On this date in 1993, Leonel Herrera was executed by lethal injection in Huntsville, Texas, for shooting two policemen. Herrera’s last statement averred,
Herrera’s sister Norma self-published this book about the case — keeping a promise to her executed brother.
I am innocent, innocent, innocent. Make no mistake about this; I owe society nothing. Continue the struggle for human rights, helping those who are innocent, especially Mr. Graham. I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready.
Well, Herrera wasn’t the first to go to his death maintaining his innocence. The circumstances (and circumstantial evidence) of the crime rate on the forgettable side.
Years after Herrera was convicted and death-sentenced, multiple affidavits were produced to the effect that his late brother, Raul, was the real killer.
This evidence was naturally pursued with gusto by the condemned man.
Unfortunately, a claim like Herrera’s of “actual innocence” faces a very high bar when raised in appellate courts, once a prisoner has already been convicted and their presumption of innocence become a presumption of guilt.
That this arbitrary rule of the game has a defensible rationale — could any criminal justice system operate if prisoners could continually relitigate their cases while memories fade and evidence ages into obsolescence? — does not make it the less Kafkaesque for individual prisoners, some of whom are in fact innocent.
Herrera presented this problem in unusually stark terms. Lacking any procedural violation upon which to hang his hat as an appeals issue, his claim pitted substance against form in the Supreme Court. (Oral arguments at Oyez.org)
You already know how it ended.
Chief Justice William Rehnquist’s opinion patiently explained a jurisprudential truism loftily uncolored by any experience in life liable to introduce a sense of kinship with a Hispanic man charged with a Texas cop-killing who uncovers too late the evidence that could save him.
“[A]ctual innocence” is not itself a constitutional claim.*
Instead, the Court recommended — tongue no doubt planted firmly in cheek — that Herrera apply for executive clemency, a dead letter procedure in Texas used exclusively in a good cop/bad cop routine opposite the black robes.
“Judicial restraint forbids relieving you,” says the court. “Go ask the governor.”
“The courts have thoroughly reviewed the case,” intones the governor. “May God have mercy on your soul.”
Herrera himself may or may not have been innocent. At the end of the day, he went down because the game was rigged against him: his exculpatory evidence was not available at trial, when it might have introduced “reasonable doubt” — as Rehnquist’s opinion put it, “in state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant.” Once that evidence became available deep in the appeals process, it was procedurally barred, and far from such a slam-dunk exoneration that any institutional actor would stick his, her or its neck out to lift Leonel Torres Herrera from the gurney.
Justice Harry Blackmun’s dissent retorted,
Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.
Whether “simple murder” happened in Huntsville this night in 1993, perhaps no one can really say with certainty.
But as DNA evidence and other forensic advances in the intervening years have increasingly eroded confidence in the reliability of the justice system that metes out death, Herrera v. Collins stands as a key precedent in a case now before the Supreme Court — in which states (joined by the Obama administration) are asking the justices to agree that convicted prisoners have no right to cheap, simple, and frequently dispositive DNA testing that may not have been available when they were tried.
Given the composition of the court (including three holdovers from the Herrera majority), that decision figures to have Leonel Herrera rolling over in his grave.
* Rehnquist conceded a theoretical possibility that extraordinarily persuasive evidence could generate relief on due process grounds. Antonin Scalia and Clarence Thomas went much further, claiming that prisoners had no right to anything but their trial and their (procedural) appeals.
On this date in 1890 the iconic symbol of the American death penalty made its grisly debut upon the person of William Kemmler at New York’s Auburn Prison.
The long New World tradition of hanging condemned prisoners came under fire as a barbarism in the late 19th century, leading reformers to look for killing procedures less likely to result in a horrendously protracted strangulation or a midair decapitation. As Empire State Governor David Hill put it,
The present mode of executing criminals by hanging has come down to us from the dark ages, and it may well be questioned whether the science of the present day cannot provide a means for taking the life of such as are condemned to die in a less barbarous manner.
On this stage, Executed Today presents a rogues’ gallery of homo Americanus, the salesmen and swindlers who would help the U.S.A. ride the lightning.
The Dentist
A true renaissance man, Buffalo dentist Dr. Alfred Southwick, applied his active mind to the need to better kill a fellow, and soon hit upon an inspiration — that is to say, a town drunk hit upon an electrical generator and died instantaneously, and the observant Southwick said “eureka!”
Without the subsequent industry of this neglected gentleman, who added to his repertoire scientifically-minded electrical butchery of animals alongside political gladhandings to bring a flutter to a busybody’s heart, the Chair’s entire oeuvre of machismo-sadism might have missed the country altogether. Just imagine living in a world where New York had pioneered its other leading reform alternative: lethal injection.
