Criminal Liability for Judicial Murder in Texas

I’ve been meaning to write this piece for a while, either as a blog post or as the framework for a piece of speculative legal fiction. Cindy Henley’s and Jeff Gamso’s comments to my post about the Cameron Todd Willingham case prompted me to do it now, rather than later . . . .

If you think I have the law wrong and you can back it up with cites, let me know. But if you are a death penalty fan and wish to argue that the death penalty is morally justified, go do so elsewhere. This post is not about what Texas law should say, but about what it does say, which is:

A person commits murder if he intentionally or knowingly causes the death of an individual.

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

So when the executioner pulled the lever that started the flow of chemicals that killed Cameron Todd Willingham, he committed murder.
What about the guards that led Willingham to the death chamber? This is Texas’s law of parties:

A person is criminally responsible for an offense committed by the conduct of another if, acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; or if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

So everyone who, intending that Mr. Willingham die, caused or aided the executioner to kill Mr. Willingham—from the guy who stuck the needle in, to the judge who signed the death warrant, to the jurors who signed the verdict, to the prosecutor who argued for death—committed murder as well, as far as the law is concerned.

The executioner’s actions were arguably justified, and he could not be held criminally responsible, because he had a statutory duty to pull the lever:

The use of deadly force is justified if the actor reasonably believes the deadly force is specifically required by statute.

But if one person induces another to commit a crime, he can’t rely on the other’s justification. So the other players, if they are to be legally justified in their roles in causing Mr. Willingham’s death, must find their own legal justification.

The other law enforcement officers who took charge of Mr. Willingham after he was sentenced to death may well have had a statutory duty to do what they did in support of his killing.

But as to those whose intentional actions led to the death sentence, there is no legal justification. Execution is never specifically required by statute; the jury always has the option of a life sentence. In fact, a life sentence is the default outcome of a capital murder sentencing hearing.

As for other possible legal justifications, deadly force may only be used to protect persons or property when the actor reasonably believes the force is immediately necessary to protect the actor or his property.

So there is no legal justification defense impeding the prosecution of death-penalty jurors for murder.

But surely the State can’t cause jurors to return a verdict of death, and then prosecute them for doing what it asked. What about entrapment? Well, even if the prosecutor is a “law enforcement agent” (possibly), the jurors were death-qualified before they were chosen; that is, they displayed a predisposition to sentence people to death; the State just gave them an opportunity to do so.

What about the prosecutor? The prosecutor also acted as a party to a murder for which there was no legal justification. Like the jurors, the prosecutor is never statutorily required to seek death. And “just doing my job” is no kind of justification. So the prosecutor of a death penalty case is in line for prosecution for murder as well, as is any witness who takes the stand intending to help the prosecutor get a death verdict.

None of the above depends on the person’s execution having been wrongful. Legally, it’s as much murder to kill the worst of the worst as it is to kill an innocent man. And there’s no statute of limitations, so forty years from now, if standards of decency evolve so that the death penalty is seen as a barbaric relic of the past, everyone who has participated in a death penalty case could legally be prosecuted for murder.

So what about the wrongfully convicted? Does the execution of a person after a flawed trial change the criminal liability?

Only to broaden it. There are people who participate in the trial of a capital case without trying to get the accused killed. For example, defense counsel and, it is to be hoped, the judge and witnesses.

A person commits manslaughter if he recklessly causes the death of an individual.

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

A person commits an offense of criminally negligent homicide if he causes the death of an individual by criminal negligence.

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

The negligent or reckless conduct of anyone involved in a capital case might result in the accused’s death. Where the death sentence results from a flawed proceeding—where, for example, false forensic and snitch testimony are presented—the people who made mistakes might be on the hook for manslaughter (for example, Douglas Fogg, who gave incompetent forensic testimony, and who, even if he didn’t intend it, must have been aware that Mr. Willingham might die as a result; or, in another case, the lawyer who slept through parts of his client’s death penalty trial) or for criminally negligent homicide (for example, Johnny Webb, who might not have had the mental capacity either to intend that Willingham die or to be aware of the substantial risk that he would die as a result of Webb’s testimony).

Webb is off the hook—the statute of limitations for criminally negligent homicide is three years. But the manslaughter for which Douglas Fogg could be prosecuted has no statute of limitations.

Realize that we’re still not talking about executed innocents. While I’ve used some of the players from the Willingham case as examples, none of the law I’ve described relies on the dead guy being factually innocent. Nor does it depend on the players actually cheating.

Factual innocence and prosecutorial misconduct don’t change the law that applies, but they up the ante considerably. Still it ever happen that John Jackson is prosecuted for the murder, and Douglas Fogg for the manslaughter, of Cameron Todd Willingham? Probably not. Is it legally possible? Sure.

