The Texas Clemency Memos (Berlow, 2003)

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Unformatted text preview: The
Texas
Clemency
Memos
 by
Alan
Berlow
 
 http://www.theatlantic.com/doc/200307/berlow
 
 
 
 July/August
2003
 
 As
the
legal
counsel
to
Texas
Governor
George
W.
Bush,
Alberto
R.
Gonzales—now
the
 White
House
counsel,
and
widely
regarded
as
a
likely
future
Supreme
Court
nominee— prepared
fifty‐seven
confidential
death‐penalty
memoranda
for
Bush's
review.
Never
 before
discussed
publicly,
the
memoranda
suggest
that
Gonzales
repeatedly
failed
to
 apprise
Bush
of
some
of
the
most
salient
issues
in
the
cases
at
hand
 
 
 On
the
morning
of
May
6,
1997,
Governor
George
W.
Bush
signed
his
name
to
a
confidential
 three‐page
memorandum
from
his
legal
counsel,
Alberto
R.
Gonzales,
and
placed
a
bold
 black
check
mark
next
to
a
single
word:
DENY.
It
was
the
twenty‐ninth
time
a
death‐row
 inmate's
plea
for
clemency
had
been
denied
in
the
twenty‐eight
months
since
Bush
had
 been
sworn
in.
In
this
case
Bush's
signature
led,
shortly
after
6:00
P.M.
on
the
very
same
 day,
to
the
execution
of
Terry
Washington,
a
mentally
retarded
thirty‐three‐year‐old
man
 with
the
communication
skills
of
a
seven‐year‐old.
 
 Washington's
death
was
barely
noted
by
the
media,
and
the
governor's
office
issued
no
 statement
about
it.
But
the
execution
and
the
three‐page
memo
that
sealed
Washington's
 fate—along
with
dozens
of
similar
memoranda
prepared
for
Bush—speak
volumes
about
 the
way
the
clemency
process
was
approached
both
by
Bush
and
by
Gonzales,
the
man
 most
often
mentioned
as
the
President's
choice
for
the
next
available
seat
on
the
Supreme
 Court.
 
 During
Bush's
six
years
as
governor
150
men
and
two
women
were
executed
in
Texas—a
 record
unmatched
by
any
other
governor
in
modern
American
history.
Each
time
a
person
 was
sentenced
to
death,
Bush
received
from
his
legal
counsel
a
document
summarizing
the
 facts
of
the
case,
usually
on
the
morning
of
the
day
scheduled
for
the
execution,
and
was
 then
briefed
on
those
facts
by
his
counsel;
based
on
this
information
Bush
allowed
the
 execution
to
proceed
in
all
cases
but
one.
The
first
fifty‐seven
of
these
summaries
were
 prepared
by
Gonzales,
a
Harvard‐educated
lawyer
who
went
on
to
become
the
Texas
 secretary
of
state
and
a
justice
on
the
Texas
supreme
court.
He
is
now
the
White
House
 counsel.
 
 Related
Material:
 Execution
Summaries
 Copies
of
the
death‐penalty
memoranda
on
Terry
Washington,
David
Wayne
Stoker,
and
 Billy
Conn
Gardner.
 
 Gonzales
never
intended
his
summaries
to
be
made
public.
Almost
all
are
marked
 CONFIDENTIAL
and
state,
"The
privileges
claimed
include,
but
are
not
limited
to,
claims
of
 Attorney‐Client
Privilege,
Attorney
Work‐Product
Privilege,
and
the
Internal
Memorandum
 exception
to
the
Texas
Public
Information
Act."
I
obtained
the
summaries
and
related
 documents,
which
have
never
been
published,
after
the
Texas
attorney
general
ruled
that
 they
were
not
exempt
from
the
disclosure
requirements
of
the
Public
Information
Act.
 
