Capital Irony

For much of the past year, attorney Barry Abrams didn't laugh much. But last week, he read in the Houston Chronicle of Governor George W. Bush's sudden concern whether accused mass murderer Henry Lee Lucas actually committed the killing for which he is set to be executed. Abrams chuckled -- in disgust.

In response to a question at a news conference, Bush told reporters that he has asked the Texas Board of Pardons and Paroles to examine whether Lucas -- who at one point claimed responsibility for up to 600 murders across the country -- did indeed commit the murder of an unidentified woman whose body, clad only in orange socks, was found in 1979 near Georgetown, Texas, a small town north of Austin. The Republican governor acknowledged that he'd become concerned about the Lucas case the previous weekend while reading an Austin American-Statesman editorial-page article by former state attorney general Jim Mattox, a Democrat now campaigning to get his old job back.

Lucas was convicted of Orange Socks' murder in 1984, largely thanks to his own confession. By also confessing to other killings across the U.S., he made a name for himself as the country's most prolific mass murderer. But many law-enforcement experts believe he couldn't possibly have committed all of the crimes that he claimed -- including the killing of Orange Socks. And he has since firmly denied all but the murder of his mother.

Williamson County prosecutors remain convinced that Lucas is their man, saying that Lucas knew things about the slaying that only the killer would have known. But in the American-Statesman, Mattox pointed to evidence that Lucas was probably working as a roofer in Florida at the time of the Georgetown killing.

That op/ed piece attracted the attention of the governor -- who is not only running for re-election, but leads the pack of Republican presidential hopefuls. "I am concerned about any death penalty case in which there are questions about the individual's guilt," Bush told reporters. "The first question I ask about any death penalty case is whether there is any doubt about the individual's guilt or innocence. I take every death row case very seriously. If anybody is put to death in the state of Texas, we want to be certain they committed the crime."

Bush added that he has asked the board of pardons and paroles to make sure that the questions about Lucas's guilt in the Georgetown case "are fully vetted." If a majority of the 18-member board recommends clemency, the governor can either grant it or allow the execution to proceed. Lucas is currently scheduled to die June 30.

But you may forgive Barry Abrams if he views Bush's recent words and deeds as at best inconsistent, and at worst insincere. "It struck me as highly political, to put it politely," says Abrams.

Thirteen months ago, Abrams was among the witnesses to the execution of 36-year-old Anthony Ray Westley, a mentally challenged black man. Westley was sentenced to death for the 1984 murder of Chester Frank Hall during a robbery at a Lake Houston bait shop. For eight years, Abrams -- a civil lawyer -- worked pro bono on Westley's appeals.

Westley admitted taking part in the holdup and even firing his pistol during the heist, but he maintained that it had been John Dale Henry, one of his partners in crime, who fired the shot that killed Hall. Henry was convicted of aggravated robbery and sentenced to 35 years in prison. A third bandit, Tyrone Dunbar, was killed during the robbery.

Over the years, as Abrams filed appeal after appeal on Westley's behalf, the attorney came to believe his client's story. Abrams contended that Harris County prosecutors had not been forthcoming with Westley's original trial attorney about evidence that pointed to Dale, not Westley, as Hall's killer. Even the judge who presided over Westley's trial recommended that Westley be retried. But state and federal appeals courts repeatedly rejected the requests for a new hearing.

In May of last year, Westley was finally out of appeals, and his execution date was set. Abrams became resigned to the fact that, without some sort of 11th-hour divine intervention, Westley was going to be executed by lethal injection. And then, as if out of a Hollywood movie script, it happened -- almost.

The night before Westley was scheduled to be executed, members of his extended family claimed to have secretly tape-recorded a telephone conversation with Dale, who had recently been paroled. Dale allegedly acknowledged that he, not Westley, had fired the shot that killed Hall.

"I pushed him," says the tape-recorded voice identified as Dale's. "And, uh, he was a fat man, and he just took a step up and stuck a gun in my gut and shot me and turned back around, started shooting at them. Okay. After he shot me, I shot him."

Westley's family immediately contacted Abrams. The next morning, Abrams fired off transcripts of the tape to state and federal appeals courts, the board of pardons and paroles, and to Governor Bush. But despite the governor's recently stated contention that he is concerned about every death row case in which there are doubts about the inmate's guilt, Abrams says that in Westley's case, it didn't play out that way.

"The initial word we had late in the afternoon was the governor was waiting to see what the 5th Circuit [Court of Appeals] would do, because he didn't want to interfere with the judicial process," recalls the attorney. "Then, when the 5th Circuit denied the stay, and we checked with the governor's office, he was gone for the day. So it did not appear that he was sitting on the edge of his chair to make sure that, in case the courts didn't resolve his doubts, he could step in."

As Abrams watched, Westley became the 117th inmate Texas had executed since reinstating the death penalty in 1982 -- and the tenth that the state had put to death in 1997 alone. Texas was executing inmates at a record pace; Westley's case, largely ignored in the media, was treated chiefly as a footnote to the grim statistic.

After Westley's execution, Abrams found himself in the depths of a major funk, floundering somewhere between numbness and depression. Only in the last 90 days, he says, has he begun to pull out of it.

When he read of Bush's recent concern that Lucas might not be guilty, Abrams was, to say the least, somewhat cynical: "If Anthony Westley had had an attorney who was a political candidate of some stature, putting the governor on the hot seat, it might have made more of a difference than the law and the facts actually did."

Although the governor's press office did fax the Press a copy of the governor's recent statements on the Lucas case and the death penalty, it did not respond to the paper's request for further illumination on that statement and on the Westley case.

But to Bush's credit, says Abrams, the governor was at least consistent in not intervening in the execution earlier this year of Houston pick-ax murderer Karla Faye Tucker. Tucker's case developed into a cause celebre after she became a born-again Christian while on death row.

"But that was a different political dance," says Abrams, who wonders sarcastically who's advising Bush on prison issues these days. The lawyer finds it somewhat amusing that instead of choosing either a born-again Christian like Tucker or a guy like Westley with a taped confession indicating he wasn't the killer, Bush instead picked Henry Lee Lucas -- whose name has become almost a synonym for "mass murderer" -- to make sure that the state's capital punishment process executes only the truly guilty.

"I don't know if it is irony or contradiction or some other word that describes the juxtaposition of his actions and his concerns," says Abrams. "But it's probably some other word."

To reach Steve McVicker, send e-mail to steve_


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