Hanging Judges

The good news is that the defective sentences would not have been thrown out if there hadn't been federal and state judges of some integrity--yes, they do exist--to catch the errors and force them to be corrected. Florida's Supreme Court, for example, found trial errors requiring retrial or resentencing in an astounding 83 percent of the first-time death-penalty appeals it reviewed in 1999.

But in several states and regions, such judges seem to be extremely rare. For a prime example, consider Virginia's state appellate courts and the federal Court of Appeals for the Fourth Circuit, which handles appeals from Virginia. They seem to have gone into business together as a kind of abattoir. Unlike other states and other federal circuits, they think virtually all capital trials have been fair and error-free and that there's no reason not to speed up the executions. Virginia has the lowest percentage of capital reversals in the country (nearly half that of the next lowest state, and less than one-fourth the national average).

Does this mean Virginia's trials are outstandingly fair and error-free? Or does it mean that the appellate judges are willingly blind to the errors because they like to keep the death-row production line humming? They certainly succeed at the latter: Virginia has an extremely high rate of execution, nearly double that of the next highest state and five times the national average.

The Fourth Circuit, a veritable rubber stamp for capital sentences, is recognized as being by far the most conservative court in the federal appellate system. It is a hotbed of right-wing Republicanism, the same kind that guides the Texas Court of Criminal Appeals, and it is largely because of the TCCA that Texas has executed two and a half times more people than even that hard-charging runner-up, Virginia.

Ten years ago the Texas panel had a few humane members, and they weren't timid about criticizing their colleagues' judgments. When the court refused to hear a capital case because an inept lawyer failed to file an appeal before the prescribed deadline, Judge Morris Overstreet denounced the decision as bordering on "barbarism because such action punishes the applicant for his lawyer's mistakes." Judge Overstreet is no longer on the court. Neither is Judge Charles Baird, who had the gall to suggest that his conservative colleagues shouldn't be so speedy in approving death for defendants who had been given worthless attorneys.

Tired of listening to malcontents like Baird and Overstreet, leaders of the state Republican Party launched a successful campaign to take over the court--in fact, all the courts in the state. It was a partisan rout. As the dean of one Texas law school put it, "If Bozo the Clown had been running as a Republican against any Democrat, he would have had a chance." Indeed, several bozos were elected. One of the newly elected members at the TCCA was Stephen Mansfield. In his campaign he lied about his birthplace, lied about his prior political experience, lied about his lawyering experience and failed to disclose that he had been fined for practicing law without a license in Florida. All this came out before the election, but 54 percent of the Texas voters backed him because he promised to be really, really tough on those liberal defense attorneys. (There's an aura of tackiness about this court, and Judge Mansfield showed he fit right in when he was arrested for scalping complimentary University of Texas football tickets that members of his court received.)

Chief Judge at the TCCA is Sharon Keller, best known for an appearance on Frontline in which she opposed freeing a man who had served ten years for rape even though a DNA test proved him innocent. Jeffrey Toobin had her in mind when he wrote in The New Yorker that "in Texas, at least, women judges have enforced the criminal law in general and the death penalty in particular with a greater ferocity than their male predecessors." The all-Republican court has become merciless in what the Texas Defender Service, which aids penniless murder defendants, accurately calls a "superficial, slipshod, politically motivated" review of death-penalty appeals. Between 1973 and 1995, a relatively humane era (by Texas standards), the TCCA reversed 35 percent of death sentences, putting it in the mainstream of appellate courts nationwide. But since 1995, with right-wingers totally in control, it has reversed only eight of 256 capital cases--at 3 percent, the lowest reversal rate in the country.

The TCCA is so eager to keep the juggernaut rolling that even when it makes mistakes so glaring it is forced to admit them, the court refuses to correct the mistakes. Some mistakes are so egregious that it's hard to believe they are accidental. On several occasions the court's opinion upholding a death sentence is at least partly based on trial record "excerpts" that simply were never in the record. The TCCA seems to have made them up for the occasion.

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