The Death Penalty – An Investigator’s Point of View

[Mr. Bruce Sackman is a private investigator specializing in healthcare-related matters in New York City. Currently, he is President of the Society of Professional Investigators Inc., and has recently co-authored a book titled Behind the Murder Curtain]

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“We hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the Justices of the Washington Supreme Court, the state’s highest court, wrote. “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.”[1] [Read the decision here]

The state of Washington recently outlawed the death penalty citing the reasons above.  My own experience with death penalty cases has been somewhat different.

During the course of my 43-year career as a criminal investigator, I had two cases that were eligible for the death penalty. The first being of Dr Michael Swango, the notorious medical serial killer who murdered patients throughout the world.  It is estimated that he killed at least 60 people in the United States, and Africa.

As detailed in my book Behind the Murder Curtain, Swango was convicted in the US Federal Court on Long Island for murdering three patients at the Northport Veterans Affairs Medical Center. Murders that occur on the exclusive territory of the United States, like a military base, are tried in Federal Court and can carry the death penalty; even in a State that has outlawed this penalty.

Dr Swango was a blond hair blue eyed Caucasian and not a member of any recognized minority group. At the same time Dr Swango had been indicted in the US, a court in Zimbabwe requested his extradition to face trial on murder charges in connection with his performance as a physician in that country.

Dr Swango pled guilty to avoid the death penalty, no question about it.  Interestingly, the doctor who had no hesitation in giving his patients lethal injections was afraid of getting a lethal injection himself.  This guilty plea saved the taxpayers millions of dollars in legal costs and put some finality to questions that had plagued the families of his victims for years.  If there was no death penalty option, would have Dr Swango pled guilty, I’m not so sure the answer is yes.

In this case, the mere threat of the death penalty worked to incarcerate an international medical serial killer for life. Had he gone to trial, anything could have happened as we witnessed in the famous OJ Simpson case.

The second death penalty case I had was that of Nurse Kristen Gilbert.  Nurse Gilbert had been employed at the VA Medical Center in Northampton Massachusetts and was suspected of killing about 30 veterans. As detailed in my book, this too was a federal death penalty case in Massachusetts a state that does not have the death penalty.  After a six-month long trail, Gilbert was convicted of murdering three patients.  Then immediately, the death penalty phase of the trial began.  That is a separate trial, all be it with the same judge and jury, to determine if the convicted person should be given the death penalty. The government was required to present its case for the death penalty.  This meant showing pictures of the victims and their families to the jury and arguing why Nurse Gilbert’s crimes warrant her execution.  It’s painful to watch for all in the courtroom.  The families get to testify and give their opinions.  Privately, the investigative team really had no great desire to see her put to death.  She was after all the mother of two children and who knows for sure what affects her execution would have on their future development.

The last woman executed by the Federal Government was Ethel Rosenberg in 1947 for her act of treason by helping give the secrets of the atomic bomb to the Soviet Union.

At the conclusion of this hearing, the jury decided against capital punishment and Gilbert was sentenced to three consecutive life sentences without the possibility of parole.

The defence and even some of the press was ruthless in their criticism of the Government pursuing the death penalty, comparing us to Nazis and being bloodthirsty law enforcement seeking the maximum sentence.  Nothing could be further from the truth.

So after these two death penalty case experiences, what is my view of the death penalty?  I am opposed to it, not for moral or religious reasons nor am I opposed to it for the reasons given by the Washington Supreme Court. I feel it is just too easy to make a mistake and end the life of an innocent person.

Recently there have been several murder convictions overturned in the United States.  In part because of the DNA, and in part because of what was once viewed as accurate forensic science is no longer considered accurate, or even science at all. The US Department of Justice studied forensic science and published a book titled Strengthening Forensic Science in the United States: A Path Forward. This study questioned the validity of much of what is accepted as forensic science in US courtrooms as not really being based on science at all. Some techniques were deemed totally erroneous yet were used to convict people throughout the country.

Not only organizations like the Innocence Project, but several District Attorney’s offices have begun to take a second look at homicide convictions based on inaccurate forensics or questionable eyewitness accounts.  This has resulted in numerous convictions for murder being overturned after decades of incarceration.

In my conversations with forensic toxicologists, investigators, lawyers and judges the majority feel that yes the mere threat of the death penalty can result in a guilty plea, but the actual execution being irreversible, is simply too risky a solution as a form of punishment.

[1] State of Washington v. Allen Eugene Gregory, October 11, 2018, Washington Supreme Court; See Washington Supreme Court strikes down state’s death penalty, saying it is ‘arbitrary and racially biased’, The Washington Post (Oct 11, 2018), https://www.washingtonpost.com/news/post-nation/wp/2018/10/11/washington-supreme-court-strikes-down-states-death-penalty-saying-it-is-arbitrary-and-racially-biased/?noredirect=on&utm_term=.3f947c9a7735.

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