Justice On Trial

Leafing through the Babylonian Talmud recently--you know, that famously racist, sexist and God only knows what else Aramaic magnum opus--I came across this timely meditation: "A court which sentences to death one person every 70 years is deemed blood-thirsty."

The Talmud does not come down against the legality of the death penalty, only its propriety. There will be times when putting a murderer to death is entirely justified. Still, argues the Talmud, it is the responsibility of the court to be suspicious of its own impulses to draw blood, and to make doubly and triply sure that the man they choose to execute deserves to die.

Would that the United States legal system abided by this standard of humanity and decency. On Monday, the Supreme Court refused a stay of execution for Jesse Dewayne Jacobs, a Texan who did not commit the murder of Etta Urdiales, for which he was tried and convicted in 1987. On Wednesday of this week, Jacobs was executed.

There is more. Not only did Jacobs not commit the murder, but a Texas court found his sister guilty of that same crime only seven months after the original conviction. Jacobs' conviction was his own doing. Preferring the prospect of death to life in prison, he confessed to a murder that he did not commit. Later, it became apparent that his sister, Bobbie Hogan, had killed Urdiales.

The very same prosecutor who won the case against Jacobs attested to the credibility of his new testimony seven months later. The second jury was sufficiently convinced and sentenced Hogan to ten years imprisonment on charges of involuntary-manslaughter. But Jacobs lingered on death row. And now, nearly a decade since the murder, the smoking gun points unambiguously in the direction of the biggest culprit of all: the United States' justice system.

The history of the mismanagement of this case begins in Texas. The state courts, through an incredible contortion of reason and good sense, managed to convict two people for the very same crime. To do that, the courts had to rely on the following incredible contention: the knowledge that Ms. Hogan was in fact the trigger-woman did not constitute new evidence that might bear on the case of Mr. Jacobs. Is that the kind of thinking they teach in law school?

The Supreme Court, in denying Mr. Jacobs' stay, did not issue an opinion. How could they? How could they endorse the preposterous claims of the lower court, even implicitly, by claiming, like the United States Court of Appeals for the Fifth Circuit in New Orleans: "It is not for us to say" who in fact pulled the trigger.

And yet that is exactly what they have done. By refusing to grant Jacobs' stay, our nation's highest court became complicit in a judicial homicide. Save for the dissent by Justices Stevens, Ginsburg and Breyer, the court prioritized procedure over good sense and let an innocent man be killed.

In the very near future, New York State will join the 37 others that already have a death penalty. The death penalty is a hideous fact of our legal culture, perhaps a hideous necessity. But even if we decide to kill society's killers, we must do so in a way that communicates the gravity of that decision. We must not allow our own courts to become blood thirsty.

Jacobs' criminal history was a veritable laundry list of felonies. But that does little to excuse the callousness with which his case was handled.

In Washington, tonight, there are five men and one woman in black robes who ought not sleep too well.

Samuel J. Rascoff's column appears on alternate Fridays.