Miles's blog

Eva Wilson’s daughter is a senior in high school, and Nathan Dunlap is still on death row. Eva was assigned to Dunlap’s case while pregnant. Her boss Bob Gallagher said Dunlap would be executed around the time the unborn child would graduate from high school. It looks like Gallagher guessed wrong.

Dunlap’s lawyers were once again in front of the Tenth Circuit yesterday, raising yet another ground that appears from the outside looking in to be spurious. But when it comes to death penalty litigation all bets are off. There is no question that Dunlap murdered four people in cold blood at a Chuck E. Cheese’s pizza in 1993. He has appealed his case over and over; filed hundreds of motions, and claimed every lawyer who ever even talked to him was incompetent. But, despite the jury’s verdict, and repeated appellate defeats Dunlap lives.

I have spoken to Eva many times about this case. Every time you can see the pain in her face, and hear the angst in her voice. She still feels the pain of those victims’ families. Eva is a realist. She knows there is a chance she will see her daughter graduate from college before Dunlap is executed, if he ever is. That is the nature of death penalty prosecution. Dunlap is one of the few inmates still on death row after several killers had their sentences changed to life in prison based upon an unconstitutional statutory scheme.

No prosecutor relishes the execution of another human being, even the scum for whom juries impose the death penalty. But prosecutors do derive satisfaction that justice, as set out in the law and impeccably followed by the courts, is meted out. Society has allowed the use of capital punishment, and for those whom it is warranted, tears need not be shed when it is carried out. These are the most ruthless, most dangerous, most anti-social of criminals. While they live society is not safe. Even life sentences offer no assurance their sociopathic behavior will end. Murders are committed in prison on both inmates and staff.

Still, a death penalty verdict is rare, and an execution even rarer; in Colorado virtually nonexistent. The United States Supreme Court stayed the execution of a Texas killer yesterday. At first blush the case appears to cry out “injustice.” Apparently, an expert witness testified that black men have a greater risk of reoffending than others. (The defendant is African-American). Risk of prior criminality is a death penalty criteria in Texas. Oh my God. How was that kind of testimony allowed?

However, upon reading more about it, the issue is kind of murky. First of all, this was a defense witness. He actually testified that the defendant did not present a risk of future dangerousness. Only on cross-examination did he concede that his own research showed that statistically men commit more crimes than women and being African-American increases the risk of future dangerousness. The newspaper article does not say whether defense counsel objected or asked for a pre-trial ruling. However, what is clear is that the defense must have known what their witness would say. This was impeachment. The prosecution did not seek to have the death penalty imposed merely because of the defendant’s race, and did not so argue to the jury. What the prosecution was trying to do was show that the witness had just testified to an opinion contrary to his own research. That puts a different spin on this.

I am not suggesting that I think the line of questioning was acceptable, or even that the research was valid. What I do want to say is that when it comes to death penalty litigation things are not often as clear as presented. After all, lower courts have allowed this execution to go forward. Are all of them racist? I doubt it.

I will leave my personal opinion about the death penalty for another day. I just wanted to make clear that there is nothing immoral about imposing a penalty allowed by law. And death penalty issues are rarely as straightforward as the media might lead you to believe.