Breaking Rank (14 page)

But what of “justice” and “closure”? Aren't they legitimate motives? Of course. But if we had the courage to question
why
they are so important to us, we might not like the answer.

Could it be that the same hunger for justice and closure that leads to a sanitized killing in a state penitentiary is no different from the motive that leads to unlawful violence on the streets, or in our homes? Domestic violence? Gang shootings? Child abuse? Even road rage? You cut me off on the freeway, hurt or insult one of my homeboys, irritate me while I'm watching the game, you gotta pay. An eye for an eye.

No one epitomizes the avenging angel better than George W. Bush. I'm not talking about his legitimate war in Afghanistan or his indefensible war in Iraq, I'm talking about his war against mercy and justice in Texas. During his reign as a “compassionate conservative” governor, Bush presided over the executions of 152 inmates.

Do you remember the case of Karla Faye Tucker? Convicted of two ax murders, she sought executive clemency, claiming to have undergone a spiritual transformation while incarcerated—understandable for a woman facing imminent death. She also exhibited profound remorse for her crimes (neither argument, if I were a death penalty advocate, would sway me). Bush screwed up his face like a pouty seventh-grader and whiningly mimicked Tucker: “
Please
don't kill me.”

Texas did kill Karla Faye Tucker, on February 3, 1998, by lethal injection. She became the first woman executed in that state since the Civil War.
*

Even more worrisome than Bush's callous and juvenile mockery was the governor's defense of Texas's killing record. Governor Ryan of Illinois had been haunted by capital punishment, particularly the specter of putting to
death an innocent person. Bush had no such qualms, presiding over a state whose police, prosecutors, judges, and juries are certainly no more reliable than those of Illinois. “I'm confident that every person that's been put to death under our state has been guilty of the crime charged,” he said.

And what was Bush's process of review before a death sentence was carried out? He would skim a three-page memo the morning of an execution, a memo written by Alberto R. Gonzales, White House counsel whom Bush has appointed as Attorney General for his second term—the man who wrote an internal memo in defense of torture, and a staunch supporter of the death penalty.

If Bush actually read newspapers he might have noticed that the day before his refusal to stop the execution of Gary Graham, the
New York Times
(June 23, 2000), had this to say: “There is powerful evidence that he did not commit the murder for which the state put him to death.” The editorial continued:

Mr. Graham, represented at trial by a court-appointed lawyer who failed to mount a meaningful defense, was convicted largely on the testimony of a single witness who said she saw him from 30 to 40 feet away through her car windshield. There was no physical evidence linking Mr. Graham to the crime. Tests showed that the gun he was carrying was not the murder weapon, and two other witnesses who were never called to testify at trial said they had seen the killer, and it was not Mr. Graham.

Even when faced with 100 percent “guilty as charged” defendants—criminals who have committed the most heinous crimes—it is still wrong to execute them. Capital punishment makes cowards of its executors. It turns Texas and Arkansas, George W. Bush and Bill Clinton, and the rest of us into a craven nation.

Michael Dukakis lost the 1988 presidential election in part because of his stilted, lawyerly response to Bernard Shaw's blunt question, “If Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?”

Dukakis replied, “No, I don't, Bernard. And I think you know that I've opposed the death penalty during all of my life. I don't see any evidence that it's a deterrent, and I think there are better and more effective ways to deal with violent crime.” A short man, Dukakis stood tall in my eyes when he answered that question.

Where are our national leaders today? Did you hear the death penalty mentioned, even once, in the 2004 presidential or vice presidential debates? Of course not. I wanted as much as anyone to see John Kerry defeat George Bush. But Kerry wasn't about to “pull a Dukakis,” even though I suspect he harbors strong anti-death penalty sentiments.

Matthew Shepard was pistol-whipped by two gay-hating goons, strapped to a fence, and left to die in a snowy field in Wyoming. After the guilty verdict but before sentencing, Aaron McKinney's attorney sought to convince the prosecutor that his client should serve two consecutive life sentences rather than face execution. The prosecutor had no intention of agreeing, but he took the offer to Dennis and Judy Shepard, Matthew's parents. Judy persuaded Dennis, who'd previously supported the death penalty under certain circumstances, to accept the proposal. (Russell Henderson, who'd previously pled guilty, was already serving two consecutive life terms.) The following day, Dennis Shepard stood up in court to explain to the jury why his son's killer had been spared. He looked right at McKinney:

I would like nothing better than to see you die, Mr. McKinney. However, this is the time to begin the healing process. To show mercy to someone who refused to show any mercy. To use this as the first step in my own closure about losing Matt. Mr. McKinney, I am not doing this because of your family. I am definitely not doing this because of the crass and unwarranted pressures put on by the religious community. If anything, that hardens my resolve to see you die. Mr. McKinney, I'm going to grant you life, as hard as that is for me to do, because of Matthew. Every time you
celebrate Christmas, a birthday, or the Fourth of July, remember that Matt isn't. Every time that you wake up in that prison cell, remember that you had the opportunity and the ability to stop your actions that night. Every time that you see your cellmate, remember that you had a choice, and now you are living that choice. You robbed me of something very precious, and I will never forgive you for that. Mr. McKinney, I give you life in the memory of one who no longer lives. May you have a long life, and may you thank Matthew every day for it.

