Legislating the Death Penalty
Hicke
Let me get back to why there are more death penalty cases now. Is that what you said?
Poole
Remember that the Supreme Court held a lot of those cases unconstitutional. It took a long time for the states to get legislation
that comported with the requirements of having the jury weigh and determine the mitigating factors, if any, against the non-mitigating
factors, or the aggravating factors. So they
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had to do this, and they didn't do it very well at first because they still wanted to stick it to the person, have some advantage
for the prosecution. Remember that was a Court that had been the Warren Court. It took some time, and the cases just backed
up on them because when they finally got the statute that would pass muster everybody was appealing everything.
Hicke
What did the statutes do, after the states got the statutes?
Poole
The statutes provided, as I say, for the jury to consider aggravating factors—the factors that made him a bad person, in effect.
Hicke
So, they sort of implemented this opinion?
Poole
Keep in mind that the statutes were evolved over the years by what the Supreme Court let stand and what it didn't let stand.
So even though they tried right after the Florida case had outlawed the substance of most of these death penalty statutes,
and the legislatures rushed to put something in its place, they didn't do it well. They put in something that, on the face
of it, looked as if it was requiring standards for the jury to determine. In fact, it was mostly a lot of words that they
were doing. So these statutes received scrutiny in other cases as the years went on, and pretty soon it got to the place where,
by the way, they are still—in transition. They still are. They now uniformly set up a procedure by which the jury is required
to articulate which factors they find to be the aggravating factors and which are the mitigating factors. It's sort of like
they get a special verdict where they have to answer these questions, you see. Those cases which the Supreme Court has allowed
to go through, and there are a lot of them now, are cases in which the statute itself is challenged. Arizona has had some
of its statutes challenged within the last three years or so. The California statute was challenged but not successfully.
[Robert Alton] Harris went to his death.
The counsel for the lawyers would bring up these cases repeatedly. They would bring a habeas corpus case based upon something,
and they then would put that in a different form. So the Supreme Court has been knocking down these objections, saying that,
in effect, when you have a habeas corpus case, you've got to set forth all of the complaints that you have or reasonably can
be expected to know about. If you don't do that, then you're presenting—and if you come back again after you've already had
one try at habeas, then you have what they call a successive petition. The Supreme Court has been angry at the lower courts,
our court [Court of Appeals for the Ninth Circuit] and others, because they say that we've disguised it in some other similar
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successive petitions. I think the Supreme Court is weary of it, and I think that they're really hard-nosed now on it.
Hicke
Does mandatory sentencing come in here?
Poole
Mandatory sentencing?
Hicke
Is there any mandatory sentencing regarding the death penalty?
Poole
Well, if the jury found a single mitigating factor, it could, if they really want to, turn this guy out of the death phase.
It could find that this single mitigating factor was sufficient to nullify the aggravating factors. And if that's so, that
would be its verdict. Nobody can do anything with that verdict. But jurors generally are not—these are horrible cases—the
jurors look at them, and I think a whole lot of the jurors feel that, well, you know he's had his day in court. He's been
in court many times. We're going to have to support him for the rest of his life if we give him life imprisonment, and it's
a terrible thing that he did.
Now they've introduced the fact that you can also bring into the courtroom, into the trial, the impact upon the victims' families
and loved ones. So they can get up and cry and whoop and holler. I think that's the damnedest thing they ever did to those
statutes. The whole idea is to let the victims' loved ones, who are there for revenge— The father of the boys in the Robert
Alton Harris case was there at San Quentin that night. He came to be a witness to the execution. And boy, after it was all
over, he came out and he said he was on his way to Sacramento because the next morning they were going to have breakfast meeting
of those people who belonged to the victims—some kind of a victims' organization they have. He was happy.
Hicke
Yes, that's revenge.
Poole
Oh, it's revenge. It's revenge, and we don't know what else to do with them. You see other things. Every time people start
talking about penalties less than death, the argument is made that you the taxpayers will have to bear the burden of his support
for the next twenty-five, thirty years. He didn't give those two little boys any—
You asked me how I react to it. Well, I guess the fact really is that in many cases, except those that we have in this court
here that I've become personally involved in, I just have to kind of shut them out.
