Capital Defense Lawyer Marc Bookman Discusses His New Book and the Systemic Defects that Have Sent the Death Penalty into 'A Descending Spiral'

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

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


Robert Dunham 0:02

Hello, and welcome to Discussions with DPIC. I’m Robert Dunham, Executive Director of the Death Penalty Information Center. In this episode, we’ll be speaking with Marc Bookman, the co-founder and Executive Director of the Atlantic Center for Capital Representation, and a nationally known capital defense lawyer, capital defense trainer, and advocate for death row prisoners and juvenile offenders sentenced to mandatory terms of death in prison. He’s also a noted essayist, whose stories have appeared in national publications such as The Atlantic, Mother Jones, Vice and Slate. His new book, A Descending Spiral: Exposing the Death Penalty in 12 Essays, was released to critical acclaim in May 2021. Marc served as a member of the Defender Association of Philadelphia’s renowned homicide unit from 1993 to 2010. After more than 100 defendants had been sentenced to death under Philadelphia’s abysmal, indigent defense system, the Defenders were permitted to begin handling capital representation, but were limited to 20% of the city’s homicide cases. During his 17 years 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. As death sentences were vanishing from Philadelphia, Marc left the Defender Association to co-found the Atlantic Center for Capital Representation or, as it is known, ACCR. Despite for decades having the nation’s fourth largest death row, Pennsylvania still provides no state funding for indigent capital defense services at any stage of capital trials or appellate proceedings. Entirely private funded, ACCR has been Pennsylvania’s only source of comprehensive case consultation and case specific training services. After the US Supreme Court ruled in 2016 that mandatory life without parole sentences were unconstitutional for juvenile offenders, ACCR expanded its work to include resentencings for the hundreds of prisoners serving juvenile life sentences in Pennsylvania. Marc Bookman, welcome to Discussions with DPIC.

Marc Bookman 1:57

Thanks for having me, Rob, good to see you.

Robert Dunham 1:59

Good to see you. First of all, Marc, I need to say that I spend a lot of time reading about the death penalty and so much of it is dense academic writing that you just have to kind of bear down and plow through it. But A Descending Spiral is just beautifully written and the melody of each of the essays carried me along so I didn’t want to put it down. What gave you the idea of painting a picture of the death penalty through essays?

Marc Bookman 2:24

The media has so misinformed the public, I think over many years. My thinking about this was that if the average person — you don’t have to be a lawyer, you don’t have to, you know, have a PhD — 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, as you said, were not dense, were not loaded with footnotes because I think the more people know about this policy, the less they’re going to like it. So I tried to write it in a way that is accessible to the public and frankly, I’ve always been a writer. So it was very easy for me to combine my interest in writing and my obvious obsession, for lack of a better word, with trying to end the death penalty.

Robert Dunham 3:16

Your book makes the point that while one issue may stand out in a death penalty case, there’s never just one thing that goes wrong. So how did you decide what to focus on in a given story? And how do you decide what other factors to weave into it?

Marc Bookman 3:32

When I would write an essay, I would always try to find a new issue. 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, as I delved into the case, I would always find overlapping issues. If you read all the essays, more than half of them deal with racial discrimination, probably at least a third of them deal with overt prosecutorial misconduct. So, you know, while I would start out trying to write one topic, it never, 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, you know, mistakes by witnesses. These are all, just all interwoven, so while I would try to pick a topic that I hadn’t written about before, there was always an overlap and that’s because our system of justice just leads to that conclusion. There’s never just one isolated problem. The problems kind of clash with each other and end up with a lot more than one problem.

Robert Dunham 4:52

One of the cases that you wrote about that I think is extraordinarily fascinating — and is also just gripping because of the odd things that happened — in the case of Andre Thomas. You say it’s all about his eye. Can you tell us about that and the impact of mental illness and how that affects the death penalty system?

