A Fairy Tale?
Once upon a time there was an Olympic athlete with a gold medal, who had gone on to become an eminent professional and respected family man. Unfortunately, he had a secret life. He had a mistress, and one night he killed her. The police soon arrested him, and he was put on trial for murder. His Olympic medal, professional degrees, and community stature counted for nothing. He was found guilty and put to death.
Whoa, many people would say, I'm glad you began that story with "Once upon a time," because it's a fairy tale. Someone of that stature could find a phalanx of lawyers to defeat the charges or bargain them down to something lesser. Even if he were by some wild chance found guilty and sentenced to death, the appeals would drag on interminably. The press and his supporters would wage a relentless battle to raise doubt about his guilt. Eventually some judge would be persuaded, or the governor would cave in to popular sentiment, and he would have the sentence commuted. In a few years, when the hubbub had died down, he would go free. Because prominent people just aren't put to death.
Reality
Except the incident really happened, exactly as described, in 1929. The Olympian was James Howard Snook, who won a gold medal for pistol marksmanship in the 1920 Games in Antwerp, Belgium. Admittedly the Olympics in 1920 didn't command the celebrity they do now, and pistol marksmanship is not on the same plane as the high jump or decathlon. Nevertheless, Snook was an acclaimed Olympian. By 1929, he had a wife and child, and was head of the Department of Veterinary Medicine at Ohio State University. He had also been carrying on an affair with a young medical student, Theora Hix, for three years. On June 13, 1929, during an argument, Snook bludgeoned her and cut her throat. Her body was found the next day. Snook was soon identified as the prime suspect, put on trial in July and found guilty on August 14. After exhausting his appeals all the way to the U.S. Supreme Court, he was executed in the electric chair on February 28, 1930. (Snook is the only Olympic medalist ever executed for a crime.)
Despite Snook's intelligence, education and professional experience, this was a singularly inept crime, worthy of inclusion in any "dumbest criminals" compilation. Snook killed his lover and left her body in a place he was known to visit (a firing range where he practiced his marksmanship). He managed to get Hix' blood on his clothes and in his car, and he kept the murder weapons. And although he had medical training, plus access to a laboratory and a wide array of chemicals, he was unable to clean the weapons, a knife and ball peen hammer, well enough to eliminate all traces of blood, even by the standards of 1929 forensics.
The trial was sensational, complete with drugs and kinky sex (by 1929 standards). Snook supplied the drugs, to which he had ready access, and which were much less regulated than they are now, and Hix supplied the kinky. (One can just picture Snook's poor wife hearing the details in court and wishing she could get the electric chair right then and there.) During the trial, Snook claimed that Hix had threatened to harm his family. Prosecutors argued premeditation, pointing to the unlikely opportune availability of a ball peen hammer in Snook's car. The jury, judge, and apellate courts agreed.
I first learned of this case in 1994, after the arrest of O. J. Simpson, when it appeared in a background story on other sports figures who had been charged with crimes. (I regretted not saving the article at the time, although when I finally decided to write this piece, I located the details on line in seconds. Such is the growth of electronic technology.) As the O. J. drama unfolded (complete with jugglers and dancing bears in the streets, as one Doonesbury strip put it) my mind kept returning to that long ago murder. How was it that in 1930, in a time many would consider a judicial Dark Age, an Olympic gold medal and a prominent professional position were unable to save a murderer from the electric chair? On the other hand, in 1994, after decades of legislation and court decisions aimed at reducing inequality in the judicial system, wealth, prominence, and the money to hire a team of lawyers were instrumental in getting a murderer acquitted.
Two conclusions immediately leap out in comparing the Snook and O. J. cases:
- All the procedural complexities added to the legal system since 1930 have made the system less fair and equal, not more. The inequality is not so much due to unfairness directed at less wealthy defendants, as it is the creation of innumerable loopholes that wealthy defendants can exploit.
- The increased injustice came about not in spite of the court reforms of recent decades, but precisely because of them. The most nearly infallible recipe for injustice is complexity. The more complex the appeals process becomes, the more costly it becomes to exploit judicial safeguards. Wealthy defendants can afford the lawyers. Public defenders and attorneys working pro bono for less affluent clients are more heavily burdened. And of course, if you are too affluent to qualify for public assistance and too poor to hire attorneys out of petty cash, you will escape punishment only in the sense of not going to prison. Financially you will be as bad off as anyone behind bars.
Most commentators on this case point out that the case would be handled differently now, as indeed it would. Snook was interrogated for nineteen hours straight, without a lawyer, and was slapped a couple of times by the interrogating detective. And the appeals process was very abbreviated by today’s standards. On the other hand, what substantive issues would a lengthier appeals process have addressed? Snook was clearly not of diminished capacity and his guilt was beyond doubt. The only issue of substance was whether the killing was premeditated. Snook claimed that Hix had become increasingly jealous of his family obligations and had threatened him and his family. Nevertheless, by his own account, Snook was not in imminent danger at the time he struck Hix, and the fact that he had a weapon close at hand tipped the balance against him.
