Wed Jun 19 2013

Molly Ivins

Texans do not have full access to the courts
June 2, 2000

AUSTIN -- Well, isn't that special? The governor has granted a 30-day stay to a man on death row so we can figure out from DNA evidence whether the guy should be on Death Row. He may well be, but it'll be nice to be certain for a change.

It took Bush only 131 executions to find a case where he thought there might be some doubt about the matter. No, I take that back. He did once grant a pardon: He had to. That was the memorable case of Henry Lee Lucas, the serial liar, who confessed to 150 murders before our brighter law-enforcement minds started to wonder if he was telling the truth.

The impeccable Texas criminal justice system -- about which the governor is so certain he has repeatedly said he has never had a shred a doubt about any of the 131 executions on his watch -- managed to convict Lucas of a murder that rather demonstrably occurred while Lucas was in another state entirely. Ooops.

It is particularly entertaining to watch Bush on national television solemnly explaining that those on Texas' Death Row have "full access to the courts."

They do? Then why did the court of criminal appeals throw out Ricky McGinn's request for new DNA testing two days before his scheduled execution? Why does it take a 30-day stay from the governor to get DNA evidence examined? Because, may I suggest, those on Death Row in Texas do NOT have full access to the courts, or anything like it.

When the Texas Criminal Defense Lawyers Association started its own Innocence Project -- modeled after Barry Scheck's effective New York legal operation that has now proved the innocence of almost 100 men and women, some on Death Row -- two people whose names you may recall from the past were present, Randall Dale Adams and Clarence Brandly. Neither one of whom would be alive today if the current rules limiting access to the courts had been effect when their painfully questionable convictions were finally overturned.

To my mind, the McGinn case is not nearly as questionable as another execution that took place on Wednesday that may well have destroyed the last chance of another man who may be innocent. Read this one and see what you think.

A prison guard named Robert Carter ran amok in 1992 in Somerville, stabbing, shooting and burning six family members, including his 4-year-old son from a previous relationship. At one point, Carter claimed that Anthony Graves, a cousin of his wife, did most of the killing that night. Carter attempted to retract his charge against Graves early on, but wound up testifying against him after receiving his own death sentence in 1994.

Carter insisted in a deposition given last month that he had tried to exonerate Graves in the past and that the reason he lied was because authorities pressured him to name an accomplice and threatened to prosecute his wife, Theresa. There is a videotape of him making the same statement in 1997. Carter wrote Graves' lawyer at least nine times over the years telling of Graves' innocence.

At his execution last week, six members of the victims' family were present. Carter, strapped to the gurney, said: "I'm sorry for all the pain I've caused your family. It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court."

Graves has two witnesses that could testify to his location the night of the incident: his brother, Arthur, and girlfriend, Yolanda Mathis.

Arthur testified at the trial. But Mathis, the only true alibi, said she was afraid to testify because she felt she had been threatened with prosecution. During the trial, she literally went running from the courthouse just before she was to testify.

The forensic evidence against Graves is "ridiculous trash," according to his appeals lawyer, Roy Greenwood. But since the testimony of an accomplice is so powerful, said Greenwood, without Carter there to retract in person, Graves' chances are less.

The court of appeals, which is rapidly becoming a misnomer, did grant a hearing in the case but did not consider Carter's recantation. The matter is now in a federal court in Galveston.

But we're coming right along here in Texas on the criminal justice front.

Many people thought that when two of three defendants in the Jasper dragging case were given the death penalty it was first time ever in Texas white people had been given death for killing a black. Actually, those were the second and third times that has happened. And if that didn't make you proud to be a Texan, what would?

Most of us have gotten into the habit of thinking people on Death Row can get endless appeals and writs, and that you practically have to be proved guilty 70 times over before the state can execute. This has not been true for some time: Both state and federal law, and court decisions, have made it dramatically harder to prove actual innocence.

In the famous Herrera case out of Texas, the Supreme Court actually held that innocence was no reason to stop an execution. It is terrifyingly easy to misconvict: Juries are still impressed by notoriously unreliable eyewitness evidence and even testimony on forensic evidence can be highly questionable.

The infamous "Dr. Death," whose testimony was so suspect that many cases had to be reversed, has been succeeded by some "Dr. Negligence" type witnesses favored by prosecutors.

Molly Ivins is a columnist for the Fort Worth Star-Telegram. To find out more about Molly Ivins and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate web page at www.creators.com. COPYRIGHT 2000 CREATORS SYNDICATE, INC.