So I asked myself: self, if George W. Bush is so worried about excessive sentences, how has he acted in previous cases in which a sentence might seem excessive? Herewith, some examples, which I'll put below the fold. Here's the short version: Serving twelve years for a rape that DNA testing shows you didn't commit does not get you a pardon. Being represented by a lawyer who slept through large chunks of the trial does not get you a pardon. Being convicted of murder in proceedings that a court-appointed special master describes as ""a breakdown of the adversarial process" caused by the incompetence of your lawyer does not get you a pardon, even when someone else confesses on tape to the murder you were convicted of. Likewise, when someone else confesses to the murder you were convicted of and you ask for a stay of execution in order to conduct tests that will establish your innocence, no dice. And when you are unquestionably incompetent to assist in your own defense but no one seems to take that fact into account, or tells the jury, that's just too bad. None of these sentences are in any way excessive, as far as George W. Bush is concerned.
But when you are Scooter Libby, convicted of four felony charges, and you face thirty months in jail, that's excessive.
If anyone wants to do their part to reduce sentences that really are excessive, you can make a contribution to the Innocence Project here, and think of Scooter while you give.
(1) Kevin Byrd: convicted of rape, spent twelve years in prison, cleared by DNA, not pardoned.
"In February 1985 an African-American woman was raped in Harris County, Texas. She told investigators that her assailant was a white man. Four months later in an east Houston grocery store the victim spotted Kevin Byrd, a soft-spoken carpenter, and claimed that he had raped her. Oddly, Kevin Byrd is a black man. There was no physical evidence linking him to the crime, no circumstantial evidence, no history of violence or sexual misconduct by Byrd, and no explanation as to how the primary suspect had changed color: Byrd isn’t even light-skinned. Still, he was arrested.
Suddenly, the evidence began to change. The assailant’s pubic hairs, recovered from the victim, were first deemed those of a white man, and then those of a black man after Mr. Byrd’s arrest. The victim had been face down in a dark room throughout the encounter, but was dead certain that Mr. Byrd was the perpetrator. Police officers Donald Duke and K.A. McDonald each wrote reports describing a white assailant; then testified that “white” meant “Latin American” and “light-skinned” black. On the stand a crime lab chemist admitted that the African-American pubic hairs discovered were actually those of the victim, and that the other hairs were probably from a white person. Mr. Byrd’s father and stepmother testified that he was home during the attacks.
After deliberating for two hours, the jury found Mr. Byrd guilty and sentenced him to life in prison. He appealed three times, but all his appeals were turned down. Routinely, Harris County destroys rape kits after all appeals are exhausted, but a clerical error preserved the evidence from Mr. Byrd’s case beyond its expected life span. A friend hired a lawyer and paid his own money for a DNA test for Mr. Byrd; DNA testing did not exist at the time of his original trial. The results came back negative; it was not his semen on the victim’s clothes.
Mr. Byrd was released on bail after 12 years in prison. District Judge Doug Shaver, Sheriff Tommy Thomas and District Attorney John B. Holmes all petitioned Governor George W. Bush to pardon Mr. Byrd. The Texas Board of Pardons and Paroles voted unanimously for a pardon, and it appeared that Mr. Byrd was about to be officially cleared.
But Governor George W. Bush decided not to grant a pardon."
Byrd was eventually freed by a judge.
(2) Carl Johnson, represented by a sleeping lawyer, convicted of murder, executed:
"The first execution of Bush's tenure occurred two weeks after he was sworn in. The 12th execution under his watch took place nine months later, on Sept. 19, 1995. The inmate, Carl Johnson, 40, had been on death row for 16 years since a Houston jury convicted him of fatally shooting a security guard during a food store holdup. Johnson was less than ably represented at his 1979 trial by Calvin Burdine's future lawyer, Joe Cannon. Same story: Cannon slept.
In an interview, David R. Dow, a University of Houston law professor who took over Johnson's appeal in 1988, recalled being aghast as he read the trial transcript.
"It was like there was nobody in the room for Johnson," said Dow, who was thwarted by the Strickland rule in trying to save Johnson's life. He noted that the transcript "goes on for pages and pages, and there's not a whisper from anyone representing him."
Cannon's court-appointed co-counsel in the trial, Philip Scardino, was two years out of law school. "It was frightening, the whole experience," Scardino said recently. "All I could do was nudge him sometimes and try to wake him up."
Like Melamed, Scardino said he eventually asserted himself in his client's trial and did his best, but he was a novice. Cannon, on the other hand, had been practicing law since 1950. Today, two years after his death, he remains a courthouse legend in Harris County, which does not have a public defender office. By Dow's count, a dozen of Cannon's indigent clients went to death row in a span of about 10 years, before judges stopped assigning him to capital cases in the late 1980s."
