Interview with Doug Becker

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Terms:
 
 
 
People 
  •  Jerry Walker 
  •  Anita Ashton 
  •  Dr. James Grigson 
  •  Ernest Benjamin Smith 
  •  Randall Dale Adams  
 
Court Cases 
  •  Rummel v. Texas 
  •  Barefoot v. Estelle 
  •  Witherspoon v. Illinois 
  •  Adams v. Texas 
 
Table of Contents 
  •  Overview of relevant experiences and consent 
  •   Background and growing up 
  •  Working in the Attorney General's office 
  •  Going into private practice 
  •   The murder of Jerry Walker 
  •  The murderers' appeals come to Becker's desk 
  •  A class action suit against the Board of Pardons and Paroles 
  •  The parole status of Nieman and Hester 
  •  Stephen Walker's protest of Nieman's parole and Becker's work 
  •  The return of the death penalty and Estelle v. Smith 
  •  Rummel v. Texas and the three felony automatic life sentence 
  •  Barefoot v. Estelle and psychiatric testimony 
  •  Randall Dale Adams and The Thin Blue Line 
  •  Witherspoon v. Illinois 
  •  Adams v. Texas 
 
Transcript 
  •  CHAMMAH: [inaudible] 
  •  DOUGLAS BECKER: Let me mention to you the areas 
  •  RAYMOND: Actually we're on. Should we turn this off, or is this okay? 
  •  BECKER: I don't care. 
  •  RAYMOND: Okay 
  •  BECKER: Makes no difference to me. I have a few different connections to not just the death penalty but violence. 
  •  And the areas are really that when I was in law school I had a cousin who was a police officer who was murdered in the line of duty, and that's a story that leads kind of through the Court of Criminal Appeals, 
  •  where I was a clerk when the appeals of the murderers came through, and on to a lawsuit they had later, 
  •  a class action against the Board of Pardons and Paroles, on behalf of the inmates, in which one of my clients was the man who killed my cousin. That's kind of an odd thing.So that's one thing. And then second thing is I argued two cases when I was at the Attorney General's office. 
  •  Two death penalty cases in the United States Supreme Court. So there's those. 
  •  And then the last thing is, and that's kind of chronological, and then three months before I left the A.G.'s office, 
  •  Jim Mattox became Attorney General. 
  •  And I had conversations with Jim Mattox and Dave Richards about the death penalty, because I was at that time chief of the Law Enforcement Division, 
  •  which was in charge of all of the death penalty cases. And that I think was pretty interesting too. So do you want to go through all of those? 
  •  RAYMOND: Every bit of that sounds really important. 
  •  BECKER: Okay. It's very important, well it's important to me. 
  •  RAYMOND: Yes we'd like to hear it. 
  •  BECKER: All right, so that's the way I'll start it then. 
  •  RAYMOND: Well beautiful thank you, thank you. Let me just put on the tape, before we start into that substance, we've just talked about the study, the potential benefits to you, which are none, 
  •  the potential harm it would be if we accidently released any information before we were supposed to. 
  •  We take precautions not to do that, but that is the one thing I could imagine happening, if you know we got hit by a- a car accident and stuff flew out, on the way back to the office or something like that. 
  •  But it's not a lot of risk, no money is changing hands, and again we will transcribe it and we'll send you the DVD's before we ask you to donate anything to the project. 
  •  And then you can be in charge of the degree to which you want to share with the public. 
  •  BECKER: Sure. Virginia, do you work for the project full-time? 
  •  RAYMOND: I work there thirty hours. 
  •  BECKER: Is it a volunteer job? I'm just- 
  •  RAYMOND: For me it's paid. I also currently am a lecturer at the Center for Mexican-American Studies at U.T. Austin. 
  •  BECKER: I see. 
  •  RAYMOND: So we get paid, and Maurice is also an employee. 
  •  BECKER: Okay. 
  •  RAYMOND: We have a very small staff, but we're mostly volunteer run. 
  •  BECKER: I see. So you're on staff at U.T. as a lecturer. 
  •  RAYMOND: Very intermittently. 
  •  BECKER: Well I don't know why it even matters, but I'm a lawyer I always ask questions. 
  •  RAYMOND: And so then if we could ask first if you could just tell us a little bit about yourself, where you grew up. 
  •  BECKER: Okay, sure. Thumbnail sketch. I was born in Houston in 1947 and then lived in San Antonio, went to third, fourth and fifth grade in Bandera. 
  •  Had one room for each class. My third grade class had 53 or so kids in the class. 
  •  Then, my stepfather, my mother was divorced from my father, remarried. 
  •  My stepfather got a job working for the air force and air force exchange service which runs the PXs and so on, 
  •  and we get transferred and live three years in Germany, three years in Morocco, and then two years in New York, upstate New York. 
  •  From New York, I went to 11th and 12th grade there. 
  •  Undergraduate was at Harvard, four years, '65 to '69, then I went to Canada for three years, didn't want any more school at that point and spent a year as a laborer and two years as a public school teacher in Canada. 
  •  I taught junior high, grades seven and nine, and then decided I wanted to go to law school. 
