The Texas Death House

Part 1: The Henchman of Wrongful Convictions

Revolutionary Worker #1062, July 16, 2000

"This is nothing more than pure and simple murder. This is what is happening tonight in America. Nothing more than state sanctioned murder, state sanctioned lynching, right here in America, and right here tonight. This is what is happening my brothers. Nothing less… They know I’m innocent. But they cannot acknowledge my innocence, because to do so would be to publicly admit their guilt. This is something these racist people will never do.

>— Shaka Sankofa, from the statement he made as he was being put to death

"This is the kind of thing that makes people think that this system is utterly corrupt."

— Attorney Burr, one of Shaka Sankofa’s attorneys

On June 22 the state of Texas executed Shaka Sankofa (formerly known as Gary Graham)—even though there was overwhelming evidence he was innocent.

Shaka Sankofa was convicted in a trial that lasted less than two days, based only on the testimony of one eyewitness who saw the murderer for just a few seconds! His court-appointed attorney presented no evidence on his behalf. No physical evidence linked Shaka to the shooting.

A week before Shaka was executed, the International Secretariat of Amnesty International issued "An Appeal to Decency" which said in part: "[Shaka Sankofa] was denied the right to adequate legal representation at his trial, and was convicted on the basis of a sole, disputed, eyewitness account. Extensive evidence was not heard in court because of his lawyers’ failings. His guilt in the 1981 killing of Bobby Lambert remains in serious doubt. Gary Graham’s execution looms at a time when the error-prone nature of death sentencing in the USA has become abundantly clear. His case is a textbook example of the fatal flaws that riddle the U.S. capital justice system."

The U.S. machinery that sends people to death row is grossly unjust and racist. And the State of Texas is this system’s busiest executioner. Since the death penalty was reinstated in 1976, Texas has executed 218 men and women, far more than any other state and about a third of the country’s total.

Texas has the second-largest death row population in the country. Second only to California which has 568, Texas currently has 457 prisoners on death row. More than 200 of these prisoners were condemned since 1995, when George W. Bush became governor. 40% of the prisoners on Texas death row are African-American, 22% are Latino.

The Chicago Tribune recently did an investigation which looked at the cases of 131 people who had been executed while Bush has been governor. This was before the execution of Shaka Sankofa—who became the 132nd person killed by the State of Texas under Bush.

The study found that Texas has executed dozens of death row inmates who clearly did not receive fair trials. The Tribune (June 6-10, 2000) examined trial transcripts, legal briefs, appellate rulings and lawyer disciplinary records and interviewed dozens of witnesses, lawyers and judges. Bush has publicly claimed that none of the people executed while he has been governor have been innocent.

The investigation found that:

  • Defense attorneys in 40 cases presented no evidence whatsoever or only one witness during the trial’s sentencing phase.
  • In 29 cases, a psychiatrist gave testimony that the American Psychiatric Association has condemned as unethical and untrustworthy.

  • In 43 cases, or one-third, a defendant was represented at trial or on initial appeal by an attorney who had been or was later disbarred, suspended or otherwise sanctioned.

  • In at least 23 cases, the prosecution’s evidence at trial or sentencing included a jailhouse informant—testimony that is highly unreliable.
  • In at least 23 cases, the prosecution presented a visual comparison of hairs— evidence that is extremely inexact.

    • INCOMPETENT LAWYERS

    Trial and the initial, or direct, appeal are the two stages of a criminal proceeding where district court judges appoint attorneys for defendants who cannot afford to pay for a lawyer. The Tribune investigation looked into the kind of lawyers that have been appointed to "defend" people who have been executed in Texas.

    The study found that some of the lawyers who have represented people executed in Texas have been convicted of felonies. Some have been disbarred or suspended from practicing law. Some were new and very inexperienced in death penalty cases. Many were totally incompetent.

    In the Wayne Stoker case, a district court judge appointed Ronald Felty—a former prosecutor—and Gary A. Taylor as defense lawyers. Felty later gave up his law license in the face of disciplinary action. He had forged the signatures of two clients on a settlement check, then pocketed the money. He also pleaded guilty to felony charges for forging a judge’s signature on a court order and falsifying a government document. He was sentenced to five years of community service.

