Two Boys & the Death Penalty

Capital punishment is dying in the U.S. There were only two executions last year, just one the year before. A concerted attack is being waged on grounds that it is cruel and inhuman vengeance, does not work as a deterrent and is otherwise archaic. Suits by the American Civil Liberties Union and the N.A.A.C.P. Legal Defense Fund have blocked all executions in Florida and California until the question of whether or not the death sentence is still constitutional can be resolved in court.

Public feeling, too, has shifted. Gallup reports that more Americans now oppose capital punishment than favor it, and 13 states have abolished it in whole or part. In the light of such changes in the law and in the people, the situation last week of two of the nation's newest and youngest (17 and 16 years old) residents on death row focused new attention on the issue.

One for the Gas Chamber. When Gary Lee Miller, 17, was charged with the bludgeon murder of Judy Lee Ziegler, 20, few of the folks in Allegany County, Md., doubted that he was guilty. After all, he knew Judy and had been seen walking along the same road that Judy had been driving on the murder night. What's more, he was a strange, unpopular kid and had been convicted of rape three years before. There was so much prejudice against him that his court-appointed attorney doubted that an impartial jury could be impaneled. Rather than risk it, he asked that his client be tried before two Allegany County circuit court judges.

Miller was extensively questioned after being picked up; at the trial, police said that he had made a confession. They also said that he did not ask to see a lawyer or call his parents, and that he had been properly informed of his rights. His lawyer said he hadn't been, and pointed out that he had refused to sign the supposed confession. Nevertheless, using notes, the county investigator at the trial simply read aloud everything that he claimed Gary had admitted. The defense objected, but was overruled.

According to the investigator, Gary said he had been hitchhiking and Judy picked him up. She drove him to the local dump, a favorite petting spot, and made advances. After he tried but was unable to have intercourse, she jumped out of the car and began screaming. Gary then began slashing her and, according to his alleged confession, she smashed her head on some rocks. Police also pointed to bits of supporting circumstantial evidence. A folding linoleum knife was found near the body, and Gary had bought such a knife in a local store. Also, his version of what she screamed ("I'm going to die! I'm going to die!") coincided exactly with what residents heard.

Old Scratch. Gary did not take the witness stand and his attorney merely objected to prosecution allegations and procedures. The two judges took just 20 minutes to convict Gary. But even some of those who thought him guilty felt that flaws in the case had not been adequately brought out. They noted that Gary's parents produced an identical knife and said it was the one he had bought. As for the screams, the police had already interviewed some witnesses by the time they questioned Gary, and it therefore could have been the police who provided Gary's version of the screams.

A number of fingerprints other than Judy's were found in the car, but none of them was Gary's. A spot of blood on the steering wheel was never analyzed to discover whether it matched Gary's type or Judy's. It was pointed out in court that he did have scratches and bruises on his body that might have been inflicted in a struggle, but the county medical examiner said that he had been ordered not to determine their age. It seemed to him, however, that one scratch at least was more than a few days old.

Despite the doubts, Presiding Judge Harold Naughton remains outspokenly convinced that the boy is guilty and deserves the gas chamber. "There was no defense at all," he says, and the death penalty "has been a real deterrent to teen-age crime."

One for the Electric Chair. On the surface at least, Fred Esherick Jr., 16, is nothing like Gary Lee Miller. He had never been convicted of any crimes. He was not from the hill country, but from a clean-cut suburb of Cleveland. What Fred did was to kill his father. And he admitted it.

As he testified in extraordinarily grim detail at his trial, he did it with a souvenir bayonet that he kept hidden under his mattress. Laying it on a nearby chair one night, he called in his mother to trim his toenails. For no particular reason, he said, as she knelt to clip "I picked up the bayonet by the blade, and I swung at her. I tried to stop myself when the handle hit her on the back of her head. She fell forward on her hands and knees and screamed for Dad. As I started to run from the room, I slipped on the rug in the doorway and ran into my father, Dad fell to his knees, the bayonet still in him." Young Fred next beat his mother some more, then loaded both bodies into the car and dropped them into a nearby stream. After that, he went roller-skating. The cold water revived his not-quite-dead mother, however, and she lived to testify against him.

Planned Knockout. Esherick's defense was that killing his father was an accident. Mrs. Esherick did not think so. As she told it, her husband had rushed in after she was hit with the bayonet, and son and father had wrestled until she "saw Freddy draw his arm back." She went to the living room, picked up the telephone, and then "Freddy grabbed me from behind. I dropped the phone and passed out." When she came to, her husband's body was stuffed in beside her in the car. "I couldn't figure out where I was. I yelled, 'Where am I? Help me!' Then I heard Freddy's voice say: 'You're in the trunk. Dad is dead, and I'm going to kill you too.' "

Esherick was an adopted child (at age one), and he had generally been a good student and son. But in the year or so before the murder, he had grown increasingly resentful of strict parental regulations. His grades dropped, and he was discovered stealing money on his newspaper route. The day before the murder, he asked a friend to help him knock out his parents so he could run away. Recalled the friend: "I thought he was out of his tree."

The jury thought he was guilty, and after long deliberation it decided against a recommendation of mercy. That made the death penalty mandatory. "I think there were about eight ballots," remembers one of the jurymen. "I was for mercy at first, but the more we talked it over, the more it seemed there just wasn't anything good about the boy."

Now, as Esherick sits on death row in the state penitentiary, he still doesn't "know why it happened. I just wanted to get away," he says; "they were always on my back about smoking or something."

Noisy Outcry. There has been outcry over both sentences. Capuchin monks have petitioned Maryland Governor Spiro Agnew on behalf of Miller, and the noise over the jury verdict in Esherick's case was so frenetic that one juror complained: "It seems the boy is getting a great deal of sympathy and the jury, which did its civic duty, is being portrayed as the guilty party."

Even without the outcry, chances are that neither will ever be executed. Governor Agnew is a committed opponent of capital punishment, while Ohio Governor James Rhodes is thought likely to commute Esherick's sentence if all his appeals fail. Neither state has put a man to death in five years, and no one under 18 has been legally put to death anywhere in the U.S. since 1954.

This file is automatically generated by a robot program, so reader's discretion is required.