NO DEFENSE.

A Catholic lawyer argues against the death penalty

Early on I learned that the death penalty and religion can be an odd mix. It was a spring night in Birmingham, Alabama, the city where I spent more than five years defending death-row inmates and capital defendants. After many tries I had finally managed to catch up with an eyewitness whose testimony had put my new appeals client on death row. The eyewitness was an elderly woman without family.

Troubling circumstances made me wonder whether the right man had been convicted, but there was no doubt this decent, innocent woman had gone through a terrible ordeal. Her housemate had been murdered, and she herself had been brutally beaten. I was deeply grateful she would even speak to me.

I was downright moved when, at the end of a long conversation, the woman said to me: "Mr. Doyle [pronounced Dole in Alabama], tonight you will be in my prayers." Yes, I was moved and, I now confess, began to get a bit puffed up. Pride tempted me to think this fellow believer could discern in me the conviction behind my efforts. I was giving off "faith vibes"!

In her next breath, however, the woman put me in my place: "Yes, tonight I will ask the Lord to punish you for what you are doing."

Such experiences make me wary. Still, when asked to explain why I oppose the death penalty, I cannot help but answer as a Roman Catholic. For my opposition to the death penalty really boils down to three basic propositions:

1. Human beings are fallible.

2. Racism is mortally sinful.

3. Human life is sacred.

These are not exclusively Catholic understandings or beliefs, but I do think they have a special resonance in the Catholic tradition.

1 Human beings are fallible.

In the 19th century, when there was less ecumenical etiquette, a mainline Protestant church published a pamphlet contending that Catholicism really was not a Christian religion at all; rather, it was a "religion of human nature, congenial and delightful to fallen man." Frankly, there is some truth in that.

When I was down South, my Baptist friends struck me as having a more black-and-white view of things. One was saved or was not saved; born again or not born again. You were either a shoo-in for heaven or bound for hell.

Catholics see a lot more gray. We believe that the line between good and evil does not run between individuals but, rather, through the human heart. Error, misunder-standing, and sinfulness are never a surprise for us. I think that is one of the reasons why we have great spiritual writers like Saint Ignatius of Loyola and Thomas Merton and why we have great fiction writers like Flannery O'Connor, Graham Greene, and Mary Gordon. In any event, we understand the fallibility and frailty of the individual.

We also have--or darn well should have--a strong understanding about institutional fallibility. Because, after all, as Catholics we believe that Christ entrusted his word to us in a special way; we believe the institutional church has endured and evolved through history as a special repository of faith. Right? We believe ours is the truest expression of Christ's message--not the perfect expression, not that we do not have a lot learn from other faiths, but the truest expression.

Yet look at our church's history. We have had geopolitical misadventures in the form of the Crusades, reigns of terror in the form of the Inquisition, and blasphemous commercialization of our doctrines in the form of indulgence sales.

There is not a lot of room for Catholics to kid themselves about the fallibility of institutions. Therefore, if you bring a Catholic understanding and sensibility to the death penalty, it sort of hits you in the face just how faulty things are on a systemic level.

Many labor under the notion that capital defendants enjoy plenty of rights and safeguards. In most capital jurisdictions, nothing could be farther from the truth. The defense fight put up in most death-penalty cases mocks the ideals of adversary justice and equal protection.

To be sure, every state has able trial lawyers. For instance, I was privileged to work with many fine, talented men and women in Alabama. But, no matter how dedicated attorneys might be, undertraining and underfunding will inevitably drag down the quality of representation. Economic conservatives are right: In the long haul, you only get what you pay for.

And most states simply refuse to pay what it takes to ensure that indigent suspects on trial for their lives are well represented. Alabama, for instance, pays capital lawyers $40 an hour for their in-court time and $20 an hour for work done outside the courtroom, with a "cap" of $1,000 for such out-of-court work. An hour in court earns a Maryland capital lawyer $35, an hour out of court $30.

Now, for perspective, set these paltry figures against my billing rate during the late 1980s when I litigated for a Wall Street law firm. For two years I defended not the lives of the poor but the property of the rich. As a mere associate, my time was billed out at $200 an hour!

Naturally, justice-on-the-cheap leads to bad mistakes. Because we--literally--bury those mistakes, it's hard to say how often we are getting it wrong. Here, however, is what I believe is just the tip of the iceberg: Between 1900 and 1962 there have been hundreds of soundly documented instances of wrongful capital and potentially capital convictions. More than 20 wrongful executions in this century have been similarly documented.

