The Ethical Spectacle March 1995 (

Texas Kills An Innocent Man

Texas recently executed Jesse Dewayne Jacobs, who confessed to murder, then recanted and accused his sister of the killing.

The state prosecutor was not obligated to believe Jacobs. Instead, the state relied on his testimony in convicting his sister of murder. However, Jacobs had been sentenced to death; his sister was sentenced to a prison term.

At this point, the following had happened: one person had squeezed the trigger and committed a murder; Texas had convicted two people of being that one person.

Jacobs appealed to the Federal Court of Appeals, which declined to act, and on to the Supreme Court, which also wouldn't get involved, and which issued no majority opinion in declining the appeal. (The Supreme Court picks its cases for the important issues they raise, and is accepting fewer every year.) Justice Stevens, dissenting, said:

It would be fundamentally unfair to execute a person on the basis of a factual determination that the state has formally disavowed. I find this course of events deeply troubling.

Of course, once the Supreme Court has declined to help you, there is nowhere else to go. Jacobs was executed, leaving behind him the question of how Texas could convict two people for an act only one of them could have committed.

The prosecutor responsible for the case pointed out that, whether or not he pulled the trigger, Jacobs assisted in kidnapping and pistol-whipping the victim. This is what is called the "He Had It Coming" defense.

Conviction on kidnapping and pistol-whipping charges, even when linked with a killing by a confederate, wouldn't have supported the death penalty, according to a 1982 Supreme Court case called Enmund v. Florida. Instead, Jacobs was executed for a crime which the state acknowledged he did not commit. Jacobs may have borne moral guilt for an incident of murder which he aided, but, according to our constitution and legal system, he was legally innocent. Then Texas killed an innocent man.

The Constitution establishes that we are innocent until proven guilty. "He had it coming" is neither a legal justification, nor is it a moral excuse. The prosecutor committed a terrible, shabby act, the kind of act that raises the question whether humans can be trusted to administer the death penalty to each other.

I blame the prosecutorial mindset. There are prosecutors out there who would happily convict twenty-five people, not just two, of the same crime only one could have committed, if the law would allow it. The sign over the Texas' prosecutor's desk should read, "By Any Means Necessary." In certain European countries which use the Napoleonic civil law system, trials are a quest for truth in which everyone participates, prosecutor, defense and judge. That's the way it is here in name only. In reality, it is an athletic contest. Defense counsel presents lies to save his client, while the prosecutor goes to any measures to sink him. Over them presides a bored, cynical judge. Buried under all this is a provision of the lawyers' Canon of Ethics, which everyone disregards, saying that you cannot knowingly present a false position to the court.

A prosecutor's worth, as a public servant and a human being, should be determined by the number of innocent people he has decided not to prosecute, as well as by the number of guilty he has convicted. Play Diogenes, and walk into the local D.A.'s or U.S. attorney's office, in broad daylight, with a lantern, seeking the assistant prosecutor, or his or her boss, who has ever, as a lonely moral stand, urged that the office desist from pursuing a particular defendant. You will not find one. We compensate and review prosecutors as if they were salespeople; just substitute convictions and pleas for closes.

One of the the saddest things I ever saw was a jury returning to the courtroom to deliver their verdict in a federal case. After announcing that they found the defendant guilty of harboring a fugitive, the foreman read a statement the jurors had written in which they stated that they had convicted under an unfair law, a law which should not have existed; but that the judge's interpretation of the law had left them no choice. The foreman, and most of the jurors, were weeping, overwhelmed by compassion for the woman they were sending to prison. How would those jurors have felt, had they realized that they were the only people in the courtroom with a conscience, and the only ones following the rules?