Passing sentence on capital punishment

Next Sunday is International Anti-Death Penalty Day. OK, I’d better qualify that one: it won’t actually be International Anti-Death Penalty Day, but to my mind it ought to be. On that date it will be exactly eighty years since an immigrant German carpenter was sent to the electric chair in Trenton, New Jersey. The previous year, 36-year-old Bruno Richard Hauptmann had been convicted of the kidnapping and murder in March 1932 of Charles Lindbergh jr, the 20-month-old son of popular aviator Charles Augustus Lindbergh. Hauptmann, however, did not do it. They called the murder the Crime of the Century, and the ensuing trial the Trial of the Century, so by right of logical exaggeration the frying of Hauptmann deserves the title Miscarriage of Justice of the Century.

Hauptmann’s trial was a complete travesty of justice, in which police brutality and malpractice, petty politics, and a media circus combined to exact blood lust by killing an innocent man. To employ an over-used cliché, his was a case of being In the Wrong Place at the Wrong Time, but also falling victim to bad luck and personal mistakes.

Hunterdon Courthouse courtroom, scene of the 1935 trial of Bruno Richard Hauptmann
Hunterdon Courthouse courtroom, scene of the 1935 trial of Bruno Richard Hauptmann

On the evening of 1 March 1932 Charles Lindbergh jr was snatched from his cot from an upstairs room in the family home in Highfields, New Jersey. Whoever took the toddler left a crudely-made ladder leaning against the house. A ransom note discovered by the crime scene demanded $50,000 for the child’s safe return. Through the efforts of an intermediary, which came in the form of a retired school teacher called J F Condon, the ransom (consisting of identifiable gold-certificate bills) was paid in instalments to a member of the kidnapping gang, known as Cemetery John, who regularly met Condon in Woodlawn Cemetery in New York. Despite repeated assurances from the gang that the boy was alive, Charles Lindbergh jr’s body was discovered just over two months after his abduction.

Two years later, in the autumn of 1934 Hauptmann was arrested in New York and charged with the Lindbergh baby’s kidnap and murder. Police were led to his home after a tip-off from a garage attendant who had received gold-certificated ransom money from him in return for car fuel and then noted down his car license plate. That, however, was as far as the evidence against Hauptmann went. A police search of his home found over $14,000 in gold-certificate bills. Hauptmann had discovered the money in a package by accident, after a business partner called Isidor Fisch had asked him to hang on to the package for safekeeping before travelling to Europe. Hauptmann later discovered that Fisch was a conman who had swindled him and many others out of thousands of dollars. Fisch later died of tuberculosis shortly after arriving in Europe. Needless to say, Hauptmann denied knowing anything about the Lindbergh abduction, even after police officers had beaten him up and threatened his wife and child.

While failing to declare swindled money to the police was obviously a crime, as was Hauptmann’s lie to his interrogators that he had withdrawn the money from his bank account, being in possession of kidnap ransom money does not necessarily a kidnapper, much less a murderer, make. What ought to have saved Hauptmann from the chair was his alibi: on 1 March 1932 (the date of Charles jr’s abduction) he had been working for the New York firm Majestic Apartments between 8:00am and 5:00pm – in other words, he could not have been anywhere near Highfields, New Jersey at the time of the abduction – and the company could produce timesheets to prove it. The timesheets were duly handed to the police, but when Hauptmann’s defence team approached the police for the timesheets, the sheets in question somehow could not be found (of course). To make matters worse, in the hysterical trial in Flemington, New Jersey, that ensued, chief prosecutor David Wilentz (who, judging by his statements to the jury, would have made a better theatre actor than a lawyer) stated that Hauptmann had actually left work early, yet somehow got away with failing to produce any evidence for this claim. Moreover, the police bribed prospective witnesses, including the intermediary J F Condon, to go on the record to say that they had seen Hauptmann in the Highfields area when the crime was committed. Condon, for his part, initially told detectives that Hauptmann was not Cemetery John, to whom he had been handing the ransom; when the police threatened to charge him with being an accessory to the crime unless he identify Hauptmann as Cemetery John, Condon obligingly changed his mind. Virtually nobody at the time bothered to address what should have been the most searching question of all: how was it that the abduction of the child of one of America’s most famous men, then the issuing of ransom demands and the subsequent collection of ransom money, could all be the work of just one man?

Amid the perjured witnesses and a noisy and theatrical prosecution team who appeared to be revelling in the international media attention, Hauptmann was duly convicted of Charles Lindbergh jr’s kidnap and murder on 13 February 1935. A plea for a re-trial from New Jersey state governor Harold Hoffman, one of the very few major public figures at the time who could see the case against Hauptmann for the farce that it was, was vetoed by the trial judge on a technicality. It took some courage for Hoffman to voice his doubts about the case so publicly: one newspaper editorial at the time declared him to have ‘dishonoured himself, disgraced the state and converted New Jersey into national laughing stock‘ (Who knows, maybe the editor in question had not paid close enough attention to how the prosecution had behaved during the trial), and called for him to be impeached. His final lifeline gone, Hauptmann was electrocuted on 3 April the following year, tearfully protesting his innocence to the very end – even though he had been offered the commution of his sentence to a life jail term in return for admitting to the crime.

