MEMORANDUM

To: Interested Persons

From: National Coalition to Abolish the Death Penalty Date: January 5, 2005 Re: Alberto Gonzales’s Involvement in the Texas Clemency Process1

I.

INTRODUCTION

Alberto Gonzales served as General Counsel to Governor George W. Bush from 1995 to 1997. In his role as General Counsel, Mr. Gonzales prepared memos summarizing the claims of at least 60 death row prisoners facing imminent execution. The memos ranged in length from one-and-a- half to seven pages.2 Most were dated the day before or the day of the scheduled execution. Records from the Texas Archives indicate that Mr. Gonzales was scheduled to meet with Governor Bush for approximately half an hour on the morning of a scheduled execution. Based upon the clemency memo and a thirty-minute meeting, Governor Bush determined whether a death row inmate facing execution had received a fair trial and could lawfully be put to death. In the end, Governor Bush decided that all but one person should be executed.3 We reviewed the cases of 57 death row inmates facing imminent execution during Mr. Gonzales’s tenure.4 In each case we examined the clemency memo prepared by Mr. Gonzales and published court opinions in the case. In five of the cases, we examined the clemency request filed with the Texas Board of Pardons and Paroles and Governor Bush.5 In 31 of the cases reviewed, it appears that Mr. Gonzales summarized at least some of the salient facts and arguments supporting a grant of clemency. These memos noted, for example, outstanding claims of innocence, allegations that a jury had failed to consider material evidence, signs of mental impairment, and personal mitigating factors such as severe childhood abuse.6 In 26 cases, Gonzales’s clemency memos omit comparable information that would have been

1
2 3

Any document cited herein is available upon request. Gonzales’s clemency memos can be accessed at http://www.ncadp.org.

Governor Bush commuted the death sentence of Henry Lee Lucas to life imprisonment after an investigation by the Office of the Attorney General determined that the confession upon which his conviction and sentence were based was false. In three cases for which Mr. Gonzales prepared clemency memos, the scheduled execution date was stayed because the death row inmate had not yet exhausted his judicial appeals. In almost half of the cases, inmates facing imminent execution did not file a formal petition with the Texas Board of Pardons and Paroles seeking clemency. The clemency petitions that we reviewed were submitted by Billy Conn Gardner, Irineo Tristan Montoya, David Wayne Spence, David Wayne Stoker and Terry Washington.
6
5 4

For example, Gonzales’s clemency memo for Ronald K. Allridge, who was executed June 8, 1995, states that Allridge suffered from schizophrenia and a brain disorder that caused a lack of emotion and impaired his ability to adapt and regulate his behavior. The memo further states that trial counsel did not present evidence of Allridge’s mental illness to the jury during the sentencing phase of trial. Memorandum from Alberto R. Gonzales to Governor George W. Bush dated June 7, 1995, re: scheduled execution of Ronald K. Allridge on June 8, 1995, at 12:01 a.m.

equally relevant to determining whether a particular death sentence was lawful and appropriate. We can discern no pattern to explain the different treatment. In the end, Mr. Gonzales’s handling of the clemency process appears totally arbitrary. Even though in each case an individual’s life was at stake, Mr. Gonzales did not consistently present Governor Bush with the information necessary to make a fair clemency decision. In so doing, he denied prisoners with serious claims about the accuracy, appropriateness and lawfulness of their death sentence the opportunity for a full and fair hearing before their court of last resort— in this case, the Texas Board of Pardons and Paroles and the Governor. Mr. Gonzales’s failure— which encompasses not only the substantive omissions from his memos, but the brevity of his summaries and meetings with the Governor—calls into serious question Mr. Gonzales’s commitment to due process in practice as opposed to form. We urge the Senate Judiciary Committee to probe Mr. Gonzales’s actions in these cases carefully to ensure that they do not reflect a perspective that that values administrative convenience and expediency over due process and fairness.

II.

