Vertebrate Judge Stands Up to John Ashcroft in Houston

The best way to avoid having the U.S. Supreme Court smack down Texas death penalty cases is for trial judges to enforce fairness at the beginning of the process, and for defense attorneys to do their job.

During the sentencing phase of the federal prosecution for 19 immigrant deaths -- they died horribly in May of exposure, abandoned in an 18-wheeler in the Texas heat -- a district judge was willing to hear an appeal to fairness, even in the face of horrifically "bad facts," the Houston Chronicle reports. When former Texas state Senator and US Congressman Craig Washington demonstrated to the court that, of 68 prosecutions for deaths involving immigrant smuggling, US Attorneys only pushed for the death penalty with his client, who is black, U.S. District Judge Vanessa Gilmore demanded that federal prosecutors explain their decision and whether the defendant's race was involved.

Prosecutors basically told Gilmore to buzz off, and simply did not comply with her order to reveal their reasoning. They also refused to provide the judge with that refusal in writing, even when she threatened to hold Assistant U.S. Attorney Tony Roberts in contempt.

Judge Gilmore reconsidered her contempt threat, and she declined to take the death penalty off the table -- after all, this was a heinous crime. Instead she decided simply to tell the jury that prosecutors ignored her order to explain whether their decision to seek the death penalty was based on race. Experts say that will likely carry significant weight with the jury.

This case exemplifies a lot of the reasons why I personally oppose the death penalty. I don't suffer under the illusion that all human life is sacred, and I don't disagree that what happened to these immigrants was unfathomably horrible and worthy of the gravest punishment. But I question whether we can know for sure that the government implements the death penalty equitably. If we can't, then whatever good it may engender in terms of public safety can not outweigh the damage to our constitutional government from its discriminatory application. In this case, Judge Gilmore clearly shares that concern. We'll find out soon whether the jury is willing to kill the defendant regardless.

UPDATE: I should note that Howard Bashman's How Appealing moves into the daily checks zone for Grits today. Searching around for more information about this case, I found that not only had Bashman pointed to this article yesterday, but he had an update that a three-judge panel from the Fifth Circuit stayed the trial in order to hear the US Attorney's appeal. Plus he'd linked yesterday to the New York Times magazine article discussed in the previous post. And, timely enough given the Fifth Circuit's possible intervention in Judge Gilmore's decision, he points to an editorial from the St. Petersburg Times declaring, "For the sake of justice, the Supreme Court will have to keep a careful eye on the 5th Circuit." From now on I'm checking with Howard first.