PEOPLE HAVE ASKED ME WHY, as the Harris County district attorney, I was known for seeking the death penalty in a high percentage of capital murder cases. I can’t account for what other district attorneys do, but I can tell you my thought process. First, I don’t say what the rules are; the Texas Legislature does. The Legislature did not say that the death penalty could be a choice only in the most horrible sort of murders. It said a jury could assess death if a person killed two or more people, a child under six or an on-duty fireman or policeman, or committed murder during the course of a burglary, robbery, arson, or sexual assault—and if the jurors believe that person is a continuing threat. So if the prosecutor says, “I am not going to let death be an option to the jury unless the case is really horrible,” he is preventing the jury from making that decision.
A good example of this is the case of Andrea Yates—the mother who killed her five children. Some critics say she shouldn’t be executed. They say she’s crazy, or if she’s not, then she ought to be locked up for life. And yet there are a lot of people who believe she ought to die for what she did and the way she did it. If the prosecutor decides not to seek the death penalty, that eliminates the public’s having any input at all. Remember that no prosecutor assesses the death penalty. Juries do.
Still, we are very careful about when we argue for the death penalty. Prosecutors shouldn’t seek it, in my view, unless in their own heart and mind they believe that a reasonable jury would give it. You have got to show that this person is uniquely a death penalty candidate. You have to go into his background, his previous criminal history, and his future dangerousness. Let’s suppose you have a guy who has never been convicted of anything. He goes and kills somebody in the course of a robbery. Is that a case where you would seek death? No, because the evidence is more than likely going to be insufficient for a death sentence to be affirmed on appeal. That enters into every decision about whether or not to seek death.
Many victims’ families want an eye for an eye. If someone murders somebody close to you, more than likely you’ll want to kill him. Victims feel very, very strongly. And it’s not sufficient for us to sit down with them and explain things. You have to say, “You and I might think this guy ought to die for what he did, but here is what the law says. If the accused has nothing more than a probation for smoking dope, that is not going to get him the death penalty. I don’t care that he wiped out your son who was working part-time on a Saturday night at the convenience store. It’s just not going to be enough.”
One of the more controversial death penalty cases from Harris County in recent years was that of Karla Faye Tucker. A lot of people said that because of her repentance in prison she should not die. But the idea of someone, post-trial, seeing the Lord or repenting or becoming a better person is not an issue for the prosecution. It’s damn sure not an issue for the jury. It’s an issue for the governor and for the Board of Pardons and Parole. There was a movement to give her a stay, mandating life instead of death. I didn’t agree with that. I thought she should die. I personally talked to the representative of the governor’s office, and I said, “I am not at all beyond making public the photographs of the murder she committed.” I don’t care whether she has found the Lord fourteen times over. She has to atone for what she did.
When people ask me about the role of compassion in my job, I tell them that juries are the ones who get to make the call about compassion. But every once in a while, I have to make the call afterward. There were very few times I ever recommended commutation for Harris County death penalty cases. In one of those cases, a man had been sentenced to death, and the case had been affirmed by the Texas Court of Criminal Appeals. At the beginning of the trial, the judge had ordered the prosecution to turn over its files to the defense for the sentencing hearing, and the prosecutor said, “Your Honor, we have turned over everything they’re entitled to.”
That was true. However, one of the things they hadn’t turned over and hadn’t told the lawyers about was a tape recording in which the defendant admitted in great detail the goriness of his killing. Because the recording was not made by law enforcement, the prosecutor did not have to turn it over during discovery. That tape was used as evidence in the trial before the jury, and the jury gave him death. Then the courts litigated the question of whether the prosecutor should have turned the tape over. The Court of Criminal Appeals said it wasn’t necessary and upheld the verdict.
Now, based on my own values, I would have told the defense about the tape. I don’t know why the prosecutor, who worked in our office, didn’t. The lawyers were coming on pretty strong about the innocence of their client and were being deceived by their client. If they had known about the tape, they would have directed their efforts toward some other kind of defense. So telling them was the fair thing to do. The lawyers came to me and said, “Johnny, if we had known and listened to that tape, we’d have pleaded the guy for life, and we think the prosecutor would have taken it rather than go on with the trial.” That may or may not have been true. There was no way for me