Marc Bookman 5:14

Andre Thomas’ case is really, it really is fascinating. I hope your listeners will forgive me for a quick summary of the facts, which are not — they’re not easily received. Andre Thomas is a very, very profoundly mentally ill person who committed a pretty horrific crime. He killed his separated wife and her two children, one of whom was his. After he did that, he removed their hearts and put them in his pocket and went home. He felt that he was being driven by the Bible. He saw his separated wife as Jezebel. He saw one of the children as an evil spirit, and a few days after that, again following a text from the Bible, he removed one of his eyes and — it’s called autoenucleation — and then several years after that, he blinded himself by removing the other eye. So you know, while the crime is horrific, his profound mental illness couldn’t be much more obvious. He used three separate knives to remove the hearts from the victims, again, trying not to contaminate each other. So, we’re talking about someone who is about as mentally ill as you can be, and yet, the state of Texas sought, achieved, and continues to seek his execution. It’s an incredible case in so many ways, and we haven’t even touched on the racism of the case, which I’m guessing you’re going to get to reasonably soon.

Robert Dunham 6:54

One of the other in some senses repulsive, but also really attractive features in the case is that after he blinded himself and took out his second eye, he ate the eye. How can the system believe that someone who blinded themselves by gouging out their own eye and then eating it is somebody who should be sentenced to death?

Marc Bookman 7:19

There has been a movement, that you’re well aware of, of barring the death penalty for severely mentally ill people. We bar it for the intellectually disabled and we bar it for juveniles, and both really for the same reason: that they’re less culpable, frankly. Because of their youth, because of their low functionality, they’re less culpable. Well, someone who is as severely mentally ill as Andre Thomas, and many others equally mentally ill — perhaps not as graphically, but equally, severely mentally ill — should be barred for the same reason. It’s just a lack of culpability. 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 the crime of murder. So, there is a movement afoot to bar the death penalty for the severely mentally ill, and recently — I guess it’s the state of Ohio that passed, or at least they’re close to passing it, if I’m not mistaken.

Robert Dunham 8:27

Ohio has become the first state that has barred the death penalty for people who are seriously mentally ill, whose mental illness affected their offense. One of the things that we see in these cases — and you also reference the case of Scott Panetti, who represented himself while dressed in a purple cowboy suit and tried to subpoena Jesus Christ and the Pope and some others to testify in his proceedings. For these people to be subject to the death penalty, there have to be doctors who say that they are mentally competent. And in Andre Thomas’s case, you mentioned that he was institutionalized for treatment for his disorder, but doctors had to say that he was competent to stand trial. So what happened in his case?

Marc Bookman 9:14

No one sought treatment more regularly than Andre Thomas. As mentally ill as he was, he also recognized how mentally ill he was. Two days before he committed this crime, he went in for — sought treatment from a mental health facility that did not give him the treatment — he basically just wandered off. This touches on a whole different subject, which is our failure to provide mental health treatment for those who desperately need it. But the irony of — it’s not even irony in the Andre Thomas case — is that the doctor who examined him, and frankly the prosecutor as well, claimed he was malingering after he removed his first eye. Committing a crime like he committed and seeking mental health treatment just, you know, days before he committed the crime — and many other times in his past — and then removing his eye and a doctor saying that was malingering is shocking. Of course, after he removed the second eye, no one claimed he was malingering then, but the inertia of pushing this case forward continues. The truth is, if you look under enough rocks, you’re going to find a doctor willing to say anything. I think that’s the situation here. Every jurisdiction in the country has a doctor who works closely with prosecutors who would say anybody is competent under any circumstances. That’s the old “follow the money story” in my opinion. So I don’t know how anyone could possibly have considered him competent at the time. He was sent to a mental health facility — it’s one of those facilities that teaches you how to be competent, which is: what’s the role of the judge?; what’s the role of the prosecutor?; what’s the role of the defense attorney?; okay, you’re competent. But anyone that does the work we do, knows that that’s not at all enough to establish competency.

Robert Dunham 11:08

It’s interesting, because you and I have both handled a number of capital cases and we see this kind of “doctor death” phenomenon, where doctors will come in, they will say things that are completely inconsistent with what the record actually shows. And the bottom line is that they say the person is either faking the mental illness, or they’re not as disturbed as they would appear on the surface to be, or they’re not intellectually disabled, they’re borderline, whatever. How do you overcome the sense that defense lawyers are just exaggerating this stuff?