"David R. Dow, a law professor at the University of Houston (...) was habeas counsel for another of Cannon's clients, Carl Johnson, who was executed in 1995. He says that Cannon, who is now deceased, was "a drunk who showed up tanked" and fell asleep at a number of trials, including Johnson's."
(3) The reference to "Melamed" above concerns the case of George McFarland, whose attorney also slept through his trial. (Melamed was an inexperienced public defender who assisted on the case.) I do not believe Bush would have had to pronounce on this case, but he certainly never lifted a finger either to help McFarland or to do anything about the problems with the Texas judicial system that it revealed, even though the case was quite publicly winding its way through the appellate courts while he was in office. Instead, as governor:
"Bush vetoed a bill that its supporters said would have improved the quality of legal representation for poor defendants. He has defended the prerogative of elected judges to appoint lawyers for indigent capital defendants, despite evidence that some appointments have been tainted by patronage. And in 1995, he signed a law hastening the death penalty appeals process, leaving condemned prisoners even more dependent on court-appointed attorneys."
Back to McFarland (Houston Chronicle, August 14, 1992):
"Seated beside his client -- a convicted capital murderer -- defense attorney John Benn spent much of Thursday afternoon's trial in apparent deep sleep.
His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit upright. Then it happened again. And again. And again.
Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the Nov. 19, 1991, arrest of George McFarland in the robbery-killing of grocer Kenneth Kwan.
When state District Judge Doug Shaver finally called a recess, Benn was asked if he truly had fallen asleep during a capital murder trial.
""It's boring,'' the 72-year-old longtime Houston lawyer explained. (...)
""The Constitution says everyone's entitled to the attorney of their choice, and Mr. Benn was their choice,'' the judge said.
""The Constitution doesn't say the lawyer has to be awake.""
During that case, the defense presented no physical evidence, failed to question any witnesses or visit the crime scene before trial, did not try to impeach the sole eyewitness even though on the day of the crime she "described a black man about 5 feet 7 inches or 5 feet 8 inches tall and weighing about 140 to 150 pounds. McFarland stands more than 6 feet tall, weighs more than 200 pounds and has a much darker complexion" (Houston Chronicle, June 15, 2003), and basically didn't put on much of a defense at all. Too bad, though: despite it all, McFarland's request for a retrial on the grounds that he had not received effective legal representation was denied. (928 S.W.2d 482)
Here's Bush's take on this:
"Several Texas lawyers are notorious for having slept through much of their clients' trials. The Wall Street Journal noted that when Bush was asked in the spring about the sleeping-lawyers problem, he laughed awkwardly before deflecting the question."
(4) Anthony Ray Westley:
"In retrospect, Anthony Ray Westley seemed destined for a life of crime. Raised by his grandmother, he had an IQ of around 70. In his early twenties, he took up with a couple of other men from the Fifth Ward: John Dale Henry, described by friends as "street-smart," and Tyrone Dunbar, who'd served a stint in state prison. Along with Dunbar's wife and children, the three men shared a house in northeast Houston.
On April 13, 1984, Westley and his two friends spent the morning drinking and drugging. They then drove to Eileen's Bait and Tackle, a little shop near the entrance to Lake Houston. Once inside, the three men told the clerk that they were going fishing and wanted night crawlers for bait.
The woman later testified that Westley put a gun to her head and told her that this was a robbery. After he knocked her to the floor behind the counter, she thought she was about to die. But instead of the expected gunshot, she heard the jingling cowbells signaling that someone had walked through the bait shop door.
Chester Frank Hall, the shop's owner, had apparently sensed that something was wrong. He entered with his .22-caliber revolver already drawn. Gunfire erupted.
When it stopped, the clerk looked up from behind the counter and saw Westley and Henry run out the front door, leaving Dunbar lying in a pool of blood. Then the clerk saw Hall. Bleeding from the mouth, he slowly walked toward her, then fell to the floor.
Both Hall and Dunbar died at the scene. Henry had also been shot during the robbery; Westley dropped him off at a hospital, where he was arrested.
The next day, Westley surrendered to detectives from the Harris County Sheriff's Department. He signed a confession saying that he'd participated in the robbery and that he'd carried a .22 during the hold-up.
Later, ballistics experts found that Hall had been killed by a bullet of that caliber. Westley maintained that he'd signed the confession because detectives had told him a bullet from a .38 had killed Hall. The detectives denied that they'd said so.
But other evidence indicated that Westley was telling the truth. Though the bait shop clerk had not been able to see which of the robbers fired the shot that killed Hall, she said in her original statement to the police that Westley had been armed with a large-caliber handgun, something more akin to a .357 or a .38 than a .22. The clerk later repeated that assertion at Henry's trial.
