Wrongful death

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Article Ethic of Life
"Honorable people have disagreed about the justice of executing the guilty," Sister Helen Prejean, C.S.J. writes in her new book The Death of Innocents (Random House, 2005), "but can anyone argue about the justice of executing the innocent?"

Twelve years after her first book, Dead Man Walking (Random), became a surprise bestseller and 10 years after the release of the award-winning movie based on that book, Prejean has written a sequel that once again turns the spotlight on the practice of capital punishment in the United States.

Prejean has continued to accompany death row inmates as a spiritual adviser and in this book tells the stories of two of those men, who, she believes, were executed despite having been innocent. One of those two cases became a cause célèbre in Italy and may have helped bring about a shift in the Catholic Church's position on the death penalty.

As she brings her readers up close to a reality most Americans know little about, Prejean paints a disturbing portrait of our deeply flawed criminal justice system. She takes on the pro-death penalty climate in the Southern "death belt" states-particularly in her home state of Louisiana, where most people "accept capital punishment with the air they breathe and the mosquitoes they swat." And she takes a hard look both at the constitutional issues and at the responsibility of Christians to join the fight to abolish capital punishment.

Prejean applauds the recent strengthening of the Catholic Church's position against capital punishment and on this issue sees a "wave of fresh moral energy pulsing through the Catholic Church."

Your new book recounts the stories of two people whom you accompanied on death row all the way to their execution and whom you believe to have been wrongfully executed. Tell us about them.

The first one is Dobie Gillis Williams, whom I accompanied on death row for seven years. He was an African American man with an IQ of 65-below the score of 70, which equals mental retardation. His was a classic case of a young black man wrongfully convicted by an all-white jury.

Dobie lived in the little town of Many, Louisiana, and his case involved the killing of a white woman in 1984. The main eyewitness was the woman's husband, who said that his wife's dying words were, "A black man is killing me, and he's jumping out the bathroom window." That led to Dobie being rounded up by the police.

Poor Dobie's defense was terrible. His lawyer, who was later disbarred, did nothing for him. He didn't do any independent forensic testing and let the prosecutor's far-fetched scenario of the crime stand uncontested.

The woman had been stabbed eight times while she was sitting on the toilet; there were bloodstains everywhere. When the post-conviction lawyers 13 years later brought in a top-notch bloodstain analyst, he was able to show that no one could have gotten out through that small bathroom window-the size of a microwave oven-without leaving a smudge of that blood. And because they found none of the victim's blood on his clothes, the prosecution claimed that Dobie must have crawled in and jumped out nude.

To me it's like a perverse story of Job: "Naked I came into this world and naked I left" (Job 1:21). Naked he came in through this incredibly small window, waited behind the bathroom door, fortuitously happened to find a steak knife on the back of the toilet, the woman came in, he stabbed her, and then he supposedly stood on her while she was still on the toilet-because they couldn't find footprints on the toilet seat-to get out of the same tiny window without ever touching it. It's a completely crazy scenario, but his all-white jury convicted him.

What's the second story?

It's Joseph O'Dell from Virginia, who spent 12 years on death row pleading for one full hearing of all the evidence in his case. His conviction involved a surprise jailhouse snitch, who has since recanted his testimony.

His case in particular highlights the legalisms that happen in courts that prevent people from getting their cases reviewed. The epigraph that opens my book are the words of Jesus: "Woe to you scribes.... You strain out a gnat but swallow a camel.... [You] have neglected the weightier matters of justice and mercy" (Matt. 23:23-24). To me that's a fitting description of the attitude of the Virginia courts in Joe's case.

Because Joseph O'Dell defended himself, he closed many avenues for later appeal when he didn't raise issues in the original trial. Thus the raw material he had when he later filed appeals was very limited. If the state supreme court makes no decision about your case, you have nothing to present to the federal courts of appeal. And in his case the Virginia Supreme Court summarily refused to look at anything at all in his petition simply because the lawyers wrote one wrong word on their petition.

What did they write that was wrong?

