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Texas criticized during death-penalty hearing

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WASHINGTON – The death penalty in Texas took a beating Tuesday as a former judge and others urged senators to set minimum standards for defense attorneys and allow more DNA testing.

Former Texas Court of Criminal Appeals Judge Charles Baird testified before the Senate Judiciary Committee that the state has ignored DNA test results in a rape-murder case and defended convictions in which a defendant's lawyer slept through parts of the trial.

"There is a crisis in the state of Texas regarding representation in capital crimes. And I promise you the state of Texas is not going to address that," Mr. Baird said.

No one represented Texas at the hearing. Oklahoma Attorney General W.A. Drew Edmondson, however, urged the committee to avoid the legislation sought by Mr. Baird, which he said could "open endless extensions of the appellate process."

"I urge the committee not to succumb to the mantra and drumbeat of DNA by passing legislation that tramples state sovereignty, ... erases the progress we have made on behalf of victims, adds little to the rights of the truly innocent but adds years to the appeals of the very guilty," he said.

Some Democrats on the committee joined Mr. Baird's attack on Texas's death-penalty practices, which have been used to criticize Republican Gov. George W. Bush in his race for the presidency.

Sen. Russell Feingold, D-Wis., pointed to a recent U.S. Supreme Court ruling overturning the death sentence of Victor Saldano because of testimony in the punishment phase. A psychologist had testified in the Collin County case that the fact that Mr. Saldano was Hispanic was a factor in determining that he would be a threat to society.

Mr. Feingold praised Texas Attorney General John Cornyn for seeking new sentencing hearings for six other death-row inmates whose sentences were imposed after similar testimony from Conroe psychologist Walter Quijano.

Mr. Cornyn's office did not return several phone calls placed asking for comment on the testimony.

But Mr. Feingold added, "Contrary to the statements of Governor Bush, I also believe that these revelations of errors and bias do not show the conveyor belt of death in Texas is working."

Mr. Baird, a Democrat, offered his support for a bill sponsored by Sen. Patrick Leahy, D-Vt., called the Innocence Protection Act. The bill would set minimum federal standards for defense lawyers in death penalty cases. The bill would also allow convicts to seek DNA testing if it applies to evidence used in their trial.

Sen. Orrin Hatch, R-Utah, the chairman of the judiciary committee, has sponsored a narrower bill allowing post-conviction DNA testing in cases where the testing has the potential to exonerate the defendant.

Mr. Leahy cited a recent Chicago Tribune study noting that 43 of those executed since Mr. Bush took office were represented by attorneys either suspended, disciplined or disbarred. He asked Mr. Baird whether the state has made any changes since those findings.

"I cannot sit here with any confidence and say that Texas has changed," Mr. Baird said.

Bush campaign spokesman Ray Sullivan said the Democratic critique of Texas was "unfortunate" and added that Mr. Bush has a limited role in death penalty cases.

"It's unfortunate that something as serious and sober as this would be the subject of partisan political attacks in Washington, D.C.," Mr. Sullivan said. "The governor's role is to ask whether inmates had access to the courts, whether guilt is assured and whether the Board of Pardons and Paroles approves an execution before it takes place."

Mr. Hatch and Mr. Baird disagreed about whether Texas criminal law now calls for two lawyers to be appointed in death penalty cases by the trial judge if the defendant cannot afford his own counsel. Mr. Baird insisted only one lawyer was required. Mr. Hatch produced a copy of the Texas criminal code but Mr. Baird said the law still allows for the appointment of only one attorney for death penalty appeals.

Mr. Baird, who served on the Court of Criminal Appeals from 1991 to 1998, is a chairman of the bipartisan National Committee to Prevent Wrongful Executions. The committee is comprised of death penalty opponents and advocates who express concern about flaws in death penalty cases.

Mr. Baird described for the committee how the Texas Court of Criminal Appeals rejected DNA testing allegedly supporting the innocence of Roy Criner, a New Caney man serving a 99-year sentence for the 1986 rape and murder of a 16-year-old.

Mr. Baird, who was one of the dissenting judges in 1998 when the court ruled 6-3 to reject a district court judge's recommendation for a new trial, said the majority's reasoning was "twisted, contorted and confused."

"Today as I appear before you, senators, in Texas we have a man incarcerated for the remainder of his life who has two DNA tests which conclusively establish his innocence," he said.

Mr. Hatch reacted strongly.

"That's outrageous to me," he said. "Either of these bills would resolve a matter like that."

Mr. Criner's case is now before a federal appeals court. At the time of the state appellate court's decision, prosecutors said negative DNA results would not by themselves exonerate Mr. Criner.

Mr. Baird also cited two Texas rape convictions in which the defendants spent more than 12 years in prison before their convictions were overturned by DNA testing. He also cited the case of Ricky McGinn, a death row inmate convicted of sexually assaulting and murdering his 12-year-old stepdaughter.

Mr. Bush ordered a 30-day stay of execution for Mr. McGinn on June 1 to allow DNA testing. If the tests exonerate Mr. McGinn, it would affect his eligibility for the death penalty, but he could still face a life sentence for murder, Mr. Bush said.

Under current Texas law, no procedure exists to assure that new DNA evidence can be weighed after a conviction has been reached.

The committee did reach quick agreement around a proposal offered by Sen. Charles Schumer, D-N.Y., to provide $100 million to accelerate laboratory work on DNA evidence in rape cases. Mr. Schumer noted there are 15,000 rape evidence kits in New York waiting for DNA analysis, and 180,000 such kits across the country.

"In some cases, the cops won't even collect a kit to submit for DNA analysis because they don't feel it will ever be tested," Mr. Schumer said.

He said each case costs about $2,000 for DNA analysis.

Sen. Charles Grassley, R-Iowa, citing FBI estimates, said only about 100 labs across the country are able to conduct DNA analysis.

Texas court officials have said laboratory waiting lists could delay Mr. McGinn's DNA testing for up to three months.
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