None of that information was known by Ron Mock, the court-appointed lawyer who represented Westley at his murder trial. Though the attorney had requested all exculpatory evidence, the prosecutors did not inform Westley's defense team of the woman's original statement or of her testimony at Henry's trial. Nor had Mock dispatched an observer to sit in on the trial."
Westley was assigned a notoriously slipshod lawyer whom he says only met with him once before his trial on capital charges, and whom he tried to have replaced, but his request was denied. Here's his habeas attorney on the subject:
""I frankly entered the case assuming that he had been given adequate counsel [by Mock]," said Abrams. "I didn't go into thinking that we would find all the problems that we did find. But his trial was so bad, and what we uncovered on Mock is so bad, that I was horrified. I think everybody who has touched this case has been horrified."
In the application for a post-conviction writ of habeas corpus Abrams has filed in federal court, Abrams wrote that, "Westley's appointed trial counsel consisted of a lead lawyer engaged in a high-volume trade of appointed cases who had been cited five times during the period of Westley's representation for failing to meet required court deadlines, had been arrested for contempt of court during the jury selection, maintained no library regarding capital or criminal law legal developments, claimed to keep abreast of current legal developments by reading in the wee hours of the morning, failed to conduct any meaningful investigation into the key factual issues in the case, failed to consult with any expert regarding key issues on which he was uninformed, and was well-known to drink daily after work on an "above-average" basis.
"Against this backdrop," the appeal continues, "it is hardly surprising that the counsel failed to perform their responsibility in capital litigation competently or, as Mr. Mock so colorfully put it when questioned about the number of times that the courts have found his legal representation lacking, "Sh*t happens; it just happens.'""
Another take on Westley's counsel:
"Henry went on trial first. The evidence in Henry's trial, including the clerk's testimony, suggested Henry was the robber with the .22-caliber pistol, with Westley carrying a different gun. The prosecutor told jurors that all signs pointed to Henry as the victim's killer. But Henry was not sentenced to death.
Five months later, at Westley's trial, a different prosecutor gave the case a new slant, tailoring the presentation of evidence, and eliciting testimony from the clerk in a way that pointed to Westley as the robber who fired the fatal shot. Westley was sentenced to death. "I did the best I could for him," Mock recalled in an interview.
Except he did not take the basic step of attending Henry's trial or reading a transcript for a preview of the state's case against Westley. Had he done so, a judicial report later concluded, he would have been well-equipped to undermine the spin that Westley's prosecutor put on the crime. That was just one of many mistakes Mock made in the case, according to a 100-page report by a court-appointed special master, Houston lawyer Brian Wice. Wice reviewed the case in minute detail as part of Westley's appeal. He wrote that Mock's preparation for Westley trial was so lax, and his performance in court so inept, that "a breakdown of the adversarial process" occurred."
So: a recanted confession by a suspect who has consistently maintained that while he was at the scene of the crime, he did not kill anyone, inconsistencies between the confession and the eyewitness testimony, no eyewitness testimony about who actually pulled the trigger, exculpatory evidence withheld from the defense, an incompetent lawyer, and a defendant with an IQ of 70. But wait, it gets even better: in the fulness of time, the actual killer (not Westley) tells his daughter what he did, she records the conversation, and turns the tape over to Westley's lawyer, Barry Abrams, who calls a press conference and asks George Bush to stay the execution. Surely, one might think, under the circumstances a stay might be in order, so that this new evidence could be considered?
"On the gurney, Westley turned to face the one-way mirror on his left, the window behind which Hall's family had gathered. He directed his last words to Hall's widow.
"I didn't shoot your husband," Westley said. "I really didn't. I want you to believe I didn't kill him."
Hall's wife would say later that Westley's last words angered her, and that she felt justice had been served.
But Abrams believed him. Since beginning work on this case, the lawyer had grown convinced that another man shot Hall. And in the previous 16 hours, he believed he had found new evidence to support that theory. Since early morning, the lawyer and his staff had worked feverishly to win Westley a last-minute stay of execution. But only hours before, his request had been turned down by the Texas Court of Criminal Appeals, the federal Fifth Circuit Court of Appeals and the U.S. Supreme Court -- and last by Governor George Bush, who said he denied the stay of execution "reluctantly."
The drugs began flowing through Westley's IV line. The prisoner made one last gasp for air.
Abrams had never felt so powerless."
So much for Anthony Ray Westley.
(5) Jerry Lee Hogue:
"Hogue had been convicted of capital murder in 1979, after the jury deliberated for one hour. The trial was a case of two against one: A man and a woman testified that they saw Hogue tie the hands and feet of twenty-seven-year-old Jayne Markham with wire, stab her and set fire to their house in Arlington, Texas. Hogue was also alleged to have raped Markham. Hogue always maintained that he was innocent and that the man who had testified against him was the actual killer. But the only evidence to back up his version was a small detail: After the fire, the other man, Steve Renick, had burns on his face and Hogue did not. When a fire is ignited with a gasoline can, as in this case, the arsonist often has facial burns.
