Law & Disorder

by Douglas, John

  “When he did that to her, I personally think he was thinking of me—that he remembered after he choked me that time, I told him, ‘If you ever do it again, you’d better kill me, because if you don’t, I’m going to kill you!’

  “And that night he killed her, he knew he couldn’t kill me because he’d definitely be caught.” She added wistfully and sadly, “I looked at pictures of her. She was beautiful.”

  I asked Lynne if there was anything she’d like us to tell the Collinses when we next spoke to them.

  “Let them know that I was a victim, too,” she said with mounting emotion, “but that I’m okay now and living each day the way God wants me to. And that I can’t stop thinking about their daughter.”

  People tend to forget that every homicide leaves many victims on many different levels. Sedley Alley’s monstrosity took Suzanne Collins’s life and ruined Lynne’s.

  Lynne S. firmly believed that Suzanne died in her place. I agree. Though, as we’ve noted, she was a victim, too, being saved by someone else’s death is a heavy burden to have to carry. But it is one that Lynne hopes and prays has given Suzanne a special place in heaven.

  CHAPTER 13

  WHO SHOULD BE EXECUTED?

  In previous chapters, we’ve described the capital punishment process from the defendant’s perspective and specifically Cameron Todd Willingham’s futile quest to achieve justice. So how, justifiably, can we support a protracted appeals process in one case and condemn it in another?

  The fact is that we can’t and don’t.

  It is legitimate and necessary to go through all reasonable appeals—to examine all of the facts and procedures and effectively deal with all of the issues of proper jurisprudence and the possibility of actual innocence. If any evidence comes up during that time, as it did in the Willingham case, it should be addressed and acted upon. That should be a no-brainer, even though it doesn’t always happen that way. But an endless retrying of every element, and then appeal of each of those hearings, is absurd, denies justice and makes a mockery of the system.

  The flaw in the Sedley Alley case was that it dragged on too darn long for any rational reason. The flaw in the Cameron Todd Willingham case was that when evidence of actual innocence surfaced, it was ignored.

  Ah, but if Willingham had been executed earlier, say three or four years after his conviction, Dr. Gerald Hurst’s report never would have been written. That’s true. And what about all these other cases where DNA had exonerated prisoners sitting on death row awaiting execution? That’s a good point, too. Some will argue that had those prisoners not been condemned to death, no one would have bothered to review their cases and get them set free. But that’s a pretty lame argument for keeping the death penalty.

  Both the Willingham and Alley cases do get to the heart of my personal take on the proper uses of the death penalty. In other words, who should be executed and who should not?

  The arguments for and against the death penalty are complex and diverse. There is a charge that it is imposed disproportionately upon minorities and the poor, who have little standing in society and can’t afford the best attorneys. And there is merit in this argument.

  There is the observation that the United States is one of the few civilized nations that still maintains capital punishment. This is also true, but irrelevant, I think. We are also one of the few civilized nations that still permit nearly limitless access to handguns. We can argue the meaning and relative merits of the Second Amendment; but as a career law officer and gun owner, I’m here to tell you that if you allow handguns, you are going to have more murders and more accidental deaths—a lot more. During the time we were writing this book, there were mass shootings in Arizona, Colorado and Wisconsin, to name but a few.

  Easy access to guns is not the only reason we have so many more murders than other advanced countries. The reasons we do are as complex and disputed as the death penalty itself, and involve our relative freedom over many other societies, the size and diversity of our population, and the legacy of our often ugly history of race relations. But I think an argument can be made that a nation that suffers more violent crime, proportionately, than other seemingly similar nations has its own particular needs regarding criminal justice.

  So having acknowledged these two factors, what are, and should be, the real dynamics of the situation?

  First, while I certainly don’t condone the fact that the death penalty does seem to be arbitrarily applied, we consider that an impetus for reform in the mode of fairer application rather than a reason for eliminating it altogether.

  Second, even if one individual is sentenced to death and a second person is not for the same or a similar crime, that fact does not imply that the first individual did not deserve the sentence.

  Now, let’s look at who—and the type of crime—is actually deserving of that kind of sentence.

  If you believe, through unshakeable religious or ethical belief, that the state never has a right to take a human life under any circumstances, including war or any instances short of immediate self-defense, then I am not going to convince you otherwise. I think there are some practical problems with this point of view, but I respect you for it if you are completely consistent, like ethical vegetarians who also don’t wear leather belts and leather shoes. Surveys and polls repeatedly show that this is not, however, a majority opinion; most people do support capital punishment in certain circumstances. So what we want to do here is sort out a few of the important considerations in application of the death penalty and try to figure out if it does, in fact, serve any useful moral or societal purpose.

  We have examined cases in the two states with the greatest number of executions since the 1976 U.S. Supreme Court decision: Texas and Virginia. The next two in the lineup are Oklahoma and Florida.

  Before his three distinguished terms as a United States senator, Democrat Bob Graham served two terms as the governor of Florida, from 1979 to 1987. A Harvard Law School graduate and highly popular politician, considered a moderate to liberal and widely respected by members of both parties in his home state and on Capitol Hill, Graham has supported capital punishment since he first had to put his vote on the line as a member of the Florida Legislature. But his specific views on the death penalty are instructive.

