Finally, I want to state for the record that the general counsel's office approached each of these cases with the greatest of care and sensitivity. I categorically disagree with any suggestion otherwise.
I believe it was the ruling I obtained from the Texas attorney general in the case of David Spence four years ago that allowed Alan Berlow to acquire all the other memos Alberto Gonzales sent to Governor Bush in clemency cases.
Berlow writes that he "found no evidence that Gonzales ever sent Bush a clemency petition—or any document—that summarized in a concise and coherent fashion a condemned defendant's best argument against execution." While not exactly arguing with that, I would like to point out that in the Spence memo Gonzales—actually, Stuart Bowen, in Gonzales's office, who wrote the memo—puts the wealth of evidence exonerating Spence (who claimed complete innocence) in a very concise, point-by-bulleted-point summary near the end of the document.
What makes the Spence memo so egregious is that this information comes in a section headed "Publicity," in which the efforts of a businessman from Waco to stop Spence's execution are dismissed as a "crusade." The litany of exculpatory evidence, some newly found, even buried as it is in this section, leaps off the page as something that should be noticed and dealt with. Bowen/Gonzales tries to counter each point but in the end relies on such things as a prosecutor's "absolute belief" that Spence was guilty and the fact that various courts upheld the conviction. The straining to reach a preordained conclusion is transparent—and has correlatives in the intelligence reports that were used last fall to bolster Bush's call for war.
David Spence, I'm told, may soon be proved absolutely innocent of the crimes for which he was executed. Should that day come, Bush and Gonzales will certainly say they didn't have all the information at the time of the execution. But the memo Bush perused on that execution morning contained enough information for any rational person to realize that something was terribly wrong and the needle had to be stopped.
New York, N.Y.
Alan Berlow replies:
Contrary to Pete Wassdorf's assertion, "what the governor knew" and when and how he knew it are precisely the issues I examine. The record is clear that what Bush knew came primarily from Gonzales's execution summaries. Wassdorf does not claim that these memos provided Bush with a thorough or balanced report on a single case. Instead he offers two principal arguments, unsupported by any evidence.
First, he says that the Gonzales summaries were "only the last of several communications" presented to the governor, implying that Bush was given other, presumably more detailed memoranda that contained the hard facts he needed to make tough decisions about who lived and who died. In each of the fifty-seven executions I examined, however, these communications are mysteriously absent from the files Bush turned over to his archive. And not one of Gonzales's execution summaries either attaches or makes reference to any of these earlier, presumably more elaborate exegeses.
An inventory of Bush "execution case files" prepared by the Texas State Library and Archives Commission makes clear that Gonzales's staff had access to voluminous records on each of these executions, including court records, correspondence from all interested parties, and more-detailed execution summaries (apparently prepared by the Department of Criminal Justice), along with attachments. Yet the archive reports "no indication that the Governor reviewed" any of this. "What the Governor did review are the execution summaries prepared by the General Counsel." My point exactly.
Wassdorf's second, and seemingly contradictory, line of defense is that the complex and conflicting arguments that arise in death-penalty cases were routinely vetted in "informal," "ad hoc" verbal encounters with Bush. That's a remarkable way to handle matters of life and death. These ad hoc briefings, moreover, are unrecorded in Bush's appointment logs. Nor have they, as far as we know, been memorialized by any of the attorneys present.
Wassdorf claims that Terry Washington's mental retardation was seriously discussed in the Gonzales summary and insists that Bush would have been advised of the arguments for and against clemency in this case. He provides no evidence, however. The passage Wassdorf cites happens to be the entirety of what the summary says on the subject. More important, as I noted, the summary fails to mention that none of this information was ever made known to any jury.
As for Doug Magee's assertion that a ruling he obtained from the Texas attorney general laid the groundwork for release of the files I report on—if that is the case, I am grateful. I do not, however, contend that Gonzales ever lacked the information necessary to write a comprehensive summary of any of these cases—only that his summaries were not comprehensive. Had George Bush desired a more detailed presentation, he could have asked for it. There is no evidence that he did.
Finally, Wassdorf is correct in asserting, contrary to Bush's own claims, that Bush could have granted clemency in any case where he saw fit to do so.
A new Deal for Teachers
Matthew Miller correctly identifies dismal teacher quality as the greatest weakness of poor school districts ("A New Deal for Teachers," July/August Atlantic). Offering higher pay to better teachers is an idea whose time has come. However, the measurement of teacher quality is critical, and Miller waffles on this issue.