BACKGROUND
A. The Death Penalty in Texas

Since 1977, 117 people nationwide, including 8 in Texas, have been released from death row because of actual innocence.7 The most common reasons for the erroneous convictions and death sentences have been: (1) misconduct by police or prosecutors (e.g., in withholding exculpatory evidence, knowingly eliciting false testimony, coercing confessions, or pursuing conviction despite a lack of sufficient evidence); (2) discredited witness testimony (e.g., from jailhouse informants seeking favorable treatment or eyewitnesses with faulty recollections); and (3) newly discovered evidence excluding the inmate as a possible perpetrator of the crime.8 Texas state and federal appeals courts often fail to thoroughly evaluate the legality and appropriateness of a capital conviction or death sentence.9 Their review is severely compromised
7

Innocence and the Crisis in the American Death Penalty, Death Penalty Information Center, September 2004. (The report lists 116 inmates exonerated from death row. Ernest Ray Willis was exonerated from Texas’s death row on October 6, 2004, after publication of the report.) DPIC compiles its innocence list using objective criteria only, listing only former death row inmates who have: (a) been acquitted of all charges related to the crime that placed them on death row; (b) had all charges related to the crime that placed them on death row dismissed by the prosecution; or (c) been granted a complete pardon based on evidence of innocence. Using a less conservative estimate that takes into account evidence of innocence that led to sentence commutations or charge reductions, although not complete exoneration, the number of innocent people is approximately 135.

See generally Innocence and the Crisis in the American Death Penalty, Death Penalty Information Center, September 2004. In 2000, Columbia University Law School released a comprehensive study of the death penalty in the United States, revealing that 68% of all death penalty cases between 1973 and 1995 contained errors so serious that the conviction or death sentence had to be overturned.
9

8

Innocence and the Crisis in the American Death Penalty, Death Penalty Information Center, September 2004. The case of Henry Lee Lucas is illustrative of Texas appellate courts’ reluctance to overturn death sentences. Lucas confessed to hundreds of unsolved murders around the country—including that of Jimmy Hoffa—and was sentenced to death in a case known as the “Orange Socks” murder. The Office of the Attorney General conducted an investigation of Lucas’s claims, concluding in its “Lucas Report” that he had perpetrated a massive hoax on law enforcement authorities. In the case for which he was sentenced to death, no physical evidence linked Lucas to the crime; in fact, work records and other evidence conclusively demonstrated that Lucas was in Florida at the time of the murder. Despite this evidence, and an affidavit from the Attorney General stating that “no rational trier of fact could find beyond a reasonable doubt that Henry Lee Lucas committed the ‘Orange Socks’ murder,” the Texas Court of Criminal Appeals upheld Lucas’s death sentence.

2

by several factors, including: procedural barriers that limit courts’ ability to reach the merits of a claim; the ineffectiveness of trial counsel to preserve issues for review; and appellate courts’ extremely narrow application of the “harmless error” standard of review. As a result, Texas courts overturn capital convictions and death sentences in less than one-third of all cases—the lowest rate of any state.10 Nationwide, approximately two-thirds of all capital convictions or death sentences are overturned because of serious error.11 B. The Executive Clemency Process in Texas

Executive clemency has been described by the Supreme Court as the “fail-safe in our criminal justice system.”12 Every state that retains the death penalty employs some process that allows inmates facing execution to seek clemency. The decision to grant clemency is not constrained by the same procedural barriers that typically limit courts’ appellate review. The factors informing a clemency determination generally include, but are not limited to, post-trial evidence of innocence, a prisoner’s rehabilitation, the excessiveness of punishment in relationship to the crime, and the diminished mental capacity of a defendant. In Texas, an inmate seeking clemency files a petition with the Texas Board of Pardons and Paroles. The Board reviews the petition and votes on whether to recommend commutation. If a majority of the Board members vote for a commutation, the Board recommends to the Governor that clemency be granted. The Governor has full discretion to either accept or reject the Board’s recommendation for clemency. If the Board votes against clemency, the Governor has no independent power to commute the sentence. The Governor, however, has the power to grant a prisoner one 30-day stay of execution without recommendation from the Board. Any further executive reprieve requires approval by a majority of the Board. While on its face, the Texas clemency framework appears to limit the Governor’s role in the clemency process, as a practical matter, the Governor has a great deal of direct and indirect influence over the process. The Governor appoints each of the Board’s 18 members, may set criteria for the Board to consider when reviewing clemency requests, and may request that the Board conduct a full clemency hearing in any case he deems appropriate.13 In fact, in the case of Henry Lee Lucas—the only person whose death sentence was commuted during Mr. Gonzales’s tenure—Governor Bush specifically requested that the Board of Pardons and Paroles review the case because of longstanding questions about his guilt.14 After examining Lucas’s claims, the Board voted 17-1 in favor of granting clemency. Mr. Gonzales’s failure in some cases to fully present and discuss critical issues undercut the fairness of the clemency process in Texas by preventing the Governor from accurately determining when further due process was required to assure the reliability and appropriateness of the death sentences before him. In half of the cases for which Mr. Gonzales prepared clemency memos between 1995 and 1997, he only vaguely noted—or altogether omitted—material facts and arguments supporting reprieve. The remainder of this report will
10

