In mid-January 2017, a couple of days after Mark Gonzalez was sworn in as Nueces County’s new district attorney, a deputy prosecutor approached him to ask how the office should handle the Arturo Garza case. Garza, who has reportedly admitted to beating his pregnant girlfriend to death in May 2015, had been charged with two counts of capital murder under Gonzalez’s tough-on-crime predecessor, Mark Skurka — one charge for Susanna Eguia, who was seven months pregnant at the time of her death, and another for the fetus. After defeating Skurka in the Democratic primary and winning the November 2016 election, it was up to Gonzalez whether to seek the death penalty for Garza.
“Part of me was, like, ‘Oh, wait, you guys don’t figure that out?’” Gonzalez told me. It was the first time he truly felt the weight of the decision.
Two years later and halfway through his first term, Gonzalez says he’s still conflicted about the death penalty. In an interview last week, he said he wants to know what the people of Nueces County believe before deciding whether his office should keep seeking death sentences. It’s a question he thinks a jury can help him answer.
Gonzalez will soon get what he calls his first “test case,” with jury selection scheduled for Garza’s trial Wednesday. Gonzalez, who says he’ll participate in the trial, told me he even planned to admit to jurors that he’s not sure whether Garza should die before ultimately asking them to decide. “I can’t say I’m pro-death,” Gonzalez told me. “I can’t say I’m pro-anything, but I am very pro-giving this and entrusting this to the jury to make the decision.”
Death penalty attorneys say Gonzalez’s wait-and-see approach shirks a basic responsibility of the office he holds: determining and advocating for a punishment he thinks is appropriate. “When a jury walks into that courtroom, the expectation is that the prosecution is a set of experienced law enforcement officials who have worked on a series of cases and have decided that death is appropriate in this particular one,” said Amanda Marzullo, executive director of Texas Defender Service, a nonprofit legal group with investigators assisting Garza’s defense team. “[Gonzalez] can’t relegate that responsibility to the public. That is his job.”
Gonzalez’s tortured stance on the death penalty complicates his image as the tattooed star of the “progressive prosecutor” movement. In November, the former defense attorney posed shirtless for a Washington Post story heralding a new wave of district attorneys who are “freezing the use of the death penalty, decriminalizing marijuana possession, diverting low-level offenders to classes and treatment instead of jail, seeking less severe sentences, and vowing to aggressively prosecute police-involved shootings.”
Except some of the DAs under that “progressive prosecutor” umbrella have kept pursuing death sentences. That’s despite a larger national trend away from capital punishment and a growing consensus that it’s exorbitantly expensive, doesn’t deter crime and, like many tools of the criminal justice system, has been disproportionately wielded against people of color.
Still, contributing to that downward trend in capital sentences are prosecutors who, while they haven’t sworn off the death penalty entirely, promise to use it sparingly. For instance, Harris County DA Kim Ogg, who has pushed marijuana decriminalization and bail reform, has said she’ll seek the death penalty only in the most extreme cases. After taking office Ogg established a capital review committee of senior prosecutors with death penalty experience to help vet cases. Newly elected, reform-minded DAs in Dallas and San Antonio have said they’ll be similarly cautious.
Gonzalez said he consults with prosecutors in his office whenever they charge capital cases, but described no particular criteria or process for deciding when to pursue a death sentence. Texas Defender Service counts six cases, including Garza’s, where Gonzalez has kept death on the table as a possible punishment during his first two years in office, a number Gonzalez doesn’t contest. “We know when it may be an option that we consider, and we definitely know when it’s not,” he said when I tried to clarify.
Garza’s defense team is baffled by how Gonzalez has handled the case. Richard Rogers, a Corpus Christi lawyer appointed to represent Garza, said that for months his client has been willing to plead to life without parole in order to avoid trial and a possible death sentence. “You have a defendant who is willing to take life without parole, he has not shown himself to be a violent person in prison who has attacked other people, and so I feel the state is almost obligated to allow him to do that,” Rogers told me. “Because bottom line: Either way the guy is going to die in prison.”
While Garza has admitted to a horrific crime, Marzullo said it’s not the kind of case that would normally result in prosecutors seeking death. “You see terrible, multiple-victim cases out there in neighboring counties with conservative prosecutors who are not seeking death in those cases,” she said. “I cannot think of another prosecutor in the state of Texas who would seek death in this case.”
Marzullo also bristles at the idea that Gonzalez could decide whether to keep pursuing death sentences based on one randomly selected jury’s reaction to one tragic case, as if that illustrates the larger voting public’s views on capital punishment. Since the death penalty hasn’t been waived in the case, jury selection will likely weed out anyone harboring serious doubts about it. “It’s death penalty proponents, by and large, who typically end up on that jury,” Marzullo said. “His job is to make a determination about the punishment he thinks is right. It’s a moral question, it’s a complicated question, but it’s a question he clearly is not taking seriously.”
Gonzalez himself questions whether he’s taking the right approach, at one point telling me, “Sometimes I ask myself whether this is kind of like the cowardly way to do it, or maybe even the chickenshit way of doing it.” He admits to having deep reservations about the death penalty, and he hired a first assistant prosecutor who won’t touch cases involving capital punishment out of moral opposition. During our talk, Gonzalez told me one of his mentors gave him the book Just Mercy by Bryan Stevenson to read before his swearing-in. In the book, the Equal Justice Initiative co-founder chronicles his fight against the injustices of the justice system, including his work helping free a wrongfully convicted black man who’d been sent to death row. “I don’t want any of those things I read about in that book to actually happen in my county,” Gonzalez told me.
Gonzalez sounds more like a prosecutor now than when he first took office. Toward the end of our interview, he told me that talking with victims and their families has been the hardest part of the job. He said he often thinks about his young daughters and how he might want the harshest punishment if anyone ever harmed them. Despite his comments about putting Garza’s fate in the jury’s hands and letting the public decide, he seemed to acknowledge that the decision was ultimately his.
“It’s a shitty place to be in, I’ll tell you that much,” he said. “You gotta make that decision, and sometimes you wish you didn’t have to. Like I said, it’s a shitty place to be.”
Editor’s Note: This story originally described Texas Defender Service as providing “attorneys on Garza’s defense team.” TDS investigators are assisting Garza’s team, not acting as attorneys. Additionally, Gonzalez defeated Skurka in the Democratic primary, not the general election. The Observer regrets the errors.