  More than any other elected official, a governor in one of the thirty-four states with capital punishment on its books has to think about this on a personal level. In most of those states, the governor has the final word on whether a condemned prisoner lives or dies. Most of them face this responsibility with utmost seriousness, and Bob Graham, a deeply moral individual, is a prime example.

  During his two terms in the Tallahassee governor’s mansion, Graham was presented with scores of death warrants, of which he signed all but one. We asked him how many of those he considered not signing.

  “Every one,” he replied matter-of-factly, explaining that he took each case individually and seriously. “In order for me to not sign a death warrant, there would have had to be some flaw in the long process of reviews. By the time a person gets to the gubernatorial level, they have been through a very elaborate process. Had a set of facts come before me of actual innocence, I would have acted.”

  This did not mean an execution was carried out for each of those orders, however. By way of example, Graham explained, “I signed Ted Bundy’s original death warrant. But he was not executed on my watch. In fact, I can’t think of a single instance in which a first death warrant had been carried out. It would usually go on for years.”

  Graham has no moral qualms about the death penalty in the proper circumstances, but he believes the extended time leading to most executions “becomes a quagmire of process.”

  He notes that “the system is designed to protect the innocent. That builds in a lot of checks to protect the guilty, so sometimes you have the issue of executing a fundamentally different person than you started with.”

  This issue that former Governor Graham points out has come u
p several times in my career. In early 1998, the state of Texas prepared to execute Karla Faye Tucker for the 1983 murders of an acquaintance, Jerry Lynn Dean, and another woman named Deborah Thornton. There was a wave of international protest as the process went forward. The situation was unusual in several respects. First, it was unusual for a woman to be facing capital punishment, and this was to be the first execution of a woman in Texas since 1863. Second, more than the traditional anti–death penalty crowd was lobbying for a commutation of her sentence. Not only were the pope and several Nobel Peace Prize laureates speaking out, but also such hard-line conservatives as Speaker of the House Newt Gingrich and televangelist Pat Robertson pled for her life on the grounds that she had found God and converted to Christianity during her long stay on death row.

  A fair number of reporters and other media representatives approached me for my reaction; and to each, I said some version of the following: “I would hope in all those years in prison with nothing else to do that at least she found God and some sense of morality, and I’m happy that she did. But that doesn’t change the law or the legal and moral obligation to carry out the jury’s verdict.”

  I went on to explain that I feel it is always better to go to your death having made peace with your God or, for nonbelievers, with your own moral code. But the fact that the process dragged on for so long did not erase the crime, which in Ms. Tucker’s case involved hacking two innocent people to death with a pickax when an attempted robbery went bad. If she had accepted God and truly felt sorry for her actions—and I am not questioning that she had—she should have been willing to pay for them on earth with her own life and face perfect justice and ultimate redemption in whatever existence may follow. Her final words suggest that she had embraced this idea, and I therefore have no problem praying for her immortal soul.

  During the time he spent photographing the Texas death row, Ken Light recorded the final hours of Richard Beavers, before his execution. “Beavers had been a heroin addict,” Ken related. “He had robbed his next-door neighbors in Houston and had taken them to the ATM and had them withdraw money and then shot them point-blank in the head. One of them died. The other survived and testified against him. He had been convinced by the fundamentalist preachers who came onto the row that if he gave up his appeal that he would go to heaven. The other inmates said, ‘Oh, he was just tired of being here so long.’ They were really pissed off because they felt that in giving up his appeal, that they were all being jeopardized—that you have to fight. You just can’t give up.”

  This mirrors the case of Gary Mark Gilmore in Utah, the first individual executed in the United States after the Supreme Court upheld new death penalty statutes in 1976. This was a case made famous by Norman Mailer’s Pulitzer Prize–winning epic The Executioner’s Song. Like Beavers almost twenty years later, Gilmore accepted his sentence and successfully prevented would-be supporters from keeping him from the execution chamber.

  In both cases, it was as if the admitted killer had committed some further outrage by not fighting his sentence. To me, this is indicative of some screwed-up attitudes and values regarding the death penalty.

  But it leads to an even more fundamental question. Is Karla Faye Tucker, despite the brutality of her crime, the kind of killer who should be executed?

  Bob Graham would say, not necessarily.

  “I’m less of a punishment person than I am a deterrent person,” he explains. “The types of events that lead to the death penalty should be those that have the capacity to deter. For example, the death penalty doesn’t work well in domestic cases because they’re so highly emotional that the killer isn’t likely to be deterred by the threat of punishment if he’s caught.”

  One could argue the same thing for an offender like Tucker, who was hanging with a tough biker crowd and doing heavy drugs when she and her boyfriend went to Dean’s apartment. While I don’t consider her sentence inappropriate for what she did, I don’t know that anyone was deterred from committing another crime by her well-publicized execution. And in my opinion, had she received a life sentence and spent her time in jail spiritually ministering to other inmates, that alternative punishment would have been okay, too.

