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Filed 6:00 a.m.
01.26.2021

The Case That Made Texas the Death Penalty Capital

In an excerpt from his new book, ‘Let the Lord Sort Them,’ Marshall Project staff writer Maurice Chammah explains where a 1970s legal team fighting the death penalty went wrong.

Jerry Jurek was convicted of killing 10-year-old Wendy Adams in 1973. His case went to the Supreme Court as one of several testing new death penalty laws around the country. Pictured here in 1979, left, and 2015, right.
Jerry Jurek was convicted of killing 10-year-old Wendy Adams in 1973. His case went to the Supreme Court as one of several testing new death penalty laws around the country. Pictured here in 1979, left, and 2015, right.
1.

The town of Cuero, halfway between San Antonio and the Gulf Coast, was small enough that a child’s disappearance would be noticed quickly. In August 1973, a little after dusk, the grandmother of 10-year-old Wendy Adams arrived to pick her up at the pool in the town park. Her clothes were still in a locker. “The child was obedient,” her grandmother later recalled, “and I knew that if she had changed her plans she would have called me.” She alerted the woman behind the park concession stand, who happened to also be the wife of the local police chief. A search began.

Witnesses had seen Adams in the back of a dark blue pickup truck, speeding down the road, screaming for help as her long, blonde hair billowed in the wind. A group of adolescent girls said a 22-year-old cotton mill worker named Jerry Jurek had tried to chase them down in the same truck earlier that day. Late that night, the police picked up Jurek at his parents’ house, and brought him, shoeless and shirtless, to the local jail. Among the arresting officers was Ronnie Adams, the father of the missing girl.

Jurek initially denied involvement, but eventually confessed. He said he’d been drinking and invited Adams to go “riding around” with him. She climbed into his truck and he drove to a bridge just outside of town. “Wendy told me that I shouldn't be drinking, and that I was just like my brother who drinks a lot,” he said in a written confession. “I got mad at her and jerked her off the truck and grabbed Wendy around her throat and choked her to death; she tried to talk to me to get me to stop but I wouldn't listen.” Sheriff’s deputies found her body floating face down in the river below the bridge.

Prosecutors remained suspicious about whether Jurek was telling them the whole truth, and they continued to press him. He gave a second confession. “I did not tell the truth about the conversation I had with Wendy at the river…and I now herein wish to correct that statement,” reads his second confession, using oddly formal language. “I asked her if she had ever had sex before and she said yes. I asked her if she wanted to have sex with me but she said no and started screaming and yelled ‘help’ and ‘please don't kill me.’ So I started choking her.” Jurek was charged with “murder in the course of kidnapping and attempted rape.” Prosecutors decided to seek the death penalty.

This all might have amounted to a straightforward small-town murder case, one of thousands every year resolved through a plea deal or a short trial, and Jurek might have faded into the rising wave of mass incarceration. But one year earlier, the Supreme Court had struck down every death penalty law in the country. State legislators across the U.S. raced to write new laws, and by May 1973, Texas had one on the books. As one of the first death sentences under the new law, Jurek’s case would become a test case, playing a key role in both the nationwide rise of the death penalty and Texas’s place at the center. Since 1972, Texas has carried out more than 500 of the country’s roughly 1,500 executions. The case of Jerry Jurek—and the many what-might-have-beens along his path through the legal system—helps explain why.

2.

Shortly before his trial, Jurek was appointed two attorneys: George Middaugh, a part-time lawyer who also ran a lumber mill, and Emmett Summers III, who had finished law school three months before the murder. Summers had grown up with Jurek’s older brother and knew the Adams family, too. The more experienced attorneys in town didn’t want to be associated with such a horrible crime, he recalled years later, but “a young guy like me could get away with it.” Middaugh “was certainly not a criminal law expert,” Summers continued, “but it was not like anyone else was beating down the door to do it.” (Middaugh died in 2011.)

At Jurek’s five-day trial, his lawyers repeatedly cast suspicion on the two confessions, the first of which had been made after Jurek had spent a night, as Summers recalled, “virtually naked in this cold jail cell.” Jurek had scored 66 on the verbal portion of an IQ test, indicating an intellectual disability. And yet his first confession had him putting strangely mature words in the mouth of a 10-year-old, and his second confession used phrases like “herein” and “my prior statement.” The pathologist who examined Adams’ body found evidence of strangulation, but not of rape.

