Anatomy of Injustice

by Raymond Bonner

  Executions rose during the Depression, reached a one-year record of 153 in 1947, and then began to taper off as the abolition movement gathered steam, focused now in California and with an assist from Hollywood. Two death row inmates at San Quentin, Barbara Graham and Caryl Chessman, became household names. Graham was a petty criminal, prostitute, and drug addict who was convicted, along with two male friends, of murdering a sixty-four-year-old widow in the course of a robbery; she was put to death in the gas chamber in 1955, two weeks shy of her thirty-second birthday. A movie was made of her case, I Want to Live!, with Susan Hayward playing Graham, for which she won an Oscar as best actress. One critic called it a “relentless indictment of capital punishment,” while another described it as “a dramatic and eloquent piece of propaganda for the abolition of the death penalty.”

  Chessman acquired his fame and his role as a cause célèbre for the anti–death penalty movement from his own writings—four books while he was on death row, including Cell 2455, Death Row. He never killed anyone and was sentenced to death for a string of assaults on young women on Los Angeles freeways. He earned the sobriquet “Red Light Bandit” for his modus operandi: following young women drivers, he would flash a red light; when they pulled over, he would rob and sometimes rape them. He represented himself at trial and while in prison prepared appeals himself, which earned him several stays of execution. His case attracted international attention, with Pope John XXIII among those calling for Chessman’s life to be spared. California governor Edmund G. “Pat” Brown was a devout Roman Catholic, and opposed to the death penalty, but the California legislature rejected a law to abolish the death penalty, and with polls showing that Californians strongly supported Chessman’s execution (54 percent to 33 percent), Brown let Chessman go to the gas chamber on May 2, 1960. But the anti–death penalty movement gathered momentum, and a Gallup poll in 1966 found that only 32 percent of Americans supported capital punishment. Support has never been lower, before or since.

  Nearly half the individuals being executed were black (even though they made up only some 13 percent of the population), and lawyers at the NAACP Legal Defense and Educational Fund (LDF) were methodically chipping away at capital punishment. Under the direction of two brilliant lawyers, Jack Greenberg and Anthony Amsterdam, the LDF began to lodge appeals in every death sentence case throughout the land. The result was a de facto moratorium. There was only one execution in 1966; there were two in 1967. State court judges waited to see what the Supreme Court would ultimately say. The answer came in 1972.

  Three cases reached the court, those of Lucious Jackson Jr., a twenty-one-year-old black man who raped a white woman, holding scissors against her neck, after escaping from prison; Elmer Branch, a black man of “dull normal intelligence” who raped a sixty-five-year-old white widow in Texas; and William Henry Furman, a twenty-six-year-old black man who murdered a father of five during a botched burglary. Furman had a history of mental problems and was deemed by a state psychiatrist to be mentally incapable of assisting in his own defense; his trial had lasted one day.

  The question before the court was limited: Is the imposition and carrying out of the death penalty in these cases cruel and unusual punishment in violation of the Eighth Amendment to the Constitution? The amendment was adopted verbatim by the Founding Fathers from the English Bill of Rights, and it is only sixteen words long: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

  The court had rarely had to consider the clause, and when it did, the issue focused on the method of execution. In 1878, in Wilkerson v. Utah, the court upheld execution by firing squad. Twelve years later, in In re Kemmler, it upheld the electric chair. One of the more notorious cases to reach the court involved efforts by Louisiana to execute sixteen-year-old Willie Francis for murder. There was no physical evidence linking him to the crime, but he allegedly confessed. On the day set for his execution, he was strapped into the electric chair. The first jolt didn’t kill him. The executioner upped the voltage; that also failed to kill him. He was led back to his cell. Appeals followed. The court upheld the right of the state to try again. While what the state was doing was “hardly defensible,” Justice Felix Frankfurter wrote, “It is not so offensive to make one puke—it does not shock my conscience.” Though he was “strongly against capital punishment,” he said that it was a matter for state legislatures, not the Supreme Court.

  Those three cases largely represented the state of the law when Furman v. Georgia reached the court in 1971. In Furman, the issue wasn’t the method of execution, but execution per se—was it proscribed by the Eighth Amendment? By a vote of 5–4, the court overturned the sentences.

  But the decision was far more complex than it appeared. For starters, the court announced its decision in a very short, unsigned per curiam opinion, something extremely rare. It reflected that the justices were as divided and uncertain on capital punishment as was the general public. Each of the justices wrote a separate opinion, the total coming to more than two hundred pages, one of the longest documents ever produced by the Supreme Court.

