Massachusetts Citizens Against the Death Penalty

Review by James P. Rooney

EXECUTED ON A TECHNICALITY:
LETHAL INJUSTICE ON AMERICA’S DEATH ROW
by David R. Dow

Now that Governor Mitt Romney has proposed a perfect death penalty for Massachusetts, it is well to review how the perfect death penalty has worked elsewhere. University of Houston law professor David Dow’s book, Executed on a Technicality: Lethal Injustice on America’s Death Row comes along at an opportune moment to give an inside view of how Texas’s version of perfection looks to someone who has spent 17 years appealing Texas death sentences.

Texas has executed 341 people since the Supreme Court reinstated the death penalty in 1976, over 200 more than the next most active death penalty state, Virginia. From the point of view of death penalty opponents, the situation in Texas is the opposite of perfection. Not so to the proponents of the system, most notably President Bush, the former governor of Texas who signed 113 death warrants on his watch. Whenever asked, President Bush will say that all those who were executed were guilty and that they received a fair process.

On its face, the Texas appears to offer numerous protections to ensure that a person charged with a capital crime will be treated fairly. Texas law makes the death penalty applicable to murder only if the state can prove that the murder was particularly horrific or that the murderer would likely kill again. If a jury returns a sentence of death, the case is automatically appealed to the Texas Court of Criminal Appeals. If this court denies the appeal, the condemned has an additional opportunity to file a petition of habeas corpus in state court to raise any claims that the handling of his case violated state or federal constitutional law. At each stage of this process, Texas law gives an indigent defendant the right to a competent attorney. And if the condemned does not prevail in state court, he still has an opportunity to file a habeas corpus petition in federal court.

In Dow’s experience, this is more farce than perfection. The condemned do not stand a chance of prevailing in Texas courts no matter how meritorious their claims. The “competent”lawyers provided for defendants charged with murder often prove hopelessly inept, defense attorneys who sleep through trials being only the most notorious examples. The elected members of the Court of Criminal Appeals gain no points with voters by reversing the results of capital cases. As a result, the court affirms 98% of the death penalty cases it reviews.

Consequently, Dow focuses his efforts on trying to gain relief from the federal courts. The availability of that relief has been severely curtailed, however, by the changes Congress made to the review of federal habeas corpus petitions in a 1996 statute eerily titled the Antiterrorism and Effective Death Penalty Act. Aside from the odd belief that limiting the habeas corpus petition rights of terrorism suspects would be an effective way to fight terrorism, the rest of the statute’s name is truth in advertising. Between 1976 and 1995, federal courts reversed the sentence or conviction of 50 % of death row inmates whose petitions they heard. But Congress, thinking the death penalty cannot be effective if it is not implemented, imposed numerous hypertechnical barriers to prevent federal courts from hearing the merits of death row petitions. The net result has been to reduce to 10% the number of death row petitioners who prevail in federal court. And most cruelly, the barriers are set highest against defendants who failed to obtain a review of their claims on the merits in state court. So the very cases that most need review because no one has looked at them seriously are the ones denied review.

While much emphasis has been placed of late on the possibility of an innocent person ending up on death row, Dow focuses on a more frequent injustice involving the sentencing to death of a person who committed a murder but who is not eligible by law for the death penalty. This is hardly as compelling as the condemnation of a person who committed no crime at all, but, to the extent it happens, it is disturbing evidence that efforts to limit the availability of capital punishment, such as Governor Romney ’s, are bound to fall apart.

Take the case of Johnny Joe Martinez. In July 1993, Martinez stabbed convenience store clerk Clay Peterson to death. Immediately remorseful, he turned himself into the police and confessed. The state sought the death penalty alleging that Martinez was likely to be dangerous in the future. Martinez had never been arrested or convicted before, hence the state lacked the usual proof that a defendant has a propensity toward violence and could be expected to kill again. The only evidence it presented was the store’s videotape of the stabbing. Martinez’s lawyer needed to show that his life was worth saving, but he performed no investigation of the case and put on only the few character witnesses who had approached him. Needless to say, Martinez was condemned to death.

On appeal, the Court of Criminal Appeal affirmed the conviction by a 5-4 vote, with the four dissenting justices objecting that the sentence could not be upheld because the state had presented no evidence of future dangerousness. Martinez obtained a new lawyer to file a state habeas corpus petition, but this second advocate had even less idea what he was doing that his trial lawyer. He filed a 17 line petition that raised arguments that the courts had already rejected. The petition was quickly turned down by the Court of Criminal Appeals, with a dissenting justice recommending that the merits of the petition not be reached because of the obvious incompetence of the lawyer the court had appointed for Martinez. The failure of this lawyer to raise appropriate claims in the state habeas corpus petition meant that the federal district court judge reviewing Martinez’s subsequent federal habeas corpus petition, although he recognized the poor representation Martinez had received, could not reach the merits of Martinez’s claims either. And so in the end, the state of Texas executed Johnny Joe Martinez without ever having proved that he was sufficiently dangerous to be eligible for capital punishment.

Dow blames Martinez’s two incompetent attorneys. But they are not alone. The prosecutor sought the death penalty despite the absence of any evidence that would warrant it. The trial judge allowed the prosecutor to proceed, although the state put on an insufficient case to justify a finding of dangerousness. This lack of evidence was readily noted by the four dissenting justices in the Court of Criminal Appeals, but how did the other five justices miss it? One justice noted the ineptitude of the lawyer representing Martinez in his state habeas corpus petition, but as that justice observed, the problem was not simply with the lawyer, but with the state that saw fit to appoint him.

This is not just all coincidental. The point of the death penalty in Texas is to execute people, and all flaws in the handling of capital defendants’ cases do nothing but aid that goal. Dow’s description of how this affects individual cases is unsettling. Cesar Fierro’s confession was coerced, but he stayed on death row for so long that he was driven insane. Gary Graham’s lawyer failed to have two witnesses to a murder testify that Graham was not the man they saw and failed to have a ballistics test performed that would have proved that Graham’s gun was not the murder weapon, failures that ultimately led to Graham’s execution.

Before he began representing death row inmates, Dow supported the death penalty. Having seen it in practice, he no longer does. While his book will no doubt appeal to those who already oppose capital punishment, it is more important that his message be heard by those who think that the death penalty can be administered justly.

Home | News | Articles | Links | Local Chapters | Membership Info

email:mcadp@earthlink.net | Last update 9/18/08
For comments about this site contact WEBMASTER