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Thursday, May 28, 2020

A Long Journey

By: Michael King
The Texas Observer
June 5, 1998

    Every few days, the Public Information Office of Texas Department of Criminal Justice issues a list of “Scheduled Executions.”  The list is usually two pages long, although in 1997 it occasionally grew to three pages.  The schedule sets forth the execution dates for the next few months, usually listing about twelve to fifteen prisoners.
It also provides the full name of the prisoner, his or her official TDCJ number, date of birth, age, race (W, B, H, or “Other”), the date he or she was “received” on death row, the time of execution (by law, always “After 6:00 p.m.”), and the county of the offense and conviction.  A completed execution is not directly noted.  When a prisoner is executed, his or her name simply disappears from the top of the list.  Similarly, should a stay be granted, the name receives an asterisk and drops temporarily to the bottom, not to reappear until a new date is scheduled.  The effect is a grisly version of the pop music Top 40, with convicts moving up, down, and off the charts according to the unpredictable winds of the Texas courts.  Of late, the winds have gotten steadier, and they blow toward Huntsville’s Walls Unit, home to the execution chamber.
    The schedule also summarizes “Execution Statistics” in Texas since the state restored the death penalty in 1982.  In 1997, the state killed thirty-seven people, a new record.  This year, as of May 30, there have been eight executions.  The “Grand Total,” since 1982, is 152.
    For those opposing capital punishment, who range from prison activists to death penalty litigators to that national and international abolitionist movement, the rising numbers of executions have been undeniably discouraging.  Recent changes in federal and state laws – as intended – have made it almost impossible to stop executions in the courts, and while a few lawyers continue to fight for small, crucial victories, they do not believe litigation will provide a final answer.  “It’s a political question, it’s not a legal question,” said Jay Jacobson, executive director of the American Civil Liberties Union of Texas.  “We had our moment of trying to say that the death penalty’s unconstitutional.  That moment is over, I don’t think that’s going to happen again.  The death penalty will not be changed in the court system.”
    Outside the courts, meanwhile, the state’s increasing reliance on execution has begun to generate a much broader opposition movement.  Recently, the United Nations and Amnesty International have published reports criticizing the death penalty system in Texas, and current polls indicate that, if given a choice, most citizens, including Texans, would choose life without parole sentences over capital punishment – an alternative consistently opposed by conservative politicians and prosecutors, who promote the still undemonstrated but politically useful notion that the death penalty acts as a deterrent.
    It is impossible to be certain, of course, whether those 152 executions have deterred other Texans from committing capital crimes.  But as Abe Bonowitz of Amnesty International points out, “The day after Karla Faye Tucker was executed – the most publicized execution in recent memory, you would have to be living under a rock not to know about it – somebody shot a policewoman in Houston.  She didn’t die, but somebody tried to kill her.  The death penalty doesn’t deter anything.”
    Bonowitz was in Austin last month helping to organize and promote the anti-death penalty Journey of Hope, which will take place in Texas from May 30 to June 14.  He was accompanied by the Journey’s founder, Bill Pelke, a retired steelworker from Indiana.  The Journey of Hope organization (its odd officially name is “Journey of Hope…From Violence to Healing”) is an outgrowth of Pelke’s work as a board member of Murder Victims’ Families for Reconciliation, a national organization of victims’ relatives opposed to the death penalty.  The first Journey was a 1993 Indiana event sponsored by MVFR and led by Pelke, who has since helped organize Journeys – two-week occasions for rallies, demonstrations, lobbying, and public education – in four other states.  Now a distinct organization, the Journey sponsors a major, two-week event in a different state each year.  At other times, Pelke and friends travel around the country, meeting with abolitionists and crime victims’ groups, and organizing against capital punishment.
