30-Year Prosecutor Shares Thoughts on the Death Penalty and a Career of Law Enforcement

Editor’s note: The following is a lightly edited interview with Creighton C. Horton II, a retired Utah prosecutor who spent 30 years prosecuting cases in Utah in Salt Lake County and in the Attorney General’s office. His recent book, A Reluctant Prosecutor: My Journey describes his experiences during his career including his evolution on the death penalty. Mr. Horton’s op-ed about problems with the death penalty was featured earlier this year in the Salt Lake Tribune. The views expressed below do not necessarily represent Libertas Institute.

Libertas Institute: Tell our readers a little bit about yourself and your career as a prosecutor in Utah.

Reluctant Prosecutor bookCreighton Horton: After graduating from UCLA Law School, I came to Utah and got a job as a prosecutor in the Salt Lake County District Attorney’s office. I worked as a prosecutor there for nine years and then transferred to the Utah Attorney General’s Office, where I worked for 22 years. When I was in law school I was interested in becoming a defense attorney, not a prosecutor, but through happenstance I went into prosecution and ended up becoming involved in a series of high profile cases. I prosecuted about a dozen capital murder cases—serial killers, child killers, sexually deviant killers, religious fanatic killers, and mentally deranged killers. Some of those I helped convict have been executed or are currently on death row. I recently published a book about my career, entitled A Reluctant Prosecutor: My Journey.

LI: You said in your book that you wanted a job where you help people. How do you think your career as a prosecutor helped you to do that? 

Creighton Horton, UCLA Law School

CH: Well, I think that there are a number of ways a prosecutor can help people. You play a key role in the criminal justice system, by bringing to justice those who victimize others. And if you’re conscientious about what you do and are careful in your charging decisions, you can ensure that you’re not accidentally prosecuting somebody who’s innocent. Additionally, you play a role in assisting victims and family members of victims. In murder cases, I tried to identify with the surviving family members and to think how I might feel if I were in their shoes. Family members can often feel powerless and anxious, being unfamiliar with the legal system, and unsure about the whole process.

I made it a practice to get to know victims’ family members so they understood that I cared about their cases and would do the best job I could, and I committed to be accessible to them if they had any questions or concerns.

LI: In the book you talk about turning down a lot of jobs at private law firms holding out instead for more public service-oriented work. It seems you were deeply committed to using your law degree for good and not just to make money. Why?

Retiring state prosecutor Creighton Horton stands in the state Capitol. He has spent 31 years in the legal system. (August Miller, Deseret News, June 2009)

Retiring state prosecutor Creighton Horton stands in the state Capitol. He has spent 31 years in the legal system. (August Miller, Deseret News, June 2009)

CH: In the book I talk about the influence of my father who was a medical doctor. He told me something when I was about 10 or 11 years old that made quite an impression on me. Back then doctors would make house calls and sometimes I would go with him on those visits. We had gone to the home of an elderly woman who had been a patient of my dad’s for a long time, and instead of waiting in the car he asked if I wanted to come inside with him. So I went in and met this woman. She seemed really delighted that Dad was there. I could tell that the visit was more than just a doctor visit to write a prescription. It was meaningful to her.

My dad didn’t approach it as a job where he just moved from patient to patient. It was much more personal than that. So, after we left, we drove home and when we got there, Dad turned to me and said: “You know, there are lots of ways of making money in this world, and everybody has to make a living, but I hope you’ll choose some type of work where you’ll be helping people, rather than just making money.” That stuck with me.

LI: How did you reconcile this desire with your career in law?

CH: During law school I began to feel that much of legal practice is so contentious—it didn’t fit well with my personality. I was more of a consensus-builder and a peacemaker than somebody who enjoyed the competitive arena of a courtroom. I kept thinking that if it was just about making money, I would rather make money in some other way  I didn’t want to just work as a private attorney advancing the goals of whoever was paying me. Eventually, I found my way to prosecution.

Being a prosecutor, you work for the people in general, not for individual clients. It’s a luxury in the law to be in a position like that where you aren’t just representing individuals or private interests, but are working for the common good, to accomplish justice. That is the goal of prosecutors and that is something that really resonated with me. I could look at my job in terms of “what’s the right thing to do?”, “what’s the fair thing to do?”, “what’s the just thing to do?” as compared to merely asking “who’s paying me and what do they want me to accomplish?”

LI: You talk in the book of having a change of heart on the death penalty, why?

Capital defendants receive a lot of publicity, and they become household names.

