As such, prior to execution, every death penalty case was thoroughly reviewed by the governor’s office, and that responsibility fell to my legal staff and me. Ordinarily, the Texas attorney general’s office notified me several months in advance of a scheduled execution. I assigned each case to one of the lawyers in our office, and that attorney studied it and prepared a summary for my review and the governor’s.
I knew that Governor Bush supported the death penalty for heinous crimes involving loss of life. He had campaigned on a law-and-order platform, and I had heard him discuss his confidence in the criminal-justice system to weigh evidence and determine guilt or innocence. He did not believe the governor should second-guess juries or judges. I quickly learned that if there was no doubt about an individual’s guilt, and the courts had decided all the legal issues, unless there was some compelling new information such as DNA evidence that the courts had not considered, the governor was unlikely to grant clemency. Nevertheless, Bush wanted to make absolutely certain that only those guilty of the crimes for which they were convicted were executed. In later years, the media portrayed him as a calloused, uncaring, coldhearted tyrant who was indifferent about allowing executions to go forward. Nothing could be further from the truth.
Early in the administration, although I knew it would be gut-wrenching, I went to the state’s death chamber in Huntsville, Texas, to witness an execution. During my three years on the governor’s staff, I supervised clemency requests relating to more than forty-five death-penalty cases, and I witnessed three executions.
Why would I feel the need to witness an execution? First, I thought it important to understand fully the procedures and mechanics of this very significant and solemn government duty. Second, I wanted to experience—to the extent possible—the gravity of these proceedings, to feel the emotion in relation to the execution of a human being. This was serious business, and I wanted those images from the death chamber firmly in my mind every time I reviewed one of these cases.
One of my most wrenching visits to the death chamber took place in 1995, when I went to Huntsville to witness a midnight execution. The inmate had been convicted of killing a young woman in San Antonio nine years earlier, shooting her twice in the head with a .22-caliber pistol. I watched as he was fingerprinted one final time to confirm his identity just prior to his execution. He appeared smallish and I noticed his hands. The victim had been with her boyfriend on her way to a nursing aide school when the inmate, a paroled murderer, grabbed her in a headlock with those hands and dragged her for two blocks at gunpoint.
I met with the prison chaplain, who was about to retire after having counseled nearly one hundred death-row inmates. After a final conversation with this particular inmate, the chaplain and I found ourselves alone for a quiet talk. I was curious about this chaplain and about the strength of his faith, so I asked him whether he was comfortable with the taking of a life, even when demanded by the state of Texas.
He looked at me intently for a moment and in a whisper revealed that as the hour of death approached, most inmates he had counseled had confessed—sometimes in graphic detail—to the crime for which he or she had been sentenced to die. In the twilight of life, they prayed for forgiveness, he said. “Nothing compares to listening to a killer describing his feelings as he killed his victim. One inmate,” he said with a sad sigh, “confessed to killing a woman just for the feeling of the kill.”
And then he revealed something that bothers me to this day. He told me that many of these midnight confessions were not limited to the crime for which the convicted criminals were being executed. These confessions sometimes included other killings and other crimes. I asked what he would do with this information, and he shook his head. “Nothing,” he said as his shoulders sagged, the sanctity of confession preventing him from disclosing what he learned. The chaplain’s face was filled with deep creases formed undoubtedly over the years by the weight of the confidential burdens he bore.
I thought then about the many families of the victims living in heartbreak who would likely never know closure. How many of their prayers had gone unanswered? At that moment I said a silent prayer for those families, and I thanked God that I had been spared the burden of shouldering the loss of a loved one and not knowing how or why.
In my years of service, I have often spoken to God in prayer. I prayed to not have to endure certain challenges, and there were many times I asked for wisdom to help me accept, if not to understand, that which seemed totally unfair or utterly incomprehensible. Yes, the privileges and perks from my service in Austin were enjoyable, but the burdens were sometimes staggering.