    In recent years victims’ rights groups, such as Houston’s Justice for All, have been primarily distinguished by their heavily-publicized positions against crime and criminals, and their strong support of “tough-on-crime” measures like capital punishment.  It’s become unusual to find a crime victim willing to defend any form of leniency, let alone a victims’ organization devoted to working against the death penalty.  Pelke says he and his Journey colleague oppose all violence, including that of the state.  “By executing people, all we’re doing is creating another set of victims’ family members, and we already have enough victims’ family member.”  For some time, he’s wanted the annual Journey event to take place in Texas.  David Atwood, president of the Texas Coalition to Abolish the Death Penalty, welcomes the activism of the murder victims’ families, “because they automatically take away one of [the death penalty supporters’] arguments: that is, ‘You don’t know how I feel.’’  Wherever they go, the Journey organizers attempt to engage with them, or tell them how they should feel,” said Pelke.  “We try to share own experiences, and share our healing.”
    Pelke is a soft-spoken, unassuming man of fifty, with salt-and-pepper hair and a grainy, cigarette-etched voice.  When he recounts the compelling story of his personal decision to oppose the death penalty, it’s apparent he’s done so many times.  Yet at difficult moments, his voice lowers with emotion and his eyes glisten with tears.  In May of 1985, Pelke’s grandmother, Ruth, who lived alone in Gary, was murdered by four teenage girls, ninth-graders who skipped school during lunch and went looking for money to play arcade games.  One of them knew an old neighborhood lady who taught bible lessons.  Ruth Pelke was clubbed with a vase and stabbed thirty-three times with a butcher knife; the girls got ten dollars and her car keys, went joyriding with friends, and were quickly identified, captured, tried, and convicted.  Three were sentenced to prison terms varying from twenty-five to sixty years.  Paula Cooper, the fifteen-year-old considered by prosecutors to be the ringleader, was sentenced to death in July of 1986.  At sixteen years of age, she became the youngest person on death row in the United States.
    Pelke says when Cooper was sentenced, he had no disagreement with the death penalty.  Indeed, he believed that if the state did not seek execution, it would mean that his grandmother’s death wasn’t important enough to merit a capital trial, “and I believe my grandmother was a very important person.”  The brutal details of the crime, heavily covered in the national press, and the knowledge that Pelke’s father had discovered his mother’s body, made it seem only right to Pelke that the murderer should die in return.
    A few months later, on November 2, 1986, Pelke was on the night shift at the steel mill, alone in his overhead crane, waiting for an assignment.  He took the opportunity to pray about troubling personal problems, including a recent breakup with his girlfriend.  
    “I began to picture someone,” he said, “who had a whole lot more problems than what I had.  I pictured this young girl on death row, looking up, nowhere in particular, saying, ‘What have I done, what have I done?”  Her parents hadn’t even come to the sentencing hearing.  I pictured her as very much alone.
    “I started thinking back to the trial, and I recalled when she was sent off to death row, with the tears coming down her cheeks.  She was sixteen when she was sentenced.  And I recalled her grandfather, as the judge was delivering the sentence, he began to wail, ‘They’re going to kill my baby, they’re going to kill my baby.’  The judge had the bailiff escort him from the courtroom, and I saw tears running from his eyes.
    “It was that point, that I remembered a picture of my grandmother … a very beautiful picture, taken about a year before her death.  But now as I saw her, there were tears coming down my grandmother’s cheeks.  I knew they were tears of love and compassion, for this girl and her family, and I felt she wanted someone in our family to have that same compassion.  I felt like it fell on my shoulders.  I knew my grandmother’s faith, the Christian faith, and what that taught about forgiveness … So I said to myself, Forgiveness is the right thing, and that’s what I should do.  I saw those tears in my grandmother’s eyes, tears of compassion, and I felt that I must be the one to have that compassion.  I begged God, in tears, to please give me compassion for this girl and her family.”
    Pelke found himself forgiving Paula Cooper for his grandmother’s murder, and as of that moment, “Two things became clear: I no longer wanted her to die in the electric chair; and I no longer pictured my grandmother brutally murdered with a butcher knife, but instead, who she was, what she believed, and what she stood for.”  He corresponded with the imprisoned Cooper, told his skeptical family he had forgiven her, and wrote to the local paper saying he no longer wanted her to die.  “People suddenly stopped writing in to demand her execution.”
