BILL MOYERS: Public opinion against capital punishment has grown, perhaps reflecting the Supreme Court’s own shifting and evolving attitudes toward state killing. In 1972, the Justices ruled that the death penalty was carried out in too arbitrary a manner and the court imposed a moratorium. Four years later the practice was allowed to resume, and since then more than 1,300 men and women have been executed.

Over time the Justices have more narrowly defined the circumstances under which the death penalty may still apply, but you never know which way The Court might in deciding next who lives and who dies.

That's one of the fascinating insights in this new book, Murder at the Supreme Court-- which combines elements of a true crime suspense thriller with courtroom drama and the backroom debates of nine human beings about to give "thumbs up" or "thumbs down" to another human being.

The authors, Martin Clancy and Tim O’Brien are old hands at journalism, both for ABC News.

O’Brien, trained as a lawyer, has been the network’s longtime law correspondent; Clancy, the winner of many awards for his investigations as both a producer and writer. He is also an old friend and colleague going back to my first days in the field more than four decades ago.

It's been years since we worked together, so it's good to see you again, Martin.

MARTIN CLANCY: Thank you very much.

BILL MOYERS: And to welcome Tim O'Brien.

TIM O’BRIEN: Thank you.

BILL MOYERS: I learned a lot from your book, including how our colonial fathers kept the executioners busy. I mean, the first execution on what is now American soil, 1608, Captain George Kendall put to death on spying for Spain. One Daniel Frank, hanged 14 years later in Jamestown for stealing a calf. And the first murderer put to death was troublemaker on the Mayflower by the name of John Billington. We were a bloody people even then.

MARTIN CLANCY: Well, partially out of necessity. There weren't any jails in colonial America, so what do you do with somebody who steals a calf? You either fine him, or you flog him, or you dispatch him.

BILL MOYERS: Some were even carried out, you write, by being broken on the wheel.

MARTIN CLANCY: They would literally strap a guy on a great, big wheel from his four appendages and roll the wheel until he was dead.

BILL MOYERS: And gibbeting?

MARTIN CLANCY: They cut, they literally cut him up in pieces. I mean, it was awful stuff.

BILL MOYERS: But hanging became the preferred method, didn't it?


BILL MOYERS: And a public spectacle?

MARTIN CLANCY: It became a public spectacle until the public spectacle became so embarrassing, the authorities would bring it inside.

TIM O’BRIEN: We have a culture in this country, the Wild West, and it manifests itself, I think, to this day. There is sort of a mentality in pockets of our country. There's, we don't care if it's unpleasant.

BILL MOYERS: I can't get William Kemmler out of my mind after reading this book and I'd never heard of him.

MARTIN CLANCY: William Kemmler was an experiment. William Kemmler had the misfortune to be the first person sentenced to the electric chair in the United States. The deciding on electricity as a form of as a form of execution was an evolving kind of grisly process in New York State. It began with an electrical engineer. And he figured that that would be a good way and a humane way to execute. And they tried it out on dogs and cats in Buffalo. They used to drown dogs and cats in Buffalo and they thought it would be an improvement to electrocute them. They did, it was kind of awful, but they perfected a process that the New York State legislature approved and Kemmler was the first victim.

BILL MOYERS: And you have in here the “New York Times” headline from that experience. "Far worse than hanging," the New York Times says, "Kemmler's death proves an awful spectacle. The electric current had to be turned on twice before the deed was fully accomplished." MARTIN CLANCY: There were eight minutes of what one person described as living hell or it may be dying hell in that room with smoke and sparks and a foul odor. It took William Kemmler a while to die and it could not have been anywhere near painless.

TIM O’BRIEN: He was essentially burned at the stake.

MARTIN CLANCY: Exactly right. He was finally pronounced dead but people, witnesses left the chamber vomiting. One of the coroners who was present said he'd never seen a spectacle so awful.

BILL MOYERS: What drew you, as journalists, to murder at the Supreme Court?

TIM O’BRIEN: I've been covering the Supreme Court, as you know, many years. I've found so behind so many of these very important cases were great interesting stories with very important legal questions, philosophical questions. To us, it seemed like a no-brainer this is something we should write about.

MARTIN CLANCY: Example, the Supreme Court decided in 1946 that it wasn't cruel and unusual punishment to sit someone down in an electric chair twice. You look back at that decision and you trace it back and it's, the story is amazing. It's the story of a 17-year-old black man named Willie Francis in Louisiana which had a traveling electric chair.

They used to travel the chair around the state, display it on the county courthouse steps in fact, we talked to a fellow who in sixth grade was taken on a field trip that day to the Saint Martinsville Courthouse to look at the electric chair on the on the courthouse steps. They then moved the chair inside, hooked up a generator from the truck, and sat Willie Francis, who had shot a pharmacist in a robbery, sat him down to electrocute him, and the machinery didn't work. Smoke, flames, sparks, but Willie wasn't really hurt. They finally unhooked the chair…

BILL MOYERS: He wasn't hurt?

