States Play Tug of War Over Death-Penalty Cases

THE ever-contentious issue of capital punishment has turned into a duel between the states.

In one case, Gov. David Walters (D) of Oklahoma accused New York's chief executive, fellow Democrat Mario Cuomo, of letting his objections to the death penalty get in the way of justice in the Sooner State. In another case, Vermont Gov. Howard Dean (D) called on Texas counterpart Ann Richards (D) to commute the death sentence of Robert Drew, a Vermonter convicted of murdering a teenager who picked him up hitchhiking.

This second controversy is the more far-reaching because it involves a fundamental concern: the possibility of executing an innocent person. That concern was heightened by the Supreme Court's January decision in the case of Leonel Herrera, a Texan who claimed that new evidence showed that his then-dead brother had committed the murder. Texas law sets a tight limit on time allowed after sentencing for introduction of new evidence.

The evidence Mr. Drew's lawyers want considered is the recanted testimony of an alleged accomplice who had testified against their client. Ernest Puralewski reversed his testimony 100 days after the trial's end. Texas's limit on introduction of new evidence is 30 days.

In rejecting Mr. Herrera's plea for a new trial, the high court stressed that Texas had a procedure for handling assertions of innocence - an appeal for executive clemency. In Texas, however, the governor can grant clemency only after being given a green light from the state's Board of Pardons and Parole, a loosely constructed body that gets faxed death-row appeals and does not formally meet to weigh evidence.

When it became known in Vermont that one of its own was on death row in Texas, many people ``suddenly took a new and thoughtful interest in capital punishment,'' says Michael Mello, a Vermont Law School professor in South Royalton. Vermont, like New York, has no death penalty. In addition to Mr. Dean's appeal, a number of state legislators have vowed to create an economic boycott of Texas.

``People tend to think that, the justice system's flaws aside, it at least manages to recognize who's guilty and who's not,'' Mr. Mello says. But a decade of tracking and defending death-penalty cases has convinced him otherwise. ``My single biggest surprise,'' he says, ``has been how many innocent people end up on death row.''

Texas is a magnet for such concerns. It is a leader in executions, accounting for nearly half of the 30 that have occurred nationally this year. The limit on hearing new evidence is made harsher in Texas because, unlike other states with limits, alternative ways of filing an application for relief don't exist, says Mandy Welch, director of the Texas Resource Center, which finds legal representation for death-row defendants.

Also, Texas has no statewide public-defender program to offer counsel to capital-case defendants, Ms. Welch says. The state relies on a county-court appointment system, and ``there's no vehicle for ensuring that qualified lawyers will be adequately compensated,'' she adds.

But Roe Wilson, an assistant district attorney in Harris County where Drew was tried, cautions that these concerns should not overshadow facts in Drew's case. ``If someone wants to protest because of the death penalty, that's their right. But let's not make things up and say he didn't do it,'' Ms. Wilson says.

She points to ``hard forensic evidence'' presented in court, such as the victim's blood-stained jacket worn by Drew when he was arrested for speeding in the victim's car.

Beyond that, Wilson says, a teenager in the car with the murder victim has stood by his testimony.

The recanted testimony by Mr. Puralewski, who pleaded guilty to a murder charge not carrying the death penalty and is likely to get paroled at some point, is not unusual or impressive, Wilson says. The Texas Court of Criminal Appeals, which heard Drew's appeal in 1987 and broke its 30-day limitation to weigh the recanted testimony, apparently agreed.

Since the appeal, Drew's lawyers have tried for clemency, failed, then filed a civil suit against the Board of Pardons and Parole to try to force a formal hearing on the new evidence. That suit is under appeal in the state's Third Court of Appeals, and Drew's execution is enjoined until the appeal is heard.

This has caused something of a crisis in Texas courts, since the Court of Criminal Appeals, which has ruled on Drew's case, is higher than the Third Court. Wilson and other prosecutors are hoping that the court now hearing the appeal will be instructed to vacate its order staying the execution.

The New York-Oklahoma controversy revolves around Thomas Grasso, serving a 20-years-to-life sentence for murder in Mr. Cuomo's state when Oklahoma officials asked if they could take custody of him to try him for another murder.

Under the Interstate Agreement on Detainers, Oklahoma was given temporary custody. But when that state's court handed down a death sentence, Mr. Walters balked at returning the man to New York. Cuomo, however, stood by his state's right to reclaim custody.

The issues here, says Marty Rosenbaum, a lawyer with the public defender's office in West Palm Beach, Fla., who has closely followed the case, are much narrower than the two governors' differences over the death penalty.

``In my view,'' he says, ``the technical legal issues are the only issues in this case.'' The interstate agreement on criminals is a useful instrument that ought to be honored, he says. ``To some extent, the whole federal system rests on this interstate comity and commerce,'' he argues. ``And if it breaks down here, where does it end?''