A Saint on Death Row (13 page)

This letter gives us a hint of the immensity of the forces that a poor convict is up against and of the anguish of the losing situation that an intelligent but resourceless person is likely to find himself in should he have the misfortune to be convicted—or even accused—of a crime in the State of Texas. Dominique is begging—and has been begging for a full year— to receive documents that would have been given him as a matter of course elsewhere. Similarly, his urgent requests that the acquitting security tape from the convenience store be located and viewed have fallen on deaf ears. What is going on here? Why is the lawyer so unresponsive?

In the issue released just before Dominique's execution,
Texas Monthly
featured a courageous article by Michael Hall entitled “And Justice for Some,” which lifted the veil on the Texas justice system. Sheila, who always felt she was leaving
the United States when she journeyed into Texas, read the article and thought that at last she understood what had been transpiring all along. I remind the reader that one Texas court, the Court of Criminal Appeals (CCA), the highest criminal court in the state, which handles all criminal appeals (while the Texas Supreme Court handles civil matters), was responsible for denying several of Dominique's most important appeals (see page 32).

As revealed in the
Texas Monthly
article, this court is “ruled by a bunch of pro-prosecutor, right-wing ideologues with one goal in mind: keeping inmates behind bars no matter what.” Tom Price, a (usually dissenting) judge on the court, calls it “a national laughingstock.” But it is no laughing matter to the many petitioners whose cases Michael Hall recounts: for instance, Roy Criner, a twenty-one-year-old logger, whom the CCA meant to keep in prison forever, even though multiple DNA tests proved that he did not commit the rape he was convicted of; Ernest Willis, drugged with powerful antipsychotic medicines in the months before his trial, “turning him into a drooling zombie, something the prosecutor made full use of in front of the jury;” and many, many other defendants.

The unfortunate Willis was convicted of setting fire to a house in a Texas town that killed two women. When his appeals attorneys uncovered evidence of the drugging, as well as evidence withheld by the prosecutor, both of which Willis's court-appointed attorney had gone along with, his trial judge wrote a thirty-three-page opinion recommending a new trial, which the CCA turned down. A federal judge intervened in
2000 to remove Willis from Death Row—the first inmate to walk free in nearly four years. Without question, the judges of the CCA knew that Willis was innocent, but their policy was not to let anyone go. Roy Criner escaped their clutches only because the PBS show
Frontline
featured his case in an episode called “The Case for Innocence.” This was also in 2000, and the notoriety occasioned by the program that summer clashed with George W. Bush's aspiration to be president. So the then governor made a single exception to his oft-stated policy of abiding by the decisions of the CCA and released Criner.

In 1994, “on the heels of Bush's successful run for governor,” writes Hall, “Republicans swept into statewide office.” Among those swept in was a little-known lawyer named Sharon Keller, now well-known as “Sharon Killer,” who was soon to become the CCAs “philosophical leader” and in 2000 its presiding judge. Her mission, in part, has been to refuse reviews and retrials to anyone who could not “establish innocence”—a totally new standard and one that is virtually impossible to meet. More and more, writes Hall, the judges of the CCA were “ex-prosecutors whose main goal seemed to be to satisfy the state's appetite for execution.” It may come as a surprise to non-Texans that “the judges on the CCA are elected politicians,” who get themselves elected by being “careful to paint themselves as tough on crime and criminals, whatever the cost.”

Judge Keller's rulings have been consistently shocking. When, for instance, the case of Cesar Fierro, a Mexican immigrant, came before her, it was because it had been discovered, after Fierro had spent fifteen years in prison, that he had confessed
to murdering an El Paso taxi driver only because the local police had told him that if he didn't confess, their Mexican colleagues across the border in Juarez would torture his mother and stepfather, whom they had taken into custody. Keller's conclusion: “We conclude that applicant's due process rights were violated. But, because we conclude that the error was harmless, we deny relief.” By this move, Keller actually changed the standard in capital habeas cases, making the effective use of habeas corpus virtually impossible.

