Commentary: Daniel T. Kobil
Perry's duty: Show mercy to Joe Lee Guy

SPECIAL TO THE AMERICAN-STATESMAN
Tuesday, June 8, 2004

Unless Gov. Rick Perry rethinks his constitutional duty to grant commutations in appropriate cases, a tragic injustice could soon befall Texas Death Row inmate Joe Lee Guy. Perry appears hesitant to grant clemency to Guy, despite unprecedented agreement among trial officials that Guy's death sentence should be commuted. A presiding judge, the district attorney and two sheriffs from Hale County, where Guy's crime occurred, all support clemency. And in a rare move, the Texas Board of Pardons and Paroles in January unanimously urged Perry to commute Guy's death sentence.

This support for clemency among those who would ordinarily advocate carrying out the execution might seem surprising, until you learn of the circumstances that led to the death sentence. Guy was convicted of felony murder for acting as an unarmed lookout in a robbery during which storekeeper Larry Howell was killed and his elderly mother wounded. In a striking instance of sentencing disparity, Guy received the death sentence, while the actual killers and instigators of the crime were given life sentences.

For most chief executives, such disparity in punishment would be considered adequate grounds for clemency. In 1857, President James Buchanan commuted a death sentence after others involved in the murder received only prison sentences -- because, he said, the inconsistency would "impair and diminish that absolute confidence which ought to be reposed in a verdict in which the life of a human being is to be taken away."

Ohio Gov. Thomas Herbert, faced with a similar situation in 1948, set aside a death sentence, not out of sympathy for the defendant, but because "in America we pride ourselves on doing comparative justice." More recently, authorities in North Carolina, Florida, New Jersey, California and Georgia have commuted death sentences owing to sentencing disparities comparable to that confronting Guy.

Yet the case for clemency for Guy rests on more than this disparity. Guy's trial was appalling in its inadequacy. According to court filings, his defense attorney was addicted to drugs and even snorted cocaine in the car on the way to the courthouse for Guy's trial.

As if this weren't bad enough, the attorney hired an untrained "investigator" who developed an inappropriate relationship with the surviving victim, which caused her to name the investigator as heir to her substantial fortune. In an affidavit, the investigator later admitted this relationship "caused me to conduct my investigation in a way that was damaging to Joe Lee Guy getting a proper defense."

The clemency power, which in Texas is vested in both the Board of Pardons and Paroles and in the governor, is designed to remedy such flagrant injustices. Although the board has done its job in recommending clemency, Perry has been reluctant to act on its recommendation, choosing to wait and see whether the federal courts will intervene.

His inaction is wrong. The narrow review that federal courts give to habeas corpus petitions is far less suited to remedying Guy's death sentence than the governor's broad clemency authority. Complicated legal technicalities often prevent federal courts from acting, even in the face of blatant errors. But the opposite is true of the governor: once the parole board has made a favorable recommendation, he is duty-bound to consider all of the circumstances and act to remedy profound injustices.

Perry's "wait-and-see" approach assumes that clemency today is little more than a quasi-judicial appeal that should be denied if the courts don't act. Indeed, Perry voiced this view in refusing to follow a recommendation that clemency be granted to mentally ill inmate Kelsey Patterson, noting that the courts had "determined there is no legal bar to execution." Patterson was executed last month.

This is a myopic vision of clemency. Historically, Americans have vested their executives with unique authority to remit punishments meted out by the courts. As Alexander Hamilton explained, the clemency power is needed to assure that justice is not "too sanguinary and cruel."

What our country's founders appreciated is that clemency is a proper, necessary part of our justice system that can allow -- indeed, require -- the executive to act as a check on the courts. And in exercising this power, governors have a responsibility to look at each clemency case in way that is different from how the courts do.

Looking dispassionately at Joe Lee Guy's troubling story, it is difficult to imagine a more compelling case for clemency. We can only hope that Perry becomes aware of the importance of discharging his vital responsibility before it is too late.

Kobil teaches at Capital University Law School in Columbus, Ohio, and writes extensively on clemency issues.