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opposed to the death penalty . . . in any fair justice that I’m afraid many people think circumstance you can conceive. . . . we are now administering. ted the crime. Do you think there’s any chance to find [common] ground where you can be as concerned with the criminals and also equally concerned with the possibility that someone innocent may be on Death Row? Eads: Dave, I don’t think it’s that we are unconcerned with someone who may in fact be innocent [but] is found guilty. It’s not a lack of concern, it is that the reality of that situation is so incredibly minute, is so incredibly foreign, that to factor that in as a realistic reason for being opposed to the death penalty is non-existent. We’re not insensitive to that, we’re not unaware of that. Our system is not unaware or insensitive to that, which is why we have such incredible lengthy appeals of anywhere from one to ten years in death penalty cases. Now you can’t say that the system is insensitive to it and the system does not try to in every way prevent that from happening. RACIAL DISPARITY LaMarche: Well let’s factor something else in: let’s factor in the fact that black people in this society have a much higher rate of being homicide victims than white people. I think some 60 percent of homicide victims in this country are black; homicide is the leading cause of death in this country for young black men aged 18 to 34. And yet it happens to be the case that it is unusual in the extreme for someone who kills a black person, particularly for a white person who kills a black person, to end up on Death Row anywhere in the country. . . . I don’t mean at all to imply that any conscious decision of prosecutors or juries, any consciously racist act, accounts for this. But it is a very disturbing disparity, it ought to be disturbing to everybody. Of course we have racism in our society; it’s riddled in the criminal justice system, but I don’t think anybody ought to pay with their life because of that racism. Audience member: I have a question for Mr. Eads. And that is, given Justice Brennan’s dissent in the McCleskey case in which he cites statistics that Mr. LaMarche just raised, that argues pretty well that the death penalty is selectively applied to a minority, does that not make it a civil rights issue as well as a civil liberties issue and is that not a strong argument for reform or abolition of the death penalty? Eads: Justice Brennan . . . and Justice Thurgood Marshall . . . are against the death penalty, period. Absolutely and unequivocally in any situation under any circumstance for any reason. They are totally and absolutely opposed to the death penalty. Of the nine justices on the United States Supreme Court, those two men, regardless of public opinion, regardless of the law of the land, are totally and absolutely LaMarche: In the first place, yes it’s true that Justice Brennan and Justice Marshall, like the ACLU, oppose the death penalty in all ways, but I keep hearing Cappy Eads cite someone’s ultimate opposition to the death penalty as [if] somehow that discredits them from making any other kind of argument about why the death penalty is deficient on other grounds. It so happens that Justices Blackmun and Stevens do not “Race plays a pernicious role in the system of capital punishment in this society.” take the position that the death penalty is unconstitutional and yet they were part of the same minority in the McCleskey case. Where McCleskey leaves us is a set of facts that was very clearly stated to the Supreme Court that showed that race plays a pernicious role in the system of capital punishment in this country. . . . Observer: Mr. LaMarche, given that it’s true that what you’re saying that some people who may deserve the death penalty don’t get it and that there is a disparity between blacks and whites, is that actually in itself . . . an argument against the death penalty? LaMarche: Let me just take a personal moment and say this: I’ve always been on a very gut level against the death penalty. I can’t explain it any more than I can explain why somebody feels on a gut level the death penalty is justified. And I don’t attempt on that basic gut level to argue with somebody. I can respect the fact that somebody says, my moral system . . . leads me to believe that somebody who kills ought to pay with their life. I think that’s inarguable. Nobody’s ever changed my mind and I’ve never changed anybody else’s mind on that issue. And I used to think the moral issue was paramount. I must say that my experience in Texas has changed my way of thinking. I still have that same gut feeling, but I now think of the moral issue as almost irrelevant to the discussion. I’ve seen enough about how the death penalty works in practice, about who ends up on Death Row, about how the cases proceed, how the factor of race plays a role. . . . I don’t any longer have the luxury, knowing what I do about the way the system operates, you know, of thinking that somehow it could ever operate in a way that could administer the kind of Eads: Gara, I don’t think the first thing that we should have to ask in a murder case, as a state’s attorney . . . is, well in that case where those defendants murdered three people, prior to their deaths made them drink liquid Drano, prior to their death raped one, and prior to their death kicked a ballpoint pen through the ear canal of another were those defendants black or were they white? I don’t think that’s a decision that I should make, I don’t think that’s a question I should ask, and I think that’s beyond the facts of the case. . . . I can only speak to you of at least the gut level that you cannot feel and that is this: from having been there, from having had to make that decision of whether or not to seek the death penalty, that those are not issues that you can be preoccupied with. . . . If the defendant in that particular case is black or he is white, so be it. LaMarche: The salient statistic is not the color of the person put to death, although it is true that on Death Row in the nation and in Texas, blacks are very much overrepresented compared to their general numbers in the population. The more troubling figure, as I’ve been trying to stress, is the race of the victim. Once again, you take on the one hand the fact that in a hundred executions in this country since 1977 when we resumed executions, only a handful, a couple of people, have been put to death for murdering a black person, and yet black people are 60 percent of the homicide victims in this country. That gulf has got to be very disturbing to people. Observer: I guess what I’m asking, Gara, is, isn’t that essentially an argument to make the death penalty less discriminatory? LaMarche: It’s an argument that says, look, we know that the death penalty . . . in the society which we now live in, which is an imperfect society . . . can we afford to continue to put people to death, knowing the way that system operates? And I say no. I don’t think it can be made to operate fairly. . . . My message, I suppose, to people out there is: you don’t have to agree with me in my gut feeling that it’s wrong for the state to take someone’s life, but you have an obligation to pay some more attention to how that system actually works. And after you look at it, ask yourself whether you still think it operates fairly and whether we wouldn’t be better served by substituting something else for the death penalty and getting past that issue and on to address some of the fundamental problems in our society. KLBJ: Cappy, I wish I could ask for your comment but we’re running up against CBS and we’re going to have to say goodnight. THE TEXAS OBSERVER 13