BY PATRICK TIMMONS
Executed on a Technicality: Lethal Injustice on America’s Death Row By David R. Dow Beacon Press 256 pages, $24.95 ohnny Joe Martinez did not walk to his execution on May 22, 2002. The prison guards at the Walls Unit in Huntsville had to carry him from a holding cell to the death chamber. Earlier that day he refused to dress himself and had to be dressed by guards. He refused to walk to the vehicle that would take him from death row in the Polunsky Unit in Livingston to the death house in Huntsville. “I know that I am fixing to die,” he said while strapped onto the lethal injection gurney, “but not for my mistakes. My trial lawyers—they are the ones that are killing me.” As he died, Martinez instructed his final appeals lawyer, David Dow, to let everyone know what happened. A professor at the University of Houston Law Center and Director of the Texas Innocence Network, Dow followed through with his client’s last request. As he writes in Executed on a Technicality: Lethal Injustice on America’s Death Row, the arbitrariness of Martinez’s death “was like being struck by lightning.” But Dow has written far more than a tight retelling of Martinez’s story. He has also written an indictment of how unfair America’s death penalty system has become. How courts have “come to favor speed and finality over fairness and principle.” To make his point, Dow carefully walks us through the interlocking tiers of contemporary American capital litigation: the capital murder trial and direct appeal to the state, followed by the state habeas proceeding to review for constitutional errors, and the federal habeas application that leads all the way to the U.S. Supreme Court. Given the restrictions that Congress placed on federal habeas law in 1996, if defense lawyers fail their client in the earlier stages, the errors are fatal. With the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996, tough-on-crime politicians instituted procedural rules preventing federal courts from scrutinizing constitutional violations. That’s what happened to Martinez. As the final appeals attorney, Dow had the literally dead-end task of representing a guilty client who, once his trial lawyer failed him, never received a modicum of fairness from the courts. Martinez readily admitted that on July 15, 1993, when he was drunk and high, he killed Clay Peterson in Corpus Christi. Later, when he viewed the security camera recording of his actions, Martinez could not explain what had come over him, why he had repeatedly stabbed the young convenience store clerk. The scene appalled him. He was expecting to receive a harsh sentence, but also expected that the jurors who deliberated his fate would hear about his troubled life. His father had abandoned the family, his mother drank regularly, his stepfather physically abused her—she suffered a miscarriage as a result of the beatings. His stepfather was murdered outside a bar, his mother became addicted to and began selling heroin—all of this happened before Johnny Joe Martinez was 10 years old. But Martinez’s trial lawyer did not bother to investigate his background. Dow rues that the defense “takes up fewer than forty pages of a trial record that is more than a thousand pages long.” In 1976, when the U.S. Supreme Court reinstated the death penalty in Gregg v. Georgia after a four-year hiatus, it held that a jury must review the “circumstances of the particular crime” and the “attributes of the individual offender.” To justify Johnny Joe Martinez’s execution, the State of Texas had to prove not only that the crime was extreme but also that he might do it again. The videotape of the brutal crime satisfied the first requirement. But could the State predict future dangerousness? Martinez did not have a criminal record and he had repeatedly expressed remorse. As Dow demonstrates, Texas courts had often spared offenders with a violent criminal past, who were guilty of far worse murders, and who remained unrepentant. But Martinez was sentenced to death because his trial lawyer offered scant evidence in the punishment phase of the trial. His state habeas attorney then compounded the error. On direct appeal from the trial court, the Texas Court of Criminal Appeals (the state’s highest court for criminal matters) almost found in Martinez’s favor. In the slimmest of majorities, five of the nine judges held that Martinez posed a threat to society. The rest believed that the State had not met its burden of proof. (And at least one of them was concerned by the perfunctory brief filed by the defense attorney.) Martinez’s sentence hung on a single vote. Had the jury heard about his troubled background, and had this evidence found its way to the Court of Criminal Appeals, one more judge might have voted against the death sentence. Dow was particularly troubled by the behavior of the state habeas lawyer, and quotes from a series of letters Martinez wrote from death row. In each one—there were more than a dozen—Martinez pleads with the attorney to present mitigating evidence. He was enough of a jailhouse lawyer to know that if the attorney did not present such evidence at this stage, the federal courts would then be procedurally barred from hearing these claims. The attorney never responded. Dow concludes that Martinez died because he was unable to afford adequate counsel. Dow’s purpose is to expose the systematic unfairness of America’s death row—so he focuses on a number of poor inmates who could not benefit from well-trained, experienced counsel. Texas cases comprise the central evidence: Carl Johnson (executed), César Fierro (on death row, possibly innocent and now more than likely insane), Anthony Graves (on death row, see extract below), Randall Dale Adams (exonerated because of public outrage precipitated by Errol Morris’ movie The Thin Blue Line), and Gary Graham aka Shaka Sankofa (probably innocent and executed, a direct result of his trial lawyer’s failure to conduct even a minimal investigation of the facts of the case). In Texas, defense attorneys only have to be competent, which, as Dow points out, means “having a pulse and a bar card.” As a result, “major constitutional violations in death penalty cases. . . go uncorrected.” He also points out that once a sentence has been decided and confirmed by state courts, federal courts are rarely concerned with later evidence proving actual innocence. t’s an old adage among death penalty supporters that the condemned crow innocence. They don’t. But the only people who know this to be a myth are those who know inmates. Like Graham, some claim innocence, perhaps because they really are innocent. Others, like Martinez, readily admit their guilt and know the law well enough to recognize that their punishment is unfair. Dow wants us to be concerned with both sorts of cases. He understands why America’s death penalty debate now turns on the issue of innocence. But he’s more worried about whether the system is fair. When he