Back in the days when Governor George Bush was only able to screw up Texas instead of an entire nation, fifty-seven lawyers representing men—and a woman—on death row requested commutations so that their clients might receive life instead of death.
When approached by lawyers representing mentally retarded inmates, Bush refused.
When approached by lawyers representing inmates whose court-appointed lawyers had slept during their trials, Bush refused.
When approached by lawyers representing men who had committed the crime in question as juveniles, Bush refused.
In each case, then-Governor Bush felt that the defendants had had full and equal access to the law.
But now along comes Scooter. President Bush deemed his thirty-month sentence “excessive” and—just like that—commuted his sentence prior to any judicial review. Libby had the finest legal representation. He never expressed any remorse for lying to a grand jury or for his role in the administration’s snow job on the American people that led our nation into a war. Yet Scooter is the lucky soul granted clemency by Bush.
In an article for the once-hyped but now defunct magazine, Talk, conservative commentator Tucker Carlson interviewed then-Gov. Bush about Karla Faye Tucker, a woman who had recently been executed after he denied her clemency. Bush’s response struck Carlson as “odd and cruel” and he described this exchange:
“I watched [Larry King’s] interview with [Karla Faye Tucker]…,” Bush said. “He asked her real difficult questions, like ‘What would you say to Governor Bush?’ ‘What was her answer?’ I wonder.
‘Please,’ Bush whimpers, his lips pursed in mock desperation, ‘don’t kill me.’
Odd and cruel, indeed. Carlson provoked a bit of a media storm for revealing Bush’s callousness at a time when—unlike now—he was still viewed as Mr. Compassionate Conservative. (The Bush presidential campaign tried to deny that Bush had made this statement but to no avail.) Bush seemed all the more cruel given that appeals for clemency had been made by figures from around the world, including Newt Gingrich, Pat Robertson, the Huntsville prison warden and correction officers who testified that Tucker was a model prisoner and reformed, a prosecutor of her accomplice, the brother of one of her murder victims, Pope John Paul II and the European Parliament.
Sister Helen Prejean, one of the preeminent fighters against the death penalty and the inspiration for the film Dead Man Walking, wrote, “Callous indifference to human suffering may also set Bush apart. He may be the only government official to mock a condemned person’s plea for mercy, then lie about it afterward, claiming humane feelings he never felt.” (Prejean was alluding to George Bush’s election-year memoir—A Charge to Keep—in which he wrote that Tucker’s impending execution “felt like a huge piece of concrete…crushing me.”) Preajan described her response when she was told on Larry King of Bush’s final press release before Tucker’s execution in which he stated, “May God bless Karla Faye Tucker….” Prejean wrote, “Inside my soul I raged at Bush’s hypocrisy, but the broadcast was live and global…. [So] I took a quick breath, said a fierce prayer, looked into the camera, and said, ‘It’s interesting to see that Governor Bush is now invoking God, asking God to bless Karla Faye Tucker, when he certainly didn’t use the power in his own hands to bless her. He just had her killed.’”
The cruelty described by Carlson and Prejean clearly isn’t an anomaly. As veteran political journalist Robert Sherrill reported in a special issue of The Nation on the death penalty: “During his presidential campaign reporters asked [Bush] if he was bothered that some indigents on Texas’s death row had been represented by lawyers who slept though part of their trials; he responded with a chuckle.” The facts around representation for indigent defendants belie Bush’s amusement. Sherrill wrote that as of 2001, only three of Texas’s 254 counties had public defender programs. In the other counties judges picked the attorneys “who are [often] personal friends, political supporters and contributors, and, most of all, attorneys with a reputation for ‘moving’ cases fast…. Texas’s county judges have appointed lawyers known to be drunks or drug addicts or both. Some of these court-appointed hacks know absolutely nothing about capital jurisprudence. Several have become famous for sleeping through parts of trials.”
And Amy Bach revealed in The Nation, “Studies proved inmates had been put to death in Texas despite representation by disbarred, suspended or incompetent attorney.” She wrote of a Texas State Bar survey that found “… 30 percent of judges said they knew colleagues who assigned counsel because they contributed to their judicial election campaigns. Others confessed to picking lawyers they knew would move dockets along and not give vigorous representation.” Bach pointed out that this kind of representation “renders the equal protection clause and the Sixth Amendment right to counsel virtually meaningless.”
Despite this weak public system, and mounting DNA evidence exonerating convicted death row inmates—including thirteen people in Illinois—Bush said in June 2000 that no innocent person had been sent to death row or executed in Texas (he had presided over the execution of more than 135 people at the time; Illinois had executed twelve people since 1977).
But Paddy Lann Burwell, who then-Gov. Bush had appointed to the Texas Board of Pardons and Paroles, repudiates Bush’s claim when it comes to the case of Gary Graham. Prior to the execution of Graham, the court-appointed lawyer “performed poorly” to say the least. Graham was convicted by a single witness who testified to seeing him through a car windshield some thirty to forty feet away. There was no physical evidence linking him to the crime. Two witnesses who said that they had seen the killer and it wasn’t Graham weren’t called to testify. Graham was also 17 at the time of the murder.
“He didn’t commit the crime we executed him for,” Burwell told the Times.
Since those days when Bush was chuckling at those executed under his watch, the Supreme Court has ruled (for now it was a 5-4 decision) that capital punishment of juvenile offenders and mentally retarded people is a violation of the Constitution’s ban on cruel and unusual punishment. But that decision came too late for Terry Washington, who Prejean described as “a mentally retarded man of thirty-three with the communication skills of a seven-year-old.”
After then-Gov. Bush’s typical thirty-minute meeting with legal counsel—you guessed it—Alberto Gonzales, Bush denied clemency. Washington’s mental handicap had never been brought to the attention of the jury that convicted him. Gonzales’s memo (obtained by journalist Alan Berlow through the Public Information Act) made no mention of this omission in the trial or the failure by Washington’s lawyer to seek the testimony of a mental health expert. The post-conviction lawyers found a history of child abuse, including regular beatings by “whips, water hoses, extension cords, wire hangers, and fan belts.” But none of this would lead to Bush deeming Washington’s penalty “excessive,” and commuting a death sentence to a life sentence.
When all was said and done, Governor Bush had snickered and mocked his way to denying commutations to fifty-seven of the more than 150 people executed under his watch. He then took his moral-certitude-by-any-means-necessary to the White House where one Scooter Libby would help him mislead a nation into a human catastrophe in Iraq and then lie about it.
More than 150 men and women are dead and gone with no second chances. But Scooter, well, one cold night in jail was just too much for his friend the President to bear.