The Death Penalty Legend

by Jonathan Wallace

The judicial process leading up to the death penalty is not about finding truth beyond a reasonable doubt. Instead, here's what really happens: the prosecution strives to create a credible legend (which may be unrelated to the truth.) The defense attempts to raise doubts about this legend (which may but does not necessarily involve creating a counter-legend.) If the jury buys the prosecution's legend, this is called a finding of guilt "beyond a reasonable doubt".

The "legend formation" process is dictated by the inherent disorder and uncertainty of human life and the way we go about creating, or in most cases, mimicking the semblances of, order. The death penalty, which most people at least pretend to agree should not be applied unless we are very, very certain--beyond a reasonable doubt--exists in a world of absolute truth, not one of relativity. We like our stories consistent, a very difficult enterprise since Heisenberg and Schrodinger.

Ernst Renan pointed out that the identity of nations-- themselves involving the collective formation of a legend--are based not only on collective acts of memory but also of convenient forgetfulness (the example he gives is how Catholic France has forgotten its massacres of Protestants). All legends involve the elimination of some facts. As the gospels attained primacy, there was undoubtedly a quiet elimination from the world of "noncanonical" literature about early Christianity. People who revere the memory of John F. Kennedy have forgotten how war-like he was. Ronald Reagan is still alive, but those who believe he was a great president have already eliminated the evidence of his occasional acts of frightening stupidity in public (such as statements about ketchup and trees.)

The construction of a legend in a death penalty case obeys this rule as well. If we cannot construct a legend that fits all the facts, we choose facts to obliterate from memory because they contradict the legend. Few of the people shouting for the death of Mumia Abu Jamal have any idea that the bullet found in Officer Daniel Faulkner was not shown to have come from Abu Jamal's gun.

As Paul Radin and others showed decades ago, the process by which early religious stories were invented has something in common with the scientific method in that both are attempts to account for natural phenomena. A rain god and precipitation are both explanations of rain. (I have written elsewhere that all types of human creativity, including art and science, are essentially similar.) Freud pointed out that dreams often attempt to encapsulate annoying external phenomena, such as an alarm clock, within the structure of the dream so that the sleeper does not need to respond to them by waking up.

An important feature of legend formation is that it is not typically a search for truth, though often characterized as such. It is more often a search for comfort, similar to an oyster's creation of a pearl by coating a foreign object which has invaded its shell. Once we have an appropriate legend, we can stop worrying. A fully formed legend is an invitation--in many cases, a command--to stop asking inconvenient questions. In very few cases is there any actual way to know if our legend is the truth. People will argue to the end of human time about whether God exists but He will never be scientifically verified. While science has created a respectable process--beginning with the premise that a theory must be "falsifiable"-- it is nonetheless only a rough and imprecise machine, as illustrated by the eventual swapping of a verified "Newtonian" universe for an "Einsteinian" and then a "quantum" universe. Each was considered to be gospel in its time.

We all know of examples of each of these legend-making processes giving results that are laughably wrong: we do not believe today that there is a rain god, or that phlogiston exists, or that the alarm clock is really a bee buzzing. The death penalty is unique today, among all the types of legend formation which still occur in our society: it is the only legend which once formed, results in the intentional killing of a human being.

Some readers will certainly think that these are words of appalling cynicism. If truth is almost unascertainable, then why have law courts at all? But I am not arguing that we should not do the good faith work of searching for truth in the courts; we should, as we do in all other enterprises, do the best we can. I am saying instead that we should recognize that the legal process is not good enough, not reliable enough, for us to kill people based on its results. This is the same as saying that the religious search for truth should not be used as a basis for killing--a proposition with which many more readers would agree.

An objection some will make: The adversarial American legal process supposedly reveals the truth through a healthy combat of opposing viewpoints with the jury as impartial and scientific arbiter. But this sad falsehood, beloved of trial lawyers, is only an element of the legend, rather than the underlying truth. While "truth by combat" might be effective in a perfect system, with all friction removed, in our lamentable real world it is affected by the inequality of the parties: the wealth of government, the indigence of most defendants and the resulting ineffectiveness of their counsel.

