Innocence isn't everything.
Executed on a Technicality: Lethal Injustice on America's Death Row By David R. Dow Beacon Press. 238 pages. $24.95.
It's hard not to love Sister Helen Prejean. This member of the Sisters of St. Joseph of Medaille, who was basically unknown before 1993, spent two years composing Dead Man Walking. In her new book, she confesses that during this period of seclusion and daily writing, "I felt I wasn't doing real work like the other sisters, going out into their ministries each day." But when Random House released Dead Man Walking, the book climbed to the top of The New York Times bestseller list, received a nomination for a Pulitzer Prize, and led a breathy Susan Sarandon to portray Prejean in a film version of the book.
The combined popularity of the book and the movie heated up a debate on the death penalty that had been frozen for decades. "I didn't know a book could have such power," writes Prejean. Since that time, Prejean has been in demand as a speaker. She also seems to have influenced the Pope's historic change in the stance of the Catholic Church on capital punishment. She is an American reformer and religious hero in the tradition of Benjamin Rush, Dorothy Day, and Martin Luther King Jr.
In the twelve years since the publication of Dead Man Walking, the U.S. Supreme Court declared unconstitutional the executions of retarded inmates and those who committed their crimes before the age of eighteen.
If Dead Man Walking started people talking, they certainly have not stopped. Northwestern University Professor David Protess and his team of journalism students helped to release men from the state of Illinois prison system, where they were serving time for crimes they did not commit. Among the released was Anthony Porter, who was due to be executed two days after he left his cell. In response to the uncertainties raised by the students and by a powerhouse investigative report in the Chicago Tribune that questioned the legitimacy of many more capital convictions in Illinois, departing Republican Governor George Ryan pardoned four and commuted the sentences of the remaining 167 people on death row.
The rise of DNA testing has also helped the abolitionist cause, as lawyers with the Innocence Project have proven beyond a doubt that our legal system sometimes incarcerates the wrong people. States are slowing the rate of executions, a phenomenon some attribute to the public's concerns that we may be executing people who did not commit the crimes we kill them for.
Prejean's new book responds to such distress, centering on her belief that she has witnessed the executions of two innocent men. "As in Dead Man Walking," she writes, "this is my eyewitness account of accompanying two men to execution--but with one huge difference: I believe that the two men I tell about here--Dobie Gillis Williams and Joseph Roger O'Dell--were innocent." This contrasts with her approach in Dead Man Walking, where she took the guilt of the criminal as her point of departure.
Unfortunately, Prejean places so much emphasis on the innocence of Williams and O'Dell that many of her arguments against the death penalty hinge on readers accepting that Prejean is correct in her claim of innocence. I, for one, am not sure she is.
Prejean begins The Death of Innocents with Williams's story. "When I first met him I was struck by his name, Dobie Gillis, and then when I heard he had a brother named John Boy, another TV character, I knew for sure his mama must like to watch a lot of TV," she writes in the opening sentence of chapter one. "Betty Williams, Dobie Williams's mama, is here now in the death house of the Louisiana State Penitentiary, a terrible place for a mama to be."
One of the great draws of Prejean's writing--both here and in Dead Man Walking--is the access it provides to the human qualities most of us never get to see in the people on death row. Prejean lets us know the murderers (or, as she believes, the falsely accused murderers), and reveals that they are human beings who deserve dignity. "When Dobie turned down the warden's invitation to share his last meal, he said, 'I ain't going to eat with those people. It's not like, you know, real fellowship. When they finish eating they're going to help kill me,' "she writes.
Williams had "an IQ of 65, well below the score of 70 that indicates mental retardation," writes Prejean. But his execution happened before the 2002 Supreme Court decision that declared capital punishment of mentally retarded people to be unconstitutional.
Williams, an inmate of Camp Beauregard, a Louisiana prison where he was serving time for robbery, went home to the small town of Many, Louisiana, one weekend--his reward for good behavior. In the same town, on the same weekend, someone stabbed Sonja Merritt Knippers while she was in her bathroom. Her husband claimed that she cried out, "A black man is killing me." The police rounded up three black men. One of them was Williams.
