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On Dec. 1, 1981, the Texas Court of Criminal Appeals turned down a statelevel writ of habeas corpus, and Brooks’ attorneys immediately filed two separate federal habeas corpus writs. The federal writs were turned down in federal district court on October 24 of this year by U.S. District Judge David 0. Belew, Jr., of Fort Worth. Defense lawyers filed in federal district court a request for a new trial. On Nov. 5, 1982. Judge Howard Fender in Fort Worth set December 7 as Brooks’ execution date. On Nov. 9, Judge Belew denied both the motion for a new trial and a stay pending appeal. Brooks’ attorney Danny Burns then filed an appeal with the Fifth Circuit Court requesting a stay pending an appeal. Attorney General Mark White immediately filed a motion in opposition and requested oral arguments in opposition to a stay. From that point, legal proceedings revolved around procedural questions instead of the questions of sentencing disparity or the failure of Brooks’ original lawyers to call character witnesses on the defendant’s behalf. \(Only Judge Belew at 9:30 p.m. on Monday night after the Fifth Circuit Court, the Texas Court of Criminal Appeals, and the Supreme Court had declined to intervene agreed to hear a newly filed writ of habeas On December 2, Brooks’s new attorney Eric Freedman, after digesting 3,000 pages of background material over Thanksgiving weekend, asked for a rehearing before the Fifth Circuit. The answer came during the Monday morning Pardons and Paroles hearing. IT IS NOW early afternoon. After -meeting with Terral Smith, Freedman, Duncan, and Schwarzschild return to the cluttered, comfortably shabby Texas Civil Liberties Union offices. Freedman is soon on the phone again with the governor’s office, but none of the governor’s advisors will let him get to Gov. Clements’ himself. One even questions Freedman’s right to attend the Pardons and Paroles hearing set for 4 in the afternoon. Freedman finally badgers Hilary Doran, one of Clements’ legal assistants, into meeting with him; David Herndon, the governor’s chief counsel, will also be there. Freedman goes to the meeting hoping to persuade the two men to allow him to meet with the governor, who is allowed by state law to issue a stay even without a recommendation from the parole board. He returns thinking he might have persuaded Doran, but not Herndon. They will get back to him, Doran has told him. At 4, Duncan and Schwarzschild return to the Stephen F. Austin State Of fice Building for the meeting of the Board of Pardons and Paroles. The board will apparently make a decision even though the Supreme Court has still not yet ruled. Freedman stays at the office awaiting a call from the governor. The board’s decision, though not unexpected, is not good. Connie Jackson’s request for a reprieve is voted down; George Killinger’s motion for a denial of the reprieve passes 2-1. Board Chairman Ruben Torres was in a difficult position. Duncan muses later. His position, subject to appointment by the governor, runs out on January 31 two weeks after Mark White takes office. “Had the 60-day reprieve been granted,” “Every government that wants to kill people always cites beneficial social reasons. . . .” Duncan says, “it would have dumped a hot potato into the lap of Mark White about the third week into his administration.” \(Duncan said later he felt getting a reprieve out of Gov. Clements was a long shot, but that he thought Clements might relish the opportunity to pass “the hot potato When Duncan and Schwarzschild get back to the TCLU offices they are joined by Jack V. Strickland, the prosecutor who convinced a Fort Worth jury to condemn Charlie Brooks, Jr., to death. Duncan hopes Strickland, now in private practice in Fort Worth, will be able to help the erstwhile Freedman get in to see the governor. On Friday, Strickland had told the Board of Pardons and Paroles that his conscience compelled him to argue against Brooks’ execution, even though he supports capital punishment, because Woodie Loudres had pleabargained for a forty-year sentence and could go free in six years. Former Attorney General Waggoner Carr, representing Texas Trial Lawyers, also testified in favor of a reprieve. “I spent a lot of time talking with people and doing some soul searching last weekend trying to determine for myself if this disparity {in sentences] was in some way justified,” Strickland told reporters. “I came to the conclusion it was not.” In the affidavit filed on Friday, Strickland said prosecutors in Brooks’ trial never determined whether Brooks or Loudres fired the only bullet found in Gregory’s body. “No fact surrounding the offense proves that one defendant was more culpable than the other,” Strickland said. “Only a single shot was fired, only a single bullet entered the body of the victim, and to this day, the state of Texas does not know which defendant fired it. ”* Strickland waits out the afternoon conferring with Freedman and Duncan and taking calls from a researcher for ABC’s “Good Morning America. Ironically, it is Strickland who has made Freedman’s job difficult. By doing a good job as prosecutor in the Brooks case, Strickland left none of the technical errors that Freedman could have exploited. At 4:30, Terral Smith calls to say he’s gotten nowhere with the governor’s people. At 4:47, Henry Schwarzschild tells another of the innumerable phone callers, “Things are .going badly. The Supreme Court is still in session, and the governor says he will wait for the Supreme Court to speak. Then he will issue a press release on the matter. He looks up from the desk piled high with papers where for the better part of four days he has been sitting and recalls a quotation from Justice Holmes that, to him, characterizes the Board of Pardons and Paroles: . . I could make a stronger backbone out of a banana.” Schwarzschild has been through this before with Gary Gilmore in 1977, John Spenkelink in 1979, Jesse Bishop in 1979, Steven Judy in 1981, Frank J. Coppola last August, with several others over the past six years whose death penalties were stayed. Associated with the ACLU since 1962, he has, since 1976, directed the ACLU Capital Punishment Project. “The ACLU, oddly enough, came to a policy position of opposing the death penalty fundamentally as a violation of the Eighth Amendment to the Constitution the Constitution obviously being the benchmark for what the ACLU does very late in the game,” he had explained a few days earlier. \(Founded in 1920, the ACLU adopted its policy on the schild says, in what he calls “these terribly demanding, complicated crisismanagement situations,” is to see that the most capable lawyers available are brought into the case and “to make the state and the public aware not by unseemly things but by decent things that they are doing something that’s ter *An affidavit filed by Tarrant County District Attorney Tim Curry implies that Curry has evidence that Brooks fired the fatal shot, although Curry has released no such evidence. “Loudres has been in the Tarrant County Jail since September. 1980, John Duncan says. “and the only two people who know what’s happened are Loudres and Brooks. Loudres has every incentive to accuse Brooks. The only affidavit that should mean anything is one from Loudres, and he’s not talking. THE TEXAS OBSERVER 11