If Gary Graham, the person executed in TX was innocent of murder after all...

[capacitor]

would it affect your vote in the presidential election one way or another? I hope that he was innocent, so Bush will be dogged with it for the rest of his career.

[SPOOFE]

Bush invented our criminal justice system? Bush was the prosecuting and defense attorny? Bush was judge, jury, and executioner?

Bush's responsibility in this matter is minimal. The man was found guilty of murder in a court of law. What reason would Bush have had to think that the court was wrong? Because Gary "proclaimed his innocence up until his death"? Because he converted to Islam in jail and changed his name?

Here's another question to go along with the OP... if Gary Graham was guilty of murder, would it affect your vote in the presidential election one way or another?

[Homer]

If the news casters were correct for once, by Texas law, in this case, Bush had NO power to intervene.

Besides, if we're debating the whole innocent put to death thing, let's call the ratio 1000:1 guilty to innocent put to death. Let me say right now I will gladly be put to death, completely innocent, to ensure the extermination of 1000 murderers, rapists, and child molesters who would otherwise be released into an unwitting populace. Hell. I'd do it to get rid of even 10 of the worthless bastards.

--Tim

[RTFirefly]

Bush is culpable in three ways that I can think of:

1) He appointed all of the members of the Board of Pardons and Paroles that made the decision on Graham. He's solely responsible for their character as a rubber stamp for approval of executions.

People talk about the extensive appeals process, and allege that it protects against the sort of mistake that may or may not have happened last night. Appeals courts, for the most part, can only question whether judges ruled correctly, given what was before them. The Board of Pardons and Paroles was pretty much the only body with the opportunity to consider evidence that the judge and jury should have seen, but didn't. You can be the judge of how seriously they considered that evidence, and to what extent they essentially said, 'It's too late for us to be questioning the judgment of the trial court.' Because if they don't take a new look at the evidence, and the jury verdict, then there truly was no meaningful appeal for Graham, no true chance to correct the trial record.

2) Bush could have postponed Graham's execution for thirty days. He claims he didn't have that power, because Gov. Richards had already used that authority once in Graham's case. But if he'd issued the order, who was going to refuse him?

3) Bush has stood foursquare behind the sufficiency of the Texas criminal justice system with respect to protecting innocent people from being executed.

He has vetoed legislation (he's not completely powerless as guv) that would have provided protection against one avenue by which Texas capital defendants wind up being represented by inadequate lawyers such as the one who represented Graham. He has used his influence to derail other reforms. He has used his bully pulpit, not to question a system with gaping flaws, but to tell Texas, and now the entire country, that it's as flawless a system as humanly possible.

In this way, he has morally bound himself to this system. He may not have built it from the ground up, but he's its cheerleader, and has done everything in his power to ensure its continuation as is, and to block any attempts at repair.

Two generations ago, we put Albert Speer in Spandau prison for twenty years, for playing a much more passive role than that in the Nazi forced-labor system.

Sure, Bush is culpable here. No contest.

And if the worst the GOP can throw at Gore is the Buddhist temple and 'no controlling legal authority', then it's no contest, IMO, as to which offense is more serious. There's a big difference between flouting our campaign finance laws (a game played to the max by both sides), and treating the death penalty like a triviality.

[David B]

Will it change the way I vote? Nope. There was no way in Hell I'd be voting for Bush to begin with.

Spoofe said:

Bush's responsibility in this matter is minimal.

Baloney, as already explained by RTF, above.

The man was found guilty of murder in a court of law. What reason would Bush have had to think that the court was wrong?

Gosh, what reason? Maybe all of the evidence that has come out since then? Or have you not paid any attention whatsoever to the numerous articles in various papers and magazines that have discussed these in great detail?

[RTFirefly]

A caller on C-Span this morning mentioned that the BPP didn't even meet yesterday; they just faxed or emailed their votes in.

Here, with a man's life in the balance, they don't even get together to consider the evidence, and then discuss and deliberate. As Dylan sang 25 years ago:

"Don't it make you feel shame
to live in a land
where justice is a game?"

[RTFirefly]

And the BPP appointees get paid $80,000 a year for their 'work.' For that salary, the Killer Shrub could have at least hired people who were willing to get together in one place to make a difficult call like this.

$80K annually to send in a thumbs-down by email every once in awhile. Nice work if you can get it - and stomach it.