There are many problems with the case against Dobie Gillis Williams. It was based on circumstantial evidence, some of it questionable, and police testimony indicating that Williams confessed to the crime. Police examined Williams's clothing while failing to examine the clothing worn by Sonja Knippers's husband, Herb, the only other person in the house. Williams's lawyer failed to raise critical objections that would have given Williams access to an appeal. He also neglected to hire a forensic expert to examine the circumstantial evidence used against Williams. That same lawyer later lost his license because of unethical behavior. Williams was convicted by a jury made up solely of white people. The trial took five days.
A later appeal based on racial discrimination failed because Williams's lawyer did not object to the dominance of white people on the jury. "I remember how shocked I was when I first discovered this procedure-over-justice mentality, even in life-and-death cases," writes Prejean. "I learned early on that an inept lawyer can get you killed."
But there are contradictions in the story about Williams. For instance, a DNA test that the prosecutor requested after a bloodstain analysis expert raised questions about Williams's guilt indicated that Williams's blood was on the curtain of the bathroom where Knippers was stabbed. The defense hired its own experts to critique the DNA analysis and determined the company had used "sloppy technique, poor quality controls, subjective interpretation." All of these things may be true, but the fact remains that a DNA test was not in Williams's favor.
Prejean tells Joseph O'Dell's story primarily through O'Dell's own writings and the eyes of Lori Urs, a young woman who contacts O'Dell through Centurion Ministries and who ends up marrying him on the afternoon of his execution. Urs and Prejean believe that O'Dell's trial for the murder, rape, and sodomy of Helen Schartner was damaged because details that could have exonerated him--including, among other things, a possible murder weapon and the testimony of the man who discovered Schartner's body--were not admitted. One critical piece of evidence against him was the testimony of a jailhouse snitch who later retracted his statement.
Prejean has gathered together some disturbing questions; the trouble is that she insists the questions are answers. And that's too bad because, while the questions do not necessarily prove innocence, they are extraordinarily important. The lawyer who represents his client poorly, the all-white jury, the circumstantial evidence that points in several directions-all suggest pervasive rot in the timbers of the system. Whether or not Williams and O'Dell were innocent, that unsoundness remains.
After the stories of Williams and O'Dell, which provide much of the energy in The Death of Innocents, the structure unravels. This is a book that contains too much: extensive legal arguments, accounts of Prejean's activism, recycled material from Dead Man Walking, a chronicle of that book's success, and descriptions of death penalty developments in the last twelve years. There are only four chapters of this book, and Prejean devotes an entire one to wrangling with Justice Antonin Scalia. Here she gets just a tad too personal. When she runs into Scalia in the New Orleans airport, she immediately guesses correctly that he has been duck hunting with her brother (the two, oddly, are longtime friends). She tells the reader of an insult Scalia passed on when he heard Dead Man Walking was being made into a movie ("Just what we need, another anti-death penalty film by a bunch of liberals"). Then she walks up to Scalia and informs him she plans to take him on in the book she is writing.
Part of the reason for her venom appears to be religion. Like Prejean, Scalia is Catholic, but one who believes in a vengeful God. He has also decided to disagree with the Catholic Church's new stance against capital punishment.
For Prejean, however, her faith demands opposition to the death penalty. "Since 1 had discovered that the Gospel of Jesus inaugurated a radically new community that included everybody and where no person was considered to be 'outside the pale' of humanness, my soul expanded and i felt more compassion toward all sorts of people, even criminals, and even toward the ravaged Earth itself and species threatened daily with extinction," she writes.
Prejean vows to keep working for an end to the death penalty, and that is good news. Our country desperately needs her active sympathy.
David Dow is a death penalty I lawyer in Texas, a professor of law at the University of Houston, and the director of the Texas Innocence Network. Still, he has some choice words to say about the overemphasis on the word "innocence" in connection with the death penalty. "In the modern death penalty debate, everyone is obsessed with innocence," Dow writes. "People wonder: Why do innocent men end up on death row? How many have there been? How many have been executed? What can we do to make sure this does not happen again? The death penalty debate, such as it is, is not about the death penalty at all. It is about how to perfect the death penalty."