MARTIN CLANCY: Wasn't hurt in any major way, a few minor burns. They sent him back to his cell. This became a major Supreme Court case. Would it be cruel and unusual punishment to sit him on the chair again? The Court ruled that it wasn't. But Felix Frankfurter, who had voted for the execution because he felt he had no choice constitutionally, behind the backs of his fellow justices, went to a friend in the Louisiana Bar and said, "Fight this locally. This would be an embarrassment if it happened and I'd feel really ashamed if it happened."

TIM O’BRIEN: It says something, also, about the Court, how sometimes they will vote one way when their personal feelings go another way. Sometimes Supreme Court justices, more than anybody else in public life, have to hold their nose when they do their job. They have to be faithful to the law. And you'll see justices saying, "I personally oppose the death penalty" they'll confide that in friends, maybe write about it after they leave the Court, "but we have to uphold it because we feel the state has the right to do it, even though we disagree with it."

BILL MOYERS: You begin with a decision the court made on the 9th of March, 1969, a seminal case involving a condemned convict from Alabama named William Maxwell. The justices voted eight to one to spare his life, declared the verdict unconstitutional and then changed their mind. How did that happen?

MARTIN CLANCY: It was an internal matter. The justices were grappling with several issues and came at it from a bunch of different directions. But eight of them thought it was unconstitutional, the Alabama statute was unconstitutional for different reasons. That decision evaporated overnight literally when Justice Harlan wrote to the chief justice the next day saying, "I'm not so sure any more. I think we ought to reconsider this." Then the court composition changed. Justice Fortas left the court. Earl Warren retired and the case had to be reargued.

BILL MOYERS: Why did you start with that one? Was it because you wanted to show the anguish that judges can go through in trying to reach these decisions?

MARTIN CLANCY: We started with it because it provided a window to the court that was unique. We know very little about what happens in the Supreme Court conference room. We know more about what happens in the White House situation room than we do about the Supreme Court conference room. But because of some notes from the justices we had kind of a play by play of what happened in that conference room on that day.

BILL MOYERS: You have a photograph in your book of Justice Harlan's, a note he wrote the next day, as you say, to Chief Justice Earl Warren, saying, "I'm not at rest with my yesterday's vote." He was troubled overnight.

MARTIN CLANCY: Yes he was. These justices are tortured by these decisions--

TIM O’BRIEN: Ten of the 15 cases we focus on divided the court five to four. Having decided you’re going to have capital punishment, they're now finding the most difficult questions are, "Who gets executed?" And what we, in the Maxwell case, we saw the early division on the Court and the sharp divisions on the Court about capital punishment. And they resonate throughout all the jurisprudence.

BILL MOYERS: What became clear to me in reading this is that the justices suffer doubts and fight prejudices about the death penalty, just like everyone else.

TIM O’BRIEN: Yeah, it's true. In fact, you have three good actually, you have five justices who sat together at one time, all of whom have concluded the death penalty should be abolished. Unfortunately for opponents of capital punishment, it was never in the case or at the same time.

You had Brennan and Marshall opposed it in all cases. Lewis Powell supported capital punishment throughout his tenure on the Court. Only after he left the Court did he say, "I actually think I made a mistake. It doesn't work. Justice John Paul Stevens, in his last few days on the Court, was saying, "We looked to capital punishment to serve society's interest and deterrence and retribution. It really doesn't either."

BILL MOYERS: But did you find any justices who were vehemently for the death penalty, consistently?

TIM O’BRIEN: The most articulate proponent would be Justice Antonin Scalia, who not only favors it as a matter of policy, although he doesn't talk much about that. He's very adamant that there's nothing, the Constitution clearly authorizes it and nothing has happened since to suggest it should be impermissible.

Justice Scalia is committed to a view of the Constitution that it means what it says, and that it cannot change absent of constitutional amendment. So, what is cruel and unusual punishment? He says if it wasn't cruel or unusual in 1791, when the Bill of Rights was ratified, than it can't be cruel and unusual today.

"Now, I'd, so, even if it's unusual today," I asked him, "if it rarely happens today, it still wouldn't qualify as cruel and unusual?" "No." So, some of the torture that you referred to if it happened at the time the Constitution was ratified, it would be allowed today.

BILL MOYERS: Is there a conspicuous thread that runs through these 15 cases? Did you choose them at random, or did you choose them because they added up to something you--

MARTIN CLANCY: We chose those that seemed to have the most impact on our society in combination with the fact…

TIM O’BRIEN: The stories.

MARTIN CLANCY: What we'd call the back story in our line of work. And the more we delved into some of these big decisions, the more really, entranced we became as reporters.

