White House Counsel Alberto Gonzales's Texas Execution Memos:
How They Reflect on the President, And May Affect Gonzales's Supreme Court Chances

By JOHN W. DEAN
Friday, Jun. 20, 2003

White House counsel Alberto Gonzales is said to be on President Bush's short list of potential nominees for the U.S. Supreme Court. Unlike other nominees, such as D.C. Circuit nominee Miguel Estrada, it turns out that Gonzales has left quite a paper trail - in the form of fifty-seven death-penalty memoranda he prepared for then-Texas Governor George Bush.

The memos were initially confidential, meant for the Governor alone. They have not themselves been published. But they have been reviewed by writer Alan Berlow of The Atlantic Monthly, and his report on their contents is disturbing indeed.

The Gonzales execution memos raise serious - and, unfortunately ugly - questions, not because of what they say, rather because of what they fail to say. They also suggest that President Bush's earlier claims about how he, in fact, handled clemency requests as Governor of Texas are less than accurate.

Berlow's Assessment of the Memos: No Consideration of Crucial Issues

"During Bush's six years as governor 150 men and two women were executed in Texas," Berlow reports in the Atlantic, "a record unmatched by any other governor in modern American history."

From 1995 to 1997, Gonzales acted as his legal counsel when the then-Governor decided whether to grant clemency, or to allow the executions to go forward. What kind of counsel did Gonzales provide? According to Berlow, he "repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence."

Berlow writes that the memos reflect "an extraordinarily narrow notion of clemency." They appear to have excluded, for instance, factors such as "mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination in jury selection, the competence of the legal defense, or disparities in sentences between co-defendants or among defendants convicted of similar crimes."

Take the case of Terry Washington, a thirty-three-year-old mentally retarded man with the communications skills of a seven-year-old executed in 1997. Gonzales's clemency memo, according to Berlow, did not even mention his mental retardation, or his lawyer's failure to call, at trial, for the testimony of a mental health expert on this issue. Nor did it mention that the jury never heard about Washington's history of child abuse; he was one of ten children, all of whom "were regularly beaten with whips, water hoses, extension cords, wire hangers, and fan belts."

And plainly, Washington's counsel had been ineffective: his strongest argument was never pressed. (Similarly, with respect to death row inmate Carl Johnson, "Gonzales failed to mention that Johnson's trial lawyer had literally slept through major portions of the jury selection.")

For these reasons, Gonzales' silence about Terry Washington's retardation is both inexplicable and stunning.

But according to Berlow, Gonzales went even further: "I have found no evidence that Gonzales ever sent Bush a clemency petition - or any document," Berlow writes, "that summarized in a concise and coherent fashion a condemned defendant's best argument against execution in a case involving serious questions of innocence...." This suggest that even the crucial issue of guilt versus innocence was frequently ignored.

What did Gonzales's memos include, then? They focused heavily on repeating the purported gruesome details of the crime. By doing so, they no doubt made it easier for the governor to feel he was doing the right thing by denying clemency.

Gonzales claimed to Berlow that his execution briefings had always provided Bush a "detailed factual background of what happened," along with "other outstanding facts or unusual issues." Berlow's review of the memos themselves, however, belied that claim.

A Possible Conflict with Bush's Own Account of His Clemency Review Procedures

In his 2000 campaign autobiography, A Charge To Keep, Bush refers to these "numerous" death penalty cases and says: "Each case [was] major, because each case [was] life or death."

Bush claims that he "review[ed] every death penalty case thoroughly," meeting with his legal counsel on the morning of every execution. And according to Bush, "In every case, I would ask: Is there any doubt about this individual's guilt or innocence? And have the courts had ample opportunity to review all the legal issues in this case?"

These two fundamental questions were apparently the only ones on which Bush focused. His record indicates, for instance, that he did not see his role as one of mercy, the traditional reason for clemency. Accordingly, he refused to grant clemency to born-again Christian Karla Faye Tucker, despite the pleas of death penalty supporters Pat Robertson and Jerry Falwell.)

How can this discrepancy be explained? It seems unlikely that Gonzales advised Bush only orally, and not on paper, as to these factors. The level of factual detail in each case, and the sheer number of cases considered, would have made a tradition of purely oral briefings impracticable.

It also seems unlikely that Gonzales failed in his duty to address Bush's questions - if so, why didn't Bush advise him that his memos were subpar and ask for more detail next time?

It's hard to reach any conclusion, after reading Berlow's account of the memos, except the obvious one: Bush considered only the narrow factors included in the memos, and not the two more expansive questions he claims in his autobiography to have raised. And in fact, the Texas clemency proceedings under Bush were even worse than previously believed.

Long before Berlow's article, Amnesty International had concluded that the "jurisdiction that executes more people than any other in the Western world, Texas has turned the final safeguard of executive clemency into nothing more than an empty gesture."

Indeed, by 1999, Amnesty judged that "the Texas clemency process violates minimum human rights safeguards, by failing to ... comply with reasonable concepts of fairness and provide [] protection against arbitrary decision-making by the court." The Gonzales clemency memos establish that, in fact, it was even worse than Amnesty knew.

Gonzales's Views Won't Trouble Bush, But Their Exposure May

Gonzales's apparent death penalty views are unlikely to stop Bush from nominating him to the U.S. Supreme Court. After all, Bush is already well aware of them, from his years in Texas. And he has said that Justices Antonin Scalia and Clarence Thomas are his High Court role models, and they hold similar views to those Gonzales expressed in his memos about what factors should, and should not, impede an execution.

Scalia wrote a stinging dissent in Atkins, and Thomas joined him. Both believe the Constitution allows executions of the mentally retarded.

And neither Justice is particularly concerned about ineffective assistance of counsel. For instance, in a 2000 ruling, both joined Chief Justice Rehnquist's dissent in Williams v. Taylor - in which the Chief Justice said, in essence, that the defendant looked like a bad guy to him, so regardless of whether he had good or bad legal representation, Virginia should go ahead and execute him.

On the other hand, such a strongly pro-death penalty nominee might only bring Bush accolades from the public.

In May 2003, the Gallup organization reported that in all the years it has been polling the nation on the issues - since the 1930s - never has there been more support for the death penalty. Today a staggering seventy-seven percent of the nation is in favor.

Most shockingly, Americans still support the death penalty in large numbers despite an awareness that innocent people are executed. Gallup's most recent polls also find that seventy-three percent of Americans "believe an innocent person has been executed under the death penalty in the last five years."

Though "Liberals (84%) and Democrats (79%) are more likely than conservatives (64%) and Republicans (63%) to believe innocent people have been executed in the last five years," across the board this belief is strong. Yet support for the death penalty prevails.

In another country, Gonzales's paper trail might haunt him. (112 of the world's 195 countries have abolished the death penalty, either as a matter of law or of practice.) In this country, it may well put him on the Supreme Court.


John W. Dean, a FindLaw columnist, is a former counsel to the President. The Atlantic Monthly article will be online after June 24, 2003. Amnesty International's website offers information on the death penalty.

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