Fierro has now been on Death Row for twenty-eight years and, as I write these words, is facing imminent execution, despite the recent affliction of serious mental illness. There is simply no evidence that he committed the murder. “This,” said a heroic Texas lawyer who has spent much of his life defending indigents, “is a brutally tragic case.” Perhaps Keller's most famous denial of a stay of execution was in the case of Karla Faye Tucker, who made the mistake of asking George W. Bush for mercy, a plea that he ridiculed notoriously to the journalist Tucker Carlson after her execution.

Hall makes the obvious recommendation that the CCA should be disbanded and its duties to rule on requests for review turned over to the state's Supreme Court, as is done in every other state except Oklahoma. A central problem of the Texas system, however, aside from the current predisposition of the CCA judges, is that the state has no set standards for the appellate lawyers whom the CCA appoints to handle criminal appeals. Till recently—and of course at the time of Dominique's trial—it had no set standards even for courtappointed
trial lawyers nor any set procedures for appointing them! Orlando Garcia, a federal district judge, has spoken out against the arbitrariness of the way the CCA appoints lawyers to represent poor clients: “My biggest concern with the court is how it goes about appointing lawyers. Who does that? Is there an application? Or does any judge just add any attorney he wants?” In one of the cases that came before him, Garcia granted a stay of execution after deciding that the CCA's appointment of the lawyer was “a cynical and reprehensible attempt to expedite petitioner's execution at the expense of all semblance of fairness and integrity.”

“A good lawyer,” writes Hall, “can save a man's life, or at least give him a fair shot. A bad lawyer or just an inexperienced one—intimidated by the state's staff of efficient assistant DAs, ignorant of the art of investigation or the fine points of evidence, overwhelmed by the paperwork and deadlines—can send a man to Death Row.” Texas's penchant for paying its lawyers a pittance to defend indigent clients (in contrast to the substantial funds expended by comparable states, such as California) hardly helps matters. The truth is that Dominique never had a fair shot; he never even had a chance. He was convicted and executed by a system that has no regard for fairness and no regard for human life.

Well, that may be too broad a charge. This system seems to have had quite a lot of regard for the life of Patrick Haddix, the white coconspirator. But it is a system that regularly—and we might even say, as a matter of course—discriminates against the poor and minorities (and God help you if you're poor
and
a
member of a minority). As a young, conscientious, white lawyer told me with almost uncontrollable rage in his voice, “In Texas, the object is to fry as many niggers as possible.”

Since 1976, when a more conservative U.S. Supreme Court once again gave the go-ahead to state executions (after some years in which the practice had been deemed “cruel and unusual” under a more liberal Court consensus), Texas has succeeded in executing 425 people, all poor, most from minorities. The next largest state count is Virginia's, with 102 executions. After that, the numbers (at least outside the South) drop sharply, while many states (and more each year) have stopped executing altogether.

Even in Texas, there is not a uniform thirst for execution. By far the most executions stem from sentences in Harris County, where Houston is located and where Dominique was tried.
^∗
Recently, Harris County District Attorney Chuck Rosenthal, an ethnic Jew whose membership as a Southern Baptist had greatly helped his rise to political prominence, had
to step down after a series of his racist e-mail messages was made public. (Also, sexist e-mails. What a surprise.)

The conduct of criminal law in Texas is a judgment not only on Texas but on all American lawyers and jurists and, in the end, on all Americans. Texas, after all, is not a foreign country but an integral part of the United States of America. It is not enough to bemoan the strange vindictiveness of Texans, then wring one's hands and turn to other things. (Are we satisfied that justice should thus depend on geography?) Nor is it enough to limit one's attention only to the use of the death penalty, whether in Texas or elsewhere. The terrible fate of Dominique was bound up in a skein of ugly, mismatched threads, which are the social causes of his suffering and death. The first, and perhaps the most obvious, cause may be found in society's indifference to its threatened children. How easily we ignore the cry of poor, abused, and neglected children. How few are the effective programs of intervention that we have created to help them and their confused, beset, screwed-up parents. The Mexican-American journalist Joe Loya—a friend of mine, a softhearted soul who spent many years in prison for his role as the fearsome Beirut Bandit, who had a long winning streak robbing banks up and down California— once said to me, “I never met a man in prison who had not been beaten by his father or his mother or abused or abandoned.” Are we really so dull-witted, so uncreative a society that we can come up with no better response to the plight of such children
than the inadequate social welfare programs sponsored by most states, as our governments bide their time till these unfortunate children grow old enough to be incarcerated?