The state of Texas is a wonderful laboratory for observing the effectiveness of "truth by combat" because the workings of the system are unusually well exposed. (My explanation for this is that the state has such depraved indifference, and such blindness to the consequences of its casual brutality, that it does not see any need to cover up the workings of its death machine, the way other states do.) In most Texas counties, the public defender system was eliminated in the 1980's, or has never existed. While public defenders typically are overwhelmed by their case-load and have an inadequate budget to investigate cases, they at least are expert in the subject matter. Indigent defendants are represented by attorneys appointed by the judge. The criteria for their selection seems to be their political connections and willingness to cooperate with the death system, and not their overall competence or their experience in capital cases. There are reputedly many attorneys skilled in capital murder cases who are unable to get on the appointment list.

There is a built-in conflict in this system, as an attorney who won too many acquittals for clients would probably not continue to receive referrals from the judge to whom he is wired. Instead, Texas more than any other state produces scandalous situations in which the attorney is grossly incompetent, intoxicated, addicted to drugs, is subsequently disbarred or is asleep through-out the proceedings (three Texas cases of sleeping lawyers did not result in a new trial for the defendant.)

Ronald Mock, the attorney who defended Gary Graham, is a paradigm of this system. More of his clients wound up on death row than any other attorney in Texas or possibly in the United States. At Graham's trial he failed to cross-examine prosecution witnesses who would have acknowledged they could not identify Graham as the killer. Nor did he ever disclose to the jury that the gun Graham was carrying when apprehended was not the one which had fired the fatal shot.

Yes, but there are always appeals, right? The appeals process similarly does not involve ensuring that truth was found or justice done. Instead, it is limited to investigating whether the prosecution's legend was formed in a fashion minimally consistent with the rules for legend formation in the trial courts. The existence in appellate procedure of numerous rules creating time and event-driven limits to the appellant's rights further decreases the likelihood that a legend, once formed, will be revised on appeal. For example, Texas, like most states, has a rule that new evidence must be introduced within a short period of time after conviction. In Texas' case, it is thirty days. Thus, a Texas appeals court could legally refuse to pay attention to a credible confession by the real murderer producing physical evidence of his crime-- if he came forward on the thirty-first day. (DNA evidence seems to be shaping up as an exception, as early indications are that Texas will accept DNA exculpations long after the time limits have expired. But many murder cases, like Graham's, involve no DNA evidence at all.)

All states also have rules that certain matters must be objected to at trial or they are not preserved for appeal. For example, rigid prediction by the prosecutor to the jury that the defendant will kill again if not executed, unsupported by any evidence or expert testimony is improper--but cannot be attacked on appeal if the defense attorney is so incompetent, or so complacent a cog in the death system, that he fails to object.

This leaves defendants only with the common objection on appeal that they were not represented by competent counsel. As mentioned above, on three occasions the Texas appeals court has held that defendants were not prejudiced by their attorney sleeping during proceedings. In Gary Graham's case, the appeals court held that he was not harmed by Mock's failure to cross-examine the witnesses about their failure to identify Graham or to present testimony about Graham's gun.

The chief barricade against legend revision in a lawyer competency appeal is a rule which says that the court must be satisfied that the result might have been different if the attorney had been awake, or had introduced the relevant evidence. This is presented as a practical, money-saving proposition. If Jimmy is arrested standing over his victim, covered in blood, and waving a bloody knife, in front of twenty eyewitnesses who have known him since childhood, he is not harmed by a sleeping lawyer if the defense he would have presented via an awake one is that he was elsewhere at the time. So we are saving the public money by not granting a new trial.

But look at the way this system works in practice: the appeals court refused to grant Graham a new trial based on Mock's incompetency, even though three jurors from his trial have now said they would have voted "not guilty" if Mock had brought out the evidence about the gun and the other eyewitnesses' failure to identify Graham.

One of the shakiest aspects of the death penalty legend is that the system I have just described never kills innocent people. Here the elimination of a good deal of evidence from memory is necessary. The legend-making process is aided immensely by the fact that the typical defendant is a marginal person, often involved in other violent acts, and without the funds to defend himself against the accusation (the incompetent lawyers make an extremely important contribution to the forging of a credible legend.) The subtext-- rarely stated by anyone in authority, but uttered often by pro-death penalty folk demonstrating outside prisons--is that the defendant is a bad guy and the earth is well rid of him even if he didn't commit this particular murder. Gary Graham, for example, had confessed to a string of other assaults, robberies and a rape, while consistently denying his guilt for the murder of Bobby Lambert.

