No state executes as many people as Texas, and no American governor has put more people to death than the state’s current governor, George W. Bush, who on August 3rd will be nominated as the GOP’s presidential candidate. Bush has signed off on 135 executions since he took office in 1995, about one death every two weeks. In his first term of four years, 79 people died. By contrast, Bush’s predecessor, Ann Richards, approved 50 executions in her term as governor. Knowing that Texas voters like to see convicts pay the ultimate price, Bush has made a priority of cutting out some of the red tape involved in actually killing a condemned prisoner. On the campaign trail in 1994, he promised to shorten the time taken for death-row appeals, and he followed up as soon as he took office. He has since gone out of his way to oppose bills that might have slowed the pace of executions, and he has given a reprieve or a commutation only twice, proof of his deep faith in the system in Texas that finds alleged murderers and sends them to their deaths.
One might expect Bush’s zeal for capital punishment to derive from some well-considered philosophy. But in fact the governor just says the same line over and over: If it is administered swiftly and justly, the death penalty will deter future violence. It seems clear that Bush’s actions are inspired by the popularity of capital punishment in Texas. Support cuts across party lines – up to 80 percent of Texans strongly favor it – and Bush has exploited that enthusiasm for political benefit, making the system even harsher. “Before Bush, what we meant by ‘tough on crime’ was increasing the severity of penalties,” says Keith S. Hampton, a defense lawyer who works on criminal-justice issues. “After Bush, ‘tough on crime’ means doing away with the basic procedural safeguards that get in the way of convictions. That’s a lot different.”
But what plays well in Texas may hurt Bush on the national stage: Approval of capital punishment has declined from 80 percent nationwide in 1981 to 66 percent today. New revelations about innocent people going to prison and to death row have caused further alarm. In February, after an investigation by college students proved the innocence of a man about to die in Illinois – the 13th exoneration there in 23 years – Republican Gov. George Ryan halted all executions in the state. The governors of Maryland and Indiana then ordered studies to see whether their death-row convictions were as unreliable, and President Clinton has ordered a review of federal death-row cases. Legislatures in Pennsylvania, Alabama, Maryland, New Jersey, Washington and Oklahoma are considering imposing moratoriums. Meanwhile, a best-selling book, Actual Innocence, by Barry Scheck, Peter Neufeld and Jim Dwyer, argues that thousands of people in prison could be found innocent with modern DNA testing. While even Democrats in Texas frequently emphasize their strong support for the death penalty, Republicans across the nation are competing to show their concern about executing the innocent. Powerful senators such as Utah Republican Orrin Hatch are backing a bill in Congress to compel DNA testing in capital cases, and Texas legislators have introduced a similar bill with bipartisan support.
Until June, the new controversy made no impression on Bush. He said repeatedly that he was confident of the guilt of those inmates executed under his charge. But on June 1st, pressured by a Newsweek cover story, he agreed to a reprieve for the first time, to allow for DNA testing in the case of a condemned inmate named Ricky McGinn. As reporters comb through the records of the 133 men and two women executed under Bush, he has been showing increasing nervousness. Several Texas lawyers are notorious for having slept through much of their clients’ trials. The Wall Street Journal noted that when Bush was asked in the spring about the sleeping-lawyers problem, he laughed awkwardly before deflecting the question. When Washington Post columnist Richard Cohen told Bush that nobody has ever proved that capital punishment is a deterrent to would-be murderers, Bush retorted weakly, “You’re right, I can’t prove it. But neither can the other side prove it’s not.” When death-penalty experts questioned the guilt of inmate Gary Graham – he was convicted on the testimony of one eyewitness, who received coaching from the police – Bush said with an air of defiance, “I’m going to treat this [case] no different than any other that has come across my desk.” Graham was put to death on June 22nd, with protesters from around the world demonstrating outside the execution chamber.
It would be nice to take the governor at his word and to believe that each convict executed during his watch was truly guilty beyond a reasonable doubt. But Texas’ harsh criminal-justice culture does not distribute its wrath equally. Almost every executed person was poor, represented by a lawyer who was court-appointed – not hired by the defendant. The result is that defendants are outmatched at every stage: the trial, the sentencing phase, the appeals process and, finally, the inmate’s last resort, the petition to the governor for mercy.
