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TODAY o August 24, 2000
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Signs point to softening stance on executions
Saeed Ahmed - Staff
Sunday, June 11, 2000
Barely 20 minutes before his scheduled execution June 1 for the rape and murder of his 12-year-old stepdaughter, Ricky McGinn was granted a 30-day reprieve by Texas Gov. George W. Bush to allow time for new DNA evidence tests. It was the first time that Bush had OK'd a temporary stay of execution in his 5 1/2 years as governor --- a period that has seen 131 executions.
The Atlanta Journal-Constitution's Saeed Ahmed talks to Stephen Bright, director of the Southern Center for Human Rights in Atlanta and one of the nation's most vocal opponents of capital punishment, about whether Bush's decision indicates a shift in the political climate against the death penalty. Bright won the American Bar Association's Thurgood Marshall Award last year, and was chronicled in "Proximity to Death" by Pulitzer Prize-winning historian William S. McFeely. Excerpts from the conversation:
Q: You once wrote that the Texas Court of Criminal Appeals ran "the fastest assembly line to the death chamber in the country." What did you mean by that?
Bright: Texas has carried out over 200 executions when no other state has carried out even 80. The Texas Court of Criminal Appeals processes cases very swiftly, often with very inadequate legal representation for the condemned and without much concern for fairness. I was in Louisiana as the 5th Circuit Court, which covers Texas and Louisiana and some other states, heard arguments in the case of Calvin Burdine, who was convicted and sentenced to death in Houston after his lawyer, appointed by the Texas Court of Appeals, slept through his trial. The Federal District Court in Houston reversed the conviction of Mr. Burdine, but the state of Texas appealed. Since the Constitution doesn't say that a lawyer has to stay awake, the state argued his conviction should be upheld. The Texas court has similarly upheld at least three death sentences from Houston in which the lawyer for the defendant slept during trial. This makes its indifference to quality legal representation to those facing death very clear.
Q: Are you saying then that Texas may have a significantly high number of innocent people on death row?
Bright: Well, I think Texas certainly has a much more primitive system than, say, Illinois. We now know that at least seven people facing death in Texas were innocent because they were released. We don't know how many more are innocent because poor legal representation made it impossible for them to get a fair trial.
Q: What do you mean when you say Texas has a "primitive system"?
Bright: For example, in Illinois, Gov. (George) Ryan has declared a moratorium on executions pending a study of the system. In Illinois, you have a public defender system. Texas doesn't have a public defender system. Texas doesn't have any office that represents people in the review process of their cases.
Q: But throughout his campaign, Bush has insisted he has no doubt about the guilt of those executed since he took office.
Bright: As they say, "ignorance is bliss." Governor Bush himself has said he spends 15 minutes to half an hour on every death penalty case before him. One cannot possibly begin to grasp the details of a capital punishment case in 15 minutes to half an hour. If people aren't being offered adequate legal representation, evidence of innocence will not come to light. The ones who were found innocent just had the good fortune of a journalist or a volunteer lawyer taking on their case.
Q: So are you holding Bush responsible for the flaws in his state's judicial system?
Bright: The governor does bear some responsibility for the quality of the criminal justice system. He vetoed the indigent defense bill, a very, very modest proposal designed to give poor people better representation. It was passed unanimously by the Texas Legislature, and he still vetoed it. He turned a deaf ear to arguments that mentally retarded defendants be spared the death penalty, and he passed legislation to reduce the time between sentencing and execution. The fact that he defends the executions so cavalierly is worrisome. The former warden of the prison system has raised serious questions; the Pardon and Parole Board that he appointed has raised serious questions.
Q: Given that Bush has been pretty consistent in his defense of Texas executions, do you think Bush's move now is just a political ploy to soften his image to attract moderate voters?
Bright: That's a no-brainer. He has never done anything like that. He had no choice but to do what he did last week. All we are talking about is waiting 30 days to prove with certainty whether Mr. McGinn is guilty or innocent.
Q: Isn't it true though that Texans overwhelmingly support the death penalty, and hence you can't really fault a governor for doing what his state wants?
Bright: Yes, there is strong support for the death penalty in Texas. But I don't think there is strong support for the cavalier and superficial way in which cases are handled.
Q: Do you see capital punishment becoming a pivotal issue in this year's presidential election?
Bright: I think that in the United States, there is a growing realization that the criminal justice system often makes mistakes and condemns people to die. The fact that 87 people (nationwide) have been found innocent in the last 27 years, the fact that police and prosecutorial misconduct have come to light in a number of cases, have raised serious questions in the people's minds about the reliability and fairness of the system. I think that whenever you see a growing concern being raised by people like George Will and Pat Robertson, it is an indication that more and more people are troubled by this system.