(This, incidentally, is why the chair is a chair, and not a bed or a stake or a St. Andrew’s Cross: because the guy who thought of it spent all day administering his own tender mercies to seated penitents.)
The Plutocrats
As Southwick nagged his senator and shocked stray cats into the great hereafter, the gears of commerce strove relentlessly ever-onward. The business of America was ever business, and never more so than the Gilded Age.
And the business of killing people was about to become the biggest business there was.
The age of electricity was buzzing into incandescence, and two rival standards were at currents amped over eventual dominance of this stupendous industry. Thomas Edison’s earlier Direct Current (DC) standard was being challenged by Nikolai Tesla’s Alternating Current (AC), backed by the financial muscle of George Westinghouse.
Cheaper and more efficient, AC tilted the playing field against Edison. Seeing his days numbered, the Wizard of Menlo Park fought back the way any dinosaur industry would: dirty.
This clip of the electric demise of a circus elephant — don’t hit “play” if you’re not up for animal cruelty — is from some years later (Edison kept tilting at windmills and megafauna carcasses as his DC empire disappeared), but it’ll give a sense of the horrifying spectacle.
With the New York legislature’s embrace of Southwick’s seated voltage people-eater, Edison turned his PR gears on the state, demanding they adopt his competitor’s “deadlier” current for the contraption. And they did, reflecting a widespread belief inculcated by Edison’s experiments — as this New York Times article on an Edison crony’s public livestock-killing show in the days leading up to the advent of the electrocution law indicates:
The experiments proved the alternating current to be the most deadly force known to science, and that less than half the pressure used in this city for electric lighting by this system is sufficient to cause instant death.
After Jan. 1 the alternating current will undoubtedly drive the hangmen out of business in this State.
Too bad for Edison that the business he was really trying to kill was made of sturdier stuff.
The Alcoholic Vegetable Merchant
As the 1880’s wane, we come at last to our subject — in several senses of the term — an illiterate nobody of German stock who chanced to kill his common-law wife with just the right timing to join in a new kind of experiment.
William Kemmler mounted a “cruel and unusual punishment” appeal against his sentence funded by Westinghouse himself: no dice. Perhaps appreciating the odd foothold on history he was about to attain, he showed little worry as he entered the execution room and sat himself — “undoubtedly the coolest man in the room,” a journalist present reported.
The End of the Beginning
That reporter’s description for the New York Herald graphically captures humanity’s first horrible encounter with this “humanitarian” machine, beginning with the prisoner’s parting remarks.*
Doubtless he knew that his words will go down in history and he had his lesson well learned. He addressed his audience [in] a commonplace way and without hesitation.
…
“Well, gentleman, I wish everyone good luck in this world, and I think I am going to a good place, and the papers have been sa[yi]ng a lot of stuff that isn’t so. That’s all I have to say.”
And so with a parting shot at what he was good enough to refer to not long ago as “those d—d reporters,” William Kemmler took his leave of earth. The quiet demeanor of the man as he entered had made a strong impression on those in the room. His self-possession after his oratorical effort simply amazed them. He got up out of his chair as though he were anxious to try the experiment, not as though he courted death, but as though he was thoroughly prepared for it. …
There was no delay. Kemmler constantly encouraged the workers at the straps with “Take your time; don’t be in a hurry; do it well; be sure everything is all right.” He did not speak with any nervous apprehension.
Warden Durston leaned over, drawing the buckle of the straps about the arm. “It won’t hurt you, Bill,” he said, “I’ll be with you all the time.”
A minute later Kemmler said, “There’s plenty of time.” He said it as calmly as the conductor of a streetcar might have encouraged a passenger not to hurry.
…
Kemmler was pinioned so close that he could hardly have moved a muscle except those of his mouth.
The Warden took a last look at the straps. “This is all right,” he said.
“All right,” said Dr. Spitzka, and then bent over and said, “God bless you, Kemmler.”
“Thank you,” said the little man, quietly.
“Ready?” Said the Warden.
“Ready,” answered the doctors.
“Goodbye,” said the Warden to Kemmler. There was no response.
GAVE THE SIGNAL.
The Warden stepped to the door leading into the next room. It was then forty-three and one-half minutes past six o’clock by the prison clock. “Everything is ready,” said the Warden to some one hidden from view in the next room.
The answer came like a flash in the sudden convulsion that went over the frame of the chair. If it seemed rigid before under the influence of the straps, [it] was doubly so now has it strained against them.
The seconds ticked off. Dr. McDonald, who was holding the stopwatch, said “Stop.”
Two voices near him echoed, “Stop.”
The Warden stepped to the door of the next room and repeated the word “Stop.”
