Covering the death penalty trial of killer David Snelgrove for seven days last week and this I often felt like I was in a Saudi Arabian, Iranian or Chinese courtroom, where state-sanctioned murder stille exists, as it somehow survives–cynical word–in 29 of our own states.
Here were these admirable lawyers, the judge, expert witnesses for both sides with storied careers in medicine or psychology, all of them talking in intellectually sparkling tones about whether or not Snelgrove should be strapped to a table and killed. He’d murdered two elderly people, Glyn and Vivian Fowler, 84 and 79, 20 years ago. Of course it was heinous. No murder is ever not. But so is revenge killing, a premeditated and choreographed act of torture and terror that brings neither closure to family survivors nor deterrence, two rationales still braiding the state’s noose.
The constant talk of death as a “penalty” kept reminding me of “The Penal Colony,” that story by Franz Kafka about the aging executioner lovingly showing off his torture and death machine to a visitor (“each of these parts has acquired a kind of popular nickname,” the executioner says, an echo of our own perverted habit of giving nicknames to electric chairs and lethal injection tables), and lamenting the fact that it’s no longer in favor: “you will see that the execution has no support from the public, a shabby ceremony–carried out with a machine already old and somewhat old and worn.”
Our system, still popular, is also falling apart. We botch executions. We botch trials and sentences, as was repeatedly the case with Snelgrove. In Florida we condemn the wrong people to die, accounting for 29 of the nation’s 166 death row exonerations, and counting. Imagine that: 166 people wrongfully put on death row. Imagine how many were wrongfully killed, how many more will be. “But still and all, these are just numbers. They overwhelm the mind and then are easily forgotten,” Solzhenitsyn wrote about executions in his own country during Stalin’s reign. You may think we’re different because we dress up our death machinery in constitutional pretenses and invocations to justice and victims’ rights, and when all else fails, in cherry-picked slogans like “eye for an eye” out of the same book that also says much less metaphorically: you shall not kill. But we’re not different, and in this case we’re worse: Russia at least abolished the death penalty. We cling on.
The whole machinery stands on gallows of morally indefensible absurdities. Jury selection, that otherwise noble phase of trial, in death penalty cases isn’t much different than a Salem witch trial. It’s stacking the deck for killing. The clerk had to call in 150 potential jurors because so many of them would have to be weeded out just because they oppose the death penalty. By the time the 12 and alternates are picked death penalty defendants don’t face juries of their peers. They face juries capable of ordering a hit, and even then, only in the most cowardly way. None of the jurors would be pulling the lethal lever. None of them would even be sitting as witnesses to the murder they’d be recommending. Not even the prosecutors or the judge would be, though for anything like a death sentence, anyone with a hand in it should also be willing to be the executioner, or at least witness the death chamber. If that were the bar for qualification on a jury, there would be no such juries.
Then there are the legal absurdities. You can’t be tried more than once for the same offense. But with a little sophistry you can carve out an exception for the sentencing phase, ensuring even more room for error. Snelgrove was tried three times in the sentencing phase, because the first two times were either botched or unconstitutional. Those repeated re-trials should themselves be unconstitutional, and will be found so sooner or later. Juries recommended death 7-5 and 8-4 in two previous trials. Because of the lack of unanimity, in any other state Snelgrove would have immediately been condemned to life in prison without parole after that first recommendation.
It would have ended right then and there, 18 years ago, just as his defense lawyers argued it should in 2002. But no. The late Kim Hammond ordered death, and the grim comedy of errors began. Florida law changed in 2016, finally requiring a unanimous jury. (Voltaire was calling for the same requirement in 1766). Never mind that it was too late for the hundreds already killed. Snelgrove was again put through a third trial, ending Tuesday. Again a jury failed to reach unanimity, splitting 9-3. But a man’s life should not hinge on such luck of the draw, drawn out over two decades.
This time Snelgrove, a 47-year-old man with the intellectual capacities of an early adolescent, was immediately sentenced to what he should have been sentenced 18 years ago: life in prison. The judge with the lawyers’ eagerness sprinted to that decision, literally within minutes of the jury’s verdict, as if to ensure that it stuck before something could yet again undo it.
I don’t doubt that even the prosecutors have their misgivings about these perversions of the justice system, considering the enormous amount of time and resources they have to devote to these cases when they could be prosecuting more pressing and common crimes. Not that state attorneys’ offices need much sympathy in this regard: they’re well funded, stacked and stocked. Public defender offices are not. They and their clients are paying the heaviest price, with death cases holding the system hostage by drawing massive resources away from non-death defendants owed more serious representation. That’s where justice fails daily, out of sight and, unconscionably, out of mind. The public at large doesn’t know, doesn’t care. All it sees, all it wants, is that killing. In the American South especially, as in most Islamic states–a blood affinity American death penalty fans prefer to ignore–the lust for death trumps any rational understanding of a justice more ethical than vengeful.
But Flagler County has a way of restoring one’s faith in justice once in a while, the way those three jurors did this week. Flagler is one of the rare counties in Florida that hasn’t had anyone executed–not when the death penalty was legal between 1924 and 1964, and not since it was restored in 1973. In a telling parallel, it is also one of the rare counties that, in a state that had more terror lynchings than any other (331), hasn’t had a single recorded lynching in its history. State-ordered executions of course are no different than lynchings. Barbaric in themselves, they’re intended as terrorism, as lynchings were, and disproportionately target blacks and minorities. We call it deterrence, a euphemism for terrorizing prospective criminals by making examples of the condemned. But it’s still lynching on an installment plan.
Snelgrove’s case is closed. The judicial torture chamber is not. We get to go through it all over again in Flagler next month with the case of Cornelius Baker, who murdered Elizabeth Uptagrafft in 2007 and whose previous jury also could not find unanimity to murder him in turn. And we’ll all again play our miserable roles, each in our little box of bluffed civility–judge, lawyers, jurors, family, bailiffs, press, spectators–each pretending, between our little bathroom breaks and lunch breaks and breaks for a good night’s sleep, that this is as normal as any other criminal proceeding, each suspending disbelief to pretend that this lynching in the making, this mob hit robed in all-rise sacraments, is justice.