Once You're Dead, You're Out of Appeals
A Likely Bigot Presided Over Death Sentences in Texas. Those already put to death have no recourse.
A group of seven people escaped from a Texas prison in 2000. While they evaded the law, they robbed a sporting goods store, and killed a responding police officer in the process. That’s a capital offense; and when they were captured, all but one faced death penalty trials. The one-man-out supposedly committed suicide as police were closing in. Five of the survivors had the same judge at trial – a man later revealed by people close to him to have been proud of presideing over their death sentences because of their ethnic and religious identies. Those facts may help keep one person, Randy Halprin, alive; but it does no good for Garcia, Rodriguez, or Newbury who were already killed by the state. The case raises all too common questions about whether the state should be punishing anyone with death, when humankind is simply incapable of providing a level of due process that could ever justify such a severe, and irreversable fate.
Randy Halprin remains on death row. Halprin is Jewish, and Judge Vickers Cunningham was aware of this during Halprin’s death penalty trial. Years after Halprin and the others were sentenced to death, someone who worked closely with Judge Cunningham said that he, privately, used the words, “kike” and “that fucking Jew” to refer to Halprin. Now that these, and other, facts about the judge’s bigoted views have come to light, at least one court has declared it was too much to allow the death sentence to go forward.
Last month, District Court Judge Lela Lawrence Mays declared that Halprin should have a new trial and wrote, “a judge’s religious and racial prejudices are uniquely offensive to the Constitution and the legitimacy of the criminal justice system. Even the slightest influence of racial and religious stereotypes will make a trial fundamentally unfair.” And, “[n]ot only is a biased decision maker constitutionally unacceptable, but ‘our system of law has always endeavored to prevent even the probability of unfairness.’”
The probability of unfairness, however, can never be zero. The standard for criminal cases is “beyond a reasonable doubt,” not “all doubt.” Humans cannot themselves be consistently fair as individuals, and we certainly can’t create processes that guarantee fairness for everyone involved. We might be willing to accept this when people are put in prison or forced to pay a fine. We can’t have a perfect system, but we still have to address harmful acts and public safety.* Even if we put someone in prison for the rest of their life in an unjust or flawed way, they can spend that life appealing their judgment, writing letters to whomever will listen, and continuing to hold onto hope. Once executed, however, those sentenced for capital crimes are out of options.
And although Halprin had a jury trial, the judge had a lot of influence over who was on that jury and what jurors heard or didn’t hear, considered or didn’t consider. Judge Cunningham denied Halprin several strikes for cause of jurors – jurors Halprin’s attorney felt should not be on the jury because they could not follow the law. Normally strikes against these jurors are unlimited. In this case, these jurors nevertheless made it on the jury, or Halprin’s lawyer had to use one of a limited number of peremptory strikes to keep them off. Unless it’s clear that a juror said they could not, or would not, follow the law in a particular case, higher courts rarely second-guess a trial judge’s decision on these matters.
The issue of who actually killed the officer was also central to all of these cases, and the judge had a big role in how those facts and the law of parties were considered in court and by the jury. The law of parties in Texas means that, in some specific cases, whether or not a person actually did the killing or even intended to kill anyone, they can be charged for the murder if they were part of the group, and anticipated that a death might occur. Cunningham suppressed evidence about Halprin’s possible culpability among the group of men – information that could have changed the outcome. His jury also submitted a question about the law of parties, indicating, as one would expect, that it doesn’t always make sense to find all members of a group culpable for a single murder carried out only by one party in the group. That rule can lead to confusion and a need to be certain that the law is being applied appropriately; and Halprin’s jury obviously struggled with this.
Judge Cunningham shaped the way the jurors saw both the law and the facts, he made decisions about expert witnesses, jury instructions, and much more.
The judge did this not just for Halprin, but also for four other individuals, three of whom have already been put to death. Again, according to people who knew him well, Judge Cunningham “did not like anyone not of his race, religion or creed, and he was very vocal about his disapproval.” He also regularly used offensive language such as “nigger,” “wetback,” “spic,” and “kike.” He specifically spoke proudly of his role in these cases because some of the defendants were Latino and one was Jewish. Michael Anthony Rodriguez never knew that Judge Cunningham referred to Latinos as “wetbacks” and “spics,” and never had a chance to challenge his death sentence on this basis, as he was executed ten years before this information came to light. Joseph Garcia was executed just months after this information was publicized, and although the Texas Court of Criminal Appeals appears to have been briefed on the matter in an effort to save his life, that notoriously conservative court decided the new facts did not meet the high bar for a subsequent writ of habeas corpus.
That high bar exists because decades of fearmongering and “tough on crime” posturing by politicians have made “finality” a much bigger deal in death penalty cases. A condemned person should not be allowed to file appeal after appeal and have their execution dates delayed and delayed through years of legal maneuvering, so the theory goes, or capital punishment will become less effective. So subsequent writs of habeas corpus must meet certain requirements or courts will consider them a sort of abuse of process. New information that comes to light, which could not have been discovered previously through “due diligence,” is a common exception to this rule. But here we see the danger of a punishment that is both final and impossible to redress once carried out. New facts that come out, after the state injects a living human being with poison until their heart stops, do no good.
Once the victim of an unjust trial is executed, all criminal appeals are moot.
*Note: I’m not arguing for lesser punishments, imprisonment, etc. I have a number of criticisms of the criminal justice system in general. I’m just seeking to distinguish what makes capital punishmen particularly pernicious.