The Unique Brutality of Texas
Why the Lone Star State leads
the nation in executions
by Joseph Rosenbloom
The American Prospect magazine,
Gathering dust in Texas Governor Rick
Perry's inbox is a clemency petition from Joe Lee Guy, a death-row
inmate. The petition declares that "the integrity of Guy's
capital trial was severely compromised." Considering how
horrendously the wheels of Texas justice turned for Guy, the petition's
claim seems, if anything, understated.
In 1994, Guy was sentenced to death for
his role, the year before, in the robbery of a grocery store and
the murder of its proprietor, Larry Howell. Guy was the unarmed
lookout for two other men, Ronald Springer and Thomas Howard.
Springer supplied the .22-caliber pistol that Howard used to shoot
Howell. Springer and Howard received life sentences.
Guy's involvement in the crime was never
in question, but something went terribly wrong in his legal defense.
Frank SoRelle, the investigator hired by the defense, developed
a "relationship" with Howell's elderly mother, who was
seeking Guy's execution, and SoRelle eventually inherited her
$750,000 estate. The work performed by SoRelle and Guy's lawyer
was woefully inadequate: The sentencing jury never heard important
mitigating evidence, such as the fact that Guy grew up poor and
neglected by a gambling-addicted mother, and that he was hampered
by extremely limited intelligence.
When the circumstances of Guy's case came
to light years after his conviction, it was more than even the
Texas Board of Pardons and Paroles could stomach. The board reviews
clemency appeals in death-penalty cases and recommends "yes"
or "no" to the governor (who may grant clemency only
if the board recommends it). The board almost never votes "yes"
in a case where a death-row inmate seeks clemency; it's done so
just four times since 1990. But in January, the board unanimously
urged Perry to commute Guy's sentence to life.
Despite that extraordinary vote, however,
Perry is withholding a decision until all federal appeals are
exhausted. That Perry is ducking the question speaks volumes about
the political climate around the issue of capital punishment in
Texas. At a time when many other states have been questioning
their death-penalty systems, the Texas political establishment
has expressed no such doubts.
Is it any surprise, then, that the state's
death-penalty machinery has been steaming right along?
A Democrat turned Republican, Perry was
lieutenant governor during the gubernatorial tenure of George
W. Bush, and he became governor in January 2001, when Bush took
office as president. During Bush's six years in Austin, Texas
executed 152 people-a modern-day record for a governor. Since
then, 82 more have been put to death-a rate that approaches Bush's.
The numbers on Perry's watch would almost certainly have been
higher if a Supreme Court ruling two years ago had not prevented
the execution of 38 death-row inmates in Texas because of mental-retardation
Why Texas continues to execute people
at much the same clip seems rooted not so much in public opinion
(polls show that the proportion of Texans favoring capital punishment
approximates the national average) as in the state's peculiar
political and judicial circumstances. Conservative Republicans
have consolidated their power over all the state's main political
institutions, ! including the judiciary. Judges, who are elected
in Texas, know that any decision appearing to offer leniency in
a capital case could cost them dearly in the next Republican primary.
If capital-defense lawyers are at a disadvantage
in many states because of a lack of resources available to them
next to what prosecutors have at their disposal, the imbalance
is particularly striking in Texas, experts say. Robert 0. Dawson,
a professor of criminal law at the University of Texas School
of Law, decries the "disparity of resources" in capital
cases Texas-style. "Why is that? Because it's hard to sell
[criminal defense] politically. I think that's a wrongheaded political
judgment," Dawson says.
Among the 38 states that have capital
punishment, Texas is far and away the modern-day leader in implementing
it. Although it has 7.6 percent of the nation's total population,
Texas carried out 35 percent of the nation's executions between
1976 and last month-putting to death 321 of 909 condemned prisoners,
according to the Death Penalty Information Center in Washington.
Virginia was a distant second with 91 executions. And since 2002,
the record is still more lopsided, with Texas responsible for
42 percent of the nation's total. As executions have emptied death-row
prison cells, moreover, Texas juries have quickly filled them
back up. The state's death-row population has held steady (in
the 450 range) since the late 1990s.
As an executioner of juvenile offenders,
Texas also stands out not just in this country but around the
globe. Since 1998, the state has put to death eight offenders
who were under 18 at the time of their crime-nearly half the worldwide
total of 17, according to Amnesty International.