[Esprix]

SPOOFE wrote:

Bush's responsibility in this matter is minimal.

Perhaps, perhaps not, but that has little to do with the spin doctors and campaign PR; if that man died and he was innocent, Bush will suffer the consequences at the polls.

Homer wrote:

if we're debating the whole innocent put to death thing, let's call the ratio 1000:1 guilty to innocent put to death.

I'd bet the statistics are much lower than that. What was the recent finding - 70% of all death row cases had "serious judicial flaws" in the litigation process? Was it Illinois that recently suspended capital punishment when it found something like 33 of their death row inmates found innocent and/or had their sentences repealed upon appeal and/or re-trial? (I'll quote sources for that when I can find them.) So your "1000:1" ratio is skewed at best.

Let me say right now I will gladly be put to death, completely innocent, to ensure the extermination of 1000 murderers, rapists, and child molesters who would otherwise be released into an unwitting populace. Hell. I'd do it to get rid of even 10 of the worthless bastards.

And that scares the bejeezus out of me, my friend. Although an innocent man rotting in jail for the rest of his life is bad enough, the death penalty has a finality that no one can take back. Putting any innocent man to death is, in my book, a reason to commute all death sentences to life imprisonment on the spot. It serves the same purpose without ever making such a horrible, inconsolable mistake.

Esprix

[Odesio]

would it affect your vote in the presidential election one way or another? I hope that he was innocent, so Bush will be dogged with it for the rest of his career.

Ah, so you hope that an innocent man so that someone you dislike would be affected by it. Great going.

Marc

[Saint Zero]

Bush is culpable in three ways that I can think of:

2) Bush could have postponed Graham's execution for thirty days. He claims he didn't have that power, because Gov. Richards had already used that authority once in Graham's case. But if he'd issued the order, who was going to refuse him?

Nice try, no cigar. If the media could be bothered to report all the facts of a story, (like I read one place, working to find the site), he'd already recieved a 30-day reprieve from Gov Ann Richards in 1993. Under Law, he could only recieve one, therefor Bush couldn't have done it.

http://abcnews.go.com/sections/us/Da...ham000623.html

Hot dang, for once I found it on abcnews.com

Come on, his case has been reviews by around 30+ judges! you don't seriously suppose _ALL_ of them are out to insure death takes place no matter what?

[Saint Zero]

Course, I'm still waiting to see who'll be the lesser evil Gore and his "I can even raise campaign contributions from Buddists!" or Bush and "Microsoft is just misunderstood."

Now, back something I didn't mention in my previous post. Bush can't issue another 30-day pass. It's against the law over there. Who'd call him on it? Everyone who defends the DP and the constution, probably.

Could he have just flat out commuted his sentance? Sure. Did Gary G deserve it? Not from what I've read. He's quoted as saying "Next time, I won't leave any witnesses."(CNN, I think, in a hurry right now) and has been generally as unrepentant as one can get. I'd think that if he really did want to live, he would have changed his attitude a little and at least looked like someone who deserved a chance to live.

[Jodi]

RTF says:

(1) He appointed all of the members of the Board of Pardons and Paroles that made the decision on Graham. He's solely responsible for their character as a rubber stamp for approval of executions.

I think this is overbroad. It does not surprise me that Bush would appoint conservative, generally pro-death penalty people when he has discretion to do so; heck, he's conservate and pro-death penalty. He obviously wasn't going to appoint a bunch of bleeding-heart liberals. And we have to remember that this is Texas, where a lot of people are very conservative and very pro-death penalty. That does not mean that Bush is personally responsible for the decisions made by an independent board, nor does it mean the board is not thinking and acting independently -- ie, that it is a mere "rubber stamp." Bush is no more "culpable" than the trial judge, the jurors, and every single appellate judge -- but then, they're not running for president, either.

People talk about the extensive appeals process, and allege that it protects against the sort of mistake that may or may not have happened last night. Appeals courts, for the most part, can only question whether judges ruled correctly, given what was before them.

This is mostly right but not entirely right. An appellate court can always address whether or not evidence that was offered and rejected ought to have been allowed in -- in other words, whether the judge erred in refusing to admit it. They can't evaluate the weight or sufficiency of that factual evidence, but they can throw out the conviction and order a retrial.

