The Houston Chronicle is reporting that Former Texas Governor Mark White who was involved in the executions of 20 people:

says it may be time for Texas to do away with the death penalty.

The death penalty is no longer a deterrent to murder, and long stays for the condemned on death row shows justice is not swift, White said.

More than anything, he said, he has grown concerned that the system is not administered fairly and that there are too many risks of executing innocent people.

White said the state needs to take a serious look at replacing the death penalty with life without parole.

“There is a very strong case to be made for a review of our death penalty statutes and even look at the possibility of having life without parole so we don’t look up one day and determined that we as the state of Texas have executed someone who is in fact innocent,” said White.

Perry controversy

Current Gov. Rick Perry is facing national criticism for not granting a 30-day stay in 2004 to Cameron Todd Willingham after an arson expert raised questions about the house fire that killed his three children.

Perry ignited the controversy recently by replacing members of the Texas Forensics Commission that were looking into the science behind the arson investigation in the Willingham case.

Perry responded by calling Willingham a “monster” and saying he has no doubt of his guilt.

Noting that he does not know all the facts in the Willingham case, White said it shows how forensic science is evolving. White said there also has been at least one case of a death row inmate being cleared by modern DNA testing. That was the case of Michael Blair, a child sex offender who was convicted of killing Ashley Estell after a playground abduction, but exonerated when DNA testing indicated someone else likely was involved.

“That’s two examples of why I think the system is so unreliable it creates an unnecessary possibility that an innocent person would be executed in Texas. And I don’t think anybody in Texas wants that to happen,” White said.

Keller case

The former governor also said he was upset by the incident in 2007 when the Court of Criminal Appeals was closed to an inmate’s efforts to file a last-minute appeal based on a U.S. Supreme Court ruling that came down earlier in the day of his execution. That case has resulted in a State Judicial Conduct Commission investigation of Presiding Judge Sharon Keller.

“That was a horrible procedural error,” White said.

White as attorney general in 1982 represented the state in the first execution after the death penalty was reinstated. As governor, he oversaw 19 executions.

White said during his tenure as governor, then-Attorney General Jim Mattox was in Huntsville and he remained by the telephone in case an execution needed to be halted at the last minute. White said none of the cases he handled involved claims of innocence.

White said he is not critical of Perry’s handling of the Willingham case and would not second guess him.

Tenth Annual March to Abolish the Death Penalty
October 24, 2009 at 2 PM
Texas Capitol South Steps 11th and Congress
Austin, Texas

Speakers and other confirmed attendees at the march will include two innocent, now-exonerated death row prisoners (Shujaa Graham and Curtis McCarty), Jeff Blackburn (Chief Counsel of the Innocence Project of Texas), Eugenia Willingham (mother of Todd Willingham), Jeanette Popp (a mother whose daughter was murdered but who asked the DA not to seek the death penalty), Elizabeth Gilbert (the penpal of Todd Willingham who first pushed his innocence and helped his family find a fire expert to investigate), Walter Reaves (the last attorney for Todd Willingham, who fought for him through the execution and continues to fight to exonerate him), Terri Been whose brother Jeff Wood is on death row convicted under the Law of Parties even though he did not kill anyone, and Anna Terrell the mother of Reginald Blanton who is scheduled for execution in Texas on Oct 27 three days after the march, plus others to be announced.

The march starts at 2 PM on October 24 at the Texas Capitol. We will gather at the Texas Capitol at the gates leading into the Capitol on the sidewalk at 11th Street, march down Congress Avenue to 6th street, then back to the South Steps of the Capitol for a rally to abolish the death penalty.

Sign the petition to Governor Rick Perry and the State of Texas to acknowledge that the fire in the Cameron Todd Willingham case was not arson, therefore no crime was committed and on February 17, 2004, Texas executed an innocent man.

The Chief of Staff of Governor Rick Perry, Ray Sullivan, has a letter-to-the-editor in today’s Longview News-Journal criticizing the paper’s Wednesday editorial in which the paper criticized Perry for refusing to release all the documents in the Todd Willingham case that would show whether and to what extent the Governor considered the information given to them by Willingham’s lawyer on the day of the execution.

