Full Access to the Courts

Governor George W. Bush is fond of saying, while washing his hands of each of the 137 victims of his killing machine, that all have met his two criteria. Most recently, on the July 16th edition of ABC's ‘This Weeh With Sam Donaldson and Cokie Roberts", he said, “I'm absolutely confident that everybody that's been put to death is two things: One, they're guilty of the crime charged, and, secondly, they had full access to our courts, both state and federal.” This “full access” bromide must be thought satisfying to have become such a regular part of his litany. Since Texas leads the execution parade, having done away with 211 people in all – almost three times that of second-place Virginia – since 1977 when state killing was reinstated there, it might be interesting to take a look at what such “full access” actually means when someone's life is at stake.

Gary Graham, aka Shaka Sankofa, was denied the right, as discussed here earlier, to have the testimony of two exculpating eyewitnesses ordered heard by the appeals court. Despite the fact that three of Graham's jurors signed affidavits saying they could not have voted to convict the man, let alone sentence him to death, had they heard it in court, this testimony was not allowed to be introduced because Texas law does not permit the introduction of new evidence once 60 days have passed from the time of conviction.

Since Graham's attorney didn't present the issue at trial, then, this testimony was not admissible in court and could not be considered. Graham was executed June 22, 2000.

Before Bush's time, but nonetheless an example of Texas' “full access”, Leonel Herrera argued from death row that he was actually innocent. Texas' courts found the assertion that his brother had actually done the shooting, a claim supported not only by the brother's attorney but also by Herrera's nephew, the son of the now-identified shooter, unworthy of consideration. Their view, however, was challenged by a federal court and, after continuing argument, made its way to the U.S. Supreme Court.

In those august chambers Justice Anthony Kennedy posited the question, “Let's say you have a videotape which conclusively shows the suspect is innocent. Is it a federal constitutional violation to execute that person?” Texas' Assistant Attorney General Margaret Giffey replied, “No, it would not be violative of the Constitution.”

A majority of the Court agreed and Herrera's plea was denied. Not unaware that their decision might mean a mouthful of ashes to the petitioner, the Court offered the heartwarming thought, “(t)his is not to say, however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency.”

If executive clemency was water Texas would be the Sahara Desert, so Herrera was killed on May 5, 1993. Justice Harry Blackmun, once a death penalty supporter, said that the Court's decision in the Herrera case was “perilously close to simple murder.”

George McFarland's “full access” included an attorney who “slept during great portions of the witness testimony,” said juror Mary Louisa Jensen in the July 15th Los Angeles Times. “It was so blatant and disgusting that it was the subject of conversation within the jury panel a couple of times.”

Texas' prosecutors have acknowledged that the attorney, a then 72-year-old man named John Benn, slept, but say that should not bar the execution. Sleeping aside, they say, it was a fair trial.

In this case the judge, Doug Shaver, “knew [Mr. Benn] wasn't competent,” so he appointed a second lawyer to assist him. Unfortunately the additional man, Sandy Melamed, had never before worked on a capital case.

Thus, neither attorney visited the crime scene, nor did either interview potential witnesses. They spent a grand total of 10 hours preparing the case. Melamed, who valiantly spent considerable court time kicking his lead counsel's chair to awaken him, is quoted by the Times as saying, “If someone says down the line that I screwed the case up and George (McFarland) should live, I will be the second-happiest guy in the world behind George.”

Texas' Court of Criminal Appeals upheld the verdict and sentence 7-2 in 1996, the majority holding that it did not matter that McFarland's attorneys had not gone to the crime scene, interviewed witnesses or conferred with one another. These jurists did not challenge the contention that Benn slept during the trial but observed that McFarland's appellate lawyer provided no detailed evidence of how often it had happened. There was another attorney present, they held, and “[a]lthough we do not condone Benn's behavior, viewing the totality of circumstances, appellant fails to make any showing that he was not effectively represented at trial by Melamed.”