All at once, in the week preceding Hogue's execution, Renick was indicted on a charge of burning down his own house in Wichita Falls, Texas, and a woman came forward saying Renick had bragged about setting the fire in Arlington. Joseph Stewart, the fire inspector who investigated the new arson, became suspicious when he learned that Renick had been present at the fire in Arlington. Stewart wrote in an affidavit, "I noticed significant similarities between the Arlington, Texas, fire and the Wichita Falls, Texas, arson." Stewart was concerned enough about the possibility that Hogue was innocent that he called Bush's office. "I told them, 'I'm not a defense attorney. I'm a Texas peace officer. This isn't some kind of last-minute finagling around by an attorney to try to get this thing stopped,' " Stewart said later.
On the day before Hogue's scheduled execution, a woman named Gayle Morgan went to the Wichita Falls police and told them that Renick had bragged in front of her about getting away with setting a fire that had caused a woman to die. Morgan said she had only learned on that day, March 10th, 1998, that someone else had been convicted of killing Jayne Markham.
Stewart faxed Morgan's statement to Bush's office. On the basis of the new evidence provided by Stewart and Morgan, Hogue's attorneys asked the CCA for a thirty-day stay to conduct two tests. They wanted permission to test the fingerprints on the gas-can cap that had been found in the fatal fire, and they asked to be allowed to commission a DNA test on a swab taken from the victim so it could be compared with the DNA of Jerry Hogue and Steve Renick. (The arson charge against Renick was later dropped as part of a plea bargain.)"
Bush: sorry. Hogue was executed.
(6) For a change of pace, let's consider someone who actually seems to have done what he was convicted of doing. Meet Terry Washington:
"I thought of a conversation I had had with a mentally retarded and brain-damaged Texas man in May 1997, moments before his execution. I had heard the same childlike focus on the last meal. Because I had represented that man, Terry Washington, in his final appeals, it fell on me to report to him, when he had already been moved to the execution chamber, that neither the United States Supreme Court nor Gov. George W. Bush would stop his execution. I was concerned with how Mr. Washington would take the news. He told me the new guards were real nice and they gave him real good food. Within a half-hour he was dead.
Texas prosecutors and judges had all agreed that my client had the mental functioning of a 7-year old child. The jurors who sentenced him to death, however, never knew about his condition because his appointed trial attorney, who specialized in divorce law, never thought to tell them. But none of this was considered an obstacle to his execution.
The life of Terry Washington was doomed even before he was born. It was fetal alcohol syndrome that probably caused his brain damage, the experts said. He grew up in extreme poverty, one of 11 children living in a two-room shack with no running water or electricity. The children were beaten often, their mother was hospitalized in a mental institution and their father abandoned them for the bars. Mr. Washington's mental retardation was recognized when he entered school, and tests throughout his short life (he died at 33, after 10 years in prison) showed an I.Q. ranging from 58 to 69. His reading never advanced beyond the second-grade level. His communication skills were at the level of a 7- year-old and his social skills at that of a 5-year-old.
The brain damage was separate from the mental retardation and affected Mr. Washington's speech and his ability to understand and order concepts. His ability to put events in sequence was impaired, so that he was unable to recall the happenings in a given day in the order in which they took place. Imagine such a person sitting in a courtroom attempting to follow his own trial. (...)
I spent time with Terry Washington at the Huntsville prison and received many letters written in his childlike scrawl. I learned later that he dictated these letters to a fellow prisoner, then copied them into his own handwriting. He dotted his i's with little hearts. During my last visit, he proudly announced that he could spell my whole name. He made me boxes with Popsicle sticks. He told me that when they let him go he wanted to come to visit in New York City so he could see the tall buildings."
"Terry Washington's lawyer made no attempt to explore his client's mental capabilities or his background. Washington's trial attorney later conceded that he was unaware of a US Supreme Court decision that allows funding for defence attorneys to hire mental health experts for conducting pre-trial examinations. Medical evaluations conducted after Washington's trial concluded that he would have been unable to assist in his own defence and that he was totally unaware of his surroundings during his trial.
The overwhelming evidence that Terry Washington was mentally incompetent to stand trial was presented by new lawyers for the first time during his "habeas corpus" appeal, filed on 14 June 1993. The very next day, the state court held a "hearing" and the following day issued a ruling denying the petition. On that same day, the Texas Court of Criminal Appeals affirmed the conviction and sentence of death.
Terry Washington was executed on 6 May 1997."
As I said above: give, and think of Scooter.