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

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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.

Time is running out for one of the only Jewish death-row inmates in America

Jedidiah Isaac Murphy, an observant halachic Jew, is due to be put to death next month in a case described by an expert as 'legally warped'

Some time during the afternoon of October 10, Jedidiah Isaac Murphy is set to begin his final journey.

Bound in shackles, he will be driven 45 miles in a fortified van from the Polunksy Unit, the maximum-security prison near Livingston, Texas, where he has been held for the past 22 years, to the state penitentiary at Huntsville.

There, a minute or two after 6pm, a specialist “tie-down team” of guards will unlock the door of his holding cell and escort him to a bare, 9ft by 12ft room with mint green walls that contains a single piece of furniture: an operating theatre-style gurney. They will tell him to lie with his palms facing up, then fasten him tightly to the gurney with eight straps.

An orderly will insert a cannula into veins in both of his wrists. When that is done, witnesses, including local reporters, will be admitted into the adjoining viewing room, where they will be able to watch the proceedings through a large glass panel. Murphy will then be invited to make a final statement.

Then, according to the Execution Order handed down by the Dallas district court, “You, Jedidiah Murphy, shall be put to death by an executioner… who shall cause a substance to be injected into your body sufficient to cause your death.”

The substance currently in use in Texas is the sedative pentobarbital, administered in a dose sufficient to stop his heart. Thus Murphy will become the fourth person to be executed in Texas, and the 18th in the United States, this year.

Leaving aside the fact Murphy is an observant, halachic Jew — since 1982 only one other Jewish person has been put to death by the Texas justice system — his story appears grimly routine.

But what makes Murphy’s case remarkable is that one of America’s most prominent lawyers, Alan Dershowitz, believes his execution would be a “terrible, profound injustice”.

That view is echoed by a Jewish anti-death penalty group L’Chaim: Jews Against the Death Penalty, which is campaigning on behalf of Murphy.

Dershowitz told the JC he would not stop fighting to save Murphy’s life “as long as there is still a breath of life left in him”, for he sees the looming execution as the product of “junk science” and a legally warped sentencing process.

According to Dershowitz — the Harvard Law School professor and lifelong opponent of capital punishment, whose previous clients include Donald Trump, Mike Tyson and OJ Simpson — prosecutors wrongly made the case for Murphy’s death sentence by presenting evidence of a crime for which he had never been charged, much less found guilty by a court.

The crime Murphy did commit was brutal. In October 2000, in Garland, a suburb of Dallas, he forced Bertie Lee Cunningham, a woman aged 79, to give him a lift in her car at gunpoint, then shot her while trying to bundle her into the boot. Afterwards, he drove to a neighbouring county, left her body in a creek and used her credit cards to buy alcohol and cigarettes.

His guilt is not in doubt. His spiritual adviser, Rabbi Dovid Goldstein, executive director of the Chabad-Lubavitch of West Houston and the head Jewish chaplain to the Texas criminal justice system, has known Murphy for a decade, and says he has been expressing profound remorse for many years. “He feels really, bad for what he did.” He has, Goldstein says, made tshuva, repentance.

The issue, however, is the basis of his sentence. This, Dershowitz told the JC, “is deeply worrying, and both morally and legally wrong”.

Under Texas law, it is juries, not judges, who have to decide whether to award a sentence of life imprisonment or death. This decision is made in the second, “punishment phase” of a trial, with the defendant already found guilty.

To opt for death, they have to be satisfied that the prisoner is so dangerous that if he were allowed to live, he would constitute “a continuing threat to society”; that is, to the lives of guards and other inmates inside a penitentiary.

They must also consider whether there is “sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed”, the law says.

“The death penalty should be reserved for only the most extreme cases, the most dangerous and brutal killers,” Dershowitz says. “Murphy does not fit that description.”

Murphy’s background was traumatic. Born in Sonora, south-east of Dallas, he spent his early years in terror of his father, a violent alcoholic who died in his early forties, when Murphy was eight. On numerous occasions, he witnessed him beating his mother mercilessly.

