Death Penalty in America, Legal Studies 485, Spring 2003

“Capital Murder: A Prosecutor's Personal Observations on the Prosecution of Capital Cases”
Ronald J. Sievert *

American Journal of Criminal Law, vol 27, page 105 (Fall 1999)

* Visiting Professor, University of Texas School of Law; Instructor and speaker for Department of Justice, FBI Academy; Assistant U.S. Attorney, Chief Criminal Division (EDTX) and Austin Division (WDTX); Chief Felony Prosecutor, Jefferson County D.A.'s Office;  J.D. 1977, University of Texas School of Law; B.A. 1970, St. Bonaventure University. The following article reflects the opinions of the author and does not necessarily reflect the position of the Department of Justice or any other government agency.

I prosecuted four of the cases contained in the descriptive index of persons who have been on death row in Texas. It has been many years since I tried those cases and I have often looked back on them with the greater perspective that comes from the passage of time. My experience, I believe, was typical of most death penalty prosecutors. We as a class of trial lawyers understand that experience, but we also feel that, given the often perceived bias of the media and the prevalence of defense attorneys as instructors at most law schools, that neither the public at large nor law students accurately comprehend our thoughts and motivations as we go through the process.

When I applied for a position as an Assistant District Attorney, I was interviewed by a six person team of senior assistants, one of whom asked whether or not I believed in the death penalty. My answer, although sincere, was far from hardline. I told them that I was not excited about it, that it might be appropriate if it proved to be a deterrent, but that to my knowledge that had not been established. In my own mind, it was still an open question. I found out later that the office with whom I interviewed ranked third in the State in capital cases. Nevertheless, despite the moderate attitude demonstrated by my answer, I was hired to begin my career as a prosecutor.

I. Conversion

After approximately one year trying juveniles and misdemeanors I was asked by a felony attorney if I wanted to help try a "dog" murder case (that is, one which is very difficult but nevertheless had to be tried). In preparing for that case I had to study for the first time actual photos of a real murder victim - an innocent human being with a family suddenly and unexpectedly killed for no reason other than the malice of the defendant. Because of technical problems in the case I also had to become thoroughly familiar with all the nuances of the autopsy report. This document discussed in cold detail the damage caused to the victim's body and revealed, without much imagination, the agonies of his death. I felt tremendous inner anger towards the perpetrator of the crime as I reviewed this evidence and that anger drove me throughout the trial until the defendant was convicted and duly punished.

That anger was to recur throughout the year as I subsequently tried a number of defendants who had committed crimes of equal magnitude. Although I was known in the office as an attorney who was capable of having compassion for some defendants, at the time I had little for this particular class of criminals. Wasn't life hard enough without having to worry about whether your wife or friends would survive a trip to the mall or the local 7-11? Could people not even go to sleep at night in their own home in safety? What type of animals were these men who attacked and greatly hurt so many decent good folk in our society on a continuous basis with absolutely no remorse or hint of feeling bad about what they did? You have heard similar statements, but if you reread them and take a minute to reflect on their basic truth in today's society it is easy to understand a prosecutor's conversion. Were these defendants not domestic terrorists who posed a greater threat to security in America from the inside than any foreign country did from the outside? Terrorists who were having their way because America in the last 30 years had lost the will to punish.

Before long, approximately two years out of U.T. law school, I was assigned my first capital case. I was suddenly engaged in devoting all of my energy to accomplishing a goal which a short time before I had publicly and seriously questioned.

It is not the purpose of this article to discuss the law and the facts of the capital cases I tried. I believe it is sufficient to point out that there were five: Walter Bell, Maurice Andrews, Elliot Rod Johnson, Laura Goode, and Lester Leroy Bower. The four men received the death penalty; the female, a motivator and a co-conspirator, but a non-shooter, received life. Johnson has been executed, the impact  of which I'll address later. Andrews was killed on death row. The rest are on appeal. I am saddened by all of these cases, by  the atrocities perpetrated on the victims, by the fact that human beings exist who could do these things, and with the thought that  they too may now need to be executed for the good of society. I would discuss the particular details and the character of each defendant with anyone who has the need to know. I think the readers would be better served, however, if I utilize these pages to disclose from personal experience the prosecution's inner thinking and planning as they approach and try a capital case.

