U.S. | Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object

The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.” Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one. Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

USA: Judge's fictional account gives inside view of death penalty trial

Michael A. Ponsor: "The Hanging Judge"
Judge Michael A. Ponsor's novel "The Hanging Judge" involves a murder trial.

In the United States legal system, there are few cases where stakes are as high and pressure is as intense as one involving the death penalty. The daunting question of life or death weighs on the defendant, but also prosecutors, defense lawyers, jurors, and the judge.

Just ask US District Court Senior Judge Michael A. Ponsor. A decade ago, he oversaw the 1st death penalty trial in Massachusetts in more than 50 years, in the case of Kristen Gilbert, a veterans' nurse who faced capital punishment for injecting patients with epinephrine, causing them to have fatal heart attacks.

A jury in Springfield ultimately spared Gilbert of the death penalty in 2001, choosing to sentence her to life in prison, following a dramatic, 5-month trial that Ponsor says helped mold his view of capital punishment.

And now, with the rare occasion of 2 death penalty cases playing out in federal court in Massachusetts, Ponsor has penned a novel that provides an insider's view of the intense legal process we can expect in the trials of Dzhokhar Tsarnaev, the alleged Boston Marathon bomber, and Gary Lee Sampson, an admitted serial killer who carjacked his victims.

"The Hanging Judge" is a fictional account of a death penalty trial involving a gangland murder, prosecutorial malfeasance, and a thoughtful judge struggling to make sure justice is carried out. Ponsor spoke to the Globe about the story line and his experience in such a high-profile trial.

Q. Tell us a bit about your book's story line and how it plays into the larger picture of an actual death penalty trial.

A. The precipitating event is a drive-by shooting that takes the life of the target, a drug dealer, as well as an unlucky bystander, a hockey mom volunteering at a nearby street clinic. Powerful evidence quickly points to the defendant, an African-American ex-convict named Clarence "Moon" Hudson, as the shooter, and the politically ambitious US Attorney shifts the case to federal court so he can seek the death penalty. The central figure is the presiding judge, David Norcross, a decent, reasonably intelligent man, who is determined to give Hudson a "truly fair" trial.

'A legal regime permitting capital punishment comes with a fairly heavy price. I wanted people to know this.'

Q. What about the Gilbert case caused you to write a fictional account of a death penalty trial for your 1st novel?

A. The most profound realization I took from Gilbert was that human beings getting together to decide whether someone should be executed, even when they are supervised by a judge, will make mistakes. A legal regime permitting capital punishment comes with a fairly heavy price. I wanted people to know this.

Q. What do you mean when you say that the death penalty comes with a heavy price?

A. I mean, first of all, that where there's a death penalty innocent people will die. Sooner or later - we hope not too often - someone who didn't commit the crime will be executed. Every religion, every philosophy, every wise person - at least every one I've ever heard of - tells us that people are fallible. No religion I know of says that human beings are fallible in everything except in selecting who will face execution, and in that one area they are perfect.

Q. Are you saying you think a mistake was made in Gilbert? She got a life sentence without parole, after all.

A. No, I'm not saying that. I'm fairly sure Ms. Gilbert actually did commit the despicable murders she was charged with, and I'm comfortable with the heavy sentence I gave her. Overwhelmingly, thank heaven, people charged in capital crimes are guilty, often obviously guilty.

On the other hand, plenty of objective evidence suggests that mistakes occur in these trials regularly. Since the Supreme Court reinstated the death penalty in 1976, roughly 1,300 people have been executed. During the same time, over 140 people have been exonerated.

Q. Do you consider "The Hanging Judge" to be an anti-death penalty novel?

A. Absolutely not. The novel merely says, or tries to say: "Here is how a death penalty trial actually works. Now we can talk."

Q. How is the book being received?

A. "The Hanging Judge," my agent tells me, has so far sold over 40,000 copies in print and e-book format, pretty good for a 1st novel. It spent 1 blessed week on The New York Times bestseller list, and we're negotiating a contract with my publisher for my next book.

Perhaps the most gratifying reward I've gotten for writing the novel is a letter I received from retired Supreme Court Justice John Paul Stevens, one of my heroes, who said he "thoroughly enjoyed" the novel and praised it for demonstrating that the "judicial process is not infallible."

In my world, this is like getting a letter from the Dalai Lama, and I had to peel myself off the ceiling when I read it.

Q. What is the significance of the title, "The Hanging Judge"? Your protagonist, Judge David Norcross, seems like a pretty decent man.

A. I liked the double meaning that the phrase conveys. A "hanging judge" can mean 2 things: either a judge who hangs people, or a judge who is himself hanging. All judges who preside over death penalty trials are in this fix. They face the possibility of having to sign an execution order, and they also figuratively dangle over the capricious process they are supposed to be supervising.

Q. 1 of the subplots in your novel involves 2 luckless Irishmen, executed in Northampton in 1806. Why did you include their story?

A. We like to console ourselves that the injustices of the past no longer occur in our country in the 21st century. Yet the hanging of Dominick Daley and James Halligan, 2 innocent victims of virulent anti-Catholic bigotry in 1806, has its parallels today. The people executed are most often the friendless, targets of prejudice and fear. I had no idea that Catholics were so abhorred in Western Massachusetts 200 years ago. The defendant in my novel, Clarence "Moon" Hudson, a young African-American man with a criminal record and an intimidating face, shares some of the same vulnerabilities Daley and Halligan suffered. Beyond that, the story of the 2 courageous Irishmen, who stood on the gallows, declared their innocence, and then stated that they "blamed no one and forgave everyone" deserves to be retold.

Source: Boston Globe, Nov. 13, 2014

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