Being charged with a capital crime is surely bad news anywhere but there’sno place worse than Texas. After the state Board of Pardons turned downKarla Faye Tucker’s petition, she became the 146th person executed by Texasafter the Supreme Court voted to reinstate the death penalty in 1976. Texasis also a trendsetter when it comes to killing the mentally retarded andchildren. (Incidentally, the death penalty does not appear to be a deterrentin Texas. Murder rates in Dallas, Houston and San Antonio are higher thanthey are in New York, where the death penalty was reinstated only last year.)
Texas, though, merely reflects what is true nationwide. The chance thata person charged with a capital crime will live or die depends enormouslyon race, social class and perhaps most importantly of all, where the crimewas committed. In calling for a moratorium on the death penalty last year,the American Bar Association said, “Today, administration of the deathpenalty, far from being fair and consistent, is instead a haphazard mazeof unfair practices with no internal consistency.”
For this report, we’re grateful to Stephen Bright of the Southern Centerfor Human Rights in Atlanta and two death penalty lawyers in Texas, DavidDow and Brent Newton, who provided us with much of the information in thisarticle.
When it comes to the death penalty, Texas is in a league of its own andthe situation there is growing worse. Of the 146 people executed in thestate since the death penalty was reinstated, 37 were killed in 1997 alone.
Racism plays a huge role in determining who dies. In one glaring example,Texas law enforcement authorities picked Clarence Lee Brandley from amongmany suspects in a circumstantial case of rape and murder of a white woman.As authorities told Brandley- convicted but released in 1989 after beingexonerated-“You’re the nigger, so you’re elected”. Dallas hassent dozens of people to death row but never for killing an African American.Harris County (Houston) alone is home to 40 percent of all African Americansin Texas on death row. Blacks make up only 20 percent of the county’s populationbut about two-thirds of its death row inmates.
Texas also boasts a number of mad dog district attorneys. In Dallas,the DA’s office prepared a manual for new prosecutors, used until the early1990s, which said: “You are not looking for a fair juror, but rathera strong, biased and sometimes hypocritical individual who believes thatDefendants are different from them in kind, rather than degree…You arenot looking for any member of a minority group which may subject him tosuppression-they almost always empathize with the accused…Minority racesalmost always empathize with the Defendant.”
Houston has executed more people since the re-imposition of the deathpenalty than any state except, of course, Texas. The Texas Observer recentlydubbed Hunstville prison near Houston, where Karla Faye Tucker was executed,”the most active human abattoir in North America.”
The man most responsible for this dubious distinction is Johnny Holmes,who has headed the local DA’s office since 1979. Holmes hangs a sign inhis office’s death penalty unit entitled “The Silver Needle Society”which contains a list of all the people killed by lethal injection in thecounty. Holmes’s office also reportedly throws champagne parties on thenight of scheduled executions.
Texas DAs are exceeded in their zeal for the death penalty only by Texasjudges. The most famous case is that of Harris County District Judge WilliamHarmon. During the 1991 trial of Carl Wayne Buntion, Harmon told the defendantthat he was “doing God’s work” to see that he was executed. Accordingto a law review article by Brent Newton: “Harmon taped a photographof the ‘hanging saloon’ of the infamous Texas hanging judge Roy Bean onthe front of his judicial bench, in full view of prospective jurors. Harmonsuperimposed his own name over the name Judge Roy Bean that appeared onthe saloon, undoubtedly conveying the obvious.”
Harmon also laughed at one of Buntion’s character witnesses and attackedan appeals court as “liberal bastards”and “idiots” afterit ruled that he must allow the jury to consider mitigating evidence.
In a 1994 case, the defense requested that a number of death row inmatesbe brought to the courthouse. “Could we arrange for a van to blow upthe bus on the way down here?” Harmon asked.