The appellate courts in this case found that the trial judge did not err in barring the testimony of the two other alleged eye-witnesses, for example, because they were found to be inherently unreliable. This case really doesn't turn on the existence of "new" evidence, but rather a differet spin put on the evidence that always existed -- the court should have done this, the court should have found that. But it is not the position of the appellate court to say the trial court should have gone left when it went right, if either left or right were reasonable options available at the time. In other words, an appeal is not a re-trial.

The Board of Pardons and Paroles was pretty much the only body with the opportunity to consider evidence that the judge and jury should have seen, but didn't.

This, of course, contains the value judgment that certain evidence existed that the judge and jury "should have seen, but didn't." The 33 judges who ultimately reviewed the case disagreed that any evidence existed that "should have been seen, but wasn't." A finding that such evidence existed would of course have demanded a retrial. It wasn't the function of the Board of Pardons to provide that retrial when the appeallate courts declined to grant it.

You can be the judge of how seriously they considered that evidence, and to what extent they essentially said, 'It's too late for us to be questioning the judgment of the trial court.'

Attempting to leave aside the high emotions of this particular case, I will only point out that, in general, refraining from questioning the judgment of the trial court is a perfectly legitimate thing for a board of pardons to do. That's the function of the appellate court, not the board. And, again, it is not their function to essentially re-try the defendent, especially after an appellate court has found that the defendent is not legally entitled to an actual retrial.

Because if they don't take a new look at the evidence, and the jury verdict, then there truly was no meaningful appeal for Graham, no true chance to correct the trial record.

Again, this is a value judgment. You are determining that the appeals procedures Graham went through were not "meaningful appeals" because you disagree with them. The fact is that he had multiple appeals, over, what?, twenty years? and his conviction was always upheld, as was the judgment against him.

2) Bush could have postponed Graham's execution for thirty days. He claims he didn't have that power, because Gov. Richards had already used that authority once in Graham's case. But if he'd issued the order, who was going to refuse him?

Yeah, this was weak. The Texas Constitution provides that THE governor may issue ONE postponement. Bush interpreted this as one postponement per inmate, when he could as easily have interpreted as one postponement per governor, leaving him with the authority to grant one because the other one was granted by Ann Richards. The provision is very vague and can be read either way -- which is why Bush backed away from relying on it this morning.

3) Bush has stood foursquare behind the sufficiency of the Texas criminal justice system with respect to protecting innocent people from being executed.

I don't see how this makes him "responsible" to some degree he otherwise would not be. Again, you are assuming Graham was innocent of the murder, and it is by no means clear to me that he was. Without that assumption -- which I'm not willing to grant you -- you can't cite this as an example where a system under which innocent people are not executed has "failed."

Please notice that I'm not saying the right thing was done in this case; just that I'm not persuaded the wrong thing was done. I don't know enough about the case to make that determination.

[Unauthorized Cinnamon]

This is an interesting subject for me, as I have recently had some changes in opinion on this subject in general.

I always have and always will believe that a person who murders someone in cold blood deserves to die. It is not inherently immoral for the government to take a life, I don't give a rat's ass about general deterrence - specific deterrence is just fine, thanks, and I believe that we can execute someone without being cruel and unusual.

Since hearing the appalling information coming out thanks to the Innocence Project, I have decided that we cannot be certain enough of someone's guilt to put him to death.

Let me say right now I will gladly be put to death, completely innocent, to ensure the extermination of 1000 murderers, rapists, and child molesters who would otherwise be released into an unwitting populace.

I admire the consistency of your position. However, it is not necessary that these crumbs be "released into an unwitting populace." I support life sentences without possibility of parole, and I would rather that 1,000 guilty murdering pigs lived out their miserable lives behind bars to avoid the unjust extermination of one innocent person.

[mipsman]

My favorite quote on the execution was by a DJ in Dallas that Graham made his gurney, now he has to lie in it.

[HomeSlice]

I am glad this man was put to death even if he didnt commit that one murder. This was no upstanding citzen. He was on a freakin crime spree when they arrested him for murder, and lets not forget that he even bragged about killing another person.

BTW, there was nothing Bush could've done, and I'm glad.

[sailor]

capacitor wrote:
I hope that he was innocent, so Bush will be dogged with it for the rest of his career.

So, if I understand correctly, you are opposed to the death penalty and you would rather see an innocent man executed if it damages a politician you do not like rather than a guilty man if it doesn't?

