Mr. Douglas M. Becker

Interview with Mr. Douglas Becker

Date: November 16th and December 7th, 2010

Place: Austin, Texas

Equipment: Sony mini-HD DV camcorder

Recorded on: Sony mini-DV premium cassette tapes

Interviewer: Virginia Raymond

Videographer: Maurice Chammah

Transcription: Nancy Semin-Lingo, Maurice Chammah

Reviewed & edited: Maurice Chammah
(Mr. Becker’s edits made 3/29/11)

INTERVIEW WITH MR. DOUGLAS BECKER

CHAMMAH: [inaudible]

MR. DOUGLAS BECKER: Let me mention to you the areas

RAYMOND: Actually we’re on. Should we turn this off, or is this okay?

MR. DOUGLAS BECKER: I don’t care.

RAYMOND: Okay

MR. DOUGLAS BECKER: 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.

MR. DOUGLAS BECKER: Okay. It’s very important, well it’s important to me.

RAYMOND: Yes we’d like to hear it.

MR. DOUGLAS 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 it. 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 at all a 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.

MR. DOUGLAS BECKER: Sure. Virginia, do you work for the project full-time?

RAYMOND: I work there thirty hours.

MR. DOUGLAS 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.

MR. DOUGLAS BECKER: I see.

RAYMOND: So we get paid, and Maurice is also an employee.

MR. DOUGLAS BECKER: Okay.

RAYMOND: We have a very small staff, but we’re mostly volunteer run.

MR. DOUGLAS BECKER: I see. So you’re on staff at U.T. as a lecturer.

RAYMOND: Very intermittently.

MR. DOUGLAS 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.

MR. DOUGLAS 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.

MR. DOUGLAS 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 might, 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 ach 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 be 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 there 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, and 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 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 drug 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 Robison 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 it 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 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 that, 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?

MR. DOUGLAS 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, but 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.

MR. DOUGLAS 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?

MR. DOUGLAS 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-her, 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 grand father’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?

MR. DOUGLAS 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 in the United States Supreme Court. James Grigson, better known as Doctor Death and all that.

RAYMOND: Could you talk about that?

MR. DOUGLAS 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—

MR. DOUGLAS 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. 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. And his entire criminal record consisted of a conviction for possession of one marijuana cigarette.

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, 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 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, [inaudible] 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 improperly 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. During 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. 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.

[Tape 1 Ends]
[Tape 2 Begins]

MR. DOUGLAS BECKER: So it was pretty clear-cut, to the core again. I was all caught up in advocacy for my clients, and so on, but I don’t think I could disagree too strongly. It was anticipated. It’s kind of funny, the Barefoot v. Estelle case, that conviction was out of Belton, so that’s Bell County, and the prosecutor there was a man named Cappy Eads. Cappy was a really I think very fine prosecutor, skillful, had great integrity, was the long-term D.A. there and absolutely believed in the justice of the case and so on, and he liked me and of course was ecstatic when we won the case for a lot of reasons. And that was very shortly after that, I was in private practice. Of course we were doing just about anything we could to survive. And I got a call one day from Cappy, and he said, “Doug, good to talk to you again. Listen, there’s a problem here. We’ve got some lawyer here in our county claiming he’s with your law firm and he can’t possibly be with your law firm.”

I said, “Why not?”

“Because he’s defending a porno x-rated book store, and I know that you would never allow anything like that. I mean, I know you Doug, you’re not that kind of person.”

“Well Cappy, guess what? I am that kind of a person.”

He said, Cappy was I think, I don’t know maybe I’m overstating it, but I remember that conversation very vividly because Cappy and I spent so much time together, in the Barefoot case and getting ready for the hearings, taking it to the Supreme Court, all this stuff, and I think he was seriously disillusioned.

And I’ve always, always personally been against the death penalty. Always opposed to it. If I were a legislator I would vote to repeal it in Texas, just never for various reasons, I guess normal ones, doubts about innocence for one thing, and I think also I just think it’s barbaric and not—shouldn’t be felt to comport with the norms of civilized society. I guess the main reason though, that it’s always offended me was the disparity in its imposition. You’re white and got money, you’re black and got no money. The outcomes statistically are—not just the outcomes, even as to whether the death penalty is charged, and then it’s still a racial problem, but it’s a more complicated or subtle racial problem because you look at who gets charged and you see that if you kill a white person regardless of your race, you’re a lot more apt to get charged with the death penalty by prosecutors who have that discretion than if you kill a black person, regardless of your race.

And the whole thing, when you get into the arbitrariness of it, the fairness of it, that’s really what does it for me because if you have a penalty that is that ultimate, it’s got to be done in a way that at least internally does justice, and when the statistics show the disparities are as gross as they are, it’s just completely offensive to me, and I’m one of these far out people that’s embarrassed to live in a state that’s—I don’t know, are we still way ahead of Florida in executions, or are we right behind them? I don’t remember, but whatever it is, it’s not good, in my opinion.

And the reason I mention all that is that especially I’m in private practice now from ’83, 27 years now, I guess, and I’ve represented lots of scoundrels. Quite a few of them. I don’t ever try to pretend that they’re purer than the new driven snow. I know what they are but they have their right to a day in court. You have ethical responsibilities as a lawyer not to knowingly put on perjured testimony, to reveal adverse authorities to the court, not to hide unfavorable facts or unfavorable documents. So there’s rules of the game, and so within the rules of the game, every person is entitled to an attorney, and that’s the way I looked at it.

Sometimes I believed in the justness of my cause because I just couldn’t help it, and that’s certainly true of the Daniel Johnson case, the class action against the parole board that I spoke of. Sometimes, other times, and the majority of the cases I can see it both ways as far as who deserves to win from some kind of moral or ethical standpoint, really that’s not my concern. It’s the legislature’s concern. They’re the ones and the courts who decide who can sue for what and what the penalties are for this and for that, and my job is to present the case I can for my client within the bounds of the law, within the ethical restrictions that I take very seriously and do everything to work within, and it doesn’t bother my conscience in the slightest to represent not a good guy.

A lot of people are different. Cappy Eads was different. And Walter Long who is a good friend of mine. I’ve known Walter for a million years. I don’t think Walter is accepting an appointment as special prosecutor in a death penalty case. He ain’t gonna do it. Not gonna happen.

I would do it. I mean, I‘m not qualified to do it any more, if I ever was, but I would do it. And my rationalization has always been look, this person is going to have an attorney. It’s better for the system and better for justice if he has an ethical attorney who’s going to play by the rules, because if a scoundrel gets a scoundrel for an attorney that’s not good. So better me than someone else. And like I said, I call that a rationalization because I’m not sure if it is or not, but that’s how I look at it. I guess a lot of that came to a head with Charlie Brooks.

Of course, he was the first person who was executed after the new death penalty law came into effect in 1974. And once again, I was not the attorney in charge of the case. I was I guess assistant chief at that time. I don’t think I was acting chief yet of the division, and the lawyer was a really fine attorney, brilliant woman named Leslie Benitez who now is with Clark Thomas. And she was working that case and I can’t remember what the issues were in the case, but I remember it got down to what it always does, maybe less so now, I’m not really up with it, but back in those days and for years, the 24 hours before the execution was a flurry of activity. There were briefs here and Fifth Circuit briefs there and the Court of Criminal Appeals and of course the inmate’s lawyers are in there when they can just to get a stay or just to get a foot in the door to get it put off and there’s telephone hearings with appellate courts and all kinds of stuff that you hardly ever see any other time, and that’s the way it was that night. And I was at the attorney general’s office. You know, there must have been a secretary there of some sort, or a legal assistant, I don’t remember that, I just remember Leslie and me doing all this stuff and the word finally comes down, the last appeal has been denied and a few minutes later Brooks had been executed.

And there was—there was not any celebration in that office. You win a big case and a lawyer feels really good. We’ve got this competitive urge that takes over in these things, but after that, we probably did feel some of that when the Supreme Court said okay let’s deny the last appeal. But even then, the gravity of what that meant would have certainly tempered how we otherwise would have felt, and then when it came to be we found out he was executed, which meant, now it’s time to move on. And that was, that put this stuff to the test about why I’m representing my client and have confidence in the courts, they’re going to reach the right result. He’s got good lawyers, they’re going to put the best arguments forward and the law is going to be followed. But that was a very mixed feeling and I think Leslie had them too, and once again, I sort of don’t understand anyone who wouldn’t have mixed feelings at that time about the execution of a human being. And that was, my memories of that night are pretty strong, still.

And I did consider at that point, well you know, you’re against the death penalty here, personally, strongly against it, and here you are working to impose it. You have kind of a limited role, but that really has got nothing to do with it. You’re doing everything you can, coming up with all the ideas you can, coming up with suggestions to counter arguments against the carrying out of the death penalty this night in this office at this time, and it is kind of like, the foundation that you build for yourself so that when you run around on the floor doing what you do, is going to hold you up, was shaken on that occasion.

But I continued to supervise death penalty cases after that.

January first, Jim Mattox came in as attorney general. I had worked—I had been hired by John Hill thanks to my friend Bert Pluymen, and then was there all four years through Mark White. In fact, Rick Gray was his executive assistant, head of litigation from Mark White. So, he was in charge of all the litigation in the office, and it’s in that capacity that I got to know Rick Gray, because when, January 1st, of 1983, Mark White became governor and my boss was a man named Gilbert Pena.

Gilbert had been at the attorney general’s office a long time. I loved Gilbert. He was like a father to me. We got along great and I loved being assistant to him being chief. I called him El Primero. He called me El Segundo. We had a great relationship. I’m kind of digressing, but Gilbert was just so, such a wonderful guy and had such good judgment. We had a routine. When I go away to trial and come back from somewhere, I’d always come back and report to his office and say, “Good news, Mr. Pena. Justice has prevailed.” And Gilbert would say every time, “Oh, my god. File notice of appeal immediately.”

And that was the routine, and Gilbert had, Gilbert was not a doctrinaire person and he had a very balanced and realistic view of our clients, which we really were, our clients when you’re doing habeas corpus cases, our clients really were the district attorneys who tried the cases and sometimes to some extent, the Court of Criminal Appeals maybe because they’re the ones upholding these convictions. And there are a lot of district attorneys out there and some of them from time to time, the things that work are questionable. And Gilbert understood that, and I understood that. And there are clients on the civil rights side, which that’s what we did, habeas corpus and civil rights. Our clients were of the law-enforcement related entities, Department of Public Safety, the Board of Private Security Investigators, Board of Polygraph Examiners, and of course most prominently the Texas Department of Corrections.

