A Taste of Texas Justice?

By Scott Horton

One of the most chilling scenes in Alex Gibney's new documentary, “Taxi to the Dark Side” (which premiers at the Tribeca Film Festival in a fortnight) is a clip from George Bush delivering his 2003 State of the Union Address. “Some of them,” Bush said, referring to alleged terrorists “have now been captured and gotten a taste of American justice.” The hall rose in applause, Democrats and Republicans. And a little more than a year later, America got its first glimpse of how Bush understands “American justice.” It apparently has nothing to do with people being charged with crimes and convicted after a fair trial. It involves brutal punishments being meted out to people who have been captured based on a president's decision – delegated to unknown persons in the vast national security apparatus – that they are terrorists. A decision that, as it turns out, happens to be wrong roughly 75% of the time.

This is not what I understood to be “American justice,” and calling it that is an insult to the nation's foundational values. Perhaps we should call it “Texas justice.” I thought that after reading an article in the Chicago Tribune, commenting on yet another case in which a person who has spent half of his life in prison in connection with a rape conviction is now being exonerated due to conclusive DNA evidence – the thirteenth such case in Dallas County since 2001.

The case made me think of the arrest and conviction of 35 blacks in Tulia, Texas, in 1999 – the handiwork of a rogue racist policeman. It happened during George Bush's watch as governor, and Bush did nothing to intervene or rectify the situation. And it reminded me of Alberto Gonzales involvement, as counsel to George W. Bush, in reviewing death penalty cases. Gonzales prepared fifty-seven memoranda for Bush. A careful review of Gonzales' work reveals a shoddy, dismissive attitude towards a subject of utmost gravity. Gonzales routinely failed to apprise his client of the major issues raised in the case; indeed, it often seems pretty clear that his attitude was total indifference. Bush was out to put Texas within striking distance of China and Saudi Arabia for the number of prisoners it executed, and Fredo did his part. Alan Berlow did a masterful review of this in The Atlantic in July 2003.

And finally it made me think back to my own time in law school in Austin, Texas and to the words of my criminal procedure professor, George Dix. A very humane and wise man, Dix took some time to acquaint the outsiders in the class – like me – with the facts of life in Texas criminal justice, including the “plenty guilty rule” (a favorite of Texas judges, providing the notion that if a defendant was “plenty guilty,” it really didn't matter how many procedural rights had been trampled).

Every state has its issues with access to justice. Every state dispenses a different quality of justice to those who come from affluent and privileged backgrounds as compared with minorities and underprivileged. The difference seems to be that in most of the United States this is recognized as a problem, while in the Texas of George Bush and Alberto Gonzales it is seen as a natural state about which no apology is needed. It may well be that one of the crises of our day – that manifests itself in the introduction of torture, the rampant spread of secrecy, the doctrine of immunity for official misconduct, the coarse partisan politicization of judicial nominations, the politicization of the Department of Justice, the purging of the corps of U.S. attorneys to receive political operatives who confuse justice with a partisan political agenda – it may all just be the arrival of “Texas justice” in Washington. It may boil down to the idea that Texas simply has a different notion of justice from the rest of the country.

But then it strikes me that perhaps it is an insult to Texas to associate Bush and Gonzales with the state. After all, this is also the state we associate with Lyndon Johnson, Bill Moyers, Molly Ivins, Sissy Farenthold, Leon Jaworski, Tom Clark, Charles Alan Wright, Sanford Levinson and Lloyd Doggett. One wonders when at length Texas will awaken from the nightmare it unleashed on the nation, and find its way back to its populist roots.