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The process by which our justice system identifies those who will suffer a state-authorized execution and those, who once identified, will be spared, fills our law books and provides evocative subject matter for editorial writing, films and novels. Ex Parte Randy Ethan Halprin (in the Court of Criminal Appeals of Texas, NO. WR-77,175-05) is one such example.

On Dec. 13, 2000, Randy Ethan Halprin along with six other inmates escaped from the Texas Department of Criminal Justice Connally Unit. They stole firearms and ammunition from the prison and made their way to Irving, Texas, where, on Christmas Eve, they robbed a sporting-goods store.

A bystander alerted by a commotion within the store called the police. Officer Hawkins arrived first. Before the officer could stop his car or unholster his firearm, the escapees opened fire and killed him. They escaped before other officers arrived. This was not a nuanced crime.

The seven were ultimately found in Colorado about a month later. Six were captured—one shot himself to avoid capture. Halprin admitted to voluntarily participating in the armed robbery but claimed that he never fired his gun and was, therefore, less culpable than the rest of his accomplices. Under Texas law, not actually firing a gun during the commission of a robbery where an accomplice did is not a defense to a murder charge. At best, not firing had the potential that a jury might mitigate his sentence and not impose a death sentence. The trial was about sparing Halprin's life. The defense was unsuccessful. On June 12, 2003, the jury sentenced to Randy Halprin to death.

The defense offered a miscellany of witnesses whose central message was that Halprin had a "good heart" growing up and did not get into any more trouble at school than any other young boy his age. (This contrasted with the fact that Halprin was serving 30 years for beating and breaking the limbs of a child that he was babysitting.) The defense also described the prison in which he would be confined and sought to educate the jury about the prison conditions Halprin would be in if sentenced to life imprisonment.

During the trial, the judge, Vickers "Vic" Cunningham, repeatedly rebuffed Mr. Halprin's attempts to introduce an expert's prison "ranking document" that rated the escapees' leadership qualities and showed Mr. Halprin "never exhibited leadership qualities," was "[v]ery submissive," and was the "weakest" of the members. In newspaper articles before the trial and in testimony during the trial and during its sentencing phase, Halprin's Jewish identity was a subject of comment.

The ruling severely limiting the defendant's expert's testimony, and several other discretionary rulings by Judge Cunningham favoring the state were the subject of a number of appeals and post-conviction proceedings in state and federal courts—all to no avail. Halprin's execution date was set finally for Oct. 10, 2019, 16 years and four months after Halprin's initial death sentence. Now for the evocative subject matter for editorial writing.

Halprin's last hope to avoid an execution was a pending motion for a stay before the Texas Court of Criminal Appeals. In that motion, Halprin's counsel asserted that new facts showed that his trial judge was biased against Halprin because he is Jewish. He asserted that this violated due process and his right to the free exercise of religion.

These new facts included the contents of a May 18, 2018 newspaper article which appeared in The Dallas Morning News, in which Judge Cunningham was publicly exposed as a bigot. The article's principal named source was the judge's estranged brother, Bill Cunningham, who came to the paper earlier that week saying his brother had been a lifelong racist. Bill Cunningham was concerned about the power that might be held by someone like his brother who, at the time, was running for Dallas County commissioner. He was motivated to come forward by a visit his brother made to him at his home earlier in the week during which he and his husband, who is black, were threatened and his husband was repeatedly referred to as "your boy."

The brother also disclosed that a trust established for the judge's children included a stipulation intended to discourage the children from marrying a person of another race or of the same sex. "I strongly support traditional family values," Judge Cunningham said. "If you marry a person of the opposite sex that's Caucasian, that's Christian, they will get a distribution."

Two briefs supporting Halprin's motion for a stay were submitted—one by his public defender to which were appended numerous affidavits attesting to Judge Cunningham's bigotry and anti-Semitism, and the second, an amicus brief, submitted on behalf of (approximately 100) "Prominent Jewish Members of the State Bar of Texas" and various highly respected Jewish organizations.

The submitted affidavits were to the effect that Cunningham "did not like anyone not of his race, religion or creed, and that he was very vocal about his disapproval." A person who grew up with him and knew him intimately found Cunningham "so hateful" that he would regularly use offensive language "such as 'nigger,' 'wetback,' 'spic,' 'kike,' and 'the fuckin' Jews.'"

Cunningham "would often use race or ethnicity to refer to people … who were members of groups he did not like… . If someone were actually African American, he would call them 'Nigger' and by their first name. It was his signature way of talking about people of color. For Jewish people, he would say a 'fuckin' Jew' or a 'goddamn kike.'" The Criminal Court of Appeals also had before it an affidavit from someone who knew the judge well, "Vic said any 'nigger' or 'wetback' walking into his courtroom knew they were going to go down."

The prosecutor submitted no papers to counter the many assertions of bigotry and anti-Semitism raised by the defendant's moving papers. On Oct. 4, six days before the date set for Halprin's execution, the Texas Court of Criminal Appeals granted a stay based on Halprin's discrimination claim and remanded the case to the convicting court for review. The remand order does not specify what exactly is to take place during the remand hearing.

Texas is the least hospitable state in our union if one is charged with a death penalty crime. According to Robert Dunham of the Death Penalty Information Center, since 1976, Texas has executed 567 inmates in its state and federal courts. The Halprin case challenges its death penalty culture. A police officer was killed during the commission of a felony. The defendant confessed and, although the presiding judge was later exposed as a raving anti-Semite and a virulent bigot, those odious characteristics are not patent on the record.

Although the record is filled with the many discretionary calls the judge made throughout Halprin's case, none appears outside the boundaries of his discretion. Yet he exercised his discretion with the mindset of a bigot and an anti-Semite. No reasonable judicial system can tolerate the results of a trial by a judge who has been outed as publicly as Judge Vickers "Vic" Cunningham has. Halprin will likely get a reprieve of an uncertain duration because of the fortuitous circumstance that the trial judge's brother was stuck with a bolt of civic responsibility 16 years after he was sentenced to death.

This case presents another example of why so many oppose capital punishment. We may never know what variable or factor beyond the record could affect decision-making by jurors if not judges. The death penalty is different, and while thankfully there was no similar case in our state, we are thankful that capital punishment has been abolished in New Jersey.