The death penalty's degrees of guilt

Gary Graham, who was executed Thursday, has become the latest verse in an unending song: whether Texas has executed an innocent man during George W. Bush's tenure as governor. More than 130 inmates have been executed since Mr. Bush's election. And ever since the governor first insisted every one has been guilty, the national debate over the death penalty has been transformed into a game of "gotcha" - with the media and death-penalty opponents determined to prove him wrong.

Mr. Graham's case illustrates two things: It's virtually impossible to prove that someone innocent was executed, and asking whether someone is innocent is the wrong question. Graham was convicted on the basis of the testimony of one eyewitness. Other witnesses who weren't heard at trial insist he was not the man who killed Bobby Lambert. Somebody is obviously mistaken.

Graham may well have been innocent, but just as the witness who identified him may be wrong, so too may be the witnesses who say he wasn't the killer. In other words, it is impossible to prove that Graham didn't commit the crime.

Except for cases where DNA evidence is available, it is virtually never possible to prove someone didn't commit a crime. Over the past 25 years, more than 75 men have been released from death row nationwide - but no more than a handful of those have been shown not to have committed the crime for which they were sent to death row. Graham's case demonstrates that being "innocent" on death row means there is not sufficient evidence to warrant that the inmate be sentenced to die.

Graham's case teaches a second lesson as well: It's distortion to focus on the issue of innocence, because there are actually two types of innocence in death-penalty cases, and the current death-penalty debate focuses on the wrong one.

A defense attorney in a death-penalty case has three distinct tasks, which correspond to the three phases of a capital trial.

The first task: Pick a jury that includes at least some members who have qualms about the death penalty - not an easy job because prosecutors strive precisely to exclude such jurors. But because most capital-murder defendants are convicted, the pivotal battle occurs at the sentencing phase of the trial.

Second task: Because most defendants are convicted, the defense lawyer must take seriously the presumption of innocence and force the state to prove beyond a reasonable doubt that the defendant committed the crime.

Third task: Persuade the jury at the punishment phase of the trial that the defendant should be sentenced to life rather than death.

But what about defendants whose lawyers perform ineptly at selecting a jury or offering a persuasive argument against the death penalty? These defendants may be guilty of committing the crime, but the reason they're sentenced to death rather than life in prison is the ineptitude of their lawyers. How does the concept of innocence apply to them?

Graham was represented by a notoriously inept death-penalty lawyer. He didn't interview any witnesses who could have testified Graham wasn't the shooter. He literally put on no defense.

Similarly, a federal district court ordered a new trial for a Texas death-row inmate because his lawyer had slept through portions of the trial. In another case, the Fifth Circuit Court of Appeals ordered that a death-row inmate receive a new trial because his appointed lawyer had, at the time of the trial, been involved in a personal relationship with the prosecution's key witness. During the past 18 months, one lawyer appointed to defend two indigent capital defendants has been reprimanded twice by the Texas Bar Association for official misconduct. Another was cited by the state bar for interfering with an official investigation by producing false documents.

Innocent men get convicted because their lawyers did a bad job at the second task. But guilty men end up on death row - rather than with a life sentence - because their lawyers failed at either the first task or the third.

The focus on whether a defendant committed the crime for which he was sent to prison obscures the more urgent issue: The system of appointing lawyers for indigent capital defendants is corrupt, with the result that many indigent defendants are inadequately represented.

In most Texas counties, lawyers for indigent defendants are appointed by the trial judges. Trial judges must run for election every four years. Because the population largely supports the death penalty, judges guard their death-penalty credentials zealously.

In 1994, a trial judge was defeated by an opponent who ran on the single issue that the incumbent had ordered the release of a cop killer. (The charge was true, but the reason the judge ordered the alleged cop killer released is that the only evidence against him was a confession, which the police had coerced.) That same year, a judge on the court of criminal appeals, the highest criminal court in the state, was defeated by an opponent whose sole campaign issue was that the incumbent was too willing to rule in favor of the death-row inmate in capital-murder appeals. These same elected judges determine who will represent capital-murder defendants and how much the appointed lawyers will be paid.

There is a symbiotic relationship in Texas between the judges who must run for office and appointed lawyers who are also voters and campaign contributors. The lawyer who represented Graham was rewarded by trial judges and appointed to represent at least 10 other men - all of whom ended up on death row.

Of the 22 Harris County criminal-court trial judges, 16 received campaign contributions from lawyers who've been appointed to represent capital defendants over the past 18 months. Most of these lawyers earn much if not all of their income from receiving appointments, and lawyers seeking future appointments must avoid antagonizing judges who have their hands on the spigot.

Now there will always be doubt about who killed Bobby Lambert. But one thing there's no doubt about: Graham received utterly inept legal assistance at his trial. It's a tragedy if innocent people go to prison, but it's a scandal that we have a system that ensures the tragedy will happen.

*David R. Dow is a law professor at the University of Houston, specializing in constitutional law and death-penalty law. He has worked on 25 death-penalty appeals.

(c) Copyright 2000. The Christian Science Publishing Society