Marc Bookman 11:42

I think that we have such a poor understanding of mental health at this point. I often say that 50 years from today, we’re going to look back at our understanding of the brain and how it works, and be horrified. So I do think there is an instinct to think — and I think the media has helped this — to think people are faking it, people are malingering. But in a case like Andre Thomas’s, you really have to look the other way. Not only did he use three knives, not only did he put the hearts of the three victims in his pockets, he left a dollar bill at the scene of the crime, he called afterwards and told his in-laws that he thought he was in hell, then he removed his eye. So you’d have to, you’d have to really go out of your way to think that that was all — not to mention a long history of mental illness that the lawyers did not uncover until post-conviction. And the lawyers did not do a good job here at all. In fact, they did a pretty profoundly ineffective job here, but you have to look the other way to think that this is malingering when you look at the totality of Andre Thomas’s mental illness. So, you know, how do you overcome it, you overcome it through thorough discovery process and an honest appraisal of the facts. I think that’s the only choice you have.

Robert Dunham 13:09

And for our listeners, you mentioned that Andre Thomas left a dollar bill at the scene. In one of the sections of this essay that I found really harrowing — and something that I hadn’t understood until I read your essay — on the back of the dollar bill, there’s a pyramid and it has 13 steps. And at the top of the pyramid there’s this eye and Andre Thomas referred to himself as the 13th warrior, one for each of the steps. And then there’s this eye at the top that symbolizes something. And with his gouging out his eyes, the significance of that dollar bill becomes extraordinary.

Marc Bookman 13:49

Yeah. He obviously has some obsessions and delusions and hallucinations. We talked about it — he knew he had them, frankly. He had moments where he understood how mentally ill he was, so leaving the dollar bill with this eye at the scene and then of course, removing his eye — I think it’s Matthew in the New Testament. You know, he’s obviously thinking about these things ahead of time. For awhile, after the crime he had duct taped his lips together. I mean, 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. You have to, like I said, you have to look the other way to miss the obvious trail of evidence that he’s leaving. And regrettably, the trial lawyers, not uncommonly, did miss those breadcrumbs even though they’re right in front of the face. No one was denying that the dollar bill was left at the scene of the crime, just the significance of it was missed at trial, apparently,

Robert Dunham 14:59

You alluded to this earlier, Marc, that it’s almost impossible in a death penalty case to avoid the issues of race. Andre Thomas is another one of those cases. Andre Thomas, like other famous cases — Rodney Reed, Pervis Payne, Walter McMillan, Emmett Till — all have in common interracial sexual relationships or at least fear by white people of Black male having a relationship, consensual or otherwise, with a white woman. How did that play into Andre Thomas’s case? And how have you seen that play out in other cases?

Marc Bookman 15:37

In Andre Thomas’s case, 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. In the jury questionnaire, four jurors — one was an alternate, three actually sat in judgment and said in their questionnaire that they were opposed to interracial marriage. That’s what we have right here — we have an interracial marriage. So, three of the jurors are opposed to interracial marriage and the defense attorneys don’t question these jurors — they question one of them very routinely, just a couple of questions, and then they don’t question the others at all. So these three people opposed to interracial marriage sit in judgment. And frankly, it’s worse than that, because Andre Thomas had some white friends and those friends testify at his trial as character witnesses, basically. 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? Kind of a very, very overt attempt to arouse racial prejudice amongst this jury, three of whom — a quarter of the jury — said they were opposed to interracial marriage. Race is all over this case and, as you point out, while this one is about as obvious as it gets, it is very, very hard not to recognize racism in many of these capital cases. I wrote several other essays, one about a racist judge, an overtly racist judge, and another about a juror who said he returned a death sentence against the defendant and he used the ‘N word’ in explaining why. A lot of people think racism is at the heart of capital punishment, that it was a legal replacement for lynching when lynching was made illegal — of course, it always was illegal because it’s murder — but that capital punishment kind of took the place of lynching. And so you see race discrimination in so many of these cases, virtually all of them, in my opinion.

Robert Dunham 17:55

And when people talk about the death penalty and racial bias, they find it all over the place. We see statistically, you are much more likely to be capitally charged if the victim is white. When you then look at the race of victims, you find that a defendant of color is more likely to be sentenced to death. We both worked in Philadelphia, where it’s clear: the disproportionate use of jury strikes to eliminate jurors of color — over 20 years, the Philadelphia DA ‘s office struck Black jurors at twice the rate of white jurors and struck white jurors who lived in integrated neighborhoods at twice the rate at which they struck white jurors who lived in highly segregated neighborhoods. But you look at the issue, discussing some of the other biases that don’t get much attention, and one of them you mentioned a moment ago: bias by judges and jurors. And one of the cases you talk about is Randy Halprin — he’s back in the news right now as he gets an evidentiary hearing to try to prove his claim. Will you walk us through the judge’s bias in Randy Halprin’s case?

