November 06, 2003
What they don't want you to know
You've probably read about the Texas Clemency Memos, in which we learned about the extremely casual way that Alberto Gonzales advised then-Governor Bush about the death penalty clemency process. What you probably didn't know (I sure didn't) was that one result of this article was to spur Governor Rick Perry and current Attorney General Greg Abbott to loosen the rules that cover the classification of state documents. It's now a lot easier for the government, via a ruling by the AG, to declare things off limits to public inspection. Read all about it here.
Posted by Charles Kuffner on November 06, 2003 to Legal matters
Kuff, I certainly have not done any research into any of the specific cases described in the Atlantic Monthly article you linked. But I've had enough experience during the year I clerked for a Fifth Circuit judge and in pro bono cases since then to be extremely skeptical about this sort of article. The article's author, Alan Berlow, has an obvious agenda and is doing a spin job on the cases he's discussing, but I would bet US Grants to Krispie Kremes that someone from the prosecution side on each of these cases could do just as strong a counter-spin.
In every death penalty case, there's always something that can be pointed to as a basis for clemency: His mother didn't hug him enough, his daddy chased him under the porch, he has a 78 IQ, et cetera. What articles like Berlow's ignore, however, is that all those sad song-and-dance routines can and should be and are in fact played out for the juries who pass sentence. There are plenty of examples of cases in which juries have been swayed by them and have voted against imposing the death penalty as a result. And that's exactly the place and the stage of the proceedings where the sort of facts Berlow is spinning should get traction if they can, that is, when there's someone equally familiar with the case who's presenting the best possible argument for the other side.
My trial practice has been almost entirely on the civil side of the docket, but my respect for the jury system and the adversarial process grow with each passing year. I have enormous skepticism for second-guessers who themselves give jury verdicts about the same degree of respect as they would to the decision of the tic-tac-toe playing pigeons you see at county fairs.
I'm not saying that the system is perfect; mistakes happen sometimes, and that's why there are backup systems. But I am altogether untroubled by the notion that at the clemency stage in the Governor's Mansion, cases may be condensed into a three- to seven-page memo and receive no more than a half-hour consideration. The amount of "due process" that we routinely give to convicted defendants in the US generally and in Texas in particular would flabbergast any 19th Century American lawyer of any political party or persuasion, or indeed, any American lawyer whose experience was limited to the first half of the 20th Century. And lawyers and judges from the rest of the world would look at our system with its bifurcated trials, mandatory appeals through multiple state-court levels, collateral review through the federal courts' habeas corpus channels, and gubernatorial clemency prospects with dumbstruck incomprehension.