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CounterPunch
October
5, 2002
This One Will
Kill You
A Participant's Guide to the Death Penalty
by TED STEINBERG
How depressing it is to learn that there are guides
to almost everything imaginable today from college and open-heart
surgery to bass fishing, Disneyland, prostitution, funerals,
dog training, oil and gas deals, household staffing, tandem cycling
and even the Yellow Pages, but none to what is arguably the most
dire issue ever to come down life's bumpy road. There is a primer
to negotiating the U.S. Customs system (cleverly titled Howdy,
Duty!) but no manual for navigating the byzantine criminal
justice system-a handbook on venture capital, but none, so
far as I can tell, on capital punishment, advice on speedtraps,
but not on deathtraps. And yet, could any topic be more worthy
of practical guidance than the question of what to do when faced
with the ultimate penalty?
Because one clearly cannot engage in
self-help without first having a self to help, the following
reference work, unlike other specimens of this genre, is-forgive
the immodesty-one that you simply cannot live without.
Your Lawyer
Many readers have no doubt encountered
the troubling stories emanating from Texas about a court-appointed
lawyer sleeping through a capital trial. In deference to the
American bar, we must be careful to get our facts straight. Yes,
it is true that the attorney in question said that he liked to
proceed through trials like "greased lightning" without
bothering to take "a lot of notes." Yes, he also admitted
to the "habit" of shutting his eyes and leaning forward
while concentrating on legal matters. And yes, various jurors
and other courtroom personnel present at one trial somehow understood
this tendency as a sign of slumber.
In such situations, clients might try
holding a mirror beneath counsel's nose and look for any evidence
of moisture. If even the slightest cloud appears, rest assured
that you have landed adequate representation, as once explained
by an official of a southern trial lawyers association. If climatic
conditions in the courtroom interfere with this examination,
proceed immediately to the so-called pulse test, the standard
for counsel in the Lone Star state, as described by one knowledgeable
defense attorney. And if that test fails, you have no choice
but to file court papers  alleging narcoleptic incompetence,
as did one dissatisfied Texas customer, a claim, incidentally,
that was recently upheld on appeal. We can now all sleep
better.
Thus refreshed, the capitally accused
is at liberty to focus on some of the finer points of representation.
For example, is it better to put your life in the hands of a
utilities lawyer or a counselor who gave a bar, known as Kelly's
Keg, as his place of business? Few would probably be inclined
toward a real estate attorney, who in one death penalty case
offered an eighty-seven word closing argument that ended with
Bible verse but no mention of mercy. The open-minded, meanwhile,
would do well not to rule out a convicted felon sentenced to
community service and ordered to fulfill it by representing defendants
too poor to afford counsel on their own.
Admittedly, it is doubtful that anyone
would seek out a lawyer who, when asked to name some criminal
cases decided by any court in this country, responded with Miranda
and Dred Scott, the latter of course not being a criminal
case at all. Given such a choice, the discriminating capital
defendant might even welcome a sole practitioner who had never
before tried a capital matter, or a drug addict suffering from
emotional and marital problems. Then again, only a consummate
masochist would submit to representation by an advocate who,
during the penalty phase of one capital trial, admitted to the
judge, "I'm at a loss. I really don't know what to do in
this type of proceeding."
Understand that capital punishment, as
the name suggests, really is about capital, as in money, and
if your lawyer fails to make an opening statement you might inquire
as to whether he or she is actually being paid a living wage
for performing-or in this case not performing-such work. Fittingly,
capitation (from the Latin for head) rules the world of attorney's
fees. States have customarily placed limits on the total amount
they will disburse in a death penalty case, saddling some counselors
with minimum-wage work, a state of affairs that, depending on
the importance your attorney attaches to the almighty dollar,
can at times lead to decapitation or something equally
unpleasant.
Although money is not everything, at
these rates, lawyers, understandably, are somewhat reluctant
to take on new clients. One Georgia attorney went so far as to
say that he would "rather take a whipping" or even
a dose of laxative than a new capital matter. In Kentucky, the
limit on fees once dropped so low that no one answered the call
to duty, prompting a judge to suggest that the local indigent
representation program raise funds for a certain capital defendant
by sponsoring a cruise down the Ohio River. The exposure of such
shabby treatment has led to a modicum of reform. But it goes
without saying that it is still better if you can afford to hire
your own defense counsel, even if you must stoop to organizing
a bingo tournament or some other game of chance which, if nothing
else, will offer a dry run for trial.
In the Courtroom
With your lawyer at your side, you are
ready for your day in court. In the best case scenario, you would
want people on the jury with at least a doubt or two about whether
it is right for the state to make off with your life. Regrettably,
the law has not made it easy for you. All juries in capital cases
are "death qualified." This means exactly what it says,
that the people on the jury are fit to award you a sentence of
death because they are believers in the death penalty. Indeed,
the prosecutor and judge are legally bound to see to it that
no one squeamish is impaneled. Logic dictates that a person who
rejects capital punishment obviously cannot take part in something
called a capital trial.
