Thursday, September 22, 2011

Capital Punishment and The Executions of Troy Davis and Dominique Green


     Reading the news accounts of the State of Georgia’s execution last evening of Troy Davis ( reminded me of a similar story, chronicled so brilliantly by author Thomas Cahill in his 2009 book A Saint on Death Row.  The similarities in the two cases are amazing:
-          Persistent and unwavering claims of innocence by the executed
-          The recanting of testimony by multiple key witnesses casting doubt on the original verdict
-          A long, drawn out appeals process with failed last minute pleas to the U.S. Supreme Court and the President
-          International support for clemency, including Desmond Tutu in the Dominique Green case and Pope Benedict XVI in the Troy Davis case
     Capital punishment, in my opinion, certainly qualifies as cruel and unusual punishment and should be abandoned.  State sanctioned killing is still killing.  The following is an article I wrote in July of 2009 on this topic and was published in LamLight, the physician newsletter for the Lynchburg Academy of Medicine.

A Capital Conundrum: Considering the Death Penalty
(Books reviewed or mentioned in this article include: A Saint on Death Row:  The Story of Dominique Green by Thomas Cahill, Ultimate Punishment:  A Lawyer’s Reflection on Dealing with the Death Penalty by Scott Turow, Postmortem by Patricia Cornwell, The Executioner’s Song by Norman Mailer and The Green Mile by Stephen King.)

     Capital punishment is an issue which I have struggled with personally over the years.  As a college student in the early seventies, I was ardently opposed to it.  My years at the Medical College of Virginia, however hardened me to the fate of the capital felon.   Two incidents in particular helped change mu opinion.  The first was my brief encounter with one of the infamous Briley brothers.  The three Briley brothers and several accomplices terrorized Richmond, Virginia in 1979, committing incomprehensible crimes in a robbery, kidnapping, rape and murder spree which lasted seven months.  They were finally apprehended, tried, convicted and the older two Briley brothers (Linwood and J.B.) were sentenced to die.  In 1984 Linwood and J.B. coordinated a six-convict escape from the Mecklenburg maximum security prison in Boydton and were recaptured in Philadelphia and executed the same year.  I had occasion to treat one of the Brileys (as a prisoner) in the Emergency Department at M.C.V. and remember him as eerily quiet with a menacing presence.  I felt I had come face-to-face with pure evil.  I made sure that plenty of security personnel were with me when I went into the treatment room.  Thankfully I’ve never had another experience like that one.  I recently had the occasion to talk to the now-retired Richmond detective who arrested members of the Briley gang.  He told me, “When you looked in their eyes there was nothing there.”

     The second event happened in 1987.  I was in private practice of Plastic Surgery in Richmond by then, but was still an associate clinical professor at M.C.V.  I picked up the “Richmond Times-Dispatch: on my front porch one morning and was shocked to see on the front page that a neurosurgery resident had been murdered in her home off of Semmes Avenue in South Richmond.  I had known this young surgeon since medical school days (she was one year behind me) and she had been a surgical intern when I was a junior surgical resident.  My wife knew her at Douglas Freeman High School and we had been guests in her home.  Needless to say, we were shocked beyond anything words could express.  This young lady was a brilliant and talented surgeon and a wonderful person.  She was the third victim (out of an eventual five) of serial killer Timothy Spencer, dubbed “The Southside Strangler.”  He was eventually apprehended, convicted and sentenced to death.  He was executed in 1994.  As an interesting aside, the Timothy Spencer trial was the first time in which DNA evidence was used to convict in a capital case.  “The Southside Strangler” was also the basis for Patricia Cornwell’s first crime book, Postmortem, which was published in 1990.  The other interesting twist to the Timothy Spencer case is that he committed his first murder in Arlington, Virginia, four years before the killing spree in Richmond.  Another man had been convicted for that murder and was incarcerated for five years before DNA evidence proved that the killer was Timothy Spencer.
      During the past two decades, debate over the death penalty has, like many other moral and ethical conundrums, become polarizing and politicized.  A candidate for public office who is against the death penalty is branded as “soft on crime” while one who favors it is often seen as heartless or harsh.   Our own Governor Kaine had to answer this question repeatedly during the last election because his church (Roman Catholic) opposes the death penalty.  He deftly answered that he would be elected to uphold the laws of the Commonwealth and would do so despite personal and religious objections to capital punishment.
The U.S. Supreme Court has waffled on this issue as well.  In 1972 the Court declared in Furman v. Georgia that the death penalty constituted cruel and unusual punishment and was therefore unconstitutional.  This decision overturned all existing death penalty laws and sentences.  In 1976 the Court reversed itself in Gregg v. Georgia.  The first execution in ten years occurred in January 1977 when Gary Gilmore was killed by firing squad in Utah (a story made infamous by Norman Mailer in The Executioner’s Song, which won the Pulitzer Prize in 1980.)  There have been many opinions since which further define what constitutes a capital crime and some restrictions have been placed.
     My personal opinion has now gone full circle.  I feel that capital punishment is wrong.  The two books I am about to review defend that position.  The most important concept which helped me reach my current opinion of the death penalty, though, is the principle preached by the late Catholic Cardinal of Chicago, Joseph Cardinal Bernardin.  Cardinal Bernardin taught a “consistent ethic of life.”  The three main ethical issues confronting society in this arena are abortion, euthanasia and capital punishment.  Cardinal Bernardin contended that a person should support life “across the board” and it was inconsistent to be anti-abortion, anti-euthanasia and pro-capital punishment, for instance.  You can’t pick and choose.  Human life is sacred and should be defended in each of these arenas.  My purpose in still reading and deliberating on this subject were very well put by Scott Turow in Ultimate Punishment.  In describing why he accepted a position on Illinois Governor Ryan’s Special Commission to Study the Death Penalty, he stated: “I did not hesitate when asked if I would like to be considered (for a spot on the Commission.)  It was important work and would offer me the chance to systematically contemplate an issue thag had long divided me against myself.”

