John Hill for the State of Texas

(8)Defending the Death Penalty

(8) Defending the Death Penalty Some Texas attorneys general regarded a U.S. Supreme Court argument as an assignment best filled by subordinates or special counsel. My reaction was the opposite. The prospect of arguing a case before the high court stimulated my competitive instincts as much as the Super Bowl fires the ambitions of a National Football League coach or player. I viewed the challenge of matching wits with—and probing the intellects of—nine of our nation’s preeminent legal thinkers for thirty tension-filled minutes as a most treasured opportunity. I was fortunate to have five such opportunities. They included two disputes with other states—Louisiana, over the state boundary extension into the oil-rich Gulf of Mexico, and California, over the right to tax the estate of Howard Hughes—and three others: a complex natural gas federal regulatory issue, a challenge to our ballot access requirements for minority parties, and the death penalty case.1 Although all the cases were important and a privilege to present, the death penalty case posed the most drama and sense of urgency. It was the most significant oral advocacy experience of my life. The defendant in this case was Jerry Lane Jurek.2 At stake was not only his life but also the fate of our state’s new death penalty statute as well as the fate of death penalty laws in thirty-four other states and the lives of 527 persons sentenced to death in all thirty-five states that had reinstituted the death penalty.3 The Jurek case was among five the court set for a two-day consolidated hearing with the ultimate purpose of deciding whether to forever outlaw the death penalty in the United States. The hearings on March 30–31, 1976, occurred at a pivotal time in our nation’s uneasy history of capital punishment. Numerous previous court challenges had culminated in death penalty opponents scoring a farreaching victory in 1972 that unexpectedly wiped all state laws from the (166) Chapter 8 books. As a result, when the Supreme Court justices gathered in 1976, no executions had occurred anywhere in the country since Luis Monge entered Colorado’s gas chamber on June 2, 1967. In Texas, the last capital punishment had occurred on July 30, 1964, when Joseph Johnson, a black parolee, was electrocuted for murdering a Chinese grocer during a robbery in Houston. The opposition forces gained their historic victory in 1972 when the Supreme Court, after consolidating cases from several states, including Texas, to provide a broad spectrum of death penalty statutes for review, held that existing laws were so arbitrarily applied that they violated the prohibition against “cruel and unusual punishment” in the Eighth Amendment to the U.S. Constitution. The decision resulted in about six hundred death row inmates’ sentences being commuted to life in prison, including forty-seven in Texas.4 Texas and other states whose statutes had been struck down immediately initiated new death penalty laws to accommodate the 1972 ruling . Approval of the revisions by the high court would represent a major setback for opponents of the death penalty, while freeing the backlog of death row cases would launch a resurgence of executions across the nation. Disapproval would again commute hundreds of death sentences to life in prison and likely forever remove any options for states to enact constitutionally permitted death penalty laws. To these already weighty ramifications was added the presence of the nation’s leading advocate for death penalty opponents, Anthony G. Amsterdam, a law professor at Stanford University who was acting as the primary spokesman for the petitioners. Amsterdam, forty-one, was a brilliant lawyer with impressive credentials. After graduating with top honors from the University of Pennsylvania law school, he clerked in 1960 for Justice Felix Frankfurter, whose own opposition to the death penalty was announced in a dissenting opinion as early as 1948.5 In private practice, Amsterdam quickly plunged into death penalty cases at a time when Frankfurter’s successor, Arthur Goldberg, a Kennedy appointee, was privately pressing the justices to outlaw the death penalty. Goldberg spurred capital punishment opponents to intensify their efforts with an unexpected dissenting opinion in 1963 wherein he urged his colleagues to determine whether the death penalty for rape was unconstitutional, even though the issue was not raised by the defendant’s own attorney. Justices William Douglas and William Brennan joined the dissent, offering abolitionists a three-vote head start in their quest for five votes against...