On Friday, November 6, I gave the keynote address at the annual meeting of the Oklahoma Sociological Association, at the University of Oklahoma. The talk concerned recent research I conducted into the death penalty, while writing my first novel The Midnight Man. Below is the full text of that speech.
Oklahoma Sociological Association Keynote
November 6, 2015
Hello everybody. Thanks for having me. My name is David Tomlinson. I was born in Stillwater, which pretty much doomed me to life as an Oklahoma State fan, and grew up in the town of Perry, about fifteen minutes from there. I’ve lived in Oklahoma for nineteen of my now forty-four years. The first time I left was after high school, to get a degree in creative writing, from UCSD, in California. My wife and I eventually settled in Dallas, where we live now, with our two daughters.
Six years ago I decided to quit my job in advertising to write a novel. I wanted to write something that captured the complicated nature of this state, the larger-than-life uncles and grandparents and friends and mentors I grew up loving and sometimes fearing. I wanted to write a kind of historical thriller about the Oklahoma City bombing. Most of you probably know that Timothy McVeigh was caught in Perry, by a state trooper named Charlie Hanger. My little sister used to play with Hanger’s daughter.
Writing a book is a weird experience. What you imagine writing and what you actually end up with are two very different things. Instead of a thriller, I wrote a literary novel about five strangers who – in the year immediately preceding the bombing – overcome their various racial, political, economic, and religious differences, to form a kind of ad-hoc family. The book is called THE MIDNIGHT MAN. Last year I finished it, then found an agent, who’s now trying to sell it to publishers.
One of the characters is a Choctaw Indian named Dean Goodnight. Dean works at the Oklahoma County Public Defender’s office, in downtown Oklahoma City. He’s not an attorney, but a mitigation investigator, responsible for uncovering evidence about his clients that could help them avoid the death penalty – and instead get sentenced to life in prison. So when he’s investigating someone’s life, Dean’s hoping to find horrible, awful things – sexual abuse, physical trauma, drug addiction, head injury. Things that could explain how a person becomes a killer. The turnover rate in this sort of job is predictably high.
To write Dean’s character, I did a lot of research into the Oklahoma criminal justice system, specifically into the death penalty. What was interesting to me was that, in nearly every book about the death penalty I read, Timothy McVeigh is used as justification for why we should preserve it. The Oklahoma City bombing was a horrible crime, planned and executed over many months, and McVeigh as a defendant was almost sociopathic in his affect, exhibiting a complete lack of remorse.
But for every Timothy McVeigh, there are hundreds of defendants – many of them innocent, we’re learning – caught up in what has become, increasingly, a political talking point rather than a serious means of deterring crime.
Oklahoma is front and center in this debate. Just last month, we found out that the State of Oklahoma misled the United States Supreme Court, in a filing about the humane procedures surrounding its administration of lethal injections. Governor Mary Fallin granted Richard Glossip a 37-day stay of execution, because the drug the state was using to execute Glossip was potassium acetate, rather than the potassium chloride listed on the state’s original filing with the Supreme Court.
In an article published last month in the Atlantic, journalist Garrett Epps writes:
When the state told the Supreme Court about its “humane” procedures, it didn’t even know what three drugs it had on hand. Shortly before Glossip’s scheduled execution, in fact, Fallin learned that an autopsy showed Oklahoma had already used the wrong drug to execute another condemned inmate, Charles Warner, in January. Warner was originally a petitioner in Glossip’s case. The Supreme Court denied him a stay, then accepted the case after Warner had been killed.
Justice Stephen Breyer, in a separate opinion for himself and Justice Ruth Bader Ginsburg, announced in Glossip that, in his view, the death penalty could no longer be administered fairly, and thus was unconstitutional.
Administered fairly is the key phrase here. The justice system has established certain rules for capital murder trials, and for the procedures surrounding the death penalty.
Since the mid 2000s, when the only U.S. company producing sodium thiopental went out of business, the specific mixture of execution drugs has changed several times. I’m sure most of you remember last year’s horrifying execution of Clayton Lockett. In that execution, which made headlines across the world, Oklahoma was relying on a new drug, midazolam, for use in its cocktail.
In fact, for many years, to make up for the shortfall in sodium thiopental – which has no legitimate use in the U.S., except for in executions – prisons were illegally importing that drug into the United States, from European drug companies not approved by the F.D.A. In March of 2011, the D.E.A. raided prisons in Georgia, Tennessee, Kentucky, South Carolina, and Alabama, confiscating their stock of the drug. Led by Oklahoma, many states were by then replacing their sodium thiopental stocks with another drug, pentobarbital.
