Inmates being released from prison, greeting families | Music | 00:00 |
| SIMKIN: They've done their time and they're going home. | 00:10 |
| EX-PRISONER: We're free! | 00:13 |
| SIMKIN: Each weekday, Huntsville prison releases scores of inmates into the arms of loved ones. | 00:20 |
| Music | 00:25 |
| SIMKIN: Those without families to meet them walk to the bus depot, their belongings in a bag and a one-way ticket in their pocket. | 00:38 |
| In Texas, there more than 700,000 people in prison, on parole, or on probation. That's five percent of the adult population. Nearly all of them are poor. | 00:49 |
Vox Pop | MAN: Don't ever come to Texas or the United States and commit no crime. And I'm serious. | 00:59 |
| SIMKIN: Texas doesn't have a legal aid or public defender system. If you can't afford a lawyer - and an overwhelming number of defendants can't - the judge appoints one, sometimes with disastrous consequences. | 01:08 |
Vox Pop | MAN: They have a little sign that they have entering Texas that says ‘Don't mess with Texas'. They mean it. Don't mess with Texas. | 01:20 |
| MAN: Plain and simple - you come to Texas on vacation, you leave on probation and you will come back on violation. They're serious. They don't play around. | 01:26 |
Greyhound bus | SIMKIN: They head south, free at last. Many of the prisoners left behind in the Texas jail system will never be released - including the 400 men and women on death row. | 01:37 |
Simkin visits McFarland | George McFarland is one of them. He asked to shake my hand - the death row way. | 01:48 |
| SIMKIN: You've got a big hand. | 01:55 |
| MCFARLAND: The guards tell me that all the time when they put the handcuffs on me [laughs]. | 01:57 |
| SIMKIN: McFarland is waiting to die for a crime he says he didn't commit. | 02:03 |
Super: George McFarland Convicted murderer | MCFARLAND: Yes I am worried. I do get nervous every time my case moves to another new level, because I was turned down from the level that we was just on, I get more scared because I'm like -- if they didn't see the truth here, and now they have to go to this level, when are they going to see the truth? | 02:06 |
Police officers at crime scene | RADIO OPERATOR: A black male in a red shirt. | 02:29 |
Police photos. | SIMKIN: McFarland's journey to death row began sixteen years ago. These are the police photos of the crime scene, taken soon after a shopkeeper was ambushed, robbed and shot in the chest and back. | 02:34 |
Line up | POLICE OFFICER: Make a quarter turn and face the front. | 02:45 |
| SIMKIN: McFarland was arrested. The police didn't have a confession or any forensic evidence linking him to the murder. What they did have was a witness who said she didn't get a good look at the killer, but picked McFarland out of this line-up. | 02:49 |
| POLICE OFFICER: Repeat the words, grab the bag, grab the bag. MCFARLAND: Grab the bag, grab the bag. | 03:02 |
| SIMKIN: With his life on the line George McFarland got two attorneys. | 03:07 |
Courtroom | One had never tried a capital case and the lead lawyer, John Benn, was 72 years-old. Benn spent four hours preparing before the trial | 03:10 |
Photo. Benn sleeping | and during it, he cross-examined just three of the state's 14 witnesses. At key points in a capital case, the defence rested - literally. MCFARLAND: John Benn slept so hard he was snoring. John Benn slept | 03:18 |
McFarland | so hard that he would snore and almost fall off the chair -- and this is the God's truth. | 03:31 |
Photo. Benn sleeping | SIMKIN: Now did this happen just once, or was it something that happened repeatedly or continuously? | 03:36 |
McFarland | MCFARLAND: John Benn slept so much that I couldn't even give you an accurate account of how many times we tried to wake him up. | 03:42 |
Courtroom | SIMKIN: Two days after the trial started, the jury found George McFarland guilty. He received a death sentence MCFARLAND: I wanted to just reach across there and just scream and just shake him and scream and tell him "Look what you doing. | 03:49 |
McFarland. Convicted murderer | You promised me that the truth would come out, you promised me that I wouldn't go to prison for the rest of my life, you promised me that you wasn't going to let these people kill me for something I didn't do, and you come in here and went to sleep and you did nothing." | 04:03 |
Courtroom | SIMKIN: So how did the courts react? Well the trial judge declared that even though the constitution says everyone has the right to a lawyer, it doesn't say the lawyer has to be awake. A higher court upheld the verdict and some of its judges said the sleeping lawyer could have been a tactic to win sympathy from the jury. | 04:17 |
