Living With Death: How Judges Experience Capital Cases

By Marco Poggio | March 22, 2024, 7:00 PM EDT ·

gurney in penitentiary lethal injection chamber

The lethal injection chamber at South Dakota State Penitentiary ahead of Donald Moeller's October 2012 execution for the rape and murder of a nine-year-old girl. After granting a motion from Moeller to abandon any remaining legal challenges to his sentence, U.S. District Judge Lawrence L. Piersol accepted an invitation from Moeller to be present for his execution. (AP Photo/Amber Hunt)

The curtains opened, and Judge Lawrence L. Piersol looked through a window at the man he had allowed to die.

On the evening of Oct. 30, 2012, inside the execution chamber at the South Dakota State Penitentiary in Sioux Falls, Donald E. Moeller, who was convicted for the gruesome 1990 rape and murder of a 9-year-old girl, initially declined to say any last words.

"They're my fan club?" he eventually said, apparently meaning the people on the other side of the glass. Then, a few minutes after the chemicals began flowing through tubes into Moeller's veins, he was pronounced dead.

Moeller didn't want his mother to see his execution — he didn't want her to suffer — but he did ask Judge Piersol to come. It was a sign of the strange bond that formed during habeas corpus proceedings during which Moeller challenged the state's execution method before later abandoning his defense, a move that amounted to a de facto agreement to be put to death. Judge Piersol, who presided over the case in the U.S. District Court for the District of South Dakota, granted Moeller's wish with an order that allowed him to abandon any further legal challenges and paved the way for his execution.

Witnessing that lethal injection was so haunting for Judge Piersol that, as a prolific amateur artist, he felt the need to channel his emotions into the creation of a six-foot-long installation representing the girl "butchered" by Moeller, with two large acrylic and oil paintings recalling the man's execution.

"I was dealing in my own mind with the execution and the fact that I was the last judge that he appeared before," Judge Piersol, who at age 83 still hears cases as a senior judge, told Law360. "Doing the art afterwards was probably my way of working through, you know, watching somebody die."

Before ascending to the federal bench, Judge Piersol, who served first as an infantry officer and then as a judge advocate in the U.S. Army, knew that one day he could be called to decide a case where the life of a person would be at stake. Despite his own personal reservations about capital punishment, he said he made his peace with the idea because he believed in his role as a public servant.

"I don't believe in the death penalty. But that's not the point. I have to call these cases as they are," he said.

But, Judge Piersol added, those involving the death penalty are the "worst" cases judges get, because of the moral burden that comes with them.

"Think of the responsibility that you have: a human life. And you're the last call," he said.

Law360 recently spoke to multiple judges with experience in capital practice about what it means to handle death penalty cases, which are legally complex and emotionally taxing. Whatever their beliefs on the morality, effectiveness and fairness of the death penalty, the judges said they must put those feelings aside while they're on the bench.

"I have to follow the law and I have to do my job," said Gary B. Randall, a longtime state judge in Nebraska who sentenced three defendants to death throughout his career before retiring in 2020.

But many judges say they aren't always prepared to handle cases involving capital punishment, and most of them learned to do it with little to no instruction.

"You have to learn on the job. You take the cases as they come and you do your best," Michael A. Wolff, the dean emeritus of Saint Louis University School of Law and a former chief justice of the Supreme Court of Missouri, told Law360.

Judges have the option to attend the National Judicial College, a nonprofit based at the University of Nevada, Reno that provides training for judges. In January, the college received a $1 million grant from the U.S. Department of Justice's Bureau of Justice Assistance to prepare state judges to handle death penalty cases.

According to a statement by the college, the grant will fund two years' worth of programming that includes quarterly webinars, a six-week online course, a bench practice book, a clearinghouse of model orders, and eight podcasts.

Each phase of a death penalty trial presents judges with unique challenges, from impaneling a jury to providing instructions before a verdict. Judges must weed out jurors who don't want to be involved with a case involving a possible death sentence. They must show extreme attention to detail when considering aggravating or mitigating factors, including severe mental illness or disability, that could make the difference in whether a defendant lands on death row. And because capital cases are almost always high-profile, judges must also learn to manage the media.

In addition to the technical and legal issues, presiding over death penalty cases carries a heavy mental and emotional burden that judges can struggle to deal with. It's something that the National Judicial College is also looking to address as part of its new programming lineup, which will offer on-site courses in four locations around the country on a broad range of topics, including "judicial wellness and vicarious trauma," according to a statement announcing the grant.

An Emotional Toll

The most visceral aspects of trying a capital case — including the psychological burden of oftentimes gory evidence, the desire for closure on the part of victims' families, and the stress of facing a defendant whose life hangs in the balance — can hardly be taught.

"There's all sorts of intellectual knowledge that we can give to a judge," said Randall, who has served as a faculty member for the National Judicial College. "But there's nothing that would ever emotionally prepare a judge for making a decision about the death penalty."