If the police had merely been intent on closing the books quickly, they had a much easier target to go after. Hix had another lover while she was having her affair with Snook, and he was the first suspect picked up. He was able to convince the police that he and Hix had ended their relationship a year earlier and that he was engaged to someone else. So the police passed up the chance to wrap up the case easily, released a suspect of low socioeconomic class, presumably someone without the means to mount a vigorous defense, and arrested the respected professional Snook instead. The commonplace wisdom that socioeconomic status determines a defendant’s fate is turned completely on its head in this case.
From Hix’ murder to Snook’s execution was 260 days. Three years later, Giuseppe Zangara would shoot Mayor Anton Cermak of Chicago in a botched attempt to assassinate Franklin D. Roosevelt. Zangara defiantly boasted of the shooting in court and was sentenced to 80 years in prison. However, when Cermak later died, Zangara was charged with murder. Again he defiantly pled guilty. Only 33 days elapsed between the shooting and Zangara’s execution and only 14 days since the murder conviction. Leon Czolgosz, who assassinated President William McKinley in 1901, was executed 53 days after the shooting. In 1921, psychologist Lloyd Vernon Briggs examined the case and concluded that Czolgosz had been mentally ill and possibly not legally responsible. Charles J. Guiteau, assassin of President James Garfield in 1881, was executed just 363 days after the shooting. This trial was one of the first high profile trials where the insanity defense was invoked. Garfield did not die for eleven weeks after the shooting, a victim of medical malpractice as much as the bullet, and Guiteau was convicted on January 25, 1882, 156 days before being executed.
There is a good chance that all three political assassins would have been found insane if tried today. Guiteau in particular was delusional about his popularity after the assassination, and believed the public regarded him as a hero. Certainly all would have had appeals filed on their behalf. But even counting the issue of insanity, all of the three assassination cases were straightforward enough to be resolved in a single round of appeals, lasting at most a year. Certainly none were complex enough to require millions of dollars to decide.
In contrast, it took 12 years to decide the case of Charles Rodman Campbell. In 1974, Campbell raped a woman and served six years for the crime. In 1982, while on work release, he killed the woman, her daughter, and a neighbor in retaliation for testifying against him. He was finally executed in 1994, only after the State of Washington had appealed to the Supreme Court in an effort to get a final decision on the constitutionality of the case. It took twelve years to resolve a case where there was never the slightest doubt of the defendant's guilt.
How did we get from the simplicity of 1929 to the complexity of today? The 1931-1937 Scottsboro case was a contributing factor. Nine black youths were accused of rape on flimsy grounds and sentenced to death after cursory assembly-line trials with only the most meager representation. Two separate hearings by the Supreme Court laid down important due process safeguards, yet it seems likely that justice would have been far better served if the Court had simply overturned the verdicts on the grounds of insufficient, flimsy, and contradictory evidence, not to mention blatant judicial prejudice. Yet the Federal courts played procedural patty-cake with Alabama's courts, effectively declaring themselves impotent against Jim Crow sham trials.
Another significant episode was Caryl Chessman's unsuccessful twelve year (1948-1960) battle to avoid execution for rape and kidnapping in California. This case became a rallying point for opponents of capital punishment, who were further swayed by Chessman's articulate writings. It laid down the precedent later observed in the cases of Eldridge Cleaver, Edgar Smith and Jack Henry Abbott that articulate writing somehow atones for heinous crimes. It also created a precedent for defense attorneys filing interminable piecemeal appeals in an effort to wear down the opposition or slip an overturned verdict through the cracks.
Due process is result, not procedure. A trial that results in punishment of an innocent person is not a fair trial, despite Justice Scalia's scandalous (and impeachable) recent opinion that innocence is not a Constitutional bar to imprisonment. However, a trial that results in the release of a guilty person is likewise not a fair trial. If the Scottsboro Trials were a miscarriage of justice, so were the acquittal of O.J. Simpson and the overturn of the convictions of the Chicago Seven.
Courts are understandably reluctant to second guess lower courts' readings of the facts. There are myriad important things in court that never make it into the transcript, such as the fact that a defendant has an arrogant smirk or a prosecution witness stammers and sweats when cross examined. And yet innocent defendants remain jailed while courts bat procedural matters around instead of declaring that a prosecutor's case is simply worthless on its face, or declaring that an appeal is pointless because the appellant is patently guilty. The waste of resources is huge. It typically costs millions of dollars to deal with a capital case, even if the defendant is palpably guilty. These are resources of money and docket time that could be spent on reviewing the cases of genuinely innocent victims of miscarriages of justice.
It seems to me that we need at least three Constitutional amendments:
- No person shall be punished for a crime except on conclusive evidence of guilt.
- Appeals (criminal and civil) may only be based on a reasonable showing of factual error in the original verdict.
- No procedural issue shall ever take precedence over issues of fact.
What about all the procedural safeguards created by the courts? There is still plenty of room for those; indeed, these changes will strengthen them. A prosecutor who faces having his conviction dismissed rather than merely being overturned will be a lot more careful about observing procedural safeguards that really count. If his case is dismissed with prejudice because he withheld exculpatory evidence, that will hurt a lot more than the slap on the wrist of having a verdict returned for retrial. Even better would simply be tossing the prosecutor in jail for contempt of court for wasting judicial resources. If Southern courts had routinely had guilty verdicts against black defendants thrown out as worthless because they were unsupported by the facts, or because the judge was blatantly prejudiced, we might not have had to wait so long for civil rights progress.
