John T. Floyd Law Firm
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May 20, 2008
EXECUTIONS: THE UGLY REALITY AND RACIAL IMPLICATIONS CONTINUE
Houston Criminal Defense Lawyer John Floyd Discusses Race to Restart the Death Penalty, Ugly Reality of the Ultimate Penalty
Just 19 days after the U.S. Supreme Court upheld the lethal injection protocol used by most states to carry out executions, the State of Georgia put to death William Earl Lynd on May 6, 2008. Interestingly enough, the Supreme Court said that when lethal injections are carried out “properly,” the result will be an immediate, humane death. Lynd was pronounced dead at 7:51 p.m. – some seventeen minutes after the first drug, sodium thiopental, was administered. Three to five grams of this barbiturate is supposed to induce immediate unconsciousness. Media reports did not indicate that Lynd was immediately rendered unconscious.
The 53-year-old Lynd, who became the 1100th person executed in the U.S. since 1976, was convicted and sentenced to death in 1988 for the murder of his girlfriend. Georgia Attorney General Thurbert Baker had requested and secured a quick execution of Lynd following the Supreme Court’s lethal injection ruling. The attorney general has also requested that the Georgia Supreme Court lift stays it granted last October to two convicted killers: Jack Alderman who was sentenced to die for the 1974 murder of his wife and Curtis Osborne who was condemned to death for a 1990 double murder. Georgia could execute yet a forth man, Samuel David Crowe, who final appeal was rejected by the U.S. Supreme Court just days after the court turned away the lethal injection challenge.
“It’s [the death penalty] going to crank up again,” said Fordham Law School Professor Deborah Denno, a lethal injection interview. “Life [on death row] is going back to the way it was.”
Suffering through a seven-month moratorium on the death penalty was apparently difficult for capital punishment states. They are now ready to churn full speed ahead with the death machine. The below states have plans to execute the following inmates:
- Texas: Derrick Sonnier on June 3; Charles Hood, June 17; Lester Bower, July 22; Larry Davis, July 31; Jose Medellin, August 5; and Denard Manns, August 25. With 405 executions to its credit, and leading the nation with this dubious distinction, Texas does not intend to let any other state challenge its death penalty supremacy.
- Virginia: Kevin Green, May 27; Percy Walton, June 10; Robert Yarbrough; and Edward Nathaniel Bell, July 24. While ranked a distant second behind Texas with 98 executions to its credit, Virginia is determined to make a good showing in the death race.
- Oklahoma: Terry Lyn Short, June 17. With 86 executions, Oklahoma is ranked third in the competition to execute the 3350 people on the nation’s death rows.
- Mississippi: Earl Wesley Berry, May 21. Mississippi has managed only 8 executions since 1976, the last being in 2006.
- South Dakota: Briley Piper, sometime between October 7 and 13. Having executed only one person since 1976, this state has difficulty setting a specific date for its executions.
- Louisiana: Antoinette Frank and Darrell Robinson, July 15. Louisiana plans to be gender-neutral if it is successful in carrying out the double execution of a man and woman on the same day.
“There will surely be future legal challenges brought by the method of execution [lethal injection],” predicted Texas’ Attorney General Ted Cruz. But the attorney general doesn’t see any real hope for success with these challenges because the Supreme Court’s recent ruling “makes clear that the method of execution that virtually every state uses is consistent with the U.S. Constitution.”
But as in the Lynd case there will be those thorny DNA and forensic evidence issues that will continue to haunt the nation’s use of the death penalty. There have been 129 condemned inmates across the country exonerated by DNA evidence, the latest being Levon Jones who spent 13 years on North Carolina’s death row before being freed.
Still, these exonerations do not impress prosecutors.
“There’s has been no evidence in this state – and I’m not aware of any in the country – that any demonstrably innocent person has been put to death,” CNN quoted Tommy Floyd, chairman of the Prosecuting Attorneys’ Council of Georgia, as saying following Lynd’s execution. “As well as the humane system we have devised, the death penalty is carried out fairly and appropriately [in Georgia].”
That was not so clear-cut in Lynd’s execution.
The Barrien County, Georgia, prosecutor’s office presented evidence to Lynd’s jury that the condemned man and his live-in girlfriend, Ginger Moore, got into an argument in December 1988. Lynd reportedly shot Moore in the face during the argument and walked outside the house to the front porch. Moore followed him. Lynd reportedly shot Moore a second time. He then put her in the trunk of a car and drove away. Trial testimony said he killed her when he shot her a third time because she continued to thump on the trunk.
