National Review, June 29, 1984

[James Fulford writes:This  is being posted because while it used to be on various websites, it has now disappeared, and since it's quoted extensively in my Fulford File for Saturday, September 24, 2011,[Troy Davis, Lawrence Brewer, Wyatt Matthews And The Disparate Death Penalty] I thought readers might need to refer to it.]

By Joseph A Rehyansky

Grafenwohr lies in a remote corner of northeastern Bavaria, twenty miles or so from Czechoslovakia, just beyond the minefields. It is a training area for U.S. Army armored units in Germany; the units with their officers and enlisted personnel rotate in and out regularly, getting a taste of living in the field and firing their impressive weaponry for practice with live ammunition. It is cold there in February, as my family and I well know, for we lived in the tiny village of Vilseck, about 12 miles south of Grafenwohr, for a year in the mid-Seventies. The events I am about to describe took place on February 27, 1979, three years after we left. The aftermath dragged on for five years.

Phyllis was 29 and beautiful, the wife of an Army career warrant officer helicopter pilot. She had been, for about a month, substituting as a camp librarian, filling in for a woman on maternity leave. Private First Class Wyatt L. Matthews, 22 and, some evidence indicates, mildly retarded as well as alcoholic, had been in the Army for 18 months, in Germany for one.

None of the following facts is seriously in dispute.

As Phyllis walked toward the library on the afternoon of February 27, Matthews followed her, attempting to strike up a conversation. She did not reply. Later, in the library, Matthews asked Phyllis for a date. She declined, replying that she was a married woman. He then asked her to find two "sexy books" for him, and she suggested that he try a nearby bookstore. After all, the other patrons had left the library, Matthews asked her to locate for him a book that he apparently knew to be in the rear of the library. Matthews did not follow her at first, instead lingering to remove the door key and library scissors from Phyllis's desk. He wore gloves. After securing the front door, Matthews confronted Phyllis in the back of the library, covered her mouth with his hand, forced her to disrobe or disrobed her himself from the waist down, and raped her.

During the rape Matthews stabbed her with the scissors, which were nine inches long. Fifty-one stab wounds later, Phyllis died, although her assailment stabbed her at least twice more. Carrying her underpants as a trophy, Matthews left the library, forgetting for a time the scissors and a six-pack of beer he had brought in with him; he later returned and coolly retrieved them before the body was discovered.

Phyllis's husband became concerned at her failure to return home at the accustomed hour. He went to the library and found her body at 9:20 P.M.

Brought to trial that summer in Grafenwohr, Matthews was prosecuted by a law-school colleague of mine. Defended by both civilian and military counsel, he attempted to plead guilty to the charges: premeditated murder and rape. But because the prosecution was seeking the death penalty, the plea was rejected; in the military, whenever the accused is in jeopardy of forfeiting his life, the government's evidence must be put to the test. After a ten-day trial, Matthews was convicted of both charges and was sentenced to death by the only forum that can impose such a sentence in the military, a unanimous jury (called "court members" in military practice). Interestingly enough, the colonel who served as president of the court, functioning as a jury foreman, is black, as are Matthews and the commanding general who ordered the case to trial after an exhaustive investigation. But Phyllis was white, and the NAACP Legal Defense and Educational Fund, The ACLU, and other itinerant officious intermeddlers joined the battle to prevent Matthews from being the first person executed by the military in more than two decades.

The legal issues on appeal were, in fact, not complex, notwithstanding the 750 pages of briefs that were filed. Among them were, first, the constitutionality of the statute authorizing death as a sentencing option in cases of premeditated murder in the military after the Supreme court's 1972 decision in Furman v. Georgia, which struck down the death penalties of the states as arbitrarily and capriciously imposed; second, the question of whether the military judge's charge to the jury adequately focused their deliberations on sentencing on whether to impose death; and, finally, one or two legalistic niceties so sublime in their hypertechnicality as to make a Buddha—or a founding Father—weep.

Certainly I do not mean to make light of Matthews's predicament, or of society's; no one should be put to death for a crime without a thorough and impartial review of the trial proceedings. Neither, however, is it unrealistic in most cases to posit that such a review can be completed within a year of the judgment of death. It is sheer fantasy to suppose that the drafters of our Constitution envisioned the talismanic patchwork of repetitive reviews amounting, in the words of Supreme Court Justice Lewis F. Powell Jr., to a "now familiar abuse of process" that has caused the death-row population in the United States to soar beyond 1,100—a total even more startling when one considers that the Supreme Court temporarily emptied our death rows with its decision in Furman just 12 years ago.