As Middaugh saw it, his client had no obvious motive to give a second confession, but the prosecutors did have a motive to get one. Shortly before the crime, he told the jury, the Texas legislature had decided that someone could only get the death penalty if they committed a second crime along with the murder, like rape or kidnapping. (It also allowed death if the victim was younger than 6, but Adams was 10.) The second confession implied rape and also removed the mention of Adams climbing into the truck by choice.

Middaugh suggested that the prosecutors had come to a realization. “Oh my god,” he said in court, mimicking their thought process. “The law’s been changed and we don’t have this boy accused of kidnapping anybody or raping anybody and we can’t get the death penalty.”

Middaugh’s suspicions didn’t sway the jury, which found Jurek guilty of murder “in the course of committing or attempting to commit kidnapping and/or forcible rape.” They didn’t need to specify.

The trial then moved into its second phase. The Texas Legislature had written that if jurors were going to sentence someone to death, they needed to decide “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” In other words, the jury had to predict the future.

The longtime district attorney of DeWitt County, Wiley Cheatham, brought to the stand a series of community members who said Jurek had a “bad” reputation. He’d been accused in the past, though not convicted, of sexually assaulting several other children. A psychiatrist who had met with Jurek described him as “sociopathic, exhibiting a number of antisocial traits.” Jurek’s father testified that his son had worked—pumping gas, and on oil and construction crews—and gave most of his paycheck to support the family. Neither side presented an especially rich picture, and the jury sided with the prosecution.

Jurek went to death row. Soon after, Middaugh was disbarred over an unrelated ethics issue. So it fell to Emmett Summers—still less than a year out of law school—to prepare Jurek’s appeal. He knew he could not responsibly do this alone, so he looked for help, and he learned that the Legal Defense Fund (LDF), which had grown out of the National Association for the Advancement of Colored People,* was offering assistance to any lawyer with a death row client, regardless of that client’s race. The LDF was eager to swoop in, knowing that the Jurek case might be crucial to the fate of the Texas law, shaping the course of hundreds of future cases. Although Summers continued to be bothered by Jurek’s confessions, the Texas law as a whole, rather than the details of Jurek’s case in particular, became the focal point of his defense, folded into the LDF’s larger, national strategy.

3.

The architect of the LDF’s effort against the death penalty was Anthony Amsterdam. Although not as well-known today as other LDF legends like Thurgood Marshall and Constance Baker Motley, this Jewish law professor was, in his heyday, considered a genius and a workaholic, the sort of person who dictated legal briefs from memory, cited case law by page number, and made his colleagues wonder whether he ever slept. It was Amsterdam who, in 1972, had stood before the Supreme Court and convinced the justices to strike down the entire country’s death penalty laws. (He declined an interview with me, but gave one to Evan Mandery for the 2013 book “A Wild Justice: The Death and Resurrection of Capital Punishment in America”). He had a particular skill in pulling listeners through dense legal arguments and then rhetorically slamming the brakes. “The figures are perfectly plain,” he said at one such point in the oral argument. “Georgia executes Black people.” Influenced by his arguments, several justices wrote that the death penalty had become cruel and unusual because it was handed down in an arbitrary way, akin to being “struck by lightning.”

Anthony Amsterdam, center, a Stanford University law professor, led a team of lawyers in 1972 to convince the Supreme Court that the death penalty in America should be abolished.

Anthony Amsterdam, center, a Stanford University law professor, led a team of lawyers in 1972 to convince the Supreme Court that the death penalty in America should be abolished.

But as the new laws came into effect and the test cases worked their way through the system, Amsterdam led a team of lawyers who divided up the states, planning how to convince the court that all these new laws violated the Constitution as well—and, by extension, that the death penalty in America should be abolished forever.

The Texas law went to Peggy Davis. She had little in common with Jurek, an impoverished, White, intellectually disabled cotton mill worker who’d spent his whole life in rural Texas. Davis came from a middle-class Black family and had become an academic star: In addition to law, she’d studied philosophy and psychoanalysis and even jazz singing before joining the LDF. She was excited to work with Amsterdam, who was one of her personal heroes, and she got to work studying the Texas law, which was a bit of an anomaly.