  •  Actually wanted to be a lawyer from a young age. I had an uncle in San Antonio who was a lawyer and later a United States magistrate. 
  •  I admired him a lot and I sort of always wanted to be a lawyer so that's when I followed through on that, and qualified as a Texas resident, 
  •  so came to the University of Texas and went to law school from '72 to '75. 
  •  After one year I was a briefing attorney on the Texas Court of Criminal Appeals, Judge Wendell Odom I worked for, and then I went to the Texas Attorney General's Office under John Hill, 
  •  went to the enforcement division, did civil rights and habeas corpus cases. 
  •  I was appellate coordinator in our division there and then I was assistant chief, and then I was acting chief, starting when Jim Mattox came in, which would have been January 1, 1983. 
  •  Was there for three months. Mr. Mattox showed what a good judge of character and talent he is because he promoted me to chief, 
  •  actually after I tendered my resignation but nevertheless, I still got a plaque that says chief over here. 
  •  I think I was chief for a week of the division, and then left to be in private practice, April 1, 1983, with Rick Gray. 
  •  We've had this law firm ever since and the law firm has done a wide variety of work. 
  •  It's a litigation firm. We've done a lot of government-related cases. 
  •  When we left the attorney general's office, we had seven or eight contracts with state agencies to do cases and work for them, 
  •  which kind of got us started. Mine were with the Texas Department of Criminal Justice, at that time, it didn't exist, it was T.D.C., Texas Department of Corrections. 
  •  And we've done—and since then we have had government clients a lot, municipalities, counties, state of Texas on a number of occasions. 
  •  We sued all of the above as well, when there wasn't a conflict, we sued lots of municipalities, counties and the State of Texas. 
  •  We've also done a lot of commercial litigation, I do a lot of that, not really crazy about it, but I do it. And just so—I also do employment law and contract law, real estate, litigation, 
  •  a wide variety and that's all the professional stuff. 
  •  I'm married and I have six children, and two with my wife, three by a marriage 
  •  and one step-son, and my wife just went to night school at St. Ed's for about five years to get a masters degree in counseling, 
  •  and so for the last year and a half or so she is a therapist—she's been a therapist, and she's going to continue to do that. I guess is that enough personal? 
  •  RAYMOND: Yes, sure, fine. Thank you very much. So maybe you could talk about, you went to the Court of Criminal Appeals first. 
  •  Actually, we don't need to do this chronologically. You said there were three things you wanted to talk about. Why don't you tell us where to start. 
  •  BECKER: Sure, sure. Well, it is the Texas After Violence Project and you know a major event happened to me when I was in my first year of law school. 
  •  So that would have been 1972, and I have a cousin, in fact there's kind of a painting of him over there in that room that his mother gave to me. 
  •  Named Jerry Walker. My cousin Jerry and I were very close growing up, 
  •  even though I was overseas for some of that time, we were best buddies. 
  •  And he was, his whole life, all he ever wanted was to be a police officer, which I thought he was out of his mind, 
  •  but that's what he wanted to do, and he was, he became the Bexar County Sheriff's Deputy and one night, he was working late, middle of the night with a another deputy, 
  •  well I guess he was another deputy sheriff, whose name was Rodriguez. 
  •  And they saw a van that had some kind of problem with it. Its license plate light out or something, and they were suspicious, they decided to stop it. So they did and my cousin and Rodriguez walked up on one side of the van. Well what they had stopped, of course they didn't know, were some burglars, 
  •  just burglarized a house, and had a truck full of stolen stuff and when they walked up one each side, there were two or three people in there, but two for sure and there were two guys, 
  •  one was named Nieman and the other was named Hester and when they walked up they had guns and just shot them at point blank range. 
  •  Killed them. And of course they had radioed in the license plate before the contact, and within I think 15 minutes they'd all been apprehended and those people, those guys were about close to the same age. 
  •  You know, as my cousin was. So here you have this horrible thing, for what, you know? 
  •  For nothing.And I was—I found out about it, you know it happened in the middle of the night and 6:30, 7 in the morning I was sitting at the breakfast table having coffee and heard about it on the radio. 
  •  It was really, really, really bad. I was also very close to his mother, my aunt, of course, and she had two kids. 
  •  He was one, and you can imagine what that was like for her, at such a young age and all. 
  •  It's been hard ever since. 
  •  Life is really strange. 
  •  When I went to work on the Court of Criminal Appeals, walking into the office for the first day, and what do you think is the file that are on my desk? 
  •  Nieman and Hester's appeals. At that time, the death penalty was reenacted in Texas in 1974 and this happened in 1972, 
  •  so the death penalty was not a possible option. Both of them got life and there were their appeals. 
  •  So I saw that, you can imagine, you know, and of course they would have been randomly assigned judges, 
  •  the cases come in, they're randomly assigned, then there it is, I'm his briefing attorney. 
  •  So I promptly got up and waltzed into my judge's office and explained the situation. He said, "No problem. You just don't even touch those files." 
  •  We had a research assistant who was a—a briefing attorney is a one year job. 
  •  A research assistant has longer terms, as long as the judge wants them."So the research assistant and I, the judge, we'll do that case and we'll never talk about it with you, you won't have anything to do with it and it won't be a problem." 