Lethal Indifference: The fatal combination of incompetent attorneys and unaccountable courts in Texas death penalty appeals, Texas Defender Service (2002).
11

James S. Liebman, et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 Tex.L.Rev. 1839 (2000). Herrera v. Collins, 506 U.S. 390 (1993). Killing Without Mercy: Clemency Procedures in Texas, Amnesty International USA (1999).

12 13 14

See fn. 9, supra.

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focus on particular memos prepared by Mr. Gonzales that omit: (i) evidence of the state’s failure to comply with international law; (ii) evidence suggesting actual innocence; (iii) the fact that jurors did not hear substantial mitigating evidence that likely would have persuaded them not to impose a death sentence; and (iv) evidence of official misconduct affecting the fairness of a death sentence.

III.

THE GONZALES CLEMENCY MEMOS
A. Clemency Memo Omitting Texas’s Failure to Comply With International Law: The Case of Irineo Tristan Montoya

In a letter dated June 12, 1997, the U.S. State Department expressed serious concerns about the pending execution of Ireneo Tristan Montoya. Montoya was a Mexican national whose conviction and death sentence were based in significant part on a signed confession that Montoya later claimed he did not understand because it was in English. Mr. Gonzales conceded that Montoya had not been afforded the opportunity to contact the Mexican Consulate for assistance with his capital trial, as required by Article 36 of the Vienna Convention on Consular Relations, but nevertheless focused on technical legal arguments that might permit Texas to proceed with the execution.15 Montoya was executed on June 18, 1997, over the objections of the Mexican Government. Mr. Gonzales’s willingness to place the expediency of a scheduled execution and the administrative burden of providing a remedy to thousands of Mexican nationals like Montoya whose rights had been violated, foreshadowed his later approach to international law, which in his view, could permit deviation from the longstanding ban on the torture of prisoners. B. Clemency Memos Omitting Discussion of Evidence of Actual Innocence

In at least six cases for which he prepared clemency memos for Governor Bush, Mr. Gonzales failed to raise material information suggesting that the condemned inmate have been innocent of the crime for which he was convicted and sentenced to die. • David Wayne Spence was executed in April 1997 despite compelling evidence that a known felon repeatedly admitted to the crimes for which Stoker was sentenced to die—proof of which was allegedly suppressed by the state. Mr. Gonzales’s clemency memo omits the following evidence of Spence’s innocence, as set forth in his clemency petition:16 (a) Evidence strongly suggested that Terry Harper, a repeat felon with a lengthy arrest record, committed the crime for which Spence was sentenced to die. (i) Several witnesses saw Harper in the park on the night of the murder17 (ii) One witness saw Harper’s car parked next to the victims’ car in the park18

15 16

Letter from Alberto R. Gonzales to Michael J. Matheson dated June 18, 1997. Spence Clemency Petition (undated). 17 Id. at 2. 18 Id.