The title of Dow's book, Executed on a Technicality, plays off the common acidic phrase "released on a technicality," which implies that a dangerous criminal was let go not because of innocence but because of red tape, bad lawyers, and misfiled paperwork. Dow's title indicates that people on death row are dying not just for their crimes but for foul-ups in our criminal justice system. "I know many murderers, and most of them will be executed," Dow writes. "They will be executed not so much for what they have done, but because their lawyers failed them or because the courts refused to get involved. They will be executed not simply because they committed murder, but for technical reasons, reasons that I thought were not supposed to matter. That is the first lesson I learned as a death penalty lawyer."
Dow's book traverses some of the same ground as Prejean's, but he doesn't tell his readers that his subjects are innocent. He suggests that most of them are guilty of the murders they are accused of. He does not downplay the horrific nature of murder, nor the devastation it can wreak on families. However, he has a powerful analysis to make of what we do to murderers. For instance, there are many more murderers in the United States than there are murderers on death row. What determines whether someone dies for a murder? It's not the atrociousness of the crime, notes Dow.
Sometimes, the statistics suggest, the factor is race of the murder victim. "In Texas, on a death row of more than 400 men, there was not a single white murderer whose victim was black until two men who chained James Byrd to the back of a pickup and dragged him to his death arrived there in 1999," writes Dow. He shows that the people executed in America also die because of inept lawyers--who snort cocaine during trial, or who file faulty paperwork--and because courts have tired of hearing death penalty appeals. That injustice or arbitrariness, allowing some murderers to live while others do not, is Dow's subject.
In 1972, the Supreme Court decided in Furman v. Georgia that capital punishment was unconstitutional precisely because it was arbitrary and unjust. After a public backlash, the court overturned its own decision four years later. To describe American capital punishment today, Dow appropriates Supreme Court Justice Potter Stewart's observation in Furman that a capital conviction was like "being struck by lightning." Dow writes, "Lightning is still striking, but few people seem to care."
Dow proceeds to analyze case upon case, each an example of a lightning strike. For instance, murder defendant Carl Johnson had a public defender with a terrible record. "Every single one of his clients had ended up on death row," writes Dow. At Johnson's trial, the lawyer was asleep during jury selection. Johnson, says Dow, did commit murder. But he also deserved effective counsel.
"The test used to determine effectiveness, however, is not especially rigorous," writes Dove. "Lawyers who show up at trial drunk, who have sexual affairs with the spouse of the defendant they represent, who go through entire trials without raising a single objection, and who file one-page appellate briefs from city drunk tanks have all been deemed constitutionally competent." When Johnson issued an appeal on constitutional grounds, the court denied him relief based on his sleeping lawyer's failure to object during trial.
Part of the power of Dow's book derives from his own change of mind. In the opening pages, he writes that he once supported the death penalty. The accumulation of evidence that the death penalty was unjust forced him to reconsider. In reading about the cases, we trace his transformation. Dow ultimately concludes that the death penalty is not salvageable and should go.
"When representing men like the ones whose cases I have recounted in this book, I realized that the death penalty we have today is as arbitrary as it was a generation ago when the Supreme Court briefly condemned it as unconstitutional," he writes. "We do not have a fair system, and when you try over a period of thirty years to make a system fair and still you fail, it is time to conclude that the system cannot be made fair."
In the end, Dow does not dismiss the evidence that innocent people land on death row. "More than 140 men have been released from prison on the basis of DNA evidence," Dow writes. "This is an astonishing statistic that merits a pause: In nearly one-quarter of the cases where we can be scientifically certain that an innocent man was convicted, the wrongfully convicted inmate has confessed to the crime." This paradox shows the power of prosecutors to coerce confessions.
But Dow asks us to extend our sympathy to the guilty, whom our justice system also fails. Doing so is what Prejean would call a radical kind of compassion. As Dow's book suggests, it is in short supply these days.
Anne-Marie Cusac is the investigative reporter for The Progressive.
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|Title Annotation:||The Death of Innocents: An Eyewitness Account of Wrongful Executions by Sister Helen Prejean; Executed on a Technicality: Lethal Injustice on America's Death Row by David R. Dow|
|Article Type:||Book Review|
|Date:||Oct 1, 2005|
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