 Gonzales's
summaries
were
Bush's
primary
source
of
information
in
deciding
whether
 someone
would
live
or
die.
Each
is
only
three
to
seven
pages
long
and
generally
consists
of
 little
more
than
a
brief
description
of
the
crime,
a
paragraph
or
two
on
the
defendant's
 personal
background,
and
a
condensed
legal
history.
Although
the
summaries
rarely
make
 a
recommendation
for
or
against
execution,
many
have
a
clear
prosecutorial
bias,
and
all
 seem
to
assume
that
if
an
appeals
court
rejected
one
or
another
of
a
defendant's
claims,
 there
is
no
conceivable
rationale
for
the
governor
to
revisit
that
claim.
This
assumption
 ignores
one
of
the
most
basic
reasons
for
clemency:
the
fact
that
the
justice
system
makes
 mistakes.
 
 A
close
examination
of
the
Gonzales
memoranda
suggests
that
Governor
Bush
frequently
 approved
executions
based
on
only
the
most
cursory
briefings
on
the
issues
in
dispute.
In
 fact,
in
these
documents
Gonzales
repeatedly
failed
to
apprise
the
governor
of
crucial
 issues
in
the
cases
at
hand:
ineffective
counsel,
conflict
of
interest,
mitigating
evidence,
 even
actual
evidence
of
innocence.
 
 The
case
of
Terry
Washington
was
typical.
Gonzales
devoted
nearly
a
third
of
his
three‐ page
report
on
Washington
to
the
gruesome
details
of
the
crime.
He
informed
Bush
that
the
 victim,
Beatrice
Huling,
was
a
twenty‐nine‐year‐old
restaurant
manager,
and
wrote,
"An
 autopsy
determined
she
suffered
85
stab
wounds,
seven
of
which
were
fatal,
and
was
 eviscerated."
But
the
summary
refers
only
fleetingly
to
the
central
issue
in
Washington's
 clemency
appeal—his
limited
mental
capacity,
which
was
never
disputed
by
the
State
of
 Texas—and
presents
it
as
part
of
a
discussion
of
"conflicting
information"
about
the
 condemned
man's
childhood.
(The
page
containing
this
discussion
is
missing
from
the
copy
 of
the
summary
signed
by
Bush,
raising
the
possibility
that
he
never
actually
saw
it
before
 authorizing
Washington's
execution.)
Most
important,
Gonzales
failed
to
mention
that
 Washington's
mental
limitations,
and
the
fact
that
he
and
his
ten
siblings
were
regularly
 beaten
with
whips,
water
hoses,
extension
cords,
wire
hangers,
and
fan
belts,
were
never
 made
known
to
the
jury,
although
both
the
district
attorney
and
Washington's
trial
lawyer
 knew
of
this
potentially
mitigating
evidence.
(Washington
did
not
testify
at
his
trial
or
his
 sentencing.)
 
 Gonzales's
lack
of
attention
to
Washington's
mental
retardation
is
particularly
surprising
 because
demand
was
growing
nationwide
to
ban
executions
of
the
retarded,
and
because
 the
most
highly
publicized
case
of
a
retarded
defendant,
that
of
Johnny
Paul
Penry,
was
 even
then
playing
itself
out
in
Texas
courts.
The
miscarriages
in
the
Washington
case
were
 also
precisely
the
kind
of
thing
Bush
claimed
to
want
to
be
told
about.
"I
don't
believe
my
 role
is
to
replace
the
verdict
of
a
jury
with
my
own,"
he
wrote
in
his
autobiography,
A
 Charge
to
Keep
(1999),
"unless
there
are
new
facts
or
evidence
of
which
a
jury
was
 unaware,
or
evidence
that
the
trial
was
somehow
unfair."
Such
information
had
indeed
 come
to
light
in
Washington's
case,
yet
Gonzales's
memorandum
did
not
tell
Bush
about
it.
 
 Not
only
did
Gonzales
ignore
Washington's
mental
limitations,
but
he
didn't
mention
that
 Washington's
trial
lawyer
had
failed
to
enlist
a
mental‐health
expert
to
testify
on
 Washington's
behalf
(although
he
was
entitled
to
one
under
a
1985
Supreme
Court
ruling),
 which
in
a
death‐penalty
case
clearly
suggests
ineffective
counsel.
Nor
did
he
mention
that
 ineffective
counsel
and
mental
retardation
were
in
fact
the
central
issues
raised
in
the
 thirty‐page
clemency
petition.
Gonzales
noted
only
that
the
petition
had
been
rejected
by
 the
Board
of
Pardons
and
Paroles,
a
body
that
one
federal
judge
condemned
in
1998
for
its
 tendency
to
rule
on
clemency
appeals
without
any
investigation
or
discussion
among
its
 members.
 
