Less than a week after Bush's announcement, the Texas attorney general's office was in New Orleans trying to convince a federal appeals court that Calvin Burdine had received his full day in court and adequate legal representation despite the fact that Burdine's lawyer slept through major portions of his murder trial. "He must show harm," the state's deputy solicitor general told the judge. "Burdine has not done that." There was, however, the small matter of Burdine's death sentence. ("But other than that, Mrs. Lincoln, how did you enjoy the play?")

Bush's decision in the McGinn case has been widely seen as an astute move by the presumptive GOP presidential nominee to moderate a perception that he may be too zealous about executing people. "By granting a reprieve to a convicted murderer," a Time magazine headline opined, "Bush highlights the first part of compassionate conservative."

Because Bush had signed off on 131 executions without granting a single reprieve, his action on McGinn was a man-bites-dog novelty story deserving the full-blown front page coverage it received. Whether or not this constitutes evidence of "compassion," it begs the question of why 131 earlier cases were so undeserving. And the answer speaks volumes about Bush's notion of justice as well as the way the Texas criminal justice system is administered.

On its face, the McGinn case was an easy and, some would argue, safe call. McGinn was convicted of the 1993 rape and ax murder of his 12-year-old stepdaughter. At the time of his trial, a sophisticated DNA test that could positively determine if semen and pubic hair taken from the victim were McGinn's was not yet available. McGinn says the test, now available, will prove he was innocent. All Bush has done is stay the execution so that the science can be performed. If the test shows McGinn was not the rapist, his lawyers will seek to have his conviction overturned. If the test shows McGinn was the rapist, he will die and Bush will be able to say he bent over backwards to insure that justice prevailed.

"If there is any doubt, any outstanding evidence that exonerates him of the rape, we ought to look at it," Bush said in granting McGinn's reprieve. Sounds reasonable enough. But there have been numerous cases since Bush took office in which the doubts raised by individuals selected for execution were far more serious than those of McGinn.

Consider, for example, Betty Lou Beets, the 62-year-old grandmother executed last February. Like McGinn, Beets was eligible for a death sentence under Texas law because she was convicted not only of murder but of aggravated murder. In McGinn's case the aggravating factor was rape. In Beets' case it was the state's claim that she killed her husband in order to recover his insurance and pension benefits. Without the aggravation, neither McGinn nor Beets could legally be condemned to death.

The difference between the two cases is that McGinn's alleged rape is now easily tested with DNA. Beets, on the other hand, could not give the governor the near-absolute certainty he demands in granting a reprieve. Beets was almost certainly guilty of murdering her fifth husband and burying him under a little wishing well at the front of her mobile home near Gun Barrel, Texas. But the evidence that Beets was not guilty of capital murder -- a murder that qualifies for a death sentence -- was stunning.

Beets' attorney, E. Ray Andrews (who later served a three-year federal prison sentence for soliciting a bribe while serving as district attorney in another murder case), never told the jury that Beets didn't even know about the insurance policy on her husband at the time he was murdered. She learned of it more than a year later thanks to Andrew himself. Why would an attorney withhold such critical evidence from a jury? Who knows. But Andrews had obtained the literary and movie rights to Beets' life story in lieu of payment for defending her. Had he revealed her ignorance of the insurance policy, he would have had to withdraw from the case and testify on her behalf. That would have also meant losing lucrative rights to Beets' story -- and, perhaps, a better ending for the movie.

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