We Americans like to scapegoat certain regions. So maybe you think such errors only occur in a terrible, backwards frontier Texas or a reckless, racist South. Well, for sure, these places have a good share of errors. I can still recall the day my boss in Alabama, Bryan Stevenson, and my colleague, Michael O'Connor, managed to free an innocent black man named Walter McMillian after he had spent eight years on death row for the murder of a young white woman. And in 1993, the United States Supreme Court gave Texas the green light tto execute Leonel Herrera, despite a sworn affidavit from a former judge that another person had confessed to the murder for which Herrera was put to death.

Still, Illinois is not in the South. And there, for every person who has been executed, they have had to let someone else off the row because of compelling evidence of innocence. And here in New York, the death penalty has been restored to the books despite our holding the all-time record for the most documented instances of wrongful executions: eight.

Nationally, since 1973, roughly 6,000 people have been put on death row. According to the Death Penalty Information Center, more than 60 have had to be released in the wake of evidence pointing to innocence. That is a 1-percent error rate.

For a second, take this out of a context where the lives in jeopardy are predominantly poor people and minorities and put it into a different setting: Say you designed an airplane and went to the Federal Aviation Administration and said, "I want you to license this plane. Oh, and, by the way, on every 100th landing the passengers will almost get killed." What would happen?

Or say you went to the Food and Drug Administration and said, "I have a drug that has no demonstrable benefits, a completely unpredictable reaction on at least 12 percent of the population, and 1 percent of the time it causes near-lethal side effects." What would happen?

Given the quality of the current capital system, no wonder the American Bar Association has called for a moratorium on executions.

Finally, even if America guaranteed topnotch lawyering for every capital defendant, even if the system was as good as it could be, the unique dynamics of a death case create pitfalls for even the well-trained, amply equipped, and fairly paid attorney.

Upon conviction for first-degree murder there is a penalty phase after which a jury typically chooses between a sentence of life without parole and a sentence of death. This involves jurors' factual determination but, even more, their moral judgment. Such moral judgment must reflect an understanding of the defendant's life. To take just one key area of investigation: What kind of start did he have? Did this person turn away from a sound moral upbringing to pursue a life of crime? Or did family patterns of abuse, addiction, and mental illness shunt the defendant toward a bad end not wholly of his choosing?

Getting at the truths of family history is not so easy. Most families do not readily air dirty linen, especially to lawyers who come from a separate social universe.

This point was driven home for me one sunny Southern morning as I asked a client's mother about the numerous father figures surrounding my client as he grew up. My questions were circumspect and the mother could not have been nicer. Her current husband, though, took the occasion to enter the living room and show off his "over-under" hunting gun (a shotgun/.22 combo). He did so by aiming the rifle in my direction and saying he did not have to "put up with this nonsense" (actually, nonsense was not the word he chose).

This gesture helped me. Apart from proving my own family wrong about me--there are indeed moments when I will defer debate--it hinted to me that I was on the right investigative track. Such a dramatic tip-off, however, is rare. Most families hide their secrets behind silence, under euphemism, and in the shadows of selective recall. Of course, the worst secrets--those most helpful in explaining how a defendant went wrong--are the best hidden.

When I was young, I thought Christ's injunction "Judge not lest ye be judged" was saying: "Be nice." The older I get the more I realize that what he was really saying was: "Hey, you're not very good at judging. If you don't have to do it, don't do it." Our Lord was being prudent, not just charitable.

2 Racism is mortally sinful.

The Catholic record on race is a mixed one. Not only is it mixed, it is often misunderstood and misrepresented. Sometimes we give the church too little credit, sometimes too much.

For many years, as a good liberal Catholic, I accepted the conventional wisdom that the Vatican during the Second World War callously turned its back on the European Jewish communities targeted by Hitler for slaughter. After over 10 years of research and writing on this, I believe that is simplistic nonsense.

On the other hand, Catholics may get too much credit in this country. To be sure, the American Catholic bishops were out ahead of the United States Supreme Court in denouncing segregated education. Once desegregation got under way, furthermore, some bishops--like one in New Orleans--used excommunication against recalcitrant segregationists.

As a result of these actions by the institutional church, the non-Catholic American public wrongly assumed that the Catholic laity in America were prophets for racial justice. Polling of Catholic Americans showed otherwise. And the violent reaction of Boston Catholics to the desegregation busing in the 1970s finished off any remaining doubt.

The Catholic record on race is mixed, but the teaching is certainly not. No other church aspires to greater inclusivity than does our Catholic Church. After all, the word catholic means universal, and the Catholic Church may be the most racially and ethnically diverse institution in the history of the world.

If you bring those sensibilities to the death penalty, it's impossible to miss that on every death row in this country the statistics are out of whack. On every death row minorities are grossly overrepresented, given general population patterns.

