New Podcast: Capital Defense Lawyer Marc Bookman Discusses His New Book and the Systemic Defects that Have Sent the Death Penalty into ​‘A Descending Spiral’

In the July 2021 episode of Discussions with DPIC, DPIC Executive Director Robert Dunham talks with Marc Bookman, the co-founder and Executive Director of the Atlantic Center for Capital Representation (ACCR), about his crit­i­cal­ly acclaimed new book, A Descending Spiral: Exposing the Death Penalty in 12 Essays.

In their dis­cus­sion, Bookman and Dunham explore a wide range of sys­temic death-penal­ty prob­lems addressed in the book, which was released by The New Press in May 2021. The top­ics include men­tal ill­ness, racial injus­tice, judi­cial and juror bias, inef­fec­tive rep­re­sen­ta­tion, and prosecutorial misconduct. 

Bookman, whose essays have appeared in nation­al pub­li­ca­tions such as the Atlantic, Mother Jones, Vice, and Slate, decid­ed to write about the death penal­ty through indi­vid­ual sto­ries that illus­trate the depth of the prob­lems endem­ic to cap­i­tal pun­ish­ment. ​“The media has so mis­in­formed the pub­lic,” Bookman says. ​“My think­ing about this was that if the aver­age per­son … just knew the hon­est facts about the death penal­ty, they would be dis­in­clined to favor it, they would see it as the failed pub­lic pol­i­cy that it real­ly is. So, I decid­ed to write essays that … were not dense …. I tried to write it in a way that is acces­si­ble to the public.”

Andre Thomas and the prob­lem of men­tal ill­ness: he gouged out his remain­ing eye and ate it.

Bookman illus­trates the fail­ure of the death penal­ty to come to grips with the issue of men­tal ill­ness by telling the sto­ry of Texas death-row pris­on­er Andre Thomas. Thomas, who is pro­found­ly men­tal­ly ill, had unsuc­cess­ful­ly sought treat­ment for psy­chot­ic symp­toms, includ­ing audi­to­ry hal­lu­ci­na­tions and reli­gious delu­sions, in the days before com­mit­ting a hor­rif­ic triple mur­der. Believing his estranged wife was Jezebel, their son was the Antichrist, and her daugh­ter was an evil spir­it, he stabbed the three of them to death. Using sep­a­rate knives so as not to spread evil from one to the oth­er, ​“he removed their hearts and put them in his pock­et and went home,” Bookman said, leav­ing a fold­ed dol­lar bill back-side up at the scene. In prison await­ing tri­al, he gouged out his right eye to pre­vent the gov­ern­ment from spy­ing on him through it. After he was con­vict­ed and sen­tenced to death, he gouged out his remain­ing eye and ate it.

“His pro­found men­tal ill­ness could­n’t be much more obvi­ous,” Bookman says. ​“And yet, the state of Texas sought [and] achieved [a death sen­tence] and con­tin­ues to seek his exe­cu­tion.” And as for the dol­lar bill: on the back, in the left-hand cir­cle, there is a pyra­mid with 13 tiers and an eye look­ing out at the top of the pyra­mid. Thomas referred to him­self as the 13^th war­rior, one for each tier. Given his reli­gious delu­sions, the New Testament pas­sage in Matthew 5:29, ​“If your right eye caus­es you to sin, gouge it out and throw it away,” was par­tic­u­lar­ly sig­nif­i­cant. ​“When some­one com­mits a crime like this, giv­en his moti­va­tions, his hal­lu­ci­na­tions and delu­sions, and reli­gious moti­va­tions, he obvi­ous­ly is less cul­pa­ble than most oth­er peo­ple who com­mit a crime of murder.” 

“We’re talk­ing about a man who is about as men­tal­ly ill as you can get, and he’s leav­ing bread­crumbs along the way to see it. It’s hard to miss it,” Bookman said. Yet the pros­e­cu­tion found a men­tal health expert who tes­ti­fied that Thomas was ​“malin­ger­ing” — “[t]hat’s the old ​‘fol­low the mon­ey sto­ry,’ in my opin­ion,” Bookman says — and Thomas’s ​“pro­found­ly inef­fec­tive” court-appoint­ed lawyers ​“miss[ed] those breadcrumbs.”