     Thomas Cahill is a Fordham University-educated philosopher and historian and has been the director of religious publications for Doubleday Publishing.  He has written five wonderful books in a series he calls “The Hinges of History” (The Gift of the Jews, How the Irish Saved Civilization, Desire of the Everlasting Hills, Sailing the Wine-Dark Sea and Mysteries of the Middle Ages) as well as a tour guide book to Ireland and a biography of Pope John XXIIIHis most recent book is A Saint on Death Row: The Story of Dominique Green.

     Dominique Green was a young black man convicted in Texas of murder in the commission of a felony (robbery) and sentenced to death.  The author details the harrowing childhood that Dominique experienced.  His mother was drug-addicted, his father was mostly absent and always abusive and he lived in abject poverty.  He was physically abused by his mother (burning his hands with cigarettes was standard punishment) and sexually abused by a family member and subsequently by a clergyman at a private school.  By ten years old, Dominique was involved in drug trafficking in Houston, mainly to have money to buy food for his younger siblings.  By sixteen he already had had many brushes with the law.  When Dominique was eighteen he and three accomplices attempted to rob a truck driver.  The driver pulled out a knife in self-defense and in the ensuing scuffle, one shot was fired and the driver was killed.  The only independent eye witness to the crime could not identify which of the four boys shot the driver.  One of the four involved (the only white one) identified Dominique as the shooter.  Incidentally, the white teen was the only one of the four robbers never charged with anything.  There were no African-Americans on Dominique’s jury and his court-appointed lawyer had no experience in capital trials.  He was convicted of capital murder.   His appeals were denied repeatedly.

     Dominique’s time in prison was truly incredible.  He became self-educated, wrote poetry, read voraciously and was inspired by Desmond Tutu’s book No Future Without Forgiveness.  This book helped Dominique overcome his self-hatred.  He used the lessons in this book to help other inmates confront their own actions and accept responsibility for what they had done.  He became the focal point for an anti-capital punishment campaign waged by the Italian Community of Sant’Egidio, a group which works for social justice causes.  The apex of Dominique’s death row years came in March, 2004.  Thomas Cahill was able to arrange for Desmond Tutu to visit Dominique at the prison in Huntsville, Texas.  That visit was apparently inspirational for all involved.  After leaving the prison, Desmond Tutu was interviewed by the press and said: “I was very humbled to be in his presence, because I felt I was in the presence of God.  This is not the monster that many would expect or think, but a human being, a human being who has grown…  I’m glad I came.  I come away deeply enriched from my encounter with an extraordinary man.”  On the issue of capital punishment he said that “it is not a deterrent.  I think that it is an obscenity which brutalizes.  As a believer, I find it the ultimate giving up, because our faith is a faith of ever new beginnings.  If you execute them, you say ‘I close the possibility of them ever being able to repent or change.’”  Tutu made it a point to shake the hand of every prison guard.  He stated: “They were some lovely people, but I just wonder what effect working in that environment can have on people.  It’s so destroying – for everyone there.”  This is a theme which Stephen King developed very well in his novel The Green Mile.  Towards the end of this short but incredibly moving book, Thomas Cahill states that the question is not whether or not Dominique was guilty.  He very well may have been.  The question in this author’s mind is:  Did Dominique Green receive a fair trial?  He deftly describes the flaws in the case.  Each of these flaws is generically described in Scott Turow’s book The Ultimate Punishment.