  Only Justices Thurgood Marshall and William J. Brennan Jr. declared categorically that the death penalty was unconstitutional. “The criminal acts with which we are confronted are ugly, vicious, reprehensible acts,” Marshall began his eighty-five-page opinion. “Their sheer brutality cannot and should not be minimized.” But the court was not being asked to condone the crimes, Marshall went on; it was only being asked whether the death penalty in each case violated the Eighth Amendment. He then traced the history of capital punishment, noting the decline in the number of crimes for which it was considered appropriate and in its implementation. He concluded that it wasn’t a deterrent, and that it was more costly to execute a man than to keep him in prison for life. Finally, he declared, putting a man to death for a crime “is morally unacceptable to the people of the United States at this time in their history.”

  For Brennan, a punishment was cruel and unusual “if it does not comport with human dignity.” And putting someone to death, he wrote, was “fatally offensive to human dignity.” The words “human dignity” appear nowhere in the Constitution, and may have sprung from Brennan’s Roman Catholic faith.

  William O. Douglas was the court’s most liberal justice—“the most doctrinaire and committed civil libertarian ever to sit on the court,” Time magazine wrote in 1975—but he was not willing to go as far as Brennan and Marshall. In his view, it was the arbitrary and capricious manner in which the death penalty was being carried out by the states that rendered it unconstitutional. “One searches our chronicles in vain for the execution of any member of the affluent strata of our society,” Douglas wrote. Justice Douglas noted the race, background, and mental faculties of Furman, Branch, and Jackson and, more broadly, that a disproportionate number of blacks, poor, young, and uneducated people, were sent to their deaths.

  Justice Potter Stewart saw other evidence of the arbitrary nature of the administration of the death penalty: for the same crime, one person might be executed while ten others were sentenced to life in prison. In an opinion only ten paragraphs long, Stewart said that a death sentence was cruel and unusual “in the same way that being struck by lightning is cruel and unusual.”

  Among the dissenters was Justice Harry Blackmun. “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty,” he began. “Were I a legislator,” he went on, “I would vote against the death penalty.” But he was a justice and this was a court, and he could find nothing in history or law or earlier court decisions to justify overturning the death penalty.

  The court’s decision in Furman overturned the death penalty in the forty states where it could be applied and in the District of Columbia as well as for the federal government; across the country some six hundred death row inmates had their lives spared, more than half of them African American. Opponents of capital punishment rejoiced. Pr
ematurely. While the court said the death penalty was unconstitutional as it was being administered, the justices (except for Brennan and Marshall) left open the possibility that capital punishment could be administered in ways that were constitutional.

  Death penalty proponents went to work. In California, a ballot initiative to reinstate the death penalty, which was backed by Governor Ronald Reagan, was approved by nearly two to one. Within five months after Furman, the Florida legislature had enacted a new death penalty law, and other legislatures quickly followed. The new laws varied from state to state, but in general they limited the death penalty to aggravated murder, rape, and kidnapping; provided for bifurcated trials—first on the question of guilt or innocence, and if the defendant was found guilty, a second phase on the question of sentence—and placed requirements on judges and juries before they could impose it.

  The Supreme Court spoke again in 1976, in Gregg v. Georgia and companion cases from Texas, Louisiana, North Carolina, and Florida. The new capital punishment laws were upheld. Eventually, when the pro–death penalty legislators and lawyers were finished, the capital punishment map looked a lot like it did pre-Furman: executions were permitted in thirty-eight states, primarily in the South and West, and by the federal government.

  The first person executed after Furman and Gregg was Gary Gilmore, who killed a gas station attendant one day and a motel clerk the next. Gilmore, who had spent most of his life in prison or on the run, wanted to die; he did not want his lawyers to seek a stay from the Supreme Court. He was shot by a five-man firing squad in Utah in 1977. The case drew international attention, and Gilmore’s life was portrayed in a landmark book by Norman Mailer, The Executioner’s Song. The death penalty was back. What has become known as the modern era of the death penalty had begun.

  THE PROSECUTOR

  BEFORE JONES COULD proceed to trial against Elmore, he had to seek an indictment from a grand jury. The grand jury requirement is rooted in English common law and was enshrined in the Magna Carta as a check on the king’s power. In the American colonies, grand juries continued to serve as a check on royal powers by refusing to indict individuals who refused to pay taxes and duties imposed by Britain. The Founding Fathers understandably preserved the grand jury. The Fifth Amendment provides that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.…” The grand jury is no longer used in Britain, and the Fifth Amendment grand jury requirement has not been extended by the Supreme Court to the states (though other provisions of the amendment have been). By their own laws, most states require a grand jury in serious cases. Proceedings are in secret, and neither the defendant nor his lawyer is present. It is also debatable how effective the grand jury is as a shield against abuse of authority. “A competent prosecutor can get a grand jury to indict a ham sandwich,” a New York judge once said. (Prosecutors also use the grand jury as an investigative tool, subpoenaing witnesses to help them solve a crime or to find enough evidence to indict an individual. They are often used this way in cases involving organized crime or terrorism.)

