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Senator Patrick Leahy met with Alberto Gonzales on Nov. 17. (AP Photo)

Sen. Leahy said he likes Gonzales and lauded Bush for naming him attorney general. Not so fast, please.

ASK THIS | December 02, 2004

Despite Leahy's compliments, it would be a disservice if members of the Senate Judiciary Committee go easy on Alberto Gonzales — and if the press lets them. Here are 50 or so pointed, important questions committee members should ask, offered by Alan Berlow, an author who has followed Gonzales closely.

By Alan Berlow

Q. Do you believe that torture is or should be legal? Under what circumstances?

Q. If, as you have written, the Geneva accords are "obsolete," should the U.S. formally abrogate the treaties?

Q. How would you address the Pentagon's concerns that efforts to undermine the Geneva conventions would undermine respect for the law in the military and endanger U.S. soldiers who are taken captive?

Q. Do you agree with Attorney General Ashcroft that federal judges "can put at risk the very security of our nation" merely by examining the constitutionality of presidential decisions in the war on terrorism?

Q. What is your understanding of Article VI of the Constitution vis a vis the obligations of individual states to abide by U.S. treaties?

[Follow-up questions:]
Q. Why did you write the State Department in June, 1997, that "since the state of Texas is not a signatory to the Vienna Convention on Consular Relations, we believe it is inappropriate to ask Texas to determine whether a breach" of the Vienna Convention occurred in connection with the execution of Irineo Tristan Montoya, a Mexican national?

Q. Weren't you saying that Texas is not bound by a U.S. treaty? If so, are other states also exempt from the Constitution in your view? Can you cite some legal precedent to support this claim? [The Vienna Convention on Consular Relations requires law enforcement authorities to notify the consulate of a foreign national at the time of arrest so that the foreign government may provide legal aid or advice to its citizen.]

Q. Isn't it a fact that at the time you wrote this memorandum, Texas police officers were routinely violating the Vienna Convention by arresting Mexican Americans without notifying their consulates, and that your primary concern was to avoid establishing a precedent whereby any execution might be stopped due to such a violation?

Q.Since Governor Bush never saw fit to see that the Vienna Convention on Consular Relations was enforced in Texas, despite a record of hundreds if not thousands of violations, will you recommend that he abrogate this treaty now that he's in a position to do that?

Executing the mentally retarded

Q. The Supreme Court has ruled that executing mentally retarded individuals constitutes cruel and unusual punishment. As governor, George Bush opposed legislation to ban the execution of mentally retarded defendants? Do you personally see anything wrong with executing people with mental retardation or severe mental illness? Did you at the time you served as Bush's legal counsel in Texas? Did you make your views known to the governor?

[Follow-up questions:]
Q. If so, why didn't you voice any objection to the execution of Terry Washington, a retarded Texas defendant?

Q. In his autobiography, "A Charge to Keep," Mr. Bush said he wanted to be informed about instances where jurors had not been apprised of all the facts in a case. Did he ever inform you that he had an interest in that sort of information?

Q. Why did your three-page summary of the Terry Washington case fail to make clear to Bush not only that Washington was retarded but that his attorney had failed to make this known to the jury? Wasn't this precisely the kind of information the governor made clear he wanted to be told about?

Q. In the Washington case, the execution summary signed by Mr. Bush is missing page two, which contained your only references to possible mitigation. Do you recall if the governor read that summary before signing off on Mr. Washington's execution?

Q. In almost all cases of clemency in Texas you briefed Governor Bush on the morning of the execution for no more than a half hour. In nearly all of these cases there is no record of any briefing prior to this eleventh hour. Given the complexity of many of these cases, do you think it is appropriate for a lawyer to spend no more than 30 minutes on matters of life and death and to conduct the briefings when there is virtually no time left to research or follow-up on questions the governor might raise?

Q. Can you cite two cases in which Governor Bush asked you to conduct further research on a question raised by one of your briefings?

Q. Since 1973, 117 individuals have been released from death row due to evidence of innocence, including eight in Texas. The most recent was Ernest Ray Willis who was released from Texas's death row on October 6th, after spending 15 years there. Do you find those facts troubling? How serious is the danger that an innocent man or woman will be executed in this country?

[Follow-up question:]
Q. Would you support a nationwide study to determine why so many innocent people have been discovered on death rows in the U.S., and to come up with recommendations as to how such miscarriages of justice might be avoided in the future?