How about you: would you participate in a death penalty trial, knowing that, for the rest of your life, with the turn of a tide of public opinion you could be prosecuted for making what you believed to be the right decision? You may be betting your life.

0 responses to “Criminal Liability for Judicial Murder in Texas”

  1. Mark,

    I’m not familiar enough with state law, but is there no equivalent to the federal doctrines of judicial or sovereign immunity under Texas state law?


  2. Thank you.

    I’ve been making essentially this argument for years in Ohio – where it’s arguably stronger. Here, the killers are guilty of Aggravated Murder, the first statutory form of which is, “No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.” Murder, “No person shall purposely take the life of another,” is a lesser offense. Aggravated murder accompanied by a statutory death specification (none is applicable here) is our capital offense.

    Unlike Texas, we don’t have a statutory exception for those obeying the law or acting under orders.

  3. Uh, Mark, ever hear of Penal Code 8.02 or 8.03? What about CCP 43.15, regarding the Warrant of Execution? A warrant is not a request, suggestion, or invitation; it is a comand. The person or persons it is addressed to (often “ANY PEACE OFFICER” in the case of arrest and search warrants) are commanded to obey it. Just as jurors take an oath to render a true verdict according to the law and the evidence given to them and are told to follow the court’s instructions. Just as prosecutors take an oath to see that justice is done. See also Penal Code 12.01 and 12.31, codifying that a person “shall be punished in accordance with this chapter and the Code of Criminal Procedure,” and, in capital cases “shall be punished…by death.”

    Do we really need to pass a law that says you have to obey the law? By your reasoning, the same set of potential defendants would be responsible as parties for false imprisonment, kidnapping, and any other number of possible offenses in non-capital cases. This has to be one of the sillier arguments I’ve ever seen you make.

    The deeper, underlying issue seems to be that you seem to expect everyone — from prosecutors and law enforcement officers, to jurors and judges — to be omnisicien, and to have the benefit of not only hindsight but also improved scientific techniques. In Dillingham’s case, what would you have had John Jackson do differently, exactly? He is a lawyer, not a forensic investigator. He was told by a respected arson investigator that the fire was intentionally set. Other pieces of circumstantial evidence supported that conclusion, including a confession to a jailhouse snitch which only seemed to corroborate the rest of the evidence. Or maybe you are just upset because Jackson does not seem sorry because an article in The New Yorker calls the conviction into question.

    Whatever you choose to believe about Dillingham’s case, it is apparent that everyone involved — the prosecutor, the judges, the jurors, and probably even Vasquez — came to the best conclusions they could based on the information they had at the time. If you want to be angry at the system, it sounds like you might have reason to be. But the human beings who functioned within that system only did their jobs. As individuals they are not to blame.

    • Mike, I’m going to have to call that a “how it should be” response with a thin veneer of irrelevant cites.

      8.02 = mistake of fact. The jury sentencing someone to death need not make any mistake of fact.

      8.02 = mistake of law. Generally not a defense. Possibly a defense if the DA is giving the jury a written opinion that sentencing someone to death is somehow not murder, and if the jurors reasonably rely on their coparty’s opinion.

      43.15 covers the executioner, with his duty to pull the lever. But it doesn’t protect anyone before that warrant is signed.

      And you left off the half of 12.31 that says that death is never required by law.

      I guess my prefatory sentence should have said something about actually making a cogent connection between the cite and the argument.

      By the way, have we met? I’m the guy who’s always arguing that the problem with the system is that we aren’t and can’t be omniscient; that’s my objection to the death penalty (as well as all other retributive punishment), and a recurring theme of this blog.

      I don’t have any reason to think that Jackson knew his case was a lie. Jackson’s belief in his case may be accounted for by confirmation bias: once we make up our minds, all of the evidence that helps confirm our conclusions is credible, and all of the credible evidence helps confirm our conclusions.

      If Jackson didn’t throw in the discredited bit about the refrigerator or feign wide-eyed innocence about Webb’s motivation for lying, I might let him slide. But he’s lying, if not to us then to himself.

      We all should be aware of our confirmation bias. That’s a good reason for even the state to red-team a case, as well as a reason for blind showups.

  4. I thought judicial and prosecutorial immunity was absolute, both in criminal and civil terms, so long as the officer is acting within their duty role. If that is so, those two are off the hook.

    The sovereign has the power to kill, it just happens in the US we have constrained that to after due process of law. We have no single sovereign, instead delegating the power to various officials for specific tasks, and to panels of citizens in the instance of juries. So the judge who signs the warrant, acting as the embodiment of sovereign power is carrying out a lawful task. As were the jurors when rendering both the guilty verdict and death sentence.

    As for the rest, examining the but for chain of proximate cause and last best chance would seem to absolve any party that did not act with bad faith. And even proving such bad faith would be extremely difficult. The fire investigator actually (still) believes his erroneous testimony. The snitch is likely the only one with any such culpability, but again, proving it would be incredibly difficult.