Hicke
Shut them out?
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Poole
I read about what happened in Florida or Maryland or some place, and I look to see just how horrible was it. What kind of
person was this? If you get a guy with an IQ of about eleven or nine and they're going to execute him because he's physically
able to do something horrible, I don't want to read about it. I just shut it out.
But when I get the cases that we have here—the minute that we started getting things like this, I tell you—I just got rid
of some of it the other day. They were sitting back over there [gestures] and that was a stack this high [gestures]. That
was a case in which the young fellow said he didn't want any lawyers to try to reverse the death penalty or get him out; he
wanted to go. He hired, or somebody hired for him, a lawyer whose only function was to reject any application for leniency
or last minute application for reversal. That was his only function. Then his mother filed a petition, and the state of Washington
said that his mother was not a party to this action. She had no standing. Legally, that's true if you were talking about a
guardianship, for which she had not been appointed. These are arguments that you listen to or you tolerate only because you've
made up your mind. Your mind is already made up.
Our functioning in these cases is usually whether the last minute argument that comes up makes this a successive petition.
The theory that the Supreme Court has articulated now is that the whole idea is to confine you to one bite at the federal
apple, and if the supreme court of the state for any reason wanted to stay an execution, it could do it any time it wanted
to. The Supreme Court has nothing to do with that. But the habeas corpus is provided for in our Constitution, and it has always
been known as the great writ. It is the writ that can be the great protection of people who might otherwise be part of a despised
group.
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It was used a great deal after Lincoln had entered the Emancipation Proclamation, in the next fifty years that followed, where
the former slaves, their descendants, or families were often the victims of mobs and that sort of thing. They were used in
a kind of a pristine sense then, because habeas corpus or a resort to the federal court could be for the reason that they
were being denied equal protection of the laws. I remember at one of our symposiums, Justice Marshall, who passionately believed
that the writ of habeas corpus was being minimized by this court, said so.
Hicke
You mean the Ninth Circuit Court?
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Poole
No, the Supreme Court of the United States. And he said at one of these meetings [laughs] that when you get proper case and
the judge won't grant it, he ought to be shot.
Hicke
And you said the death penalty policy is still in transition. Where have the courts been going with it?
Poole
Well, they used to hang most of the people. Sometimes justice didn't wait—they'd shoot him on the spot. Montana still does
it by shooting, and there are still two or three states that do it by hanging. One of the arguments made in the case we have,
which is Campbell, is that Campbell has long ago crossed into successive writ country. [Laughs] Some of these guys are very ingenious. He has
hired and fired lawyers on, I would say, at least four occasions since we've had this case. What he does is, he started off
charging his lawyers with incompetence. When he filed his first writ of habeas—well, he did it to the Washington State Supreme
Court first, and then it came into California. It came to our district court in Washington, and he charged his lawyers with
incompetence because they didn't make the arguments the way he thought they should have been made, and so forth, like that.
Naturally, he's before the Washington State Supreme Court and he's charging his trial lawyers with incompetence, they can't
defend him. So the Supreme Court of Washington appointed counsel for him. The Supreme Court then denied his petition.
He then came to Seattle, to the district court in Seattle. Actually, this was the second time he had been to the district—habeas
corpus in the Ninth Circuit. He had done so the first time, oh, I think it was back in about 1987. But he came, and this time
he asked the Ninth Circuit Court, asked us—it was a three-judge panel and I was on the panel—he asked us to allow him to make
some arguments that his lawyers, because of their incompetence, had not made. Then we got notification that some law firm
had been contacted by Campbell, who asked them to represent him. They did. They entered and they filed some papers there.
We got ready to have an oral argument on it, and he fired them. [laughs] He's been doing this ever since he's been here. Games
are played on both sides of the line. The real deep down problem we have is that the judges and the authorities in the state
convince themselves and the courts that these people on death row are all playing the same game. So it becomes easy for some
prosecutors to simply shrug it off. The guy is just trying to beat the chamber.