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(iii) (iv) (v)

Seven civilian witnesses reported to police that Harper had bragged about committing the crimes19 Harper allegedly disclosed details about the killing before the victims’ bodies had been discovered20 The victims’ friend told police that Harper was one of three potential men who started dealing drugs with one of the victims shortly before the murders21

(b)

Evidence excluded Spence as the possible perpetrator. (i) Several witnesses reported to police that they saw the victims alive long after the time that prosecutors alleged that Spence had abducted and killed them22 (ii) The FBI concluded that foreign hairs found on the victims’ clothes were not consistent with Spence23 (iii) Forensic evidence—including autopsy reports, crime scene photographs, and blood stain patterns—was inconsistent with the state’s theory that Spence killed the victims in one park, then transported them to another park, where they were found (iv) Spence’s car, which the prosecution claimed was used to transport the victims’ bodies between parks, was thoroughly searched and turned up 20 hairs—none of which matched any of the three victims24 Law enforcement authorities refused to follow up on any other suspects, fabricated evidence to implicate Spence (i) The forensic evidence (hairs found on victims’ clothing) was never tested on any suspect other than Spence and his codefendants25 (ii) Jailhouse informants who testified against Spence have since recanted, stating that they fabricated testimony in exchange for leniency and privileges (including private visits with wives and girlfriends in the district attorney’s offices) (iii) The prosecution failed to disclose police reports implicating Harper in the crime26 (iv) The prosecution failed to disclose that co-defendant and witness, Gilbert Melendez, who was also questioned about his involvement in the crime, would receive complete immunity in exchange for testifying against Spence27 (v) Spence’s first co-defendant gave two false statements implicating Spence, recanted them, refused to testify during Spence’s first trial, but was subsequently intimidated into

(c)

19 20

Id. at 15. Id. 21 Id. at 17. 22 Id. at 2. 23 Id. at 3, 11. 24 Id. at 12. 25 Id. at 3, 11. 26 Id. at 14. 27 Id. at 3.

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(vi) (vii)

testifying during Spence’s second trial by threats of prosecution; the witness has since admitted under oath that his testimony against Spence was false28 Spence’s second co-defendant admitted in a sworn statement that his testimony against Spence was fabricated and induced by threats of prosecution by the state The sworn testimony of fellow law enforcement officers supports the allegation that the police officer initially responsible for conducting the murder investigation, who retired before closing the case, subsequently found employment as a guard in Spence’s jail; while there, he openly fed Spence’s fellow inmates details about the crime, showed them crime scene photographs and autopsy photographs, and discussed witness statements29

Not only did Mr. Gonzales’s clemency memo for Spence omit critical information regarding his claim of innocence, but it also provided an unusually strong proprosecution bias in its presentation: * * * * * • It characterized the attempt to prove Spence’s innocence as a “crusade”; It reported that the “compelling evidence regarding Spence’s guilt” included seven inmates who “all testified to highly incriminating statements of various sorts made by Spence, and they all denied receiving any promises or inducements to testify”; It referred to the police reports inculpating Harper as the perpetrator “so-called ‘exculpatory’ police reports”; It summarily dismissed Spence’s allegations of prosecutorial misconduct by concluding that the district attorney who prosecuted Spence “says that everything the Waco law enforcement authorities possessed was turned over to the defense”; It characterized as “evidence of guilt” the “absolute belief” of the assistant attorney general and Spence’s co-defendant’s counsel that Spence was guilty.30

David Wayne Stoker was executed in June 1997 despite evidence that another person, possibly the prosecution’s key witness, committed the crime for which he was convicted. Mr. Gonzales’s clemency memo omitted the following evidence bearing on Stoker’s claim of innocence:31 (a) The state’s key witness against Stoker, a confidential police informant who provided law enforcement authorities with the only physical evidence linking Stoker to the crime for which he was convicted, admitted that he set Stoker up. The state’s key witness, Carey Todd, was a confidential informant who had arranged a drug transaction involving Stoker.32 Following the murder for which Stoker was eventually convicted, Todd approached a law enforcement officer, stating that Stoker owned a gun like that used in the shooting. The

28 29

Id. at 3. Id. at 21. 30 Memorandum from Alberto R. Gonzales to Governor George W. Bush dated April 3, 1997 re: scheduled execution of David Wayne Spence on Thursday, April 3, 1997, at 6:00 p.m. (emphasis in original).
31

See Stoker Clemency Petition dated May 23, 1997; Memorandum from Alberto R. Gonzales to Governor George W. Bush dated June 16, 1997, re: scheduled execution of David Wayne Stoker Monday, June 16, 1997, at 6:00 p.m.; Stoker v. State, 788 S.W.2d 1 (Tex.Crim.App. 1989).
32

Stoker Clemency Petition, at 10-11.

