The Criminal Justice lottery

Casey Anthony won it, becoming a TV star into the bargain.

A few years ago I wrote this rumination about it:

Last week Kenneth Lee Boyd won the lottery of his life and secured himself a footnote in U.S. criminal justice history. At around 2:00 AM on Friday, December 2nd, Boyd became the 1000th prisoner executed since the U.S. Supreme Court allowed states to reinstate the death penalty in 1977. The high court had declared most state death-penalty laws unconstitutional. Many of those states moved quickly to amend, and in ’77 the Supremes gave a green light to Utah to stand a murderer named Gary Gilmore in front of a firing squad… yeh, no kidding, a firing squad.

Naturally, this landmark number --- 1000 --- set off a flurry of debate about the death penalty. At one end of the public-opinion spectrum are people who think capital punishment should be eliminated… period. They point out that the top capital-punishment countries are the US, China, South Vietnam and Iran. Do we really want to keep that kind of company, they inquire?

On the opposite end are pro-death penalty people, who probably agree with John McAdams, a professor of political science at Marquette University, who opines, "If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call."

Somewhere in between are those who fret that we may wind up executing innocent people. In fact legal history is loaded with legendary cases that leave us pondering this possibility. Among the most famous is the Lindbergh kidnapping, which occurred in Hopewell, New Jersey, way back in 1932. The two-year-old son of national hero Charles Lindbergh was lifted from his second-floor nursery. The Lindberghs shelled out a $50,000 ransom, only to learn later that the infant had been killed and buried in a shallow grave.

Another two years passed before a German immigrant named Bruno Richard Hauptmann spent some of the ransom money and was arrested. The trial in Flemington (NJ) was a media circus. Hauptmann, convicted and sentenced to die, went to the electric chair in Trenton proclaiming his innocence. His widow, who lived into her nineties, continued to campaign for his exoneration. Today, many historians believe the Hauptmanns were telling the truth. Some even say that Lindbergh accidentally killed his own child in a misconceived practical joke that ran amok. As recently as June 22, 2003, the New York Times reported, under the headline “This Case Never Closes,” the new discovery of a kidnapping note by Archivist Mark Falzini of the New Jersey State Police Museum. The note, scrawled on a wooden table leg with screw holes matching the pattern of punches in the original ransom letters, reads in German, “I was one of the kidnappers of the Lindbergh baby and not Bruno Richard Hauptmann.”

Equally intriguing is the case of Dr. Sam Sheppard, a successful young doctor living in suburban Cleveland, who was accused in the summer of 1954 of brutally murdering his wife. Despite his claim of having fought with a “bushy haired man” who had invaded the Sheppard home, Dr. Sam was convicted and served 10 years in prison before F. Lee Bailey won a Supreme Court ruling that yet another media circus had poisoned the jury. Bailey, destined to become one of the great defense lawyers of the 20th century, won an acquittal in a subsequent re-trial. Sheppard’s tragedy was far from over, however, as a malpractice suit drove him from his medical practice. He became a professional wrestler and an alcoholic, dying in 1970 of liver failure. By then he was up to two fifths of liquor a day. In the 35 years since then, the mystery of who really killed Marilyn Sheppard has spawned wild tales of homosexuality, bisexuality, and conspiracy, all spinning around the enigmatic osteopath-turned-wrestler. The most famous form of the legend is pure fiction: “The Fugitive” --- first a TV series, more recently a Harrison Ford film --- has the good doctor trying to chase down a one-armed man.

We’ll never know for sure whether Bruno Hauptmann, killed by the state, and Sam Sheppard, killed by the bottle, were innocent or guilty men. That one was executed and the other acquitted hasn’t helped those who yearn for absolute truth. The odds are 50-50 that an innocent man (Hauptmann) was fried and a guilty man (Sheppard) walked away.

That’s all a part of the capital punishment lottery.