CH: A year and a half into my career as a prosecutor, I was assigned to assist in the prosecution of Joseph Paul Franklin–a racist serial killer. He was accused of killing two young black men while they were jogging with white women in Liberty Park in Salt Lake City. He had shot them with a high-powered rifle after setting up in a field across from the park. I worked on that case and then a couple of other capital cases. By the time I had worked on three capital cases, I started to feel less and less comfortable working on them, for a number of reasons.

First, capital defendants receive a lot of publicity, and they become household names. Basically, those charged with capital murder almost become rock stars, in the sense of how much press attention they receive. I didn’t like that part of it.

Second, I didn’t like the fact that there could be political considerations as to whether or not the office was going to pursue the death penalty. In fact, in one of the cases I worked on, the defendant was quite unlikely to get the death penalty given his lack of prior record and the circumstances of the case. However, it was an election year and the county prosecutor didn’t want to be criticized for being “soft on crime.”  So, even though the case could have been settled if it hadn’t been an election year, it went to trial instead and dragged on longer than it needed to. In the end, the jury predictably went with a life sentence, which we could have accomplished without going to trial.

Third, I didn’t like the fact that capital cases that result in the death penalty languish in the courts for years—in fact, decades. I still remember early in my career going into the office of the attorney in the Utah Attorney General’s Office who handled capital case appeals. He had a flowchart that went all around his wall mapping out all of the different levels of state and federal appeals that applied to capital cases. Because of those delays, I came to feel that our capital punishment system made a counterfeit promise to the families of victims, and set them up for unrealistic expectations and an emotional roller-coaster ride.

As I mention in the book, once a jury comes back with a verdict of death, that’s likely to be the last satisfaction a victim’s family is going to have for decades. From that point on, they’re going to have to endure round after round of appeals and challenges to both the conviction and sentence of death. I felt it was cruel to victims’ families to have to live with that uncertainty, delaying so long them getting the closure that would allow them to move on with their lives.

LI: Is it possible to streamline the trial and appeals process in death penalty cases to make it shorter or cheaper?

Creighton HortonCH: About 10 or 15 years ago, when I was working in the Attorney General’s office, the chief of the Appeals Division went up to the Legislature and basically made the case that the system was broken and that we didn’t really have a viable death penalty system in Utah, unless a convicted murderer, like Arthur Bishop, volunteered for execution. The Appeals Division chief suggested that the Legislature either change the system to shorten the delays, if they could, or do away with capital punishment and just have life in prison without parole instead. So, our dysfunctional death penalty system was brought to the attention of the Utah Legislature years ago. And years later nothing has really changed.

If you streamline [the process] too much you may end up in a situation where an innocent person is put to death.

The reality is that there are constraints beyond the power of the state legislature. There are federal constitutional constraints that govern the federal appeals process and if you try and streamline the state system you still can’t control the federal system.

More importantly, even if you could streamline the system, if you streamline it too much you may end up in a situation where an innocent person is put to death. In the 80’s before DNA was available, a man named Kirk Bloodsworth was wrongly convicted of a murder he didn’t commit in the state of Maryland. If the process had been streamlined then and he had been executed quickly, Kirk, an innocent man, would have been put to death before he had an opportunity to be exonerated through DNA evidence, which only became available years after he was convicted. In the Bloodsworth case, DNA eventually not only exonerated Kirk, but also proved conclusively that another man was the actual killer. I think we can all be grateful that Kirk was not on an expedited path to execution.

LI: Do you think the risk of convicting an innocent person is real?

[DNA exonerations] shook up my view of the fallibility of our system.

CH: Yes, it’s absolutely real, and it has happened not only to Kirk Bloodsworth, but also to many other people. Back in the early 90s when we started hearing about DNA exonerations in other states, It was a big eye-opener to me and I’m sure to other prosecutors as well, and it shook up my view of the fallibility of our system.

One of the biggest causes of wrongful convictions is mistaken eyewitness identification. People are sometimes absolutely convinced that they can accurately identify the perpetrator of a crime but, tragically, they identify an innocent person, who is then convicted on the strength of that “compelling” eyewitness testimony. That’s what happened to Kirk Bloodsworth. Someone saw a man in the woods near where the little girl’s body was found, and then a police artist made a sketch based on the description of that witness. The sketch was shown on the TV news and someone called in saying they thought the sketch looked like their neighbor, Kirk Bloodsworth.

It may seem inconceivable that somebody who had nothing to do with a crime like that could be convicted in our system that requires proof beyond a reasonable doubt, but it does happen.

Senator Urquhart, who sponsored the bill to abolish the death penalty in Utah, made the point during the legislative session that government doesn’t do anything perfectly, and since there is no perfect system, there’s always the possibility that you could convict an innocent person, and sentence him or her to death.