Of course, Bruno Richard Hauptmann was the not the first, and would not be the last, victim of a wrongful conviction in the last century or so. We in the UK have had more than our fair share of such cases: Edith Thompson (1923), Timothy Evans (1950), Derek Bentley (1953), Liam Holden (1973), Stephen Downing (1974), the Birmingham Six, the Guildford Four (both 1975), the Maguire Seven, Stefan Kiszko (both 1976), Sion Jenkins (1998), and Sam Hallam (2005), to name but a few. The point is that in the first three cases the eventual realization that such convictions were wrong was obviously too late for the convicted.

The death penalty was abolished in Britain in 1965 and in Northern Ireland in 1973. Since then, despite the claim of the pro-execution camp that most people in the UK want hanging to be brought back, support for the return of hanging has in fact spiked and dropped either side of the 50 per cent mark. Such peaks and troughs have depended on whether a murder or a miscarriage of justice has been making big news at the time of polling. At the very least, at a time in which the news is dominated by Islamic terrorism and commemorations of the Easter Rising in Dublin and its aftermath, there does need to be a debate on capital punishment, if only to shatter the myths of its effectiveness that its supporters repeat as if they were facts.

In an edition of BBC1’s Question Time in September 2011, Private Eye editor and Have I Got News For You panellist Ian Hislop pronounced himself firmly against the return of hanging:

For fifty years Private Eye has, pretty much in most issues, exposed a miscarriage of justice, and a lot of them have been murders. Over the years large numbers of these cases have been found to be entirely wrong… So we would have killed those people, and in some of those very high-profile cases which involved terrorism cases, we would have made very dangerous new martyrs by executing people who turned out not to have committed the murders involved.

Doubtless that in the days after the Easter Rising, General Maxwell and his staff thought that executing sixteen of the Rising’s ringleaders would stop Irish republicanism in its tracks. A century on, Irish republicanism is alive and well, and whatever your position on the Easter Rising, Pearse, Connolly, MacDonagh et al are celebrated as heroes even by moderate nationalists. More recently, the Islamist extremists responsible for the attacks in Paris, Ankara and Brussels have shown themselves to revel in death. Any such jihadist who could be caught before blowing himself up, only to be sentenced to hang, could be presented by extremist imams as yet more evidence of The West Always Having It In for Islam.

As for the argument that the death penalty deters others from committing serious crimes, quite apart from the fact that the murder rate in the United States is still incredibly high, particularly in states that still have capital punishment, this argument misses the point that people who commit serious crimes tend not to behave rationally and so are not in a position to think about what awaits them if they get caught. As the satirist Charlie Brooker put it in his 2011 series How TV Ruined Your Life, there is a tendency to imagine murder cases in real-life are exactly how they appear on the small screen:

Murderers [on TV] are routinely depicted as criminal geniuses playing a diabolical game of cat-and-mouse with a troubled police detective wearing the worried expression of a bloodhound opening a court summons. Yes, according to Television, most killers are artisan killers, whose every offering deserves to be analysed for literary merit, and they are markedly more vicious than almost any of their real-life equivalents… Of course, most real-life murderers aren’t unstoppable killing machines, but somewhat pathetic individuals who have done something awful in an ill-thought-out panic.

Furthermore, as the late Ludovic Kennedy, a man who knew more than most about wrongful convictions, put it, in his book “Thirty-Six Murders and Two Immoral Earnings”…

[I]t is a fact and not an opinion that states that exercise the death penalty have higher homicide rates than those that have abolished it; and it is also a fact and not an opinion that after an execution the homicide rate in that state tends to increase.

Eighty years on, it is obviously too late for Richard Hauptmann, but it is worth stopping for a few minutes next Sunday to think about his undeserved fate. If, as seems likely, the pro-Brexit camp win June’s referendum, the next target on their shopping list could be the UK’s adherence to the European Convention on Human Rights, and the death penalty could well come up again in the national conversation. Mahatma Gandhi’s dictum about how an Eye for an Eye will ultimately leave us all blind has been quoted often enough. An arguably more apposite thought is offered by the aforementioned Sir Ludovic, who insisted towards his twilight years that the adversary/accusatorial system of justice, as practised in the UK, US, Canada and Australia (unlike in continental Europe, where the inquisitorial system is in place), is fundamentally flawed:

It is a system in which the accused, in one way the most important person in court, in that he/she has more to gain or lose than anyone else, is somehow seen to be the least important (the more so when not called to testify), an object rather than a subject; in which the prosecution often fail to supply to the defence, as they are obliged to, evidence that might be helpful to them; in which a spurious sense of drama is created which encourages counsel to strike postures and attitudes and even indulge in sarcasm; in which counsel see it as one of their tasks to destroy the credibility of the other side’s witnesses, whether on an issue germane to the verdict or not; in which some questions which could provide a shortcut to the truth are not allowed to be asked and others which are asked are not allowed to be answered; in which the evidence of witnesses is shaped by what the prosecution and defence want them to say; in which other witnesses whose evidence might help to shape the jury’s verdict are not called for fear they will say the wrong thing… Is this really the best we can do?