Lambs to the slaughter

Randall Dale Adams is married and living a quiet life in Columbus, Ohio, near his mother and family. Clarence Brandley has turned to preaching, opening his own church in Houston.

What the two men have in common, of course, is that each--after years in prison and torturous legal appeals--managed to escape the best efforts of the state of Texas to kill them for crimes they did not commit.

Adams and Brandley are only the most famous of seven men who have been sent to Texas Death Row but released when it became clear that they almost certainly did not commit the crimes of which they were convicted.

Zealous prosecutors, suppressed evidence, perjured testimony, or shoddy police work conspired in various ways to bring the men within days, and in some cases hours, of execution.

Their unjust convictions loom large as both the Texas Legis-lature and the U.S. Congress consider new laws intended to speed up executions by limiting the appeals that Death Row inmates can file.

The federal legislation, called the "Effective Death Penalty Act of 1995," has already cleared the House as part of the Republican crime package. The Texas legislation, known more benignly as House Bill 3, is pending in the Texas Legislature.

The bills would limit, on both the federal and state levels, how much time convicted inmates have to file appeals after they are convicted. They would also change procedural rules, making it harder for defendants to win a court's permission to pursue their claims.

Death penalty supporters, long outraged that more than a decade can easily pass before a convicted capital murderer is actually executed, want the process to go faster.

Men and women guilty of heinous murders, they say, are buying years of time pursuing every appeal available to them under existing state and federal laws. Execution must be swift, they argue, if the spectre of ultimate punishment is to deter other would-be killers.

"The five- and 10-year delays undermine a lot of the value of the death penalty," says David Price, an attorney for the Washington Legal Foundation, a D.C. think tank that supports legislation to speed up executions.

But without the lengthy appeals process, death penalty foes point out, people like Brandley and Adams might now be dead, executed before they were cleared of their alleged crimes.

Those howling for swifter executions, they say, are ignoring the dozens of documented cases in which state courts have sent innocent men to Death Row.

"I think we will see many more people facing death who are actually innocent, and Texas has a horrible track record," says Diann Rust-Tiernay, director of the American Civil Liberties Union Death Penalty Project. "In the end, innocent people will be executed."

Sentencing innocent people to death is not uncommon. A 1993 report prepared by the staff of the U.S. House Judiciary Committee's Subcommittee on Civil and Constitutional Rights found 48 cases across the nation of capital murder defendants who were ultimately released from Death Row "with significant evidence of their innocence."

The men--including five in Texas--were "living proof that innocent people are sentenced to death," the report concluded.

In many of the cases, more than 10 years of appeals and remarkable legal assistance not available to most Death Row inmates were required to free the men.

Since that report, two other Texas cases have surfaced in which substantial evidence of innocence helped free convicted men.

Choking off death penalty appeals, foes say, will only increase the likelihood that some of those innocent people will be executed. That risk is especially high in Texas, with its established penchant for sending men and women to Death Row.

Texas continues to hold its lead as the nation's most prolific death penalty state. As of last Friday, Death Row held 398 inmates, the most in the country.

Since the U.S. Supreme Court began allowing states to reimpose the death penalty in the late 1970s, Texas has executed 92 people, also the most in the country.

Republican protestations aside, death penalty opponents say, the deck is already handily stacked against people charged with capital crimes.

Virtually all death penalty defendants are poor and get court-appointed attorneys, many of whom are no match for the more experienced prosecutors they face, says Steve Hall of the Texas Re-source Center, a federally funded legal rights group that assists the condemned with their appeals.

The center's attorneys, Hall notes, receive cases after the defendants have already been convicted and sentenced to die.

In many cases, he says, a review of the case file shows that the original court-appointed attorney did not have the time, money or resources to mount a vigorous defense.

Hall's assessment may seem self serving, but it is the same conclusion reached by an outside consultant hired by the Texas Bar Association in 1993 to look at what kind of legal help accused capital murderers receive.

"We believe, in the strongest terms possible, that Texas has already reached the crisis stage in capital representation and that the problem is substantially worse than that faced by any other state with the death penalty," concluded the report by the Spangen-berg Group of Massachusetts.

"The situation in Texas," the study says," can only be described as desperate."

After defendants are convicted and sentenced to death, the report concluded, their chances of obtaining good legal representation for their appeals only get worse.

Hall's center tries to find attorneys who will handle Death Row appeals, or represents inmates directly. Finding lawyers who will take the cases, when they are assured of ample work and virtually no pay, is hard, Hall says.

In theory, he says, the appeals system affords any inmate opportunities to challenge his conviction. In practice, pressing Death Row appeals is a monumental task, crippled by the lack of money to pay good attorneys.

