Virtue and vice: who will report on the failings of the American criminal justice system?

• Author: Montross, William R., Jr.
• Position: Symposium: Media, Justice, and the Law

INTRODUCTION I. THE VIRTUES OF CRIMINAL JUSTICE REPORTING II. THE VICES OF CRIME REPORTING III. THE LIMITATIONS OF NEW MEDIA CONCLUSION INTRODUCTION

Above the fold: HUNTSVILLE, Texas--Texas executed [name of inmate or description of inmate as a killer] on [day of week] for [brief description of crime for which inmate was sentenced to death]. "[Final statement of inmate, made from lethal injection gurney]," [name of inmate] said. He was pronounced dead at [time], [number] of minutes after the lethal drugs began to flow. [Inmate's victim's family members' names] [and/or] [inmate's family members' names] watched through a window. "[Comment on execution]" they said / [they declined to speak to reporters] / [there was or was not eye contact between inmate and victim's family members]. [More detailed description of inmate's crime, perhaps explaining aggravating circumstances such as prior crimes.] [Whether [name of inmate] maintained his innocence / said the killing was accidental.] [Name of inmate] was the [ordinal number] person executed this year in Texas, the nation's most active death penalty state. Insert the name of the condemned man and some facts about the crime; add a paragraph quoting the victim's family; note any last-minute protestations of innocence or expressions of remorse on the part of the defendant; and update the execution tally. In a matter of grave national importance--the execution of Americans by this country's most notorious killing state, Texas (1)--this formulaic ritual constitutes American crime reporting. After a brief suspension during the United States Supreme Court's consideration of the constitutionality of lethal-injection procedures in Baze v. Rees, (2) Texas resumed executions in June 2008. (3) From that point until the end of the year, it executed eighteen people. (4) Each of the eighteen men killed by the state of Texas raised substantial questions about the fairness and validity of their convictions and death sentences: representation by ineffective trial counsel, mental illness, violations of international covenants, and failures by state and federal appellate courts to reach meritorious issues because of procedural bars. But such information has no place in the fill-in-the-blanks template employed by the newspapers providing coverage of the executions. Consider a few examples:

