Reasonable Doubt 
And Justice for Some
Over the past ten years, the Texas Court of Criminal Appeals has disregarded exculpatory DNA evidence, threats of torture, bad lawyering, and in some cases, all common sense to uphold convictions in keeping with its tough-on-crime philosophy. Why should toughness steamroll fairness?
eileen says: Hi Carl, If you register as a user on our site (it’s free! and easy!), you will get access to the archives. Please feel free to contact me, edsmith@texasmonthly.com. (March 11th, 2010 at 3:34pm)
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In 2000, after the truth came out, a federal judge recommended a new sentencing hearing. The U.S. Court of Appeals for the Fifth Circuit reversed, and Banks was given a March 12, 2003, execution date. In the days leading up to the lethal injection, the Houston Chronicle, the Dallas Morning News, and the San Antonio Express-News all editorialized about the unfairness of the case. Banks’s last judicial hope in the state of Texas was the CCA, which had denied three previous writs of habeas corpus, the appeals phase at which a defendant brings up constitutional issues, in particular the failure to get a fair trial. On March 10, 2003, the court denied the petition again. (Banks had been denied a federal writ of habeas corpus as well.) In her opinion, Cathy Cochran, who had been appointed to the court by Governor Rick Perry in 2001, wrote, “In baseball, the batter is out after three strikes . . . applicant has had five strikes at habeas corpus relief. After 23 years . . . applicant has had his fair share of due process.”
Ten minutes before Banks was to be executed, however, the phone rang. The U.S. Supreme Court stayed his execution. The court took up the case in its next term, and at oral arguments an incredulous Justice Anthony Kennedy asked the assistant attorney general representing the state, “So the prosecutor can lie and conceal, and the defendant still has the burden to discover the evidence?” This past February, the Supreme Court, in a strongly worded 7–2 decision, left little doubt as to what it thought of Cochran’s theory, overturning the death penalty but keeping the verdict. The state, the court found, had withheld important evidence at trial and then lied to ensure Banks would get the death penalty. “As to the penalty phase,” wrote the court, “one can hardly be confident that Banks received a fair trial.”
The tortured 24-year-long Banks case reveals just how much the adversarial system is a dogfight. It’s no secret that police and prosecutors are under heavy pressure to win, especially after a brutal murder such as Whitehead’s. The cops are allowed to lie some—in interrogations, for example—and prosecutors are allowed to exaggerate. That’s part of their job. But they can’t cheat when it comes to evidence, and they can’t lie in front of a jury to encourage it to vote to execute someone. As the Supreme Court wrote about the role of the prosecutor 69 years ago: “While he may strike hard blows, he is not at liberty to strike foul ones.” Prosecutors must play fair, even if they’re dealing with someone who they believe shot a sixteen-year-old boy in the head.
“What this is all about,” says Amarillo defense attorney Warren Clark, who has argued before the CCA many times, “is following the rules. Everybody is bound by the system. In this case, the system broke down—in Banks it’s an obscenity. The CCA knew the prosecution lied and everybody just shrugged their shoulders.” In both Fierro and Banks it was clear that the prosecutors and the state felt that they had their man, so they went overboard to keep him—and then punish him. But, says University of Texas law professor and defense attorney Rob Owen, a longtime CCA antagonist who ran for a seat on the court in the last election: “If you indulge the state in cheating when guilt is clear, it tempts the state to cheat in cases when guilt is not clear.” Adds a federal judge, who spoke on condition of anonymity: “Most people think, ‘If a guy did it and didn’t get a fair trial and didn’t get a good lawyer, what are we arguing about?’ What people don’t get is that if the government is allowed to overreach and skew the system, it can do it to anyone.”
NOT LONG AFTER the Fierro decision, in 1996, three new Republicans were elected to the court. The next year Keller established herself as the CCA’s leader, writing 29 opinions, more than any other judge. Charlie Baird, a holdover liberal with whom Keller did not get along, either politically or personally, wrote the most dissents; he was often joined by fellow Democrat Morris Overstreet, the only African American to ever serve on the CCA. Baird says the court was changing in more ways than one. “It used to be,” he says now, “we would conference all day Monday and half the day Tuesday—all nine of us, fully discussing the cases. Toward the end of my tenure, in 1997, we’d talk about an hour a week. The other judges would not entertain anything Overstreet or I had to say. They were of one mind: ‘This is the result we want.’ We talked very little about Fierro.”
Too many new judges were getting elected too fast, says former judge Charles Campbell. “To maintain continuity,” he says, “an appellate court depends on institutional memory: a knowledge of how the system works, case law, the Legislature, how the law should change, what’s the right thing to do. It’s not simply a matter of following precedent but understanding what following precedent means.” And during the mid- to late nineties, the precedents fell. “The court had an agenda: reevaluating defense-oriented decisions,” says UT law professor and longtime court observer Robert Dawson. “They overturned a bunch of these cases. Some needed overturning, some did not.” Sometimes the court seemed to bend over backward for the state. In 1993 Jose Santellan Sr. killed his girlfriend in a parking lot, then drove away with the body. In order to get the death penalty, the prosecutor in the case had to show that the killing was committed in the course of another felony, such as kidnapping. However, since you can’t kidnap a dead body, the prosecutor called the crime attempted kidnapping—and got his death penalty. The CCA affirmed the capital conviction anyway, adding that there was a “reasonable inference” that the woman was “still alive” when Santellan put her in the car. A federal judge later overturned the death sentence, saying the CCA’s ruling was “wholly improper” and “lacked judicial integrity.” It was, he wrote, a “specious theory.”
Perhaps the best proof of the court’s new pro-state tendency was its habit of overturning mandates from trial judges for new trials. Between 1995 and 2002, it did so at least seven times. “If there’s one thing we didn’t do much that the Keller court has done,” says Campbell, “it’s overruling trial judges when they make recommendations for new trials. The trial judge has the people in front of him. He’s watching their body language. If the trial judge is willing to stick his neck out and recommend a new trial, for crying out loud, something bad must have happened.” Defense attorneys protested, but it did no good. Mike Charlton, one of Roy Criner’s appellate attorneys, remembers, “The court was run by a group of judges who were bound and determined to turn the state’s jurisprudence in a conservative direction. By 1998 the standard joke among appellate attorneys was that we were losing so often, our IQs had dropped fifty points between 1994 and 1998.”
During this time, Keller rarely faltered in her mission, refusing, for example (along with the rest of the court), to grant a stay of execution to Karla Faye Tucker, the notorious killer and born-again Christian. Her 1998 Criner decision, which came a few months later, reads in retrospect almost like a dare to defense attorneys everywhere: Go ahead. Bring your DNA evidence. The former free-spirited college student, who had been awash in the relativism of the seventies, had become a moral absolutist. She had no compunction about harsh punishment for people who’d made mistakes, even when, like Tucker, they’d sincerely repented, and no doubts about her mission, even when confronted with science. In many ways she resembled the man whose political lead she had followed in 1994, George W. Bush, who had gone through his own desultory times only to come out on the other side with a stubborn good-versus-evil view of the world.
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