June 2, 2002
Austin American-Statesman


(As project director of Stand Down Texas, Steve Hall works in a one room
office in South Austin to stop the death penalty in Texas.)

Troubling question is eroding support for death penalty
100 condemned inmates, including 7 in Texas, have been exonerated or
released

It is a weary building with barred windows, hunkered down beside an
off-brand convenience store that trades heavily in beer and lottery
tickets. Activists of various liberal stripes have carved its apartments
into nooks and crannies from which improbable social causes are pursued.
In his office up the bare wooden stairs, Steve Hall undertakes one of the
lonelier political quests in Texas: fighting the death penalty in a state
that embraces execution with few reservations.

Lately, the director of StandDown Texas has sensed energy coursing through
the body politic, tremors that may well mean plates are shifting beneath
the national debate on capital punishment. It's not that the majority of
Americans - and Texans - don't still favor executions. They do.

But fears are increasing that the death penalty as practiced has gone
awry. A quarter century after the U.S. Supreme Court allowed executions to
resume, concern is growing that police, prosecutors, judges and juries
have crafted a system fraught with risk that an innocent man or woman will
be put to death.

Death penalty opponents now count more than 100 cases across the country,
including seven in Texas, in which death row inmates have been freed,
exonerated or released because there were too many questions about their
guilt. Serious errors occur in 68 percent of death penalty cases,
according to statistical evidence compiled by researchers at Columbia
University, leading to the release or resentencing of those convicted. The
academics argue that the system is "collapsing under the weight" of its
mistakes.

Newly available DNA testing is clearing inmates across the country of
crimes and anecdotal evidence, such as that of the Texas lawyer sleeping
in court while his client was on trial for his life, have fueled debate
over how death sentences are meted out.

It is no longer just death penalty opponents who are struggling with the
question. More and more death penalty supporters have begun asking that
executions be stopped so time and care can be taken to fix a broken system.

"We're talking about some serious, conservative, pro-prosecution people
who have some fundamental questions about whether we know what we're doing
right now," said Sam Millsap, who successfully prosecuted several death
penalty cases during his term as Bexar County district attorney from 1982
to 1986. "What we're saying is 'Let's stop the train until we've got a
system we're confident works.' "

Calls for moratorium

The search for some form of death penalty reset button began two years
ago, when Illinois Gov. George Ryan halted executions and launched a study
of why his state has freed more apparently innocent men from death row
than it has put to death. A 14-member commission recently released its
recommendations for wholesale changes in that state's death penalty laws.

Earlier this month, Maryland Gov. Parris Glendening also halted executions
to allow time for study of whether racial bias has infected that state's
death penalty process.

Even in Texas, which has executed 15 people so far this year, talk of a
moratorium surfaced during the last legislative session and seems certain
to come up again when lawmakers meet next year.

Ryan, a Republican, and Glendening, a Democrat, are both death penalty
supporters and say they only want time to ensure the system is fair. Their
concerns are not isolated.

In late April, U.S. District Judge Jed Rakoff of New York stunned
prosecutors by announcing that he is likely to declare the federal death
penalty unconstitutional because "evidence has emerged that clearly
indicates that . . . innocent people, mostly of color, are convicted of
capital crimes they never committed . . . with a far greater frequency
than previously supposed." Rakoff gave prosecutors time to file arguments
that might change his mind and has not issued a final ruling.

Perhaps more striking, two sitting U.S. Supreme Court justices have made
rare public comments expressing their concerns about the fairness of the
death penalty.

"If statistics are any indication, the system may well be allowing some
innocent defendants to be executed," Justice Sandra Day O'Connor told a
law conference in Minnesota last summer. Three months earlier, Justice
Ruth Bader Ginsburg said in a speech that she had "yet to see a death case
among the dozens coming to the Supreme Court on the eve of execution
petitions, in which the defendant was well represented at trial."

The public utterances of the Supreme Court justices have helped focus
attention on whether the high court is tipping toward reining in capital
punishment. All eyes are on a Virginia case that seeks to have the
execution of defendants with mental retardation declared unconstitutional.
Last year Texas Gov. Rick Perry vetoed a bill that would have barred
executing defendants with mental retardation.

Earlier this week, however, the high court rejected a death row appeal
that raised questions of incompetent counsel, the very issue that seems to
have troubled O'Connor and Ginsburg.

Still, with each small step, death penalty opponents grow more hopeful
that the country is headed toward widespread, and perhaps permanent,
rejection of capital punishment.

"The tide is turning," said David Elliot, spokesman for the National
Coalition to Abolish the Death Penalty. "We're already seeing people
stepping back and being more reflective about the death penalty, people
willing to engage in a conversation about whether the death penalty might
be flawed." Moratorium supporters may be only partial converts, Elliot
said, but stopping executions temporarily is a major win for
abolitionists. Once stopped, perhaps they will not start again.

Some of Elliot's optimism has filtered all the way down to Steve Hall's
modest office in South Austin. Texas figures to be the last place where
executions are halted, Hall conceded. But for Texas to be last, others
must go first.