Now, the state of Washington punishment was by hanging. One of the things that Campbell argued was that to inflict the punishment
of hanging on him was cruel and unusual punishment, because first of all, he said they didn't have a competent hangman
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up there. If they don't do it right, instead of breaking the neck and rendering the fellow for all intents and purposes unconscious,
he'd just be in agony. So they hired somebody who was supposed to be a competent man with the rope. See, there's a big knot
they put in, and when it goes down, it's this knot that breaks the neck.
Hicke
It's an unusual argument.
Poole
They then changed the statute in Washington, and they left hanging in, but they gave the alternative that the prisoner could
elect to have the poison needle injection. Now I don't know how painless that is. But in any event, Campbell then filed a
new writ. He said it was cruel and unusual punishment to put him to making the choice. [Laughs] So you can go on and play
these games; they go on forever. They're pretty serious. That case is still around here. I think it's going to come to a head
pretty soon.
Hicke
Do you think these cases are going to get to be more and more of a burden on the court?
Poole
The Supreme Court has really been very stern with it, or it certainly has been with our court. They think we're the sucker
court of the country. Nobody here feels any sense of disgrace. Someone came to see me one day, and he said, "By the way, not
for attribution—" I said, "When you say that, it means that you're going to describe everything about me except my middle
initial." [Laughs] "No," he said, "no, no, no." He said, "What is your response to the way the Supreme Court of the United
States has kind of stayed awake at night?"
We had the Robert Alton Harris case. I was down here until late at night, and I had two law clerks that were here until one
o'clock in the morning. I went home, I was exhausted, and they were to keep in touch with me. That case was stayed twice that
night, and we voted on it a couple of times that night. The Supreme Court each time lifted the stay. After they had lifted
the stay, all of a sudden there was still another order prohibiting the execution. It was done by Harry Pregerson, who lives
down in southern California. Then they'd say, "Who is he? Is he on this court?" I'm watching it on television at home at this
time, and it was really a mess. The Supreme Court, at that time, issued its final order. Oh, pursuant to Harry Pregerson's
order, they took him out of the cell, I mean out of the [death] chamber. They took him out of the chamber.
Hicke
And took him back to his—
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Poole
Back to the holding cell. When the Supreme Court got that, I would like to have heard what they really said back there in
Washington. They said, The order is vacated and the Ninth Circuit will make no more orders in this case without permission
of the Supreme Court. This newsman asked me, "What do you think about them?" I said, "I wouldn't give a damn what the hell
they said. If I thought it was a proper order, I'd make it whether they liked it or not. What are they going to do?" Anyhow,
he didn't print that. [Laughs]
Hicke
And you're still here.
Poole
I'm still here, yes. Some of these cases are terrible cases. Some of the things that are done are awful cases.
Hicke
But—I think we talked about this before—you don't believe it's a deterrent?
Poole
Well, the people who don't commit crimes are deterred. But the people who commit the crimes are not. Yesterday morning, somewhere
down there near Fresno, wasn't it, somebody went into a tavern and shot and killed seven people.
Hicke
It didn't deter him, did it?
Poole
Seven people. I must tell you that there is an exception in my thinking about some kinds of cases. A person who kills a child,
a person who tortures or otherwise subjects to excruciating pain another person who has been rendered helpless—I close my
eyes and turn my back on those. I simply can't stand it. I can't adopt some rational way of accepting this as not being a
forfeiture of the right to exist. We don't have a very high order of qualifications in this life, but it's higher than that.
Hicke
That sort of disqualifies someone from being a human, right?
Poole
Yes. For example, someone said, "How do you feel about this woman who killed the person who was charged with molesting her
young son?" Well, I figured that she was enjoying it. I figure she walked into that courtroom, deciding, and she was accepting
all the bows.
Hicke
Are the state and the courts in agreement in the trend toward more capital punishment?
Poole
Oh, I think so. I think for the most part the states are. The judges are in division. There are some judges who, I suppose,
logically are saying that devising punishment is the function of the state, not of the federal courts. We may think that it
is
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uncivilized for the state deliberately to take the life of a human being. But we have no right to attempt by judicial decree
to deprive the state of the function of decreeing what is punishment for punishable conduct. It's an interesting philosophical
question, just as the whole idea of the death penalty is a philosophical question. We have stopped, for the most part, inflicting
certain punishments for certain kinds of offenses. We don't do it for somebody who steals a tremendous amount of money, although
I think in their heart of hearts, a lot of folks would think that would be where you'd start.
