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Tales of Murder, Murderers and the Death Penalty at the Supreme Court

March 25, 2013 at 12:00 AM EDT
A new book examines the murders, murderers and capital punishment overseen by the highest court in the U.S. Jeffrey Brown talks with veteran journalists Martin Clancy and Tim O'Brien about "Murder at the Supreme Court," which documents some of the most notorious crimes and subsequent penalties.

GWEN IFILL: Next: a look behind the headlines at real-life crimes and punishments at the highest court in the land.

Jeffrey Brown has our book conversation.

JEFFREY BROWN: They begin as often grisly tales of murder, the stuff of the tabloids and nightly news, but some of these crime stories end up in the Supreme Court, part of a continuing and evolving debate in this country about the death penalty, its methods, its effectiveness, its morality.

A new book explores this history. It’s titled “Murder at the Supreme Court: Lethal Crimes and Landmark Cases.” Its authors are veteran journalists Martin Clancy and Tim O’Brien.

Welcome to you.

MARTIN CLANCY, Co-Author, “Murder at the Supreme Court: Lethal Crimes and Landmark Cases”: Thank you.

TIM O’BRIEN, Co-Author, “Murder at the Supreme Court: Lethal Crimes and Landmark Cases”: Thank you.

JEFFREY BROWN: The title sounds like an Agatha Christie mystery, right, but you’re after something quite serious.

Why, Martin, were you — why a book on murder, the law and the Supreme Court?

MARTIN CLANCY: Because the crimes intrigued us.

I mean, the cases, legally are very interesting. And Tim can speak to that. But, as reporters, we were both intrigued by the stories behind those crimes. I mean, there are human beings, victims, perpetrators, families. And we take you literally from the scene of the crime to the court.

JEFFREY BROWN: And the stories become law at a local level and then you’re telling us about how they bubble up into the Supreme Court.

TIM O’BRIEN: Yes. These are all landmark cases. We address 15 cases; 10 of them split the Supreme Court five to four. They raise very difficult legal questions, philosophical questions.

These are initially — our title was going to be “Murder at the Supreme Court: The Crimes That Made the Law,” because these are the crimes that went to the Supreme Court and the court used these crimes, these cases to define what capital punishment is all about, how it may be implemented in the United States.

JEFFREY BROWN: So, what did you find about the evolution of the — maybe give us an example of the way the court looked at cases like this.

TIM O’BRIEN: Well, what we found is that the court is in great disarray.

There’s enormous division on the court, not only about capital punishment itself, but how to decide capital punishment cases. To what extent should the questions before them really be left to juries and state legislatures? For example, the Supreme Court ruled that a defendant who was mildly retarded cannot be executed. A defendant who is 16 years old cannot be executed or 17 years old, even though some 17-year-olds are just as cold-blooded as a 30-year-old killer.

So you have that big debate, who decides? The Supreme Court ruled many years ago in defining what is cruel and unusual punishment that it draws its meaning from the evolving standards of decency that mark the progress of a maturing society.

JEFFREY BROWN: Well, I mean, the stories are about characters. And you’re used to telling these stories, but the court is also human beings, right? And that changes over time. And that’s what you tell too.

MARTIN CLANCY: Very much so.

I mean, there was a case that made really landmark law before the court in 1946. You couldn’t try to execute somebody twice. But you take that case back to where it began, and it began in Louisiana, where they had a traveling — literally, a traveling electric chair. It would go from county to county. It would be displayed on the county courthouse during the day.

We talked to a man who went there on a sixth-grade field trip. And at night, they would bring it into the courthouse and execute. Well, in 1946, there was a black man named Willie Francis, 17 years old, who had killed a pharmacist. And they put him in a chair. And as our witness said, the executioner, said “Goodbye, Willie,” and Willie didn’t go anywhere.

That case made it to the Supreme Court. The justices decided it would be constitutional to put Willie in the chair again. But Justice Frankfurter was so distressed — he voted for the execution. He felt he had no choice. But he was so distressed, he reached out to a member of the Louisiana bar to try and stop that execution in Louisiana.

He didn’t. Willie Francis was executed.

TIM O’BRIEN: With so many of these cases, the decisions are very important, no question about that.

But the stories that precede the decision and that follow are just fascinating. I found that with so many Supreme Court cases, but especially these death penalty cases. One of the big death penalty decisions is Gregg v. Georgia, when the Supreme Court reinstated capital punishment in 1976.

We all thought that Gregg then would be the first person to be executed, a Georgia defendant. But on the eve of his execution, he wound up escaping from prison with four of the worst murderers in Georgia history. They went up to North Carolina. They got into a bar fight. Gregg apparently made an unfortunate comment about the girlfriend of one of the others and wound up being murdered by his co-escapees.

These stories are all made-for-television movies.

MARTIN CLANCY: You can’t make this up.

JEFFREY BROWN: And yet they’re — and they’re unbelievable, but they’re also really raw. And they’re horrible, in many cases.

TIM O’BRIEN: One of the issues we had with this book is, to what detail do we go into the gruesomeness of these crimes?

And we were persuaded by some prosecutors. I said — I asked, why do you have to use those gruesome pictures? He said, we shouldn’t sanitize this for the jury. We should let the jury, who is going to make a life-or-death decision, see what this person did. I got to thinking, maybe that’s what we should do as well.

MARTIN CLANCY: And we did.

We published some photographs with a warning that not everybody wants to see these. But these are the pictures that jurors see when they condemn someone to death.

TIM O’BRIEN: I admit I’m uncomfortable with that, but I think it was the right thing to do.


Where are we now in this issue? I mean, the application of death penalties is down in this country. There’s more action, I guess, at the state level. Where would you say we are now in this debate?

MARTIN CLANCY: Well, Maryland will be the 18th state to ban the death penalty in this country. And it’s been a gradual process. I think that’s where we’re going.

TIM O’BRIEN: It is really in decline.

You have maybe 15,000 homicides a year. We have 3,100 inmates on death row. But the number of executions are in the 40 to 50 a year. So, it’s not being practiced. It may be on its way out.

JEFFREY BROWN: And yet there is still support.

In the end of the book, you guys write about the many problems you found with the death penalty, unequal applications, some of the things you just talked about, the — including the racial factor, right, whether it acts as a deterrent or not, the old argument there.

And yet I just saw still support for it, 63 percent in favor of the death penalty for a person convicted of murder.

MARTIN CLANCY: Absolutely.

What’s interesting about that is that is if you look at the data of the polls, most people want to keep the death penalty on the books. Most people also don’t believe it deters crime. The support for the death penalty appears to be what pollsters would say is soft.

JEFFREY BROWN: What do you think?

TIM O’BRIEN: Well, I think the greatest motive behind the death penalty today is retribution.

And people think it’s justice. We — this is not an advocacy book. And we make no moral judgments about the death penalty at all. But we do draw some conclusions, that, if you’re rich, you’re not going to get a death sentence. If your victim is a white person, you’re much more likely to get the death sentence than if your victim is a minority.

That should play no part in it at all. There are so many arbitrary factors, that we have concluded it doesn’t serve the purpose that many people think it does.

MARTIN CLANCY: The smartest men in America, I think, have worked for over 200 years to figure out a rational way to administer the death penalty. As far as we’re concerned, they haven’t figured it out.

JEFFREY BROWN: All right, the new book is “Murder at the Supreme Court.”

Martin Clancy, Tim O’Brien, thank you both.


TIM O’BRIEN: Thank you.