USTIN - Of the 127 men and women who have been executed in Texas during his time in office, Governor George W. Bush makes one
categorical claim: None of them were innocent.
''There's no doubt in my mind that each person who has been executed in our state was guilty of the crime committed,'' Bush says.
The Texas governor's claim is supported by the prosecutors and law enforcement officials who worked on those cases, the juries that concluded that the defendants were guilty, and the failure of journalists and death penalty foes to find an incontestable case where an innocent person was executed.
Indeed, a Globe review of the 127 Texas death penalty cases found that there was powerful proof of guilt - uncontradicted scientific evidence, freely offered confessions, or an admission of regret just before the execution - in nine out of 10 cases.
Yet, in a handful of Texas cases, in which convicts never wavered from saying they were innocent, doubts remain. Doubts of varying degree. Doubts that did not convince a jury. Doubts that leave defense attorneys skeptical of Bush's claim.
''It is statistically inconceivable that no innocent people have been executed or will be executed,'' said torney Stephen Latimer. ''The Texas system is not infallible.''
Latimer represented David Stoker, who was executed in 1997 despite years of insisting that he had been framed for the murder of a convenience store clerk.
While there was evidence tying Stoker to the pistol used in the fatal holdup, no physical evidence placed him at the store or established that he owned the gun at the time the crime took place.
An informant turned the gun in to police and blamed Stoker for the murder. The informant, described by even Stoker's prosecutor as a ''lowlife scum drug dealer,'' received reward money and had charges against him dropped in a criminal case. ''Stoker maintained his innocence until the day he died,'' said Latimer.
Bush's presidential candidacy ensured that the Stoker case, and a handful of others like it, would become grist for the national news media.
CBS News and several major newspapers have dispatched reporters to Texas to investigate the governor's record. Bush's aides, in turn, have polled prosecutors in far-off corners of the state, to make sure the governor can stand by his claim of certainty.
''The governor's office did call me,'' said Hidalgo County District Attorney Rene Guerra, who prosecuted Danny Castillo, executed in 1998. ''I did verify that he was guilty.''
Castillo was convicted and sentenced to death for fatally slashing and stabbing a south Texas liquor store clerk during a 1983 robbery. The police found bloodied moneybags at the home of a relative where Castillo was staying, and a footprint left at the store matched a footprint discovered at the scene of another armed robbery for which Castillo was convicted.
But there was no physical evidence tying Castillo to the liquor store crime, and the footprints were from a common brand of athletic shoe. It was a difficult case for both sides.
''There was no really hard-core physical evidence,'' Guerra said. ''I lost friendships afterwards over this.''
''I don't think there is a silver bullet in this case,'' said attorney Paul Swacina, who handled Castillo's appeals. ''David's case was in the gray area.''
Mike Jones, deputy director of communications for the governor, reacting to the handful of ambiguous cases turned up during the Globe survey, said that ''the governor and his legal staff carefully review each case involving a convicted killer who is sentenced to death.
In each case, state and federal courts have already considered evidence and arguments presented by the defendants.''
''When the actual facts of these cases are reviewed fairly and objectively, instead of in a one-sided, sensational manner, it's clear each killer executed in Texas was guilty of the crime for which he was convicted,'' Jones said.
Bush declined an invitation to comment for this report, but when questioned about his record on the campaign trail, he has generally repeated what he said in his autobiography.
''I review every death penalty case thoroughly,'' Bush wrote. ''And early in my administration, I decided the standards by which I would decide whether to allow an execution to proceed. In every case, I would ask: Is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?''
At the time that Texas executed pickax murderer Karla Faye Tucker in 1998, Bush wrote, he was challenged at the dinner table by one of his teenage daughters, who declared her opposition to the death penalty.
''I told my daughter that sometimes in life you have to make decisions that are not easy, but they should always be based on principle,'' Bush wrote. ''In this case, the principle was to uphold the law of the land. I took an oath to do so.
''I believe decisions about the death penalty are primarily the responsibility of the judicial branch of government,'' Bush wrote. ''I don't believe my role is to replace the verdict of a jury with my own.''
In just one case has Bush decided that there were enough concerns about innocence to intervene: that of serial killer Henry Lee Lucas, whose confession to a Texas murder was shown to be a lie. Bush agreed with the recommendation of the Board of Pardons and Paroles and commuted the sentence to life in prison.