 Gonzales
declined
to
be
interviewed
for
this
story,
but
during
the
2000
presidential
 campaign
I
asked
him
if
Bush
ever
read
the
clemency
petitions
of
death‐row
inmates,
and
 he
equivocated.
"I
wouldn't
say
that
was
done
in
every
case,"
he
told
me.
"But
if
we
felt
 there
was
something
he
should
look
at
specifically—yes,
he
did
look
from
time
to
time
at
 what
had
been
filed."
I
have
found
no
evidence
that
Gonzales
ever
sent
Bush
a
clemency
 petition—or
any
document—that
summarized
in
a
concise
and
coherent
fashion
a
 condemned
defendant's
best
argument
against
execution
in
a
case
involving
serious
 questions
of
innocence
or
due
process.
Bush
relied
on
Gonzales's
summaries,
which
never
 made
such
arguments.
 
 Did
Gonzales
reserve
the
most
important
issues
and
documents
in
the
Washington
case
for
 a
more
extensive
oral
briefing
of
the
governor?
Only
he
and
Bush
know.
It
is
highly
unlikely,
 however,
given
that
Gonzales
usually
presented
an
execution
summary
to
the
governor
on
 the
day
of
an
execution
and
that,
as
he
has
acknowledged,
his
briefings
typically
lasted
no
 more
than
thirty
minutes—far
too
little
time
for
a
serious
discussion
of
a
complex
clemency
 plea.
Bush's
appointment
calendar
for
the
morning
of
Washington's
execution
shows
a
half‐ hour
slot
marked
"Al
G—Execution."
 
 All
governors
claim
that
they
agonize
over
death
penalty
decisions.
During
his
time
in
office
 Bush
made
numerous
statements
to
this
effect,
among
them
"I
take
every
death
penalty
 case
seriously
and
review
each
case
carefully"
and
"Each
case
is
major,
because
each
case
is
 life
or
death."
In
his
autobiography
he
wrote,
"I
review
every
death
penalty
case
 thoroughly"
and
added,
referring
to
his
legal
staff,
"For
every
death
penalty
case,
they
brief
 me
thoroughly,
review
the
arguments
made
by
the
prosecution
and
the
defense,
raise
any
 doubts
or
problems
or
questions."
Bush
always
maintained
that
this
review
provided
what
 he
called
a
"fail‐safe"
method
for
ensuring
due
process
and
certainty
of
guilt.
Asked
about
 the
governor's
handling
of
capital
cases,
Johnny
Sutton,
Governor
Bush's
adviser
on
 criminal‐justice
policy,
told
The
New
York
Times
in
May
of
2000,
"This
is
probably
the
most
 important
thing
we
do
in
state
government."
 
 But
Gonzales's
execution
summaries
belie
these
assurances
of
thorough
and
judicious
 review.
The
memoranda
seem
attuned
to
a
radically
different
posture,
assumedby
Bush
 from
the
earliest
days
of
his
administration—one
in
which
he
sought
to
minimize
his
sense
 of
legal
and
moral
responsibility
for
executions.
Bush
repeatedly
cited
a
Texas
statute
that
 says
a
governor
may
do
nothing
more
than
grant
a
thirty‐day
reprieve
to
an
inmate
unless
 the
Board
of
Pardons
and
Paroles
has
recommended
a
broader
grant
of
clemency.
 Admittedly,
the
governor's
clemency
authority
is
far
more
limited
in
Texas
than
in,
for
 example,
Illinois,
where
Governor
George
Ryan
unilaterally
commuted
the
death
sentences
 of
167
men
and
women
last
January,
shortly
before
leaving
office.
Nevertheless,
Bush's
 failure
to
intervene
was
governed
as
much
by
personal
choice
as
by
legal
limitation.
Had
 Bush
wanted
to
commute
a
sentence
or
otherwise
prevent
an
execution,
he
unquestionably
 could
have
done
so.
Members
of
the
BPP
are
appointed
by
the
governor
to
six‐year
rotating
 terms.
By
the
end
of
his
governorship
Bush
had
appointed
all
eighteen
members.
If
he
or
 Gonzales
had
had
any
serious
doubts
about
a
particular
case,
even
on
the
morning
of
a
 scheduled
execution,
Bush
could
easily
have
prevailed
on
the
board
to
reconsider
the
 matter—to
conduct
an
investigation,
hold
hearings,
interview
witnesses,
or
do
whatever
 else
was
necessary
to
resolve
those
doubts.
 