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officer expressed interest in seeing the weapon.33 Subsequently, Todd brought the gun to the police and said that Stoker gave him the gun and asked for his help in killing two acquaintances. The gun was identified as the murder weapon. According to a defense witness, Stoker had fixed the trigger on the gun for Todd (thus leaving his fingerprints, which was introduced as evidence against him.) Another defense witness testified that Todd admitted to setting Stoker up “to take the big fall.”34 (b) Both state witnesses who testified that Stoker had confessed to killing the victims were friends of Todd, the possible killer and state’s key witness against Stoker. Two state witnesses, Ronnie and Deborah Thompson, testified at trial that Stoker had admitted to killing the victims. At the time of trial, Deborah Thompson had been living with Carey Todd on and off for several months.35 Prosecutors concealed from defense counsel its arrangement to drop unrelated charges against Todd and provide a financial reward for his assistance. According to a post-trial investigation, Todd received a $1000 “reward” for his cooperation in the case—an allegation that the prosecution denied until a subpoena request uncovered documents proving that the reward was paid. In addition, despite the prosecution’s insistence that it had not offered Todd anything in exchange for his cooperation, the state dismissed felony drug charges against him the same day he testified against Stoker.36 A judge on the Fifth Circuit Court of Appeals acknowledged that the evidence against Stoker was no stronger than that against Todd. On appeal, Judge Clinton questioned whether it was “just as likely that Todd committed the murder as Stoker.”37 The state failed to investigate other potential suspects. The manager of the store where the shooting occurred repeatedly and unsuccessfully attempted to explain to law enforcement authorities that: (i) a man named Donald Parker had threatened the victim in the store several days earlier; (ii) approximately one week after the shooting, Parker stated that he had fought with the victim and had the same type of gun that had been used in the murder; and (iii) the crime appeared to have been committed by someone familiar with the store’s security, particularly the safety latch on the back door; the witness did not recall seeing Stoker in the store.38

(c)

(d)

(e)

Earl Behringer was executed in June 1997 despite the sworn affidavit of another person confessing to the crime for which Behringer was convicted. Mr. Gonzales’s clemency memo did not state that exculpatory evidence, including a sworn confession from another condemned inmate, had never been considered by the trial jury. The Fifth

33 34

Id. at 11. Id. at 6. 35 Id. 36 Id. at 11-14. 37 Id. at 11. 38 Id. at 9-11.

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Circuit Court of Appeals, which considered Behringer’s request for habeas relief, denied the claim on procedural grounds only. In its opinion, the court noted that its decision had no bearing whatsoever “regarding the merit of this unexhausted claim.”39 • Billy Conn Gardner was executed in February 1995 despite evidence that the prosecution’s key witness committed the crime for which Gardner was convicted. Mr. Gonzales’s clemency memo omitted the following evidence bearing on Gardner’s claim of innocence, which was set forth in Gardner’s clemency petition:40 (a) Law enforcement authorities coerced the state’s key witness to implicate Gardner. When the police initially questioned Marvin Sanders, who himself was a suspect in the murder for which Gardner was convicted, he refused to cooperate. After the police took action to prevent Sanders from receiving probation on an unrelated charge, instituted federal firearms charges, and threatened to take criminal action against his wife, Sanders was forced to “come up with a name.” In return for his testimony against Gardner, he was given immunity in that case, received probation on the unrelated charge, had the firearms charges dismissed, and the criminal investigation of his wife terminated. This arrangement with law enforcement authorities was not disclosed during Gardner’s trial.41 Law enforcement authorities coerced another witness to implicate Gardner. A state witness who implicated Gardner only “recalled” the subject of his testimony after he was arrested for driving while intoxicated the night before Gardner’s trial.42 Gardner did not fit the physical profile of the suspect. Gardner, who had jet black hair and no facial hair, bore no resemblance to the description provided by two different eyewitnesses (including the murder victim, who described the shooter before she died)—sandy, reddish hair and a small red goatee.43 Clemency Memos Omitting Fact That Jury Never Considered Mitigating Evidence Likely to Have Persuaded Jurors Not to Impose Death Sentence

(b)

(c)

C.

