by Nancy Grace
The felony charge carries a maximum of three years behind bars. Whether the sixty-four-year-old jury tamperer actually does time remains to be seen. This unusual case is hard evidence that Martha has some serious die-hard fans and that sentiments about her prosecution—both pro and con—run deep. And P.S.—don’t worry about the juror who was “tampered with” on the elevator. The case was thrown out by the judge (because of lack of evidence) before the jury heard a word!
C H A P T E R N I N E
T H E D E AT H - P E N A LT Y B AT T L E
I’VE HEARD THE DEATH PENALTY DEBATED SO
many times, in court and out, that when the argument starts up on air, I brace myself. The death penalty is not a “debate.” It’s a very real issue: the single most important determination a jury will ever make. Life or death. Both victims’ and defendants’ families know the gut-wrenching, heartbreaking, life-changing meaning of the words “penalty phase.”
Without that firsthand knowledge, legal pundits, law professors, and politicians don’t know what it feels like to go through the experience.
During my years as a prosecutor, I had to go to the morgue and see autopsies of innocent victims. The crime-scene photos of murder victims I’ve seen are too numerous to count. People can say whatever they want about the death penalty, but unless they’ve walked a mile in the shoes of a victim or a victim’s loved one, they don’t know what they’re talking about.
But I do.
One morning in 1980, I said, “I love you!” and waved good-bye to my fiancé. There was a chill in the early-morning air even though it was summertime in Georgia. I waved until he was nearly out of sight, because I’ve always heard that watching until someone is out of sight is bad luck. I ducked inside the kitchen just before his car disappeared O B J E C T I O N !
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around the curve in the road. His arm was waving outside the window, above the car. I never saw him alive again, except in the sporadic dreams I’ve had over the years.
I learned of Keith’s murder during a phone call with his sister. I could hardly put the phone back on the hook, my hands were like but-terflies flying around inside the phone booth . . . not following orders from my brain. Everything after that is a blur. I barely remember the events of the days and nights that followed, including the funeral and even the trial. There are, though, a few things that stand out in my mind. Before trial, the prosecutor on the case came to see me. I remember he was chewing tobacco. I was so young at the time, and he seemed so old—he was probably the age I am right now. He asked me matter-of-factly, “You want me to get the death penalty?”
I had never considered such a thing. I had never known such a possibility. All I knew was that Keith was dead. Nothing, no grief-counseling, no verdict, no death sentence could ever change that. In my youth, I answered, “No.” Since that day, I’ve had twenty years to think about it.
I was wrong.
W H O D E C I D E S ?
In this country, we have chosen to retain the death penalty as the ultimate punishment and deterrent. The battle has been raging for as long as I can remember regarding whether that decision is right or wrong.
Who—just who, may I ask—should be the intellectual and moral ar-biter of the will of the people? Television pundits? Law professors who have never tried a case, been on a crime scene, or sat in the back pew during the funeral of a cop gunned down in the line of duty? Do we want politicians who have never held the hand of a crime victim or walked through a housing project where crime rules the day, deciding the issue? Should it be some “investigative journalist” who once wrote a story 2 6 0
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about the “injustices” of death row or, at the other end of the spectrum, who rants and reminisces about bringing back the electric chair to cast the deciding vote?
I say, “No!”
Those people should not be the decision makers. It is our job. The victims, their families, the defendant’s family who stands behind them, the workers whose taxes foot the bill for justice, the schoolteachers who see the defendants growing up, the preachers who visit the inmates, the nurses who try to save crime victims in the ER, and the mothers whose hearts ache with grief are the people who should decide.
We, the people, as members of the jury, must decide in each and every case where the death penalty is at issue, and then we must be strong enough to carry it out or wise enough to stop it if it is not warranted. It is our duty and burden. It is our obligation to decide when, how, and why the death penalty is carried out, answering only to our own consciences. I trust and I believe in us. I have the faith that we, the people, can live up to what our Founding Fathers believed we could be: a nation founded under God and indivisible, with a justice system that is blind to race, religion, sex, and creed. Our system is based on the belief that a jury will return a verdict that speaks the truth and decide if the penalty should be life or death. It comes down to twelve people in a jury box. “They” are us . . . the ones who should decide.
We, the people, will make that decision and nobody, but nobody, will make it for us. Not the European Union, the United Nations, visiting dignitaries, pundits with an agenda, not crusaders or hard-liners or bleeding-heart liberals should have the power to make that call. We, the people—we, the jury—have that right and that power. We are society’s conscience. We decide right from wrong in our courts. Nobody can—or should—take that right away from us.
O B J E C T I O N !
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R U L E O F L A W ,
N O T R U L E O F M A N
When there is no justice in the court systems, people will take justice into their own hands. The people of the United States and their English forebears, the source of our common law, made provisions to avoid just that eventuality with the alternative of the death penalty. This is no longer the case in the United Kingdom, where, despite overwhelming public support, the last vestiges of the death penalty were wiped out in 1998. A 2001 report in Time magazine stated, “While European advocacy groups, political officials and the media are touting the
[Timothy] McVeigh execution as an argument against the U.S. death penalty, there is no sign of a mass mobilization of public opinion. . . .