 In
fact,
on
one
highly
controversial
occasion,
in
1998,
Bush
intervened
with
the
board
 before
it
had
a
chance
to
make
a
recommendation
to
him.
Henry
Lee
Lucas
had
been
 convicted
of
nine
other
murders
(for
which
he
was
serving
six
life
sentences,
two
seventy‐ five‐year
sentences,
and
one
sixty‐year
sentence)
but
had
also
confessed
falsely
to
 hundreds
more.
After
the
1984
trial
at
which
Lucas
was
sentenced
to
death,
it
became
 apparent
that
he
hadn't
even
been
in
Texas
when
the
victim
had
been
murdered;
 investigations
by
two
successive
state
attorneys
general
subsequently
concluded
that
 Lucas
had
been
wrongly
convicted.
Concerned
that
Lucas
was
about
to
be
executed
for
a
 crime
he
hadn't
committed,
Bush's
office
let
the
BPP
know
that
Bush
was
unwilling
to
see
 that
happen.
The
BPP
soon
recommended
(with
a
17‐1
vote)
commutation
to
life
in
prison,
 which
Bush
then
approved.
Explaining
his
decision,
Bush
noted
that
the
jurors
at
Lucas's
 trial
"did
not
know"
certain
facts
that
came
out
only
after
trial.
Gonzales
could
have
raised
a
 similar
concern
in
his
Terry
Washington
summary,
but
didn't.
 
 At
the
outset
of
his
administration
Governor
Bush
presented
a
standard
for
clemency
that
 all
but
ensured
that
few
if
any
death
sentences
would
be
seriously
examined.
"In
every
 case,"
he
wrote
in
A
Charge
to
Keep,
"I
would
ask:
Is
there
any
doubt
about
this
individual's
 guilt
or
innocence?
And,
have
the
courts
had
ample
opportunity
to
review
all
the
legal
 issues
in
this
case?"
This
is
an
extraordinarily
narrow
notion
of
clemency
review:
it
seems
 to
leave
little,
if
any,
room
to
consider
mental
illness
or
incompetence,
childhood
physical
 or
sexual
abuse,
remorse,
rehabilitation,
racial
discrimination
in
jury
selection,
the
 competence
of
the
legal
defense,
or
disparities
in
sentences
between
co‐defendants
or
 among
defendants
convicted
of
similar
crimes.
Neither
compassion
nor
"mercy,"
which
the
 Supreme
Court
as
far
back
as
1855
saw
as
central
to
the
very
idea
of
clemency,
is
 acknowledged
as
being
of
any
account.
 
