Guarding Death's Door

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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.

Why can't we have it both ways? Why is it so hard to have a death penalty and make sure only the guilty receive it? Because of cases like The State of Texas v. Delamora. On Feb. 15, 2001, Travis County sheriff's deputy Keith Ruiz was shot and killed while prying open the door to Edwin Delamora's trailer. Ruiz had gone with members of the Capital Area Narcotics Task Force to arrest Delamora on charges of selling methamphetamine. Frightened, Delamora fired his 9-mm pistol through a window in his front door. Prosecutors said the bullet hit Ruiz in the aorta, killing him. Delamora claimed he fired because he thought he, his wife and his two kids were being robbed.

For Earle, it was a difficult case from the start. Because Ruiz was a cop, people would expect a death-penalty prosecution. But Delamora did not have a criminally violent history, which weakened the argument for future dangerousness. On the other hand, a jury might be convinced that a meth dealer who had brazenly fired a pistol through his door had a propensity for violence. Earle remained undecided for months as staff prosecutors worked up the case. During that time, the narcotics task force conducted a second raid that ended in a fatality. And in yet another botched raid, members of the task force held several local residents at gunpoint while they searched their property for pot. They found only ragweed.

Earle has refused to speak publicly about the Delamora case, but associates in his office told me he knew what people were saying around town: those task-force guys were Rambo wannabes; it wasn't surprising that one of them had been shot. But no matter how aggressive the task force had been, it would be politically troublesome for Earle not to seek death for a cop killer. He looked forward to hearing what the death committee would recommend.

Formally called the Capital Murder Review Committee, the death committee is composed of 10 people from the D.A.'s office, most of them senior prosecutors, who hear the evidence in a case and then vote on whether Earle should seek the ultimate punishment. Their recommendation isn't binding — legally, only the D.A. can make the decision — but Earle always considers it carefully. "The amount of information in each case is enormous," says Case, the assistant D.A. "You're looking not only at the crime itself, the evidence there, but, in addition, a person's entire past life is opened for scrutiny ... Maybe the guy was torturing cats when he was a kid." The death committee distills that material for Earle.

Characteristically, Earle picked an interesting mix for the committee. One member is Ellen Halbert, a nationally known victims' advocate who in 1986 was raped, stabbed, beaten in the head with a hammer and left for dead. The only nonlawyer on the committee, she is director of Earle's victim-witness division. Other members include Patricia Barrera, a devoutly Roman Catholic Latina who has a stained-glass cross affixed to her window and tries to reconcile her church's opposition to the death penalty with her duties as a prosecutor; Buddy Meyer, the gruff head of the trial division, who has a handlebar mustache and a picture of a Texas Ranger on his wall; and LaRu Woody, director of the family-justice division, who possesses a strong libertarian streak — she has a SMOKING PERMITTED sign in her office even though she doesn't smoke. First assistant D.A. Rosemary Lehmberg and five other veteran prosecutors round out the group.