II. Selection of Defendants

There were a number of crimes committed in our jurisdiction which would legally justify the death penalty under Section 19.03 of the Texas Penal Code. When these offenses were committed, there was often an immediate flare in public opinion against the defendant which would lead the elected district attorney to heatedly demand an  indictment for capital murder. Our first duty as trial assistants was to calm him down and try to impose a rational order to the process by which some of the eligible defendants were selected for capital indictment and others were indicted on simple murder charges.

Upon obtaining a hearing in the front office, we would first review all of the facts (regardless of technical admissibility) to the point where we were certain in our own mind beyond any possible doubt that the defendant was guilty. We would hold ourselves to this standard in every criminal case because the last thing any honorable prosecutor would ever want to do, popular fiction and Sixty Minutes to the contrary, is convict an innocent man. All of us took very seriously our oath and statutory duty "to see that justice is done." If we were convinced of the defendant's guilt, we would then simultaneously analyze the case from two aspects. First, how strong was the admissible evidence and second, did the case "cry out" for the death penalty.

Regarding the strength of the case, law students, civil lawyers, and others who have not been educated or are not intimately familiar with prosecution often have no concept of the difficulties of proving guilt in a criminal trial or how much office debate will arise over the courtroom merits of a specific prosecution. The truth is that most prosecutors must work very hard for long hours before trial so that a case will look relatively easy when it is presented and so that the ultimate conclusion will appear inescapable. Juries and observers do not realize that the state's attorneys routinely deal with lost evidence, tests that have not been completed, witnesses who have not been interviewed, witnesses who are undesirable characters or who have short memories and almost no powers of observation, mistakes made in the investigation, and numerous other problems before they can ever put a case together. When that is done they then must think of every conceivable defense and how to counter it. 

While preparing, prosecutors are also thinking about the fact that they are going to have to meet the highest burden of proof in our system of law for all twelve jurors. They know that during the course of the trial that all close evidentiary rulings are likely to go for the defense because they can appeal and the prosecution cannot. Finally they understand that every point they make is likely to be disputed by a dedicated, articulate, persuasive defense attorney who often may have the capacity to confuse the issues and obliterate the truth. It is often much easier for him to shoot holes in the wall than it is for the prosecutor to build it.

We would examine every case with these thoughts in mind and the result was often lively discussion among the attorneys. But in capital cases our analysis of the admissible evidence was even more intense because we knew that the jury was going to subconsciously hold us to the highest possible imaginable burden of proof before they would feel justified in assessing the death penalty. In addition, the trial courts had told us repeatedly that they would bend over backwards to make these cases "clean." This meant that we could not count on any imaginative theories to support our attempts to admit evidence and the defense attorney was going to have his way even more than he might in other cases. Lastly, despite reports I have read from other sections of the country, our judges, and I believe that most courts in Texas, appointed only the very best attorneys to defend capital cases. They were motivated and highly skilled. They were also well compensated by the county for their work and we joked with them more than once about the fact that they were being paid more money by the government for a month's work than we received for a year. We sometimes bitterly wondered why this was so when we were trying to protect society from the defendant and they were working hard to free him which would allow him to once again be a threat to the public safety.

The second question was, did the circumstances of the crime and the defendant's record "cry out" for the death penalty? As was the case with guilt, we had to first be certain in our hearts that this person should die for what they did before we would proceed. There was of course no set rule for that determination and it depended greatly on the individual beliefs of the prosecutor. For me, the crime and the likely death of an innocent victim had to be contemplated in advance, and the history of the defendant had to be such that it was clear he or she was a truly dangerous (and evil) human being. In my own mind, it was now enough that I could deter this one defendant from criminal acts regardless of whether his death would deter others. At the same time, the old fashioned concept of public retribution was beginning to make more sense.

