"The death penalty's very serious business, Leo," Governor Bush condescendingly told a questioner in the third presidential debate. "There've been some tough cases come across my desk. Some of the hardest moments since I've been governor of the State of Texas is to deal with those cases.... But my job is to ask two questions, sir. Is the person guilty of the crime? And did the person have full access to the courts of law? And I can tell you, looking at you right now, in all cases those answers were affirmative."
On camera Leo Anderson, the questioner, didn't seem to buy the governor's oft-repeated assertion, and he certainly wouldn't have if he had been privy to a recently released confidential memorandum on one of the toughest of those cases.
The memo went from Bush's then-general counsel, Alberto Gonzales, to Bush at 10:30 on the morning of April 3, 1997, only hours before David Wayne Spence was to be executed. Although the document was his first detailed look at the case and although the governor was Spence's only hope for a reprieve--the courts and Board of Pardons and Paroles having turned him down--this "very serious business" took Bush, according to his schedule for the day, all of half an hour at most.
I obtained the memo through the Public Information Act, Texas's FOIA. Not surprisingly, the Bush administration vigorously resisted its release. The document that went fleetingly across the governor's desk that morning is seven single-spaced pages, and although it works overtime to be unequivocal, it can't disguise or resolve the "tough questions" concerning Spence's guilt. The memo's author, Stuart Bowen, the deputy counsel charged with investigating the case, uses distortion, omissions, outright lies and an inappropriate adversarial bent to reach what must have been a preordained conclusion to deny a reprieve.
Writing several months after the execution and using the same information Bowen used, Bob Herbert in the New York Times concluded that Spence was "almost certainly innocent" and the case against him a "travesty." Many others, including Alan Berlow in Salon and a team of Chicago Tribune reporters, have agreed. But Bowen had been in the execution business with Bush long enough to know that the governor, preparing for a re-election campaign and in the starting blocks for a run for the presidency, would never go for a reprieve in the Spence case. And certainly not on the day of the execution, with families of the teenage victims of the crime for which Spence was about to die--a triple murder at a lake near Waco in 1982--in a motel in Huntsville ready to scream their heads off if the execution didn't go through. So Bowen did the following in the memorandum:
§ He opened by reciting the "facts" of the case as if he were a prosecutor giving a closing statement to a jury, brushing over developments favorable to Spence's claim that had surfaced in the fifteen years since the crime.
§ He bought the state's illogical theory of the case, that Spence was hired to kill a girl and mistook one of the teens for that girl (even though Spence knew the girl well and, according to testimony, hung out with the teens for hours before the killings), and ameliorates the illogic by dropping a crucial detail (he doesn't mention the testimony about hanging out for hours).
§ He put all the problems with the case under the heading "Publicity." This invidious rubric was intended in part to deprecate a Waco businessman, a conservative Republican, who had tried to get the execution stopped; he came to Bowen a week before the execution and laid out a detailed case for Spence's innocence.
§ He lied. For instance, he said the prosecutor turned over all the evidence in his possession to the defense, although the prosecutor explicitly told him he hadn't. He says the first lead detective on the case, Ramon Salinas, who sat in Bowen's office and told him without qualification that he believed Spence to be innocent, was fired for "incompetence," which is not true.
§ He relegated Spence's claim that he was railroaded by an unscrupulous sheriff's deputy and DA to three sentences in the conclusion, ignored voluminous testimony documenting this frame-up and swept away the allegations as "tertiary issues."
§ He rubber-stamped the courts' judgments (saying in a letter to me that those rulings are "the bottom line"), in effect negating the clemency procedure.
"Yet making decisions is what governors and chief executives do," the governor has written about that clemency procedure. "I try to do so thoroughly, thoughtfully, and fairly. I have assembled a top-quality staff that gets me accurate information and comprehensive briefings. I base my decisions on principles that do not change." Thoroughly? In thirty minutes? As to his top-quality staff and their accurate information, the memo supports the former (they are adept at distortion, etc.) and puts the lie to the latter. And principles? Let's just say they are very different from those of his honorary Illinois campaign chairman, Governor George Ryan, who has halted all executions in his state because he believes the execution of an innocent is truly a nightmare.
With its dissembling and obfuscation, the memorandum makes clear that when he denied Spence a reprieve, George W. Bush and his aides didn't know whether the man was guilty or innocent. A year after Spence's execution, Bush granted clemency to Henry Lee Lucas, the alleged serial killer, because, he says in his book, A Charge to Keep, he didn't know whether Lucas was guilty. But the politics of the Lucas case were different from those of the Spence case, and politics, Leo--unlike the life of David Spence--is very serious business indeed.