Another reason Texas kills so many people is the abysmal quality of manyof its court-appointed attorneys. Attorneys in Texas have been drunk duringtrial (one even had to file an appellate brief from the drunk tank), hadaffairs with the wives of defendants, and not raised a single objectionduring an entire trial. In all these cases, appeals courts have ruled thatdefendants were provided with a competent defense.
In three death penalty cases in Houston, defense attorneys fell asleepduring trial (as Stephen Bright says, “this gives new meaning to theterm dream team”). The trial judge refused to dismiss the case of GeorgeMcFarland, convicted of a robbery-killing, by saying that the state hadfulfilled its obligation of providing McFarland with counsel and “theConstitution doesn’t say the lawyer has to be awake”. An appeals courtin Texas upheld the death sentence on McFarland and the Supreme Court refusedto review the case.
Attorney Joe Frank Cannon has represented ten men sentenced to death.”Represent” here is a generous description. In the case of CalvinBurdine, the court clerk testified that Cannon “was asleep on severaloccasions on several days over the course of the proceedings”. Cannon’sentire file on the case consisted of three pages of notes. (The prosecutorin that case urged the jury to choose death over life in prison becauseBurdine was homosexual. “We all know what goes on inside of prisons,so sending him there would be like sending him to a party”, he said.)
During the past eight years, only the United States, Saudi Arabia, Iran,Iraq and Yemen have executed children (those who were under 18 at the timeof the crime).
Texas is a leader in the practice of killing children. Johnny Frank Garrettwas executed in 1992 for the rape-murder of a Catholic nun, committed whenhe was 17. As a child, Garrett was beaten by a series of stepfathers andseated on a hot stove because he would not stop crying. He was sodomizedby a number of adults and forced to perform pornographic acts (includinghaving sex with a dog) on film.
Garrett suffered from paranoid schizophrenia and while on Death Row regularlyconversed with a dead aunt. Karla Faye Tucker got two abstentions from theTexas Board of Pardons and Parole; Garrett, executed in 1992, was shut out17-0.
Joseph John Cannon sits on Death Row in Texas for a crime he committedas a teenager. He suffered serious head injuries after being hit by a truckwhen he was four and subsequently spent years in an orphanage. Between theages of seven and seventeen, Cannon was sexually abused regularly by hisstepfather and grandfather. At the age of fifteen he tried to kill himselfby drinking insecticide. None of this information was presented to the juryin Cannon’s case.
How to account for the singularity of Texas? We talked to A. RichardEllis, an attorney based in San Francisco who handles death penalty appealsin states including California and Texas. He underlines the coincidencein Texas of two lethal traditions, namely southern racism and hang ’em highfrontier justice.
Though Ellis stressed that there are dedicated lawyers of high qualityin Texas, such as those working in the Texas Resource Center (which likeother such appeals projects across the country lost its federal fundingin 1995), the general level of legal representation in Texas is awful. “I’veseen incredibly slipshod work there. A man on Death Row just sent me hisstate habeas appeal, which he saw as a ticket to lethal injection and hewas right. It was 50 large-type pages of illiterate nonsense, and this froman attorney who lectures on habeas!”
Ellis says the state habeas appeal these days is often a convicted person’sonly chance at reprieve, in which fact-driven issues (such as ineffectivecounsel) impinging on a person’s constitutional right to a fair trial canbe raised. “In California, an appeals attorney can regard $35,000 asa reasonable (state-provided) opening budget, with the whole budget goingto $150,000 and up. I just had a Texas case where I needed to get an expertwitness, which could cost around $15,000. The Texas Court of Criminal Appealsgave me a total budget for the entire appeal of $5,000.”
Of course, appeals face desperately long odds in all states. But in California,which actually has more people on Death Row than Texas-477 to 428-thereare far more lawyers and investigators working to keep their clients alive.As a result, California has only executed four people since the death penaltywas reinstated, a fraction of the number killed in Texas.
