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would seem to indicate yes, that when people are asked if under any circumstances they would support capital punishment, approximately 75 or 80 percent of the people consistently, in this state and in polls elsewhere around the country, say yes, they support capital punishment. We can deal with why that should not translate into [support for] capital punishment in a moment, but I think the polls tend to show that where you ask people, as Amnesty International in a series of commissioned polls in some of the Southern states did, when you ask people to break that down further, and say “Do you think that if it can be shown that the death penalty doesn’t operate in a fair manner, would you support it? Do you support the execution of juveniles or the mentally retarded or people who haven’t had every possibility of legal appeal?” then you get much lower percentages. So I think that figure can be somewhat misleading. I think that to the extent that people are acquainted . . . with some of the unfairness that is inherent in the system, then that support begins to erode. Observer: Mr. Eads, do you think the public fully understands the way capital punishment is applied in this state? Eads: I do, and I think that Gara gives the public a lot less credit than they’re due. I sure do. I think they understand it. I think they understand that when they say they are in favor of capital punishment that they’re in favor of the death penalty that they mean what they say. I don’t have any difficulty with that, whatsoever. Observer: One of the issues that people bring up on that question is the matter of proper legal representation, and whether there are some people on Death Row who don’t have, as Gara mentioned before, good lawyers to argue their case. Now, Mr. Eads is saying that some of these people are represented by the best lawyers available. I’d like Mr. LaMarche’s response to that. LaMarche: Well let me just briefly sketch out what the situation is with respect to legal representation. As I mentioned earlier, in Texas you have with the exception of I think one county, a court-appointment system. If you’re indigent and you can’t afford to go out and hire Racehorse Haynes or some other well-known and able criminal defense attorney, what’s going to happen is, they’re going to appoint [for] you somebody doWn at the courthouse. Very often it has been the case in Texas and in other places that that person is an inexperienced lawyer, that person doesn’t know how to raise all the right issues at your trial; there have been some fairly glaring errors. Justice Thurgood Marshall of the Supreme Court has been moved to point out that this is almost at the level of a scandal with respect to death penalty representation around the country. What happens is that person represents you often inadequately, you’re not paying that person and you can’t get the quality of representation that some of our notorious or well-off murderers in Texas have been able to obtain, so you end up on Death Row in the first place because you didn’t have a very good lawyer. Then, you have an automatic appeal to the Court of Criminal Appeals in this state, “We’re caught up in a syndrome in which we’re wedded to the death penalty we’re almost afraid not to have it.” which almost always reaffirms your conviction, and then you go into the postconviction proceeding which most of the time is where you’re going to expose constitutional infirmities in your trial and defects in your trial the most important stage of the game, where if you’re going to save your life, that’s where it’s going to be saved. And it is at that point in Texas that you don’t have any right any longer to a court-appointed attorney. You’re on your own. Either your family has to go out and hire somebody, which is very difficult and many of these people are estranged from their families, or have none in the first place, or, a volunteer has to do it. And we reached a point in this state a year or two ago, with well over two hundred people on Death Row where most of them had had no contact with an attorney for some time. And what was routinely happening was that people were getting execution dates set and no lawyer to accompany them in the final stages of the process. . . . THE REPRESENTATION CRISIS Observer: Mr. Eads, I believe that one of the questions raised by Gara LaMarche has to do with the class of people that ends up on Death Row in this society and those who end up being executed. Do you recognize a difference in the people that end up on Death Row and the people that do not in terms of the representation crisis? Eads: Let me take it in two parts. With regard to those people who are on Death Row currently, that have gone through our system and that have been assessed the death penalty by a jury, yes, I think those people in their own way are different, certainly, from the majority of citizens. I think that they are the most violent and have committed the worst possible crimes. With regard to the legal representation that those defendants receive at least at the trial court level, in the cases that I personally have been associated with, they have been represented by the very best criminal defense lawyers which we certainly have on a local basis. I must respond to Gara and say I can not speak for every single criminal defendant who is currently on Death Row, all 265 of them, and I can’t categorize whether in the Civil Liberties Union’s opinion some had good lawyers and some didn’t. I can only speak to those death penalty cases which I personally have been involved in. And in each one of those cases they’ve had the very best defense lawyers that our local system can offer. KLBJ: Gara . . . what does law enforcement want to put across to the public or the criminal in having a death penalty here? LaMarche: Well I think that we’re caught up in a syndrome in this society in which we’re wedded to the death penalty we’re almost afraid not to have it because we think that somehow it’s some kind of a necessary element of the . criminal justice system. . . . If we could make a substitution in this state as some of us would like to do of a life without parole system for the death penalty, I think we’d all be a lot better off and I think you’d find a lot of that 80 percent majority would be willing to go along with that. But we’re caught up in thinking that we need the death penalty. . . . Texas is the heaviest user in the nation of the death penalty; it also has the highest murder rate. KLBJ: Is it a deterrent? How does the state of Texas use it and why doesn’t it keep people from going out and killing each other? Eads: I don’t know that it deters others; I like to think that it does. I know that it deters that particular defendant from committing that type of crime ever again. . . . With regard to its overall deterrent effect, _ I think you’ll find statistics both ways. I have a hard time believing it may have an overall deterrent effect to others. But at the same time I feel that if we said, well, we don’t have the death penalty, we just have life imprisonment, that doesn’t in and of itself deter those who would commit those offenses. It’s almost [as if] to say well, if the punishment doesn’t deter, do away with the punishment. It is that philosophy and that concern that bothers me as much as any. Observer: Both participants talked about heinous crimes as it relates to the death penalty. A question for Gara LaMarche: are there no crimes imaginable to you that deserve the death penalty? LaMarche: There are plenty of crimes imaginable to me that somebody could say are the kinds of crimes that somebody ought to pay with their life for. . . . The problem THE TEXAS OBSERVER 11