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Questionable Calls: George W. Bush and the Death Penalty

Recently, George W. Bush made news when he announced a 30-day reprieve for condemned murderer Ricky McGinn; his first time to issue such a reprieve in all his years as governor of Texas. Bush says he took this action because because "I want the man to have his full day in court." What is curious however is why McGinn was the first who was given this privilige over the other 131 people executed by Bush so far.

The McGinn case was an easy and, some would argue, safe call of guilt. McGinn was convicted of the 1993 rape and ax murder of his 12-year-old stepdaughter. Blood matching his stepdaughter's was found in the backseat of his car. An blood-covered axe, the blood matching his stepdaughter's, was also found in the backseat of his car. The blows to the girl's head were determined to have been caused by an axe. And hairs were found on the girl's body that appeared to match those of McGinn.

At the time of his trial, a sophisticated DNA test that could positively determine if semen and pubic hair taken from the victim were McGinn's was not yet available, so he was convicted fairly easily. For the last few years McGinn's lawyers have rallied for a DNA test to prove his innocence on the rape charge. This is because under the criminal laws of Texas, a simple murder case is not worthy of death unless there is an aggrivating factor, such as rape. If McGinn can be cleared by the DNA evidence of the rape, then he can have his sentence communted to life in prison.

Bush's reprieve comes at a time when the spotlight nationally on the use of the Death Penalty is unusually bright and aimed squarely at Texas. Also, the fact Bush is issuing the reprieve to help a child rapist escape death only shows how serious he is in his commitment to making sure that everyone in Texas gets a fair shake. This does not, however, explain why Bush has refused that fair shake to so many others; many of whom had a chance to be proven completely innocent if they were given a DNA test.

Consider Betty Lou Beets, the 62-year-old grandmother executed last February. Like McGinn, Beets was eligible for a death sentence under Texas law because she was convicted not only of murder but of aggravated murder. In McGinn's case the aggravating factor was rape. In Beets' case it was the state's claim that she killed her husband in order to recover his insurance and pension benefits. Without the aggravation, neither McGinn nor Beets could legally be condemned to death.

The difference between the two cases is that McGinn's alleged rape is now easily tested with DNA. Beets, on the other hand, could not give the governor the near-absolute certainty he demands in granting a reprieve. Beets was almost certainly guilty of murdering her fifth husband and burying him under a little wishing well at the front of her mobile home near Gun Barrel, Texas. But the evidence that Beets was not guilty of capital murder -- a murder that qualifies for a death sentence -- was stunning.

Beets' attorney, E. Ray Andrews (who later served a three-year federal prison sentence for soliciting a bribe while serving as district attorney in another murder case), never told the jury that Beets didn't even know about the insurance policy on her husband at the time he was murdered. She learned of it more than a year later thanks to Andrew himself. Why would an attorney withhold such critical evidence from a jury? Who knows. But Andrews had obtained the literary and movie rights to Beets' life story in lieu of payment for defending her. Had he revealed her ignorance of the insurance policy, he would have had to withdraw from the case and testify on her behalf. That would have also meant losing lucrative rights to Beets' story -- and, perhaps, a better ending for the movie.

Bush and his aides say that in reviewing death sentences he takes into account an individual's personal history -- including evidence of sexual abuse and family violence -- as well as whether there was a fair trial. But Beets' attorney failed to present evidence of a long history of sexual abuse, including her rape by her father when she was 5 years old, at the sentencing phase of the trial, which might have convinced a jury to impose a sentence other than death. Although the jury never heard this evidence, it was laid out for Bush in Beets' clemency appeal. Apparently, he was not impressed.



Earlier this year, Bush approved the execution of Odell Barnes, whose court-appointed lawyers failed to interview witnesses who might have helped their client, and conducted no scientific investigation of blood and semen evidence the state said linked Barnes to the crime. (Texas is notorious for appointing poorly paid and unqualified lawyers in capital cases.)




Last year the governor signed off on the execution of Canadian Joseph Stanley Faulder, convicted of murdering a wealthy oil heiress, despite the fact that the prosecutor had been hired and paid for by the victim's family, and that the state had withheld evidence that its principal witness was paid more than $10,000 to testify against Faulder. The state's chief psychiatric witness, whose testimony was essential to securing a death sentence, was later expelled from the American Psychiatric Association for presenting unprofessional testimony in Texas death penalty cases.


Bush refused to stop the execution of James Beathard, whose co-defendant, Gene Hathorn Jr., recanted his testimony following Beathard's conviction and said he, not Beathard, had been solely responsible for the murder of three members of Hathorn's family. The Texas Court of Criminal Appeals refused to grant Beathard a new trial because state law requires that new evidence be presented within 30 days after a judgment is entered. Hathorn's recantation came 11 months too late.



