BETTY ANN BOWSER: In 1992 George McFarland was tried, convicted and sentenced to die for the murder of a Houston convenience store owner. The trial lasted less than three days--and through much of it one of McFarland's attorneys was asleep.
GEORGE McFARLAND: So I'm nudging him with my feet--what are you doing--wake up! So later that day I asked him I said: "Well what happened?" "Oh, I was just tired." And I asked him, I told him, I said, "Man, I'm fighting for my life here. You're supposed to be helping me"--"Oh, I got it under control George." He always told me: "I got it under control."
BETTY ANN BOWSER: McFarland appealed his conviction to the Texas criminal court of appeals, citing, among other things, ineffective counsel. The appeals court said it "did not condone" the behavior of the attorney but ruled that because there was a second lawyer present during the trial McFarland failed "to make any showing that he was not effectively represented" added Congress in here.
Now McFarland wants to go into federal court to seek relief through habeas corpus--a legal term meaning he is alleging his constitutional rights have been violated. But under the anti-terrorism-Effective Death Penalty Act passed by Congress in 1996, it will be harder for him to do that because the new habeas corpus law places a time limit on death row inmate appeals ; streamlines the entire appellate process; and may limit inmates' ability to appeal state court decisions in the federal system.
Before the new law, McFarland could make one appeal after another sometimes on the same issue. University of Houston Law Professor David Crump says the law is designed to do what is says--make the death penalty more effective.
DAVID CRUMP, University of Houston: It's supposed to decrease the extent to which you have the endless habeas corpus loop. That was the effect of successive habeas corpus petitions filed by inmates on death row. And the idea is to shorten the length of time, which sometimes got to be 15 to 20 years, to a more manageable, more realistic time frame.
BETTY ANN BOWSER: George McFarland's attorney, Paul Wickes, says the new law will mean death row inmates will lose some of their rights.
PAUL WICKES: Just the title of the law, it seems to me, is sort of chilling--the Effective Death Penalty Act of 1996. I think it means that people like George McFarland, people on death row in Texas and Florida and those states that have a lot of death sentences believe that their chances at a fair shot are substantially reduced over what they were several years ago.
BETTY ANN BOWSER: Texas has executed 24 people this year alone, more than any other state. There have been so many--two in one day--three in one week--that anti-death penalty protestors no longer routinely hold vigils outside the prison walls. Since 1976, when the death penalty was found to be constitutional, Texas has executed 131 people but most southern states--Virginia, Florida, and Georgia--are executing more people than ever before. Most of those who are put to death have run out of appeals. Now, under the new law, inmates like McFarland fear the pace will quicken.
GEORGE McFARLAND: It's a scary thing when you see a man walk by you and know he's not coming back. To make a federal court hear this case under the new anti-terrorist bill, you would have to have 101 percent proof of your innocense to even get them to bat an eye at it.
BETTY ANN BOWSER: In February, the American Bar Association called for a moratorium on executions in the 38 states that have the death penalty. In a report that was adopted overwhelmingly by the ABA Convention, the organization said, "Administration of capital cases has reached a point of crisis." Bill Taylor chairs the ABA's criminal justice section.
BILL TAYLOR, ABA: There is a sense that there is a randomness about the death penalty and the way in which it is administered in this country that deserves some very serious attention, and, in particular, the ABA's concerned about the quality of appointed counsel, particularly at the trial level.
BETTY ANN BOWSER: And in a friend of the court brief filed in a federal case last year, the ABA said if the Effective Death Penalty Act is not applied correctly, it could be unconstitutional. But 78-year old Pat Teer supports the new law because she has been waiting 21 years for the state of Texas to execute the man who murdered her son.
PAT TEER: This is Mark's graduation picture. And he always--
BETTY ANN BOWSER: From high school?
PAT TEER: Yes. And he always wanted to be a law enforcement officer. That was his dream.
BETTY ANN BOWSER: In 1976, Teer's son--state trooper Mark Frederick--was shot to death on an interstate highway. A drifter from Alabama--Billy George Hughes--was twice convicted of the murder and sentenced to die, but because of his right to appeal, Hughes has been to court 55 times and so far remains on Death Row in Huntsville, Texas.
PAT TEER: Everything is Billy Hughes' rights. He has one right-- another right--another right-- another right. Mark didn't have any rights. I just thought the system worked; that there would be a trial, and then there would be a couple of appeals at the state and the federal, and that the results would be the ultimate. And I had no idea that 21 years later, that I would be going through the process.
BETTY ANN BOWSER: Teer belongs to a victim's rights group in Houston called Justice for All that supports the 1996 legislation. Dudley Sharp is a spokesperson.
DUDLEY SHARP, Justice for All: Habeas corpus has been abused so much over the past 15 years to extend the life of guilty persons in jail that had no reason to get out, that the states and the federal government have finally taken action and made sure that those abuses do not continue.
BETTY ANN BOWSER: Clarence Brandley, who was released from death row in 1990, says if the appeals process is cut short, innocent people could be executed. Brandley was convicted of murdering a Conroe, Texas girl in 1981 and was on Death Row for 9 years. It took seven years of those years before witnesses agreed to come forward and exonerate him and allow him to return to his church and friends. Today he is a lay minister and says if the 1996 law had been around when he was convicted, the eventual outcome of his case might have been dramatically different.
CLARENCE BRANDLEY: I think that a lot of times we are more apt to rush to judgment quickly, but in my particular case there was a lot of things that came out after the trial and if I didn't have the time, I wouldn't be here today.
BETTY ANN BOWSER: Mike Deguerin is Brandley's attorney.
MIKE DEGEURIN, Clarence Brandley's Lawyer: I think that the people, that the many, many people who wanted this legislation, have callously decided it's okay; that a few innocent people die so that we don't have to waste all this time on frivolous appeals. I think that's kind of a sad turn of events in our society.
BETTY ANN BOWSER: But law Professor Crump, author of a book on capital punishment, says the 1996 act will not result in innocent people being executed. He thinks the law will stop the guilty from using time to avoid the death penalty.
DAVID CRUMP, Law Professor, University of Houston: After along period of time the facts are much easier to manipulate. I mean that is the fact of the matter. If the argument is we need to have 10 to 20 years in order to create doubts about guilt, then the reason is because we're not accurately reflecting what the evidence really was at the time.
SPOKESMAN: We are here today to support our brothers and sisters--
BETTY ANN BOWSER: The National Coalition to Abolish the Death Penalty is opposed to the new law. And in its current campaign to have the death penalty abolished altogether, it is using demonstrations like this one to bring attention to the number of executions taking place in Texas.
SPOKESMAN: We are here today to speak out for the inhumanity and the shame that Texas brings to not only the United States but to the world and to humanity.
BETTY ANN BOWSER: Steve Hawkins is director of the coalition.
STEVE HAWKINS: I think a lot more people are going to die in this country who are on Death Row, and I think more people who are innocent are going to die in this country as a result of the anti-terrorism bill, so I think times will get worse but they will then begin to turn around as people begin to really examine why we are one of the few countries that still uses this punishment.
BETTY ANN BOWSER: Polling shows the protestors are in the minority. In a recent Time Magazine national poll when Americans were asked if they support the death penalty for serious crimes, 74 percent said yes.