  •  I said, "Okay." And that's what happened. 
  •  Their convictions were affirmed, and then the second thing that happened that was really odd was in 1987 an inmate named Daniel Johnson, 
  •  an old time writ writer down in TDC filed a lawsuit challenging various practices of the Texas Board of Pardons and Paroles. 
  •  I was in private practice, and got a call from—it must have been from the United States magistrate I think, Stephen Capelle, at that time, he now works for the county attorney's office. 
  •  And he said, "Doug, we have a prisoner case here that the district judge had thrown out. He appealed it on his own to the fifth circuit. 
  •  The Fifth Circuit says, ‘No, he's got a case that should be tried, if he can prove these things.' It's come back to us, we want to appoint a lawyer. 
  •  No money to pay for a lawyer in a civil appointment like this, but he said, actually I don't remember if he brought it up or I brought it up, but I said, "This could be a lot of work." 
  •  I have a duty to do things like that from time to time. 
  •  I already had a couple of criminal appointments. 
  •  I didn't like those at all and anyway, I don't remember who brought it up but the deal was if I did this case, I'd be excused from criminal appointments, 
  •  because this would be enough work. 
  •  So that was okay. That case turned into a class action. 
  •  It turned into a three-week trial. 
  •  And there were a number of issues in that case. 
  •  The one that was relevant to this: We were saying that the Board of Pardons and Paroles has a policy of not allowing inmates to know anything that's in their files. 
  •  That was admitted. The inmate has no right to anything and that as a result, there were frequently demonstrably false things in their file 
  •  that were actually causing denial of parole. In fact, even worse than that, they would grant parole, and sent out what was called an FI-19, Further Information, Code 19, meaning you've been paroled but we're sending out notice to trial officials, 
  •  the district attorney, the judge and sheriff of your county, and they have a right to protest, 
  •  and the protest would come back in and the parole would be yanked. 
  •  And often the protest would say things that were demonstrably false, 
  •  they could be refuted by reference to the trial transcript, 
  •  and the state's witnesses and so on and so forth. 
  •  And we said that if this was going to go on there should be some basic kind of notice, 
  •  some basic kind of hearing. It didn't have to be much, but an inmate—if a fact comes in that's causing the inmate to lose parole, 
  •  the inmate should have an opportunity to respond to that fact and the parole board to give it weight. 
  •  Just one example. Because we had—oh gosh—we interviewed, we my firm, interviewed hundreds of inmates at the Texas Department of Corrections, 
  •  and we put a lot of time in on this case and there was one actually from Travis County, 
  •  who had been paroled and the parole was yanked when a letter came in from Ronnie Earle. 
  •  If I'm not mistaken, it was Ronnie Earle himself, might have been one of his assistants, 
  •  I think it was Mr. Earle. And it said that this man had killed a police officer and when he killed him, 
  •  he had shot him in cold blood while the officer lay helpless and wounded at his feet. 
  •  That was the statement. 
  •  Reading that and actually we had the trial transcript. What actually happened, he did kill the police officer. 
  •  What actually happened was that there were some undercover plainclothes police officers in cars and they were drug dealers and pulled them over. 
  •  These guys testified they didn't know who these people were—whatever—whether they did or not, a gun battle ensues. 
  •  And with the police, like in the movies, with the police on one side of South Congress and these dope dealers on the other side of South Congress and they had a shoot out. 
  •  And one of his bullets kills a police officer on the other side, which is a horrible enough thing, but he didn't shoot him in cold blood while the officer lay helpless and wounded at his feet. 
  •  And that testimony about how he was killed was from the other police officers, not from him. 
  •  So that's just an example of what we said, okay? 
  •  If they don't want to parole him, we're not questioning that, but here is a situation where the parole board itself admitted that his parole was pulled on account of this letter that had demonstrably false facts in it. 
  •  That just didn't seem right. 
  •  And what we said was that led to arbitrary and capricious results, well in our case the reason Mr. Nieman actually testified in our case was he and Hester had virtually identical ages. 
  •  They were related themselves, if I recall, virtually identical backgrounds, virtually identical criminal records, not nothing too serious but criminal records. 
  •  Each had performed the identical act, you know. 
  •  There was no more in the facts of the crime, in their history, there was no reason to blame one over the other. 
  •  My cousin Jerry was the son of Vincent Walker, a very fine well-known San Antonio surgeon with money and with clout. 
  •  Rodriguez was Hispanic, lower income, a family with not any money or resources. 
  •  So when the one, Hester is the one who killed Rodriguez and when he came up for parole, 
  •  there were no protests, there was no notice. 
  •  It didn't get any publicity. Nobody did anything. Paroled after it was either 10 or 12 years. 
  •  Mr. Nieman ran into Dr. Walker. 
  •  Dr. Walker went to--Dr. Walker did everything that he could to stop that parole, which was his right. 
  •  He wrote letters, he went to the legislature. 
  •  And Mr. Nieman is still in prison, by the way. 
  •  So he's been in '72…38 years at this point. 
  •  The other guy was out in ten or twelve. 