Bush also failed to intercede last year on behalf of Andrew Cantu, who ended up representing himself after two lawyers assigned to his case withdrew and a third never even interviewed the defendant, claiming he didn't know where to find him. (He apparently didn't try death row.) Cantu was executed without either state or federal habeas corpus review of his claims.



In 1997, Bush approved the execution of David Spence for the grisly stabbing deaths of three teenagers, despite evidence that Spence may have been framed by police and the lack of physical evidence linking him to the crime.




A clemency petition now on Bush's desk rests, in part, on claims of attorney incompetence. Gary Graham, who is scheduled to be executed June 22 for a murder the state says he committed when he was 17 years old, says his court-appointed lawyer failed to question numerous witnesses who could have proved him innocent. Graham's current lawyers say there was no physical evidence linking him to the crime, that Graham didn't know the victim and had no apparent motive for killing him.

Although the state called it a "robbery," the victim was found with $6,000 cash in his back pocket. And police forensics established that Graham's .22 pistol was not the murder weapon.

Graham was convicted and sentenced to die on the basis of testimony from a single eyewitness, Bernadine Skillern, who acknowledged that she only saw the assailant for two seconds at a distance of 30 to 40 feet. Graham's lawyers allege that Skillern was effectively coached because she was shown a photo array of possible suspects before being asked to examine a group of live suspects in a lineup. The only suspect in both the photo array and the live lineup was Graham. A second witness, Ronald Hubbard, who said he also saw the shooter, was also present at the live lineup but did not identify Graham as the assailant. But neither Hubbard nor a third eyewitness, who also excluded Graham, was ever interviewed by Graham's lawyer, and neither testified at Graham's trial.




And now, a DNA test has cast serious doubts upon the guilt of Michael Blair. Blair was condemned to Texas' Death Row for strangling Ashley Estell; a ponytailed, second-grade soccer player who was abducted from a game in the affluent area of Plano in which she lived.

If the name of Ashley Estell sounds familar, it should. Six years ago, her death inspired the passage of some of the toughest sexual-predator laws in the country by the Texas Legislature. Known as "Ashley's Law", this legislation created longer terms for child molesters and required public registration of their names, photographs and addresses when they were paroled.

Worthy legislation to be sure, but it would be truly ironic if the man who inspired such legislation were proved innocent. So far, one DNA test has cleared Blair. Further testing should be concluded by the end of the month.

The DNA Evidence stands a good chance of clearing Blair, especially considering the weak nature of the rest of the only physical evidence in the case.

It was a hair and fiber analyst of hairs found in the backseat of Blair's car that linked Blair to his victim by microscopic similarities in hair evidence. This procedure, unlike fingerprinting and DNA, cannot positively identify a specific individual. The procedure is so inexact, in fact, that some states have ruled that microscopic hair-matching alone is inadmissible without an accompanying confession, eyewitness testimony, fingerprints or other evidence.

Also, upon finding Blair, police stopped their investigation of Josh Foster. Foster, a local computer programmer, volunteered as a referee for the local children's soccer leauge. Police discovered that Foster went by at least 10 other aliases and was free on bail on child-molestation charges pending in Amarillo and Bentonville, Arkansas. Foster had no alibi for the time of Ashley's disapperance and was found at a motel on I-35 on his way out of town. As soon as the investigation against him was dropped, Foster left town. He was later jailed in Birmingham, Alabama, on another child-molestation charge. Blair's defense attempted to get him extradited back to Texas to conduct similar hair tests on Foster, but the judge denied the motion.

However, what is more troubling than the thought of an innocent man being jailed while a child molestor runs free is the response of the law-enforcement community to Blair's efforts to prove his innocence. The Texas attorney general's office nonetheless fought unsuccessfully to deny Mr. Blair access to the evidence for testing. The first of three court-approved DNA tests appears to discredit the microscopic hair analyst's findings. And Collin County District Attorney Tom O'Connell contends that even if pending DNA tests determine it's not Ashley's hair that was found in Mr. Blair's car, the conviction should stand because of other evidence. He argues that the hair identified during the trial as microscopically similar to Ashley's wasn't the "determinative issue" that pointed to Mr. Blair's guilt.

The other evidence in this case, is a few accounts of a man who resembled Blair being seen at the park that day, "odd behavior" during a video-taped interview (which was made shortly after Blair left a hospital where he was being treated for depression) and his going to the site where Ashley's body was recovered a few days later and looking around it. This, he later explained, was because of curiosity about the scene that was arroused after Blair volunteered as part of the search party that looked for Ashley before her body was found. All evidence that is, at best, circumstantial compared to DNA testing.




Specifics for these cases and some text is quoted from Alan Berlow's article "Bush's death penalty dodge" at Salon.com and "Tests casting doubt on guilt in girl's death" by Holly Becka and Howard Swindle in The Dallas Morning News.


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