“Did he do it?” is the question I inevitably hear from anyone to whom I tell Dominique's story. My answer is that I don't think so, but I am not equipped to provide a definitive answer.
Dominique usually insisted that he was not present when Andrew Lastrapes was shot. Is this possible? Yes. There is nothing in the case's meager evidence to prove that Dominique was present. The only thing that points to him as present (and as the shooter) is the testimony of three fellow robbers, who were as far from being disinterested observers as one could find and who had every reason to collaborate in pointing the finger at Dominique, the youngest and least protected of their quartet. Dominique's father, admittedly not an indifferent witness— though not as patently incredible as the three robbers— signed an affidavit that Dominique was at home with him at the time of the shooting.
But Dominique also told Andy Lofthouse that “‘nobody who ever admitted to doing anything ever got out of here.’ And he said that on repeated occasions. He said ‘I've been here a long time and I've never seen anybody who ever admitted to anything ever get out of here.’” This leads me to speculate that it is also possible that Dominique was present but was not the shooter, but that he also decided as a legal strategy not to admit this.
Dominique's impatient insistence on locating the tape of that night's events from the convenience store in front of which Andrew Lastrapes was shot certainly points us in the direction of one of the two scenarios above, since Dominique was certain that such a tape would exonerate him by showing another (whom he was unwilling to name) to have been the shooter. One could, I suppose, theorize that this was merely a ploy by Dominique, since he must have known that such a tape would long ago have been rendered useless, either by having been destroyed or by its contents having been taped over.
But Dominique's agitation on the subject of taped evidence goes back far beyond the appearance of Sheila Murphy on the scene. I am in possession of a pitiable letter written by Dominique in August 1994, barely a year after his conviction, complaining—to the first court-appointed attorney assigned to represent him in his appeals—that the tape must be found and pointing out that this is his third request. Given the faulty memory of his original lawyer, Melamed, and the refusal of Melamed's colleague, Diana Olvera, to be interviewed, there is no way of proving that Dominique asked them to locate such a tape, but the letter of 1994 surely points in that direction.
My own hunch is that one of the above scenarios, more likely the second, comes closest to what happened on that night. But I must admit that it is not outside the realm of possibility that Dominique was the shooter. The difficulty of properly accounting for real lives in cases like these is steeped in far more ambiguities, loose ends, dead ends, and unknowables than one would ever encounter on, say, American television's Law and Order. And when the evidence has been manipulated, suppressed, destroyed, forgotten, the obstacles to ascertaining the truth are very nearly insurmountable. It would be easier today to prove that the recently discovered dark matter of the universe is made of baba ghanoush than to prove the innocence of Dominique Green.
But why do we fixate on his innocence? On the “did he do it?” aspect of the case? What I see in the eyes of those who ask this question is that, if I cannot say unequivocally that Dominique was innocent, they are freed from any responsibility toward him. “Oh, well, who knows whether he did it or not, so let's talk about something else.”
But the first question an inquiring American should ask is not “Did he do it?” but “Did he receive a fair trial?” And the second question is like it: “Were his subsequent encounters with the law fair?” That is what we would wish, even what we would demand, for ourselves. To both these questions the answer must be a resounding no. His trial was monstrously unfair. And his subsequent encounters with the law were tragic farces, cat-and-mouse games played out in a legal arena run by people who had no intention of giving him justice.
Just prior to Dominique's execution, Andy Lofthouse, a brilliant law student whose deep involvement in this case probably cost him the editorship of the law review at Chicago's John Marshall Law School, was desperately leaving no stone unturned, hoping he might uncover some new route to a stay for Dominique. With nearly quixotic enterprise, he resolved to try once more to speak with Diana Olvera, who had acted as assistant counsel in Dominique's trial but had turned aside all of his and Sheila's requests to be interviewed. (“We tried to contact [her] probably ten times but she would never talk to us.”) He visited her office and was horrified to discover that she was now sharing an office with an attorney who had recently been hired to represent Michael Neal, one of those who originally fingered Dominique as Lastrapes's murderer. Michael Neal was already serving a thirty-year sentence. Why, Andy wondered, did he suddenly require a lawyer just as Dominique's case was being reviewed for the last time? Why was one of Dominique's original lawyers, who would never speak about her involvement in Dominique's case, now sharing an office with Neal's lawyer? And why was Olvera, despite the fact that she would not speak to Dominique's current lawyers, willing to sign an affidavit rebutting all of Dominique's charges of ineffective counsel, when it had been so obvious that the principal lawyer, Melamed, had been ineffective? Was there any way that all of this could be just coincidence?
