Most federal district judges will never preside over a death penalty case, as it should be. I presided over two lengthy death penalty trials, Honken’s in 2004 and his co-defendant Angela Johnson’s in 2005. It was reported that I did not lose any sleep over Honken’s execution. That is true, but in the weeks that have since passed, it’s struck me as important to make clear why. The reason matters greatly if our society is to continue to employ the death penalty in its system of justice.
Of course, Honken’s crimes were horrendous. He brutally executed two witnesses against him, with the assistance of Johnson. The witnesses were Terry DeGeus and Gregory Nicholson. The methamphetamine conspiracy case against Honken and Johnson was ultimately dismissed because the Justice Department no longer had the witnesses it felt necessary to convict him.
In addition, Honken executed Lori Duncan, 31, and her two daughters, 6-year-old Amber and 10-year-old Kandace, who were present when Honken and Johnson kidnapped Nicholson. Duncan had just met Nicholson less than two weeks earlier. Honken shot each victim in the head and buried them in a field, where they remained until they were discovered seven years later. DeGeus was shot and his skull savagely beaten with a baseball bat by Honken after Johnson lured him to a remote area. His body was then buried in a different field for seven years until it was also discovered.
Opinions on both sides of the death penalty debate are strongly held. I respect that. As a former civil liberties and criminal defense lawyer, I’m sure it would surprise few that I am personally opposed to the death penalty. But as a judge, it’s the law that matters, not my personal views. In federal court, the only time a jury decides punishment is when the Justice Department authorizes a prosecution to proceed as a death penalty case. This is exceedingly rare — again, as it should be.
However, I authorized millions of dollars for the defense of Honken and Johnson. After all, the prosecution had spent much more on its very thorough investigation and processing of these two cases. After years of legal wrangling, in 2012, I set aside Johnson’s death penalty, but not her guilt, and sentenced her to life in prison. I affirmed Honken’s guilt and death penalty verdict. So did the myriad federal judges who reviewed his case in the lengthy appellate and post-conviction process.
Honken’s acts were pure evil. His various schemes to kill prosecutors and more witnesses and to blow up the building where he thought evidence was stored, plus his numerous escape plots, added to the malignancy and maliciousness of his intentions. Even Honken’s last words, seconds before the lethal dose of pentobarbital was administered to him, showed no remorse or apology to the victim’s families.
So, no, I did not lose any sleep over the execution Dustin Honken. But I did lose a lot of sleep ensuring that Honken received the fairest trial possible and that the jurors were repeatedly told that he was entitled to the full benefit of the presumption of innocence unless and until the government could prove him guilty beyond a reasonable doubt.
My thoughts the week of his execution were with the families of the victims; the defense lawyers who strived mightily to save Honken’s life and vigorously pursued his many appeals; the conscientious jurors who endured the many months of trial, listened carefully to all of the evidence and had to make the life-or-death decision on Honken’s fate; and the excellent prosecutors and law enforcement agents who spent years of their lives bringing Honken to justice.
But this was just one case among many. There are currently about 60 inmates on the federal “row.” And this year, there are more than 2,600 inmates on state death rows. Thus, over 99 percent of those on death row received that penalty in the state courts, mostly in the South. Examples are numerous of defense lawyers showing up for trial ill-prepared or even sleeping through parts of trials and failing to discover important witnesses. No state I know of is willing to commit the type of resources for the defense I authorized for both Honken and Johnson.
And failing that, I remain unalterably opposed to the death penalty.