Moreover, in the Bloodsworth case, it initially appeared that the DNA evidence collected from the scene had been lost and that there would be no way to test for DNA. Fortunately, they eventually found and tested the evidence. Without that, Kirk could never have proved his innocence, and the actual killer would never have been brought to justice.

LI: What purpose does the death penalty serve in our justice system today?

CH: In terms of deterrence, it creates “specific deterrence,” meaning that it’s effective at preventing that specific person from killing again. However, most arguments about deterrence concern deterring other people from killing out of fear of receiving the death penalty. I see no compelling evidence that it works as a deterrent in that way. Many heinous murders are committed in jurisdictions with the death penalty. Even in those jurisdictions, it is hard to predict who will get the death penalty and who won’t. Add to that the never-ending appeals, and it’s hard to gauge any real deterrent effect on other prospective killers.

When you think about any potential societal benefits for executing a murderer, I don’t think they outweigh the negatives.

When you think about any potential societal benefits for executing a murderer, I don’t think they outweigh the negatives. Given the problems with the death penalty, and knowing there’s no such thing as a perfect system, if you favor capital punishment, you have to be willing to tolerate the possibility that some innocent people will be executed for crimes they didn’t commit. If you believe that no erroneous executions are acceptable, you start to see the death penalty in a different light. That is where I have come down on the issue.

LI: Tell us about your personal experience with capital cases in Utah. How many cases were you involved in prosecutions for?

Horton2CH: I was involved in about a dozen capital cases in Utah. Some of the defendants I prosecuted were Joseph Paul Franklin, Arthur Gary Bishop, Norman Newstead, Ronnie Lee Gardner and Ron Lafferty.

We convicted Joseph Paul Franklin for the Utah murders but he got a life sentence here. He was eventually executed in another state for a murder he committed there.

Arthur Gary Bishop was convicted of capital murder for the kidnapping, sexual assault and murder of 5 little boys. After he was convicted and sentenced to death, he volunteered to end his appeals early. The court ordered a psychological evaluation before allowing Bishop to waive his appeals, to ensure that he wasn’t making that decision because he was mentally ill. The psychologist reported back to the judge that he believed Bishop was making a rational decision, on the basis that Bishop viewed decades in prison with no hope of ever getting out as being worse than being executed. So Bishop was allowed to waive his appeals, and was executed.

Norman Newstead participated in a triple murder in Cedar City. Newstead wasn’t caught until he had fled to Oklahoma and killed a cab driver there. While he was convicted of the triple murders in Utah, he was executed in Oklahoma for the murder there.

I also worked on the appeal of Ronnie Lee Gardner, countering his mental claims, and he was eventually executed. Those are the cases I worked on involving defendants who have been executed.

Ron Lafferty was convicted of the murders of his sister-in-law and her baby, and was sentenced to death. He committed his crimes in 1984, and after more than three decades, he still doesn’t have an execution date. The appeals process is continuing. It’s an example of what victims’ family members have to endure in our capital punishment system. Lafferty was first tried and convicted in 1985, but his case was reversed on appeal due to concern over whether he was competent to stand trial. After he was declared competent to stand trial, we tried him again in 1996, and he was once again convicted and got the death penalty; but, 20 years after his second trial, his case is still on appeal.

LI: Does the death penalty accomplish justice?

How do you determine what justice is?

CH: Well, it’s a really interesting question. How do you determine what justice is? When you look at cases where people commit horrible crimes, it’s easy to think that the only justice would be for that person to be executed for their crimes. But when you look at all the different scenarios of cases that come through the capital system, there isn’t much consistency. You see people who kill multiple victims not get the death penalty even when the evidence is compelling and the prosecution seeks it. You also see people who kill a single victim who do receive the death penalty. And there are concerns that, across the country, racial minorities get the death penalty more frequently than others.

Interestingly, when you think about how Arthur Gary Bishop was allowed to waive his appeals and be executed quickly, there are some who might say he actually got off easier because he hasn’t had to sit in a cell for the past 28 years thinking about what he did, and the consequences of his actions. So justice is a complex idea, and it can mean different things to different people; but for me, if someone who would otherwise have been executed spends the rest of their life in prison with no possibility of parole, I think that is sufficient for justice.

LI: What would you tell those who support the death penalty today?

I was really surprised when I found out last February that the Utah Legislature was actually considering a bill to abolish the death penalty.

CH: My approach in the book isn’t to preach or tell others what they should think or do. I didn’t write the death penalty chapter as an advocacy piece, but as the story of my own personal experiences, and how they shaped my evolving views on capital punishment.

Certainly many people’s minds are already made up on the topic of the death penalty. But, for those who are still open to thinking about it, my chapter might be thought-provoking. I wrote it several years ago, at a time when I thought we were a long way away from serious debate about whether Utah should abolish the death penalty.

