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Published on Monday, October 2, 2000 in the New York Times
The Death Factory
by Bob Herbert
 
By the end of the year Texas will likely have set a record for executing people. The number of inmates marched into the death chamber in Texas this year is expected to reach 40 by New Year's Eve. That would be the highest number of prisoners put to death by one state since officials began compiling death penalty statistics from across the country some 70 years ago.

The current record is also held by Texas, which executed 37 people in 1997. Since the Supreme Court lifted the ban on capital punishment in 1982, Texas has executed 231 inmates. No other state has come close to that figure.

And few, if any, states could match the consistently unjust and unquestionably inhumane manner in which Texas sends its prisoners to their doom. Peruse the death penalty cases in Texas and you will find repeated instances of hapless prisoners condemned to death at the hands of overzealous prosecutors, biased and incompetent judges, and defense lawyers who slept through the trials, who were addicted to alcohol or drugs, who knew nothing about trying capital cases and who did virtually nothing on behalf of their clients.

The death penalty, as applied in Texas, is often little more than a legal lynching.

Robert McGlasson is a competent attorney who is handling the appeal of a condemned prisoner named Calvin Burdine. The court-appointed lawyer who represented Mr. Burdine at his trial was Joe Frank Cannon. Mr. Cannon, who is now deceased, slept through significant portions of the trial.

That might have been a problem elsewhere but not in Texas. Despite the sleeping attorney, the Texas Court of Criminal Appeals upheld the conviction and the death sentence. A saner perspective came from a federal judge who reviewed the case and concluded that "sleeping counsel is equivalent to no counsel at all."

This did not sit well with Texas officials and they are appealing the federal ruling.

Mr. McGlasson told me last week that when he asked Mr. Cannon, the sleepy trial lawyer, for his file on the case, Mr. Cannon turned over a mere five pages of handwritten notes. The notes contained a total of 269 words. That meager collection of words about one-third the length of this column constituted the entire trial file for a death penalty case.

The defendant in this case, Mr. Burdine, is gay. Perhaps Mr. Cannon was asleep when the prosecutor, urging the jury to condemn Mr. Burdine to death, argued that "sending a homosexual to the penitentiary certainly isn't a very bad punishment for a homosexual." In any event, Mr. Cannon didn't object to that line of reasoning.

But he was most certainly awake when, at a post-trial evidentiary hearing, he used derogatory terms to refer to his client and other homosexual men, the mildest of which were "queers" and "fairies."

This is what passes for justice in Texas.

In an article in the Texas Law Review, Stephen Bright, director of the Southern Center for Human Rights in Atlanta, said, "The Texas judiciary has responded to the clamor for executions by processing capital cases in assembly-line fashion with little or no regard for the fairness or integrity of the process."

But Gov. George W. Bush, on whose watch 144 prisoners have been executed, has insisted that every person put to death in Texas had "full access to the courts" and "full access to a fair trial."

Not only is that not true, it is often impossible to tell from the hideously unfair ways in which accused prisoners in Texas are prosecuted, convicted and executed whether they were in fact guilty or innocent.

Governor Bush may well believe that everybody executed in Texas was guilty, but he has only faith not the facts to guide him.

Much of the process is a crapshoot. Mr. Bright cited a case in which "a Texas lawyer, later suspended from practice, presented no evidence about his client at the penalty phase of the trial and then made no closing argument, instead saying: "You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say."

As the body count continues to mount, the death penalty system in Texas reveals itself ever more clearly as a cruel caricature, a mockery of the very idea of fairness and due process. It's not a quest for justice. It's an exercise in evil.

Copyright 2000 The New York Times Company

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