The pitiable letter I mentioned above is dreary additional evidence that, very early in the game, the door to justice had been firmly shut on Dominique. The letter is worth quoting in full to demonstrate the powerless vacuum in which Dominique found himself Recall in reading it that at the time of writing Dominique was just twenty, a very young man whose only experiences were ghetto experiences, most of them negative. He was just beginning to develop an awareness of his true existential situation—of the inescapable trap in which he was now confined. Whereas he seems during his trial to have believed mistakenly that he was playing a kind of game that would soon end either in his release or in a relatively brief prison term, in this letter he has begun to account his conviction as a deadly serious matter and is attempting to summon the critical intelligence necessary to defeat the system in which he is trapped. But he is, as yet, rather far from the eloquence he would later develop. I reprint the letter here with its typos, misspellings, and other verbal peculiarities:
Michael P. Fosher
August 31st, 1994
The Lyric Center
440 Louisiana #2100
Houston, Texas 77002
Re: Information, Records, Documents of the trial of, Dominique Green, that he wishes to obtain and review that is presently in your possession which is the main primary objective of his concern.
Dear Michael Fosher:
Months and months have past since I last chose to write you asking for information regarding my case. And also sending material to you that I had hoped to help you. But somehow you failed to reply to my requests or even give me a responce. So with the utmost amount of patience, I have chosen to write to you again seeking the materials that I have requested, and am now requesting from you.
As you know, Mr. Fosher, I have sent you my two indictments. One is for aggravated robbery, and the other is for the crime I am charged with committing and convicted for, capital murder. When I had sent them to you some time ago, I also sent you alot of information I gathered from researching cases which I sincerely felt would affect or have an affect on the surface of my two indictments.
Also in my earlier stages of writing I also pointed out to you the importance to me it was of obtaining for my research my trial transcript and statement of facts, and also my co-defendants confessions. The trial record as a whole, but you also failed to comply and/or respond.
I have stressed the importance of all of this by even becoming some what hysterical or aggravated with you in one of my past letters of communication. Although, I did not mean to become blatantly upset. It just appeared to me that you did not feel as strongly about the value of my life that I did and still do. But, I do apologize for the hysteria.
But in regard to the other matters that I am writing about. I would only hope that you can fulfill my needs for this information.
In due time I have considered to began researching and fighting my case for my own personal interest. I am aware that there are certain issues that I cannot raise on direct appeal simply because they were never raised at my trial. So I would like to have all the information and documents either filed on my behalf or present to the trial court that convicted and sentenced me to death. By my trial attorneys, Sanford Melameade and Diana Olivera, so I can be knowledgeable of what issues are raisable and the others that are not raisable. Instead of taking someones word for it.
I also seek and hope for you to return my indictments to me along with any cases information that I may have sent to you. So that I may begin my research again. I have not been able to because everything that I have sent to you, you have kept them. But however you fail to reply to my letters.
I also would appreciate it if you could take time out to send my trial records at your convienance which I hope is as soon as possible. If not the original could you at least send me a duplicate copy of everything in your possession regarding my case. I fully understand that this information must be in your possession, because you are currently in association with handling my case on direct appeal. For possible appellant relief through the Court of Criminal Appeals or via Writ of Habeas Corpus.
My last concern regards a videotape from a store my co-defendants mentioned during my trial to implicate me as being with them that time the murder I am charged with committing was committed. I also brought this to your attention in at least two letters I had written to you when I had first begin writing to you sometime ago.
