Spring 2016
Letter from the
Chairman and
President
Closed Chambers:
The Rise, Fall, and Future
of the Modern Supreme Court
Greetings from MCADP! For those
of you looking for summer reading,
this edition of the newsletter includes
reviews of two books with death penalty
themes. One is a fictional account of
a death penalty trial by Judge Ponsor,
who presided over the first federal death
penalty trial in this state this century.
The other is a longer, thought provoking
book by a former Supreme Court law
clerk who looks back at the key cases the
Court decided in its process of restoring
the death penalty from the mid-1970s on.
Unfortunately, once summer is over,
Massachusetts will again be facing
another federal death penalty trial. On
September 14, 2016, jury selection is
scheduled to begin in the retrial of Gary
Sampson. In July 2001, Sampson, after
an unsuccessful attempt to turn himself
in to the FBI (an operator accidentally
hung up on him), carjacked and killed
two people in Massachusetts – Philip
McCloskey and Jonathan Rizzo, and then
moved on to New Hampshire where he
killed Robert Whitney. Although murder
is typically a state crime, a 1994 federal
law made carjacking, when combined
with murder, a potential federal crime
subject to capital punishment, and the
U.S. Attorney at the time, Michael
Sullivan, pushed to have Sampson tried
under this statute. Sampson pled guilt
to the crimes and, after a six week trial
in 2003 to determine the penalty, the
jury sentenced him to death for the
Massachusetts carjacking murders. That
sentence was subsequently overturned
for juror misconduct, and thus the federal
government must retry Sampson if it
continues to insist that he be executed.
Edward Lazarus’s book about his year
clerking for Justice Blackmun in the late
1980s is not new. It came out in 1998.
But it is worth picking up today as hope
is raised that the Supreme Court, which
has limited the reach of the death penalty
in some recent decisions barring capital
punishment of minors and the mentally
retarded, may again declare the death
penalty unconstitutional. Lazarus is not
so sanguine about the Court’s ability to
end up reaching a sensible, constitutionally sound result on this or any other big,
hotly disputed issue. His year seeing the
Court’s inner workings has led him to
conclude that there is a lack of give and
take among the justices that might lead
to a valid consensus, and instead results
often turn on the quixotic and unreliable
views of a few justices.
Lazarus himself does not shy away
from the big issues. His book examines
three major issues that routinely end
up at the Court: civil rights, abortion,
and the death penalty. Although he
focuses mainly on the cases dealing with
those issues that came before the Court
during the year he was there, he presents
extended discussions of the Court’s prior
and later history with those issues. As a
consequence, the book runs to 518 pages.
But never fear, Lazarus is a good storyteller, and his book is a page-turner that
manages to bring even highly technical
legal issues to life.
But now onto death. By the time
Lazarus got there, the Supreme Court
had in the 1972 Furman decision ruled
the then-existing death penalty regimes
arbitrary and unconstitutional, but only
four years later had tuned around in
Gregg v. Georgia and held that some
David M. Ehrmann and James P. Rooney
See Letter Continued on Page 2
MCADP News
James P. Rooney
www.mcadp.org
newly enacted state capital sentencing
schemes could pass constitutional
muster if it appeared they would lead to
reliable determinations that death was
an appropriate punishment in a specific
case. The three justices whose votes
led to this conclusion – Stewart, Powell,
and Stevens – thought that the death
penalty could be made non-arbitrary if
only jury discretion was guided toward
this end. From different ends to the
philosophical spectrum, Brennan and
Rehnquist thought this unlikely, and the
death penalty “inherently ungovernable,”
but it was the three justices in the middle
whose opinions ruled the day.
Of course, once these three justices
had theorized that the death penalty
could be implemented in a non-arbitrary
fashion, the obvious counter from the
defense would involve proof that the new
state efforts were still arbitrary. Such
proof was provided in 1982 by Iowa Law
School professor David Baldus, who
with two of his colleagues completed
an exhaustive study of Georgia’s death
penalty showing that defendants who
killed whites were 4.3 times as likely
to be sentenced to death as those who
killed blacks. Armed with this study, the
NAACP Legal Defense Fund brought
it up in any Georgia case it could, and
eventually one of those cases, McCleskey
v. Kemp, made it to the Supreme Court.
