Money and Murder

by Katherine Scardino

Did you know it costs more than $2 million, give or take a few hundred thousand, to prosecute a capital-murder defendant from the moment of arrest until the jury returns a verdict? That's without the continuing costs of a decade or so of appeals of every death sentence.

Killing a citizen for killing another citizen to prevent the killer from killing again is costly -- and frankly, embarrassing. Many studies find there is absolutely no evidence that executing the “worst of the worst” deters anyone from committing any kind of crime, especially murder. In 1995, a poll by Hart Research Associates found that the majority of police chiefs did not believe the death penalty significantly reduces the number of homicides. In fact, these police chiefs ranked it as the least effective way to reduce crime. The only thing Texas has gotten from all its many executions is a bad reputation and the distinction of killing more people than any other state in the United States, as well as some entire countries.

After 33 years of executions (since the U.S. Supreme Court allowed restoration of the death penalty in 1976), some states are looking at the bottom line: What are we getting in return for executing violent criminals? New Mexico recently backed away from capital punishment. The cost is too great for the return; worse, several prisoners have been exonerated, which can scare even the most steadfast death-penalty supporter. No one can stomach the execution of an innocent person.

Texas is currently in turmoil over the 2004 execution of Cameron Todd Willingham, who was convicted of setting a fire that killed his three young daughters in 1991. The evidence used to declare the fire arson in 1991 has been found flawed and unreliable by Texas' arson commission in 2009.

It appears that Texas did, in fact, execute a man for a crime he did not commit. Oops! My bad! What else can we say? Well, according to Gov. Rick Perry, right after he replaced three members of the arson commission, Cameron Todd Willingham (photo below) was a “bad man” who deserved to die, right? No, Gov. Perry, you are wrong. Whether Mr. Willingham was a “bad man” wasn't the point. The point is that Texas spent the money to have a jury trial, and presented bad, incompetent, allegedly “expert” evidence about arson -- and that this evidence led a jury to find Willingham guilty of capital murder and sentence him to death.

There are so many flaws in the U.S. capital-punishment system that it's hard to pick just one. It would be nice if capital punishment were eliminated in the United States so we could join the company of the rest of the world's civilized nations. But more likely, it will be because of money, money, money.

Let’s look briefly at the money issue. In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years -- and that's from a Dallas Morning News report back in 1992! Obviously, as of 2009, the cost is even higher. In California, the death-penalty system costs taxpayers $114 million each year, above and beyond the costs of keeping convicts locked up for life. (L.A. Times, March 6, 2005).

The cost of a capital crime -- a crime for which a person may be sentenced to death -- can be too much for some jurisdictions, such as Austin County, Texas. In August in a small, bucolic community halfway between Austin and Houston, four men, all relatives, were arrested, jailed and charged with capital murder in the death of a Houston doctor visiting his summer home there. Austin County hasn't had a capital-murder prosecution in 15 years. The cost of prosecuting these four men for capital murder will be prohibitive. Each of the four defendants is entitled to two defense lawyers, defense experts, and a multitude of other defense expenses.

So: What if smaller counties “Just Say No”? Their resources could be channeled into better schools, more police officers, solving old crimes, building new libraries, etc.

That would leave only the larger jurisdictions prosecuting capital cases. And how could that be acceptable? That would mean if someone committed a capital murder in Harris County, for example, they could be sentenced to death. If the same person committed the same crime in a small county, he wouldn't be charged with capital murder -- so punishment would be determined by where a crime was committed.

That is exactly what is happening in various counties across Texas, making the death penalty even more flawed and inequitable.

The cost of prosecuting a capital case is enormous. The return is small -- so small that all you get back is one executed person unable to commit any more crimes -- and a lot of invoices. Let’s ALL just say no.

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Death Row

by Katherine Scardino

I have recently visited someone on Death Row (Texas Death Row, pictured left). In my 24 years of working in the criminal justice field, I have never been there before. I have heard from other people how depressing it is, but it is impossible to put into words the immediate response your mind has to the meaning of this place. You know that you are walking into a space occupied by people who are looking at an "end date". That is something that none of us have to do. We all know, intellectually, that we will not live forever, and that at one point in time, we will die. But, we do not know when. Many of the tenants of Death Row have a date. They know when their heart will stop beating, when their lungs will no longer take a breath, when their brain will cease to function.