In at least six cases for which Gonzales prepared clemency memos, he failed to note, let alone discuss, the fact that substantial mitigating evidence was never considered by the jury. In most cases, the mitigating evidence was known or could have been discovered, but defense counsel failed to investigate and present the information during the sentencing phase of trial. • Karl Hammond was executed in June 1995 despite the fact that trial counsel presented no mitigating evidence during trial. Mr. Gonzales’s clemency memo failed

39
40

Behringer v. Johnson, No. 96-10012 (5th Cir. Feb. 5, 1996).

See Gardner Clemency Petition; Memorandum from Alberto R. Gonzales to Governor George W. Bush dated February 14, 1995, re: scheduled execution of Billy Conn Gardner on Thursday, Feb. 16, 1995, at 12:01 a.m.
41 42 43

Gardner Clemency Petition, at 7-8. Id. at 13. Id. at 9-10.

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to report that although significant mitigating evidence existed in Hammond’s case, his counsel did not present any of the following evidence to the jury: 44 (a) (b) (c) (d) (e) • that Hammond suffered severe physical and mental abuse as a child; that at the age of nine, Hammond witnessed the shooting death and mutilation of his father at this hands of his brother; Hammond’s extensive drug use, which started at the age of 13; Hammond’s history of psychiatric problems, including suicide attempts; and Hammond’s diagnosis of schizotypal and antisocial personality disorders.45

Billy Joe Woods was executed in April 1997 despite the fact that the jury never learned of his severe childhood abuse and mental impairments. Mr. Gonzales’s clemency memo states that Woods, who was adopted at age 8, “received adequate financial and emotional support from his adopted family.”46 This characterization presented an incomplete picture of Woods’ personal background. Court records reflect that Woods was severely abused prior to his adoption and was diagnosed as borderline mentally retarded. Evidence of his troubled personal history was never considered by the jury and was altogether omitted from Mr. Gonzales’s clemency memo.47 Clifton Eugene Belyeu was executed in May 1997 despite the fact that the jury never heard evidence about his psychiatric and brain disorders. Mr. Gonzales’s clemency memo does not report that Belyeu’s trial counsel failed to apprise the jury of significant mitigating evidence.48 In fact, a federal district court determined that Belyeu’s counsel had “failed to deliver constitutionally adequate service in the sentencing phase of the trial” by not developing and introducing the following evidence: (a) (b) (c) (d) (e) Belyeu’s family history of mental disorders; his medical problems as a child and adult; his numerous head injuries, one of which left a prominent scar on his head; his abusive childhood (including his father’s incarceration for raping Belyeu’s sister); and his suicide attempts.49

Larry Wayne White was executed in May 1997 despite the fact that the jury never heard evidence about his severe mental impairment. Mr. Gonzales’s memo correctly notes that White “had been diagnosed with post traumatic stress disorder as a result of his combat service in the Marines in Vietnam.”50 But the memo omits the fact that the jury

44

Memorandum from Alberto R. Gonzales to Governor George W. Bush dated June 20, 1995 re: scheduled execution of Karl Hammond on Monday, June 21, 1995, at 12:01 a.m.
45 46

Hammond v. State, 799 S.W.2d 741, 749 (1990).

Memorandum from Alberto R. Gonzales to Governor George W. Bush dated April 14, 1997 re: scheduled execution of Billy Joe Woods on Monday, April 14, 1997, at 6:00 p.m.
47 48

Woods v. Johnson, 75 F.3d 1017 (5th Cir.1996).

