Delisi. "[Cornyn] is the state's top lawyer and is supposed to enforce the laws as the Legislature sees fit. ... He will represent the state" in court, Delisi says.
The battle, inmates' lawyers say, is far from over; they will continue to fight for their clients in the courts. But even death row attorney Sauer admits that it will take a legislative remedy, not a judicial stopgap, to stop the current rubber-stamp rejection process in its tracks. The question, Sauer says, is "until that happens, what do we do? Do we make them follow the laws and have open meetings until someone decides to do something about it, or do we just keep killing people until we do something?"
Next Stop: The Lege
Several legislative remedies are already in the works, including two bills by state representative Elliott Naishtat, which he is attempting to push forward as emergency legislation this session. The first, House Bill 397, would require the board to hold open hearings when considering clemency petitions and provide reasons for its actions; the second, HB 398, would require the board to consider several specific criteria, including unresolved legal issues, social history, mental illness and rehabilitation, when making clemency recommendations. Despite the two discouraging court decisions, Naishtat says he will "vigorously pursue" his legislation this session "regardless of how appellate courts choose to evaluate Judge McCown's ruling," in which Naishtat says McCown used "extremely and unnecessarily legalistic reasoning" to arrive at his conclusions. "It appears to me that when the result of a board's determination is the taking of a person's life, you cannot say that the board is not taking an action," Naishtat says; furthermore, "to conclude that the board does not meet and is therefore not required to comply with the Open Meetings Act is a stretch" of what the law requires. Despite the ruling's generally discouraging tone, Naishtat says he is encouraged by parts of McCown's decision and by the public's support of open clemency procedures. "I expect members of the House and Senate to give these bills most serious consideration, and I'm confident that in one form or another they will be passed," he says.
"We are not like any other entity in the state in the sense that we are not required to conduct board business in public. -- Parole Board Chair Victor Rodriguez
photograph by Jana Birchum
But others involved in the case say the effects of McCown's ruling are likely to snowball out of the judicial system and into the Lege. "I think they're damaged by the ruling," says attorney Jim Harrington, who intervened in the case on behalf of his client, Gary Graham, whose execution was halted by the Fifth Circuit last week. "You take away the sword over [board members'] heads when you say it's not unconstitutional. What's the incentive for the Legislature to do anything then?" Even if Naishtat's bills do pass, it is still unclear whether the state will challenge the Legislature's authority, because the board contends that only the executive branch has the power to regulate its actions. Although Naishtat says the state's lawyers have given him no reason to expect a challenge, he acknowledges that much of the decision is in the hands of attorney general Cornyn, who supports the current procedure.
Naishtat's legislation won't be the last time death penalty issues come up this session. Already, a bevy of capital punishment-related bills wait in the wings. One bill by representative Pete Gallego would prohibit the execution of inmates deemed "mentally incompetent" by a doctor; another by Eddie Lucio in the Senate would create a true "life without parole" option for jurors to consider. If that bill fails, Naishtat has filed a bill in the House which would allow lawyers to tell juries that an inmate sentenced to life in prison will not be eligible for parole for a minimum of 40 years, a power that defense lawyers currently do not have.
Death row defense lawyers like Sauer and Babcock say they're not holding their breath for legislation to pass; in their world, "hope" is a word used only sparingly, in reference to 30-day reprieves and last-minute stays, never permanent solutions. With a client survival rate that hovers around 1%, Babcock says, "You just end up walking around angry all the time. It just seems so hopeless. It's hard to keep your energy up when you've just lost another client."
Nevertheless, Sauer says, the fight will continue beyond the most recent round of court rejections. Even if an open process would not spare, in the short term, a single inmate's life, Sauer says the value of open government is greater than that of any individual case. "The thing that really bothers me is, you've got a state agency being paid taxpayer money to keep its decisions secret from the taxpayers," Sauer says. "In every city council, every government body in the state, some 50-person town -- you know, Dancer, Texas -- they all follow this [open meetings] law. Only the board doesn't. What they're doing could not be so important that they don't have to comply."