Texas, with one-thirteenth of the country’s people, has killed 37 percent of the convicted murderers “executed” in the United States since 1976. As Adam Liptak’s December 26 report in The New York Times made clear, this is not because Texans on juries bring in more death sentences than their fellow Americans-they do not-but because the state’s district attorneys, judges, and other politicians are more aggressive in favor of killing convicted killers. The recent use of DNA testing has cleared people we were getting ready to kill, giving anyone with a conscience pause as we realize that the states have probably been killing, quite irreversibly, some innocent people. The likelihood that lethal injection as practiced sometimes causes the dying prisoner agony and suppresses visible signs of it has resulted in a de facto national moratorium on “capital punishment” until the Supreme Court rules on that issue next June. In polls, Texans support the state’s killing convicted killers, but when the option of life imprisonment with no chance of parole is included in the questioning, opinion hitches back clearly against state killing. In 2005, Texas legalized the mandatory-life-sentence option. Yet last year Texas killed 62 percent, almost two-thirds, of the entire country’s “executed” prisoners, 26 of 42. As Observer readers well know, there is something wrong here.
Texas Solicitor General R. Ted Cruz, who leads the state’s legal brigades in executing convicted killers in Texas, told Jonathan Gurwitz, an editorial board member at the San Antonio Express-News, for a Jan. 19 Wall Street Journal op-ed, that “frequently, when those … who are opposed to the death penalty are presenting their arguments, one of the aspects that is strikingly missing is any consideration of the nature and barbarity of the crimes these people commit and any genuine consideration of the impact these crimes have on the victims’ families.”
My father’s parents died when he was very young, and he and his brothers and sisters were distributed among relatives and close friends. He was adopted and raised by Florence and Herman Zeuhl of the farming town of Zeuhl near Seguin, south of San Antonio. That makes me family, but not blood kin, with their daughter, Aggie Zeuhl Herden, one of the toughest, lovingest, and most whimsical of women, and her husband Herman, who drove my dad to work early every morning in San Antonio. When I was six or seven, visiting out at my “Aunt Florence’s” farm, the Herdens’ two little girls, Aggie Beth and Mary Jane, conspired one delirious and terrifying midday to give me my first kiss, and prevailed. Spending some summers out there, I learned what I know about farming life. Early mornings I collected the chickens’ eggs from their nests. I watched the milking. Aunt Florence told me I could grind all the popping corn I wanted for the school year. Later, my mother and Aggie used to visit a bar or two together, simulating the freedoms of men, but not women, in those days. They would walk down to the newspaper where Aggie’s husband worked and visit him, then duck in for a few beers, and walk home. Sometimes, when my mother was fed up with my father, she and Aggie would tie one on. For my mother, born in Glasgow, and with no relative of her own anywhere near, Aggie was her nearest kin, her pal there in little whiles of freedom from housework and selling women’s clothes for wages downtown. The thing about Aggie was her smile, kind of crooked-like, a worldly smile that turned on for a lot of things that weren’t supposed to be funny. She knew the world. And she loved. When her Herman died, I showed up at her house in San Antonio at 801 Aransas Avenue with a bottle of Jack Daniel’s for her, and we hugged and hugged and hugged. She was a devout Catholic like my father, and in her late 70s she was living alone and taking care of the cooking and housekeeping for a group of priests at the St. Margaret Mary Catholic Church. Her sons, worried about her alone in her South San neighborhood, got her a black pistol. She bought an alarm system for the house, but the company only wired one of the many windows. She had a hearing aid, but when she went to sleep she turned it off.
At 3 or 4 o’clock the early morning of July 4, 1990, when Aggie was 79, a troubled young man who had been drinking, 23-year-old Steve Rodriguez, pried the screen from an open back window and climbed in. He threw a TV and a fan out that same window, encountered Aggie, who was up, and stabbed her with a Buck hunting knife six times, once in her face, three times in her neck, and twice in her chest. She fell back partly on and partly off her bed. He pocketed her black pistol and some jewelry, threw another TV and a stereo out the window, and left. The police had been alerted at 4:15 a.m. by a silent alarm in her house and, going to a nearby house where one of them said he knew burglars lived, arrested Rodriguez with items he was alleged to have stolen. At 5:10 a.m., one of Aggie’s sons, also named Herman, charged into the house and found his mother. A cop who was there heard him scream and saw him go out front and bang his head on the sidewalk. The cop did not say how many times. Aggie was pronounced dead at 5:40 a.m. Rodriguez, his first denials undercut by witnesses, confessed to three detectives about 9 a.m. He said Aggie had come at him. He apologized for killing her. Six priests came to her funeral. At the trial in 1992, Rodriguez pled guilty. His lawyers argued that he was mentally retarded and damaged by inhalants. The jury gave him death.