  •  And this is a complete happenstance according to the social standing of the victims and there ought to be some kind of more consistency than that. 
  •  And actually when we were doing this trial, I got a lot of newspaper coverage, particularly out of the Houston Chronicle. 
  •  Clay Robinson over there, doing a lot of articles and they got into this deal and they actually interviewed both me and Adrian Young, 
  •  the assistant attorney general who was one of the opposing counsel. 
  •  Adrian had had a very dear friend when he was—I can't remember, he was in college or law school or shortly thereafter who was murdered by one of my clients. 
  •  I had my cousin murdered by one of my clients, and Clay did a pretty interesting article that interviewed Adrian and me. 
  •  What's it like when this personal stuff comes up in the middle of your trial? 
  •  Of course, I never talked to Nieman just like I had never handled his file. 
  •  We had another lawyer here who interviewed him. 
  •  I knew what the testimony was going to be, of course I didn't represent, I had nothing to do with that part of the case. 
  •  It was handled by someone else. But you know, I remember telling him, you know my cousin after Dr. Walker died, Jerry had a brother, my other cousin, his name is Stephen Walker. 
  •  Stephen picked up the, picked up the flag, so to speak, carried it through. Stephen did a lot of work to oppose Mr. Nieman's parole, 
  •  as was his right. And it actually had caused some problems in my family for a while, 
  •  temporarily, because here I am actually representing the man who killed Jerry. 
  •  Stephen could never understand how I could do such a thing. 
  •  And his mother, to whom I was very close, also had some questions about it. 
  •  And I said, "Well, you know what? Different people react different ways to things, 
  •  but this guy Nieman, I don't—it doesn't matter to me if he got the death penalty or he got life in prison. 
  •  It doesn't matter to me if he is paroled today or he dies in prison. 
  •  The only thing that matters to me is my cousin. 
  •  You know that isn't going to change. 
  •  That's not going to change, no matter what happens or could have happened or did happen to this guy." 
  •  And the grief I feel, I don't think would have been changed one bit, if he had been executed. 
  •  If he had done it two years later, he would have been. 
  •  And I know I was reading in the papers and all about the people, it seems to be routine, that when the guy, the murderer is executed, 
  •  it brings closure and relief, and diminishes the grief and I didn't go through that, so I don't know but I believe I can swear to you, 
  •  it wouldn't have changed anything about mine. 
  •  It would have done nothing. 
  •  And the same for parole. 
  •  If he'd been paroled after ten years or dies in prison, 
  •  it's not going to change anything. 
  •  I just, it's just one of those things I just can't understand how other people feel so differently about that. 
  •  And I know most people feel very differently about that. 
  •  I will never understand it. I just don't get it. 
  •  And it doesn't make any sense to me. 
  •  So I had that talk with my aunt and everything was okay. 
  •  And I remained very close to her, until she died just a few years ago. 
  •  With my cousin, I was on the outs for a long time. 
  •  But not anymore. 
  •  For the last ten years, it's been fine, and I said, "You know, Stephen, I'm not doing anything to get the man out. I'm not opposing you if you want to do that. 
  •  I'm having nothing to do with it, in fact, I'm not sure if I ever told him, I told my aunt, five-six-seven years after the trial, Nieman wrote me a letter. 
  •  It said, "I know you know who I am and I'm asking a great favor." And it goes through all his life since this happened. 
  •  It says, "Will you write a letter to the parole board saying it's okay with you if they parole me?" 
  •  I didn't do it. I didn't even respond to the letter. The letter sat on my desk for five years. 
  •  And I think I put it away just recently and just couldn't have—I don't know if that was right or wrong, but that's what I did. I did nothing. 
  •  It was just kind of, let the chips fall where they may. I'm not to the point of having any sympathy for Nieman. 
  •  I was at the point of feeling anger toward the Board of Pardons and Paroles about how he and his co-defendant were treated so differently. 
  •  And at trial we took, here was our position at trial: We don't know if Hester got out way too soon for what he did. We don't know if Nieman has been in way too long for what he did, but it's one of two. 
  •  Because there is no way on God's green earth to say, ten years is good for this guy, forty for this guy. 
  •  So that's my Nieman and Hester story and the story about my cousin. Okay. 
  •  RAYMOND: I was wondering. Do you want to talk a little bit about who Jerry was, what he was like? 
  •  BECKER: Oh, yeah, sure. We were soul mates. Steve, Jerry and I were steps, one year difference. 
  •  I was the oldest, Jerry one year under, Stephen one year under. 
  •  And of course my earliest childhood memories include them. 
  •  At that time when I was—let me see—San Antonio, I was born in 1947 so I was living in San Antonio when I was 5, 6, 7. 
  •  I went to first and second grade in San Antonio. So 5, 6 and 7 I guess. 
  •  Those three years, we were the Three Musketeers, inseparable. 
  •  But Jerry and I were the ones who were very close and he had a sense of humor like me, and he was goofy. 
  •  I'm sort of you could say kind of goofy, to tell you the truth, he was way goofier than me. And we just would spend all the time together that we could. 