Once we as trial attorneys were personally convinced the defendant should be executed, we would then look at the evidence in light of our theory that it would be best if the community and all potential jurors knew that the District Attorney's office only asked for the death penalty when absolutely necessary. We felt that the way to get that message across was to have the death penalty assessed every time we asked for it. Therefore, we convinced the DA (most of the time) to seek a capital indictment only when the facts of the crime were horrendous, such as multiple execution style murder or where the defendant had a history of prior violent acts which were admissible in court. With this evidence, the jury would have no problem answering yes in response to the critical second question, "Was there a probability that the defendant would commit future violent acts?" In those few instances where the DA did not follow our criteria and bowed to political or police pressure or his own emotions, it seemed that the jury invariably provided the proper balance and the defendant was not sentenced to death.

III. Impact of Race

There has been much written about the disproportionate number of African Americans who have been selected for prosecution for capital murder and who have received the death penalty. Our office had a good mix of attorneys from around the state and a few were classic "good old boys." It would be inaccurate to say there was absolutely no animosity towards black defendants. But although this was many years ago, in our discussions this attitude was rarely, if ever, supported by thinking and arguments that echoed the prejudice and bigotry associated with the Old South. Rather, it always came across as an outgrowth of the fact that these attorneys considered themselves crime fighters and statistics, reenforced by daily observations at docket call, established that a very large percentage of the violent crime, for whatever reason, was being committed by members of the county's minority population. A few prosecutors were thus angry at that segment of the population and I believe they would have had similar feelings whether the defendants were mostly Irish, Italian, Polish, Arab, or African-Americans. In subsequent conversations with law enforcement officials from other nations I have often observed remarkably similar reactions against whatever "group" was considered responsible for a significant portion of the crimes committed in their country, regardless of whether the group came from virtually the same ethnic background as the officials.
Most importantly, I can unequivocally state that race was never a factor in our debates and analysis regard which cases to select for capital prosecution. It was not discussed and I never saw the slightest hint that it was even subconsciously considered. The only matters debated were those that I have mentioned above regards the strength of the case and the character of the defendant as reflected by his crime and his prior record.

Prosecutors were of course aware of race during jury selection. Despite the lengthy interviews characteristic of capital voir dire, attorneys do not really get to know a prospective juror before they have to make the decision whether or not to strike them. Because of this lack of knowledge, there is always the potential for stereotypes (valid or not) to have an influence. Some believe that members of the venire with a Nordic background are highly practical, Mediterraneans are thought to be emotional, elderly people are considered more forgiving, and social workers verboten because of a real or imagined predisposition to rehabilitation rather than punishment and so on. Along these lines, some people have theorized that African Americans may not be good prospective jurors in a capital case because they have historically been persecuted as a race and would therefore sympathize with the prosecuted defendant. In addition, some believe that many blacks have probably been the victims of, or observed, rough treatment in their neighborhoods by the police and that accordingly they would resent police officers regardless of the merits of the case.

Despite these stereotypes and the temptation to follow them, from my observation attorneys did not strike black members from the venire unless there were actual objective signs that a potential black juror did indeed sympathize or psychologically identify with the defendant, was anti-police, or would not follow the law. Even then, prosecutors were aware that they would be open to criticism for any strikes of minorities. But the prevalent attitude was that we were sworn to do justice, which meant convict the guilty and secure the proper punishment. It was not our job while prosecuting these cases to be social engineers. If an attorney honestly believed that there was a significant chance that a black or white venire person was not going to be fair and follow the law, based on whatever reasons, then that attorney did not want to put that person on the jury and risk a verdict which would result in the guilty defendant going free or a retrial of a month-long case. That was the practical logical approach of many prosecutors.