I call this the "he had it coming" defense for the death penalty.

Defenders of the death penalty legend insist that there has never been a proven case of an innocent man executed in America, ever. Besides the fact that there are some documented cases, the legend-makers must appropriate for their own use the countless cases of men proven innocent and released after spending years on death row. This proves, they say, that justice is always done, later if not at the trial. Although we send innocent people to death row, every innocent defendant is vindicated later. In other words, the death penalty is a perfect system.

This flies in the face of common sense. Humans have never created a perfect system of any type--not the automobile, not democracy. Nobody who defends the death penalty as perfect thinks any other system is. The argument that the number of freed convicts proves its perfection is equivalent to saying that the number of recalled automobiles proves that those left on the road are flawless.

The final refutation of the thesis that "the innocent are never executed" comes of course from Texas, the state whose brutality and lack of artifice leave the workings of the system exposed. When George Bush maintained that no innocent man had ever been executed in Texas, no reporter asked him about the cases of James Beathard and Gene Hathorn, two men who were sentenced to death for firing the same bullets. The prosecutor in both cases, Joe L. Price, cheerfully put Hathorn on the stand at Beathard's trial to testify that Beathard was the killer, then contradicted that same testimony at Hathorn's trial: " "Ok, and here was this ol' boy that had never shot that pistol before....going into a house he had never been in before in his life, to attack two people that had some advance warning he was coming....Does that seem a little bit strange to you, Gene?" The ingenious Joe L. Price got both men sentenced to death for the shootings that only one of them could have committed. The Texas appeals courts saw nothing wrong. Beathard has already been executed, and Hathorn remains on death row. It is a matter of simple logic that since only one of them could have pulled the trigger, the other is innocent. Back in 1994, a Texas brother and sister were similarly both convicted of firing the same bullet. The sister was sentenced to life in prison and the brother, Jesse Dewayne Jacobs, has been executed.

I would like to hear governor Bush explain the justice of the Beathard and Jacobs cases, but the credibility of the press and the tremendous power of the death penalty legend has ensured he is not asked the hard questions.

The prosecutor Joe L. Price, when interviewed by the New York Times about Beathard and Hathorn, said he wasn't sure who was the real killer but pointed out the other person was hardly innocent-- he was there, undisputedly, at the scene. Most states have "felony murder" laws which say that an accomplice at the scene of a crime resulting in murder is just as guilty as if he had pulled the trigger himself. For example, if two men commit an armed robbery, and one kills a security guard, the other may also be convicted of the death, which resulted from their mutual plan.

The problem with the application of "felony murder" to the Beathard/Hathorn case is that Beathard testified that he rode along with Hathorn on what he thought was a drug buy. When Hathorn began shooting, he ran away. After Hathorn was convicted and sentenced to death, he recanted and confirmed Beathard's story. (He did so more than thirty days after Beathard's conviction, so the Texas courts disregarded his new testimony under their "new evidence" rule.) If Beathard ran away--finally the consistent testimony of both men--then there was no felony murder.

There is a death penalty machine, which processes humans to their death, and there is a legend about the machine. The legend is that the process is fair and humane, and that death is practically painless, and not "cruel and unusual" (which would make it unconstitutional).

In his excellent book, Modernity and the Holocaust, Zygmunt Bauman made the counter-intuitive point that civilization, rather than being a compassionate force uplifting us to ever new paradigms of morality, gives us both the technological tools and the bureaucratic diffusion of responsibility necessary to make mass murder efficient and ordinary. He cites the memo of a German engineer, given the task of designing an efficient carbon monoxide killing van (these were used before the creation of gas chambers applying Zyklon-b.) The engineer speaks of the inevitable "shifting" of the "cargo" towards the rear door, the necessity of draining "thick" and "thin" fluids, and so forth.