    • Again, this comment is more wishes than law. C’mon, people, bring me some actual law and show me how it applies! I’m willing to be convinced.

      I’m no sovereign immunity expert, but I have searched, and I haven’t found a case applying sovereign or official immunity in a criminal case in Texas, so I’m 95% sure you’re wrong about immunity from criminal prosecution, Soronel.

      Bad faith isn’t an element of either manslaughter or crim neg hom. If you’re doing something that might cause someone’s death if done wrong, you have a duty to do it right.

      It may well be that negligence or recklessness would be hard to prove. But that (as well as the rest of the quibbles I’ve seen so far) would at best give rise to a jury issue.

      You might beat the rap, but you can’t beat the ride.

  5. I’m not sure I understand the purpose of this post, so perhaps this is way off the mark, but does similar reasoning apply to other punishments? If the judge sends the defendant to jail, is he complicit in a kidnapping? If he imposes a fine, is it theft? Or do those have exceptions carved out of the law for them?

  6. Wouldn’t the same logic mean that the defense attorney who represented the convicted (especially in the case of a factually innocent defendant) and failed to get an acquital was equally guilty?

    Your inability to raise a reasonable doubt is the direct cause of the conviction, and the result is your client’s death.

    So by your logic, the defense attorney should be next in line for the needle, shouldn’t he?

  7. Please pardon me for violating your policy against anonymous responses. I know you probably won’t want this comment to appear on your site but I wanted to convey to you my concern with taking this criminal liability idea to its ultimate absurd conclusion:

    Governors, District Attorneys, and Judges are all politicians who campaign, in part, on their willingness (or unwillingness) to seek the death penalty. So how about criminal liability for any campaign worker, donor, or heck even voter that supports any of these candidates? While these actions lack intent with regard to a particular individual, so does randomly discharging a firearm into a crowded room.

  8. As you previously mentioned, since 43.15 covers the executioner, murder is not committed by the executioner. Justifiable homicide (which is not a crime) is committed. Thus the law of parties cannot apply to the judges, jury, prosecutors, police, or defense attorneys since no crime was committed by the executioner.

    • You may think that this is how it should be, but that isn’t how it is.

      I haven’t found any authority for the proposition that if X causes Y to commit a crime that Y is justified in committing but X is not, X is not liable.

      To concretize: X, intending that Y kill Z, tells Y untruthfully that Z has a gun and is looking for Y. Y kills Z. Assuming that Y’s killing of Z is justified, that defense does not protect X.

      Look again at the snippet of the Rule of Parties quoted in the post.

  9. I think you’ve posed an interesting challenge, and one that is difficult to solve. However, I don’t think the difficulty is due to the correctness of your premises. In effect, you have set out what you believe to be a plain text theory of criminal liability for a prosecution that no one would ever bring. Then you’ve challenged us to provide a certain defense based on positive law.

    I’ll bite. But, the defense has to be sort of speculative, because the sheer “unlikelihood” involved means that we are unlikely to find decent precedent.

    (1) Article 5, Section 5 of the state constitution presumes that capital punishment is available to the state, in at least some cases. If we accept your interpretations of the statutes and rules cited, that would render the relevant language of the constitution a nullity (as it would never be the case that there would be a lawful execution).

    These are reasons to reject your interpretation, under the statutory interpretation doctrine of constitutional avoidance.

    (1.5) Applying another principle of statutory interpretation, we should not interpret a criminal statute in a way that suggests the legislature intended to prohibit actions it explicitly authorized.

    (2) I don’t think you’re giving immunity and related doctrines a fair hearing. According to wikipedia, at least, sovereign immunity extended to criminal liability at common law, too. The federal and international law analog here may be the “act of state” doctrine, or it may be immunity.

    But you seem to implicitly accept hat the actors could not be sued in tort because of sovereign immunity. Why not? because in that instance they ARE the state, doing its own business according to is own rules. They can’t be sued even in their individual capacities because they are acting as the state.

    But where else do we permit criminal liability to attach where we are jurisdictionally barred from imposing civil liability?

    • Thanks, Matthew.

      Of course it’s speculative. That the State of Texas will exist in, say, 60 years is speculative. That kind of time can change everything.

      I would make your first argument with a straight face.

      Wikipedia is not legal authority.

      We’ve prosecuted government agents before for crimes that they thought were part of their jobs. I only implicitly accept that civil liability is barred by sovereign immunity because that’s a tort concept and, being a criminal defense lawyer, I haven’t had cause to study it much. Is sovereign immunity a jurisdictional bar to civil suit? I don’t even know. (I don’t think so, because if it were then the inquiry would cease, and courts would never be able to find exceptions under the TTCA.)