The Texas Death Row is located in Livingston, Texas, in the Polunsky Unit. It is about five miles off the main road and sits alone. It is a sad sight. I went there to visit an inmate named Michael Toney. I had been contacted by a lawyer working for one of the big law firms in San Francisco, the kind of law firm that is able to do free legal work for whomever they choose. It is the type of law firm that those who are involved with it just call it "the Firm". The Firm decided to dedicate free lawyer hours and effort to free Michael Toney off Death Row. The Firm, along with another lawyer named Jared Tyler, who works for the Texas Defender Service, have been successful in getting Mr. Toney a new trial. That is where I enter the scene.

Michael Toney (pictured right) was convicted in Tarrant County in 1999 for a bombing that occurred there in November 1985. Yes, I said "1985". He was accused of placing an explosive device in a briefcase and setting the briefcase down in front of a trailer and subsequently killed three people. He obtained a reversal from the Fifth Circuit and a new trial as a result of misconduct by the State prosecutors in Tarrant County during his trial. It seems that they withheld exculpatory evidence from the defense lawyers, not to mention the fact that witnesses have recanted their testimony and State witnesses had different version of facts used to convict him. You can imagine how bad the problems had to be in a capital murder case in order for the Fifth Circuit to reverse his prior conviction.

I went to see Michael Toney with one of his lawyers, Jared Tyler. Jared and I sat in a cold room waiting for him to be brought in, unhandcuffed, and sat down behind a glass partition on a concrete stool. (Everything that can possibly be made out of concrete is concrete in the Polunsky Unit.) Mr. Toney arrived looking like he had just spent the last 10 years on Death Row. His complexion was pale and unhealthy, which is what inmates look like who have spent many hours in their cell with no access to a regular walk to the store in the sunshine.

I have always wondered about sensory deprivation. Can you imagine not touching another human being for years at a time. There have been many studies about the effect of sensory deprivation on inmates who are segregated or other people who choose to just be alone. Sensory deprivation is the deliberate reduction or removal of stimuli from one or more of the senses. It is one of the most favored measures used by the CIA in its "war on terror". It has so far been used on many detainees at Guantanamo Bay to the extreme - to the point of hallucinations of sight and sound, followed by a breakdown akin to psychosis.

Michael Toney sits in his 60 square feet of space 23 out of the 24 hours each day. During his one hour out of his cell, he must do his errands - like go to the Commissary, bathe, brush his teeth, plus try to work in a little sunshine. Sensory deprivation can change a person’s attitude and personality. It can make you paranoid, psychotic and generally mess up your mind.

I do not want to discuss today the crimes that were committed to cause Michael Toney or any of the inmates to be living at this facility. We all are well aware of the type of crime that results in a death penalty. As I said before, the people who live on Death Row are going to be executed at some point - except for Michael Toney, and I am going to try and work on that. But, they are human beings, even though they are treated and kept as animals. We keep them isolated, alone, no human contact, and then complain when they turn into an animal. We put our captured animals in cages in the zoo, and for the most part, they surely look peeved when I go to visit them. They are angry. The caged animals act angry. We read about an elephant attacking his trainer, a lion mauling a child, or some other horrid act - by an animal who should be in the wild but for us humans who think we must have a sample of their species in a cage for us to look at and point at and laugh at. They act angry - we shoot them. In the Polunsky Unit, when an inmate acts angry, he gets "written up" or deprived of his one hour of sunlight each day. Does anyone other than me see how ludicrous this is?

Michael Toney has something to look forward to. He has hope now. He talked about other inmates being jealous of his new trial. He was ready to get off Death Row and shipped to the Tarrant County Jail, where he will stay until a jury renders a verdict in his next trial. This time, I know that the verdict will be a lot different than the last one and I know that for one reason - all of the evidence will be presented to a jury - not just a part of it.