The third, and reportedly fatal, shot made it a capital offense because, as the State contended, Moore was killed during a kidnapping. But a medical examiner concluded before Lynd’s execution that Moore was not alive when she was placed in the trunk. That would have made Lynd ineligible for the death penalty because a dead person cannot be kidnapped.
Tom Dunn, Lynd’s attorney, made a strong push in last minute appeals to get the case re-opened. The attorney said he lacked the funds 20 years earlier to discover and present the evidence that would have prevented Lynd from receiving the death sentence.
“In my 20 years of capital defense work, except for DNA exonerations, I have never had a clearer factual basis for relief,” Dunn said in a written statement following the execution. “No mincing of words. Just objective medical and physical evidence. Unfortunately, it came too late because of the lack of funds to hire the necessary experts.”
In October 1993 the House Judiciary Subcommittee on Civil and Constitutional Rights released a report that showed 120 persons had been released from death row because their innocence had been established. The Death Penalty Information Center reports that between 1973 and 1999 there were an average of 3.1 exonerations of death row inmates each year and between 2000-2007 the average was 5 per year.
Still, the State of Georgia was determined to execute Lynd. Why? The answer probably could be found with a group of people sitting outside the Jackson prison near Atlanta where Lynd was executed as a show of support to Moore’s family.
“They shouldn’t let so many years go by,” said Claudia Bishop, one of the pro-death penalty supporters. “I feel for the victim’s family and for his family but not for him.”
Prison spokesman Paul Czachowski told the media that Lynd spent much of his last day visiting with his family. He requested a mild sedative to calm him in the hours before being put to death. His brother and sister-in-law witnessed the execution while his mother and other relatives waited in other parts of the prison.
When asked if he had a final statement or wanted a prayer, Lynd simply said: “No.”
With 3350 condemned inmates on the nation’s death rows, it will take more than nine years to execute them all should one person be executed each day. And during that period of blood-letting, approximately another 1000 inmates will have been added to the death row population. Texas currently has 370 inmates on its death row – and since its first post-Furman execution in 1982, the state has executed an average of 15 inmates per year. At that rate it will take Texas 24 years to eliminate it current condemned population – but at the accelerated pace it has been putting people to death over the last decade, it would take only ten years if the state managed to put down 37 inmates each year.
Besides the lack of funds for defense attorneys to properly represent capital defendants as in the Lynd case, there is that continuing, gnawing issue of race in the administration of the death penalty. A new study by Professor Scott Phillips of the University of Denver revealed that black defendants in Harris County, Texas, during the 1990s when District Attorney Johnny Holmes aggressively pursued capital punishment as a political agenda were more likely to receive the death sentence than white defendants.
Phillips’ research will be published in the Fall edition of the Houston Law Review. The Denver professor examined 504 cases eligible for the death penalty in Harris County where the highest number of death sentence are imposed in Texas. Phillips’ research joined the ranks of 20 other race studies, according to the Death Penalty Information Center, that found blacks are more likely to receive the death sentence when the victim is white.
Professor Phillips found that when the severity and other factors of the crime, including prosecutorial discretion, are taken into consideration, “the odds of a death trial are 1.75 times higher against black defendants than white defendants.” Phillips added that the chances of a black defendant actually receiving the death sentence were 1.5 times higher than a white defendant.
Of the 1100 people executed in this country, 57% were white (625), 34% were black (374), and Hispanic 7% (76). 80 percent of the executions for murder involved white victims, although white victims represent 50% of the murder victims nationally. Of the total 1100 persons executed, only 15 white inmates were executed for killing a black victim while 223 black inmates were executed for killing white victims. The current death row population is 45% white, 42% African-American, and 11% Hispanic, according to the Death Penalty Information Center.
Obvious in these statistics is the reality that the death penalty in this country is fueled as much by subtle racism (98% of the prosecutors in capital cases are white while only 1% is black) as it is by a collective societal demand for revenge. The Phillips study, therefore, is no surprise. It only reinforces the historical reality of the death penalty in America: race is the prevailing reason why the penalty remains a fixture in the nation’s criminal justice system. And the fact that 902 of the 1100 post-Furman executions were carried out in the South underscores this tragic reality.
By: Houston Criminal Defense Lawyer John Floyd and Mr. Billy Sinclair
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