And Texas Department of Corrections, the director at that time of course was Mr. Estelle. That’s why all these cases are versus Estelle. He was the custodian. And I got to be very close to Mr. Estelle. I produced good results for him and he liked me. I spent time with him when I went to Huntsville, and in fact, at one time he offered me the job of general counsel to Texas Department of Corrections, which I considered.

When the Ruiz case, of course, which is the massive prison reform case of Texas went to the Fifth Circuit, Mark White asked me to argue that case. I was not involved with the trial. It was tried in our division, five-six seven lawyers involved with it. I didn’t try the case, but after there was an appeal from Judge Justice’s rulings, Mark White asked me to argue the case in the Fifth Circuit and that was, you may be familiar, we hired an outside law firm Fulbright & Jaworski to write the brief, and that was the famous quote million dollar brief end quote, which Fulbright and Jaworski was paid a million bucks to, well that’s what they ended up charging anyway, I don’t know if that was agreed to in advance, but that’s what we ended up with, which at that time was just unheard of for a brief. And here we are assistant attorney general, at that time, I was making, I mean top salary something close to $50,000 a year, and I was doing Supreme Court briefs that were winning cases, and one million dollars for one brief. So Mark White asked me to do it because he said he thought I was the best appellate advocate they had and he didn’t want somebody from Fulbright and Jaworski arguing the case. He wanted me to argue the case.

So I locked myself in my office for one month and read the trial transcript and did research. The trial lasted a year, and I think of that, nine months was actually in session so there were file cabinets, and I vowed to do just the exact same thing I did in every appeal that I ever handled, which was read every word that was available, every single word. Just for starters. So I did that and I had flown over to Houston a few times and for me this was kind of an eye-opener. We’d go into Fulbright and Jaworski’s offices in Houston and they’d have a 25 foot long conference table and there were fifteen or twenty lawyers around that conference table. Some of them---Pike Powers was over there then, Brian Greig and other really fine lawyers still with Fulbright and Jaworski here in Austin, Fifth Circuit judge now Jerry Smith was one of the lawyers and I don’t know, seventeen more and we’d practice. They’d shoot me questions and I’d give them answers and we’d debate and all this stuff. And where am I really going with all of this?

I was reminiscing. There’s actually a drawing of me arguing the Ruiz case, and the man with the white hair is Mark White, Attorney General at that time, and the others are Fulbright and Jaworski lawyers who were at the counsel table while I argued the case. And of course we got completely murdered, but the point is it was interesting to me, based on the trial transcript, I stood up and argued to the Fifth Circuit that the evidence, contrary to Judge Justice findings, supported the conclusion that no inmates in the Texas Department of Corrections exercise control or authority or supervision over other inmates. That was a major issue in the case. Judge Justice found that the T.D.C. was using inmates, he called them building tenders, that was the name and that they carried out the administration’s will and that they ran the show over there, kept everybody in line and did the dirty work for T.D.C., so on and so forth, and of course T.D.C. at trial said building tenders are a fiction. These guys are seen in the hallways who have the keys to the cells, only open those cells under the contemporaneous direction of the T.D.C. guard and correctional officer. They have no discretion.

All of it was a complete lie, of course, it wasn’t true, and it wasn’t true, and they had lots of people from T.D.C. afterwards, I mean over the years, that found out it wasn’t true, and at the time I didn’t know it wasn’t true. I was looking at the trial record and I’m the state’s lawyer and I’m arguing that it’s not true. Or to be more precise, that the evidence supported the conclusion that it wasn’t true and that the evidence didn’t support that it was true.

And that’s kind of what happens in these death penalty cases as well as everything else. You’re focused on, when you’re litigating them on the state’s side, from my point of view, you are not worried about who’s guilty and innocent, who’s right and wrong. You’re worried about the evidence because you’re the lawyer. That’s what you’re trained to do. That’s why January of 1983 I was summoned to Jim Mattox’s office, the new Attorney General and with him was David Richards who was his executive assistant, who replaced Rick Gray, head of all litigation, and I knew David as having been an A.C.L.U. attorney and union attorney, left wing attorney. Jim Mattox was way up there left wing and I didn’t know what to expect. We had heard rumors in our division- every attorney general has certain issues, John Hill’s was consumer protection and when he came in everyone knew that he was going to build up the consumer protection division and he did. He had Joe Longley and Phil Maxwell come in and several other folks that were just absolute stars and did a great job.

Mark White—law enforcement had been an issue for him. I still remember his jail ad, I mean his TV ads, showing Mark White slamming the jail cell shut and he was going to be tough on crime and of course, attorney generals have nothing to do with crime, we just mess with defending the convictions afterwards, but that’s all right, that was his issue and Jim Mattox, we had, the rumor was he wasn’t going to be too kind to our division, what we were doing. He was a populist and we were worried about losing resources and what not, and so it was with some trepidation that I went upstairs. And we sat down and Jim said, “Doug, Dave and I have been talking and we want to ask you a question here. You’re acting chief down there in that division, and handle a lot of death penalty cases, or supervise a lot of death penalty cases.”

“Yes, sir, I have.”

He said, “Have you, has your division ever paid any attention or given any concern in those cases to whether the defendant convicted by the time you get it, was guilty or innocent.”

And I said, “What?”

And he said, “We want to know, have you ever thought about the possibility that some of these people may actually be innocent of what, of the crimes they are charged with.”

And I said, “No, we never have. Why would we do that?”

And he, Dave Richards, who later became my partner by the way, for a few years here, and Dave has—I don’t know if you know Dave, I adore the man now. But I didn’t then. He’s got this incredibly expressive face and when I said, “No, why would we do that?” His eyebrows just got—his whole face transformed and he said something like, “Doug, we think, Jim as the Attorney General thinks it’s a reasonable question to ask and a reasonable inquiry to make and that’s why we’re making it at this time.”

And I said, “Well, you mean, what do you want me to do?” I said, “We get these cases, I defend them, nobody ever asked me are they guilty or are they innocent? People ask me, does the evidence show beyond a reasonable doubt whether they’re innocent? That’s a far different question. But as far as forming an independent opinion, I mean 99% of the time, I don’t. I don’t know. Are you saying we should start thinking about that? “

And I was stunned. I had been through two attorney generals and neither one of them had ever said anything like that to me.

And they said, Jim said, “Yes, that’s what we’re saying. And if you were to reach a conclusion like that or think that that was a real possibility in a case, we want to know about it.”

And I said, “Okay. That’s what I’ll do.”

So I went back down and talked to a couple lawyers down there about the meeting, and said, “You’re not going to believe this. Listen to what they want us to think about. They want us to think about whether in these death penalty cases, these guys are guilty or not. Really.” Everyone was as shocked as I was, and looking back on it I became a great admirer of Jim Mattox, and of Dave Richards. Like I said, Dave was my partner for a while, and as good a lawyer that ever lived, as far as I’m concerned. I don’t know that Jim was as good a lawyer as ever lived, but Jim was a politician of course, and I think Jim was a terrific politician. I think he was a terrific attorney general. He was a terrific person and that was really my introduction to him.

So I guess different lawyers can and do look at this different ways. I guess I’m still sort of in the middle. I always tell people that that’s because I’m really just, I’m really a very shallow person and I actually do mean that sincerely. I’ve known some people, some deep profound people and I do not think I’m one of them. I just kind of fumble through and in some ways, I’m good at thinking outside the box in a particular case or an ingenious strategy, that’s one thing, but as far as being profound about anything, I don’t think I am, so I don’t really know what any of the answers are, but I think you learn something from everyone, and from a lot of people you didn’t think you could ever learn anything from, and you pick up on those interactions from those people as you go through life and Jim and Dave were those people who ended up having a big impact on me. I guess maybe not that big an impact because three months later, Gray came to me and said, “Hey, what do you think about going into private practice?”

And I said okay and resigned and left the Mattox administration, although as I said, I gained a lot of respect for Jim when he said, after I tendered my resignation a couple of days later, he said, “Doug, this has in a way, I guess, I’m not trying to change your decision or anything, but I just think you deserve this based on your performance and we’re going to make you, promote you to Chief of the Division. And it’s not contingent on you staying, that’s what were doing.”

I said, “Thank you very much.” I appreciated that. And the rest is history.

RAYMOND: I understand that you’re not there very long after having had this conversation. Did you have any conversations with your colleagues at that point, in early January, about what it would take, what it would look like if you actually started thinking about whether people were guilty or innocent?

MR. DOUGLAS BECKER: You know, that’s a good question. It was my job to pass this on to the attorneys doing death penalty work, and at that point I’m trying to recall. I think Leslie Benitez was still there and she may still have been the only one. I don’t recall. I know over time as there got to be more and more of these cases, there got to be more people that were working on it. And Bob Walt was one person who was very involved after Leslie left, and I understand Bob was a very fine lawyer as well. And so I’m sure I had discussions with Leslie, or whoever else had this responsibility. And I took it really broader than that. I don’t recall them making it broader than that. But I took it broader than that, that you’re supposed to think about the justness of our positions, not necessarily just limited to death penalty cases. And that is something that was new as well.

You know the rules of ethics on prosecutors, district attorneys, well the prosecutor’s job is to do justice, not to obtain convictions. And that’s the [inaudible], I guess I suppose as a universal rule, not just in Texas but everywhere, that’s what the rule is. Very clear that that rule is not always followed in Texas or other places. And it was a difference, it was kind of a- I felt like we were being instructed to have to think about more difficult questions than we ever had had to think about. You know it’s hard enough to win the damn cases without worrying about whether you’re doing the right thing, when you’re doing it. And that rule about prosecutors, is for actual prosecutors. We weren’t prosecutors. We’re civil attorneys. In fact, they’re not even criminal cases. By the time it’s a habeas corpus case, that’s considered a civil case. And so our duty was, according to the rules of ethics, to represent our client zealously, within the bounds of the law, the law and the rules of ethics. And that’s what we always have thought about. I am sure that, I mean it wasn’t like Dave or Jim said this to me and I was an instant convert. I thought they were wrong. I thought “We’re not prosecutors. We don’t do that. We represent our clients zealously within the bounds of the law.” But I was instructed by my superiors to act differently, and so that’s what I was going to do, because they told me to.