James Beathard and Gene Hathorn worked together as orderlies at a state mental hospital in Rusk, Texas. On the night of October 9th, 1984, they drove out to a mobile home that belonged to Hathorn’s family. Hathorn’s father, stepmother and 14-year-old half brother were killed. Hathorn had a history of violence that included kidnapping and robbery.
Beathard had no record. Beathard was tried first, and Hathorn was the star witness against him. Beathard was sent to death row for killing Hathorn’s half brother, while Hathorn took the rap for the other two murders. Soon after Hathorn was convicted, he recanted his earlier testimony against Beathard. At one point, he even said that Beathard was completely innocent. Beathard was executed on December 9th, 1999.
In Texas, it’s often said, “If you don’t have the capital, you get the punishment.” James Beathard is a case in point. At the time he was tried, his court-appointed lawyer, Hulon Brown, was also representing Hathorn on separate criminal charges pending against him. Because of Brown’s conflict, he didn’t try to interview Hathorn or to negotiate a deal for immunity or a reduced sentence for Beathard. Brown later admitted in a sworn affidavit that his conflict of interest affected his performance on Beathard’s behalf, but the state appeals court declined to revisit the case.
In his autobiography, A Charge to Keep, Bush wrote, “Some advocates of life will challenge why I oppose abortion yet support the death penalty; to me it’s the difference between innocence and guilt.” But in the many cases like that of James Beathard, guilt seems far from certain. A Chicago Tribune investigation found that 43 of the people executed under Bush had a lawyer who “had been or was later disbarred, suspended or otherwise sanctioned.” Lawyers in Texas are not inherently less capable – horror stories abound because Texas is one of only a few states with no statewide public defender’s office to provide trained, salaried lawyers. Prosecutors in death-penalty cases routinely outspend court-appointed attorneys by 20 to one. “Texas is an aberration,” says Austin defense lawyer Raoul Schonemann, “because the state puts not a penny into providing representation for indigent defendants.”
Texas’ system of indigent defense has repeatedly been called a national embarrassment. When a poor person is arrested there, he or she may sit in jail for months before being assigned a lawyer. In 1999, Ellis proposed a bill that would have set up a statewide public defender’s office and included a provision that might have taken away judges’ authority to assign court-appointed defense lawyers. Under the current system, says Keith Hampton, who is legislative chair of the Texas Association of Criminal Defense Lawyers, “if the judge doesn’t like your client or sees you object too much, maybe he’ll find someone else to give the cases to.”
In the spring of 1999, the House and Senate in Texas both passed Ellis’ Indigent Defense Bill unanimously. Then the state’s judges began pushing for a Bush veto. The judges are a solid Republican lobby, and Bush didn’t hesitate to veto the Indigent Defense Bill last June. “He just caved in to the trial judges,” says Ellis.
Eight months later, in February, Bush, appearing on NBC’s Meet the Press, officially went on the record in support of a state-funded public defenders’ office, a convenient bit of political amnesia. “No, I don’t remember that bill,” he said when reminded of the veto. “I can’t remember the exact nature of the bill. It wouldn’t be – because I’m for public defenders.”
Defendants who are poor and foreign may be the most vulnerable of all. Bush approved the executions of Irineo Montoya of Mexico and Joseph Stanley Faulder of Canada, whose trials had violated the Vienna Convention of 1963, an international treaty. Neither man was informed by Texas police after being arrested that he had a right to contact the consulate of his home country. The foreign ministers of both countries requested that Bush show respect for the treaty by commuting their sentences. Canada sent a delegation to Austin that included legislator David Pratt. “We had to convey the strongest message possible to the government of Texas that this was not acceptable to the government of Canada,” says Pratt. But in both cases, Bush refused to issue a reprieve.
The most dramatic moment in a capital trial does not occur when the jury delivers its verdict of guilty (which happens about 80 percent of the time in Texas). It comes after the sentencing hearing, when the judge announces the punishment. During the hearing, the prosecution typically argues that the defendant is a threat to society and that the crime was too gruesome to let him live, while the defense is supposed to present factors that could soften the jury’s opinion.
In making its decision, a jury must consider “future dangerousness,” one of several factors that determine whether the defendant will get a life sentence with a parole option after 40 years, or death. Life without parole is not an option, despite a recent poll showing that 84 percent of Texans would like to have it. Prosecutors have long lobbied against life without parole, which would nullify their argument that the inmate could someday be back on the streets, killing again. Legislators also prefer to avoid the expense of caring for geriatric prisoners.