Q. Do you think that it's worth taking the risk that we may occasionally execute an innocent man or woman so that we can preserve the sanction of capital punishment? How many innocent people would you be willing to see executed?

The Stoker case

Q. In June, 1997, George Bush signed off on the execution of David Wayne Stoker after receiving a half-hour briefing from you. A federal appellate judge had concluded that it was just as likely that Stoker's chief accuser was the murderer as Stoker. The Fifth Circuit concluded that the conviction was based "wholly on circumstantial evidence." Do you think people should be executed based on circumstantial evidence?

[Follow-up questions:]
Q. In your written briefing of Bush on the Stoker case you failed to cite either that appellate judge or the Fifth Circuit's view that the evidence was circumstantial and you also didn't note that: 1) a key witness recanted after Stoker's conviction, explaining that he'd been pressured by the prosecution to present perjured testimony; 2) that the state's star witness received a financial reward for fingering Stoker, and had felony drug and weapons charges dropped the day he testified against Stoker, and therefore had an obvious motive for accusing Stoker; 3) that the star witness and two police witnesses lied under oath at Stoker's trial; 4) that the state's expert medical witness had pled guilty to seven felonies involving falsified evidence by the time you briefed Bush, raising obvious questions about his credibility and ethics; 5) that the state's psychiatric witness, whose testimony was essential to securing a death sentence, never even interviewed Stoker, and had, by the time you briefed Bush, been expelled from the American Psychiatric Association for repeatedly providing unethical testimony in murder cases. Were you aware of any of these facts? If not, why not? If so, why did you conclude that none of this information was relevant to a discussion of clemency?

Q. In your execution summary for Mr. Bush you noted that the Texas Board of Pardons and Paroles had voted to deny Mr. Stoker clemency. You did not, however, mention that Thomas Moss, a Bush appointee to the board, had voted to grant clemency. Did you or anyone on your staff discuss with Mr. Moss his reasons for voting to grant clemency? Are you aware that Mr. Moss favored a commutation because he believed Mr. Stoker may have been innocent? How many votes for clemency would be required before you brought them to the attention of the governor?

Q. As his chief legal adviser in a matter where a man's life hung in the balance, can you describe in general terms the kind of mitigating evidence you would have considered appropriate to present to the governor in a case such as Stoker's?

Q. Mr. Stoker's attorney said he was advised by your office a week before the execution that there would be no clemency. That was also a week before you briefed the governor and a week before your execution summary of the Stoker case was dated. Who decided a week before the execution that there would be no clemency? You? Or did the governor decide there would be no clemency in the case before receiving either your written or oral briefing?

Q. As counsel to Governor Bush you helped devise a two-part standard for considering clemency in capital murder cases. Under this standard Bush would only consider clemency in cases where there was evidence of innocence or evidence that the defendant had not had full access to the courts. How did you come up with this standard?

[Follow-up question:]
Q. By the time a defendant asked the governor for clemency, wasn't the full access to the courts "standard" satisfied by definition? Or, put another way, since a case would have had to go through all the courts before the governor would consider clemency, wasn't this standard effectively no standard at all?

Q. Why did you and the governor decide that he should not consider such traditional grounds for clemency as mental retardation, severe mental illness, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination in jury selection, incompetent legal counsel, or disparities in sentences between co-defendants or among defendants convicted of similar crimes?

[Follow-up questions:]
Q. In practice, wasn't absolute evidence of innocence the only factor the governor considered in contemplating clemency for death row inmates?

Q. Do you think the Bush standard, which apparently reserves clemency only for cases in which there is absolute proof of innocence, provides any sort of model for other chief executives to follow in matters of life and death? Is it a good model for a U.S. President to follow when considering federal death sentences?

Karla Faye Tucker

Q. The one clemency appeal President Bush says he devoted a huge amount of time to was that of Karla Faye Tucker. You yourself have said you began discussing Tucker's case months before the actual execution. And Bush said that executing Tucker "was one of the hardest things I have ever done." Yet Karla Tucker didn't fall within your dual-standard for clemency. She wasn't innocent. She admitted she had brutally murdered two people with a pickax, she never denied that she'd had a fair trial, and she said she deserved the death sentence she received. Why did the two of you devote so much time to her appeal for clemency - and so little time to all the others - when, based on your own standard there were no less than a dozen other cases more deserving of your attention? As legal counsel did you advise the governor that Tucker's case did not qualify for clemency? What sorts of concerns were raised in the Tucker case that were so unique, and were not uncovered by you or your staff in so many other cases? Did the enormous political and media pressure brought to bear in the Tucker case in any way contribute to your protracted ruminations?

