The Politics of Execution

Interview with Stephen Bright, Part 2

By: Alex Roth

Stephen Bright is the Director of the Southern Center for Human Rights (SCHR) in Atlanta, Georgia. He is one of the foremost capital defense and appellate attorneys in the country, and one of the most outspoken and tireless opponents of the death penalty. I had the good fortune to be able to work at SCHR for a short time this past spring to help with some death penalty cases, and I asked Stephen to tell New Abolitionist readers a little about his thoughts and experiences.
[The first part of this interview appeared in the August 1998 New Abolitionist.]

[Alex Roth]: You have also written many articles on race and the death penalty. Do you think racism is just as much a problem with the death penalty now as it was when the death penalty was declared unconstitutional in 1972 precisely because it was applied in a racist manner?

[Stephen Bright]: Without a doubt, racism runs rampant through our criminal justice system, and it is particularly dangerous with regards to the death penalty. Capital punishment itself is one descendant of lynching and other forms of racial violence and racial oppression in America. But now the lynchings are openly sanctioned by the government and our legal system. Those being executed and awaiting their deaths, however, are no different from those selected for execution in the past: virtually all are poor, about half are members of racial minorities, and the overwhelming majority were sentenced to death for crimes against white victims. Many suffer from severe mental impairments or limitations and many others were the victims of the most brutal physical, sexual and psychological abuse during their childhoods.

The level of racial discrimination in capital cases in Georgia today is almost identical to that seen before the death penalty was abolished in 1972, and the figures in Georgia are more or less indicative of the situation across the country. Although over 60 percent of the victims of murders in Georgia are African American, 20 of the 22 people executed under the current law involved murders of white victims. Twelve of the 22 people executed in Georgia since 1973 have been African Americans. Six of these were sentenced to death by all-white juries. And while interracial murders make up less than 10% of all homicides in the state, Georgia prosecutors seek the death penalty in 70 percent of cases involving crimes committed by black people against white victims. They seek the death penalty in less than 35 percent of cases involving other racial combinations.

And the courts are certainly not willing to do anything about this sort of racism. In 1987, the Supreme Court held that Georgia could carry out its death penalty law despite these sort of racial disparities. The Court accepted the racial disparities as "an inevitable part of our criminal justice system," and expressed its concern that the defendant's claim, "taken to its logical conclusions throws into serious question the principles that underlie our entire criminal justice system."

The courts aren't even willing to look at individual instances of racism in death penalty cases. For example, two African-American men sentenced to death by an all-white jury in Utah, Dale Pierre and William Andrews, were executed even though jurors received a note that contained the words, "Hang the Nigger's" (sic) with a drawing of a figure hanging on a gallows. No court ever held a hearing on such questions as who wrote the note, what influence it had on the jurors, and how widely it was discussed by jurors.

Similarly, Wilburn Dobbs, an African-American man who faces execution in Georgia for the murder of a white man, was referred to at his trial as "colored" and "colored boy" by the judge and defense lawyer and called by his first name by the prosecutor. Dobbs' lawyer, who didn't know for certain until the day of his trial that he was going to represent Dobbs, made racial slurs throughout the trial. He said he thought blacks are less educated and less intelligent than whites, but that they make good basketball players. He told the jury how his "granddaddy had slaves," and referred to the black community in Chattanooga as "black boy jungle." He also said that he uses the word "nigger" jokingly. Despite all this, however, the federal appeals court found that racial prejudice of the judge, prosecutor, defense lawyer and jurors did not require [Dobbs'] death sentence to be set aside as it "cannot be said that the trial judge's or defense lawyer's racial attitudes affected the jurors' sentencing determination."

The lawyer in Dobbs' case certainly had a lot to do with his being sentenced to death. Are all court-appointed defense lawyers that bad?

Maybe not all, but certainly most of them. One extensive study of six southern states concluded that capital trials are "more like a random flip of a coin than a delicate balancing of the scales" because the defense lawyer is too often "ill trained, unprepared....[and] grossly underpaid." And in Philadelphia, which, after Houston and Los Angeles, has the third highest number of death cases, an article revealed that the quality of defense lawyers is so bad that even officials in charge of the system say they wouldn't want to be represented in Traffic Court by some of the people appointed to defend poor people accused of murder.

In Houston itself, the city with the most capital cases in the country, there have been at least three documented cases of court-appointed defense lawyers falling asleep in court. As a Houston newspaper described one of these cases:

"Seated beside his client - a convicted capital murderer - defense attorney John Benn spent much of Thursday afternoon's trial in apparent deep sleep. His mouth kept falling open and his head lolled back on his shoulders, and then he was awakened just long enough to catch himself and sit upright. Then it happened again. And again. And again.

"Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the Nov. 19, 1991 arrest of George McFarland in the robbery killing of grocer Kenneth Kwan.

"When state District Judge Doug Shaver finally called a recess, Benn was asked if he truly had fallen asleep during a capital murder trial.

"'It's boring,' the 72-year-old longtime Houston lawyer explained."

The trial judge explained, and the Texas Court of Appeals agreed, that this didn't offend the Sixth Amendment right to counsel because "the constitution doesn't say that the lawyer has to be awake."

As I said, there are at least two other cases of a defense lawyer falling asleep in a death penalty case just in the city of Houston alone. Now I think that when one city - the capital of capital punishment - has three cases in which death was imposed and upheld by the state's highest court even though the defense lawyers were asleep during the trials, it speaks volumes about the lack of commitment to fairness by courts. But equally shocking examples are found throughout the country.