Man, that says it all about you and your morals and ethics and priorities. I have nothing else to add.

[SPOOFE]

David B...

Gosh, what reason? Maybe all of the evidence that has come out since then? Or have you not paid any attention whatsoever to the numerous articles in various papers and magazines that have discussed these in great detail?

Yes, I have paid attention. Are you referring to the plethora of eyewitnesses that claim that Graham wasn't the killer? If YOU had paid attention, you'd know that they all were unable to stick to their stories. Based on the knowledge that their stories changed (like Graham's alibi witnesses... he claimed to have been alone with his girlfriend, who's face he couldn't remember, nor her address or phone number... and then he had four other people claim that he was with them, as well), I don't think that their testimony qualifies as "evidence". Seeing as how Bush had no reason to believe that this man wasn't guilty, why should he have any responsibility in his death?

Esprix...

Perhaps, perhaps not, but that has little to do with the spin doctors and campaign PR; if that man died and he was innocent, Bush will suffer the consequences at the polls.

I agree, Bush WILL suffer the consequences, even if there is no evidence (as there is now) to show that Graham was innocent. Anti-Bush people wouldn't care about the facts, they'd only care if something will bring Bush down in the polls. Unfortunately, Bush will be made into the whipping boy in this case... as shown above, there was nothing he could do, nor was there any reasonable doubt as to Graham's guilt.

It's a sad day when we begin wrongfully blaming leaders for supposed "mistakes" that A) aren't mistakes and B) wouldn't have been their mistake.

[mipsman]

Capacitor, Sailor nailed you pretty good. Do you have a rebuttal or clarification of your original statement?

[Micro Furry]

Mipsman: I don't believe Sailor nailed Capacitor at all. Cap, correct me if I'm wrong, but what I believe he said (and what I agree with) is that since it's already done with, and the guy has been executed as I understand, he hopes that it comes out that the guy was in fact innocent of the crime for which he was sentenced to death, thus instantly killing Bush's claim of the infallibility of the Texas death penalty system.

I am against the death penalty because the system for capital justice in this country is so broken it's pathetic. Low-paid public defenders regularly sleep through the trials and sentencing deliberations of their appointed clients who can't afford a private lawyer, and sometimes even show up in court drunk. But even this is nothing compared with the fact that in only two states, New York being one of them, can someone on death row or in prison get a DNA test in an attempt to clear themself! Sure, you can ask in other states, but in only two are they actually required to do it for you, rather than blowing it off. In Texas, requests for DNA profiling are regularly denied without comment.

Moreover, I believe so-called "eyewitness testimony" should be disallowed in court, because of the appalling incidence rate of it being wrong. Women even misidentify their rapists, the most up-close-and-personal sort of assault there is, as in one case where the woman specifically concentrated on the attacker's face to try to memorize it, and her testimony sent a guy to jail for 12 years, but DNA later proved him completely innocent. But that's a case for another argument, perhaps.

[jrepka]

Don't know if it will cost him the election, but his unwavering "faith that all persons executed during my administration were guilty of the crimes for which they were convicted" is going to cost him votes. The "access to the courts" argument is scary in a system where the poor and indigent don't have access to competent representation. Once you've been wrongly convicted it's a lot harder to prove your innocence, especially in a case where there's no clear-cut exculpatory evidence.

It's clear that if Bush had been governor when Randall Dale Adams was going through the system, there would definitely have been one innocent person executed in TX.

A little thought experiment: you are charged with murder (doesn't matter, for the purposes of this model, whether or not you are guilty); how many people feel would accept a court-appointed lawyer (a paid public defender, like in CA, or some randomly chosen bozo who happens to be hanging out in the room, like in TX), rather than OJ's defense team? If you think it doesn't make a difference, you're deluded.

[capacitor]

It was too late; what is done is done. No one I believe should be put to death because the attorney was so incompentent that an appeal is fruitless, as was this case. I do not advocate killing innocent people anyway. The original take is slightly spiteful, yes, but I just can't stand the cavalier way in which Bush is handling the death penalty. There was one case in Texas in which a man was executed for kidnapping and murder, although he was not the one who pulled the trigger; her sister did. The sister plea-bargained to ten years, though the prosecutor later determined that she was the mastermind as well as the killer. The prosecutor in the case want the man re-sentenced, but the wheels of justice would not stop.

