The Texas Sleeping Sickness

Two reports have emerged in recent weeks leveling serious criticisms of the death penalty system in Texas, the state which leads the nation in executions. The reports received increased attention given that Texas Gov. George W. Bush is a candidate for the presidency and an outspoken defender of the death penalty. Yet it is unfortunate that the reports emerged in such a politically charged atmosphere, where they were liable to be interpreted as partisan attacks rather than actual calls for reform. The death penalty system in Texas--and across the nation--is broken, and regardless of the political winds, there is an urgent need to end the assembly line of executions.

Over the past few years, it has become increasingly apparent that innocent people are being sentenced to death. Nationwide, 89 one-time death row inmates have been exonerated, many of whom were identified through sheer chance. Worse, the mechanisms intended to ensure fairness in the American legal system and to prevent such fatal mistakes have stopped functioning--or, in some cases, have been deliberately undermined.

No better example of this could be found than the 5th Circuit Court of Appeals' repugnant Oct. 27 decision that the constitutional right to a lawyer is satisfied even if the court-appointed lawyer is asleep. The court rejected an appeal from the Texas courts in which the lawyer appointed to represent Calvin Burdine in a capital case had slept through a large portion of the trial. Although the facts were uncontested, and although other appeals courts have found that a sleeping lawyer is constitutionally equivalent to no lawyer at all, the 5th Circuit found that Burdine did not deserve a new trial. It argued that Burdine could not prove that the specific segments of the trial the lawyer had slept through were vital to the outcome--that a reasonable probability existed that, but for his lawyer's sleeping habits, the verdict would have been different. To ignore major deprivations of constitutional rights based on such guesswork is antithetical to basic conceptions of fairness.

Yet the court is not the only one to blame--the state of Texas, after all, prosecuted the case and has continued to fight the appeal. The two reports, released by the Texas Defender Service and the Texas Civil Rights Project, show that such nightmare scenarios as a sleeping lawyer are anything but uncommon in the Texas legal system. The reports documented a system in which incompetent lawyers are regularly appointed to defend people on trial for their lives: one quarter of all those now on the Texas death row were represented by attorneys that have been disciplined, disbarred or suspended by the State Bar. Texas has no specific competency standards for capital-case attorneys, and appointed lawyers are compensated at rates less than one-fifth what an attorney in private practice would charge, meaning that every minute spent litigating a capital case represents a severe monetary loss.

However, strong defense lawyers are especially necessary in cases where the prosecutors make mistakes. The Texas Defender Service identified 41 cases of prosecutorial misconduct, including many where the same prosecutor changed theories between trials. In one case, Gene Hathorn and James Beathard were both accused of a murder; at the first trial, the prosecutor argued that Beathard was the gunman and secured a death sentence, but at a second, the same prosecutor argued that Hathorn was the gunman and secured another capital conviction. One of those theories has to be factually incorrect--yet Beathard was executed in 1995, and Hathorn remains on the Texas death row. Other cases abound where Texas prosecutors relied on discredited scientific "experts," concealed important evidence from the defense or paid jailhouse informants with reduced sentences in exchange for what turned out to be false testimony.

Worst of all, the Texas courts have been unspeakably lax in remedying such ills. Before Bush took office, the Texas Court of Criminal Appeals had reversed 33 percent of capital sentences. Since then the rate of reversal has fallen to three percent of capital cases, while courts nationwide reverse 66 percent of capital cases. Either the trials in Texas have suddenly become miraculously free of error, or the Texas courts have been lax in their duties. In 79 of 103 appeals cases surveyed by the Texas Defender Service, the judge never held the normal hearing but instead relied on filed documents.

Although Texas is by no means the only state in which such abuses can be found, it is very easy to point an accusatory finger at the public official charged with ensuring the integrity of the Texas justice system. However, from the perspective of those who are sentenced to die, it is truly unfortunate that any attack on the Texas death row has been characterized as an attack on Bush and lost amid the general election-year hubbub. Fixing a justice system that takes innocent lives should not be a political issue, as the Republican governor of Illinois, George Ryan, showed when he declared a moratorium on executions in his state. Rather than the political aspirations of a governor, the focus of public attention to the death penalty must be those human lives threatened by a system that is manifestly unjust.