September 15, 2011
The Death Penalty in Texas and Governor Perry's Restful Nights
Last week, Rob Vischer asked whether we should be concerned that the audience at a presidential debate cheered the death penalty and that Governor Rick Perry said he never struggled or lost any sleep over the possibility that an innocent person might be executed. Others carried forward that discussion (here and here). Perry also insisted that Texas provided a rigorous criminal process to ensure that such a travesty would not occur.
In today's Minneapolis Star-Tribune, two prominent Minnesota lawyers who had worked on post-conviction remedies in a Texas death penalty case begged to differ (here). Tom Johnson (who is a former county attorney for the county in which Minneapolis is located) and Greg Merz told the story of the case in which they worked, in which the prosecution offered either of two friends a pass from the death penalty if he would testify against the other, an offer accepted by the defendant's friend who subsequently recanted (but that didn't matter under Texas procedures).
The defendant's trial lawyer in this capital murder case failed to object to a juror who expressed the opinion that executing a few innocent people to speed up criminal justice might be better for society, failed to cross-examine the primary witness against him, called no witnesses for the defense, failed to adduce any evidence about the defendant's mental disabilities, and made a closing argument in the apparent mistaken understanding that it was the sentencing phase and guilt was already established. Even with mental, cultural, and educational limitations, the defendant could tell his attorney was incompetent and asked the judge repeatedly for a new lawyer, to no avail. The end of the story, of course, given that this happened in Texas, was that he was convicted, sentenced to death, post-conviction remedies were denied, and, under Perry's watch, he was put to death.
As Johnson and Merz conclude:
On nights when the Texas executioner is at work, there is good reason for Perry to go sleepless.
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I think it was another commenter on MOJ who pointed out to me that the governor of Texas (and this was true of George Bush as well), has no authority to stop an execution unless clemency is recommended by the Texas Board of Pardons and Paroles. I don't think the board ever recommended clemency during Bush's time in office, and the one time they did in Perry's time in office, he granted clemency.
The (perhaps unworthy) thought entered my mind that the reason Rick Perry answered the question the way he did was so he would get undeserved "credit" for the executions that he was in fact powerless to stop.
Posted by: David Nickol | Sep 16, 2011 12:10:57 PM