[SPOOFE]

Micro Furry...

Low-paid public defenders regularly sleep through the trials and sentencing deliberations of their appointed clients who can't afford a private lawyer, and sometimes even show up in court drunk

Strange how I've never heard of this happening, outside of TV and movies...

Moreover, I believe so-called "eyewitness testimony" should be disallowed in court, because of the appalling incidence rate of it being wrong.

And this "appalling incidence rate" would be... what? 20%? 10%? 5%? One-tenth of 1%?

because the system for capital justice in this country is so broken it's pathetic

What do you base that on? The fact that you, personally, don't like capital punishment?

in only two states, New York being one of them, can someone on death row or in prison get a DNA test in an attempt to clear themself!

Contrary to popular belief, DNA is not the Holy Grail of evidence. It's still in its rudimentary stages; many courts have declined using it as a mandatory form of evidence because those touting its virtues have been unable to show a consistent level of infallibility. Wait a few years, my friend, for the technology to be perfected. Think I'm kidding? During the infamous OJ trial, the prosecution had a hard time getting permission to introduce DNA evidence at all. Now, it's almost commonplace (although not standard procedure).

Capacitator...

I just can't stand the cavalier way in which Bush is handling the death penalty.

It doesn't seem very "cavalier" to me, but maybe that's just because I'm not against the death penalty. Could Bush's "handling" of the subject be explained by the notion that, maybe, he might be right? Gasp, what a concept!

Now, as for Jrepka's comments...

how many people feel would accept a court-appointed lawyer (snip) rather than OJ's defense team?

Well, I wouldn't want OJ's defense team (I think they're annoying), but I agree with you. However, that model doesn't completely apply to Gary Graham. He had the backing of millionaires behind him, hundreds if not thousands of people willing to put up money to prove that he's innocent. Could it be possible that maybe the man WAS a murderer, after all? With 30-some judges having reviewed the case in the past 20 years, with the evidence showing him to be coldblooded (he even admitted to it), with all the witnesses in his favor turning out to be fraudulent, you can STILL have "reasonable doubt" as to this man's guilt?

[jrepka]

Well, I wouldn't want OJ's defense team (I think they're annoying), but I agree with you. However, that model doesn't completely apply to Gary Graham. He had the backing of millionaires behind him, hundreds if not thousands of people willing to put up money to prove that he's innocent. Could it be possible that maybe the man WAS a murderer, after all? With 30-some judges having reviewed the case in the past 20 years, with the evidence showing him to be coldblooded (he even admitted to it), with all the witnesses in his favor turning out to be fraudulent, you can STILL have "reasonable doubt" as to this man's guilt?

1. As I said above, once you get past the original trial, all burden of proof shifts to the defendant (I don't disagree with this, but it means that if your defense was incompetent in the original trial it becomes almost impossible to prove innocence without overwhelming evidence). In the appeals process it certainly helps to suddenly have lots of pro-bono support, but the deck is now stacked. If the system is to be fair, it is of utmost importance that all defendents have access to competent council. The standard should be "would I accept this bozo as my defense lawyer?"

2. Graham was executed for shooting a person (don't keep telling me what a scum he is, that's not relevant -- so's Dick Armey). The gun he had when he was picked up was not the murder weapon. The witness who ID'ed him in court originally couldn't pick him out of a photo line-up (even though she described him as clean-shaven and his picture was the only one without facial hair), but then picked him out of a live line up when he was the only person in both line-ups.

3. As to the (un)reliability of the exculpatory witnesses, their reliability is to be determined by the jurors, not by TV declarations by the prosecutor. They weren't called by his appointed lawyer (would you accept this man to defend you?), and were never heard by any court. Two people, not acquaintances of Graham, saw the shooter in the parking lot, and said that he was shorter and heavier than Graham.

4. Eyewitnesses are not notoriously unreliable, but they've been shown to be mistaken a lot -- Randall Dale Adams was ID'ed by two witnesses -- and studies show that jurors give eyewitnesses much more credibility than they deserve. We're dealing here with personal recollections, which are easily manipulated by authorities and by wishful thinking.

You look in Websters under "Reasonable Doubt," you should be referred to the Graham case...

[Odesio]

It was too late; what is done is done. No one I believe should be put to death because the attorney was so incompentent that an appeal is fruitless, as was this case. I do not advocate killing innocent people anyway. The original take is slightly spiteful, yes, but I just can't stand the cavalier way in which Bush is handling the death penalty.

