Can the Death Penalty Be Saved from Its Supporters?

On the evening after the murder, Swafford and some buddies went to a bar in Daytona Beach called the Shingle Shack, where Swafford brandished a gun. When someone called the police, Swafford rushed to hide his pistol in the trash can in one of the restrooms; an employee then found a pistol in the men's room trash and gave it to the police. More than a year later, acting on a tip, investigators tested the gun. It was the Rucker murder weapon. That gun was the decisive evidence at Swafford's trial. No other physical evidence, and very little other circumstantial evidence, linked him to the crime.

Since November 1985, Swafford has been on death row in Florida. One of these days, perhaps even by the time you read this article, the Florida Supreme Court will rule on Swafford's request for a new trial. If his request is denied, a round of federal appeals will begin. No end is in sight. This is a pity, since Swafford may be innocent.

During Swafford's trial, there was a curious discrepancy. The Rucker murder weapon was found in the Shingle Shack's men's room. But a waitress had testified that she accompanied Swafford while he dumped his gun in the ladies' room. At the time, no one knew what to make of this discrepancy. In the 1990s, however, Swafford's attorneys began to piece together a story.

Shortly after the Rucker murder in 1982, police in Arkansas arrested a man named James Michael Walsh on charges of attempted murder. In his back pocket, Walsh was carrying a copy of the composite sketch of Rucker's killer, which the Arkansas police thought he resembled. They called detectives in Florida, who interviewed Walsh and his traveling companions. Two of Walsh's buddies placed him within a block of Rucker's Fina station a few minutes before the abduction. One of them, a man named Michael Lestz, said that Walsh reappeared four hours later, looking sweaty and nervous; then Walsh had Lestz drive him around to various local bars, including the Shingle Shack, to get rid of two .38-caliber pistols. None of this was known to the original defense attorney or to the jury that convicted Swafford. Walsh was never charged in the Rucker case.

Here you have two narratives of one murder, each circumstantial, each slightly odd. The state would have you believe that Swafford abducted Rucker, drove her six miles, raped, burned, and killed her, and then drove back to his chums, all within about an hour. The defense would have you believe that there were two .38-caliber guns in Shingle Shack trash cans, one (the murder weapon) dumped in the men's room by Walsh and the other in the women's room by Swafford.

When confronted with a mystery, the American legal system, like any great bureaucracy, takes refuge in red tape. The Swafford case is no exception. The defense demands a retrial based on new evidence; the state retorts that the new evidence isn't really new and wouldn't have changed the jury's mind anyway; the defense replies that it is new and it would have; and so on through the months and years, like a truck grinding back and forth in a sand pit. The law is scrupulous in its observance of procedural niceties. Meanwhile, in deference to those same niceties, the law ignores evidence that might resolve the mystery tomorrow.

Rucker, recall, was raped, and Swafford was convicted before DNA testing became available. I asked Swafford's attorney, Martin J. McClain, about DNA evidence. He didn't know if the evidence had been preserved. Why not demand to find out? Seven or so states allow an inmate to demand a post-conviction DNA test if it might show his innocence; Florida is not among them.

Of course, Florida could agree to examine DNA evidence voluntarily. In September, U.S. Attorney General Janet Reno endorsed a federal commission's recommendation that prosecutors, defense lawyers, and judges cooperate to examine DNA evidence "in those cases in which DNA testing may be determinative of innocence." Indeed, Reno went way out on a limb, recommending that "where DNA can establish actual innocence," all sides should favor "the pursuit of truth over the invocation of appellate time bars." For a lawyer, this is a pretty radical concept.

I called the state attorney general's office to ask whether the state would be willing to examine DNA evidence without further ado. After leaving three phone messages, I finally got this response: "That's not something we would be able to answer."

"In over half the cases where we got DNA exonerations," says Peter Neufeld, a co-director of the Innocence Project (a legal aid group), "prosecutors did not consent to DNA testing, and we had to secure testing through an order of the court. We had to litigate for three, four, five years."

Why, one wonders, do supporters of the death penalty imagine they're doing capital punishment a favor when they drag their feet about resolving doubt? They are right to empathize with the suffering of victims, and right to point out that opponents of the death penalty never met a defendant who wasn't innocent. They are also right to insist on the finality of trials.

But death is more final than a trial. Mistakes can never be corrected. Life imprisonment in the face of plausible doubt is tolerable because it is sometimes unavoidable. But death in the face of doubt should never happen.

In my opinion, whoever tortured, mutilated, violated, and then destroyed Brenda Rucker deserves to die. It seems to me that no one is entitled to torture, mutilate, violate, and destroy another human being and then enjoy life to a ripe old age. A death sentence, properly carried out in the face of clear guilt and irredeemable monstrosity, upholds rather than degrades the sanctity of human life. Anything less trivializes life by treating the crime too casually.

For exactly the same reason, however, an execution in the face of credible doubt trivializes life by treating the sentence too casually. If the state is going to seek to deprive a citizen of his life--that is, of everything--it needs to make sure he has not just a lawyer but a competent lawyer, before and after trial, with enough money to conduct a proper investigation. It needs to stop prosecutors and judges from hiding behind red tape in resolving doubts after conviction. If, at the end of the day, doubt persists, governors--who, according to the Death Penalty Information Center, have exercised clemency in only 42 capital cases since 1976 (vs. 650 executions)--need to be willing to commute capital sentences to life in prison without parole.

In Congress, a bill sponsored by Sen. Patrick Leahy, D-Vt., tries to plug some of these holes. It would use federal money and mandates to encourage states to preserve DNA evidence and, where the evidence might exculpate a convict, examine it promptly. The bill would also take steps to set minimum standards for defense lawyers in capital cases.

Paradoxically, the people who stand to gain the most from these sorts of doubt-reducing steps are the proponents of capital punishment. A few shrewd death penalty opponents understand as much. The (London) Times editorializes: "If, as seems likely, public concern leads to wider DNA testing, better legal representation, and more certain convictions, then the popularity of the death penalty will rise, and that stony little part of the American soul that condones judicial killing will harden once again."

These opponents also understand that their best friends are governors and parole boards who proceed with executions despite well-founded doubts, as Texas Gov. George W. Bush and the Texas Board of Pardons and Paroles did in the case of Gary Graham on June 22. With friends like Texas, the death penalty needs no enemies.

In moral terms--which, in the long run, are the only terms that really matter--the most important event in America this year is the public's growing concern about the possibility of executing innocent people. In January, when Illinois Gov. George H. Ryan (a Republican) cited 13 death row exonerations and declared a moratorium on executions until the error rate could be reduced, hardly anyone carped. Suddenly, the climate seems hospitable to measures such as Leahy's. Meanwhile, Roy Clifton Swafford, who has either been in prison or alive too long, waits