On the title page they typed "Notice of Appeal" instead of "Petition for Appeal," so the court refused to look at any of the issues. Joseph had to get a court to review what had happened at the trial and to order the advanced DNA testing that had become possible and that could prove his innocence.

In his case, a woman, Helen Schartner, had been murdered after she left a bar. Joseph O'Dell happened to be in the same bar that night, and the prosecutors based their whole case on that. She had been strangled, beaten, and raped.

O'Dell kept asking for access to the rape kit to get the new DNA test done, but Virginia refused. In the end Virginia killed him and then destroyed the rape kit and the evidence so they could no longer be tested.

Didn't his case attract a lot of international attention?

It became a huge drama in Italy. The Italian involvement in Joe's case was amazing, and it came about through the efforts of the woman who had also pulled me into it. Lori Urs was a volunteer at Centurion Ministries, which works to free innocent people from prison, and she used every ounce of her energy to try to get justice for Joe.

A member of the human rights commission of the Italian parliament got involved, and the parliament started protesting to Virginia. Then the mayor of Palermo came and visited Joseph and made him an honorary citizen of his city. The mayor promised him that if Virginia executed him, they would never allow him to be buried on Virginia soil but would bring his body over and give him a burial in Palermo.

On July 23, 1997, 5 million Italians stayed awake during the night of Joseph's execution to find out what would happen to him. And after that Lori and I accompanied his body to Palermo, where he was buried.

Even the pope got involved and so did Mother Teresa.

What was the pope's involvement?

When Lori went to Italy in January 1997, she brought a letter from me to the pope. A friend of mine in the Vatican told me that the pope read every word.

What did you tell the pope in your letter?

Ever since I first accompanied a man to his execution in 1984, I had wanted to speak to the pope about the death penalty.

First I thanked him for speaking out on behalf of Joseph O'Dell. Then I shared with him my personal experience of accompanying people on death row and walking with them on their way to execution. I said, when you're walking with someone who has been rendered totally defenseless and he says to you, "Sister, please pray God holds up my legs," there is no dignity in that. From seeing the practice of the death penalty up close, I have no doubt that it is torture.

I wrote that some of what he had said in the encyclical Evangelium Vitae had been wonderful and had pushed the death penalty to the edge. But I also told him that the encyclical's continuing upholding of the state's right to execute in cases of "absolute necessity" had left a big loophole.

I told him how the Catholic district attorney in New Orleans had said that today in the United States the death penalty was all too rare, and because we couldn't get enough death penalties, it was always an "absolute necessity." The truth is, any government that wants to kill people is going to call its imposition an absolute necessity.

I said I prayed for the day when Catholic opposition to the death penalty would be unequivocal.

Did you get a response?

A week after the pope received my letter, Cardinal Joseph Ratzinger made an announcement that a change would be made in the Catechism of the Catholic Church to reflect "recent progress in doctrine" about the death penalty. It was announced on Jan. 29, 1997 and promulgated later that year.

As a result of this change the Catholic Church now has entered into a principled position against capital punishment, something we did not have before.

What specifically does this change in church teaching consist of?

In the revision of the catechism, the Vatican eliminated the criterion the church had used for 1,700 years, which had permitted capital punishment for "grave or grievous crimes." That's the linchpin because any time a government executes it claims it's for a grave crime. In Nigeria it's a capital crime if you commit adultery, in Malaysia if you carry drugs.

Cutting that condition out of the catechism means that now no matter how grave the crime or how many people were killed or who did the killing-those conditions are not what determines whether or not a state has a right to execute someone.

But doesn't the church still keep a loophole for the death penalty when it says that cases in which it can be legitimately applied are "very rare, if not practically nonexistent"?

No. The pope's encyclical Evangelium Vitae came out in 1995. It reflected his thinking at that moment. The catechism was changed in 1997, and its change is now on the books as the church's official teaching. Even though you have those words "rare, if not practically nonexistent," if the very criterion on which that justification stood is that it has to be for a grave or grievous crime and that's removed, then you cannot think of an instance in which it could be applied. And that means we now have a principled opposition to the death penalty.