In 1990 there were 129,345 violent crimes in Texas. Gov. Ann Richards was informed by the Texas Department of Criminal Justice on May 8, 1992, that Rodriguez was “under the sentence of death for the offense of capital murder.” In 1995 Gov. George W. Bush was informed that “the date of execution is set for ‘some hour before sunrise on Wednesday, November 8, 1995.'” After the usual state and federal appeals, the sentence was upheld. In 2002, though, the Supreme Court prohibited the execution of the mentally retarded, and a Texas judge granted Rodriguez a new punishment trial over that and a related question.
All this time, Rodriguez was in prison and his family waited, knowing every day that the state had decided to kill Rodriguez. Aggie’s large family, keeping up with the legal blow-by-blow, inescapably were being reminded again and again and again of the terrible way that beloved Aggie had been murdered. There were photographs of Aggie sprawled bloody in her bedroom. Some in the Herden family looked at these; some never could. There are some things about how some of them felt from time to time about Rodriguez that I am not telling you. Aggie’s son Matthew had spent his working life as a cop in San Antonio. He made detective and became the secretary-treasurer of the state police association. He and his wife Martha live in a spotless old Hill Country house in Blanco an Olympic discus throw across a wide meadow from St. Ferdinand’s Catholic Church, which stands alongside the beautiful Blanco River. At the church barbecue one Sunday when I came by, Matt was dishing out barbecue chicken. He puts out the church bulletin and is an elected member of the Blanco school board. Martha attends to vessels and linens for St. Anne’s Altar Society on the second and fifth Saturdays. Many an hour on many a day, Matthew and Martha conferred with their pastor, Father Nick Ejimabo, who is from Africa, about Aggie-their grief and anger, where God was, Rodriguez, his sentence, and what is right. Such questions haunted all the other Herdens whose names I could call. Here was a family that had suffered no closure on Aggie’s death for almost 18 years when lawyers for Rodriguez proposed to Bexar County prosecutors that his new punishment trial be settled by life without parole.
The prosecutors asked the Herden family what they wanted. Did they want Texas to insist and contend with every available argument that Rodriguez should be killed? Or did they agree to accept Rodriguez and his family’s proposal to spare Rodriguez, now 41, if he would be locked up for sure for the rest of his life? Conceivably, at the retrial he could win a pardon. The Herden family met. They accepted his being locked up until he dies.
“Killer Gets Life with No Parole,” said the headline this January 15 in the San Antonio Express-News. The legal problem, indeed, the constitutional problem, had been how to achieve that result although the law authorizing that alternative had been passed 15 years after the crime. Rodriguez waived his constitutional protection against double jeopardy and pled guilty to three offenses: burglary, assault of an elderly person, and aggravated robbery, which combined equaled a capital crime, and he was sentenced to life for each offense, with the three sentences to run one after another. He also waived any right to appeal, any clemency, or any parole. If he asked for any of these, the Express-News reported, “the state could renew pursuit of a death sentence.”
“We structured it so that he would never, never get out of prison and he would never harm anyone else,” prosecutor Melissa Skinner told the newspaper.
In the courtroom, as the outcome was settled, my cousin Matthew Herden said to Steve Rodriguez, who did not look back at Matthew, “She was a nice, sweet person. Every time the Fourth of July comes up at 4 o’clock in the morning, I have to think about you putting a knife in my mother.”
Matthew added, “I don’t want to hear anything out of you, if you don’t mind.”
Sharing the suffering of my kinspeople all these years-the Herden family was in some deep way killed by Steve Rodriguez-I came to understand why a man might want to kill the man who killed his mother. But the Herdens left it to the system and God, and at last, forced to decide, they spared themselves, and were spared, the awful burden of personally participating in killing Steve Rodriguez. To the young people watching all this closely and to the rest of us, the Herdens and the Bexar County prosecutors showed that Texas can forbear killing killers and still protect those of us free in society. Thus we do see real ethical progress in our own place and lifetime. And there is a closure. Martha Herden says it’s as if the family can finally hear Aggie say again, “Let’s go have a couple of drinks.” I am very proud of them, and I know that Aggie is, too.
Ronnie Dugger is the founding editor of The Texas Observer. He can be reached at [email protected]