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Civilization and Its Discontents

by Katherine Scardino

We talk so much at Women in Crime Ink about violent events in our world . . . and how wrong (regardless of which side of the table you are sitting on) our courts are about almost everything . . . and how our country is going to the dogs, etc. etc. . . . that I thought it might be nice to venture in another direction for a change. I don’t know . . . call it my "sensitive side."

Recently I was driving back to Houston from visiting my sister in deep East Texas. That’s the part of Texas where the country roads are "real" country roads—where the trees meet in the middle above your head, where buzzards are eating road kill in the middle of the road and you have to veer your car around them because they do not fly away even when a car drives by.

But I digress. As I was tooling down the road, I just happened to look beyond the first row of trees near the road. I noticed that behind what a driver would ordinarily see was . . . woods. I mean WOODS—like thick trees all growing tight as pick-up sticks without any cute paths or roadways in the middle.

So I started thinking (which is always dangerous), but have you ever just stopped and thought how far our country has come in a mere 150-plus years? There was no machine for cutting trees, paving roads, building houses; gads, there wasn’t even a television to watch CNN on, or "Days of our Lives."

One hundred and fifty years is not even a speck in the timeline of our planet. It is not much of a speck in the timeline of almost every other country, except the United States of America. We are so new and yet we have come so much further in our culture, education, inventions, music, and our laws, especially our laws. With all the advancements in other areas, have we really "advanced" in our legal system?

In our country's infancy all those years ago, we were a rough nation, especially in the area of crime and punishment. We were still having shootings in the middle of the road (you know, in front of the saloon, à la John Wayne), hangings off the old oak tree—and for crimes as awful as horse stealing. Maybe we were just simpler then. Our lives were not so complicated.

I wonder if we have evolved for the better or for the worse? Long before the mid-1800s, we punished people even more severely. I have a book that I frequently refer to: The History of Capital Punishment. It was written by John Laurence in 1960, and has a foreword by Clarence Darrow from Mr. Darrow’s book: Crime, Its Cause and Treatment. In 1922, Darrow wrote: "Frequent executions dull the sensibilities toward the taking of life. This makes it easier for men to kill and increases murders, which in turn increase murders, and so on, around the vicious circle."

So even then, this great lawyer understood that killing people because they kill people does not really get us anywhere. And in closing, Mr. Darrow said the following:

In the end, this question is simply one of the humane feelings against the brutal feelings. One who likes to see suffering, out of what he thinks is a righteous indignation, or any other, will hold fast to capital punishment. One who has sympathy, imagination, kindness and understanding, will hate it and detest it as he hates and detests death.

In my musings driving down the country road, looking at the woodsy backdrop and thinking of what life would have been like "back then," I wondered if we were really better now.

Sure we have all our "toys" and the great mysterious Internet—which in my mind is like the monolith in the film 2001: A Space Odyssey. We all worship it as being the greatest thing—ever, but we don’t really know what IT is, right?

But it is part of our new world. Have we done the right thing by "evolving" to a form of capital punishment called lethal injection—instead of the hangings, firing squad, drawing and quartering?

Clarence Darrow seemed to think that by doing something on a regular basis, then it was not a big deal any more—just a regular thing. Is that what we are doing by executing people because they execute someone else?

Have we dulled our sensibilities to the point that it is no longer front page news that we have killed another person? I notice that executions are generally no longer on the front page—but have been relegated to the inside page of a lesser section of our local newspaper.

What is next? Who wants to see an execution on television? Wendy Lesser explored the societal implications in her book Pictures at an Execution. When the State executes, it does so on behalf of "The People." What's the next step in a world where "virtual reality" too often becomes reality? I think of the recently released movie Untraceable, where real-time online killings become a mania that users participate in by sheer number of hits, making us all "hit"men.

Do "The People" really wish to become a futuristic version of the lynch mob of our primitive years? How can that be considered progress? Anti-death penalty folks say "Nature loves life" and life should be protected and preserved.

Clarence Darrow, again, had a great thought: "The thing that keeps one from killing is the emotion they have against it; and the greater the sanctity that the State pays to life, the greater the feeling of sanctity the individual has for life."

