Death and Texas (Page 2)

Bandera, Texas

Although it has become a commonplace to associate Texas with miscarriages of justice with capital punishment, the three linked as if by some perverse force of nature, the state didn't ask for the death penalty in this case. In fact, it rarely does in small counties, where the mechanics involved could be financially ruinous and politically problematic, as resources would be strained and other cases would have to go waiting. So Rodriguez had a standard trial, before a white male judge and a jury of twelve men. The only women involved in the trial besides herself were a prosecutor, a Latina who displayed contempt for her and her entire family, and an alternate juror, who is so upset over the verdict that her husband has asked Rodriguez's appellate lawyer, Adrienne Urrutia, not to call anymore, since discussing it rips her up.

Rodriguez didn't have a court-appointed lawyer who fell asleep at trial or was senile or drunk or about to be indicted for a crime himself, all conditions that have attended some of the state's most notorious cases. Instead, her family members pooled all the money they had, $10,000, and hired attorneys (also men) who didn't know what they were doing or didn't feel it was worth it to care. Defense attorneys called the most damaging witness, Rodriguez's landlady, who, they learned too late, had a vendetta against her and handed the prosecution its theory of the case: that this mother just didn't want her baby. They repeatedly opened doors to speculation that they didn't close, or allowed the prosecution to make speculations that went unchallenged. They never hired an investigator, never called their own expert witnesses to rebut the starvation charge, never called witnesses who could testify that Tina Rodriguez welcomed the birth of Ramiro. Again and again they asked questions whose answers they didn't know, each time giving the prosecution's experts more credence than they deserved.

Urrutia has noted this and more in her appeal brief, and has presented testimony of a nutrition specialist and a pediatric expert in malnutrition who studied the autopsy report and concluded that Ramiro may have died from something more rare than starvation: a genetic defect that prevented him from metabolizing the milk he drank; that caused it, in effect, to ferment rather than build flesh and bone and keep him alive. She calls this the "most compelling case" she's had in twelve years of practice. To take it on, working day and night under deadline, hiring an investigator, finding experts and filing a motion for a new trial, she put her entire practice on hold for more than a month. "Clients came and went; it cost me everything." And she was appointed to this case, paid $3,280, including expenses.

Urrutia says there are plenty of people in Texas who defy the stereotype of court-appointed lawyers being lazy or worse, but it's not a surprise, given the rate of payment, that so many cut corners. The Court of Appeals has ordered the district court to hold a hearing on Rodriguez's motion for a new trial, and the state is resisting all the way. "I shouldn't have to fight this hard just for a hearing," Urrutia says. "People forget, but the state's job isn't to win; the state's job is to secure justice."

Back in Austin legislators were tinkering with the mechanisms of what passes for justice. Bills to place a moratorium on the death penalty didn't have a chance (though they got farther than anyone had expected), but legislators did manage to ban executions of mentally retarded persons, a ban Governor Rick Perry, like George W. Bush before him, recently vetoed. Outside the Capitol before that bill was finalized, Perry was on hand, with police, FBI, DEA, highway patrol, various county officers and a gaggle of prison wardens, all representatives of the institution that has guys with IQs of 57 and such sitting on death row, for the symbolic kickoff of the Texas Law Enforcement Torch Run for Special Olympics. Texas is first in the country in executions, first in executions of the retarded, first in fundraising for Special Olympics. Perry made some treacly remarks about "the special in Special Olympics" and then lit four torches with the Flame of Hope, sending runners out on the Austin streets. It was all phony (after a few blocks the runner-lawmen would quench their torches and go back to work), a photo-op for Perry to show off Texas as a bighearted place that rewards the "good retards" for hard work--run! jump!--while holding the needle in reserve for the bad ones. Now some in the State Senate vow they'll try to override Perry's veto.

The legislators did succeed in granting convicts access to state-paid DNA testing in cases where the results might determine innocence, a law that could benefit 13,000 incarcerated people. They set minimum standards for lawyers appointed to defend poor people in criminal cases and allocated $20 million to counties to help pay those lawyers. They banned racial profiling and barred judges and expert witnesses in the course of sentencing from using a defendant's race or ethnicity to determine his or her future dangerousness. They increased money damages for persons wrongfully convicted of a crime, to $25,000 for each year of imprisonment plus legal fees.

In Bandera, Richard Trevino, overhearing talk on the legislature's newfound interest in civil rights, said, "I'm a Yellow Dog Democrat and I voted for Gore. But I wish I'd voted for Bush so I could take credit for getting him out of Texas." As Susan Smith of the Austin American-Statesman points out, though, it lets Democrats off the hook to attribute all the ills of Texas to Bush's nearly six-year governorship. And significant as the new measures are, none of them (with the possible exception of the law regarding wrongful conviction) will affect people like Tina Rodriguez. There are things more intractable than the law, more deeply rooted, things that politicians, Democrats and Republicans alike, have come to accept almost as part of the landscape. Trevino himself is a lawyer, representing working-class people in civil actions, work he says he's able to pursue only because his wife's salary as a nurse covers the family's bills. For Trevino, his clients, anyone on the short end, there's no mistaking that law is the handmaid to power, and power is something the vast majority of people here haven't got enough of.

Tina Rodriguez didn't have enough of it--a woman yoked with poverty, isolation, a body weakened from successive birthings, a jealous and abusive husband who kept her on a psychic short leash and sent a large portion of the family's money to his other wife and children in Mexico. If there was a way out, she couldn't see it. Even if she could, as a woman ill disposed to discuss her problems, she was a good daughter of Texas, whose boosters strain to present stoicism in the face of the stuck life as a virtue.

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