Most of the new death penalty laws produced by the states fell into two broad categories. Some states set aside a handful of specific crimes—murder of a police officer, for example—and made the death penalty automatic. Other states held a sort of second trial over punishment, in which the jury would hear lawyers present cases for and against death, and consider specific “aggravating” factors (the defendant killed for money, killed lots of people, etc.) and “mitigating” factors (the defendant had no history of violence, suffered from mental illness, etc.).

The Texas law was a hybrid: There was a second trial, but the jury only had to answer three questions: Was the murder deliberate? Was it unprovoked? And might the defendant be a “continuing threat to society”? In most murder cases, the first two questions were already assumed to be yes based on the guilty verdict, so it was the third question, known as the “future dangerousness” question, that mattered most.

Peggy Davis was in charge of researching Texas law in the Legal Defense Fund's efforts against the death penalty in the Supreme Court in 1976.

Peggy Davis was in charge of researching Texas law in the Legal Defense Fund's efforts against the death penalty in the Supreme Court in 1976.

Because she’d studied psychology, Davis knew there was a whole area of academic literature on predicting who would commit crimes, and she felt it could not be done responsibly. Although Jurek was White, Davis suspected the emphasis on dangerousness would be used to tag Black defendants as especially deserving of death, since they were often perceived, consciously or not, to be more dangerous.

Another problem with the Texas law was that it gave the jury little opportunity to consider evidence that might sway them towards mercy and away from a death sentence—evidence like Jurek’s intellectual disability, or his work ethic, or his love for his family members. But in Texas, because the jury only had to answer three limited questions, they were unable to truly take account of such evidence.

In early 1976, the Supreme Court agreed to hear five cases from five states as a way of ruling on the entire range of death penalty laws that had been passed around the country. Many of the justices’ own clerks were convinced Anthony Amsterdam would lose: surely the court would uphold at least one of the new laws. But there was plenty of room for a partial victory; the court might keep one kind of law while striking down others.

Amsterdam and his team had a difficult strategic choice to make. They could focus on attacking the harsher laws from North Carolina and Louisiana that doled out automatic death penalties and say they restricted the juries’ ability to consider mitigating evidence. The problem with this strategy was that it might nudge the justices to see the laws out of Florida and Georgia, which did allow jurors to weigh evidence more broadly, as acceptable. Amsterdam would in effect be helping to send prisoners in those two states to their executions.

On the other hand, Amsterdam could push the court to strike down all the laws. If he was successful, the death penalty might disappear from the U.S. for good. This was risky: if the court rejected his reasoning, they might uphold all of the new state laws.

Part of the problem was that Amsterdam and the LDF were representing people on death row across numerous states. In order to fight for all of them at the same time, he had to take an all-or-nothing approach. Jerry Jurek was in a way at the center of this legal and intellectual conundrum. If Jurek had his own lawyer, who was looking only to save just his life, the best argument may well have been that the Texas law was too harsh, that the jury who sentenced Jurek had therefore never been given a robust opportunity to weigh whether, given his mental limitations, he perhaps deserved mercy. Might this mean that one lawyer shouldn’t be representing five defendants with five different sets of interests and potential legal strategies? There is no evidence that Amsterdam and his colleagues ever considered this question as they took the more sweeping approach.

Jurek, living in a prison cell 1,600 miles away from the LDF office, could hardly have known he was at the center of this question. Davis, though she was responsible for his case at the LDF, was unable to visit him. “There were conversations about whether you attack the death penalty overall, or whether you attack just the case and do what’s best for Jerry,” Summers, his local lawyer, recalled. Given his mental limitations, “Jerry would not have been able to participate in the conversation.”

As Amsterdam set his strategy for the argument, he relied on Davis and one of her colleagues. They rehearsed arguments, Amsterdam smoking a cigar and working out how to make himself appear reasonable to the justices. Still, Amsterdam did not let the younger lawyers seriously challenge his plans. Not that they would have. “I didn’t feel like I could disagree with Tony,” Davis later said. “He was a phenomenon.”

