‘Standard business as usual’

    Here’s hoping that Rick Perry does indeed run for president, if only because his presence in the Republican race might prompt fresh discussion about the downside of the death penalty.Texas, of course, has long led the nation in state-sanctioned killings, and Perry as governor has done his bit to perpetuate this proud tradition, having presided over 200 executions during his 10-year tenure. Texas has already put six guys to death in 2011, and a seventh is slated on July 7 to receive the deadly trio of injections – sodium thiopental (for sedation), pancuronium bromide (to collapse the lungs), and potassium chloride (to stop the heart). It turns out that this seventh guy, Humberto Leal Garcia, was deprived of his right to obtain the best possible legal counsel, and that his life currently hangs in the balance because Perry refused to recognize the documented injustice and refused to grant a reprieve. But that sort of thing has been known to happen in Texas – 11 years ago, Texas law professor and attorney David Dow told me that the Long Star State had “a fundamentally broken judicial system” – which is why I’d welcome a Perry presidential candidacy. His devotion to the death penalty, even when the evidence doesn’t warrant killing a defendant, could certainly stand a lot more scrutiny.And I’m not even referring to Humberto Leal Garcia. I’ll deal with his case momentarily, but first let us look at a far more egregious Perry episode.Cameron Todd Willingham was convicted and sentenced to death for having supposedly set his house on fire and killing his three children. After languishing on death row for 12 years, he was scheduled for execution in 2004. As the clock ticked down, however, independent fire investigator Gerald Hurstor, having studied the trial evidence, concluded that Willingham had been convicted on the basis of “junk science,” that in fact the fire had been accidentally triggered by a faulty space heater or bad wiring. Willingham’s lawyers pleaded with Perry for a stay of execution so that the courts could study Hurstor’s report (which concluded that “there is not a single item of physical evidence in this case that supports a finding of arson”).Perry said no, and Willingham was duly executed. But that’s not really the bad part. The bad part came five years later, in October 2009.A state panel, the Texas Forensic Science Commission, was poking around the case, and taking seriously the very real possibility that an innocent man had been put to death. The commissioners was getting ready to meet with a second fire investigator, Craig Beyler, who had already concluded that Willingham’s trial had been slipshod.But the meeting never took place. Take a guess why not.Because, on the eve of the meeting, Perry summarily removed three of the commissioners and installed, as the new chairman, a law-and-order hardliner…who proceeded to cancel the meeting and essentially end the probe.The ousted chairman told the press that Perry’s people were “concerned about the investigations we were conducting,” but Perry himself preferred a more benign interpretation. He said that his decision to disrupt the commission was “pretty standard business as usual.”And so, in a sense, it was. Texas injustice is indeed business as usual. Shortly before Perry became governor, a guy named Claude Jones was lethally injected for murdering a store clerk. He had been convicted on the basis of a hair fragment. Jones’ lawyers wanted to submit the fragment to a DNA test. The Texas courts denied the request, and Jones died. Ten years later – last November – the hair fragment was finally tested for DNA, and take a wild guess what they discovered: It didn’t come from Jones’ head.Now we have the Humbert Leal Garcia case. He’s the guy who’s due to die in nine days. He was convicted of a killing, and maybe he really did it. But the state of Texas gave Garcia a lousy defense lawyer who failed to investigate the case or challenge the most problematic evidence. (No surprise there. In one notorious Texas death penalty case, a court-appointed defense lawyer slept through most of his client’s trial.) More importantly, Garcia is a Mexican citizen; under the rules of the Vienna Convention on Consular Relations and the U.N. charter, Texas should have allowed Garcia to contact Mexican consular officials – who might well have provided him with far better legal assistance. Moreover, the International Court of Justice in 2004, and the U.S. Supreme Court in 2008, both ruled that newly-arrested foreigners should be allowed to speedily contact their consulates.But Perry has already rejected these trifling niceties. Garcia is good to go.Politically, of course, Perry’s hardline stance on executions – and even his behavior in the Willingham case – wouldn’t sink him in the Republican primaries. Not a chance. After all, most conservatives (and most Americans generally, according to Gallup) staunchly support state-sanctioned killing. The last presidential candidate to vocally oppose the policy was Michael Dukakis in 1988, and he wound up teaching college classes in Hawaii. But given the fact that roughly 140 people have been exonerated and freed from death row since 1976 (thanks, in a growing number of cases, to DNA testing), and given the fact that retired high court Justice John Paul Stevens recently warned about “the risk that the state may put an actually innocent person to death,” simple fairness suggests that we should at least scrutinize these cases more closely rather than simply assume that governors like Rick Perry are removing bad apples from the barrel.Eleven years ago, a crime expert told me that “the risk of a wrongful execution concerns folks across the political spectrum.” If only that were true.

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