I must admit that after a time many of us started to go out of our way to look for blacks to put on the jury. We might have an honest fear that a particular minority juror might not be fair but we now resolved that conflict in favor of achieving highly integrated juries. When we had numerous black jurors in the case of a black defendant we might be apprehensive for all the reasons noted above but also felt good about doing  what we believed was "right." From personal experience and observation, I can attest that in the last few years Batson n1 has accelerated this tendency in prosecutors. As a general principle, I do not like court decisions that interfere with an attorney's discretion in making peremptory challenges. But there is no question that Batson has forced honest attorneys to set aside stereotypes, overcome objective fears, and strike only when there are clear, race-neutral reasons to justify their actions.

IV. Trial

Individual voir dire and the punishment phase are the two aspects of capital trials that are unique in death penalty cases so I will devote most of my attention to these areas.

The procedure by which each individual juror is brought to the witness stand and interviewed by each side for thirty minutes, at the end of which the government and then the defense must strike or accept, was, I believe, one of the most fascinating exercises in the legal system. Many of us felt that the skill, instincts, guesswork, moves, and countermoves were so challenging that the whole process could almost be packaged and sold as a parlor game if the subject was not so serious and consequential. Our goal was to obtain a jury composed entirely of bedrock solid citizens with common sense who would follow the law. The defense, in our opinion, was looking for people who were against the system, might not relate well with their fellow jurors and would be guided by their emotions instead of the court's instructions. The fact that we were seeking to achieve opposite results often lead to a seemingly endless series of individual battles.

We generally started with a panel of approximately sixty jurors and fifteen peremptory strikes. Both prosecution and defense knew from review of the lengthy jury information forms that they were going to have to eliminate far more than the fifteen allotted if they were going to get the jury they desired. This placed a premium on the ability to draw out a juror's true beliefs to the point where they could be struck for cause. Equally important was the knowledge of how to subtly prepare the juror to withstand the defense's efforts to strike them for cause. In practice, this meant that we would utilize the jury questionnaire and the first ten minutes of questioning to determine if we wanted the juror, and then spend the next twenty minutes either trying to "save" or strike them. It was often incongruous, and the venire persons must have sometimes wondered if we really worked for the D.A. If we liked the juror, we found ourselves saying, "Now you could give probation in a murder case couldn't you?"  When they said no, we would come up with the most sympathetic murderer you could imagine until they realized that if the facts warranted they could give probation. And so it went through a myriad of vulnerabilities that the defense might attack. On the other hand, if we decided that we wanted to strike the juror, you would then really have to get close to and empathize with the juror, and get them to acknowledge their real bias. So we would say something like “ I noticed you hesitated when I asked you how you felt about the death penalty. I understand many people feel it is against God's law, and that this law is higher than what the legislature in Austin might happen to pass one year. If that's the way you feel, if you feel you must obey what you believe to be God's laws and not just go along with what those folks in the state capital are saying, just tell  us. “

This was "straight forward" voir dire. On it's own, it was an incredible study of human beings and practice in human relations. But the contest of wits with the defense went far beyond the "saves" and "strikes for cause" to the point where each side often "faked" or held its breath and gambled throughout the entire two week long period. Thus, if we did not like the juror and believed we could not get them for cause, but wanted to preserve our peremptory strikes, we might go into a save routine to convince the defense attorney we really wanted them, all with the hope that the defense would then strike. If while going through the save routine, we spotted an opening in one of the answers, we might quickly switch and try to strike them for cause, knowing we had only a few minutes left on the clock to get them to admit they could not follow the law in this particular area. At the same time, with jurors we wanted, we would occasionally make an apparent effort to strike for cause, trying to convince the defense attorney we were really worried about them for some secret reason so that they might leave them on the jury, while at the same time hoping we were not completely alienating the potential juror in the process.

This was the intense, high pressure game of capital murder jury selection as it was played in our jurisdiction and others with experience. Fifty or sixty little "mini trials" with each member of the venire that left the attorneys exhausted before we even started the guilt or innocence stage of the trial. I have not done it in years, but I imagine it is still practiced in much the same way. Some may question the maneuvering and apparent attempts at manipulation, but I am convinced that in every case the end result was a truly fair and impartial jury.

