Death Isn't Fair
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The most troublesome use of harmless error was in 1996, when the CCA ruled on the capital murder conviction of César Fierro, the suspect who had confessed after being warned that his parents would be tortured in Mexico. In a July 1994 affidavit, the DA at the time of the trial, Gary Weiser, said, "I believe that Medrano and Palacios colluded to coerce Fierro's confession." Had he known, he says, he would have recommended that the judge suppress the confession and dismiss the case unless he could have corroborated other testimony. The trial judge found a "strong likelihood" that the confession had been coerced and said Fierro should get a new trial. Alas, the CCA overruled a judge once again. Yes, Keller wrote, the police had lied about coercing a confession, but the trial court would have found Fierro guilty anyway. "[W]e conclude that applicant's due process rights were violated," she wrote. "But, because we conclude that the error was harmless, we deny relief." Though he believes Fierro committed the murder, Weiser thinks he deserves to go free. "I was a prosecutor for ten years, and I put a lot of people to death," he says. "I never lost one. But to execute a man on illegally produced evidence—it's wrong. It's not justice. Nobody should be convicted on illegally obtained evidence." Once again: If violating a citizen's right to due process and threatening torture isn't harmful, what is?
One of the more baffling things about the CCA is its failure to respect the fact that competent counsel is an essential part of the constitutional guarantee of a fair trial. The CCA's position is that any licensed attorney meets the competency standard. For example, in 1997 a death row inmate named Ricky Kerr wrote the CCA, saying he was worried that his neophyte court-appointed appellate lawyer was overlooking his constitutional claims and that he wanted a new attorney. The court refused. The attorney subsequently botched the appeal, which the CCA dismissed. A federal judge stayed Kerr's execution and called the CCA's actions in the case "a cynical and reprehensible attempt to expedite petitioner's execution at the expense of all semblance of fairness and integrity."
The CCA's critics say that the court is result-oriented, ruling on ideology. Asked to explain the court's sometimes bizarre opinions, former judge Baird says, "They are beyond comprehension. They cannot be understood because they are the product of judges who are intellectually dishonest. They first determine the result they want, and then they distort the law to fit that result." But a former colleague of Baird's, Mike McCormick, who served on the court from 1980 to 2000, thinks critics have an agenda of their own: "Calling a court result-oriented, well, it depends whether you're on the winning side or the losing side."
The real question is whether the role of the court should be restricted to construing the law or broadened to include dispensing justice. McCormick believes the CCA's job is to interpret the law: "One individual judge's concept of justice is not what the court is all about." And what about cases like Ernest Willis', where it looks like an injustice is being done, where it looks like the guy really might not have committed the crime? "If you have evidence of actual innocence," says McCormick, "the vehicle to get it in the system is the governor and clemency."
The Board of Pardons and Paroles is often the last chance for the condemned. It isn't much of a chance, though, and it isn't much of a board either. The eighteen members, all appointed by the governor, have never gotten together to vote in the past quarter of a century. They've never even conducted a hearing. They individually consider the cases and then vote, by fax and e-mail. "We vote on our best gut feeling," says member Paul Kiel, "with all the information we have." A pardon can be granted by the governor only on the board's recommendation. But the board has granted only two death penalty pardons since 1990, and both were requested by prosecutors. In short, the board has neither the desire nor the authority to deliberate issues of innocence. Board chairman Gerald Garrett says that innocence should be up to the judicial system. "I don't think we should casually set aside rulings of the courts," he says. It's a catch-22 worthy of the whole Texas death penalty system: No one cares about the possibility of innocence.
And so, six months after Judge Jones ordered a new trial for Ernest Willis, the Court of Criminal Appeals, in a six-page reply, denied all relief. The state's court of last resort found that Willis hadn't proved that he took the anti-psychotic drugs involuntarily; that perhaps the state had an "essential state policy" in giving them that Judge Jones never asked about; that Woolard used "reasonable professional judgment" in not calling character witnesses; and that the suppressed psychological report regarding future dangerousness was "inconclusive," an interpretation the psychologist, Jarvis Wright, disagreed with, later saying in an affidavit that he saw "no evidence that Mr. Willis would pose a future danger." Doping, cheating, bumbling—if these don't trouble the Court of Criminal Appeals, what will?
WHAT NOW?
