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Citizens’ Rights; The Death Penalty Austin The first thorough version of the state’s criminal code includes many new protections for the accused protections that have enraged the Dallas district attorney’s office. But the code was stripped of the Eckhardt amendment to prohibit jury challenges for cause on the basis of scruples against capital punishment, and the House refused to take up the death penalty issue directly. The code owes more to the complex personality and Mind of Sen. Dorsey Hardeman of San Angelo, its principal author, than to any other legislator. No stereotype of the conservative can encompass Hardeman’s effects on the code. It contains many safeguards for the accused because of him; the House-approved restriction on capital punishment was struck out mainly because of him; if he had had his way, which he did not, Texas law would have prohibited officials from telling the press anything that would endanger defendants’ right to fair trials. The elusiveness of the man’s values and of the man himself can be characterized by a few remarks he made as the legislature, under severe pressures, wrestled with fundamental questions that the code inevitably raised. Defending a provision requiring law officers to take an arrested person before a magistrate . “immediately,” Hardeman said, “It does mean this, that they can’t take and beat hell out of ’em and get a confession.” A member of the House-Senate conference committee on the code said that the word from Hardeman was, take out the Eckhardt amendment on capital punishment, and the House could write its own bill, but leave it in and Hardernan would oppose the entire code. . On the Senate floor Hardeman spoke contemptuously of “a lot of maudlin statements from a lot of sob sisters about the horrors of an execution. I’ve defended people charged with some of the most heinous crimes. People forget the crimes.” Speaking of the Ruby case, Hardeman said, “I’da defended him if I’d been asked to. But I wouldn’t have followed the BelliTonahill theory. I’d have pled him guilty and asked for mercy. I don’t think any jury would have given him more than five years. I was in favor of him killin’ Lee Oswald myself, but I think he was entitled to a fair defense.” When Hardeman said that lastHardeman, the senator who was having more to do with the codification of the state’s criminal laws than any other Texanreporters in the Senate were so shocked they compared notes to be sure they had not heard him wrong. They had not. THE NEW CODE sets forth these, among many other legal requirements : An arrested person must be taken before a magistrate “immediately.” Defendants are guaranteed the right to examining trials. Lawyers for the defense can take depositions from witnesses, including the prosecutor’s. The defendant can examine all the evidence the police have before the trial. Evidence that was obtained by illegal search and seizure can be thrown out before the trial begins. Judges’ have more leeway to release an accused person on personal recognizance if he cannot pay the bail bond. Judges must appoint legal counsel for a poor defendant in all cases, including misdemeanor cases, if they involve a possible jail sentence. In capital cases, the prosecution must give 15 days’ notice that the death penalty will be sought. Justice and corporation courts are required to follow the rules of evidence and procedure in the code. Courts of inquiry are elevated to the district court level and defendants at these courts are guaranteed counsel, cross-examination of witnesses, and the right to bring witnesses in defense. Before a defendant is sentenced, the judge or jury is given, the prior record, reputation, and character of the defendant. The defendant can be paroled after serving . one-fourth of his sentence, instead of the present one-third. The prosecutors in Dallas, which is the prosecutingest big city in Texas, launched a drive against the code just less than two weeks before the session ended. Dist. Atty. Henry Wade said the Eckhardt amendment on jury selection would in effect abolish the death penalty. The requirement about taking an arrested man to a magistrate would mean, Wade said, that “In the wee hours of the morning the police could do little while crime goes on.” Permitting a defendant to be tried before a judge if he so wishes, \(as the new code who might be favorably disposed toward him, Wade said. Bill Alexander, Wade’s first assistant, predicted “an increase in such violent crimes as murder, robbery, and rape.” The legislators “should represent the good people, not the thieves,” but the code “would put law enforcement out of business,” he said. Alexander came to Austin and worked the members against the code, leaving Speaker Ben Barnes a memo telling “why we think this bill would snap legal handcuffs on district attorneys and law enforcement officers.” Alexander contended that the requirement that a prisoner be taken before a magistrate immediately would block police from questioning many prisoners. With the Dallas News calling for a gubernatorial veto if the code was passed without such changes as Wade and Alexander wanted, the deeper issues of the rights of the accused versus the problems of lawmen and the rights of the potential victims of crime had been joined. Oddly, however, the conference committee report on the code diverted attention from these questions toward the capital punishment dispute and a new one, caused by new language in the final bill to limit what lawmen could tell reporters about a crime. Rep. Charles Whitfield, Houston, says he was told that if he insisted on getting a House vote on his bill to abolish capital punishment, the Eckhardt amendment on jury selection in capital cases would be dead. He resented this, but he decided to run with his bill, anyway. Upon his motion to take the bill up, Rep. Jim Nugent, Kerrville, waved before the House lurid, shocking photographs of victims of awful crimes. Whitfield tried to get the back mike to challenge this event, but a partisan of the death penalty stolidly blocked him from it, causing Eckhardt to explode angrily, “For God’s sake, give the man the mike.” Whitfield rushed down to the front and managed to say, through the front mike, that obviously the criminals whose victims Nugent’s pictures showed were insane and to ask about the mental condition of a member of the House who would display such pictures. Nugent furiously objected to this remark by “the despicable Mr. Whitfield.” Order was restored, and the House refused, 72-62, to take up the bill, as it had been expected to, anyway. Asked later by the Observer to describe the photographs he had. displayed, Nugent said, “One shows a baby girl who was raped and murdered. One shows a baby boy who was murdered. One shows a man a blow torch was used on. One shows a man who was shot in the chest four places” [Nugent simulated a gun with his hand and lightly poked the reporter four places in his chest, as at the points of a square] “in a pattern. Another shows a man with the back of his head cut off. In color.” Later Rep. Maurice Pipkin, Brownsville, sought to instruct the conferees to keep the Eckhardt amendment on jury selection in the code. Rep. Dudley Mann, El Paso, chairman of the relevant committee and the House sponsor of the code, said that the State Bar had decided it was opposed to the Eckhardt amendment and would withdraw its support of the code if it stayed in. He quoted Judge W. A. Morrison of the Court of Criminal Appeals as having stated it would abolish capital punishment. “We have fought this thing tooth and nail all session,” Mann said of the issue; now it had to be let drop, or “it will kill the code.” By 83-62 the House refused Pipkin, and the issue was let go. THE FINAL CODE surprised shocked might be the wordsome news-. men in that it proposed to prohibit lawmen and states’ attorneys from making public, June 11, 1965 15