    At first, Pelke’s compassion was particular and personal, and he was unconcerned about the larger issue of the death penalty.  But Italian journalists got wind of his change of heart, and flew him to Rome for two weeks of interviews and news stories.  The ensuing public pressure in Indiana over Cooper’s case and subsequent appeals eventually resulted in a commutation of her death sentence to sixty years in prison.  “Paula is not the same person she was when she committed the crime,” said Pelke.  “As a child, she had been much abused, and it had taught her hate.  That hate took her to my grandmother’s house.  People have shown compassion to her, and she has responded.”  And despite the initially bitter disapproval of his family, especially his father, Pelke found himself drawn into the abolitionist movement.  “It was tense between us for several years, but now my parents have forgiven me, and we’re close again.  But we don’t talk about these things.”
    As Pelke educated himself about the death penalty, he became completely opposed to capital punishment.  “It’s all poor people on death row.  If the victim is white, there is much more chance of getting the death penalty.  If the victim is black, chances are they aren’t even going to solve the crime.  There are many innocent people on death row – outright innocent, or innocent of capital murder.  And then, on these marches, I met family members of death row convicts.”  He also met victims’ family members, many still completely consumed with rage and demanding vengeance.  “That anger and rage, that will destroy you.  It’s like a cancer.”  While his own commitment is profoundly religious, he emphasizes that people of all beliefs are welcome in the abolitionist movement.
    What does he say to those who insist that murder is different, irrevocable and therefore unforgivable?  “I’ve studied the Bible, and when Jesus says to forgive, it’s forgive everything.  It’s not, Forgive everything but murder.  And when I say to you, ‘I forgive you,’ that’s not for your benefit, that’s for my benefit.  You can do something to me, to make me angry, and you could leave and I’ll never see you again.  But if I’m going to be mad at you, is that going to hurt you?  It’s going to hurt me.  So forgiveness is for the person that forgives, and it does bring healing.  It doesn’t matter what somebody’s done to you, you’re supposed to forgive them.”
    For the handful of lawyers who have dedicated their careers to defending death-row prisoners, that national swing to the right has been, not a journey of hope, but a discouraging treadmill of defeat and disappointment.  Maurie Levin and Raoul Schonemann are young Austin attorneys, formerly staff members of the Texas Resource Center.  The Resource Center, one of many nationwide, was a federally funded legal assistance office which provided and recruited attorneys for indigent death row prisoners.  Since the 1994 Republican Congress cut the program, some Resource Centers have managed to survive on state or private funding, but the Texas Center, with more than 90 percent of its budget dependent on federal funding, closed in September of 1995.
    Levin and Schonemann have not given up, continuing to do death penalty work as solo practitioners.  They are among the small cadre of Texas lawyers who take on, always for very little pay and often entirely pro bono, the largely hopeless and thankless tasks of arguing state and federal habeas corpus appeals in capital cases.  Although quite a few attorneys, particularly urban criminal lawyers who can make a living on court appointments, defend in capital cases at the trail level, there are very few who willingly prepare state and federal “habeas appeals” – appeals raising constitutional issues left unresolved at trail or on direct appeal.  Levin devotes her time entirely to federal habeas appeals; Schonemann, in addition to his appeal practice, works half-time in a death penalty clinic at the U.T. Law School, an appointment he shares with colleague Rita Radostitz.
    The three attorneys share Spartan, receptionless offices on the second floor of an old office building that could easily serve as a set for a film noir.  Among several cases in progress, Levin has recently been working on the posthumous case of Lesley Gosch, who was executed April 24, despite a district court ruling that the state’s clemency procedure, administered by the Board of Pardons and Paroles, violates, among other laws, both state constitutional protections concerning due process and the Open Meeting Act.  Gosch asked that the appeal continue after his death, and Levin is working with his family to maintain the court action, which in theory could force the Board and the Governor to resuscitate -- or at least to justify – a thoroughly moribund clemency process.  Under the current system, the Board refuses even to meet to deliberate the clemency requests.  Instead, the members say they simply review the files, and transmit, by phone or fax, their consistent votes to reject clemency.  The Governor has stated that hewill consider clemency only in cases of demonstrated “innocence” – which in law refers only to pardon decisions, and is irrelevant to clemency.
