Naked City

In the current edition of The Atlantic magazine, Alan Berlow writes about the content of the 57 executive clemency summaries of death row cases prepared by then-Gov. George W. Bush's general counsel, Alberto Gonzales, which Berlow obtained through Texas' open-records laws -- memos the state is now seemingly trying to keep out of the public's hands.

Gonzales -- the former Vinson and Elkins partner whom Bush subsequently appointed secretary of state and then a Texas Supreme Court justice, before asking him to come to Washington as his White House counsel -- is considered to be on Bush's short list of U.S. Supreme Court nominees. Back in Texas, as the guv's general counsel, Gonzales prepared clemency memos regarding Texas' death row cases for Bush to review prior to an inmate's execution -- memos that were, as Berlow writes, "Bush's primary source of information in deciding whether someone would live or die." In reviewing the memos, Berlow discovered that they contained a paltry amount of information "repeatedly [failing] to apprise the governor of the crucial issues in the cases at hand," such as "ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence." And so it went; Bush refused to stay executions in 56 of the 57 cases for which Berlow obtained memos.

Berlow wrote that although Gonzales intended the memos to remain confidential, he got them under the Texas Public Information Act. The governor's office fought disclosure, appealing Berlow's request to then-Attorney General John Cornyn for review -- an appeal Gov. Bush lost on June 23, 2000. In a letter to Assistant General Counsel Jack Hines, the AG's opinion read in part: "We have reviewed the submitted memorandum and find that it consists entirely of factual information," Assistant AG E. Joanna Fitzgerald wrote. "The memorandum contains no opinion or advice from the General Counsel, nor does it contain client confidences. Accordingly, the office may not withhold the memorandum."

Publication of Berlow's story -- as well as several of the actual memos -- in The Atlantic led the Chronicle to ask the governor's office for all of Bush's death-penalty clemency memos, as well as any similar memos prepared for Gov. Rick Perry by General Counsel Bill Jones. But on June 23, we received a copy of a letter from Assistant General Counsel J. Kevin Patterson to AG Greg Abbott requesting that the AG review our request. In short, the new governor is once again claiming, for the same reasons rejected by Cornyn's office in 2000, that these memos are exempt from disclosure under the Public Information Act. The AG's opinion is due by Aug. 25. In the meantime, Berlow's article can be found online at www.theatlantic.com/issues/2003/07/berlow.htm, and copies of three of the clemency memos in question can be found at www.theatlantic.com/issues/2003/07/berlow-documents.htm.