  •  And it was just a natural—he would have been my best friend if he weren't my cousin, but being my cousin, it just made it more. 
  •  We did everything together and summer times, spent the night at each other's house, constantly, and were together almost all the time. 
  •  And then my family went overseas. We got to come back, I think it was every other summer. 
  •  Of course we always came to San Antonio and Jerry was here and it'd be the same thing over again, all three. 
  •  And I visited him actually when I came back to go to law school. 
  •  I guess I had seen him a couple of months, I don't remember, before he was killed. I was down in San Antonio visiting, he was married and he had one kid that stayed with him, he and his wife, drove him to work while he was in his uniform, 
  •  you know? I said, "God, Jerry, I can't believe you're a cop. Can't believe it."And he said, "Yeah, I know, well it's what I always wanted."And I said, "Well, I know it's always what you wanted. Most people grow out of stupid insane ideas that they have as kids. 
  •  But you never did." "Nope." He loved it. I don't know what it was. He just loved it. His parents—he had gone to Peacock Military. He'd been in the military academy in San Antonio for school some of the time and he just loved all that stuff, 
  •  which is very ironic because from a personality standpoint, that part of him was diametrically the opposite of me. 
  •  I mean, I wasn't, it wasn't like I was a hippie or anything, I was always going to school and college and all that stuff, but the idea of being in the military, or a military environment was abhorrent to me. He just thrived on it and yet we were just so close. Can't explain it. 
  •  That part of it, that's the way it was. And it was just a tremendous loss. 
  •  His mom, Aunt Lee, lived in San Antonio all the way until she died and she had the last ten, at least, I'd say the last ten years of her life, which ended, I'm not good on time, five years ago. 
  •  We just got to be really close and my wife Dianne, got to be very close to her, and we'd go down there regularly, frequently and stay with her. 
  •  We just loved her. And at that time, for various reasons, I had a whole lot of cases down in the Rio Grande Valley, so I had occasion to be driving through San Antonio. I would stop, and usually the way it worked out, especially when coming back, 
  •  it's a long drive, it's late, so I'd stay with her and come back the next morning. 
  •  And I had, she was just a delightful person and you know the pain, we talked about Jerry. 
  •  I'm sure every single time we were together, it would come up and we'd talk about it. 
  •  And the mother's pain never goes away. And so that's my end of the story. Do you have any other questions? 
  •  RAYMOND: No. Thank you for sharing. That's awfully sad. 
  •  BECKER: Yup, it was. Steve and I—I'm glad to say Steve and I have gotten to be good friends in later years. He lives in Houston and I see him occasionally and I think that's good. 
  •  And I'm very grateful to have been able to spend a good amount of time with his mother. She was the last—my mother had four sisters and a brother. 
  •  And Aunt Lee, Jerry's mom, was the last of them still alive. So kind of the end of the family. I don't have any brothers or sisters so I pretty much got a cousin, who's wonderful, and her husband in Atlanta, 
  •  and my wife and I are friendly with them and they've been here a few times, and we love them. I've known them—Terry's her name, Terry and her husband Mike. 
  •  I've known them since I was 15 years old, because that was before—they were dating at that time and I remember going on a picnic with them in Dallas. 
  •  They're great people. That's about all there is of my family. 
  •  RAYMOND: Your mother's family was from Texas? 
  •  BECKER: Yes, oh yes. Big time. Big time from Texas and proud of it and all that. Rah-rah we're great stuff. I never quite got it. But yeah, San Antonio and my grandmother, I did really always enjoy listening to my stories. 
  •  My grandmother, they were kids in the Depression and my grandmother raised them all without much help from my grandfather.In the Depression, in really a small house in San Antonio, they were poor, and those were—of course I knew all of my aunts. I was very close to my aunt, another aunt who lived in San Antonio all her life, 
  •  my Aunt Billie and she was married to the lawyer, later a magistrate. 
  •  Very close to them. Close to an aunt I had in Houston. Tommie, and Dallas, Francis, but I'm not as close as I can't get to Dallas as much and I had one brother— 
  •  or one uncle I didn't see as much but saw occasionally and of course, 
  •  I'm close to my grandmother, we lived in my grandmother's house for three years when we were in San Antonio and she was really sweet. 
  •  But yeah, they were all Texas, that's right, long-term. 
  •  Not sure how long. I know my grandmother gave me a rifle ball that she said a union soldier put it in my great grandfather's or grandfather's leg in the Civil War. So it went that far back. 
  •  And I didn't really ever plan to come back here after I was gone, you know? I liked the north way better than I liked Texas and I loved Canada. 
  •  It was a very close call for me whether to go to law school in Canada, which I could have done, and that would have been casting the dye, so to speak. I'd be there. I had very good friends who did just that. I came back here. I'm not exactly sure why, but that's what I did. 
  •  One of my friends I left behind and went to law school up there, 
  •  kind of funny but he became a criminal lawyer in a fairly small town in New Brunswick. 
  •  He sent me the newspaper, because the local newspaper, I guess it came out once a week or something, well, every trial that he had in that town for that entire week, DWI, minor criminal stuff, whatever it was, they would reprint the entire transcript of the trial, opening statements, evidence, closing argument to the jury, the whole thing. It would go on for pages. 