A second cause may be found in our indifference to criminal law and to legal procedures that we assume will never involve us (so why should we need to be concerned?). The way our society treats its most vulnerable and unprotected citizens is a judgment on all of us who have the money to purchase and read a book—and therefore are likely to have the money to purchase adequate legal assistance. We all need to familiarize ourselves with the injustices that have been done—and continue to be done—in our name.

In addition to the necessary reform of criminal law and of legal protections for indigent and near indigent defendants, we have an obligation to protect prisoners from arbitrary indignities and cruelty. There is no good reason, for instance, that Death Row inmates must be kept in solitary confinement. Desmond Tutu nailed it when he called that a form of torture.

So in the last section of this book, I make a few suggestions for your continued reflection and involvement in three areas of our social life: the protection of children, the end of the death penalty, and the humane reform of prisons. The first list offers additional books, reports, and Web sites that some readers may wish to consult. The second list offers a short series of organizations, one or more of which you may wish to join and support with contributions of money and/or labor, or from which you may wish to request assistance for a project in your community.

It may be stated unequivocally that there are no good arguments in favor of the death penalty. On the one hand, it is not a true deterrent, since states without the death penalty inevitably have far lower murder rates than do states that allow capital punishment. Life without parole, on the other hand, always holds out the possibility that subsequent evidence will exonerate a condemned prisoner. If he has already been executed, an eventual reversal of his conviction will be more ironic than exonerating. The likely estimate is that one in every eight prisoners executed is innocent. Life without parole costs a state much less than does an execution. A 2005 New Jersey report, for instance, found that the state's death penalty has cost taxpayers $253 million since 1983 without succeeding in executing anyone. This is because New Jersey's safeguards for criminals are more generous than those of Texas—that is, more fair—but all states that execute spend considerably more on executions than they would have spent on life without parole.

The figures cited here may easily be confirmed by consulting the Death Penalty Information Center and other reputable sources. The reason that it costs far more to execute a prisoner than to keep him in prison for life lies in the state's costs in responding to the legal appeals that the prisoner files subsequent to his conviction. The Joint Legislative Budget Committee of the California Legislature, for instance, found in 1999 that “elimination of the death penalty would result in a net savings to the state of at least several tens of millions of dollars annually, and a net savings to local governments in the
millions to tens of millions of dollars on a statewide basis.” While it would be possible to shorten the appeals process, this could be accomplished only by eliminating the protections guaranteed to every citizen by the U.S. Constitution.

That states that execute tend to execute the poor and minorities is an assertion not open to contradiction. As Supreme Court Justice Harry Blackmun said in 1994, “Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.” About 40 percent of the people on Texas Death Row are black, as opposed to 12 percent of the general Texas population. As for the race sensitivity of our criminal justice system, it has been shown that even prosecutors in Philadelphia, where one might expect race to play a lesser role, attempt to remove 52 percent of potential black jurors while trying to remove only 23 percent of all other potential jurors. If they do this in the green tree of Pennsylvania, the racially stacked juries of dry-tree Texas should come as no surprise.

Almost all Christian churches are now opposed to the death penalty on moral grounds—the most prominent exception being the Southern Baptists, who constitute the second largest Christian denomination in the United States.
^∗
Once
again, as when we found ourselves in the hospice at Huntsville, we find ourselves faced with a theology of extreme Calvinism that, one cannot help but notice, shares something in common with the cruel urges of primitive peoples toward acts of human sacrifice. A Calvinism that depicts God as demanding the death of his son as expiation for human sin, as arbitrarily assigning some to eternal happiness, others to eternal damnation, may have little trouble offering up some lives— especially those of the poor and marginal—to the executioner. Take him, not me! is the ancient cry of those who believe in a God of vengeance rather than of love.