Of course, it is not just the defendant's race that counts; it is also the race of the victim that heavily determines who ends up on the row. When I was in Alabama, more than 80 percent of the folks on the row--and I suspect this is still true--were there for killing white people. Yet in the overwhelming majority of cases, homicide victims in Alabama are black people. This indicates whose lives society values, and whose lives it does not value.

Further, even though it is absolutely important to understand that it is African Americans who still bear the brunt of capital injustice in this country, it is also important to realize that it has not just been African Americans and much, much more important to realize that it has not just been in the South where this injustice has occurred.

If you go through a list of the folks who were executed in New York over the years, you can recognize certain phases. During one period in this century, for instance, there was a run on executing Italians, then other immigrants.

In 19th-century New York City, of course, it was folks with names like mine who were going to the gallows. Today we have Charles Murray and Richard Herrnstein's racist bestseller The Bell Curve and other lame camouflage for racism and racism's damage. Back then, too, they made excuses for racial disparities.

Newspaper editor Horace Greeley openly opposed the death penalty. Nonetheless, he felt obliged to explain why the Irish were going to the hangman in disproportionate numbers. He claimed the Irish simply drank themselves into homicidal rages, and numerous hangings were the natural consequence. If we refuse to see the forest for the trees in today's death rows, we are doomed to attempt the same kind of excuse-making in 1999.

Just as racism is embedded in the history of the death penalty in this country, I think everybody who has defended capital cases knows that race is inherent in the dynamics of individual capital cases. In the penalty phase of a trial, as often as not, winning a life verdict instead of a death sentence means getting the jury to say: "There but for the grace of God go I."

Make no mistake. The defense aim is not to have the sentencing jury excuse the crime or to explain away what the defendant has done. The aim is, though, to forge some empathic link that can be a conduit for mercy. And whether it is the human condition or the American condition, it is nonetheless a fact that barriers of race and class prevent empathic connections. Even Supreme Court Justice Antonin Scalia acknowledged that racism and racial prejudice are simply inherent in the capital-justice system in this country: "The unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions, and [hence] prosecutorial decisions, is real, acknowledged in the decisions of this court, and ineradicable."

3 Human life is sacred.

I think for a Catholic the sacredness of human life means two things.

First, it means that you may not rope off some parts of humanity and selectively deny them human rights.

Of course, the church itself has committed this sin at times. At its best, though, the church has given witness to the universality of human rights and the sacredness of all human life: in the eighth century with the establishment of foundling hospitals as an alternative to infanticide; in the 15th century when Pope Pius II condemned the particularly brutal Portuguese slave trade; and in this century, today here in America, both with respect to the death penalty and the issue of abortion.

One need not ignore how the church has compromised its own credibility on abortion due to sexism in the church and its reluctance to confront it. And reasonable minds can differ about how exactly prolife ethics should translate into law. Nonetheless, honor the church for keeping alive an ethical dimension on the abortion issue, for reminding people it cannot simply be written off as a matter of turning the clock back on an unwanted pregnancy.

This witness is all the more important in our culture and in our market-driven world where pressures mount to measure human beings only by their utility. Workers are secure only so long as they are optimally profitable. Patients are more likely to hear about a right to assisted suicide than a right to medical care. And for all its feminist pretensions, the mass media constantly bombard young women with the message: "You're only as good as you are attractive. You're only as good as you are a source of pleasure."

The idea that the value of human beings derives simply from their usefulness, their economic value, or their pleasure-giving promise is horrific but pervasive. Our church deserves great credit for giving witness to a different view, one that emphasizes the inherent dignity of the human person, whether that person is born or unborn, sick or well, advantaged or poor, guilty or innocent.

Second, the sacredness of human life means that not only the lives of the executed are sacred but also the lives of the executioners. Catholicism is the 20th-century caretaker of the Natural Law tradition, and that tradition emphasizes that the greatest impact of immoral acts is not on the actee but on the actor. So what we do as moral actors shapes us, humanizes or dehumanizes us. And you can't miss the degree to which exercising the death penalty on a fellow human being warps and numbs those involved.

Spend some time around capital cases and you will be struck with the Orwellian doublespeak. A state attorney general will not be so direct to ask an appellate court to send an inmate to the electric chair; instead, the judges are asked to "allow this case to reach its just, final conclusion." An assistant prosecutor with an uneasy conscience will assure you that under her state's new death-penalty law there will not be an execution "in this century"--a rather unconsoling thought in 1999.

In a Northeastern region generally blessed with many fine judges and lawyers, a trial judge issued a written reprimand to a defense lawyer who, seeking more time to file motions, observed that, after all, the capital prosecutor "wants to kill my client." Such bluntness could make the courtroom a place in which the assistant district attorney was not "comfortable," the judge said.