How Texas handles death-penalty cases
has attracted international scrutiny of another kind. In March,
the International Court of Justice (World Court) held that the
United States had violated the rights of Mexican nationals on
death row in nine states, including Texas. Of the 52 inmates now
covered by the opinion, 15 are in Texas prisons. At the time of
the Mexicans' arrests, they were not notified of their right to
meet with their government's consular representatives, as the
Vienna Convention on Consular Relations requires, the court said.
It ordered the United States to remedy the violations of the treaty,
which this country signed in 1963, by undertaking an "effective
review" of the Mexicans' convictions and sentences.
The ruling brought this retort from Governor
Perry's spokesman: "Obviously the governor respects the World
Court's right to have an opinion, but the fact remains [that the
court has] no standing and no jurisdiction in the state of Texas."
There is some logic, however tortured,
to Perry's position. Treaties signed by the United States are
binding on the states under the federal Constitution, but it is
also true that the World Court lacks enforcement power. The United
States ignored the court's order in a consular-notification case
and allowed Arizona to execute two German brothers in 1999.
By openly defying the court's authority,
however, Perry is burnishing his tough-on-crime credentials. That
may pay political dividends in Texas, but it leaves him little
room to maneuver on consular notification. Perry's chest-thumping
contrasts with how Oklahoma Governor Brad Henry, another death-penalty
supporter, dealt with one of the Mexicans covered by the court's
order. In May, Henry commuted the death sentence of Osbaldo Torres
to life without parole.
Perry's death-penalty posture is not at
odds with the Republican-dominated Texas Legislature. Strengthened
by legislative redistricting, the GOP gained a majority of seats
in the House (where Republicans outnumber Democrats 88 to 62)
in 2002 for the first time since Reconstruction and tightened
its grip on the Senate (where the margin favors Republicans 19
to 12). Now, the Republicans have a lock on the legislature and
occupy every statewide office.
In 2003, the last time the legislature
met in a regular biennial session, it rejected a bill to establish
a consular-notification procedure. Proposals to authorize the
governor to impose a moratorium on executions and create a death-penalty
study commission were bottled up in committee.
One death-penalty proponent who has gained
influence due to the rightward tilt is state Representative Terry
Keel. A Republican, ex-sheriff, and former county prosecutor,
Keel became chairman of the Criminal Jurisprudence Committee in
the Texas House of Representatives last year.
A bill that Keel helped quash would have
allowed Texas juries in capital cases to impose, as an alternative
to a death sentence, a penalty of life imprisonment without the
possibility of parole. Only two of the 38 death-penalty states,
Texas and New Mexico, do not offer juries that choice. Keel opposed
the measure on the grounds that "incarcerating the most violent
of criminals for life, with no hope of parole, places corrections
employees in inexcusable danger," as he wrote in a newspaper
column, although the point is widely disputed by corrections experts.
"The system of justice [in Texas] is sound. I believe we
have a high level of integrity," Keel told a newspaper reporter
Where Keel sees sound integrity, other
observers see deep flaws. One who has an up-close view is Charlie
Baird, a former judge on the Texas Court of Criminal Appeals who
now sits as a visiting judge in criminal trials and appeals. According
to Baird, a critical weakness of the Texas judiciary is the lack
of meaningful appellate review. The deliberations of the state
appeals court in capital cases are typically "exceedingly
poor" and "devoid of any kind of critical legal reasoning,"
All judges in Texas are elected. Baird
was one of the last two Democrats to serve on the criminal appellate
court. After eight years on the court, which hears all death-penalty
appeals in Texas, he lost his bid for re-election in 1998. The
other Democrat retired the same year.
When judges run for re-election, the death
penalty is rarely an issue-unless there is a contest about who
is most for it. All nine members of the Texas Court of Criminal
Appeals are conservative Republicans, and eight of them are former
prosecutors with little or no experience as capital defenders,
sources say. The court's rate of affirming death sentences is
"probably the highest" of any appellate court in the
nation, Baird says. "When I was there, [the court] had such
a results-oriented ideology that no matter what issue was raised
on appeal, [the judges] were going to affirm the conviction and
To illustrate what's wrong with the appellate
judiciary in Texas, critics point especially to two well-publicized
cases that eventually reached the U.S. Supreme Court, Banks v.
Dretzke and Miller-El v. Cockrell. In the first, Delma Banks Jr.
was convicted of fatally shooting a 16-year-old boy and stealing
his car near the northeast Texas town of Nash. But it turned out
that prosecutors had withheld evidence that would have allowed
Banks to discredit two key witnesses against him, including the
fact that one of them was a paid police informant. The Texas Court
of Criminal Appeals found that Banks' appeal had come too late.
