A Reckoning On Death Row

Like most people, I'm a hard-liner on crime. It makes me angry to see victims' families ignored, killers released on technicalities and "life" sentences that are more like sabbaticals. Bianca Jagger and Jesse Jackson are not going to turn me around on the death penalty.

But nowadays I'm a moratorium man, cast adrift on the issue along with many other Americans. First came the Illinois eye-openers, where several innocent men were released from death row. A quirk, perhaps? (Al Gore's current logic.) But it wasn't. Similar cases popped up elsewhere. Last year I interviewed a Missouri man, Roy Roberts, the night before his execution. There was no physical evidence, witnesses changed their stories and Roberts passed three lie-detector tests. I began to wonder: are we really executing people without knowing for sure?

We are. This spring, I focused on an obscure case in Texas. The state was all set to execute Ricky McGinn, who looked very guilty but had not been given his proper DNA tests. It seemed like a no-brainer--why not find out for certain before executing him? This was the case in which Gov. George W. Bush issued his first-ever reprieve. But that raised as many questions as it answered. Illinois and New York are the only states that currently allow inmates to obtain DNA testing on request, and Bush had previously turned down such testing in cases that didn't get as much publicity.

At least this year's presidential campaign is putting some important, if misunderstood, legal concepts back into public view. Take "reasonable doubt." It turns out that's the standard only at the original trial. After that, all the reasonable doubt in the world doesn't count without gross procedural error. And all the gross procedural error in the world doesn't count if defense attorneys don't protest early in the process. Bush insists that the system is "fair"; in fact, the system is something out of Joseph Heller or Franz Kafka.

Which brings us to Gary Graham, executed last week. Graham was a thug on a crime spree in 1981, and he might have killed Bobby Lambert outside a Houston supermarket. Might have. The evidence in the murder case was thin. There was no DNA, fingerprint or physical evidence. During the trial, the jury was told that Graham was arrested in possession of a .22-caliber pistol similar to the one used in the crime--but not told that the Houston police found that they were in fact different guns.

Of the eight witnesses who saw the killer in or near the store, seven could not identify Graham in the original police reports. He was sent to his death, contrary to the Biblical admonition, on the basis of a single eyewitness, Bernadine Skillern. Her story was convincingly told, but contradicted by two other witnesses who were never called to testify or even interviewed by the indisputably incompetent court-appointed defense attorney.

How stacked is the deck? The higher courts, including the Supreme Court (which last week refused, 5-4, to review the case), tend to trust the original jurors--unless the original jurors have new doubts. Then their views don't matter. Three of the original jurors in the Graham case said that if they had heard all the witnesses originally, they would have voted to acquit. The higher courts were unmoved.

The bottom line is that the "full and fair" access to the courts that Bush brags about is now a mirage. In Herrera v. Collins (1993), the Supreme Court made it much tougher to bring a constitutional claim of innocence. And the 1996 Anti-Terrorism and Effective Death Penalty Act--pushed by the Clinton administration--sharply curtailed federal review of state cases. Despite numerous appeals, the facts of the Graham case were never formally revisited. After his 1981 trial, no court gave Graham even a short hearing on the question of his guilt or innocence.

That left a claim of "ineffective counsel," which is like buying a lottery ticket. The Supreme Court has only twice in two centuries granted relief on those grounds. Lower courts also routinely reject such claims, in part because they are so often the last refuge of the guilty. The courts apply what is jokingly called the "mirror test"--if it fogs up (because of the lawyer's breathing), he's "effective." The Chicago Tribune reported that in 43 of the 131 executions on Bush's watch--almost one third--inmates were represented by counsel publicly sanctioned for misconduct (sometimes in unrelated cases) by the state bar association.

The closer you look at the Texas system, the more questions it raises about Bush's leadership. One reason Texas has executed three times as many inmates as the next state (Virginia) is that Texas is one of only eight states that does not have a sentence of life in prison without parole. (Juries usually like that option.) And Texas is one of only a few states without a public-defender system. In 1995 Bush vetoed a bill that would have provided for one. He prefers a system where elected judges appoint lawyers who also often happen to be contributors to the judges' campaigns. These defense attorneys have a strong financial incentive to plead out cases and otherwise help the prosecution.

Gore doesn't want to make any of this an issue, so it almost certainly won't hurt Bush in November. But campaigns are about more than who wins. They also help the country crystallize its view of itself. A new poll shows that nearly 60 percent of Texans believe the state has, at some point, executed the innocent. No matter. These voters apparently view state-sanctioned murder as a fair price to pay for maintaining the status quo. A real leader would try to take his people to a better place. Will Bush? I have reasonable doubt.