“I prayed that he would not come home at all anymore so many times because it was scary to watch him knock my mother out,” Murphy wrote in an account of his life for an online magazine. “As a child, you don’t understand what unconscious is. You see your mother fall and you think immediately that he killed her.”

When Murphy was three or four, court records say, his mother, unable to take any more, fled the family home. He lived for a while with his grandparents, a period he remembers with fondness, but after about a year, they both passed away.

He spent the rest of his childhood in orphanages and foster homes. Originally named Jim Kines, he was renamed Jedidiaih Murphy by one of his foster families.

In care, he witnessed and experienced further abuse, both physical and sexual, as noted by psychiatrists in a report on his condition drawn up in 1999, the year before he committed murder.

By the time he was 13, he was isolated from what was left of his family and drinking heavily, stealing both alcohol and the money to buy it. Somehow, he managed to get through high school.

But medical records show he emerged into adult life as a victim of Dissociative Identity Disorder (DID), which was formally diagnosed by psychiatrists in 1999, the year before his crime.

According to the British mental health charity Mind, this is a common way of “coping with childhood trauma”, in which a person feels they have multiple personalities, often in conflict with each other. Patients feel they have no control when different parts of their identity take over, and may suffer amnesia when this occurs.

Murphy was also plagued by vivid, psychotic hallucinations, with repeated visions that he was being attacked by snakes. He contemplated suicide and made at least one serious attempt, and was admitted to psychiatric hospitals multiple times.

“The patient reports a current suicidal plan of overdosing,” says a doctor’s report drawn up when he was discharged after spending three months in the Timberlawn mental hospital in December 1999. As for his DID, it says that “one of his alter egos is very aggressive. He reports auditory hallucinations [hearing voices] all the time.”

It was in this state that Murphy killed Bertie Cunningham, and then, heavily dosed with anti-psychotic drugs, went through his trial. In the past ten days, the JC has been corresponding with him; although the entire Texas prison system is on 24-hour lockdown following no fewer than 16 drug-related murders by inmates, he is allowed to communicate by tablet from his cell.

The drugs, Murphy said, “left me quiet and docile”, and meant the jury formed the false impression he felt no emotion over his crime. They also meant he could do little to engage with his lawyers, who were trying to persuade the court that here indeed was a case with “mitigating circumstances” that meant he deserved life, rather than death.

But, according to Dershowitz, the fact he received a death sentence was influenced by the way prosecutors conducted the punishment phase of the trial. The defence presented evidence from psychiatrists about his trauma and condition. However, legal records show the prosecution turned this on its head.

Even though no expert had testified that Murphy’s damaged mental health made him too dangerous to be allowed to live, the prosecutors argued that it did.

“The jury based its sentence on a prediction that he would continue to be violent. Yet over the 22 years he has been on death row, this has categorically been shown to be false,” Dershowitz said. “The judge told the jury they had to be sure beyond a reasonable doubt that he would commit further violent acts.

"But now that we know that he hasn’t, taking his life would be utterly gratuitous, based on junk science."

However, this was not the only questionable argument deployed in the punishment phase of Murphy’s trial.

Three years before Murphy committed his crime, a woman named Sheryl Wilhelm was carjacked in Arlington, about 75 miles from Murphy’s home and place of work in Wills Point.

When she saw TV coverage of his arrest, she called police and thought that he had been the man who attacked her and stole her vehicle.

Murphy had never been investigated, much less charged, for this crime. But during the punishment phase of his trial, the prosecutor claimed that he had committed it, and that this was critical evidence of his likely continuing dangerousness.

Over the years, evidence has emerged that suggests he cannot have done so. In this period he had a steady job at a computer technology company, and on the day of the carjacking clocked in for a night shift at 11.54pm.

After stealing Wilhelm’s car, the perpetrator drove it further away from Wills Point, eventually abandoning it in Wichita Falls after robbing another woman, who according to the police was attacked at 8.24pm.