At sentencing, a good rule of thumb is
to prevail on your attorney to provide at least twenty words
of argument for every year you have lived (excepting if you suffer
from a self-esteem problem then deduct two or three words per
annum). The reason for this is that the enormity of the sentencing
phase has been known to leave even talented members of the bar
at a loss for words, the profession's reputation for long-windedness
notwithstanding. Consider this closing statement from the death
penalty case of Jesus Romero:
Attorney: Ladies and Gentlemen, I appreciate the time you took
deliberating and the thought you put into this. I'm going to
be extremely brief. I have a reputation for not being brief.
Jesse, stand up. Jesse?
Romero: Sir?
Attorney: Stand up. You are an extremely intelligent jury. You've
got that man's life in your hands. You can take it or not. That's
all I have to say.
On the other hand, counselors willing
to expend a bit more breath have been able to spare the lives
of even the most depraved criminals (no, this does not mean you).
An approach favored by attorneys in the know is to show that
life in prison is punishment enough and perhaps even a  worse fate than death. This
is a valid strategy but consideration must be given to how the
jury will react. One attorney let it be known that the defendant,
apparently some kind of barbecue maven, would not be able to
attend such affairs while in prison. Instead of leaving it at
that, however, the lawyer proceeded to recount in excruciating
detail precisely what his client would be missing, right down
to his choice of mustard-niceties that at least one juror called
"stupid."
Finally, it never helps during the penalty
stage to have an advocate who is overly impressed with the magnitude
of your crime. One truly feels for those defendants whose lawyers
harp on the heinous, letting show, in front of the jury, no less,
their true feelings about their clientele. To think that one
attorney, while his client's life hung in the balance, referred
to what he and his co-defendant did as comparable to "sharks
feeding in the ocean in a frenzy" is enough to give one
goose pimples, if not hives or something worse.
A Word on Judges
Perhaps at this point it would be worthwhile
to interject a word or two about the character of the American
judiciary. Most judges, of course, treat capital cases with the
gravity they justly deserve. Rare is the justice who lets his
or her own personal feelings about the death penalty shine through
and, in any case, should this happen, the knowledgeable capital
defendant knows not to make too much of a fuss. One Florida judge,
after the 1972 U.S. Supreme Court decision that ruled the death
penalty (as then administered) unconstitutional, made clear his
hard feelings by allegedly casting a noose into a tree. That
the tree happened to be situated in front of a courthouse was,
to say the least, unfortunate. This kind of anecdote is of course
the stuff of urban legend and I believe one can rightly still
feel comfortable appearing before justices of this character.
Judges who show up at sentencing wearing
brass knuckles, as one southerner did, are also, in all likelihood,
fair-minded enough to capital defendants. Those who claim to
be doing "God's work" in carrying out a death sentence,
as well as those who schedule executions on important holidays
or a trusted clerk's birthday are somewhat more suspect but,
again, our system of criminal justice ought to be resilient enough
to accommodate differences in taste and style and still deliver
on the promise of a fair trial. Much has also been made of a
Texas judge who signs his execution warrants with a little happy
face. If it comes to this, simply ask yourself: How should
the Bench approach the task of conveying such news? Is it not
better to keep one's chin up?
Some Good News
Perhaps never before in American history
has the process of execution been more efficient and rational.
The evidence is apparent everywhere one turns. Consider the barbaric
practice of electrocution. This bizarre Americanism has long
remained the butt of jokes. Even a Louisiana warden recognized
the absurdity of this form of departure, displaying on his desk
a miniature version of the notorious hot seat, arranged to deliver
a brief shock on contact. Hilarious. If even a sliver of doubt
as to the utter ridiculousness of this method remained, it was
safely disposed of when the state of Florida electrocuted a colander
(yes, kitchenware) in an effort, believe it or not, to test the
safety of its chair.
Now to encounter this brutal form of
torture-for let us be honest-you must journey to such out of
the way places as Nebraska, which has not executed someone in
several years, or Alabama, which is presently considering mothballing
old Yellow Mama, the term of endearment assigned this horrendous
device. Shipped off to museums or posted on online auctions ("Just
in time for the holidays . . . the state of Tennessee's actual
electric chair"), Old Sparky is now more likely to be encountered
in the home family room than in prison.
To the glee of inmates and corrections
officials both, the barbarous chair has given way to the infinitely
more civilized medicinal method, in which reclining inmates peacefully
drift off to sleep. But like much else that is positive about
American society, it was a long hard struggle to reach this point.
Some objected to the new and improved approach on grounds that
it amounted to little more than mollycoddling. T-shirts popped
up bearing the locution "Needles Are For Sissies,"
as if death row was crammed full of pantywaists.