    At least 43 of the 131 defendants looked at by the Tribune were represented at trial or on their initial appeal by a lawyer who had been or was later cited for misconduct by the State Bar of Texas. The misconduct included lying to clients and judges, accepting money to pursue a case and then ignoring it, repeatedly missing file deadlines and attempting to fix criminal proceedings. Most of these 43 attorneys were appointed by local judges to represent poor defendants.

    Judges in Texas have been criticized for appointing friends, campaign contributors and attorneys who rush cases to verdict. The New York Times recently wrote: "Defense lawyers and former judges say that many judges routinely appointed lawyers who moved cases quickly, and that there was pressure on lawyers to contribute to the judges’ campaigns."

    One of the most notorious criminal attorneys in Texas was Joe F. Cannon, a Houston attorney who died two years ago. He was infamous for sleeping during trials and speeding through cases to please judges with heavy backlogs. Cannon was the court-appointed attorney for three men executed under Bush.

    The Tribune found three court-appointed defense attorneys who were later convicted of felonies. Stoker’s attorney, Felty, is one. Another was imprisoned for sexually assaulting two teenage girls. The third, who became a prosecutor, was convicted in connection with an extortion plot. Some attorneys in the 131 cases have lengthy disciplinary records. One was sanctioned eight times, two others seven times, and one six times.

    Out of the 43 lawyers who were officially cited for misconduct, 34 were disbarred, suspended or given what is called a "probated suspension." Under a probated suspension, an attorney can continue practicing law if he/she meets certain requirements—like getting drug treatment or compensating clients they have victimized. In the other nine cases the attorney was simply reprimanded.

    Most of these attorneys were found guilty of misconduct after they had taken the death penalty case in question. But at least seven had already been cited before trying the death penalty case or handling the appeal.

    SHAKA’S RAILROAD

    Ronald Mock, who has been disciplined five times, represented four defendants at trial who have been executed under Bush — including Shaka Sankofa.

    When Mock was appointed to represent Shaka Sankofa he had only three years’ experience as an attorney. Several clients filed complaints against Mock, alleging that they smelled alcohol on his breath. Mock told The New York Times: "I drank a lot of whiskey. I drank whiskey with judges. I drank whiskey in the best bars. But it never affected my ability. It never affected my performance."

    Prisoners and attorneys in Texas call one section of death row in the state prison at Huntsville—where Shaka was executed—"The Mock Wing" because so many of Mock’s clients are there. Mock has had a total of 19 death penalty cases—16 of them have been found guilty and sentenced to death and seven have already been executed. Mock told The New York Times he believes he’s had more clients sentenced to death than any other lawyer in the country and boasted "that he had flunked criminal law at Texas Southern University’s Thurgood Marshall School of Law."

    Mock has served jail time for failing to file court papers on time in the case of his client, Anthony Ray Westley, who was executed in 1997. Mock has been disciplined four times for professional misconduct.

    Mock’s team did almost no investigation of the case before Shaka’s trial. One investigator who worked with Mock on the case said in a 1993 affidavit, "Since we both assumed Gary was guilty, I decided not to waste time trying to substantiate his alibi. I really didn’t think Gary had much hope so I just went through the motions." And Chester Thornton, Mock’s co-counsel in the original trial, wrote in his affidavit: "I was shocked when I learned that the investigation that I believed had been done had not. I have serious concerns as to whether or not Gary Graham received effective assistance of counsel."

    Mock did not challenge Bernice Skillern, the one witness who said Shaka was the murderer. He did not bring up the fact that this witness originally did not identify Shaka as the killer when shown a photo array by the police or that her original description of the shooter did not match Shaka. He did not bring up the fact that she told police the shooter had short hair and no facial hair—and that in the group of photos she was shown, only Shaka’s had short hair and no facial hair.

    Mock did not call the five other eyewitnesses to the stand who were mentioned in the police report, despite the fact that they all had a better view of the shooter than Skillern and that none identified Shaka as the shooter.

    Mock said he was too busy to talk to two people who came to the trial to testify that Shaka could not be the killer because they were with him at the time of the murder. Mock did not challenge the fact that the police’s own ballistics report showed the gun Sankofa had when he was arrested was NOT the murder weapon.

