L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 241, October 5, 2003

Feast or Famine

Capital Punishment and Texas
by Kathryn A. Graham
kate@kathrynagraham.com

Exclusive to TLE

Interestingly enough, I had never been opposed to capital punishment, or at least, not in theory. Yes, I'm a Libertarian, and most Libertarians I have met are opposed to such taking of life, but I'd always reasoned that the person being executed had most definitely initiated the force by committing a capital crime in the first place. In addition, I felt (and, in some ways, still do feel) that keeping a person in a cage for life was cruel and unusual punishment far beyond execution.

Boy, have I ever received an education! Yep, that's right. This very stubborn and opinionated gal has had her mind changed 180 degrees, and in record time.

You see, I live in Texas.

My partner and I are private investigators, and we have been looking closely at doing some investigative work for prisoners on Death Row in this state, and there are quite a heap of them. No, you don't have to accuse me of altruism. Considerable grant money does exist for this sort of endeavor, and we've never been accused of not going after the dollar. Yes, even the worthless Federal Reserve note has its uses. The real trick is in finding it, which is the very project we have been working on.

Unfortunately — or perhaps fortunately, depending on your point of view — this has led us to look at some of the cases currently on Death Row, just to see what a pair of aging investigators might be able to do for these guys. And, believe me, you don't even have to examine these cases at all closely to feel the hair on the back of your neck heading for the stars! We've all had our heads in the sand in this state, with the media's help, but I can't keep mine there any longer.

Texas is admittedly the worst of the worst, but I'm sure that similar things are happening all around the U.S. — just on the scale of a mouse, or maybe a medium-sized dog, as opposed to an elephant sitting in your teacup. Texas is one of 34 states that allow the death penalty, but this state is responsible for one third of the executions carried out since the 1970s, and in 2002, for half of them. Yes, half of the nation's executions were carried out in Texas during 2002.

It is true that most of these guys are not nice guys. No one is suggesting that the majority of Death Row inmates are saints. Many of them even committed the crimes of which they stand convicted. Remember, though, that in the vast majority of cases where a confession is obtained, a deal is struck with the DA, thereby avoiding the death penalty. The individuals who are actually on Death Row did fight the charges, every one of them, at the risk of their lives. Generally, a guy or a gal never gets arrested for a capital crime unless he or she was emphatically in the wrong place or in the wrong company at the time, true. But, correct me if I'm wrong here, isn't it one of our founding principles that no one is ever punished without careful due process of law? Isn't that even more important in a capital case?

Let's talk about what happens if you are arrested for a capital crime in Texas. First and foremost, you can forget bail. All right, fair enough — I'm not sure that's a bad thing in itself, but there is a lot more. The chances are that you are indigent, and of a minority race (just look at the percentages). An average capital case in Texas costs around $100,000, if you hire a private attorney. Texas allocates only $5,000 for public defenders in capital cases, and because you are "appointed" an attorney, it is frowned upon if you try to defend yourself pro se, despite the fact that even disbarred attorneys are allowed to act as public defenders — including at least one who was serving a probated sentence at the time. Oh, you can demand to represent yourself, but the judge will not be lenient with your ignorance, so the deck is stacked against you from the beginning. Most of these prisoners are of average or slightly less than average intelligence (one or two actually mentally retarded). They are afraid to try and push the issue, and with good reason.

So you sit in jail for months, perhaps years, and the only person who comes to talk to you about your case is the paralegal who works for a very reluctant and possibly incompetent attorney. So whatever evidence you have in your own defense is provided to your attorney second hand, if it even gets there at all. There are far too many instances of police losing evidence, and many of the guys on Death Row as I write this actually had their evidence reviewed by the infamous Zane, who has now been thoroughly discredited for slanting the outcomes in favor of the police. The first time you see your attorney face-to-face is usually in the courtroom on the day of your trial. He is bored and probably not too interested in defending you, when he could be defending this other schmuck who is paying him one hell of a lot more than the state is paying him for you (attorneys do not have a choice — the Bar requires that they take a certain number of public defender cases yearly). And he is not anxious to spend some of his paltry (to him!) defense funds hiring an investigator to get out there and try to find out what really happened — and that really is up to the attorney, not the accused. It literally comes out of the attorney's pocket.

