A Descending Spiral: Exposing The Death Penalty In 12 Essays

Author: Marc Bookman
Publisher: New York: The New Press, 2021. 208p.
Reviewer: Eric M. Freedman | August 2021

The death penalty is a surreal island in the American criminal law system. Mere legal analysis can no more map that island than Newtonian physics can describe what is inside Schrödinger’s box.

Fortunately we have Marc Bookman. Although the author, who directs the Atlantic Center for Capital Representation in Philadelphia, is a talented defense lawyer and a knowledgeable historian, the salient skill he brings to this well-researched book is the ability to tell stories ranging from the implausible to the absurd that re-locate to a new dimension the reader’s understanding of the Supreme Court’s solemn assurance that “death is different.”

Bookman’s volume of engaging accounts of capital cases is far easier to read than to summarize, particularly if the reviewer wants to avoid revealing too many of the author’s O. Henry-like plot twists. But a few examples may give the flavor.

“Executed Against the Judgment of Twelve Jurors” describes the Florida case of Beauford White. Although present at the scene of an armed robbery during which six people were killed, “everyone agreed that White had never attempted to kill anyone, or even intended that anyone should be killed – that he had in fact tried to talk [the two actual shooters] out of killing.” Utterly shocked by the murders, White flatly refused to assist his co-defendants in disposing of their guns. Not surprisingly, all of the jurors rejected the prosecution’s demand for a death sentence.

But under the Florida statute as it exists to this day the jury’s decision was only a recommendation. The actual decision was up to the judge, who determined on a death sentence.

The governing legal rule was that sentencing judges were supposed to disregard the jury’s recommendation only when their contrary view was “so clear and convincing that virtually no reasonable person could differ.” Moreover, the United States Supreme Court, in a case arising from Florida, ruled during the pendency of White’s case that the Constitution forbids the execution of a person who did not take life, attempt to take life, or intend to take life.

A Newtonian observer would expect to see White’s death sentence routinely reversed in appellate proceedings. It was instead affirmed and he was executed.

These events, though, are only a portion of the story that Bookman – drawing on an extensive investigation of the case by the dedicated post-conviction teams representing White and his co-defendants – recounts. Readers discover that the crime, the criminals, and the investigators were all very different than had been portrayed at trial. The new picture that emerged resulted in some of the investigators going to prison. It did not prevent any of the defendants from being executed.

In contrast, “How Crazy is Too Crazy to be Executed?,” concerns a capital defendant, Andre Thomas, who is alive. But just where he may be living is uncertain.

According to the latest opinion from the United States Court of Appeals for the Fifth Circuit, Thomas v. Lumpkin, 2021 WL 1583162 (April 23, 2021), he is “an inmate on death row in Texas.” The court does not note, as Bookman does, that Thomas has actually been living since 2009 at a facility called Jester IV, a psychiatric institution for all state prisoners. In any event, as far as the panel’s majority is concerned Thomas’s remaining prison time should be brief and ended by his execution as soon as may be.

The underpinnings of that conclusion typify legal decision-making in the death penalty domain.

Thomas, who is Black, was married to a White woman and had a child with her. The marriage subsequently dissolved and she later had another child (of mixed race, says Bookman; whose race we do not know, says the panel, even though the briefing noted that the child’s father was Black). Thomas killed his ex-wife, their child, and her later child.

Asked in written voir dire questions whether they “oppose people of different racial backgrounds marrying and/or having children,” three of the jurors who eventually sat on Thomas’s capital murder trial for killing the youngest child said that they did. One of them – who had written that he was “vigorously opposed” because he “did not believe God intended for this” – assured defense counsel that these views would not have any bearing on his deliberations and defense counsel did not object to his service. Defense counsel did not even question the other two but simply allowed them to serve unchallenged.

Why? That depends on which of counsel’s two affidavits you believe, since, as the court observes, “they almost seem to be describing different events.” In one, counsel attributed his failure to neglect; in the other, he “said he had carefully considered how to question prospective jurors.” The two affidavits, the court says, “make strikingly different representations, between just not thinking to ask about interracial marriage and making a careful consideration of the issue.”

The state courts reviewing this record did not resolve the factual contradiction. They simply determined summarily that counsel had not been ineffective. When the case reached the Fifth Circuit, it decided that the appropriate course was to supply “those unarticulated findings which are necessary to the state court’s conclusions,” and then to grant those supplied findings a presumption of correctness. On the state of facts so generated, the panel continued, the state courts might have committed legal error in rejecting the ineffective assistance claim but if so their error was run-of-the-mine. And the rule applicable to cases on Capital Island is that, “To be reversed, the state court[s] must have erred unreasonably.” They had not.

So, the habeas corpus judges concluded, Thomas’s body should be moved from a prison cell to an execution table.

Bookman, who does not doubt that Thomas’s body is indeed in a prison cell, limns quite another plane on which he exists.

As noted by the psychiatrist who observed him two days before the murder took place – and who promptly signed an emergency detention order that was ignored – Thomas is far more lunatic than your ordinary psychotic.

Bookman recounts that when Thomas murdered his victims, “he used three different knives, so that the blood from each body would not cross-contaminate, thereby ensuring that the demons inside each of them would die.” Further, he “had cut out the children’s hearts and returned home with the organs in his pocket,” and also a piece of his ex-wife’s “lung, which he had mistaken for her heart.” Sitting in a psychiatric observation cell six days after the killings, and “reading the Bible, he gouged out his right eye with his finger” As he later explained, this was part of his counter-attack on the government’s ongoing efforts to hear his thoughts.

Meanwhile, back in the legal system, the Texas authorities found Thomas competent to stand trial. The jury described in the Fifth Circuit’s opinion then rejected his insanity plea and sentenced him to death. Whatever the jury may have thought, the officials housing him on death row certainly considered Thomas to be seriously mentally ill. They were proved right in spectacular fashion a few years after trial: “On December 9, 2008, Andre ripped out his left eye. His only eye. And he ate it. As he explained some days later, he didn’t want the government to read his thoughts, so he ate the eye because he was certain they would figure out some way to put it back in.”

It was this event that led to Thomas’s transfer to the Jester IV psychiatric unit. “Now it is 2021. Andre Thomas remains in his tiny cell on death row, waiting. And no one, not even Andre, is quite certain what he is waiting for.”

And so it goes. Essay by essay Bookman charts an island on which there is no border between facts and imagination. Data points like confessions and DNA results vanish and reappear in changed guises while the very realities of which they are elements wink in and out of existence. Death-sentenced inmates leave prison under circumstances as whimsically related to mundane realities as the ones that landed them there in the first place.

The death penalty is not a legal device that sometimes malfunctions, as all devices do. Rather it is “a world where misconduct is spotted but not punished, where biases and racism are rotting but not revealed, where injustices are argued but not recognized,” and where government functionaries put people to death or spare them based on such aleatory happenings as the malfunctioning of a lawyer’s computer system.

In calling for the abolition of this peculiar institution, Bookman suggests that capital punishment may be not just an island but also a lighthouse, warning of and sometimes illuminating clouded injustices in our legal and social systems. Indeed, the final word in his book goes to the most senior surviving officer of the Titanic – “a man who knew the tip of an iceberg when he saw it.”

Eric M. Freedman, Siggi B. Wilzig Distinguished Professor of Constitutional Rights
Maurice A. Deane School of Law at Hofstra University