Death Penalty Still No Way to Achieve Justice
By Randy Johnston
Ruben Gutierrez had just moments to live.
The Texas death row inmate, convicted of the 1998 murder of an elderly woman in Brownsville, was set to die at the hand of the state in July. And then, 20 minutes before he was to receive a lethal injection, the U.S. Supreme Court stepped in and granted an indefinite stay.
For Gutierrez, this is not his first near-death experience halted by a last-minute high court reprieve. In 2000, he was about an hour away from execution when the court stepped in.
In Texas, death is part of our system of justice. That’s true in spite of the fact it is ineffective, unfair and racist.
I say that not from a position of advocacy alone, but from one of personal experience too. I learned a lot about the system half a lifetime ago when I represented a man who had been condemned to death. I wrote about the case for Texas Lawyer in 1998.
My involvement in the case, like many throughout my career, was a result of another lawyer not doing his job. I took the case of Esequel “Kelly” Banda, who had been convicted of killing a 72-year-old woman in Hamilton in 1986. He had a great trial lawyer defending him, unlike most, but his appellate lawyer essentially abandoned him. He filed a cursory, six-page appeal brief (counting the style and signature page) only after being threatened with contempt for missing repeated deadlines.
Over the years, Kelly had avoided four execution dates—one he just barely escaped. There was a time when new dates with death were being set for Kelly just two weeks after the old one was set aside. After five years, I finally got him what he was entitled to—a new, real appeal.
I succeeded in getting him a new appeal, but then I became the dog that caught the car: I was now supposed to handle the appeal of a capital murder case. Luckily, I had the help of the Texas Resource Center at the University of Texas Law school and a lawyer in New York who advised me and helped. We ended up with a good brief, I think 120 pages, but to no avail. We still lost at the Texas Court of Criminal Appeals.
Next was Federal habeas and I think I filed with the District Court and an appeal with the Fifth Circuit and lost both. All that was left was to file with the Supreme Court. In the meantime, the trial court set Kelly’s execution for December 1995. He asked me to come visit him in prison a few months before that date.
Before Kelly had opted to halt his appeals, he asked me if I would attend his execution. He did not want his family there but also did not want to be alone. I agreed to be present when he was executed, so I made the drive to Huntsville to witness my client’s death.
I spent much of Kelly’s last day with him, although there was little I could do for him since he was adamant about not filing any further appeals.
Once the lethal injection protocol began, Kelly blinked hard and said “dizzy” before shutting his eyes.
I haven’t taken another death penalty case since Kelly’s execution.
I was truly shocked by the death penalty industrial complex: everything in place so that the state can kill people. And then, of course, make everyone think that it is all right for the state to have done so.
I was left with the very clear feeling that I was just a cog in that wheel. Without me and lawyers like me, they couldn’t kill them because it would just be cruel. But as long as good lawyers step in to handle the appeals and the habeas, they can point to all the free legal representation these men and women got and still they lost, so it must be okay to kill them. But what they never talk about is the futility of the appellate process because of the often-inadequate representation death penalty defendants get at trial.
I actually told several people afterward, with only slight exaggeration, that lawyers should simply refuse to represent death row inmates because they would be doing them a favor. If all the lawyers would boycott and refuse to defend a death penalty case, we could stop the executions because the state couldn’t execute them without good counsel representing them and giving the false appearance that the system was fair.
Perhaps that’s an approach Mr. Gutierrez’s lawyers should consider.
Randy Johnston is a trial lawyer and shareholder at Johnston Tobey Baruch in Dallas. His email is randy@jtlaw.com.
Reprinted with permission from the September 13th issue of Texas Lawyer © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.