Execution cell | George McFarland got no sympathy. He sits on death row, wondering what would have happened if he'd been able to afford a proper lawyer. | 04:35 |
Brass band | Band Music | 04:45 |
Band playing on New Orleans street | SIMKIN: In neighbouring Louisiana, a great city is slowly coming back to life. | 04:50 |
| New Orleans seems upbeat enough, but it's a crime capital. There have been more than 80 murders so far this year. Unlike Texas Louisiana operates a public defender system for people who can't afford a lawyer. You won't believe how it's funded. | 04:56 |
Man leaves courthouse in manacles | Put it this way -- if you're poor and accused of a serious crime, a parking fine could be your only ticket to freedom. BOURKE: However many parking tickets or speeding tickets are written, | 05:13 |
Bourke | that's how much money the public defender office in a particular area gets. | 05:23 |
Parking officer issuing ticket | SIMKIN: So if your life is on the line, you're facing the death penalty, the quality of your defence relates to the number of parking fines and speeding tickets in the area you're being tried in? | 05:26 |
Bourke. Super: Richard Bourke Capital Assistance Center | BOURKE: Absolutely. There have been different periods - the most notable of which was after Katrina - where there's no revenue or reduced revenue from speeding and parking fines and suddenly the public defender office is bankrupt. | 05:36 |
Parking officer issuing ticket | And it becomes so ridiculous, that one of the public defender offices invested in a speed gun | 05:50 |
Bourke | for the local police force to increase revenue so that they could get some more money back. | 05:56 |
Bourke and Simkin in file storage area | Bourke: So behind us that is a guy who was sentenced to death in Mississippi... SIMKIN: Richard Bourke is an Australian lawyer working in New Orleans. He fights to get prisoners off death row in what he calls the death belt - Louisiana, Mississippi, Texas. Bourke: Another Mississippi case up there - she was sentenced to death. We got that reversed and we got her exonerated on the retrial. | 06:02 |
| SIMKIN: Each of these boxes represents one of the Capital Assistance Center's cases - a collection of tragic stories. | 06:23 |
Intern on bicycle riding to court | Music | 06:31 |
| SIMKIN: The parking fine-funding means poor prisoners facing the death penalty get overworked, underpaid and under-resourced lawyers. This how one of the Center's interns gets crucial documents to the court. | 06:37 |
| Public defenders often can't afford forensic experts or investigators, unlike the prosecution that has a big budget, crime labs and a police force at its disposal. | 06:57 |
Bourke | BOURKE: There aren't rich people on death row. The death penalty in this country is something reserved for the poor. The old joke is that it's called capital punishment because those without the capital get the punishment. | 07:09 |
| SIMKIN: These people are accused of -- or have committed -- very serious, heinous crimes. Why should the state spend money, taxpayers' money, giving them a decent lawyer, do they deserve that? | 07:19 |
Bourke. Super: Richard Bourke Capital Assistance Center | BOURKE: I think that most people, even the most pro-death penalty, would agree that there needs to be a fair trial. | 07:31 |
Young male prisoner | If you don't have any money, you're at the mercy of the state. They are obliged to appoint you a lawyer, but a lawyer is just someone with a bar card and a pulse. We've had, in the last 8 years in Louisiana, twice as many people exonerated from | 07:38 |
Bourke | death row as we've had executed. So don't tell me they're getting good lawyers at their trials to start with and don't tell me we shouldn't be investing money in making sure that the system is fair and works properly. | 07:51 |
Bourke and interns in meeting | INTERN: Well, he was very excited about having a Spring court date... SIMKIN: The Center is working on twenty death penalty cases at the moment and helping with thirty more. | 08:02 |
| BOURKE: They've got him chained lying on the bed in a jail cell in the hospital with faeces and blood smeared on the wall, the whole bit -- it's like you know something out of the 17th century. | 08:10 |
| SIMKIN: Because its resources are so limited, the centre relies on volunteer law students from as far away as Australia. | 08:19 |
