Sonny's Corner: Debating the Death Penalty - Again, Part Two


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Sonny Foster"Sonny's Corner" is a regular column in Prairie Fire, featuring commentary on civil rights and justice issues. Our friend and Omaha colleague, Joseph P. "Sonny" Foster, died suddenly at age 54 in August 2005. He left an uncompleted agenda, as did many of our civil rights and justice mentors and heroes. We shall attempt to move forward on that unfinished agenda through this column.

By Fran Kaye

The first part of this essay, published in the preceding number of Prairie Fire, dealt with the “practical” arguments against the death penalty as put forward in the Judiciary Committee hearing of March 13, 2013. Part two continues with the personal arguments of both innocence and loss.

While we were sitting in Hearing Room 1113, listening to the different speakers, Maryland’s bill to abolish the death penalty was making its way through the state house, en route to successful enactment. Maryland has become the sixth state in six years to do away with capital punishment. Their campaign was spearheaded by Kirk Bloodsworth, the first man in the U.S. to be exonerated and freed from death row by DNA evidence. It’s hard not to be riveted by the nightmare tale of someone condemned to death for a crime he did not commit, with which he had no substantial connection. Curtis McCarty has just as frightening a tale, one he has told many times now to Nebraska audiences. Once he had been one of many 20-somethings at loose ends, attending community college, working, hanging out. A young woman who was in the same loose ends was murdered, and Curtis, like her other male friends and acquaintances eager to solve the crime, voluntarily gave the police a blood sample. A quick analysis determined it was not his blood at the crime scene. But as the investigation dragged on, with no leads, the police became impatient with his attitude. They tried to pressure him to tell them more, but he had nothing to tell. An overeager pathologist whited out her first finding that his blood was not at the scene and typed a fabricated match over the white-out. In 1986 Curtis McCarty was sentenced to death by the State of Oklahoma. He spent 22 years in prison, much of it on death row, until he was exonerated by DNA evidence unearthed by the Innocence Project.

As Nebraska attorney Amy Miller, an Innocence Project volunteer, testified, Bloodsworth and McCarty are among 143 persons exonerated from death rows across the United States. Far from proving that the system works, their freedom was gained in spite of the system, in opposition to the system through the work of volunteer students, journalists and attorneys, who do the work of proving innocence on their own time and their own dime. A ragtag coterie of volunteers that for a pittance proves without doubt the innocence of 143 persons convicted at $3 million a pop? Americans, according to an NPR story on March 21, 2013, ultimately do not favor stories couched in the rhetoric of “the common good.” Rather, we rally to the John Wayne image of the individual hero fighting for freedom. And it is hard not to be moved by Curtis’s story of 23 hours a day in a cell in the underground maximum security of Oklahoma’s death row, year in and year out. All for being a young guy who didn’t know what he wanted to be when he grew up and had the misfortune to have hung out with a young woman who was murdered. Every American knows such a young man, perhaps was—or is—such a young man. When I first began going to hearings about abolishing the death penalty in Nebraska, Curtis was still in high school. And during the many years that Nebraska senators—and Oklahoma legislators—affirmed that the system worked, Curtis was entombed alive. Listening to this gentle, soft-spoken middle-aged man, no senator could possibly say the system worked. Curtis pointed out that it is unfair of society to put on law enforcement the terrible burden of being completely correct in their investigations.

They cannot attain any more perfection than the rest of us, and it is unfair to make them tools in the taking of an innocent human life.

I am grateful to Curtis for speaking of his ordeal. I am grateful to Amy, his tag-team partner, who backs him up with statistics. Not all murders provide DNA evidence for either exoneration or conviction of perpetrators. But there are other reasons for false conviction that can also be challenged. Amy listed the top four: eyewitness misidentification, unsound forensics, false confessions and the testimony of snitches. Nearly at the end of my semester, I am still capable of mixing up my students, of forgetting whether it was Alison or Emily who told me her paper would be late because her printer wasn’t cooperating. I wouldn’t trust myself to provide reliable eyewitness identification. When I was a kid, I listened to a radio show called “Suspense.” In one episode I have always remembered, a young woman is raped and her husband decides to take revenge. They drive around the city, looking for the perpetrator. “That’s him!” the young woman cries. “Are you sure?” “Yes, absolutely!” And so the young man kills the rapist, without hesitation and without compunction. They are riding home, the man grim but satisfied. And then they pass another pedestrian. “That’s him!” Stress does not necessarily make someone better at identification.