In Britain support for the penalty remains around 60%.” Yet politicians refuse to act.
Against that backdrop, both America and Great Britain confronted the death-penalty issue head-on when faced with similar crimes in 2002, crimes that were so horrible, so despicable, I could hardly bring myself to think through the details of the murders. Both cases involved the worst crime on the law books: child murder and possible sexual assault on the little victims before their deaths.
When I heard about the facts of the case that took place here in America—including the existence of a tiny palm print beside the defendant’s bed, the little girl’s blood on his jacket, her blond hair in the sink at his home and her blood on his carpet—I got chest pains. I’m talking, of course, about the kidnap and murder of seven-year-old Danielle van Dam at the hands of David Westerfield. The sight of his jacket physically repelled me when it was held up before the jury with her blood on it. I cried when the jury saw the little Mickey Mouse earring used to identify her remains. A California jury found him guilty. If the jury had not returned a guilty verdict as well as the death penalty, I fear the courthouse 2 6 2
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would have been overrun by citizens fueled with righteous anger. God help me, but between righteousness and peace, I chose righteousness.
Thousands of miles across the ocean, the people of Great Britain were horrified over the disappearance of two ten-year-old girls. Holly Wells and Jessica Chapman, school chums from Soham, a small community in the English countryside, went for a walk together and never came home. Their disappearance launched one of the largest manhunts in the country’s history. The search made the news every night, and with every passing day the sense of foreboding that hung over the case grew and grew. Thirteen days aft
er Holly and Jessica vanished, the worst fear of every parent was realized. The burned remains of the two little girls were discovered in a ditch in the neighboring county of Suffolk, just eight miles from their homes. Ian Huntley, a twenty-eight-year-old school caretaker, was charged with their murders, and his girlfriend, Maxine Carr, was suspected of complicity.
In both cases, here and abroad, the public wanted the death penalty imposed for the crimes. During the trials, citizens of both countries who were seeking justice had to take on not only the defense but also the “intellectuals” who seem to know better than everyone else what is right and wrong. Westerfield was found guilty and today sits on death row. Huntley was also found guilty at his trial in 2003. Upon pronouncing sentence, the judge there said, “There are few worse crimes than your murder of those two young girls.” When asked what should become of his daughter’s killer, Jessica’s father, Leslie Chapman, replied, “The next time I’d like to see him was how we last saw our daughter—and that was in a coffin.” I believe that the laws of a country should reflect the will of its people. Thanks to the elected officials in Great Britain, the girls’ families had no hope of seeing justice in the murders of Holly Wells and Jessica Chapman.
It’s clear that Great Britain is bullied by the European Union, of which it is a part and which collectively denounce the death penalty, declaring it to be unacceptable for EU members. All too often, death-penalty opponents point at the United States and claim that no modern O B J E C T I O N !
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civilized nation endorses the enforcement of the death penalty. In the minds of these naysayers, it is more “civilized” to tolerate, feed, clothe, and house a child molester who killed without mercy and allowed the child’s family to beg, cry, and suffer on national TV while watching from the comfort of his sofa at home.
Here, not everyone’s silence can be taken as support. In California, politicians and judges have been far too politically correct and too worried about their own skins to actually come out and state that they oppose Westerfield’s sentence to death by lethal injection. That would never do . . . they may not get reelected. Instead they employ much more insidious methods of opposition. Silently, protractedly, and under the guise of “justice,” politicos endorse a decades-long appeals process that all but guarantees that when Westerfield does finally die, it will likely be of old age, with an AARP card clutched to his chest.
But at least American juries have the choice, in a majority of states, to impose the death penalty for a crime so heinous that it warrants the ultimate punishment. If we really care about preserving that right, we should inspect the records of politicians and, more important, judges, and then vote accordingly. Our friend and ally, Great Britain, is so emasculated by the EU that the country’s politicians cower in the face of opposition by their own people. Thankfully, that is not the case here.
Still, we are sometimes left with the failure to implement the will of the jury—and when the rule of man takes over the rule of law, the threat of vigilantism looms. Militia movements like the Freemen, Christian Patriots, Branch Davidians, and vigilantes like the subway shooter Bernhard Goetz are just a few examples of what can happen when individuals take the law into their own hands.
Because Wisconsin does not have the death penalty, Jeffrey Dahmer, the Milwaukee serial killer who murdered sixteen young men and boys and committed unspeakable acts of cannibalism, dismemberment, and necrophilia, was sent to prison for his crimes. The notorious murderer was sentenced to fifteen consecutive life terms in 1992; another 2 6 4
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one was added to his sentence the following year for his first murder when it was discovered that it had occurred in 1978. A life sentence for butchering sixteen people? Is that justice? Even Dahmer’s fellow inmates were outraged by his gruesome acts. No tears were shed when another prisoner killed him in November 1994.