If the NAACP hoped for a better result
than it had achieved in the lower courts,
it failed to account for how little the
justices understood statistics and how
impatient they had become with broadbased arguments challenging the constitutionality of the death penalty, a matter
See Court Continued on Page 2
Page 1
Court from Page 1
that justices thought was settled. And
though the case involved a white victim,
it was the wrong type of victim: a cop.
When Justice Powell wrote the majority
opinion, he reaffirmed his belief in Gregg
that a death penalty system could be fair,
saying Baldus’s study showed only a
possible correlation with race, not proof
of discrimination against McCleskey
individually, but also “confirms that the
Georgia system results in a reasonable
level of proportionality among the
class of murderers eligible for the death
penalty,” i.e., killing a cop is just the sort
of aggravating circumstance that justifies
the death penalty. To which Lazarus
comments, “[h]aving apparently decided
not to come to grips with the evidence
[of race-of-the-victim disparities, Powell]
opted instead to pretend [they] didn’t
exist.”
But McCleskey himself still existed
and still was under the sentence of death.
And so his lawyers looked for another
claim to raise. They already had one in
their pocket, but had difficulty proving
it. McCleskey was one of four men who
were robbing a furniture store when
police officer Frank Schlatt responded
to an alarm and walked in the front door
of the store, only to be quickly killed
by two gunshots. McCleskey was the
obvious suspect because he was the
one robber known to have been in the
front of the store, but none of the store
employees saw the shooting, and hence
Letter from Page 1
The defense sought, unsuccessfully,
to have the court to preclude the death
penalty because Sampson is terminally
ill. While the motion was unsuccessful,
it was most revealing of the thinking of
the prosecution. It is not clear what Mr.
Sampson’s illness is – those parts of the
motion papers were redacted – and, in
fairness to the prosecution, it denies that
Mr. Sampson is really terminally ill. But
fundamentally, the Justice Department
opposed the motion because, in its opinion, there is “no categorical exemption
from capital punishment for the old or the
sick” and there is no national consensus
in favor of barring the execution of the
terminally ill. Thus, it is clear that, at
least in theory, the Justice Department
hopes to execute Mr. Sampson, even if he
is already dying. Such an approach was
MCADP News
the prosecution ultimately relied on a
jail-house informant who said McCleskey
had admitted to being the shooter. The
defense suspected that the police had offered a deal to this career burglar, but he
had denied it, and at the time of the trial
the defense had no proof to offer the jury,
or the federal court when the first habeas
corpus petition was filed. But in 1987,
the defense finally obtained the long
withheld police file on the case, which
made it clear that the informant was an
illegal police plant. The defense raised
this issue in a second habeas petition to
federal court, and the district court judge
agreed that McCleskey deserved a new
trial. The Supreme Court did not. Tiring
of repeated habeas petitions, the Court
adopted a stronger limit than the one
Congress imposed in the habeas statute.
It required that a convict show cause for
not having sought relief on this issue
when first petitioning the federal court
and “actual prejudice” from the alleged
error. Needless to say, the Court then
concluded that McCleskey had not met
this new standard. Ignoring the evidence
that the prosecution had long hidden from
the defense a telling interview with the
informant, the Court concluded that the
defense had not been diligent enough in
investigating this claim. With this brush
off, McCleskey was doomed; he was
executed on September 24, 1991.