Now, pentobarbital is used extensively within the United States for veterinary euthanasia and possibly for other legitimate purposes. But prisons have had problems getting the drug, because many companies that make and distribute it have required prisons and others in the supply chain to sign affidavits swearing that it won’t be used for executions. Oklahoma responded by passing a law, in 2011, making all information about the death penalty a state secret. Then it turned to compounding pharmacies in an attempt to keep itself flush with pentobarbital.
Now, compounding pharmacies aren’t regulated by FDA. The source of their drugs is often unknown. Their ingredients could come from countries like India or China, places that have lower quality control standards than the United States. Their injectable drugs might not be sterile. The drugs might not even be effective.
That being said, none of the Lockett and Warner drugs came from compounding pharmacies.
By the time Clayton Lockett was being executed, Oklahoma had turned to a drug called midazolam. No court challenge was made to midazolam before Lockett’s execution, because there was little evidence that it wouldn’t work. Under restrictive U.S. Supreme Court decisions, a defendant challenging a method of execution must prove that it is substantially likely to inflict unnecessary pain. A mere possibility of pain isn’t enough. The only state that had used a midazolam procedure like Oklahoma’s was Florida, and its midazolam executions before Lockett’s seemed to have been successful. Until Lockett’s execution failed, the evidence needed to challenge midazolam didn’t exist.
So Locket’s lawyers instead challenged Oklahoma’s secrecy law. Legal challenges to that law were already well under way, because it concealed the manufacturer and vendor of the drugs, and the names of the people involved in executing an inmate. A state judge ruled that the Oklahoma secrecy law was in fact unconstitutional, and the Oklahoma supreme court granted Lockett a stay of execution so that it could consider the merits of his argument.
But Governor Fallin stepped in, issuing an executive order stating that, in effect, her office did not recognize the authority of the state supreme court to grant that stay.
Clayton Lockett’s execution was scheduled for April 29, 2014. Again, it was the first time the state had tried midazolam in its cocktail. It took an hour for the paramedic, and then the attending doctor, to place an I.V. into Lockett. They stuck him more than a dozen times, and the I.V. they eventually used was placed in Lockett’s groin, in the soft tissues, missing his vein.
When the cocktail was finally administered, the results were horrifying. Lockett awoke from what everyone believed to be an unconscious state. He convulsed. He lifted his head and spoke. He tried to work himself free of the gurney. The scene was so disturbing that the paramedics considered canceling the execution and resuscitating Lockett. It took more than forty minutes for Clayton Lockett to die – moaning, straining against his restraints, trying to speak. His attorney described the scene as torture.
Now there is some debate about the reason for Lockett’s distress. His attorneys argue that midazolam played a part in it. Unlike thiopental, midazolam isn’t a pain reliever. If a person is sedated by midazolam and then subjected to enough pain, he will wake up, and feel it. Potassium chloride, the third drug given in Oklahoma’s procedure, inflicts intense pain. Another problem with midazolam is a ceiling effect. More midazolam does not necessarily mean more sedation.
Midazolam is taken up by tissues at about the same rate that is taken up in the blood stream. So injecting it into tissue is about as effective as injecting into a vein. This makes it doubtful that the misplaced IV was the reason for the Lockett execution’s failure. The problem is that midazolam, by itself, was never meant to maintain a deep anesthesia. In medicine, it is only used to start anesthesia, never to maintain it. Something like ether is always used to keep the patient unconscious while the heavy pain and cutting of an operation are going on.
There is currently a multicounty grand jury investigating the Charles Warner execution, where potassium acetate was used instead of potassium chloride. The grand jury has called Department of Corrections officials and members of the governor’s staff as witnesses. All of them have retained criminal lawyers. How the governor’s office may have been involved in Warner’s execution isn’t clear.
But last week, after appearing before the grand jury, the Oklahoma State Penitentiary warden abruptly retired. It was said to be unrelated to the executions, though few people believe that. What possible crime the grand jury is investigating, if any, is unknown. But, under English common law, which could potentially be applied in this case, if someone is executed in a manner other than proscribed in writing, that person can then be charged with murder.
The Attorney General’s office is guiding the grand jury investigation. It’s also representing corrections officials sued in the pending federal lawsuit challenging the execution procedures. The Attorney General lawyers have a conflict of interest, because they are investigating their own civil clients for criminal law violations. To address that conflict, the Attorney General lawyers agreed with the prisoners’ lawyers to shut down the civil lawsuit until the criminal investigation is over. In exchange, the Attorney General agreed to seek no more executions while the federal civil lawsuit is shut down. It could be quite a while before the state of Oklahoma resumes executions.