first started representing death row inmates, he believed in the death penalty. But as he moved deeper into the experience—what he describes as understanding the difference between knowing an inmate’s name and knowing the inmate himself—he started to wonder about what the system actually does to the dignity of human beings. Human beings such as Johnny Joe Martinez, whose “only victory” in years of appearing before state and federal courts, was the simple act of non-violent protest on his execution day. Or César Fierro, who after two decades of solitary confinement, jabbers somewhat incoherently and refuses to cooperate with his defense attorneys. According to Dow these offenses to human dignity demonstrate that the current debate over innocence is a “sideshow.” Coming from the director of an innocence project, this provocative argument directly confronts Sister Helen Prejean’s recent attempt to draw attention to cases where innocent people may have been executed (see “Stopping the Death Machine,” December, 3, 2004). Dow doesn’t dispute the importance of innocence: The reason we react as we do when confronted with the execution of an innocent man is we have done something we have promised not to do. The biblical rule of lex taliones, often cited (albeit erroneously) by death penalty supporters, specifies an eye for an eye. Unless the defendant kills, we as a society are not permitted to take his life. In the case of war and highway construction, we say that we will try to avoid civilian casualties. We say we will try to avoid the loss of innocent lives. But road repair and warfare are not entirely predictable, and we can make no guarantees. That is not what we as a society say to criminal defendants. We say something quite different: We say that we will punish them for what they did, and only for what they did. … We tell suspected wrongdoers that in accordance with this principle, we will impose punishment only when we can prove beyond a reasonable doubt that they did something unlawful. … When we execute someone who has committed no crime … we are breaking the social compact. Instead he wants to make sure that we fully understand the relationship between systematic injustice and contemporary developments in capital legal procedures. Between 1976 and 1996, state and federal courts overturned 50 percent of death sentences. This startling statistic means that for two decades, half of all death sentences contained serious constitutional violations that federal courts remedied by preventing execution. But with the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996, Congress directed federal courts to apply procedural constraints, thereby preventing an offender from proving constitutional violations. Executed on a Technicality is required reading for all those who take seriously the social compact, which is meant to be the bedrock of responsible citizenship. Which juror would consent to legitimizing such mistreatment of a fellow citizen? Those who live in death penalty states might one day face the reality of deciding if a fellow human being should live or die. Dow raises the question: Should jurors ever have to choose between life and death given the system’s patent unfairness, even to the guilty? Patrick Timmons is Assistant Professor of Latin American History at Augusta State University, Georgia. He is a 2005 Mexico-North Transnationalism Fellow and a contributor to the edited volume, The Cultural Lives of Capital Punishment, forthcoming from Stanford University Press. _______________________________________________________________________________ THE IMPORTANCE OF FINALITY | BY DAVID DOW
nthony Graves is in prison for stabbing and bludgeoning five people to death with a mail-order knife and hammer. He did not have a weapon capable of inflicting the lethal wounds. He did not have any reason to kill anyone in the house, much less five people. And he was at his own house at the time of the murders. Yet he awaits execution on Texas’s death row because Robert Carter told a lie and said Graves had helped him. The lack of any physical evidence against Graves, the fact that Carter repeatedly recanted, and even the sheer implausibility of the state’s case no longer matter. When a defendant faces the death penalty, the burden is on the state to prove beyond a reasonable doubt that the defendant committed murder and deserves to be sentenced to death. Once the defendant is convicted and sent to death row, however, it is not enough to make the state’s case disappear. He cannot get off unless he can prove that no reasonable juror would have voted to convict him. In other words, the burden of proof that a convicted death row inmate must sustain is substantially heavier than the burden of proof that the state must sustain at the trial. The implication of this asymmetry should be obvious: It is easier in our system to convict someone who did not commit a crime than to have that conviction set aside once we have evidence of the person’s innocence. Anthony Graves is a soft-spoken man who talks to me with exaggerated politeness. The Texas Innocence Network, which I direct, has been working with Graves’s lawyers to establish his innocence. The dogged team of students is led by Nicole Casarez, a lawyer and journalism professor. They believe that the police and prosecutors lied and cheated. They are convinced that Graves is an innocent man. I tell Graves what he already knows; that the students and Professor Casarez are turning every stone, but there is not going to be any DNA evidence. The investigators are not going to find the person who committed the crime and persuade him to confess, because that person—Robert Carter—already has confessed. There is no drama left. I tell Graves that his case is not really about whether he committed the crime. He nods as if he understands, as if he understands the limitations that AEDPA places on the court, but I doubt he actually does, and in a moment, his questions will prove it. (Ninety percent of law school graduates, I would guess, do not understand AEDPA.) I tell Graves that we will do everything we can to establish his innocence, and he says he knows that, but I tell him that no matter what we find, it might not matter. It might not get us back into court. It might not impel a court to take another look at his case. He asks why, and I tell him the answer, which is a sterile explanation of federal law. I start to tell him about the idea of finality, that Congress and the federal courts want cases to end at a certain point. He looks at me quizzically, nodding slightly, but with a perplexed look in his eyes. How can it not matter that he is innocent? I do not even try to answer him. I just put my hand on the glass partition between us—which is how I shake hands with my clients—and tell him I will be back soon. From Executed on a Technicality: Lethal Injustice on America’s Death Row by David Dow. The author will be at BookPeople in Austin on May 24.