Yet our State does not show us much "sanctity" for life. We do not show much sanctity for life. So where are we going with all this?

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KELLY SIEGLER ON INTERNET RADIO TONIGHT!

Tonight at 10:00 ET, tune in to "War on Crime Radio" to hear Kelly Siegler discuss a murder case that took prosecutors 27 years to make.

Today, jurors began deliberating the fate of Aaron Foster, on trial in Minnesota for the shooting death of his girlfriend Barbara Winn in 1981. Last year, when Foster was finally charged, the victim's family stood beside the sheriff who accused the county prosecutor of "dragging his feet":

"We are befuddled as to why they haven't pressed [charges]," the sheriff said at a televised press conference. "It's either lack of competency, lack of caring, lack of making it a priority. . . ."

Kelly will also discuss the worldwide controversy surrounding the upcoming execution of José Medellin for the sadistic slayings of Elizabeth Peña and Jennifer Ertman. Kelly was a prosecutor in the multiple gang-rape murder case.

Listen to the live broadcast tonight at 10:00. Kelly will be taking callers' questions and will be joined by WCI's Policewoman / Novelist Stacy Dittrich along with Crime Victims Advocate Andy Kahan.

War on Crime Radio
10:00 p.m. ET / 9:00 p.m. CT

Wednesday, July 23

Call-in number: 347/838-9781

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Witness

by Jenna Jackson

I got an email a few days ago that made me start thinking about something I have not thought about in years. Executions.

A group called the Texas After Violence Project e-mailed to ask me to interview with them about my experience with the death penalty. Thankfully, I’ve never lost anyone I love to murder – or to an execution. But as a young reporter, I witnessed more than 20 lethal injections.

When I was in college at Sam Houston State University, I worked full time at the local newspaper, the Huntsville Item. I got some of my best reporting experience to date at that tiny paper. Even though it was a small paper in a small town, we covered big issues – because it’s located in the state’s prison capital – Huntsville, Texas.

I worked the prison beat, and part of my beat included covering executions at the nearby Walls Unit. I was 20 years old – and I spent many evenings at the old brick prison. It was usually just the same handful of us there – me, an AP reporter and a UPI reporter. Most nights, just before 6 p.m., the three of us would follow the prison PR guy across the courtyard and into the death chamber. Outside the gates of the courtyard, it would be silent. Every so often, an execution would garner publicity – and the street just outside that gate would be packed with people … protesting or just watching.

But most of the time, an execution was a non-event. That always struck me as one of the strangest parts of this ritual. I was a reporter covering a story – so I never voiced my opinion on whether I thought the death penalty was right or even effective. But I did always think if someone was going to be killed – whether at the hands of another person or by the state – it should be noted.

And because of that, our paper’s policy was that we published a story on each and every execution. Some weeks, there were several. On a couple of occasions, there were two in one night.

Because of those many nights I spent watching men be put to death, I actually came to believe that executions should be public. We as a society condone them – and we should see the effects of those laws. I’m not even sure it would change people’s minds to see them – but I think the option should be there.

But as it stands now, there are only a handful of people allowed into the death chamber to witness an execution. The inmate can choose a couple of people to come in on his side of the partitioned chamber – and the victim’s family can have a few people on the other side. The reporters usually were ushered into whatever side was the least crowded.

There was one night in particular that I remember where we three reporters were the only people – apart from prison staff – who were witnessing the lethal injection. The man strapped to the gurney had killed an entire family, so there was no one left on the victim’s side to attend. And he apparently had no family who was invited or wanted to come see him die. That was one of the saddest nights – simply because there was no one left to care whether this man lived or died.

When I got the e-mail from the Texas After Violence Project, I thought I really didn’t have much to tell them. I witnessed several executions, but I was never personally involved in any of these cases. But after thinking about it, I guess it affected me more than I knew at the time.

Their web site says the project was formed in 2007 “to listen.” As a reporter, I’ve always thought the more information people have, the better off they are – so, although I’m not sure what I can add to this project, I am going to call and tell them what I know.

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