The author of this opinion? Justice
Kennedy, whose vote is seen as crucial
to any present day action by the Supreme
Court to limit the death penalty.
rejected by the American Law Institute
when it drafted a Model Penal Code
for capital punishment, a code that was
used to draft the federal death penalty
(although the ALI’s support for capital
punishment was later withdrawn thanks
in no small part to Bedau award winner
Carol Steiker). The drafters wrote that a
defendant guilty of a capital crime may
be entitled to leniency if terminally ill
because “it may be thought that fate’s
judgment on the defendant is punishment
enough and consequently that it is
unnecessary for the state to carry our
an execution in a particular gruesome
context.” This would be a good start
toward finding the national consensus the
Justice Department claims is missing.
See Letter Continued on Page 4
www.mcadp.org
Lethal Injection
Jonathan C. Tetherly
On January 16, 2014, Dennis McGuire
gasped for air for 10 to 13 minutes, writhing in pain, until he died at the hands of
the state of Ohio. On April 29, Clayton
D. Lockett writhed in pain, breathed
heavily, clenched his teeth, and finally
died of a heart attack after 43 minutes
at the hands of the state of Oklahoma.
Joseph R. Wood gasped for one hour and
40 minutes before he died at the hands of
Arizona on July 23.
What is going on? The story begins in
2005, when the European Union declared
itself to be the “Leading institutional
actor and the largest donor in the fight
against capital punishment and torture”
by refusing to sell drugs used in U.S. executions to our states. In 2011, American
makers of Sodium Thiopental, a key
ingredient in the execution drug protocol,
stopped making the drug, in response
to backlash they had been receiving for
doing so.
This caused a dilemma for the executors. What could they do? Missouri
tried buying Propofol, but that provoked
a threat from the European Union to
restrict its sale to our country, and given
that 95% of medical operations in the
U.S. use this anesthesia drug in medical
operations, the threat by the E.U. had to
be respected.
Finally, those intent on continuing
to execute turned to compounding
pharmacies to get pentobarbital. This
custom made untested; compounding
pharmacies don’t come under Food &
Drug Administration jurisdiction. And in
case you and I get too nosy about what is
going on, Tennessee, Georgia, Oklahoma,
Missouri, Louisiana and Arizona, among
others, have passed or have pending
legislation securing secrecy of execution
operations. Oklahoma’s secrecy law was
upheld in their supreme court just four
days before Clayton Lockett’s torturous
death.
Last September, 2015, and then
again in October, Governor Fallin of
Oklahoma issued stays of execution to
Richard Glossip, a probably innocent
man. He is still on death row. Richard
was the plaintiff in the June 29, 2015,
U.S. Supreme Court decision that ruled
by a typical 5-4 majority that the use of
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The Hanging Judge, by Judge Michael Ponsor
Alan Jay Rom
Midazolam, the first drug in the execution
cocktail, a sedative, did not violate the
8th Amendment against cruel and unusual
punishment. The four dissenting justices
cited the state’s inability to find the other
two execution drugs, Sodium Thiopental
and Pentobarbital, which respectively
paralyze and stop the heart, as reasons
for their dissension. Justices Breyer and
Ginsburg issued an additional dissent,
stating their belief that the death penalty
itself may violate the 8th Amendment.
Virginia offers a study in the continuing struggle over the chemicals issue.
Last year the State Senate voted 23-14
for a bill by Democratic Senator and
Minority Leader Richard Saslaw to keep
secret the source of execution drugs, so
that manufacturers would continue to sell
them to the Commonwealth. Democratic
Governor Terry McAuliffe supported the
bill. But surprisingly, the overwhelmingly Republican House killed it, 42-56.
Opposition to the death penalty and
government secrecy were credited as the
reasons for its failure. Though supporters
of the bill believed that its failure might
bring back the electric chair, Governor
McAuliffe has since rejected that effort.
Instead, he has moved to use compounding pharmacies to produce the drugs
and to shield their identities. Arkansas,
Missouri and Ohio are examples of states
whose execution schedules have been
delayed by the scarcity of proper chemicals, and which have also looked toward
compounding pharmacies.
And there is good news about
pharmacies. The American Pharmacists
Association (APhA) has voted to
discourage pharmacies from participating
in executions, mirroring the International
Association of Compounding
Pharmacists (IACP) in their opposition.