Sullivan says the News-Journal is “just plain wrong”, but actually Sullivan is just plain wrong, and he knows he is wrong, so he must be wrong on purpose, which is also called being dishonest. Sullivan says the Governor has “repeatedly made Mr. Hurst’s four-page opinion public”, but Sullivan knows that the criticism of the governor in the editorial is not about Hurst’s letter, but it is that he has not released the memo or memos from Perry’s own staff that were used by the governor in his decision making process regarding whether to stay the Willingham execution and has refused to release any documents that would show whether Hurst’s letter was read personally by Perry himself.

The people of Texas expect the governor to be fully engaged in decisions on the day of an execution in order to prevent innocent people from being executed. They also expect that the Governor will not engage in a campaign to cover up and delay a state-funded report submitted to a public agency, such as the Texas Forensic Science Commission. Sullivan knows that Perry continues to refuse to release all the relevant documents and that is why many people are concluding that Perry is hiding something that would reflect poorly on him.

Sullivan also says in his letter that “we know full well that Texas newspapers oppose the death penalty, even for the most terrible crimes”, which is dishonest too. There are only two major Texas newspapers we know of that have endorsed abolishing the death penalty, so implying that many, most, all or more than two major Texas newspapers oppose the death penalty is exceedingly dishonest.

According to a June 2009 news article in the Statesman, “Sullivan has worked on previous Perry campaigns. He has also been a lobbyist. His clients this year have included Banc Pass Inc., Compass Environmental Inc., Exelon Power Texas, Global Options Inc., HNTB Corp., Redflex Traffic Systems Inc. and Silver Eagle Distributors”.

Below is Sullivan’s letter-to-the-editor and below that is the editorial he is responding to.

News-Journal editorial off base

In their collective rush to defend a convicted child murderer executed in 2004, many in the Texas press are routinely missing the facts about Gov. Rick Perry and the Cameron Todd Willingham case. The News-Journal’s editorial on Wednesday is just the latest example.

Governor Perry routinely makes his official schedules, correspondence and other documents available to the press and public. Our office fully complies with the Public Records Act. In fact, the governor has gone above and beyond by voluntarily releasing personal tax returns, detailed campaign finance data and putting office expenses online.

The News-Journal is just plain wrong about the opinion of Gerald Hurst in the Willingham murder case. Governor Perry’s office has repeatedly made Mr. Hurst’s four-page opinion public, an opinion considered by the Fifth Circuit Court of Appeals and the Governor’s Office before they upheld the jury verdict in the Willingham case.

We know full well that Texas newspapers oppose the death penalty, even for the most terrible crimes. However, Willingham was convicted by a Texas jury of murdering his three little girls based on the evidence, including a confession.

He was executed only after Texas courts, federal appeals courts and the U.S. Supreme Court reviewed the case and all of the evidence. The case was upheld in every appeal, including nine times by federal courts. Governor Perry is sworn to uphold Texas law, and does so every day.

Ray Sullivan, Austin, Chief of Staff, Office of the Governor

The editorial that Ray Sullivan was responding to was from October 14 and titled, “Governor’s secrets: Perry’s refusal to release documents the latest example“. It is copied in full below.

Wednesday, October 14, 2009

Gov. Rick Perry is the state’s longest-serving governor, even if he gets defeated next year by U.S. Sen. Kay Bailey Hutchison — who plans to resign next month or so to take on the governor in the Republican primary. Perry pays lip service to freedom of information and sunshine in government, but the fact remains he is arguably the most secretive governor in modern-day state history. His refusal to release the files he reviewed before the execution of Cameron Todd Willingham is just the latest example in a long line of actions designed to keep the public in the dark about the governor’s travels, correspondence and how decisions are made.

As has been reported, Perry replaced four members of the state Forensic Commission two days before it was to hear testimony from an independent arson expert, Craig Beyler, hired by the commission. Beyler believes the Corsicana house fire that killed three of Willingham’s children was not intentionally set, and the original investigation was terribly flawed.

Willingham was executed in 2004 for the crimes. He went to the death chamber proclaiming his innocence to the end. By replacing those four members, Perry managed to delay the panel hearing the arson report, probably until after the March primary. After all, it wouldn’t help his re-election chances if his commission concluded the state executed an innocent man. Sadly, it is very possible that is exactly what happened.