And even though death penalty advocates and theologians still want to hold on to the church's traditional teaching of a state's right to practice capital punishment, the pope, when he came to St. Louis in 1999, didn't equivocate. He could not have been clearer. He said, "Modern society has the means of protecting itself without definitively denying criminals the chance to reform." He added that the death penalty is "both cruel and unnecessary."

The pope has pointed out that if you execute someone, the chance for restoration, for redemption, is cut off. The more I've reflected on this the more I see the arrogance in our society saying: We have the mind of God, and we have decided that you've gone as far in your personal and spiritual growth as you're going to go, so it's time for you to meet God.

In your book you take on President Bush for his handling of the death penalty. What's the issue?

During his six years as governor of Texas, George W. Bush presided over 152 executions-more than any other governor in the recent history of the United States. When asked about that he said that he always reviewed each case very carefully. He claimed that this careful process was fail-safe and that as a result he had no doubt that all those executed on his watch were guilty of the crimes they had been convicted of.

But when an enterprising journalist, through the Freedom of Information Act, got the clemency memos Bush's then-legal counsel Alberto Gonzales actually put before him, they were extremely cursory and routinely rehashed prosecution arguments, leaving out issues of potential innocence raised by defense lawyers. They would just have a pro forma 15- to 30-minute meeting.

The most famous case on Bush's watch was that of Karla Faye Tucker, the born-again woman who had turned her life around on death row. In his autobiography Bush claimed that his decision about her clemency had hung over him like a crushing weight. But in an unguarded moment a year later, he revealed his true feelings to a journalist.

The journalist had asked Bush about an interview Larry King had conducted with Tucker before her execution, and Bush turned around in his car seat-he was in the front, and the journalist was in the back-and pursed his lips mocking her: "Oh, please, please, don't kill me." Here he was mimicking a woman whom he had had executed.

Most people want to believe that our criminal justice system provides enough checks and balances to make sure innocent people are not executed. Can we trust that that is true?

No. Over the past few years, DNA testing has provided tangible evidence that our criminal justice system is seriously flawed. Wrongful convictions are far from rare.

The Innocence Project at the Benjamin N. Cardozo School of Law in New York currently lists 156 wrongfully convicted people in the country who have been exonerated and set free as a result of the kind of advanced DNA testing that Virginia refused to grant Joseph O'Dell access to; 118 people have been exonerated and released from death row.

When you look at how the death penalty is applied across the country, what are you most concerned about?

First, there is a huge regional disparity in the practice of the death penalty. Since the reinstatement of the death penalty in 1976, more than 80 percent of the executions have taken place in the former slave states of the South.

Today 38 states have the death penalty on the books. But since 2001-as reports of wrongful convictions have appeared on people's TV screens-there has been a rapid decline of both death sentences and actual executions in the rest of the country, but not in the southern states. Texas alone has done almost half of all executions in recent years.

How can 50 states, each with the same Constitution and Supreme Court rulings, have such great differences on the death penalty? Apparently who is subject to the death penalty is determined largely by "local culture." We have "Equal Justice Under the Law" emblazoned on the front of the Supreme Court, but that doesn't mean it's a reality.

It reminds you of the days when there was racial segregation. We couldn't just leave it up to the states to practice equal justice under the law. "Separate but equal" had been going on for a long, long time, and it took a Supreme Court decision to finally change that.

We have prosecutors in Louisiana who actually give each other these behind-the-scenes, atta-boy, pat-on-the-back awards when they get a death penalty. They're called the "Louisiana Prick Award," and they show the state bird, the pelican, flying with a hypodermic needle in its talons. Prosecutors joke with each other and brag about how many prick awards they got.

Why does the criminal justice system in Texas produce so many more executions?

One difference is the way defense attorneys get appointed in Texas. Pro-death-penalty judges often pick particular defense attorneys for their capital cases; they're usually overworked, underpaid, and some of them are known for getting death-penalty cases.

