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Gonzales's Clemency Memos Criticized

Crucial Facts Were Missing, Lawyers Say

By R. Jeffrey Smith
Washington Post Staff Writer
Thursday, January 6, 2005; Page A04

In 1995, a one-eyed drifter named Henry Lee Lucas was headed for execution by injection in a Texas prison for the murder of an unnamed woman, one of hundreds he confessed to killing in a crime spree lasting more than a decade.

The task of recommending whether then-Gov. George W. Bush should grant a reprieve or commute Lucas's death sentence fell to Alberto R. Gonzales, Bush's counsel. In a memo to Bush dated March 13, 1995, Gonzales marshaled a case for Lucas's guilt. He noted that Lucas had given a sheriff a drawing of the victim, and attached a record of Lucas's eight other Texas murder convictions, each of which led to lengthy or life prison sentences.

Remarks by attorney general nominee Alberto Gonzales as prepared for delivery to the Senate Judiciary Committee on Thursday.
Audio Analysis: post.com's Ryan Thornburg
_____Key Documents_____
Gonzales Torture Memo to Presdient Bush (Jan. 25, 2002, PDF)
Dept. of Justice Memo on Torture to Gonzales (Jan. 22, 2002; PDF)
Dept. of Justic Memo on Torture to Gonzales (Aug. 1. 2002; PDF)
Gonzales Letter to 9/11 Commission (PDF)
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Left out of Gonzales's summary was any mention of a 1986 investigation by the Texas attorney general's office that concluded that Lucas had not killed the woman, and that he had falsely confessed to numerous killings in an effort to undermine the veracity of his confessions to the crimes he did commit.

While the six-page memo factually summarizes Lucas's court appeals, "it does not really address in any way . . . all the questions that were raised about his guilt," said Jim Mattox, the Texas attorney general from 1983 to 1991, who instigated an investigation of police conduct in the case. He said that if the memo had been prepared for him, he would have chastised the author "for allowing me to make a decision on partial information."

Senate hearings today on Gonzales's nomination to become the next U.S. attorney general are expected to focus on his work as White House counsel. But his memos for Bush on Texas clemency matters illustrate how Gonzales approached another momentous task: endorsing the taking of a life.

Several other attorneys for convicts executed in Texas during Bush's tenure -- who recently reviewed the memos for the first time at the request of The Washington Post -- complained that Gonzales provided unfair or incomplete summaries of evidence and mitigating circumstances. They said the missing information might have influenced Bush's decisions had he been aware of it.

Jim Marcus, an attorney for convicted murderer Kenneth Ray Ransom, said, for example, that Gonzales's memo does not correctly state the basis for the clemency request he filed in 1997. "Had I known that the 40-page petition I filed would be boiled down to one slipshod sentence in Mr. Gonzales's memo, I would simply have filed a one-sentence petition," he said.

White House spokesman Brian R. Besanceney said in response to the complaints yesterday that Gonzales and his colleagues in the Texas counsel's office "treated each clemency petition with careful scrutiny and sensitivity." He also said the summaries Gonzales prepared represented "a small fraction of the information provided to the governor" and sought only to document "the governor's final decision" rather than recommend a course of action.

Pete Wassdorf, head of the general counsel's office for the Texas attorney general, who served as Gonzales's deputy at the time, also said additional information about some of the cases was provided to Bush in other documents. But only a few of the 62 clemency memos Gonzales prepared for Bush between January 1995 and November 1997 make any reference to additional documentation.

The Gonzales memos were first released to journalist Alan Berlow, who wrote about them in the Atlantic Monthly magazine, and later provided to The Post by the Texas archives.

Gonzales's staff in the Texas counsel's office drafted the memos. He edited and approved about one every two months during the first three years of Bush's governorship. Gonzales acted under a provision of the state constitution that required him to "review and make recommendations on applications for pardons, commutations and reprieves."

Each of the memos included a line at the end where Bush could check off "deny" or "grant." Most were three to four pages long, although one -- for female ax-murderer Karla Faye Tucker, who gained wide attention by embracing Christianity in prison -- included a letter and videotape from Tucker to Bush.

Gonzales's habit in the memos was to present what he listed as a "brief summary of the facts," followed by a family and personal history of the convict, a tally of other crimes, a summary of litigation and a one-paragraph conclusion. In some cases, Gonzales said, "we feel that nothing will be gained by granting a 30-day reprieve" or "no compelling legal or factual reasons support" commutation of the death sentence.

But in other instances, when no clemency petition had been made, it had already been denied by the state board of pardons, or the defendant did not have a lawyer, Gonzales expressed no opinion about guilt or innocence; he merely predicted that the convict "will be executed on the scheduled date," and left room for Bush's check mark.

In the case of David Herman, who was executed in 1997 a few days after an attempted suicide, Herman's lawyer, Jack Strickland, said that Gonzales's memo was "a skeletal attempt to brief Bush on a complex case." He said Gonzales had not given adequate attention to whether Herman was mentally competent, a requirement for executions. Strickland, who both prosecuted and defended death penalty cases, said actions by Gonzales and Bush left a wide impression that "it was a waste of paper" to request a commutation.

Greg Wiercioch, another Texas defense attorney, said in an interview that for two of his death row clients, appellate courts granted stays of execution or ordered additional evidentiary hearings after Gonzales declared in his memos that the case had no worthy pending legal issues.

Bush did eventually commute Lucas's death sentence to life imprisonment -- the only commutation during his five-year tenure -- after Mattox pressed the issue publicly during a 1998 campaign for reelection as attorney general on the Democratic ticket. Gonzales legally witnessed Bush's written "proclamation."

"I take every death-penalty case seriously and review each case carefully," Bush said at a news conference on the day of his decision.

The Alliance for Justice, a coalition of 70 civil rights and other organizations, charged in a statement released yesterday that "the deficiencies in Gonzales' memoranda may have played a role in Bush's failure to grant clemency." They said his record on the issue, along with policies he embraced on the detention of prisoners in the war on terrorism, raised questions about "whether he can properly serve as the nation's chief law enforcement officer."

Besides the sole commutation, Bush granted a single 30-day death penalty reprieve, in a case that arose after Bush had appointed Gonzales to the Texas Supreme Court. In non-death-penalty cases, Bush granted 19 of the 149 pardons "for innocence" or compassion that were urged by the Texas Board of Pardons and Paroles, an official review body for such requests. Scholars at the University of Pittsburgh have said that was the lowest number by any Texas governor since the 1940s.

Research editor Lucy Shackelford and researcher Karl Evanzz contributed to this report.

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