Guarding Death's Door

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The career of Travis County district attorney Ronald Earle coincides precisely with that of the modern death penalty. Earle was first elected D.A. in 1976, the year the Supreme Court reinstituted capital punishment. At the time, he enthusiastically backed the decision. "I thought it was too simple to talk about," he says in a clipped Texas cadence. But after prosecuting violent crime for a quarter-century, Earle doesn't believe capital punishment is so simple. To be sure, he still supports death for those few brutal murderers he believes would never stop killing, even in prison. And Earle can still summon the swagger of your typical TV district attorney. He says executing serial killer Kenneth McDuff, who is thought to have murdered at least 11 people, was "like shooting a rabid dog."

But like the rest of us, Earle has now watched broken souls walk free after years of wrongful incarceration; 56 have been released from death row in the past decade, either because they were deemed innocent or because of procedural mistakes, according to the Death Penalty Information Center. Unlike the rest of us, Earle still has to enforce the death penalty. He is often plagued by doubts when he must decide whether to seek death. "I agonize over it," he says. "There was a time when I thought the death penalty ought to have wider application, but my views have evolved." Today deciding whether to seek the death penalty is easily the hardest part of his job.

For a D.A., especially one from Texas, Earle is unusually vocal about his doubts. But many other prosecutors share his mix of philosophical support for the death penalty and nagging uncertainty about which cases are right for it. "When I first became prosecutor and had a death-penalty case, I looked forward to it ... Now I get one and dread it," says Stanley Levco, who has been the prosecuting attorney in Vanderburgh County, Ind., since 1991. Levco strongly backs capital punishment, but he says capital cases take so long and cost so much that he wonders which ones are really worth it. "I tell this to the victim's family: there is an excellent chance this person will not die."

D.A.s have other concerns too. The National District Attorneys Association has called for DNA testing "at any stage of a criminal proceeding--even up to the eve of execution"--and stiff penalties for defense lawyers who don't adequately represent capital suspects. But Earle is going further. He is trying to do in his corner of Texas what death-penalty opponents say is impossible: enforce capital punishment flawlessly, ensuring that the innocent never spend a day on death row and the guilty are sent there only after trials free of bias and vengeance. Earle hopes that by raising every conceivable doubt about defendants before he decides to seek the death penalty for them, he can slay the "demon of error" invoked by Governor Ryan and achieve total certainty in the capital system.

It's a laudable goal. The trouble is, that's not his job. Jurors are supposed to determine innocence, and judges are supposed to ensure fairness. Most prosecutors feel an intense obligation to let the system work as it's built; crusading just isn't part of the prosecutorial gene pool. But Earle believes that, as he puts it, "the system cannot be trusted to run itself." It needs a watchdog, a backup.