“Junk science,” as Amy called it, also leads to convictions. Five or six years ago at a forum at the law college, a former prosecutor from Texas talked about two arson cases, prosecuted in all good faith, that relied on burn evidence, one on the pattern of crackling glass and one on the way a fire had burned down a hallway. In both cases it turned out that the “expert witness” was simply wrong. It does not require an accelerant to crackle glass. The fire was not arson. And fires do burn capriciously. Flames do skip down hallways, so the defendant’s story of how he walked through the house is perfectly plausible. In both cases the “experts” were basically self-taught and just plain wrong. Yet both defendants were convicted of murder—and one executed—in what better science explained as accidental fires. And it was those events that turned the death penalty prosecutor into an anti-death penalty speaker.

False confessions seem inexplicable. Why in the world would anyone confess to a crime he hadn’t committed? Even though the Beatrice Six were completely exonerated in a murder for which five out of six confessed, many people cannot quite believe that they were really innocent. Even one of the women convicted could scarcely believe her own innocence after so many years of inhabiting her supposed guilt. In September 1994, Nebraska executed Wili Otey for the murder of Jane McManus. I remember friends who had carefully examined his long, rambling confession, including the man who, working on Otey’s behalf, tried to fact check the confession. And I remember his telling a group opposing the execution that the confession seems to have included not only the murder but other crimes of which the investigator could find no record, crimes invented, perhaps, to curry favor with interrogators. After all, Otey, then a young and vulnerable man in a strange place, had been threatened with the death penalty if he did not confess. The abstract threat of capital punishment does not serve to deter murder, but the concrete threat of one’s own execution can extort false confessions.

Even gold standard DNA evidence can be wrong if the specimen has been handled carelessly or contaminated, or if an overeager investigator helps out his case by planting or falsifying evidence. All of this disturbing evidence of false identification, false science, false confessions and false evidence has become public knowledge since Ernie Chambers started sponsoring bills to execute the death penalty in Nebraska. Even the most ardent champions of capital punishment have to think a bit differently than they did 18 or 34 years ago.

Besides the exonerated, wrongly sentenced to death rows, another line of argument that sways former proponents of state executions is the testimony that comes from family members who have lost a loved one to murder and are opposed to inflicting such suffering on another family. In Nebraska the family of Janet Messner fought for years, ultimately successfully, to get her killer off death row. Bud Welsch, who lost his daughter in the Oklahoma City bombing, came to Nebraska to testify against the death penalty. But this year the woman carrying the burden of speaking for murder victims’ families was Miriam Thimm Kelle, who lost her brother Jim, James Thimm, to murder 25 years ago. I remember Miriam testifying at the hearing four years ago, with her then 21-year-old son standing behind her, a head taller than his mom and still a little gawky. She’d been pregnant with him when Jim was killed, she said. And the prosecutors had promised the family closure, so she did not say anything about the death sentence then, even though it felt wrong to her, a nurse, whose role is to heal people. But what kind of closure was it when an unborn child had grown to be a man? The death penalty was a cruel hoax that did not give closure to the family but only raked up prurient interest in the circumstances of her brother’s death and forced his family to go through the agony again. A few weeks later that year, I sat in the north gallery of the Unicameral, directly across from Miriam, sitting in the south gallery. I watched her face, a study in how to turn yourself to stone, as one of the more vehement pro-death penalty senators, standing just below her and obviously completely oblivious to her presence, rehearsed the gory details of Jim’s death, calling for justice in the name of their family and arrogantly causing her inexcusable pain and grief. This year Miriam was there again, in the front row, ready to testify. We talked a little as we waited for the hearing to begin, of my dog, rescued from her hometown of Beatrice, of childhood pet bunnies we remembered. When Miriam rose to speak, she loosed all the pain she had contained earlier, in the presence of that death-loving senator. Closure was a bitter joke. Justice was a bitter joke. All that capital punishment brought to her family was an endless rehash that focused on the murderer and paid no real heed to her brother, Jim. A man. With a name and a family. Not a nameless tidbit for vindictive rhetoric. And Miriam cried. I have never seen her cry before. No, there is no healing in killing. Jim’s murderer can safely die of old age in prison obscurity.

Part three will look at new sources of opposition to the death penalty and conclude this series.

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