How should Bush act? Ann Richards, who was our democratic governor, had pretty similiar attitudes towards the death penalty.

Marc

[capacitor]

Yes, Ann Richards more or less did, yet Bush defeated her, for the most part, by saying that he will kill more people than she did. This ghoulish promise was kept while he was in office.

[orestes543]

Besides, if we're debating the whole innocent put to death thing, let's call the ratio 1000:1 guilty to innocent put to death. Let me say right now I will gladly be put to death, completely innocent, to ensure the extermination of 1000 murderers, rapists, and child molesters who would otherwise be released into an unwitting populace. Hell. I'd do it to get rid of even 10 of the worthless bastards.

--Tim

Thank you for that. My feelings exactly.

[jrepka]

...if we're debating the whole innocent put to death thing, let's call the ratio 1000:1 guilty to innocent put to death. Let me say right now I will gladly be put to death, completely innocent, to ensure the extermination of 1000 murderers, rapists, and child molesters who would otherwise be released into an unwitting populace.

--Homer

Thank you for that. My feelings exactly.

--Orestes543

OK, this'll simplify my life a lot. Every innocent person out there who is willing to be put to death, report to San Quentin, or Angola, or your closest death chamber. Hey, you're just sitting there! What's the matter, you don't think your death will help? How about your brother's, or your son's, or your best friend's life?

The study done showed that 68% of death penalty cases had serious flaws. Not that that many people were innocent, but some were. The Illinois governor imposed the death penalty moratorium when the number of innocent people found on death row exceeded the number of people they had put to death. Remember, every innocent person who doesn't get a proper defense or a fair trial and is therefore convicted, is one more guilty person who won't go to trial.

But if you believe that execution of the innocent will help make your world marginally safer, bring your girlfriend/wife/father/mother/brother/ or yourself in tomorrow for your lethal injection...

[Odesio]

Yes, Ann Richards more or less did, yet Bush defeated her, for the most part, by saying that he will kill more people than she did. This ghoulish promise was kept while he was in office.

Oh well. I don't seem to recall executions being a huge part of the race between Bush and Richards. But then I wasn't all that interested in politics back then.

Marc

[capacitor]

Bush successfully portrayed Ann Richards as a bleeding-heart liberal when it comes to crime, although her positions and actions towards criminals makes even Rudy Guiliani look as if he was on the criminals' side.

[Odesio]

Bush successfully portrayed Ann Richards as a bleeding-heart liberal when it comes to crime, although her positions and actions towards criminals makes even Rudy Guiliani look as if he was on the criminals' side.

If I recall correctly we had a big problem with certain violent offenders being paroled early. I do believe that was one focus of the campaign but I don't think the death penalty in specific came up. Richards was a supporter of the DP and wasn't to fond of issuing stays of executions herself. That particular area wouldn't have been a great place for Bush to attack her administration.

Marc

[Typo Negative]

Micro Furry...

Strange how I've never heard of this happening, outside of TV and movies...


[

Then look here! http://www.observer.co.uk/international/story/0,6903,330694,00.html

As I have said before, I'm anti-death penalty. Not on moral grounds, but practical grounds. I do not trust our government to get things right. In another thread, I posted a link to a story of a man convicted of sodomizing and murdering his six year old stepchild. In this mans re-trial, 5, count 'em, 5 pathologists testified the girl was not murdered and that there was no evidence of sodomy. Granted, this is an extreme example, but one that I cannot ignore.

That said, the execution in question is not going to hurt Bush in any way. This guy was a scumbag of the first order and a group that wanted to end the DP is not going to hitch it's wagons to this guy.

[RTFirefly]

jodih:

1) I certainly didn't expect Bush to appoint a bunch of bleeding-heart liberals to the BPP. But due to Bush's fundamental nature, I would also not expect him to appoint thinking, questioning conservatives, either, because Bush doesn't in the least appear to be a thinking, questioning person. It is in this latter respect that I hold him responsible for the nature of the BPP.

1A) I bow to your professional expertise with respect to the role of appellate courts; thanks for setting me straight there.

Still, that raises other questions (in my mind, at least) about the nature of the game. The appeals court doesn't re-try the case, which was part of the point I was making, and if a trial judge had to choose between two reasonable alternatives, the appeals court isn't going to undo his choice, no matter which way the judge decided; the appeals court needs to find legal error in order to reverse - do I have this right?