      Not all the actors in a death penalty case ARE the state. The defense lawyers are not; nor are the witnesses. (Sovereign immunity is illogical in a republic, where the People are the State, but that’s for another day.) In any case, criminal liability where civil liability is barred makes perfect sense in the historical context of sovereign immunity: the king might reserve the right to punish his princes while forbidding the people from taking them to court.

      • We’ve prosecuted government agents for crimes that they thought were part of their jobs, but (at least with respect to “rightful” or non-wrongful executions), the state actors (jurors, prosecutors, judge) are actually doing their job. You pointed out that the law never requires execution, but that is not to say it never authorizes it. The law has granted them the authority to make either choice, A or B, guilty or innocent, clemency or no clemency, death or life… and so I think that would distinguish this case from those where the actor mistakenly believed he was just doing his job.

        If you can show misconduct, (as was at least arguably the case with arson investigators) then I think the question may be different.

        Isn’t that one of the problems with executions, anyway? That even dealing with well-meaning, “liberal,” hardworking government agents who “follow the rules,” unintentional mistakes still slip through? I think that’s a valid reason to categorically oppose executions, but I do not think one could lawfully hold such people criminally responsible.

  10. (3) You responded to Soronel’s bad faith argument, but what about his proximate cause argument? I don’t have any broad empirical data, but looking at the upcoming scheduled executions, there may be a 15 or more year delay wth multiple appeals and decisionmakers intervening.

    (4) To raise a “jury question” on mens rea, you need access to the evidence. But much of the necessary evidence would be privileged. I’m not sure the state can even survive an acquittal motion without some means to pierce the privielge.

    • 3) I didn’t see proximate cause as a serious argument. The risk that the executioner will push the button is clearly foreseeable when the witness gets his science wrong.

      4) What privilege? The state proves recklessness and criminal negligence regularly without any special means to pierce privileges.

      • 3) I actually bothered to look up some law, as previously requested:

        Texas Penal Code sec. 6.04:

        (a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

        (b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:

        (1) a different offense was committed; or

        (2) a different person or property was injured, harmed, or otherwise affected.

        Given that is the law, I renew my argument that proximate cause would limit how far ‘back’ in the process you could go (beyond, e.g., the executioner) and still establish criminal responsibility for “causing” the murder.

        (4) I was mostly thinking about jurors, judges, prosecutors, the governor (who declined clemency) etc. I don’t know how you prove what they had in mind unless you pierce the veil of various privileges. I don’t know that verdict form is enough to create a jury question on intent.

        • “But for”? It’s been a long time since I took Torts, but isn’t that cause-in-fact rather than proximate cause?

          If a juror could sentence a guy to death without “intending” for him to die, that would be a serious flaw in the system.

          Given that everyone involved knows that the jury’s verdict will, unless something highly unusual intervenes, result in the defendant’s death, I think we’ve got cause-in-fact and intent sewn up.

  11. But thats precisely it – jurors dont sentence someone to death per say. They answer the two special issues. You can actually argue that the jurors dont intend for him but were simply answers the special issues based on the facts.

    You made it clear earlier that this discussion is about what Texas law says, not what it should say.

    I think 37.071 pretty much excuses the judges and the jurors as it specifically authorizes them by law to sentence a defendant to death.

    Courts have always held that it solely the prosecutor’s discretion to seek death.

    I dont think, whether there is a change in public opinion or not in 80 years (or ever) that any judge, juror, prosecutor, or defense lawyer could be held criminally responsible for the execution of an inmate.

    • You could argue that Mr. Jones, when he answered the questions “yes” and “no”, didn’t intend for the accused to die. I think it’s a specious arguent. You’d have a chance to make it in closing argument. The question was not whether people could be convicted, but whether they could be prosecuted.

      37.071 authorizes a death sentence (and requires the judge to sentence the defendant to death, so he’s probably okay), but while statutory requirement justifies the use of deadly force, statutory authorization does not, so that doesn’t help the jury or the prosecutor or the negligent defense lawyer. See PC 9.21.

  12. Well, I am not a lawyer or law clerk, I do have a simple question for you though. I have always been taught that murder is the unlawful (unjustified) killing that is both willful and premeditated, killing of someone. Obviously if someone murders another individual, has been found guilty by the preponderence of evidence and a jury of his/her peers, upheld by the judicial system, upheld after numerous appeals over the span of a decade or more, final appeal to the SCOTUS (denied) and is then executed that execution would not be unjustified, but justified under our legal system over hundreds of years.

    I will readily admit that the executioner has committed a homicide (the act of a human killing another human) , but that then would be a justifiable homicide. Correct?

    • Mike, I don’t think I can answer your simple question any more clearly or simply than I did in the original post where I specifically address the excutioner’s justification.

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