This move by pharmacists closes the last
health care provider gap in opposition to
participation in executions.
Making change in the death penalty
continues to be a long, slow, muddy slog.
But the chemicals availability problem
has added to growing unpopularity of the
death penalty to threaten its existence.
Will states throw in the towel, one by
one? Will the U.S. Supreme Court finally
make a dramatic decision? Time will tell;
but time appears to be on our side.
MCADP News
Massachusetts was the scene of a
Federal Court trial resulting from the
Boston Marathon bombing in April
2013. As a result of that trial Dzhokhar
Tsarnaev faces the possibility of a death
sentence being carried out in a state
that has been death penalty-free since
1984 when the Supreme Judicial Court
invalidated the last death penalty statute
existing in Massachusetts. However, this
case was not the first case to have the
death penalty as a distinct possibility in
a trial in Federal Court in Massachusetts,
nor will it be the last, as the Gary
Sampson case returns for a retrial on the
penalty phase in the Fall.
Judge Michael Ponsor presided over
the first Federal Court death penalty trial
nearly 14 years ago involving a nurse,
Kristin Gilbert, who was convicted of
injecting patients in the VA Hospital in
Northampton with a drug that resulted in
four fatal heart attacks. Former MCADP
President and Board Member, David
Hoose, was one of the lawyers on the
defense team. The penalty phase was a
close decision, with the jury voting 8-4
for imposition of the death penalty. Since
the verdict had to be unanimous, she was
given life imprisonment.
At the time, there was no other sitting
judge in the state or federal courts in
Massachusetts who presided over a trial
that could have resulted in the imposition
of the death penalty, the last time the
death penalty was implemented being
1947. Having appeared before Judge
Ponsor many times, and having read his
novel, The Hanging Judge, I know that
this case changed him forever. While
lawyers such as David Hoose have
experienced the burden on their shoulders
for the defense of those subject to the
death penalty, most judges, including
Judge Ponsor, had only understood the
issue intellectually. This case made it
ever so real.
The emotional toll resulting from the
Gilbert case found a creative outlet in his
first published novel, The Hanging Judge.
Filled with mystery, intrigue, and many
carefully interwoven subplots, this novel
www.mcadp.org
is the story of a fictional Federal judge,
David Norcross, who presides over the
murder trial of Clarence “Moon” Hudson,
an African-American male accused
of a drive-by shooting that resulted in
the death of both a drug-dealer and a
bystander. The case, originally brought
in state court (a state in which the death
penalty does not exist), is transferred to
Federal Court by an ambitious United
States Attorney so the death penalty
could be sought. Judge Norcross starts
out with a goal of ensuring a fair trial,
but as the case proceeds, the nature of
the penalty faced by Hudson takes an
emotional toll on the judge’s personal
life, as well as his professional one, and
on the lives of each of the well-developed
characters that Judge Ponsor has created.
The reader’s emotions are taken for a
roller-coaster ride between believing
Hudson is innocent and guilty through a
review of the evidence, credibility of the
witnesses and legal strategy moves by the
prosecution and defense attorneys.
When Judge Ponsor speaks about
his book, he reads selected passages to
make the point that if we are going to
have a death penalty, our eyes should be
wide open as to what this means – the
deliberate taking of a life. His conclusion was that no matter how diligent
and fair judges can be, no matter how
attentive juries can be, and no matter how
thorough lawyers can be on both sides,
mistakes can and do happen and the
deliberate taking of a human life is the
cost of a mistake.
Over 1,300 people have been executed
since the death penalty was restored by
the Supreme Court in 1976 and over 140
people sentenced to death have been
exonerated. We do not know exactly how
many people who were executed may
have been innocent, but we know that
there have been such cases.
While a novel, The Hanging Judge
exposes how the death penalty judicial
system works, taking the reader step-bystep, through the workings of the process
by which the state, or in this case, the
Federal government, can take a life.
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