Death Isn't Fair
by Jay B. Van Story
May 7, 2005

Excerpts From an Article by Michael Hall in Texas Monthly,
December 2002.

Our adversarial process of justice rests on an essential assumption: that the fight is fair. We should be tough on criminals, but when the moment comes that the last appeal is denied and the accused faces death by injection, we want to be able to look at ourselves in the mirror and believe that the State of Texas gave the condemned man a fair trial.

Our criminal justice system is a government system, and the government -- in this case, the courts, the cops, the district attorneys -- will inevitably make mistakes. The issue is whether we are willing to correct them, as other states have done. 

Prosecutors, like all lawyers, are officers of the court, which means that their first duty is not to win but to see that justice is done. Yet this responsibility is all too often overlooked in the heat of battle. It's a war out there, and the state wants to win. In fact, prosecutors have to win. They are under far more pressure than defense lawyers, who, most of the time, are trying to get the least possible sentence for clients who are almost certainly guilty. The DA is a politician, an elected servant of the people, and he constantly needs to prove that he is winning the war against crime. And in war, anything goes. 

Prosecutors and police officers sometimes lie, evade the truth, and suppress evidence. They don't do it because they are evil, they do it because they are certain that the defendant is evil. So in their relentless pursuit of a conviction, they sometimes fail to disclose information that would help him, as they are required to do.

They don't disclose the names of other confessors or witnesses who saw something that would help the defendant. They don't tell the whole truth. It's not in their interest. The attitude of defense lawyers toward prosecutors is Summed up by veteran Houston defender Randy Schaffer: "You will always have prosecutors and police cutting corners, whether it's a death penalty case or a traffic stop. It's indigenous to the beast -- what they do. And the more severe the case, the more likely they'll do it." 

Since 1994, the CCA (Texas Court of Criminal Appeals) has reversed only thirteen death penalty convictions on direct appeal, about 3 percent of the total cases -- the lowest death penalty reversal rate of any state court of last resort in the country. The court is even tougher on habeas corpus appeals: since 1995, the CCA has granted new trials on death penalty writs only twice -- out of more than five hundred writs coming its way. 

"If the trial judge recommends that relief be refused, the court will follow the trial judge," says Charlie Baird, a Democrat who served on the CCA until the end of 1998. "But if the trial judge recommends relief be granted, the court will figure out some way to get around that recommendation." 

In the change from Democrat to Republican, the court changed its philosophy but not its character: it is still hypertechnical. The most notorious example of this did not involve the death penalty. Roy Criner had received a 99 year sentence for the rape of a woman who was also murdered. In 1998 a DNA test proved that the sperm in the victim wasn't Criner's, and the trial judge ordered a new trial.

In a 5-3 opinion written by Judge Keller, the CCA denied Criner a hearing on the new evidence. "The DNA evidence... does not establish his innocence," she wrote, noting that Criner could have used a condom or not ejaculated. Former judge Baird, who dissented, is still outraged: "The problem with Keller's position was that those arguments were never made by the state. Keller left any semblance of being an impartial judge behind and became a partisan advocate for the prosecution. And it begs the question, why would anyone want an innocent man to stay in prison?"

Judge Price later wrote that the decision had made the CCA a "national laughingstock." Keller didn't help matters when she gave an interview in 2000 for Frontline, discounting the DNA evidence and calling the victim "promiscuous." About Criner's little innocence problem, she said, "He has to establish unquestionably that he is innocent, and he hasn't done it." When asked how a person could prove he was innocent, she replied, "I don't know. I don't know."

She's right: It's almost impossible under the court's standard, which is "clear and convincing evidence." If exonerating DNA isn't "clear and convincing," what is? (Criner was eventually freed after the Board of Pardons and Paroles recommended that he be pardoned.) 

The CCA has also made it almost impossible to show that the state violated a defendant's right to a fair trial. The court typically describes mistakes or misconduct during a trial as "harmless error." In other words, the defendant would have been convicted anyway. Perhaps the most infamous examples of harmless error occurred in the sleeping-lawyer cases, one of which involved Calvine Burdine. Even though the trial court said he should get a new trial, the CCA overruled. 

A federal Judge called the CCA's actions in one case "a cynical and reprehensible attempt to expedite petitioner's execution at the expense of all semblance of fairness and integrity." 

The CCA's critics say that the court is result-oriented, ruling on ideology. Asked to explain the court's sometimes bizarre opinions, former judge Baird says, "They are beyond comprehension. They cannot be understood because they are the product of judges who are intellectually dishonest. They first determine the result they want, and then they distort the law to fit that result." 

The Board of Pardons and Paroles is often the last chance for the condemned. It isn't much of a chance, though, and it isn't much of a board either. The eighteen members, all appointed by the governor, have never gotten together to vote in the past quarter of a century. They've never even conducted a hearing. 

They individually consider the cases and then vote, by fax and e-mail. "We vote on our best gut feeling," says member Paul Kiel, "with all the information we have. " A pardon can be granted by the governor only on the board's recommendation. But the board has granted only two death penalty pardons since 1990, and both were requested by prosecutors.

In short, the board has neither the desire nor the authority to deliberate issues of innocence. Board chairman Gerald Garrett says that innocence should be up to the Judicial system. "I don't think we should casually set aside rulings of the courts," he says. It's a catch-22 worthy of the whole Texas death penalty system: No one cares about the possibility of innocence. 

This is the final proof that the system doesn't work: Every Texan who has walked free from death row has done so with outside help -- filmmakers, TV stars, preachers, activists, and pro bono lawyers, not the attorneys appointed by the state to represent them. They got out in spite of the system, not because of it. 

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