By Alan Berlow
In nominating Alberto Gonzales to be the next attorney general, President Bush has selected a man with a long record of giving him the kind of legal advice he wants. Unfortunately, that advice has not always been of the highest professional or ethical caliber.
Gonzales is perhaps best known for a controversial January 2002
memorandum to the president in which he argued that Geneva Convention proscriptions on
torture did not apply to Taliban and al Qaeda prisoners, and that the conventions are,
This interpretation of international law, which many have linked to the
abuses at the Abu Ghraib prison, will no doubt be a focus of confirmation hearings.
Senators might also want to quiz Gonzales about a less well-known June 1997 memo
involving another treaty, the Vienna Convention on Consular Relations. Written when
Gonzales was counsel to then-Gov. George W. Bush, the memo puts forward the novel
view that because the state of Texas was not a signatory to the Vienna Convention,
it need not abide by the treaty. Or, put another way, Texas is not bound by
Article VI of the Constitution, which states that U.S. treaties are “the supreme Law of the
That memo was written to dismiss State Department concerns about the
impending execution of a Mexican national whose rights under the convention had
clearly been violated by Texas police. And it is on the subject of executions that
Gonzales’s most questionable legal writings may be found.
Bush approved 152 executions during his six years as governor. For each
of the first 57, he made his judgment based on a three- to seven-page “execution
summary” prepared by Gonzales and on an oral briefing that typically lasted no
more than 30 minutes that the chief counsel usually presented on the day of the
execution. In nearly all these cases, Gonzales was the only person standing between the
executioner and a governor who made it abundantly clear he had little or no
interest in granting clemency.
Where some might view this as a terrifying and formidable responsibility,
Gonzales’s “confidential” memos suggest that he saw his role as more of an
expediter of his boss’s preordained conclusion. Far from presenting an
evenhanded or nuanced discussion of the case for and against clemency, Gonzales’s
execution summaries display a consistent prosecutorial bias. Not once does he attach a
clemency petition in which the condemned put forward his or her best case
for a reprieve. And Gonzales’s summaries repeatedly play down or fail to report
the most important issues at hand: claims of ineffective counsel, conflicts of
interest, mitigating evidence, evidence never presented to a jury, even evidence of
innocence. Not surprisingly, a disinterested observer relying solely on
Gonzales’s memos would probably do exactly what Bush did: deny clemency in every
Consider the case of Terry Washington. Gonzales’s three-page summary
misleadingly suggests that there was doubt about the central issue in Washington’s plea
for life: the fact that he was brain-damaged and mentally retarded. But the
state of Texas did not dispute the fact that Washington was retarded. Gonzales
doesn’t inform Bush that Washington’s incompetent attorney never called a mental
health expert to testify, never advised the jury that his client was retarded, or
that he had an IQ between 58 and 69 and had been beaten with whips, water hoses,
extension cords, fan belts and wire hangers as a child. Nine hours after Gonzales’s
briefing, Washington was executed. The Supreme Court has since found executions of the
mentally retarded to be cruel and unusual punishment.
In the case of David Wayne Stoker, there were enough red flags for a May Day
parade, yet Gonzales spotted none of them. For starters, a federal
appellate judge had concluded that the state’s star witness was just as likely the
murderer as Stoker. Gonzales’s 18-sentence summary also failed to note that a key witness
recanted after Stoker’s conviction (explaining that he’d been pressured by
the prosecution to present perjured testimony) and that the state’s star witness
received a financial reward for fingering Stoker, had felony drug and weapons
charges dropped and therefore had an obvious motive for accusing Stoker.
Gonzales also didn’t tell Bush that this witness and two police witnesses lied
under oath at trial, that the state’s expert medical witness pleaded guilty to seven
felonies involving falsified evidence and that the state’s psychiatric witness, whose
testimony was essential to securing a death sentence, never even interviewed
Stoker. The psychiatrist had since been expelled from the American
Psychiatric Association for repeatedly providing unethical testimony in murder cases.
Senators might want to know how none of this public information made it into
Gonzales’s report. And they might ask how Gonzales’s office could be
prescient enough, a full week before Gonzales wrote his summary and briefed the
governor, to inform Stoker’s attorney that there would be no grant of clemency.
One could, of course, argue that the client calls the shots, and that
Gonzales delivered exactly what Bush wanted. But the 57 cases Gonzales summarized
were all matters of life or death. They included people such as Stoker, who may
have been innocent, and others such as Washington who had something less than a fair
trial. Given the stakes, one must ask whether a fair-minded or ethical lawyer
would simply do as he’d been told.
Alan Berlow is a Washington-based writer who often deals with death
penalty issues. He adapted this column from a longer piece in Atlantic Monthly.
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