Lawyers for condemned inmates sometimes take the view that we are litigating for the anthropologists, the sociologists, and the historians, in addition to litigating for the courts. This perspective helps to sustain one emotionally when the chances of success are small. Even though the inmate loses in the courts and the execution occurs, the litigation has still made a record for the future. Taken as a whole, these cases form a historical corpus of information about whom the state is killing and under what circumstances. And that corpus will survive.
Making a record – or setting the record straight – is one task of this article as well. The article tells my version of a story that you probably think you know already: the history of Theodore Robert Bundy’s efforts to ward off the Florida executioner. I want to record my thoughts while the memories are still fresh in my mind. This article’s principal source is my memory, supplemented where possible by public documents and secondary materials.
I write reluctantly. Too much has already been said about Theodore (“Ted,” to the media) Bundy, the serial sexual murderer suspected of raping and then killing dozens of young women during the 1970s. The cottage industry of commentary on Bundy has generated six nonfiction books (with at least one more reportedly in progress), a fiction book, and countless in-depth magazine and newspaper articles, as well as a television mini-series (starring Mark Harmon as Bundy), a dance drama, and media preoccupation at times comparable to coverage of the NASA space exploration program. A psychiatrist wrote in September 1990, a year and a half after Bundy was executed, that “[d]uring the last annual meeting of the American Academy of Psychiatry and the Law, a panel on the topic of Ted Bundy clearly captured the most attention. An extra loudspeaker was hauled into the hotel corridor so that folks could listen to the proceedings.” Robert Martinez, the Florida governor who signed Bundy’s final death warrant, used Bundy in his unsuccessful 1990 re-election campaign.”
This text was written because the current record needs correction in at least two important respects. First, there is a widespread public perception that Bundy received what Margaret Jane Radin termed in another context “super due process” (deliberate, painstaking, individualized judicial review of the legality of his convictions and sentences), and that such process identified and corrected any constitutional error in Bundy’s cases. Second, there is a pervasive view that Bundy and his lawyers caused a ten-year “delay” between imposition of sentence in 1979 and execution of sentence in 1989 by manipulating the legal system – in particular by failing to initiate collateral litigation in a timely manner.
Both perceptions are false. Section II of this article, in describing the course of Bundy’s post-conviction litigation, shows that in fact Bundy’s post-conviction cases were shoved through the legal system at a speed that can most charitably be characterized as unseemly, and can most accurately be described as periodically frenzied. Further, all of the much-vaunted “delay” in Bundy’s cases occurred while litigation was pending and proceeding in at least one court. Indeed there was no “delay,” as the word is commonly understood. There was a ten-year temporal gap between imposition and execution of sentence in Bundy’s cases, but that gap was caused by the courts rather than by Bundy or his lawyers. No time was lost by Bundy’s failure to initiate and pursue litigation in a timely fashion.
The disparity between public perception and legal reality in Bundy’s cases raises a separate constellation of intriguing inquiries. The distance between perception and reality can be bridged, and partially explained, by metaphor. Bundy is seen as having received heightened due process, although he actually received minimal post-conviction process of any meaningful kind, because he became a symbol – an emblem for evil and a mirror of the people of the United States’ deepest fears and desires. Section III of this article explores why Bundy’s notoriety warped the legal system’s standards and procedures to an extraordinary extent. The judicial process created a series of “Bundy ex- ceptions” to the rule of law. Despite the outward appearance of hyper due process (a decade of repetitive review; lawyers at trial and beyond), in reality the legal system failed.
This article is as much about cultural perception as it is about legalisticreality. The text certainly is not an attempt to discover the “real” Theodore Bundy or to explain the man or his actions, real or perceived. The historical Bundy is not significant for the purposes of this article. Rather the inquiry focuses on Bundy as a symbol constructed by United States’ culture to represent death row and on the legal system’s response to and interaction with that symbol/litigant. It is a symbol with which we, as members of that culture, ought to be profoundly uncomfortable, for reasons examined in section III.
This project therefore is not a piece of traditional legal scholarship. The historian Barbara Du Bois coined a term that accurately describes this article’s intent: “passionate scholarship.” By passionate scholarship Du Boismeant scholarship that integrates experience with logic, subjectivity with objectivity, substance with process, and passion with responsibility. Such scholarship is overtly animated by the values and experiences of the writer – here, by my experience as an advocate on behalf of condemned inmates and as a “commentator” on capital punishment. Those experiences influence one’s choice of subject matter, one’s willingness to write, and the way in which one conceptualizes the process of research and writing; they so influenced this article.
Avi Frey∞ I. Introduction II. Mitigation A. Supreme Court Law B. Defense Practice III. Free Will vs. Determinism IV. Determinist Mitigation: The Substance Focus the Investigation Assess—and Reassess—Investigative Progress Utilize the Science of the Brain Supplement Voir Dire Frontload Determinist
Supreme Court hasn't examined fairness in death penalty cases and reduced obstacles to its use; abolitionists need legislative and political strategies.
Looking at Hauptmann and Bigelow capital punishment cases to explore how our system is still fallible and how innocents can be sentenced to death.
Andrew Michaels∞ I. Introduction II. The Court’s Death Penalty And Categorical-Exemption Jurisprudence A. Atkins and Roper: The Court’s Articulation of the Two-Part Test for Categorical Exemption B. Graham: Finding a National Consensus Against a Punishment Based Solely on the Rarity of its Implementation III. Why