"You can't cross a bridge until you've built the bridge," he said.
Although none of the major candidates for statewide office in this year's
election favor a moratorium on executions - much less abolition of the
death penalty - Hall said he has reason for optimism.

A Scripps Howard Texas Poll conducted two years ago found that 57 percent
of Texans - and 52 percent of death penalty supporters - think the state
executes innocent people. That is a soft spot Hall can target.

The winds of change are blowing, he thinks. Time will tell whether they so
much as ruffle Texas.

The innocence factor

"The dynamics have changed," Dudley Sharp said. "The anti-death penalty
movement has found an avenue that really rings significantly with the
public, and that's the innocence issue."

Sharp is a commercial real estate broker and self-designated death penalty
specialist with Justice For All, a Houston victims' rights group, which
lobbies for capital punishment. Sharp said he does not believe that
innocent men and women are likely to be executed. There are ample appeals
and protections in place, he said, and if it seems too many people have
been released from death row, that's proof the system works, not that it
is broken.

But he concedes that death penalty opponents have him on the defensive.

"We are the most active pro-death penalty voice in the country," he said.
"There is not anywhere in the U.S. per se a pro-death penalty group or
organization whose only function is to promote the death penalty. However,
there's probably at least 200 groups in the U.S. that are specifically in
existence only to oppose the death penalty."

For years, those opposition groups cast about for a persuasive argument.
They tried convincing the public and politicians that the death penalty is
immoral, that it costs too much money, that it is a lightning rod for
international condemnation and that it does nothing to deter crime. None
of the assertions gained much traction.

But the question of innocence has found resonance. Even people who
fervently believe that the Timothy McVeighs of the world deserve to die
are troubled by the prospect of executing someone innocent.

"I am convinced that most of the people on death row are guilty," said
Houston attorney Scott Atlas, of the Vinson & Elkins law firm. "The
problem is that it is difficult to argue that all of them are guilty."

Atlas' opinion is informed firsthand. In 1997, he won release of Ricardo
Aldape Guerra from death row in Texas. Atlas and his firm spent five years
clearing Guerra of a crime he almost certainly did not commit. The
experience left Atlas a supporter of both the death penalty and a
moratorium.

Atlas is emblematic of recent changes in the debate. He took just one
class in criminal law at the University of Texas and stopped going because
the professor was "thoroughly boring." He graduated in 1975, clerked for a
federal judge, then plunged into a career of antitrust, commercial fraud
and breach-of-contract cases. He gave little thought to capital punishment.

"While I was not naïve enough to believe the system was perfect, I assumed
the system was reasonably designed to minimize the prospect of a wrongful
conviction, much less an execution," Atlas said. "That's where I've had
the biggest change of heart."

Atlas now believes that many capital murder defendants end up with lousy
lawyers and don't have access to resources readily available to the
prosecution, such as experts and investigators. And he knows reversing a
death sentence after the trial lawyer falls down on the job is no easy
feat. Something needs to be fixed, although he does not support abolishing
the death penalty.

"I do think it impossible to ever guarantee perfection in the system. I've
fortunately never had to confront the issue of where my line would be, but
it's certainly not where we are now," Atlas said. "For truly heinous
crimes, for the Tim McVeigh who clearly had adequate representation, the
best money could buy, an awful crime, overwhelming proof of guilt, I am
not bothered by him receiving the death penalty. The question is, am I
willing to spare him and others like him because there's a one in a
million chance someone innocent will be executed? That's a level of risk
I'm willing to take."

How far below one in a million must the odds fall before the risk is
unacceptable? That question beats at the heart of the current death
penalty debate.

Reading the numbers

Hard-core death penalty opponents argue that the odds of someone innocent
being executed are clearly too great. As proof, they point to the 101
death row inmates freed in the last 25 years. If that many mistakes have
been caught, opponents ask, how many remain undiscovered?

"This seems to be the issue that really sticks in people's craw," said
Rick Halperin, a Southern Methodist University history professor and
president of the Texas Coalition to Abolish the Death Penalty. "More
people have expressed serious reservations about the possibility of
killing innocent people as an acceptable policy, even if the numbers are
really low."

But where Halperin sees unacceptable risk, pro-death penalty advocates see
a system that is working. Of the 101 freed inmates "there might be
evidence that 30 of those people are actually innocent. Might be," Sharp
said, arguing that the rest may have been released, but there isn't
compelling proof they weren't guilty.

Sharp doesn't concede there have been even 30 "mistakes," but if there
were, he said, "we're talking about four-tenths of 1 percent of the people
sentenced to death since 1973, and none of them have been executed. This
might be the most accurate criminal justice sanction that has ever been
devised."

Former Bexar County prosecutor Millsap disagreed.

"While I sit here today with no reason to believe that any people who were
executed as a result of my watch were innocent, I am not satisfied that
the system today guarantees that innocent people will not be executed," he
said.

