In the January 2011 issue, Texas Monthly endorses a moratorium on executions:

IT’S TIME TO HALT EXECUTIONS IN Texas. The flaws in our death penalty system have become too obvious to ignore any longer. Five times in the past seven years we’ve learned about a person wrongly convicted and taken off death row or a person convicted on bogus forensic science—and executed. It’s clear: Until the day comes when we are able to guarantee that our system will never put innocent men and women to death, we can’t continue to use a form of punishment that is irreversible. It’s time for Texas to put a moratorium on capital punishment.
This is a law-and-order state, and most citizens support executing murderers. But what about executing people who haven’t done anything wrong? The new Legislature that convenes this month is the most conservative in history, with 22 freshman lawmakers, many of them tea party–inspired folks who promised their constituents that they were going to Austin to grapple with the tyranny of the government. On the campaign trail, these men and women railed against the ineptitude and interference of government in general, about the way the state tramples on the lives of its citizens. “Don’t tread on me!” they cried. Fine, then. Let’s look at recent history, which has offered some appalling examples of the state’s treading all over its citizens.
In the summer of 2008, Michael Blair, who was convicted of a Plano murder in 1994 based on hair-comparison analysis, was taken off death row following a series of DNA tests that showed he was not guilty of the crime. One year later, a nationwide controversy erupted over the case of Cameron Todd Willingham, a Corsicana man who was convicted in 1992 and executed twelve years later for setting a fire that killed his children. No fewer than seven subsequent reports revealed that Willingham’s conviction was based on forensic science that amounted to little more than folklore. The case bore a striking similarity to that of Ernest Willis, who spent seventeen years on death row for setting a deadly house fire in Iraan before he was exonerated and set free, in 2004. This past November, the Innocence Project and the Texas Observer announced the results of an investigation into the case of Claude Jones, who was convicted of murdering a liquor store owner in 1989 and executed in 2000. Like Blair, Jones had been convicted largely based on the analysis of hair—in Jones’s case a single strand found at the crime scene. But DNA testing on the hair showed that it wasn’t his at all.
Finally there’s the case of Anthony Graves, which we wrote about in tremendous detail back in October and have followed up on this month (see “Innocence Found”). Graves was convicted of a brutal 1992 murder and sentenced to death. There was no evidence to connect him to the crime, no plausible motive, and the only person who could place him at the scene was the crime’s actual perpetrator, Robert Carter, who was executed in 2000 and who had repeatedly recanted his testimony and proclaimed Graves’s innocence. Nonetheless, Graves spent eighteen years behind bars—twelve of them on death row—and was about to face a retrial next month when Burleson County district attorney Bill Parham abruptly set him free. To summarize: Agents of the state grabbed a completely innocent man out of his mother’s apartment, prosecuted him for capital murder, and kept him locked away for almost two decades.
What can we learn from Graves’s ordeal? Governor Rick Perry, campaigning in Lubbock two days later, was asked by a reporter about the case. “I think we have a justice system that is working, and he’s a good example,” Perry said. “I think our system works well; it goes through many layers of observation and appeal, et cetera. So I think our system is working.”
In fact, the Graves case proves the exact opposite. Graves was failed every step of the way by the system—or, to be more precise, by imperfect humans working in a flawed system. He, like so many other wrongly convicted death row inmates, had inexperienced trial attorneys who were no match for a powerful prosecutor. He was also failed by the judges on the state appellate courts; the Court of Criminal Appeals, the highest of Perry’s fail-safe layers of appeal, turned him down three times.
Mostly, however, Graves was failed by Charles Sebesta, the district attorney in Burleson County at the time of his arrest. State law directs DAs “not to convict, but to see that justice is done.” But early on Sebesta and the investigators working the case developed a theory that Carter could not have committed the crime alone, and they settled on Graves as his accomplice. The night before Carter was set to testify at Graves’s trial, he told the DA, “I did it all myself, Mr. Sebesta.” But nothing was going to keep the DA from winning. After discussing it with Sebesta, Carter testified at trial the next day that Graves was a murderer.