It is a rare enough for lawyers, let alone laymen, to reflect on what our Constitution actually does have to say about capital punishment, or judicially imposed punishment of any kind: "No person shall be . . . deprived of life, liberty, or property without due process of law . . . Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

It has been observed that Leon Czolgosz went to his death 49 days after his victim, President William McKinley, and no one has ever seriously contended that he was denied "due process of law." The Framers of the Constitution, of course, had no intention of abolishing the death penalty with their reference to "cruel and unusual punishments," and the Supreme Court itself, until 1972, addressed only the method of execution and the appropriateness of death for a specific crime when called upon to interpret the phrase. Since 1976, the death penalty has again been adjudged lawful in most states under statutes that have passed the constitutional muster mandated in Furman. Nonetheless, we are all familiar with the not infrequent spectacle of a condemned prisoner being put to death only after spending his final weeks firing a light brigade of pro bono ambulance chasers and insisting that he prefers death to life imprisonment; or after truly heroic efforts by a state attorney general who has spend days flying around the country opposing spurious last-minute appeals in various forums. Justice Powell, speaking before the 11th Circuit Conference, provided an excellent example of that phenomenon:

“The most recent example is the Evans case from Alabama. Evans was found guilty and sentenced to die in 1977. No one seriously suggested his innocence or that under existing law capital punishment was not a merited sentence. Resourceful counsel, six months after federal habeas seemed to have been exhausted, sought a stay of execution from me as circuit justice. Filing of the application was delayed for two months after Evans's motion for a new sentencing hearing was denied. Filed late on April 19, it reached my chambers on the morning of the 20th, forty hours before scheduled execution time.

With the concurrence of six other members of the Court, I denied the application of 5:45 P.M. on April 21. Approximately twenty minutes later, and with no notice to us, the same counsel filed a new petition for a writ of habeas corpus in the District Court for the Southern District of Alabama. The petition raised numerous grounds resolved in the prior habeas proceedings and also purported to identify "new" grounds. This belated filing occurred less than seven hours before scheduled execution time. After consideration by all nine of us, we granted the state’s application to dissolve and vacate the stay. . . .”

Abuse of process, indeed. But why does it happen? Why is it tolerated? And why does it, almost invariably, work? The answer is not primarily based in law, for the imposition of death is, under many circumstances, lawful; the statutes that authorize it and the judicial decisions interpreting them are, if not crystalline in their clarity, at least not hopelessly opaque. The respectable intellectual case based in law, logic, precedent, or morality for the abolition of the death penalty has yet to be made; the best its opponents can muster is squeamishness and pity lacquered over with learned argument. And no one who examines even a random sampling of the crimes committed by those currently on death row can have any conscientious doubts that the imposition of death is appropriate for these offenses; we no longer adjudge death for garden-variety rapists, heat-of-passion killers, or even most premeditated murderers. The death penalty has long been adjudged only for the most savage crimes.

Part of the responsibility for the current impasse, of course, lies with the lawyers. I am not well acquainted with any of the small platoon of attorneys who defended Wyatt Matthews, but I doubt that any of them was personally committed to him. The civilian who defended him at trial (and who spent the first 15 minutes of the final appellate argument apologizing for his own performance at trial—a novel approach to trying to obtain a reversal for incompetency of counsel) stayed on the case, and I doubt that he was paid much, if anything. The public-interest lawyers were being faithful to their muses, trying to convince us that when a black is executed it is only because he is black; or that the military-justice system is corrupt; or that capital punishment is an abomination in a society as highly evolved as ours; or that the statute under which Matthews was sentenced is technically unconstitutional; or that we didn't do it right the first time at trial and so we have to be made to do it all over again. The military attorneys assigned to work on Matthews's behalf did their jobs to the best of their abilities, and were thus being true to their oaths as attorneys and officers. All of Matthews's lawyers—retained, pro bono, and military—were of course aware that this is a landmark case, and that having worked on it would enhance their professional reputations regardless of whether he lived or died. The opportunity to work on a case of this sort, in or out of the military and regardless of the outcome, is a thing to be cherished. However, at the end of the well-traveled road of judicial process, there comes a division. On one side stand attorneys who are guided by the law; on the other are those whose abhorrence of capital punishment is so strong, for whatever reason, that they are willing to engage in "the now familiar abuse of process" described by Justice Powell.