Q: Do you think other states will follow Illinois' moratorium on the death penalty?
Bright: I think some states will. New Hampshire voted to abolish the death penalty altogether; its governor vetoed it. The American Bar Association and a few others have called for a moratorium. I think a lot of states are waiting for Governor Ryan's commission to report back with its study of the system before they make a decision.
Q: Let's talk about DNA testing. It's being touted as a godsend by the anti-capital punishment movement as a means to exonerate those not guilty, but doesn't it raise another dilemma: If we can conclusively prove someone's innocence or guilt, what is to prevent us from continuing with further executions, but this time with a clearer conscience?
Bright: Let me say one thing about DNA testing. DNA tests are only useful in a small number of cases where there is bodily fluid involved; not when you have a case of mistaken identity where there is no DNA. For example, a robber shoots a gas station clerk, runs off in the darkness, the police go on a hunt and come back hours later with the first person they find. The witnesses mistakenly identify him as the guy, an honest mistake on their part. DNA tests cannot exonerate him. Second thing: Many convictions rely on informants or "snitches."
Someone facing a long prison sentence says, "I will tell you what Mr. Jones said. He confessed to me and I will tell you what he said but only if you reduce my sentence."
Such informants are notoriously unreliable, but responsible for a lot of death penalty convictions.
Q: So what needs to be done to ensure the system works fairly and justly?
Bright: In places like Texas, Mississippi, Alabama and Georgia, we need to have a public defender system. Every judicial circuit has a district attorney's office with lawyers specializing in prosecuting capital punishment cases. We need a public defender's office with the same level of expertise. Right now the judges in these courts appoint local lawyers uneducated in criminal defense, let alone the sub-specialty of capital punishment, to serve as defense.
Take the example of Ray Lewis. He hired the best defense lawyers, specialists in capital cases, and he walks free on a misdemeanor charge with no prison time. But most public defenders are lawyers who work on wills and divorces and take whatever cases they can get. They lack skills but judges like appointing them because they move the dockets faster. I call them "walking violations to the right to counsel."
Q:So you're saying that disparity in financial resources plays an important role in the eventual outcome of who ends up on death row?
Bright: The old adage is still true: "You get what you pay for." You're better off in America being rich and guilty than poor and innocent. Ray Lewis' lawyers whittled his charge to a misdemeanor; Calvin Burdine's lawyer didn't even wake up during his trial. If you don't have the money, the representation you get is scandalous. There needs to be adequate resources so that a public defender has at his disposal the caliber of experts and investigators that the prosecution has.
Q: Something that a bill like Sen. Patrick Leahy's (D-Vt.) "Innocence Protection Act" would provide. Do you foresee its passage?
Bright: Leahy's bill seeks to guarantee adequate legal help for capital cases. I think some version of it will pass. It's in everyone's interest, not only to determine whether mistakes have been made, but also to bring to justice the actual perpetrator. Say, for example, in a rape case, if it's found through DNA tests that the person convicted is not guilty, then the attacker is still out there. So everyone has an interest in passing this bill.
Q: Public support for the penalty stands at a 19-year low and twelve state legislatures have introduced bills to abolish capital punishment. But three other times in our nation's past the anti-death penalty movement had been on the verge of similar success only to have capital punishment return with even greater support than before. Are those hoping for the demise of the death penalty falsely hoping again?
Bright: That remains to be seen. There's been a clear trend around the world since 1985; 34 countries have abolished capital punishment. Russia, Poland, South Africa are abandoning killing as a way of punishing people. The death penalty is limited now to countries like Iran, Iraq, China and the U.S. Normally America doesn't keep company with these nation. The only other NATO country where capital punishment is still in the books is Turkey but it hasn't executed anyone since 1984.
Q: Polls show that support for the death penalty drops sharply when the alternative -- a life sentence without parole -- is introduced. So what hurdles prevent an out and out abolition of the system?
Bright: In places like Texas, that option doesn't exist because prosecutors in Texas oppose it. They think it will make it more difficult to get the death penalty convictions and they want to be able to put people to death. Perhaps in a frontier society when we didn't have prisons, cutting people's fingers or putting them to death was the only option. Today, society can be protected by locking people up. We have these super maximum security prisons where a killer can be put away for life. We can protect the public without putting everyone to death. I think these prisons will eventually spell the end of the death penalty but I also think we have a ways to go.
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