And I don’t think, I do not recall anything even close to roundtable conference room [interruption of phone]- I’m in conference going to need to call them back. Thank you.

-heart to heart, or the discussions about how we were going to carry out these new directions honestly. But I think it was just more definitely a change in atmosphere. And to some of the, I don’t know we probably had twenty, twenty-five lawyers in positions at that time. To some it was confirmation that obviously “They hate us,” they don’t like us out there. They didn’t want us to think about that. They must not think we’re doing a good job. And I don’t know if I felt very differently from that. Obviously they felt that that part of their job they weren’t doing very well- we weren’t doing it all. They were saying something was part of our job, we didn’t consider part of our job.

But I did after that. There wasn’t really enough time, the short time I was there. You know I remember exactly, he came in January 1st and I left on April 1st, and I’m pretty sure it was January, but it could have been late January. It wasn’t the first day he was on the job, I’m not sure it was that much time afterwards. So I can’t give you any specific example of something that transferred into- that wouldn’t have happened that way before he got there. But I’m sure over time there would be some opportunities for that to have happened. It just didn’t.

RAYMOND: Thank you. I want to shift for a bit if you’re finished with that.

MR. DOUGLAS BECKER: Yep.

RAYMOND: As assistant Attorney General, or as chief or active chief all this time, you must have had quite a bird’s eye view, I’m imagining, on Texas law enforcement. And one of the things that we’re really interested in is in the regional differences if there are, or just how different counties operated, especially during the time you were there. I wonder if you have any comments about that.

MR. DOUGLAS BECKER: Well you know, my perception, and let’s talk about district attorneys’ offices, which I would have been familiar with, my perception is that it wasn’t, they did operate tremendously differently. You had some places like Travis County, rarely sought the death penalty, and then you had Harris County, that would apparently seek death penalties on a much more frequent basis. That was not a reflection, directly, of the demographics of the county, as much as it depended on who was the leader, who was the D.A. Now of course I suppose there’s got to be some relationship between those two, but not necessarily always. And a particular D.A. could be very hard on crime and not be a big believer in the death penalty. It could be Dallas County or wherever. What are the things you would like your District Attorney to believe, you know what on a scale of one to ten is important to them, let’s say.

Let’s say you’ve polled the whole county, this would be the list, and there’s not a D.A. who is exactly going to mirror that list. There’s gonna be differences. So I think it was a from the top down thing. You know, Henry Wade was District Attorney of Dallas County and I’m not sure of the exact dates, I’m sure some of it was when there was a death penalty, cause it wasn’t that long ago. Some of it may have been after there wasn’t one. I don’t know, but Henry Wade was a very enthusiastic, zealous prosecutor. And that attitude definitely spilled down through the courts. I would have to say that really the worst excesses, and I’m not talking really just about death penalty cases here, although some of them did come out in Dallas County, Randall Dale Adams, for example, and others. But a lot of cases where there were excesses by prosecutors and there were a lot from Dallas County, and I think that that was a from-the-top-down thing.

And you know we’re getting a little philosophical here. As a leader you have to be careful, the same way on a bigger scale the President has to be very careful about every word he says, because there are people hanging on that word, and there are people that will interpret that word. And every word that comes out of his mouth is extremely important.

And the same thing for a District Attorney, what the District Attorney projects that they’re about. Are they about, oversimplified, are we about obtaining convictions or are we about doing justice? And no doubt where somebody like Jim Mattox would come down on that. You know Jim is from Dallas, way across the scale from, on the other side, where Henry Wade would come down on that. And that made a huge difference in my opinion? Yes. It does.

So you know in Harris County you have district attorneys that were pretty gung ho on the death penalty, and thought that they should go out and seek it and think that they’re gonna have staff that’s gonna do that. And this, I know this is very anecdotal, and I’m not basing it on much except impressions. As far as the ethical conduct of assistants, I don’t really much have an impression in any particular places which are a hotbed of prosecutorial misconduct, except it was occasionally difficult to ignore Dallas County. Maybe I just happened to get cases that were not the best cases, or whatever.

And here’s another thing. You have besides the district attorneys, you have the police. And that’s important too. I think there’s some definite interrelationship there, because if you have a district attorney that police say is soft on crime, that influences their conduct. If he’s tough on crime, and they’re going to prosecute these people they bring in, that influences their conduct.

And you know the police departments that I remember a lot of questions being raised about, to some extent in Dallas, but Houston. And it’s just maybe unfair to blame, the Houston police department is what, even back then, three thousand officers. To reach conclusions on the basis of a real limited number that I know of. But gee there was the Joe Campos Torres case, and then there was the Calvin Sellers case, in which, that was a habeas corpus case that was in our division at the time, we had it. And we were defending a conviction that was based on a confession, that at the time it was signed, the accused person who signed it was on the floor of the backseat of a police car with his head on the floor and a policeman’s boot on his head, and they had a gun pointed at his head, saying “You will sign this or you will never see the lights of Houston again.”

That is police misconduct, and when our own witness testified to that, it was rather shocking. I guess we were naïve in a way. We always wanted to think that our clients were good guys, and played by the rules. Not all of them did. And so I still, I’m really optimistic and maybe naïve somewhat. I still think a great majority of D.A.’s, assistants, police officers are motivated to act honestly, with integrity do their jobs the right way, and that those who don’t are the minority. I don’t think that they’re all tainted. I’ve know too many of them, and known a lot of them who had such integrity, that it’s very impressive to me, police officers and prosecutors.

But every now and then back things pop up, and yes I think that the leadership of the chief of the police of the police department, the District Attorney, D.A., talking about the Attorney General’s office. Yes I think they have [inaudible].

RAYMOND: You mentioned Jose Campos, or Joe Campos Torres. Did you want to…?

MR. DOUGLAS MR. DOUGLAS BECKER: Yeah I didn’t know anything about the case. It was just in the newspapers. In fact, I may have been in law school at the time, but I sure remembered going to, there’s an Austin band, I think they’re still around, the Uranium Savages, and they did satirical songs. They were hilarious.

And they did a song about Joe Campos Torres, to the tune of Jambalaya, I guess, “Hello Joe, you’re gonna go for a swim-o, gonna be rough with the cuffs on in the bayou.” It went on from there. So it was a big deal in the newspapers, and I all knew about it was what I read in the newspapers, and they [inaudible] the suspect after a while in the bayou and drowned. And the H.P.D. did it. That ain’t good. It doesn’t take too many incidents like that to sully the reputation of your force. But I [inaudible].

RAYMOND: I just want to- this is all really important and fascinating, but I’m gonna just ask you to spell out more what you meant when you said that if a District Attorney, if the police perceive a certain District Attorney as either tough, or soft, on crime that that influences the force.

MR. DOUGLAS BECKER: Sure. Well, I think it’s a matter of atmosphere in the office, and of course the police aren’t gonna talk to the District Attorney, or very rarely. But they’re gonna be talking to the assistants on a regular basis. And they are definitely gonna have their view of those assistants. Now when a case is taken in and prosecuted, they don’t know which assistant is going to be working on that case. It’s going to be assigned out randomly, but they’re going to have an impression of all those assistants.

I’m suggesting that those assistants are taking their cues from the District Attorney, at least to some extent, and so therefore, if you’ve got gung ho D.A.’s who have a very- well- you know it’s prosecutorial discretion, and that’s a big thing in this country. Our whole justice system is built around prosecutors who, they don’t have to prosecute any crime. And for better or for worse that’s the way it is in this country. When I took criminal law, criminal procedure in law school, there was a whole lot of time spent on that subject, because you can parse and analyze criminal laws all you want. But gee it’s rather important whether this prosecutor is going to prosecute this case. If so, what crime he’s going to charge. Some of them are a lot more aggressive than others, so once the police have a feeling for how that’s going to be treated, that’s going to influence the level of truth they feel like they’re going to have to have before they make an arrest. That’s really all I’m saying.

And if there’s a low level, and oversimplifying, if this D.A.’s office is going to prosecute everything, we don’t need much to bring somebody in. On the other hand if it’s really going to be tough, going to be really questioned, especially on things like Fourth Amendment, search and seizure, and on confessions, are these valid confessions, was it coerced, were rules followed. If the feeling is that we’ve got to cross the T’s and dot the I’s on this case, or else people over here aren’t going to prosecute our cases very much, then I think that the police will be more inclined to try to do that. It’s a personal opinion. I think that’s good. I think they should. I think most Americans would say “Yeah that’s what we want our police to do,” if you phrase the question that way.

On the other hand, if you phrase it a different way, you’re going to find a lot of people saying “Screw the proof. If they know they’re a dope dealer take them in,” or in the version that the police use sometimes “You can beat the rap, but you can’t beat the ride.” Well I think that the extent to which there are rides is influenced by that. That’s what I think.

RAYMOND: Just how are we doing on time.

CHAMMAH: Oh I think you might be out of time.

MR. DOUGLAS MR. DOUGLAS BECKER: I am.

RAYMOND: Mr. MR. DOUGLAS BECKER, thank you so much. I wonder if we may come back?

[Tape 2 ends]
[Tape 3 Begins]

MR. DOUGLAS BECKER: Okay well then, are we starting with wolf lawyer?

CHAMMAH: Sure, why not?

MR. DOUGLAS BECKER: Wolf lawyer, by John, my stepson. When he was- that’s a portrait of me. He was about, I are going to say six, seven years old he was completely into werewolves, right? And so- maybe not completely, but he was well into them. And so this is me as wolf lawyer, you see the briefcase. My wife and I thought it was so remarkable that there it is, framed.

RAYMOND: Thank you.

MR. DOUGLAS BECKER: And this is Vincent Lee Walker, my cousin, one year younger than me, who as we discussed last time, was murdered in the line of duty during a routine traffic stop in 1972, my first year of law school. He went by Jerry, even though his name was Vincent Lee, so that was the only thing anyone ever called him and I’d say he was my best friend and it was a terrible loss. And his mother, my aunt, gave me that picture several years before she died, because she said she knew I’d want it, and might as well have it then. He was a deputy with the Bexar County Sheriff’s Department. And that’s that.