Marc Bookman 19:05

Sure. So, the judge — he’s no longer a judge. His name is Vickers Cunningham — he was a very well known racist amongst his family and court staff. He had a trust fund set up for his children, that they only received the money from the trust if they married white, Christian, opposite sex marriage. So this is a well known racist. Many of his court staff and family quoted his racism, but it wasn’t known to the public until his brother came forward years later, when Cunningham was running for Commissioner — which I’m reasonably certain he lost that election. In any case, Randy Halprin is Jewish, and then-Judge Cunningham was pretty overtly anti-Semitic. So, he sat as the judge in that case, not revealing his anti-Semitism. Subsequently, the lawyers, discovering his anti-Semitism, raise the issue and what happened, just a few days ago, is the prosecutor came forward and said, his trust fund and so forth, the words he uses are egregious and abhorrent, but we don’t see that he was biased in any way in the way he conducted the trial — which I think is an absurd position for them to take. Any trial lawyer knows — and frankly, any juror knows — that a judge can bias the proceedings in a million different ways, just by the tone of his or her voice. The many, many discretionary rulings that a judge makes, has a huge impact on the trial, so having an overtly anti-Semitic judge sitting in judgment over a Jewish defendant or a racist judge sitting in judgment over a Black or Hispanic defendant, it’s all of a piece. And in this case, the last note has not been sounded yet in the Halprin case. I found the prosecutors position to be at best naive and at worst, you know, intentionally misleading to the public, I think.

Robert Dunham 21:20

If this judge were a juror and the statements that he made were known to counsel, he’d have been thrown off the case for cause. Why don’t we have a similar requirement for judges?

Marc Bookman 21:35

Yeah. Unless, of course, the lawyers were the same as the Andre Thomas lawyers at trial, they might not even have questioned it if he said he was anti-Semitic. Who knows? But you’re right. The analogy is actually perfect. For any competent lawyer, he would not have been a fair juror. You know, I think it’s important — I make this point in the book pretty regularly — these cases are not isolated incidents. As you well know, Rob, both of us practicing in Pennsylvania, there was an email scandal about racist, pornographic misogynistic emails that circulated throughout the justice system that ultimately required two justices from the Pennsylvania Supreme Court to resign. Racism among judges, it’s not an isolated problem. The courts staff should have, frankly, come forward about this. It would have been nice if the family came forward instead of keeping it as a secret. I think the really, the fascinating question here — and Halprin is one of the Texas Seven. For listeners that don’t know, seven people that escaped from prison in Texas, and so Cunningham was the judge for a number of these cases. In one of the cases, the state claimed that maybe Cunningham was racist in 2010 whenever it was revealed, but there’s no evidence he was racist in 2003 when this man’s trial took place. Cunningham’s an adult — I think he was 50 years old, so the idea that he wasn’t a racist at 43 and was enough of a racist at 50 to come up with this trust, is a little absurd. In another case, the state claimed that Cunningham was, in fact, a racist during the trial; it should have been litigated, but since it wasn’t revealed, it’s the defense’s fault. So what all this comes back to is how much our laws are designed to avoid confronting these issues honestly on the merits. These procedural hurdles that get put up to stop this litigation, that’s really the story here. Courts will go to almost any lengths to avoid confronting the fact that they have a racist judge who presided over a number of capital cases. Frankly, pretty outrageous.

Robert Dunham 23:58

The same kind of problem with racist judges, you also have with hanging judges. For whatever reason it is, they are going to sentence somebody to death, no matter what. And you open your book with the story of Buford White, who was tried in Florida. A jury unanimously recommended a life sentence and his judge sentenced him to death, and his judge sentenced a number of other people to death. Florida was a state that required judicial sentencing. So what do we do about systems like that, where you go through extensive trial, you go through a penalty phase where you present the evidence to a jury, but none of it matters because the judge has already made up his mind before the trial started, that this person is going to get the death penalty?

