Temporal Arbitrariness: A Back to the Future Look at a Twenty-Five-Year-Old Death Penalty Trial

Mary Kelly Tate *

This symposium essay is a thought experiment—a “back to the future” re-imagining of the capital murder trial of Tommy David Strickler, an indigent man deemed borderline mentally retarded.[1] In 1990, Strickler was convicted and sentenced to death for the robbery, abduction, and murder of a young African American woman.[2] On July 21, 1999, Strickler became the sixty-eighth person executed in Virginia in the death penalty’s modern era.[3]

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*  Associate Clinical Professor of Law, Director of Institute for Actual Innocence. J.D., 1991, University of Virginia. I thank Professor Corinna Barrett Lain, my dear friend and colleague, for her generous spirit and invaluable assistance during the writing process. I also extend my appreciation to my research assistant Zachary MacDonald for his able research and editing support.

[1].    See Strickler v. Greene, 57 F. Supp. 2d 313, 318 (E.D. Va. 1999) (granting Strickler’s counsel’s application for lawyer’s fees in post-conviction clemency proceedings in recognition of Strickler’s indigent status); see also Ian Record, Strickler Gets Death Sentence, Breeze, Sept. 20, 1990, at 2 (“Strickler has an IQ of 74, Warren testified. People with IQs of 70 can be considered mentally retarded, she said.”).

[2].    See Strickler v. Greene, 527 U.S. 263, 266 (1999).

[3].    Searchable Execution Database, Death Penalty Info. Ctr., http://www.deathpe naltyinfo.org/views-executions?exec_name_1=&sex=All&state%5B%5D=VA&sex_1=All& federal=All&foreigner=All&juvenile=All&volunteer=All (last visited Feb. 27, 2015) (listing Strickler as the sixty-eighth person executed in Virginia since 1976). Furman v. Georgia is a 1972 Supreme Court decision holding, through a fractured plurality opinion, that arbitrariness in imposing the death penalty rendered it unconstitutional in violation of the Eighth and Fourteenth Amendments. 408 U.S. 238, 240 (1972) (Douglas, J., concurring); id. at 295 (Brennan, J., concurring). In 1976, the Supreme Court overturned its Furman decision with Gregg v. Georgia, holding that new statutory schemes adding procedures for courts and juries in applying the death penalty limited its arbitrariness, which made it permissible under the Eighth and Fourteenth Amendments. 428 U.S. 153, 169, 204–07 (1976). Accordingly, the “modern era” refers to cases decided after the Supreme Court’s decision in Gregg v. Georgia.


Making Sure We Are Getting It Right: Repairing “The Machinery of Death” by Narrowing Capital Eligibility

Ann E. Reid *

Can we fix the American capital punishment system? Do we want to? Or should we simply abolish the death penalty altogether, as so many countries encourage us to do?[1] These were questions that many Americans asked themselves over the course of 2014 as botched execution followed botched execution, and as multiple innocent men were exonerated after sitting on death row for years.[2] Despite the best efforts of the members of the federal and state departments of justice, we continue to face serious constitutional questions when we look at death penalty-related issues, including the estimated rate of false convictions,[3] the disproportionately high exoneration rate for death penalty inmates,[4] racial, social, and geographical disparities in capital conviction rates,[5] and the complicated and messy process of execution itself.[6]

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*   J.D. Candidate 2016, University of Richmond School of Law. B.A., 2013, University of Virginia. I would like to thank Kristina Ferris for her thoughtful comments and suggestions throughout the writing process, and the rest of the University of Richmond Law Review staff and editorial board for providing me with this opportunity.

[1].    Cap. Punishment Project, ACLU, How the Death Penalty Weakens U.S. International Interests 6–7 (2004), available at https://www.aclu.org/files/FilesPDFs/ idp_report.pdf.

[2].    See, e.g., Michael Biesecker, Innocent NC Inmate Free After 30 Years, WFLA.com, http://www.wfla.com/story/26444799/nc-inmate-to-adjust-to-life-outside-after-30-years (last updated Sept. 18, 2014); Mark Gillispie, Judge Dismisses Two Men Charged in 1975 Slaying, Ohio.com (Nov. 21, 2014, 10:00 AM), http://www.ohio.com/news/break-news/jud ge-dismisses-two-men-charged-in-1975-slaying-1.543007; Michael L. Radelet, Examples of Post-Furman Botched Executions, Death Penalty Info. Ctr. (July 24, 2014), http://www. deathpenaltyinfo.org/some-examples-post-furman-botched-executions.

[3].    Samuel R. Gross et al., Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 Proc. Nat’l Acad. Sci. 7230, 7234–35 (2014).

[4].    Samuel R. Gross & Barbara O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical Legal Stud. 927, 942 (2008); Samuel R. Gross & Michael Shaffer, Nat’l Registry Exonerations, Exonerations in the United States, 1989–2012 19 (2012) (finding that between 1977 and 2004, fewer than 0.1% of prisoners had death sentences, yet 12% of all exonerations occurred in capital cases).

[5].    See Scott Phillips, Status Disparities in the Capital of Capital Punishment, 43 L. & Soc’y Rev. 807, 830–31 (2009) (racial and social disparities); see also Scattered Justice: Geographic Disparities of the Death Penalty, ACLU (Mar. 5, 2004), https://www.aclu.org/ capital-punishment/scattered-justice-geographic-disparities-death-penalty (geographical disparities); The Clustering of the Death Penalty, Death Penalty Info. Ctr., http://www. deathpenaltyinfo.org/clustering-death-penalty (last updated Jan. 1, 2013) (geographical disparities).

[6].    See Radelet, supra note 2.


The Twilight Zone: Perspectives From a Man on Death Row

Interview with Gerald Dean Cruz *

The following interview was conducted through a series of written correspondences between Gerald Dean Cruz and Leah Stiegler, the Allen Chair Editor for Volume 49 of the University of Richmond Law Review. This exchange was reproduced, in excerpts, for the sole purpose of giving readers a rare glimpse into the perspective of a death row inmate. The views expressed below do not reflect those of the University of Richmond Law Review or its editors. Please note some answers were heavily redacted at the discretion of the Law Review.

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* Gerald Dean Cruz is a prisoner on death row at the San Quentin Prison in California. He was sentenced to death on October 26, 1992, as a result of being found guilty for his involvement in four murders committed on May 20, 1990, in Salida, California.