So why are we in this position? Why was everyone in such a rush to execute these two men?
The most likely reason is sad to consider: Politics.
The death penalty has become more effective as a political platform than as a means of deterring crime. It’s incredibly unpopular for a politician to take a stand against capital punishment. More voters than not like a candidate who appears “tough on crime.” And when our judges and lawmakers and our district attorneys and our sheriffs are all elected, the pressure to “talk tough” can lead to grandstanding about the death penalty, grandstanding that, in a non-election year, simply doesn’t happen. In 2014, Governor Fallin was running for re-election. And though the judges on the Oklahoma Court of Criminal Appeals and the Oklahoma Supreme Court are all appointed, they do appear on ballots, as retention candidates, meaning voters can remove them. And several of those judges were on the 2014 ballot.
The problems with the death penalty, though, don’t stop at mere politics. In his analysis of capital punishment, professor Austin Sarat writes, in his book When the State Kills:
Modern legality is founded on the belief that revenge must and can be repressed, that legal punishment can be founded on reason, that due process can discipline passion.
This idea of revenge, of retributive justice, has been institutionalized within the capital trial system. Take the victim impact statement, which occurs during the penalty phase of a trial, after the defendant has been found guilty of a capital crime. This is the part of the trial where a victim’s family is allowed to address the jury, the judge, and the defendant – to speak about the impact his crime has had upon their lives. The witness is allowed to say anything he wants. There are tears, there is shouting. Anger and despair and heartache. And understandably so. These people have suffered an incredible loss.
But these statements put the judge and jury in a pickle. Because by personalizing the crime, by introducing non-evidentiary statements and hyper-emotional testimony, the victim impact statement threatens to prejudice the court. The jury has to decide: is it with the victim’s family, or against it? And the victim impact statement is one of the last things everyone hears before the defendant’s sentence is determined.
The victim impact statement becomes an opportunity for vengeful victims to participate in an unfamiliar medium of discourse in which grief and rage are joined to rational arguments and complex rules of evidence.
Earlier, I talked about there being two sets of rules. There is a big basketball theme in my novel, and one of the recurring motifs is this idea that the rules for people in power are very different than for the rest of society.
In the mid 1990’s, when my story is set, Oklahoma County district attorneys were still allowed, during sentencing, to introduce any crimes a defendant was simply alleged to have perpetrated. Even if those crimes were still being adjudicated. Even if the defendant might eventually be found innocent.
And yet prosecutorial misconduct – which is rampant – is rarely introduced as evidence in a trial. Prosecutors are mostly a self-policing group. And in the 1990’s, under district attorney Bob Macy, the misconduct was systemic.
Now I grew up watching Bob Macy on television. The white cowboy hat and the bolo tie. The slow southern drawl. He was a bigger-than-life character, and I admired him along with everyone else. At one time he’d sent more men to death row than any other prosecutor in the country. A big part of the Macy mythology was his image as the righteous, God-fearing, western cowboy. Hanging in his living room was a picture of downtown Oklahoma City, with the words “Macy’s Town” inscribed under the skyline. Macy would get his man, come hell or high water. He’d shoot a defendant on sight if the system would let him.
But strange things start happening when we believe that ours is the only point of view that matters.
In 1994, if you’ll remember, OJ Simpson was arrested for murdering his wife, Nicole Simpson, and her boyfriend. During that trial, Los Angeles detective Mark Fuhrman perjured himself, denying his repeated use of a racial slur – the n-word. Tapes later proved Fuhrman was lying.
Fuhrman was absolutely convinced that Simpson was guilty, and apparently felt that his deception was justified. After the trial, the detective capitalized on his newfound fame by writing true crime stories. One of his books, ironically enough, is called Death and Justice: An Expose of Oklahoma’s Death Row Machine. In it, Fuhrman, a tough-talking L.A. cop who is a staunch proponent of the death penalty, visits Oklahoma City to investigate a series of high-profile death-row exonerations.
What he found here convinced Fuhrman that capital punishment, as justice Stephen Breyer said in his recent dissent, could never be fairly administered. Fuhrman’s experiences in Oklahoma actually changed his mind about the death penalty.