From the other direction, meanwhile,
came cries that injection, far from being mama's boy's preferred
means of dispatch, is instead a form of cruel and unusual punishment.
A former U.S. president, and a knowledgeable authority on putting
animals of all kinds to sleep, once challenged this assertion,
but the stubbornly skeptical might care to consult the following
firsthand account filed by a New York assemblyman. "As far
as I could tell, it was very painless and over very quickly."
What more could one ask?
In fact, there is more. For those who
are not late-night people, the death penalty, with its midnight
schedule, has always been a grind. But here too, the forces of
rationalization and efficiency have been brought to bear with
great success. Arizona, for example, has made the switch from
the stroke of twelve to the far more civilized hour of three
o'clock in the afternoon. Such business-hour executions have
benefited not just the early-to-bed condemned, but judges and
staff as well. Recalling the "late-night headaches"
involved in one midnight affair, one justice spoke of "frantically
running down to an all-night copy place, getting reams of paper
from the fax machine." Through it all, he kept saying to
himself, "This is madness" and "Why do we do this?"
Why, indeed, when a simple scheduling decision would alleviate
virtually all of the hardship.
The Final Course
Mindful of these improvements, those
condemned to die can now focus on other more pressing aspects
of this ritual, such as the catering. A well-chosen meal can
greatly enhance the meaning of this important event in your life.
In this regard, Last Suppers: Famous Final Meals from Death
Row by Ty Treadwell and Michelle Vernon is an indispensable
resource. At the cost, no doubt, of much time and personal expense
(for, frankly, who but the condemned would possibly be interested
in purchasing a book on death-row dining), the authors have compiled
what is clearly the foremost guide to capital fare, replete with
advice on which states offer the best choice of cuisine (Illinois
and Indiana), not to mention helpful recipe suggestions. Indeed,
so useful and informative this guide has been found to be that
word has it that the authors are contemplating a sequel titled
"Second Helpings of Last Suppers."
Be polite. Imagine the hard feelings
among the staff in one Oklahoma prison after having put together
a feast consisting of steamed mussels, a cheeseburger, and spaghetti
and meatballs, only to hear the condemned man complain, in his
last statement no less, that he had, in fact, ordered SpaghettiOs,
not spaghetti.
Parting Words
Capitalize on knowing exactly when you
will meet your maker and use this information to your advantage
by carefully crafting your last words. Do not let the demonstrators
outside the prison walls shouting or otherwise bearing tasteless
slogans such as "We Want the Body," "Teddy [substitute
your name here] is Deady," or "For All You Do This
Shot's for You," cause you to lose your cool and employ
bad language or gesture obscenely. Instead, choose your departing
phraseology to suit your personality; this is not a one-size-fits-all
occasion. By the same token, set aside concerns regarding plagiarism.
If a perusal of Edward Le Comte's well-regarded Dictionary
of Last Words, for instance, should turn up something particularly
apt, by all means go ahead and borrow it.
You do, however, want to be sincere and
convincing. "I'm innocent, innocent," while possibly
even true, is unlikely to persuade anyone. "Adios amigos"
has the virtue of simplicity to recommend it, but is unlikely
to earn you an entry in the newly revised Dictionary of Last
Words. "Just a moment, Mr. Executioner! Help! Help!"
while clever, is a tad dated now that the esteemed hangman has
retired to make way for anonymous button-pushing prison staff.
"Kill me, or else you are a murderer," though not without
merit, is overly intellectual and likely to confuse witnesses
and prison officials alike. "Let's do it" is legendary
and if you have a thing for speed and efficiency-as does, apparently,
a certain chief justice of the U.S. Supreme Court who once said
in disgust over the snail's pace of the entire capital punishment
process, "Let's get on with it"-then perhaps your search
is over.
My own personal favorite is "I only
regret that I have but one life to lose for my country."
For those words nicely capture the true spirit of the occasion,
founded, above all, on the need to deter others from revisiting
your fate. Picture yourself as a foot soldier in the war for
decorum. True, no solid research as yet suggests that capital
punishment has a deterrent effect on crime. But commonsense suggests
otherwise. One prosecutor put it nicely when he explained, "I
was having a fight with one of my ex-wives, and I found myself
choking her, and I saw her eyes start to pop out, and suddenly
off to the left or the right I saw the electric chair. It deterred
me." There you have it. Knowing that your life has gone
to serve a just and higher cause will ease your passage into
the Great Beyond. Go then, your fast-food justice is being served.
Ted Steinberg
teaches history and law at Case Western Reserve University and
is the author of DOWN
TO EARTH: NATURE'S ROLE IN AMERICAN HISTORY and ACTS
OF GOD: THE UNNATURAL HISTORY OF NATURAL DISASTER IN AMERICA.
He can be reached at: txs18@po.cwru.edu
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