Bourke. Super: Richard Bourke Capital Assistance Center | BOURKE: It's the wealthiest country in the world but when you, particularly down here in the south, look at the quality of the criminal justice system it looks like a third world country. | 08:27 |
Parade | SIMKIN: Particularly in the south. The region accounts for more than 80% of America's executions. Some people think it's a frontier mentality, a throwback to the Wild West. Others blame trigger-happy District Attorneys. Or it could be that the bible belt wants ‘an eye for an eye'. Certainly the quality of defence lawyers is a key factor. | 08:40 |
| SIMKIN: In Alabama, a woman was sentenced to death after her court-appointed lawyer was so drunk he was found to be in contempt of court. He spent the night in prison and the next morning he and his client emerged from their cells and the trial resumed. | 09:04 |
Prison graveyard | Music | 09:17 |
| SIMKIN: But Texas is in a league of its own. It's the United States' capital punishment capital. | 09:21 |
| Texas has executed nearly 400 people since 1982; fourteen this year alone. The unclaimed bodies are buried near the prison. Many of the graves are marked by a number, not a name. | 09:28 |
Simkin visits Burdine | Calvin Burdine came within days of joining them. He's been behind bars for a quarter of a century. | 09:44 |
Evidence in bags | Music | 09:50 |
| SIMKIN: The evidence that condemned him is still stored in the court complex, a repository of death. | 09:56 |
Crime scene photos | Burdine was convicted of stabbing his male lover. He couldn't afford his own lawyer so the court appointed Joe Cannon. BURDINE: Several times I could hear | 10:02 |
Simkin visits Burdine | the jury snickering and they would look over and Mr Cannon would be sitting with his chin down on his chest and he would just be asleep, he'd be snoring. It was unreal. | 10:12 |
Newton with case files | SIMKIN: After Burdine was sentenced to death, a real lawyer entered the picture. Brent Newton's legal center agreed to handle an appeal for free. He couldn't believe what he found in the trial transcripts. | 10:22 |
Mugshot Burdine | The prosecutor had mocked Burdine's homosexuality while asking for the death penalty. NEWTON: ‘Ladies and gentlemen of the jury', the prosecutor said in words to this effect, ‘if you send | 10:33 |
Newton | him to prison it's going to be a good thing for him because we all know what homosexuals do in prison'. | 10:42 |
Mugshot Burdine | SIMKIN: And did the defence lawyer object to that? NEWTON: No objection. | 10:49 |
Newton. Super: Brent Newton Lawyer | It also could be that Joe Frank Cannon was a homophobe. He both on the record and off the record used various homophobic terms. He once referred to Calvin as a ‘tush hog', a ‘tush hog'. He used the word faggot to refer to homosexuals. And this is a man representing a homosexual. | 10:52 |
Warden unlocks cell | Music | 11:10 |
Execution room | SIMKIN: As Brent Newton filed his claims, Calvin Burdine survived six execution dates. Each time, a court ordered a last minute stay. On one occasion, the jailers said they were going to kill him anyway. | 11:17 |
| NEWTON: And they took Calvin all the way over the place where they execute them. They went through all the horrific procedures a person would go through - offering him a diaper, and telling him this is what's | 11:31 |
Newton | going to happen to you, and putting him in the little cell next to where they execute - all that happened when they knew there'd been a stay of execution. | 11:41 |
Burdine. Super: Calvin Burdine Convicted Murderer | BURDINE: I kept asking, you know, to call my lawyer because my lawyer was not there. I wasn't scheduled to be there. I already had the stay of execution. I had the paperwork. I was slapping the warden with the paperwork. And they told me that I couldn't make no phone calls and they said "Until we find our paperwork, the execution will go on as scheduled. | 11:49 |
Newton playing with children | SIMKIN: These days, Brent Newton can relax with his children but when he was working on the Burdine case it was anything but a game. After years of litigation, he saved his client's life. The DA offered Burdine a choice -- another capital trial or life in prison. | 12:08 |
Burdine | BURDINE : "So we've accepted a life sentence for you, will you accept that deal?" I said "Where do I sign?" You know of course, I didn't want to go through that again. In Harris County you don't gamble with your life. They're going to find you guilty, you know. | 12:25 |
Harris County Criminal Justice Center | SIMKIN: The man who offered Calvin Burdine the deal is paid to make life and death decisions. Chuck Rosenthal Junior is the Harris County district attorney. | 12:41 |
