In his five years as governor of Texas, the state has executed 131 prisoners -- far more than any other state. Mr. Bush has lately granted a stay of execution for the first time, for a DNA test.

In answer to questions about that record, Governor Bush has repeatedly said that he has no qualms. "I'm confident," he said last February, "that every person that has been put to death in Texas under my watch has been guilty of the crime charged, and has had full access to the courts."

That defense of the record ignores many notorious examples of unfairness in Texas death penalty cases. Lawyers have been under the influence of cocaine during the trial, or been drunk or asleep. One court dismissed a complaint about a lawyer who slept through a trial with the comment that courts are not "obligated to either constantly monitor trial counsel's wakefulness or endeavor to wake counsel should he fall asleep."

This past week The Chicago Tribune published a compelling report on an investigation of all 131 death cases in Governor Bush's time. It made chilling reading.

In one-third of those cases, the report showed, the lawyer who represented the death penalty defendant at trial or on appeal had been or was later disbarred or otherwise sanctioned. In 40 cases the lawyers presented no evidence at all or only one witness at the sentencing phase of the trial.

In 29 cases, the prosecution used testimony from a psychiatrist who -- based on a hypothetical question about the defendant's past -- predicted he would commit future violence. Most of those psychiatrists testified without having examined the defendant: a practice condemned professionally as unethical.

Other witnesses included one who was temporarily released from a psychiatric ward to testify, a pathologist who had admitted faking autopsies and a judge who had been reprimanded for lying about his credentials.

Asked about the Tribune study, Governor Bush said, "We've adequately answered innocence or guilt" in every case. The defendants, he said, "had full access to a fair trial."

There are two ways of understanding that comment. Either Governor Bush was contemptuous of the facts or, on a matter of life and death, he did not care.

At the heart of the problem is the Texas way of providing lawyers for defendants too poor to hire their own, as most are in death cases. There is no state system. Judges assign lawyers -- often lawyers who have contributed to their election campaigns.

"The State of Texas is a national embarrassment in the area of indigent legal services," a committee of the State Bar of Texas says in a report just approved. Again, Governor Bush has shown no concern about this reality. He vetoed a bill, passed by the legislature, that would have let Texas counties set up a limited public defender program for the poor.

Capital punishment, long favored by a majority of Americans, has become a national issue again because of concern about the fairness of its administration. Gov. George Ryan of Illinois, a Republican, imposed a moratorium on executions in that state after 13 men on death row were shown to be innocent. Pat Robertson and other conservatives have called for a national moratorium.

The most complete study ever done of the death penalty process, by Prof. James S. Liebman and others at Columbia University, was published the other day. It showed that two-thirds of death convictions or sentences were upset on appeal for such reasons as incompetent defense lawyers or prosecutors who bent the rules.

To all this George Bush is seemingly indifferent. Or perhaps not entirely. If he were not running for president, it is doubtful that he would just now have granted his first stay of execution. Next week Gary Graham, convicted of murder on the testimony of a single witness who said she saw him at night from 30 to 40 feet away, is due to be executed. Will Governor Bush care?

Copyright 2000 The New York Times Company

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