But why does it word? Because judges are lawyers and among them is a contingent whose reluctance to impose the death penalty is equal to that of the defendant's lawyers. We now have a federal judiciary that is more than 50 per cent Carter appointees, a group of modernist jurists disproportionately liberal and anti-capital-punishment. Regardless of the forum or the merits of the case, it is not difficult to find a federal judge who does not want to be the last person to say No to a condemned prisoner, and who will assume jurisdiction—or pretend that he has it—so that he can grant a stay that brings the machinery of justice to a grinding halt just long enough to allow the death warrant to expire, so that a new one will have to be applied for and obtained from the governor, a new date will have to be set, witnesses will have to be screened and renotified . . . And while all that is going on there are still other forums where photocopies of rejected briefs can be filed. In the world of legal practitioners who believe that the law is, or should be, whatever feels good, it is easy to find someone who believes that saving a life—even the life of someone as dangerous to others as Matthews—is a noble cause.

The apparently principles reluctance to impose the death penalty is often nothing more then moral squemishness, the wish to spared the unpleasant consequences of hard decisions. Fornicators, adulterers, abortionists, and murderers usually operate with a modicum of privacy—if not outright clinical respectability—and we are generally spared witnessing the consequences of their acts unless we are among the injured parties. But Matthews has the form and substance of an adult human. He is verbal. He is, in a sordid way, a celebrity. His battle to remain alive has been noteworthy, and his execution would be even more so; you would read about his final words, about his last meal and the reactions of witnesses, about the executioner's preparations, the disposition of the corpse, the inevitable protestors, his mother's tears. We would be forced, as a society, to participate in his suffering, and that robs us of the will to exact righteous retribution.

You will not, of course, read very much about Phyllis. She has been in her grave for more than five years, and her husband is remarried and retired from the Army. She is simply another victim who, in the words of Dr. Willard Gaylin, in The Killing of Bonnie Garland,

“. . . in a time so short as to seem indecent to the members of the personal family . . . ceases to exist as an identifiable figure. To those individuals in the community of good will and empathy, warmth and compassion, only one of the key actors in the drama remains with whom to commiserate—and that is always the criminal. The dead person ceases to be a part of everyday reality, ceases to exist. She is only a figure in a historic event. We inevitably turn away from the past, toward the ongoing reality. And the ongoing reality is the criminal; trapped, anxious, now helpless, isolated, often badgered and bewildered. He usurps the compassion that is justly his victim's due. He will steal his victim's constituency along with her life.”

Matthews's death sentence was upheld by the United States Army Court of Military Review in Falls Church, Virginia, late in the winter of 1982. In a well-reasoned opinion, the court held that the statute authorizing death as a sentencing option in cases of premeditated murder in the military was constitutional under the Furman test, and analogized the statute to others that have been upheld by the Supreme Court. It took another year for briefs to be prepared and argument scheduled before the United States Court Of Military Appeals—a panel of three civilian judges appointed by the President to 15-year terms—which is the highest military court in the land.

As the bailiff took his seat on April 20, 1983, Chief Judge Robinson O. Everett said, "On our docket for oral argument this morning is the case of the United States versus Wyatt L. Matthews. Are counsel ready to proceed?" Argument, rebuttal, and questioning took four and a half hours. When the proceedings in the hot, crowded courtroom became too repetitive, I studied the other spectators from my seat near the rear of the chamber. Among them were Matthews's mother and sister, and Phyllis's parents and aunt and uncle. The only outward show of emotion I detected was from the aunt—whom Phyllis closely resembled. She pressed a handkerchief to her mouth during counsel's brief recitation of the facts of the murder.

The amici from the ACLU on behalf of Matthews and from the Department of Justice on behalf on the prosecution argued brilliantly. Captain Michael Pfau was lead counsel for the prosecution and primary drafter of the government's two-hundred-page final brief. His argument was articulate and aggressive, his responses to questions unhesitating and, when necessary, innovative. His knowledge of the case and the applicable law was simply exhaustive. The reactions of appellate judges on the bench do not always presage their ruling, but in this case they were clearly unreceptive to most of the prosecution's theories on constitutionality in sentencing procedures. The judges did not want to discuss the crime itself—that was not one of the more important issues specifically before the court—and when Captain Pfau tried to, chief Judge Everett told him courteously that the facts of the offense were familiar to the court.