Bauman argues that most humans have an innate resistance to killing other humans, which is overcome by bureaucratic distancing, diffusion of responsibility, and semantic manipulation ("cargo" instead of "people"). Lt. Col. Dave Grossman, in his book On Killing, cites S.L.A. Marshall's post-World War II study that only 15-20% of soldiers were willing to fire at an enemy, in the most morally unambiguous war of the century. He also recounts how on Civil War battlefields, muskets were often found with multiple charges crammed down the barrel (in one case, 23), indicating that their bearers made a show of loading for their officers but refused to fire on the enemy. Grossman concludes that civilization organizes itself to overcome our resistance to killing as follows:

Though Grossman was writing about the way our society shapes soldiers to kill in wartime, his conclusion applies easily to the death penalty machine. Authority figures call for the killing of criminals--prosecutors like the inimitable Joe L. Price, and the politicians, judges and pundits. There is "group absolution" for the prison officials who carry out the execution. By definition, the people who stay in the trade are hardened to the act of killing, and they are frequently violent in other ways. (As I write an autopsy is being done on the corpse of Gary Graham, looking for evidence of beatings by guards while he was on death row. In another case this week in which a prisoner had requested for religious reasons that an autopsy not be conducted after his execution, one of the reasons given for doing one anyway is that post-execution autopsies deter guards from beating death row prisoners.) Society distances death row inmates with rhetoric which would today be considered grossly incorrect applied to any other group (instead of the neutral "cargo", they are "scum", "trash", "animals".) And the cost-benefit analysis concludes that there is a pay-off (deterrence, payment of the killer's "debt", closure for the victim's families) which justifies the stresses of killing.

The death row legend minimizes the violence involved in the process. The convict walks quietly to the death chamber, says a few quiet words (or not). If he speaks, we want him to apologize to the survivors of his victim (this makes a very good legend), like the character played by Sean Penn in Dead Man Walking, and to take responsibility for his crimes. We gloss over the next few moments, and then the killer's soul departs peacefully, like the Little Prince's when he sheds his body on the desert sands. Looked at this way, the legend even promotes the idea that this death ennobles the killer, provides a ladder to redemption, gives him (in Catholic orthodoxy, anyway) the possibility to enter heaven if he sincerely repents before being killed.

The movie Dead Man Walking warrants a side note here. Movies are America's fundamental means of legend formation. While on a first viewing, the movie impresses for its starkness and honesty, comparing it to Sister Helen Prejean's memoir on which it is based is a very interesting exercise. Prejean recounts her spiritual guidance of two inmates; the movie conflates them into one. Both had been unambiguously evil; she did not work with a Gary Graham or a Mumia Abu Jamal with a credible claim to innocence. Both had kidnapped, raped and murdered young women. Although both said some formulaic words of apology just prior to being killed (it was very important to Prejean that they do so) neither took full responsibility for their crimes before dying.

In the movie, they are conflated into one killer, who was led into the murders by a more aggressive friend, and who confesses additional elements of the crime to "Prejean" (Susan Sarandon) just prior to execution. Nothing like this happens in Prejean's account. While her book clearly states that Prejean is unalterably opposed to the state killing even of "scum", "animals" and "trash", the movie makes her just one character in a mixture of opposing viewpoints. The killer's increasing nobility as he takes responsibility for his acts, and the directorial choice involved in cross-cutting to scenes of the killings from scenes of his execution by lethal injection, warrants an interpretation that the movie (unlike the book) was intended to sit squarely on the fence. Nothing in the movie would prevent a member of the audience from exiting with the satisfied belief that the movie endorses the legend of the ennobling and necessary function of the death penalty. Another interesting choice: the movie killer is executed by lethal injection, while both Prejean's clients were electrocuted. Did the filmmakers avoid the electric chair because its been done before (cf. the chilling portrayal of the killing of the Rosenbergs in the movie Daniel) or because, as a more violent instrumentality, its inconsistent with the idea of a quiet, reflective death as portrayed in Dead Man Walking? The movie, like other ostensibly "political" or "activist" films emerging from Hollywood, may have been intended as a perfect mirror, reflecting whatever views the audience brought into the darkness.

