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It is not usually expedient in Texas to run for office on anything but a “tough on crime” platform. But Bill Vance, Democratic candidate for the Texas Court of Criminal Appeals — who says he favors the death penalty for those who deserve it — contends the appeals system for death row inmates isn’t working properly and says appellants aren’t getting a fair shake. Of course, his political stand does have a populist edge. Numerous polls repeatedly show that Texans favor the death penalty, even though they fear that innocent people may be put to death. Amid the death penalty debate — much of it centered on Gov. George W. Bush’s run for president — there are increasing complaints about the appeals process for those who are sentenced to die in Texas. Nationwide, a study by Columbia University School of Law Professor James Liebman found that 68 percent of death penalty appeals were successful between 1973 and 1995. Texas appeals were successful 52 percent of the time. Liebman studied more than 4,500 appeals. But Texas streamlined its appeal process in 1995. Direct and habeas proceedings were handled simultaneously, rather than a direct appeal to the Texas Court of Criminal Appeals followed by habeas proceedings, the method in place before the streamlining. In a September report, the Texas Civil Rights Project found that only eight out of 278 cases — fewer than 3 percent — were overturned by the Texas Court of Criminal Appeals under the new, faster system. “On the face of it, you’d have to say that the cases are not getting the kind of review that they should,” Vance says. A justice on the 10th Court of Appeals for nearly 10 years, Vance is running against Court of Criminal Appeals Judge Sharon Keller. They are seeking the presiding judge position being vacated by Mike McCormick, who did not seek re-election. Republican Barbara Parker Hervey, assistant Bexar County district attorney, faces Democrat William Barr, a Dallas criminal-defense lawyer, for the Place 2 seat Keller is vacating. In the only other Court of Criminal Appeals race, Republican Charles Holcomb, a former Democratic judge on the 12th Court of Appeals in Tyler, faces no Democratic challenger but is contested by Libertarian Rife Scott Kimler. Texas has executed 232 people since 1982, when capital punishment resumed. The Texas Civil Rights Project reports that 445 people were on Texas’ death row in September. Currently, it takes on average 10.6 years to go from conviction to execution, but Keller estimates those numbers will drop to seven years. James Harrington, director of the Texas Civil Rights Project, estimates it will take half the time it currently takes. Vance alleges the Court of Criminal Appeals is making mistakes. He cites the often-criticized case of Calvin Burdine, convicted and sentenced to death in Harris County for a 1983 robbery and murder. Several jurors and the court clerk testified in a 1995 appeals hearing that Burdine’s defense lawyer, Joe Cannon, fell asleep numerous times during the trial. The Court of Criminal Appeals found no error in the death sentence, a ruling death penalty critics rail against. It was later overturned in federal court, where it remains on appeal. According to news accounts, Cannon, who has since passed away, denied he was sleeping and said he was only closing his eyes from time to time. The state alleges to this day that Burdine confessed to the murder and that there is no evidence the allegedly sleeping lawyer actually changed the trial outcome. Keller, a judge who heard the case and ruled on it, says she cannot speak of the case’s details. But Keller does say the Court of Criminal Appeals used a two-pronged approach. To overturn the case, the court had to find that the lawyer provided a deficient performance and that the outcome of the trial was affected by that deficient performance. And Keller says the Burdine appeal didn’t pass the test. Keller won’t say if the court found that the allegedly sleeping lawyer was necessarily evidence of deficient performance, although she does allow as a general rule that lawyers should not sleep during trials. Vance sides with critics and says a sleeping lawyer is reason enough for a new trial. As for the numbers and statistics, Keller is unimpressed. She says any statistic related to appeals, whether a high percentage of overturned cases or a low percentage, is being used as ammunition by those who challenge the appeals system. She says when the court was overturning more cases, it was cited as evidence of a system gone wrong. And she says now that the court is overturning fewer cases, it still faces the same attack. “I don’t think you can necessarily tell anything by looking at those statistics standing alone,” Keller says, adding that there are some apples and oranges being compared in the appeal statistics. The Columbia study included cases overturned on the federal and state levels, while the Texas Civil Rights Project — and its report of a 3 percent turnover rate — only speaks to state appeals. Still, Keller agrees that the court is overturning far fewer cases these days. DYSFUNCTIONAL ASSEMBLY LINE Professor Liebman of the Columbia University School of Law says Texas’ appeal process for death sentences is a dysfunctional assembly line. His nationwide study led him to conclude that there is a tremendous amount of error in the death sentence system, since so many cases are overturned. And what Liebman sees in Texas is a rate of unsuccessful appeals that flies in the face of the national experience. Liebman, who says he personally has moral difficulties with the death penalty, says Texas’ streamlined system speeds up an assembly line that wasn’t working all that well to begin with. “You’re not getting less error,” Liebman says. “You’re getting less quality error detection.” “They ought to be glad that we’re following the rules and doing such a good job,” fires back Harris County District Attorney Johnny Holmes. His office is a leader in the nation when it comes to winning death sentences. Holmes says it would be a concern if many of those sentences were being reversed because the public would perceive that prosecutors were doing a poor job. Holmes says the streamlining of Texas appeals removed no safeguards because habeas and direct appeals largely mirror themselves. And he says the pre-streamlining system was a mistake because it dangled the death penalty in front of victims’ rights groups as an ultimate deterrent and yet took so long, with so few people being executed, that it also kept the death penalty opponents at bay. “What really was wrong with our system before was that we were trying to make everybody happy,” Holmes says. Keller says the lower rate of successful appeals before the Court of Criminal Appeals is a result of the judges on the bench, not streamlining. The Republican court now in place is far removed from the Democrats who used to dominate the Court of Criminal Appeals. As the Republicans are attacked for possibly being too hard, the Democrats faced attacks for possibly being too soft. Keller says judges in her party are correcting the errors of the previous court. Harrington, whose organization raised the overturning-rate issue as part of last month’s wide-ranging critical report on the death penalty in Texas, says politics is part of the problem. He says the rights of the accused are being trampled in the popular rush to be tough on crime. The report calls for a moratorium on executions, much like the one ordered in Illinois by Gov. George Ryan in January. He says Bush has a lack of “moral leadership” by not doing the same in Texas. The American Bar Association ended a death penalty conference in mid-October with its own call for nationwide — state and federal — execution moratoriums. Bush consistently has said that no innocent people are being put to death and that the appeals system has numerous checks and balances. Bush spokesman Mike Jones says a convicted murderer gets at least nine separate appeals to state and federal court. Harrington counters that the system is moving faster, with years being sliced off the appeal time. To critics such as Harrington, that time could prove critical if someone came forth with new information or if someone else admitted that they committed a murder, rather than someone sitting on death row. He points to Illinois as an example. There, lengthy death penalty appeals finally won out as new information became unearthed, thereby exonerating death row inmates and prompting Ryan’s moratorium. Notes Harrington, “If they had been under an abbreviated system like Texas, they would have been dead.” EXECUTIONS IN TEXAS Year — No. of Executions 1982 — 1 1983 — 0 1984 — 3 1985 — 6 1986 — 10 1987 — 6 1988 — 3 1989 — 4 1990 — 4 1991 — 5 1992 — 12 1993 — 17 1994 — 14 1995 — 19 1996 — 3 1997 — 37 1998 — 20 1999 — 35 2000 — 33* * Seven more executions are scheduled for 2000. Source: Texas Department of Criminal Justice.

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