On October 11, 1983, the court issued its 39-page decision, the heart of which reads:

“To pass the test of constitutionality, each "aggravating circumstance" which the jury found and upon which its decision was based "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." . . . Unfortunately, neither the [Uniform] Code [of military Justice' nor the Manual [for Courts Martial' requires that the court members specifically identify the aggravating factors upon which they have relied in choosing to impose the death penalty. Since they provide no insight into their sentencing deliberations, it is impossible upon review to determine whether they have made an "individualized determination on the basis of the character of the individual and the circumstances of the crime," and whether they have "adequately differentiate[d] this case in an objective, even-handed, and substantively rational way" from the other murder cases in which the death penalty was not imposed....

The evidence of record in this case provides ample aggravating circumstances to distinguish it from other murder cases and to justify the imposition of the sentence imposed. However, the lack of specific findings of identified aggravating circumstances makes meaningful appellate review ... impossible, and we cannot be sure that the sentence was correctly imposed....

... The decision of the United States Army Court of Military Review is reversed as to sentence...”

However, the court went on to state that "a conviction of premeditated murder can sustain a death sentence if proper sentencing procedures are employed" and the "great breadth of the delegation of power to the President by Congress with respect to court-martial procedures and sentences grants him the authority to remedy the present defect in the court-martial sentencing procedure for capital cases." If Congress or the President were to promulgate new sentencing procedures consistent with the decision within ninety days of the court's mandate, a rehearing convened solely to address the matter of an appropriate sentence for Matthews could be ordered, and he could again be sentenced to death.

In which event, we would turn the clock back to July 1979, and the appellate gauntlet would begin anew; the case would find its way again to the Court of Military Appeals, and might be argued by attorneys now in grammar school. A pending change in the applicable law, to be effective August 1 of this year, will authorize direct appeals from decisions of the Court of Military Appeals to the Supreme Court. Previously, there was no direct route of appeal for most military defendants into the federal court system, but exceptions were made. The conviction of mass murderer Lieutenant William Calley was eventually upheld by the Fifth Circuit Court of Appeals, and certiorari was denied by the Supreme Court; Captain Howard Levy, the physician who counseled disloyalty and disobedience among enlisted soldiers during the Vietnam War, eventually had his conviction reviewed, and affirmed, by the Supreme Court.

Assuming affirmance of a death sentence by the Supreme Court, the case would then go to the President, for he must personally approve the execution of any sentence to death before it can be imposed upon a member of the armed forces. In such a case, were the incumbent a Democrat whose political fortunes depended on the constituencies from which most capital offenders, and many of their lawyers, have sprung, he would probably commute the sentence to life imprisonment. If the incumbent were Ronald Reagan or any of his likely Republican successors, the sentence would probably be approved.

However, the issue as to Matthews is now moot. On January 24, 1984, President Reagan signed Executive Order No. 12460, revising sentencing procedures in military capital cases in accordance with the Court of Military Appeals' mandate. However, perhaps in order to avoid double jeopardy and ex post facto problems in yet another round of the seemingly endless appeals of the then-pending death-penalty cases, the Executive Order specifically directed that it be applied only to capital crimes committed on or after its effective date—January 24, 1984. The United States Army court of Military Review had no choice but to issue an Opinion of the Court on Further Review, which it did on March 7, 1984: "... this Court ... affirms that portion of appellant's sentence adjudging a dishonorable discharge, forfeiture of all pay and allowances, and reduction to the grade of Private E-1, and substitutes confinement at hard labor for life for appellant's sentence to death." It is likely that Matthews will become eligible for parole consideration at some time.

In any event, he will be with us for a long time, for his needs are met and he is well cared for, at an approximate cost to the taxpayers of $15,000 per year, not including legal costs. What can be done? I wish I know. Not long ago I read a dazzling 1,200-word essay which concluded irresistibly that the problems of the Middle East are, quite simply, insoluble. So may be the virtual stalemate on capital punishment. Even Justice Powell has little to offer, except to observe that this malfunctioning of our system of justice is unfair to the hundreds of prisoners confined anxiously on death row. It also disserves the public interest in the implementation of lawful sentences. Moreover, it undermines public confidence in our system of justice and the will and ability of the courts to administer it. Unless the courts—and Congress—discharge their respective duties to move effectively to address this problem, the legislatures of the several states should abolish capital punishment.

In the meantime, while stratospheric thinkers and rigorous scholars continue to wrestle with the momentous issues, Matthews—serving a life sentence in the U.S. Disciplinary Barracks at Fort Leavenworth—more than five years after his crime, lives on and, it now appears, may outlive us all.