‘Let the Lord Sort Them: The Rise and Fall of the Death Penalty,’ by Maurice Chammah: An Excerpt
When Danalynn Recer tells the story of her life—or at least of her career, though she seldom makes much of a distinction—she begins with a phone call. At the time, she was an extremely busy twentysomething, working on both a law degree and a master’s in history at the University of Texas at Austin. Some lawyers called the history department and invited her to an office with an oddly vague name: the Texas Resource Center. They represented men on death row, and the name served to camouflage such unpopular work.
One of their clients was black and had been sentenced to death for shooting a white man, by an all-white jury, in a county where black men had once been victims of lynching. That last part would not have surprised Recer, since she was writing her master’s thesis on lynchings in Texas. (She was sometimes the only white student in African-American history classes, but she eventually realized that the study of lynching was really, as she later put it, the study of “what the hell is wrong with White people.”) The surprise was that these lawyers thought her research on the past might bolster their modern-day legal claims. She printed out some of her findings on zigzagging dot matrix pages and made her way to an old house downtown, not far from the capitol building.
It was a homey warren of little offices, with a big white dry-erase board displaying a calendar of upcoming execution dates. Everywhere you looked, banker’s boxes full of court records were stacked high, overflowing with trial transcripts, police reports, and other documents. Scrawled across the sides of the boxes were the names of death row prisoners. When one received an execution date, the center would try to find him a lawyer, but if they couldn’t, they would jump in themselves.
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Amid the boxes, young lawyers raced around, speed-reading transcripts, debating which legal claims to make, sending faxes, and fielding calls from colleagues conducting investigations around the state. The lawyers were interested in Recer’s research, but their conversation was cut short: There was a deadline in some other case and they needed to get a document to a FedEx office. Since she had nowhere to be, Recer offered to take it.
Many years later, Recer would pluck this story out of many others and hold it out as pivotal, explaining, “I still haven’t come back from that run to FedEx. I ran away with the circus.”
At the time, she had two clear professional paths: continue her master’s research in a Ph.D. program, or take the bar exam and practice law. It was a stark choice between analyzing the world and trying to change it directly. She had long displayed an impulse toward the latter. Her father, Paul Recer, was a journalist, and he had once covered a civil rights rally in Tulsa during which several African Americans tried to get into a cafeteria and white people tried to keep them out by pushing against the door to keep it shut. He had arrived early, managing to make his way into the cafeteria before the protest started and get material the other reporters couldn’t. When he later told the story, his daughter wasn’t impressed. “What the hell, Dad?” she said. “You’re just sitting there and writing? Why didn’t you help?”
She began making regular trips to the resource center to make copies of trial transcripts, thinking she could analyze the in her thesis. But she found herself addicted to the atmosphere, and was soon volunteering. Many nights, she would descend the staircases, peering into whichever offices had a light still on, and ask how she could help. The lawyers would ask her to pick up a pizza, or drive someone to the airport, or sort documents, or make copies. The office saw a constant churn of students, but the dedicated ones stuck out, and eventually Recer’s tasks grew more substantial.
One evening, she returned home from school to a voicemail. A center lawyer needed her to go to Houston to meet a witness. There was no time to spare—this concerned a pending execution date—and the lawyer had already bought her a plane ticket for 6:00 a.m. the next morning. She was proud to know he thought he could count on her, though she knew the fact that they were sending a student meant this effort was a long shot.
The prisoner facing execution was Eddie Ellis, who had been convicted in 1983 of strangling an elderly woman named Bertie Elizabeth Eakens and leaving her body in her bathtub. He’d been fired from his job as a maintenance worker at the apartment complex where Eakens lived. His fingerprints were on her door, and he’d been seen driving a car that resembled her yellow Cadillac. Recer was paired up with Joe Ward, an investigator originally from Idaho who was known at the center as Idaho Joe or sometimes just Idaho. When they arrived at the apartment complex, they saw gang graffiti on the walls of the buildings, and dozens of shell casings littered the ground. “Be aware of your surroundings,” Idaho told her. To his eye, she didn’t seem fazed.