That's why you hear these horror stories about defense lawyers in Texas sleeping during the trial, being intoxicated or on drugs, and quite literally doing nothing for their clients.

I always thought there were two places especially where people told the truth. One was church and the other was the courthouse. But in order for truth to come out at trial, you have to have a full adversarial system where the prosecution presents evidence and the defense presents evidence. You really have to have an equal match in the give and take to come to the truth.

But far too often people like Dobie Williams and Joseph O'Dell have no effective defense. As Joe later recounted, his defending himself against the prosecutors was like the high school varsity team playing against the L.A. Rams.

Poor people are the ones selected for the death penalty because poor people get a poor defense.

Wrongful convictions often involve prosecutorial misconduct. Whenever prosecutors come up with exculpatory evidence, they're supposed to turn it over to the defense, but they do that at their whim. And they're never censored or held accountable if they don't do that.

How much of a difference can a good, effective defense lawyer make in a capital case?

Look at Colorado. Its office of the State Public Defender is one of the best public defender systems in the country. The legislature funds it out of a central fund, and it's staffed with an impressive, well-trained group of dedicated professionals with an aggressive focus on capital cases.

Over the past 10, 15 years, Colorado prosecutors have gone for the death penalty in more than 100 cases. But how many people are on death row in Colorado? One. That's a testament to the work of their public defenders.

My heart goes out to American citizens called to play God when they serve on juries in capital cases. Often they don't hear all the facts or the mitigating circumstances, but still they have to decide if this person should live or die.

I think we've reached a point where we simply have to say: Take death off the table, just take it off. We can't handle it. The guidelines that the Supreme Court issued to supposedly help the death penalty become less arbitrary and capricious obviously are not working.

More and more people are now questioning our system. They know we're making mistakes. Some focus on fixing the system, but we can't fix it just with DNA testing. Giving everybody access to DNA testing is a good start, but it only applies to one in four homicides, cases with biological evidence. The one thing that would really go a long way toward fixing it is if we built a structure where defense is as strong as prosecution.

How does race continue to play into the death penalty?

An in-depth study conducted in the 1980s documented that people charged with killing whites had odds of being sentenced to death that were more than four times as high as people who had killed blacks. Even more striking, black defendants who had killed a white person were 22 times more likely to receive the death penalty than black defendants who had killed another black person.

That racial bias remains in effect today. In 2004 only 12 percent of those executed were convicted of killing a black person, even though 50 percent of murder victims are black.

But even though the 1987 Supreme Court decision McCleskey v. Kemp acknowledged racial bias in the administration of the death penalty, it went on to legitimize it as an "inevitable" part of the criminal justice system. The court claimed it would be too disruptive to deal with the racism. That's atrocious.

When you give talks around the country, how do people respond to your message?

The response I get from ordinary people is my greatest hope. That's why I've been getting on airplanes for the past 20 years. In my heart I'm a religious educator, and I know that people have to be brought on a journey.

In our culture we have legitimized vengeance as a holy and good thing. "Make my day," getting even-those are the messages of our culture. To move over to the gospel of Jesus, you have to take people through that journey step by step, and you do it through stories. How many people pore over the catechism before they go to work every day? The gospel has to come alive in your heart.

I've seen people's stricken faces when they hear and reflect on these stories and through them on the reality of the death penalty, often for the first time. They come up after my talks to get their book signed and say, "I had no idea."

When I'm with Catholic audiences, I emphasize how this is a quintessential gospel issue. Our culture tells us that we have to choose sides, that we're either on the side of the perpetrator and his or her human rights or on the side of the victim, but that we can't be on both sides.

But the cross of Jesus to me symbolizes reconciliation. It means that we have to embrace the dignity of those on both sides and stand with both of themthey're the two arms of the cross. Reconciliation pulls together what appear to be polar opposites in the compassionate healing presence of Jesus.

This article appeared in the Apri 2005 issue of U.S. Catholic magazine (Vol. 70, No 4, pages. 28-32).