On Friday at 12:01 a.m., an Oklahoma prisoner named Steven Keith Hatch is scheduled to be executed for his role in a 1979 double murder with another man, Glen Burton Ake.
The case might not merit much notice except that Mr. Hatch, who is to be lethally injected, did not commit either of the murders - while Mr. Ake, who did, is serving a life sentence with the possibility of being released on parole in two years.
Under the Effective Death Penalty Act, which Congress passed this spring to speed executions by limiting appeals, Hatch's appeal process has been exhausted.
Many Oklahomans who support the death penalty are bidding Hatch good riddance after 12 years of appeals. But others, including opponents of capital punishment, say Hatch's case is an example of how arbitrary and seemingly unfair the death penalty application can be. It is a view shared by one of the judges who sentenced Hatch to death.
"Can you give the nontrigger man a greater penalty?" asks Stan Chatman, the district judge who sentenced Hatch in 1984. "I didn't think it was fair, and didn't think I could do that. I personally still don't believe it is fair."
What changed Judge Chatman's mind was a talk with the Oklahoma Criminal Appeals panel. The three-judge body advised him, in an informal discussion, that because of the brutality of the crime the judge should "consider all forms of punishment, including the death penalty," Chatman says.
Some legal scholars say such a discussion is highly unusual since judges, like juries, are bound to remain strictly independent.
The facts in the 1979 crime are not in dispute. Hatch and Ake, his brother-in-law, were drifters who worked the oil rigs that dot the Texas and Oklahoma area. They got high on cocaine and liquor and randomly stopped at a remote house in Okarche, Okla., where the Rev. Richard Douglass, a Baptist minister, his wife, Marilyn, and their two children, were about to sit down to dinner. The father, mother, and 16-year-old son were hogtied while the two men raped the daughter, an eighth-grader who had recently been crowned Miss Teen Oklahoma, in another room. Afterward, the two men ate the dinner Mrs. Douglass had prepared.
Then, according to all later testimony, including that of the surviving victims, Ake told Hatch to go outside and get the car. He did so, waiting five minutes. He then heard six shots fired from Ake's .357 Magnum. The men were later arrested in Colorado.
In a key decision after their arrest, Ake chose to be tried by a jury, while Hatch chose to be tried by a judge. Ake was first given the death penalty by a jury. But in a landmark US Supreme Court ruling in 1985, his case was sent back to the lower court since Ake was found not to have had adequate counsel for an insanity defense. A new jury sentenced him to life in prison.
Hatch was given the death penalty, a sentence affirmed by two other judges.
Hatch testified that he did not know Ake was going to commit murder. Supreme Court standards in such cases are based on a prior awareness of intent to murder, combined with factors related to the recklessness of the crime.
Oklahoma Attorney General Drew Edmundson says the issue of Hatch's execution is not a moral one, but a false choice - since in his view both Ake and Hatch deserve to die.
The case has been high profile in part because the son, Brooks Douglass, who with his sister survived Ake's gunshot, is now a state senator championing victim's rights to watch executions, and who last week said he has been contacted for book and movie rights to his life story.
"We are going to execute someone on Friday who was standing outside the house when the murders were committed," says Mark Henrickson, president of the Oklahoma chapter of the American Civil Liberties Union. "The lesser crime is getting the greater penalty."