HUNTSVILLE, Texas--Texas executed a condemned inmate on Thursday for orchestrating and taking part in the robbery and killing of a man in Amarillo 13 years ago. "Blessed are they that mourn, for they shall be comforted," Larry Donnell Davis said in his final statement, quoting from the Bible. "It is finished." The parents of Davis' victim watched through a window a few feet from him but he never looked at them. He was pronounced dead at 6:19 p.m. CDT, eight minutes after the lethal drugs began to flow. Davis, 40, had been out of prison less than four months when authorities said he and several friends were involved in robbing an acquaintance, Michael Barrow, 26, and killing him at Barrow's home. Davis' execution was the fourth in Texas this year and the second in as many weeks. Davis was among at least 15 condemned prisoners with death dates in the coming months, including six in August. Davis acknowledged he was at Barrow's home the day of the killing and kicked the victim who had broken free of restraints on his hands and feet. But he insisted in a recent interview with The Associated Press he was not responsible for the fatal wounds. "They finished him," he said of his friends, who accepted plea deals for lesser sentences. "I don't mind being punished for something I did--not for something I didn't do." In a detailed confession to police, Davis said he tied Barrow's hands, held him down while an accomplice stabbed him and handed his accomplice the weapons, including an ice pick, a knife and a lead pipe. (5) HUNTSVILLE, Texas--Texas executed a former New York City hair stylist with a long criminal record Thursday for the robbery, rape and murder of an Army medic at her apartment near Fort Hood. "From Allah he came and from Allah he shall return," Denard Manns said from the death chamber gurney. Manns, 42, criticized or thanked various attorneys who had represented him, expressed love to friends and said, "I'm ready for the transition." He uttered what appeared to be a brief prayer three times and was pronounced dead 10 minutes after the lethal drugs began to flow. Manns' appeals in the courts were exhausted and the Texas Board of Pardons and Paroles, acting Wednesday on a petition filed by his lawyer, refused to commute his sentence to life in prison. Manns was convicted of raping and murdering 26-year-old Michelle Robson in 1998. The former mural painter from New York City had moved to Texas that year after being paroled after serving nearly six years in prison for armed robbery--his second stint in jail for the crime. He maintained he had nothing to do with the death of Robson, who lived with her husband a few doors down from where Manns was staying with his half brother and cousin in Killeen, in central Texas. Asked last week if he knew who committed the murder, Manns told The Associated Press from a tiny visiting cage outside death row: "That's not for me to discuss. Police get paid to ask those questions and find out. I would never tell them." Prosecutors said DNA and fingerprint evidence implicated Manns, who also was found with some of the slain woman's property. Investigators believed Robson, from Newton, Iowa, at least recognized her killer because there was no indication of a break-in at the apartment where she lived with her husband, Clay Wellenstein, also a soldier stationed at Fort Hood. He had gone home for a Thanksgiving visit to his family in upstate New York when he learned of his wife's slaying. Robson was found dead in a bathtub, shot five times with a .22-caliber pistol. Manns' cousin, Eric Williams, owned such a pistol, found a bullet on the floor in his room and turned the gun over to police after learning of his neighbor's death with a similar weapon. Tests showed at least one of the bullets recovered from the woman had been fired from the gun. Tests also showed Manns' fingerprint on the weapon. Other evidence showed Manns left a jacket belonging to Robson at the home of a friend the day her body was discovered and that he had a ring of Robson's. Manns was arrested the following month and tried in 2002. Manns was the 17th convicted killer executed this year in the nation's most active death penalty state and the second in as many days. Another three lethal injections are scheduled for next week in Texas. (6) HUNTSVILLE, Texas--Texas executed a man Wednesday who was convicted of killing a woman and her child, while Mississippi put to death a man who took part in the fatal beating of another man. Derrick Sonnier shook his head "no" when asked if he had any final statements. He was pronounced dead at 6:18 p.m. CDT, eight minutes after the lethal dose was administered. Sonnier was convicted of murdering Melody Flowers, 27, and her 2-year-old son, Patrick, in their Houston apartment in 1991. Flowers was raped, stabbed, strangled and beaten with a hammer until its handle broke. Her son was stabbed eight times. Her body was dumped into a bathtub filled with water and the child's body was tossed on top of her. Sonnier, 40, maintained his innocence. He made a similar trip to the death house seven weeks ago but was spared when the Texas Court of Criminal Appeals stopped his scheduled punishment after lawyers raised questions about the legality of the lethal injection procedures. That appeal subsequently was rejected, Sonnier's death date was reset for Wednesday evening and his legal avenues to avoid execution were exhausted.... (7) At a time when the attention of the citizens of Texas, and the whole nation, is most focused on Texas's death machine--as the act of execution occurs--the articles above, all from the Associated Press, constitute the near totality of information reported on these men and their cases. Nothing in these articles suggests that there was any reason not to kill these men. Almost entirely absent from the stories is any mention of the defense case or the defendant, other than a voyeuristic fascination with the condemned's last words. The above are examples of American crime reporting. They are succinct, superficial, and devoid of context.

There is also criminal justice reporting. Where crime reporting purports to answer the questions, "Who? What? When? and Where?," criminal justice reporting attempts to initiate conversation and debate about the far harder question of "Why?" Why is this man on death row? Why are people who kill a white person 400 to 500 percent more likely to receive the death penalty than people who kill a black person? (8) Why do courts seem more concerned with protecting a death verdict than ensuring that justice was done? Criminal justice reporting is the opposite of crime reporting. (9) Where crime reporting is salacious, criminal justice reporting is reasoned; where crime reporting ignores nuance, criminal justice reporting is full of complexity. Crime reporting appeals to a limited range of base emotions; criminal justice reporting elicits a far more complex emotional response, and, more importantly, it engages the intellect. Unfortunately, crime reporting increasingly dominates the American newspaper and criminal justice reporting has become an endangered species. The future of newspaper reporting on complex matters of crime and criminal justice is not in-depth investigative reporting, but superficial and callous treatment of complicated issues.

We are not journalists. Nor do we profess to be experts on journalism. Both of us are attorneys whose practice is devoted exclusively to representing individuals who face execution in the Deep South. We represent clients on death row. We do not have the ear of the American public. But...