Murder at the Supreme Court
California Lawyer

Murder at the Supreme Court

Lethal Crimes and Landmark Cases

September 2013

Murder at the Supreme Court:
Lethal Crimes and Landmark Cases
by Martin Clancy
and Tim O’Brien Random House, 375 pages, hardcover, $26

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In 1946 the State of Louisiana strapped Willie Francis into the electric chair known as "Gruesome Gertie." At age 17, he was about to face punishment for killing a pharmacist during a robbery. The warden flipped the switch and said, "Goodbye, Willie," but Francis went nowhere. The chair had malfunctioned and the teenager remained unharmed. As Francis was led back to his cell, the chair's technician called out, "I missed you this time, but I'll get you next week if I have to use a rock."

Whether it would violate Francis's constitutional rights to give Louisiana a second try (State ex rel. Francis v. Resweber (329 U.S. 459 (1947)) is one of 15 cases skillfully addressed in Murder at the Supreme Court. Martin Clancy, a journalist and television producer for ABC News, and Tim O'Brien, an ABC News legal journalist and lawyer, use each case to focus on a different legal issue related to capital punishment. These authors are storytellers, and each chapter tells both the story behind the capital crime and the story behind the law applied to the case (in that order).

Ten of these cases, including Francis's, were decided by a single vote (5-4). Justice Felix Frankfurter was so torn about the Francis case that he secretly implored a trusted roommate from Harvard Law School to help the young man avoid execution, writing, "This case has been so heavily on my conscience that I finally could not overcome the impulse to write to you." But Frankfurter's conscience would not lead him to help Francis with his vote. He sided with the majority, allowing Louisiana another attempt. On the second try, Gertie performed as expected.

As another example, readers may be familiar with the Court's decision in Gregg v. Georgia (428 U.S. 153 (1976)), reaffirming the constitutionality of the death penalty. Over the next 35 years, this case provided the green light for states with similar statutes to execute more than 1,300 inmates (and counting). However, Troy Gregg was not one of them. The night before his execution, he made a daring escape from prison with another inmate, speeding away in a getaway car dressed as a prison guard. But Gregg made a fatal mistake at a bar, insulting the girlfriend of a friend of his fellow escapee, Tim McCorquodale, who then stomped Gregg to death. McCorquodale was re-captured and executed in Georgia's electric chair under the statute upheld by the Court's decision in Gregg.

Murder at the Supreme Court devotes an entire closing chapter to "the view of the authors," ultimately concluding that the death penalty system is broken without casting judgment on the death penalty per se. On one hand, these stories highlight vicious crimes, which some, perhaps even the authors, see as deserving capital punishment. The book quotes at length from family members of victims, from wardens responsible for administering executions, and from prosecuting attorneys who firmly support the death penalty.

The book gives fair weight to then Solicitor General Robert Bork's retort that the "real complaint [of those opposing capital punishment] is not that anybody is freakishly convicted and executed but, rather, that some murderers are freakishly spared and given life imprisonment." But these stories defy easy conclusions.

Each chapter reveals another thorny issue of capital punishment inviting the reader to struggle with questions such as: Where should the line be drawn for issues like age and mental capacity? Should the getaway driver get a death sentence but not the triggerman? How poorly should counsel perform before we acknowledge that the defendant was denied a lawyer? Could the State forcibly medicate a prisoner just to render him competent for execution? What of deterrence? Is retribution justification enough?

These narratives, read collectively, show why the debate over capital punishment is often oversimplified by being about the punishment itself rather than the system that administers it. A similar focus on the administration of death, rather than the nature of the punishment, ultimately led to Justice Harry A. Blackmun's dissenting opinion in Callins v. Collins (510 U.S. 1141 (1994)), in which, after struggling with the issue on the Court for 20 years, he famously renounced capital punishment and declared in a lone dissenting opinion, "I no longer shall tinker with the machinery of death."

By revealing the stories behind these crimes and cases, Murder at the Supreme Court helps lay that machinery bare and invites readers to tinker for themselves. As the authors rightfully conclude, "this is not like exploring outer space or finding a cure for cancer; it is not an investigation of the unknown. The evidence is right there before us, much of it is in this book."

Michael Parente is a lawyer in the Capital Habeas Unit of the Federal Public Defender's office in Los Angeles. (

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