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Austin execution vigil “After taking six and a half hours to reach a decision,” John Duncan fumes, “I don’t know what’s so urgent about killing a guy.” He tells another caller, “I think we’re gonna throw a paper at everything that moves till midnight. I don’t see how anything we do can be called frivolous when a fellow’s life is at stake.” He tells yet another caller that “Burger and Rehnquist have been looking for an opportunity to get all procedure out of capital punishment cases, and this is probably it.” Hugh Lowe rushes his request for a stay over to the Court of Criminal Appeals. The request begins, “Anticipating that you will not want to hear oral arguments. . . ” Freedman, holed up in his tiny office, demands that Duncan send reporters, perched like vultures waiting for the end, out of the main office. “He’s a big-city lawyer,” Duncan explains apologetically. “He’s afraid someone’s going to steal what he’s trying to do.” Duncan looks dog-tired. His face is red and mottled, a sign, his wife Becky Beaver says, that his blood pressure is high. Behind the closed door of the main office, attorney Lowe is dictating to TCLU Assistant Director Dorothy Browne an additional memorandum to the Court of Criminal Appeals. Lowe argues that the forty-year sentence given to Woodie Loudres “was not merely newly discovered or newly available. It was new. . . . If it had been in existence at the time of the punishment,” he contends, “the evidence would probably have brought about a different result.” Lowe rushes the brief over to the state Supreme Court Building a few blocks away, Browne collating on the way. A clerk rushes it upstairs. In less than ten minutes he returns with a one-sentence message: The stay is denied. At 9:55, the attorney general is served with habeas papers in the court of Judge Belew, the federal judge in Fort Worth who denied the original habeas writs back in October. A petition for writ of habeas corpus has also been filed in Criminal District Court No. 2, Tarrant County. Frank Sullivan, Allan Butcher Jack Strickland are waiting in Fort Worth . to appear before Judge Belew. “That is the last shot, I think,” John Duncan says. Throughout the day Duncan has been blaming Attorney General White for opposing Brooks’ request for a stay. “All of this is coming about because of Mark White’s hurry-up politics,” he had told a reporter earlier. “John Hill had a policy of not opposing any stays of execution while you went through the nine-step pro cess. After the Supreme Court said no, then you set an execution date, and the guy has had a fair go at it. I am convinced that Mark White saw the advantage of being able to attain political visibility by pushing death penalty cases.” Duncan objected to White’s efforts to seek what is called “expediting process” in the Brooks case. “The most severe thing the judicial process can do to a person in this country and Mark White has singled this out for expediting process,” he said,* AT 11, JUDGE Belew, after conducting an hour and a half habeas hearing by phone, denies the stay. At 11:35 Frank Sullivan calls to report that after a 30-minute argument with Judge Alvin Rubin of the Fifth Circuit Court in New Orleans, the judge has finally agreed to reconvene the panel. \(A few minutes before midnight, he called again to say the Fifth Circuit had again “I think that tells the story,” Henry Schwarzschild says. He walks wearily out of the office and heads to the Capitol for a candlelight vigil. A couple of days earlier, Schwarzschild had talked about the execution *On Wednesday. December 8, Duncan was quoted in the Dallas Times Herald as saying that White’s legal position seemed to be that criminal defendants “have no rights to a full briefing prior to us killing you. White called the charges “patently ridiculous” and accused Brooks’ attorney of deliberately delaying his appeals so courts would be forced to act in the final hours before the execution. “pipeline” now opening up in this country. We are now sentencing people to death at a rate of about 200 a year, he said, and the rate is rising. California, he said, sentences to death about forty a year; at that rate it will soon overtake the southern states \(Florida, Texas, in 1937 with 199, “three a week,” Schwarzschild pointed out. “We’ll soon be executing more than that, and we’ll still be building up a backlog as well.” How will we react, Schwarzschild wonders. Will executions become commonplace? Will there be a public outcry? “Something has to give,” he says. “For the life of me I do not have any notion what it is that’s going to give. The Supreme Court is not about to become more liberal; there is a general rebarbarousness of the society at the moment nothing seems to be making the culture more generous, more relaxed, more humane, more thoughtful.” At 11:30, Eric Freedman is still holed up in the cramped. white-tiled office, phone to his ear, trying to get through to the governor. Only once during the long night did his fatigue and frustration seem to stagger him. At one point he wandered out into the hall and said to no one in particular. “Charlie Brooks is going to die because he doesn’t have a good lawyer.” Henry Schwarzschild heard him, and like a stern father, he delivered a reprimand. “Don’t even think that,” he said. “You know it isn’t true.” At midnight, Freedman is still on the phone. He doesn’t get through. At 12:16, a reporter with a call into Huntsville tells him: “It’s done.” 111 THE TEXAS OBSERVER 13