Posted: Jan. 18, 2012
By Celia Cohen
"I was the no vote," said Tom W.
With that candor, the collective anonymity of the vote by the five-member Board of Pardons to recommend clemency for Robert Gaddis, a condemned murderer, turned into names.
Tom W. had owned up to being Tom Wagner, the state auditor. It did not take a Nobel Prize winner in mathematics to do the arithmetic, or a doctor of philosophy to discern how the others had voted.
The four votes in favor of commuting the death sentence to life in prison came from Matt Denn, the lieutenant governor who is the board president, along with Leo Strine Jr., the chancellor, Jeff Bullock, the secretary of state, and Chip Flowers, the state treasurer.
Wagner is the only Republican on the board. He is also the only downstater, showing once again that the farther south in Delaware it goes, the more conservative it gets.
The board's recommendation was announced Sunday and affirmed Tuesday by Jack Markell, the first-term Democratic governor who wrestled mightily before concluding he should halt the execution that was set for Friday -- "although I am not free from doubt."
The Board of Pardons laid out a rationale for its vote but officially never intended to disclose how its members voted, even though they were carrying out a constitutional responsibility of their office, even though their decision was of great public interest, even though there is nothing in the state constitution or their own rules to prevent them.
Never mind it was a case of life or death. They simply do not. Tradition.
In addition to Wagner, only Denn was willing to acknowledge how he voted.
"I was one of the four yes votes. My personal policy has always been, if anyone asks, I would tell them. This is the first time I've been asked," Denn said.
Leo S. and Chip F. hid behind surrogates to say they would hide behind the anonymity of the vote and not discuss it further. Jeff B. invoked his self-proclaimed right to remain anonymous by not bothering to respond to a request for an interview.
Strange about Leo S. He is the chief judge of the Court of Chancery, arguably the most storied state court in the whole country with its far-reaching rulings on business law. He would not think about mucking around with a penny of a faceless corporation's financial holdings without explaining his decision and putting his name to it.
But this? Go fish.
Still, there is reason to think Leo S. was the member whose doubts about the looming execution flowed most deeply from doubts about the death penalty itself. As the board wrote in its recommendation for commutation:
"One of us believes even more fundamentally that once a prisoner has been incapacitated and poses no threat of future harm to society, then there is no moral justification for taking his life. When the taking of life is not required as a matter of self-defense, that member believes that one cannot ethically or morally take that act."
Who but a judge would be so nuanced?
The power to pardon goes back to the kings and queens of England and passed to the colonies, where royal governors had the authority. After independence, the power continued in the president and the governors. The first presidential pardon was issued by George Washington in 1794 to the leaders of the Whiskey Rebellion, an armed uprising against a new tax on whiskey.
Here in Delaware, the governor's power was lessened when the Board of Pardons was created by the Delaware Constitution of 1897. If the board recommends clemency, the case goes to the governor for a final determination. If not, the case does not even get to the governor, and the board is the last word.
Denn, who is writing an article about the Board of Pardons for the Delaware Law Review, a bar association publication, said the panel was envisioned as both a check on the governor and a means of providing background information for the governor's decision.
The board considers a staggering array of offenses -- from murder, like this one, to petty acts like fishing without a license or letting a dog run at large.
The board seems designed for its deliberations to come more from the gut than from law books, although in its current configuration, Denn and Flowers happen to be lawyers.
As Wagner sees it, the board has the lieutenant governor, the treasurer and the auditor as three "super-citizens representing the citizens," as well as the secretary of state representing the governor and a judge representing the judicial system, although one who sits on a court that does not hear criminal cases.
"I'm the only auditor in the country with the responsibility. I'm the only auditor with the power to execute. Occasionally I have to remind a Cabinet secretary," Wagner quipped.
He also has the courage to stand up and be counted.