By: Houston Criminal Defense Attorney John T. Floyd and Mr. Billy Sinclair
On July 23, 2008 the State of Mississippi executed Dale Leo Bishop for his involvement in the beating death of 22-year-old Marcus James Gentry. The Bishop execution was significant only because he became the third person put to death in this country who did not actually kill the victim while the actual killer received life imprisonment.
In 1998 Bishop, Gentry, and Jessie Johnson engaged in a night of heavy drinking and drug use. They ended up in Gentry’s car on an isolated dirt road near Saltillo, a community in northern Mississippi. A dispute broke out among the men leading Johnson and Bishop to attack Gentry. Johnson struck Gentry 23 times with a hammer before it lodged in the victim’s throat. Bishop was convicted because he held Gentry by the neck during the murderous assault.
Johnson was tried separately from Bishop, convicted, and received a life sentence without parole. Bishop was also convicted by a jury, but elected to have the trial judge impose sentencing. Even though Johnson admitted that he struck the fatal blows that killed Gentry, the judge nonetheless sentenced Bishop to death.
The two others cases in which the actual killer received life while the lesser participant was put to death were Steven Hatch, who was put to death in Oklahoma in 1996, and Doyle Skillern, who was put to death in Texas in 1985.
In October 1979, Hatch and Glen Ake quit their jobs at a drilling company, borrowed the car of a fellow worker, and drove to a rural farmhouse in Okarache, Oklahoma. The barking of a family dog alerted 12-year-old Leslie Douglas that a vehicle had pulled into the front yard of the Douglas home. She asked Ake if he need any help. He asked the young girl for an address. The girl went back inside the residence to look up the address in the telephone book. Ake and Hatch followed her into the residence under the pretense of using the telephone. They found Rev. Richard Douglas, a local Baptist minister, his wife, Marilyn, and 16-year-old son, Brooks, in various parts of the residence. The two intruders pulled guns and forced everyone into the living room, telling the family they would blow their heads off if they tried anything.
The intruders then took Marilyn and Brooks to their rooms to get money. The mother and son were returned to the living and, along with Rev. Douglas, were bound, gagged, and told to lie face down on the floor. The intruders then took Leslie through the house in search of “secret hiding places” for cash, jewelry, and credit cards. After tearing the telephones from their connections, Ake told Leslie to undress and unsuccessfully attempted to rape her. Hatch also attempted to rape the young girl, but also was unsuccessful. Ake made a second attempt to rape the girl before telling her to dress and return to the living where she was also bound, gagged, and forced to lie face down on the floor.
Hatch covered the heads of all four of the family members. Ake then sent Hatch to their waiting vehicle. After telling the family that he didn’t want to shoot them, he said he didn’t know if they could be trusted. Before shooting Rev. Douglas and Leslie twice and Marilyn and Brooks once each, Ake said “I’m sorry but dead men don’t talk.” He then fled from the farmhouse and joined Hatch in their vehicle.
The two children survived the brutal assault but Rev. Douglas and his wife did not. Hatch and Ake were arrested the following month in Craig, Colorado. Both men were tried, convicted, and sentenced to death. Ake’s death sentence was ultimately commuted to life without parole after his conviction was reversed because the State had denied him access to favorable information for an insanity defense.
In October 1974 Patrick Randel was a narcotics agent working for the Texas Department of Public Safety. He was working undercover to purchase illegal drugs from Doyle Skillern and Charles Victor Sanne in Live Oak County. At approximately 7:00 p.m. on October 23 Randel was seen by fellow DPS agents at he left a motel room in Beeville and got into the agents’ vehicle with Sanne. Randel and Sanne were followed by a second vehicle driven by Skillern. Randel left the state money that was to be used for purchasing the drugs from Skillern and Sanne in the motel room. Approximately one hour later Skillern and Sanne were observed entering Randel’s motel room.
At approximately 10:45 p.m. DPS narcotics agent Hector Sanchez received a telephone call at his home in Harlingen from agent Dennis Vickery. Vickery told Sanchez to go out to Gary Jackson’s house in San Benito and look for an orange Camaro, the vehicle that had been driven by Skillern earlier. The illegal drugs Randel was suppose to be purchasing allegedly belonged to Jackson. Sanchez picked up his partner Tom Daniel and a Harlingen Police sergeant named Chris Trevino.