Later, after his retirement, I heard that the chaplain spoke out against the death penalty. His change of heart and assertion that the system is flawed did not affect my belief in the death penalty. I supported the people’s will that the death penalty be available as a punishment. His change of heart did, however, intensify my support of procedures to ensure that we apply the death penalty only for those who are truly guilty, who are mature and of sound mind, and who are cognizant of the consequences of their crimes.
When Governor Bush first took office, executions were conducted at midnight, but early in his first term, the state legislature changed the execution time to 6:00 p.m., to defray the cost of overtime for the wardens and prison officials. A member of my staff normally met with the governor and me the evening before or the morning of an execution to discuss the case and the application for clemency. The governor usually made his decision regarding clemency during those meetings, but would not announce it if there were legal appeals pending. After all legal appeals were exhausted, and the execution was about to begin, I communicated the governor’s decision by telephone to the warden in Huntsville and then stayed on the line as the condemned criminal was led to the death chamber. I remained on the telephone with the warden right to the end, just in case there was some last-moment reason to halt the execution. When the execution was over, I called the governor’s residence and usually left word with a member of his security detail, providing the time of death and any other important details he should convey to the governor.
One of the most highly publicized cases with which we dealt was that of Karla Faye Tucker, who had brutally murdered two people with a pickax and had boasted about how she had enjoyed doing it. The jury convicted her and she was sentenced to die. Years later while in prison, Ms. Tucker became a born-again Christian. She even married a prison chaplain while incarcerated.
The district attorney notified our office the week before Christmas that Ms. Tucker’s execution date was set for February 3, 1998. A few weeks earlier, Governor Bush had appointed me as Texas secretary of state. My successor was Margaret Wilson, a seasoned litigator and former colleague of mine at Vinson & Elkins. Since she was relatively new, I continued to support her during the transition by discharging many duties ordinarily the responsibility of the general counsel until Margaret was ready.
The Tucker story made headlines all around the world. Catapulting the case above others was the fact that no woman had been executed in the United States since 1984, and Texas had not executed a woman in more than one hundred years. I expressed my concerns to the governor that he and Texas might reap a whirlwind of negative press for executing a woman. Gender, however, was not the paramount issue to Governor Bush; he insisted that the same standards of justice be applied to all. Communications director Karen Hughes reminded reporters, “The gender of the murderer did not make any difference to the victims.”1
Nevertheless, the public rallied to Ms. Tucker’s side, with many supporters calling for the commutation of her sentence. Anti-death-penalty protesters held vigils outside the gates of the governor’s mansion, and many evangelical Christians protested that this repentant and remorseful person should not be executed. Pat Robertson, founder of the Christian Broadcasting Network, called the governor’s office personally—and Robertson’s lawyer made a similar call to me—asking for mercy for Tucker, based on her
changed life as a Christian. She was a model prisoner who worked tirelessly to support and minister to other inmates. She had already been on death row for fourteen years as various appeals were filed on her behalf.
My legal team had thoroughly reviewed the case and had concluded we had no basis on which to recommend clemency, but I wanted to make sure. At home late one night, I watched a videotape of the grizzly crime scene. It was revolting. As I viewed the tape, Becky unexpectedly came into the room, and when she saw the screen, she gasped.
“Al! What is that?” she cried.
“It’s the police video of the Tucker crime scene,” I told her. The images were disturbing, and she quickly left the room.
In December 1997, the chairman of the parole board and I visited with Ms. Tucker on death row because I knew the governor would ask me about the authenticity of her spiritual conversion. Many death-row inmates grow quite religious and find faith as their execution dates draw nearer. Some claim to be changed as a result of meeting God and now worthy of clemency consideration. Not all of them are sincere. But as I visited with Ms. Tucker, I was convinced of her conversion. She no longer blamed her mother for trying to turn her into a teenage prostitute, nor did she make excuses that she had been high on drugs during the murders, both of which had been part of her previous defense. She did not try to dodge responsibility in any way; she admitted her guilt and that her trial and appeals had been fair. She had repented in tears, and her only hope was that the governor might allow her to live out her life in prison where she could help other young women turn their lives around.
