For the past month, the case of Sharon Keller has been the talk of the legal world in San Antonio, where District Judge David Berchelmann Jr. is preparing his findings of fact for the State Commission on Judicial Conduct, which will decide Judge Keller’s fate. Keller, you’ll recall, is the Texas Criminal Appeals Court judge who declined to let the clerk’s office stay open late September 25, 2007, preventing a last-minute appeal by lawyers for convicted death-row inmate Michael Richard. Richard was executed later that evening.
While the immediate issue is the narrow question of whether Judge Keller should have let the clerk’s office remain open a little past 5, and perhaps the even narrower question of whether Keller should have told another judge of the request, the case has garnered so much attention at the local and national levels because most people recognize that this contretemps is a proxy for a much more profound issue. It feels like the opening salvo in a fight that has been building for several years and may be finally coming to a head: the survival of the modern-day death penalty.
The U.S. Supreme Court initiated the current death-penalty era in 1976 — overturning previous decisions holding that it was cruel and unusual punishment — and in doing so, created a kind of compromise. The death penalty would be allowed for murder, but only in cases where there was a separate sentencing phase to consider aggravating or mitigating factors and with adequate appellate review. The idea was that this elaborate process of bifurcated trials and layers of review would ensure that the death penalty was only used on those who were certainly guilty of committing the most heinous crimes.
This system has worked to no one’s satisfaction. For those morally opposed to the death penalty, no amount of process and review can justify the underlying wrong. Meanwhile, those in favor of the death penalty have become increasingly frustrated by the lengthy and expensive process, which often take decades and millions of dollars before the judgment is finally carried out.
As the view of death-penalty proponents increasingly took hold, pressure fell on judges and public officials to expedite the process, to prevent convicted murderers from abusing the system simply to delay the inevitable. This of course only increased the anger of death-penalty opponents, who felt the appeals courts were short-changing the very people who needed them most. The strong reaction to Judge Keller’s seemingly callous decision almost certainly stems from the suspicion that her actions were part of this move-it-along attitude.
The Keller case marks an important moment in the anti-death-penalty movement. In recent years, particularly as the increasing use of DNA tests have exonerated many inmates on death row, there have been a number of initiatives to reduce or eliminate the death penalty. Illinois placed a moratorium on the death penalty after a team of university journalism students proved the innocence of a man on death row within days of his execution. For the first time in the modern death-penalty era, two states, New Jersey and New Mexico, have repealed their death-penalty statutes. The Supreme Court has chipped away at the scope of the death penalty in recent years, declaring it unconstitutional to execute rapists, juveniles, and the mentally retarded.
Supreme Court justices have also shown frustration with the current system. Justice Harry Blackmun, a Nixon appointee, shortly before his retirement famously swore off death-penalty cases, writing, “From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored ... to develop ... rules that would lend more than the mere appearance of fairness to the death penalty endeavor. ... Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved ... I feel ... obligated simply to concede that the death penalty experiment has failed.”
Justice John Paul Stevens, another Republican nominee to the Supreme Court and one of the members who voted to restore the death penalty in 1976, last year wrote, “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”
It is beyond dispute that we have come exceedingly close to executing innocent people and, in the opinion of most critics, we almost certainly have done so. However, as this reality dawns on us, the proponents of the status quo increasingly cling to a fair process as an end in itself rather than as the means by which we ensure the penalty is administered only to the guilty. Justice Scalia recently wrote, “`T`his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” In other words, even demonstrated innocence may no longer be sufficient to halt a death sentence.
These diverging points of view on the modern-day death-penalty regime may come to a head soon. The New Yorker recently wrote about the execution of Cameron Todd Willingham of Corsicana, Texas, who was convicted of killing his three children by arson. The main evidence against Willingham was the testimony of deputy fire marshal Manuel Vasquez, an investigator who “cultivated a Sherlock Holmes-like aura of invincibility” and ruled arson in “most all” of the fires he investigated, using intuitive methods that have subsequently been almost entirely debunked by investigators using proven scientific techniques. Another fire investigator, who turned away from the old-school intuitive techniques in favor of science, explained to the New Yorker how he almost supported a capital-murder conviction based on faulty methods and reasoning. “This was my epiphany,” he said. “I almost sent a man to die based on theories that were a load of crap.”
In Willingham’s case, an investigator named Gerald Hurst, who had worked with covert operatives in Vietnam developing bombs from local materials like chicken manure and had been termed a “brilliant scientist” by Texas prosecutors, determined that none of the conclusions drawn by Vasquez’s methods stood up under scientific scrutiny. Hurst’s findings were seconded by an independent panel of three arson investigators. Nevertheless, the Pardons Board and governor denied clemency, and Willingham, who had been offered a life sentence if he just pleaded guilty, was put to death on February 17, 2004. His last words were, “The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God’s dust I came and to dust I will return, so the Earth shall become my throne.”
We may never know for sure if Willingham was actually guilty, just as we will never know what would have happened had Judge Keller ordered the clerk’s office to stay open another 20 minutes on September 25, 2007. Indeed, as the unreliability of juries and the criminal process is made clearer by the continued emergence of DNA evidence, we will be increasingly uncertain about the actual guilt or innocence of many of the people we send to death row.
The Sharon Keller controversy brings these broader contradictions into high relief. The modern death-penalty ideal of executing only those who are certainly guilty, ensured through a series of elaborate safeguards, has broken down. As that certitude unravels, we are left with a choice between ending this experiment in state-ordered killing of criminal convicts, or accepting the fact, as Scalia is prepared to do, that some innocent people will have to die in order for the system to survive. •
Aaron Haas is a staff attorney with Texas RioGrande Legal Aid. His next column will appear in the October 21 issue of the Current.