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.
Micro Furry…
Strange how I’ve never heard of this happening, outside of TV and movies…
And this “appalling incidence rate” would be… what? 20%? 10%? 5%? One-tenth of 1%?
What do you base that on? The fact that you, personally, don’t like capital punishment?
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…
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…
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?
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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?”
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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.
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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.
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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…
How should Bush act? Ann Richards, who was our democratic governor, had pretty similiar attitudes towards the death penalty.
Marc
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.
Thank you for that. My feelings exactly. 
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…
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
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
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.
jodih:
- 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.
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?
- 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.
- 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.
RTFIREFLY says:
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:
Yes.
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.
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.
Spoofe, sometimes Texas is stranger than fiction. http://boards.straightdope.com/sdmb/showthread.php?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.
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.
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.
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.
Barney…
Graham’s case was reviewed over THIRTY (30) times. Not ONCE was a retrial deemed necessary.
Oldscratch…
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). 
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.