Neil Macdonald: The death penalty debate America isn't having

Texas's death row archive is a troubling document, not the least for what it doesn't say about those who may be wrongfully convicted, Neil Macdonald writes.

Several years ago, I reported from Texas on the impending execution of a man named Derrick Frazier.

There was nothing much, really, to distinguish him from the 478 other criminals Texas has injected with poison since the U.S. Supreme Court reinstated capital punishment in 1982.

Like many of them, he was non-white, poor and vicious.

He and his partner charmed their way into Betsy Nutt's home, then forced her to her knees. His partner shot her dead, as her young son, Cody, knelt beside her, watching. Frazier's partner then killed the boy, too.

The two master criminals were found later in possession of Nutt's truck. Frazier confessed; then, much too late, changed his story.

I spent some time with Jerry Nutt before Frazier's execution. We visited the graves of his wife and son, and we had supper together.

Nutt was eager to see Frazier die and he got his wish on Aug. 31, 2006, at 6:18 p.m., a few weeks after we spoke.

'Let 'er rip, warden'

For some reason, I went looking this week for the details of Frazier's execution, spurred by the lingering memory not just of Jerry Nutt, but the recent boasts of Texas Gov. Rick Perry about his state's nation-leading execution rate.

Celebrity human rights campaigner Bianca Jagger is pressuring the British government to help save the life of a British woman, Linda Carty, who is on death row in Texas. (Reuters)
  The information wasn't difficult to find. Texas not only keeps a public record of all the people executed since 1982, it also posts their last words on the internet — save for profanities, which are censored. 

That's Texas: executions are considered normal, as is keeping a macabre record of last words. Cursing, though, is out of bounds.

The website is a bizarre, riveting archive of the things men, and a few women, choose to utter with their last breaths.

The latest, a murderer named Rodrigo Hernandez, had this to say before the chemicals stopped his lungs and heart on Jan. 26: "I'm gonna go to sleep. See you later. This stuff stings, man almighty."

Hernandez also proclaimed his love of God, as did the vast majority of those who faced the needle before him. Men sentenced to death tend to find Jesus, or Allah, or some other deity, and, in their final fear, they shout their belief.

Quite a few apologize.

"You did not deserve this," Angel Resendiz told the family of his victim in June 2006. "I deserve what I am getting."

Many of them, perhaps in some final attempt to assert control over something, long after all control has been taken away from them, save their very last words to instruct the man presiding over their death.

"Let 'er rip, warden."

"You may proceed, warden."

"All right, warden," said Melvin White in 2005, "let's give them what they want."


Many, of course, weep during these final moments: "Here I am a big strong youngster, crying like a baby," said 31-year-old Michael Hall last February. "I am sorry for everything."

Some choose to describe aloud the first bitter taste of the poison as it spreads into their bloodstreams. Others spit curses.

Some go out singing. Quite a few denounce the medical reality of what's about to happen: "They are fixing to pump my veins with a lethal drug the American Veterinary Association won't even allow to be used on dogs," Reginald Blanton declared, correctly, in 2009.

Vincent Gutierrez, at the last moment in March 2007, asked where his stunt double was.

Then there was the hair-raising statement of Billy Vickers. In 2004, strapped on the gurney, he confessed to several murders for which he had not been convicted, and calmly informed the warden that a few of them had been blamed unjustly on other men.

And that by far is the most troubling topic in Texas's death row archive: the possibility of wrongful conviction.

Didn't do it

Every so often, a condemned man insists right until the last moment that he is not guilty.

Derrick Frazier, with Jerry Nutt watching, did just that.

"I am being punished for a crime I did not commit," he told the collected witnesses.

From what I've been able to gather about Frazier, he was lying. He told police things only someone in the room when the murders took place could have known.

But click through all those dying declarations of innocence, and something inevitable dawns: By the law of averages alone, at least some of these guys were probably telling the truth.

Add to that the fact that, according to the Death Penalty Information Centre, Texas has released 12 men from death row since 1973, usually after prisoners' advocates discovered new evidence of their innocence, much of it resulting from DNA testing.

To be clear: Texas intended to put 12 innocent men to death. Nationwide, over the same period, the number is 140.

No official second thoughts

Knowing that, these utterances from the archive are all the more disturbing.

Roy Pippin in March 2007: "You will answer to your Maker when God has found out that you executed an innocent man. May God have mercy on you … Go ahead, warden, murder me."

Protestors show their support for death row inmate Troy Davis in September 2011, just days before he was executed by Georgia for the 1989 murder of a police office. The case attracted international attention after seven of nine trial witnesses recanted their testimony against him.

Cary Kerr, on May 3 of this year, loudly told the state of Texas he was innocent, then said: "Check that DNA ... Here we go. Lord Jesus, Jesus."

William Chappell on Nov 20 2002, looking at the mother of the victim: "You know damn well I did not molest that kid of yours. You are murdering me and I feel sorry for you ..."

Or, Steven Woods in September 2011: "I never killed anybody, ever … This is wrong. This whole thing is wrong … Well, warden, … go ahead and do it. Pull the trigger."

I don't know much about those men or their specific cases, but I do know I wouldn't have wanted to be any of those wardens.

I covered an execution in 1985 of an elderly woman in North Carolina, and I had the chance to ask the warden why he himself didn't push the button, as the law entitled him to do (he had delegated the job to someone else).

He proclaimed complete confidence in the courts, but couldn't really answer the question. When I pressed him, he ended the interview.

This is not a subject the American justice system likes to discuss, either.

Exonerating the living is one thing, and it is done regularly here, if often reluctantly.

But exonerating the dead would amount to a state confession of murder and, in all likelihood, end capital punishment in America.

Such a thing has never happened here.

Once a prisoner has been executed, state and federal prosecutors steadfastly oppose reopening cases to conduct post-mortem DNA checks or consider any new evidence.

The reasoning is obvious: The dead cannot be brought back, and all such efforts might accomplish is to bring the system of justice into severe disrepute.

The U.S. is just about the only democracy left in the death-penalty club. There were 43 executions here in 2011, down from a peak of 98 in 1999.

America's enthusiasm for executions is exceeded only by places like China, Iran and North Korea.

Those countries would just write off the odd execution of an innocent as the cost of doing business.

But when such a case finally surfaces here, as it almost certainly will, this deeply religious country might want to pray with the same fervor that so many of the condemned do as the poison starts to flow into their veins.