HELLO, JUSTICE GONZALES

The Texas Clemency Memos: As the legal counsel to Texas Governor George W. Bush, Alberto R. Gonzales-now the White House counsel, and widely regarded as a likely future Supreme Court nominee-prepared fifty-seven confidential death-penalty memoranda for Bush's review. Never before discussed publicly, the memoranda suggest that Gonzales repeatedly failed to apprise Bush of some of the most salient issues in the cases at hand (Alan Berlow, July/August 2003, The Atlantic Monthly)

During Bush's six years as governor 150 men and two women were executed in Texas-a record unmatched by any other governor in modern American history. Each time a person was sentenced to death, Bush received from his legal counsel a document summarizing the facts of the case, usually on the morning of the day scheduled for the execution, and was then briefed on those facts by his counsel; based on this information Bush allowed the execution to proceed in all cases but one. The first fifty-seven of these summaries were prepared by Gonzales, a Harvard-educated lawyer who went on to become the Texas secretary of state and a justice on the Texas supreme court. He is now the White House counsel.

Gonzales never intended his summaries to be made public. Almost all are marked CONFIDENTIAL and state, "The privileges claimed include, but are not limited to, claims of Attorney-Client Privilege, Attorney Work-Product Privilege, and the Internal Memorandum exception to the Texas Public Information Act." I obtained the summaries and related documents, which have never been published, after the Texas attorney general ruled that they were not exempt from the disclosure requirements of the Public Information Act.

Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die. Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history. Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes.

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales 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.

This is an act of sheer brilliance by the White House, shifting the topic of Mr. Gonzales's confirmation hearings from abortion, on which conservatives are suspicious of him, to the death penalty and putting him on the Right while the Democrats will be going after him and the President for executing criminals. Posted by Orrin Judd at June 27, 2003 8:57 PM