"You can design this really marvelous system of checks and balances and safeguards, but if you don't provide adequate funding you turn this paper system into a paper game, and that is what Texas has historically done," Hall says.

(As it is now written, the Texas death penalty legislation would provide government funding for appeals attorneys. Opponents fear that clause may disappear as the measure winds its way through the process.)

In the case of clearly guilty defendants, death penalty foes concede, there is little public sympathy for the paucity of legal help.

But for people like Brandley and Adams, skilled lawyers literally saved their lives.

In both cases, the Texas Court of Criminal Appeals finally ruled, prosecutors withheld crucial evidence that indicated the men were innocent. Witnesses at their trials lied from the stand, and prosecutors did not bother to correct the perjured testimony.

Adams--convicted of killing a Dallas police officer in 1976--had his sentence commuted to life four years later when the U.S. Supreme Court overturned Texas rules for picking juries in capital cases.

The appeal victory spared him from death, and eight years later he won his freedom when the appeals court ruled that he had been denied a fair trial. Former Dallas County Assistant District Attorney Doug Mulder, the court ruled, had suppressed evidence that pointed to Adams' innocence.

Adams most probably would not have been freed, however, if his case had not attracted widespread attention after it was featured in a documentary film called The Thin Blue Line.

After the film's release, the real killer of the police officer confessed in an interview with the Dallas Times Herald, and public pressure helped force a hearing on Adams' guilt.

Brandley, a black high school janitor from Conroe, was convicted in 1980 of raping and murdering a white teenage girl at the Conroe High School.

The case became a lightning rod for civil rights groups, who believed that Brandley had been railroaded because he is black.

He was finally freed after nine years on Death Row, amid substantial evidence that he was not guilty. During a 1987 hearing on the case, an employee of the Conroe judge who sentenced Brandley to death admitted that the trial judge set Brandley's first execution date on another employee's birthday as a "present."

The two cases, death penalty foes say, underscore two potentially fatal flaws in efforts to speed up executions.

The first, they say, is that defendants who have in fact been railroaded by aggressive prosecutors fight an uphill battle to prove their innocence.

An example of that, they say, is playing out now in El Paso, where a Mexican national is fighting execution after he confessed to killing a taxi driver. The trial judge and jury in that case were never told that Cesar Fierro Reyna confessed after El Paso police told him his parents were being held by Mexican authorities and would be tortured if he did not fess up.

Even the former assistant district attorney who prosecuted Fierro is now fighting for his release, but Fierro remains on Death Row.

The system, death penalty foes say, is stacked against those who have been convicted, and innocence makes little difference.

"It's very dangerous and it's very scary," says the ACLU's Rust-Tiernay.
A second potentially fatal flaw, opponents of the pending legislation say, is that it can be years after a trial before proof of someone's innocence can be found.

Randy Shaffer, a Houston attorney who helped Adams gain his freedom, notes that it took over a decade to gather all the information needed to prove his innocence. "A lot of times you can't get information until time goes by and people are more willing to talk," Shaffer says. "In the heat of the moment, people aren't going to say anything."

In Brandley's case, it took almost the full nine years of his time on Death Row for attorneys and investigators to gather the evidence which ultimately convinced the courts to free him.

Significantly, neither Adams or Brandley was retried for their purported crimes after their convictions were overturned, because prosecutors conceded they did not have strong cases.

But under the new rules proposed at the state and federal levels, both Brandley and Adams might well have run out of appeals before they were able to clear themselves.

The full impact of the new legislation, should it pass, is hard to gauge, says the ACLU's Rust-Tiernay. Like all matters relating to executions, it will undoubtedly be subject to years of legal wrangling and court interpretation.

Shaffer, who helped free Adams, doubts the laws will do anything to speed up executions. Most of the current delays, he says, come from courts that take years to decide appeals that have been filed, not delaying tactics by lawyers.

Just last week, Shaffer says, the Texas Court of Criminal Appeals finally ruled on a death penalty appeal he filed over five years ago.

"The most delay in the system is not by the defendant, it's by the court," he says.

Whatever the cause of delays, they do work to the advantage of innocent inmates, death penalty foes say. The more time an Adams or Brandley can buy, the better chance they have of proving they are not guilty.

A matter of years between sentencing and execution, Hall says, is a small price to pay for efforts to ensure that the innocent are not executed.

Remarkably, Price, of the Washington Legal Foundation, disagrees.
"At some point, you wind up having to make a trade-off," he says. "There is an unavoidable theoretical possibility of an innocent person being executed no matter what the safeguards are. You have to consider what safeguards are appropriate versus making the system so protracted that it's completely unworkable.

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