Memorandum from Alberto R. Gonzales to Governor George W. Bush dated May 16, 1997 re: scheduled execution of Clifton Eugene Belyeu, May 16, 1997, at 6:00 p.m. Belyeu v. Scott, 67 F.3d 535, 540-41 (5th Cir. 1995). The Fifth Circuit Court of Appeals denied relief because Belyeu had not demonstrated that counsel’s deficient performance resulted in actual prejudice.
50 Memorandum from Alberto R. Gonzales to Governor George W. Bush dated May 22, 1997 re: scheduled execution of Larry Wayne White on Thursday, May 22, 1997, at 6:00 p.m. 49

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never learned of White’s troubled background because his trial counsel failed to investigate and present the claims during the punishment phase of trial.51 • Dwight Dwayne Adanandus was executed in October 1997 despite the fact that the jury never learned of his severe head injuries and mental impairments. Mr. Gonzales’s clemency memo omits that fact that the jury that sentenced Adanandus to death never heard evidence about the following matters:52 (a) (b) (c) (d) (e) (f) (g) • Adanandus was diagnosed as borderline mentally retarded; He suffered a head injury as a child that required a metal plate to be implanted in his head, following which his behavior deteriorated and became more erratic; He experienced periods of lost consciousness following the accident; He underwent a craniotomy, possibly after sustaining a second head injury in a motorcycle accident; Two years before committing the crime for which he was sentenced to death, he was hospitalized after experiencing a prolonged period of unconsciousness; He was diagnosed as suffering from “non-psychotic organic brain syndrome with a personality disorder,” possibly as a result of a skull fracture; and He suffered from mild neuropsychological impairment, particularly with abstract reasoning and concept formation.53

Kenneth Ray Ransom was executed in October 1997 despite the fact that the jury never learned about the severe physical abuse that he suffered as a young child. Mr. Gonzales’s memo fails to note that Ransom’s trial counsel presented no evidence to persuade the jury to spare Ransom’s life, despite the fact that his child welfare case file reveals the following:54 (a) (b) (c) (d) When Ransom was 10 years old, he was severely burned with hot water, which left thick dark patches in his pubic region and on his foot; As a child, Ransom’s face, arms and thighs were covered with old and new scars from extension cord licks, and his back and arms were covered with vshaped marks; After Ransom was briefly returned to his mother at the age of 12, school officials reported that Ransom’s back and arms were covered with bruises and cuts; Ransom was returned to foster care at the age of 12, ran away when he was 14, and returned to foster care when he was 15.55

51 52

White v. Johnson, 79 F.3d 432, 437 (5th Cir. 1996).

Memorandum from Alberto R. Gonzales to Governor George W. Bush dated October 1, 1997 re: scheduled execution of Dwight Dwayne Adanandus on Wednesday, October 1, 1997, at 6:00 p.m.
53 54

Adanandus v. Johnson, 947 F.Supp. 1021, 1041-43 (W.D. Tex. 1996).

Memorandum from Alberto R. Gonzales to Governor George W. Bush dated October 28, 1997 re: scheduled execution of Kenneth Ray Ransom on Tuesday, October 28, 1997, at 6:00 p.m.
55

Ransom v. Johnson, 126 F.3d 716, 721-22 (5th Cir. 1997).

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D. •

Clemency Memos Omitting Evidence of Official Misconduct Affecting Fairness of Conviction and Death Sentence

Ernest Orville Baldree was executed in April 1997 despite the recantation of three state witnesses who claimed to have been coerced into testifying against Baldree by law enforcement officials. Mr. Gonzales’s memo acknowledged that Baldree contended his conviction resulted from police and prosecutorial misconduct, but failed to explain Baldree’s particular allegations of misconduct. The following information was entirely omitted from Mr. Gonzales’s memo: (a) Three of the state’s witnesses submitted affidavits recanting their trial testimony and prior written statements, alleging that the police had forced them to implicate Baldree through coercion and threats.56 The first witness, Carl White, stated that the police indicated that he would be indicted under more serious charges if did not testify against Baldree. White stated that the testimony he gave at trial—that Baldree confessed to him that he had killed two people—was fabricated.57 The second witness, Kyle Barnett, also testified at trial that Baldree admitted to having murdered the victims. Barnett’s affidavit states that his testimony, which was false, was provided in exchange for leniency in his upcoming parole revocation hearing.58 The third witness, Larry Bevers, did not testify at trial, but signed a written statement that Baldree sold him the murder victims’ stolen jewelry and attempted to sell the victims’ stolen car. In his affidavit, Bevers admits that he bought the stolen jewelry from another man and had never been offered the victims’ stolen car. Bevers’ affidavit asserts that the police repeatedly harassed him until he signed the statement that they had prepared.59