On a higher level, the numbing and warping results in the refusal of some states to bar the execution of retarded inmates. It results in a U.S. Attorney General who personally opposes the death penalty in principle, yet has sought it in over 80 federal cases. It results in a Democratic president who works with a Republican Congress to gut the safeguard of federal habeas corpus for death-row inmates. It results in Florida's chief law-enforcement officer approving of electric-chair malfunctions as adding the risk of burning to deterrence.

The death penalty degrades us as a community. It fouls our ethical and spiritual ecology. It hobbles us as we try to become the first successful multiracial democracy in the history of the world. It inflames a society where too often our courts are theaters of spectacle rather than temples of justice and healing.

Most importantly, it belies the truth that every human person is a child of God and the kin of Christ.

RELATED ARTICLE: Anthony Porter, N05372

Anthony Porter, N05372, Menard Prison, Death Row, Chester, IL 62259. Anthony Porter was one of the 3,500 or so people in the United States who literally have "death" in their address. We all know that some day we will die, but Anthony was one of the few who have their date with death marked on a calendar.

It was 7 a.m., Monday, Sep. 21, 1998. Anthony was just two and a half days the live side of death--scheduled to be executed by injection by the state of Illinois just 60 hours later. As a member of the Illinois Coalition Against the Death Penalty visiting team, I had been assigned to visit him.

Anthony grew up in one of the coldest steel-and-concrete high-rise bunkers in America, Chicago's Robert Taylor Homes. The "pad" on Federal Street was home to him. As an African American from a single-parent home he had his odds stacked against him, especially during his trial for a capital offense. He had an IQ of 51.

I nervously walked down the corridor of the "condemned unit," as the state calls death row. Anthony was eating.

"I have some letters of support to give to you, Anthony."

He looked at me a little distrustfully at first After a pause I said, "I can come back; I don't want to disturb your breakfast."

"No, no," he finally said, rising. "Come on with it Let's do it"

Among the letters was one from Chicago Cardinal Francis George and another from the mother of one of the victims Anthony had allegedly killed in this double murder.

"Would you like to look these over on your own," I asked, "or would you like me to read them?"

"Yeah, yeah, why don't you just go ahead and read them? His response confirmed my belief that he could not read.

We stood shoulder to shoulder through the bars. The letter from the cardinal urged Illinois' then-Governor Jim Edgar to grant a stay of execution. He mentioned that there was no physical evidence--no gun, no DNA, no fingerprints--and the IQ of only 51.

The letter from Offie Lee Green, the mother of victim Marilyn Green, pleaded for the state not to kill Anthony. She said she did not believe that he killed her daughter and her daughter's boyfriend, Jerry Hillard. She explained why she was convinced that it was Marilyn's friend's boyfriend, Alstory Simon, who had committed the crime.

After I read the letters, Anthony asked me to read some affidavits from his case that he had in his possession. Reading them out loud, I learned some things about his case that I had not known. Several people had overheard Simon say that he killed the two, and someone had seen a man much taller than Anthony arguing with Jerry Hillard shortly before the murders.

The only evidence the state had against Anthony was a questionable eyewitness to these murders. (He subsequently signed an affidavit saying he had lied under police pressure.)

As we talked, I came to believe that Anthony really was innocent I felt so helpless. I wanted to assure him that he would not be executed, but I could not Yet there was some glimmer of hope because this very day the Illinois Supreme Court was hearing an appeal that could possibly grant Anthony a fitness hearing, and thus a stay of execution. That would buy him more time to uncover new evidence.

When I left, I looked Anthony in the eye and said: "I will see you again."

At about 3:30 p.m. that same day we began our seven-hour trek back to Chicago. I alternately felt hope and doom. We listened to the radio for some word on the decision. At 7:30 we stopped for gas. I called my wife, Donna.

"So did you hear the news?" she asked.

"No," I replied, holding my breath.

All I needed to hear was the word "stay." Lots of eyebrows were raised in the travel store as I yelled "Yeah" jubilantly at the top of my lungs. I ran to the parking lot screaming.

Postscript: On Feb. 1, 1999, CBS Evening News showed a clip of Alstory Simon admitting that he shot both Jerry Hillard and Marilyn Green. Five days later, after 16 years on death row, Anthony Porter was released from Cook County Jail on his own recognizance. He became the 10th death-row inmate Illinois has released as innocent since the reinstitution of capital punishment in the 1970s; two more have been released after Porter.

--Charles Carney

KEVIN DOYLE heads the Capital Defender Office in New York. The views expressed in this article, however, are his personal ones.