Now Perry is refusing to release the documents he examined to make his decision that the execution should proceed. Among those documents was a report from another arson expert, Gerald Hurst, who also questioned whether the Corsicana fire was arson.

As Keith Elkins, executive director of the Freedom of Information Foundation of Texas put it in a story Tuesday in the Dallas Morning News:

“Texas leads the nation in the number of executions. I think everyone would want to know that the decisions to execute someone are being based on the best possible information.”

A state Senate panel plans to hold hearings in early November to look into the forensic commission and how it intends to proceed in the Willingham investigation. At least that’s one committee with which the governor can’t interfere. But he would if he could, we suspect.

Early Friday morning, we posted the video from last Thursday’s CNN AC 360 program when Todd Willingham’s trial lawyer was on the program and made remarks that we thought violated his attorney-client obligations, which bind a lawyer even after his client has died. Now, some attorneys have begun posting about David Martin and some also seem to agree that Martin violated his ethical obligations as an attorney to his former client.

After reading this blog post, if you are think David Martin should be investigated, click here to download a grievance form and send it to the Office of the Chief Disciplinary Counsel, State Bar of Texas.

Yesterday, TMN sent an email to attorney and blogger Mark Bennett with a link to the CNN video and asked if he saw an ethics violation. He replied by posting his thoughts on his blog here.

My position is that a) all facts the lawyer learns in the course of representation is privileged; and b) this privilege survives the end of representation and the client’s death. So, for example, the fact that the defense team did its own pseudoscientific experiment would be privileged and not something that the ex-lawyer would be free to reveal (without the client’s permission).

Todd Willingham’s appellate lawyer, Walter Reaves, has also now responded to what David Martin said on CNN,

as a lawyer you ought to have some duty to not damage your client. At the very least, Mr. Martin is damaging Todd’s reputation, and his ability to obtain some relief in through the forensic commission. The fact that he aligning himself with Gov. Perry ought to tell you something.

At least three other lawyers have now also posted their thoughts on David Martin. Here is one on her blog “Preaching to the Choir”.

I have nothing nice to say about David Martin after watching this appalling performance, so perhaps I should not say anything at all. Except, I have no duty of loyalty to David Martin. But I do feel a duty of loyalty to my profession. I happen to think that defending people is one of the most noble things you can do. I can go on quite a tear about how we defenders of the constitution are the true patriots and the most noble actors of all in the criminal justice system. I take my job seriously. Very seriously. My clients trust me with their lives, just as Todd Willingham had to trust David Martin. As much as I rail against prosecutors and cops who bend the rules or cut corners, no one offends me more than the defense attorney who does not live up to my high ideals for the profession. From what I’ve seen in this video, David Martin is the kind of defense attorney I don’t ever want to be.

Here is another, Scott Greenfield, who says

Let’s assume, for the sake of argument, that Martin has no grossly improper motive, like he’s been promised a judgeship by Perry if he does everything in his power to undermine the evidence of Willingham’s innocence. If Martin truly believes what he’s saying to be true, his statements are the most irresponsible, unethical, improper I have ever heard from the mouth of a criminal defense lawyer. Outrageously wrong. Utterly disgraceful.

Here is a third, Jeff Gamso:

So we know that Martin was spouting bullshit. (He claimed to have just returned from “chasing cows,” so maybe there’s a reason.) We also know that at least one thing he talked about, the lighter fluid experiment, is covered by the work-product privilege. It’s a secret. He had no business telling anyone. A clear violation of his ethical obligations.

And then there’s the matter of going on the air to declare his client guilty. Why in the world would he do that? To garner business? Unlikely. That’s not the way you attract clients. For the glory of national television? Some people just can’t resist. Whatever the reason, he was wrong. Whatever he was thinking, he wasn’t thinking enough. That duty of loyalty. That obligation not to disadvantage. That lack of judgment. That putting his own interests before his client’s.

We hope many other lawyers speak up and that some of them file a complaint with the Texas Bar against David Martin.

Eileen Smith of Texas Monthly has also written about Martin, saying in her blog “In the Pink”:

Willingham’s trial lawyer David Martin is such a caricature of what people think of Texans that I was mortified watching it. Haven’t we been the posterior region of enough jokes this year, what with all the secession talk and Dancing With the Stars? And I’m not even a native Texan. So really, you guys should be extra-extra mortified.