We talked for quite a while, and I was convinced that Karla Faye Tucker was a changed person, but she had admitted to committing a heinous crime and there were no grounds on which to commute her sentence or grant a thirty-day reprieve. I knew that given the governor’s standards, it was highly unlikely that he would grant clemency; there was no question about her guilt, and there was no new evidence that had not been considered by the courts.
As I rose to leave Ms. Tucker, I thanked her for seeing me and said, “I think we have all the information we need.”
Ms. Tucker looked at me and with an almost desperate sound in her voice, asked, “Is that all there is? Will I see you again?”
“I don’t think so,” I replied solemnly. As I left, I felt deep sadness.
I returned to Austin and shared my impressions with Governor Bush. The Texas Board of Pardons and Paroles voted sixteen to zero with two abstentions that clemency be denied; the US Supreme Court reviewed the case and also denied a request to halt the execution.
The morning of the scheduled execution, I arrived at the office at 7:00 and met briefly with Governor Bush before he left for a planned event in north Texas, where he was announcing the restoration of the home of legendary Texas Democrat and US congressman Sam Rayburn, who had served as Speaker of the House for more than twenty years. Unless something extraordinary and unexpected happened, the governor was not going to grant a thirty-day reprieve to Karla Faye Tucker. By the time Governor Bush returned late that afternoon, the media was in a frenzy, ready to report on every detail of the Tucker execution.
Around 5:00 p.m., I called Ms. Tucker’s attorney, David Botsford, who told me he wanted to file more appeals with the Texas Court of Criminal Appeals, which he did. Less than an hour later, we learned that the federal courts also denied the requests. Shortly after that, Botsford called again, informing me that he had nowhere else to turn, and he would not file any further appeals. As a last-ditch effort, the Tucker lawyers asked Governor Bush to postpone the execution for thirty days. The decision was now up to the governor.
As Governor Bush went on live television to tell the press and the people of Texas his decision, he was emotional. He briefly reminded everyone of his oath to uphold the law and his concern that justice be applied fairly. He acknowledged, “Like many touched by this case, I have sought guidance through prayer.” He told the reporters that the case had been reviewed by the Texas courts as well as the US Supreme Court, and then he concluded, “Therefore, I will not grant a thirty-day stay.”
His voice cracked a bit and his eyes were moist as Governor Bush said, “May God bless Karla Faye Tucker, and may God bless her victims and their families.” He immediately left the pressroom and returned to his office, where Joe Allbaugh, Clay Johnson, and I were waiting. He looked melancholy, as though he carried a heavy weight on his shoulders.
For the next twenty minutes or so, we sat together quietly while Margaret Wilson and Deputy Counsel Donna Davidson, in the counsel’s office, stayed on the telephone line with the warden in Huntsville and relayed reports from the prison. Donna’s strong voice repeated the warden’s words: “6:25, prisoner led from cell . . . 6:35, lethal dose administered . . .” and then somberly Donna gave the final report.
At 6:45 p.m. on February 3, 1998, with nearly a thousand people outside the prison—some praying, some protesting—inmate number 777, Karla Faye Tucker, became the first woman executed in Texas since 1863.
Every execution was heart-wrenching, and Ms. Tucker’s was especially so. The governor sighed and prepared to leave. Before going out the door, he turned to me. “Thank you,” he said quietly. “You did a good job.”
Maybe so; I knew we had done the right thing for the right reasons, but it was still one of the most difficult and emotional days of my service.
CHAPTER 9
TEXAS CAMELOT
One of the more memorable highlights during my tenure as governor’s counsel was the celebration of George W. Bush’s fiftieth birthday in July 1996, on the grounds of the governor’s mansion. Dozens of family members, friends, government officials, and other well-wishers attended, all in a festive Fourth of July mood. It was a casual event, and the governor was in a jovial spirit as we all chowed down on Texas barbecue and fried chicken.