    All of Shaka’s appeals, which argued that he had received ineffective counsel, were rejected by all the appeals courts.

    Willie Williams had the gross misfortune to have Joe F. Cannon (the lawyer known for sleeping in the courtroom) AND Ronald Mock work on his case. Cannon and Mock never checked the full written statement of an eyewitness whose testimony could have been helpful to the defense. Williams was sentenced to death and then Cannon and a second attorney— who would later be diagnosed as mentally ill and suspended in Virginia—were appointed to handle Williams’ direct appeal. They filed a three-page brief in which they said they had reviewed the trial and concluded there were no issues worth arguing.

    Davis Losada was another one who ended up on death row after being appointed an incompetent lawyer. Even though Jose Luis Pena had only been an attorney for 17 months, a judge appointed him to defend Losada, who was accused in 1985 of raping and murdering a 15-year-old girl.

    Pena had represented one of the key witnesses used by the prosecution and he later admitted that his defense of Losada suffered from this conflict of interest. When Pena cross-examined the witness, he only asked him one question, three times. He later said in an affidavit that he limited his questioning to avoid getting into things he had discussed when he was the witness’ attorney.

    Court transcripts dug up by the Tribune investigation showed that after Losada was found guilty, Pena delivered a rambling, disjointed and brief statement at the sentencing hearing. He told the jurors, "Yesterday when I was talking to you all the lights went out. I don’t know. Maybe that was a message. Today it rained. Maybe that was a message. Maybe the raindrops are the key issues, but that’s what you have to decide today."

    Losada was sentenced to death and executed in 1997. Three years before Losada’s execution, Pena was disbarred for pocketing money that belonged to clients.

    DR. DEATH

    The Tribune investigation found 22 cases where the defense presented no witnesses during sentencing. In 18 others, the defense presented only one witness. One defense attorney who put on no case whatsoever later testified that he didn’t know he was allowed to present witnesses!

    At the sentencing phase of a trial, a lawyer can present evidence of a defendant’s brain damage, low IQ or childhood abuse to argue for mercy—against a death sentence. But such factors have actually been used against many defendants in Texas. Evidence of brain damage, a history of abuse or a defendant’s youth have been offered to argue that a defendant is more likely to commit future violence—one of the key factors jurors are told to consider in deciding on the death penalty.

    In 1991 Texas changed its sentencing guidelines, asking jurors to take into account any evidence that might reduce the defendant’s "moral blameworthiness." The Tribune points out that of the 131 inmates executed under Bush, 115 were sentenced before this new law took effect. In other words, they were sent to death row by jurors who were not allowed to consider a defendant’s background as cause for mercy.

    Terry Washington was executed in 1997. His attorneys never told the jury that he had been born with fetal alcohol syndrome, was brain damaged and mentally retarded with the mental capacity of a 7-year-old.

    In Wayne Stoker’s case, the District Attorney called Dr. James P. Grigson, a psychiatrist, to the stand to argue for the death penalty. Grigson never examined Stoker. But this didn’t stop him from testifying that Stoker was a sociopath who would "absolutely" be violent again.

    Among defense attorneys, Grigson has come to be known as "Dr. Death." From the mid-1970s through the late 1980s, Grigson helped send dozens of people to Texas’ death row. In the early 1980s, the American Psychiatric Association reprimanded Grigson twice and then expelled him from the group in 1995—finding his testimony unethical and untrustworthy.

    Here’s how Grigson would work with the prosecution to clinch a death sentence: The prosecution would ask a hypothetical question — "Based on the defendant’s criminal history, is he/she likely to commit a violent crime in the future?" Grigson would claim he could make such a prediction—even though in many cases, he had never even examined the defendant! He told jurors that some defendants would "most certainly" or "absolutely" be violent in the future. And this had a big impact on whether or not a defendant was given the death penalty. One juror in the Stoker case said, "You couldn’t help but listen to what he was saying. [He’s] a doctor. He had a lot of influence on what we decided."