RAYMOND: Thank you. So we’ll move to the other room.

[Tape cut]

MR. DOUGLAS BECKER: This plaque has my name, Attorney General’s office, Chief of Enforcement Division; “With deepest love and admiration for the world’s finest appellate attorney and a great division chief.” Given by of course the broken hearted employees who saw me go into private practice. The dates are April 1st, 1983 to April 13th, 1983, which I was division chief for twelve days because then Attorney General Jim Mattox promoted me from acting chief to chief on April 1st, after I had given my resignation, and April 13th was my date I had told them I was leaving so that’s kind of special to me.

And then I guess you can show the, well heck, let me bring my son into it. The football picture over there and the jersey hanging on the door belong to my son. Dylan, in 1996 he was on the state championship football team at Westlake with Drew Brees and he was kicker. Kicked everything, field goals, kick offs, punts, everything. And that was a great moment. He was so good that in the state championship game the coach had him try a fifty-three yard field goal, which he missed, but you know at least he tried it. And then the painting of the Alamo my wife Dianne Arnett Becker did, took her a year off and on. It was a birthday present, anniversary present, well it was one of those, and I’m very fond of that. She just started painting about maybe ten years ago out of nowhere, and she turned out to be pretty good.

RAYMOND: Very nice.

MR. DOUGLAS BECKER: And so I guess that’s it.

RAYMOND: That’s good. Thank you very much. I did want you to talk about this picture with Ruíz.

MR. DOUGLAS BECKER: Oh yeah. You missed my autograph of Newt Gingrich.

RAYMOND: Oh I’m sorry. Let’s not miss anything.

MR. DOUGLAS BECKER: My autographed Newt Gingrich picture, with Newt and that’s his second wife. The one he left his first wife for. And you can see the sign. And it says “Dear Mr. Becker, Thank you for your steadfast commitment to exposing me as a ruthless prick, and who served my first wife with divorce papers as she lay dying of cancer in a hospital and who, since then, has spent every waking moment trying to screw the poor, the powerless, and everyone else less fortunate than my fat-cat campaign contributors.”

So that’s a good one there from Newt. I don’t see Newt much anymore except on T.V. Actually I’ve never seen him except on T.V. I sort of doctored that.

RAYMOND: Yeah

MR. DOUGLAS BECKER: He might not have actually sent those out.

I just have to tell you a story. I had a client one time from California who was in here and he saw the picture and said “Oh you’re an admirer of the Speaker too.” I guess at the time he was Speaker, or maybe he was just calling him the Speaker, like you’re always the President. And he was kind of a short little guy, and he looks at it and he starts reading it and he says “Oh my. Oh my. Oh my.” That was it, and we never discussed politics, but he kept me as his lawyer, so I don’t know.

And then finally here is a drawing of course from one of these people who sit in courtrooms and draw with chalk or pencil or whatever it is. That was, I guess it was 1982 I was arguing the direct appeal of the Ruiz case in the fifth circuit court of appeals with the three judges who hammered me pretty solidly throughout the argument. It was pretty close to a bloodbath. This is Attorney General Mark White who did, I think, a five-minute opening and I did the rest. And these are a couple of the Fulbright Jaworski lawyers who helped me prepare for the argument.

RAYMOND: And the woman who’s arguing right there?

MR. DOUGLAS BECKER: That’s me.

RAYMOND: Oh.

MR. DOUGLAS BECKER: I had longer hair then.

RAYMOND: You had long hair there, oh, okay. I wouldn’t have guessed that.

MR. DOUGLAS BECKER: I got a haircut since then. There you go.

RAYMOND: Excellent. Thank You.

MR. DOUGLAS BECKER: Sure.

[Tape Cut]

CHAMMAH: Now we’re back.

RAYMOND: Okay so thanks again Mr. Becker.

MR. DOUGLAS BECKER: Certainly.

RAYMOND: Before we get restarted for real, it’s December 7th, we’re in your office again. Maurice Chammah is behind the camera again and I am Virginia Raymond. I’m just going to, do you need me to review the purpose of the study or anything?

MR. DOUGLAS BECKER: No ma’am.

RAYMOND: Okay, so the main risk that I could see is that we would accidently release this before you have approved such public release. I’ve explained the risks and benefits to you before. This is just a consent for the continuation of the interview today.

MR. DOUGLAS BECKER: Sure.

RAYMOND: We will not release anything without, until we actually have you review the transcript and make changes and review it, correct it, donate it.

MR. DOUGLAS BECKER: Sure.

RAYMOND: It won’t become public until you say so.

MR. DOUGLAS BECKER: Okay.

RAYMOND: If you say so.

MR. DOUGLAS BECKER: And it’s Pearl Harbor day.

RAYMOND: It is. December 7th.

MR. DOUGLAS BECKER: Mother’s name. You want the whole name?

RAYMOND: Sure.

MR. DOUGLAS BECKER: Too late, you got it.

RAYMOND: It’s a pretty one.

MR. DOUGLAS BECKER: The Lillian one’s good. The middle one, Eunice, not so much.

RAYMOND: I didn’t have Eunice on this consent form, so. I have the alliteration. Nice.

MR. DOUGLAS BECKER: All right.

RAYMOND: Thank you so much.

MR. DOUGLAS BECKER: Yes ma’am.

RAYMOND: So just a second ago you were showing us the portrait of you arguing before the Fifth Circuit that I mistook you in, because of your long hair then. I wonder if you could tell us about Ruíz. You started at the Attorney General’s office, it must have been...

MR. DOUGLAS BECKER: 1976.

RAYMOND: Okay.

MR. DOUGLAS BECKER: And just as a rookie lawyer. I had been a briefing attorney on the Court of Criminal Appeals for about a year, fifteen months or so. And then got the job when John Hill was the Attorney General in the Enforcement Division. And not long after that the Ruíz case geared up and started to go to trial. I’m not sure what year it was actually tried. Let’s see we argued on appeal in 1982, so we probably got the opinion in 1980 or so. And the trial must have been over 1979 or so, don’t know the exact dates. The trial itself lasted a year, off and on for a year, more on than off. And so as you could see from that time-table it was, I had been there for awhile. I had almost no involvement in the trial. I was not on the trial team thank goodness. It was an ordeal for the lawyers. They had a blatantly unfriendly judge, William Wayne Justice, and pretty well knew I think that they were destined for a loss in his court. There was not a jury trial. It was him making findings of fact, conclusions of law. Again I don’t know, maybe I shouldn’t, maybe all of them didn’t admit that they thought they were going to lose from day one, because as a lawyer you know you get fired up for a case, and I’m sure- There are many, many different issues in Ruíz. It was comprehensive. It covered everything from use of force to medical care and education, overcrowding was a huge issue, probably the single biggest. And inmate control over other inmates and food and nutrition, just about every aspect of life in the Texas Department of Corrections, so all the issues were not equal in status and I’m sure they had some hopes for some of those issues.

It was pretty much a loss across the board at trial and of course Judge Justice’s opinion just hammered T.D.C., made unfavorable credibility choices where necessary and made interpretations of constitutional and other law, for the most part unfavorable to T.D.C. I haven’t read that opinion lately. It’s been a number of years. I don’t think that we completely lost every issue before Judge Justice, but as everybody knows it was very decisive decision and led to long lasting, permanent reforms in our prison system.

And I think I mentioned this in the last interview. By the time the opinion came around I was appellate coordinator I think was my title in the division. I was doing a lot of appellate work going to New Orleans where the Fifth Circuit is located regularly. Liked doing it and thought I had good results overall and Mark White, who was Attorney General then, asked me to do the oral argument. He wanted, I guess partly for political reasons, even though Fulbright Jaworski was heavily involved, wrote the brief. On appeal he wanted at oral argument, the public face of it all, he wanted to begin the argument and have one of his lawyers deliver the argument. So I prepared for it, and I took, as I recall, a month, a full month put everything, every other case I had got temporarily assigned out to someone else and I basically sat in a room with the Ruiz case record, which was an entire room full of I don’t know how many file cabinets, and read essentially every word of it. Maybe not every single word of every exhibit, but certainly all the trial testimony and the major exhibits and all of that stuff and prepared by- they sent me to Houston. Fulbright Jaworski, they have big offices here now. I don’t think they had as big offices then but anyway they sent me to Houston, the main office, gosh I don’t remember, a couple or three times for mock arguments. And of course constant discussions once we got to that phase of it to prepare to advance our case and all that stuff. So I argued, made the argument. I guess at that point I had already done, I don’t remember if it was three or all four of the United States Supreme Court arguments. I had done an en banc argument in the Fifth Circuit. It was pretty interesting, it was fifteen judges at one hearing, if you can imagine.

So I’d had a good deal of experience. I liked doing it. I was honored by the request. I did the best job I could and at oral argument I more or less felt like Luke Skywalker facing three Darth Vaders with the laser beams shooting around me all the time. It was, I don’t know if it was a good argument, I had almost no opportunity to really say anything, which is not too surprising. It was all questions, but they were, not all but I remember it as being very hostile, and by that I don’t mean that the judges were rude to me, or mocked me, or mocked the State’s position, at least not consistently, or anything like that. But I mean it was really defensive. It was very, very difficult to try to take the kinds of questions they were asking and turn them around.

I was glad I was familiar with the record, because two thirds, at least half I would say two thirds of the argument were questions of the sort “Is it correct that the record shows so and so?” Judge Justice said that this is the case on a particular issues-- “What in the record contradicts that finding, if so what evidence do you rely on?” And it was very detailed questions and I was I guess happy with how I did since I knew the record well enough that I think afterwards, I recall, after talking with the lawyers, that I had misanswered one question and got all the rest of them right, which was, if you were there, that would be pretty good, because there was not anything too small to ask about, I guess I should say too detailed, if they thought it was important.

So that’s what the argument was like, and from the looks of the opinion, they pretty well could have sent a middle school student up there to do the argument, for all that I was able to accomplish for the State. And that was the Ruíz argument.

RAYMOND: Looking at the opinion it looks like they accepted most of Judge Justice’s findings.