Randall said that, over the course of his 23-year judicial career, discussions about the death penalty came up regularly in his personal life. From time to time, as cases he presided over made the news, his children, who supported his political campaign for the state bench, challenged him about his role in enforcing the death penalty.

"'Dad, how can you do that?'" he recalled his children saying. "My answer was pretty simple: I have to."

Randall told Law360 that his three capital trials — the most recent one in 2018 involving Anthony Garcia, who was convicted for murdering four people, including an 11-year-old boy, and who remains on death row — have at times caused him to lose sleep.

"It could take over a large part of your life," he said. "Your family is around to support you, but sometimes you just have to individually address things in order to process them and work through."

Nancy Gertner, a former Massachusetts federal judge who now teaches at Harvard Law School, said that judges sometimes develop "dual consciousness" when forced to confront criminal justice policies, including capital punishment, that clash with their ideological and political beliefs.

Gertner told Law360 she was an anti-death penalty activist when she went before the Senate Judiciary Committee as part of her confirmation hearings in 1994. Asked about her stance on capital punishment, then-Judge Gertner said that she would ensure a fair trial.

Years later, that scenario became reality. Gertner presided over a case involving five people who were indicted following a shooting at a parade. Two of those defendants, Branden Morris and Darryl Green, ​​were charged with murder in aid of racketeering for shooting a member of a rival gang to death.

"I had sentenced individuals for doing exactly the same thing to a term of years. And now suddenly the government wanted the death penalty," Gertner said.

Neither defendant was ultimately sentenced to death, but the prospect of having to impose the death penalty had an effect on her, she said.

The Weight of Heinous Crimes

Hesitations about the death penalty sometimes fade away when judges are called to try cases involving vile, gruesome murders.

Even a self-described liberal like Randall said that his perception of capital punishment as a whole changed from the time he first became a lawyer in 1974, in part because of the reprehensible nature of the crimes involved in the cases he went on to hear after taking the bench.

"I don't think I really believed in the death penalty," he said. "However, as a judge, I developed a different opinion of it because I saw how heinous some of the acts that were [committed] by individual defendants."

On the other hand, Ronald Reinstein, a retired judge in Arizona, said that he was never opposed to the death penalty, even in principle.

Reinstein, who previously served as a prosecutor in charge of the criminal trial bureau and sex crimes unit at the district attorney's office in Maricopa County — home to Phoenix — imposed the sentence in nine out of 15 capital cases he heard during his 22-year tenure, and says he has no regrets.

"I never had problems getting to sleep," said Reinstein, who now serves as a consultant for the Arizona Supreme Court, chairing committees on capital punishment and state forensic science. "One thing I've learned is, you know, some people are just not good people."

"When you're dealing with a case that involves torture, murder, or murder for hire, or rape murder, as opposed to say, somebody robbing a convenience store and shooting the clerk and then somehow that gets filed as a death penalty case — those kinds of cases are actually easier," he said. "I don't want to sound crass."

The Moeller case was so ghastly, it even made a deep impression on Judge Piersol, who said he generally opposes the death penalty "under any circumstances."

On May 8, 1990, Moeller kidnapped 9-year-old Becky O'Connell near a Sioux Falls convenience store, where she'd gone to buy sugar to make lemonade. After driving her to a wooded area along the banks of the Big Sioux River, he raped her and stabbed her to death. The girl's naked body was found the next day, her throat slashed. Semen found on her body matched a DNA sample taken from Moeller, who was arrested eights months later in Tacoma, Washington. He was found guilty twice — the South Dakota Supreme Court reversed an initial conviction in 1996 after concluding that he didn't have a fair trial — and he was sentenced to die by lethal injection.

In early October 2012, Moeller, who until then had always maintained his innocence, appeared before Judge Piersol for an evidentiary hearing after he asked to put an end to a lawsuit his public defenders had filed to challenge South Dakota's lethal injection protocol.

"Do you want to take any more legal action to try to prevent your execution?" Judge Piersol asked, according to a transcript of the hearing.

"No, sir, I do not."

"Why not?"

"I killed the little girl. It is just that the punishment be concluded. I believe that," Moeller said. "The law has spoken. I killed. I deserve to be killed."

Moeller and the judge continued their exchange, talking about TV and radio shows and Moeller's daily prison routines, and then Judge Piersol questioned him again about his intentions: "I want to ask you again, even though I've already asked you. Tell me, why is it that you want to be executed?

"Your Honor, that's a tricky question, the way you put it there. I don't want to be executed. I don't want to die. I want to pay what I owe. I believe the death penalty is just in this case," Moeller said. "I've denied it for 20 years. The last couple years I have accepted responsibility."

He added: "Judge, I know what's happening. I am competent. I don't want this to drag through the courts anymore, because there's no reason to do it. It's been judged. Let's do it."

