What’s the definition of a ruthless Texan politician? Someone who will do anything to get elected–even not kill someone.
This joke comes pretty close to describing the reaction to George W. Bush’s decision to grant a 30-day stay of execution to Ricky McGinn. When Bush said McGinn, who was convicted of raping and murdering his 12-year-old stepdaughter in 1993, should have the benefit of a DNA test before he is lethally injected, everyone assumed the worst about the governor’s motives. In his own state, Bush was criticized by the prosecuting attorney and others involved in the case who said that there was no doubt about McGinn’s guilt. In the national press, Bush was castigated for showing only selective, self-interested mercy. Commentators pointed out that the presidential candidate’s worst nightmare would be a DNA test that posthumously proved McGinn’s innocence.
Bush, of course, took umbrage at the suggestion that his decision in the McGinn case had anything to do with politics. He responded by saying that he had used the same standards he had applied in more than 130 previous death-penalty decisions. A statement of Bush’s principles is included in his book A Charge To Keep. “Early in my administration, I decided the standards by which I would decide whether to allow an execution to proceed,” he writes. “In every case, I would ask: Is there any doubt about this individual’s guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?”
Has Bush applied these standards consistently? In his book, Bush cites two examples of clemency decisions, one in which he intervened to stop an execution and another in which he did not. Bush did not step in to halt the execution of Karla Fay Tucker, despite her being the most sympathetic of death-row inmates, because, as he has said numerous times, there was no doubt about Tucker’s guilt and it’s not up to him to second-guess a jury’s decision about appropriate punishment. Bush did, however, intervene and commute the death sentence of Henry Lee Lucas, an utterly unsympathetic character who confessed (falsely, as it turned out) to 600 killings and was sentenced to die for a murder he probably did not commit. This was the only capital case in which Bush intervened until Ricky McGinn came along.
But Lucas’ case isn’t directly comparable to McGinn’s. There was serious doubt about Lucas’ guilt, based on evidence that he was in Florida the night that the murder he was convicted of committing took place in Texas. In McGinn’s case, by contrast, there is only a scintilla of doubt about his guilt–the same quantity that has been present in many cases where Bush has failed to block executions. What makes McGinn’s situation compelling is that there happens to be a means of resolving that speck of doubt–a DNA test comparing a pubic hair found on the victim to one belonging to the condemned man. Bush could argue–though he hasn’t in so many words–that he is being consistent in adding a small codicil onto his primary condition: Even a flicker of doubt compels a delay where DNA evidence provides a means of putting it to rest.
The problem with introducing this subtlety into his decision-making standard is the decision Bush made in the case of Jerry Lee Hogue. (“Lee” seems to be some sort of honorific applied to killers in Texas.) Hogue, who was also convicted of a rape-murder, was executed two years ago after Bush denied his request for a reprieve.
Hogue’s crime was killing a woman by setting her house on fire after raping her. He continued to proclaim his innocence to the very end, blaming the crime on one of the two witnesses whose testimony convicted him. What made Hogue’s protestations somewhat credible was that the man who pinned the crime on him, Steve Rennick, lost his own home years later in a fire that bore similarities to the one Hogue was convicted of setting. Joseph Stewart, an arson investigator who now serves as a deputy sheriff in Texas, wrote to Gov. Bush explaining his doubts about Hogue’s guilt and asking for a 30-day reprieve to allow for DNA testing of a pubic hair sample taken at the time of the crime. After Bush denied the request, Hogue ate his final cheeseburger and was executed (in a final indignity, the Texas Department of Criminal Justice immortalizes the last meals of the condemned on its Web site). This case was featured on 60 Minutes II in April. CBS News offered to pay for a DNA test, but 21 years after the crime and two years after the execution, the State of Texas was unable to locate the necessary sample.
Hogue may well have been guilty, just as McGinn may be. But every distinction that you can draw between the two cases favors Hogue, not McGinn. There was more doubt about Hogue’s guilt than about McGinn’s. But Bush wouldn’t delay Hogue’s execution in order to allow a DNA test that would have settled the question once and for all, as he has done for McGinn. On the basis of these two cases, then, Bush’s clemency record falls far short of consistency, or even a rudimentary sense of justice.
But Bush is in good company. In the 1992 presidential campaign, the political climate of the time encouraged Arkansas Gov. Bill Clinton to sign the death warrant for a mentally damaged convict named Ricky Ray Rector. And perhaps it counts as a small moral advance that the atmosphere of the moment impels Clinton’s no less expedient, would-be successor to think twice before declaring a precipitous end to Ricky McGinn.