 The
record
suggests
that
what
Bush
described
in
his
autobiography
as
"a
fair
hearing
and
 full
access
to
the
courts"
meant
in
reality
nothing
more
than
that
a
case
had
received
some
 sort
of
legal
attention
at
all
state
and
federal
levels.
In
the
case
of
Karla
Faye
Tucker,
the
 first
woman
executed
in
Texas
in
more
than
a
hundred
years,
Bush
wrote
to
at
least
two
 constituents
that
he
had
refused
to
grant
a
reprieve
precisely
because
"the
courts,
including
 the
United
States
Supreme
Court,"
had
"reviewed
the
legal
issues
in
this
case"
and
denied
 all
appeals.
But
clemency
is
a
political
act,
not
a
judicial
one.
By
eliminating
"legal
issues"
 from
executive
consideration,
Bush
in
effect
refused
to
address
what
were
often
the
 condemned
person's
strongest
claims.
Indeed,
the
fact
that
courts
have
rejected
a
 defendant's
legal
claims
arguably
places
an
added
burden
on
a
governor—as
the
 conscience
of
the
state
and
the
literal
court
of
last
resort—to
conduct
a
scrupulous
review.
 This
is
especially
true
in
Texas,
where
more
than
a
third
of
executions
in
the
United
States
 since
1976
have
occurred;
where
half
of
all
capital
cases
are
overturned
on
appeal
because
 of
errors
during
trial;
where
seven
innocent
men
have
been
freed
from
death
row,
 including
one
under
Bush;
where,
according
to
The
Dallas
Morning
News,
nearly
a
quarter
 of
the
condemned
were
represented
by
attorneys
who
had
been
disciplined
for
 professional
misconduct;
and
where
30
percent
of
those
executed
under
Bush
between
his
 inauguration
in
1995
and
June
11,
2000,
according
to
the
Chicago
Tribune,
were
 represented
by
attorneys
who
presented
no
mitigating
evidence
or
only
one
witness
during
 the
sentencing
phase
of
the
trial.
Given
this
environment,
Gonzales's
neglect
of
mitigating
 evidence
in
the
clemency‐review
process
is
highly
problematic.
 
 But
the
real
problem
with
citing
thorough
court
review
as
a
standard
for
denying
clemency
 is
that
none
of
the
152
executions
Bush
approved
would
have
landed
on
his
desk
had
the
 cases
not
already
passed
through
all
the
courts.
To
assert—as
Bush
did—that
defendants
 have
"full
access
to
the
courts"
does
not
establish
any
sort
of
guideline
for
ensuring
due
 process;
it
merely
describes
the
judicial
process.
 
 Although
Terry
Washington's
guilt
was
never
seriously
disputed,
in
at
least
two
other
 capital
cases
profound
doubts
about
guilt
were
raised
by
the
defense
but
virtually
ignored
 by
Gonzales.
In
the
case
of
David
Wayne
Stoker,
for
example,
Gonzales
devoted
just
 eighteen
sentences
to
the
extraordinarily
complex
circumstances
of
the
crime,
leaving
out
 essentially
all
the
mitigating
evidence
and
failing
to
address
a
multitude
of
questions
about
 both
the
evidence
against
Stoker
and
his
due‐process
rights.
Ronnie
Thompson,
a
key
state
 witness,
initially
told
the
police,
and
then
the
court,
that
Stoker
had
confessed
to
a
1986
 murder.
But
following
Stoker's
conviction
Thompson
recanted,
explaining
that
he'd
lied
in
 court
because
the
prosecutor
had
threatened
to
bring
a
perjury
charge
against
him
if
he
 didn't
stick
to
his
original
account.
Bush
should
have
been
told
that.
During
Stoker's
trial,
in
 1987,
Thompson's
wife,
Debbie,
left
him
to
move
in
with
Carey
Todd,
the
prosecution's
 chief
witness;
she
got
a
piece
of
the
Crime
Stoppers
reward
that
Todd
received
for
naming
 Stoker.
Gonzales
failed
to
mention
that
drug
and
weapons
charges
against
Todd
were
 dropped
the
very
day
he
testified
against
Stoker;
and
that
Todd
thus
had
an
apparent
 motive
for
setting
him
up.
Gonzales
also
failed
to
mention
that
a
state
investigator,
a
police
 officer,
and
Todd
all
lied
in
court
about
what
Todd
received
for
his
testimony;
that
the
jury
 wasn't
told
about
Todd's
possible
motive
for
framing
Stoker;
and
that
James
Grigson,
a
 psychiatrist
who
testified
that
Stoker
was
a
sociopath
who
would
"absolutely"
be
violent
 again
(thereby
making
him
eligible
for
a
death
sentence),
had
never
even
examined
Stoker.
 Grigson,
whose
expert
testimony
has
helped
send
dozens
of
men
to
death
row,
earning
him
 the
nickname
Dr.
Death,
had
been
expelled
from
the
American
Psychiatric
Association
two
 years
before
the
Stoker
case
was
reviewed
by
Gonzales
and
Bush,
because
his
testimony
 had
repeatedly
been
found
to
be
unethical.
Another
expert
medical
witness
against
Stoker,
 Ralph
Erdmann,
had
relinquished
his
medical
license
in
1994
after
pleading
no
contest
to
 seven
felonies
tied
to
falsified
evidence
and
botched
autopsies.
A
special
prosecutor's
 investigation
of
Erdmann
concluded
that
he
falsified
evidence
in
at
least
thirty
cases,
and
 that
if
"the
prosecution
theory
was
that
death
was
caused
by
a
Martian
death
ray
then
that
 was
what
Dr.
Erdmann
reported."
All
this
information
was
in
the
public
record,
yet
 Gonzales
mentioned
none
of
it
in
his
memorandum
to
Bush.
 