My own son is named Matthew. If, God forbid, he were murdered I'd hope to have Mr. Shepard's courage. The strength to stand up in court and say
enough
. To seek the same humble “closure” he sought: the comfort of knowing that Matthew's killers would have every day of the rest of their lives, behind bars, to ponder why they did what they did.

Life in prison, with no parole: it should be the toughest sentence on our books.

Our cops captured Joselito Cinco at dawn. He'd burrowed into a small ravine and covered himself with brush. Surrendering meekly, he was later convicted on two counts of first-degree murder and sentenced to die in the gas chamber in San Quentin. He hung himself in his cell.

*
According to
The Hill
, Americans' support of capital punishment had been declining in the years prior to 9/11 (due, principally, to the wrongful convictions uncovered by “innocence” projects throughout the country); in May 2001, 65 percent of Americans supported the death penalty. Today 74 percent support it.

*
Ron Carlson, brother of one of Karla Faye Tucker's victims, and the son of a man killed by a shotgun blast, had for years sought vengeance as he nursed a strong hatred for the people who'd killed his loved ones. He had hoped Tucker's execution would bring “closure.” It did not. Carlson now speaks out against the death penalty, stressing the pain it causes both families.

CHAPTER 5

CRIMINALS' RIGHTS: WORTH PROTECTING?

The following conversation takes place in a criminal justice class I'm teaching at San Diego State in the mid-seventies. The players are an upper-division student (who happens to be a veteran cop) and the head of the local defenders office, our guest speaker. The lawyer has just finished a rousing talk on what he goes through to get his clients off. The cop's hand shoots up. The lawyer calls on him.

COP: How can you look at yourself in the mirror? The pukes and assholes you defend are evil . . . guilty. Everyone knows they did it. How can you stand there and justify what you do for a living? It's . . . it's . . . immoral.

LAWYER: It's no more immoral for me to defend a client than it is for you to arrest him. My job is to give him the best defense I can. Why? Well, I could tell you that
every
American is entitled to constitutional protections; that our system of government demands no less. That the preservation of our republic as we know it requires no less. I could tell you that only a spirited, competent defense stands between an innocent defendant and prison—or worse. And I believe in all that. But there's another reason that people accused of even the most heinous crimes should get the best possible defense.

COP: What's that?

LAWYER: If I'm not effective at what I do, if defense attorneys are lazy, or dull, distracted, or just plain incompetent—do you really think that would make it easier for your side to win?

COP: I guess. Sure.

LAWYER: Wrong! What would happen is that
prosecutors
would become lazy, dull, inattentive, and incompetent. That's how systems work. If criminal defense attorneys are ineffectual, why would the DA have to
hire sharp attorneys to go up against them? Why would he have to set high standards for his deputies' case reviews and research, their briefs and motions, their courtroom performance? If I don't do my job well it weakens the whole system of criminal justice.

COP: Yeah, but . . .

LAWYER: If criminal defendants were represented only by ambulance-chasing shysters how long do you think it would take for the effects to be felt on
your
work? You wouldn't have to work as hard to get a case charged. Convictions would be delivered on a silver platter and . . .

COP: Yeah, so?

LAWYER: Police work would become even sloppier and more unprofessional than it already is. Crime scene protection, the identification, collection, preservation, and analysis of trace evidence, witness interviews, scene reconstructions, suspect interrogations, report-writing, testimony on the stand—all that would suffer. You'd be a less skilled, a less proficient police department. And
you
, sir, wouldn't be the cop you are today.

COP: Hmm.

LAWYER: By the way, do you really think we believe all our clients are innocent? Hell, we know most of them are guilty.

COP: You do?

LAWYER: Of course. I'll tell you something. An honest defense attorney lives in fear of the day an innocent client walks through the door. We just want to force you guys, and the prosecutors, to take your best shot. To
prove
your case, not just phone it in.

COP: Are you saying, then, that Miranda and all those other Supreme Court cases have had the same effect on us? Like they've made us better cops?

LAWYER: What do you think?

COP: Well, I'll have to give that some thought . . .

What about “
Miranda
and all those other Supreme Court cases”? When you hear cops grumble and grouse about laws that “handcuff” them they're referring to one or more of the following landmark Bill of Rights cases.

MAPP
v.
OHIO
(1961). Cleveland police officers broke into the residence of Dollree Mapp, discovered in the basement materials they deemed to be
obscene, and arrested her. Her conviction was upheld by the Ohio state supreme court. The U.S. Supreme Court overturned the conviction, and extended a vital federal principle to all fifty states: Evidence seized in violation of a defendant's constitutional rights (in this case, to privacy, the Fourth Amendment) may not be used in court. Called the
exclusionary rule,
the majority opinion was written by Justice Tom C. Clark, father of one of my criminal justice heroes, Ramsey Clark. (The senior Clark retired from the bench in 1967 to avoid a conflict of interest when his son became Attorney General.) Clark wrote that
Mapp
v.
Ohio
may “appear as a technicality . . . but . . . tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.”