However you mentioned nothing about that either. Instead I met a attorney that was and is helping me with my case to the best of all of his abilities. But a problem lies with obtaining this videotape. I feel that since you were appointed to my case and he works for a law firm, you would have less difficulties retracting this videotape. I was informed by him that his firm wont allow any use of funds for my investigation until my case has been ruled on. But obviously since you are appointed by the state. The state would have to afford you the cost of a investigator to go and recieve this critical evidence. I say critical, because the tape wont not only prove I was not involved, it would clearly exonerate me of this crime. So could you please contact Brent E. Newton, (713) 522-5917, For more details about this videotape. Because as I understand it each store has a different policy about their videotapes. I am concerned that by the I am eligible for funds to be meted out for investigators to help me that corporate policy may expire for the keeping of such store videotapes. Then I will be left with no actual proof of innocense only doubt.
I again humbly and respectfully implore you to fulfill my needs with the information, documents, etc. that I have requested. Or will also later request to further assist me. Before matters become extremely, to late.
I sincerely appreciate the time you have afforded me in reading this communication. I also know and respect the fact that you have numerous other cases that demand your time and attention. But please give this letter the respect and consideration I feel it deserves.
I look forward to hearing from you soon.
Sincerely
Dominique Green #999068
ELLIS I UNIT G-15
HUNTSVILLE, TX 77343
cc: file
This letter gives us a hint of the immensity of the forces that a poor convict is up against and of the anguish of the losing situation that an intelligent but resourceless person is likely to find himself in should he have the misfortune to be convicted—or even accused—of a crime in the State of Texas. Dominique is begging—and has been begging for a full year— to receive documents that would have been given him as a matter of course elsewhere. Similarly, his urgent requests that the acquitting security tape from the convenience store be located and viewed have fallen on deaf ears. What is going on here? Why is the lawyer so unresponsive?
In the issue released just before Dominique's execution, Texas Monthly featured a courageous article by Michael Hall entitled “And Justice for Some,” which lifted the veil on the Texas justice system. Sheila, who always felt she was leaving the United States when she journeyed into Texas, read the article and thought that at last she understood what had been transpiring all along. I remind the reader that one Texas court, the Court of Criminal Appeals (CCA), the highest criminal court in the state, which handles all criminal appeals (while the Texas Supreme Court handles civil matters), was responsible for denying several of Dominique's most important appeals (see page 32).
As revealed in the Texas Monthly article, this court is “ruled by a bunch of pro-prosecutor, right-wing ideologues with one goal in mind: keeping inmates behind bars no matter what.” Tom Price, a (usually dissenting) judge on the court, calls it “a national laughingstock.” But it is no laughing matter to the many petitioners whose cases Michael Hall recounts: for instance, Roy Criner, a twenty-one-year-old logger, whom the CCA meant to keep in prison forever, even though multiple DNA tests proved that he did not commit the rape he was convicted of; Ernest Willis, drugged with powerful antipsychotic medicines in the months before his trial, “turning him into a drooling zombie, something the prosecutor made full use of in front of the jury;” and many, many other defendants.
The unfortunate Willis was convicted of setting fire to a house in a Texas town that killed two women. When his appeals attorneys uncovered evidence of the drugging, as well as evidence withheld by the prosecutor, both of which Willis's court-appointed attorney had gone along with, his trial judge wrote a thirty-three-page opinion recommending a new trial, which the CCA turned down. A federal judge intervened in 2000 to remove Willis from Death Row—the first inmate to walk free in nearly four years. Without question, the judges of the CCA knew that Willis was innocent, but their policy was not to let anyone go. Roy Criner escaped their clutches only because the PBS show Frontline featured his case in an episode called “The Case for Innocence.” This was also in 2000, and the notoriety occasioned by the program that summer clashed with George W. Bush's aspiration to be president. So the then governor made a single exception to his oft-stated policy of abiding by the decisions of the CCA and released Criner.