    This type of testimony played a critical role in the cases of at least 29 of the 131 defendants executed in Texas under Bush. Of these 29 cases, Grigson testified in 16. Furthermore, Grigson says he has testified in 166 capital cases in Texas—and all but nine of these were for the prosecution. He charged $150 an hour and in the 1980s he was in such demand from prosecutors that, according to court records, he usually earned more than $150,000 a year.

    The Tribune investigation reveals that other psychiatrists have also been used by the prosecution in Texas to give this kind of testimony—presenting an "expert" opinion about a defendant’s future behavior—even though they too, had not even examined the accused. In one death penalty case, a psychologist testified that the defendant was more likely to commit future acts of violence because he is Hispanic.

    UNRELIABLE TESTIMONY AND EVIDENCE

    The Tribune investigation found that jailhouse informants—inmates who provide incriminating testimony about other inmates—played a role during the guilt or sentencing phase in at least 23 cases. Such testimony was often given in exchange for special treatment and was therefore highly unreliable.

    One example cited is the 1984 trial of David Wayne Spence, who was accused of a triple murder in Lake Waco. Seven jailhouse informants testified against him. All of them gave testimony that was not credible.

    One claimed Spence admitted the murders during a conversation in jail. At the time this exchange supposedly took place, Spence was not even locked up.

    Several informants who fingered Spence later revealed that investigators gave them details of the crime, statements of other witnesses, and showed them photos of the crime-scene and the autopsy. They said in exchange for their cooperation they got special privileges—like unlimited cigarettes or unsupervised visits with wives or girlfriends. Some got recommendations for leniency. Several later recanted their testimony.

    There was no physical evidence found at the crime scene to link Spence with the murder, and even top police officials in the case said they doubted he was guilty. Still, Spence was executed in 1997.

    In 1996 a convenience store clerk in Hale Center, a small town just north of Lubbock, was shot and killed. Five months later, Carey Todd, a man prosecutors said was a drug dealer, went to police and said Wayne Stoker was the murderer.

    Todd said he didn’t receive anything for his testimony. But according to court records, Todd was facing drug and weapons charges in a nearby county, and on the day he fingered Stoker those charges were dropped. Todd also received a $1,000 "crime stoppers reward." Attorneys for Stoker who later filed his appeal uncovered a note by a prosecutor in a court file pertaining to Todd that said: "Dismissed: this defendant helped Terry McEachern DA solve a murder case."

    Prosecutors claimed a shell casing found in Stoker’s car linked him to the murder. But other documents found by Stoker’s appellate attorneys showed that he didn’t own the car when the crime occurred—he bought it months later.

    Jurors from the Stoker case recently said in interviews that had they known about some of the things that have since come out about the case, they might have reached a different verdict.

    David Wayne Stoker was executed on June 16, 1997.

    The Tribune also found that highly unreliable evidence has been used to send people to death row in Texas. A recent national study of 62 convictions—where a convicted defendant was cleared by DNA—found that in 18 cases, prosecutors had used hair analysis to help win the original conviction. Such evidence based on hair comparisons is very unreliable. But the Tribune investigation found that such evidence was used in at least 23 cases.

    One "expert" used in Texas to give testimony about "hair evidence" has been Charles Linch. He was called to the stand in the cases of two people who were subsequently executed under Bush. In a third death penalty case, Linch testified about other forensic evidence.

    According to the Dallas Morning News, Linch was committed in 1994 to a psychiatric ward. Because of depression and drinking, doctors had considered him a danger to himself or others. But Linch was temporarily released to provide incriminating hair-analysis testimony against Kenneth McDuff. The defense was not told about Linch’s situation—even though his commitment to a psychiatric ward might have been used to challenge his credibility. McDuff was executed in 1998.

    Dr. Ralph Erdmann is another "expert" who Texas prosecutors have frequently used to testify in death penalty cases. Erdmann testified in the cases of six people who have been executed under Bush.

    In 1994 Erdmann pleaded no contest to seven felonies related to falsified evidence and botched autopsies, and surrendered his medical license. In one case, Erdmann claimed to have examined organs that had been surgically removed years before the victim’s death. And in another case, he said he had examined a woman’s brain—even though there was no incision in her head.

    Continued

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