Wichita Falls is 3 hours and 15 minutes’ drive in favourable traffic from Wills Point, meaning that if Murphy had an accomplice, it would, theoretically, just have been possible to get into that person’s vehicle after the attack and travel to work.

But no evidence that he did has ever been put forward, which leaves a huge unanswered question: if Murphy took Wilhelm’s car, how did he return to Wills Point?

Meanwhile, it has emerged that police took fingerprints from the stolen car which did not match Murphy’s. As for Wilhelm, she received a visit from a police officer on the eve of the trial.

She had, legal filings say, become unsure whether Murphy really was her attacker. But she was visited by a detective on the eve of the trial and reassured that she “had the right guy”. Neither of these facts were reported to the jury.

“The evidence Murphy committed this prior crime is almost non-existent,” Dershowitz says. “It is far more likely that he did not do it. This means the basis on which he was sentenced to death has been disproved.”

Writing from death row, Murphy told the JC: “I just want people to know the truth. I had a car that was paid for, and this man went to Wichita Falls Texas, where I have never been in my life.

"Then the car breaks down and this man supposedly hitchhikes back to work without stopping to get the car that supposedly took me there in the first place. That is what nobody talks about. How did I get to Arlington and why did I steal a car when I owned one?”

However, Murphy has already been turned down by the US Supreme Court and getting a further hearing now, Dershowitz said, is likely to be very difficult.

Previous attempts to get the evidence aired have been blocked by technicalities. Among those is the claim that it should have been presented earlier, and is now “procedurally barred”.

The only things that could now stop Murphy’s execution are a decision to grant clemency by the state’s Republican governor, Greg Abbott, or a last-ditch stay of execution from a state or federal court. But the chances do not look good.

Texas has granted clemency to a death row inmate just three times in the past 40 years. Dershowitz cites the Torah, and its emphasis on tzedek, justice: “If a person is about to be unjustly executed, there has to be a means of addressing it. There has to be procedural tzedek, a way of challenging wrongs. We will fight to discover it.”

After he was sentenced, Murphy’s condition slowly stabilised. He formed a loving relationship with a woman, a retired publisher whom he calls his wife.

She has asked not to be named, but has visited him every month for many years. He began to read avidly, and then reached out to Rabbi Dovid Goldstein.

“When he first contacted me, I wondered: Was he just playing the Jewish card, in the hope of getting better treatment?” Goldstein said. “But as I got to know him, I felt I could hear the cry of his soul reaching out to Hashem. Now we do as much as we can to help him express his Judaism.”

In 2016, supervised by Goldstein, though separated from him by a glass petition, Murphy put on tefillin for the first time, what Goldstein called his “death row barmitzvah”.

Murphy is also being supported by campaign group L’Chaim: Jews Against the Death Penalty, co-founded by Michael Zoosman, a chazan and former prison chaplain based near Washington DC.

“We carry the torch from Elie Wiesel,” Zoosman says, “who said the death penalty should never be the answer in any civilised society, whether the inmate has expressed t’shuva or not.

"But Jedidiah has made t’shuva, and at the time of his crime, was afflicted by severe mental illness. Rabbinic tradition says executions are wrong in all but the most exceptional circumstances. In Jedidiah’s case we must say: kal v’chomer [all the more so] because of what he went through.”

Murphy, however, seems resigned to his likely fate.

In an email he sent to the JC on Monday evening, he referred to his fellow death row inmates: “I would happily spend the rest of my natural life serving these same broken men and those that could make the same mistakes I’ve made in my life.”

But he continued: “It’s Hashem who is in control of it all… I have less than 30 days now and I see my wife tomorrow. That is what I am looking forward to and all of this other is just background noise. Be safe out there man and bless you and your family. Shalom, Jedidiah.”

Source: thejc.com, David Rose, September 14, 2023


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."


— Oscar Wilde

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