MARTIN CLANCY: Well, this was just go going back to plain, old, honest, shoe-leather reporting. I mean, finding the 80-some odd year sheriff who had been retired for years down in Florida who could tell me about a murder 35 years ago and he remembered the color of the sky. He remembered the names of the witnesses. He remembered what they said. I mean, he almost wrote the piece for me.

BILL MOYERS: But it does seem to me that you reveal an evolving thread of what we would call decency over the years as the Courts weigh, different Supreme Courts weighed these cases. Is that right? Did they?

TIM O’BRIEN: I think that is correct. They've been trying to make it more fair, more rational since 1972. In 1972, the Supreme Court threw out capital punishment as it was being implemented then, finding in the words of one justice that it was being implemented in an arbitrary and capricious way. So, they tried to make it more predictable, more rational. Juries must have guided discretion. They must be certain specified aggravating circumstances. Doesn't apply to just any murder. And then the Court subsequently ruled there ought to also be an inquiry for mitigating circumstances facts that might help this condemned inmate. The question is, has it worked? They keep trying to make it more fair, more rational, but you still find that with 12,000 homicides in the United States, you get 40 death sentences. How do you figure that?

I mean, was we've described it, when people weigh capital punishment, they tend to look at the crime and the criminal and they say, "This person may be deserving, based on those considerations, of the death penalty. Not everybody goes along with that, but many people do. But what if the system were to determine whether you will be executed, you pick a card. You pick the wrong card, you will die? Nobody would allow that. But in effect, if you look at the numbers, that's pretty much what we have.

MARTIN CLANCY: It's not rational. I mean, Warden Clinton Duffy, who put 90 people to death in San Quentin said, "I never executed a rich man." Bottom line is if you can afford a decent defense, you probably will not die in an execution chamber.

BILL MOYERS: What did you come to see as to the role of race in the decisions by the Court?

TIM O’BRIEN: The race of the victim is more important than the race of the defendant. If the victim is white and the perpetrator is black, you're ten or 11 times more likely to get a death sentence than if it's the other way around.

BILL MOYERS: How much did the primal sense of retribution play out in the cases, you know, eye for an eye, how did that play out in the cases you report?

TIM O’BRIEN: We found that retribution is now the primary motive behind capital punishment. It's no longer deterrence the evidence is really out on deterrence. People have arguments both ways. If those who favor it, sometimes they use the word "justice." Sometimes they use the word "revenge," "retribution."

In our view, it all means the same thing. We do have a chapter in the book about retribution being a legitimate purpose of the law. Does it satisfy the desire for retribution to execute somebody? The question is one; life in prison without parole is also retribution. And you're looking for justice sometimes but along with justice loved ones are looking for closure. You look at these appeals; we have people on death row for 25 years. There's no closure there. A life sentence might provide closure.

BILL MOYERS: What did you learn about murder, the act itself?

MARTIN CLANCY: That it's brutal. I mean, the cases that got to the US Supreme Court, the cases we looked at, are not your garden variety domestic homicides. They're not your 7-11 robberies. These, in most cases, are just brutal crimes by depraved or awful people.

TIM O’BRIEN: I've spoken to quite a few. And I find that they make a sympathetic argument. They said, "I made a mistake." Many of them have found Jesus and they make a very good, "Look, I know I did wrong." And some even say, "I'm ready to die for what I've done." You don't know whether to believe them or not. But sometimes good people do bad things.

MARTIN CLANCY: In many cases, I'm thinking I can't reconcile the person before me with what I know about the crime. And I think that's true in life. I mean a lot of people don't reveal who they are on the surface.

BILL MOYERS: So, you can understand retribution as a motive for some victim's loved one wanting this person to be put to death?

MARTIN CLANCY: Absolutely. And I think most of America can. I mean, remember the Dukakis debate…

BILL MOYERS: Refresh me.

MARTIN CLANCY: In which he was asked, "If your wife was raped and murdered, you know, would you be willing to have a death sentence?"

BERNARD SHAW: Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?

GOV. MICHAEL DUKAKIS: No, I don't, Bernard, and I think you know that I've opposed the death penalty during all of my life.

TIM O’BRIEN: I think the proper answer would be, "If it were my wife and you were the defendant, would you want me on the jury?" The fact is you do have to divorce yourself. He would not be allowed to be on the jury. Yet, I do think juries in society must take retribution into consideration when assessing punishment.

BILL MOYERS: But take this a further step personally. If Mary D., your wife were the victim of a brutal murder like this, would you want retribution?

MARTIN CLANCY: Course I would.

TIM O’BRIEN: Would you want the death penalty?



