TRANSCRIPT OF REMARKS GIVEN BY DAVID HOOSE
AT EHRMANN AWARDS ON MAY 14, 2001
Good evening
ladies and gentlemen. It is a tremendous honor to be asked to speak
to this group which contains so many friends, colleagues and mentors
in this work that brings us together. I bring you news from the Westernmost
outposts. We recently had a death penalty trial in Springfield. Let
me repeat that. We recently had a death penalty trial in Springfield,
here in the Commonwealth of Massachusetts. Four of the twelve jurors
who heard the case voted to kill my client. Everyone in this room knows
that now, but I wonder how many people outside on Downtown Crossing
right now, who are philosophically with us in this struggle, know that?
Every time I talk to my good friend Owen Walker of the Federal Defenders
Office here, he comments on the fact that the trial of Kristen Gilbert
was the most important trial in the Commonwealth of Massachusetts in
the last fifty years but no one is aware of it.
I have to
confess, I was in tremendous denial that this could actually happen
here and I suspect a large number of those in this room were as well.
But this did not exactly come out of left field, did it? I’ve been
giving this a lot of thought lately. Like a lot of my generation, I
never thought about the death penalty in high school or in college.
On July 2, 1976, the United States Supreme Court effectively approved
resumption of the death penalty when it rendered its decision in Gregg
v. Georgia. I did not notice. I got married the next day.
In August
of 1976 I began law school. Discussion of the death penalty began in
earnest when Gary Gilmore volunteered to be its first victim in January
of 1977.
On May 13,
1979 I graduated law school. Twelve days later, John Spenkelink became
the first non-volunteer to be executed in the “modern” death
penalty era.
In 1979 I
moved to Massachusetts and in 1980 I began to work as a public defender
in Springfield. This must have caused me to think about the issue because
I was there for the great referendum of 1982. It ironically brings back
many fond memories. So many of you in this room I met for the first
time in that campaign. In that watershed year it seemed that the issues
had finally been defined for me if not for all of the country:
Did the
death penalty deter?
Was it cost effective?
Could innocent people be executed?
What did our religious traditions say about it?
Was it racially discriminatory?
In January
of 1984 I went into private practice and shortly thereafter I was appointed
to represent Andy Daunais on a charge of murder. Andy was a homeless
young man of nineteen years that I continue to be in contact with today.
He was charged at a time the Supreme Judicial Court had the Colon-Cruz
case under advisement. I will never forget the feeling that I had when
then District Attorney Matty Ryan requested a continuance because he
wanted to seek the death penalty against Andy. I’ll never forget
the chill that went through me in thinking how utterly unprepared I
was, both legally and emotionally, for such an eventuality.
In 1984 I
also took my first death penalty case in Georgia.
In 1986,
my former partner Art Serota and I attended a conference on the death
penalty in Albany, New York. Seems to me that some guy named Bedau was
speaking. I recall leaving that conference with renewed energy and commitment
to this issue and soon thereafter I began attending meetings of this
organization. As most of you know I later served as president for four
years.
I recall
how in my early years, we were like campers huddled around a campfire
at Horace’s office or the Old South Church, blowing on the embers
of this organization to keep it alive for a time when we would really
need it. Although we talked a lot about the death penalty and its moral
implications, an actual death trial seemed very far away. It was something
other folks did a long way away from here.
Later when
we had the first public hearings that were seriously contested in many
years, we brought in people from all over the country to bear witness
against the death penalty. But still an actual death trial seemed very
far away.
In 1997, I took my second death case from the State of Georgia.
In 1997,
the death penalty made its way into a non-death penalty state in New
England when Chris William Dean was charged with capital murder in the
federal district of Vermont.
In 1998,
I was appointed to represent Kristen Gilbert.
Why do I
tell you this tale of my own personal entanglement with this issue?
Because I
can’t help but wonder if everyone else is like me. Despite the
obvious warnings, and my own greater than average involvement in the
issue, it never really dawned on me that it would actually arrive here
in Massachusetts. I’m afraid that our string of victories had left
me overly confident that we would defeat the death penalty before it
ever arrived here.
So, when
I began reading in my local paper about an investigation at the Veterans
Administration Medical Center, in my hometown, it never occurred to
me that it could be a federal capital case, nor did it occur to me that
I might be involved until I received a call from David Bruck asking
me if I would accept the case. Never in a million years had it occurred
to me that I would try a capital case, not only in Massachusetts, but
one from my hometown of Northampton, perhaps the most anti-death penalty
town in all of America.
Once Kristen
was charged, I figured that Washington would authorize it as a capital
prosecution for all the wrong reasons. I still recall the look on Judge
Ponsor’s face when I told him this during a lobby conference in
May of 1999. But even as I expressed this point of view, I kept thinking
that it would later be dropped. Before jury selection—after the
toxicology evidence was gone—during deliberations.
My confession
continues. So deep was my denial that this could never happen here,
that it persisted even as it was happening. I would awake every morning,
even during the penalty phase itself, confident that the today would
be the day that the Government would drop its request for death. Not
until I was in the courtroom and the Government put on its next witness
would I be slapped back into the reality that this was actually happening.
One of the
reasons for this is because it is difficult to believe that people you
know and have worked with for years, even if they are federal prosecutors,
are actually going to participate in a process to kill the person sitting
next to you. If I, with my background and the way my life has been intertwined
with this issue was in such denial, what about the rest of us? I would
bet that there are many who are philosophically in our camp who do not
even know of the brush with death that Kristen Gilbert had in Springfield.
