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 them—they’re the two arms
of the cross. Reconciliation pulls together what appear to
be polar opposites in the compassionate healing presence of
Jesus.
For more information:
Executions and support for death penalty decline
U.S. bishops to launch major new campaign to abolish death
penalty
This article appeared in the April 2005
(Volume 70, Number 4; pages 28-32) issue of U.S. Catholic.
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