Weak-willed politicians and judges have managed to hide behind a long and painful appeals process in death-penalty cases to achieve their own ends in a manner I argue is neither the will of the people nor democratic by any stretch of the imagination. If you ask them why, they’re sure to pontificate over their reasons. What’s important to remember here is that just because they recite their reasons over and over and over, it does not make them true—or valid. They sing the second verse same as the first. Tune in to any cable-television program, wait a few hours, and you will hear the same tired song: The death penalty is capricious, and the innocent may well be executed; it does not deter other crimes; nothing can possibly justify the state’s taking a life; it simply isn’t civilized. Opponents seem to equate support for a jury’s choice to implement the death penalty in specific and heinous cases with incivility—as if we had somehow picked up the wrong salad forks or drunk from our soup bowls. Hello! It’s not about etiquette, it’s about whether our courts will seek and carry out justice as well as punishment. It’s not about civility. There is nothing civil about murder or its consequences. Instead of living it, working it, dealing with the pros and cons of it, opponents mostly seem to enjoy whining about it.
Is their reasoning sound? Their arguments are repeated so often and with such a tone of moral self-righteousness that many listeners fall for them. They continue to sing the same tired chorus without ever truly examining the harsh realities of crime—murder, specifically—or the aggravating circumstances such as rape, child molestation, or cop killings that must accompany the murder in most jurisdictions before the death penalty is even considered. All of that must take place before O B J E C T I O N !
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the weighty burden of the jury’s vote of yea or nay even kicks in.
Wrestling with this decision, though difficult, is essential. It is not for the weak-kneed, but for those strong hearts that want the truth. Let’s try the truth.
U N F O U N D E D C L A I M S O F
W R O N G F U L E X E C U T I O N
I consider the most powerful weapon in the opposition’s arsenal to be their argument that plays on people’s fear of wrongful execution. This is a legitimate fear and must be confronted head-on without attacking the premise of the fear. I agree with the great libertarian John Stuart Mill in his analysis of the issue. He believed that the remote possibility that an innocent man could, in some contortion of the system, be wrongly convicted and executed is a risk that can never be entirely eliminated, and that such a miscarriage of justice would be in itself heinous. We as a nation, if we are truly dedicated to the cause of justice, must take any and all measures to avoid it.
Only a handful of wrongful capital convictions and penalties are known, and none has occurred since 1976, when capital punishment was reinstated in this country. Technological breakthroughs in DNA science have added another layer of protection for the accused. When we learn from the headlines that an inmate has been released from behind bars because of DNA analysis, in my mind the case for the death penalty grows stronger, in that injustice is even more unlikely and justice has been served well by the exoneration of the not guilty.
The examination of DNA evidence is just one aspect of the many precautions taken in death-penalty cases. Mill accurately reasoned that the mistake of wrongful conviction and execution can never be corrected; all compensation, all reparation for the wrong, is impossible.
Wrongful convictions are grounds for abolition where the mode of criminal procedure is dangerous to the innocent or where the courts of jus-2 6 6
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tice are not trusted. This is probably the reason that the objection to irreparable punishment began so long ago and is greater in parts of the world outside America. There are countless court systems where criminal procedures are not nearly so favorable to the accused and do not offer the same protections against erroneous conviction that we revere in this country.
Believe me, if the U.S. justice system were so ineffective and unfair, I’d be the first to join in with the death-penalty protest. But that is simply not the case.
Our justice system is the soundest in the world, with defects rare and rules of evidence that are typically all too favorable to the prisoner. In this country, the belief is firmly ensconced that it is better that ten guilty should escape than that one innocent person should suffer. Judges incessantly point out, and juries believe in, the barest possibility of an accused’s innocence. While no human judgment is infallible, in our system the accused always has the benefit of the merest shadow of a doubt. Furthermore, when the death penalty is sought in sentencing phase, after a guilty verdict is handed down, juries are even more careful, more dedicated to their duty as adjudicators of fact, law, and punishment.
In June 2000, an article appeared in the Wall Street Journal written by law professor Paul Cassel in which he took a hard look at opponents of the death penalty in a Columbia University study that claimed the nation’s capital-punishment system was collapsing due to wrongful convictions. The U.S. Supreme Court long ago instituted a system of super due process for death-penalty cases. The result of the long and tortuous appeals process is that capital sentences are more likely to be reversed than lesser sentences are, because of incredible caution. Publicized reports of a 68 percent “error rate” in capital cases is actually an amazing indicator of the bench’s multiple safeguards for the imposition of the death penalty.
The so-called 68 percent error rate in the study had nothing to do with the “wrong man” defense, where an innocent person is convicted of murder. After reviewing twenty-three years of capital sentences, re-O B J E C T I O N !