So in the case of Gary Graham, the judge could have reasonably made the call either way: allow the jury to hear the other witnesses, or not. He chose not; it's not reversible error. But some jurors say that if they'd heard that testimony, they wouldn't have voted to convict. Seems like an awfully thin reed to bear the weight of an execution.

I will only point out that, in general, refraining from questioning the judgment of the trial court is a perfectly legitimate thing for a board of pardons to do. That's the function of the appellate court, not the board.

1b) But you've just said that the appellate court is restricted in the manner in which it can question the trial court's judgment. To the extent that it's not the function of the appellate court to do so, it seems that, in a DP case, someone needs to provide a review, simply due to the high stakes involved. If not the BPP, then whom?

2) Thing was, Shrub could have read the provision to mean 'one 30-day postponement per governor', and by the time the legal dust settled, thirty days would have passed. His choice, his culpability.

Again, you are assuming Graham was innocent of the murder, and it is by no means clear to me that he was.

3) I don't think I'm assuming anything. It's clear, regardless of the accuracy of the verdict in the Graham case, that the Texas system has, not cracks, but chasms through which an innocent person might fall to his/her execution. Bush has overlooked the chasms, and informed the world that the ground is level. If Graham is innocent of murder, that defense, given Bush's position (and actions to support the system from that position) count as moral culpability to me.

[Jodi]

RTFIREFLY says:

I certainly didn't expect Bush to appoint a bunch of bleeding-heart liberals to the BPP. But due to Bush's fundamental nature, I would also not expect him to appoint thinking, questioning conservatives, either, because Bush doesn't in the least appear to be a thinking, questioning person. It is in this latter respect that I hold him responsible for the nature of the BPP.

Fair enough, but I would point out that you are assume the BPP is a bunch of sheep (i.e., no "thinking, questioning conservatives") simply because you think he is and he appointed them -- or, in the alternative, because they reached a conclusion you disagree with. I still don't think that necessarily follows. Based on what I know of the case (and I admit my knowledge is sketchy), it seems like a "thinking, questioning conservative," or a panel thereof, might well determine Graham was not entitled to commutation of his sentence.

RTF then asks:

The appeals court doesn't re-try the case, which was part of the point I was making, and if a trial judge had to choose between two reasonable alternatives, the appeals court isn't going to undo his choice, no matter which way the judge decided; the appeals court needs to find legal error in order to reverse - do I have this right?

Yes.

So in the case of Gary Graham, the judge could have reasonably made the call either way: allow the jury to hear the other witnesses, or not. He chose not; it's not reversible error. But some jurors say that if they'd heard that testimony, they wouldn't have voted to convict. Seems like an awfully thin reed to bear the weight of an execution.

First, there's "thin" and then there's "thin." What if the conviction was based on the testimony of a single, absolutely certain, unshakeable eye-witness? Is that a "thin reed"? Not in my mind. The burden of proof for a criminal conviction is "beyond a reasonable doubt." Not "100% certainty." Some people who oppose the death penalty do so because they do not believe people should be executed unless they are absolutely proven to be guilty -- that 100% certainty. That, of course, is nearly impossible to do, and is not the standard our system requires.

Second, the standard, which you yourself touched upon, is reasonableness. An appellant's attorneys may always argue that the judge "abused his discretion" -- i.e., was not reasonable -- in making a particular evidentiary ruling. So let's take two conflicting scenarios: In a murder trial, I, as a defense attorney, produce an alibi witness for the defendant. This witness will say that the defendant was at a particular location at the time the murder was committed. The witness is credible, competent, and has no incentive to lie for the defendant -- for example, a waitress who served the defendant dinner at a particular restaurant and therefore knows when he was there. The judge refuses to allow the witness to testify because he doesn't like me, the defense counsel, or he's just had a bad day, or he's old and out of it, or whatever. I appeal, and the appeallate court may find that the judge "abused his discretion" in omitting that witness, because he didn't have a reasonable, legally-sustainable reason to do so.