They found the woman they were looking for, Esperiridiona Alonzo, known as Dora. She told them that her husband, Pablo “Lucky” Alonzo, an acquaintance of Ellis’s, had died a couple of years before. But for years before his death, she said, Lucky had threatened her with violence to keep her from telling anyone a secret—that he, not Eddie Ellis, had killed the old woman. “I feel sick about it,” she told them. “I remember when that woman was killed in her bathtub and how Lucky acted that day. . . . He looked scared and real nervous and upset. . . . He said something ugly had happened and that I would read about it in the newspaper. . . . He saw the article and got real scared and nervous again, and said, ‘I thought I told you I didn’t want to talk about it. Don’t be bothering me with this, bitch.’ . . . Then he said something like, ‘Besides, I told you Eddie was going to go down for it.’ . . . He was very angry and pushing me and shouting.”
Over the years, every time she heard about someone else being executed, Dora would fight with her husband over Ellis’s fate. Lucky had eventually grown ill, and shortly before he died in a hospital, he wrote her a letter apologizing and fully confessing to the crime. But, she told Recer, she didn’t know where she had put it.
Recer helped her search her home, then accompanied her to an old storage locker. They dug through a bag of mildewed papers from his hospital stay. Eventually, they found a crinkled, handwritten note in broken English:
Feb 20, 1990: Dora as time went by I didn’t have time to tell you but I have done a lots off thinks that you were against me I am sorry for all the thinks I done to you—I can’t express but we had good times and bad but most of the time bad. Here is sometime I have to say I killed the poor woman that Eddie blame for only God will fine a place for forgiveness I hope he well forgive me because I know you won’t.—Lucky
[ Return to the review of “Let the Lord Sort Them.” ]
The center enlisted a document examiner, who found that the handwriting matched other samples of Alonzo’s writing. The whole thing felt to Recer like a movie moment when, as she put it later, “Barbra Streisand starts singing and the gates of the jail open up and it’s blue skies forever.”
Lawyers at the center quickly wrote a new appeal, citing the letter “found only hours ago” by a “student from the University of Texas Law School.” They submitted it around four o’clock, roughly eight hours before Ellis would be strapped to the gurney. In the meantime, Recer remembered she knew someone who knew Governor Ann Richards, and she started working the phones.
The Harris County District Attorney’s office, which had prosecuted Ellis, stood by the conviction. A lawyer from the state attorney general’s office, which had opposed his appeal in federal court, was not convinced that Lucky had written the letter, and told a reporter that his widow was “borderline mentally retarded.” But for the moment, the question was not whether Ellis was innocent; it was whether he was entitled to a stay of execution, which would allow the courts to open the case back up.
The answer was no. In fact, it was worse than no.
At a last-minute hearing, federal judge David Hittner told the resource center lawyers they were developing a reputation for showing up with dramatic claims at the last minute. “It is not your role to sabotage the efficient administration of justice,” he said, admonishing the lawyers for submitting the petition by fax forty minutes late. (Page one, according to a lawyer’s account, had been on time; the problem was a slow fax machine.) The court above him, declining to stop Ellis’s execution, wrote that “federal courts do not retry facts already found by state courts” but added that “Ellis’s evidence of actual innocence is so riddled with holes that it will not hold water.” They simply didn’t believe Dora’s letter. And it wasn’t clear that the press did either. The first sentence of a Houston Chronicle article about the execution quoted a prosecutor’s description of Ellis as a “self-perpetuating crime machine.”
Ellis was executed that night. In his final statement, he called the men who’d sent him to death “sorry sons of bitches.” Recer was furious. The state’s arguments seemed disingenuous to her, and the judges seemed uninterested in the truth; it felt as if they were personally accusing her of having concocted a scheme, when in fact she’d seen Lucky’s confession herself.
A year later, the Supreme Court ruled against another Texas prisoner, saying his evidence of innocence wasn’t enough to stop his execution.
Recer’s wake-up moment came in the field; for many of her peers it came in the big house on San Antonio Street, opening up the banker’s boxes of trial transcripts, grabbing yet another Diet Coke or coffee, and reading. They were looking for problems that might be convincing on appeal. You didn’t really need to be a lawyer to do this, because the problems were often so obvious.
In one trial, a defense lawyer’s entire closing argument—his final chance to ask the jury to spare his client’s life—consisted of asking his client to stand up and then saying, “You are an extremely intelligent jury. You’ve got that man’s life in your hands. You can take it or not. That’s all I have to say.” In another trial, a lawyer failed to raise a single objection. One attorney called his client a “wetback” in front of potential jurors.
But at least these lawyers had been awake.