Prejean's book gives some interesting proofs of Bauman's and Grossman's propositions about society organizing itself to kill, particularly the diffusion of responsibility: prosecutors tell the jury that they are not actually killing the defendant, who will have many appeals; people serving on clemency and pardon boards are made comfortable by the fact that the jury voted death, and that the governor can act without them; governors assign responsibility to the clemency board, as Governor Bush did while Gary Graham was being killed; and the guards and prison officials actually doing the killing are reassured that they are only performing society's will (like minor Nazi functionaries "following orders").

Prejean quotes Louisiana head of corrections C. Paul Phelps:

[The corrections personnel] don't have to take any personal responsibility for what they are doing. Its their job. They are told to do it. They are told how to do it. They are told how long its going to take and what you do when you do it. Its like a drill, like an exercise, so they have no personal responsibility.

"Who killed this man?" Prejean asks of the first convict she counselled. "Nobody. Everybody can argue that he or she was just doing a job--the governor, the warden, the head of the Department of Corrections, the district attorney, the judge, the jury, the Pardon Board, the witnesses to the execution." Governor Edwards tells Prejean: "I tried to get the legislature to remove the whole process from the governor..." He has found a moral niche, she says, "from which he can make decisions and still lay his head on the pillow at night and go to sleep....He subordinates his conscience to the 'will of the people'."

In the perfect form of the death penalty legend, there would be no friction in the system: the killer would at the appointed place and time simply give up the ghost, willingly, as a repayment to society, without human intervention ("I owe God a death," as Shakespeare characters keep saying.)

Contrast this striking anecdote of the execution of Leandress Riley, relayed by Prejean from the diaries of a prison guard in the 1950's:

Riley was a black man executed in San Quentin's gas chamber on February 20, 1953. He was small, only eighty pounds or so, and he was terrified. The guards had to carry him screaming and struggling into the gas chamber where, with difficulty, they strapped him onto the metal chair and bolted the door. But just before they dropped the cyanide pellets into the vat of acid, Riley managed to pull his slim wrists out of the restraints and jumped up, racing around inside the chamber, beating frantically on the glass wondows where witnesses and media watched horrified. Prison officials had to stop the process, open the chamber, and strap him in again. This happened three times. And then he screamed in terror right up to the end, right up until he inhaled the gas.

Word has it that most of the guards who worked on Riley's "tactical unit" could never work another execution.

Prejean cites studies that show that public approval of the death penalty drops when people have more information about how it is carried out. For many decades a significant detail of the legend held that death by electricity was painless. In reality, criminals executed this way suffered terrible burns, sometimes caught fire, and often had to be shocked multiple times. Here's Justice William Brennan, dissenting in Glass v. Louisiana, also cited by Prejean:

The hands turn red, then white, and the cords of the neck stand out like steel bands....The prisoner's limbs, fingers, toes and face are severely contorted....The force of the electric current is so powerful that the prisoner's eyeballs sometimes pop out on his cheeks.....The prisoner often defecates, urinates and vomits blood and drool....Sometimes the prisoner catches fire.....There is a sound like bacon frying and the sickly sweet smell of burning flesh....The body frequently is badly burned....

The legend producing machinery is adroit indeed: we kill convicts in front of witnesses while successfully concealing the brutality of the process in most cases. Prejean watched both her convicts die. She observes:

But this death....with witnesses behind the square of Plexiglass like that, it was like a framed scene, death in the movies, death in celluloid, death under glass....Three clangs of the switch. No smell of burning flesh (the Plexiglass shields witnesses from the smell). No sight of his face (the mask conceals his face, his eyes.) And with his jaw strapped shut like that, he could not cry out.

The state of Florida recently adopted lethal injection after three botched electrocutions, including that of Allen Lee Davis (in March I ran a photo of Davis' bloody face after execution so disturbing that the mainstream media refused to pick it up.) One of the first uses of lethal injection was the killing in early June of Bennie Demps, the inmate whose letter to the public about his innocence I ran that same month. Demps was strapped to a Gurney for almost an hour before the chemicals were administered. In his final statement, in place of the accepted hagiography of apology, Demps related how he had been cut several times, in the leg and the groin, in search of a vein to run the IV line. He called his execution "a low tech lynching by poison."