The guilt phase of a capital case contains all the drama of a murder case, heightened somewhat by the knowledge that a finding that the defendant is guilty means at least a life sentence and possibly death. Nevertheless, the procedure in the trial at this stage is not unique and I will not dwell on it. The punishment phase was the state's moment, as it should be if the DA was genuinely attempting to get the death sentence only on those who really deserved to be executed. It was always interesting to watch the reactions of the jurors when we produced the penitentiary packet listing multiple felony convictions. The jurors who had been strong for guilt during the first phase deliberations would look at whoever had been weak and nod their heads. You could count on the fact that the juror who had just finished strongly arguing for the defendant would not be such an effective advocate during punishment. In addition to the pen pack, we would also present psychiatric testimony, if needed, and often two or three reputation witnesses of unquestioned stature. If the defense attorney attempted to balance this with his own reputation witnesses, we would quickly turn the tables by asking if the witness had heard about all of the arrests and bad acts of the defendant which could not otherwise be admitted.

The death penalty argument, however, was the ultimate highlight of a state prosecutor's career. It was his job to convince a jury to make the supreme decision, the decision to take someone's life. Technically, you are just trying to tell the jury that the defendant acted deliberately and that there was a probability of future violent acts, but we all knew it was more than that. After reviewing the evidence to show the defendant's intent and logically demonstrating the likelihood of future violence based on the defendant's criminal history and character, you then talked about the need to assess the death penalty. There were some excellent "standard" arguments to support it which had circulated around the Texas District Attorney's Offices that you could adopt, insert your personal interpretation, and make your own. Such were the "they" argument ("You hear about this type of crime and wonder why they don't do something about it. The police and prosecutors have done their jobs. Did you ever wonder who they are? The they who can do something about this crime right now is you.") and the forgiveness argument ("It is not up to you to forgive this defendant, only Mr. and Mrs. Jones the victims he killed, could do that"), n2 as well as the innumerable references to God and the Bible that  were spun by prosecutors with a religious bent.

But although the words and thoughts behind these formulations were good, what was probably far more effective was the moral force you brought with you to the argument. Part of this was anger. I had come from being doubtful about the death penalty to the point that as I personally approached the defendant in some of these cases, reciting what horrible acts he had done, I was filled with such outrage that I sometimes felt that if I had a weapon I might have executed him right then and there. But there was more. You were the avenging voice of the community, the one speaking representative of a just society. At the height of your argument you felt this emanate from your very being as if you were somehow spiritually connected with the county's 600,000 people and you were energetically, persuasively, thunderously speaking their words. You were an instrument. I cannot overstate this feeling, yet words cannot adequately reflect it. It is a very powerful moment. The jury could not help but get the message.

When the first capital case was over and the defendant had been assessed a death sentence, I recall getting very intoxicated with my co-counsel and friends in the office. It was not purely celebration, although there was some of that. We were moved, awed, permanently affected. I tried to explain it to my wife afterwards. "We have just spent thirty days of our life working unbelievably hard to kill a man, don't you understand? Someday its going to happen, because of what we did." She did not understand, nor will anybody who has never prosecuted a capital case.

The impact of that case was lasting, but it is also true that by the fourth one I was no longer as deeply affected as I had been. To me that was an indication that I should probably move on to the broader challenges of the U.S. Attorney's Office. It was there, several years later, working in clean new offices and surrounded by the financial records of crooked bankers and drug defendants, that I received a call from a friend in the District Attorney's office. "The Attorney General's office would like to know if you would awfully mind if they executed Elliot Rod Johnson tomorrow night?" I did mind. I was stunned because I had not thought about this for years. I told him I would call him back, shut my door, had my secretary hold my calls, and thought about Elliot Rod Johnson. I did not want him to die. I did not want anybody to die. But I forced myself to mentally go through the evidence, slowly, as if I had never heard it. There was no question he was guilty. I reviewed his prior record of assaults and robberies. I relived the facts surrounding the murders of jeweler Joe Granado and his assistant, Arturo Mendez, and, for a long time, thought of the wonderful family they had left behind. I felt great sorrow, and I still do today, but I nevertheless called the DA and said "I have no objection." God, make me an instrument of your peace.