In 1994, “on the heels of Bush's successful run for governor,” writes Hall, “Republicans swept into statewide office.” Among those swept in was a little-known lawyer named Sharon Keller, now well-known as “Sharon Killer,” who was soon to become the CCAs “philosophical leader” and in 2000 its presiding judge. Her mission, in part, has been to refuse reviews and retrials to anyone who could not “establish innocence”—a totally new standard and one that is virtually impossible to meet. More and more, writes Hall, the judges of the CCA were “ex-prosecutors whose main goal seemed to be to satisfy the state's appetite for execution.” It may come as a surprise to non-Texans that “the judges on the CCA are elected politicians,” who get themselves elected by being “careful to paint themselves as tough on crime and criminals, whatever the cost.”
Judge Keller's rulings have been consistently shocking. When, for instance, the case of Cesar Fierro, a Mexican immigrant, came before her, it was because it had been discovered, after Fierro had spent fifteen years in prison, that he had confessed to murdering an El Paso taxi driver only because the local police had told him that if he didn't confess, their Mexican colleagues across the border in Juarez would torture his mother and stepfather, whom they had taken into custody. Keller's conclusion: “We conclude that applicant's due process rights were violated. But, because we conclude that the error was harmless, we deny relief.” By this move, Keller actually changed the standard in capital habeas cases, making the effective use of habeas corpus virtually impossible.
Fierro has now been on Death Row for twenty-eight years and, as I write these words, is facing imminent execution, despite the recent affliction of serious mental illness. There is simply no evidence that he committed the murder. “This,” said a heroic Texas lawyer who has spent much of his life defending indigents, “is a brutally tragic case.” Perhaps Keller's most famous denial of a stay of execution was in the case of Karla Faye Tucker, who made the mistake of asking George W. Bush for mercy, a plea that he ridiculed notoriously to the journalist Tucker Carlson after her execution.
Hall makes the obvious recommendation that the CCA should be disbanded and its duties to rule on requests for review turned over to the state's Supreme Court, as is done in every other state except Oklahoma. A central problem of the Texas system, however, aside from the current predisposition of the CCA judges, is that the state has no set standards for the appellate lawyers whom the CCA appoints to handle criminal appeals. Till recently—and of course at the time of Dominique's trial—it had no set standards even for courtappointed trial lawyers nor any set procedures for appointing them! Orlando Garcia, a federal district judge, has spoken out against the arbitrariness of the way the CCA appoints lawyers to represent poor clients: “My biggest concern with the court is how it goes about appointing lawyers. Who does that? Is there an application? Or does any judge just add any attorney he wants?” In one of the cases that came before him, Garcia granted a stay of execution after deciding that the CCA's appointment of the lawyer was “a cynical and reprehensible attempt to expedite petitioner's execution at the expense of all semblance of fairness and integrity.”
“A good lawyer,” writes Hall, “can save a man's life, or at least give him a fair shot. A bad lawyer or just an inexperienced one—intimidated by the state's staff of efficient assistant DAs, ignorant of the art of investigation or the fine points of evidence, overwhelmed by the paperwork and deadlines—can send a man to Death Row.” Texas's penchant for paying its lawyers a pittance to defend indigent clients (in contrast to the substantial funds expended by comparable states, such as California) hardly helps matters. The truth is that Dominique never had a fair shot; he never even had a chance. He was convicted and executed by a system that has no regard for fairness and no regard for human life.
Well, that may be too broad a charge. This system seems to have had quite a lot of regard for the life of Patrick Haddix, the white coconspirator. But it is a system that regularly—and we might even say, as a matter of course—discriminates against the poor and minorities (and God help you if you're poor and a member of a minority). As a young, conscientious, white lawyer told me with almost uncontrollable rage in his voice, “In Texas, the object is to fry as many niggers as possible.”
Since 1976, when a more conservative U.S. Supreme Court once again gave the go-ahead to state executions (after some years in which the practice had been deemed “cruel and unusual” under a more liberal Court consensus), Texas has succeeded in executing 425 people, all poor, most from minorities. The next largest state count is Virginia's, with 102 executions. After that, the numbers (at least outside the South) drop sharply, while many states (and more each year) have stopped executing altogether.
Even in Texas, there is not a uniform thirst for execution. By far the most executions stem from sentences in Harris County, where Houston is located and where Dominique was tried.∗ Recently, Harris County District Attorney Chuck Rosenthal, an ethnic Jew whose membership as a Southern Baptist had greatly helped his rise to political prominence, had to step down after a series of his racist e-mail messages was made public. (Also, sexist e-mails. What a surprise.)