JIM BLANK HAS FILED A habeas petition in federal court and hopes for oral arguments in Midland soon. But the odds aren't good—since Congress passed the Anti-Terrorism and Effective Death Penalty Act in 1996, the federal courts have been severely limited in granting habeas relief. Willis is beginning his sixteenth year on death row. In October 2000 he married for the seventh time, to Verilyn Harbin, the sister of former death row inmate Ricky McGinn, who was executed that same year. The two started writing each other a few years ago, then met and fell in love through the Plexiglas windows of the visitor's cage. She says, "He is the most loving person I've ever met." He says if not for her, he would have given up already.
Meanwhile, former Pecos County prosecutor Johnson, now a defense attorney, still thinks Willis is guilty. "Twelve grand jurors and twelve members of the jury—that's twenty-four people who made the decision unanimously," he says. He and other defenders of the Texas death penalty process insist that the system works. This, says Judge Michael Keasler, of the CCA, is the reason the court doesn't overturn more cases: "They're tried well. That's a tribute to the jobs the trial judges, prosecutors, and defense lawyers are doing." Try telling that to the federal judges who have castigated the system. Or to Blank. He and his firm have worked billable hours in excess of $1 million trying to get Willis off death row. Ultimately, the only death row inmates who stand a chance in Texas are those with pro bono attorneys—lawyers with the resources, experience, and desire to take on the state. And this is the final proof that the system doesn't work. Every Texan who has walked free from death row has done so with outside help—filmmakers, TV stars, preachers, activists, and pro bono lawyers, not the attorneys appointed by the state to represent them. They got out in spite of the system, not because of it.
It's an unfair system, and we need a statewide debate on how to straighten it out. The 2001 legislative session showed that capital punishment sits heavily on people's minds. Lawmakers made some changes, but more are needed: For example, beef up the Fair Defense Act, ensure that claims of innocence backed by new evidence get a hearing, restructure the Board of Pardons and Paroles, change the way we select judges to the CCA—or maybe just abolish the damned thing. At the very least, the Legislature should institute a two-year moratorium on executions, the length of one legislative cycle, while it studies the problem. In the long run, this won't prevent any justifiable executions, but it will make sure that every execution is, in the best sense of the word, justified.
SIX WHO WALKED OFF DEATH ROW.
RANDALL DALE ADAMS was convicted of the 1976 killing of a Dallas policeman who had stopped a car driven by David Harris. Adams said he wasn't even in the car at the time, but Harris said Adams was the gunman. At the trial, the state relied on an eyewitness who had picked someone else out of a lineup, as well as Harris, a sixteen-year-old with a long juvenile record. As a juvenile, he wasn't eligible for the death penalty. But Adams was, and he got it. In 1988 The Thin Blue Line, a documentary about the case, was released to great acclaim and Harris confessed. A year later Adams' conviction was overturned, and he was granted a new trial. The DA dismissed charges, and Adams was freed.
CLARENCE BRANDLEY was a black janitor convicted of the 1980 rape and murder of a white teenager at Conroe High School. Police officers intimidated a witness who said one of the school's four white janitors might have done it and refused to seek evidence that would have exonerated Brandley, such as blood samples from other potential suspects. Ten years later, with new attorneys, a New Jersey ministry, and 60 Minutes on his side, his conviction was overturned, and after the prosecution declined to retry, he was released in 1990. Whitewash, a Showtime movie about the case, was released earlier this year.
RICARDO GUERRA, an illegal immigrant, was riding in a car in Houston in 1982 with friend Roberto Flores when they were stopped by a policeman. Shots were fired from Flores' gun, and both the officer and Flores were killed. Though all evidence pointed to Flores as the shooter, the police went after Guerra, hiding evidence pointing to Flores, bullying witnesses to lie, even threatening to take one witness's child away if she didn't cooperate. After Vinson and Elkins took the case pro bono, Guerra's conviction was overturned in 1997 by a federal court, which called the police misconduct "outrageous." The DA dropped all charges, and Guerra was freed.
KERRY MAX COOK was convicted of sexually mutilating and killing a woman in 1977. His sentence was overturned in 1997 because the prosecution had withheld evidence and used statements from a witness who had previously made conflicting statements. Days before a new trial, Cook pleaded no contest and was released. Soon afterward, DNA tests on semen found in the woman's underwear proved it didn't belong to Cook after all but to her married boyfriend.
MUNEER DEEB was convicted of hiring David Wayne Spence to kill one of the three victims of the 1982 Lake Waco murders. The only substantive evidence against him came from two jailhouse informants, one of whom later recanted. The Texas Court of Criminal Appeals overturned the conviction in 1991, and Deeb was acquitted at a new trial.