In 1998, life-without-parole bills were introduced in both the House and the Senate in Texas, but their respective Republican-controlled committees did not release the bills for a floor vote. Jim Dunham, a Democratic sponsor in the House, says that Republicans opposed it, “so I assumed the governor was against it.” In the Seventies and Eighties, 137 convicted murderers in Texas were sentenced to death largely on the recommendation of Dr. James Grigson, a forensic psychiatrist from Dallas. Prosecutors could count on him to tell juries that the man they had just convicted would certainly kill again. That Grigson rarely examined these defendants made no apparent difference.
In the late 1980s, prosecutors began using Grigson less and less often in capital cases, after they were embarrassed by a report compiled by the Dallas County district attorney’s office. The study found that Grigson was in fact almost zero percent accurate in his predictions of future violence. In 1995, he was expelled from the American Psychiatric Association for unethical behavior in capital trials. Nonetheless, Gov. Bush approved the executions of 16 men against whom Grigson had testified.
In April 1997, Texas newspapers and activists took up the cause of Terry Washington, who had murdered a college student in 1987. He was estimated to have a mental age of six. On May 6th, 1997, Washington was executed.
Twelve states and the federal government forbid executing the retarded. Bush opposed a bill introduced last year that would have added Texas to that list, saying, “That’s up to juries to make those decisions.” The bill cleared the Texas Senate, but it never got scheduled for a vote on the House floor – to avoid putting the governor in a predicament, according to a former House aide. (Bush’s brother Jeb, the governor of Florida, recently said he would not sign a death warrant for a retarded person.)
For poor convicts, getting a decent lawyer for the appeal is no easier than it was for the trial. In capital cases, convicts are afforded an automatic appeal to the Texas Court of Criminal Appeals, in which problems from the trial may be examined – the CCA judges are not supposed to second-guess the jury’s decision. In addition to the automatic appeal, the inmate may file a writ of habeas corpus, in which claims that rely on facts outside of the trial can be raised. If the state rejects the writ, he may send the same appeal to a federal court. Before Bush was elected, the process generally took more than seven years to complete.
In his campaign against Ann Richards in 1994, Bush said the appeals were taking too long. Richards was tough to attack on any crime issue, since she had helped channel $2 billion toward building the world’s largest prison system in Texas and had overseen the execution of 50 people. But he persisted, and she agreed with him, and then both candidates were out proclaiming their desire to speed up executions. The Houston Chronicle scolded them: “It is unseemly for political candidates to compete with one another over who would be the most enthusiastic and cheerful executioner.”
After Bush took office in 1995, the legislature pushed through a bill to shorten death-row appeals, and Bush signed the new law in June 1995. “Murderers who are sentenced to death will no longer be able to endlessly delay justice,” he announced. The law cut short many death-row appeals, including that of Jerry Lee Hogue.
Hogue had been convicted of capital murder in 1979, after the jury deliberated for one hour. The trial was a case of two against one: A man and a woman testified that they saw Hogue tie the hands and feet of 27-year-old Jayne Markham with wire, stab her and set fire to their house in Arlington, Texas. Hogue was also alleged to have raped Markham. Hogue always maintained that he was innocent and that the man who had testified against him was the actual killer. But the only evidence to back up his version was a small detail: After the fire, the other man, Steve Renick, had burns on his face and Hogue did not. When a fire is ignited with a gasoline can, as in this case, the arsonist often has facial burns.
All at once, in the week preceding Hogue’s execution, Renick was indicted on a charge of burning down his own house in Wichita Falls, Texas, and a woman came forward saying Renick had bragged about setting the fire in Arlington. Joseph Stewart, the fire inspector who investigated the new arson, became suspicious when he learned that Renick had been present at the fire in Arlington. Stewart wrote in an affidavit, “I noticed significant similarities between the Arlington, Texas, fire and the Wichita Falls, Texas, arson.” Stewart was concerned enough about the possibility that Hogue was innocent that he called Bush’s office. “I told them, ‘I’m not a defense attorney. I’m a Texas peace officer. This isn’t some kind of last-minute finagling around by an attorney to try to get this thing stopped,'” Stewart said later.