    Sitting in their small office library, Levin and Schonemann summarized the absurd restrictions and difficult circumstances of capital defense work in Texas.  Already bad, they got rapidly worse with the federal defunding of the Resource Centers.  That was followed by the 1996 Anti-Terrorism Act, passed by Congress with the support of the Clinton Administration.  It had little to do with terrorism, but one of its miscellaneous law-and-order previsions was an attempt to “streamline” the process of death penalty appeals by establishing strict time limits and creating a two-track system.  To be eligible for the fast track or “unitary” system, under which direct appeals and state habeas appeals proceed simultaneously, states were required to provide court-appointed state habeas lawyers.
    The Texas Legislature initially budgeted $1.8 million for a habeas program to be administered by the Court of Criminal Appeals.  At first, attorneys were willing to sign up for what looked like a part-time state sinecure.  But once the Court notified interested attorneys that the overall per case budge would be capped at $10,000 – enough, that is, for about two weeks’ work on cases that, if defended adequately, might take many months and any thousands of dollars more in expenses – the volunteers virtually disappeared.  Although the law requires “competent counsel,” there are no written standards, and the Court therefore began conscripting lawyers for state habeas appeals – that is, assigning extremely complex capital punishment cases to lawyers who might have no capital defense experience, or even with little legal experience at all.  If they performed conscientiously, and accurately submitted their expenses to state administrators, the costs were likely to go unpaid for many months, and might be rejected altogether.  Predictably, many appointed attorneys do rushed, shabby, and inadequate work, severely handicapping any lawyers who must come after them in federal court.  The state budget has since been increased, although it remains inadequate according to established national standards, and even required emergency appropriations late in 1997.  Some lawyers waited months for payment, only to discover their fees had been radically slashed, despite assurances of payment from the Court.  Some established and wealthy law firms will occasionally accept select cases pro bono, but with more than 450 inmates on death row, there are simply not enough attorneys to go around.
    The result, according to Jim Marcus of the Texas Defender Service, a small Houston non-profit firm established by former Resource Center lawyers, is that both the clients and the courts are worse off, in a system that is in fact more expensive than before.  “People need to be aware of how much the new system is costing them,” said Marcus, “especially after the Resource Centers were eliminated.  That was a very cynical political maneuver, because conservative politicians were saying, ‘We’re paying $24 million a year for these death penalty Resource Centers to help convicted killers,’ and everybody jumped on the bandwagon.  Nobody pointed out that these convicted killers would have the same constitutional right to a lawyer, whether the Resource Centers were there or not.  Now we’re paying appointed [federal] attorneys up to $125 an hour, instead of just paying Resource Center lawyers a low salary to do the same work.  The cost of death penalty defense, still paid by federal taxes, has doubled, since the Resource Centers were defunded.”
    Experienced death penalty litigators recount numerous horror stories, of unprepared, unprincipled, or just plain incompetent attorneys, dragged into capital cases by the state Court of Criminal Appeals – which then consistently votes to affirm capital convictions, however embarrassing the trail record.  In one recent capital case Marcus argued, the previously appointed state habeas attorney willingly provided an affidavit admitting his own incompetence.  He said he had not understood the statute and therefore failed to file necessary claims – which therefore could never be raised in future appeals.  The Court of Criminal Appeals affirmed the conviction anyway, without so much as addressing the issue of the attorney’s incompetence.  “For people watching the system,” said Marcus, “it’s begun to be scary … For any other service, even car repair, people would be suing, because it is a completely inadequate process.”
    Levin, who has stopped accepting state habeas cases altogether because of the administrative chaos, says the federal system is better organized and better funded.  But since the new legislation also requires federal courts to provide greater deference to state court judgments, there is seldom much hope of getting reversals at the federal level, especially in the extremely conservative Fifth District, which includes Texas.  “Sometimes you had a chance [in federal courts].  But with the new federal law, good jus=des’ hands are really tied, as far as reversing any of that.”
