COMMENTARY — Let’s call the whole thing off: As policy and for principle, no more executions
Published: January 31st, 2019
OKLAHOMA CITY, OK – January 2019 – Over the past several years, doubts about the validity of death sentences and executions in this state, both past and pending, have increased. There is absolutely no reason to believe that there is any likely scenario in which this state of affairs will change in the future.
The fact that policies or procedures are controversial is not sufficient reason to end those policies and practices. Law and governance is a rough science, even 25 centuries after the ancient Greeks developed the earliest forms of representative and limited government.
However, when it comes to capital punishment in Oklahoma and in the United States, there is and has been for some time more than a disagreement among citizens of good will (or not) or between factions in our deeply divided society.
In These Times …
We are living through a “tipping point” era for many issues.
At least arguably, the most significant issues are those attendant to human life itself.
It is impossible to sustain any pretense that contemporary controversy over capital punishment is the result of mere factionalism or ideological excess.
Executions are controversial today because of the actual practice of executions, and because of doubts about the accuracy of many death sentences, and because of documented (and legally ratified) examples that inadequate legal counsel or tainted jury pools led to bad results.
And because of, well – the foregoing sentences are a partial sketch.
On January 21, the U.S. Supreme Court, without comment declined to take a new look at likely racial bias in the processes from two Oklahoma cases involving death row inmates, including Julius Jones, whose conviction for an Edmond murder has been the subject of thousands of news stories and commentaries, including dozens from this writer (https://capitolbeatok.worldsecuresystems.com/reports/commentary-bandana-dna-evidence-inconclusive-fight-over-julius-jones-innocence-continues) and in other reports (http://city-sentinel.com/2018/11/oklahoma-naacp-asks-district-attorney-to-release-julius-jones-case-files/) from my colleague Darla Shelden at The City Sentinel.
Court-watchers know that some unusual things have taken place when it comes to this case.
The High Court repeatedly delayed its decision to decide not to decide. The confusing description just offered is deliberate, and the best way this writer could find to hint at a divided Court, one that may have ultimately “passed” on this particular case in order to reach one or more of the other capital punishment cases that raise, as the Jones case does, significant concerns.
Fighting for Julius Jones
Late on Friday, January 25, 2019, Oklahoma death row prisoner Julius Jones filed a Petition for Writ of Certiorari (https://drive.google.com/file/d/156QmIBuNvAAJfTnJL53v37H5AVvoZsEm/view) asking the U.S. Supreme Court to consider newly discovered evidence showing racial prejudice inflamed at least one juror who voted to convict and sentence Jones to death. In November 2017, Mr. Jones’ legal team learned a juror in Jones’ original trial informed the judge that another juror said the trial was “a waste of time and ‘they should just take the n***** out and shoot him behind the jail.’’ The judge took no action in response to the information and the juror who made racially biased comments was not removed. (Petition for Writ of Certiorari at page 5).
These lawyers are not delusional in taking yet another stab at justice for Julius.
They know that the U.S. Supreme Court has unambiguously condemned racial prejudice operating through the power of the law, seeming especially sensitive when matters of literal life and death are involved. Chief Justice John Roberts has explained that “our law punishes people for what they do, not who they are” and that any departure from such a neutral and principled approach might be “exacerbated” if and when “it concerns race.”
Jones’ lawyers are asking the Court to allow their petition because Oklahoma seeks to execute their client “without a single court having reviewed or allowed Mr. Jones to factually develop the merits of his newly-available federal constitutional claim.” (Petition for Writ of Certiorari, page 44).
To touch on only key points from the tragic murder which occurred in 1999 in Edmond, the witness who described the killer of her brother saw and described a person more like Christopher Jordan – Jones’ friend who became the main prosecution witness against Julius.
Photos (https://drive.google.com/file/d/1I3SZT55f_3mMqUm5WgqeV-W_sbqCxSxt/view) from the time before the killing demonstrate that Jones could not be the person she described about the vehicle theft and killing.
Julius had short, “crew-cut” hair – not the longish curly hair sticking out from under a red bandana that she described.
As for Jordan’s “testimony,” he gave six inconsistent versions of the theft/murder after his own arrest. He was ultimately incentivized, in order to avoid his own possible death sentence, to finger Julius. The original Jones lawyers presented none of this information at trial.