     The state relied on testimony from an accomplice.  This was an accomplice that had a tremendous amount to gain by providing this testimony (his own freedom.)  Dominique did not receive adequate representation.  His original jury had no African-Americans.  His appeals were not handled in a proper fashion because he did not have the money to hire appropriate attorneys.   By the time he was being helped by the Community of Sant’Egidio too much time had passed.  There was zeal on the part of the prosecutor to convict Dominique, in part, because he was involved in a tough re-election campaign.  Thomas Cahill wrote notes after his first meeting with Dominique Green.  In those he wrote: “Dominique is where he is for two reasons only: he is poor and he is black.”  Dominique Green was executed by lethal infection in 2004.

     In Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty Scott Turow elaborates on what he feels is wrong with the current capital punishment system.  First and foremost, he points out the number of convicted capital felons who have subsequently been found to be innocent.  Since 1976, for every seven executions (486 in total) one person on death row has been proven innocent.  Turow says: “But when it comes to an institution as idealized as justice, I doubt most Americans are comfortable with the trade.  For the majority of us, the prospect of executing someone who is blameless casts a special pall over the death penalty.  The fact that capital cases are uniquely prone to error calls either for safeguards we have yet to institutionalize – or even fully conceive of – or for renewed reflection about whether to proceed with capital punishment at all.”

     Secondly, Turow raises the issue of whether the state should be allowed to kill its citizens under any circumstance.  Historically this has obviously been misused by many governments.  Thirdly, Turow addresses the rights and wishes of the victim’s families.  It is assumed by many that execution of the criminal “brings closure” or that the criminal deserves it (death).  The Illinois Commission sought data to support this premise, but found mostly just the opposite.  Interviews with family members of the Oklahoma City bombing after the execution of Timothy McVeigh gave quite mixed opinions.  Some family members felt that the pain of losing a loved one was not affected by the execution of the perpetrator.  There are actually some studies that show that survivors only experience more emotional turbulence in the wake of an execution.  The victim’s family in the Dominique Green case actively worked to have his sentence commuted to life in prison.

     Turow then dismisses the concept that the possibility of execution can act as a deterrent to serious crime.  The data clearly show that states with the fewest executions have the lowest levels of capital crimes.  There is no deterrent factor.  Turow confronts the issue of racial bias.  The Illinois Commission hired a research firm to establish the validity of the common opinion that racial bias plays a role in the death penalty.  Turow writes: “There was indeed a race effect, it turned out, but not what popular beliefs might suggest.  Killing a white person made a murderer three and a half times more likely to be punished with a death sentence than if he’d killed someone black.”  One of the justifications for the death penalty is always that it is cheaper to go ahead and execute the prisoner than keep hinm in prison for his entire natural life.  The Illinois Commission also analyzed this argument and found that if you factor in all of the costs associated with mandatory appeals and court reviews, the cost of the death penalty is actually greater than the cost of life imprisonment.  Finally Turow brings up the concept of “Moral Proportion.”  That is, is it just for someone such as Dominique Green, possibly guilty of an unplanned act of homicide, to receive the same punishment as a John Wayne Gacy or a Richard Speck (premeditated serial killers)?  Is this justice?

     There is an excellent seven-minute video at the web-site which has interviews with Thomas Cahill and Dominique Green and summarizes Cahill’s book quite effectively.  I suggest that you watch it.

     In writing this article it was not my intent to proselytize or change anyone’s opinion.  I think it is important, however, to continuously examine our own opinions regarding moral issues such as capital punishment.  Those of us that are physicians are often thrust into positions of community leadership and, rightly or wrongly, our opinions on issues of life and death are held in high regard.  I hope that at the very least I’ve given you reasons to think about the role of the death penalty in a modern society.  Both Cahill’s A Saint on Death Row or Turow’s Ultimate Punishment are great places to start this contemplative process.   

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