    Levin and Schonemann agree that there is little hope for significant change in the courts, at least in the short term.  “I have no optimism,” says Levin.  “What we’re trying to do in [Gosch’s] case, maybe that will have this much effect” – she gestured with the space between her thumb and finger – “or less, on the clemency process.  But even then it’s governed by an elected governor and an appointed board.  So I have no optimism there.
    “It’s one of the difficult things about doing these cases.  Unless you get a decent judge – and by decent I mean only, less than only ready to stamp “Approval” on the execution decision, the conviction – it doesn’t matter what the issues are in your case.  It doesn’t matter how unjust it was, it doesn’t matter who your client is, it doesn’t matter how unfair the conviction was.  It’s going to be affirmed, and it’s going to be approved … As far as death penalty cases, it’s outcome determinative, and [the judges] find a way to do it.  And they change the law, all the time, in order to affirm death sentences.”
    Schonemann is quietly pragmatic.  “Lawyers like us are not trying to ‘end the death penalty’ in some categorical way, through litigation … What we are doing is much more modest in scope: represent individual people, and try to save those individuals.  And try, in the process of that, to get the message out, the individual stories of just what is happening…
    “I share Maurie’s pessimism,” Schonemann added.  “There is no silver bullet out there, to do anything about the death penalty through the judicial process.  It’s just going to keep rolling along.  But that doesn’t mean we can’t accomplish something, by adjusting our sight, our objectives.”
    Walter Long, also of Austin, was a member of the team of attorneys attempting to save Karla Faye Tucker.  Working desperately in the final days, they watched every appeal denied after cursory court review, concluding with the pro forma rejection of clemency by the Board of Pardon and Paroles and the Governor.  Asked how he keeps doing capital appeals work in spite of almost certain failure, Long paused for a long time, and then responded quietly, “That’s hard.  I would say, it has to do with my beliefs.  I firmly believe that it’s wrong, for any of us, to make the divine choice to take someone else’s life – whether it’s a murder on the street, or it’s the state, or it’s us, as components of the state.  It’s devastating to work on a case in which the person is killing.  But one needs to keep going.”
    For those who have been diligently working death penalty cases in Texas for years, the current situation of accelerated executions, constricted appeals, and diminished resources its increasingly disheartening.  Mani Welch, the former director of the Texas Resource Center, says that to do the work at all, a lawyer develops emotional defenses.  “When you do something on a daily basis, you figure out how to survive … But you still do feel overwhelmed.  When I look at the execution lists, I just feel overwhelmed … You cannot help but feel the pressure.  Because there is a sense that if you have an innocent person, who’s really getting screwed by the system, and who is not deserving of death, they’re probably going to get executed anyway.”
    Nonetheless, Welch believes that the work done by the lawyers and the abolitionists will eventually have an effect.  “I’m fifty-four years old, and the older you get, the more you realize that things change.  They don’t always change for the better, but when you have something that is so egregious, and you have people that are exposing the injustices over long periods of time, gradually people wake up.  And I think they change back, when people start forgetting … It’s up to us to struggle, in the time that we’re here, with these things that we see that need to be changed – whether or not they’re going to be changed in our lifetime.”
    On the evening of April 29, Jay Jacobson stood outside the Governor’s mansion, taking part in the small vigil marking the execution of Frank McFarland – the 150th such execution in Texas since 1982.  “I don’t think there is a legal avenue,” Jacobson said.  “The avenue is to hit the streets like we’re doing right now, in this, and in the Journey of Hope, and trying to change it politically.  That, ultimately, is the only answer.
    “We may be at sort of a balance in the pendulum, when we can look to ourselves, look inwardly, a little bit more, and try to find out, what is right and good and just, which we haven’t done since, oh, 1980.  I think that’s going to be a detour for this country, in terms of what we’re all about, and what we care about.  I think people are ready to come back – I hope people are ready to come back – to the principles of this nation.