How to tell the stories

Bookman’s account of the Andre Thomas case also informed the way he craft­ed the indi­vid­ual essays and chose the order in which they appeared in the book. ​“When I would write an essay, I would always try to find a new issue” to empha­size, he says. ​“In oth­er words, if I wrote an essay about pros­e­cu­to­r­i­al mis­con­duct, I would try to write the next essay about inef­fec­tive assis­tance of coun­sel or a racist juror. Whatever the top­ic was, I would try to change my top­ic. But as I delved into the case, I would always find over­lap­ping issues. …. So, you know, while I would start out try­ing to write on one top­ic, it nev­er worked out that way, because a bad defense bar leads to pros­e­cu­to­r­i­al mis­con­duct, a bad defense bar leads to racism in the sys­tem, … mis­takes by witnesses.” 

That is one of the key points of the book and key prob­lems of cap­i­tal pun­ish­ment, Bookman says. The issues are ​“all inter­wo­ven. So, while I would try to pick a top­ic that I had­n’t writ­ten about before, there was always an over­lap. … There’s nev­er just one isolated problem.”

Race is an issue ​‘in vir­tu­al­ly all’ death penalty cases

It is hard to talk about the death penal­ty with­out talk­ing about race, Bookman told Dunham. ​“A lot of peo­ple think racism is at the heart of cap­i­tal pun­ish­ment, that it was a legal replace­ment for lynch­ing,” he says. ​“You see race dis­crim­i­na­tion in so many of these cas­es, vir­tu­al­ly all of them, in my opinion.” 

“In Andre Thomas’s case,” Bookman says, ​“the racial issue is about as obvi­ous as it gets. He’s a Black man who kills his white wife, her mixed-race chil­dren, one of whom was his.” Three of the empan­eled jurors and one alter­nate said in their juror ques­tion­naires that they opposed inter­ra­cial mar­riage. Yet, the defense lawyers per­func­to­ri­ly ques­tion one of the jurors ​“and then they don’t ques­tion the oth­ers at all,” Bookman said. ​“So, these three peo­ple opposed to inter­ra­cial mar­riage sit in judg­ment.” Worse yet, he explains, ​“Andre Thomas had some white friends and those friends tes­ti­fy at his tri­al as char­ac­ter wit­ness­es. … And the pros­e­cu­tor at the end of the case stood up and said, how would you like your daugh­ter or grand­daugh­ter to come and date Andre Thomas? —a very, very overt attempt to arouse racial prej­u­dice amongst this jury.” 

While the issue of race ​“is all over this case, … it is very, very hard not to rec­og­nize racism in many of these cap­i­tal cas­es,” Bookman said. A Descending Spiral also con­tains an essay about an overt­ly racist judge and anoth­er about a juror who used the N word in explain­ing why he returned a death sen­tence against a Black defen­dant. ​“These cas­es are not iso­lat­ed inci­dents,” Bookman stress­es, point­ing to a scan­dal in Pennsylvania ​“about racist, porno­graph­ic, misog­y­nis­tic emails that cir­cu­lat­ed through­out the jus­tice sys­tem that ulti­mate­ly required two jus­tices from the Pennsylvania Supreme Court to resign.”

Defense coun­sel: ​‘the cen­tral ques­tion’ and ​‘a mys­tery of the ages’

Bookman calls the prob­lem of inad­e­quate defense rep­re­sen­ta­tion ​“the cen­tral ques­tion” in the admin­is­tra­tion of the death penal­ty in the U.S. A tri­al lawyer for 17 years in the Defender Association of Philadelphia’s renowned homi­cide unit, he points to the city’s expe­ri­ence as a ​“petri dish” in which to exam­ine the impact of coun­sel. The Defenders were per­mit­ted to begin han­dling Philadelphia cap­i­tal cas­es only after more than 100 defen­dants already had been sen­tenced to death under the city’s court-appoint­ment sys­tem. Still, Defender rep­re­sen­ta­tion was capped at 20% of the city’s homi­cide cas­es. During Bookman’s time in the unit, anoth­er 90 men and women were sent to death row from Philadelphia, but not a sin­gle client of the Defender Association was sen­tenced to death. 