Marc Bookman 24:48

Frankly, and thankfully, this is becoming a little bit less of a problem in one regard, which is that states are now hesitant to let judges kind of overrule the jury’s decision. I mean, who would have thought that when a jury voted unanimously that Buford White should live, that he would be executed only a few years after that? That’s an outrageous thing that I think most people would not know. And the Supreme Court has had a chance several times to kind of rectify this and say, look, judges can’t overrule juror decisions here, and they’ve passed each time. So it’s very disappointing that our Supreme Court hasn’t seen fit to kind of rectify what would appear to be obvious injustice. But the problem goes a little deeper than that, frankly, because while thankfully we’re seeing fewer judges overrule juries — we still see it, but less often — we still see bad judges, hanging judges, in your phrase, and the court system just funnels case after case to these same judges. In Philadelphia, there’s at least one legendary hanging judge and several others who put many, many people on death row. And over and over and over again, the court system saw fit to give these same judges — judges who got reversed by courts subsequently, many times — the court system saw fit to give these judges over and over again, the most serious homicide cases. So to some significant extent, the courts are in league with what you would say is our hanging judges. That’s pretty shameful.

Robert Dunham 26:30

One of the themes that we see throughout death penalty cases across the country is that counsel makes a difference. I mentioned in the introduction, there were 90 death sentences imposed in Philadelphia since the Defender Association of Philadelphia homicide unit was permitted to handle 20% of the cases, and if counsel made no difference, with the 90 death sentences that were imposed, 18 of those would have been Defender Association clients. Zero. No one represented by the Defender Association ever got the death penalty. And in Virginia, and in Texas, and in North Carolina, and in many other states where qualified institutional defenders were established, we’ve seen the death penalty plummet. What’s your take on that?

Marc Bookman 27:16

That is the central question. I’m glad we got to that. First of all, let me just say that qualified and effective defense counsel — I’m not talking about Dream Team defense counsel — I’m talking about competent and effective defense counsel. In Virginia, the legislature — and talking about a state that executed more than any other state historically, Virginia was number one, ahead of Texas, partially because it was around longer, but they brought in regional counsel offices in Virginia 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. I want to take a minute to emphasize your point out of Philadelphia. Philadelphia was what I call a petri dish to study defense attorneys because as you pointed out, 20% went to the Defender Association, 80% went to court-appointed lawyers. The 20% in the Defender — and I’m going to immodestly mention that I was in that office as you point out for this time frame. From 1994 to 2005, the RAND Corporation did a study of these cases, of homicide cases. The Defender Association applied the ABA guidelines and took the cases very, very seriously. Court-appointed lawyers were not resourced, they were not trained, they were not consulted with, and they were consequently horribly ineffective. What the RAND Corporation found that is, was that if you were lucky enough to have a defender office as your lawyer, you 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. And you can find all this in the Yale Law Journal. The kicker to this study was that over those 11 years, the taxpayers saved over $200 million in incarceration costs. So, 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. Virginia certainly learned its lesson. I’m waiting for Pennsylvania and Alabama and other states to learn the same lesson: that if we just spend a little bit of money upfront, we’re going to save a huge amount of money in the back and we’re going to have a lot more justice.

Robert Dunham 30:11

So one of the key roles that we see as a gatekeeper in capital cases is the prosecutor. The data all indicates that the single most important fact in determining whether a case is going to be capitally prosecuted isn’t what you did, it’s where you did it and who the prosecutor is at the time. When you were writing this book, what did you see that prosecutors were doing that were causing so many problems in death penalty cases?

Marc Bookman 30:39

Well, there’s no way to sugarcoat this. Prosecutors consistently are hiding evidence that we discover sometimes decades later. I wrote an essay about Terry Williams out of Philadelphia, where he was accused of two murders. The same prosecutor hid evidence in both cases. We see this just over and over and over again and there’s something called the Brady rule, which most of your listeners may know, which is the prosecutor has to turn over exculpatory evidence. But the people that make the decision about what is exculpatory are the prosecutors. There’s very much of a fox-guarding-the-henhouse kind of feel to the whole thing. There is also a reality that high profile cases, for lack of a better word, they’re cases where prosecutors become self-aggrandizing in a really, really awful way. The desperation about winning those cases leads prosecutors to do things that I’d like to think they wouldn’t normally do, which is basically hiding evidence so that they can win. There is a cure for this problem, 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. I am not a prosecutor myself, but there are plenty of prosecutors out there and when you’re obstructing justice in such an overt way, you really have to be prosecuted for it. We don’t even discipline prosecutors who get caught hiding evidence, let alone actually prosecuting them for a crime. And in fact, 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. But instead they’ve lost 20 years of freedom — I hardly call that avoiding an injustice. We need to take prosecutorial misconduct much more seriously.

