Killing machine

Clouds hover, but rain has not yet begun to fall on a Wednesday two weeks ago. It is 6:18 p.m., and Larry Fitzgerald has just finished the job he's done more than a hundred times before: witnessing a Texas inmate being put to death.

This time, it is a 44-year-old man named John Albert Burks.

During a six-minute stroll from the execution chamber to his office in the Texas Department of Criminal Justice administrative building in downtown Huntsville, Fitzgerald keeps quiet, his head bowed.

None of the noisy throngs of protesters who will be present the next week for the controversial execution of Houston criminal Gary Graham line the streets this night. Only an eerie calm greets Fitzgerald.

Convicted more than a decade ago of shooting Jesse Contreras, a Waco tortilla factory owner, during a botched robbery attempt, Burks has died in obscurity. No Bianca Jagger, no Jesse Jackson, no Danny Glover--all of whom lobbied for Graham--has voiced objections about Burks' fate.

"Aw, you're just going to see somebody going to sleep," Fitzgerald, the state's spokesman for death row, had told a reporter--an anxious newcomer to the execution process--20 minutes earlier.

At 6:24 p.m., 13 minutes after the executioner had injected a lethal cocktail of sedatives, muscle relaxants, and heart-stopping potassium chloride into intravenous tubes inserted in Burks' arms, Fitzgerald finally speaks. He doesn't sound as cavalier as he had before Burks' death.

"With an execution, everyone is a victim," he says quietly. "I never believed that crap about closure."

The moment stands out as an uncharacteristically dour one for Fitzgerald, who is professionally responsible for putting the best face on Texas' death row. His job has become a lot tougher in recent weeks.

The worldwide press has focused, often with horror, on the rapid-fire execution machinery that has operated under presidential candidate George W. Bush's tenure as Texas governor.

The numbers alone have stirred some of the attention: 133 prisoners have been executed since Bush became governor; 14 more are scheduled to die before Election Day in November. Since the U.S. Supreme Court re-instated the death penalty in 1976, Texas has executed 222 men and women and distinguished itself far and away as the most prolific and resolute among the states that allow capital punishment. Virginia, the next closest rival, has killed 76. Awaiting execution on Texas' death row are 455 inmates, 180 of them black men; another 104 are Hispanic males.

The national media's interest intensified after Bush issued in early June a 30-day stay for Ricky Nolen McGinn, a death-row inmate who had been scheduled to die for the 1993 rape and murder of his 12-year-old stepdaughter. The governor agreed that additional DNA testing could possibly prove that McGinn didn't rape the child.

Bush's unprecedented move showed how advanced DNA testing has reconfigured the landscape of the death-row debate. The new technology has helped Barry Scheck, co-director of the Innocence Project, free more than two dozen people and has fueled capital punishment critics' long-held suspicions that among the condemned are innocent men and women. Those who have fought death row for years, while few listened, suddenly see doors swinging open.

Two weeks ago--one day before Burks' execution--the Senate Judiciary Committee called upon a former Texas Court of Criminal Appeals judge to defend at a public hearing the state's high rate of death-row convictions. A day earlier, newspapers around the country had run front-page stories about a Columbia University study that claimed to have found serious errors in 68 percent of the murder trials nationwide that ended in a death sentence between 1973 and 1995.

This winter, Illinois Gov. George Ryan, a Republican, declared a moratorium on executions in his state after 13 condemned men were freed based on new evidence. In Texas, Bush ally state Sen. David Sibley of Waco helped draft legislation to allow for DNA testing of inmates before executions. And state Attorney General John Cornyn ordered a review of six Texas death-row cases, specifically ones for which Walter Quijano, a psychologist, had testified. The attorney general's move followed a U.S. Supreme Court decision to send back to the Texas Court of Criminal Appeals the case of death-row inmate Victor Hugo Saldano, specifically because Quijano had told jurors that the defendant represented greater danger to his community because of his Hispanic background.

Other than his 30-day reprieve for McGinn, however, Gov. Bush has shown no inclination to halt Texas' fast-moving execution machinery. On June 22, eight days after Burks' execution, the governor abided by a Board of Pardon and Paroles ruling and made no effort to halt Gary Graham's execution despite the high-profile protests and pleas. "I'm absolutely confident that everybody who has been put to death has two things. One, they were guilty of the crime charged, and secondly, they had full access to our courts, both state and federal," he told a debate audience in March.