One Texas Court of Criminal Appeals judge, Charles Baird, dissented, saying “I find the majority's suggestion that it was somehow reasonable trial strategy for lead counsel to take a ‘short nap' during the trial utterly ridiculous. In my view, a sleeping attorney is no attorney at all.”

McFarland's case remains on appeal. But perhaps the definitive word on “full access to the courts” in this case came from Judge Doug Shaver, the one who recognized the incompetence of Mr. Benn and appointed the apparently equally incompetent Mr. Melamed. “The Constitution says everyone's entitled to the lawyer of their choice, and Mr. Benn was their choice. The Constitution doesn't say the lawyer has to be awake.”

Another famous sleeping Texas defense attorney, now deceased, was Joe Cannon. His client Carl Johnson was executed in 1995 after federal courts said he could not even litigate the issue of Cannon sleeping at his murder trial because, again, the point had not been made early enough in the process.

Things may be looking up for those convicted of murder while their attorney slept, though. Last year a federal trial judge in Houston ruled that Calvin Burdine was entitled to a new trial because the same lawyer, Joe Cannon, slept through significant portions of his 1987 trial. Judge David Hittner, an appointee of President Reagan, held that “A sleeping counsel is equivalent to no counsel at all.”

The Texas attorney general's office, however, contends that the state is still entitled to execute Burdine because he failed to demonstrate that Cannon's performance actually harmed him. Yet.

Rodolfo Acu-a, Professor of Chicano Studies at California State University at Northridge, writing about ethnic discrimination in the death penalty says that this past June the U.S. Supreme Court ordered Texas to provide a new sentencing hearing to death-row inmate Victor Hugo Saldano. The high Court ruled that the prosecution used racially discriminatory evidence violating the equal protection clause of the U.S. Constitution's 14th Amendment. This ruling put into question the cases of six other death row inmates as well, because a Texas court had allowed a psychologist to testify about Saldano's “future dangerousness” based on factors that included the fact that the man was a Latino. The Texas Court of Criminal Appeals had previously upheld Saldano's death sentence, stating that the prosecution's use of ethnicity as a factor to be considered in death sentencing was not a “fundamental error” requiring reversal.

The June 11th Chicago Tribune reported that a study of the then 131 state killings under George W. Bush showed that 40 involved trials where defense attorneys presented no evidence at all or only one witness during the sentencing phase. 29 of the cases, they found, included testimony for the prosecution from a psychiatrist – James Grigson, the now-infamous “Dr. Death” – whom the American Psychiatric Association had condemned as unethical and untrustworthy. 43 of the cases involved defense attorneys who were publicly sanctioned for misconduct, with 34 of those either suspended or disbarred after their work on these cases. 23 included the testimony of jailhouse informants, considered to be the least credible of witnesses. 23 involved the use of visual hair analysis, a forensic technique that has consistently proved unreliable.

In 1995, the Tribune reported, Bush signed a bill designed to speed the pace of executions. He later opposed a legislative proposal to ban the execution of mentally retarded defendants, saying that decision should be left to juries. Bush also vetoed a measure that legislators called a modest effort to improve legal representation for the indigent.

Add to this that, according to the Los Angeles Times, “Houston judges, in particular, have had a reputation for appointing lawyers [for indigent defendants] who moved cases along rapidly and often had greater loyalty to the jurists than to their clients. Two lawyers, favored by certain judges but widely criticized by leading legal experts, wound up with 10 and 12 clients respectively on death row.”

This glimpse at a few cases, then, provides a brief insight into the legal system in which Governor Bush takes such pride. It is this amalgam of procedural obstacles, political considerations, cronyism, ambition, racism, ineptitude, and arrogance to which he points when insisting that “everybody that's been put to death is two things: One, they're guilty of the crime charged, and, secondly, they had full access to our courts, both state and federal.”

Well, God help them. Bush certainly won't.

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