The system that Perry says is working would never have discovered this shocking detail had it not been for an offhand comment that Sebesta made in a Geraldo Rivera documentary in 2000, six years after the DA had sent Graves to death row. On the show, Sebesta let slip that Carter had told him he had acted alone. That comment was evidence of a conversation that Graves’s defense attorneys said Sebesta had never revealed before. Springing into action, Graves’s new appellate lawyers got to work writing a federal appeal, which led a federal court to overturn the murder conviction in 2006 and order the state to retry Graves or set him free. But for Sebesta’s comment, Graves would almost certainly be dead by now. Does it need to be said that a system reliant on Geraldo Rivera is a system that needs work?
“Charles Sebesta handled this case in a way that would best be described as a criminal justice system’s nightmare,” special prosecutor Kelly Siegler told reporters after Graves was released. “It’s a travesty.” But his case is not an aberration. We know of several other Texas death penalty cases where the very qualities we value in our prosecutors—ambition, relentlessness—led them to refuse to be skeptical of shaky witnesses, to refuse to admit error, to push on at all costs. Randall Dale Adams was convicted of killing a Dallas police officer and sent to death row in 1977. He was released in 1989, after his accuser confessed to the crime himself and a higher court stated that the prosecutors had “knowingly used perjured testimony.” Kerry Max Cook was convicted of killing a woman in Tyler in 1977. He was released in 1997 and his conviction reversed; the Court of Criminal Appeals found that the state had hidden critical evidence. And then there’s Ernest Willis, who was pumped so full of antipsychotic medicine during his trial that he appeared to jurors as a blank-eyed maniac—a fact the prosecutor made great use of at trial.
And these are just the cases we know of. Are there other wrongfully imprisoned people sitting on death row right now whose stories will never come out? Before you answer that question, think about what went into saving Graves. Nicole Cásarez, a professor at the University of St. Thomas, in Houston, and a dozen of her students spent thousands of hours poring over the case and interviewing people. Graves also had the benefit of good, experienced lawyers and journalists who worked hard to explain his case. And Graves wasn’t the only one with outside help: Just about every single exoneree who has walked off death row has done so in spite of the system, not because of it. The confession that led to Adams’s release was propelled by a documentary film; Cook has a New Jersey prison ministry to thank for his freedom; Willis was lucky enough to wind up with a New York lawyer whose firm spent more than $5 million on his case. Without these benefits, Graves, Adams, Cook, Willis—all of whom are innocent men—would likely have been put to death. And, needless to say, the vast majority of the men on death row will never be so lucky as to have a high-priced lawyer or a filmmaker or a posse of journalism students working on their behalf.
So what’s to be done? First of all, let’s admit, finally, that we have a problem. Second, we have to halt all executions: We can’t allow a process so flawed to continue doling out the ultimate punishment. Finally, we need to examine the system from top to bottom with a sharp, skeptical eye. Consider forensic science. As late as 2009, investigators from the attorney general’s office were trying to work the Graves case using the services of Keith Pikett, a deputy from Fort Bend County who said his bloodhounds could pick the smells of criminals out of scent lineups. Pikett wore out his welcome with law enforcement after sending at least five people to prison for crimes they didn’t commit. This didn’t happen in the dark ages before DNA. This happened in the past few years.
As the Graves case makes clear, we need to pay attention to the conduct of our district attorneys. They’re usually among the most powerful people in any county, and at present there are hardly any criminal or civil penalties for prosecutors who engage in misconduct. We need to create real incentives for our DAs to seek justice instead of convictions. This won’t be easy. Sebesta still claims he did nothing wrong—as did the men who prosecuted Adams, Cook, and Willis. They were the good guys fighting the good fight, and if sometimes they got zealous, well, who can blame them? They’re only human.
Which brings us to the heart of the problem. Can the criminal justice system, a system conceived and operated by humans, ever be completely free of error? The common theme in the cases of Graves, Willis, Cook, and Adams (and Willingham and Jones) is clear: People make mistakes, and so do the institutions they work for. We know this intuitively. We see it every day, when, say, the postman mistakenly delivers our neighbor’s mail or when officials at a football game screw up a call. We can afford these kinds of mistakes. We walk the letter next door. We scream at the TV. But it’s different when we’re dealing with capital punishment. We can afford the mistaken holding penalty. We can’t afford the mistaken death penalty. It’s time to halt executions in Texas.
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