MR. DOUGLAS BECKER: Yes.

RAYMOND: The question for them, that they struggle with more, or the opinion says “but the relief is too broad, and it’s not the business of the Courts to manage,” what is the language here? Anyway it’s not the business of the courts to manage prison systems.

MR. DOUGLAS BECKER: Day to day prison operations, yeah.

RAYMOND: So in your argument and in your pleadings, how much of these two big issues did you focus on relatively?

MR. DOUGLAS BECKER: That’s a good question and it has been a long time, but, and I’m sure there was some questions about the, and it’s two things. One is when Judge Justice says “Well the prison system has to do this, this and this, specifically in order to become constitutional.” There was some drawing back by the court on the exact details. It was more like “Well in this area, medical care, let’s say, is deficient.” And Judge Justice says they have to have this many doctors to make it sufficient. Well now it’s over-management. We don’t know how many more it takes. We will leave that to the State, tell the State that the medical care has to reach these standards, and if it doesn’t now then it’s unconstitutional. But some of the details, more of the details were left for the State to work out itself, rather than have these, I guess, edicts come down from Judge Justice about the details of it. That was one thing.

Then the second part was the monitoring, and he had a lot of monitoring going on. You know as I sit here I can’t recall what monitoring they knocked out, but there was a whole heck of a lot of it that continued to go on, with the Ruiz monitor. Was it Ray Procunier? I think is who that became.

And the Ruíz case continued. When Rick Gray and I started this law firm, April first, 1983, the Ruíz case was one of the, oh I don’t know, half a dozen, ten cases we had on contract with the State to continue to work on as outside counsel. And Rick Gray was actually lead counsel for the State for a couple of years after we started to the law firm. And at that time Red McKaskle was the director of the Department of Corrections. And Rick, particularly, though I was involved as well, spent a lot of time with Red McKaskle and we thought he was really good. He was inheriting an impossible situation. I guess I shouldn’t say impossible but you know you gotta remember this was, what Judge Justice did was so shocking to the administration and to the board of the Department of Corrections for so long it had their way about how the prisons were run, and there wasn’t anybody questioning them much on what they did. And the other prison people, it’s a whole culture over there you know. They have, there are generations of prison guards, prison officials, people were wardens whose fathers and grandfathers worked there, and cousins and everything else. And of course the population was much smaller than. I think the population was something like thirty thousand then, may have even been less. What is that? Three to five times that now? A hundred and fifty to two hundred thousand, I’m not sure, maybe more.

And they didn’t have near the number of units. they didn’t have near as much staff. They didn’t have near as many facilities. That was part of the problem. They had, you know, the worst of it, I think it’s referred to in the opinion of some cases, they had five inmates sleeping in a five by nine cell designed for two. That is such a staggering fact. More than once I have marked out a five by nine space and imagined five men living in that space. Of course there are two bunks, so three men would sleep on the floor. One of them would be, you know there’s a little sink, a little toilet and you’ve got five people in there. And I remember Mark White more than once just becoming apoplectic about the prison system not being able quickly to resolve that problem because no one could defend that. And he knew no one could defend that. And he was like “For God’s sakes get the inmates off the floor!” We’re in federal court trying to defend this, and that was before the argument and after the argument. Just being frustrated with the pace of progress because as a lawyer you try to defend everything, but some things are indefensible, and if they are you need to get them out of your case by changing whatever it is.

So I know that one of the things we were extremely involved in was use of force, which of course was a huge issue, talk about overcrowding and medical care, medical care can of course be a life and death issue, but use of force was a big issue and had been a big problem at T.D.C. for a long time, and Rick was very involved with that. We started setting guidelines they had never had, started filing reports on use of force instances they had never done, there were some wardens who had a reputation I assume- I know some of the facts involving those wardens and some of them were regarded as sadistic. That was not the prevailing, I wouldn’t say that most T.D.C. wardens were actually sadistic, but there were a small number who were and that had to go. There was- one of the most respected wardens at T.D.C. in those days, before, during and after Ruíz, said to me at one point, we had a discussion about this, he said “You know the difference between a good warden and a bad warden at T.D.C. is that the good wardens see an inmate gets whooped when he deserves it, or needs to be and the bad wardens don’t have that judgment, or are indiscriminate, and that’s bad.”

And obviously I had never forgotten that, and that’s the way the culture worked before Ruíz. There were staunch defenders of that doctrine. They would point to the violent nature of a lot of T.D.C. offenders and the nature- they were in a prison. And from time to time, almost a social argument, it would improve everyone’s safety, including the inmates, everyone’s living conditions, including the inmates, if some inmate that was causing trouble, not just for the staff but for other inmates, was put in his place with use of physical force, that that would benefit, there would be a social benefit that would come out of that. They would defend it by saying that it improved the inmate, not unlike arguments made for corporal punishment for children. If this- it’s never right to kill anyone, maim anyone, but if some pain, getting roughed up makes the inmate behave himself better, that benefits us all. That was the basis or rationale for it. Unfortunately for that point of view, the courts had held in Ruíz and elsewhere, that the Constitution doesn’t permit that. The infliction of pain without due process is something that we’re not supposed to put up with as Americans, to anyone. And so there was, I can’t overemphasize what a drastic change in attitude or approach that was for T.D.C.

And Rick, my partner, for a while, oh boy he was- we always got along with the top administration. They recognized big changes had to be made. There was no way around it. The system was gonna have to change. You could debate philosophically whether that would be good or it would be bad. The vast majority- not all- but the vast majority of the prison people thought that it would be disastrous in the long run, that it would be terrible, that you would have chaos and riots if you didn’t have the traditional means of control. And that this was a huge mistake and all.

And I think there were some difficulties in the transition. I guess I could make the analogy again. If you have a parent who is used to using physical violence to control their children, and all of a sudden they’re told they don’t have that control mechanism anymore, there’s gonna be “Well, What do I do now?” And so uncertainty, and you can send them to, like some families get sent these days, in the Family Law courts or whatever, to parenting class, and teach them new methods on how to discipline their children. But it’s gonna be difficult while those are learned and inculcated and carried out and there’s gonna be growing pains along the way and there’s gonna be failures. And I guess that’s the analogy I’d make for what T.D.C. went through.

Now so many years later, it’s gonna be more second nature, as the differences that the courts have said the Constitution compels. But in the meantime a lot of heads rolled back in the early eighties and Rick, me more behind the scenes, I worked on a lot of the use of force cases, they’d investigate use of force cases and they’d find that certain guards or wardens or assistant wardens or whoever it was should be terminated. Rick actually terminated them after discussing it with Red and if they needed firing they got fired. And that’s the way things worked in order to make the transitions the courts said we had to make, but those were interesting days.

RAYMOND: So right now you’re talking about the period after Judge Justice’s order and the Fifth Circuit and so forth. But I wonder, you mentioned that some things are indefensible and they had to change. What were those conversations between the lawyers at the Attorney General and Fulbright Jaworski or whatever, and the prison officials about which was which? Which was an issue that T.D.C. [tape cut] and which were the issues that lawyers had to say to T.D.C. this is indefensible, we cannot defend this, you need to change. How did that process take place?

DOUGLAS BECKER: Well, you know some of the indefensible things that I’ve mentioned is the overcrowding, the degree of overcrowding, the use of force upon inmates, either by prison guards or by other inmates at the instigation of prison guards. Those were things that absolutely could no longer go on. And you know there were other things, nutrition, there were deficiencies found and that’s a matter of degree. No one was starving to death at T.D.C. And medical care too. Serious medical problems went unattended for too long, so you want to get that as close to zero as you can.

Again that’s a matter of degree. But the overcrowding and the use of force were two areas where you could at least somewhat draw a bright line. Especially on use of force you could draw a very bright line, that pain could not be inflicted for punishment because T.D.C. is not a court, and even if it were a court, we don’t inflict pain for punishment in this country. So there’s a bright line that could be drawn. Of course the only amount of force that could be used was the same as a police officer on the street; minimum amount necessary in order to effectuate the valid purpose of the encounter.

And with overcrowding, we had pretty much a bright line. If you got a five by nine cell designed for two men, you pretty much had to have two men in it. And dormitories- there were experts who had a minimum number of square feet per human being in a dormitory situation. Things of that nature. And so those things were more bright line rules and they were enforced. You know you can’t build more prisons overnight, but that struggle there was with the legislature, because you know the prison people, they never liked the overcrowding either. I mean that’s one of the things that they never tried to defend from a penological point of view. There’s no penological justification for having five people in a space that’s designed for two. And they didn’t like it either. What happens to human being when they’re enclosed like rats in a cage? Well there’s more violence, and more stress, and more all kinds of things the prison people didn’t want in their prisons, but they couldn’t fix it unless the legislature appropriated more money, and so under court order the legislature began to build more prisons.

So that was not something that the prison folks had to be dragged into. It was overdue and I, no doubt, knew they had been screaming for more prisons from the Legislature, and they didn’t want to spend the money. Politically that’s, we all know, extremely difficult for a legislator to defend spending money on prisoners. No matter what it’s for. Doesn’t matter if it’s doctors or space or whatever. It just tends to become a campaign issue. “My opponent voted to make the Department of Corrections into country clubs.”

They are still, I still go over there regularly, and visit clients that I have inside of prisons and even today I promise you it ain’t no country club. And back then it was even much different from what it is now. And so if you move to use of force. There was a- not all of the T.D.C. folks were completely honest with their attorneys at the trial stage of the case. It’s always shocking that clients don’t tell you the whole truth, because it’s hard for you to do your job correctly if you don’t have the whole truth. But I’ll tell you now after thirty-five years of practicing law. It happens all the time. A client thinks that something that’s really gonna hurt their case, and you won’t be able to find a way around it, and they’ll try to lie about it. And so that’s a problem. If you don’t have an objective way to disprove it, you can talk to your client, as we often do, about how we have to have the truth and is this really the truth about this and what about that, and if they stick to that story and say that’s just the way it is, then you have to defend that. The ethical rule says that the lawyer cannot knowingly permit perjured testimony to take place. Well, when do you know? Not very often can you say, “I know that this witness is lying.” You can believe it, but it’s hard to actually know, especially if it’s a matter of interpretation, or involves mental intent or something like that.