On the day before Hogue’s scheduled execution, a woman named Gayle Morgan went to the Wichita Falls police and told them that Renick had bragged in front of her about getting away with setting a fire that had caused a woman to die. Morgan said she had only learned on that day, March 10th, 1998, that someone else had been convicted of killing Jayne Markham. Stewart faxed Morgan’s statement to Bush’s office. On the basis of the new evidence provided by Stewart and Morgan, Hogue’s attorneys asked the CCA for a 30-day stay to conduct two tests. They wanted permission to test the fingerprints on the gas-can cap that had been found in the fatal fire, and they asked to be allowed to commission a DNA test on a swab taken from the victim so it could be compared with the DNA of Jerry Hogue and Steve Renick. (The arson charge against Renick was later dropped as part of a plea bargain.)
The CCA declined to review the defense’s last-minute petition, deeming it an abuse of the process as redefined by the new appeals law. Hogue was executed on March 11th, 1998.
When all courts decline to hear any further appeals from a condemned inmate, he may apply to Gov. Bush and the Board of Pardons and Parole for clemency. After a June Newsweek cover story on the need for more DNA testing, featuring a large picture of Texas death-row inmate Ricky McGinn and a discussion of his case, Bush agreed to a 30-day reprieve, half an hour before McGinn was to die. Bush said, “To the extent that DNA can help in innocence or guilt… I think that’s very valid, very important.” When he was then criticized for refusing to allow time for a test in the Hogue case, his legal staff maintained that it had never been told about the need for a DNA test. But Hogue’s lawyers point out that Bush was faxed a copy of their last-minute petition to the CCA, in which they specifically requested DNA testing with “techniques that were not available in 1979.”
The 18-member Texas Board of Pardons and Parole votes on all clemency applications and sends its decisions to the governor. If a majority doesn’t recommend a commutation, Bush can give only a 30-day reprieve. The board was set up in the 1940s, says Jim Mattox, attorney general under Ann Richards, “so the governor wouldn’t have to take political heat for granting clemency or not.” However, the board is composed of the governor’s appointees, who follow his lead. “I think there’s no doubt if the governor wants to grant clemency and he tells them he wants it, then they’ll recommend it to him,” says Mattox.
The members of the BPP generally have years of experience with the prison system and come from strong Republican backgrounds. Three board members have contributed to Bush’s presidential campaign, but only one, Daniel Lang, gave a sizable amount – $2,000. The members make independent decisions about paroling inmates but take their cues from Bush and the attorney general in deciding on clemency for a person about to be executed.
In a recent speech before defense lawyers in Dallas, Lang said that he wants to see proof of rehabilitation when considering granting parole: “What you need to do is present clear and convincing evidence that he [the inmate] has changed and is no longer a threat to society or to property in Texas.” But when asked what he looks for when examining a clemency petition from a death-row inmate, Lang seemed puzzled. Then he replied, “Well, like the governor said, if there’s a question of innocence and whether the person got due process.” Brendolyn Rogers-Johnson, another board member, says, “What I look at is, was there due process, and is there any reasonable doubt [about guilt]? My final thing is, does this person deserve mercy?” BPP member Cynthia Tauss testified that “the first thing I’m looking for is guilt or innocence… and then the second question I’m going to ask myself is… has he had access to the courts?” They were all following the governor’s unique formula. But the appeals courts are supposed to address guilt and fair treatment in the trial – not the governor and his parole board. Governors traditionally focus on factors like rehabilitation.
In December 1998, Tauss was subpoenaed in a lawsuit against the BPP that alleged that the board’s secret deliberations violated due process and open-meetings laws. Of the four states that have a board evaluating clemency petitions before sending them to the governor – Texas, Louisiana, Oklahoma and Pennsylvania – Texas is the only one that does not hold public hearings in capital cases.
Testimony revealed that the board members handle more than 5,000 parole and pardon requests a year, since the number of prison inmates grew from 70,000 in 1994 to 150,000 in 1999, with no concurrent increase in parole-board staff. The lawsuit provoked one judge to call Bush’s clemency process “a legal fiction at best.” State Rep. Elliot Naishtat of Austin introduced two reform bills in the House Corrections Committee, one of which listed criteria that the board should consider. But Bush objected to any change. “I’m convinced that in every death-penalty case I’ve reviewed, the two major questions have been answered satisfactorily by the Pardons and Paroles Board, and by me and my legal staff,” he said.