In several thoroughly documented cases in Texas, the attorneys actually slept through their own capital cases. Are these guys freed as a result? No, and some of them are already stone dead, thanks to the Texas fondness for the needle. Certainly, in at least one of the cases we were examining this week, the prisoner was not freed and still faces a short and very unpleasant future. I've seen several appellate rulings that said that nothing important happened during the attorney's "nap." (???!!!) A man's life or death was decided here, but nothing important happened? Clear and public evidence was present to show that the attorney didn't give a tinker's damn whether his client would live or die, but "nothing important" happened? Maybe I'm missing something here, but that is absolutely appalling to me.

A report in the Chicago Sun Tribune in 1999 stated that out of the 131 executions in Texas since Bush became governor in 1995 (at the time of the report), defense attorneys for 40 inmates presented just one witness — or no evidence at all — during the sentencing phase.

That same report in the Chicago Sun Tribune (hardly the National Enquirer!) went on to say, "...Texas under Bush has executed dozens of indigent death-row inmates whose cases 'were compromised by unreliable evidence, disbarred or suspended defense attorneys, meager defense efforts during sentencing and dubious psychiatric testimony.'" The report also found that the Texas Court of Criminal Appeals, the venue of last resort for correcting errors at trial in Texas, has continuously refused to overturn death sentences, even when defendants complained about their attorneys sleeping during trial or when a prosecution witness gave false testimony.

An appeal is automatic in a Texas capital case. It is filed for the prisoner, whether he wants one or not, under the new rules designed to "streamline" the process of giving someone the needle. $25,000 is allotted for the appeal, and typically about $18,000 winds up being spent — and rarely one dime of it on an investigator of any kind. And for most of these guys, a thorough investigation into their case is their one and only remaining hope. Of the 111+ prisoners on Death Row who have been exonerated and freed nationwide, most were due to habeas corpus proceedings brought due to new evidence, but what chance is there of producing new evidence without investigation? A prisoner on Death Row has lost his civil rights — he no longer has presumption of innocence working in his favor. He must actually prove his innocence if he is to go free.

I am no bleeding heart, but none of this sounds good when you are talking about killing someone. When there is an error on a case and the convicted party is in prison, he is generally released (although bureaucratic snafus and a reluctance to cough up compensation can delay that for years), given financial compensation of some kind, and told to go try to recover his life. Not a good trade for years in the slammer, but at least there is some chance of starting over. The trouble with the death penalty is that there is no way to say "Oops." None. It's over.

Governor Dubya executed 152 prisoners while in office as Governor of this state. That's 152 people dead, and we will never know how many were innocent. In an interview with Time Magazine, Dubya was graphically described mocking a terrified woman's last plea for life as she was being executed. It's pretty much an open secret in this state and in Florida that Dubya and Jeb were in some sort of macabre race, trying to "finish" as many executions in their respective states as possible. In Texas, executions are now so regular that they've actually been forced to move the time up to 6:00 PM to make it easier on the prison staff. And in one case that I remember personally from 1999, there was a request filed to perform DNA tests on evidence that were not scientifically possible at the time of the trial, and Dubya moved up the date of execution instead.

This Texecutioner, this former Governor of Texas, is your "righteous man," the man who tells us that "God" told him to invade Iraq. This is the man who is so religious that he can't make a single speech without talking about God. This is the man who tells you almost daily how lucky you are to be "free." Well, I know personally several people who hear directly from God on a regular basis, and they all need medication to hold down a full time job.

This man is your President. Go celebrate your freedom.



Kathryn A. Graham kate@kathrynagraham.com, private investigator www.kathrynagraham.com, aviation consultant, co-owner and co-founder of Safetynet Associates, Texas Director for Armed Females of America, prolific Libertarian columnist and author of Flight From Eden, a science fiction adventure in freedom.


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Flight From Eden by Kathryn A. Graham. In a near-future dystopian United States, a small group finds an unusual way to overcome betrayal, capture, torture and death in order to resist tyranny and free their beloved nation. The sequel, The Liberation, is expected to release in summer of 2004

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