So, my first
objective here tonight is to state the obvious. The death penalty is
here. We have chased it away for now, but it will be back. It will be
back in spite of the continuing efforts of this organization of which
I am so proud. It will be back in spite of the wonderful work done by
Bill Delahunt and other members of Congress and Senators Feingold and
Leahy, to forge an innocence protection act. It will be back in spite
of the troubling revelations about convictions of the innocent that
have been reported so well by Peter Neufield, Barry Scheck and the Innocence
Project, which builds, of course, on the seminal work of our own Hugo
Bedau.
What is it
that makes this thing so pernicious? Why do we have to keep beating
it back?
When I look
back to the questions that I referenced earlier, that were the cornerstones
of debate in the eighties and nineties, I realize that we have won them
all. No one really debates these issues any more. The debate has devolved
to the moral core. Our opponents for the most part seek to justify the
death penalty solely on the ground that it is the only proper expression
of outrage commensurate with the crime of murder. We should be very
comfortable to find ourselves there. As my friend and mentor David Bruck
once said in urging friends to get involved with this issue: “There
will never be an issue where it so clear that you are fundamentally
and morally on the right side.”
But that
still doesn’t explain why it is here. Many years ago, I attended
a training program in Atlanta at which the great anti-death penalty
guerilla lawyer, Millard Farmer, began his remarks by saying that the
death penalty has nothing to do with justice. It has to do with politics.
It persists because it remains the easiest way for politicians to say
that they are concerned about the feeling of vulnerability that we all
have in today’s world. And that brings me to the first thing that
I learned from my encounter with the beast. I learned about political
courage. I appreciate even more, people like Bill Delahunt, Ralph Martin,
John Kerry and Bill Nagle. I believe that whether elected or appointed,
our leaders are there to lead and not to follow.
The Gilbert
case is an example of what happens when we elect or appoint officials
who follow instead of lead. Don Stern, I am told, is personally opposed
to the death penalty. Yet he made a recommendation that Kristen Gilbert
be executed if found guilty. He did not have to do so, but he did, because
he is a good soldier I suppose. His opinion surely carried great weight
with Janet Reno, another person who is personally opposed but who is
also a good soldier. Mr. Stern ultimately asked two Assistant United
States Attorneys to carry out his efforts to obtain a death sentence.
One, I was told, was deeply troubled by the death penalty and secretly
hoped that it would not be imposed, and the other told me that she would
never participate in such a proceeding. Yet there she was. No one had
to do this. We who are lawyers, know the breadth and extent of prosecutorial
discretion. Just take a look at Robert Morgenthau in Manhattan.
Everyone
involved was opposed, yet it happened. It’s a lesson as to what
happens when we do not have the courage of our convictions to stand
up and say that this is wrong. Some may say that I overstate my case
when I say this, but the Nazis overran Europe in this manner. I wonder
how many Nazi soldiers did not approve of what was being done, but were
just doing their jobs?
That leads
me to the next thing I learned. I learned a lot about the process of
killing. Killing does not come naturally to human beings. We have to
convince ourselves that the person that we have determined deserves
death, has done something so bad that she is not even a human being.
I saw this first hand in the Gilbert case. At our first meeting with
the Assistant United States Attorneys, I saw that they had already done
this. When I pointed out that my client had organized a sunshine club
at her job, organized collections for the needy at Christmas, and organized
a memorial service for a colleague who died of cancer, I was told that
this was precisely what made her so bad. For their own psyches they
could not allow themselves to think for even a moment that there might
be a spark of humanity in this woman.
Thus began
the process of dehumanization. It was no different than what we did
a generation ago in Vietnam. We killed gooks or Charly Cong, not people.
It’s no different than what we did to enslave an entire race of
people. We convinced ourselves that they were something less than human
beings. We devised a whole vocabulary to call the African American man
anything but a human being.
Of course
the culmination of this process was watching a very skilled prosecutor
with an Ivy League education, descend to the depths of a backwoods cracker
lawyer with a law degree off the back of a matchbook. Mr. Welch’s
first words at the penalty phase were, “She is not human.”
“She is an empty chasm of darkness.” “Behind that mask
of a human face there is not a flicker of humanity.” All to justify
what he was doing—asking his fellow citizens to help him expunge
a life. It’s the power of conviction. Once they had convinced themselves,
there was nothing that could be done—no room to see the slightest
possibility of error.
From this
trial I also affirmed for myself that there is humanity in everyone.
Each of us is indeed comprised of more than his/her worst act, no matter
how extreme that might have been. It is interesting to me that the only
piece of hate mail that I received was when I was quoted in the media
as saying that the defense team had grown quite fond of Kristen.
Most of all,
regardless of whether Kristen Gilbert or Tim McVeigh or anyone else
deserves to die, it is more clear to me than ever that we do not deserve
to kill them.
Finally,
I learned the importance of having support from you and others like
you. I can’t imagine how much more immensely difficult it must
be to try these cases where there is no support. The many, many calls,
cards and emails of support from all of you have meant so much to me
and made the process of decompressing from all of this bearable. I pray
that you all remain strong and continue in this struggle. If nothing
else good comes from Kristen’s ordeal, I hope that it strengthens
our resolve to ring the alarm and work ever harder to prepare for the
next case and for the inevitable next effort to get a death penalty
into the Commonwealth.
Thank you
and good night.
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