Robert Dunham 32:41

I think one of the biggest reforms that we’re seeing nationwide is happening at the county level — that’s the election of reform prosecutors. I know that, for example, in Los Angeles, which has more people on death row than any other county in the United States, they just elected George Gascon as the DA. And since 2015, prosecutors who are responsible for jurisdictions that account for 1/3 of everybody on death row in the United States have had new elections with new prosecutors who say that they are not going to impose the death penalty or are going to use it sparingly. What does that suggest to you with respect to the future of the death penalty?

Marc Bookman 33:24

Again, Philadelphia is at the forefront here, for good news and bad — in this case, for good news. Larry Krasner was the first progressive prosecutor and certainly anybody that has followed Larry’s career knows that he backs up what he says on the campaign trail. And here’s the lesson that we have to learn. I know speaking to the Death Penalty Information Center audience, I might be preaching to the choir, but I think for years, we the royal we, as a community have considered ourselves martyrs on this issue: that we’re somehow smarter than everybody else, that we know that the death penalty is not a good idea, and if we can only persuade all of these other people. Well, here’s the lesson that we learn, which is these other people have been persuaded. We’re not martyrs. We’re in the majority. And we have to start thinking like we’re in the majority, and we have to start persuading judges, and prosecutors, and, most importantly, legislatures that we’re in the majority. When people run against the death penalty, they’re winning their elections and we constantly see what I consider a polling mistake, which is we ask people how they feel about the death penalty, and 55% or so say they’re for it. But that’s the wrong question. The right question is, after you’ve convicted someone of the most serious crime, would you sentence that person to life without the possibility of parole or the death penalty? That’s where the majority say life without the possibility of parole, and in fact, when life with the possibility of parole is thrown into the mix, it’s pretty clear that between life without and life with parole, a majority of people favor that punishment over the death penalty. More and more, we’re starting to realize the death penalty is not as popular as people want to believe it is.

Robert Dunham 35:18

Marc, we’ve covered a lot. But at the same time, it feels like we’ve barely scratched the surface. And I guess that’s also the point of the book. The afterword to your book starts with a quote from Charles Lightoller, the second officer on the Titanic, in what I thought was a brilliant blend of the literal and the metaphorical. And at first, I thought the metaphor might be that the death penalty with its mythologically impermeable, enhanced procedural safeguards had become a sinking ship. But it turns out the ship isn’t the focus of your analogy. What’s the message of the Titanic’s second officer? What does he have to tell us about the death penalty?

Marc Bookman 35:57

What I was most concerned about when I was putting this book together was the idea that I was cherry-picking these cases. 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. And so the message of the afterward — and I get into it pretty thoroughly — is that these are not isolated instances. These are not — I am not cherry picking the disasters that these essays represent — that they are much more common than we realize. I didn’t pick any high profile cases. I didn’t write about, about OJ Simpson or Scott Peterson. I didn’t pick cases that were well covered by the media. These are relatively unknown cases outside of our community. And that was the point: that if you look at the average case, these cases are literally, to steal the allegory, they are the tip of the iceberg, that the 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.

Robert Dunham 37:16

Marc Bookman, thank you so much for joining us on Discussions with DPIC.

Marc Bookman 37:20

Rob, thank you for having me.

Robert Dunham 37:22

Marc Bookman’s book, A Descending Spiral, is available in both hardcopy and e-book. You can find it on the publisher’s website, at or on the Amazon and Barnes and Noble websites. To learn more about the death penalty, visit the Death Penalty Information Center website at To find out more about the work at the Atlantic Center for Capital Representation, visit ACCR’s website at And finally, to make sure you never miss an episode of our podcast, subscribe to Discussions with DPIC on your podcast app of choice.