The American Prosecutor Made The Death Penalty A Rigged And Barbaric Game

The American Prosecutor Made The Death Penalty A Rigged And Barbaric Game

This is the ninth and final column in a nine-part series about Melissa Lucio and the State of Texas’ capital case against her. Read the first column here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here and the eighth here.

The “War of Currents” started as any public battle does. Thomas Edison and George Westinghouse were selling their own electrical systems around the country in typical commercial competition.

Then in 1888 the New York State Assembly decided that the electric chair would be the most humane way to carry out death sentences. Hanging, the legislators thought, was an inexact science in that it resulted in either immediate decapitation or drawn out strangulation.

The new statute amped up the conflict. Edison recommended that the state of New York utilize the electric chair for the country’s first execution and employ Westinghouse’s alternating current system to power it. Edison was hardly ceding ground to a competitor; on the contrary, he wanted the public to associate alternating current systems with killing and view his direct current as clean, contained, and directed toward the preservation of life. He electrocuted dogs to advertise just what he meant.

First up to the chair was William Kemmler; he’d killed his common law wife with a hatchet. His capital trial lasted four days and he was sentenced to death three days after that -- only once the state elicited expert testimony from the Wizard of Menlo Park himself, who promised that his own direct current system wouldn’t affect a condemned man’s nerves enough to dispatch him.

Kemmler endured years of appeals, his representation financed by Westinghouse in the hopes that reversal of the death warrant would forestop the marketing of his alternating current in the worst way. But alas Kemmler lost and prepared for the electric gallows, issuing this salvo:

"Gentlemen, I wish everyone all the good luck in the world. I believe I am going to a good place. The papers have been saying a lot of stuff that ain't so. That's all I have to say."

The first jolt, a 17-second long banger, didn’t kill him, though. The next one lasted over a minute and cooked Kemmler. The smell of roasting human flesh drove the prosecutor from the room.

The Edison-Westinghouse feud tells us most of what we need to know about the death penalty; there’s something more important than the souls condemned to die: competitive advantage. The contest between two parties invests them in winning so much that they’ll descend to any moral depths to prevail.

Sentenced to die for the murder of five people at a Wendy’s restaurant where he once worked, John Taylor was the last person on New York’s death row in 2007.

New York had executed exactly 695 people by that point, the last one 44 years earlier, in 1963. From 1972 to 1995, the state lacked a capital punishment scheme; former Gov. George Pataki resurrected it. In 2004, the New York Court of Appeals ruled the state’s death penalty statute was unconstitutional. The State Assembly, the same body that insisted that frying someone could be humane 100 years earlier, couldn’t agree on a capital punishment statute. The law knocked off the books by the seven member Court of Appeals has never been replaced.

And on September 10, 2007, before New York’s highest court in Albany, Attorney Kevin M. Doyle, then-head of the state Capital Defender Office, and Queens County District Attorney Richard Brown argued over whether the facts of Taylor’s case could cure the statute of its unconstitutionality. The Court of Appeals eventually decided it couldn’t and converted Taylor’s death to life about a month after oral argument.

But the most important issue presented in the Taylor briefs didn’t get aired that September Monday. Among the reasons to keep Taylor on death row, the Queens County District Attorney had claimed that a sanction of death “is not so different that the state courts should . . . suddenly discard the presumptions of good faith that apply to the actions of prosecutors . . . .

To Brown, extermination wasn’t a big enough deal not to take the state’s attorneys at their word.

“And no wonder,” Attorneys Doyle, Susan H. Salomon and Barry J. Fisher wrote in their Reply brief. “Better to invoke a deep, presumptive, and usually well-founded respect for New York’s prosecutors than to examine just how often the death penalty, under the 1995 statute, has displaced their sound judgment.

The attorney trio spent the next 40 pages of their 254 page brief demonstrating how district attorneys say a lot that ain’t so. They dissected the fourteen capital prosecutions that had commenced in New York between the death penalty’s return in 1995 to its demise at jurists’ hands in 2004. In each of the 14 cases, prosecutors violated laws and ethical norms to secure a win.

In one case, a prosecutor tried to turn the mitigating factor of a lack of a criminal record into an aggravating one, telling jurors: “in fact that the opposite is true. If the defendant had been convicted of crimes in the past, perhaps we can see some sort of explanation for the premeditated killing of [his victims].”

In another, the district attorney soured the fact that the defendant had saved a fellow corrections officer’s life by arguing that it should have made him more sensitive to people who don’t want to die.

In a third, the district attorney ignored a judicial order to bring in evidence that the comparative ballistic lead analysis on a bullet would prove what he intended to prove prior to bringing in the witness to the said analysis. But there was no such hearing on the bullet evidence; the district attorney charged ahead and presented the witness with a quickness. It was wise as she would be charged for perjuring herself in this same type of analysis four years later.

All too convincing is the attorneys’ example of Fox News' "Judge" Janine Pirro, Westchester County’s former district attorney, jumping in front of a news camera to declare the shooting of two local police officers a capital crime before she knew what had happened.

The same force that acted on the New York prosecutors in these 14 cases caused former Cameron County, Texas District Attorney Armando Villalobos to misrepresent Melissa Lucio’s life to the jury so he could snag a win. Lucio is first Hispanic woman sentenced to death in Texas in a highly publicized murder trial where her counsel and supporters contend not just that she’s innocent but that no crime occurred at all.

At this point, it’s probably not possible to cleave professional misconduct from the pursuit of the death penalty in any case. The late Supreme Court Justice Felix Frankfurter predicted this. “I am strongly against capital punishment. . . . When life is at hazard in a trial, it sensationalizes the whole thing almost unwittingly,” he said.

None of the New York prosecutors took false evidence and inserted it into the trial file contravening a judge’s order the way Villalobos did; they likely didn’t have such a decoy to carry out their dishonesty. Instead, they turned the mitigating factors into aggravating ones, inverting the evidence capable of keeping these defendants among the living, all the while courting public support. They turned a defendant's any advantage into a liability, even if through a lie.

The only solution to legal skullduggery in death-eligible cases is to abolish capital punishment. The death penalty can go out with a bang, be legislatively discarded like it was in Connecticut 10 years ago this month. Or it can leak out of the state’s prisons like New York, where one by one, the condemned vacate their cell-tombs, and walk into the assurance that, if someone takes their lives unnaturally, no judge pre-approved the hit.

Either way it goes, remember that neither bloodlust nor vengeance corrupted capital punishment; those dark thirsts started our nation’s tradition of court-sanctioned barbarism but they didn’t make it what it is. The nature of the public battle did that.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.


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