  But what if, after the trial and verdict, she or Richard Beavers had continued professing innocence, as Cameron Todd Willingham and Roger Keith Coleman did? It wouldn’t be quite the same—they would have had to claim a mistaken ID and a strong alibi for the time and place, but let’s say there was some doubt about their guilt, which there wasn’t.

  Then I would not have favored executing them. I wouldn’t have taken the small chance on being wrong.

  For sincere supporters and opponents of the death penalty alike, the one searing commonality should be absolute revulsion at the prospect of executing an innocent human being. As we were writing this book, the case of Troy Anthony Davis in Georgia was playing out its final act.

  On the night of August 19, 1989, police officer Mark MacPhail was moonlighting as a security guard for a Burger King restaurant in Savannah. Spotting a mugging under way in the parking lot, MacPhail did what any dedicated cop would do, whether he was on duty or not. He rushed outside to aid the victim and apprehend the attacker. In the ensuing melee, MacPhail was fatally shot, and seven eyewitnesses identified Davis as the man they saw standing over the fallen officer and shooting him before fleeing the scene. There was little physical evidence and the murder weapon was not recovered. Davis admitted being at the scene, but he denied that he was the gunman. Two other witnesses contradicted this, stating Davis had admitting the killing to them. He was convicted and sentenced to death in 1991.

  Though Davis was an African American, it’s doubtful race played a significant role in the verdict or sentence. The jury was mixed: seven black and five white members.

  For two decades, in a manner similar to what we have already noted, the case wended its way through the appeals process, including three encounters with the United States Supreme Court, the final one as a last-ditch effort to avoid execution. During that time, a number of witnesses recanted either all or part of their testimony, claiming in some instances that they had been mistaken, and in others that police had coerced or pressured their responses. During an August 2009 review, the U.S. Supreme Court granted a stay of execution on the basis of a “substantial risk of putting an innocent man to death” and directed the U.S. District Court in Savannah to review the case in an evidentiary hearing. Unlike his original trial, this time Davis opted not to take the stand in his own defense. Nor did his attorneys call two of the recanting witnesses or the man the defense claimed was the actual shooter.

  In a 172-page ruling released in August 2010, Chief Judge William T. Moore upheld the trial court verdict and found no compelling evidence of actual innocence: Ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains largely intact, and the new evidence is largely not credible or lacking in probative value, Moore wrote.

  That was not enough for some observers. Like many defendants facing the ultimate sanction, Davis garnered a number of high-power sympathizers, including former president Jimmy Carter, my former boss ex–FBI director and federal district court judge William Sessions and former Georgia Republican congressman and U.S. Attorney Robert L. Barr Jr. I don’t think anyone would accuse either Judge Sessions or Congressman Barr of being soft on crime.

  In a letter to the Georgia State Board of Pardons and Paroles partially reprinted in the Washington Post, Barr wrote that while he supported capital punishment, that support was based on “assurances of fundamental fairness” and “accuracy.” He didn’t think those assurances had been present for Troy Davis.

  Davis, by then forty-two years of age, was executed by lethal injection on September 21, 2011. His last words were a profession of his innocence.

  It is not my intention here to second-guess the trial jury or Judge Moore’s obviously detaile
d and careful review of the case. But this and other capital cases of this nature trouble me deeply. While the evidence in the case looks pretty good, no one seems absolutely convinced of his guilt. I know “absolute” is often a just-about impossible standard; but if we’re going to take someone’s life for having taken someone else’s life, we’d better be pretty damn sure.

  So other than the defendant’s ongoing claim of innocence, what is it about this kind of case that makes me squeamish about the death penalty?

  First, it’s a one-off, not part of a pattern or spree, which makes it difficult to draw connections to previous behavior in support of motive or tendency to violence.

  Second, it’s a felony murder—that is, a killing perpetrated during the commission of another crime. Most felony murders are spontaneous reactions to immediate situations rather than planned events. While I have no beef with the principle that someone who takes a life while perpetrating another crime is just as culpable as someone who plans out a cold-blooded murder in advance, in actual practice these are often difficult situations to sort out. In my investigative experience, I’ve run up against such questions as: What really happened? Did the gun go off accidentally during a fight or melee? Who was the actual triggerman?

  Felony murders tend to happen very fast, so even if there are eyewitnesses, they can’t always tell exactly what they saw. The most compelling felony murders are often the ones where a firearm found in the suspect’s possession matches up to the ballistics on the bullet or bullets taken from the victim’s body. But that was not the case with Davis.

  In December 2011, Michael Morton was exonerated of the 1986 beating death of his wife, Christine, in Austin, Texas, after almost twenty-five years in prison. DNA testing ultimately proved that Mark Norwood, a convicted felon with a long criminal history, was the actual killer. Though it was the DNA that proved exculpatory, it was the defense’s discovery of long-suppressed investigative evidence that drove the reversal. Barry Scheck’s Innocence Project petitioned for a court of inquiry to determine whether the prosecution had unlawfully suppressed the evidence at the original trial.