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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 highfound 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 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 dozenMartinez 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 rowso he focuses on a number of poor inmates who could not benefit from well-trained, experienced counsel. Texas cases comprise the central eviFierro \(on death row, possibly innoAnthony Graves \(on death row, see \(exonerated because of public outrage precipitated by Errol Morris’ movie The and Gary Graham aka Shaka Sankofa \(probably innocent and executed, a direct result of his trial lawyer’s failure to conduct even a minimal 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 continued on page 27 THE IMPORTANCE OF FINALITY I BY DAVID DOW Anthony 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 con vinced 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 personRobert 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 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 uswhich is how I shake hands with my clientsand 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. MAY 13, 2005 THE TEXAS OBSERVER 23 a