In Oklahoma County, mistrials occurred when jury members were allowed to see defendants restrained by handcuffs. Photo lineups contained suspects with and without distinguishing characteristics like facial hair, something that can unconsciously bias a witness. Confessions did not match the gathered evidence. When prosecutors found exculpatory evidence, they failed to hand it over to the defense, which, by law, they are required to do. Evidence would go missing for weeks at a time, and then suddenly reappear. Macy would comment on facts never introduced as evidence. In one case, Macy convicted two men, separately, of killing a convenience store clerk, arguing, in both trials, that the defendant was responsible. Here’s the thing, though. Only one shot was fired in that convenience store.
Many convictions in the mid 90’s were based upon hair and fiber evidence analyzed by the Oklahoma City crime lab. A chemist named Joyce Gilchrist did most of that work. Gilchrist, who was a black woman, earned the nickname “Black Magic” – because her analysis and testimony usually went beyond the capabilities of modern forensics.
I’m quoting from a 2001 New York Times article now:
A now-scrutinized Oklahoma City police chemist whose testimony helped convict a man later executed for murder cited scientific evidence that does not exist, a Police Department memorandum says.
The memorandum, written by another chemist in the Oklahoma City police laboratory and obtained by The Associated Press, refers to the case of Malcolm Rent Johnson, who was convicted in 1982 of rape and murder and was executed on Jan. 6, 2000.
At trial, the testifying chemist, Joyce Gilchrist, said six samples taken from the victim’s bedroom showed semen consistent with Mr. Johnson’s blood type. But a re-examination of those slides this July 30 showed that ”spermatozoa is not present,” says the memorandum, dated July 31, addressed to the city attorney’s office and signed by Ms. Gilchrist’s colleague Laura Schile.
Fuhrman’s book recounts story after story about Gilchrist’s flawed testimony. The crime lab was a kind of macho “boy’s club,” everyone looked up to the homicide and sex crimes detectives, and Gilchrist seemed desperate to be accepted into the group.
One of the detectives, Fuhrman writes, said that some of the results Gilchrist brought back to him and other detectives were “just unbelievable.” Bemo claims that he didn’t believe Gilchrist was doing proper lab work, because her results were “too good.” But it didn’t stop him and his partner Bill Cook from using Gilchrist’s lab results in many of their cases.
Using microscopic hair comparisons, Gilchrist had initially excluded one killer. Nearly three years later, after a confidential informant named the man as a suspect, Gilchrist got a second batch of hair samples from him, which she matched to those found at the crime scene. This indicates that she was not performing her microscopic hair comparisons in an objective fashion, but instead trying to give the detectives the results that they felt they needed in order to solve the case and get a conviction.
Gilchrist would say that her hair and fiber analysis had positively identified a single suspect as being the murderer. But the state of the art simply wasn’t capable of this level of certainty. In a study done by the Law Enforcement Assistance Administration, microscopic hair comparison was found to have a 67% error rate. Crime labs were wrong 4 out of 5 times, and often couldn’t even identify the species of the sample being examined.
Gilchrist was eventually condemned by the forensics community for offering her opinion on the guilt or innocence of particular defendants. Her lab didn’t have a formal peer review process, and she refused to allow her colleagues to check her work.
It got so bad that she came under scrutiny by at least six different agencies: the FBI, the state attorney general, the OSBI, the Oklahoma Indigent Defense System, the Oklahoma County D.A., and her own police department. The closed-door hearing was the longest in the state’s history, and in September of 2001 Gilchrist was fired for “laboratory mismanagement, criticism from court challenges and flawed casework analysis.” This was a tricky issue for the city, because too much information about the contents of its report could open it up to liability. So the report was sealed, and anyone who has read it is under a gag order not to disclose the contents.
So let’s get back to the idea of rules. There seems to be a double standard at work here.
- A defendant can’t break the law. But, prosecuting him, the state routinely does just that.
- A defendant isn’t allowed to kill. But the state is. The terminology is different, of course – this is a “lethal injection” and not a “home invasion.” There are “protocols” and not “murder weapons.” There are physicians on hand to oversee the process. But mistakes still happen. We all saw how well that oversight worked in Clayton Lockett’s case.
- Every juror sitting on a capital trial has been “death-qualified.” They have agreed that, if the evidence warrants it, they have no moral objections to delivering the ultimate sentence. The defendant is already fighting an uphill battle, before his trial has even started.
- Prosecutors highlight the horrifying nature of a defendant’s crime – introducing photos, eyewitness testimony, forensic evidence which implies pain and suffering. Video, if they have it. But a defendant can’t illustrate the horrifying nature of the death penalty, because executions in this country aren’t photographed or recorded. One of the last known photographs of an execution is from Florida justice Leander Shaw’s dissent about the constitutionality of electrocution as a means of execution. In that dissent, he published three photographs of convicted murderer Allen Lee Davis’s body, immediately after his execution. Davis has turned purple. His shirt is covered in blood. When the mask covering his face is lifted away for the photograph, his skin adheres to the leather, boiled and bubbled. It’s a gruesome sight. It turns your stomach.