I was really surprised when I found out last February that the Utah Legislature was actually considering a bill to abolish the death penalty, and that it was happening right at the same time my book was going to publication, so I decided to get more involved in publicly talking about my experiences and my views. I contacted Senator Urquhart, went on a talk radio program with him, and wrote an op-ed piece for The Salt Lake Tribune supporting the bill to abolish capital punishment in Utah.

LI: What are some of those misconceptions people might have about the death penalty?

CH: The reality of how long these cases take on appeal is something people should understand. Many respond that we ought to just shorten it, but it’s just not as simple as that. We can’t put an arbitrary cap on appeals or cap the number of years for the process. Each case is unique and justice demands full due process. When death is on the table you have to ensure the utmost fairness of the proceeding.

The impact of the never-ending appeal process on victims’ families is the most unfortunate part of the whole process. In my view, the family members who get the best outcomes are those whose cases are resolved quickly, resulting in sentences of life without parole.

Another significant thing people need to understand is how it is possible for an innocent person to go through our justice system and be convicted of a murder that someone else committed. It is sobering to think that such a thing could happen given the high expectations on our system, and the high burden of proof on the prosecution to establish a person’s guilt beyond a reasonable doubt.

The impact of the never-ending appeal process on victims’ families is the most unfortunate part of the whole process.

You can have completely honest witnesses testify that they are 100 percent certain of their identifications, and still be mistaken. People need to understand that reality, because to many people it seems counterintuitive – what could be more solid than an eyewitness to a crime identifying the perpetrator?

LI: As a seasoned retired prosecutor what advice would you give to a new prosecutor just starting their career?

CH: I would tell them they need to take very seriously their “gatekeeper” function of determining who gets charged with crime and who doesn’t. Police officers can arrest people, but only prosecutors have the power to bring formal charges. Sometimes police officers feeling pressure to solve cases put pressure on prosecutors to file criminal charges against suspects when the prosecutors don’t believe the evidence is sufficient.

I remember back before Arthur Bishop was caught and police were still trying to find the person responsible for the disappearance of so many young boys, there was an incident where an elderly man in Salt Lake walked past an area in a restaurant where young children were having a birthday party.

One of the children started to walk beside him as he was leaving the restaurant, and although the man’s actions were ambiguous at best, people felt he may have intended to walk out with the child and abduct him. So, the police were called and the man was arrested. When they brought the case to the prosecutor’s office, the detectives were convinced that they had finally captured the man who was responsible for the disappearance of the missing boys, but when you looked at the evidence it was just too speculative. There was no way you could make a solid case from the evidence they had. Nevertheless, the pressure was intense and the prosecutor pursued the case at the insistence of the police. The man was eventually acquitted at trial—predictably so. And of course about a year later Bishop confessed to the killing of all five missing boys.

When a prosecutor succumbs to police pressure and files a weak case, there’s the risk of a wrongful conviction at trial. When that occurs, it’s not only a terrible injustice against the innocent defendant who has been wrongfully convicted, it also means that the real perpetrator is still at large to commit further crimes with impunity. In a murder case, for example, once a person has been convicted of that crime, no one is out looking to solve the case anymore, and the practical effect is that the actual killer is home free.

In the second chapter of my book I shared an article that I wrote for prosecutors that was published by Utah Prosecution Council. It was entitled, “Reflections of a Senior Prosecutor.” I emphasized that a prosecutor has to resist pressure to file cases before the evidence is solid, and sometimes that’s difficult to do. I described a case where a prosecutor didn’t think he should file a murder case because the evidence was lacking. The police and victim’s family called a press conference in which the family accused the prosecutor of victimizing the family worse than their son had been victimized by his brutal killers. They organized a public campaign against that prosecutor, and succeeded in getting him voted him out of office. They got someone else elected who was willing to file the case on flimsy evidence, and not long after it was filed, the case fell apart. The case was solved several years later when DNA evidence established that somebody else had committed the murder, and that the original suspect had nothing to do with it.

So I would tell new prosecutors to take seriously their gatekeeping function and not succumb to pressure to file cases that aren’t ready to be filed, lest they inadvertently prosecute the innocent.

Another thing I would emphasize to young prosecutors is that, while they are advocates for the state, they are first and foremost “ministers of justice.” While defense attorneys represent their clients, prosecutors don’t just represent the police or even the victims—they represent the people at large. Their role as ministers of justice must trump their advocacy roles whenever there’s conflict between the two. That sometimes means being willing to re-evaluate a case after charges have been filed, if new information surfaces that casts doubt on a defendant’s guilt. It’s not all about winning, it’s about doing justice.