  A few months before asking the grand jury to indict Elmore, Jones had brought the same panel the case of a prominent member of the community, a white man, who had shot and killed a black man walking across his property at night. In the secrecy of the grand jury room, Jones made it clear that he did not think an indictment was appropriate. The accused was an upstanding member of the community, Jones said, and he asked the grand jurors what they would have done if they had seen a black man on their property in the dark. Wouldn’t they have picked up a shotgun? he said to the jurors. The grand jury declined to indict.

  Jones didn’t present much evidence in the Elmore case—the testimony of a couple of police officers and the gruesome photographs of Mrs. Edwards stuffed in the closet. It took less than twenty minutes. “It was bim, bam, thank you ma’am,” recalled Barry Raborn, at thirty-six the youngest member of the all-white grand jury. Raborn told Jones he didn’t think he should be serving; he had grown up three doors from Mrs. Edwards—a remarkably attractive lady, he thought—and his father had been a pallbearer at her funeral. He had gone to high school with two of the police officers in the case. Nevertheless, Jones kept him. Raborn abstained from voting for or against an indictment; years later, he would conclude that he had been wrong not to oppose it. It wouldn’t have made much difference, except to his conscience.

  In addition to murder, the grand jury handed up an indictment for criminal sexual conduct, burglary, housebreaking, armed robbery, and larceny.

  There was never any doubt the jury would indict. Greenwood grand juries always did what Jones wanted, followed him like sheep, said Raborn. “If he said it was dark outside in the middle of the afternoon, they’d say, ‘You’re right.’ ”

  WILLIAM TOWNES JONES III was a Greenwood institution—renowned, powerful, and feared. “He was the sort of person for whom the cliché about taking up all the air in the room could have been invented,” said a lawyer who knew him. He was about five eight or five nine, of average build. He prided himself on being physically tough and had a firm handshake. Vain about his age, a dapper dresser in a conservative, old-fashioned way—he wore a fedora long after they had gone out of style—Jones was charismatic. At the same time, he appeared to be openly needy, a man who seemed to suffer in front of your eyes. He was born into the landed gentry, in the quaint-sounding Ware Shoals, just up the road from Greenwood. His father had lost the land to drink and the Depression, but by dint of his smarts (Phi Beta Kappa at the University of South Carolina), street savvy, and intensity of will, young Jones had risen. He had a ferocious temper and a reputation as a bit of a bully; no one crossed “Willy T.,” as just about everyone called him—though never when he was within earshot. “If he was on your side, you had a friend; if not, you had an enemy,” residents said. When Domino’s Pizza opened in Greenwood, the phone company gave it the number 229–1111. Jones’s law office number was 223–1111. He was soon getting calls for pizza delivery. Annoyed, he demanded that the phone company change Domino’s number. Domino’s resisted. Jones prevailed.

  For years, being county prosecutor was a part-time job in South Carolina, and in his private practice Jones hired talented young law graduates and taught them the practical aspects of the craft. Ron Motley, one of the nation’s premier trial lawyers, who earned his name—and millions—suing asbestos and tobacco companies and years later would represent some of the relatives of the victims of the 9/11 attacks, got his start with Jones. Jones was a “blue dog” Democrat, and at the 1972 Democratic National Convention in New York he met a young southerner who had just finished Yale Law School. He had been so impressed by the recent graduate that he offered him a job. Bill Clinton declined, saying he had decided to go back to Arkansas and enter politics.

  Jones was elected solicitor, as South Carolina calls its prosecutors, in 1952 and reelected every four years until he retired in 1984 and was succeeded by his son Townes.

  IN THE ADVERSARIAL American criminal justice system, Jones would square off with Elmore’s lawyers, with the judge sitting as impartial referee and the jury deciding who won, as it were. It is sometimes called “trial by combat.” But for the prosecution, for the state, winning is not synonymous with a conviction, or at least it is not supposed to be. The state’s interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done,” Justice George Sutherland wrote in 1935 for a unanimous Supreme Court in Berger v. United States. The court overturned a conspiracy conviction in part on the grounds that the prosecutor had exceeded permissible bounds in his cross-examination. The prosecutor should “prosecute with earnestness and vigor,” observed Sutherland, a conservative Republican from Utah. “But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
”

  Thirty-two years later, in 1967, Justice Byron White expressed the same view. “Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent,” he wrote in United States v. Wade. Though appointed by President Kennedy, White was not a liberal on the court and tended to side with the prosecution over the defense. He had, for instance, dissented a year earlier in Miranda.

  The American Bar Association sets the standards and ethical codes for lawyers. “The duty of the prosecutor is to seek justice, not merely to convict,” says the ABA’s Criminal Justice Standards. It elaborates: “Although the prosecutor operates within the adversary system, it is fundamental that the prosecutor’s obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public.”