It is part of the legend that prisoners, because they recognize their guilt and the justice of their disposition, cooperate quietly. Probably many do, out of their own macho principles (not to show fear or cowardice like Leandress Riley), or because they are hopeless, or drugged. Gary Graham did not; he promised he would fight his guards, and he did. Bennie Demps proclaimed he was being murdered. Personally I hope more prisoners engage in nonviolent resistant behavior which will establish their own humanity or shock the witnesses into questioning what they have seen.

In case they do not cooperate, the killing process includes the "tactical" or "strap down" team of guards, shackles, straps and masks to ensure that the condemned goes gently into that good night.

Descriptions of executions by injection always remind me of the following. The source is Robert Jay Lifton, The Nazi Doctors, pp. 254-259 (quoted in my compilation An Auschwitz Alphabet):

The most medical of all Auschwitz killing methods was the phenol injection, which was institutionalized during the relatively early phases of Auschwitz. A patient was brought to a treatment room and there administered a drug by a physician or (in most cases) his assistant, who wore a white coat and used a syringe and needle for the injection. In camp jargon, there were the active verb spritzen (to "inject, squirt, spray"), the passive verb abgespritzt ("to be injected off", or killed) and equivalent noun forms meaning "syringing" and "phenoling".

Initially, phenol was injected into a victim's vein, maximizing the medical aura of the entire procedure...Before long, the technique was changed to injecting the phenol directly into the heart. Some witnesses thought that the change was made because the veins were sometimes hard to locate, but the real reason seems to have been the greater killing efficiency of a direct cardiac injection. Patients injected by vein might linger for minutes or even an hour or more...The "concentrated aqueous solution of phenol" that was developed proved "inexpensive, easy to use, and absolutely effective when introduced into the heart ventricle", so that an injection of ten to fifteen millileters into the heart caused death within fifteen seconds....

At that point two Jewish prisoner assistants brought a victim into the room (sometimes victims were brought in two at a time) and positioned him or her on a footstool, usually so that the right arm covered the victim's eyes and the left arm was raised sideways in a horizontal position....The idea was for the victim's chest to be thrust out so that the cardiac area was maximally accessible for the lethal injection, and for him or her to be unable to see what was happening....The person giving the injection--most often the SDG Josef Klehr--filled his syringe from the bottle and then thrust the needle directly into the heart of the seated prisoner and emptied the contents of the syringe.

Thus, an average of two minutes and 22 seconds sufficed to murder one prisoner.

I will undoubtedly receive indignant mail, as I have before, for dragging Auschwitz into a discussion of the death penalty: innocent Jews vs. horrific murderers, etc. But I will evoke my favorite thought experiment, the Martian student of human behavior. Imagine he visits earth twice, once to observe the injection of a Jewish prisoner at Auschwitz, the second time to witness the killing of Bennie Demps. The Martian observer would at first blush be hard put to describe any material differences between the two events. Everything is dependent on human nuance, on an absolutist view of guilt and innocence. The Martian would have to spend a lot of time trying to dig out the distinctions. He would discover that, like the Demps execution, the killings at Auschwitz were perfectly legal under applicable law. He might spend some time struggling with concepts of personal vs. collective guilt, but he would discover that Germans held each Jew to be individually guilty of crimes against the German state. He might well discover that the Germans killed at least a few killers at Auschwitz, while Americans have killed a few innocent men. The closer he looked, the less significant would be the distinctions between the "phenoling" of a prisoner at Auschwitz and the "lethal injection" of Benny Demps.

If we acknowledge that one is an act of terrible brutality, we must admit the same for the other. It is at that point that the fabric of the comforting legend is completely torn away and we enter the domain of bleak truth. We kill people brutally, in the electric chair, gas chamber, by hanging, shooting or lethal injection. We are left with two things: the "he had it coming" theory of justice and the uncomfortable realization that only a very brutal element among us loves the death penalty. Outside any prison on execution night, you can always find the element which loves a public burning, waving signs like, "Nebraska State 1st Barbecue." "Burn 'em, fry 'em," said a college student in Huntsville, Texas on the eve of an execution. "So what if a few innocent people slip through. That's better than having a lot of guilty people on the street!"

The legend, with its harmonious images of repentant, grateful prisoners going quietly to sleep, lulls us into complacency. I believe that if we put aside the legend and stare unremittingly at the reality of killing, we will put aside the death penalty as well.