And I haven’t even touched on the racial disparities seen in capital trial sentencing. In a staff report by the Subcommittee on Civil and Constitutional Rights, part of the one-hundred-third Congress’s Judiciary Committee, published in March of 1994, an analysis of capital trial sentencing between 1988 and 1994 showed that:
Racial minorities are being prosecuted under federal death penalty law far beyond their proportion in the general population or the population of criminal offenders. Analysis of prosecutions under the federal death penalty provisions of the Anti-Drug Abuse Act of 1988, reveals that 89% of the defendants selected for capital prosecution have been either African-American or Mexican-American. 89%. Moreover, the number of prosecutions under this Act has been increasing over the past two years with no decline in the racial disparities. All ten of the recently approved federal capital prosecutions have been against black defendants. This pattern of inequality adds to the mounting evidence that race continues to play an unacceptable part in the application of capital punishment in America today. It confirms Justice Blackmun’s recent conclusion that “the death penalty experiment has failed.”
Just before I left Dallas to drive up here for this talk, someone forwarded me a New York Times article about the illegal use of race to exclude jurors from Georgia murder trials. This went on for years, because of something called the “peremptory challenge” – attorneys can exclude a juror for any reason at all. They don’t have to explain it. And notes, uncovered during an investigation of Georgia’s jury selection practices, pointed to racial bias as the reason for many of their peremptory challenges. My point is that you don’t have to look far to find evidence of illegal racial bias in the application of the death penalty.
Now I’m well aware that a majority of people sentenced to death in this country are, in fact, guilty of the crimes they’ve been accused of. But this doesn’t mean they deserve to die. In a perfect world – a world where everyone always told the truth, evidence was never manufactured, testimony was always accurate, and you could be one hundred percent sure that a convicted defendant was, in fact, guilty … maybe you could justify the death penalty. But that world just doesn’t exist.
People are people, and people aren’t perfect. A trial is a competition. Both sides desperately want to win. And this means that, sometimes, the rules are going to get broken.
As I was writing THE MIDNIGHT MAN, a friend asked me how I’d feel about the death penalty if someone killed one of my family members. I answered that I’d not only want to see the killer executed, I’d want to be the one who pulled the trigger. But this urge to murder would be an emotional response, guided by rage and despair. And I want to live in a society where reason, and not emotion, determines our fate.
Around that same time, I was talking with a friend who had been abused as a child. When he learned that his abuser had recently died, his response was immediate: “Good,” he said. There was no closure. His anger, shame, and sadness would never go away, even though the perpetrator was now dead.
Now, as a writer, my job is to somehow take all of this research and turn it into a compelling story. Readers don’t want to listen to a lecture. So I had to draw some sort of emotional conclusion from all of this data. And what it came down to, for me, was forgiveness. I grew up attending the First Presbyterian Church, in Perry, Oklahoma. The pastor talked about forgiveness a lot. And I always imagined that it was a kind of sacrifice, forgiveness, for the person doling it out. That the person forgiven was somehow being offered a gift of some kind. But my research into the death penalty – and my friend’s shell-shocked response to learning his abuser was dead – changed my mind completely.
The Dalai Lama says that “You will not be punished for your anger … but BY your anger.” Forgiveness, I realized, while writing my novel, has very little to do with the perpetrator of a crime. It is much more like a survival mechanism for the victim. It allows us to move on. To live. To avoid that fog of anger, hate, guilt, shame, fear, depression – whatever it is that might rule your life after some horrible tragedy.
Austin Sarat, in “When The State Kills,” identified two approaches to justice: Retributive and Rehabilitative. This country has clung to a Retributive approach for decades. What might society look like if we, instead, looked to the root causes of these crimes, and tried addressing them before they occurred? What if we could truly rehabilitate some of these killers, rather than disposing of them?
This is a big question. And I don’t have the answer. Again, I’m just a writer. But everyone in this room will probably, at some point, have some connection to, or direct involvement with, maybe even some influence over, the workings of the criminal justice system. And if you’re able to look past the emotional politics of the capital punishment debate, and use reason as your guide, maybe you can find an answer for all of us.
Image of the lethal injection bed used in the “Old Main,” the retired Southern part of the Penitentiary of New Mexico, by Ken Piorkowski.