And I know that there were witnesses at trial, T.D.C. witnesses who denied a lot of things were going on that were in fact going on and they had to know that it was going on. Just to think, at oral argument, as fervently as I could, that Judge Justice was wrong in finding that the record showed that any inmates exercise supervisory control over other inmates. And there were witnesses who testified to that and defended attacks on them because they testified to that from the witness stand. And so that’s what I argued, and it wasn’t true. It was just not true.

And at the time I didn’t know that it wasn’t true. I read testimony from inmates that said that it wasn’t true. I read other testimony that said that it was true, so I defended the State’s position on that as a factual point. The building tenders, well that’s the word that the plaintiffs used, and I think it was the word that was used to describe an inmate that has supervisory authority over another inmate, carried out the warden’s wishes, up to and including physical punishment for certain things. Some of the T.D.C. witnesses even said “We don’t have building tenders. We don’t know that term. It doesn’t exist.” Well it did exist. They existed, and the inmates who stood in the hallways and had possessed keys to cells and to passageways and that sort of thing. We said the evidence fairly showed they used those keys only under the direct instruction of a T.D.C. official, so they were not exercising discretion in what they did. Really wasn’t true. There’s a difference, of course with any prison situation there’s always going to be confidants. Some inmates are snitches and that’s how they operate and they’re gonna keep the administration informed and so on and so forth. That’s essential. I know the prisons rely on those people for information. That information saves lives. They can find out a gang has a hit out on an inmate, then they can take measures to prevent that and save a life. And in many cases they are not gonna know about that, there’s no way for them to know about that unless someone from inside snitches because they perceive benefits for themselves, psychological or ego or heck I’m sure material in some way within a prison setting.

So that does go on, but all that is different from dispatching trusted and loyal inmates, that the plaintiffs called building tenders from carrying out discipline, punishment, keeping order, and doing other things that the Ruiz case says only the officials can do. I’m not sure I’ve answered your question, but I’ve tried to.

RAYMOND: This is really important, but you’ve said several times that when you argued before the Fifth Circuit, you believed the State’s position. You believed it to be true. And you wouldn’t have argued it otherwise.

DOUGLAS BECKER: Well that’s not a hundred per cent right.

RAYMOND: Oh okay.

DOUGLAS BECKER: That’s close to right. I didn’t- I don’t know that I believed that it was true. But I believed there was a good faith basis, based upon the evidence and the sworn testimony to argue that it was true. And it gets back to the role of the lawyer. I wasn’t the judge. I was just the lawyer. I didn’t want to be a judge. I wanted to be a lawyer. I actually was a judge for about ten years, and as community service, unpaid, I was associate municipal judge in the City of West Lake Hills. And you know once in a while I’d go out and have court and try class C misdemeanors, mostly speeding cases and some other things. But I didn’t like it. I wasn’t very good at it, because I hated it. I hated having to decide who was telling the truth. I hated having to rule in favor of one person. I like much better just to take either side and argue what you could on their side, and let someone else take that kind of heat and pressure. Some people love what you do as a judge, but I would never want to be a judge.

And so I’m just saying it was ingrained in me, within the bounds of ethics, to read that record, argue the State’s position the best I could. If there was no basis in the record to argue that, I would- On the same time I would never, ever have made an argument that I knew was factually false. And so I’m quite sure my state of mind, I know, when I argued it, was not that I knew what I was arguing that particular regard we’re talking about, building tenders, use of inmates, was false. I did not know that. And I knew it was a subject of debate and disagreement. And there was plenty of testimony for me to argue that the State’s position was correct there. That’s what I did. If somehow I had known that wasn’t true, I mean it would be hypothetical, but just as a hypothetical, some prison warden that I knew and respected came to me and whispered, “Hey, Doug, you knew the names of the five wardens that testified at trial. They were all lying. Of course there’s building tenders. Use them all the time. Just thought you’d like to know.” I don’t know what that would have done to me. That would have been a real serious problem, because you could never stand up and quote lie end quote to a court. Well, I couldn’t ever. I’ve never done that in my life, even one time. No matter how much pressure there was to do it because of the horrible consequences that would befall my client if I didn’t. That’s just not on my radar screen. Nor is it on the radar screen of the vast majority of lawyers, I would optimistically say. So it wasn’t like that. I thought that there was plenty to support what I was trying to argue, and it was only, oh I’d say a couple, three years after the argument I realized it really could not have been true.

RAYMOND: And how did you realize that?

DOUGLAS BECKER: From our involvement in the Ruiz case, after, because we were doing a lot of work. We were in prison units a lot. We were dealing with wardens and with guards and talking to a lot of people. Rick Gray was doing more of that than I was. He was lead counsel for the State. But you know we had, at any given time, any number of use of force investigations that were going on that we would have to deal with, and I would get assigned to some of those, spent a lot of time with those folks.

RAYMOND: So when you say you visited prisons, there’s one kind of visit that’s just the regular attorney-client privilege in particular places. But it sounds like you had a lot, am I correct in hearing you say you had a lot more access than that.

DOUGLAS BECKER: Oh yes.

RAYMOND: Can you talk about your visits? One of my questions is, did you visit the prisons before you argued the case in front of the Fifth Circuit, and could you talk about those visits?

DOUGLAS BECKER: Oh absolutely, because remember, in the law enforcement division, we defended all the law enforcement oriented state agencies; T.D.C., D.P.S., Private Board of Security Investigators, Board of Polygraph Examiners, and all those sorts of things, so we defended civil rights cases. Yeah there would be depositions taken, and they’d file a lawsuit, use of force, unconstitutional practices, or whatever and you’d go over and you’d take depositions. If they had counsel you’d go to the prison and take depositions there. So I was doing that for years before the Ruiz case. It had nothing directly to do with the Ruiz case, and was in- or you’d have an incident in one prison, and one of the witnesses would be transferred to another prison, a guard or inmate, and so you’d have to go to another unit. So I was in, Jeez at that time there weren’t as many. Maybe twenty, surely not more than twenty-five. Of course now there’s quadruple that at least. I think I was in all of them at one time or another.

And when I went there, the Attorney General’s office, I saw them all, and there was nothing that was off limits to us, as far as I know, in terms of physical facilities. I’ve seen Death Row, seen the execution chamber, it was in the Walls Unit, and administrative segregation, the cafeteria, dining room, everything, recreation areas, medical areas, seen them all. And also the officer’s dining room, where we routinely, can’t tell you how many times, had lunch in the officer’s dining room. Pretty good food actually in the officers’ dining room. Better than what the inmates were eating, although I guess that’s not surprising. Great desserts, I mean they had some of the best bakers in some of those units, making pies and cakes and all kinds of stuff.

But anyway, from time to time I saw all kinds of units.

RAYMOND: Can you describe what you saw at some of those places?

DOUGLAS BECKER: Well everything I saw, it was orderly and clean, and that maybe comes as a surprise, people have stereotypes, but it was. Most of those units were spotlessly clean. They had inmates to clean them and they used them. And the orderliness of it. When you have the big, long- Texas prisons were traditionally the telephone pole style, as they’d call it. A big central hall, and wings like this off, which there’s been some criticism of by some, that’s the way they were. So a big long hall, the inmates proceed down the hallway, there’s a yellow line close to each wall, and you’re going this way you stay between the yellow line and the wall, you’re going back, you’re doing the other thing. The entire middle part is open. There’s guards periodically, and it certainly creates an image of extreme orderliness. Same thing with the chow lines and dining hall lines and all of that stuff.

I still go over there and go to various of the units. Not as many as before, and it’s not that I don’t get inside, but I don’t get inside the same areas. I have been in private practice in medical areas, talked to medical people about a client I had. Of course mostly I’m just in the visiting area where the attorneys talk to their clients, because that’s all I am, a private attorney. I still get goose bumps when I go in there, and the whole procedure and checking of I.D.’s and security and all of that. And I guess that’s about it.

RAYMOND: When you say “over there,” I assume some of the time you’re talking about Huntsville or you’re talking about East Texas. Is that the case or have you been to other, now T.D.C.J., or T.D.C. units back then that were in other parts of the state?

DOUGLAS BECKER: Well let’s see I’ve been, there’s a lot of southern units around Rosharon, the Darrington Unit, Ramsey, and a couple more down there. There’s one in Sugarland, outside Houston. Then there’s a number in Huntsville, the Ellis Unit, I don’t think the Estelle was, the Ellis certainly was, the Walls, Goree, the Wynne Unit was there, and still is, so a bunch of them there. And then as far as- I don’t think I’ve ever been- now they have units in West Texas, I don’t think I’ve ever been ever to any of those. I’ve been to Gatesville and so mostly, well and then within fifty miles of Huntsville, there’s a number of other units I’ve been to. Been to Eastham, north of Huntsville, and I think just about all of the ones that existed in 1980 I’ve been to. And some of them multiple times. And the Ellis Unit, Oh my God how many times have I been there? Fifty I’m sure.

RAYMOND: In those visits did you notice differences among the units.

DOUGLAS BECKER: You know what? Not really. Not really, now physically some of them are a different. And some of them, just the way they were constructed, seem darker than some of the others. But as far as the demeanor of the inmates, and the orderliness, and all, no, not really. I guess at Walls, the only thing I might say, the Walls Unit seemed to be more relaxed, but that’s the pre-release unit, or it was at that time. And I guess I, that’s how I accounted for that. But nope, I would say fundamentally, and you’re talking about real differences in populations, too, unit to unit. Texas Monthly once had a cover article about the Ellis Unit, and they called it “Hard Time,” was the name of their article, because that at that time it was considered the toughest unit in T.D.C. in terms of severity of offenses the inmate population had committed. That changes around, from time to time. These units you’re talking about, twenty five hundred to four thousand inmates in one unit. That’s a lot. And I do think that as far, I think that the wardens in the units have a lot of effect on how well the units are run. And how well they’re run, I think means the inmates have, I know means the inmates have a perception that they’re being treated fairly. And that nothing bad, well it’s less likely in this unit than some others that something bad is going to happen to me that I didn’t deserve, that I’m going to have a vendetta against me or they’re going to accuse me of doing stuff that I didn’t do, even though you will never hear the end of those types of stories, from time to time, just overall I think the warden can have a good effect and just really influence things that way. I have clients now who are inmates, and they tell me that, “This warden is really good.” And what they also mean is, when you have a guard who says one thing and an inmate says another, is it one hundred per cent automatic that the inmate loses every time? Some places, and certainly in the past some units, inmates have that perception, and at other units, they’re going to have a perception at least that the administration is gonna have a concern about the truth, and about what actually happened, and about who was actually to blame.