Running for president in 2000, former Gov. George W. Bush stated without
equivocation that Texas has never executed an innocent man. Millsap and
others are not so sure. Millsap said he was pushed into the moratorium
camp largely by the case of Gary Graham, who was executed in June 2000
despite haunting questions about his guilt.

While the average citizen or voter is unlikely to parse capital cases as
finely as Millsap does, the numbers supporting capital punishment in
public opinion polls have been slipping the past few years.

Attack from the edges

When the U.S. Supreme Court decided the landmark case of Furman v. Georgia
in 1972, it did not find that executions are cruel and unusual punishment.
But it did decide by a 5-4 margin that the death penalty as it existed
then was arbitrary and capricious, so it wiped out all of the nation's
death penalty laws and told the states to start over. Eventually 38 states
instituted new death penalty laws. Texas was among them.

Since then, death penalty opponents have come at the issue from the
margins. If executions are constitutional, they have argued, might a death
sentence at least be forbidden if the accused is mentally retarded, or was
younger than 18 when the crime was committed, or has become so mentally
impaired that he or she does not realize what is about to happen as he or
she is strapped to the gurney? The arguments have had mixed success.

A state struggle

Almost no legal observer looks to the high court for another Furman-style
decision to cast out all of the nation's death penalty statutes. Instead,
the battlegrounds now are in each state capital. "The legislatures are the
ones who ultimately will have to be the ones to get rid of the death
penalty," abolitionist Elliot said.

In Texas, that's a hard sell. The state has long withstood blistering
criticism for its frequent executions. Two high-profile cases in the past
two weeks again thrust Texas into the international spotlight.

Johnny Martinez was executed May 22 despite pleas from his victim's mother
that his life be spared. Six days later, Napolean Beazley was executed,
even though Amnesty International, five Nobel laureates and countless
clergy tried to stop the execution because Beazley was 17 when he killed
the father of a federal appeals court judge.

In 2001, state Rep. Elliott Naishtat, an Austin Democrat, introduced a
bill that would have given the governor the power to impose a moratorium
on executions. Rep. Harold Dutton, a Houston Democrat, and Sen. Eliot
Shapleigh, an El Paso Democrat, sponsored similar bills, all of which
stalled.

Naishtat doesn't want to be accused of being soft on crime, one of the
sure death knells of Texas politics. When asked whether he opposes capital
punishment, he said: "That has nothing to do with my feeling that I feel a
need to give the governor of Texas the authority to declare a moratorium
if he chooses to do so. You can probably say that there are many
individuals in respected positions throughout the country who may or may
not have settled opinions on the death penalty per se but agree that the
death penalty has been administered in certain, if not all, states in
questionable manners."

Hardly fighting words, but about the strongest sentiment death penalty
opponents can find among elected officials in Texas. Naishtat, Dutton, and
Shapleigh are expected to introduce their bills again next session.

A Texas governor does not have the power to unilaterally halt executions.
The state constitution forbids it. The governor also cannot grant pardons
or commute sentences of his or her own volition. The constitution requires
the Board of Pardons and Paroles to first endorse such acts.

Having their hands tied has allowed Texas governors easy cover, death
penalty opponents charge. When asked about the death penalty or
moratoriums, they can accurately respond that the issue is beyond their
control, as Bush did when the issue arose during his presidential race. A
governor, lieutenant governor or attorney general could certainly take the
lead in pushing for legislation to allow a moratorium, Hall noted, or use
their positions to focus attention on the issue.

But death penalty reform is not even a whisper of an issue in this year's
elections.

The six major candidates for governor, lieutenant governor and attorney
general all favor executions and oppose a moratorium. Asked whether they
believe there are innocent people on Texas' death row, each of the
candidates - Gov. Rick Perry, Democratic challenger Tony Sanchez,
Republican lieutenat governor candidate David Dewhurst, Democratic
lieutenat governor candidate John Sharp, Republican attorney general
candidate Greg Abbott and Democratic attorney general candidate Kirk
Watson - stepped around the question.

Dewhurst, for example, said it is "not his place to second-guess the
decisions made by juries."

State. Sen. Mike Moncrief, a Fort Worth Democrat, understands the
reticence that capital punishment prompts in his political colleagues.

Moncrief's views on the death penalty are instructive, because he does not
plan again to face the will of the voters and will leave the Senate after
12 years. He remains a staunch death penalty supporter but agrees a pause
in executions might be needed to ensure that only the truly deserving are
executed.

"As acting governor on three separate occasions, I have had to preside
over executions, and that is a very heavy burden to bear," he said.
"Without exception, it is something that I think about every day and will
probably think about every day the rest of my life.

"I think there's a clear possibility - and a high probability - that we
have executed innocent people in this state. I don't know if that will
ever be known. I don't know there's any way to prove that has happened."
-------
By David Pasztor
pasztor@statesman.com; 445-3631

http://www.austin360.com/aas/metro/060202/0602deathpen.html