(b)

(c)

(d)

Gonzales’s memo omitted not only the substance of Baldree’s claims, but also the fact that his claims never received meaningful review from the courts. The state court refused to hold a hearing to consider Baldree’s claims. It issued an order denying Baldree’s request for relief on the same day the state filed its response, preventing Baldree from submitting a reply. On appeal to the federal court, Baldree was again denied relief because the court was bound to give a “presumption of correctness to the state court findings.”60 • Irineo Tristan Montoya was executed in June 1997 despite evidence that law enforcement officials failed to notify Montoya of his right to consular assistance, and allegations that the officials used coercion to obtain a signed confession that Montoya believed was an immigration document. As discussed in Section III.A., Mr. Gonzales conceded in a letter to the U.S. State Department that Texas law enforcement officials did not apprise Montoya of his right to seek consular assistance, as required

56 57

Baldree v. Johnson, 99 F.3d 659, 661 (5th Cir. 1996).

Id. 58 Id. 59 Id. at 661-62. 60 Id. at 662.

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under Article 36 of the Vienna Convention on Consular Relations.61 In the letter, Mr. Gonzales assured that Montoya’s denial of consular assistance would be carefully considered during the clemency process. Yet, in the clemency memo that he prepared for Governor Bush’s review, Mr. Gonzales stated nothing about the police’s failure to apprise Montoya of his right to contact the Mexican Consulate. Compounding the error of this omission, the memo also failed to address Montoya’s claim that his written confession—the primary evidence used against him at trial—may have been illegally obtained. Montoya’s clemency petition raised the following matters, none of which were included in Mr. Gonzales’s memo:62 (a) Montoya’s confession was written in a language he did not understand, let alone read or write. Montoya, who was schooled in Mexico until the 5th grade, signed a confession that he claims he did not understand and believed to be an immigration document.63 Montoya’s confession followed hours of interrogation by an officer accused of misconduct. The officer who conducted Montoya’s interrogation was accused on or about the date of Montoya’s arrest with threatening people, using his badge to arrest people for personal reasons, using excessive force, and falsely informing colleagues that he was working on an investigation.64 Montoya allegedly was intoxicated and sleep-deprived when he signed the written confession. Montoya apparently was arrested at a pool hall where he had been drinking heavily, after which he endured hours of interrogation. According to Montoya’s counsel, his fatigue is evidenced by his misspelling of his last name as “Montoyo.”65

(b)

(c)

IV.

CONCLUSION

As General Counsel to Governor Bush between 1995 and 1997, Alberto Gonzales did not consistently provide the Governor with the facts necessary for him to reach an informed determination on whether a death sentence had been imposed accurately and fairly in a given case. Mr. Gonzales’s failure to ensure that every case received fair and balanced treatment may well have resulted in serious miscarriages of justice, including the possible execution of an innocent person. We urge the distinguished members of the Senate Judiciary Committee to question Mr. Gonzales closely on these matters to determine the strength of his commitment to evenhanded justice in every case.

61 62

See Letter from Alberto R. Gonzales to Michael J. Matheson dated June 18, 1997. Memorandum from Alberto R. Gonzales to Governor George W. Bush dated June 18, 1997 re: scheduled execution of Irineo Tristan Montoya on Wednesday, June 18, 1997, at 6:00 p.m. 63 Montoya Clemency Petition at 8, 11. 64 Id. at 22. 65 Id. at 12.

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