At one time, in most of the states, they had some form of death punishment. Some of them had hanging, some had shooting. It
wasn't until lately that they devised these poison needles for them. We had some argument in our court on one matter, and
the point of the debate was who has a right to say that the death penalty by hanging or shooting or by the needle is unconstitutional,
in that it amounts to cruel and unusual punishment. My response was, "I suppose if all the states in the United States abolished
hanging for the reasons that are ascribed to the arguments to get rid of the hanging—because it often goes wrong and there
is a tremendous amount of suffering—if almost all of the states have abolished that, then a state that still has it would
seem to be outside the mainstream. If it's outside the mainstream, then we look at it and see whether is it cruel and is it
unusual." That second component, the unusual nature, would be determined by whether the states themselves have said "no more
of this for us." I would assume that it's like other things that we've gradually abandoned. We don't cut off their hands now
when they steal or pickpocket. It's a difficult question to answer because it makes you go back to the Constitution and say,
"What does this mean?" Is this sort of like a promise to the states, that if you believe that a certain form of punishment
is the appropriate one and everybody else believes something else, you have to change? Who's going to make that stick? I don't
know.
Hicke
Does it have to be both cruel and unusual?
Poole
Yes. That's the language that the Constitution uses: cruel and unusual. I think it's intended to keep from pulling your neck
bit by bit and that sort of thing. So that's why many of the states have now adopted the alternative that you may elect the
needle. The way the legislatures have passed the laws, they've made the primary punishment to be a lethal gas or electrocution,
but at the option of the prisoner, he can get the needle. I suspect that the reason they do it that way is because they want
to keep the punishment certain. That is, you may go off on an excursion and let the state finish your life by the poison needle
if you want to do it that way, but if you don't do it that way, then you have the
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hanging or the electrocution or the poison gas. They want to make the prisoner participate in his selection of the appropriate
penalty. That's what prisoners are now arguing.
Hicke
How far are they going to get with that?
Poole
It's sort of like everyone ought to have some right to have a say about how he exits this world.
Hicke
Yes, you could look at it two ways. You have the freedom to choose.
Poole
Freedom of choice, that's right. Those cases, for many judges, are very difficult. I can't remember that there's been a case
on our court where a judge has recused herself or himself from sitting because of internal scruples about capital punishment.
Most of the judges, I think, feel the way I do, that it's a distasteful thing to have to do, but that's why I'm here. I have
only recused myself from any kind of cases where I felt that my relationship with a party was such that either I could not
be unbiased or that I could not deny the appearance of partisanship.
We had one; you may have read that the other day this court filed its opinion against Judge [Robert] Aguilar. I haven't really
read it carefully yet. It's got a whole lot of confusion in it. In any event, I recused from sitting on that case, and I did
so because Aguilar was appointed to the district court just after I had been appointed by President [Jimmy] Carter to this
court. I had been on the district court before. So he came, he was confirmed, and I still had not moved out of the Federal
Building. I would see him very frequently in our luncheon room there. We'd chat and talk about things. I said, I personally
think he's a vain person. That's what got him into the situation that he's in. I had no difficulty sitting on any opinion
that he wrote that was up before me for review, but I just find it hard to say that when you sit at lunch or at meetings countless
times and joke with a guy, that you don't have some kind of a slant.
I did the same thing with Judge Harry Claiborne of Nevada, who was indicted for income tax violation. I had sat on cases with
him, and I found him quite a jocular fellow. I notified the court that I would not sit on his case. I think there was probably
another reason as well that I had, which was that I had some preformed opinions about some of the things that had been done
by the government. I didn't want to have my old memories of what I did, of how I thought you were supposed to do a prosecution—I
didn't want to have that mixed up with this thing, so let me just stay off that case. So I did.
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Hicke
Do you think we've covered the death penalty? Is there anything else?
Poole
I don't know what its future is. My guess is that they will devise swifter and more certain ways of extinguishing people as
time goes by.
Hicke
Is this what we call progress?
Poole
Well, there'll be an instant before the punishment is administered and then oblivion. Just put them out of the world. There's
a human being that doesn't exist anymore.