But in February, the Supreme Court found otherwise-and unanimously
granted Banks the right to appeal.
In the second case, a jury sentenced Thomas
Miller-El to death for the robbery and murder of a Holiday Inn
employee. The trial of Miller-El, an African American, was held
in a Dallas County court in 1986. Miller El's lawyer objected
that the prosecutors had used racially discriminatory tactics
to select the jury, which the lawyer said resulted in 10 of the
ii African Americans eligible to serve on the jury being excluded.
The Texas appellate court rebuffed Miller-El's claim. Last year,
by an 8-to-1 vote, the Supreme Court sided with the Texas defendant,
finding that Miller-El had been denied the right to a fair trial.
Another weakness of Texas justice is the
quality of capital defense representation. "I think at the
heart of the problem in Texas is that [capital-defense representation]
is underfunded," says Andrea Keilen, deputy director of the
Texas Defender Service, a death-penalty research and consulting
organization that brings appeals on behalf of some of the state's
In Texas, judges appoint lawyers on a
case-by-case basis from a list of "qualified" counsel.
Lawyers' fees vary widely from county to county. The amount provided
to defend indigents in capital cases is typically much lower in
rural areas. In Fort Bend County, for example, the fees lawyers
are paid to try such cases are as low as $200 a day. Investigators
earn a maximum of $600 per case, and the total sum for experts
The maximum available for a habeas-corpus
appeal to the Texas Court of Criminal Appeals is $25,000, which
must pay lawyers, investigators, and experts. A habeas appeal
is time-consuming. It requires the defense team to go beyond the
trial record and seek out any possible factor-such as new evidence
of a convicted offender's innocence or prosecutorial misconduct
during the trial-that might justify further appellate review.
The competent attorneys are not drawn
to the cases because they know they're going to lose money, or
they're going to lose the case because they don't have the money
to do a proper investigation or something else that's necessary
to win the case," says Keilen.
Unlike California and Florida, two other
states where capital trials are common (but executions are not),
Texas has no statewide public-defender system. There are public-defender
offices in Dallas, El Paso, and Wichita Falls, but they handle
only a fraction of the death-penalty cases even in their own cities.
The lack of a significant public-defender system puts capital
defenders-many of whom are solo practitioners-at a disadvantage
against the organized corps of death-penalty specialists that
are common in prosecutors' offices.
Many lawyers appointed to represent death-row
inmates in habeas petitions to the Texas Court of Criminal Appeals
are "unqualified, irresponsible or overburdened and do little
if any meaningful work for the client," a study by the Texas
Defender Service concluded two years ago. One lawyer approved
by the court as "qualified," for example, had been disciplined
for dereliction of duty to his client. Five qualified lawyers
proved ineligible because they already held jobs that created
potential conflicts of interest. One lawyer named as qualified
Although the Joe Lee Guy case was not
singled out in the report, its particulars echo these findings.
Besides having an ill-trained and self-serving investigator, Guy
had the misfortune of being assigned a lawyer, Richard Wardroup,
whose record at the State Bar of Texas would show numerous
reprimands and suspensions between 1985
and 2000, including sanctions for misrepresenting to a client
that he had filed a suit, missing deadlines to seek a new trial
and to appeal, failing to act competently as a lawyer, and otherwise
neglecting his clients.
What's more, Wardroup's drug and alcohol
use was "pervasive" during the period that he was Guy's
lawyer, and he "did approximately three to four lines of
cocaine" while driving to Guy's trial one morning, says a
sworn affidavit of the lawyer's former secretary, Regina Young.
Wardroup was appointed as Guy's appellate
lawyer but was suspended from practice while the appeal was pending.
The appellate brief filed by a substitute lawyer also "did
not address [investigator] SoRelle's actions or his relationship
with Mrs. Howell," according to Guy's clemency petition.
SoRelle's bizarre role as Guy's investigator
did not come to light until pro bono lawyers from Minneapolis
tackled the case in early 2000 and appealed to a federal court.
Guy's execution, which Texas had scheduled for June 28 of that
year, was stayed by a federal judge just 15 days earlier. The
possibility remains that the federal courts, if not Governor Perry,
will rectify the injustices in Guy's case. Whether Texas will
do the same in the case of its death-penalty system is another
JOSEPH ROSENBLOOM is a Prospect senior
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