Texas' rotten system

New injustices exposed in the "belly of the beast"

By: Lily Hughes

Texas is not immune to the problems that plague the death penalty system nationwide. Nor has the state been left unaffected by the national debate over the use of capital punishment. However, looking at the pace of executions carried out in Texas, some may find it hard to believe that progress is being made.

Texas recently carried out its 300th execution since the death penalty was reinstated in the mid-1970s, and another 16 were scheduled before the end of April. In fact, Texas accounted for 35 percent of all executions nationwide since reinstatement. This despite the serious flaws in the state's death penalty system that have been exposed these last few years.

Texas Court of Criminal Appeals
Often referred to as the "belly of the beast," Texas has one of the worst records of racism and poor representation in its system, not to mention the continued practice of killing juveniles, the mentally ill and the mentally retarded. The state's highest court, the Texas Court of Criminal Appeals, routinely upholds some of the system's worst injustices.

A recent study by the nonprofit Texas Defender Services found that the court had failed repeatedly to guarantee the right of death row inmates to receive adequate legal counsel.

The more striking blunders overlooked by the court included a man whose appeal was overseen by a judge who had been a prosecutor at his original trial -- and a man who was executed although jurors at his trial had signed a statement requesting DNA testing.

But perhaps the most infamous case is that of the "sleeping lawyer." Although it was shown during his appeals that Calvin Burdine's lawyer slept through large portions of his capital murder trial, the Texas Court of Criminal Appeals ruled that the constitution ensures a defendant the right to a lawyer, but nowhere does it say that lawyer has to be awake! It took both the 5th U.S. Circuit Court of Appeals and the U.S. Supreme Court to rule for a new trial in the case.

New Evidence of Racism
All seems minor, however, when compared to new evidence showing that courts continue to uphold racist practices during trial and in sentencing. Two prominent cases involving African American death row prisoners in Texas have exposed these injustices: the cases of Delma Banks and Thomas Miller-El.

The U.S. Supreme Court voted to give Thomas Miller-El a new chance to show that prosecutors stacked his jury with whites. Miller-El came within hours of execution last year before the Supreme Court agreed to hear his case.

Miller-El and his lawyers say that prosecutors were trained by the Dallas County prosecutors' office to disqualify prospective Blacks from being jurors. It worked -- nine out of 10 eligible Blacks were kept from serving on the jury in Miller-El's case.

Delma Banks is Black and was convicted by an all-white jury. Prosecutors kept four Blacks in the jury pool off the jury, and Banks' trial lawyer raised no objections. His lawyer also failed to call any witnesses for the defense during the guilt-innocence phase of the trial. There was no physical evidence linking Banks to the crime. He was convicted on the basis of two eyewitnesses. One was a paid informant. The other was facing criminal charges in another case and received a plea bargain. This witness later recanted his testimony.

Banks had just 10 minutes left to live when he won a stay from the Supreme Court and a new opportunity to appeal -- something that was denied to him by every state court in Texas.

The Impact of Activism
The federal courts have been forced to take a closer look at Texas. High-profile cases combined with a barrage of editorials in Texas newspapers calling for a moratorium have not escaped the attention of Texas lawmakers. In the last legislative session in 2000, there were a number of bills calling for reforms to the system and for a moratorium. This spring has seen many of those same bills reintroduced, as well as bills calling for outright abolition.

Much of the attention that the death penalty is receiving at the top is due to grassroots activism by abolitionists in Texas over the last three years. From Shaka Sankofa's execution in 2000 to Delma Banks in 2003, abolitionists have forced the issue of the death penalty to the forefront of politics.

We have exposed in several cases the injustices of our system. We have called out politicians and ignited debate among the people of Texas through a steady stream of press conferences, marches, protests and public forums.

We recognize that we still have a way to go on this issue. But with continued pressure and exposure of Texas's rotten system of justice we are confident we will get there.