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The Executioner Never Sleeps

I am a Ford, not a Lincoln.

Gerald Ford, 1973

Even I, biased as I am, am constrained to come to the defense of the oppressed majority now and again. Although I would be the first to contradict the commonly accepted notion (by Republicans and an occasional Democrat) that everyone who is born in a log cabin and raised in crowded quarters, is another Abraham Lincoln and should be elevated to the highest position available at any particular time in the history of the country, I nonetheless feel it important to correct the record of someone wrongly criticized.

The log cabin is, of course, the reason Alberto Gonzales has been nominated to be the attorney general of the United States. When introducing Mr. Gonzales to the senate Judiciary Committee, newly elected Senator Ken Salazar quoted from a speech Mr. Gonzales had given at Rice University in which Mr. Gonzales said: “During my years in high school I never once asked my friends once[sic] over to our home. You see, even though my father poured his heart into that house, I was embarrassed that 10 of us lived in a cramped space, with no hot running water or telephone.”

Proof, if needed, that the log cabin and not great accomplishments got Mr. Gonzales where he is today is found in an examination of his conduct as counsel to the president, counsel that has been examined in considerable detail in the press and in his appearance before the judiciary committee of the United States Senate and needs no further recital here. Less closely examined was Mr. Gonzales’s conduct as counsel to then Governor George Bush in Texas and it is for one alleged shortcoming of the fulfillment of his duties in that capacity that I come to his defense.

In an article written for The Atlantic in July, 2003, Alan Berlow describes execution briefings Mr. Gonzales prepared while serving as counsel to Governor Bush. The briefings described the nature of the crime, mitigating circumstances and the like. Mr. Berlow obtained fifty-seven confidential memoranda prepared by Mr. Gonzales.

The memoranda formed the basis for discussions Mr. Gonzales then had with Governor Bush that sometimes lasted as long as one-half hour which is not all that surprising given the subject matter of the discussion. Their purpose was to assist Governor Bush in reaching the decision that it was appropriate to let the condemned person proceed to the death chamber for execution.
In analyzing the memoranda Mr. Berlow observes that Mr. 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.” While persuasive in many respects, Mr. Berlow’s description of the memorandum prepared by Mr. Gonzales for the governor’s review of the case of Carl Johnson who was executed on September 19, 1995 is not. Mr. Berlow notes that Mr. Gonzales did not point out to the governor that Mr. Johnson’s trial lawyer had slept through much of the jury selection. What Mr. Berlow probably did not realize is that in Texas that is no big deal. Examples of sleeping lawyers abound as anyone who has followed Texas criminal law knows.

George McFarland, for example, was tried for a robbery-killing and his attorney was described by court room witnesses as having been in a deep sleep for much of the trial. In response to a suggestion that a sleeping lawyer was equivalent to ineffective assistance of counsel the trial judge was quoted as saying, quite correctly: “The Constitution doesn’t say the lawyer has to be awake.” The Texas Court of Criminal Appeals agreed with the result although a dissenting judge did hazard the observation that the majority’s conclusion was ridiculous.

Another example of Texas style defense was offered by Calvin Burdine who was also represented by sleeping counsel. In his case not only the court of criminal appeals in Texas but a panel of the Federal 5th Circuit of Appeals thought that was no big deal. Writing for the panel federal judge Edith Jones (who may soon be nominated to join Clarence Thomas and friends) said: “We cannot determine whether [defense counsel] slept during a critical stage of Burdine’s trial.” She said other equally amusing things the recounting of which space denies me. Notwithstanding Texas’s somewhat cavalier attitude towards sleeping lawyers, higher courts have intervened and both men remain alive as the wheels of justice creak along.

For all the valid criticism one can make of Mr. Gonzales’s’ legal advice to Mr. Bush in his various capacities, failing to point out to then Governor Bush that Texas defense counsel was sleeping does not reflect badly on Mr. Gonzales. That is simply part of life and death in the Texas Criminal justice system.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu.

 

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