 Stephen
Latimer,
who
represented
Stoker
in
his
clemency
appeal,
told
me
recently
that
he
 received
a
call
from
Gonzales's
office
about
a
week
to
ten
days
before
the
execution,
 advising
him
that
there
would
be
no
reprieve.
The
timing
is
significant,
because
Gonzales's
 execution
summary
is
dated
June
16,
1997,
the
day
of
Stoker's
execution.
If
that
decision
 had
been
made
a
week
or
more
before
Bush
even
read
the
summary,
it
is
fair
to
ask
 whether
Bush
was
actually
in
the
loop
or—as
many
suspected—had
simply
made
clear
to
 both
Gonzales
and
the
BPP
that
he
wasn't
interested
in
commutations.
 
 The
handling
of
Stoker's
clemency
appeal
was
not
unusual.
Consider
the
case
of
Billy
Conn
 Gardner,
whose
death‐penalty
case
was
plagued
by
issues
of
incompetent
counsel,
dubious
 witness
testimony,
and
unheard
mitigating
evidence.
 
 Gonzales's
report
to
Bush
gave
no
sense
of
these
circumstances.
It
matter‐of‐factly
 described
the
robbery
of
a
high
school
cafeteria
in
Dallas,
during
which
Gardner,
wearing
a
 stocking
to
obscure
his
face,
allegedly
shot
and
fatally
wounded
ThelmaRow,
sixty‐four,
a
 cafeteria
worker.
Also
in
the
cafeteria
at
the
time
was
Paula
Sanders,
a
co‐worker
who
had
 told
her
husband,
Melvin,
that
several
thousand
dollars
in
daily
cafeteria
receipts
were
 processed
in
a
back
room
at
the
school.
Melvin,
who
drove
the
getaway
car,
claimed
that
he
 had
persuaded
Gardner
to
participate.
 
 Paula,
who
knew
Gardner,
said
that
she
could
provide
no
description
of
the
assailant,
 because
her
back
was
turned.
Before
Row
died,
however,
she
had
been
able
to
describe
a
 man
with
a
"bony
face
...
and
a
two‐inch
goatee."
Gonzales
didn't
tell
Bush
that
the
state
was
 unable
to
produce
a
single
witness
who
recalled
ever
seeing
Gardner
with
a
goatee,
or
that
 two
witnesses
to
the
shooting—Carolyn
Sims
and
the
school
custodian,
Lester
Matthews— described
a
man
with
reddish‐blond
hair,
whereas
Gardner's
hair
was
black.
Matthews
 nevertheless
positively
identified
Gardner
as
the
killer,
and
Gonzales
accepted
this
 testimony
at
face
value—although
Matthews
didn't
know
Gardner,
admitted
to
having
seen
 the
killer
for
only
three
or
four
seconds,
and
didn't
actually
identify
him
until
his
third
 police
interview,
three
months
after
the
crime.
Also
missing
from
Gonzales's
memo
were
 the
facts
that
only
after
prosecutors
threatened
to
bring
other
charges
against
Melvin
 Sanders
did
he
finger
Gardner
as
the
murderer,
and
that
in
exchange
for
this
testimony
 Sanders
received
complete
immunity
from
prosecution
for
the
murder
and
probation
for
 pending
forgery
and
firearms
charges.
The
state
also
agreed
not
to
prosecute
Paula
 Sanders.
 