Bookman dis­cussed a RAND Corporation study of Philadelphia homi­cide cas­es pub­lished in the Yale Law Journal that com­pared the out­comes of cas­es han­dled by the Defender Association, who, he says, ​“applied the ABA guide­lines [on death penal­ty rep­re­sen­ta­tion] and took the cas­es very, very seri­ous­ly” with the out­comes in cas­es han­dled by court-appoint­ed lawyers who ​“were not resourced, they were not trained, they were not con­sult­ed with, and they were con­se­quent­ly hor­ri­bly inef­fec­tive.” Defender Association clients, the study found, were ​“61% less like­ly to be con­vict­ed of first-degree mur­der, 19% more like­ly to be acquit­ted entire­ly, and your over­all sen­tence was 24% less,” Bookman explained. ​“The kick­er to this study,” he said, was that over the course of the 11 years of cas­es RAND reviewed, ​“the tax­pay­ers saved over $200 mil­lion in incarceration costs.”

Bookman notes that he’s ​“not talk­ing about Dream Team defense coun­sel.” What’s nec­es­sary, he says is ​“qual­i­fied and effec­tive defense coun­sel.” In Virginia, which in its his­to­ry from colo­nial days to the present exe­cut­ed more peo­ple than any oth­er U.S. juris­dic­tion, ​“they brought in region­al coun­sel offices … that basi­cal­ly end­ed the death penal­ty there. For years and years and years, 10 years, no death sen­tences in Virginia, all because of com­pe­tent and effec­tive defense attor­neys. And Virginia then end­ed the death penal­ty because there was no point in hav­ing it any­more. Spending mon­ey for a pun­ish­ment that was nev­er returned was fool­ish for the Virginia leg­is­la­ture, and they end­ed the death penalty entirely.”

To Bookman, ​“the les­son learned seems clear: not only are you going to avoid a death sen­tence with com­pe­tent lawyers, but you’re going to save tax­pay­er mon­ey if we just prop­er­ly fund com­pe­tent, effec­tive lawyers. And why we don’t do that is a mys­tery of the ages.”

‘We need to pros­e­cute’ pros­e­cu­tors who hide evidence 

About a third of the essays in A Descending Spiral involve overt pros­e­cu­to­r­i­al mis­con­duct. Bookman crit­i­cizes the Brady rule — the con­sti­tu­tion­al test for dis­clos­ing excul­pa­to­ry evi­dence that leaves it to pros­e­cu­tors to deter­mine what impact the evi­dence would like­ly have on a case — as hav­ing ​“very much of a fox-guard­ing-the-hen­house kind of feel.” It is an inad­e­quate rem­e­dy in a sys­tem in which, Bookman says, “[p]rosecutors con­sis­tent­ly are hid­ing evi­dence that we dis­cov­er some­times decades later.” 

“There is a cure for this prob­lem,” he says, ​“and it’s a cure that we nev­er take or almost nev­er take. When we catch a pros­e­cu­tor hid­ing evi­dence that puts some­body in prison for decades, we need to pros­e­cute that pros­e­cu­tor. … [W]hen you’re obstruct­ing jus­tice in such an overt way, you real­ly have to be pros­e­cut­ed for it.”

Bookman says ​“I’ve been in court­rooms where judges have said, thank­ful­ly, we’ve avoid­ed an injus­tice here when some­one gets out of prison 20 years lat­er, who might have been exe­cut­ed. … I hard­ly call that avoid­ing an injustice.”

A les­son from the Titanic 

Bookman ends his book — and he and Dunham end their dis­cus­sion — with an alle­go­ry based upon a state­ment by the sec­ond mate on the Titanic. ​“What I was most con­cerned about when I was putting this book togeth­er was the idea that I was cher­ry-pick­ing these cas­es,” Bookman says, ​“that I was find­ing the worst judge and the worst pros­e­cu­to­r­i­al mis­con­duct, and the worst racist lawyers and jurors, and putting it togeth­er and kind of try­ing to paint a pic­ture of just how awful things were, when real­ly I was just pick­ing 11 or 12 isolated situations.” 

The mes­sage of the book, he says, ​“is that these are not iso­lat­ed instances. … I am not cher­ry pick­ing the dis­as­ters that these essays rep­re­sent.” Bookman did not select any high-pro­file cas­es for his essays; the cas­es, he says ​“are rel­a­tive­ly unknown” to the gen­er­al pub­lic. ​“And that was the point,” he says, ​“that if you look at the aver­age case, these cas­es are lit­er­al­ly, to steal the alle­go­ry, they are the tip of the ice­berg. … [T]he prob­lem is much broad­er and greater than we might real­ize. And once we real­ize that, then end­ing the death penal­ty seems like the log­i­cal con­clu­sion to draw.”