“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.