In three separate cases, the defense lawyer had fallen asleep through parts of the trial. In one, a resource center lawyer had discovered this fact during an investigation, when a former juror let the fact slip, but in another case the Houston Chronicle had reported on a sleeping lawyer while the trial was still under way. This lawyer was named John Benn, and his client, George McFarland, was facing the death penalty for a robbery-murder. Benn fell asleep when one witness was on the stand and woke up to find someone else there. Much of the cross-examination fell to his assistant counsel, and together they had spent fewer than ten hours preparing for trial. Neither visited the crime scene or interviewed witnesses. The Houston Chronicle reporter couldn’t believe what he was seeing, so during a break he asked Benn why he was sleeping.
“It’s boring,” Benn said.
The reporter asked the judge why he was allowing the trial to continue. The judge said the Constitution guaranteed you the right to a lawyer, but not necessarily one who was awake.
Such stories were not unique to Texas, but the state featured a number of political and cultural dynamics that made them especially likely. Part of the problem was money; counties were not paying enough to attract top shelf talent. In 1984, an El Paso trial lawyer received $11.84 per hour as he worked to defend a client from the death penalty. In Houston—which by 1992 was responsible for 10 percent of all executions nationwide—the pay was $600 a day for time in court, and judges had a reputation for appointing defense lawyers who would not pad the bill by stretching out the trials. Joe Frank Cannon, who also fell asleep in court, once bragged that he tried cases “like greased lightning.”
The Supreme Court had famously guaranteed a lawyer to anyone facing a felony charge in the landmark 1963 case of Gideon v. Wainwright, but two decades later the justices scaled the ruling back, deciding that these lawyers did not need to be especially effective; in a Florida death case, the Court ruled that a prisoner could get a new trial only if he could show that, had his lawyer not made an error, there was a “reasonable likelihood” that the result would have been different. A “strategic” choice could not be considered an error, even if it was clearly a poor choice in retrospect. The courts overseeing Texas used this standard to uphold death sentences in which the lawyering had been especially shoddy. The Fifth Circuit called the “You are an extremely intelligent jury” closing argument a “dramatic ploy.” Judge Michael McCormick, who presided over the state’s Court of Criminal Appeals from 1989 to 2000, later wondered whether lawyers who fell asleep during the trial might be doing so intentionally, as a tactic to get juries to feel sorry for their clients. In a 2017 interview he said, “Maybe the point was to have the jury see the sleeping lawyer and think, ‘Well, he’s not going to help the guy, so maybe it’s up to us.’ ”
Scouring the trial transcripts, Danalynn Recer saw beyond the violations of these prisoners’ rights, beyond crappy lawyers and miserly judges and ignored evidence of innocence. “We’ve lost the streets to them,” one prosecutor had said in 1974 while asking a jury to hand down a death sentence. “The whole community is in fear of them. Every one of us who puts bars on our windows, and loaded our guns, and every one of you ladies who has refused to go to the convenience store after dark, and every one of you men who refuse to let your wife go out at night, you’re a hostage.”
The word “them” ostensibly referred to violent criminals. But Recer had read hundreds of newspaper accounts of lynchings from the early 20th century, and she found these prosecutorial justifications reminded her the way citizens had once justified the mob killings of Black men, using racist rhetoric about the dangers of such men raping White woman. (In the 19th century, one of the founders of Texas, Stephen F. Austin, had used this racist trope to justify the continuation slavery.) When a prosecutor said of one defendant, “He had a predisposition to kill, he was ready to kill very easily,” Recer believed that the argument, as she eventually wrote in her thesis, “resonates clearly and convincingly against white Texans’ long-held perception of criminality as an immutable characteristic of black men.” While reading transcripts from the resource center, she found that the old archetypes of white female victims, robbed of their virtue through rape, shape-shifted but didn’t disappear. “Sweet and innocent as a child,” a prosecutor had described one victim.
Recer decided to extend her thesis beyond lynchings and early executions and into the present. At the same time, she kept getting asked to jump into cases, kept finding herself willing to help out. Although the center had initially been set up to recruit and train other lawyers, the number of executions continued to grow—twelve in 1992, seventeen in 1993—and as the well of lawyers ran dry, the center itself took the cases, often with only weeks or even days to go before a scheduled execution, as had happened with Eddie Ellis. In 1993 alone, Texas judges set one hundred execution dates. By the end of that year, the center had sixteen lawyers. What had struck Recer her first day as excitement was really its twin: panic.
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