 Gonzales
told
Bush
in
his
summary
that
Paula
"testified
that
she
was
unaware
of
the
 robbery
plans";
but
he
neglected
to
mention
that
she
had
received
several
phone
calls
only
 minutes
before
the
robbery
and
shooting,
and
that
according
to
Carolyn
Sims
(whose
name
 is
absent
from
Gonzales's
report),
she
appeared
"nervous
and
upset"
after
taking
these
 calls.
Sims
was
not
deposed
until
years
after
the
trial,
during
Gardner's
habeas
corpus
 appeal.
More
important,
Gardner's
lawyer
never
interviewed
Paula
Sanders
and
met
with
 Gardner
only
once
before
jury
selection,
for
fifteen
minutes,
raising
an
obvious
suggestion
 of
ineffective
counsel—which
Gonzales
also
dismissed
with
no
discussion.
 
 The
case
is
a
disconcerting
tangle
of
speculation
and
uncertainty.
What
Gonzales
should
 have
made
clear
to
Bush
during
the
clemency
review
is
that
the
case
involved
many
 unanswered
and
troubling
questions.
Gardner
was
put
to
death
on
February
16,
1995.
 
 The
Gonzales
memoranda
suggest
that
Gonzales
was
rarely,
if
ever,
prompted
to
delve
 deeply
into
the
cases
he
was
reviewing
for
Bush.
In
his
summary
of
the
case
of
Carl
 Johnson,
for
example,
dated
September
18,
1995,
the
day
before
Johnson's
execution,
 Gonzales
failed
to
mention
that
Johnson's
trial
lawyer
had
literally
slept
through
major
 portions
of
the
jury
selection.
His
memo
on
Irineo
Tristan
Montoya,
dated
June
18,
1997,
 the
day
of
Montoya's
execution,
omits
the
single
most
important
issue
in
the
case:
an
 alleged
violation
of
international
law,
which
had
been
brought
to
Bush's
attention
by,
 among
others,
the
U.S.
Department
of
State.
His
memo
on
Bruce
Edwin
Callins,
dated
May
 21,
1997,
the
day
of
Callins's
execution,
fails
to
note
that
Callins's
appeal
to
the
Supreme
 Court
generated
the
most
famous
death‐penalty
dissent
in
the
past
quarter
century,
written
 by
Justice
Harry
Blackmun,
a
longtime
death‐penalty
supporter.
 
 Karla
Faye
Tucker's
1998
clemency
review
is
one
of
the
few
in
which
any
evidence
exists
of
 a
significant
discussion
between
Bush
and
Gonzales,
and
the
only
instance
in
which
 Gonzales
is
known
to
have
provided
any
documentation
beyond
the
execution
summary.
 Bush
cites
the
Tucker
case
as
evidence
of
his
compassion
and
his
attentiveness
to
the
 process
of
clemency
review.
Gonzales
has
said
that
he
and
Bush
began
discussing
Tucker's
 case
months
before
the
execution.
Bush's
autobiography
devotes
fifteen
pages
to
Tucker.
 He
writes
that
he
anguished
over
his
decision
and
had
difficulty
sleeping
the
night
before
 her
execution,
and
that
signing
off
on
it
"was
one
of
the
hardest
things
I
have
ever
done";
in
 the
moments
leading
up
to
Tucker's
execution
he
"felt
like
a
huge
piece
of
concrete
was
 crushing
me
as
we
waited."
 
 Why
should
Bush
have
been
so
tormented
by
assenting
to
Tucker's
execution?
According
to
 the
Bush
standard
for
clemency,
her
case
wasn't
even
worthy
of
consideration.
Tucker
 didn't
claim
that
she
was
innocent
of
murdering
Jerry
Lynn
Dean
and
Deborah
Thornton
 with
a
three‐foot‐long
pickax
in
1983.
She
said
that
she
had
been
treated
fairly
by
the
 courts
and
deserved
her
punishment.
What
helps
to
explain
Bush's
concern,
of
course,
is
 that
Tucker's
case
was
the
most
highly
publicized
of
any
during
his
tenure
as
governor.
In
 prison
Tucker
had
become
a
born‐again
Christian,
like
Bush.
Her
execution
was
opposed
 by,
among
others,
one
of
Bush's
daughters
and
a
slew
of
otherwise
ardent
death‐penalty
 supporters,
including
Pat
Robertson
and
Jerry
Falwell,
who
became
convinced
that
she
was
 remorseful,
repentant,
and
rehabilitated.
Nevertheless,
dozens
of
Texas
death‐row
inmates
 could
claim
similar
conversion
experiences,
remorse,
and
repentance;
and
dozens
had
 compelling
claims
regarding
innocence
or
due
process.
 