  •  This newspaper, it would be at least eight pages, and six of it would be his trials. 
  •  Just, "I don't know how you are down there, but I'm kind of a big shot around here." 
  •  Dave Lutz is his name and he's still a lawyer in rural New Brunswick. 
  •  Doing pretty well I guess. Anyway. I guess let's go on. 
  •  The stuff I had was, oh I guess chronologically Charlie Brooks. He's really kind of next. 
  •  When I went to the attorney general's office I didn't handle death penalty cases myself. In fact, there were so few of them at that time, that we had one person, Anita Ashton, we called her the Death Queen. 
  •  RAYMOND: Anita Ashton? 
  •  BECKER: Uh huh. Anita Ashton. You might still find Anita. I don't know. She handled all the death penalty cases. 
  •  But I was assistant chief, so I was, I suppose her superior. I would be the one reviewing the cases with her. I never went to any—I don't think I went to any of her hearings or trials or anything like that, although I was with her and helped her prepare for the Estelle v. Smith argument in the United States Supreme Court. 
  •  James Grigson, better known as Doctor Death and all that. 
  •  RAYMOND: Could you talk about that? 
  •  BECKER: Sure. It was, Anita gave the argument, like I say. I helped her prepare and you can have one other lawyer with you at counsel table, so I was that lawyer listening to the argument, and didn't think really we had that great of a chance to win. 
  •  We might win before today's Supreme Court, I don't know, but at that time, I knew Dr. Grigson because I was— 
  •  he would come up in cases that weren't only death penalty cases he did, he would also testify in other cases about the future, and you know, it was—this is the funny thing, 
  •  always, always the same. You know? 
  •  I mean, he was hired by the state. I guess I can't say 100% but it might be 100%, if it ain't, it's pretty close to it. He would always examine the inmate, prisoner and conclude whatever it was would be helpful to the state. 
  •  And of course, I heard him say, "Well, you know it's not true he's always testifying for the state." 
  •  He also had some cases for the defense where he would argue that whatever it was the defense wanted him to say. 
  •  And to me, in that, that doesn't change anything. 
  •  The important question is, how much of the time did you conclude as a scientist, that decided that the party who hire you was right. As a physician and that's the one that's a bit disturbing. 
  •  And of course, it's all so, so easy. 
  •  Ernest Benjamin Smith. The other thing that's interesting about that, that was an appeal that went through the Court of Criminal Appeals when I was clerking for Judge Odom. 
  •  And it brought up the question of the Texas—one of the first cases bringing up the Texas death penalty statute and how it works. 
  •  And Ernest Benjamin Smith, you may know a lot about that case. 
  •  RAYMOND: I actually don't but I was going to ask if you could sort of start at the beginning because even if I did, this is for— 
  •  BECKER: In talking here, I had actually forgotten that Ernest Benjamin Smith had gone through Judge Odom's chambers, or had gone through the Court of Criminal Appeals when I was there.It involved a murder during a robbery. And he had, I can't remember, one or two codefendants, that I don't recall. 
  •  He was—he was not the one that killed the victim. 
  •  If I remember it right, he was driving the get away car and if it wasn't that, no, he was inside. I'm pretty sure he wasn't even in the store. But under the felony murder doctrine, 
  •  if you actually participate in the crime, the results of the murder, you're guilty of the murder even though you didn't pull the trigger. Well, where this is going is the jury, both then or now in order to impose the death penalty, 
  •  you must find that the defendant will continue to commit future acts of violence. 
  •  Okay. He didn't commit an act of violence in this crime. It was the getaway car. 
  •  And his entire criminal record consisted of a conviction for possession of one marijuana cigarette. One joint. So the Court of Criminal Appeals is faced with, is there sufficient evidence to uphold the jury's finding that this man would continue to commit future acts of violence when he had yet to commit his first act of violence. 
  •  The Court of Criminal Appeals in their wisdom relied on Dr. Death—Dr. Grigson's testimony and said, "Well of course." 
  •  My judge dissented and quoted Alice—the part in Alice in Wonderland, which was just perfectly appropriate, where they bring someone before the Queen of Hearts 
  •  and she says "Off with his head!" And Alice, says, "But what has he done?"And the queen says "It doesn't matter. Off with his head!" 
  •  She says, "But maybe he hasn't committed a crime at all."And the queen says, "Well so much the better!"So how can we uphold the finding that says he will continue to do something that he's never done? 
  •  But that was the losing view on the court. And eventually then he files a writ of habeas corpus, that goes up through the federal system a few years later, 
  •  by which time I'm in the attorney general's office and working with Anita on his case, and I think the Supreme Court justices, of course the briefs were full of Dr. Grigson's history and all the things he testified to and what he did. 
  •  And technically you know the issue there was not the validity of his testimony. 
  •  The issue was whether or not Miranda warnings or some kind of warnings should have been given to the people he interviewed. 