Contrast that to a murder trial where the defense counsel wants to introduce a person they claim is an eye-witness. This eye-witness is not particularly credible and is not willing or able to testify to what they affirmatively saw, but only to what they didn't see. In other words, they did not get a good look at the murderer, cannot describe him, but are yet willig to testify that the defendant is not him -- a tough thing to do when you yourself can't say what the murderer looked like. In that situation, a trial judge might well say that the proposed testimony is not probative of anything (i.e., it's too weak to prove the premise for which it is offered) and might confuse or mislead the jury. So he excludes it. The defendant is convicted and appeals; the appellate court reviews and determines that the trial judge did not abuse his discretion in so ruling. That, I believe, was the situation in Graham's case. And, by the way, the fact that jurors would, after the fact, as that they would not vote to convict if they had seen the disputed evidence proves nothing. The judge excluded it precisely because it might have swayed them improperly; they are doing nothing more than acknoledging that, yes, it might have.

1b) But you've just said that the appellate court is restricted in the manner in which it can question the trial court's judgment. To the extent that it's not the function of the appellate court to do so, it seems that, in a DP case, someone needs to provide a review, simply due to the high stakes involved. If not the BPP, then whom?

The appellate court. It is restricted in the manner it may review in that it must stick to the standards of review that apply -- i.e., reviewing conclusions of law to see if they're correct; reviewing findings of fact to see if they are clearly erroneous; reviewing evidentiary determinations to see if the judge abused his or her discretion. That is the context of the review, and it prohibits a review so extensive it amounts to a re-trial at the appellate level. But it is absolutely the function of the appellate court to review every single alleged error in the trial court proceedings. And here they did; but they did not find any error justifying the grant of a new trial.

[Mojo]

"Low-paid public defenders regularly sleep through the trials and sentencing deliberations of their appointed clients who can't afford a private lawyer, and sometimes even show up in court drunk..."

Strange how I've never heard of this happening, outside of TV and movies...

Spoofe, sometimes Texas is stranger than fiction. http://boards.straightdope.com/sdmb/...?threadid=7919

Follow-up not in original story: According to the bartender who worked at a bar across the street from the court, his public defender stopped by daily during the lunch break and got pretty blotto before heading back to court and taking his siesta during testimony.

I'm not against the death penalty in theory but the way that is effected in this country is indefensible. The fact that your chances of being executed are higher because you went with a court-appointed attorney is pathetic. IMO, if you're going to execute someone, a rigorous review of the case should be mandatory. It shouldn't take a bunch of Northwestern University journalism students to save a life because the public defender fucked up.

[Ptahlis]

According to NPR, the Texas BPP handles between 30 and 40 thousand cases per year. If they work 250 days (no vactions or sick days in other words, just a few holidays), eight hours a day, even using the 30,000 case figure, that equates to fifteen cases every day, or 32 minutes a case. Consider that this entails reading the case files, judging it on its merits, and then reaching a conclusion. Also consider that there is no deliberation amongst themselves, no witnesses or advocates to question, not even the defendant. To say that this is not a rubber stamp organization is a bit disingenuous to me.

[oldscratch]

Interesting info regarding GG. I just read that the witness who identified him, after telling police that the suspect was clean-shaven, was shown several photos. GG was the only clean-shaven person among them. Saying that this would not influence them is a pretty far stretch. Are we really ready to kill someone based on that?

And as for spoofe's argument that he hadn't heard of poorly prepared defense lawyers. Just because you are not aware of something doesn't mean it doesn't exist.

[Barney111]

Correct me if I'm wrong, but I believe Graham's case was appealed three times. The court in the first appeal reviewed the merits of the case and deemed a retrial was in order. The second and third appeals were both refused.

Even though the first court recommended a retrial, Mr. Graham never got it.

[SPOOFE]

Barney...

Graham's case was reviewed over THIRTY (30) times. Not ONCE was a retrial deemed necessary.

Oldscratch...

Just because you are not aware of something doesn't mean it doesn't exist.

I agree. However, I was inviting people to show evidence of their claims (lawyers fall asleep, etc.). I'm happy they followed through, since now I can believe them (I hate disbelieving people). You see, I'm the type who doesn't automatically believe a story just because it agrees with my stance on a particular issue, and I don't automatically disbelieve a story just because it disagrees with my stance on a particular issue. It's called "objectivity" (some people should try it more often).

[Barney111]

SPOOFE:
Thanks. That's what I get for buying what I heard on N.P.R.
Now I'm curious where they got that info.

BTW, the 30+ times includes executive (not judicial) reviews.