In fact, they didn’t call a single witness for the defense – not even his family members who have said they were playing a board game with Julius at the time of the killing
In the end, the main witnesses against Jones were Christopher Jordan and two others. Jurors were given the impression that Jordan would serve decades for his role in the robbery/murder, but he was released in 2014, after only 15 years. One summary of relevant information notes that two prisoners, years after the trial, heard Jordan bragging that he had set-up Julius and would get out … after 15 years.
Another witness against Julius was Ladell King, who actually for a time took possession of the vehicle stolen at the time of the killing. King was never prosecuted at all for his supportive role that awful night – and got less than the sentence mandated in statute for habitual offenders in a separate case. (Third Application for Post-Conviction Relief, pages 11, 13). (https://drive.google.com/file/d/1nbwIvqb_dIyKNY5PA9fiTkWIZtX-Ngyw/view)
Finally, it is not yet clear the High Court of the land has heard about: a cop who expressed racial animus toward blacks, the juror who said the “N-word” (the word used to describe Jones) should be taken out behind the jail and killed, and other troubling details of the legal proceedings that put Julius Jones on death row. In the Pena-Rodriguez case, the Court said a jury’s impartiality erodes, and “systemic injury to the administration of justice’ realized, where even a single juror’s attitudes towards a defendant are infected with racial prejudice.” (Petition for Write of Certiorari, page 43).
And, one last time on that red bandana. The local prosecutor here in Oklahoma County declared all questions were over after Jones DNA was found on it. Under-reported, however, and not mentioned at all by the D.A., was that there was DNA (http://city-sentinel.com/2018/10/commentary-bandana-dna/) from at least two others on said bandana.
Time for Oklahoma leaders to think ahead
Regardless of how new arguments from the Jones team turn out, it is time for the state of Oklahoma to take responsibility for its own destiny in this entire matter of capital punishment.
There are reasonable and informed human beings who doubt that some death row inmates, particularly Jones and Richard Glossip (http://city-sentinel.com/2016/02/more-than-the-richard-glossip-case-for-the-constitution-for-social-justice-for-reasons-pragmatic-and-humane-put-the-death-penalty-into-mothballs/) are guilty of the crimes for which they have been sentenced to death.
These doubts are based on the facts in each case, including information not widely known or understood at the time of the original trials.
Problems with execution protocols and practices in every state that still employs capital punishment are thoroughly documented and need no repetition here.
Rather than the result of a well-thought-out policy making process, the new (and as yet unused) system for executions in Oklahoma is the result of maneuvering that initially seemed intended to avoid discussion about broader issues of captal punishment (https://capitolbeatok.worldsecuresystems.com/reports/analysis-death-penalty-review-commission-issues-sweeping-transformative-recommendations).
Following the infamous botched executions (https://capitolbeatok.worldsecuresystems.com/reports/mix-up-debacle-delay-lethal-injection-protocol-flaws-trigger-controversy-introspection-and-reconside) of Clayton Locket and Charles Warner, the Oklahoma DOC is now working with the state Attorney General’s office to develop a new death penalty protocol incorporating nitrogen hypoxia (http://city-sentinel.com/2018/03/oklahoma-to-become-first-state-to-use-inert-gas-inhalation-execution-protocol/), which has never been used before in the U.S. Until the new procedure is in place, all Oklahoma executions remain on hold.
Assuming good intentions by the varied players, why would any student of current legal trends choose to expose the state of Oklahoma, with 10 exonerations, to three, or two, after-execution exonerations? Even one such possibility should fill us with dread.
These may strike some as pragmatic arguments, and perhaps they are. Certainly, returning to the execution system in these circumstances would be folly.
Yes, the U.S. Constitution allows for executions. It also allows for the exercise of wisdom in the development of government policies and practices within a constitutional framework.
Here’s the point:
Let’s call the whole thing off. Oklahoma has enough wisdom, discernment and authority in its existing gene pool of elected and appointed officials to craft alternatives to execution, assuring continued incarceration for the guilty, finding a path to freedom for the innocent who have been convicted, and seeking truth for those whose guilt is uncertain or dubious.
The Sooner State’s moratorium on executions, in place for the past four years, should be converted into permanent policy. Practical considerations aside, the events of these past few years should be viewed as a call to something better. It is time for an end to one era, and for the start of another.
No more executions in Oklahoma.
Now and forever more.
Note: McGuigan is founder of CapitolBeatOK.com, an online news service, and the editor/publisher of The City Sentinel newspaper.