During the last few years members of Congress have sought to include the death penalty as punishment for at least thirty-four additional federal crimes. The current procedures for a federal death penalty case, however, are both complicated and confusing while those in the Texas Code are simple and straightforward. The fact is, the number of federal death penalty cases will probably always be limited. The State of Texas, on the other hand, is leading the nation in executions for violations of State law. It is reality for the lawyers here. Each of us must constantly ask ourselves: should we continue with capital punishment in our state?

Recent allegations of "actual innocence" in capital cases certainly cause any objective person to seriously reconsider whether it should ever be invoked. But past charges of wrongful conviction have usually involved, upon thorough examination, procedural as opposed to factual errors. Those who claim failure to match DNA as proof of innocence are somewhat suspect because they are the same people who claim improper collection and analysis when DNA proves their client guilty. Their motives and interpretation of evidence must be closely scrutinized in each case. This is not to say that the goal of the criminal justice system in all cases, and especially in capital cases, should not be absolute certainty of the defendant's guilt. It is hard to object to moratoriums or major changes in procedure in any state which has not met that goal.

No sane person can "like" the death penalty. This is a different matter than supporting its implementation for the overall public good. My mind is always open on the subject, but currently I still support the death penalty in Texas if it is a deterrent to others. I know it is apparently impossible to scientifically determine one way or another if it is a deterrent, but logic as well as anecdotal evidence, dictates that it does restrain at least some people and therefore protects some innocent lives. But it will probably never have the deterrent effect it should have unless individuals know that if they commit a capital crime they will be identified, convicted, and punished. Our efforts at reform, therefore, should continue to be directed at, first, verifying that we have convicted the right person and, second, insuring that potential defendants know that if they commit the crime they will be appropriately punished as soon as the legal system can confirm that the conviction and sentence are just.

 FOOTNOTES:

 n1. Batson v. Kentucky, 476 U.S. 79 (1985).

 n2. In reviewing one of my transcripts, I found the following which is a typical verbatim argument in a death penalty case:

 Our job is a little bit different - my job and [the defense attorneys]. We don't represent the criminal defendant. We represent the  people of the State of Texas and [this] County. All the people. People who want to live in a clean and decent society. The people who  want to live in a society in which they can say good-by to their wives or their husbands in the morning and know at the end of the day they're going to see them again. And not see them the next time laying on a concrete floor with a bullet through their head, or in some ditch, or someplace else dead. Those are the people that we represent.

I am going to try to tell it to you as straight and logical as I can, because I feel that's my job. . .

I don't know - Do some of you feel like I do? That maybe in Twentieth Century America, we've gotten away from the basic concepts and basic values that punishment is a right thing and a just thing in our society? That we have listened to the sociologists and the  psychologists so long that we feel that no man is responsible for his crime, and we always find an excuse for them and let them off much lighter than we should?

 I'm telling you, our fathers, our grandfathers, knew the value of punishment. And we had a better society for it. We didn't have to worry about people like [the co-defendant] - as much like this as it is today - roaming the streets and the highways of the  countryside.

 We believe that the United States of America is the best country on earth. And in many ways, many ways, it is. But, I can tell you  right now, there are countries in this world where they don't have to have neighborhood watches set up. They don't have to have burglar bars on our windows. They don't have to worry about it when wives leave to go to the store, or when husbands leave to go to work. There are countries where you don't have to worry about that, because they wouldn't tolerate something like this. And for some reason, in the last ten or twenty years, we've got to the point where we are scared to punish. And what we get out of it, is that man. (Indicating)

 Justice has only been half served in this case. We're only half way there. Criminals don't fear guilt, they fear punishment. That's what it has to be. That's what they fear.

[The defense] talked a lot about law and society. And the law is there to make sure that every man gets his due. What is this man due after what he did to those people?

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