 More
than
anything
else,
the
Tucker
case
illustrates
how
Bush
sought
to
deny
 responsibility
for
executions.
"I
could
not
convert
Karla
Faye
Tucker's
sentence
from
death
 to
life
in
prison
[without
the
BPP],"
Bush
stated,
citing
Texas
law.
Gonzales
made
the
same
 point
in
a
letter
to
the
papal
nuncio
in
Washington,
who
before
the
BPP
made
its
 recommendation
had
written
Bush
on
behalf
of
the
Pope
to
solicit
clemency
for
Tucker:
 "Ms.
Tucker's
sentence
can
only
be
commuted
by
the
Governor
if
the
Texas
Board
of
 Pardons
and
Paroles
recommends
a
commutation
of
sentence."
Of
course,
Bush
did
 intervene
in
the
subsequent
Lucas
case
before
hearing
from
the
BPP.
 
 Gonzales
did
not
tell
the
papal
nuncio
that
even
after
the
BPP
denied
clemency
the
 governor
could
have
invoked
a
thirty‐day
reprieve
to
postpone
this
or
any
other
execution.
 Bush
didn't
use
this
power
because
he
had
no
interest
in
impeding
the
BPP,
which
was
 infamous
for
rubber‐stamping
executions.
In
a
December
1998
district
court
hearing
on
a
 lawsuit
brought
by
the
death‐row
inmate
Joseph
Stanley
Faulder
(in
whose
trial
a
principal
 state
witness
was
promised
more
than
$10,000
by
the
prosecutor
to
testify),
Judge
Sam
 Sparks
concluded,
"It
is
abundantly
clear
the
Texas
clemency
procedure
is
extremely
poor
 and
certainly
minimal."
Sparks
found
that
"none
of
the
members"
of
the
BPP
read
clemency
 petitions
in
their
entirety;
that
"a
flip
of
the
coin
would
be
more
merciful
than
these
votes";
 and
that
the
board
provided
no
rationale
whatsoever
for
its
clemency
recommendations.
 "There
is
nothing,"
Sparks
said
during
the
hearing,
"absolutely
nothing
that
the
Board
of
 Pardons
and
Paroles
does
where
any
member
of
the
public,
including
the
governor,
can
 find
out
why
they
did
this."
 
 Alberto
Gonzales
told
me
in
2000
that
in
his
execution
briefings
he
always
presented
 Governor
Bush
with
a
"detailed
factual
background
of
what
happened,"
along
with
"other
 outstanding
facts
or
unusual
issues."
Yet
a
close
examination
of
the
written
execution
 summaries
he
prepared
for
Bush
certainly
raises
questions
about
the
thoroughness
of
 Gonzales's
approach—and,
ultimately,
given
the
brevity
of
the
summaries
and
the
timing
of
 their
arrival
at
the
governor's
office,
about
the
level
of
attention
Bush
could
possibly
have
 devoted
to
the
clemency
process.
In
his
summaries
of
the
cases
of
Terry
Washington,
David
 Stoker,
and
Billy
Gardner,
Gonzales
did
not
make
Governor
Bush
aware
of
concerns
about
 ineffective
counsel,
essential
mitigating
evidence,
and
even
compelling
claims
of
innocence.
 These
were
all
matters
of
life
or
death,
requiring
in‐depth
explanation
and
discussion,
that
 no
attorney
in
Gonzales's
position
should
leave
out
of
a
written
case
summary
or
save
for
a
 thirty‐minute
oral
briefing—especially
if
both
are
to
be
delivered
on
the
very
day
of
a
 scheduled
execution.
In
a
state
where
the
criminal‐justice
system
has
erred
with
well‐ documented
regularity,
this
was
a
grave
failing.
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This note was uploaded on 07/20/2010 for the course SOC 308 taught by Professor Kurtz during the Summer '07 term at University of Texas at Austin.

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