The confluence of events that has pushed Bush's record on capital punishment into the public eye is likely to keep it there. The governor will next confront an assertion of innocence in June, when death row inmate Gary Graham is scheduled to die. Over the last two decades, Graham's case has attracted the attention of sympathetic journalists, movie stars such as Danny Glover, and organized foes of capital punishment.
Though Graham admittedly took part in a violent felonious crime spree that included 22 crimes in the spring of 1981, including an armed robbery in which a victim was shot, he denies that he shot Bobby Lambert in a robbery outside a Houston supermarket. As in the case of Stoker, there is no physical evidence to tie him to the crime.
Graham was 17 at the time of the murder. He was convicted largely on the basis of eyewitness Bernadine Skillern's testimony, though other eyewitnesses could not corroborate the identification. A gun Graham possessed at the time of his arrest was tested by the prosecution and was ruled out as the murder weapon.
''Gary is the only client I have had in Texas who we thought is innocent, and I still believe he is,'' said Graham's attorney, Richard Burr, a veteran capital defense lawyer and death penalty foe.
Skillern, who saw the shooting take place and chased the assailant for a time in her car, ''is very adamant that she's right,'' Burr said. ''I'm convinced she is wrong, and there is no other evidence at all.''
Public support for capital punishment has slipped a notch in polls in recent months with the news that more than 80 inmates have been freed from death row, including seven from Texas, since the death penalty was reinstated in the 1970s. In many of these cases, and in dozens of non-capital convictions, DNA technology has exposed flaws in the US judicial system.
''We certainly think innocent people have been executed,'' said Barry Scheck, a nationally known DNA expert and a leader of the New York-based Innocence Project. Scheck's recent book on the issue helped persuade conservative columnist George F. Will and others to call for a reexamination of capital punishment.
After 12 inmates on death row in Illinois were freed, partly through the efforts of journalism students at Northwestern University, Governor George Ryan ordered a moratorium on capital punishment in his state. Senator Patrick Leahy, a Democrat from Vermont, and Representative William Delahunt, a Democrat from Quincy, are among those in Congress who have introduced legislation that would guarantee inmates a chance to have DNA testing; both are former prosecutors.
Eyewitness testimony, and the use of informants who get favorable treatment if they testify for the prosecution, are two forms of trial evidence that have come under particular fire in the cases where death row inmates have been found innocent. Both forms of evidence were used to convict Odell Barnes, who was executed in Texas in March for the murder of Helen Bass.
The physical evidence in the Barnes case - spots of Bass's blood found on a pair of overalls that he wore - were found to contain citric acid, which is used as a common preservative of blood. The presence of a preservative showed that the blood was accidentally or deliberately spilled on the overalls,
Barnes's lawyers argued, and not splattered during the murder.
Jailhouse informants played a crucial role in the case against David Spence, who was convicted in 1984 of the contract murders of three teenagers at a lake near Waco. Two men confessed to being Spence's accomplices, thus saving their own lives and putting Spence on death row. The prosecutors and investigators in the case were hailed by the media and public for their work.
But the case against Spence deteriorated in the years after his convictions, as appeals lawyer Raoul Schonemann unearthed disparities in the story told by the alleged accomplices.
Prompted by police, the two men had repeatedly revised their account of the crime to fit the prosecutor's theory. They were unable to name or accurately describe the car in which the bodies of the three teenagers were transported. Though all three victims had been repeatedly stabbed, there were no traces of blood in the suspect car.
The police work at the crime scene was dismal and the only physical evidence recovered was hair that did not belong to the victims or Spence.
''Their testimony was terribly inconsistent with each other, with major discrepancies, and rampant and rife with inconsistencies with prior statements and testimony they gave police,'' said Schonemann.
The two accomplices eventually recanted their confessions, as did other jailhouse informants who had testified against Spence. And Muneer Deeb, the man prosecutors said had ordered the contract murders, won a new trial and was acquitted.
Spence was considered to be a violent and vicious man, and the case for his innocence is by no means clear. But neither, at the end, was the case for his guilt, said Schonemann. Spence was executed in 1997.
No one has proved that an innocent person has been executed in the United States since the modern era of capital punishment began in 1977. What lingers in some 60 cases nationally, and a handful in Texas, is an uneasiness about the reliability of the judicial system and the prospect that a dreadful mistake could be made.