  •  Because when they sent him in, the routine way to do it, they got some inmate in here named Smith, here he is, he's accused of this crime and we have a psychiatrist we'd like you to talk to. The inmates assumed he was there to help them.And he wasn't there to help them. He was there to kill them or to assist in carrying out, providing evidence to carry out their executions 
  •  and the Supreme Court in the actual holding of the case, said well, they have to administer warnings to the inmate about the real reason that this person in the medical profession, after all, is actually there. 
  •  So we lost that case. And then it's kind of slightly out of order, but the Barefoot v. Estelle case, which was I think actually the third or fourth--- 
  •  I had four cases in the Supreme Court. Two of them were death penalty, one of them was an Eighth Amendment cruel and unusual punishment case, Rummel v. Texas where the Texas prisoner was sentenced to automatic life sentence because he was an habitual offender convicted of three felonies, all nonviolent crimes—they were theft by check, theft of services, didn't pay somebody something and something similar. 
  •  He got life automatically because they were technically felonies, all at that point in time. 
  •  In fact, this was a while back, and I think to be a felony it had to be fifty dollars. 
  •  So if you wrote a fifty dollar hot check it's a felony, 45 is a misdemeanor and somebody fixed an air conditioner for him and he didn't pay him, and the third one that I don't recall was something similar. 
  •  And it went to the Supreme Court and we won that case, actually. 5-4. Didn't violate the Eighth Amendment.Then there was a parole case or rather a probation case out of El Paso that I argued, Vincent v. Texas, that we won below, and after arguments the Supreme Court dismissed the Petition for Writ of Certiorari as improvidently granted. 
  •  So I got to argue it, didn't have an actual opinion, we won, I count that as a win. And then there were the Adams case and the Barefoot v. Estelle case, 
  •  the two death penalty cases. Barefoot was later, it was 1983, the opinion came out. 
  •  Oh—I'm looking at it, argued it April 26th, 1983. 
  •  The issue there was whether or not psychiatric testimony can be allowed at all in death penalty cases. 
  •  There was a procedural issue as well, but that was a substantive issue. 
  •  Of course, the state was on much better ground here in this position. 
  •  We won that case because there was a lot of evidence in the record predicting future dangerousness is basically voodoo and that no one can do it and the psychiatrist can't do it 
  •  and the Supreme Court said, "Well, there's a lot of iffiness to doing that, but a psychiatrist we think would have something to say about it that would be more than just the average person on the street would be able to say, 
  •  or more knowledge in that area, and therefore we're not going to rule that he cannot have a scientist, like a psychiatrist, we're not going to bar them from testimony---testifying about that. 
  •  You can always impeach them, cross-examine them, etc. etc. and so on. 
  •  That was the Barefoot v. Estelle case. Adams v. Texas was actually before then, 
  •  1980 and Randall Dale Adams was of course the subject of a movie, The Thin Blue Line, which is really, really a terrific movie that didn't use actors. It was basically interviews of all the people involved, and I was annoyed, and am still annoyed about that movie because they had everyone connected with that case was in that movie, including the prosecutor at trial, the defense lawyer at trial and the appellate lawyers from both sides and Mel Bruder who argued the Adams case in the United States Supreme Court, except me. 
  •  Why'd they leave me out? And Adams, Randall Dale Adams, it was apparent, not then, but later, innocent of the crime at all. 
  •  I'm completely convinced. Now in 1980 when I was doing this case, guilt or innocence was not an issue in the case. 
  •  The only issue in the Supreme Court was whether or not the jury had been properly selected, of course, under the Witherspoon [Witherspoon v. Illinois] case and under Texas procedures. 
  •  When The Thin Blue Line came out and there was a lot of publicity about it and all that, I could never remember, 
  •  of course I read the entire trial transcript even though the only part of it that was really relevant was the jury selection portion. 
  •  I read the entire transcript and I can't ever remember thinking, "Gee, I think this guy is innocent" when I read it. 
  •  When I found out what more of the evidence was later on, it was pretty apparent. 
  •  But this point kind of comes up a little later in the next issue, but guilt or innocence was of no concern to me, given this case. 
  •  It was purely a matter of jury selection. 
  •  Of course, in Witherspoon, the Supreme Court had said that you can't disqualify jurors from being on a jury just because they say they have qualms about— 
  •  or reservations about imposing the death penalty. 
  •  That's not enough. It's sort of—if you just excuse, exclude everyone that had a qualm about the death penalty, what kind of jury are you going to get? 
  •  So even though they have qualms, you can only exclude them if they say clearly that under no set of circumstances could they ever vote to execute someone. Just couldn't do it. 
  •  Then in that instance, they would have inability to follow the law, and therefore could be excluded for that reason. Which, you know, you could even question that, 
  •  because it's a jury of your peers, society and it's a debatable point whether someone like that should be excluded, but in Witherspoon in saying that they could, but that's the only why they could, they're standing on really solid ground because the traditional rule in that regard is that if the juror cannot follow the law, they're excluded. 
  •  Even in say a car wreck case. Give me a car wreck case, and if you're doing voir dire, you could say in this case, we‘re asking for the damages, 
  •  medical damages and property damages and this person was drunk, and so we'll also be asking for punitive damages against the other driver. 
  •  Punitive damages are damages that are punishment for his conduct. 