It had already been a great day when Lieutenant Governor Bob Bullock rose to offer a toast to Governor Bush. Although a staunch Democrat powerhouse, Bullock lavished sincere praise upon his Republican governor, then concluded his remarks as he raised his glass and said, “And I believe we are standing in the presence of the next president of the United States!”
Whooom! It was a pivotal moment. Bob Bullock’s toast expressed publicly what many people in Texas and elsewhere were saying privately. The birthday celebrants cheered wildly, and Governor Bush smiled and nodded in appreciation. Becky and I cast knowing glances at each other. We might not be relocating home to Houston anytime soon. We had the feeling again in November 1997 at the dedication of the George Bush Presidential Library and Museum at Texas A & M University in College Station, for the governor’s father. The event was celebrated by former president George H. W. Bush and his wife, Barbara, along with the entire Bush family, as well as former presidents Gerald R. Ford and Jimmy Carter. President Bill Clinton spoke at the ceremony. Former staffers and friends reminisced about wonderous achievements, while the governor’s staff and friends dreamed of what might be. As I watched the scene unfold, I thought, This is like a Texas Camelot.
In December 1997, Governor Bush appointed me Texas secretary of state. I was especially honored because the position was the only statewide constitutional office for which individuals did not run for election. Under the Texas constitution, the secretary is appointed by the governor.
I moved into a spacious and beautiful office on the first floor of the capitol and directed a staff of more than 250 people. As secretary of state, I was the chief state elections officer and the custodian of all state business records, as well as chief protocol officer, so part of my responsibilities included entertaining foreign dignitaries who visited Texas. Becky and I loved the cultural and diplomatic aspects of this new position. As the son of a former president and a successful governor, George W. Bush was already being viewed as a potential presidential candidate, so the number of high-profile foreign visitors increased each year he was in office. Becky and I interacted with diplomats and business leaders from various
countries around the world.
Governor Bush also designated the secretary of state as the chief liaison between Texas and Mexico, dealing especially with border matters. That responsibility thrust me headlong into grappling with many complex immigration issues, and balancing our state’s compassion with the need to protect our borders. The increasing flow of illegal immigrants taxed Texas resources, and while Governor Bush had a heart for Hispanics, he was also committed to upholding the law. As a person of Hispanic heritage, I well understood the controversies and sometimes felt torn. My first allegiance, however, as a lawyer and a state official, was with the law and Texas.
In March 1996, Texas attorney general Dan Morales boldly sued several of the national tobacco companies in federal court in Texarkana, Texas, to recover Medicaid costs related to smoking. Morales hired five well-known and experienced Texas trial lawyers to represent the state on a contingency fee basis. The trial lawyers agreed to bear all the costs, as well as all the risks, of the litigation. If successful, they would be entitled to an amount equal to 15 percent of the award to the state. If unsuccessful, they would receive nothing. The case settled in January 1998, and ultimately, the tobacco companies agreed to pay the state $17.3 billion, which meant the five trial lawyers stood to make a whopping $3.2 billion, or $640 million each!
Some legal ethics experts and Texas conservatives, including Republican John Cornyn, who was running for Texas attorney general, questioned the enormous size of the attorneys’ fees. Although he believed in the sanctity of contract, in February 1998, Governor Bush decided to intervene in the case, to hopefully recover a portion of the legal fees for the people of Texas. The governor believed the lawyers were entitled to be reimbursed for their expenses and reasonably compensated for their work, as well as rewarded for assuming the risks of the litigation. These fees seemed excessive, however, and, we believed, included money that could be used by the state to help address costs related to smoking. Governor Bush instructed me to work with his general counsel, Margaret Wilson. The response from Morales was immediate and personal. He bitterly—and publicly—resisted the governor’s attempted intervention in the litigation, and we found ourselves in the unusual position of being at odds in a very high-profile case with our own attorney general.
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