The conduct of criminal law in Texas is a judgment not only on Texas but on all American lawyers and jurists and, in the end, on all Americans. Texas, after all, is not a foreign country but an integral part of the United States of America. It is not enough to bemoan the strange vindictiveness of Texans, then wring one's hands and turn to other things. (Are we satisfied that justice should thus depend on geography?) Nor is it enough to limit one's attention only to the use of the death penalty, whether in Texas or elsewhere. The terrible fate of Dominique was bound up in a skein of ugly, mismatched threads, which are the social causes of his suffering and death. The first, and perhaps the most obvious, cause may be found in society's indifference to its threatened children. How easily we ignore the cry of poor, abused, and neglected children. How few are the effective programs of intervention that we have created to help them and their confused, beset, screwed-up parents. The Mexican-American journalist Joe Loya—a friend of mine, a softhearted soul who spent many years in prison for his role as the fearsome Beirut Bandit, who had a long winning streak robbing banks up and down California— once said to me, “I never met a man in prison who had not been beaten by his father or his mother or abused or abandoned.” Are we really so dull-witted, so uncreative a society that we can come up with no better response to the plight of such children than the inadequate social welfare programs sponsored by most states, as our governments bide their time till these unfortunate children grow old enough to be incarcerated?
A second cause may be found in our indifference to criminal law and to legal procedures that we assume will never involve us (so why should we need to be concerned?). The way our society treats its most vulnerable and unprotected citizens is a judgment on all of us who have the money to purchase and read a book—and therefore are likely to have the money to purchase adequate legal assistance. We all need to familiarize ourselves with the injustices that have been done—and continue to be done—in our name.
In addition to the necessary reform of criminal law and of legal protections for indigent and near indigent defendants, we have an obligation to protect prisoners from arbitrary indignities and cruelty. There is no good reason, for instance, that Death Row inmates must be kept in solitary confinement. Desmond Tutu nailed it when he called that a form of torture.
So in the last section of this book, I make a few suggestions for your continued reflection and involvement in three areas of our social life: the protection of children, the end of the death penalty, and the humane reform of prisons. The first list offers additional books, reports, and Web sites that some readers may wish to consult. The second list offers a short series of organizations, one or more of which you may wish to join and support with contributions of money and/or labor, or from which you may wish to request assistance for a project in your community.
It may be stated unequivocally that there are no good arguments in favor of the death penalty. On the one hand, it is not a true deterrent, since states without the death penalty inevitably have far lower murder rates than do states that allow capital punishment. Life without parole, on the other hand, always holds out the possibility that subsequent evidence will exonerate a condemned prisoner. If he has already been executed, an eventual reversal of his conviction will be more ironic than exonerating. The likely estimate is that one in every eight prisoners executed is innocent. Life without parole costs a state much less than does an execution. A 2005 New Jersey report, for instance, found that the state's death penalty has cost taxpayers $253 million since 1983 without succeeding in executing anyone. This is because New Jersey's safeguards for criminals are more generous than those of Texas—that is, more fair—but all states that execute spend considerably more on executions than they would have spent on life without parole.
The figures cited here may easily be confirmed by consulting the Death Penalty Information Center and other reputable sources. The reason that it costs far more to execute a prisoner than to keep him in prison for life lies in the state's costs in responding to the legal appeals that the prisoner files subsequent to his conviction. The Joint Legislative Budget Committee of the California Legislature, for instance, found in 1999 that “elimination of the death penalty would result in a net savings to the state of at least several tens of millions of dollars annually, and a net savings to local governments in the millions to tens of millions of dollars on a statewide basis.” While it would be possible to shorten the appeals process, this could be accomplished only by eliminating the protections guaranteed to every citizen by the U.S. Constitution.
