Guarding Death's Door

(7 of 10)

After Danziger-Ochoa, Earle realized how lucky he had been that he had not sought the death penalty against the men. He was more determined than ever to ensure that no innocent went to the death chamber--he couldn't live with himself if that happened. But is it possible to create a flawless system within a flawed one?

You might think that deciding whether to seek the death penalty is a simple matter of applying the facts of the case to the letter of the law. But capital statutes contain wide room for interpretation. To win a death sentence in Texas, for instance, prosecutors must first convince jurors "beyond a reasonable doubt" that a defendant is guilty of capital murder, which is an ordinary murder compounded by at least one of several aggravating factors, ranging from murdering someone you know is a cop to killing a child under 6. Second, the jury must find--again, beyond a reasonable doubt--that "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."

Consider the language. The prosecutor must erase any reasonable doubts that jurors can conjure not just about a past event but also about future ones. The latter presents an enormously tricky challenge for Earle's effort to achieve certainty, since no one can be sure about the future. In the face of that incertitude, many prosecutors punt: they seek the death penalty more often than not and allow jurors to determine whether the defendant is truly guilty and so dangerous that he must die. In the past decade, Earle has asked for the death penalty only 17 times out of a total of 63 capital-murder cases--27% of the time. (In Texas "capital" murder doesn't necessarily mean a death-penalty case; it's the designation for any aggravated murder, and prosecutors have full discretion in deciding whether to seek death in such cases.) By comparison, according to David Baldus of the University of Iowa, Philadelphia prosecutors seek the death penalty in about 70% of eligible cases. The figure is roughly 60% in Lincoln, Neb., and 45% in Georgia and New Jersey.

In other words, if Earle wants moral certainty that no innocent is ever executed, other prosecutors want another kind of moral assurance--that most killers will get the maximum punishment possible. Appellate courts are left to sort out mistakes. Who's right? Actually, both are. According to Texas law, guilt and future dangerousness are matters for jurors, not prosecutors, to decide. Earle shouldn't shoulder responsibility for the entire system. But the U.S. Supreme Court has made clear that the prosecution's main job "is not that it shall win a case, but that justice shall be done." Texas has incorporated similar language into a law, one Earle often quotes.