MARTIN CLANCY: I mean, I would instinctively feel that way and want that. But I have, I would have a hard time. Because I don't think, I don't, I mean, there's an argument that the ex the death penalty would be fairer if we had more executions, if we have a more streamlined system, if we had a system. The fact of the matter is that I don't think we've developed a way to administer it fairly.

TIM O’BRIEN: I don't know what I would do for a loved one of mine who was killed. I don't even want to think about it. I mean, your heart goes out to these victims. Every one of them in the book, the victim was somebody anonymous who had done nothing wrong, so other than to be in the wrong place at the wrong time. And every one of the perpetrators was someone who really you might have expected this from. That figures into the equation.

BILL MOYERS: Public opinion has shifted in the last few decades. Support for the death penalty I read is at the lowest level in the last 40 years and only nine states performed executions last year and your home state of Maryland just became the first state below the Mason-Dixon line to ban it. What's going on?

TIM O’BRIEN: Historically we found that when you don't have it people seem to want it and when you do have it people don't want it. But you also have a very important Supreme Court decision from South Carolina where the court said juries must be told if there's an option of life without parole if that is in fact an option. So once juries learn that you can sentence this person to death or life without parole and never, he'll never get out they're less likely to embrace capital punishment.

BILL MOYERS: But do you think public opinion has been affected by the continuing demonstration that the innocent are often…

TIM O’BRIEN: It has to be. That has to be

BILL MOYERS: Wrongly convicted? Think that's getting through to…

TIM O’BRIEN: Yeah, the DNA evidence has shown so many people convicted of crimes including murder to have not been involved at all. And that's always been an issue, but it's a much more powerful issue now that we're finding out about all these mistakes.

MARTIN CLANCY: There have been more than 140 exonerations in the past 30 years. Maybe all of those 140 weren't innocent, it's possible I mean, the it's possible they were exonerated for legal reasons but we know from DNA that there were at least 18 people in recent years who were released from death row because DNA proved they didn't do it.

BILL MOYERS: They would have been wrongly killed?

MARTIN CLANCY: Exactly right.

BILL MOYERS: Did your own opinion about the death penalty change as a direct consequence of your investigations and reporting on this?

MARTIN CLANCY: I think it, no, I think it reinforced it reinforced my own reservations about it. As you look back you discover that the smartest men in America, the most decent people in this country for 200 years in our legislatures, in the Congress, in our courts both lower courts and the Supreme Court, the smartest, most decent people in America have tried to figure out a fair and equitable way to administer capital punishment. And as far as I'm concerned they've failed.

TIM O’BRIEN: It didn't change my mind either. I don't think the book is, well, certainly it's not designed to change minds as it is to inform the debate. And we take no position on the morality of capital punishment. But we do reach a conclusion that if you have money you're not going to be executed. If the person who's executed, who if the person who's killed is a white person and the defendant is a black person you're many times more likely to get a death sentence. These are factors that should not figure into capital punishment at all. If you don't have any money and even if you do have any money it's very difficult to get a good lawyer to represent you. All these things lead us to believe that as a practical matter it doesn't work.

BILL MOYERS: Murder at the Supreme Court: Lethal Crimes and Landmark Cases, Martin Clancy and Tim O'Brien thanks for being with me.

TIM O’BRIEN: Thank you.

MARTIN CLANCY: Thank you for having us.

Martin Clancy and Tim O’Brien on the Death Penalty’s Fatal Flaws

Right now, there are more than 3,100 inmates on death row, and more than 60% are members of racial or ethnic minorities. Over time, Supreme Court Justices have fine-tuned the circumstances under which the death penalty may still apply, but no set of laws or jurisprudence can undo wrongful executions — or, it seems, completely prevent them. According to journalists Martin Clancy and Tim O’Brien, authors of Murder at the Supreme Court, in recent years at least 18 inmates were released from death row because DNA evidence proved their innocence. These cases are among more than 140 death penalty exonerations over the last three decades.

Clancy and O’Brien join Bill to explore these fatal flaws in our criminal justice system, and to share the human stories behind the evolution of capital punishment in America.

“If you can afford a decent defense, you probably will not die in an execution chamber,” Clancy tells Bill. “As you look back you discover that the smartest men in America, the most decent people in this country for 200 years in our legislatures, in the Congress, in our courts both lower courts and the Supreme Court, have tried to figure out a fair and equitable way to administer capital punishment. And as far as I’m concerned they’ve failed.”

O’Brien points out, “if the victim is white and the perpetrator is black, you’re ten or 11 times more likely to get a death sentence.”

“These are factors that should not figure into capital punishment at all. If you don’t have any money, and even if you do have any money, it’s very difficult to get a good lawyer to represent you,” O’Brien continues. “All these things lead us to believe that as a practical matter it doesn’t work.”

Interview Producer: Candace White. Editor: Sikay Tang. Associate Producer: Julia Conley.

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