4.

On the day oral arguments began, in March 1976, dark rain clouds veiled the Supreme Court building. Jerry Lane Jurek v. Texas was argued first, but Amsterdam’s opening was not about Jurek or Texas: he made sweeping arguments about all of the death penalty laws across the country. (A full recording is online.) One justice asked Amsterdam if he thought the death penalty to be cruel and unusual “no matter how serious the offense and no matter how completely a fair trial he may have been given.” Amsterdam said yes. Throughout the argument, the justices continued to give Amsterdam opportunities to compromise—to say some state laws were better than others, or to say that the death penalty could perhaps be preserved for the occasional airplane hijacking or presidential assassination. But he wouldn’t bite.

Instead, Amsterdam argued that every single one of the new laws involved too much human decision-making—prosecutors deciding who to charge, jurors deciding who to sentence, governors deciding whose sentences to commute—and that as a result executions would remain arbitrary.

As an example, he brought up the future dangerousness question in Texas. “The thing that is most devastating is that you can’t even challenge the jury’s finding because the question to which it responds is so meaningless,” Amsterdam said, noting that Jurek had been sentenced to die on the testimony of a few community members who just didn’t seem to like him.

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Justice Lewis Powell Jr. wrote down that he found Amsterdam’s views on the Texas law “fairly persuasive.” But as the argument continued and Amsterdam continued to talk abstractly about all the laws, Powell added to his notes, Amsterdam is “not interested in the fairness of procedure in a particular case.”

Another justice pointed out that human decision-making existed throughout the criminal justice system, not just in death penalty cases. Amsterdam responded, “Our argument is essentially that death is different.” He continued, “Death is final, death is irremediable. ... It goes beyond this world. It is a legislative decision to do something and we know not what we do.”

After he finished, he was followed by John Hill, the attorney general of Texas, who pounded Amsterdam as an extremist who was trying to foist his personal opposition to capital punishment on the American people. He pointed out that among 60 reported cases from Texas, the jury had found that 12 defendants would not be a future danger and spared their lives.

After Hill came Robert Bork, the conservative legal scholar. Years later, during his own confirmation hearings for a spot on the Supreme Court, his views would be tagged as too extreme, but for now he was simply representing a majority of Americans—66 percent according to an April 1976 poll—who supported executions. He jumped on the weakest part of Amsterdam’s argument: By saying that human decisions were a problem, he explained, Amsterdam was actually implying the solution would be a law that totally removes human decisions, that is “so rigid and automatic and insensitive that it would be morally reprehensible.”

Then Bork made his most sweeping argument, that the death penalty was a sign of a healthy democracy at work: “These five cases are about democratic government, the right of various legislatures of the United States, to choose or reject—according to their own moral sense and that of their people—the death penalty.”

Amsterdam returned for a final argument. Justice Powell asked him to pick between the five laws: Which would be the most fair in handing out the death penalty?

“None of them is close enough so that I can give a meaningful answer,” Amsterdam said.

More than 30 years later, speaking with the historian Evan Mandery, Amsterdam noted that at this moment he might have chosen to change course completely, and trying to turn the justices against one law in particular, the law that pretended to give juries a choice but restricted that choice so much that it was practically mandatory—the one from Texas.

5.

“Now I know what it’s like to hear Jesus Christ,” William Brennan fumed to his clerks once he returned to his chambers. Brennan was one of the court’s most liberal justices, and he hated the death penalty, but he was angry at Amsterdam for giving up so many opportunities to appear pragmatic. Still, when the justices gathered two days later, Brennan told his colleagues he’d vote to strike down all five laws and keep the death penalty from returning. Thurgood Marshall agreed. At the other extreme were four justices whose support for the death penalty was firm and who wanted to uphold all the laws: Chief Justice Burger, along with Justices Byron White, Harry Blackmun and William Rehnquist.

Associate Justices William Rehnquist and Lewis Powell, shown here shortly after they joined the court in 1972, were tasked several years later with deciding whether new state death penalty laws violated the Constitution.

Associate Justices William Rehnquist and Lewis Powell, shown here shortly after they joined the court in 1972, were tasked several years later with deciding whether new state death penalty laws violated the Constitution.