Simkin with Rosenthal in office | He's sent dozens of people to death row and makes no apologies for it. ROSENTHAL: I thought about putting up | 12:48 |
Rosenthal | billboards on the way into Harris County to say, look if you're coming here to do a capital murder, you might very well die for it here. | 12:54 |
Burdine | SIMKIN: Calvin Burdine nearly did. The DA still thinks Burdine is guilty, doubts the lawyer slept and says it wouldn't have made much difference if he did. | 13:02 |
Rosenthal. Super: | ROSENTHAL: If you had lawyers who slept during trials they certainly wouldn't do the best job for their clients. | 13:11 |
Courtroom | But on the other hand, let's say that a lawyer was told by his wife that morning that she was leaving him. Or that he was coming down with the flu. Or other things that might also | 13:21 |
Rosenthal | reflect on his ability to concentrate on the trial and do his best. | 13:34 |
Simkin walks with Rosenthal to courtroom | SIMKIN: Chuck Rosenthal believes defendants do get adequate representation and he says Texas is raising its standards. Given Harris County's bloodthirsty reputation it was no surprise two of the courts we visited were hearing capital cases. | 13:38 |
Judge Hill | Like the DA, Belinda Hill was elected. JUDGE: Yes we're heading a death penalty case this morning. We're going to... | 13:51 |
Rosenthal and Judge Hill. Super: Belinda Hill | SIMKIN: There's evidence elected judges tend to appoint lawyers who are political supporters - hardly a recipe for an independent defence. JUDGE: I think that the lawyers who are on the list, particularly in these types of cases, are highly competent lawyers. | 13:57 |
Ray Hill empties box of mail | SIMKIN: Those who have been on the other side of the bench have a different perspective. Ray Hill runs a radio show for prisoners and their families. It's been going for more than 20 years, and receives hundreds of letters a week containing donations and solicitations. HILL: The court will appoint you | 14:13 |
Ray Hill. Super: Ray Hill | an attorney and the person they appoint you is the one who has made the largest political contributions to the judge on the bench, because it's entirely his or her decision who gets to be a court-appointed attorney and so then you've got a person who's beholden to the court. | 14:31 |
Ray on air in studio | HILL on radio: It's time... to rattle them bars because we're going to do a prison show for you! SIMKIN: Most of the station technicians are ex-cons -- armed robbers, car thieves, sex offenders. Ray Hill spent four years in jail himself. HILL: I used to be a burglar. | 14:48 |
Ray Hill | I didn't like to break into people's houses and steal their cutlery. There's not much money in cutlery. I broke into their warehouses and stole their capital assets. | 15:04 |
Ray on air in studio | HILL on radio: I hear a new wind blowing in Dallas County... SIMKIN: After being caught and convicted, Ray Hill received | 15:13 |
| 20 consecutive 8 year sentences - 160 years in jail. He taught himself law in prison and did what his own lawyer couldn't - got the sentenced slashed. | 15:20 |
Ray Hill. Super: Ray Hill | HILL: In American criminal justice, money in fact does not talk, she screams. | 15:33 |
Alexis visits studio | SIMKIN: Most of Texas prisoners aren't given access to a phone or email. The radio show is the main way those on the inside hear from their families on the outside. | 15:44 |
| Alexis: Hi daddy it's me, Alexis. | 15:51 |
| SIMKIN: Each week, wives and children call in or come in to pass on messages to a loved one. This nine year-old's been visiting for seven years. She sings to her father -- reportedly reducing prisoners to tears. | 15:54 |
Alexis sings on air | Alexis sings: You are my sunshine, my only sunshine...You make me happy when skies are grey, You'll never know dear how much I love you , So please don't take my sunshine away. | 16:06 |
Execution cell | Music | 16:21 |
| SIMKIN: Many states are trying to improve legal training and standards, but that's little comfort to those already on death row. | 16:24 |
Graveyard | The prisoners were convicted of terrible crimes but if they didn't get a fair trial then some could be innocent -- victims of a system where you get the verdict you can afford. The scales of justice are tipped towards death. | 16:32 |
| Music | 16:48 |
Credits: | Reporter: Mark Simkin Camera: Dan Sweetapple Editor: Woody Landay Research : Janet E. Silver Production Company: ABC Australia - Foreign Correspondent |
17:00 |