As the syllable [passed] his lips the forehead of the man in the chair [grew] dark [in] color, while his nose, or so much of it as was exposed, appeared a dark red.
There was very little apparent relaxation of the body, however. [A] fly lighted on the nose and walked about unconcernedly. The witnesses drew nearer to the chair.
“He’s dead,” said Spitzka, authoritatively.
“Oh, yes, he’s dead,” said McDonald.
“You’ll notice,” said Spitzka, “the post-mortem appearance of the nose immediately. There is that remarkable change that cannot be mistaken for anything else, that remarkable appearance of the nose.”
The other doctors nodded [assent]. They looked at the body critically for a minute and then Spitzka said, [“]oh, undo that now. The body can be taken to the hospital.”
“Well, I can’t let you gentlemen out of here until I have your certificates,” said the Warden.
FOUND SIGNS OF LIFE.
It was while this businesslike conversation was going on that Dr. Balch made a discovery.
“McDonald,” he cried, “McDonald, look at that rupture,” he pointed at the abrasion of the skin on Kemmler’s right thumb. In the contraction of the muscles the figurehead[?] scraped against it and removed the skin, and from that little [wound] blood was flowing-[an] almost certain indication of life.
A low cry of horror went through the assemblage.
“[Turn] on the current,” excitedly cried Dr. Spitzka. “This man is not dead.”
The crowd fell back from the chair, as though they were in danger. The Warden sprang into the closed door and pounded on it with his hand.
“Start the current!” he cried. As he spoke of fluid began to drop from Kemmler’s mouth and to run down his beard; a groaning sound came from his lips, repeated and growing louder each time.
It seemed [an] age before the card was again turned on. In fact it was just seventy-three seconds from the end of the first contact when the first sound was heard to issue from Kemmler’s lips, and it was not more than a half [minute] before the card was again turned on.
RECOVERING CONSCIOUSNESS.
But every second to that time the horrible sound from those groaning lips was becoming more distinct, [a straining] of the chest against the leather harness stronger and more evident.
The man was coming to life. The spectators grew faint and sick. [Men] who had stood over dead and dying [men] and had cut [men] to pieces without an emotion [grew] pale and turned their heads away.
One witness was forced to lie down while one of the doctors fanned him.
But [the end] came at last. There was another convulsion of the body, and … it became rigid with the rigidity of iron.
“That man wasn’t dead,” cried Spitzka excitedly. As he spoke the body twitched again. The electrician had given the current gain new alternation and now 2,000 volts [were] playing in short, successive shocks down Kemmler spine. The sound ceased with the first convulsion, but the fluid continued to trip from the mouth and down the beard, making the body a sickening spectacle.
“Keep it on now until he’s killed,” said one of the doctors. …
“Keep it on! Keep it on!” Cried Warden Durston through the door.
Silence reigned for a moment. A bell without began to [toll] solemnly. …
BURNED BY THE CURRENT.
Then from the chair came a sizzling sound, as of [meat] cooking on hand. Following it immediately a billow of smoke came from the body and filled the air of the room with the odor of burning hair.
There was a cry from all the members of the little group, and Warden Durston cried through the door leading to the next room to [turn] the current off.
More shocking — so to speak — papers ran the next day’s headline “Kemmler Westinghoused,” the verb “to Westinghouse” being another shameless Edisonian bid to stamp his marketing project onto the Queen’s English. This fine, rounded, archaic neologism the right sports anchor could resuscitate as a fresh synonym for thrashing, horsewhipping, poleaxing, or else (in greater justice) for moderation and decency as the only principal in the sordid affair that rejected death-dealing by electricity.
(Officially, Edison also opposed the death penalty. Like Dr. Guillotin, he was doing his part for humanity in the meantime … just with a little skin in the game. Did we mention the business of America is business?)
Official reviews for the “art of killing by electricity” were, ahem, mixed.
“They could have done better with an axe.”**
-George Westinghouse
“Strong men fainted and fell like logs on the floor.”
-New York Herald
“Revolting … a disgrace to civilization.”
-New York Times
“We live in a higher civilization from this day on.”
-Alfred Southwick
Books (remarkably numerous!) about the creation of the electric chair
It should, in fairness, be noted that the U.S. was not the only country (pdf) to mull an electrocution chair in the 19th century … but it was (and for a long time remained) the only one to actually use one.
* The Herald excerpt, along with several other articles from the same paper about the Kemmler execution, is here, but the text has obviously been generated from a scan with uneven results. As I do not have access to the originals, [bracketed] remarks in the excerpt indicate this author’s own interpretations or interpolations of seemingly mistaken transcriptions.
** Some sources make it “would have done better with an axe.”