So I think the wardens do have a tremendous impact on the inmates’ perceptions, and you want the inmates to perceive that there’s some kind of fairness that’s going on now. And I think that’s good, and some units can do that. At the same time, you know, the old T.D.C., I don’t know if you saw Texas Observer last week? The article on Daniel Johnson, who I represented for eleven years in a class action case against the Board of Pardons and Paroles, I visited him since then, still correspond with him regularly. I know him. And that just, the whole article, and I knew about that situation from Daniel. It was what he calls “the old T.D.C.” What I call the old T.D.C. is still there. The story was Daniel actually adopted, Daniel’s white, he adopted an African-American inmate much younger than him, that he had befriended, in a state district court, a state district judge approved the adoption and it was a father-son relationship. And it just infuriated T.D.C. They proceeded to sabotage the whole thing and transfer the son off the unit, and not apply the rules that apply to family members who are both incarcerated, to apply to this T.D.C. situation. There has been a civil rights lawsuit in Houston that challenges all that. It just seemed awfully small and petty, and without a penological justification for some of the things that have been done. I feel terrible for Daniel because I know him, and know how important all that was to him, and what it meant to him, and I’m thoroughly convinced that the whole thing, it was not just something they concocted. It was a very sincere situation that they developed into that was blessed by a state district judge and that ought to have been good enough for everybody, but apparently wasn’t.

RAYMOND: Thank you. I hear Maurice rustling with the tape, and I think we need to change...

CHAMMAH: Change the tape.

[Tape 3 Ends]
[Tape 4 Begins]

MR. DOUGLAS BECKER: I did participate I guess to some extent. Is that Steve Martin’s book?

RAYMOND: Steve Martin

MR. DOUGLAS BECKER: Yeah. Steve Martin used to be an associate in this firm.

RAYMOND: Oh.

MR. DOUGLAS BECKER: Back then. He’s a fascinating guy, too, you know, of course you know this. He started as a prison guard, and I still see Steve. What a remarkable character because he started as part of that culture, and now has been very successful as a consultant to prisons and penitentiaries. I don’t know it, it’s kind of like, sometimes you can be raised in a very racist type home, where your parents are very racist, and turn out to be just completely opposite of that. That happens. Some don’t, some do. So Steve kind of grew up in all that and then became something very different.

RAYMOND: Interesting. Doug I was kind of hearing two different things from you, so I want to ask you a little more about it. On the one hand you’re saying, and you said this, too, last week, or last whenever it was when we talked about D.A.’s and police officers, that the person at the top really sets the tone for what happens in things like abusive force, or just in the tone of a law enforcement agency. You said that about wardens as well. On the other hand, you also said you really didn’t detect major changes between the units, or among the units you visited at that time when you were among the Attorney General’s staff. And I’m wondering do you think that same kind of warden, or were those kinds of changes just not detectable on the level of visitors?

MR. DOUGLAS BECKER: Well perhaps I didn’t understand your question before, because, the reason I say that, when I was saying they all look about the same, I was talking about from a visual standpoint. Little more than visual. Can you sense a difference in the atmosphere when you walk through the door and walk through the prison? And I’m going to say, I still would say well no. They still look clean and orderly and everybody’s doing what they’re supposed to do and there’s not a riot going on right now. But that’s not to say that for the inmates living there every day, I mean I’m just walking through. I’m going to be there maybe four, five hours for what business I have and I’m going to be gone. For the inmates living there every day, I think there are huge differences. Those things were just never shown to me, or I never witnessed those things.

That’s not to say that there were not big differences in units. And I do think they come down from the top. I may have been answering your question too narrowly. I’ve never spent the night in a prison, never, well, probably have been to units on consecutive days when I stayed over night in a local La Quinta, watching cable TV with my feet propped up. Never spent an extended period of time, so I’m sure there are differences.

And inmates have told me that. Well not just inmates; prison officials told me that. They know that some of the units are better run than other units, and that can be, that has several levels there. Efficiency is one thing. But also the encouragement of the perception that okay if you’ve got to spend time, this is an okay time, an okay place to do your time. That doesn’t come out of thin air, and it probably doesn’t take too much. If there’s one guard who’s out of line, and that guard is canned, that has a huge effect on the inmates. God, somebody gives a damn. And this guy’s a jerk and overreacts and okay they got rid of him. Once they see that, that is a positive thing that, I don’t know if it lets them cut a little more slack to the next guy, but I think probably. They don’t think it’s going to be completely hopeless and if this guard mistreats them they can file an I-60 form about, and somebody will look into it, and maybe something will get done about it. And if not this time, then two or three times, so you don’t drown them in hopelessness. You give them some kind of feeling, I guess it’s a way of showing indirectly respect that you care enough about their welfare that if there is some guard, or employee or official that needs to be disciplined in some way or his conduct changed, you’re going to do it. And so I think that’s important.

RAYMOND: We talked a little bit ago, I asked you about what kinds of conditions, or things going on in the prison that you, plural here, you and the Attorney General’s office, believed were simply indefensible and told the prison folks that they needed to change. Overcrowding and use of force, and then these matter of degree things, like medical care and nutrition. Were there things at the time that the plaintiffs were alleging, or at the Fifth Circuit, that people were alleging, that you thought, even if they were true, were fine, were defensible policies and practices in the prison.

MR. DOUGLAS BECKER: From my own opinion?

RAYMOND: Yeah

MR. DOUGLAS BECKER: You mean from my own conclusions about things.

RAYMOND: At that time, as well as now, there might have been some changes?

MR. DOUGLAS BECKER: You know, I don’t remember. I guess my answer, the overcrowding was so easy. The use of force, inappropriate use of force went on, no doubt about those things. Gee the medical care was just terrible. That was a big issue in the case, just awful. And did I think it was bad? Heck yeah I thought it was bad. Everybody knew it was bad. For one thing they weren’t paying doctors enough to get good doctors. Unless you had one out of how ever many number of doctors there is that has social motivation to take this job and help these poor creatures, wouldn’t be many, because it wouldn’t be good. You got good schools and you got bad schools. You have the really great teachers volunteering for the terrible schools? A few maybe, but not very many, so we all knew that the medical care was not what it should be, and that it should be improved, and that it’d be difficult to do that and they’d have to spend more money, and you know T.D.C.’s defense on this is you know “we can only hire doctors that we have money to pay. They’re not going to work for nothing. We don’t create our budget. The State Legislature creates the budget.”

The Legislature has been extremely unkind to expenditures for the prisons, so they’ve got to operate within that budget, and so you know, they’re frustrated from that end, I mean again I don’t think there were any prison officials that were happy that inmates weren’t getting adequate medical care, that it was too hard to get them over to John Seely over in Galveston when they had serious medical problems and a lot of them died as a result, suffered needlessly as a result. I’m sure there was just a few sprinkled here and there and they’re just convicts and who cares if they suffer, but I will never say that was the prevailing point of view over there. That was just one of those things, yeah we need more doctors? Tell the legislature to give us more money and we’ll hire the doctors. What’re we supposed to do in the meantime?

And so there were, a number of the problems that were just caused from funding issues that they didn’t create. I guess the same is true of nutrition as well. T.D.C. was, boy, wasn’t totally self-sufficient in food, but they sure made a lot of efforts and the inmates were complaining, and the guards, too, about the amount of pork they had to eat. I had a lot of meals over there, you know entrée was greasy pork. I like greasy pork, so I might have got tired of it if I ate it four days out of five, and I guess the point I was making was that’s another- well I’m no nutritionist, you can probably tell from looking at me, but I’m sure that money and economics has something to do with good nutrition. I have an impression lousy food is cheaper, and so that’s what they were gonna tend to get.

So a lot of it was driven by economics, and it wasn’t like T.D.C.’s holding back the money and using it for the staff Christmas party. They never had a problem that way, to speak of, that I know of. They just didn’t have any money and that was something, that driving the overcrowding issue, had nothing to do with use of force, but it would have a lot to do with many of those other issues, medical, food, recreation. Would have nothing to do with at least letting them get out an hour a day, at minimum, that was one thing I think they had a problem with, you can have an exercise yard, but gee do you have a gymnasium with anything in it? Is your total recreation limited to one hour a day in the sunshine? Which, by the way, you take a poll of tax payers out there, and ask them “you want to spend money to have prisoners play basketball or lift weights or play volleyball or anything at all?” And it doesn’t surprise me if people say “heck no I don’t want to spend a nickel on those guys, let them stay in the yard and think about their crimes.” Well, there’s just a lot of people that feel that way.

RAYMOND: So, I’m just, and forgive me if I’m being a little pushy, I’m just trying to understand from the point of the view of the State there are issues that are true to one degree or another, but are not the result of deliberate prison policy so much as funding, then there are issues that at the trial and at the appellate level people, the State and the plaintiffs were arguing whether or not they were true, such as the building tenders system. Were there other issues at all that the State just said “T.D.C. does this, yes, and T.D.C. should have the right to do this,” or should be allowed to manage their affairs in such and such a way. Or was it all a matter of “they say this, we say that,” or funding.

MR. DOUGLAS BECKER: That’s a really good question. And you did kind of ask that before. And I am, honestly just trying to remember all of the issues. Now as a variation of that I’m sure that we argued that the issue at the courts would not be what’s good or bad. It would be what’s constitutionally required, because that’s what we’re talking about; Civil Rights Act and what the Constitution required. And Texas, or any state, could do anything it wanted with its prisons as long as it was above the bottom line required by the Constitution. And there were, I’m sure I remember that there were some areas, may have been medical, where we would compare ourselves to other state systems in some kind of objective manner, to show that we were okay. Because if you’re talking about cruel and unusual punishment under the Eighth Amendment, evolving standards of decency is something the Supreme Court has always said is important on the Eighth Amendment, something that was constitutional a hundred years ago may be unconstitutional now because standards of decency have evolved and changed. And so there were a lot of things, medical may have been one, I don’t remember, to tell you the truth, where it may not have been good, but it’s above the minimum that the Constitution requires. The Constitution requires that they have access to a doctor if they get sick. They have access to a doctor. They might have to wait longer than you’ve got to wait down in the emergency room at Brackenridge Hospital. But if you go to Brackenridge Hospital and you’re not bleeding to death, you might wait several hours on a bad day, the crowds are so bad, and nobody says that’s unconstitutional. And if the inmates have to do the same thing, that’s not going to violate any prevailing standard of decency.