At approximately 12:05 a.m. Sanchez and fellow officers spotted the Camaro parked at a convenience store. He and Trevino kept the vehicle under surveillance while Daniel stationed himself in his vehicle a short distance away. Trevino called the vehicle in to DPS and learned that it was on the agency’s stolen list. When the Camaro left the convenience store, it was followed by the two vehicles driven by Sanchez/Trevino and Daniel. The officers stopped the Camaro a few miles down Highway 77 near McAllen and discovered it was occupied by Skillern and Sanne. The agents quickly found Randel’s weapon, as well as the drug money, on Skillern and Randel’s credit cards and other items in Sanne’s possession. The two suspects were arrested.
Later that same day Randel was found shot to death in his locked vehicle at a roadside park near McAllen.
Skillern and Sanne were jointly tried, convicted, and sentenced to death. Sanne testified at the trial that he shot and killed Randel but claimed the shooting was in self-defense. Sanne’s death sentence was later overturned on appeal and he was sentenced to life imprisonment with the possibility of parole, and, in fact, was paroled after Skillern’s execution.
Besides Skillern, Hatch and Bishop, five other condemned inmates who did not actually kill anyone have been executed but the shooters in those cases were executed as well. All of these cases, but in particular the Skillern, Hatch, and Bishop cases, begs the question of whether this country should execute individuals who do participate in a crime in which someone is killed but who do not actually kill the victim. These executions are carried out under what is known either as the “felony-murder” or “law of parties” rule.
The United States Supreme Court confronted this question twenty-six years ago when it reversed a death sentence of a “getaway” driver in an armed robbery during which an elderly couple was killed. See: Enmund v. Florida, 458 U.S. 782 (1982). The Supreme Court cited the Florida Supreme Court’s reasoning for finding the death penalty appropriate for the “getaway” driver:
“‘’The only evidence of the degree of [Enmund’s] participation is the jury’s likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys’ money. The evidence, therefore, was sufficient to find that the appellant was a principal of the second degree, constructively present aiding and abetting the commission of the crime of robbery. This conclusion supports the verdicts of murder in the first degree on the basis of the felony murder portion’” Id., at 786.
The Supreme Court rejected this reasoning by saying that the cumulative weight of legislative and community opinion found that the death penalty in felony murder cases under circumstances like Enmund was disproportionate. Id., at 788. The Enmund decision was greatly influenced by the fact that while 32 states permitted the death penalty in felony murder cases, only 8 states, including Florida, authorized the death penalty “solely for participation in a robbery in which another robber takes a life.” Id., at 789. The Supreme Court held that the death penalty simply was not appropriate for a defendant in a felony murder where, as in Enmund, the defendant was not at the scene and had no intent to kill. But the Court specifically pointed out that the death penalty was appropriate for a felony murderer who actually kills, attempts to kill, or intends to kill. Id.
Five years later the Supreme Court refined the Enmund rule in an Arizona death penalty case. See: Tison v. Arizona, 481 U.S. 137 (1987). In that case the Arizona courts held that participants in violent felonies like armed robbery can frequently “anticipate that lethal force might be used in accomplishing the underlying felony” and, therefore, are equally culpable. The Supreme Court said “this definition of intent is broader than that described by the Enmund Court … Enmund himself may well have so anticipated. Indeed, the possibility of bloodshed is inherent in the commission of any violent felony and this possibility is generally foreseeable and foreseen; it is one principal reason that felons arm themselves. The Arizona Supreme Court’s attempted reformulation of intent to kill amounts to little more than a restatement of the felony-murder rule itself. Petitioners do not fall within the ‘intent to kill’ category of felony murderers for which Enmund explicitly finds the death penalty permissible under the Eighth Amendment.” Id., at 147.
But the Supreme Court found the death penalty appropriate in that case. The sons of a convicted murderer helped their father and another convicted murderer escape from the Arizona State Prison. Following the escape, the father robbed and killed a family of four following a carjacking in the Arizona desert. While the sons did not participate in the actual shotgun shooting deaths, they did nothing to help the victims. The Supreme Court found the role of the sons in this multiple shooting deaths was clearly distinguishable from the role of the getaway driver in Enmund:
”On the other hand, it is equally clear that petitioners also fall outside the category of felony murderers for whom Enmund explicitly held the death penalty disproportional: their degree of participation in the crimes was major rather than minor, and the record would support a finding of the culpable mental state of reckless indifference to human life…
”Raymond Tison brought an arsenal of lethal weapons into the Arizona State Prison which he then handed over to two convicted murderers, one of whom he knew had killed a prison guard in the course of a previous escape attempt. By his own admission he was prepared to kill in furtherance of the prison break. He performed the crucial role of flagging down a passing car occupied by an innocent family whose fate was then entrusted to the known killers he had previously armed. He robbed these people at their direction and then guarded the victims at gunpoint while they considered what next to do. He stood by and watched the killing, making no effort to assist the victims before, during, or after the shooting. Instead, he chose to assist the killers in their continuing criminal endeavors, ending in a gun battle with the police in the final showdown.