  •  Is there anyone who has a problem with that? And you will sometimes get a juror who raises their hand.Well, I just can't—I can do everything for religious or whatever reasons, I just don't feel we should be punishing someone. 
  •  I think often what you hear, that's God's role. 
  •  And so, we'll leave the punishment to God, but I can give back all the damages, blah, blah blah. 
  •  Well that person will be excused and excluded from service because he can't follow the law. 
  •  So that ruling Witherspoon is really consistent with that principle of American jurisprudence. 
  •  But the problem in Adams v. Texas: Texas has this strange additional law on the books at that time that was an issue in the case. Because it provided that in order, even if a juror was otherwise qualified under Witherspoon, that the juror had to state under oath that knowing that if he made certain findings, 
  •  the death penalty was mandatory, that knowing that would not affect his deliberations on any issues of fact. 
  •  Not effect. A-F-F-E-C-T.Well, doesn't that sound awfully close to having qualms? 
  •  "Affect" is such a vague word. But when I defended the conviction in that case, I did two things.I said first of all, if you look at the entirety of their testimony of the jurors, there were some— 
  •  I don't remember—a dozen jurors or whatever number that there was that they decided were wrongfully excluded. 
  •  It would only take one to undo the conviction, that they really were disqualified under Witherspoon, if you read their whole testimony again, context, 
  •  and the other thing I argued was that when you say it would not affect his deliberations, or they issue a fact, that we're talking about okay, a juror has to make honest decisions about facts that they find and if the juror is so affected by the death penalty that they cannot return true and correct verdicts, 
  •  findings as far as the facts are concerned, then they shouldn't be qualified. The Supreme Court said "No. Basically what is Texas doing with this crazy statute? We've told you about Witherspoon."They recognized the cases in the Court of Criminal Appeals that repeatedly while refused--- 
  •  of course there'd been challenges to the statute in Texas and the Court of Criminal Appeals had repeatedly rejected all those. 
  •  Always said Witherspoon is alive and well in Texas. 
  •  That's the quote they put in their cases in the Supreme Court. The quote says, and the Supreme Court says, "Witherspoon is the law" 
  •  and I think to some extent they're saying, ‘We don't know what this other statute does or what it's about, 
  •  but if the juror can state that under some circumstances if the facts justified it, they could vote to impose the death penalty, then they're qualified. And a juror—whereas in Texas, the jury is saying, ‘Yes, I could under some circumstances.' 
  •  But knowing that the death penalty is involved, would certainly affect my deliberations, 
  •  I couldn't ignore that, it would—and there were various variations of that that the Supreme Court talked about. 
  •  It would impress me with the gravity of my finding. It would cause me to think even more carefully about my finding. 
  •  I would want to make sure for certain that the state had fulfilled its burden of proof, and yes it would affect me, I'm sure I'd be more careful about that than if I was trying a shoplifting case or something like that. And the Supreme Court said, "This is all over the line and into excluding jurors for things in Witherspoon we said were not okay."So we lost that one. That was 8-1. That was Justice Rehnquist dissenting. 
 
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Title:Interview with Doug Becker
Abstract:Douglas Becker is an attorney in Austin who worked in the Attorney General's office in the early 1980s and argued multiple cases before the Fifth Circuit Court of Appeals and the U.S. Supreme Court. Becker discusses the murder of his cousin, Jerry Walker, a Deputy Sheriff in Bexar County. He also describes his career in the Court of Criminal Appeals and the Attorney General's office, including arguing Barefoot v. Estelle and Adams v. Texas, his experiences in the Attorney General's Office during the first execution by lethal injection in the United States of Charlie Brooks, Jr. (Shareef Ahmad Abdul Rahim) in 1982 in Texas, and working with Attorney General Jim Mattox before going into private practice. In the second and third parts of his interview, he explains his role in the landmark prison reform case Ruiz v. Estelle, which he argued before the Fifth Circuit and for which he worked extensively with prison officials on issues such as the use of force, medical care, and overcrowding.
Sequence:1 of 4
Creators:
  • Douglas BeckerRole: Narrator
  • Texas After Violence ProjectRole: Collaborator
Contributors:
  • Virginia Marie RaymondRole: Interviewer
  • Maurice ChammahRole: Videographer
  • Nancy Semin-LingoRole: Transcriber
  • Maurice ChammahRole: Transcriber
  • Maurice ChammahRole: Proofreader
Publishers:Texas After Violence Project
University of Texas Libraries
Date Created:2010/11/16 - 2010/12/07
Languages:eng
Geographic Focus:North America--United States--Texas
Geographic Base:North America--United States--Texas--Austin
Type of Resource:Moving image
Genre:Interview
Identifier:tav00040_vid1
Rights:
    This electronic resource is made available by the University of Texas Libraries solely for the purposes of research, teaching and private study. All intellectual property rights are retained by the legal copyright holders. The University of Texas does not hold the copyright to the content of this file. Formal permission to reuse or republish this content must be obtained from the copyright holder.

Source Metadata

Analog/Digital Flag:physDigital
Carrier Number:1 of 4
Generation:original
Signal Format:NTSC

 

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