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is, we live in a human society administered by human beings and we haven’t found a way to administer that kind of system in a way that is fair or in a way that is not discriminatory, in a way that doesn’t result in poor people or the killers of white people going to their deaths and other people escaping their deaths. . . . There’s another side to this also, though, in that there is a strange kind of twinship of victimhood in the families of Death Row inmates and in the families of the people they murdered. And if you talk to the families of Death Row inmates you find out other things that are horrible. .. . Observer: Mr. Eads, do you see people on Death Row as victims as well? Eads: Well, whether or not they are victims of their own upbringing, their own environment, perhaps they may be but I don’t feel that someone’s background, I don’t feel that someone’s upbringing, I don’t feel that someone’s environment should be provided to them as a legal excuse for committing the offense of capital murder. . . . You have two defendants in Utah that commit the offense of murder upon three victims prior to the offense of murder they’re all forced to drink Drano, one is raped, the other has a ballpoint pen kicked in his ear prior to death. I can’t accept, whatever the background is, those particular defendants in that particular type of case, as an excuse for their conduct. I cannot take someone’s upbringing as an excuse, such as Jerry “Animal” McFadden, who had four previous rape convictions, four previous terms in the Texas Department of Corrections, is released early on parole, and brutally rapes and murders an 18-yearold girl and shoots to death her 19and 20year-old companions. I cannot accept as an excuse for that conduct, his upbringing, his family environment, or his life’s experience. LaMarche: All we’re talking about here is not whether people ought to pay for their acts and whether there ought to be responsibility. I agree that no matter what kind of an upbringing somebody had, that cannot be a way to permit them to escape responsibility or to escape punishment. Our only point of difference here is whether this society ought to be able to deliberately put people to death for their crimes, and we disagree on that. But we don’t disagree that they ought to be _subjected to very severe punishment. Observer: Mr. Eads, it seems to me that one of the arguments that you’re making for the death penalty is having to do with people that have committed animalistic acts. Why not just keep these people in prison? That doesn’t necessarily follow that there is a need for society to execute. Why not put them away and make sure they don’t do it ever again? Eads: First of all, in the state of Texas we don’t put people away to where they’re never paroled. There’s no such thing in the state of Texas as punishment without parole, nor is there any guarantee that that particular defendant who is guilty of that particular offense will not be back out walking the streets in a much shorter period of time than they’re originally sentenced to. . . . This is not a law enforcement issue of what law enforcement wants. This is an issue of what the public wants. It is an issue “I don’t feel that someone’s upbringing should be a legal excuse for the offense of capital murder.” of moral feeling, one that I think has long passed the point of argument . . . of whether or not the death penalty is supported. I’m concerned that those people who are in favor of the death penalty feel in some way that they should be made to feel guilty for feeling that way. Unlike a hive of bees or a hill of ants, we as individuals are outraged when someone murders our neighbor or rapes our friends or slaughters our loved ones. And it is that moral outrage, it is that sense that we have the right to feel the moral indignation that makes us healthy as a society. It is something that we should not be ashamed of, we should not be fearful of, but it demonstrates that we’re willing to place upon human life the highest of value, and that is if you take human life you will, in fact, forfeit your life, if the facts and circumstances warrant the death penalty in that case. QUESTIONS OF INNOCENCE Observer: Mr. Eads, I’m intrigued by the points you made about the workings of the criminal system, and earlier you made a point about the workings of the penal system; in answer to a question about why not just keep the worst of the criminals in the prison system, you said, well, there’s no guarantee that they’ll stay there; these folks could be out on the streets in five or ten years. Now, it seems to me that people on your side of the argument are quite willing to concede the problem of the workings of the prison and legal system in that respect. Why then, don’t you also concede the problems as it has to do with the death penalty? Do you worry that the death penalty system can go wrong and an innocent person can be executed? Eads: No, that’s not of concern to me not in the legitimate sense of an attorney representing the state. Not that someone who is innocent will be wrongfully convicted just because of a lengthy and complicated appellate process and review that we have. With regard to whether or not someone in fact would be paroled or would not be paroled, Dave, I have no objection to the state of Texas passing a lifewithout-parole statute. As long as that passing of the statute is in addition to the death penalty. As long as juries in the state of Texas still have the right to decide. What Gara would like to have is the death penalty replaced by life-without-parole. .. . LaMarche: If I understood Cappy correctly . . . the idea that somehow there might be a miscarriage of justice or an innocent person might be executed doesn’t particularly trouble him in terms of the way the death penalty operates today. But the fact is, that a couple of professors late last year came out with a major study, an exhaustive study of miscarriages of justice in this country since the turn of the century and they uncovered hundreds of cases in which people were either executed who were later found not to be guilty of the crimes or who were on Death Row awaiting execution. . . . KLBJ: Cappy, let me jump in and maybe on the heels of what Gara just said: if you were to learn that somebody that you prosecuted and was sent to Death Row and was executed and it later turned out that this person was, in fact, innocent, it would not diminish in your eyes the need for capital punishment it would not change your opinion as to the relative fairness or unfairness of such a method of punishment? Eads: No sir. LaMarche: Well it’s nice that we have prosecutors in this state who are so sure of themselves. I prefer Thomas Jefferson’s approach: he would oppose the death penalty until he had the infallibility of human judgement demonstrated to him. The fact is, we are dealing, as I’ve tried to point out a number of times, with a lottery system. . . . Eads: Well I’m more concerned with those who have in fact been convicted and who [have been] released from such sentences as life sentences, who in fact do kill, who in fact do rob and maim. I’m sure that there are facts and circumstances, Gara, of those who are incarcerated in the Texas Department of Corrections who have been convicted of capital murder who have not murdered again. The point is, are we to .. . excuse the act that they committed or are we to substitute their conduct now for the conduct which they had not only been found legally but morally guilty of in our courts of law? Observer: Mr. Eads, you said you’re more concerned with the people that have commit 12 JUNE 17, 1988