by Eve Mykytyn*
The New York Times recently ran a story entitled “Texas Stays Execution of Jewish Man After Judge is Accused of Anti Semitism.” The headline and the story imply that Randy Halprin, was, although possibly guilty, the victim of anti Semitism.
Let’s look at the story a little more carefully. (To the extent this is a disclaimer of bias, I am generally opposed to capital punishment and have wasted much time unsuccessfully working to keep the state from killing convicted criminals.)
First the Crimes:
In 2000, seven prisoners, the “Texas 7,” escaped and went on a crime spree in which they killed a young policeman. They were captured and in 2003 six of the seven were tried in front of a jury, convicted (the seventh killed himself) and sentenced to death. Four of the Texas 7 have been executed.
The two remaining Texas 7 alums, Halprin and Patrick Murphy each claim not to have actually shot the officer, although the group also ran over the officer after they shot him. In any case, the jury did not have to decide who fired a gun, all six men were convicted under a Texas statute, similar to laws in forty five other states for ‘felony murder’ that hold a defendant who commits a serious felony liable for any deaths that result from that felony.
When he escaped Halprin was serving a 30-year sentence for killing an infant.
The Buddhist
Murphy’s attorneys argued that Murphy, a Buddhist, could not be executed without a Buddhist spiritual advisor present. The U.S. Supreme Court agreed with Murphy and issued a rare stay of execution on the basis of religious discrimination. Justice Kavanaugh wrote for the court: “The choice of remedy going forward is up to the State. What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.” That is, the state need not provide a religious advisor, but if it does, it must provide such an advisor for all faiths. The cure for this constitutional defect in Texas law is clear and not unduly burdensome on that state.
The Jew
Halprin claimed his conviction was tainted by the trial judge’s racism and anti Semitism as first discovered in an interview Judge Cunningham gave to the Dallas Morning News. In it, the judge admitted he had offered a reward to his own children if they married a White, Christian member of the opposite sex.
Halprin’s claims of judicial racism were buttressed by claims made by individuals who knew the Judge that: shortly after the trial he had described Halprin as “a fuckin’ Jew” and “goddamn kike” and had said that Jews had to be “shut down,” had called some of Halprin’s co-defendants “wetbacks, ” said that people of color would “go down” in his courtroom and had made other racist remarks about African Americans, Jews and Latinos.
Judge Cunningham has denied using racist language and said his personal views never affected his decisions during court proceedings.
Claiming newly discovered evidence, Halprin’s lawyers appealed to the Federal district and appeals courts, claiming to have been unaware of Cunningham’s racism until 2018. The issue of potential anti Semitism provoked 100 of Texas’ Jewish attorneys to be named as supporters and to sign Halprin’s appeals brief. The Washington Post supported the appeal and helped their case by misstating that his original conviction was for “injury to a child.” The ADL was even inspired to file an amicus, or “friend of the court” brief to provide historical context for the anti-Semitic terms attributed to the judge.
The Federal court ruled that the claim that Cunningham had been a racist in 2003 did not constitute ‘new’ grounds, but even if it did, it did not matter. The court said that a new trial can be granted only upon evidence of bias sufficient to make it likely a jury would change its verdict; as the Austin Chronicle stated, “the judges ruled that Halprin’s jury would still have found him guilty even if they’d known of Cunningham’s bigoted view.” Halprin filed an appeal to the US Supreme Court for October 2019.
But on October 4th, the highest court in Texas found that Judge Cunningham was an anti Semitic racist and issued a stay of execution.
A trial court will now have to decide whether Halprin is entitled to a new trial.
The action of the Texas High Court is problematic for a number of reasons, and I find the widespread support among the Jewish legal community and the Jewish press for a double murderer equally troubling. Texas executes more of its citizens than any other state (565 since 1976), that alone ought to be grounds to be wary of a Texas death penalty case.
Assuming, for argument’s sake, that Judge Cunningham is a racist, no finding was made or even alleged that Cunningham’s personal views had an impact on his courtroom. Halprin’s lawyers explicitly granted that they saw no such effect by their claim that Cunningham’s beliefs constituted new evidence ‘discovered’ fifteen years after the trial.
Halprin was convicted with six others, all of whom should have an equal claim under this finding except that 4 of them have already been executed. And if Cunningham’s racism in 2018 tainted an otherwise sufficient trial in 2003, what of all the other trials over which Cunningham has presided? Should anyone convicted in such a trial be entitled to a new trial? Or is a new trial to be granted only to Blacks, Latinos and Jews, or only to Jews? Is it now the rule that discrimination is a problem only against an ethnicity that has a powerful voice in government? Do the 100 Jewish lawyers who signed the brief regularly sign such briefs for non Jewish defendants?
How are we to go about treating the personal racist views of a public employee? Perhaps in obnoxious cases we should seek their removal from office, but will appeals courts be forced to review all of the trials over which such a judge has presided? Shouldn’t the law require a racist effect, or are we to subject all judges (and jury members?) to a test for political correctness?
Capital punishment lawyers love to find successful grounds for a new trial, especially grounds that may have the effect of delaying or stopping other executions. Here, the grounds of a ‘racist’ judge without observable impact are wide indeed: its effects are by definition unknowable, its cure elusive and it will likely throw a large number of verdicts (and not just for death penalty cases) into question. I will certainly cite this case in Texas, and since Texas has more executions and therefore more capital punishment law than any other state, I will try it as possibly persuasive in other states as well.
River to Sea
Uprooted Palestinian 
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