The New York Times

February 7, 2000

A Smooth Road to the Death House

By STEPHEN B. BRIGHT

Regardless of the extent of compassion in his "compassionate conservatism," Gov. George W. Bush of Texas could show some concern for justice by following the example of his presidential campaign chairman in Illinois, Gov. George Ryan, who last week announced a moratorium on executions in his state.

Governor Ryan is concerned that an innocent person might be executed. There are now 161 people on death row in Illinois. Since the death penalty was reinstituted there in 1977, 13 people who were condemned to die have been exonerated. Twelve have been put to death, and there were serious questions of innocence in the case of one of those 12.

Three people were freed from death row in Illinois after a journalism class at Northwestern University established their innocence and proved that someone else had committed the crimes. One condemned man came within two days of execution.

Mr. Bush, who has presided over more than 100 executions, has never expressed a doubt about the assembly-line process by which Texas courts dispatch people to its execution chamber. But because the system to provide lawyers for the poor is so weak in Texas, there is reason to be even more concerned about the risk of wrongful executions there than in Illinois.

And although an investigation by the CBS News program "60 Minutes" contributed to the release of a man under a death sentence in Texas in 1990, and the documentary film "The Thin Blue Line" won the release of another in 1989, there are too many cases -- more than 450 -- moving far too fast for most of them to get the attention of journalists or journalism classes.

In Illinois, many people facing the death penalty are represented by public defenders like those working in Chicago for the highly respected homicide unit of the Cook County Public Defender, which specializes in the defense of capital cases. Texas has no public defender system. Instead, the presiding judge in a case assigns a lawyer to represent the accused. Judges have sometimes chosen lawyers with an eye toward getting cases disposed of quickly, and in a survey of judges for the Texas bar association last year, more than half agreed that lawyers' contributions to judges' election campaigns at least sometimes influence the appointments.

The lawyers are compensated at far below what attorneys can make for less demanding work. They are often denied the assistance of investigators and experts necessary to make an independent determination of a defendant's guilt.

The Texas courts do not even require that defense counsels remain awake during trial. The lawyer representing a defendant named George McFarland, who is now on death row, repeatedly fell asleep and snored during his trial in Houston.

Texas' highest criminal court -- made up of judges chosen in partisan elections, some of whom ran on platforms supporting the death penalty -- upheld the death sentences in Mr. McFarland's trial and two others in which defense attorneys fell asleep. One of those defendants, Carl Johnson, was executed in 1995.

Snoring through trials is only the most visible example of the Texas system's problems. Yet last year Governor Bush vetoed a bill, passed unanimously by both houses of the Texas legislature, that would have taken a few modest steps toward creating public defender offices in Texas counties.

Besides lacking these offices, which pay lawyers a salary to specialize in defending the poor, Texas, unlike Illinois and most other states, also has no office that specializes in representing those sentenced to death in the later stages of appeal, a process called post-conviction review. Texas had such a program, but it was shut down five years ago when Congress eliminated its federal financing. Texas judges have appointed lawyers who have missed deadlines, costing the death row inmates they represent the review of their cases. Other lawyers failed to investigate the cases and filed documents that failed to identify any issues that should be reviewed.

As one Texas judge observed, dissenting in a case in which a condemned man was assigned an inexperienced lawyer with serious health problems, the lawyer's failure to recognize and present any issues "certainly makes it easier on everyone -- no need for the attorney, the state, or this court to consider any potential challenges to anything that happened at trial."

Nationwide, more than 80 people have been released from death rows after their innocence was established. There is no reason to think that Texas makes life-or-death mistakes in capital cases less frequently than other states, and good reason to think the risk is higher there.

Whether this risk is acceptable is a separate question from whether one supports the death penalty.

As Governor Ryan recognized, it is a question of fundamental fairness, of ensuring that the guilty are punished, not the innocent.

The president of the United States has no greater responsibility than to protect the fairness and integrity of our justice system. Governor Bush, who has expressed his approval of the process in Texas and refused to intervene or support reform, has failed to provide leadership in this critical area, raising troubling doubts about his ability to carry out that responsibility.

Stephen B. Bright lectures at Yale Law School and is director of the Southern Center for Human Rights in Atlanta.