The clemency bills never left their committee, and Naishtat says, “The governor was single-handedly responsible. I was told by the committee chairman, Pat Haggerty, that he had received a call from the governor’s office that the governor did not want any bills dealing with clemency to go to the floor of the House.” Haggerty does not remember the incident but does not dispute Naishtat’s account. Haggerty says the criteria list was too cumbersome. “In Texas there is a death penalty,” he says. “If people kill people, we put them to death. It’s that simple.”
Texas executions take place in Huntsville, three hours from the nearest metropolitan area, at the Walls Unit. The chamber is in a small brick building with a manicured lawn. Lethal injections used to be administered at midnight but since 1997 have been set for 6 P.M. On execution days, trays of sandwiches are laid out for the guards and chaplains, for the long hours that the inmate is confined there in the afternoon before he is led to the death chamber. The rituals are always the same and are kept to a tight schedule: the inmate’s last meal (later posted on the Texas Department of Criminal Justice Web site), the ushering of family members and victims’ relatives into their separate witness chambers, the chaplain’s last visit, the strapping of the inmate onto the gurney, and the injection of toxic chemicals to sedate the body, collapse the lungs and stop the heart.
Prison officials do not like disruptions. But on the evening of March 1st, when Odell Barnes was to be executed, there was a last-minute emergency. Barnes’ guilt in the murder of Helen Bass in 1989 had been questioned after his appeals lawyer discovered that blood evidence used to convict him may have been planted. Just as Barnes was about to be strapped down, the prison warden received a phone call from someone in Barnes’ hometown of Wichita Falls. One of two men, including Barnes’ old friend Johnny Ray Humphries, was rumored to be confessing to the crime. Humphries says that at that moment, while Barnes was lying on the gurney, Humphries received a call from the prosecutor in the case, Barry Macha. “Hold on just a minute, Johnny Ray,” Macha told him. Then Macha came back on the line:” Forget all about it. We just killed him.”
Late-breaking dramas are not unusual at the Walls Unit, because so many convictions are not airtight. In the case of condemned inmate Troy Farris, an appeals judge noted that in the trial, the testimony of the two witnesses against him did not harmonize with the prosecution’s version of events. But the judge chose not to reverse Farris’ conviction. A week before Farris was to die, Charles Lowder – one of two men at the murder scene with him – said that he was innocent. “God, I can’t believe they’re about to execute that boy,” Lowder remarked. Farris’ mother, Arlene, was convinced that the governor would commute his sentence. “I didn’t even say goodbye to him,” she says. “I knew someone was going to stop this. Not for a minute did I think they would execute him.” But they did, on January 13th, 1999.
Jerry Hogue’s mother, Mary Ebel, is still outraged that the fire inspector’s request for a stay was ignored. “At the last minute, it was proved that he was innocent, but they didn’t do nothing about it,” she says. Jeff Dworkin, a lawyer for Hogue, was in the visiting room with Hogue’s family on the day of his execution. “There was something so enormously wrong about watching this maybe 70-year-old woman literally say goodbye and turn away from the glass and walk out the door for the last time,” he says.
Poor defendants are not the only ones who suffer unfair treatment in Texas. The families of victims do, too. The criminal-justice system there is so unpredictable and capricious that a person could be sentenced to death or to probation for the same murder. In a non-capital murder case, the penal code allows the jury the option of imposing a fine and probation. Carolyn Harden’s son Steven was murdered in April 1998 by a Houston fireman, who was punished with a $10,000 fine and 10 years’ probation. Harden says she wrote and called Gov. Bush and got no response. “If he’s taking a stand on crime, he should at least try to back some of the bills to keep the murderers off the streets of Texas,” she says bitterly.
The murder rate in Texas has gone down in the past 15 years, as it has in almost every other state. That may be attributed to the $2 billion prison-building program begun by Ann Richards and to the strong economy – but, perhaps surprisingly, Bush is not attempting to make an argument that the death penalty is a cause of the state’s reduction in murders.
Bush continues to tersely express confidence in the Texas system of criminal justice. But he has never attended any of the 135 executions he has approved. When Board of Pardons and Parole member Lynn Brown is confronted with a petition for mercy, he says that he asks himself, “If I had to be the executioner, could I do it?” There is nothing to suggest that Gov. Bush has ever asked himself that question.
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