And there was a lot of stuff I think like that. Trying to and not really thinking of an issue, an example I could say. I mean we do this, you’re darn right, and we have every right to do that. No, I don’t think, with use of force for example, there was ever any defense that “yeah we’ve got the right to rough these inmates up if they give us a hard time.” It was always a denial, if you could ever deny there had been some excessive use of force from time to time, but as far as it being systemic, there was a denial, that it was unconstitutional, and systemic violence that was being perpetrated on inmates, even though at some units there was. At some units there was. There were, even back in those days a couple of units, and a couple of wardens, that if they were off the record and you mentioned their names to prison wardens, there would be some snickering “yeah well we know what goes on down there.” And those other people would mainly laugh about it, but they weren’t proud of it. They didn’t think it was a good thing. They didn’t defend it.

Then again, they didn’t take an active role that I know of to end it, but then again I guess that’s not their place, is it? Those individual units and wardens have longtime tenure. More so than now. They move around more now. Those units were like fiefdoms. You could even think of old England and the serfs, with the inmates being the serfs. Big physical area, you’ve got croplands, and some of them have industrial and production type places, manufacturing in some cases. And you’ve got three or four thousand inmates, and a thousand employees, or however many you had, and the warden was king of all that. And that’s a lot different now.

RAYMOND: It sounds from what you’re describing, let me just try this out and see, that there’s a relatively big, let’s call, cultural difference between the people who work for the Attorney General’s office and the people who work for the prison system. Is that what you’re saying? Or?

MR. DOUGLAS BECKER: Well there was, yeah. I mean when the lawyers got together we made fun of our clients sometimes, yeah. And I heard funny stories and yeah I mean your normal prison guard does not have a college degree and is not all that educated. Tends to come from working class backgrounds. And lawyers have college degrees and beyond, and so they would. I remember one of my lawyers, it was a use of force case, and she was talking to the guard, who I think was a well-known guard, had been around for a while, great big beefy guy. She was asking, she told me this story, “Well what did he do to this inmate” he beat him up. The inmate said “blah blah blah” and she described to me that he said “no ma’am.” I didn’t beat that inmate up. I didn’t want to beat him up. All I wanted to do was come in and talk to the boy” [making a gesture of hand on throat]. She said it kind of gave her the chills. There was kind of an admission there, wasn’t there, but still insisting by the old standards that he hadn’t done anything out of line, anything that wasn’t indicated, and that whatever happened the inmate had it coming to him. Now we took it as that.

RAYMOND: And the reason why I asked that question was because you’re very clear that no one on the legal teams had ever said “yes we do this and darn right we do and we have a right to.” But it does sound like that is coming from the prison system. Certain people.

MR. DOUGLAS BECKER: Oh absolutely. Not only a right, much more than that, a necessity. That in order to keep the place functioning and not blowing up that they needed to do that. That’s what many of them felt. That’s all they knew.

RAYMOND: So did you, just to push a little, did you feel as lawyers, either your coworkers who were working on the trial side or you and the appellate team. Did you feel the same philosophy as the plaintiff’s attorney, or any kind of common cause with them? Or was it-?

MR. DOUGLAS BECKER: That varied. That varied a lot. You had all of the Attorney General’s office, the whole spectrum of political persuasion. Now of course I was there a long time ago. We had a democratic- you may be too young to recall that there were times when we had statewide Democratic office holders, but we did. We had three Attorneys Generals. We had two, well, Jim Mattox was an unabashed liberal, Mark White was much more conservative, and John Hill, I would kind of call him a liberal myself, although were he here he might not agree with that. And that filtered down to the personnel they had working for them. I don’t know how it happened, we were just soldiers on the line, but it did happen. There are a lot more progressive people in higher up positions with Jim Mattox and with John Hill than I would say there were with Mark White. He was more conservative, although quite moderate by today’s standards. That’s for sure.

And I knew his staff people, thought the world of them then and still do, still friends with some of Mark White’s people. John Fainter is one of them, who was his first assistant and John was no liberal, but I thought had really good judgment about things, and really smart, very savvy guy and I thought he was really great, and still think that.

But as far as the troops on the line, oh they varied all over the place. Don’t forget despite my personal opposition to the death penalty, I had no problem arguing one, two death penalty cases in the Supreme Court on behalf of the State. So, I don’t know, it was just my job.

RAYMOND: And you’ve been very clear today and last time we talked about your role, which is that if you knew something was a lie you wouldn’t advance that position, or advance those facts, but that you saw your job as to advocate for your client as well as you could within the bounds of the law and ethics, but that you did not see it as your role to, whether in a death penalty case or other matters, to investigate, independent investigation to figure out whether this was a true thing or not. But it seems like, from what you’re saying about the Attorney General’s office, when you’re dealing with use of force allegations that perhaps something else was going on.

MR. DOUGLAS BECKER: Oh yeah well that’s the truth.

RAYMOND: Could you talk about that?

MR. DOUGLAS BECKER: Sure, but that was imposed. Now in the olden days. Before Ruiz let’s say, if an assistant A.G. became thoroughly convinced that improper use of force had occurred, I guess the way that would be pitched is “we are going to lose this case. Our story is not going to stand up. We’re gonna get hammered,” and “this is time to make a settlement” sort of thing. Although it’s really remarkable, I want to say before Ruiz is it correct that the Attorney General never settled a lawsuit? It may be shocking to you, but from my perspective that was the way it was. Never, never offer a nickel, a dime, a penny to settle a case. Fight to the death. And that most definitely changed, well which it should change. It’s no different from other lawsuits. There are some that should be fought and some that should be settled, but that was the way it was for the longest time, and that was because it was so rare that we would have a loss. In fact I recall one of my lawyers, brilliant attorney who’s still very active, Renea Hicks. Renea is an old friend of mine, played softball with him for years. He was my shortstop. What a great ballplayer, by the way. Also a great attorney.

Renea came back from a trial in Houston before the court, and I don’t remember what the issue was. Could have been use of force. I don’t even remember. It was some issue. He lost. And we were all shocked. That was the first case as far as I knew we’d ever lost at trial. First civil rights case. We’re always winning.

And so it was, it’s hard to believe and think back and look back at all that and believe, but that’s the way that it was. And I can tell you I had, it was not a civil rights case, it was a habeas corpus case. And it was the Calvin Sellars case out of Houston, and I had the task- I didn’t try the case. I argued on appeal to the Fifth Circuit. Calvin Sellars was the man who testified that when he confessed he was on the rear back floorboard of a police car with a gun to his head, when he signed the confession, with the cop telling him, “Sign this or you’ll never see the lights of Houston again.” That testimony was believed by a Houston federal judge and that was what was on appeal. His lawyer was Charles Alan Wright. And Charles Alan Wright was, is, as far as a legal mind he possessed compared to me, would be like comparing an elephant to a flea. And it was, on the day before oral argument I prepared a lot for this, and I’m sittin’ there goin’, “I just don’t see this appeal.”

And it was the only time I ever did it; I called – it was a noteworthy case- I called the Attorney General on the phone. It was John Hill. And I said “General, this is your man Doug up in Dallas”--they were arguing in Dallas-- “and I hate to be bothering you with this, but you know this Calvin Sellars case, we’re just gonna get hammered on this case. We’re not going to slip anything by anybody. The guy’s got Charles Alan Wright for a lawyer, and we just can’t, given the fact-findings and the judge. And it wasn’t- remember, I was not motivated by “yes this happened and we shouldn’t be defending it.” The judge made a fact-finding based on sworn evidence motivated me. How the heck was I going to get that overturned? You have to show that it’s so against the great weight and preponderance, all the evidence that it’s pretty near outrageous to think that the judge could have found this with the weight of all the evidence. We didn’t have anything close to that.

And John Hill listens to all this and he says “Well, Doug” he says “you know I remember the first time I went in there to try a jury case.”

I thought, “Oh boy, where is this going?”

He says, “I walked in there. It was my first case and we did not have a very good case, and I wanted to pull out of the whole thing, and I walked in there though and there was the judge and there was the jury and there were the witnesses and there the whole thing was, it was ready to go, and we just had to do it. There are some things we just have to do.”

I said “All right John. I’ll do it. I asked and you gave me your answer.”

And I said, “By the way, how’d your jury trial come out.”

He said, “We got the shit kicked out of us.”

That’s not the point. Okay. And then the next morning, all that happened, the next morning we go in for oral argument and I’m the appellant’s lawyer, and the court’s giving me a hard time, and Charles Alan Wright stands up and I don’t know if you ever saw him. Oh he’s six two, always wore a three-piece suit, dressed perfectly, athletic frame, steely eyes, I mean he was compelling. I took one or two courses from him in law school. In fact I got the highest grade in his constitutional law class, so I was his T.Q., Teaching Quizmaster, the following year. Worked for him, did things for him. So here he was. He starts out, of course always the same way in class, one index card whenever he went to the podium.

And he starts arguing, “Your Honors. At first blush some of Mr. Becker’s arguments may have some superficial appeal.” And he kinds of nods his head like this [nods up and down] and the three circuit judges start nodding their heads like this.

“But your Honors, they will not withstand proper analysis,” and he shakes his head and the three judges start shaking their heads. This is not going to be good. And the rest of the argument went about like that and it took them, I can’t remember if it was forty-eight hours or seventy-two hours to issue an opinion affirming what had been done, which was about the quickest I had ever seen by months. Anyway, that’s my John Hill story and my Charles Alan Wright story.

RAYMOND: Can I ask how you both are doing before we move on?

CHAMMAH: Good.

RAYMOND: Good?

MR. DOUGLAS BECKER: I’m fine. How are we doing on time? Oh you know what, do we have time again?