Q. In the Karla Tucker case you wrote to the papal nuncio that Ms. Tucker's sentence can only be commuted by the Governor if the Texas Board of Pardons and Paroles recommends a commutation of sentence." Mr. Bush made similar statements about executions on literally dozens of occasions. Weren't you aware that these statements were, at best, a half truth, that the governor had it in his power to stop any execution he wanted, that he could have expressed his dissatisfaction or concerns to the Board of Pardons and Paroles about any case, and that he could have ordered the board to conduct an investigation into any area that raised questions in his mind?

[Follow-up questions:]
Q. Isn't that what happened in the Henry Lee Lucas case? Isn't it a fact that you didn't wait for a recommendation from the BPP before you wrote to your successor as legal counsel, Margaret Wilson, and told her she'd better look into the Lucas matter because they might be executing a man for a crime he didn't commit?

Q. Isn't it a fact that it was the legal counsel's office that instigated the commutation for Lucas and not the BPP, and that the governor's office could have taken the initiative in any case he wanted to achieve a similar result?

Q. Given that the evidence in this case was that Lucas was innocent, and given that he was already serving multiple life sentences for other murders, was it appropriate to recommend a life sentence for a crime Lucas didn't commit? Can you think of other cases where you would sentence someone to life for not committing a crime?

Q. Isn't it a fact that given the execution summaries you wrote in the cases of David Stoker, Terry Washington and Billy Conn Gardner, there is simply no way that Governor Bush would have known that there was any mitigating evidence or any legitimate issue that would have warranted consideration of clemency?

Q. Are you proud of the execution memoranda you wrote for Governor Bush? Do you think they presented a "fair and balanced" discussion of these cases?

Wrongful convictions

Q. More than 150 individuals have been proven innocent and released from prisons nationwide based on DNA evidence alone. Yet in most crimes, there is no DNA evidence. Do you think it is any less likely that people are being wrongly convicted in cases where there is no DNA? Do you think that wrongful convictions are a serious problem? If so, what would you do about it?

Q. Would you care to hazard a guess as to how many people are currently serving time in the nation's prisons and jails for crimes they didn't commit? Would you like to find out? How might you go about doing that?

Q. What, in your view, are the primary reasons people are being wrongfully convicted?

Q. Do you think it should be up to state bar associations to determine what constitutes competent counsel, as is presently the case? Do you think there's any danger of there being widely varying views of competence from state to state or even from county to county? Isn't it quite possible that a local bar association would deem competent an attorney that you might find totally incompetent?

Q. In Texas, courts have found lawyers competent who slept through trials, were drunk at trial or on drugs. Do you think there are attorneys who can perform competently in their sleep, while drunk or on drugs?

Q. Do you think it is appropriate that in many jurisdictions in this country, criminal defendants are being represented by attorneys who handle 500, 1,000 or more felony cases a year? Do you think a lawyer can competently represent all of those clients? What would your ballpark estimate be of how many felonies a competent attorney could handle in a year?

Q. Do you think there should be parity between the defense counsel and prosecution with respect to resources so that defense counsel is included as an equal partner in the justice system?

[Follow-up question:]
Q. Levels of funding for indigent defense are currently set by states and counties, which means that in some parts of the country levels are so low that providing competent counsel is a virtual impossibility. Do you think local jurisdictions should decide whether or not a poor person has a right to competent counsel?

Q. As attorney general, John Ashcroft overruled decisions made by local prosecutors not to seek death sentences in federal capital murder cases fully 33 percent of the time (in 42 of 128 cases). He also declined requests for death sentences from local prosecutors in eight cases. As attorney general do you expect to similarly involve yourself in decisions about whether or not to seek the death penalty?

[Follow-up question:]
Q. Mr. Ashcroft’s intent was clearly to increase the number of executions carried out by the federal government. Would you also like to see the number of federal executions increased? If so, why?

Q. Attorney General Ashcroft required U.S. attorneys to clear all plea bargains with him. Do you intend to continue that policy?

Article: The Texas Clemency Memos
Berlow's article in the Atlantic, reprinted here with permission.

Senate Judiciary Committee
List of members.

Additional questions for the nominee
Posted earlier on this site, here are questions by Morton Mintz to be asked of any attorney general nominee, not just Gonzales.

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