The Unique Brutality of Texas

Why the Lone Star State leads the nation in executions

by Joseph Rosenbloom

The American Prospect magazine, July 2004

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 claims.

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 last summer.

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," Baird says.

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 sentence."

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 death-row inmates.

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 is $750.

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 was dead.

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 question altogether..

JOSEPH ROSENBLOOM is a Prospect senior correspondent.

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