That left three whose votes were still in question: Lewis Powell, who had challenged Amsterdam during the arguments, along with John Paul Stevens and Potter Stewart. They were all willing to accept the Georgia and Florida laws, but were troubled by the “mandatory” laws in North Carolina and Louisiana. They saw how Texas, with its three questions and talk of future dangerousness, fell awkwardly between the two approaches, and Stevens and Stewart expressed ambivalence about it. Still, the Texas law appeared to command a majority, as did all of the laws except the one in North Carolina.

But all was not settled; Powell was having second thoughts. One of his law clerks had been arguing it was necessary to preserve an element of mercy in the system and believed that both the Louisiana and Texas laws, like the one in North Carolina, restricted that mercy too much. She thought the Texas law was effectively a “mandatory” death penalty.

Powell reached out to Stevens and Stewart. They met for lunch, and their conversation, held at a popular D.C. restaurant called The Monocle, is lost to history. But the issues they must have discussed remain unresolved to this day. The justices seemed to want to let juries make individual decisions about each defendant, while also ensuring their decisions, in aggregate, were not arbitrary. Most Americans are familiar with the idea that ‘the punishment must fit the crime,’ suggesting that two different people who commit the same crime must suffer the same consequences. Many Americans also believe in mercy, that judges and juries should be able to show leniency based on what they learn about the individual person before them. But how should we respond when their decisions fall along lines of race and gender and class that trouble us? In Mandery’s elegant formulation, “a person cannot be both unique and equal.”

The justices emerged with a plan: all three would oppose the Louisiana law and uphold the Texas one. On a Friday morning in July, the court announced that the death penalty would return, upholding the laws in Florida, Georgia, and Texas, and striking down those in Louisiana and North Carolina.

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The overall message was that juries should be allowed to choose whether a specific person should receive the death penalty, considering the particulars of the crime (Did the defendant seem especially cruel while committing it? Did he show remorse right away?) and of the defendant (What was his childhood like? Had he struggled with poverty or addiction or mental illness?). Defendants should be treated, in Stewart’s words, as “uniquely individual human beings.” In an early draft of the decision striking down the mandatory law in North Carolina, Stewart wrote that jurors should be able to consider “the frailty of human actors,” but he cut the phrase and replaced it with something a bit more poetic and sweeping: “the diverse frailties of humankind.”

The three justices believed the questions devised by the Texas legislature would allow the jury to weigh these factors. Ironically, it was Rehnquist, a conservative who approved of all the laws, who disagreed. He thought his colleagues were fooling themselves by believing the Texas law would really give juries the opportunity to juries to consider the “diverse frailties of humankind.” The Texas law, he thought, was going to turn out to be just as unwavering as the ‘mandatory’ laws his colleagues had voted to strike down.

In many ways, Rehnquist was proven right by history. Although Florida and Georgia’s laws also proved to have flaws, and the death penalty systems in those states were later challenged for arbitrariness and racial disparities, it was Texas that built the country’s dominant conveyor belt to death row. Texas prosecutors grew adept at using the future dangerousness question to scare jurors into handing out death sentences. They enlisted forensic psychiatrists—one with the nickname “Dr. Death”—to make scientifically bogus predictions that defendants would kill again if not sentenced to death.

In 1989, the Supreme Court finally ruled that the state’s law needed to be rewritten, and it was tweaked to allow juries to more fully consider mitigation evidence. But scholars have argued that the continuing emphasis on future dangerousness tends to push jurors away towards picking the death penalty. In 2013, the American Bar Association declared jurors could interpret the concept of future dangerousness “so broadly that a death sentence would be deemed warranted in virtually every capital murder case.” And LDF attorney Peggy Davis’ prediction about race bore out too: By 2000, seven cases had emerged in which an expert witness explicitly predicted that defendants would be dangerous because of their race.