”Ricky Tison’s behavior differs in slight details only. Like Raymond, he intentionally brought the guns into the prison to arm the murderers. He could have foreseen that lethal force might be used, particularly since he knew that his father’s previous escape attempt had resulted in murder. He, too, participated fully in the kidnapping and robbery and watched the killing after which he chose to aid those whom he had placed in the position to kill rather than aid their victims.” Id., at 151-52.
The Supreme Court found that the Tison brothers’ participation in the murder of the Lyons family was anything but minor. Having found that they both “subjectively appreciated” that that their actions would likely result in the taking of innocent life, the Court said the only issue left unresolved was whether the death penalty in such cases violated the Eighth Amendment’s proportionality principles. Id., at 152. The Court concluded it did not:
”A narrow focus on the question of whether or not a given defendant ‘intended to kill,’ however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend to, and do, kill are not criminally liable at all — those who act in self-defense or with other justification or excuse. Other intentional homicides, though criminal, are often felt undeserving of the death penalty — those that are the result of provocation. On the other hand, some non-intentional murderers may be among the most dangerous and inhumane of all — the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an ‘intent to kill.’ Indeed it is for this very reason that the common law and modern criminal codes alike have classified behavior such as occurred in this case along with intentional murders.
”The petitioners’ own personal involvement in the crimes was not minor, but rather, as specifically found by the trial court, ‘substantial.’ Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each petitioner was actively involved in every element of the kidnapping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight. The Tisons’ high level of participation in these crimes further implicates them in the resulting deaths. Accordingly, they fall well within the overlapping second intermediate position which focuses on the defendant’s degree of participation in the felony.
”Only a small minority of those jurisdictions imposing capital punishment for felony murder have rejected the possibility of a capital sentence absent an intent to kill, and we do not find this minority position constitutionally required. We will not attempt to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty here. Rather, we simply hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement. The Arizona courts have clearly found that the former exists …” Id., at 157-58.
The degree of participation analysis prescribed by Tison creates an inordinate potential for punishment inequity. There was no evidence that Steven Hatch knew Ake was going to shoot the Douglas family or that the Tison brothers knew their father was going to kill the Lyons family. As the Supreme Court itself pointed out, every felony involving the use of a weapon to take something by force has the inherent potential for a violent outcome. But contrary to the Supreme Court’s finding, the “getaway” driver in Enmund was just as culpable as the Tison brothers or Steven Hatch. The getaway driver knew the persons he had joined with in the planning and carrying out the armed robbery of the Kerseys. He knew their potential for violence. Co-conspirators typically understand and, by choice, accept the inherent potential for violence in committing felonies.
But the death penalty – if it is to exist at all, and we certainly feel it should not – should be reserved for those who actually kill – not for those who have the potential to kill. Hatch was executed in 1996 – some fourteen years after the Enmund decision was handed down. He was no more aware that Ake was going to shoot the Douglas family than Enmund was aware that his buddies were going to shoot the Kerseys. The only difference in the two cases is that Hatch had a greater degree of participation in the actual robbery than Enmund. But that difference in degree of participation did not warrant a death penalty for Hatch and a life sentence for the Enmund.
The real question that must be asked is whether Hatch would have shot one or more of the Douglas family members had he been in the farmhouse with Ake and whether Enmund would have shot either of the Kerseys had he been in the house with his buddies. The answer is just as likely for one as for the other. So why should one live and one die?
The degree of participation is simply not a just or equitable way to split the proverbial baby in these cases. The only just way to resolve the inevitable injustice spawned in cases like Skillern, Hatch and Bishop is to punish with death the individual who fires the fatal shot or strikes the fatal blow. This rule would be a greater degree of equity than the current degree of participation analysis. At least the shooter under this rule would know that he is going to be put to death while his co-conspirators would get life. That’s a sobering realization.
As for cases like Dale Bishop, the courts should have a strict Eighth Amendment proportionality rule that if one jury determines the death penalty is not warranted for the shooter, then any determination by another jury that the death penalty is warranted for a non-shooter should be should be set aside. The very integrity of the nation’s justice system is undermined when a shooter is given a life sentence (and goes free as Sanne did after Skillern’s execution) while the non-shooter is put to death.
Dale Bishop is dead. Jesse Johnson is doing life in a Mississippi prison. Johnson struck Marcus Gentry in the head 23 times with a hammer while Bishop held him in a head-lock. Who was the most culpable, the most deserving of death? It is inequity of the application of the death penalty, among many other legal and moral reasons, that begs for the abolition of state sanctioned homicide.