That states that execute tend to execute the poor and minorities is an assertion not open to contradiction. As Supreme Court Justice Harry Blackmun said in 1994, “Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.” About 40 percent of the people on Texas Death Row are black, as opposed to 12 percent of the general Texas population. As for the race sensitivity of our criminal justice system, it has been shown that even prosecutors in Philadelphia, where one might expect race to play a lesser role, attempt to remove 52 percent of potential black jurors while trying to remove only 23 percent of all other potential jurors. If they do this in the green tree of Pennsylvania, the racially stacked juries of dry-tree Texas should come as no surprise.
Almost all Christian churches are now opposed to the death penalty on moral grounds—the most prominent exception being the Southern Baptists, who constitute the second largest Christian denomination in the United States.∗ Once again, as when we found ourselves in the hospice at Huntsville, we find ourselves faced with a theology of extreme Calvinism that, one cannot help but notice, shares something in common with the cruel urges of primitive peoples toward acts of human sacrifice. A Calvinism that depicts God as demanding the death of his son as expiation for human sin, as arbitrarily assigning some to eternal happiness, others to eternal damnation, may have little trouble offering up some lives— especially those of the poor and marginal—to the executioner. Take him, not me! is the ancient cry of those who believe in a God of vengeance rather than of love.
Which brings us to the title of this book. In what way do I propose Dominique as a saint? Certainly, in the common sense of the word, “saint” as a person of extraordinary kindness and patience. Dominique was hardly a saint in his early years, but I think we may speak of him this way in his last years as a fully achieved human being.
The three largest Christian denominations in the world— Catholics, with more than 1.1 billion adherents; Orthodox, with nearly a quarter billion; and Anglicans, with more than 80 million—together representing two-thirds of the Christians on the planet, all speak of saints as those among the dead who we know are with God and to whom it is therefore appropriate to speak and to ask that they pray with us whose earthly journeys are unfinished. I would also propose Dominique as a saint in this more theological sense. There are not a few whose lives he touched who view him in this way who believe they speak to him and that he hears and answers them, even that, as he promised on his last day of life on this earth, “Where I'm going I'm going to take care of everybody.”
However that may be, Dominique was not buried in Huntsville's brutal burial ground. His ashes were brought to Rome by Dave Atwood and his wife, Priscilla, and today they rest in the shadow of the beautiful Basilica of Santa Maria in Trastevere, in the dignified entrance hall to a seventeenth-century palace, which is now the home of Sant'Egidio's refuge for abused and abandoned children. His carved memorial stone reads:
DOMINIQUE J. GREEN
HOUSTON 13 V 1974-HUNTSVILLE 26 X 2004
BROTHER AND FRIEND
It is the Lord who sets out the steps of a man
and takes pleasure in his journey.
Though he fall, he will not be sent sprawling—
For the Lord is holding him by the hand.
Psalm 37
∗ Till lately, Dallas County vied with Harris for the distinction of being the most unjust county in Texas. But Dallas now has as its district attorney Craig Watkins, the first black district attorney in Texas history Watkins has partnered with the Innocence Project (see Chapter 7) in reviewing DNA evidence from old convictions—convictions won in cases tried by the legendary Henry Wade (of Roe v. Wade), who served as Dallas County's district attorney for thirty-seven years and regularly withheld exculpatory evidence from the defense and from the jury During Wade's tenure it was well-known that if you were charged with a crime, you were almost certain to be convicted. So far, the convictions of seventeen prisoners have been overturned on the basis of DNA reviews; one prisoner, James Woodard, had served more than twenty-seven years in prison before his exoneration. Two hundred fifty additional cases remain under review.
∗ The American Baptists, however, are opposed to the death penalty. Disagreements of interpretation over the authentic Baptist tradition, which was once a more oppositional form of Christianity than it tends to be today, have caused many prominent Southern Baptists—including Jimmy Carter, Bill Moyers, and Bill Clinton—to leave the fold or to rethink their commitment. The novelist John Grisham, whose fictions have done so much to dramatize the moral dilemmas of American life, calls himself “a moderate Baptist” and has said, “I'm a Christian, and you'll never convince me that Jesus taught revenge killings are what Christians are supposed to be doing.” On the other hand, many Roman Catholics, despite the stance of their church, favor the death penalty. So there is often enough a significant disjunction between a church's stated position and the opinions of its members.