Texas is the only state where a judge or state attorney general can setan execution date long before the appeals process has been exhausted. Ellisnoted one case where a condemned man saw his federal appeal go through districtcourt, circuit court and the US Supreme Court in less than a month, withthe last two appeals occuring on the day of his execution. The Supreme Courtfinally granted a stay 45 minutes after the scheduled hour of his death(authorities were good enough to delay the injection while they waited fora ruling to come down).
California is as eager as Texas to kill people. But there’s a large andactive legal opposition, plus the all-important presence of money. As Ellispoints out, “In California, I can have a co-counsel. In Texas, I’mthe whole team. Texas is an unbelievable death machine.”
?A Brazen Racial Animus
To be sure, Texas faces stiff competition in laying claim to the titleof the Death State. In Georgia, all 46 state district attorneys-who aloneare charged with deciding whether to seek the death penalty-are white while40 percent of those sentenced to death since 1976 have been black. No whiteperson has been executed for the murder of a black in Georgia, nor has thedeath penalty ever been sought in such a case. Of the 12 blacks executedin Georgia since 1983, six were sentenced in cases where prosecutors hadsucceeded in removing all potential black jurors.
Nor does the warden of Georgia’s state prison system, a mortician, inspiregreat confidence. After being appointed he declared that many prisonersin the state are not fit to kill. He later led a raid on one penitentiaryin which, according to 18 employees, prisoners who were handcuffed or otherwiserestrained were beaten.
The U.S. Supreme Court has ruled that people sentenced to death are notentitled to representation after the post-conviction phase. Georgia wasthe first state to take advantage of this decision when in 1996, it orderedExzanavious Gibson, a man with an IQ of 80, to defend himself.
Eddie Lee Ross, a black man, was defended by a court-appointed attorneywho had served as the Imperial Wizard of the KKK for 50 years. Ross’s lawyerfell asleep repeatedly during the trial, failed to make any objections,filed no pre-trial motions and missed numerous court dates. Ross got thedeath penalty. James Messner, who was brain damaged, was electrocuted onJuly 28, 1988, after his own attorney suggested in closing arguments thatthe death penalty might, in fact, be the appropriate sentence.
In the case of William Hance, a black, the jury was deadlocked at 11-1for death with the lone hold out being a woman named Ms. Daniels, the onlyblack on the panel. Death sentences must be unanimous in Georgia so theother jurors began pressuring Daniels. One said, “We need to get itover with because tomorrow’s mother’s day”. Daniels refused to budgebut the foreman sent the judge a note saying the jury had voted for death.Despite an affidavit from Daniels, Hance went to the electric chair in 1994.
Virginia executes more people than any other state but Texas-42 sincethe death penalty was reinstated. The situation in the town of Danville,the last capital of the Confederacy, is instructive in regard to how thedeath penalty is imposed in the state. According to the Richmond Times-Dispatch,since being incorporated in 1890 every person executed in the town has beenAfrican-American.
Danville’s chief prosecutor is William Fuller III, has sent seven men,all black, to death row. That’s one less than the number of men condemnedto death row in Richmond, a city with a population almost four times higher.
Fuller has charged eight people in Danville with capital murder, 16 blacksand two whites. He sought the death penalty for eight of the African-Americansand none of the whites. “Danville’s criminal justice system is an unconstitutionalembarrassment,”lawyers for Ronald Watkins, one of the condemned, wrotein a pending appeal to a federal court. “The brazen racial animus thatfuels the death penalty machine in Danville should be acknowledged and neutralized.”
The situation is not much better elsewhere. In Philadelphia, legal representationfor people facing the death penalty is so poor that officials in chargeof the system told the Philadelphia Inquirer that they would not want suchlawyers to handle their case in traffic court.
In Alabama, the maximum fee allowed to a court-appointed attorney is$2,000. “I once defended a capital case [in Alabama] and was paid solittle that I could have gone to McDonald’s and flipped hamburgers and mademore than I made defending someone whose life was at stake,” says Bright.
In South Carolina, the state attorney general campaigned on a platformthat called for replacing the electric chair with an electric sofa in orderto speed the pace of executions. CP