Right after the court ruled, Amsterdam wrote up a request for the justices to reconsider their petitions. Such “petitions for rehearing” are seldom granted, but it was one more opportunity to argue that the Texas law was too harsh, and that Jurek had not been given a robust opportunity to present a case to spare his life. Davis pushed her boss to take this route. She had not slept well in the days after the decision. “Over and over again, during the last week I have thought: What kind of rehearing petition would I write if I represented only Jerry Lane Jurek?” she wrote to Amsterdam in a memo. “And every time I think about that I am troubled because I think that a much stronger attack on the Texas statute could be made.” She thought the Texas law was “unconscionably mandatory” and would not allow a jury to consider the “diverse frailties of humankind” mentioned by the court. Amsterdam did write in his petition that the Texas law was “Draconian” and “forbids the consideration of any but the narrowest factors of mitigation,” but he didn’t fully separate the Jurek case from the others.

6.

Shortly after Justice John Paul Stevens retired, in 2010, he gave an interview and said that after 35 years on the court, there was only a single decision he regretted: Jurek v. Texas. “I think upon reflection, we should have held the Texas statute...to fit under the mandatory category and be unconstitutional,” he told his former colleague Sandra Day O’Connor. “In my judgment we made a mistake on that case.”

Scholars were rough on Amsterdam, calling his legal strategy “a cautionary tale about cause lawyering” and his attitude “tone deaf to the changing tune of the country.” Executions resumed in 1977, ending a decade-long hiatus brought about by the legal battles.

But Davis did not need to worry: Jurek survived. Even after she left the LDF, in 1977, the organization kept fighting his case. A couple of years later, judges on the Fifth Circuit Court of Appeals ruled that his confessions could not have been truly voluntary, especially because Jurek’s “verbal intelligence is limited” and he was “less likely to be able to understand his right to remain silent.” His death sentence was thrown out, and the same year lethal injections began, in 1982, he pled guilty in exchange for a life sentence.

Though his name was attached to one of the most significant moments in the country’s legal history, Jerry Jurek began living out his quiet life in a Texas prison. As his hair turned gray and wispy, he continued to slick it back into the style of his youth. He worked in a prison kitchen—avoiding the dayroom because the televisions and loud fans and shouting prisoners stressed him out—talked to his cellmate, and wrote letters with doodles of cartoon dogs along the bottom of the page. He spoke with a clipped, wised-up drawl, though his mind had departed significantly from reality. “Mine is the one that got everyone off death row,” he recalled incorrectly, during a 2015 interview. He maintained that he was totally innocent of killing Wendy Adams, and was the victim of a conspiracy between his lawyers and multiple local authorities. He said there is a missing document that will prove it, if only someone will go find it in a town called “Eldorado.” “If everything goes right,” he said, “I might be out of here pretty soon.”

Every so often, Jurek would come up for parole, and Brandi Adams Garza, his victim’s little sister, would write a letter to the parole board describing the toll the murder took on her family; her father quit his job as a police officer, and her mother suffered a mental breakdown. “I think that the death penalty was appropriate to start with and, had it been followed through with,” Garza told the Victoria Advocate, “it would have eliminated a lot of stress on my dad, my family, myself, my brother.”

As the death penalty system ground into motion in the late 1970s, the LDF realized its work was only beginning. Every case would now be a smaller battle in a bigger war of attrition. Hundreds of men and women sentenced to death would need lawyers to attack those sentences one by one and stave off execution. Sometimes, their cases would end up back at the Supreme Court, which would be tasked with deciding not whether the death penalty as a whole was constitutional, but rather whether one element of a trial violated a defendant’s rights. The court would go on to rule in ways that both helped and hurt death row prisoners, but the overall effect would be to further entrench the punishment.

There would be a lot of relationships like the one between lawyer Davis and client Jurek. Often the racial dynamic would be flipped, with White lawyers and Black clients. The lawyers would develop arguments and study arcane legal precedents while their clients sat in death row cells for years and years, waiting for the day they might lose their cases and their lives. And what haunted Peggy Davis would haunt the many lawyers who would come after her. They would wonder, as she had wondered: What else could be done?

Adapted from “Let the Lord Sort Them: The Rise and Fall of the Death Penalty,” published by Crown on Jan. 26, 2021.

Rachel Siegel contributed reporting.

Excerpt has been updated to reflect that while the Legal Defense Fund is an outgrowth of the NAACP, it had become a separate organization by the time of the events.