Less than a week later, Judge Piersol granted Moeller's voluntary dismissal of the legal challenge, and he went on to accept Moeller's invitation to be present at his execution.

two women at candlelight vigil

Two women participate in a candlelight vigil outside of South Dakota State Penitentiary on the night of Donald Moeller's October 2012 execution. (AP Photo/Amber Hunt)

More than a decade after Moeller's lethal injection, and with the lingering thought of him dying on the gurney, Judge Piersol said he has no remorse for greenlighting the execution.

"He was guilty, he received a fair trial," he said. "I don't have any regrets."

When sentencing defendants or hearing their legal challenges, judges must consider the families of the victims and the public at large. When it comes to capital punishment, the U.S. is an outlier amid democratic countries, Judge Piersol said.

"You might wonder why that is. Is there something of a frontier [mentality] ... or something in our ethos?" he said. "It's easy for the public to say, 'Well, string him up.' We used to do that with ropes."

Perceptions and Misperceptions

In America, capital punishment has come to be reserved for the most serious cases, mainly those involving murder. A long list of aggravating factors, which vary widely from state to state and can involve aspects such as the heinous nature of a crime, whom the victim is, and whether there was any premeditated intent, distinguish ordinary murders from those for which the death penalty becomes a possibility.

In 2002, the U.S. Supreme Court ruled in Ring v. Arizona that any aggravating factors must be decided by juries, not, as it had been previously, by individual judges. States have different sentencing schemes for the formal imposition of the death penalty, and they set their own rules for situations in which juries are deadlocked.

Judge Catherine Torres-Stahl, of the 175th District Court of Texas, which covers parts of San Antonio, said members of the public often wrongly assume that judges still determine whether a defendant's crime warrants the death penalty.

"A lot of people don't understand that we don't assess the death penalty," she said. "Our job is to sign the death warrant so that the execution actually happens."

Judges presiding over capital cases must also contend with a fictional — and frequently inaccurate — image of the court system portrayed in movies and TV shows, which complicates the role of jurists to impanel and instruct jurors.

"I literally, during my voir dires, have to talk about shows like 'Law & Order' and 'CSI,'" Judge Torres-Stahl said. "We're fighting against that information, because that is the expectation that jurors have when they come to our courtroom."

Because the Supreme Court has held that "death is different" than other forms of punishment and requires higher scrutiny to avoid violating the Eighth Amendment's prohibition against cruel and unusual punishment, judges are reluctant to push capital cases through trial quickly. That can create frustration for family members of victims and people who support the death penalty.

"One of the issues that the public doesn't understand is why these cases take so long," Reinstein said. "They seemingly never end."

The shift to jury-approved death sentences ushered in by the Ring ruling, along with increased sophistication by defense attorneys in putting on mitigation evidence, has further extended the time needed to bring a death penalty case to completion, he said.

The public is also often unaware that a capital case begins with a decision by prosecutors over whether to seek the death penalty in a particular case. Judge Torres-Stahl noted that, compared to the past, fewer prosecutors seek the death sentence for defendants, in part because it's harder to find jurors who are willing to approve it, a trend that reflects a faltering support for capital punishment nationwide. But it's also because death penalty litigation is extremely expensive and tends to drag on for years or decades, she said.

According to a recent Gallup poll, 53% of Americans surveyed last year said they supported the death penalty for people convicted of murder, down from 80% in 1994.

And a separate Gallup poll published in November showed that, for the first time, more Americans think the death penalty is carried out unfairly than fairly. That perception is compounded by a deeply uneven national landscape surrounding the death penalty; a report by the Death Penalty Information Center in December found that all 24 executions in 2023 were concentrated in five states: Alabama, Florida, Missouri, Oklahoma and Texas. Among the states that allow capital punishment, some, like Texas, carry out death sentences regularly, while others, like California, have not executed anyone in years.

But inequities in the use of the death penalty are seen in other ways too, most notably the socio-economic status, mental health condition and sometimes race of the condemned, all of which increase mistrust in capital punishment as an institution.

Moreover, many exonerations in recent years have amplified those perceptions. One such case involved Lamar Johnson, a Missouri man who was exonerated last year after spending nearly three decades in prison for a 1994 murder he didn't commit.

Wolff, who voted to affirm several death sentences during his tenure in Missouri, said that many errors or instances of misconduct committed in the course of a prosecution — overlooked DNA evidence, coerced interrogations or recantations by witnesses — do not necessarily come to the attention of appellate courts, and he thinks that several people have been put to death despite those errors.

"This is a very human process. It's fallible," he said. "That causes me to have great skepticism about the effectiveness of the death penalty."

Overall, judges say they often need to contend with the public perception that the system is unfair.

"I wish the law did not allow the death penalty," Judge Piersol said. "If it's going to be applied, it should be applied evenly — and it isn't — so it shouldn't be applied at all."

He added, "Do you know of any wealthy people being executed lately?"

--Editing by Adam LoBelia.

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