Right from the start of the interview, you just know it’s going to be bad. For one, Martin is wearing a cowboy hat that’s about to fall off his head. And two, the guy’s drunk as a Honduran skunk.

Anderson Cooper: “David, you always believed that your client was guilty. Now after a half dozen experts have come forward to say there’s no way the fire was arson, you still say he was guilty. Why?”

Martin: “Uh, Anderson, excuse my informal attire, we’ve been out checking cows… uh… tell me your question again?”

Anderson: “About a half dozen fire experts around the country have looked at this case now, and say the evidence that was used… simply is not accurate…”

Martin: “Ohhhh, no, that’s not what I glean from these reports here…”

Sign the petition to Governor Rick Perry and the State of Texas to acknowledge that the fire in the Cameron Todd Willingham case was not arson, therefore no crime was committed and on February 17, 2004, Texas executed an innocent man.

We plan to deliver the petition at the 10th Annual March to Abolish the Death Penalty on October 24 at 2pm in Austin at the Texas Capitol.

Last Thursday, CNN AC360 ran a segment on the Todd Willingham controversy that dealt with a juror from Willingham’s trial. Randi Kaye spoke with the juror before the show by phone. See the video on YouTube or embedded below.

Here is a link to the written story now running on CNN.com’s front page.

The controversy has led juror Dorenda Brokofsky to think twice about the decision she made in a jury room in 1992.

“I don’t sleep at night because of a lot of this,” Brokofsky said. “I have gone back and forth in my mind trying to think of anything that we missed. I don’t like the fact that years later someone is saying maybe we made a mistake, that the facts aren’t what they could’ve been.”

Brokofsky spoke with CNN by phone from her Midwest home. She has long since moved away from tiny Corsicana, Texas, where the fire took place.

“I do have doubts now,” she said. “I mean, we can only go with what we knew at the time, but I don’t like the fact now that maybe this man was executed by our word because of evidence that is not true. It may not be true now. And I don’t like the fact that I may have to face my God and explain what I did.”

“When you’re sitting there with all those facts, there was nothing else we could see,” she said. “Now I don’t know. I can’t tell you he’s innocent, I can’t say 100 percent he’s guilty.”

Brokofsky had another revelation. She said she thought she would be excluded from the jury because of her family’s close relationship with key witness and then-Corsicana Assistant Fire Chief Douglas Fogg.

Her father was also a fire marshal for eight years before the Willingham fire.

“I was raised with my father being a fire marshal,” she said. “He went around proving that stuff, so he wasn’t here at that time. But I knew Doug Fogg, who was one of the witnesses. It was no secret, but I didn’t think they would pick me as a juror because of it.”

One week from today, we will head to the Texas Capitol for the 10th Annual March to Abolish the Death Penalty. We hope to hear from all the candidates running for Texas governor this week at some point before the march next Saturday. We have heard a lot lately about what Rick Perry thinks, because he has been in the news covering up the execution of an innocent man – Todd Willingham.

Today, Kinky Friedman is quoted in The Daily Beast on his views of the death penalty. Friedman spoke with Marty Beckerman about why he’s running for Texas governor as a Democrat and the blood on Rick Perry’s hands.

Excerpt:

His major campaign issue is ending the death penalty, which he criticizes Texas Gov. Rick Perry for wielding recklessly. “He fast-tracked the execution of this innocent guy, Cameron Todd Willingham,” Friedman says. “That’s blood on his Christian hands. There are plenty of innocent people in this corrupt justice system, but Rick is more concerned with protecting that system…

I would set up a commission to go case by case through death row and see what really happened, who is really innocent, a commission with real power to reprimand judges who have plenty of money and power. It’s a question of whether people want to free Jesus this time, or execute more innocent people like him.”

Friedman’s dream is to reverse Texas’s reputation as the state with the most executions and least literacy in the country.

“We are at the top of everything we should be at the bottom of, and at the bottom of everything we should be at the top of, as far as statistics go,” Friedman says. “Texas does have an independent spirit, which doesn’t always manifest itself in politics because politicians have hijacked the power … Good people don’t get into politics; it’s very rare.”